United States v. Russell

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

1-16-1998

United States v. Russell

Precedential or Non-Precedential:

Docket 96-7760

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Filed January 16, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-7760

UNITED STATES OF AMERICA

v.

JAMES RUSSELL, aka GAITH JUNIOR DOUGLAS,

aka STEVEN SHAWN JONES

JAMES RUSSELL, a/k/a Steven Shawn Jones,

Appellant.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Criminal No. 94-cr-00314-1)

ARGUED AUGUST 11, 1997

BEFORE: ALITO, LEWIS and McKEE, Circuit Judges.

(Filed January 16, 1998)

Michael J. Zicolello (ARGUED)

Schemery & Zicolello

330 Pine Street

One Executive Plaza, Suite 201

Williamsport, PA 17701

Attorney for Appellant

George J. Rocktashel (ARGUED)

Office of United States Attorney

240 West Third Street

P.O. Box 548

Williamsport, PA 17703

Attorney for Appellee

OPINION OF THE COURT

LEWIS, Circuit Judge.

James Russell was convicted of conspiracy to distribute

controlled substances in violation of 21 U.S.C. S 846, and

conducting a continuing criminal enterprise (CCE) in

violation of 21 U.S.C. S 848. He was sentenced to two

concurrent life terms.

Russell's appeal presents a number of challenges to his

convictions, the primary one being that the district court

failed to instruct the jury properly on the CCE count. We

will discuss each of Russell's challenges in turn, focusing in

more detail on his claim that the CCE instruction deprived

him of his Sixth Amendment right to a unanimous jury

verdict.

We will conclude that the jury instruction on the CCE

count was erroneous and was not harmless error.

Accordingly, we will reverse Russell's conviction under the

CCE statute. We will affirm his convictions on all other

counts.

I.

A. Facts

Russell and four others were charged with conducting a

continuing criminal enterprise (Count I), conspiracy to

distribute controlled substances (Count II), and money

laundering (Count III). The indictment also sought the

forfeiture of property and assets obtained with proceeds of

drug sales, pursuant to 21 U.S.C. S 853(p). App. at 53.

Three of Russell's co-defendants, Mark Smith, Richard

2

Francis Robinson and Arthur Lester Raymond, pleaded

guilty to the conspiracy charge and testified against Russell

at trial.

Russell's trial commenced in June 1995 and lasted

approximately six weeks. The testimony outlined a complex

and lucrative scheme, organized by Russell, to distribute

drugs in Pennsylvania, initially in Philadelphia and later in

Williamsport. Essentially, Russell, Robinson, Smith and

Raymond pooled their funds to make large purchases of

cocaine base and cocaine powder from suppliers in New

York. The drugs were repackaged and distributed to sellers

in Pennsylvania, and then sold on the street in $10 or $20

bags.

In addition to conducting his own distribution network in

Williamsport, Russell also supplied cocaine to other

distributors operating networks there. Specifically, Russell

developed a business relationship with one David Williams.

Russell would supply Williams with cocaine, which Williams

would then sell from a location known as the "pink house."

Over time, Williams permitted Russell to sell cocaine

directly out of the "pink house." Russell's co-conspirators

were not permitted to sell drugs out of this location.

B. Weapons Use

Testimony at trial also revealed that between 1990 and

1994, Russell had his girlfriend, Melita Garcia, purchase a

number of guns for him. Garcia testified that she

purchased the weapons with cash given to her by Russell.

Although there was no testimony relating to Russell's

specific use of the guns during particular drug

transactions, the government introduced evidence, over

Russell's objection, pertaining to Russell's arrest in 1991 in

Maple Shade, New Jersey. At the time of the arrest, Russell

was traveling with Mark Smith from New York where they

had purchased cocaine from one of Russell's sources. When

the car was stopped, the police discovered a gun in the

trunk, together with 473 grams of cocaine and packaging

material. Russell pleaded guilty to the gun charge and was

released for time served.

Another witness, Andre Grimes, testified that in another

incident relating to the drug operation, Russell used a knife

3

to assault George Felder. Grimes testified that in October

1994, he and Russell assaulted Felder because Felder had

allegedly stolen approximately $400 to $500 in drug

proceeds belonging to Russell. App. at 383-85. Grimes

explained that when he and Russell approached Felder

about the stolen money, Felder had a knife. App. at 385.

Grimes testified that he felt threatened, picked up a bat

and started hitting Felder with it. Id. He further testified

that when Felder dropped the knife, Russell picked it up

and "started slicing him with it." Id. at 386. On the basis of

this testimony, the court assessed a two-level increase to

Russell's base offense level for possessing a dangerous

weapon during the course of the offense, pursuant to

S 2D1.1(b)(1) of the Sentencing Guidelines.

C. Sentence

To compute Russell's offense level under the Sentencing

Guidelines, the district court held a hearing concerning the

quantity of drugs attributable to him. Ultimately, the court

concluded that the quantity of drugs for which Russell was

responsible could not be discerned from the trial testimony,

and that "[t]he best estimate available to the court of a drug

quantity for which Russell is responsible is found in the

stipulations regarding drug quantity to which Russell's co-

conspirators entered after pleading guilty to conspiring with

Russell." App. at 137. Because Russell's co-conspirators

stipulated that they were responsible for quantities not

exceeding 20 kilograms of powder cocaine and 250 grams

of cocaine base, the court determined that Russell was

responsible for the same amount. Thus, the court assessed

Russell's base offense level, under S 2D1.5(a)(1), at 38. With

the two-level increase for possession of a firearm and a two-

level increase for obstruction of justice, Russell's resulting

offense level was 42. Applied to his criminal history

category of II, his resulting imprisonment range under the

Sentencing Guidelines was 360 months to life.

Russell appeals the conviction and sentence entered by

the district court. The district court had jurisdiction under

18 U.S.C. S 3231, and we have jurisdiction under 18 U.S.C.

S 1291.

4

II.

A. The CCE Statute & Specific Unanimity

The CCE statute under which Russell was convicted

requires that the government prove the following elements:

(1) that the defendant committed a drug-related felony

under U.S.C. Title 21, Chapter 13, subchapter I or II; (2)

that this violation was part of a "continuing series of

violations" of the subchapter; (3) that the defendant acted

as an organizer, supervisor or manager of five or more other

persons in committing this series of violations; and (4) that

the defendant obtained "substantial income or resources"

from such activities. 21 U.S.C. S 848.

