State v. Loza

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 11:23:43 2018.09.20

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMSC-034

Filing Date: August 23, 2018

Docket No. S-1-SC-35391

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

MATIAS LOZA,

Defendant-Appellant.

INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF OTERO
COUNTY
Angie K. Schneider, District Judge

L. Helen Bennett, P.C.
Linda Helen Bennett
Albuquerque, NM

for Appellant

Hector H. Balderas, Attorney General
Charles J. Gutierrez, Assistant Attorney General
Santa Fe, NM

for Appellee

OPINION

VIGIL, Justice.

{1} In this case, we consider whether a defendant’s racketeering convictions foreclose
a subsequent prosecution for the crimes alleged as the predicate offenses in the earlier
racketeering case. Matias Loza (Defendant) was previously convicted of racketeering,
contrary to NMSA 1978, Section 30-42-4 (C) (2002, amended 2015), and conspiracy to
commit racketeering, contrary to Section 30-42-4(D), for conduct that he engaged in as part
of a criminal enterprise referred to as the AZ Boys. State v. Loza, 2016-NMCA-088, ¶¶ 1-2,

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382 P.3d 963. In support of the racketeering charges, the State alleged the underlying
predicate offenses of murder, arson, and bribery of a public officer. See NMSA 1978, § 30-
42-3(A)(1), (A)(9), (A)(14), (D) (2009) (defining “‘pattern of racketeering activity’” as
“engaging in at least two incidents of racketeering,” which may include murder, arson, or
bribery, among other offenses). The State now seeks to prosecute Defendant for the crimes
alleged as the predicate offenses in the earlier prosecution—murder, arson, and bribery—as
well as other related charges. Defendant contends that the constitutional proscription against
double jeopardy as set forth in the Fifth Amendment to the United States Constitution and
Article II, Section 15 of the New Mexico Constitution forecloses this subsequent
prosecution. We conclude otherwise and therefore affirm the district court’s denial of
Defendant’s motion to dismiss.

I. BACKGROUND

{2} On November 1, 2011, officers discovered Defendant smelling strongly of gasoline
and cowering under a fifth-wheel trailer. One hundred yards away, a Suzuki automobile
containing the human remains of Richard Valdez was fully engulfed in flames. Shoe prints
in the area were consistent with the shoes Defendant was wearing. After claiming that he had
been brought to the area by a truck, which he had just escaped after being shot at by its
occupants, Defendant offered one of the officers $40,000 to let him go free. Following a
more extensive investigation into Defendant’s background and his reasons for being so near
the murder scene, detectives ascertained that Defendant was connected with the AZ Boys
gang, and gathered further intelligence from anonymous sources that Defendant had in fact
served as a hitman and had killed Valdez in connection with the gang’s drug trafficking
activity.

{3} The State filed a series of indictments and nolle prosequis ultimately resulting in two
separate cases against Defendant. In Case No. D-1215-CR-2012-00320 (racketeering case),
Defendant was charged with and convicted of racketeering and conspiracy to commit
racketeering for conduct spanning from November 1, 2007, to May 15, 2012, based on at
least two of the three predicate offenses of first-degree murder, arson, and bribery of a public
officer. See generally NMSA 1978, §§ 30-42-1 to -6 (1980, as amended through 2015)
(Racketeering Act). In Case No. D-1215-CR-2014-00063 (murder case), Defendant was
charged with the same crimes that served as the predicate offenses in the racketeering
case—first-degree murder, arson, and bribery of a public officer—as well as conspiracy to
commit first-degree murder and two counts of tampering with evidence. In this interlocutory
appeal, arising from the murder case, Defendant argues that his convictions in the
racketeering case foreclose the possibility of convictions in this case because the subsequent
prosecution violates his right to be free from double jeopardy.

II. STANDARD OF REVIEW

{4} This Court reviews claims involving alleged violations of a defendant’s right to be
free from double jeopardy de novo. State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747 (“A

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double jeopardy challenge is a constitutional question of law which we review de novo.”).

