Aftеr an eleven-month investigation into the activities of a heroin smuggling ring, Hakeem Olayinka Alli-Balogun (Balogun) was arrested and charged with engaging in a continuing criminal enterprise to import heroin, conspiring to import heroin, and importing heroin. At trial, the government showed that six “investors” provided varying amounts of money for each smuggling trip. Between April 1991 and May 1992, thirteen such trips were conducted. At least twenty-two kilograms of heroin were successfully smuggled through these trips. The evidence adduced at trial to show Balogun’s participation in the smuggling ring was over *11 whelming. The jury convicted Balogun of engaging in a continuing criminal enterprise to import heroin, in violation of 21 U.S.C. § 848(a); conspiring to import heroin, in violation оf 21 U.S.C. § 963; and three counts of importing heroin into the United States, in violation of 21 U.S.C. §§ 952(a) and 960. Balogun was sentenced to a term of 360 months in prison and a special assessment of $300, to bе followed by a five year term of supervised release. He argues that his conviction should be reversed because 1) he was deprived of effective assistancе of counsel; 2) the district court erred by admitting evidence of other bad acts; and 3) the district court erred by failing to instruct the jury that it must unanimously agree on which three narcotics violations constituted the series of violations needed to satisfy the continuing criminal enterprise statute.
Defendant argues that his Sixth Amendment right to effective assistance of counsel was violated because his counsel did not understand the continuing criminal enterprise statute, 21 U.S.C. § 848(a). Specifically, he contends that his counsel should have argued thаt his role in the smuggling ring was merely a passive one. To prevail on this Sixth Amendment claim, defendant must prove that counsel’s representation “fell below an objective standаrd of reasonableness” judged by “prevailing professional norms.”
Strickland v. Washington,
Defendant also argues that the district court erred by allowing evidence оf prior bad acts. In particular, defendant objects to the introduction of the testimony of Adekunle Lawal, Balogun’s cousin and a cooperating witness. At trial, Lawal testified that Balo-guh introduced him to heroin trafficking and explained how the conspirators came to be involved with each other. Defendant argues that the court wrongly pеrmitted Lawal to testify to events that occured between 1988 and 1990 and to state that Balogun stored heroin during this time in an apartment that Balogun permitted Lawal to use. He also argues that the court erred by permitting Lawal to testify that Balogun had hired a courier to smuggle heroin by swallowing heroin-filled balloons, and, finally, to testify that in 1988, Lawal had been the victim of a drug “ripoff” in which he lost 300 grams of heroin that belonged to Balogun.
Evidence of other crimes, wrongs, or acts is admissible under Rule 404(b) of the Federal Rules of Evidence if such evidence is relevant to issues such as intent, knowledge, preparation, plan, and absence of mistake or accident, and if, under Rule 403, the probative value of the evidence is not substantially outweighed by the risk of unfair prejudice. We have held that evidence of other bad acts is admissible “as long as the evidence is not offered to рrove propensity” and its probative value is not outweighed by its prejudicial impact.
United States v. Levy,
Balogun finally claims that the district court committed plain error when it failed to instruct the jury that it had to agree unanimously as to which three drug violations constituted the basis for the continuing criminal enterprise charge. Defendant’s principal support for this claim is
United States v. Edmonds,
We believe that the failure to instruct the jury that it had to agree unanimously as to which three drug violations constituted the “continuing series of violations” required by the Continuing Criminal Enterprise statute was not plain error. Plain error requires an “error” that must be “clear” or “obvious” and that must “affec[t] substantial rights,” which “in most cases ... means that the error must have been prejudicial....”
United States v. Olano,
First and foremost, on the facts of this ease, we do not see how an error can be plain error when the Supreme Court and this court have not spoken on the subject, and the authority in other circuit courts is split. In
Olano,
the Supreme Court stated that “[a]t a minimum, the Court of Appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.”
Judge Weinstein, moreover, instruсted the jury that “[ajny verdict must be unanimous.” In other contexts, we have held that a failure to instruct the jury specifically as to the unanimity required for a particular count was not рlain error where the court gave a general instruction akin to that given by Judge Weinstein in this case.
See United States v. Shaoul,
We do not need to decide whether the statute before us requires a specific unanimity instruction, and whether a failure to give such a unanimity instruction, had it been requested, would have been reversible error. Cf. Eric S. Miller, Note, Compound-Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts, 104 Yale L.J. 2277 (1995). It is enоugh to say that the consistent approach of this Circuit to issues analogous to the one before us supports our conclusion that the failure to give such an instruction in this case does not constitute plain error.
We have examined all of Appellant’s arguments and find them to be without merit. Accordingly, we affirm the decision of the district court.