State v. Bradshaw

Hodges's name is via standing in counts of execution. in aid garnishment

writ JUDITH M. CONCUR: T WE BILLINGS, Judge and Z. Presiding JAMES

DAVIS, Judge. AppUT 298 Utah, Appellee, Plaintiff

STATE BRADSHAW, Defendant Brooks Appellant. No. 20020137-CA. Appeals of Utah. Court Sept.10,2004.

(racketeering), degree felony in vio- second lation of Utah Code 76-10-1608 quash Bradshaw filed a motion to racketeering charge on the the bindover degree com- to reduce the of offense charges. munications fraud The trial court respects. motion in both re- denied his We verse.

BACKGROUND hearing, preliminary

2 In lieu of a waived, parties submitted a Bradshaw stipulation setting the follow written forth months, ing period facts. of several Over persons eleven Bradshaw defrauded each, ranging from amounts $400 $600 $5,400. Most of the victims for a total attempting were either to refinance mort process in the gages on their residences or victims, identifying his of foreclosure. After falsely represented himself as the Bradshaw mortgage companies. owner of various promised then to assist the vic Bradshaw refinancing avoiding obtaining tims in fees, exchange for various os foreclosure tensibly appraisals, for title to be used searches, Kennedy and credit checks. Brett Thomas, for two of Bradshaw's William business,1 appraisal mer coworkers Heineman, K. R. Hart and Robert Kent activity, some of the fraudulent witnessed City, Appellant. Lake for Salt falsely rep Thomas to and Bradshaw asked Soltis, Shurtleff, F. Mark L. Christine appraiser to one of the resent himself as an Barlow, City, Appel- Lake for Charlene Salt money, took the victims' victims. Bradshaw lee. promised performed of the but never money pay spent Bradshaw services. ORME, BILLINGS, P.J., Before personal expenses. his THORNE, JJ. charged with elev T The Bradshaw fraud, second OPINION en counts of communications Code degree felonies in violation of Utah Judge: ORME, (20083),2 § and one count Ann. 76-10-1801 (racketeering), a activity pattern of unlawful {1 Bradshaw was Defendant Brooks felony in violation of Utah degree second charged counts of communica- with eleven (2008). Bradshaw § Ann. 76-10-1603 Code fraud, in viola- degree felonies tions second quash (2003), a motion to the bindover filed Ann. 76-10-1801 tion of Code Utah the de racketeering charge and to reduce pattern of unlawful and one count of complaints to those at issue and because 1. Based on unrelated reader, 2. As a convenience amendments, we significant no there have been of Commerce had in this the Department the Viah Code current version of appraiser's cite to the license earlier revoked Bradshaw's in effect when Bradshaw fraudulently than the version practice inflat- rather due to Bradshaw's except charged, as otherwise noted. ing property values. gree personal second, of offense of the communications fraud expenses, charges. legitimately charge State could degree with eleven second felonies under see- racketeering charge, T4 As to the Brad- tion 76-10-1801. argued shaw that the State failed to show plea T6 Pursuant to a agreement, cause that he was Brad (1) "enterprise" required by pled guilty subsections shaw to four attempted counts of fraud, degree communications third of section 76-10-1608. As to the felonies 76-4-102(8) (2008), under Utah charges, communications Code fraud Bradshaw ar- gued reserving right appeal that the State the trial misconstrued the statute court's denial of his motion. generally State v. charging him degree with eleven second Sery, Ct.App.1988). determining degree felonies. offense, accepted The trial court aggregation pleas the statute allows for and the remaining charges "the total money dropped. judg value of all ... ... were A obtained by the ment of conviction scheme or artifice." was entered on Utah Code Ann. four 76-10-1801(2). addition, § attempted fraud, counts of communications the statute provides separate appealed. that and Bradshaw "[eJach communication separate ... is a act and of offense communi- 76-10-1801(5). cation fraud." Id. AND ISSUES STANDARDS OF REVIEW aggregated State first the amount taken T7 Bradshaw appeal. raises two issues on victims, from all of Bradshaw's First, argues Bradshaw that the State's $5,400,surpassing amounted to the threshold charging contrary scheme is language to the degree for a felony. second See id. 76-10- purpose of Utah's Communications 1801(1)(d). The then treated each State Second, Fraud statute. argues Bradshaw separate communication as a offense and at- that erroneously trial court denied his $5,400 tributed the entire to each of Brad- quash motion to the bindover on the racke- victims, charging shaw's Bradshaw with elev- teering charge stipulated because the facts degree en second felonies. argued Bradshaw do not establish that Bradshaw was permitted State should not be "enterprise." avail charging itself of both schemes at once. words, In other under Bradshaw's view the T8 Both appeal present issues 'on State should be to choose whether questions statutory interpretation. "The aggregate the amounts taken from Brad- proper interpretation of a ques statute is a victims, or, alternative, shaw's to treat tion of law." Rushton v. County, Salt Lake each of Bradshaw's sepa- communications as 36, ¶ 17, Therefore, 1999 UT 977 P.2d 1201. rate offenses. Bradshaw contended "we accord no deference legal conclu charged he should have been with either sions of the court [trial] but review them for eleven A class misdemeanors or one second Likewise, correctness." Id. "[the determi degree felony. nation of whether to bind a criminal defen 5 The trial court denied Bradshaw's mo- dant over for trial question is a of law.... tion, first, concluding, the State could review that [Wle determination without def prove "enterprise" element of racketeer- erence Clark, to the court below." State v. 9, ¶8, ing even if 2001UT 20 P.3d 300.3 money used the dissenting opinion, 3. The in its footnote "required relies the dissent to draw all reasonable evi- Clark, cases, among dentiary criticizing other inferences in the state's "the favor." problem applied by bindover majority." standard in this case-and it is rather unique experience-is in our Specifically, there was no length the dissent discusses at some " ' preliminary hearing and there was no evidence preliminary hearing, notion that at a "the introduced from which inferences be drawn. magistrate light must view all evidence in the Instead, agreed to submit a written prosecution most favorable to the and must draw stipulation of facts on the basis of which the all prosecu reasonable inferences in favor of the '" propriety charges was to be evaluated. Clark, ¶ 10, tion." 2001 UT 9 at 20 P.3d 300 procedure While this no doubt saved the State (citations omitted). Ordinarily reviewing calling presenting trouble of witnesses and determinations, bindover "we are," as stated by evidence, the decision to bind Bradshaw over $5,400 ANALYSIS aggregated amount of to each of Brad- eleven victims. shaw's Statutory Interpretation I. Rules of {12 statutes, statutory pri- our Pursuant to the rules interpreting T9 "When above, intent and look to evince 'the true construction outlined we first mary goal is ex rel. Legislature"" The relevant purpose of the statute. Lands v. Forestry, Fire & State provisions Division Communications Fraud Utah's 8,%10, (quot- 44 P.8d 680 Tooele are as follows: statute Care, Intermountain Health ing Jensen Any person who has devised 1984)). Inc., Gener- or artifice to defraud another or to scheme of a statute's mean- ally, the 'best evidence' money, property, or from another obtain language of the act." Id. [is] anything of false or of value means moreover, act, language of an reading "In representations, pretenses, fraudulent - parts all [of statute] we seek 'to render omissions, promises, or material and who therefore meaningful, and we relevant and directly indirectly communicates term legislature use[d] each 'presume by any any person means for the ordinary according advisedly to its executing concealing the scheme or (alterations ellipsis in meaning"" guilty artifice is of: omitted). (citations means This original) be expression of one should [term] that "the (a) a class B misdemeanor when the val- ... the exclusion of another interpreted as money thing property, or ob- ue of the statutory language omissions in [and that] is less sought tained or to be obtained given of and effect'" should 'be taken note $300; than City, Washington Terrace Biddle v. (b) when the a class A misdemeanor 110,114, (quoting Kennecott 998 P.2d 875 money, thing property, or value of the Anderson, 30 Utah 2d Corp. v. Copper sought to is or obtained or be obtained (1978)). $1,000; than but is less exceeds $300 However, plain language of if the T10 (c) degree felony the value "unreasonably a third when ambiguous, con- a statute is money, thing property, or ob- fused, will "seek of the inoperable," we [or] sources, or including sought to be obtained is tained or guidance" from other $5,000; $1,000 than history policy but is less "legislative and relevant exceeds Farm Mut. Auto. considerations." (d) degree felony when the val- a second Clyde, 920 P2d Ins. Co. money, thing or ob- property, ue of the (Utah 1996) (internal cita- quotations and or sought obtained is tained or be omitted). statutory] Finally, "[Utah tions $5,000.... exceeds them proceedings and all under provisions a view liberally construed with are to be (2) degree of The determination (1) objects and of the statutes mea- to effect the shall be offense under Subsection justice." Ann. promote property, Utah Code all by total value of sured the (2000). § 68-3-2 sought money, things obtained or or artifice de- scheme or the obtained Fraud IIL - Communications (1). ... in Subsection seribed argues T11 Bradshaw permitted aggregate the not be

