United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1942

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the District 

* of Nebraska.

Christopher Scott * 

and Johnny Ray Butler, *

*

Appellants. *

___________

Submitted: March 17, 2000

Filed: July 7, 2000

___________

Before WOLLMAN, Chief Judge, and McMILLIAN and MORRIS SHEPPARD

ARNOLD, Circuit Judges.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Christopher Scott and Johnny Ray Butler were found guilty of conspiring to

distribute, or to possess with the intent to distribute, either cocaine or crack cocaine,

see 21 U.S.C. § 841(a)(1), § 846, engaging in a continuing criminal enterprise (CCE),

see 21 U.S.C. § 848, and money laundering, see 18 U.S.C. § 1956(a)(1). The trial
1The Honorable Lyle E. Strom, United States District Judge for the District of

Nebraska.

-2-

court1 vacated each defendant's conspiracy conviction, finding it to be a lesser included

offense of the CCE, see Rutledge v. United States, 517 U.S. 292, 300 (1996), and each

of the defendants was sentenced to life imprisonment based on his CCE conviction. 

We affirmed the defendants' convictions on direct appeal. See United States v.

Johnson, 28 F.3d 1487 (8th Cir. 1994), cert. denied, 513 U.S. 1098, 1195 (1995). The

defendants petitioned for post-conviction relief under 28 U.S.C. § 2255, which the

district court denied. On appeal of that denial, the defendants challenge their CCE

convictions, contending that their attorneys were ineffective for failing to make various

arguments with respect to the jury instructions, and that the trial court erred with

respect to the jury instructions. 

I.

We first address the defendants' contention that their lawyers were ineffective

for failing to request an instruction requiring that the jurors unanimously agree on each

specific predicate drug offense used in support of the CCE conviction. In 1999, the

Supreme Court held that to support a CCE conviction, a jury must agree unanimously

not only that the defendant committed a series of related drug violations but also which

particular violations constituted the series. See United States v. Richardson, 526 U.S.

813, 816, 824 (1999). At the time of trial (1992), and the defendants' direct appeal

(1994), however, neither the Supreme Court nor our circuit had decided whether a jury

in a CCE prosecution had to be instructed that the jurors must agree unanimously on

which specific drug violations were the necessary predicates. Other circuits addressing

the issue had reached differing conclusions. Compare United States v. Canino, 949

F.2d 928, 947-48 (7th Cir. 1991), cert. denied, 503 U.S. 996, 504 U.S. 910, 915

(1992), 525 U.S. 900 (1998) (instruction unnecessary), with United States v.

Echeverri, 854 F.2d 638, 642-43 (3d Cir. 1988) (instruction required), and with United
-3-

States v. Hernandez-Escarsega, 886 F.2d 1560, 1572-73 (9th Cir. 1989), cert. denied,

497 U.S. 1003 (1990) ("better practice" is to give instruction, but harmless error under

facts of case).

At trial, the court instructed the jury that to convict a defendant on the CCE

charges, it must find, inter alia, that that defendant committed "a felony violation of the

federal narcotics laws," see 21 U.S.C. § 848(c)(1), and that the violation "was part of

a continuing series of related violations of the federal narcotics laws," see 21 U.S.C.

§ 848(c)(2); see also United States v. Maull, 806 F.2d 1340, 1342 (8th Cir. 1986), cert.

denied, 480 U.S. 907 (1987). The instructions defined "a continuing series of

violations" as "three or more violations of the federal narcotics laws which are in some

way related to one another," see United States v. Jones, 801 F.2d 304, 307 (8th Cir.

1986). 

To establish ineffective assistance of counsel, a defendant must prove both that

his or her attorney's representation was deficient and that the deficient performance

prejudiced the defendant's case. See Strickland v. Washington, 466 U.S. 668, 687,

692, 694, 700 (1984). We find that even assuming that each defendant's lawyer should

have requested the specific unanimity instruction, neither defendant can prevail,

because neither one of them has established prejudice, i.e., "that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different," id. at 694; see also Williams v. Taylor, 120 S. Ct. 1495,

1511-12 (2000). "A reasonable probability is a probability sufficient to undermine

confidence in the outcome," Strickland, 466 U.S. at 694.

Here, the government offered testimony that the defendants recruited others to

sell crack cocaine. In addition to evidence of an ongoing crack-distribution operation,

testimony was presented that for at least a month during the summer of 1988, the

defendants "fronted" crack cocaine to their recruits by delivering it to them an

estimated three times per week at a house in Omaha. According to the testimony, the
-4-

defendants provided the recruits with at least two to three ounces of crack cocaine at

a time, which was gone by the next day; the defendants provided more whenever it was

needed; and on any given day a few hundred people would come to the crack house to

purchase drugs from the defendants' recruits. One or the other of the defendants would

"front" the drugs on each occasion. Testimony was also offered that two other

conspirators would occasionally come to the house during the relevant period and pick

up packages of crack cocaine from one of the defendants. 

