1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-25-1998

United States v. Riddick

Precedential or Non-Precedential:

Docket 97-1367,97-1433

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Recommended Citation

"United States v. Riddick" (1998). 1998 Decisions. Paper 235.

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Filed September 25, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 97-1367 and 97-1433 

UNITED STATES OF AMERICA, 

 Appellant in No. 97-1433, 

v. 

HARRY LEE RIDDICK, JR., 

Harry Lee Riddick, 

 Appellant in No. 97-1367. 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No.: 94-cr-00159-1) 

Argued July 20, 1998 

Before: STAPLETON and ROSENN, Circuit Judges, 

and RESTANI, Judge* 

(Filed September 25, 1998) 

 Glennis L. Clark, Esquire (argued) 

 532 Walnut Street 

 Allentown, Pennsylvania 18101 

 Attorney for Appellant in 

 No. 97-1367. 

_________________________________________________________________ 

* Honorable Jane A. Restani, Judge, United States Court of International 

Trade, sitting by designation. 
 Michael R. Stiles, Esquire 

 United States Attorney 

 Robert E. Courtney, III, Esquire 

 Deputy United States Attorney 

 Walter S. Batty, Jr., Esquire 

 Assistant United States Attorney 

 Barbara L. Miller, Esquire (argued) 

 Assistant United States Attorney 

 615 Chestnut Street, 

 Suite 1250 

 Philadelphia, Pennsylvania 19106 

 Attorneys for Appellant in 

 No. 97-1433. 

OPINION OF THE COURT 

RESTANI, Judge. 

Harry Lee Riddick, Jr. appeals his conviction following a 

jury trial. Riddick raises multiple claims including that 

there was a variance between the single conspiracy charged 

and the evidence produced at trial, there was insufficient 

evidence to support his continuing criminal enterprise 

("CCE") conviction, the Government both improperly 

disclosed and presented misleading grand jury testimony, 

the court erred in denying Riddick's suppression motion, 

and the Government conducted an unauthorized wiretap. 

The court affirms the conviction. 

The Government cross-appeals Riddick's sentence to a 

term of 33 years on the CCE count. The Government 

contends that the district court erred in assigning Riddick 

an offense level of 42 based on the United States 

Sentencing Commission, Guidelines Manual, S 2D1.5 (Nov. 

1995) (hereinafter "USSG"), the guideline applicable to his 

CCE conviction, even though USSG S 2D1.2, the guideline 

applicable to his conviction for distribution of cocaine near 

a school, required a higher offense level of 43 and a 

mandatory life sentence. The court vacates the sentence 

and remands for resentencing.1 

_________________________________________________________________ 

1. Because a mandatory life sentence is required on the school count, 

the court does not reach the issue of whether the district court erred in 

refusing to sentence Riddick to the statutorily mandated term of life in 

prison for his CCE conviction as required by 21 U.S.C. S 848(b). 

 2 
Factual Background 

This case began with an indictment against twenty three 

defendants who engaged in a drug distribution conspiracy 

in Pennsylvania from 1989 to 1994. The Government filed 

a superseding indictment in July 1994 against the original 

defendant and co-defendants, including Riddick. The

indictment charged Riddick with one count of engaging in 

a continuing criminal enterprise (21 U.S.C. S 848(a)), one 

count of conspiring to distribute more than five kilograms 

of cocaine (21 U.S.C. S 846), thirteen counts of distributing 

cocaine in or near a school (21 U.S.C. S 860(a)), and one 

count of distribution of cocaine (21 U.S.C. S 841(a)(1)). 

On February 6, 1996, a jury convicted Riddick on all 

counts.2 Following a sentencing hearing, the court found 

Riddick's CCE involved in excess of 150 kilograms of 

cocaine. The court based this finding on the Government's 

calculation that Riddick was responsible for in excess of 

350 kilograms, the probation officer's calculation which was 

in excess of 250 kilograms, and the court's own detailed 

assessment of the trial evidence, including evidence of the 

length of time of the conspiracy, the suppliers, the sellers, 

and the amount of cocaine distributed each week. 

