United States v. Russell

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit

1-16-1998

United States v. Russell
Precedential or Non-Precedential:

Docket 96-7760

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Filed January 16, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7760

UNITED STATES OF AMERICA

v.

JAMES RUSSELL, aka GAITH JUNIOR DOUGLAS,
aka STEVEN SHAWN JONES

JAMES RUSSELL, a/k/a Steven Shawn Jones,

Appellant.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Criminal No. 94-cr-00314-1)

ARGUED AUGUST 11, 1997

BEFORE: ALITO, LEWIS and McKEE, Circuit Judges.

(Filed January 16, 1998)

Michael J. Zicolello (ARGUED)
Schemery & Zicolello
330 Pine Street
One Executive Plaza, Suite 201
Williamsport, PA 17701

Attorney for Appellant
 George J. Rocktashel (ARGUED)
Office of United States Attorney
240 West Third Street
P.O. Box 548
Williamsport, PA 17703

Attorney for Appellee

OPINION OF THE COURT

LEWIS, Circuit Judge.

James Russell was convicted of conspiracy to distribute
controlled substances in violation of 21 U.S.C. S 846, and
conducting a continuing criminal enterprise (CCE) in
violation of 21 U.S.C. S 848. He was sentenced to two
concurrent life terms.

Russell's appeal presents a number of challenges to his
convictions, the primary one being that the district court
failed to instruct the jury properly on the CCE count. We
will discuss each of Russell's challenges in turn, focusing in
more detail on his claim that the CCE instruction deprived
him of his Sixth Amendment right to a unanimous jury
verdict.

We will conclude that the jury instruction on the CCE
count was erroneous and was not harmless error.
Accordingly, we will reverse Russell's conviction under the
CCE statute. We will affirm his convictions on all other
counts.

I.

A. Facts

Russell and four others were charged with conducting a
continuing criminal enterprise (Count I), conspiracy to
distribute controlled substances (Count II), and money
laundering (Count III). The indictment also sought the
forfeiture of property and assets obtained with proceeds of
drug sales, pursuant to 21 U.S.C. S 853(p). App. at 53.
Three of Russell's co-defendants, Mark Smith, Richard

2
Francis Robinson and Arthur Lester Raymond, pleaded
guilty to the conspiracy charge and testified against Russell
at trial.

Russell's trial commenced in June 1995 and lasted
approximately six weeks. The testimony outlined a complex
and lucrative scheme, organized by Russell, to distribute
drugs in Pennsylvania, initially in Philadelphia and later in
Williamsport. Essentially, Russell, Robinson, Smith and
Raymond pooled their funds to make large purchases of
cocaine base and cocaine powder from suppliers in New
York. The drugs were repackaged and distributed to sellers
in Pennsylvania, and then sold on the street in $10 or $20
bags.

In addition to conducting his own distribution network in
Williamsport, Russell also supplied cocaine to other
distributors operating networks there. Specifically, Russell
developed a business relationship with one David Williams.
Russell would supply Williams with cocaine, which Williams
would then sell from a location known as the "pink house."
Over time, Williams permitted Russell to sell cocaine
directly out of the "pink house." Russell's co-conspirators
were not permitted to sell drugs out of this location.

B. Weapons Use

Testimony at trial also revealed that between 1990 and
1994, Russell had his girlfriend, Melita Garcia, purchase a
number of guns for him. Garcia testified that she
purchased the weapons with cash given to her by Russell.
Although there was no testimony relating to Russell's
specific use of the guns during particular drug
transactions, the government introduced evidence, over
Russell's objection, pertaining to Russell's arrest in 1991 in
Maple Shade, New Jersey. At the time of the arrest, Russell
was traveling with Mark Smith from New York where they
had purchased cocaine from one of Russell's sources. When
the car was stopped, the police discovered a gun in the
trunk, together with 473 grams of cocaine and packaging
material. Russell pleaded guilty to the gun charge and was
released for time served.

Another witness, Andre Grimes, testified that in another
incident relating to the drug operation, Russell used a knife

3
to assault George Felder. Grimes testified that in October
1994, he and Russell assaulted Felder because Felder had
allegedly stolen approximately $400 to $500 in drug
proceeds belonging to Russell. App. at 383-85. Grimes
explained that when he and Russell approached Felder
about the stolen money, Felder had a knife. App. at 385.
Grimes testified that he felt threatened, picked up a bat
and started hitting Felder with it. Id. He further testified
that when Felder dropped the knife, Russell picked it up
and "started slicing him with it." Id. at 386. On the basis of
this testimony, the court assessed a two-level increase to
Russell's base offense level for possessing a dangerous
weapon during the course of the offense, pursuant to
S 2D1.1(b)(1) of the Sentencing Guidelines.

C. Sentence

To compute Russell's offense level under the Sentencing
Guidelines, the district court held a hearing concerning the
quantity of drugs attributable to him. Ultimately, the court
concluded that the quantity of drugs for which Russell was
responsible could not be discerned from the trial testimony,
and that "[t]he best estimate available to the court of a drug
quantity for which Russell is responsible is found in the
stipulations regarding drug quantity to which Russell's co-
conspirators entered after pleading guilty to conspiring with
Russell." App. at 137. Because Russell's co-conspirators
stipulated that they were responsible for quantities not
exceeding 20 kilograms of powder cocaine and 250 grams
of cocaine base, the court determined that Russell was
responsible for the same amount. Thus, the court assessed
Russell's base offense level, under S 2D1.5(a)(1), at 38. With
the two-level increase for possession of a firearm and a two-
level increase for obstruction of justice, Russell's resulting
offense level was 42. Applied to his criminal history
category of II, his resulting imprisonment range under the
Sentencing Guidelines was 360 months to life.

Russell appeals the conviction and sentence entered by
the district court. The district court had jurisdiction under
18 U.S.C. S 3231, and we have jurisdiction under 18 U.S.C.
S 1291.

4
II.

A. The CCE Statute & Specific Unanimity

The CCE statute under which Russell was convicted
requires that the government prove the following elements:
(1) that the defendant committed a drug-related felony
under U.S.C. Title 21, Chapter 13, subchapter I or II; (2)
that this violation was part of a "continuing series of
violations" of the subchapter; (3) that the defendant acted
as an organizer, supervisor or manager of five or more other
persons in committing this series of violations; and (4) that
the defendant obtained "substantial income or resources"
from such activities. 21 U.S.C. S 848.

