The only gang or gang-related statute which is not discussed in other sections of JM is 18 U.S.C. § 521, the "Criminal Street Gangs" statute, which was enacted as part of the Violent Crime Control and Law Enforcement Act of 1994. The Department views this statute as a penalty enhancer, not a substantive offense. A sample Penalty Enhancement Information pleading is found in this Manual at 1458.
The statute requires, among other things, proof that the defendant participated in a criminal street gang with knowledge its members engage or have engaged in a continuous series of offenses and that the defendant intends to promote or further the gang's felonious activities or maintain or increase his position in the gang. Given these knowledge and intent requirements, § 521 has proven to be a difficult statute to apply successfully to defendants. In fact, the Criminal Division is aware of only one district which has filed a penalty enhancement information pursuant to the statute in the first 20 months of its existence. (Legislation is expected to be proposed in Congress in 1997 to amend the statute.)
Section 521 provides for a penalty enhancement of "up to 10 years." The sentencing guidelines were subsequently amended, effective November 1, 1995. Section 5K2.18 provides, "If the defendant is subject to an enhanced sentence under 18 U.S.C. § 521 (pertaining to criminal street gangs), an upward departure may be warranted."
[cited in JM 9-63.1200]