U.S. v. Staggs, s. 88-1275

• Decision Date: 07 August 1989
• Docket Number: 88-1469,Nos. 88-1275,88-1471 and 88-1473,s. 88-1275
• Citation: 881 F.2d 1527
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Eugene STAGGS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles David TEAFATILLER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Peggy Savage TEAFATILLER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Frank E. GABRIEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1527

881 F.2d 1527

UNITED STATES of America, Plaintiff-Appellee, v. Donald Eugene STAGGS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Charles David TEAFATILLER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Peggy Savage TEAFATILLER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Frank E. GABRIEL, Defendant-Appellant.

Nos. 88-1275, 88-1469, 88-1471 and 88-1473.

United States Court of Appeals Tenth Circuit.

Aug. 7, 1989.

Mervyn Hamburg, Atty., Appellate Div., Dept. of Justice, Washington, D.C. (Roger Hilfiger, U.S. Atty., and Sheldon J. Sperling, Asst. U.S. Atty., Muskogee, Okl., with him on the brief), for plaintiff-appellee.

Emmett Colvin (Richard F. Aguire with him on the brief), Dallas, Tex., for defendants-appellants.

Before HOLLOWAY, Chief Judge, McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY and EBEL, Circuit Judges.

BALDOCK, Circuit Judge.

Appellants were convicted by a jury on a variety of federal drug and drug-related charges arising out of an alleged operation to produce amphetamine, a schedule II controlled substance. See 21 C.F.R. Sec. 1308.12(d) (1987). Specifically, appellants Donald Eugene Staggs (Staggs), Charles David "Rusty" Teafatiller (Teafatiller), Peggy Savage Teafatiller, and Frank E. Gabriel (Gabriel), were each convicted of conspiring to manufacture, possess with intent to distribute, and distribute amphetamine, in violation of 21 U.S.C. Secs. 846 and 841(a)(1). ¹ Teafatiller and Staggs also were convicted of engaging in a continuing criminal enterprise (CCE), contrary to 21 U.S.C. Sec. 848. ² The jury further convicted Appellants assert six grounds of error on appeal. First, Teafatiller and Staggs challenge the indictment, claiming that the continuing criminal enterprise charges in counts two and three failed to allege three felony violations comprising the "series of violations" required by the CCE statute. Second, Teafatiller and Staggs argue that their respective conspiracy convictions, being lesser included offenses of the CCE offense, should be vacated. Third, while not seeking reversal on this point, Teafatiller seeks correction of the judgment and commitment order filed after trial because the sentence reflected therein differs from that orally rendered by the trial judge. Fourth, all appellants claim the case should be remanded for a hearing to determine whether the government acted outrageously by seeking the cooperation of an attorney who, according to appellants, had formerly represented them. Fifth, Gabriel argues that the testimony of Sharon Gabriel was admitted in violation of the marital privilege. Lastly, Gabriel contends that the evidence is insufficient to support his conviction on the conspiracy count.

both Gabriel and Staggs on firearms charges; Gabriel of possessing an unregistered automatic weapon in violation of 26 U.S.C. Sec. 5861(d), and Staggs of possessing a firearm shipped or transported in interstate commerce after a felony conviction, contrary to 18 U.S.C. Sec. 922(g)(1). Finally, Teafatiller was convicted of attempted tax evasion as prohibited by 26 U.S.C. Sec. 7201, and Teafatiller and his wife Peggy together were convicted of conspiring to defraud the United States by obstructing the collection of the revenue, in contravention of 18 U.S.C. Sec. 371. Our jurisdiction of this direct appeal from the judgment of conviction arises under 28 U.S.C. Sec. 1291.

This case was assigned originally to a three-judge panel for determination of these issues. Prior to the issuance of the proposed panel opinion, a majority of the active judges of the Tenth Circuit voted sua sponte to hear the first of the above-listed issues, regarding the sufficiency of the CCE indictments of Teafatiller and Staggs, before the en banc court. By order dated March 29, 1989, the court defined the issue for en banc consideration as follows:

Whether a continuing criminal enterprise indictment which tracks the language of the statute and contains three violations underlying the series in another count of the indictment is sufficient to charge a continuing criminal enterprise offense under 21 U.S.C. Sec. 848, consistent with the requirements for an indictment under the fifth and sixth amendments of the Constitution.

Given this posture, we will address this appeal in two opinions, filed this day: the first, herein, before the en banc court, considering the sufficiency of the CCE indictments; and the second, before the original three-judge panel, considering the remaining issues. See 881 F.2d 1546 (10th Cir.1989).

