United States v. Collins, Larry ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-3530
United States of America,
Plaintiff-Appellee,
v.
Larry Collins,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois, Springfield Division.
No. 97 CR 30059--Richard Mills, Judge.
Argued April 12, 2000--Decided August 4, 2000
Before Cudahy, Coffey and Kanne, Circuit Judges.
Kanne, Circuit Judge. Larry Collins was
convicted of conspiracy to distribute
methamphetamine and now raises four claims on
appeal. He alleges that the district court erred
by permitting the government to bolster the
credibility of its witnesses and by giving both
a factually incorrect jury instruction and an
untimely "dynamite" jury instruction. He also
challenges the constitutionality of the mandatory
life sentence for multiple drug-crime
convictions. We find that the factually incorrect
jury instruction was error, but it was harmless
under the circumstances. We affirm Collins’s
conviction.
I. History
A federal grand jury issued a three-count
superseding indictment against Collins, including
one count of conspiracy to distribute and possess
with intent to distribute methamphetamine in
violation of 21 U.S.C. sec.sec. 841 and 846, and
two counts of money laundering in violation of 18
U.S.C. sec. 1956. The indictment alleged that,
from January 1993 to June 1996, Collins
"knowingly and intentionally conspired with
Warren Wegman, Robin Allen, David Mabry, Earl
Jackson Hiland III and with others to possess
with the intent to distribute and to distribute
a controlled substance, namely methamphetamine."
Allen, Mabry and Hiland each testified against
Collins at his trial pursuant to plea agreements
in connection with guilty pleas on unrelated drug
charges. In its opening statement, the government
announced that it would present the testimony of
Collins’s co-conspirators and introduced the
trio’s plea agreements into evidence over
Collins’s objections. All but one of the plea
agreements emphasized that the witness had agreed
to provide "complete and truthful" testimony, and
each witness averred that he or she was obligated
by plea agreement to be truthful.
Robin Allen testified that she began selling
methamphetamine in 1992, when Wegman began
delivering money and buying from her on Collins’s
behalf. Allen testified that Collins continued to
purchase methamphetamine from her the following
year, using Wegman as a runner. David Mabry,
Allen’s boyfriend at the time, joined her during
the summer of 1993, and the couple became
Collins’s primary drug source. Allen and Mabry
testified that between June 1993 and May 1996,
they supplied methamphetamine to Collins about
ten times in two- to five-pound batches. In
addition to those sales, Allen and Mabry earned
a million dollars between 1993 and 1996 by
serving a host of customers other than Collins,
including Dale Daugherty.
Daugherty operated his own drug-dealing
operation, which had no connection with Collins.
In fact, Collins instructed Allen not to deal
with his competitor Daugherty because it "would
take food off my table." Allen agreed to cease
working with Daugherty, but Mabry continued
selling to Daugherty through a third party
without her help. After their arrests in May
1996, Allen and Mabry both pleaded guilty to
participation in a conspiracy headed by Daugherty
to distribute methamphetamine. However, by the
government’s admission both at trial and on
appeal, the Daugherty conspiracy did not involve
Collins, and the conspiracy for which Collins was
charged constituted a separate and distinct
operation. The government adduced telephone
records that listed calls between Daugherty and
Allen to corroborate Allen’s and Mabry’s
testimony, but the government was careful to
explain that Daugherty was not a member of
Collins’s operation. The government declared,
"we’re not alleging that Mr. Daugherty . . . was
a part of the conspiracy in which the defendant
was charged."
The third co-conspirator to testify against
Collins was Earl Hiland. He testified that he
traveled to California in 1993 or 1994 to acquire
methamphetamine from Allen for Collins and
visited St. Louis, Missouri, in 1994 to obtain
methamphetamine from an Allen affiliate. Hiland
was arrested in May 1996 and pleaded guilty to
possession with intent to distribute. At trial,
Hiland admitted that "there was absolutely no
involvement of Larry Collins" with his arrest and
the charges to which he pleaded guilty "didn’t
have anything to do with Larry Collins."
