holding that harmless error analysis applies to Richardson CCE instruction error
How later courts described this case
- holding that harmless error analysis applies to Richardson CCE instruction error
- stating that harmless error analysis applies to Richardson error
- a "de- fendant convicted [of CCE] may not also be convicted for any predi- cate conspiracy charges proved as elements of the [CCE]"
- discussing, generally, waiver of right to conflict-free counsel
Written by the judges who cited it.
The opinion
Filed: February 2, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 94-5511
(CR-92-270-MU)
United States of America,
Plaintiff - Appellee,
versus
William Arthur Brown,
Defendant - Appellant.
O R D E R
The court amends its opinion filed January 18, 2000, as
follows:
On page 3, second full paragraph, line 1 -- “June 21, 1993" is
corrected to read “July 21, 1993.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5511
WILLIAM ARTHUR BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-92-270-MU)
Argued: September 22, 1999
Decided: January 18, 2000
Before MURNAGHAN, MICHAEL, and KING, Circuit Judges.
_________________________________________________________________
Affirmed in part, reversed in part, and remanded with instructions by
published opinion. Judge King wrote the opinion, in which Judge
Murnaghan and Judge Michael joined.
_________________________________________________________________
COUNSEL
ARGUED: Noell Peter Tin, RAWLS & DICKINSON, P.A., Char-
lotte, North Carolina, for Appellant. Gretchen C.F. Shappert, Assis-
tant United States Attorney, Robert Jack Higdon, Jr., Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
OPINION
KING, Circuit Judge:
William Arthur Brown appeals his multiple convictions on the fol-
lowing charges: one count of violating 21 U.S.C.§ 848 (engaging in
a "continuing criminal enterprise" ("CCE")); one count of violating 21
U.S.C. § 846 (conspiracy to violate the drug laws ("drug conspir-
acy")); and four counts of violating 18 U.S.C. § 1956 ("money laun-
dering"). Brown argues that each of his six convictions should be
reversed based on the trial court proceedings relating to his lawyer's
conflict of interest.1 In the alternative, Brown asserts that his CCE
conviction must be reversed for two reasons. The first arises from the
omission of two jury instructions that Brown claims were mandated,
and the second concerns Brown's contention that his convictions for
both CCE and drug conspiracy violate the constitutional prohibition
against double jeopardy.
Based on the record and recent controlling Supreme Court prece-
dent, we reverse Brown's CCE conviction and remand for re-
sentencing on the drug conspiracy charge. Finding no other error, we
affirm each of Brown's other convictions and the sentences thereon.
I.
On October 6, 1992, a grand jury in the Western District of North
Carolina returned an eleven-count indictment against Brown. On July
29, 1993, following an eight-day jury trial, Brown was convicted on
six counts.2
_________________________________________________________________
1 Brown also contends that the Government improperly influenced wit-
nesses by offering plea agreements in exchange for testimony. Br. for
Appellant at 45 (citing United States v. Singleton, 144 F.3d 1343 (10th
Cir. 1998), rev'd en banc, 165 F.3d 1297 (10th Cir. 1999)). We have pre-
viously considered and rejected this argument, and it is entirely without
merit. See, e.g., United States v. Feurtado, 191 F.3d 420, 425 (4th Cir.
1999).
2 The jury also acquitted Brown on one money laundering count under
18 U.S.C. § 1956(a)(1)(A), and the Government dismissed three other
money laundering charges and a charge of using or carrying a firearm in
relation to a drug trafficking crime, see 18 U.S.C. § 924(c)(1).
2
A.
Brown was represented at trial by three lawyers: (1) Anita Rivkin-
Carothers; (2) Robert F. Simone; and (3) Calvin E. Murphy. During
pre-trial proceedings, Ms. Rivkin-Carothers served as Brown's lead
counsel,3 with Mr. Murphy assisting as local counsel. On July 16,
1993, three days before trial, Mr. Simone filed a notice of appearance
and moved the court for admission pro hac vice, representing that: "It
is my intention to assist and work with local counsel, Calvin E. Mur-
phy, and Anita Rivkin-Carothers, who will act as lead counsel in this
matter."
On July 21, 1993, before the third day of trial began, the Govern-
ment filed a motion to recuse Mr. Simone. The motion was based on
the Government's discovery (the previous day) that Mr. Simone had
been convicted on federal racketeering and extortion charges.4 The
district court held a hearing on the Government's motion that same
morning, with Brown present throughout. After the lawyers for both
sides presented their positions,5 the district court explained to Brown,
inter alia, that Mr. Simone's conviction could present a conflict of
interest because Mr. Simone might attempt to get some personal ben-
_________________________________________________________________
3 Ms. Rivkin-Carothers entered an appearance in this case on June 11,
1993, concurrently moving the court for admission pro hac vice. The dis-
trict court granted her motion on June 16, 1993.
