Compound-Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts

Beginning of article

In his first judicial act, Daniel, who would become one of the Hebrew Bible's most respected judges, saved an innocent woman from a death sentence.(1) Susanna, wife of the wealthy and respected Joakim, went to her garden to bathe. In the garden, two lecherous elders trapped her alone and demanded that she have sex with them. If she refused, they threatened to accuse her publicly of having sex with a man other than her husband, a crime whose punishment was death. Susanna did refuse, and the next day the elders accused her of adultery, telling the judges that they saw a young man lying with her in her garden. The judges believed the elders and sentenced Susanna to death.

As Susanna was being led to her execution, Daniel cried out, "Are you such fools, O Israelites! To condemn a woman of Israel without ... clear evidence?"(2) Questioning the elders separately, Daniel asked each, "[U]nder which tree did you see them together?"(3) One elder answered, "Under a mastic tree";(4) the other answered, "Under an oak."(5) On the basis of this lack of agreement, Susanna was freed. "Thus was innocent blood spared that day.... And from that day onward Daniel was greatly esteemed by the people."(6)

In modem criminal procedure terminology, Daniel was confronted with a problem of verdict specificity. To Daniel, a determination that the accused was guilty of the crime charged was not enough. Instead, he demanded "clear evidence" of how the crime was committed. Without such evidence, Daniel said, the judges were "passing unjust sentences" and "condemning the innocent."(7)

Like Daniel, the United States Constitution demands a certain level of verdict specificity. The Sixth Amendment requires that convicting jurors in federal criminal trials be unanimous not solely as to the ultimate question of guilt or innocence, but also as to the principal factual elements of the crime charged. However, the recent advent of the compound-complex criminal statute, with its novel definitions of crime and its elements, has strained the limits of criminal procedure and effectively taken the right to a unanimous verdict away from a large and growing class of federal criminal defendants.

Compound-complex criminal statutes generally target large-scale criminal activity by requiring that a defendant have engaged in a "pattern" or "series" of criminal conduct. The "pattern" or "series" must consist, in turn, of a specific number of predicate acts defined elsewhere in the criminal code. The most difficult challenge raised by compound-complex statutes is one of verdict specificity. In order to convict a defendant of a compound-complex crime, must a jury unanimously agree upon exactly which acts the defendant committed? Or need the jury only unanimously agree that the defendant committed a certain number of such acts, without specifically agreeing on their identity? This question has split the circuit courts, making it particularly appropriate for review under the Constitution.

The Constitution does speak to questions of jury unanimity and verdict specificity. The Sixth Amendment requires unanimity as to the principal factual elements underlying a specified offense.(8) In addition, the Due Process Clause of the Fifth Amendment constrains Congress' ability to define the elements of a criminal offense.9 Unfortunately, courts have been unable to construct from these constitutional rules an analytical framework through which to evaluate verdict specificity problems in compound-complex criminal statutes. Nearly every court addressing the question of jury unanimity as to predicate acts has analyzed it solely in light of the Sixth Amendment's guarantee of unanimity as to the principal elements of an offense. Sixth Amendment analysis, however, does little more than frame the debate; it does not address the central question of what constitutes a principal element. The due process constraints on defining criminal activity, while proposing an answer to that question, were only recently articulated by the Supreme Court in the context of a first-degree murder statute;(10) to date, only one court has analyzed compound-complex predicate acts in light of these constraints.(11)

Most courts considering the issue under the Sixth Amendment have concluded that the Constitution does not require a federal jury to agree unanimously upon the identity of the specific predicate acts underlying a conviction for a compound-complex crime. Using the Continuing Criminal Enterprise Statute (CCE) as a case study, this Note argues that the Fifth Amendment's due process requirements demand that juries unanimously agree upon the specific predicate offenses necessary for a compound-complex conviction. On a functional level, this constitutional prescription requires judges to issue specific unanimity instructions to juries whenever the prosecution has presented evidence of more than the requisite number of predicate acts. In addition, the use of special interrogatories would give meaning to this constitutional protection without destroying the additional protection a general verdict affords criminal defendants.

