U.S. v. Rodriguez, No. 77-5339

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore COLEMAN; JOHN R. BROWN; ALVIN B. RUBIN; White
Citation612 F.2d 906
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Edward RODRIGUEZ, a/k/a Rick, Thomas J. Albernaz, Peter Smigowski, and William John Martins, Defendants-Appellants.
Docket NumberNo. 77-5339
Decision Date27 February 1980

Raymond E. LaPorte, Tampa, Fla., for Rodriguez.

Martin G. Weinberg, Boston, Mass., for Albernaz.

James W. Lawson, Joseph S. Oteri, Boston, Mass., for Smigowski.

Joel R. Magazine, Coconut Grove, Fla., for Martins.

Michael P. Sullivan, Asst. U. S. Atty., Miami, Fla., Mervyn Hamburg, Atty., U. S. Dept. of Justice, Crim. Div., Washington, D. C., for the U. S.

Appeals from the United States District Court for the Southern District of Florida.

Before COLEMAN, Chief Judge, BROWN, GOLDBERG, * AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges. **

JOHN R. BROWN, Circuit Judge:

The seizure on the open seas of marijuana being transferred from the freighter Labrador to the Catchalot II caught a lot more than an enormous amount of an illegal substance. Not the least of the catch are the difficult legal issues of statutory construction and double jeopardy which we consider on this rehearing en banc. The panel in this case disagreed with prior decisions concerning these issues, but felt constrained to follow the existing precedent of this Court. We write today to endorse our existing precedent.

The issues we address concern only the consecutive sentences imposed on defendants Rodriguez and Albernaz 1 for conspiracy to import marijuana, in violation of 21 U.S.C.A. §§ 952 & 963, and conspiracy to distribute marijuana, in violation of 21 U.S.C.A. §§ 841 & 846. Those defendants made an agreement to import and distribute the marijuana, an agreement violating two separate and specific narcotics conspiracy statutes. We first decide that Congress intended for both statutes to apply separately and consecutively to such an agreement. That conclusion nets us a sharp-toothed "double jeopardy" shark; but we find that double jeopardy has little bite where but one trial occurred and congressional intent is clear. The defendants' consecutive sentences under two separate, specific, and narcotics-related conspiracy statutes are affirmed. 2

The facts are set out in the panel opinion, 585 F.2d 1234. 3 They show that defendants Rodriguez and Albernaz were involved in an agreement with the objectives of importing marijuana and then of distributing it domestically. For that agreement, the defendants were charged and convicted under two separate statutory provisions. They received consecutive sentences. 4

The statutes involved in this case are parts of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L.No.91-513, 84 Stat. 1236 ("Drug Control Act"). Title III of this Act (Subchapter I of Chapter 13 of 21 U.S.C.A.) (entitled "Importation and Exportation") relates to imports and exports of controlled substances. Among its provisions is 21 U.S.C.A. § 952, 5 which defines and prescribes the act of unlawful importation. Title III of the Act (Subchapter II of Chapter 13 of 21 U.S.C.A.) (entitled "Control and Enforcement") relates to internal prevention and control of drug abuse. Among its provisions is 21 U.S.C.A. § 841, 6 which makes it unlawful to distribute controlled substances domestically. Each title of the Act contains its own, identically worded provision prohibiting conspiracy to commit any of the offenses described in that title of the Act:

Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

21 U.S.C.A. §§ 846, 963. Thus, § 963 punishes conspiracy to import marijuana and § 846 punishes conspiracy to distribute marijuana domestically.

The defendants, Rodriguez and Albernaz, made an agreement with the dual objective of importing and then distributing marijuana domestically. Their conspiracy therefore violated both of the conspiracy provisions of the Drug Control Act. They now contend that the criminal conspiracy in which they engaged cannot subject them to the dual, consecutive sentences which they received.

I. Congruous Congress

The first question is one of congressional intent, for "it is necessary, following (the) practice of avoiding constitutional decisions where possible, to determine whether Congress intended to subject the defendant to multiple penalties for the single criminal transaction in which he engaged." Simpson v. United States, 435 U.S. 6, 12, 98 S.Ct. 909, 913, 55 L.Ed.2d 70, 76 (1977).

