UNITED STATES of America v. Theodore EDMONDS, Appellant.
No. 93-1890.
United States Court of Appeals, Third Circuit.
Decided April 4, 1996.
Reargued In Banc Oct. 25, 1995.
Argued Oct. 24, 1994. Filed April 18, 1995. Vacated June 29, 1995.
Accordingly, we affirm the district court‘s conclusion that the JCP fee is program income as defined by
F. New Evidence
The Commonwealth‘s final contention is that we should “remand so that the Appeals Board can consider new evidence uncovered in HHS‘s belated response to the Commonwealth‘s Freedom of Information Act (“FOIA“) request.” Appellant‘s Brief at 36. We will treat the Commonwealth‘s motion for a remand to the Appeals Board as a motion for a new trial based on newly discovered evidence, and therefore, review the district court‘s denial of the Commonwealth‘s motion for an abuse of discretion. See Dunn v. HOVIC, 1 F.3d 1362, 1364 (3d Cir.), cert. denied, 510 U.S. 1031, 114 S.Ct. 650, 126 L.Ed.2d 608 (1993) (motion for new trial reviewed for an abuse of discretion). The purported new evidence is a 1988 policy memorandum (PIQ-88-5) issued by HHS’ Office of Child Support Enforcement. The memorandum states that interest earned by North Carolina county courts on child support collections, before being forwarded to the state‘s IV-D agency, is not program income because the county courts are not under cooperative agreements with the State IV-D agency, and thus, are not bound by state and federal IV-D regulations.
The district court denied the remand motion because “PIQ-88-5 can be distinguished from the facts presented here, as DPW administers its Title IV-D program through cooperative agreements with all of Pennsylvania‘s judicial districts, and the JCP fee is collected by the Pennsylvania Domestic Relations Section of the Court of Common Pleas.” We agree. The Commonwealth also suggests that a previously undisclosed 1989 Federal Register statement is new evidence that warrants a remand. However, by definition, a Federal Register notice is public. We are at a loss to understand how such public information should be viewed as “new evidence” justifying a remand merely because the Commonwealth‘s initial research apparently somehow failed to find it.
The district court acted well within its discretion in refusing to remand this case to the Appeals Board. PIQ memoranda are fact-specific policy documents, not intended to apply broadly, and are due less weight than regulations. Simply stated, they are not binding precedent on the Appeals Board. Finally, even if PIQ-88-5 had some precedential value, we agree with the district court‘s conclusion that the case before us is distinct and the memorandum was, therefore, of little value to the Appeals Board.
Accordingly, we affirm the district court‘s denial of the Commonwealth‘s motion for a remand to the Appeals Board.
III.
For the foregoing reasons, the judgment of the district court will be affirmed.
Domnick J. Sorise (argued), Clinton Township, MI, for Appellant.
Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE, SAROKIN, and GARTH, Circuit Judges.
OPINION OF THE COURT
BECKER, Circuit Judge.
A federal jury convicted appellant Theodore Edmonds of violating the Continuing Criminal Enterprise statute (“CCE“),
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 banc1 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, 112 S.Ct. 1940, 118 L.Ed.2d 546, and cert. denied sub nom. Flynn v. United States, 503 U.S. 996, 112 S.Ct. 1701, 118 L.Ed.2d 410 (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, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (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 280-81, 113 S.Ct. 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. How-
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
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.
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. (“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
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, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (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 280-81, 113 S.Ct. at 2082.3 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, 111 S.Ct. 2491, 115 L.Ed.2d 555 (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.4
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, 110 S.Ct. 3237, 111 L.Ed.2d 748; United States v. Young, 745 F.2d 733, 747 (2d Cir.1984), cert. denied sub nom. Myers v. United States, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (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, 111 S.Ct. 206, 112 L.Ed.2d 167, and cert. denied sub nom. Manns v. United States, 498 U.S. 904, 111 S.Ct. 270, 112 L.Ed.2d 226 (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
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, 111 S.Ct. 2491, 115 L.Ed.2d 555 (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
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, 111 S.Ct. at 2495 (quoting Ariz.Rev.Stat. § 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, 111 S.Ct. at 2495-96 (plurality opinion) (quoting State v. Schad, 163 Ariz. 411, 788 P.2d 1162, 1168 (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, 111 S.Ct. at 2496-97 (plurality opinion).6 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, 111 S.Ct. at 2496-97. Thus, it was unnecessary to decide whether a criminal defendant has a right to a unanimous verdict in a state capital case.7
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, 111 S.Ct. at 2497 (plurality opinion); see also id. at 650-52, 111 S.Ct. at 2506-08 (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, 111 S.Ct. at 2497-98 (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, 111 S.Ct. at 2499-2500. 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, 111 S.Ct. at 2506-07 (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, 111 S.Ct. at 2507.
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, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970), which requires “proof beyond a reasonable doubt 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, 111 S.Ct. at 2509 (White, J., dissenting).
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,
[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—
When the object of our statutory interpretation inquiry is correctly identified, Judge Alito‘s criticisms fall short. That Congress has not generally adopted “special unanimity requirements” or that Congress can be explicit when it wants “special unanimity requirements” is immaterial. Congress determines “elements,” and hence, what facts require unanimous jury agreement, every time it passes a criminal statute. For example, we would not allow a conviction to stand for murder under
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 [
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 anti-social 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.11 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.12
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
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, 111 S.Ct. at 2507 (Scalia, J., concurring in the judgment).13
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, 29 S.Ct. 527, 53 L.Ed. 836 (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. 12-14.14 We recognize that “his-
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, 111 S.Ct. at 2503 (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
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, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980) (“In past cases the Court has made it clear that [the rule of lenity] applies not only
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, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) (a single discharge of a shotgun wounding two federal officers constitutes a single violation of
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, 511 U.S. 39, 114 S.Ct. 1259, 1261, 127 L.Ed.2d 611 (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.” Id., 114 S.Ct. 1259, 1261 (quoting
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, 508 U.S. 223, 238-39, 113 S.Ct. 2050, 2059, 124 L.Ed.2d 138 (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, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971) (quoting United States v. Fisher, 6 U.S. (2 Cranch) 358, 386, 2 L.Ed. 304 (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 rule of lenity,
2. Reconciling United States v. Jackson
The government argues that requiring specific unanimity as to predicate offenses would conflict with United States v. Jackson, 879 F.2d 85 (3d Cir.1989), which held that, in a CCE prosecution, unanimous agreement is not required as to the identity of the five or more underlings supervised, organized, or managed by the defendant. See also United States v. Canino, 949 F.2d 928, 946 (7th Cir.1991) (criticizing the apparent inconsistency between Jackson and Echeverri). However, a proper understanding of congressional intent shows that Echeverri and Jackson are quite consistent.