Thus there was evidence that the defendants regularly engaged in related illegal

distributions of crack cocaine, see 21 U.S.C. § 841(a)(1), drug offenses that would

support the CCE conviction, see 21 U.S.C. § 848(c)(2). The jury, having been

instructed, inter alia, that the distribution of crack cocaine was a violation of the

federal drug laws, unanimously found that the defendants engaged in a series of federal

drug law violations. After carefully reviewing the record, we conclude that there is no

reasonable probability that the jurors would have decided differently if they had been

instructed that they must unanimously find three specific felony drug violations

committed by the defendants, and thus we reject the defendants' first claim of

ineffective assistance. 

II.

The defendants also contend that regardless of whether their attorneys were

ineffective, the trial court deprived them of their sixth amendment right to a jury trial

by failing to give an instruction requiring the jury to find unanimously each predicate

drug violation used to support the CCE conviction. The defendants failed to raise this

claim during the trial (or on direct appeal), and therefore they must establish cause and

prejudice or actual innocence. See Bousley v. United States, 523 U.S. 614, 622 (1998).

The defendants do not claim actual innocence but appear to contend that the novelty

of the unanimity argument constitutes cause for failing to raise it. 
-5-

Although a claim that " 'is so novel that its legal basis is not reasonably available

to counsel' " may constitute cause for a procedural default, id., quoting Reed v. Ross,

468 U.S. 1, 16 (1984), at the time of the defendants' trial (and direct appeal), as noted

above, other circuit courts facing the question of whether to require juror unanimity on

the predicate drug violations had reached differing conclusions. At that time, our

circuit had adopted the general rule that a specific unanimity instruction should be given

if a genuine risk of juror confusion existed, see United States v. Hiland, 909 F.2d 1114,

1139-40 (8th Cir. 1990). Under the circumstances, therefore, we find that the law at

the time of the defendants' trial (and direct appeal) offered a reasonable basis upon

which to request a unanimity instruction as to the predicate drug offenses. We

therefore conclude that the defendants have not established cause for their procedural

default with respect to this argument.

III.

The defendants also contend that their attorneys were ineffective for failing to

argue that the jury should have been instructed not to consider as a predicate drug

offense any overt act of the alleged conspiracy involving the same conduct as several

counts of the indictment that were dismissed for insufficient evidence. Although some

overt acts from the dismissed counts were also alleged in the conspiracy count of the

indictment, the defendants have failed to offer a basis for believing that the jury relied

on those specific overt acts to convict on the CCE offense. We therefore conclude that

the defendants have not shown that a reasonable probability exists that the outcome of

the case was affected by their attorneys' failure to request an instruction with respect

to overt acts in counts that were dismissed. See Strickland, 466 U.S. at 694.

IV.

We also reject the defendants' contention that their attorneys were ineffective for

failing to argue that the jury should have been instructed that the alleged conspiracy

could not be one of the predicate drug offenses supporting the CCE conviction.

Initially, we note that although our court has not addressed the issue, at least eight
-6-

circuit courts have held that a related conspiracy may, in fact, be one of the series of

predicate drug violations necessary for a CCE conviction. See generally United States

v. Hicks, 945 F.2d 107, 108-09 (5th Cir. 1991) (per curiam). We need not reach the

issue here, however, because we believe that a fair reading of the CCE instruction --

that it is a federal drug violation to distribute, or to possess with the intent to distribute,

either cocaine or crack cocaine -- directed the jury to consider those crimes rather than

the alleged conspiracy in determining whether a series of drug violations had occurred.

Having carefully reviewed the record, we conclude that even if the jury had been told

that it could not consider the alleged conspiracy as a predicate drug violation, there is

no reasonable probability that "the result of the proceeding would have been different,"

Strickland, 466 U.S. at 694. 

Because we believe that the jury instructions effectively limited the jury's

consideration of predicate acts to the distribution of, or the possession with the intent

to distribute, either cocaine or crack cocaine, we also reject the defendants' argument

that the instructions violated their due process rights by allowing the jury to base its

verdict on other offenses, such as money laundering, see 18 U.S.C. § 1956(a)(1), that

are not proper predicate violations for a CCE conviction, see 21 U.S.C. § 848(c)(2).

V.

Accordingly, we affirm the judgment of the district court. 

We also grant the defendants' motion to supplement the record with the

memoranda of law proffered to the district court in April, 1997.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.