1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-18-1995

United States v Edmonds

Precedential or Non-Precedential:

Docket 93-1890

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Recommended Citation

"United States v Edmonds" (1995). 1995 Decisions. Paper 103.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 N0S. 93-1890, 93-1914, 93-1920, 93-1947 

 

 UNITED STATES OF AMERICA 

v. 

 THEODORE EDMONDS, 

 Appellant in No. 93-1890 

 

 UNITED STATES OF AMERICA 

v. 

 LORENZO DUNCAN, a/k/a TARIQ 

 Lorenzo Duncan, 

 Appellant in No. 93-1914 

 

 UNITED STATES OF AMERICA 

v. 

 CARLTON LOVE, 

 Appellant in No. 93-1920 

 

 UNITED STATES OF AMERICA 

v. 

 CORA LOVE, 

 Appellant in No. 93-1947 

 

 On Appeal From the United States District Court 

 For the Eastern District of Pennsylvania 

 (D.C. Crim. Action Nos. 92-cr-00504-1, 92-cr-00504-6, 

 92-cr-00504-5, 92-cr-00504-16) 

 

 Argued October 24, 1994 
 BEFORE: STAPLETON, HUTCHINSON and GARTH, Circuit Judges

 (Opinion Filed April 18, l995 ) 

 

 

Michael R. Stiles 

U.S. Attorney 

Walter S. Batty, Jr. 

Assistant U.S. Attorney 

Valli F. Baldassano 

Assistant U.S. Attorney 

Jeffery W. Whitt (Argued) 

Assistant U.S. Attorney 

James Swain 

Assistant U.S. Attorney 

615 Chestnut Street 

Suite 1250 

Philadelphia, PA 19106 

 Attorneys for Appellee 

Dominick J. Sorise (Argued) 

33830 Harper 

Clinton Township, MI 48035 

 Attorney for Theodore Edmonds 

 Appellant in No. 93-1890 

Thomas Colas Carroll (Argued) 

Carroll & Cedrone 

Suite 750 The Curtis Center 

Independence Square West 

Philadelphia, PA 19106 

 Attorney for Lorenzo Duncan 

 Appellant in No. 93-1914 

Anthony T. Chambers (Argued) 

3650 Penobscot Building 

Detroit, MI 48226 

 Attorney for Carlton Love 

 Appellant in No. 93-1920 
John Royal (Argued) 

One Kennedy Square, Suite 1930 

Detroit, MI 48226 

 and 

Cornelius Pitts 

3650 Penobscot Building 

Detroit, MI 48226 

 Attorneys for Cora Love 

 Appellant in No. 93-1947 

 

 OPINION OF THE COURT

 

STAPLETON, Circuit Judge: 

 Theodore Edmonds, Lorenzo Duncan, Carlton Love, and 

Cora Love appeal from their convictions and sentencings after a 

jury trial on various drug-related charges. The jury found all 

four appellants guilty of distributing cocaine and heroin, in 

violation of 21 U.S.C. § 841(a)(1), and of conspiracy to 

distribute cocaine and heroin, in violation 21 U.S.C. § 846. 

Three defendants, Edmonds, Duncan, and Carlton Love, were found 

guilty of knowingly and intentionally using a communication 

facility in committing, causing, and facilitating the conspiracy 

to distribute cocaine and heroin, in violation of 21 U.S.C. 

§ 843(b). Edmonds also was convicted of money laundering under 

18 U.S.C. § 1956, and of managing, supervising, and organizing a 

continuing criminal enterprise ("CCE"), under 21 U.S.C. § 848. 

On top of those convictions, the jury returned a verdict of 
$27,000,000 for the government against Edmonds, $4,500,000 

against Carlton Love, and $4,000,000 against Duncan under the 

criminal forfeiture statute, 21 U.S.C. § 853. These appeals have 

been consolidated. 

 The appellants raise numerous issues, three of which 

present close and important questions warranting this opinion. 

The first concerns Edmonds' conviction on the charge of managing, 

supervising, and organizing a continuing criminal enterprise in 

violation of 21 U.S.C. § 848. Following our decision in United 

States v. Echeverri, 854 F.2d 638 (3d Cir. 1988), we hold that 

the trial court committed reversible error when it refused to 

instruct the jury that it had to unanimously agree which of 

Edmonds' alleged drug violations constituted "the continuing 

series of violations" required for conviction on that count. 

 The second issue concerns the sentences imposed on 

Carlton Love and Cora Love. Those two appellants argue that the 

drug quantities attributed to them for sentencing purposes were 

not justified by the evidence presented at trial. We agree. An 

appropriate drug-weight estimate will lower Carlton Love's U.S. 

Sentencing Guideline offense level; accordingly, we will remand 

his case for resentencing. It is unclear whether an appropriate 

drug-weight estimate would change Cora Love's offense level, so 

we will remand her case for further findings and, if necessary, a 

reconsideration of her sentence. 
 The final issue involves the district court's admission 

into evidence of certain drug paraphernalia seized during the 

execution of a search warrant. Carlton Love claims that the 

search warrant was issued on the basis of an affidavit containing 

information allegedly obtained in violation of his Fourth 

Amendment rights. We find no Fourth Amendment violation and 

accordingly cannot fault the challenged evidentiary ruling. 
I. 

 This case involves a large conspiracy to distribute 

cocaine and heroin through the Federal Express system. The 

conspirators, for over a year, would ship drugs from the Los 

Angeles area via Federal Express to points in the East Coast and 

Midwest. Various members of the conspiracy then would distribute 

the drugs, collect money in return, and ship the money received 

back to California, again using Federal Express. Headed by 

Edmonds, the conspiracy sold more than 1500 kilograms of cocaine 

and more than 2 kilograms of heroin to distributors in Chester, 

Pennsylvania; Philadelphia, Pennsylvania; Wilmington, Delaware; 

Wilmington, North Carolina; Detroit, Michigan; New Orleans, 

Louisiana; Toledo, Ohio; and elsewhere. 

 Edmonds arranged the drug shipments from the Los 

Angeles area with the help of codefendant Reinard Mozell and one 

or two others. Tyria H. Ekwensi managed the distribution 

operation for the East Coast and the Detroit area. During the 

early part of the conspiracy, Edmonds would send shipments to 

Ekwensi's address in Mount Laurel, New Jersey. Ekwensi passed 

the drugs on to Duncan, her sole distributor at that time, who 

then sold the drugs on consignment. As the conspiracy 

progressed, Ekwensi also began to distribute the drugs to Russell 

Freeman, Jr. and to Carlton Love. At one point, Edmonds started 

to send the shipments directly to addresses provided by both 

Duncan and Freeman, Jr., as well as Ekwensi. 
 During the early part of these operations, Ekwensi 

would secret monies received from selling the drugs on her person 

and personally deliver the money to Edmonds in California. 

