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A Continuing Criminal Enterprise is one of the "super crimes" where our constitutional attacks were repeatedly rebuffed until the Supreme Court surprised many of us when it ruled for the defense in Richardson and held that CCE predicate acts are subject to jury unanimity and proof beyond a reasonable doubt.

Unlike the RICO statute which abounds with published opinions, the published law on Continuing Criminal Enterprises is relatively sparse. There are still opportunities for defense counsel to raise constitutional challenges to the statute and to the standard prepackaged jury instructions. This arcticle focuses upon one of the many constitutional attacks that should be raised as part of every CCE defense.

The core infirmity of the CCE statute is that it redefines ordinary criminal activity in essentially political terms to satisfy the public's thirst for politically created solutions to politically created problems. The resulting redefinition of two or three ordinary crimes as a "Continuing Criminal Enterprise" is often indistinguishable from a modification of the rules on grouping and criminal history calculation. Rather than change the rules of sentencing, Congress chose to invent a super statute and define a super crime. In doing so, they attempted to imbue the crime of a CCE with characteristics which Congress thought made it seem to be a distinct crime

It most cases this distinction is semantic but not substantive. The supervisorial role which is already accounted for in the guidelines is reaccounted for in a CCE with a requirement over some undefined period of time to an undefined degree, five people must be supervised. The incredibly vague requirement that the CCE defendant obtain some degree of income from the criminal activity makes little sense in terms of defining either a moral wrong or the degree of criminality involved in an enterprise. Some defense counsel have argued that the income requirement actually attempts to define a size or significance element of the crime and have asked for instructions which emphasize that the income requirement is not a pure dollar amount but instead a dollar amount which reflects the overall intent of the statute.

Unfortunately, in published cases there has been little attempt by the courts to give real teeth to these additional requirements so as to give effect to the claimed purpose of the CCE statute - to catch real criminal organization kingpins. Instead, an almost pro forma adherence to the defined elements of the crime have been deemed sufficient. There is a growing trend by the courts to attempt to define this beast but in the end the courts have generally left a trail of self-righteous decisions having little precedential value and which provide little clarity other than the final words, "Judgment Affirmed".

Despite these negative court rulings, a CCE remains one of the most poorly defined crimes and it is still vulnerable to constitutional attack. Despite the trend to uphold CCE convictions if there are any facts which seem to meet the vague letter of the law there are some weaknesses which are so glaring that even the most myopic court can't help but see. The recent Supreme Court decision in Richardson v. U.S., 526 U.S. 813, 815 (U.S.Ill., Jun 01, 1999) combined with the growing trend of "relatedness" decisions, opens a new avenue for constitutional attack which will not be easily dismissed.

21 U.S.C. § 848 forbids any "person" from "engag[ing] in a continuing criminal enterprise" and defines "continuing criminal enterprise" (CCE) as a violation of the drug statutes where "such violation is part of a continuing series of violations". That seems to make sense since all of the words are common English. The title of the crime itself creates a picture of a criminal business like, "the mafia", "Columbian drug guys" or maybe "Murder Incorporated". But our cases are not History Channel specials or made for TV movies. Of course, our real life clients don't call official crime incorporated board of director meetings nor do they carry around little corporate rule books titled "Code of Conduct - La Cosa Nostra, Inc.". Like a kid with a new train set for Christmas, most prosecutors can't seem to contain themselves and they roll out the CCE charge whenever the crime can possibly fit and they use it like a club when our clients won't snitch or take a deal. It is the nuclear threat that they brandish whenever they become frustrated at our resistance. Unfortunately, if they can prove two or three predicates it is often easy to establish the additional elements of the CCE as these elements are often interpreted by the courts.

Applied to most real life situations, the terms "Continuing Criminal Enterprise" is a nightmare of ambiguity. The terms which supposedly distinguish a CCE are so common and general as terms that they become catch-all phrases and allow conviction based upon almost any type or amount of proof. This should be fatal to the statute but the courts continue to save the statute. For example, the Ninth Circuit has found that the words "organizer," "supervisory position," and "management" "enjoy a wide currency in the business community and are commonly understood by members of the general public." (U.S. v. Ray, 731 F.2d 1361, 1367 (9th Cir.(Wash.), Apr 24, 1984) quoting United States v. Valenzuela, 596 F.2d 1361 (9th Cir.), cert. denied, 444 U.S. 865 (1979)). Somehow the Ninth Circuit believes that common words which are subject to a myriad of different interpretations, somehow save a statute.

