U.S. v. Schuster

• Decision Date: 30 July 1985
• Docket Number: No. 84-3350,84-3350
• Citation: 769 F.2d 337
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roland SCHUSTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 337

769 F.2d 337

UNITED STATES of America, Plaintiff-Appellee, v. Roland SCHUSTER, Defendant-Appellant.

No. 84-3350.

United States Court of Appeals, Sixth Circuit.

Argued March 5, 1985.

Decided July 30, 1985.

Philip Pitzer, argued, Cincinnati, Ohio, for defendant-appellant.

Ann Marie Tracey, argued, Asst. U.S. Atty., Cincinnati, Ohio, for plaintiff-appellee.

Before CONTIE and WELLFORD, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

Defendant Roland Schuster appeals his conviction for engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. Defendant argues that the conviction, imposed by the jury after he had pleaded guilty to charges of conspiracy to import and distribute marijuana in violation of 21 U.S.C. Secs. 963 and 846, violated his fifth amendment right against double jeopardy. Defendant also challenges the district court's instructions permitting the jury to consider defendant's guilty pleas to the two conspiracy counts in determining whether he was guilty of engaging in a continuing criminal enterprise. For the reasons set forth in this opinion, we affirm the conviction.

I

Schuster was indicted on August 10, 1983 in connection with importing marijuana into this country. The indictment charged eight counts, the first three of which are central to this appeal. Count 1 charged conspiracy to possess with intent to distribute marijuana, 21 U.S.C. Sec. 846; Count 2 charged conspiracy to import marijuana 21 U.S.C. Sec. 963; Count 3 charged continuing criminal enterprise, 21 U.S.C. Sec. 848; Count 4 charged aiding and abetting the distribution of marijuana, 21 U.S.C. Sec. 841 and 18 U.S.C. Sec. 2; Count 5 charged a conspiracy to defraud the United States, 18 U.S.C. Sec. 371; Counts 6, 7 and 8 charged filing of false statements on income tax returns, 26 U.S.C. Sec. 7206(1).

A jury was empaneled and the case proceeded to trial. At the conclusion of the Government's case in chief, defendant moved to change his plea to guilty on Counts 1 and 2. The Government did not oppose the change of pleas. The district court accepted the pleas and continued the matter for a presentence report. Defendant moved to dismiss Count 3 charging continuing criminal enterprise under 21 U.S.C. Sec. 848, arguing that double jeopardy precluded further prosecution after findings of guilt on lesser included conspiracy offenses. After taking the matter under advisement, the district court denied the motion. The court held that "this is not a case of successive prosecutions but one prosecution; and if the defendant is convicted of the alleged lesser included crimes with the alleged greater offense, there will be a merger of the lesser into the greater."

The court instructed the jury that it could consider defendant's guilty pleas to Count 1 and Count 2 as evidence of the first essential element of the continuing criminal enterprise offense--a violation of a federal narcotics law punishable as a felony. The court also instructed the jury that "it is your job to decide whether the Government has proved this element beyond a reasonable doubt."

The jury returned guilty verdicts on Counts 3-8. The court sentenced defendant to a term of imprisonment totalling 20 years: 15 years on Count 1, a 5 year consecutive sentence on Count 2, a 20 year concurrent sentence on Count 3, and smaller concurrent sentences on the remaining counts. The court imposed a fine totalling $140,000: $100,000 on Count 3, $15,000 on Count 4, $10,000 on Count 5, and $5,000 on each of Counts 6, 7 and 8. On advice of the Government, the court imposed no fines on Counts 1 and 2. Defendant's property was ordered forfeited to the Government pursuant to 21 U.S.C. Sec. 848(b)(2). Defendant is not eligible for probation or parole on his prison sentence pursuant to 21 U.S.C. Sec. 848(c). Defendant appeals from the district court's order denying his motion to dismiss Count 3, from his conviction on Count 3, and from the jury instructions given on that Count.

