### 1998 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

1-16-1998 

# U nit ed S t a t es v

. Ru s sel l

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 96-7760

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1998

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1998 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" U nit e d S t a t e s v

. R us s e l l " (1998). 1998 D e cisio n s

. P a pe r 13.

h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1998/13Filed 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 AppellantGeorge 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 distri bute

controlled substances in violation of 21 U.S.C. S 8 46, and conducting a continuing criminal enterprise (CCE) i n violation of 21 U.S.C. S 848. He was sentenced to t wo concurrent life terms.

Russell's appeal presents a number of challenges to his convictions, the primary one being that the distric t court failed to instruct the jury properly on the CCE cou nt. We will discuss each of Russell's challenges in turn, focusing in

more detail on his claim that the CCE instruction d eprived him of his Sixth Amendment right to a unanimous jur y verdict.

We will conclude that the jury instruction on the C CE

count was erroneous and was not harmless error. Accordingly, we will reverse Russell's conviction u nder the

CCE statute. We will affirm his convictions on all other

counts.

I.

A. Facts

Russell and four others were charged with conductin g a continuing criminal enterprise (Count I), conspirac y to distribute controlled substances (Count II), and mo ney laundering (Count III). The indictment also sought the forfeiture of property and assets obtained with pro ceeds of drug sales, pursuant to 21 U.S.C. S 853(p). App. at 53. Three of Russell's co-defendants, Mark Smith, Richa rd

2Francis Robinson and Arthur Lester Raymond, pleaded

guilty to the conspiracy charge and testified again st Russell

at trial.

Russell's trial commenced in June 1995 and lasted approximately six weeks. The testimony outlined a c omplex and lucrative scheme, organized by Russell, to dist ribute drugs in Pennsylvania, initially in Philadelphia an d 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 N ew 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 netw ork in Williamsport, Russell also supplied cocaine to othe r distributors operating networks there. Specifically , Russell developed a business relationship with one David Wi lliams. Russell would supply Williams with cocaine, which W illiams would then sell from a location known as the "pink house." Over time, Williams permitted Russell to sell cocai ne directly out of the "pink house." Russell's co-cons pirators were not permitted to sell drugs out of this locati on.

B. Weapons Use

Testimony at trial also revealed that between 1990 and 1994, Russell had his girlfriend, Melita Garcia, pu rchase a number of guns for him. Garcia testified that she purchased the weapons with cash given to her by Rus sell. Although there was no testimony relating to Russell 's specific use of the guns during particular drug transactions, the government introduced evidence, o ver 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 t hey 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 packa ging material. Russell pleaded guilty to the gun charge and was

released for time served.

Another witness, Andre Grimes, testified that in an other incident relating to the drug operation, Russell us ed a knife

3to assault George Felder. Grimes testified that in October

1994, he and Russell assaulted Felder because Felde r had allegedly stolen approximately $400 to $500 in drug proceeds belonging to Russell. App. at 383-85. Grim es explained that when he and Russell approached Felde r 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 t he basis of this testimony, the court assessed a two-level incr ease to Russell's base offense level for possessing a dange rous weapon during the course of the offense, pursuant t o S 2D1.1(b)(1) of the Sentencing Guidelines.

C. Sentence

To compute Russell's offense level under the Senten cing Guidelines, the district court held a hearing conce rning the quantity of drugs attributable to him. Ultimately, the court concluded that the quantity of drugs for which Russ ell was responsible could not be discerned from the trial t estimony, and that "[t]he best estimate available to the cour t of a drug quantity for which Russell is responsible is found in the stipulations regarding drug quantity to which Russe ll's coconspirators entered after pleading guilty to consp iring with Russell." App. at 137. Because Russell's co-conspir ators stipulated that they were responsible for quantitie s not exceeding 20 kilograms of powder cocaine and 250 gr ams of cocaine base, the court determined that Russell was responsible for the same amount. Thus, the court as sessed 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 histo ry category of II, his resulting imprisonment range un der the Sentencing Guidelines was 360 months to life.

Russell appeals the conviction and sentence entered by the district court. The district court had jurisdic tion under 18 U.S.C. S 3231, and we have jurisdiction under 18 U.S.C.

S 1291.

4II.

