STEVEN LEON ROLLE, PETITIONER V. UNITED STATES OF AMERICA No. 90-5692 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-3) is unreported, but the judgment is noted at 911 F.2d 726 (Table). JURISDICTION The judgment of the court of appeals was entered on July 19, 1990. The petition for a writ of certiorari was filed on September 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the indictment properly informed petitioner of the charge of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. 848. 2. Whether the district court properly admitted certain testimony into evidence. 3. Whether there was sufficient evidence to support petitioner's convictions on various narcotics offenses. 4. Whether petitioner's acquittal on one narcotics charge required the district court to vacate his convictions on two other related charges. 5. Whether the district court's instruction to the jury concerning the testimony of witnesses who had entered into plea agreements with the government was plain error. STATEMENT After a jury trial in the United States District Court for the Northern District of West Virginia, petitioner was convicted on one count of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. 848, one count of conspiring to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846, nine counts of traveling in interstate commerce to carry on an unlawful activity, in violation of 18 U.S.C. 1952(a)(3), nine counts of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1), 37 counts of distributing cocaine within 1,000 feet of a school, in violation of 21 U.S.C. 845a(a), and one count of conspiring to defraud the United States, in violation of 18 U.S.C. 371. He was sentenced to a total term of 35 years' imprisonment. The court of appeals affirmed. Pet. App. 1-3. /1/ 1. The evidence at trial showed that petitioner, during 1986 and 1987, directed a substantial cocaine distribution organization that operated out of a "crack house" in Charles Town, West Virginia. Gov't C.A. Br. 2-4; C.A. App. 240-241, 377-378. Petitioner himself traveled frequently to Florida and the District of Columbia to obtain cocaine; petitioner and his cohorts processed and packaged the cocaine for sale at the Charles Town headquarters. C.A. App. 241-247, 251-252, 276-277, 285, 302-303, 344-345, 379-380, 398-399. Petitioner distributed the cocaine to "runners," who then sold the drugs on the street and returned the cash proceeds to petitioner. C.A. App. 299-302, 438-439, 459-461, 468. Petitioner directed the runners' activities and paid them either in cash or cocaine. C.A. App. 271-275, 380-382. 2. In the court of appeals, petitioner contended that (1) the section 848 charge in the indictment did not sufficiently inform of (the elements of that offense), (2) his acquittal on one count * * * was inconsistent with his convictions on two other counts, (3) there was insufficient evidence to support his convictions on certain counts, (4) the district court erred in permitting the government to introduce (a) gun and drug paraphernalia, (b) evidence of his arrest by Virginia authorities, and (c) hearsay testimony, and (5) the district court improperly endorsed plea bargaining in the jury instructions. Pet. App. 2 n.*. The court of appeals, "(a)fter considering the arguments of counsel and carefully reviewing the record, the briefs, and the law," summarily rejected each of those contentions. Ibid. ARGUMENT 1. Petitioner contends (Pet. 6-10) that the indictment did not properly inform him of the charge of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. 848. In particular, petitioner claims that the indictment neither identified those persons with whom he allegedly acted in concert nor identified the acts forming the requisite "continuing series of violations." The pertinent count (Count 1), tracking the language of Section 848, /2/ charged that petitioner did unlawfully, willfully, knowingly and intentionally engage in a continuing criminal enterprise in that he did violate Title 21, United States Code, Sections 841(a)(1) and 846, that is, the distribution of controlled substances, the possession with intent to distribute controlled substances, the attempt to distribute and to possess with intent to distribute controlled substances, namely cocaine, also known as "coke," a Schedule II narcotic drug-controlled substance, as designated by Title 