should (5) made for separate communication Each while all of his victims amounts taken from concealing a executing or purpose simultaneously treating each communication in Subsection or artifice described offense, thereby attributing the scheme separate as a employed peculiar procedure opted facts reference to the must be evaluated with stipulation. rescued from the four corners of not entitled to be recited within and it is resulting reliance from its limitations forgone option presenting evi- the factual Having pre- dence, of evidence stipulation instead necessarily position to on a written not in a the State is hearing. preliminary at a normal evidentiary The State sented inferences. benefit from (1) separate interpretation is a act and offense of commu- sensible nication fraud. requires singular statute so includes versa.") added). plural (emphasis vice § Utah Ann. Code 76-10-1801 16 The of the statute indicates view, validity 1 13 In the trial court's "aggregation" "separate of methodology hinged the State's charging provisions fense" apply only single to a interpretation of the word "another" in scheme or uphold artifice. in order to (1) 76-10-1801, subsection of section court, (2) the trial permits aggre subsection "any refers to scheme or artifice to defraud gation of money the total value of "obtained [money] another or to obtain from another the scheme or described artifice by. pre- means of false or fraudulent (1)," Subsection Utah Code 76-10- added). (emphasis tenses." Id. The trial 1801(2) (20083) added), (emphasis while sub court interpret- reasoned that if "another" is (5) permits separate "[elach commu singular, ed in the a "scheme or artifice" nication made for the executing victim; appear contemplate only would one concealing a scheme or described artifice but, hand, on the other if "another" is inter- (1)" Subsection to be separate treated as preted plural, to include the then "scheme or 76-10-1801(5) offenses. (emphasis artifice" multiple could involve victims. added). See State ex rel. Division Forest T14 The trial court concluded that ry, Fire & State Lands v. Tooele term interpreted "another" should be in- 8, ¶ 10, (We UT 'presume P.3d 680 plural clude the form "others" and thus that legislature advisedly each use[d] term the term "scheme or artifice" could include ") . according to ordinary meaning.! its multiple Consequently, victims. the trial (alteration (citation ellipsis in original) court defrauding concluded that of all omitted). Thus, even if used "another" eleven of Bradshaw's victims must be treated subsection should be deemed to mean single as a scheme or artifice under others," "others" would "another statute. have be defrauded single means of a scheme or artifice.5 115 trial interpretation court's the statute gener was erroneous. While it is 117 United Supreme States Court ally singular true that "[the number recognized includes that the word "highly "scheme" is plural, plural and singular," Utah "hardly elastic" and a self-defining term." 68-8-12(1)(a) (2000), § Ann. Code oppo H.J. Inc. v. Northwestern Bell Tel. 492 229, 3, 2893, 3, be U.S. 241 n. site is true 109 S.Ct. when "such 2901 n. construction would (1989). Rather, 106 LEd.2d 195 inconsistent with the manifest intent of "[al Legislature repugnant eye beholder, context of 'scheme' inis of since 68-3-12(1). § the statute[.]" See also whether a depends scheme exists on the level Metropolitan City, Water Dist. v. generality Salt Lake at which criminal is 171, 721, (1968) 14 Utah 2d Indeed, 724 viewed." Id. acknowledges ("IIJt quite is generally held that where a in this case that Utah trial courts have Legislature contrast, 4. When the wished to be clear that it suggest, the trial court did not and the multiple-rather intended cations, singular-impli- than argue appeal, State does not the term Thus, say quite clearly. it was able to so (1), "scheme or artifice" as used in subsections (5), clearly multiple subsection it stated that if (2), (5) similarly and is intended to mean made, " communications are even if in furtherance "scheme or schemes or artifice or rath- artifices single of a scheme or artifice, "[elach separate single er than a Perhaps "scheme or artifice." communication"" constitutes a distinct communi- merely reserving the State argument a for § cations fraud offense. Utah Code Ann. 76-10- case where a apply such view would allow it to 1801(5) (2003). aggregation "separate provi- offense" sions a criminal Selectively adhering who, defendant to the notion that the "sin- example, fraud, swindle, perpetrates a stock a real estate gular plural," agrees includes the with pyramid and a general scheme all in the same trial court that "another"" as used in subsec- (1) period. time tion should There is be construed to no obvious bar to such mean "another or approach singular invariably if the includes the others" and multiple thus that the losses of vic- single aggregated. tims of a plural. scheme can be In

365 Code, which is the Utah Criminal interpreting ways" in "go[ne]l both Singer, "[plrescribe penalties propor are 2A Stat- which Norman J. 76-10-1608. See 45:02, tionate to the seriousness of offenses." Utah § at Statutory utes and Construction (6th 2000) ambigu- ("[LJegislation 76-1-104(8) ed. 17 $ Ann. See also Code ("All persons (2008) ... well-informed pro ous when 76-1-106 Utah Code disagree meaning."). its reasonably as to of this code and offenses defined visions the laws of this state shall be construed However, the United States Su " according import the fair of their terms to 'ambiguity has directed that preme Court justice objects of promote and to effect the criminal statutes concerning the ambit of general purposes of Utah [the the law and lenity'" in favor of should be resolved Code.]"); Singer, 2A Norman J. Criminal States, 6, 14, 98 435 U.S. Simpson v. United 45:12, Statutory Construction Statutes (1978) 909, 914, (quoting 55 L.Ed.2d S.Ct. 2000) ("It (6th golden ed. rule [is] at 81-82 Bass, 404 U.S. States v. United that, statutory interpretation when one of (1971)). 515, 522, Ac 30 L.Ed.2d 488 S.Ct. produces an possible interpretations several Turkette, 452 U.S. States v. cord United result, is a reason for re unreasonable n. 587 n. 101 S.Ct. interpretation in of another jecting that favor (1981) (recognizing that L.Ed.2d result."). produce would a reasonable statutory lenity," "guide "rule of an aid for resolv serves as construction stipula ambiguity"). €20 the instant there ing an 'Twlhen readings criminal stat rational of a schemes, are two multiple not a sin tion establishes other, ute, we are to one harsher than supra gle multiple victims. See scheme Legisla [the harsher when choose the deceived at differ note 5. The victims were definite lan spoken has clear and times, places, by different ture! ent different NOW, Inc., 537 U.S. guage." Scheidler stories, through different methods. The 1057, 1068, 154 L.Ed.2d 991 123 S.Ct. cities, approached in different victims were States, McNally v. (quoting United Jordan, City, including Lake West South Salt 2875,2881, 350,359-60, 107 S.Ct. Jordan, Tooele, Draper. The victims (1987)). also Utah courts have L.Ed.2d promised different combinations were also concept lenity. See State v. recognized the searches, services, including credit re title ("[It (Utah 1981) Barker, appraisals. Only some ports, property presupposition of our law resolve is] facing imminent foreclo of the victims were penal code doubts the enforcement victims were Although most of the sure. imposition punish of a harsher against residences, refinancing in their interested ment."). arrange purchase to Bradshaw offered help another and offered to addition, one victim's store policy "relevant consider project was a "real estate he in victim with may taken into account constru ations" some of the attempting complete." to On Farm Mut. ambiguous statute. State 1183, Clyde, occagions, by at 920 P.2d accompanied Auto. Ins. Co. Bradshaw ap 1996) (internal former coworker. quotations and citations least one couples omitted). victims as proached some of the points out As Bradshaw individually. approached them brief, de other times charging him with eleven second attempts generalize this series felonies, to carrying prison a sentence The State gree each single scheme. See H.J. schemes into a years, see Code Ann. of one to fifteen Utah 76-3-208(2) (1999),6 Bell Tel. subjects him Inc. v. Northwestern § to as 2901 n. 241 n. S.Ct. taking a 165-year prison term much as ("[Wlhether (1989) a scheme $5,400 L.Ed.2d 195 took it from eleven because he total generality at on the level of repug depends exists charging system is people. Such a viewed."). and, Howev activity is which criminal of traditional fairness nant to notions er, simply can disparate cireumstances a stated such additionally, comport with does not 76-3-203(2) recently changed. Code Ann. See Utah Although has been section 76-3-203 (2003). amended, particular provision un- remains fairly so, not be characterized as one "scheme or obvious that this is the statute should artifice" under section 76-10-1608.7 ... light be considered of its back- ground purposel[,] ... together argues 121 The that "it State is the aspects other of the which law have a prerogative legislature to define bearing problem on the involved. punishments" "may crimes and and that it Clume, Snyder impose penalties certain 15 Utah 2d harsher crimes logic compel even if does not them to do so." However, point is well made. in this [ light 22 In of the and relevant Legislature's policy "get obvious to policy underlying Utah's Communications

