STATE of Iowa, Appellee, v. Stanley L. REED, Appellant.
No. 99-0947.
Supreme Court of Iowa.
Oct. 11, 2000.
618 N.W.2d 327
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Michael P. Short, County Attorney, for appellee.
A jury convicted Stanley L. Reed of violating several drug statutes and a statute prohibiting ongoing criminal conduct through specified unlawful activity. He challenges the ongoing-criminal-conduct statute on the grounds of overbreadth and vagueness under the Federal Constitution. He also contends the district court violated his double jeopardy rights when the court sentenced him for both the drug convictions and the ongoing-criminal-conduct conviction. Finally, he contends the court should have merged the sentence for these convictions pursuant to
I. Background Facts and Proceedings.
Steve Austin, a confidential informant, agreed with the Lee County drug task force to buy drugs from Reed. Acting under the supervision and monitoring of drug enforcement agents, Austin bought crack cocaine from Reed on three different occasions: November 23, 1998; December 11, 1998; and January 14, 1999.
On January 15, 1999, the police executed a search warrant at Reed‘s residence. They seized marijuana, cocaine, scanners, cash, food stamps, and a pistol. Police officers arrested Reed at another location. When the officers arrested Reed, they seized from him a bag of crack cocaine, a sum of money, and a pager.
After arresting Reed, the police contacted Renita Hill, Reed‘s girlfriend. While they were talking to Hill, Lamont Walker, a friend of Reed‘s, arrived at her residence. The police interrogated Walker about the location of Reed‘s stash of drugs. Walker agreed to cooperate with the police and led them to the home of Adraine Bradley. Bradley is Walker‘s sister. Reed and Walker had been paying Bradley $30 per month to store the drugs in her apartment.
Before the police arrived at Bradley‘s apartment, she had learned about Reed‘s arrest. Fearing that the police would arrest her next, she convinced a neighbor friend, Tonya Wilson, to take Reed‘s stash of drugs. The drugs were in a bag, and Bradley concealed the fact that the bag contained drugs. Bradley told Wilson that the bag contained a present for Bradley‘s boyfriend who was getting out of jail. Wilson asked her stepfather, Charles Edward Stepp, Jr., to take the bag and hold it for her. Stepp took the bag to his home. He was unaware the bag contained drugs.
A short time later, Walker called Bradley and learned that Bradley had gotten rid of the drugs. Walker told Bradley to retrieve the drugs. Bradley then told Wilson what was in the bag and told her to call her parents to tell them to bring the drugs back. Wilson called her parents, told them what was in the package, and asked them to return it. Walker and two police officers were waiting at Wilson‘s apartment when Wilson‘s parents brought the drugs back.
Walker took the bag containing the drugs from the trunk of the Stepps’ car and handed the bag to the police officers who were present. The bag contained thirteen bags of marijuana and a sock containing a bag of cocaine.
The State charged Reed with two counts of delivery of a cocaine base, in violation of
A jury found Reed guilty on all counts except the marijuana charges. The State also agreed to dismiss the possession-of-a-firearm charge in exchange for Reed‘s admitting to the factual basis for the sentencing enhancements.
Pursuant to
The court further sentenced Reed to twenty-five years for his conviction of ongoing criminal conduct through specified unlawful activity. Finally, the court imposed a sentence not to exceed five years for the tax stamp violation, plus a $1000 fine. The court also ordered these sentences to be served concurrently, but consecutively to the delivery and possession convictions.
On appeal, Reed contends that the term “specified unlawful activity” used in the ongoing-criminal-conduct statute is overbroad and vague. He further contends the district court violated his double jeopardy rights when the court sentenced him for both delivery of a controlled substance and ongoing criminal conduct. He also contends the district court erred in failing to merge these sentences pursuant to
II. The Overbroad and Vagueness Issue.
During trial, Reed moved unsuccessfully to dismiss the charge of ongoing criminal conduct on the basis of overbreadth and vagueness. Because Reed raises constitutional issues, our review is de novo. State v. Ryan, 501 N.W.2d 516, 517 (Iowa 1993).
Reed contends that the terms “preparatory” and “continuing basis,” as used in
A. Overbreadth.
A statute is overbroad in violation of the
The problem with Reed‘s overbreadth claim is that, while he does attempt to show how
B. Vagueness.
1. The void-for-vagueness doctrine.
Under the Due Process Clause of the
In Hunter, we noted that the void-for-vagueness doctrine protects several important values:
“First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates 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. Third, but related, where a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.’ ”
Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)).
