*2 Weed, Denay a distributor herself. In CHAMBERS, Before KOZINSKI and August plane Jerome obtained and a 198.5 NOONAN, Judges. Circuit pilot, Larry transport to Wooster Elko, kilogram Nevada with a half of co- NOONAN, Judge: Circuit caine to meet Weed. There in- Jerome Gary appeals his conviction Jerome structed Wooster arrang- to remain while continuing criminal enter- ing fly for he and Weed to with cocaine in of 21 prise violation U.S.C. § Boise, Idaho. Hall then flew Jerome conspiracy in violation of 21 conviction proceeds and Weed with the of the sale drug 846 and various related U.S.C. felo- § back to Elko and Wooster. From at least affirm nies. We all his convictions with delivery Boise, the time of of the cocaine in exception engag- conviction Hall was aware that Jerome was involved ing continuing in a drug in a transaction which he was assist- pivotal reversing issue in this convic- ing by flying proceeds Jerome with the out tion is whether Jerome was to have shown of Boise. in acted concert with five whom he operation In the eventual undercover against August 1986 Jerome of- agents DEA kilograms fered to sell BACKGROUND August cocaine. Jerome and Wooster Gary Jerome was a dealer narcotics kilograms agents delivered the five the San Francisco and Lake Tahoe area for Hyatt Village, at the Hotel in Incline Cali- years prior at least 10 to his arrest in 1986. fornia. Jerome was arrested at this time. bought He from and then dis- wholesalers drugs purchasers pensed variety to a PROCEEDINGS included, others, among employees who August Jerome was indicted on Lucky holding party, Stores an annual superseding and in a indictment was number of members of the substantial charged operating crimi- with and, Hospital medical staff of Lake Tahoe (CCE), conspiracy nal with eventually, agents Drug of the undercover cocaine, with of co- distribute distribution (DEA). Enforcement Administration caine, causing traveling with others to Beginning pur- Wooster was a travel in interstate for the 1984 John commerce activities, conducting major supplier pose drug in turn Jerome. Wooster they acted in concert long telephone to facilitate with the use Ray, nizer. United States conspiracy to conspiracy, and with drug Cir.1984). 1361, 1367 marijuana marijuana. distribute He went eventually severed. were Third, counts First, of the also the law It is May charges on remaining trial on the there is and Eleventh Circuits Seventh *3 in consisted 26, 1987. Jerome’s defense agree as the to no need for disorga- depressed, he testimony that was persons with each of the five identity of being point of alcoholic to the nized and in acting concert. organizer is whom the entrapped; and insane; had Congress that he been theory courts is that of these The not con- enterprise persons did punishing his small-scale in who that interested was certain continuing criminal organized a an stitute had all size 2, agreed on the he convicted if July 1987 was size and that the necessary it was not organization the of counts. per- the every juror agree as to who that trial was de- for a new Jerome’s motion organization. up the were that made sons impris- years to 20 He was sentenced nied. Jackson, 879 See, v. States e.g., United continuing enter- for the onment Cir.1989). 85, (3d F.2d 87 to this sentence years consecutive prise, 15 ar- prosecution the present In the case distribute, and to three conspiracy to was the the Jerome gued to that sentences, the consecutive to each five-year Wooster; and Monica of Joe nizer of John others, drug felonies. for the other Unden; Jay of and Kinney; of Sharon affidavit Jerome submitted Post-trial Larrozolo, Sanders, Kendricks, Duke; of Housley Rickey that one the effect to Pellón, Devaney; and of Hall. On and the member of by an unnamed told that government concedes under appeal the considered defense juror that “organizer” interpretation the term no of losing he was incompetent that counsel organizer to of be be could Jerome said this the basis of case for Jerome. On suppliers. With this evidentiary requested an Jerome affidavit Devaney, that Lar- it is evident concession hearing, was which denied. Kendricks, rozolo, Pellón and Sanders could appeals. Jerome persons whom among the five not count organized. to have was found
Jerome ANALYSIS possible persons As to the other who Jerome, the in doneert with evidence acted Requirement Convic- Five Person Arguably a ra- interpretation. open is to Enter- Continuing a Criminal tion of Jay inferred that juror could have tional prise enforcers, they although as Duke were and guilty of To be dollar charged to collect a thousand $500 shown enterprise person must be their enforce- debt instance five or more acted “in concert with to ob- appears doubtful that Jerome ment it whom such persons respect to other them,” from income tained “substantial organizer, a occupies position person requires. the statute position position, any other supervisory say, organized was it is fair to per- such management, and from which fly pro- him with at least to re- income or obtains substantial son Unden, there drug was ceeds of a sale. 848(c) (Supp.1990). 21 U.S.C. sources.” § show, witting was his some evidence is that the statute law is established It marijuana deal big in the collaborator respect to the five although, with satisfied was shown to be through. fell Weed person charged with organized, the whose merely but a distributor a customer enterprise did continuing criminal and back to Nevada Jerome trip to Idaho relationship with same kind of them, relationship did and each is question time, most debatable and the same exist at reg- Kinneys, his Wooster and each other so whether not act concert with
173 subject to suppliers, Testimony Agent DelVErgo ular were Jerome as The organizer.” We read the “an Dell’Ergo permitted testify language any position manage “or other expert pertaining as an to CCE violations. “organizer” ment” to indicate that an must As we have reversed the conviction on this managerial responsi exercise some sort of count, unnecessary it is to consider the simply if bility; qualify one does not one objections made. Part of testimony up system supply. sets United States was against intended to bolster the case Cir.1988), 421, Apodaca, 426 biggest Jerome as “the fish in Lake Tahoe” denied, rt. U.S. S.Ct. organizing drugs the distribution of dele ce (1989). Every legit community L.Ed.2d 342 terious to the show that not, contended, Jerome was as Jerome arrangements imate retail store makes *4 player. objectionable minor Whatever was regular suppliers. with its In one sense it part testimony may this may organize supply, be said to its but off rubbed to Jerome’s detriment on the organize suppliers? Surely does it its not other counts. But as to them the evidence being manager in the sense of of its overwhelming, any was and error admit suppliers. organizer To be an within the ting Dell’Ergo’s testimony was harmless. required sense of the statute more is than simply being steady a customer. Under Conspiracy
proper
jury
a
could have found
instructions
organizer
that Jerome was the
of Wooster
ample
There was
evidence that Jerome
trip
possible
on the
to Elko and it is
that a
agreed
drugs.
