On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 84-00303-01) (D.C. Crim. No. 84-303-9) (D.C. Crim. No. 84-00303-07) (D.C. Crim. No. 84-00303-02) (D.C. Crim. No. 84-00303-03) (D.C. Crim. No. 84-00303-08) (D.C. Crim. No. 84-00303-10)
Before: HIGGINBOTHAM and STAPLETON, Circuit Judges, and TEITELBAUM, District Judge.*fn*
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
On this appeal, we must decide the following questions:
1) Whether use of a prior conspiracy conviction as a predicate act for a subsequent Racketeer Influenced and Corrupt Organization ("RICO"), 18 U.S.C. § 1962(c), prosecution and a subsequent continuing criminal enterprise ("CCE") prosecution violates the double jeopardy clause of the fifth amendment to the United States Constitution.
2) Whether the double jeopardy clause bars cumulative punishments for a conspiracy predicate act and for the CCE offense; and
3) Whether the district court erred in its instruction to the jury when defining "pattern of racketeering" for RICO purposes. 18 U.S.C. § 1961(5).
We hold that, on the facts of this case, prosecution for RICO and CCE, after an earlier prosecution for a conspiracy predicate act, did not violate the double jeopardy clause. Part II-A infra. We hold that the double jeopardy clause was violated by consecutive sentencing on the CCE offense, 21 U.S.C. § 848, and its conspiracy predicate offense, 21 U.S.C. § 846, as to appellant Michael Grayson. Thus, we remand Grayson's case to the district court for resentencing. Part II-B infra. We further hold that, on the facts of this case, the district court's refusal to instruct the jury that a connection must be shown among predicate offenses to prove the "pattern of racketeering" activity was, if error, harmless. Part III infra. The other challenges raised*fn1 by appellants, we find to be without merit and require no discussion. Thus, we affirm appellants' convictions and sentences in all other respects.
On July 18, 1984, a federal grand jury returned an indictment against ten members and associates of the Pagan Motorcycle Club ("PMC"). Charges were brought under provisions of the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. § 1962(c) and (d), alleging substantive violation of and conspiracy to violate the statute. In addition, several of the defendants were charged with various violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 841(a)(1) and (d); 846; 848.*fn2
Eight of the ten defendants indicted, including all seven appellants here, were tried before a jury between January 7, 1985 and February 12, 1985.*fn3 On February 15, 1985, the jury returned its verdicts, finding all defendants guilty on all counts except that the jury found Grayson not guilty on Count five (possession with intent to distribute methamphetamine); McKnight not guilty on Count nine (distribution of phencyclidine); Giordano not guilty on Count thirty (attempt to manufacture phencyclidine); and the eighth defendant, Richard Richter,*fn4 not guilty on Count twenty-two (possession with intent to distribute methamphetamine). Sentencing took place on April 2, 1985 and May 17, 1985, and individualized sentences to four to fifteen years of imprisonment were imposed.
At trial, the government presented approximately 43 witnesses and more than 100 exhibits, including numerous tape recorded conversations, photographs and documents. The principal witnesses on behalf of the government were nine former members and associates of the Pagan Motorcycle Club ("PMC"). Viewed in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 62, 86 L. Ed. 680, 62 S. Ct. 457 (1942), the evidence might be summarized as follows. PMC, an enterprise with chapters throughout the East Coast of the United States, conducted its affairs through the manufacture and distribution of controlled substances, principally methamphetamine and phencyclidine. Defendants were, at one time or another, regular members of PMC. Defendants participated, directly or indirectly, in the affairs of PMC through the manufacture, receipt, concealment, purchase and sale of methamphetamine and phencyclidine, as well as various chemicals and ingredients used to manufacture methamphetamine and phencyclidine.
This case presents questions regarding the double jeopardy implications when prior convictions are used as predicate offenses to support a RICO*fn5 charge and a CCE*fn6 charge. Because resolution of this issue involves the interpretation and application of legal precepts, our standard of review is plenary. See United States v. Adams, 759 F.2d 1099, 1106 (3d Cir. 1985); Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir. 1981).