2. Standing.
When the State charges a defendant with violating a statute, the defendant has standing to claim the statute is unconstitutionally vague as applied to him or her. Id. This does not mean, however, that the defendant necessarily has standing to claim, in addition, that the statute is unconstitutional as applied to others, i.e., a facial challenge. Id. If the statute is constitutional as applied to the defendant, the defendant lacks standing to make a facial challenge to the statute unless a recognized exception applies. Id. In Hunter, we recognized that “a facial challenge is permitted if a statute reaches a ‘substantial amount of protected conduct’ under the First Amendment.” Id. at 464.
Here, as the State correctly notes, Reed does not contend that
3. Vagueness as applied.
As mentioned, “specified unlawful activity” means “any act, including any preparatory or completed offense, committed for financial gain on a continuing basis, that is punishable as an indictable offense under the laws of the state in which it occurred and under the laws of this state.”
a. Preparatory: Does the word “preparatory” refer to “act” or “completed offense“?
As to the word “preparatory,” Reed argues that it is not clear whether the term refers to “act” or “completed offense.” He asks whether the legislature intended the word “preparatory” to encompass any act that is done in preparation for the commission of an indictable offense or any completed offense. He concludes that, if the legislature was not
In support of his argument, Reed points out that
Reed argues that if “preparatory” refers to “act” a person of ordinary intelligence would have no guidance as to what conduct is prohibited by
We reject Reed‘s argument. The word “preparatory” clearly refers to “offenses” rather than to “acts.” Additionally, the “preparatory” offense referred to in
It is true that the Model Act limits the “preparatory or completed offenses” to “trafficking in controlled substances, homicide, robbery, extortion, extortionate extensions of credit, trafficking in explosives or weapons, trafficking in stolen property, or obstruction of justice.” Model Act § 4(e)(1). It is also true that
We conclude the word “preparatory” is not unconstitutionally vague on this ground.
b. Whether the words “preparatory” and “continuing basis” are unconstitutionally vague.
Reed alternatively argues that the words “preparatory” and “continuing basis” lack a clearly definable meaning. Therefore, he argues, the words offer no guidance to the individual or to the officials charged with enforcing the laws. For reasons that follow, we reject Reed‘s argument that the words “preparatory” and “continuing basis” are unconstitutionally vague.
As the State points out, statutory terminology provides a defendant fair warning if the meaning of such terminology is “fairly ascertainable by reference to similar statutes, prior judicial determinations, reference to the dictionary, or if the questioned words have a common and generally accepted meaning.” Hunter, 550 N.W.2d at 465 (quoting State v. Kueny, 215 N.W.2d 215, 217 (Iowa 1974)).
i. “Preparatory.”
The dictionary meaning of the word “preparatory” is “preparing or serving to prepare for something.” Webster‘s Third New International Dictionary 1790 (unabr. ed. 1993). Earlier we noted that the Model Act limits “preparatory or completed offenses” to “trafficking in controlled substances, homicide, robbery, extortion, extortionate extensions of credit, trafficking in explosives or weapons, trafficking in stolen property, or obstruction of justice.” Model Act § 4(e)(1). The comment to this section
In the same vein, we think the Iowa legislature intended the term “preparatory” in
ii. “Continuing basis.”
We note that, unlike
We recently considered the concept of continuing criminal activity in Midwest Heritage Bank, FSB v. Northway, 576 N.W.2d 588 (Iowa 1998). In Midwest, we had before us a claim of racketeering in violation of
for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise‘s affairs through a pattern of racketeering activity or collection of unlawful debt.
We were considering in Midwest what constitutes a “pattern of racketeering.” The statute expressly required at least two acts of racketeering. Midwest, 576 N.W.2d at 590, 591. In addition to the two acts, however, we noted that there must also be a
“showing of a relationship between the predicates [acts of racketeering] and the threat of continuing activity. It is this factor of continuity plus relationship which combines to produce a pattern. RICO‘s legislative history reveals Congress’ intent that to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued activity.”
Midwest, 576 N.W.2d at 591 (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989)).
We also noted in Midwest that “[t]he relationship element of a pattern can be shown if the predicate acts ‘have the same or similar purposes, results, participants, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events.’ ” Id. (quoting H.J., 492 U.S. at 240).
We further noted in Midwest that, as to the continuity element, H.J. said:
” ‘Continuity’ is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition. It is, in either case, centrally a temporal concept—and particularly so in the RICO context, where what must be continuous, RICO‘s predicate acts or offenses, and the relationship these predi
cates must bear one to another, are distinct requirements. A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct. Often a RICO action will be brought before continuity can be established in this way. In such cases, liability depends on whether the threat of continuity is demonstrated. Whether the predicates proved establish a threat of continued racketeering activity depends on the specific facts of each case.”
