United States v. Gaddy , 174 F. App'x 123 ( 2006 )


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  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    4-5-2006
    USA v. Gaddy
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 04-3694
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 04-3694
    UNITED STATES OF AMERICA
    v.
    ALLEN GADDY
    a/k/a DOUGLAS GADDY
    Allen Gaddy,
    Appellant
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    D.C. Criminal No. 03-cr-00710
    (District Judge: Honorable James T. Giles)
    Argued February 13, 2006
    Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges
    (Filed April 5, 2006)
    ROBERT EPSTEIN, ESQUIRE (ARGUED)
    Defender Association of Philadelphia
    Federal Court Division
    The Curtis Center, Suite 540 West
    601 Walnut Street
    Philadelphia, Pennsylvania 19106
    Attorney for Appellant
    DENISE S. WOLF, ESQUIRE (ARGUED)
    JOHN N. JOSEPH, ESQUIRE
    Office of United States Attorney
    615 Chestnut Street, Suite 1250
    Philadelphia, Pennsylvania 19106
    Attorneys for Appellee
    OPINION OF THE COURT
    SCIRICA, Chief Judge.
    Allen Gaddy appeals his judgment of conviction, claiming the District Court
    committed plain error by failing to issue a specific unanimity charge to the jury. Gaddy
    also appeals his sentence in light of United States v. Booker, 
    543 U.S. 220
    (2005). We
    will affirm the judgment of conviction, but will vacate the judgment of sentence and
    remand for reconsideration under Booker. See United States v. Davis, 
    407 F.3d 162
    (3d
    Cir. 2005).
    I.
    Because we write only for the benefit of the parties, an abbreviated recitation of
    the facts will suffice. Gaddy was arrested after a Philadelphia police officer observed
    what he believed was a hand to hand sale of narcotics from Gaddy to another individual,
    Glenwood Miller. Police officers followed Miller in his car, stopped him, and confiscated
    several packets containing 75 milligrams of crack cocaine each. After obtaining a
    warrant, police officers searched the house Gaddy had entered while he was with Miller,
    confiscating 23 grams of crack cocaine and a firearm.
    2
    Gaddy was indicted on four counts: 1) possession with intent to distribute more
    than five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (B)(1)(B), 2)
    possession with intent to distribute more than five grams of crack cocaine within 1,000
    feet of a school in violation of 21 U.S.C. § 860(a), 3) possession of a firearm in
    furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and 4)
    possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
    In its final jury instructions, the District Court said:
    . . . . The government claims that the defendant did pass on to Mr.
    Miller illegal drugs. Well, there—if that’s so, then there was
    possession—there was, in fact, distribution. So there was possession with
    intent to distribute any amount that was actually distributed. There’s a
    claim that there was an amount of drugs in the house, which was in excess
    of the amount that would be expected for personal use and, in fact, the
    government claims that that was the source of the distribution that occurred
    with Mr. Miller.
    That’s what’s going on with Count One. You don’t have to
    find—the government doesn’t have to prove both, distribution—in fact, Mr.
    Miller had possession, upstairs, the house, they can prove either one of
    those situations, and if it did, that would satisfy the proof with respect—the
    element with respect to knowing and intentional possession with intent to
    distribute. . . .
    So, you’re called upon to be individual fact finders, individual judges of the
    facts to make your own decision trying to agree unanimously. Unanimous
    means all agreeing. So, you’re expected to hold to any honest opinion and
    not return a verdict simply to satisfied [sic] fellow jurors or just to return a
    verdict.
    Gaddy did not object to the instruction at trial.
    3
    Gaddy was convicted on all charges and sentenced to a term of imprisonment of
    108 months on counts 1, 2, and 4, 60 months on count 3, five years of supervised release,
    a $500 fine, and a special assessment of $300.1
    II.
    A.
    In the absence of an objection to a jury instruction, we review for plain error.
    United States v. Dobson, 
    419 F.3d 231
    , 236 (3d Cir. 2005) (citing Fed. R. Crim. P. 52(b)).
    Under the plain error standard, an appellate court may correct an error not raised at trial if
    it finds 1) an error, 2) that is plain, 3) that affects substantial rights, and 4) if, in its
    discretion, “the error seriously affects the fairness, integrity, or public reputation of [the]
    judicial proceedings.” 
    Id. at 236
    (citing Johnson v. United States, 
    520 U.S. 461
    , 467
    (1997)).
