U.S. v. Hill

• Decision Date: 06 June 1995
• Docket Number: No. 94-5183,94-5183
• Citation: 55 F.3d 1197
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. David "Tex" HILL, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1197

55 F.3d 1197

UNITED STATES of America, Plaintiff-Appellant, v. David "Tex" HILL, et al., Defendants-Appellees.

No. 94-5183.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 1, 1994.

Decided June 6, 1995.

David G. Dake, Asst. U.S. Atty. (argued and briefed), Knoxville, TN, for U.S.

Herbert S. Moncier (briefed), David S. Wigler (argued), Knoxville, TN, for David "Tex" Hill.

Brandt W. Davis (argued and briefed), Knoxville, TN, for Donald R. Arden and Johnny H. Sparks.

Ralph E. Harwell, Harwell, Baumgartner & Willis, Knoxville, TN, for Luther G. Hill.

Gerald C. Russell, Maryville, TN, for Roy E. Sellars.

Kim A. Tollison, Federal Defender Services, Knoxville, TN, for Donna S. Suttles, Cheryl A. Freeman.

Charles B. Dungan, Jr., Maryville, TN, for William Samuel Orr.

Steven Oberman, Daniel & Oberman, Knoxville, TN, for Leon Kitts.

John E. Eldridge, Ray, Farmer, Eldridge & Hickman, Knoxville, TN, for Claude Richard Wall, Lloyd Eugene Cooper.

Joseph E. Costner, Maryville, TN, for Phillip C. Jones.

Steven G. Shope (briefed), Knoxville, TN, for Troy Max Campbell.

Jimmy Kyle Davis, Donald R. Coffey, Knoxville, TN, for Dick Chambers, Alice Faye Sauls.

Hubert D. Patty, Maryville, TN, for Thomas Randall Perkins.

Before: MERRITT, Chief Judge; KEITH and BOGGS, Circuit Judges.

MERRITT, Chief Judge.

The question before us is whether, and to what extent, the aiding and abetting clause of 18 U.S.C. Sec. 2 ¹ applies to the "illegal gambling business" statute, 18 U.S.C. Sec. 1955, a complex crime that in addition to illegality under state law as a predicate offense has requirements of size (five or more people), duration (30 days or more), and business activity ("whoever conducts, finances, manages, supervises, directs or owns") ². Finding persuasive a Second Circuit case holding that Sec. 2 does not apply to a similar drug enterprise statute (discussed below), the district court held that the structure and wording of the gambling statute and the legislative history evince a Congressional intent to leave unpunished those who merely aid and abet but do not themselves conduct the business. The district court was concerned about extending the net of such a complex statute as Sec. 1955 even further. It reasoned that the clear legislative policy not to punish small-scale gambling businesses, as well as bettors, would be thwarted by allowing prosecution under Sec. 2. In a careful opinion Judge Jarvis dismissed the aiding and abetting charges against the defendants-appellees, including the owners of various retail food establishments, gas stations and bars who are alleged to have assisted a gambling enterprise by allowing Tex Hill to put illegal poker and slot machines in each of their stores in return for a share of the illegal gambling profits. The district court held that the only criminal liability possible for these defendants would be for a direct violation of Sec. 1955. The government has appealed the dismissal of the aiding and abetting charges against all the defendants. We decide that we do have jurisdiction to hear this interlocutory appeal, and we reverse because we consider Sec. 2 applicable to the gambling statute when, but only when, the aider and abettor has knowledge of the general nature and scope of the illegal gambling enterprise and takes actions that demonstrate an intent to make the illegal gambling enterprise succeed by assisting the principals in the conduct of the business.

I. Jurisdiction

The government brings its appeal pursuant to 18 U.S.C. Sec. 3731. That section provides:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

Defendants Arden and Sparks contend that this Court does not have jurisdiction to entertain this appeal because only a portion of count two was dismissed. They argue that the statute only authorizes appeals from dismissals of whole counts, not parts thereof. This is substantially the position that Justice Stevens took in his concurrence in Sanabria v. United States, 437 U.S. 54, 78-80, 98 S.Ct. 2170, 2186-87, 57 L.Ed.2d 43 (1978). In his concurrence, Justice Stevens posited that Sec. 3731 only authorized appellate jurisdiction over dismissals as to any one or more counts. He contended that "[t]he statute does not refer to 'subunit[s] of an indictment' or 'portion[s] of a count,' but only to 'counts,' a well-known and unambiguous term of art." Id. at 79, 98 S.Ct. at 2186 (citation omitted).

