Opinion
No. 5:00CV1781, 5:91CR0291
October 31, 2000
Attorney For Petitioner: Angelo F. Lonardo, Yelsky Londardo, Cleveland, OH.
Attorney For Respondent: Ann C. Rowland, United States Attorney, Cleveland, OH; Benita Y. Pearson, Office of the U.S. Attorney, Cleveland, OH; Bernard A. Smith, Office of the U.S. Attorney, Cleveland, OH.
MEMORANDUM ORDER
For the reasons stated below, the pro se motion of Larry Dusenbery to vacate his conviction and sentence (docket no. 1), pursuant to 28 U.S.C. § 2255, is GRANTED IN PART. Specifically: (1) Dusenbery's conviction for engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848, is vacated; (2) Dusenbery's current sentence is vacated; and (3) Dusenbery shall be re-sentenced, pursuant to his conviction for engaging in a conspiracy to distribute cocaine, in violation of 18 U.S.C. § 846. On this Court's own motion, execution of this Order is STAYED pending appeal by the parties.
If the parties do not timely file any appeal, the Court will undertake re-sentencing as follows:
(1) given that Dusenbery shall be re-sentenced, he shall remain incarcerated pending re-sentencing; (2) the United States Probation Office shall prepare an updated Pre-sentence Investigation Report ("PSIR"); (3) the parties shall follow normal procedures regarding any objections to the PSIR, pursuant to Fed.R.Crim.P. 32; (4) re-sentencing shall occur on January 12, 2001, at 1:00 p.m.; (5) Dusenbery shall notify the Court, as soon as possible, whether he wants the Court to appoint counsel to represent him at his re-sentencing; and (6) the United States Marshal shall make arrangements to ensure Dusenbery is present in Court at re-sentencing. If any party does timely file an appeal. the procedures contained in this paragraph are automatically cancelled.
The Court notes it has already granted Dusenbery's application to proceed in forma pauperis. Docket no. 445. It appears, accordingly, that Dusenbery is entitled to appointment of counsel for his re-sentencing.
The Court notes that, conceivably, the government could choose to re-try Dusenbery on the now-vacated CCE charge. Neither party, however, addressed the procedural or substantive propriety of this possibility. The government may still address this issue to the Court.
Finally, Dusenbery's motion to strike the government's response to his motion to vacate sentence (docket nos. 8 10) is DENIED.
I. Procedural History.
On October 9, 1991, a ten-count indictment was filed charging petitioner Larry Dusenbery with: one count of engaging in a continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. § 848; one count of conspiracy to distribute cocaine, in violation of 18 U.S.C. § 846; and eight counts of using a telephone in furtherance of drug trafficking offenses, in violation of 21 U.S.C. § 843. Dusenbery pleaded guilty to the CCE count, and the other counts were dismissed. The trial court sentenced him to "a 324-month term of imprisonment, to run concurrently with the sentence he was serving." United States v. Dusenbery, 1993 WL 393089 at *1 (6th Cir. Oct. 4, 1993). Dusenbery subsequently appealed, asserting that, during his plea colloquy, "the district court [did not] adequately inform [him] of the nature of the charge against him." Id. The Sixth Circuit Court of Appeals agreed, vacated the conviction, and remanded the case.Id.
The original indictment was brought against 8 defendants, and contained 27 counts. Dusenbery was named only in counts 1-6, 10, 15, 16, 23.
On remand, Dusenbery elected to go to trial; the government pursued only the CCE and conspiracy counts. The jury returned verdicts of guilty on both counts. The Honorable Sam H. Bell of this Court vacated the verdict on the conspiracy count, and sentenced Dusenbery to 480 months imprisonment on the CCE count, to run consecutively with the sentence he was already serving. The conviction and sentence were affirmed on appeal. United States v. Dusenbery, 1996 WL 306517 (6th Cir. June 6, 1996), cert. denied, 519 U.S. 956 (1996). Dusenbery then filed a motion to vacate sentence, pursuant to 28 U.S.C. § 2255. This Court denied the motion, and the Sixth Circuit affirmed. Dusenbery v. United States, 1999 WL 993973 (6th Cir. Oct. 21, 1999), cert. denied, 120 S.Ct. 1445 (1999).
