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MONSANTO v. U.S.

April 20, 2001

PETER MONSANTO, PETITIONER,
V.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Ward, District Judge.

  OPINION

Petitioner, Peter Monsanto, has moved to vacate His conviction pursuant to 28 U.S.C. § 2255 based on the Court's erroneous jury instruction concerning the crime of engaging in a continuing criminal enterprise. For the reasons hereinafter stated, petitioner's motion is denied and the petition is dismissed.*fn1

BACKGROUND

On October 14, 1987, the government filed an Indictment against Monsanto and others charging them with racketeering, murder, narcotics distribution, weapons possession, and tax evasion. of relevance to this motion are Counts One, Two, Three, and Four of the Indictment.

Count One charged Monsanto with participating in the affairs of a racketeering enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962 (c). This Count alleged that Monsanto committed several predicate racketeering acts, three of which were narcotics-related: Racketeering Act ("R.A.") 5, conspiracy to distribute heroin from in or about December 1981 up to and including the date of the filing of the indictment; R.A. 7, possession with intent to distribute heroin at 933 Sheffield Road, Teaneck, New Jersey; and R.A. 8, possession with intent to distribute heroin at 250 Gorge Road, Cliffside Park, New Jersey.

In addition, Count Two of the Indictment charged Monsanto with conspiring to participate in the affairs of a racketeering enterprise, or RICO conspiracy, in violation of 18 U.S.C. § 1962 (d). This Count incorporated by reference all of the predicate offenses alleged in Count One, including R.A. 5, 7, and 8.

Also relevant to this petition is Count Three, which charged Monsanto with engaging in a narcotics distribution conspiracy, in violation of 21 U.S.C. § 846. Several overt acts contained in Count Three alleged that Monsanto supplied heroin to various individuals who then distributed the heroin for resale. Overt Acts ("O.A.") 1 through 7 charged that Robert Cofer, Larry Caldwell, Arnold Lawson, Gary Simmons, Alex Simmons, Eddie Simmons, William Norris, Sedgwick Harvey, Lawrence Williams, and Barry Judd distributed heroin which they received from Monsanto.

Count Four of the Indictment charged Monsanto with operating a continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. § 848. The CCE charge also incorporated by reference the racketeering acts alleged in Count One and realleged in Count Two, as well as the narcotics distribution conspiracy alleged in Count Three.

Trial commenced on January 19, 1988 and lasted six months. The parties presented over one hundred witnesses and more than nine hundred exhibits. At the close of the evidence, the Court instructed the jury on the law for each count. With respect to Count Four, the CCE charge, the Court instructed the jury that in order to find Monsanto guilty of operating a CCE, it must find unanimously: (1) that Monsanto committed one or more violations of the narcotics laws; (2) that the narcotics offenses committed by Monsanto were part of a continuing series of violations of the narcotics laws; (3) that Monsanto undertook to commit this series of violations in concert with five or more persons either named or unnamed in the Indictment; (4) that Monsanto occupied the position of organizer, supervisor, or manager with respect to each of these five or more persons; and (5) that Monsanto obtained substantial income or resources from this continuing series of violations. See Tr. at 15, 554.*fn2

The Court did not instruct the jury that it had to unanimously agree on which narcotics violations comprised the "series of violations" under the second element of the CCE charge. However, the Court instructed the jury that, in determining whether Monsanto had engaged in a "series of violations," it could look to the narcotics violations charged in the Indictment, including the narcotics conspiracy charged in Count Three, as well as acts which were not charged in the Indictment, but which were proven by the government. See id. at 15, 557-558.

Monsanto was convicted on all counts in the Indictment. In finding Monsanto guilty on Count One, the jury found that the government proved that he had committed, among others, R.A. 5, conspiracy to distribute heroin from in or about December 1981 up to and including the date of the filing of the indictment, and R.A. 7, possession with intent to distribute heroin at 933 Sheffield Road, Teaneck, New Jersey. However, the jury found that the government had not proved R.A. 8, possession with intent to distribute heroin at 250 Gorge Road, Cliffside Park, New Jersey. In finding Monsanto guilty of Count Two, RICO conspiracy, the jury found that the government proved that he had conspired to commit all three narcotics-related racketeering acts, including R.A. 8.

