United States v. Evan Callanan, Jr. Evan Callanan, Sr.

810 F.2d 544, 1987 U.S. App. LEXIS 1261

Opinions

WELLFORD, Circuit Judge.

This case concerns an appeal from the decision of the district court following a remand this court issued in United States v. Qaoud, 777 F.2d 1105 (6th Cir.1985).

The underlying facts of this case are set out fully in Qaoud. See 777 F.2d at 1107-10. For the purposes of this appeal we recite only the pertinent facts that defendants Evan Callanan, Jr. and Evan Callanan, Sr. were convicted by a jury, and this court affirmed the convictions under 18 U.S.C. §§ 1962(c) and 1962(d) of conspiracy to violate RICO and of violating a substantive provision of RICO. Callanan, Jr. received concurrent sentences of eight years each on the RICO charges and five years on other charges. Callanan, Sr. received concurrent sentences of ten years each on the RICO charges and five years on a mail fraud charge. Id. at 1108.

In Qaoud, this court remanded the case to the district court for the limited pujóse of determining whether the concurrent RICO sentences should be vacated in light of Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). On remand, Judge Gilmore ruled from the bench that Ball did not require the sentences in question to be vacated. The sole issue, therefore, is whether the concurrent sentences in this case for conspiracy and substantive charges under RICO are permissible.

In Ball v. United States, the Supreme Court addressed the issue whether concurrent sentences were permissible for convictions under two federal statutes that proscribed receiving and possessing a firearm shipped in interstate commerce. See 470 U.S. at 857, 105 S.Ct. at 1669. The Court’s analysis focused on whether Congress intended a defendant’s conduct to be punishable under both provisions. See id. at 861, 105 S.Ct. at 1671. To ascertain Congress’ intent, the Court applied the test announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932): “whether each provision requires proof of a fact which the other does not.” 470 U.S. at 861, 105 S.Ct. at 1671. See also United States v. Woodward, 469 U.S. 105,107,105 S.Ct. 611, 612, 83 L.Ed.2d 518 (1985); Albemaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981). The Court in Ball determined that proof of illegal receipt necessarily includes proof of illegal possession. 470 U.S. at 862, 105 S.Ct. at 1672. The Court also examined the legislative history and concluded that the provisions were not “directed to separate evils.” Id. at 864, 105 S.Ct. at 1673. The Blockburger test and the statutes’ legislative history thus convinced the Court that Congress did not intend duplicative punishment under these two provisions. Id. at 865, 105 S.Ct. at 1673.

Under Ball, therefore, we must first consider whether the different provisions of the statutes at issue in this case require proof of a fact which the other does not. We agree with Judge Gilmore’s determination that the conspiracy and substantive offense charges do require different proofs. The substantive RICO charge requires proof that defendants engaged in an enterprise that affected interstate commerce and that they committed two or more racketeering offenses. See 18 U.S.C. § 1962(c);¹ United States v. Sutton, 642 F.2d 1001, 1008 (6th Cir.1980), cert. denied sub nom. Elkins v. United States, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 995 (1981). These elements need not be proved to establish the offense of a criminal conspiracy. Similarly, the conspiracy charge requires proof of an agreement to engage in conduct that would establish a substantive RICO charge, see 18 U.S.C. § 1962(d); Sutton, 642 F.2d at 1017, which need not be proved to establish the substantive charge. The statutory definition of the § 1962(c) RICO offense does not contain an element of agreement. The definitions of “racketeering activity” and “pattern of racketeering activity,” components of § 1962(c), moreover, do not incorporate any element of agreement. See 18 U.S.C. § 1961(1), (5). The Blockburger test, therefore, indicates that concurrent sentences are permissible in this case. See also United States v. Castellano, 610 F.Supp. 1359, 1394-96 (S.D.N.Y.1985) (§§ 1962(c) and (d) are separate offenses under Blockburger test).

In addition to applying the Blockburger test, the Ball Court considered legislative history in determining congressional intent. See also United States v. Woodward, 469 U.S. 105, 108-09, 105 S.Ct. 611, 612, 83 L.Ed.2d 518 (1985); United States v. Sutton, 700 F.2d 1078, 1080 (6th Cir.1983) (appeal after remand, hereinafter “Sutton II”) (“Congressional intent is discerned through statutory language, legislative history, and the Blockburger rule.”) In discussing RICO’s purposes, the Sutton II court first quoted a portion of the legislative history as follows:

It is the purpose of this Act to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.