The business community analogy is less useful in defining words "continuing series" and those two words are the Achilles heel of the statute. At first, the "continuing series" requirement seems self explanatory and perhaps for this reason, there is little law which defines its precise meaning. Upon careful analysis, the meaning of "continuing series" is anything but clear.

At its broadest, "continuing series" means simply criminal acts done over a period of time and committed by a single person. So interpreted, the CCE statute is just a type of "three strikes" statute. (Some circuits only require two predicates see, e.g. U.S. v. Wilson, --- F.3d ----, 2001 WL 38616 (7th Cir.(Ill.), Jan 17, 2001. We can take some hope from the comment in Richardson v. U.S., 526 U.S. 813, 815 (U.S.Ill., Jun 01, 1999) where the Supreme Court stated: "We assume, but do not decide, that the necessary number is three, the number used in this case.")

The view that "continuing series" is only a series of acts unrelated to each other except in that the same defendant was a perpetrator in each is a simplistic interpretation that is not adopted by any circuit. Such an interpretation is obviously precluded by the additional terms of the statute which require that the continuing series of crimes be undertaken by the defendant in concert with five or more other persons with respect to whom such person occupies a position of organizer [or supervisor or manager] and the requirement that the defendant obtain substantial income or resources from the criminal conduct.

Implicit in this business type language is a concept larger than that of just three crimes. This is the language which leads to the requirement that the "continuing series" of acts be related to each other. Otherwise, despite the existence of five supervisees and substantial income, an enterprise does not exist.

Just as the Ninth Circuit believes that the word "organizer," "supervisory position," and "management" "enjoy a wide currency in the business community and are commonly understood by members of the general public, it is equally clear that a business enterprise cannot be constituted through entirely unrelated crimes. Once this requirement of "relatedness" is established, defense counsel can begin to argue that "relatedness" is an element of the offense which must be proven beyond a reasonable doubt and with jury aninimity. Counsel can also demand a clear definition of this term.

There is growing agreement that there is a requirement of relatedness inherent in the concept of a "continuing series" of crimes. What has not yet been established is just how related these various crimes need to be in order to satisfy the "continuing series" requirement.

Once you establish that the continuing series of crimes must be related to each other, your creativity is the only limit to the problems that you can create for your prosecutor.

An example of type of issues which can be raised are:

1. Can two minor crimes with no profit made and no persons being supervised be considered related to a third, larger crime involving five persons and involving lots of money?

2. Must there be some common element relating all three crimes to each other like the spokes connected to the center of the wheel? Or is it sufficient that the crimes relate in a serial fashion only, as 1 is connected just to 2 and 2 is then connected to 3?

3. Must substantial money be made in each crime? Are losses from one crime subtracted from gains in another? Is it important that funds from one crime be utlized in the commission of later crimes?

Other ideas include:

If the predicate acts have to be related to each other, must the jury unanimously agree on the factors which cause that relation? Must the jury find those factors to be true beyond a reasonable doubt? Must there be a specific instruction clarifying these points?

You will certainly develop other and more interesting points and arguments which suit your particular case. At their core, all of the questions that we raise to attack the CCE statute can be reduced to the following:

Must the CCE predicates have some relation to each other than being continuing in a temporal sense? The answer has to be yes, otherwise the words "continuing series" have no purpose in the statute. Once that door is open to all of your creative arguments as to what that relationship must be. But before you can inflict your creative arguments on your unfortunate opponent, you need to clearly establish the validity of the requirement of relatedness. This can be done.

Until recently, it was not clear that the predicate acts were even an element of the offense. In Richardson v. U.S., 526 U.S. 813, 815 (U.S.Ill., Jun 01, 1999) the United States Supreme Court found that the predicate acts of a Continuing Criminal Enterprise were elements of the offense. The court therefore held that unanimity is required as to at least three of the specific acts making up the "continuing series" of violations.