The Government argued that Riddick should be 

sentenced under the Sentencing Guideline section resulting 

in the highest offense level within the group of counts. The 

Government reasoned that here, the conviction for 

distribution of cocaine near a school, rather than the 

conviction for operating a CCE, provided the higher offense 

level and life imprisonment. Moreover, the Government 

argued that the court was not precluded from sentencing 

Riddick on the distribution near a school counts because 

that offense is not a lesser included offense of the CCE 

count. The district court rejected this argument and held 

that "if you charge . . . continuing criminal enterprise, . . . 

that offense is so odious and so severe that if the

Government secures a conviction on that offense, then the 

sentence should be imposed on that offense, even if it [is] 

not technically a lesser included offense." 

_________________________________________________________________ 

2. Any facts relevant to Riddick's appeal of his conviction are discussed 

in Section I. 

 3 
Thus, the court imposed a sentence of 33 years on the 

CCE count. The district court did not dismiss the 

remaining counts and did not sentence Riddick on them. 

This appeal followed. 

Jurisdiction 

The district court exercised jurisdiction pursuant to 18 

U.S.C. S 3231 (1994) because the case involved offenses 

against the laws of the United States. This court has 

jurisdiction of appeals from all final decisions of the district 

court pursuant to 28 U.S.C. S 1291 (1994). In addition, this 

court has jurisdiction over an appeal by the Government for 

review of a final sentence pursuant to 18 U.S.C. S 3742(b) 

(1994). 

Discussion 

I. 

A. Variance 

Riddick claims that there was a prejudicial variance 

between the indictment and the trial evidence because he 

and co-defendant Shannon Riley were charged as members 

of a single conspiracy, but the trial evidence showed that 

they were members of separate conspiracies. It is 

undisputed that the indictment charged that Riddick, and 

all of his co-defendants including Shannon Riley, were part 

of a single conspiracy to distribute more than five kilograms 

of cocaine using Phill's Bar and Grill, Allentown, as a 

headquarters and safe haven for drug dealing. Thus, the 

only remaining question is whether the jury properly found 

the existence of a single conspiracy. The existence of a 

single conspiracy is a finding of fact that must be sustained 

if, when viewed in the light most favorable to the 

government, there is substantial evidence to support that 

finding. United States v. Smith, 789 F.2d 196, 200 (3d Cir. 

1986). 

The court finds that the Government presented 

substantial evidence supporting the jury's finding of a 

single conspiracy. The trial evidence showed that Riddick 

 4 
and Riley closely cooperated and consulted each other to 

protect Riddick's ongoing cocaine operation. They supplied 

each other with information about law enforcement 

investigations. Riley used the "safe haven" that Riddick 

created at Phill's Bar and Grill to sell cocaine, which she 

was permitted to do only because she was associated with 

Riddick. Thus, there was no variance between the 

indictment and the evidence, both of which show a highly 

interdependent group of sellers who shared a unity of 

purpose and who were led by Riddick. 

B. CCE Conviction 

Riddick claims that there was insufficient evidence to 

support his conviction for operating a continuing criminal 

enterprise because the Government's evidence showed that 

Riddick supervised only two "runners," notfive or more 

persons as required by 21 U.S.C. S 848(c). 3 The court 

reviews the sufficiency of the evidence in the light most 

favorable to the government and must credit all available 

inferences in favor of the government. United States v. 

Dickens, 695 F.2d 765, 779 (3d Cir. 1983). 

