KENNETH LINN, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-1517

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Questions presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-19a) is reported
at 889 F.2d 1369.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 27,
1989.  The petition for rehearing was denied on December 28, 1989.
The petition for a writ of certiorari was filed on March 28, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the district court should have instructed the jury that,
in order to convict petitioner of conducting a continuing criminal
enterprise, it would have to agree unanimously on the identities of
five individuals whom he supervised.

   2. Whether the district court should have instructed the jury that,
in determining whether petitioner supervised at least five
individuals, it could not consider the two attorneys who assisted
petitioner's drug-trafficking enterprise, because they were not listed
among the alleged subordinates in the bill of particulars.

   3. Whether the district court should have given a jury instruction
limiting the individuals who could be considered as petitioner's
subordinates to those whom the court allowed the government to
identify in its closing argument.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Eastern District of Louisiana, petitioner was convicted on one count
of conducting a continuing criminal enterprise (CCE), in violation of
21 U.S.C. 848;  /1/ nine counts of possessing cocaine with intent to
distribute it, in violation of 21 U.S.C. 841(a)(1);  one count of
conspiring to possess cocaine with intent to distribute it, in
violation of 21 U.S.C. 846;  and seven counts of using a telephone to
facilitate a drug offense, in violation of 21 U.S.C. 843(b).  He was
sentenced to 25 years' imprisonment.  The court of appeals affirmed.
Pet. App. 1a-19a.

   1. The evidence at trial showed that petitioner operated a cocaine
trafficking business.  Pet. App. 4a.  Petitioner obtained the cocaine
from three independent sources.  The primary source was identified
only as "Chico." The other two sources were Leo Rodesta, who was also
convicted of operating a CCE, and Justin Durbin.  Ibid.  Petitioner,
sometimes using the alias "Robert Falino," operated his drug business
largely through two corporations, Middle Eastern Ventures and
International Marketing & Development.  Middle Eastern Ventures owned
the house where petitioner weighed, tested, cut, and packaged the
cocaine for distribution.  Both corporations held post office boxes
where proceeds from sales were received, as well as safety deposit
boxes that were used to store cash and cocaine.  Id. at 6a.

   Petitioner set his own prices and decided which of his buyers would
be "fronted" the cocaine and which would be required to pay in
advance.  Pet. App. 5a.  Occasionally, petitioner arranged to send
cocaine to the buyer via express mail.  The buyers included William
Burns, Robert Collins, Mike Rouperich, Michael Colvin, Nick Popich,
and Justin Durbin.  Id. at 4a-5a.

   Petitioner was assisted in his distribution scheme by Flo Burke,
his girlfriend, and Charles Brazel.  Burke served as petitioner's
messenger, often picking up packages of money sent by buyers.  Brazel
acted as a go-between, arranging for petitioner to ship cocaine to a
post office box for buyer Colvin, and making arrangements for Colvin
to pay petitioner.  Brazel also was responsible for putting pressure
on Colvin when Colvin failed to pay according to plan.  Pet. App.
5a-6a.

   Petitioner engaged the services of two attorneys, Frank Diaz and
Robert Dane Smith, as well as a money launderer, Rudolph Keys, to
assist in hiding and laundering the proceeds of his drug operation.
Keys assisted petitioner in bringing $320,000 in cash out of the
United States and into the Turks & Caicos Islands.  Eventually, the
money was transferred back to the United States and used to buy a
residence in California.  Attorney Smith's name appeared on documents
relating to a safety deposit box used to store cocaine and cocaine
proceeds.  Attorney Diaz, who had an interest in the Hemisphere
National Bank in Miami, agreed to allow petitioner to deposit large
sums of money into an account at that bank without filing notification
forms with the IRS.  Diaz also held a power of attorney that allowed
petitioner to gain access to a post office box for receipt of cocaine
payments.  Pet. App. 6a-8a.

   2. Prior to trial, petitioner moved for a bill of particulars
specifying the individuals he was alleged to have supervised.  The
government supplied a list of names, not including attorneys Diaz and
Smith.  During trial, the government introduced evidence concerning
the activities of Diaz and Smith.  Petitioner did not object to the
admission of that evidence, nor did he request a limiting instruction.
 Pet. App. 8a-9a.

   Prior to closing argument, petitioner filed three in limine
motions.  First, he requested that the government be instructed not to
argue that he supervised any of the individuals listed in the bill of
particulars, except for two.  Second, petitioner requested that the
court direct the government not to argue that petitioner supervised
Diaz and Smith.  Third, petitioner requested the court to direct the
government to name in its summation all those persons whom it
contended petitioner had supervised.  The court granted the second and
third motions, and granted the first motion in part by limiting the
government's argument to only 10 of the individuals identified in the
bill of particulars.  But the district court denied petitioner's
request for an instruction limiting the jury to consideration of those
10 individuals as possible subordinates for purposes of the CCE count.
 Pet. App. 10a-11a.

