{1} Defendnat filed a motion for rehearing requesting this Court to add certain authority to allow Defendant to pursue ineffective assistance of counsel in a later habeas proceeding. We have granted the motion. We withdraw the opinion filed on August 19, 2009, and we substitute this opinion in its place.
{2} Defendant Henry A. Rivera appeals from convictions of racketeering, fraud, securities fraud, and two other securities-related criminal offenses. Defendant obtained funds from investors for the stated purpose of making certain investments in real estate. In exchange for the funds delivered by the investors, Defendant gave promissory notes to those investors. The primary issues on appeal are claims of insufficient evidence to support his racketeering conviction and claims of double jeopardy with respect to his many securities-related convictions. Defendant also raises several other issues. We hold that there was insufficient evidence to convict Defendant of racketeering, and we reverse that conviction. We affirm Defendant’s remaining convictions.
BACKGROUND
{3} Defendant told six investors that he would obtain a pool of capital and use it to buy investment properties from the Resolution Trust Corporation. Defendant obtained funds from these investors for that purpose and in return gave each of them a promissory note, pursuant to which Defendant would repay principal, with interest, within a short period of time. The notes were prepared on
{4} With respect to the transactions with the six specific investors, Defendant was indicted in August 1994 on several criminal offenses. The charges were ordinary fraud in violation of NMSA 1978, Section 30-16-6 (1987) (amended 2006); securities fraud in violation of NMSA 1978, Sections 58-13B-30 and -39 (1986) (repealed 2009); selling unregistered securities in violation of NMSA 1978, Sections 58-13B-20 (1986) (amended 1997 and repealed 2009) and Section 58-13B-39; and transacting business as a securities broker-dealer without a license in violation of NMSA 1978, Section 58-13B-3 (1986) (repealed 2009) and Section 58-13B-39. Defendant was finally arrested in October 2003, and the charges resulted in Defendant’s conviction in April 2006 on four separate offenses as to each of the six investors, totaling сonvictions on twenty-four counts. Defendant claims on appeal that the six convictions for fraud violate double jeopardy, in that the Legislature did not intend to punish convictions for both fraud and securities fraud. He also claims that the six convictions for transacting business as a securities broker-dealer without a license and the six convictions for selling unregistered securities violate double jeopardy, in that the Legislature intended punishment only for one course of conduct each.
{5} Defendant also engaged in the same conduct with at least fourteen other investors who were given promissory notes and who suffered losses. With respect to these fourteen transactions, Defendant was convicted in April 2006 of one count of racketeering, in violation of NMSA 1978, Section 30-42-4(C) (1980) (amended 2002), which is contained in the Racketeering Act, NMSA 1978, §§ 30-42-1 to -6 (1980, as amended through 2002). Defendant claims on appeal that the State did not present sufficient evidence to prove the existenсe of an enterprise, which is an essential element for a racketeering conviction.
{6} Several witnesses in addition to the six investors testified for the State. An FBI special agent testified regarding Defendant’s arrest by Mexican authorities on September 18, 2003, as well as the events that resulted in Defendant’s transport to the United States the same day. The financial investigator, as mentioned earlier in this opinion, demonstrated that Defendant paid earlier investors with money received from newer investors and testified that Defendant did not actually invest the money in anything. A title company employee testified that Defendant’s properties located within Taos County, New Mexico were highly mortgaged and also that investors who thought their loans were secured by collateral had been deceived because no mortgage was filed, because Defendant did not own the property he offered as collateral, or because the property was already encumbered by substantial prior mortgages. The director of the New Mexico Securities Division summarized the purposes of the Securities Act of 1986, NMSA 1978, §§ 58-13B-1 to -57 (1986, as amended through 2003) (repealed 2009), and gave definitions of a “security” and a “Ponzi scheme.”
DISCUSSION
I. The Racketeering Issue
{7} Count 29 in the indictment charged Defendant with racketeering “[wjhile associated with an enterprise, namely[,] a sole proprietorship which on occasion operated in association with an entity known as Henry A. Rivera Enterprises and/or Building [f]or the Future in the purported operation of a real estate investment business.” The indictment
For you to find the [Defendant guilty of racketeering, as charged in Count 29, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The Defendant was associated with an enterprise.
2. While associated with that enterprise, the Defendant intentionally, and, directly or indirectly, participated or conducted the affairs of the enterprise by engaging in a pattern of racketeering activity.