Collins’s attorney challenged Hiland’s
truthfulness on cross-examination, just as he had
attacked the credibility of Allen and Mabry
during their testimony. The government responded
to each challenge by highlighting the fact that
the witnesses were obligated under plea agreement
to tell the truth.
The government also presented several other
witnesses who had either worked with Collins or
purchased drugs from him. Michael Peters, a
friend of Wegman, testified that he purchased
methamphetamine from Collins in 1992, but shortly
thereafter began buying directly from Allen by
mail. In 1994, Peters was arrested and pleaded
guilty to possession of methamphetamine purchased
from Allen. Peters testified at trial that his
arrest and the underlying charges had nothing to
do with Collins. During closing argument, the
government based its case on the wealth of
testimony against Collins, particularly that of
Allen, Mabry and Hiland. The government again
stressed that these witnesses were testifying
pursuant to plea agreements and were bound to
tell the truth. The government emphasized that
there was "powerful motive for each one of these
witnesses to tell you the truth."
At the close of trial, Collins objected to Jury
Instruction No. 14, a cautionary instruction
reciting the following:
You have heard testimony from Earl Jackson Hiland
III, Herman Hudson, Robin Allen, David Mabry,
Frank Cikovich, Cheri Knowles, Ola Redes, Sonny
Logan, Michael Peters and Belinda Peters, who
received immunity; that is a promise from the
government that any testimony or other
information they provided would not be used
against them in a criminal case.
Earl Jackson Hiland III, Robin Allen, David Mabry
and Michael Peters have stated that they were
involved in the alleged conspiracy charged
against the defendant and that each has pled
guilty to a crime arising out of the same
occurrence for which the defendant is now on
trial.
Further, David Mabry, Carolyn Burd, Arduth Sapp
and Belinda Peters have admitted lying under
oath, and David Mabry has been convicted of lying
under oath.
You may give the testimony of these witnesses
such weight as you feel it deserves, keeping in
mind that it must be considered with caution and
great care. Moreover, the guilty pleas of Earl
Jackson Hiland III, Robin Allen, David Mabry and
Michael Peters are not to be considered as
evidence against the defendant.
* * *
Evidence that a witness has been convicted of a
crime is to be considered by you only insofar as
it may affect the witness’s credibility.
Collins argued that the second paragraph of this
jury instruction was incorrect because Allen and
Mabry had pleaded guilty to charges pertaining to
the Daugherty conspiracy, not the Collins
operation, and Hiland and Peters had pleaded
guilty to charges that each testified had nothing
to do with Collins. Unpersuaded, the district
court gave the instruction over Collins’s
objection.
After a day of deliberation, the jury announced
that it was "deadlocked" with respect to the
conspiracy count. The court convened a conference
that day with all counsel present to determine
how to proceed. Collins’s attorney acknowledged
that giving a "dynamite charge" would violate
United States v. Silvern, 484 F.2d 879 (7th Cir.
1973), because the court had not issued the
instruction to the jury in its initial charge.
Collins’s attorney, however, consulted with
Collins and authorized the court to give Seventh
Circuit pattern instruction 7.06, a modification
of the Silvern deadlock instruction. He explained
to the government and the court:
I believe that the law is and still is in the
Seventh Circuit that it’s error to give that
instruction after the jury has been instructed if
it wasn’t tendered originally. We would waive any
objection to the giving of that instruction. I’ve
discussed this with Mr. Collins and we would
certainly put our waiver on the record.
We certainly would like to have the jury return
a verdict in the case and we would suggest that
the instruction be given to the jury. . . . And
we are certainly willing to put a waiver on the
record to any error caused by giving of the
instruction by the timing.
The court then asked the following questions to
Collins directly:
Court: I would ask Mr. Collins, directly, if he
concurs with what his counsel has just stated?
Collins: Yes, sir.