Dusenbery's first § 2255 petition was assigned to the undersigned following Judge Bell's recusal. The current petition was assigned to the undersigned as a "related" action.
The Court "vacated the conspiracy conviction on the ground that it merged into the continuing criminal enterprise conviction." United States v. Dusenbery, 1996 WL 306517 at *1 (6th Cir. June 6, 1996), cert. denied, 519 U.S. 956 (1996); see United States v. Davis, 809 F.2d 1194, 1204 (6th Cir. 1987), cert. denied, 483 U.S. 1007 (1987) ("Congress did not intend continuous criminal enterprise and conspiracy charges to be subject to double punishment").
After this Court had denied Dusenbery's first § 2255 motion, the Supreme Court decided Richardson v. United States, 526 U.S. 813 (1999). In Richardson, the Supreme Court held that, in a CCE case, the jury must agree unanimously not only that the defendant committed some "continuing series of violations," but also as to which specific violations make up that continuing series. Dusenbery invoked Richardson and asked the Sixth Circuit to authorize him to file a second or successive motion to vacate his sentence, pursuant to 28 U.S.C. § 2255. The Sixth Circuit granted this motion, authorizing Dusenbery to "file a motion to vacate sentence on the ground that his conviction was unconstitutional after Richardson."In re: Larry Dean Dusenbery, No. 00-3286, slip op. at 1 (6th Cir. June 16, 2000). Dusenbery then filed the instant motion to vacate his conviction and sentence.
Notably, Dusenbery's motion contains five grounds for relief. In addition to the Richardson issue, Dusenbery argues that his conviction and sentence are unconstitutional because: (1) the government constructively amended the indictment during trial; (2) the indictment was defective because it did not set forth all elements of the CCE offense; (3) his trial counsel was ineffective; and (4) the government should not have been allowed to reinstate the conspiracy count after his initial guilty plea was vacated. It is clear, however, that the Sixth Circuit Court of Appeals permitted Dusenbery to file his second petition only to raise the Richardson issue. To allow Dusenbery to raise any additional grounds in his second petition, even as somehow interrelated to the Richardson issue, would be to ignore the important "screening function" performed by the court of appeals. In re Sims, 111 F.3d 45, 46 (6th Cir. 1997) (denying a petitioner's motion for permission to file a second § 2255 motion in district court). Accordingly, the Court will examine only Dusenbery's first ground for relief.
II. Motion to Strike.
Before addressing the merits of Dusenbery's motion to vacate, the Court examines Dusenbery's motion to strike the government's brief in response to his motion. Dusenbery points out that FBI Agent Robert Graves, who investigated Dusenbery and acted as a witness at his criminal trial, was subsequently investigated himself for possible corruption. Dusenbery states that the investigation of Graves was undertaken by, inter alia, the Cleveland Division of the United States Attorney's Office. Dusenbery thus asserts that the Cleveland Division of the United States Attorney's Office should not be allowed to respond to his motion to vacate sentence in this case because it has a conflict of interest.
The Court, however, fails to see any conflict. Dusenbery's petition raises the purely legal question of whether, in light of Richardson, the Court's jury instructions created constitutional error. The current petition does not raise the issue of whether any alleged corruption of Graves somehow tainted Dusenbery's conviction. Accordingly, Dusenbery's motion to strike the government's response brief is denied.
III. Analysis.
As noted, Dusenbery was convicted at trial of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848. This statute states that a person has engaged in a CCE if he commits a federal drug felony that "is a part of a continuing series of violations of [the federal drug laws]." Id. at § 848(a)(2); Richardson, 526 U.S. at 815. Dusenbery's conviction occurred before the Supreme Court decidedRichardson. In Richardson, the Supreme Court was asked to interpret the phrase "series of violations" — that is, did the jury have to: (1) "agree that the defendant committed at least three of all the underlying crimes the Government has tried to prove[, but] need not agree about which three;" or, instead, (2) "agree unanimously about which three crimes the defendant committed"? Id. at 818. The Richardson Court concluded that the latter interpretation was correct: "the statute requires jury unanimity in respect to each individual `violation.'" Id. at 824.
