The opinion of the court was delivered by: MOTLEY
This opinion responds to challenges raised to jury instructions. The trial involved multiple defendants charged with multiple narcotics and firearms violations. Since this court refused to amend its instructions as requested, this opinion now sets forth the reasons underlying the court's refusal, particularly as to the exceptions raised by defendant Martinez-Torres (Torres).
Torres raised several exceptions to the court's instructions. These exceptions may be summarized as follows: 1) Torres asked the court to instruct that a conspiracy to violate the narcotics laws, 21 U.S.C. § 846,
is a lesser included offense of a continuing criminal enterprise in violation of the narcotics laws, 21 U.S.C. § 848(b);
2) Torres also requested the court to charge that a § 846 conspiracy is a necessary predicate of a § 848 continuing criminal enterprise; and 3) Torres further claimed that the three predicate offenses of a § 848 violation must be specifically charged in the indictment.
Initially, the court notes that Torres' counsel submitted no proposed jury instructions but raised oral exceptions to the court's instructions for the first time after the court's charge to the jury. When trial counsel makes no request for a jury instruction but raises objections after the court's charge, the standard governing review of the trial court's refusal to amend its instructions is whether there was "plain error affecting substantial rights." Fed. R. Crim. P. 52(b); United States v. Tsanas, 572 F.2d 340, 347 (2d Cir.), cert. denied, 435 U.S. 995, 56 L. Ed. 2d 84, 98 S. Ct. 1647 (1978); see also United States v. Salas, 387 F.2d 121, 122 (2d Cir.), cert. denied, 393 U.S. 863, 21 L. Ed. 2d 131, 89 S. Ct. 145 (1967) (denial of request for instruction was not an abuse of discretion where the request was not made until after the charge to the jury had been completed). Moreover, Torres' objections (i.e. objections 1) and 2) above), other than the due process exceptions, did not specifically set forth the grounds of objection. Since Torres' objections were unclear, there is a serious question whether these objections are preserved for appeal. Fed. R. Crim. P. 30; United States v. Dixon, 536 F.2d 1388, 1397 (2d Cir. 1976); see also United States v. Jackson, 569 F.2d 1003 (7th Cir.), cert. denied, 437 U.S. 907, 98 S. Ct. 3096, 57 L. Ed. 2d 1137 (1978) (counsel has affirmative obligation to make the district court aware of any of its errors in its decision to reject a requested jury instruction and counsel cannot rely on court's own examination amidst the diverse pressures during closing stages of trial). Nevertheless, since Torres' exceptions raise important and unsettled issues with respect to the federal statutes involved, this court believes that each exception raised merits careful consideration.
The indictment in this case charged thirteen defendants with twelve counts including substantive narcotics and firearms violations, a narcotics conspiracy, and a firearms conspiracy. Torres was the only defendant charged in all twelve counts and he alone was charged with engaging in a continuing criminal enterprise. After a three week trial, the jury found Torres and each defendant guilty of each count with which he or she was charged.
As noted above, after the court's charge to the jury, counsel for Torres raised exceptions to the charge. Counsel stated:
In order for the jury to convict Martinez-Torres of Count Two [the continuing criminal enterprise count], they would necessarily have to find him guilty of Count One [the narcotics conspiracy] as a predicate. You can't be guilty of being a supervisor and organizer of five or more people unless you are guilty of the conspiracy. . . . If they find him not guilty of the conspiracy, Judge, there is no need for them to consider Count Two; he would automatically be acquitted on Count Two.
(Trial Transcript at 3458). While counsel did not explicitly so state, this court interprets these objections as a request under Rule 31(c) of the Federal Rules of Criminal Procedure for a lesser included offense instruction. Essentially, counsel was claiming that a defendant cannot commit the crime of engaging in a continuing criminal enterprise without also necessarily committing the crime of conspiracy. That is, the elements of the crime of managing a continuing criminal enterprise completely encompass all the elements of conspiracy so that in violating § 848, the criminal necessarily also violates § 846. Counsel's conception of the relationship between §§ 848 and 846 follows the definition of a lesser included offense. As the Second Circuit has stated:
"Where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense; and if, in the commission of acts made unlawful by one statute, the offender must always violate another, the one offense is necessarily included in the other."
United States v. Sperling, 560 F.2d 1050 (2d Cir. 1977) quoting 22 C.J.S. § 823 (1961) (footnotes omitted); see also Brown v. Ohio, 432 U.S. 161, 166-67, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977).
It is elementary that unless a § 846 conspiracy is a lesser included offense of a § 848 continuing criminal enterprise, this court's refusal to instruct was not plain error. Sansone v. United States, 380 U.S. 343, 13 L. Ed. 2d 882, 85 S. Ct. 1004 (1965); see also United States v. Tsanas, 572 F.2d 340 (2d Cir.), cert. denied, 435 U.S. 995, 56 L. Ed. 2d 84, 98 S. Ct. 1647 (1978); United States v. Busic, 592 F.2d 13 (2d Cir. 1978).
