U.S. v. Pino-Perez

• Decision Date: 10 March 1989
• Docket Number: D,PINO-PERE,No. 88-1507,88-1507
• Citation: 870 F.2d 1230
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tito Juanefendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1230

870 F.2d 1230

UNITED STATES of America, Plaintiff-Appellee, v. Tito Juan PINO-PEREZ, Defendant-Appellant.

No. 88-1507.

United States Court of Appeals,

Seventh Circuit.

Argued Nov. 1, 1988.

Reargued Feb. 9, 1989.

Decided March 10, 1989.

Richard J. Auerbach, Madison, Wis., for defendant-appellant.

Grant C. Johnson, Asst. U.S. Atty., Patrick J. Fiedler, U.S. Atty., Madison, Wis., for plaintiff-appellee.

Before BAUER, Chief Judge, CUMMINGS, WOOD, Jr., CUDAHY, POSNER, FLAUM, COFFEY, EASTERBROOK, RIPPLE, MANION, and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

POSNER, Circuit Judge.

We decided to hear this case en banc, pursuant to Circuit Rule 40(f), in order to decide whether violation of the federal "kingpin" statute, 21 U.S.C. Sec. 848 (Continuing Criminal Enterprises, Title II, Sec. 408, of the Organized Crime Control Act of 1970), is "an offense against the United States" within the meaning of the federal aider and abettor statute, 18 U.S.C. Sec. 2(a). That statute provides: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." A panel of this court had answered the question "yes" in United States v. Ambrose, 740 F.2d 505, 507-08 (7th Cir.1984), followed by a district judge in United States v. Vasta, 649 F.Supp. 974, 982 (S.D.N.Y.1986). Subsequently the Second Circuit, emphasizing legislative history not discussed in Ambrose, answered "no" in United States v. Amen, 831 F.2d 373, 381-82 (2d Cir.1987), followed in United States v. Benevento, 836 F.2d 60, 71-72 (2d Cir.1987). Oddly--when one considers that the kingpin statute has been on the books for almost twenty years--no other court has decided whether there can be liability for aiding and abetting a drug kingpin. The question is alluded to in United States v. O'Connell, 841 F.2d 1408, 1425 n. 9 (8th Cir.1988), but not decided.

A court of appeals has a responsibility to reexamine its decisions in light of new arguments, new evidence, new experience, especially when by doing so it may be able to eliminate a conflict between circuits and thereby lighten the Supreme Court's burden of resolving such conflicts. In that spirit we have undertaken to reexamine Ambrose, but having done so we adhere to our view that there is aider and abettor liability for assisting a kingpin.

The kingpin statute imposes heavy penalties for the commission of a felony narcotics violation as part of a continuing series of violations from which the perpetrator obtains substantial income or resources and which he conducts in concert with five or more persons with respect to whom he "occupies a position of organizer, a supervisory position, or any other position of management." 21 U.S.C. Sec. 848(b)(2). (This section was renumbered to (d)(2)(A) pursuant to amendments made to the kingpin statute in 1986, but Pino-Perez was convicted under the original statute.) The minimum penalty is ten years in prison and the maximum is life in prison plus a $100,000 fine (raised to $2 million in 1986). 21 U.S.C. Sec. 848(a)(1). There is no parole, see Sec. 848(c), although time off for good behavior and work in an industry or camp can cut the kingpin's sentence by more than a third. See 18 U.S.C. Secs. 4161, 4162. The new federal sentencing statute enacted in 1986 abolishes parole for all federal crimes committed after its effective date (and time off for good behavior has also been trimmed), but when the kingpin statute was originally enacted its provision disallowing parole was unusual. Suspension and probation are also disallowed. See 21 U.S.C. Sec. 848(c). Congress imposed a stiff minimum mandatory prison sentence--and meant it.

As the government has rightly conceded in these cases, the persons supervised by the kingpin cannot be punished as aiders and abettors. See United States v. Ambrose, supra, 740 F.2d at 507-08; United States v. Amen, supra, 831 F.2d at 381-82. When a "crime is so defined that participation by another is necessary to its commission," that other participant is not an aider and abettor. United States v. Southard, 700 F.2d 1, 20 (1st Cir.1983). "[B]y specifying the kind of individual who is to be found guilty when participating in a transaction necessarily involving one or more other persons, [the legislature] must not have intended to include the participation by others in the offense as a crime. This exception applies even though the statute was not intended to protect the other participants." Id. The exception covers persons whom a kingpin supervises. If they were chargeable as his aiders and abettors, the purpose of the kingpin statute--to punish the kingpin more severely than other drug offenders--would be thwarted. Since the lowliest mixer, if punishable as an aider and abettor, would be subject to the same ten-year minimum as the kingpin himself, there would be no incremental deterrence of the kingpin in cases where the sentencing judge thought the statutory minimum adequate for the kingpin. Cf. United States v. Farrar, 281 U.S. 624, 50 S.Ct. 425, 74 L.Ed. 1078 (1930).