Edmonds eventually changed that procedure and Ekwensi proceeded 

to send packages of money by Federal Express to various Edmondscontrolled Los Angeles-area addresses. Carlton Love, Duncan, and 

Freeman, Jr. assisted Ekwensi with preparing the money for 

shipment and delivering the boxes to Federal Express. 

 The scheme began to unravel when a Federal Express 

employee at the Philadelphia airport became suspicious of a 

package that had been presented for shipment to the Los Angeles 

area. He opened the package and discovered that it contained a 

large amount of currency. Shortly thereafter, the same Federal 

Express employee noticed a similar package. He alerted the 

Federal Express security department, which in turn alerted law 

enforcement authorities. The package was searched and found to 

contain approximately $200,000 in cash. 

 In the course of the next several months, the FBI 

checked Federal Express records and seized a number of Federal 

Express packages containing cash sent from the Philadelphia area 

to the Los Angeles area as well as a number packages containing 

drugs sent from the Los Angeles area to the Philadelphia area. 

On May 29, 1992, the government secured the first of a series of 

wire and electronic communications warrants on telephones 

subscribed to or used by subjects of the investigation. The 
wiretaps led to seizures and physical surveillance. This 

evidence, coupled with the ultimate cooperation of a number of 

the suspects of the investigation, led to the indictment of 

sixteen individuals, some from the Los Angeles area and others 

from the Philadelphia area. Ekwensi and Mozell testified for the 

government at trial. 

 The appellants were tried, convicted and sentenced in 

the U.S. District Court for the Eastern District of Pennsylvania. 

We have jurisdiction to hear these appeals under 28 U.S.C. 

§ 1291. 

II. 

 The jury found Edmonds guilty of managing, supervising, 

or organizing five or more persons in a continuing criminal 

enterprise, in violation of 21 U.S.C. § 848.1 Edmonds gives two 

 

1. Section 848(a)(1) makes it a crime to engage in a "continuing 

criminal enterprise." Section 848(b) provides that a person 

engages in a "continuing criminal enterprise if -- 

 (1) he violates any provision of this subchapter or 

subchapter II of this chapter the punishment for which is a 

felony, and 

 (2) such violation is a part of a continuing series of 

violations of this subchapter or subchapter II of this 

 chapter -- 

 (A) which are undertaken by such person 

in concert with five or more other persons 

with respect to whom such person occupies a 

position of organizer, a supervisory 

position, or any other position of 

management, and 
reasons why that conviction should be reversed. His first is 

that the government failed to meet the statute's "numerosity" 

requirement; that is, he contends that the government failed to 

prove that he managed, supervised, or organized five or more 

people in connection with the underlying drug felonies. Our 

examination of the record reveals that there in fact was 

sufficient evidence to support a finding that Edmonds managed, 

supervised, or organized five or more people in connection with 

the underlying drug felonies. 

 Edmonds' second reason for challenging his CCE 

conviction is more substantial. He contends that the trial court 

erroneously refused to instruct the jury that it had to 

unanimously agree which of the alleged violations constituted the 

"continuing series of violations" required for a conviction on 

the CCE charge. We agree that the trial court's refusal to give 

such an instruction requires a reversal of Edmonds' conviction on 

the CCE charge. 

A. 

 To obtain a conviction under the continuing criminal 

enterprise statute, 21 U.S.C. § 848, the government must prove 

that the defendant, through his or her supervisory role over a 

criminal enterprise of five or more others, is criminally 

(..continued) 

 (B) from which such person obtains 

substantial income or resources." 
responsible for a "continuing series" of felony violations of the 

federal narcotics laws. A "series" in this context is 

established by proof of three or more violations. See United 

States v. Echeverri, 854 F.2d 638, 642-43 (3d Cir. 1988). 

"Continuing," on the other hand, means that the three violations 

must somehow be related; it is well-established, for example, 

that clearly "isolated," and accordingly unrelated, violations of 

the federal drug laws will not support a CCE conviction. United 

States v. Jones, 801 F.2d 304, 307 (8th Cir. 1986) (noting that 

three separate, unrelated, drug sales would not establish a 

continuing series); see also United States v. Baker, 905 F.2d 

1100, 1104 (7th Cir.) (stating that "an unrelated conspiracy does 

not count [for CCE purposes] because it cannot be part of the 

'continuing' series"), cert. denied, 498 U.S. 876, and cert. 

denied, 498 U.S. 904 (1990), and cert. denied, 498 U.S. 1030 

(1991). Furthermore, the law is clear that the "continuing 

series" requirement is an element of the crime. See, e.g., 

United States v. Grayson, 795 F.2d 278, 283-84 (3d Cir. 1986) 

(stating that the government must prove that a felony violation 

of the narcotics law is "part of a continuing series of 

violations"), cert. denied, 479 U.S. 1054, and cert. denied, 481 

U.S. 1018 (1987). As a result, to convict, a jury must agree 

unanimously that the defendant committed a continuing series of 

three drug-related criminal offenses. See, e.g., In re Winship, 

397 U.S. 358, 364 (1970). 
 The district court in this case instructed the jury 

that "[a] continuing series of violations requires proof beyond a 

reasonable doubt that three or more violations occurred and that 

they, those three or more, were related to each other." Edmonds 

asked the district court to explain to the jury that it must 

unanimously agree which three of any narcotics violations they 

found to have occurred were related to each other for the 

purposes of the "continuing series" requirement. The district 

court declined to so instruct the jury, and Edmonds insists that 

this was reversible error. 

 The defendant in Echeverri also was charged with a CCE 

offense. He requested the following jury instruction: 

 The second element the government must prove 

beyond a reasonable doubt is that this 

offense was part of a continuing series of 

violations of the federal narcotics laws. A 

continuing series of violations is three or 

more violations of the federal narcotics laws 

committed over a definite period of time. 

 You must unanimously agree on which three 

acts constitute the continuing series of 

violations. 

Echeverri, 854 F.2d at 642. We held that it was reversible error 

for the district court to decline to give this or a similar 

instruction. We explained: 

 In the absence of a specific unanimity 

instruction directed to the government's 

several claims, it was apparent that the jury 

need not have unanimously agreed that any 

particular criminal act had been committed by 

the defendant. 

* * * * 

 
 Here, the jury was instructed that the 

continuing series element required them to 

find three violations of the drug laws . . ., 

yet as a result of the district court's 

refusal to give the requested instruction, 

there is no assurance that the jury 

unanimously agreed that the same narcotics 

violations occurred. 

Id. at 642-43. 

 There is a difference between the facts of this case 

and those presented in Echeverri. The jury convicted Edmonds of 

each of the eight substantive counts involving the drug felonies 

alleged to constitute the continuing series. As a matter of 

logic, therefore, the jurors must have unanimously agreed that 

Edmonds committed every felony in the alleged "series." Thus, 

the government maintains, the principles requiring a reversal in 

Echeverri do not require a reversal in this case. 

