U.S. v. Ambrose, s. 83-1213

• Decision Date: 17 July 1984
• Docket Number: Nos. 83-1213,s. 83-1213
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas AMBROSE, et al., Defendants-Appellants. to 83-1221, 83-1291.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 505

740 F.2d 505

UNITED STATES of America, Plaintiff-Appellee, v. Thomas AMBROSE, et al., Defendants-Appellants.

Nos. 83-1213 to 83-1221, 83-1291.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 8, 1984.

Decided July 17, 1984.

Dan K. Webb, U.S. Atty., James G. Schweitzer, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Elliot Samuels, James B. Haddad, Michael Jay Green, Chicago, Ill., for defendants-appellants.

Before WOOD and POSNER, Circuit Judges, and REYNOLDS, Chief District Judge. ^*

POSNER, Circuit Judge.

Ten former Chicago policemen--the "Marquette 10" as they came to be called in the course of their celebrated three-month trial--appeal from their convictions for protecting narcotics dealers in Chicago's Marquette district. The evidence, the sufficiency of which the defendants do not contest, shows that for more than three years the defendants protected two large drug distributorships in exchange for money and goods. They not only failed to arrest the distributors or their employees; they warned the distributors of impending raids by honest policemen, ignored many complaints from citizens about the activities of the distributors (who flaunted their wares so boldly that the press of customers caused traffic jams), and even beat up and threatened to kill a drug dealer who was competing with the protected distributors. The jury convicted all of the defendants of aiding and abetting federal narcotics violations, of extortion in violation of the Hobbs Act, and of violating the RICO statute. The judge sentenced each of the defendants to prison terms ranging from 10 to 20 years, followed by five years of probation.

The most difficult issue raised by these appeals is the interrelationship between the federal aiding and abetting statute, 18 U.S.C. Sec. 2, and the so-called "kingpin" statute, 21 U.S.C. Sec. 848 (Continuing Criminal Enterprises, Title II, Sec. 408, of the Organized Crime Control Act of 1970), which requires that heavy penalties be imposed on a person who commits a felony narcotics violation that "is a part of a continuing series of violations ... (A) which are undertaken by such person [the 'kingpin'] in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and (B) from which such person obtains substantial income or resources." 21 U.S.C. Sec. 848(b)(2). The minimum penalty for the kingpin is 10 years in prison with no possibility of parole. The maximum prison sentence is life imprisonment, again without possibility of parole. Section 848 is the only federal criminal statute that does not allow parole. See U.S. Dept. of Justice, U.S. Parole Comm'n, Rules and Procedures Manual Sec. 2.2-04 at p. 7 (Oct. 1, 1983). And because violation can be punished by life imprisonment, neither suspension nor probation is possible even if the sentence is for a shorter term than life. This is clear from 18 U.S.C. Sec. 3651; but to make assurance doubly sure the kingpin statute expressly forbids suspension or probation. See 21 U.S.C. Sec. 848(c). However, time off for good behavior is allowed from other than life sentences; and for sentences of 10 or more years this enables the prisoner, by behaving himself, to cut his sentence by a third, and sometimes even more. See 18 U.S.C. Secs. 4161, 4162.

The defendants in this case are not the kingpins; the drug distributors whom they protected are (and in separate proceedings were sentenced to 15-year prison terms under the kingpin statute). The defendants argue that Congress, in establishing such harsh penalties for being a drug kingpin, could not have intended to subject mere aiders and abettors to equivalent penalties. No doubt this is correct, as the government concedes, with respect to those whom the kingpin organizes, supervises, or manages. Otherwise there would be no differential punishment for the kingpin. His lowliest accomplices--mixers, runners, look-outs--would be subject to the same punishment as he, since the aider and abettor statute, as we are about to see, allows the aider and abettor to be punished A harder question (not separately raised by the defendants, but implicit in their challenge to the application of the aider and abettor statute to them) is whether, in sentencing the aider and abettor of a narcotics kingpin, the judge is bound by the minimum sentence provisions of section 848. Although a minimum prison sentence of 10 years with no possibility of parole cannot be precisely equated to any sentence that allows for parole, it is approximately as severe as a 21-year sentence with parole. A person sentenced to 10 years in prison with no possibility of parole who earned his full good-time credits under 18 U.S.C. Sec. 4161 (but not the additional "industrial good time" credits that can be earned under section 4162) would serve 7 years, while a person sentenced to 21 years in prison would be eligible for parole after 7 years, see 18 U.S.C. Sec. 4205(a), though he would not be assured of parole then. (Parole is never mandatory in the federal system, see 18 U.S.C. Sec. 4206, and in fact most prisoners serve more than the one-third minimum before being paroled.) Obviously, either a minimum 10-year sentence without possibility of parole, or a minimum 21-year sentence with that possibility, takes from the trial judge a great deal of his sentencing discretion. This was Congress's desire with regard to the sentencing of the kingpin himself; but we must decide whether, in interpreting a different statute, the aiding and abetting statute, we should impute to Congress the same desire with regard to all of the kingpin's aiders and abettors.

