RICHARDSON v. UNITED STATES

• Citation: 526 U.S. 813
• Decision Date: 01 June 1999
• Court: United States Supreme Court

OCTOBER TERM, 1998

Syllabus

RICHARDSON v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

No. 97-8629. Argued February 22, 1999-Decided June 1, 1999

At petitioner Richardson's trial for violating 21 U. S. C. § 848-which forbids any "person" from "engag[ing] 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.

Held: 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." Pp. 817-824.

(a) A jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element of the offense. However, it need not always decide unanimously which of several possible means the defendant used to commit an element. If § 848(c)'s phrase "series of violations" refers to one element, a "series," in respect to which individual "violations" are but the means, then the jury need only agree that the defendant committed at least three underlying crimes, and need not agree about which three. Conversely, if the statute creates several elements, the several "violations," then the jury must agree unanimously about which three crimes the defendant committed. Pp. 817-818.

(b) Considerations of language, tradition, and potential unfairness support a reading of "violations" as elements rather than means. The Government has not found any legal source reading any instance of the words "violation" or "violations" as means. To hold that each "violation" here amounts to a separate element is consistent with a tradition of requiring juror unanimity where the issue is whether a defendant has engaged in conduct that violates the law. To hold the contrary is not. The CCE statute's breadth aggravates the dangers of unfairness that treating each violation as a means would risk. The statute's word "vio-

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Syllabus

lations" 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 § 848's series requirement. This consideration 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. Moreover, the Government may seek to prove that a defendant has been involved in numerous underlying violations, significantly aggravating the risk that jurors will fail to focus on specific factual detail unless required to do so. Finally, this Court has indicated that the Constitution itself limits a State's power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition. Schad v. Arizona, 501 U. S. 624, 632-633. Pp. 818-820.

(c) The Government's arguments for interpreting "violations" as means-that the words "continuing series" focus on the drug business, not on the particular violations that constitute the business; that an analogy can be found in state courts' interpretations of statutes permitting conviction upon proof of a continuous course of conduct without jury agreement on a specific underlying crime; that a juryunanimity requirement will make the statute's crime too difficult to prove; and that other portions of the statute do not require jury unanimity-are not sufficiently powerful to overcome the foregoing considerations. Pp. 820-824.

(d) The questions whether to engage in harmless-error analysis, and if so, whether the error was harmless in this case, are left to the Seventh Circuit on remand. P. 824.

130 F. 3d 765, vacated and remanded.

BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, SCALIA, SOUTER, and THOMAS, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which O'CONNOR and GINSBURG, JJ., joined, post, p. 825.

William A. Barnett, Jr., by appointment of the Court, 525 U. S. 959, argued the cause and filed briefs for petitioner.

Irving L. Gornstein argued the cause for the United States. With him on the brief were Solicitor General Wax-

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man, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Joel M. Gershowitz. *

JUSTICE BREYER delivered the opinion of the Court.

A federal criminal statute forbids any "person" from "engag[ing] in a continuing criminal enterprise." 84 Stat. 1264, 21 U. S. C. § 848(a). It defines "continuing criminal enterprise" (CCE) as involving a "violat[ion]" of the drug statutes where "such violation is a part of a continuing series of violations." § 848(c). 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."

I

The CCE statute imposes a mandatory minimum prison term of at least 20 years upon a person who engages in a "continuing criminal enterprise." § 848(a). It says:

"[A] person is engaged in a continuing criminal enterprise if-

"(1) he violates any provision of [the federal drug laws, i. e.,] this subchapter or subchapter II of this chapter the punishment for which is a felony, and

"(2) such violation is a part of a continuing series of violations of [the federal drug laws, i. e.,] this subchapter or subchapter II of this chapter-

"(A) which are undertaken by such person in concert with five or more other persons with respect to whom

*Wendy Sibbison, David M. Porter, and Edward M. Chikofsky filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.

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such person occupies a position of organizer [or supervisor or manager] and

"(B) from which such person obtains substantial income or resources." § 848(c).

In 1994 the Federal Government charged the petitioner, Eddie Richardson, with violating this statute. The Government presented evidence designed to show that in 1970 Richardson had organized a Chicago street gang called the Undertaker Vice Lords; that the gang had distributed heroin, crack cocaine, and powder cocaine over a period of years stretching from 1984 to 1991; and that Richardson, known as "King of all the Undertakers," had run the gang, managed the sales, and obtained substantial income from those unlawful activities. The jury convicted Richardson.

The question before us arises out of the trial court's instruction about the statute's "series of violations" requirement. The judge rejected Richardson's proposal to instruct the jury that it must "unanimously agree on which three acts constituted [the] series of violations." App. 21. Instead, the judge instructed the jurors that they "must unanimously agree that the defendant committed at least three federal narcotics offenses," while adding, "[y]ou do not ... have to agree as to the particular three or more federal narcotics offenses committed by the defendant." Id., at 37. On appeal, the Seventh Circuit upheld the trial judge's instruction. 130 F. 3d 765, 779 (1997). Recognizing a split in the Circuits on the matter, we granted certiorari. Compare United States v. Edmonds, 80 F. 3d 810, 822 (CA3 1996) (en banc) (jury must unanimously agree on which "violations" constitute the series), with United States v. Hall, 93 F. 3d 126, 129 (CA4 1996) (unanimity with respect to particular "violations" is not required), and United States v. Anderson, 39 F. 3d 331, 350-351 (CADC 1994) (same). We now conclude that unanimity in respect to each individual violation is necessary.

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II

Federal crimes are made up of factual elements, which are ordinarily listed in the statute that defines the crime. A (hypothetical) robbery statute, for example, that makes it a crime (1) to take (2) from a person (3) through force or the threat of force (4) property (5) belonging to a bank would have defined the crime of robbery in terms of the five elements just mentioned. Cf. 18 U. S. C. § 2113(a). Calling a particular kind of fact an "element" carries certain legal consequences. Almendarez-Torres v. United States, 523 U. S. 224, 239 (1998). The consequence that matters for this case is that a jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element. Johnson v. Louisiana, 406 U. S. 356, 369-371 (1972) (Powell, J., concurring); Andres v. United States, 333 U. S. 740, 748 (1948); Fed. Rule Crim. Proc. 31(a).

The question before us arises because a federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime. Schad v. Arizona, 501 U. S. 624, 631-632 (1991) (plurality opinion); Andersen v. United States, 170 U. S. 481, 499-501 (1898). Where, for example, an element of robbery is force or the threat of force,...