In Simpson, the Supreme Court dealt with two statutes, enacted at different times, proscribing the act of robbing a bank by using a firearm. The two armed bank robbers there were convicted in one trial of violating both statutes and assessed consecutive sentences. One statute, 18 U.S.C.A. § 2113(d), was enacted as part of the Bank Robbery Act of 1934, Pub.L.No.235, 48 Stat. 783. That Act set up a "carefully crafted hierarchy of penalties," 7 adding five years to the maximum penalty for bank robbery if a weapon was used, and increasing the penalty still further if a kidnapping or death occurred during a robbery. 8 Since a weapon was used, the robbers received the enhanced penalty set out in the Bank Robbery Act, as codified at 18 U.S.C.A. § 2113(d). The second statute, 18 U.S.C.A. § 924(c), was added by floor amendment to the Gun Control Act of 1968, Pub.L.No.90-618, 82 Stat. 1213. That statute provided for enhanced punishment whenever any felony was committed by use of a firearm. 9 Convicted under this statute as well, the robbers received a second sentence to be served consecutively.

In order to determine congressional intent, the Supreme Court decided to apply "several tools of statutory construction . . . ." 435 U.S. at 12, 98 S.Ct. at 913, 55 L.Ed.2d at 76. The Court used four tools of construction. The legislative history was "sparse," yet it clearly indicated that the felony firearm statute was not intended to apply to the bank robbery statutes. 10 "(T)he principle that gives precedence to the terms of the more specific statute where a general statute and a specific statute speak to the same concern . . . ," Id. at 15, 98 S.Ct. at 914, 55 L.Ed.2d at 78, was also invoked. With its hierarchy of penalties and specific focus, the bank robbery statute was found more specific. The specificity principle was viewed as a corollary of a third tool of construction, the rule of lenity. The Court quoted its decision in Ladner v. United States 11 : " 'This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.' " Id. Finally, the Court looked at the conduct of the Government as indicative of the common perception of the statutes, and found that for several years the Department of Justice advised all United States Attorneys not to prosecute under both § 2113(d) and § 924. Id. at 16, 98 S.Ct. at 914, 55 L.Ed.2d at 78.

Simpson's teaching, therefore, is that the difficult task of divining Congressional intent is to be aided by the use of Several tools of statutory construction. 12 Simpson does not limit the tools to be used to the four there used. 13 Simpson speaks to statutes proscribing substantive acts, not to conspiracy statutes governing acts of thought and agreement. Simpson deals with the interaction between a specific and a general statute, but not with the interaction between two specific statutes. The control of the use of firearms has differed historically and practically from that of narcotics, so again Simpson is not dispositive. Nor does it address the enactment of two statutes as a part of one comprehensive Act, an Act designed to pull together widely scattered and disorganized enactments from years past. 14

Before beginning a formal analysis of the construction to be accorded the Drug Control Act, we pause to examine existing jurisprudence bearing upon the conspiracy provisions of that Act, 21 U.S.C.A. §§ 846 &amp 963. We perceive two lines of precedent, neither of which obviates the need to examine congressional intent.

The first line begins with Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942). 15 There, seven counts of conspiracy were brought under the general federal conspiracy statute, § 37 of the Criminal Code, 18 U.S.C. § 88 (now codified at 18 U.S.C.A. § 371). Each charged a conspiracy to violate a separate provision of the internal revenue law. Only one conspiratorial agreement, involving a scheme to manufacture, transport, and distribute moonshine, was shown by the evidence. The Court held that one agreement to commit seven different statutory offenses could not be punished by more than a single penalty under the general conspiracy statute:

Since the single continuing agreement, which is the conspiracy here, thus embraces its criminal object, it Differs from successive acts which violate a single penal statute and from A single act which violates two statutes.

Id. at 54, 63 S.Ct. at 102, 87 L.Ed. at 28 (emphasis supplied) (citations omitted). Thus Braverman was clearly limited to the statutory construction of the general conspiracy statute. 16

In United States v. Mori, 444 F.2d 240 (5th Cir.), Cert. denied, 404 U.S. 913, 92 S.Ct. 238, 30 L.Ed.2d 187 (1971), this Court extended Braverman to a situation involving convictions under the general conspiracy statute and under a specific conspiracy statute, 21 U.S.C.A. § 174. Section 174, now repealed, proscribed conspiracy to import narcotics. The conviction under the general conspiracy statute was somewhat circular, in that it was based on the same substantive crime which was the object of the § 174 conspiracy....

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