472 F.

3d 89

UNITED STATES of America

v.
Jason KOREY, Appellant.
No. 05-3840.

United States Court of Appeals, Third Circuit.

Argued October 25, 2006.
Filed January 4, 2007.

Karen S. Gerlach, Lisa B. Freeland (Argued), Office of Federal Public

Defender, Pittsburgh, PA, Attorneys for Appellant.
Laura S. Irwin (Argued), Office of United States Attorney, Pittsburgh,
PA, Attorneys for Appellee.
Before SMITH, FISHER and COWEN, Circuit Judges.
FISHER, Circuit Judge.

I.

Jason Korey appeals from his conviction on one count of using a firearm
during and in relation to a conspiracy to distribute cocaine. He argues (1) that
the jury instructions concerning conspiracy violated his right to due process
because they contained an impermissible mandatory presumption, (2) that his
Sixth Amendment right to be present at his trial was violated when the judge
and the prosecutor had an ex parte meeting about an improper comment the
prosecutor made in the courtroom, (3) that his right to a fair trial was violated
both by the prosecutor's apology for foul language that bolstered the
prosecutor's reputation and by improper statements during closing argument,
and (4) that the District Court erred in excluding evidence that Korey had been
acquitted in an earlier murder trial a trial that had been mentioned by a
potential juror during jury selection. For the reasons stated below, we agree that
the jury instructions contained an impermissible mandatory presumption that
was not harmless beyond a reasonable doubt. Consequently, we will vacate
Korey's conviction.

For a number of years in the late 1990s, Billy Kuhn and Ray Erfort worked
together as cocaine and crack dealers in the South Hills of Pittsburgh. Jason
Korey knew both men, and was aware that they were drug dealers.

When Erfort was arrested in 1998, he attempted to prevent the police from
finding his drug stash by asking Kuhn to collect it. Kuhn gathered 29 ounces of
cocaine with a street value of $30,000. After his release from jail, Erfort asked
Kuhn to return the cocaine, but Kuhn refused.

According to the Government, Erfort later approached Korey, who was

seventeen years old at the time, and offered him cocaine in exchange for killing
Kuhn. Korey, in turn, obtained a .22-caliber handgun with a silencer from a
friend, ostensibly to use in the murder. According to the Government, he then
either murdered Kuhn himself on the morning of July 9, 1999, or had his friend
Dave Clemons murder Kuhn for him on that date. However, after police
discovered the body, they charged Ray Erfort and Milton Morgan with Kuhn's
murder.

On October 22, 1999, the police, who had an outstanding warrant for Korey's
arrest based on other circumstances, received an anonymous telephone tip
concerning his whereabouts. They arrested him based on the outstanding
warrant. At the time of his arrest, Korey had illegal drugs and other contraband
on his person, and the arresting officers prepared charges against him based on
this contraband.

Later that day, Korey, while still in police custody, devised a deal to keep
himself out of jail for possession of the contraband: he offered to provide
information about Kuhn's murder if they would agree to keep him out of jail on
the present charges. After agreeing to this deal in writing, Korey told the
officers that Erfort had paid him cocaine to kill Kuhn, and that he had turned to
Clemons to carry out the murder for him. He also told the police where he and
Clemons had hidden the murder weapon. The police recovered the murder
weapon from the location Korey described.

Following this confession, the murder charges against Erfort and Morgan were
dropped, and Korey was charged. However, he was acquitted of the murder
charge after a state court trial on November 2, 2000.

Several years later, Korey was indicted on federal firearms charges stemming
from the incident. He pleaded guilty to possessing a silencer and possession of
a firearm by a drug user or addict. As to the remaining charges, he was

acquitted of one count of possessing a stolen firearm, and convicted of using a

firearm during and in relation to a conspiracy to distribute cocaine. It was
during the trial for these charges that the alleged errors Korey complains of
occurred.
9

Before the trial began, the Government filed a motion in limine to exclude
evidence that Korey had been acquitted of Kuhn's murder in state court. The
District Court heard argument on the issue, but reserved judgment. Later, after
the jury venire was sworn, the group of prospective jurors were asked whether
they knew Jason Korey. One of the prospective jurors responded in the
presence of other jurors that he knew a Jason Korey who "was allegedly
involved in a murder." This same juror expressed reluctance to serve on the
jury because of his "prior experience with Mr. Korey, and [because he was]
aware of some previous allegations." Although this prospective juror was
dismissed for cause, defense counsel1 argued that the jury panel should be
dismissed. The District Court denied this request and also determined, over
Korey's objection, that it would not admit evidence of Korey's state court
acquittal.