A. The CCE Statute & Specific Unanimity

The CCE statute under which Russell was convicted requires that the government prove the following el ements: (1) that the defendant committed a drug-related fel ony under U.S.C. Title 21, Chapter 13, subchapter I or II; (2) that this violation was part of a "continuing serie s of violations" of the subchapter; (3) that the defenda nt acted as an organizer, supervisor or manager of five or m ore other persons in committing this series of violations; an d (4) that

the defendant obtained "substantial income or resou rces"

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 seri es of violations." Id. With respect to this issue, the tr ial judge instructed the jury as follows:

The phrase, a continuing series of violation s means three or more violations of the federal narc otics laws which are in some way -- laws which are in s ome way related to each other. In order to find that this element has been established, you must unanimously a gree that the Defendant, Mr. Russell, participate d in at least

three or more violations of the federal narc otics laws which are in some way related to each other

App. at 2094. Russell claims that the district cour t's instruction failed to advise the jury of the requir ement that they unanimously agree as to the identity of the th ree related drug offenses constituting the criminal ent erprise. Appellant's Br. at 27. At trial the government intr oduced substantial evidence of Russell's drug-related acti vity. But Russell claims that the general unanimity instructi on permitted the jury to convict him so long as each j uror was convinced that he had committed a series comprised of any three related drug violations, regardless of whethe r they unanimously agreed as to the identity of each under lying violation. See, e.g., United States v. Edmonds, 80 F.3d 810, 814 (3d Cir. 1996) ("For example, six jurors may ha ve felt that violations A, B, and C (but no others) were re lated, and the other six jurors may have concluded that violat ions D, E, and F (but no others) were related.").

5While it is true that in most cases a general unani mity

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 comple xity of the case, or other factors, creates the potential t hat the jury will be confused." Id.; cf. United States v. Ryan, 828 F.2d 1010, 1020 (3d Cir.), rev'd on other grounds, Unite d States v. Wells, 117 S. Ct. 921 (1997) ("[I]n any case whe re a count will be submitted to the jury on alternative theories, prudence counsels the trial court to give an augmen ted unanimity instruction if the defendant requests suc h a charge. Unanimity is an indispensable element of a federal jury trial.") (internal citation omitted). The purp ose of a specific unanimity instruction is to ensure that th e jurors are "in substantial agreement as to just what a def endant did as a step preliminary to determining whether th e defendant is guilty of the crime charged." Beros, 8 33 F.2d at 460 (quoting United States v. Gipson, 553 F.2d 4 53, 457- 58 (5th Cir. 1977)).

In Edmonds, we had to decide whether jury instructi ons relating to a charge under the CCE statute must dir ect the jury to agree unanimously on which of the alleged violations constitute the continuing series require d by the statute. We held that a general unanimity instructi on was insufficient to support a conviction under the CCE statute, concluding that the statute "requires unanimous agr eement as to the identity of each of the three related off enses comprising the continuing series."1 Edmonds, 80 F. 3d at 822 (emphasis added). Our decision in Edmonds was r ooted in the principle that a federal defendant in a crim inal trial has a constitutional right to a unanimous jury verd ict. 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."); s ee also,

___________________________________________________ ______________

1. In United States v. Echeverri, 854 F.2d 638 (3d Cir. 1988), we held that a jury considering a CCE charge must unanimous ly agree on which three acts constitute the continuing series of viol ations. In Edmonds, sitting en banc, we explicitly recognized "the oppo rtunity to reconsider

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

812.

6Andres 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 unani mity in

federal criminal cases on each delineated offense t hat it finds a defendant culpable, it must also require un animity regarding the specific act or acts which constitute s that offense.") (internal citation omitted).

The jury instruction at issue in this case is constitutionally deficient in the same manner as wa s the instruction in Edmonds. In Edmonds, the trial court instructed the jury as follows:

The government has to prove [ ] that such vi olation was part of a continuing series of related viola tions of the federal narcotics laws. A continuing series of violations requires proof beyond a reasonable doubt tha t three or

more violations of the laws occurred and tha t they, those three or more, were related to each ot her.

80 F.3d at 813. Although Russell's jury was instruc ted that they must "unanimously agree" that he "participated in at

least three or more violations of the federal narco tics laws," App. at 2094, this charge still amounted to a gener al, not a specific, unanimity instruction. The jury should have been instructed that unanimous agreement was requir ed not only to find the existence of a continuing seri es, but in determining the composition of that series. Our hol ding in Edmonds was clear: "[t]he CCE statute requires unan imous agreement as to the identity of each of the three r elated 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 t o be in substantial agreement as to just what a defendant d id as a step preliminary to determining whether the defenda nt is guilty of the crime charged.")

