Williams v. State

MURPHY, Chief Judge. This case involves Maryland’s “Drug Kingpin Act” enacted by ch. 287 of the Acts of 1989, now codified within the provisions of Maryland Code (1992 Repl.Vol.), Art. 27, § 286. Section 286(a)(1) makes it unlawful for any person “[t]o manufacture, distribute, or dispense, or to possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to ⁴ manufacture, distribute, or dispense, a controlled dangerous substance.” Section 286(g)(2) provides that if any person violates § 286(a)(1), the violation involves inter alia “448 grams or more of cocaine,” and the person is a “drug kingpin,” that individual is subject to the penalties set forth in § 286(g). That section defines a “drug kingpin” as a person “who occupies a position of an organizer, supervisor, financier, or manager as a coconspirator in a conspiracy to manufacture, distribute, dispense, bring into, or transport in the State controlled dangerous substances.” Section 286(g)(2) provides that “[a] drug kingpin who conspires to manufacture, distribute, dispense, bring into, or transport in the State controlled dangerous substances” in amounts proscribed by § 286(f)(1) is guilty of a felony and on conviction is subject to: “(i) Imprisonment for not less than 20 nor more than 40 years without the possibility of parole, and it is mandatory on the court to impose no less than 20 years’ imprisonment, no part of which may be suspended; and (ii) A fine of not more than $1,000,000.” I. In late February 1990, the Maryland State Police launched an undercover narcotics investigation in Salisbury.

It targeted the activities of one Gary Williams (Gary), the suspected head of a drug distribution network in Salisbury, who was the older brother of petitioner Ricky Williams (Ricky). In the conduct of its investigation, the police operated from a fictitious pawnshop storefront known as “Big Bubba’s.” State Trooper Ike Jackson (Jackson) posed as a drug dealer and purchaser at Big Bubba’s; the shop was equipped with video surveillance cameras. On February 28, 1990, by arrangement of a third party, Jackson met Gary at Big Bubba’s. Gary identified himself as head of a local drug organization, named one Maurice (“Sincere”) Bomar as his lieutenant, and indicated that he ⁵ employed several others.

Gary told Jackson that he could supply him with cocaine, while expressing an interest in buying guns and marijuana from Jackson. Jackson offered to purchase two ounces of cocaine from Gary, and they agreed to complete the sale by March 7. On March 2, Gary and Jackson met again at Big Bubba’s. Gary produced slightly more than two ounces of cocaine “to show his good faith,” for which Jackson paid $2,000.

Their relationship thus established, Jackson told Gary he wanted to purchase four more ounces. On March 15, Gary phoned Jackson to offer the four ounces that Jackson desired. He told Jackson that the cocaine was of “top shelf quality,” and that on March 17 he would send Sincere to Big Bubba’s to consummate the sale. Gary also suggested that it was time to plan some serious purchases, and in that vein he called Jackson the next day from New York City to say that he could sell Jackson two kilos of cocaine.

The following day, March 17, Sincere delivered the four ounces of cocaine to Jackson at Big Bubba’s. Gary, phoning Jackson from New York to determine whether Sincere had arrived, again expressed interest in obtaining marijuana. Jackson reiterated his willingness to trade guns and marijuana for cocaine. Jackson and Gary tentatively agreed to yet another deal, their third, in which Jackson would receive one kilo of cocaine in exchange for ten pounds of marijuana, five guns, and $12,000.

Meanwhile, Jackson and Sincere haggled over the purchase price of the four ounces and found it necessary to call Gary in New York. After Gary resolved the dispute, he and Jackson agreed to complete the third sale by March 24. On March 22, Gary stopped at Big Bubba’s to inquire whether Jackson had liked the four ounces. Jackson answered affirmatively, and they renegotiated the third sale to Jackson to encompass two kilos of cocaine in return for fifteen pounds of marijuana, five weapons, and $23,000. ⁶ On March 23, Gary explained to Jackson at Big Bubba’s that he was having some difficulty obtaining the cocaine; he offered to purchase a lesser quantity of the guns and marijuana for cash.