Because Richardson was decided well after Dusenbery's criminal trial, Judge Bell did not instruct Dusenbery's jury that it had to agree onwhich narcotics offenses constituted the continuing series of predicate violations. Nor did Dusenbery request any such instruction. On the other hand, Judge Bell did not affirmatively mis-instruct the jury, as did the district court in Richardson there, the trial court instructed the jurors that "they `must unanimously agree that the defendant committed at least three federal narcotics offenses,' while adding, `[y]ou do not . . . have to agree as to the particular three or more federal narcotics offenses committed by the defendant.'" Id. at 816 (emphasis added) (noting the district court specifically rejected the defendants' proposal to instruct the jury that it must "unanimously agree on which three acts constituted [the] series of violations"). At Dusenbery's trial, Judge Bell simply gave the standard unanimity instruction near the end of the jury charge.
With his second petition, Dusenbery argues he was deprived of a fair trial by Judge Bell's failure to give his criminal jury a Richardson unanimity instruction. Dusenbery asserts this failure violated his Sixth Amendment right to unanimous verdicts in federal criminal trials. Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972).
Dusenbery raises this claim on collateral attack, not on direct appeal. Thus, Dusenbery must show both: (1) cause for failing to raise this issue on direct appeal, and (2) actual prejudice from the Court's failure to give a specific unanimity instruction. A petitioner may show cause, inter alia, by pointing to new legal precedent. Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish actual prejudice, the petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982). "To warrant habeas relief because of incorrect jury instructions, [the] Petitioner must show that the instructions, as a whole, were so infirm that they rendered the entire trial fundamentally unfair." Murr v. United States, 200 F.3d 895, 906 (2000) (citing Estelle v. McGuire, 502 U.S. 62, 72 (1991)). If the alleged constitutional error does not have a "substantial and injurious effect or influence in determining the jury's verdict," then the error must be considered harmless. Id. (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
A. Cause
The government argues that Dusenbery does not show cause for failing to raise the Richardson issue earlier in this case, asserting that theRichardson decision was not really new legal precedent. The government posits that, before Dusenbery went to trial, other Sixth Circuit cases had broached the jury unanimity issue decided in Richardson. The government also notes that, two months before the Sixth Circuit Court of Appeals affirmed Dusenbery's conviction, the Third Circuit Court of Appeals held that specific unanimity is required concerning which related offenses constitute the continuing series of violations. United States v. Edmonds, 80 F.3d 810, 815 (3rd Cir. 1996), cert. denied, 519 U.S. 527 (1996); see Richardson, 526 U.S. at 816 (stating that certiorari was granted to resolve a conflict between the circuits, and citing Edmonds). The government argues that these cases gave Dusenbery notice of the jury unanimity issue, so he cannot now show cause for failing to raise this issue on direct appeal.
The Court finds this argument unpersuasive. As an initial matter, the Sixth Circuit Court of Appeals granted Dusenbery's motion for authorization to file a second petition "[because he] made the requisite showing that his proposed ground for relief arguably presents a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." In re: Larry Dean Dusenbery, slip op. at 1 (citing 28 U.S.C. § 2244(a)(3) 2255). This conclusion, alone, strongly repudiates the government's argument that Dusenbery cannot show cause for failing to earlier raise theRichardson issue.
Furthermore, the prior Sixth Circuit cases to which the government refers raised a related but different CCE jury unanimity issue; and, to the extent the two jury unanimity issues are analogous, these casesrejected the position ultimately adopted by the Supreme Court inRichardson. See United States v. Phibbs 999 F.2d 1053, 1087 (6th Cir. 1993), cert. denied, 510 U.S. 1119 (1994) (rejecting the analogous argument that, "in order to convict [a defendant] of directing a continuing criminal enterprise, [the jury] had to unanimously determine the identities of the five individuals he supervised or organized");United States v. English, 925 F.2d 154, 157-58 (6th Cir. 1991), cert. denied, 501 U.S. 1210 (1991) (same). Phibbs and English gave Dusenbery virtually no hint of the possible existence of the precise unanimity issue raised in Richardson, much less that the issue had merit.
