Appeal from an order of the United States District Court for the Southern District of New York, Milton Pollack, Judge, denying appellant's motion under 28 U.S.C. § 2255 to vacate his sentence on grounds of double jeopardy, insufficient evidence, and improper jury instructions. Affirmed.
Before: PRATT and MINER, Circuit Judges, and CHARLES H. TENNEY, Senior Judge of the United States District Court for the Southern District of New York, sitting by designation.
The only significant issue on this appeal is whether the double jeopardy clause of the fifth amendment bars separate judgments of conviction and imposition of cumulative punishments for supervising a continuing criminal enterprise ("CCE") engaged in narcotics distribution in violation of 21 U.S.C. § 848 and for conspiring to engage in an illegal racketeering enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d). Appellant Ishmael Muhammad argues, inter alia, that we should first inquire into the facts underlying his convictions, and then conclude that because those convictions are based on the same transactions, he has been twice convicted for the same offense. In addition, Muhammad contends that all his convictions should be set aside for insufficient evidence and improper jury instructions.
Case law in this circuit, however, dictates that a proper double jeopardy analysis involves a legal approach rather than the fact-specific inquiry urged by Muhammad. After reviewing the two statutes, we conclude that congress intended to provide multiple punishments for violations of their provisions and that the double jeopardy clause does not bar Muhammad's consecutive sentences. The other contentions raised on appeal are either barred from further judicial review or totally without merit. Accordingly, we affirm the order denying Muhammad's post-conviction motion.
In October and November 1983 Muhammad and seven codefendants were tried in the United States District Court for the Southern District of New York, before the Hon. Milton Pollack, Judge, on charges of narcotics, firearms, and RICO violations arising from the operation of a massive narcotics ring governed by a body known as the "council". After a six-week trial, the jury returned guilty verdicts on 32 of the 43 counts with which Muhammad and his co-defendants had been charged. Muhammad, who had been charged in five different counts, was acquitted on two of them and convicted for conspiring to distribute heroin in violation of 21 U.S.C. § 846, for operating a CCE in violation of id. § 848, and for conspiring to violate RICO by participating in the affairs of an illegal enterprise that trafficked in controlled substances, in violation of 18 U.S.C. § 1962(d). On January 12, 1984, Judge Pollack sentenced Muhammad to life imprisonment without parole and a $50,000 fine on the CCE conviction and to a consecutive fifteen year prison term and a $12,500 fine on the RICO conspiracy conviction. The drug conspiracy and CCE convictions merged for purposes of sentencing. See United States v. Sperling, 560 F.2d 1050, 1055 (2d Cir. 1977).
On his direct appeal Muhammad specifically argued that the evidence was insufficient to support his CCE conviction; he also adopted all contentions made on the joint appeal by his co-defendants, including the ascription of error to Judge Pollack's jury charge on the elements of the CCE count. We rejected all the arguments raised on that appeal, finding "only a few meriting discussion", and affirmed all judgments of conviction. United States v. Thomas, 757 F.2d 1359, 1362 (2d Cir.), cert. denied, 474 U.S. 819, 106 S. Ct. 66, 88 L. Ed. 2d 54 (1985).
Since that first appeal Muhammad has challenged his convictions by two pro se motions under 28 U.S.C. § 2255. In the first, filed on October 1, 1985, Muhammad moved for a new trial, claiming that his presentence investigatory report contained uncorrected, false, and derogatory information, and, for the second time, that the trial evidence failed to support his CCE conviction. Although noting that the sufficiency claim had already been raised and rejected on Muhammad's direct appeal, nevertheless the district court disposed of Muhammad's claims on the merits and denied the motion in an unpublished opinion issued November 15, 1985.
In his second § 2255 motion, which is the basis for this appeal, Muhammad sought to have his sentence vacated on the grounds that it was improper for the district court to impose consecutive sentences under the CCE and RICO conspiracy convictions, that the trial evidence was insufficient to support any of the counts on which he was convicted, and that Judge Pollack had given erroneous jury instructions on the CCE count. In an unpublished opinion dated June 10, 1986, Judge Pollack denied the motion, holding that consecutive sentencing was permissible on the CCE and RICO conspiracy counts because each statute requires proof of a fact that the other does not. He refused to consider the sufficiency claim relating to the CCE conviction because Muhammad was not privileged to raise collaterally the same issue on the same ground that he had presented unsuccessfully on two prior occasions. As for the sufficiency of the evidence to support the narcotics and RICO conspiracies, Judge Pollack ruled that Muhammad's deliberate by-pass of those issues on his direct appeal and on his first § 2255 motion precluded collateral review here; nevertheless, Judge Pollack opined that the evidence amply supported those convictions. He did not separately address the jury instructions claim.
On appeal Muhammad claims initially that he has been subjected to multiple consecutive punishments for charges that constitute the same offense. Citing to the double jeopardy test enunciated in Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), Muhammad contends that his double jeopardy rights have been violated because § 1962(d) fails to require proof of any element not also required under § 848, and because the factual allegations supporting these two charges were identical. Muhammad contends that of the 36 predicate acts alleged in the RICO conspiracy count, 33 were also alleged as predicate acts under the CCE count, and that the remaining three did not pertain to him. Muhammad argues further that his claims of insufficient evidence and improper jury instructions may properly be raised on this appeal because the government cannot show he sought to gain a tactical advantage by failing to raise those issues earlier.
For the reasons discussed below, we affirm.