4 In October 1991, a federal grand jury in the Eastern District of Penn-
sylvania indicted Mr. Simone on six racketeering and extortion counts.
In December 1992, following prosecution by the Department of Justice,
a jury convicted Simone on five counts. In May 1993, Mr. Simone was
sentenced to four years' incarceration, and he initiated appeals of his
convictions on May 8, 1993. On August 5, 1993, the State of Pennsylva-
nia suspended Simone's license to practice law. Approximately a year
later, Mr. Simone's appeal was denied, and he began his prison term.
5 At that hearing, the Government argued that, because Mr. Simone was
being prosecuted by the United States, he had a conflict between his per-
sonal interests and Brown's interests. Mr. Simone responded that recusal
was not necessary; that he had been convicted at trial on federal felony
charges; that his case was on appeal; that he expected to be exonerated;
that he was still a member in good standing of the Pennsylvania Bar; and
that he had recently been permitted to practice in federal court despite his
convictions.
3
efit, at Brown's expense, from the federal prosecutors. Brown then
assured the court that he understood the problem, and the court asked
Brown whether he wanted to proceed: (1) with Mr. Simone as one of
his trial lawyers (along with Ms. Rivkin-Carothers); (2) with Ms.
Rivkin-Carothers as his only trial lawyer; or (3) in some other way.
Brown responded that he wanted to keep Mr. Simone as one of his
lawyers. The court then denied the Government's motion to recuse,
thus permitting Mr. Simone to represent Brown, as co-counsel with
Ms. Rivkin-Carothers and Mr. Murphy.6
Unfortunately, the court reporter lost that part of the trial transcript
relating to the recusal hearing. Thus, Brown filed a statement in the
district court, pursuant to Fed. R. App. P. 10(c), summarizing the
recusal hearing. The Government responded with its own statement,
and without a hearing, the district court adopted the Government's
statement, concluding that "the Government's recitation of the events
in question most closely comports with [the court's] own recollection
of these events." J.A. 1174. The court added that, "[T]he Court recalls
that Mr. Simone ably represented Appellant Brown. In particular, the
Court recalls that Mr. Simone conducted an aggressive and effective
cross-examination of government witnesses." Id.
B.
In addition to the arguments based on Mr. Simone's conflict,
Brown contends that his CCE conviction must be overturned because
the district court erroneously failed to give two unanimity instructions
to the jury in connection with that charge. See infra at 10. Brown's
counsel preserved his assertion of error on the first instruction by
timely objecting to the district court's instructions and requesting the
additional instruction. However, his lawyers did not request the sec-
ond instruction or object on this basis at trial.
Brown also argues that his separate convictions for CCE and drug
conspiracy violate the Fifth Amendment's prohibition on double jeop-
ardy. There are several facts relevant to this argument. The underlying
crimes alleged in support of the CCE charge in Count One of Brown's
_________________________________________________________________
6 Mr. Murphy, the local counsel, apparently was not actively involved
in the trial itself.
4
indictment were: (1) Brown's violation of 21 U.S.C. § 841 (drug pos-
session with intent to distribute); and (2) his participation in a drug
conspiracy operating between January 1988 and September 21, 1992,
in violation of 21 U.S.C. § 846. That same drug conspiracy was also
the basis for the separate drug conspiracy charge in Count Two of
Brown's indictment. Brown was convicted on both charges, and the
district court sentenced him to 360 months of incarceration for both
convictions, without distinguishing a specific sentence for either
offense.7 The court also imposed a "special assessment" of $300 col-
lectively on all of Brown's convictions, which included $50 on the
CCE conviction and $50 on the drug conspiracy conviction. In addi-
tion to those sentences, the court imposed a 240-month term of incar-
ceration on the four money laundering convictions, to run
concurrently with the sentence for the CCE and drug conspiracy con-
victions.
The district court entered its final judgment on April 15, 1994, after
which Brown timely appealed his convictions and the sentences
thereon. We possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
The Government concedes that one of Brown's lawyers, Mr.
Simone, was operating under a conflict of interest when he repre-
sented Brown at trial. Brown argues that this conflict mandates rever-
sal because the record does not establish that he knowingly and
intelligently waived the conflict of interest, and because the conflict
adversely affected his defense. We review these arguments in turn.
_________________________________________________________________
7 The court's sentencing colloquy provided:
At this time, the Court will state a proposed sentence.
I propose that Mr. Brown serve a term of incarceration of 360
months on Counts One and Two; that he serve a term of incar-
ceration of 20 years per count on Counts Five, Six, Seven and
Ten, to be served concurrently with the terms on Counts One and
Two, for a total of 360 months[.]
