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State v. Catt

Court of Appeals of New Mexico

November 13, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
ANGELA CATT, Defendant-Appellant. Table 1

          APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Mark T. Sanchaz District Judge.

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

          Law Offices of Jennifer J. Wernersbach, PC Jennifer J. Wernersbach Albuquerque, NM for Appellant

          OPINION

          JENNIFER L. ATTREP, JUDGE.

         {¶1} Defendant Angela Catt was convicted by a jury of racketeering, conspiracy to commit racketeering, and conspiracy to commit drug trafficking. Defendant moved the district court to set aside the racketeering convictions[1] and enter judgments of acquittal on the grounds that the jury had failed to find she committed the requisite two predicate acts and that there was instructional error. Defendant additionally argued that retrial would violate her right to be free from double jeopardy on the ground that sufficient predicate acts were lacking. The district court vacated Defendant's racketeering convictions but permitted retrial. Defendant now appeals this order. We hold that instructional error warranted vacating Defendant's racketeering convictions. Because the State may rely on conspiracy to commit drug trafficking as a predicate offense, however, sufficient predicates exist to permit retrial of the racketeering charges. Defendant additionally appeals her conviction for conspiracy to commit drug trafficking on sufficiency grounds. We hold that substantial evidence supported this conviction. We therefore affirm.

         BACKGROUND

         {¶2} Defendant was alleged to be associated with a methamphetamine trafficking organization known as "the AZ Boys." She was charged by indictment with three counts of methamphetamine trafficking occurring on March 18, 2012, April 8, 2012, and May 1, 2012; three counts of conspiracy to traffic methamphetamine related to the same dates; and one count each of racketeering and conspiracy to commit racketeering. After a four-day trial, a jury convicted Defendant of racketeering (Count 1), conspiracy to commit racketeering (Count 2), and conspiracy to traffic methamphetamine on April 8, 2012 (Count 8). The jury acquitted Defendant of the trafficking and conspiracy to traffic counts pertaining to the date of March 18, 2012 (Counts 5 and 6), as well as the trafficking count pertaining to the date of April 8, 2012 (Count 7). The jury deadlocked on the trafficking and conspiracy to traffic counts related to the alleged conduct of May 1, 2012 (Counts 3 and 4). The district court declared a mistrial as to those counts and permitted retrial. Defendant does not appeal this decision.

         {¶3} Shortly after trial, Defendant moved the district court to set aside her racketeering convictions, and to enter judgments of "not guilty" or dismiss the racketeering counts with prejudice. Defendant argued that the failure of the jury to convict her of two trafficking counts demonstrated that insufficient evidence existed to convict her of racketeering and conspiracy to racketeer. Therefore, Defendant asserted, a retrial of those counts would violate her right not to be tried twice for the same conduct. At the hearing on Defendant's motion, Defendant additionally argued that the jury instruction defining "racketeering" was incorrect because it included all of the possible predicate offenses but failed to provide the elements of those crimes. The State agreed that the jury instructions for the racketeering counts were incorrect. Ultimately, the State did not oppose vacatur of the racketeering convictions but argued that retrial, not acquittal or dismissal, was the appropriate remedy. Both Defendant and the State maintained that the convictions for the racketeering charges and acquittals for the trafficking charges were inconsistent.

         {¶4} The district court vacated the racketeering convictions but ordered a retrial. Although the exact basis for the district court's decision is not clear, the court noted the inconsistencies in the verdicts, that the motion was uncontested in terms of vacating the racketeering convictions, and that the State agreed that there was instructional error. The district court additionally entered a judgment and sentence on Defendant's conviction for conspiracy to commit trafficking methamphetamine on April 8, 2012 (Count 8), sentencing Defendant to a four-year term of incarceration. Defendant appeals the district court's denial of her request for judgments of acquittal or dismissal of the racketeering charges and appeals her conviction for conspiracy to commit drug trafficking for sufficiency of the evidence.

