                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-4-2007

USA v. Korey
Precedential or Non-Precedential: Precedential

Docket No. 05-3840




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                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 05-3840


             UNITED STATES OF AMERICA

                              v.

                     JASON KOREY,

                             Appellant


      On Appeal from the United States District Court
         for the Western District of Pennsylvania
                  (D.C. No. 04-cr-00015)
       District Judge: Honorable Gary L. Lancaster


               Argued October 25, 2006
  Before: SMITH, FISHER and COWEN, Circuit Judges.

                  (Filed January 4, 2007)

Karen S. Gerlach
Lisa B. Freeland (Argued)
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
       Attorneys for Appellant

Laura S. Irwin (Argued)
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
       Attorneys for Appellee



                 OPINION OF THE COURT


FISHER, Circuit Judge.
        Jason Korey appeals from his conviction on one count of
using a firearm during and in relation to a conspiracy to
distribute cocaine. He argues (1) that the jury instructions
concerning conspiracy violated his right to due process because
they contained an impermissible mandatory presumption,
(2) that his Sixth Amendment right to be present at his trial was
violated when the judge and the prosecutor had an ex parte
meeting about an improper comment the prosecutor made in the
courtroom, (3) that his right to a fair trial was violated both by
the prosecutor’s apology for foul language that bolstered the
prosecutor’s reputation and by improper statements during
closing argument, and (4) that the District Court erred in
excluding evidence that Korey had been acquitted in an earlier
murder trial – a trial that had been mentioned by a potential
juror during jury selection. For the reasons stated below, we

                                 2
agree that the jury instructions contained an impermissible
mandatory presumption that was not harmless beyond a
reasonable doubt. Consequently, we will vacate Korey’s
conviction.
                               I.
       For a number of years in the late 1990s, Billy Kuhn and
Ray Erfort worked together as cocaine and crack dealers in the
South Hills of Pittsburgh. Jason Korey knew both men, and was
aware that they were drug dealers.
        When Erfort was arrested in 1998, he attempted to
prevent the police from finding his drug stash by asking Kuhn
to collect it. Kuhn gathered 29 ounces of cocaine with a street
value of $30,000. After his release from jail, Erfort asked Kuhn
to return the cocaine, but Kuhn refused.
       According to the Government, Erfort later approached
Korey, who was seventeen years old at the time, and offered him
cocaine in exchange for killing Kuhn. Korey, in turn, obtained
a .22-caliber handgun with a silencer from a friend, ostensibly
to use in the murder. According to the Government, he then
either murdered Kuhn himself on the morning of July 9, 1999,
or had his friend Dave Clemons murder Kuhn for him on that
date. However, after police discovered the body, they charged
Ray Erfort and Milton Morgan with Kuhn’s murder.
       On October 22, 1999, the police, who had an outstanding
warrant for Korey’s arrest based on other circumstances,
received an anonymous telephone tip concerning his
whereabouts. They arrested him based on the outstanding
warrant. At the time of his arrest, Korey had illegal drugs and


                               3
other contraband on his person, and the arresting officers
prepared charges against him based on this contraband.
       Later that day, Korey, while still in police custody,
devised a deal to keep himself out of jail for possession of the
contraband: he offered to provide information about Kuhn’s
murder if they would agree to keep him out of jail on the present
charges. After agreeing to this deal in writing, Korey told the
officers that Erfort had paid him cocaine to kill Kuhn, and that
he had turned to Clemons to carry out the murder for him. He
also told the police where he and Clemons had hidden the
murder weapon. The police recovered the murder weapon from
the location Korey described.
        Following this confession, the murder charges against
Erfort and Morgan were dropped, and Korey was charged.
However, he was acquitted of the murder charge after a state
court trial on November 2, 2000.
       Several years later, Korey was indicted on federal
firearms charges stemming from the incident. He pleaded guilty
to possessing a silencer and possession of a firearm by a drug
user or addict. As to the remaining charges, he was acquitted of
one count of possessing a stolen firearm, and convicted of using
a firearm during and in relation to a conspiracy to distribute
cocaine. It was during the trial for these charges that the alleged
errors Korey complains of occurred.
       Before the trial began, the Government filed a motion in
limine to exclude evidence that Korey had been acquitted of
Kuhn’s murder in state court. The District Court heard
argument on the issue, but reserved judgment. Later, after the
jury venire was sworn, the group of prospective jurors were

