U.S. v. Montalvo, 01-17046.

Citation331 F.3d 1052
Decision Date09 June 2003
Docket NumberNo. 01-17046.,01-17046.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael L. MONTALVO, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

David M. Porter, Assistant Federal Defender, Sacramento, California, argued for the defendant-appellant. Quin Denvir, Federal Defender, and Carolyn M. Wiggin, Assistant Federal Defender, Sacramento, CA, joined him on the briefs.

Thomas E. Flynn, Assistant United States Attorney, Sacramento, CA, argued for the plaintiff-appellee. John K. Vincent, United States Attorney, Sacramento, CA, joined him on the brief.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, District Judge, Presiding. D.C. No. CR-89-00062-1-WBS.

Before KOZINSKI and KLEINFELD, Circuit Judges, and REED, JR.,* District Judge.

PER CURIAM Opinion; Concurrence by Judge KOZINSKI.

OPINION

PER CURIAM.

We consider whether the new rule announced in Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), is retroactively applicable to criminal convictions that had become final by the time of the Supreme Court's decision.

I

Montalvo was charged with one count of conspiracy to possess with intent to distribute cocaine, 21 U.S.C. § 846, and one count of engaging in a continuing criminal enterprise (CCE), 21 U.S.C. § 848. The jury convicted him of the CCE count, and the trial judge sentenced him to life imprisonment. Conspiracy being a lesser included offense of a CCE violation, Rutledge v. United States, 517 U.S. 292, 300, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), the jury did not render a verdict on the conspiracy charge.

After numerous unsuccessful appeals on direct review, Montalvo's conviction became final in 1996 when the Supreme Court denied his petition for certiorari. See Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Three years later, the Supreme Court decided Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), where it interpreted, for the first time, the phrase "a continuing series of violations" in 21 U.S.C. § 848(c)(2).

The CCE statute reads:

[A] person is engaged in a continuing criminal enterprise if —

(1) he violates any provision of [these subchapters] the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of [these subchapters]

(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. § 848(c) (emphasis added).

Richardson held that a jury "must unanimously agree not only that the defendant committed some `continuing series of violations' but also that the defendant committed each of the individual `violations' necessary to make up that `continuing series.'" 526 U.S. at 815, 119 S.Ct. 1707 (emphasis added). If a "series" requires three or more violations, United States v. Valenzuela, 596 F.2d 1361, 1367 (9th Cir.1979), Richardson demands that the jury unanimously agree on at least three specific predicate felonies that constitute the "continuing series" before it may convict.

Here, the government alleged that Montalvo was involved in thirteen felony drug offenses. Suppose Jurors I-VI found that Montalvo had committed crimes 1-3 and nothing else, and Jurors VII-XII found that Montalvo had committed crimes 4-6 and nothing else. Under Richardson's unanimity requirement, the jury could not return a CCE verdict — even if all the jurors agree that Montalvo, in one way or another, committed at least three drug violations. Only if twelve jurors all agree on at least three specific predicate offenses (say, offenses 1, 4 and 5) may they convict under the CCE statute. Furthermore, the court must give a "specific unanimity" instruction to this effect. Richardson, 526 U.S. at 816, 119 S.Ct. 1707.

Montalvo's trial took place before Richardson, and the trial judge did not give the instruction that Richardson would subsequently require.1 Soon after Richardson was decided and while his habeas petition was still pending before the district court, Montalvo filed a "partial reply" to the government's opposition to his petition and challenged the jury instruction as inadequate. The district court denied the writ, holding that Montalvo's Richardson claim could not be asserted under the anti-retroactivity principle of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

II

"[N]ew constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced, unless the new rule [1] places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, or [2] could be considered a watershed rule of criminal procedure." Bousley v. United States, 523 U.S. 614, 619-20, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal quotation marks and citations omitted); see Teague v. Lane, 489 U.S. 288, 311-12, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). In short, Teague's anti-retroactivity principle "applies only to procedural rules"; "it is inapplicable to the situation in which [the Supreme Court] decides the meaning of a criminal statute enacted by Congress." Bousley, 523 U.S. at 620, 118 S.Ct. 1604. The dispositive question here, then, is whether Richardson's requirement — which admittedly is a "new" rule under Teague, 489 U.S. at 301, 109 S.Ct. 1060 — is substantive or procedural.2