Court: And do you agree and waive any problem
that might exist as far as a legal consequence is
concerned?
Collins: Yes, sir.
Court: And do you wish the Court at this time to
give the 7.06 instruction, is that right?
Collins: Yes, sir.
Out of an "abundance of caution," the district
court also asked Collins’s attorney to explain
for the record Collins’s reasons for waiving his
objection. Collins’s attorney cited the attorney-
client privilege but reiterated, "I discussed
with Mr. Collins and read with him the content of
the instruction and discussed with him the
consequences of giving and not giving the
instruction so that he could reach a reasoned
judgment on that." The court again asked Collins
if he agreed with his attorney, and Collins again
confirmed his consent, "Yes, sir." The court
concluded, "[T]hat’s as far as we can probably
go. . . . [T]hat is their decision and I accept
that."
The court then read the Silvern instruction to
the jury,/1 and later that day, the jury
convicted Collins on the conspiracy charge. On
September 30, 1998, the court sentenced Collins,
who had two prior drug convictions, to mandatory
life imprisonment and ten years supervised
release, pursuant to the "three-strikes"
sentencing provision of 21 U.S.C. sec.
841(b)(1)(A)(viii).
II. Analysis
Collins raises four issues on appeal. First,
Collins claims that the district court gave a
jury instruction that misstated the testimony of
Allen, Mabry, Hiland and Peters. Second, Collins
argues that the district court committed
reversible error by giving the Silvern
instruction without having previously included it
in the initial jury charge. Third, Collins
contends that the district court improperly
allowed the government to bolster the credibility
of its witnesses. Fourth, Collins challenges the
constitutionality of his mandatory life sentence.
A. Jury Instruction No. 14
Jury Instruction No. 14 served a cautionary
purpose, expressing "the idea that testimony from
witnesses who have been paid for assistance
should be received with greater skepticism
(’greater care’ or ’caution and great care’ or
’more caution’) than the testimony of other
witnesses. . . . Lower punishment is one coin in
which witnesses may be paid." United States v.
Cook, 102 F.3d 249, 251 (7th Cir. 1996). The
intent of the instruction was to warn the jury
that certain government witnesses, including
Allen, Mabry, Hiland and Peters, had received
leniency in exchange for their testimony and that
their questionable credibility was subject to the
jury’s careful consideration. We review for abuse
of discretion whether the jury instructions, "in
the light most favorable to the government" and
"viewed as a whole, address the issues fairly and
adequately." United States v. Stillo, 57 F.3d
553, 559 (7th Cir. 1995). Even if the instruction
was erroneous, Collins must establish actual
prejudice to win reversal. See United States v.
Aldaco, 201 F.3d 979, 990 (7th Cir. 2000).
Collins challenges the accuracy of the second
paragraph in the instruction, which states that
"Earl Jackson Hiland III, Robin Allen, David
Mabry and Michael Peters have stated that they
were involved in the alleged conspiracy charged
against the defendant and that each has pled
guilty to a crime arising out of the same
occurrence for which the defendant is now on
trial." Allen and Mabry pleaded guilty to crimes
connected to the Daugherty conspiracy, which the
government agreed was unrelated to Collins’s
operation. The Daugherty conspiracy therefore is
not "the alleged conspiracy charged against the
defendant," nor did those crimes underlying the
Daugherty conspiracy "aris[e] out of the same
occurrence" as the charges against Collins.
Furthermore, Hiland and Peters both unequivocally
stated that they were arrested for and pleaded
guilty to crimes having no connection to Collins.
This directly contradicts the instruction’s
assertion that they "pleaded guilty to a crime
arising out of the same occurrence" as Collins’s
crimes. Indeed, Peters never testified that he
had any involvement in the Collins operation and
testified only that he had purchased
methamphetamine from Collins in 1992, two years
before his own arrest. Jury Instruction No. 14
was factually incorrect.
