The phrase continuing criminal enterprise is defined as one who violates any provision of this subchapter or subchapter II, if the violation is a part of a continuing series of violations of the previous subchapters, and which are undertaken in concert with five or more persons in which the said person is in the position of organizer, supervisor, or any other position of management, and from which the person obtains substantial income or resources.

            The use of violence in support of the enterprise is a focal concern. The authors of the statute in (e) Death penalty specify the conformity of killing to the code at hand.

          (A)

any person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A) of this title or section 960(b)(1) of this title who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death; and

(B)

any person, during the commission of, in furtherance of, or while attempting to avoid apprehension, prosecution or service of a prison sentence for, a felony violation of this subchapter or subchapter II of this chapter who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of any Federal, State, or local law enforcement officer engaged in, or on account of, the performance of such officer's official duties and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death.

            Law enforcement officer for the purposes of the code is defined by a public servant authorized by law or by a Government agency or Congress engaged in the prevention, investigation, prosecution of an offense. The correction, probation, or parole officer is inclusive. A capital penalty may only be sought for any offense under this section in accordance with the particulars of this section.

The Government (h) must serve notice to the defendant if the death penalty is being sought. The prosecutor must serve notice a reasonable time before the trial or acceptance of the court of a guilty plea. The notice (A), (B), will state that upon conviction the Government is seeking the death penalty and the aggravating circumstances enumerated in (n). The court may permit the Government to amend the notice (2). Subsection (i) prescribes the judge and jury upon whom the hearing should be heard due to the dispensation of the facts. The guilt may be obtained with a varying degree of procedure; the object is to retain the jury if there was such in deciding guilt. The jury impaneled shall number no less than twelve unless agreed to by both parties.

In case of guilt resulting from subsection (e) the death penalty, information regarding aggravating or mitigating circumstances may be presented. There will be no presentence report and the parties will be able to present and rebut witnesses and evidence (j). The burden of proof in supporting the aggravating circumstances rests on the Government (appendix). The burden of establishing the mitigating factor is on the defendant by preponderance of the evidence.

(j)

Any other information relevant to such mitigating or aggravating factors may be presented by either the Government or the defendant, regardless of its admissibility under the rules governing admission of evidence at criminal trials, except that information may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

A return of finding of an aggravating factor must be unanimous by the jury or court if there is none. A finding of a mitigating factor may be made by one or more members of the jury (k). The jury or the court may then decide if the aggravating factors outweigh the mitigating factors.

If an aggravating factor set forth in subsection (n) (1) of this section and one or more of the other aggravating factors set forth in subsection (n) of this section are found to exist, the jury, or if there is no jury, the court, shall then consider whether the aggravating factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of mitigating factors, whether the aggravating factors are themselves sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote, or if there is no jury, the court, shall recommend that a sentence of death shall be imposed rather than a sentence of life imprisonment without possibility of release or some other lesser sentence.