At issue here is the second element, which requires proof

that "such violation is a part of a continuing series of

violations." Id. With respect to this issue, the trial judge

instructed the jury as follows:

The phrase, a continuing series of violations means

three or more violations of the federal narcotics laws

which are in some way -- laws which are in some way

related to each other. In order to find that this element

has been established, you must unanimously agree

that the Defendant, Mr. Russell, participated in at least

three or more violations of the federal narcotics laws

which are in some way related to each other

App. at 2094. Russell claims that the district court's

instruction failed to advise the jury of the requirement that

they unanimously agree as to the identity of the three

related drug offenses constituting the criminal enterprise.

Appellant's Br. at 27. At trial the government introduced

substantial evidence of Russell's drug-related activity. But

Russell claims that the general unanimity instruction

permitted the jury to convict him so long as each juror was

convinced that he had committed a series comprised of any

three related drug violations, regardless of whether they

unanimously agreed as to the identity of each underlying

violation. See, e.g., United States v. Edmonds, 80 F.3d 810,

814 (3d Cir. 1996) ("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.").

5

While it is true that in most cases a general unanimity

instruction is sufficient to support a conviction, see United

States v. Beros, 833 F.2d 455, 460 (3d Cir. 1987), a specific

unanimity instruction is required "where the complexity of

the case, or other factors, creates the potential that the jury

will be confused." Id.; cf. United States v. Ryan, 828 F.2d

1010, 1020 (3d Cir.), rev'd on other grounds, United States

v. Wells, 117 S. Ct. 921 (1997) ("[I]n any case where a

count will be submitted to the jury on alternative theories,

prudence counsels the trial court to give an augmented

unanimity instruction if the defendant requests such a

charge. Unanimity is an indispensable element of a federal

jury trial.") (internal citation omitted). The purpose of a

specific unanimity instruction is to ensure that the jurors

are "in substantial agreement as to just what a defendant

did as a step preliminary to determining whether the

defendant is guilty of the crime charged." Beros, 833 F.2d

at 460 (quoting United States v. Gipson, 553 F.2d 453, 457-

58 (5th Cir. 1977)).

In Edmonds, we had to decide whether jury instructions

relating to a charge under the CCE statute must direct the

jury to agree unanimously on which of the alleged

violations constitute the continuing series required by the

statute. We held that a general unanimity instruction was

insufficient to support a conviction under the CCE statute,

concluding that the statute "requires unanimous agreement

as to the identity of each of the three related offenses

comprising the continuing series."1 Edmonds, 80 F.3d at

822 (emphasis added). Our decision in Edmonds was rooted

in the principle that a federal defendant in a criminal trial

has a constitutional right to a unanimous jury verdict. Id.

at 823 ("[T]he district court's failure to give . . . [the]

proposed specific unanimity instruction was error . . .

implicat[ing] Edmonds's Sixth Amendment right to a

unanimous verdict in a federal criminal trial."); see also,

_________________________________________________________________

1. In United States v. Echeverri, 854 F.2d 638 (3d Cir. 1988), we held

that a jury considering a CCE charge must unanimously agree on which

three acts constitute the continuing series of violations. In Edmonds,

sitting en banc, we explicitly recognized "the opportunity to reconsider

Echeverri" and reaffirmed the decision reached in that case. 80 F.3d at

812.

6

Andres v. United States, 333 U.S. 740, 748 (1948)

("Unanimity in jury verdicts is required where the Sixth and

Seventh Amendments apply."); Beros, 833 F.2d at 461

("[J]ust as the sixth amendment requires jury unanimity in

federal criminal cases on each delineated offense that it

finds a defendant culpable, it must also require unanimity

regarding the specific act or acts which constitutes that

offense.") (internal citation omitted).

The jury instruction at issue in this case is

constitutionally deficient in the same manner as was the

instruction in Edmonds. In Edmonds, the trial court

instructed the jury as follows:

The government has to prove [ ] 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.

80 F.3d at 813. Although Russell's jury was instructed that

they must "unanimously agree" that he "participated in at

least three or more violations of the federal narcotics laws,"

App. at 2094, this charge still amounted to a general, not

a specific, unanimity instruction. The jury should have

been instructed that unanimous agreement was required

not only to find the existence of a continuing series, but in

determining the composition of that series. Our holding in

Edmonds was clear: "[t]he CCE statute requires unanimous

agreement as to the identity of each of the three related

offenses comprising the continuing series." Edmonds, 80

F.3d at 822 (emphasis added); see also Gipson, 553 F.2d at

456-57 ("The unanimity rule . . . requires jurors to be in

substantial agreement as to just what a defendant did as a

step preliminary to determining whether the defendant is

guilty of the crime charged.")

To be sure, the government introduced compelling

evidence that Russell had, in fact, engaged in a large

number of drug-related transactions, any number of which

could have been the basis for an individual juror's

determination that he had participated in a continuing

series of violations under the CCE statute. But the

7

instruction given by the district judge permitted the jurors

to convict on the CCE count even if different jurors

determined that Russell had committed different acts.

Although the jurors may, in fact, have unanimously agreed

on a particular set of predicate acts, we cannot speculate as

to the content of the jury's deliberations. See United States

v. Beros, 833 F.2d 455, 461 (3d Cir. 1987) (" `[W]e are not

free to hypothesize whether the jury indeed agreed to and

was clear on the' transaction or theory by which it found

[the defendant] guilty.") (quoting United States v. Echeverry,

698 F.2d 375, modified, 719 F.2d 974 (9th Cir. 1983) (en

banc)). Thus, because the jurors may well have agreed that

a continuing series of violations had occurred, yet disagreed

as to the identity of the three related offenses comprising

the series, we conclude that the district court's failure to

give a specific unanimity charge violated Russell's Sixth

Amendment right to a unanimous verdict.2

B. Standard of Review

1. Preservation of Issue for Appeal

Though we have concluded that the charge on the CCE

continuing series element was error, we must nevertheless

determine whether it constituted reversible error. The

government argues, and the dissent agrees, that Russell

failed to preserve this issue, and thus the standard of

review is plain error. For the following reasons, we believe

that the issue was properly preserved, and therefore review

for harmless error.

Rule 30 of the Federal Rules of Criminal Procedure

provides that:

_________________________________________________________________

2. We do not suggest that in addition to a specific unanimity charge, a

special verdict form must be submitted to the jury requiring it to

enumerate the specific predicate acts which it has determined constitute

the continuing series. Nor do we believe it appropriate to prescribe

specific language to be used when charging a jury with respect to the

continuing series element of a CCE count. Just how the goal of ensuring

unanimous agreement is better left to the insight and experience of

district court judges on a case by case basis. We merely reaffirm our

holding in Edmonds that the jury be instructed to reach unanimous

agreement on the identity of the offenses constituting the continuing

series.