In Jackson, we considered whether, in a CCE prosecution, unanimous agreement is required as to the identity of the five or more underlings supervised, organized, or managed by the defendant. We concluded that the primary concern of the five or more persons requirement is “that the organization in which the defendant played a leadership role was sufficiently large to warrant ... enhanced punishment,” and held that unanimity on the specific identity of the underlings is not required. Id. at 88.
Jackson‘s holding is consistent with our holding here for two reasons. First, unlike the continuing series requirement, the five-person requirement has a historical analogue in the law of conspiracy, which generally has not required the jury to unanimously agree on the identity of the defendant‘s co-conspirators. See United States v. Harris, 959 F.2d 246, 256 & n. 13 (D.C.Cir.) (stating this proposition and citing cases), cert. denied, 506 U.S. 932, 113 S.Ct. 362, 121 L.Ed.2d 275, and cert. denied sub nom. Smith v. United States, 506 U.S. 932, 113 S.Ct. 362, 121 L.Ed.2d 275, and cert. denied sub nom. Palmer v. United States, 506 U.S. 933, 113 S.Ct. 364, 121 L.Ed.2d 277 (1992).16 Second, unlike the wide array of potential CCE predicate offenses, acting in concert with one group of five people is no more or less blameworthy than acting in concert with another group of five. Id. at 256-57. Thus, two of three reasons that lead us to conclude from its silence that Congress meant to require unanimity as to specific predicate offenses—historical precedent and possible constitutional problems—cause us to read congressional silence as to the five-person requirement quite differently.
3. Conclusion
In summary, we hold that the CCE statute requires unanimous agreement as to the identity of each of the three related offenses comprising the continuing series. Our interpretation is guided by constitutional concerns, traditions in criminal jurisprudence, and the rule of lenity. These background principles lead us to conclude that when a statute combines formerly distinct offenses into a single crime—offenses that may occur at different times and in different places—we should assume that Congress intended the formerly distinct offenses to retain their “offense” status with its attendant unanimity requirements. Asking Congress to speak clearly is especially important here, where the penalty for violation of the statute is quite severe, from between twenty years to life in jail. See
In making this decision, we do not hamper Congress‘s ability to enact innovative statutes to deal with new kinds of crime. Congress may alter unanimity requirements by statute if it makes its intention clear.17 Fur-
III. Harmless Error
Because there is a “reasonable likelihood,” Estelle v. McGuire, 502 U.S. 62, 71-73, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991); Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1197-98, 108 L.Ed.2d 316 (1990), that the jury interpreted the district court‘s general unanimity instruction to require agreement only that some three predicate violations occurred and not that the same violations occurred, the district court‘s failure to give Edmonds‘s proposed specific unanimity instruction was error. This error implicates Edmonds‘s Sixth Amendment right to a unanimous verdict in a federal criminal trial.18 However, most constitutional errors are subject to the harmless error analysis of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Rose v. Clark, 478 U.S. 570, 578-79, 106 S.Ct. 3101, 3106-07, 92 L.Ed.2d 460 (1986) (“[W]hile there are some errors to which Chapman does not apply, they are the exception and not the rule.“).
We will not engage Judge Alito‘s alternative view that only the Sixth Amendment is relevant here. As the Schad plurality pointed out, “this difference in characterization ... is immaterial to the problem of how to go about deciding what level of verdict specificity is constitutionally necessary.” Schad, 501 U.S. at 634 n. 5, 111 S.Ct. at 2498 n. 5 (plurality opinion).
Edmonds argues, and the original panel held, that Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), precludes us from engaging in harmless error analysis. In Sullivan, a unanimous Supreme Court held that a constitutionally deficient reasonable doubt instruction is not subject to harmless error analysis. The Court reasoned that a verdict of guilty beyond a reasonable doubt is a necessary predicate of Chapman‘s harmless error inquiry:
[Chapman‘s] inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.
... There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harm-
less error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt—not that the jury‘s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. The Sixth Amendment requires more than appellate speculation about a hypothetical jury‘s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.
Id. at 279-80, 113 S.Ct. at 2081-82 (citations omitted).19 Edmonds asserts, and the panel agreed, that the jury instruction in this case allowed the jury to return a nonunanimous verdict on an element of the offense, and thus there is no actual jury finding of guilty upon which harmless error analysis may operate.
Edmonds and the panel are correct in a sense. Just as the Sixth Amendment precludes the court from affirming on the ground that the jury would have found the defendant guilty beyond a reasonable doubt had it been properly instructed, we cannot affirm a nonunanimous verdict simply because the evidence is so overwhelming that the jury surely would have been unanimous had it been properly instructed on unanimity.
Affirmance here, however, does not require making this speculative leap. Unlike the complete undermining of the verdict that occurred in Sullivan, this case involves error affecting only one of many findings made by the jury. The Supreme Court has held that similar errors—jury instructions that erroneously contain a mandatory presumption or misdescribe an element of the offense—may be harmless if the remaining unaffected jury findings are “functionally equivalent to finding” the lacking element. Carella v. California, 491 U.S. 263, 271, 109 S.Ct. 2419, 2423-24, 105 L.Ed.2d 218 (1989) (Scalia, J., concurring in judgment); see also Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) (instruction containing an erroneous presumption); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (same); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (same); Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (instruction misstating an element of the offense).
Even though such errors impermissibly deprive the jury of its fact-finding function,20 the resulting verdicts may be salvageable. Specifically, if other facts found by the jury are “so closely related” to the fact tainted by erroneous instructions “that no rational jury could find those facts without also finding [the former] fact, making those findings is functionally equivalent to finding” the lacking element. Carella, 491 U.S. at 271, 109 S.Ct. at 2423-24 (Scalia, J., concurring in the judgment); see also Rose v. Clark, 478 U.S. 570, 580-81, 106 S.Ct. 3101, 3107-08, 92 L.Ed.2d 460 (1986) (“When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt. In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury. In that event [,] the jury has found, in Winship‘s words, ‘every fact necessary’ to establish every element of the offense be-
Sullivan itself distinguishes this line of cases from the fundamental flaw of misdescribing the burden of proof. In the latter case, the error “vitiates all the jury‘s findings.” Sullivan, 508 U.S. at 281, 113 S.Ct. at 2082 (emphasis in original). Absent “the essential connection to a ‘beyond-a-reasonable-doubt’ factual finding a reviewing court can only engage in pure speculation.” Id. at 281, 113 S.Ct. at 2082 (citations omitted).
