State v. Charlesworth

• Decision Date: 22 October 1997
• Citation: 151 Or.App. 100,951 P.2d 153
• Parties: STATE of Oregon, Appellant, v. Brian CHARLESWORTH, Respondent. STATE of Oregon, Appellant-Cross-Respondent, v. Robert L. PARKS, Respondent-Cross-Appellant. 93-08-35550; 93-08-35551, CA A83960 (Control); CA A83961.
• Court: Oregon Court of Appeals

Page 153

951 P.2d 153

151 Or.App. 100

STATE of Oregon, Appellant, v. Brian CHARLESWORTH, Respondent.

STATE of Oregon, Appellant-Cross-Respondent, v. Robert L. PARKS, Respondent-Cross-Appellant.

93-08-35550; 93-08-35551, CA A83960 (Control); CA A83961.

Court of Appeals of Oregon.

Argued and Submitted April 22, 1996.

Decided Oct. 22, 1997.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant in CA A83960 and appellant--cross-respondent in CA A83961. With him on the briefs were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, Janet A. Klapstein, Assistant Attorney General, and David E. Leith, Assistant Attorney General.

Marc Sussman, Portland, argued the cause and filed the brief for respondent Brian Charlesworth.

W. Mark McKnight, Portland, filed the cross-appeal for respondent-cross-appellant Robert L. Parks.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

ARMSTRONG, Judge.

Defendants Charlesworth and Parks were indicted for racketeering, conspiracy to commit racketeering, delivery of controlled substances, and conspiracy to deliver controlled substances. ¹ The state appeals various pretrial orders in favor of defendants. Charlesworth cross-assigns error to orders in favor of the state.

The indictment against defendants arose out of an investigation that began in 1989 into drug-trafficking activities by Charlesworth. As a result of that investigation, a federal grand jury indicted Charlesworth in December 1992 for money laundering in violation of 18 U.S.C. § 1956. The federal indictment charged Charlesworth with seven counts of money laundering by using in certain transactions funds that he knew were the proceeds of unlawful drug trafficking. Charlesworth pleaded guilty to those counts pursuant to a plea agreement. A federal court sentenced him to 92 months' imprisonment on the counts.

On April 21, 1993, police searched Parks' home in Riverside County, California, pursuant to a search warrant. They also searched his car after obtaining his consent to do that. In the search of the car, the police found and searched a briefcase that contained two address books and other documents. Those documents were used to obtain additional search warrants.

On August 30, 1993, a Multnomah County grand jury returned a 14-count indictment against defendants. Counts 1 through 10 in the indictment alleged charges against Charlesworth and Parks. The indictment charged Charlesworth with four counts of racketeering in violation of the Oregon Racketeer Influenced and Corrupt Organizations Act (ORICO), ORS 166.720(2), 166.720(3); four counts of conspiracy to commit racketeering, ORS 161.450, 166.720(3), 166.720(4); one count of delivery of a controlled substance, ORS 475.992; and one count of conspiracy to deliver a controlled substance, ORS 161.450, 475.992. The indictment charged Parks with one count of racketeering, ORS 166.720(3), and one count of conspiracy to commit racketeering, ORS 161.450, 166.720(4).

Defendants filed a number of pretrial challenges to the indictment and the evidence. They demurred to the racketeering and conspiracy to commit racketeering counts on the ground that those counts failed to state crimes. ² The trial court sustained the demurrer on that ground and dismissed the indictment. The court dismissed the indictment against Charlesworth on the further ground that the Oregon constitutional guarantee against double jeopardy barred the state from prosecuting him for offenses arising from the conduct that had led to his federal money-laundering convictions. In addition, Charlesworth moved to suppress evidence obtained from a file that his lawyer had kept in the course of representing him. The trial court denied that motion. Finally, Parks moved to suppress evidence obtained from the search of his briefcase. The trial court granted that motion.

The state first assigns error to the court's order sustaining defendants' demurrer to counts 1 through 8 of the indictment. We review a trial court's ruling on a demurrer challenging the validity of an indictment for legal error. ORS 138.220.

Count 1 of the indictment charged defendants with racketeering under ORS 166.720(3). ³ To allege a crime under that statute, the state had to allege, inter alia, that defendants had engaged in a pattern of racketeering activity. To establish the required pattern, count 1 alleged that defendants had engaged in conduct constituting 23 criminal offenses, 14 of which involved money laundering by Charlesworth.

