United States v. Theodore Edmonds

80 F.3d 810, 1996 U.S. App. LEXIS 6322, 1996 WL 155187

• Court: Court of Appeals for the Third Circuit
• Decided: April 4, 1996
• Docket: 93-1890
• Status: Published

Opinions

OPINION OF THE COURT

BECKER, Circuit Judge.

A federal jury convicted appellant Theodore Edmonds of violating the Continuing Criminal Enterprise statute (“CCE”), 21 U.S.C. § 848, which makes it a crime to organize, supervise, or manage five or more persons in a “continuing series of violations” of the federal narcotics laws. Edmonds argues that the district court erred in failing to instruct the jurors that, in order to convict, they must agree unanimously on which violations — of the eight alleged — constituted the three related violations necessary to establish a “continuing series.”

In United States v. Echeverri, 854 F.2d 638 (3d Cir.1988), we held that the CCE statute requires jury unanimity as to the identity of each of the three related violations comprising the continuing series. This in banc¹ rehearing gives us the opportunity to reconsider Echeverri. The question of the degree of jury unanimity required by the CCE statute is a difficult one, and other courts of appeals have disagreed with Echeverri’s resolution, see, e.g., United States v. Canino, 949 F.2d 928 (7th Cir.1991), cert. denied, 504 U.S. 910, 112 S.Ct. 1940, 118 L.Ed.2d 546, and cert. denied sub nom. Flynn v. United States, 503 U.S. 996, 112 S.Ct. 1701, 118 L.Ed.2d 410 (1992). Nevertheless, guided by historical tradition in criminal jurisprudence, constitutional considerations, and the rule of lenity, we reaffirm Echeverri and hold that the CCE statute requires juror unanimity as to the identity of the related violations comprising the continuing series.

In view of this holding, we must also decide whether the district court’s failure to give the proper unanimity instruction was harmless error. This task requires us to examine the scope of Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), which held that an erroneous reasonable doubt instruction cannot be harmless because such error undermines an essential premise of harmless error analysis — the existence of an actual verdict of guilty beyond a reasonable doubt. Id. at 280-81, 113 S.Ct. at 2082.

We conclude that Sullivan does not preclude harmless error analysis in this case. Unlike the verdict in Sullivan, in which an erroneous reasonable doubt instruction undermined all of the jury’s findings, the jury in this case delivered valid findings on essentially all of the elements of the offense by convicting Edmonds of every violation alleged to constitute the continuing series. These convictions do not themselves show unanimous agreement that the same three violations were sufficiently related to each other to constitute a continuing series. However, the evidence that the jury must have credited to find Edmonds guilty of the predicate violations unequivocally established that all charged violations were related. In such circumstances, no rational jury could unanimously find Edmonds guilty of the predicate offenses without unanimously finding that the offenses were related to each other. We thus affirm Edmonds’ conviction.

I. Facts and Procedural History

The facts of this case are fully set out in the earlier panel opinion, see United States v. Edmonds, 52 F.3d 1236, 1241 (3d Cir.), vacated in part, 52 F.3d 1251 (3d Cir.1995); thus, we provide only a brief summary. The evidence at trial showed that Edmonds led a nationwide cocaine and heroin distribution network. The organization was based in Los Angeles, California and sold drugs to distributors for resale in various locales, including Chester and Philadelphia, Pennsylvania; Wilmington, Delaware; Wilmington, North Carolina; Detroit, Michigan; New Orleans, Louisiana; and Toledo, Ohio.

A federal grand jury returned a twenty-seven count indictment against Edmonds and eleven other people. The indictment charged Edmonds with conspiracy to distribute cocaine and heroin in violation of 21 U.S.C. § 846; distribution of heroin and aiding and abetting distribution in violation of 21 U.S.C. § 841(a)(1); two counts of distribution of cocaine and aiding and abetting distribution in violation of 21 U.S.C. § 841(a)(1); three counts of unlawful use of a communications facility in violation of 21 U.S.C. § 843(b); and four counts of money laundering in violation of 18 U.S.C. § 1956(a)(l)(A)(i) & (2). In addition, the indictment charged Edmonds with engaging in a CCE in violation of 21 U.S.C. § 848. The CCE count identified eight predicate offenses: the conspiracy count, the three distribution counts, the three communications facility counts, and one of the money laundering counts.²

At trial, the district court gave the following instruction concerning the CCE charge:

So the Government has to prove that he [Edmonds] committed a felony in violation of narcotics laws; i.e.[,] that in some way he was causing or attempting to cause the distribution of cocaine and heroin as charged in Count 1 of the indictment or in other counts charged in the indictment.

The Government has to prove secondly that such violation was part of a continuing series of related violations of the federal narcotics laws. A continuing series of violations requires proof beyond a reasonable doubt that three or more violations of the laws occurred and that they, those three or more, were related to each other.

The court rejected Edmonds’s request that it explain to the jurors that they must unanimously agree on which three related violations occurred. Instead, the court gave only general unanimity instructions. (“You are asked to deliberate with a view towards reaching a unanimous decision with respect to each count and each defendant charged here in this indictment”). The jury convicted Edmonds of all counts.

A panel of this Court reversed Edmonds’s CCE conviction. The panel’s decision was based on United States v. Echeverri, which held that a district court’s refusal to give a specific unanimity instruction in a CCE trial is reversible error. See Echeverri, 854 F.2d at 643. The panel found Echeverri controlling despite a significant difference between the two cases. In Echeverri, the government had introduced evidence of a plethora of drug-related activity to establish the continuing series, and, because the jury did not hand down verdicts on the separate predicate offenses, it was unclear whether the jury agreed that the same three predicate violations occurred. See id. at 642-43. In contrast, Edmonds’s jury convicted him of each of the narcotics violations alleged to constitute the continuing series, and hence it must have unanimously agreed that Edmonds committed every violation in the alleged series. Nevertheless, the panel found Echeverri controlling because the jury may not have agreed on which three offenses were related to each other. For example, six jurors may have felt that violations A,B, and C (but no others) were related, and the other six jurors may have concluded that violations D, E, and F (but no others) were related. See Edmonds, 52 F.3d at 1241.

The panel then held that harmless error analysis was inapplicable. Although the evidence that the jury must have believed to find Edmonds guilty of the predicate offenses also established a single ongoing scheme, the panel reasoned that Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), barred it from engaging in harmless error analysis. Sullivan held that a constitutionally deficient reasonable doubt instruction cannot be harmless because the error precludes the existence of a guilty verdict upon which harmless error scrutiny could operate. Id. at 280-81, 113 S.Ct. at 2082.³ Analogizing lack of jury unanimity to an unconstitutional definition of reasonable doubt, the panel held that “there has been no actual jury finding of guilty on the CCE charge,” and thus that it could not rule that the error was harmless. Edmonds, 52 F.3d at 1244.

