Federal RICO Drug Enterprise Charges: Continuing Criminal Enterprise.

The federal statute making operation of a continuing criminal enterprise a criminal offense is codified at 21 U.S.C. § 848(a). It defines a continuing criminal enterprise (CCE) as a person’s felony violation of Title 21’s drug laws that is part of a continuing series of violations undertaken in concert with five or more other persons whom the person organizes, supervises, or manages and from which the person obtains substantial income or resources. The terms “this subchapter” and “subchapter II” refer to the federal controlled-substances provisions in Title 21; the statute covers felony violations of those provisions.

Breaking down the specific elements required for an ordinary federal CCE conviction, prosecutors must establish that:

• (i) You committed a continuing series of federal felony drug violations. The U.S. Supreme Court has described a continuing series as one that is “such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter-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 from which such person obtains substantial income or resources.” While the courts have generally rejected the notion that continuing series violations are always required in federal drug cases, they have reaffirmed the continuing series requirement in federal CCE cases. However, the continuing series requirement is also not an absolute rule, with some circuit courts holding that no minimum number of violations is needed to constitute a continuing series, so long as the violations constitute an “ongoing course of conduct.”
• (ii) You committed the drug-trafficking violations in concert with five or more other people. Again, the courts have generally rejected the notion that five people must have a continuing association, which is a key distinction between CCE charges and federal RICO charges.
• (iii) You organized, supervised, or managed those five or more people. This requires more than mere association, and the U.S. Supreme Court has specified that “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” cannot be convicted of a continuing criminal enterprise under the federal statute.
• (iv) You obtained substantial income or resources from the continuing series of drug-trafficking violations. This element is also a key distinction between CCE charges and federal RICO charges; in federal RICO cases, prosecutors are not required to prove that defendants obtained substantial income or resources from their involvement in a criminal enterprise.

How Does Evidence Show a Continuing Managed Drug Enterprise?

As a result of its specific language, the federal statute governing continuing criminal enterprises applies only to continuing violations of federal controlled-substance laws. The U.S. Supreme Court has characterized the federal continuing criminal enterprise statute as “A common-sense reading of this definition reveals a carefully crafted prohibition aimed at a special problem. This language is designed to reach the "top brass" in the drug rings, not the lieutenants and foot soldiers.” It describes the statute as applying to what it considers to be “major traffickers” who manage others in order to engage in a continuing series of violations of the federal narcotics statute.

Because a continuing criminal enterprise (CCE) conviction requires proof of both a continuing series of drug-trafficking offenses and management of five or more other people, prosecutors may have to rely on testimony from cooperating witnesses to establish these elements. If you are being accused of participating in a federal CCE, an experienced federal defense attorney will want to know:

• Did prosecutors obtain testimony from someone who claims to have been involved in the enterprise? Did the person claim to have committed a series of drug violations?
• Did the person claim that you played a supervisory role in the enterprise?
• Do they claim to have been supervised by others within the enterprise?

In federal CCE cases, evidence of wiretaps, financial records, physical surveillance, informants, and communications between participants frequently appears as well. If you are facing allegations of participating in a continuing criminal enterprise, your attorney will also want to know:

• How are prosecutors using the wiretap evidence to implicate you in the enterprise?
• How is the government showing that you obtained substantial income or resources from the drug violations involved?
• Do the prosecutors have evidence showing you were in charge of a particular drug-trafficking operation?

If the government is alleging your involvement in a federal CCE, there are various defenses available depending on the circumstances. It is one of the most complex charges that the federal government brings, and even when there is evidence that you have been involved in drug transactions, this alone does not establish that you engaged in a managed enterprise. Merely being associated with individuals who are suspected of involvement in a continuing criminal enterprise does not itself establish that you are supervising or managing the enterprise. It also may not be possible to establish that the various drug violations that are at issue constitute part of one continuing enterprise.

Why Can CCE, Conspiracy, and RICO Charges Overlap Without Being Identical?

RICO is a different statute that can cover many more activities than just drug trafficking. It targets a broad range of specified racketeering activities, including fraud and extortion as well as narcotics offenses, and its definition of an “enterprise” can include everything from formal business entities to informal associations-in-fact. A RICO conviction generally requires proof of a “pattern” of racketeering activity, which typically involves at least two racketeering acts within a 10-year window.

As a result, even if the same parties are involved, RICO and CCE allegations are distinct. Although prosecutors may pursue both in cases involving organized crime, the two crimes have different statutory elements.

While CCE allegations involve accusations of criminal conspiracy, they are also fundamentally different. Under 21 U.S.C. § 846, a federal drug conspiracy conviction requires proof that the defendant engaged in an agreement to violate one or more federal drug laws. It does not require proof that you participated in a continuing enterprise, that you worked in concert with at least five other people, that you played a supervisory or managerial role, or that you received substantial income from the violation(s) at issue. This makes federal drug conspiracy charges a much common and broader prosecution tool in the federal government’s attempts to dismantle alleged drug rings.

