2023 New Mexico Statutes › Chapter 30 - Criminal Offenses › Article 42 - Racketeering › Section 30-42-4 - Prohibited activities; penalties.

A. It is unlawful for a person who has received proceeds derived, directly or indirectly, from a pattern of racketeering activity in which the person has participated, to use or invest, directly or indirectly, any part of the proceeds or the proceeds derived from the investment or use in the acquisition of an interest in, or the establishment or operation of, an enterprise. Whoever violates this subsection is guilty of a second degree felony.
B. It is unlawful for a person to engage in a pattern of racketeering activity in order to acquire or maintain, directly or indirectly, an interest in or control of an enterprise. Whoever violates this subsection is guilty of a second degree felony.
C. It is unlawful for a person employed by or associated with an enterprise to conduct or participate, directly or indirectly, in the conduct of the enterprise's affairs by engaging in a pattern of racketeering activity. Whoever violates this subsection is guilty of a second degree felony.
D. It is unlawful for a person to conspire to violate the provisions of Subsections A through C of this section. Whoever violates this subsection is guilty of a third degree felony.
E. Whoever is convicted of a violation of Subsection A, B, C or D of this section in addition to the prescribed penalties shall forfeit to the state of New Mexico:
(1) any interest acquired or maintained in violation of the Racketeering Act; and
(2) any interest in, security of, claim against or property or contractual right of any kind affording a source of influence over an enterprise that the person has established, operated, controlled, conducted or participated in the conduct of in violation of the Racketeering Act.
F. The provisions of the Forfeiture Act [Chapter 31, Article 27 NMSA 1978] apply to the seizure, forfeiture and disposal of property described in Subsection E of this section.
History:
Laws 1980, ch. 40, § 4; 2002, ch. 4, § 17; 2015, ch. 152, § 20.
ANNOTATIONS
The 2015 amendment,
effective July 1, 2015, made technical amendments to the section; in Subsection A, after "unlawful for", deleted "any" and added "a", after "received", deleted "any", after "investment or use", deleted "thereof", after "acquisition of", deleted "any" and added "an", and after "operation of,", deleted "any" and added "an"; in Subsection B, after "unlawful for", deleted "any" and added "a", after "indirectly", deleted "any" and added "an", after "control of", deleted "any" and added "an"; in Subsection C, after "unlawful for", deleted "any" and added "a", after "associated with", deleted "any" and added "an"; in Subsection D, after "unlawful for", deleted "any" and added "a", and after "violate", deleted "any of"; in Subsection E, after "Whoever", deleted "violates" and added "is convicted of a violation of"; and in Paragraph (2) of Subsection E, after "influence over", deleted "any" and added "an", and after "enterprise that", deleted "he" and added "the person".
The 2002 amendment,
effective July 1, 2002, deleted former Subsection F, which pertained to jurisdiction of the district court in forfeiture actions; deleted former Subsection G, which contained procedures for the forfeiture of property subject to forfeiture and disposal under the Racketeering Act; and added present Subsection F.
Proof of enterprise.
— An enterprise is more than an individual who conducts his own affairs through a pattern of racketeering. The state must prove the existence of an enterprise by establishing a common purpose among the participants, organization and continuity.
State v. Rivera
, 2009-NMCA-132, 147 N.M. 406, 223 P.3d 951, cert. denied, 2009-NMCERT-011, 147 N.M. 463, 225 P.3d 793.
Evidence failed to establish an enterprise.
— Where defendant obtained a pool of capital from investors to buy investment properties from the Resolution Trust Corporation; defendant gave each investor a promissory note pursuant to which defendant would repay the principal with interest; the notes were prepared on documents containing either the letterhead of Building for the Future or the letterhead of Henry A. Rivera; the notes were made by Henry A. Rivera Enterprises and signed by Henry A. Rivera; the state alleged that defendant was associated with an undescribed sole proprietorship which on occasion acted in association with undescribed entities identified as "Henry A. Rivera Enterprises" and "Building for the Future" or that the sole proprietor was one of the entities identified as "Henry A. Rivera Enterprises" or "Building for the Future"; and the state provided no evidence to prove the existence of "Henry A. Rivera Enterprises" or "Building for the Future", that they constituted legal entities or a group of individuals associated with a common purpose and constituted ongoing organizations, or that they had employees, the state failed to prove the existence of an enterprise that existed independent of defendant or that defendant was employed or associated with an enterprise.
