Title United States v. Russell
Date 1998
By
Subject Other\Concurring & Dissenting
Contents
Page 1
31 of 79 DOCUMENTS
UNITED STATES OF AMERICA v. JAMES RUSSELL, aka GAITH JUNIOR DOUGLAS, aka STEVEN SHAWN JONES JAMES RUSSELL, a/k/a Steven Shawn Jones, Appellant.
No. 96-7760
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
134 F.3d 171; 1998 U.S. App. LEXIS 767
August 11, 1997, Argued
January 16, 1998, Filed
PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (D.C. Criminal No. 94-cr--00314-1).
DISPOSITION: Reversed Russell's conviction and va- cated his sentence on the CCE count, and remanded for further proceedings consistent with this opinion.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant sought review of the decision of the United States District Court for the District of Pennsylvania, which convicted appellant of conspiracy to distribute controlled substances in vio- lation of 21 U.S.C.S. § 846, and conducting a continuing criminal enterprise in violation of 21 U.S.C.S. § 848. The district court sentenced appellant to two concurrent life terms.
OVERVIEW: Appellant was convicted of conspiracy to distribute controlled substances in violation of 21 U.S.C.S.
§ 846, and conducting a continuing criminal enterprise in violation of 21 U.S.C.S. § 848. The district court sen- tenced appellant to two concurrent life terms. Appellant sought review. On appeal, the court reversed appellant's conviction for conducting a continuing criminal enter- prise, vacated his sentence on that count, and remanded. The court held that the district court's failure to give a spe- cific unanimity instruction to the jury on the 21 U.S.C.S.
§ 848 count violated appellant's U.S. Const. amend. VI right to a unanimous verdict. The court held that § 848 required a finding of a continuing series of violations, which consisted of three or more separate violations, and required unanimous agreement as to the identity of each of the three related offenses. The court found that the ju- rors might well have agreed that a continuing series of violations had occurred, yet disagreed as to the identity
of the three related offenses. An objection to a jury charge was sufficient when it put the trial judge on notice of the both the objection and the its underlying basis.
OUTCOME: The court affirmed in part, and reversed in part appellant's conviction for conducting a continuing criminal enterprise and conspiracy to distribute controlled substances. The court vacated part of appellant's sentence and remanded. The court held that a non-unanimous ver- dict could not have been affirmed just because the evi- dence was so overwhelming that the jury would have been unanimous if it was properly instructed on unanimity.
LexisNexis(R) Headnotes
Criminal Law & Procedure > Jury Instructions > Particular Instructions > Unanimity
HN1 In most cases a general unanimity instruction is sufficient to support a conviction. A specific unanimity instruction is required where the complexity of the case, or other factors, creates the potential that the jury will be confused.
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale
HN2 The continuing criminal enterprise statute, 21
U.S.C.S. § 848, requires unanimous agreement as to the identity of each of the three related offenses comprising the continuing series.
Criminal Law & Procedure > Jury Instructions > Objections
HN3 Fed. R. Crim. P. 30 provides that no party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objec- tion.
Criminal Law & Procedure > Jury Instructions >
134 F.3d 171, *; 1998 U.S. App. LEXIS 767, **1
Page 2
Objections
HN4 An objection must be specific enough not only to put the judge on notice that there is in fact an objec- tion, but to serve notice as to the underlying basis for the objection.
Criminal Law & Procedure > Appeals > Standards of
Review > Plain Error
HN5 For there to be plain error, there must be an "error" that is "plain" and that affects substantial rights. A devia- tion from a legal rule is "error." A "plain" error is one that is "clear" or "obvious."
Criminal Law & Procedure > Appeals > Standards of
Review > Harmless & Invited Errors
HN6 Under a harmless error review, if the court finds a constitutional error, the court may affirm the district court only if the error is harmless beyond a reasonable doubt. Criminal Law & Procedure > Jury Instructions > Particular Instructions > Unanimity
HN7 The court cannot affirm a non-unanimous verdict simply because the evidence is so overwhelming that the jury surely would be unanimous if it is properly instructed on unanimity.
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale
HN8 The continuing criminal enterprise statute requires that the defendant participate in a "continuing series" of violations of the federal drug laws. 21 U.S.C.S. § 848. A "continuing series" consists of three or more separate violations.
COUNSEL: Michael J. Zicolello (ARGUED), Schemery
& Zicolello, Williamsport, PA, Attorney for Appellant. George J. Rocktashel (ARGUED), Office of United States Attorney, Williamsport, PA, Attorney for Appellee. JUDGES: BEFORE: ALITO, LEWIS and McKEE, Circuit Judges. ALITO, Circuit Judge, concurring and dissenting.
OPINIONBY: LEWIS
OPINION: *174
OPINION OF THE COURT
LEWIS, Circuit Judge.
James Russell was convicted of conspiracy to dis- tribute controlled substances in violation of 21 U.S.C.
§ 846, and conducting a continuing criminal enterprise
(CCE) in violation of 21 U.S.C. § 848. He was sentenced to two concurrent life terms.
Russell's appeal presents a number of challenges to his convictions, the primary one being that the district court failed to instruct the jury properly on the CCE count. We will discuss each of Russell's challenges in turn, focus- ing in more detail on his claim that the CCE instruction deprived him of **2 his Sixth Amendment right to a unanimous jury verdict.
We will conclude that the jury instruction on the CCE count was erroneous and was not harmless error. Accordingly, we will reverse Russell's conviction under the CCE statute. We will affirm his convictions on all other counts.
134 F.3d 171, *175; 1998 U.S. App. LEXIS 767, **2
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*175
I.
A. Facts
Russell and four others were charged with conduct- ing a continuing criminal enterprise (Count I), conspir- acy to distribute controlled substances (Count II), and money laundering (Count III). The indictment also sought the forfeiture of property and assets obtained with pro- ceeds of drug sales, pursuant to 21 U.S.C. § 853(p). App. at 53. Three of Russell's co-defendants, Mark Smith, Richard Francis Robinson and Arthur Lester Raymond, pleaded guilty to the conspiracy charge and testified against Russell at trial.
Russell's trial commenced in June 1995 and lasted ap- proximately six weeks. The testimony outlined a complex and lucrative scheme, organized by Russell, to distribute drugs in Pennsylvania, initially in Philadelphia and later in Williamsport. Essentially, Russell, Robinson, Smith and Raymond pooled their funds to make large purchases of cocaine base and cocaine powder from suppliers **3 in New York. The drugs were repackaged and distributed to sellers in Pennsylvania, and then sold on the street in
$10 or $20 bags.
In addition to conducting his own distribution net- work in Williamsport, Russell also supplied cocaine to other distributors operating networks there. Specifically, Russell developed a business relationship with one David Williams. Russell would supply Williams with cocaine, which Williams would then sell from a location known as the "pink house." Over time, Williams permitted Russell to sell cocaine directly out of the "pink house." Russell's co-conspirators were not permitted to sell drugs out of this location.