In this case it is unnecessary to speculate on what the jury‘s verdict would have been absent the erroneous instruction: the jury made proper unanimous findings of other facts which are “functionally equivalent” to finding that three specific predicate offenses were related to each other. Adhering to the assumption that jurors follow the instructions they are given, see Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987), we know that the jury unanimously found that Edmonds committed every CCE predicate offense alleged, and that Edmonds committed some three related predicate offenses.
The only finding for which unanimity is potentially lacking is that the same three predicate offenses are related to each other. However, the evidence introduced at trial to show that Edmonds committed each of the predicate offenses established that Edmonds used the same packers and mode of distribution throughout. See Edmonds, 52 F.3d at 1243. Edmonds did not argue to the jury—and has not argued since—that any of the predicate offenses were unrelated to the others.21 Thus, the facts necessarily found by the jury to convict on the predicate offenses show conclusively that all of the predicate offenses are related to each other.
In these circumstances, no rational jury could unanimously find Edmonds guilty of the predicate offenses without unanimously finding that the offenses were related to each other. See Ianniello v. United States, 10 F.3d 59, 64 (2d Cir.1993) (holding that a failure to instruct the jury that a RICO conviction requires a relationship between predicate offenses was harmless because the evidence which the jury must have believed to convict on every alleged predicate act conclusively established their relatedness); United States v. Maloney, 71 F.3d 645, 658 (7th Cir.1995) (holding harmless court‘s erroneously instructing the jury that it could convict for obstruction of justice under
Judge Stapleton takes issue with our understanding of the term “functionally equivalent” findings. While he does not say so explicitly, he seems to read Rose v. Clark to allow harmless error analysis only when untainted findings, considered without reference to the evidence supporting the findings, are logically equivalent to the missing element. Otherwise, he argues, the Court engages in impermissible speculation about what a properly instructed jury would have decided.
We acknowledge that the Supreme Court has not clearly defined “functionally equiva-
Judge Stapleton argues that in Rose the missing element was “necessarily inferred” from fact findings in that case, while here we impermissibly establish the missing element from “the strength of the trial evidence.” We disagree. Both the Rose Court and this Court allowed the missing element to be found by looking at the jury‘s untainted findings in light of the evidence supporting those findings. In Rose, the trial court impermissibly instructed the jury to presume malice from certain predicate facts:
All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. Thus, if the State has proven beyond a reasonable doubt that a killing has occurred, then it is presumed that the killing was done maliciously.
Rose, 478 U.S. at 574, 106 S.Ct. at 3104. Given this instruction, the jury need only have found that a killing had occurred to establish the element of malice. But malice does not necessarily follow from the fact of a killing. Therefore, the established predicate fact bore no logical relationship to the missing element. In Judge Stapleton‘s terms, the fact that a killing has occurred is “as consistent” with the nonexistence of malice as it is with the existence of malice.
Nevertheless, the Supreme Court remanded for application of harmless error analysis. The Court stated:
When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt. In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury.
Id. at 580-81, 106 S.Ct. at 3107-08. The Court was explicit that this inquiry would consider the evidence introduced at trial. In particular, it noted that “[t]he parties disagree on the scope of the evidence that must be assessed” on remand. Id. at 584 n. 13, 106 S.Ct. at 3109 n. 13; see also id. at 583, 106 S.Ct. at 3109 (making several references to Chapman‘s requirement that the entire record be reviewed).22 In giving directions for remand, the Court gave the following example:
[I]t would defy common sense to conclude that an execution-style killing or a violent torture-murder was committed unintentionally. It follows that no rational jury would need to rely on an erroneous presumption instruction to find malice in such cases.
Id. at 581 n. 10, 106 S.Ct. at 3107-08 n. 10. Presumably, in the example described by the Court, the jury would not make findings as to the existence of “an execution-style killing or a violent torture-murder.” Rather, such facts could only be shown by the evidence supporting the jury‘s finding that a homicide had occurred.
Our reading of the functional equivalence test—which allows inquiry into evidence necessary to support the jury‘s findings—is faithful both to the erroneous presumption cases and to Sullivan. Following the erroneous presumption cases, we examine the evidence in the record. However, our analysis follows Sullivan‘s admonition not to speculate on what the jury would have found had it been correctly instructed. By examining the evidence necessary to support the jury‘s findings, we are not weighing any evidence, as Judge Stapleton suggests, but simply using
Furthermore, our analysis furthers the purpose of harmless error analysis:
The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant‘s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.
Rose, 478 U.S. at 577, 106 S.Ct. at 3105-06 (citations omitted). In this case, the jury was instructed that, to convict, it had to find three related predicate offenses and that it had to unanimously find that every predicate offense occurred. All of the evidence establishing the predicate offenses showed that they were related. Importantly, Edmonds never even suggested that the offenses were unrelated, and nothing in the trial record suggests such a conclusion. In such a case, it requires no speculation to see that the error did not affect the verdict.23
Accordingly, we hold that the error was harmless beyond a reasonable doubt, Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The judgment of the district court will therefore be affirmed.
STAPLETON, Circuit Judge, concurring in part and dissenting in part:
I join in parts I and II of the court‘s opinion. I am unable to join part III.
The court finds that the district court‘s refusal to require unanimity was harmless error. This is justified, it maintains, because the evidence concerning the nine narcotics violations which the jury found to have occurred could lead a rational jury to no conclusion other than that all were related. While this view has undeniable surface appeal, it is irreconcilably at odds with the teaching of Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Because of Sullivan, I would reverse and remand for a new trial on the CCE count.
A judge cannot, consistent with the Sixth Amendment right to a jury trial, direct a verdict for the prosecution no matter how overwhelming the evidence of guilt may be. This Sixth Amendment right “includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty.’ ” Id. at 277, 113 S.Ct. at 2080. Moreover, the due process clause requires that this finding of guilt be a finding beyond a reasonable doubt. As the Court held in Sullivan, this means that the jury must find each of the essential elements of crime charged beyond a reasonable doubt. If the court‘s instructions to the jury communicate a standard for the government‘s burden of proof less than the beyond a reasonable doubt one, there can be “no jury verdict of guilty-beyond-a-reasonable-doubt.” If there is no such verdict, “[t]here is no object, so to speak, upon which harmless-error scrutiny can operate,” id. at 280, 113 S.Ct. at 2082, and the defect cannot be cured by a judge‘s finding that “in a trial ... without the error, a guilty verdict would surely have been rendered.” Id. at 279, 113 S.Ct. at 2081. As my colleagues purport to recognize, “to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.” Id.
