Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
4-4-1996
United States v. Edmonds
Precedential or Non-Precedential:
Docket 93-1890
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
NO. 93-1890
___________
UNITED STATES OF AMERICA
v.
THEODORE EDMONDS,
Appellant
___________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Criminal No. 92-cr-00504-1)
___________________________________
Argued: October 24, 1994
Before: STAPLETON, HUTCHINSON, and GARTH,
Circuit Judges.
(Opinion Filed: April 18, 1995; vacated June 29, 1995)
____________________________________
Reargued In Banc: October 25, 1995
Before: SLOVITER, Chief Judge, BECKER, STAPLETON,
MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO,
ROTH, LEWIS, McKEE, SAROKIN, and GARTH
Circuit Judges.
_________________________________________
(Filed April 4, 1996)
MICHAEL R. STILES, ESQUIRE (ARGUED)
United States Attorney
WALTER S. BATTY, JR., ESQUIRE
Assistant United States Attorney
JEFFREY W. WHITT, ESQUIRE
Assistant United States Attorney
VALLI F. BALDASSANO, ESQUIRE
Assistant United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
1
Counsel for Appellee
DOMNICK J. SORISE, ESQUIRE (ARGUED)
33830 Harper
Clinton Township, MI 48035
Counsel for Appellant
_______________________
OPINION OF THE COURT
_______________________
BECKER, Circuit Judge.
A federal jury convicted appellant Theodore Edmonds of
violating the Continuing Criminal Enterprise statute ("CCE"), 21
U.S.C. § 848, which makes it a crime to organize, supervise, or
manage five or more persons in a "continuing series of
violations" of the federal narcotics laws. Edmonds argues that
the district court erred in failing to instruct the jurors that,
in order to convict, they must agree unanimously on which
violations -- of the eight alleged -- constituted the three
related violations necessary to establish a "continuing series."
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
1
This may be one of this court's last "in banc" opinions. Until
recently, we have eschewed the more common "en banc" spelling in
favor of the latin form. However, a proposed amendment to the
Federal Rules of Appellate Procedure adopts the "en banc"
spelling. See Fed R. App. P. 35 (Preliminary Draft of Proposed
Amendment September 1995).
2
resolution, see, e.g., United States v. Canino, 949 F.2d 928 (7th
Cir. 1991), cert. denied, 504 U.S. 910, and cert. denied sub nom.
Flynn v. United States, 503 U.S. 996 (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, 113 S. Ct. 2078 (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 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. However, the evidence that the jury must have credited
to find Edmonds guilty of the predicate violations unequivocally
3
established that all charged violations were related. In such
circumstances, no rational jury could unanimously find Edmonds
guilty of the predicate offenses without unanimously finding that
the offenses were related to each other. We thus affirm
Edmonds's conviction.
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 21 U.S.C. § 846; distribution of
heroin and aiding and abetting distribution in violation of 21
U.S.C. §841(a)(1); two counts of distribution of cocaine and
aiding and abetting distribution in violation of 21 U.S.C.
§841(a)(1); three counts of unlawful use of a communications
facility in violation of 21 U.S.C. § 243(b); and four counts of
money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) &
4
(2). In addition, the indictment charged Edmonds with engaging
in a CCE in violation of 21 U.S.C. § 848. The CCE count
identified eight predicate offenses: the conspiracy count, the
three distribution counts, the three communications facility
counts, and one of the money laundering counts.2
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.
App. 577. 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. See, e.g., App. 581 ("You are
asked to deliberate with a view towards reaching a unanimous
decision with respect to each count and each defendant charged
2
The indictment's inclusion of the money laundering offense, 18
U.S.C. § 1956, as a CCE predicate offense appears to be in error.
See 21 U.S.C. § 848(c) (defining CCE predicate offenses as
violations of U.S. Code Title 21, Chapter 13, subchapter I or
II). However, Edmonds has not raised this issue, and we thus deem
it waived.
5
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 to each other. For example, six jurors may
have felt that violations A,B, & C (but no others) were related,
and the other six jurors may have concluded that violations D, E,
& F (but no others) were related. See Edmonds, 52 F.3d at 1241.
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
6
Sullivan v. Louisiana, 113 S. Ct. 2078 (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
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 (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
3
In Sullivan, the trial judge gave a definition of reasonable
doubt virtually identical to one held unconstitutional in Cage v.
Louisiana, 498 U.S. 39, 111 (1990) (per curiam).
7
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
4
In relevant part, 21 U.S.C. § 848 states:
[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.
21 U.S.C. § 848(c).
8
Cir. 1989), cert. denied, 497 U.S. 1003 (1990); United States v.
Young, 745 F.2d 733, 747 (2d Cir. 1984), cert. denied sub nom.
Myers v. United States, 470 U.S. 1084 (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, and cert. denied sub nom. Manns v. United States, 498 U.S.
904 (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 that the same three related violations
occurred. Although it is well settled that a defendant in a
federal criminal trial has a constitutional right to a unanimous
verdict, see, e.g., Andres v. United States, 333 U.S. 740, 748-49
(1948); Patton v. United States, 281 U.S. 276, 288-90 (1930); see
also Fed. R. Crim. P. 31(a), the level of factual specificity on
which the jury must be unanimous is far from clear. In Schad v.
Arizona, 501 U.S. 624 (1991), a plurality of the Supreme Court
shed some light on this question. Schad indicates that the scope
of jury unanimity is primarily a question of legislative intent,
although due process limits the legislature's definitional power.
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
9
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 (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
required? Second, if the legislature intended the alternative
routes to be mere means of violating a single statute, is the
statute's definition of the crime unconstitutional under the Due
Process Clause?
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
10
. . . in the perpetration of, or attempt to perpetrate, . . .
robbery." Id. at 628 (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 (plurality opinion) (quoting State v. Schad, 788 P.2d 1162,
1168 (Ariz. 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 (plurality opinion).5 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
5
Justice Scalia joined part of Justice Souter's opinion, not
relevant to this case, dealing with the right to have the jury
instructed on a lesser included offense in capital cases.