III. DISCUSSION

A. Federal Double Jeopardy Authority in Racketeering Cases

{5} Both the United States Constitution and the New Mexico Constitution protect against
double jeopardy for the same offense. U.S. Const. amend. V (“No person shall . . . be subject
for the same offense to be twice put in jeopardy of life or limb.”); N.M. Const. art. II, § 15
(“[N]or shall any person be twice put in jeopardy for the same offense.”). The right to be free
from double jeopardy protects a criminal defendant from being retried for the same offense
after either acquittal or conviction (successive prosecutions) and from being punished twice
for the same offense (multiple punishments). State v. Lynch, 2003-NMSC-020, ¶ 9, 134 N.M.
139, 74 P.3d 73. In a case like this, “[w]here successive prosecutions are at stake, the
guarantee serves a constitutional policy of finality for the defendant’s benefit. That policy
protects the accused from attempts to relitigate the facts underlying a prior acquittal, and
from attempts to secure additional punishment after a prior conviction and sentence.” State
v. Rodriguez, 2005-NMSC-019, ¶ 6, 138 N.M. 21, 116 P.3d 92 (quoting Brown v. Ohio, 432
U.S. 161, 165-66 (1977)). However, “the finality guaranteed by the Double Jeopardy Clause
is not absolute, but instead must accommodate the societal interest in prosecuting and
convicting those who violate the law.” Garrett v. United States, 471 U.S. 773, 796 (1985)
(O’Connor, J., concurring).

{6} In addition to other elements, a successful racketeering prosecution requires proof
beyond a reasonable doubt of at least two predicate offenses, which are often prosecuted in
a proceeding separate from the substantive racketeering offense. 1 David R. McCormack,
RICO: Racketeer Influenced Corrupt Organizations, at 6.15 (1988). As a result, double
jeopardy challenges are common in racketeering cases. Seemingly without exception,
however, courts have been unreceptive to these challenges. See id. at 6.16 (collecting cases).
“Federal courts have uniformly held that a defendant may be convicted separately and
sentenced cumulatively for engaging in [racketeering] and for committing the crimes alleged
as the predicates for the [racketeering] charge.” Jed S. Rakoff & Howard W. Goldstein,
RICO Civil and Criminal Law and Strategy, at § 10.04[2] (1989).

{7} Although the parties agree that this case involves a successive prosecution for double
jeopardy purposes, they disagree on the appropriate analysis to apply. The State contends
that the United States Supreme Court’s decision in Garrett and cases interpreting it articulate
the appropriate framework for analyzing the double jeopardy issue in this case. Defendant’s
arguments, on the other hand, are premised on jurisprudence relevant to the analysis of
multiple punishments for the same offense for purposes of double jeopardy. Specifically,
Defendant argues that this Court should apply the analysis set forth in Swafford v. State,
1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223—a multiple punishment case. As this is not
a multiple punishment case, Swafford is inapplicable. Recognizing the uniquely complex
nature of racketeering offenses, we agree with the State that Garrett and its progeny set forth

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the appropriate framework for deciding double jeopardy issues under the federal constitution
in the context of complex statutory schemes involving “multilayered conduct,” such as the
Racketeering Act.

{8} In Garrett, the Supreme Court “caution[ed] against ready transposition” of double
jeopardy principles articulated in cases involving a single course of conduct to the
“multilayered conduct” that comprises criminal activity in complex statutory schemes. 471
U.S. at 789. In other words, traditional double jeopardy principles do not lend themselves
well to issues arising in the context of a statutory scheme that requires proof of other
violations of law through the use of various predicate offenses. See United States v. Esposito,
912 F.2d 60, 62 (3rd Cir. 1990) (“The double jeopardy issues raised in connection with
prosecution for a compound predicate offense, such as racketeering under [the Racketeer
Influenced and Corrupt Organizations Act] or engaging in a continuing criminal enterprise
(CCE) in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970
do not fit precisely within the analytic lines used in other double jeopardy cases.” (citation
omitted)). Accordingly, the Garrett Court declined to strictly apply the same-elements test
articulated in Blockburger v. United States, 284 U.S. 299, 304 (1932), or the lesser-included-
offense framework articulated in Brown, 432 U.S. at 167-69, to the double jeopardy issue
presented in that case. Garrett, 471 U.S. at 779, 787-90.

