Monsanto v. U.S.

• Decision Date: 31 October 2003
• Docket Number: No. 01-2286.,01-2286.
• Citation: 348 F.3d 345
• Parties: Peter MONSANTO Petitioner-Appellant, v. U.S.A., Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 345

348 F.3d 345

Peter MONSANTO Petitioner-Appellant, v. U.S.A., Respondent-Appellee.

No. 01-2286.

United States Court of Appeals, Second Circuit.

Argued: May 29, 2003.

Decided: October 31, 2003.

Colleen P. Cassidy, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, N.Y., for Petitioner-Appellant.

Anirudh Bansal, Assistant United States Attorney, for James B. Comey, United States Attorney for the Southern District of New York (George S. Canellos, Gary Stein, Assistant United States Attorneys, on the brief), New York, N.Y., for Respondent-Appellee.

Before: CALABRESI and SACK, Circuit Judges, and GARAUFIS, District Judge.^*

CALABRESI, Circuit Judge.

Petitioner-Appellant Peter Monsanto appeals from a decision of the United States District Court for the Southern District of New York (Ward, J.) dismissing his petition for a writ of habeas corpus. Appellant contends 1) that the district court was wrong to conclude that an error in the court's jury instruction at Monsanto's trial was harmless, and 2) that Monsanto's conviction for two offenses violates his constitutional right to be free from double jeopardy. We affirm.

I. Background

Appellant was charged, inter alia, with (a) participating in a pattern of racketeering that included eighteen acts (by Monsanto and by others) of murder, conspiracy to murder, and narcotics trafficking (Count I); (b) conspiring to participate in a pattern of racketeering (which included the same eighteen acts articulated in Count I) (Count II); (c) participating in a conspiracy to distribute heroin, in violation of 21 U.S.C. § 846 (Count III); and (d) conducting a continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. § 848 (Count IV).¹

Of the eighteen "acts of racketeering" alleged, three involved violations by Monsanto of federal narcotics laws.² In addition, the conspiracy to distribute heroin charged in Count III alleged twenty-five overt acts, thirteen of which involved Monsanto.³

At the close of the six-month jury trial, the district court instructed the jury. As to Counts I and II, the court said that, to convict the defendant of violating the RICO statutes, it must find that the defendant committed (or, as to Count II, conspired to commit) at least two racketeering acts. The court correctly told the jury that it would not be sufficient for each of the jurors to find the defendant had committed two of the predicate acts (e.g., with some jurors believing he committed only acts 1 and 2, and others believing he committed only acts 3 and 4); rather, the jurors must unanimously agree that the defendant had committed at least two specific predicate acts.

As to the CCE count, the district court instructed the jury that, to convict Monsanto of operating a continuing criminal enterprise, it must unanimously find "(1) that Monsanto committed one or more violations of the narcotics laws; (2) that the narcotics offenses committed by Monsanto were part of a continuing series of violations of the narcotics laws; (3) that Monsanto undertook to commit this series of violations in concert with five or more persons either named or unnamed in the Indictment; (4) that Monsanto occupied the position of organizer, supervisor, or manager with respect to each of these five or more persons; and (5) that Monsanto obtained substantial income or resources from this continuing series of violations." Monsanto v. United States, 143 F.Supp.2d 273, 276 (S.D.N.Y.2001). These instructions have not been challenged. The court, however, did not tell the jury that it needed to unanimously agree on which narcotics violations constituted the "series of violations." It also instructed them that, in deciding whether a series of violations had occurred, it could consider both the violations charged in the indictment and acts not charged in the indictment but proven by the government at trial.

The jury convicted defendant on all sixteen counts on which he was charged. In special interrogatories for the substantive RICO count, the jury unanimously found that the government had proven that Monsanto had committed, inter alia, Racketeering Act 5 (the conspiracy to distribute heroin) and Racketeering Act 8 (possession of heroin in July 1985). The jury also determined, however, that the government had not proven that Monsanto had committed Racketeering Act 7 (possession of heroin in October 1984). Nevertheless, in special interrogatories for the RICO conspiracy count, the jury unanimously found that the government had proven that Monsanto had conspired to commit all three of those Racketeering Acts. In addition, the jury convicted Monsanto of conspiracy to distribute heroin and of conducting a continuing criminal enterprise. But on these two latter counts, there were no special interrogatories. As a result, it was not established by a direct answer whether the jury agreed unanimously that the government had proven any particular set of overt acts with respect to the heroin conspiracy charge, or any specific narcotics trafficking offenses with respect to the CCE count.