Jackson rejected this proposal, making the guns and marijuana available only as part of a sale of cocaine. On March 30, not having heard from Gary, Jackson and Edward Toatley (Toatley), a second undercover officer posing as Jackson’s lieutenant, located Gary in Salisbury, at which time Gary said that while he still wanted to buy guns, he was no longer interested in purchasing marijuana. Jackson, Toatley, and Gary then undertook to renegotiate the terms of the transaction. Gary suggested to Jackson that Toatley, Sincere, and a female drug carrier of Jackson’s choice travel by train to New York, where at Penn Station the female “mule” would be outfitted with one kilo of cocaine in return for $28,000.

Jackson rejected this proposal. Gary then offered that, for an additional $5,000 “turnpike tax,” his younger brother Ricky would bring the “sugar” to Salisbury. Jackson accepted this offer, at which point Gary called New York and left a message for Ricky to call him back at Big Bubba’s. Ricky returned Gary’s call within a half hour.

After he and Gary spoke, Gary told Jackson that Ricky wanted $34,000 to bring the cocaine to Salisbury. Jackson agreed. For the next six or seven hours, Jackson, Toatley, Gary, and Sincere awaited Ricky’s arrival. Ricky entered Big Bubba’s at approximately 1:37 a.m. on March 31.

He asked for an additional $500 to pay Keith Walker, an individual who had driven him from New York. Ricky dropped this demand when Gary instructed him to “chill out.” Toatley then handed Ricky $34,000 in cash, which Ricky counted and hid in his car. Ricky returned with the kilo of cocaine, which he handed to Gary. At that time, he told Jackson that in the future Jackson could buy cocaine directly from him.

With the assistance of a SWAT team hidden in the back of the store, Jackson and Toatley then arrested Ricky, Gary, Sincere, and Walker. ⁷ On April 25, 1990 Ricky was indicted in a ten-count indictment, including two conspiracy counts and two counts of being a “drug kingpin” under the Maryland Drug Kingpin statute. On June 8, Ricky moved to dismiss the two kingpin counts on the ground that the kingpin statute was unconstitutionally vague. The motion was denied. On August 21, the State responded to Ricky’s motion for a bill of particulars, naming Gary and Ricky as the only conspirators in the conspiracy and drug kingpin counts.

Ricky was tried before a jury in the Circuit Court for Wicomico County on September 24 and 25, 1990. The court (Simpson, J.) granted Ricky’s motion for acquittal on two of the ten counts, including the second kingpin count (the conspiracy to transport), on the ground that they were duplicative of other counts {e.g., the conspiracy to distribute). The jury convicted Ricky on the other eight charges, including the remaining kingpin and conspiracy counts. 1 Consistent with the provisions of § 286(g)(2), the court sentenced Ricky to twenty-five years’ imprisonment, without the possibility of parole, and ordered him to pay a $10,000 fine. The court also sentenced Ricky to a concurrent thirty-year sentence on his convictions under the remaining counts.

Ricky appealed to the Court of Special Appeals, contending only that Maryland’s Drug Kingpin Act was unconstitutionally vague and, secondly, that the evidence at trial was legally insufficient to sustain his drug kingpin conviction. ⁸ That court affirmed. Williams v. State, 89 Md.App. 685 , 599 A.2d 848 (1991). We granted certiorari to consider the significant issues raised in the case.

II

Ricky first argues that the statute is unconstitutionally vague for failure to define who qualifies as an “organizer, supervisor, financier, or manager” in a drug conspiracy. He also posits that even if the statute is adequately clear on its face, it is vague as applied to the facts of this case because it is legally impossible under the statute for both persons in a two-person conspiracy to be drug kingpins. As classically stated, the void-for-vagueness doctrine requires that a penal statute “be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Connally v. General Const. Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127 , 70 L.Ed. 322 (1926).