 This misunderstands Edmonds' argument. Edmonds does 

not dispute that the jury unanimously found he committed every 

one of the eight underlying narcotics violations. His argument 

instead is that the instruction given by the trial court did not 

require the jury to unanimously agree that the same three or more 

violations were "related" to each other for the purposes of the 

CCE statute. He thus contends that the mere fact that the jury 

returned a guilty verdict on the substantive counts involving the 

eight underlying offenses does not, by itself, establish that the 

jury found that the eight offenses, or any particular subset of 

three or more of the eight offenses, were related to each other. 
 It is possible, as Edmonds insists, that the jury, 

while finding that all eight violations occurred, did not 

actually agree on which violations were related to each other. 

For example, six jurors could have felt that violations A, B, and 

C (but no others) were related and the other six jurors could 

have concluded that D, E, and F (but no others) were related. 

Thus, as in Echeverri, it is possible that the jurors failed to 

unanimously agree that Edmonds was responsible for three related 

criminal acts and that the government therefore failed to meet 

its burden of proving a "continuing series" of violations. 

B. 

 The government maintains that United States v. Jackson, 

879 F.2d 85 (3d Cir. 1989), requires that we affirm Edmonds' CCE 

conviction. The defendant in Jackson, who was also charged with 

a CCE offense, claimed that the jurors had to decide unanimously 

on the identities of his five underlings before they could 

conclude that the government had met its burden of showing that 

he acted in a "supervisory role." We agreed with the defendant 

that whether there were five or more underlings was in fact an 

essential element of the offense and that the jury accordingly 

had to reach a consensus on that fact. Id. at 88. We 

nevertheless rejected the notion that the jury must unanimously 

agree on the identities of the five underlings. Id.
 The result in Jackson follows from the general rule 

that jurors need not be in "complete agreement as to the 

collateral or underlying facts which relate to the manner in 

which the culpable conduct was undertaken." Id. (emphasis 

added); see generally Schad v. Arizona, 501 U.S. 624, 631-37 

(1991) (noting that the Constitution does not require jurors to 

"agree upon a single means of commission"); Griffin v. United 

States, 502 U.S. 46, 49-57 (1991). The elements of the crime 

proscribed by § 848, as viewed by the court in Jackson, are that 

(1) the defendant committed three drug felonies, and (2) each of 

those felonies were (a) related to each other, (b) undertaken in 

concert with five or more people whom the defendant organized or 

managed, and (c) produced substantial income or resources for the 

defendant. Satisfaction of element (2)(b) requires proof that a 

group of a certain size be involved in the commission of the 

felony. The identities of the people making up the group of 

underlings for the purposes of the CCE statute merely relate to 

the manner in which the culpable conduct is undertaken, however. 

Put simply, the CCE statute does not care who the five people 

are, it only cares that the jurors agreed on the essential facts 

of "whether the requisite size and level of control existed." 

Jackson, 879 F.2d at 89; see also United States v. Bafia, 949 

F.2d 1465, 1471 (7th Cir. 1991) (holding that it is not necessary 

that the same five people be involved when each of the criminal 

acts constituting the series is committed). 
 Under traditional principles of our criminal 

jurisprudence, the legislature, within constitutional limits not 

here implicated, can define a crime as it chooses. Schad, 501 

U.S. at 632-37. Once the elements have been described, however, 

each must be proved to a unanimous jury beyond a reasonable 

doubt. Echeverri, 854 F.2d at 642-43. When a statute makes it a 

crime to engage in particular conduct on a single occasion and a 

jury unanimously agrees that a single event occurred involving 

conduct of the defendant and a state of mind that fit the 

statutory definition of the offense, we do not insist that the 

jury unanimously agree on the precise manner in which the offense 

was committed. The same analysis applies when the crime charged 

involves a series of events. When a jury unanimously agrees that 

a single set of events occurred involving actions of the 

defendant and a state of mind that fit the statutory definition 

of the offense, we do not insist that the jury unanimously agree 

on the manner in which the offense was committed. Thus, in 

Jackson, the jury unanimously agreed that a single set of events 

occurred and that individually and collectively those events fell 

within the statutory definition: the defendant participated in 

each event, each event was a violation of a controlled substance 

statute, each was related to two or more other such violations, 

each was engaged in by the defendant through an organization of 

the requisite size, and each produced substantial gain for the 

defendant. This was sufficient. It was not necessary that the 
jury unanimously agree as to the identities of the five 

underlings in each instance. 

 Here we have quite a different situation. We do not 

know that the jury unanimously agreed that Edmonds participated 

in a single set of events that met all of the elements of the 

statutory definition. Because no event can meet the statutory 

criteria unless the distribution involved was related to two or 

more other distributions, the district court's charge leaves us 

without the requisite assurance that no juror had a reasonable 

doubt concerning Edmonds' guilt of the CCE charge. A juror may 

have had a reasonable doubt about the "relatedness" of one or 

more of the events that his or her colleagues thought constituted 

a series of three related drug offenses. 

 Thus, Jackson is inapposite here. To apply Jackson in 

this context would be to disregard as irrelevant the portions of 

the CCE statute requiring that the underlying criminal acts be of 

a particular character, i.e., that they be related. That is 

precisely the result we rejected in Echeverri. The required 

underlying criminal acts, including their "relatedness," are 

"facts necessary to constitute the crime" -- not merely 

immaterial means -- and therefore must be proven individually. 

In re Winship, 397 U.S. 358, 364 (1970). Consistent with 

Jackson, the jury need not agree on how the three violation 

events were related, but they must agree that the defendant 

participated in three specific events and that those events were 
related. Not requiring unanimity on which three or more criminal 

acts are related leaves open the possibility that Edmonds could 

have been convicted without unanimous juror agreement that he 

engaged in a "continuing series" of criminal acts, that is, 

without unanimous agreement that he committed the crime charged. 

 We are aware that the U.S. Court of Appeals for the 

Seventh Circuit has declined to follow our decision in Echeverri. 

United States v. Canino, 949 F.2d 928, 947-48 (7th Cir. 1991), 

cert. denied, 112 S. Ct. 1701, and cert. denied, 112 S. Ct. 1940, 

and cert. denied, 112 S. Ct. 1954 (1992). The court there argued 

that the result in Echeverri "is at odds with the purpose of the 

[CCE statute] which is interested in punishing a defendant whom 

the jury is convinced was involved in a related series of drug 

activity with relevant frequency. It is the defendant's 

demonstrated frequency in participating in conspiratorial drug 

offenses that is the focus of the [CCE] offense, rather than any 

particularization of the acts used to demonstrate 'continuous.'" 

Id. at 948 n.7. 

