State v. Catt , 2019 NMCA 13 ( 2018 )

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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 14:18:15 2019.03.13
Certiorari Denied, February 25, 2019, No. S-1-SC-37421
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2019-NMCA-013Filing Date: November 13, 2018
Docket No. A-1-CA-34839
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ANGELA CATT,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Mark T. Sánchez, 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
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 convictions1 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
1
For ease of reference, the Court refers to racketeering and conspiracy to commit
racketeering collectively as “the racketeering convictions,” “the racketeering charges,” or
“the racketeering counts” when no distinction is necessary.
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, Deadlocked Retrial
2012 ordered
4 Conspiracy to commit trafficking Deadlocked Retrial
methamphetamine on May 1, 2012 ordered
5 Trafficking methamphetamine on March Not Guilty Judgment of
18, 2012 acquittal
entered
6 Conspiracy to commit trafficking Not Guilty Judgment of
methamphetamine on March 18, 2012 acquittal
entered
7 Trafficking methamphetamine on April 8, Not Guilty Judgment of
2012 acquittal
entered
8 Conspiracy to commit trafficking Guilty Judgment
methamphetamine on April 8, 2012 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
2
Neither party argues that there is any difference in the application of the state
and federal constitutional provisions to this case. We, therefore, do not distinguish
between them in our analysis. See State v. Ben, 2015-NMCA-118, ¶ 7, 362 P.3d 180.
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. “[A]ccordingly 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, ¶ 20, 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 instructed as follows:
For you to find [D]efendant guilty of racketeering (conduct or participate)
as charged in Count 1, the [S]tate must prove to your satisfaction beyond a
reasonable doubt each of the following elements of the crime:
1. There is an existence of an enterprise.
2. [D]efendant was associated with the enterprise.
3
In vacating the racketeering convictions, the district court seems to have relied
on inconsistent or irreconcilable verdicts as one basis for its decision. On appeal,
Defendant does not rely on this as a basis for setting aside the racketeering convictions,
or for acquittal or dismissal of the racketeering counts. Neither do we. See State v. Leyba,
1969-NMCA-030, ¶ 37, 80 N.M. 190, 453 P.2d 211 (holding that an acquittal that is
“irreconcilable” with a conviction “does not require the conviction to be set aside as a
matter of law”); see also United States v. Powell, 469 U.S. 57, 64 (1984) (“[W]here truly
inconsistent verdicts have been reached, the most that can be said is that the verdict
shows that either in the acquittal or the conviction the jury did not speak their real
conclusions[.]” (alteration, omission, internal quotation marks, and citation omitted));
State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 P.3d 828 (“[W]e will
affirm the [district] court’s decision if it was right for any reason so long as it is not unfair
to the appellant for us to do so.”).
3. [D]efendant participated in the conduct of the affairs of the enterprise
through a pattern of racketeering activity through the commission of two
or more crimes.
4. [D]efendant engaged in at least two incidents of racketeering with the
intent to commit a prohibited activity. . . .
5. [D]efendant was not acting under duress.
6. This happened in New Mexico on or between the 1st day of November,
2007 and the 15th day of May, 2012.
A subsequent instruction set out the Racketeering Act’s definition of “racketeering,” i.e.,
“any act that is chargeable or indictable under the laws of New Mexico . . . involving any
of” the following offenses: (1) murder, (2) robbery, (3) kidnapping, (4) forgery, (5)
larceny, (6) fraud, (7) embezzlement, (8) receiving stolen property, (9) bribery, (10)
gambling, (11) illegal kickbacks, (12) extortion, (13) trafficking in controlled substances,
(14) arson and aggravated arson, (15) promoting prostitution, (16) criminal solicitation,
(17) fraudulent securities practices, (18) loan sharking, (19) distribution of controlled
substances or controlled substance analogues, (20) a violation of the provisions of
Section 4 of the Money Laundering Act, (21) unlawful taking of a vehicle or motor
vehicle, (22) embezzlement of a vehicle or motor vehicle, (23) fraudulently obtaining a
vehicle or motor vehicle, (24) receiving or transferring stolen vehicles or motor vehicles,
and (25) altering or changing the serial number, engine number, decal or other numbers
or marks of a vehicle or motor vehicle. See § 30-42-3(A).
{13} The parties agree that this instruction was flawed because it failed to define the
elements of each predicate offense that must be proved at trial, and that the error
warranted vacating Defendant’s conviction for racketeering (Count 1). We agree. New
Mexico law is clear that “[t]he court must instruct the jury upon all questions of law
essential for a conviction of any crime submitted to the jury.” Rule 5-608 NMRA; see
Clifford, 1994-NMSC-048, ¶ 12 (holding that a failure to instruct on an essential element
may rise to fundamental error). As already provided, to convict a defendant of
racketeering under Section 30-42-4(C), the jury must find that the defendant committed
at least two predicate acts. See Clifford, 1994-NMSC-048, ¶ 19. To do so, it is necessary
that the jury is instructed on the essential elements of the alleged predicate acts upon
which racketeering is based. See State v. Sloan, No. S-1-SC-34858, dec. ¶ 6 (N.M. Sup.
