Baines v. Superior Court In and For Pima County
| Decision Date | 10 May 1984 |
| Docket Number | No. 2,CA-SA,2 |
| Citation | 142 Ariz. 145,688 P.2d 1037 |
| Parties | William Joseph BAINES, Leonardo Ramirez Chiquette, Angel Chiquette and David Mason, Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA, and the Honorable Michael J. Brown, Judge of the Superior Court, Respondents, and The STATE of Arizona, Real Party in Interest. 050. |
| Court | Arizona Court of Appeals |
This special action was taken from the denial by the trial court of the petitioners' motion for redetermination of probable cause or, in the alternative, dismissal of the indictment. The petitioners were among 34 defendants named in a multi-count indictment handed down by the state grand jury on June 28, 1983, alleging various offenses including the possession, transportation and sale of marijuana and narcotic drugs, leading organized crime, illegally conducting an enterprise, and conspiracy. All of the defendants, including petitioners, were charged under Count 4 of the indictment with illegally conducting an enterprise in violation of A.R.S. § 13-2312. Petitioner Angel Chiquette was also charged under Count 13 of the indictment with conspiracy, in violation of A.R.S. § 13-1003. Although petitioners Baines and Mason were charged with other offenses in other counts of the indictment, no issues have been presented to this court with respect to those other counts.
The indictment followed extensive testimony before the grand jury from two witnesses concerning an organization of individuals allegedly headquartered in Douglas, Arizona, engaged in the production and importation of marijuana and cocaine and their subsequent distribution and sale throughout the United States. The witnesses were an informant, who had worked for the organization for several years as a major distributor and seller, and an officer of the Tucson Police Department who had corroborated much of the information given to him by the informant.
COUNT 4
Count 4 of the indictment alleged generally that between September 1980 and September 1982, the defendants were "employed by or associated with an enterprise and conducted its affairs through racketeering." This count follows with 19 pages of allegations describing in general terms the creation and operation of the organization to import and distribute marijuana and cocaine, the role of each defendant in the organization, and specific acts done by each in connection with the organization. With respect to these petitioners, the indictment alleges as follows: 1
1. Petitioner David Mason.
2. Petitioner Angel Chiquette.
3. Petitioner Leonardo Chiquette.
"LEONARDO CHIQUETTE was a worker and salesman for the organization.
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67. On or about March 25, 1981, LEONARDO CHIQUETTE traveled from Tucson, Arizona to Denver, Colorado and stayed at the Howard Johnson Motor Lodge.
68. On or about March 25, 1981, LEONARDO CHIQUETTE sold marijuana obtained from MANUEL SAMANIEGO to VICTORIO VASQUEZ at the Howard Johnson Motor Lodge in Denver, Colorado."
4. Petitioner William Joseph Baines.
"WILLIAM JOSEPH BAINES was a driver for and assistant to MICHAEL WHALEN [alleged to be a customer of the organization]. He purchased marijuana in Tucson, Arizona for resale in Oregon.
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83. On or about December 12, 1981, WILLIAM JOSEPH BAINES stayed at the Rodeway Inn in Tucson, Arizona.
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85. On or about December 13, 1981, WILLIAM JOSEPH BAINES rented an Oldsmobile Cutlass automobile from Payless Car Rental, Tucson, Arizona
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87. On or about December 13, 1981, WILLIAM JOSEPH BAINES and KARL F. STEFAN, JR. transported marijuana in the Oldsmobile Cutlass from Tucson, Arizona to Portland, Oregon where they delivered it to MICHAEL WHALEN."
A.R.S. § 13-2312(B), the statute upon which this count of the indictment was based, provides as follows:
"A person commits illegally conducting an enterprise if such person is employed or associated with any enterprise and conducts or participates in the conduct of such enterprise's affairs through racketeering."
"Enterprise" is defined to include "any group of persons associated in fact although not a legal entity." A.R.S. § 13-2301(D)(2). As the statute was originally enacted, "racketeering" was defined in part as:
"... any act, committed for financial gain, which is chargeable or indictable under the laws of this state and punishable by imprisonment for more than one year, regardless of whether such act is charged or indicted, involving:
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(k) Dealing in narcotic drugs or dangerous drugs." A.R.S. § 13-2301(D)(4).
In 1983, subsection (k) was amended to include marijuana. Laws 1983, Ch. 45, § 1.
These statutes were adapted from the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. In the absence of any Arizona cases, we will look to federal decisional law for guidance in construing and applying the Arizona statute. The RICO counterpart to A.R.S. § 13-2312(B) provides:
"It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U.S.C. § 1962(c).
Racketeering is similarly defined to include certain enumerated acts indictable under state or federal law. 18 U.S.C. § 1961(1).
The effect of RICO is to create a separate offense for the commission of certain crimes, which are themselves separately indictable, where those crimes are committed by an employee or associate of an enterprise in the conduct of its affairs. United States v. White, 386 F.Supp. 882 (E.D.Wis.1974). The essential elements of a substantive RICO offense which must be alleged and proved are (1) the existence of an enterprise, (2) which affects interstate or foreign commerce, (3) that the defendant was employed by or associated with the enterprise, (4) that he participated, directly or indirectly, in the conduct of the affairs of the enterprise, and (5) that he participated through a pattern of racketeering. United States v. Kopituk, 690 F.2d 1289 (11th Cir.1982). The federal statute thus imposes two requirements not present in A.R.S. § 13-2312(B). First, the enterprise must be shown to affect interstate or foreign commerce. Second, the prosecution must prove a pattern of racketeering activity, that is, commission of at least two so-called "predicate" offenses. See United States v. Welch, 656 F.2d 1039 (5th Cir.1981). Eliminating these additional requirements, we find that the essential elements of an offense under A.R.S. § 13-2312(B), which must be alleged and proved as to each defendant, are (1) the existence of an enterprise, (2) that the defendant was employed by or associated with the enterprise, (3) that he conducted or participated in the conduct of the affairs of the enterprise, and (4) that he conducted or participated in the conduct of the affairs of the enterprise through racketeering, i.e., through the commission of at least one predicate offense. 2
Turning to Count 4 of the indictment, the petitioners' arguments may be summarized as follows: (1) that the allegations pertaining to these petitioners are legally insufficient because they do not allege an act of racketeering as defined in A.R.S. § 13-2301(D)(4); (2) that even if Count 4 is sufficient on its face, there was no evidence before the state grand jury regarding the alleged acts of racketeering; (3) that the indictment is duplicitous; (4) that the state grand jury had no authority to return an indictment for violations of A.R.S. § 13-2312; (5) that Arizona had no jurisdiction over the offenses, and (6) that the prosecutor abused the grand jury process.
Analysis of the first argument requires a brief recitation of statutory history. As noted above, prior to 1983 the definition of racketeering found in § 13-2301(D)(4) did not expressly include acts involving dealing in marijuana. Accordingly, such acts could constitute predicate offenses for purposes of § 13-2312(B) only if they fell within the meaning of acts involving dealing in narcotic drugs or dangerous drugs. Since the statute does not separately define these terms, we look to the general definitions in § 13-105. Prior to September 1, 1981, § 13-105(17) defined "narcotic drugs" with reference to the definition found in § 36-1001(14). This definition includes cannabis as a narcotic drug, which was in turn defined to include marijuana. A.R.S. § 36-1001(13). At the same time, "dangerous drugs" were defined with reference to A.R.S. § 32-1901, which did not include marijuana. See A.R.S. § 13-105(6). Thus, prior to September 1, 1981, marijuana constituted a narcotic drug and marijuana offenses were therefore encompassed...
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