State v. Rivera
, 2009-NMCA-132, 147 N.M. 406, 223 P.3d 951, cert. denied, 2009-NMCERT-011, 147 N.M. 463, 225 P.3d 793.
Racketeering Act is not unconstitutionally vague
in proscribing clearly enumerated criminal activities which are perpetrated either through legitimate business or illegitimate business activities.
State v. Johnson
, 1986-NMCA-084, 105 N.M. 63, 728 P.2d 473, cert denied, 104 N.M. 702, 726 P.2d 856, and cert. denied, 481 U.S. 1051, 107 S. Ct. 2185, 95 L. Ed. 2d 841 (1987).
Crime of racketeering constitutes separate and distinct offense apart from enumerated predicate crimes.
Thus, a separately imposed punishment for racketeering, apart from the sentences levied for the predicate offenses, does not constitute double jeopardy.
State v. Johnson
, 1986-NMCA-084, 105 N.M. 63, 728 P.2d 473, cert denied, 104 N.M. 702, 726 P.2d 856, and cert. denied, 481 U.S. 1051, 107 S. Ct. 2185, 95 L. Ed. 2d 841 (1987).
Double jeopardy does not foreclose prosecution for predicate offenses following racketeering conviction.
— Where defendant was charged with and convicted of racketeering and conspiracy to commit racketeering for conduct spanning from 2007 to 2012 based on at least two of the predicate offenses of first-degree murder, arson, and bribery of a public officer, and where defendant was subsequently charged with the same crimes that served as the predicate offenses in the racketeering case, the district court did not err in denying defendant's claim that his right to be free from double jeopardy was violated, because the legislature intended for predicate offenses to be separate from substantive racketeering offenses and therefore double jeopardy protections do not present a bar to defendant's prosecution for the predicate offenses on which his racketeering convictions were based.
State v. Loza
, 2018-NMSC-034.
Inapplicability of 11-404(B) NMRA to charges of racketeering and conspiracy to commit racketeering.
— In defendant's trial for racketeering and conspiracy to commit racketeering, where defendant claimed that the district court improperly admitted evidence of uncharged crimes, wrongs, or other acts in violation of 11-404 NMRA, the district court did not abuse its discretion in admitting the evidence because New Mexico's racketeering statute defines violations by reference to predicate offenses which are essential components of a racketeering offense and 11-404(B) NMRA is inapplicable to evidence admitted to demonstrate predicate offenses.
State v. Loza
, 2016-NMCA-088, cert. denied.
Joinder of fraud, bribery and racketeering counts.
— The trial court did not err in denying defendant's motion to sever counts of fraud and receiving a bribe from other counts where there was no evidence the multiplicity of charges confused the jury, the multiplicity of charges were not cumulative, and the counts were predicate offenses for a racketeering charge.
State v. Armijo
, 1997-NMCA-080, 123 N.M. 690, 944 P.2d 919.
Engaging in "pattern of racketeering activity" is separate element of offense of racketeering,
distinct from the existence of the enterprise and the participation of the individual therein.
State v. Johnson
, 1986-NMCA-084, 105 N.M. 63, 728 P.2d 473, cert. denied, 104 N.M. 702, 726 P.2d 856, and cert. denied, 481 U.S. 1051, 107 S. Ct. 2185, 95 L. Ed. 2d 841 (1987).
Jury instructions to prove pattern of racketeering.
— To convict a defendant of racketeering under 30-42-4(C) NMSA 1978, the jury must find that the defendant committed at least two predicate acts, and to do so it is necessary that the jury is instructed on the essential elements of the alleged predicate acts upon which racketeering is based. State v. Catt, 2019-NMCA-013, cert. denied.