The Sixth Amendment right to a jury trial includes the right to a unanimous jury agreement on each element of the offense charged, as well as an agreement on each such element beyond a reasonable doubt. United States v. Beros, 833 F.2d 455 (3d Cir.1987). When this fundamental principle is added to the holding in Sullivan, it follows that the constitutionally required jury verdict is missing when the jury is not instructed that its verdict on each element of the offense must be unanimous. In such a case, “[t]here is no object, so to speak, upon which harmless error scrutiny can operate. The most an appellate court can conclude is that a [unani-
This appellate court has determined today only that, given the evidence at trial, a jury properly charged would surely have unanimously agreed beyond a reasonable doubt that all of Edmonds’ narcotics violations were related to one another. Under Sullivan, this is not a sufficient basis for affirming his CCE conviction.
The court distinguishes Sullivan on the ground that Edmonds’ case is more like a line of mandatory presumption cases which the Supreme Court distinguished in Sullivan. Id. at 280-81, 113 S.Ct. at 2082-83. In cases like Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) and Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989), the Court indicated that harmless error analysis is permissible in some cases where the jury has been instructed to apply mandatory presumptions that unconstitutionally relieved the state of its burden of proving all elements of the offense beyond a reasonable doubt. As the Court explained in Sullivan, the Sixth Amendment right to a jury trial is not violated by a harmless error analysis in a mandatory presumption case if the predicate facts that the jury had to find before the presumption was triggered were “so closely related to the ultimate fact to be presumed that no rational jury could find those [predicate] facts without also finding that ultimate fact, making those findings [the] functional equivalent [of] the element required to be presumed.” Sullivan at 281, 113 S.Ct. at 2083 (quoting from Carella, 491 U.S. at 271, 109 S.Ct. at 2423-24).24
This case is not like Rose and Carella, however, and is indistinguishable from Sullivan. In Rose and Carella, the court could point to an actual finding made by the jury that was the functional equivalent of the element that the jury was required to find in order to support a guilty verdict. In this case, the court has not, and cannot, point to such a jury finding.
In Rose, for example, the jury was instructed in such a manner that the court knew the jury had found either the malice required for a murder conviction or predicate acts on the part of the defendant from which malice was necessarily inferred. As the Court in Rose noted, “[w]hen a jury is instructed to presume malice from predicate facts, it must still find the existence of those facts beyond a reasonable doubt,” 478 U.S. at 580, 106 S.Ct. at 3107, and when that finding is the functional equivalent of the element required, there is an “object, so to speak, upon which harmless error scrutiny can operate.” Sullivan at 280, 113 S.Ct. at 2082. In none of the mandatory presumption cases where the Supreme Court has approved harmless error analysis has the Court relied solely on the strength of the trial evidence.
In Edmonds’ case, the only unanimous jury finding to which this court can point is a finding that Edmonds committed nine narcotics felonies. That finding is not the functional equivalent of a finding that those felonies were related. It is as consistent with those felonies being unrelated as it is with their being related. My colleagues have not concluded that relatedness necessarily follows from a fact the jury found; they have, rather, concluded that relatedness necessarily follows from the evidence tendered by the government at trial.23
Their conclusion does not alter the critical fact under Sullivan—
ALITO, Circuit Judge, concurring in part and dissenting in part.
I agree with the court that the defendant‘s conviction should be affirmed, but I cannot accept the conclusion that the trial judge erred in refusing to instruct the members of the jury that they were required to agree unanimously with respect to the particular offenses that made up the “continuing series” of violations that were necessary for the defendant‘s conviction under the Continuing Criminal Enterprise (“CCE“) statute,
For these reasons, I concur in the judgment, but I join only part III of the court‘s opinion, which discusses harmless error. I approve this part of the court‘s opinion because, assuming for the sake of argument that the trial judge erred, I agree with the court that the error was harmless. I also join Judge Garth‘s opinion, but I write separately to explain in somewhat different terms why I disagree with the court‘s analysis of the jury-unanimity issue.
I.
I will first address the majority‘s statutory interpretation argument, i.e., its argument that Congress meant to include as part of the CCE statute a special jury-unanimity requirement that is independent of that contained in
A. The pertinent part of the CCE statute,
For purposes of subsection (a) of this section [which sets out penalties], 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—
(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and
(B) from which such person obtains substantial income or resources.
There is nothing in this language or any other portion of the CCE statute that even hints that Congress intended to require jury unanimity with respect to the particular offenses needed to satisfy
C. If this is not enough to refute the majority‘s interpretation, any remaining doubt must vanish when it is noted that Congress has not customarily included special jury-unanimity requirements in federal criminal statutes (other than the few I mentioned earlier that concern capital sentencing procedures). Indeed, I have not found any federal criminal statutes outside the field of capital sentencing that contain special unanimity requirements. If I have overlooked any, I hope that my colleagues in the majority will call them to my attention. But if I am right that Congress, as a uniform or general practice, has not adopted such special unanimity requirements, that practice seems to me to be telling. With no congressional custom of adopting such special unanimity requirements and no hint in the statutory language or legislative history that Congress meant to break new ground and impose such a requirement under
D. The majority claims that its interpretation of
E. The only remaining source of authority invoked by the majority—and thus the sole pillar on which its entire statutory construction argument rests—is its understanding of “general historical tradition in criminal jurisprudence.” Maj. Op. at 818. The majority states:
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.
Id. (emphasis added). The majority cites no authority for this reading of “general historical tradition in criminal jurisprudence,” and I believe that the majority has overstated the principle that can legitimately be drawn from established criminal law precedents. To be sure, our law has traditionally demanded a degree of specificity in criminal prosecutions. Many rules of law, including those governing charging instruments3 and bills of particulars,4 work toward this end. But it is simply not true that the jury is always required to “agree[] on most of the actions engaged in by the defendant.” Maj. Op. at 818. Nor is it true that the prosecution has invariably been required to establish the “specified time and place” where a charged offense occurred.5 Id.
In invoking “general historical tradition in criminal jurisprudence,” the majority relies on the law of murder, but I believe that this body of law exposes the weakness of the majority‘s analysis. It is not correct, for example, that in a murder case the jury is required to “agree[] on most of the actions engaged in by the defendant.” Maj. Op. at 818. Both the holding and the controlling opinions in Schad v. Arizona, 501 U.S. 624 (1991), illustrate this point.