   4. On appeal, petitioner contended, first, that by failing to
prohibit the jury from considering Diaz and Smith as petitioner's
subordinates, the court caused a prejudicial variance from the bill of
particulars.  In rejecting that claim, the court explained that a bill
of particulars "does not create in the defendant an entitlement (to)
an instruction reflecting the contents of the bill of particulars."
Pet. App. 13a.  Although the court expressed doubt that petitioner was
surprised by the alleged variance, it found it unnecessary "to peer
into (petitioner's) psyche." Id. at 15a.  Rather, the court of appeals
concluded that any variance from the bill of particulars was harmless
because (1) the district court had granted petitioner's motion to
prevent the government from arguing in its summation that Diaz and
Smith could be included among the five or more persons petitioner
supervised;  (2) the defense had itself in closing argument itemized
the persons who could be considered as subordinates;  (3) the
government had offered five names to the jury, not including Diaz or
Smith;  and (4) the evidence was sufficient to show that petitioner
supervised those five.  Id. at 15a-16a.

   The court of appeals also rejected petitioner's contention that the
district court should have required the jury to agree unanimously on
the identity of each of the five subordinates.  The court reasoned
that the CCE statute "does not make the identity of the five
subordinates important since (it) is directed against all enterprises
of a certain size." Pet. App. 19a.  The court concluded that, "(s)o
long as the jurors unanimously agree that the defendant supervised,
organized, or managed any five persons, this element of a CCE
violation is satisfied." Ibid.

                               ARGUMENT

   1. Petitioner contends (Pet. 49-52) that the district court should
have instructed the jury that, in order to convict him on the CCE
count, it must agree unanimously on the identity of each of the five
individuals whom he supervised.  Every court of appeals that has
addressed this issue has declined to require such agreement.  See
United States v. Jackson, 879 F.2d 85, 86-90 (3d Cir. 1989);  United
States v. Tarvers, 833 F.2d 1068, 1073-1075 (1st Cir. 1987);  United
States v. Markowski, 772 F.2d 358, 364 (7th Cir. 1985), cert. denied,
475 U.S. 1018 (1986).  Cf. United States v. Raffone, 693 F.2d 1343,
1347-1348 (11th Cir. 1982) (absent a request to do so, district
court's refusal to give such an instruction not plain error), cert.
denied, 461 U.S. 931 (1983).  In Tarvers, the First Circuit approved a
jury instruction expressly stating that the jurors did not have to
agree unanimously on the subordinates' identities.  833 F.2d at 1074.

   The courts of appeals correctly recognize that the CCE statute is
concerned with the size of the criminal enterprise, not the identities
of the subordinates supervised by the defendant.  See Markowski, 772
F.2d at 364.  The purpose of the "five subordinate" element of the CCE
offense is to establish that "the organization in which the defendant
played a leadership role was sufficiently large to warrant the
enhanced punishment provided by the * * * statute." Jackson, 879 F.2d
at 88.  Accordingly, the issue for the jury is not the identity of
each of the subordinates, but simply whether the defendant exercised
"the requisite degree of supervisory authority over a sizeable
enterprise." Id. at 88-89.  Requiring the jury to agree unanimously on
the identities of each of the subordinates would be contrary to the
principle that jurors need not agree on the "specific fact(s)
underlying an element" of a crime so long as they reach a consensus on
the element itself.  Tarvers, 833 F.2d at 1074.  If unanimity were
required as to the identities of the subordinates in a CCE
prosecution, then "there would be no principled reason not to require
(a unanimity) instruction as to virtually every factual element in any
conspiracy count, including the identities of the co-conspirators and
the overt acts." 879 F.2d at 88.

   Petitioner's reliance on United States v. Echeverri, 854 F.2d 638,
643 (3d Cir. 1988), is unavailing.  In Echeverri, the Third Circuit
held that where, in proving the "continuing series of violations"
element of a CCE offense, the government introduced evidence tending
to show numerous alleged violations, any three of which could have
been the focus of a particular juror, the district court's general
unanimity instruction was insufficient.  854 F.2d at 642.  Whatever
the merits of that decision, it does not support petitioner's argument
here.  In United States v. Jackson, supra, the Third Circuit expressly
held that juror unanimity is not required as to the identities of the
five subordinates, and distinguished Echeverri.  As the Jackson court
explained, "(t)he failure to give a specific unanimity charge or
(instruction) in * * * Echeverri left open the possibility that (the)
named defendants could have been convicted without substantial
agreement by the jurors as to what criminal acts they performed." 879
F.2d at 89.  "In contrast," the court continued, "precise details such
as the identities of the underlings are not an essential element of
the CCE offense but merely historical facts as to which the jurors
could have disagreed without undermining their substantial agreement
as to the ultimate and essential fact of whether the requisite size
and level of control existed." Ibid.

