*1 Fеbruary 14, 29, 1989, September reconsideration Argued affirmed and submitted 121) 5, 1990 (310 April 25, petition review June Or denied denied OREGON, OF STATE Respondent, CHEEK, SR., TROY ESTEL Appellant. A49327)
(87C-22077; CA
Rives General, Salem, Assistant respondent. the cause for With him on the brief Dave were Frohnmayer, Attorney Virginia General, Linder, L. Sоlic- General, itor Salem. *2 Presiding Judge, Riggs Graber,
Before Edmonds, and and Judges.
EDMONDS, J. Riggs, specially concurring. J., dissenting. Graber, J.,P.
EDMONDS, J. violating conviction appeals his Act Corrupt Organization and Influenced Oregon Racketeer errors failure assigns He seq. (ORICO). ORS 166.715 qt failure to instruct acquittal, judgment motion for grant his for a new his motion denial of and as he trial. affirm. We that, between
The indictment together predicate acts a number defendant committed allegations constituted dealers, from insurance thefts tractors from included thefts of loss, related to the false perjury by false claims of companies owned defendant claims, property arson of burglaries, some of the to commit conspiracies collect insurance in a engaged defendant alleged that crimes. The indictment racketeering activity while pattern of to- еmployed and associated with “[b]eing among an association between wit [sic]: Loop “D” Horse individually the ‘CircleBar and Beach and as Rental,’ individuals], others unknown to named and [six Jury[.]” the Grand *3 defendant committed offered evidence that
The state acts, the assistance either with charged predicate each of the in the indictment. Defen- or more men named through or one alleged had not conducted the was that he dant’s defense through “enterprise.” an racketeering activity pattern of enterprise under ORICO when constitutes an issue is what individual. by is carried on an enterprise alleged violating Defendant with 166.720(3), provides: which any employed by, person or associated
“It is unlawful participate, directly or with, any enterprise to conduct or through pattern of racketeer- indirectly, enterprise in such a unlawful debt.” ing or the collection of an definitions: provides ORS 166.715 individual, pro- any sole
“(2) ‘Enterprise’ includes trust or other partnership, corporation, business prietorship, union, any asso- entity, includes nonprofit legal and profit or although not in fact associated or of individuals ciation legal entity, a enterprises and both illicit licit govern- and and nongovernmental mental and entities.
<<* [*] j|c [*] [*] “(4) racketeеring activity’ ‘Pattern of engaging means racketeering activity at least two incidents of that have the intents, results, accomplices, same similar victims or meth- of commission ods or otherwise are interrelated dis- characteristics, tinguishing including a nexus to the same enterprise, incidents, and are not provided isolated at least 1, 1981, one such incidents occurred after November that the last such years incidents occurred five within after prior of racketeering activity.” (Emphasis sup- incident plied.) argues an must have an apart
ascertainable structure from an individual conducting Otherwise, unlawful activities with various associates. person multiple commits guilty crimes is of racketeering. points He out that under ORS the state must pattern through racketeering He if that, asserts the same еvidence both an establishes “pattern and a of racketeering activity,” ORS 166.720(3) nothing “becomes more than a recidivist statute and the intent of the legislature special protections to afford against racketeering corrupt organization is thwarted.” that, He us urges to hold establish state must that the defendant his associates had com- mon or shared purpose, continuing functioned unit аnd had an ascertainable structure distinct from the racketeering. He concludes arguing “[t]he only established that he of sepa- was involved a number rate in a of separate individuals number crimes.” argues state the evidence was sufficient that, submit charges jury. points although out separate and a pattern are elements other, proof necessarily one does not establish thе same evidence Finally, can used establish both elements. *4 it argues that defendant’s was erroneous, jury it state must because told that “the of as a various associates functioned continuing unit.” 166.720(3) requires to both the state agree activity We and an of probative might of same evidence that the
with the state legislature an However, included when both elements. “enterprise,” must have the definition individual within proof require individual than evidence of an of more meant to committing multiple ORICO is Because