{9} At issue in Garrett was whether the defendant’s earlier conviction for narcotics
importation could be used as a predicate offense in a subsequent CCE prosecution without
offending his right against double jeopardy. 471 U.S. at 775-77. In considering the issue, the
Supreme Court instructed:

Where the same conduct violates two statutory provisions, the first step in the
double jeopardy analysis is to determine whether the legislature—in this case
Congress—intended that each violation be a separate offense. If Congress
intended that there be only one offense—that is, a defendant could be
convicted under either statutory provision for a single act, but not under
both—there would be no statutory authorization for a subsequent prosecution
after conviction of one of the two provisions, and that would end the double
jeopardy analysis.

Id. at 778. Analyzing the language, structure, and legislative history of the Comprehensive
Drug Abuse Prevention and Control Act of 1970, the Court concluded that Congress
intended CCE to be a distinct offense, punishable in addition to, not in lieu of, any predicate
offenses. Id. at 779-86. Next, the Court examined whether CCE is the “same offense” as one
or more of its predicates for double jeopardy purposes. Id. at 786.

Quite obviously the CCE offense is not, in any commonsense or literal
meaning of the term, the “same” offense as one of the predicate offenses. The
CCE offense requires the jury to find that the defendant committed a
predicate offense, and in addition that the predicate offense was part of a

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 continuing series of predicate offenses undertaken by the defendant in
concert with five or more other persons, that the defendant occupied the
position of an organizer or manager, and that the defendant obtained
substantial income or resources from the continuing series of violations.

Id. The Court then addressed the defendant’s argument that the importation charge was a
lesser-included offense of CCE under Brown—a case holding that a prior conviction for the
lesser included offense of joyriding prohibited a subsequent prosecution for the greater
offense of auto theft. Garrett, 471 U.S. at 787-88; see also Brown, 432 U.S. at 167-69. The
Court explained that the conduct that the defendant was charged with “does not lend itself
to the simple analogy of a single course of conduct . . . comprising a lesser included
misdemeanor within a felony.” Garrett, 471 U.S. at 788. Distinguishing Brown, the Garrett
Court explained that in that case, “[e]very minute that [the defendant] drove or possessed the
stolen automobile he was simultaneously committing both the lesser included misdemeanor
and the greater felony.” Id. at 788-89. On the other hand, the defendant in Garrett was
involved in conduct that spanned a five and one-half year period. Id. at 788. Thus, lesser-
included offenses arise from the same act or transaction as the greater-included offense,
whereas a CCE and the underlying predicate offenses do not. A single course of conduct can
constitute a standalone criminal offense, which may—at some point in the future, possibly
years later—serve as a predicate offense for a CCE prosecution. See id. at 788-89. Because
of this difference between lesser-included offenses and a CCE offense, the Garrett Court
rejected the defendant’s argument that the importation charge and CCE were the “same
offense” for purposes of double jeopardy. Id. at 786-90.

{10} Although Garrett addressed double jeopardy issues raised in connection with CCE
rather than racketeering, because both crimes are structured to require proof of underlying
predicate offenses in order to prove the substantive offense, Garrett has been interpreted to
apply to double jeopardy challenges under the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. §§ 1961-68 (2012). See, e.g., United States v. Cole,
293 F.3d 153, 160-62 (4th Cir. 2002); United States v. Crosby, 20 F.3d 480, 483-87 (D.C.
Cir. 1994); United States v. Deshaw, 974 F.2d 667, 671-73 (5th Cir. 1992); United States v.
O’Connor, 953 F.2d 338, 340-41 (7th Cir. 1992); United States v. Persico, 620 F. Supp. 836,
840-46 (S.D.N.Y. 1985). See also William Jue, The Continuing Financial Crimes Enterprise
and Its Predicate Offenses: A Prosecutor’s Two Bites at the Apple, 27 Pac. L.J. 1289, 1308
(1996) (“Garrett v. United States is the leading United States Supreme Court case dealing
with the relationship between a modern compound statute such as . . . RICO . . . and its
predicates in a relevant double jeopardy context.” (footnotes omitted)). Application of
Garrett has resulted in a general consensus that a defendant can be prosecuted and sentenced
separately for committing the underlying predicate offenses as well as the racketeering
offenses themselves without offending double jeopardy rights. See Anne Bowen Poulin,
Double Jeopardy Prosecutions Against Successive Protections in Complex Criminal Cases:
A Model, 25 Conn. L. Rev. 95, 140-41 & n.205 (1992) (noting that “in no case has a court
concluded that double jeopardy forecloses separate prosecution” of compound-complex
offenses, like RICO, and their predicates, and citing cases relying on Garrett). As one