As for Edwards, which was a harbinger to Richardson, the Third Circuit issued its opinion in that case after Dusenbery had briefed and argued his direct appeal. It is simply asking too much to insist that a prisoner, proceeding pro se, be aware of brand new developments in criminal and constitutional law in other circuits, and to immediately bring those developments to the attention of an appellate court after briefing and argument are complete. That Edmonds was decided beforeRichardson, and before Dusenbery had completed pursuit of his direct appeal or first petition for habeas corpus, does not, in the context of this case, stand for the proposition that Dusenbery should have known of the jury unanimity issue and raised it earlier. This is especially true given that the Third Circuit, in Edmonds, disagreed with all prior precedent.
See United States v. Hall, 93 F.3d 126, 129 (4th Cir. 1996), cert. denied, 519 U.S. 1151 (1996) ("Under the plain meaning of this section, as long as each juror is satisfied in his or her own mind that the defendant committed acts constituting the series, the requisite jury unanimity exists"); United States v. Canino, 949 F.2d 928, 947-48 (7th Cir. 1991), cert. denied, 504 U.S. 910 (1992) ("we hold that once each juror finds beyond a reasonable doubt that a CCE defendant committed at least two predicate offenses the purpose of the CCE is satisfied. . . . We do not require that the jurors unanimously agree as to the same predicate acts"); United States v. Lehder-Rivas, 955 F.2d 1510, 1519 n. 6 (11th Cir. 1992), cert. denied, 506 U.S. 924 (1992) ("[the defendant] additionally contends that the district court committed reversible error by failing to instruct the jury that. . . [it] must be unanimous in its finding of particular predicate acts before it may find a continuing criminal enterprise. [This] instruction is [not] required"). The government also notes that "futility cannot constitute cause if it means simply that a claim was `unacceptable to that particular court at that particular time.'" Engle v. Isaac, 456 U.S. 107, 130 n. 35 (1982). In this case, Dusenbery's present claim was not acceptable to any court at the time of his trial, was accepted by the Third Circuit only after his direct appeal to the Sixth Circuit had been briefed, and was accepted by the Supreme Court only after the denial of his first petition for habeas corpus had been affirmed. Undoubtedly, this is why the Sixth Circuit undertook the rare grant of Dusenbery's motion to file a second petition.
Perhaps more important, the Sixth Circuit has implicitly rejected the government's precise argument. In Murr v. United States, 200 F.3d 895 (6th Cir. 2000). In Murr, the defendant argued in a habeas petition that his CCE conviction was unconstitutional because, inter alia, the trial court had not given a Richardson jury unanimity instruction. The Murr court began its analysis by noting that the defendant could not succeed on any of his habeas grounds unless he first showed cause and prejudice.Id. at 900. The court next concluded that "Richardson applies retroactively because it set forth substantive law," id. at 906, and then jumped directly to the merits of the claim — essentially assuming that, because Richardson was new legal precedent, the petitioner had shown cause. Although the Murr court ultimately rejected the petitioner'sRichardson claim on the merits, it implicitly found the petitioner had shown cause for not having raised the issue earlier, because Richardson was new legal precedent.
The Sixth Circuit, moreover, has also explicitly rejected a very similar argument in the context of challenges to sentences following the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995). Thus, in Hilliard v. United States, 157 F.3d 444 (6th Cir. 1998), a habeas petitioner argued that his jury instructions at trial were unconstitutional in light of the new rule of law set out in Bailey. The Hilliard court concluded that the petitioner did "show sufficient cause for his belated objection [to the jury instructions]" because "[a]t the time of trial, the instructions were correct, yet after Bailey, they are erroneous." Hilliard, 167 F.3d at 450. Precisely the same is true in this case — at the time of Dusenbery's trial, the jury instructions were correct, yet after Richardson, they are erroneous. Accordingly, the Court concludes Dusenbery has shown cause for having failed to raise theRichardson issue earlier.
B. Prejudice
The question of whether Dusenbery has shown actual prejudice is answered by comparing this case to two others: Murr, 200 F.3d 895; andUnited States v. Jackson, 2000 WL 157172 (E.D. Pa. Feb. 14, 2000). In both cases, the Court found a Richardson claim to be without merit. And in both cases, the court based its decision on critical facts that are missing from Dusenbery's case.