Id. (quoting H.J., 492 U.S. at 241-42) (emphasis added).
Given the similarity between the underlying purposes of RICO and
The predicate acts and the circumstances surrounding those acts also established a threat of continued drug dealing. The “stash” of drugs recovered, the evidence of numerous past drug sales, and the payment of $30 per month to store the “stash” all indicate that Reed (1) had an ongoing business in dealing drugs and (2) intended to continue such business in the future.
III. Double Jeopardy and Merger Pursuant to Iowa Code Section 701.9 .
Reed contends that the district court violated his double jeopardy rights under the
Because Reed‘s double jeopardy challenge raises a constitutional issue, our review is de novo. See State v. Perez, 563 N.W.2d 625, 627 (Iowa 1997). We review Reed‘s challenge that the sentences imposed violate
A. Double jeopardy.
The Double Jeopardy Clause of the
The Double Jeopardy Clause is limited in its application in those instances in which, as here, multiple punishments are imposed pursuant to a single prosecution. Perez, 563 N.W.2d at 627. This is because the multiple-punishment prohibition “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). Therefore, as we have observed, “the question of what punishments are constitutionally permissible is no different from the question of what punishments the legislature intended to be imposed.” State v. McKettrick, 480 N.W.2d 52, 57 (Iowa 1992). The courts, however, must presume that “in the absence of a clear indication of contrary legislative intent, ” the legislature ordinarily does not intend cumulative punishment. Hunter, 459 U.S. at 366 (quoting Whalen v. United States, 445 U.S. 684, 691-92 (1980)).
The issue here is whether Reed can be sentenced both for the separate instances of delivery of cocaine and for ongoing criminal conduct. Because Reed‘s double jeopardy challenge arises from convictions in a single prosecution, our analysis begins with a search for legislative intent. See Perez, 563 N.W.2d at 628. In determining that intent, we first look to the face of the statute. See id. If, after considering the language of the statute, there is an absence of clear legislative intent for cumulative punishment, we then resort to the “same elements” test—a rule of statutory construction—articulated in Blockburger v. United States, 284 U.S. 299, 304 (1932). See id.
We need not resort to the same-elements test here because, for reasons that follow, we think the legislature intended cumulative punishment. In
Additionally, we may consider whether the statutes that were violated serve differing purposes. See State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995). Here, as the State suggests, the ongoing-criminal-conduct statute focuses on reducing the economic power of those who engage in ongoing illegal business for profit. See 1996 Iowa Acts ch. 1133. The provisions of
As mentioned, our ongoing-criminal-conduct statute and RICO serve similar purposes. On an issue like the one confronting us, the eighth circuit held:
We see “nothing in the RICO statutory scheme which would suggest that Congress intended to preclude separate convictions.” Instead, we conclude that Congress clearly intended to permit, and perhaps sought to encourage, the imposition of cumulative sentences for RICO offenses and the underlying crimes.
United States v. Kragness, 830 F.2d 842, 864 (8th Cir. 1987) (citations omitted); see also United States v. Truglio, 731 F.2d 1123, 1129 (4th Cir. 1984);
B. Merger pursuant to Iowa Code section 701.9 .
No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater offense only.
Our resolution of Reed‘s double jeopardy claim renders this section inapplicable. See Halliburton, 539 N.W.2d at 344 (holding that, if Double Jeopardy Clause is not violated because legislature intended double punishment, section 701.9 is not applicable and merger is not required).
IV. Corroboration of Accomplices’ Testimony.
The last issue Reed raises is that the district court erred in concluding there was substantial evidence corroborating two accomplices’ testimony pertaining to his possession and drug tax stamp charges. We decline to address this issue because Reed failed to properly preserve the issue for our review. See State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997) (holding that issues not raised before the district court cannot be asserted for the first time on appeal).
V. Disposition.
In sum, we conclude that
AFFIRMED.
All justices concur except CARTER, J., who concurs in part and dissents in part, and TERNUS, J., who takes no part.
CARTER, Justice (concurring in part; dissenting in part).
I concur with all of the opinion except the merger analysis in Division IIIB. On the merger issue, I believe that under the analysis of lesser included offenses applied in State v. Turecek, 456 N.W.2d 219, 223 (Iowa 1990), the offense of delivery of cocaine was a lesser included offense within the ongoing-criminal-conduct charge. For the reasons stated in my special concurring opinion in State v. Daniels, 588 N.W.2d 682, 685 (Iowa 1998), that circumstance requires merger of the two offenses pursuant to