At issue here is the second element, which requires proof
that "such violation is a part of a continuing series of
violations." Id. With respect to this issue, the trial judge
instructed the jury as follows:

The phrase, a continuing series of violations means
three or more violations of the federal narcotics laws
which are in some way -- laws which are in some way
related to each other. In order to find that this element
has been established, you must unanimously agree
that the Defendant, Mr. Russell, participated in at least
three or more violations of the federal narcotics laws
which are in some way related to each other

App. at 2094. Russell claims that the district court's
instruction failed to advise the jury of the requirement that
they unanimously agree as to the identity of the three
related drug offenses constituting the criminal enterprise.
Appellant's Br. at 27. At trial the government introduced
substantial evidence of Russell's drug-related activity. But
Russell claims that the general unanimity instruction
permitted the jury to convict him so long as each juror was
convinced that he had committed a series comprised of any
three related drug violations, regardless of whether they
unanimously agreed as to the identity of each underlying
violation. See, e.g., United States v. Edmonds, 80 F.3d 810,
814 (3d Cir. 1996) ("For example, six jurors may have felt
that violations A, B, and C (but no others) were related, and
the other six jurors may have concluded that violations D,
E, and F (but no others) were related.").

5
While it is true that in most cases a general unanimity
instruction is sufficient to support a conviction, see United
States v. Beros, 833 F.2d 455, 460 (3d Cir. 1987), a specific
unanimity instruction is required "where the complexity of
the case, or other factors, creates the potential that the jury
will be confused." Id.; cf. United States v. Ryan, 828 F.2d
1010, 1020 (3d Cir.), rev'd on other grounds, United States
v. Wells, 117 S. Ct. 921 (1997) ("[I]n any case where a
count will be submitted to the jury on alternative theories,
prudence counsels the trial court to give an augmented
unanimity instruction if the defendant requests such a
charge. Unanimity is an indispensable element of a federal
jury trial.") (internal citation omitted). The purpose of a
specific unanimity instruction is to ensure that the jurors
are "in substantial agreement as to just what a defendant
did as a step preliminary to determining whether the
defendant is guilty of the crime charged." Beros, 833 F.2d
at 460 (quoting United States v. Gipson, 553 F.2d 453, 457-
58 (5th Cir. 1977)).

In Edmonds, we had to decide whether jury instructions
relating to a charge under the CCE statute must direct the
jury to agree unanimously on which of the alleged
violations constitute the continuing series required by the
statute. We held that a general unanimity instruction was
insufficient to support a conviction under the CCE statute,
concluding that the statute "requires unanimous agreement
as to the identity of each of the three related offenses
comprising the continuing series."1 Edmonds, 80 F.3d at
822 (emphasis added). Our decision in Edmonds was rooted
in the principle that a federal defendant in a criminal trial
has a constitutional right to a unanimous jury verdict. Id.
at 823 ("[T]he district court's failure to give . . . [the]
proposed specific unanimity instruction was error . . .
implicat[ing] Edmonds's Sixth Amendment right to a
unanimous verdict in a federal criminal trial."); see also,
_________________________________________________________________

1. In United States v. Echeverri, 854 F.2d 638 (3d Cir. 1988), we held
that a jury considering a CCE charge must unanimously agree on which
three acts constitute the continuing series of violations. In Edmonds,
sitting en banc, we explicitly recognized "the opportunity to reconsider
Echeverri" and reaffirmed the decision reached in that case. 80 F.3d at
812.

6
Andres v. United States, 333 U.S. 740, 748 (1948)
("Unanimity in jury verdicts is required where the Sixth and
Seventh Amendments apply."); Beros, 833 F.2d at 461
("[J]ust as the sixth amendment requires jury unanimity in
federal criminal cases on each delineated offense that it
finds a defendant culpable, it must also require unanimity
regarding the specific act or acts which constitutes that
offense.") (internal citation omitted).

The jury instruction at issue in this case is
constitutionally deficient in the same manner as was the
instruction in Edmonds. In Edmonds, the trial court
instructed the jury as follows:

The government has to prove [ ] that such violation was
part of a continuing series of related violations of the
federal narcotics laws. A continuing series of violations
requires proof beyond a reasonable doubt that three or
more violations of the laws occurred and that they,
those three or more, were related to each other.

80 F.3d at 813. Although Russell's jury was instructed that
they must "unanimously agree" that he "participated in at
least three or more violations of the federal narcotics laws,"
App. at 2094, this charge still amounted to a general, not
a specific, unanimity instruction. The jury should have
been instructed that unanimous agreement was required
not only to find the existence of a continuing series, but in
determining the composition of that series. Our holding in
Edmonds was clear: "[t]he CCE statute requires unanimous
agreement as to the identity of each of the three related
offenses comprising the continuing series." Edmonds, 80
F.3d at 822 (emphasis added); see also Gipson, 553 F.2d at
456-57 ("The unanimity rule . . . requires jurors to be in
substantial agreement as to just what a defendant did as a
step preliminary to determining whether the defendant is
guilty of the crime charged.")

To be sure, the government introduced compelling
evidence that Russell had, in fact, engaged in a large
number of drug-related transactions, any number of which
could have been the basis for an individual juror's
determination that he had participated in a continuing
series of violations under the CCE statute. But the

7
instruction given by the district judge permitted the jurors
to convict on the CCE count even if different jurors
determined that Russell had committed different acts.
Although the jurors may, in fact, have unanimously agreed
on a particular set of predicate acts, we cannot speculate as
to the content of the jury's deliberations. See United States
v. Beros, 833 F.2d 455, 461 (3d Cir. 1987) (" `[W]e are not
free to hypothesize whether the jury indeed agreed to and
was clear on the' transaction or theory by which it found
[the defendant] guilty.") (quoting United States v. Echeverry,
698 F.2d 375, modified, 719 F.2d 974 (9th Cir. 1983) (en
banc)). Thus, because the jurors may well have agreed that
a continuing series of violations had occurred, yet disagreed
as to the identity of the three related offenses comprising
the series, we conclude that the district court's failure to
give a specific unanimity charge violated Russell's Sixth
Amendment right to a unanimous verdict.2

B. Standard of Review

1. Preservation of Issue for Appeal

Though we have concluded that the charge on the CCE
continuing series element was error, we must nevertheless
determine whether it constituted reversible error. The
government argues, and the dissent agrees, that Russell
failed to preserve this issue, and thus the standard of
review is plain error. For the following reasons, we believe
that the issue was properly preserved, and therefore review
for harmless error.