    B.
    Gaddy’s claim of plain error centers on the failure to give the jurors a specific
    unanimity charge. We have held that, “[i]n the routine case, a general unanimity
    instruction will ensure that the jury is unanimous on the factual basis for a conviction,
    even where an indictment alleges numerous factual bases for criminal liability.” United
    States v. Beros, 
    833 F.2d 455
    , 460 (3d Cir. 1987). But “where the complexity of the case,
    or other factors, creates the potential that the jury will be confused,” the general rule will
    1
    Gaddy appeals the judgment of conviction only as to the first three counts.
    4
    not apply. 
    Id. In such
    complex cases, a rule of specific unanimity is required. Id.; cf.
    United States v. Ferris, 
    719 F.2d 1405
    , 1407 (9th Cir. 1983) (“Unanimity . . . means more
    than a conclusory agreement that the defendant has violated the statute in question; there
    is a requirement of substantial agreement as to the principal factual elements underlying a
    specified offense. We would consider it appropriate for the trial court to instruct the jury
    to this effect. In the routine case, however, failure to adopt this formulation is not
    error.”).
    Adopting the analysis of United States v. Gipson, 
    553 F.2d 453
    (5th Cir. 1977), we
    have noted “the unanimity rule . . . requires jurors to be in substantial agreement as to just
    what a defendant did as a step preliminary to determining whether the defendant is guilty
    of the crime charged.” 
    Beros, 833 F.2d at 460
    (quoting 
    Gipson, 553 F.2d at 457-58
    ). We
    extended this rule in Beros, focusing “not upon an instruction regarding unanimity on the
    charged theories, but rather upon an instruction regarding unanimity on the acts which are
    predicate to a finding on those theories.” 
    Id. There, we
    focused on “the principal
    problem” in those cases where a specific unanimity charge might be required: “the
    possibility that the jury was confused or mistaken regarding its obligation.” 
    Id. at 461.
    Noting the task was whether “the potential for juror instruction existed,” and rejecting the
    requirement of being satisfied that “the jury was in fact confused,” we adopted the
    following rule:
    When it appears . . . that there is a genuine possibility of jury
    confusion or that a conviction may occur as the result of different jurors
    5
    concluding that the defendant committed different acts, the general
    unanimity instruction does not suffice.
    To correct any potential confusion in such a case, the trial judge
    must augment the general instruction to ensure the jury understands its duty
    to unanimously agree to a particular set of facts.
    
    Id. (citing United
    States v. Echeverry, 
    698 F.2d 375
    , modified, 
    719 F.2d 974
    , 975 (9th Cir.
    1983)). We noted the government “cannot rely on a composite theory of guilt,” and that
    allowing the jury to convict even though it “was not unanimous as to the defendant’s
    specific action is no more justifiable than is a conviction by a jury that is not unanimous
    on the specific count.” 
    Id. at 462.
    Although there is no clear line demarcating the complex case requiring a specific
    unanimity instruction from the routine case requiring no more than a general unanimity
    instruction, our precedents provide enough guidance to convince us the current case does
    not require a specific unanimity instruction. In Beros, two of the sixteen counts in the
    indictment “each allege[d] four separate and distinct theories of criminal activity,” and
    each count “enumerate[d] several acts upon which a finding of guilt could be predicated.”
    
    Id. at 461.
    Holding “the permutations that can support a valid conviction are varied and
    several,” the Beros court concluded “the circumstances of this case . . . warranted more
    specific instructions regarding jury unanimity.” 
    Id. at 462.
    Application of the “specific unanimity” standard is case specific. For example, we
    have consistently required specific unanimity instructions for charges under the federal
    Continuing Criminal Enterprise (CCE) statute, 21 U.S.C. § 848. Section 848 “requires
    unanimous agreement as to the identity of each of the three related offenses comprising
    6
    the continuing series.” United States v. Edmonds, 
    80 F.3d 810
    , 822 (3d Cir. 1996) (en
    banc); see also United States v. Russell, 
    134 F.3d 171
    (3d Cir. 1998). In Edmonds, we
    said, “Following Schad [v. Arizona,] we view the CCE unanimity question principally in
    terms of legislative intent.” 
    Edmonds, 80 F.3d at 815
    . In the absence of clear
    Congressional intent, we held that, “guided by historical tradition, constitutional
    considerations, and the rule of lenity . . . a statute combining formerly separate
    crimes—crimes that may take place at different times and at different places—should
    generally be read to require unanimity as to each predicate offense.” 