B. Weapons Use
Testimony at trial also revealed that between 1990 and 1994, Russell had his girlfriend, Melita Garcia, pur- chase a number of guns for him. Garcia testified that she purchased the weapons with cash given to her by Russell. Although there was no testimony relating to Russell's spe- cific use of the guns during particular drug transactions,
the government introduced evidence, over Russell's ob- jection, pertaining to Russell's arrest in 1991 in Maple Shade, New Jersey. At the time of the arrest, Russell was traveling with Mark **4 Smith from New York where they had purchased cocaine from one of Russell's sources. When the car was stopped, the police discovered a gun in the trunk, together with 473 grams of cocaine and pack- aging material. Russell pleaded guilty to the gun charge and was released for time served.
Another witness, Andre Grimes, testified that in an- other incident relating to the drug operation, Russell used a knife to assault George Felder. Grimes testified that in October 1994, he and Russell assaulted Felder because Felder had allegedly stolen approximately $400 to $500 in drug proceeds belonging to Russell. App. at 383-85. Grimes explained that when he and Russell approached Felder about the stolen money, Felder had a knife. App. at 385. Grimes testified that he felt threatened, picked up a bat and started hitting Felder with it. Id. He further testi- fied that when Felder dropped the knife, Russell picked it up and "started slicing him with it." Id. at 386. On the basis of this testimony, the court assessed a two-level increase to Russell's base offense level for possessing a dangerous weapon during the course of the offense, pursuant to §
2D1.1(b)(1) of the Sentencing Guidelines. **5
C. Sentence
To compute Russell's offense level under the Sentencing Guidelines, the district court held a hear- ing concerning the quantity of drugs attributable to him. Ultimately, the court concluded that the quantity of drugs for which Russell was responsible could not be discerned from the trial testimony, and that "the best estimate avail- able to the court of a drug quantity for which Russell is responsible is found in the stipulations regarding drug quantity to which Russell's coconspirators entered after pleading guilty to conspiring with Russell." App. at 137. Because Russell's co-conspirators stipulated that they were responsible for quantities not exceeding 20 kilo- grams of powder cocaine and 250 grams of cocaine base, the court determined that Russell was responsible for the same amount. Thus, the court assessed
134 F.3d 171, *176; 1998 U.S. App. LEXIS 767, **5
Page 4
*176 Russell's base offense level, under § 2D1.5(a)(1), at 38. With the two-level increase for possession of a firearm and a two level increase for obstruction of jus- tice, Russell's resulting offense level was 42. Applied to his criminal history category of II, his resulting impris- onment range under the Sentencing Guidelines was 360 months to life.
Russell appeals **6 the conviction and sentence entered by the district court. The district court had juris- diction under 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 1291.
II.
A. The CCE Statute & Specific Unanimity
The CCE statute under which Russell was convicted requires that the government prove the following ele- ments: (1) that the defendant committed a drug-related felony under U.S.C. Title 21, Chapter 13, subchapter I or II; (2) that this violation was part of a "continuing series of violations" of the subchapter; (3) that the defendant acted as an organizer, supervisor or manager of five or more other persons in committing this series of violations; and
(4) that the defendant obtained "substantial income or resources" from such activities. 21 U.S.C. § 848.
At issue here is the second element, which requires proof that "such violation is a part of a continuing series of violations." Id. With respect to this issue, the trial judge instructed the jury as follows:
The phrase, a continuing series of vi- olations means three or more violations of the federal narcotics laws which are in some way -- laws which are in some way related to each other. In order to find **7 that this element has been established, you must unanimously agree that the Defendant, Mr. Russell, participated in at least three or more violations of the federal narcotics laws which are in some way related to each other
App. at 2094. Russell claims that the district court's in- struction failed to advise the jury of the requirement that
they unanimously agree as to the identity of the three re- lated drug offenses constituting the criminal enterprise. Appellant's Br. at 27. At trial the government introduced substantial evidence of Russell's drug-related activity. But Russell claims that the general unanimity instruction per- mitted the jury to convict him so long as each juror was convinced that he had committed a series comprised of any three related drug violations, regardless of whether they unanimously agreed as to the identity of each under- lying violation. See, e.g., United States v. Edmonds, 80
F.3d 810, 814 (3d Cir. 1996) ("For example, six jurors may have felt that violations A, B, and C (but no others) were related, and the other six jurors may have concluded that violations D, E, and F (but no others) were related."). While it is true that HN1 in most **8 cases a general unanimity instruction is sufficient to support a conviction, see United States v. Beros, 833 F.2d 455, 460
(3d Cir. 1987), a specific unanimity instruction is required
"where the complexity of the case, or other factors, cre- ates the potential that the jury will be confused." Id.; cf. United States v. Ryan, 828 F.2d 1010, 1020 (3d Cir.), rev'd on other grounds, United States v. Wells, 519 U.S.
482, 137 L. Ed. 2d 107, 117 S. Ct. 921 (1997) ("In any case where a count will be submitted to the jury on al- ternative theories, prudence counsels the trial court to give an augmented unanimity instruction if the defendant requests such a charge. Unanimity is an indispensable el- ement of a federal jury trial.") (internal citation omitted). The purpose of a specific unanimity instruction is to en- sure that the jurors are "in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged." Beros, 833 F.2d at 460 (quoting United States v. Gipson,
553 F.2d 453, 457-58 (5th Cir. 1977)).
In Edmonds, we had to decide whether jury instruc- tions relating to a charge under the CCE statute must direct **9 the jury to agree unanimously on which of the alleged violations constitute the continuing series re- quired by the statute. We held that a general unanimity instruction was insufficient to support a conviction un- der the CCE statute, concluding that the statute "requires unanimous agreement as to the identity of each of
134 F.3d 171, *177; 1998 U.S. App. LEXIS 767, **9
Page 5
*177 the three related offenses comprising the continu- ing series." n1 Edmonds, 80 F.3d at 822 (emphasis added). Our decision in Edmonds was rooted in the principle that a federal defendant in a criminal trial has a constitutional right to a unanimous jury verdict. Id. at 823 ("The district court's failure to give . . . the proposed specific una- nimity instruction was error . . . implicating Edmonds's Sixth Amendment right to a unanimous verdict in a fed- eral criminal trial."); see also, Andres v. United States,
333 U.S. 740, 748, 92 L. Ed. 1055, 68 S. Ct. 880 (1948)
("Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply."); Beros, 833 F.2d at
461 ("Just as the sixth amendment requires jury unanim- ity in federal criminal cases on each delineated offense that it finds a defendant culpable, it must also require unanimity **10 regarding the specific act or acts which constitutes that offense.") (internal citation omitted).
n1 In United States v. Echeverri, 854 F.2d
638 (3d Cir. 1988), we held that a jury consid- ering a CCE charge must unanimously agree on which three acts constitute the continuing series of violations. In Edmonds, sitting en banc, we ex- plicitly recognized "the opportunity to reconsider Echeverri" and reaffirmed the decision reached in that case. 80 F.3d at 812.
The jury instruction at issue in this case is constitution- ally deficient in the same manner as was the instruction in Edmonds. In Edmonds, the trial court instructed the jury as follows:
The government has to prove that such vi- olation was part of a continuing series of re- lated violations of the federal narcotics laws. A continuing series of violations requires proof beyond a reasonable doubt that three or more violations of the laws occurred and that they, those three or more, were related to each other.