The court finds that the Government presented sufficient 

evidence to support Riddick's conviction for operating a 

CCE. The trial testimony shows that Riddick controlled 

more than five couriers and sellers. Riddick hired sellers, 

set daily guaranteed wages for sellers, set cocaine prices, 

provided pagers, and numerical identifier codes to his 

sellers, posted bail for arrested sellers, and obtained 

confidential police information to protect sellers. Riddick 

stationed certain sellers at Phill's Bar & Grill, where they 

had the right to sell cocaine. Other sellers sold door to 

door. Therefore, the testimony showed that Riddick had 

supervised numerous sellers in a unified drug ring.

_________________________________________________________________ 

3. Riddick also claims that the district court improperly admitted 

evidence of Nigel McFarlane's dealings with Dominican and Colombian 

drug dealers as "other acts" evidence relating to Riddick's own conduct. 

Riddick fails to cite any part of the trial record or to specify what part 

of 

McFarlane's testimony was allegedly objectionable. Thus, this claim is 

without merit. 

 5 
C. Grand Jury Testimony 

Riddick appeals the district court's denial of his motion 

for a new trial by raising two arguments regarding grand 

jury testimony. Riddick claims that the contents of a 

newspaper article published six weeks before Riddick was 

indicted showed that confidential grand jury testimony by 

government witness Nigel McFarlane was leaked to the 

press in violation of Fed.R.Crim.P. 6(e). The district court's 

denial is reviewed for abuse of discretion. United States v. 

Gilsenan, 949 F.2d 90, 95 (3d Cir. 1991). This argument is 

without merit as Riddick has failed to cite any part of 

McFarlane's grand jury testimony to support his claim. 

Second, Riddick claims that the Government presented 

misleading testimony to the grand jury or withheld 

exculpatory testimony from the grand jury. All of the 

"examples" cited by Riddick were refuted by the actual 

transcripts of the grand jury proceedings. Thus, this 

argument is also without merit. 

D. Motion to Suppress Evidence 

Riddick also claims that the district court erred in 

denying his motion to suppress evidence from the 1994 

search of his home at 1106 1/2 Tilghman Street, on the 

grounds that: (1) the warrant contained stale facts, (2) the 

warrant failed to list with particularity the items to be 

seized, and (3) the agents seized items from 1108 Tilghman 

Street, a location not listed in the warrant. Riddick did not 

raise the first two claims in his suppression motion and 

therefore the district court's denial is reviewed for plain 

error. See Fed.R.Crim.P. 52(b). 

Riddick's first two claims are without merit. The warrant 

lists the items to be seized with sufficient specificity. 

Moreover, the information in the warrant was not stale; it 

showed an entrenched ongoing five-year drug operation in 

which Riddick frequently used his home to conduct cocaine 

transactions, and in which the most recent drug sale by 

one of his employees occurred only six days before the 

warrant was executed. 

As for Riddick's third claim, the court reviews the district 

court's denial of the motion to suppress for "clear error as 

 6 
to the underlying facts, but exercise[s] plenary review as to 

its legality in light of the court's properly found facts." 

United States v. Inigo, 925 F.2d 641, 656 (3d Cir. 1991). 

The district court did not err in denying Riddick's motion to 

suppress all evidence seized during an August 12, 1994, 

search of his residence. Riddick failed to substantiate his 

claim that Government agents improperly searched an

adjoining property. Rather, the suppression hearing

testimony showed that the agents confined their search to 

the premises identified by the street address in the warrant.4 

In addition, Riddick failed to show that the Government 

used any item seized from that space against him at trial, 

rendering any error harmless. 

E. Illegal Monitoring of Conversations 

Riddick claims that the district court erred in denying his 

motion to suppress all electronic surveillance on two 

grounds. We review the district court's factual findings for 

clear error and exercise plenary review of the legal issues 

involved. Inigo, 925 F.2d at 656. First, he argues that the 

government illegally intercepted his telephone conversation 

before obtaining a court order on December 10, 1993, 

authorizing surveillance. Riddick has failed to produce any 

credible evidence of Government misconduct. Rather, the 

Government's alleged premature monitoring of 

conversations consisted solely of information from courtauthorized pen registers5 on Riley's telephone, which 

showed a clear pattern of calls to the pagers and telephones 

of co-conspirators such as Riddick. The pen registers also 

showed that after dialing a telephone or pager number, the 

caller then entered certain additional numbers indicating 

_________________________________________________________________ 

4. Riddick had modified the third floor of 1106 1/2 Tilgham Street, 

expanding it into space formerly belonging to 1108 Tilgham Street. 

