732 F.

2d 20

UNITED STATES of America, Appellee,

v.
Kenneth CHRISTENSEN, Defendant, Appellant.
No. 83-1496.

United States Court of Appeals,

First Circuit.
Argued March 7, 1984.
Decided April 12, 1984.

Alfred P. Kremer, Rochester, N.Y., and Gerardo Ortiz Del Rivero, Federal
Public Defender, and David W. Roman, Asst. Federal Public Defender,
San Juan, P.R., on brief for defendant, appellant.
Charles E. Fitzwilliam, Asst. U.S. Atty., San Juan, P.R., with whom
Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for
appellee.
Before CAMPBELL, Chief Judge, COFFIN and BREYER, Circuit
Judges.
COFFIN, Circuit Judge.

Appellant appeals from two judgments of conviction for possession of a

controlled substance with intent to distribute in violation of 21 U.S.C. Sec.
955a(a) (Count One) and Sec. 955a(b) (Count Two). A sentence of five years
was imposed for each count, to run consecutively, and a fine of $5,000 was also
imposed for each violation. A special parole term of two years was imposed for
each violation; these terms, however, were to be concurrent. Appellant's most
substantial issue on appeal is whether this multiple conviction, or at least
multiple sentencing, violates the Double Jeopardy clause. Other alleged errors
relate to denial of appellant's Sixth Amendment right to effective assistance of
counsel and comments by the prosecutor.

I. Background

Appellant, a United States citizen and master of a Great Lakes tug, Alida, took
his vessel to Florida in search of work, and, changing most of the crew, went on
to Grand Cayman Island, and thence to a point off the Colombian coast, where
some 55,500 pounds of marijuana, valued at $11 million, were loaded from
lighters. Subsequently, the Coast Guard seized the vessel in the vicinity of the
Virgin Islands and Puerto Rico. Appellant's explanation for his involvement
after the tug reached Florida was that he was at first under the impression that
his charterers were government agents and that he was on a secret and highly
lucrative government mission. Only after leaving Grand Cayman Island did he
realize that he was in the hands of drug smugglers; from then on he was acting
under duress and with fear for himself and his family.

Appellant was arrested on December 6, 1982, indicted on December 8, and,

after several changes of appointed counsel, finally conducted his own trial on
May 9, 10, and 11, 1983, with a private court-appointed counsel and a lawyer
from the Public Defender's office assisting as standby counsel.1

II. Double Jeopardy

4

Appellant's major contention is that the four subsections of 21 U.S.C. Sec.

955a--(a), (b), (c), and (d)2 --outline only one offense, the smuggling of
controlled substances, and were enacted to close loopholes that enforcement
authorities had encountered after the inadvertent repeal, in 1970, of 21 U.S.C.
Sec. 184a, the law proscribing the use of narcotics on United States vessels on
the high seas.

Consequently, appellant argues, each section was designed to close a loophole.

Subsection (a) invoked jurisdiction over United States vessels, and forbade
possession with intent to distribute by any person thereon. Subsection (b)
invoked jurisdiction over United States citizens and proscribed their possession
with intent to distribute on any vessel. Subsection (c) rested on territorial
jurisdiction and barred any person on any vessel within customs waters from
such possession. And subsection (d) relied on the historic power to bar
possession with the knowledge or intent that the substances would be
unlawfully imported. Each, says appellant, is merely a hook for catching a fish;
there was no legislative intent to use more than one hook on a fish.

We have considerable sympathy for this argument, particularly as it might be

limited to Sec. 955a(a) and (b). That is, we find it severe that, by the mere act
of a United States citizen joining a smugglers' vessel with United States
registry, he immediately commits two crimes. He does not have the same

subsequent "choice" that lay before one, who had broken into a house, to decide
whether or not to rob the occupant, a choice which the District of Columbia
Circuit once held significant in that "the course of conduct admitted of
interruption and alteration in response to the deterrent influence of additional
punishment". Irby v. United States, 390 F.2d 432, 434-35 n. 4 (D.C.Cir.1967)
(en banc). The court accordingly held that it could not say that Congress did not
contemplate additional disincentive for robbery in addition to housebreaking.
7

This reasoning, however, does not carry us very far in this case. In the first
place, one could say that just as the housebreaker had the option to refrain from
robbing an occupant, so does the United States citizen have the option to
refrain from joining the crew of a United States vessel. In the second place, the
argument tends to carry us further than we would wish to go. Appellant here
does not distinguish the crimes described in Sec. 955a(a) and (b) from those in
(c) and (d). But the latter subsections describe discrete dangers--drug traffic in
customs waters (c) and unlawful importation (d)--which might very well be
viewed by Congress as separate crimes warranting separate punishment.