Under the holding of Schad, which followed traditional practice (see id. at 640-42 (opinion of Souter, J.); id. at 648-50 (opinion of Scalia, J.)), a defendant may be convicted of first-degree murder even if some of the jurors base their guilty votes on the theory of felony-murder and others do not. Suppose, therefore, that the evidence in a murder case shows that the victim was driving in a remote area when he picked up the defendant, who was hitchhiking. Suppose that the victim‘s body is later found at the bottom of a cliff,
Moreover, even if the jurors in a murder case all agree that the defendant intentionally killed the victim, both Justice Souter‘s and Justice Scalia‘s opinions in Schad make clear that the jurors need not agree on how the killing was accomplished. Justice Souter discussed Andersen v. United States, 170 U.S. 481 (1898), in which the Court upheld a murder conviction despite the fact that the indictment did not specify whether the death was caused by shooting or drowning. See 501 U.S. at 631. He then observed:
We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission.... In these cases, as in litigation generally, “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line....”
501 U.S. at 631-32 (citation omitted). Justice Scalia made the same point by means of a hypothetical. He wrote:
When a woman‘s charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her.
501 U.S. at 650 (Scalia, J., concurring). Thus, it seems clear to me that the majority is wrong in saying that under traditional practice the jury in a murder case must always “agree[] on most of the actions engaged in by the defendant.” Maj. Op. at 820.
Nor is the prosecution in a murder case always required to nail down the “specified time” or “specified ... place” of the killing. To take another hypothetical case, suppose that a motorist is seen picking up a hitchhiker at one end of a state and that the hitchhiker is stopped many days later at the other end of the state driving the motorist‘s car. Suppose also that blood stains are found in the trunk, that the motorist‘s bullet-ridden body is discovered in a wooded area in another part of the state and that other evidence tying the hitchhiker to the crime is gathered. Would anybody suggest that the hitchhiker cannot be convicted unless the prosecution can prove specifically where and when the killing occurred?
In short, I do not think that it is possible to distill from “general historical tradition in criminal jurisprudence” the principle that the jury must always “agree[] on most of the actions engaged in by the defendant” or the principle that the prosecution must always prove that a charged offense occurred at a specific place or time. Instead, I think that our law has traditionally allowed some flexibility with respect to these matters, and thus I do not discern any traditional practice that provides appreciable support for the majority‘s interpretation of
II.
A. Because I reject the majority‘s statutory interpretation argument, I now turn to the question whether the Constitution obligated the trial judge in this case to instruct the members of the jury that they were
B. The Sixth Amendment guarantees the right to a “trial by jury” in “all criminal prosecutions” in federal court. In Johnson v. Louisiana, 406 U.S. 356 (1972), and Apodaca v. Oregon, 406 U.S. 404 (1972), five Justices concluded that this right includes the right to a unanimous verdict. Justice Powell, who cast the deciding vote, reasoned as follows:
[I]n amending the Constitution to guarantee the right to jury trial, the framers desired to preserve the jury safeguard as it was known to them at common law. At the time the Bill of Rights was adopted, unanimity had long been established as one of the attributes of a jury conviction at common law. It therefore seems to me, in accord both with history and precedent, that the Sixth Amendment requires a unanimous jury verdict to convict in a federal criminal trial.
Johnson v. Louisiana, 406 U.S. 366, 371 (1972) (Opinion of Powell, J.) (emphasis added) (footnote omitted). As the highlighted portion of Justice Powell‘s opinion states, the common law and American practice at the time of the adoption of the Bill of Rights required a unanimous jury verdict—and, as far as I am aware, nothing more.7 And subject to the proviso discussed in part II C of this opinion, I do not think that the Sixth Amendment goes any further. Thus, in my view, the Sixth Amendment requires that jurors be instruct
Under this approach, it is apparent that the breadth of the legislative definition of an offense substantially affects the degree of unanimity that is required. The more narrowly an offense is defined, the less room there will be for jurors to disagree on subsidiary factual matters. And the more broadly an offense is defined, the more room there will be for such disagreement. Suppose that State A defines first-degree murder as knowingly or purposely causing the death of another person. Suppose that State B defines first-degree murder as knowingly or purposely causing the death of another human being or causing the death of another human during the commission of a felony. The degree of unanimity required in State A is greater than in State B because in the latter a defendant could be convicted of first-degree murder even if some jurors think that he caused the death knowingly or purposely and others think he merely caused the death during the commission of a felony. But as Schad instructs, the scheme adopted by State B does not offend the Constitution.
C. I now come to the proviso to which I previously referred. Because of the relationship noted above between the breadth of the legislative definition of an offense and the degree of jury-unanimity needed to produce a unanimous verdict, Congress could circumvent the Sixth Amendment‘s guarantee of a unanimous verdict by lumping together incongruous elements under the rubric of a single offense. I do not think that the Sixth Amendment would tolerate such a stratagem. If a new offense contained a combination of elements having no rational basis other than the evasion of the Sixth Amendment‘s jury unanimity requirement, that combination would be unconstitutional.
In Schad, both Justice Souter‘s and Justice Scalia‘s opinions pointed out that there could be extreme circumstances in which the Constitution would require jury-unanimity with respect to something other than the jury‘s general verdict of guilty. Justice Souter‘s opinion recognized that the meaning of the right to a unanimous verdict in a particular case depends on the legislative definition of the offense with which the defendant is charged, and he noted that this right could be undermined if a legislative body simply lumped together incongruous elements under the rubric of a single offense. 501 U.S. at 630-33. Concluding that the Constitution would not permit such a ploy, he observed that “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, for example, would suffice for conviction.” Id. at 633 (footnote omitted).
Justice Souter stressed, however, that considerable deference should be given to a legislative judgment concerning the definition of a criminal offense—or, in other words, to a legislative judgment that a particular combination of elements should be regarded as constituting a single rather than multiple offenses. See id. at 637-40. He spoke of “a threshold presumption of legislative competence,” the importance of “judicial restraint,” and the need to avoid “judicial second-guessing.” Id. at 637-38. Emphasizing that a legislature‘s “definition of the elements of [an] offense is usually dispositive,” he nevertheless made clear that “there are obviously constitutional limits beyond which [a legislative body] may not go.” Id. at 639 (citation omitted). In deciding whether these limits have been violated, he concluded, both “history and widely shared practices” are instructive. Id. at 640. He also
Justice Scalia‘s concurrence set out a similar but not identical analysis. He noted that “one can conceive of novel ‘umbrella’ crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process.” Id. at 650 (Scalia, J., concurring). In a somewhat similar vein, he later added that “[w]e would not permit ... an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday.” Id. at 651. Applying his view that the Due Process Clause of the Fourteenth Amendment does not proscribe deeply rooted historical practices, he concluded that Arizona‘s definition of murder, which represented the historical norm, did not violate due process. Id. at 651. Since Schad grew out of a state prosecution, both these opinions discussed the requirements of the Due Process Clause of the Fourteenth Amendment, rather than the Sixth Amendment, but I believe that it is appropriate to translate their discussion into Sixth Amendment terms.