In Murr, the defendant was convicted of CCE and sought habeas relief pursuant to 28 U.S.C. § 2255. One of the grounds for relief raised by the petitioner was "the district court's failure to instruct the jurors that they must unanimously agree about which narcotics violations constitute the `continuing series of predicate violations for [CCE] purposes," as required under Richardson. Id. at 904. In analyzing this argument on the merits, the court noted that the petitioner had been convicted not only of CCE but also "on Counts 2 through 11 of the indictment[,] which were alleged to be predicate violations supporting the CCE count." Id. at 906. The court noted that the "jury's guilty verdicts on Counts 2 through 11 required the jurors to unanimously agree that Petitioner had committed at least three predicate narcotics violations and that these violations were related to one another because they were all part of the cocaine distribution conspiracy." Id. at 907. Thus, the Murr court concluded, the trial court's failure to give aRichardson jury unanimity instruction was harmless error. Id. See also United States v. King, 169 F.3d 1035, 1041 (6th Cir. 1999), cert. denied, 120 S.Ct. 218 (1999) (finding, on direct appeal in a pre-Richardson case, that, even if the defendant was entitled to a specific jury unanimity instruction, the defendant's separate conviction "on all of the underlying predicate offenses" rendered the alleged error harmless).
Similarly, in Jackson, a habeas petitioner "challenge[d] the [trial] court's failure to give an instruction regarding juror unanimity on the predicate offenses of a CCE." Jackson, 2000 WL 157172 at *9. The Jackson court found that, "in light of the holdings in Edmonds and Richardson, the [trial] court's general unanimity instruction . . . was in error."Id. The court went on to note, however, that, "in addition to the CCE conviction, the jury convicted [the defendant] on [five additional] counts, all of which qualify for predicate acts for a CCE." Id. at 10. The evidence at trial also established clearly that these other counts "were related and continuing in nature." Id. Given these additional convictions, "the court conclude[d] that [the] error in failing to instruct the jury that they must unanimously agree about which violations make up the continuing series of violations in the CCE charge was harmless beyond a reasonable doubt." Id. (citing United States v. Escobar-De Jesus, 187 F.3d 148, 162 (1st Cir. 1999), cert. denied, 120 S.Ct. 208 (1999) (finding on direct appeal that, although the trial court erred when it failed to give a Richardson jury unanimity instruction, the error was harmless because the defendant's separate conviction on six other, related offenses "was tantamount to the jury having found that [the defendant] committed each of these violations for the purpose of the CCE count")).
When the Murr and Jackson courts (together with the King and Escobar-De Jesus courts) concluded that any error flowing from the failure to give aRichardson jury unanimity instruction was harmless, they relied upon the same critical fact — the jury had separately convicted the defendant of predicate violations supporting the CCE count. These separate convictions "ensure[d] that the concern at the core of theRichardson decision — namely, that jurors might convict a defendant of a CCE on the basis of violations for which there was non-unanimity — is not present." Escobar-De Jesus, 187 F.3d at 162.
In this case, however, the jury never made any such determination. Although the original indictment against Dusenbery did contain eight counts of using a telephone in furtherance of drug trafficking offenses, in violation of 21 U.S.C. § 843 — crimes which were alleged to be predicate violations making up the "continuing series" required for a CCE conviction — Dusenbery was never tried on those eight counts. Rather, after his original plea of guilty to CCE was vacated on appeal and the case was remanded, the government tried Dusenbery only on the CCE and conspiracy counts. The jury was never asked to find whether Dusenbery was guilty of any specific predicate violations, nor was it told that it had to agree unanimously which three predicate violations he committed.
At trial, the government's theory was that Dusenbery ran a cocaine distribution business between 1985 and 1990, importing kilogram quantities of cocaine from Florida almost every month and selling the drugs in Ohio. Trial Tr. at 10 (opening statement). The government asserted that, while running this business, Dusenbery engaged in at least four different types of violations of narcotics laws: "possession of cocaine with intent to distribute it, distribution of cocaine, the conspiracy to distribute cocaine, and using the telephone to facilitate these crimes." Id. at 491 (closing statement); see id. at 543 (the Court repeats these four types of violations in the jury instructions). With respect to the last type of violation alone, the government adduced evidence that Dusenbery engaged in at least seven separate violations of 21 U.S.C. § 843.
Count one of the indictment charged Dusenbery with operating a CCE between "at least as early as January of 1983, and continuing to the date of the filing of this indictment [October 9, 1991]."
