UNITED STATES OF AMERICA v. JAMES RUSSELL, aka GAITH JUNIOR DOUGLAS, aka STEVEN SHAWN JONES JAMES RUSSELL, a/k/a Steven Shawn Jones, Appellant.
No. 96-7760
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
January 16, 1998
“United States v. Russell” (1998). 1998 Decisions. Paper 13.
BEFORE: ALITO, LEWIS and McKEE, Circuit Judges.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 94-cr-00314-1) ARGUED AUGUST 11, 1997
1998 Decisions
Opinions of the United States Court of Appeals for the Third Circuit
1-16-1998
United States v. Russell
Precedential or Non-Precedential:
Docket 96-7760
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Recommended Citation
“United States v. Russell” (1998). 1998 Decisions. Paper 13. http://digitalcommons.law.villanova.edu/thirdcircuit_1998/13
Michael J. Zicolello (ARGUED)
Schemery & Zicolello
330 Pine Street
One Executive Plaza, Suite 201
Williamsport, PA 17701
Attorney for Appellant
Office of United States Attorney
240 West Third Street
P.O. Box 548
Williamsport, PA 17703
Attorney for Appellee
OPINION OF THE COURT
LEWIS, Circuit Judge.
James Russell was convicted of conspiracy to distribute controlled substances in violation of
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.
I.
A. Facts
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
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.
B. Weapons Use
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
C. Sentence
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 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
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
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.“).
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,
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
B. Standard of Review
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 believe that the issue was properly preserved, and therefore review for harmless error.
No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.
The purpose of this provision is to allow the district court an opportunity to correct potential problems in jury instructions before the jury begins its deliberations. See United States v. Logan, 717 F.2d 84, 91 (3d Cir. 1983) (“Rule 30 has the manifest purpose of avoiding whenever possible the necessity of a time-consuming new trial by providing the trial judge with an opportunity to correct any mistakes in the charge before the jury begins to deliberate.“) (internal citation omitted).
The trial record in this case discloses the following sequence of events with respect to the charge. First, the judge gave a CCE charge which did not require specific unanimity with respect to the continuing series of offenses. App. at 2091-99. Next, the judge stated that the he would meet with counsel to “find out any objections or exceptions to the charge,” and dismissed the jury for lunch. App. at 2141. During the ensuing conference, the prosecutor and defense counsel engaged in a discussion concerning the applicability of the Edmonds case. Russell‘s counsel argued that a special verdict was required by Edmonds. The government argued that the instruction as given was consistent with Edmonds. App. at 2145. The court then stated that it would consider the issue during the lunch break, App. at 2145, but the issue was not revisited.
Although Russell‘s counsel did not explicitly state that he was objecting to the CCE instruction,3 the colloquy between the court and counsel regarding the Edmonds case, and the
Finally, the context in which the colloquy between the court and the attorneys took place provides an additional basis for concluding that a proper objection was made. The judge convened this on-the-record meeting specifically to “find out any objections or exceptions to the charge.” App. at 2141. This is, of course, a common practice in both
2. Proposed Alternative Instruction
In addition to posing his objection, Russell‘s counsel proposed an alternative jury instruction, one which required specific unanimity as to the series of offenses under the CCE count. In our view, this constitutes an additional ground for applying a harmless error standard in this case.7
The failure to give the defendant‘s proposed jury instruction formed the primary basis for our decision in Edmonds. While our holding was certainly premised upon our discussion as to whether the court‘s charge was sufficient to assure jury unanimity, our primary focus was
Although it is unclear that proposing an alternative jury instruction is itself sufficient to preserve the issue for appeal, at least two of our cases have indicated that the plain error standard will be applied when there has been no specific objection to the charge as given and no alternative jury instruction has been submitted. See, e.g., Beros, 833 F.2d at 458 (“review under the more deferential `plain error’ standard is appropriate in cases where no objection to jury instructions is made, or where no alternative jury instructions are proposed“) (internal citations omitted); United States v. DeCarlo, 458 F.2d 358, 370 (3d Cir. 1972) (plain error analysis is applied “[i]n the absence of an alternative request or specific objection” to the charge). Other circuits have employed this analysis as well. See, e.g., United States v. Payseno, 782 F.2d 832, 834 (9th Cir. 1986) (Where defendant “did not request a specific unanimity instruction and failed to object to the court‘s instructions as given” appellate court will review for plain error.); United States v. Donathan, 65 F.3d 537, 540 (6th Cir. 1995) (“Since defendant neither requested nor submitted [an alternative] instruction, and did not object to the instructions given by the trial judge, the jury instructions are reviewable only for plain error.“). However, at least two circuits have indicated that proposing an alternative jury instruction, without more, is insufficient to preserve the issue. See United States v. Tannenbaum, 934 F.2d 8, 14 (2d Cir. 1991) (“[R]equested instructions do not substitute for specific objections to the court‘s instructions.“) (quoting United States v. Graziano, 710 F.2d 691, 696 n.8 (11th Cir. 1983).
