State v. Nunez
| Decision Date | 26 July 1999 |
| Docket Number | No. 23652.,23652. |
| Citation | 133 Idaho 13,981 P.2d 738 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Juan R. NUNEZ, Jr., Defendant-Appellant. |
| Court | Idaho Supreme Court |
Andrew Parnes, Ketchum, for appellant.
Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
Juan Nunez was employed as a police officer and agent of the Tri-County Drug Task Force when the offices of the Tri-County Drug Task Force were the target of a burglary in February 1995. As a result of the burglary, a full accounting of the evidence lockers was made which revealed missing and unaccounted for drugs and money. Nunez and another officer of the drug task force, Donald L. Walden, were indicted in May of 1996. Nunez was arraigned four days later and he pled not guilty to all counts charged in the indictment.
Count I of the indictment charged Nunez with racketeering in violation of I.C. § 18-7804(c) through a pattern of racketeering consisting of forty separate acts of theft which occurred between 1990 and 1995, by committing the burglary of the Tri-County and Magic Valley Drug Task Force offices on or about January 30, 1995, and in the presentation of fraudulent accounts. Count II charged Nunez with the misuse of public money, which money was either missing and unaccounted for or used for unauthorized purpose. Counts III and IV charged Walden and Nunez respectively with falsifying public records as police officers. Four additional counts charged Nunez with separate sales tax violations, and the final count charged Nunez with conspiracy to destroy, alter, or conceal evidence, alleging the burglary of the drug task force offices as one of two, specified overt acts committed in furtherance of the conspiracy. The indictment was twice amended before trial.
Nunez' case, which was severed from the case against his co-defendant Walden, proceeded to trial on October 8, 1996. A jury returned a verdict of guilty on the charges of racketeering, misuse of public money, four sales tax violations and conspiracy to alter or destroy evidence. Nunez was acquitted on the charge of falsifying records. According to the special verdict form, the jury unanimously found that Nunez was guilty of more than two predicate acts constituting a pattern of racketeering, identified in the second amended indictment as seven individual thefts of various drugs, paraphernalia and money being held by the Task Forces.
Nunez filed a post-trial motion for acquittal on November 5, 1996, and a motion for mistrial or for a new trial on December 16, 1996. The district court denied the motions on January 2, 1997. Sentencing took place on January 13, 1997, and an amended judgment of conviction was entered, from which Nunez appealed. Nunez then filed an I.C.R. 35 motion, which was denied in part and granted in part, reducing the fixed portion of his sentence by six months on the misuse of funds charge. Nunez filed an amended notice of appeal.
I. ISSUES PRESENTED ON APPEAL
Nunez asserts the following on appeal:
1. With respect to Count I of the indictment, did the state charge a proper racketeering "enterprise" under I.C. § 18-7803 and was the jury correctly instructed on the definition of conducting an enterprise?
2. With respect to Count II of the indictment, did the trial court err in failing to instruct the jury that it must unanimously agree on the acts which constituted a violation of the misuse of public monies under I.C. § 18-5701?
3. Were the one-year sentences on the sales tax violations in Counts IV through VII illegal in that the indictment and the instructions referred to misdemeanor offenses?
4. Was the evidence sufficient to convict on three of the sales tax violations?
5. Was Nunez' sentence as a felony on Count VIII, conspiracy to commit a misdemeanor, an illegal sentence where Nunez was charged with and convicted of a misdemeanor?
6. Was the evidence sufficient to support the guilty verdict on Count VIII?
7. Did the district court abuse its discretion in denying Nunez' motion for a continuance?
8. Was Nunez deprived of the effective assistance of trial counsel when counsel failed to request severance of the sales tax violations?
9. Was Nunez deprived of the effective assistance of trial counsel when counsel in his direct examination of Nunez "opened the door" to cross-examination on instances of prior, unrelated misconduct as a police officer?
10. Does I.C. § 18-301, which was repealed after the crimes in this case had been committed require reversal of the conviction and sentence on Count II (misuse of public monies) which was based on acts identical to those underlying the conviction on Count I (racketeering)?
