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Court Opinions ›› Richardson v. United States (1999)
EDDIE RICHARDSON, PETITIONER v. UNITED STATES
No. 97-8629 SUPREME COURT OF THE UNITED STATES 526 U.S. 813; 119 S. Ct. 1707; 143 L. Ed. 2d 985; 1999 U.S. LEXIS 3640; 67 U.S.L.W. 4381; 99 Cal. Daily Op. Service 4070; 99 Daily Journal DAR 5177; 1999 Colo. J. C.A.R. 3011; 12 Fla. L. Weekly Fed. S 295 February 22, 1999, Argued June 1, 1999, Decided PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. At petitioner Richardson's trial for violating 21 U.S.C. § 848 -- which forbids any "person" from "engaging in a continuing criminal enterprise," § 848(a), and defines "continuing criminal enterprise" (CCE) as involving a violation of the drug statutes where "such violation is part of a continuing series of violations," § 848(c) -- the judge rejected Richardson's proposal to instruct the jury that it must unanimously agree on which three acts constituted the series of violations. Instead, the judge instructed the jurors that they must unanimously agree that the defendant committed at least three federal narcotics offenses, but did not have to agree as to the particular offenses. The jury convicted Richardson, and the Seventh Circuit upheld the trial judge's instruction.
A jury in a § 848 case 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."
The CCE statute's breadth [...] argues against treating each individual violation as a means, for that breadth aggravates the dangers of unfairness that doing so would risk. [...] The statute's word "violations" covers many different kinds of behavior of varying degrees of seriousness. The two chapters of the Federal Criminal Code setting forth drug crimes contain approximately 90 numbered sections, many of which proscribe various acts that may be alleged as "violations" for purposes of the series requirement in the statute. Compare, e.g., 21 U.S.C. §§ 842(a)(4) and (c) (1994 ed. and Supp. III) (providing civil penalties for removing drug labels) and 21 U.S.C. § 844(a) (Supp. III) (simple possession of a controlled substance) with 21 U.S.C. § 858 (endangering human life while manufacturing a controlled substance in violation of the drug laws) and § 841(b)(1)(A) (possession with intent to distribute large quantities of drugs). At the same time, the Government in a CCE case may well seek to prove that a defendant, charged as a drug kingpin, has been involved in numerous underlying violations. The first of these considerations increases the likelihood that treating violations simply as alternative means, by 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. The second consideration significantly aggravates the risk (present at least to a small degree whenever multiple means are at issue) that jurors, unless required to focus upon specific factual detail, will fail to do so, simply concluding from testimony, say, of bad reputation, that where there is smoke there must be fire.
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The Government, emphasizing the words "continuing series," says that the statute, in seeking to punish drug kingpins, focuses upon the drug business, not upon the particular violations that constitute the business. [...] The argument, however, begs the question. Linguistically speaking, the statute punishes those kingpins who are involved in a "continuing series of violations" of the drug laws. And Congress might well have intended a jury to focus upon individual violations in order to assure guilt of the serious crime the statute creates. Emphasizing the first two words in the passage does not eliminate the last.
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...[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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...[T]he CCE offense is aimed at what Congress perceived to be a peculiar evil: the drug kingpin.
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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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In the CCE context, the continuing series element advances the goals of the statute in a way that is neither unfair nor irrational: It is a direct and overt prohibition upon drug lords whose very persistence and success makes them a particular evil.
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There are many ways to be a drug kingpin, just as there are many ways to commit murder or kidnapping.
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Neither Congress' intent nor the Due Process Clause requires the result the Court reaches today, which rewards those drug kingpins whose operations are so vast that the individual violations cannot be recalled or charged with specificity.
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