                                4
asked whether they knew Jason Korey. One of the prospective
jurors responded in the presence of other jurors that he knew a
Jason Korey who “was allegedly involved in a murder.” This
same juror expressed reluctance to serve on the jury because of
his “prior experience with Mr. Korey, and [because he was]
aware of some previous allegations.” Although this prospective
juror was dismissed for cause, defense counsel1 argued that the
jury panel should be dismissed. The District Court denied this
request and also determined, over Korey’s objection, that it
would not admit evidence of Korey’s state court acquittal.
        During the trial, one of the Government’s police
witnesses had trouble recalling events surrounding his search for
a stolen weapon. When the witness was excused to review his
reports in the hallway, defense counsel requested to see what he
was reviewing. After the District Court indicated that defense
counsel would be able to review a copy for cross examination,
the prosecutor responded with inappropriate language in the
jury’s presence. The District Judge demanded to see the
prosecutor in his chambers. When the attorney for the
Government emerged, he recited the following apology in front
of the jury on the District Court’s request:
              Your Honor, before I begin with the
       testimony of this witness, I have some remarks for
       you, for Mr. Hackney, and for the Jury.
               I have been an [A]ssistant U.S. [A]ttorney
       in this district since 1991, and I have appeared in
       front of you as well as other judges in this Court,


       1
        Appellate counsel was not trial counsel in this matter.

                               5
and you should know that even though this is how
I make my living, it is more than a living to me,
and it is something that’s important to me, and I
take pride in what I do and who I do it for and in
the way I do it.
        I try to try these cases to the best of my
ability, not only for the convenience of the jury,
but with respect for the Court, with respect to the
parties, and with respect to the witnesses and
anybody else who might be involved in the
system.
        That broke down today. I expressed
frustration because of something that was
happening here. I want the Court to know that I
was not expressing irritation at you as the judge,
at Mr. Hackney as opposing counsel – we have
been friends for many years – or as a measure of
disrespect towards this Court or for this jury.
        It was inexcusable, but it was borne in a
moment of frustration in the interruption of the
trial, which is something that I would liked to
have gone more smoothly for the benefit of all
concerned.
       You have known me for many years, I
have been in and out of the courtroom. I hope
you understand that this was not a picture of me at
my best, but it was just a moment of frustration.
I am sincerely sorry for it.



                        6
             If anyone was offended by it, I want you to
       know now that I would not have done it
       otherwise, and I’m extremely sorry.
The following morning, defense counsel objected to this speech
and asked for a mistrial, but was overruled by the District Court.
       As the trial progressed, it became increasingly clear that
the two sides had different views about what constituted a drug
distribution conspiracy. The Government’s theory was that a
jury could find that Korey was guilty of using a firearm during
and in relation to a drug conspiracy because (1) he agreed to
commit a murder in exchange for cocaine, and (2) in order to
avenge a drug rip-off, Korey used the .22-caliber handgun either
by shooting Billy Kuhn or by giving it to Clemons to do so.
Defense counsel, on the other hand, maintained that agreeing to
provide a service – even an unlawful one – in exchange for
cocaine constituted a buyer-seller relationship and not a drug
distribution conspiracy.
       On the final day of the trial, counsel met with the District
Judge to discuss the jury instructions. Over objections by the
defense, the District Court determined that it would instruct the
jury that Korey was, as a matter of law, a member of a drug
distribution conspiracy if he either (1) agreed to accept cocaine
in payment for killing Billy Kuhn, or (2) agreed to murder Billy
Kuhn for Ray Erfort in order to avenge Kuhn’s theft of Erfort’s
cocaine.
       After the jury deliberated, Korey was acquitted of
possessing a stolen firearm and convicted of using a firearm
during and in relation to a drug distribution conspiracy. He now
appeals, asking this Court to order a new trial based on four