Rule 30 of the Federal Rules of Criminal Procedure
provides that:
_________________________________________________________________

2. We do not suggest that in addition to a specific unanimity charge, a
special verdict form must be submitted to the jury requiring it to
enumerate the specific predicate acts which it has determined constitute
the continuing series. Nor do we believe it appropriate to prescribe
specific language to be used when charging a jury with respect to the
continuing series element of a CCE count. Just how the goal of ensuring
unanimous agreement is better left to the insight and experience of
district court judges on a case by case basis. We merely reaffirm our
holding in Edmonds that the jury be instructed to reach unanimous
agreement on the identity of the offenses constituting the continuing
series.

8
 No party may assign as error any portion of the charge
or omission therefrom unless that party objects thereto
before the jury retires to consider its verdict, stating
distinctly the matter to which the party objects and the
grounds of the objection.

The purpose of this provision is to allow the district court
an opportunity to correct potential problems in jury
instructions before the jury begins its deliberations. See
United States v. Logan, 717 F.2d 84, 91 (3d Cir. 1983)
("Rule 30 has the manifest purpose of avoiding whenever
possible the necessity of a time-consuming new trial by
providing the trial judge with an opportunity to correct any
mistakes in the charge before the jury begins to
deliberate.") (internal citation omitted).

The trial record in this case discloses the following
sequence of events with respect to the charge. First, the
judge gave a CCE charge which did not require specific
unanimity with respect to the continuing series of offenses.
App. at 2091-99. Next, the judge stated that the he would
meet with counsel to "find out any objections or exceptions
to the charge," and dismissed the jury for lunch. App. at
2141. During the ensuing conference, the prosecutor and
defense counsel engaged in a discussion concerning the
applicability of the Edmonds case. Russell's counsel argued
that a special verdict was required by Edmonds. The
government argued that the instruction as given was
consistent with Edmonds. App. at 2145. The court then
stated that it would consider the issue during the lunch
break, App. at 2145, but the issue was not revisited.

Although Russell's counsel did not explicitly state that he
was objecting to the CCE instruction,3 the colloquy between
the court and counsel regarding the Edmonds case, and the
_________________________________________________________________

3. Defense counsel made the following statement to the judge:

[Y]ou asked about the form, the form of the verdict and whether I
thought that there was any change that needed to be made. I was
attempting to point out that my interpretation of[Edmonds] seems
to suggest that there is a need for a special verdict page that
requires the jury to fill in three blank lines of which three
federal
felony offenses that have unanimously agreed upon having been
committed by the defendant.

9
context in which this conversation took place (an on-the-
record conference to discuss objections and exceptions to
the charge), lead us to conclude that the trial judge had
sufficient notice of a possible error in the CCE jury
instruction. As we noted earlier, the crux of Rule 30 is that
the district court be given notice of potential errors in the
jury instructions, not that a party be "required to adhere to
any formalities of language and style to preserve his
objection on the record." United States v. O'Neill, 116 F.3d
245, 247 (7th Cir. 1997) (internal citations omitted).4
Russell's trial counsel alerted the court to his belief that the
charge as given did not comply with our decision in
Edmonds, and the judge's statement that he would review
the issue suggests that the court understood this as an
objection (or at the very least, a point of disagreement with
the charge as given).
_________________________________________________________________

4. To the extent this sentiment has been expressed even more clearly in
the civil context, it serves to further demonstrate why the dissent relies
upon an overly formalistic interpretation of Rule 30 and its
requirements. Interpretations of Rule 51 of the Federal Rules of Civil
Procedure, the civil analog to Rule 30, indicate that formal objections
are
not required. See, e.g., Larry V. Muko, Inc. v. Southwestern Pennsylvania
Bldg. and Const. Trades Council, 670 F.2d 421, 425 (3d Cir. 1982) (issue
preserved for appeal where the party "may not have formally objected to
the jury charge, [but] it is clear from the record that the judge was made
aware of [the party's] position before the jury retired to consider its
verdict") (internal citation omitted); Kroger Co. v. Roadrunner Transp.,
Inc., 634 F.2d 228, 230 (5th Cir. 1980) ("The Rule does not require
formality, and it is not important in what form an objection is made or
even that a formal objection is made at all, as long as it is clear that
the
trial judge understood the party's position . . . The purpose of the Rule
is to inform the trial judge of possible errors so that he may have an
opportunity to correct them.") (emphasis added) (internal citation
omitted). The dissent relies heavily upon Rule 30's admonition that a
party state "distinctly the matter to which th[e] party objects and the
grounds of the objection." This language is virtually identical to that in
Rule 51 which states that a party must "state distinctly the matter
objected to and the grounds of the objection." Thus, while we agree with
Judge Alito's statement that Rule 30 "is a vitally important rule," we
also
believe it would be nonsensical not to furnish criminal defendants with
the same flexible, common-sense interpreation we afford litigants in the
civil context.

10
Certainly, an objection must be specific enough not only
to put the judge on notice that there is in fact an objection,
but to serve notice as to the underlying basis for the
objection. United States v. Sandini, 803 F.2d 123 (3d Cir.
1986). For example, in Sandini we determined that the
substance of a colloquy between the judge and defense
counsel was insufficient to have put the trial judge on
notice that an objection was based on Rule 404(b) of the
Federal Rules of Evidence, because defense counsel simply
repeated three times that the information was "irrelevant."
803 F.2d at 126. Here, however, the trial court was put on
notice that Russell believed that the instruction was
incorrect because it lacked the requisite specificity, and
that the basis for this belief was our decision in Edmonds.5

Finally, the context in which the colloquy between the
court and the attorneys took place provides an additional
basis for concluding that a proper objection was made. The
judge convened this on-the-record meeting specifically to
"find out any objections or exceptions to the charge." App.
at 2141. This is, of course, a common practice in both
_________________________________________________________________

5. We do not share the dissent's concern that during the colloquy,
Russell's counsel argued that Edmonds required a special verdict form,
see note 4, a position we have refused to adopt in this case. The dissent
urges that we have committed a "serious error" by obscuring the
distinction between an objection to a jury instruction and a request for
a special verdict sheet, but we have done no such thing. To be clear, the
only relevance we have placed on the defendant's request for a special
verdict sheet is that it put the judge on notice that specific unanimity
was needed. True, Russell's counsel, in requesting a special verdict form,
may have overemphasized what Edmonds required. But it is undeniable
that his remarks were sufficient to put the trial court on notice that, at
the very least, he did not believe that the charge as given was in
compliance with our holding in Edmonds. See United States v. Rosero, 42
F.3d 166, 173 (3d Cir. 1994) (Although alternative instruction advanced
by defendant "was also erroneous," defense counsel, in objecting to
court's charge, provided a clear explanation as to why the instruction
was erroneous and therefore "preserved valid objections to the erroneous
portion of the instructions.") Specifically, defense counsel called the
judge's attention to the relevant language in Edmonds, which the judge
indicated he would read. Ultimately, it was for the court to determine
whether Edmonds required a special verdict form or simply a specific
unanimity instruction. No such determination was ever made.

