KISH DID HE SAY 98ED COUNSEL FOR MR. COOPER. JENNIFER O. FARINA: JEN NIR
FER FAR MEAN YO CRIMINAL DEFENSE LAWYERS OF NEW JERSEY. MILTON S. LEIBOWITZ:
MILTON S LEIBOWITZ OVEN BEHALF OF STATE. THE COURT: WELCOME, KOUVEN SELL,
MR. KIR. STEPHEN W. KIRSCH: IF THE PLEASE THE COURT I ASK SFOR 2 MINUTES
OF REBUTTAL IF, I MAY. YOUR HONOR'S WHENEVER THE LADIES AND GENTLEMEN CHER DRAFTS OR
PASSES A CRIMINAL STATUTE AND INSERTS INTO THAT STATUTE OF PREDICATE OFFENSE, THEY DO
IT ONE OF TWO WAYS. MUCH LESS COMMON WAY IS TO USE A CATCH PHRASE, ORIGINALLY THE NERA
STATUTE WHEN IT WAS FIRST PASSED IT SAID ANY VIOLENT CRIME. IN STATE VERSE LENAHAN THIS
COURT BELT WITH A SITUATION WHERE THE COURT HAD TO INTERPRET WHAT AN OH FEPS IN VIOLATION
OF PUBLIC SAFETY WOULD BE. THAT PARTICULAR METHODOLOGY REQUIRES THIS COURT OR SOME
APPELLATE COURT TO STEP IN AND DETERMINE WHAT THAT MEANS. DETERMINE WHAT STATUTES FIT
THAT BILL, WHAT ONES DON'T. THE MUCH MORE COMMON WAY IS WHAT WAS DONE HERE
WHICH IS TO ENUMERATE THE SPECIFIC PREDICATE OFFENSES. OF THIS COURT HAS ALSO BEEN CLEAR
100 PERCENT OF THE TIME THAT WHEN THE LEGISLATURE ENUMERATES THE OFFENSES THAT WAY, THAT
IS THE LIST, IT ISN'T ANY BIGGER AND IT ISN'T ANY SMALLER, YOU DON'T ADD TO THE LIST BS
YOU DON'T SUBTRACTS FROM IT. IN THIS PARTICULAR CASE, THE CRIME AT ISSUE
IS 30-30. PROMOTING ORG MIEFD STREET CRIME. THAT IS A SPEARS DEFENDANT (33-30) THE
DEFENDANT AND AT LEAST 2 OTHER PEOPLE WITH DEFENDANT IN A ROLE THAT WE ARE SOMEWHAT
FAMILIAR WITH FROM THE KINGPIN STATUTE, AS AN ORGANIZER, SUPERVISOR, FINANCIER, MANAGER,
ETCETERA. TO COMMIT ONE OF THE PREDICATES, EVERY SINGLE ONE OF THOSE PREDICATES IS A
SUBSTANTIVE CRIME. CONSPIRACY IS NOT LISTED AS ONE OF THOSE PREDICATES. KNOW,
WHY WOULD THAT BE? IF YOU GO GAK TO THE CONSPIRACY STATUTE, 2 C 5-2, IT COVERS A LOT
OF GROUND, COVERS A LOT OF POSSIBLE SPEARS CONSPIRACIES. IT DOES NOT CURVE A CONSPIRACY
TO CONSPIRE. IN THIS PARTICULAR CASE, T HOW DID THIS PLAY OUT? TRIAL JUDGE
GOES TO CHARGE THE JURY OR HAS A CHARGE CONFERENCE, LOOKS AT COUNT 4, 33-30, SEES
THAT WHAT THE STATE HAS DONE IS INDICT IN A VERY SLOPPY MANNER. THEY HAVE PUT AS THE
PRESIDENT CAN THE OFFENSE OF 33-30 RACK KEERING UNDER 2C:41-2. RACKETEERING ISN'T ON THE
LICHLT EVERYONE AGREES RACKETEERING IS NOT A PREDICATE OF 33-30. SO WHAT THE JUDGE DOES,
I DON'T HAVE A PROBLEM GENERICALLY WITH IT, BUT I DO HAVE A PROBLEM WITH THE SPECIFICS.
AND WHAT I MEAN BY THAT IS A JUDGE LOOKS AT THAT PARTICULAR ARE INDICTMENT, THAT PARTICULAR
COUNT AND SAYS WHAT IS THE DEFENDANT ON NOTICE OF? THAT'S OKAY. AND THE JUDGE DECIDES
THE DEFENDANT IS ON NOTICE OF RACKETEERING AS THE PREDICATE, SO WE'RE GOING FO GO TO THE
RACKETEERING COUNT AND WE'RE GOING TO TAKE THOSE PREDICATE OFFENSES AND IMPORT THEM IN
OVER HERE, INTO 33-30. SO FAR THAT'S OKAY IF THOSE ARE ACTUALLY PRESIDENT CAN THE OFFENSES
OF 33-30. THE PROBLEM IS THE THREE PREDICATES OF RACKETEERING HERE ARE CONSPIRACY TO
MURDER, SUBSTANTIVE AGGRAVATED ASSAULT AND CONSPIRACY TO DISTRIBUTE DRUGS. ONLY ONE OF
THOSE IS A VALID 33-30 PREDICATE. CONSPIRACY TO COMMIT THE SUBSTANTIVE CRIME OF AGGRAVATED
ASSAULT. ULTIMATELY, THE DEFENDANT GETS ACQUITTED OF THE CONSPIRACY STO FURT
M HURT RS OF A PREDICATE AND CONVICTED ONLY OF CONSPIRACY TO DISTRIBUTE DRUGS AS A PREDICATE
CRIME OF A CONSPIRACY AMONG TWO OR MORE PEOPLE ACTING AS AN ORGANIZER,S FINANCIER, MANAGER,
ETCETERA, TO COMMIT A CONSPIRACY TO DISTRIBUTE DRUGS. NOW, WHAT SDCH MEAN?
THE AN AGREEMENT, AS ALL CONSPIRACIES ARE AGREEMENTS, TO DO SOMETHING IN THE FUTURE OR,
CONSPIRACIES UPTS 5-2 TO DO A, COMMIT A SUBSTANTIVE CRIME, INSTEAD THIS IS AN
AGREEMENT TO AGREE. IS THAT WRONG? YEAH. IS IT CHARGING A ARE PREDICATE OH FEPS THAT
ISN'T ON THE LIST, YEAH. SO IN ANY CRIMINAL APPEAL, THIS COURT IS GOING TO HAVE TO DECIDE
THREE THINGS, WAS THERE ERROR, WAS IT HARMFUL, IF IT WAS HARMFUL, WHAT'S THE REMEDY, WHERE
THE STATE IS HANGING ITS HAT HERE, I THINK ENTIRELY, IS ON THE NOTION THAT THIS WAS NO
BIG DEAL, IT MIGHT HAVE BEEN A MISTAKE BUT IT WASN'T HARMFUL. HERE IS WHY THAT'S WRONG.
AN AGREEMENT TO COMMIT A SUBSTANTIVE CRIME OF DRUG DISTRIBUTION, MEANS TWRO
BET FOG WE'RE GOING TO DO THIS THING IN FUTURE SOMETIME. THE PROBLEM IS HERE THE AGREEMENT
IS NOT TO COMMIT THE UT MILT KRIEMENTS' JUST TO AGREE THAT LATER WE'RE GOING TO DO THAT.
NOW, THAT'S ONE STEP REMOVED. IT IS A DIFFERENT ACT, IT IS AN AGREEMENT SIMPLY TO AGREE.
WE'VE ALL SAID IT AT SOME POINT; WE'RE GOING TO AGREE TO AGREE LATER. THAT'S WHAT WAS
CHARGED HERE AS THE UNDERLYING PREDICATE. NOW, WHAT DOES THAT MATTER GENERALLY?