Separate from the Richardson argument has been a growing trend across numerous circuits recognizing that there must be a relationship between the continuing acts which goes beyond a simple involvement of our clients as actors in each of the three (or more) predicates.

While there is growing agreement that some relatedness relationship be found, there is virtually no agreement and no attempt to define the precise degree to which these three separate acts must be related to each other.

Some attempt to address this relatedness issue can be found in U.S. v. Hoyle, 122 F.3d 48, 51, 326 U.S.App.D.C. 310 (D.C.Cir., Sep 12, 1997) however, the court is better at defining the problem than in solving it.

"Even if that is so, however, we do not believe that the government must show, under CCE, the structure of a continuing organization equivalent to a RICO "enterprise." The statute does refer to the defendant as an organizer or supervisor but one can organize events and supervise transitory subordinates without creating an organizational structure. And although the phrase "continuing series" certainly connotes related events, see Hall, 93 F.3d at 129, those events can be related by virtue of a defendant's specific modus operandi, even in the absence of the use of common subordinates."

Hoyle somewhat succeeds in defining what a CCE is not (not a RICO) but it is impossible to extract from the opinion what a continuing enterprise is. At least one point can be extracted from the opinion, the court does recognize that "continuing series" connotes "related events".

The following establish a "relatedness" requirement in most circuits. Once you can establish a requirement of "relatedness" that factor can be combined with a Richardson based argument.

In U.S. v. Hall 93 F.3d 126, 129 (4th Cir. 1996), the Fourth Circuit found the requirement of actual relatedness to be obvious. Unfortunately, the circuit found this requirement so obvious that the jury instruction did not need to specify this.

"Hall argues that the judge erred by failing to instruct the jury that it must unanimously agree that the three or more drug violations were "related" to each other. We disagree. The district court explained to the jury that the federal narcotics violations must constitute a "continuing series" and this was enough. There was no need to instruct on any requirement of "relatedness." Hall's argument ignores the fact that the very phrase, "continuing series," denotes related events."  (U.S. v. Hall 93 F.3d 126, 129 (4th Cir. 1996) Emphasis added)

See also: U.S. v. Brown, 202 F.3d 691, 700 (4th Cir.(N.C.), Jan 18, 2000)

The First Circuit has held that the acts must be related "in some way".

"That is not the end of the matter, however. Section 848 also requires that jurors agree that the "series" of violations be "continuing" in nature--that is, that they be related to each other in some way. See United States v. Edmonds, 80 F.3d 810, 814 (3d Cir.1996) (citing United States v. Jones, 801 F.2d 304, 307 (8th Cir.1986); United States v. Baker, 905 F.2d 1100, 1104 (7th Cir.1990)).  

(U.S. v. Escobar-de Jesus, 187 F.3d 148, 162 (1st Cir.(Puerto Rico), Aug 02, 1999, Emphasis added)

The Third Circuit first addressed this issue in 1996 and then again in 1998.

In U.S. v. Russell, 134 F.3d 171, 177 (3rd Cir.(Pa.), Jan 16, 1998) the Third Circuit cited the language which it had approved in United States v. Edmonds, 80 F.3d 810, 814 (3d Cir. 1996) finding that there must be proof beyond a reasonable doubt of three separate acts. The opinion seems to imply that there must be proof beyond a reasonable doubt that the acts are "related to each other".

"The government has to prove that such violation was part of a continuing series of related violations of the federal narcotics laws. A continuing series of violations requires proof beyond a reasonable doubt that three or more violations of the laws occurred and that they, those three or more, were related to each other."

(Russell at 177 citing the Edmunds instruction with approval)

The Sixth Circuit has cited that same Edmunds decision requiring unanimity as to the relatedness aspect of the crime.

"As noted, §848 requires that jurors agree that the "series" of narcotics violations be "continuing" in nature--in other words, that they be related to each other in some way. See, e.g., United States v. Edmonds, 80 F.3d 810, 822 (3d Cir.1996) (en banc) (holding that the jury must unanimously agree that the underlying narcotics violations were "related" to each other for CCE purposes)."