10

During the trial, one of the Government's police witnesses had trouble recalling
events surrounding his search for a stolen weapon. When the witness was
excused to review his reports in the hallway, defense counsel requested to see
what he was reviewing. After the District Court indicated that defense counsel
would be able to review a copy for cross examination, the prosecutor
responded with inappropriate language in the jury's presence. The District
Judge demanded to see the prosecutor in his chambers. When the attorney for
the Government emerged, he recited the following apology in front of the jury
on the District Court's request:

11

Your Honor, before I begin with the testimony of this witness, I have some
remarks for you, for Mr. Hackney, and for the Jury.

12

I have been an [A]ssistant U.S. [A]ttorney in this district since 1991, and I have
appeared in front of you as well as other judges in this Court, and you should
know that even though this is how I make my living, it is more than a living to
me, and it is something that's important to me, and I take pride in what I do and
who I do it for and in the way I do it.

13

I try to try these cases to the best of my ability, not only for the convenience of
the jury, but with respect for the Court, with respect to the parties, and with
respect to the witnesses and anybody else who might be involved in the system.

14

That broke down today. I expressed frustration because of something that was
happening here. I want the Court to know that I was not expressing irritation at
you as the judge, at Mr. Hackney as opposing counselwe have been friends
for many yearsor as a measure of disrespect towards this Court or for this
jury.

15

It was inexcusable, but it was borne in a moment of frustration in the

interruption of the trial, which is something that I would liked to have gone
more smoothly for the benefit of all concerned.

16

You have known me for many years, I have been in and out of the courtroom. I
hope you understand that this was not a picture of me at my best, but it was just
a moment of frustration. I am sincerely sorry for it.

17

If anyone was offended by it, I want you to know now that I would not have
done it otherwise, and I'm extremely sorry.

18

The following morning, defense counsel objected to this speech and asked for a
mistrial, but was overruled by the District Court.

19

As the trial progressed, it became increasingly clear that the two sides had
different views about what constituted a drug distribution conspiracy. The
Government's theory was that a jury could find that Korey was guilty of using a
firearm during and in relation to a drug conspiracy because (1) he agreed to
commit a murder in exchange for cocaine, and (2) in order to avenge a drug ripoff, Korey used the .22-caliber handgun either by shooting Billy Kuhn or by
giving it to Clemons to do so. Defense counsel, on the other hand, maintained
that agreeing to provide a service even an unlawful onein exchange for
cocaine constituted a buyer-seller relationship and not a drug distribution
conspiracy.

20

On the final day of the trial, counsel met with the District Judge to discuss the
jury instructions. Over objections by the defense, the District Court determined
that it would instruct the jury that Korey was, as a matter of law, a member of a
drug distribution conspiracy if he either (1) agreed to accept cocaine in payment
for killing Billy Kuhn, or (2) agreed to murder Billy Kuhn for Ray Erfort in
order to avenge Kuhn's theft of Erfort's cocaine.

21

After the jury deliberated, Korey was acquitted of possessing a stolen firearm
and convicted of using a firearm during and in relation to a drug distribution
conspiracy. He now appeals, asking this Court to order a new trial based on

four errors: (1) improper jury instructions, (2) a violation of his right to be
present at an ex parte meeting between the prosecutor and the judge, (3) the
prosecutor's prejudicial comments in his apology and during closing argument,
and (4) the District Court's improper exclusion of evidence of his acquittal in
the state court trial for Billy Kuhn's murder.
II.
22

Korey's first complaint is that the jury instructions used in his trial were
erroneous. Specifically, he argues that the instructions concerning the count for
using a firearm during and in relation to a drug conspiracy contained an
erroneous conclusive presumption. That presumption, he contends, relieved the
Government of its duty to prove all essential elements of the crime beyond a
reasonable doubt. We exercise plenary review over challenges to the legal
standards expressed in jury instructions. See, e.g., United States v. Zehrbach, 47
F.3d 1252, 1260 (3d Cir.1995).