Where defendant was charged with a pattern of racketeering, involving trafficking in controlled substances, the district court did not err in vacating the racketeering convictions where the jury instructions for those counts were erroneous; the racketeering instruction failed to define the elements of each predicate offense that must be proved at trial, and the conspiracy to commit racketeering instruction omitted any elements pertaining to an enterprise or a pattern of racketeering. State v. Catt, 2019-NMCA-013, cert. denied.
"Proceeds".
— "Proceeds," as used in the Racketeering Act, includes nonmonetary proceeds.
State v. Hughes
, 1988-NMCA-108, 108 N.M. 143, 767 P.2d 382, cert. denied, 108 N.M. 115, 767 P.2d 354.
Sufficiency of indictment.
— Although a corporate defendant may be charged and convicted of the offense of racketeering, it was error to submit the racketeering charge against the corporate defendant to the jury because the corporate defendant was not specifically charged with commission of such crime in the indictment.
State v. Crews
, 1989-NMCA-088, 110 N.M. 723, 799 P.2d 592, cert. denied, 109 N.M. 232, 784 P.2d 419.
Merger with charge of conspiracy to traffic by manufacturer.
— In order for the jury to have convicted defendant of conspiracy to racketeer pursuant to the court's instruction, it was also necessary for the state to prove, and the jury to find, that she and another conspired to traffic by manufacture. Thus, the two offenses for which defendant was convicted merged under the facts and circumstances of the case.
State v. Wynne
, 1988-NMCA-106, 108 N.M. 134, 767 P.2d 373, cert. denied, 108 N.M. 115, 767 P.2d 354 (1989).
Distinct, independent proof of elements not necessary.
— Although the state must prove both the existence of an "enterprise" and a "pattern of racketeering activity," proof of these elements need not be, and often will not be, distinct and independent.
State v. Hughes
, 1988-NMCA-108, 108 N.M. 143, 767 P.2d 382, cert. denied, 108 N.M. 115, 767 P.2d 354 (1989).
Evidence held sufficient.
— Evidence was sufficient to support conviction for conspiracy to commit racketeering. The record indicates substantial evidence to support the jury's determination that defendant agreed to participate with others in an enterprise to traffic by manufacture of a controlled substance and also that there was substantial evidence indicating the existence of an "enterprise" as required under the Racketeering Act.
State v. Wynne
, 1988-NMCA-106, 108 N.M. 134, 767 P.2d 373, cert. denied, 108 N.M. 115, 767 P.2d 354.
There was sufficient proof that defendant used the nonmonetary proceeds of his act of receiving stolen property, i.e., the stolen property itself, in his methamphetamine manufacturing business.
State v. Hughes
, 1988-NMCA-108, 108 N.M. 143, 767 P.2d 382, cert. denied, 108 N.M. 115, 767 P.2d 354 (1989).
Evidence that defendant, as executive director of the Insurance Board, committed two acts of felony fraud victimizing the Insurance Authority was sufficient to support his conviction for racketeering.
State v. Armijo
, 1997-NMCA-080, 123 N.M. 690, 944 P.2d 919.
Evidence held insufficient.
— Evidence that defendant exchanged drugs for work on his house and that he advised an undercover agent that he (the undercover agent) could make money cutting cocaine he (the undercover agent) bought from defendant was insufficient to prove all the elements of racketeering.
State v. Rael
, 1999-NMCA-068, 127 N.M. 347, 981 P.2d 280, cert. denied, 127 N.M. 390, 981 P.2d 1208.
Failure to state claim of pattern of racketeering activity.
— Complaint alleging that lenders and realtors, in concert with home builder, had injured plaintiffs by representing homes as well built and performing only "windshield inspection", failed to state a claim that lenders and realtors had engaged in a pattern of racketeering activity.
Maxwell v. Wilson
, 1988-NMSC-096, 108 N.M. 65, 766 P.2d 909.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Criminal prosecutions under state RICO statutes for engaging in organized criminal activity, 89 A.L.R.5th 629.
Commencement of limitation period for criminal prosecution under Racketeer Influenced and Corrupt Organizations Act (RICO), 18 USCS §§ 1961-1968, 89 A.L.R. Fed. 887.