Appeals from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 86-30032--William L. Beatty, Judge.
Wood Jr., Posner, and Easterbrook, Circuit Judges.
EASTERBROOK, Circuit Judge.
Earl Dean Bond was a middleman between a supplier of marijuana in New Orleans and a distribution network in southern Illinois and Missouri. During part of the time involved in the charge, Bond purchased the drugs and resold them; later, when he became uncomfortably "hot", he took a commission, while Conrad Ingold, the supplier in New Orleans, sold directly to the distributors. Earl Bond was convicted both of conspiracy and of participating in a continuing criminal enterprise, 21 U.S.C. § 848; Ingold pleaded guilty to several charges; several of the members of the distribution net pleaded guilty or were convicted, and three of those members (including Earl's brother Randy) have joined Earl in appealing.
Earl Bond started selling marijuana in bulk no later than 1974. From 1981 to 1986 Bond bought large quantities of marijuana from Ingold and other sources, selling to Jerry Juenger and Fred Crook. In 1984 alone Bond sold between two and three tons of marijuana to Juenger. Crook paid for some of his marijuana with cocaine, which Bond distributed. To move this much marijuana from New Orleans to Illinois and Missouri, Bond ran some stash houses and employed assistants. His arrest on an unrelated charge in early 1985, however, raised his visibility; from then until a mass arrest of participants in May 1986, Juenger bought directly from Ingold. Bond received a commission on these sales and lent the aid of his friends. He was unloading a large shipment when arrested in May 1986.
The Continuing Criminal Enterprise (CCE) statute applies only to one who "acts in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management", § 848(d)(2)(A). It is convenient to refer to such persons as "kingpins", for the statute is directed at "the 'top brass' in the drug rings, not the lieutenants and footsoldiers." Garrett v. United States, 471 U.S. 773, 781, 85 L. Ed. 2d 764, 105 S. Ct. 2407 (1985). Earl Bond was no footsoldier. He prefers lieutenant's insignia and denies having a higher rank. As he tells the tale, Ingold was the supplier and one kingpin; Juenger was the distributor and another kingpin; he was a mere go-between.
The jury heard evidence that at one time or another Earl Bond acted in concert with at least 20 people, and that he was a manager rather than a subordinate. He had to do a good bit of organizing, supervising, and managing to move tons of marijuana northward over several years. He argues that this is not enough because (1) the evidence did not show a permanent directorial role with these 20; (2) the indictment did not name five persons whom he directed, and (3) the jury did not necessarily agree on the same five; (4) after January 1985, he was out of the direct line of control.
To take the last first: the indictment charged that the criminal enterprise continued between September 1984 and May 1986, so that a diminished role after January 1985 would not absolve Bond of liability. Until January 1985 he was in the thick of things, and as much a kingpin as Ingold--for we do not suppose ingold grew the marijuana in the bayous; he was himself a middleman. Bond did not ask the judge to instruct the jury to draw a line at January 1985, to convict him only if persuaded of his guilt by earlier activities. Even after January 1985 Bond visited stash houses and issued orders, and he certainly played a coordinating role. The highest bosses may rule indirectly, in ways that leave fewer traces; thus indirect supervision can satisfy the statute. United States v. Phillips, 664 F.2d 971, 1034 (5th Cir. 1981). Bond stresses that after January 1985 he was not a hands-on manager; yet the statute deals with both management and coordination, recognizing that one need not be a day-to-day supervisor to play an important role in a criminal enterprise. Bond was a sort of market-maker in marijuana, which may be a very valuable form of coordination. Real estate brokers help coordinate the market in real estate, even though they do not purchase the property and are paid (as Bond was) by commission. They influence the price signals that affect many persons' lives. The statute reaches those who "coordinate" activities. The jury was entitled to conclude, on the basis of Bond's entire activities from September 1984 through May 1986, that he had a managerial or coordinating role in a substantial operation. See United States v. Mannino, 635 F.2d 110, 116-17 (2d Cir. 1980), another CCE prosecution of a middleman. Cf. United States v. Ambrose, 740 F.2d 505 (7th Cir. 1984) (successful CCE prosecution of corrupt police on an aiding-and-abetting theory).
The first three contentions all deal with the allegations and proof that Bond acted in concert with five others. To the extent Bond served as a coordinator (rather than a manager) between January 1985 and May 1986, the five-person requirement is obviously met. Juenger and Crook employed many more than five persons to handle the marijuana, and Bond coordinated their activities with Ingold's. Suppose, however, we take the more narrow focus, looking only at Bond's deeds. He does not deny working with or issuing orders to at least 20 participants in this criminal venture. He claims instead that these were casual laborers, that the indictment did not name them, and that the jury did not necessarily agree on which five he supervised.
