On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. Crim. Action Nos. 92-cr-00504-1, 92-cr-00504-6, 92-cr-00504-5, 92-cr-00504-16).
Before: Stapleton, Hutchinson and Garth, Circuit Judges.
STAPLETON, Circuit Judge :
Theodore Edmonds, Lorenzo Duncan, Carlton Love, and Cora Love appeal from their convictions and sentencings after a jury trial on various drug-related charges. The jury found all four appellants guilty of distributing cocaine and heroin, in violation of 21 U.S.C. § 841(a)(1), and of conspiracy to distribute cocaine and heroin, in violation 21 U.S.C. § 846. Three defendants, Edmonds, Duncan, and Carlton Love, were found guilty of knowingly and intentionally using a communication facility in committing, causing, and facilitating the conspiracy to distribute cocaine and heroin, in violation of 21 U.S.C. § 843(b). Edmonds also was convicted of money laundering under 18 U.S.C. § 1956, and of managing, supervising, and organizing a continuing criminal enterprise ("CCE"), under 21 U.S.C. § 848. On top of those convictions, the jury returned a verdict of $27,000,000 for the government against Edmonds, $4,500,000 against Carlton Love, and $4,000,000 against Duncan under the criminal forfeiture statute, 21 U.S.C. § 853. These appeals have been consolidated.
The appellants raise numerous issues, three of which present close and important questions warranting this opinion. The first concerns Edmonds' conviction on the charge of managing, supervising, and organizing a continuing criminal enterprise in violation of 21 U.S.C. § 848. Following our decision in United States v. Echeverri, 854 F.2d 638 (3d Cir. 1988), we hold that the trial court committed reversible error when it refused to instruct the jury that it had to unanimously agree which of Edmonds' alleged drug violations constituted "the continuing series of violations" required for conviction on that count.
The second issue concerns the sentences imposed on Carlton Love and Cora Love. Those two appellants argue that the drug quantities attributed to them for sentencing purposes were not justified by the evidence presented at trial. We agree. An appropriate drug-weight estimate will lower Carlton Love's U.S. Sentencing Guideline offense level; accordingly, we will remand his case for resentencing. It is unclear whether an appropriate drug-weight estimate would change Cora Love's offense level, so we will remand her case for further findings and, if necessary, a reconsideration of her sentence.
The final issue involves the district court's admission into evidence of certain drug paraphernalia seized during the execution of a search warrant. Carlton Love claims that the search warrant was issued on the basis of an affidavit containing information allegedly obtained in violation of his Fourth Amendment rights. We find no Fourth Amendment violation and accordingly cannot fault the challenged evidentiary ruling.
This case involves a large conspiracy to distribute cocaine and heroin through the Federal Express system. The conspirators, for over a year, would ship drugs from the Los Angeles area via Federal Express to points in the East Coast and Midwest. Various members of the conspiracy then would distribute the drugs, collect money in return, and ship the money received back to California, again using Federal Express. Headed by Edmonds, the conspiracy sold more than 1500 kilograms of cocaine and more than 2 kilograms of heroin to distributors in Chester, Pennsylvania; Philadelphia, Pennsylvania; Wilmington, Delaware; Wilmington, North Carolina; Detroit, Michigan; New Orleans, Louisiana; Toledo, Ohio; and elsewhere.
Edmonds arranged the drug shipments from the Los Angeles area with the help of codefendant Reinard Mozell and one or two others. Tyria H. Ekwensi managed the distribution operation for the East Coast and the Detroit area. During the early part of the conspiracy, Edmonds would send shipments to Ekwensi's address in Mount Laurel, New Jersey. Ekwensi passed the drugs on to Duncan, her sole distributor at that time, who then sold the drugs on consignment. As the conspiracy progressed, Ekwensi also began to distribute the drugs to Russell Freeman, Jr. and to Carlton Love. At one point, Edmonds started to send the shipments directly to addresses provided by both Duncan and Freeman, Jr., as well as Ekwensi.
