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United States v. Cerro

November 4, 1985

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
SAMUEL B. CERRO, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Western District of Wisconsin. No. 84 CR 40 - John C. Shabaz, Judge.

Author: Posner

Before CUDAHY and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.

POSNER, Circuit Judge.

A jury convicted Samuel Cerro of five counts of conspiracy to distribute cocaine and three counts of filing false income tax returns. The judge gave him concurrent 15-year sentences no the first three conspiracy counts and consecutive 15-year sentences on the fourth and fifth conspiracy counts, for a total of 45 years. (Sentences of 3 years on each of the tax counts were made concurrent with the conspiracy sentences.) Cerro had also been charged with being a drug "kingpin," see 21 U.S.C. § 848, a charge that allows the most severe punishment possible under current federal law - life in prison without possibility of parole, see 21 U.S.C. §§ 848(a), (c), but this charge was dropped before trial on the authority of a dictum in United States. v. Jefferson, 714 F.2d 689, 702 n.27 (7th Cir. 1983), that a drug conspiracy is not one of the felonies on which conviction of being a kingpin can be based, see 21 U.S.C. § 848(b)(1). The dictum was rejected in United States v. Young, 745 F.2d 733, 750-52 (2d Cir. 1984). See also United States v. Schuster, 769 F.2d 337, 345 (6th Cir. 1985), and cases cited there. Its validity was left open in our recent decision in United States v. Markowski, 772 F.2d 358, 361 n.1 (7th Cir. 1985), and need not be decided in this case either; the government did not appeal the dismissal of the kingpin count as it could have done under 18 U.S.C. § 3731.

The principal issue raised by Cerro's appeal is whether the five conspiracies were indeed separate or were instead aspects of a single conspiracy; if the latter, the maximum sentence (apart from the tax counts) is 15 years and Cerro must be resentenced. Each of the alleged conspiracies was between Cerro and one other person, to whom Cerro consigned ("fronted") up to one ounce of cocaine each week for resale to users of cocaine. Each dealer would remit all or part of his retail sales revenues to Cerro, either retaining some of the revenues as compensation for his services or retaining some of the cocaine in lieu of money compensation.

The five dealers were the principal witnesses against Cerro, testifying under grants of immunity. In Count I the dealer was Amatok, and the evidence showed that the conspiracy ran from April 1980 to December 1980. The dealer and dates for the other conspiracies were as follows. Count II: Corti, summer or fall of 1978 to November 1980; Count III: Gaulke, March 1977 to the spring of 1979; Count IV: Schnidt, August 31, 1977 to December 8, 1980; Count V: Phillips, fall of 1979 to spring of 1981. Why the district judge imposed concurrent sentences for the first three conspiracies and consecutive ones for the last two is unclear. The fifth conspiracy did end later than the others, but the fourth (August 1977 to December 1980) fell within the overall span of the first three (March 977 to December 1980).

There was no evidence that any of the dealers knew that Cerro was selling cocaine through other dealers, beyond what might be inferred from the nature and timing of the conspiracies and the facts that all the transactions took place in Madison, Wisconsin, that Amato and Gaulko were brothers-in-law, that Corti "fronted" cocaine to Amato as well as selling cocaine at retail for Cerro, and that Phillips knew that Corti sold cocaine, though there is no indication that he knew that Cerro was supplier.

More often it is the government that is arguing for a single overarching conspiracy and the defendant for multiple conspiracies, the most recent examples in this court being United States v. Andrus, 775 F.2d 825, slip op. at 20-21 (7th Cir. 1985), and United States v. Towers, 775 F.2d 184, slip op. at 8-9 (7th Cir. 1985). The reasons, in descending order of importance, are that the statements made by a conspirator are admissible against all coconspirators, that multiple conspiracies involving different parties can raise serious problems of misjoinder under Rule 8(b) of the Federal Rules of Criminal procedures, see United States v. Velasquez, 772 F.2d 1348, 1352-53 (7th Cir. 1985), and that if a defendant is acquitted no one count of conspiracy and his convictions on other counts are reversed because of an error at the trial, retrial on those counts will be barred on the ground of double jeopardy if they actually charge the same offense as the one of which the defendant was acquitted. Although it might seem that the government would want to charge multiple conspiracies ni the hope that the defendant(s) would receive heavier sentences, this is rarely the case. The indictment of a major drug distributor will usually contain multiple substantive counts, for which consecutive sentences can be imposed, as well as conspiracy counts. And consecutive sentences for a substantive drug offense and a conspiracy to commit such an offense are also permissible, see, e.g., United States v. Wylie, 625 F.2d 1371, 1381-82 (9th Cir. 1980); United States v. Cardi, 519 F.2d 309, 315 (7th Cir. 1975); United States v. Espinosa, 771 F.2d 1382, 1402-03 n.27 (10th Cir. 1985), though infrequent, see Marcus, Conspiracy: The Criminal Agreement in Theory and in practice, 65 Geo. L.J. 925, 938 (1977).

By a fluke, none of the disadvantages of multiple conspiracies to the government is present here (there is no misjoinder problem because there is only one defendant, so that Rule 8(a), which is more liberal than 8(b), see United States v. Velasquez, supra, 772 F.2d at 1352-53, applies). And since the government unaccountably failed to charge any substantive drug offenses and the "kingpin" count was dismissed, the only possibility for imposing a very long prison term on the defendant was to prove multiple conspiracies. Whether this should be important when the defendant is 59 years old and in exceedingly poor health is not for us to say.

