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FISHER v. UNITED STATES

June 1, 1998

GUY T. FISHER, Petitioner, - v - UNITED STATES OF AMERICA, Respondent. ELMER T. MORRIS, Petitioner, - v - UNITED STATES OF AMERICA, Respondent. FRANK ALPHONSO JAMES, Petitioner, - v - UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: POLLACK

MEMORANDUM OPINION AND ORDER

 POLLACK, Senior U.S. District Judge,

 Guy T. Fisher ("Fisher") and Elmer T. Morris ("Morris"), federal prisoners serving sentences dated January 12, 1984 for narcotics violations, respectively petition, pursuant to 28 U.S.C. § 2255, to vacate portions of the judgment on their sentences. Fisher's petition, dated May 5, 1997, will be granted only to the extent that his conviction on Count One of the Indictment pursuant to 21 U.S.C. § 846 for conspiracy to distribute narcotics will be vacated. Fisher's petition will in all other respects be denied. Morris' petition, dated May 23, 1997, will be denied in its entirety.

 Frank Alphonso James ("James"), a federal prisoner serving a sentence dated January 12, 1984 for narcotics violations, who was tried together with Fisher and Morris, separately petitions pursuant to 28 U.S.C. § 2255 to vacate portions of the judgment on his sentence or, in the alternative, to be re-sentenced. James' petition, dated April 24, 1997, will be granted only to the extent that his conviction on Count One of the Indictment pursuant to 21 U.S.C. § 846 for conspiracy to distribute narcotics will be vacated. James' petition will, in all other respects, be denied.

 Background

 On November 21, 1983, Petitioners, together with their five co-defendants, were convicted of a variety of offenses arising from their respective roles in the distribution of large quantities of illegal drugs in the New York City area over an eleven year period. Petitioners were associated in an extensive narcotics enterprise called the "Council," a governing body of drug dealers that purchased and sold pure heroin, as well as cocaine, PCP and marijuana. Each Council member had his own narcotics business, employing subordinates to dilute and distribute the narcotics within his particular territory. Over the course of its violent history, the Council was responsible for eight murders of suspected informants.

 James and Fisher were active and prominent Council members. In fact, James was the organizing force behind the Council's formation in 1973. Morris, a former Tuckahoe, New York police officer, was not a member of the Council, but was responsible for providing the Council with information about suspected police informants and other assistance. Like their co-defendants, Fisher, James and Morris were convicted on all but one of the Counts in which they were named.

 Fisher was convicted of the following: conspiracy to violate narcotics laws in violation of 21 U.S.C. § 846, for which no sentence was imposed; operating a continuing narcotics enterprise ("CCE") in violation of 21 U.S.C. § 848, for which he was sentenced to life imprisonment without parole and ordered to pay a $ 100,000 fine; possession with intent to distribute and distributing heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), for which he was sentenced to fifteen years imprisonment, to run concurrent with the CCE sentence, and ordered to pay a $ 25,000 fine; conspiracy to violate the racketeering laws in violation of 18 U.S.C. § 1962(d), for which he was sentenced to twenty years imprisonment, to run consecutive to the sentences imposed on the other Counts, and ordered to pay a $ 12,500 fine; and a substantive RICO crime in violation of 18 U.S.C. § 1962(c), for which he was sentenced to twenty years imprisonment, to run consecutive to the sentences imposed on the other Counts, and ordered to pay a $ 12,500 fine. Fisher was found not guilty of 18 U.S.C. § 241, conspiracy to murder government witnesses.

 Morris was convicted of the following: conspiracy to violate narcotics laws in violation of 21 U.S.C. § 846, for which he was sentenced to fifteen years imprisonment and ordered to pay a $ 25,000 fine; possession with intent to distribute and distributing heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), for which he was sentenced to fifteen years imprisonment, to run concurrent with the narcotics conspiracy sentence, and ordered to pay a $ 25,000 fine; unlawfully carrying a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c)(2), for which he was sentenced to one year of imprisonment, consecutive to the sentences imposed on the other Counts; conspiracy to violate the racketeering laws in violation of 18 U.S.C. § 1962(d), for which he was sentenced fifteen years imprisonment, to run consecutive to the other sentences imposed, and ordered to pay a $ 12,500 fine; and a substantive RICO crime in violation of 18 U.S.C. § 1962(c), for which he was sentenced to twenty years imprisonment, to run consecutive to the sentences imposed on the other Counts, and ordered to pay a $ 12,500 fine. Morris was found not guilty of 18 U.S.C. § 241, conspiracy to murder government witnesses.

