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U.S. v. Edmonds

April 4, 1996




On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Criminal No. 92-cr-00504-1)


BECKER, Circuit Judge.

Argued: October 24, 1994

Opinion Filed: April 18, 1995; vacated June 29, 1995)

Reargued In Banc: October 25, 1995

Filed April 4, 1996)


A federal jury convicted appellant Theodore Edmonds of violating the Continuing Criminal Enterprise statute ("CCE"), 21 U.S.C. Section(s) 848, which makes it a crime to organize, supervise, or manage five or more persons in a "continuing series of violations" of the federal narcotics laws. Edmonds argues that the district court erred in failing to instruct the jurors that, in order to convict, they must agree unanimously on which violations -- of the eight alleged -- constituted the three related violations necessary to establish a "continuing series." In United States v. Echeverri, 854 F.2d 638 (3d Cir. 1988), we held that the CCE statute requires jury unanimity as to the identity of each of the three related violations comprising the continuing series. This in banc *fn1 rehearing gives us the opportunity to reconsider Echeverri. The question of the degree of jury unanimity required by the CCE statute is a difficult one, and other courts of appeals have disagreed with Echeverri's resolution, see, e.g., United States v. Canino, 949 F.2d 928 (7th Cir. 1991), cert. denied, 504 U.S. 910, and cert. denied sub nom. Flynn v. United States, 503 U.S. 996 (1992). Nevertheless, guided by historical tradition in criminal jurisprudence, constitutional considerations, and the rule of lenity, we reaffirm Echeverri and hold that the CCE statute requires juror unanimity as to the identity of the related violations comprising the continuing series.

In view of this holding, we must also decide whether the district court's failure to give the proper unanimity instruction was harmless error. This task requires us to examine the scope of Sullivan v. Louisiana, 113 S. Ct. 2078 (1993), which held that an erroneous reasonable doubt instruction cannot be harmless because such error undermines an essential premise of harmless error analysis -- the existence of an actual verdict of guilty beyond a reasonable doubt. Id. at 2082.

We conclude that Sullivan does not preclude harmless error analysis in this case. Unlike the verdict in Sullivan, in which an erroneous reasonable doubt instruction undermined all of the jury's findings, the jury in this case delivered valid findings on essentially all of the elements of the offense by convicting Edmonds of every violation alleged to constitute the continuing series. These convictions do not themselves show unanimous agreement that the same three violations were sufficiently related to each other to constitute a continuing series. However, the evidence that the jury must have credited to find Edmonds guilty of the predicate violations unequivocally established that all charged violations were related. In such circumstances, no rational jury could unanimously find Edmonds guilty of the predicate offenses without unanimously finding that the offenses were related to each other. We thus affirm Edmonds's conviction.

I. Facts and Procedural History

The facts of this case are fully set out in the earlier panel opinion, see United States v. Edmonds, 52 F.3d 1236, 1241 (3d Cir.), vacated in part, 52 F.3d 1251 (3d Cir. 1995); thus, we provide only a brief summary. The evidence at trial showed that Edmonds led a nationwide cocaine and heroin distribution network. The organization was based in Los Angeles, California and sold drugs to distributors for resale in various locales, including Chester, and Philadelphia, Pennsylvania; Wilmington, Delaware; Wilmington, North Carolina; Detroit, Michigan; New Orleans, Louisiana; and Toledo, Ohio.

A federal grand jury returned a twenty-seven count indictment against Edmonds and eleven other people. The indictment charged Edmonds with conspiracy to distribute cocaine and heroin in violation of 21 U.S.C. Section(s) 846; distribution of heroin and aiding and abetting distribution in violation of 21 U.S.C. Section(s) 841(a)(1); two counts of distribution of cocaine and aiding and abetting distribution in violation of 21 U.S.C. Section(s) 841(a)(1); three counts of unlawful use of a communications facility in violation of 21 U.S.C. Section(s) 243(b); and four counts of money laundering in violation of 18 U.S.C. Section(s) 1956(a)(1)(A)(i) & (2). In addition, the indictment charged Edmonds with engaging in a CCE in violation of 21 U.S.C. Section(s) 848. The CCE count identified eight predicate offenses: the conspiracy count, the three distribution counts, the three communications facility counts, and one of the money laundering counts. *fn2

At trial, the district court gave the following instruction concerning the CCE charge:

So the Government has to prove that he [Edmonds] committed a felony in violation of narcotics laws; i.e.[,] that in some way he was causing or attempting to cause the distribution of cocaine and heroin as charged in Count 1 of the indictment or in other counts charged in the indictment.