Because we hold that the colloquy between the district judge and trial counsel was tantamount to an objection and therefore sufficient to preserve this issue for our review, we need not determine here whether or not proposing an alternative instruction would be sufficient in and of itself to avoid a plain error standard of review. However, under the facts of this case, where defense counsel not only proposed an alternative jury instruction but engaged the court and
3. Plain Error Analysis
We have concluded that the appropriate standard of review in this case is harmless error. The government took the position at oral argument that the appropriate standard is plain error. The dissent agrees. Ultimately, however, we believe the jury charge constituted reversible error even under the more deferential plain error standard.
For there to be plain error, there must be an “error” that is “plain” and that “affects substantial rights.” United States v. Retos, 25 F.3d 1220, 1228 (3d Cir. 1994) (quoting United States v. Olano, 507 U.S. 725 (1993)). A deviation from a legal rule is “error.” Id. at 733. A “plain” error is one which is “clear” or “obvious.” Id. at 734. In this case the court erred when it “deviated from the legal rule” that jurors must be instructed as to the requirement of specific unanimity to find a continuing series under the CCE statute. Furthermore, the error was plain in that it was “clear” and “obvious” from even a cursory reading of our decision in Edmonds that a finding of specific unanimity was required to sustain a CCE conviction. Edmonds, 80 F.3d at 822; see also United States v. Stansfield, 101 F.3d 909, 920 (3d Cir. 1996) (omission of essential element of offense from jury instructions “usually will be obvious error,” therefore satisfying the requirements that there be “error” and that the error be “plain“).
Having determined that the error was plain, we must now examine whether the error “affected substantial rights,” thus constituting reversible error under plain error review. See Retos, 25 F.3d at 1228. We have no hesitation in concluding that the error did affect a substantial right of Mr. Russell -- his constitutional right to a unanimous jury verdict on each element of the CCE charge. The Supreme Court has held that due process requires “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged.” United States v. Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993) (quoting In re Winship, 397 U.S. 358, 364 (1970)). See Government of
C. Harmless Error Analysis
Under a harmless error review, if we find a constitutional error, we may affirm the district court “only if the error is harmless beyond a reasonable doubt.” United States v. Molina-Guevara, 96 F.3d 698, 703 (3d Cir. 1996) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). Under the facts of this case, we cannot conclude that the error in the charge to the jury was harmless beyond a reasonable doubt, and therefore must reverse.
Although the government introduced a vast array of evidence regarding Russell‘s drug-related activity, and the jury determined that Russell was engaged in a continuing series of violations, as we discussed above, it is impossible to conclude beyond a reasonable doubt that the jury reached unanimous agreement as to which specific violations occurred. Therefore, we can only conclude that Russell was deprived of his Sixth Amendment right to a unanimous jury verdict. See, e.g., Beros, 833 F.2d at 463 (“Because there is a significant possibility that this error may have resulted in a non-unanimous verdict in violation of the Sixth Amendment, the district court‘s instructions were not harmless beyond a reasonable doubt.“). Despite the enormous volume of evidence introduced against Russell, “we cannot affirm a non-unanimous verdict simply because the evidence is so overwhelming that the jury surely would have been unanimous had it been properly instructed on unanimity.” Edmonds, 80 F.3d at 824.