Southard describes two other exceptions to aider and abettor liability (see 700 F.2d at 19-20). The first concerns the victim of the crime. Even if, as in such crimes as extortion, blackmail, and bribery, his conduct significantly assisted in the commission of the crime, he cannot be charged as an aider and abettor. The second exception concerns members of a group that the criminal statute seeks to protect: a woman who is transported willingly across state lines for the purpose of prostitution cannot be charged as an aider and abettor of the transporter's Mann Act violation. Gebardi v. United States, 287 U.S. 112, 123, 53 S.Ct. 35, 38, 77 L.Ed. 206 (1932).

Persons who assist a kingpin but are not supervised, managed, or organized by him do not fit any of these three exceptions, and we are reluctant to create a fourth. Cf. United States v. Santore, 290 F.2d 51, 76-78 (2d Cir.1960) (en banc). In Ambrose, the kingpin's aiders and abettors were police officers who protected the kingpin's operation. The role of the aider and abettor in Amen, Paradiso, is unclear from the Second Circuit's opinion; since the Second Circuit rejected aider and abettor liability, it had no reason to particularize Paradiso's activities. The government's brief in Amen describes Paradiso as "Abbamonte's [the kingpin's] trusted friend who assisted him in directing his distribution network from prison by arranging to punish one of his workers and by arranging for the acquisition of heroin. Without in any sense being employed or supervised by Abbamonte, Paradiso provided valuable assistance to the head of the network and his underlings." Brief for the United States of America in Nos. 87-1028 et al. (United States v. Amen), at p. 42. And United States v. Vasta, supra, a decision on pretrial motions in the same prosecution, reports the government's contention that the assistance of Paradiso and another alleged aider and abettor, Squitieri, "was of critical importance in keeping Abbamonte's operation alive." 649 F.Supp. at 982. Ernest A. Benevento, the person charged with aiding and abetting a kingpin in United States v. Benevento, supra, "engaged in managerial functions throughout J.E.M.'s drug operations [J.E.M. was an international criminal enterprise engaged in the manufacture and distribution of heroin] and provided substantial assistance to Ernesto J. Benevento [the kingpin. Ernest] ... provided J.E.M. with the use of his Arizona home for the drug manufacturing laboratory, maintained detailed financial records for the enterprise on his computer at home, contributed substantial amounts of capital to fund the second drug venture and attempted to smuggle currency out of the United States for J.E.M." 836 F.2d at 71. The aider and abettor in the present case, Pino-Perez, supplied cocaine to a drug ring in southern Wisconsin headed by Harold Nichols. Pino-Perez was the supplier to Nichols's enterprise, and the quantities supplied were impressive. Pino-Perez once received $30,000 in cash for two kilograms of cocaine that he sold to the Nichols enterprise. He sold the enterprise as much as five kilograms at a time, and planned a final sale of 20 kilograms to it. His sales were frequent, and they continued for a long time. He claimed to know all or at least most of the big cocaine dealers in the country. This may have been braggadoccio, but there is no question that he was a big dealer--much bigger than Nichols, the kingpin.

The judge sentenced Pino-Perez to 40 years in prison under the kingpin statute for aiding and abetting Nichols's enterprise. Besides asking us to overrule Ambrose, Pino-Perez contends that the trial demonstrated either a fatal variance between the indictment and the proof or a "constructive" amendment of the indictment. This contention has no possible merit and requires no discussion. See United States v. Leibowitz, 857 F.2d 373, 378-79 (7th Cir.1988). His remaining contentions are equally meritless, so we may turn to the issue of aider and abettor liability.

What is now section 2(a) of the federal criminal code dates back to 1909. See Act of March 4, 1909, ch. 321, Sec. 332, 35 Stat. 1152; Standefer v. United States, 447 U.S. 10, 15-20, 100 S.Ct. 1999, 2003-06, 64 L.Ed.2d 689 (1980). Ever since then, every time Congress has passed a new criminal statute the aider and abettor provision has automatically kicked in and made the aiders and abettors of violations of the new statute punishable as principals. "With the enactment of that section [the 1909 predecessor to section 2(a) ], all participants in conduct violating a federal statute are 'principals.' " Id. at 20, 100 S.Ct. at 2006 (dictum). "The aiding and abetting provision [section 2(a) ] ... is applicable to the entire criminal code." United States v. Jones, 678 F.2d 102, 105 (9th Cir.1982). To the same effect, see, e.g., ...