 James was convicted of the following: conspiracy to violate narcotics laws in violation of 21 U.S.C. § 846, for which no sentence was imposed; operating a continuing narcotics enterprise ("CCE") in violation of 21 U.S.C. § 848, for which he was sentenced to life imprisonment without parole and ordered to pay a $ 75,000 fine; possession with intent to distribute and distributing heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), for which he was sentenced to fifteen years imprisonment, to run concurrent with the CCE sentence, and ordered to pay a $ 25,000 fine; possession of cocaine in violation of 21 U.S.C. §§ 812, 844 for which he was sentenced to one year imprisonment, to run concurrent with the CCE sentence, and ordered to pay a $ 5,000 fine; receipt of a firearm by a felon in violation of 21 U.S.C. § 844 and 18 U.S.C. § 922(h), (2) for which he was sentenced to five years imprisonment, to run consecutive to the sentences imposed on the other Counts, and ordered to pay a $ 5,000 fine; conspiracy to violate the racketeering laws in violation of 18 U.S.C. § 1962(d), for which he was sentenced to fifteen years imprisonment, to run consecutive to the sentences imposed on the other Counts, and ordered to pay a $ 12,500 fine; and a substantive RICO crime in violation of 18 U.S.C. § 1962(c), for which he was sentenced to twenty years imprisonment, to run consecutive to the sentences imposed on the other Counts, and ordered to pay a $ 12,500 fine. James was found not guilty of 18 U.S.C. § 241, conspiracy to murder government witnesses.

 James, Fisher and Morris appealed their convictions and the convictions were unanimously affirmed. United States v. Thomas, 757 F.2d 1359 (2d Cir.), cert. denied, 474 U.S. 819 (1985), 479 U.S. 818 (1986)..

 Discussion

 Fisher and Morris

 Fisher's and Morris' arguments in support of their petitions are as follows. First, Fisher argues that in light of the Supreme Court's decision in Rutledge, one of his two convictions, the § 846 (conspiracy) conviction or the § 848 (CCE) conviction, must be vacated; Fisher sets forth various theories by which the Supreme Court directive that one of these sentences be vacated may benefit him. *fn1" Second, Fisher argues that all of his convictions must be vacated, and that a new trial must be granted, because hearsay testimony introduced by the government under Rule 804(b)(3) was inadmissible. Third, Fisher asserts that he has discovered new evidence which demonstrates that he did not sell heroin.

 A. Double Jeopardy

 The Double Jeopardy Clause of the Fifth Amendment guarantees that no person "shall ... be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Supreme Court has held that the Double Jeopardy Clause consists of the following three separate constitutional protections: 1) protection against a second prosecution for the same offense after conviction; 2) protection against a second prosecution for the same offense after acquittal; and 3) protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). At issue in this petition is solely the third type of protection afforded by the Double Jeopardy Clause -- protection against multiple punishments for the same offense.

 It is common for multiple charges to arise from the same act or series of acts. However, courts may not impose a greater punishment than was intended by the legislature, and it is presumed that if multiple statutory provisions proscribe the "same offense," a legislature did not intend to impose multiple punishments for the offense. Rutledge, 517 U.S. 292, 297; Missouri v. Hunter, 459 U.S. 359, 366, 74 L. Ed. 2d 535, 103 S. Ct. 673 (1983); Whalen v. United States, 445 U.S. 684, 691-92, 63 L. Ed. 2d 715, 100 S. Ct. 1432 (1980). To determine whether multiple prosecutions for a single act or series of acts violate the common law and constitutional protection against being punished twice for the same offense, courts apply the rule set forth in Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932): If "the same act or transaction constitutes a violation of two distinct statutory provision, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." Id.; Rutledge, 517 U.S. at 297.

 1. Fisher's Narcotics Conspiracy Conviction.

 At the time of Fisher's sentencing, this Court applied the Blockburger test to Fisher's narcotics conspiracy and CCE convictions. As the Court was aware at that time, "§ 846 is a lesser included offense of § 848 in the purest form." United States v. Young, 745 F.2d 733, 750 (2d Cir. 1984) cert. denied, 470 U.S. 1084 (1985); see also Rutledge, 517 U.S. at 306 (resolving definitively that a "guilty verdict on a § 848 charge necessarily includes a finding that the defendants also participated in a conspiracy violative of § 846; conspiracy is therefore a lesser included offense of ...


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