Oregon Racketeering and its Predicate Offenses Should Merge
by: Rjohnson • October 5, 2011 • no comments
Racketeering is defined, more or less, as committing a pattern of crimes in support of an enterprise. ORS 166.715 et seq. Because the underlying crimes must be committed in order to commit racketeering, they should merge into racketeering.
Unfortunately, the Court of Appeals has held that the underlying crimes do not merge into racketeering. State v. Blossom, 88 Or App 75 (1987). Blossom reasoned that the Oregon RICO statute was based on the federal RICO statute, and federal courts have held that federal RICO convictions do not merge with the predicates. Id. at 78-79 (citing United States v. Persico, 774 F2d 30 (2nd Cir 1985); United States v. Rone, 598 F2d 564 (9th Cir 1979).
But, as the Rone court explained, under federal law, conspiracy does not merge with the underlying offense. Id at 569, citing Iannelli v. United States, 420 US 770, 781-82 (1975). By contrast, under Oregon law, conspiracy and the underlying offense do merge. ORS 161.485(3). That statute is not directly applicable, of course, but it shows that the Blossom court erred in relying on federal law to decide a question as to which federal and Oregon law are very different.
Further, Oregon merger analysis has changed substantially since Blossom was decided. See State v. White, 341 Or 624, 637 (2006) (discussing development of Oregon merger law).
So, if it comes up, argue that Blossom is wrong. In light of White, it's plausible that Blossom has already been overruled, and the trial court doesn't have to follow Blossom. Assuming the trial court doesn't buy that, the Court of Appeals may very well reconsider Blossom.
