Browning

MEMORANDUM **

1. The requirement that the district court provide a unanimity instruction in a continuing criminal enterprise case is “expressly limited to a situation where some of the supervisees, presented as such by the government to the jury, could not legally have been supervisees.” United States v. LeMaux, 994 F.2d 684, 688 (9th Cir.1993) (citation omitted). Therefore, even if Elrader Browning’s claim was not procedurally defaulted, no unanimity instruction was required in this case, since the government did not present any nonsupervisees to the jury. Listing individuals in the indictment is not the same as presenting them to the jury. See id.

2. Similarly, irrespective of Browning’s potential procedural default, the government properly distinguished between potential supervisees and mere suppliers and purchasers of narcotics, negating any need for a managerial authority instruction. See United States v. Barona, 56 F.3d 1087, 1097 (9th Cir.1995).

3. Since Browning’s ineffective assistance of appellate counsel claims fail on the merits, we need not address whether the district court erred in denying the motion to amend the petition to include those claims. Counsel’s…