To be sure, the government introduced compelling evidence that Russell had, in fact, engaged in a la rge 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 continu ing

series of violations under the CCE statute. But the

7instruction given by the district judge permitted t he jurors

to convict on the CCE count even if different juror s determined that Russell had committed different act s. Although the jurors may, in fact, have unanimously agreed on a particular set of predicate acts, we cannot sp eculate as to the content of the jury's deliberations. See Uni ted 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 agre ed that a continuing series of violations had occurred, yet disagreed as to the identity of the three related offenses co mprising the series, we conclude that the district court's f ailure 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 nevert heless

determine whether it constituted reversible error. The government argues, and the dissent agrees, that Rus sell failed to preserve this issue, and thus the standar d of review is plain error. For the following reasons, w e believe that the issue was properly preserved, and therefor e 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 appropr iate to prescribe specific language to be used when charging a jury w ith respect to the continuing series element of a CCE count. Just how the goal of ensuring unanimous agreement is better left to the insight a nd experience of district court judges on a case by case basis. We m erely reaffirm our holding in Edmonds that the jury be instructed to r each unanimous agreement on the identity of the offenses constitut ing the continuing

series.

8No party may assign as error any portion of the charge

or omission therefrom unless that party obje cts thereto before the jury retires to consider its verd ict, stating distinctly the matter to which the party obj ects and the grounds of the objection.

The purpose of this provision is to allow the distr ict court an opportunity to correct potential problems in jur y instructions before the jury begins its deliberatio ns. See United States v. Logan, 717 F.2d 84, 91 (3d Cir. 19 83) ("Rule 30 has the manifest purpose of avoiding when ever possible the necessity of a time-consuming new tria l by providing the trial judge with an opportunity to co rrect any mistakes in the charge before the jury begins to deliberate.") (internal citation omitted).

The trial record in this case discloses the followi ng sequence of events with respect to the charge. Firs t, the judge gave a CCE charge which did not require speci fic 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 ex ceptions to the charge," and dismissed the jury for lunch. A pp. at 2141. During the ensuing conference, the prosecutor and defense counsel engaged in a discussion concerning the applicability of the Edmonds case. Russell's counse l 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 th en stated that it would consider the issue during the lunch break, App. at 2145, but the issue was not revisite d.

Although Russell's counsel did not explicitly state that he was objecting to the CCE instruction,3 the colloqu y between the court and counsel regarding the Edmonds case, a nd 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 neede d to be made. I was attempting to point out that my interpretati on of[Edmonds] seems to suggest that there is a need for a specia l verdict page that requires the jury to fill in three blank lin es of which three

federal felony offenses that have unanimously agreed upon having been committed by the defendant.

9context in which this conversation took place (an o n-therecord conference to discuss objections and excepti ons to the charge), lead us to conclude that the trial jud ge had sufficient notice of a possible error in the CCE ju ry instruction. As we noted earlier, the crux of Rule 30 is that the district court be given notice of potential err ors in the jury instructions, not that a party be "required to adhere to any formalities of language and style to preserve h is objection on the record." United States v. O'Neill, 116 F.3d 245, 247 (7th Cir. 1997) (internal citations omitte d).4

Russell's trial counsel alerted the court to his be lief that the charge as given did not comply with our decision in Edmonds, and the judge's statement that he would re view the issue suggests that the court understood this a s an objection (or at the very least, a point of disagre ement 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 3 0 and its requirements. Interpretations of Rule 51 of the Fed eral Rules of Civil Procedure, the civil analog to Rule 30, indicate th at formal objections

are not required. See, e.g., Larry V. Muko, Inc. v. Sou thwestern 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 ret ired 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 lon g as it is clear that

the trial judge understood the party's position . . . T he 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) (in ternal citation omitted). The dissent relies heavily upon Rule 30's admonition that a party state "distinctly the matter to which th[e] p arty objects and the grounds of the objection." This language is virtual ly identical to that in Rule 51 which states that a party must "state disti nctly 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 crim inal defendants with the same flexible, common-sense interpreation we af ford litigants in the

civil context.

10Certainly, 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 t he substance of a colloquy between the judge and defen se counsel was insufficient to have put the trial judg e on notice that an objection was based on Rule 404(b) o f the Federal Rules of Evidence, because defense counsel simply repeated three times that the information was "irre levant." 803 F.2d at 126. Here, however, the trial court was put on

notice that Russell believed that the instruction w as incorrect because it lacked the requisite specifici ty, 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 addi tional basis for concluding that a proper objection was ma de. The judge convened this on-the-record meeting specifica lly to "find out any objections or exceptions to the charg e." App. at 2141. This is, of course, a common practice in b oth

___________________________________________________ ______________

5. We do not share the dissent's concern that durin g the colloquy, Russell's counsel argued that Edmonds required a sp ecial 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 o bscuring the distinction between an objection to a jury instruct ion and a request for a special verdict sheet, but we have done no such t hing. To be clear, the only relevance we have placed on the defendant's re quest for a special verdict sheet is that it put the judge on notice th at 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 c ourt 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 object ions to the erroneous portion of the instructions.") Specifically, defens e counsel called the judge's attention to the relevant language in Edmon ds, 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 ev er made.

