JUSTO ENRIQUE JAY, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-985

   In The Supreme Court Of The United States

   October Term, 1989

   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

            TABLE OF CONTENTS
   Questions Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The per curiam opinion of the court of appeals (Pet. App. 1a-9a) is
reported at 887 F.2d 1081.

                             JURISDICTION

   The judgment of the court of appeals was entered on September 21,
1989.  A petition for rehearing was denied on October 19, 1989 (Pet.
App. 102).  The petition for a writ of certiorari was filed on
December 18, 1989.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether a count charging that petitioner operated a continuing
criminal enterprise (CCE), which tracked the language of the statute
but did not set out the series of drug violations on which the charge
was based, was defective even though petitioner had actual notice of
the drug violations comprising the series.

   2. Whether petitioner's CCE conviction must be reversed because the
district court did not instruct the jury that it was required to agree
unanimously on the offenses comprising the continuing series of
violations, where petitioner was also convicted on 14 substantive drug
counts.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Western District of North Carolina, petitioner was convicted on 14
counts of possessing cocaine with intent to distribute it, in
violation of 21 U.S.C. 841(a);  one count of conspiring to commit that
offense, in violation of 21 U.S.C. 846;  and one count of engaging in
a continuing criminal enterprise (CCE), in violation of 21 U.S.C. 848.
 He was sentenced to life imprisonment without possibility of parole
on the CCE count and to consecutive sentences totalling 115 years on
the remaining counts.  The court of appeals vacated the sentence on
the conspiracy count because it had held in United States v. Lurz, 666
F.2d 69, 81 (4th Cir. 1981), cert. denied, 455 U.S. 1005 (1982), that
a Section 846 conspiracy is a lesser included component of a Section
848 CCE offense.  The court affirmed in all other respects.  Pet. App.
1a-9a.

   The evidence, which is summarized in the opinion of the court of
appeals, showed that petitioner "was one of the leaders of a major
drug distribution network operating on the eastern coast of the United
States" from 1979 through 1984.  Pet. App. 6a.  Petitioner and his
partner, who were based in Miami, Florida, regularly supplied their
underlings with cocaine for transportation to Charlotte, North
Carolina, and other eastern cities.  Id. at 7a.

   Petitioner was indicted on the CCE charge in February 1988.  Five
weeks later, he was indicted by a different grand jury on the
conspiracy count and on 14 substantive counts alleging distribution of
cocaine.  Prior to trial, petitioner moved for a bill of particulars
on the CCE count.  He also moved to dismiss the indictment on the
grounds that (1) it failed to provide him with notice of the specific
transactions alleged to comprise the "continuing series" element of
the CCE offense, and (2) it failed to safeguard his right to be tried
only for offenses charged by the grand jury.  The district court
ordered the government to file a bill of particulars specifying the
continuing series of violations, and the government responded that it
would rely specifically on the 14 substantive counts charged in the
second indictment.  In addition, the bill of particulars listed other
alleged violations on which the government stated it would "rely
generally." The district court subsequently denied the motion to
dismiss.  Pet. App. 2a-3a.

   On appeal, petitioner contended that the indictment was defective
because it failed to specify the predicate drug violations alleged to
comprise the "continuing series" element of a CCE offense.  In
rejecting that claim, the court of appeals held (Pet. App. 4a) that a
CCE charge need not enumerate the predicate offenses relied on by the
government so long as it tracks the language of the CCE statute.  The
court added (id. at 5a) that petitioner had received adequate notice
through the bill of particulars and the second indictment of the
predicate offenses that would be proved at trial.  The court of
appeals also rejected (id. at 6a n.3) petitioner's claim that the
district court erroneously failed to instruct the jury that, in order
to convict him on the CCE count, it had to agree unanimously on the
offenses comprising the continuing series of violations.

                               ARGUMENT

   1. Petitioner renews his contention (Pet. 10-22) that the CCE count
was deficient because it failed to allege the specific drug offenses
that comprised the continuing series of violations under the CCE
statute.  Specifically, he argues that even if the bill of particulars
and the second indictment were sufficient to give him notice of the
predicate offenses underlying the CCE charge, they were not sufficient
to protect his right to be tried and convicted only on the basis of
facts found by the grand jury that returned that charge.

