As used in the Racketeering Act:
A. "racketeering" means any act that is chargeable or indictable under the laws of New Mexico and punishable by imprisonment for more than one year, involving any of the following cited offenses:
(1) murder, as provided in Section 30-2-1 NMSA 1978;
(2) robbery, as provided in Section 30-16-2 NMSA 1978;
(3) kidnapping, as provided in Section 30-4-1 NMSA 1978;
(4) forgery, as provided in Section 30-16-10 NMSA 1978;
(5) larceny, as provided in Section 30-16-1 NMSA 1978;
(6) fraud, as provided in Section 30-16-6 NMSA 1978;
(7) embezzlement, as provided in Section 30-16-8 NMSA 1978;
(8) receiving stolen property, as provided in Section 30-16-11 NMSA 1978;
(9) bribery, as provided in Sections 30-24-1 through 30-24-3.1 NMSA 1978;
(10) gambling, as provided in Sections 30-19-3, 30-19-13 and 30-19-15 NMSA 1978;
(11) illegal kickbacks, as provided in Sections 30-41-1 and 30-41-2 NMSA 1978;
(12) extortion, as provided in Section 30-16-9 NMSA 1978;
(13) trafficking in controlled substances, as provided in Section 30-31-20 NMSA 1978;
(14) arson and aggravated arson, as provided in Subsection A of Section 30-17-5 and Section 30-17-6 NMSA 1978;
(15) promoting prostitution, as provided in Section 30-9-4 NMSA 1978;
(16) criminal solicitation, as provided in Section 30-28-3 NMSA 1978;
(17) fraudulent securities practices, as provided in the New Mexico Securities Act of 1986 [New Mexico Uniform Securities Act, Chapter 58, Article 13C NMSA 1978];
(18) loan sharking, as provided in Sections 30-43-1 through 30-43-5 NMSA 1978;
(19) distribution of controlled substances or controlled substance analogues, as provided in Sections 30-31-21 and 30-31-22 NMSA 1978;
(20) a violation of the provisions of Section 30-51-4 NMSA 1978;
(21) unlawful taking of a vehicle or motor vehicle, as provided in Section 30-16D-1 NMSA 1978;
(22) embezzlement of a vehicle or motor vehicle, as provided in Section 30-16D-2 NMSA 1978;
(23) fraudulently obtaining a vehicle or motor vehicle, as provided in Section 30-16D-3 NMSA 1978;
(24) receiving or transferring stolen vehicles or motor vehicles, as provided in Section 30-16D-4 NMSA 1978; and
(25) altering or changing the serial number, engine number, decal or other numbers or marks of a vehicle or motor vehicle, as provided in Section 30-16D-6 NMSA 1978;
B. "person" means an individual or entity capable of holding a legal or beneficial interest in property;
C. "enterprise" means a sole proprietorship, partnership, corporation, business, labor union, association or other legal entity or a group of individuals associated in fact although not a legal entity and includes illicit as well as licit entities; and
D. "pattern of racketeering activity" means engaging in at least two incidents of racketeering with the intent of accomplishing any of the prohibited activities set forth in Subsections A through D of Section 30-42-4 NMSA 1978; provided at least one of the incidents occurred after February 28, 1980 and the last incident occurred within five years after the commission of a prior incident of racketeering.
History: Laws 1980, ch. 40, § 3; 1988, ch. 14, § 4; 1998, ch. 113, § 6; 2009, ch. 253, § 7; 2009, ch. 261, § 7.
Compiler's notes. — Laws 2009, ch. 82, § 703 repealed the New Mexico Securities Act of 1986, referenced in Subsection A(17), effective January 1, 2010.
The 2009 amendment, effective July 1, 2009, in Paragraph (9) of Subsection A, changed "Section 30-24-3 NMSA 1978" to "Section 30-24-3.1 NMSA 1978" and added Paragraphs (21) through (25) of Subsection A.
Laws 2009, ch. 253, § 7 enacted identical amendments to this section. The section was set out as amended by Laws 2009, ch. 261, § 7. See 12-1-8 NMSA 1978.