The government petitioned for rehearing, arguing that Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), and United States v. Jackson, 879 F.2d 85 (3d Cir.1989), have undermined Echevem’s specific unanimity holding; the government also attacked the panel’s harmless error analysis. We granted the petition and reheard the case in banc.

II. The CCE Statute & Specific Juror Unanimity

To convict a defendant under the CCE statute, the government must prove: (1) that the defendant committed a felony violation of a provision of United States Code Title 21, Chapter 13, subchapter I or II (various drug offenses); (2) that this violation was part of a “continuing series” of violations of these sub-chapters; (3) that the defendant, in committing the continuing series of violations, acted as an organizer, supervisor, or manager of five or more other persons; and (4) that the defendant obtained “substantial income or resources” from such activities.⁴

Only the second requirement — that the defendant committed a felony as part of a continuing series of violations — is at issue in this appeal. We have held, as have most courts of appeals, that a “series” consists of at least three predicate violations. See Echeverri, 854 F.2d at 643; see also, e.g., United States v. Hernandez-Escarsega, 886 F.2d 1560, 1570 (9th Cir.1989), cert. denied, 497 U.S. 1003, 110 S.Ct. 3237, 111 L.Ed.2d 748 (1990); United States v. Young, 745 F.2d 733, 747 (2d Cir.1984), cert. denied sub nom. Myers v. United States, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). But see United States v. Baker, 905 F.2d 1100, 1102-05 (7th Cir.1990) (requiring only two predicate offenses), cert. denied, 498 U.S. 876, 111 S.Ct. 206, 112 L.Ed.2d 167, and cert. denied sub nom. Manns v. United States, 498 U.S. 904, 111 S.Ct. 270, 112 L.Ed.2d 226 (1990). Furthermore, because the series must be “continuing,” the three predicate offenses must be related to each other in some way. See, e.g., United States v. Jones, 801 F.2d 304, 307 (8th Cir.1986); Baker, 905 F.2d at 1104.

As we have explained, the critical question is whether the jury need unanimously agree only that the defendant committed three related violations or whether, instead, the jury must unanimously agree that the same three related violations occurred. Although it is well settled that a defendant in a federal criminal trial has a constitutional right to a unanimous verdict, see, e.g., Andres v. United States, 333 U.S. 740, 748-49, 68 S.Ct. 880, 884-85, 92 L.Ed. 1055 (1948); Patton v. United States, 281 U.S. 276, 288-90, 50 S.Ct. 253, 254-55, 74 L.Ed. 854 (1930); see also Fed.R.Crim.P. 31(a), the level of factual specificity on which the jury must be unanimous is far from clear. In Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), a plurality of the Supreme Court shed some light on this question. Schad indicates that the scope of jury unanimity is primarily a question of legislative intent, although due process limits the legislature’s definitional power.

Following Schad, we view the CCE unanimity question principally in terms of congressional intent. We recognize that, on its face, the CCE statute gives little indication of Congress’s intent with respect to jury unanimity. Nevertheless, guided by historical tradition, constitutional considerations, and the rule of lenity, we conclude that 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. Here, because there is no indication of intent to the contrary, we hold that in order to convict a defendant under the CCE statute, the jury must unanimously agree that the same three related predicate offenses occurred.

A. The Analytic Framework

In Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), a four-justice plurality concluded that when a statute enumerates alternative routes for its violation, whether jurors must be unanimous with respect to a particular route depends on two questions. First, did the legislature intend the different routes to establish separate “offenses,” for which unanimity is required as to every fact constituting the offense, or different “means” of violating a single offense, for which unanimity is not required? Second, if the legislature intended the alternative routes to be mere means of violating a single statute, is the statute’s definition of the crime unconstitutional under the Due Process Clause?

Edward Harold Schad was convicted under an Arizona statute that defined first degree murder as “murder which is ... wilful, deliberate or premeditated ... or which is committed ... in the perpetration of, or attempt to perpetrate, ... robbery.” Id. at 628, 111 S.Ct. at 2495 (quoting Ariz.Rev.Stat. § 13-452 (Supp.1973)). At trial, the prosecutor advanced theories of both premeditated murder and felony murder, and the trial court gave only a general unanimity instruction (i.e., that all jurors must agree on whether the defendant is guilty or not guilty). On appeal, Schad argued that the state trial court had erred in not requiring the jury to agree on a single theory of first degree murder. The Arizona Supreme Court affirmed Schad’s conviction, stating, “In Arizona, first degree murder is only one crime regardless whether it occurs as a premeditated murder or a felony murder.... [T]he defendant is not entitled to a unanimous verdict on the manner in which the act was committed.” Id. at 629, 111 S.Ct. at 2495-96 (plurality opinion) (quoting State v. Schad, 163 Ariz. 411, 788 P.2d 1162, 1168 (1989)).

A divided United States Supreme Court affirmed the Arizona Supreme Court’s judgment. In an opinion joined by Chief Justice Rehnquist and Justices O’Connor and Kennedy, Justice Souter analyzed the problem in terms of due process limits on the legislature’s power to define criminal conduct, and not as a jury unanimity issue. Id. at 630-31, 111 S.Ct. at 2496-97 (plurality opinion).⁵ Because the Arizona Supreme Court, the final interpreter of Arizona law, had held that felony murder and premeditation were merely different “means” of committing a single “offense,” the intent of the Arizona legislature had been conclusively established, and Schad’s jury was unanimous on all the facts necessary to establish the offense. See Schad, 501 U.S. at 630-31, 111 . Thus, it was unnecessary to decide whether a criminal defendant has a right to a unanimous verdict in a state capital case.⁶

The remaining issue was whether Arizona’s definition of the crime is constitutional under the Due Process Clause. The plurality concluded' — and Justice Scalia seemed to agree — that due process limits the legislature’s “capacity to define different courses of conduct ... as merely alternative means of committing a single offense, thereby permitting a defendant’s conviction without jury agreement as to which course ... actually occurred.” Id. at 632, 111 S.Ct. at 2497 (plurality opinion); see also id. at 650-52, 111 5.Ct. at 2506-08 (Scalia, J., concurring in the judgment) (recognizing due process limitation).

The plurality described this due process concern as analogous to vagueness:

The axiomatic requirement of due process that a statute may not forbid conduct in terms so vague that people of common intelligence would be relegated to different guesses about its meaning carries the practical consequence that a defendant charged under a valid statute will be in a position to understand with some specificity the legal basis of the charge against him. Thus it is an assumption of our system of criminal justice “ ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ ” that no person may be punished criminally save upon proof of some specific illegal conduct. Just as the requisite specificity of the charge may not be compromised by the joining of separate offenses, nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of “Crime” so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, would suffice for conviction.