Under either Justice Souter‘s or Justice Scalia‘s analysis, Congress‘s definition of a “continuing criminal enterprise” does not, in my opinion, exceed the broad limits allowed for legislative judgment in determining whether particular elements should be combined to form a single offense. I readily acknowledge that the CCE statute, unlike the Arizona murder statute at issue in Schad, is not based on a long and widely accepted model but instead, as I discuss below, represents a innovative approach developed by Congress some 25 years ago. In light of these origins, the CCE statute cannot claim the protection from constitutional challenge that a more traditional criminal statute might enjoy, but this does not mean that the CCE statute is automatically suspect. As patterns of crime change, legislative bodies must have the freedom, within constitutional limits, to devise new ways of responding to those changes, including the creation of new crimes that are not closely modelled on any common law antecedents.
Although the CCE statute does not enjoy the protection of ancient lineage, I believe that both its structure and background support its constitutionality and comfortably distinguish it from the examples of impermissible statutes that were cited in the Schad plurality and concurring opinions. Justice Souter‘s example—an offense called “Crime” that would require proof that the defendant committed at least one act of “embezzlement, reckless driving, murder, burglary, tax evasion, or littering” (501 U.S. at 633)—seems to represent a combination of elements having no rational basis other than the circumvention of otherwise applicable jury-unanimity requirements. No element other than proof of one of the predicate offense appears to be necessary for conviction, and the predicate offenses are widely dissimilar. It is hard to imagine what legitimate basis there could be for such a combination of elements.
The hypothetical laws discussed by Justice Scalia seem to me to have similar flaws. What legitimate basis could there be for creating a crime “consisting of either robbery or failure to file a tax return” or permitting a defendant to be prosecuted for the offense of assaulting “either X on Tuesday or Y on Wednesday“? See 501 U.S. at 651 (Scalia, J., concurring).
The CCE statute differs sharply from these monstrosities. For one thing, there are important structural differences. The CCE statute sets out several elements in addition to the commission of the predicate offenses that must be proven in every case. Specifically, it must be shown, not only that the defendant committed a “continuing series of violations,” but that (a) he undertook this activity “in concert with five or more other persons,” (b) that “with respect to [those persons] he occupie[d] a position of organizer, a supervisory position, or any other position of management,” and (c) that he “obtain[ed] substantial income or resources”
The background of the CCE statute fortifies this view. The CCE statute was enacted as part of the
To my mind, this background must be taken into account in considering whether Congress exceeded constitutional bounds by creating the offense set out in
Based on the structure and background of the CCE statute, I am persuaded that the statute does not contravene the Sixth Amendment‘s jury unanimity requirement but instead constitutes a permissible exercise of Congress‘s broad power to define the scope of federal criminal offenses.
III.
For these reasons, I do not think that the trial judge in this case erred in refusing to instruct the members of the jury that they were required to agree unanimously on the predicate offenses committed by the defendant. If the trial judge had erred, however, I think that the error would be harmless for the reasons explained in part III of the opinion of the court.
GARTH, Circuit Judge, concurring in part and dissenting in part.
While I agree that Edmonds’ conviction must be sustained, I cannot agree that any error was committed by the district court. Because there was no error, it is a needless exercise to address whether that error was harmless.
Congress has never required a unanimous finding for each and every component of the Continuing Criminal Enterprise (“CCE“) statute,
I.
In this case, we have been asked to decide whether the identities of the predicate acts constituting the “continuing series of violations” prong of the CCE statute are so essential to proof of the CCE offense that the identity of each predicate act must be agreed upon unanimously by the jury; or whether the identities of the predicate acts are merely alternative means of committing the same CCE offense or preliminary facts required to establish the offense, such that unanimity is not required under the Supreme Court‘s decision in Schad v. Arizona, 501 U.S. 624 (1991).
A.
In order for the government to make out the offense of conducting a continuing criminal enterprise, as defined by
- the defendant committed a drug-related felony,
21 U.S.C. § 848(c)(1) ; - the felony was “a part of a continuing series of violations” of the drug laws;
21 U.S.C. § 848(c)(2) (emphasis added); - the defendant undertook that drug-related felony “in concert with five or more other persons with respect to whom [the defendant] occupied a position of organizer, a supervisory position, or any other position of management,”
21 U.S.C. § 848(c)(2)(A) ; and - the defendant obtained substantial income or resources from these violations.
21 U.S.C. § 848(c)(2)(B) .
The district court had instructed the jury that “[a] continuing series of violations requires proof beyond a reasonable doubt that three or more violations occurred and that they, those three or more, were related to each other.” App. 577. The district court also instructed the jury that “[y]ou 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.” App. 581. The only issue before us on appeal is whether the district court erred in failing to instruct the jury that in order to convict Edmonds of engaging in a CCE, it must unanimously agree as to which three predicate acts constituted the “continuing series of violations” under the CCE statute.
Nowhere in the language or legislative history of the CCE statute does Congress evince a concern regarding the particular nature or identity of the predicate acts constituting the “continuing series of violations.” Aside from requiring that the “violations” be drug-related offenses, Congress has not imposed limits on what predicate acts constitute a “violation.” The courts, at liberty to define this statute, have generally held that “violations” refer broadly to offenses, including unindicted offenses, whether or not they led to convictions. See United States v. Rosenthal, 793 F.2d 1214, 1226-27 (11th Cir. 1986), cert. denied, 480 U.S. 919 (1987); United States v. Markowski, 772 F.2d 358, 361-62 (7th Cir. 1985), cert. denied, 475 U.S. 1018 (1986). Congress has not even defined the number of predicate acts required to form a “series.” Thus, while some courts of appeal have required three predicate acts, see United States v. Echeverri, 854 F.2d 638, 642 (3d Cir. 1988); Rosenthal, 793 F.2d at 1226, another court has required only two. See United States v. Canino, 949 F.2d 928, 947 (7th Cir. 1991), cert. denied, 504 U.S. 910 (1992).