700 F.2d at 1080-81 (quoting Organized Crime Control Act of 1970, Statement of Findings and Purpose, 84 Stat. 922-923, reprinted in [1970] U.S.Code Cong. & Admin.News, p. 1073) (emphasis added). The Court also noted that section 904 of the same law elaborated: “(a) The provisions of this title shall be liberally construed to effectuate its remedial purposes.” Id. at 1081. From this background the court determined:

The clear legislative intent expressed concurrently with the enactment of RICO is to permit, perhaps even to encourage, courts to impose cumulative sentences for RICO offenses and the underlying crimes. Cumulative sentences are the “enhanced sanctions” which Congress deemed necessary to treat the spreading disease of organized crime. In fact, if cumulative convictions and sentences were disallowed by courts, Congress’ purpose to eradicate organized crime would be thwarted because the RICO penalties are in many cases lighter than penalties for underlying offenses.

700 F.2d at 1081. See also United States v. Rone, 598 F.2d 564, 571-72 (9th Cir. 1979), cert. denied sub nom. Little v. United States, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980) (Congress’ purposes thwarted unless sentences for RICO charge and predicate offense allowed to run consecutively).

Although Sutton II and Rone specifically addressed the question of consecutive sentences for a RICO charge and a predicate offense, Congress’ express purposes in enacting RICO suggest the same conclusion in this case concerning conspiracy to violate and actual violation of RICO proscriptions. Indeed, the Supreme Court has found in a comparable situation that “Congress intended to retain each offense as an ‘independent curb’ available for use in the strategy against organized crime.” Ian-nelli v. United States, 420 U.S. 770, 791, 95 S.Ct. 1284, 1296, 43 L.Ed.2d 616 (1975). Although Iannelli concerned conspiracy to violate and violation of a gambling provision under the Organized Crime Control Act of 1970, 18 U.S.C. §§ 371, 1955, we believe that the principle asserted in Ian-nelli is equally applicable to this case. The legislative history indicates that Congress intended that conspiracy to violate RICO and the acts involved in violation of the substantive RICO provision be separate offenses that do not merge for sentencing purposes.

Finally, Congress’ intent to allow punishment under both §§ 1962(c) and 1962(d) is shown by the fact that the two provisions are “directed to separate evils.” See United States v. Woodward, 469 U.S. 105, 109, 105 S.Ct. 611, 612, 83 L.Ed.2d 518 (1985); cf. Ball v. United States, 470 U.S. at 864, 105 S.Ct. at 1673 (considering the “separate evils” question but finding no separate evils in the statutes at issue). “The basic rationale of the law of conspiracy is that a conspiracy may be an evil in itself, independently of any other evil it seeks to accomplish.” Iannelli, 420 U.S. at 779, 95 S.Ct. at 1290 (quoting Dennis v. United States, 341 U.S. 494, 573, 71 S.Ct. 857, 899, 95 L.Ed. 1137 (1951) (Jackson, J., concurring)). By enacting a provision proscribing conspiracy to violate RICO, Congress addressed an evil separate and independent of the substantive § 1962(c) provision. United States v. Ohlson, 552 F.2d 1347, 1349 (9th Gir.1977); United States v. Castella-no, 610 F.Supp. 1359, 1393 (S.D.N.Y.1985). Because sections 1962(c) and 1962(d) are “directed to separate evils,” we conclude that Congress intended to permit concurrent sentences for conspiracy to violate RICO and substantive RICO violations.

The dissent has focused on the underlying activity in this case, bribery, which is one of the alternative “racketeering activities” defined in section 1961. See 18 U.S.C. § 1961(1). The dissent relies on Whalen v. United States, 445 U.S. 684,100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), and Pandelli v. United States, 635 F.2d 533 (6th Cir.1980), which indicate that courts must look to the specific offense at issue in a case concerning a statute with alternative elements. The dissent emphasizes the nature of a bribe as inherently including an agreement and argues that the conspiracy to fix cases, therefore, must be a lesser included offense of bribery. Focus on the nature of a bribe transaction, however, is misplaced. Section 1962(c) prohibits a “pattern of racketeering activity,” and proof of a pattern of bribes was the basis of defendants’ convictions. A pattern of racketeering activity, which by definition requires at least two acts, see 18 U.S.C. § 1961(5), is different from an isolated bribe or “agreement” to fix a case. Relying on Whalen and Pandelli to focus on bribery, therefore, is inappropriate in this case. The conspiracy conviction in this case was based on the agreement to conduct a pattern of racketeering activity, not a mere agreement inherent in the offer and acceptance of an isolated bribe. The conspiracy conviction, therefore, required proof of an element not required to prove the substantive charge, and the two offenses are not the “same offense” under Blockburger.