On his direct appeal to the Second Circuit, Monsanto argued that the CCE charge was erroneous because, among other things, it did not require that the jury agree on which particular narcotics violations comprised the "series of violations" making up the second element of the crime. Although the Second Circuit did not directly address this argument, in addressing a different argument, the court stated that the government need not plead or obtain convictions on any of the eligible predicate offenses, but may instead simply prove at trial a continuing series of at least three felony offenses. See United States v. Simmons, 923 F.2d 934, 952 (2d Cir.), cert. denied, 500 U.S. 919 (1991), and cert. denied, 502 U.S. 943 (1991).

Monsanto filed the instant § 2255 petition on or about March 12, 1997, seeking to vacate his CCE conviction. On June 1, 1999, while Monsanto's § 2255 petition was pending, the Supreme Court decided Richardson v. United States, 526 U.S. 813 (1999) The Court held that "a jury in a federal criminal case brought under § 848 must unanimously agree not only that the defendant committed some `continuing series of violations' but also that the defendant committed each of the individual `violations' necessary to make up that `continuing series.'" Id. at 815. In light of Richardson, it became clear that this Court committed error in its jury instruction on the CCE count. The Court therefore granted the parties' request to file additional briefs.

Relying on Richardson, Monsanto argues that his CCE conviction must be vacated because this Court failed to instruct the jury that it had to agree unanimously as to the specific violations making up the "continuing series of violations" on the CCE count and that it had to find Monsanto guilty of those violations beyond a reasonable doubt. The government argues that Richardson should not be retroactively applied to this case and that, even if it were to apply, the error was harmless.

DISCUSSION

I. Retroactivity

In deciding whether the Richardson decision applies retroactively, the Court must determine whether the Supreme Court announced in Richardson a new rule of criminal procedure or one of substantive law. "This distinction between substance and procedure is an important one in the habeas context." Bousley v. United States, 523 U.S. 614, 620 (1998)

In Teague v. Lane, 489 U.S. 288 (1989), the Court held that a new rule of criminal procedure will not be given retroactive application unless the new rule satisfies one of two exceptions. See id. at 310. The rule will apply retroactively only if it "places `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,'" or could be considered a "watershed rul[e] of criminal procedure." Id. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971)).

However, Teague applies only to procedural rules, and thus, is inapplicable to substantive decisions in which the Supreme Court decides the meaning of a criminal statute enacted by Congress. See Bousley, 523 U.S. at 620. Supreme Court decisions "holding that a substantive federal criminal statute does not reach certain conduct . . . necessarily carry a significant risk that a defendant stands convicted of `an act that the law does not make criminal.`" Id. (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). Such substantive decisions are presumed to apply retroactively. See, e.g., United States v. Mandanici, 205 F.3d 519, 525 (2d Cir.), cert. denied, 121 S.Ct. 190, 148 L.Ed.2d 132 (2000) (stating that "a new rule of substantive criminal law is presumptively retroactive because a defendant may have been `punished for conduct that simply is not illegal'" (quoting Bilzerian v. United States, 127 F.3d 237, 242 (2d Cir. 1997), cert. denied, 527 U.S. 1021 (1999))).

In Davis v. United States, the Supreme Court held that, in determining whether a new substantive decision is to be applied retroactively, "the appropriate inquiry [is] whether the claimed error of law [is] `a fundamental defect which inherently results in a complete miscarriage of justice,' and whether `[i]t . . . . present[s] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'" Davis, 417 U.S. at 346 (quoting Hill v. United States, 368 U.S. 424, 428 (1962)) (third alteration in the original). Petitioner in Davis met this standard because the decision narrowed the criminal statute at issue so that petitioner could have been convicted for conduct which was not illegal. See id. at 346-47.