8

No party may assign as error any portion of the charge

or omission therefrom unless that party objects thereto

before the jury retires to consider its verdict, stating

distinctly the matter to which the party objects and the

grounds of the objection.

The purpose of this provision is to allow the district court

an opportunity to correct potential problems in jury

instructions before the jury begins its deliberations. See

United States v. Logan, 717 F.2d 84, 91 (3d Cir. 1983)

("Rule 30 has the manifest purpose of avoiding whenever

possible the necessity of a time-consuming new trial by

providing the trial judge with an opportunity to correct any

mistakes in the charge before the jury begins to

deliberate.") (internal citation omitted).

The trial record in this case discloses the following

sequence of events with respect to the charge. First, the

judge gave a CCE charge which did not require specific

unanimity with respect to the continuing series of offenses.

App. at 2091-99. Next, the judge stated that the he would

meet with counsel to "find out any objections or exceptions

to the charge," and dismissed the jury for lunch. App. at

2141. During the ensuing conference, the prosecutor and

defense counsel engaged in a discussion concerning the

applicability of the Edmonds case. Russell's counsel argued

that a special verdict was required by Edmonds. The

government argued that the instruction as given was

consistent with Edmonds. App. at 2145. The court then

stated that it would consider the issue during the lunch

break, App. at 2145, but the issue was not revisited.

Although Russell's counsel did not explicitly state that he

was objecting to the CCE instruction,3 the colloquy between

the court and counsel regarding the Edmonds case, and the

_________________________________________________________________

3. Defense counsel made the following statement to the judge:

[Y]ou asked about the form, the form of the verdict and whether I

thought that there was any change that needed to be made. I was

attempting to point out that my interpretation of[Edmonds] seems

to suggest that there is a need for a special verdict page that

requires the jury to fill in three blank lines of which three

federal

felony offenses that have unanimously agreed upon having been

committed by the defendant.

9

context in which this conversation took place (an on-the-

record conference to discuss objections and exceptions to

the charge), lead us to conclude that the trial judge had

sufficient notice of a possible error in the CCE jury

instruction. As we noted earlier, the crux of Rule 30 is that

the district court be given notice of potential errors in the

jury instructions, not that a party be "required to adhere to

any formalities of language and style to preserve his

objection on the record." United States v. O'Neill, 116 F.3d

245, 247 (7th Cir. 1997) (internal citations omitted).4

Russell's trial counsel alerted the court to his belief that the

charge as given did not comply with our decision in

Edmonds, and the judge's statement that he would review

the issue suggests that the court understood this as an

objection (or at the very least, a point of disagreement with

the charge as given).

_________________________________________________________________

4. To the extent this sentiment has been expressed even more clearly in

the civil context, it serves to further demonstrate why the dissent relies

upon an overly formalistic interpretation of Rule 30 and its

requirements. Interpretations of Rule 51 of the Federal Rules of Civil

Procedure, the civil analog to Rule 30, indicate that formal objections

are

not required. See, e.g., Larry V. Muko, Inc. v. Southwestern Pennsylvania

Bldg. and Const. Trades Council, 670 F.2d 421, 425 (3d Cir. 1982) (issue

preserved for appeal where the party "may not have formally objected to

the jury charge, [but] it is clear from the record that the judge was made

aware of [the party's] position before the jury retired to consider its

verdict") (internal citation omitted); Kroger Co. v. Roadrunner Transp.,

Inc., 634 F.2d 228, 230 (5th Cir. 1980) ("The Rule does not require

formality, and it is not important in what form an objection is made or

even that a formal objection is made at all, as long as it is clear that

the

trial judge understood the party's position . . . The purpose of the Rule

is to inform the trial judge of possible errors so that he may have an

opportunity to correct them.") (emphasis added) (internal citation

omitted). The dissent relies heavily upon Rule 30's admonition that a

party state "distinctly the matter to which th[e] party objects and the

grounds of the objection." This language is virtually identical to that in

Rule 51 which states that a party must "state distinctly the matter

objected to and the grounds of the objection." Thus, while we agree with

Judge Alito's statement that Rule 30 "is a vitally important rule," we

also

believe it would be nonsensical not to furnish criminal defendants with

the same flexible, common-sense interpreation we afford litigants in the

civil context.

10

Certainly, an objection must be specific enough not only

to put the judge on notice that there is in fact an objection,

but to serve notice as to the underlying basis for the

objection. United States v. Sandini, 803 F.2d 123 (3d Cir.

1986). For example, in Sandini we determined that the

substance of a colloquy between the judge and defense

counsel was insufficient to have put the trial judge on

notice that an objection was based on Rule 404(b) of the

Federal Rules of Evidence, because defense counsel simply

repeated three times that the information was "irrelevant."

803 F.2d at 126. Here, however, the trial court was put on

notice that Russell believed that the instruction was

incorrect because it lacked the requisite specificity, and

that the basis for this belief was our decision in Edmonds.5

Finally, the context in which the colloquy between the

court and the attorneys took place provides an additional

basis for concluding that a proper objection was made. The

judge convened this on-the-record meeting specifically to

"find out any objections or exceptions to the charge." App.

at 2141. This is, of course, a common practice in both

_________________________________________________________________

5. We do not share the dissent's concern that during the colloquy,

Russell's counsel argued that Edmonds required a special verdict form,

see note 4, a position we have refused to adopt in this case. The dissent

urges that we have committed a "serious error" by obscuring the

distinction between an objection to a jury instruction and a request for

a special verdict sheet, but we have done no such thing. To be clear, the

only relevance we have placed on the defendant's request for a special

verdict sheet is that it put the judge on notice that specific unanimity

was needed. True, Russell's counsel, in requesting a special verdict form,

may have overemphasized what Edmonds required. But it is undeniable

that his remarks were sufficient to put the trial court on notice that, at

the very least, he did not believe that the charge as given was in

compliance with our holding in Edmonds. See United States v. Rosero, 42

F.3d 166, 173 (3d Cir. 1994) (Although alternative instruction advanced

by defendant "was also erroneous," defense counsel, in objecting to

court's charge, provided a clear explanation as to why the instruction

was erroneous and therefore "preserved valid objections to the erroneous

portion of the instructions.") Specifically, defense counsel called the

judge's attention to the relevant language in Edmonds, which the judge

indicated he would read. Ultimately, it was for the court to determine

whether Edmonds required a special verdict form or simply a specific

unanimity instruction. No such determination was ever made.