Even if we were to focus on the bribery element, however, this court has rejected the argument that conspiracy is a lesser included offense of bribery. See United States v. Finazzo, 704 F.2d 300, 305 (6th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983). The defendants in Finazzo argued that the very same agreement shown to prove bribery also proved conspiracy. That argument mistakenly focused on the evidence submitted at trial; the relevant inquiry examines the proof necessary to establish the statutory elements. Id. (citing Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975)). See also Pryor v. Rose, 724 F.2d 525, 529 (6th Cir.1984) (en banc). The Finazzo court then determined that because the bribery and conspiracy offenses each required “ ‘proof of a fact the other does not,’ the Blockburger test is satisfied.” 704 F.2d at 305. Even focusing on bribery, therefore, does not avoid the conclusion that the conspiracy and substantive offenses are not the same under Blockburger.

We disagree with the dissent’s position, set out in footnote 1, that the “historical Blockburger analysis” has been “rejected” by the Supreme Court. In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Chief Justice stated:

In Whalen v. United States, supra, we addressed the question whether cumulative punishments for the offenses of rape and of killing the same victim in the perpetration of the crime of rape was contrary to federal statutory and constitutional law. A divided court relied on Blockburger v. United States, 284 U.S. 299 [52 S.Ct. 180, 76 L.Ed. 306] (1932), in holding that the two statutes in controversy proscribed the “same” offense.

The opinion in Blockburger stated:

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, 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., at 304, 52 S.Ct. at 182.

In Whalen we also noted that Block-burger established a rule of statutory construction____

Id. at 366, 103 S.Ct. at 678. Again, Chief Justice Burger referred to a later case which quoted from, and adhered to, the Blockburger rule:

In Albemaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), we addressed the issue whether a defendant could be cumulatively punished in a single trial for conspiracy to import marihuana and conspiracy to distribute marihuana. There, in contrast to Whalen, we concluded that the two statutes did not proscribe the “same” offense in the sense that “ ‘each provision requires proof of a fact [that] the other does not.’ ” 450 U.S., at 339,101 S.Ct. at 1142, quoting Blockburger, supra, at 304, 52 S.Ct. at 182.

Missouri v. Hunter, 459 U.S. at 367, 103 S.Ct. at 678.

Finally, the relationship of Albemaz and Whalen, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1983), with Blockburger is set out:

Our analysis and reasoning in Whalen and Albemaz lead inescapably to the conclusion that simply because two criminal statutes may be construed to proscribe the same conduct under the Block-burger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rule requiring courts to negate clearly expressed legislative intent.

Missouri v. Hunter, 459 U.S. at 368, 103 S.Ct. at 679.

We have noted the importance of legislative intent, as evidenced in Iannelli, Whalen, Albemaz, and Hunter, that indicates in the instant case that the two statutory proscriptions in controversy are directed to separate evils and are essentially separate offenses. This conclusion is entirely consistent with our analysis and adherence to “the test articulated by the Supreme Court in Blockburger,” as set out in Finazzo, 704 F.2d at 305. In short, recent cases such as Ball, Hunter, and Finazzo clearly indicate that although Whalen and Pandelli require courts to focus on the particular offense at issue under a statute with alternative elements, the Blockburger test has not been rejected by the Supreme Court or this court. Because the Whalen and Pandelli approach is inapt in this case, a straightforward application of Blockburger is appropriate.

Both the Blockburger test and our independent evaluation of congressional purpose indicate that the concurrent sentences in this case are permissible. Accordingly, we AFFIRM the decision that the concurrent sentences imposed on the Callanans are valid.

Footnotes

1

. Section 1962(c) provides:

(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.

18 U.S.C. § 1962(c).