 We respectfully disagree with the Seventh Circuit's 

analysis. Implicit in its approach is the view that the 

predicate offenses making up a "continuous series" of violations 

and their "relatedness," like the identities of the underlings, 

are immaterial "means" and not material elements of the crime 

requiring specific juror agreement. The court reasoned, for 

example, that "the exact specification by unanimous jury consent 
of any particular three of a greater number of offenses is 

irrelevant to any theory about why punishment should be enhanced 

for such uniquely antisocial activity." Id. at 948. We believe 

Congress drafted the CCE statute as it did because it regarded 

the existence of a series of related offenses as material to 

whether the substantially enhanced punishment there provided is 

appropriate. Moreover, in the absence of evidence that Congress 

intended to depart from the traditional approach of our criminal 

jurisprudence, we decline to attribute to it an intent that this 

enhanced punishment be visited on a defendant where the jury is 

unable to agree beyond a reasonable doubt that the defendant 

participated in three specific events constituting such a series. 

 The relevant point is not, as the Seventh Circuit views 

it, whether a person who commits three related drug violations 

with the requisite sized group on May 12th, 13th, and 14th of a 

given year is as culpable as if he or she commits similar 

violations with the requisite sized group on June 12th, 13th, and 

14th. The relevant point is that a person cannot be held 

criminally responsible if half of the jury believes the defendant 

committed the conduct described by the statute on May 12th, 13th, 

and 14th, but not in June, and the other half believes the 

defendant committed the conduct described by the statute on June 

12th, 13th, and 14th, but not in May. Cf. Schad, 501 U.S. at 651 

(Scalia, J., concurring) (stating that "moral equivalence" would 

not justify upholding an assault conviction where a portion of 
the jury may have believed the defendant assaulted X on Tuesday, 

while the other half may have believed the defendant assaulted Y 

on Wednesday). 

 This case is governed by Echeverri and its forbearers,2

not Jackson. We are confronted here with a situation in which 

the trial court correctly charged that a "continuing series," 

that is, "three or more violations . . . related to each other," 

was an element of the offense and that the jury must unanimously 

agree on each element of the offense. However, the trial court 

failed to further explain what unanimity meant in this context. 

Although this may not have been plain error had Edmonds not 

requested a more specific explanation, he did so request.3 

C. 

 That the trial court erred in not giving the 

appropriate unanimity instruction does not end our inquiry, 

however. We still must determine whether we could affirm 

Edmonds' CCE conviction on the ground that the failure to give 

 

2. E.g., United States v. Beros, 833 F.2d 455 (3d Cir. 1987). 

3. In United States v. Anderson, 859 F.2d 1171 (3d Cir. 1988), 

we held that the failure to give a further explanation in a 

similar situation in the absence of a request was not plain 

error. The appellant did not make the same argument made here 

about the requirement of relatedness. Rather, he complained 

about the failure to instruct specifically that three criminal 

acts were required and that the jury had to unanimously agree on 

which three criminal acts occurred. We found that the district 

court erred but that its error did not result in plain error 

because the jury unanimously found the appellant guilty of three 

counts of distribution and one count of conspiracy. Id. at 1175. 
the proper instruction was harmless error. Given the evidence in 

this case, it is difficult to believe that a rational jury who 

was convinced beyond a reasonable doubt that Edmonds committed 

all eight of the violations alleged to constitute the "continuing 

series," would then have failed to conclude that each and every 

one of those acts were related. The evidence that the jury must 

have credited to convict Edmonds of the eight crimes alleged to 

constitute the series established that there was a single, ongoing scheme and that Edmonds used the same packers and method of 

distribution throughout the relevant period. Nevertheless, 

we conclude that the Supreme Court's decision in Sullivan v. 

Louisiana, 113 S. Ct. 2078 (1993), precludes us from engaging in 

a harmless error analysis. 

 Sullivan concerned the propriety of appellate courts 

engaging in harmless error analysis where the jury instructions 

gave an unconstitutional definition of reasonable doubt.4 The 

Court ruled that permitting harmless error analysis in that 

 

4. The trial judge in Sullivan gave a definition of reasonable 

doubt essentially identical to the definition the Supreme Court 

had held unconstitutional in Cage v. Louisiana, 498 U.S. 39 

(1990) (per curiam). The charge held unconstitutional in Cage

explained that reasonable doubt "must be such doubt as would give 

rise to grave uncertainty . . . . It is an actual substantial 

doubt. . . . What is required is not an absolute or mathematical 

certainty, but a moral certainty." Id. at 40. The Court in Cage

ruled that given this instruction "a reasonable juror could have 

interpreted the instruction to allow a finding of guilt based on 

a degree of proof below that required by the Due Process Clause." 

Id. at 41. 
situation would violate the defendant's Sixth Amendment right to 

a jury trial. It explained: 

 Since [the jury never found the defendant 

guilty beyond a reasonable doubt,] there has 

been no jury verdict within the meaning of 

the Sixth Amendment [and] the entire premise 

of Chapman [v. California, 386 U.S. 18 

(1967),] review is simply absent. There 

being no jury verdict of guilty-beyond-areasonable-doubt, the question whether the 

same verdict of guilty-beyond-a-reasonabledoubt would have been rendered absent the 

constitutional error is utterly meaningless. 

There is no object so to speak, upon which 

harmless error scrutiny can operate. The 

most an appellate court can conclude is that 

a jury would surely have found petitioner 

guilty beyond a reasonable doubt -- not that 

the jury's actual finding of guilty beyond a 

reasonable doubt would surely not have been 

different absent the constitutional error. 

 . . . The Sixth Amendment requires more than 

appellate speculation about a hypothetical 

jury's action, or else directed verdicts for 

the State would be sustainable on appeal; it 

requires an actual jury finding of guilty. 

Sullivan, 113 S. Ct. at 2082. 

 The relatedness requirement is an element of the CCE 

offense. Accordingly, the government was required to prove, and 

the jury was required to unanimously find, relatedness beyond a 

reasonable doubt. See Sullivan, 113 S. Ct. at 2080. The jury 

instruction in this case therefore permitted the jury to return a 

nonunanimous verdict on an element of the offense. Thus, as in 

Sullivan, there has been no actual jury finding of guilty on the 

CCE charge against Edmonds. Under Sullivan, we cannot rule that 
the error was harmless.5 It follows that Edmonds' CCE conviction 

must be reversed. 

III. 