                                7
errors: (1) improper jury instructions, (2) a violation of his right
to be present at an ex parte meeting between the prosecutor and
the judge, (3) the prosecutor’s prejudicial comments in his
apology and during closing argument, and (4) the District
Court’s improper exclusion of evidence of his acquittal in the
state court trial for Billy Kuhn’s murder.
                                II.
       Korey’s first complaint is that the jury instructions used
in his trial were erroneous. Specifically, he argues that the
instructions concerning the count for using a firearm during and
in relation to a drug conspiracy contained an erroneous
conclusive presumption. That presumption, he contends,
relieved the Government of its duty to prove all essential
elements of the crime beyond a reasonable doubt. We exercise
plenary review over challenges to the legal standards expressed
in jury instructions. See, e.g., United States v. Zehrbach, 47
F.3d 1252, 1260 (3d Cir. 1995).
       Due process requires that the Government prove every
element of the charged offense beyond a reasonable doubt. In
re Winship, 397 U.S. 358, 364 (1970). Accordingly, jury
instructions that relieve the Government of this burden violate
a defendant’s due process rights. Carella v. California, 491
U.S. 263, 265 (1989). The inquiry is whether the court’s
instruction constituted a mandatory presumption by “directly
foreclos[ing] independent jury consideration of whether the facts
proved established certain elements of the offense with which
[the defendant] was charged.” Id. at 266.
       In this case, Korey was charged with violating 18 U.S.C.
§ 924(c)(1)(A), which punishes “any person who, during and in

                                 8
relation to any crime of violence or drug trafficking crime . . .
uses or carries a firearm.” The drug trafficking crime charged
by the Government in relation to § 924 here is conspiracy to
distribute cocaine under 21 U.S.C. §§ 846 and 841(a)(1).
       It is clear from our prior cases that an important element
of a conspiracy to distribute cocaine is that the parties shared a
common goal. In United States v. Cartwright, 359 F.3d 281 (3d
Cir. 2004), for example, we considered a convicted criminal
defendant’s claim that the guilty verdict against him for
conspiracy to distribute cocaine was not supported by sufficient
evidence. Describing what the evidence must prove, we
explained that “[o]ne of the requisite elements the government
must show in a conspiracy case is that the alleged conspirators
shared a ‘unity of purpose’, the intent to achieve a common
goal, and an agreement to work together toward the goal.” Id.
at 286 (quoting United States v. Wexler, 838 F.2d 88, 90-91 (3d
Cir.1988)); see also United States v. Gibbs, 190 F.3d 188, 197
(3d Cir. 1999) (“To prove a conspiracy, the government must
establish a unity of purpose between the alleged conspirators, an
intent to achieve a common goal, and an agreement to work
together toward that goal.”). In other words, because the
conspiracy charged here is a conspiracy to distribute cocaine,
the Government must prove beyond a reasonable doubt that
Korey shared a goal with his co-conspirators to further the
purpose of distributing cocaine.
        The jury instructions, however, did not require the jury
to find a unity of purpose. Rather, the District Court instructed
jurors that:
             The Government in this case alleges that
       Mr. Korey committed the crime of conspiracy to

                                9
       distribute cocaine and did so in two separate
       ways.
              First, when he agreed to accept drugs from
       Ray Erfort as payment for the murder of Billy
       Kuhn. I instruct you that if you find that the
       defendant agreed to accept cocaine in payment for
       killing Billy Kuhn, that is a conspiracy to
       distribute cocaine.
               And, second, the Government alleges that
       Mr. Korey agreed to murder Billy Kuhn for Ray
       Erfort in order to avenge Kuhn’s theft of Erfort’s
       cocaine. I instruct you that if you find that
       defendant agreed to murder Billy Kuhn for Ray
       Erfort in order to avenge Kuhn’s theft of Erfort’s
       cocaine, that is also conspiracy to distribute
       cocaine.2
Under these instructions, all the jurors had to find was that
Korey agreed to accept cocaine in payment for killing Kuhn.
They did not have to consider whether the Government met its
burden of proof in establishing a unity of purpose. Their verdict
on the conspiracy charge was to be the same whether or not they
believed the government had proven beyond a reasonable doubt


       2
        Although the instructions provide two routes for the jury
to find that Korey was involved in a conspiracy to distribute
cocaine, we are unable to say on which one the jury based its
conviction. Because we find that the first is legally flawed, we
do not discuss the second – though we do note in passing that it
seems to suffer from the same defect as the first.