crimes with others. organized activity, against some connection directed criminal organization an must have been between an individual and Frohnmayer, contemplated. Hamilton, Arnold and See Organized Message Oregon’s Crime,” L 18 Will to “RICO: (1982).1 1, 2-3 Rev apparent legislature wanted to include is that thе
every the definition of ORS kind of within 166.715(2). through for an individual to act It is not unusual separate group organization, from the or structure is Because the individual to facilitate commission crimes. requires proof pattern of and a statute racketeering both originates activity aimed at criminal proof an enter- from a sense of we hold that prise, proof as defined ORS must include of an on-going оrganization, loose, however that is distinct from the separate commission of criminal acts an individual. apply We to the in this criterion case denying determine if the trial court erred judgment acquittal. for Defendant directed a motion four-year young period of commit men from broken families over crimes, He different crimes. chose site of the planned commission, on their instructed thе others how provided necessary commit them and with the means for them the commission. The was entitled to infer that defendant accomplishing through organization acted his criminal objectives “enterprise.” For and thus as an functioned authors, attorneys attorney general general, and two assistant were the primary promoters explain provisions. the article to its Professor ORICO wrote Blakely Oregon explained He Robert drafted the model for the RICO statute. to the activity changed legislation legislature that the nature had and that new of criminal multiple necessary deal with criminal that resulted from formal or organizations prohibitions failed to cover. The informal traditional criminal said, legislation, prosecutors persons he to reach behind otherwise tool responsible in fact crimes. Min isolated acts criminal conduct were those utes, Committees, April 23,1981. Judiciary Senate Justice and House *5 reason, same the trial did in denying court not err a motion for new trial.
Defendant that the trial court instruct jury: “To prove ‘enterprise’ statute, under the the State on-going must informal, formal or that the various of enterprise associates functioned as continuing unit.” Defendant offered young evidence that the men that he at recruited various times were unaware other crimes that committing defendant was with associates. instances, In most one associate was acquainted with another associate. assigns error to the court’s err, failure to the instruction. The trial court did not because the instruction is not a correct statement of law. Although the had to prove state an on-going organization, associates in that organization might and go. prof come fered instruction would erroneously have told jury that the associates i.e., must have continued unit, to function as a every associate has to be involved in some manner with each predicate offense. argues by defining dissent err as we the issue
to what constitutes an when the is аn points individual. out that the charged that was was “an association among between and the defendant indi- vidually and ‘D’ Circle Bar and Beach Loop Horse * * Rental Although the evidence showed that operated under names, those assumed business for the most part, his criminal activities were operation unrelated to the those businesses. When the is compared with the indictment, language оf the reject we the dissent’s premise that the was not an individual. mentioning
The dissent also takes us to task for not
underlying
analysis
proferred
federal
of defendant’s
Turkette,
points
instruction and
United States
452 US
583, 101
2524,
(1981),
S Ct
Affirmed.
RIGGS, J., specially concurring. agree affirming
I
in
defen-
majority’s
result
violating
Oregon
dant’s conviction for
Racketeer
Influ-
(ORICO).
Organization
It holds that
Corrupt
enced
Act
not
failing
the trial court did
err in
statute,
under the
requested
defining “enterprise”
instruction
proffered
instruction is not a correct statement of
because
agree
law.
I
that
the defendant’s instruсtion is
Although
law,
I
also
that
not a correct statement of the
hold
necessary
prove
ongoing organization
the state to
the existence
of an
order
establish
“
166.715(2)
provides,
pertinent part,
‘[enterprise’
that
individual,
partnership, cor-
proprietorship,
includes
sole
poration,
profit
legal
or nonprofit
business trust or other
* *
single
An
is “a
entity
(Emphasis supplied.)
individual
being
human
as cоntrasted with a social
institution.”
(1976).
