FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 19, 2002

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________________________

No. 01-12338

____________________________

D. C. Docket Nos. 97-00008 CV-1-MMP

and 89-01007-CR-1-M

ALLAN ROSS,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

_______________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(April 19, 2002)

Before EDMONDSON, HILL and LAY*, Circuit Judges.

____________________

*Honorable Donald P. Lay, U.S. Circuit Judge for the Eighth Circuit, sitting by

designation.
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PER CURIAM:

Petitioner Allan Ross, a federal prisoner, appeals the district court’s denial of

his 28 U.S.C. § 2255 motion for habeas relief. We conclude that the district court

correctly denied Petitioner’s section 2255 motion, and we affirm that ruling. 

In 1992, Ross was tried under a three-count indictment for engaging in a

continuing criminal enterprise (“CCE”) in violation of 21 U.S.C. § 848 (Count I),

conspiracy to import cocaine and marijuana in violation of 21 U.S.C. §§ 952, 963

(Count II), and conspiracy to possess with intent to distribute cocaine and

marijuana in violation of 21 U.S.C. §§ 841, 846 (Count III). At trial, he requested

a jury instruction requiring the jury to agree unanimously on which offenses

constituted the continuing series of violations of the CCE charge. The district

court, pursuant to Circuit precedent at that time, denied Ross’s request. The jury

convicted Ross on all three counts, and he was sentenced to three concurrent life

sentences and fined $2 million pursuant to Count I and $4 million each pursuant to

Counts II and III.

On direct appeal, Ross argued, among other things, that the district court’s

failure to give his requested unanimity instruction constituted reversible error. We

affirmed Ross’s conviction and sentencing. See United States v. Ross, 33 F.3d

1507 (11th Cir. 1994). Ross filed a petition for habeas relief under 28 U.S.C. §
 1

We, because no certificate of appealability was granted about insufficiency of the indictment

issue, decline to address Ross’s argument on that issue. See Murray v. United States, 145 F.3d 1249,

1251 (11th Cir. 1998) (“[A]ppellate review is limited to the issues specified in the [certificate of

appealability].”). In this case, we granted a certificate of appealability on the following issue:

“whether Appellant’s rights were violated in light of [Richardson], by the trial court’s jury

instruction regarding the elements of the [CCE] offense.” (emphasis added). 

3

2255 and a motion for a new trial. While his section 2255 motion was pending, the

Supreme Court decided Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707

(1999), in which the Court concluded that “a jury has to agree unanimously about

which specific violations make up the ‘continuing series of violations’” of a CCE

charge. See Richardson, 526 U.S. at 815, 119 S. Ct. at 1708. The district court

denied all claims raised in Ross’s original section 2255 motion but granted Ross

leave to amend his petition to add a claim based on Richardson. 

The district court ultimately denied Ross habeas relief on his Richardson

claim. The district court concluded that, while Richardson does apply retroactively

to cases on collateral review, Richardson error was subject to review for harmless

error. And the district court determined that the failure to give a unanimity

instruction at Ross’s trial constituted harmless error. We granted a certificate of

appealability on whether Ross was due relief in the light of Richardson.

1

The district court’s determination that the rule articulated in Richardson

should be applied retroactively to cases on collateral review is an issue of law to be

examined de novo. Our sister circuits which have addressed this issue have
4

concluded that Richardson does apply retroactively to cases on collateral review. 

See Santana-Madera v. United States, 260 F.3d 133, 139 (2d Cir. 2001); United

States v. Lopez, 248 F.3d 427, 432 (5th Cir. 2001); Lanier v. United States, 220

F.3d 833, 838 (7th Cir. 2000); Murr v. United States, 200 F.3d 895, 906 (6th Cir.

2000). 

The government contends that Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct.

1060, 1075 (1989), under which new constitutional rules of criminal procedure are

generally inapplicable to cases on collateral review, bars application of the rule in

Richardson in this case. Teague’s bar, however, does not apply when the Supreme

Court decides a new substantive rule of criminal law as opposed to a new

procedural rule. And a new rule is substantive when it interprets “the meaning of a

criminal statute enacted by Congress” so that the conduct for which a defendant

was convicted may no longer be illegal. Bousley v. United States, 523 U.S. 614,

620, 118 S. Ct. 1604, 1610 (1998). 

