THE SHELLOW COLLECTION
 Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow Collection Table of Contents

Controlled Substances (Continuing Criminal Enterprise) (21 USC 848)

    1.    Continuing Criminal Enterprise: Elements
    2.    Definition Of "Continuing Series Of Violations"
    3.    Continuing Criminal Enterprise: "Series" Defined
    4.    Continuing Criminal Enterprise: There Must Be At Least Three Offenses in 
           One Of The Subchapters; Unanimity
    5.    Continuing Series Of Violations Must Be A Series Of Substantive Violations
    6.    "Substantial Income And Resources" Defined
    7.    Defendant Must Be In Position Of Organizer, Supervisor Or Other Position 
           Of Management
    8.    Continuing Criminal Enterprise: Jury Should Consider Seriousness Of Conviction
    9.    CCE: Acting In Concert
    10.  Continuing Criminal Enterprise Is Substantially Separate Crime
    11.  Engaging In A Continuing Criminal Enterprise Or Participating In A Conspiracy 
           Are Not Violations 
           Included In Definition Of Offenses Constituting a Pattern of Racketeering Activity
    12.  Continuing Criminal Enterprise And Conspiracy Distinguished
    13.  Codefendant’s Exaggerating Defendant’s Role In Hopes To Reduce 
           Sentence Or To Conceal Earnings In Enterprise
    14.  Conspiracy To Import Marijuana And Conspiracies To Possess Marijuana 
           With Intent To Distribute As Both Lesser Included Offenses
    15.  Conspiracy (21 USC 846) As Lesser Included Offense

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

1.    Continuing Criminal Enterprise: Elements

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    Title 21, United States Code, section 848, makes it a federal crime or offense for anyone to engage in what is called a "continuing criminal enterprise" involving controlled substances. The government charges in count 18 that defendant __________ (name of defendant) was engaged in a continuing criminal enterprise.

    In order for __________ (name of defendant) to be found guilty of engaging in a continuing criminal enterprise, the government must prove five things beyond a reasonable doubt:

    First, the defendant committed at least one of the offenses of possessing with intent to distribute or distributing cocaine or marijuana in violation of section 841(a)(1) of Title 21 of the United States Code as charged in counts ________ of the indictment or of utilizing any communication facility in the commission of a violation of the drug laws in violation of section 843(b) of Title 21 of the United States Code as charged in count ______ of the indictment;

    Second, the offenses were part of a series of three related or ongoing activities, as distinguished from isolated and disconnected acts, that constituted offenses committed by the defendant over a definite period of time in violation of the federal narcotics laws which make it a crime to possess with intent to deliver and to distribute marijuana or cocaine;

    Third, the defendant committed the offense or offenses together with five or more other persons;

    Fourth, the defendant acted as an organizer, supervisor or manager of the five or more other other persons; and

    Fifth, the defendant actually obtained substantial income or resources from these acts.

    Unless you believe beyond a reasonable doubt that all five things are true, you must find the defendant not guilty of this crime.

AUTHORITIES:

United States v. Markowski, 772 F.2d 358, 360-61 (7th Cir. 1985); Garrett v. United States, 105 S. Ct. 2407, 2415 (1985);Manual of Model Jury Instructions for the Ninth Circuit, No. 9.03D (1985); Pattern Jury Instructions (Criminal) [for the Eleventh Circuit] (1985), No. 63.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Bueno-Risquet, No. 85-1346 (2d Cir. 1986).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances.

RELATED NCJIC MATERIALS:

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

2.    Definition Of "Continuing Series Of Violations"

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION

    One of the elements of the offense of engaging in a continuing criminal enterprise is that the defendant committed a continuing series of violations of subchapter I or subchapter II of the comprehensive drug abuse control act of 1970.

    A continuing series of violations means that he committed at least three of such violations and that they were committed one after the other rather than at the same time.

AUTHORITIES:

United States v. Phillips, 664 F.2d 971, 1034 (5th Cir. Unit B, 1981), cert. denied 102 S.Ct. 2965 (1982); United States v. Valenzuela, 596 F.2d 1361, 1367 (9th Cir.), cert. denied, 444 U.S. 865 (1979); United States v. Bergdoll, 412 F. Supp. 1308, 1317 (D. Del. 1976).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

RELATED NCJIC MATERIALS:

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

3.    Continuing Criminal Enterprise: "Series" Defined

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The word "series" in the definition of the continuing criminal enterprise statute means three or more drug-related offenses.