At trial the government played for the jury about 30 audiotapes containing telephone conversations allegedly related to the CCE. This Court's reading of the trial transcript reveals that Dusenbery engaged in conversation on at least seven of those audiotapes, and possibly eight.See tr. at 423-55 (Dusenbery is identified as one of the voices on audiotapes 105, 110, 114, 118, 123, 125, 132; the record is unclear as to audiotape 119).
The trial court instructed the jury it could only convict Dusenbery of engaging in a CCE if the government proved, beyond a reasonable doubt, that Dusenbery committed "three or more violations of the federal narcotics laws which are in some way related to each other." Tr. at 545. Given the government's presentation of an array of possible predicate violations to support the CCE conviction, however, there is absolutely no way to be sure which precise "related violations" each juror found Dusenbery committed. For example, even if each one of the jurors found Dusenbery committed all seven separate violations of 21 U.S.C. § 843 that were evidenced by the audiotapes, one juror might have concluded that the violations evidenced by tapes 105, 110, and 114 were the ones that were "related," while another juror might have concluded that the violations evidenced by tapes 123, 125, 132 were the ones that were "related." There is simply no way to know what each juror found, and thus certainly no way to be sure the jury "agree[d] unanimously about which three crimes the defendant committed." Richardson, 526 U.S. at 818.
A third juror might have concluded that the "related violations" were instances of possession of cocaine, and not any of the alleged § 843 violations evidenced by the audiotapes.
Given that Richardson requires this specific unanimity, and given that Dusenbery's jurors never stated (and were never asked) precisely which narcotics violations they found constituted the continuing series of predicate violations for the CCE conviction, the failure of the trial court to give a specific jury unanimity instruction cannot be deemed harmless error under Brecht. Put simply, the trial court's failure — understandable though it may have been — "worked to [Dusenbery's] actual and substantial disadvantage," Frady, 456 U.S. at 170, because the jury was allowed to convict Dusenbery with less than the degree of unanimity required by the Sixth Amendment. Obviously, these circumstance rise to the level of "infecting his entire trial with error of constitutional dimensions." Id.
Because this case is on collateral review, as opposed to direct review, the Court applies the "actual prejudice" harmless error test described in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). See Sustache-Rivera v. United States, 221 F.3d 8, 18 (1st Cir. 2000);Singleton v. United States, 26 F.3d 233 (1st Cir. 1994), cert. denied, 513 U.S. 1003 (1994). That is, the Court "examines whether the government can show that the error did not have `substantial and injurious effect or influence.'" Sustache-Rivera, 2212 F.3d at 18 (quoting Brecht, 507 U.S. at 637 (internal quotation marks and citation omitted) and Singleton, 26 F.3d at 236). Under this test, trial error is deemed harmless "if it is highly probable that the challenged action did not affect the judgment."Singleton, 26 F.3d at 237 (internal quotation marks and citation omitted). Accordingly, a finding that the error was not merely harmless is tantamount to a finding of prejudice.
In sum, the trial court's failure to give a Richardson jury unanimity instruction was error; the error cannot be deemed harmless in the circumstances of this case; and Dusenbery has therefore carried his burden of showing both prejudice and a right to relief.
C. Relief
The question remains, however, what Dusenbery's relief should be. Dusenbery argues that: (1) his CCE conviction and sentence must be vacated; and (2) he must therefore be released from prison. The government notes that, even if Dusenbery's CCE conviction and sentence must be vacated, Dusenbery was also convicted of conspiracy; therefore, the government argues, he should be re-sentenced based on his conspiracy conviction.
Dusenbery replies that he should not be re-sentenced, because his conspiracy conviction is void. Dusenbery presents two bases for this argument. The Court examines each basis separately.
1. Basis One — The Conspiracy Conviction is Void Ab Initio.
After Dusenbery entered his original plea of guilty to the CCE count, the government dismissed all of the other charges against him, including the conspiracy count. See Dusenbery, 1993 WL 393089 at *1 ("[t]he [plea] agreement provided that Mr. Dusenbery would plead guilty to one continuing criminal enterprise count; that the remaining counts would be dismissed and that Mr. Dusenbery would be sentenced to imprisonment for 324 months, the sentence to run concurrently with the sentences he was then serving") (emphasis added). Dusenbery asserts that, after the Sixth Circuit Court of Appeals vacated his plea, the government never re-indicted him nor formally moved to reinstate the conspiracy count. Dusenbery thus concludes that his conviction on the conspiracy count is void ab initio, so this Court cannot now re-sentence him for engaging in an illegal conspiracy.
