U.S. v. Becton
| Citation | 751 F.2d 250 |
| Decision Date | 11 February 1985 |
| Docket Number | No. 84-1311,84-1311 |
| Parties | UNITED STATES of America, Appellee, v. Roosevelt Theodore BECTON, Jr., Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Thomas E. Dittmeier, U.S. Atty., Michael W. Reap, Asst. U.S. Atty., St. Louis, Mo., for appellee.
Arthur S. Margulis, Thomas J. Cotter, Margulis & Grant, P.C., St. Louis, Mo., for appellant.
Before BRIGHT, JOHN R. GIBSON and FAGG, Circuit Judges.
Roosevelt Theodore Becton stands convicted of conducting a continuing criminal enterprise 1 (Count I), two Travel Act 2 violations (Counts III and IV), and possession of cocaine 3 (Count VI, a misdemeanor). The district court 4 sentenced him to twenty-five years' imprisonment (without parole) on Count I and fined him $25,000. In addition, the court imposed lesser concurrent prison terms on the other counts, 5 plus fines totalling an additional $25,000. Becton appeals. We affirm the conviction on Counts I, III, and VI and reverse on Count IV, the second Travel Act violation.
Count I of the indictment, alleging participation in a continuing criminal enterprise (CCE), constitutes the most serious charge against Becton. The language of the indictment essentially follows the statute, the government alleging that between January 1, 1977, and August 18, 1983, Becton knowingly and willfully engaged in a continuing criminal enterprise by violating felony provisions of the Controlled Substances Act, 6 in concert with at least five other persons over whom Becton occupied a position of organizer, supervisor, or manager, and that he obtained substantial income and resources from these activities. Count I does not identify the persons Becton allegedly supervised, nor does it specify the underlying violations of the Controlled Substances Act. Other counts in the indictment, however, do allege numerous felony violations of the Controlled Substances Act.
The violations alleged in Counts II and V (conspiracy and possession of eight and one-half tons of marijuana) qualify as the sort of felonies that could establish a criminal enterprise. 7 In addition, Count II alleges a number of overt acts which amount to felonious conduct in furtherance of the conspiracy, including the procurement of large quantities of marijuana in Florida and Tennessee, distributing large amounts of marijuana in Missouri, and involvement with smuggling great quantities of marijuana into Texas.
The government presented evidence to support these charges, and to prove that Becton supervised at least five other persons in the criminal enterprise. It would serve no purpose to review all that evidence; we will only recount a few major incidents. 8 Edward Hindelang, a major marijuana importer, testified that his organization sold between $3 and $4.5 million worth of marijuana to Becton between 1976 and 1980. Steven Helmich testified that he once assisted Becton in weighing a truckload of marijuana, which he subsequently delivered to three different locations in St. Louis at Becton's direction. Helmich also testified that Becton sold $1 million worth of marijuana to Tony Olivastro between 1977 and 1979. Nathaniel Yancy testified that he purchased large quantities of marijuana from Becton, citing one purchase of 2,000 pounds. He also testified that he once delivered 4,000 pounds of marijuana to a buyer at Becton's direction. Becton arranged for the distribution of 7,000 pounds of marijuana from Fort Lauderdale, Florida in January 1980. Finally, the testimony of several witnesses established that Becton owned one-third of an 18,000 pound shipment of marijuana seized at the CDY warehouse in St. Louis County, Missouri in February 1980.
In addition to the possession and sale of marijuana, Becton indirectly and directly participated in smuggling-related activities. In August or September of 1979, the Hindelang organization smuggled 228,000 pounds of marijuana into Pascagoula, Mississippi, by ship. Two of Becton's relatives helped unload the vessel, and Becton received $80,000 for their services. In December of 1979, Hindelang attempted to smuggle another shipload of marijuana into Galveston-Houston, Texas. Becton arranged to have four of his relatives assist in unloading the ship, for which he would receive $20,000 per person, per day. However, state and federal agents detected the operation and arrested the participants, whereupon Becton arranged for Hindelang to provide his relatives with money for bail and attorneys' fees.
Turning to the Travel Act convictions, Counts III and IV of the indictment alleged that, on two occasions in January 1980, Becton travelled to Fort Lauderdale, Florida with the intent to promote an unlawful activity, and that while in Florida he performed or attempted to perform some act of promoting that activity. In support of these charges, the government proved that Becton procured the use of a house in Fort Lauderdale during January 1980. He travelled from Missouri to Florida twice that month, accompanied by Nathaniel Yancy, for the stated purpose of obtaining marijuana. During the first trip, Yancy and others distributed 7,000 pounds of marijuana from the house in Fort Lauderdale to a number of individual buyers, then Becton and Yancy returned to St. Louis. Becton did not manage to acquire any marijuana during the second trip. He informed Yancy that they would not be driving any marijuana back to St. Louis; instead, it would be delivered to St. Louis by a supplier.