The Government has to prove secondly that such violation was part of a continuing series of related 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. App. 577.

The court rejected Edmonds's request that it explain to the jurors that they must unanimously agree on which three related violations occurred. Instead, the court gave only general unanimity instructions. See, e.g., App. 581 ("You are asked to deliberate with a view towards reaching a unanimous decision with respect to each count and each defendant charged here in this indictment."). The jury convicted Edmonds of all counts.

A panel of this Court reversed Edmonds's CCE conviction. The panel's decision was based on United States v. Echeverri, which held that a district court's refusal to give a specific unanimity instruction in a CCE trial is reversible error. See Echeverri, 854 F.2d at 643. The panel found Echeverri controlling despite a significant difference between the two cases. In Echeverri, the government had introduced evidence of a plethora of drug-related activity to establish the continuing series, and, because the jury did not hand down verdicts on the separate predicate offenses, it was unclear whether the jury agreed that the same three predicate violations occurred. See id. at 642-43. In contrast, Edmonds's jury convicted him of each of the narcotics violations alleged to constitute the continuing series, and hence it must have unanimously agreed that Edmonds committed every violation in the alleged series. Nevertheless, the panel found Echeverri controlling because the jury may not have agreed on which three offenses were related to each other. For example, six jurors may have felt that violations A,B, & C (but no others) were related, and the other six jurors may have concluded that violations D, E, & F (but no others) were related. See Edmonds, 52 F.3d at 1241.

The panel then held that harmless error analysis was inapplicable. Although the evidence that the jury must have believed to find Edmonds guilty of the predicate offenses also established a single ongoing scheme, the panel reasoned that Sullivan v. Louisiana, 113 S. Ct. 2078 (1993), barred it from engaging in harmless error analysis. Sullivan held that a constitutionally deficient reasonable doubt instruction cannot be harmless because the error precludes the existence of a guilty verdict upon which harmless error scrutiny could operate. Id. at 2082. *fn3 Analogizing lack of jury unanimity to an unconstitutional definition of reasonable doubt, the panel held that "there has been no actual jury finding of guilty on the CCE charge," and thus that it could not rule that the error was harmless. Edmonds, 52 F.3d at 1244.

The government petitioned for rehearing, arguing that Schad v. Arizona, 501 U.S. 624 (1991), and United States v. Jackson, 879 F.2d 85 (3d Cir. 1989), have undermined Echeverri's specific unanimity holding; the government also attacked the panel's harmless error analysis. We granted the petition and reheard the case in banc.

II. The CCE Statute & Specific Juror Unanimity

To convict a defendant under the CCE statute, the government must prove: (1) that the defendant committed a felony violation of a provision of United States Code Title 21, Chapter 13, subchapter I or II (various drug offenses); (2) that this violation was part of a "continuing series" of violations of these subchapters; (3) that the defendant, in committing the continuing series of violations, acted as an organizer, supervisor, or manager of five or more other persons; and (4) that the defendant obtained "substantial income or resources" from such activities. *fn4

Only the second requirement -- that the defendant committed a felony as part of a continuing series of violations -- is at issue in this appeal. We have held, as have most courts of appeals, that a "series" consists of at least three predicate violations. See Echeverri, 854 F.2d at 643; see also, e.g., United States v. Hernandez-Escarsega, 886 F.2d 1560, 1570 (9th Cir. 1989), cert. denied, 497 U.S. 1003 (1990); United States v. Young, 745 F.2d 733, 747 (2d Cir. 1984), cert. denied sub nom. Myers v. United States, 470 U.S. 1084 (1985). But see United States v. Baker, 905 F.2d 1100, 1102-05 (7th Cir. 1990) (requiring only two predicate offenses), cert. denied, 498 U.S. 876, and cert. denied sub nom. Manns v. United States, 498 U.S. 904 (1990). Furthermore, because the series must be "continuing," the three predicate offenses must be related to each other in some way. See, e.g., United States v. Jones, 801 F.2d 304, 307 (8th Cir. 1986); Baker, 905 F.2d at 1104.