(Murr v. U.S., 200 F.3d 895, 906 (6th Cir.(Ky.), Jan 07, 2000)

"§848 requires that jurors agree that the "series" of narcotics violations be "continuing" in nature--in other words, that they be related to each other in some way. See, e.g., United States v. Edmonds, 80 F.3d 810, 822 (3d Cir.1996) (en banc) (holding that the jury must unanimously agree that the underlying narcotics violations were "related" to each other for CCE purposes)."

(Murr v. U.S., 200 F.3d 895, 906 (6th Cir.(Ky.), Jan 07, 2000)

The Eighth Circuit has used far weaker language but has also held that the violations must be related.

"'Continuing'" requires that the course of illicit conduct span a definite period of time, and a "series" is established by proof of three or more related violations. United States v. Bergdoll, 412 F.Supp. 1308, 1317

(D.Del.1976). See United States v. Becton, 751 F.2d 250, 254 (8th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985)."

(U.S. v. Jones, 801 F.2d 304, 307 (8th Cir.(Ark.), Sep 11, 1986)

See also: U.S. v. Scott 218 F.3d 835 (8th Cir.(Neb.), Jul 07, 2000)

The D.C. Circuit cited the Hall when it outlined the elements of a CCE violation in U.S. v. Hoyle, 122 F.3d 48, (D.C.Cir., Sep 12, 1997).

"A 'continuing series of violations' is defined as 'at least three related felony narcotics violations, including the one charged.' United States v. Hall, 93 F.3d 126, 129(4th Cir.1996), cert. denied, 519 U.S. 1151, 117 S.Ct. 1087, 137 L.Ed.2d 220 (1997)." (Hoyle at 312)

In 1999, the Ninth Circuit declined this author's plea to publish its opinion in U.S. v. Brown, 182 F.3d 928, Unpublished Disposition, 1999 WL 369902 (9th Cir.(Wash.), May 18, 1999). This case did recognize a relatedness requirement. While the Ninth Circuit has no published case on this point there is some good language in other Ninth Circuit opinions.

In U.S. v. Garcia, 988 F.2d 965 (9th Cir.(Cal.), Mar 10, 1993) the Ninth Circuit addressed the relationship between the alleged manager and his five supervisees. During that discussion, the Ninth Circuit cited the relationship between the predicate acts as this affected the relationship between the defendant (Garcia) and his supervisees. The Ninth Circuit specifically cited the fact that one of the "deals" was "part of a larger illicit drug operation in which he [Garcia] had a management role". The decision implicitly recognizes that a CCE is not simply three unrelated incidents but incidents which appear separate but based upon additional proof are established as being "part of a larger illicit drug operation".

"The record belies Garcia's contentions. Evidence presented at trial demonstrated that in the course of the Fresno dealings, Garcia was working with associates out of the hobby shop in San Diego at which he laundered large amounts of money that he used in his drug trafficking. Throughout the negotiations for drugs, Garcia stated that his associates understood that the

profit from the deal would be divided between Garcia and one other individual. Garcia was thus clearly in charge of all arrangements for the deal. The Fresno deal was clearly part of an ongoing business operation and not an isolated episode.

Although Garcia is correct that the evidence did not show that he supervised anyone in the Fresno area, the evidence does clearly show that he supervised individuals elsewhere. Additionally, the Fresno dealings were part of a larger illicit drug operation in which he had a management role. Finally, he told agents that the people involved in the Fresno transaction were the same as those who manufactured the PCP he sold along with the cocaine.

The Fresno evidence was therefore relevant to establishing one of the three narcotics violations required to prove a continuing criminal enterprise. Although the government did not prove that Garcia was supervising the same people in his Fresno dealings that he supervised in the other alleged narcotics violations, such proof is unnecessary. We have held that the government need not prove that the organizer of the enterprise worked with five people at the same time during the continuing series of violations. United States v. Smith, 690 F.2d 748, 750 (9th Cir.1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983). The evidence was therefore sufficient to prove all elements of the CCE charge.