Id. at 632-33, 111 S.Ct. at 2497-98 (plurality opinion) (citations and footnote omitted).

The plurality’s due process test looked to “history and wide practice as guides to fundamental values, as well as to narrower analytic methods of testing the moral and practical equivalence” of alternative means of satisfying an element of an offense. Id. at 637, 111 S.Ct. at 2499-2500. Finding ample historical evidence that murder has been defined as killing another with “malice aforethought” (of which the intent to kill and the intent to commit a felony were alternative aspects), that a significant number of other states defined murder in the same way that Arizona did, and that a moral equivalence between the two means could be found on the facts of the case, Justice Souter concluded that the Arizona statute was constitutional.

Concurring in the judgment, Justice Scalia agreed that the statute at issue was constitutional under the Due Process Clause, but disagreed as to the appropriate constitutional test. He argued that due process is defined solely in terms of historical practice, at least when the procedure at issue has historical roots. See id. at 650, 111 S.Ct. at 2506-07 (Scalia, J., concurring in the judgment). Because of the ample historical evidence cited by the plurality, Justice Scalia agreed with its judgment. Id. at 651, 111 S.Ct. at 2507.

Justice White dissented in an opinion joined by Justices Marshall, Blackmun, and Stevens. Grounding his analysis in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970), which requires “proof beyond a reasonable of every fact necessary to constitute the crime,” Justice White opined that the verdict at issue provided “no clues whether the jury agrees that the three elements of premeditated murder or the two elements of felony murder have been proved beyond a reasonable doubt.” Schad, 501 U.S. at 655, 111 S.Ct. at 2509 (White, J., dissenting).

B. The Analysis Applied to the CCE Statute

Unlike the Supreme Court in Schad, which was bound by the Arizona Supreme Court’s interpretation of state law, we must interpret the CCE statute. In relevant part, 21 U.S.C. § 848 provides:

[A] person is engaged in a continuing criminal enterprise if—

(1) he violates any provision of this subchapter or subehapter II of this chapter the punishment for which is a felony, and

(2) such violation is part of a continuing series of violations of this subchapter or subchapter II of this chapter—

21 U.S.C. § 848(c). In the language of Schad, the question is whether the menu of predicate violations specified by subehapters I and II are different “means” or different “offenses.”⁷ In other words, do the provisions represent various ways to commit the CCE crime, like shooting, drowning, etc. for a murder statute? Or do they represent different crimes themselves, such that the jury must agree which particular related violations were committed?⁸

The statute lends itself to either interpretation. On the one hand, the statute is triggered by violation of “any provision” as part of a “continuing señes of violations.” By placing no emphasis on the particular, the statute could be read to say that different routes of violation are fungible alternatives, suggesting that the provisions are mere “means.”

On the other hand, the different ways of violating the CCE statute are themselves separate offenses defined in the United States Code. The predicate violations are things which, by definition, Congress views as separate offenses. Cf. Babb v. United States, 218 F.2d 538, 539-40 & n. 3 (5th Cir.1955) (“The statute under which this prosecution is lodged [18 U.S.C. § 545] defines two sepai’ate types of offenses [because] [t]he first paragraph ... was derived from 19 U.S.C. § 1593(a), which in turn had as its source R.S. § 2865 - [and] [t]he second paragraph ... was derived from 19 U.S.C. § 1593(b), which in turn had as its source R.S. § 3082.”). Thus, we find the language of the statute inconclusive.⁹

Legislative history also provides little help here. Neither party cited any legislative history, and our own research failed to turn up any probative evidence. Indeed, the opaqueness of the “continuing series” requirement was a matter of concern to some members of Congress. See H.R.Rep. No. 1444, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4651 (stating “additional views” of some committee members that “it is not at all clear what constitutes a ‘continuing series of violations’ ”).

At least one circuit — the Seventh — has argued that the purpose of the CCE statute sheds light on Congress’s intent.

The point of the CCE statute is to impose special punishment on those who organize and direct a significant number of larger scale drug transactions; the exact specification by unanimous jury consent of any particular three ... offenses is irrelevant to any theory about why punishment should be enhanced for such uniquely antisocial activity.

United States v. Canino, 949 F.2d 928, 948 (7th Cir.1991). We think this argument proves too much: the punitive purpose of a criminal statute will never be served by providing more procedural protections to the defendant. Furthermore, even a more nuanced inquiry into a statute’s purpose is unlikely to provide insight. A statute’s broad goal says little about whether different acts falling within the statute are means or offenses, or about the requisite degree of jury agreement.

Although we are skeptical that the first prong of the Schad analysis — examining whether the legislature, in enumerating alternatives, intended to create a single or multiple offenses — has much predictive force, we must perforce attempt to work with Schad.10 In doing so, we acknowledge that the CCE statute offers little explicit guidance on Congress’s intent. We therefore turn to several background interpretive principles, which, we conclude, establish that Congress did intend to require jury unanimity as to the CCE predicate offenses.¹¹

1. Background Interpretive Principles

a. Tradition in Criminal Jurisprudence

We look first to general historical tradition in criminal jurisprudence. Criminal trials have long ensured substantial jury agreement as to the facts establishing the offense. This is because criminal statutes and the common law have generally defined crimes in terms of conduct (and accompanying mental state) that takes place in a single place at some specific time. For example, murder statutes require that the defendant killed some other person, an act occurring in some specified time and place. Thus, when a jury delivers a general guilty verdict for such a crime, we are confident that the jury agreed on most of the actions engaged in by the defendant. When there is a real risk that a jury will convict without agreement on a discrete set of actions, courts have required specific unanimity instructions. See, e.g., United States v. Holley, 942 F.2d 916, 928-29 (5th Cir.1991) (reversing a conviction for perjury because the district court’s instructions allowed the jury to convict without agreement as to a particular false statement), cert. denied, — U.S. -, 114 S.Ct. 77, 126 L.Ed.2d 45 (1993). In our view, substantial agreement on a discrete set of actions is essential to ensure that the defendant is guilty beyond a reasonable doubt of some specific illegal conduct. See Howe, supra n. 10.

In the face of this tradition, we cannot read from Congress’s silence that it intended CCE predicate offenses to constitute mere means of violating a single CCE offense. To do so would allow conviction on jury agreement merely that the defendant committed some three violations of United States Code, Title 21, Chapter 13, subchapters I and II, even when it is alleged that the defendant committed many different acts occurring at different times and places. This is a wholly different situation from the one at issue in Schad. Indeed, as Justice Scalia pointed out in criticizing the plurality’s moral equivalence test of constitutionality, “We would not permit, for example, an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday, despite the ‘moral equivalence’ of those two acts.” Schad, 501 U.S. at 651, 111 S.Ct. at 2507 (Scalia, J., concurring in the judgment).¹²

b. Constitutional Considerations

Constitutional considerations also guide our analysis. There is a real possibility that the CCE statute would violate the Due Process Clause absent a specific unanimity requirement. See Eric S. Miller, Note, Compound-Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts, 104 Yale L.J. 2277 (1995). “[Wjhere a statute is susceptible to two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [our] duty is to adopt the latter.” United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836 (1909).