As we have explained, the critical question is whether the jury need unanimously agree only that the defendant committed three related violations or whether, instead, the jury must unanimously agree that the same three related violations occurred. Although it is well settled that a defendant in a federal criminal trial has a constitutional right to a unanimous verdict, see, e.g., Andres v. United States, 333 U.S. 740, 748-49 (1948); Patton v. United States, 281 U.S. 276, 288-90 (1930); see also Fed. R. Crim. P. 31(a), the level of factual specificity on which the jury must be unanimous is far from clear. In Schad v. Arizona, 501 U.S. 624 (1991), a plurality of the Supreme Court shed some light on this question. Schad indicates that the scope of jury unanimity is primarily a question of legislative intent, although due process limits the legislature's definitional power.

Following Schad, we view the CCE unanimity question principally in terms of congressional intent. We recognize that, on its face, the CCE statute gives little indication of Congress's intent with respect to jury unanimity. Nevertheless, guided by historical tradition, constitutional considerations, and the rule of lenity, we conclude that a statute combining formerly separate crimes -- crimes that may take place at different times and at different places -- should generally be read to require unanimity as to each predicate offense. Here, because there is no indication of intent to the contrary, we hold that in order to convict a defendant under the CCE statute, the jury must unanimously agree that the same three related predicate offenses occurred.

A. The Analytic Framework

In Schad v. Arizona, 501 U.S. 624 (1991), a four-Justice plurality concluded that when a statute enumerates alternative routes for its violation, whether jurors must be unanimous with respect to a particular route depends on two questions. First, did the legislature intend the different routes to establish separate "offenses," for which unanimity is required as to every fact constituting the offense, or different "means" of violating a single offense, for which unanimity is not required? Second, if the legislature intended the alternative routes to be mere means of violating a single statute, is the statute's definition of the crime unconstitutional under the Due Process Clause? Edward Harold Schad was convicted under an Arizona statute that defined first degree murder as "murder which is . . . wilful, deliberate or premeditated . . . or which is committed . . . in the perpetration of, or attempt to perpetrate, . . . robbery." Id. at 628 (quoting Ariz. Rev. Stat. Section(s) 13-452 (supp. 1973)). At trial, the prosecutor advanced theories of both premeditated murder and felony murder, and the trial court gave only a general unanimity instruction (i.e., that all jurors must agree on whether the defendant is guilty or not guilty). On appeal, Schad argued that the state trial court had erred in not requiring the jury to agree on a single theory of first degree murder. The Arizona Supreme Court affirmed Schad's conviction, stating, "In Arizona, first degree murder is only one crime regardless whether it occurs as a premeditated murder or a felony murder. . . . [T]he defendant is not entitled to a unanimous verdict on the manner in which the act was committed." Id. at 629 (plurality opinion) (quoting State v. Schad, 788 P.2d 1162, 1168 (Ariz. 1989)).

A divided United States Supreme Court affirmed the Arizona Supreme Court's judgment. In an opinion joined by Chief Justice Rehnquist and Justices O'Connor and Kennedy, Justice Souter analyzed the problem in terms of due process limits on the legislature's power to define criminal conduct, and not as a jury unanimity issue. Id. at 630-31 (plurality opinion). *fn5 Because the Arizona Supreme Court, the final interpreter of Arizona law, had held that felony murder and premeditation were merely different "means" of committing a single "offense," the intent of the Arizona legislature had been conclusively established, and Schad's jury was unanimous on all the facts necessary to establish the offense. See Schad, 501 U.S. at 630-31. Thus, it was unnecessary to decide whether a criminal defendant has a right to a unanimous verdict in a state capital case. *fn6

The remaining issue was whether Arizona's definition of the crime is constitutional under the Due Process Clause. The plurality concluded -- and Justice Scalia seemed to agree -- that due process limits the legislature's "capacity to define different courses of conduct . . . as merely alternative means of committing a single offense, thereby permitting a defendant's conviction without jury agreement as to which course . . . actually occurred." Id. at 632 (plurality opinion); see also id. at 650-52 (Scalia, J., concurring in the judgment) (recognizing due process limitation).

The plurality described this due process concern as analogous to vagueness:

The axiomatic requirement of due process that a statute may not forbid conduct in terms so vague that people of common intelligence would be relegated to different guesses about its meaning carries the practical consequence that a defendant charged under a valid statute will be in a position to understand with some specificity the legal basis of the charge against him. Thus it is an assumption of our system of criminal justice "'so rooted in the traditions and conscience of our people as to be ranked as fundamental,'" that no person may be punished criminally save upon proof of some specific illegal conduct. Just as the requisite specificity of the charge may not be compromised by the joining of separate offenses, nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of "Crime" so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, would suffice for conviction. Id. at 632-33 (plurality opinion) (citations and footnote omitted).

