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