Ct. June 23, 2016) (nonprecedential) (holding “that the failure to instruct the jury on the
essential elements of the predicate felony . . . amounts to fundamental error requiring the
reversal of [the d]efendant’s felony murder conviction and remand for a new trial on that
charge”); see also UJI 14-2810 NMRA (requiring the jury to be instructed on the
essential elements of the felony alleged to be the purpose of a conspiracy); cf. United
States v. Carrillo, 229 F.3d 177, 184 (2d Cir. 2000) (“[C]onfusion and unfairness can
arise from failure to charge the elements of the state law crimes constituting racketeering
acts.”).
{14} Here, although the jury was given an instruction that listed twenty-five different
predicate offenses, the jury was instructed on the essential elements of only two possible
predicate offenses—trafficking in controlled substances and conspiracy to traffic in
controlled substances.4 Because the instructions permitted the jury to convict Defendant
for racketeering based on predicate offenses for which the jury had no elements, the
instructions were erroneous. As such, Defendant’s conviction for racketeering (Count 1)
was properly vacated. See Montoya, 2013-NMSC-020, ¶ 14; Parish, 1994-NMSC-073,
¶ 4; see also United States v. Latorre-Cacho, 874 F.3d 299, 313 (1st Cir. 2017) (vacating
a racketeering conviction where the jury was improperly instructed on the predicate
offenses); State v. Adkins, 737 N.E.2d 1021, 1033-34 (Ohio Ct. App. 2000) (holding that
“this is a case where the predicate offenses as submitted to the jury were legally flawed
and thus, inadequate to support the conviction in this case under [Ohio’s racketeering
statute] as a matter of law”).
{15} Conspiracy to Commit Racketeering. On appeal, the State argues that
Defendant’s conviction for conspiracy to commit racketeering should be reinstated
because the district court incorrectly determined that the jury instruction was erroneous.
We decline to do so. First, the State agreed to vacatur of Defendant’s conspiracy to
racketeer conviction partially on the ground that the instruction—which the State
specifically requested—was erroneous. Generally, this Court “will not allow
the State to invite error and then to complain of it.” State v. Dominguez, 2008-NMCA-
029, ¶ 13, 143 N.M. 549, 178 P.3d 834. Second, in addition to the error identified with
the substantive racketeering instruction, we conclude that the conspiracy to racketeer
instruction is flawed on other grounds.
{16} As to the conspiracy to commit racketeering instruction, the jury was instructed as
follows:
For you to find [D]efendant guilty of conspiracy to commit racketeering
(conduct or participate) as charged in Count 2, the [S]tate must prove to
your satisfaction beyond a reasonable doubt each of the following
elements of the crime:
1. [D]efendant and another person by words or acts agreed together to
commit racketeering;
2. [D]efendant and the other person intended to commit racketeering;
3. [D]efendant was not acting under duress[;]
4. This happened in New Mexico on or between the 1st day of November,
2007 and the 15th day of May, 2012.
This instruction tracks the uniform jury instruction for conspiracy, inserting
“racketeering” as the named felony that was the subject of the conspiracy. See UJI 14-
2810. Although the intention of the conspiracy to commit racketeering instruction may
have been to incorporate all the elements from the racketeering instruction pertaining to
Count 1, it did not accomplish this.
4
Defendant disputes whether conspiracy to commit drug trafficking may be a
valid predicate offense. We address this argument in depth in Section V below.
{17} Instead, the jury instruction refers to “racketeering” alone. Although
“racketeering” is a separate criminal offense (as charged in Count 1), it also is a defined
term meaning any act involving any of twenty-five predicate offenses. It is not clear from
the instruction in Count 2 whether “racketeering” refers to the separate criminal offense
or to the defined term. If it is the latter, the instruction for Count 2 (conspiracy to commit
racketeering) requires only that Defendant and another agreed to and intended to commit
any one of the twenty-five predicate acts. This leads to the possibility that, for example, if
the jury determined that Defendant committed one count of conspiracy to commit drug
trafficking, the jury also could have convicted Defendant for conspiracy to commit
racketeering on this basis alone. This is impermissible. The instruction omitted, among
other things, any elements pertaining to an enterprise or a pattern of racketeering. Cf.