BECAUSE THE WRONG, DEFENDANT WAS CONVICTED OF A CRIME THAT DOESN'T EXIST. MORE SPECIFICALLY,
IN THIS PARTICULAR CASE, DID THAT HARM THE DEFENDANT'S CASE? YEAH. BECAUSE THE JURY
RECEIVED AN INSTRUCTION THAT SAID AN AGREEMENT TO AGREE WOULD BE GOOD ENOUGH. LOOK AT THE
WAY THE STATE TRIED ITS CASE. WHEN YOU'RE EVALUATING HARM HERE AND THIS IS NOT A
CRITICISM THE WAY THE STATE TRIED ITS CASE BUT THEY CHOSE A PARTICULAR PATH THEY HAVE TO
LIVE WITH IT ON TRIAL AND APPEAL. WHAT THEY DID HERE WAS INSTEAD OF SOME MORE TYPICAL
RECROSS COMPANY PROSECUTION PRETD A TURN COAT WITNESS OR AN UNDERCOVER ROP, THOSE PEOPLE
WOULD GO INTO THE ORGANIZATION AND REPORT ON WHAT THEY SAW AND HEARD. HERE YOU HAVE PHONE
CALLS AND PHONE CALLS AND PHONE CALLS. THREE HUNDRED SOME PHONE CALLS ARE PLAYED FOR
THE JURY. THERE IS NO TURN COAT WITNESS, THERE IS NO UNDERCOVER COULD THAT COP, DO THEY
MENTION HEROIN, COCAINE, MARIJUANA, EXPLICITLY? NO. THEY TALK IN OF OTHER TERMS, THE
STATE WANTS YOU TO BELIEVE THAT THOSE ARE CODE WORDS, OKAY, THEY CAN MAKE THAT ARGUE:
OF BUT WHAT DID THE YOU'RE, WHAT COULD THE JURY HAVE DONE HERE WITH THIS? THERE
WERE MANY, MANY, MANY PHONE CALLS. BETWEEN DEFENDANT AND A NUMBER OF DIFFERENT PEOPLE.
THINGS LIKE SOMETIMES WE'RE GOING TO NEED MORE OF THE WHITE GIRL OR WHITE BOY, MEANLY
ALLEGED THE COIN OR COCAINE. IS THAT A CONSPIRACY TO DISTRIBUTE DRUGS, MAYBE, THE
JURY COULD FIND THAT, I GUESS. BUT WHAT COULD THEY ALSO FIND, THEY COULD ALSO FIND I DON'T
KNOW IF THEY ACTUALLY GREEZ TO A SUBSTANTIVE CRIME BUT THEY CERTAINLY AGREED TO AGREE AND
THAT'S WHERE THE HARM IS HERE. SUBSTANTIVE CRIME PREVEN THIS JURY WAS TOLD YOU MUST KURN
A GULT TEE VERDICT IF YOU FIND AN AGREEMENT BETWEEN DEFENDANT AND TWO OR MORE PEOPLE WITH
DEFENDANT ACTING IN ONE OF THOSE KINGPIN KIND OF ROLES TO AGREE TO DISTRIBUTE DRUGS.
COULD THAT HAVE HURT THIS CASE? ABSOLUTELY IT COULD HAVE HURT THIS CASE, THAT COULD HAVE
RESULTED, THAT HAS THE CLEAR CAPACITY THIS CHARGE TO AFFECT THIS VERDICT AND CONVICT MY
CLIENT OF A CRIME THAT DOESN'T EXIST. JUSTICE WAINER APTER: A SPEARS TO
CONSPIRE IS NOT AN AGREEMENT TO AGREE AT SOME LATER TIME, INSTEAD OF IT'S AN AGREEMENT
BY 2 OR MORE PEOPLE THAT THEY ALREADY HAVE AGREED. STEPHEN W. KIRSCH:
THAT IS THE STATE'S ARGUE. AND PAGE 11 OF ITS BRIEF. THAT IS 100 PERCENT WRONG AND HERE
IS WHY. A CONSPIRACY IS AN AGREEMENT TO DO SOMETHING IN THE FUTURE, ORDINARILY THAT
THING ALL THE TIME IS COMMISSION OF A SUBSTANTIVE OFFENSE. WHEN YOU AGREE TO ARE COMMIT
THAT SUBSTANTIVE OFFENSE, HAS THAT SUBSTANTIVE OFFENSE ALREADY OCCURRED? NO. (SUBSTANTIVE
OFFENSE) SO HAD THE AGREEMENT IS MERELY TO AGREE TO SUBMIT A SUBSTANTIVE OFFENSE, HAS THAT
SECOND DEGREE VR SECOND AGREEMENT ALREADY OCCURRED NECESSARILY? NO, NOT ANY MORE THAN
AN ORDINARY CONSPIRACY. THE STATE SEEMS TO BE SAYING THAT WHEN YOU CONSPIRE TO SOMETHING,
THAT SOMETHING HAS ALREADY OCCURRED? THAT'S NOT NORMALLY TRUE. CONSPIRACY IS ABOUT FUTURE
ACTION. THE PROBLEM HERE IS THE FUTURE ACTION IS NOT A SUBSTANTIVE CRIME AS CHARGED TO THE
JURY. IT WAS JUST ANOTHER AGREEMENT. P. NOW, WE HAVE AN ERROR, WE HAVE
HARM, CLEAR CAPACITY TO INFLUENCE A VERDICT FOR A CRIME THAT DOESN'T EXIST. WHAT'S THE
REMEDY? I SAY THIS SOMEWHAT SHEEP ISSUELY I ASKED FOR THE WRONG REMEDY IN THE APPELLATE
DIVISION. I WAS RAISING MULTIPLE JURY INSTRUCTION ERRORS, THE ORDINARY 99 TIMES OUT
OF 100, PROBABLY MUCH MORE THAN THAT, THE OR NAER REMEDY FOR A MISS FIRE ON A JURY INSTRUCTION
IS A REVERSAL, REPLANNED AMANNED REMAND FOR A NEW TRIAL. AS I WAS TYPING UP THE BRIEF
IN THIS COURT DEALING ONLY WITH THIS PARTICULAR JURY INSTRUCTION ERROR, I STARTED TO TYPE
REVERSE AND REMAND FOR A NEW TRIAL. I THOUGHT WHAT ARE WE RETRYING, NOT RETRYING 33-30 WITH
ONE OF THE OTHER PREDICATES BECAUSE DEFENDANT WAS ACQUITTED OF THOSE. ARE WE GOING TO
RETRY HIM ON THAT A PREDICATE THAT ISN'T A CRIME? NO. IS HE ON NOTICE OF ANY OTHER PREDICATE?
NO. NOW, WHAT THE -- CHIEF JUSTICE RABNER: THE RELIEF YOU
SEEK, IF I UNDERSTAND IT CORRECTLY, IS THAT THE CONVICTION ON COUNT 4 BE STRICKEN.
STEPHEN W. KIRSCH: YES. CHIEF JUSTICE RABNER: THERE BE NO RETRIAL ON
THAT COUNT. STEPHEN W. KIRSCH: YES. CHIEF JUSTICE RABNER:
HAVE WE MADE THINGS A LITTLE TOO COMPLICATED IN TERMS OF THE ERROR, HARM AND REMEDY IN THIS
SENSE, YOUR ARGUMENT TO THE COURT IS RP THIS DEFENDANT WAS COULDN'T VIKTDED OF A CRIME
THAT DOESN'T EXIST. STEPHEN W. KIRSCH: RIGHT. CHIEF JUSTICE
RABNER: HE WAS SENTENCED TO JAIL FOR A CRIME THAT DOESN'T EXIST. STEPHEN W.
KIRSCH: RIGHT. CHIEF JUSTICE RABNER: ISN'T THAT THE END OF THE HARM
ANALYSIS? HOW CAN THAT BE HARMLESS ERROR IF YOUR POSITION IS CORRECT? STEPHEN W.