                               10
that Korey and Erfort shared a common goal to distribute
cocaine. This is certainly at odds with the definition of
conspiracy we expressed in Cartwright. 359 F.3d at 286.
        Defending the instructions, the Government argues that
the statements at issue do not constitute error because other parts
of the instructions discussed the complete definition of a
conspiracy. Indeed, the instructions did provide a general
definition of conspiracy, including an explanation that “[t]here
must be intentional participation by the defendant in the specific
conspiracy charged, with a view to furthering the common
design and purpose of the conspiracy.” However, this complete
and correct statement of the law does not overcome the language
that followed, which amounted to an improper mandatory
presumption. Even if jurors took to heart the general definition
of a conspiracy, they were instructed that if they found “that the
defendant agreed to accept cocaine in payment for killing Billy
Kuhn, that is a conspiracy to distribute cocaine.” Regardless of
what the District Court may have advised elsewhere, this
statement “directly foreclosed independent jury consideration of
whether the facts proved established certain elements of the
offense with which [the defendant] was charged.” Carella, 491
U.S. at 266. Although the jury was told that a conspiracy
required a shared purpose, it was also told that Korey’s actions
amounted to participation in a conspiracy whether or not they
believed that he shared the goal of furthering Erfort’s cocaine
distribution operation. If the jurors believed that he agreed to
accept cocaine in exchange for killing Kuhn, that was the end of
their inquiry.
       The Government also contends that the instructions were
not faulty because by agreeing to accept cocaine as payment for

                                11
murdering Kuhn, Korey was serving an enforcement role in the
conspiracy to distribute cocaine. As an initial matter, there is an
important difference between considerations of the sufficiency
of evidence and the propriety of jury instructions. Even if there
was ample evidence that Korey shared a common goal to
advance Erfort’s scheme to distribute cocaine, the jury
instructions must not command the jury in a manner that
forecloses their consideration of that element of the crime.
Carella, 491 U.S. at 266.
       But assuming the Government is arguing not about the
sufficiency of evidence, but that the jury instructions were
correct as a matter of law because the mandatory presumption
was proper, the law on point simply does not comport with the
Government’s argument. Although we have recognized that an
enforcement role is part of a conspiracy to distribute drugs, we
have always rested on a showing that the enforcer shared the
goal of the overarching drug-distribution conspiracy. In United
States v. Gonzalez, 918 F.2d 1129 (3d Cir. 1991), for example,
we considered, in the context of a challenge to the sufficiency of
evidence supporting a conviction, whether a defendant was part
of a conspiracy to distribute cocaine based on serving as the
“muscle” for the operation. As we explained:
       Considering the placement of [the defendant’s]
       gun, the fact that he was in the kitchen with [the
       co-conspirators] at the time of the arrest and his
       act of blocking the Detective’s way out of the
       apartment, it was reasonable for the jury to
       conclude that [the defendant] was the “muscle” of
       the group and he was there to protect the money
       and the cocaine. In addition, [the defendant] was

                                12
       present the night before the transaction when [the
       co-conspirators] tried to store the cocaine at
       [another’s] apartment, and [one of the co-
       conspirators] “invited” him to be present at the
       apartment again the next day while the transaction
       was taking place in the back bedroom.
Id. at 1136. In other words, based on the circumstances, a jury
could have inferred that the defendant shared the goal of making
sure cocaine was distributed. The defendant’s specific role was
to provide the “muscle” to protect the transactions, but his
overarching goal was clearly the same as other members of the
conspiracy: distribution of cocaine.
        The Government also attempts to rely on the Fifth Circuit
case of United States v. Baptiste, 264 F.3d 578 (5th Cir. 2001).
It claims that Baptiste is analogous to the case before us because
the court found a conspiracy based on the fact that “many of the
appellants responded to the murders of their friends with killing
sprees against the rival group of drug dealers.” Id. at 587.
        However, in reviewing a defendant’s conviction to
determine whether there was sufficient evidence of a drug
conspiracy and whether a shooting had occurred in relation to
that conspiracy, the Fifth Circuit relied heavily on circumstantial
evidence of an agreement related to drug distribution that
reflected a shared goal. Id. at 586-88. The court found a
conspiracy based on the fact that (1) “[t]he police repeatedly
arrested most of the appellants for selling drugs in a small area,”
(2) “[w]itnesses testified that a few of the appellants provided
drugs to the others,” (3) one of the appellants “interrupted a drug
sale to an undercover agent,” and (4) “the defendants shared a
motive to profit from drug sales, and they depended upon each

