U.S. v. Russell

• Decision Date: 16 January 1998
• Docket Number: No. 96-7760,96-7760
• Citation: 134 F.3d 171
• Parties: UNITED STATES of America, v. James RUSSELL, aka Gaith Junior Douglas, aka Steven Shawn Jones, James Russell, a/k/a Steven Shawn Jones, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 171

134 F.3d 171

UNITED STATES of America, v. James RUSSELL, aka Gaith Junior Douglas, aka Steven Shawn Jones James Russell, a/k/a Steven Shawn Jones, Appellant.

No. 96-7760.

United States Court of Appeals Third Circuit.

Argued Aug. 11, 1997.

Decided Jan. 16, 1998.

Michael J. Zicolello (argued), Schemery & Zicolello, Williamsport, PA, for Appellant.

George J. Rocktashel (argued), Office of United States Attorney, Williamsport, PA, for Appellee.

Before: ALITO, LEWIS and McKEE, Circuit Judges.

OPINION OF THE COURT

LEWIS, Circuit Judge.

James Russell was convicted of conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846, and conducting a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 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. § 853(p). App. at 53. Three of Russell's co-defendants, Mark Smith, Richard 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 use of the guns during particular drug transactions, the government introduced evidence, over Russell's objection, pertaining to his arrest in 1991 in Maple Shade, New Jersey. At the time of this 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 to assault George Felder. Grimes testified that in October 1994, he and Russell assaulted Felder because Felder had 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 § 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 coconspirators 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 § 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. § 3231, and we have jurisdiction under 28 U.S.C. § 1291.

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. § 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.").

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, 519 U.S. 482, 117 S.Ct. 921, 137 L.Ed.2d 107 (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...