Nonetheless, when viewed in the light most
favorable to the government, the district court’s
error here was harmless, though narrowly so. As
Collins acknowledges, the trial record is clear
that Collins was not involved with the Daugherty
conspiracy. Collins’s indictment alleges that
Collins conspired with Wegman, Allen, Mabry and
Hiland, but neither the indictment nor the jury
instructions mention Daugherty even once. At
trial, the witnesses distinguished the Collins
and Daugherty drug-dealing operations and
characterized Collins and Daugherty as
competitors. Allen testified that Collins, her
grandfather, instructed her "[n]ot to do anything
with Dale," and Mabry confirmed that Collins had
told Allen that "dealing with Dale Daugherty
would take food off [Collins’s] table." Peters
testified that Wegman and Collins had quarreled
over money and Wegman "was looking for the new
money man." As a result, Wegman stopped dealing
with Collins, and "[Wegman and Daugherty] got
together and started making their own trips."
Similarly, another member of the Daugherty
conspiracy, Ola Redes, testified that she had
worked for Daugherty but that Collins was not
involved and she had never seen Collins with any
methamphetamine. Outside the presence of the
jury, Collins’s attorney agreed that Wegman’s and
Mabry’s testimony established Daugherty as "a
competitor of the defendant" and stated that "[he
did not] think there is anything to connect Mr.
Daugherty in any conspiracy with [Collins]." The
government agreed that it was "not alleging that
Mr. Daugherty . . . was part of the conspiracy in
which the defendant was charged." Despite the
erroneous jury instruction, it is unlikely that
the jury would confuse the Collins and Daugherty
conspiracies or believe that Collins participated
in the criminal activity of the Daugherty
operation.
When viewed in this context, the jury
instructions were not so misleading that the jury
would likely be confused or misled by the
district court’s error. Jury Instruction No. 14
was merely a cautionary instruction directed to
the credibility of the witnesses, not to
Collins’s guilt or culpability. Although the
instruction was inaccurate, the thrust of the
instruction was that the prosecution witnesses
had cut deals with the government and possessed
incentives to incriminate Collins; the
instruction did not pose as a direction on
Collins’s involvement in criminal activity. In
addition, we assess jury instructions "when
considered in their entirety and not in
isolation," Reed v. Union Pacific R.R. Co., 185
F.3d 712, 715 (7th Cir. 1999), and the other
instructions make clear that the jury was
required to evaluate Collins’s guilt
independently from the guilt of the testifying
co-conspirators. Jury Instruction No. 14 itself
commands that "the guilty pleas of Earl Jackson,
Hiland III, Robin Allen, David Mabry and Michael
Peters are not to be considered as evidence
against the defendant." Jury Instruction No. 21
directed, "In determining whether the defendant
became a member of the conspiracy you may
consider only the evidence concerning the acts
and statements of that particular defendant."
Although the instruction was factually
inaccurate, the trial sufficiently established
that the two men were competitors rather than
collaborators, and as a result, we find that the
jury was not improperly influenced by the
inaccurate cautionary instruction.
For the same reason, the faulty jury
instruction did not constructively amend
Collins’s indictment or create an improper
variance between the indictment and proof. To
establish either claim, Collins must show that he
was convicted based on proof running to the
Daugherty conspiracy, rather than the conspiracy
for which he was indicted. See United States v.
Willoughby, 27 F.3d 263, 265-66 (7th Cir. 1994).
As we have explained, we believe that the jury
was not confused by the incorrect association in
Instruction No. 14 between the Daugherty and
Collins conspiracies. The trial established that
the two operations were independent and that
Collins had no involvement with the Daugherty
conspiracy to which Allen and Mabry had pleaded
guilty. The government provided sufficient
evidence relating to the Collins conspiracy that
"a reasonable trier of fact could have found
beyond a reasonable doubt the existence of the
single conspiracy charged in the indictment."
