Writ large, double jeopardy precludes multiple prosecutions for the same conduct, providing a haven from state (and federal) overreach …except when it doesn’t… The Supreme Court’s recent opinion in State v. Loza illustrates how a charge of racketeering acts as an an exception to the protection of double jeopardy. The Court considered, “whether a defendant’s racketeering convictions foreclose a subsequent prosecution for the crimes alleged as the predicate offenses in the earlier racketeering case.”
The facts of this case are lurid. Police officers found Mr. Loza a hundred yards away from a car engulfed in flames and which contained the smoking remains of one Richard Valdez. That Mr. Loza was found crouched beneath a fifth-wheel trailer, smelling strongly of gasoline, did him no favors. It helped him even less that, upon being approached by officers, he “offered one of the officers $40,000 to let him go free.” In 2012, he was charged with and convicted of racketeering, “based on at least two of the three predicate offenses of first-degree murder, arson, and bribery of a public officer.”
The State brought a second case against Mr. Loza in 2014, following his conviction for racketeering. In this case, he was charged with first-degree murder, arson, and bribery of a public officer. The astute reader will note that these are the same as the predicate offenses listed in his racketeering prosecution. Mr. Loza brought an interlocutory appeal on the grounds that his prior conviction foreclosed his subsequent prosecution for the predicate offenses, under a double-jeopardy theory.
The Court firmly disagreed. While double jeopardy protects defendants against successive prosecutions and multiple punishments for the same crime, the Court, citing a concurrence in Garrett v. United States, noted “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.” In other words, double jeopardy is a protected right…except when it’s not.
Courts have struggled to square ongoing criminal enterprises, like racketeering, with double jeopardy protections, for the simple reason that racketeering doesn’t fit neatly into a unitary conduct box. Under the NM Rackateering Act (NMSA 1978, § 30-42-1 through -6), racketeering “means any act that is chargeable or indictable under the laws of New Mexico and punishable by imprisonment for more than one year, involving any” of twenty-five criminal offenses. As the Court in Loza notes, “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.”
To resolve that inherent conflict, the Court again looked to Garrret v. United States and its progeny, which address how double jeopardy applies to ongoing criminal enterprises. Garrett doesn’t involve racketeering; rather it involves an analogous issue as to whether a prior narcotics conviction could be used as predicate offense for a subsequent prosecution under the Comprehensive Drug Abuse Prevention and Control Act of 1970. The Supreme Court looked first at legislative intent; that is, “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.” The Supreme Court concluded the Congress intended the charged violation, CCE, or continuing criminal enterprise, as an offense district from its predicate offenses. The Court then looked at whether CCE could be considered the same offense as its predicate, concluding that it couldn’t.
The New Mexico Supreme Court applied that reasoning here, finding that double jeopardy did not apply to racketeering offenses. As New Mexico’s racketeering statute mimics the federal statute almost perfectly, the Court relied on how federal courts have interpreted the legislative intent of RICO. In Grayson, the Third Circuit clarified that the act’s language “leaves little doubt that Congress… sought to allow the separate prosecution and punishment of predicate offenses and a subsequent RICO offense.” Esposito went one step further, stating “nothing in the legislative history suggests that Congress intended RICO to be a substitute for the predicate offense.”
Moving on to the next step of the Garrett analysis, the Court examined whether a double prosecution in this case would violate double jeopardy. Essentially, the Court asked whether the racketeering charge could be considered the same offense as one or more of the predicate offenses. Here the Court decided they were not the same offense, as the conduct involved in racketeering is significantly different than the conduct involved in murder or any of the predicate offenses. One can commit murder without committing racketeering. Similarly, one can engage in racketeering without committing murder. The Court therefore concluded that Mr. Loza could be prosecuted for the underlying offenses and racketeering based on those same offenses.
The Court’s logic is appealing in its clarity. It answers with swift succinctness the question of how racketeering actions are exceptions to double jeopardy. However, the sterile language of the opinion fails to address whether it should work like this. When it comes to a person like Mr. Loza, a literal hitman for a crime syndicate, this result seems correct… even circumspect in its application. However, the breadth of the NM Rackateering Act is staggering; predicate offenses include not only murder, arson, and bribery, but also fraud, several drug offenses, and larceny. The latter three are crimes often committed less by criminal masterminds, and more by the chronically disenfranchised. This breadth could disproportionately affect non-violent, even vulnerable criminals, like those who are deemed criminal by virtue of their substance abuse. Further, the analysis is largely based on interpretation of legislative history. This should concern you. After all, “first they came for the socialists,” right? Is double jeopardy ultimately so fragile that it can be undone by the stroke of a legislator’s pen ? Food for thought, folks.