U.S. v. Hall

• Decision Date: 28 March 1988
• Docket Number: No. 86-1897,86-1897
• Citation: 843 F.2d 408
• Parties: UNITED STATES of America, Respondent-Appellee, v. Marvin R. "Rusty" HALL, Petitioner-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 408

843 F.2d 408

UNITED STATES of America, Respondent-Appellee, v. Marvin R. "Rusty" HALL, Petitioner-Appellant.

No. 86-1897.

United States Court of Appeals Tenth Circuit.

March 28, 1988.

Richard D. Esper, El Paso, Tex., for petitioner-appellant.

Susan W. Pennington, Asst. U.S. Atty. (Layn R. Phillips, U.S. Atty., and Kenneth P. Snoke, Asst. U.S. Atty., were on the brief), for respondent-appellee.

Before HOLLOWAY, Chief Judge, MOORE and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Marvin Ralph "Rusty" Hall appeals from the district court's denial of his motion to vacate his conviction. For the reasons explained, we affirm.

In July, 1982, a grand jury indicted Hall charging him with conspiring to commit certain drug felonies in violation of 21 U.S.C. Sec. 846 and engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. Sec. 848. Hall was convicted on both counts. He appealed, and this court vacated the conspiracy conviction on the grounds that 21 U.S.C. Sec. 846 (conspiracy) is a lesser offense included within 21 U.S.C. Sec. 848 (continuing criminal enterprise). United States v. Dickey, 736 F.2d 571, 596-97 (10th Cir.1984); see Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). Hall then brought this collateral attack on his conviction pursuant to 28 U.S.C. Sec. 2255 arguing that his CCE conviction should be vacated. He claimed first that the conspiracy count of the indictment was improperly used by the jury to convict him of engaging in a continuing criminal enterprise and, second, that he was denied the effective assistance of counsel both at trial and on appeal. The district court denied Hall's motion to vacate his CCE conviction. Hall appeals.

I.

Hall's first claim is that he was improperly convicted of engaging in a continuing criminal enterprise. More specifically, Hall contends that (1) because the conspiracy charged in count one under section 846 is a lesser included offense of section 848, it was improperly used as a predicate offense underlying the CCE charge in count two, and (2) the overt acts listed in the count one conspiracy charge were improperly used to satisfy the "continuing series of violations" requirement of the CCE statute.

Hall did not raise either of these claims at trial or on appeal; he raises them for the first time in this collateral attack on his conviction. We note that Hall potentially faced a serious problem in his attempt to bring this collateral attack given his failure to raise these issues on appeal. We have held that "[section] 2255 is not available to test the legality of matters which should have been raised on appeal." United States v. Khan, 835 F.2d 749, 753 (10th Cir.1987). In United States v. Frady, 456 U.S. 152, 165, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982), the Supreme Court stressed that "a final judgment commands respect," and announced the following standard for obtaining collateral relief:

[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) "cause" excusing his double procedural default, and (2) "actual prejudice" resulting from the errors of which he complains.

Were this standard to be employed we would face a much different case.

However, the government failed to argue, either below or on this appeal, that the Frady standard should apply. "It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below." Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). We hold that because of the government's failure to raise this issue, it is deemed to have waived its interest in the finality of the judgment. See United States v. Auerbach, 745 F.2d 1157, 1160 (8th Cir.1984) (the government did not raise the "cause and prejudice" issue in the district court, and the appellate court accordingly refused to decide the case on that ground); United States v. Caceres, 745 F.2d 935, 936 (5th Cir.1984) (defendant did not raise an issue on direct appeal, but because the government did not raise the waiver issue to the district court it could not rely on it). Cf. Barksdale v. Blackburn, 670 F.2d 22, 24 (5th Cir.) (failure to raise the claim that defendant had not exhausted state remedies constitutes a waiver, and the court of appeals may decide the issue on the merits), cert. denied, 457 U.S. 1109, 102 S.Ct. 2912, 73 L.Ed.2d 1319 (1982).

The first error Hall alleges is the use of the conspiracy violation to satisfy one of the elements of the CCE count. The essential elements of the crime of engaging in a continuing criminal enterprise are listed in 21 U.S.C. Sec. 848(d) and include the following:

(1) a continuing series of violations of the Controlled Substances Act of 1970, 21 U.S.C. Secs. 801 et seq., (2) the violations were undertaken in concert with five or more other persons with respect to whom the accused acted as organizer, supervisor or manager, and (3) from which the accused obtained substantial income or resources.