United States v. Townsend, 924 F.2d 1385, 1389
(7th Cir. 1991). Allen and Mabry testified that
they dealt extensively with Collins in
distributing methamphetamine but explained that
Collins and Daugherty were competitors. Hiland
testified that he purchased methamphetamine from
Collins and also made at least two trips to buy
methamphetamine for Collins from suppliers. Lavon
Logan testified that Collins provided him
methamphetamine, which Logan then distributed on
the street. This testimony, in addition to
testimony from other witnesses, co-conspirator
statements and corroborating phone records,
provides sufficient evidence to support Collins’s
conviction for knowingly and intentionally
conspiring to distribute a controlled substance
with Wegman, Allen, Mabry and Hiland, as his
indictment charges.
B. Silvern Instruction
In Allen v. United States, 164 U.S. 492, 501
(1896), the Supreme Court upheld a trial court’s
issuance to a deadlocked jury of a "dynamite"
supplemental jury instruction, which encouraged
the jurors to reconsider their individual
positions and asked minority dissenters whether
they "might not reasonably doubt the correctness
of a judgment which was not concurred in by the
majority." Subsequent to Allen, lower courts and
commentators vigorously debated whether the
efficiency gains of avoiding mistrials outweigh
the risks of prejudice and jury coercion flowing
from the use of dynamite charges. See, e.g.,
United States v. Johnson, 432 F.2d 626, 630-34
(D.C. Cir. 1970); United States v. Fioravanti,
412 F.2d 407, 414-20 (3d Cir. 1969); Note, Due
Process, Judicial Economy and the Hung Jury: A
Re-Examination of the Allen Charge, 53 Va. L.
Rev. 123 (1967); Note, Deadlocked Juries and
Dynamite: A Critical Look at the "Allen Charge,"
31 U. Chi. L. Rev. 386 (1964). Faced with this
controversy in United States v. Silvern, 484 F.2d
879, 883 (7th Cir. 1973), we established a clear
procedure for the issuance of supplemental jury
instructions to deadlocked juries by providing a
model dynamite charge and explaining that it may
be given to the jury after deliberations reach a
deadlock, provided that "a supplemental
instruction is deemed necessary and provided that
the . . . instruction has been given prior to the
time the jury has retired." Id.
Collins agrees that the dynamite instruction
given in this case comports with the model
instruction in Silvern, but he argues that the
district court committed reversible error by
issuing the dynamite instruction without first
having included the instruction in the initial
jury charge before deliberations commenced.
Indeed, United States v. Brown, 634 F.2d 1069,
1070 (7th Cir. 1980), holds that the trial court
must include the Silvern instruction in its
initial charge to the jury, as the district court
here did not.
However, Collins waived this objection to the
timing of the Silvern instruction in most
unmistakable and unequivocal terms. The court and
both opposing parties were painfully aware of the
absence of the Silvern instruction in the court’s
initial jury charge and discussed whether to give
the supplemental instruction after the jury
deadlocked. Anxious to reach a verdict and avoid
retrial, both parties consented on the record to
the issuance of the Silvern instruction. Collins
attorney explained, "I believe that the law is
and still is in the Seventh Circuit that it’s
error to give that instruction after the jury has
been instructed if it wasn’t tendered originally.
We would waive any objection of to the giving of
that instruction. I’ve discussed this with Mr.
Collins and we would certainly put our waiver on
the record." The court then thrice asked Collins
directly whether he consented to the Silvern
instruction, and each time Collins responded,
"Yes, sir." A claim now regarding the timing of
the Silvern instruction is therefore not merely
forfeited, but affirmatively waived. As a result,
this issue is not subject to appellate review at
all because "there is technically no ’error’ to
correct." United States v. Ross, 77 F.3d 1525,
1542 (7th Cir. 1996); see also United States v.
Olano, 507 U.S. 725, 733 (1993).