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

RELATED NCJIC MATERIALS:

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

4.    Continuing Criminal Enterprise: There Must Be At Least Three Offenses in One Of The Subchapters; Unanimity

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    The offense of engaging in a continuing criminal enterprise in violation of §848 of Title 21, United States Code, requires that the defendant commit a continuing series of violations of subchapter I or subchapter II of the Comprehensive Drug Abuse Control Act of 1970. In general offenses defined in subchapter I are related to acts within the United States, while offenses defined in subchapter II relate to importation of controlled substances.

    The series of violations which are an element of the crime of engaging in a continuing criminal enterprise must consist of at least three offenses in one of these subchapters. That is, the series cannot only consist of one crime in one subchapter and two crimes in the other subchapter. At least three violations of the same subchapter must have been committed in order to prove this element of the offense.

AUTHORITIES:

21 USC 848(b)(2).

SAMPLE INSTRUCTION # 2:

    The second element the government must prove beyond a reasonable doubt is that this offense was part of a continuing series of violations of the federal controlled substance laws. A continuing series of violations is three or more such violations committed over a definite period of time. These violations do not have to be separate counts in the indictment, as long as you find that the defendant had the intent to violate the controlled substance laws when he committed these acts.

    [You must, however, unanimously agree on which three acts constitute the continuing series of violations.] If you cannot so unanimously agree, you must find the defendant not guilty of Count One of the indictment.

AUTHORITIES:

United States v. Samuelson, 697 F.2d 255 (8th Cir. 1983); United States v. Losada, 674 F.2d 167 (2d Cir.), cert. denied, 457 U.S. 1125 (1982); United States v. Phillips, 664 F.2d 971 (5th Cir. 1981), cert. denied, 457 U.S. 1136 (1982); United States v. Valenzuela, 596 F.2d 1361 (9th Cir.), cert. denied, 444 U.S. 865 (1979).

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Napue, No. 84-CR-155 (N.D. Ill. 1985) [bracketed sentence only].

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

RELATED NCJIC MATERIALS:

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

5.    Continuing Series Of Violations Must Be A Series Of Substantive Violations

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    The continuing series of violations which is one of the elements of the offense of engaging in a continuing criminal enterprise must be a series of substantive violations. That is, neither a conspiracy to ________ (violation, e.g., possess marijuana with intent to distribute it, a conspiracy to distribute marijuana, nor a conspiracy to import marijuana) may serve as a violation of subchapter I or subchapter II for the purpose of proving the offense of engaging in a continuing criminal enterprise.

AUTHORITIES:

United States v. Lurz, 666 F.2d 69, 76 (4th Cir. 1982); United States v. Stricklin, 591 F.2d 1112, 1123-24 (5th Cir.), cert. denied, 444 U.S. 963 (1979).

SAMPLE INSTRUCTION # 2:

    The continuing series of violations which form one of the elements of the crime of engaging in a continuing criminal enterprise must consist of a series of substantive offenses. Neither conspiracies, nor attempts to commit violations of the Controlled Substances Act constitute offenses under subchapters I or II for the purpose of proving that a defendant committed the crime of engaging in a continuing criminal enterprise.

AUTHORITIES:

United States v. Lurz, 666 F.2d 69, 76 (4th Cir. 1982); United States v. Stricklin, 591 F.2d 1112, 1123-24 (5th Cir. 1979), cert. denied, 444 U.S. 963 (1979).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

RELATED NCJIC MATERIALS:

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

6.    "Substantial Income And Resources" Defined

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    One of the elements of the offense of engaging in a continuing criminal enterprise is that the defendant obtain substantial income and resources from the continuing series of violations of subchapters I and II. The expression "substantial income and resources" refers to income received by the defendant which (he/she) was entitled to retain. A defendant who receives substantial money from controlled substance transactions, but does not receive it for (his/her) own benefit, but merely as a conduit to another, has not received "substantial income and resources" from the series of violations.

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

RELATED NCJIC MATERIALS:

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

7.    Defendant Must Be In Position Of Organizer, Supervisor Or Other Position Of Management

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    One of the elements of engaging in a continuing criminal enterprise is that a defendant must have acted in concert with five or more other persons with respect to whom (he/she) occupied a position of organizer, supervisor or other position of management.

    One who is merely the owner of marijuana is not by virtue of such ownership necessarily an organizer, supervisor or manager. The offense requires some type of executive activity or control and not merely title to the contraband.