KIRSCH: IT CAN'T BE, WHEN I WAS. CHIEF JUSTICE RABNER: YOU NIED WE DON'T
NEED TO LOOK AT THE CALLS, WE DON'T NEED TO LOOK FOR THE POTENTIAL FOR CONFUSION. IF
SOMEBODY WENT TO JAIL FOR A CRIME THAT DOESN'T EXIST, THAT ARE ANSWERS THE QUESTION OF
WHETHER THE ERROR WAS HARMFUL. STEPHEN W. KIRSCH: YES, AND I THOUGHT I WAS
SAID AT THE BEGINNING OF MY HARMLESSNESS ARGUMENT BUT MAYBE I PASSED OVER IT, WHICH IS
THE INITIAL HARM IS BEING CONVICTED OF A CRIME THAT DOESN'T EXIST. HOWEVER, IF YOU DELVE
INTO THE SPECIFICS OF THIS CASE, YOU CAN ABSOLUTELY HOW THAT HAPPENED THROUGH THIS
CHARGE AND THROUGH THIS EFDZ AND THAT WAS MY POINT IN TERMS OF, LOOKING REEL APPEARS TO
HAVE INFLUENCED THE VERDICT HERE ABOVE AND YOBD THE MORE GENERIC VERSION OF ERROR OR THE
HARM THAT YOUR HONOR IS SPEAKING OF. IN TERMS OF REMEDY, HE CAN ONLY BE
RETRIED FOR SOMETHING HE WAS INDICTED FOR. HE WAS ONLY INDICTED WITH NOTICE OF TWO
CONSPIRACIES THAT SHOULDN'T HAVE BEEN PREDICATES AND ONE SUBSTANTIVE CRIME THAT WAS A KRED
KIT. AS I UNDERSTAND THE STATE'S ARGUMENT AT THE VERY END OF THEIR BRIEF,
NO, SEND HIM BABLG FOR A RETRIAL, I THINK THEY'RE TALK ABOUT RETRYING HIM WITH THE PREDICATE
OF ADDITION BUGS, ACTUALLY SUBSTANTIVE DISTRIBUTION AS THE PREDICATE CRIME, THAT'S
NOT INDICTED. THIS JURY NEVER CONSIDERED THAT AS A 33-30 PREDICATE. BECAUSE, REMEMBER,
33-30 IS NOT JUST AN ORDINARY CONSPIRACY, IT'S A CONSPIRACY WITH 2 OR MORE OTHER PEOPLE
ACTING AS A KINGPIN LIKE PERSON, FINANCIER, MANAGER, SUPERVISOR, ETCETERA, TO COMMIT THE
PREDICATE. DID THIS GRAND JURY INDICT DEFENDANT FOR OF ACTUAL SUBSTANTIVE DRUG DISTRIBUTION
AS THAT PREDICATE OF 33-30? NO, THEY DIDN'T. JUSTICE WAINER APTER: WAS
YOUR CLIENT CONVICTED OF DRUG DISTRIBUTION. STEPHEN W. KIRSCH: I DON'T THINK
HE WAS, I THINK HE WAS CONVICTED IN COUNT 23 HE WAS CONVICTED OF CONSPIRACY TO DISTRIBUTE
DRUGS HOWEVER I WILL NOTE TO YOUR HONOR THAT IS A VERY DIFFERENT KIND OF SPEARS OH, BETWEEN
1 AND OTHER PERSON, IT REQUIRES NONE OF KINGPIN TYPE ELEMENTS. JUSTICE WAINER
APTER: THE OPENLY #0D COULDN'T VIKDZ WAS FOR POSSESSION OF COCAINE, COUNT 11, RIGHT?
SO THERE WAS NO CONVICTION ON COUNT TWEFRL OR 13 WHICH WOULD HAVE BEEN THE TWUL DISTRIBUTION
OFFENSES. STEPHEN W. KIRSCH: RIGHT AND COMPLOELT IGNORING WHAT AP POOR
TO BE THE ADVICE OF THE CHIEF I'LL GO ONE STEP, YOU'RE ACTUALLY CORRECT THAT'S THE SIMPLE
ANSWER THE EVEN MORE COMPLICATED ANSWER EVEN IF HE HAD BEVEN CONVICTED OF DISTRIBUTION
OF JUDGE THE GRAND JURY DID NOT CONSIDER THAT HAS A 33-30 ELEMENT WAS THEY WOULD HAVE
HAD TO CONSIDER ALL THE OTHER ELEMENTS OF 33-30, THE MORE THAN TWO PERSON CONSPIRACY,
THE KINGPIN ELEMENT, ALL OF THAT WITH RESPECT TO ACTUAL SUBSTANTIVE DRUG DISTRIBUTION.
SO THERE'S NOTHING LEFT TO RETRY. UNLESS YOUR HONOR'S HAVE ANYTHING ELSE.
CHIEF JUSTICE RABNER: BEFORE YOU SIT DOWN, TELL US YOUR POSITION ON THE LINE OF CASES
FROM THE THIRD CIRCUIT, THE LINE OF CASES IN THIRD CERTIFICATE, PUN JI TORE THE MOTION
OF CONSPIRACY TO SPOOIRS, ARE YOU FAMILIAR WITH PUNCH JI TORE. STEPHEN W.
KIRSCH: I AM NOT. CHIEF JUSTICE RABNER: THEN THAT'S THE ANSWER. OTHER WEGSS
ANYONE? THANK YOU MR. FAR. ARE MS. FARINA. JENNIFER O. FARINA: . GOOD MORNING,
URGES AND MAY IT PLEASE THE COURT, MY NAME IS JEN FER MCCARTER AND ENGLISH AND WE REPRESENT
FRIEND OF THE COURT, THE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS OF NEW JERSEY. T I WILL
ENDEAVOR NOT TO REPEAT THE POINTS ABLY MADE BY MR. KIRSCH BUT I WOULD LIKE TO EMPHASIZE
WHY THE ISSUE BEFORE THE COURT TODAY HAS BROUGHT IMPORTANCE AND WORDS ARTICULATING A CLEAR,
GENERAL RULE. IF ALLOWED TO STAND, THE STATE'S INTERPRETATIVE APPROACH WILL
UNDERMINE FUNDAMENTAL CAN NANS OF STAPT TOWER CONSTRUCTION AND COULD INTRODUCE AMBIGUITY
INTO ALL MANNER OF STATUTES WITH PRESIDENT CAN THE OFFENSES. SO WE CAN THE COURT TO STEP
IN AND MAKE SURE THAT THAT DOES NOT HAPPEN. IN OUR VIEW, THE JURISPRUDENCE
NN STATE ALREADY ESTABLISHES WHERE A CRIMINAL STATUTE CONTAINS A LIST OF KRED KITS THE
LIST MUST BE LILTS MD TO ITS PLAIN MEAN AND NOT EX SPVEN ND WITH IMPLICATION. WE CITED
OWES CASES IN OUR BRIEF, THE DEFENSE CITED THOSE CASES IN ITS BRIEF AND YET WITH WE FIND
OURSELVES TODAY IN A SITUATION WHERE THE STATE IS ATTEMPTING TO EXPAND A LIFRT OF KRED
KITS BEYOND WHAT THE STATUTE ACTUALLY SAYS AND THAT APPROACH HAS BEEN ENDORSE TDZ BY THE
COURTS BELOW. THIS TIME THE STATE IS ATTEMPTING TO BROADEN THE STATUTE BY
BORROWING THE NOTION OF CONSPIRACY FROM ONE ELEMENT OF THE CRIME AND CARRYING IT OVER
TO OTHER ELEMENTS OF THE CRIME, AND IT'S ASKING TO IT DO AN ENORMOUS AMOUNT OF WORK IN
SHAPE KENNING AND BROADEN K OTHER ELEMENT. THE COURT SHOULD NOT CONDONE THAT KIND OF
BORROWING WHEN CONSIDERING CRIMINAL STATUTES, CREATIVE INTERPRETATION LIKE THAT DEPARTS
FROM THE PLAIN WLANG LANG WITCH IS NOT A GOOD BASE TO ESTABLISH THE PRIOR CASE IN THIS
STATE AND EXISTING LAW NARROWING CONSTRUING THE LIST OF PREDICATES. R THE CORE SHOULD
REQUIRE THE STATE TO OPERATE WITHIN THE LANGUAGE OF THE STATUTE AS WRITTEN AND WE BELIEVE
A CLEAR RULE IS NECESSARY TO GUIDE PARTIES IN THE FUTURE AND TO DISSUADE THE STATE TR
PUTTING FORWARD SIMILARLY TORT CHER STATUTORY INTERPRETATION IN OTHER CASES.
