834
Kennedy, J., dissenting
Court today interprets the statute in a way foreign to Congress' intent without discussing any possible constitutional infirmity other than to say that it has "no reason to believe that Congress intended to come close to, or to test," the limits on the definition of crimes imposed by the Due Process Clause when it wrote the CCE statute. Ante, at 820.
There is no indication that Congress had any concerns about the statute's constitutionality. The Court seems to imply the contrary by citing Garrett for the proposition that Congress "sought increased procedural protections for defendants" in making CCE a separate crime, ante, at 820 (paraphrasing Garrett, 471 U. S., at 783-784). Taken in context, the passage from Garrett supports neither the Court's reading of the statute nor its invocation of constitutional doubt. Garrett held the Double Jeopardy Clause did not bar prosecution for the CCE offense after a prior conviction for one of the underlying predicate offenses. The passage in question discussed the debate in Congress over whether to impose enhanced punishments for drug kingpins by means of a separate offense or by means of a sentencing factor. The House Report cited by the Court noted that an amendment by Representative Dingell "made engagement in a continuing criminal enterprise a new and distinct offense with all its elements triable in court." H. R. Rep. No. 91-1444, pt. 1, p. 84 (1970). That is of course true, but it begs the question presented in this case, namely, whether the existence of a series is itself an element, or whether the individual offenses in that series are elements. To say that the jury must agree unanimously on the elements provides no guidance in determining what those elements are. The competing provision from Representative Poff, moreover, which would have treated engaging in a CCE as a sentencing factor, was also adopted, with the result that "both approaches are contained in the statute." Garrett, supra, at 784 (citing 21 U. S. C. §§ 848, 849, 850). There is thus no reason to think Congress thought it necessary for the jury to agree on which
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