U.S. v. Baker

• Decision Date: 26 June 1990
• Docket Number: 88-3358,Nos. 88-3216,88-3409 and 88-3425,s. 88-3216
• Citation: 905 F.2d 1100
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Orville BAKER, Roy Wireman, Skid Ronnie Manns, and Ellis Manns, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1100

905 F.2d 1100

UNITED STATES of America, Plaintiff-Appellee, v. Orville BAKER, Roy Wireman, Skid Ronnie Manns, and Ellis Manns, Defendants-Appellants.

Nos. 88-3216, 88-3358, 88-3409 and 88-3425.

United States Court of Appeals Seventh Circuit.

Argued March 2, 1990.

Decided June 26, 1990.

Andrew B. Baker, Jr., Asst. U.S. Atty., Hammond, Ind., Rick L. Jancha, William Grimmer, Asst. U.S. Attys., South Bend, Ind., Shannan Hough, Law Student, for U.S.

Julie L. Friedman, Chicago, Ill., for Orville Baker.

Bruce H. Bornstein, Chicago, Ill., for Roy Wireman.

Suzanne Philbrick, Oak Lawn, Ill., for Skid R. Manns.

David Vandercoy, Valparaiso University, School of Law, Valparaiso, Ind., for Ellis Manns.

Before CUMMINGS, POSNER, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Ellis Manns and Wayne Stone managed a junior varsity marijuana network. They harvested marijuana growing wild in Iowa and Nebraska--"weed" in more senses than one. Called "ditch weed" in this record, it was gathered by the thousands of pounds. Ditch weed is so low in quality that it sold for only $30 to $40 per pound, and to make it worthwhile to deliver at any distance Manns and Stone had to stuff automobiles to the brim.

The indictment charged 27 persons, and the defendants were tried in five groups. Our group includes Ellis Manns, his brother Skid Ronnie Manns, Orville Baker, and Roy Wireman. They were tried with Scottie Manns (another brother), Larry Geesa, and Ronald Huff; Weddie Manns, Ellis's son, was included in the group but pleaded guilty before trial. The jury acquitted Geesa and Huff; Scottie Manns was convicted but has not appealed. The jury convicted Ellis Manns of conspiracy to possess marijuana with intent to distribute it, interstate travel in aid of racketeering, possession of more than 100 kilograms of marijuana with intent to distribute it, possession of more than 50 kilograms of marijuana (on a different occasion) with intent to distribute it, and being the kingpin of a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848. It acquitted Ellis of 30 other charges. The CCE conviction is responsible for the sentence of 18 years' imprisonment without possibility of parole. The jury convicted Skid Ronnie Manns of conspiracy to possess marijuana with intent to distribute it, five counts of possessing marijuana with intent to distribute (one under 50 kilograms, one over 50 but less than 100, and three over 100 kilograms), and five counts of interstate travel in aid of racketeering. He was acquitted on four counts. His sentence was 12 years. Wireman was found guilty of all three charges laid against him: conspiracy, possession of more than 50 kilograms of marijuana with intent to distribute, and of abetting interstate travel in aid of racketeering. He was sentenced to 14 years in prison. Baker was convicted of a single count of possessing more than 50 kilograms of marijuana with intent to distribute it and was acquitted on two charges. He drew 11 years. The similarity of the sentences stands in marked contrast to the substantially different gravity of the charges on which the four were convicted, but this case is not governed by the Sentencing Guidelines.

I

Ellis Manns contests his conviction under the CCE statute. One of the elements of the CCE offense is that the defendant supervise five or more others in "a continuing series of violations" of the drug statutes. Courts commonly define "series" as three or more offenses; the jury instructions in this case did so. The jury convicted Ellis Manns of exactly three drug offenses: conspiracy to distribute marijuana and two possession offenses. It may of course have believed that he committed many other crimes; it is not limited to those charged in the indictment. United States v. Markowski, 772 F.2d 358, 361-62 (7th Cir.1985); United States v. Aiello, 864 F.2d 257, 265 (2d Cir.1988). The difficulty arises because of an instruction that a conspiracy counts as a predicate offense. So the jury may have convicted Ellis Manns as a kingpin on finding that he possessed marijuana twice and joined the conspiracy to distribute it. If a conspiracy is not a proper predicate offense, and if three is the minimum, the conviction may not stand.