In Edmonds we ultimately determined that the failure of the court to provide a specific unanimity instruction was
Russell, on the other hand, was not charged separately with all of the underlying offenses which, according to the government, constituted the continuing series for the CCE count.8 Although he was convicted of conspiracy to distribute controlled substances, and the government has urged that this is the “functional equivalent” of a finding of unanimity on the continuing criminal enterprise charge, Appellee‘s Br. at 34-35, we cannot agree. The jury returned a unanimous verdict on the conspiracy charge, but we can only conclude from this that the jury agreed that Russell was guilty of that one predicate offense.
The CCE statute requires that the defendant participate in a “continuing series” of violations of the federal drug laws.
In summary, we hold that the jury instruction at issue was erroneous because it failed to apprise the jury of their responsibility to unanimously agree on the identity of the three predicate violations constituting the continuing series required for a CCE conviction. Furthermore, the failure to give a proper unanimity instruction constitutes reversible error under either a harmless error or plain error standard of review. Accordingly, we will reverse the defendant‘s conviction under
III.
Russell has raised a number of other challenges to his conviction, none of which has merit. We will discuss each of them in turn.
A. Alleged Evidence of Multiple Conspiracies
Russell contends that his rights were prejudiced by the admission of evidence of multiple conspiracies at variance with the single conspiracy alleged in the indictment. Specifically, Russell maintains that evidence relating to his activity at the “pink house” and drug activity in Philadelphia illustrate the existence of two other conspiracies separate from the Williamsport conspiracy charged in the indictment. Russell argues that he has been prejudiced because this evidence permitted the jury“to consider offenses unrelated to the Williamsport conspiracy when determining [his] guilt on the conspiracy count.” See Appellant‘s Br. at 30-38. We disagree. Russell has not been prejudiced because the evidence offered by the government supports the finding of a single conspiracy encompassing the drug activities in Williamsport, Philadelphia and the “pink house.”
To determine whether a series of events constitutes a single conspiracy or separate, unrelated conspiracies, a three-step inquiry is required: (1) determining whether there was a common goal among the conspirators; (2) examining the nature of the scheme and determining whether the agreement sought to bring about a continuous result which could not be sustained without the continued
B. Admission of Evidence Relating to Maple Shade Arrest and Handgun Purchases
Russell challenges the admission of evidence relating to his arrest in 1991 in Maple Shade, New Jersey. He also challenges the evidence introduced pertaining to several handgun purchases made on his behalf by Melita Garcia, his girlfriend. Russell maintains that the events surrounding the arrest were not relevant to the issues to be decided by the jury because they occurred in April 1991, one year prior to the beginning of the conspiracy alleged in the indictment. He challenges the evidence of handgun purchases on the basis that: (1) there was no evidence presented that he actually possessed the guns; and (2) three purchases occurred prior to the April 1992 date cited in the indictment as the beginning of the conspiracy.
The events relating to the Maple Shade arrest were relevant at trial to show a common scheme or plan in relation to the conspiracy alleged in the indictment. The evidence at trial established that Russell and Smith were arrested in Maple Shade on their way from New York where they had purchased cocaine from one of Russell‘s sources. App. at 1272. This same source was later used by Russell to purchase drugs for his Williamsport operation. From these events, a jury could reasonably infer a common
Russell‘s challenge to the admission of evidence relating to his gun purchases is equally unpersuasive. Russell contends that the evidence was not relevant because there was no evidence presented relating to his use or possession of the guns. In our view, the jurors could have reasonably concluded that he possessed the guns which were, after all, purchased for him. Furthermore, it has long been recognized that firearms are relevant evidence in the prosecution of drug-related offenses, because guns are tools of the drug trade. United States v. Muniz, 60 F.3d 65, 71 (2d Cir. 1995); see also United States v. Adams, 759 F.2d 1099, 1109 (3d Cir. 1985) (gun possession probative as to scale of conspiracy and type of protection conspirators believed was necessary to protect their operation). Finally, Russell contends that because three of the gun purchases occurred prior to the date cited in the indictment as the beginning of the conspiracy, these purchases cannot be relevant. We disagree. The jury reasonably could have concluded that gun purchases completed prior to the beginning of the drug conspiracy were made with the anticipation that he would need “protection” to establish his drug operation.
