Opinions of the United
1998 Decisions                                                                                                             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Precedential or Non-Precedential: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, 

, 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, 

, 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, 

, 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, 

, 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. 

. 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 court-
authorized 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, 

, 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,

, 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 

, 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, 

, 304 (1932). The traditional test does not apply,
however, where "there is a clear indication of contrary
legislative intent." United States v. Rivera-Martinez, 

, 154 (1st Cir. 1991) (quoting Missouri v. Hunter,

, 367 (1983)). As the Supreme Court stated in
Garrett v. United States, 

, 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, 

, 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. 

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." 

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, 

, 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); 

(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, 

, 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, 

, 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