Justice Stevens' view was not shared by the majority of the Court, nor is it the prevailing rule among the circuits that have confronted the question. In a footnote in Sanabria, the Court agreed with the appellate court that "Congress intended to authorize appeals from any order dismissing an indictment in whole or in part":

Congress could hardly have meant appealability to depend on the initial decision of a prosecutor to charge in one count what could also have been charged in two, a decision frequently fortuitous for purposes of the interests served by Sec. 3731. To so rule would import an empty formalism into a statute expressly designed to eliminate "[t]echnical distinctions in pleadings as limitations on appeals by the United States." H.R.Conf.Rep. No. 91-1768, p. 21 (1970); accord S.Rep. No. 91-1296, p. 5 (1970).

Id. at 69 n. 23, 98 S.Ct. at 2181 n. 23.

Aiding and abetting the violation of Sec. 1955 is an independent basis of criminal liability. It could just as easily have been charged in a separate count. In fact, the defendants' main contention--that to allow a conviction for aiding and abetting a violation of Sec. 1955 extends the net of liability further than Congress intended--is itself evidence that Sec. 2 provides an independent basis upon which a conviction could be secured. We, therefore, hold that the government has jurisdiction under Sec. 3741 to bring this appeal.

II. Discussion

A. The Problem of Applying Principles of Accomplice Liability to Complex Statutory Crimes

As the number of complex criminal statutory crimes has proliferated over the last 30 years, and as the government has attempted to expand the net of criminal liability under them by charging accomplices in addition to principals, the case law and therefore the theory of federal accomplice liability has fallen into some disarray. Even in the days of relatively simple crimes at common law and in earlier federal statutes, the various theories of accomplice liability were often difficult to apply. In this new era of "predicate offenses" with multiple "ancillary conditions" and mandatory and other sentencing enhancements, the new complexity of the statutes is causing disparate results based on conflicting ideas of accomplice liability.

For example, the continuing criminal enterprise statute punishes drug "kingpins" with stiff penalties if the drug dealer has five or more employees and certain other conditions are met. In its opinion in the instant case, the district court relied upon United States v. Amen, 831 F.2d 373 (2d Cir.1987), cert. denied, 485 U.S. 1021, 108 S.Ct. 1573, 99 L.Ed.2d 889 (1988). The Second Circuit held that Sec. 2 aiding and abetting liability does not apply at all to the continuing criminal enterprise (CCE) statute, 21 U.S.C. Sec. 848, because Congress only intended the CCE statute to apply to the organizer, supervisor, or manager of the large drug enterprise and to visit upon the perpetrator a harsh set of mandatory minimum penalties. Id. at 381. The court reasoned that to allow Sec. 2 liability to attach would mean that a small-time supplier of drugs to the drug "kingpin" would be treated as a principal and subjected to penalties designed for a much more serious offender. The court recognized the inherent unfairness of subjecting a potentially peripheral accomplice to severe penalties when an employee integral to the business would be exempt and recognized the practical difficulty of distinguishing an accomplice from an employee. Id. at 382.

The Seventh Circuit in a hotly contested en banc decision disagreed with the Second Circuit while recognizing that the five or more employees of the drug "kingpin" could not be convicted as aiders and abettors because the statute indicates a clear intent to exclude them from liability. United States v. Pino-Perez, 870 F.2d 1230 (7th Cir.), cert. denied, 493 U.S. 901, 110 S.Ct. 260, 107 L.Ed.2d 209 (1989). The Seventh Circuit found that Sec. 2 "automatically" applies to federal criminal offenses and disagreed that Sec. 2 is generally inapplicable to the statute as the Second Circuit had held. Id. at 1233. The majority of the en banc judges held that nothing in the legislative history of Sec. 848 prevented accomplice liability and reasoned that identifying accomplices would not be as difficult as the Second Circuit supposed, although the court was unclear about the nature of the mens rea element of accomplice liability under Sec. 848. Id. at 1233-35.

Our consideration of this topic is assisted by Sharon C. Lynch's article in the University of Chicago Law Review, "Drug Kingpins and Their Helpers: Accomplice Liability Under 21 USC Section 848." 58 U.Chi.L.Rev. 391 (1991). The particular problem she examined in the article was the application of Sec. 2 to Sec. 848--the subject of the split between the Second and Seventh Circuits. Ms. Lynch concluded that courts need to adopt a more careful approach which neither results in a wholesale rejection of accomplice liability nor fails to define the intent element necessary to aid in the violation of each complex statutory crime. Id. at 411. Courts must tailor accomplice liability to the specific crime. As Ms. Lynch correctly observed, "Congres...