and submitted June 14, 2017.
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.
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
Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Flynn,
Duncan, and Nelson, Justices. [**]
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.
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.
Or. 760] FLYNN, J.
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
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.
Or. 761] I. BACKGROUND
describing the pertinent facts, which are entirely
procedural, we begin with a brief overview of the legal
framework into which those facts fit.
Indictment Requirements, Generally
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
"The indictment shall contain substantially the
"(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[.]"
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).
A "Pattern of Racketeering Activity"
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),
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.
activity" is any one of an identified list of crimes,
often called "predicate offenses" or
"predicate acts." The term is defined in part as
"'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 [.]"
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.
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).
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, ...