In Richardson, the Supreme Court concluded that 21 U.S.C. § 848's ‘series

of violations’ refers to several ‘violations,’ each of which the jury must agree on

unanimously. Richardson, 526 U.S. at 824, 119 S. Ct. at 1713. Therefore, the

Court changed the elements of a CCE offense and, thus, changed the meaning of

that statute. 
5

We reject the government’s contention that Richardson is akin to the

decision in United States v. Gaudin, 515 U.S. 506, 522-23, 115 S. Ct. 2310, 2319-

20 (1995), in which the Supreme Court concluded that materiality was an element

to be decided by the jury (and not the district court) and which we have held is

inapplicable to cases on collateral review. In Gaudin, neither party disputed that

materiality was an element of the charged offense; instead, they disputed who

decided that element. In contrast, pre-Richardson, a jury was required to find that

the accused committed a series of offenses; the jurors, however, were not required

to agree on what specific predicate offenses comprised this series. PostRichardson, if jurors cannot agree on what specific offenses make up the

continuing series, the accused must be acquitted of the CCE offense. Therefore,

we join our sister circuits in concluding that Richardson set out a new substantive

rule of criminal law which applies retroactively to cases on collateral review. 

Having determined that Richardson applies retroactively to cases on

collateral review, we must next decide whether harmless error analysis applies to

Richardson error. The courts of appeals which have addressed this issue have

concluded that Richardson error is subject to harmless error analysis. See SantanaMadera v. United States, 260 F.3d 133, 139-40 (2d Cir. 2001); Lanier v. United

States, 220 F.3d 833, 838-39 (7th Cir. 2000); United States v. Brown, 202 F.3d
6

691, 699 (4th Cir. 2000); United States v. Long, 190 F.3d 471, 476 n.3 (6th Cir.

1999); United States v. Escobar-de Jesus, 187 F.3d 148, 161-62 (1st Cir. 1999). 

We agree. A jury instruction which omits an element of the charged offense is

generally subject to harmless error analysis. See Neder v. United States, 527 U.S.

1, 9, 119 S. Ct. 1827, 1833 (1999) (“[A]n instruction that omits an element of the

offense does not necessarily render a criminal trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence.”). Structural error, to which

harmless error analysis does not apply, occurs only with “extreme deprivations of

constitutional rights, such as denial of counsel, denial of self representation at trial,

and denial of a public trial.” United States v. Nealy, 232 F.3d 825, 830 n.4 (11th

Cir. 2000). And we conclude that instructional error under Richardson is not

structural error, but instead is subject to review for harmless error.

The parties dispute precisely what harmless-error standard is applicable in

this case. In Brecht v. Abrahamson, 507 U.S. 619, 636-38, 113 S. Ct. 1710, 1721-

22 (1993), the Supreme Court concluded that the appropriate standard for

reviewing the harmlessness of a non-structural constitutional error on collateral

review of a state court judgment is the standard enunciated in Kotteakos v. United

States, 328 U.S. 750, 66 S. Ct. 1239 (1946). Under that standard, a defendant is

entitled to habeas relief when an error results in actual prejudice because it “had
7

substantial and injurious effect or influence in determining the jury’s verdict.” 

Brecht, 507 U.S. at 638, 113 S. Ct. at 1722. Ross, however, contends that the

instructional error in this case should be evaluated under the harmless-beyond-areasonable-doubt standard of Chapman v. California, 386 U.S. 18, 24, 87 S. Ct.

824, 828 (1967). He offers two reasons for this assertion. 

Ross notes that, because Brecht involved the habeas review of a state court

conviction, the Supreme Court relied on principles of comity and federalism, as

well as the State’s interest in the finality of convictions and the extraordinary

nature of habeas relief, in concluding that the more relaxed Kotteakos standard

should apply in reviewing harmlessness of error during collateral review. See

Brecht, 507 U.S. at 637, 113 S. Ct. at 1721-22. And, in Brecht, the state court had

already evaluated the error under the more stringent Chapman standard on direct

appeal. See id. at 636, 113 S. Ct. at 1721. Therefore, Ross contends, Brecht’s

relaxed harmless error standard should apply only when a federal appellate court is

reviewing a state conviction in which the alleged error has been evaluated under

the more stringent Chapman standard on direct appeal. 
 2

The Second Circuit has also been confronted with a collateral attack of a CCE conviction

because of Richardson error. But that court declined to decide what harmless error standard was

appropriate -- Brecht or Neder -- after concluding that the Richardson error in that case was harmless

under either standard. See Santana-Madera, 260 F.3d at 140. The Second Circuit did say that,

generally, when evaluating convictions on collateral review the Brecht standard was appropriate.