That the participants in this venture were casual labor is irrelevant. The statute speaks of acting in concert with five persons; it does not say the same five continuously or specify that any of the five must be "important" to the syndicate. Now the statute aims at criminal organizations. A small time dope dealer who keeps to himself and has a single mule to smuggle the drug into the country is outside the statute's scope. The dealer's need to replace his aide (because of arrests or the difficulty of getting good help in the business) would not authorize a CCE prosecution on the theory that the small-timer had one servant in January, a second in February, a third in March, and so on. The organization would never be larger than two. The Ingold-Bond-Juenger-Crook network was not a two-bit show, however; it dealt with tons of marijuana yearly and did cocaine business on the side. This network continuously had more than five employees. The question is whether Bond acted in concert with five as manager or coordinator. It is on this question that the tenure of office of the staff is irrelevant. That Earl Bond barked orders to Rylands on Monday and Wilhelm on Tuesday, while tossing bales of marijuana to his brother Randy on Wednesday--and that the Wilhelms of the organization may have been here today and gone tomorrow--does not detract from the extent of his coordinating role.
The indictment did not name Earl Bond's supervisees, but the prosecutor represents without contradiction that he followed an open-files discovery policy. Bond does not contend that he was surprised by any of the proof at trial. An indictment in the terms of the statute is sufficient, provided the defendant has adequate notice of the charges he must meet. Hamling v. United States, 418 U.S. 87, 117, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974); United States v. Zavala, 839 F.2d 523, 526 (9th Cir. 1988). The indictment used in this case is no different from the one we sustained in United States v. Jeffers, 532 F.2d 1101, 1105-06, 1113 (7th Cir. 1976), vacated in part on other grounds, 432 U.S. 137, 97 S. Ct. 2207, 53 L. Ed. 2d 168 (1977). The omission of five (or more) names from the indictment made it harder for the jury to focus on which persons Earl Bond supervised, but Bond did not ask for an instruction telling the jury that it had to agree on five particular persons or for a special verdict listing the five it believed he coordinated, so this subject cannot now be a source of relief. We very much doubt that Bond would have been entitled to such an instruction had he asked, see United States v. Markowski, 772 F.2d 358, 364 (7th Cir. 1985). The jurors must find unanimously that there were five, but demanding agreement on which five could produce unjustified acquittals. Suppose the evidence shows that the accused supervised 20 persons. Half of the jurors believe that the defendant supervised A through J beyond a reasonable doubt, and K through T more likely than not; the other half of the jury finds beyond a reasonable doubt that the defendant supervised K through T, and more likely than not supervised A through J to boot. if the jurors had to agree on which five persons, the defendant would be acquitted, even though everyone believed beyond a reasonable doubt that he supervised at least ten persons. The point of the CCE statute is to impose special punishment on those who organize or supervise a significant number of others; the identity of these others is irrelevant to any theory about why punishment should be enhanced.
Earl Bond's final argument is that he could not properly be convicted of both running a continuing criminal enterprise and of conspiring to distribute marijuana and cocaine, in violation of 21 U.S.C. § 846. The Supreme Court held in Jeffers that these statutes may not be the basis of cumulative punishment, and in Garrett that running a continuing criminal enterprise is not the "same offense" for purposes of the Double Jeopardy Clause as the three predicate felonies essential to the CCE conviction. Putting these two cases together, the prosecutor contends that the two statutes may be the basis of concurrent sentences.*fn1 Bond disagrees and asks us to vacate the sentences on the two conspiracy counts. This is not a matter of great moment to him; the sentences for the conspiracy convictions run concurrently with the CCE sentence (and at 14 years, with parole eligibility, are shorter than the CCE sentence of 25 years without parole eligibility), but we cannot avoid the contention by invoking the concurrent sentence doctrine, for the district judge imposed a special assessment of $50 on each count under 18 U.S.C. § 3013(a)(2)(A). See Ray v. United States, 481 U.S. 736, 107 S. Ct. 2093, 95 L. Ed. 2d 693 (1987).
Bond does not spell out his argument, but it must start from the holding of Jeffers that the § 846 conspiracy and § 848 CCE offense may not be the basis of cumulative punishment and proceed to the proposition that what may not be the basis of separate punishment is really different aspects of the same crime. This summons up cases such as United States v. Gaddis, 424 U.S. 544, 47 L. Ed. 2d 222, 96 S. Ct. 1023 (1976), which hold that when Congress designs alternative crimes, only one may be the basis of conviction. Gaddis and similar cases, however, rest on a conclusion that to commit one crime is to be incapable of committing the other. In Gaddis the crimes were robbing a bank and possessing the proceeds, see 18 U.S.C. § 2113; the Court concluded that a robber could not be convicted of possession, because the possession offense was designed to catch people who were not robbers but received the proceeds from the robbers. The point of Jeffers, by contrast, is that one can both conspire (agree to run a drug business) and run a continuing criminal enterprise (strike the agreement and succeed); ...