State v. Hughes, 1988-NMCA-108, ¶ 39, 108 N.M. 143, 767 P.2d 382 (comparing
requirements for trafficking conspiracy and racketeering conspiracy). And indeed the
State acknowledges that the instruction for conspiracy to commit racketeering must
contain such elements. Because the conspiracy to commit racketeering instruction
permitted the jury to convict Defendant on the mere agreement to commit a single
predicate act, Defendant’s conviction for the same cannot stand. See Montoya, 2013-
NMSC-020, ¶ 14; Parish, 1994-NMSC-073, ¶ 4.
{18} Defendant argues on appeal that to maintain a conviction for conspiracy to
racketeer, the State must prove she committed two predicate acts, making no distinction
between racketeering and conspiracy to racketeer. The State disagrees and, quoting
United States v. Nguyen, argues instead that it need only prove that Defendant “either
agree[d] to commit two predicate [racketeering] acts or agree[d] to participate in the
conduct of the enterprise with the knowledge and intent that other members of the
conspiracy would commit at least two predicate acts in furtherance of the enterprise.” 255
F.3d 1335, 1341 (11th Cir. 2001). Because of the likelihood that Defendant on retrial will
raise the same argument about the conspiracy to racketeer instruction she raises on appeal
and because this issue is well-developed, we address this purely legal argument here.
{19} To the extent Defendant relies on Hughes, 1988-NMCA-108, for the proposition
that the State must prove that she committed two predicate acts in order to convict her of
conspiracy to racketeer, we conclude that Hughes does not so hold. The issue before the
Court in Hughes was whether convictions for conspiracy to racketeer and conspiracy to
traffic merged such that multiple sentences were barred. 1988-NMCA-108, ¶ 37. The
statement on which Defendant relies—“[c]onspiracy to traffic by manufacturing can be
proved by demonstrating one instance of manufacturing, while conspiracy to racketeer
requires a showing of an enterprise and at least two predicate offenses”—was made in the
context of comparing the elements of those two crimes. Id. ¶ 39. This Court, however,
did not address whether a defendant must commit the predicate acts to be convicted of
conspiracy to racketeer. See id. Hence, Defendant’s reliance on Hughes is unavailing and
does not establish the level of proof required for conspiracy to racketeer. See Sangre de
Cristo Dev. Corp. v. City of Santa Fe, 1972-NMSC-076, ¶ 23, 84 N.M. 343, 503 P.2d
323 (“The general rule is that cases are not authority for propositions not considered.”).
{20} We accordingly look to federal case law on point. See Loza, 2018-NMSC-034,
¶ 12; Rael, 1999-NMCA-068, ¶ 11. Both our Racketeering Act and RICO, the federal
racketeering act, have substantially identical statutory requirements for conspiracy to
commit racketeering. Compare § 30-42-4(D) (“It is unlawful for a person to conspire to
violate the provisions of Subsections A through C of this section.”), with 18 U.S.C. §
1962(d) (“It shall be unlawful for any person to conspire to violate any of the provisions
of subsection (a), (b), or (c) of this section.”). The United States Supreme Court in
Salinas v. United States, 522 U.S. 52 (1997), soundly rejected the idea that a defendant
must have committed or agreed to commit two predicate acts to support a racketeering
conspiracy conviction. Id. 64-66. Instead, Salinas held that a conviction for conspiracy to
commit racketeering was supported where, even though the defendant “did not [commit
or agree to commit the acts of racketeering], there was ample evidence . . . that [another
member of the conspiracy] committed at least two acts of racketeering activity . . . and
that [the defendant] knew about and agreed to facilitate the scheme.” Id. at 66.
{21} In rejecting the defendant’s argument that he could only be convicted of
conspiracy to commit racketeering if he committed the predicate acts, the Supreme Court
relied on general principles of conspiracy that “[t]he partners in the criminal plan must
agree to pursue the same criminal objective and may divide up the work, yet each is
responsible for the acts of each other.” Id. at 63-64. We share these same principles in our
conspiracy jurisprudence. See State v. Armijo, 1995-NMCA-115, ¶ 5, 120 N.M. 702, 905
P.2d 740 (“As a general rule, one who participates in a criminal venture is treated by the
law as if he or she had committed all of the criminal acts of the other participants. . . . A
conspirator is ordinarily responsible for the criminal acts of coconspirators in furtherance
of the conspiracy.”); cf. State v. Gallegos, 2011-NMSC-027, ¶ 45, 149 N.M. 704, 254
P.3d 655 (noting that “a conspiracy is complete when the agreement is reached” and
“New Mexico does not require proof of an overt act” (alteration, internal quotation
marks, and citations omitted)). We presume, as did the Supreme Court in Salinas, that our
Legislature “intended to use the term [conspire] in its conventional sense,” and that,
contrary to Defendant’s assertion, our Legislature did not intend to require the State to
prove that a defendant committed or agreed to commit the predicate acts herself to sustain
a conviction for conspiracy to commit racketeering. 522 U.S. at 64; see also Citation
Bingo, Ltd. v. Otten, 1996-NMSC-003, ¶ 21, 121 N.M. 205, 910 P.2d 281 (“[W]e
presume that the legislature was aware of existing statutory and common law and did not
intend to enact a law inconsistent with existing law.”).
