State v. Beard

Citation22 P.3d 116,135 Idaho 641
Decision Date06 April 2001
Docket NumberNo. 24867.,24867.
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Irene Alta BEARD, Defendant-Appellant.
CourtCourt of Appeals of Idaho

Neal S. Randall, Idaho Falls, for appellant.

Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

PERRY, Judge.

Irene Alta Beard appeals from her judgments of conviction entered after a jury found her guilty of racketeering and four counts of illegal collection activity. Beard also appeals from the district court's orders granting the state's motion for costs of prosecution and the state's request for the forfeiture of Beard's property. For the reasons set forth below, we affirm in part, vacate in part, and reverse in part.

II.

BACKGROUND

On June 6, 1997, Beard was charged by amended complaint in Case No. 97-612 with racketeering, I.C. § 18-7803; issuing an insufficient funds check, I.C. § 18-3106(b); intimidating a witness, I.C. § 18-2604(2); six counts of failing to register securities offered for sale, I.C. § 30-1416; three counts of illegal banking activity, I.C. § 26-1201; and ten counts of illegal collection activity, I.C. § 26-2223. On May 6, 1997, Beard filed a motion to disqualify district judge Anderson, who was presiding over the case.

On June 19, 1997, Beard was charged in Case No. 97-2343 by grand jury indictment with the identical charges plus four additional counts of grand theft, I.C. §§ 18-2403, -2407. The record reflects that district judge Anderson presided over the grand jury indictment.

On June 24, 1997, Beard also filed a motion to disqualify district judge St. Clair, who at that time was presiding over both cases.1 The state filed a motion to consolidate Case No. 97-612 and Case No. 97-2343. A hearing was held at which both motions were argued. At the conclusion of the hearing, the district court took both motions under advisement. At a subsequent hearing, the district court first denied Beard's motion to disqualify and then granted the state's motion to consolidate the two cases. At the conclusion of the hearing, the state declared its intention to dismiss Case No. 97-612.

On January 2, 1998, Beard filed a motion to quash the indictment on the ground that district judge Anderson failed to rule on the motion to disqualify filed in Case No. 97-612 before presiding over the grand jury indictment in Case No. 97-2343. The motion was denied by the district court. Beard filed a motion for reconsideration, which was also denied.

Thereafter, the indictment was amended on three separate occasions. Certain charges were dismissed and others were amended. In its final form, the indictment charged Beard with racketeering, intimidating a witness, four counts of failing to register securities offered for sale, and four counts of illegal collection activity.

Following a trial, the jury found Beard guilty of racketeering, three counts of failing to register securities offered for sale, and four counts of illegal collection activity. The jury acquitted Beard of intimidating a witness and of one count of failing to register securities offered for sale. Beard filed a motion for judgment of acquittal and a motion for new trial. The district court partially granted Beard's motion for new trial, granting a new trial as to the three counts of failing to register securities offered for sale. However, the district court denied Beard's motion for judgment of acquittal. Beard filed a motion for reconsideration, which was denied by the district court.

For racketeering, the district court sentenced Beard to a unified term of ten years, with two years fixed. For one count of illegal collection activity, the district court sentenced Beard to a unified term of three years, with two years fixed. For the other three counts of illegal collection activity, the district court sentenced Beard to unified terms of three years. The district court ordered that the sentences for illegal collection activity would run consecutive to each other and concurrent with the sentence for racketeering. Consequently, the district court sentenced Beard to an aggregate term of twelve years, with two years fixed. The district court also ordered restitution to victims in the aggregate amount of $515,878.

Based upon Beard's racketeering conviction, the district court granted the state's motion for costs of prosecution in the amount of $35,058.08 and the state's request for the forfeiture of Beard's property. Although the value of the forfeiture is difficult to ascertain from the record, it appears to be in excess of $265,000. The district court ordered that the forfeiture "shall be used first to pay restitution to the victims and second used to pay restitution of costs to the state."

Beard filed an I.C.R. 35 motion for reduction of her sentences. The district court partially granted the motion by reducing the fixed portion of Beard's sentences for racketeering and one count of illegal collection activity from two years to one and one-half years. Consequently, the district court effectively reduced Beard's aggregate sentence to twelve years, with one and one-half years fixed. Beard appeals.