After a two-week trial, the jury found Becton guilty on the CCE, Travel Act, and possession of cocaine charges. The district court denied Becton's motion for acquittal and entered a judgment of conviction on all counts.
Although appellant raises nine separate allegations of error, his arguments may be summarized as follows:
1. Insufficiency of the evidence to support each conviction, except the cocaine misdemeanor;
2. Errors in the admission of evidence relating to coconspirators' statements, the admission of other crimes evidence, the admission of testimonial summarization of evidence, and in permitting improper use of grand jury testimony;
3. Defectiveness of the indictment in Count I (CCE) in that the indictment failed to specify the requisite three or more predicate offenses;
4. Preindictment delay; and
5. Unconstitutionality of sentence under Count I or, alternatively, disproportionality of sentence.
We consider first those issues relating to Count I.
We recently had occasion to discuss the evidence necessary to support a CCE conviction. In United States v. Samuelson, 697 F.2d 255 (8th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1314, 79 L.Ed.2d 711 (1984), we stated:
A conviction for violation of [the CCE statute] requires the establishment of the following elements: the commission of a continuing series of violations of federal narcotics laws, in concert with five or more persons, by a person occupying a management or organizing position, who receives substantial income therefrom.
Id. at 259. We noted that other courts have defined a "series of violations" as three or more violations. Id. (citing United States v. Valenzuela, 596 F.2d 1361, 1364-65 (9th Cir.), cert. denied, 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1979)).
Becton argues that the evidence in this case does not establish that he organized, managed, or supervised five or more persons. He does not contest the proof concerning other elements of the CCE conviction, and we are satisfied that those elements have been proved by sufficient evidence. The facts set forth above establish that Becton directed the activities of Helmich, Yancy, and his relatives who unloaded marijuana from ships in Louisiana and Texas. In addition, evidence indicated that Becton coordinated a meeting of at least four other drug dealers at his condominium in Memphis, Tennessee, for the purpose of obtaining marijuana from an airplane scheduled to land in Arkansas.
We note that the supervisory relationship specified in the CCE statute need not have existed with regard to the five persons at the same time, that those five persons need not have acted in concert, and that the same type of supervision need not have been exercised over each person. Furthermore, the government need not prove that the supervisor had personal contact with each person. United States v. Dickey, 736 F.2d 571, 587 (10th Cir.1984); United States v. Phillips, 664 F.2d 971, 1013 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Bolts, 558 F.2d 316, 320 (5th Cir.), cert. denied, 434 U.S. 930, 98 S.Ct. 417, 54 L.Ed.2d 290 (1977), 439 U.S. 898, 99 S.Ct. 262, 58 L.Ed.2d 246 (1978). In addition, it is irrelevant that other persons, such as Hindelang, may have exercised supervision superior to Becton's. A defendant need not be the dominant organizer or manager of a criminal enterprise; the statute requires only that he occupy some managerial position. United States v. Oberski, 734 F.2d 1030, 1032 (5th Cir.1984); United States v. Losada, 674 F.2d 167, 174 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982). Viewing the evidence in the light of the above stated principles, we are satisfied that the government presented sufficient evidence to prove that Becton organized, supervised, or managed at least five other persons in this criminal enterprise. Accordingly, we reject Becton's challenge to the sufficiency of the government's evidence on the CCE charge.
The Travel Act, 18 U.S.C. Sec. 1952(a)(1982), provides as follows:
To continue reading
Request your trial
-
U.S. v. Lewis
...sentence is severe. The other CCE cases in this district also imposed long prison terms, but not life sentences. In United States v. Becton, 751 F.2d 250 (8th Cir.1985), a CCE defendant was sentenced to twenty-five years in prison and a $25,000 fine. The defendant in United States v. Kirk, ......
-
U.S. v. Pino-Perez
...of the kingpin offense. We so held in United States v. Moya-Gomez, 860 F.2d 706, 745-49 (7th Cir.1988); see also United States v. Becton, 751 F.2d 250, 254-55 (8th Cir.1984), and other decisions cited in Moya-Gomez, supra, at 746. For all we know, Pino-Perez is the employee of some superkin......
-
US v. Maling
...Moya-Gomez, 860 F.2d 706, 752 (7th Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989); United States v. Becton, 751 F.2d 250, 256-57 (8th Cir.1984), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985).5 Furthermore, a CCE indictment need not name or......
-
U.S. v. Stoner, 94-6377
...Moya-Gomez, 860 F.2d 706, 752 (7th Cir.1988), cert. denied, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989); United States v. Becton, 751 F.2d 250, 256-57 (8th Cir.1984), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985), we know of no cases allowing implicit incorpora......