The Appellate Division continued in relevant part: Importantly for purposes of our decision, the State acknowledges that the gravamen of the defense argument is that the trial court did not provide adequate instruction on what “high level” means. We reproduce verbatim the State’s response to that defense contention:
On appeal, [Burnett] alleges that since the jury was not given the definition of a material element–what it means to be “high level”–that the instruction was inadequate. However, this is not true. “High level” was defined for the jury not only once, but twice, and the definition itself was taken verbatim from the Supreme Court’s language in Alexander. See Alexander (defining “high-level” as “one who occupies a significant or important position in the organization and exercises substantial authority and control over its operations”).
We read the State’s response as a tacit acknowledgment that the language in Alexander that is quoted in the State’s parenthetical needed to be read to the jury. But, contrary to the State’s assertion, that language was not read to the jury. We have scoured the jury charge delivered by the judge and conclude that the jury was never told that “high level” means “one who occupies a significant or important position in the organization and exercises substantial authority and control over its operations.” Rather, the judge read the model jury charge, which does not contain this amplification of the phrase “high level.”
As we have noted, in the specific context of this prosecution, where there was no cooperating witness to explain the inner workings of the network and the roles that each defendant played, we view the phrases “significant or important” and “substantial authority and control over its operations” to be an important part of the definition of “high level.” Those words were needed in this case to help explain to the jury how to distinguish supervisors and superiors from true leaders.
While the Court criticizes the prosecution’s analysis, at least some blame also falls on our courts. The Alexander Court should have ordered a revision of the model jury charge consistent their opinion.