Appellants Teafatiller and Staggs were charged in a superseding indictment, counts two and three respectively, with engaging in a continuing criminal enterprise, proscribed at 21 U.S.C. Sec. 848. The essential elements of the CCE offense include the following:

(1) a continuing series of violations of the Controlled Substances Act of 1970, 21 U.S.C. et seq., (2) the violations were undertaken in concert with five or more other persons with respect to whom the accused acted as organizer, supervisor or manager, and (3) from which the accused obtained substantial income or resources.

United States v. Hall, 843 F.2d 408, 410 (10th Cir.1988) (quoting United States v. Dickey, 736 F.2d 571, 596-97 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985)). Courts construing the first element, the only one at issue here, have generally agreed that the "continuing series of violations" specified by the CCE statute requires proof of three or more drug violations in order to support a CCE conviction. United States v. Apodaca, 843 F.2d 421, 427 (10th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988).

The appellants were charged, in the language of the CCE statute, with engaging in "a continuing series of violations," the indictment specifying additionally that Staggs and Teafatiller had "repeatedly violated Title 21, United States Code, Section 841(a)(1) and other provisions of Title 21, regarding amphetamine, a Schedule II, stimulant controlled substance. ³ No underlying violations were specified in the CCE counts, but at least three violations of Title 21 were alleged with regard to each appellant in count one of the indictment, the conspiracy count. ⁴ Both Teafatiller, rec. vol. I, doc. 2, and Staggs, rec. vol. I, doc. 12, filed motions to dismiss the indictment, which were denied. Rec. vol. I, doc. 18. On appeal, Teafatiller and Staggs do not contend that three violations were not charged and proved. Neither do appellants contend that any evidence of uncharged violations was introduced at trial in support of the CCE counts. Rather, they argue that the indictment was insufficient with regard to the CCE counts in that those counts failed either to list the underlying violations or to specifically incorporate by reference the violations charged in count one.

Generally, an indictment is sufficient if it contains the elements of the offense charged, putting the defendant on fair notice of the charge against which he must defend, and if it enables a defendant to assert an acquittal or conviction in order to prevent being placed in jeopardy twice for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); United States v. Young, 862 F.2d 815, 819 (10th Cir.1988). Because appellants could plead the entire record as a bar to future CCE or conspiracy charges based on the predicate acts charged in the indictment or otherwise considered by the jury, appellants are adequately protected from double jeopardy, see Apodaca, 843 F.2d at 430 n. 3, and the central issue here, as appellants conceded at oral argument, involves the notice function of this indictment. Teafatiller and Staggs contend that by omitting from the CCE counts the underlying violations, the indictment did not articulate the essential facts constituting the offense as required by Fed.R.Crim.P. 7(c)(1). The practical result, according to appellants, was that the indictment failed to provide them the notice necessary to prepare their defense. We disagree.

An indictment is generally sufficient to overcome constitutional concerns if it sets forth the words of the statute, as long as the statute itself adequately states the elements of the offense. Hamling, 418 U.S. at 117, 94 S.Ct. at 2907; United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir.1988). Each of the other circuits that has considered the sufficiency of a CCE indictment either has held generally that a CCE indictment is sufficient if it tracks the language of the statute, or specifically that an indictment need not allege the three violations that underlie the "continuing series" element. United States v. Alvarez-Moreno, 874 F.2d 1402, 1408, 1410-11 (11th Cir.1989) (CCE indictment sufficient when alleging offense in language of statute); United States v. Amend, 791 F.2d 1120, 1125 (4th Cir.) (indictment sufficient although not alleging five individuals with Following oral argument before the en banc court, the court first considered whether tracking the language of the statute with regard to the "continuing series of violations" element was sufficient to meet the constitutional requirements of an indictment. After discussion, the court was evenly divided on that issue; therefore, we reach no conclusion about the sufficiency of an indictment that does no more than track the language of the CCE statute. We do hold, however, that a CCE indictment is sufficient where, as here, the CCE counts charge appellants in the language of the statute, and the indictment additionally alleges at least three violations in another count or counts. See United States v. Moya-Gomez, 860 F.2d 706, 752 (7th Cir.1988) (defendant put on actual notice by violations listed in other counts; indictment held sufficient), cert. denied, --- U.S. ----, 109 S.Ct. 3221, 106 L.Ed.2d 571; United States v....