The plurality's due process test looked to "history and wide practice as guides to fundamental values, as well as to narrower analytic methods of testing the moral and practical equivalence" of alternative means of satisfying an element of an offense. Id. at 637. Finding ample historical evidence that murder has been defined as killing another with "malice aforethought" (of which the intent to kill and the intent to commit a felony were alternative aspects), that a significant number of other states defined murder in the same way that Arizona did, and that a moral equivalence between the two means could be found on the facts of the case, Justice Souter concluded that the Arizona statute was constitutional.

Concurring in the judgment, Justice Scalia agreed that the statute at issue was constitutional under the Due Process Clause, but disagreed as to the appropriate constitutional test. He argued that due process is defined solely in terms of historical practice, at least when the procedure at issue has historical roots. See id. at 650 (Scalia, J., concurring in the judgment). Because of the ample historical evidence cited by the plurality, Justice Scalia agreed with its judgment. Id. at 651.

Justice White dissented in an opinion joined by Justices Marshall, Blackmun, and Stevens. Grounding his analysis in In re Winship, 397 U.S. 358, 364 (1970), which requires "proof beyond a reasonable of every fact necessary to constitute the crime," Justice White opined that the verdict at issue provided "no clues whether the jury agrees that the three elements of premeditated murder or the two elements of felony murder have been proved beyond a reasonable doubt." Schad, 501 U.S. at 655 (White, J., dissenting).

B. The Analysis Applied to the CCE Statute

Unlike the Supreme Court in Schad, which was bound by the Arizona Supreme Court's interpretation of state law, we must interpret the CCE statute. In relevant part, 21 U.S.C. Section(s) 848 provides:

[A] person is engaged in a continuing criminal enterprise if --

(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and

(2) such violation is part of a continuing series of violations of this subchapter or subchapter II of this chapter -- 21 U.S.C. Section(s) 848(c).

In the language of Schad, the question is whether the menu of predicate violations specified by subchapters I and II are different "means" or different "offenses." *fn7 In other words, do the provisions represent various ways to commit the CCE crime, like shooting, drowning, etc. for a murder statute? Or do they represent different crimes themselves, such that the jury must agree which particular related violations were committed? *fn8

The statute lends itself to either interpretation. On the one hand, the statute is triggered by violation of "any provision" as part of a "continuing series of violations." By placing no emphasis on the particular, the statute could be read to say that different routes of violation are fungible alternatives, suggesting that the provisions are mere "means." On the other hand, the different ways of violating the CCE statute are themselves separate offenses defined in the United States Code. The predicate violations are things which, by definition, Congress views as separate offenses. Cf. Babb v. United States, 218 F.2d 538, 539-40 & n.3 (5th Cir. 1955) ("The statute under which this prosecution is lodged [18 U.S.C. Section(s) 545] defines two separate types of offenses [because] [t]he first paragraph . . . was derived from 19 U.S.C. Section(s) 1593(a), which in turn had as its source R.S. Section(s) 2865 . . . . [and] [t]he second paragraph . . . was derived from 19 U.S.C. Section(s) 1593(b), which in turn had as its source R.S. Section(s) 3082."). Thus, we find the language of the statute inconclusive. *fn9

Legislative history also provides little help here. Neither party cited any legislative history, and our own research failed to turn up any probative evidence. Indeed, the opaqueness of the "continuing series" requirement was a matter of concern to some members of Congress. See H.R. Rep. No. 1444, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4651 (stating "additional views" of some committee members that "it is not at all clear what constitutes a 'continuing series of violations'").

At least one circuit -- the Seventh -- has argued that the purpose of the CCE statute sheds light on Congress's intent.

The point of the CCE statute is to impose special punishment on those who organize and direct a significant number of larger scale drug transactions; the exact specification by unanimous jury consent of any particular three . . . offenses is irrelevant to any theory about why punishment should be enhanced for such uniquely antisocial activity. United States v. Canino, 949 F.2d 928, 948 (7th Cir. 1991).

We think this argument proves too much: the punitive purpose of a criminal statute will never be served by providing more procedural protections to the defendant. Furthermore, even a more nuanced inquiry into a statute's purpose is unlikely to provide insight. A statute's broad goal says little about whether different acts falling within the statute are means or offenses, or about the requisite degree of jury agreement.