J.A. 1148-49. This proposed sentence was then imposed, and the district
court's Judgment in a Criminal Case provided: "Cts. 1 & 2: Three hun-
dred and sixty (360) months." J.A. 1153.
5
A.
Brown first contends that the lack of a trial transcript of the recusal
hearing mandates a new trial. We review de novo the district court's
compliance with the Court Reporter Act, 28 U.S.C. § 753(b), and Fed.
R. App. P. 10(c).
Brown is correct that the Court Reporter Act requires a complete
transcript of trial proceedings, and there is no doubt that "[a] criminal
defendant has a right to a meaningful appeal based on a complete
transcript." United States v. Huggins, 191 F.3d 532, 536 (4th Cir.
1999). However, omissions from a trial transcript only warrant a new
trial if "the missing portion of the transcript specifically prejudices [a
defendant's] appeal." United States v. Gillis, 773 F.2d 549, 554 (4th
Cir. 1985); Huggins, 191 F.3d at 536. Indeed, we recently reaffirmed
our rule that "to obtain a new trial, whether or not appellate counsel
is new, the defendant must show that the transcript errors specifically
prejudiced his ability to perfect an appeal." Huggins, 191 F.3d at 537.
Brown asserts that, without a complete transcript, his "ability to
challenge the validity of his alleged waiver is practically nonexistent."
While Brown might be unable to successfully challenge his waiver of
Simone's conflict, it is not the lack of the complete hearing transcript
that prevents him from doing so. Brown's recollection of the recusal
hearing does differ slightly from the Government's version, but
Brown is unable to demonstrate prejudice because he does not dispute
the central facts necessary for appellate review of the recusal ruling.
See infra note 9. In fact, Brown's two disputes with the Government's
Rule 10(c) statement -- (1) claiming that he was not informed of the
precise federal charges on which Mr. Simone had been convicted; and
(2) claiming that he did not see the Government's recusal motion at
the recusal hearing -- are irrelevant in light of Brown's concession
that, when he waived Mr. Simone's conflict, he knew and understood
the core of the Government's recusal motion. Id. Brown's demand for
a new trial based on an incomplete transcript thus fails. Simply put,
he does not demonstrate any legitimate prejudice, or even argue that
there are discrepancies between his recollection of the recusal pro-
ceeding and the Government's version thereof that require resolution
6
by reference to the transcript. Under these circumstances, we are
unable to find prejudice in an incomplete transcript.8
B.
It is well established that, "[A]lthough a defendant may waive his
right to conflict-free representation, such waiver must be knowing,
intelligent, and voluntary." United States v. Gilliam, 975 F.2d 1050,
1053 (4th Cir. 1992) (citations and quotations omitted). Brown claims
that his waiver of Mr. Simone's conflict was not knowing or intelli-
gent because he did not understand: (1) the precise federal charges on
which Simone had been convicted; (2) that a sentence-- including
a term of incarceration -- had been imposed on Simone; (3) that
Simone was under an order to "show cause" why his license should
not be revoked; and (4) that Simone was representing himself on
appeal. We review Brown's waiver of his lawyer's conflict de novo,
as we would a waiver of the right to counsel itself. United States v.
Singleton, 107 F.3d 1091, 1097 n.3 (4th Cir. 1997).
Brown relies upon our decision in Hoffman v. Leeke, 903 F.2d 280
(4th Cir. 1990), to support his argument that his waiver was invalid.
In Hoffman, a case in which one attorney represented two co-
defendants, we held a waiver of conflicted counsel invalid where the
appellant did not know that his lawyer had advised his co-defendant
to testify against him. Id. at 289. Our decision there was buttressed
by another important fact: the lawyer had not informed the appellant
that he had negotiated a plea agreement requiring the co-defendant to
implicate the appellant. Id.
By contrast, under Brown's version of the recusal hearing, he knew
that Mr. Simone had been "convicted in federal court, but that he was
_________________________________________________________________
8 Brown's argument that reversal is required because the trial court did
not "perform its necessary fact-finding function" in connection with the
Rule 10(c) proceedings is also unavailing. Contrary to Brown's assertion,
the trial court was under no mandate to conduct a hearing. See Fed. R.
App. P. 10(c). Further, the district court's order makes clear that it
reviewed both Rule 10(c) statements before making the determination
that the Government's account of the recusal hearing was accurate.
7
out on bail." J.A. 1163.9 Further, Brown does not dispute that the dis-
trict court informed him at the recusal hearing that: (1) Simone was
"in trouble" with the Justice Department; (2) Simone was operating
under a conflict because federal prosecutors -- who were prosecuting
Brown -- were also prosecuting Simone; and (3) this conflict might
affect Simone's representation because Simone might try to curry
favor in his own case by sacrificing Brown. Finally, there is no dis-
pute that after Brown was so informed, the district court asked
whether Brown wanted Simone to continue to represent him, notwith-
standing this conflict. Brown responded that he "wanted to have Mr.