11
criminal and civil trials and serves as an invitation to
counsel to suggest corrections or amendments to the
charge, or to state or reiterate objections. Defense counsel
took this opportunity to engage the court and prosecutor in
an extended debate about whether or not the jury
instruction at issue was consistent with Edmonds. We
believe the court must have understood that Russell's
counsel was stating an objection to the charge as given;
thus, this issue was properly preserved for our review.6

2. Proposed Alternative Instruction

In addition to posing his objection, Russell's counsel
proposed an alternative jury instruction, one which
required specific unanimity as to the series of offenses
under the CCE count. In our view, this constitutes an
additional ground for applying a harmless error standard in
this case.7

The failure to give the defendant's proposed jury
instruction formed the primary basis for our decision in
Edmonds. While our holding was certainly premised upon
our discussion as to whether the court's charge was
sufficient to assure jury unanimity, our primary focus was
_________________________________________________________________

6. The dissent also urges that because Russell's counsel objected to
instructions 51 and 43 (neither of which had anything to do with
Edmonds), but failed to object to the general unanimity instruction at
the same time, the issue was not preserved. However, as we have noted,
Russell's counsel believed that a special verdict form was required by
Edmonds. This belief, while incorrect, was not unreasonable. At the time
Russell's counsel specifically objected to jury instructions 51 and 43, he
did not know that the judge would not be using his proposed special
verdict form. Although a special verdict form is not required, from the
perspective of Russell's counsel a general unanimity instruction coupled
with a special verdict form would have assured specific unanimity.
Therefore, defense counsel had no reason to object to the unanimity
instruction until the judge had ruled on his request for a special
verdict.
Again, the underlying purpose of Rule 30 is to put the judge on notice
as to potential errors. Here, as we discussed above, we believe the judge
was put on notice of an Edmonds problem.

7. Defendant's proposed jury instruction Number 41 stated in pertinent
part that "[y]ou as a jury, must agree unanimously on the three acts
which constitute the continuing series of Federal Drug Law violations."
Appellee's Supplemental Appendix at 25.

12
whether "the court's failure to give [the defendant's]
proposed specific unanimity instruction" constituted error.
Edmonds, 80 F.3d at 823.

Although it is unclear that proposing an alternative jury
instruction is itself sufficient to preserve the issue for
appeal, at least two of our cases have indicated that the
plain error standard will be applied when there has been no
specific objection to the charge as given and no alternative
jury instruction has been submitted. See, e.g., Beros, 833
F.2d at 458 ("review under the more deferential`plain error'
standard is appropriate in cases where no objection to jury
instructions is made, or where no alternative jury
instructions are proposed") (internal citations omitted);
United States v. DeCarlo, 458 F.2d 358, 370 (3d Cir. 1972)
(plain error analysis is applied "[i]n the absence of an
alternative request or specific objection" to the charge).
Other circuits have employed this analysis as well. See,
e.g., United States v. Payseno, 782 F.2d 832, 834 (9th Cir.
1986) (Where defendant "did not request a specific
unanimity instruction and failed to object to the court's
instructions as given" appellate court will review for plain
error.); United States v. Donathan, 65 F.3d 537, 540 (6th
Cir. 1995) ("Since defendant neither requested nor
submitted [an alternative] instruction, and did not object to
the instructions given by the trial judge, the jury
instructions are reviewable only for plain error."). However,
at least two circuits have indicated that proposing an
alternative jury instruction, without more, is insufficient to
preserve the issue. See United States v. Tannenbaum, 934
F.2d 8, 14 (2d Cir. 1991) ("[R]equested instructions do not
substitute for specific objections to the court's
instructions.") (quoting United States v. Graziano, 710 F.2d
691, 696 n.8 (11th Cir. 1983).

Because we hold that the colloquy between the district
judge and trial counsel was tantamount to an objection and
therefore sufficient to preserve this issue for our review, we
need not determine here whether or not proposing an
alternative instruction would be sufficient in and of itself to
avoid a plain error standard of review. However, under the
facts of this case, where defense counsel not only proposed
an alternative jury instruction but engaged the court and

13
prosecutor in a colloquy regarding an alleged error in the
charge, the issue was sufficiently preserved to invoke a
harmless error analysis.

3. Plain Error Analysis

We have concluded that the appropriate standard of
review in this case is harmless error. The government took
the position at oral argument that the appropriate standard
is plain error. The dissent agrees. Ultimately, however, we
believe the jury charge constituted reversible error even
under the more deferential plain error standard.

For there to be plain error, there must be an "error" that
is "plain" and that "affects substantial rights." United States
v. Retos, 25 F.3d 1220, 1228 (3d Cir. 1994) (quoting United
States v. Olano, 507 U.S. 725 (1993)). A deviation from a
legal rule is "error." Id. at 733. A "plain" error is one which
is "clear" or "obvious." Id. at 734. In this case the court
erred when it "deviated from the legal rule" that jurors must
be instructed as to the requirement of specific unanimity
to find a continuing series under the CCE statute.
Furthermore, the error was plain in that it was "clear" and
"obvious" from even a cursory reading of our decision in
Edmonds that a finding of specific unanimity was required
to sustain a CCE conviction. Edmonds, 80 F.3d at 822; see
also United States v. Stansfield, 101 F.3d 909, 920 (3d Cir.
1996) (omission of essential element of offense from jury
instructions "usually will be obvious error," therefore
satisfying the requirements that there be "error" and that
the error be "plain").

Having determined that the error was plain, we must now
examine whether the error "affected substantial rights,"
thus constituting reversible error under plain error review.
See Retos, 25 F.3d at 1228. We have no hesitation in
concluding that the error did affect a substantial right of
Mr. Russell -- his constitutional right to a unanimous jury
verdict on each element of the CCE charge. The Supreme
Court has held that due process requires "proof beyond a
reasonable doubt of every fact necessary to constitute the
crime with which [the defendant] is charged." United States
v. Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993) (quoting In re
Winship, 397 U.S. 358, 364 (1970)). See Government of

14
Virgin Islands v. Brown, 685 F.2d 834 (3d Cir. 1982) ("The
omission of an essential element of an offense in the charge
to the jury ordinarily constitutes plain error.") At least one
other circuit has found plain error under circumstances
similar to those presented here. See United States v.
Payseno, 782 F.2d 832, 836-37 (9th Cir. 1986) (after trial
court gave a general unanimity instruction, the reviewing
court found that there was a genuine possibility that the
jurors were not unanimous as to which of the charged
offenses supported the verdict, and held that the failure to
give a specific unanimity instruction therefore constituted
plain error).