11
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. Thus, it
was unnecessary to decide whether a criminal defendant has a
right to a unanimous verdict in a state capital case.6
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 (plurality opinion); see also id.
at 650-52 (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
6
Although the Sixth Amendment requires a unanimous verdict in
federal criminal trials, it does not so require in state trials.
See Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon,
406 U.S. 404 (1972). In Schad, Schad argued that the Sixth,
Eighth, and Fourteenth Amendments require a unanimous jury in
state capital cases. As mentioned, the Court did not reach this
question.
12
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 (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. 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 (Scalia, J., concurring in the
13
judgment). Because of the ample historical evidence cited by the
plurality, Justice Scalia agreed with its judgment. Id. at 651.
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 (1970), which requires "proof
beyond a reasonable 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
(White, J., dissenting).
B. The Analysis Applied to the CCE Statute
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, 21 U.S.C. § 848
provides:
[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 --
21 U.S.C. § 848(c). In the language of Schad, the question is
whether the menu of predicate violations specified by subchapters
14
I and II are different "means" or different "offenses."7 In
other words, do the provisions represent various ways to commit
the CCE crime, like shooting, drowning, etc. for a murder
statute? Or do they represent different crimes themselves, such
that the jury must agree which particular related violations were
committed?8
7
Our inquiry is not, as Judge Alito suggests, whether Congress
intended to include "a special jury-unanimity requirement."
Rather, we must determine, as we do with all statutes, what level
of unanimity Congress intended. In Schad's terms, the question
is whether Congress intended a given fact to be an "element."
When a legislature enacts a statute, the legislature determines
that certain facts are "elements," i.e., that they are
"indispensable to proof of a given offense." Schad, 501 U.S. at
633 (plurality opinion). The characterization of a fact as an
"element" then carries the consequence that the jury must agree
that the fact occurred in order to convict. See, e.g., id. at
639 ("The essence of petitioner's argument is that, despite [the
Arizona Supreme Court's] unitary definition of the offense, each
of these means must be treated as an independent element as to
which the jury must agree . . . .").
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 18 U.S.C. § 1111 without unanimous agreement that someone
was killed. Congress has made the unlawful killing of a human
being an "element" for which unanimity is required. (Of course,
the present inquiry is more difficult than this example, because
we must inquire whether the CCE statute creates more than one
offense, see infra note 8, each with its own elements).
8
The Schad plurality recognized that a single statute offering
alternative routes of violation may create multiple offenses for
which unanimity is required. For example, in rejecting the
dissent's mode of analysis, the plurality stated:
In the dissent's view, whenever a statute lists
alternative means of committing a crime, "the jury
[must] indicate on which of the alternatives it has
based the defendant's guilt," even where there is no
15
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 [18 U.S.C. § 545]
defines two separate types of offenses [because] [t]he first
indication that the statute seeks to create separate
crimes. This approach rests on the erroneous
assumption that any statutory alternatives are ipso
facto independent elements defining independent crimes
under state law, and therefore subject to the axiomatic
principle that the prosecution must prove independently
every element of the crime. In point of fact, . . .
legislatures frequently enumerate alternative means of
committing a crime without intending to define separate
elements or separate crimes. The question whether
statutory alternatives constitute independent elements
of the offense therefore does not, as the dissent would
have it, call for a mere tautology; rather it is a
substantial question of statutory construction.
Schad 501 U.S. at 635-36 (plurality opinion) (footnotes and
citations omitted). The plurality's statement that "legislatures
frequently enumerate alternative means of committing a crime
without intending to define separate elements or separate crimes"
implies that the plurality believes legislatures sometimes do
intend to define separate crimes when they enumerate alternative
ways of committing a crime.
16
paragraph . . . was derived from 19 U.S.C. §1593(a), which in
turn had as its source R.S. § 2865 . . . . [and] [t]he second
paragraph . . . was derived from 19 U.S.C. §1593(b), which in
turn had as its source R.S. § 3082."). Thus, we find the
language of the statute inconclusive.9
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
9
If the correct statutory analysis is used (i.e., whether
Congress intended the different alternatives of violating the CCE
statute to constitute separate "offenses"), Judge Alito's
argument that the CCE statute is unambiguous is not tenable. The
alternatives at issue here -- "violat[ions of] any provision of
this subchapter or subchapter II of this chapter" -- are
themselves defined as separate crimes. It is far from clear
whether Congress intended these alternatives to lose their status
as separate offenses when then they were incorporated by
reference into a new statute.
Judge Alito's dispute with our statutory analysis is really
a dispute over the appropriate default rule for interpreting
congressional silence. He criticizes us for failing to anchor
our analysis in the text or legislative history of the CCE
statute, but he cites no text or legislative history in support
of his view that CCE predicate offenses are not "elements" for
which unanimity is required. The reason for both our omissions
is sound; the statute is simply silent on this issue.
17
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 antisocial 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.10 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.11
10
Arguably, rather than looking to the legislature's intent, it
would be preferable to ask, in the first instance, whether
differences between statutory alternatives are so important that
the lack of jury agreement as to a specific alternative casts too
much doubt on the accuracy of the verdict. See Scott W. Howe,
Jury Fact-Finding in Criminal Cases, 58 Mo. L. Rev. 1 (1993).
Hopefully, the Supreme Court will revisit this question soon.
11
We use the phrase "jury unanimity as to the CCE predicate
offenses" to mean jury agreement on both the identity and
relatedness of the three offenses.
18
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 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. When there is a real
risk that a jury will convict without agreement on a discrete set
of actions, courts have required specific unanimity instructions.
See, e.g., United States v. Holley, 942 F.2d 916, 928-29 (5th
Cir. 1991) (reversing a conviction for perjury because the
district court's instructions allowed the jury to convict without
agreement as to a particular false statement), cert. denied, 114
S. Ct. 77 (1993). In our view, substantial agreement on a
discrete set of actions is essential to ensure that the defendant
is guilty beyond a reasonable doubt of some specific illegal
conduct. See Howe, supra n.10.