Seven courts of appeals have held that a drug conspiracy may be counted toward the three. United States v. Middleton, 673 F.2d 31, 33 (1st Cir.1982); United States v. Young, 745 F.2d 733, 750-52 (2d Cir.1984); United States v. Fernandez, 822 F.2d 382, 384-85 (3d Cir.1987); United States v. Ricks, 802 F.2d 731, 737 (4th Cir.1986) (in banc); United States v. Schuster, 769 F.2d 337, 345 (6th Cir.1985); United States v. Hall, 843 F.2d 408, 410-11 (10th Cir.1988); United States v. Brantley, 733 F.2d 1429, 1436 n. 14 (11th Cir.1984). None forbids use of a drug conspiracy. Young, the leading case, relies on the language of Sec. 848(c)(2), which speaks of a "continuing series of violations of this subchapter or subchapter II of this chapter". Section 846, which defines the drug conspiracy offense, is part of "this subchapter". QED. Our court initially forbade use of the conspiracy as a predicate offense, United States v. Jefferson, 714 F.2d 689, 702 n. 27 (7th Cir.1983), but more recently deemed the question open, United States v. Bond, 847 F.2d 1233, 1238 n. 1 (7th Cir.1988); United States v. Moya-Gomez, 860 F.2d 706, 750 n. 38 (7th Cir.1988), in large part because the Supreme Court vacated Jefferson, 474 U.S. 806, 106 S.Ct. 41, 88 L.Ed.2d 34 (1985). The time has come to resolve it.

The difficulty with using the "plain language" of Sec. 848(c)(2) as the foundation for the proposition that a drug conspiracy is a predicate offense comes from Sec. 848(c)(2)(A), which requires the prosecution to establish that the "series of violations" were "undertaken ... in concert with five or more other persons". An in-concert requirement means a conspiracy, and for this reason the Supreme Court held in Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), that the conspiracy defined by Sec. 846 is a lesser included offense of the crime defined by Sec. 848. See also Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); United States v. Pace, 898 F.2d 1218, 1236-38 (7th Cir.1990). To treat a conspiracy as one of the "series of violations" to which Sec. 848(c)(2) refers is to say that it is a crime to commit a conspiracy in concert with other people, which is redundant. What sense would it make to allow the prosecution to count a conspiracy toward the three predicate offenses when the prosecutor must prove conspiracy anyway to satisfy Sec. 848(c)(2)(A)? Maybe a conspiracy other than the concert with five persons to which Sec. 848(c)(2)(A) refers would be a logical predicate, but how could such a conspiracy be part of the "continuing series" involving the five essential persons? A conspiracy is part of the essential "continuing series" only if it involves a concert among the kingpin and five subordinates--in which event it becomes a lesser included offense, and it is double counting to include it among the three predicates.

Incongruous results are not necessarily sufficient reason for rejecting a straightforward statute. So perhaps we should take the language at face value even though one conspiracy then counts toward both the "continuing series" and the "in-concert" requirements. Whether to do this depends in large measure on the meaning of the "series" requirement.

Treating a conspiracy--a crime that always exists when the prosecutor establishes the "concert" with five or more others--as a predicate whittles the "series" down to a minimum of two substantive crimes. Did Congress authorize a CCE conviction when the "series" may have no more than two substantive offenses? The legislative history does not help; it is silent on the meaning of "continuing series of violations". We know from the debates only that the statute is "a carefully crafted prohibition aimed at a special problem. [It] is designed to reach the 'top brass' in the drug rings, not the lieutenants and foot soldiers". Garrett, 471 U.S. at 781, 105 S.Ct. at 2413. Congress took a bead on the brass through the five-supervised-persons requirement in Sec. 848(c)(2)(A) and the substantial-income requirement of Sec. 848(c)(2)(B). The difference between two and three predicate offenses does not mark the line between top brass and foot soldiers.

Where, then, does the equation between "continuing series of violations" and three or more crimes come from? Other compound offenses, principally the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961-68, require two or more offenses. RICO depends on a "pattern" of racketeering, which means "at least two acts of racketeering activity", 18 U.S.C. Sec. 1961(5), characterized by "continuity plus relationship". H.J. Inc. v. Northwestern Bell Telephone Co., --- U.S. ----, 109 S.Ct. 2893, 2900, 106 L.Ed.2d 195 (1989). RICO itself specifies that it takes two to make a pattern; what says that it takes three to make a series?

Not Congress. The statute and its history are silent. Although many courts use three, the source of this requirement appears to be not the statute but the dictionary. The case cited most frequently for the equation between "series" and "three" is United States v. Valenzuela, 596 F.2d 1361, 1364-65 (9th Cir.1979), which neither discusses the subject nor cites any authority. A survey of the few opinions that cite other cases leads to United States v. Collier, 358 F.Supp. 1351 (E.D.Mich.1973), as the genesis. Collier does not rely on either the debates in Congress or the function of the series requirement. It relies on Webster's and Tarsia v. Nick's Laundry & Linen Supply Co., 239 Or. 562, 399 P.2d 28 (1965), which interprets the word "series" in an Oregon law. Tarsia obtained "three" from another dictionary.

We have nothing against dictionaries, but t...