{22} We find Salinas persuasive and adopt its holding here. We, however, do not
endeavor to set out the essential elements required for a jury instruction on conspiracy to
commit racketeering. The potential nuances of such an instruction are simply not before
us in this appeal.5
5
In addition to the new uniform jury instructions on conspiracy effective at the
end of this year (UJIs 14-2810, 14-2810A, 14-2810B, and 14-6019B NMRA,
http://www.nmcompcomm.us/nmrules/NMRuleSets.aspx), the substantial federal
authority pertaining to the essential elements of conspiracy to commit racketeering may
provide guidance to the district court and parties when crafting a jury instruction to fit the
V. The District Court Did Not Err in Ordering Retrial on the Racketeering
Counts
{23} Having determined that the instructions for both racketeering and conspiracy to
commit racketeering were erroneous, and that the district court did not abuse its
discretion in vacating Defendant’s racketeering convictions, we next examine whether
retrial is appropriate. Generally, when a conviction is vacated for trial error, including
incorrect instructions, the defendant may be retried. Lizzol, 2007-NMSC-024, ¶ 14;
Clifford, 1994-NMSC-048, ¶ 12 (reversing a conviction where the jury instructions
omitted an essential element and remanding for a new trial on that count). If a conviction
is vacated on insufficiency of evidence grounds, however, double jeopardy principles will
bar retrial. Lizzol, 2007-NMSC-024, ¶¶ 13, 14.
{24} Defendant maintains that only the trafficking counts, not the conspiracy to
commit trafficking counts, can serve as predicate offenses. Because she was acquitted of
two of the three trafficking charges, Defendant thereby maintains that only one possible
predicate offense remains for retrial—and, thus, the State can never prove that she
committed two predicate acts without her being retried for conduct on which she was
acquitted. Viewed this way, Defendant asserts that the evidence is insufficient to support
her racketeering convictions and the district court erred by denying her motion for
acquittal or dismissal.6
evidence on retrial. For reference, we provide citation to pattern jury instructions adopted
by several federal circuit courts. See, e.g., 2B Fed. Jury Prac. & Instr. § 56:11 (6th ed.)
(setting out pattern jury instructions on conspiracy to commit racketeering through a
pattern of racketeering, and including model criminal jury instruction from the United
States Court of Appeals for the Eighth Circuit); Mod. Crim. Jury Instr. 3rd Cir.
6.18.1962D (2018) (Third Circuit pattern instruction); Fed. Crim. Jury Instr. 7th Cir.
1962(d)[1] (2012 ed.) (Seventh Circuit pattern instruction); Pattern Crim. Jury Instr. 11th
Cir. OI O75.2 (2016) (Eleventh Circuit pattern instruction). It should be noted that the
federal circuits diverge, and in some cases conflict, on various elements required for
conspiracy to commit racketeering. Our citation to these instructions in no way endorses
the approach taken by any one of these circuits.
6
As discussed above, the State need not prove that Defendant committed two
predicate acts to be convicted of conspiracy to racketeer. Given this holding, we need
only examine Defendant’s arguments that insufficient predicate acts exist to permit retrial
in the context of the racketeering charge, not the conspiracy to commit racketeering
charge. Defendant has advanced no argument specific to the sufficiency of the evidence
for the conspiracy to racketeer charge and we, therefore, do not address it. See Elane
Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“We will
not . . . guess at what a party’s arguments might be.” (alteration, internal quotation marks,
and citation omitted)). There being instructional error on the conspiracy to commit
racketeering charge and no corresponding insufficiency of evidence, retrial of Count 2 is
not barred by double jeopardy. See Lizzol, 2007-NMSC-024, ¶¶ 13, 14.
