State v. Loza

Decision Date23 August 2018
Docket NumberNO. S-1-SC-35391,S-1-SC-35391
Citation426 P.3d 34
Parties STATE of New Mexico, Plaintiff-Appellee, v. Matias LOZA, Defendant-Appellant.
CourtNew Mexico Supreme Court

L. Helen Bennett, P.C., Linda Helen Bennett, Albuquerque, NM, for Appellant

Hector H. Balderas, Attorney General, Charles J. Gutierrez, Assistant Attorney General, Santa Fe, NM, for Appellee

VIGIL, Justice.

{1} In this case, we consider whether a defendant’s racketeering convictions foreclose a subsequent prosecution for the crimes alleged as the predicate offenses in the earlier racketeering case. Matias Loza (Defendant) was previously convicted of racketeering, contrary to NMSA 1978, Section 30-42-4 (C) (2002, amended 2015), and conspiracy to commit racketeering, contrary to Section 30-42-4(D), for conduct that he engaged in as part of a criminal enterprise referred to as the AZ Boys. State v. Loza , 2016-NMCA-088, ¶¶ 1-2, 382 P.3d 963. In support of the racketeering charges, the State alleged the underlying predicate offenses of murder, arson, and bribery of a public officer. See NMSA 1978, § 30-42-3(A)(1), (A)(9), (A)(14), (D) (2009) (defining " ‘pattern of racketeering activity’ " as "engaging in at least two incidents of racketeering," which may include murder, arson, or bribery, among other offenses). The State now seeks to prosecute Defendant for the crimes alleged as the predicate offenses in the earlier prosecution—murder, arson, and bribery—as well as other related charges. Defendant contends that the constitutional proscription against double jeopardy as set forth in the Fifth Amendment to the United States Constitution and Article II, Section 15 of the New Mexico Constitution forecloses this subsequent prosecution. We conclude otherwise and therefore affirm the district court’s denial of Defendant’s motion to dismiss.

I. BACKGROUND

{2} On November 1, 2011, officers discovered Defendant smelling strongly of gasoline and cowering under a fifth-wheel trailer. One hundred yards away, a Suzuki automobile containing the human remains of Richard Valdez was fully engulfed in flames. Shoe prints in the area were consistent with the shoes Defendant was wearing. After claiming that he had been brought to the area by a truck, which he had just escaped after being shot at by its occupants, Defendant offered one of the officers $40,000 to let him go free. Following a more extensive investigation into Defendant’s background and his reasons for being so near the murder scene, detectives ascertained that Defendant was connected with the AZ Boys gang, and gathered further intelligence from anonymous sources that Defendant had in fact served as a hitman and had killed Valdez in connection with the gang’s drug trafficking activity.

{3} The State filed a series of indictments and nolle prosequis ultimately resulting in two separate cases against Defendant. In Case No. D-1215-CR-2012-00320 (racketeering case), Defendant was charged with and convicted of racketeering and conspiracy to commit racketeering for conduct spanning from November 1, 2007, to May 15, 2012, based on at least two of the three predicate offenses of first-degree murder, arson, and bribery of a public officer. See generally NMSA 1978, §§ 30-42-1 to -6 (1980, as amended through 2015) (Racketeering Act). In Case No. D-1215-CR-2014-00063 (murder case), Defendant was charged with the same crimes that served as the predicate offenses in the racketeering case—first-degree murder, arson, and bribery of a public officer—as well as conspiracy to commit first-degree murder and two counts of tampering with evidence. In this interlocutory appeal, arising from the murder case, Defendant argues that his convictions in the racketeering case foreclose the possibility of convictions in this case because the subsequent prosecution violates his right to be free from double jeopardy.

II. STANDARD OF REVIEW

{4} This Court reviews claims involving alleged violations of a defendant’s right to be free from double jeopardy de novo. State v. Swick , 2012-NMSC-018, ¶ 10, 279 P.3d 747 ("A double jeopardy challenge is a constitutional question of law which we review de novo.").