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example, in a case similar to the one presently before this Court, the Third Circuit held that
a subsequent prosecution for narcotics offenses, which had previously served as the predicate
acts for a RICO prosecution, was not barred by double jeopardy protections. Esposito, 912
F.2d at 65. The court acknowledged that the case was different from Garrett because of the
order in which the charges were prosecuted—i.e., racketeering before predicate offenses. See
Esposito, 912 F.2d at 62 (“[T]his is not a case where all the events necessary to the second
prosecution had not taken place at the time of the first prosecution.” (citing Garrett, 471 U.S.
at 798 (O’Connor, J., concurring))). Nonetheless, the dispositive inquiry was whether the
defendant had been charged with the “same offense” in both proceedings. Id. at 63. Then,
applying the Garrett framework, the court concluded relative to the first step, that the “broad
purpose behind [RICO] supports allowing two prosecutions, irrespective of the order in
which they are brought.” Esposito, 912 F.2d at 64; see also United States v. Smith, 963 F.2d
892, 893-94 (6th Cir. 1992) (holding that prosecution for narcotics charge was not barred by
double jeopardy, despite the use of the same charge as a predicate act in previous CCE case);
United States v. Lequire, 931 F.2d 1539, 1539-40 (11th Cir. 1991) (per curiam) (concluding
that prosecution for dynamiting radio towers was not barred by double jeopardy, even when
the same offense served as a predicate offense in an earlier RICO prosecution). And, relative
to the second part of the inquiry—whether the defendant was charged with the “same
offense” in both proceedings—the court analogized to conspiracies, reasoning that if
collective criminal agreements that constitute conspiracies are not the same as the
substantive offense for purposes of double jeopardy, then “the even more complex conduct
needed to support a RICO charge . . . constitutes an offense different than and separate from
that encompassed by” predicate offenses, even if those offenses are used to prove
racketeering. Esposito, 912 F.2d at 65-67.

{11} Garrett and its progeny leave no doubt that this area of law is, as the State points out,
“entirely settled against Defendant.” See Rakoff & Goldstein, supra, at § 10.04[2] (“Federal
courts have uniformly held that a defendant may be convicted separately and sentenced
cumulatively for engaging in [racketeering] and for committing the crimes alleged as the
predicates for the [racketeering] charge.”); 1 McCormack, supra, at 6.16 (“In general, the
courts have found no double jeopardy problems involved in successive federal prosecutions
for predicate offenses and RICO violations.”).

B. Application of Federal Authority to Successive Prosecutions for New Mexico
Racketeering Offenses and Underlying Predicates

{12} Under Garrett, we first consider whether the Legislature intended for offenses under
the Racketeering Act to be separate offenses from their predicates. See 471 U.S. at 778. The
Racketeering Act was modeled after RICO, the federal statute criminalizing racketeering,
and accordingly we look to federal cases interpreting RICO for guidance in interpreting our
Act. State v. Hughes, 1988-NMCA-108, ¶ 19, 108 N.M. 143, 767 P.2d 382; State v. Johnson,
1986-NMCA-084, ¶ 23, 105 N.M. 63, 728 P.2d 473. Consistent with Garrett and Esposito,
federal courts interpreting RICO have concluded that the language of the act leaves “little
doubt that Congress . . . sought to allow the separate prosecution and punishment of