This argument is not frivolous. In Reid v. United States, 1998 WL 69832 at *2 (6th Cir. Feb. 10, 1998), the Sixth Circuit Court of Appeals recognized that when "a petitioner obtains a reversal of a charge to which he pleaded guilty, all counts may be reinstated because any waiver by the government was only conditioned on the defendant's guilty plea, a plea that the defendant has in effect withdrawn." The appellate court implied, however, that the "restor[ation of] the relationship between the defendant and the state as it existed prior to the defunct bargain" may not be automatic; the court simply stated that "the government is free to re-indict [the defendant] on the dismissed offenses." Id. The Reid court did not address expressly whether formal reindictment was absolutely required.
The Fifth Circuit Court of Appeals went a little further in United States v. Bounds, 985 F.2d 188, 191 (5th Cir. 1993), cert. denied, 510 U.S. 845 (1993), a case procedurally identical to this one. InBounds, the court stated that, when a criminal defendant successfully appeals his conviction pursuant to a plea, "the government ordinarily should reindict or move to reinstate the dismissed charges." The court suggested that the failure to do so could deprive the court of subject matter jurisdiction over the previously-dismissed counts. The court went on to hold, however, that "in the unique circumstances" presented, the government's failure to reindict was harmless error.
In Bounds, the defendant
initially pleaded guilty to two of the four counts contained in the indictment; the district court's judgment dismissed the other two counts pursuant to the plea bargain. We reversed this judgment because the district judge failed properly to apprise Bounds of the period of supervised release he could receive. In an apparent blunder, the government failed to either reindict Bounds or move for reinstatement of the dismissed charges.Bounds, 985 F.2d at 191.
Dusenbery's position also finds modest support in case law suggesting that, to ensure the government may pursue any dismissed charges if the defendant repudiates his plea bargain (either by withdrawing the plea or by successfully challenging his conviction on appeal), the government should include a clause in the plea agreement, itself, providing that the original charges will be reinstated if the agreement is vacated. See Bounds, 985 F.2d at 191 n. 1 ("[w]e suggest that the government could place a provision to this effect in the plea bargain itself"); cf. United States v. Salemo, 81 F.3d 1453, 1461 (9th Cir. 1996) (discussing a plea agreement containing the following language: "[i]f defendant's guilty plea is rejected, withdrawn, vacated or reversed, at any time, the United States will be free to prosecute the defendant for all charges of which it has knowledge, and any charges that have been dismissed because of this plea agreement will be automatically reinstated").
In this case, there is no indication in the record that, after remand, the government moved to reinstate the conspiracy count, nor that Dusenbery was reindicted or rearraigned on a conspiracy charge. Nor did Dusenbery's plea agreement contain a "savings clause" similar to the provision quoted from Salemo. Thus, Dusenbery raises a non-frivolous argument that the trial court, on reman d, did not have subject matter jurisdiction over the earlier-dismissed conspiracy count. The question of federal subject matter jurisdiction, of course, is never waived. United States v. Chambers, 944 F.2d 1253, 1260 (6th Cir. 1991), cert. denied, 502 U.S. 1112 (1992) ("lack of subject-matter jurisdiction is a nonwaivable defect which may be raised by any party at any time") (citing Fed.R.Crim.P. 12(b)(2)).
On the other hand, Dusenbery cites no case law standing directly for the proposition that, in the circumstances presented, the government's failure to formally reindict or move for reinstatement of the conspiracy charge should void his conviction on that charge. And, it is just as reasonable to conclude that, because the government did not get the benefit it bargained for in the plea agreement — a valid conviction — neither should Dusenbery get the benefit he bargained for — dismissal of the conspiracy charge. Return of both parties to the status quo ante — that is, pre-plea — seems equitable in circumstances where, as here, dismissal of a count or counts occurs as a quid pro quo for a plea that the defendant later chooses to withdraw.
