### 1998 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

9-25-1998 

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. R iddick

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 97-1367,97-1433

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. e du/thir dc ir c uit_1998/235Filed 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 C ourt 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 follo wing a jury trial. Riddick raises multiple claims includin g that there was a variance between the single conspiracy charged and the evidence produced at trial, there was insuf ficient evidence to support his continuing criminal enterpr ise ("CCE") conviction, the Government both improperly disclosed and presented misleading grand jury testi mony, the court erred in denying Riddick's suppression mo tion,
and the Government conducted an unauthorized wireta p. 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 applicabl e to his CCE conviction, even though USSG S 2D1.2, the guide line applicable to his conviction for distribution of co caine near a school, required a higher offense level of 43 and a mandatory life sentence. The court vacates the sent ence and remands for resentencing.1

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1. Because a mandatory life sentence is required on the school count,
the court does not reach the issue of whether the d istrict court erred in refusing to sentence Riddick to the statutorily man dated term of life in prison for his CCE conviction as required by 21 U.S .C. S 848(b).

2Factual Background

This case began with an indictment against twenty t hree defendants who engaged in a drug distribution consp iracy in Pennsylvania from 1989 to 1994. The Government f iled a superseding indictment in July 1994 against the o riginal defendant and co-defendants, including Riddick. The indictment charged Riddick with one count of engagi ng in a continuing criminal enterprise (21 U.S.C. S 848(a )), one count of conspiring to distribute more than five ki lograms of cocaine (21 U.S.C. S 846), thirteen counts of di stributing cocaine in or near a school (21 U.S.C. S 860(a)), a nd one count of distribution of cocaine (21 U.S.C. S 841(a )(1)).

On February 6, 1996, a jury convicted Riddick on al l counts.2 Following a sentencing hearing, the court found Riddick's CCE involved in excess of 150 kilograms o f cocaine. The court based this finding on the Govern ment's calculation that Riddick was responsible for in exc ess of 350 kilograms, the probation officer's calculation which was in excess of 250 kilograms, and the court's own det ailed assessment of the trial evidence, including evidenc e of the length of time of the conspiracy, the suppliers, th e sellers,
and the amount of cocaine distributed each week.

The Government argued that Riddick should be sentenced under the Sentencing Guideline section re sulting in the highest offense level within the group of co unts. 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 Governme nt argued that the court was not precluded from senten cing
Riddick on the distribution near a school counts be cause that offense is not a lesser included offense of th e CCE count. The district court rejected this argument an d held that "if you charge . . . continuing criminal enter prise, . . .
that offense is so odious and so severe that if the Government secures a conviction on that offense, th en the sentence should be imposed on that offense, even if it [is] not technically a lesser included offense."

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2. Any facts relevant to Riddick's appeal of his co nviction are discussed
in Section I.

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

CCE count. The district court did not dismiss the remaining counts and did not sentence Riddick on th em. This appeal followed.

Jurisdiction

The district court exercised jurisdiction pursuant to 18 U.S.C. S 3231 (1994) because the case involved offe nses against the laws of the United States. This court h as jurisdiction of appeals from all final decisions of the district court pursuant to 28 U.S.C. S 1291 (1994). In addit ion, this court has jurisdiction over an appeal by the Govern ment 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 varianc e between the indictment and the trial evidence becau se he and co-defendant Shannon Riley were charged as memb ers of a single conspiracy, but the trial evidence show ed 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, w ere 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 properl y 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 suppor t 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 R iddick

4and Riley closely cooperated and consulted each oth er to

protect Riddick's ongoing cocaine operation. They s upplied
each other with information about law enforcement investigations. Riley used the "safe haven" that Ri ddick created at Phill's Bar and Grill to sell cocaine, w hich 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 h ighly 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 c riminal enterprise because the Government's evidence showed that Riddick supervised only two "runners," notfive or m ore persons as required by 21 U.S.C. S 848(c). 3 The co urt reviews the sufficiency of the evidence in the ligh t most favorable to the government and must credit all ava ilable inferences in favor of the government. United State s v. Dickens, 695 F.2d 765, 779 (3d Cir. 1983).

The court finds that the Government presented suffi cient evidence to support Riddick's conviction for operat ing a CCE. The trial testimony shows that Riddick control led
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 obta ined confidential police information to protect sellers. Riddick stationed certain sellers at Phill's Bar & Grill, w here they had the right to sell cocaine. Other sellers sold d oor to door. Therefore, the testimony showed that Riddick had supervised numerous sellers in a unified drug ring.

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3. Riddick also claims that the district court impr operly admitted evidence of Nigel McFarlane's dealings with Dominic an and Colombian drug dealers as "other acts" evidence relating to R iddick'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.

5C. 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 Riddic k was indicted showed that confidential grand jury testim ony by government witness Nigel McFarlane was leaked to th e press in violation of Fed.R.Crim.P. 6(e). The distr ict court's
denial is reviewed for abuse of discretion. United States v. Gilsenan, 949 F.2d 90, 95 (3d Cir. 1991). This argu ment is without merit as Riddick has failed to cite any par t of McFarlane's grand jury testimony to support his cla im.

