Appeal from judgments of convictions and sentencing orders entered after a jury trial in the United States District Court for the Southern District of New York (Edward Weinfeld, Judge). Affirmed in part, reversed in part and vacated in part.
Feinberg, Chief Judge, Pierce and Altimari, Circuit Judges.
Defendants-appellants Ernesto J. and Ernest A. Benevento, Earl A. Keller, and Carmine Loiacono appeal from judgments of conviction entered in the United States District Court for the Southern District of New York after a four-week jury trial before Judge Edward Weinfeld. After the district court denied their motions to suppress evidence, see 649 F. Supp. 1379 (S.D.N.Y. 1986), defendants were tried on a seven-count indictment. The indictment charged Ernesto J. and Ernest A. Benevento, inter alia, in count one with conspiracy to manufacture and distribute heroin in violation of 21 U.S.C. § 846, in counts four and vie with participating in a racketeering enterprise, the "J.E.M. Corporation," through a pattern of racketeering laws in violation of 18 U.S.C. §§ 1962(c) and 1962(d), and in count six with conducting a continuing criminal enterprise in violation of 21 U.S.C. § 848. Loiacono was charged with participating in the narcotics conspiracy and with the substantive RICO and RICO conspiracy violations. Keller was indicted only for participating in the narcotics conspiracy. After the jury convicted defendants of all crimes charged in the indictment, Judge Weinfeld sentenced them. In particular, he sentenced Ernesto J. and Ernest A. Benevento to serve, inter alia, concurrent terms of imprisonment on both the narcotics conspiracy and the continuing criminal enterprise counts.
On appeal, Ernesto J. and Ernest A. Benevento and Keller contend that the district court erred in denying their suppression motions. In addition, the Beneventos claim that the district court erred when it sentenced them on both the narcotics conspiracy and the continuing criminal enterprise counts. Ernest A. Benevento appeals separately, arguing that the district court erred when it instructed the jury that it could find him guilty on the continuing criminal enterprise count if the jury found that he aided and abetted Ernesto J. Benevento in conducting a continuing criminal enterprise. Loiacono contends, inter alia, that the government's evidence at trial was insufficient to establish that he violated the racketeering laws and that his convictions on both the substantive RICO and RICO conspiracy counts violated the double jeopardy clause of the fifth amendment.
For the reasons stated below, we affirm the judgments of conviction for the defendants on all counts, except we reverse Ernest A. Benevento's conviction on the continuing criminal enterprise charge in count six, and we vacate Ernesto J. Benevento's sentence on the narcotics conspiracy charge in count one.
The government's evidence at trial established that, in early 1982, the Beneventos, Loiacono, and Keller, along with their criminal associates in the United States, Mexico, and Europe, joined together to form a criminal enterprise known as the "J.E.M. Corporation" ("J.E.M."). J.E.M. was organized for the purpose of facilitating a large-scale, international heroin manufacturing and distribution conspiracy. As part of this conspiracy, J.E.M. planned to 1) import into the United States various raw materials necessary for the manufacture of heroin, 2) convert those raw materials into a highly pure form of heroin, and 3) distribute the manufactured heroin through a network of distributors in the metropolitan New York area. By the time of J.E.M.'s discovery by government agents, it had completed its first manufacturing and distribution venture and planned additional ventures of similar magnitude.
During the first phase of J.E.M.'s operations, Ernesto J. Benevento, Loiacono, and others associated with J.E.M. purchased overseas large quantities of morphine base and surreptitiously imported it into the United States aboard a shop in South Florida, near West Palm Beach. Once the morphine base was successfully shipped into the United States, J.E.M. arranged to transport it to a house in Chandler, Arizona, owned by Ernesto J. Benevento's uncle, Ernest A. Benevento, where a laboratory had been set up to facilitate the heroin manufacturing and conversion process.
Keller served as J.E.M.'s principal courier for shipping the morphine base from Florida to Arizona. In April 1984, Keller began shuttling back and forth in an automobile between West Palm Beach, Florida, and Chandler, Arizona, with plastic jugs containing morphine base hidden in the trunk of the car. In June 1984, when Keller was on the last courier run to Arizona, he was stopped for speeding by New Mexico State Police Patrolman Phillip Snedeker. After Snedeker stopped Keller and approached his automobile, he detected an odd odor, which he believed was associated with cocaine, emanating from the car. His suspicions aroused, Snedeker asked Keller if he could inspect the trunk of the car, and Keller agreed. Snedeker observed that the trunk had been altered to include a partition which created a hidden compartment between the back of the trunk and the passenger compartment. Snedeker then requested that Keller accompany him a short distance to the local state police office for a more thorough search. Keller complied and followed Snedeker to the police station in his automobile.
Upon arriving at the police station, Snedeker asked Keller whether the police could conduct a search of the automobile. Keller agreed and executed a consent form which authorized the search. The ensuing search uncovered nineteen plastic jugs containing morphine base. The jugs were hidden in the trunk of the automobile behind the partition that Snedeker had observed. The New Mexico police then arrested Keller.
Through Keller's efforts, approximately 300 kilograms of morphine base were transported to the Arizona laboratory. While morphine base was being transported to Arizona, Ernesto J. Benevento, Loiacono, and their associates proceeded to hire two drug chemists, Francois Scapula and Charles Altieri, to conduct the heroin manufacturing and conversion process. Thereafter, J.E.M. arranged to smuggle Scapula and Altieri into the United States aboard Ernesto J. Benevento's yacht. Once inside the United States, Scapula and Altieri flew to Arizona and began the manufacturing process under the supervision of Ernesto J. Benevento and Loiacono. When the manufacturing process was complete, J.E.M. began distributing the heroin. Employing six distribution groups located in metropolitan New York, J.E.M. sold approximately 146 kilograms of heroin from July 1984 to March 1985 for a gross profit of approximately $23 million.