ORS 166.715(6)(b) incorporates into the definition of racketeering activity "any conduct defined as 'racketeering activity' under 18 USC § 1961(1)(B), (C) and (D)." The current definition of racketeering activity in 18 U.S.C. § 1961(1)(B) includes as covered activity money laundering in violation of 18 U.S.C. § 1956. It is that provision on which the state based its allegation that Charlesworth's money-laundering activities constituted racketeering activity in violation of ORS 166.715(6)(b).

Defendants demurred to the 14 paragraphs in count 1 of the indictment that contain the money-laundering allegations. When ORS 166.715 was enacted in 1981, ⁴ money laundering was not included in the definition of racketeering activity in 18 U.S.C. § 1961. That is because money laundering in violation of 18 U.S.C. § 1956 was not added to the definition of racketeering activity until 1986. ⁵ Defendants argued that ORS 166.715(6)(b) incorporates only the version of 18 U.S.C. § 1961(1)(B) that existed at its enactment. Because money laundering was not included in 18 U.S.C. § 1961(1)(B) at that time, the references to money laundering in the indictment did not state a crime.

The state argued in response that the reference in ORS 166.715(6)(b) to 18 U.S.C. § 1961 should be interpreted as a reference to the current version of the statute. The trial court disagreed. It held that ORS 166.715(6)(b) incorporates only the 1981 version of 18 U.S.C. § 1961(1)(B). Accordingly, the court struck the 14 paragraphs in the indictment that referred to money laundering and sustained the demurrer to count 1. Additionally, the court struck counts 2 through 8 of the indictment because those counts referred to the stricken allegations from count 1, which made the former counts indefinite and uncertain after count 1 was stricken. ORS 135.630(6).

On appeal, the state contends that the trial court erred in its construction of ORS 166.715(6)(b) and therefore erred in striking the money-laundering allegations from the indictment. Alternatively, the state argues that, even if the court did not err in construing the statute, it erred in dismissing the balance of the indictment.

We first consider whether the reference to 18 U.S.C. § 1961(1)(B) in ORS 166.715(6)(b) makes money laundering in violation of 18 U.S.C. § 1956 a racketeering activity under Oregon law. The state treats the issue as one that turns on whether the legislature intended the reference to 18 U.S.C. § 1961(1)(B) to refer to a specific statute or to a general body of law. The Supreme Court explained the distinction and its apparent significance in Seale v. McKennon, 215 Or. 562, 572, 336 P.2d 340 (1959):

"When a statute adopts by specific reference the provisions of another statute, * * * such provisions are incorporated in the form in which they exist at the time of the reference, and not as subsequently modified; whereas, where the reference is general, such as a reference to a system or body of laws or to the general law relating to the subject in hand, the referring statute takes the law or laws not only in their contemporary form but also as they may be changed from time to time."

(Citations omitted.)

The problem with the state's formulation of the issue is that it fails to deal with the prohibition in the Oregon Constitution against the delegation of legislative power to others. If, as the state contends, ORS 166.715(6)(b) is intended to incorporate changes to 18 U.S.C. § 1961 as Congress makes those changes, then the statute violates that prohibition. ⁶ Hence, if the state's interpretation is correct, the statute is unconstitutional.

We conclude that the state's interpretation is not correct. Nothing in the statute or its legislative history resolves whether the legislature intended ORS 166.715(6)(b) to incorporate post-enactment changes to 18 U.S.C. § 1961. We are to construe statutes to be constitutional, if that can be done. That readily can be done here if ORS 174.060 does not prevent us from construing ORS 166.715(6)(b) to incorporate only the version of 18 U.S.C. § 1961 that existed at its enactment.

ORS 174.060 provides:

"When one statute refers to another, either by general or by specific reference or designation, the reference shall extend to and include, in addition to the statute to which reference was made, amendments thereto and statutes enacted expressly in lieu thereof unless a contrary intent is expressed specifically or unless the amendment to, or statute enacted in lieu of, the statute referred to is substantially different in the nature of its essential provisions from what the statute to which reference was made when the statute making the reference was enacted."

(Emphasis supplied.) If ORS 174.060 applies, it requires us to construe ORS 166.715(6)(b) to violate the Oregon Constitution. We conclude, however, that ORS 174.060 does not apply to the interpretation of statutes that refer to non-Oregon law. If ORS 174.060 were to apply to statutory references to non-Oregon law, it would mean that ORS 174.060 is itself unconstitutional because it, too, would run afoul of the Oregon constitutional prohibition against the delegation of legislative power. Neither the text of ORS 174.060, in context, nor its legislative history requires such a construction, however, so we construe ORS 174.060 to apply only to references to Oregon statutes. Based on that construction, we construe ORS 166.715(6)(b...