U.S. v. Hall, 94-5739

Citation93 F.3d 126
Decision Date19 August 1996
Docket NumberNo. 94-5739,94-5739
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Wainsworth Marcellus HALL, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: George Alan DuBois, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Fernando Groene, Assistant United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Norfolk, Virginia, for Appellee.

Before WILKINSON, Chief Judge, and NIEMEYER and HAMILTON, Circuit Judges.

Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Judge HAMILTON joined.

OPINION

WILKINSON, Chief Judge:

Wainsworth Marcellus Hall was convicted in 1994 of three offenses: (1) conspiracy to possess with intent to distribute cocaine, cocaine base, and marijuana, 21 U.S.C. § 846; (2) engaging in a continuing criminal enterprise (CCE), 21 U.S.C. § 848; and (3) conspiracy to launder money, 18 U.S.C. §§ 1956(a)(1)(B)(i) and 371. Hall appeals his convictions on four grounds--that the jury instructions on the CCE count were erroneous, that notes of interviews with government witnesses should have been examined in camera by the district judge, that his trial should have been severed from that of his codefendants, and that the drug amounts attributed to him were overstated. We disagree with each of Hall's contentions and affirm the judgment of the district court.

I.

Appellant Hall and his brother, Peter Hall, ran a cocaine distribution network between New York City, Virginia, and various other eastern seaboard states. Hall, who lived in New York, regularly sent powdered cocaine to his brother in Tidewater, Virginia, who then cooked the powder into cocaine base and distributed it throughout the state. Hall also distributed cocaine powder and base in New York.

A courier for the Hall organization, John Stokes, was interviewed by government attorneys and law enforcement officers during the preparation of this case. Hall requested production of the notes taken at these interviews, but the trial court denied the request on the grounds that Stokes had not reviewed or adopted the documents. Similarly, the court denied Hall's request for production of notes taken during the interview of another of Hall's drug associates, Christopher Hamlin.

Hall was tried along with two co-conspirators, one of which pled guilty part way through trial and the other of which was acquitted of all charges. A number of Hall's co-conspirators, including several drug couriers, testified against him at trial. Many of them fingered Hall as a leader in the drug ring.

The jury found Hall guilty on the three charges. Hall received a sentence of life in prison.

II.

The elements of a continuing criminal enterprise violation are well established. The government must prove that: (1) the defendant committed a felony violation of federal narcotics laws; (2) the crime was part of a "continuing series" of such violations; (3) the series of violations was undertaken in agreement with at least five other persons; (4) the defendant managed, supervised, or organized these other persons; and (5) the defendant received substantial income or resources from the enterprise. United States v. Ricks, 882 F.2d 885, 890-91 (4th Cir.1989), cert. denied, 493 U.S. 1047, 110 S.Ct. 846, 107 L.Ed.2d 841 (1990); see 21 U.S.C. § 848.

Hall contends that the jury instructions on the CCE count were defective in several respects. We shall address his challenges in turn.

A.

Hall first claims that the judge failed to properly explain the "continuing series" element of the CCE offense. A "continuing series" consists of at least three related felony narcotics violations, including the one charged. See United States v. Young, 745 F.2d 733, 747 (2d Cir.1984) (citing cases), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). Here the district judge instructed the jury that it must decide whether a "continuing series" had been proven, and further explained as follows:

[Y]ou must find beyond a reasonable doubt that ... the conduct charged in this count, together with any additional violations of the drug laws, constituted a total of three or more violations of the federal drug laws committed over a period of time with a single or similar purpose.

Hall argues that the judge erred by failing to instruct the jury that it must unanimously agree that the three or more drug violations were "related" to each other.

We disagree. The district court explained to the jury that the federal narcotics violations must constitute a "continuing series" and this was enough. There was no need to instruct on any requirement of "relatedness." Hall's argument ignores the fact that the very phrase, "continuing series," denotes related events. Moreover, the instructions required the jury to find three offenses "committed over a period of time with a single or similar purpose," which is tantamount to requiring that they be related to one another. Offenses can hardly share a "similar purpose" if they are not connected. There was no reason for the district court to elaborate on a term already defined by the statute and amply covered in the instructions.