Once, however, sections (c) and (d) are recognized as stating separate crimes, it
becomes exceedingly difficult for a court to find a rationale for distinguishing
them from (a) and (b). True, (c) and (d) cover different vessel locations and, in
(d), the added ingredient of knowledge or intent as to unlawful importation,
while (a) and (b) turn on the registry of a vessel or the citizenship of a
defendant. But, if one can simultaneously violate both (c) and (d) by being on a
vessel in the requisite location and with the requisite knowledge or intent, we
see no convincing logical basis for saying a United States citizen does not
similarly violate both (a) and (b) by boarding a United States vessel.3

In short, while it is possible to say, were this a fresh question, that Congress
was addressing only one crime, smuggling, it is also possible and, in the light of
the history of both legislative and judicial dealings with the illicit narcotics
trade, more likely that Congress had in mind the equal but separate objectives
of stopping the uses of United States vessels in smuggling enterprises,
discouraging United States citizens from engaging in such enterprises,
protecting waters adjacent to the coast, and stopping participation in plans to
import. We are not able meaningfully to distinguish the case before us from
Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958),
where a single sale of narcotics was held to violate three separate crimes: sale
not "in pursuance of a written order", sale "not in the original stamped package
or from the original stamped package", and sale with knowledge of unlawful
importation. The Court said: "The fact that an offender violates by a single
transaction several regulatory controls devised by Congress as means for

dealing with a social evil as deleterious as it is difficult to combat does not

make the several different regulatory controls single and identic". Id. 357 U.S.
at 389, 78 S.Ct. at 1283.
10

Moreover, other recent decisions of courts of appeals have scrutinized the

legislative history of 21 U.S.C. Sec. 955a and have largely covered the field. In
United States v. Howard-Arias, 679 F.2d 363 (4th Cir.1982), the Fourth Circuit
upheld multiple convictions and consecutive sentencing under both Sec.
955a(a) and (d). And in United States v. Luis-Gonzalez, 719 F.2d 1539, 1547
(11th Cir.1983), the court dealt with an indictment of four counts, each count
based on a different subsection of 21 U.S.C. Sec. 955a, and held:

11

"We conclude from the unambiguous language of section 955a(a)-(d) and the
absence of any evidence of a contrary intention in the legislative history that
subsections (a) through (d) of 21 U.S.C. Sec. 955a state separate offenses for
which separate convictions may be obtained."4

12

We would not lightly disregard such holdings or, without strong countervailing
reasoning or authority, create a conflict among the circuits.

13

Finally, whatever latitude we may have had in applying the "rule of lenity" in
interpreting other laws, see O'Clair v. United States, 470 F.2d 1199 (1st
Cir.1972) (Bank Robbery Act), and whatever justification there might once
have been in seeing a weakening of "the same evidence" test of Blockburger v.
United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), see Irby, 390
F.2d at 436-37 n. 6 (Leventhal, J., concurring), we are constrained to say that
Blockburger is still alive and well. The Supreme Court in Whalen v. United
States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), applied the
Blockburger test to determine whether Congress provided for cumulative
punishments. And in Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137,
67 L.Ed.2d 275 (1981), the Court upheld consecutive sentencing for conspiracy
to import and conspiracy to distribute marijuana, noting that they were separate
statutory offenses, that different ends were at stake, that each required proof of
a fact that the other did not.5

14

Significantly, we think, the Court stated that the " 'touchstone' of the rule of
lenity 'is statutory ambiguity.' ", id. at 342, 101 S.Ct. at 1144, and that when
legislative history is silent on whether consecutive sentences can be imposed, a
court should assume "that Congress was aware of the Blockburger rule and
legislated with it in mind." Id. The Court added that "the history of the narcotics
legislation in this country 'reveals the determination of Congress to turn the

screw of the criminal machinery--detection, prosecution and punishment-tighter and tighter.' Gore v. United States, 357 U.S., at 390 [78 S.Ct., at 1283]."
Id. at 343, 101 S.Ct. at 1144.
15

In sum, we are dealing with facially separate offenses set forth in distinct
sections of a statute. We note that each of the four offenses requires proof of a
fact not required by any other. We have reviewed the legislative reports
accompanying this legislation. We see a deep-seated motive to fill loopholes
defeating prior efforts to prevent smuggling. We see no indications one way or
the other as to the pyramiding of penalties. We therefore feel constrained to say
that 21 U.S.C. Sec. 955a(a)-(d) state separate offenses, because each section
requires some factual proof not required by another, and that, there being only a
neutral record, there is no positive indication that the Congress did not desire
cumulative sentencing. United States v. Marrale, 695 F.2d 658, 662 (2d
Cir.1982).6 III. Right to Counsel

16

Appellant gathers together a number of complaints relating to counsel. Having

had a total of four counsel, he claims, principally, that when he was forced to
go to trial, the court did not make sufficient inquiry of counsel to determine if
counsel were prepared, and of appellant to determine if he fully appreciated the
difficulties in defending himself. There was also a suggestion that one of
appellant's court-appointed lawyers had a conflict of loyalties.7

17

The history of appellant and his lawyers is a carousel. Appellant was indicted
on December 8, 1982; his first lawyer was appointed on December 14, filed a
number of motions (including that which raised the double jeopardy issue we
have discussed), and withdrew on January 21, 1983. A second lawyer was
appointed on February 1, and a third on February 8. Although the former had
little to do with appellant, the latter conferred with appellant, according to
appellant's own count, on no fewer than eight occasions.