11

criminal and civil trials and serves as an invitation to

counsel to suggest corrections or amendments to the

charge, or to state or reiterate objections. Defense counsel

took this opportunity to engage the court and prosecutor in

an extended debate about whether or not the jury

instruction at issue was consistent with Edmonds. We

believe the court must have understood that Russell's

counsel was stating an objection to the charge as given;

thus, this issue was properly preserved for our review.6

2. Proposed Alternative Instruction

In addition to posing his objection, Russell's counsel

proposed an alternative jury instruction, one which

required specific unanimity as to the series of offenses

under the CCE count. In our view, this constitutes an

additional ground for applying a harmless error standard in

this case.7

The failure to give the defendant's proposed jury

instruction formed the primary basis for our decision in

Edmonds. While our holding was certainly premised upon

our discussion as to whether the court's charge was

sufficient to assure jury unanimity, our primary focus was

_________________________________________________________________

6. The dissent also urges that because Russell's counsel objected to

instructions 51 and 43 (neither of which had anything to do with

Edmonds), but failed to object to the general unanimity instruction at

the same time, the issue was not preserved. However, as we have noted,

Russell's counsel believed that a special verdict form was required by

Edmonds. This belief, while incorrect, was not unreasonable. At the time

Russell's counsel specifically objected to jury instructions 51 and 43, he

did not know that the judge would not be using his proposed special

verdict form. Although a special verdict form is not required, from the

perspective of Russell's counsel a general unanimity instruction coupled

with a special verdict form would have assured specific unanimity.

Therefore, defense counsel had no reason to object to the unanimity

instruction until the judge had ruled on his request for a special

verdict.

Again, the underlying purpose of Rule 30 is to put the judge on notice

as to potential errors. Here, as we discussed above, we believe the judge

was put on notice of an Edmonds problem.

7. Defendant's proposed jury instruction Number 41 stated in pertinent

part that "[y]ou as a jury, must agree unanimously on the three acts

which constitute the continuing series of Federal Drug Law violations."

Appellee's Supplemental Appendix at 25.

12

whether "the court's failure to give [the defendant's]

proposed specific unanimity instruction" constituted error.

Edmonds, 80 F.3d at 823.

Although it is unclear that proposing an alternative jury

instruction is itself sufficient to preserve the issue for

appeal, at least two of our cases have indicated that the

plain error standard will be applied when there has been no

specific objection to the charge as given and no alternative

jury instruction has been submitted. See, e.g., Beros, 833

F.2d at 458 ("review under the more deferential`plain error'

standard is appropriate in cases where no objection to jury

instructions is made, or where no alternative jury

instructions are proposed") (internal citations omitted);

United States v. DeCarlo, 458 F.2d 358, 370 (3d Cir. 1972)

(plain error analysis is applied "[i]n the absence of an

alternative request or specific objection" to the charge).

Other circuits have employed this analysis as well. See,

e.g., United States v. Payseno, 782 F.2d 832, 834 (9th Cir.

1986) (Where defendant "did not request a specific

unanimity instruction and failed to object to the court's

instructions as given" appellate court will review for plain

error.); United States v. Donathan, 65 F.3d 537, 540 (6th

Cir. 1995) ("Since defendant neither requested nor

submitted [an alternative] instruction, and did not object to

the instructions given by the trial judge, the jury

instructions are reviewable only for plain error."). However,

at least two circuits have indicated that proposing an

alternative jury instruction, without more, is insufficient to

preserve the issue. See United States v. Tannenbaum, 934

F.2d 8, 14 (2d Cir. 1991) ("[R]equested instructions do not

substitute for specific objections to the court's

instructions.") (quoting United States v. Graziano, 710 F.2d

691, 696 n.8 (11th Cir. 1983).

Because we hold that the colloquy between the district

judge and trial counsel was tantamount to an objection and

therefore sufficient to preserve this issue for our review, we

need not determine here whether or not proposing an

alternative instruction would be sufficient in and of itself to

avoid a plain error standard of review. However, under the

facts of this case, where defense counsel not only proposed

an alternative jury instruction but engaged the court and

13

prosecutor in a colloquy regarding an alleged error in the

charge, the issue was sufficiently preserved to invoke a

harmless error analysis.

3. Plain Error Analysis

We have concluded that the appropriate standard of

review in this case is harmless error. The government took

the position at oral argument that the appropriate standard

is plain error. The dissent agrees. Ultimately, however, we

believe the jury charge constituted reversible error even

under the more deferential plain error standard.

For there to be plain error, there must be an "error" that

is "plain" and that "affects substantial rights." United States

v. Retos, 25 F.3d 1220, 1228 (3d Cir. 1994) (quoting United

States v. Olano, 507 U.S. 725 (1993)). A deviation from a

legal rule is "error." Id. at 733. A "plain" error is one which

is "clear" or "obvious." Id. at 734. In this case the court

erred when it "deviated from the legal rule" that jurors must

be instructed as to the requirement of specific unanimity

to find a continuing series under the CCE statute.

Furthermore, the error was plain in that it was "clear" and

"obvious" from even a cursory reading of our decision in

Edmonds that a finding of specific unanimity was required

to sustain a CCE conviction. Edmonds, 80 F.3d at 822; see

also United States v. Stansfield, 101 F.3d 909, 920 (3d Cir.

1996) (omission of essential element of offense from jury

instructions "usually will be obvious error," therefore

satisfying the requirements that there be "error" and that

the error be "plain").

Having determined that the error was plain, we must now

examine whether the error "affected substantial rights,"

thus constituting reversible error under plain error review.

See Retos, 25 F.3d at 1228. We have no hesitation in

concluding that the error did affect a substantial right of

Mr. Russell -- his constitutional right to a unanimous jury

verdict on each element of the CCE charge. The Supreme

Court has held that due process requires "proof beyond a

reasonable doubt of every fact necessary to constitute the

crime with which [the defendant] is charged." United States

v. Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993) (quoting In re

Winship, 397 U.S. 358, 364 (1970)). See Government of

14

Virgin Islands v. Brown, 685 F.2d 834 (3d Cir. 1982) ("The

omission of an essential element of an offense in the charge

to the jury ordinarily constitutes plain error.") At least one

other circuit has found plain error under circumstances

similar to those presented here. See United States v.

Payseno, 782 F.2d 832, 836-37 (9th Cir. 1986) (after trial

court gave a general unanimity instruction, the reviewing

court found that there was a genuine possibility that the

jurors were not unanimous as to which of the charged

offenses supported the verdict, and held that the failure to

give a specific unanimity instruction therefore constituted

plain error).