Dickey, 736 F.2d at 587. Hall argues that given the "in concert" requirement of section 848, "there can never be a Sec. 848 violation without a violation of Sec. 846." We agree that the conspiracy in this case is a lesser included offense of engaging in a criminal enterprise. For this reason we vacated Hall's conspiracy conviction and sentence. Dickey, 736 F.2d at 597. However, it does not follow that, as Hall argues, a lesser included conspiracy may not "be used as the felony violation required by Sec. 848(b)(1)."

The language of section 848 is plain. The first element of the crime is the violation of "any provision of this subchapter." 21 U.S.C. Sec. 848(b)(1). We find no ambiguity here. As the Second Circuit points out:

Section 848(a)(1) provides that any felony violation of Subchapters I and II of Chapter 13 of Title 21 is an eligible predicate, and nothing in the text of either Sec. 848 or Sec. 846 suggests that although a Sec. 846 conspiracy is such a felony it does not qualify as a predicate for a Sec. 848 charge. The reference in Sec. 848 to "any" felony violation of the narcotics laws does not mean "any felony violation except a Sec. 846 conspiracy".

United States v. Young, 745 F.2d 733, 750 (2d Cir.1984) (emphasis original), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). "Absent a clearly expressed legislative intention to the contrary," this clear language "must ordinarily be regarded as conclusive." Consumer Prod. Safety Comm. v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). We find no indication that Congress did not intend a violation of section 846 to be eligible as a basis for a section 848 charge. Young, 745 F.2d at 751 (review of legislative history reveals "no indication whatsoever" of a contrary legislative intent).

Nonetheless, Hall argues that a lesser included conspiracy violation is ineligible as a predicate for a CCE charge. He cites for this proposition the cases of United States v. Jefferson, 714 F.2d 689 (7th Cir.1983), vacated, 474 U.S. 806, 106 S.Ct. 41, 88 L.Ed.2d 34 (1985), and United States v. Lurz, 666 F.2d 69 (4th Cir.1981), cert. denied, 459 U.S. 843, 103 S.Ct. 95, 74 L.Ed.2d 87 (1982). In both cases the court was called upon to decide whether the government subjected a defendant to double jeopardy by using evidence of a conspiracy for which he or she had already been convicted to prove one or more of the elements of a CCE violation. In dicta both courts suggested that section 846 may not "serve as [a] predicate offense[ ] for a conviction under Sec. 848." Jefferson, 714 F.2d at 702 n. 27. See also Lurz, 666 F.2d at 76.

These cases are not persuasive. The Jefferson opinion was vacated by the Supreme Court, 474 U.S. at 806, 106 S.Ct. 41. In United States v. Markowski, 772 F.2d 358, 361 n. 1 (1985), cert. denied, 475 U.S. 1018, 106 S.Ct. 1202, 89 L.Ed.2d 316 (1986), the Seventh Circuit left open the question of whether that circuit would follow the Jefferson dicta or "now permit the use of convictions under Sec. 846 as predicate offenses." Jefferson therefore offers only weak, if any, support for Hall's claim. Furthermore, the Fourth Circuit has expressly abandoned the dicta in Lurz. The court held that "the dicta in Lurz " is "not the law of this circuit," and that "the government may rely on a Sec. 846 violation to establish a Sec. 848 offense." United States v. Ricks, 802 F.2d 731, 737 (4th Cir.) (en banc), cert. denied, --- U.S. ----, 107 S.Ct. 650, 93 L.Ed.2d 705 (1986). This holding places the Fourth Circuit in agreement with a number of other circuits that have addressed this issue. Young, 745 F.2d at 748-52; United States v. Schuster, 769 F.2d 337, 345 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Brantley, 733 F.2d 1429, 1436 n. 14 (11th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Middleton, 673 F.2d 31, 33 (1st Cir.1982). We hold that the government may rely on a section 846 violation to establish a section 848 violation. There was no error in allowing his conspiracy violation to establish a CCE offense.

Hall raises a second objection to his CCE conviction. Besides objecting to the use of the conspiracy violation itself, Hall objects to the government's reliance on specified overt acts listed in the conspiracy count to satisfy the "series of violations" requirement in the CCE count. Hall claims that the court improperly lead the jury to believe that if it found him guilty of conspiracy, it had already found the existence of a continuing series of violations. The court carefully instructed the jury that to convict Hall it had to find that he committed at least three felony violations of federal drug laws. The court also instructed that each of the specified overt acts would, if proved, constitute...