6
predicate offenses and a subsequent RICO offense.” United States v. Grayson, 795 F.2d 278,
282 (3rd Cir. 1986). RICO’s definition of “pattern of racketeering,” while differing slightly,
is consistent with the way that the Racketeering Act defines the term. Compare 18 U.S.C.
§ 1961(5) (“‘[P]attern of racketeering activity’ requires at least two acts of racketeering
activity, one of which occurred after the effective date of this chapter and the last of which
occurred within ten years . . . after the commission of a prior act of racketeering activity.”),
with Section 30-42-3(D) (“‘[P]attern of racketeering activity’ means engaging in at least two
incidents of racketeering . . . 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.”). The language of the definitions suggests that a defendant could
be convicted and sentenced for a racketeering act—i.e., a predicate offense—and years later,
be charged with a racketeering offense based on that prior conviction. Grayson, 795 F.2d at
282; accord Persico, 620 F. Supp. at 841. “[N]othing in the legislative history suggests that
Congress intended RICO to be a substitute for the predicate offense.” Esposito, 912 F.2d at
63. Instead, it is clear that “Congress sought to supplement, rather than supplant, existing
crimes and penalties.” Grayson, 795 F.2d at 282; Crosby, 20 F.3d at 484; cf. Garrett, 471
U.S. at 784 (“Nowhere in the legislative history is it stated that a big-time drug operator
could be prosecuted and convicted for the separate predicate offenses as well as the CCE
offense. The absence of such a statement, however, is not surprising; given the motivation
behind the legislation and the temper of the debate, such a statement would merely have
stated the obvious.”). This intent holds true regardless of the order in which the offenses are
prosecuted.

{13} Additionally, it would be contrary to common sense and would undermine the
purpose of racketeering legislation to force the State to choose between prosecuting the
predicate offenses or pursuing a racketeering case. Cf. id. at 785 (“[I]t would be illogical for
Congress to intend that a choice be made between the predicate offenses and the CCE
offense in pursuing major drug dealers.”). Given the way that the Racketeering Act is
structured, a defendant could be prosecuted for a predicate offense long before a racketeering
case materialized. However, if at the time that the predicate offense was committed the
defendant was suspected to be involved in racketeering, the State would be forced to choose
between pursuing an immediate conviction on the predicate offense or waiting in an attempt
to catch the defendant at least one more time in order to pursue a racketeering case. See id.;
United States v. Arnoldt, 947 F.2d 1120, 1127 (4th Cir. 1991) (“When grappling with a
complex, multilayered-conduct statute such as RICO, the government must be given
reasonable discretion in setting and pursuing its strategy. . . . Without ample discretion, the
government would be forced to either proceed against a defendant for violations that might
later serve as predicate acts and foreclose a RICO prosecution in the future or allow
predicate acts to go unpunished in anticipation that at some future time the RICO elements
would coalesce.”). “Such a situation [would be] absurd and clearly not what [was] intended.”
Garrett, 471 U.S. at 786; see also Persico, 620 F. Supp. at 842 (concluding that Congress
intended to permit both successive prosecutions and cumulative punishments for RICO and
predicate offenses, in part, because a “contrary interpretation . . . would put federal
prosecutors in the untenable position . . . of having to choose between prosecuting either the

7
predicate offenses or the RICO charge”).

{14} In light of the foregoing, and because we perceive no material difference between the
purpose of RICO and that underlying the Racketeering Act, we conclude that the Legislature
intended for predicate offenses to be separate from substantive racketeering offenses. Accord
Johnson, 1986-NMCA-084, ¶ 34 (“New Mexico’s Racketeering Act . . . evinces an implicit
legislative intent that the crime of racketeering constitutes a separate and distinct offense
apart from the enumerated predicate crimes.”).

{15} Turning to the second step under Garrett, we next examine whether prosecution for
both substantive racketeering offenses and predicate offenses, in separate proceedings,
offends the right against double jeopardy. See 471 U.S. at 786. “The critical inquiry is
whether a [racketeering] offense is considered the same offense as one or more of its
predicate offenses within the meaning of the double jeopardy clause.” Grayson, 795 F.2d at
283; accord Garrett, 471 U.S. at 786 (“The critical inquiry is whether a CCE offense is
considered the ‘same offense’ as one or more of its predicate offenses within the meaning
of the Double Jeopardy Clause.”).