Even though RICO and CCE charges can both be imposed for conducting business through organized crime, the charges have different elements and different sentencing requirements. Drug traffickers who face CCE or RICO charges can also face sentencing requirements for individual violations of the Controlled Substances Act. While the government will likely seek to prove criminal responsibility in all of these cases, a defendant must mount an effective defense against each individual charge.

Spodek Law Group is selective about the cases it takes, on the view that a firm should only take a client it can actually help.

Which Defense Theories Can Attack the Government’s Proof in a Federal CCE Case?

When facing a continuing criminal enterprise charge, there are several defenses that may be available. Each defense has its own unique requirements and may be viable regardless of the government’s case.

• Suppression Litigation, When the federal government is pursuing a CCE case, the evidence that they have tends to be substantial. In many cases, the federal government obtains that evidence through invasive investigative techniques such as physical and electronic surveillance. If the government obtained the evidence unlawfully, you may be able to suppress it, effectively removing it from the prosecution’s case.
• Attacking Witness Testimony, Witness testimony frequently plays a role in CCE cases, as federal prosecutors often rely on testimony from cooperating witnesses who are implicated in the case. Your attorney can challenge the testimony of a cooperating witness on several grounds, including motives for cooperating, credibility concerns based on inconsistencies or lack of personal knowledge, and other factors that may be relevant.
• Entrapment, In some cases, the government will use undercover agents or informants to try to entrap individuals into allegedly participating in drug violations. Generally, this requires proving that the government induced the defendant to commit the crime and that the defendant had no predisposition to violate the law. Entrapment is a complex defense that requires a detailed analysis of both federal precedent and the government’s evidence.
• Disputing Participation in the Enterprise, A continuing criminal enterprise charge requires proof that the defendant organized, supervised, or managed a continuing series of drug violations in concert with at least five others. While evidence of participating in some drug transactions may be useful to prove this, it alone does not show that the defendant managed the group or the drug operations. If you can demonstrate that the alleged participants were not organized, supervised, or managed, you may be able to beat the allegations.
• Disputing Use of Proceeds from the Enterprise, Finally, a defendant in a federal CCE case can challenge whether they obtained substantial income or resources from the enterprise.

What Prison, Fine, Forfeiture, and Enhancement Risks Follow a CCE Conviction?

With substantial penalties for federal CCE convictions, defendants are eligible for criminal forfeiture and an extensive array of other penalties and sentencing enhancements as well. With that in mind, here is a general overview of the potential consequences of a federal CCE conviction for each of the relevant statute provisions.

Section 848(a), Ordinary Federal CCE Offense

In a standard CCE case where the defendant has no prior federal narcotics conviction and did not manage the enterprise as a principal, the sentencing ranges are:

• Imprisonment, Twenty years to life imprisonment
• Fines, Up to $2 million for individual defendants, and up to $5 million for organizations
• Forfeiture, As stated in 21 U.S.C. § 853(a), a person convicted of a qualifying Title 21 drug offense shall forfeit to the United States property constituting or derived from proceeds obtained directly or indirectly as a result of the violation, property used or intended to be used to commit or facilitate it, and, for a CCE conviction, specified interests in the enterprise. Under 21 U.S.C. § 853(a), property constituting or derived from proceeds the person obtained, directly or indirectly, as the result of the violation shall be forfeited, and a CCE defendant must also forfeit specified interests in, claims against, and property or contractual rights affording a source of control over the enterprise.

Section 848(a), Aggravating Factors and Enhanced Penalties

In a CCE case involving aggravating factors, the mandatory minimum and maximum sentences include:

• Prior § 848 Conviction, If one or more prior convictions under § 848 have become final, the mandatory minimum sentence is thirty years’ imprisonment.
• Other Aggravating Factors, Section 848(a) does not impose a separate 20-year mandatory minimum based on the listed factors.
• Intentional killing resulting from conduct covered by the continuing criminal enterprise provision
• Use of a narcotic drug during the commission of the offense
• Use of a firearm, destructive device, or dangerous weapon during the commission of the offense

the mandatory minimum sentence is twenty years’ imprisonment. However, these aggravating factors are less certain and would be subject to the arguments and evidence presented in each case.

Section 848(b), Principal ADMINISTRATOR, a PRINCIPAL ORGANIZER, or LEADER

Section 848(b), if one of the additional conditions in § 848(b)(2) is met, provides mandatory life imprisonment for those who are found to be the “such person is the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders” Prosecutors must prove that a defendant is in fact the principal administrator, organizer, or leader before the sentence can be enhanced. With the potential for mandatory life imprisonment, this becomes an extremely consequential point in cases brought under Section 848(b).

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 888 348 8028.