with others to distribute
orga
jury could have found that Jerome
conspiracy
His conviction of
stands.
trip
Kinney
nized the
of Monica
from Flor Count 24
Consequently
Tahoe.
“the five
ida to Lake
Jerome contends
that the
evidence
requirement might
person”
have been met
3,
April
he intended to distribute cocaine on
(John
by
the two
Wooster and
1986,
which
he was
under
convicted
Kinney), plus
pilot, Larry
Monica
24,
Agent
Count
was his admission to
distributor,
Weed,
plus
Denay
plus
Dell’Ergo
possessed
pound
that he
helper, Sharon Unden.
cocaine. His conviction does not rest on
acting
Dell’Ergo,
this admission alone.
un-
not, however,
ques
reach the
doWe
dercover, observed two cocaine transac-
jury
tion of whether the
in this case could
tions at Jerome’s residence on the state.
Rather,
have reached this conclusion.
we
testimony
His
corroborated Jerome’s ad-
jury
presented
note that the
was
mission.
variety
prosecution
that the
told
Misconduct
Juror
making up
them
count in
could
the five
post-trial
did not raise
affidavit
persons necessary
trigger the statute.
requiring
evidentiary hearing.
an issue
Granting
that half of these
could
most,
At
it asserted information about the
countable,
treated
have been
process
juror.
mental
It showed no
including
had no instruction
the noncounta-
upon
juror’s
extraneous influence
deci
disagree
bles. We do
with those cir
Langford,
sion. United
v.
States
unanimity
cuits that have held the
instruc
(9th Cir.1986),
denied, 483
cert.
U.S.
unnecessary.
tion is
We do not need to
1008, 107
The district court prosecutor people improperly There is named possible. the maximum Jerome to argument. closing punished that the court him no evidence Rather, going the court noted that to trial. Second, given specific was not away the first and most he was “far instruction, i.e., unanimity an instruction culpable committing these crimes.” unanimously agree as jurors that the must sentencing was within bounds identity people the five of each of Eighth Amendment. and did not offend the supervised.1 organized, managed or All are AFFIRMED with the convictions case, plain this the facts of this exception of the conviction of Gilley, error. See United States enterprise, which is continuing criminal Cir.1988); (9th 1211-13 United VACATED. Payseno, F.2d 832 Cir. States v. 1986). unanimity specific A instruction KOZINSKI, concurring: Judge, Circuit possibility’ given ‘genuine must “when a be exists,” i.e., juror when it is confusion I I in the would re- judgment. concur some will possible jurors convict verse the of one set of facts others basis while an essential element of conviction because will on the basis another set convict met: may such a conviction *5 1211, quoting at Gilley, facts. F.2d as unanimously agree to the jury that the Echeverry, United States people identity five whom Jerome Cir.1983); at Payseno, nized, managed within the supervised, or twenty 837. This is the here. Some case meaning the statute. There are two prosecutor people by were named the dur problems here. potential ing closing argument pros First, government the conceded at meeting five-person require pects for the us, peo- argument before some the oral way have RT 2594-97. We no ment. prosecutor during ple by the named jurors knowing whether different counted suppliers closing argument jury—the to the given large people; the cast of different suppliers—could not have been of Jerome’s characters, among complex the relations organized, managed supervised by Je- large the volume of evidence them and any reading of the rome under statute. jury during lengthy the presented to may jurors Yet have counted some trial, entirely possible jury just did it is they concluded Je- these toward that. rome The instructions had suppliers” clarify “suppliers that definition; could not meet
fact, may suggested the instructions 46, given contrary. Instruction over objection, that
the defendant’s stated “[t]he meaning ‘organizer’
ordinary the word necessarily implication an carry
does not ‘organizer’ one must exercise
that to be 320, Instruction
control over others.” CR instruction, jurors
46. on this Based “orga-
may that Jerome have concluded suppliers and
nized" the agree majority necessarily with that factual determinations that underlie 1. I cannot somebody as to could organized should have been instructed “who a conclusion defendant, conviction a con- not count towards Jerome’s tinuing person e.g., that the did noth- Maj. (em- enterprise." at ing supply drugs than more defendant’s added). argued phasis appellant has never supplier. The must what alone determine that Moreover, should been so instructed. relationship dealings person each might well have such an instruction the defendant. may judge improper. make the