23

Due process requires that the Government prove every element of the charged
offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct.
1068, 25 L.Ed.2d 368 (1970). Accordingly, jury instructions that relieve the
Government of this burden violate a defendant's due process rights. Carella v.
California, 491 U.S. 263, 265, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989). The
inquiry is whether the court's instruction constituted a mandatory presumption
by "directly foreclos[ing] independent jury consideration of whether the facts
proved established certain elements of the offense with which [the defendant]
was charged." Id. at 266, 109 S.Ct. 2419.

24

In this case, Korey was charged with violating 18 U.S.C. 924(c)(1)(A), which
punishes "any person who, during and in relation to any crime of violence or
drug trafficking crime . . . uses or carries a firearm." The drug trafficking crime
charged by the Government in relation to 924 here is conspiracy to distribute
cocaine under 21 U.S.C. 846 and 841(a)(1).

25

It is clear from our prior cases that an important element of a conspiracy to

distribute cocaine is that the parties shared a common goal. In United States v.
Cartwright, 359 F.3d 281 (3d Cir.2004), for example, we considered a
convicted criminal defendant's claim that the guilty verdict against him for
conspiracy to distribute cocaine was not supported by sufficient evidence.
Describing what the evidence must prove, we explained that "[o]ne of the
requisite elements the government must show in a conspiracy case is that the
alleged conspirators shared a `unity of purpose', the intent to achieve a common
goal, and an agreement to work together toward the goal." Id. at 286 (quoting

United States v. Wexler, 838 F.2d 88, 90-91 (3d Cir.1988)); see also United
States v. Gibbs, 190 F.3d 188, 197 (3d Cir.1999) ("To prove a conspiracy, the
government must establish a unity of purpose between the alleged conspirators,
an intent to achieve a common goal, and an agreement to work together toward
that goal."). In other words, because the conspiracy charged here is a
conspiracy to distribute cocaine, the Government must prove beyond a
reasonable doubt that Korey shared a goal with his co-conspirators to further
the purpose of distributing cocaine.
26

The jury instructions, however, did not require the jury to find a unity of
purpose. Rather, the District Court instructed jurors that:

27

The Government in this case alleges that Mr. Korey committed the crime of
conspiracy to distribute cocaine and did so in two separate ways.

28

First, when he agreed to accept drugs from Ray Erfort as payment for the
murder of Billy Kuhn. I instruct you that if you find that the defendant agreed
to accept cocaine in payment for killing Billy Kuhn, that is a conspiracy to
distribute cocaine.

29

And, second, the Government alleges that Mr. Korey agreed to murder Billy
Kuhn for Ray Erfort in order to avenge Kuhn's theft of Erfort's cocaine. I
instruct you that if you find that defendant agreed to murder Billy Kuhn for
Ray Erfort in order to avenge Kuhn's theft of Erfort's cocaine, that is also
conspiracy to distribute cocaine.2

30

Under these instructions, all the jurors had to find was that Korey agreed to
accept cocaine in payment for killing Kuhn. They did not have to consider
whether the Government met its burden of proof in establishing a unity of
purpose. Their verdict on the conspiracy charge was to be the same whether or
not they believed the government had proven beyond a reasonable doubt that
Korey and Erfort shared a common goal to distribute cocaine. This is certainly
at odds with the definition of conspiracy we expressed in Cartwright. 359 F.3d
at 286.

31

Defending the instructions, the Government argues that the statements at issue
do not constitute error because other parts of the instructions discussed the
complete definition of a conspiracy. Indeed, the instructions did provide a
general definition of conspiracy, including an explanation that "[t]here must be
intentional participation by the defendant in the specific conspiracy charged,
with a view to furthering the common design and purpose of the conspiracy."

However, this complete and correct statement of the law does not overcome the
language that followed, which amounted to an improper mandatory
presumption. Even if jurors took to heart the general definition of a conspiracy,
they were instructed that if they found "that the defendant agreed to accept
cocaine in payment for killing Billy Kuhn, that is a conspiracy to distribute
cocaine." Regardless of what the District Court may have advised elsewhere,
this statement "directly foreclosed independent jury consideration of whether
the facts proved established certain elements of the offense with which [the
defendant] was charged." Carella, 491 U.S. at 266, 109 S.Ct. 2419. Although
the jury was told that a conspiracy required a shared purpose, it was also told
that Korey's actions amounted to participation in a conspiracy whether or not
they believed that he shared the goal of furthering Erfort's cocaine distribution
operation. If the jurors believed that he agreed to accept cocaine in exchange
for killing Kuhn, that was the end of their inquiry.
32