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
19
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 (Scalia,
J., concurring in the judgment).12
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
12
Judge Alito challenges our reading of history, arguing that it
is not true (1) that the jury has always been required to
"agree[] on most of the actions engaged in by the defendant"; nor
(2) that the prosecution has always been required to establish
the "specified time and place" where a charged offense occurred.
But this response, which artificially atomizes our position, is
fundamentally flawed. Although each of Judge Alito's
propositions is correct in isolation, the question is whether
convictions have been allowed to stand where the jury disagrees
on both (1) most of the defendant's actions; and (2) the time and
place the crime occurred. If the CCE predicate offenses are not
elements upon which the jury must agree, that is what the CCE
statute would allow.
20
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
(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. 12-14.13
We recognize that "history [is] less useful as a yardstick in
13
Judge Garth asserts that the law of conspiracy provides a
historical analogue to the continuing series requirement,
because, he argues, a defendant can be convicted of conspiracy
without jury agreement as to which object, of various objects
alleged, forms the basis of the conspiracy. We disagree. First,
we are skeptical of Judge Garth's premise. At some point,
different alleged conspiracy objects suggest such disparate fact
patterns that jury agreement as to the precise object of the
conspiracy is necessary to support conviction. See United States
v. Castro, 887 F.2d 988, 993 (9th Cir. 1989) ("A unanimity
instruction as to the particular objects of a charged conspiracy
is appropriate where it appears that a conviction might rest upon
different jurors having found the existence of different facts .
. . ."); accord United States v. Feldman, 853 F.2d 648, 653 (9th
Cir. 1988), cert. denied, 489 U.S. 1030 (1989). Second, even
assuming Judge Garth's view of conspiracy law is correct, the
object of a conspiracy -- the purpose of the conspiratorial
agreement -- is hardly analogous to the continuing series
requirement, which requires three completed acts (with
accompanying mental states) that themselves constitute separate
crimes.
21
cases dealing with modern statutory offenses lacking clear common
law roots." Schad, 501 U.S. at 640 n.7 (plurality opinion). But
to the extent history has any force, it counsels against
interpreting CCE predicate violations as means, for which
unanimity is not required.
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 (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 21 U.S.C. § 848(c).
Predicate offenses thus range from simple possession of
marijuana, 21 U.S.C. § 844, to the distribution of cocaine or
heroin, 21 U.S.C. § 841. The disparate penalties imposed for
different violations -- generally no more than a year in prison
for the first-time offense of simple possession, see 21 U.S.C.
§844(a), compared to a minimum of ten years in jail for
distributing a large quantity of drugs, see 21 U.S.C.
§841(b)(1)(A) -- cast serious doubt on whether different
predicate offenses (at least these different offenses) can be
characterized as equally blameworthy.14 These potential
14
The predicate offenses involved in this case do not pose the
severe disparate culpability problem identified in the
hypothetical above, and thus Edmonds is not in a position to
challenge the CCE statute's constitutionality on this basis. See
22
constitutional problems -- both equivalent blameworthiness and
lack of a historical analogue -- also lead us to interpret the
CCE predicate violations as elements of different offenses, for
which unanimity is required.
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
Schad, 501 U.S. at 644 ("The question is whether felony murder
may ever be treated as the equivalent of murder by deliberation,
and in particular whether robbery murder as charged in this case
may be treated as thus equivalent.") (emphasis added). However,
the possibility of constitutional problems in other cases is an
important consideration in our interpretive inquiry.
23
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 (1980) ("In
past cases the Court has made it clear that [the rule of lenity]
applies not only to interpretations of the substantive ambit of
criminal prohibitions, but also to the penalties they impose.")
(citations omitted). According to the Supreme Court, the rule
ensures "there is fair warning of the boundaries of criminal
conduct and that legislatures, not courts, define criminal
liability." Crandon v. United States, 494 U.S. 152, 158 (1990)
(citing Liparota v. United States, 471 U.S. 419, 427 (1985);
United States v. Bass, 404 U.S. 336, 347-48 (1971)).
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 (1958) (a single discharge of a
shotgun wounding two federal officers constitutes a single
24
violation of 18 U.S.C. § 254 (1940)); Bell v. United States, 349
U.S. 81 (1955) (transporting two women across states lines
constitutes a single violation of the Mann Act); United States v.
Universal C.I.T. Credit Corp., 344 U.S. 218 (1952) (each breach
of Fair Labor Standards Act duty to a single employee in any
single workweek does not constitute a separate offense).
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, 114 S. Ct. 1259, 1261 (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." 114 S. Ct. 1259, 1261
(1994) (quoting 18 U.S.C. § 3565(a)) (emphasis added). Because
the phrase was ambiguous, the Court applied the rule of lenity
and interpreted the phrase to mean the applicable Guidelines
sentence of imprisonment, not the revoked term of probation,
resulting in a much shorter sentence. Id. at 1267-68. In that
case, the defendant's conduct -- possessing illegal drugs while
on probation -- was clearly illegal and the only question was the
harshness of the penalty. The court's opinion thus implies that
fair warning as to the harshness of criminal penalties is an
important concern. Accord Bifulco v. United States, 447 U.S.
25
381, 400 (1980) (applying rule of lenity in deciding what
punishment is authorized by a statute); Ladner v. United States,
358 U.S. 169, 178 (1958) ("This policy of lenity means that the
Court will not interpret a federal criminal statute so as to
increase the penalty that it places on an individual when such an
interpretation can be based on no more than a guess as to what
Congress intended.").
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, 113 S. Ct. 2050,
2059 (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 (1971) (quoting United States v. Fisher, 6 U.S.
(2 Cranch) 358, 386 (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, in conjunction with the other principles we have
26
discussed, lead us to read the CCE statute to require unanimity
as to each predicate offense.
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. 1992) (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
27
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, and cert. denied sub nom. Smith v.
United States, 506 U.S. 932, and cert. denied sub nom. Palmer v.
United States, 506 U.S. 933 (1992).15 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
15
The CCE statute's requirement that the defendant act "in
concert" with five or more other people, 21 U.S.C. § 848(c), is
similar to conspiracy law's requirement that a defendant enter
into an agreement with some number of co-conspirators. Thus, the
identity of a conspiracy defendant's co-conspirators provides a
useful historical analogue to the identity of the five CCE
underlings.