{25} The fundamental premise underlying Defendant’s argument is that the conspiracy
to commit trafficking charges cannot serve as predicate acts. The State argues otherwise,
although it admits that at trial it “operated from the false premise that a conspiracy to
commit one of the [twenty-five] enumerated offenses . . . cannot serve as a predicate
racketeering act.” Without citation to any authority, Defendant argues that the errors of
the first trial do not permit the State to rely on conspiracy to commit trafficking as a
predicate for racketeering. We need not consider this unsupported argument. See In re
Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.3d 1329. Regardless, our
Supreme Court has recognized that a retrial is a new trial, and, for example, the district
court on retrial is under no obligation to give the same jury instructions that were given at
the first trial. See State v. Torrez, 2013-NMSC-034, ¶¶ 33-34, 305 P.3d 944 (rejecting
argument that same instruction must be given on retrial because state failed to object to it
at first trial); cf. Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 41, 125 N.M. 721,
965 P.2d 305 (“The application of the law-of-the-case doctrine, however, is discretionary
and flexible; it will not be used to uphold a clearly incorrect decision.”); State v. Jimenez,
2007-NMCA-005, ¶ 22, 141 N.M. 106, 151 P.3d 67 (“[T]he [s]tate has already gotten a
conviction, and so allowing the [s]tate to retry the case would not mean giving the [s]tate
an opportunity to correct its past mistakes that led to an acquittal, which is one outcome
that double jeopardy is designed to prevent.”).
{26} Defendant further submits that “the district court did not allow the State to base
their racketeering allegations on other conspiracies.” Defendant, however, provides no
citation to the record showing that the district court made such a ruling or operated under
such a premise, and we will not comb the record to find such support. See Muse v. Muse,
2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the record for
facts, arguments, and rulings in order to support generalized arguments.”). Moreover, the
district court’s order denying Defendant’s motion for acquittal or dismissal demonstrates
that the district court appears to have determined that conspiracy to commit drug
trafficking could be a predicate act. Even if the district court did not so determine, we
may affirm the district court’s decision on this basis. See Gallegos, 2007-NMSC-007,
¶ 26 (“[W]e will affirm the [district] court’s decision if it was right for any reason so long
as it is not unfair to the appellant for us to do so.”).
{27} Our appellate courts have not examined whether conspiracy to commit a
racketeering act can serve a predicate offense under our Racketeering Act, so we again
turn to federal case law. See Loza, 2018-NMSC-034, ¶ 12; Rael, 1999-NMCA-068, ¶ 11.
Federal courts construing language in the RICO statute providing that “racketeering” is
“any act . . . involving” certain listed offenses consistently have held that “[t]his language
is certainly broad enough on its face to include conspiracies involving [those listed
crimes].” United States v. Weisman, 624 F.2d 1118, 1123-24 (2d Cir. 1980) (holding that
conspiracies to commit securities and bankruptcy fraud and drug related offenses can
serve as predicates to a RICO charge), abrogated in part on other grounds as recognized
in Ianniello v. United States, 10 F.3d 59 (2d Cir. 1993); see also, e.g., United States v.
Darden, 70 F.3d 1507, 1524-25 (8th Cir. 1995) (narcotics conspiracy constitutes a RICO
predicate); United States v. Licavoli, 725 F.2d 1040, 1045 (6th Cir. 1984) (conspiracy to
commit murder constitutes a RICO predicate); United States v. Phillips, 664 F.2d 971,
1015 (5th Cir. 1981) (“Conspiracy may properly be alleged as a predicate act of
racketeering under RICO[.]”).
{28} The Racketeering Act’s definition of “racketeering” employs the same broad
language as the RICO statute. Section 30-42-3(A) provides that “‘racketeering’ means
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 the following cited offenses[,]”
including “trafficking in controlled substances.” (Emphasis added.) Just as the federal
RICO statute, the plain language of our Racketeering Act is broad and expansive enough
to include conspiracies as acts of racketeering. See Weisman, 624 F.2d at 1124 (holding
that substantially identical language is “certainly broad enough on its face to include
conspiracies”). Thus, consistent with the construction of RICO by federal courts, we
conclude that conspiracy to commit trafficking in controlled substances may serve as a
predicate offense for racketeering.
{29} In this case, the jury acquitted Defendant of three of the possible predicate
offenses (two trafficking and one conspiracy to traffic), convicted her on one (conspiracy
to traffic), and deadlocked on the remaining two (one trafficking and one conspiracy to
traffic). The fact that the jury deadlocked on two of the possible predicates results in a
mistrial, not an acquittal, of the racketeering charges. See United States v. Gotti, 451 F.3d
133, 137 (2d Cir. 2006) (“Assuming the other elements of the RICO charge were proved
to the jury’s satisfaction, lack of unanimity as to two predicate acts results in a hung jury
and a mistrial, not a judgment of acquittal.”); cf. United States v. Vastola, 899 F.2d 211,
222 (3d Cir. 1990) (reversing the district court’s grant of acquittal to the defendant where
the jury “found [the defendant] guilty of only one of the four predicate racketeering acts”
and either deadlocked or acquitted on the remaining three predicate acts, but then
convicted him for racketeering), vacated on other grounds by Vastola v. United States,
497 U.S. 1001 (1990). The district court, therefore, correctly denied Defendant’s motion
for acquittal or dismissal and ordered retrial of the racketeering charges.
