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State v. Loza

Supreme Court of New Mexico

August 23, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
MATIAS LOZA, Defendant-Appellant.

          INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Angie K. Schneider, District Judge.

          L. Helen Bennett, P.C. Linda Helen Bennett Albuquerque, NM for Appellant

          Hector H. Balderas, Attorney General Charles J. Gutierrez, Assistant Attorney General Santa Fe, NM for Appellee

          OPINION

          BARBARA J. VIGIL, JUSTICE

         {¶1} In this case, we consider whether a defendant's racketeering convictions foreclose a subsequent prosecution for the crimes alleged as the predicate offenses in the earlier racketeering case. Matias Loza (Defendant) was previously convicted of racketeering, contrary to NMSA 1978, Section 30-42-4 (C) (2002, amended 2015), and conspiracy to commit racketeering, contrary to Section 30-42-4(D), for conduct that he engaged in as part of a criminal enterprise referred to as the AZ Boys. State v. Loza, 2016-NMCA-088, ¶¶ 1-2, 382 P.3d 963. In support of the racketeering charges, the State alleged the underlying predicate offenses of murder, arson, and bribery of a public officer. See NMSA 1978, § 30-42-3(A)(1), (A)(9), (A)(14), (D) (2009) (defining "'pattern of racketeering activity'" as "engaging in at least two incidents of racketeering," which may include murder, arson, or bribery, among other offenses). The State now seeks to prosecute Defendant for the crimes alleged as the predicate offenses in the earlier prosecution-murder, arson, and bribery-as well as other related charges. Defendant contends that the constitutional proscription against double jeopardy as set forth in the Fifth Amendment to the United States Constitution and Article II, Section 15 of the New Mexico Constitution forecloses this subsequent prosecution. We conclude otherwise and therefore affirm the district court's denial of Defendant's motion to dismiss.

         I. BACKGROUND

         {¶2} On November 1, 2011, officers discovered Defendant smelling strongly of gasoline and cowering under a fifth-wheel trailer. One hundred yards away, a Suzuki automobile containing the human remains of Richard Valdez was fully engulfed in flames. Shoe prints in the area were consistent with the shoes Defendant was wearing. After claiming that he had been brought to the area by a truck, which he had just escaped after being shot at by its occupants, Defendant offered one of the officers $40, 000 to let him go free. Following a more extensive investigation into Defendant's background and his reasons for being so near the murder scene, detectives ascertained that Defendant was connected with the AZ Boys gang, and gathered further intelligence from anonymous sources that Defendant had in fact served as a hitman and had killed Valdez in connection with the gang's drug trafficking activity.

         {¶3} The State filed a series of indictments and nolle prosequis ultimately resulting in two separate cases against Defendant. In Case No. D-1215-CR-2012-00320 (racketeering case), Defendant was charged with and convicted of racketeering and conspiracy to commit racketeering for conduct spanning from November 1, 2007, to May 15, 2012, based on at least two of the three predicate offenses of first-degree murder, arson, and bribery of a public officer. See generally NMSA 1978, §§ 30-42-1 to -6 (1980, as amended through 2015) (Racketeering Act). In Case No. D-1215-CR-2014-00063 (murder case), Defendant was charged with the same crimes that served as the predicate offenses in the racketeering case-first-degree murder, arson, and bribery of a public officer-as well as conspiracy to commit first-degree murder and two counts of tampering with evidence. In this interlocutory appeal, arising from the murder case, Defendant argues that his convictions in the racketeering case foreclose the possibility of convictions in this case because the subsequent prosecution violates his right to be free from double jeopardy.

         II. STANDARD OF REVIEW

         {¶4} This Court reviews claims involving alleged violations of a defendant's right to be free from double jeopardy de novo. State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747 ("A double jeopardy challenge is a constitutional question of law which we review de novo.").

         III. DISCUSSION

         A. Federal Double Jeopardy Authority in Racketeering Cases

         {¶5} Both the United States Constitution and the New Mexico Constitution protect against double jeopardy for the same offense. U.S. Const. amend. V ("No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb."); N. M Const art II, § 15 ("[N]or shall any person be twice put in jeopardy for the same offense") The right to be free from double jeopardy protects a criminal defendant from being retried for the same offense after either acquittal or conviction (successive prosecutions) and from being punished twice for the same offense (multiple punishments) State v Lynch, 2003-NMSC-020, ¶ 9, 134 NM 139, 74 P.3d 73 In a case like this, "[w]here successive prosecutions are at stake, the guarantee serves a constitutional policy of finality for the defendant's benefit That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, and from attempts to secure additional punishment after a prior conviction and sentence" State v Rodriguez, 2005-NMSC-019, ¶ 6, 138 NM 21, 116 P.3d 92 (quoting Brown v Ohio, 432 U.S. 161, 165-66 (1977)) However, "the finality guaranteed by the Double Jeopardy Clause is not absolute, but instead must accommodate the societal interest in prosecuting and convicting those who violate the law" Garrett v United States, 471 U.S. 773, 796 (1985) (O'Connor, J, concurring).

         {¶6} In addition to other elements, a successful racketeering prosecution requires proof beyond a reasonable doubt of at least two predicate offenses, which are often prosecuted in a proceeding separate from the substantive racketeering offense. 1 David R. McCormack, RICO: Racketeer Influenced Corrupt Organizations, at 6.15 (1988). As a result, double jeopardy challenges are common in racketeering cases. Seemingly without exception, however, courts have been unreceptive to these challenges. See id. at 6.16 (collecting cases). "Federal courts have uniformly held that a defendant may be convicted separately and sentenced cumulatively for engaging in [racketeering] and for committing ...


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