tough" on aptly communications fraud is statute, Fraud not attribute interpretation served under of section $5,400 aggregated amount of to each previously 76-10-1801 embraced here. As individualvictim of Bradshaw's entire course noted, the statute allows the State treat Therefore, activity. of fraudulent at least on each communication furtherance of a the basis stipulated of the facts separate scheme or artifice as a offense and State, Bradshaw's motion to reduce the de- may, cases, appropriate allow the gree charged offenses on the commu- aggregate money taken from each individual nications fraud counts should have been single, victim pur of a coherent scheme for granted. poses making degree the crimes second by any felonies-stern enforcement standard. III. Racketeering explicit Absent Legisla direction from the ture, however, argues 128 Bradshaw we will not read the statute as State failed to establish cause that additionally allowing the State to attribute he was "enterprise" as re multiple losses from each victim of quired by schemes to all other victims. See Jensen v. Utah's Pattern of Activi Unlawful (UPUAA). Care, Inc., ty Act Intermountain Health 679 P.2d See Utah Code Ann. (2) (2003). 76-10-1608(1), (Utah 1984) ("The Bradshaw is meaning 906-07 of a part act should harmonize with the correct that "[to bind a defendant over for trial, purpose of the Legisla whole act.... (probable the State must show cause' at hardly ture can have intended that a preliminary con hearing" by producing evi struction placed should be on [one section] dence sufficient "to a reasonable be that would result in harsh and unfair results lief that an offense has been committed and Act."). in applying the remainder of the As that the defendant it."8 committed State v. Clark, 9,14 (cita 10,16, Supreme stated our 2001 UT 20 P.3d 300 Court: omitted). always Robinson, It is not tions possible Accord foresee and State v. 1,15, App 63 P.3d 105. This

prescribe means all situations which [a " might apply. Attempts statute] give produce the State must [a 'believable universal statute] and literal evidence of all the elements of the crime frequently Clark, incongruous charged, lead to results 2001 UT 9 at T (citations omitted), were never i.e., intended. When it is "that [Brad- contrast, single multiple a suggest scheme with single vic- scenario a scheme: each victim likely by tims would be established the facts of was deceived at time, same in the same following Suppose scenario. that a defen- place, representa- and with the same fraudulent dant holds an "investment seminar" at a retire- tions as all the other victims. home, gathers ment where he a dozen residents show, together, presents a slide and distributes noted, previously 8. As for better or worse the etc., brochures, falsely detailing the financial re- parties stipulated pertinent to the facts in lieu of opportuni- wards of a nonexistent "investment preliminary hearing. a pre- In the absence of a $1,000 ty." gathers The defendant then checks liminary hearing, light and in of the fact that the attending from each of the residents the seminar. parties anticipated and invited the court to rule just While the investment scam described in- quash on Bradshaw's motion to the bindover volved more victim, than one we think it could facts, stipulated based on the the State nevertheless be was re- characterized as one "scheme" Although quired satisfy involving under section 76-10-1603. its cause burden via stipulation. supra note 3. victims, circumstances in such a multiple teering count. Neither the criminal informa unlawful pattern in a of engaged was] shaw (2) any stipulated involved facts set forth activity was] tion nor the [Bradshaw and Prot. v. Master enterprise." theory enterprise. ap Holbrook an This cognizable of (Utah Ct.App.1994). Corp., Bell, 883 P.2d rejected in proach was State v. TTOP.2d McGrath, (Utah 1988),10 Supreme where the Utah Accord State (1988) prove both ele- (holding must explained that existence of an "[the Court racketeering charge). prevail ments crimes 'enterprise' is essential for the defined "is because the UPUAA crime [UPUAA]" essentially con 924 Bradshaw just consti than the substantive offense more the re demonstrated cedes activity; tuting racketeering it consists of "pattern of quired probable cause on particular relationship between the racke a racketeering. activity" element of unlawful activity enterprise.... teering and an Therefore, prong the second we address enterprise its i.e., proof of the existence of an and racketeering charge, whether showing racketeering activity is relationship facts stipulation contained "enterprise" as was involved [UPUAA]J." essential for a conviction under (2) (1) of section subsections Richmond v. Nation Id. at 108 n. 2. See also clearly not. It did 76-10-1603.9 (ith L.P., 645-46 wide Cassel F.3d Cir.1995) (dismissing complaint be RICO ably stipulation detailed the 1 25 While nebulous, open-ended description of "a cause fraud to the communications facts relative sufficiently identify enterprise does not allowing meaningful evaluation charges, for counts, offense"); ignored the racke it all but of those element of the RICO this essential in, of, engaged any enterprise or the provide: which is subsections 9. Those affect, foreign interstate or activities of which (1) any person who has re- It is unlawful for commerce.... derived, directly any proceeds whether ceived (b) any through person unlawful for It shall be pattern indirectly, a of unlawful activi- from or activity through racketeering pattern or a person participated ty has in which the acquire unlawful debt to or collection of an invest, or or indirect- to use directly principal, maintain, directly indirectly, any or interest income, proceeds ly, any part or the of that any enterprise which is or control income, proceeds derived from the or the affect, the activities of which interstate in, or proceeds, or use of those investment foreign commerce. or in, interest or the establish- acquisition any 2000). (West § 1962 18 U.S.C.A. of, operation any enterprise. ment or " means UPUAA, defined As '[eJuterprise' (2) through any person It is unlawful individual, partnership, proprietorship, any sole acquire activity or main- pattern of unlawful trust, association, or other business corporation, interest in or tain, directly indirectly, any group entity, any legal union or of individu- any enterprise. control of ' legal entity, although not a als associated in fact (2003). §Ann. 76-10-1603 Utah Code entities." Utah illicit as well as licit and includes after, and its Because UPUAA was modeled 76-10-1602(1) Code Ann. to, nearly Federal provisions are identical "enterprise" is almost RICO definition of Corrupt Organizations Influenced and Racketeer counterpart, pro- to its UPUAA identical (RICO), to ... federal case law for Act "we look individual, any '[Eluterprise' includes vides: Baseball, Inc. guidance issues." on these Buzas association, corporation, or other partnership, P.2d 947 n. 5 Inc., Lake v. Salt Trappers, any group legal entity, of individu- union Bell, 1996). (Utah See also State v. legal entity." although not a associated in fact als 1988) ("The (Utah Utah Act and similar n. 1 2000). 1961(4) (West 18 U.S.C.A. provisions referred to in other states have been they because were modeled as 'Little RICO' Acts to in this of the cases referred 10. Several statute[.]"). federal 'RICO' after the Utah's former antiracketeer- were decided under (2) analogs to subsections The RICO statute, "Racketeering Influ- as the known provide: UPUAA Act," or "RICE." (a) and Criminal any person who has ences Enterprise It shall be unlawful for Thompson, 815 n. 3 T51 P.2d See State v. derived, directly or indi- income received (noting CtApp.1988) that RICE rectly, from a the "Pattern of and renamed amended 1987 through unlawful debt in collection of an or Act"), grounds, Activity rev'd on other prin- Unlawful participated person as a such has 1991). (Utah provisions at 18, 2, 415 810 P.2d meaning cipal title within the of section substantially invest, Code, case are in the instant directly issue or to use or United States RICE, they and thus were under same as income, of such or indirectly, any part applies income, authority RICE cited that refers to acquisition proceeds of such equal here. force establishment in, interest or the operation Eichholz, CV-491-084, Gore v. No. 1992 WL that the various associates function as a con 96316, *2, 5998, 1992 U.S. Dist. at LEXIS tinuing unit." State v. Hutchings, 950 P.2d (8.D.Ga. 1992) **7, 24, April 425, (dismissing Ct.App.1997). stipula complaint RICO claim where failed to "iden- vague tion's references to the fact that two of tify enterprise precisely, [an] describe its acquaintances Bradshaw's witnessed some of structure, explain [dJefendants' role misrepresentations partici have racketeering activity associat- pated on one occasion suggestive is not of an enterprise"). ed with the "ongoing organization" or that Bradshaw and his accomplices so-called as a "function[ed] 126 The facts of Bell are illustrative. continuing Clark, unit." Id. See 2001 UT 9 defendant, who owned a con- 15, at (holding satisfy P.3d 300 store, venience convicted of probable cause preliminary standard at hear "by drug trafficking" means of in his store. ing, produce State must 'believable evi Bell, 770 P.2d at 101. The appeal- defendant dence of all the elements of the crime ed, claiming that the State's particu- bill of ") (citations omitted). charged' See also adequately lars "was not put detailed to him Rael, State 127NM. 981P.2d alleged on notice of the factual basis for the (Ct.App.1999) ("Sporadic, temporary criminal element enterprise." of an Id. at 105. Re- alliances do not enterprise constitute an with garding enterprise element, the State's meaning act."), [state RICO] particulars bill of eInterprise recited: "[The demied, cert. 127 NM. 981 P.2d 1208 trafficking consists of the [sic] controlled (1999). Cf, eg., United Phillips, States v. investing proceeds." substances and Id. (7th Cir.) 289 F.3d (affirming the (second original). alteration in The Court enterprise existence of an when detailed evi responded: "By no imagination stretch of the dence long-established showed "a street single enigmatic could this] sentence ... be gang" that was "involved in the illegal sale of containing construed as sufficient factual in- drugs" and was ongoing organization "an formation to describe the State's actual theo- with members who functioned as a continu enterprise] crime, ries of [the element of the ing unit" with "a definite structure with a much permit less to prepare [defendant] to ranking members"), denied, distinct cert. his defense on this element." U.S. S.Ct. 151 L.Ed.2d 1834 Court reversed the defendant's convictions (2001); McGrath, State v. 749 P.2d and remanded for a new trial. See id. at 111. (Utah 1988) (finding sufficient evidence to admittedly 127 While in a different support enterprise existence of an where procedural posture case,11 than the instant defendant accomplice ongoing "had an the Court's observations in applica Bell are association in fact for the making ble here. The State's merely information money from the sale of controlled sub parrots of UPUAA and offers "[djefendant stances"; regularly "fronted insight no into the theory State's drugs accomplice], [his who in turn sold alleged Likewise, enterprise. stipulation users"; them to individual and defendant and nowhere mentions "enterprise." the word accomplice "ke[pt] written accounts of appeal, On postulates that its theo their numerous transactions [which] ry enterprise of an is an "association in fact" seventy-four showed transactions between between Bradshaw and his two former co two}"). [the workers. An "association in fact" enterprise proved by "is evidence of an ongoing organi Likewise, the State misunder zation, informal, formal or evidence stands suggests UPUAA insofar as it it need 11. The State is done no disservice here analo- enterprise. Bradshaw was gizing to Bell. upon The Court in Clark, Bell was called 10,16, See State v. "given to decide whether the defendant was suf- vague, summary allegations If regarding ficiently charges detailed against notice of the enterprise the existence of an are insufficient defense," Bel/, prepare him to enable him to put charges against defendant on notice of the 770 P.2d at whereas here we must deter- him, they necessarily are insufficient to meet the mine whether stipula- set forth in the higher threshold of cause. tion sufficient facts to a reasonable belief