WE ALSO BELIEVE A CLEAR STATEMENT IS THETSZ BECAUSE THERE ARE IMPLICATIONS FOR THE MANY
STATUTES THAT INVOLVE PRESIDENT CAN THE OFFENSE, THESE INCLUDE OTHER LEADERSHIP TYPE STATUTES
THAT AIM TO IMPOSE HEIGHTENED PENALTIES ON LEADERS OF VARIOUS CRIMINAL ENDEAVORS. IT
ALSO MANY SENTENCING STATUTE CONTAIN THE LIST OF PREDICATES LIKE MR. KIRSCH WAS REFERRING
TO, AND THE STATE'S INTERPRETATION HERE TO INTRODUCE THE AMBIGUITY INTO ALL OF THOSE
TYPE OF STATUTES. FINALLY, I WOULD LIKE TO REMIND THE COURT AS MR. KIRSCH
DID THAT THE STATE IS ASKING FOR PERMISSION TO IMPOSE CRIMINAL PENALTIES ON CONSPIRACY
TO CONSPIRE AN AGREEMENT TO AGREE, AND THE HAZARD HERE IS SIGNIFICANT, BECAUSE IT WOULD
PUNISH CONDUCT THAT IS YET ONE STEP FURTHER A WAY FROM AN ACTUAL CRIMINAL ACT, BUT EVEN
LESS FOR CRIMINAL INTENT OF THE TO 0 PUT A FINER POINT ON IT IT MEANS THE STATE CAN SECURE
A CONVICTION WHERE THERE'S NO UNDERLYING SUBSTANTIVE CRIME, NO CONSPIRACY TO COMMIT A
KRV MERELY A SPOS TO CAN'T FIER WOULD BE, WHERE ON THE CONTINUUM BETWEEN GENERAL CRIMINAL
INTENTS AND THE XHIFGS A CRIME CONDUCT BECOMESES PUNISHABLE AND WHEN THAT ARE TOOES TYPE
OF XHEETING POS SEE CONSIDERATIONS ALTS STAKE IT IS ESPECIALLY IMPORTANT HONOR THE LEGISLATIVE
BY STAYING TO THE WORD THE LEGISLATURE KRAFRTED. IF THE WEIGHS THE COMPETING INTEREST
HERE AND CONCLUDES THAT ISSUES TO CRIMINAL LIES A SNEERS INSPIRE, LET IT SAY SO EXPLICITLY.
IT HAS NOT DONE THAT HERE AND WE ASK THE COURT NOT DO THAT EITHER. FOR ALL
OF THESE REASONS WE URGE THE COURT TO ISSUE A CLEAR DIRECTIVE THAT WHERE A KL STATUTE
CONTAINS A LIFRT OF PREDICATE CRIMES THAT LIST MUST BE LIMITED TO ITS TERMS AND CAN NOBT
EXPANDED BY IMPLICATION. I THANK YOU FOR THE OPPORTUNITY TO APPEAR TODAY
ON BEHALF. SOEKS OF CRIMINAL DWNS LAWYERS OF NEW JERSEY, I'M HEAR TO ABS ANY QUESTIONS.
CHIEF JUSTICE RABNER: YOUR 3RD THE CODE DEFENSE I WANT TO FIND HOW FAR THAT
EXTENDS, RACKETEERING CONSPIRACY IS AN OFFENSE UNDER THE CRIMINAL CODE. CAN A PREDICATE
OF A RACKETEERING CONSPIRACY CHARGE BE A CONSPIRACY? JENNIFER O. FARINA:
THE FIRST PLACE ALWAYS TO LOOK IS THE LANGUAGE OF THE STATUTE ITSELF SO I DID CITE A CASE
IN OUR BRIEF DEALING WITH FEDERAL R I CO STATUTES WHERE THE LANGUAGE OF A R I CO STATUTE
PT COMMITTING UNDERLYING OFFENSES INCLUDED CONSPIRACY RASH RAB DO YOU SEE A PROBLEM, YOU
CAME OUT ARGUING AGAINST DOUBLE AND CODEFENSES AS A GENERAL PROPOSITION. IS THERE A PROBABLE
WITH THE RACKETEERING CONSPIRACY CHARGE ON THE BOOKS? JENNIFER O. FARINA:
THAT CERTAINLY EXCEEDS THE SCOPE OF WHAT WE WERE ARGUING TODAY. I THINK THAT STEP ONE
IS TO DETERMINE WHETHER THE LEGISLATURE HAS AUTHORIZED THIS AS A CRIME THAT CAN BE
PROSECUTED. IT'S POSSIBLE I THINK IN SCENARIOS OF DOUBLE IN-COMPANY CHAT DLIEMS THEY WOULD
NOTICE OF DUE PROCESS AND PUNISHING CONSTRUCT THAT IS TOO FAR TOWARDS THE NEERL PREP TORE
AND TOO FAR AR WAY FROM A UNDERLYING CRIMINAL ACT BUT THAT IS NOT WHAT WE ARE ARGUING
AS THE CASE HERE TODAY. AND THE DOUBLE IN-COMPANY WAIT OFFENSES HAVE IN EARNS
OFFENSING BE RECOGNIZED THAT'S NOT WHAT HAD As HAPPENED WITH THE STATUTE AT ISSUE HERE.
CHIEF JUSTICE RABNER: SO YOU'RE REFINING YOUR ARGUMENT, YOU'RE FOCUSING
YOUR ARGUMENT OWN ON THE PROMOTION STATUTE. JENNIFER O. FARINA: OUR FOE
SUS ON THE PROMOTION STATUTE AND A CLEAR EXPRESSION OF THE RULE ABOUT HOW NARROWLY YOU
NEED TO IDENTIFY THESE PREDICATES AND THE POLICY CONSIDERATIONS THAT I RAISE ABOUT THE
WEIGHING, THE REASON I MENTIONED THOSE IS BECAUSE THAT'S A WEIGHING THAT NEEDS TO TAKE
PLACE IN THE LEGISLATIVE PROCESS AND KRAFRTING AND CARE KWL WHERE ON THE CRIMINAL ACTIVITY
BEGINS. JUSTICE SOLOMON: JUST ONE, MAYBE I MISUNDERSTOOD, IT SOUNDED LIKE
MR. KIRSCH WAS ARGUING AND YOU AGREED THAT CONSPIRING TO CONSPIRE IS NOT A CRIMINAL
OFFENSE. CANNOT BE A CRIMINAL OFFENSE AND IT SOUNDED LIKE, AND THAT'S ONE OF HIS
ARGUMENTS, IT SOUNDED LIKE YOU WERE AGREEING WITH THAT, BUT YOU'RE SAYING IF THAT'S LISTED
AS ONE OF THE PREDICATE OFFENSES, IT CAN BE A PREDICATE OFFENSE. JENNIFER O.