Due to the success of the first venture, J.E.M. began planning a second venture, "project 2," which was to be of similar organization and magnitude as the first. To fund the second venture, the Beneventos, Loiacono and their associates each contributed $200,000. Since much of the initial activity for the second venture was to take place outside the United States, J.E.M. had to smuggle the investment capital out of the country. For this purpose, J.E.M. conscripted Fatima dos Santos Nobre, Scapula's girlfriend, to serve as a currency courier. By this time, however, J.E.M.'s operations had fallen under the scrutiny of the Drug Enforcement Agency, and DEA agents maintained surveillance over Nobre during her trips out of the country while smuggling currency. Thus, in March 1985, during Nobre's first currency smuggling trip, and after she had checked in for her flight from Miami to Geneva, Switzerland, DEA agents seized her luggage and searched it. In her luggage, agents found currency in excess of $400,000 for which Nobre had not filed a currency declaration. The agents then seized the currency and marked her bags in such a manner to suggest that an airline employee, or some other person, had tampered with them to avoid Nobre's suspicion of the DEA agents' actions.
In May 1985, when Nobre prepared for a second currency smuggling trip, she met Ernesto J. Benevento at a hotel in New York City, where she was given several hundred thousand dollars in currency earmarked for the second drug venture. Benevento then drove Nobre to Kennedy International Airport and accompanied her as she checked-in for a SwissAir flight to Geneva. Once Nobre had checked her luggage with SwissAir DEA agents seized the luggage and searched it. As a result of this search, the agents discovered the currency given her by Benevento. To avoid suspicion, however, they did not seize the currency, but photographed it before replacing it in Nobre's luggage.
The following month, Ernesto J. and Ernest A. Benevento attempted to make another currency smuggling run for J.E.M. The Beneventos arrived at Kennedy International Airport and checked their luggage with SwissAir prior to the departure of a flight to Geneva. When they check in for the flight, however, a SwissAir employee recognized Ernesto J. Benevento as the man who had accompanied Nobre one month earlier when government agents searched her luggage for currency. SwissAir officials then alerted Customs Special Agent Joseph Henderson as to Benevento's presence on the flight. Henderson proceeded to seize the luggage Benevento had checked for the flight and searched it. In the luggage, Henderson discovered $956,000 in currency for which the Beneventos had not filed outgoing currency declarations. Customs agents then arrested the Beneventos for currency violations as they were boarding their flight to Geneva.
From the time of their arrest on the currency charges in June 1985, until they were arrested on the narcotics conspiracy charges in May 1986, the Beneventos remained free on bail. During this time, the government's investigation into the narcotics conspiracy was continuing and culminated in the search of the Beneventos' Florida homes, as well as searches of other locations suspected of containing evidence of J.E.M.'s operations, including the Arizona laboratory. The search of the Beneventos' homes yielded computer records maintained by Ernest A. Benevento which included detailed financial accounting information regarding J.E.M.'s drug operations.
In December 1986, the grand jury indicted the defendants and charged all of them in count one with participating in a narcotics manufacturing and distribution conspiracy in violation of 21 U.S.C. § 846 (the "narcotics conspiracy" count). The Beneventos were charged in count two with interstate travel in aid of racketeering violation of 18 U.S.C. § 1952 and Ernest J. Benevento was charged in count three with a separate violation of section 1952. The Beneventos and Loiacono were charged in count four with participating in a racketeering enterprise from January 1982 through May 1986 in violation of 18 U.S.C. § 1962(c) ("substantive RICO" count), and the indictment set forth as predicate acts the narcotics conspiracy, a conspiracy to import morphine base into the United States, failure to file outbound currency declarations and interstate travel in aid of racketeering. The Beneventos and Loiacono were charged in count five with conspiracy to participate and conduct the affairs of a RICO enterprise, the J.E.M. Corporation, in violation of 18 U.S.C. § 1962(d) ("RICO conspiracy" count) and this count alleged the same predicate acts that were set forth in count four. In count six, the Beneventos were charged with conducting a continuing criminal enterprise in violation of 21 U.S.C. § 848 (the "CCE" count).
Prior to trial, the Beneventos and Keller filed motions to suppress evidence. Keller moved to suppress evidence that resulted from the search of his automobile, and the Beneventos moved to suppress, inter alia, evidence obtained from the search of their luggage at Kennedy International Airport and the searches of their Florida homes. The district court denied Keller's and the Beneventos' suppression motions. See 649 F. Supp. 1379 (S.D.N.Y. 1986).
At trial, the government overwhelmingly established the defendants' guilt of the crimes charged in the indictment. The computer records obtained from Ernest A. Benevento's home substantially corroborated the government's witnesses' testimony and set out in detail the intricacies of J.E.M.'s international drug operations. On March 27, 1987, after the jury returned a guilty verdict against all defendants on each count in the indictment, Judge Weinfeld sentenced the defendants as follows: Ernesto J. Benevento was sentenced to two concurrent twenty-five-year term of imprisonment on counts one and six, twenty-year terms on counts four and five, five-year terms on counts two and three and was ordered to pay a $500,000 fine on counts one and two. Ernest A. Benevento was sentenced to four concurrent eighteen-year terms of imprisonment on counts one, four, five and six, a five-year term on count two and was ordered to pay a $250,000 fine on counts one and ...