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The U.S. Supreme Court’s requirement that each violation in a “continuing criminal enterprise” be proven beyond a reasonable doubt in a racketeering case is a substantive change in the law that can have retroactive effect, a federal judge has ruled. Senior Judge Robert J. Ward of the U.S. District Court for the Southern District of New York said the rule announced by the nation’s highest court in Richardson v. United States, 526 U.S. 813 (1999), which formed the basis for a habeas corpus petition filed by prisoner Peter Monsanto, prompted Ward to re-examine his jury charge in the 1988 trial that ended with Monsanto’s conviction. But even though Judge Ward came to the conclusion that his jury charge was “erroneous” in Monsanto’s case, he nevertheless found that ample evidence supported a conviction in Monsanto v. U.S., 97 Civ. 4700. Monsanto and co-defendants were charged with murder, distributing narcotics, operating a criminal enterprise, and several other charges under the Racketeer Influenced and Corrupt Organizations Act (RICO). One count accused Monsanto of operating a “continuing criminal enterprise” (CCE) in violation of 21 U.S.C. Section 848, which requires a minimum of three “violations.” Ward said that he “did not instruct the jury that it had to unanimously agree on which narcotics violations comprised the ‘series of violations’ under the second element of the CCE charge.” Instead, the jury was told that it could look to the narcotics violations charged in the indictment, he recalled, “as well as acts that were not charged in the indictment, but which were proven by the government.” Following his conviction on the CCE and other charges, Monsanto unsuccessfully appealed to the 2nd U.S. Circuit Court of Appeals. While Monsanto’s habeas petition was pending, the U.S. Supreme Court decided Richardson, holding that “a jury in a federal criminal case brought under Section 848 must unanimously agree not only that the defendant committed some ‘continuing series of violations’ but also that the defendant committed each of the individual ‘violations’ necessary to make up that ‘continuing series.’ “ In light of Richardson, Judge Ward first concluded that the Supreme Court had announced a substantive change in the law and not merely a new rule of criminal procedure. That distinction, he said, allowed Monsanto to seek retroactive relief. “Monsanto’s interest in having his claim reviewed is especially compelling because it was his legal position, raised but not addressed on direct appeal, that was vindicated in Richardson,” Ward said. Ward said that in his view, while the Supreme Court has not ruled on the issue, an error under Richardson does not trigger automatic reversal, but instead should be reviewed under harmless error analysis. Under that analysis, he said, a court should vacate a conviction unless the government can prove beyond a reasonable doubt that the error did not contribute to the verdict. Here, Ward said, the jury had found, unanimously, that Monsanto was guilty of conspiracy to distribute heroin and possession of heroin with intent to distribute at one location. But the jury also found Monsanto not guilty on a second count of possession of heroin with intent to distribute, he said. “Thus, it is clear from the verdict form that the jury found that Monsanto had committed at least two predicate narcotics offenses,” he said. “The question remaining then is whether the jury would have found that Monsanto committed at least one additional narcotics violation absent the Richardson error.” Re-examining the testimony at trial, Ward said he was persuaded that his error was harmless. “Having sat through the presentation of the evidence, it is the court’s view that the jury would have unanimously found that Monsanto engaged in at least one additional violation of the narcotics laws as a predicate to the ‘continuing series of violations’ element of the CCE charge,” he said. Colleen P. Cassidy of the Legal Aid Society represented Monsanto. Assistant U.S. Attorney Anirudh Bansal represented the government.

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