Although we are skeptical that the first prong of the Schad analysis -- examining whether the legislature, in enumerating alternatives, intended to create a single or multiple offenses -- has much predictive force, we must perforce attempt to work with Schad. *fn10 In doing so, we acknowledge that the CCE statute offers little explicit guidance on Congress's intent. We therefore turn to several background interpretive principles, which, we conclude, establish that Congress did intend to require jury unanimity as to the CCE predicate offenses. *fn11

1. Background Interpretive Principles

a. Tradition in Criminal Jurisprudence

We look first to general historical tradition in criminal jurisprudence. Criminal trials have long ensured substantial jury agreement as to the facts establishing the offense. This is because criminal statutes and the common law have generally defined crimes in terms of conduct (and accompanying mental state) that takes place in a single place at some specific time. For example, murder statutes require that the defendant killed some other person, an act occurring in some specified time and place. Thus, when a jury delivers a general guilty verdict for such a crime, we are confident that the jury agreed on most of the actions engaged in by the defendant. When there is a real risk that a jury will convict without agreement on a discrete set of actions, courts have required specific unanimity instructions. See, e.g., United States v. Holley, 942 F.2d 916, 928-29 (5th Cir. 1991) (reversing a conviction for perjury because the district court's instructions allowed the jury to convict without agreement as to a particular false statement), cert. denied, 114 S. Ct. 77 (1993). In our view, substantial agreement on a discrete set of actions is essential to ensure that the defendant is guilty beyond a reasonable doubt of some specific illegal conduct. See Howe, supra n.10.

In the face of this tradition, we cannot read from Congress's silence that it intended CCE predicate offenses to constitute mere means of violating a single CCE offense. To do so would allow conviction on jury agreement merely that the defendant committed some three violations of United States Code Title 21, Chapter 13, subchapters I and II, even when it is alleged that the defendant committed many different acts occurring at different times and places. This is a wholly different situation from the one at issue in Schad. Indeed, as Justice Scalia pointed out in criticizing the plurality's moral equivalence test of constitutionality, "We would not permit, for example, an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday, despite the 'moral equivalence' of those two acts." Schad, 501 U.S. at 651 (Scalia, J., concurring in the judgment). *fn12

b. Constitutional Considerations

Constitutional considerations also guide our analysis. There is a real possibility that the CCE statute would violate the Due Process Clause absent a specific unanimity requirement. See Eric S. Miller, Note, Compound-Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts, 104 Yale L.J. 2277 (1995). "[W]here a statute is susceptible to two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [our] duty is to adopt the latter." United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366 (1909).

Both the Schad plurality and Justice Scalia agree that due process is defined in part by historical practice. As mentioned, interpreting predicate offenses as different means of violating a single continuing series element marks a departure from historical guarantees on the degree of factual agreement necessary to establish a conviction. And, of course, on a more specific level, there is no historical analogue to the CCE statute. The first complex criminal statutes like the CCE law appeared only in 1970. See Miller, supra, at 2280 & nn. 12-14. *fn13 We recognize that "history [is] less useful as a yardstick in cases dealing with modern statutory offenses lacking clear common law roots." Schad, 501 U.S. at 640 n.7 (plurality opinion). But to the extent history has any force, it counsels against interpreting CCE predicate violations as means, for which unanimity is not required.

Moreover, in addition to historical practice, the Schad plurality believed that due process requires that different means, for which unanimity is not required, must reflect notions of "equivalent blameworthiness or culpability." Schad, 501 U.S. at 643 (plurality opinion). If the predicate offenses are interpreted as means, we suspect that the CCE statute may have serious problems meeting this requirement. A violation of any provision of U.S. Code Title 21, Chapter 13, subchapter I or II can serve as a predicate offense. See 21 U.S.C. Section(s) 848(c). Predicate offenses thus range from simple possession of marijuana, 21 U.S.C. Section(s) 844, to the distribution of cocaine or heroin, 21 U.S.C. Section(s) 841. The disparate penalties imposed for different violations -- generally no more than a year in prison for the first-time offense of simple possession, see 21 U.S.C. Section(s) 844(a), compared to a minimum of ten years in jail for distributing a large quantity of drugs, see 21 U.S.C. Section(s) 841(b)(1)(A) -- cast serious doubt on whether different predicate offenses (at least these different offenses) can be characterized as equally blameworthy. *fn14 These potential constitutional problems -- both equivalent blameworthiness and lack of a historical analogue -- also lead us to interpret the CCE predicate violations as elements of different offenses, for which unanimity is required.