3. The pattern of racketeering activity includes two or more of the crimes of:
A. Fraud in excess of $20,000 as charged in Counts 1, 5, 9, 13, 21[,] and 25; and/or[]
B. Securities Fraud as charged in Counts 2, 6,10,14, 22[,] and 26[.]
Defendant argues that the State failed to establish that he assqciated with others in a common purpose and that the State thereby failed to prove the element of an “enterprise” necessary for a racketeering conviction.
A. Standard of Review
{8} Whether Defendant’s activities constituted an association with others has been analyzed by this Court employing both statutory interpretation analysis using a de novo review and then a sufficiency of the evidence review of the particular facts in each case. See State v. Rael,
B. The Law of Enterprise
{9} Section 30-42-4(0 states that “[i]t is unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of the enterprise’s affairs by engaging in a pattern of racketeering activity.” “Enterprise” is defined in the Racketeering Act as “a sole proprietorship, partnership, corporation, business, labor union, association or other legal entity or a group of individuals associated in fact although not a legal entity and includes illicit as well as licit entities!)]” Section 30-42-3(0).
{10} The State was required to prove the existence of an enterprise as well as a “pattern of racketeering activity.” Hughes,
{11} The Racketeering Act is similar to and based on the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68 (1994, as amended through 2009). Rael,
{12} Under federal case law, “The enterprise is not the pattern of racketeering activity; it is an entity separate and apart from the pattern of activity in which it engages.” United States v. Turkette,
We believe the factors to be considered in determining the existence of an enterprise include the identity of the individuals involved, their knowledge of the relevant activities, the amount of planning required to carry out the predicate acts, the frequency of the acts, the time span between each act, and the existence of an identifiable structure within the association or entity.
Id. (internal quotation marks and citation omitted).
C. Sufficiency of the Evidence
{13} The State first contends that Defendant waived his argument that the State failed to prove the element of enterprise. The State argues that Defendant was required pursuant to Rule 5-601(C) NMRA to object to the indictment before trial and that Defendant’s sufficiency of evidence position is tantamount to a defense that the indictment was legally inadequate. We reject this argument. The State does not explain why Defendant was obligated to raise evidentiary issues at the time of the indictment or how the indictment was otherwisе being attacked by Defendant as inadequate. The indictment language is hardly factually informative, but it does use statutory language in stating that the enterprise was a sole proprietorship. A sole proprietorship is defined as “[a] business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity.” Black’s Law Dictionary 1427 (8th ed. 2004). The indictment does not describe that sole proprietorship entity any further, except to state that the enterprise on occasion operated in association with other entities known as “Henry A. Rivera Enterprises and/or Building [f]or the Future in the purported operation of a real estate investment business.” In addition, the indictment does not describe either of these other entities. The identity of the entities that the State alleged it would eventually prove to be constituting the enterprise element of racketeering were sufficiently stated in the indictment.
{14} We see no basis on which to rеquire Defendant to have tested the legal sufficiency of the enterprise element as a condition precedent to attacking the sufficiency of the State’s proof of the existence of an enterprise. We do not read Rule 5-601(C) to have required such a challenge to the enterprise element of the Racketeering Act at the indictment stage of these proceedings.
{15} On the sufficiency issue, we agree with Defendant that the State failed to present sufficient evidence to prove the existence of an enterprise with which Defendant associated. The State therefore failed to present sufficient evidence for a conviction under Section 30-42-4(C). The State’s view in the indictment was that Defendant associated with an undescribed sole proprietorship, that this sole proprietorship was the enterprise, and that this enterprise on occasion acted in association with other undescribed entities identified as “Henry A. Rivera Enterprises” and/or “Building [f]or the Future.”