C. Harmless Error Analysis

Under a harmless error review, if we find a constitutional

error, we may affirm the district court "only if the error is

harmless beyond a reasonable doubt." United States v.

Molina-Guevara, 96 F.3d 698, 703 (3d Cir. 1996) (citing

Chapman v. California, 386 U.S. 18, 24 (1967)). Under the

facts of this case, we cannot conclude that the error in the

charge to the jury was harmless beyond a reasonable

doubt, and therefore must reverse.

Although the government introduced a vast array of

evidence regarding Russell's drug-related activity, and the

jury determined that Russell was engaged in a continuing

series of violations, as we discussed above, it is impossible

to conclude beyond a reasonable doubt that the jury

reached unanimous agreement as to which specific

violations occurred. Therefore, we can only conclude that

Russell was deprived of his Sixth Amendment right to a

unanimous jury verdict. See, e.g., Beros, 833 F.2d at 463

("Because there is a significant possibility that this error

may have resulted in a non-unanimous verdict in violation

of the Sixth Amendment, the district court's instructions

were not harmless beyond a reasonable doubt."). Despite

the enormous volume of evidence introduced against

Russell, "we cannot affirm a non-unanimous verdict simply

because the evidence is so overwhelming that the jury

surely would have been unanimous had it been properly

instructed on unanimity." Edmonds, 80 F.3d at 824.

In Edmonds we ultimately determined that the failure of

the court to provide a specific unanimity instruction was

15

harmless error. But the facts which formed the basis for

that conclusion are not present in this case. In Edmonds,

the defendant was convicted of every violation alleged to

constitute the continuing series for the CCE charge.

Edmonds, 80 F.3d at 812-13. We did not have to speculate

whether the jurors reached agreement as to the identity of

each of the three offenses constituting the series, because

we had a jury verdict which demonstrated that each juror

believed the defendant to be guilty of all of the violations

constituting the series.

Russell, on the other hand, was not charged separately

with all of the underlying offenses which, according to the

government, constituted the continuing series for the CCE

count.8 Although he was convicted of conspiracy to

distribute controlled substances, and the government has

urged that this is the "functional equivalent" of a finding of

unanimity on the continuing criminal enterprise charge,

Appellee's Br. at 34-35, we cannot agree. The jury returned

a unanimous verdict on the conspiracy charge, but we can

only conclude from this that the jury agreed that Russell

was guilty of that one predicate offense.

The CCE statute requires that the defendant participate

in a "continuing series" of violations of the federal drug

laws. 21 U.S.C. S 848. We have held that a"continuing

series" consists of three or more separate violations.

Echeverri, 854 F.2d at 643. A jury finding that the

defendant was guilty of a single predicate act cannot be the

"functional equivalent" of a jury finding that the defendant

participated in a continuing series of three violations. It is

on this basis that we hold that the district court's failure to

instruct the jury as to the requirement of specific

unanimity for the continuing series element did not amount

to harmless error.

_________________________________________________________________

8. Although Russell was charged with multiple counts, only the count of

conspiracy to distribute controlled substances under 21 U.S.C. S 846

could qualify as a CCE predicate act, because the CCE statute expressly

requires that the violations constituting the continuing series be of

U.S.C. Title 21, Chapter 13, subchapter I or II. 21 U.S.C. S 848.

16

D. Conclusion

In summary, we hold that the jury instruction at issue

was erroneous because it failed to apprise the jury of their

responsibility to unanimously agree on the identity of the

three predicate violations constituting the continuing series

required for a CCE conviction. Furthermore, the failure to

give a proper unanimity instruction constitutes reversible

error under either a harmless error or plain error standard

of review. Accordingly, we will reverse the defendant's

conviction under 21 U.S.C. S 848, the CCE statute.

III.

Russell has raised a number of other challenges to his

conviction, none of which has merit. We will discuss each

of them in turn.

A. Alleged Evidence of Multiple Conspiracies

Russell contends that his rights were prejudiced by the

admission of evidence of multiple conspiracies at variance

with the single conspiracy alleged in the indictment.

Specifically, Russell maintains that evidence relating to his

activity at the "pink house" and drug activity in

Philadelphia illustrate the existence of two other

conspiracies separate from the Williamsport conspiracy

charged in the indictment. Russell argues that he has been

prejudiced because this evidence permitted the jury"to

consider offenses unrelated to the Williamsport conspiracy

when determining [his] guilt on the conspiracy count." See

Appellant's Br. at 30-38. We disagree. Russell has not been

prejudiced because the evidence offered by the government

supports the finding of a single conspiracy encompassing

the drug activities in Williamsport, Philadelphia and the

"pink house."

To determine whether a series of events constitutes a

single conspiracy or separate, unrelated conspiracies, a

three-step inquiry is required: (1) determining whether

there was a common goal among the conspirators; (2)

examining the nature of the scheme and determining

whether the agreement sought to bring about a continuous

result which could not be sustained without the continued

17

cooperation of the conspirators; and (3) examining the

extent to which the participants overlapped in various

dealings. United States v. Kelly, 892 F.2d 255, 259 (3d Cir.

1989). Clearly, the common goal of this conspiracy was to

make money selling cocaine. After applying the Kelly

factors, it seems obvious that virtually all activities the co-

conspirators engaged in to make money selling cocaine

could be encompassed within this single conspiracy. A

conspiracy charge often casts a wide net, and drug

distribution activities conducted in different locations can

certainly be encompassed within a single conspiracy. Nor

are we concerned that only Russell, not his co-conspirators,

sold drugs out of the "pink house." Co-conspirators do not

have to know all of the details, goals or even the identity of

other co-conspirators, to support the finding of a single

conspiracy. Id. at 260. We therefore affirm the jury's verdict

on the conspiracy count.

B. Admission of Evidence Relating to Maple Shade

Arrest and Handgun Purchases

Russell challenges the admission of evidence relating to

his arrest in 1991 in Maple Shade, New Jersey. He also

challenges the evidence introduced pertaining to several

handgun purchases made on his behalf by Melita Garcia,

his girlfriend. Russell maintains that the events

surrounding the arrest were not relevant to the issues to be

decided by the jury because they occurred in April 1991,

one year prior to the beginning of the conspiracy alleged in

the indictment. He challenges the evidence of handgun

purchases on the basis that: (1) there was no evidence

presented that he actually possessed the guns; and

(2) three purchases occurred prior to the April 1992 date

cited in the indictment as the beginning of the conspiracy.