VI. The Court Will Not Address Arguments Pertaining To the Scope of Retrial
{30} The remaining arguments pertaining to the racketeering charges advanced by the
parties relate to the scope of the retrial and not whether retrial should happen at all. These
issues, however, are outside our review of the district court’s order and should be
addressed by the district court in the first instance. See Apodaca, 1997-NMCA-051, ¶ 16
(limiting the constitutional right to appeal a non-final order when “interests [are] of the
greatest importance,” such as “a defendant’s right not to be subjected to a second trial for
the same offense[, a violation of which] could not be remedied once the second trial has
taken place”); see also United States v. Wittig, 575 F.3d 1085, 1096 (10th Cir. 2009)
(declining to address the defendant’s collateral estoppel arguments and stating that the
court’s “jurisdiction [under the collateral order doctrine] extends only to vindicate the
right not to be tried at all, not the right to be tried in a particular way”).
{31} For instance, the parties dispute whether the State on retrial can rely on uncharged
conduct as proof of predicate offenses for the racketeering charges. Defendant invokes
the compulsory joinder rule, Rule 5-203(A) NMRA, and the law-of-the-case doctrine in
support of her argument that the State cannot rely on any uncharged predicates. The
State, in turn, requests carte blanche permission to rely on any and all uncharged
predicates, without even naming the offenses it intends to rely on at retrial. But the
parties did not present these arguments to the district court and the district court did not
decide this issue below. See Graham v. Cocherell, 1987-NMCA-013, ¶ 16, 105 N.M.
401, 733 P.2d 370 (“As an appellate court, we are . . . limited to a review of the questions
that have been presented to and ruled on by the [district] court”). Moreover, the parties
argue in the abstract before us. Without knowing, among other things, what predicate acts
the State may attempt to rely on and whether Defendant had adequate notice of such
predicates, our resolution of these matters require us to predict what might happen on
retrial and to issue an advisory opinion based on that speculation. See State v. Zamora,
2005-NMCA-039, ¶ 28, 137 N.M. 301, 110 P.3d 517 (stating that “[t]he remaining issues
raised by [the d]efendant may or may not arise on the retrial” and declining to consider
them because “[a]ppellate courts do not give advisory opinions.” (internal quotation
marks and citation omitted)). This we will not do.
{32} For the foregoing reasons, we decline to address the parties’ remaining arguments
pertaining to the scope of retrial.
THE CONSPIRACY TO COMMIT DRUG TRAFFICKING CONVICTION
{33} Defendant additionally appeals from her judgment and sentence on conspiracy to
commit trafficking methamphetamine (Count 8) for sufficiency of the evidence. We first
address whether this Court has jurisdiction to review Defendant’s conviction on Count 8.
Concluding we do, we determine that Defendant’s conviction is supported by substantial
evidence.
I. This Court Has Jurisdiction to Review Defendant’s Conviction for
Conspiracy to Commit Trafficking
{34} The State contends that Defendant’s appeal from her judgment and sentence
should be dismissed “for want of a final order.” The State argues that even though the
district court entered a judgment and sentence on Count 8, the judgment did not dispose
of all issues of law and fact to the fullest extent possible and, thus, is non-final.
{35} In criminal cases, “an appeal may be taken by the defendant to the supreme court
or court of appeals . . . within thirty days from the entry of any final judgment[.]” NMSA
1978, § 39-3-3(A) (1972). “[T]he judgment is final for the purpose of appeal when it
terminates the litigation on the merits and leaves nothing to be done but enforcement. A
sentence must be imposed to complete the steps of the prosecution.” State v. Durant,
2000-NMCA-066, ¶ 5, 129 N.M. 345, 7 P.3d 495 (alterations, internal quotation marks,
and citation omitted). Generally, a “judgment is not considered final unless all issues of
law and fact have been determined and the case disposed of by the [district] court to the
fullest extent possible”—termed the “last act” requirement of the finality rule. Id. ¶ 7
(internal quotation marks and citation omitted). We have, however, recognized
exceptions to the “last act” requirement. Under the “sufficiently aggrieved” exception,
our Court recognized that an appeal may be taken “when the consequences of the order
that is not the last contemplated order in the case are sufficiently severe that the
aggrieved party should be granted a right to appeal to alleviate hardship that would
otherwise accrue if the appeal were delayed.” Id. ¶ 8.