{16} Other courts that have analyzed this issue have noted, as the Court did in Garrett,
471 U.S. at 786, that a racketeering offense is not “in a literal sense” the same as one of its
predicates. See, e.g., Grayson, 795 F.2d at 283. Racketeering requires proof of predicate
offenses as part of a pattern of racketeering in addition to the other elements of racketeering.
See § 30-42-3(D); § 30-42-4(A)-(C). To properly examine the issue, however, “we must
examine not only the statute which [the Legislature] has enacted, but also the charges which
form the basis of the [State’s] prosecution here.” Garrett, 471 U.S. at 786. In the
racketeering case, the jury was instructed that to find Defendant guilty of racketeering, there
must be proof beyond a reasonable doubt that (1) an enterprise existed, (2) Defendant was
associated with the enterprise, (3) Defendant participated either directly or indirectly in the
conduct of the affairs of the enterprise through a pattern of racketeering activities, and (4)
Defendant engaged in at least two incidents of racketeering with the intent to commit a
prohibited activity within five years of a prior incident of racketeering. The jury was also
given separate instructions on arson, first-degree murder, and bribery of a public officer as
possible incidents of racketeering. The jury convicted Defendant of racketeering, which
means that it necessarily found, beyond a reasonable doubt, that Defendant committed at
least two predicate offenses—although we do not know which two. The charges that
Defendant presently faces include the same offenses used as predicates in the racketeering
case—first-degree murder, arson, and bribery of a public officer—as well as conspiracy to
commit first-degree murder and two counts of tampering with evidence.

{17} Defendant relies on the Blockburger test in arguing that some of the offenses in this
case constitute the same offenses as those he was prosecuted for in the racketeering case.
Specifically, Defendant asserts that “[t]here is no basis to [argue] that proof beyond a
reasonable doubt of the elements of murder, arson, and bribery in the context of a
racketeering case requires proof of a fact that would not be required in a trial for murder,

8
arson, or bribery.” In a case not involving racketeering charges, the failure to satisfy the
Blockburger test would likely be helpful to Defendant. See generally Rodriguez, 2005-
NMSC-019, ¶ 7 (explaining that the meaning of “same offense,” relative to the Fifth
Amendment protection against being held twice in jeopardy for the same offense in the
context of successive prosecutions, is determined by the Blockburger test). However, the
Blockburger test was developed “in the context of multiple punishments imposed in a single
prosecution” and “is not controlling when the legislative intent is clear.” Garrett, 471 U.S.
at 778-79. Because we have concluded that our Legislature intended predicate offenses and
racketeering offenses to be separate, we are not swayed by Defendant’s argument that this
Court should apply the Blockburger test to conclude that they are the same offense for
purposes of double jeopardy. See Esposito, 912 F.2d at 64 (concluding that Blockburger is
inapplicable because the intent of Congress to make racketeering a separate offense from its
predicate acts is clear).

{18} We also point out that the prosecutions for racketeering in the earlier case and the
charges in this case are aimed at deterring different kinds of conduct—the overall cumulative
activity of racketeering, on the one hand, and murder, arson, and bribery, on the other.
Grayson, 795 F.2d at 283; see also Esposito, 912 F.2d at 65 (analogizing to conspiracy cases
and noting that a conspiracy offense “poses distinct dangers quite apart from those of the
[completed] substantive offense” (internal quotation marks and citation omitted)). In other
words, although there may be significant overlap in the evidence presented against
Defendant in both trials, Defendant is not being prosecuted in the murder case for the same
conduct he was prosecuted for in the racketeering case. See Esposito, 912 F.2d at 67. This
fact lends further support to our conclusion that double jeopardy protections do not present
a bar to Defendant’s prosecution for murder, arson, and bribery in this case.