28
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 21
U.S.C. § 848(a). Because there is no evidence of congressional
intent to the contrary, we hold that the CCE statute requires
unanimity as to its predicate offenses.
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.16 Furthermore, as this case illustrates, see
infra, unanimity as to predicate offenses is hardly an onerous
burden.
III. Harmless Error
Because there is a "reasonable likelihood," Estelle v.
McGuire, 112 S. Ct. 475, 482 (1991); Boyde v. California, 494
U.S. 370, 380 (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
16
As our holding is based on statutory interpretation, we do not
reach the question whether the CCE statute would be
unconstitutional absent a unanimity requirement. We leave that
decision for another day.
29
error implicates Edmonds's Sixth Amendment right to a unanimous
verdict in a federal criminal trial.17 However, most
17
Language in the Schad plurality opinion arguably casts some
doubt on whether the Sixth Amendment is implicated in jury
verdict specificity problems. See Schad, 501 U.S. at 634 n.5
(plurality opinion) (criticizing the Fifth Circuit for grounding
the right to jury consensus on a single course of action on the
Sixth Amendment rather than the Due Process Clause). However,
read as a whole, we think that the Schad plurality's emphasis on
the Due Process Clause does not mean that the Sixth Amendment is
irrelevant here. Rather, we conclude that the Sixth Amendment
does require unanimity, in federal criminal trials, on all
elements of the offense. However, because what constitutes an
"element" is purely a matter of legislative intent, the Sixth
Amendment places no limit on the legislature's power to make
alternative facts "means" not subject to a unanimity requirement.
The limit on the legislature's definitional power, then, comes
from the Due Process Clause. See Miller, supra, at 2284.
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 (plurality opinion).
However, we reject the applicability of Judge Alito's
constitutional test. Judge Alito asserts that a legislative
definition is unconstitutional only if it "contain[s] a
combination of elements having no rational basis other than" an
attempt to create room for factual disagreement underlying a
conviction. While this framing of the issue represents an
interesting way of balancing legislative deference with
constitutional concerns, it is without support. Judge Alito
asserts that the problematic hypotheticals discussed in Schad --
(1) a crime permitting alternative findings of "embezzlement,
reckless driving, murder, burglary, tax evasion, or littering,"
Schad, 501 U.S. at 633 (plurality opinion); and (2) "a felony
consisting of either robbery or failure to file a tax return,"
id. at 650 (Scalia, J., concurring in the judgment) -- have no
rational basis other than "the circumvention of otherwise
applicable jury-unanimity requirements." Although this may be a
true descriptive claim, it does not justify displacing the
constitutional tests explicitly stated by the Schad plurality
(history, wide practice, and moral equivalence) and Justice
Scalia (history) with a novel "rational combination of elements"
test.
30
constitutional errors are subject to the harmless error analysis
of Chapman v. California, 386 U.S. 18 (1967). See Rose v. Clark,
478 U.S. 570, 578-79 (1986) ("[W]hile there are some errors to
which Chapman does not apply, they are the exception and not the
rule.").
Edmonds argues, and the original panel held, that Sullivan
v. Louisiana, 113 S. Ct. 2078 (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 harmless 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.
31
113 S. Ct. at 2081-82 (citations omitted).18 Edmonds asserts, and
the panel agreed, that the jury instruction in this case allowed
the jury to return a non-unanimous 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 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.
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
18
In addition, the Court stated that "[a]nother mode of analysis
leads to the same conclusion," and held that the unconstitutional
reasonable doubt instruction was a "structural defect[] in the
constitution of the trial mechanism" not subject to harmless
error analysis. Id. at 2082-83 (quoting Arizona v. Fulminante,
49 U.S. 279 (1991) (opinion of Rehnquist, C.J., for the Court))
(internal quotations omitted); see also Sullivan, 112 S. Ct. at
2083-84 (Rehnquist, C.J., concurring) (applying the Fulminante
analysis).
32
(1989) (Scalia, J., concurring in judgment)); see also Yates v.
Evatt, 500 U.S. 391 (1991) (instruction containing an erroneous
presumption); Carella v. California, 491 U.S. 263 (1989) (same);
Rose v. Clark, 478 U.S. 570 (1986) (same); Pope v. Illinois, 481
U.S. 497 (1987) (instruction misstating an element of the
offense).
Even though such errors impermissibly deprive the jury of
its fact-finding function,19 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 (Scalia, J., concurring in the judgment); see
also Rose v. Clark, 478 U.S. 570, 580-81 (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,
19
See Carella, 491 U.S. at 265 ("Such directions subvert the
presumption of innocence accorded to accused persons and also
invade the truth-finding task assigned to juries in criminal
cases."); id at 268 (Scalia, J., concurring in the judgment)
("The Court has disapproved the use of mandatory conclusive
presumptions not merely because it conflict[s] with the
overriding presumption of innocence . . ., but also because it
invade[s] [the] fact-finding function which in a criminal case
the law assigns solely to the jury.") (citations and internal
quotations omitted) (alterations in original).
33
'every fact necessary' to establish every element of the offense
beyond a reasonable doubt.") (citations omitted); Carella, 491
U.S. at 266 (quoting this passage from Rose with approval); Pope,
481 U.S. at 503 (same).
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, 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 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 (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
34
to the jury -- and has not argued since -- that any of the
predicate offenses were unrelated to the others.20 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 18 U.S.C. § 1503 without finding that an official
proceeding was pending because the jury's finding that the
defendant attempted to obstruct justice "is so closely related to
the ultimate and unrebutted fact of the existence of a pending
grand jury proceeding"); United States v. Parmelee, 42 F.3d 387,
393 (7th Cir. 1994) (holding that a failure to instruct the jury
20
Edmonds suggests in his answer to the government's petition for
rehearing that it would have been improper to dispute relatedness
in the absence of his requested specific unanimity instruction.
We reject this argument because the jury was properly instructed
that it must find three related offenses to convict under the CCE
statute. Edmonds thus had ample incentive to contest
relatedness.
