United States District Court, Southern District of New York
October 30, 2000
WALLACE RICE, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Milton Pollack, Senior District Judge.
Petitioner Wallace Rice has moved the Court to vacate his
continuing criminal enterprise ("CCE") conviction because the
Court failed to instruct the jury in accordance with Richardson
v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985
(1999). Richardson announced a new rule of criminal procedure.
On June 1, 1999, the United States Supreme Court issued its
decision in Richardson v. United States, declaring that the CCE
statute "requires jury unanimity in respect to each individual
`violation' [in the continuing series of violations]."
526 U.S. 813, 825, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). This rule
changed the law. Until Richardson, there was no requirement for
the jury to agree unanimously as to what violations comprised
Richardson was decided thirteen years after Petitioner's
conviction became final with the denial of his Petition for a
Writ of Certiorari in October of 1986. Thus, Petitioner claims —
as he must — that Richardson is entitled to retroactive effect
on collateral review. Teague v. Lane, 489 U.S. 288, 310, 109
S.Ct. 1060, 103 L.Ed.2d 334 (1989) holds that "new constitutional
rules of criminal procedure will not be applicable to those cases
which have become final before the new rules are announced."
A new rule of law is considered substantive if it has the
effect of legalizing certain conduct previously thought to be
illegal. See Bousley v. United States, 523 U.S. 614, 620, 118
S.Ct. 1604, 140 L.Ed.2d 828 (1998); Bilzerian v. United States,
127 F.3rd 237, 242 (2d Cir. 1997).
The rule of unanimity announced in Richardson does not
legalize conduct previously thought to be illegal. Indeed,
notwithstanding Richardson, it has always been illegal to
commit a series of violations of the narcotic's laws for the
purposes of the CCE statute, and juries have always been
instructed to find that series unanimously beyond a reasonable
doubt. Richardson merely affects the procedure under which
juries review the "continuing series" element of the CCE statute.
Rather than a substantive change in the law, the Richardson
decision is more accurately seen as a procedural rule under the
Bousley analysis — a rule that provides a procedure to improve
the accuracy of convictions under the CCE statute. See Bousley,
523 U.S. at 619, 118 S.Ct. 1604; see also Teague, 489 U.S. at
313, 109 S.Ct. 1060 ("accuracy-enhancing procedural rules" are
subject to the Teague doctrine).
Even if Richardson were applied retroactively, under the
facts of this case, the Court's failure to instruct the jury to
agree unanimously on each specific violation required to make up
the series for the
CCE conviction was harmless. There can be no question in this
case that the jury agreed unanimously (or was provided with more
than sufficient evidence to agree) on each component violation
for the series element of the CCE.
The Petitioner was actually convicted on two narcotics
violations — a substantive narcotics charge and a narcotics
conspiracy charge. Clearly, such convictions were unanimous, were
violations of the narcotic's laws and qualify as predicates under
the CCE statute. Moreover, the Petitioner took the stand and
admitted repeatedly and with vivid detail recounted how he
engaged in the narcotics distribution and trafficking business
from 1973 until 1977. It is clear beyond cavil that the jury
agreed unanimously on the requisite series of violations —
despite no instructions directing them to so find. Accordingly,
the Court's failure to instruct the jury with respect to
unanimity did not have a substantial or injurious influence on or
effect on the juries' verdict on the CCE charge and, thus, was
The Petitioner's motion to vacate his CCE conviction is denied.
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