U.S. v. Edmonds

Citation80 F.3d 810
Decision Date04 April 1996
Docket NumberNo. 93-1890,93-1890
PartiesUNITED STATES of America v. Theodore EDMONDS, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 92-cr-00504-1).

Michael R. Stiles, United States Attorney (argued), Walter S. Batty, Jr., Jeffrey W. Whitt, Valli F. Baldassano, Assistant United States Attorneys, Philadelphia, PA, for Appellee.

Domnick J. Sorise (argued), Clinton Township, MI, for Appellant.

Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE, SAROKIN, and GARTH, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

A federal jury convicted appellant Theodore Edmonds of violating the Continuing Criminal Enterprise statute ("CCE"), 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 banc 1 rehearing gives us the opportunity to reconsider Echeverri. The question of the degree of jury unanimity required by the CCE statute is a difficult one, and other courts of appeals have disagreed with Echeverri 's resolution, see, e.g., United States v. Canino, 949 F.2d 928 (7th Cir.1991), cert. denied, 504 U.S. 910, 112 S.Ct. 1940, 118 L.Ed.2d 546, and cert. denied sub nom. Flynn v. United States, 503 U.S. 996, 112 S.Ct. 1701, 118 L.Ed.2d 410 (1992). Nevertheless, guided by historical tradition in criminal jurisprudence, constitutional considerations, and the rule of lenity, we reaffirm Echeverri and hold that the CCE statute requires juror unanimity as to the identity of the related violations comprising the continuing series.

In view of this holding, we must also decide whether the district court's failure to give the proper unanimity instruction was harmless error. This task requires us to examine the scope of Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), which held that an erroneous reasonable doubt instruction cannot be harmless because such error undermines an essential premise of harmless error analysis--the existence of an actual verdict of guilty beyond a reasonable doubt. Id. at 280-81, 113 S.Ct. at 2082.

We conclude that Sullivan does not preclude harmless error analysis in this case. Unlike the verdict in Sullivan, in which an erroneous reasonable doubt instruction undermined all of the jury's findings, the jury in this case delivered valid findings on essentially all of the elements of the offense by convicting Edmonds of every violation alleged to constitute the continuing series. These convictions do not themselves show unanimous agreement that the same three violations were sufficiently related to each other to constitute a continuing series. However, the evidence that the jury must have credited to find Edmonds guilty of the predicate violations unequivocally 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' 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. § 843(b); and four counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) & (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.

The court rejected Edmonds's request that it explain to the jurors that they must unanimously agree on which three related violations occurred. Instead, the court gave only general unanimity instructions. ("You are asked to deliberate with a view towards reaching a unanimous decision with respect to each count and each defendant charged here in this indictment."). The jury convicted Edmonds of all counts.

A panel of this Court reversed Edmonds's CCE conviction. The panel's decision was based on United States v. Echeverri, which held that a district court's refusal to give a specific unanimity instruction in a CCE trial is reversible error. See Echeverri, 854 F.2d at 643. The panel found Echeverri controlling despite a significant difference between the two cases. In Echeverri, the government had introduced evidence of a plethora of drug-related activity to establish the continuing series, and, because the jury did not hand down verdicts on the separate predicate offenses, it was unclear whether the jury agreed that the same three predicate violations occurred. See id. at 642-43. In contrast, Edmonds's jury convicted him of each of the narcotics violations alleged to constitute the continuing series, and hence it must have unanimously agreed that Edmonds committed every violation in the alleged series. Nevertheless, the panel found Echeverri controlling because the jury may not have agreed on which three offenses were related to each other. 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. 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 Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), barred it from engaging in harmless error analysis. Sullivan held that a constitutionally deficient reasonable doubt instruction cannot be harmless because the error precludes the existence of a guilty verdict upon which harmless error scrutiny could operate. Id. at 280-81, 113 S.Ct. at 2082. 3 Analogizing lack of jury unanimity to an unconstitutional definition of reasonable doubt, the panel held that "there has been no actual jury finding of guilty on the CCE charge," and thus that it could not rule that the error was harmless. Edmonds, 52 F.3d at 1244.

The government petitioned for rehearing, arguing that Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), and United States v. Jackson, 879 F.2d 85 (3d Cir.1989), have undermined Echeverri 's specific unanimity holding; the government also attacked the panel's harmless error analysis. We granted the petition and reheard the case in banc.

II. The CCE Statute & Specific Juror Unanimity

To convict a defendant under the CCE statute, the government must prove: (1) that the defendant committed a felony violation of a provision of United States Code Title 21, Chapter 13, subchapter I or II (various drug offenses); (2) that this violation was part of a "continuing series" of violations of these subchapters; (3) that the defendant, in committing the continuing series of violations, acted as an organizer, supervisor, or manager of five or more other persons; and (4) that the defendant obtained "substantial income or resources" from such activities. 4

Only the second requirement--that the defendant committed a felony as part of a continuing series of violations--is at issue in this appeal. We have held, as have most courts of appeals, that a "series" consists of at least three predicate violations. See Echeverri, 854 F.2d at 643; see also, e.g., United States v. Hernandez-Escarsega, 886 F.2d 1560, 1570 (9th Cir.1989), cert. denied, 497...

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