Both the Schad plurality and Justice Scalia agree that due process is defined in part by historical practice. As mentioned, interpreting predicate offenses as different means of violating a single continuing series element marks a departure from historical guarantees on the degree of factual agreement necessary to establish a conviction. And, of course, on a more specific level, there is no historical analogue to the CCE statute. The first complex criminal statutes like the CCE law appeared only in 1970. See Miller, supra, at 2280 & nn. 12-14.¹³ We recognize that “history [is] less useful as a yardstick in cases dealing with modern statutory offenses lacking clear common law roots.” Schad, 501 U.S. at 640 n. 7, 111 S.Ct. at 2501-02 n. 7 (plurality opinion). But to the extent history has any force, it counsels against interpreting CCE predicate violations as means, for which unanimity is not required.

Moreover, in addition to historical practice, the Schad plurality believed that due process requires that different means, for which unanimity is not required, must reflect notions of “equivalent blameworthiness or culpability.” Schad, 501 U.S. at 643, 111 S.Ct. at 2503 (plurality opinion). If the predicate offenses are interpreted as means, we suspect that the CCE statute may have serious problems meeting this requirement. A violation of any provision of U.S.Code Title 21, Chapter 13, subchapter I or II can serve as a predicate offense. See 21 U.S.C. § 848(c). Predicate offenses thus range from simple possession of marijuana, 21 U.S.C. § 844, to the distribution of cocaine or heroin, 21 U.S.C. § 841. The disparate penalties imposed for different violations — generally no more than a year in prison for the first-time offense of simple possession, see 21 U.S.C. § 844(a), compared to a minimum of ten years in jail for distributing a large quantity of drugs, see 21 U.S.C. § 841(b)(1)(A) — cast serious doubt on whether different predicate offenses (at least these different offenses) can be characterized as equally blameworthy.¹⁴ These potential constitutional problems — -both equivalent blameworthiness and lack of a historical analogue — also lead us to interpret the CCE predicate violations as elements of different offenses, for which unanimity is required.

Judge Garth criticizes this analysis, because, in his view, Congress has “already determined” that different predicate offenses are equally blameworthy by making them alternative routes of violating the same statute. But this view fundamentally misunderstands the nature of the “equivalent blameworthiness” analysis. The Schad plurality’s test is a check on the legislature’s power: its purpose is to decide whether different routes of violating the same statute are so morally disparate that a legislature cannot constitutionally treat them as mere means. Thus, the mere fact that Congress has established alternative routes of violating the same statute shows only the need for the equivalent blameworthiness analysis; it cannot answer the question.

Judge Garth also suggests that the equivalent blameworthiness test is a pointless exercise: even if different predicate offenses are so morally disparate that a specific unanimity instruction is required, he argues, a defendant could still be convicted under the CCE statute for widely different offenses. While this argument points out another potential problem with the CCE statute — one not at issue on this appeal — it does not undermine the utility of the equivalent blameworthiness test.

c. The Rule of Lenity

Finally, requiring specific unanimity is counseled by concerns underlying the rule of lenity. That rule — requiring ambiguous criminal statutes to be construed in favor of the defendant — is applied both to the scope of conduct covered by a criminal statute and to the extent of the penalties imposed. See, e.g., Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980) (“In past cases the Court has made it clear that [the rule of lenity] applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose.”) (citations omitted). According to the Supreme Court, the rule ensures “there is fair warning of the boundaries of criminal conduct and that legislatures, not courts, define criminal liability.” Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 1001-02, 108 L.Ed.2d 132 (1990) (citing Liparota v. United States, 471 U.S. 419, 427, 105 S.Ct. 2084, 2089, 85 L.Ed.2d 434 (1985); United States v. Bass, 404 U.S. 336, 347-48, 92 S.Ct. 515, 522-23, 30 L.Ed.2d 488 (1971)).

The rule of lenity is not directly applicable to the question whether a single statute creates multiple offenses for purposes of jury unanimity. However, the rule has been applied to a conceptually analogous situation: whether a single criminal act constitutes one or more violations of a statute. See Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209,3 L.Ed.2d 199 (1958) (a single discharge of a shotgun wounding two federal officers constitutes a single violation of 18 U.S.C. § 254 (1940)); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (transporting two women across states lines constitutes a single violation of the Mann Act); United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952) (each breach of Fair Labor Standards Act duty to a single employee in any single workweek does not constitute a separate offense).

Moreover, the principles motivating the rule have considerable force here. Several cases — those addressing the penalties a defendant will receive — suggest that people deserve warning not only of the boundaries of criminal conduct, but also of the repercussions of crossing those boundaries. For example, in United States v. Granderson, — U.S. -, -, 114 S.Ct. 1259, 1261, 127 L.Ed.2d 611 (1994), the Court addressed the meaning of “the original sentence” in a statute providing that if a person serving a sentence of probation possesses illegal drugs, “the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.” - U.S. -, -, 114 S.Ct. 1259, 1261, 127 L.Ed.2d 611 (1994) (quoting 18 U.S.C. § 3565(a)) (emphasis added). Because the phrase was ambiguous, the Court applied the rule of lenity and interpreted the phrase to mean the applicable Guidelines sentence of imprisonment, not the revoked term of probation, resulting in a much shorter sentence. Id. at-, 114 S.Ct. at 1267-68. In that case, the defendant’s conduct — possessing illegal drugs while on probation — was clearly illegal and the only question was the harshness of the penalty. The court’s opinion thus implies that fair warning as to the harshness of criminal penalties is an important concern. Accord Bifulco v. United States, 447 U.S. 381, 400, 100 S.Ct. 2247, 2259, 65 L.Ed.2d 205 (1980) (applying rule of lenity in deciding what punishment is authorized by a statute); Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958) (“This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.”).

Procedural protections at trial are inherently linked to such repercussions, for these protections affect the likelihood that a penalty will be imposed. At some point, differences in procedural protections become as significant as different penalties, and the need for fair warning just as critical. The degree of jury unanimity required by a statute is important enough a protection that we hesitate to interpret an ambiguous statute to require less, rather than more, unanimity.