                                13
other because they warned each other of police activity.” Id. at
587. In the next paragraph, the court mentioned that “[t]here
was considerable other evidence of an agreement,” including the
fact that “many of the appellants responded to the murders of
their friends with killing sprees against the rival group of drug
dealers.” Id. Finally, as to the issue of whether the firearm was
used in relation to the conspiracy, the court explained that the
Government “had to show that these appellants could have used
the weapons to protect or facilitate their drug operation, and that
the weapons were in some way connected with drug
trafficking.” Id. at 588.
        If anything, Baptiste further calls into question Korey’s
jury instructions. The Fifth Circuit did not find a conspiracy
simply because many of the defendants had murdered members
of a rival group of drug dealers; rather that point was added after
finding sufficient evidence of a “shared . . . motive to profit
from drug sales” based on a pattern of behavior. Id. at 587.
       In the present case, however, the jury instructions
commanded the jury to find a conspiracy without looking into
the overarching context to find a shared motive. All the
Government had to prove was that Korey “agreed to accept
cocaine in payment for killing Billy Kuhn.” The jury was not
permitted to consider whether the Government proved a “unity
of purpose” to distribute cocaine. See Gibbs, 190 F.3d at 197.
Under the instructions, Korey could have been found guilty even
if he only agreed to murder Kuhn to obtain drugs for himself
and had no interest in whether Erfort ever made another drug
sale. It is possible that Korey killed Kuhn because of some
enforcement role he was playing in Erfort’s cocaine distribution



                                14
scheme.3 But the instructions did not require the jury to so find
in order to convict him. All the Government had to prove was
that Korey accepted drugs as a payment for murdering Kuhn.
This relieved the Government of its burden to prove beyond a
reasonable doubt that there was a shared goal – a vital aspect of
a conspiracy. As such, the jury instructions here violated
Korey’s due process rights. See Carella, 491 U.S. at 265
(1989).
                               III.
       Not all errors mandate reversal. When the error found is
of a constitutional nature, a court may nonetheless uphold the
conviction if the error was “harmless beyond a reasonable
doubt.” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). In
other words, the Government must show “‘beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.’” Id. (quoting Chapman v. California, 386
U.S. 18, 24 (1967)). As the Supreme Court explained, “[t]he
inquiry . . . is not whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was
surely unattributable to the error.” Id.




       3
         We do not mean to suggest with our holding in this case
that a hit man hired by a drug distribution conspiracy cannot be
a part of the conspiracy. Rather, we simply hold that the jury
instructions in this case did not properly instruct the jury about
all of the elements the Government must prove to establish
participation in such a conspiracy.

                               15
      In Whitney v. Horn, 280 F.3d 240 (3d Cir. 2002), we
reviewed the propriety of the jury instructions used to find a
defendant guilty of first degree murder. The instruction at issue
provided that:
       Thus, you cannot find the defendant guilty of first
       degree murder unless you are satisfied beyond a
       reasonable doubt that the defendant was so
       intoxicated at the time that he was incapable of
       judging his acts and their consequences or
       incapable of forming a willful, deliberate and
       premeditated design to kill.
Id. at 254-55. In fact, this was an incorrect statement of the law:
it should have read “was not so intoxicated.” While holding that
this jury instruction as to the defendant’s state of mind was in
error, we observed that “[a] verdict may still stand, despite
erroneous jury instructions, where the predicate facts
‘conclusively establish intent, so that no rational jury could find
that the defendant committed the relevant criminal act but did
not intend to cause the injury.’” Id. at 260 (quoting Rose v.
Clark, 478 U.S. 570, 580-81 (1986)). We went on to determine
that “[f]aced with th[e] evidence we do not understand how any
reasonable jury could have had any doubt about whether
Whitney was too inebriated to form the intent to kill. The
evidence of Whitney’s mental state was nothing short of
overwhelming.” Id. at 261 (emphasis in original). Not only was
there strong circumstantial evidence of his intent based on the
number and severity of the wounds to the victim, but the
defendant had announced his intent to kill. Id. at 259; see also
United States v. Neder, 527 U.S. 1, 17 (1999) (finding that a
failure to instruct the jury as to an element of the charged crime

                                16
was harmless where evidence concerning the omitted element
was overwhelming and uncontested).
        In contrast, we are unable to say that “the guilty verdict
actually rendered in this trial was surely unattributable to the
error.” Sullivan, 508 U.S. at 279. The only evidence presented
by the Government concerning Korey’s participation in the
cocaine distribution conspiracy is that, until Erfort’s arrest in
1998, Kuhn and Erfort had worked together for years as cocaine
and crack dealers, that Korey knew both men and knew they
were drug dealers, and that he considered Kuhn a friend. There
was no evidence that Korey shared the goal of cocaine
distribution at all, or that his involvement with Kuhn and Erfort
was anything other than personal. Even if we were to determine
that this evidence, coupled with Korey’s agreement to accept
cocaine in payment for killing Billy Kuhn, is sufficient to find
that Korey was part of a drug distribution conspiracy, it is far
from overwhelming. We cannot say beyond a reasonable doubt
that the error did not contribute to the verdict rendered. Thus,
the error was not harmless.
                               IV.
       Because we have determined that Korey’s conviction
must be vacated on the basis of the jury instructions, it is
unnecessary for us to reach the remainder of his claims.
However, we do wish to briefly comment on the problematic
apology speech that the District Court allowed the prosecutor to
deliver in the presence of the jury.
       In essence, the Court gave the prosecutor an opportunity
to bolster his reputation through personal contact with the jury
that was not similarly afforded to defense counsel. The resulting