369 “pattern of unlawful activi “enterprise” and “individual” of an to the existence point It is would extend the “enterprise” ty” element. elements into one and satisfy the may virtually be both antiracketeering criminal defendant laws to all scope that a of true “enterprise” under and an “individual”12 offenses. Courts have substantive criminal (2) (1) 76-10-1602. of section subsections a universally rejected such efforts “to dress 433, at 435 Hutchings, 950 P.2d v. See State in and deceit case garden-variety fraud “ “person” and (holding ‘the liable that Condict, clothing.” v. 826 RICO Condict ” entity1 under be the same “enterprise” can (10th Cir.1987).13 F.2d 929 76-10-1603) (2) section of subsections ¶ in stipulation submitted this case 29 The DiCaro, 772 F.2d States v. (quoting United in that an additional fatal defect suffers from cert, denied, (7th Cir.1985), any suggesting facts Brad- it fails to include 89 L.Ed.2d U.S. S.Ct. proceeds from his fraudulent shaw used the However, (1986)). no authori the State cites gain an interest activity to invest or defendant’s sta ty suggesting that a criminal 76-10- enterprise more, “individual,” estab without tus as an 1603(1). Instead, stipulation states Bell, 770 of See a violation UPUAA. lishes money pay “per- Bradshaw used the (“An may enterprise consist n. 2 P.2d at 103 The trial court nevertheless sonal bills.”14 individual, corporation, or other busi of an in re- stipulation sufficient this deemed the association, and any facto entity, or de ness that, law, using finding as a matter of spect, entity.”) illicit legal a or an may be either ac- pattern from a of unlawful proceeds added). most criminal Because (emphasis “qualif[ies tivity personal bills pay one’s “individuals,” the State’s also are defendants racketeering.”15 disagree. We essentially collapse as] would apparent view Turkette, 576, 583, 101 v. RICO United States person a civil or criminal RICO in 12. "The 2528-29, (1981) (em- Henry, 69 L.Ed.2d S.Ct. Crowe v. is the defendant.” action MacFarlane, added). Cir.1995). (5th v. "person” phasis See also Ouaknine A under F.3d Cir.1990) ("Under (2d entity “any capable of F.2d individual or is UPUAA proper- the violation is not estab- holding legal [RICO] interest in of ... a or beneficial 76-10-1602(3) (1999). participation predicate acts of ty[.]" mere Utah Code lished racketeering.”); (cid:127) 2000) (A 1961(3) (West Thompson, U.S.C.A. State Accord 18 ("[UPUAA] entity capa- (Utah Ct.App.1988) not ‘person’ individual or does includes legal pro- holding simply punish multiple or beneficial interest statutes violations of ble of property!)]"). hibiting 76-10- acts enumerated in section Instead, 1602(1). punishes partic- [UPUAA] McGrath, 749 P.2d 631 13. In State racketeering activity pattern bear- ipation in a 1988), explained: Supreme "To Court the Utah enterprise.”). required relationship to an prohibitions running constitutional afoul of avoid jeopardy, courts have against double the federal stipulation deficient in Recognizing 14. gov- Act that the [RICO] under the federal held urges appeal respect, State us this beyond prove element must at least one ernment personal] bills [Bradshawls some of "assume that racketeering activity. That addi- pattern traveling expenses in vehicle covered defendant’s existence of an 'enter- is the tional element contacting various telephone expenses in ” prise.' at 636. assumption. We decline to make victims.” Supreme Similarly, Court the United States Ins. generally Farm Mut. Auto. Rivera v. State ("A stated: 36,¶ 11, stipulation 1 P.3d 539 wholly enterprise comes within criminal That a disregarded at 'may or set aside not be does not mean that the ambit of the statute omitted); ") (citation supra note 3. will.’ activity” racketeering an "enter- "pattern prise.” a conviction under In order to secure dialogue place Brad- took between RICO, prove, both the must the Government hearing at the and the trial court shaw's counsel "enterprise" and the connected existence of an quash the bindover is motion to on Bradshaw's activity.”.... While "pattern of illustrative: separate proof ele- to establish these used coalesce, my contention proof COUNSEL: It’s DEFENSE particular cases ments [UPUAA],[the elements of to meet the necessarily other. in order establish the does not one proceeds invest- were] has] [the to show “pattern “enterprise” racketeer- is not The ing activity”; scheme; furthering the apart towards entity separate ed somehow it is an himself, buy using proceeds engages. him it so in which from take him- Coffee or Star[b]ucks himself some enterprise at all times re- The existence of put gas his car for the movie or proved self to separate must be element which mains a he that. If purpose, wouldn’t meet whatever by the Government. 370 language 1 30 The of UPUAA is clear that in operating est or enterprise."), the cert. denied, 1005, pro- 465 defendant must "use or invest" 996, U.S. 104 S.Ct. 79