FARINA: IF IT WERE LISTED AS ONE OF THE PRESIDENT CAN THE OFFENSES, CERTAINLY THE TEXTUAL
AND STATUTORY INTERPRETATION ISSUES WE HAVE HERE TODAY WOULD NOT BE (. I THINK IT WOULD
PT RAISE OTHER ISSUES OF A DUE PROCESS AND WHETHER THE TWO CONSPIRACIES IN THE ACTUALLY
EXIST SUFFICIENTLY INDEPENDENT OF EACH OTHER AND WHETHER THE UNDERLYING CONSPIRACY ACTUALLY
ITSELF CONSTITUTES ENOUGH OF A SUBSTANTIVE OFFENSE THAT THOSE 2 CAN WORK TOGETHER.
JUSTICE SOLOMON: YOU'RE NOT DISGREELG YOU'RE NOT RELYING ON THE BASIS FOR DISMISSAL
IN THIS CASE? JENNIFER O. FARINA: THAT'S CORRECT. CHIEF JUSTICE
RABNER: I UNDERSTOOD YOUR BRIEF TO SAY THIS COURT SHOULD REJECT CONSPIRACIES TO CONSPIRE.
DO YOU HOLD TO THAT POSITION OR NOT? JENNIFER O. FARINA: THAT GOES A LI
TTLE BIT FARTHER THAN THE POSITION WE'RE TAKING IN OUR BRIEF. THE POSITION WE'RE TAKE
IG IN OR INTREEF THAT CONSPIRACIES TO CONSPIRE ARE SO DELICATE AND SO FRAUGHT WITH CONCERNS
THAT IT SHOULD BE LEFT TO THE LEGISLATURE AND NOT READ INTO STATUTES BY WAY OF JURY
INSTRUCTIONS IN A TRIAL COURT. CHIEF JUSTICE RABNER: YES, BUT IF THERE'S
PROBLEM WITH THE CONSPIRACY TO CONSPIRE, HOW IS IT CURED BY THE FACT THAT THE LOIP CHER
INSTERTED IT? JENNIFER O. FARINA: I BELIEVE IN THE CONTEXT OF THAT'S BEEN
ADDRESSED IN THE CONTEXT OF R I CO STATUTES WHEN YOU LOOK AT THEM MORE CLOSELY YOU SEE
THAT THE TARGETS OF THE CONSPIRACIES ARE PERHAPS SLIGHTLY DIFFERENT FROM ONE ANOTHER AND
THEY'RE ABLE TO WORK TOGETHER IN THAT WAY. YEAH K I WILL COULDN'T FETS' NOT SOMETHING
I EXPLORED IN GREAT DETAIL. CHIEF JUSTICE RABNER: I TAKT YOU AGREE WE
DON'T HAVE TO ADDRESS THAT QUESTION IN ORDER TO RESOLVE THIS CASE. JENNIFER O.
FARINA: THAT IS OUR RUE. CHIEF JUSTICE RABNER: OTHER QUESTIONS. THANK YOU
COUNSEL. MILTON S. LEIBOWITZ: THANK YOU YOUR HONORS AND
MAY IT PLEASE THE COURT, THE STATE RESPECTFULLY REQUESTS THAT YOU AFFIRM DEFENDANT'S
CONVICTION BECAUSE THE APPELLATE DIVISION CORRECTLY FOUND THAT N.J.S.A. 2C 33-30
PROMOTING ORGANIZED STREET CRIME CRIMINALIZES A CONSPIRACY TO COMMIT A WIDE RAN
GE OF OFFENSES INCLUDING DISTRIBUTION OF CDS. INDEED DESPITE THE DEFENDANT'S
CLAIM THAT CONSPIRACIES ARE NOT INCLUDED IN THE STATUTE, EVERY VERSION OF ORGANIZED
STREET CRIME IS A CONSPIRATORIAL OFFENSE. THAT IS BECAUSE THE STATUTE IN PLAIN
LANGUAGE THAT'S THAT IT IS A CONSPIRACY, IT BEGINS BY SAYING THAT A PERSON
PROMOTES ORGANIZED STREET CRIME IF HE CONSPIRES AND THEREFORE THE STATE
RESPECTFULLY SUBMITS THE QUESTION BEFORE THIS COURT IS WHETHER OR NOT THE
LANGUAGE USED IN THIS CASE WAS ERRONEOUS, THE QUESTION IS WHETHER OR NOT STATING
CONSPIRACY TWICE IN THE INSTRUCTIONS DEFINING THE STATUTE CAUSED HARMFUL
ERROR AND THE STATE SUBMITS THAT THE ANSWER TO THAT IS NO. TO
BEGIN, THE REPEATED USE OF CONSPIRACY WAS HARMLESS BECAUSE IT MERELY IDENTIFIED
THE CONSPIRACY THAT WAS BEING ALLEGED. IT WAS AKIN TO ALMOST A STUTTER.
MORE IMPORTANTLY I THINK THREE THINGS FROM THIS CASE ALSO LEAD TO THE CONCLUSION
THAT IT WAS HARMLESS ERROR, FIRST, A CONSPIRACY TO COMMIT A CONSPIRACY IS
JUST ONE ONGOING CONSPIRACY, THE STATE ARGUED IN ITS BRIEF AND CONTINUES TO ARGUE
THAT A CONSPIRACY TO CONSPIRE IS AN AGREEMENT THAT YOU HAVE AGREED, NOT
AN AGREEMENT TO AGREE. IN FACT I THINK IN ONE OF THE CASES THAT I THINK AMICUS
CITES FROM THE DISTRICT OF COLORADO, U. S. V EXCEL LORE, THE STATE COMES
TO THE CONCLUSION THAT THE REASON WE DON'T NEED TO HAVE A CONSPIRACY TO CONSPIRE
IS WHERE YOU MEET THAT FIRST OVERT ACT FOR THE FIRST CONSPIRACY YOU'VE STASHLD
THE SUBSTANTIVE CRIME OF THE ALLEGED SECOND CONSPIRACY AND THEY ESSENTIALLY
GO INTO ONE AND THEREFORE A CONSPIRACY TO CONSPIRE AS INSTRUCTED IN THIS CASE WAS
HARMLESS BECAUSE IT ESSENTIALLY FOLDED INTO ONE ONGOING CONSPIRACY AND AS
STATED A CONSPIRACY TOP DISTRIBUTE DRUGS IS CRIMINALIZED. THE JURY CENTS 13 NOTES
DURING THE TRIAL AND DID NOT ASK ANYTHING ABOUT THIS INSTRUCTION, WHILE
MOILTEDLY SOME OF THE QUESTIONS WERE ABOUT WANDERING READ BACK AND WHETHER OR NOT
THEY COULD HAVE THE AMMO WITH THE GUN, THE FACT THAT THEY ASKED QUESTIONS
SHOW THAT IF THEY WERE CONFUSED THEY WOULD HAVE INQUIRED, THEY DID NOT ASK ANY
QUESTIONS WITH RESPECT TO THIS STATUTE. BUT PERHAPS MORE IMPORTANTLY WE
KNOW THAT THE JURORS FOUND THE ELEMENTS OF THIS OFFENSE AS THEY SHOULD HAVE BEEN
INSTRUCTED BASED SOT VERDICT THAT WAS RENDERED. PROMOTING STREET CRIME
REQUIRES THAT THE DEFENDANT CONSPIRED WITH TWO PEOPLE TO DISTRIBUTE CDS AND THAT
HE CONSPIRED AS A MANAGER, ORGANIZER OR FINANCIER, IT IS CLEAR THAT THE JURY FOUND
THE DEFENDANT GUILTY TO KWON SPIER CDS BECAUSE THEY CONVICTED HIM OF THAT
OFFENSE AND THE ALLEGED TAINT ASSOCIATED WITH THIS CONSPIRACY TO CONSPIRE IN NO
WAY AFFECTS THEIR CLEAR FINDING THAT HE WAS A MANAGER, ORGANIZER, SUPERVISOR
OR FINANCIER OF THAT CONSPIRACY. THEREFORE UPON LOOKING AT THE VERDICT THAT
WAS RENDERED THERE REALLY IS NO QUESTION THAT THE JURORS FOUND WHAT SHOULD HAVE
BEEN INSTRUCTED AND THUS THE CONSPIRACY TO CONSPIRE THAT DEFENDANT ALLEGES IS HARMLESS.