(U.S. v. Garcia, 988 F.2d 965, 968 (9th Cir.(Cal.), Mar 10, 1993, Emphasis added)

If these cases are not enough to make your point, consider drawing on the logic that the courts have applied when they have used a CCE charge to extend the statute of limitations on otherwise expired crimes.

The Ninth Circuit analogizes the "extension" of the statute of limitations for a CCE violation to such extension under RICO as long as long as an act in the series of offenses occurred within the CCE limitations period. In so ruling, this Circuit has recognized the distinctiveness of each incident and the common threads which conceptually tie them together.

"Other than the fact of a prior conviction, any fact that increases the prescribed statutory maximum penalty to which a criminal defendant is exposed must be submitted to a jury and proven beyond a reasonable doubt. Therefore, just as time-barred offenses may serve as predicate acts to establish a pattern of racketeering activity under RICO, see United States v. Torres Lopez, 851 F.2d 520, 528 (1st Cir.1988), cert. denied, 489 U.S. 1021, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989); United States v. Pepe, 747 F.2d 632, 663 n. 55 (11th Cir.1984), such offenses may serve as predicate CCE crimes as long as an act in the series of offenses occurred within the CCE limitations period. See Hernandez-Escarsega, 886 F.2d at 1578 (defendant's drug-related activities in 1970s were valid CCE predicate offenses in 1986 trial)."

(U.S. v. Baker, 10 F.3d 1374, 1410 (9th Cir.(Nev.), Oct 19, 1993, Emphasis added.)

In this opinion, the Ninth Circuit incorporates Apprendi language and seems to be saying that the relationship which allows the government to bypass the normal statute of limitations is an Apprendi element. If it is an Apprendi element it must be presented to the jury and established by proof beyond a reasonable doubt.

In Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) a unanimous Supreme Court held that a constitutionally deficient reasonable doubt instruction is not subject to harmless error analysis. The Court reasoned that a verdict of guilty beyond a reasonable doubt is a necessary predicate of Chapman 's harmless error inquiry. "What the fact finder must determine to return a verdict of guilty is prescribed by the Due Process Clause. The prosecution bears the burden of proving all elements of the offense charged, [citations] and must persuade the fact finder "beyond a reasonable doubt" of the facts necessary to establish each of those elements..." (Sullivan 277-278) Using Richardson and Apprendi, there is an argument that the relatedness requirement is elemental.

The Richardson decision did not hold that a jury must agree upon "related" predicate acts. It simply required unanimity as to the identity of the predicates. Despite this, at least one court has assumed that the Richardson holding included a reference to relatedness.

"In 1999, the Supreme Court held that to support a CCE conviction, a jury must agree unanimously not only that the defendant committed a series of related drug violations but also which particular violations constituted the series. See Richardson v. United States, 526 U.S. 813, 816, 824, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999)."

(U.S. v. Scott, 218 F.3d 835, 837 (8th Cir.(Neb.), Jul 07, 2000)

You won't find that relatedness language in Richardson but it is nice to know that the Eighth Circuit thinks that it is there and perhaps by implication it is.

The relatedness concept arises in an interesting context in U.S. v. King, 169 F.3d 1035 (6th Cir.(Tenn.), Mar 05, 1999). In King the jury was not told that they had to unanimously agree on which of the nine charged marijuana offenses constituted the CCE. Unfortunately for the defendant, he was convicted as to all nine counts. The Sixth Circuit found any potential error in the instruction harmless. The harmlessness of the error is obvious since there was conviction on all nine counts but the Sixth Circuit also addressed the relatedness issue holding that:

"Moreover, the evidence presented to the jury clearly established that these offenses were related to one another, because they were all part of King's ongoing drug distribution business. King has never claimed otherwise." (King at 1041)

This case was reviewed for plain error because no objection to the instruction was made by trial counsel. What result will we obtain from the Sixth Circuit when not only a Richardson unanimity instruction is requested (and of course, by now this is standard) but also a "relatedness" instruction is requested?

