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Casella v. State
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MAINE SUPREME JUDICIAL COURT 				     Reporter of Decisions
Decision:	2002 ME 117
Docket:	And-01-359
Argued :	April 4, 2002
Decided:	July 26, 2002

Panel:  		CLIFFORD, RUDMAN, CALKINS, and LEVY, JJ.




                                                ANTHONY J. CASELLA

                                                                   v.

                                                  STATE OF MAINE



RUDMAN, J.

	[¶1]	Anthony J. Casella appeals from the judgment entered in the Superior
Court (Androscoggin County, Gorman, J.) denying his petition for post-
conviction review.  Casella argues that his Fourteenth Amendment Due Process
rights were violated when, during his trial for theft pursuant to one scheme or
course of conduct, the Superior Court failed to require the jury to unanimously
agree as to which specific instances comprised his criminal course of conduct.  He
contends that the decision of the United States Supreme Court in Richardson v.
United States, 526 U.S. 813 (1999), created a new constitutional right that a
defendant, who is charged under a course of conduct statute, is entitled to have the
jury unanimously find beyond a reasonable doubt which predicate crimes he
committed.  Casella also contends that this right is retroactively applicable on
collateral review.  Because we disagree that the Richardson decision created a new
constitutional right, we affirm the judgment of the Superior Court.

                            	I.  STATEMENT OF THE CASE

	[¶2]	In December of 1995, Casella was indicted on two counts of theft by
unauthorized taking, 17-A M.R.S.A. § 353 (1983).{1}  Count I charged Casella with
theft of an aggregated sum of more than $5000 from one Kari Parker.  Count II
charged him with theft pursuant to one scheme or course of conduct of an
aggregated sum of more than $5000 resulting from nineteen transactions with
nineteen different individuals.  The State aggregated these amounts pursuant to
17-A M.R.S.A. § 352(5)(E).{2}  

	[¶3]	The case was tried before a jury in the Superior Court (Androscoggin
County, Delahanty, J.).  At the close of the evidence, Casella requested the court
to instruct the jury that in order to find him guilty on Count II, it must
unanimously agree as to which of the nineteen transactions constituted thefts.  The
court denied this request and simply charged the jury that "any verdict that you
reach in this case, no matter what it is, on each of the counts must be unanimous." 
The jury convicted Casella of both counts and the court sentenced him to fourteen
years in prison with all but twelve years suspended and four years of probation.

	[¶4]	Following the entry of this judgment, Casella appealed to us and
argued, inter alia, that the court erred by not giving the unanimity instruction that
he had requested.  We concluded that there was no error in the court's instruction,
and we affirmed the judgment in a memorandum of decision.  State v. Casella,
No. 98-39, (Me. Feb. 14, 1998) (mem.).
	
  [¶5]	On June 1, 1999, the United States Supreme Court held in
Richardson v. United States, that, in cases brought under the federal continuing
criminal enterprise (CCE) statute, a federal jury must unanimously agree as to the
specific violations that the defendant committed that constitutes the continuing
series.  Richardson, 526 U.S. at 815.  Based upon the Richardson decision,
Casella filed a petition for post-conviction review in which he argued that his
Fourteenth Amendment Due Process rights were violated when the trial court
failed to give the unanimity instruction.  Although the Superior Court denied the
petition, we issued a certificate of probable cause.

                                                 II.  DISCUSSION

A. Richardson v. United States

	[¶6]	In Richardson, Eddie Richardson had been charged with violating the
federal drug statute that makes it a specific crime to "engage[ ] in a continuing
criminal enterprise."  21 U.S.C. § 848(a) (1999).  The statute defines a continuing
criminal enterprise as a "'violat[ion]' of the drug statutes where 'such violation is
a part of a continuing series of violations.'"  Richardson, 526 U.S. at 515
(quoting 21 U.S.C. § 848(c)).  At the conclusion of his trial, Richardson requested
that the judge instruct the jury that it must "unanimously agree on which three acts
constituted [the] series of violations."  Richardson, 526 U.S. at 816.  The trial
court denied this request and instructed the jury that it "must unanimously agree
that the defendant committed at least three federal narcotics offenses," and it
added that "[y]ou do not . . . have to agree as to the particular three or more
federal narcotics offenses committed by the defendant."  Id.  Richardson was
convicted of the charge and the Seventh Circuit affirmed.  Id.  The United States
Supreme Court granted certiorari.  Id.

	[¶7]	The issue before the Court was "whether a jury has to agree
unanimously about which specific violations make up the 'continuing series of
violations.'"  Id. at 815.  The Court specifically held that "a jury in a federal
criminal case brought under § 848 must unanimously agree not only that the
defendant committed some 'continuing series of violations' but also that the
defendant committed each of the individual 'violations' necessary to make up that
'continuing series.'"  Id.  It acknowledged that a federal jury does not have to
agree as to the means in which a defendant commits an element of a crime as long
as the jury unanimously finds that the defendant committed that element.  Id. at
817.  The Court determined, however, that each specific underlying violation
constituted a particular element and, therefore, juror unanimity was required.  Id.
at 816.  The Court reached this conclusion after examining the language and
breadth of the federal CCE statute, as well as the history and tradition of the
criminal law.  Id. at 818-20.