    Id. But see
    Russell,
    134 F.3d at 177 
    (emphasizing our holding in Edmonds was grounded in the Sixth
    Amendment right to a unanimous jury verdict, not in the specific statute). But the unique
    considerations of the federal CCE statute are not analogous to the drug possession statutes
    under which Gaddy was convicted.
    We have found general unanimity instructions sufficient in cases where multiple
    offenses for the same criminal acts are alleged. In United States v. Jackson, we held,
    under the CCE statute, an instruction that jurors must specifically agree as to the identity
    of the particular individuals supervised by the defendant was not required. 
    879 F.2d 85
    (3d Cir. 1989). Two cases supported our proposition. In one, a specific unanimity charge
    was not required even though the court instructed that the jury could find guilt under one
    of the counts based on any one of three conceptually distinct theories. United States v.
    Schiff, 
    801 F.2d 108
    (2d Cir. 1986). In another, a specific unanimity instruction was not
    7
    required on a drug possession charge when there were numerous separate moments that
    could constitute “possession.” United States v. Ferris, 
    719 F.2d 1405
    (9th Cir. 1983).
    This case resembles Jackson, Schiff, and Ferris rather than Beros, Edmonds, and
    Russell. Unlike Beros, Edmonds, and Russell, the counts at issue are not essentially
    different kinds of criminal liability—each requires possession with an intent to distribute.
    Second, unlike Beros, the underlying theories for the criminal liability are not factually
    complex—either Gaddy distributed crack cocaine to another individual outside, or he
    possessed crack cocaine inside his house and intended to distribute it. Like Jackson,
    Schiff, and Ferris—and notwithstanding the rigorous defense provided by Gaddy’s
    counsel—the case is not factually complex and the criminal liability at issue is clear. We
    see nothing that leads us to believe the jury could have been confused as to the
    instructions or the theories of criminal liability.2
    2
    Gaddy points to two other cases—United States v. Holley, 
    942 F.2d 916
    (5th Cir.
    1991) cert. denied, 
    510 U.S. 821
    (1993), and United States v. Theodoropoulos, 
    866 F.2d 587
    (3d Cir. 1989)—to support the proposition that it would be impermissible for the jury
    to disagree on which of the relevant theories for conviction apply, and agree to convict
    under the charged offenses.
    In United States v. Holley, the Court of Appeals for the Fifth Circuit determined a
    specific unanimity instruction was warranted where the defendant, indicted under the
    federal perjury statute, could have been liable for any one of multiple false statements
    under separate perjury counts. 
    Holley, 942 F.2d at 927
    . Although Holley does provide
    support for Gaddy’s argument, our own precedent in Jackson points us in the opposite
    direction.
    In United States v. Theodoropoulos, we noted it was proper to give a specific
    unanimity instruction where the prosecution presented four different theories for gun
    possession under 18 U.S.C. § 
    924(c). 866 F.2d at 957
    . We vacated the conviction
    because it was not evident from the jury’s verdict which of the firearms they had
    (continued...)
    8
    Moreover, Beros reviewed the jury instruction under an abuse of discretion
    standard. We distinguished Beros from those cases in which, under plain error review, a
    general unanimity instruction did not create error sufficient to warrant a new trial, even
    though the cases were arguably more complex. 
    Beros, 833 F.3d at 462
    . Our decision in
    Jackson was also under an abuse of discretion standard—and there, unlike Beros, we saw
    no need for a new trial in the absence of a specific unanimity instruction. Thus, even if
    the facts here were as complex as those in Beros, our analysis would necessarily be
    different under the plain error standard.3
    C.
    Even assuming error, plain error requires three further elements be met. Any error
    under the standard must be “plain”—that is, “clear” or “obvious.” Johnson v. United
    States, 
    520 U.S. 461
    , 467 (1997); 
    Dobson, 419 F.3d at 239
    . “At a minimum . . . the error
    must be plain ‘under current law.’” 
    Johnson, 520 U.S. at 467
    (quoting United States v.
    2
    (...continued)
    determined was actually used. 
    Id. at 598.
    However, our decision rested on a close
    analysis of Congress’s intent in requiring a firearm’s use or possession be “in relation to”
    the concomitant crime—an issue not present here.
    3
    Gaddy also argues, citing United States v. Echeverri, 
    854 F.2d 638
    , 643 (3d Cir.