Simone continue as [his] attorney." J.A. 1164.
When a lawyer is operating under a conflict of interest as serious
as the one here, that lawyer, the Government, and the district court
should provide the defendant with as much relevant information as
possible about the conflict before the court accepts a waiver of the
conflict of interest. However, if a defendant waives the conflict with
knowledge of the crux of the conflict and an understanding of its
implications, the waiver is valid -- even if the defendant does not
know each detail concerning the conflict.10 Thus, even if we were to
_________________________________________________________________
9 For example, Brown concedes that, "[p]rior to trial, Mr. Simone
informed me that he had been convicted in federal court, but that he was
out on bail and was in good standing with the Pennsylvania Bar." J.A.
1163. Brown further notes:
On the first day of trial, while the jury was out, the attorneys had
a sidebar conference with the judge.
The judge then inquired whether I wanted to continue with Mr.
Simone representing me, knowing that he had been in trouble
with the Justice Department.
I indicated that I wanted to have Mr. Simone continue as my
attorney.
J.A. 1163-64.
10 In his Supplemental Brief, Brown argues that he was not able to
waive Mr. Simone's conflict at all. We find this argument without merit.
Especially where -- as here -- a defendant has several lawyers, a defen-
dant may certainly waive a conflict held by one of them. See Gilbert v.
Moore, 134 F.3d 642, 652-53 (4th Cir. 1998) (discussing, generally,
waiver of right to conflict-free counsel).
8
agree that Brown did not know all the facts relating to Mr. Simone's
conflict, the record establishes that he clearly knew enough to make
a knowing, intelligent, and voluntary waiver.11
We therefore affirm the district court's rulings relating to Mr.
Simone's conflict of interest, and find this assertion of reversible error
to be unfounded.
III.
Brown also asserts other bases for reversal of his CCE conviction
-- arguments grounded in the jury instructions and in his concurrent
convictions on both the CCE and drug conspiracy charges.
A.
To establish that a defendant was engaging in a continuing criminal
enterprise, the Government must prove, inter alia, a violation of the
drug statutes where "such violation is a part of a continuing series of
violations[.]" 21 U.S.C. § 848(c). Brown claims that the district court
should have instructed the jury that, prior to returning a guilty verdict
on the CCE charge, unanimity was required on: (1) the specific predi-
cate offenses constituting the "continuing series"12 and (2) that Brown
himself committed the offenses constituting the"continuing series."13
_________________________________________________________________
11 Our conclusion here is buttressed by the other facts relating to
Brown's representation at trial. Brown had at least one other lawyer pres-
ent throughout the trial to further assure adequate representation.
Although the presence of a second lawyer is not dispositive of Brown's
claim, Ms. Rivkin-Carothers served as Brown's lead counsel, and Brown
has not challenged any aspect of her representation. Moreover, while
Brown asserts that Mr. Simone's representation was ineffective -- a
claim more appropriately pursued in a collateral proceeding -- the
alleged deficiencies in Simone's performance are unsupported here and
have no apparent or articulated nexus with Simone's conflict. Those
assertions thus cannot serve as the basis for reversal.
12 Because Brown properly preserved this objection, we review the
denial of his request for this supplemental jury instruction for an abuse
of discretion. United States v. Helem, 186 F.3d 449, 454 (4th Cir. 1999).
13 Brown failed to request this instruction at trial, and we would there-
fore review its omission for plain error. United States v. Rogers, 18 F.3d
265, 268 (4th Cir. 1994).
9
At trial, Brown requested the first of these instructions, but the district
court denied Brown's request, likely relying upon our decision in
United States v. Hall, 93 F.3d 126 (4th Cir. 1996) (noting that this
instruction was not required).14
After Brown's trial, but before this case was argued on appeal, the
Supreme Court held that the first of the absent instructions of which
Brown complains (i.e., that the jury was bound to unanimously find
the specific violations constituting the "continuing series") was
required in a CCE trial. See Richardson v. United States, 119 S. Ct.
1707, 1713 (1999). In so holding, the Court rendered our observation
in Hall incorrect, but left open the question of whether failure to
instruct in this manner is structural error -- mandating a new trial --
or whether such failure is subject to harmless error analysis. Id. Thus,
we must first determine whether a Richardson error, which occurred
here, is subject to harmless error analysis.