The Government also contends that the instructions were not faulty because by
agreeing to accept cocaine as payment for murdering Kuhn, Korey was serving
an enforcement role in the conspiracy to distribute cocaine. As an initial matter,
there is an important difference between considerations of the sufficiency of
evidence and the propriety of jury instructions. Even if there was ample
evidence that Korey shared a common goal to advance Erfort's scheme to
distribute cocaine, the jury instructions must not command the jury in a manner
that forecloses their consideration of that element of the crime. Carella, 491
U.S. at 266, 109 S.Ct. 2419.

33

But assuming the Government is arguing not about the sufficiency of evidence,
but that the jury instructions were correct as a matter of law because the
mandatory presumption was proper, the law on point simply does not comport
with the Government's argument. Although we have recognized that an
enforcement role is part of a conspiracy to distribute drugs, we have always
rested on a showing that the enforcer shared the goal of the overarching drugdistribution conspiracy. In United States v. Gonzalez, 918 F.2d 1129 (3d Cir.
1991), for example, we considered, in the context of a challenge to the
sufficiency of evidence supporting a conviction, whether a defendant was part
of a conspiracy to distribute cocaine based on serving as the "muscle" for the
operation. As we explained:

34

Considering the placement of [the defendant's] gun, the fact that he was in the
kitchen with [the co-conspirators] at the time of the arrest and his act of
blocking the Detective's way out of the apartment, it was reasonable for the
jury to conclude that [the defendant] was the "muscle" of the group and he was
there to protect the money and the cocaine. In addition, [the defendant] was

present the night before the transaction when [the co-conspirators] tried to store
the cocaine at [another's] apartment, and [one of the coconspirators] "invited"
him to be present at the apartment again the next day while the transaction was
taking place in the back bedroom.
35

Id. at 1136. In other words, based on the circumstances, a jury could have
inferred that the defendant shared the goal of making sure cocaine was
distributed. The defendant's specific role was to provide the "muscle" to protect
the transactions, but his overarching goal was clearly the same as other
members of the conspiracy: distribution of cocaine.

36

The Government also attempts to rely on the Fifth Circuit case of United States
v. Baptiste, 264 F.3d 578 (5th Cir.2001). It claims that Baptiste is analogous to
the case before us because the court found a conspiracy based on the fact that
"many of the appellants responded to the murders of their friends with killing
sprees against the rival group of drug dealers." Id. at 587.

37

However, in reviewing a defendant's conviction to determine whether there was

sufficient evidence of a drug conspiracy and whether a shooting had occurred in
relation to that conspiracy, the Fifth Circuit relied heavily on circumstantial
evidence of an agreement related to drug distribution that reflected a shared
goal. Id. at 586-88. The court found a conspiracy based on the fact that (1) "
[t]he police repeatedly arrested most of the appellants for selling drugs in a
small area," (2) "[w]itnesses testified that a few of the appellants provided
drugs to the others," (3) one of the appellants "interrupted a drug sale to an
undercover agent," and (4) "the defendants shared a motive to profit from drug
sales, and they depended upon each other because they warned each other of
police activity." Id. at 587. In the next paragraph, the court mentioned that "
[t]here was considerable other evidence of an agreement," including the fact
that "many of the appellants responded to the murders of their friends with
killing sprees against the rival group of drug dealers." Id. Finally, as to the issue
of whether the firearm was used in relation to the conspiracy, the court
explained that the Government "had to show that these appellants could have
used the weapons to protect or facilitate their drug operation, and that the
weapons were in some way connected with drug trafficking." Id. at 588.

38

If anything, Baptiste further calls into question Korey's jury instructions. The
Fifth Circuit did not find a conspiracy simply because many of the defendants
had murdered members of a rival group of drug dealers; rather that point was
added after finding sufficient evidence of a "shared . . . motive to profit from
drug sales" based on a pattern of behavior. Id. at 587.