{16} The State attempts to overcome the evidence insufficiency by advocating other positions never raised or argued in the district court by the prosecution. On appeal, the State argues that a legal entity constituting an enterprise existed because “other people and organizations were involved, wittingly or unwittingly,” pointing to Defendant’s insurance firm and to Prudential Insurance Company of America (Prudential) and pointing also to one of thе victims who testified that Defendant had indicated that the victim was his “partner.” The State also argues that an association in fact existed comprised of Defendant’s employees, the pastors and evangelists he exploited, and the participants in the pyramid scheme. Specifically with respect to Defendant’s employees, the State contends that because Defendant had a secretary, because a victim noticed a number of people were in Defendant’s office and working for him, and because Defendant testified that his wife was the bookkeeper and “knows everything that’s going on,” the enterprise requirement was satisfied. The State’s sole support for its contentions regarding Defendant’s wife is a case that is found in a footnote in the State’s brief, McCullough v. Suter,
{17} We reject the foregoing arguments for several reasons. Other than the references to Defendant’s employees and the McCullough case, the State cites no testimony or other evidence, much less any indication by the prosecutor showing how Prudential, Defendant’s insurance firm, or any persons mentioned met the requirements to establish an enterprise, and the State cites no authority to support its arguments. See In re Adoption of Doe,
{18} Finally, the State has not shown where in the record the prosecutor provided any evidence that Henry A. Rivera Enterprises or Building for the Future were anything more than Defendant’s logo or Defendant himself. The most that the State has shown is that Defendant used those names either as a logo or a name under which he chose to individually act. We see no legal or factual basis on which to hold that an enterprise existed independent of Defendant and that Defendant was employed by or associated with an enterprise. See Bd. of County Comm’rs v. Liberty Group,
II. The Double-Description, Double Jeopardy Issue
{19} Defendant contends that because the same facts and conduct were shown in order to convict him of six counts of fraud and six counts of securities fraud, he was subjected to double jeopardy under the double-description test of double jeopardy. Double-description cases are those in which a single act results in multiple charges under different statutes. See Swafford v. State,
{20} The district court gave the same fraud and securities fraud instructions with respect to each separate victim. For fraud, the State was required to prove that (1) “[D]efendant, by any words or conduct, misrepresented a fact to [the victim], intending to deceive or cheat [the victim]”; (2) “[b]e-cause of the misrepresentation and [the victim’s] reliance on it, [Defendant obtained in excess of $20,000”; (3) “[t]his $20,000 belonged to someone other than ... [Defendant”; and (4) “[t]he $20,000 had a market value of over $20,000.” For securities fraud, the State was required to prove that (1) “[D]efendant sold a security, namely promissory notes”; (2) “[i]n connection with the sale of the security, ... [Defendant purposely and directly or indirectly” either “[e]mployed a device, schemef,] or artifice to defraud”; and/or “[m]ade an untrue statement of a material fact or failed to state a necessary material fact where such an omission would bе misleading”; and/or “[e]ngaged in an act, practice^] or course of business which operates or would operate as a fraud or deceit upon a person.”
{21} Defendant argues that the conduct in question was unitary, requiring the analysis to continue to the second part of the Swafford inquiry, namely, whether the Legislature intended to criminalize Defendant’s conduct as both fraud and securities fraud. Defendant then argues that the statutes under which he was convicted do not provide a clear expression of whether the Legislature intended to allow a person to be punished for both fraud and securities fraud, but concedes that under the Blockburger test each offense contains an element the other does not contain, thus raising a presumption that the Legislature intended to punish the offenses separately. See Blockburger v. United States,
{22} Turning to the final part of the Swafford analysis, Defendant states that other indicia of legislative intent overcome the presumрtion established in Blockburger. See Swafford,
{23} Two New Mexico cases specifically address double jeopardy under a double-description analysis in the context of fraud and securities fraud. See State v. Hombeck,
{24} Understanding that Hombeck and Ross present a substantial hurdle for Defendant to overcome, Defendant attempts to distinguish them on the basis that neither case “examined the defendants’ particular conduct.” Defendant draws on language in State v. Franco,
III. The Unit-of-Prosecution, Double Jeopardy Issue
{25} Defendant contends that double jeopardy was violated by the six convictions for transacting business as a broker-dealer without a license and the six convictions for selling unregistered securities. He contends that his acts in connection with each separate offense constituted only one course of conduct and that under a unit-of-prosecution, double jeopardy analysis he could only be convicted of two counts, one of transacting business as a broker-dealer without a license and one of selling unregistered securities. Unit-of-prosecution cases are those in which multiple punishments result for violations of the same statute. State v. Collins,
{26} In regard to transacting business as a broker-dealer without a license, Defendant argues that the plain meaning of the language of the statute indicates that the Legislature intended to punish a course of conduct. The statute reads, “It is unlawful for any person to transact business in this state as a broker-dealer ... unless licensed ... under the New Mexico Securities Act of 1986.” Section 58-13B-3(A). Defendant argues that the Legislature intended to punish a person who transacts business and not punish a person for every transaction in which he is involved, since it is implicit in the language that the broker-dealer would transact business more than once. Defendant argues that even the title of the offense, “Broker-dealer ... licensing,” reflects an intent to punish the unlicensed person and not an intent to punish for each unlicensed transaction.