11. Did cumulative errors by trial counsel render his performance ineffective under the federal and state constitutions, mandating reversal of the convictions?
Nunez argues that the racketeering count was not properly charged and that the flaw in the indictment was repeated in the jury instruction on the racketeering charge, such that his conviction and sentence on the racketeering charge should be reversed. Nunez asserts that he and his co-defendant should have been charged as "individuals operating the illegal enterprise" rather than as persons employed by the drug task forces who, as members of those enterprises, engaged in a pattern of racketeering activity. In effect, he argues that the "enterprises" cannot be both the instrument through which the racketeering was conducted and the victim of the racketeering.
The indictment charged Nunez with being employed by or associated with the enterprises, defined as the Task Forces, and engaging in a pattern of racketeering activity. The charge to the jury on the racketeering count, Instruction No. 26, required proof beyond a reasonable doubt that Nunez was employed by or associated with the enterprises and that he participated, either directly or indirectly, in the affairs of the enterprise through a pattern of racketeering activity. The instruction evidently was intended to comport with the provisions of I.C. § 18-7804 detailing the activities punishable under Idaho's Racketeering Act,1 whose content and structure parallel those of its federal counterpart, RICO.2
As used in the Act, the term "enterprise" encompasses any sole proprietorship, partnership, corporation, business, labor union, association or other legal entity or any group of individuals associated in fact although not a legal entity, and includes illicit as well as licit entities. I.C. § 18-7803(c). "A pattern of racketeering activities" means engaging in at least two predicate acts of racketeering conduct, which are interrelated by distinguishing characteristics and are not isolated incidents, within five years of each other, one of which must have occurred after the effective date of the Act. I.C. § 18-7803(d). The instructions to the jury included these concepts.
Subsection (c) of Idaho Code § 18-7804, like 18 U.S.C. § 1962(c), makes it "unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of the affairs of such enterprise by engaging in a pattern of racketeering activity." Interpreting the meaning of the federal racketeering statute, the United States Supreme Court distinguished the term "enterprise" used in subsections (a) and (b) from the "enterprise" in subsection (c). The Court held:
National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 259, 114 S.Ct. 798, 804, 127 L.Ed.2d 99 (1994). The Court has also held that "to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs," one must have some part in directing those affairs. Reves v. Ernst & Young, 507 U.S. 170, 179, 113 S.Ct. 1163, 1170, 122 L.Ed.2d 525, 536 (1993). "In sum . . . one must participate in the operation or management of the enterprise itself." Id. at 185, 113 S.Ct. at 1173, 122 L.Ed.2d at 540.
Subsection (c) defines the relationship as "more than merely some connection or even a 'substantial nexus' between a lawful enterprise and the prohibited pattern of racketeering." United States v. Webster, 639 F.2d 174, 185 (4th Cir.), cert. denied sub nom, Christian v. United States, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981), modified in part, 669 F.2d 185 (4th Cir.1982). According to several federal circuit courts, a defendant working for a legitimate enterprise, who commits racketeering acts while on the business premises does not establish that the affairs of the enterprise have been conducted "through a pattern of racketeering activity." United States v. Jannotti, 729 F.2d 213, 226 (3d Cir.1984), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984); United States v. Cauble, 706 F.2d 1322, 1332 (5th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984); United States v. Webster, supra. The predicate acts must have been committed in the conduct of the enterprise's affairs. United States v. Field, 432 F.Supp. 55, 58 (S.D.N.Y.1977). Accord, United States v. Swiderski, 593 F.2d 1246 (D.C.Cir.1978), cert. denied sub nom, McGowan v. United States, 441 U.S. 933, 99 S.Ct. 2055, 60 L.Ed.2d 662 (1979); United States v. Dennis, 458 F.Supp. 197 (E.D.Mo. 1978); United States v. Scalzitti, 408 F.Supp. 1014 (W.D.Pa.1975).
Instead, the government must show that a person "is enabled to commit the predicate offenses...
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