Part I of this Note introduces compound-complex crimes, the problem of patchwork verdicts, and the special concerns posed by their intersection. Part II discusses the constitutional constraints imposed upon judges, juries, and Congress by the Fifth and Sixth Amendments and examines the ways in which these constraints differ and the manner in which courts have confused them. This Note then proposes a framework through which the two constraints work together to demand unanimity as to the elements of a crime, yet allow juror divergence as to mere alternate means of fulfilling the elements of a crime.

Part III reviews how the courts and commentators have applied Fifth and Sixth Amendment constraints to the predicate acts required by the CCE statute. This Note then applies the constitutional framework articulated in Part II to CCE predicate acts and concludes that, together, the Fifth and Sixth Amendments demand that juries unanimously agree upon the specific predicate acts necessary for compound-complex convictions.

Finally, Part IV outlines the procedural mechanisms necessary to implement the constitutional unanimity requirement as to predicate acts. This Note concludes that the Sixth Amendment requires that judges issue specific unanimity instructions to juries whenever the prosecution presents evidence of more than the number of predicate acts required for conviction. In addition, the right to jury unanimity as to predicate acts is best protected by the use of special interrogatories in particularly complicated compound-complex criminal cases.

I. Compound-Complex Crimes and Patchwork Verdicts

Over the last twenty-five years, Congress has enacted a series of compound-complex criminal statutes in order to battle group and organizational crime in new, more effective ways. These statutes differ from traditional substantive criminal statutes in several respects. Most important, they require proof of a number of predicate offenses in order to sustain a conviction. These predicate offenses, and the compound nature of the proof they entail, pose difficult questions of jury unanimity and verdict specificity and greatly enhance the risk of "Patchwork" guilty verdicts.

A. Compound-Complex Crimes

Beginning in 1970, Congress enacted a series of laws designed to deter and punish large-scale group and organizational crime. The Racketeering Influenced and Corrupt Organizations Act (RICO)(12) is aimed at organized crime of all varieties. The CCE statute(13) targets drug kingpins. The Gambling Business Statute(14) proscribes large-scale and ongoing gambling activities. Finally, the Continuing Financial Crimes Enterprise statute (CFCE)(15) subjects group financial crime to specific federal prosecution. While each of these statutes deals with traditional forms of criminal behavior, none of them is a traditional criminal statute. Instead, these federal laws are compound-complex criminal statutes.(16)

Compound-complex criminal statutes target subject-specific group and organizational crime through a number of novel mechanisms. Most require proof of participation of a minimum number of individuals in the proscribed activity. For instance, the CCE statute requires that the defendant supervise or manage five or more people.(17) In addition, compound-complex statutes punish offenders with very severe sentences; the minimum prison term for a defendant convicted of supervising a continuing criminal enterprise is twenty years, and the maximum is life.(18)

The defining characteristic of afl compound-complex statutes is that they proscribe participation in a "pattern" or "series" of criminal conduct. The "pattern" or "series," in turn, consists of a specific number of violations of other criminal statutes. These violations are commonly termed "predicate offenses" or "predicate acts."

One of the specific elements of a CCE violation is that the defendant commit a federal drug offense as part of a specifically defined "continuing series" of violations of federal narcotics laws." The continuing series element, then, requires proof of predicate offenses. In fleshing out this requirement, the federal courts of appeals have defined a continuing series as consisting of at least three of the offenses enumerated in the statute.(20) Any commission of the multitude of federal narcotics felonies contained in subchapters I and H of Chapter 13, Title 21 of the United States Code may be counted as one of the three predicate offenses.(21) This group of felonies from which the predicates may be drawn is huge and diverse, encompassing drug crimes from simple possession to the import, export, and sale of large quantifies of controlled substances.(22) The other federal compound-complex criminal statutes contain requirements similar to the CCE's continuing series and allow the predicate offenses to be drawn from equally wide ranges of federal and state substantive crimes.(23)