Dictionary
Third
Webster's
International
“enterprise”
not need
a definition of
We do
to create
requires
given
highly
“individual” be
that
term
specialized gloss.
legislature
no indication that
We have
so
“enterprise”
intended either “individual” or
circum
apply
principle
statutory
construc
scribed. We should
usage
be given
that words of common
should
their
tion
Co., 289
common
Perеz v. State Farm Mutual Ins.
Or
meaning.
legislature
295, 299,
As I understand Judge Edmonds’ and Judge Graber’s analysis, that conduct would not be coverеd ORICO. Although possible ORICO, it is it, as I read might permit the conviction recidivist, of an individual plain meaning the word “individual” in the statute suggests pos- sibility was within the contemplation of the legislature when it enacted this crime-fighting tool.
For these reasons I concur.
GRABER, J., P. dissenting. I dissent. Although I agree with the lead opinion’s analysis of the issues, I would reverse and remand for a new trial because of the trial court’s failure to give defendant’s requested defining “enterprise.” Unlike the major- ity, I believe that the instruction correctly states the law and that may its absence have affected the verdict.
To had violated ORS 166.720(3), the state had to both that he employed by or associated with an enterprise and that he participated in that enterprise through a pattern of racketeering activity. ORICO is directed against organized criminal activity; some cоnnection with an organization is necessary to turn a series of standard crimes into ORICO Frohnmayer, violation. See Arnold Hamilton, Oregon’s “RICO: Message Orga- *7 Crime,” nized 1, (1982). 18 Will L Rev 2-3 Under ORS 166.720(3), the enterprise entity is the through which a defen- dant a pattern conducts of racketeering activity. If there is no there can be no unlawful racketeering. The mean- ing therefore, of enterprise, 166.720(3). is central to ORS
Despite
importance,
its
the definition of “enterprise”
166.715(2)
in
incomplete.1
ORS
is
enough,
is not
as the state
1
contrast,
“[p]attern
racketeering activity”
In
the definition of
states what the
Brandt,
Computer Concepts,
phrase
complete.
See
v.
App
“means” and is
Inc.
98 Or
618, 630-32, 780
(1989).
1961(4) is,
“enterprise”
P2d 249
The definition of
in 18 USC §
Bledsoe,
definition, incomplete.
647, 663
like the ORICO
See United States v.
674 F2d
(8th Cir),
(1982).
cert den
509 groups are asserts, say that certain individuals and simply to itself, statutory the definition Taken “include[d].” ORICO, conviction, of an individual who permit the under crimes; would, it as defen- of related committed a series simply into That was a recidivist statute. dant make ORICO argues, Rather, adopted ORICO. purpose not when legislature’s people through divi- “groups it intended to focus on [who] labor, diversification, complexity of specialization, sion of capital, turn crime into organization, and the accumulation Elliott, 571 F2d business.” United States ongoing Cir), (1978), (5th quoted 439 953 in 884 cert den US Hamilton, L Rev 2 Frohnmayer, supra, 18 Will at Arnold make it had legislature wanted to sure that definition, every included kind of within the not fully underlying concept it had defined statutory incomplete, Because the definition we sourсes, usage, ordinary to beginning should look of the term. Third New Inter complete meaning Webster’s (1976), as “a Dictionary “enterprise” unit national 757 defines (as farm, a organization factory, of economic or 2 FIRM, mine); : A esp organization : business COMPANY.”* necessary aspect organizations they described is that of the people operate of the them. independent have structures comрlete If we use the definition dictionary in ORS definition only statutory gave In definition and described the indictment. case, incorrect,
that proposed instruction was because it enterprise additional every must be associated with the to tell Moreover, throughout preferable life. that “it for its the court wrote would be trial opinion express no to flesh out the bare words of the statute” and nоted: “We as courts statutory merely legally repeating definition is sufficient.” F2d at whether n 16. and 1316 165.075(3) “enterprise” purpose of the business fraud stat defines utes as otherwise, entity persons, corporate engaged “any private in or more of one charitable, organized
business, commercial, political, professional, industrial or activity.” fraternal means, definition, 166,715(2), word That unlike the one in ORS states what the not ORICO, directly apply complete Although in what it includes. It is itself. it does it, dictionary definition, engaged something that is treats an like organized activity independent Those are charac- that has structure 166.720(3) enterprises prohibition conducting general; on in ORS teristics of pattern racketeering activity through charac- assumes them. Those therefore, teristics, part “enterprise.” are of the ORICO definition *8 510 illicit, formally informal,
licit or or may created be an enter- prise. An through individual acts some structure that is separate from in personal capacity the individual his or her may must, however, an enterprise. organiza- There be an tion. That is conclusion consistent with cases under the federal RICO Act3 hold that a sole proprietorship may be enterprise, an if employees, pro- at least it has and the prietor may associate with in proprietorship conducting the pattern of racketeering See Benny, United States v. (9th 1410, 1414-16 Cir), F2d (1986). 786 cert 479 den US 1017 Instead of of giving instructions, the read simply statutory court definition of and the of pertinent part indictment. assigns as error the trial court’s failure give this additional instruction: prove ‘enterprise’ statute,
“To under the must State informal, an ongоing formal or and that the various of associates functioned con- as a tinuing unit.”
