United States v. Tito Juan Pino-Perez
1989 WL 25499, 870 F.2d 1230, 1989 U.S. App. LEXIS 3715 (1989)
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Rule of Law:
A person who is not a supervised employee of a Continuing Criminal Enterprise (CCE) can be convicted for aiding and abetting the CCE's kingpin under 18 U.S.C. § 2(a). Such an individual is punishable as a principal and is therefore subject to the same mandatory minimum penalties as the kingpin.
Facts:
- Harold Nichols headed a drug ring that operated in southern Wisconsin.
- Pino-Perez was the primary and long-term cocaine supplier for Nichols's enterprise.
- Pino-Perez was a significantly larger drug dealer than Nichols, the designated 'kingpin' he was supplying.
- Pino-Perez sold large quantities of cocaine to the Nichols enterprise, with single transactions involving multiple kilograms and payments of tens of thousands of dollars.
- Pino-Perez and the Nichols enterprise had planned a future sale of 20 kilograms of cocaine.
Procedural Posture:
- Pino-Perez was charged in a federal indictment for, among other things, aiding and abetting a Continuing Criminal Enterprise.
- Following a trial in a U.S. District Court, Pino-Perez was convicted.
- The district court judge sentenced Pino-Perez to 40 years in prison for aiding and abetting the CCE violation.
- Pino-Perez appealed his conviction to the U.S. Court of Appeals for the Seventh Circuit.
- The full Court of Appeals decided to hear the case en banc to resolve the question of aider and abettor liability under the CCE statute.
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Issue:
Does the federal aider and abettor statute, 18 U.S.C. § 2(a), apply to the Continuing Criminal Enterprise ('kingpin') statute, 21 U.S.C. § 848, allowing for the conviction of a person who assists but is not managed by the kingpin?
Opinions:
Majority - Judge Posner
Yes, the federal aider and abettor statute applies to the kingpin statute. The aider and abettor statute, 18 U.S.C. § 2(a), automatically applies to every federal criminal offense unless Congress creates a specific exemption. The legislative history of the CCE statute (§ 848), which converted it from a sentence-enhancement provision to a distinct offense, was intended to provide greater procedural protections for defendants, not to preclude aider and abettor liability. While certain accomplices, such as the kingpin's own supervised employees, are exempt from aider and abettor liability, an outside supplier does not fall into any recognized exception. Furthermore, because § 2(a) makes an aider and abettor 'punishable as a principal,' they are subject to the same mandatory minimum sentences prescribed by the underlying criminal statute, which in this case is the CCE statute.
Dissenting - Judge Easterbrook
No, the aider and abettor statute should not apply to the kingpin statute. Applying aider and abettor liability to § 848 undermines the structure of federal drug laws. It demolishes the graduated penalty scheme of 21 U.S.C. § 841, which punishes suppliers based on drug quantity. It also requires the creation of an extra-statutory exception for the kingpin's own employees, leading to a 'crazy-quilt pattern of liability' where an outside supplier could be punished more harshly than more important internal operatives. The legislative history shows § 848 was made a substantive crime for procedural reasons, not to expand its reach to accomplices, and its purpose is to punish the 'top brass,' not their assistants.
Dissenting - Judge Cudahy
No. This opinion fully joins Judge Easterbrook's dissent regarding the inapplicability of the aiding and abetting statute to the Continuing Criminal Enterprise statute. The CCE statute is aimed at defendants who occupy the specific status of a 'kingpin,' and applying aider and abettor liability is inconsistent with this targeted focus.
Analysis:
This decision reaffirms and strengthens the broad applicability of the federal aider and abettor statute, clarifying that it attaches to status-based offenses like the CCE statute. By explicitly overruling part of its prior precedent in Ambrose, the court holds that aiders and abettors are subject to the same mandatory minimum sentences as the principal offenders, rejecting judicial attempts to mitigate harsh penalties. This creates a circuit split with the Second Circuit's decision in Amen, increasing the prosecutorial power to charge peripheral actors in drug conspiracies with the most serious offenses and exposing them to severe, inflexible punishments.
