United States v. Patrick Henry Zanzucchi and Robert Matthew Zanzucchi

The Government’s petition for rehearing is granted and the opinion published at 845 F.2d 219 is withdrawn.

Chavez, Clarke, Sandoval, P. Henry Zan-zucchi (“Hank”) and R. Matthew Zanzucchi (“Matt”) appealed their convictions for various cocaine related crimes. All but two of the counts were affirmed in an unpublished memorandum disposition (filed April 28, 1988).

In the two remaining counts, Hank and Matt (“defendants”) were each indicted and convicted of organizing and supervising a continuing criminal enterprise (“CCE”) in violation of 21 U.S.C. § 848 (1982). An element of the CCE offense is that the defendant must occupy “a position of organizer, a supervisory position, or any other position of management” with respect to five or more other persons. 21 U.S.C. § 848 . Matt filed a motion, later joined by Hank, for a bill of particulars seeking the identity of these five or more supervisees. In our opinion, published at 845 F.2d 219 (1988), we reversed the CCE convictions, finding that Hank and Matt were “affirmatively misled into believing that they would not have to prepare a defense against the assertion that other codefendants besides those named in the bill of particulars…