{19} Although Defendant contends that other jurisdictions have concluded differently than
we do here today, the cases that he cites to do not support his contention. Defendant relies
on Ex parte Chaddock, 369 S.W.3d 880 (Tex. Crim. App. 2012), which implicates lesser-
included-offense double jeopardy jurisprudence. It is well established amongst federal
courts, however, that the lesser-included framework for analyzing double jeopardy issues
does not apply to racketeering offenses. See, e.g., Garrett, 471 U.S. at 787-90; Esposito, 912
F.2d at 65-67. Defendant also cites to People v. Martin, 721 N.W.2d 815 (Mich. Ct. App.
2006), but we fail to see how it supports Defendant’s argument. If anything, Martin supports
the conclusion we reach today. In Martin, the court specifically rejected strict application
of the Blockburger test, looking instead to legislative intent to determine that keeping a
house of prostitution was a “separate offense” from racketeering for purposes of double
jeopardy. Martin, 721 N.W.2 at 825-30. In short, neither Chaddock nor Martin alter our
conclusion that predicate offenses are separate from the racketeering offenses they support.

C. Double Jeopardy Claim under the New Mexico Constitution

{20} Having concluded that there exists no double jeopardy bar under the federal
constitution, we turn now to Defendant’s argument based on New Mexico’s double jeopardy

9
provision. In support of his argument, Defendant points to the plain language of New
Mexico’s constitutional proscription against double jeopardy. The State, however, contends
that Defendant failed to adequately preserve his state constitutional argument. Before we
proceed, we first determine whether Defendant adequately preserved this issue.

{21} As the State points out, State v. Leyva, 2011-NMSC-009, 149 N.M. 435, 250 P.3d
861, clarified the requirements for preserving a state constitutional argument under State v.
Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1.

Where a state constitutional provision has previously been interpreted more
expansively than its federal counterpart, trial counsel must develop the
necessary factual base and raise the applicable constitutional provision in
trial court. Where the provision has never before been addressed under our
interstitial analysis, trial counsel additionally must argue that the state
constitutional provision should provide greater protection, and suggest
reasons as to why, for example, “a flawed federal analysis, structural
differences between state and federal government, or distinctive state
characteristics.”

Leyva, 2011-NMSC-009, ¶ 49 (emphasis omitted) (quoting Gomez, 1997-NMSC-006, ¶ 19).
Because this Court has previously interpreted New Mexico’s double jeopardy provision to
afford greater protection than the Fifth Amendment, see Lynch, 2003-NMSC-020, ¶ 13,
Defendant had only to invoke New Mexico’s double jeopardy provision in the district court
and develop an adequate record to review the issue on appeal. See Leyva, 2011-NMSC-009,
¶ 49. Our review of the record below indicates that Defendant cited to both the Fifth
Amendment to the United States Constitution and Article II, Section 15 of the New Mexico
Constitution in his motion to dismiss on double jeopardy grounds, and he also developed the
necessary factual base before the district court. Accordingly, Defendant’s argument under
the New Mexico Constitution was indeed preserved.

{22} Turning to the merits of Defendant’s claim, the first step of the interstitial approach
is to determine

whether the right being asserted is protected under the federal constitution.
If it is, then the state constitutional claim is not reached. If it is not, then the
state constitution is examined. A state court adopting this approach may
diverge from federal precedent for three reasons: a flawed federal analysis,
structural differences between state and federal government, or distinctive
state characteristics.

Gomez, 1997-NMSC-006, ¶ 19 (citations omitted). Having concluded that Defendant is not
protected by the Fifth Amendment from the subsequent prosecution in this case, we proceed
to consider Defendant’s claim under the New Mexico Constitution. See id.