11criminal and civil trials and serves as an invitati on to

counsel to suggest corrections or amendments to the charge, or to state or reiterate objections. Defens e counsel took this opportunity to engage the court and prose cutor in an extended debate about whether or not the jury

instruction at issue was consistent with Edmonds. W e believe the court must have understood that Russell 's counsel was stating an objection to the charge as g iven; thus, this issue was properly preserved for our rev iew.6

2. Proposed Alternative Instruction

In addition to posing his objection, Russell's coun sel proposed an alternative jury instruction, one which required specific unanimity as to the series of off enses under the CCE count. In our view, this constitutes an additional ground for applying a harmless error sta ndard in

this case.7

The failure to give the defendant's proposed jury instruction formed the primary basis for our decisi on in Edmonds. While our holding was certainly premised u pon our discussion as to whether the court's charge was sufficient to assure jury unanimity, our primary fo cus was

___________________________________________________ ______________

6. The dissent also urges that because Russell's co unsel objected to instructions 51 and 43 (neither of which had anythi ng to do with Edmonds), but failed to object to the general unani mity instruction at the same time, the issue was not preserved. However , as we have noted, Russell's counsel believed that a special verdict f orm was required by Edmonds. This belief, while incorrect, was not unre asonable. At the time Russell's counsel specifically objected to jury ins tructions 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 no t required, from the perspective of Russell's counsel a general unanimit y instruction coupled with a special verdict form would have assured spec ific unanimity. Therefore, defense counsel had no reason to object to the unanimity instruction until the judge had ruled on his reques t 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 D rug Law violations." Appellee's Supplemental Appendix at 25.

12whether "the court's failure to give [the defendant 's]

proposed specific unanimity instruction" constitute d error. Edmonds, 80 F.3d at 823.

Although it is unclear that proposing an alternativ e jury instruction is itself sufficient to preserve the is sue for appeal, at least two of our cases have indicated th at the plain error standard will be applied when there has been no specific objection to the charge as given and no al ternative jury instruction has been submitted. See, e.g., Ber os, 833 F.2d at 458 ("review under the more deferential`pla in error' standard is appropriate in cases where no objection to jury instructions is made, or where no alternative jury instructions are proposed") (internal citations omi tted); 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 c harge). 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 c ourt's instructions as given" appellate court will review for plain error.); United States v. Donathan, 65 F.3d 537, 54 0 (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 insu fficient to preserve the issue. See United States v. Tannenbaum , 934 F.2d 8, 14 (2d Cir. 1991) ("[R]equested instruction s 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 distr ict judge and trial counsel was tantamount to an object ion 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, un der the facts of this case, where defense counsel not only proposed an alternative jury instruction but engaged the cou rt and

13prosecutor in a colloquy regarding an alleged error in the

charge, the issue was sufficiently preserved to inv oke a harmless error analysis.

3. Plain Error Analysis

We have concluded that the appropriate standard of review in this case is harmless error. The governme nt took the position at oral argument that the appropriate standard is plain error. The dissent agrees. Ultimately, how ever, we believe the jury charge constituted reversible erro r even under the more deferential plain error standard.

For there to be plain error, there must be an "erro r" that is "plain" and that "affects substantial rights." U nited States v. Retos, 25 F.3d 1220, 1228 (3d Cir. 1994) (quotin g 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 t he court erred when it "deviated from the legal rule" that j urors must be instructed as to the requirement of specific una nimity to find a continuing series under the CCE statute. Furthermore, the error was plain in that it was "cl ear" and "obvious" from even a cursory reading of our decisi on in Edmonds that a finding of specific unanimity was re quired to sustain a CCE conviction. Edmonds, 80 F.3d at 82 2; see also United States v. Stansfield, 101 F.3d 909, 920 (3d Cir. 1996) (omission of essential element of offense fro m jury instructions "usually will be obvious error," there fore satisfying the requirements that there be "error" a nd that the error be "plain").

Having determined that the error was plain, we must now examine whether the error "affected substantial rig hts," thus constituting reversible error under plain erro r review. See Retos, 25 F.3d at 1228. We have no hesitation i n concluding that the error did affect a substantial right of Mr. Russell -- his constitutional right to a unanim ous jury verdict on each element of the CCE charge. The Supr eme Court has held that due process requires "proof bey ond a reasonable doubt of every fact necessary to constit ute the crime with which [the defendant] is charged." Unite d States v. Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993) (quotin g In re Winship, 397 U.S. 358, 364 (1970)). See Government of

14Virgin Islands v. Brown, 685 F.2d 834 (3d Cir. 1982 ) ("The

omission of an essential element of an offense in t he charge to the jury ordinarily constitutes plain error.") A t least one other circuit has found plain error under circumsta nces similar to those presented here. See United States v. Payseno, 782 F.2d 832, 836-37 (9th Cir. 1986) (afte r trial court gave a general unanimity instruction, the rev iewing court found that there was a genuine possibility th at the jurors were not unanimous as to which of the charge d offenses supported the verdict, and held that the f ailure to give a specific unanimity instruction therefore con stituted plain error).