35
on an essential element of 8 U.S.C. § 1324(a)(1)(B) was harmless
because unrebutted evidence meant that no rational jury could
have convicted without finding the missing element), cert. denied
sub nom. Brozek-Lukaszuk v. United States, 116 S. Ct. 63, and
cert. denied sub nom. Sobiecki v. United States, 116 S. Ct. 63
(1995).
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 equivalent" findings, and thus that there
is some room for disagreement about the meaning of the term.
Nevertheless, Judge Stapleton's position lies outside of the
leeway left by the Supreme Court's pronouncements in this area.
More importantly, his rule, if adopted, would frustrate the
purpose of harmless error analysis -- to distinguish immaterial
errors from those affecting the trial's truth-finding function.
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
36
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. 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. 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; see also id.
at 583 (making several references to Chapman's requirement that
37
the entire record be reviewed).21 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. 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 undisputed evidence to give content to the jury's untainted
findings.
21
Although Justice Scalia's concurrence in Carella criticized a
broad review of the record in erroneous presumption cases, he has
not suggested that it is improper to examine the jury's findings
in light of evidence in the record necessary to establish those
findings. Furthermore, Justice Scalia's view of the impact of
record evidence has not carried a majority of the Court. Rather,
the Court has stated that harmless error analysis in erroneous
presumption cases includes a review of the record. See Yates,
500 U.S. at 405-06; Rose, 478 U.S. at 583-84.
38
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 (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.22
Accordingly, we hold that the error was harmless beyond a
reasonable doubt, Chapman, 386 U.S. at 24. The judgment of the
district court will therefore be affirmed.
______________________________
UNITED STATES v. THEODORE EDMONDS, No. 93-1890
STAPLETON, J., 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.
22
While Judge Greenberg joins in Judge Garth's opinion that the
charge was correct, if he concluded that the charge was erroneous
he would join in Part III of this opinion with respect to
harmless error.
39
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 (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. 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, 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. As my
40
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 [unanimous] jury would surely have found
petitioner guilty beyond a reasonable doubt -- not that the
jury's actual [unanimous] finding beyond a reasonable doubt would
surely not have been different absent the constitutional error."
Sullivan at 280.
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
41
Supreme Court distinguished in Sullivan. Id. at 280-81. In
cases like Rose v. Clark, 478 U.S. 570 (1986) and Carella v.
California, 491 U.S. 263 (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 (quoting from
Carella, 491 U.S. at 271).
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
42
malice from predicate facts, it must still find the existence of
those facts beyond a reasonable doubt," 478 U.S. at 580, 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. 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
23
This critical distinction was emphasized by Justice Scalia,
writing for four justices, in Carella:
[T]he harmless error analysis applicable in assessing a
mandatory conclusive presumption in wholly unlike the
typical form of such analysis. In the usual case the
harmlessness determination requires consideration of
"the trial record as a whole" in order to decide
whether the fact supported by improperly admitted
evidence was in any event overwhelmingly established by
other evidence.
491 U.S. at 267 (Scalia, J., concurring) (citations omitted). In
contrast, Justice Scalia explained, the type of harmless error
analysis applied in mandatory presumption cases seeks to
determine whether there are jury findings beyond a reasonable
doubt that are "functionally equivalent" to the missing element.
The Court adopted Justice Scalia's analysis in Sullivan, and to
43
conclusion does not alter the critical fact under Sullivan --
there is no unanimous jury verdict "upon which harmless-error
scrutiny can operate." Id. United States v. Edmonds, No. 93-
1890
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, 21
U.S.C. § 848. Unlike the majority, I am convinced that Congress
had no intention of imposing such a requirement when it enacted
the CCE statute. I also conclude that such an instruction is not
constitutionally required.
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
the extent this distinction is inconsistent with the terms of the
remand in Rose, Sullivan, not Rose, is currently the law of the
land.
44
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 Fed. R. Cr.
P. 31(a) (which simply requires a unanimous "verdict") and of
constitutional
requirements (which I discuss in Part II of this opinion). I
think that the majority's interpretation of the CCE statute is
wrong because it has no support in the language or legislative
history of the CCE statute and because Congress has not followed
the practice of including special jury-unanimity requirements as
a part of criminal statutes (other than a few recent statutes
setting out capital sentencing procedures.)24
A. The pertinent part of the CCE statute, 21 U.S.C.
§848(c), provides as follows:
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 a part of a continuing series of
violations of this subchapter or subchapter II of this
chapter --
24
See 18 U.S.C. § 3593; 21 U.S.C. § 848(k). I discuss 21 U.S.C. §
848(k) in footnote 2, infra.
45
(A) which are undertaken by such person in concert
with five or more other persons with respect to whom
such person occupies a position or 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 21 U.S.C. §848(c)(2) -- and the majority does not contend
otherwise. See Maj. Op at 10. Indeed, the majority does not
identify any statutory language that could serve as a reference
point for its interpretation. Thus, even if there were extra-
textual support for the proposition that Congress intended to
impose a special jury-unanimity requirement in CCE cases, the
majority's interpretation would run into difficulty, for as the
Supreme Court has noted, "`courts have no authority to enforce
[a] principl[e] gleaned solely from the legislative history that
has no statutory reference point.'" Shannon v. United States,
114 S.Ct. 2419, 2426 (1994) (citation omitted); accord United
States v. Fisher, 10 F.3d 115, 120 (3rd Cir. 1993).25
25
It is worth noting that another portion of the CCE statute, 21
U.S.C. §848(k), expressly requires jury unanimity with respect to
a different finding. In 1988, death penalty provisions were
added to the CCE statute. See Anti-Drug Abuse Act of 1988, Pub.