         Additional facts are discussed as needed in our analysis. Table 1 summarizes the present posture of the charges.

Table 1

Count

Charge

Verdict

District Court's Order

1

Racketeering

Guilty

Vacated / retrial ordered

2

Conspiracy to commit racketeering

Guilty

Vacated / retrial ordered

3

Trafficking methamphetamine on May 1, 2012

Deadlocked

Retrial ordered

4

Conspiracy to commit trafficking methamphetamine on May 1, 2012

Deadlocked

Retrial ordered

5

Trafficking methamphetamine on March 18, 2012

Not Guilty

Judgment of acquittal entered

6

Conspiracy to commit trafficking methamphetamine on March 18, 2012

Not Guilty

Judgment of acquittal entered

7

Trafficking methamphetamine on April 8, 2012

Not Guilty

Judgment of acquittal entered

8

Conspiracy to commit trafficking methamphetamine on April 8, 2012

Guilty

Judgment and sentence entered

         THE RACKETEERING CONVICTIONS

         {¶5} We first address whether this Court has jurisdiction to review the denial of Defendant's motion for acquittal or dismissal in the absence of a final order. Concluding we do, we then lay out general principles of double jeopardy and racketeering. We next hold that the district court correctly determined that both racketeering convictions should be set aside for instructional error. The issue then is whether Defendant can, consistent with her right to be free from double jeopardy, be subject to retrial on these charges. We hold that she can. Finally, although the parties request us to opine about the scope of retrial, we decline to do so.

         I. The Court Has Jurisdiction to Review the District Court's Order Denying Defendant's Motion for Acquittal or Dismissal

         {¶6} The State argues that Defendant's appeal should be summarily dismissed "for want of a final order" or, if the appeal is construed as an interlocutory appeal, because it is untimely. The district court's order, however, implicates Defendant's constitutional right to avoid double jeopardy-indeed, Defendant's "right not to be subjected to a second trial for the same offense could not be remedied once the second trial has taken place." State v. Apodaca, 1997-NMCA-051, ¶ 16, 123 N.M. 372, 940 P.2d 478. This Court, therefore, has jurisdiction to immediately review the district court's denial of Defendant's motion for acquittal or dismissal of the racketeering charges. See id. ¶¶ 15-17 (holding that "a defendant has a constitutional right to appeal from an order denying a motion to dismiss a charge on the ground that trial of the charge would subject the defendant to double jeopardy" and that this Court has jurisdiction to hear such an appeal); see also State v. McClaugherty, 2007-NMCA-041, ¶27, 141 N.M. 468, 157 P.3d 33 ("The denial of the motion [to bar reprosecution] below is all that is required by Apodaca to confer jurisdiction on this Court to hear an immediate direct appeal.").

         II. Double Jeopardy

         {¶7} The Constitutions of the United States and New Mexico guarantee that no person shall be "twice put in jeopardy" for the same offense.[2] U.S. Const, amend. V; N.M. Const, art. II, § 15. "The Double Jeopardy Clause operates to protect an individual from repeated attempts by the state, 'with all its resources and power,' to secure a conviction, with the consequent anxiety, embarrassment, and undue expense to a defendant that results from retrial." Ben, 2015-NMCA-118, ¶ 7 (quoting Cty. of Los Alamos v. Tapia, 1990-NMSC-038, ¶ 16, 109 N.M. 736, 790 P.2d 1017). "In common parlance, the state, upon failing to convict a defendant after a full and fair opportunity to do so is barred from a second bite of the apple." Id. (internal quotation marks and citation omitted). Retrial is not barred, however, when a conviction has been set aside for reasons other than insufficiency of the evidence. State v. Lizzol, 2007-NMSC-024, ¶ 14, 141 N.M. 705, 160 P.3d 886 (holding that "when a defendant's conviction is vacated on appeal because of trial error, e.g., ... incorrect instructions, ... as opposed to insufficiency of the evidence, the defendant may be retried" (internal quotation marks and citation omitted)). We "review[] claims involving alleged violations of a defendant's right to be free from double jeopardy de novo." State v. Loza, 2018-NMSC-034, ¶ 4, 426 P.3d 034.

