Continuing Criminal Enterprise—Francisco Javier Arellano-Felix

In August of this year, Francisco Javier Arellano-Felix was apprehended by the United States Coast Guard in International Waters off the coast of Southern California.^[1] Mr. Arellano-Felix “assumed control of the [Arellano-Felix Organization] cartel in March of 2002 following the incapacitation of his older brothers Benjamin (arrested in Mexico in March 2002) and Ramon (killed in Mexico in February 2002).”^[2] After being arrested, he was charged with RICO conspiracy, drug conspiracy, intending unlawful importation, and conspiracy to commit money laundering.^[3]

A new indictment has been issued in his case, alleging, inter alia, a continuing criminal enterprise, a charge which appears to be an attempt by the United States to charge Mr. Arellano-Felix for ordering the murder of Tijuana’s deputy police chief and the beheadings of three police officers.^[4] The United States cannot charge Mr. Arellano-Felix directly for murder in this case, because the United States’ murder statute, 18 U.S.C. § 1111, applies only to the “special maritime and territorial jurisdiction of the United States.” The same jurisdictional statement is found in the manslaughter statute, 18 U.S.C. § 1112. It is possible, under 18 U.S.C. § 1119, for an individual to be charged with a murder which is committed outside the United States, but the both the victim and the defendant must be nationals of the United States.

By charging Mr. Arellano-Felix under the Continuing Criminal Enterprise statute (21 U.S.C. § 848), the United States can seek the death penalty. To do so, it must prove beyond a reasonable doubt that he engaged in a continuing criminal enterprise, and that he intentionally killed—or counseled, commanded, procured, or caused the intentional killing of—an individual.^[5] A person engages in a continuing criminal enterprise if he violates any crime in Chapter 13 of Title 21, and that violation is a part of a continuing series of such violations which are undertaken by that person in concert with five or more persons who are under his control and he obtains substantial income or resources as a result of the violation. However, if the United States seeks to impose the death penalty, a hearing must be held after it notifies the defendant and the court.^[6]

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[1] US Attorneys Office, AFO Leader Francisco Javier Arellano-Felix Apprehended Off the Coast of Southern California, Aug. 17, 2006.
[2] Id.
[3] Id.
[4] Indictment: Kingpin Ordered Cops Beheaded, AP (via CNN.com), Dec. 20, 2006.
[5] 21 U.S.C. § 848(e)(1)(A).
[6] Id. § 848(g), (h).