L. 100 - 690, § 7001, 100 Stat. 4387. Under one of these new
provisions, 21 U.S.C. §848(k), a death sentence may be imposed
only if aggravating factors are found to exist, and this
provision expressly provides that "[a] finding with respect to
any aggravating factor must be unanimous." While this provision
was enacted well after the portion of the statute, 21 U.S.C
§848(c), with which we are now concerned, the presence of an
express jury-unanimity requirement in another subsection of the
2
B. Finding no support for a special jury-unanimity
requirement in the language of §848(c), I turn to the legislative
history of that provision, and again I find no support. As the
majority states, neither the parties nor the majority itself has
unearthed any indication in the legislative history that Congress
intended to adopt such a special requirement. See Maj. Op. at
17. Thus, the two sources on which we most frequently rely in
interpreting statutes, the statutory language and the legislative
history, provide no basis for holding that §848(c) contains a
special jury-unanimity requirement -- or even for concluding that
there is any ambiguity on this point.
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
CCE statute weighs against the proposition that Congress, in
enacting §848(c), intended to impose an analogous requirement but
either felt that it was unnecessary or neglected to insert any
statutory language manifesting such an intent. The express jury
unanimity requirement in 21 U.S.C. § 848(k) "shows that Congress
knew how to draft [such a requirement] when it wanted to." City
of Chicago v. Environmental Defense Fund, 114 S. Ct. 1588, 1593
(1994).
3
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 §848(c),
I think that the majority's interpretation can confidently be
rejected.
D. The majority claims that its interpretation of §848(c)
is supported by two canons of construction -- the rule of lenity
and the rule that an ambiguous statute should be interpreted
where possible to avoid "`grave and doubtful constitutional
questions.'" Maj. Op. 21 (quoting United States ex rel. Attorney
General v. Delaware & Hudson Co., 213 U.S. 366 (1909)). Neither
of these canons, however, is applicable here. Both canons may
properly be invoked only when the statute in question is
legitimately ambiguous on the point at issue. These canons are,
after all, tools for identifying, not overriding, congressional
intent. As the Supreme Court recently noted, the rule of lenity
"applies only if, `after seizing everything from which aid can be
derived,' we can make `no more than a guess as to what Congress
intended.'" Reno v. Koray, 115 S.Ct. 2021, 2029 (1995) (citation
omitted); See also United States v. Turcks, 41 F.3d 893, 901 (3d
Cir. 1994) (rule of lenity "operates only after it is determined
that a criminal statute is ambiguous, not at the beginning of the
process of construction, as an overriding consideration of being
lenient to wrongdoers") (citation and internal quotations
omitted); United States v. Lanier, 73 F.3d 1380, 1390 (6th Cir.
1996) (when applying the rule of lenity courts should not go to
4
extreme lengths to characterize criminal statutes as ambiguous
when they can be read as relatively well-defined); United States
v. Valencia-Andrade, 72 F.3d 770, 774 (9th Cir. 1996) (rule of
lenity serves as aid for resolving ambiguity; it is not used to
beget one). Likewise, "resort to an alternative construction to
avoid deciding a constitutional question is appropriate only when
such a course is `fairly possible' or when the statue provides a
`fair alternative' construction." Swain v. Pressley, 430 U.S.
372, 378 n.11 (1977); See also Friedrich v. United States, 974
F.2d 409, 418-19 (3d Cir. 1992) ("Although a statute should be
interpreted in a fashion that does not defeat the congressional
purpose, . . . a court may not rewrite an unambiguous law")
(citation omitted); United States v. Salisbury, 983 F.2d 1369,
1380 (6th Cir. 1993) (same); Block v. Meese, 793 F.2d 1303, 1310
(D.C. Cir. 1986) (Scalia, J.) (court may not read limitation into
statute to avoid constitutional issue where no language in
statute supports such interpretation). In this case, therefore,
in the absence of any ambiguity as to whether Congress intended
to include a special jury-unanimity requirement in §848(c) -- and
for the reasons explained above, I see no such ambiguity --
neither of the canons advances the majority's argument.
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 19. The majority states:
5
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 instruments26 and bills of
particulars,27 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 19. Nor is it
true that the prosecution has invariably28 been required to
26
See, e.g., Fed. R. Crim. P. 3 (a complaint sets out "the
essential facts constituting the offense charged"); Fed. R. Crim.
P. 7(c)(1) (the indictment or the information must set out "the
essential facts constituting the offense charged.").
27
See Fed. R. Crim. P. 7(f).
28
I am aware that the majority states that "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 specified time." Maj. Op. at 19 (emphasis added).
If this rule is only "generally" true, however, then there must
be instances in which it is not true. And if that is so, then I
think it is incumbent upon the majority to explain when the rule
does not apply and why the present case is not analogous to those
in which this rule has not traditionally held true. The majority
provides no such explanation.
6
establish the "specified time and place" where a charged offense
occurred. 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 19. 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, that the medical
examiner attributes death to a fall, that the defendant is later
stopped while driving the victim's car and is found to have made
many purchases using the victim's credit cards, and that forensic
evidence ties the defendant to the victim's death. Suppose that
six jurors conclude that the defendant deliberately pushed the
victim off the cliff but that the remaining six jurors think that
the victim accidentally fell to his death while attempting to
flee from the defendant, who was robbing him. Schad teaches that
7
the jury could find the defendant guilty of first-degree murder
despite this important disagreement about the defendant's
conduct.
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. 19.
8
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
§848(c). Certainly I do not see anything that can begin to
overcome the lack of support for that interpretation in either
the statutory language or the legislative history and the absence
of any congressional practice of imposing special jury-unanimity
requirements as part of criminal statutes (other than the few I
mentioned concerning capital sentencing). I therefore conclude
9
that §848(c) does not include any special jury-unanimity
requirement.
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 required to reach unanimous agreement as
to the particular offenses that made up the "continuing series"
of violations that the defendant committed. Because this is a
federal case, the only constitutional provision relevant to the
issue of jury-unanimity, in my view, is the Sixth Amendment.
Unlike the majority, I do not think that the Due Process Clause
of the Fifth Amendment has any bearing on this issue.29 See Maj.
Op. 21.
29
My evaluation of the constitutional issue presented in this case
would not change if I believed that the Due Process Clause of the
Fifth Amendment were applicable here, but I do not think that it
is.