During the early part of these operations, Ekwensi would secret monies received from selling the drugs on her person and personally deliver the money to Edmonds in California. Edmonds eventually changed that procedure and Ekwensi proceeded to send packages of money by Federal Express to various Edmonds-controlled Los Angeles-area addresses. Carlton Love, Duncan, and Freeman, Jr. assisted Ekwensi with preparing the money for shipment and delivering the boxes to Federal Express.
The scheme began to unravel when a Federal Express employee at the Philadelphia airport became suspicious of a package that had been presented for shipment to the Los Angeles area. He opened the package and discovered that it contained a large amount of currency. Shortly thereafter, the same Federal Express employee noticed a similar package. He alerted the Federal Express security department, which in turn alerted law enforcement authorities. The package was searched and found to contain approximately $200,000 in cash.
In the course of the next several months, the FBI checked Federal Express records and seized a number of Federal Express packages containing cash sent from the Philadelphia area to the Los Angeles area as well as a number packages containing drugs sent from the Los Angeles area to the Philadelphia area. On May 29, 1992, the government secured the first of a series of wire and electronic communications warrants on telephones subscribed to or used by subjects of the investigation. The wiretaps led to seizures and physical surveillance. This evidence, coupled with the ultimate cooperation of a number of the suspects of the investigation, led to the indictment of sixteen individuals, some from the Los Angeles area and others from the Philadelphia area. Ekwensi and Mozell testified for the government at trial.
The appellants were tried, convicted and sentenced in the U.S. District Court for the Eastern District of Pennsylvania. We have jurisdiction to hear these appeals under 28 U.S.C. § 1291.
The jury found Edmonds guilty of managing, supervising, or organizing five or more persons in a continuing criminal enterprise, in violation of 21 U.S.C. § 848.*fn1 Edmonds gives two reasons why that conviction should be reversed. His first is that the government failed to meet the statute's "numerosity" requirement; that is, he contends that the government failed to prove that he managed, supervised, or organized five or more people in connection with the underlying drug felonies. Our examination of the record reveals that there in fact was sufficient evidence to support a finding that Edmonds managed, supervised, or organized five or more people in connection with the underlying drug felonies.
Edmonds' second reason for challenging his CCE conviction is more substantial. He contends that the trial court erroneously refused to instruct the jury that it had to unanimously agree which of the alleged violations constituted the "continuing series of violations" required for a conviction on the CCE charge. We agree that the trial court's refusal to give such an instruction requires a reversal of Edmonds' conviction on the CCE charge.
To obtain a conviction under the continuing criminal enterprise statute, 21 U.S.C. § 848, the government must prove that the defendant, through his or her supervisory role over a criminal enterprise of five or more others, is criminally responsible for a "continuing series" of felony violations of the federal narcotics laws. A "series" in this context is established by proof of three or more violations. See United States v. Echeverri, 854 F.2d 638, 642-43 (3d Cir. 1988). "Continuing," on the other hand, means that the three violations must somehow be related; it is well-established, for example, that clearly "isolated," and accordingly unrelated, violations of the federal drug laws will not support a CCE conviction. United States v. Jones, 801 F.2d 304, 307 (8th Cir. 1986) (noting that three separate, unrelated, drug sales would not establish a continuing series); see also United States v. Baker, 905 F.2d 1100, 1104 (7th Cir.) (stating that "an unrelated conspiracy does not count [for CCE purposes] because it cannot be part of the 'continuing' series"), cert. denied, 498 U.S. 876, 112 L. Ed. 2d 167, 111 S. Ct. 206, and cert. denied, 498 U.S. 904 (1990), and cert. denied, 498 U.S. 1030 (1991). Furthermore, the law is clear that the "continuing series" requirement is an element of the crime. See, e.g., United States v. Grayson, 795 F.2d 278, 283-84 (3d Cir. 1986) (stating that the government must prove that a felony violation of the narcotics law is "part of a continuing series of violations"), cert. denied, 479 U.S. 1054, and cert. denied, 481 U.S. 1018, 95 L. Ed. 2d 505, 107 S. Ct. 1899 (1987). As a result, to convict, a jury must agree unanimously that the defendant committed a continuing series of three drug-related criminal offenses. See, e.g., In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970).