Indeed, the statute itself does not require that the violations be “related,” although the courts have uniformly read such a “relatedness” requirement into the definition of “continuing series.” See e.g. United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1025 n.3 (10th Cir. 1996).
B.
The broadness with which Congress defined a “continuing series of violations” indicates that the exact identities of the predicate offenses necessary for a jury to find a “continuing series” for purposes of the CCE statute are not essential facts constituting an element of the offense. Rather, the predicate offenses are no more than alternative means of, or preliminary facts, establishing the element of “continuing series.” In Schad v. Arizona, 501 U.S. 624, 633 (1991), the Supreme Court held that facts that constitute merely alternative means of, or preliminary
In Schad, a plurality of the Supreme Court held that the jury was not required to unanimously agree on whether the defendant Schad had committed premeditated murder or felony-murder in order to convict him under the Arizona first-degree murder statute. That statute provided that first-degree murder was only one crime, regardless of whether it occurred as a premeditated murder or a felony murder. The Supreme Court stated that:
Our cases reflect a long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed.... We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictment were required to specify one alone. In these cases, as in litigation generally, “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.”
Id. at 631-32 (quotation omitted). Thus the Court rejected requiring jury unanimity on the “mere means of satisfying a single element of an offense,” noting that such a requirement would lead to “absurd results.” Id. at 636 n.6.
The Schad Court recognized that there were due process limits to the state‘s authority to define what facts constitute merely alternative means of committing a single offense. The Court stated that:
[N]othing 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, for example, would suffice for conviction.
Schad, 501 U.S. at 633. There comes a point, the Court recognized, when “differences between means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating what the Constitution requires to be treated as separate offenses.” Schad, 501 U.S. at 633. In the case of the Arizona murder statute, the Court held that due process was not violated because the state legislature had determined that premeditated murder was “morally equivalent” to felony murder. Id. at 644.
In the present case, the CCE statute clearly provides for conviction for engaging in a CCE regardless of the identity, level of seriousness, or differing penalties of the predicate acts constituting the “continuing series of violations.” Because any grouping of multiple related drug offenses will satisfy this element of the statute, and because different groupings of predicate acts do not define separate crimes, the identities of the specific predicate acts constituting the “continuing series” do not rise to facts so “indispensable to proof of a given offense,” Schad, 501 U.S. at 633, that they must be agreed to unanimously by the jury. If we were to hold otherwise, we would in effect be establishing a rule requiring jury unanimity as to every predicate fact underlying the second prong of the CCE statute. Indeed, the majority opinion has furnished us with no explanation as to how its analysis can result in a conclusion that Congress intended just this one prong of a four-prong statute to require jury unanimity as to the identity of the three predicate acts and not require jury unanimity as to the factual underpinnings of the other components of the CCE.
Certainly, the majority opinion has furnished us with no clue as to why just this requirement of the CCE statute (“continuing series of violations“) must be distinguished from the other three requirements of the statute.
While the first CCE prong (commission of a drug-related felony) requires only a single determination, the other three CCE prongs cannot be satisfied by a single determination and they therefore potentially raise unanimity issues. If the majority‘s analysis is cor
Similarly, and just as illogically under the majority‘s analysis, with respect to the CCE requirement that a defendant must have derived “substantial income or resources” from his drug violations, it would appear that the majority would also require unanimity as to the factual findings and identities of such income or resources. Would the jury have to identify the cash, property, airplanes, automobiles (Mercedes, Lexus, BMW), yachts, etc. and agree unanimously on the particular resource which the defendant received?
Such a construction—singling out and selecting one of four statutory requirements and interpreting an unarticulated congressional intent requiring unanimity only with respect to that one prong of a four-prong statute—is not supported by any precedent, any logic, or any reason. Nor can the majority‘s unsupported argument, that such a construction is mandated, supply that authority. In sum, “there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” Schad, 501 U.S. at 632 (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J., concurring)).
C.
Not requiring specific unanimity on the predicate acts constituting the “continuing series of violations” is consistent with our holding in United States v. Jackson, 879 F.2d 85 (3d Cir. 1989), where we held that there need not be unanimous agreement among the jury as to the identities of the five or more persons making up the group of underlings supervised, organized, or managed by the defendant for purposes of the CCE statute.1
The majority attempts to distinguish Jackson by arguing that the five-person requirement, unlike the continuing series requirement, has a “historical analogue in the law of conspiracy, which generally has not required the jury to unanimously agree on the identity of the defendant‘s co-conspirators.” (Maj. Op. at 822). The applicability of the law of conspiracy to substantive CCE offenses is open to question. Moreover, even if the law of conspiracy were applicable here, it is clear that the continuing series requirement enjoys as much of a “historical analogue” as does the five-person requirement. Notably, in the case of a multiple-object conspiracy, a jury need not unanimously agree as to which object of the various charged objects forms the basis for their conviction of a defendant for conspiracy. See, e.g., United States v. Linn, 31 F.3d 987, 991 (10th Cir. 1994); United States v. Peral-Cota, No. 92-10118, 1993 WL 68934, at *4 (9th Cir. Mar. 11, 1993).2
The majority also argues that Jackson is distinguishable because “acting in concert with one group of five people is no more or less blameworthy than acting in concert with
D.
The district court‘s general unanimity instruction sufficiently ensured that the jury would unanimously agree that a “continuing series of violations,” that is, three or more related drug offenses, occurred. Thus, I find that the district court committed no error when it did not provide a specific unanimity instruction.
II.
Today, the majority purports to “affirm” or “reaffirm” our decision in United States v. Echeverri, 854 F.2d 638 (3d Cir. 1988). The majority, conceding that neither the language nor legislative history of the CCE statute requires specific unanimity, strains to justify its position by resorting to “background interpretive principles,” including the “tradition in criminal jurisprudence,” constitutional considerations, and the rule of lenity. In my view, these “background interpretive principles” cannot support the ambitious proposition for which they are invoked by the majority.
A.
First, the majority argues that under the “general historical tradition in criminal jurisprudence,” “[c]riminal trials have long ensured substantial jury agreement as to the facts establishing the offense.” (Maj. Op. at 818). In so arguing, the majority glosses over and fails to answer the central dilemma in the case: how we are to determine which facts require or do not require unanimous jury agreement.