In this regard, we join our sister circuits in holding that a
Richardson error is not a structural defect; rather, we hold that it is
subject to harmless error analysis. See United States v. Escobar-
de Jesus, 187 F.3d 148, 161-62 (1st Cir. 1999) (holding that harmless
error analysis applies to Richardson CCE instruction error); United
States v. Long, 190 F.3d 471, 476 n.3 (6th Cir. 1999) (stating that
harmless error analysis applies to Richardson error). Another recent
Supreme Court case applying harmless error analysis in analogous
circumstances, Neder v. United States, 119 S. Ct. 1827 (1999), also
provides strong support for our conclusion. There, the district court
had instructed the jury (over the defendant's objection) that it "need
not consider" the materiality of a false statement (an essential element
_________________________________________________________________
14 In Hall, we observed that:
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.
Hall, 93 F.3d at 129.
10
of the offense) because that question was not "for the jury to decide."
Id. at 1832 (quotations omitted). This instruction was given
erroneously,15 and the misinstruction permitted the jury to convict the
defendant without making a determination on the essential element of
materiality. Nonetheless, the Neder Court held this erroneous instruc-
tion did not constitute structural error: "[A]n instruction that omits an
element of the offense does not necessarily render a criminal trial fun-
damentally unfair or an unreliable vehicle for determining guilt or
innocence." Id. at 1833 (alteration in original).
Although the error in Neder was based on a misinstruction, and the
Richardson error here is based on the omission of a required
instruction,16 both errors effectively withdrew an element of the
offense from the jury's consideration. Thus, under Neder's reasoning,
we are confident that harmless error analysis is appropriately applied
in our review of a Richardson error. Having so determined, we turn
to the application of that analysis to this case.
B.
In conducting a harmless error analysis, our task is to determine
whether "the guilty verdict actually rendered [at] trial was surely
unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 279
(1993); United States v. Hastings, 134 F.3d 235, 241 (4th Cir. 1998)
("When, over a proper objection, a district court erroneously instructs
the jury on an element of the offense, the error may be disregarded
as harmless if a reviewing court can determine, beyond a reasonable
doubt, that a correctly instructed jury would have reached the same
conclusion."). We thus ask the question: "Is it clear beyond a reason-
able doubt that a rational jury would have found the defendant guilty
_________________________________________________________________
15 In United States v. Gaudin , 515 U.S. 506 (1995), the Supreme Court
held that the materiality element was a jury question.
16 The court instructed the jury that the Government had to prove the
"continuing series" element beyond a reasonable doubt and also that
"[t]he phrase `a continuing series of violations' means three or more vio-
lations of the Federal narcotics laws which are in some way related to
one another." The instruction was deficient in that it failed to require
unanimous juror agreement about the specific violations constituting the
"continuing series."
11
absent the error?" Neder, 119 S. Ct. at 1838. There are at least two
methods for making this determination.
1.
First, if an Appellant claims that an omitted instruction permitted
the jury to convict without making required findings, and an appellate
court can determine that the jury necessarily made those findings not-
withstanding the omission, the error is harmless. One such example
would occur if the jury that convicted a defendant on a CCE charge
also convicted that defendant of at least three related drug violations,
and the related violations were also alleged to be predicate violations
constituting the "continuing series." See Escobar-de Jesus, 187 F.3d
at 162; Long, 190 F.3d at 476 n.3; cf. United States v. King, 169 F.3d
1035, 1040-41 (6th Cir. 1999) (holding any potential error harmless
where defendant was separately convicted by same jury of all predi-
cate -- and related -- offenses).17 Another such circumstance would
surface if the district court instructed the jury that a "continuing series
of violations" means "three or more violations," and the Government
introduced evidence of only three predicate offenses. In both of these
instances, an appellate court -- on review of a CCE conviction -- can
conclude beyond a reasonable doubt that the jury necessarily made
the required finding.
Here, the Government concedes that "the jury panel may not have
reached agreement as a body as to which three violations supported
their verdict," Supp. Br. for Appellee at 5, and it does not assert that
it introduced evidence of only three predicate violations in support of
the CCE conviction. However, the Government maintains -- in an
assertion raised for the first time at oral argument-- that Brown's
four money laundering convictions demonstrate unanimous juror
agreement about the specific offenses constituting the "continuing
series."
_________________________________________________________________
17 Indeed, in the appellate decisions finding a Richardson error harm-
less, the jury also convicted the defendant of at least three of the predi-
cate violations that the Government had alleged in support of the
"continuing series." See Escobar-de Jesus, 187 F.3d at 162; Long, 190
F.3d at 476 n.3.
12
However, the CCE statute provides that only violations of subchap-
ters I and II of Title 21 of the United States Code -- drug violations
-- can constitute predicate offenses in the "continuing series." See 21
U.S.C. § 848(c). Because the money laundering charges were viola-
tions of a different title and subchapter -- 18 U.S.C. § 1956 -- those
convictions cannot be predicate offenses under the CCE statute. Fur-
ther, the money laundering charges in Brown's indictment were not
based on specific drug violations; rather, they were based on the alle-
gation that Brown laundered money that was obtained from unspeci-
fied illegal drug-related activity. The Government's reliance on the
money laundering convictions is therefore misplaced, and must be
rejected.