To some extent, then, Dusenbery has identified an open question, with no case law directly on point. Ultimately, this Court does not reach the merits of Dusenbery's position because the Court is constrained by the doctrine of the law of the case. Dusenbery raised a virtually identical argument on direct appeal. See Dusenbery, 1996 WL 306517 at *5 ("Mr. Dusenbery also argues that the conspiracy conviction was improper because of a defect in the indictment. He points out that when he pleaded guilty to the continuing criminal enterprise charge, the government agreed to dismiss the conspiracy count. After he withdrew his guilty plea, the government did not move to reinstate the conspiracy count"). The Sixth Circuit Court of Appeals quickly rejected the argument, concluding that "[d]efects in the indictment. . . must be raised prior to trial," and adding that "[t]he alleged defect in the indictment is irrelevant, moreover, because the conspiracy charge was ultimately dismissed." Id.
While the appellate court's analysis came under the rubric of "defective indictment" and not "subject matter jurisdiction," the court did reject essentially the same argument Dusenbery now raises — that is, that the government's failure to move for reinstatement of the conspiracy charge should void his conviction on that charge. Under the law of the case doctrine, "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Moses v. Business Card Exp., Inc., 929 F.2d 1131, (6th Cir. 1991), cert. denied, 502 U.S. 821 (1991). Thus, this Court is bound by the appellate court's rejection of Dusenbery's argument that his conspiracy conviction is void ab initio.
2. Basis Two — The Conspiracy Conviction was Vacated After Trial.
Dusenbery also notes that, after he was convicted at trial of both CCE and conspiracy, the trial court vacated his conspiracy conviction. Specifically, Judge Bell entered a judgment stating that "Count 2 is dismissed pursuant to U.S. v. Davis, 809 F.2d 1194, 1205 (6th Cir. 1987)[, cert. denied, 483 U.S. 1007 (1987)], and U.S. v. Schuster, 769 F.2d 337, 345 (6th Cir. 1985)[, cert. denied, 475 U.S. 1021 (1986)]." Judgment at 1 (N.D. Ohio July 28, 1994). Dusenbery thus argues there now exists no conspiracy conviction upon which he maybe re-sentenced. This argument misconstrues the trial court's judgment.
Davis and Schuster, upon which Judge Bell relied, held that "Congress did not intend continuous criminal enterprise and conspiracy charges to be subject to double punishment." Davis, 809 F.2d at 1204 (citingSchuster, 769 F.2d at 344-45). Accordingly, when a defendant is found guilty of both crimes, a district court should "vacate the convictions for conspiracy and merge them into the continuing criminal enterprise offense." Schuster, 769 F.2d at 345. This is what Judge Bell did: "[a]t sentencing the district court, on a motion by the government, vacated the conspiracy conviction on the ground that it merged into the continuing criminal enterprise conviction." Dusenbery, 1996 WL 306517 at *1 (emphasis added).
When Judge Bell dismissed Dusenbery's conspiracy conviction, the dismissal was clearly premised upon the condition that there existed a valid CCE conviction into which the conspiracy conviction merged. Without a valid CCE conviction there could be no merger, and thus the condition upon which dismissal of the conspiracy conviction was premised disappeared. Indeed, the underlying reason for dismissal of the conspiracy conviction — avoidance of double punishment — also disappeared. Thus, the conspiracy conviction remains valid.
The failure of the trial court to give a Richardson jury instruction creates constitutional infirmity in the CCE conviction, but this failure does not affect the conspiracy conviction. Accordingly, the dismissal of the conspiracy conviction is abrogated, and the Court must re-sentence Dusenbery based on that conviction, alone.
3. Conclusion
The Court concludes that, although Dusenbery's CCE conviction and sentence must be vacated, Dusenbery should be re-sentenced based on his conspiracy conviction. The Court rejects the arguments made by Dusenbery suggesting that his conspiracy conviction is no longer valid. Accordingly, the Court: (1) vacates Dusenbery's conviction for engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848; (2) vacates Dusenbery's current sentence; and (3) shall re-sentence Dusenbery, pursuant to his conviction of engaging in a conspiracy to distribute cocaine, in violation of 18 U.S.C. § 846.
On this Court's own motion, execution of this Order is STAYED pending appeal by the parties.
IT IS SO ORDERED.