 Carlton Love and Cora Love maintain that the trial 

court improperly attributed to them for sentencing purposes a 

larger quantity of narcotics than was justified by the trial 

evidence. When reviewing a district court's sentencing 

decisions, a court of appeals has plenary review over legal 

questions about the meaning of the Sentencing Guidelines. United 

States v. Fuentes, 954 F.2d 151, 152-53 (3d Cir.), cert. denied, 

112 S. Ct. 2950 (1992). The factual determinations underlying 

the application of the Guidelines are reviewed under the clearly 

erroneous standard. Id. When a district court employs an 

appropriate legal standard, we will not disturb its determination 

 

5. Rose v. Clark, 478 U.S. 570, 580 (1986), does not require a 

different result. There, the Court held that a jury-instruction 

error erecting a presumption regarding an element of the offense 

(malice), while violating Fourteenth Amendment, nevertheless was 

harmless error. Although the jury there was instructed to 

presume malice from certain predicate facts, it still was 

required to find the existence of those facts beyond a reasonable 

doubt. The Court concluded that a finding of the underlying 

facts there was "functionally equivalent" to finding the presumed 

element of malice. Here, on the other hand, the government asks 

us to assume relatedness from the mere fact that Edmonds was 

found guilty on each of the underlying violations. This would 

require us to engage in pure speculation -- to impose our "view 

of what a reasonable jury would have done." Sullivan, 113 S. Ct. 

at 2082. To do so would impermissibly permit the "wrong entity 

[to] judge the defendant guilty." Rose, 478 U.S. at 578. That, 

we cannot do. 
of the amount of drugs attributable to a particular defendant 

unless that determination is clearly erroneous. United States v. 

Nagi, 947 F.2d 211, 215 (6th Cir. 1991), cert. denied, 112 S. Ct. 

2309, and cert. denied, 112 S. Ct. 2309 (1992). 

A. 

 The district court determined that Carlton Love was 

involved in a conspiracy to distribute at least 500 kilograms of 

cocaine and 3 kilograms of heroin. The government originally 

attributed nine different shipments or requests for shipments of 

cocaine to Carlton Love. The government now has admitted that it 

has insufficient evidence to attribute to Carlton Love the final 

100 kgs shipment of cocaine. Our calculations reveal that this 

fact alone will reduce his offense level to 40. Accordingly, we 

will remand his case for resentencing.6

B. 

 

6. Based on a cocaine attribution of over 500 kgs and a heroin 

attribution of 3 kgs, the district court determined Carlton to 

have a base offense level of 40 in accordance with the drug 

quantity table contained in USSG §2D1.1(c)(2). At a criminal 

history category of I, and with a two-level increase for 

possession of a firearm in connection with drug-trafficking 

activities, Carlton's sentencing range was 360 months to life. 

The district court sentenced Carlton to 360 months. If less than 

500 kgs of cocaine are attributed to Carlton, he falls under 

§ 2D1.1(c)(3), which reduces his base offense level from 40 to 

38, and, with the two-level increase for possession of a firearm, 

yields a sentence of 292 to 365 months. 
 The district court attributed four separate shipments 

of cocaine to Cora Love.7 Each shipment originated in the 

Philadelphia area and was transported to Detroit in rental cars 

driven by Russell Freeman, Sr. Cora Love was among those who met 

Freeman, Sr. at a Detroit hotel at the end of each of these four 

trips. She also was the person who each time paid Freeman, Sr. a 

courier fee. The government argues that the record supports a 

finding that the first shipment weighed 25 kgs and that the 

second through fourth shipments weighed 50 kgs each. 

Accordingly, it attributes a total of 175 kgs of cocaine to Cora 

Love for sentencing purposes. Our review of the record has 

disclosed the following evidence with respect to each of the four 

shipments. 

 Russell Freeman, Jr. testified that his father made 

four trips to Chicago in late 1991 and 1992 and that on each 

 

7. Cora Love denies that any of these four shipments should be 

attributed to her, claiming that she was an unwitting courier. 

The record contains ample evidence supporting the district 

court's conclusion that she knew exactly what she was doing, 

however. She drove a car on four occasions to pick up sealed 

suitcases of cocaine upon their arrival in Detroit. She also 

handed Russell Freeman, Sr. money for the drugs. In addition, 

she brought Ekwensi a package of Bounce Fabric Softener sheets 

from the store Cora Love managed so that Ekwensi could package 

drug money for transport. (Bounce apparently makes the presence 

of drug residue on the money more difficult to detect.) Further, 

Cora Love at one point told Ekwensi, as the two were about to 

meet Freeman, Sr., not "to look too obvious" and to "just look 

casual about it." (App. at 754.) We accordingly conclude that 

the trial court's ruling that Cora Love was involved in these 

four shipments was not clearly erroneous. 
occasion his father transported between 35 kgs and 50 kgs of 

cocaine. 

 The first shipment -- Russell Freeman, Sr. testified 

that he first transported cocaine to Detroit in December 1991. 

That first shipment consisted of two suitcases. Ekwensi 

testified that she met Freeman, Sr. upon his arrival in Detroit 

and that she carried the lighter of the two suitcases to the car 

driven by Cora Love. Ekwensi further testified that "there was 

about 12 keys in one of the pilot cases" (the one she carried) 

and that "[Freeman, Sr.] carried the heavy one." (Supp. app. III 

at 55a.) The district court attributed 25 kgs of cocaine to Cora 

Love for this first shipment, and Cora Love does not contest this 

attribution. 

 The second shipment -- The second shipment also 

occurred in December 1991, "just before Christmas." Freeman, Sr. 

testified that he again delivered two suitcases, although he did 

not state how much each suitcase weighed. The government 

contends that this evidence, coupled with Freeman, Jr.'s 

statement that each of his father's deliveries weighed between 

35 kgs and 50 kgs, supports the district court's finding that the 

shipment contained 50 kgs of cocaine. 

 The third shipment -- Freeman, Sr. delivered the third 

shipment to Detroit in January 1992. Ekwensi estimated that the 

shipment weighed "[a]nywhere from 40 to 50 keys, leaning more 

toward 50 keys." From this, the government concluded that Cora 
Love should be attributed an additional 50 kgs. The district 

court agreed. 

 The fourth shipment -- The court found that the final 

shipment attributable to Cora Love also weighed 50 kgs. The most 

precise evidence regarding this shipment came from Ekwensi, who 

indeed testified at first that the shipment weighed 50 kgs. She 

then stated that she lowered the price she charged Carlton Love 

for the drugs after he pointed out that each "kilogram" was 

missing four ounces. One ounce weighs 28.349 grams. 

Accordingly, if one takes into account the reduction, the 

shipment weighed roughly 5.5 kgs less than the 50 kgs that the 

court attributed to Cora Love on the fourth shipment. 

 The district court thus attributed 175 kgs to Cora 

Love. Any attribution of more than 150 kgs results in an offense 

level of 38, the offense level utilized in determining Cora 

Love's sentence. We believe there is evidence from which a fact 

finder, with appropriate findings and explanations, could 

properly attribute to Cora Love either more or less than 150 kgs. 

We cannot, however, sustain the district court's allocation based 

on the current record. 

