Williams v. State

ALPERT, Judge. In this appeal, we are asked to consider whether Maryland’s drug kingpin statute is unconstitutionally vague and overbroad, and whether the evidence used to convict the appellant was insufficient as a matter of law. For reasons that we will elaborate herein, we conclude that the statute is neither unconstitutionally vague nor overbroad, and that the evidence was sufficient to warrant submitting the case to the jury. Consequently, we deny the appellant’s request to reverse his conviction under the drug kingpin statute.

FACTS Ricky Ricardo Williams (Ricky), the appellant, was indicted in a ten-count indictment that charged him, inter alia, with two counts of violating Maryland’s drug kingpin statute. See Md.Ann.Code art. 27, § 286 (Supp.1991). 1 His arrest culminated a series of events that began in late February, 1990, when the Maryland State Police (the police) launched an undercover narcotics operation targeted at Gary Williams (Gary), the appellant’s brother, whom they identified as the head of a Salisbury, Maryland drug distribution network. The operation began as a “sting” to uncover illegal fencing activities. The police set up a fictitious pawnshop and ⁶⁸⁸ used furniture business to purchase stolen merchandise, but eventually used the storefront as part of their expanded investigations into narcotics trafficking.

The police equipped the store with a video camera, and one officer posed as a drug dealer and financier (State Trooper Ike Jackson, hereinafter Jackson). On February 28, 1990, Jackson arranged through a third person to meet Gary at the store. Gary identified himself as being in charge of a drug organization, and added that he employed several people, among them his “lieutenant,” 2 Maurice Bomar (a.k.a. “Sincere”). Gary told Jackson that he could supply Jackson with cocaine and expressed his interest in buying from Jackson marijuana and firearms.

Jackson arranged to purchase two ounces of cocaine from Gary, and they agreed that they would complete the sale by March 7. Gary phoned Jackson on March 2 to tell Jackson that he had the cocaine. They met at the storefront where Gary gave Jackson more than two ounces of cocaine, the extra amount to show his good faith. Jackson paid Gary $2000, and told Gary that he wanted to purchase four more ounces.

Jackson and Gary again had telephone contact on March 15, at which time Gary indicated that he could supply Jackson four more ounces of cocaine of a higher quality than the two ounces he had already sold Jackson, and that it was time to plan some serious purchases. Gary told Jackson that on March 17 he would send Sincere to make the sale. Gary telephoned Jackson from New York City on March 16 to tell him that he could sell Jackson two kilos of cocaine. Sincere met Jackson at the storefront on March 17 and delivered to Jackson the four ounces of cocaine.

Gary telephoned from New York to find out whether Sincere had arrived. He also spoke to Jackson about the marijuana that ⁶⁸⁹ Jackson had promised him. Jackson told Gary that he would be willing to exchange guns and marijuana for cocaine; they agreed that Jackson would acquire one kilo of cocaine in exchange for ten pounds of marijuana, five guns, and $12,000. Sincere and Jackson disagreed over the price for the four ounces of cocaine.

They called Gary, and Jackson negotiated a final price with him. They agreed to complete the kilogram sale by March 24. On March 22, Gary stopped at the storefront. He and Jackson again negotiated for a large purchase, finally settling on two kilos in exchange for fifteen pounds of marijuana, five weapons, and $23,000.

The next day, Gary phoned Jackson and then proceeded to the storefront to tell Jackson that he was having trouble obtaining the cocaine. Gary asked Jackson whether he could buy a smaller quantity of marijuana and a few of the guns, but Jackson responded that he could only purchase them as part of a cocaine deal. Jackson gave Gary a marijuana sample, and Gary in turn handed this over to Sincere. On March 30, Jackson and another officer posing as Jackson’s lieutenant (Edward Toatley, hereinafter Toatley) went into Salisbury looking for Gary and Sincere.

When they found Gary, he indicated that he no longer was interested in purchasing the marijuana, but still was interested in buying guns. Jackson told Gary and Sincere to come to the storefront, which they did. Toatley testified that during negotiations, Gary told Toatley that he would “check with his brother and see when he could get us the cocaine and what the price would be — ” Gary proposed to Jackson that Sincere and Toatley travel by train to New York to meet Gary’s source at Penn Station. He also suggested that Jackson send along a “mule” 3 to carry the drugs back to Maryland.

Toatley would pay Gary’s source, whereupon Toatley, Sincere, and ⁶⁹⁰ the mule would return. Jackson and Toatley rejected this proposal. Gary told Jackson that for an additional “turnpike tax” of $5000, his younger brother Ricky would bring the cocaine from New York to Salisbury. That evening, Gary left a telephone message asking Ricky to call him at the storefront.

Ricky called back about, half an hour later and agreed to bring the drugs to Salisbury. Toatley testified that after Gary got off the phone, he told them that “his brother wanted 34 [$34,000] if he had to bring it all the way.” Jackson accepted, and for the next six or seven hours, Gary, Jackson, Sincere, and Toatley awaited Ricky’s arrival. Ricky reached the storefront some time after 1:30 a.m. on March 31. He asked for an additional $500 to pay the person who drove him down from New York, but Gary told him to drop it.