21, United States Code, Section 812(c), Schedule II(a)(4), as specifically set forth in Counts 2 through 140, which are incorporated herein by reference, and which were part of a continuing series of violations of such statutes undertaken by (petitioner) in concert with at least five other persons, with respect to whom (petitioner) occupied a position of organizer, a supervisory position, and a position of management and from which (petitioner) obtained substantial income and resources. C.A. App. 1-2. By its terms, that count expressly referred to and incorporated other substantive counts charged in the indictment. As a result, petitioner had ample notice of the "continuing series of violations" that formed the basis of the Section 848 offense. See, e.g., United States v. Staggs, 881 F.2d 1527, 1531 (10th Cir. 1989) (en banc) (continuing criminal enterprise count that charges defendant in the language of the statute is sufficient, where other counts of indictment allege at least three additional violations), cert. denied, 110 S. Ct. 719 (1990); United States v. Alvarez-Moreno, 874 F.2d 1402, 1410 (11th Cir. 1989) (indictment charging a continuing criminal enterprise "is sufficient for constitutional purposes if it articulates in statutory language the elements of the violation"), cert. denied, 110 S. Ct. 1484 (1990). /3/ Moreover, there is no requirement that the Section 848 charge identify by name those individuals alleged to have acted in concert with the defendant. See, e.g., United States v. Sperling, 506 F.2d 1323, 1344 (2d Cir. 1974) (indictment need not specify names of persons with whom defendant acted). In the circumstances presented, there is no reason to suppose -- and petitioner offers none -- that the government's presentation of its proof, including witnesses who linked petitioner to the cocaine ring, surprised him or that the drafting of the indictment prejudiced his defense. /4/ 2. Petitioner next contends (Pet. 5-6) that the district court erroneously admitted irrelevant evidence that police had found a gun during the search of the cocaine ring's headquarters. /5/ That evidence, however, was not irrelevant. Other evidence adduced at trial showed that petitioner conducted a substantial cocaine distribution ring from that "crack house." Gov't C.A. Br. 2-4. As the Second Circuit has noted, "(e)xperience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent as they keep scales, glassine bags, cutting equipment and other narcotics equipment." United States v. Weiner, 534 F.2d 15, 18 (2d Cir.), cert. denied, 429 U.S. 820 (1976); accord United States v. Alvarez, 860 F.2d 801, 829-830 (7th Cir. 1988), certs. denied, 109 S. Ct. 1966, 110 S. Ct. 97 (1989); id. at 829 n.29 (collecting cases). The challenged evidence was therefore relevant to the narcotics charges alleged in the indictment. Petitioner claims (Pet. 10-14) that the district court erroneously admitted, under Fed. R. Evid. 404(b), evidence of his May 1987 arrest on cocaine possession charges. See C.A. App. 387-388, 482-484. Rule 404(b) "protects against the introduction of extrinsic act evidence when that evidence is offered solely to prove character." Huddleston v. United States, 485 U.S. 681, 687 (1988). In determining whether such evidence is admissible under Rule 404(b), the trial court therefore must first determine "whether that evidence is probative of a material issue other than character." Id. at 686. If the evidence is "offered for such a proper purpose," it is then "subject only to general strictures limiting admissibility such as Rules 402 and 403." Id. at 688. Here, Count 140 of the indictment specifically alleged that petitioner had been apprehended while transporting cocaine to Charles Town, and that such activity was part of petitioner's efforts to conspire to defraud the United States. See C.A. App. 145. In these circumstances, the challenged evidence was directly relevant to the conspiracy charge and was thus admissible under Rule 404(b). /6/ Petitioner also contends (Pet. 29-31) that the district court erred in allowing the government to introduce inadmissible hearsay into evidence, pointing to the testimony of Thompson Gabriel. Gabriel had met with petitioner and petitioner's friend Kevin in Washington, D.C. Gabriel testified that after Kevin told them that he did not have any cocaine available, Gabriel and petitioner