1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"United States v. Russell" (1998). 1998 Decisions. Paper 13.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/13
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 coconspirators 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 twolevel 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-therecord 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 coconspirators 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 coconspirators. 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