Supreme
Court
Establishes
Due
Process
Protections
for
Defendants
Accused
of
Operating
a
Continuing
Criminal
Enterprise
6/4/99
Scott Ehlers, Senior Analyst, Drug Policy Foundation, [email protected], http://www.dpf.org It is a rare occasion when the Supreme Court rules against the government in a drug-related case, but on June 1 it did just that. The conservative court ruled by a 6 to 3 margin that in order to convict someone of operating a continuing criminal enterprise (CCE), jurors must agree on the specific drug offenses that were committed. The decision establishes a badly needed due process protection for defendants accused of operating a CCE, an offense that carries a 20-year mandatory minimum sentence. The case, Richardson v. United States, involved Eddie Richardson, a.k.a. "King of all the Undertakers." Richardson was accused of organizing a Chicago street gang called the Undertaker Vice Lords beginning in 1970, which reportedly distributed heroin and cocaine from 1984 to 1991. In 1994, Richardson was charged with operating a continuing criminal enterprise for his leadership role in the organization. According to federal law, a person engages in a CCE if he/she: (1) commits "a continuing series" of federal drug law violations; (2) is in a position of leadership with five or more other persons in the operation; and (3) obtains "substantial income or resources" from the violations. At the trial, Richardson argued that the jury should be instructed that it had to unanimously agree on which three illegal acts constituted the series of violations that made up the continuing criminal enterprise. The judge disagreed and instead instructed the jury that it "must unanimously agree that the defendant committed at least three federal narcotics offenses," but did not have to agree as to the particular offenses. Richardson was convicted. Because the federal circuit courts have disagreed on the definition of a continuing criminal enterprise, the Supreme Court took the case. The question before the court was: Does a jury have to unanimously agree on the specific violations involved in the 'continuing series' of violations, or can it simply agree that a series of violations took place? In the majority opinion written by Justice Breyer and joined by Chief Justice Rehnquist and Justices Stevens, Scalia, Souter, and Thomas, the Court found that a jury "must unanimously agree not only that the defendant committed some 'continuing series of violations,' but also about which specific 'violations' make up that 'continuing series.'" Breyer warned that the breadth of the statute and the federal drug laws create "dangers of unfairness" if a jury was not required to agree on individual violations of law. Breyer noted that the Federal Criminal Code's anti-drug statutes consist of approximately 90 numbered sections, which vary in degree of seriousness. "[B]y permitting a jury to avoid discussion of the specific factual details of each violation will cover-up wide disagreement among the jurors about just what the defendant did, or did not, do." In the dissenting opinion written by Justice Kennedy and joined by Justices O'Connor and Ginsburg, Kennedy wrote that the ruling would be "disruptive" and would make convictions under the statute "remarkably more difficult." Justice Breyer countered that it should not be difficult to prove specific crimes in a continuing criminal enterprise, and if it was difficult, "would that difficulty in proving individual specific transactions not tend to cast doubt upon the existence of the requisite 'series'?" Richardson v. U.S. is case No. 97-8629.
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