A conspiracy is an agreement; and to be a party to an agreement you must know something of its general scope and objective though not necessarily its details. See id. at 1351; Blumenthal v. United States, 332 U.S. 539, 557, 92 L. Ed. 154, 68 S. Ct. 248 (1947); United States v. Williams, 737 F.2d 594, 614 (7th Cir. 1984); United States v. Andolschek, 142 F.2d 503, 507 (2d Cir. 1944) (L. Hand, J.); cf. Raffles v. Wichelhaus, 2 H. & C. 906, 159 Eng. Rep. 375 (Ex. 1864); Smith v. North Am. Co. for Life & Health Ins., 775 F.2d 777, slip op. at 5 (7th Cir. 1985). You must, of course, at the very least know there is an agreement. So for any of Cerro's dealers to be a party to an overarching conspiracy to distribute cocaine through more than one dealer, the dealer would have to know that Cerro was selling through other dealers. See, e.g., Kotteakos v. United States, 328 U.S. 750, 755, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946); United States v. Elam, 678 F.2d 1234, 1245-47 (5th Cir. 1982); United States v. Barnes, 604 F.2d 121, 155 (2d Cir. 1979); United States v. Borelli, 336 F.2d 376, 383 n.2 (2d Cir. 1964) (Friendly, J.)

The cases sometimes say must know (Borelli, Elam, many others), less frequently must have reason to know (e.g., Barnes). Taken literally the latter formulation would imply something very curious indeed, that a conviction can be upheld without proof beyond a reasonable doubt of an element of the crime (knowledge of the conspiracy). But it should not be taken literally. Although usually in the law to say that someone has "reason to know" something means that he would be negligent in not knowing it in the present context it means only that knowledge can be inferred from circumstantial evidence. if the facts indicate that the defendant must have known something (the formulation in Borelli), then a jury may be able to find beyond a reasonable doubt that he did know it, especially since the requirement of knowledge is satisfied by proof that the defendant willfully shut his eyes for fear of what he might see if he opened them, United States v. Josefik, 753 F.2d 585, 589 (7th Cir. 1985). This interpretation of "reason to know" is supported by the full text of the passage in the case from which Barnes got the phrase: "if each [defendant retailer] knew, or had reason to know, that other retailers were involved with the Hernandez organization in a broad project for the smuggling, distribution and retail sale of narcotics, and had reason to believe that their own benefits derived from the operation were probably dependent upon the success of the entire venture, the jury could find that each had, in effect, agreed to participate in the over-all scheme." United States v. Baxter, 492 F.2d 150, 158 (9th Cir. 1973) (emphasis added). But the jury would have to find participation beyond a reasonable doubt.

A jury could have found that Cerros' dealers knew there were other dealers if for example Cerro had told the dealers this, if other dealers had told them, if they had observed cocaine dealings between Cerro and other dealers, or if they had seen Cerro with a quantity of cocaine too large to be distributed through one dealer. See, e.g., Blumenthal v. United States, supra, 332 U.S. at 549-59; Note, Federal Treatment of Multiple Conspiracies, 57 Colum. L. Rev. 387, 388-89 (1957). Considering that the dealers had a common supplier, that most of the conspiracies overlapped in time, sometimes by hears, that the conspiracies had the same purpose and one common participant, and that Cerro apparently made no effort to insulate any dealer from knowledge of the others, it is highly likely that the dealers did know they were part of a conspiracy involving other dealers. Nevertheless there is no direct evidence of this, nor evidence from which such knowledge could be inferred with the degree of certitude required for a criminal conviction. Even if the relationship among Amato, Cirti, and Gaulke could be thought to warrant an inference that they knew of each other's involvement in Cerro's distribution of cocaine - a proposition doubtful on its face but supported by language in some of the cases cited in the Columbia law Review Note, supra, at 388 n.12 - these were the dealers involved in the first three conspiracy counts, and Cerro received concurrent sentences on those counts. The only link forged between those dealers and Schnidt and Phillips, the dealers involved in the other two counts, was Phillips' testimony that he knew that Corti was a cocaine dealer, and he did not testify that he knew that Corti was a dealer for Cerro.

The failure to prove a single conspiracy is not surprising. It was no part of the government's purpose to show an overarching conspiracy - quite the contrary - or to show that the prosecution witnesses were members of such a conspiracy. And while Cerro might have wanted to establish a single conspiracy in order to put a cap on his sentence if he was convicted, he would not have improved his chances for acquittal by exploring the extent of the witnesses' knowledge of each other's dealing on his behalf. Testimony of their knowledge would have strengthened the case against him; the testimony of their lack of knowledge would not have weakened it.

But lack of proof that the dealers knew about each other need not be decisive on the question whether Cerro could be punished for multiple conspiracies. it is never right to try to answer a legal question, such as (in this case), whether there was one conspiracy or five conspiracies, without considering the purpose of the question. The purpose here is to decide whether Cerro was given an illegal sentence. For other purposes it would be clear that there were multiple conspiracies. It would be clear for example if any of the dealers had been charged with participating in an overarching conspiracy and the issue was whether the dealer ...


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