{36} In this case, the district court sentenced Defendant in May 2015 to a four-year
term of incarceration, followed by a mandatory two-year term of parole, and immediately
remanded Defendant to the New Mexico Department of Corrections. Given that
Defendant has been convicted of a felony and incarcerated, there are immediate and
definite consequences—both direct and collateral. See id. ¶¶ 9, 10. Defendant is
“sufficiently aggrieved” to permit her immediate appeal from the judgment and sentence
on Count 8.7 Further, given Defendant already availed herself of the right to immediately
appeal the district court’s denial of her motion for acquittal on double jeopardy grounds,
the usual countervailing arguments against piecemeal appeals simply are not at play in
this case. See State v. Candy L., 2003-NMCA-109, ¶ 6, 134 N.M. 213, 215, 75 P.3d 429,
431 (noting policy disfavoring piecemeal appeals). Accordingly, we conclude that the
judgment and sentence entered on Count 8 is sufficiently final to be appealable, and we
proceed to address Defendant’s sufficiency of the evidence argument.
II. Sufficient Evidence Supports Defendant’s Conviction for Conspiracy to
Commit Drug Trafficking
{37} “In reviewing the sufficiency of evidence used to support a conviction, we
resolve all disputed facts in favor of the State, indulge all reasonable inferences in
support of the verdict, and disregard all evidence and inferences to the contrary.” State v.
Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “Contrary evidence
supporting acquittal does not provide a basis for reversal because the jury is free to reject
[the d]efendant’s version of the facts.” Id. “The relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (alteration,
internal quotation marks, and citation omitted).
{38} In determining whether substantial evidence exists, we review the evidence
against the instructions submitted to the jury. State v. Caldwell, 2008-NMCA-049, ¶ 29,
7
A number of jurisdictions regard a conviction and entry of a judgment and
sentence on less than all counts of a multicount indictment as final and appealable
notwithstanding that a retrial remains on other counts, treating the remaining counts as
severed from the convicted counts. See, e.g., United States v. King, 257 F.3d 1013, 1020
(9th Cir. 2001); United States v. Abrams, 137 F.3d 704, 709 (2d Cir. 1998); State v.
McCave, 805 N.W.2d 290, 304 (Neb. 2011).
143 N.M. 792, 182 P.3d 175. Defendant was convicted of conspiracy to commit
trafficking methamphetamine, contrary to NMSA 1978, Sections 30-31-20 (2006) and
30-28-2 (1979). To support Defendant’s conviction, the State was required to prove
beyond a reasonable doubt each of the following elements:
1. [D]efendant and another person by words or acts agreed together to
commit trafficking methamphetamine by possession with intent to
distribute;
2. [D]efendant and the other person intended to commit trafficking
methamphetamine by possession with intent to distribute;
3. [D]efendant was not acting under duress[;]
4. This happened in New Mexico on or about the 8th day of April, 2012.
UJI 14-2810 (conspiracy). As required by the conspiracy instruction, the essential
elements of trafficking methamphetamine by possession with intent to distribute (UJI 14-
3104 NMRA) also were given. UJI 14-2810 use note 1. As to duress, the jury was
instructed that “[i]f [D]efendant feared immediate great bodily harm to herself or another
person if she did not commit the crime(s), and if a reasonable person would have acted in
the same way under the circumstances, you must find [D]efendant not guilty.” See UJI
14-5130 NMRA.
{39} The AZ Boys, the methamphetamine trafficking organization Defendant was
alleged to be associated with, was run by Defendant’s boyfriend, Robert (Bob) Chavez,
and his brother Joe Chavez. The State’s primary witness was Sonya Sanders, who had
been Defendant’s friend and later became an informant. Sanders’ testimony was as
follows: In February 2012, Defendant asked Sanders if she wanted to travel to Arizona
“to make some money.” Defendant explained to Sanders that Bob Chavez, Joe Chavez,
and Defendant needed a driver because the previous driver “had gotten busted” for
possession of methamphetamine. Sanders agreed and indicated that she knew that
“driving” for Defendant meant transporting drugs.
{40} Sanders made a total of three trips with Defendant and Bob Chavez to Phoenix,
Arizona and back to Alamogordo, New Mexico, which were the bases for the drug
trafficking charges in the indictment. On the first trip in March 2012, Sanders traveled
with Defendant and Bob Chavez to a house in Phoenix. Sanders made the return trip to
Alamogordo in a rental truck, while Bob Chavez and Defendant drove back in another
vehicle. Sanders did not perform well on the first drive back from Arizona. While
driving, Sanders observed Bob Chavez hitting Defendant; Sanders believed Bob Chavez
was taking out his anger about her driving on Defendant. Both Defendant and Joe Chavez
gave Defendant advice on how to drive better in the future. Joe Chavez and Defendant
paid Sanders in cash and methamphetamine for the first trip.