ceeds (1984); activity from the unlawful in pro- LEd.2d 229 Allen v. New World manner, namely "acquisition," scribed Inc., Coffee, 2610(AGS), No. 00 Civ. 2002 WL "establishment," "operation or of" an "enter- 432685, "4, 4624, 2002 U.S. Dist. LEXIS at prise." 76-10-1608(1). Utah Code (S.D.N.Y.2002) ("The **8 'essence of a Bell, ("[UPUAA] See TIO at n. 2 108 violation ... [RICO] is not commission of makes it profits a crime to use the of racke- predicate acts but investment racketeering teering activity acquire or maintain an ") Discon, (quoting income.' Inc. v. NYNEX interest in enterprise."). an Accord Hutch- (2d Corp., 1055, 98 Cir.1996), F.3d 1068 rev'd (" ings, 950 P.2d at 480 'A [RICO] violation grounds, 128, on other 525 U.S. 119 S.Ct. occurs not when the engages defendant 16 493, 142 (1998)); L.Ed.2d 510 Barker v. predicate acts, but when he uses or Co., EF. Hutton & EFL, No. C-89-1840 invests proceeds of that 257288,*2, 1990WL 1990U.S. Dist. LEXIS ") (citation omitted). enterprise." 19089, (N.D.Cal. 1990) 6, at July *6 (holding Similarly, 1962(a) 131 Grider v. "section Texas is not violated (10th Corp., Oil & Gas Cir.), 868 F.2d 1147 where the merely RICO defendant profits denied, 820, cert. 110 S.Ct. 107 pattern from a of racketeering activity but (1989), L.Ed.2d 48 the court "Signifi stated: does not otherwise money invest in a cantly, the [RICO] statute does not state that enterprise"). RICO it is unlawful income; receive cousin, 132 Like its RICO UPUAA is a rather, underscores, as the ... fairly statute, intricate criminal stip- and the prohibits statute person who has received ulation in this focused as it was on facts such using income investing init from pertinent crimes, ie., to other garden- to "a proscribed manner." (emphasis Id. at 1149 variety case," fraud and deceit Condict v. original). Thus, prosecu federal RICO Condict, (10th 826 tions, Cir.1987), F.2d 929 showing is that the defendant used the wholly insufficient to demonstrate fraudulently obtained pro- income in the cause to seribed part manner bindover on government's the racketeer- prima Vicom, charge. Sanders, Dempsey facie case. See Inc. v. 182 Har- F.Supp.2d (S.D.N.Y.2001)(" bridge Servs., Inc., [Be- Merch. T7l, 20 F.3d TTS (7th Cir.1994) ("A [RICO] violation ... re cause the RICO unusually statute] is an po- quires receipt weapon-the 'the tent litigation equivalent income from a of a of racketeering activity, thermonuclear and the device ... always use courts must ") income in operation be on enterprise. of an the lookout for putative RICO case (citation omitted); Cauble, really Umited nothing States v. more than ordinary (5th Cir.19883) ("The F.2d fraud case clothed in Emperor's trendy government ") establishes a garb." (quoting Bank, [RICO] violation Schmidt v. Fleet $46 F.Supp.2d proving (S.D.N.Y.1998)); enterprise, existence of an State v. pat Huynh, defendant's derivation of (Minn.1994) 519 NW.2d income from a tern of racketeering activity, and ("Clearly, the use of our statute is not drug limited to any part of that acquiring income in 'kingpins' inter major syndicates, crime but nei- proceeds print uses the out injured business cards to those 1962(a)- violations of section help scheme, further his (d)." communication fraud Tractor, Delta Truck & Inc. v. J.I. Case arguably, that would.... I don't believe the (5th Cir.1988), 855 F.2d 242 n. 1 cert. de- State has evidence that these were used for nied, 489 U.S. 1079, 109 S.Ct. 1531, 103 L.Ed.2d anything just other than him and bis normal 'Congress Since intended civil living expenses. plaintiffs prove RICO the same elements Well, THE COURT: and that's what I'm-I'm prove which the Government must in a criminal finding, respectfully disagree; that I using case,"" Costello, Slattery F.Supp. proceeds himself, will, you if or not (D.D.C.1983) (citation omitted), civil RICO cases furthering towards qualify the scheme does are illustrative of the elements for a under that racketeering. element in the prima racketeering. facie case of 16. The federal RICO statute "creates a civil 1964(c) cause of against action under section © THORNE, Judge (dissenting): to make Act is intended think our ther do we offender."). every criminal out of a racketeer 1] First, although respectfully I dissent. racketeering charge pres- agree I the CONCLUSION question, disagree I with the ents a close policy language 'and to the 183 Pursuant short, In the State's majority's conclusion. Fraud underlying Utah's Communications inferences are all reasonable evidence-when statute, permitted to not be the should suffi- in the State's favor-establishes drawn $5,400 to aggregated amount the attribute charge the at probable to cient ecause perpe- scheme of each each individual victim Similarly, proceeding. when stage of the of his in the course by. Bradshaw trated ana- charges fraud are the communications Additionally, the State activity. fraudulent deference, light lyzed proper with the cause that probable to demonstrate failed language, this court of the statute's "enterprise" as engaged in an trial court acted conclude that the should (2) of section by subsections required denying Bradshaw's motion to properly in court's Accordingly, the 76-10-1608. trial ~ quash. remanded and the case is reversed order motion grant Bradshaw's instructions to with charged offenses degree of the to reduce the Racketeering I. counts and fraud on the communications that the opinion T The decides him, charge against quash the denying Bradshaw's mo- trial erred court may now proceedings as such other and for ‘ racketeering charge. How- quash the tion to appropriate. be ever, grants neither the trial that decision State, court, to which it M. the deference I € JUDITH nor the 34 CONCUR: setting." is entitled this BILLINGS, Presiding Judge. quash a should bindover defendant's Court clarified Utah In motion Supreme granted. not be necessary a defen- quantum to bind of evidence Clark, gave application, Clark "rise to the facts of charges. In See State over on dant 1110-16, discussing reasonable] inferences." [and two alternate 20 P.3d 300. After UT However, earlier a the court established existing precedent, which was the source of at 120. " confusion, duty to view 'all that our great the court formulated its deal of prose- applicable light to the following most favorable standard as the standard evidence " challenges: inferences in and draw 'all reasonable bindover cution' all (citations trial, prosecution.'" Id. at 110 favor of the State a defendant over for To bind added). omitted) although the (emphasis preliminary "probable a cause" at show must be inter- evidence could conceded that the court hearing by "present[ing] evidence to sufficient suggest were noth- preted that the defendants charged has been 'crime establish victims, concluded that innocent it more than has commit- that the defendant committed and charges. quashing the erred in proceeding, the trial court stage "the ted it.'" At this probable cause] ... 26, 44 P.3d show 2002 UT [to In State evidence Schroyer, assumption is that 26 P.3d relatively Hawatmeh, low because and State v. apply again required the stan- stronger court was only get prosecution's will case Hawatmeh, adopted in Clark. In Accordingly, that it had dard investigation continues." evidence, defendants to bind the court had refused conflicting the trial faced "[when charges. kidnaping See Ha- aggravated weigh over on may the evidence magistrate not sift or watmeh, 223. On at 26 P.3d 2001 UT 51 'to the fact tasks ... but must leave those supreme the bind- Instead, appeal, court reiterated magistrate "[the trial'" finder at court at 114-15. The See id. light over standard. most favor- evidence in the must view all then, and the setting the State's forth both after draw all prosecution and must able theories, "(allthough defen- stated prosecu- defendants' favor of the inferences in reasonable may ... be of the facts characterizations dants' tion." evidence, there are (citations plausibly inferred from (alterations omit- in original) Id. at T 10 at be resolved clearly that must factual issues ted). negate the reasonable there supreme further stated facts do not court trial, and the Id. at 120. presented the State." a inferences to maintain principled basis exists "no court's the trial reversed The court therefore between the arrest distinction warrant kidnaping aggravated hearing and reinstated preliminary decision and the cause standard charges. id. at 121. Conse- Id. at 116. probable cause standard." challenged the trial Schroyer, the defendant presents with suffi- the court quently, if warrant, quash intentional of his motion court's denial an arrest to issue cient information Using review, a truncated standard of eral guidance case law for on th{is] issue{ ]." majority opinion Baseball, concludes that the State Buzas Inc. v. Salt Trappers, Lake of, Inc.,