   2. Next, petitioner contends (Pet. 56-60) that the district court
should have instructed the jury that it could not consider attorneys
Diaz and Smith in determining whether petitioner supervised at least
five individuals, because the two attorneys were not listed by the
government as potential subordinates in its bill of particulars.  As
an initial matter, petitioner failed to preserve this claim at trial
by neglecting to request an instruction specifically disqualifying
Diaz and Smith from consideration as potential subordinates.  /2/ See
Pet. App. 13a n.4.  In any event, the government's failure to list
Diaz and Smith in the bill of particulars did not disqualify them from
consideration as potential subordinates.  The purposes of a bill of
particulars are to minimize surprise at trial and to aid the defendant
in preparing his defense.  United States v. Burt, 765 F.2d 1364, 1367
(9th Cir. 1985);  United States v. Johnson, 575 F.2d 1347, 1356 (5th
Cir. 1978), cert. denied, 440 U.S. 907 (1979).  In the absence of
surprise or prejudice, the courts of appeals have held that "there is
no absolute requirement that the government name more than five
supervisees, or even that the supervisees be identified at all." Burt,
765 F.2d at 1367.  See also United States v. Zanzucchi, 892 F.2d 56,
58 (9th Cir. 1989);  United States v. Rosa, 891 F.2d 1063, 1067 (3d
Cir. 1989);  United States v. Hawkins, 661 F.2d 436, 451-452 (5th Cir.
1981), cert. denied, 456 U.S. 991 (1982).  Here, petitioner makes no
effort to demonstrate surprise or prejudice stemming from the failure
to name Diaz and Smith in the bill of particulars.  The court of
appeals observed that petitioner failed to object to the evidence
concerning Diaz and Smith when it was introduced, and expressed doubt
that the alleged variance caused petitioner any surprise.  Pet. App.
15a.  In addition, any error in the district court's failure to
instruct the jury that Diaz and Smith could not be considered as
potential subordinates was harmless.  In closing argument, both
defense counsel and the government made use of a chart listing the
persons who could be considered as potential subordinates.  The names
of Diaz and Smith were not listed on the chart.  Pet. App. 16a.
During its closing argument, the government suggested five supervisees
to the jury, not including Diaz or Smith.  Ibid.  And, as the court of
appeals held (id. at 16a-17a), the evidence supported a determination
that petitioner supervised at least five underlings other than the two
attorneys.  In these circumstances, petitioner was not prejudiced by
any possible variance between the bill of particulars and the proof at
trial.  Id. at 15a-16a.

   3. Finally, petitioner contends (Pet. 52-56) that the district
court should have given an instruction limiting the jury to
considering as possible subordinates only those individuals whom the
court allowed the government to mention in its closing argument.
Petitioner argues that such an instruction was necessary because the
district court, in limiting the number of alleged subordinates the
government could identify, held that the evidence was insufficient to
show that he supervised anyone else.  In fact, the district court did
not so hold.  In response to petitioner's motion that the government
be barred from arguing that petitioner supervised any of the
individuals named in the bill of particulars, except for two, the
court asked government counsel on whom it intended to rely for the
five subordinates.  When the government listed ten individuals, the
court ordered the government to confine itself in closing argument to
identifying only those ten.  11 Tr. 6-10.  The district court did not
hold that the evidence of supervision was insufficient as to any other
possible subordinate.  Accordingly, petitioner is incorrect in arguing
that the district court's restriction on the government's closing
argument necessitated a corresponding instruction to the jury.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   JOEL M. GERSHOWITZ

      Attorney

   JULY 1990

   /1/ Section 848(c) of Title 21, provides in part that:

         a person is engaged in a continuing criminal enterprise if --

         (1) he violates any provision of this subchapter or
      subchapter II of this chapter the punishment for which is a
      felony, and

         (2) such violation is a part of a continuing series of
      violations of this subchapter or subchapter II of this chapter
      --

         (A) which are undertaken by such person in concert with five
      or more other persons with respect to whom such person occupies
      a position of organizer, a supervisory position, or any other
      position of management, and;

         (B) from which such person obtains substantial income or
      resources.

   /2/ Petitioner sought an instruction limiting the individuals who
could be considered as subordinates to the 10 persons, not including
Diaz and Smith, whom the court allowed the government to identify in
its summation.  But petitioner never suggested that the instruction
was needed on the ground that Diaz and Smith were not listed in the
bill of particulars.  11 Tr. 128, 170-171.