Second, Riddick claims that the Government presente d misleading testimony to the grand jury or withheld exculpatory testimony from the grand jury. All of t he "examples" cited by Riddick were refuted by the act ual transcripts of the grand jury proceedings. Thus, th is argument is also without merit.

D. Motion to Suppress Evidence

Riddick also claims that the district court erred i n denying his motion to suppress evidence from the 19 94 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 T ilghman Street, a location not listed in the warrant. Riddi ck did not raise the first two claims in his suppression motio n and
therefore the district court's denial is reviewed f or plain error. See Fed.R.Crim.P. 52(b).

Riddick's first two claims are without merit. The w arrant lists the items to be seized with sufficient specif icity. Moreover, the information in the warrant was not st ale; it showed an entrenched ongoing five-year drug operati on in which Riddick frequently used his home to conduct c ocaine transactions, and in which the most recent drug sal e 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

6to the underlying facts, but exercise[s] plenary re view 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, 1 994,
search of his residence. Riddick failed to substant iate his claim that Government agents improperly searched an adjoining property. Rather, the suppression hearing testimony showed that the agents confined their sea rch to the premises identified by the street address in th e warrant.4 In addition, Riddick failed to show that the Govern ment 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 den ying his motion to suppress all electronic surveillance on t wo grounds. We review the district court's factual fin dings for clear error and exercise plenary review of the lega l issues involved. Inigo, 925 F.2d at 656. First, he argues that the government illegally intercepted his telephone conv ersation before obtaining a court order on December 10, 1993
, authorizing surveillance. Riddick has failed to pro duce 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, whi ch showed a clear pattern of calls to the pagers and t elephones of co-conspirators such as Riddick. The pen registe rs also showed that after dialing a telephone or pager numb er, the
caller then entered certain additional numbers indi cating

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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 th e extra space part of 1106 1/2 Tilgham by eliminating access to the bedro om from 1108 Tilgham. Therefore, the agents properly searched th e space under the authority of the warrant.

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

other impulses which identify the numbers dialed or other wise 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).

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

Second, Riddick alleges that the Government interce pted a call on December 14, 1993, originating on Riddick's mobile phone without court authorization. The evidence sho ws, however, that the Government monitored the telephon e 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 Ri ley 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 aff irm
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 offens es occurring near a school.7 Section 2D1.2 should have been applied, the Government argues, because the Sentenc ing Guidelines require the use of the highest offense l evel within a group of counts. The standard of review of the district court's interpretation and application of the

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6. There were recordings made prior to December 199 3, 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 it s right to appeal the court's failure to apply USSG S 2D1.2. Riddick reli es on the Government's statement at the sentencing hearing, t hat regardless of
whether the court sentenced Riddick under the CCE s tatute or the conspiracy statute the end result would be a life s entence, as evidence that the Government did not raise this guideline pr ovision as an alternative sentencing option before the district c ourt.

This argument is without merit. At the conclusion o f 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 there fore, I would have the option . . . to sentence to the higher amount," sug gesting quite clearly
that the Government raised the issue below.

8Sentencing 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 state s that multiple counts "involving substantially the same h arm shall be grouped together into a single Group. Coun ts involve substantially the same harm . . . when the offense level is determined largely on the basis of . . . t he quantity of a substance involved." USSG S 3D1.2(d). Offenses covered by the USSG S 2D1.2 (distribution near a sc hool) and USSG S 2D1.5 (continuing criminal enterprise of fenses) are to be grouped together. USSG S 3D1.2(d). Moreov er, in cases of grouping under S 3D1.2(d), "the offense gu ideline that results in the highest offense level is used." USSG S 3D1.2 comment. (n.6).

Applied here, the counts for distribution of cocain e near a school (21 U.S.C. S 860(a)) and for operating a C CE (21 U.S.C. S 848) are properly grouped together. See US SG S 3D1.2(d). The counts for distribution of cocaine near a school result in a higher offense level than the CC E count. While Riddick's offense level for CCE count is 42 p ursuant to S 2D1.5,8 Riddick's offense level for distributi on of cocaine near a school is 43. Specifically, the prov ision 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 control led 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) f or Riddick's role as leader or organizer of criminal a ctivity involving five or more people.9 The total offense l evel is 43,

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8. Sentencing Guideline S 2D1.5 applies to the CCE count. Here, the base offense level is 4 plus the offense level from S 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 th e 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.

9mandating a sentence of life imprisonment. Thus, un der

USSG S 3D1.2(d), the district court should have app lied S 2D1.2 and sentenced Riddick to life imprisonment.