Riddick's alterations, however, permanently made the extra space part of 

1106 1/2 Tilgham by eliminating access to the bedroom from 1108 

Tilgham. Therefore, the agents properly searched the space under the 

authority of the warrant. 

5. A pen register is a "device which records or decodes electronic or 

other 

impulses which identify the numbers dialed or otherwise transmitted on 

the telephone line to which such device is attached." 18 U.S.C. S 3127 

(1994); see also In re Grand Jury Proceedings, 654 F.2d 268, 277 n.13 

(3d Cir. 1981). 

 7 
the price, drug quantity, or code to identify the customer.6 

Second, Riddick alleges that the Government intercepted a 

call on December 14, 1993, originating on Riddick's mobile 

phone without court authorization. The evidence shows, 

however, that the Government monitored the telephone call 

as part of the court-authorized wiretap of Riley's home 

telephone. The Government produced direct testimony

about the monitoring of this call as part of the Riley 

wiretap, and the original pen register tape showing that call 

originated from Riley's home telephone. 

As none of Riddick's contentions have merit, we affirm 

the conviction. 

II. 

A. Sentencing for Distribution of Cocaine Near 

 a School 

The Government argues that the district court erred by 

refusing to sentence Riddick pursuant to USSG S 2D1.2, 

the Sentencing Guideline applicable for drug offenses 

occurring near a school.7 Section 2D1.2 should have been 

applied, the Government argues, because the Sentencing 

Guidelines require the use of the highest offense level 

within a group of counts. The standard of review of the 

district court's interpretation and application of the 

_________________________________________________________________ 

6. There were recordings made prior to December 1993, but they were 

made with the consent of one of the parties to the conversation and 

Riddick has not addressed these specifically. 

7. Riddick argues that the Government has waived its right to appeal the 

court's failure to apply USSG S 2D1.2. Riddick relies on the 

Government's statement at the sentencing hearing, that regardless of 

whether the court sentenced Riddick under the CCE statute or the 

conspiracy statute the end result would be a life sentence, as evidence 

that the Government did not raise this guideline provision as an 

alternative sentencing option before the district court. 

This argument is without merit. At the conclusion of the sentencing 

hearing the district court stated "[t]he Government urges that the counts 

involving distribution near a school are not lesser included offenses to 

the continuing criminal enterprise count, and therefore, I would have the 

option . . . to sentence to the higher amount," suggesting quite clearly 

that the Government raised the issue below. 

 8 
Sentencing Guidelines is plenary. United States v. Hallman, 

23 F.3d 821, 823 (3d Cir. 1994). The Government's 

argument is meritorious. 

Section 3D1.2(d) of the Sentencing Guidelines states that 

multiple counts "involving substantially the same harm 

shall be grouped together into a single Group. Counts 

involve substantially the same harm . . . when the offense 

level is determined largely on the basis of . . . the quantity 

of a substance involved." USSG S 3D1.2(d). Offenses

covered by the USSG S 2D1.2 (distribution near a school) 

and USSG S 2D1.5 (continuing criminal enterprise offenses) 

are to be grouped together. USSG S 3D1.2(d). Moreover, in 

cases of grouping under S 3D1.2(d), "the offense guideline 

that results in the highest offense level is used." USSG 

S 3D1.2 comment. (n.6). 

Applied here, the counts for distribution of cocaine near 

a school (21 U.S.C. S 860(a)) and for operating a CCE (21 

U.S.C. S 848) are properly grouped together. See USSG 

S 3D1.2(d). The counts for distribution of cocaine near a 

school result in a higher offense level than the CCE count. 