The vagueness doctrine, rooted in the fourteenth amendment’s guarantee of procedural due process, stems from two ideas. The first is that one should not “be required at peril of life, liberty, or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453 , 59 S.Ct. 618, 619 , 83 L.Ed. 888 (1939). We have said that this is the “fair notice principle, ... that persons of ordinary intelligence and experience be afforded a reasonable opportunity to know what is prohibited, so that they may govern their behavior accordingly.” Bowers v. State, 283 Md. 115, 121 , 389 A.2d 341 (1978).

In determining whether a statute satisfies this principle, the touchstone is whether persons “of common intelligence must necessarily guess at [the statute’s] meaning.” Broadrick v. Oklahoma, 413 U.S. 601, 607 , 93 S.Ct. 2908, 2913 , 37 L.Ed.2d 830 (1973). The second rationale for the vagueness doctrine, which the Supreme Court deems “more important,” Kolender v. Lawson, 461 U.S. 352, 358 , 103 S.Ct. 1855, 1858 , 75 L.Ed.2d ⁹ 903 (1983), is to ensure that criminal statutes provide “legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation it is to enforce, apply and administer the penal laws.” Bowers, supra, 283 Md. at 121 , 389 A.2d 341 . Without such standards, penal laws would “impermissibly delegate[] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108-09 , 92 S.Ct. 2294, 2299 , 33 L.Ed.2d 222 (1972). In order to satisfy this second rationale, therefore, a statute must eschew arbitrary enforcement in addition to being intelligible to the reasonable person.

In contending that the Maryland Drug Kingpin Act violates these principles, and is therefore unconstitutionally vague, Ricky argues that it is unclear who qualifies as an “organizer, supervisor, financier, or manager” in a drug conspiracy. He suggests that, by giving an accomplice a trivial order or by taking the slightest initiative, even the lowliest of coconspirators could be deemed a “manager,” “supervisor,” or “organizer” in the conspiracy and could thus qualify as a “drug kingpin.” He says that the average person cannot ascertain the upper limit of one’s conduct before becoming a drug kingpin, and that the statute invites law enforcement officials to wield its enhanced penalties selectively. We do not agree. Relative to the usual vagueness challenge, Ricky’s assertion is clearly without merit.

The Supreme Court “has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea.” Colautti v. Franklin, 439 U.S. 379, 395 , 99 S.Ct. 675, 685 , 58 L.Ed.2d 596 (1979). This is because “the requirement of a specific intent to do a prohibited act ... relieve[s] the statute of the objection that it punishes without warning an offense of which the accused was unaware.” Screws v. United States, 325 U.S. 91, 101-02 , 65 S.Ct. 1031, 1035 , 89 L.Ed. 1495 (1945) (plurality ¹⁰ opinion). While the Maryland Drug Kingpin Act does not expressly require a specific intent to “wilfully” or “purposefully” occupy a position as an “organizer, supervisor, financier, or manager” in a drug conspiracy, the statute does, of course, impliedly necessitate a deliberate foray into some threshold of criminal drug involvement before one can reach the brink of drug kingpin status. Thus, in the same manner as specific intent statutes, the drug kingpin statute can in no way be “a trap for those who act in good faith.” United States v. Ragen, 314 U.S. 513, 524 , 62 S.Ct. 374, 379 , 86 L.Ed. 383 (1942).

See also Boyce Motor Lines v. United States, 342 U.S. 337, 340 , 72 S.Ct. 329, 331 , 96 L.Ed. 367 (1952) (It is not “unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.”). Put another way, Ricky alleges that the Maryland Drug Kingpin statute is vague as to when a low-level drug dealer becomes a high-level kingpin. But vagueness as between degrees of illegality seems less objectionable than vagueness at the margin of legality, for the former cannot snare the unsuspecting. Ricky knew his drug dealings were proscribed; the statute did not force him to speculate at his peril as to the propriety of his conduct.