Just as in the rule of lenity cases, we are faced with an ambiguous statute. See Smith v. United States, 508 U.S. 223, 238-39, 113 S.Ct. 2050, 2059, 124 L.Ed.2d 138 (1993) (rule of lenity “is reserved for cases where, [ajfter seizing] every thing from which aid can be derived, the Court is left with an ambiguous statute.”) (quoting United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971) (quoting United States v. Fisher, 6 U.S. (2 Crunch) 358, 386, 2 L.Ed. 304 (1805))) (internal quotations omitted). As mentioned, the language and legislative history of the CCE statute provide no clue as to Congress’s view of specific unanimity. In such a situation, principles underlying the rule of lenity, in conjunction with the other principles we have discussed, lead us to read the CCE statute to require unanimity as to each predicate offense.

2. Reconciling United States v. Jackson

The government argues that requiring specific unanimity as to predicate offenses would conflict with United States v. Jackson, 879 F.2d 85 (3d Cir.1989), which held that, in a CCE prosecution, unanimous agreement is not required as to the identity of the five or more underlings supervised, organized, or managed by the defendant. See also United States v. Canino, 949 F.2d 928, 946 (7th Cir.1991) (criticizing the apparent inconsistency between Jackson and Echeverri). However, a proper understanding of congressional intent shows that Echeverri and Jackson are quite consistent.

In Jackson, we considered whether, in a CCE prosecution, unanimous agreement is required as to the identity of the five or more underlings supervised, organized, or managed by the defendant. We concluded that the primary concern of the five or more persons requirement is “that the organization in which the defendant played a leadership role was sufficiently large to warrant ... enhanced punishment,” and held that unanimity on the specific identity of the underlings is not required. Id. at 88.

Jackson’s holding is consistent with our holding here for two reasons. First, unlike the continuing series requirement, the five-person requirement has a historical analogue in the law of conspiracy, which generally has not required the jury to unanimously agree on the identity of the defendant’s co-conspirators. See United States v. Harris, 959 F.2d 246, 256 & n. 13 (D.C.Cir.) (stating this proposition and citing cases), cert. denied, 506 U.S. 932, 113 S.Ct. 362, 121 L.Ed.2d 275, and cert. denied sub nom. Smith v. United States, 506 U.S. 932, 113 S.Ct. 362, 121 L.Ed.2d 275, and cert. denied sub nom. Palmer v. United States, 506 U.S. 933, 113 S.Ct. 364, 121 L.Ed.2d 277 (1992).¹⁵ Second, unlike the wide array of potential CCE predicate offenses, acting in concert with one group of five people is no more or less blameworthy than acting in concert with another group of five. Id. at 256-57. Thus, two of three reasons that lead us to conclude from its silence that Congress meant to require unanimity as to specific predicate offenses— historical precedent and possible constitutional problems — cause us to read congressional silence as to the five-person requirement quite differently.

3. Conclusion

In summary, we hold that the CCE statute requires unanimous agreement as to the identity of each of the three related offenses comprising the continuing series. Our interpretation is guided by constitutional concerns, traditions in criminal jurisprudence, and the rule of lenity. These background principles lead us to conclude that when a statute combines formerly distinct offenses into a single crime — offenses that may occur at different times and in different places — we should assume that Congress intended the formerly distinct offenses to retain their “offense” status with its attendant unanimity requirements. Asking Congress to speak clearly is especially important here, where the penalty for violation of the statute is quite severe, from between twenty years to life in jail. See 21 U.S.C. § 848(a). Because there is no evidence of congressional intent to the contrary, we hold that the CCE statute requires unanimity as to its predicate offenses.

In making this decision, we do not hamper Congress’s ability to enact innovative statutes to deal with new kinds of crime. Congress may alter unanimity requirements by statute if it makes its intention clear.¹⁶ Furthermore, as this case illustrates, see infra, unanimity as to predicate offenses is hardly an onerous burden.

III. Harmless Error

Because there is a “reasonable likelihood,” Estelle v. McGuire, 502 U.S. 62, 71-73, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991); Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1197-98, 108 L.Ed.2d 316 (1990), that the jury interpreted the district court’s general unanimity instruction to require agreement only that some three predicate violations occurred and not that the same violations occurred, the district court’s failure to give Edmonds’s proposed specific unanimity instruction was error. This error implicates Edmonds’s Sixth Amendment right to a unanimous verdict in a federal criminal trial.¹⁷ However, most constitutional errors are subject to the harmless error analysis of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Rose v. Clark, 478 U.S. 570, 578-79, 106 S.Ct. 3101, 3106-07, 92 L.Ed.2d 460 (1986) (“[Wjhile there are some errors to which Chapman does not apply, they are the exception and not the rule.”).

Edmonds argues, and the original panel held, that Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), precludes us from engaging in harmless error analysis. In Sullivan, a unanimous Supreme Court held that a constitutionally deficient reasonable doubt instruction is not subject to harmless error analysis. The Court reasoned that a verdict of guilty beyond a reasonable doubt is a necessary predicate of Chapman’s harmless error inquiry:

[Chapman’s] inquiry, in other words, 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. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be— would violate the jury-trial guarantee.

.... 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. That is not enough. 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.

508 U.S. at 279-80, 113 S.Ct. at 2081-82 (citations omitted).¹⁸ Edmonds asserts, and the panel agreed, that the jury instruction in this case allowed the jury to return a non-unanimous verdict on an element of the offense, and thus there is no actual jury finding of guilty upon which harmless error analysis may operate.

Edmonds and the panel are correct in a sense. Just as the Sixth Amendment precludes the court from affirming on the ground that the jury would have found the defendant guilty beyond a reasonable doubt had it been properly instructed, we cannot affirm a non-unanimous verdict simply because the evidence is so overwhelming that the jury surely would have been unanimous had it been properly instructed on unanimity.

Affirmance here, however, does not require making this speculative leap. Unlike the complete undermining of the verdict that occurred in Sullivan, this ease involves error affecting only one of many findings made by the jury. The Supreme Court has held that similar errors — jury instructions that erroneously contain a mandatory presumption or misdescribe an element of the offense — may be harmless if the remaining unaffected jury findings are “functionally equivalent to finding” the lacking element. Carella v. California, 491 U.S. 263, 271, 109 S.Ct. 2419, 2423-24, 105 L.Ed.2d 218 (1989) (Scalia, J., concurring in judgment); see also Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) (instruction containing an erroneous presumption); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (same); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (same); Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (instruction misstating an element of the offense).