AUTHORITIES:

United States v. Valenzuela, 596 F.2d 1361, 1368 (9th Cir.), cert. denied, 444 U.S. 865 (1979); United States v. Johnson, 575 F.2d 1347, 1355 (5th Cir. 1978), cert. den. sub nom. Lipper v. United States, 440 U.S. 907 (1979).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

RELATED NCJIC MATERIALS:

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

8.    Continuing Criminal Enterprise: Jury Should Consider Seriousness Of Conviction

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    A person who engages in drug-related activities may have violated a number of different laws. Some have penalties which are less severe than others. One of the least severe is the crime of using a telephone to facilitate a drug transaction. Although it is a felony, it is less severe, for example, than a conspiracy to distribute the drugs. By far the most severe drug-related offense, is that of engaging in a continuing criminal enterprise. It is one of the most serious federal crimes enacted by Congress. The only crimes more serious are such offenses as killing the President and treason. Upon conviction, a defendant can have all of (his/her) profits forfeited and be committed to spend the rest of (his/her) life in prison without parole. Accordingly, a jury should be very careful before convicting someone for this crime. It would be improper for a prosecutor to ask a jury to convict someone for this crime, if the evidence it had heard did not support the charge, and if the only purpose in bringing the indictment was to intimidate the defendant and force (him/her) to plead guilty to a lesser charge in order to avoid taking a chance that (he/she) would be imprisoned for life.

    A person cannot be convicted for engaging in a continuing criminal enterprise unless a jury finds beyond a reasonable doubt that (he/she) has violated the drug laws of the United States as part of a continuing series of violations, and has done so in concert with five or more other persons. It requires more than that (he/she) merely associate with these persons, or conspire with them; it must be shown that (he/she) was an organizer of the enterprise or in a supervisory or management position. Further, it must be shown that the person obtained substantial income or resources from this continuing series of violations.

    If the evidence has merely shown that a person has associated or conspired with others to violate the drug laws and has committed drug-related crimes as a result of such conspiracy, but not that (he/she) has engaged in a continuing criminal enterprise, then (he/she) should be convicted for the conspiracy and the substantive offenses, but not for being a member of a continuing criminal enterprise. Although conspiracy and substantive offenses are serious crimes, they, even in combination, are not as serious as only one charge of being a member of a continuing criminal enterprise.

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

See also THE SHELLOW COLLECTION: Conspiracy.

RELATED NCJIC MATERIALS:

See NCJIC Chapter 83: Conspiracy.

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

9.    CCE: Acting In Concert

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    To act in concert with five or more other persons means to act with the same goals in mind. Merely because a defendant conspires with five or more persons does not mean that (he/she) acted in concert with them for the purpose of establishing this element of the crime of engaging in a continuing criminal enterprise. Acting in concert means something different from conspiring; the gist of a conspiracy is the agreement; the gist of acting in concert is joint conduct.

SAMPLE INSTRUCTION # 2:

    The word "concert" as it appears in the statute defining engaging in a continuing criminal enterprise signifies an agreement among the defendant and five or more persons in a common plan or enterprise.

AUTHORITIES:

United States v. Valenzuela, 596 F.2d 1361, 1367 (9th Cir. 1979); United States v. Stricklin, 591 F.2d 1112, 1113 (5th Cir.), cert. denied, 444 U.S. 963 (1979); Jeffers v. United States, 432 U.S. 137, 148-49 n.14 (1977).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

RELATED NCJIC MATERIALS:

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

10.    Continuing Criminal Enterprise Is Substantially Separate Crime

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    A continuing criminal enterprise is not a degree of conspiracy to violate drug laws, but is a substantially separate crime.

AUTHORITY:

Jeffers v. United States, 432 U.S. 137, 150 (1977).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

RELATED NCJIC MATERIALS:

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

11.    Engaging In A Continuing Criminal Enterprise Or Participating In A Conspiracy Are Not Violations Included In Definition Of Offenses Constituting a Pattern of Racketeering Activity

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    Count ____ charges __________ (name of defendant) with engaging in a pattern of racketeering activity by committing certain violations of Title 21, United States Code. Neither engaging in a continuing criminal enterprise, nor participating in a conspiracy, is a violation included within the definition of offenses constituting a pattern of racketeering activity.

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

See also THE SHELLOW COLLECTION: Conspiracy.

RELATED NCJIC MATERIALS:

See NCJIC Chapter 83: Conspiracy.

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

12.    Continuing Criminal Enterprise And Conspiracy Distinguished

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    Engaging in a continuing criminal enterprise is not a degree of conspiratorial activity. Conviction for engaging in a continuing criminal enterprise requires more than a mere showing that the conspiracy is complex and the profits enormous.

    The continuing criminal enterprise statute is not aimed at persons who are merely members of conspiracies, no matter how large or well-organized the conspiracies might be. The crime is aimed at those who organize and manage conspiracies; those who conceive and coordinate the activities of the enterprise.