Ricky’s defense is therefore less compelling than the historical vagueness challenges of defendants for whom the very stigma of a criminal conviction hung in the balance. As the Supreme Court has said, “A mind intent upon willful evasion is inconsistent with surprised innocence.” Ragen, supra, 314 U.S. at 524 , 62 S.Ct. at 379 . Ricky proceeded not uninformed of the criminality of his behavior, but merely unaware of the number of counts he might face and the number of years he might spend in prison. In any event, we conclude that the Maryland Drug Kingpin statute is not vague.

In Bowers, supra, 283 Md. 115 , 389 A.2d 341 , we upheld against a vagueness challenge a statutory definition of child abuse as “cruel or inhumane treatment.” We observed that “[a] statute is not vague when the meaning of the words in controversy can be fairly ¹¹ ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning.” See also Rose v. Locke, 423 U.S. 48, 50 , 96 S.Ct. 243, 244 , 46 L.Ed.2d 185 (1975) (“Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid.”). The Maryland Drug Kingpin statute satisfies this standard at its most basic level, for the meanings of the statute’s operative words can be “fairly ascertained by reference to ... the words themselves.” The terms “organizer,” “supervisor,” “financier,” and “manager” are not vague. They are not technical terms; rather, they are common . words with well understood meanings. As these words are defined by Webster’s Third New International Dictionary (1981), an “organizer” is “one who organizes” (to “organize” is “to unify into a coordinated functioning whole; ... to arrange by systematic planning and coordination of individual effort”).

A “supervisor” is “one that supervises a person, group, department, organization, or operation” (“supervise” is “to ... oversee with the powers of direction and decision the implementation of one’s own or another’s intentions”). A “financier” is “a large scale investor.” A “manager” is “one that manages, a person that conducts, directs, or supervises something.” Because these definitions comport with everyday understandings of the words they define, the drug kingpin statute employs language accessible to persons of common intelligence; they need not guess at the statute’s meaning. The statute makes clear, in ordinary language, that those who occupy positions of importance in drug conspiracies will be subject to heightened punishment. Nor does the statute foster selective prosecution, since its terms are as plain to law enforcement officials as to the general public.

The statute does not become unconstitutionally vague merely because it may not be perfectly clear at the margins who qualifies as an “organizer,” “supervisor,” “financier,” or ¹² “manager.” See Eanes v. State, 318 Md. 436 at 459 , 569 A.2d 604 (1990) (“A law is not vague simply because it requires conformity to an imprecise normative standard.”). Rather, the drug kingpin law plainly provides fair warning of serious consequences to drug conspirators who would assume the posture of “an organizer, supervisor, financier, or manager,” as those words are understood in common parlance. Ricky argues that the statute is vague when considered against the corresponding federal drug kingpin law and those of other states. The federal statute provides in part: “[A] person is engaged in a continuing criminal enterprise if— (1) he violates any provision of this subchapter or sub-chapter II of this chapter the punishment for which is a felony, and (2) such violation is part of a continuing series of violations of this subchapter or subchapter II of this chapter— (A) which are undertaken by such person 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, and (B) from which such person obtains substantial income or resources.” 21 U.S.C. § 848 (c) (1992).

Ricky points to the federal requirements that the manager, organizer, or supervisor act in concert with at least five others and derive substantial income from the enterprise as evidence of the specificity with which a statute must be drawn to pass constitutional muster. Ricky claims that the federal statute, by adding these further requirements to modify and refine the statute’s operative terms, demonstrates the vagueness of Maryland’s sole requirement that a person be an “organizer, supervisor, financier, or manager.” ¹³ This argument mistakes breadth for vagueness. By stiffening the penalties for those who act in the management ranks of drug conspiracies, without regard to the number or income of coconspirators, the Maryland statute simply constructs a wider net than that enacted by Congress. While