18

Finally, three months later, on May 6, 1983, a few days before trial, appellant
moved for new counsel, stating that his counsel had only wanted appellant to
plead guilty and had taken no steps to prepare for trial. The court, after hearing,
and after repeating the truism, as did the judge in United States v. Hafen, 726
F.2d 21 at 26 (1st Cir.1984), that one who acts as his own lawyer has a fool for
a client, and observing that the latest motion for continuance was merely
another ruse for delay, ordered that the case go on as scheduled, with appellant
representing himself but having the standby assistance of the last appointed
counsel as well as an attorney from the Public Defender's office. Appellant
responded that while he had no evidence or witnesses, he was personally
prepared.

19

We do not lightly second guess trial judges facing intransigent and sometimes
irrational litigants. In this case appellant had dealings with three lawyers in five
months, to no effect. We do not need to credit either appellant's claim that his
lawyers merely wanted him to plead guilty or his lawyers' claims that they were
dutifully preparing for trial. What has occupied our attention is appellant's
catalogue of things that he had wanted his lawyers to do. If there appeared to be
some obviously significant pre-trial preparation that had been ignored, we
might look more closely. But we see nothing that remotely resembles an
effective defense--past towing contracts and photographs, fuel receipts, receipt
for a new pump, a fumigation report, a plethora of charts, surveys to show size
of fuel tank, weather reports, the presence of his original crew (before the onset
of any illegal activity), the presence of attorneys who at best would be hostile
witnesses. Appellant was unable to supply addresses of three persons who had
allegedly coerced him to take the last voyage.

20

Enough time had gone by, enough attorneys had been provided and had
withdrawn, enough continuances granted, enough documents made available,
and enough admonition given to satisfy Faretta v. California, 422 U.S. 806, 95
S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Hafen, 726 F.2d 21 (1st
Cir.1984); and Maynard v. Meachum, 545 F.2d 273 (1st Cir.1976).

21

The other errors complained of deserve little comment. The prosecutor's

criticized comments fell far short of any errors that, not having been objected
to, could be said to be "plain". The supposed errors of the court were of little
moment. The instructions as a whole made quite clear the proper standard of
reasonable doubt.

22

Affirmed.

On April 6, 1983, the court had denied a motion to dismiss Count Two of the
indictment on double jeopardy grounds, in a three-page order relying on the
separate requirements of Sec. 955a(a), proof of vessel registration, and Sec.
955a(b), proof of defendant's citizenship

These sections read as follows:

"(a) It is unlawful for any person on board a vessel of the United States, or on
board a vessel subject to the jurisdiction of the United States on the high seas,
to knowingly or intentionally manufacture or distribute, or to possess with intent
to manufacture or distribute, a controlled substance.

"(b) It is unlawful for a citizen of the United States on board any vessel to
knowingly or intentionally manufacture or distribute, or to possess with intent to
manufacture or distribute, a controlled substance.
"(c) It is unlawful for any person on board any vessel within the customs
waters of the United States to knowingly or intentionally manufacture or
distribute, or to possess with intent to manufacture or distribute, a controlled
substance.
"(d) It is unlawful for any person to possess, manufacture, or distribute a
controlled substance-"(1) intending that it be unlawfully imported into the United States; or
"(2) knowing that it will be unlawfully imported into the United States."
3

This seems very similar to our holding in United States v. Tashjian, 660 F.2d
829, 844 (1st Cir.1981), that two statutes supporting a count charging mail
fraud and a count charging the use of a fictitious name in furthering a mail
fraud described separate offenses. We have no difficulty in distinguishing
United States v. Montilla Ambrosiani, 610 F.2d 65 (1st Cir.1979) in which we
chided the government for trying to convict a defendant, on the same set of
facts, for (a) concealing and (b) failing to disclose

No question survived on appeal in Luis-Gonzalez as to the propriety of

consecutive sentencing, since the trial court imposed concurrent sentences. Id.
at 1546 n. 5

We must conclude that our holding in United States v. Honneus, 508 F.2d 566,
569-70 (1st Cir.1974), that, where an agreement embraced three separate
objects--importation, distribution, and smuggling--the conspiracy was but a
single crime, is no longer good law

The Marrale court, after applying its three-step test (discrete statutory sections,
each offense requiring a unique ingredient, absence of showing of intent to bar
cumulative punishments), added a consideration that "buttressed" its
conclusion, namely, that different goals were addressed by the two statutes
involved--conspiracy to import marijuana and conspiracy to distribute it. 695
F.2d at 663-65. In the case at bar we deem it sufficient to declare that the threestep test is satisfied. Even if 21 U.S.C. Sec. 955a(a)-(d) were said to address the
same goal, e.g., smuggling, we would not feel that this would compel any
different result. In fact, however, we see several discrete goals served-preventing use of U.S. vessels, discouraging U.S. citizens, protecting customs
waters, and discouraging plans to import drugs into the United States

This latter allegation falls at the outset. Counsel from the Public Defender was
appointed to stand by at appellant's trial. A different attorney from the same
office had represented another person who had pleaded guilty and had been
sentenced. Appellant was twice told of these circumstances and asked if he
objected to the assistance of this attorney--and twice accepted the offer of help