WHAT IS A CONTINUING CRIMINAL ENTERPRISE?
A Continuing Criminal Enterprise is one of the "super crimes" where our constitutional attacks were repeatedly rebuffed until the Supreme Court surprised many of us when it ruled for the defense in Richardson and held that CCE predicate acts are subject to jury unanimity and proof beyond a reasonable doubt. Unlike the RICO statute which abounds with published opinions, the published law on Continuing Criminal Enterprises is relatively sparse. There are still opportunities for defense counsel to raise constitutional challenges to the statute and to the standard prepackaged jury instructions. This arcticle focuses upon one of the many constitutional attacks that should be raised as part of every CCE defense. The core infirmity of the CCE statute is that it redefines ordinary criminal activity in essentially political terms to satisfy the public's thirst for politically created solutions to politically created problems. The resulting redefinition of two or three ordinary crimes as a "Continuing Criminal Enterprise" is often indistinguishable from a modification of the rules on grouping and criminal history calculation. Rather than change the rules of sentencing, Congress chose to invent a super statute and define a super crime. In doing so, they attempted to imbue the crime of a CCE with characteristics which Congress thought made it seem to be a distinct crime It most cases this distinction is semantic but not substantive. The supervisorial role which is already accounted for in the guidelines is reaccounted for in a CCE with a requirement over some undefined period of time to an undefined degree, five people must be supervised. The incredibly vague requirement that the CCE defendant obtain some degree of income from the criminal activity makes little sense in terms of defining either a moral wrong or the degree of criminality involved in an enterprise. Some defense counsel have argued that the income requirement actually attempts to define a size or significance element of the crime and have asked for instructions which emphasize that the income requirement is not a pure dollar amount but instead a dollar amount which reflects the overall intent of the statute. Persons charged with a CCE are at great risk. The government does not bring these cases lightly and once the case is charged, they don’t let go.