C. Harmless Error Analysis

Under a harmless error review, if we find a constitutional
error, we may affirm the district court "only if the error is
harmless beyond a reasonable doubt." United States v.
Molina-Guevara, 96 F.3d 698, 703 (3d Cir. 1996) (citing
Chapman v. California, 386 U.S. 18, 24 (1967)). Under the
facts of this case, we cannot conclude that the error in the
charge to the jury was harmless beyond a reasonable
doubt, and therefore must reverse.

Although the government introduced a vast array of
evidence regarding Russell's drug-related activity, and the
jury determined that Russell was engaged in a continuing
series of violations, as we discussed above, it is impossible
to conclude beyond a reasonable doubt that the jury
reached unanimous agreement as to which specific
violations occurred. Therefore, we can only conclude that
Russell was deprived of his Sixth Amendment right to a
unanimous jury verdict. See, e.g., Beros, 833 F.2d at 463
("Because there is a significant possibility that this error
may have resulted in a non-unanimous verdict in violation
of the Sixth Amendment, the district court's instructions
were not harmless beyond a reasonable doubt."). Despite
the enormous volume of evidence introduced against
Russell, "we cannot affirm a non-unanimous verdict simply
because the evidence is so overwhelming that the jury
surely would have been unanimous had it been properly
instructed on unanimity." Edmonds, 80 F.3d at 824.

In Edmonds we ultimately determined that the failure of
the court to provide a specific unanimity instruction was

15
harmless error. But the facts which formed the basis for
that conclusion are not present in this case. In Edmonds,
the defendant was convicted of every violation alleged to
constitute the continuing series for the CCE charge.
Edmonds, 80 F.3d at 812-13. We did not have to speculate
whether the jurors reached agreement as to the identity of
each of the three offenses constituting the series, because
we had a jury verdict which demonstrated that each juror
believed the defendant to be guilty of all of the violations
constituting the series.

Russell, on the other hand, was not charged separately
with all of the underlying offenses which, according to the
government, constituted the continuing series for the CCE
count.8 Although he was convicted of conspiracy to
distribute controlled substances, and the government has
urged that this is the "functional equivalent" of a finding of
unanimity on the continuing criminal enterprise charge,
Appellee's Br. at 34-35, we cannot agree. The jury returned
a unanimous verdict on the conspiracy charge, but we can
only conclude from this that the jury agreed that Russell
was guilty of that one predicate offense.

The CCE statute requires that the defendant participate
in a "continuing series" of violations of the federal drug
laws. 21 U.S.C. S 848. We have held that a"continuing
series" consists of three or more separate violations.
Echeverri, 854 F.2d at 643. A jury finding that the
defendant was guilty of a single predicate act cannot be the
"functional equivalent" of a jury finding that the defendant
participated in a continuing series of three violations. It is
on this basis that we hold that the district court's failure to
instruct the jury as to the requirement of specific
unanimity for the continuing series element did not amount
to harmless error.
_________________________________________________________________

8. Although Russell was charged with multiple counts, only the count of
conspiracy to distribute controlled substances under 21 U.S.C. S 846
could qualify as a CCE predicate act, because the CCE statute expressly
requires that the violations constituting the continuing series be of
U.S.C. Title 21, Chapter 13, subchapter I or II. 21 U.S.C. S 848.

16
D. Conclusion

In summary, we hold that the jury instruction at issue
was erroneous because it failed to apprise the jury of their
responsibility to unanimously agree on the identity of the
three predicate violations constituting the continuing series
required for a CCE conviction. Furthermore, the failure to
give a proper unanimity instruction constitutes reversible
error under either a harmless error or plain error standard
of review. Accordingly, we will reverse the defendant's
conviction under 21 U.S.C. S 848, the CCE statute.

III.

Russell has raised a number of other challenges to his
conviction, none of which has merit. We will discuss each
of them in turn.

A. Alleged Evidence of Multiple Conspiracies

Russell contends that his rights were prejudiced by the
admission of evidence of multiple conspiracies at variance
with the single conspiracy alleged in the indictment.
Specifically, Russell maintains that evidence relating to his
activity at the "pink house" and drug activity in
Philadelphia illustrate the existence of two other
conspiracies separate from the Williamsport conspiracy
charged in the indictment. Russell argues that he has been
prejudiced because this evidence permitted the jury"to
consider offenses unrelated to the Williamsport conspiracy
when determining [his] guilt on the conspiracy count." See
Appellant's Br. at 30-38. We disagree. Russell has not been
prejudiced because the evidence offered by the government
supports the finding of a single conspiracy encompassing
the drug activities in Williamsport, Philadelphia and the
"pink house."

To determine whether a series of events constitutes a
single conspiracy or separate, unrelated conspiracies, a
three-step inquiry is required: (1) determining whether
there was a common goal among the conspirators; (2)
examining the nature of the scheme and determining
whether the agreement sought to bring about a continuous
result which could not be sustained without the continued

17
cooperation of the conspirators; and (3) examining the
extent to which the participants overlapped in various
dealings. United States v. Kelly, 892 F.2d 255, 259 (3d Cir.
1989). Clearly, the common goal of this conspiracy was to
make money selling cocaine. After applying the Kelly
factors, it seems obvious that virtually all activities the co-
conspirators engaged in to make money selling cocaine
could be encompassed within this single conspiracy. A
conspiracy charge often casts a wide net, and drug
distribution activities conducted in different locations can
certainly be encompassed within a single conspiracy. Nor
are we concerned that only Russell, not his co-conspirators,
sold drugs out of the "pink house." Co-conspirators do not
have to know all of the details, goals or even the identity of
other co-conspirators, to support the finding of a single
conspiracy. Id. at 260. We therefore affirm the jury's verdict
on the conspiracy count.

B. Admission of Evidence Relating to Maple Shade
Arrest and Handgun Purchases

Russell challenges the admission of evidence relating to
his arrest in 1991 in Maple Shade, New Jersey. He also
challenges the evidence introduced pertaining to several
handgun purchases made on his behalf by Melita Garcia,
his girlfriend. Russell maintains that the events
surrounding the arrest were not relevant to the issues to be
decided by the jury because they occurred in April 1991,
one year prior to the beginning of the conspiracy alleged in
the indictment. He challenges the evidence of handgun
purchases on the basis that: (1) there was no evidence
presented that he actually possessed the guns; and
(2) three purchases occurred prior to the April 1992 date
cited in the indictment as the beginning of the conspiracy.