C. Harmless Error Analysis

Under a harmless error review, if we find a constit utional error, we may affirm the district court "only if th e error is harmless beyond a reasonable doubt." United States v. Molina-Guevara, 96 F.3d 698, 703 (3d Cir. 1996) (ci ting Chapman v. California, 386 U.S. 18, 24 (1967)). Und er the facts of this case, we cannot conclude that the err or 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 conti nuing 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 conclud e that Russell was deprived of his Sixth Amendment right t o a unanimous jury verdict. See, e.g., Beros, 833 F.2d at 463 ("Because there is a significant possibility that t his error may have resulted in a non-unanimous verdict in vio lation of the Sixth Amendment, the district court's instru ctions were not harmless beyond a reasonable doubt."). Des pite the enormous volume of evidence introduced against Russell, "we cannot affirm a non-unanimous verdict simply because the evidence is so overwhelming that the ju ry surely would have been unanimous had it been proper ly instructed on unanimity." Edmonds, 80 F.3d at 824.

In Edmonds we ultimately determined that the failur e of the court to provide a specific unanimity instructi on was

15harmless error. But the facts which formed the basi s for

that conclusion are not present in this case. In Ed monds, the defendant was convicted of every violation alle ged to constitute the continuing series for the CCE charge

. Edmonds, 80 F.3d at 812-13. We did not have to spec ulate whether the jurors reached agreement as to the iden tity 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 v iolations constituting the series.

Russell, on the other hand, was not charged separat ely with all of the underlying offenses which, accordin g to the government, constituted the continuing series for t he CCE count.8 Although he was convicted of conspiracy to distribute controlled substances, and the governmen t has urged that this is the "functional equivalent" of a finding of unanimity on the continuing criminal enterprise cha rge, Appellee's Br. at 34-35, we cannot agree. The jury returned a unanimous verdict on the conspiracy charge, but w e can only conclude from this that the jury agreed that R ussell was guilty of that one predicate offense.

The CCE statute requires that the defendant partici pate in a "continuing series" of violations of the feder al drug

laws. 21 U.S.C. S 848. We have held that a"continui ng series" consists of three or more separate violatio ns. Echeverri, 854 F.2d at 643. A jury finding that the defendant was guilty of a single predicate act cann ot be the "functional equivalent" of a jury finding that the defendant participated in a continuing series of three violat ions. 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 count s, only the count of conspiracy to distribute controlled substances unde r 21 U.S.C. S 846 could qualify as a CCE predicate act, because the C CE statute expressly requires that the violations constituting the conti nuing series be of U.S.C. Title 21, Chapter 13, subchapter I or II. 21 U.S.C. S 848.

16D. Conclusion

In summary, we hold that the jury instruction at is sue 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 continu ing series required for a CCE conviction. Furthermore, the fai lure to give a proper unanimity instruction constitutes rev ersible error under either a harmless error or plain error standard of review. Accordingly, we will reverse the defenda nt'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 discus s 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 v ariance with the single conspiracy alleged in the indictmen t. Specifically, Russell maintains that evidence relat ing to his activity at the "pink house" and drug activity in Philadelphia illustrate the existence of two other conspiracies separate from the Williamsport conspir acy charged in the indictment. Russell argues that he h as been prejudiced because this evidence permitted the jury "to consider offenses unrelated to the Williamsport con spiracy when determining [his] guilt on the conspiracy coun t." See Appellant's Br. at 30-38. We disagree. Russell has not been prejudiced because the evidence offered by the gove rnment supports the finding of a single conspiracy encompa ssing the drug activities in Williamsport, Philadelphia a nd the "pink house."

To determine whether a series of events constitutes a single conspiracy or separate, unrelated conspiraci es, a three-step inquiry is required: (1) determining whe ther 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 conti nuous result which could not be sustained without the con tinued

17cooperation of the conspirators; and (3) examining the

extent to which the participants overlapped in vari ous 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 Kell y factors, it seems obvious that virtually all activi ties the coconspirators engaged in to make money selling cocai ne could be encompassed within this single conspiracy. A conspiracy charge often casts a wide net, and drug

distribution activities conducted in different loca tions can certainly be encompassed within a single conspiracy . Nor are we concerned that only Russell, not his co-cons pirators, 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 jur y's verdict on the conspiracy count.

