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Updated: Jul 3

Not as Simple as it Seems

In United States v. Hernandez-Escarsega, 886 F.2d 1560 (1989), the Ninth Circuit held, as every other circuit to have considered the question has, that a Title 21 drug conspiracy can serve as a predicate offense to the charge of Continuing Criminal Enterprise (CCE) under 21 U.S.C. § 848. That holding, despite being almost universally adopted by the federal circuit courts, is demonstrably contrary to the clear and unambiguous language of § 848(c).

§ 848(c) defines a continuing criminal enterprise as follows:

(c) “Continuing criminal enterprise” defined:

For purposes of subsection (a), a person is engaged in a continuing criminal enterprise if—

(1) he violates any provision of this subchapter or subchapter II the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II—

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources.

Although the statute does not define what is meant by a "continuing series of violations," the Supreme Court has held that the government must prove at least three separate violations that are felony drug offenses. See, Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). Those three or more offenses are referred to as "predicate" offenses for a CCE charge. The Supreme Court has not yet ruled whether a conspiracy can serve as one or more of the three offenses needed to establish a CCE.

As other circuit courts have done, the Ninth Circuit holds that because §848(c)(1) refers to a violation of "any provision of this subchapter or subchapter II," and conspiracy to commit a felony drug offense is such a violation, conspiracy to commit a drug offense qualifies as predicate offense for purposes of establishing a continuing series of violations. See, United States v. Hernandez-Escarsega, at 1571. Compelling as such logic may be in its simplicity, it ignores the actual language of § 848(c), which does not say that just any felony drug offense will qualify as a predicate offense. On the contrary, § 848(c)(2)(A) states that only felonies "which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management" can be used to establish a continuing series of violations.

The phrase "in concert with" means an agreement in design or plan. Jeffers v. United States, 432 U.S. 137, 149-50, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). Thus, for an offense to be undertaken pursuant to an agreement in design or plan, the design or plan must exist separate from the commission of the offense itself. That is, the participants in the crime must act together in some way to commit the crime that is a predicate offense.

A conspiracy is simply an agreement between two or more persons to commit a crime. The agreement itself constitutes a completed crime, and the participants in the conspiracy need not take any action or commit any substantive offense to be guilty of conspiracy to commit a drug offense. United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 130 L.Ed.2d (1994).

The act of becoming part of a conspiracy by agreeing to commit a crime is an act that is undertaken by each member of the conspiracy individually. While five or more persons may act together for a common purpose once a conspiracy has been formed, the act of forming the conspiracy is the result of the independent agreement of each member or participant. In other words, one cannot conspire to commit the crime of conspiracy. Therefore, one cannot commit the crime of conspiracy "in concert with five or more other persons."

Likewise, one participant in a conspiracy can never occupy a position of organizer, supervisor, or manager of other participants with respect to the formation of the conspiracy itself. Once the conspiracy has been formed by the agreement of the participants, one or more participants may occupy such a position for purposes of carrying out the objects of the conspiracy. But, they cannot do so with respect to the formation of the conspiracy. Each participant must join the conspiracy of their own free will and must act independently in entering into the agreement that forms the basis for the conspiracy charge. Otherwise, there would be no conspiracy. Therefore, a conspiracy can never satisfy the requirements of § 848(c)(2)(A).

Finally, a person cannot "obtain substantial resources or income" from the commission of the crime of conspiracy alone. No resources or income can result from simply entering into an agreement to do something. Some action must be undertaken to produce either resources or income to the participants. An agreement may be necessary to the subsequent commission of the criminal acts that produce resources or income, but the act of entering into the conspiracy by itself produces nothing. As a result, a conspiracy charge can never meet the requirement of § 848(c)(2)(B).

It might be argued that the requirements of § 848(c)(2)(A) and (B) apply only to the series of violations that form the basis for a CCE charge, not to each separate offense that is part of the continuing series. Thus, as long as one of the offenses in a continuing series of offenses meets the requirements of 848(c)(2)(A) and (B), the conduct constitutes a CCE. However, that argument is contrary to the plain language of § 848(c)(2). The use of "are" rather than "is" in subsection (2)(A) indicates a reference to the individual offenses that make up a continuing series rather than the series of offenses as a single unit. Therefore, a plain reading of the statute requires that each of the three or more predicate offenses alleged to constitute a CCE meets the criteria set forth in § 848(c)(2).

Moreover, it makes no sense to describe a single offense that meets the requirements of 848(c)(2)(A) and (B) as a continuing criminal enterprise simply because the accused also committed other drug offenses when those offenses are not part of a larger criminal enterprise. The statute clearly contemplates multiple offenses by a person who acts as a manager or supervisor and who makes substantial income from the commission of each offense. Therefore, a conspiracy to commit a drug offense cannot be a predicate offense even when lumped together with other crimes that are predicate offenses.


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