The events relating to the Maple Shade arrest were
relevant at trial to show a common scheme or plan in
relation to the conspiracy alleged in the indictment. The
evidence at trial established that Russell and Smith were
arrested in Maple Shade on their way from New York where
they had purchased cocaine from one of Russell's sources.
App. at 1272. This same source was later used by Russell
to purchase drugs for his Williamsport operation. From
these events, a jury could reasonably infer a common

18
scheme or plan similar to that operated by Russell in
Williamsport and in which Smith participated. The evidence
was probative to establish an association between Smith
and Russell, to establish how the drug operation functioned
(i.e., drugs supplied from New York), and to establish a
common purpose. See, e.g., United States v. Montoya-Ortiz,
7 F.3d 1171, 1177-78 (5th Cir. 1993) (jury could consider
prior conduct to determine that conduct charged was not
"coincidence, accident, or mistake, but was instead a part
of [a scheme] in furtherance of " a particular goal or
purpose); United States v. Fitzherbert, 13 F.3d 340, 343
(10th Cir. 1993) (evidence of prior marijuana operation
admissible to establish "knowledge, intent, and the
presence of a common scheme or plan.").

Russell's challenge to the admission of evidence relating
to his gun purchases is equally unpersuasive. Russell
contends that the evidence was not relevant because there
was no evidence presented relating to his use or possession
of the guns. In our view, the jurors could have reasonably
concluded that he possessed the guns which were, after all,
purchased for him. Furthermore, it has long been
recognized that firearms are relevant evidence in the
prosecution of drug-related offenses, because guns are tools
of the drug trade. United States v. Muniz, 60 F.3d 65, 71
(2d Cir. 1995); see also United States v. Adams, 759 F.2d
1099, 1109 (3d Cir. 1985) (gun possession probative as to
scale of conspiracy and type of protection conspirators
believed was necessary to protect their operation). Finally,
Russell contends that because three of the gun purchases
occurred prior to the date cited in the indictment as the
beginning of the conspiracy, these purchases cannot be
relevant. We disagree. The jury reasonably could have
concluded that gun purchases completed prior to the
beginning of the drug conspiracy were made with the
anticipation that he would need "protection" to establish his
drug operation.

For the foregoing reasons, we conclude that the district
court's admission of evidence regarding the defendant's
Maple Shade arrest and gun purchases was not an abuse
of discretion.

19
C. Two-Level Increase in Offense Level for Weapons
Possession

The district court imposed a two-level increase in
Russell's offense level for possessing a dangerous weapon
pursuant to S 2D1.1(b)(1) of the Sentencing Guidelines. The
facts which formed the basis for this increase were
Russell's possession of the knife used to assault George
Felder in October 1994, and Russell's possession of two
guns, purchased by Melita Garcia. Russell maintains that
he used the knife in self-defense and argues that this is not
the type of possession contemplated by the Sentencing
Guidelines to warrant a two-level increase. We find this
argument unpersuasive.

The Sentencing Guidelines provide that the two-level
adjustment should be applied "if the weapon was present,
unless it is clearly improbable that the weapon was
connected with the offense." U.S.S.G. S 2D1.1, comment.
(n.3). The testimony relating to the knife assault
unequivocally established that the confrontation between
Russell and Felder involved a dispute about proceeds
generated from drug activity. Under such circumstances,
we cannot conclude that it was "improbable" that the knife
was connected with the offense. Moreover, inasmuch as we
believe that the district court's imposition of the two-level
increase on this basis was proper, we need not determine
whether an adjustment would have been appropriate under
a gun possession theory.

D. Use of Stipulations To Establish Drug Quantity

To sentence a defendant on a drug-related charge, the
district court must determine the quantity of drugs for
which the defendant was responsible. After reviewing the
record from Russell's trial, however, the district court
concluded that the quantity of drugs for which Russell was
responsible could not be discerned from the trial testimony.
In order to ascertain a quantity that could be attributed to
Russell's drug conspiracy and continuing criminal
enterprise, the court relied on stipulations agreed to
between the government and Russell's co-conspirators,
stating that they "form[ed] a highly reliable basis for an
estimate of the drugs attributable to Russell." App. at 134.

20
The district court sentenced Russell based on the same
quantity of drugs his co-conspirators stipulated to, 20
kilograms of powder cocaine and 250 grams of cocaine
base. Russell objects to the district court's method, urging
that it is an unreliable measure of the amount of drugs for
which he was accountable.

We are unpersuaded by Russell's argument. First,
Russell was the organizer of the conspiracy. We believe that
the quantity of drugs for which his co-conspirators have
taken responsibility provides a reliable basis for estimating
the quantity of drugs attributable to him. Second, even if
the estimate was unreliable, it was overgenerous to Russell.
The evidence at trial showed that because of his operation
at the "pink house," Russell actually participated in a
greater number of drug transactions than did his co-
conspirators. For the foregoing reasons, we affirm the
sentence imposed by the district court for Russell's
conspiracy conviction. We will reverse Russell's conviction
and vacate his sentence on the CCE count, and remand for
further proceedings consistent with this opinion.

21
ALITO, Circuit Judge, concurring and dissenting:

I concur in the affirmance of the defendant's conspiracy
conviction, but I respectfully dissent from the reversal of
his conviction for conducting a continuing criminal
enterprise (CCE), in violation of 21 U.S.C. S 848. The
majority reverses that conviction because of an error in the
CCE jury instruction, viz., the omission of an instruction
specifically advising, as our court held in United States v.
Edmonds, 80 F.3d 810 (3d Cir. 1996) (in banc), that the
jurors were required to agree unanimously on the three
CCE predicates that the defendant committed. Unlike the
majority, I do not think that the defendant's trial counsel
objected to this omission, as Rule 30 of the Federal Rules
of Criminal Procedure demands. I therefore believe that the
question before us in this appeal is whether the challenged
omission constituted "plain error" (Fed. R. Crim. P. 52(b)),
and I do not think that the demanding test for "plain error"
is met here.

1. Before discussing defense counsel's failure to object to
the instruction in question, I think that it may be helpful to
provide some background regarding the unanimity
requirement that is involved in this appeal. In order to be
convicted under 21 U.S.C. S 848 for conducting a
continuing criminal enterprise, a defendant must have
committed a felony violation of the federal drug laws, and
this violation must be "a part of a continuing series" of
such violations. In United States v. Echeverri, 854 F.2d 638,
642 (3d Cir. 1988), a panel of our court held that a "series"
in this context means at least three violations. Id. The panel
further held that the jury must agree unanimously on the
three violations that are used to support a CCE conviction
and that a trial judge must, on request, give a jury
instruction specifically setting out this unanimity
instruction. Id. at 642-43.