The weakest definition of relatedness comes from the First Circuit which held that "The relatedness of the counts is demonstrated by their proximity in time and identity of purpose ..." (U.S. v. Escobar-de Jesus, 187 F.3d 148, 162 (1st Cir.(Puerto Rico), Aug 02, 1999). That definition is so vague that it provides no guidance to a jury or to counsel.

The First Circuit is not at fault for providing so poor a definition. The attempt to define related is painfully overbroad because the statute is a well drawn political statement but poorly drafted as a statute.

The "vagueness doctrine" bars enforcement of statute which either forbids or requires doing of act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. The "canon of strict construction of criminal statutes," or "rule of lenity," resolves ambiguity in criminal statutes so that they only to conduct clearly covered. Finally, due process bars courts from applying novel construction of criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope--in each of these guises, touchstone is whether statute, either standing alone or as construed, made it reasonably clear at relevant time that defendant's conduct was criminal. (U.S. v. Lanier, 520 U.S. 259 (U.S.Tenn., Mar 31, 1997).

Other vagueness challenges to the CCE statute have been rejected. Recall the Ninth Circuit in U.S. v. Ray finding the words "organizer," "supervisory position," and "management" as commonly understood by the business community. (See also United States v. Kirk, 534 F.2d 1262, 1277-78 (8th Cir.1976), cert. denied, 433 U.S. 907 (1977); United States v. Cooper, 19 F.3d 1154, 1165 (7th Cir.1994)).

These decisions do not address a "relatedness" challenge on the grounds of vagueness. Consider that a clear definition of relatedness it is impossible to distinguish a CCE from a criminal history enhancement. The CCE differs from criminal history because it is part of the definition of the crime and it carries with it extraordinary penalties.

There is a strong constitutional argument based upon Richardson and Apprendi v. New Jersey, 530 U.S. 466 (U.S.N.J., Jun 26, 2000) that relatedness is an element of the crime and must be adequately defined. Counsel should fashion a proposed instruction which both defines relatedness as an element and which also defines relatedness in a common sense manner which incorporates the concept of an true corporate type enterprise.

Richardson did not address the "relatedness" argument but it did establish that there must be proof beyond a reasonable doubt and jury unanimity as to which predicate acts make up the CCE.

"We must decide whether a jury has to agree unanimously about which specific violations make up the "continuing series of violations." We hold that the jury must do so. That is to say, a jury in a federal criminal case brought under §848 must unanimously agree not only that the defendant committed some "continuing series of violations" but also that the defendant committed each of the individual "violations" necessary to make up that "continuing series."

(Richardson v. U.S., 526 U.S. 813, 815 (U.S.Ill., Jun 01, 1999)

Under Apprendi v. New Jersey, 530 U.S. 466 (U.S.N.J., Jun 26, 2000) any fact, other than the fact of prior conviction, that increases penalty for crime beyond prescribed statutory maximum must be submitted to jury, and proved beyond reasonable doubt. The fact of relatedness is just such a fact. Absent a finding of relatedness a CCE is not a distinct crime. With the finding, it creates a sentencing enhancement which greatly increases the statutory maximum in most all circumstances.

At its core, relatedness is an element of the crime. Richardson has established that the jury must agree upon each predicate and find the existence of each predicate, beyond a reasonable doubt. A crime cannot be a CCE predicate unless it is related to the others. This inextricably ties the finding of relatedness into the finding of the existence of the CCE predicate. One cannot exist without the other.

Phrased differently, a crime which the defendant did commit but which is not related, can never be a CCE predicate. This means that the fact of relatedness is fundamental to the determination of guilt or innocence.

The "Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (In re Winship, 397 U.S. 358, 364 (1970). The fact of relatedness is essential to a finding that a crime is a CCE predicate. Under In re Winship this fact must be established unanimously and beyond a reasonable doubt.

This area of attack on CCE's is new and quite promising. It is type of argument that has watershed potential in the same way that Richardson did. A brief should be submitted on this issue and proposed jury instruction(s) should be submitted on this point in each CCE case. If the law changes in our favor, we want the issues clearly preserved on appeal. For the same reason a Rule 29 motion should be made on the grounds that sufficient relatedness was not proven.              Contact Daniel Horowitz