This court emphasizes that it will not attempt to decide whether a § 846 conspiracy is a lesser included offense of a § 848 continuing criminal enterprise. Instead the discussion below will simply demonstrate that neither the Supreme Court nor the Second Circuit has settled the issue of whether a § 846 conspiracy is a lesser included offense of a § 848 continuing criminal enterprise. Therefore, this court's refusal to further instruct on the lesser included offense was proper because of a combination of two reasons: 1) since Torres raised the issue of lesser included offense only after the court's charge to the jury, the court's refusal to so charge is governed by the standard of plain error on appeal; and 2) since the law is now unsettled on the lesser included offense issue, the court's refusal to so instruct was not plain error.
A. The Analytical Confusion of United States v. Sperling
Since United States v. Sperling, 560 F.2d 1050 (2d Cir. 1977) has generated much of the analytical confusion concerning the relationship between §§ 846 and 848, the court turns first to a detailed analysis of Sperling. The facts of this huge case were set out in United States v. Sperling, 506 F.2d 1323 (2d Cir.) (Sperling I), cert. denied, 420 U.S. 962, 95 S. Ct. 1351, 43 L. Ed. 2d 439 (1974), and this court need not restate them in detail here. Sperling and seventeen others were indicted on May 11, 1973 on various counts charging violations of the narcotics laws. After a four week jury trial before Judge Pollack, Sperling was convicted on all counts including a count charging conspiracy to violate the narcotics laws, 21 U.S.C. § 846, and a separate count charging him with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (1970). On September 12, 1973, Judge Pollack sentenced Sperling to life imprisonment and a $100,000 fine on the § 848 count and to a concurrent term of thirty years imprisonment as well as a fine of $50,000 on the § 846 count. On Appeal, the Second Circuit affirmed the convictions on these two counts, reversed Sperling's conviction on three substantive narcotics counts and remanded for, inter alia, a reconsideration of the concurrent sentence imposed on the narcotics conspiracy count. 506 F.2d at 1335 n.14.
On remand for reconsideration of the narcotics conspiracy sentence, Judge Pollack adhered to the original sentence that Sperling be imprisoned for thirty years on the conspiracy count to run concurrently with the life sentence originally imposed on the continuing criminal enterprise count. Judge Pollack also reinstated the original cumulative fines of $30,000 on the § 846 count and $100,000 on the continuing criminal enterprise count. United States v. Sperling, 413 F. Supp. 845, 847 (S.D.N.Y. 1976). On Appeal, Sperling argued that because conspiracy was a lesser included offense of the continuing criminal enterprise count, the sentencing on both counts, rather than one or the other, violated his Fifth Amendment guaranty against double jeopardy. Agreeing with Sperling, the Second Circuit vacated Sperling's prison sentence and the fine on the conspiracy count but allowed the conviction on the conspiracy count to stand. United States v. Sperling, 560 F.2d at 1060.
B. The Lesser Included Offense Holding
In Sperling II, the Second Circuit accepted Sperling's contention that the proper resolution of the cumulative punishment issue required the double jeopardy analysis under the test set forth in Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932):
The applicable rule 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 an additional fact which the other does not.
Id. at 304. See also Brown v. Ohio, 432 U.S. 161, 166, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977); Iannelli v. United States, 420 U.S. 770, 43 L. Ed. 2d 616, 95 S. Ct. 1284 (1975); Gore v. United States, 357 U.S. 386, 78 S. Ct. 1280, 2 L. Ed. 2d 1405 (1958). It is important to note Sperling II clearly conceived the issue before it to be a Blockburger double jeopardy problem:
The double jeopardy clause would not be violated here unless all the elements of the § 846 conspiracy offense must be proved in order to convict of the § 848 continuing criminal enterprise offense. . . . Put another way, under traditional analysis if a § 846 conspiracy is a "lesser included offense" of a § 848 continuing criminal the enterprise [sic], then punishment imposed on the greater offense (§ 848) would preclude punishment on the lesser (§ 846).
560 F.2d at 1055. Under its double jeopardy analysis, the Second Circuit held:
On the facts here involved, § 846 defines a lesser included offense within § 848. One of the elements required to convict a § 848 offense is that the defendant shall have violated the narcotics laws "in concert with five or more other persons." "Concerted" means "mutually contrived or agreed on," or "performed in unison." Webster's New Collegiate Dictionary, 233 (1976 ed.). We think it is too plain for cavil that to act "in concert" to violate the law necessarily includes conspiracy to do so, and, hence, to prove the continuing criminal enterprise charge is to prove the conspiracy. . . . In the present setting, then, these two offenses are "the same in law and in fact."
560 F.2d at 1055 (citations and footnotes omitted) (emphasis added).
In conclusion the Second Circuit stated:
We vacate appellant Sperling's sentence on Count One, the conspiracy count, but we vacate only the sentence, for his conviction on Count One remains unaffected. . . . In the unlikely event that sometime in the future his conviction on Count Two shall be overturned, the sentence ...