In Silvern, we mentioned that we were
exercising our "supervisory power" over the
district courts of this Circuit, Silvern, 484
F.2d at 882, but this does not avert our
conclusion. Collins proposes that the Silvern
timing rule was a supervisory directive to the
district courts and cannot be waived by
defendants. Collins cites no authority for his
ambitious claim, and we have found none. As
Silvern itself notes, a primary concern driving
anxiety over dynamite charges is the due process
rights of the parties to a fair trial. Silvern,
484 F.2d at 882 (explaining in that case "neither
the wording of the supplemental charge . . . nor
the timing and circumstances surrounding the
charge violated defendant’s constitutional
rights"). When the parties definitively express
their consent to a dynamite charge, despite the
fact that it had not been included in the initial
jury charge, no due process concerns inhere and
the district court may find waiver and issue the
instruction. See United States v. Clayton, 172
F.3d 347, 351-52 (5th Cir. 1999) (enforcing
forfeiture of objections to an Allen charge);
United States v. Barbioni, 62 F.3d 5, 7 n.2 (1st
Cir. 1995); United States v. Nguyen, 28 F.3d 477,
484 (5th Cir. 1994); United States v. Meuli, 8
F.3d 1481, 1487 (10th Cir. 1993). Any deviation
from Silvern is not necessarily reversible error.
For example, in United States v. Sblendorio, 830
F.2d 1382, 1388 (7th Cir. 1987), the district
court gave a dynamite charge that strayed from
the model instruction dictated by Silvern, but we
noted that the defendant did not object. We
evaluated the court’s decision for plain error
and found none, even though the language of
"Silvern does not admit of exceptions." Id. True,
we invoked our supervisory authority in Silvern
to set a bright-line rule with an eye toward
avoiding redundant and time-consuming appeals to
consider every minute permutation of the Silvern
instruction. See Sblendorio, 830 F.2d at 1388.
However, that concern is patently absent in cases
like this in which the defendant affirmatively
waived his objections to the timing of the
Silvern instruction.
C. Witness Bolstering
Over Collins’s objections, the government
introduced into evidence cooperation and plea
agreements for ten government witnesses including
Allen, Mabry, Hiland, Peters, Logan and Redes.
All but one agreement stipulated that the witness
agreed to provide "complete and truthful"
information and trial testimony, and to reinforce
this point, the government elicited testimony
from each witness confirming that he or she was
obligated by the agreement to be truthful at
trial. Collins argues that the district court
erred by admitting the agreements into evidence
because it impermissibly enhanced the credibility
of the witnesses in the jury’s eyes. The
admission of the plea agreements was an
evidentiary decision, which we review for abuse
of discretion. See United States v. Lewis, 110
F.3d 417, 422 (7th Cir. 1997).
Although the government may present evidence
about its witnesses’ plea agreements and their
concomitant obligations to be truthful, the
district court should not permit the government
"unnecessarily repetitive references to
truthfulness." Lewis, 110 F.3d at 421. However,
we held in United States v. Thornton, 197 F.3d
241, 252 (7th Cir. 1999), that it was not an
abuse of discretion to admit plea agreements
containing even more numerous references to
truthfulness than in the agreements admitted
here. The agreements in Thornton required "full,
complete and truthful information and testimony"
from the witnesses, reserving the government’s
right to withdraw the plea agreement and
prosecute for perjury if the witness testified
falsely. Id. at 251. We found that the
agreements, plus proffer letters with similar
terms, "merely laid out the terms and conditions
of the agreements" and "the jury’s role as
independent fact finder was not undermined." Id.
at 252; see also Lewis, 110 F.3d at 421; United
States v. Renteria, 106 F.3d 765, 767 (7th Cir.
1997). Admission of the plea agreements for the
government’s witnesses in this case was not an
abuse of discretion, and as in Thornton, the
court’s cautionary jury instructions removed
potential prejudice by directing the jury to
consider the government witnesses’ testimony
"with caution and great care." Thornton, 197 F.3d
at 252 n.4; United States v. Robbins, 197 F.3d
829, 842 (7th Cir. 1999). Remember, however, that
Thornton reproved prosecutors for coming
"perilously close to being unnecessarily
repetitive" and to "think twice before risking
reversal." Thornton, 197 F.3d at 252-53.