failed to establish either the (Utah 1996). existence 947 n. 5 in, Bradshaw's investment an enterprise.2 law, Under federal case a section majority opinion's approach fails to draw 1962(a) "enterprise" all of the reasonable inferences from the may very However, well evidence in the State's favor.3 "profit be a seeking" entity be fore the evidence and inferences can be represents property interest examined, properly I concede that we must acquired. statutory But the lan- identify by "enterprise" what is meant guage ... does not mandate that the en- determine what evidence satisfies terprise the invest be a "profit-seeking" entity; it requirement. ment Accordingly, I follow simply requires that the enterprise be an majority opinion's lead and "look to ... fed entity acquired was through illegal charges. Schroyer, homicide prosecute UT 26 at M 9- civilly under the same subsection. To 12, appeal, 44 P.3d supreme 730. On court 1962(a), under government section prosecute position reaffirmed its that "[the evidence must prove must enterprise, "the existence of an light be prose- viewed 'in a most favorable to the pattern defendant's derivation of income from prose- cution' with all inferences resolved in the racketeering activity, any part and the use of cution's favor." Id. importantly, at 110. More of that acquiring income in an interest in or the court stated "[the defendant should be operating enterprise." United States v. Cau- bound over for trial 'unless the ble, evidence is whol- 1322, (5th Cir.1983). 706 F.2d Howev- ly lacking incapable of reasonable inference er, when the issue is the civil prove supports prosecu- some issue which 1962(a), plaintiff section even if a can show each (alterations omitted) tion's (quot- claim[.]'" required of the elements for a criminal convic- Talbot, ing State v. tion, they standing have no they to sue unless can 1998)). Furthermore, the court clarified the they show damages suffered from the racke- "(alt stage, stating State's burden at the bindover Vicom, enterprise. teer's investment See stage proceedings, this all that the State Harbridge Inc. v. Merch. Servs., Inc., 20 F.3d must do is establish that its [the crime (7th Cir.1994) theory that, 779 n. 6 (noting under the charged] is reasonable." Id. at T12. Conse- rule, majority plaintiff 1962(a) lacked examining after quently, evidence, the court standing alleged injury because it only has affirmed deny the trial court's decision to acts, alleged predicate from the not from the defendant's motion. See id. funds"); investment-use of the converted Grider In the instant ap- the bindover standard v. Texas Oil & Gas 868 F.2d Corp., plied by majority opinion is insufficient. Un- (10th Cir.1989) ("'It appears thus from the progeny, der Clark and its required we are [(§§ provisions 1962(a) of these two draw all evidentiary reasonable inferences in the (c))] plaintiff that a seeking damages civil for instead, majority state's opinion, favor. The 1962(a) a violation of plead section must facts favor, draws its inferences in Bradshaw's with tending injured to show that he was the use or predictable Although agree results. I this racketeering investment of Injury income. from facts, presented case's as hearing, at the bindover racketeering acts themselves is not sufficient support are insufficient to a conviction of Brad- 1962(a) because prohibit does not those shaw, they sufficiency are similar in to the evi- acts."); Garbade Mining v. Great Divide and Mill- dence presented Hawatmeh, Schroyer, (10th Cir.1987) 831 F.2d 212, 213 Corp., such, presented Clark. As sufficient (same); Allen v. New World Inc., No. 00 Coffee, evidence to bind Bradshaw over on the racke- Civ. 2610, 2002 WL 432685, "4, 2002 U.S. Dist. teering charge. (S.D.N.Y. LEXIS 2002) 4624, at **8-10 Mar. (same); Co., Barker v. E.F. Hutton & No. C-89- majority opinion refers to a number of civil 1840, 1990 WL 257283, "3, 1990 U.S. Dist. LEX- support analysis. RICO cases to its I take no (N.D.Cal. 6, 1990) IS July (same). at *8 issue with its reference to civil cases in this Thus, civil perfectly cases are not analogous. context, disagree nor do I with its assertion that prove the State is that the defendant 3. The decision of to draw was involved enterprise and that funds no inference in favor of the State because the racketeering derived from his activities enabled parties stipulated presented to the facts the defendant to invest resources in the enter- magistrate Moreover, precedent. is without prise. approach that, fails take into account not accepting Bradshaw not I would stip- highlight forced into like, however, one ulation, material difference exists criminally voluntarily between he entered into it. Conse- prosecuting racketeering charges, quently, based on viola- I penalize can discern no reason to 1962(a), tions of 18 U.S.C.A. eligibility refusing to draw all inferences in its bindover) (for the existence of purposes of from ille- money generated activity or the composition. enterprise, regardless of its activity. gal Similarly, 1 40 Scheidler, Women, Inc. Org. National 1962(a) rigorous does not exact [slection 249, 259, 127 L.Ed.2d 114S.Ct. of income derived proof of the exact course (1994)4 not re Additionally, courts have into from a sup plead the facts quired prosecutors key "use or investment." its ultimate in detail. racketeering indictment porting a section, specifi- operative terms of the Habicht, F.Supp. United States here, re- cally charged expansive, are not ("There (D.Mass.1991) simply case no invest," "any part," ones: "use or strictive ° contention the defendants' law to "directly or proceeds," ... or ... "income plead must facts indictment that a RICO operation." indirectly," "establishment Agurite detail."); Am- Corp. v. extraordinary broad, disjunctively- these In combination (S.D.N.Y. F.Supp. & ster any requirement negate phrased terms 1990) that, it from the fraud (stating aside specifical- income must be that the tainted not self, charge need of a RICO the elements directly proof from its ly and traced fact, And, in particularity). pleaded ultimately pro- illegal receipt to its original necessary prove are to "three elements while by the defen- "use or investment" scribed ele enterprise[,]" these of an the existence dant. a necessary plead cause "are not ments 1184, 1194 Vogt, v. 910 F.2d States United Federal statute." under the RICO action Cir.1990) omitted). Moreover, (4th (citations 1179, 1183 Ayers, F.Supp. T4l v. Ins. Co. that sav- have also determined federal courts (E.D.Pa.1990). any requirement is there Nor racketeering ac- ings realized as result enterprise sepa be the person that the tivity satisfy requirement. income the Chappa- See Riverwoods rate or distinct.5 ("The F.Supp. at 578 Corp., 780 Azurite Bank, N.A., 30 Midland gua Corp. v. Marine savings, which are the eannot find that Court (2d Cir.1994) (stating "there is 345 F.3d or otherwise ille- of fraudulent direct result 1962(a) (as op under section requirement no income."). activity, are not gal 1962(c)) 'person' that the be posed to section Therefore, plead 76-10- 141 a section "); Banks v. 'enterprise' from the distinct 1603(1) adequately, the State is not violation (8d Cir.1990)(same); Wolk, 418,421 918 F.2d of direct invest- produce evidence Publ'ns, News 884 Inc. v. Kable Official ment, directly showing the nor even evidence Cir.1989) (same); (7th Yellow 668 F.2d money enterprise. Rath- investment of Drivers, Helpers & Lines v. Bus Chauffeurs evidence, merely er, produce the must (D.C.Cir. 132, 140 F.2d Local Union bindover, purpose of specific again for the (same). 1989) be inference could a reasonable from which activity enabled the drawn that inter- purposes for Consequently, T39 further proceeds the to use the defendant 76-10-16083(1), section preting Utah Code enterprise. his interest nothing requires that the defendant there is { Here, Nor does enterprise stipulated to be distinct. facts demonstrate the the of un- in a that Bradshaw 76-10- require that a section statute the income. 1603(1) he realized any particu- activity from which charge pleaded with lawfal that Brad- showed stipulation further Instead, only requires larity. the statute purposes. for his own used the funds reasonably suggest shaw evidence that State's 1962(c)) 1962(a) (as opposed to section certain and I am favor, as required, 'enter- 'person' from the be distinct doing majority opinion errs in so. a an "). prise' term Although Supreme Court uses the "there is no has held that one circuit 5. At least as limit- not be this should interpreted "entity," enterprise have an enter- scope requirement under RICO that can constitute of what United States structure.'" Corp. Ma- an 'ascertainable Chappaqua prise. See Riverwoods Cir.2003) (citation N.A., (2d (1st Bank, 30 F.3d F.3d Midland rine Connolly, omitted). Cir.1994) requirement (stating under "there is no information, From this it takes little effort to 69 L.Ed.2d 246 (reviewing con draw the reasonable inference that Bradshaw victions of racketeering, fraud, mail and "var was able to save legiti- funds derived from acts"). ious [other] substantive criminal mate and that he could then invest light 45 In admissions, of Bradshaw's Moreover, those saved funds. stipulation majority opinion's analysis problematic. can reasonably also be interpreted suggest Although possible it is jury might that a have that Bradshaw himself was enterprise concluded that the evidence was insufficient through and that enterprise he was able to convict Bradshaw "racketeering," there to collect sensitive information concerning nothing suggests record that people's circumstances, needs, financial crimes nothing amounted to "gar- more than desires, satisfying thus enterprise related den-variety" Rather, fraud. Bradshaw's requirements 76-10-1608(1). of section crimes evince image of a profligate con- Finally, majority opinion states man, bent on victimizing large number of universally rejected "[clourts have such susceptible people through efforts 'to dress a garden-variety fraud and method, a common and then using pro- deceit case clothing.'" RICO (Quoting ceeds to finance his further endeavors. Condict, (10th Condict v. 826 F.2d Cir.1987).) majority 4] further Second, opinion's concern suggest seems to great courts must take potential misuse of racketeering charges, care to only proper ensure that defendants understandable, while finds little subject prosecution are under Utah's Pat- either the United Supreme Court, States (UPUAA). tern of Activity Unlawful Act I in the federal courts appeal. succeinetly As decline to subscribe to either of these asser- Supreme stated Court: 'The occa- tions. Congress' sion for action perceived was the need to First, organized combat 44 erime. But Bradshaw's victims Con- likely would gress cogent for not characterize reasons chose "garden-vari his crimes as to enact a ety," general statute, more which, they nor one likely although would by be it offended organized the had racketeering focus, charge.6 Furthermore, crime as its was not - from us, the limited in organized evidence to before it is clear that crime." Org. Women, National required Bradshaw's Scheidler, crimes not great a Inc. v. 249, 260, 510 U.S. 114 S.Ct. deal of forethought, 127 L.Ed.2d planning, execution " ' (1994) (citation part, omitted). his 99 but that in selecting his victims "The fact that RICO applied has been he great in situations not had access to a deal of sensitive financial expressly information that anticipated should by not Congress have ... dem- been Moreover, available to him. contrary onstrates breadth."'" to Id. at 114 S.Ct. majority (citations the opinion's omitted). desire to 798 Or, describe as the First and similar stated, Cireuit Court Appeals situations as "garden-variety 'Congress deceit," fraud and communications fraud has instructed us to "liberally construe RICO racketeering may well occur hand-in-glove. to effectuate its purposes."'" remedial See, eg., States, Russello v. United 464 U.S. United States v. Commolly, 341 F.3d 28 16, 17-18, 104 S.Ct. 78 L.Ed.2d 17 (Ist Cir.2003) (citations omitted); see also (reviewing the defendant's convictions for Cauble, United States v. 706 F.2d mail fraud racketeering); (5th Cir.1988) ("RICO's Umited States application and effec- Turkette, v. 576, 578-81, 101 S.Ct. tiveness have been judicial enhanced the 6. The case majority opinion cited for this deceit," the court found that the action had been proposition inapplicable is to because, this case. properly See Con- dismissed plaintiffs failed Condict, (10th dict v. Cir.1987). 826 F.2d 923 pattern to show both "a racketeering activi- Condict dispute focused on a civil that arose "continuity ties" and requirement" family between ownership members over satisfy 1962(c). inter- section (quotations Id. at 929 esis in a ranch. See id. at appeal, 924-25. omitted). On and citation In this Bradshaw following claim, the trial court's dismissal of the engaged concedes that pattern he in a of racke- Appeals Tenth Circuit upheld Court of teering activity, continuity requirement However, trial court's decision. although 1962(c) Thus, of section application. has no phrase "garden court used the variety fraud and helpful. Condict is not money. actual need for though perceived or their may used even that it be consensus reasonably inter charged[.]"). is can also be The evidence organized crime no policing than that Brad rather an inference Consequently, preted to charge a defendant decision existence, State's proceeds to fund his used the shaw possible thermonu- avoid its racketeering to ongoing efforts to de lifestyle, and his properly limit- effects, more our role is clear evidence, and victims. This fraud additional determining solely whether State ed to made inferences that can be all reasonable burden; ie:, the information is met its it, that cause ex from demonstrate support bindover? sufficient evidence activities that Bradshaw's isted to believe racketeering8 See Riverwoods amounted to Here, he en Bradshaw concedes Bank, Chappaqua Corp. v. Marine Midland activity. He unlawful pattern in a gaged Cir.1994) (2d N.A., (stating F.3d from having proceeds realized also admits under only question requirement left "there is no pattern. 1962(c)) 1962(a) (as infor sufficient presented opposed to section whether the State bindover, from the 'enter 'person' be distinct show, for the mation to pro Publ'ns., of unlawful "); and the use enterprise Inc. v. Kable prise' Official Cir.1989) (24d enterprise.7 F.2d News ceeds to the benefit 1962(2), ("Thus, it under [section] presented evidence 148 The State to also be the enter possible for defendant unlaw in a had Mut. Ins. American prise."); accord through he defrauded Mfrs. ful activities Townson, F.Supp. Co. geographic a wide people, over number (E.D.Tenn.1995) marriage (finding that a can $5,000. amount over range, aggregate of an requirement for section satisfy enterprise subject a reason evidence The State's claims). 1962(c) Consequently, the trial to, access Bradshaw had inference that able motion to properly denied Bradshaw's with, court information sensitive provided or was finances, quash order on the the bindover as well concerning the victims' been bound over the defendant had intimate that concluding failed to show that Rather, atten- improperly. the court focused its probable cause to believe that Brad- there provide ade- enterprise, on the state's "failure tion was involved in an shaw particulars" that said quate and concluded bill of Bell, relies on State (Utah 1988). opinion "unfairly prejudice{d Although majority defendant's] con- the the failure supreme present at trial. ability prepare court in a a defense" the to and cedes that Bell reached posture, fails to procedural its at 107. different key clearly identify the differences. in Bell was focused the court Consequently, although trial, and the of the defendant's fairness Bell, racke- convicted of the defendant was discussed, the discussion issue was the enterprise appealed teering by jury. at 101. He See id. necessary proof to solely that is on the focused See id. The conviction was reversed. and his id. at statute. See convict under our state had failed supreme court found that the Accordingly, that Bell I do not believe 2. 103 n. ordered bill provide with court the defendant resolving does Bel/ instant nor the assists Consequently, the particulars. id. at 105. See analysis of any to the material assistance offer defendant's supreme concluded that the court de- court. Had Bradshaw the before this issue irreparably prejudiced had been defense efforts sired, upon to demand relied Belf he could have ('The id. at 106 inaction. See the state's have particulars, the State would a bill of State's whether the then, specific question, particulars. provide required to those been of these three defendant] [the failure notify allegations [an] the enterprise factual bases for necessary, clear that the it is also not While ability prepare a defense to impeded his so supporting Brad- and reasonable inferences facts require under allegations reversal as to those distinct pattern conduct are of unlawful shaw's Proce- Utah Rules of Criminal rule 30" of the tend to that would and inferences from the facts dure.). Specifically, that the the court found the he, himself, enterprise show that provided with the was not defendant gains ill-gotten used his that he somehow adequate- him to that would have enabled notice Hutch- enterprise. But see State v. the benefit of at 107. ly prepare defense. See id. (not- (Utah Ct.App.1997) ings, P.2d the sub- Significantly, discussed Bell nowhere implicitly Supreme Court has cause, "the Utah supreme the court ject nor did prove the of facts used the same set against ruled that the de- suggest filed that the indictment prove used to can be of unlawful by probable supported cause. fendant was not enterprise"). Moreover, the existence of point even in Bell does the court at no charge.9 statute. majority opinion, however, The ig- legislature's nores the clear indication of its II. Communications Fraud intent. Consequently, interpretation the - give fails to effect to the unambigu- statute's