80 F.3d at **11 813. Although Russell's jury was instructed that they must "unani- mously agree" that he "participated in at least three or more violations of the federal nar- cotics laws," App. at 2094, this charge still amounted to a general, not a specific, una- nimity instruction. The jury should have been instructed that unanimous agreement was re- quired not only to find the existence of a con- tinuing series, but in determining the compo- sition of that series. Our holding in Edmonds was clear: HN2 "the CCE statute requires
unanimous agreement as to the identity of each of the three related offenses comprising the continuing series." Edmonds, 80 F.3d at
822 (emphasis added); see also Gipson, 553
F.2d at 456-57 ("The unanimity rule . . . re- quires jurors to be in substantial agreement as to just what a defendant did as a step prelim- inary to determining whether the defendant is guilty of the crime charged.")
To be sure, the government introduced compelling evidence that Russell had, in fact, engaged in a large number of drug-related transactions, any number of which could have been the basis for an individual juror's determination that he had participated in a continuing series of violations **12 under the CCE statute. But the instruction given by the district judge permitted the jurors to convict on the CCE count even if different jurors determined that Russell had commit- ted different acts. Although the jurors may, in fact, have unanimously agreed on a particu- lar set of predicate acts, we cannot speculate as to the content of the jury's deliberations. See United States v. Beros, 833 F.2d 455,
461 (3d Cir. 1987) (" 'We are not free to hy- pothesize whether the jury indeed agreed to and was clear on the' transaction or theory by which it found the defendant guilty.")
(quoting United States v. Echeverry, 698 F.2d
375, modified, 719 F.2d 974 (9th Cir. 1983)
(en banc)). Thus, because the jurors may well have agreed that a continuing series of vio- lations had occurred, yet disagreed as to the identity of the three related offenses compris- ing the series, we conclude that the district court's failure to give a specific unanimity charge violated Russell's Sixth Amendment right to a unanimous verdict. n2
n2 We do not suggest that in ad- dition to a specific unanimity charge, a special verdict form must be submit- ted to the jury requiring it to enumerate the specific predicate acts which it has determined constitute the continuing series. Nor do we believe it appropri- ate to prescribe specific language to be used when charging a jury with re- spect to the continuing series element of a CCE count. Just how the goal of ensuring unanimous agreement is bet- ter left to the insight and experience of
134 F.3d 171, *177; 1998 U.S. App. LEXIS 767, **12
Page 6
district court judges on a case by case basis. We merely reaffirm our holding in Edmonds that the jury be instructed to reach unanimous agreement on the
identity of the offenses constituting the continuing series.
**13
134 F.3d 171, *178; 1998 U.S. App. LEXIS 767, **13
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*178
B. Standard of Review
1. Preservation of Issue for Appeal
Though we have concluded that the charge on the CCE continuing series element was error, we must neverthe- less determine whether it constituted reversible error. The government argues, and the dissent agrees, that Russell failed to preserve this issue, and thus the standard of re- view is plain error. For the following reasons, we believe that the issue was properly preserved, and therefore re- view for harmless error. HN3 Rule 30 of the Federal Rules of Criminal Procedure provides that:
No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury re- tires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.
The purpose of this provision is to allow the district court an opportunity to correct potential problems in jury in- structions before the jury begins its deliberations. See United States v. Logan, 717 F.2d 84, 91 (3d Cir. 1983)
("Rule 30 has the manifest purpose of avoiding whenever possible the necessity of a time-consuming new trial by providing the trial judge with an **14 opportunity to correct any mistakes in the charge before the jury begins to deliberate.") (internal citation omitted).
The trial record in this case discloses the following sequence of events with respect to the charge. First, the judge gave a CCE charge which did not require spe- cific unanimity with respect to the continuing series of offenses. App. at 2091-99. Next, the judge stated that the he would meet with counsel to "find out any ob- jections or exceptions to the charge," and dismissed the jury for lunch. App. at 2141. During the ensuing confer- ence, the prosecutor and defense counsel engaged in a discussion concerning the applicability of the Edmonds case. Russell's counsel argued that a special verdict was required by Edmonds. The government argued that the instruction as given was consistent with Edmonds. App. at 2145. The court then stated that it would consider the issue during the lunch break, App. at 2145, but the issue was not revisited. Although Russell's counsel did not ex- plicitly state that he was objecting to the CCE instruction, n3 the colloquy between the court and counsel regarding the Edmonds case, and the context in which this conver- sation took **15 place (an on-the--record conference to discuss objections and exceptions to the charge), lead us to conclude that the trial judge had sufficient notice of a possible error in the CCE jury instruction. As we noted earlier, the crux of Rule 30 is that the district court be given notice of potential errors in the jury instructions, not that a party be "required to adhere to any formalities of language and style to preserve his objection on the record." United States v. O'Neill, 116 F.3d 245, 247 (7th Cir. 1997) (internal citations omitted). n4 Russell's trial counsel alerted
134 F.3d 171, *179; 1998 U.S. App. LEXIS 767, **15
Page 8
*179 the court to his belief that the charge as given did not comply with our decision in Edmonds, and the judge's statement that he would review the issue suggests that the court understood this as an objection (or at the very least, a point of disagreement with the charge as given).
n3 Defense counsel made the following state- ment to the judge:
You asked about the form, the form of the verdict and whether I thought that there was any change that needed to be made. I was attempting to point out that my interpretation of Edmonds seems to suggest that there is a need for a special verdict page that requires the jury to fill in three blank lines of which three federal felony offenses that have unanimously agreed upon having been committed by the defendant.
**16
n4 To the extent this sentiment has been ex- pressed even more clearly in the civil context, it serves to further demonstrate why the dissent relies upon an overly formalistic interpretation of Rule
30 and its requirements. Interpretations of Rule
51 of the Federal Rules of Civil Procedure, the civil analog to Rule 30, indicate that formal ob- jections are not required. See, e.g., Larry V. Muko, Inc. v. Southwestern Pennsylvania Bldg. and Const. Trades Council, 670 F.2d 421, 425 (3d Cir. 1982)
(issue preserved for appeal where the party "may not have formally objected to the jury charge, but it is clear from the record that the judge was made aware of the party's position before the jury retired to consider its verdict") (internal citation omitted); Kroger Co. v. Roadrunner Transp., Inc., 634 F.2d
228, 230 (5th Cir. 1980) ("The Rule does not require formality, and it is not important in what form an objection is made or even that a formal objection is made at all, as long as it is clear that the trial judge understood the party's position . . . The purpose of the Rule is to inform the trial judge of possi- ble errors so that he may have an opportunity to correct them.") (emphasis added) (internal citation omitted). The dissent relies heavily upon Rule 30's admonition that a party state "distinctly the matter to which the party objects and the grounds of the objection." This language is virtually identical to that in Rule 51 which states that a party must "state distinctly the matter objected to and the grounds
of the objection." Thus, while we agree with Judge Alito's statement that Rule 30 "is a vitally important rule," we also believe it would be nonsensical not to furnish criminal defendants with the same flexible, common-sense interpretation we afford litigants in the civil context.
