People v. Chaussee

Citation880 P.2d 749
Decision Date12 September 1994
Docket NumberNo. 92SC609,92SC609
PartiesRICO Bus.Disp.Guide 8654 The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Calvin L. CHAUSSEE II, Respondent/Cross-Petitioner, and Claude Ray Page, Respondent.
CourtSupreme Court of Colorado

John W. Suthers, Dist. Atty., Fourth Judicial Dist., and Lovice D. Riffe, Deputy Dist. Atty., Colorado Springs, for petitioner/cross-respondent.

Vaglica & Carlson and Phillip A. Vaglica, Colorado Springs, for respondent/cross-petitioner.

No appearance for respondent Claude Ray Page.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari to review the decision of the Colorado Court of Appeals in People v. Chaussee, 847 P.2d 156 (Colo.App.1992). The defendants, Calvin L. Chaussee II and Claude Ray Page, were charged with criminal conspiracy and illegal use of an enterprise in violation of the Colorado Organized Crime Control Act ("COCCA" or the "Act") as well as theft, conspiracy to commit theft, forgery, and tampering with physical evidence. 1 Chaussee was also charged individually with several counts of first degree perjury. After a preliminary hearing, the trial court found that probable cause existed to support all charges except violations of COCCA and first degree perjury. As to the perjury charges, the court found that probable cause had been established for second degree perjury, rather than perjury in the first degree, and held Chaussee for trial on the reduced charges. The prosecution appealed the dismissal of the COCCA charges and the reduction of the perjury charges. 2 The court of appeals reversed the trial court's dismissal of charges against the defendants for violation of COCCA and remanded with directions to reinstate those COCCA charges not having perjury as a predicate. Chaussee, 847 P.2d at 162. In addition, the court of appeals reversed the trial court's ruling that false answers to interrogatories pursuant to civil discovery amount only to perjury in the second degree. It remanded with directions to reinstate the perjury in the first degree charges against Chaussee. Id. The prosecution agreed with the reinstatement of the charges but sought certiorari to review the court of appeals' construction of COCCA. Chaussee cross-petitioned for review of the reinstatement of the COCCA and first degree perjury charges. We granted the petition and cross petition and now reverse the judgment of the court of appeals on the construction of COCCA but affirm on reinstatement of the COCCA and first degree perjury charges, and remand the case with directions.


In February 1986, Colorado Springs Future Communications, Inc. (the "corporation") commenced the business of marketing dealerships and selling assorted electronic devices. 3 The corporation was owned or controlled, or both owned and controlled, by Chaussee, while Page managed the dealership sales. The dealerships were marketed by mail and over the telephone. According to representations made by the corporation, persons who purchased the dealerships were to sell phased-array television antennae to the public. The antennae were to be obtained by the corporation and supplied to the dealers. Hundreds of individuals purchased the dealerships at a cost of $1500.00 per dealership. 4 According to representations made by the corporation, these sums were to be placed in an escrow account and a portion repaid to the new dealers with each antenna sold.

Contrary to the corporation's representations, the funds were not kept in escrow. Chaussee took one third of each dealership deposit, and the rest was used by Page to pay himself and to cover the expenses of running the corporation. Moreover, although Chaussee was negotiating with several research and development companies for the development of a phased-array television antenna throughout the period in which the dealerships were being sold, the corporation never possessed any phased-array antennae and it was unclear that it would ever obtain such antennae.

Chaussee structured and operated the corporation in such a way as to avoid accountability to those who purchased the dealerships. He divided the corporation into a service section and a sales section and kept communication between the two sections to a minimum. By dividing the corporation into two sections, Chaussee hoped to promote confusion so that a dealer requesting a refund would not know whom to contact, and the two sections could blame each other for the inability to obtain a refund for that dealer. The sales staff was insulated from the numerous telephone complaints from dealers requesting either the product or refunds of their deposits. Chaussee hired other employees to answer these calls so that the sales staff would not be aware of the high volume or the substance of the complaints.

