Criminal Episode versus Criminal Enterprise

When is selling drugs not just an individual criminal act but part of a criminal enterprise?  The answer is important for those charged with this crime as it make these cases much more complicated to resolve.  Superior Court of Pennsylvania started off the new year with a bang, handing down the decision in Commonwealth vs. William Reid.   In this case, Mr. Reid was charged with selling drugs to many people on different occasions.  However, while he was being investigated by one police agency, the state police, he was not caught selling drugs to people not involved in the first case.  As a result, he was charged in a second broader case.  He claimed all sales were part of one case and the state just messed up.  The court said no, two prosecutions is ok.  Why???

The case centered on the definition of what is a former prosecution that would bar a subsequent prosecution.  The Pennsylvania Supreme Court addressed this issue in Commonwealth v. Fithian, 599 Pa.180, 961 A.2d 66 (2008).  Fithian states that in order for a former prosecution to bar a subsequent prosecution (rendering the criminal act an episode versus an enterprise) pursuant to Section 110 of the Pa Criminal Code, four elements are required: (1) the former prosecution must have resulted in an acquittal or conviction; (2) the current prosecution is based upon the same criminal conduct or arose from the same criminal episode as the former prosecution; (3) the prosecutor was aware of the instant charges before the commencement of the trial on the former charges; and (4) the current offense occurred at or near the same time.

More importantly, the issue of if the drug sales in one case constitute an episode for multiple prosecutions versus a criminal enterprise for one very large prosecution, the court stated:

These [Section 110] policy concerns must not be interpreted to sanction “volume discounting” or, as evidenced by this case, to label an “enterprise” an “episode.” [The Pennsylvania Supreme] Court has never categorized seven months of individual criminal activity, with distinct layers of illegality, as a single criminal episode; the purpose inherent in § 110 prevents such a result now. Although [Commonwealth v.] McPhail[, 547 Pa. 519, 692 A.2d 139 (1997) (plurality)] designated three months of activity a single episode, that case involved one defendant selling drugs to one undercover officer; the officer was the major mover in the determination of the conduct, its extent, jurisdiction and venue, and potential mandatory penalties. Additionally, in McPhail, the  Commonwealth conced[ed] that all the offenses arose from the same criminal episode.” McPhail, at 141. Here, over a seven-month period, appellee ran a profitable enterprise in which he stole at least 25 vehicles from numerous individuals and 11 dealerships and then resold them, creating even more victims. Much like a television sitcom, each week’s story has similar characters, producers, and continuity of storyline, but each week is a separate episode—the series of episodes is an enterprise.   Nolan, 579 Pa. at 310-11, 855 A.2d at 840.10

The lesson in these cases is make sure you have good counsel that you have properly advised of your criminal conduct so that the prosecution can be made aware of all criminal conduct if there is to be a plea.  If you are the client and you are not candid with your counsel as to the nature and extend of your criminal conduct, you are wasting your money.  This was Mr. Reid.

Pay the attorney to do the legal work; don’t second guess him or her.  Be honest with your counsel and advise them fully of your behavior so they may properly strategize your case and make informed legal decisions.

 

This case tells me that Mr. Reid did not tell his attorney all of the drugs he was selling and to whom and how much.  As such, when the attorney defended the first case, the client got hit with a second, broader case with more drugs and he was charged with the criminal enterprise counts.  Had the attorney known of all the criminal conduct, then maybe the first case would have resulted in a plea with facts that included much of the facts of the second case.  Then, a second prosecution with have been precluded.

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