The Double Jeopardy Clause of the Fifth Amendment declares: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life and limb . . ." U.S. Const. Amend. V. 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, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (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, 76 L. Ed. 306, 52 S. Ct. 180 (1932). The applicable rule under Blockburger "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." Blockburger, 284 U.S. at 304. The rule stated in Blockburger, was applied as a rule of statutory construction to help determine legislative intent. Garrett v. United States, 471 U.S. 773, 105 S. Ct. 2407, 2412, 85 L. Ed. 2d 764 (1985). The Supreme Court, thus, has recently indicated that the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history. Id. In essence, the ultimate question of whether two offenses are the same, under Blockburger, is one of legislative intent. Id.
We turn first to Grayson's contention that he was subjected to successive prosecutions. At trial, the government introduced proof of prior convictions of defendant Grayson. Grayson App. at 288a and 294a. On October 14, 1977, Grayson was convicted in the United States District Court for the Eastern District of Pennsylvania of conspiracy to manufacture methamphetamine. Grayson App. at 288a. On November 19, 1983, Grayson was convicted in the United States District Court for the District of Maryland of conspiracy to manufacture phencyclidine. Grayson App. at 294a. Proof of both convictions was offered as evidence on the requisite predicate acts under both Count two, the RICO count, and Count three, the CCE count, as well as the remaining elements of the CCE. Grayson argues that the admission of evidence of these prior convictions as to both Counts two and three violated his right to be protected from double jeopardy.
1. RICO Substantive and Predicate Acts
The language and legislative history of RICO indicates little doubt that Congress, in enacting RICO, sought to allow the separate prosecution and punishment of predicate offenses and a subsequent RICO offense. RICO's statutory language indicates that Congress sought to supplement, rather than supplant, existing crimes and penalties. Section 1961(5) provides that a:
"pattern of racketeering activity" requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.
18 U.S.C. § 1961(5) (emphasis added). This language suggests that Congress envisioned the situation where a defendant is convicted and sentenced for a racketeering act and subsequently charged with a RICO violation based on the prior conviction. United States v. Persico, 620 F. Supp. 836, 841 (S.D.N.Y. 1985). See United States v. Hawkins, 658 F.2d 279, 287-88 (5th Cir. 1981); United States v. Aleman, 609 F.2d 298, 306 (7th Cir. 1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1345, 63 L. Ed. 2d 780 (1980).
This interpretation of the language of RICO is fully supported by the statute's legislative history:
It is the purpose of this Act to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.
Organized Crime Control Act of 1970, Statement of Findings and Purpose, 84 stat. 922, reprinted in 1970 U.S. Code, Cong. & Ad. News at 1073 (emphasis added). See also United States v. Phillips, 664 F.2d 971, 1009 n. 55 (5th Cir. 1981), cert. denied, 459 U.S. 906, 103 S. Ct. 208, 74 L. Ed. 2d 166 (1982) ("The legislative history of RICO demonstrates that Congress intended to permit the imposition of cumulative sentences for both RICO offenses and the underlying predicate offenses. [citations omitted]. Thus, a defendant may be convicted for the predicate acts which form the basis for the RICO charge and later charged under RICO. [citations omitted]. A conviction under RICO does not, therefore, grant immunity for the offenses charged as the predicate acts of racketeering activity. [citations omitted
Several other courts of appeals have uniformly adopted this interpretation that Congress intended separate convictions or consecutive sentences for a RICO offense and the underlying predicate offense. As the Ninth Circuit observed in United States v. Rone, 598 F.2d 564 (9th Cir. 1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1345, 63 L. Ed. 2d 780 (1980):
There is nothing in the RICO statutory scheme which would suggest that Congress intended to preclude separate convictions or consecutive sentences for a RICO offense and the underlying or predicate crimes which make up the racketeering pattern. The racketeering statutes were designed primarily as an additional tool for the prevention of racketeering activity, which consists in part of the commission of a number of other crimes. The Government is not required to make an election between seeking a conviction under ...