In these circumstances, we are unable to conclude that the jury nec-
essarily agreed upon the specific predicate acts constituting the
required "continuing series."
2.
Under the Neder Court's harmless error framework, a Richardson
error still may be harmless even if we cannot determine that the jury
necessarily found the omitted element. First, "where a reviewing court
concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence, such that the
jury verdict would have been the same absent the error, the erroneous
instruction is properly found to be harmless." Neder, 119 S. Ct. at
1837. Thus, if the element was uncontested18 and supported by over-
_________________________________________________________________
18 We note that there is some tension in an appellate court deeming an
element "uncontested" when the element emerged as a consequence of
a change in the law after trial. See Neder, 119 S. Ct. at 1837 (relying on
fact that defendant did not contest an element "to the jury" in determin-
ing that the evidence was "uncontested"). For example, the Hall decision,
supra, would have led Brown to believe that the jury was not required
to unanimously determine the specific violations constituting the "contin-
uing series." See supra note 14. In these circumstances, where the Gov-
ernment does not even charge the defendant with those specific
violations, defense counsel could have made the strategic decision to
spend valuable time before the jury challenging the Government's evi-
dence on the essential elements. Speculating that a defendant could not
have challenged an element not then at issue represents an untoward leap
of logic.
13
whelming evidence, the harmless error inquiry ends, and we must find
the error harmless.
On the other hand, if the defendant contested the omitted element,
Neder mandates a second inquiry. In that event, we must determine
whether the "record contains evidence that could rationally lead to a
contrary finding with respect to that omitted element." Id. at 1839. If
not, then the error is harmless. But if the element was genuinely con-
tested, and there is evidence upon which a jury could have reached
a contrary finding, the error is not harmless.19 It is not harmless
because, in that circumstance, we cannot determine beyond a reason-
able doubt that the "jury verdict would have been the same absent the
error." Id. at 1838.
Pursuant to Neder, we have endeavored to determine, beyond a rea-
sonable doubt, whether the jury would have returned a guilty verdict
on the CCE count if it had been properly instructed to agree on at
least three specific violations constituting the "continuing series."
Although the Government did not argue (or even state in conclusory
fashion) that it proved the Richardson elements of the CCE offense
by "overwhelming" and "uncontested" evidence,20 we have reviewed
the record submitted to us in order to glean: (1) which predicate viola-
tions the Government sought to prove; (2) whether the Government
introduced "overwhelming" evidence to prove each violation; and (3)
whether Brown genuinely contested that violation such that there is
_________________________________________________________________
19 The Second Circuit has construed Neder to require an additional step:
"If [there was sufficient evidence to permit a jury to find in favor of the
defendant on the omitted element, we must determine] whether the jury
would nonetheless have returned the same verdict of guilty." See United
States v. Jackson, 196 F.3d 383, 385-86 (2d Cir. 1999). We do not
believe that Neder requires this additional inquiry; rather, Neder makes
clear that if, for example, an appellate court determines that "the defen-
dant contested the omitted element and raised evidence sufficient to sup-
port a contrary finding[,] it should not find the error harmless," and the
harmless error inquiry must end. Neder, 119 S. Ct. at 1838.
20 The Government argues that the evidence introduced at trial "clearly
supported" the finding that Brown had engaged in a series of criminal
violations, but it does not argue that proof of any of those violations was
"uncontested."
14
evidence upon which the jury could have concluded that Brown did
not commit the violation.
We have done our best to identify the specific predicate offenses
upon which the Government relied; however, the grand jury did not
specifically enumerate them in Brown's indictment, the Government
never specifically listed them at trial, and the district court did not
identify them in its instructions. We thus have turned for guidance to
the Government's evidence at trial. In this regard the Government
submitted voluminous testimony to the jury, but in closing argument
relied principally upon several alleged predicate drug offenses.21
_________________________________________________________________
21 Our review of the Government's closing remarks unearthed the fol-
lowing allegations of possible predicate violations:
(a) Bynum and Brown make, inter alia, a "nine-ounce deal" for
cocaine. J.A. 1019.
(b) Lark makes several deals for heroin with Brown: one eight-
ounce deal, two one-ounce deals, and two one-hundred
gram deals. J.A. 1021.
(c) Adams purchases heroin with Brown. J.A. 1022.
(d) Adams makes one-ounce deal that was "cut-up" at Brown's
place. J.A. 1022.
(e) Morrow "getting heroin and cocaine from" Brown. J.A.
1022.
(f) Cathcart distributes Brown's heroin. J.A. 1023.
(g) Sloan sells heroin for McClain, who worked for Brown.