         III. The Racketeering Act

         {¶8} New Mexico's Racketeering Act (the Racketeering Act), NMSA 1978, §§ 30- 42-1 to -6 (1980, as amended through 2015), provides, in relevant part:

C. It is unlawful for a person employed by or associated with an enterprise to conduct or participate, directly or indirectly, in the conduct of the enterprise's affairs by engaging in a pattern of racketeering activity....
D. It is unlawful for a person to conspire to violate the provisions of Subsection[]... C of this section.

Section 30-42-4. The Racketeering Act is based on the Racketeering Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. §§ 1961-1968 (2012), the federal statute criminalizing racketeering. Loza, 2018-NMSC-034, ¶ 12. "[Accordingly we look to federal cases interpreting RICO for guidance in interpreting our [Racketeering] Act." Id.; see also State v. Rael, 1999-NMCA-068, ¶ 11, 127 N.M. 347, 981 P.2d 280 (finding "federal decisions interpreting RICO .. . instructive").

         {¶9} In this case, Defendant was charged under Section 30-42-4(C), requiring, among other things, a "pattern of racketeering." The Racketeering Act defines a "pattern of racketeering" as "engaging in at least two incidents of racketeering with the intent of accomplishing any of the prohibited activities set forth in [the Racketeering Act, ]" provided that the incidents occurred within a certain time frame not at issue here. Section 30-42-3(D). "Racketeering," in turn, is defined as "any act that is chargeable or indictable under the laws of New Mexico and punishable by imprisonment for more than one year, involving any of twenty-five offenses, including trafficking in controlled substances. Section 30-42-3(A). Thus, to establish a "pattern of racketeering," the state must prove "two incidents of racketeering," often referred to as "predicate offenses" or "predicate acts." Section 30-42-3(D); cf State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254 ("To be convicted under Section 30-42-4(A), [the d]efendants must have committed at least two punishable offenses that constitute racketeering." (citing § 30-42-3(D))); State v. Crews, 1989-NMCA-088, ¶47, 110 N.M. 723, 799 P.2d 592 (discussing the elements of racketeering). At issue in this case is whether the jury was instructed correctly on all the elements of the racketeering charges, and whether sufficient predicates exist to permit retrial.

         IV. The District Court Did Not Err in Vacating the Racketeering Convictions for Instructional Error

         {¶10} "When the defendant has been found guilty, the court on motion of the defendant, or on its own motion, may grant a new trial if required in the interest of justice." Rule 5-614(A) NMRA.

When reviewing a [district] court's grant of a new trial, the appellate court must follow a two-step approach. First, this court must determine whether the grant of a new trial is based upon legal error. Second, this court must determine whether the error is substantial enough to warrant the exercise of the [district] court's discretion.

State v. Danek, 1993-NMCA-062, ¶2O, 117 N.M. 471, 872 P.2d 889 (citations omitted), aff'd as modified, 1994-NMSC-071, 118 N.M. 8, 878 P.2d 326. "The [district] court's decision will only be reversed upon a showing of clear and manifest abuse of discretion." Id.

         {¶11} For the reasons set forth below, the district court did not abuse its discretion in vacating the racketeering convictions because the jury instructions for those counts were erroneous.[3] See, e.g., State v. Parish, 1994-NMSC-073, ¶ 4, 118 N.M. 39, 878 P.2d 988 ("Reversible error arises if... a reasonable juror would have been confused or misdirected."); see also State v. Montoya, 2013-NMSC-020, ¶ 14, 306 P.3d 426 ("In applying the fundamental error analysis to deficient jury instructions, we are required to reverse when the misinstruction leaves us with no way of knowing whether the conviction was or was not based on the lack of the essential element." (internal quotation marks and citation omitted)).

         {¶12}Racketeering. As to racketeering, the jury was ...


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