                               17
comments inappropriately injected the character and experience
of the attorney into the trial in a manner that has worried us in
the past. See United States v. Schartner, 426 F.2d 470, 478 (3d
Cir. 1970) (finding remarks that “invite the jury to rely on the
Government attorney’s experience in prosecuting criminals
generally and on the Government attorney’s ‘sincerity’”
constitute reversible error). In the future, district courts would
be well advised to avoid such issues by restricting attorneys to
a simple “I’m sorry” – even one that is delivered after the
verdict is rendered – when responding to questionable conduct.
                               V.
      For the foregoing reasons, we will vacate Jason Korey’s
conviction under 18 U.S.C. § 924, and remand for new
proceedings consistent with this opinion.




United States v. Korey, No. 05-3840


SMITH, Circuit Judge, concurring.
       As the majority ably explains, the charge to the jury was
deficient because it failed to instruct on the “unity of purpose”
element required for the predicate drug trafficking offense. See
United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999)
(explaining that a drug conspiracy requires that the “government
must establish a unity of purpose between the alleged

                               18
conspirators, an intent to achieve a common goal, and an
agreement to work together toward that goal”). Like the
majority, I conclude that this deficiency was not harmless and
requires that Korey’s conviction be vacated. I write separately,
however, because my analysis, based on the Supreme Court’s
decision in United States v. Neder, 537 U.S. 1 (1999), diverges
from that of the majority.
        In Neder, the Supreme Court determined that the
omission of an essential element from a jury charge is subject to
harmless error review. Id. at 15. Because there was
overwhelming and undisputed evidence regarding the omitted
element, the Court concluded that the deficient jury instruction
was harmless error. Id. at 18. The Court instructed that a
reviewing court must “conduct a thorough examination of the
record. If at the end of that examination, the court cannot
conclude beyond a reasonable doubt that the jury verdict would
have been the same absent the error, for example, where the
defendant contested the omitted element and raised evidence
sufficient to support a contrary finding - it should not find the
error harmless.” Id. at 19.
       In my view, Neder teaches that the focus in deciding if
the omission of an instruction on an element of an offense is
harmless is on whether there is any evidence to establish the
omitted element. If there is no evidence on the omitted element,
the deficiency in the instruction is not harmless because a jury
could not have found that the prosecution proved this element
beyond a reasonable doubt. Likewise, if there is evidence on the


                               19
omitted element and it is contested, the deficiency in the
instruction is not harmless because the jury would need to
deliberate on the evidence and decide whether the element had
been proved beyond a reasonable doubt. However, when there
is evidence on the omitted element that is not disputed, then the
deficient instruction is harmless because “answering the
question of whether the jury verdict would have been the same
absent the error does not fundamentally undermine the purposes
of the jury trial guarantee.” Id. at 19.
       Applying Neder to this case compels the conclusion that
the deficient jury instruction was not harmless error because, as
the majority correctly points out, “[t]here was no evidence that
Korey shared the goal of cocaine distribution at all, or that his
involvement with Kuhn and Erfort was anything other than
personal.” Slip op. at 17.
       Having concluded that there was no evidence on the
omitted “unity of purpose” element, the analysis should be
complete. The majority, however, goes on to reason that
“[e]ven if we were to determine that this evidence . . . is
sufficient to find that Korey was part of a drug distribution
conspiracy, [the error is not harmless because the evidence] is
far from overwhelming.” Slip op. at 17. In my view, this
additional step is unnecessary and runs afoul of Neder. If the
evidence offered at trial was sufficient to demonstrate the unity
of purpose element and was undisputed, as the majority states,
Neder instructs that the error was harmless. 537 U.S. at 18
(instructing that where there is uncontroverted evidence on the


                               20
omitted element the error is harmless). For this reason, I cannot
join this aspect of the majority’s analysis and consider it dictum.




                                21