Even though such errors impermissibly deprive the jury of its fact-finding function,¹⁹ the resulting verdicts may be salvageable. Specifically, if other facts found by the jury are “so closely related” to the fact tainted by erroneous instructions “that no rational jury could find those facts without also finding [the former] fact, making those findings is functionally equivalent to finding” the lacking element. Carella, 491 U.S. at 271, 109 S.Ct. at 2423-24 (Scalia, J., concurring in the judgment); see also Rose v. Clark, 478 U.S. 570, 580-81, 106 S.Ct. 3101, 3107-08, 92 L.Ed.2d 460 (1986) (“When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt. In many cases, 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 injury. In that event ... [,] the jury has found, in Winship’s words, ‘every fact necessary’ to establish every element of the offense beyond a reasonable doubt.”) (citations omitted); Carella, 491 U.S. at 266, 109 S.Ct. at 2421 (quoting this passage from Bose with approval); Pope, 481 U.S. at 503, 107 S.Ct. at 1922 (same).

Sullivan itself distinguishes this line of cases from the fundamental flaw of misdes-cribing the burden of proof. In the latter case, the error “vitiates all the jury’s findings.” Sullivan, 508 U.S. at 281, 113 S.Ct. at 2082 (emphasis in original). Absent “the essential connection to a ‘beyond-a-reasonable-doubt’ factual finding ... a reviewing court can only engage in pure speculation.” Id. at 281, 113 S.Ct. at 2082 (citations omitted).

In this case it is unnecessary to speculate on what the jury’s verdict would have been absent the erroneous instruction: the jury made proper unanimous findings of other facts which are “functionally equivalent” to finding that three specific predicate offenses were related to each other. Adhering to the assumption that jurors follow the instructions they are given, see Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987), we know that the jury unanimously found that Edmonds committed every CCE predicate offense alleged, and that Edmonds committed some three related predicate offenses.

The only finding for which unanimity is potentially lacking is that the same three predicate offenses are related to each other. However, the evidence introduced at trial to show that Edmonds committed each of the predicate offenses established that Edmonds used the same packers and mode of distribution throughout. See Edmonds, 52 F.3d at 1243. Edmonds did not argue to the jury— and has not argued since — that any of the predicate offenses were unrelated to the others.²⁰ Thus, the facts necessarily found by the jury to convict on the predicate offenses show conclusively that all of the predicate offenses are related to each other.

In these circumstances, no rational jury could unanimously find Edmonds guilty of the predicate offenses without unanimously finding that the offenses were related to each other. See Ianniello v. United States, 10 F.3d 59, 64 (2d Cir.1993) (holding that a failure to instruct the jury that a RICO conviction requires a relationship between predicate offenses was harmless because the evidence which the jury must have believed to convict on every alleged predicate act conclusively established their relatedness); United States v. Maloney, 71 F.3d 645, 658 (7th Cir.1995) (holding harmless court’s erroneously instructing the jury that it could convict for obstruction of justice under 18 U.S.C. § 1503 without finding that an official proceeding was pending because the jury’s finding that the defendant attempted to obstruct justice “is so closely related to the ultimate and unrebutted fact of the existence of a pending grand jury proceeding”); United States v. Parmelee, 42 F.3d 387, 393 (7th Cir.1994) (holding that a failure to instruct the jury on an essential element of 8 U.S.C. § 1324(a)(1)(B) was harmless because unre-butted evidence meant that no rational jury could have convicted without finding the missing element), cert. denied sub nom. Brozek-Lukaszuk v. United States, — U.S. -, 116 S.Ct. 63, 133 L.Ed.2d 25, and cert. denied sub nom. Sobiecki v. United States, — U.S.-, 116 S.Ct. 63, 133 L.Ed.2d 25 (1995).

Judge Stapleton takes issue with our understanding of the term “functionally equivalent” findings. While he does not say so explicitly, he seems to read Rose v. Clark to allow harmless error analysis only when untainted findings, considered without reference to the evidence supporting the findings, are logically equivalent to the missing element. Otherwise, he argues, the Court engages in impermissible speculation about what a properly instructed jury would have decided.

We acknowledge that the Supreme Court has not clearly defined “functionally equivalent” findings, and thus that there is some room for disagreement about the meaning of the term. Nevertheless, Judge Stapleton’s position lies outside of the leeway left by the Supreme Court’s pronouncements in this area. More importantly, his rule, if adopted, would frustrate the purpose of harmless error analysis — to distinguish immaterial errors from those affecting the trial’s truth-finding function.

Judge Stapleton argues that in Rose the missing element was “necessarily inferred” from fact findings in that case, while here we impermissibly establish the missing element from “the strength of the trial evidence.” We disagree. Both the Rose Court and this Court allowed the missing element to be found by looking at the jury’s untainted findings in light of the evidence supporting those findings. In Rose, the trial court impermis-sibly instructed the jury to presume malice from certain predicate facts:

All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. Thus, if the State has proven beyond a reasonable ... doubt that a killing has occurred, then it is presumed that the killing was done maliciously.

Rose, 478 U.S. at 574, 106 S.Ct. at 3104. Given this instruction, the jury need only have found that a killing had occurred to establish the element of malice. But malice does not necessarily follow from the fact of a killing. Therefore, the established predicate fact bore no logical relationship to the missing element. In Judge Stapleton’s terms, the fact that a killing has occurred is “as consistent” with the nonexistence of malice as it is with the existence of malice.

Nevertheless, the Supreme Court remanded for application of harmless error analysis. The Court stated:

When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt. In many cases, 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 injury.

Id. at 580-81, 106 S.Ct. at 3107-08. The Court was explicit that this inquiry would consider the evidence introduced at trial. In particular, it noted that “[t]he parties disagree on the scope of the evidence that must be assessed” on remand. Id. at 584 n. 13, 106 S.Ct. at 3109 n. 13; see also id. at 583, 106 S.Ct. at 3109 (making several references to Chapman's requirement that the entire record be reviewed).²¹ In giving directions for remand, the Court gave the following example:

[I]t would defy common sense to conclude that an execution-style killing or a violent torture-murder was committed unintentionally. It follows that no rational jury would need to rely on an erroneous presumption instruction to find malice in such cases.

Id. at 581 n. 10, 106 S.Ct. at 3107-08 n. 10. Presumably, in the example described by the Court, the jury would not make findings as to the existence of “an execution-style killing or a violent torture-murder.” Rather, such facts could only be shown by the evidence supporting the jury’s finding that a homicide had occurred.

Our reading of the functional equivalence test — which allows inquiry into evidence necessary to support the jury’s findings — is faithful both to the erroneous presumption cases and to Sullivan. Following the erroneous presumption cases, we examine the evidence in the record. However, our analysis follows Sullivan’s admonition not to speculate on what the jury would have found had it been correctly instructed. By examining the evidence necessary to support the jury’s findings, we are not weighing any evidence, as Judge Stapleton suggests, but simply using-undisputed evidence to give content to the jury’s untainted findings.

Furthermore, our analysis furthers the purpose of harmless error analysis:

The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.

