814
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 jury-unanimity 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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