For the foregoing reasons, we conclude that the district court‘s admission of evidence regarding the defendant‘s Maple Shade arrest and gun purchases was not an abuse of discretion.
The district court imposed a two-level increase in Russell‘s offense level for possessing a dangerous weapon pursuant to
The Sentencing Guidelines provide that the two-level adjustment should be applied “if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.”
D. Use of Stipulations To Establish Drug Quantity
To sentence a defendant on a drug-related charge, the district court must determine the quantity of drugs for which the defendant was responsible. After reviewing the record from Russell‘s trial, however, the district court concluded that the quantity of drugs for which Russell was responsible could not be discerned from the trial testimony. In order to ascertain a quantity that could be attributed to Russell‘s drug conspiracy and continuing criminal enterprise, the court relied on stipulations agreed to between the government and Russell‘s co-conspirators, stating that they “form[ed] a highly reliable basis for an estimate of the drugs attributable to Russell.” App. at 134.
We are unpersuaded by Russell‘s argument. First, Russell was the organizer of the conspiracy. We believe that the quantity of drugs for which his co-conspirators have taken responsibility provides a reliable basis for estimating the quantity of drugs attributable to him. Second, even if the estimate was unreliable, it was overgenerous to Russell. The evidence at trial showed that because of his operation at the “pink house,” Russell actually participated in a greater number of drug transactions than did his co-conspirators. For the foregoing reasons, we affirm the sentence imposed by the district court for Russell‘s conspiracy conviction. We will reverse Russell‘s conviction and vacate his sentence on the CCE count, and remand for further proceedings consistent with this opinion.
I concur in the affirmance of the defendant‘s conspiracy conviction, but I respectfully dissent from the reversal of his conviction for conducting a continuing criminal enterprise (CCE), in violation of
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
In Edmonds, a later CCE prosecution, the district court refused to give such an instruction, and a panel of our court held that this refusal required reversal. In a concurring opinion, Judge Hutchinson observed that, if the panel had not been bound by Echeverri, he would have been “inclined to follow the reasoning of the Seventh Circuit in United States v. Canino, 949 F.2d 928, 947-948 (7th Cir. 1991), cert. denied, [503 U.S. 996 and cert. denied, 504 U.S. 910 (1992)],” which held that the jurors in a CCE case need not agree unanimously on the particular CCE predicates. Slip op. at 26 (Hutchinson, J., concurring). Similarly, Judge Garth, in concurrence, stated that he “shar[ed] Judge Hutchinson‘s concerns regarding the Echeverri doctrine.” Slip op. at 28 (Garth, J., concurring in part and dissenting in part). He added that he perceived “conceptual tension” between Echeverri and our court‘s decision in United States v. Jackson, 879 F.2d 85 (3d Cir. 1989), in which we held that jurors need not agree unanimously on the identities of the five or more persons that a CCE defendant organized, supervised, or managed. Slip op. at 28 (Garth, J., concurring in part and dissenting in part). Judge Garth suggested that this tension “call[ed] for further resolution.” Id.
The panel opinion in Edmonds was filed on April 18, 1995, and Russell‘s trial commenced a few weeks later, on June 5, 1995. On June 29, 1995, during the course of that trial, the government‘s petition for rehearing in banc in Edmonds was granted and the panel opinion was vacated. Russell‘s jury was instructed on July 12, 1995 -- after Edmonds was listed for rehearing in banc and well before that case was reargued (October 25, 1995) and the in banc decision was handed down (April 4, 1996).