Rose, 478 U.S. at 577, 106 S.Ct. at 3105-06 (citations omitted). In this ease, the jury was instructed that, to convict, it had to find three related predicate offenses and that it had to unanimously find that every predicate offense occurred. All of the evidence establishing the predicate offenses showed that they were related. Importantly, Edmonds never even suggested that the offenses were unrelated, and nothing in the trial record suggests such a conclusion. In such a case, it requires no speculation to see that the error did not affect the verdict.²²

Accordingly, we hold that the error was harmless beyond a reasonable doubt, Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The judgment of the district court will therefore be affirmed.

1 . This may be one of this court’s last "in banc " opinions. Until recently, we have eschewed the more common "en banc " spelling in favor of the latin form. However, a proposed amendment to the Federal Rules of Appellate Procedure adopts the "en banc " spelling. See Fed.R.App. P. 35 (Preliminary Draft of Proposed Amendment Sept. 1995).

2 . The indictment's inclusion of the money laundering offense, 18 U.S.C. § 1956, as a CCE predicate offense appears to be in error. See 21 U.S.C. § 848(c) (defining CCE predicate offenses as violations of U.S.Code Title 21, Chapter 13, subchapter I or II). However, Edmonds has not raised this issue, and we thus deem it waived.

3 . In Sullivan, the trial judge gave a definition of reasonable doubt virtually identical to one held unconstitutional in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam).

4 . In relevant part, 21 U.S.C. § 848 states:

[A] person is engaged in a continuing criminal enterprise if—

(1) he violates any provision of this subchap-ter or subchapter II of this chapter the punishment for which is a felony, and

(2) such violation is part of a continuing series of violations of this subchapter or sub-chapter 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

(B) from which such person obtains substantial income or resources.

21 U.S.C. § 848(c).

5 . Justice Scalia joined part of Justice Souter’s opinion, not relevant to this case, dealing with the right to have the jury instructed on a lesser included offense in capital cases.

6 . Although the Sixth Amendment requires a unanimous verdict in federal criminal trials, it does not so require in state trials. See Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). In Schad, Schad argued that the Sixth, Eighth, and Fourteenth Amendments require a unanimous jury in state capital cases. As mentioned, the Court did not reach this question.

7 . Our inquiry is not, as Judge Alito suggests, whether Congress intended to include "a special jury-unanimity requirement.” Rather, we must determine, as we do with all statutes, what level of unanimity Congress intended. In Schad's terms, the question is whether Congress intended a given fact to be an "element.” When a legislature enacts a statute, the legislature determines that certain facts are "elements,” i.e., that they are "indispensable to proof of a given offense.” Schad, 501 U.S. at 633, 111 S.Ct. at 2497-98 (plurality opinion). The characterization of a fact as an "element” then carries the consequence that the jury must agree that the fact occurred in order to convict. See, e.g., id. at 639, 111 S.Ct. at 2500-01 ("The essence of petitioner’s argument is that, despite [the Arizona Supreme Court’s] unitary definition of the offense, each of these means must be treated as an independent element as to which the jury must agree....").

When the object of our statutory interpretation inquiry is correctly identified, Judge Alito’s criticisms fall short. That Congress has not generally adopted "special unanimity requirements” or that Congress can be explicit when it wants "special unanimity requirements” is immaterial. Congress determines “elements," and hence, what facts require unanimous jury agreement, every time it passes a criminal statute. For example, we would not allow a conviction to stand for murder under 18 U.S.C. § 1111 without unanimous agreement that someone was killed. Congress has made the unlawful killing of a human being an "element” for which unanimity is required. (Of course, the present inquiry is more difficult than this example, because we must inquire whether the CCE statute creates more than one offense, see infra note 8, each with its own elements).

8 . The Schad plurality recognized that a single statute offering alternative routes of violation may create multiple offenses for which unanimity is required. For example, in rejecting the dissent’s mode of analysis, the plurality stated:

In the dissent's view, whenever a statute lists alternative means of committing a crime, "the jury [must] indicate on which of the alternatives it has based the defendant’s guilt,” even where there is no indication that the statute seeks to create separate crimes. This approach rests on the erroneous assumption that any statutory alternatives are ipso facto independent elements defining independent crimes under state law, and therefore subject to the axiomatic principle that the prosecution must prove independently every element of the crime. In point of fact, ... legislatures frequently enumerate alternative means of committing a crime without intending to define separate elements or separate crimes. The question whether statutory alternatives constitute independent elements of the offense therefore does not, as the dissent would have it, call for a mere tautology; rather it is a substantial question of statutory construction.

Schad 501 U.S. at 635-36, 111 S.Ct. at 2498-99 (plurality opinion) (footnotes and citations omitted). The plurality’s statement that "legislatures frequently enumerate alternative means of committing a crime without intending to define separate elements or separate crimes” implies that the plurality believes legislatures sometimes do intend to define separate crimes when they enumerate alternative ways of committing a crime.

9 .If the correct statutory analysis is used (i.e., whether Congress intended the different alternatives of violating the CCE statute to constitute separate "offenses"), Judge Alito's argument that the CCE statute is unambiguous is not tenable. The alternatives at issue here — "violations of] any provision of this subchapter or subchapter II of this chapter” — are themselves defined as separate crimes. It is far from clear whether Congress intended these alternatives to lose their status as separate offenses when then they were incorporated by reference into a new statute.

Judge Alito’s dispute with our statutory analysis is really a dispute over the appropriate default rule for interpreting congressional silence. He criticizes us for failing to anchor our analysis in the text or legislative history of the CCE statute, but he cites no text or legislative history in support of his view that CCE predicate offenses are not "elements” for which unanimity is required. The reason for both our omissions is sound; the statute is simply silent on this issue.

10 . Arguably, rather than looking to the legislature’s intent, it would be preferable to ask, in the first instance, whether differences between statutory alternatives are so important that the lack of jury agreement as to a specific alternative casts too much doubt on the accuracy of the verdict. See Scott W. Howe, Jury Fact-Finding in Criminal Cases, 58 Mo.L.Rev. 1 (1993). Hopefully, the Supreme Court will revisit this question soon.

11 . We use the phrase "jury unanimity as to the CCE predicate offenses” to mean jury agreement on both the identity and relatedness of the three offenses.

12 . Judge Alito challenges our reading of history, arguing that it is not true (1) that the jury has always been required to "agree[] on most of the actions engaged in by the defendant”; nor (2) that the prosecution has always been required to establish the "specified time and place” where a charged offense occurred. But this response, which artificially atomizes our position, is fundamentally flawed. Although each of Judge Alito’s propositions is correct in isolation, the question is whether convictions have been allowed to stand where the jury disagrees on both (1) most of the defendant's actions; and (2) the time and place the crime occurred. If the CCE predicate offenses are not elements upon which the jury must agree, that is what the CCE statute would allow.