While Riddick's offense level for CCE count is 42 pursuant 

to S 2D1.5,8 Riddick's offense level for distribution of 

cocaine near a school is 43. Specifically, the provision 

applicable for violations of S 860(a), USSGS 2D1.2, directs 

the court to add one offense level to "the offense level from 

S 2D1.1 applicable to the total quantity of controlled 

substances involved in the offense." USSG S 2D1.2(a)(2). 

Riddick's offense level from S 2D1.1 is 38 because the total 

quantity involved in the offense was more than 150 

kilograms of cocaine. Thus, the base offense level would be 

39, plus a 4-level increase under USSG S 3B1.1(a) for 

Riddick's role as leader or organizer of criminal activity 

involving five or more people.9 The total offense level is 43, 

_________________________________________________________________ 

8. Sentencing Guideline S 2D1.5 applies to the CCE count. Here, the 

base offense level is 4 plus the offense level fromS 2D1.1, for a total of 

42, mandating a sentence of 360 months to life. 

9. Riddick did not contest the four level increase pursuant to USSG 

S 3B1.1(a) on appeal. Riddick, however, appealed the sufficiency of the 

CCE conviction involving the same facts. In part IB, supra, we concluded 

that there was sufficient evidence on this point to sustain the jury's 

verdict. 

 9 
mandating a sentence of life imprisonment. Thus, under 

USSG S 3D1.2(d), the district court should have applied 

S 2D1.2 and sentenced Riddick to life imprisonment.

The district court, however, sentenced Riddick on the 

CCE count based on its perception that operating a 

continuing criminal enterprise constituted a more serious 

offense than the offense of distributing cocaine near a 

school or playground and thus the distribution count 

merged with the CCE count for sentencing purposes. The 

district court's perception of the seriousness of the crime 

does not provide a basis on which the court may disregard 

the explicit instructions of the Sentencing Guidelines. The 

Guidelines do not direct the court to make a subjective 

determination of which count is the most severe or onerous 

in determining the sentence. See USSG S 3D1.2(d). Rather, 

the Guidelines suggest that the severity of the offense is 

fully accounted for in the court's calculation of the offense 

level. Thus, the district court erred. 

Moreover, even assuming arguendo that it is improper to 

impose a higher penalty for a "lesser included offense" than 

for the more serious offense, substantive predicate offenses 

involved in a CCE conviction, such as Riddick's violation of 

21 U.S.C. S 860(a) for distributing cocaine in the vicinity of 

a school, are not lesser included offenses of the CCE count. 

The issue of whether one count is the lesser included 

offense of another arises when the court is confronted with 

two distinct statutory provisions applicable to the same 

criminal act. In such a situation, the court will look at 

"whether each provision requires proof of an additional fact 

which the other does not." Blockburger v. United States, 284 

U.S. 299, 304 (1932). The traditional test does not apply, 

however, where "there is a clear indication of contrary 

legislative intent." United States v. Rivera-Martinez, 931 

F.2d 148, 154 (1st Cir. 1991) (quoting Missouri v. Hunter, 

459 U.S. 359, 367 (1983)). As the Supreme Court stated in 

Garrett v. United States, 471 U.S. 773, 779 (1985), "[t]he 

language, structure, and legislative history of the

Comprehensive Drug Abuse, Prevention and Control Act of 

1970, . . . show in the plainest way that Congress intended 

the CCE provision to be a separate criminal offense which 

was punishable in addition to, and not as a substitute for, 

the predicate offenses." 