In fact, we are especially loathe to find reversible error when Hall received a more generous instruction than the statute requires. The district judge instructed the jury to "unanimously agree on which three acts constitute[d] the continuing series of violations." The statute, however, demands only that the jurors agree that there was a continuing series, not that they agree on which offenses make up that series. Specifically, the statute requires a finding of a felony offense which is part of "a continuing series of violations." Under the plain meaning of this section, as long as each juror is satisfied in his or her own mind that the defendant committed acts constituting the series, the requisite jury unanimity exists. As the Seventh Circuit noted:

It seems clear from the statute that the point of the CCE is to impose special punishment on those who organize and direct a "continuing" drug distribution system, the nature of which is evidenced by proof of the defendant's commission of a threshold number of criminal drug violations--a "continuing series." ... [W]e hold that once each juror finds beyond a reasonable doubt that a CCE defendant committed at least two predicate offenses the purpose of the CCE is satisfied, and the defendant is suited for punishment consistent with the statute. We do not require that the jurors unanimously agree as to the same predicate acts; this we feel will result in unjustified acquittals frustrating the important policy goals of the CCE.

United States v. Canino, 949 F.2d 928, 947-48 (7th Cir.1991) cert. denied, 504 U.S. 910, 112 S.Ct. 1940, 118 L.Ed.2d 546 (1992). 1

In short, we cannot accept Hall's claims of error with respect to the "continuing series" element of the CCE offense.

B.

Hall also argues that the jurors were confused about the five-person element of the CCE charge. The jury instructions on this element stated:

The government must prove beyond a reasonable doubt ... [that] the defendant Wainsworth Marcellus Hall and at least five or more other persons were part of an agreement or joint action to commit the continuing series of violations of the federal narcotics laws.

Hall asserts that the jury should have been told that it must be unanimous as to which five people satisfied this element.

This contention is simply wrong. Nothing in the statute requires jury unanimity on which five people were in agreement, as long as each juror finds that some five persons were in agreement. In fact, we have so held. United States v. Tipton, 90 F.3d 861, 885-86 (4th Cir.1996). Almost every other circuit has held likewise. See United States v. Rockelman, 49 F.3d 418, 421 (8th Cir.1995); United States v. Harris, 959 F.2d 246, 255 (D.C.Cir.), cert. denied, 506 U.S. 932, 113 S.Ct. 362, 121 L.Ed.2d 275 (1992); United States v. Moorman, 944 F.2d 801, 803 (11th Cir.1991), cert. denied, 503 U.S. 1007, 112 S.Ct. 1766, 118 L.Ed.2d 427 (1992); United States v. English, 925 F.2d 154, 159 (6th Cir.), cert. denied, 501 U.S. 1210, 111 S.Ct. 2810, 115 L.Ed.2d 983 (1991); United States v. Linn, 889 F.2d 1369, 1374 (5th Cir.1989), cert. denied, 498 U.S. 809, 111 S.Ct. 43, 112 L.Ed.2d 19 (1990); United States v. Jackson, 879 F.2d 85, 87-88 (3d Cir.1989); United States v. Tarvers, 833 F.2d 1068, 1074-75 (1st Cir.1987); United States v. Markowski, 772 F.2d 358, 364 (7th Cir.1985), cert. denied, 475 U.S. 1018, 106 S.Ct. 1202, 89 L.Ed.2d 316 (1986). But see United States v. Jerome, 942 F.2d 1328, 1331 (9th Cir.1991). The district court's instruction was thus accurate.

C.

Finally, Hall objects to the instruction on the requirement that he supervised or organized the other members of the enterprise. That instruction included the following:

[T]he government must prove ... beyond a reasonable doubt ... [that] [t]he defendant Wainsworth Marcellus Hall was an organizer of [ ] five or more other persons or occupied a management or supervisory position with respect to these five or more other persons....

....

The term organizer and the term supervisory position and position of management are to be given their usual and ordinary meanings. These words imply the exercise of power or authority by a person who occupies some position of management or supervision.

According to Hall, the jury should further have been told that individuals who had only buyer-seller relationships with Hall were not supervised or organized by him. United States v. Butler, 885 F.2d 195, 201 (4th Cir.1989).

The instructions plainly allowed the jury to understand the supervisory requirement. The "usual and ordinary" meaning of manager or supervisor does not include a mere buyer-seller relationship. Buyer-seller relationships are not characterized by ...

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