The district court in this case instructed the jury that "[a] continuing series of violations requires proof beyond a reasonable doubt that three or more violations occurred and that they, those three or more, were related to each other." Edmonds asked the district court to explain to the jury that it must unanimously agree which three of any narcotics violations they found to have occurred were related to each other for the purposes of the "continuing series" requirement. The district court declined to so instruct the jury, and Edmonds insists that this was reversible error.
The defendant in Echeverri also was charged with a CCE offense. He requested the following jury instruction:
The second element the government must prove beyond a reasonable doubt is that this offense was part of a continuing series of violations of the federal narcotics laws. A continuing series of violations is three or more violations of the federal narcotics laws committed over a definite period of time.
You must unanimously agree on which three acts constitute the continuing series of violations.
Echeverri, 854 F.2d at 642. We held that it was reversible error for the district court to decline to give this or a similar instruction. We explained:
In the absence of a specific unanimity instruction directed to the government's several claims, it was apparent that the jury need not have unanimously agreed that any particular criminal act had been committed by the defendant.
Here, the jury was instructed that the continuing series element required them to find three violations of the drug laws . . ., yet as a result of the district court's refusal to give the requested instruction, there is no assurance that the jury unanimously agreed that the same narcotics violations occurred.
There is a difference between the facts of this case and those presented in Echeverri. The jury convicted Edmonds of each of the eight substantive counts involving the drug felonies alleged to constitute the continuing series. As a matter of logic, therefore, the jurors must have unanimously agreed that Edmonds committed every felony in the alleged "series." Thus, the government maintains, the principles requiring a reversal in Echeverri do not require a reversal in this case.
This misunderstands Edmonds' argument. Edmonds does not dispute that the jury unanimously found he committed every one of the eight underlying narcotics violations. His argument instead is that the instruction given by the trial court did not require the jury to unanimously agree that the same three or more violations were "related" to each other for the purposes of the CCE statute. He thus contends that the mere fact that the jury returned a guilty verdict on the substantive counts involving the eight underlying offenses does not, by itself, establish that the jury found that the eight offenses, or any particular subset of three or more of the eight offenses, were related to each other.
It is possible, as Edmonds insists, that the jury, while finding that all eight violations occurred, did not actually agree on which violations were related to each other. For example, six jurors could have felt that violations A, B, and C (but no others) were related and the other six jurors could have concluded that D, E, and F (but no others) were related. Thus, as in Echeverri, it is possible that the jurors failed to unanimously agree that Edmonds was responsible for three related criminal acts and that the government therefore failed to meet its burden of proving a "continuing series" of violations.
The government maintains that United States v. Jackson, 879 F.2d 85 (3d Cir. 1989), requires that we affirm Edmonds' CCE conviction. The defendant in Jackson, who was also charged with a CCE offense, claimed that the jurors had to decide unanimously on the identities of his five underlings before they could conclude that the government had met its burden of showing that he acted in a "supervisory role." We agreed with the defendant that whether there were five or more underlings was in fact an essential element of the offense and that the jury accordingly had to reach a consensus on that fact. Id. at 88. We nevertheless rejected the notion that the jury must unanimously agree on the identities of the five underlings. Id.
The result in Jackson follows from the general rule that jurors need not be in "complete agreement as to the collateral or underlying facts which relate to the manner in which the culpable conduct was undertaken." Id. (emphasis added); see generally Schad v. Arizona, 501 U.S. 624, 631-37, 115 L. Ed. 2d 555, 111 S. Ct. 2491 (1991) (noting that the Constitution does not require jurors to "agree upon a single means of commission"); Griffin v. United States, 502 U.S. 46, 49-57, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991). The elements of the crime proscribed by § 848, as viewed by the court in Jackson, are that (1) the defendant committed three drug felonies, and (2) each of those felonies were (a) related to each other, (b) undertaken in concert with five or more people whom the defendant organized or managed, and (c) produced substantial income or resources for the defendant. Satisfaction of element (2)(b) requires proof that a group of a certain size be involved in the commission of the felony. The identities of the people making up the group of underlings for the purposes of the CCE statute merely relate to the manner in which the culpable conduct is undertaken, however. Put simply, the CCE statute does not care who the five people are, it only cares that the jurors ...