The events relating to the Maple Shade arrest were

relevant at trial to show a common scheme or plan in

relation to the conspiracy alleged in the indictment. The

evidence at trial established that Russell and Smith were

arrested in Maple Shade on their way from New York where

they had purchased cocaine from one of Russell's sources.

App. at 1272. This same source was later used by Russell

to purchase drugs for his Williamsport operation. From

these events, a jury could reasonably infer a common

18

scheme or plan similar to that operated by Russell in

Williamsport and in which Smith participated. The evidence

was probative to establish an association between Smith

and Russell, to establish how the drug operation functioned

(i.e., drugs supplied from New York), and to establish a

common purpose. See, e.g., United States v. Montoya-Ortiz,

7 F.3d 1171, 1177-78 (5th Cir. 1993) (jury could consider

prior conduct to determine that conduct charged was not

"coincidence, accident, or mistake, but was instead a part

of [a scheme] in furtherance of " a particular goal or

purpose); United States v. Fitzherbert, 13 F.3d 340, 343

(10th Cir. 1993) (evidence of prior marijuana operation

admissible to establish "knowledge, intent, and the

presence of a common scheme or plan.").

Russell's challenge to the admission of evidence relating

to his gun purchases is equally unpersuasive. Russell

contends that the evidence was not relevant because there

was no evidence presented relating to his use or possession

of the guns. In our view, the jurors could have reasonably

concluded that he possessed the guns which were, after all,

purchased for him. Furthermore, it has long been

recognized that firearms are relevant evidence in the

prosecution of drug-related offenses, because guns are tools

of the drug trade. United States v. Muniz, 60 F.3d 65, 71

(2d Cir. 1995); see also United States v. Adams, 759 F.2d

1099, 1109 (3d Cir. 1985) (gun possession probative as to

scale of conspiracy and type of protection conspirators

believed was necessary to protect their operation). Finally,

Russell contends that because three of the gun purchases

occurred prior to the date cited in the indictment as the

beginning of the conspiracy, these purchases cannot be

relevant. We disagree. The jury reasonably could have

concluded that gun purchases completed prior to the

beginning of the drug conspiracy were made with the

anticipation that he would need "protection" to establish his

drug operation.

For the foregoing reasons, we conclude that the district

court's admission of evidence regarding the defendant's

Maple Shade arrest and gun purchases was not an abuse

of discretion.

19

C. Two-Level Increase in Offense Level for Weapons

Possession

The district court imposed a two-level increase in

Russell's offense level for possessing a dangerous weapon

pursuant to S 2D1.1(b)(1) of the Sentencing Guidelines. The

facts which formed the basis for this increase were

Russell's possession of the knife used to assault George

Felder in October 1994, and Russell's possession of two

guns, purchased by Melita Garcia. Russell maintains that

he used the knife in self-defense and argues that this is not

the type of possession contemplated by the Sentencing

Guidelines to warrant a two-level increase. We find this

argument unpersuasive.

The Sentencing Guidelines provide that the two-level

adjustment should be applied "if the weapon was present,

unless it is clearly improbable that the weapon was

connected with the offense." U.S.S.G. S 2D1.1, comment.

(n.3). The testimony relating to the knife assault

unequivocally established that the confrontation between

Russell and Felder involved a dispute about proceeds

generated from drug activity. Under such circumstances,

we cannot conclude that it was "improbable" that the knife

was connected with the offense. Moreover, inasmuch as we

believe that the district court's imposition of the two-level

increase on this basis was proper, we need not determine

whether an adjustment would have been appropriate under

a gun possession theory.

D. Use of Stipulations To Establish Drug Quantity

To sentence a defendant on a drug-related charge, the

district court must determine the quantity of drugs for

which the defendant was responsible. After reviewing the

record from Russell's trial, however, the district court

concluded that the quantity of drugs for which Russell was

responsible could not be discerned from the trial testimony.

In order to ascertain a quantity that could be attributed to

Russell's drug conspiracy and continuing criminal

enterprise, the court relied on stipulations agreed to

between the government and Russell's co-conspirators,

stating that they "form[ed] a highly reliable basis for an

estimate of the drugs attributable to Russell." App. at 134.

20

The district court sentenced Russell based on the same

quantity of drugs his co-conspirators stipulated to, 20

kilograms of powder cocaine and 250 grams of cocaine

base. Russell objects to the district court's method, urging

that it is an unreliable measure of the amount of drugs for

which he was accountable.

We are unpersuaded by Russell's argument. First,

Russell was the organizer of the conspiracy. We believe that

the quantity of drugs for which his co-conspirators have

taken responsibility provides a reliable basis for estimating

the quantity of drugs attributable to him. Second, even if

the estimate was unreliable, it was overgenerous to Russell.

The evidence at trial showed that because of his operation

at the "pink house," Russell actually participated in a

greater number of drug transactions than did his co-

conspirators. For the foregoing reasons, we affirm the

sentence imposed by the district court for Russell's

conspiracy conviction. We will reverse Russell's conviction

and vacate his sentence on the CCE count, and remand for

further proceedings consistent with this opinion.

21

ALITO, Circuit Judge, concurring and dissenting:

I concur in the affirmance of the defendant's conspiracy

conviction, but I respectfully dissent from the reversal of

his conviction for conducting a continuing criminal

enterprise (CCE), in violation of 21 U.S.C. S 848. The

majority reverses that conviction because of an error in the

CCE jury instruction, viz., the omission of an instruction

specifically advising, as our court held in United States v.

Edmonds, 80 F.3d 810 (3d Cir. 1996) (in banc), that the

jurors were required to agree unanimously on the three

CCE predicates that the defendant committed. Unlike the

majority, I do not think that the defendant's trial counsel

objected to this omission, as Rule 30 of the Federal Rules

of Criminal Procedure demands. I therefore believe that the

question before us in this appeal is whether the challenged

omission constituted "plain error" (Fed. R. Crim. P. 52(b)),

and I do not think that the demanding test for "plain error"

is met here.

1. Before discussing defense counsel's failure to object to

the instruction in question, I think that it may be helpful to

provide some background regarding the unanimity

requirement that is involved in this appeal. In order to be

convicted under 21 U.S.C. S 848 for conducting a

continuing criminal enterprise, a defendant must have

committed a felony violation of the federal drug laws, and

this violation must be "a part of a continuing series" of

such violations. In United States v. Echeverri, 854 F.2d 638,

642 (3d Cir. 1988), a panel of our court held that a "series"

in this context means at least three violations. Id. The panel

further held that the jury must agree unanimously on the

three violations that are used to support a CCE conviction

and that a trial judge must, on request, give a jury

instruction specifically setting out this unanimity

instruction. Id. at 642-43.