**17
Certainly, HN4 an objection must be specific enough not only to put the judge on notice that there is in fact an objection, but to serve notice as to the underlying basis for the objection. United States v. Sandini, 803 F.2d 123
(3d Cir. 1986). For example, in Sandini we determined that the substance of a colloquy between the judge and defense counsel was insufficient to have put the trial judge on notice that an objection was based on Rule 404(b) of the Federal Rules of Evidence, because defense counsel simply repeated three times that the information was "ir- relevant." 803 F.2d at 126. Here, however, the trial court was put on notice that Russell believed that the instruc- tion was incorrect because it lacked the requisite speci- ficity, and that the basis for this belief was our decision in Edmonds. n5
Finally, the context in which the colloquy between the court and the attorneys took place provides an addi- tional basis for concluding that a proper objection was made. The judge convened this on-the--record meeting specifically to "find out any objections or exceptions to the charge." App. at 2141. This is, of course, a common practice in both
criminal and civil trials and **18 serves as an invitation to counsel to suggest corrections or amendments to the charge, or to state or reiterate objections. Defense counsel took this opportunity to engage the court and prosecutor in an extended debate about whether or not the jury instruc- tion at issue was consistent with Edmonds. We believe the court must have understood that Russell's counsel was stating an objection to the charge as given; thus, this issue was properly preserved for our review. n6
n5 We do not share the dissent's concern that during the colloquy, Russell's counsel argued that Edmonds required a special verdict form, see note
4, a position we have refused to adopt in this case. The dissent urges that we have committed a "serious error" by obscuring the distinction between an ob- jection to a jury instruction and a request for a spe- cial verdict sheet, but we have done no such thing. To be clear, the only relevance we have placed on the defendant's request for a special verdict sheet is that it put the judge on notice that specific unanimity was needed. True, Russell's counsel, in requesting a special verdict form, may have overemphasized
134 F.3d 171, *179; 1998 U.S. App. LEXIS 767, **18
Page 9
what Edmonds required. But it is undeniable that his remarks were sufficient to put the trial court on notice that, at the very least, he did not be- lieve that the charge as given was in compliance with our holding in Edmonds. See United States v. Rosero, 31 V.I. 317, 42 F.3d 166, 173 (3d Cir.
1994) (Although alternative instruction advanced by defendant "was also erroneous," defense coun- sel, in objecting to court's charge, provided a clear explanation as to why the instruction was erroneous and therefore "preserved valid objections to the er- roneous portion of the instructions.") Specifically, defense counsel called the judge's attention to the relevant language in Edmonds, which the judge in- dicated he would read. Ultimately, it was for the court to determine whether Edmonds required a special verdict form or simply a specific unanimity instruction. No such determination was ever made.
**19
n6 The dissent also urges that because Russell's counsel objected to instructions 51 and 43 (neither
of which had anything to do with Edmonds), but failed to object to the general unanimity instruc- tion at the same time, the issue was not preserved. However, as we have noted, Russell's counsel be- lieved that a special verdict form was required by Edmonds. This belief, while incorrect, was not un- reasonable. At the time Russell's counsel specifi- cally objected to jury instructions 51 and 43, he did not know that the judge would not be using his proposed special verdict form. Although a special verdict form is not required, from the perspective of Russell's counsel a general unanimity instruction coupled with a special verdict form would have as- sured specific unanimity. Therefore, defense coun- sel had no reason to object to the unanimity instruc- tion until the judge had ruled on his request for a special verdict. Again, the underlying purpose of Rule 30 is to put the judge on notice as to potential errors. Here, as we discussed above, we believe the judge was put on notice of an Edmonds problem.
**20
134 F.3d 171, *180; 1998 U.S. App. LEXIS 767, **20
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*180
2. Proposed Alternative Instruction
In addition to posing his objection, Russell's coun- sel proposed an alternative jury instruction, one which required specific unanimity as to the series of offenses under the CCE count. In our view, this constitutes an ad- ditional ground for applying a harmless error standard in this case. n7
n7 Defendant's proposed jury instruction Number 41 stated in pertinent part that "you as a jury, must agree unanimously on the three acts which constitute the continuing series of Federal Drug Law violations." Appellee's Supplemental Appendix at 25.
The failure to give the defendant's proposed jury in- struction formed the primary basis for our decision in Edmonds. While our holding was certainly premised upon our discussion as to whether the court's charge was suf- ficient to assure jury unanimity, our primary focus was whether "the court's failure to give the defendant's pro- posed specific unanimity instruction" constituted error. Edmonds, 80 F.3d at 823.
Although it is **21 unclear that proposing an alter- native jury instruction is itself sufficient to preserve the issue for appeal, at least two of our cases have indicated that the plain error standard will be applied when there has been no specific objection to the charge as given and no alternative jury instruction has been submitted. See, e.g., Beros, 833 F.2d at 458 ("review under the more defer- ential 'plain error' standard is appropriate in cases where no objection to jury instructions is made, or where no alternative jury instructions are proposed") (internal cita- tions omitted); United States v. DeCarlo, 458 F.2d 358,
370 (3d Cir. 1972) (plain error analysis is applied "in the absence of an alternative request or specific objection" to the charge). Other circuits have employed this analy- sis as well. See, e.g., United States v. Payseno, 782 F.2d
832, 834 (9th Cir. 1986) (Where defendant "did not re-
quest a specific unanimity instruction and failed to object to the court's instructions as given" appellate court will review for plain error.); United States v. Donathan, 65
F.3d 537, 540 (6th Cir. 1995) ("Since defendant neither requested nor submitted an alternative **22 instruc- tion, and did not object to the instructions given by the trial judge, the jury instructions are reviewable only for plain error."). However, at least two circuits have indicated that proposing an alternative jury instruction, without more, is insufficient to preserve the issue. See United States v. Tannenbaum, 934 F.2d 8, 14 (2d Cir. 1991) ("Requested instructions do not substitute for specific objections to the court's instructions.") (quoting United States v. Graziano,
710 F.2d 691, 696 n.8 (11th Cir. 1983).
Because we hold that the colloquy between the district judge and trial counsel was tantamount to an objection and therefore sufficient to preserve this issue for our review, we need not determine here whether or not proposing an alternative instruction would be sufficient in and of itself to avoid a plain error standard of review. However, un- der the facts of this case, where defense counsel not only proposed an alternative jury instruction but engaged the court and prosecutor in a colloquy regarding an alleged error in the charge, the issue was sufficiently preserved to invoke a harmless error analysis.
3. Plain Error Analysis
We have concluded that **23 the appropriate stan- dard of review in this case is harmless error. The govern- ment took the position at oral argument that the appropri- ate standard is plain error. The dissent agrees. Ultimately, however, we believe the jury charge constituted reversible error even under the more deferential plain error standard.
HN5 For there to be plain error, there must be an
"error" that is "plain" and that "affects substantial rights."
United States v. Retos, 25 F.3d 1220, 1228 (3d Cir. 1994)
(quoting United States v. Olano, 507 U.S. 725, 123 L. Ed.
