U.S. v. Jackson, 87-1709

• Decision Date: 03 August 1989
• Docket Number: No. 87-1709,87-1709
• Citation: 879 F.2d 85
• Parties: UNITED STATES of America v. Carl JACKSON, a/k/a "Better Days", Carl Jackson, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 85

879 F.2d 85

UNITED STATES of America v. Carl JACKSON, a/k/a "Better Days", Carl Jackson, Appellant.

No. 87-1709.

United States Court of Appeals, Third Circuit.

Argued Feb. 7, 1989.

Decided July 11, 1989.

Rehearing and Rehearing In Banc Denied Aug. 3, 1989.

Joseph M. Gontram (argued), McBride, Ruch & Gontram, Philadelphia, Pa., for appellant.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Chief of Appeals, Joseph T. Labrum, III (argued), Asst. U.S. Attys., Philadelphia, Pa., for appellee.

Before SLOVITER, BECKER, and WEIS, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. Introduction

Appellant Carl Jackson was convicted on a multi-defendant, multi-count indictment arising out of a widespread conspiracy to import Phenyl-2-Propanone (P-2-P), a controlled substance, and to manufacture and distribute methamphetamine. Jackson was convicted of one count of conspiracy in violation of 21 U.S.C. Sec. 846 (1982) (Count One), one count of importation of P-2-P in violation of 21 U.S.C. Secs. 952(a) (Supp.1987), 960(a) & (b)(2) (1982 & Supp.1987) (Count Two), three counts of possession of P-2-P with intent to manufacture methamphetamine (Counts Three, Twelve, Thirteen), one count of possession of methamphetamine (Count Ten), and three counts of manufacturing methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1) (1982) (Counts Five, Six, Nine). Finally and most significantly for purposes of this appeal, Jackson was convicted of conducting a continuing criminal enterprise (CCE) in violation of 21 U.S.C. Sec. 848 (1982 & Supp.1987) (Count Forty).

Jackson received a life sentence without parole on Count Forty, the CCE charge, and a $100,000 fine. Jackson received a five-year sentence on Count One, which merged with the sentence on Count Forty. On each of Counts Two, Three, Five, Six, and Nine he received five-year sentences to run consecutively with each other and to run concurrently with the sentence on Count Forty. Jackson also received a $15,000 fine on each of these counts. On each of Counts Ten, Twelve, and Thirteen Jackson received five-year sentences to run concurrently with each other and concurrently with the sentences on Counts Two, Three, Five, Six, and Nine.

On this appeal, Jackson contests only the convictions on Counts Five, Six, and Forty. His challenge to Counts Five and Six is that the government failed to prove that the conduct charged in those counts occurred within the relevant limitations period. The more serious challenge, directed toward his conviction on the CCE charge, is that the district court erred by failing to give a specific unanimity instruction regarding a statutory element of the CCE charge.

II. Facts

The government produced overwhelming evidence of Jackson's involvement in the importation of P-2-P and the manufacture and distribution of methamphetamine between 1981 and 1984. Of relevance to this appeal is Jackson's role in the importation of a "drum" of P-2-P from Canada. The government produced substantial evidence that Jackson arranged to have a co-conspirator, Richard Coccoli, ship 200 kilograms of P-2-P from Germany to Canada, and that Coccoli received the P-2-P on April 20 or 21, 1982. Jackson and other co-conspirators, including customs agent David Steinkamp, traveled to Canada and transported the P-2-P to the Philadelphia area on or about April 23, 1982. Rudolph Bors testified that he "cooked" some of the P-2-P obtained from Canada on the upper floor of a building housing a flower shop located in Philadelphia, producing 45 pounds of methamphetamine. This "cook" formed the basis of Count Six. Bors also testified that he subsequently supervised a "cook" at the residence of Albert Kessler, which became the basis for Count Five.

The government produced evidence that Jackson supervised the individuals involved in the transactions described above, as well as numerous other individuals in the transactions which formed the basis of the other substantive counts. There was sufficient evidence that at varying times during the conspiracy Jackson exercised supervisory or managerial authority over more than twenty individuals. The indictment identified at least thirteen individuals who allegedly acted under orders from Jackson.