13 . Judge Garth asserts that the law of conspiracy provides a historical analogue to the continuing series requirement, because, he argues, a defendant can be convicted of conspiracy without jury agreement as to which object, of various objects alleged, forms the basis of the conspiracy. We disagree. First, we are skeptical of Judge Garth’s premise. At some point, different alleged conspiracy objects suggest such disparate fact patterns that jury agreement as to the precise object of the conspiracy is necessary to support conviction. See United States v. Castro, 887 F.2d 988, 993 (9th Cir.1989) (“A unanimity instruction as to the particular objects of a charged conspiracy is appropriate where it appears that a conviction might rest upon different jurors having found the existence of different facts .... ”); accord United States v. Feldman, 853 F.2d 648, 653 (9th Cir.1988), cert. denied, 489 U.S. 1030, 109 S.Ct. 1164, 103 L.Ed.2d 222 (1989). Second, even assuming Judge Garth’s view of conspiracy law is correct, the object of a conspiracy — the purpose of the conspiratorial agreement — is hardly analogous to the continuing series requirement, which requires three completed acts (with accompanying mental states) that themselves constitute separate crimes.

14 . The predicate offenses involved in this case do not pose the severe disparate culpability problem identified in the hypothetical above, and thus Edmonds is not in a position to challenge the CCE statute’s constitutionality on this basis. See Schad, 501 U.S. at 644, 111 S.Ct. at 2503-04 ("The question is whether felony murder may ever be treated as the equivalent of murder by deliberation, and in particular whether robbery murder as charged in this case may be treated as thus equivalent.”) (emphasis added). However, the possibility of constitutional problems in other cases is an important consideration in our interpretive inquiry.

15 . The CCE statute’s requirement that the defendant act "in concert” with five or more other people, 21 U.S.C. § 848(c), is similar to conspiracy law's requirement that a defendant enter into an agreement with some number of co-conspirators. Thus, the identity of a conspiracy defendant's co-conspirators provides a useful historical analogue to the identity of the five CCE underlings.

16 . As our holding is based on statutory interpretation, we do not reach the question whether the CCE statute would be unconstitutional absent a unanimity requirement. We leave that decision for another day.

17 . Language in the Schad plurality opinion arguably casts some doubt on whether the Sixth Amendment is implicated in jury verdict specificity problems. See Schad, 501 U.S. at 634 n. 5, 111 S.Ct. at 2498 n. 5 (plurality opinion) (criticizing the Fifth Circuit for grounding the right to jury consensus on a single course of action on the Sixth Amendment rather than the Due Process Clause). However, read as a whole, we think that the Schad plurality's emphasis on the Due Process Clause does not mean that the Sixth Amendment is irrelevant here. Rather, we conclude that the Sixth Amendment does require unanimity, in federal criminal trials, on all elements of the offense. However, because what constitutes an "element” is purely a matter of legislative intent, the Sixth Amendment places no limit on the legislature’s power to make alternative facts "means” not subject to a unanimity requirement. The limit on the legislature's definitional power, then, comes from the Due Process Clause. See Miller, supra, at 2284.

We will not engage Judge Alito’s alternative view that only the Sixth Amendment is relevant here. As the Schad plurality pointed out, "this difference in characterization ... is immaterial to the problem of how to go about deciding what level of verdict specificity is constitutionally necessary.” Schad, 501 U.S. at 634 n. 5, 111 S.Ct. at 2498 n. 5 (plurality opinion).

However, we reject the applicability of Judge Alito’s constitutional test. Judge Alito asserts that a legislative definition is unconstitutional only if it ”contain[s] a combination of elements having no rational basis other than” an attempt to create room for factual disagreement underlying a conviction. While this framing of the issue represents an interesting way of balancing legislative deference with constitutional concerns, it is without support. Judge Alito asserts that the problematic hypotheticals discussed in Schad— (1) a crime permitting alternative findings of "embezzlement, reckless driving, murder, burglary, tax evasion, or littering,” Schad, 501 U.S. at 633, 111 S.Ct. at 2497-98 (plurality opinion); and (2) "a felony consisting of either robbery or failure to file a tax return,” id. at 650, 111 S.Ct. at 2506-07 (Scalia, J„ concurring in the judgment) — have no rational basis other than "the circumvention of otherwise applicable jury-unanimity requirements.” Although this may be a true descriptive claim, it does not justify displacing the constitutional tests explicitly stated by the Schad plurality (history, wide practice, and moral equivalence) and Justice Scalia (history) with a novel "rational combination of elements” test.

18 . In addition, the Court stated that "[a]nother mode of analysis leads to the same conclusion,” and held that the unconstitutional reasonable doubt instruction was a "structural defect! ] in the constitution of the trial mechanism” not subject to harmless error analysis. Id. at 280-83, 113 S.Ct. at 2082-83 (quoting Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (opinion of Rehnquist, C.J., for the Court)) (internal quotations omitted); see also Sullivan, 508 U.S. at 281-85, 113 S.Ct. at 2083-84 (Rehnquist, C.J., concurring) (applying the Fulminante analysis).

19 . See Carella, 491 U.S. at 265, 109 S.Ct. at 2420-21 (“Such directions subvert the presumption of innocence accorded to accused persons and also invade the truth-finding task assigned to juries in criminal cases.”); id at 268, 109 S.Ct. at 2422 (Scalia, J., concurring in the judgment) ("The Court has disapproved the use of mandatory conclusive presumptions not merely because it conflict[s] with the overriding presumption of innocence ..., but also because it invade[s] [the] fact-finding function which in a criminal case the law assigns solely to the jury.'j (citations and internal quotations omitted) (alterations in original).

20 . Edmonds suggests in his answer to the government's petition for rehearing that it would have been improper to dispute relatedness in the absence of his requested specific unanimity instruction. We reject this argument because the jury was properly instructed that it must find three related offenses to convict under the CCE statute. Edmonds thus had ample incentive to contest relatedness.

21 . Although Justice Scalia's concurrence in Car-ella criticized a broad review of the record in erroneous presumption cases, he has not suggested that it is improper to examine the jury’s findings in light of evidence in the record necessary to establish those findings. Furthermore, Justice Scalia’s view of the impact of record evidence has not carried a majority of the Court. Rather, the Court has stated that harmless error analysis in erroneous presumption cases includes a review of the record. See Yates, 500 U.S. at 405-06, 111 S.Ct. at 1893-94; Rose, 478 U.S. at 583-84, 106 S.Ct. at 3109.

22 . While Judge Greenberg joins in Judge Garth's opinion that the charge was correct, if he concluded that the charge was erroneous he would join in Part III of this opinion with respect to harmless error. Judge Roth joins in Part III of this opinion.