2d 508, 113 S. Ct. 1770 (1993)). A deviation from a legal rule is "error." Id. at 733. A "plain" error is one which is
"clear" or "obvious." Id. at 734. In this case the court
134 F.3d 171, *181; 1998 U.S. App. LEXIS 767, **23
Page 11
*181 erred when it "deviated from the legal rule" that jurors must be instructed as to the requirement of spe- cific unanimity to find a continuing series under the CCE statute. Furthermore, the error was plain in that it was
"clear" and "obvious" from even a cursory reading of our decision in Edmonds that a finding of specific unanimity was required to sustain a CCE conviction. Edmonds, 80
F.3d at 822; see also United States v. Stansfield, 101 F.3d
909, 920 **24 (3d Cir. 1996) (omission of essential element of offense from jury instructions "usually will be obvious error," therefore satisfying the requirements that there be "error" and that the error be "plain").
Having determined that the error was plain, we must now examine whether the error "affected substantial rights," thus constituting reversible error under plain error review. See Retos, 25 F.3d at 1228. We have no hesitation in concluding that the error did affect a substantial right of Mr. Russell -- his constitutional right to a unanimous jury verdict on each element of the CCE charge. The Supreme Court has held that due process requires "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which the defendant is charged." United States v. Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993) (quoting In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970)). See Government of 14 Virgin Islands v. Brown, 685 F.2d 834 (3d Cir. 1982) ("The omission of an essential element of an offense in the charge to the jury ordinarily constitutes plain error.") At least one other circuit has found plain error under circumstances simi- lar **25 to those presented here. See United States v. Payseno, 782 F.2d 832, 836-37 (9th Cir. 1986) (after trial court gave a general unanimity instruction, the reviewing court found that there was a genuine possibility that the jurors were not unanimous as to which of the charged offenses supported the verdict, and held that the failure to give a specific unanimity instruction therefore constituted plain error).
C. Harmless Error Analysis
HN6 Under a harmless error review, if we find a con- stitutional error, we may affirm the district court "only if
the error is harmless beyond a reasonable doubt." United
States v. Molina-Guevara, 96 F.3d 698, 703 (3d Cir. 1996)
(citing Chapman v. California, 386 U.S. 18, 24, 17 L. Ed.
2d 705, 87 S. Ct. 824 (1967)). Under the facts of this case, we cannot conclude that the error in the charge to the jury was harmless beyond a reasonable doubt, and therefore must reverse.
Although the government introduced a vast array of evidence regarding Russell's drug-related activity, and the jury determined that Russell was engaged in a con- tinuing series of violations, as we discussed above, it is impossible to conclude beyond a reasonable doubt that
**26 the jury reached unanimous agreement as to which specific violations occurred. Therefore, we can only con- clude that Russell was deprived of his Sixth Amendment right to a unanimous jury verdict. See, e.g., Beros, 833
F.2d at 463 ("Because there is a significant possibility that this error may have resulted in a non-unanimous verdict in violation of the Sixth Amendment, the district court's instructions were not harmless beyond a reason- able doubt."). Despite the enormous volume of evidence introduced against Russell, " HN7 we cannot affirm a non-unanimous verdict simply because the evidence is so overwhelming that the jury surely would have been unanimous had it been properly instructed on unanimity." Edmonds, 80 F.3d at 824.
In Edmonds we ultimately determined that the failure of the court to provide a specific unanimity instruction was harmless error. But the facts which formed the basis for that conclusion are not present in this case. In Edmonds, the defendant was convicted of every violation alleged to constitute the continuing series for the CCE charge. Edmonds, 80 F.3d at 812-13. We did not have to spec- ulate whether the jurors reached agreement as to **27 the identity of each of the three offenses constituting the series, because we had a jury verdict which demonstrated that each juror believed the defendant to be guilty of all of the violations constituting the series.
Russell, on the other hand, was not charged separately with all of the underlying
134 F.3d 171, *182; 1998 U.S. App. LEXIS 767, **27
Page 12
*182 offenses which, according to the government, constituted the continuing series for the CCE count. n8
Although he was convicted of conspiracy to distribute controlled substances, and the government has urged that this is the "functional equivalent" of a finding of unanimity on the continuing criminal enterprise charge, Appellee's Br. at 34-35, we cannot agree. The jury returned a unan- imous verdict on the conspiracy charge, but we can only conclude from this that the jury agreed that Russell was guilty of that one predicate offense.
n8 Although Russell was charged with multiple counts, only the count of conspiracy to distribute controlled substances under 21 U.S.C. § 846 could qualify as a CCE predicate act, because the CCE statute expressly requires that the violations consti- tuting the continuing series be of U.S.C. Title 21, Chapter 13, subchapter I or II. 21 U.S.C. § 848.
- - - - - - - - - - - - - - - ---End Footnotes- - - - -
- - - - - - - - - - - HN8 -
**28
The CCE statute requires that the defendant partici- pate in a "continuing series" of violations of the federal drug laws. 21 U.S.C. § 848. We have held that a "contin- uing series" consists of three or more separate violations. Echeverri, 854 F.2d at 643. A jury finding that the de- fendant was guilty of a single predicate act cannot be the
"functional equivalent" of a jury finding that the defendant participated in a continuing series of three violations. It is on this basis that we hold that the district court's failure to instruct the jury as to the requirement of specific una- nimity for the continuing series element did not amount to harmless error.
D. Conclusion
In summary, we hold that the jury instruction at is- sue was erroneous because it failed to apprise the jury of their responsibility to unanimously agree on the identity of the three predicate violations constituting the contin- uing series required for a CCE conviction. Furthermore, the failure to give a proper unanimity instruction consti- tutes reversible error under either a harmless error or plain error standard of review. Accordingly, we will reverse the defendant's conviction under 21 U.S.C. § 848, the CCE
statute. **29
III.
Russell has raised a number of other challenges to his conviction, none of which has merit. We will discuss each of them in turn.
A. Alleged Evidence of Multiple Conspiracies
Russell contends that his rights were prejudiced by the admission of evidence of multiple conspiracies at variance with the single conspiracy alleged in the in- dictment. Specifically, Russell maintains that evidence relating to his activity at the "pink house" and drug ac- tivity in Philadelphia illustrate the existence of two other conspiracies separate from the Williamsport conspiracy charged in the indictment. Russell argues that he has been prejudiced because this evidence permitted the jury
"to consider offenses unrelated to the Williamsport con- spiracy when determining his guilt on the conspiracy count." See Appellant's Br. at 30-38. We disagree. Russell has not been prejudiced because the evidence offered by the government supports the finding of a single con- spiracy encompassing the drug activities in Williamsport, Philadelphia and the "pink house."