III. Discussion

A. Unanimity

Jackson's most substantial argument on appeal challenges his conviction on Count Forty of conducting a continuing criminal enterprise. The CCE statute provides in pertinent part that:

For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if--

(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter--

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources.

21 U.S.C. Sec. 848(b) (1982) (currently codified at 21 U.S.C.A. Sec. 848(c) (Supp.1989)).

Jackson requested that the trial judge instruct the jury that it could return a conviction on the CCE count only if "all twelve members of the jury agree on the same five or more such persons." App. at 78. Although the trial court clearly instructed the jury that the government must prove beyond a reasonable doubt that Jackson occupied a position as an organizer, a supervisory position or position of management with respect to five persons, it declined to give Jackson's requested instruction. Instead, it gave only a generalized unanimity instruction: "The verdict must be unanimous. You must all agree." App. at 628.

Jackson argues that juror unanimity is a constitutional requirement and that the identity of the five subordinates is an element of the CCE offense. Therefore, he continues, because the government had identified more than twenty people as being Jackson's subordinates, ¹ the jury could have reached a guilty verdict without unanimous agreement as to which individuals Jackson had actually managed.

We note as an initial matter that those circuits which have considered this precise issue have declined to require that the district court give a specific unanimity instruction as to the identities of the five or more underlings required to sustain a CCE charge. See United States v. Tarvers, 833 F.2d 1068, 1073-75 (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). See also United States v. Raffone, 693 F.2d 1343, 1347-48 (11th Cir.1982), cert. denied, 461 U.S. 931, 103 S.Ct. 2094, 77 L.Ed.2d 303 (1983) (absent a request to do so trial court's failure to give such an instruction was not plain error). In fact, the First Circuit upheld a jury charge that explicitly stated that the jurors did not have to agree unanimously on the identities of the five persons involved. See Tarvers, 833 F.2d at 1074. The rationale of these cases is that there is no unanimity requirement as to "specific fact[s] underlying an element," id., and that the CCE statute itself is only concerned with the size of the enterprise, not the identities of the underlings, Markowski, 772 F.2d at 364.

Although we are persuaded by the commonsense rationale articulated by the First and Seventh Circuits, we are bound to analyze this issue in light of our own case law on unanimity. Our analysis begins with the generally established principle, which we have previously enunciated, that, "[i]n the routine case, a general unanimity instruction will ensure that the jury is unanimous on the factual basis for a conviction, even where an indictment alleges numerous factual bases for criminal liability." United States v. Beros, 833 F.2d 455, 460 (3d Cir.1987) (citations omitted).

In Beros, however, we qualified this general principle by holding that where the complexity of a case or other factors create the potential for confusion as to the legal theory or factual basis which sustains a defendant's conviction, a specific unanimity instruction is required. Id. at 460-63. In that case, because the government charged several criminal acts, any of which alone could have supported the offense charged, and the trial court's instruction failed to provide sufficient guidance to assure that all members of the jury were unanimous on the same act or acts of illegality, we held that the district court committed reversible error by refusing defendant's request for a unanimity instruction.

Thereafter, in United States v. Echeverri, 854 F.2d 638, 643 (3d Cir.1988), we relied on Beros in holding that where the government based its CCE charge on a continuing series of three drug-related offenses, and there was evidence tending to show numerous alleged violations, any three of which could have been the focus of a particular juror, the district court's general unanimity instruction was insufficient. We stated that with respect to judicially as well as statutorily imposed elements of offenses "[a] defendant is entitled to have the court insist on unanimous agreement as to all essential elements of the crime charged." Id.

Defendant does not argue, and indeed there is no authority that would require, that jurors must be unanimous as to the evidentiary basis for their decision. If we read the broad language of Echeverri as requiring unanimous agreement as to the identities of the persons supervised in a CCE charge, there would be no principled reason not to require such an instruction as to virtually every factual element in any conspiracy count, including the identities of co-conspirators and the overt acts. Jackson has cited no cases holding that unanimity as to these elements has ever been required in this or any other circuit, nor has our independent research...