21 U.S.C. 848: The Continuing Criminal Enterprise Kingpin Statute.

Under Section 848(a), it is illegal to engage in a “continuing criminal enterprise.” Under Section 848(c), the term “continuing criminal enterprise” means “a continuing series of felony violations” in which the defendant:

• Engages in a continuing series of felony violations under this subchapter or subchapter II;
• Acts in concert with five or more other persons;
• Occupies the role of an organizer, supervisor, or manager;
• Obtains substantial income or resources.

When federal prosecutors seek to secure a conviction under Section 848, they must be able to establish not only that there was a substantial ongoing illegal narcotics operation, but also that the defendant in question received “from which such person obtains substantial income or resources.” They must also be able to establish that the defendant occupied the role of: “occupies a position of organizer, a supervisory position, or any other position of management with respect to five or more other persons.”

To be characterized as a continuing series of federal drug violations, the violations must rise to the level of a felony and involve any provision of this subchapter or subchapter II the punishment for which is a felony.

For this conduct to turn repeated federal drug violations into a CCE violation, federal prosecutors must prove that:

1. The defendant engaged in a continuing series of violations of the federal controlled substance laws. In this context, each individual violation within the series may, in itself, be a separate criminal offense punishable by a substantial term of federal imprisonment (or several terms of imprisonment), in which case the “continuing criminal enterprise” charge serves as an additional count.

2. The defendant violated a provision of Title 21, chapter 13, for which the punishment is a felony; the violation need not be an offense of the same kind as one under 21 U.S.C. 841 or 846.

3. In the commission of these violations, the defendant acted in concert with at least five other people.

4. The defendant’s violation was part of a continuing series of violations undertaken by the defendant in concert with five or more other persons.

5. In the commission of these violations, the defendant occupied the role of an organizer, supervisor, or manager of at least five other people.

6. The defendant received “substantial income or resources” from the continuing criminal enterprise.

How do prosecutors prove the five-person leadership structure and substantial resources?

As with all criminal charges, prosecutors must be able to establish every element of a Continuing Criminal Enterprise (CCE) violation beyond a reasonable doubt. This is the same burden of proof used in other federal narcotics cases, including conspiracy charges. If any of the elements of a CCE violation are not established beyond a reasonable doubt, then the charges under Section 848 should not hold.

When attempting to satisfy the “five or more” requirement in CCE cases, prosecutors do not need to prove that five or more people worked together at the same time. Instead, all that is required is that prosecutors establish a “nexus” between the various participants. If the participants are linked, even indirectly, this can be sufficient to prove that five or more people were involved.

Similarly, a defendant does not need to maintain the same relationship with every participant in the CCE. In some cases, the defendant may have acted as a supervisor for certain participants while acting more like a co-conspirator for others. As long as the relationships are substantiated and the defendant is shown to be an organizer, manager, or supervisor, this will suffice.

A defendant does not need to be the sole leader (or even the highest-ranking leader) to be subject to federal prosecution under Section 848. Multiple people can hold leadership roles within a CCE.

When filing a CCE indictment, prosecutors must establish the identity of each participant who was part of the continuing criminal enterprise. However, this does not mean they can just use the participants’ legal names. Instead, they can use aliases or descriptors, so long as the identifiers are sufficient to establish who the individual is.

What can an ordinary CCE conviction cost in prison, fines, and forfeited property?

Continuing Criminal Enterprise violations are taken extremely seriously by the federal government, and federal prosecutors pursue these charges aggressively. An ordinary conviction under Section 848(a) carries a minimum prison sentence of 20 years of imprisonment. The maximum sentence for these offenses is life imprisonment, and the maximum fine that may be assessed against an individual convicted of this offense is the greater of the amount authorized under Title 18 or $2 million. Non-individual defendants who are convicted of an ordinary CCE offense can face fines up to the greater of the amount authorized under Title 18 or $5 million. In many cases, defendants who are being charged under Section 848 will also be facing additional charges for related conduct, and will often be facing forfeiture of their property as well. However, even in these circumstances, the penalty range for a single ordinary conviction under Section 848 remains the same.

The penalty range for a Continuing Criminal Enterprise (CCE) violation also increases for repeat offenders. If a defendant engages in such activity after one or more prior convictions under Section 848 have become final, the minimum prison sentence is increased to 30 years of imprisonment. The maximum penalty for a repeat offender remains life imprisonment, and the maximum fines for a repeat offender increase as well, to the greater of twice the amount authorized under Title 18 or $4 million for individuals, and the greater of twice the amount authorized under Title 18 or $10 million for non-individual defendants. As with ordinary convictions, those convicted under Section 848 as repeat offenders may also face forfeiture, and they may face additional charges as well. Nonetheless, the penalty range under Section 848(a) for repeat offenders remains consistent, regardless of other charges or conditions of the case.

The attorneys at Spodek Law Group carry more than fifty years of combined experience between them.

When does Section 848 impose mandatory life or expose a defendant to death?

The “super-kingpin” provision of Section 848(b) is an enhanced sentencing provision that applies in cases involving:

• A defendant who is shown to be the principal administrator, organizer, or leader of the CCE, and;
• A defendant who is also found to have committed either of the two “super-kingpin” qualifying offenses.

The “super-kingpin” qualifying offenses are:

• “The violation referred to in subsection (c)(1) involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B);
• A continuing series of felony violations of Title 21, in each of which the defendant acted in concert with five or more other people, and from which the defendant derived gross receipts of $10 million or more during any twelve-month period of time.

The “gross receipts” measured under this alternative refers to all money received in relation to the continuing criminal enterprise. This is not the net income from the enterprise (i.e., money remaining after taking into account all business expenses), but rather the amount of gross revenue received.

A qualifying super-kingpin conviction under Section 848(b) results in mandatory life imprisonment. In addition to receiving substantial criminal penalties, individuals convicted of continuing criminal enterprise violations under Section 848 can also face the forfeiture of all assets acquired with their illicit proceeds.

How long can federal prosecutors wait, and what other charges can accompany a Continuing Criminal Enterprise case?

If you are being charged under Section 848, the charge will be prosecuted under federal law rather than a state continuing criminal enterprise statute. A Continuing Criminal Enterprise (CCE) charge will also often be pursued in tandem with additional charges under the Racketeer Influenced and Corrupt Organizations (RICO) statute. However, RICO is significantly different from Section 848 because the federal RICO statute reaches to many different categories of criminal behavior that constitute “racketeering,” well beyond just those that involve violations of Title 21’s controlled-substance provisions. Furthermore, the federal RICO statute does not contain Section 848’s express requirement that a qualifying offense must have involved acting in concert with at least five other people who each occupied an organizer, supervisor, or manager role.

Depending on the circumstances involved, federal prosecutors may have an unlimited amount of time to bring charges, or they may have five years. This depends on whether the offense is a capital federal offense or not. Under Section 3281, capital federal offenses have no statute of limitations. Under Section 3282, non-capital federal offenses generally carry a five-year statute of limitations period. While an ordinary Continuing Criminal Enterprise conviction under Section 848(a) is not a capital offense, it carries the possibility of life imprisonment but does not carry the death penalty. As a result, individuals charged with CCE violations may need to defend against allegations related to conduct and income-generation that occurred five, ten, or twenty years ago.

For individuals who are facing federal investigation or charges under Section 848, these issues can complicate matters significantly. With these factors in mind, defendants and their families are strongly encouraged to engage their federal criminal defense attorney as soon as possible.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 888 348 8028.