To determine whether a series of events constitutes a single conspiracy or separate, unrelated conspiracies, a three-step inquiry is required: **30 (1) determining whether there was a common goal among the conspira- tors; (2) examining the nature of the scheme and deter- mining whether the agreement sought to bring about a continuous result which could not be sustained without the continued cooperation of the conspirators; and (3) ex- amining the extent to which the participants overlapped in various dealings. United States v. Kelly, 892 F.2d 255,
259 (3d Cir. 1989). Clearly, the common goal of this conspiracy was to make money selling cocaine. After ap- plying the Kelly factors, it seems obvious that virtually all activities the coconspirators engaged in to make money selling cocaine could be encompassed within this sin- gle conspiracy. A conspiracy charge often casts a wide net, and drug distribution activities conducted in different locations can certainly be encompassed within a single conspiracy. Nor are we concerned that only Russell, not his co-conspirators, sold drugs
134 F.3d 171, *183; 1998 U.S. App. LEXIS 767, **30
Page 13
*183 out of the "pink house." Co-conspirators do not have to know all of the details, goals or even the identity of other co-conspirators, to support the finding of a sin- gle conspiracy. Id. at 260. We therefore affirm the jury's verdict on the conspiracy count. **31
B. Admission of Evidence Relating to Maple Shade
Arrest and Handgun Purchases
Russell challenges the admission of evidence relat- ing to his arrest in 1991 in Maple Shade, New Jersey. He also challenges the evidence introduced pertaining to several handgun purchases made on his behalf by Melita Garcia, his girlfriend. Russell maintains that the events surrounding the arrest were not relevant to the issues to be decided by the jury because they occurred in April
1991, one year prior to the beginning of the conspiracy alleged in the indictment. He challenges the evidence of handgun purchases on the basis that: (1) there was no ev- idence presented that he actually possessed the guns; and
(2) three purchases occurred prior to the April 1992 date cited in the indictment as the beginning of the conspiracy. The events relating to the Maple Shade arrest were relevant at trial to show a common scheme or plan in relation to the conspiracy alleged in the indictment. The evidence at trial established that Russell and Smith were arrested in Maple Shade on their way from New York where they had purchased cocaine from one of Russell's sources. App. at 1272. This same source was later used
**32 by Russell to purchase drugs for his Williamsport operation. From these events, a jury could reasonably in- fer a common scheme or plan similar to that operated by Russell in Williamsport and in which Smith participated. The evidence was probative to establish an association between Smith and Russell, to establish how the drug op- eration functioned (i.e., drugs supplied from New York), and to establish a common purpose. See, e.g., United States v. Montoya-Ortiz, 7 F.3d 1171, 1177-78 (5th Cir.
1993) (jury could consider prior conduct to determine that conduct charged was not "coincidence, accident, or mistake, but was instead a part of a scheme in further- ance of " a particular goal or purpose); United States v.
Fitzherbert, 13 F.3d 340, 343 (10th Cir. 1993) (evidence of prior marijuana operation admissible to establish "knowl- edge, intent, and the presence of a common scheme or plan.").
Russell's challenge to the admission of evidence relat- ing to his gun purchases is equally unpersuasive. Russell contends that the evidence was not relevant because there was no evidence presented relating to his use or possession of the guns. In our view, the jurors could have reasonably
**33 concluded that he possessed the guns which were, after all, purchased for him. Furthermore, it has long been recognized that firearms are relevant evidence in the pros- ecution of drug-related offenses, because guns are tools of the drug trade. United States v. Muniz, 60 F.3d 65, 71
(2d Cir. 1995); see also United States v. Adams, 759 F.2d
1099, 1109 (3d Cir. 1985) (gun possession probative as to scale of conspiracy and type of protection conspirators believed was necessary to protect their operation). Finally, Russell contends that because three of the gun purchases occurred prior to the date cited in the indictment as the beginning of the conspiracy, these purchases cannot be relevant. We disagree. The jury reasonably could have concluded that gun purchases completed prior to the be- ginning of the drug conspiracy were made with the an- ticipation that he would need "protection" to establish his drug operation.
For the foregoing reasons, we conclude that the dis- trict court's admission of evidence regarding the defen- dant's Maple Shade arrest and gun purchases was not an abuse of discretion.
C. Two-Level Increase in Offense Level for Weapons
Possession
The district court **34 imposed a two-level in- crease in Russell's offense level for possessing a danger- ous weapon pursuant to § 2D1.1(b)(1) of the Sentencing Guidelines. The facts which formed the basis for this increase were Russell's possession of the knife used to assault George Felder in October 1994, and Russell's pos- session of two guns, purchased by Melita Garcia. Russell
134 F.3d 171, *184; 1998 U.S. App. LEXIS 767, **34
Page 14
*184 maintains that he used the knife in self-defense and argues that this is not the type of possession contem- plated by the Sentencing Guidelines to warrant a two- level increase. We find this argument unpersuasive.
The Sentencing Guidelines provide that the two-level adjustment should be applied "if the weapon was present, unless it is clearly improbable that the weapon was con- nected with the offense." U.S.S.G. § 2D1.1, comment.
(n.3). The testimony relating to the knife assault unequiv- ocally established that the confrontation between Russell and Felder involved a dispute about proceeds generated from drug activity. Under such circumstances, we can- not conclude that it was "improbable" that the knife was connected with the offense. Moreover, inasmuch as we believe that the district court's imposition of the two- level increase on this **35 basis was proper, we need not determine whether an adjustment would have been appropriate under a gun possession theory.
D. Use of Stipulations To Establish Drug Quantity
To sentence a defendant on a drug-related charge, the district court must determine the quantity of drugs for which the defendant was responsible. After reviewing the record from Russell's trial, however, the district court con- cluded that the quantity of drugs for which Russell was re- sponsible could not be discerned from the trial testimony. In order to ascertain a quantity that could be attributed to Russell's drug conspiracy and continuing criminal enter- prise, the court relied on stipulations agreed to between the government and Russell's co-conspirators, stating that they "formed a highly reliable basis for an estimate of the drugs attributable to Russell." App. at 134.
The district court sentenced Russell based on the same quantity of drugs his co-conspirators stipulated to, 20 kilograms of powder cocaine and 250 grams of cocaine base. Russell objects to the district court's method, urging that it is an unreliable measure of the amount of drugs for which he was accountable.
We are unpersuaded by Russell's **36 argument. First, Russell was the organizer of the conspiracy. We believe that the quantity of drugs for which his co- conspirators have taken responsibility provides a reliable
basis for estimating the quantity of drugs attributable to him. Second, even if the estimate was unreliable, it was overgenerous to Russell. The evidence at trial showed that because of his operation at the "pink house," Russell actu- ally participated in a greater number of drug transactions than did his coconspirators. For the foregoing reasons, we affirm the sentence imposed by the district court for Russell's conspiracy conviction. We will reverse Russell's conviction and vacate his sentence on the CCE count, and remand for further proceedings consistent with this opinion.
CONCURBY: ALITO
DISSENTBY: ALITO
DISSENT: ALITO, Circuit Judge, concurring and dis- senting:
I concur in the affirmance of the defendant's conspir- acy conviction, but I respectfully dissent from the reversal of his conviction for conducting a continuing criminal en- terprise (CCE), in violation of 21 U.S.C. § 848. The ma- jority reverses that conviction because of an error in the CCE jury instruction, viz., the omission of an instruction specifically **37 advising, as our court held in United States v. Edmonds, 80 F.3d 810 (3d Cir. 1996) (in banc), that the jurors were required to agree unanimously on the three CCE predicates that the defendant committed. Unlike the majority, I do not think that the defendant's trial counsel objected to this omission, as Rule 30 of the Federal Rules of Criminal Procedure demands. I there- fore believe that the question before us in this appeal is whether the challenged omission constituted "plain er- ror" (Fed. R. Crim. P. 52(b)), and I do not think that the demanding test for "plain error" is met here.