In Edmonds, a later CCE prosecution, the district court
refused to give such an instruction, and a panel of our
court held that this refusal required reversal. In a
concurring opinion, Judge Hutchinson observed that, if the
panel had not been bound by Echeverri, he would have
been "inclined to follow the reasoning of the Seventh Circuit
in United States v. Canino, 949 F.2d 928, 947-948 (7th Cir.

22
1991), cert. denied, [503 U.S. 996 and cert. denied, 504
U.S. 910 (1992)]," which held that the jurors in a CCE case
need not agree unanimously on the particular CCE
predicates. Slip op. at 26 (Hutchinson, J., concurring).
Similarly, Judge Garth, in concurrence, stated that he
"shar[ed] Judge Hutchinson's concerns regarding the
Echeverri doctrine." Slip op. at 28 (Garth, J., concurring in
part and dissenting in part). He added that he perceived
"conceptual tension" between Echeverri and our court's
decision in United States v. Jackson, 879 F.2d 85 (3d Cir.
1989), in which we held that jurors need not agree
unanimously on the identities of the five or more persons
that a CCE defendant organized, supervised, or managed.
Slip op. at 28 (Garth, J., concurring in part and dissenting
in part). Judge Garth suggested that this tension"call[ed]
for further resolution." Id.

The panel opinion in Edmonds was filed on April 18,
1995, and Russell's trial commenced a few weeks later, on
June 5, 1995. On June 29, 1995, during the course of that
trial, the government's petition for rehearing in banc in
Edmonds was granted and the panel opinion was vacated.
Russell's jury was instructed on July 12, 1995 -- after
Edmonds was listed for rehearing in banc and well before
that case was reargued (October 25, 1995) and the in banc
decision was handed down (April 4, 1996).

In Edmonds, the full court held, by a narrow vote, that
the CCE statute requires that jurors agree unanimously on
the particular CCE predicates. The court further held that
the district court's refusal to give a specific unanimity
instruction was erroneous but that the error was harmless.
For the reasons set out in my concurring opinion and
Judge Garth's concurring opinion in Edmonds, I continue
to believe that the CCE statute does not contain any such
special unanimity instruction, but I recognize that we are
bound to follow that holding here.

2. With this background in mind, I turn to the que stion
whether defense counsel in this case adequately objected to
the instruction on which the majority relies. Rule 30 of the
Federal Rules of Criminal Procedure provides in pertinent
part as follows:

23
 No party may assign as error any portion of the charge
or omission therefrom unless that party objects thereto
before the jury retires to consider its verdict, stating
distinctly the matter to which that party objects and
the grounds of the objection.

This is a vitally important rule. It promotes judicial
economy by eliminating unnecessary appeals and retrials.
More important, because appellate reversals and retrials
produce delay, and because delay often results in the loss
or impairment of evidence, Rule 30 serves to promote
accuracy in jury verdicts. As the majority points out, a
lawyer is not required to use any special language to satisfy
Rule 30; the lawyer must simply use words that are
reasonably calculated to get the message across. In this
case, however, defense counsel did not do so.

After the district court judge completed his charge, he
asked whether counsel had any objections. Supp. App. at 6.9
Defense counsel then objected to the trial judge's failure to
cover two instructions requested by the defense, i.e.,
number 51 and number 43. Id. at 7-8. Neither of these
requested instructions had anything to do with the issue of
jury unanimity regarding particular CCE predicates. After
the district court ruled on these two matters, the following
exchange occurred:

THE COURT: Do you have anything else?

MR. TRAVIS [defense counsel]: No, Your Honor.

Id. at 9.

The jury then retired to deliberate and subsequently sent
out a note requesting "a limited reading of the Judge's
charge as to count one [the CCE count]." App. at 2155.10 In
response, the court proposed to read virtually the entire
charge concerning the CCE count, and both counsel
agreed. Id. at 2156. As a result, the district court once
again read to the jury the portion of the charge that the
_________________________________________________________________

9. "Supp. App." refers to the Supplemental Appendix filed by the
government.

10. "App." refers to the appendix filed by the appellant.

24
defendant now challenges on appeal. The following then
occurred:

THE COURT: ...Do you have any objection to those
instructions, counsel?

MR. ROCKTASHEL [the prosecutor]: No, Your H onor.

THE COURT: Do you, sir?

MR. TRAVIS [defense counsel]: No, Your Hono r.

Id. at 2163-64.

Thus, defense counsel twice told the trial judge that he
had no objection to the jury instruction that is challenged
in this appeal. Moreover, defense counsel never mentioned
or referred even obliquely to Edmonds during the colloquy
devoted to objections to the instructions. Accordingly,
defense counsel did not, in my view, adequately convey to
the trial judge the simple message that was necessary in
order to comply with Rule 30, i.e., "Judge there's a mistake
in the jury charge. It doesn't tell the jurors that they must
agree unanimously regarding the three CCE predicates."

It is true that defense counsel did subsequently mention
Edmonds, but he did so in connection with an entirely
different question, i.e., whether the district court should
give the jury a special verdict sheet concerning the CCE
predicates. Some time after the colloquy concerning the
jury instructions, the court stated:

Now, there is one other thing, and that is ... I
understood you to say, Mr. Travis, that there were
certain specific findings that were required under
Count One.

July 12, 1995 Tr. at 70. Defense counsel then referred to
the panel decision in Edmonds (which, as previously noted,
had been filed on April 18, 1995, but vacated on June 29,
1995, when rehearing in banc was granted). Defense
counsel stated: "[T]he impression I had was that you had to
give [the jurors] a special verdict page where they said,
these are the three violations ..." App. at 2143. The court
asked:

THE COURT: Well what are you asking that we do?

25
Id. Defense counsel responded as follows:

Well I -- you asked about the form, the form of the
verdict and whether I thought that there was any
change that needed to be made. I was attempting to
point out that my interpretation of [Edmonds] seems to
suggest that there is a need for a special verdict page
that requires the jury to fill in three blank lines of
which three federal felony offenses they have
unanimously agreed upon having been committed by
the Defendant, if they agree on that element.

Id. (emphasis added). The district court judge said that he
would read the Edmonds panel opinion, but he observed
that he thought that "there's a general reluctance on the
Court of Appeals to require any special verdict forms in
criminal cases." App. at 2144. Later, the court decided not
to give the jury a special verdict sheet, and the defendant
does not challenge that decision on appeal.