Collins’s trial preceded Thornton’s admonitions,
and the government promised at oral argument that
it had modified its trial modus operandi since
Thornton. We expect to see appropriate adjustment
to the government’s practice in subsequent cases.
In addition, Collins argues that the government
impermissibly vouched for the credibility of its
witnesses during opening statements and closing
argument by referring to the plea agreement
requirement of complete truthfulness. A
prosecutor may not vouch for the credibility of
a witness by either expressing a personal belief
in the truthfulness of a witness or implying that
facts not before the jury lend credibility to a
witness. See Thornton, 197 F.3d at 252. The
government did not commit either form of
impermissible vouching in this case because it
declared only that the government witnesses had
entered plea agreements requiring truthfulness
and that the jury ought to consider that fact
when evaluating their testimony. As in United
States v. Renteria, 106 F.3d at 767, the plea
agreements were in evidence and the government
"was free to invite the jury to draw a particular
inference from this evidence." Indeed, Collins
did not object to these references to the plea
agreements, and it was not error for the district
court to permit them.
D. Mandatory Life Sentence
Collins challenges the constitutionality of the
mandatory life sentence imposed by the "three-
strikes" provision in 21 U.S.C. sec. 841, and we
review these challenges de novo. See United
States v. Black, 125 F.3d 454, 458 (7th Cir.
1997). Collins, however, concedes that his
arguments under the Equal Protection, Double
Jeopardy, Due Process and Cruel and Unusual
Punishment Clauses were rejected in United States
v. Wicks, 132 F.3d 383, 387-90 (7th Cir. 1997),
and United States v. Washington, 109 F.3d 335,
337-38 (7th Cir. 1997).
Washington also addressed and rejected Collins’s
argument that the three-strikes mandatory life
sentence violates the Ex Post Facto Clause. Id.
at 338. Carmell v. Texas, ___ U.S. ___, 120 S. Ct.
1620 (2000), does not derogate Washington.
Carmell overturned under the Ex Post Facto Clause
a criminal statute that reduced the quantum of
trial evidence required to convict the defendant
for sexual assault from the higher level of
evidence required by law when his offense was
committed. Carmell, 120 S. Ct. at 1643. Collins
makes a different claim, one squarely rejected in
Washington, 109 F.3d at 338, and distinguished in
Carmell, 120 S. Ct. at 1627 (differentiating ex
post facto laws that change punishment from ex
post facto laws that change the legal rules of
evidence). Like the defendant in Washington, he
argues that the three-strikes provision violates
the Ex Post Facto Clause because his previous two
drug offenses occurred before the enactment of 21
U.S.C. sec. 841. We see no reason to overrule
Washington now.
III. Conclusion
For the foregoing reasons, we Affirm the
decisions of the district court.
/1 The court gave the following "dynamite"
instruction:
The verdict must represent the considered
judgment of each juror. Your verdict, whether it
be guilty or not guilty, must be unanimous.
You should make every reasonable effort to reach
a verdict. In doing so, you should consult with
one another, express your own views, and listen
to the opinions of your fellow jurors. Discuss
your differences with an open mind. Do not
hesitate to re-examine your own views and change
your opinion if you come to believe it is wrong.
But you should not surrender your honest beliefs
about the weight or effect of evidence solely
because of the opinions of your fellow jurors or
for the purpose of returning a unanimous verdict.
The twelve of you should give fair and equal
consideration to all the evidence and deliberate
with the goal of reaching an agreement which is
consistent with the individual judgment of each
juror.
You are impartial judges of the facts. Your sole
interest is to determine whether the Government
has proved its case beyond a reasonable doubt.
Now with that additional instruction, I would ask
that you return to the jury room and please
continue your deliberations. Thank you very much.