39

In the present case, however, the jury instructions commanded the jury to find a
conspiracy without looking into the overarching context to find a shared
motive. All the Government had to prove was that Korey "agreed to accept
cocaine in payment for killing Billy Kuhn." The jury was not permitted to
consider whether the Government proved a "unity of purpose" to distribute
cocaine. See Gibbs, 190 F.3d at 197. Under the instructions, Korey could have
been found guilty even if he only agreed to murder Kuhn to obtain drugs for
himself and had no interest in whether Erfort ever made another drug sale. It is
possible that Korey killed Kuhn because of some enforcement role he was
playing in Erfort's cocaine distribution scheme.3 But the instructions did not
require the jury to so find in order to convict him. All the Government had to
prove was that Korey accepted drugs as a payment for murdering Kuhn. This
relieved the Government of its burden to prove beyond a reasonable doubt that
there was a shared goala vital aspect of a conspiracy. As such, the jury
instructions here violated Korey's due process rights. See Carella, 491 U.S. at
265, 109 S.Ct. 2419 (1989).

III.
40

Not all errors mandate reversal. When the error found is of a constitutional
nature, a court may nonetheless uphold the conviction if the error was
"harmless beyond a reasonable doubt." Sullivan v. Louisiana, 508 U.S. 275,
279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). In other words, the Government
must show "`beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.'" Id. (quoting Chapman v. California, 386
U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). As the Supreme Court
explained, "[t]he inquiry . . . 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." Id.

41

In Whitney v. Horn, 280 F.3d 240 (3d Cir.2002), we reviewed the propriety of
the jury instructions used to find a defendant guilty of first degree murder. The
instruction at issue provided that:

42

Thus, you cannot find the defendant guilty of first degree murder unless you
are satisfied beyond a reasonable doubt that the defendant was so intoxicated at
the time that he was incapable of judging his acts and their consequences or
incapable of forming a willful, deliberate and premeditated design to kill.

43

Id. at 254-55. In fact, this was an incorrect statement of the law: it should have
read "was not so intoxicated." While holding that this jury instruction as to the
defendant's state of mind was in error, we observed that "[a] verdict may still

stand, despite erroneous jury instructions, where 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 the
injury.'" Id. at 260 (quoting Rose v. Clark, 478 U.S. 570, 580-81, 106 S.Ct.
3101, 92 L.Ed.2d 460 (1986)). We went on to determine that "[f]aced with th[e]
evidence we do not understand how any reasonable jury could have had any
doubt about whether Whitney was too inebriated to form the intent to kill. The
evidence of Whitney's mental state was nothing short of overwhelming." Id. at
261 (emphasis in original). Not only was there strong circumstantial evidence
of his intent based on the number and severity of the wounds to the victim, but
the defendant had announced his intent to kill. Id. at 259; see also Neder v.
United States, 527 U.S. 1, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (finding
that a failure to instruct the jury as to an element of the charged crime was
harmless where evidence concerning the omitted element was overwhelming
and uncontested).
44

In contrast, we are unable to say that "the guilty verdict actually rendered in this
trial was surely unattributable to the error." Sullivan, 508 U.S. at 279, 113 S.Ct.
2078. The only evidence presented by the Government concerning Korey's
participation in the cocaine distribution conspiracy is that, until Erfort's arrest in
1998, Kuhn and Erfort had worked together for years as cocaine and crack
dealers, that Korey knew both men and knew they were drug dealers, and that
he considered Kuhn a friend. There was no evidence that Korey shared the goal
of cocaine distribution at all, or that his involvement with Kuhn and Erfort was
anything other than personal. Even if we were to determine that this evidence,
coupled with Korey's agreement to accept cocaine in payment for killing Billy
Kuhn, is sufficient to find that Korey was part of a drug distribution conspiracy,
it is far from overwhelming. We cannot say beyond a reasonable doubt that the
error did not contribute to the verdict rendered. Thus, the error was not
harmless.

IV.
45

Because we have determined that Korey's conviction must be vacated on the

basis of the jury instructions, it is unnecessary for us to reach the remainder of
his claims. However, we do wish to briefly comment on the problematic
apology speech that the District Court allowed the prosecutor to deliver in the
presence of the jury.