J.A. 1023.
(h) Sloan witnesses Brown picking-up three "bundles" of her-
oin at the Waffle House. J.A. 1024.
(i) Odom and her husband sell heroin for Brown. J.A. 1024.
(j) Turner distributes heroin for Brown on several occasions.
J.A. 1025, 1028.
(k) Huntley purchases heroin from Brown on several occa-
sions. J.A. 1026.
(l) Tillman purchases heroin for Brown. J.A. 1026.
(m) Adams and Brown deliver heroin to "Dit." J.A. 1028.
(n) Adams and Brown possess and prepare cocaine for distri-
bution. J.A. 1030.
15
Those alleged offenses were supported by testimony from witnesses
Samuel L. Bynum, Jeffrey E. Lark, Jack O. Adams, Lynn E. Morrow,
James W. Cathcart, Tonya D. Sloan, Mary Odom, Patricia Turner,
Leroy Huntley, Jr., and Arthur Tillman. Brown attempted to impeach
each of these Government witnesses -- and most other Government
witnesses -- at least on the basis that those witnesses were testifying
in support of the Government's case in exchange for reduced
sentences.22 In addition, each of these witnesses had a substantial
criminal record that Brown's lawyers exposed to the jury on cross-
examination.
Brown also elicited other testimony impeaching the credibility of
several witnesses and contradicting the Government's proof of those
violations. Among other things, Bynum testified that he did not know
if Brown ever received the nine ounces of cocaine underlying one of
the Government's alleged predicate violations. J.A. 78-79. Bynum
also contradicted himself at least once -- first testifying on direct
examination that Brown took over his drug business, then stating on
cross-examination that this was not true. J.A. 204. Similarly, Lark
could not remember specific details of the predicate violations that his
testimony supported, J.A. 382, and Brown's counsel attempted to
impeach Adams and Sloan on cross-examination by prior inconsistent
statements. J.A. 287 (Adams), J.A. 596-600 (Sloan). Further, Morrow
could not remember the full extent of her own criminal record, and
she testified that she dealt drugs with Brown at a time when Brown
was actually incarcerated. J.A. 434, 450, 477, 1009-10.
_________________________________________________________________
22 Bynum, Lark, Adams, Odom, and Tillman agreed that they were tes-
tifying in exchange for various considerations from the Government. J.A.
117-20 (Bynum); J.A. 378-79 (Lark); J.A. 299 (Adams); J.A. 635
(Odom); J.A. 842 (Tillman). Morrow agreed that she had given substan-
tial assistance to the Government in exchange for reduced time. J.A. 494.
Cathcart denied that he had been promised anything by the Government
in exchange for his testimony, J.A. 546-49, but he had not yet entered a
plea on his charges. Finally, Sloan, Turner, and Huntley testified that
they had entered into plea agreements with the Government, J.A. 589
(Sloan); J.A. 717 (Turner); J.A. 782-83 (Huntley), and those agreements
provided for Government recommendations of lower sentences in
exchange for cooperation. J.A. 27 (Sloan); J.A. 53-55 (Turner); J.A. 35-
43 (Huntley).
16
Brown thus genuinely contested the evidence supporting each of
the alleged predicate offenses, and there was a basis in the record for
the jury to have rationally disbelieved the testimony of any of the
Government's witnesses. Put simply, the Government's case turned
upon the credibility of witnesses whose vulnerabilities were exposed
by Brown's lawyers, and we are unable to discern which of these wit-
nesses were actually believed and relied upon by the jury. Our uncer-
tainty is amplified by the fact that the jury was not given an
enumeration of the possible predicate offenses that could constitute
the "continuing series." This factual setting leads us to conclude: (1)
that omitting the Richardson instruction could have "permitt[ed the]
jury to avoid discussion of the specific factual details of each viola-
tion," thus potentially covering-up "wide disagreement among the
jurors about just what the defendant did, or did not, do"; and (2) that
the jurors could have failed to focus upon specific factual details in
the absence of the Richardson instruction,"simply concluding from
testimony, say, of bad reputation, that where there is smoke there
must be fire." Richardson, 119 S. Ct. at 1711. As the Supreme Court
has indicated, these are two of the uncertainties sought to be avoided
by a Richardson instruction. In the absence of such an instruction, we
run head-on into each of them in this case.
In this circumstance, we are unable to conclude, beyond a reason-
able doubt, that the jury would have agreed upon three specific predi-
cate offenses, and Neder dictates the result:
If . . . the court cannot conclude beyond a reasonable doubt
that the jury verdict would have been the same absent the
error -- for example, where the defendant contested the
omitted element and raised evidence sufficient to support a
contrary finding -- it should not find the error harmless.
