Case: Richardson v. United States
Issue: Is each separate "violation" within the "continuing series of violations" the Government must establish in a Continuing Criminal Enterprise ("CCE") Act prosecution an element of the offense which the jury must agree on beyond a reasonable doubt?
Facts: The government indicted Richardson as a drug kingpin under the CCE Act. That statute prohibits individuals from engaging in continuing criminal enterprises. A person engages in a continuing criminal enterprise under the statute if he (1) violates any provision of the federal drug laws; (2) such violation is part of a continuing series of violations of the federal drug laws; (3) which violations are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, supervisor or manager; and (4) from which violations such person obtains substantial income or resources. The jury convicted Richardson. The trial court rejected Richardson's request to instruct the jury that "it must 'unanimously agree on which three acts constituted [the] series of violations.' . . . Instead, the judge instructed the jury that they 'must unanimously agree that the defendant committed at least three federal narcotics offenses,' while adding, '[y]ou do not . . . have to agree to as to the particular three or more federal narcotics offenses committed by the defendant.'" The Seventh Circuit upheld the trial court's instruction.
Holding: A jury in a federal criminal case brought pursuant to Title 21 U.S.C. § 848, the Continuing Criminal Enterprise ("CCE") Act, must unanimously agree, not only that the defendant committed a "continuing series of violations," but also that the defendant committed each particular violation necessary to make up a continuing series. The Court assumed, without deciding, that three discrete violations were enough to constitute a continuing series of violations under the statute. The Court did not require the government to prove every discrete violation alleged in the indictment. It did require the jury to unanimously agree on at least the minimum number of discrete violations necessary to make up a continuing series under the statute. In other words, assuming that only three violations are required to constitute a continuing series of violations and that the government alleges eight discrete violations in the indictment, the jury would have to unanimously agree on at least the same three discrete violations in order for this element to be satisfied under this statute.
Reasoning: Justice Breyer, writing for a six-person majority, reasoned that the result of this case turned on whether the statute's phrase "series of violations" refers to an element of the offense, which must be unanimously agreed upon by a jury, or whether it refers to one of the "underlying brute facts" or "means" used to satisfy the element, about which the jurors do not have to unanimously agree. Primarily using textual analysis, Justice Breyer concluded that the phrase "series of violations" refers to an element of the offense. "A 'violation' is not simply an act or conduct; it is an act or conduct that is contrary to law. . . . That circumstance is significant because the criminal law ordinarily entrusts a jury with determining whether alleged conduct 'violates' the law, . . . and, as noted above, a federal criminal jury, must act unanimously when doing so." The majority expressly rejected the dissent's suggestion that the statutory requirements of substantial income derived from the "violations" and involvement of five or more persons would have to be satisfied with respect to each underlying violation. "Those requirements must be met with respect to the series, which, at a minimum permits the jury to look at all of the agreed-upon violations in combination. Even if the jury were limited to the agreed-upon violations, we still fail to see why prosecutions would prove unduly difficult."
Other Opinions: In dissent, Justice Kennedy joined by Justices O'Connor and Ginsberg, argued that the majority's interpretation ran counter to the whole structure and purposes of the CCE Act.
Comment: Despite the assurances of the majority, this opinion is sure to generate much confusion and new litigation concerning both the elements and unanimity requirements of 21 U.S.C. § 848.