Defendant derived that instruction from United States v. Tur kette, 576, 583, 101 2524, (1981): 452 US Ct L Ed S 2d 246 RICO,
“In order to secure a conviction under
the Government
‘enterprise’
must
nected
both the
of
existence
con-
‘pattern
racketeering activity.’
is an
entity,
present purposes
persons
associated
together
purpose
engaging
for a сommon
in a course of
pattern
racketeering activity is,
conduct. The
on
** *
hand,
by
a series of criminal
as
acts
defined
the statute.
by
proved
ongoing organization,
The former is
anof
informal,
by
evidence that the various associ-
formal
a continuing
proved by
ates
unit. The latter is
function
requisite
evidence of
racketeering
number of acts of
com-
* * *
participants
mitted
in the
Thе ‘enter-
prise’
‘pattern
activity’;
is not the
is
it
entity separate
apart
from
in which
engages.
it
The existence of an
at all times remains
Act,
ORICO is
RICO
we have
that federal
modeled after
federal
held
Blossom,
helpful
App
78-79,
construing
it. State v.
in
cases are
88 Or
ment.” States United Court’s discussion Supreme Turkette, in the federal the role of those elеments supra, *9 ORICO, aside role under correctly Act describes their RICO enterprise” requirement “nexus from the to cor- instruction proposed under ORICO. The case, in which indictment states law in this the rectly the enterprise that the was “an association between charged “D” the Bar individually the and as ‘Circle among Loop Rental,’ individuals], named and Beach Horse [six Jury.” opinion’s lead and others unknown to the Grand The issue is begins error in this case with the assertion that “[t]he enterprise alleged ORICO what constitutes an under when 100 at App is carried on individual.” Or 503. individual, is an but that was is not an individual. We need not decide whether the proper in a true “sole proprietorship” would be case. opinion’s lead continues with the assertion error erroneously have told proffered instruction would “[t]he function jury the associates must have continued to unit, i.e., in some
as a that each associate has to be involved Or predicate App manner with each offense.” 100 at 506. The proposed requirement instruction states that the “various as a unit.” continuing associates of the function[] That (Emphasis supplied.) wording correctly suggests that operates different can come and if the structure go аssociates continuing as a unit. only a correct requested instruction was law, necessary and accu-
statement
also was
a full
For
understanding
prove.
rate
of what the state had
reason,
give
the court erred in
it. There was evi-
refusing
support
dence to
a conviction under the correct statement of
law,
agree
so I
not err
majority
court did
However,
refusing
acquittal.4
to direct an
the evidence
have led
a reasonable doubt about
might
have
out,
correctly points
majority
agree,
I
the same
The state
See,
e.g.,
may
United
than one element of the ORICO violation.
more
Mazzei,
(2d Cir),
cert
States v.
den
I dissent.