 Attributing quantities of drugs for sentencing purposes 

is an oft-recurring task for district judges. The magnitude of 

the consequences that can flow under the Sentencing Guidelines 

from one attribution rather than another make this a very 

important undertaking. It can also be a very difficult one, in 
part because precise drug-weight information is frequently not 

available. Because the available relevant information is often 

imprecise, the Guidelines recognize that the sentencing scheme 

they contemplate cannot work unless judges are authorized to 

estimate the quantity of drugs possessed or distributed on a 

particular occasion. See, e.g., USSG. § 2D1.1 application note 

12 ("where there is no drug seizure or the amount seized does not 

reflect the scale of the offense, the court shall approximate the 

quantity of the controlled substance"). We have cautioned, 

however, that the necessity of estimating drug weights for 

sentencing purposes "is not a license to calculate drug amounts 

by guesswork." United States v. Paulino, 996 F.2d 1541, 1545 

(3d Cir.), cert. denied, 114 S. Ct. 449, and cert. denied, 

114 S. Ct. 618 (1993). 

 The government has the burden of providing a rational 

basis for an assessment of drug weight and a sentencing court has 

the responsibility of identifying a rational basis for the 

attribution it ultimately makes, assuming that basis is not 

otherwise obvious from the record. In the absence of such 

evidentiary support and an appropriate explanation, the 

Guidelines sentencing process can exact grave sanctions on a 

wholly arbitrary basis. While a sentencing judge cannot insist 

on being satisfied that a particular weight is more likely than 

not the historically correct weight, he or she can insist that 

the government provide information from which the court can 
conclude that more likely than not the historically correct 

weight equaled or exceeded the weight attributed. See Paulino, 

996 F.2d at 1545 (stating that "the sentencing court must 

carefully scrutinize the government's proof to ensure that its 

estimates are supported by a preponderance of the evidence"); see 

also United States v. Collado, 975 F.2d 985, 998 (3d Cir. 1992) 

(same). 

 When a law enforcement officer or lay person familiar 

with a drug indicates that he or she has observed or handled a 

quantity of drugs and estimates that it weighed five kilograms, 

there is a rational basis for the court to estimate the weight at 

five kilograms. When such a person estimates the weight to be 

between four and six kilograms and it is apparent that he or she 

is simply taking into account that he or she is making an 

approximation, there is a similar rational basis for the court to 

estimate the weight at five kilograms. But where a knowledgeable 

person provides a range of weights, this alone does not provide a 

rational basis for attributing to the defendant the highest 

weight in that range. 

 Thus, in this case, we do not believe that Ekwensi's 

testimony that the cocaine in the third shipment weighed 

"[a]nywhere from 40 to 50 keys" provides a rational basis for 

attributing 50 kilograms to Cora Love even though Ekwensi added 

the modification "leaning more towards 50 keys." Nor do we 

believe that Freeman, Jr.'s testimony, without more, can supply a 
rational basis for concluding that the weight of the cocaine on 

the second trip was 50 kgs. As with Ekwensi's testimony about 

the third shipment, a sentencing judge may not arbitrarily select 

the highest figure in an estimated range of weights. 

 Moreover, we believe Freeman, Jr.'s testimony would not 

warrant a judge in assigning the average of 35 kgs and 50 kgs, or 

42.5 kgs to each of the four shipments. It seems apparent from 

its context that Freeman, Jr.'s 35 kgs to 50 kgs statement was 

not intended either as an estimate of a constant amount of drugs 

transported on each of the four occasions or as an estimate of 

the average weight of the shipments. Rather, he appears to be 

saying that the smallest shipment was 35 kgs, the largest was 50 

kgs, and the other two shipments were no smaller or larger. If 

the district court concludes that this is the import of Freeman, 

Jr.'s testimony, that testimony would not justify an approach 

which would merely strike an average between 35 kgs and 50 kgs. 

 There is evidence, we believe, from which a trier of 

fact could conclude that Freeman, Jr. packed his father's car 

with cocaine before the start of each trip and that he was 

keeping track of the quantity of drugs being delivered in each 

instance. If the district court concludes that this was the case 

and that the import of his testimony was as we have hypothesized, 

we believe Freeman, Jr.'s testimony would provide a rational 

basis for a finding that the total weight of the four shipments 
was at least 155 kgs (i.e., one shipment of 35 kgs, one of 50 kgs 

and two of at least 35 kgs). 

 Turning to the evidence concerning the fourth shipment, 

we conclude that Ekwensi's testimony cannot, without further 

explanation, support a finding that 50 kgs were transported on 

this occasion. Without the benefit of an explanation from the 

district court, we can think of no rational basis on which a 

trier of fact could accept her initial testimony that the weight 

was 50 kgs without also crediting her acknowledgement that she 

was forced to drop the price because each kilogram was missing 

four ounces. 

 As the court observed in United States v. Sepulveda, 15 

F.3d 1161, 1199 (1st Cir. 1993), cert. denied, 114 S. Ct. 2714 

(1994), a "sentencing court remains free to make judicious use of 

properly constructed averages." But this does not relieve the 

government of its burden of providing the court with sufficient 

information to permit a conclusion that the average more likely 

than not is equal or less than the historically accurate weight 

of the drugs attributable to the defendant. While we believe it 

may be possible to conclude from this record that, more likely 

than not, the four shipments totalled in excess of 150 kilograms, 

that conclusion would have to be based on factual findings that 

the district court has yet to make. Accordingly, we will remand 

Cora Love's case to the district court for more fact finding and 

possible resentencing. 
IV. 

 On August 12, 1992, FBI agents attempted to arrest 

Carlton Love at his residence in an apartment complex on 

Riverside Drive in Southfield, Michigan, pursuant to an arrest 

warrant. The warrant application was supported by an affidavit 

that summarized the results of the FBI's six months of 

investigation. That affidavit provided information about thirtyone Federal Express shipments containing illegal drugs sent to 

addresses associated with the nationwide cocaine- and heroindistribution operation and referred to telephone conversations 

which had been intercepted in which Carlton Love and Ekwensi 

discussed drug and money transactions. Included with the 

excerpts of the conversations between the co-conspirators were 

the agent's suggested interpretations of the dialogue, based upon 

his experience and expertise in drug trafficking investigations. 

Based upon the information in the affidavit, the magistrate 

properly concluded that there was a fair probability Carlton Love 

was engaged in illegal drug trafficking. 

 When the FBI agents entered Carlton Love's apartment 

with the warrant for his arrest, they did not find him there. 

They did, however, find drug paraphernalia in plain view. This 

evidence was seized after the agents secured a search warrant 

based on the information contained in the arrest warrant 
affidavit and what they had learned during their visit to Carlton 

Love's apartment. 

 Love acknowledges that "an arrest warrant founded on 

probable cause implicitly carries with it the limited authority 

to enter a dwelling in which the suspect lives when there is a 

reason to believe the suspect is within." Payton v. New York, 

445 U.S. 573, 603 (1980). He insists, however, that the agents 

had no reasonable grounds for believing that he was at home when 

they entered his apartment with the arrest warrant. He maintains 

that, as a result, the search warrant was invalid and the items 

seized under its authority should have been suppressed. The 

district court concluded that the agents had reason to believe 

Carlton Love was in his apartment on the morning of August 12th, 

and we agree. 