III. DISCUSSION
A. Federal Double Jeopardy Authority in Racketeering Cases

{5} Both the United States Constitution and the New Mexico Constitution protect against double jeopardy for the same offense. U.S. Const. amend. V ("No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb."); N.M. Const. art. II, § 15 ("[N]or shall any person be twice put in jeopardy for the same offense."). The right to be free from double jeopardy protects a criminal defendant from being retried for the same offense after either acquittal or conviction (successive prosecutions) and from being punished twice for the same offense (multiple punishments). State v. Lynch , 2003-NMSC-020, ¶ 9, 134 N.M. 139, 74 P.3d 73. In a case like this, "[w]here successive prosecutions are at stake, the guarantee serves a constitutional policy of finality for the defendant’s benefit. That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, and from attempts to secure additional punishment after a prior conviction and sentence." State v. Rodriguez , 2005-NMSC-019, ¶ 6, 138 N.M. 21, 116 P.3d 92 (quoting Brown v. Ohio , 432 U.S. 161, 165-66, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ). However, "the finality guaranteed by the Double Jeopardy Clause is not absolute, but instead must accommodate the societal interest in prosecuting and convicting those who violate the law." Garrett v. United States , 471 U.S. 773, 796, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) (O’Connor, J., concurring).

{6} In addition to other elements, a successful racketeering prosecution requires proof beyond a reasonable doubt of at least two predicate offenses, which are often prosecuted in a proceeding separate from the substantive racketeering offense. 1 David R. McCormack, RICO: Racketeer Influenced Corrupt Organizations , at 6.15 (1988). As a result, double jeopardy challenges are common in racketeering cases. Seemingly without exception, however, courts have been unreceptive to these challenges. See id. at 6.16 (collecting cases). "Federal courts have uniformly held that a defendant may be convicted separately and sentenced cumulatively for engaging in [racketeering] and for committing the crimes alleged as the predicates for the [racketeering] charge." Jed S. Rakoff & Howard W. Goldstein, RICO Civil and Criminal Law and Strategy , at § 10.04[2] (1989).

{7} Although the parties agree that this case involves a successive prosecution for double jeopardy purposes, they disagree on the appropriate analysis to apply. The State contends that the United States Supreme Court’s decision in Garrett and cases interpreting it articulate the appropriate framework for analyzing the double jeopardy issue in this case. Defendant’s arguments, on the other hand, are premised on jurisprudence relevant to the analysis of multiple punishments for the same offense for purposes of double jeopardy. Specifically, Defendant argues that this Court should apply the analysis set forth in Swafford v. State , 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223 —a multiple punishment case. As this is not a multiple punishment case, Swafford is inapplicable. Recognizing the uniquely complex nature of racketeering offenses, we agree with the State that Garrett and its progeny set forth the appropriate framework for deciding double jeopardy issues under the federal constitution in the context of complex statutory schemes involving "multilayered conduct," such as the Racketeering Act.

{8} In Garrett , the Supreme Court "caution[ed] against ready transposition" of double jeopardy principles articulated in cases involving a single course of conduct to the "multilayered conduct" that comprises criminal activity in complex statutory schemes. 471 U.S. at 789, 105 S.Ct. 2407. In other words, traditional double jeopardy principles do not lend themselves well to issues arising in the context of a statutory scheme that requires proof of other violations of law through the use of various predicate offenses. See United States v. Esposito , 912 F.2d 60, 62 (3rd Cir. 1990) ("The double jeopardy issues raised in connection with prosecution for a compound predicate offense, such as racketeering under [the Racketeer Influenced and Corrupt Organizations Act] or engaging in a continuing criminal enterprise (CCE) in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970 do not fit precisely within the analytic lines used in other double jeopardy cases." (citation omitted) ). Accordingly, the Garrett Court declined to strictly apply the same-elements test articulated in Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), or the lesser-included-offense framework articulated in Brown , 432 U.S. at 167-69, 97 S.Ct. 2221, to the double jeopardy issue presented in that case. Garrett , 471 U.S. at 779, 787-90, 105 S.Ct. 2407.

{9} At issue in Garrett was whether the defendant’s earlier conviction for narcotics importation could be used as a predicate offense in a subsequent CCE prosecution without offending his right against double jeopardy. 471 U.S. at 775-77, 105 S.Ct. 2407. In considering the issue, the Supreme Court instructed:

Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature—in this case Congress—intended that each violation be a separate offense. If Congress intended that there be only one offense—that is, a defendant could be convicted under either statutory provision for a single act, but not under both—there would be no statutory authorization for a subsequent prosecution after conviction of one of the two provisions, and that would end the double jeopardy analysis.

Id. at 778, 105 S.Ct. 2407. Analyzing the language, structure, and legislative history of the ...

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