Most ofthose require that a death sentence be based only on aggravation found unanimously by ajury. See, e.g., 21 U.S.C. §848, subd. (k) (West Supp. 1993) [jury unanimity as to existence of specified aggravating circumstances]; Connecticut General Statutes (1990) §53a-46a, subd.(e) [same]; Maryland Annotated Code (1992) art.27, §413, subd.(j) [same]; Revised Statutes of Missouri (1991) §565.030 [same]; New Hampshire Revised Statutes 747 with the function of the jury in determining the truth vel non of the alleged aggravating facts and the fundamentalrole ofthe jury in a criminaltrial under the Sixth Amendment to the United States Constitution. First, the determination of the factual aggravating circumstances is fundamentally different from the sentencing decision. California v. Ramos, 463 U.S. 992, 1007-1008 (1983); Zant v. Stephens, supra, 462 U.S. at pp. 872, 878-879; Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988), cert. denied, 497 U.S. 1031 (1990).

Co-op. 1992); Tenn. Code Ann., § 39-13-204(g) (1993); Tex. Crim. Proc. Code Ann.§ 37.071 (West 1993). 280 section 848(a), and held that the jury must unanimously agree on whichthree drug oesviolations constituted the “continuing series of violations’” necessary for a continuing criminal enterprise [CCE] conviction. The high court’s reasonsforthis holding are instructive: The statute’s word “violations” covers many different kinds of behavior of varying degrees of seriousness. ... At the same time, the Government in a CCE case may well seek to prove that a defendant, charged as a drug kingpin, has been involved in numerous underlying violations.

To apply the requirement of unanimity to an enhancementfinding that may carry only a maximum punishmentofoneyear in prison, but not to a finding that could have “‘a substantial impact on the jury’s determination whether the defendant should live or die” (People v. Medina, supra, 11 Cal.4th at pp. 763-764), would by its inequity violate the fundamental constitutional requirement of equal protection, andbyits irrationality violate both the due process and cruel and unusual punishmentclauses of the California and United States Constitutions, as well as the Sixth Amendment’s guarantee of trial by jury. In Richardsonv. United States (1999) 526 U.S. 813, 815-816, the United States Supreme Court interpreted 2] U.S.C. section 848(a), and held that the jury must unanimously agree on whichthree drug violations constituted the “continuing series of violations’” necessary for a continuing criminal enterprise [CCE] conviction. The high court’s reasons for this holding are instructive: The statute’s word “violations” covers many different kinds of behavior of varying degrees of seriousness. ... At the same time, the Governmentin a CCE case may well seek to prove that a defendant, charged as a drug kingpin, has been involved in numerous underlying violations.

1992); S.D. Codified Laws Ann. § 23A-27A-5 (1988); Tenn. Code Ann., sec. 39-13- 204(g) (2)(A)(1) (1995); Va. Code Ann.§ 19.2- 264.4(D) (Michie 1990); Wyo. Stat., sec. 6-2-102(d) (ii) (1995). See also 21 U.S.C., sec. 848(k) (West Supp. 1993). 200 has described written findings as "essential" for meaningful appellate review: “In Jn re Podesto (1976) 15 Cal.3d 921, we emphasized that a requirementofarticulated reasons to support a given decision serves a numberofinterests: it is frequently essential to meaningful review;it acts as an inherent guard against careless decisions, insuring that the judge himself analyzes the problem and recognizes the groundsfor his decision; andit aids in preserving public confidence in the decision-making process by helping to persuadethe parties and the public that the decision makingis careful, reasoned and equitable.” (People v. Martin, supra, 42 Cal.3d at 449-450.)

4(D) (Michie 1990); Wyo. Stat., sec. 6-2-102(d) (11) (1995). See also 21 U.S.C., sec. 848 (k) (West Supp. 1993). 153 meaningful review; it acts as an inherent guard against careless decisions, insuring that the judge himself analyzes the problem and recognizes the grounds for his decision; and it aids in preserving public confidence in the decision-making process by helping to persuade the parties and the public that the decision- making is careful, reasoned and equitable. (People v. Martin, supra, 42 Cal.3d at pp. 449-450.)

Case 1:10-cr-00008-JFK Document 71 Filed 05/18/2010 Page 8 of 10 7 The CCE statute specifically applies only to someone who “occupies a position of organizer, a supervisory position, or any other position of management.” 21 U.S.C. § 848(c)(2)(A). It was because of this language that the Second Circuit held that there could be no liability for aiding and abetting the CCE.

Loaning money to support a business cultivating, selling, or Case 3:16-cv-02311-D Document 13 Filed 10/17/16 Page 15 of 30 PageID 133 Defendants’ Motion to Dismiss and Brief in Support Page 9 AUS-6306826-1 530201/1 distributing marijuana exposes individuals to other federal laws that criminalize aspects of the marijuana businesses. See e.g., Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 (2012); and Continuing Criminal Enterprise Statute, 21 U.S.C. § 848 (2012). 28.

“Racial motivation” describes the defendant’s state of mind and odious racial-animus motive for murdering the victims. “Selection of victims” describes the defendant’s decision making and specific choice to target 15 In Tipton, the Court’s review related to an allegation of multiple threshold intent factors under Title 21’s capital sentencing scheme (21 U.S.C. § 848(n)(1)), which differs from the FDPA’s (Title 18) structure, in which threshold intent factors are not deemed to be aggravating factors. See United States v. Jackson, 327 F.3d 273, 300 (4th Cir. 2003) (distinguishing Tipton on this basis).

at 1265. The defendant’s reliance on Amen is, therefore, misplaced, as it simply applies the same principles as in Gebardi and Castle in the context of the Kingpin statute, 21 U.S.C. § 848, a statute that necessarily requires one who leads and one who is led. The Second Circuit Case 3:12-cr-00238-JBA Document 161 Filed 08/29/14 Page 55 of 60 47 concluded that, “[w]hen Congress assigns guilt to only one type of participant in a transaction, it intends to leave the others unpunished for the offense.

When the government intends to seek the death penalty, it is required by statute to file a notice–“a reasonable time before trial”–that states its intent and outlines the aggravating factors it will rely on in requesting the death penalty. 21 USC 848(h). Because the Protocol typically takes four months to complete,2/ if the review began in June and the Attorney General decided to seek death, the notice likely would have been filed four to six weeks before trial.