 The agents' investigation disclosed that Carlton Love 

signed the lease and paid the rent for apartment 1725 at 23600 

Riverside Drive. The gas service account was in his name and the 

telephone was listed in the name of his mother. On August 11th, 

a management representative of the apartment complex, during a 

visit from the agents, confirmed that Carlton Love lived in the 

apartment and that he used the black Ford Mustang then parked 

immediately in front of the apartment. 

 The agents asked the management representative to call 

if Carlton Love was seen in the complex. Later that day, the 

agents were called and advised that he had been observed exiting 
his apartment and departing the area. Thus, as of the evening of 

August 11th, the agents had current information indicating that 

Carlton Love was then living in the apartment. 

 The agents came to the apartment to arrest Carlton Love 

at 6:45 a.m., early enough that it was unlikely someone living in 

the apartment would have already departed for the day. On their 

arrival, they observed the black Mustang parked in front of the 

apartment. They maintained surveillance as other residents of 

the complex departed for their daily activities. By 9:30 a.m. 

all of the vehicles near the apartment except the black Mustang 

were gone. No one had left the Love apartment. At approximately 

9:40 a.m., the agents entered the exterior door and proceeded to 

the interior door of apartment 1725. Simultaneously, they called 

the telephone number of the apartment, knocked on the door, and 

announced their presence. There was no response. The agents 

"thought that there was a good possibility that [Love] was in 

there hiding." 

 The agents then called an Assistant United States 

Attorney to secure his opinion as to whether they had probable 

cause to enter the apartment to search for Carlton Love. After 

receiving an affirmative response, they again called, knocked, 

and announced themselves at the interior door to the apartment. 

Receiving no response, they entered using a key provided by the 

management. 
 Once inside and not finding anyone in the living room, 

they proceeded to the master bedroom and closet where they 

thought Carlton Love might be hiding. On the floor of the closet 

was a large cardboard box containing "plastic baggy material" and 

a vinyl case similar to cases they had previously seen used to 

carry three beam scales. They left the apartment and sought a 

search warrant. Carlton Love was arrested the following day 

while boarding an airplane. 

 Carlton Love stresses that the last sighting of him 

prior to the entry of the agents had been of him leaving the 

apartment. In his view, from this fact and the fact that the 

agents received no response to their simultaneous call and knock, 

the agents undoubtedly realized, or should have realized, that he 

was not in the apartment on the morning of August 12th. In our 

view, while the information available to the agents clearly did 

not exclude the possibility that Carlton Love was not in the 

apartment, the agents had reasonable grounds for concluding that 

he was there. Normally, a person who is currently living at an 

apartment returns there at some point to spend the night and does 

not leave prior to 6:45 a.m. The presence of the black Mustang 

immediately in front of the Love apartment tended to confirm what 

one would normally expect and this expectation was not dispelled 

by the fact that someone probably involved in a drug operation 

did not appear when the agents announced themselves at his door. 
V. 

 We have considered the remaining issues raised by the 

appellants and have concluded that they do not warrant a reversal 

of their convictions or a change in their sentences.8

VI. 

 For the foregoing reasons, we will reverse the judgment 

of the district court against Theodore Edmonds on the charge of 

managing, supervising, and organizing a continuing criminal 

enterprise, in violation of 21 U.S.C. § 848. The district 

court's sentences of Cora Love and Carlton Love will be vacated 

 

8. Those remaining issues, as articulated by the appellants, 

are: First, all the appellants maintain that the trial court 

erred in admitting wiretap evidence at trial, alleging that both 

the affidavits in support of the wiretaps and the orders 

authorizing the wiretaps did not meet the requirements of 18 

U.S.C. § 2518. Second, all appellants maintain that they were 

denied a fair trial because the trial judge persistently 

interfered with and placed improper limitations on defense 

counsels' efforts to mount a defense. Third, all appellants 

except for Cora Love claim that the trial court erred when it 

instructed the jury that the appropriate measure of forfeiture 

was the "gross proceeds" received by the various defendants. 

Fourth, Carlton Love argues that the trial court for sentencing 

purposes incorrectly concluded that he possessed a firearm in 

connection with drug-trafficking activities. Fifth, Duncan 

appeals his sentencing, arguing (1) that the district court 

incorrectly attributed a larger portion of the narcotics to him 

than was justified and (2) that the court used the wrong standard 

when it rejected his claim that he played a minor role in the 

conspiracy which resulted in accomplice attribution. Finally, 

Duncan argues that the district court committed plain error when 

it admitted his co-conspirators' guilty pleas on the issue of 

credibility. 

 
and their cases will be remanded for further sentencing 

proceedings consistent with this opinion. We will affirm the 

judgments of the district court in all other respects.9

U.S. v. Edmonds, Duncan, Love & Love

Nos. 93-1890, 1914, 1920 & 1947 

HUTCHINSON, Circuit Judge, Concurring. 

 I concur with the result the Court reaches in these 

cases and with much of the reasoning in Judge Stapleton's fine 

opinion. Specifically, I agree with the Court that United States 

v. Echeverri, 854 F.2d 638, 642-43 (3d Cir. 1988), requires us to 

vacate Theodore Edmonds' conviction of managing, supervising and 

organizing a continuing criminal enterprise ("CCE") in violation 

of 21 U.S.C.A. § 848 (West 1981 & Supp. 1994). See Opinion of 

 

9. After oral argument in this case Cora Love and Carlton Love 

filed a motion to add an additional issue on appeal. Their 

motion did not state adequate grounds explaining why they failed 

to raise these issues earlier, however. Accordingly, their 

motion will be denied. 
the Court, Part II, at 7-20; IOP 9.1. I write separately, 

however, to note that if this particular issue were a matter of 

first impression, I would be inclined to follow the reasoning of 

the Seventh Circuit in United States v. Canino, 949 F.2d 928, 

947-48 (7th Cir. 1991), cert. denied, 112 S. Ct. 1701, and cert. 

denied, 112 S. Ct. 1940, and cert. denied, 112 S. Ct. 1954 

(1992). 

 Echeverri precludes me from following that course. 

Nevertheless, I believe Echeverri can lead to results that are 

inconsistent with the purpose of the CCE statute and does so in 

this case where the jury convicted Edmonds of all the substantive 

counts involved in all of the predicate felonies. I recognize 

that the district court could have easily avoided the unanimity 

problem if it had not refused to give the jury instruction the 

defense requested on the need for unanimity in all respects 

material to a CCE case, including specifically those offenses 

that the jury believed were "related." Nevertheless, the Court 

concedes: "As a matter of logic, . . . the jurors must have 

unanimously agreed [in this case] that Edmonds committed every 

felony in the alleged `series,'" but then goes on to conclude 

this does not establish unanimity on relatedness. Opinion of the 

Court, Part II, at 11. I agree with the Court this latter 

conclusion is a corollary of Echeverri. See id. at 7-20. 