{27} In regard to the selling of unregistered securities, Defendant argues that the statutory language indicates that the Legislature intended to criminalize selling “some securities of whatever quantity” and not “each specific selling of an unregistered security.” The statute makes it “unlawful for a person to offer to sell or sell any security in New Mexico unless: (A) the security is registered under the New Mexico Securities Act of 1986; (B) the security or transaction is exempt under that act; or (C) the security is a federal covered security.” Section 58-13B-20. Defendant contends that the use of the words “any security,” with emphasis on “any,” is the guide for legislative intent. Defendant’s argument is based on the dictionary definition of “any,” set out by him as follows:
1. one (no matter which) of more than two; as, any boy may go. 2. some (no matter how much, how many or what kind); as do you have any apples? 3. even one; the least amount or number of; as I haven’t any money. 4. every; as any child can tell.any (the pronoun singular and plural): any person or persons (of more than two); any amount or number.
any (the adverb): to an indefinite extent; at all; in any degree; as any farther, any better, any more.
Defendant cites to Webster’s New Universal Unabridged Dictionary 83 (Deluxe 2d ed. 1983), for his definition of “any.” According to Defendant, “any” cannot mean each specific act of selling an unregistered security but instead “illustrates the [L]egislature’s intent to punish a course of conduct — selling unregistered securities.”
{28} Defendant moves from a plain-language argument to a rule-of-lenity argument. He argues that if this Court were to determine the language of the statute to be ambiguous or we were to determine that there was no clear evidence that the Legislature intended to punish a defendant for every sale, “doubt will be resolved against turning a single transaction into multiple offenses.” Herron,
{29} Defendant also makes what he characterizes as a Herron “multi-factor [factual] analysis for determining whether charges of multiple violations of a single statute based on a single course of conduct is proper.” He characterizes the State’s case as one where Defendant allegedly engaged in a single Ponzi scheme to sell unregistered securities as an unlicensed securities salesman over a period of several years. He adds that thе unregistered promissory notes were drafted in a similar manner and the transactions were committed in a similar manner during that time. Therefore, he asserts, it is not the number of investors that should be dispositive, but instead, what is dispositive should be the “one act of selling unregistered securities and one count of transacting a securities business without a license.”
{30} We are not persuaded that grammatical analysis will assist in resolving the question here. See DeGraff
{31} The New Mexico securities laws are to protect individuals from falling prey to unscrupulous, fraudulent securities-related practices. See State v. Kirby,
{32} “The number of victims has been a particularly significant indicator in determining whether acts are distinct” and “a strong indicator of legislative intent to punish distinct conduct that can only be overcome by other factors.” Bernal,
{33} Further, that Defendant may have fulfilled some sort of overall plan or scheme to obtain funds from many victims by deceiving different victims at different times does not somehow mesh or coagulate his actions into but two offenses by labeling an activity to carry out the scheme a “course of conduct.” Thus, the double jeopardy proscription does not require the separate convictions to be merged into one for punishment purposes with respect to either Defendant’s unlicensed status or the unregistered security status relating to each transaction. See Bernal,
{34} Under the foregoing unit-of-prosecution, double jeopardy analyses, we see no multiрle-punishment concern, nor do we see any basis on which to apply the rule of lenity in Defendant’s favor.
IV. The Jury Instruction Issue
{35} Defendant argues that the district court erred in denying his tendered jury instructions. He asserts error in refusing to give a securities fraud instruction that required the jury to find a specific intent, arguing that although securities fraud was a general intent crime, it was akin to general fraud, which is a specific intent crime. He also argues that specific intent is required because securities fraud requires that a defendant “purposely ... employed a scheme to defraud.” Related to the foregoing argument, Defendant also asserts error in refusing
{36} The court did not err in refusing Defendant’s requested instruction on specific intent. The court gave the Uniform Jury Instruction for securities fraud. See UJI 14-4302 NMRA. Securities fraud is a general intent offense. See UJI 14-4302 comm. cmt. Further, inclusion of the word “fraud” in the name of the offense does not show a legislative intent to incorporate all elements of the common law offense. See Ross,
{37} Nor did the court err in refusing Defendant’s requested mistake-of-fact instruction. Defendant shows no mistake of fact. He essentially contends that he was ignorant of the law, a theory Defendant cannot successfully advocate. See State v. Tower,
{38} Furthermore, none of the persons with whom Defendant states he consulted testified at trial. Had consultations occurred, Defendant does not show where he testified that he relied on any particular statement or advice in regard to those aspects of the seсurities transactions that constituted violations of the securities laws or fraud. A district court is not required to give an instruction that the evidence does not support. Barr,
{39} Finally, Defendant alerts us to the district court’s rejection of two instructions, one defining an “isolated transaction” under the securities law, and the other stating that an isolated transaction is an exempt transaction that is not required to be registered. Defendant’s entire argument, however, is that the court erred because “[o]ne part of [his] defense was that his transactions were exempt from securities law because there were no more than ten purchasers in the state during twelve consecutive months.” See § 58-13B-27(U)(l) (stating that a transaction pursuant to an offer to sell securities of an issuer is exempt “if ... the transaction is part of an issue in which there are no more than ten purchasers in this state during any twelve consecutive months”).