Defendant was sentenced to life without parole on the CCE conviction. He was sentenced to two 20-year terms of imprisonment on the RICO counts to run consecutively to one another but concurrently with the life sentence imposed for the CCE violation. The court, relying on the law of this circuit which holds that § 846 drug conspiracy is a lesser included offense to the § 848 CCE offense, imposed no sentence of imprisonment on the heroin conspiracy conviction.

On direct appeal, Defendant argued, inter alia, (1) that the indictment was flawed because it failed to charge three eligible CCE predicates; (2) that, in the absence of a special interrogatory and verdict on the CCE predicates, the court could not be certain that the jury unanimously agreed on three specific and eligible predicates, and (3) that the jury charge allowed the jury to convict Defendant on the CCE count even if it found him guilty of the narcotics conspiracy alone. We affirmed, more than ten years ago. United States v. Simmons, 923 F.2d 934, 952 (2d Cir.1991).

In 1997, Defendant filed a pro se habeas petition pursuant to 28 U.S.C. § 2255, contending, inter alia, (1) that his convictions for violating both § 846 (conspiracy) and § 848 (CCE) violated his rights under the Double Jeopardy Clause; and (2) that the jury instructions allowed the conviction to rest on legally impermissible factual predicates. While the habeas petition was pending, the Supreme Court issued its decision in Richardson v. United States, which held that a jury in a CCE case "must unanimously agree not only that the defendant committed some `continuing series of violations' but also that the defendant committed each of the individual `violations' necessary to make up that `continuing series.'" 526 U.S. 813, 815, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). In view of Richardson, the district court allowed Monsanto to amend his petition to claim that the district court's jury instruction violated Richardson.

In August 1999, the district court rejected Monsanto's double jeopardy claim. Monsanto v. United States, 1999 WL 649047 (S.D.N.Y. Aug.25, 1999). The court concluded that, because the court had not imposed a sentence with respect to the § 846 conviction, any error in allowing both convictions to stand was harmless.

In April 2002, the court also denied Monsanto's Richardson claim. Monsanto v. United States, 143 F.Supp.2d 273 (S.D.N.Y.2001). First, the court held that "Richardson announced a new substantive rule of law which applies retroactively" to Monsanto's case. Id. at 279. Next, it rejected Monsanto's argument that the error was "structural" and therefore that it required automatic reversal; the court instead held that the error was subject to harmless-error analysis. Id. at 279-80. The court then concluded that the harmless-error inquiry articulated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) — under which an error is harmless only if the government can prove "beyond reasonable doubt that the error complained of did not contribute to the verdict obtained" — applied to this case. In so doing, the court rejected the government's argument that it should instead apply the harmless-error test employed in Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (holding that an error is harmless unless it "had substantial and injurious effect or influence in determining the jury's verdict") (quotation marks and citation omitted). The court concluded that the more deferential Brecht test had been intended to apply to habeas cases where a state court had already conducted an analysis under Chapman, and so, in a federal case like this where there had never been a Chapman analysis, the more stringent standard was appropriate. See Monsanto, 143 F.Supp.2d at 285.

Finally, the district court conducted the Chapman analysis pursuant to this Court's articulation — in United States v. Jackson, 196 F.3d 383, 386 (2d Cir.1999) — of the Supreme Court's test in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The court reviewed the evidence presented at trial and concluded "beyond a reasonable doubt that a guilty verdict would have been returned on the CCE count absent the Richardson error." Monsanto, 143 F.Supp.2d at 292. Having found that the jury, properly instructed, would have convicted Monsanto, the court held the Richardson error harmless and denied Defendant's habeas petition. This appeal followed.

II.

A.

"A continuing criminal enterprise, as proscribed by 21 U.S.C. § 848, is defined in part as `a continuing series' of felony drug violations of any of the provisions in the subchapters comprising §§ 801-971 of Title 21." United States v. Flaharty, 295 F.3d 182, 197 (2d Cir.2002). Like most other circuits, we have defined a "series" to include three or more violations. See United States v. Young, 745...