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State v. Stout

Supreme Court of Oregon

April 19, 2018

STATE OF OREGON, Petitioner on Review,
v.
PATRICK EUGENE STOUT, Respondent on Review.

          Argued and submitted June 14, 2017.

          On review from the Court of Appeals CC 1101350CR; CA A157453. [*]

          Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and fled the briefs for the petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Kyle Krohn, Deputy Public Defender, Salem, argued the cause and fled the brief for the respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender, Offce of Public Defense Services.

          Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Flynn, Duncan, and Nelson, Justices. [**]

         [362 Or. 759] Case Summary: Defendant was indicted for conspiring or endeavoring to participate in an "enterprise through a pattern of racketeering activity" under Oregon's Racketeer Influenced and Corrupt Organization Act ("ORICO"), ORS 166.715 to 166.735. Under ORS 166.720(6), an indictment that contains "an allegation of a pattern of racketeering activity" must provide certain specific details about the racketeering activity. Defendant's indictment did not comply with ORS 166.720(6), but the trial court construed the pleading requirement of ORS 166.720(6) to apply only to charges of a completed "pattern of racketeering activity, " not to charges based on conspiring or endeavoring to participate in an enterprise through a "pattern of racketeering." The Court of Appeals disagreed and reversed defendant's conviction. Held: (1) ORS 166.720(6) does not distinguish between completed and future patterns of racketeering activity, and defendant's conspiracy indictment contained an allegation that, on its face, constituted an "allegation of a pattern of racketeering activity"; (2) the textual clues identified by the state were not a strong basis on which to rest a conclusion that the legislature intended to exclude "conspire or endeavor" ORICO indictments from the requirements of ORS 166.720(6); (3) the legislative history of ORS 166.720(6) showed an intent to address ORICO pleading broadly, but did not show any intent to exclude conspiracy indictments; and (4) applying ORS 166.720(6) would not impair the state's ability to prove ORICO conspiracies.

         The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to that court for further proceedings.

         [362 Or. 760] FLYNN, J.

         This case requires us to construe a pleading requirement that is unique to indictments charging a violation of the Oregon's Racketeer Influenced and Corrupt Organization Act (ORICO), ORS 166.715 to 166.735. ORICO prohibits various forms of involvement with a "pattern of racketeering activity, " including conspiring or endeavoring to participate in an "enterprise through a pattern of racketeering activity." ORS 166.720(3) and (4). The legislature has specified that, when an indictment charging an ORICO violation contains "an allegation of a pattern of racketeering activity, " the indictment must include certain specific details regarding "each incident" of racketeering that makes up the alleged pattern. ORS 166.720(6).

         The indictment at issue in this case charged defendant with "conspir[ing] and/or endeavor[ing]" to participate in an "enterprise through a pattern of racketeering activity consisting of theft." The parties agree that the indictment is insufficient under the standard set by ORS 166.720(6)-if it applies-but disagree about whether the indictment contains "an allegation of a pattern of racketeering activity" within the meaning of ORS 166.720(6). The Court of Appeals held that ORS 166.720(6) applies to the indictment and, because the indictment did not include the details that the statute requires, that the trial court erred in refusing to grant defendant's demurrer to the indictment. The state challenges that decision, contending that "an allegation of a pattern of racketeering activity, " as used in ORS 166.720(6), refers to a charge based on incidents of racketeering activity that have actually occurred and not to a charge of conspiring or endeavoring to make that the activity occur, as alleged here. We allowed review to consider that question and now conclude that the Court of Appeals was correct. Accordingly, we affirm.[1]

         [362 Or. 761] I. BACKGROUND

         Before describing the pertinent facts, which are entirely procedural, we begin with a brief overview of the legal framework into which those facts fit.

         A. Indictment Requirements, Generally

         Both the Oregon Constitution and Oregon statutes address the requirements for an indictment. The constitution guarantees to every person accused of a crime the right to "demand the nature and cause of the accusation against him[.]" Or. Const, Art I, § 11. More specific requirements for the contents of an indictment are set out in various Oregon statutes, including ORS 132.550, which provides in pertinent part:

"The indictment shall contain substantially the following:
"(7) A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended[.]"

         Under those general standards, an indictment ordinarily is sufficient if it "tracks the pertinent wording of the statute defining the crime." State v. Fair, 326 Or. 485, 490, 953 P.2d 383 (1998).

         B. A "Pattern of Racketeering Activity"

         As we have previously explained, ORICO was modeled on and closely parallels the federal Racketeer Influenced and Corrupt Organizations Act statute, under which violations turn "on the multiplicity of crimes and the 'organized character' of those crimes, which together suggested that some form of organization was behind their commission." State v. Walker, 356 Or. 4, 18-19, 23 n 9, 333 P.3d 316 (2014). Through the ORICO statutes, the 1981 legislature made it unlawful to engage in a broad variety of conduct including, as pertinent to this case, participating in an "enterprise through a pattern of racketeering activity, " or conspiring or [362 Or. 762] endeavoring to do so. Or. Laws 1981, ch 769, §§ 3, 4; ORS 166.720(3), (4).[2]

         To understand the issue that this case presents, it is important to understand the concept of a "pattern of racketeering activity, " so we turn to the various definitions that illuminate that concept.

         "Racketeering activity" is any one of an identified list of crimes, often called "predicate offenses" or "predicate acts." The term is defined in part as follows:

"'Racketeering activity' *** means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce or intimidate another person to commit:
"(a) Any conduct that constitutes a crime, as denned in ORS 161.515, under any of the following provisions of the Oregon Revised Statutes:
"(K) ORS 164.015, 164.043, 164.045, 164.055, 164.057, 164.075 to 164.095, 164.098, 164.125, 164.135, 164.140, 164.215, 164.225 and 164.245 to 164.270, relating to theft, burglary, criminal trespass and related offenses [.]"

ORS 166.715(6)(a)(K).

         If there are multiple incidents of "racketeering activity, " then those incidents may form a "pattern of racketeering activity." A "pattern of racketeering activity" means engaging in at least two incidents (predicate offenses) that are "interrelated by distinguishing characteristics, including a nexus to the same enterprise." ORS 166.715(4). In addition, to constitute a "pattern, " the racketeering offenses must not [362 Or. 763] be isolated incidents, and at least two of the offenses must occur within five years of each other. Id. [3]

         In 1997, the legislature added the ORICO-specific pleading requirement that is at issue in this case. Or. Laws 1997, ch 789, § 2. That pleading requirement, now codified at ORS 166.720(6), applies to an ORICO indictment that contains an "allegation of a pattern of racketeering activity." It requires the state to plead specific details about the incidents that make up the alleged "pattern of racketeering activity, " including a "statement of the acts constituting each incident of racketeering activity in ordinary and concise language, " a statement of the date or period of time for each incident, a statement "designating which distinguishing characteristic or characteristics interrelate the incidents of racketeering activity, " and a "statement that the incidents alleged were not isolated." ORS 166.720(6).

         C. Procedural Facts

         Defendant, along with codefendant Holloway and three others, was originally indicted on 22 counts. Twenty-one of the 22 counts alleged that the defendants had committed crimes of theft and criminal mischief against multiple victims over the course of a year. The remaining count alleged a violation of ORICO in the language of ORS 166.720(3), with a description of the individual, completed incidents of which the "pattern of racketeering activity" consisted. Each of the incidents was identified with particularity as to date range, ...


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