B. Admission of Evidence Relating to Maple Shade Arrest and Handgun Purchases

Russell challenges the admission of evidence relati ng to his arrest in 1991 in Maple Shade, New Jersey. He a lso challenges the evidence introduced pertaining to se veral handgun purchases made on his behalf by Melita Garc ia, his girlfriend. Russell maintains that the events surrounding the arrest were not relevant to the iss ues to be decided by the jury because they occurred in April 1991, one year prior to the beginning of the conspiracy a lleged in the indictment. He challenges the evidence of handg un purchases on the basis that: (1) there was no evide nce presented that he actually possessed the guns; and (2) three purchases occurred prior to the April 199 2 date cited in the indictment as the beginning of the con spiracy.

The events relating to the Maple Shade arrest were relevant at trial to show a common scheme or plan i n relation to the conspiracy alleged in the indictmen t. The

evidence at trial established that Russell and Smit h were arrested in Maple Shade on their way from New York where they had purchased cocaine from one of Russell's so urces. App. at 1272. This same source was later used by Ru ssell to purchase drugs for his Williamsport operation. F rom these events, a jury could reasonably infer a commo n

18scheme or plan similar to that operated by Russell in

Williamsport and in which Smith participated. The e vidence was probative to establish an association between S mith and Russell, to establish how the drug operation fu nctioned (i.e., drugs supplied from New York), and to establ ish a common purpose. See, e.g., United States v. Montoya -Ortiz, 7 F.3d 1171, 1177-78 (5th Cir. 1993) (jury could co nsider 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 opera tion admissible to establish "knowledge, intent, and the presence of a common scheme or plan.").

Russell's challenge to the admission of evidence re lating to his gun purchases is equally unpersuasive. Russe ll

contends that the evidence was not relevant because there was no evidence presented relating to his use or po ssession of the guns. In our view, the jurors could have rea sonably concluded that he possessed the guns which were, af ter all, purchased for him. Furthermore, it has long been recognized that firearms are relevant evidence in t he 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, 75 9 F.2d 1099, 1109 (3d Cir. 1985) (gun possession probative as to scale of conspiracy and type of protection conspira tors believed was necessary to protect their operation). Finally, Russell contends that because three of the gun purc hases 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 ha ve concluded that gun purchases completed prior to the beginning of the drug conspiracy were made with the anticipation that he would need "protection" to est ablish his drug operation.

For the foregoing reasons, we conclude that the dis trict court's admission of evidence regarding the defenda nt's Maple Shade arrest and gun purchases was not an abu se of discretion.

19C. 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 Guideli nes. The

facts which formed the basis for this increase were Russell's possession of the knife used to assault G eorge 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 t his is not the type of possession contemplated by the Sentenci ng Guidelines to warrant a two-level increase. We find this argument unpersuasive.

The Sentencing Guidelines provide that the two-leve l adjustment should be applied "if the weapon was pre sent, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. S 2D1.1, comm ent. (n.3). The testimony relating to the knife assault unequivocally established that the confrontation be tween Russell and Felder involved a dispute about proceed s generated from drug activity. Under such circumstan ces, we cannot conclude that it was "improbable" that th e 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 dete rmine whether an adjustment would have been appropriate u nder a gun possession theory.

D. Use of Stipulations To Establish Drug Quantity

To sentence a defendant on a drug-related charge, t he district court must determine the quantity of drugs for which the defendant was responsible. After reviewin g the record from Russell's trial, however, the district court concluded that the quantity of drugs for which Russ ell was responsible could not be discerned from the trial t estimony. In order to ascertain a quantity that could be attr ibuted to Russell's drug conspiracy and continuing criminal enterprise, the court relied on stipulations agreed to between the government and Russell's co-conspirator s, stating that they "form[ed] a highly reliable basis for an estimate of the drugs attributable to Russell." App . at 134.

20The district court sentenced Russell based on the s ame

quantity of drugs his co-conspirators stipulated to , 20 kilograms of powder cocaine and 250 grams of cocain e base. Russell objects to the district court's metho d, urging

that it is an unreliable measure of the amount of d rugs for

which he was accountable.

We are unpersuaded by Russell's argument. First, Russell was the organizer of the conspiracy. We bel ieve 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 op eration 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 co nviction and vacate his sentence on the CCE count, and reman d for further proceedings consistent with this opinion.