1. Before discussing defense counsel's failure to ob- ject to the instruction in question, I think that it may be helpful to provide some background regarding the una- nimity requirement that is involved in this appeal. In or- der to be convicted under 21 U.S.C. § 848 for conducting a continuing criminal enterprise, a defendant must have committed a felony violation of the federal drug laws, and this violation must be "a part of a continuing
134 F.3d 171, *185; 1998 U.S. App. LEXIS 767, **37
Page 15
*185 series" of such violations. In United States v. Echeverri, 854 F.2d 638, 642 (3d Cir. 1988), a panel of our court held that a "series" in this context means at
**38 least three violations. Id. The panel further held that the jury must agree unanimously on the three viola- tions that are used to support a CCE conviction and that a trial judge must, on request, give a jury instruction specif- ically setting out this unanimity instruction. Id. at 642-
43.
In Edmonds, a later CCE prosecution, the district court refused to give such an instruction, and a panel of our court held that this refusal required reversal. In a concurring opinion, Judge Hutchinson observed that, if the panel had not been bound by Echeverri, he would have been "inclined to follow the reasoning of the Seventh Circuit in United States v. Canino, 949 F.2d 928, 947-948
(7th Cir. 1991), cert. denied, 503 U.S. 996 and cert. de- nied, 504 U.S. 910 (1992) ," which held that the jurors in a CCE case need not agree unanimously on the particular CCE predicates. Slip op. at 26 (Hutchinson, J., concur- ring). Similarly, Judge Garth, in concurrence, stated that he "shared Judge Hutchinson's concerns regarding the Echeverri doctrine." Slip op. at 28 (Garth, J., concurring in part and dissenting in part). He added that he perceived
"conceptual tension" between Echeverri **39 and our court's decision in United States v. Jackson, 879 F.2d 85
(3d Cir. 1989), in which we held that jurors need not agree unanimously on the identities of the five or more persons that a CCE defendant organized, supervised, or managed. Slip op. at 28 (Garth, J., concurring in part and dissenting in part). Judge Garth suggested that this tension "called for further resolution." Id.
The panel opinion in Edmonds was filed on April 18,
1995, and Russell's trial commenced a few weeks later, on June 5, 1995. On June 29, 1995, during the course of that trial, the government's petition for rehearing in banc in Edmonds was granted and the panel opinion was va- cated. Russell's jury was instructed on July 12, 1995 -- after Edmonds was listed for rehearing in banc and well before that case was reargued (October 25, 1995) and the in banc decision was handed down (April 4, 1996).
In Edmonds, the full court held, by a narrow vote, that the CCE statute requires that jurors agree unanimously on the particular CCE predicates. The court further held that the district court's refusal to give a specific unanimity in- struction was erroneous but that the error was harmless.
**40 For the reasons set out in my concurring opinion and Judge Garth's concurring opinion in Edmonds, I con- tinue to believe that the CCE statute does not contain any such special unanimity instruction, but I recognize that we are bound to follow that holding here.
2. With this background in mind, I turn to the question whether defense counsel in this case adequately objected to the instruction on which the majority relies. Rule 30 of the Federal Rules of Criminal Procedure provides in pertinent part as follows:
No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.
This is a vitally important rule. It promotes judicial econ- omy by eliminating unnecessary appeals and retrials. More important, because appellate reversals and retrials produce delay, and because delay often results in the loss or impairment of evidence, Rule 30 serves to promote accuracy in jury verdicts. As the majority points out, a lawyer is not required to use any special language to sat- isfy Rule 30; the **41 lawyer must simply use words that are reasonably calculated to get the message across. In this case, however, defense counsel did not do so.
After the district court judge completed his charge, he asked whether counsel had any objections. Supp. App. at
6. n9 Defense counsel then objected to the trial judge's failure to cover two instructions requested by the defense, i.e., number 51 and number 43. Id. at 7-8. Neither of these requested instructions had anything to do with the issue of jury unanimity regarding particular CCE
134 F.3d 171, *186; 1998 U.S. App. LEXIS 767, **41
Page 16
*186 predicates. After the district court ruled on these two matters, the following exchange occurred:
THE COURT: Do you have anything else?
MR. TRAVIS defense counsel : No, Your Honor.
Id. at 9.
The jury then retired to deliberate and subsequently sent out a note requesting "a limited reading of the Judge's charge as to count one the CCE count ." App. at 2155. n10 In response, the court proposed to read virtually the entire charge concerning the CCE count, and both coun- sel agreed. Id. at 2156. As a result, the district court once again read to the jury the portion of the charge that the de- fendant now challenges on appeal. The following **42 then occurred:
THE COURT: ...Do you have any objec- tion to those instructions, counsel?
MR. ROCKTASHEL the prosecutor : No, Your Honor.
THE COURT: Do you, sir?
MR. TRAVIS defense counsel : No, Your Honor.
Id. at 2163-64.
n9 "Supp. App." refers to the Supplemental
Appendix filed by the government.
n10 "App." refers to the appendix filed by the appellant.
Thus, defense counsel twice told the trial judge that he had no objection to the jury instruction that is chal- lenged in this appeal. Moreover, defense counsel never mentioned or referred even obliquely to Edmonds dur- ing the colloquy devoted to objections to the instructions. Accordingly, defense counsel did not, in my view, ad- equately convey to the trial judge the simple message that was necessary in order to comply with Rule 30, i.e.,
"Judge there's a mistake in the jury charge. It doesn't tell the jurors that they must agree unanimously regarding the three CCE predicates."
It is true that defense counsel did subsequently **43 mention Edmonds, but he did so in connection with an entirely different question, i.e., whether the district court should give the jury a special verdict sheet concerning the CCE predicates. Some time after the colloquy concerning the jury instructions, the court stated:
Now, there is one other thing, and that is ... I understood you to say, Mr. Travis, that there were certain specific findings that were required under Count One. July 12, 1995 Tr. at 70. Defense counsel then referred to the panel decision in Edmonds (which, as previ- ously noted, had been filed on April 18, 1995, but vacated on June 29, 1995, when rehear- ing in banc was granted). Defense counsel stated: "The impression I had was that you had to give the jurors a special verdict page where they said, these are the three violations
..." App. at 2143. The court asked: THE COURT: Well what are you asking that we do?
Id. Defense counsel responded as follows: Well I -- you asked about the form, the form of the verdict
and whether I thought that there was any change that needed to be made. I was attempt- ing to point out that my inter- pretation of Edmonds seems to suggest **44 that there is a need for a special ver- dict page that requires the jury to fill in three blank lines of which three federal felony of- fenses they have unanimously agreed upon having been com- mitted by the Defendant, if they agree on that element.
Id. (emphasis added). The district court judge said that he would read the Edmonds panel opinion, but he observed that he thought that
"there's a general reluctance on the Court of Appeals to require any special verdict forms in criminal cases." App. at 2144. Later, the court decided not to give the jury a special verdict sheet, and the defendant does not challenge that decision on appeal.