B. Patchwork Verdicts

The compound nature of the proof necessary to convict under compound-complex criminal statutes raises serious questions of jury unanimity and verdict specificity. In particular, must the jury agree unanimously on the identity of the two or three predicate acts that constitute the pattern or continuing series? Or need the jury only be unanimous in concluding that three violations occurred? For example, in order to prove the continuing series element of a CCE violation, the prosecution may present evidence of four federal drug crimes, labeled A, B, C, and D, respectively. Six of the jurors may be convinced beyond a reasonable doubt that the defendant committed acts A, B, and C. The other six jurors may be convinced beyond a reasonable doubt that the defendant committed acts B, C, and D. Thus, the jury unanimously agrees only that the defendant committed two predicate offenses, B and C. However, if the jury is instructed that they need only agree unanimously that any three predicate acts were committed, they will vote to convict because each of the twelve jurors is convinced that the defendant committed three predicate offenses. Such a guilty verdict is commonly called a "patchwork verdict" because it can only result by piecing together the jurors' different conceptions of the predicate acts that satisfy the continuing series element of the offense.

Patchwork verdicts also arise outside the context of compound-complex crimes. Often the prosecutor will charge, in a single count, a number of discrete acts, any one of which would constitute a violation of the statute under which the defendant is charged.24 In other cases, the prosecutor will charge the defendant under a statute that delineates several distinct mentes reae or actus rei through which the statute could be violated.(25) In both of these situations, a jury could convict a defendant under the statute without unanimously agreeing as to exactly how the statute was violated.(26)

Compound-complex crimes present special problems of patchwork verdicts. By definition, compound-complex crimes require proof of a compound nature; proof of more than one actus reus and mens rea is required for conviction. Therefore, each time the prosecution presents evidence of more than the requisite number of predicate acts, the possibility for a patchwork verdict exists.(27)

This problem is exacerbated by the approach the government commonly takes to prosecuting compound-complex crimes. Because the government need not charge or convict the defendant for each separate predicate offense,(28) prosecutors engage in a scattershot approach to prosecuting compound-complex crimes, presenting evidence of as many predicate acts as possible with the hope of convincing the jury that the defendant committed at least the requisite number. Thus, it is common practice to present evidence of many more than the number of predicate acts needed to fulfill the pattern or series requirement.(29) As the number of possible predicate offenses increases, so does the number of combinations of offenses justifying a conviction under the statute. For instance, if a prosecutor presents evidence of seven predicate offenses in order to prove the requisite three predicates under the CCE, the jury is faced with thirty-five unique combinations of three predicate acts that would support a conviction.30 If the jury is not told that it must agree unanimously on exactly which acts support a conviction, it is possible, if not probable, that each juror will convict upon a different conception of the predicate acts committed.

In addition to the sheer number of predicate acts presented to juries in compound-complex trials, the variety of crimes eligible as predicates is astounding. Offenses eligible as predicates under the CCE range from simple possession to the manufacture and import of controlled substances.(31) RICO predicates encompass nine major categories of state law ranging from murder to bribery, and thirty-five different federal offenses varying from wire fraud to trafficking in "white slaves."(32) The broad range of crimes eligible as predicate acts under compound-complex criminal statutes makes possible a scenario in which jurors voting to convict have widely disparate views as to both the type and the severity of the "pattern" or "continuing series" in which the defendant engaged.

III. Constitutional Constraints on Juror Unanimity and

the Definition of Criminal Conduct

Courts have had tremendous difficulty analyzing the problem of patchwork verdicts both within and without the context of compound-complex crimes. The Constitution, however, does constrain the actions of judges, juries, and Congress in ways that offer a solution to the problem of patchwork verdicts. The Sixth Amendment demands jury unanimity as to the principal factual elements of an offense, but begs the central question of what, exactly, constitutes a principal element. The Due Process …