21ALITO, Circuit Judge, concurring and dissenting:

I concur in the affirmance of the defendant's consp iracy conviction, but I respectfully dissent from the rev ersal 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 err or in the CCE jury instruction, viz., the omission of an inst ruction 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 th ree 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 Federa l Rules

of Criminal Procedure demands. I therefore believe that the question before us in this appeal is whether the ch allenged omission constituted "plain error" (Fed. R. Crim. P . 52(b)), and I do not think that the demanding test for "pla in error"

is met here.

1. Before discussing defense counsel's failure to o bject 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 ord er to be convicted under 21 U.S.C. S 848 for conducting a continuing criminal enterprise, a defendant must ha ve committed a felony violation of the federal drug la ws, and this violation must be "a part of a continuing seri es" 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 o n the three violations that are used to support a CCE con viction and that a trial judge must, on request, give a jur y instruction specifically setting out this unanimity

instruction. Id. at 642-43.

In Edmonds, a later CCE prosecution, the district c ourt 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 hav e been "inclined to follow the reasoning of the Seven th Circuit in United States v. Canino, 949 F.2d 928, 947-948 ( 7th Cir.

221991), 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., concurr ing). Similarly, Judge Garth, in concurrence, stated that he "shar[ed] Judge Hutchinson's concerns regarding the Echeverri doctrine." Slip op. at 28 (Garth, J., con curring in part and dissenting in part). He added that he perc eived "conceptual tension" between Echeverri and our cour t'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 p ersons that a CCE defendant organized, supervised, or mana ged. Slip op. at 28 (Garth, J., concurring in part and d issenting in part). Judge Garth suggested that this tension"c all[ed]

for further resolution." Id.

The panel opinion in Edmonds was filed on April 18, 1995, and Russell's trial commenced a few weeks lat er, on June 5, 1995. On June 29, 1995, during the course o f that trial, the government's petition for rehearing in b anc in Edmonds was granted and the panel opinion was vacat ed. Russell's jury was instructed on July 12, 1995 -- a fter Edmonds was listed for rehearing in banc and well b efore that case was reargued (October 25, 1995) and the i n 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 unanimou sly on the particular CCE predicates. The court further he ld that the district court's refusal to give a specific una nimity

instruction was erroneous but that the error was ha rmless. For the reasons set out in my concurring opinion an d Judge Garth's concurring opinion in Edmonds, I cont inue

to believe that the CCE statute does not contain an y 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 obj ected to the instruction on which the majority relies. Rule 30 of the Federal Rules of Criminal Procedure provides in per tinent part as follows:

23No party may assign as error any portion of the charge

or omission therefrom unless that party obje cts thereto before the jury retires to consider its verd ict, stating distinctly the matter to which that party ob jects and the grounds of the objection.

This is a vitally important rule. It promotes judic ial economy by eliminating unnecessary appeals and retr ials. More important, because appellate reversals and ret rials produce delay, and because delay often results in t he loss or impairment of evidence, Rule 30 serves to promot e accuracy in jury verdicts. As the majority points o ut, 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 the se 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 subsequentl y sent out a note requesting "a limited reading of the Jud ge's charge as to count one [the CCE count]." App. at 21 55.10 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 cour t once again read to the jury the portion of the charge th at the

___________________________________________________ ______________

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

government.

10. "App." refers to the appendix filed by the appe llant.

24defendant now challenges on appeal. The following t hen

occurred:

THE COURT: ...Do you have any objection to t hose 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 th at he had no objection to the jury instruction that is ch allenged in this appeal. Moreover, defense counsel never men tioned or referred even obliquely to Edmonds during the co lloquy devoted to objections to the instructions. Accordin gly, defense counsel did not, in my view, adequately con vey to the trial judge the simple message that was necessa ry 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 predicate s."

It is true that defense counsel did subsequently me ntion Edmonds, but he did so in connection with an entire ly different question, i.e., whether the district cour t should give the jury a special verdict sheet concerning th e 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 ther e were certain specific findings that were required under

Count One.

July 12, 1995 Tr. at 70. Defense counsel then refer red to the panel decision in Edmonds (which, as previously noted, had been filed on April 18, 1995, but vacated on Ju ne 29, 1995, when rehearing in banc was granted). Defense counsel stated: "[T]he impression I had was that yo u had to give [the jurors] a special verdict page where they said, these are the three violations ..." App. at 2143. T he court

asked:

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

25Id. 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 attempt ing to point out that my interpretation of [Edmonds ] seems to suggest that there is a need for a special v erdict page that requires the jury to fill in three blan k lines of which three federal felony offenses they hav e unanimously agreed upon having been committe d 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 observ ed that he thought that "there's a general reluctance on the Court of Appeals to require any special verdict for ms in criminal cases." App. at 2144. Later, the court dec ided not to give the jury a special verdict sheet, and the d efendant does not challenge that decision on appeal.