{40} Defendant does not show where he advanced this rationale in the district court. In the district court he argued that the transactions were isolated, a defense based on Section 58-13B-27(A), and his tendered instructions were based solely on his theory that an isolated transaction was an exempt transaction under the Securities Act. Defendant did not tender a jury instruction on Section 58-13B-27(U). Defendant did not preserve and cannot advance the Section 58-13B-27(U)-based argument he now asserts in his brief in chief. See Paule v. Santa Fe County Bd. of County Comm’rs,
V. The Remaining Issues
{41} Defendant raises a number of other issues, each of which is based on State v. Boyer,
A. The Ineffective Assistance of Counsel Issue
{42} Defendant argues that his counsel was ineffective for failing to obtain bank records and for failing to locate and call witnesses for the defense. The record and briefs do not indicate that counsel failed to act in any manner that creates a prima facie case for ineffective assistance of counsel. See State v. Dylan J.,
B. The Issue of Error in Failing to Grant a Continuance
{43} This point is a combination of a claim that the prosecutor failed to disclose bank records that it had a duty to disclose, and a claim that the district court erred in denying Defendant a continuance to pursue the records. We see no abuse of discretion on the court’s part. The record and briefs do not show prosecutorial misconduct or other failure that prejudiced Defendant or any prejudice to Defendant by the court’s refusal to grant a continuance. See State v. Sanchez,
C.The Improper Jury Influence Issue
{44} Defendant argues that the district court judge’s anger directed at Defendant denied him a fair trial and due process because the judge’s actions and comments gave the jury the impression that the judge was angry at Defendant. Defendant refers to an incident that occurred when he, while on the witness stand, personally asked the court to grant a continuance in connection with the undisclosed bank records, and the court interrupted Defendant, told him to stop, and then declared a recess. Defendant was escorted from the courtroom. Defendant asserts fundamental error. Our review of the record indicates that the court acted professionally and correctly. We see nothing in the record or in Defendant’s brief in chief that indicates that Defendant was prejudiced or denied a fair trial by anything the court said or did. There exists no basis on which to hold that the court erred in any respect or that fundamental error occurred. See State v. Cunningham,
{45} Defendant contends that even if the racketeering conviction is reversed, he was nevertheless denied a fair trial because the district court refused to sever the racketeering charge. His rationale is that he suffered extreme prejudice by the fact that he was tried on the racketeering charge at the same time he was tried on the securities charges involving six victims. He argues that the racketeering-based transactions involving fourteen individuals were used to infer a criminal disposition to commit the securities fraud. We see no basis on which to determine that the court abused its discretion in refusing to sevеr. See State v. Peters,
E. The Issue of Denial of a Right to a Speedy Trial
{46} Defendant contends that he was denied his right to a speedy trial because of a two-and-one-half-year delay, continuous trial date resettings, assertions of the right to a speedy trial, and prejudice from the delay. We are unpersuaded. This was a complex case whose progress was marred more by Defendant’s actions and conduct and little by the State. Defendant went through four different attorneys. Several Rule 5-604 NMRA extensions were required. Defendant waived the six-month rule and agreed to most of the Rule 5-604 extensions. The district court determined that the delay was caused by and, as well, benefitted Defendant in that the delay allowed him and his four different attorneys to better prepare his defense. The court also determined that Defendant acquiesced or concurred to the continuances and that the delay was also due to Defendant’s absence from the case. Defendant’s early pro forma written demand for a speedy trial filed in October 2003 a few days after his first attorney entered his appearance, and his second pro forma demand filed in May 2004 when his second attorney entered his appearance are of little effect on the issue, and his oral assertion of a violation of a speedy trial made on the first day of trial does not give him any advantage. The record is replete with indications that the delay was defense created, desired, and agreed to. See Barker v. Wingo,
F.The Issue of Sufficiency of the Evidence to Convict
{47} Defendant contends that there was insufficient evidence to convict him of the crimes of which he was convicted. In our view, the record shows that the evidence of Defendant’s guilt on all charges except racketeering was overwhelming. See In re Ernesto M., Jr.,
CONCLUSION
{48} We hold that there was insufficient evidence to convict Defendant of racketeering, and we reverse that conviction and instruct the district court to re-sentence Defendant in accordance with this ruling. We affirm Defendant’s remaining convictions.
{49} IT IS SO ORDERED.