McDonald v. People, 20SC354

Case DateSeptember 13, 2021
CourtSupreme Court of Colorado

2021 CO 64

Marquis DeShawn McDonald, Petitioner

The People of the State of Colorado, Respondent

No. 20SC354

Supreme Court of Colorado, En Banc

September 13, 2021

Certiorari to the Colorado Court of Appeals Case No. 17CA1096

Attorneys for Petitioner: Schelhaas Law LLC Krista A. Schelhaas Littleton, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General Brittany L. Limes, Assistant Solicitor General Denver, Colorado

Attorneys for Amici Curiae Office of Alternate Defense Counsel and Colorado Criminal Defense Bar: Wheeler Trigg O'Donnell LLP Dean Neuwirth Kristen Ferries Denver, Colorado Squire Patton Boggs (US) LLP Brent R. Owen Denver, Colorado Stinson Law Office LLC Amy L. Maas Denver, Colorado



¶1 The theft of a van and a smash-and-grab at a jewelry store. These troubling but ordinary offenses became the key ingredients a jury used to convict Marquis McDonald of violating the Colorado Organized Crime Control Act ("COCCA"), a class 2 felony for which McDonald ultimately received a sentence of ninety-six years in prison.

¶2 In challenging his conviction, McDonald has focused on COCCA's requirement that a defendant participate in an "enterprise." He asserts no enterprise existed.

¶3 As relevant here, "enterprise" means a "group of individuals, associated in fact." According to McDonald, a division of the court of appeals erred when it declined to interpret this phrase as the U.S. Supreme Court has interpreted the same phrase in the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"). More specifically, McDonald claims that an associated-in-fact enterprise under COCCA must have the structural features that the Supreme Court deems necessary under RICO.

¶4 We agree and therefore reverse the judgment of the division. We hold that COCCA requires an associated-in-fact enterprise to have (1) a minimum amount of structure-namely, a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit the associates to pursue the enterprise's purpose-and (2) an ongoing organization of associates, functioning as a continuing unit, that exists separate and apart from the pattern of racketeering activity in which it engages.

I. Facts and Procedural History

¶5 In August 2015, McDonald and at least three other men travelled from Michigan to Colorado, stole a minivan (their intended getaway vehicle), and drove it to Park Meadows Mall in Douglas County.[1] They sought to steal expensive watches from the mall's Ben Bridge Jeweler, apparently because a different group of thieves had successfully targeted the store the year before.

¶6 McDonald kicked off the ill-fated heist by entering the store and telling an employee that he was looking for a Rolex. When the employee led him to a display case, McDonald pulled a hammer from his pocket and began to smash the glass. One of McDonald's companions then entered the store with his own hammer and joined in. Together, they broke the case (damaging some watches in the process), scooped up about a dozen Rolexes, and fled. After reuniting with their lookout, they exited the mall only to find that their getaway driver and the stolen van weren't in position. The police apprehended the entire group, including the driver, near the mall.

¶7 The district attorney charged McDonald with multiple crimes: conspiracy to commit theft, §§ 18-2-201, -4-401(1)(a), -4-401(2)(i), C.R.S. (2020); theft, § 18-4-401(1)(a), (2)(i); criminal mischief, § 18-4-501(1), (4)(g), C.R.S. (2020); first degree aggravated motor vehicle theft, § 18-4-409(2)(d), (3)(a), C.R.S. (2020); and engaging in a pattern of racketeering activity in connection with an enterprise consisting of a group of individuals associated in fact, §§ 18-17-104(3), -105, C.R.S. (2020). The pattern of racketeering activity allegedly consisted of the conspiracy, thefts, and criminal mischief (essentially the property damage at the store)-and nothing else.

¶8 At trial, McDonald's counsel conceded that McDonald was guilty of conspiracy, theft, and criminal mischief but denied that he had committed motor vehicle theft or a pattern of racketeering activity in connection with an enterprise. Regarding the COCCA racketeering charge, defense counsel told the jury that "this charge was developed as a result of mafia-ism and cartels," whereas McDonald's group was "not even an organization" but rather "guys [who] got together and did something stupid."

¶9 Defense counsel tendered proposed jury instructions that pulled from U.S. Supreme Court case law defining an associated-in-fact enterprise under RICO. The tendered instructions said that an associated-in-fact enterprise "must have (1) a common purpose; and (2) an ongoing organization, either formal or informal; and (3) personnel who function as a continuing unit." The proposed instructions also provided that this type of enterprise must be "distinct from pattern of racketeering activity."