   The courts below properly rejected petitioner's contention.  "(I)n
order to support a Section 848 charge, the government is not required
to plead in any form * * * any of the eligible predicate offenses, but
may instead simply prove at trial the continuing series of offenses."
United States v. Young, 745 F.2d 733, 747 (2d Cir. 1984), cert.
denied, 470 U.S. 1084 (1985).  This rule is consistent with the
general principle that indictments need only "track the language of a
statute and, in addition, do little more than state time and place in
approximate terms." United States v. Salazar, 485 F.2d 1272, 1277 (2d
Cir. 1973), cert. denied, 415 U.S. 985 (1974).  See also Hamling v.
United States, 418 U.S. 87, 117 (1974).  In this case, the CCE count
was entirely adequate, since it alleged that petitioner had managed an
enterprise that regularly distributed cocaine in North Carolina from
1978 through 1984.  Pet. App. 4a n.2.

   No court has reversed a CCE conviction because of the failure of
the indictment to specify the predicate drug violations where the CCE
count tracked the language of the statute and the defendant had actual
notice of the predicate offenses.  See, e.g., United States v. Staggs,
881 F.2d 1527 (10th Cir. 1989) (en banc), cert. denied, No. 89-549
(Jan. 8, 1990);  United States v. Alvarez-Moreno, 874 F.2d 1402, 1411
(11th Cir. 1989), petition for cert. pending, No. 89-6279;  United
States v. Moya-Gomez, 860 F.2d 706, 751-752 (7th Cir. 1988), cert.
denied, 109 S. Ct. 3221 (1989);  United States v. Becton, 751 F.2d
250, 256-257 (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);  United
States v. Sperling, 506 F.2d 1323, 1344 (2d Cir. 1974), cert. denied,
420 U.S. 962 (1975).  In this case, the CCE count tracked the language
of the statute, and the bill of particulars gave petitioner clear
notice of the predicate offenses on which the government would rely.
Moreover, since the predicate offenses were set out in the second
indictment, petitioner was not convicted on the basis of allegations
not approved by a grand jury.

   Contrary to petitioner's contention (Pet. 10-16), Russell v. United
States 369 U.S. 749 (1962), and Stirone v. United States, 361 U.S. 212
(1960), do not require reversal.  The defendants in Russell were
charged with violating 2 U.S.C. 192, which prohibits the refusal to
answer questions pertinent to a subject under inquiry by a
congressional committee.  The Court held that an indictment alleging a
violation of Section 192 must state the subject under inquiry by the
congressional committee, lest it leave "the chief issue undefine." 369
U.S. at 766.  The defendant in Stirone was charged with violating 18
U.S.C. 1951, which prohibits extortionate interference with interstate
commerce.  The Court held that it constituted an impermissible
amendment of an indictment alleging a violation of Section 1951 for
the trial court to allow the jury to find the defendant guilty on a
determination that he had interfered with the shipment of steel out of
Pennsylvania when the indictment charged him with obstructing the
movement of sand into Pennsylvania.  In this case, in contrast, the
chief issue was not undefined and the government's proof at trial did
not amend the allegations in the indictment:  the indictment informed
petitioner that he was charged with operating an enterprise that
distributed cocaine in North Carolina between 1978 and 1984, the bill
of particulars and the second indictment further defined the
allegations, and the evidence at trial proved those offenses, not
others.

   2. Petitioner also contends (Pet. 22-28) that the district court
erred by failing to instruct the jury that, in order to convict him on
the CCE count, it had to agree unanimously on the offenses comprising
the continuing series of violations.  Petitioner contends that review
is warranted primarily because the Third Circuit held in United States
v. Echeverri, 854 F.2d 638, 642-643 (1988), that the trial court's
refusal to give a specific unanimity charge was reversible error.
This case, however, is very different from Echeverri.  In that case,
the defendant was not charged with a series of counts alleging
substantive drug distribution offenses, although the evidence
purported "to show numerous alleged violations." 854 F.2d at 643.  In
that circumstance, the court stressed that "there is no assurance that
the jury unanimously agreed that the same three narcotics violations
occurred." Ibid.  In this case, in contrast, the second indictment set
forth the predicate offenses on which the government relied and the
jury convicted petitioner on each of the 14 substantive drug counts
charged in that indictment.  Thus, the jury in this case reached
unanimous agreement on at least three predicate offenses underlying
the CCE charge.  Therefore, this case is comparable to United States
v. Hernandez-Escarsega, 886 F.2d 1560, 1572 (9th Cir. 1989), where the
court distinguished Echeverri on the ground that in
Hernandez-Escarsega there was "no question of juror unanimity" with
respect to the predicate offenses underlying the CCE charge.  Since
there is no question of juror unanimity, there is no warrant for
further review.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   JOEL M. GERSHOWITZ

      Attorney

   FEBRUARY 1990