Clearly, not all of the facts underlying a verdict-require jury unanimity. See Schad, supra. In failing to define what “facts” require jury unanimity or not, the majority‘s argument does not supply a satisfactory, authoritative, or logical answer as to whether the identities of the three predicate acts constituting a “continuing series of violations” for purposes of CCE require jury unanimity.
B.
Next, the majority argues that “[t]here is a real possibility that the CCE statute would
In Schad, the Supreme Court held that the Due Process Clause was not violated when the defendant was convicted of first-degree murder despite the lack of assurance that the jury unanimously agreed as to whether the defendant had committed premeditated murder or felony murder. The majority argues that this result was defensible in Schad only because premeditated murder and felony murder are of “equivalent blameworthiness or culpability” (Maj. Op. at 820 (quoting Schad, 501 U.S. at 643)); and that in the present case, the three predicate offenses may vary greatly in degrees of seriousness which would cause them to not be equivalently blameworthy.
This argument lacks any basis in logic. To the extent that the CCE statute allows conviction for the same offense based on any grouping of multiple related predicate acts, despite the fact that each act may carry very different penalties, this is a decision that has already been made by Congress. In other words, Congress has already determined that regardless of the exact identity or seriousness of the predicate acts constituting the “continuing series,” a defendant is equally blameworthy so long as he has engaged in multiple related drug-related offenses. As the Supreme Court noted in Schad, “the ... legislature‘s definition of the elements of the offense is usually dispositive.” 501 U.S. at 639.
A legislature‘s definition of the elements of an crime does not offend constitutional strictures where such definition is supported by “history” and “shared practice.” See Schad, 501 U.S. at 640. As discussed earlier, Congress‘s decision not to require unanimity on the identities of the predicate acts for a CCE offense finds a historical analogue in the well established law that where an indictment alleges multiple acts charged in the conjunctive, the jury need only be given a general unanimity jury instruction, and a general guilty verdict suffices to convict the defendant. See, e.g., United States v. Linn, 31 F.3d 987, 991 (10th Cir. 1994); United States v. Peral-Cota, No. 92-10118, 1993 WL 68934, at *4 (9th Cir. Mar. 11, 1993).
Moreover, a specific unanimity instruction to the jury would do nothing to change the fact that a defendant could be convicted for CCE regardless of whether the jury found that he engaged in a series of first-time simple possession offenses or whether the jury found that he engaged in a series of more serious crimes such as distributing large quantities of drugs.4
Accordingly, because Congress has already determined that any “continuing series of [drug] violations,” regardless of the identity or seriousness of those drug violations, is equally blameworthy for purposes of CCE, we defer to Congress‘s determination as the Court deferred to the Arizona legislature‘s intent in Schad. The majority‘s argument that the predicate acts making up such a “continuing series” may vary in degrees of seriousness is irrelevant, and Edmonds’ conviction for CCE, even if based on less than unanimous jury agreement as to which three predicate acts constituted the “series,” does not violate due process.5
C.
Finally, the majority also argues that requiring specific unanimity is “counseled” by the rule of lenity.
Moreover, as the majority acknowledges, there is no authority for applying the rule of lenity to the issue posed in the present case. Nevertheless, the majority argues that the rule of lenity should apply here because it has been applied to the “conceptually analogous situation: whether a single criminal act constitutes one or more violations of a statute.” (Maj. Op. at 820-21). I fail to see, however, how the issue of whether a single criminal act constitutes one or more violations of a statute is at all analogous to the present issue of whether the facts sought to be proven at trial are or are not so essential to proof of an element of the offense such that jury unanimity is or is not required.
The majority also invokes a number of cases for the proposition that the rule of lenity requires fair warning as to the harshness of criminal penalties for a given offense. From there, the majority makes the tenuous connection that because procedural protections affect the likelihood that a penalty will be imposed, that “[a]t some point, differences in procedural protections become as significant as different penalties, and the need for fair warning just as critical.” (Maj. Op. at 821-22).6 This argument is forced and fails to persuade. The “procedural protections” at trial may affect the likelihood that a defendant will be convicted at trial (a jury question), but this is a separate issue from what penalties will be imposed (a statutory and/or judicial matter).
III.
Because Congress has not required specific unanimity with respect to any of the predicate factual findings underlying the CCE statute, and because there is no basis for our requiring unanimity as to the identities of the predicate acts when we do not require unanimity as to the identities of the five supervised individuals, or as to the identities of the defendant‘s income and resources; I would overrule Echeverri. Instead, I would hold that, absent Congressional intent requiring jury unanimity as to the identity of predicate factual findings, a specific unanimity instruction on a statute‘s predicate findings is not required.
Because there was no error committed by the district court, I would not reach the issue of harmless error. Although I concur in the ultimate result reached by the majority in sustaining Edmonds’ conviction, I respectfully dissent from the majority‘s holding that requires unanimity as to the identities of the predicate acts constituting the “continuing series” prong of the CCE statute.
SLOVITER, C.J., and GREENBERG, NYGAARD, ALITO and ROTH, JJ., join in this concurring and dissenting opinion.
Mary Ruth McCARTHY; Guy Colville; Edward Ormsby; Carmen Tomasetti; Joseph Hoffman, Appellants,
v.
RECORDEX SERVICE, INC.; Copyright, Inc.; Smart Corp., National Headquarters Medical Records Copying; Medfax Incorporated; Hospital Correspondence Copiers; Mercy Health Corporation of Southeastern Pennsylvania, Misericordia Hospital Division; Methodist Hospital; The Graduate Hospital; Hahnemann University Hospital; The Lower Bucks Hospital.
No. 95-1005.
United States Court of Appeals,
Third Circuit.
Argued Jan. 22, 1996.
Decided April 4, 1996.
Notes
The Sixth Amendment expressly guarantees the right to “trial by jury” and has been held to require a unanimous verdict in a federal criminal prosecution. See 816, infra. The Due Process Clause of the Fifth Amendment, of course, provides general protection for “liberty.” “Where a particular amendment ‘provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.‘” Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). See also id. at 275 (Scalia, J., concurring); cf. id. at 281 (Ginsburg, J., concurring); id. at 286-91 (Kennedy, J., concurring); id. at 292-308 (Souter, J., concurring). Furthermore, the proposition that the Due Process Clause of the Fifth Amendment guarantees jury unanimity to a greater degree than does the Sixth Amendment seems to be inconsistent with the Supreme Court decisions holding that the Due Process Clause of the Fourteenth Amendment requires less jury unanimity than does the Sixth Amendment. See Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972). Presumably, the “procedural protection” that the majority has in mind is a specific unanimity instruction to the jury.