WITH RESPECT TO AMICUS'S ARGUMENT THAT WE HAVE A DOUBLE INCHOATE CRIME
HERE, THE CONSPIRACY TO CONSPIRE FOLDS INTO ITSELF INTO ONE ONGOING CONSPIRACY,
IT DOESN'T PRESENT THE CONCERNS ASSOCIATED WITH AN ATTEMPT AT CONSPIRACY
OR ATTEMPTED SOLICITATION, A DESIRE TO CONSPIRE OR THINGS OF THAT NATURE, BECAUSE
BY ITS VERY CONSTRUCTION, A CONSPIRACY TO CONSPIRE IS ONE ONGOING CONSPIRACY,
AND IT IS CLEAR THAT THE LEGISLATURE CRIMINALIZED CONSPIRING TO DISTRIBUTE CDS
AS PART OF ORGANIZING STREET CRIME, ADMITTEDLY IT MOVES THE CONSPIRING AT
THE BEGINNING OF THE LANGUAGE TO THE PREDICATE ACTS BUT I WOULD SUBMIT THAT THERE
IS NO QUESTION THAT PROMOTING STREET CRIME CRIMINALIZES CONSPIRING TO DISTRIBUTE
CDS, WHICH WAS FOUND HERE. IN SUM THE APPELLATE DIVISION PROPERLY FOUND THAT
N.J.S.A. 2C CLE-30 CRIMINALIZED THE CONDUCT AT ISSUE, THE INSTRUCTION HERE
WAS HARMLESS AND THIS COURT SHOULD AFFIRM RICHLT COUNSEL, JUST LOOKING AT THE STATUTE
ITSELF, IS XHAERS TO DISTRIBUTE CDS A PREDICATE OFFENSE UNDER THE PROMOTION
OF ORGANIZED STREET CRIME STATUTE. MILTON S. LEIBOWITZ: I WOULD
SUBMIT IT IS, YOUR HONOR. THE COURT: TELL US WHERE.
4THDFNS: SO IT IS NOT ENUMERATED IN THE SECTION OF THE STATUTE THAT LISTS
THE STATUTES, HOWEVER THE INSTRUCTION IS TO BE READ AS A WHOLE.
THE COURT: DON'T GO TO THE INSTRUCTION, LOOK AT THE PLAIN LANGUAGE OF THE STATUTE
AND TELL US WHERE IS IT IN THE ENUMERATED OFFENSES THAT ONE CAN FIND CONSPIRACY
TO DISTRIBUTE CDS. MILTON S. LEIBOWITZ: IT IS NOT IN THE LIST BUT
IT IS CRIMINALIZED BEHAVIOR AND YOUR HONOR SAID DON'T GO BACK TO THE BEGINNING
BUT I DON'T THINK ONE CAN IGNORE THE BEGINNING WHERE IT SAYS THAT A PERSON COMMITS
THIS OFFENSE BY CONSPIRING WITH TWO OTHER INDIVIDUALS AS A MANAGER, FINANCE
SER OR PROMOTER TO COMMIT THIS OFFENSE, IT IS KEY AND INCUMBENT THAT THERE IS THIS
CONSPIRACY AND IF THERE IS NO CONSPIRACY IT IS NOT A VIOLATION OF THIS OFFENSE
RICHLT SO LET'S PARSE THE STATUTE A LITTLE BIT FURTHER. IT SAYS A PERSON PROMOTES
ORGANIZED STREET CRIME IF HE CONSPIRES WITH OTHERS AS AN ORGANIZER,
SUPERVISOR, FINANCIER OR MANAGER TO COMMIT ANY OF THE FOLLOWING CRIMES, AND I'LL
MODIFY THE LANGUAGE, CONSPIRACY TO DISTRIBUTE CDS IS NOT LISTED IN ANY OF
THE FOLLOWING CRIMES, IS IT? MILTON S. LEIBOWITZ: I AGREE THAT
CONSPIRACY IS NOT LISTED IN THE FOLLOWING CRIMES. THE COURT:
NOW, TELL US WHAT THE JURY FOUND AS A PREDICATE OFFENSE IN THIS CASE.
MILTON S. LEIBOWITZ: CONSPIRACY, THEY FOUND THAT DEFENDANT CONSPIRED TO
DISTRIBUTE CDS AND IN SO FAR AS SUCH CONDUCT IS CRIMINALIZED BY THIS STATUTE WHERE
YOU'RE ACTING AS AN ORGANIZER OR PROMOTER, IT WOULD MEET THE DEFINITION
OF THIS RICHLT RESPECTFULLY THAT'S NOT WHAT THE JURY TOLD US THEY FOUND. THE
VERDICT SHEET, QUESTION 10 B TELLS US EXACTLY WHAT THE JURY FOUND AS A
PREDICATE. I'LL READ IT FOR YOU. THEY FOUND CONSPIRACY TO DISTRIBUTE A CONTROLLED
DANGEROUS SUBSTANCE AS THE PREDICATE. THAT'S NOT LISTED AS A PREDICATE IN THE
STATUTE. MILTON S. LEIBOWITZ: I AGREE WITH YOUR
STATEMENTS, YOUR HONOR, THAT THAT IS WHAT THEY FOUND, THEY CHECKED THAT ON THE
VERDICT SHEET, THAT WAS WHAT THEY WERE INSTRUCTED RICHLT SO RICHLT SO IT APP.
THE COURT: SO IT APPEARS THAT THEY FOUND AN OFFENSE THAT IS NOT A
CRIME. HOW DO YOU GET AROUND THAT. MILTON S. LEIBOWITZ:
I WOULD HAVE TO GO BACK TO MY EARLIER COMMENT THAT THE CRIMINALIZED COMMENT
THAT THE LEGISLATURE INTENDED WAS CONSPIRES TO DISTRIBUTE CDS IN THIS ROLE.
THE COURT: YOU LOOK FOR THE LEGISLATIVE'S INTENTS FROM THE LANGUAGE USED
AT THE STATUTE, ARE YOU ASKING US TO LOOK BEYOND WHAT THE JURY ACTUALLY FOUND
HERE? MILTON S. LEIBOWITZ: I AM ASKING THE COURT TO
LOOK AT THE EFFECT OF WHAT WAS INSTRUCTED AND -- THE COURT: BUT BEFORE
WE GET TO THE INSTRUCTION, IT APPEARS TO KEEP THIS VERY SIMPLE THAT THE
JURY FOUND THIS PERSON GUILTY OF SOMETHING THAT IS NOT A CRIME. IS THAT AN INCORRECT
READING OF THEIR RESPONSE ON THE VERDICT SHEET? MILTON S.
