U.S. v. Maull

• Citation: 806 F.2d 1340
• Decision Date: 02 December 1986
• Docket Number: No. 85-2399,85-2399
• Parties: UNITED STATES of America, Appellee, v. Fleet Wallace MAULL, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1340

806 F.2d 1340

UNITED STATES of America, Appellee, v. Fleet Wallace MAULL, Appellant.

No. 85-2399.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 8, 1986.

Decided Dec. 2, 1986.

Lawrence Fleming, St. Louis, Mo., for appellant.

Joseph D. Mancano, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before ROSS, WOLLMAN and MAGILL, Circuit Judges.

WOLLMAN, Circuit Judge.

From approximately 1975 to 1983, appellant, Fleet Wallace Maull, took part in an extensive narcotics enterprise to import and distribute large quantities of cocaine. Maull and his partner, Michael Kendrick, purchased cocaine in Santa Cruz, Bolivia, and then smuggled it into the United States by concealing the cocaine inside backpacks equipped with secret compartments and by flying the cocaine in by small private aircraft. Once the cocaine reached the United States, Maull sold the cocaine personally and through distributors in St. Louis, Missouri Appellant was charged with conspiracy to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846; importation of cocaine in violation of 21 U.S.C. Secs. 952(a) and 960(a)(1); attempted importation of cocaine in violation of 21 U.S.C. Secs. 963 and 960(a)(1); traveling in interstate commerce in aid of an unlawful activity in violation of 18 U.S.C. Sec. 1952; and with engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. He was convicted on each of these counts and sentenced to a total of twenty-four years' imprisonment on the conspiracy, importation, attempted importation, and Travel Act counts. In addition, he was given a concurrent term of thirty years' imprisonment without the possibility of parole on the Continuing Criminal Enterprise charge.

Boulder, Colorado; Panama City, Florida; and Salt Lake City, Utah.

Maull raises several points on appeal: 1) the evidence was insufficient to support his conviction on the Continuing Criminal Enterprise (CCE) charge; 2) the district court improperly instructed the jury on the CCE charge; 3) the CCE statute is unconstitutionally vague as applied to him; 4) the ex parte restraining orders and his pre-trial detention improperly denied him the ability to finance and assist in the preparation of his defense; 5) the court erred in denying his motion for a bill of particulars; 6) the district court improperly permitted the Government to elicit testimony from certain witnesses regarding their plea agreements; ¹ and 7) the court erred in sentencing him to concurrent sentences on the conspiracy and CCE counts. We address each contention separately.

CONTINUING CRIMINAL ENTERPRISE

Maull first contends that the evidence was insufficient to support his conviction under the CCE statute. In evaluating the sufficiency of the evidence, we are reminded that we must view the evidence in the light most favorable to the verdict, sustaining the verdict if supported by substantial evidence. United States v. Casperson, 773 F.2d 216, 221 (8th Cir.1985). The Government is to be given the benefit of all reasonable inferences that can be drawn from the evidence, and factual disputes are to be decided in favor of the Government. United States v. Garcia, 785 F.2d 214, 225 (8th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986).

In order to be convicted for violation of the CCE statute, 21 U.S.C. Sec. 848, the following five elements must be satisfied:

1) a felony violation of the federal narcotics laws;

2) as part of a continuing series of violations;

3) in concert with five or more persons;

4) for whom the defendant is an organizer or supervisor;

5) from which he derives substantial income or resources.

United States v. Lewis, 759 F.2d 1316, 1331 (8th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985). The parties are not in dispute as to whether the first or fifth requirements have been met. They are in disagreement, however, as to whether Maull's narcotics violations were part of a continuing series of violations of federal narcotics laws and as to whether Maull was an organizer, supervisor, or manager with respect to five or more individuals.

A. Continuing Series of Violations.

The CCE statute requires the Government to prove that the defendant's narcotics activities were part of a continuing series of violations of federal narcotics laws. Maull alleges that there is no evidence in this case to indicate that the smuggling and distribution endeavors were part of a series of narcotics violations. Moreover, he contends his activities were not part of a continuing series of violations.

