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Supreme Court Tightens Burden of Proof
in Continuing Criminal Enterprise Cases


Summer 1999

On June 1, the Supreme Court ruled in a 6-to-3 decision that prosecutors seeking to convict drug defendants of engaging in a "continuing criminal enterprise" (CCE) (21 USC 848) must specifically prove each alleged offense (Richardson v. United States, No. 97-8629 (1999)) (Linda Greenhouse, "Justices Raise the Bar for Convicting Drug Kingpins," New York Times, June 2, 1999, p. A16; Joan Biskupic, "Bar Raised for Drug Convictions," Washington Post, June 2, 1999, p. A2; Steve Lash, "High Court Tightens Drug-Lord Conviction Rules," Houston Chronicle, June 2, 1999, p. 12A).

The court read narrowly the federal statute that defines CCE as a "series" of narcotics offenses. A jury must unanimously conclude that a defendant violated the law multiple times and must agree on what the specific violations were, the justices ruled. The federal CCE statute requires a series of felonious drug offenses with at least five subordinates. Those convicted face a mandatory minimum of 20 years in prison up to life.

The federal government argued that a jury did not have to be unanimous regarding the specific offenses that constituted the series. Writing for the majority, Justice Stephen G. Breyer said the government's position would lead to defendants being convicted without juries engaging in a full discussion of the facts. "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," wrote Justice Breyer, who was joined by Chief Justice William H. Rehnquist and Justices John Paul Stevens, Antonin Scalia, David H. Souter and Clarence Thomas.

Eddie Richardson was convicted of CCE in 1994 by a jury that found he had violated federal drug laws on at least three occasions. Overturning Richardson's conviction, the Supreme Court found that the trial judge erroneously told the jurors that to convict Richardson they had to unanimously agree that he committed at least three federal narcotics violations, but they did not have to agree on which specific offenses he committed.

Dissenting were Justice Anthony M. Kennedy, Sandra Day O'Connor and Ruth Bader Ginsberg, who said the ruling "rewards those drug kingpins whose operations are so vast that the individual violations cannot be recalled or charged with specificity."

"The inviolable right to a jury trial in criminal cases. . .must not be diluted by the government simply throwing multiple charges against the wall of justice to see if any of them stick," said Larry Pozner, president of the National Association of Criminal Defense Lawyers.

Larry Pozner - 1890 Gaylord St., Denver, CO 80206, Tel: (303) 333-1890, Fax: (303) 333-1041, E-mail: <>.