€ disagree 49 I majority opinion's with the ous language, and adopts instead an interpre- decision analysis to focus its on the word tation that "portions renders "scheme" in statute its interpretation superfluous inoperative/" Martines, or of the communications fraud statute. I am T8, 2002 UT 80 at also 52 P.8d problematic concerned with 1276 as well as a determi- " reading "another," nation that plain the word its 'contradict[s] as used in mean- statute, ing.'" Burns, 56,9 State v. interpreted should be solely in 2000 UT (citation omitted). singular. Accordingly, disagree I majority opinion's upon reliance these 1 52 majority opinion's The approach then terms to ambigu- conclude that the statute is interpretation uses its of "scheme" as a that, ous and under lenity, the rule of springboard for its determination that precluded State is charging from word "another" must be singu- viewed Finally, as it did. I disagree majori- with the However, lar. beyond its reliance on the ty opinion's foray discussion, policy into "scheme," term majority opinion offers is, instance, in this inappropriate little support substantive interpreta- its invasion of legislature's province. tion of approach "another." ignores This our majority opinion parses the lan- duty to interpret fluidly, such words offering guage of section 76-10-1801 to determine plural both singular application, unless operative statute's controlling such an interpretation would be "inconsistent However, term so, is "scheme." doing with the Legislature intent of the or manifest majority opinion ignores plain both the lan- repugnant to the context of the statute." guage of the duty statute and our 'avoid 68-3-12(1) (2000) Utah Code Ann. (empha- interpretations portions will render of a added). sis Because section 76-10-1801 con- superfluous statute inoperative.'" or tains no limiting such language, we must Martines, 80, 18, 52 P.3d 1276 presume legislature intended "an- (quoting Corr,, Department Hall v. other" to refer to one people. Thus, or more 34, 115, 958). UT Section 76-10- language of section 76-10-1608 does 1801, in part, relevant reads: not majority opinion's reading. Any person who has devised scheme another or to obtain ¶53 artifice meaning defraud of section 76-10-1608 is from money, another property, anything clear and no ambiguity exists. Without am value means of false or fraudulent biguity, opinion's lenity discus pretenses, representations, promises, or sion unnecessary and inapplicable. omissions, material and who communicates Org. Women, National Scheidler, Inc. v. directly indirectly or any with person by 249, 262, 510 U.S. 114 S.Ct. 127 L.Ed.2d any purpose means for the of executing or 99 (stating lenity "the rule of applies concealing the scheme or is ¢ artifice only when an ambiguity present; is "it is guilty[ of communications fraud.] not beget used to one.... The rule comes 76-10-1801(1)(1999)(em- Utah Code Ann. operation into at the end of process the of added). phasis construing Congress what expressed, has not 151 It is clear from at statutory beginning the the plain as an overriding consider '" legislature the ation of being (ci chose the wrongdoers." lenient to phrase "scheme omitted) or artifice to in defraud" tations (ellipsis in original)). Simi articulating the prohibited conduct by larly, the the opinion's foray policy into Although presented the evidence at the bind- court's instruction that we assume the State's hearing over is sufficient to survive a motion to only get Clark, stronger, case will see State v. quash, agree more, I that absent the evidence is 9,910, 20 P.3d the trial court probably insufficient to convict Bradshaw of properly quash. denied Bradshaw's motion to However, racketeering. upon supreme based the