A continuing offense is a continuous illegal act or series of acts driven by a single impulse and operated by an unintermittent The evidence at trial established that from the mid-to-late 1970's through 1983, Maull engaged in a repeated and related series of cocaine smuggling and distribution activities. He persistently participated in smuggling trips to South America, frequently employing his method of concealing the cocaine in hidden compartments in backpacks. Once the cocaine reached this country, the eventual distribution was also organized and persistent. During the time period at issue, Maull regularly fronted, or advanced on credit, cocaine to Robert Busch for distribution in the St. Louis area. He also frequently sold large amounts of cocaine through Lee Ann Russo in Panama City, Florida, and Salt Lake City, Utah, and sold cocaine in Boulder, Colorado, as well. These activities amply satisfied the "continuing" and "series" elements of the statute.

                force.   United States v. Midstate Horticultural Co., 306 U.S. 161, 166, 59 S.Ct. 412, 414, 83 L.Ed. 563 (1939);  United States v. Bergdoll, 412 F.Supp. 1308, 1317 (D.Del.1976).  The term "series" requires "proof of three or more related violations."   United States v. Jones, 801 F.2d 304, 307 (8th Cir.1986);  United States v. Collier, 358 F.Supp. 1351, 1355 (E.D.Mich.1973)
                

B. Organizer, Supervisor, or Manager of Five or More Persons.

To be convicted of a CCE offense, a defendant must have acted in concert with five or more persons over whom he held a position of organizer, supervisor, or manager. This requirement of the CCE statute has been given a broad interpretation by the courts: the supervisory relationship need not exist at the same time with respect to all five individuals, the same type of supervision need not be exercised over each person, and the supervisor or manager need not be in personal contact with each person. United States v. Jones, 801 F.2d at 308; United States v. Becton, 751 F.2d 250, 254-55 (8th Cir.1984), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985).

Maull maintains that the CCE statute was designed to reach only "king pins" of highly structured drug organizations. The case law in this and other circuits belies this contention. See Becton, 751 F.2d at 255; United States v. Mannino, 635 F.2d 110, 117 (2d Cir.1980); United States v. Oberski, 734 F.2d 1030, 1032 (5th Cir.1984). These cases make it clear that a defendant need not have been the dominant organizer or manager of the narcotics enterprise to run afoul of the statute; he need only to have occupied some managerial position. Becton, 755 F.2d at 255.

Maull further asserts that the statute does not apply to him because the five individuals he is alleged to have supervised or managed did not act in concert with each other. We find this interpretation of the CCE statute to be unduly narrow and unsupported by the language of the statute. The statute itself provides that the illicit conduct must be "undertaken by [the defendant] in concert with five or more other persons...." Nowhere does the statute require that the individuals supervised or managed must work in concert with anyone but the defendant.

Similarly, Maull's interpretation is unsupported by the decisions in this circuit. In United States v. Jones, 801 F.2d 304 (8th Cir.1986), the defendants, Jones and Pfeister, fronted drugs to five or more individuals; there was no indication that all five individuals had worked in concert with each other in reselling the drugs. The focal point of the court's analysis was not whether the five had worked in conjunction with each other, but rather whether they had worked in concert with Jones and Pfeister. Likewise, in United States v. Becton, 751 F.2d at 254-55, the court unequivocally stated that the five or more persons need not have acted in concert. ²

The evidence supports the jury's finding that Maull had organized, supervised, or managed at least five individuals. One of the persons he organized and managed was Robert Busch. Busch participated in smuggling trips with Maull on two occasions in 1983. Maull recruited Busch for the trips, bought his plane ticket, gave him a backpack to use, set the terms of his payment, determined the route to be taken and when the trip would occur, invested money for the trip, and negotiated the purchase of the cocaine. In addition to the smuggling trips, Maull fronted or consigned roughly one-half of a million dollars' worth of cocaine to Busch that Busch sold in the St. Louis area.

Kathleen Sitter and Susan Sitter also were organized and managed by Maull. They participated in an October 1980 trip to Peru with Maull and Kendrick to smuggle cocaine into this country. Maull and Kendrick provided the Sitters with two backpacks filled with cocaine, which the Sitters carried back to Madison, Wisconsin, for Maull and Kendrick. This trip was coordinated by Maull and Kendrick, and both Kathleen and Susan Sitter were aware they were transporting cocaine for Kendrick and Maull.

Richard Rankin also worked as a courier for Maull. In 1981 he carried a backpack filled with Maull's cocaine into the United States and then delivered it to Maull in Madison, Wisconsin. Rankin also assisted Maull and other organizers of a sixty-seven kilogram transaction by smuggling "buy" money into...