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Sentencing and Penalties Judicial discretion and mandatory minimums, drug conspiracy penalties and double jeopardy - all of these can be found in this section. Pages: ‹1› ‹2› ‹3› ‹4› ‹5› ‹6› ‹7› ‹8› ‹9› ‹10› ‹11› ‹12› ‹13›
...[T]he Government says that a jury-unanimity requirement will make the statute's crime too difficult to prove -- to the point where it is unreasonable to assume Congress intended such a requirement. But we do not understand why a unanimity requirement would produce that level of difficulty. After all, the Government routinely obtains the testimony of underlings -- street-level dealers who could point to specific incidents -- as well as the testimony of agents who make controlled buys or otherwise observe drug transactions. Such witnesses should not have inordinate difficulty pointing to specific transactions. Or, if they do have difficulty, would that difficulty in proving individual specific transactions not tend to cast doubt upon the existence of the requisite "series"?
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The continuing series element [of the CCE offense] reflects Congress' intent to punish those who organize or direct ongoing narcotics-related activity. As the Court said in Garrett: "A common-sense reading of this definition [of 'engaged in a continuing criminal enterprise'] reveals a carefully crafted prohibition aimed at a special problem. This language is designed to reach the 'top brass' in the drug rings, not the lieutenants and foot soldiers." [...] As part of that statutory design, the continuing series element of the offense aims to punish those whose persistence and organization establish a successful, ongoing criminal operation. The continuing series element, as a consequence, is directed at identifying drug enterprises of the requisite size and dangerousness, not at punishing drug offenders for discrete drug violations.
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...[T]he Guidelines instruct a sentencing judge to base a drug-conspiracy offender's sentence on the offender's "relevant conduct." USSG § 1B1.3. And "relevant conduct," in a case like this, includes both conduct that constitutes the "offense of conviction," id., § 1B1.3(a)(1), and conduct that is "part of the same course of conduct or common scheme or plan as the offense of conviction," id., § 1B1.3(a)(2).
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Although Congress designed the drug forfeiture statute to be a powerful instrument in enforcement of the drug laws, it did not intend to deprive innocent owners of their property. The affirmative defense of innocent ownership is allowed by statute. See 21 U. S. C. § 881(a)(7) ("No property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner").
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The government may, of course, tax illegal activity. See, e. g., Marchetti v. United States, 390 U.S. 39, 44, 19 L. Ed. 2d 889, 88 S. Ct. 697 (1968). In fact, we have upheld, as within Congress' taxing authority, a $100 per ounce tax on marijuana. United States v. Sanchez, 340 U.S. 42, 44, 95 L. Ed. 47, 71 S. Ct. 108 (1950). But the power to tax illegal activity carries with it the danger that the legislature will use the tax to punish the participants for engaging in that activity. This is particularly true of taxes assessed on the possession of illegal drugs: Because most drug offenses involve the manufacture, possession, transportation, or distribution of controlled substances, the State might use a tax on possession to punish a participant in a drug crime twice for the same conduct.
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