{41} After the first trip, Defendant and Bob Chavez arranged to buy a truck for
Sanders, “to go back and forth to Arizona with them.” About ten days later, Sanders
received a call from Defendant who instructed Sanders that “we’re gonna leave in a
couple hours, get ready.” They stayed in Phoenix for several days. Despite Bob Chavez’s
displeasure, Defendant ensured that they left back to Alamogordo in time for Sanders to
spend Easter (April 8, 2012) with her children. As they prepared for the return trip,
Sanders observed Defendant and Bob Chavez make preparations with a tire on a tarp, and
at one point, Defendant handed Sanders some methamphetamine to help her stay awake
for the return trip. Sanders later observed the tire had been loaded onto her truck. After
getting back to Alamogordo, Defendant “was really happy . . . [because] for the first time
in a long time,” they had someone who was “able to drive.” Defendant and Bob Chavez
compensated Sanders with a combination of methamphetamine and cash.
{42} Sometime after the second trip, Sanders was stopped pursuant to a warrant for
selling methamphetamine. Sanders agreed to cooperate with law enforcement to help
bring down the AZ Boys. In May 2012, Sanders participated in a third trip to Arizona
while cooperating with law enforcement. During this trip, Sanders saw bruising on
Defendant and observed Bob Chavez abusing Defendant; at one point, Sanders asked
Defendant to leave with her but Defendant would not go. Law enforcement ultimately
recovered four pounds of methamphetamine from the spare tire of the truck Sanders had
driven back from Arizona on the third trip.
{43} At trial, Defendant testified on her own behalf and raised the defense of duress.
Although Defendant claimed not to have knowledge about or involvement in the AZ
Boys organization, some of Defendant’s testimony corroborated Sanders’ testimony. For
instance, Defendant testified she had “invited [Sanders] to go to Phoenix” at Bob
Chavez’s direction, although Defendant claimed not to know why. Defendant spoke with
Sanders about making a second trip to Phoenix. Defendant advised Sanders “to be
ready,” and to try not to make any mistakes. Defendant testified that she had given
Sanders methamphetamine when they were in Phoenix on the second trip to help Sanders
stay awake for the drive back. Defendant testified that she knew Bob Chavez “was selling
drugs,” but claimed not to know about the “interstate methamphetamine trafficking
organization” until the second trip with Sanders. In reference to the tires that were used in
the second and third trips, Defendant added that “any person in their right mind would
know what was going on.”
{44} Defendant testified to the abusive and controlling nature of her relationship with
Bob Chavez and that she feared for her life if she left him. Defendant, however,
acknowledged that she and Bob Chavez had previously broken up, and she had received
family support during the breakup. She also acknowledged that she was able to go to her
mother’s home, which was close to the local police station, and that she had family
members who were retired law enforcement.
{45} The foregoing evidence, when viewed in the light most favorable to the verdict, is
sufficient to support the conviction for conspiracy to commit trafficking. There was
testimony that the second trip from Phoenix to Alamogordo happened on or about April
8, 2012, meeting the fourth element. There was significant circumstantial evidence that
Defendant agreed with one or more individuals to commit trafficking methamphetamine
and intended to commit this offense, meeting the first and second elements. See State v.
Montoya, 2015-NMSC-010, ¶ 53, 345 P.3d 1056 (“Just because the evidence supporting
the conviction was circumstantial does not mean it was not substantial evidence.”
(internal quotation marks and citation omitted)); State v. Pacheco, 2008-NMCA-131,
¶ 46, 145 N.M. 40, 193 P.3d 587 (observing that “conspiracy is rarely susceptible of
direct proof and that circumstantial evidence is sufficient to support a conspiracy
conviction”); State v. Donaldson, 1983-NMCA-064, ¶ 25, 100 N.M. 111, 666 P.2d 1258(stating that “possession of a large quantity of a controlled substance, inconsistent with
personal use, is sufficient proof of trafficking”). Defendant’s contention on appeal that
she merely submitted or acquiesced to the conduct of others simply is not borne out when
viewing the evidence in the light most favorable to the verdict. Further, the jury heard
testimony that Defendant exerted some influence over Bob Chavez during the second trip
and had options available to her other than committing the offense. As such, a rational
jury could have determined beyond a reasonable doubt that Defendant did not act under
duress. Therefore, the evidence was sufficient to establish beyond a reasonable doubt that
Defendant committed each element of conspiracy to commit trafficking
methamphetamine (Count 8).
CONCLUSION
{46} We affirm the district court’s order vacating the racketeering convictions, denying
Defendant’s motion for acquittal or dismissal, and permitting retrial of the racketeering
counts. Having determined that substantial evidence supports Defendant’s conviction for
conspiracy to commit drug trafficking, we also affirm Defendant’s conviction for the
same.
{47} IT IS SO ORDERED.
_________________________________
JENNIFER L. ATTREP, Judge
WE CONCUR:
_________________________________
M. MONICA ZAMORA, Judge
_________________________________
DANIEL J. GALLEGOS, Judge