Judge Garth criticizes this analysis, because, in his view, Congress has "already determined" that different predicate offenses are equally blameworthy by making them alternative routes of violating the same statute. But this view fundamentally misunderstands the nature of the "equivalent blameworthiness" analysis. The Schad plurality's test is a check on the legislature's power: its purpose is to decide whether different routes of violating the same statute are so morally disparate that a legislature cannot constitutionally treat them as mere means. Thus, the mere fact that Congress has established alternative routes of violating the same statute shows only the need for the equivalent blameworthiness analysis; it cannot answer the question.

Judge Garth also suggests that the equivalent blameworthiness test is a pointless exercise: even if different predicate offenses are so morally disparate that a specific unanimity instruction is required, he argues, a defendant could still be convicted under the CCE statute for widely different offenses. While this argument points out another potential problem with the CCE statute -- one not at issue on this appeal -- it does not undermine the utility of the equivalent blameworthiness test.

c. The Rule of Lenity

Finally, requiring specific unanimity is counseled by concerns underlying the rule of lenity. That rule -- requiring ambiguous criminal statutes to be construed in favor of the defendant -- is applied both to the scope of conduct covered by a criminal statute and to the extent of the penalties imposed. See, e.g., Bifulco v. United States, 447 U.S. 381, 387 (1980) ("In past cases the Court has made it clear that [the rule of lenity] applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose.") (citations omitted). According to the Supreme Court, the rule ensures "there is fair warning of the boundaries of criminal conduct and that legislatures, not courts, define criminal liability." Crandon v. United States, 494 U.S. 152, 158 (1990) (citing Liparota v. United States, 471 U.S. 419, 427 (1985); United States v. Bass, 404 U.S. 336, 347-48 (1971)).

The rule of lenity is not directly applicable to the question whether a single statute creates multiple offenses for purposes of jury unanimity. However, the rule has been applied to a conceptually analogous situation: whether a single criminal act constitutes one or more violations of a statute. See Ladner v. United States, 358 U.S. 169 (1958) (a single discharge of a shotgun wounding two federal officers constitutes a single violation of 18 U.S.C. Section(s) 254 (1940)); Bell v. United States, 349 U.S. 81 (1955) (transporting two women across states lines constitutes a single violation of the Mann Act); United States v. Universal C.I.T. Credit Corp., 344 U.S. 218 (1952) (each breach of Fair Labor Standards Act duty to a single employee in any single workweek does not constitute a separate offense).

Moreover, the principles motivating the rule have considerable force here. Several cases -- those addressing the penalties a defendant will receive -- suggest that people deserve warning not only of the boundaries of criminal conduct, but also of the repercussions of crossing those boundaries. For example, in United States v. Granderson, 114 S. Ct. 1259, 1261 (1994), the Court addressed the meaning of "the original sentence" in a statute providing that if a person serving a sentence of probation possesses illegal drugs, "the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence." 114 S. Ct. 1259, 1261 (1994) (quoting 18 U.S.C. Section(s) 3565(a)) (emphasis added). Because the phrase was ambiguous, the Court applied the rule of lenity and interpreted the phrase to mean the applicable Guidelines sentence of imprisonment, not the revoked term of probation, resulting in a much shorter sentence. Id. at 1267-68. In that case, the defendant's conduct -- possessing illegal drugs while on probation -- was clearly illegal and the only question was the harshness of the penalty. The court's opinion thus implies that fair warning as to the harshness of criminal penalties is an important concern. Accord Bifulco v. United States, 447 U.S. 381, 400 (1980) (applying rule of lenity in deciding what punishment is authorized by a statute); Ladner v. United States, 358 U.S. 169, 178 (1958) ("This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.").

Procedural protections at trial are inherently linked to such repercussions, for these protections affect the likelihood that a penalty will be imposed. At some point, differences in procedural protections become as significant as different penalties, and the need for fair warning just as critical. The degree of jury unanimity required by a statute is important enough a protection that we hesitate to interpret an ambiguous statute to require less, rather than more, unanimity.

Just as in the rule of lenity cases, we are faced with an ambiguous statute. See Smith v. United States, 113 S. Ct. 2050, 2059 (1993) (rule of lenity "is reserved for cases where, [a]fter seiz[ing] every thing from which aid can be derived, the Court is left with an ambiguous statute.") (quoting United States v. Bass, 404 U.S. 336, 347 (1971) (quoting United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805))) (internal quotations omitted). As mentioned, the language and legislative history of the CCE statute provide no clue as to Congress's view of specific unanimity. In such a situation, principles underlying the ...

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