Appeal from the United States District Court for the Northern District of Indiana, Hammond Division, No. 83 CR 36 - Michael S. Kanne, Judge
Before Flaum and Easterbrook, Circuit Judges, and Weigel, Senior District Judge.*fn*
EASTERBROOK, Circuit Judge.
Ronald Markowski was the kingpin of a marijuana and cocaine smuggling operation. The district court sentenced him to 45 years' imprisonment without possibility of parole under the Continuing Criminal Enterprise statute, 21 U.S.C. § 848, and fined him $100,000. Other sentences under four other statutes run concurrently with this one, making the CCE count the principle object of our attention.
From 1977 through 1982 Markowski led a large group of smugglers who moved marijuana and cocaine from Colombia to Indiana via the Bahamas. The indictment named 41 defendants and many other unindicted conspirators. We affirm the conviction of a defendant who manned an airfield in the Bahamas in United States v. Molt, No. 84-3164, also decided today. More than 49,800 pounds of marijuana and 4,100 pounds of cocaine were imported during the course of the conspiracy. The smuggling operation was run like a business, with investors, secretaries, wholesalers, drivers, pilots, and off-loaders all on the operation's payroll. Markowski used a family-owned trucking business, located in East Chicago, Indiana, as one front for his smuggling operation.
Most of the evidence came from smugglers who cooperated with the prosecution. We narrate it in the light most favorable to the Government. In 1977 Markowski joined with two other smugglers to fly marijuana from Colombia to the United States. The aircraft used in this initial operation was purchased through the family business and used only for smuggling. The plane once crashed in Colombia. Markowski flew to Colombia to rescue his pilots and met a Colombian named Moss who later became his major source of drugs.
Markowski continued his smuggling operation in 1978 with at least two other planes. Witnesses testified to specific importations of 1,000 pounds of marijuana in March 1978 and several other importations during the summer of 1978. Sometime in 1978 Markowski ended his association with his original partners and joined with Frank Brady (still a fugitive), George Chiattello (who pleaded guilty), and Terry Lowe (still to be tried) in a larger venture.
The new operation was more structured. Markowski and Lowe had an attorney form a corporation, Marlowe International Investments. The corporation was used to hide Markowski's interest in an aircraft used for smuggling. One of Markowski's pilots was named president of the corporation. The Marlowe aircraft was used repeatedly between December 1979 and July 1980 to import marijuana from Colombia. The smuggling continued throughout 1981 and 1982. The normal course of any trip was from Colombia to a stopover in the Bahamas for refueling. The next stop was Georgia or Florida, where the marijuana would be unloaded. The marijuana would then be transported to Northern Indiana or Chicago for distribution.
In 1982 Markowski expanded his operation to include cocaine. The evidence showed not only the importation of planes full of cocaine but also two deliveries of cocaine by Markowski to the offices of the family trucking business.
The CCE offense has five elements: (1) a predicate offense violating a specified drug law (2) as part of a "continuing series" of drug violations (3) that occurred while the defendant was acting in concert with five or more other people (4) to whom the defendant occupied the position of an organizer or manager and from which series the defendant (5) obtained substantial income or resources. Garrett v. United States, 471 U.S. 773, 105 S. Ct. 2407, 2415, 85 L. Ed. 2d 764 (1985), describing 21 U.S.C. § 848(b). Section 848 is "designed to reach the 'top brass' in the drug rings . . . " Garrett, 105 S. Ct. at 2413. See also United States v. Ambrose, 740 F.2d 505 (7th Cir. 1984), cert. denied, 472 U.S. 1017, 105 S. Ct. 3479, 87 L. Ed. 2d 614 (1985).
Markowski's principal argument is based on the compound nature of the offense. The prosecution must establish both the predicate offenses and the managerial role. The indictment charged Markowski with two substantive drug offenses, on which he was convicted. Because of the convictions on these predicate offenses, he asserts, the Double Jeopardy Clause of the Fifth Amendment prevents his conviction on the CCE offense, which he characterizes as a "greater" offense arising from the same facts. We accepted this argument in United States v. Jefferson, 714 F.2d 689 (7th Cir. 1983). The Supreme Court rejected an identical argument in Garrett. Our holding on this issue in Jefferson therefore is no longer controlling, and the double jeopardy objection to the CCE charge fails.
The fact that Markowski was convicted on only two predicate offenses affords him several additional arguments. The parties agreed at trial that a "continuing series" of violations means three or more substantive violations of the drug laws.*fn1 Markowski argues that § 848 requires three convictions, not just three violations. Because the only convictions were on the two counts of distributing cocaine, Markowski says that the Government is one short. The prosecutor responds that "violations," rather than convictions, are enough. The jury was ...