traveled to Miami, where petitioner obtained cocaine to distribute in Charles Town. C.A. App. 248-251. /7/ Gabriel's testimony was not hearsay; the government did not offer that out-of-court statement to prove the truth of the matter asserted, i.e., that Kevin had no cocaine available. See Fed. R. Evid. 801(c). Rather, the government presented the testimony to explain the reason for petitioner's trip to Florida. As such, the testimony was admissible relevant evidence. Petitioner next objects (Pet. 31) to the testimony of another witness, Sonless Martin, concerning statements made by Thompson Gabriel. Martin testified that Gabriel had told him that he was working with petitioner in a cocaine distribution operation in West Virginia and had invited Martin to participate in that operation. C.A. App. 332-333. /8/ At the time he made the statements, Gabriel was a member of the conspiracy in which petitioner was involved, and the statements were intended to further the aims of the conspiracy by recruiting Martin as a participant. Gabriel's statements to Martin were therefore admissible under Federal Rule of Evidence 801(d)(2)(E), which provides that statements "by a coconspirator of a party during the course and in furtherance of the conspiracy" that are offered against a party are not hearsay. 3. Petitioner contends (Pet. 14-27) that there was insufficient evidence to support his convictions on various narcotics offenses. With respect to the continuing criminal enterprise offense, petitioner points (Pet. 16-21) to evidence that other cocaine trafficking organizations were operating in Charles Town at the same time as petitioner's organization, and that some of the persons who worked for petitioner also worked for other dealers or ran their own drug businesses. But contrary to petitioner's suggestion, Congress did not draft Section 848 "to reach only 'king pins' of highly structured drug organizations." United States v. Maull, 806 F.2d 1340, 1343 (8th Cir. 1986), cert. denied, 480 U.S. 907 (1987); see United States v. Cruz, 785 F.2d 399, 407 (2d Cir. 1986). Moreover, to sustain a conviction under the statute, the government need not show that the defendant "'wielded absolute and exclusive control over his subordinates.'" United States v. Moya-Gomez, 860 F.2d 706, 747-748 (7th Cir. 1988) (quoting United States v. Possick, 849 F.2d 332, 336-337 (8th Cir. 1988)), cert. denied, 109 S. Ct. 3221 (1989). Here, the evidence showed that petitioner distributed cocaine to a number of "runners" who then followed petitioner's instructions and sold it on the street. In these circumstances, there was ample evidence to show that in conducting his cocaine trafficking operation, petitioner acted in concert with and supervised five or more other persons. /9/ With respect to his convictions on a number of cocaine distribution charges, petitioner asserts (Pet. 22-27) that the pertinent testimony was not sufficiently specific about the dates on which the distributions occurred. The district court instructed the jury that although "the indictment charges that the offenses were committed on or about a certain day, * * * (i)t is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged." C.A. App. 616. Since petitioner did not object to that instruction at trial, his claim before this Court must fail. 4. Petitioner contends (Pet. 28) that his acquittal on one narcotics charge required the district court to vacate his convictions on two other related charges. Petitioner contrasts his acquittal on Count 43, which charged him with possession with intent to distribute one and one-half kilograms of cocaine on December 25, 1986, with his convictions on Count 32, which charged him with distribution of cocaine in December 1986, and on Count 46, which charged him with possession with intent to distribute one and one-half kilograms of cocaine in January 1987. This Court has long recognized that juries can render "inconsistent verdicts * * * (because of) mistake, compromise, or lenity." United States v. Powell, 469 U.S. 57, 65 (1984); see Harris v. Rivera, 454 U.S. 339, 345 (1981) (per curiam); Standefer v. United States, 447 U.S. 10, 22-23 (1980); United States v. Dotterweich, 320 U.S. 277, 279 (1943); Dunn v. United States, 284 U.S. 390, 393 (1932). For that reason alone, even if petitioner could show that the jury's verdict was "inconsistent," he would not be entitled to relief. 