As the Third Circuit Court of Appeals recognized, "[t]he facts of Davis present the paradigm of a case involving a new substantive criminal decision. In Davis, as in nearly all the decisions in which courts have retroactively applied a new substantive criminal decision, the defendant's conviction itself was potentially invalid due to an intervening change in law." United States v. Woods, 986 F.2d 669, 677 (3d Cir.), cert. denied, 510 U.S. 826 (1993). However, whether the new decision decriminalizes conduct is not the standard set forth in Davis. There is nothing in Davis, or in any other precedent that this Court is aware of, to suggest that a new decision is substantive only if it results in a conviction for an act that the law does not make criminal. See, e.g., United States v. Tayman, 885 F. Supp. 832, 842 (E.D. Va. 1995) ("A substantive rule may establish that the defendant was innocent or that he should not have been convicted of a crime, but not all substantive rules do so.").

Turning to the Richardson decision, in framing the question presented, the Court stated:

[W]e must decide whether the statute's phrase "series of violations" refers to one element, namely a "series," in respect to which the "violations" constitute the underlying brute facts or means, or whether those words create several elements, namely the several "violations," in respect to each of which the jury must agree unanimously and separately. . . . If the statute creates a single element, a "series," in respect to which individual violations are but the means, then the jury need only agree that the defendant committed at least three of all the underlying crimes the Government has tried to prove. The jury need not agree about which three. On the other hand, if the statute makes each "violation" a separate element, then the jury must agree unanimously about which three crimes the defendant committed.

526 U.S. at 817-18 (emphasis added). The Court also found that the word "violations" as used in the CCE statute has a "legal ring." Id. at 818. The Court said:

A "violation" is not simply an act or conduct; it is an act or conduct that is contrary to law. . . . To hold that each "violation" here amounts to a separate element is consistent with a tradition of requiring juror unanimity where the issue is whether a defendant has engaged in conduct that violates the law.

Id. at 818-19 (emphasis added)

The Court thus held that each narcotics violation making up the "continuing series of violations" is a separate element of the CCE crime that, consistent with long-standing principles of criminal procedure, must be found by a jury unanimously beyond a reasonable doubt. If each violation were not an "element" of the crime, the Court would not have held that each violation had to be found by a unanimous jury beyond a reasonable doubt. See, e.g. In re Winship, 397 U.S. 358, 364 (1970) (holding that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged"). In reaching its conclusion, therefore, the Supreme Court clearly redefined the substance of the CCE crime, and not the procedure by which juries reach their verdict.

In addition, Monsanto's claim meets the standard for retroactivity set forth in Davis. Monsanto argues that the jury would not have convicted him on the CCE crime had this Court charged the jury in a manner consistent with Richardson. Assuming for present purposes that Monsanto is correct, the error results in a complete miscarriage of justice and presents exceptional circumstances warranting the relief afforded by habeas corpus. Monsanto's interest in having his claim reviewed is especially compelling because it was his legal position, raised but not addressed on direct appeal, that was vindicated in Richardson. See Ianniello v. United States, 10 F.3d 59, 62-3 (2d Cir. 1993)

The Court therefore finds that Richardson announced a new substantive rule of law which applies retroactively. Accord United States v. Lopez, ___ F.3d ___, 2001 WL 388092, at *3 (5th Cir. Apr. 16, 2001); Lanier v. United States, 220 F.3d 833, 838 (7th Cir.) cert. denied, 121 S.Ct. 312, L.Ed.2d 250 (2000); Murr v. United States, 200 F.3d 895, 905-06 (6th Cir. 2000); Benevento v. United States, 81 F. Supp.2d 490, 492-93 (S.D.N.Y. 2000). But see Rice v. United States, 118 P. Supp. 2d 451, 452 (S.D.N.Y. 2000) (holding that Richardson is not retroactive). ...


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