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 12-13, 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, 114 S. Ct. 807, 813 (1994)(plurality)(quoting
Graham v. Connor, 490 U.S. 386, 395 (1989). See also id. at 814
(Scalia, J., concurring); cf. id. at 817 (Ginsburg, J.,
concurring); id. (Kennedy, J., concurring); id. at 819-22
(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
10
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 (1973), 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. at 371 (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
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. 464
(1972).
In Schad v. Arizona, 501 U.S. 624 (1991), both the plurality
opinion (see id. at 632-645) and Justice Scalia's concurrence
(see id. at 649-652) discussed the constitutional restrictions
imposed by the Due Process Clause of the Fourteenth Amendment
because Schad was a state prosecution and the Sixth Amendment's
implicit guarantee of a unanimous jury verdict is not applicable
to the states. Johnson v. Louisiana, supra; Apodaca v. Oregon,
supra. (This is my interpretation of the main thrust of footnote
5 of the Schad plurality opinion (501 U.S. at 634 n.5), which the
majority discusses. See Maj. Op. 30 n.16.)
Some of the hypothetical statutes mentioned in the Schad
plurality opinion and in Justice Scalia's concurrence could raise
due process concerns unrelated to the question of jury unanimity.
But insofar as jury unanimity is concerned, I see no
justification for looking further than the Sixth Amendment.
11
adoption of the Bill of Rights required a unanimous jury verdict
-- and, as far as I am aware, nothing more.30 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 instructed regarding the
elements of the offense with which the defendant is charged, and
each juror, before deciding to vote "guilty," must decide in his
or her own mind that every element was proven beyond a reasonable
doubt. When the jurors vote, they must unanimously vote "guilty"
in order for there to be a conviction. But assuming that they
all vote "guilty," the Sixth Amendment unanimity requirement does
not demand anything more. It does not require unanimity with
respect to any subsidiary factual determinations that the
individual jurors may have made in their own minds before casting
their votes.
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
30
See, e.g., 4 W. Blackstone, Commentaries *376; Virginia
Declaration of Rights, sec. 8 (protecting right "to a speedy
trial by an impartial jury of [the] vicinage, without whose
unanimous consent [a defendant] cannot be found guilty");
Delaware Declaration of Rights and Fundamental Rules, § 14
(protecting "right to a speedy Trial by an impartial Jury,
without whose unanimous Consent [a defendant] ought not to be
found Guilty"); Vt. Constitution of 1777 ch. 1, art. X (defendant
cannot be found guilty without "the unanimous consent" of the
"jury").
12
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
13
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
14
observed that, when a statute sets out alternative elements, it
is appropriate to consider whether they can reasonably be viewed
as reflecting "notions of equivalent blameworthiness or
culpability" or whether, as in his previous example of the
offense of "Crime," no such view of the definition can reasonably
be entertained. Id. at 643.
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
15
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 (opinion of Souter, J.)) -- 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
16
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 [these 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" from this series of violations.
21 U.S.C. §848(c). The presence of these additional elements
supports the view that the CCE statute represents an effort to
define a distinct type of criminal activity.
The background of the CCE statute fortifies this view. The
CCE statute was enacted as part of the Comprehensive Drug Abuse
Prevention and Control Act of 1970, Pub. L. 91-513, 84 Stat.
1236. After study and consideration, Congress concluded that
drug abuse was "approaching epidemic proportions," that existing
17
federal drug laws were inadequate, and that new approaches were
needed. H.R. Rep. 91-1444, 91st Cong., 2d Sess., at 6, reprinted
in 1970 U.S. Cong. & Admin. News 4566, 4571-72. The CCE statute
represented one such innovative approach. Drafted to address
what Congress considered a rapidly growing problem, this statute
departed significantly from common law models and prior drug
laws. Much like the RICO statute, see 18 U.S.C. §§ 1961-64,
which was passed at roughly the same time, the CCE statute
created a new crime by reference to a criminal organization or
"enterprise." In enacting both of these ground-breaking
statutes, it was apparently Congress's judgment that a new
organizational approach was necessary in order to mount an
effective attack on criminal groups that were causing great
societal damage.
To my mind, this background must be taken into account in
considering whether Congress exceeded constitutional bounds by
creating the offense set out in 21 U.S.C §848(c). This
background shows, I believe, that Congress had a rational and
legitimate basis for crafting the particular combination of
elements required under 21 U.S.C §848(c)(2). Specifically, this
background demonstrates that it was the judgment of Congress that
a new type of criminal activity was growing in importance and
that a new type of criminal statute, keyed to the organizational
scope of that activity, was needed. This legislative judgment,
in my view, is entitled to substantial respect. See Schad, 501
U.S. at 637-39 (opinion of Souter, J.).
18
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 of 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.
United States v. Theodore Edmonds
No. 93-1890
(Argued In Banc October 25, 1995)
______________________________________________
GARTH, Circuit Judge, Concurring in Part and Dissenting in Part,
SLOVITER, Chief Judge, GREENBERG, NYGAARD, ALITO and ROTH,
Circuit Judges, Join in this Concurring and Dissenting Opinion.
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.
19
Congress has never required a unanimous finding for each and
every component of the Continuing Criminal Enterprise ("CCE")
statute, 21 U.S.C. § 848(c). Therefore, in my opinion, the jury
was not required to unanimously agree on which three predicate
acts constituted the "continuing series of violations" for
purposes of the CCE statute, as Echeverri required, and which the
majority of the Court now reaffirms.
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).
The plain reading and meaning of the CCE statute does not
require the identification of the particular predicate acts as an
element of the CCE offense. Therefore, the jury need not have
unanimously agreed on the same three predicate acts constituting
the "continuing series" in convicting Edmonds of CCE.
Accordingly, the district court did not err in failing to give
such a specific unanimity instruction.
A.
20
In order for the government to make out the offense of
conducting a continuing criminal enterprise, as defined by 21
U.S.C. § 848(c), it must show that:
(1) the defendant committed a drug-related felony, 21
U.S.C. 848(c)(1);
(2) the felony was "a part of a continuing series of
violations" of the drug laws; 21 U.S.C. § 848(c)(2)
(emphasis added);
(3) 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)(A); and
(4) the defendant obtained substantial income or
resources from these violations. 21 U.S.C. §848(c)(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
21
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); United States v.