The district court, however, sentenced Riddick on t he CCE count based on its perception that operating a continuing criminal enterprise constituted a more s erious offense than the offense of distributing cocaine ne ar a school or playground and thus the distribution coun t merged with the CCE count for sentencing purposes. The district court's perception of the seriousness of t he crime does not provide a basis on which the court may dis regard the explicit instructions of the Sentencing Guideli nes. The Guidelines do not direct the court to make a subjec tive
determination of which count is the most severe or onerous in determining the sentence. See USSG S 3D1.2(d). R ather, the Guidelines suggest that the severity of the off ense is fully accounted for in the court's calculation of t he offense level. Thus, the district court erred.

Moreover, even assuming arguendo that it is imprope r to impose a higher penalty for a "lesser included offe nse" than for the more serious offense, substantive predicate offenses involved in a CCE conviction, such as Riddick's vio lation of 21 U.S.C. S 860(a) for distributing cocaine in the vicinity of a school, are not lesser included offenses of the C CE count.
The issue of whether one count is the lesser includ ed
offense of another arises when the court is confron ted with two distinct statutory provisions applicable to the same criminal act. In such a situation, the court will l ook at "whether each provision requires proof of an additi onal fact which the other does not." Blockburger v. United St ates, 284 U.S. 299, 304 (1932). The traditional test does not apply, however, where "there is a clear indication of cont rary legislative intent." United States v. Rivera-Martin ez, 931 F.2d 148, 154 (1st Cir. 1991) (quoting Missouri v. Hunter, 459 U.S. 359, 367 (1983)). As the Supreme Court sta ted 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 Ac t 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 substit ute for, the predicate offenses."

10Further, the language of Garrett is not contradicte d 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 r equire proof of any fact that is not also an element of th e CCE count. Thus, a sentence for conspiracy to distribut e controlled substances in addition to a concurrent C CE offense sentence amounted to an improper cumulative second punishment. Id. at 302-03. Rutledge, however
, explicitly distinguished Garrett as a case"adher[in g] to our understanding that legislatures have traditionally perceived a qualitative difference between conspiracy-like cr imes and the substantive offenses upon which they are predicated. . . . In contrast to the crime[ ] [of i mporting marijuana] involved in Garrett, this case involves two conspiracy-like offenses directed at largely identi cal
conduct." Id. at 301 n.12.

As various Courts of Appeals decisions recognize, t he Supreme Court has made clear that while a defendant may not be sentenced, even concurrently, to both a cons piracy
conviction and a CCE conviction because one is the lesser included offense of the other, the same rule does n ot apply when the predicate offense is a separate substantiv e offense. Substantive predicate offenses do not merg e with the CCE count. See United States v. Grayson, 795 F. 2d 278, 287 (3d Cir. 1986) (stating in dicta that unde r Garrett, the Double Jeopardy clause does not bar cumulative punishments for CCE and underlying substantive pred icate offenses); Rivera-Martinez, 931 F.2d at 154 (findin g no constitutional impediment to the imposition of cumu lative sentences on the CCE count and on the predicate substantive count of aiding and abetting); United S tates v. Morrow, 929 F.2d 566, 568 (10th Cir. 1991) (holding that the manufacture of methamphetamine count was not th e lesser included offense of the CCE count, court aff irmed sentence imposed on manufacture count); United Stat es v. Jones, 918 F.2d 909, 909-10 (11th Cir. 1990) (holdi ng that "[w]hen the predicate act is a substantive violatio n of the narcotics laws, as distribution is, the substantive violation does not merge into the CCE count").

11Thus, the district court was not precluded from

sentencing Riddick on the counts for distribution o f cocaine near a school. Accordingly, we conclude that the di strict court erred by failing to sentence Riddick to life imprisonment pursuant to USSG S 2D1.2 for his convi ction under 21 U.S.C. S 860(a) and for his role as an org anizer pursuant to USSG S 3B1.1(a).

Riddick's challenge to the district court's factual findings does not affect the court's conclusion. Riddick arg ues that
even if the court concludes that he is to be senten ced under USSG S 2D1.2, he should not receive a life sentence

. Riddick bases this claim on his belief that the cou rt made the erroneous factual finding that 150 kilograms of cocaine
were attributable to him. With an accurate assessme nt of the quantity of cocaine a lower base offense level would apply and would preclude a sentence of life in pris on.

As proof of the inaccuracies, Riddick states that t he court added quantities for which there was no record evid ence presented or dates setting forth when the transacti ons occurred. Even allowing for the 75 kilograms assess ed to him in 1993, Riddick argues that the Government can prove that he distributed no more than 108.75 kilog rams of cocaine and even this amount was based on improperl y drawn inferences from testimony of a man who was in prison for at least part of the time he was alleged ly making sales to Riddick. Finally, Riddick contends that an y conclusion that he was responsible for the total qu antity 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 c onduct to him. As indicated previously, however, the distr ict 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 re sponsible for 150 kilograms of cocaine, an estimate significa ntly lower than either that of the Government or of the probat ion officer, is clearly erroneous.

12III.

In sum, we affirm the conviction, vacate the senten ce, 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

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