5. Finally, petitioner contends (Pet. 32-33) that the district court's instruction to the jury concerning the testimony of witnesses who had entered into plea agreements with the government, namely, that "such plea bargaining has been approved as lawful and proper and is expressly provided for in the rules of this Court," C.A. App. 615, was plain error. /10/ That claim is baseless in light of the court's contemporaneous instruction that "the jury should keep in mind that such testimony is always to be received with caution and weighed with great care." Ibid. In these circumstances, the challenged instruction did not "undermine the fundamental fairness of the trial and contribute to a miscarriage of justice." United States v. Young, 470 U.S. 1, 16 (1985). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney NOVEMBER 1990 /1/ The court of appeals, however, vacated petitioner's separate conviction and concurrent sentence on the conspiracy count. Pet. App. 2-3. /2/ Section 848 provides, in pertinent part, that a person is "engaged in a continuing criminal enterprise" if he commits a felony violation of the federal narcotics statutes, and the violation is a part of a continuing series of violations * * * which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and * * * from which such person obtains substantial income or resources. 21 U.S.C. 848(c)(2). /3/ Accord United States v. Moya-Gomez, 860 F.2d 706, 752 (7th Cir. 1988), cert. denied, 109 S. Ct. 3221 (1989); United States v. Amend, 791 F.2d 1120, 1124-1125 (4th Cir.), cert. denied, 479 U.S. 930 (1986); United States v. Becton, 751 F.2d 250, 256 (8th Cir. 1984), cert. denied, 472 U.S. 1018 (1985); United States v. Sterling, 742 F.2d 521, 526 (9th Cir. 1984), cert. denied, 471 U.S. 1099 (1985); United States v. Johnson, 575 F.2d 1347, 1356 (5th Cir. 1978), cert. denied, 440 U.S. 907 (1979). /4/ Petitioner also contends (Pet. 9) that the district court's failure to poll the jury about the identity of the persons with whom he acted in concert deprived him of his right to a unanimous verdict. That claim is meritless. The district court instructed the jury that it must "unanimously agree on which three acts constitute the continuing series of violations," and must "unanimously agree on which five or more people (petitioner) committed the violations with." C.A. App. 620-621. After the verdict, the district court, at the request of petitioner's counsel, asked the foreman whether the jurors were "unanimous in agreeing on the five persons that were involved," and the foreman responded that they were. C.A. App. 656. /5/ The evidence consisted of a sheriff's testimony accurately describing government exhibit 8 as "a 25 automatic weapon that was found by Patrolman Parker in the rear room of the residence during the search." C.A. App. 318. /6/ Petitioner suggests (Pet. 13) that admission of this evidence was unfairly prejucdicial because the jury might have inferred that he had been convicted on the possession charges. Petitioner's speculation finds no support in the record. Petitioner also asserts (Pet. 11, 13) that since he was later convicted on state charges arising from his 1987 arrest, the introduction of evidence of that arrest here violated the Double Jeopardy Clause. This Court's decisions foreclose that claim. E.g., Heath v. Alabama, 474 U.S. 82, 88-89 (1985); United States v. Wheeler, 435 U.S. 313, 316-317 (1978); Abbate v. United States, 359 U.S. 187, 194-195 (1959); Bartkus v. Illinois, 359 U.S. 121, 129 (1959). /7/ The record showed that Kevin Gallon was a cocaine dealer in Washington, D.C., who had helped petitioner obtain cocaine for his distribution ring. C.A. App. 383-387. /8/ Gabriel testified that he had moved from Florida to West Virginia in the fall of 1986 and that he helped petitioner in processing cocaine, distributing it, and collecting money from the "runners." C.A. App. 240-248, 251-253. /9/ Petitioner claims (Pet. 21-22) that the evidence did not show that he "obtained substantial income and resources" from his cocaine business. Petitioner is wrong. Several witnesses testified that they had seen petitioner with large amounts of cash that he had acquired from his cocaine operation. See, e.g., C.A. App. 285-287, 396-398, 462. /10/ Petitioner did not object to that instruction at trial. C.A. App. 639.