LEIBOWITZ: I THINK LOOKING AT THEIR RESPONSE ON -- IT APPEARS THAT YES, THEY
CHECKED THE BOX OF CONSPIRACY TO DISTRIBUTE CDS, WHICH IS NOT LISTED AS A
N ENUMERATED OFFENSE IN THE STATUTE. THE COURT: WHY ISN'T THAT THE
END OF THE ANALYSIS? MILTON S. LEIBOWITZ: BECAUSE THE QUESTION
IS WHETHER OR NOT THE CONDUCT UNDERLYING THAT WAS INTENDED TO BE CRIMINALIZED
BY THE LEGISLATURE PEECHLT BUT IF THE ELEVENS LAYER WAFRNTED TO CRIMINALIZE
CONSPIRACY TO COMMIT THE SUBSTANTIVE OFFENSES LISTED, THE LEGISLATURE COULD HAVE
EASILY NOTED THAT IN THE LANGUAGE OF THE STATUTE, THE STATUTE CRIMINALIZES AS
PREDNISONE CAN IT OFFENSES A PRETTY BROAD RANGE OF OFFENSES, ANY CRIMES XES
FIED IN CHAPTERS 11 THROUGH 18, 20, 23, 35, 37, IF THE LEGISLATURE WANTED TO INCLUDE
INCLUDING ANY CONSPIRACY TO COMMIT THOSE OI FENCES, IT COULD HAVE DONE SO
AND IT DIDN'T DO THAT. MILTON S. LEIBOWITZ: AGREED, YOUR HONOR,
I WOULD SAY THAT THE PROBLEM HERE IS THAT THIS WAS UNFORM AN AMENDMENT DURING
THE TRIAL WHICH DEFENSE COUNSEL ADMITS HE DOESN'T HAVE A PROBLEM WITH PROCEDURALLY
AS DEFENDANT WAS ON NOTICE FOR THE RACKETEERING ACTIVITIES. THE COURT IN
ATTEMPTING TO FASHION THE LANGUAGE THAT SHOULD BE USED TO INSTRUCT THE JURORS HERE
TOOK THE DISTINCT PREDICATE ACTS FOR THE RACKETEERING AND PLUGGED THEM IN
HERE. AND I THINK IT WENT A STEP TOO SHORT WHICH IS CAUSING THIS ERROR, I THINK
THE COURT COULD HAVE MERELY STATED THIS IS A CONSPIRATORIAL ACT, CONSPIRACY
IS RECOGNIZED IN THE BEGINNING LANGUAGE OF THE STATUTE, AND THEN INSTRUCTED IT
AS DISTRIBUTING CDS, AND WE WOULDN'T BE HERE, OR AT LEAST NOT FOR THIS REASON,
HAD THE COURT ELECTED TO DO SO. THE COURT: BUT WASN'T THE COURT
ACQUITTED OF DISTRIBUTING CDS, IF YOUR ARGUMENT IS THIS IS REALLY NOT A
PROBLEM BECAUSE CONSPIRACY TO GRIBT CDS IS THE SAME THING AS THE CONSPIRACY TO
DISTRIBUTE CDS SO WE HAVE THE CONSPIRACY IN 2C 30-30 AND THEN WE HAVE THE
DISTRIBUTING THE CDS, WASN'T THE DEFENDANT ACTUALLY ACQUITTED OF DISTRIBUTING
CDS. MILTON S. LEIBOWITZ: YES, HE WAS. THE COURT:
SO HOW DOES THAT HELP YOU. MILTON S. LEIBOWITZ: BECAUSE AGAIN BECAUSE
PROMOTING ORGANIZED STREET CRIME IS A CONSPIRATORIAL CRIME, THE FACT THAT
HE WAS ACQUITTED OF THE SUBSTANTIVE OFFENSE DOESN'T MEAN THAT HE WAS ACQUITTED
OF CONSPIRING TO DISTRIBUTE CDS. THE COURT: BUT IF YOUR POINT
IS THAT CONSPIRACY TO CONSPIRE TO DISTRIBUTE CDS IS EXACTLY THE SAME AS
CONSPIRACY TO DISTRIBUTE CDS, THAT'S YOUR POINT, RIGHT, IT'S JUST A STUTTER USING
THE WORD CONSPIRACY TWICE HAS NO MEANING, IT'S EXACTLY THE SAME AS CONSPIRACY
TO DISTRIBUTE CDS, SO IF WE TAKE YOU AT YOUR WORD AND WE LOOK AT THE STATUTE AND
WE SAY OKAY WE HAVE THE WORD CONSPIRACY IN 2:33-30, SO WE'RE JUST GOING TO
PRETEND THAT THE PREDICATE OFFENSE WAS ACTUALLY DISTRIBUTION OF CDS RGS NOT CONSPIRACY
TO DISTRIBUTE CDS, SO THAT WE AREN'T ACCIDENTALLY REPEATING THE WORD TWICE
AND WE HAVE THE PREDICATE OFFENSE THAT YOU'RE SAYING REALLY EXISTED, DEFENDANT
WAS ACQUITTED OF THAT PREDICATE OFFENSE, SO THE JURY OBVIOUSLY DID NOT THINK
THAT CONSPIRACY TO DISTRIBUTE CDS WAS THE SAME AS CONSPIRACY TO CONSPIRACY -- CONSPIRACY
TO CONSPIRE TO DISTRIBUTE CDS, OTHERWISE HE WOULD HAVE BEEN CONVICTED OF THE
PREDICATE OFFENSE. MILTON S. LEIBOWITZ: I FOLLOWED YOU UP TO A
POINT AND THEN I GUESS AT THE END YOU LOST ME. I VIEW IT THEY ACQUITTED
HIM OF THE SUBSTANTIVE CRIME, BUT I BELIEVE IN COUNTER 11 THEY CONVICTED OF THAT
HE CONSPIRED TO DISTRIBUTE CDS AND WHEN I SAY THE CONSPIRACY FOLDS INTO
ITSELF, BUT IT IS CLEAR THAT -- THE COURT: SO ARE YOU AVERAGING THAT
IF THE 2C 33-30 HAD BEEN CHARGED AS CONSPIRACY TO DISTRIBUTE CDS WITHOUT
THE WORD CONSPIRACY TWICE, SO THE CONSPIRACY AND THEN THE PREDICATE OFFENSE IS
JUST DISTRIBUTION OF CDS WITHOUT ANY REPETITION OF WORDS AND THAT IF
DEFENDANT HAD BEEN ACQUITTED OF THE UNDERLYING PREDICATE OFFENSE, ARE YOU ARGUING
THAT UNDER 2C 33-30 HE COULD HAVE STILL BEEN PROMOTED -- I'M SORRY, CONVICTED OF
PROMOTION OF AN ORGANIZED STREET CRIME, IT JUST WOULD HAVE HAD NO PREDICATE
OFFENSE BECAUSE HE HAD BEEN ACQUITTED OF THE PREDICATE OFFENSE.
MILTON S. LEIBOWITZ: YES, INSOFAR AS BECAUSE IT IS A CONSPIRATORIAL ACT HE DID
NOT NEED TO COMPLETE THE ACTUAL DISTRIBUTION TO BE FOUND GUILTY OF IT.
THE COURT: BUT HERE IT WAS -- I'M SORRY, THE SENTENCES WERE
CONSECUTIVE, RIGHT. MILTON S. LEIBOWITZ: YES. THE
COURT: SO WOULDN'T THAT HAVE BEEN HARMFUL IF HE HAD BEEN CONVICTED OF A PREDICATE
ACT IN YOUR VIEW HE COULD HAVE BEEN VICTORED OF PROMOTION EVEN IF THERE
WAS NO PREDICATE ACT, SO HERE THERE'S BOTH, THERE'S DOUBLE COUNTING.