 I am dubitante on the Court's conclusion that harmless 

error analysis is foreclosed by Sullivan v. Louisiana, 113 S. Ct. 
2078 (1993). See Opinion of the Court, Part II, at 18-20. 

Regardless, I believe the tension, which the Court recognizes, 

between Echeverri and United States v. Jackson, 879 F.2d 85 (3d 

Cir. 1989) warrants reconsideration of this unanimity requirement 

as it relates to a continuing criminal enterprise. Therefore, 

because Echeverri is a controlling precedent, I concur in the 

Court's disposition of Edmonds' appeal. 

 In all other respects, I am in full agreement with the 

reasoning in the Court's opinion. 
U.S. v. Edmonds, Duncan, Love & Love, 

Nos. 93-1890, 1914, 1920 & 1947 

GARTH, Circuit Judge, Concurring in Part and Dissenting in Part: 

 I concur in all but one of the conclusions reached by 

the majority. And while I share Judge Hutchinson's concerns 

regarding the Echeverri doctrine, and believe that the conceptual 

tension between Echeverri and Jackson calls for further 

resolution, I agree that Echeverri and our Internal Operating 

Procedure 9.1, which precludes us from overturning an earlier 

panel's position, constrain our disposition of the present 

matter. I therefore agree that Edmonds' conviction must be 

reversed. 

 The only aspect of the majority opinion with which I 

differ concerns the decision to vacate Cora Love's sentence and 

remand her case for resentencing by the district court. I agree 

that arbitrariness in drug-quantity attributions cannot be 

tolerated. I am also in full accord with the guidelines and 

principles ably set forth by the majority to achieve the 

objective of determining a rational basis on which to predicate a 

defendant's sentence. See Opinion of the Court, Part III.B. 

 However, as I read the record, any appropriate 

calculation of the amount of cocaine attributable to Cora Love 

must exceed the threshold of 150 kgs specified in U.S.S.G. 
§ 2D1.1(c)(3).10 I believe that the record provides ample 

support for the very "rational basis" which the majority requires 

in order to uphold Cora Love's sentence. Indeed, I find that it 

cannot otherwise be read. I thus believe it unnecessary to 

remand and require the district court to reconsider Cora Love's 

sentence. For this reason, I respectfully dissent. 

 As is detailed by the majority, the record reflects 

four shipments attributable to Cora Love as follows: 

Shipment Supporting Quantity - giving 

 Number Testimony the benefit of the record 

 (kgs per shipment) to Cora Love 

________________________________________________________________ 

One Freeman, Jr.: 35-50. 25 kgs 

 Ekwensi: 25. 

Two Freeman, Jr.: 35-50. 42.5 kgs 

Three Freeman, Jr.: 35-50. 45 kgs 

 Ekwensi: "40 to 50, 

 leaning towards 50." 

Four Freeman, Jr.: 35-50. 44.5 kgs 

 Ekwensi: 50 - but each 

 kg was also "short" 

 four ounces, for a 

 total of 44.5 kgs. 

 _________________________ 

 

 

10.Section 2D1.1(c)(3) of the 1992 United States Sentencing 

Guidelines provides for a base offense level of 38 for "[a]t 

least 150 KG but less than 500 KG of Cocaine...." With a 

Criminal History Category of 0 and a two-level reduction for 

minor participation, Cora Love was subject to a sentence of 188-

235 months. The district court sentenced Cora Love to 188 

months. 
 Total: 157 kgs 

 On my reading of the record, based on Ekwensi's 

testimony, which in this instance is not contested by Cora Love, 

I would attribute no more than 25 kgs for the first shipment. 

 As to the second shipment, I read Freeman Jr.'s 

testimony that "[e]ach trip my father took it was somewhere 

between 35 and 50 kilos of cocaine" (Supp. App. III p. 75a) to 

yield the rational inference, not that there were four deliveries 

ranging in size from 35 to 50 kgs as the majority suggests, see

Maj. Op. at 27-28, but that each of the four shipments weighed 

between 35 and 50 kgs, a fact which, on the majority's own 

analysis, would result in an average of 42.5 kgs for each 

shipment. 

 Courts have sanctioned the use of averages to compute 

drug weights in other cases. See, e.g. United States v. 

McMillen, 8 F.3d 1246, 1250-51 (7th Cir. 1993); see generally

Federal Judicial Center, Guideline Sentencing: An Outline of 

Appellate Case Law on Selected Issues 21-32 (1994). And the 

majority here so acknowledges. Maj. Op. at 28. In this case, 

Freeman, Jr. has testified that each shipment weighed between 35 

and 50 kgs, thereby establishing an average of 42.5 kgs for the 

second shipment, as to which no other testimony was given. 

 Freeman, Sr. delivered the third shipment sometime in 

January of 1992. Ekwensi estimated that the shipment weighed 

"[a]nywhere from 40 to 50 keys, leaning more toward 50 keys." 
Under the majority's own analysis, every reason exists to 

attribute to Cora Love at the least, 45 kgs. 

 As to the fourth shipment, I am in accord with the 

majority's reasoning and the majority's attribution of 44.5 kgs 

to Cora Love. Maj. Op. at 24. 

 The four shipments, therefore, total 157 kgs, and this 

total is reached without taking into account an additional 28 kgs 

referred to in Count V of the Indictment. Cora Love was 

convicted on this Count, and the government points out that this 

amount should have been included in Cora Love's attributed total, 

but for some reason was not. See Government's Letter Memorandum 

dated October 25, 1994, p. 3. If one adds this 28 kgs to the 157 

kgs noted above, a total of 185 kgs results. But even if the 28 

kgs are not added to the weight of the first four shipments, the 

total still exceeds the 150 kg threshold of § 2D1.1(c)(3). 

 The above calculations, which comport with each and 

every principle and guideline laid down by the majority, can only 

lead to one conclusion -- that the record, as it presently 

exists, yields a rational basis for attributing over 150 kgs of 

cocaine to Cora Love. The drug weights attributed to Cora Love, 

giving her every benefit of the record, necessarily exceed 150 

kgs. This being so, I cannot bring myself to vote for a remand 

to an overworked and overburdened district court so that the 

court may engage in the meaningless task of resentencing Cora 

Love. This procedure might well entail the taking of additional 
evidence and would, at the very least, require additional 

findings drawn from a record which, I believe, just cannot be 

read to reveal less than 150 kgs. 

 I therefore dissent from so much of the majority's 

judgment as would vacate Cora Love's sentence and remand her case 

to the district court for what I regard as a needless exercise in 

sentencing endeavors.