as a principal. When a statute reveals on its face, as section 848 does, the legislators' purpose to make one class of persons punishable more heavily than another, a court will not defeat that purpose by applying the general aiding and abetting statute to the second class. Cf. United States v. Southard, 700 F.2d 1, 20 (1st Cir.1983). That is what we would be doing if we applied 18 U.S.C. Sec. 2 to the kingpin's nonsupervisory employees. But that is not what we are being asked to do. The defendants are not the kingpins' employees, but the kingpins' police protectors. Congress probably would have wanted them to be punishable, in an appropriate case, as severely as the kingpins themselves. It is difficult for a large illegal enterprise to flourish without official protection; and the large revenues that such enterprises earn (the source of the kingpin's "substantial income or resources," referred to in the statute) enable them to dangle attractive bribes before policemen and other officials. The effectiveness of the kingpin statute might therefore be reduced if a kingpin's police protectors, such as these defendants, whose efforts enabled large drug enterprises to flourish brazenly for years, could never be punished as aiders and abettors. True, they could still be punished for aiding and abetting a violation of 21 U.S.C. Sec. 846, a statute that also carries heavy penalties. But the penalties are not nearly so heavy as those under section 848, so that under the position urged by these defendants the aider and abettor could not be punished as severely as the principal even if he was just as culpable. We do not think that Congress intended this result.

The aiding and abetting statute states: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 18 U.S.C. Sec. 2(a). Although this language, like that of its predecessor provision ("Whoever ... aids, abets, [etc.] is a principal," Act of March 4, 1909, Sec. 332, 35 Stat. 1152), makes clear that an aider and abettor can be punished as severely as the principal, it does not make clear that he must always be punished so severely. History is against such an interpretation. The distinction between "principal" and "aider and abettor" goes back to the time when all felonies carried the same sanction--death. By enabling the courts to punish a class of less culpable offenders--aiders and abettors as distinct from principals--less severely, the distinction introduced a welcome element of gradation into the sentencing of felons. See 4 Blackstone, Commentaries on the Laws of England 39 (1769); Perkins, Parties to Crimes, 89 U.Pa.L.Rev. 581, 613-15 Since section 848 does not prescribe all penalties but only minimum penalties, equating the punishment of a kingpin's aider and abettor to that of the kingpin would not prevent the judge from giving the aider and abettor a lighter sentence, provided that the judge was minded to sentence the kingpin to a longer term than the minimum provided in the statute. But the curtailment of sentencing discretion would still be very great, because the minimum sentences are so severe and because aider and abettor liability is defined so broadly. Learned Hand's classic definition requires only that the alleged aider and abettor "in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek by his action to make it succeed." United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938); see also Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949); United States v. Farid, 733 F.2d 1318, 1319 (8th Cir.1984); United States v. Beck, 615 F.2d 441, 448-49 (7th Cir.1980). There is nothing said about the magnitude and essentiality of the aider and abettor's role. A policeman who took an isolated bribe from a kingpin but did not engage in a prolonged and systematic protection racket, as these defendants did, would still be an aider and abettor of the kingpin, and therefore under the view that the aiding and abetting statute mechanically incorporates the whole punishment schedule of section 848 would have to be sentenced...