Toatley gave Ricky $34,000 in cash; Ricky counted it, then took it to the car. Jackson testified that as Ricky counted the money, he commented that Jackson and Toatley could get a kilo anytime by calling him to arrange a meeting. Ricky returned to the car, hid the money, picked up the cocaine, went back inside, and handed the drugs to Gary. Jackson and Toatley, with the assistance of a SWAT team hidden in the back of the store, arrested Ricky, Sincere, Gary, and Ricky’s driver.

Ricky was indicted on April 25, 1990 on the charges enumerated supra. On June 8, he filed a motion to dismiss the indictment’s two drug kingpin counts. He also moved to dismiss counts two and ten (the second drug kingpin charge and the second conspiracy charge) on the ground that they duplicated counts nine and ten. Judge Alfred Truitt heard Ricky’s motions on August 10, 1990, and concluded that the drug kingpin statute was constitutionally sufficient.

He therefore denied Ricky’s motion to dismiss the two kingpin counts, and denied Ricky’s motion to dismiss counts two and ten as duplicative of counts one and nine. Ricky was tried on September 24 and 25,1990. When the State finished presenting its evidence, the trial court ⁶⁹¹ (Simpson, J.) granted Ricky’s motion for acquittal on counts two and ten: he found that they duplicated counts one and nine. The court denied Ricky’s motion for judgment of acquittal as to count one, finding that the evidence was sufficient to warrant a jury determination as to whether Ricky was a drug kingpin within the statute’s meaning.

The jury convicted Ricky on all remaining counts, including the drug kingpin count. The trial judge sentenced Ricky as a “drug kingpin” to twenty-five years incarceration without possibility of parole. The judge also ordered Ricky to pay a $10,000 fine pursuant to the same count. Ricky now appeals his conviction, and presents the following questions for our review.

I. Is the Maryland drug kingpin statute unconstitutionally vague insofar as it fails to define what an organizer, supervisor, manager or financier of a drug conspiracy is, and is that statute unconstitutionally overbroad insofar as it encompasses by its terms conduct which the legislature could not possibly have intended to be punished by the severe mandatory penalties of the statute?

II

Was the State’s evidence sufficient to support Appellant’s conviction as a drug kingpin when the uncontroverted evidence established that his only involvement whatsoever in any drug conspiracy was to drive cocaine from New York to Salisbury at his kingpin brother’s request on the night of Appellant’s arrest? MARYLAND’S DRUG KINGPIN STATUTE Maryland’s Drug Kingpin statute in part provides the following. (a) [IJt is unlawful for any person: (1) To manufacture, distribute, or dispense, or to possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance; ⁶⁹² (f)(1) If a person violates subsection (a)(1) of this section and the violation involves any of the following controlled dangerous substances, in the amounts indicated, the person is subject to the penalties provided in paragraph (3) of this subsection upon conviction: (ii) 448 grams or more of cocaine or 448 grams or more of any mixture containing a detectable amount of cocaine; ... (g)(1) In this subsection, “drug kingpin” means 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.

(2) A drug kingpin who conspires to manufacture, distribute, dispense, bring into, or transport in the State controlled dangerous substances in one or more of the amounts described under subsection (f) of this section 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. Md.Ann.Code art. 27, § 286 (Supp.1991). The statute came into effect on July 1, 1989. 1. Whether the Statute is Unconstitutionally Vague The appellant argues that the statute is unconstitutionally vague in that it does not describe how to determine whether an accused person is a drug kingpin.

In particular, the words “organizer, supervisor, financier, or manager as a coconspirator in a conspiracy” are not sufficiently explicit to ensure that persons adequately understand what the legislature proscribes. The appellant urges us to compare Maryland’s statute with a similar federal statute in which ⁶⁹³ the language arguably is more precise in that it refers to the kingpin as the “principal” actor. See 21 U.S.C. § 848 (b) (1988). 4 He argues that he cannot be a kingpin if the word “principal” is implied in Maryland's statute because his role in the transaction was limited to assisting his brother Gary by bringing the cocaine from New York to Salisbury. The appellant concludes that unless the court reads this or similar language into the statute, the statute is unconstitutionally vague.

We disagree. For the sake of clarity, if not brevity, we here reproduce the federal statute: § 848. Continuing criminal enterprise (a) Penalties; forfeitures Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 20 years and which may be up to life imprisonment, to a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $2,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, and to the forfeiture prescribed in ... this title; except that if any person engages in such activity after one or more prior convictions of him under this section have become final, he shall be sentenced to a term of imprisonment which may not be less than 80 years and which may be up to life imprisonment, to a fine not to exceed the greater of twice the amount authorized in accordance with the provisions of title 18 or $4,000,000 if the defendant is an individual ⁶⁹⁴ or $10,000,000 if the defendant is other than an individual, and to the forfeiture prescribed [elsewhere] in this title. (b) Life imprisonment for engaging in continuing criminal enterprise Any person who engages in a continuing criminal enterprise shall be imprisoned for life and fined in accordance with subsection (a) ... if— (1) such person is the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders; and (2) (A) the violation ... involved at least 300 times the quantity of a substance described in ... this title, or (B) the enterprise, or any other enterprise in which the defendant was the principal or one of several principal administrators, organizers, or leaders, received $10 million dollars in gross receipts during any twelvemonth period of its existence for the manufacture, importation, or distribution of a substance described in ... this title.

(c) “Continuing criminal enterprise” defined For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if— (1) he violates any provision of this chapter ... the punishment for which is a felony, and (2) such violation is a part of a continuing series of violations of this subchapter— (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