Neder, 119 S. Ct. at 1838. We must therefore reverse Brown's CCE
conviction.23
_________________________________________________________________
23 Because we reverse Brown's CCE conviction based on the omission
of the first of the two instructions discussed supra at 9-10, we do not
decide whether the omission of the second instruction constitutes plain
error.
17
C.
Brown also challenges his CCE and drug conspiracy convictions
on double jeopardy grounds, a claim that we review de novo. See
United States v. McManus, 23 F.3d 878, 884 (4th Cir. 1994) (a "de-
fendant convicted [of CCE] may not also be convicted for any predi-
cate conspiracy charges proved as elements of the [CCE]") (internal
quotations omitted); United States v. Imngren, 98 F.3d 811, 813 (4th
Cir. 1996) (noting that de novo standard of review applies to double
jeopardy claims). However, because we have reversed Brown's CCE
conviction and sentence thereunder,24 Brown's double jeopardy claim
is now moot.
Although the claim is moot, we call attention to one aspect of
Brown's sentence. The district court imposed a $300 "special assess-
ment" collectively on all of Brown's convictions pursuant to 18
U.S.C. § 3013, which, in 1994, required a special assessment of $50
per offense on any person convicted of a felony against the United
States. When this assessment is imposed twice for the same act, the
Supreme Court has held that it is a "collateral consequence" amount-
ing to an "impermissible [double] punishment." Rutledge v. United
States, 517 U.S. 292, 302-03 (1996). The Government concedes that
the drug conspiracy was a lesser-included offense to the CCE charge
here; therefore, because Brown was assessed $50 twice -- for both
the CCE and drug conspiracy convictions -- we remand with instruc-
tions to vacate one of these $50 assessments.
D.
Finally, the district court imposed a single unitary sentence of 360
months on "Counts One and Two" -- the CCE count and the drug
conspiracy count respectively. Under these circumstances, having
found reversible error in the CCE conviction, we are compelled to
vacate that unitary sentence. However, because we reverse only
Brown's CCE conviction, and because he has not challenged the bal-
ance of the district court's sentencing determinations, we remand with
_________________________________________________________________
24 Should the Government successfully retry Brown on the CCE charge,
this issue could again be ripe for consideration.
18
instructions for the district court to reconsider only a portion of its
overall sentencing decision.
The district court began its sentencing analysis with the United
States Sentencing Commission, Guidelines Manual, § 2D1.1 (Nov.
1998) ("USSG").25 The court first found that 3.6 kilograms of heroin
was involved in the drug conspiracy; thus, under USSG § 2D1.1(a)(3)
& § 2D1.1(c)(3), the court determined that the base offense level was
34. Next, pursuant to USSG § 2D1.1(b)(1), the court found that a fire-
arm was involved and increased the base offense level by 2 levels for
an adjusted offense level of 36. Brown has not challenged either of
these determinations, and both of them apply equally to the drug con-
spiracy conviction.26 We thus affirm the district court's sentencing
determinations to this point and hold that they apply to the drug con-
spiracy sentencing analysis to be conducted on remand.
However, we vacate the sentencing determinations that followed.
The court first increased the base offense level by 4 levels under
USSG § 2D1.5(a)(1) because of the CCE conviction, and since the
total of 40 exceeds 38, the trial court imposed a sentence grounded
on an adjusted offense level of 40. See USSG § 2D1.5(a)(2). The dis-
trict court declined to increase Brown's sentence based on his "role
in the offense" because the court believed that "the CCE already has
a role in the offense level computed." J.A. 1144. We note that the
four-level increase under USSG § 2D1.5(a)(1) is also applicable
under a drug conspiracy conviction, but it is for the district court to
determine: (1) whether to increase Brown's drug conspiracy base
offense level of 36 by 4 levels based on USSG § 2D1.5; (2) whether
the "role in the offense" adjustment is warranted under USSG
§ 3B1.1; and (3) the appropriate sentence thereunder.
_________________________________________________________________
25 Although we cite to the November 1998 Sentencing Guidelines Man-
ual, Brown's sentencing took place in April 1994, the Guidelines appli-
cable at that time are controlling, and the relevant provisions are
unaltered.
26 As discussed above, the drug conspiracy charge and CCE charge
covered the same time frame, the same evidence was submitted in sup-
port of each conviction, and the testimony that the district court credited
in finding 3.6 kilograms of heroin was submitted in relation to the drug
conspiracy that "began in 1988 and continued until September 1992."
J.A. 1088, 1090.
19
IV.
Because the Government cannot establish that the Richardson error
was harmless, we reverse Brown's CCE conviction, vacate his unitary
sentence for the separate CCE and drug conspiracy convictions, and
remand these aspects of Brown's case for such proceedings as may
be appropriate. Finding no other reversible error, we affirm Brown's
other convictions and the sentences imposed thereon.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS
20