I disagree with the majority's conclusion that defense
counsel, by requesting a special verdict sheet, adequately
conveyed to the district court the message that the court's
jury instruction was inconsistent with the Edmonds panel
decision. As noted, defense counsel, by this point, had
twice failed to object to the challenged jury instructions,
and when defense counsel finally mentioned Edmonds and
the trial judge pointedly asked, "Well, what are you asking
that we do" (App. at 2143), defense counsel's only request
was that the court give the jury a special verdict sheet. Id.

In my view, the question whether a trial judge is required
to give a special instruction on jury unanimity in a CCE
case is separate from the question whether a trial judge is
required to use a special verdict sheet. Although the
Edmonds panel and in banc decisions held that it is error
to decline to give a special jury unanimity instruction when
one is requested, neither the Edmonds panel opinion nor
the Edmonds in banc opinion requires a special verdict
sheet. On the contrary, we have held that, as a general
matter, a district court "has discretion in determining
whether to submit special interrogatories to the jury
regarding the elements of an offense." United States v.
Console, 13 F.3d 641, 663 & n.23 (3d Cir. 1993). By

26
obscuring the important distinction between an objection to
a jury instruction and a request for a special verdict sheet,
the majority, I believe, has committed a serious error.

In addition to relying on defense counsel's request for a
special verdict sheet, the majority also relies on the
defendant's proposed jury instruction number 41, which
stated in pertinent part that the jury was required to "agree
unanimously on the three acts which constitute the
continuing series of Federal Drug Law violations." See Maj.
Op. at 12 n.7 (quoting Supp. App. 25). If defense counsel
had objected to the court's charge on the ground that it
failed to cover this point, and if the district court had
nevertheless declined to cover that point, then this case
would be indistinguishable from Edmonds, and I would join
the majority in voting to reverse. However, that is not what
occurred. After the district court completed its jury
instructions and asked defense counsel whether he had
any objections, defense counsel referred to the 93 pages of
proposed instructions that he had submitted and asked
whether he could assume that any instruction that had not
been given should be "deemed denied." Supp. App. at 6.
The court rejected this suggestion and instructed defense
counsel to assert any objections he had to the instructions
that the court had given. Id. Then, as previously noted,
defense counsel argued that the court had erred in failing
to cover two of the requested defense instructions, i.e.,
numbers 51 and 43. Id. at 7-8. Defense counsel made no
reference to instruction number 41, and therefore it seems
to me that, simply by including that instruction in the large
packet of requested defense instructions, the defense did
not fulfil its obligation under Rule 30 to assert an objection
to the court's instructions and state "distinctly the matter
to which th[e] party objects and the grounds of the
objection."

For these reasons, I would hold that defense counsel did
not adequately object at trial to the jury instruction that is
now challenged on appeal. Consequently, I believe that our
review is limited to determining whether the district court's
instruction constituted "plain error." Fed. R. Crim. P. 52(b).

3. As noted, the in banc court held in Edmonds that, in
order to find a defendant guilty under the CCE statute, 21

27
U.S.C. S 848, a jury must unanimously agree that the same
three related predicate offenses occurred. The court further
held that the district court in that case erred in rejecting a
defense request for an instruction specifically advising the
jurors that they were required to agree unanimously on
which three related violations occurred.

The instruction challenged in this case did not
affirmatively mistake the law, as interpreted in Edmonds.
The instruction did not advise, contrary to Edmonds, that
it was unnecessary for the jurors to agree unanimously
regarding the three CCE predicate offenses that occurred.
In the challenged instruction, the district court stated:

The phrase, a continuing series of violations means
three or more violations of the federal narcotics laws
which are in some way -- laws which are in some way
related to each other. In order to find that this element
has been established, you must unanimously agree that
the Defendant, Mr. Russell, participated in some way in
at least three or more violations of the federal narcotics
laws which are in some way related to each other.

App. at 2094. See also App. at 2158-59. As far as it went,
this instruction was entirely accurate: in order for the jury
to find that Russell violated 21 U.S.C. S 848, it was
necessary that they "unanimously agree that . . . Mr.
Russell participated in some way in at least three or more
violations of the federal narcotics laws which are in some
way related to each other." App. at 2094. The problem with
this instruction is not that it was inaccurate but that it was
incomplete: it did not go on and explain to the jurors that
they were required, not only to agree unanimously that
Russell committed three CCE predicates, but to agree
unanimously with respect to the three particular predicates
that he committed.

In my view, this failure to provide the jury with a more
complete and specific explanation of the unanimity
requirement in a CCE case does not amount to "plain
error." In United States v. Olano, 507 U.S. 725 (1993), the
Supreme Court held that, in order for an appellate court to
find plain error, it must first find 1) an error 2) that is plain
and 3) that affects substantial rights. Even if all three of

28
these prerequisites are met, an appellate court may correct
an error to which no objection was made "only if (4) the
error `seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.' " Johnson v. United
States, 117 S. Ct. 1544, 1549 (1997) (quoting Olano, 507
U.S. at 732) (internal quotation marks omitted).

Here, I agree that the first of these four requirements
(there was an error) was met. But I do not believe that the
second requirement (the error was "plain") was satisfied,
and therefore I need not consider the third or fourth
requirement.

" `Plain' is synonymous with `clear' or, equivalently,
`obvious.' " United States v. Olano, 507 U.S. at 734. As we
have explained:

To find plain error, the mistake must be sufficiently
obvious that "the trial judge and prosecutor were
derelict in countenancing it, even absent the
defendant's timely assistance in detecting it."

Government of Virgin Islands v. Knight, 989 F.2d 619, 632
(1993) (quoting United States v. Frady, 456 U.S. 152, 163
(1982)). In my view, the omission in this case was not
"sufficiently obvious that `the trial judge and prosecutor
were derelict in countenancing it, even absent the
defendant's timely assistance in detecting it.' " Knight, 983
F.2d at 632 (quoting Frady, 456 U.S. at 163). The omission
was simply a mistake, the sort of mistake that would have
constituted reversible error had defense counsel called it to
the trial judge's attention as required by Rule 30, but a
mistake that falls short of constituting "plain error." "The
Supreme Court has admonished courts of appeals to
characterize a mistake as plain error `sparingly, solely in
those circumstances in which a miscarriage of justice
would otherwise result.' " Knight, 989 F.2d at 631 (quoting
United States v. Young, 470 U.S. 1, 15 (1985). "Reviewing
courts are not to use the plain-error doctrine to consider
trial court errors not meriting appellate review absent
timely objection." United States v. Young, 470 U.S. at 16.
That, in my judgment, is what the majority has done here.
For that reason, I dissent from the reversal of the
defendant's CCE conviction.

29
A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

30