 	[¶8]	The Court first decided that the term "violation," as used in the CCE
statute, denotes "not simply an act or conduct; it is an act or conduct that is
contrary to law."  Id. at 818.  It further stated: "To hold that each 'violation' here
amounts to a separate element is consistent with a tradition of requiring juror
unanimity where the issue is whether a defendant has engaged in conduct that
violates the law."  Id. at 818-19.    

	[¶9]	The Court next examined the breadth of the statute and considered
the potential for unfairness.  It noted that the statute used the term "violations" in
order to encompass many different criminal acts with varying degrees of
seriousness.  Id. at 819.  The Court explained that this breadth "also argues against
treating each individual violation as a means, for that breadth aggravates the
dangers of unfairness that doing so would risk."  Id.
 
	[¶10]	Lastly, the Court considered the constitutional tradition of requiring
jury unanimity in criminal cases:


[T]he Constitution itself limits a State's power to define
crimes in ways that would permit juries to convict while
disagreeing about means, at least where that definition
risks serious unfairness and lacks support in history or
tradition . . . . We have no reason to believe that
Congress intended to come close to, or to test, those
constitutional limits when it wrote this statute.


Id. at 820 (citations omitted).  The Court decided that the "considerations [of
language, potential unfairness, and tradition], taken together, lead us to conclude
that the statute requires jury unanimity in respect to each individual 'violation.'" 
Id. at 824.

B.  15 M.R.S.A. § 2128(5) (Supp. 2001)

	[¶11]	Before we reach Casella's Due Process arguments, however, we must
first determine whether his petition was timely.  In Maine, all petitions for post-
conviction review must meet a one-year statute of limitations.  15 M.R.S.A.
§ 2128(5).  This period begins to run from the latest of the following:


A. The date of final disposition of the direct appeal
from the underlying criminal judgment or the expiration
of the time for seeking the appeal;

B. The date on which the constitutional right, state or
federal, asserted was initially recognized by the Law
Court or the Supreme Court of the United States, if the
right has been newly recognized by that highest court
and made retroactively applicable to cases on collateral
review; or

C. The date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.


Id. at 2128(5)(A)(C).  Casella concedes that in order for his petition to be timely,
he must satisfy subsection B.  To this end, he asserts that the Richardson decision
created a new constitutional right that is retroactively applicable to his case on
collateral review.  

	[¶12]	According to Justice O'Connor's concurring opinion in Teague v.
Lane, 489 U.S. 288, 301 (1989), "a case announces a new rule when it breaks new
ground or imposes a new obligation on the States or Federal Government."  We
conclude, however, that the Richardson decision applied previously existing
constitutional principles concerning the government's burden of proving every
element of the crime charged, federal jury unanimity, and Due Process
considerations to one federal statute.  This is evident from the Court's focus on
the federal CCE statute's specific language and breadth.  Richardson, 526 U.S. at
817-19.  Although Richardson provides a method of analysis that courts are to use
when determining the elements of course of conduct statutes, it does not attempt
to delineate the elements of all such statutes.  See United States v. Verrecchia, 196
F.3d 294 (1st Cir. 1999).  The decision does not espouse a blanket requirement
that all juries, federal and state, deliberating upon these statutes, unanimously
agree as to the specific underlying conduct that constitutes its ultimate verdict.  To
the contrary, whether a course of conduct statute requires unanimity depends upon
the particulars of that statute and, therefore, Richardson cannot be said to have
created a new constitutional right.  United States v. Lopez, 248 F.3d 427, 430 (5th
Cir. 2001) (finding that Richardson created a new statutory right as opposed to a
constitutional right).  
	[¶13]	Because the Richardson decision does not create a new constitutional
right, as required by section 2128(5), Casella's petition is time-barred.  We need
not address Casella's Due Process contentions.

	The entry is:

			Judgment affirmed.

Attorneys for plaintiff:

Mary A. Davis, Esq.     (orally)
Stuart Tisdale, Esq.
P O Box 572
Portland, ME 04112

Attorneys for State:

G. Steven Rowe, Attorney General    (orally)
Donald W. Macomber, Asst. Attorney General
Leanne Robbin, Asst. Attorney General
6 State House Station
Augusta, ME 04333-0006

FOOTNOTES******************************** {1} . At the time of Casella's trial, the theft of property or services valuing more than $5000 was a Class B crime. 17-A M.R.S.A. § 362 (1983). {2} . Maine's theft aggregation statute at the time of Casella's conviction read: Amounts of value involved in thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated to charge a single theft of appropriate class or grade. Subject to the requirement that the conduct of the defense may not be prejudiced by lack of fair notice or by surprise, the court may at any time order that a single aggregated count be considered as separate thefts. No aggregated count of theft shall be deemed duplicitous because of such an order and no election shall be required. Prosecution may be brought in any venue in which one of the thefts which have been aggregated was committed. 17-A M.R.S.A. § 352(5)(E) (1983).