                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                              NOT PRECEDENTIAL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