In Edmonds, a later CCE prosecution, the district court

refused to give such an instruction, and a panel of our

court held that this refusal required reversal. In a

concurring opinion, Judge Hutchinson observed that, if the

panel had not been bound by Echeverri, he would have

been "inclined to follow the reasoning of the Seventh Circuit

in United States v. Canino, 949 F.2d 928, 947-948 (7th Cir.

22

1991), cert. denied, [503 U.S. 996 and cert. denied, 504

U.S. 910 (1992)]," which held that the jurors in a CCE case

need not agree unanimously on the particular CCE

predicates. Slip op. at 26 (Hutchinson, J., concurring).

Similarly, Judge Garth, in concurrence, stated that he

"shar[ed] Judge Hutchinson's concerns regarding the

Echeverri doctrine." Slip op. at 28 (Garth, J., concurring in

part and dissenting in part). He added that he perceived

"conceptual tension" between Echeverri and our court's

decision in United States v. Jackson, 879 F.2d 85 (3d Cir.

1989), in which we held that jurors need not agree

unanimously on the identities of the five or more persons

that a CCE defendant organized, supervised, or managed.

Slip op. at 28 (Garth, J., concurring in part and dissenting

in part). Judge Garth suggested that this tension"call[ed]

for further resolution." Id.

The panel opinion in Edmonds was filed on April 18,

1995, and Russell's trial commenced a few weeks later, on

June 5, 1995. On June 29, 1995, during the course of that

trial, the government's petition for rehearing in banc in

Edmonds was granted and the panel opinion was vacated.

Russell's jury was instructed on July 12, 1995 -- after

Edmonds was listed for rehearing in banc and well before

that case was reargued (October 25, 1995) and the in banc

decision was handed down (April 4, 1996).

In Edmonds, the full court held, by a narrow vote, that

the CCE statute requires that jurors agree unanimously on

the particular CCE predicates. The court further held that

the district court's refusal to give a specific unanimity

instruction was erroneous but that the error was harmless.

For the reasons set out in my concurring opinion and

Judge Garth's concurring opinion in Edmonds, I continue

to believe that the CCE statute does not contain any such

special unanimity instruction, but I recognize that we are

bound to follow that holding here.

2. With this background in mind, I turn to the que stion

whether defense counsel in this case adequately objected to

the instruction on which the majority relies. Rule 30 of the

Federal Rules of Criminal Procedure provides in pertinent

part as follows:

23

No party may assign as error any portion of the charge

or omission therefrom unless that party objects thereto

before the jury retires to consider its verdict, stating

distinctly the matter to which that party objects and

the grounds of the objection.

This is a vitally important rule. It promotes judicial

economy by eliminating unnecessary appeals and retrials.

More important, because appellate reversals and retrials

produce delay, and because delay often results in the loss

or impairment of evidence, Rule 30 serves to promote

accuracy in jury verdicts. As the majority points out, a

lawyer is not required to use any special language to satisfy

Rule 30; the lawyer must simply use words that are

reasonably calculated to get the message across. In this

case, however, defense counsel did not do so.

After the district court judge completed his charge, he

asked whether counsel had any objections. Supp. App. at 6.9

Defense counsel then objected to the trial judge's failure to

cover two instructions requested by the defense, i.e.,

number 51 and number 43. Id. at 7-8. Neither of these

requested instructions had anything to do with the issue of

jury unanimity regarding particular CCE predicates. After

the district court ruled on these two matters, the following

exchange occurred:

THE COURT: Do you have anything else?

MR. TRAVIS [defense counsel]: No, Your Honor.

Id. at 9.

The jury then retired to deliberate and subsequently sent

out a note requesting "a limited reading of the Judge's

charge as to count one [the CCE count]." App. at 2155.10 In

response, the court proposed to read virtually the entire

charge concerning the CCE count, and both counsel

agreed. Id. at 2156. As a result, the district court once

again read to the jury the portion of the charge that the

_________________________________________________________________

9. "Supp. App." refers to the Supplemental Appendix filed by the

government.

10. "App." refers to the appendix filed by the appellant.

24

defendant now challenges on appeal. The following then

occurred:

THE COURT: ...Do you have any objection to those

instructions, counsel?

MR. ROCKTASHEL [the prosecutor]: No, Your H onor.

THE COURT: Do you, sir?

MR. TRAVIS [defense counsel]: No, Your Hono r.

Id. at 2163-64.

Thus, defense counsel twice told the trial judge that he

had no objection to the jury instruction that is challenged

in this appeal. Moreover, defense counsel never mentioned

or referred even obliquely to Edmonds during the colloquy

devoted to objections to the instructions. Accordingly,

defense counsel did not, in my view, adequately convey to

the trial judge the simple message that was necessary in

order to comply with Rule 30, i.e., "Judge there's a mistake

in the jury charge. It doesn't tell the jurors that they must

agree unanimously regarding the three CCE predicates."

It is true that defense counsel did subsequently mention

Edmonds, but he did so in connection with an entirely

different question, i.e., whether the district court should

give the jury a special verdict sheet concerning the CCE

predicates. Some time after the colloquy concerning the

jury instructions, the court stated:

Now, there is one other thing, and that is ... I

understood you to say, Mr. Travis, that there were

certain specific findings that were required under

Count One.

July 12, 1995 Tr. at 70. Defense counsel then referred to

the panel decision in Edmonds (which, as previously noted,

had been filed on April 18, 1995, but vacated on June 29,

1995, when rehearing in banc was granted). Defense

counsel stated: "[T]he impression I had was that you had to

give [the jurors] a special verdict page where they said,

these are the three violations ..." App. at 2143. The court

asked:

THE COURT: Well what are you asking that we do?

25

Id. Defense counsel responded as follows:

Well I -- you asked about the form, the form of the

verdict and whether I thought that there was any

change that needed to be made. I was attempting to

point out that my interpretation of [Edmonds] seems to

suggest that there is a need for a special verdict page

that requires the jury to fill in three blank lines of

which three federal felony offenses they have

unanimously agreed upon having been committed by

the Defendant, if they agree on that element.

Id. (emphasis added). The district court judge said that he

would read the Edmonds panel opinion, but he observed

that he thought that "there's a general reluctance on the

Court of Appeals to require any special verdict forms in

criminal cases." App. at 2144. Later, the court decided not

to give the jury a special verdict sheet, and the defendant

does not challenge that decision on appeal.