II

Defendant was convicted of playing a major role in a conspiracy to import marijuana between January 1976 and December 1979. His organization, referred to as "The Company," brought marijuana into this country from Colombia and distributed it in Ohio and Indiana. During the early stages of the conspiracy, The Company used boats to bring marijuana to the coast of the southeastern United States. A sailboat, the Abraxes, was purchased by defendant and used in 1976 and 1977. In July of 1977, several members of The Company were arrested in Charleston, South Carolina and the Abraxes was seized.

By this time, The Company had begun to acquire airplanes. Defendant recruited and hired new personnel and purchased several airplanes. Defendant approved the hiring of pilots and advised them of procedures and arrangements for flights. Co-conspirators testified that defendant made cash payments and arrangements for each trip and that defendant or David Carr was the head of The Company. There also was testimony that defendant was contacted in the case of an emergency during operations, such as when cocaine was discovered in bales of marijuana being unloaded.

Defendant had declared bankruptcy in 1972. As a result of his participation in the smuggling business, his investments in two businesses totalled almost $2 million. Although defendant worked as a hearing aid salesman in Cincinnati in the late 1970s, the Government maintains that he had no legitimate income after 1977. He used loans and assets and foreign corporations to launder his proceeds and to conceal them from the Internal Revenue Service. He arranged with a friend to receive a salary so that he would appear to have legitimate income to report on his tax returns.

III

Appellant contends that his guilty plea to charges of 21 U.S.C. Sec. 963 (conspiracy to import marijuana) and 21 U.S.C. Sec. 846 (conspiracy to possess with intent to distribute over 1,000 pounds of marijuana) precluded the Government from continuing its prosecution for engaging in a continuing criminal enterprise under 21 U.S.C. Sec. 848. Appellant urges that his section 848 conviction is barred by the protections of the double jeopardy clause of the fifth amendment against multiple punishments for the same offense and prosecution for the same offense after a previous conviction.

The double jeopardy clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The test for determining whether two offenses are "the same" or are distinguishable and allow for cumulative punishment was established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). "The applicable rule," the Court held, "is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." ¹

The double jeopardy protection against retrial following acquittal or conviction protects against continued anxiety and expense and the increased risk of erroneous conviction or impermissibly enhanced sentence. Ohio v. Johnson, --- U.S. ----, 104 S.Ct. 2536, 2540-41, 81 L.Ed.2d 425 (1984). The protection against cumulative punishments for "the same" offense is "designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature." Id., 104 S.Ct. at 2541.

We turn first to appellant's contention that he was subjected to successive prosecutions. In order to establish guilt under the continuing criminal enterprise statute, 21 U.S.C. Sec. 848, the Government must prove: 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 whom he derives substantial income or resources. United States v. Lurz, 666 F.2d 69, 75 (4th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874, 459 U.S. 843, 103 S.Ct. 95, 74 L.Ed.2d 87 (1982). It requires an agreement in a design or plan as well as concerted activity. Jeffers v. United States, 432 U.S. 137, 148-49, 97 S.Ct. 2207, 2214-15, 53 L.Ed.2d 168 (1977). The conspiracy to import and distribute marijuana charges in Counts 1 and 2 are based on the conspiracy statutes at 21 U.S.C. Secs. 846 (controlling distribution) and 963 (controlling importation). These statutes punish attempts or conspiracies to violate the drug laws.

Appellant urges that continued prosecution for the section 848 violation after the district court accepted his guilty pleas to the conspiracy charges in Counts 1 and 2 violated the rule announced in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The Brown Court held that a defendant cannot be prosecuted for a greater offense after conviction or acquittal of the lesser included offense. There a defendant was convicted on his guilty plea to the offense of joyriding and subsequently was convicted of the greater offense of auto theft based on the same events. Under Ohio law, joyriding was the lesser included offense of auto theft. The Court, noting that joyriding is the same offense as auto theft under the Blockburger test because the lesser offense required no additional proof, held that the subsequent prosecution was precluded by double jeopardy principles. Id. at 168-69, 97 S.Ct. at 2226-27. The Court emphasized that the prohibition of successive prosecutions serves a policy of finality, protecting a defendant from attempts to relitigate facts or secure additional penalties. Id. at 165-66, 97 S.Ct. at 2225.

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