Id. 

8

Only the Sixth and Seventh Circuits have addressed which harmless error

standard is appropriate when reviewing Richardson error on habeas review.2

 The

Sixth Circuit has concluded that the Brecht standard applied, see Murr, 200 F.3d at

906 while the Seventh Circuit has applied the harmless-beyond-a-reasonable-doubt

standard of Chapman. See Lanier, 220 F.3d at 839.

We conclude that the Sixth Circuit is correct and that application of the

Brecht standard to Richardson error on collateral appeal is the appropriate

approach. In this Circuit, we apply the Brecht harmless error standard to the

habeas review of federal court convictions, as well as state court convictions. See

Vines v. United States, 28 F.3d 1123, 1130 (11th Cir. 1994). And we, when

looking at state decisions, have rejected the theory that the Brecht standard only

applies to convictions which have been previously reviewed under the Chapman

standard. See Horsley v. Alabama, 45 F.3d 1486, 1492 n.11 (11th Cir. 1995). 

Ross offers no compelling argument for why we should treat federal convictions

differently. We, therefore, conclude that the Brecht standard for harmless error

applies to our habeas review of the Richardson error at Ross’s trial.
9

We must now consider whether the district court’s failure to give a

unanimity instruction as required by Richardson constitutes harmless error under

Brecht in this case. When reviewing the harmlessness of an error under the Brecht

standard, “[i]f, when all is said and done, the [court’s] conviction is sure that the

error did not influence, or had but very slight effect, the verdict and the judgment

should stand.” O’Neal v. McAninch, 513 U.S. 432, 437, 115 S. Ct. 992, 995

(1995) (quoting Kotteakos v. United States, 328 U.S. 750, 764 (1946). But if a

federal court is “in grave doubt about whether a trial error of federal law had

substantial and injurious effect or influence in determining the jury’s verdict, that

error is not harmless.” Smith v. Singletary, 61 F.3d 815, 818-19 (11th Cir. 1995)

(quoting O’Neal, 513 U.S. at 436) (applying Brecht standard). 

The “continuing series” of a section 848 offense is made up of at least three

connected violations of the controlled substances laws. See United States v.

Alvarez-Moreno, 874 F.2d 1402, 1408 (11th Cir. 1989), cert. denied, 494 U.S.

1032 (1990). And in this Circuit, a controlled substance conspiracy conviction

may count as a predicate offense of a CCE charge. See United States v. Rosenthal,

793 F.2d 1214, 1227 (11th Cir. 1986), cert. denied, 480 U.S. 919 (1987). Here,

Ross’s two conspiracy convictions make up two of the three controlled substances

offenses necessary to sustain his CCE conviction. Still, no third, connected
 3

Ross’s criminal trial lasted over six weeks in which more than fifteen witnesses testified for the

Government. See our decision on direct appeal, United States v. Ross, 33 F.3d 1507, 1510-12 (11th

Cir. 1994), for a more complete factual description of the evidence presented at trial. 

10

conviction exists which would complete the continuing series of the CCE. Thus,

we must look to the record to determine whether we have at least “grave doubt”

about whether the absence of a Richardson instruction in this case had “substantial

and injurious effect or influence in determining the jury’s verdict.” Smith, 61 F.3d

at 819. In other words, we must determine whether grave doubt exists on whether

the jury would have unanimously found that Ross committed a third connected

violation of the controlled substances laws if a Richardson instruction had been

given. 

Having conducted a close review of the record, we cannot conclude that the

absence of a Richardson instruction had substantial and injurious effect on the

jury’s verdict in the CCE charge.3

 We have no doubt that the jury would have

unanimously concluded that Ross committed a third connected controlled

substances offense had a Richardson unanimity instruction been given. At trial,

more than fifteen witnesses for the Government testified about Ross’s participation

in hundreds of controlled substance offenses. That the jury found Ross guilty of

the two conspiracy charges evidences that the jury believed the testimony of at

least some subset of the Government’s witnesses, in spite of Ross’s attacks on the
11

witnesses’ credibility. We agree with the district court that it is virtually

inconceivable that the jury would have unanimously agreed that Ross committed

the conspiracy offenses and yet would not have unanimously agreed that Ross

committed at least one specific offense of the hundreds of uncharged controlled

substance offenses in evidence. Thus, because we cannot discern that, in this case,

the Richardson error had a substantial and injurious effect on the jury’s verdict in

the CCE offense, we affirm the district court’s order denying Ross habeas relief. 

AFFIRMED.