II.

ANALYSIS
A. Motions to Disqualify

On appeal, Beard argues that the district court violated the mandate of I.C.R. 25(d) that upon "the filing of a motion for disqualification, the presiding judge shall be without authority to act further in such action except to grant or deny such motion for disqualification." The district court may not take any action, other than ruling on the motion to disqualify, after the motion has been filed. State v. Larios, 129 Idaho 631, 633, 931 P.2d 625, 627 (1997).

Beard contends that district judge Anderson acted without authority to preside over the grand jury indictment in Case No. 97-2343 without first ruling upon Beard's motion to disqualify in Case No. 97-612. The cases, however, were two separate and distinct actions. A motion to disqualify in one case is inapplicable to the other. Consequently, the motion to disqualify in Case No. 97-612 did not affect district judge Anderson's ability to preside over the grand jury indictment in Case No. 97-2343.

Beard also contends that district judge St. Clair was without authority to hear oral argument regarding the state's motion to consolidate without first ruling upon Beard's motion to disqualify in Case No. 97-2343. Beard asserts that "hearing the State's arguments on its motion to consolidate was tantamount to taking action" in violation of Rule 25(d). However, a district court does not "act" upon a motion for purposes of Rule 25(d) until the district court either grants or denies the motion. The district court does not "act" simply by listening to the presentation of the motion. In the instant case, the district court denied Beard's motion to disqualify before it took action to grant the state's motion to consolidate. Consequently, the district court was not without authority pursuant to Rule 25(d) to rule upon the state's motion to consolidate.

B. Racketeering

On appeal, Beard argues that the district court erred in denying Beard's motion to instruct the jury that "willfulness" is an element of the predicate acts supporting the racketeering charge. The predicate acts upon which Beard was found guilty of racketeering were three acts of security fraud, I.C. § 30-1403, and three acts of failing to register as a broker/dealer of securities. I.C. § 30-1406(1).

The question of whether the jury has been properly instructed is a question of law over which we exercise free review. State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992). When reviewing jury instructions, we ask whether the instructions as a whole, and not individually, fairly and accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct.App.1993).

Idaho Code Section 18-7803 provides that racketeering "means any [predicate] act which is chargeable or indictable under the following sections," which acts include securities fraud and failing to register as a broker/dealer of securities. (Emphasis added.). Pursuant to I.C. § 30-1443, these two predicate acts cannot be chargeable or indictable as criminal acts unless they are "willfully" committed. Thus, the district court erred in not instructing the jury that "willfulness" was an element of the predicate acts supporting the racketeering charge. The state agrees and conceded at oral argument that the jury was erroneously instructed on the racketeering charge. Therefore, Beard's judgment of conviction for racketeering must be vacated. As products of Beard's racketeering conviction, the district court's orders granting the state's motion for costs of prosecution and the state's request for the forfeiture of Beard's property must also be reversed. See I.C. § 18-7804(f), (g).

For purposes of clarification on remand, however, this Court will address Beard's argument on appeal that the state's request for forfeiture was untimely filed. Beard contends that the state failed to file its forfeiture request under I.C. § 18-7804(g) within fourteen days of the filing of the criminal indictment in violation of I.C. § 37-2804. However, we are not persuaded that the procedures in I.C. § 37-2804 apply to forfeiture requests under I.C. § 18-7804(g).

Idaho Code Section 18-7804(g) provides for the forfeiture of certain interests and property under the racketeering act. Idaho Code Section 37-2804 governs the forfeiture of certain property under the Uniform Controlled Substances Act, I.C. §§ 37-2701 to -2751. Neither statute references the other. Moreover, the language of I.C. § 37-2804 expressly provides that it applies only to the forfeiture of property by persons convicted under the Uniform Controlled Substances Act. See also I.C. § 37-2801. Accordingly, we decline to engraft the forfeiture procedures in I.C. § 37-2804 onto forfeiture requests made pursuant to I.C. § 18-7804(g)....

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