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{23} Citing to cases in which this Court has diverged from the federal interpretation of
double jeopardy guarantees, Defendant argues that “the intent of the drafters of the New
Mexico [C]onstitution was to provide greater protections than” are afforded under the federal
analysis. We agree with Defendant that, in certain contexts, defendants are afforded more
protection under New Mexico’s double jeopardy provision. See Lynch, 2003-NMSC-020,
¶¶ 11, 15-20 (holding that prosecution for first-degree murder following reversal of second-
degree murder did not violate federal double jeopardy clause but did violate New Mexico’s
double jeopardy provision); State v. Nunez, 2000-NMSC-013, ¶¶ 16-18, 129 N.M. 63, 2 P.3d
264 (departing from federal precedent based on distinctive state characteristics and
interpreting New Mexico’s double jeopardy clause to prohibit separate criminal and civil
forfeiture actions for the same offense); State v. Breit, 1996-NMSC-067, ¶¶ 32-36, 122 N.M.
655, 930 P.2d 792 (adopting a standard different from that employed by the federal courts
to determine when retrial is barred in the context of improper official conduct based on the
Court’s conclusion that the New Mexico double jeopardy provision affords more protection).
However, Defendant offers no basis under the interstitial approach that would justify our
departure from federal precedent in the context of racketeering cases, particularly when we
have followed federal interpretations of RICO thus far. See, e.g., State v. Rivera, 2009-
NMCA-132, ¶¶ 11-12, 147 N.M. 406, 223 P.3d 951; State v. Armijo, 1997-NMCA-080, ¶¶
13-15, 123 N.M. 690, 944 P.2d 919; Hughes, 1988-NMCA-108, ¶¶ 18-35; State v. Wynne,
1988-NMCA-106, ¶¶ 7-8, 108 N.M. 134, 767 P.2d 373; Johnson, 1986-NMCA-084, ¶¶ 23-
34.

{24} With respect to Defendant’s argument based on the plain language of Article II,
Section 15, we are similarly unpersuaded. In relevant part, Article II, Section 15 provides:

No person . . . shall . . . be twice put in jeopardy for the same offense; and
when the indictment, information or affidavit upon which any person is
convicted charges different offenses or different degrees of the same offense
and a new trial is granted the accused, he may not again be tried for an
offense or degree of the offense greater than the one of which he was
convicted.

Defendant contends that the plain language of the foregoing constitutional provision confers
upon him a “right not to be retried in a subsequent trial for an offense greater than
racketeering or conspiracy to commit racketeering.” Defendant’s argument ignores
context—it fails to acknowledge that the language of the provision specifically contemplates
a situation in which a defendant is convicted of an offense, and thereafter, “a new trial is
granted.” Id. That is not what occurred here. This is not a situation where Defendant’s
convictions in a previous case were reversed, and we are now tasked with determining what
options the State has in charging Defendant on retrial. Rather, the State now seeks to
prosecute Defendant for the standalone criminal offenses which formed the basis of the
racketeering conviction. This subsequent prosecution is separate and apart from the crime
of racketeering and is not, as Defendant contends, “a new trial” for the same offense. Thus,
contrary to Defendant’s assertion, the plain language of Article II, Section 15 does not

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support a different result.

D. Joinder

{25} After reviewing Defendant’s application for interlocutory appeal, this Court issued
an order, sua sponte, requesting that the State file a response to Defendant’s application
addressing the potential implications of joinder under Rule 5-203(A) NMRA in this case. See
State v. Arrendondo, 2012-NMSC-013, ¶ 20, 278 P.3d 517 (“Although as a general rule
propositions of law not raised in the trial court should not be raised sua sponte by the
appellate court, there are exceptions.”). The State complied with the Court’s request,
addressing joinder in its response to Defendant’s application and in its answer brief.
Defendant did not address joinder in his brief in chief and he did not file a reply brief.
Because Defendant declined to pursue the issue as a potential basis for relief, we do not
consider it here. See State v. Johnson, 2010-NMSC-016, ¶ 62, 148 N.M. 50, 229 P.3d 523
(concluding that the defendant abandoned issues “by failing to discuss them in his brief”);
State v. Ferguson, 1990-NMCA-117, ¶ 24, 111 N.M. 191, 803 P.2d 676 (“Courts should not
take it upon themselves to raise, argue, and decide legal issues overlooked by the lawyers.”).

IV. CONCLUSION

{26} The prohibition against double jeopardy, as guaranteed by both the United States and
New Mexico constitutions, does not bar the State from prosecuting Defendant for the
predicate offenses on which his racketeering convictions were based. The district court’s
order denying Defendant’s motion to dismiss is therefore affirmed, and we remand this case
for further proceedings consistent with this opinion.

{27} IT IS SO ORDERED.

____________________________________
BARBARA J. VIGIL, Justice

WE CONCUR:

____________________________________
JUDITH K. NAKAMURA, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
GARY L. CLINGMAN, Justice

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