United States v. Gary Jerome

concurring:

I concur in the judgment. I would reverse the continuing criminal enterprise conviction because an essential element of such a conviction may not have been met: that the jury unanimously agree as to the identity of five people whom Jerome organized, managed or supervised, within the meaning of the statute. There are two problems here.

First, as the government conceded at oral argument before us, some of the people named by the prosecutor during his closing argument to the jury—the suppliers of Jerome’s suppliers—could not have been organized, managed or supervised by Jerome under any reading of the statute. Yet the jurors may have counted some of these toward the five they concluded Jerome had organized. The jury instructions did not clarify that “suppliers of suppliers” could not meet the statutory definition; in fact, the instructions may have suggested the contrary. Instruction 46, given over the defendant’s objection, stated that “[t]he ordinary meaning of the word ‘organizer’ does not necessarily carry an implication that to be an ‘organizer’ one must exercise control over others.” CR 320, Instruction 46. Based on this instruction, the jurors may have concluded…

Gary Jerome appeals his conviction of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 , his conviction of conspiracy in violation of 21 U.S.C. § 846 and various related drug felonies. We affirm all his convictions with the exception of his conviction for engaging in a continuing criminal enterprise. The pivotal issue in reversing this conviction is whether Jerome was shown to have acted in concert with five persons whom he organized.

BACKGROUND

Gary Jerome was a dealer in narcotics in the San Francisco and Lake Tahoe area for at least 10 years prior to his arrest in 1986. He bought from wholesalers and then dispensed drugs to a variety of purchasers who included, among others, the employees of Lucky Stores holding an annual party, a substantial number of the members of the medical staff of Lake Tahoe Hospital and, eventually, undercover agents of the Drug Enforcement Administration (DEA).

Beginning in 1984 John Wooster was a major supplier of Jerome. Wooster in turn received his drugs from Frank Sanders, Oscar Larrozolo and Ed Devaney. Beginning in 1985 Jerome was also supplied with drugs by Joe Kinney and his wife Monica. They in turn obtained…

924 F.2d 170 UNITED STATES of America, Plaintiff-Appellee, v. Gary JEROME, Defendant-Appellant. No. 87-1386. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 13, 1990. Decided Jan. 24, 1991. George J. Cotsirilos, San Francisco, Cal., for defendant-appellant. L. Anthony White, Asst. U.S. Atty., Reno, Nev., for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before CHAMBERS, KOZINSKI and NOONAN, Circuit Judges. NOONAN, Circuit Judge: 1 Gary Jerome appeals his conviction of engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 , his conviction of conspiracy in violation of 21 U.S.C. Sec. 846 and various related drug felonies. We affirm all his convictions with the exception of his conviction for engaging in a continuing criminal enterprise. The pivotal issue in reversing this conviction is whether Jerome was shown to have acted in concert with five persons whom he organized. BACKGROUND 2 Gary Jerome was a dealer in narcotics in the San Francisco and Lake Tahoe area for at least 10 years prior to his arrest in 1986. He bought from wholesalers and then dispensed drugs to a variety of…