Do the predicate offenses merge with racketeering, in light of new merger case law?
by: Ryan • November 6, 2014 • no comments
In 2011, Rankin Johnson wrote a post on this website titled, "Oregon Racketeering and its Predicate Offenses Should Merge."
Consider this a follow-up. But first a little detour. Stick with me, it's worth it.
If I commit the crime of burglary under a theory that I intended to commit rape in the third degree, and I am also charged with attempted rape in the third degree in the same indictment, do they merge?
If you look at the statutory definition of burglary and the definition of attempted rape, then each has an element the other does not. But of course burglary is a little different. We don't just look at the definition of burglary. We look at how it is charged, and if it charged "with the intent to commit the crime of rape in the third degree therein," then the state has to prove the intent to commit rape or the defendant is entitled to an acquittal. A finding necessary for conviction would then make it an element. And if "with intent to commit the crime of rape in the third degree" is now an element, it encompasses all of the elements of attempted rape in the third degree. Ergo, merger.
This was touched on briefly in State v. Baker, which noted that burglary (based on an intent to commit theft) and theft do not merge, because each has an element the other does not.
- Here, defendant acknowledges that a count of theft would not ordinarily merge with a count of burglary because each of those crimes requires proof of an element the other does not. Specifically, to convict a person of second-degree burglary, the state must prove that the person "enter[ed] or remain[ed] unlawfully in a building with intent to commit a crime therein," ORS 164.215(1); that is not an element of first-degree theft. See ORS 164.055. The crime of first-degree theft, too, requires proof of an element--taking property of another--that burglary does not. ORS 164.015; ORS 164.055.
But the difference between the two examples, of course, is that the defendant was charged with the completed crime of theft, which isn't necessary to proving burglary, but in my hypothetical the second count only alleges the attempted crime of rape.
That said, are there any cases which support the idea that the counts would merge under the circumstances described above? I don't know, honestly. If anyone can point to any cases that say so, let me know and I'll amend this post accordingly.
For now, let's assume it does. What does this have to do with racketeering? In an effort to avoid a challenge that the indictment isn't definite and certain, indictments for racketeering usually list -- with the count of racketeering -- a number of specific and detailed predicates, which it then also charges as separate offenses. By analogy, if I'm right about merger in the burglary/attempted rape hypothetical, I don't see any logical reasons why the predicate offenses, if identical to the other charges in the indictment, would not merge into the greater offense of racketeering.
You might note that one difference -- one reason the analogy wouldn't hold -- is that the predicate offenses wouldn't merge with each other, often involving separate victims and incidents. But that would not keep them from merging with a greater offense, according to the court of appeals in State v. Fujimoto.
The case law that holds otherwise is quite old, State v. Wallock from 1991. In that case, the court found that racketeering and promoting prostitution charges did not merge because each had an element the other did not. And it appeared the court only looked at the statutory definitions. I can't tell if the racketeering counts exactly describing the promoting prostitution elements, but I don't get a sense that it would have mattered to the court.
So all in all, I think it comes down to whether the predicate offense is an element. It is necessary to proving the charge of racketeering, just as attempted rape or attempted theft is necessary to prove the charge of burglary in a case that's charged that way. If the state has charged "with the intent to commit theft," the state can't get a burglary conviction without proving attempted theft, so I don't see how attempted theft isn't an element, even if not specified in the indictment. if you have case law supporting or undermining this position, please let me know.