I disagree with the majority's conclusion that defe nse counsel, by requesting a special verdict sheet, ade quately 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 instr uctions, and when defense counsel finally mentioned Edmonds and the trial judge pointedly asked, "Well, what are yo u 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 r equired 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 t he Edmonds panel and in banc decisions held that it is error to decline to give a special jury unanimity instruc tion when one is requested, neither the Edmonds panel opinion nor the Edmonds in banc opinion requires a special verd ict sheet. On the contrary, we have held that, as a gen eral matter, a district court "has discretion in determi ning whether to submit special interrogatories to the ju ry regarding the elements of an offense." United State s v. Console, 13 F.3d 641, 663 & n.23 (3d Cir. 1993). By

26obscuring the important distinction between an obje ction to

a jury instruction and a request for a special verd ict sheet, the majority, I believe, has committed a serious er ror.

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, wh ich 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 c ounsel had objected to the court's charge on the ground th at it failed to cover this point, and if the district cou rt had nevertheless declined to cover that point, then thi s case would be indistinguishable from Edmonds, and I woul d join the majority in voting to reverse. However, that is not what occurred. After the district court completed its ju ry instructions and asked defense counsel whether he h ad any objections, defense counsel referred to the 93 pages of proposed instructions that he had submitted and ask ed whether he could assume that any instruction that h ad not been given should be "deemed denied." Supp. App. at 6. The court rejected this suggestion and instructed d efense counsel to assert any objections he had to the inst ructions that the court had given. Id. Then, as previously n oted, 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 i t seems to me that, simply by including that instruction in the large packet of requested defense instructions, the defen se did not fulfil its obligation under Rule 30 to assert a n objection to the court's instructions and state "distinctly t he matter to which th[e] party objects and the grounds of the objection."

For these reasons, I would hold that defense counse l did not adequately object at trial to the jury instruct ion that is now challenged on appeal. Consequently, I believe t hat our review is limited to determining whether the distri ct 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 stat ute, 21

27U.S.C. S 848, a jury must unanimously agree that th e same

three related predicate offenses occurred. The cour t further

held that the district court in that case erred in rejecting a defense request for an instruction specifically adv ising 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 Ed monds. The instruction did not advise, contrary to Edmonds , that it was unnecessary for the jurors to agree unanimou sly regarding the three CCE predicate offenses that occ urred. In the challenged instruction, the district court s tated:

The phrase, a continuing series of violation s means three or more violations of the federal narc otics laws which are in some way -- laws which are in s ome way related to each other. In order to find that this element has been established, you must unanimously a gree that the Defendant, Mr. Russell, participated in some way in

at least three or more violations of the fed eral narcotics laws which are in some way related to each o ther.

App. at 2094. See also App. at 2158-59. As far as i t went, this instruction was entirely accurate: in order fo r the jury to find that Russell violated 21 U.S.C. S 848, it w as necessary that they "unanimously agree that . . . M r. 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 probl em with

this instruction is not that it was inaccurate but that it was incomplete: it did not go on and explain to the jur ors that they were required, not only to agree unanimously t hat Russell committed three CCE predicates, but to agre e unanimously with respect to the three particular pr edicates

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 (19 93), 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

28these 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. U nited 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 requirem ents (there was an error) was met. But I do not believe that the second requirement (the error was "plain") was sati sfied,

and therefore I need not consider the third or four th requirement.

" `Plain' is synonymous with `clear' or, equivalent ly, `obvious.' " United States v. Olano, 507 U.S. at 73 4. As we have explained:

To find plain error, the mistake must be suf ficiently obvious that "the trial judge and prosecutor were derelict in countenancing it, even absent th e defendant's timely assistance in detecting i t."

Government of Virgin Islands v. Knight, 989 F.2d 61 9, 632 (1993) (quoting United States v. Frady, 456 U.S. 15 2, 163 (1982)). In my view, the omission in this case was not "sufficiently obvious that `the trial judge and pro secutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it.' " K night, 983 F.2d at 632 (quoting Frady, 456 U.S. at 163). The o mission was simply a mistake, the sort of mistake that woul d have

constituted reversible error had defense counsel ca lled it to the trial judge's attention as required by Rule 30, but a mistake that falls short of constituting "plain err or." "The Supreme Court has admonished courts of appeals to characterize a mistake as plain error `sparingly, s olely in those circumstances in which a miscarriage of justi ce would otherwise result.' " Knight, 989 F.2d at 631 (quoting United States v. Young, 470 U.S. 1, 15 (1985). "Rev iewing courts are not to use the plain-error doctrine to c onsider trial court errors not meriting appellate review ab sent 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.

29A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

30