I disagree with the majority's conclusion that defense

counsel, by requesting a special verdict sheet, adequately

conveyed to the district court the message that the court's

jury instruction was inconsistent with the Edmonds panel

decision. As noted, defense counsel, by this point, had

twice failed to object to the challenged jury instructions,

and when defense counsel finally mentioned Edmonds and

the trial judge pointedly asked, "Well, what are you asking

that we do" (App. at 2143), defense counsel's only request

was that the court give the jury a special verdict sheet. Id.

In my view, the question whether a trial judge is required

to give a special instruction on jury unanimity in a CCE

case is separate from the question whether a trial judge is

required to use a special verdict sheet. Although the

Edmonds panel and in banc decisions held that it is error

to decline to give a special jury unanimity instruction when

one is requested, neither the Edmonds panel opinion nor

the Edmonds in banc opinion requires a special verdict

sheet. On the contrary, we have held that, as a general

matter, a district court "has discretion in determining

whether to submit special interrogatories to the jury

regarding the elements of an offense." United States v.

Console, 13 F.3d 641, 663 & n.23 (3d Cir. 1993). By

26

obscuring the important distinction between an objection to

a jury instruction and a request for a special verdict sheet,

the majority, I believe, has committed a serious error.

In addition to relying on defense counsel's request for a

special verdict sheet, the majority also relies on the

defendant's proposed jury instruction number 41, which

stated in pertinent part that the jury was required to "agree

unanimously on the three acts which constitute the

continuing series of Federal Drug Law violations." See Maj.

Op. at 12 n.7 (quoting Supp. App. 25). If defense counsel

had objected to the court's charge on the ground that it

failed to cover this point, and if the district court had

nevertheless declined to cover that point, then this case

would be indistinguishable from Edmonds, and I would join

the majority in voting to reverse. However, that is not what

occurred. After the district court completed its jury

instructions and asked defense counsel whether he had

any objections, defense counsel referred to the 93 pages of

proposed instructions that he had submitted and asked

whether he could assume that any instruction that had not

been given should be "deemed denied." Supp. App. at 6.

The court rejected this suggestion and instructed defense

counsel to assert any objections he had to the instructions

that the court had given. Id. Then, as previously noted,

defense counsel argued that the court had erred in failing

to cover two of the requested defense instructions, i.e.,

numbers 51 and 43. Id. at 7-8. Defense counsel made no

reference to instruction number 41, and therefore it seems

to me that, simply by including that instruction in the large

packet of requested defense instructions, the defense did

not fulfil its obligation under Rule 30 to assert an objection

to the court's instructions and state "distinctly the matter

to which th[e] party objects and the grounds of the

objection."

For these reasons, I would hold that defense counsel did

not adequately object at trial to the jury instruction that is

now challenged on appeal. Consequently, I believe that our

review is limited to determining whether the district court's

instruction constituted "plain error." Fed. R. Crim. P. 52(b).

3. As noted, the in banc court held in Edmonds that, in

order to find a defendant guilty under the CCE statute, 21

27

U.S.C. S 848, a jury must unanimously agree that the same

three related predicate offenses occurred. The court further

held that the district court in that case erred in rejecting a

defense request for an instruction specifically advising the

jurors that they were required to agree unanimously on

which three related violations occurred.

The instruction challenged in this case did not

affirmatively mistake the law, as interpreted in Edmonds.

The instruction did not advise, contrary to Edmonds, that

it was unnecessary for the jurors to agree unanimously

regarding the three CCE predicate offenses that occurred.

In the challenged instruction, the district court stated:

The phrase, a continuing series of violations means

three or more violations of the federal narcotics laws

which are in some way -- laws which are in some way

related to each other. In order to find that this element

has been established, you must unanimously agree that

the Defendant, Mr. Russell, participated in some way in

at least three or more violations of the federal narcotics

laws which are in some way related to each other.

App. at 2094. See also App. at 2158-59. As far as it went,

this instruction was entirely accurate: in order for the jury

to find that Russell violated 21 U.S.C. S 848, it was

necessary that they "unanimously agree that . . . Mr.

Russell participated in some way in at least three or more

violations of the federal narcotics laws which are in some

way related to each other." App. at 2094. The problem with

this instruction is not that it was inaccurate but that it was

incomplete: it did not go on and explain to the jurors that

they were required, not only to agree unanimously that

Russell committed three CCE predicates, but to agree

unanimously with respect to the three particular predicates

that he committed.

In my view, this failure to provide the jury with a more

complete and specific explanation of the unanimity

requirement in a CCE case does not amount to "plain

error." In United States v. Olano, 507 U.S. 725 (1993), the

Supreme Court held that, in order for an appellate court to

find plain error, it must first find 1) an error 2) that is plain

and 3) that affects substantial rights. Even if all three of

28

these prerequisites are met, an appellate court may correct

an error to which no objection was made "only if (4) the

error `seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.' " Johnson v. United

States, 117 S. Ct. 1544, 1549 (1997) (quoting Olano, 507

U.S. at 732) (internal quotation marks omitted).

Here, I agree that the first of these four requirements

(there was an error) was met. But I do not believe that the

second requirement (the error was "plain") was satisfied,

and therefore I need not consider the third or fourth

requirement.

" `Plain' is synonymous with `clear' or, equivalently,

`obvious.' " United States v. Olano, 507 U.S. at 734. As we

have explained:

To find plain error, the mistake must be sufficiently

obvious that "the trial judge and prosecutor were

derelict in countenancing it, even absent the

defendant's timely assistance in detecting it."

Government of Virgin Islands v. Knight, 989 F.2d 619, 632

(1993) (quoting United States v. Frady, 456 U.S. 152, 163

(1982)). In my view, the omission in this case was not

"sufficiently obvious that `the trial judge and prosecutor

were derelict in countenancing it, even absent the

defendant's timely assistance in detecting it.' " Knight, 983

F.2d at 632 (quoting Frady, 456 U.S. at 163). The omission

was simply a mistake, the sort of mistake that would have

constituted reversible error had defense counsel called it to

the trial judge's attention as required by Rule 30, but a

mistake that falls short of constituting "plain error." "The

Supreme Court has admonished courts of appeals to

characterize a mistake as plain error `sparingly, solely in

those circumstances in which a miscarriage of justice

would otherwise result.' " Knight, 989 F.2d at 631 (quoting

United States v. Young, 470 U.S. 1, 15 (1985). "Reviewing

courts are not to use the plain-error doctrine to consider

trial court errors not meriting appellate review absent

timely objection." United States v. Young, 470 U.S. at 16.

That, in my judgment, is what the majority has done here.

For that reason, I dissent from the reversal of the

defendant's CCE conviction.

29

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

30