In Edmonds, the full court held, by a narrow vote, that the CCE statute requires that jurors agree unanimously on the particular CCE predicates. The court further held that the district court‘s refusal to give a specific unanimity instruction was erroneous but that the error was harmless. For the reasons set out in my concurring opinion and Judge Garth‘s concurring opinion in Edmonds, I continue to believe that the CCE statute does not contain any such special unanimity instruction, but I recognize that we are bound to follow that holding here.
2. With this background in mind, I turn to the question whether defense counsel in this case adequately objected to the instruction on which the majority relies.
No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.
This is a vitally important rule. It promotes judicial economy by eliminating unnecessary appeals and retrials. More important, because appellate reversals and retrials produce delay, and because delay often results in the loss or impairment of evidence,
After the district court judge completed his charge, he asked whether counsel had any objections. Supp. App.9 at 6. Defense counsel then objected to the trial judge‘s failure to cover two instructions requested by the defense, i.e., number 51 and number 43. Id. at 7-8. Neither of these requested instructions had anything to do with the issue of jury unanimity regarding particular CCE predicates. After the district court ruled on these two matters, the following exchange occurred:
THE COURT: Do you have anything else?
MR. TRAVIS [defense counsel]: No, Your Honor.
Id. at 9.
The jury then retired to deliberate and subsequently sent out a note requesting “a limited reading of the Judge‘s charge as to count one [the CCE count].” App.10 at 2155. In response, the court proposed to read virtually the entire charge concerning the CCE count, and both counsel agreed. Id. at 2156. As a result, the district court once again read to the jury the portion of the charge that the
THE COURT: ...Do you have any objection to those instructions, counsel?
MR. ROCKTASHEL [the prosecutor]: No, Your Honor.
THE COURT: Do you, sir?
MR. TRAVIS [defense counsel]: No, Your Honor.
Id. at 2163-64.
Thus, defense counsel twice told the trial judge that he had no objection to the jury instruction that is challenged in this appeal. Moreover, defense counsel never mentioned or referred even obliquely to Edmonds during the colloquy devoted to objections to the instructions. Accordingly, defense counsel did not, in my view, adequately convey to the trial judge the simple message that was necessary in order to comply with
It is true that defense counsel did subsequently mention Edmonds, but he did so in connection with an entirely different question, i.e., whether the district court should give the jury a special verdict sheet concerning the CCE predicates. Some time after the colloquy concerning the jury instructions, the court stated:
Now, there is one other thing, and that is ... I understood you to say, Mr. Travis, that there were certain specific findings that were required under Count One.
July 12, 1995 Tr. at 70. Defense counsel then referred to the panel decision in Edmonds (which, as previously noted, had been filed on April 18, 1995, but vacated on June 29, 1995, when rehearing in banc was granted). Defense counsel stated: “[T]he impression I had was that you had to give [the jurors] a special verdict page where they said, these are the three violations ...” App. at 2143. The court asked:
THE COURT: Well what are you asking that we do?
Well I -- you asked about the form, the form of the verdict and whether I thought that there was any change that needed to be made. I was attempting to point out that my interpretation of [Edmonds] seems to suggest that there is a need for a special verdict page that requires the jury to fill in three blank lines of which three federal felony offenses they have unanimously agreed upon having been committed by the Defendant, if they agree on that element.
Id. (emphasis added). The district court judge said that he would read the Edmonds panel opinion, but he observed that he thought that “there‘s a general reluctance on the Court of Appeals to require any special verdict forms in criminal cases.” App. at 2144. Later, the court decided not to give the jury a special verdict sheet, and the defendant does not challenge that decision on appeal.
I disagree with the majority‘s conclusion that defense counsel, by requesting a special verdict sheet, adequately conveyed to the district court the message that the court‘s jury instruction was inconsistent with the Edmonds panel decision. As noted, defense counsel, by this point, had twice failed to object to the challenged jury instructions, and when defense counsel finally mentioned Edmonds and the trial judge pointedly asked, “Well, what are you asking that we do” (App. at 2143), defense counsel‘s only request was that the court give the jury a special verdict sheet. Id.