Rosenthal, 793 F.2d 1214, 1226 (11th Cir. 1986), cert. denied,
480 U.S. 919 (1987), 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, -- F.3d --, 1996 WL 8119, *4 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
22
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
facts to, proving a single offense need not receive the unanimous
agreement of the jury.
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
23
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 63. 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"
24
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 correct, then it would inexorably follow that all
five or more individuals - the subject of the third CCE prong -
must likewise be identified and agreed upon by each member of the
jury. Yet we have held, and the majority apparently agrees with
that holding, (Maj. Op. at 25), that this is not required. See
United States v. Jackson, 879 F.2d 85 (3d Cir. 1989) (unanimity
on five or more supervised individuals not required).
25
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,
26
or managed by the defendant for purposes of the CCE statute.31
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
25). 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 787, 991 (10th Cir. 1994); United
States v. Peral-Cota, 1993 WL 68934, *4 (9th Cir. 1993).32
31
At least seven other circuits have not required unanimity with
respect to the identity of the five underlings in the CCE
statute. See United States v. Jelinek, 57 F.3d 655, 658 (8th
Cir. 1995), cert. denied, 116 S. Ct. 236 (1995); United States
v. Harris, 959 F.2d 246 (D.C. Cir.), cert. denied, 506 U.S. 932
(1992); United States v. Canino, 949 F.2d 928 (7th Cir. 1991),
cert. denied, 504 U.S. 910 (1992); United States v. Moorman, 944
F.2d 801 (11th Cir. 1991) (per curiam), cert. denied, 503 U.S.
1007 (1992); United States v. English, 925 F.2d 154, 159 (6th
Cir.), cert. denied, 501 U.S. 1211 (1991); United States v.
Linn, 889 F.2d 1369, 1374 (5th Cir. 1989), cert. denied, 498 U.S.
809 (1990); United States v. Tarvers, 833 F.2d 1068, 1074 (1st
Cir. 1987).
32
Indeed, as the Supreme Court has held, "[w]hen a jury returns a
guilty verdict on an indictment charging several acts in the
conjunctive, . . . the verdict stands if the evidence is
sufficient with respect to any one of the acts charged." Griffin
v. United States, 502 U.S. 46, 56-57 (1991) (quoting Turner v.
United States, 396 U.S. 398, 420 (1970)).
27
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 another
group of five." (Maj. Op. at 26). However, as discussed infra,
the CCE statute clearly provides that engaging in one group of
related predicate acts is as equally blameworthy as engaging in
another group of related predicate acts. Just as the exact
identities of the five supervised individuals are preliminary
factual findings or mere alternative means to proving a CCE
offense, the exact identities of the predicate acts constituting
the "continuing series of violations" are also preliminary
factual findings or mere alternative means to proving a CCE
offense and thus need not be the subject of jury unanimity. See
United States v. Anderson, 39 F.3d 331, 350-51 (D.C. Cir. 1994)
(holding that the district court's failure to instruct the jurors
that they were required to agree unanimously on the particular
predicate acts committed and the identities of the five
individuals managed in order to convict the defendant for
violation of the CCE statute was not plain error), cert. denied,
116 S. Ct. 542 (1995); United States v. Canino, 949 F.2d 928,
948 (7th Cir. 1991) (holding that juror unanimity was not
required on the identities of the predicate offenses constituting
the "continuing series" because "[t]he constitutional requirement
of juror unanimity in federal criminal offenses is satisfied when
each juror in a CCE trial is convinced beyond a reasonable doubt
28
that a defendant charged under the CCE statute committed two
predicate offenses."), cert. denied, 504 U.S. 910 (1992).33
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
33
See also United States v. Kramer, 955 F.2d 479, 486-87 (7th Cir.
1992) (rejecting defendants' contention that the jury should have
been instructed that it must unanimously agree as to each of the
two or more predicate offenses constituting the "continuing
series" of CCE, where the court had given a general unanimity
instruction), cert. denied, 506 U.S. 998 (1992); United States v.
Hernandez-Escarsega, 886 F.2d 1560 (9th Cir. 1989) (specific
unanimity instruction not required where the jury had convicted
the defendant of two the eleven predicate offenses alleged in the
CCE count, and where there was "overwhelming" evidence at trial
that the other charged predicate acts had occurred), cert.
denied, 497 U.S. 1003 (1990).
29
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 18). 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 violate the Due Process
Clause absent a specific unanimity requirement." (Maj. Op. at
19). The majority, however, cannot find a principled way to
argue that due process was violated in this case when it was not
violated in Schad.
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
30
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 20 (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.'" Schad, 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
31
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 787, 991
(10th Cir. 1994); United States v. Peral-Cota, 1993 WL 68934, *4
(9th Cir. 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.34
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
34
I raise this point not to "suggest[] that the equivalent
blameworthiness test is a pointless exercise," (Maj. Op. at 22),
but to highlight the fact that the majority's criticism of the
CCE statute would not be cured by the specific unanimity
instruction requested on the appeal before us. Indeed, the
majority's "equal blameworthiness" argument does not provide
support for a specific unanimity instruction but instead stands
as a challenge to the facial constitutionality of the CCE
statute.
32
predicate acts constituted the "series," does not violate due
process.35
C.
Finally, the majority also argues that requiring specific
unanimity is "counseled" by the rule of lenity.
First and foremost, the rule of lenity applies only when a
statute is ambiguous and, in light of the traditional view that
unanimity is required only as to the general verdict, the CCE
statute cannot be deemed ambiguous.
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 22). 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.
35
The majority also notes for the first time in the harmless error
section of its opinion, that the Sixth Amendment is also
"implicated" by the district court's failure to give a specific
unanimity instruction in this case. (Maj. Op. at 27). However,
as the majority concedes, the present inquiry turns not on Sixth
Amendment concerns but Due Process concerns. (Maj. Op. at 27
n.11).
33
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 24).36
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.
36
Presumably, the "procedural protection" that the majority has in
mind is a specific unanimity instruction to the jury.
34
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.
35