ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 94-cr-00314-1)
Before discussing defense counsel's failure to object to the instruction in question, I think that it may be helpful to provide some background regarding the unanimity requirement that is involved in this appeal. In order to be convicted under 21 U.S.C. Section(s) 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 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 least three violations. Id. The panel further held that the jury must agree unanimously on the three violations that are used to support a CCE conviction and that a trial judge must, on request, give a jury instruction specifically setting out this unanimity instruction. Id. at 642-43.
James Russell was convicted of conspiracy to distribute controlled substances in violation of 21 U.S.C. Section(s) 846, and conducting a continuing criminal enterprise (CCE) in violation of 21 U.S.C. Section(s) 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, focusing in more detail on his claim that the CCE instruction deprived him of 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.
Russell and four others were charged with conducting a continuing criminal enterprise (Count I), conspiracy to distribute controlled substances (Count II), and money laundering (Count III). The indictment also sought the forfeiture of property and assets obtained with proceeds of drug sales, pursuant to 21 U.S.C. Section(s) 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 approximately 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 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 network 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.
Testimony at trial also revealed that between 1990 and 1994, Russell had his girlfriend, Melita Garcia, purchase 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 specific use of the guns during particular drug transactions, the government introduced evidence, over Russell's objection, pertaining to Russell's arrest in 1991 in Maple Shade, New Jersey. At the time of the arrest, Russell was traveling with Mark 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 packaging material. Russell pleaded guilty to the gun charge and was released for time served.
Another witness, Andre Grimes, testified that in another 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 testified 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 Section(s) 2D1.1(b)(1) of the Sentencing Guidelines.
To compute Russell's offense level under the Sentencing Guidelines, the district court held a hearing 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 "[t]he best estimate available to the court of a drug quantity for which Russell is responsible is found in the stipulations regarding drug quantity to which Russell's co-conspirators 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 kilograms of powder cocaine and 250 grams of cocaine base, the court determined that Russell was responsible for the same amount. Thus, the court assessed Russell's base offense level, under Section(s) 2D1.5(a)(1), at 38. With the two-level increase for possession of a firearm and a two-level increase for obstruction of justice, Russell's resulting offense level was 42. Applied to his criminal history category of II, his resulting imprisonment range under the Sentencing Guidelines was 360 months to life.
Russell appeals the conviction and sentence entered by the district court. The district court had jurisdiction under 18 U.S.C. Section(s) 3231, and we have jurisdiction under 18 U.S.C. Section(s) 1291.
A. The CCE Statute & Specific Unanimity
The CCE statute under which Russell was convicted requires that the government prove the following elements: (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. Section(s) 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 violations 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 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 instruction failed to advise the jury of the requirement that they unanimously agree as to the identity of the three related 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 permitted 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 underlying 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 in most 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, creates 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, 117 S. Ct. 921 (1997) ("[I]n any case where a count will be submitted to the jury on alternative theories, prudence counsels the trial court to give an augmented unanimity instruction if the defendant requests such a charge. Unanimity is an indispensable element of a federal jury trial.") (internal citation omitted). The purpose of a specific unanimity instruction is to ensure 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 instructions relating to a charge under the CCE statute must direct the jury to agree unanimously on which of the alleged violations constitute the continuing series required by the statute. We held that a general unanimity instruction was insufficient to support a conviction under the CCE statute, concluding that the statute "requires unanimous agreement as to the identity of each of the three related offenses comprising the continuing series."1 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 ("[T]he district court's failure to give . . . [the] proposed specific unanimity instruction was error . . . implicat[ing] Edmonds's Sixth Amendment right to a unanimous verdict in a federal criminal trial."); see also, Andres v. United States, 333 U.S. 740, 748 (1948) ("Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply."); Beros, 833 F.2d at 461 ("[J]ust as the sixth amendment requires jury unanimity in federal criminal cases on each delineated offense that it finds a defendant culpable, it must also require unanimity regarding the specific act or acts which constitutes that offense.") (internal citation omitted).
The jury instruction at issue in this case is constitutionally 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 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.
80 F.3d at 813. Although Russell's jury was instructed that they must "unanimously agree" that he "participated in at least three or more violations of the federal narcotics laws," App. at 2094, this charge still amounted to a general, not a specific, unanimity instruction. The jury should have been instructed that unanimous agreement was required not only to find the existence of a continuing series, but in determining the composition of that series. Our holding in Edmonds was clear: "[t]he 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 . . . requires jurors to be 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.")
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 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 committed different acts. Although the jurors may, in fact, have unanimously agreed on a particular 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) (" `[W]e are not free to hypothesize 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 violations had occurred, yet disagreed as to the identity of the three related offenses comprising 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. *fn1
1. Preservation of Issue for Appeal
Though we have concluded that the charge on the CCE continuing series element was error, we must nevertheless 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 review is plain error. For the following reasons, we ...