From the outset of sales activities, in an effort to discourage litigation, Chaussee directed Page and his staff not to sell dealerships to Colorado residents. Chaussee believed that out-of-state residents would be unwilling to pursue a civil lawsuit in Colorado for the $1500.00 cost of a dealership because of the logistical difficulties and the expense involved in litigating a case.

The El Paso County district attorney's office began receiving hundreds of complaints from dealers about the corporation, and began investigating the corporation in August 1986. During the course of that investigation, Page told an investigator for the district attorney's office that the corporation had 10,000 of the phased-array antennae in a Canadian warehouse and that it had contracted with a research scientist to produce such antennae. In fact, no such contract existed, and the Canadian company had not even completed its own research and development of such a product. In March 1987, the corporation stopped selling dealerships and all activity in the corporate account ceased. Later that same month, corporate telephones were disconnected and mail refused.

On April 6, 1987, the district attorney filed a civil action against the corporation under the Colorado Consumer Protection Act, §§ 6-1-101 to -115, 2 C.R.S. (1988), seeking various remedies, including a permanent injunction and restitution. During the course of discovery, the district attorney served Chaussee with two sets of interrogatories. Chaussee signed and attested his responses to the interrogatories and returned them to the district attorney. As of the time the petition for certiorari was filed in the present case, no hearing had been held on this civil case, and the case was still pending.

On April 2, 1990, the district attorney filed an information in the El Paso County District Court, charging Chaussee and Page with fourteen counts of criminal conspiracy, illegal use of an enterprise, conspiracy to commit theft, theft, forgery, perjury, and tampering with physical evidence. 5 Counts one and two of the information pertained to the activities conducted by the defendants through the corporation and alleged that those activities violated section 18-17-104(3) and (4), 8B C.R.S. (1986), of COCCA. Counts eight, twelve, and fourteen charged Chaussee with first degree perjury for his responses to the interrogatories sent to him in connection with the consumer protection suit.

At the preliminary hearing, numerous witnesses testified to and were cross-examined on the nature of the dealership business and on the defendants' conduct with respect to the operation of the corporation. The trial court later issued its ruling from the bench.

In the course of its ruling, the trial court analyzed counts one and two, the COCCA claims. The court stated its intention to be guided by federal law in the absence of controlling state law because the language of the Act and the federal Racketeer Influenced and Corrupt Organizations Act was so similar. See Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. §§ 1961-1968 (1988 & 1993 Supp.) ("RICO"). The trial court found no probable cause to support the two COCCA claims. The court essentially determined that the alleged scheme to defraud individuals was a single episode that could not be carved into different parts to make up the predicate acts necessary to establish a pattern of racketeering activity in violation of the Act.

The trial court also addressed counts eight, twelve, and fourteen, the first degree perjury charges against Chaussee. The court determined that first degree perjury pertains to oral testimony given under oath in a formal proceeding--such as testimony at trial or before a grand jury. Because here the three perjury counts were based on verification of written answers to interrogatories rather than testimony in a formal judicial proceeding, the court held that the charges must be reduced to second degree perjury, a class one misdemeanor. 6 The district attorney appealed to the court of appeals from the trial court's rulings dismissing the two COCCA charges and reducing the three first degree perjury charges against Chaussee to second degree perjury.

The court of appeals reversed the trial court's rulings on both the COCCA and the perjury counts and remanded the case with directions to reinstate the COCCA charges against both defendants and to reinstate the perjury in the first degree charges against Chaussee. Relying on federal case law, the court of appeals determined that proof of a pattern of racketeering activity, as required by COCCA, requires at least two related racketeering predicates that either repeat over a "closed" period of time or threaten, explicitly or implicitly, the likelihood of continued racketeering activity projecting into the future. Chaussee, 847 P.2d at 159. Because evidence in the record reflected multiple related fraudulent acts "perpetrated upon multiple individuals which threatened to repeat indefinitely," id. at 160, the court of appeals determined that there was probable cause to support the COCCA claims.

The court of appeals also held that the...

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