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United States v. Fernandez

argued: January 22, 1987.

UNITED STATES OF AMERICA
v.
FERNANDEZ, CARLOS EDUARDO, CARLOS EDUARDO FERNANDEZ, APPELLANT



Appeal from the United States District Court for the District of New Jersey - Newark, D.C. Crim. No. 85-00086-01.

Author: Mansmann

Before: SEITZ, BECKER, and MANSMANN, Circuit Judges.

Opinion OF THE COURT

MANSMANN, Circuit Judge.

This appeal arises from a final judgment of conviction of the appellant Carlos Fernandez for his participation in a conspiracy to import and distribute cocaine. Although Fernandez raises a number of contentions,*fn1 we are here primarily concerned with his arguments that conspiracies charged in violation of 21 U.S.C. §§ 846 and 963 may not also serve as predicate acts in the same indictment charging a violation of the continuing criminal enterprise statute, 21 U.S.C. § 848 ("CCE"), and his contention that telephone calls in violation of § 843(b) facilitating a § 846 conspiracy may not satisfy the series of violations requirement of § 848. In United States v. Grayson, 795 F.2d 278 (3d Cir. 1986) cert. denied, 481 U.S. 1018, 107 S. Ct. 1899, 95 L. Ed. 2d 505 (1987), we held that a prior conviction for a conspiracy offense may serve as a predicate act for a CCE offense. We hold now that a § 846 conspiracy may be considered by the jury as a predicate crime in the same indictment and under the same set of facts as a CCE charge under § 848. A violation of § 963 may constitute a predicate offense for a § 848 conviction as well. We hold too that telephone calls in violation of 21 U.S.C. § 843(b), made to facilitate a § 846 conspiracy, may satisfy the series of violations requirement of § 848. Accordingly, we will affirm the judgment of sentence.*fn2

II.

The offense of engaging in a continuing criminal enterprise is established in 21 U.S.C. § 848(a) and is defined in 21 U.S.C. § 848(d).*fn3 To establish guilt under this statute, the government must prove:

1) a felony violation of the federal narcotics law

2) as part of a continuing series of violations

3) in concert with five or more persons

4) for whom the defendant is an organizer or supervisor

5) from which he derives substantial income or resources.

Grayson, 795 F.2d at 283-84.

the appellant's primary contention is that the district court erred as a matter of law in charging the jury that the narcotics distribution conspiracy (§ 846) charged in Count I of the indictment could serve as the predicate, or felony violation, of the federal narcotics law (number 1 ...


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