In my view, the question whether a trial judge is required to give a special instruction on jury unanimity in a CCE case is separate from the question whether a trial judge is required to use a special verdict sheet. Although the Edmonds panel and in banc decisions held that it is error to decline to give a special jury unanimity instruction when one is requested, neither the Edmonds panel opinion nor the Edmonds in banc opinion requires a special verdict sheet. On the contrary, we have held that, as a general matter, a district court “has discretion in determining whether to submit special interrogatories to the jury regarding the elements of an offense.” United States v. Console, 13 F.3d 641, 663 & n.23 (3d Cir. 1993). By
In addition to relying on defense counsel‘s request for a special verdict sheet, the majority also relies on the defendant‘s proposed jury instruction number 41, which stated in pertinent part that the jury was required to “agree unanimously on the three acts which constitute the continuing series of Federal Drug Law violations.” See Maj. Op. at 12 n.7 (quoting Supp. App. 25). If defense counsel had objected to the court‘s charge on the ground that it failed to cover this point, and if the district court had nevertheless declined to cover that point, then this case would be indistinguishable from Edmonds, and I would join the majority in voting to reverse. However, that is not what occurred. After the district court completed its jury instructions and asked defense counsel whether he had any objections, defense counsel referred to the 93 pages of proposed instructions that he had submitted and asked whether he could assume that any instruction that had not been given should be “deemed denied.” Supp. App. at 6. The court rejected this suggestion and instructed defense counsel to assert any objections he had to the instructions that the court had given. Id. Then, as previously noted, defense counsel argued that the court had erred in failing to cover two of the requested defense instructions, i.e., numbers 51 and 43. Id. at 7-8. Defense counsel made no reference to instruction number 41, and therefore it seems to me that, simply by including that instruction in the large packet of requested defense instructions, the defense did not fulfil its obligation under
For these reasons, I would hold that defense counsel did not adequately object at trial to the jury instruction that is now challenged on appeal. Consequently, I believe that our review is limited to determining whether the district court‘s instruction constituted “plain error.”
3. As noted, the in banc court held in Edmonds that, in order to find a defendant guilty under the CCE statute,
The instruction challenged in this case did not affirmatively mistake the law, as interpreted in Edmonds. The instruction did not advise, contrary to Edmonds, that it was unnecessary for the jurors to agree unanimously regarding the three CCE predicate offenses that occurred. In the challenged instruction, the district court stated:
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 some way in at least three or more violations of the federal narcotics laws which are in some way related to each other.
App. at 2094. See also App. at 2158-59. As far as it went, this instruction was entirely accurate: in order for the jury to find that Russell violated
In my view, this failure to provide the jury with a more complete and specific explanation of the unanimity requirement in a CCE case does not amount to “plain error.” In United States v. Olano, 507 U.S. 725 (1993), the Supreme Court held that, in order for an appellate court to find plain error, it must first find 1) an error 2) that is plain and 3) that affects substantial rights. Even if all three of
Here, I agree that the first of these four requirements (there was an error) was met. But I do not believe that the second requirement (the error was “plain“) was satisfied, and therefore I need not consider the third or fourth requirement.
” `Plain’ is synonymous with `clear’ or, equivalently, `obvious.’ ” United States v. Olano, 507 U.S. at 734. As we have explained:
To find plain error, the mistake must be sufficiently obvious that “the trial judge and prosecutor were derelict in countenancing it, even absent the defendant‘s timely assistance in detecting it.”
Government of Virgin Islands v. Knight, 989 F.2d 619, 632 (1993) (quoting United States v. Frady, 456 U.S. 152, 163 (1982)). In my view, the omission in this case was not “sufficiently obvious that `the trial judge and prosecutor were derelict in countenancing it, even absent the defendant‘s timely assistance in detecting it.’ ” Knight, 983 F.2d at 632 (quoting Frady, 456 U.S. at 163). The omission was simply a mistake, the sort of mistake that would have constituted reversible error had defense counsel called it to the trial judge‘s attention as required by
Teste:
Clerk of the United States Court of Appeals for the Third Circuit