377 gree felony property, the value of the by su when As noted our inadvisable. equally is sought or money, thing or obtained preme court: $5,000; obtained is or exceeds require legislature the may not "We penalty possible so severe the least select cruelly is not

long penalty the selected as degree any of determination of the The disproportionate to the crime or inhumane by the total offense ... shall be measured heavy rests on And a burden involved. money, things property, of all or value judgment would attack those who sought or to be obtained obtained people. representatives of ... or artifice. scheme society legislatures, not a democratic '[IJn separate communication made for Each courts, respond are constituted concealing a purpose executing or moral values consequently and will separate act or artifice ... is a scheme ~ people.'" fraud. offense communications (Utah Mace, v. 76-10-1801 Utah Code (citation 1996) (alteration original) omit suggests plain language statute's Herrera, ted); P.2d v. see also State meaning seope is defined statute's 1995) (Utah policy (noting that discus artifice application phrase of the "scheme or legisla accomplished are "better sions to defraud." courts"); Sullivan v. Scou- ture than in the "(Scheme is or artifice to defraud" 1998) lar Grain design to widely to mean "the overall defined ambiguity, absence of (stating that many by common or means of a defraud one the wisdom of are not "free to courts assess v. plan technique." States Mas- or United statutory (quotations and citation scheme" Cir.1995)(em- (10th sey, F.3d omitted)).10 added); Rog- phasis see also United States upon to Accordingly, are called we (Oth Cir.20083). ers, 321 F.3d the State's whether decision determine of, Massey, were convicted the defendants felony counts multiple charge Bradshaw with alia, eight counts of mail fraud. See inter fraud was of communications proper under appeal, Massey, at 1564. On 48 F.3d language of the statute. Section argued defendants reads, part: in relevant 76-10-1801 " or artifice meaning phrase 'scheme any scheme Any person who has devised de- is limited to each individual to defraud who another or artifice to defraud (citation omit- Id. at 1566 frauded client." indirectly directly or communicates ted). court, response, stated that not by any for the person means argument spurious only was the defendants' concealing scheme or executing or to de- unsupported, but that 'scheme guilty of: artifice meaning than an individu- has a wider fraud defined of fraud." Id. It better

al act many or design to defraud one "the overall when the value a class A misdemeanor money, thing obtained or technique." property, plan common by means of a added); also United States (emphases see exceeds sought to be obtained is or $300 T5, 78-81, 871 U.S. $1,000; Sampson, . a second de- less than but is seem that we it would regardless mon method or outcome, involves technique, This of meaning 76- agree Utah Code section statutory interpreta- on the of nothing than standard more 244,%10, disagreement rests instead Our Hardy, App 10-1603. tion. See State meaning. in its language the statute and not (stating clear "[when P.3d 645 policy majority opinion's discussion unambiguous, to mean what it must be held properly strays construction not into an area of construc- and no room is left it expresses, omitted)). (citation Herrera, tion'" court. See State before this (Utah 1995) (stating if a court ambiguous. "[elven is not fraud statute communications fact, majority opinion legislation unwise, or both the unreasonable because finds certain authority to it has analyses alone does not mean ultimately rest their the dissent M it"). invalidate followed a com- Bradshaw's conduct whether 136(1962)(holding 9 L.Ed.2d that activities in promised even one of the services.12 Be activity, of fraudulent but not direct cause Bradshaw used the same method or ly themselves, fraudulent in and of can technique also victims, to defraud all of the be considered violative of the federal mail conduct amounted to one "scheme or artifice statute). Thus, fraud because the meaning Consequently, defraud." task phrase of the "scheme or artifice remaining to defraud" to this court should ensuring usage, has a clear pre historical we must properly statute was applied to legislature sume was aware of its Bradshaw.

meaning when it phrase chose to use the in 76-10-1801(2), 157 Under section the se- criminalizing communications fraud. Conse verity charges against levied Brad- quently, presume we legis must also that the shaw must by be "measured the total value lature intended applied the statute to be money of all ... by obtained ... plan "common technique" by or used scheme or artifice described in Subsection defendant many [people "defraud one or (1)." 76-10-1801(@Q). Utah § Code Ann. or Massey, entities.]" 48 F.3d at 1566.11 Having concluded that Bradshaw a single defraud," "scheme or Here, artifice to stipulated Bradshaw underlying facts charged nothing conduct. That simple remains other than arithme- tic. stipulated facts, From the clearly conduct suggests that all of Bradshaw's Brad "scheme artifice to yielded defraud" him shaw's efforts plan involved one common $5,000.00. over Accordingly, technique. Simply under the put, stat- Bradshaw somehow ute's language, gained each communication people's access to several sensitive that Bradshaw made financial furtherance of his information. From this informa "scheme or tion, artifice to defraud" could be Bradshaw chose his victims. He chose charged felony as a degree, the second them they because desperately wanted or because the statute criminalize the communi- money needed to refinance their residences. itself, cation not the completion successful approached Bradshaw then each victim and the involved fraudulent scheme. See id. told each a nearly similar or story. identical 76-10-1801(1)(d), (2), owned, He told each that solely he or in part, a mortgage company and that he wanted to Finally, 76-10-1801(5), under section help acquire them their desired refinancing. separate "[elach communication [Bradshaw] He then told them that he needed a certain made for of executing or con front, amount money up perform cealing a scheme or artifice described in Sub variety tasks, of finance related before the (1) separate is a act and offense of victims could obtain their desired refinane- 76-10-1801(5). communication fraud." ing. Each of the eleven gave Here, named victims stipulated Bradshaw that he had made amount, Bradshaw the requested never more or attempted at least separate eleven com $600.00, than after which disap munications in furtherance of his "scheme or peared lives, from their performing never artifice to defraud." Consequently, under 11. This supported by outcome is further puzzled by refer majority I am opinion's conclu commonly accepted ence to the definition of the approached sion that Bradshaw the victims words "to by defraud." As stated the United "through different methods" when it is clear Court, Supreme States "the words 'to defraud' from the evidence the he used one method with commonly wronging refer 'to property one in his just a few minor variations. Moreover, the ma rights dishonest by methods or schemes,' jority opinion's approach contrary seems to be 'usually signify deprivation something both United States v. 371 U.S. 75, 76- Sampson, trick, deceit, value overreaching.'" chicane or (1962), 77, 83 S.Ct. 173, 9 L.Ed.2d where v. United States, 483 U.S. McNally 350, 358, 107 officers, "[the individual defendants were di S.Ct. (quoting L.Ed.2d 292 Ham rectors, employees large, of a nationwide States, 182, 188, merschmidt v. United corporation purported [who] help to be able to (1924)). 44 S.Ct. 68 L.Ed. 968 businessmen obtain loans or sell out their busi nesses," Massey, 12. The United States v. suggests 48 F.3d that these facts (10th Cir.1995), equate do defraud, single not oper to a where scheme or the defendant artifice to scheme, illegal pyramid because the ated lending "[the victims were de multiple ceived at affected victims. times, different different places, through different stories, and different methods." appropriate for the charging level were 76-10-1801(1) language of sections plain conduct, and I would therefore affirm 76-10-1801(5), committed Bradshaw Code See Utah of the trial court. separate violations. decision eleven 76-10-1801(1)("Any person who has §Ann. to defraud or artifice any scheme

devised directly or communicates ... who another by any means for any person indirectly with concealing the executing or violating the guilty" of artifice is scheme statute.)13 App 2004 UT 310 legislature language, By its UNION, LO TRANSIT AMALGAMATED of communica- punish each act has decided unincorporated labor or CAL or artifice of a "scheme in furtherance tion Jolley-Chris ganization; and Caroline defraud," each such act that and determined individual, tensen, Plaintiffs aggregate on the punished based is to be Appellees, There- through the scheme. reaped amount charge Bradshaw fore, decision the State's AUTHORITY, felony communica- a Utah degree TRANSIT UTAH second with eleven proper, and the trial charges district, special fraud incorporated tions transit either the correctly to reduce Appellant. refused court Defendant charges. degree of the or the number No. 20020764-CA.

v. CONCLUSION Appeals of Utah. Court Sept.10,2004. majority opinion's disagree with the IT 60 legislative analyses, its lack of deference I

intent, believe ultimate conclusions. and its Brad- properly denied the trial court quash the motion to shaw's standard, artic- bindover charge. our Under 10-16, Clark, 9,%§ in State ulated evidence established the State's cause to believe sufficient violated the statute. Bradshaw the trial convinced I am further T61 correctly Bradshaw's motion denied court degree the number reduce either charges. fraud communications or method to defraud plan common used one victims; thus, spree uti- his entire crime defraud," artifice to "scheme or lized one increased number subjecting him to the I would con- charges. Consequently, level of charges and number of that both the clude Utah's sen- person serve under will convicted majority opinion about voices concern 13. The Moreover, laws). although possible tencing 165- faced a possibility that Bradshaw pos- and if each count year suggest if convicted of the sentence Bradshaw sentence each term him serve the trial court sentenced tradition- sibly repugnant to notions of "is faced However, pursuant consecutively. to Utah Code suggest vic- that Bradshaw's justice, I would al" (2003), 76-3-401(6)(a) Bradshaw faced tims, faced financial whom have some of 30-years if he were incarceration maximum of possible businesses loss of their ruin-and charges to serve and sentenced of all convicted activities, a sen- would believe homes-due to his consecutively. Code See Utah term each years reasonable. to be tence of (limiting time that a the amount of § 76-3-401

Case Details

Case Name: State v. Bradshaw

Court Name: Court of Appeals of Utah

Date Published: Sep 10, 2004

Citation: 99 P.3d 359

Docket Number: 20020137-CA

Court Abbreviation: Utah Ct. App.