OCTOBER TERM, 1998
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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