U.S. v. Becker, 89-1399

• Decision Date: 11 December 1989
• Docket Number: No. 89-1399,89-1399
• Citation: 892 F.2d 265
• Parties: UNITED STATES of America v. Stephen BECKER a/k/a/ "Steven Fox" a/k/a/ "Dr. Fox". Appeal of Stephen BECKER. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 265

892 F.2d 265

UNITED STATES of America v. Stephen BECKER a/k/a/ "Steven Fox" a/k/a/ "Dr. Fox".

Appeal of Stephen BECKER.

No. 89-1399.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Dec. 11, 1989.

Decided Dec. 19, 1989.

Thomas M. Dawson, Leavenworth, Kan., for appellant.

Michael M. Baylson, Walter S. Batty, Jr., Ewald Zittlau, U.S. Attys. Office, Philadelphia, Pa., for appellee.

Before SLOVITER, GREENBERG and SEITZ, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Appellant Steven Becker appeals from his conviction, following a bench trial, of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846, of violating the Travel Act, 18 U.S.C. § 1952, of engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 848, and of aiding and abetting in violation of 18 U.S.C. § 2. Becker asserts first that there was insufficient evidence to support his CCE conviction because the evidence did not support a finding that he managed, controlled, or organized the requisite five people. He also argues that the Pennsylvania prosecution was barred by an earlier West Virginia conviction and that the indictments against him in four jurisdictions comprise a piecemeal and fragmentary prosecution that has had the effect of harassing him financially and emotionally.

Becker does not contest that he was involved in a large scale drug operation that involved smuggling marijuana into the country and then reselling it. Evidence presented at the trial in the Eastern District of Pennsylvania showed that several large scale sales, involving over 1,000 pounds of marijuana each, took place in Pennsylvania, New Jersey, and Massachusetts between 1981 and 1985. The indictment alleges and the testimony shows that in furtherance of his sales, Becker rented a farmhouse in Massachusetts and also tried to interest some of the participants in these transactions in purchasing a piece of property in Oregon with a deepwater dock to facilitate the smuggling of Colombian marijuana into the country.

Becker was convicted in 1989 in the district court of West Virginia on charges of conspiracy to manufacture and distribute marijuana in violation of 21 U.S.C. § 841 and 21 U.S.C. § 846 which involved his attempt to grow marijuana on a farm in West Virginia. He was sentenced to five years on that conviction. He has also been indicted for federal offenses in Oregon and Massachusetts, and those matters are pending. ¹

II.

We turn first to Becker's contention that the evidence was insufficient to prove that there were five or more persons with respect to whom Becker occupied a position of organizer, supervisor or manager as required under the CCE statute. He concedes that the trial court "would be accurate" in naming four persons who were in that position, see Brief for Appellant at 23, but argues that the court was erroneous in concluding that Cangro, Hanman, Camel and Demaio were organized, supervised or managed by him.

Becker argues that none of the witnesses for the government testified that they considered themselves as employed or working for him or controlled by him. Of course, the witness' own characterization of the relationship is not determinative for our purposes. Camel testified that Becker provided "help, guidance, advice." App. at 165. Moreover Becker provided large quantities of marijuana to Cangro and Camel without requiring immediate payment, and was satisfied to be paid as they sold portions of the substance. A consignment arrangement has been held to give the provider of the substance the necessary supervisory control of the participants. See United States v. Apodaca, 843 F.2d 421, 426-27 (10th Cir.) cert. denied, --- U.S. ----, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988).

Even if the relationship between none of the four individuals identified by the trial court and Becker was sufficient to make Becker that individual's "supervisor" or "manager," the necessary relationship can be found if Becker can be fairly viewed as the "organizer" of the transactions. See United States v. Aguilar, 843 F.2d 155, 157-58 (3d Cir.) cert. denied, --- U.S. ----, 109 S.Ct. 305, 102 L.Ed.2d 324 (1988). The testimony fully supports a finding that Becker organized the various marijuana transactions. Accordingly we reject Becker's contention that there was insufficient evidence to support his conviction for engaging in a continuing criminal enterprise.

III.

Becker's remaining claims on appeal arise from the same underlying contention; he alleges that one conspiracy existed, that the government has split that conspiracy into subsets, and that it is proceeding to prosecute him separately for each individual subset. The government responds first by arguing that Becker has waived his double jeopardy claim by raising it only after the trial. Becker did not contend until his sentencing that the Pennsylvania conviction was barred by the Double Jeopardy Clause of the Fifth Amendment. A double jeopardy claim may be waived if not raised at trial. See 1 Wright, Federal Practice and Procedure, § 193 (2d ed. 1982) (Double jeopardy falls into the class of affirmative defenses about which F.R.Cr.P. 12 is silent; a defendant can raise it before or during the trial, but if it is not raised, it is waived.); M. Rhodes, Orfield's Criminal Procedure under the Federal Rules (2d ed. 1985) (same); United States v. Bascaro, 742 F.2d 1335, 1365 (11th Cir.1984) (defendant waived double jeopardy argument because not raised until appeal); United States v. Perez, 565 F.2d 1227, 1232 (2d Cir.1977) ("The constitutional immunity from double jeopardy is a personal right which, if not affirmatively pleaded by the defendant at the time of the trial, will be regarded as waived."). Becker's failure to raise his double jeopardy claim earlier constitutes an adequate basis to reject his double jeopardy claim. Nonetheless, we reach the merits of his claim that the conspiracy charged in the West Virginia indictment was part of the conspiracy charged in the Pennsylvania indictment because that analysis also underlies his separate contention that the separate criminal prosecutions are harassing.

The government agrees that the double jeopardy clause prohibits it from splitting one conspiracy into several prosecutions. See Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942). For purposes of our review, we may look only to the conviction on appeal and the West Virginia conviction which preceded it. Although the general test used to determine whether the second prosecution is barred is the same evidence test, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (test for whether the two offenses are the same is whether each provision requires proof of a fact that the other does not), this court applies the "totality of the circumstances" test when the charge involves a conspiracy. See United States v. Liotard, 817 F.2d 1074, 1078 (3d Cir.1987). In Liotard, the criteria that the court examined included: (1) the locus criminis of the two conspiracies; (2) the degree of temporal overlap between the two conspiracies; (3) the overlap of personnel between the two conspiracies; (4) the overt acts charged and the role played by the defendant in the two indictments. Id. at 1078.

Applying the Liotard test to this case, we conclude that the Pennsylvania and West Virginia indictments involved two separate conspiracies. The transactions alleged in the two indictments took place in separate states. See United States v. Bendis, 681 F.2d 561 (9th Cir.1982) (two conspiracies existed, in part, because first conspiracy implicated a part of the world that the second one did not) cert. denied, 459 U.S. 973, 103 S.Ct. 306, 74 L.Ed.2d 286 (1982). The West Virginia...