Every one of our sister circuits that have confronted the issue agrees that Richardson announced a new substantive rule of criminal law. See Santana-Madera v. United States, 260 F.3d 133, 138-39 (2d Cir.2001); United States v. Lopez, 248 F.3d 427, 431-32 (5th Cir.2001); Murr v. United States, 200 F.3d 895, 904-06 (6th Cir.2000); Lanier v. United States, 220 F.3d 833, 838 (7th Cir.2000); United States v. Barajas-Diaz, 313 F.3d 1242, 1245 (10th Cir.2002); Ross v. United States, 289 F.3d 677, 681 (11th Cir.2002) (per curiam).

We join that unanimous view. In Richardson, the Supreme Court was faced with the question whether the phrase "series of violations" refers to a single element — namely, a "series" — with the individual "violations" merely constituting the underlying brute facts or "means" as to which jury unanimity is not required, see Andersen v. United States, 170 U.S. 481, 499-501, 18 S.Ct. 689, 42 L.Ed. 1116 (1898), or whether the phrase "series of violations" creates several elements — namely, the discrete "violations" — with respect to each of which the jury must agree unanimously and separately, see Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 92 L.Ed. 1055 (1948). Richardson v. United States, 526 U.S. at 817-24, 119 S.Ct. 1707. After examining the statute's language in the context of what Congress was trying to accomplish, the Supreme Court deemed the latter more consistent with our tradition of jury unanimity. Id.

What's significant for our purposes is that, in analyzing what constitutes "elements" as opposed to brute facts or "means," Richardson was "decid[ing] the meaning of a criminal statute enacted by Congress," Bousley, 523 U.S. at 620, 118 S.Ct. 1604. Richardson is, in this respect, analytically indistinguishable from Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), where the Supreme Court interpreted the meaning of the word "use" in a criminal statute that imposes a five-year minimum sentence upon any person who "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm," 18 U.S.C. § 924(c)(1)(A). Bailey similarly looked to "language, context, and history" before concluding that the element "use" in the statute requires "active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Bailey, 516 U.S. at 143-44, 116 S.Ct. 501. Just as Bailey narrows the reach of the firearms statute, Richardson restricts the class of persons who can be convicted for CCE — i.e., only those individuals who committed at least three predicate drug felonies, as determined by a unanimous jury beyond a reasonable doubt. Because the new rule announced in Bailey is substantive and therefore retroactively applicable to criminal convictions that have become final, Bousley, 523 U.S. at 619-21, 118 S.Ct. 1604, we reach the same conclusion about the rule established by Richardson. See also United States v. Mitchell, 867 F.2d 1232, 1233 (9th Cir.1989) (per curiam) (holding that McNally v. United States, 483 U.S. 350, 356-60, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), which narrowed the federal mail fraud statute to protect only property rights, is retroactive); United States v. Sood, 969 F.2d 774, 775-76 (9th Cir.1992) (holding that United States v. Bordallo, 857 F.2d 519, 524 (9th Cir.1988), which narrowed the federal bribery statute to exclude application to Guam, is retroactive); United States v. McClelland, 941 F.2d 999, 1001 (9th Cir.1991) (holding that United States v. Aguon, 851 F.2d 1158 (9th Cir.1988) (en banc), which held "inducement" to be an element of the federal extortion statute, is retroactive).

We hold that Teague does not bar Montalvo from raising a Richardson claim in his section 2255 habeas petition.

III

We must next decide whether the trial judge's failure to give a Richardson specific unanimity instruction was harmless.3

A. We can quickly reject Montalvo's argument that Richardson violations are structural errors subject to the automatic reversal rule. The "general rule" is that constitutional errors do not require reversal of a conviction, but are susceptible to harmless error review. Arizona v....

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