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

See also THE SHELLOW COLLECTION: Conspiracy.

RELATED NCJIC MATERIALS:

See NCJIC Chapter 83: Conspiracy.

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

13.    Codefendant’s Exaggerating Defendant’s Role In Hopes To Reduce Sentence Or To Conceal Earnings In Enterprise

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

    It is __________’s (name of defendant) theory of defense that (he/she) was neither an organizer, manager nor supervisor, and that __________ (name of codefendant) exaggerated __________’s (name of defendant) importance because (he/she) hoped that the defendant’s conviction under the continuing criminal enterprise statute would encourage the United States Attorney to make a strong favorable recommendation for consideration on (his/her) motion to reduce (his/her) sentences.

SAMPLE INSTRUCTION # 2:

    It is __________’s (name of defendant) theory of defense that __________ (name of codefendant) exaggerated the importance of __________ (name of defendant), and minimized (his/her) own role, in order to conceal from the government the amount of (his/her ) earnings from the __________ (controlled substance) ventures and from (his/her) investments of these earnings.

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

RELATED NCJIC MATERIALS:

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

14.    Conspiracy To Import Marijuana And Conspiracies To Possess Marijuana With Intent To Distribute As Both Lesser Included Offenses

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    Conspiracies to import marijuana and conspiracies to possess marijuana with intent to distribute it are both lesser included offenses within the offense of engaging in a continuing criminal enterprise and, accordingly, a jury should not convict a defendant of both a conspiracy and engaging in a continuing criminal enterprise.

AUTHORITIES:

United States v. Lurz, 666 F.2d 69, 76 (4th Cir. 1982); United States v. Phillips, 664 F.2d 971, 1009 (5th Cir. 1981); United States v. Stricklin, 591 F.2d 1112, 1123-24 (5th Cir. 1979), cert. denied, 444 U.S. 963 (1979); United States v. Sperling, 560 F.2d 1050, 1054-55 (2d Cir. 1977); Jeffers v. United States, 432 U.S. 137, 153 (1977).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

See also THE SHELLOW COLLECTION: Conspiracy.

RELATED NCJIC MATERIALS:

See NCJIC Chapter 83: Conspiracy.

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

15.    Conspiracy (21 USC 846) As Lesser Included Offense

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The crime of continuing criminal enterprise, with which the defendant __________ (name of defendant) is charged in count ____ of the indictment, includes the lesser included offense of conspiracy under § 846 of Title 21, with which the defendant __________ (name of defendant) is charged in count _____ of the indictment. Because the conspiracy offense is a lesser included offense of continuing criminal enterprise, this means that you may convict the defendant __________ (name of defendant) of either conspiracy or continuing criminal enterprise, but not both.

    If, but only if, you unanimously find defendant __________ (name of defendant) not guilty of the crime of conducting a continuing criminal enterprise as charged in count _____ of the indictment, or if you cannot unanimously agree that the defendant __________ (name of defendant) is guilty of that crime, then you should proceed to determine whether defendant __________ (name of defendant) is guilty or not guilty of the lesser offense of conspiracy as charged in count _____ of the indictment.

AUTHORITY:

1 Federal Criminal Jury Instructions of the Seventh Circuit, No. 2.02 [formerly No. 2.03] (1980); United States v. Peters, 791 F.2d 1270, 1288 n.21, and 1288 n.22, 1289 & n.23; United States v. Ambrose, 740 F.2d 505, 510 (7th Cir. 1984), cert. denied, 105 S. Ct. 3479 (1985); United States v. Jefferson, 714 F.2d 689, 705 (7th Cir. 1983).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances..

See also THE SHELLOW COLLECTION: Conspiracy.

RELATED NCJIC MATERIALS:

See NCJIC Chapter 83: Conspiracy.

See NCJIC Chapter 88: Drugs, Controlled Substances.

See NCJIC 120.2.1 [Continuing Criminal Enterprise (CCE): Links To Other Sources].

See NCJIC 120.2.2 [Continuing Criminal Enterprise: Miscellaneous Issues].

See NCJIC 120.2.3 [Continuing Criminal Enterprise: Defenses And Defense Theories].

See NCJIC Federal Model Instructions by Offense: 21 USC 848: Controlled Substances -- Continuing Criminal Enterprise.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(c)(1): Felony Violations Of Federal Narcotic Laws.

See NCJIC Federal Model Instructions by Offense: 21 USC 848(e) Et Seq.: Controlled Substances (Death Penalty - Supplemental Instructions) Preliminary Instruction.