¶10 The trial court rejected those instructions. Instead, it gave the jury COCCA's definition of "enterprise," which lists several qualifying entities including the undefined phrase "group of individuals, associated in fact." See § 18-17-103(2), C.R.S. (2020).

¶11 During deliberations, the jury asked, "What is an 'enterprise' of a group of individuals 'associated in fact'?" Weighing its response, the trial court told the parties, "I know I don't have a common meaning for 'associated in fact' necessarily, nor would I expect them to, but I don't think we have any guidance." The prosecution agreed: "I'm not sure 'we don't know any better than you do' is an appropriate response, but I feel like that's where we're at at this point, Judge." In the end, the court told the jury, "The court has instructed you on all the legal definitions applicable to this matter."

¶12 The jury convicted McDonald of all five charges. Violating COCCA is a class 2 felony and carried the highest penalty of the five convictions: a prison sentence of eight to twenty-four years. See § 18-17-105(1), C.R.S. (2020); § 18-1.3-401(1)(a)(V)(A), C.R.S. (2020). McDonald, however, received a mandatory ninety-six years because his prior felony convictions triggered the four-times-the- maximum-presumptive-sentence formula from Colorado's habitual offender statute. See § 18-1.3-801(2)(a)(I)(A), C.R.S. (2020).

¶13 On appeal, McDonald argued that an associated-in-fact enterprise under COCCA requires the same structural features necessary under RICO. People v. McDonald, 2020 COA 65, ¶ 2, 490 P.3d 730, 733. So, the prosecution's evidence was insufficient to support his conviction, and the jury instructions should've included those structural requirements. Id. at ¶ 8, 490 P.3d at 734.

¶14 In a split opinion, a division of the court of appeals disagreed. It sided with another division that had rebuffed the same argument in People v. James, 40 P.3d 36, 47-48 (Colo.App. 2001). McDonald, ¶ 28, 490 P.3d at 738.

¶15 Having rejected McDonald's interpretation of COCCA, the division made quick work of his other arguments. Since COCCA doesn't require proof of the structural features necessary under RICO, the prosecution's evidence was sufficient to support his conviction. Id. at ¶¶ 34, 37-39, 490 P.3d at 739, 740. For the same reason, the trial court's instructions were accurate, and McDonald's weren't. Id. at ¶¶ 43, 45-46, 490 P.3d at 740-41. And, despite the jury's question and the trial court's own confusion, the division found no abuse of discretion in part because "nothing from the events during trial or the case law . . . would have alerted . . . the trial court that the phrase 'associated in fact' is sufficiently complicated that it required further definition." Id. at ¶ 47, 490 P.3d at 741.

¶16 In dissent, Judge Berger wrote that "we should depart from [James], and instead interpret the enterprise 'associated in fact' element of [COCCA] consistently with the United States Supreme Court's definition of the identical term in [RICO]." Id. at ¶ 54, 490 P.3d at 742 (Berger, J., dissenting). He expressed "serious doubts whether James was correctly decided." Id. at ¶ 57, 490 P.3d at 743. Further, he worried that the majority's refusal to embrace the Supreme Court's structural features would "transform 'run-of-the-mill' crimes into the much more harshly punished violations" and give jurors insufficient guidance. Id. at ¶¶ 59-60, 490 P.3d at 743. Echoing the trial court's and the prosecution's comments, he admitted, "Without further definition, I don't know what 'associated in fact' means, and I think it is presumptuous to assume that lay jurors are able to meaningfully understand and then apply that undefined term." Id. at ¶ 60. Given those and other concerns, Judge Berger would have remanded for a new trial on the COCCA charge. Id. at ¶ 65, 490 P.3d at 744.

¶17 We granted certiorari.[2]

II. Analysis

¶18 First, we interpret COCCA to determine whether associated-in-fact enterprises require the same structural features that are necessary under RICO. Then, we address whether McDonald's COCCA conviction should be vacated due to instructional error. Finally, we consider whether retrial is barred by double jeopardy concerns stemming from McDonald's sufficiency-of-the-evidence claim.

A. COCCA Associated-in-Fact Enterprises

1. Standard of Review

¶19 We review the court of appeals' interpretation of a statute de novo, and "our goal is to ascertain and give effect to the legislature's intent." People v. Vidauri, 2021 CO 25, ¶ 11, 486 P.3d 239, 242. "In doing so, we look to the entire statutory scheme in order to give consistent, harmonious, and sensible effect to all of its parts, and we apply words and phrases in accordance with their plain and ordinary meanings." UMB Bank, N.A. v. Landmark Towers Ass'n, Inc., 2017 CO 107, ¶ 22, 408 P.3d 836, 840. Because "[w]e presume that the legislature intends a just and...

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