Filed: Apr. 18, 1995
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 4-18-1995 United States v Edmonds Precedential or Non-Precedential: Docket 93-1890 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "United States v Edmonds" (1995). 1995 Decisions. Paper 103. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/103 This decision is brought to you for free and open access by the Opinions of the United States
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 4-18-1995 United States v Edmonds Precedential or Non-Precedential: Docket 93-1890 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "United States v Edmonds" (1995). 1995 Decisions. Paper 103. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/103 This decision is brought to you for free and open access by the Opinions of the United States C..
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Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
4-18-1995
United States v Edmonds
Precedential or Non-Precedential:
Docket 93-1890
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"United States v Edmonds" (1995). 1995 Decisions. Paper 103.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/103
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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 Edmonds-
controlled 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, on-
going 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-a-
reasonable-doubt, the question whether the
same verdict of guilty-beyond-a-reasonable-
doubt 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 thirty-
one Federal Express shipments containing illegal drugs sent to
addresses associated with the nationwide cocaine- and heroin-
distribution 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.