46

In essence, the Court gave the prosecutor an opportunity to bolster his

reputation through personal contact with the jury that was not similarly
afforded to defense counsel. The resulting comments inappropriately injected

the character and experience of the attorney into the trial in a manner that has
worried us in the past. See United States v. Schartner, 426 F.2d 470, 478 (3d
Cir.1970) (finding remarks that "invite the jury to rely on the Government
attorney's experience in prosecuting criminals generally and on the Government
attorney's `sincerity'" constitute reversible error). In the future, district courts
would be well advised to avoid such issues by restricting attorneys to a simple
"I'm sorry"even one that is delivered after the verdict is renderedwhen
responding to questionable conduct.
V.
47

For the foregoing reasons, we will vacate Jason Korey's conviction under 18
U.S.C. 924, and remand for new proceedings consistent with this opinion.

Notes:
1

Appellate counsel was not trial counsel in this matter

Although the instructions provide two routes for the jury to find that Korey was
involved in a conspiracy to distribute cocaine, we are unable to say on which
one the jury based its conviction. Because we find that the first is legally
flawed, we do not discuss the secondthough we do note in passing that it
seems to suffer from the same defect as the first

We do not mean to suggest with our holding in this case that a hit man hired by
a drug distribution conspiracy cannot be a part of the conspiracy. Rather, we
simply hold that the jury instructions in this case did not properly instruct the
jury about all of the elements the Government must prove to establish
participation in such a conspiracy

48

SMITH, Circuit Judge, concurring.

49

As the majority ably explains, the charge to the jury was deficient because it
failed to instruct on the "unity of purpose" element required for the predicate
drug trafficking offense. See United States v. Gibbs, 190 F.3d 188, 197 (3d
Cir.1999) (explaining that a drug conspiracy requires that the "government
must establish a unity of purpose between the alleged conspirators, an intent to
achieve a common goal, and an agreement to work together toward that goal").
Like the majority, I conclude that this deficiency was not harmless and requires
that Korey's conviction be vacated. I write separately, however, because my
analysis, based on the Supreme Court's decision in Neder v. United States, 527

U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), diverges from that of the
majority.
50

In Neder, the Supreme Court determined that the omission of an essential

element from a jury charge is subject to harmless error review. Id. at 15, 119
S.Ct. 1827. Because there was overwhelming and undisputed evidence
regarding the omitted element, the Court concluded that the deficient jury
instruction was harmless error. Id. at 18, 119 S.Ct. 1827. The Court instructed
that a reviewing court must "conduct a thorough examination of the record. If
at the end of that examination, the court cannot conclude beyond a reasonable
doubt that the jury verdict would have been the same absent the error, for
example, where the defendant contested the omitted element and raised
evidence sufficient to support a contrary findingit should not find the error
harmless." Id. at 19, 119 S.Ct. 1827.

51

In my view, Neder teaches that the focus in deciding if the omission of an

instruction on an element of an offense is harmless is on whether there is any
evidence to establish the omitted element. If there is no evidence on the
omitted element, the deficiency in the instruction is not harmless because a jury
could not have found that the prosecution proved this element beyond a
reasonable doubt. Likewise, if there is evidence on the omitted element and it is
contested, the deficiency in the instruction is not harmless because the jury
would need to deliberate on the evidence and decide whether the element had
been proved beyond a reasonable doubt. However, when there is evidence on
the omitted element that is not disputed, then the deficient instruction is
harmless because "answering the question of whether the jury verdict would
have been the same absent the error does not fundamentally undermine the
purposes of the jury trial guarantee." Id. at 19, 119 S.Ct. 1827.

52

Applying Neder to this case compels the conclusion that the deficient jury
instruction was not harmless error because, as the majority correctly points out,
"[t]here was no evidence that Korey shared the goal of cocaine distribution at
all, or that his involvement with Kuhn and Erfort was anything other than
personal." Slip op. at 97.

53

Having concluded that there was no evidence on the omitted "unity of purpose"
element, the analysis should be complete. The majority, however, goes on to
reason that "[e]ven if we were to determine that this evidence . . . is sufficient
to find that Korey was part of a drug distribution conspiracy, [the error is not
harmless because the evidence] is far from overwhelming." Slip op. at 97. In
my view, this additional step is unnecessary and runs afoul of Neder. If the
evidence offered at trial was sufficient to demonstrate the unity of purpose

element and was undisputed, as the majority states, Neder instructs that the
error was harmless. 537 U.S. at 18, 123 S.Ct. 353 (instructing that where there
is uncontroverted evidence on the omitted element the error is harmless). For
this reason, I cannot join this aspect of the majority's analysis and consider it
dictum.