I disagree with the majority's conclusion that defense counsel, by requesting a special verdict sheet, adequately conveyed to the dis- trict court the message that the court's jury in- struction was inconsistent with the Edmonds panel decision. As noted, defense counsel,
134 F.3d 171, *186; 1998 U.S. App. LEXIS 767, **44
Page 17
by this point, had twice failed to object to the challenged jury instructions, and when defense counsel finally mentioned Edmonds
and the trial judge pointedly asked, "Well, what are you asking that we
134 F.3d 171, *187; 1998 U.S. App. LEXIS 767, **44
Page 18
*187 do" (App. at 2143), defense counsel's only request was that **45 the court give the jury a special verdict sheet. Id.
In my view, the question whether a trial judge is required to give a special instruction on jury unanimity in a CCE case is sepa- rate from the question whether a trial judge is required to use a special verdict sheet. Although the Edmonds panel and in banc de- cisions held that it is error to decline to give a special jury unanimity instruction when one is requested, neither the Edmonds panel opinion nor the Edmonds in banc opinion requires a special verdict sheet. On the con- trary, we have held that, as a general matter, a district court "has discretion in determin- ing whether to submit special interrogatories to the jury regarding the elements of an of- fense." United States v. Console, 13 F.3d 641,
663 & n.23 (3d Cir. 1993). By obscuring the important distinction between an objection to a jury instruction and a request for a spe- cial verdict sheet, the majority, I believe, has committed a serious error.
In addition to relying on defense coun- sel's request for a special verdict sheet, the majority also relies on the defendant's pro- posed jury instruction number 41, which stated in pertinent part that the jury **46 was required to "agree unanimously on the three acts which constitute the continuing se- ries of Federal Drug Law violations." See Maj. Op. at 12 n.7 (quoting Supp. App. 25). If defense counsel had objected to the court's charge on the ground that it failed to cover this point, and if the district court had nev- ertheless declined to cover that point, then this case would be indistinguishable from Edmonds, and I would join the majority in voting to reverse. However, that is not what occurred. After the district court completed its jury instructions and asked defense coun- sel whether he had any objections, defense counsel referred to the 93 pages of proposed instructions that he had submitted and asked whether he could assume that any instruction that had not been given should be "deemed denied." Supp. App. at 6. The court rejected this suggestion and instructed defense coun- sel to assert any objections he had to the in- structions that the court had given. Id. Then, as previously noted, defense counsel argued that the court had erred in failing to cover two
of the requested defense instructions, i.e., numbers 51 and 43. Id. at 7-8. Defense coun- sel made no reference to instruction **47 number 41, and therefore it seems to me that, simply by including that instruction in the large packet of requested defense instruc- tions, the defense did not fulfil its obliga- tion under Rule 30 to assert an objection to the court's instructions and state "distinctly the matter to which the party objects and the grounds of the objection."
For these reasons, I would hold that de- fense counsel did not adequately object at trial to the jury instruction that is now chal- lenged on appeal. Consequently, I believe that our review is limited to determining whether the district court's instruction con- stituted "plain error." Fed. R. Crim. P. 52(b).
3. As noted, the in banc court held in Edmonds that, in order to find a defendant guilty under the CCE statute, 21 U.S.C. §
848, a jury must unanimously agree that the same three related predicate offenses oc- curred. The court further held that the district court in that case erred in rejecting a defense request for an instruction specifically advis- ing the jurors that they were required to agree unanimously on which three related viola- tions occurred.
The instruction challenged in this case did not affirmatively mistake the law, as in- terpreted **48 in Edmonds. The instruc- tion did not advise, contrary to Edmonds, that it was unnecessary for the jurors to agree unanimously regarding the three CCE predi- cate offenses that occurred. In the challenged instruction, the district court stated:
The phrase, a continuing se- ries of violations means three or more violations of the fed- eral narcotics laws which are in some way -- laws which are in some way related to each other. In order to find that this ele- ment has been established, you must unanimously agree that the Defendant, Mr. Russell, partic- ipated in some way in at least three or more violations of the federal narcotics laws which are in some way related to each
134 F.3d 171, *187; 1998 U.S. App. LEXIS 767, **48
Page 19
other.
App. at 2094. See also App. at
2158-59. As far as it went, this
instruction was entirely accu- rate: in order for the jury to find that Russell violated 21 U.S.C.
§ 848, it was necessary
134 F.3d 171, *188; 1998 U.S. App. LEXIS 767, **48
Page 20
*188 that they "unanimously agree that . . . Mr. Russell par- ticipated in some way in at least three or more violations of the federal narcotics laws which are in some way related to each other." App. at 2094. The prob- lem with this instruction is not that it was inaccurate but that it was incomplete: it did not
**49 go on and explain to the jurors that they were re- quired, not only to agree unan- imously that Russell commit- ted three CCE predicates, but to agree unanimously with respect to the three particular predicates that he committed.
In my view, this failure to provide the jury with a more complete and specific expla- nation of the unanimity re- quirement in a CCE case does not amount to "plain error." In United States v. Olano, 507 U.S.
725, 123 L. Ed. 2d 508, 113 S. Ct. 1770 (1993), the Supreme Court held that, in order for an appellate court to find plain er- ror, it must first find 1) an error
2) that is plain and 3) that af- fects substantial rights. Even if all three of these prerequisites are met, an appellate court may correct an error to which no ob- jection was made "only if (4) the error 'seriously affects the fair- ness, integrity, or public repu- tation of judicial proceedings.'
" Johnson v. United States, 520
U.S. 461, 137 L. Ed. 2d 718, 117
S. Ct. 1544, 1549 (1997) (quot- ing Olano, 507 U.S. at 732) (in- ternal quotation marks omitted). Here, I agree that the first of these four requirements (there was an error) was met. But I do not believe that the sec- ond requirement (the error was
"plain") **50 was satisfied, and therefore I need not consider the third or fourth requirement.
"'Plain' is synonymous with
'clear' or, equivalently, 'obvi- ous.'" United States v. Olano,
507 U.S. at 734. As we have ex- plained:
To find plain error, the mistake must be sufficiently obvious that
"the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it."
Government of Virgin Islands v. Knight, 28
V.I. 249, 989 F.2d 619, 632 (1993) (quoting
United States v. Frady, 456 U.S. 152, 163, 71
L. Ed. 2d 816, 102 S. Ct. 1584 (1982)). In my view, the omission in this case was not
"sufficiently obvious that 'the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it.' " Knight, 989 F.2d at 632
(quoting Frady, 456 U.S. at 163). The omis- sion was simply a mistake, the sort of mis- take that would have constituted reversible error had defense counsel called it to the trial judge's attention as required by Rule 30, but a mistake that falls short of constituting "plain error." "The Supreme Court has admonished courts of appeals to characterize **51 a mistake as plain error 'sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.' " Knight,
989 F.2d at 631 (quoting United States v. Young, 470 U.S. 1, 15, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985). "Reviewing courts are not to use the plain-error doctrine to consider trial court errors not meriting appellate re- view absent timely objection." United States v. Young, 470 U.S. at 16. That, in my judg- ment, is what the majority has done here. For that reason, I dissent from the reversal of the defendant's CCE conviction.
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