    1988), that “a jury instruction can constitute the ‘other factor’ which may give rise to jury
    confusion and the need for a specific unanimity charge.” Reply Br. at 2 n.1. However,
    Echeverri is distinguishable. There, we noted the District Court’s “careful unanimity
    instruction regarding the predicate acts” for a RICO count would create the likelihood
    that the jury would have “inferred [that specific unanimity was not needed] from the
    absense” of a similar instruction as to a separate charge for the CCE count. 
    Id. Because there
    was no separate charge given for a separate count here, the concerns we expressed
    in Echeverri do not apply.
    9
    Olano, 
    507 U.S. 725
    , 734 (1993)). Any error, and we do not suggest there was error, was
    obvious under the law at the time of trial: our rule in Beros is long-standing, and was
    known to the District Court before the trial began.
    But no substantial right would be affected. Standard plain error analysis in
    criminal cases requires us to determine whether the error was “prejudicial.” 
    Dobson, 419 F.3d at 239
    (citing 
    Olano, 507 U.S. at 734
    ). “We must determine whether [the defendant]
    has carried her burden to show that there is a ‘reasonable likelihood’ that the jury
    prejudiced her by applying the challenged instruction in an impermissible manner.” 
    Id. at 239-40.
    We see no “reasonable likelihood” of jury prejudice. The jury instructions here
    made clear the burden placed on the prosecution to “prove either one” of the two theories
    proffered—effectively giving an implicit specific unanimity instruction.4 Coupled with
    the District Court’s charge that “[t]he government’s burden of proof is that of proof
    beyond a reasonable doubt,” J.A. at 498-99, the jury would likely have understood that
    the government had the burden of proof as to each of the theories presented in court.
    Prejudice was thus not reasonably likely.5
    4
    We emphasize that we are here assuming, without deciding, that the lack of a specific
    unanimity instruction constituted error. We do this only to reach our holding in the
    alternative. As Section II.B. above makes plain, however, we do not think a specific
    unanimity instruction was required in this case.
    5
    In United States v. Russell, we indicated substantial rights might be affected under a
    plain error analysis if a constitutional right has been violated through the challenged jury
    
    instruction. 134 F.3d at 180
    (“We have no hesitation in concluding that the error did
    affect a substantial right of Mr. Russell—his constitutional right to a unanimous jury
    (continued...)
    10
    Finally, any possible error did not “seriously affect[ ] the fairness, integrity, or
    public reputation of judicial proceedings.” 
    Johnson, 520 U.S. at 469-70
    (quoting 
    Olano, 507 U.S. at 160
    ). In Johnson, the Supreme Court found no reversible error where the
    evidence supporting one of the elements was “overwhelming.” 
    Id. at 470.
    Although
    Gaddy claims counsel pursued a “vigorous defense” at trial, he presents no argument as to
    the nature of the evidence presented. Further, the record reveals substantial evidence to
    convict Gaddy, regardless of any possible error.
    III.
    Gaddy also asks for a remand for resentencing in light of United States v. Booker,
    
    543 U.S. 220
    (2005). The government agrees.6 In United States v. Davis, we stated that,
    except in limited circumstances, “defendants sentenced under the previously mandatory
    regime whose sentences are being challenged on direct appeal may be able to demonstrate
    5
    (...continued)
    verdict on each element of the CCE charge.”). However, even if we were to acknowledge
    that Gaddy’s right to a unanimous jury verdict was compromised by the instruction, we
    cannot go so far as to conclude his rights were violated unless we also say it was
    “reasonably likely” that the jury acted impermissibly on the District Court’s charge.
    Because the District Court’s instruction did not create this likelihood, we cannot conclude
    the mere failure to give a specific unanimity instruction violated Gaddy’s constitutional
    rights.
    6
    In a letter brief, the United States requested that we hold this case curia advisari vult
    (c.a.v.) pending the Supreme Court’s decision in Rodriguez v. United States, 
    398 F.3d 1291
    (2005). But certiorari was denied in that case on June 20, 2005. 
    125 S. Ct. 2935
    (2005).
    11
    plain error and prejudice,” and we will remand such cases for resentencing. See United
    States v. Davis, 
    407 F.3d 162
    , 165 (3d Cir. 2005).
    IV.
    We will affirm the judgment of conviction. We will vacate the judgment of
    sentence and remand for resentencing in light of United States v. Booker.
    12