MILTON S. LEIBOWITZ: IT IS A POTENTIAL INCONGRUITY, BUT IF HE IS BEING ACQUITTED
OF THE DISTRIBUTION THERE WOULDN'T BE ANYTHING TO RUN IT CONSECUTIVE TO
SO THAT CONCERN WOULDN'T COME INTO PLAY. THE COURT: JUST TO CORRECT
A STATEMENT THAT I THINK YOU MADE, YOU SAID COUNTER 11, I THINK IT WAS COUNT
23 SNIECHLTD 23 ON A. THE COURT: IS THE CONVICTION FOR CONSPIRACY
TO DISTRIBUTE BUT HE WAS ACQUITTED OF THE POSSESSION WITH INTENT TO DISTRIBUTE
WHICH WAS COUNT 12 IN THE 500 FOOT CHARGE. MILTON S. LEIBOWITZ:
THANK YOU, YOUR HONOR, THAT IS WHAT I INTENDED, I BELIEVE COUNT 11 WAS THE
POSSESSION OF CDS. THE COURT: ISN'T THERE ANOTHER PROBLEM WITH
REMOVING THE STUTTER, REMOVING THE SECOND REFERENCE TO CONSPIRACY, AND THAT'S
WHAT NOTICE DID DEFENDANT HAVE OF THE CHARGE. SPEAKS TO A PATTERN OF RACKETEERING
ACTIVITY, AND IF YOU LOOK TO THE PREDICATE COUNTS WHICH DEFINE THE RACKETEERING,
CONSPIRACY TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE IS LISTED BUT NOT
DISTRIBUTION. SO YOU CAN'T JUST AMEND IT AT THE 11TH HOUR AND CHARGE THE DEFENDANT
WITH SOMETHING THAT HE HAS NO NOTICE OF. HOW DO YOU REMOVE THE EXTRA WORD, WHICH
REALLY CHANGES THE CRIME. MILTON S. LEIBOWITZ: THE DEFENDANT
WAS ALWAYS ON NOTICE THAT WE WERE CHARGING HIM WITH A VARIETY OF CRIMES
INCLUDING DISTRIBUTION OF CDS. CHIEF JUSTICE RABNER: BUT NOT IN
COUNT FOUR, LOOK AT THE LANGUAGE IN COUNT FOUR AND TELL US WHAT HE WAS ON
NOTICE OF. IT'S PAGE 7 OF THE INDICTMENT. MILTON S. LEIBOWITZ:
PURPOSELY CONSPIRE WITH OTHERS AS AN ORGANIZER, SUPERVISOR, MANAGER,
FINANCIER, TO COMMIT A CONTINUING SERIES OF CRIMES WHICH CONSTITUTE A PATTERN OF
RACKETEERING ACTIVITY. CHIEF JUSTICE RABNER: STOP THERE. AND AS A
RESULT OF THAT, COUNSEL AND THE JUDGE TOGETHER DISCUSSED REFERRING BACK TO
THAT PHRASE, PATTERN OF RACKETEERING ACTIVITY THAT IS DEFINED EARLIER IN THE
INDICTMENT. I'M LOOKING AT THE LANGUAGE IN COUNT 1 BUT IT REEPTSZ ITSELF,
YOU CAN'T FIND DISTRIBUTION THERE. THE DEFENDANT IS ENTITLED TO NOTICE OF WHAT
THE CHARGE IS. MILTON S. LEIBOWITZ: I AGREE, YOUR HONOR.
CHIEF JUSTICE RABNER: DID HE HAVE IT, DID HE HAVE NOTICE THAT HE WAS RESPONSIBLE
UNDER COUNTER 4 FOR A DISTRIBUTION OFFENSE AS A PREDICATE. MILTON
S. LEIBOWITZ: INSOFAR AS THEY AMOUNTED IDENTITIES AND THE XAERSZ WAS IN THERE,
YES, INSOFAR AS BEING COMPLICITY THAT IT WAS NOT A CONSPIRATORIAL OFFENSE,
NO, SO TO ANSWER YOUR QUESTION SIMPLY, I WOULD SAY NO. CHIEF
JUSTICE RABNER: WHAT'S THE APPROPRIATE REMEDY IN THIS SITUATION, IF THE COURT FINDS
THAT THERE'S A FLAW WITH COUNT FOUR. MILTON S. LEIBOWITZ:
IF THE COURT FINDS THAT THERE WAS A FLAW THAT HE WAS CONVICTED OF A CRIME THAT
DOESN'T EXIST IT HAS TO BE VACATED BECAUSE YOU CAN'T CONVICT HIM OF A CRIME THAT
DOESN'T EXIST, AND IF THE AMENDMENT WAS IMPROPER AS HE DOESN'T HAVE SUFFICIENT
NOTICE IT CANNOT BE REMANDED FOR NEW TRIAL TO FIX SOMETHING THAT DOESN'T
EXIST AND THEREFORE AGAIN LEADS TO VACATION OF THE CONVICTION. UNLESS YOUR
HONORS HAVE ANY OTHER QUESTION, I THINK THAT IS ALL I HAVE.
CHIEF JUSTICE RABNER: THANK YOU. THE COURT: DO YOU HAVE REBUTTAL.
STEPHEN W. KIRSCH: ONLY ON THE ISSUE THAT YOU RAISED WITH
AMICUS, I'VE NEVER HAD A CLIENT CONVICTED OF RACKETEERING BUT I HAVE READ THE
RACKETEERING STATUTE AND WHAT I SEE IN THAT IS I THINK IF WE HAD HAD A
RACKETEERING CONVICTION HERE I'D BE MAKING AN ARGUMENT TO YOU THAT THE WRONG PREDICATES
WERE CHARGED THERE WHEN THEY CHARGED CONSPIRATORIAL PREDICATES. AT LEAST
AS TO THE COUNT OF RACKETEERING THAT WAS A CONSPIRACY TO COMMIT THE RACKETEERING
OFFENSE, THE UNDERLYING RACKETEERING PREDICATES. IF YOU LOOK AT 41:2 --
ACTUALLY I'LL START WITH 41-1, 41-1 EAST NUM RATHS A BUNCHGE PREDICATE CRIMES FOR
RACKETEERING, CONSPIRACY IS NOT THERE, JUST SUBSTANTIVE CRIMES ARE LISTED
IN 41-BUN, THEN IF YOU JUMP TO 412C AND ALSO D, WHICH IS WHAT WAS INDICTED HERE,
C IS THE SUBLGS STAND TESTIFY COMMISSION OF THOSE CRIMES AS A PATTERN OF
RACKETEERING, D IS A CONSPIRACY TO COMMIT THOSE UNDERLYING CRIMES AS A PATTERN OF
RACKETEERING. NOWHERE IN THERE DO I SEE ROOM FOR A CONSPIRACY TO CONSPIRE TO
COMMIT THOSE CRIMES. SO I THINK IT'S A LOT OF SAME THE 33-30, I DON'T PROFESS
TO KNOW AT ALL WHAT THE FEDS HAVE DONE WITH THIS AND MAYBE THEIR RE COMPANY STATUTE
IS DIFFERENT, I DON'T KNOW, BUT IT DOESN'T LOOK LIKE OUR 5-2 OR OUR RE COMPANY
STATUTE ALLOWS FOR A CONSPIRACY TO CONSPIRE, I THINK IT ALLOWS FOR A CONSPIRACY
TO DO KNIT PREDICATES LISTED IN 41-1 AND I THINK IT ALLOWS A SUBSTANTIVE
COMMISSION OF THOSE PREDICATES IN 412C BUT I DON'T THINK IT ALLOWS FOR A CONSPIRACY
TO CONSPIRE BECAUSE CONSPIRACY IS NOT LISTED IN 41-1. JUSTICE
WAINER APTER: BUT THAT'S A CONSTITUTION STATUTORY ARGUMENT, I HAD NOT UNDERSTOOD
YOU TO ARG THAT IT WAS UNCONSTITUTIONAL -- STEPHEN W. KIRSCH:
NO, PROBABLY NOT, I THINK THIS IS EASY BECAUSE IT'S NOT ON THE LIST AND I
THINK RACKETEERING WOULD BE JUST AS EASY BECAUSE IT'S NOT ON THE LIST, AND THE
CONSPIRACIES TO COMMIT RACKETEERING ARE COVERED IN 41-2 D, THEY ARE SOLELY
CONSPIRACIES TO COMMIT THAT LIST OF SUBSTANTIVE OFFENSES THAT'S OVER IN 41-1, OF
WHICH CONSPIRACY IS NOT ONE OF THEM. UNLESS YOUR HONOR HAS ANYTHING ELSE.
CHIEF JUSTICE RABNER: THANK YOU COUNSEL. STEPHEN W.
KIRSCH: THANK YOU. CHIEF JUSTICE RABNER: WE'LL TAKE THE MATTER
UNDER ADVISEMENT.