Oregon Appellate Ct - June 4, 2014

Latest revision as of 12:35, June 17, 2014

Racketeering - Identities of Unnamed Members of an Enterprise Not Required

The identities of unnamed members of an enterprise are not required for a charge of racketeering under ORS 166.720(3). In this case, the indictment alleged that the defendant was “associated with an enterprise;” specified the enterprise as “Jemm Corporation;” and named four individuals as members of the enterprise. It also, however, referenced unnamed “others” involved in the enterprise. The court held that the reference in the indictment to unnamed “others” did not constitute a material element of the charge of racketeering. Further, while assuming without deciding that the reference to the unnamed others made the indictment impermissibly vague, the court concluded that discovery in this case was sufficient to cure any such imprecision in the indictment. Also, in another assignment of error, the court held that, for a white collar crime such as racketeering, empaneling an anonymous jury did not constitute plain error, because there was no plain risk that the jury’s deliberations would be affected if they perceived the defendant to be dangerous as a result of their anonymity. State v. Kelly, 263 Or App ___ (2014).

Dependency - Jurisdiction May Not Be Based on the Contested Admissions of the Other Parent

Juvenile courts “cannot assert jurisdiction over a child based on the admissions of one parent when the other parent [properly] contests the allegations in the petition.” The court is required to conduct a contested hearing. Here, the juvenile court made findings of fact based on the mother’s statements that the father was physically violent towards the mother and that the father failed to protect the children from the mother. Reversed and remanded. Dept. of Human Services v. W. A. C., 263 Or App ___ (2014).

A private search becomes a state action when an involved officer understands what is being proposed, knows he couldn't do it himself and offers support, encouragement or the modification of official procedure

A private search represents a state action, for the purpose of protection from unreasonable search and seizures when: 1. a state official has, or should reasonably have, a clear understanding of the proposed conduct; 2. the conduct would be illegal if carried out by a state official, and 3. the official offers support, encouragement, or modifies procedural norms in support of this conduct. Here, a housekeeper contacted DHS officers about suspicions of child abuse and offered to take evidence from the home and give it to the officer. The officer noted that he could not tell her to do this but offered to have the evidence tested and also delayed a procedural safety check in the hope that the evidence would be procured. The officer had a clear understanding of what the housekeeper was proposing, he knew that it would be illegal if he did it, he offered support and modified normal procedure in order to allow the housekeeper to do it. Thus, there was state action and all seized evidence must be suppressed. State v. Sines, 263 Or App ___ (2014).