The 1998 amendment, effective July 1, 1998, substituted "that" for "which" in Subsection A; added Paragraph A(20); substituted "means an" for "includes any" near the beginning of Subsection B; substituted "incident" for "which" near the end of Subsection D; and made minor stylistic changes throughout the section.
The 1988 amendment, effective July 1, 1988, substituted "the New Mexico Securities Act of 1986" for "Sections 58-13-39 and 58-13-40 NMSA 1978; and" in Subsection A(17), made a minor stylistic change in Subsection A(18), and added Subsection A(19).
Intent to perform only predicate acts. — The legislature intended the Racketeering Act to have a broad application, so that it covers situations in which a group of individuals associate only to perform predicate criminal acts. State v. Hughes, 1988-NMCA-108, 108 N.M. 143, 767 P.2d 382, cert. denied, 108 N.M. 115, 767 P.2d 354.
Intent requirement. — With respect to the intent requirement, the definition of a "pattern of racketeering activity" is hardly a model of clarity. Where the requested finding and the adopted finding both concern only the intent to commit those acts of fraud that could constitute predicate offenses for a pattern of racketeering activity, such intent is not enough to establish a racketeering claim. The intent component of the definition of "pattern of racketeering activity" would be useless if it encompassed nothing more than the intent necessary to commit each of the two incidents of racketeering required by definition. Naranjo v. Paull, 1990-NMCA-111, 111 N.M. 165, 803 P.2d 254.
"Enterprise". — An "enterprise" as used in the racketeering statute may exist when there is no association above and beyond the acts which form the pattern of racketeering activity. State v. Wynne, 1988-NMCA-106, 108 N.M. 134, 767 P.2d 373, cert. denied, 108 N.M. 115, 767 P.2d 354.
The factors to be considered in determining the existence of an enterprise include the identity of the individuals involved, their knowledge of the relevant activities, the amount of planning required to carry out the predicate acts, the frequency of the acts, the time span between each act, and the existence of an identifiable structure within the association or entity. State v. Hughes, 1988-NMCA-108, 108 N.M. 143, 767 P.2d 382, cert. denied, 108 N.M. 115, 767 P.2d 354.
Governmental agencies may be considered "enterprises" for the purposes of the Racketeering Act. State v. Armijo, 1997-NMCA-080, 123 N.M. 690, 944 P.2d 919.
"Association" necessary for "enterprise". — While proof of an association is essential to establishing the elements of an enterprise, the purpose of the association may be as simple as earning money from repeated illegal acts. State v. Hughes, 1988-NMCA-108, 108 N.M. 143, 767 P.2d 382, cert. denied, 108 N.M. 115, 767 P.2d 354.
Failure to state two underlying activities. — Complaint alleging racketeering activity was properly dismissed where plaintiffs conceded that dismissed defendants had not committed fraud, and where plaintiffs failed to state two activities underlying their claim as required by Subsection D. Maxwell v. Wilson, 1988-NMSC-096, 108 N.M. 65, 766 P.2d 909.
Distinct, independent proof of elements not necessary. — Although the state must prove both the existence of an "enterprise" and a "pattern of racketeering activity," proof of these elements need not be, and often will not be, distinct and independent. State v. Hughes, 1988-NMCA-108, 108 N.M. 143, 767 P.2d 382, cert. denied, 108 N.M. 115, 767 P.2d 354.
Effect of acquittal on some predicate charges. — Petit jury verdicts of guilty on each fraud count returned by them against defendants constituted a basis to uphold the racketeering verdicts and provided assurance that the jury found defendants guilty of at least two of the predicate acts of fraud as charged in the indictment. Simply because defendants were acquitted of some charges and others were dismissed does not require the racketeering charges to be set aside where the jury returned guilty verdicts on other predicate counts. State v. Crews, 1989-NMCA-088, 110 N.M. 723, 799 P.2d 592, cert. denied, 109 N.M. 232, 784 P.2d 419.
Law reviews. — For note, "Criminal Procedure — New Mexico Denies Fifth Amendment Protection to Corporations: John Doe and Five Unnamed Corporations v. State ex rel. Governor's Organized Crime Prevention Commission," see 23 N.M. L. Rev. 315 (1993).