 10 
Further, the language of Garrett is not contradicted by 

Rutledge v. United States, 517 U.S. 292, 300 (1996), in 

which the Court held that conspiracy to distribute 

controlled substances is a lesser included offense of the 

CCE offense because the conspiracy count does not require 

proof of any fact that is not also an element of the CCE 

count. Thus, a sentence for conspiracy to distribute 

controlled substances in addition to a concurrent CCE 

offense sentence amounted to an improper cumulative

second punishment. Id. at 302-03. Rutledge, however, 

explicitly distinguished Garrett as a case"adher[ing] to our 

understanding that legislatures have traditionally perceived 

a qualitative difference between conspiracy-like crimes and 

the substantive offenses upon which they are 

predicated. . . . In contrast to the crime[ ] [of importing 

marijuana] involved in Garrett, this case involves two 

conspiracy-like offenses directed at largely identical 

conduct." Id. at 301 n.12. 

As various Courts of Appeals decisions recognize, the 

Supreme Court has made clear that while a defendant may 

not be sentenced, even concurrently, to both a conspiracy 

conviction and a CCE conviction because one is the lesser 

included offense of the other, the same rule does not apply 

when the predicate offense is a separate substantive 

offense. Substantive predicate offenses do not merge with 

the CCE count. See United States v. Grayson, 795 F.2d 

278, 287 (3d Cir. 1986) (stating in dicta that under Garrett, 

the Double Jeopardy clause does not bar cumulative 

punishments for CCE and underlying substantive predicate 

offenses); Rivera-Martinez, 931 F.2d at 154 (finding no 

constitutional impediment to the imposition of cumulative 

sentences on the CCE count and on the predicate 

substantive count of aiding and abetting); United States v. 

Morrow, 929 F.2d 566, 568 (10th Cir. 1991) (holding that 

the manufacture of methamphetamine count was not the 

lesser included offense of the CCE count, court affirmed 

sentence imposed on manufacture count); United States v. 

Jones, 918 F.2d 909, 909-10 (11th Cir. 1990) (holding that 

"[w]hen the predicate act is a substantive violation of the 

narcotics laws, as distribution is, the substantive violation 

does not merge into the CCE count"). 

 11 
Thus, the district court was not precluded from 

sentencing Riddick on the counts for distribution of cocaine 

near a school. Accordingly, we conclude that the district 

court erred by failing to sentence Riddick to life 

imprisonment pursuant to USSG S 2D1.2 for his conviction 

under 21 U.S.C. S 860(a) and for his role as an organizer 

pursuant to USSG S 3B1.1(a). 

Riddick's challenge to the district court's factualfindings 

does not affect the court's conclusion. Riddick argues that 

even if the court concludes that he is to be sentenced under 

USSG S 2D1.2, he should not receive a life sentence. 

Riddick bases this claim on his belief that the court made 

the erroneous factual finding that 150 kilograms of cocaine 

were attributable to him. With an accurate assessment of 

the quantity of cocaine a lower base offense level would 

apply and would preclude a sentence of life in prison. 

As proof of the inaccuracies, Riddick states that the court 

added quantities for which there was no record evidence 

presented or dates setting forth when the transactions 

occurred. Even allowing for the 75 kilograms assessed to 

him in 1993, Riddick argues that the Government can

prove that he distributed no more than 108.75 kilograms of 

cocaine and even this amount was based on improperly 

drawn inferences from testimony of a man who was in

prison for at least part of the time he was allegedly making 

sales to Riddick. Finally, Riddick contends that any 

conclusion that he was responsible for the total quantity of 

drugs involved in the CCE was in error because the district 

court did not make a finding that it was reasonable to 

impute knowledge of all the conspiracy's criminal conduct 

to him. As indicated previously, however, the district court 

made clear factual findings based on equally clear 

reasoning. Riddick has presented nothing to suggest that 

the court's detailed factual finding that he was responsible 

for 150 kilograms of cocaine, an estimate significantly lower 

than either that of the Government or of the probation 

officer, is clearly erroneous. 

 12 
III. 

In sum, we affirm the conviction, vacate the sentence, 

and remand for resentencing in accordance with this

opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 13