State v. Bradshaw

THORNE, Judge

(dissenting): ©

1] 35 I respectfully dissent. First, although I agree that the racketeering charge presents a close question, I disagree with the majority's conclusion. In short, the State's evidence-when all reasonable inferences are drawn in the State's favor-establishes sufficient probable ecause to support the charge at this stage of the proceeding. Similarly, when the communications fraud charges are analyzed with the proper deference, and in light of the statute's plain language, this court should conclude that the trial court acted properly in denying Bradshaw's motion to quash. ~

I. Racketeering

T 36 The majority opinion decides that the trial court erred in denying Bradshaw's motion to quash the racketeering charge. However, that decision grants neither the trial court, nor the State, the deference to which it is entitled in this setting."

*37237 Using a truncated standard of review, the majority opinion concludes that the State failed to establish either the existence of, or Bradshaw's investment in, an enterprise.2 The majority opinion's approach fails to draw all of the reasonable inferences from the evidence in the State's favor.3 However, before the evidence and inferences can be properly examined, I concede that we must identify what is meant by "enterprise" and determine what evidence satisfies the investment requirement. Accordingly, I follow the majority opinion's lead and "look to ... federal case law for guidance on th{is] issue{ ]." Buzas Baseball, Inc. v. Salt Lake Trappers, Inc., 925 P.2d 941, 947 n. 5 (Utah 1996).

138 Under federal case law, a section 1962(a) "enterprise"

may very well be a "profit seeking" entity that represents a property interest and may be acquired. But the statutory language ... does not mandate that the enterprise be a "profit-seeking" entity; it simply requires that the enterprise be an entity that was acquired through illegal *373activity or the money generated from illegal activity.

National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 259, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994)4 Additionally, courts have not required prosecutors to plead the facts supporting a racketeering indictment in detail. See United States v. Habicht, 766 F.Supp. 22, 26 (D.Mass.1991) ("There is simply no case law to support the defendants' contention ° that a RICO indictment must plead facts in extraordinary detail."); Agurite Corp. v. Am-ster & Co., 730 F.Supp. 571, 577 (S.D.N.Y. 1990) (stating that, aside from the fraud itself, the elements of a RICO charge need not be pleaded with particularity). And, in fact, while "three elements are necessary to prove the existence of an enterprise[,]" these elements "are not necessary to plead a cause of action under the RICO statute." Federal Ins. Co. v. Ayers, T4l F.Supp. 1179, 1183 (E.D.Pa.1990). Nor is there any requirement that the person and the enterprise be separate or distinct.5 See Riverwoods Chappa-gua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 345 (2d Cir.1994) (stating "there is no requirement under section 1962(a) (as opposed to section 1962(c)) that the 'person' be distinct from the 'enterprise' "); Banks v. Wolk, 918 F.2d 418, 421 (8d Cir.1990) (same); Official Publ'ns, Inc. v. Kable News Co., 884 F.2d 664, 668 (7th Cir.1989) (same); Yellow Bus Lines v. Drivers, Chauffeurs & Helpers Local Union 689, 888 F.2d 132, 140 (D.C.Cir. 1989) (same).

T39 Consequently, for purposes of interpreting Utah Code section 76-10-16083(1), there is nothing that requires the defendant and the enterprise to be distinct. Nor does the statute require that a section 76-10-1603(1) charge be pleaded with any particularity. Instead, the statute only requires that the State's evidence reasonably suggest (for purposes of bindover) the existence of an enterprise, regardless of its composition.

1 40 Similarly,

[slection 1962(a) does not exact rigorous proof of the exact course of income derived from a pattern of racketeering activity into its ultimate "use or investment." The key operative terms of the section, as specifically charged here, are expansive, not restrictive ones: "use or invest," "any part," "income ... or ... proceeds," "directly or indirectly," "establishment or operation." In combination these broad, disjunctively-phrased terms negate any requirement that the tainted income must be specifically and directly traced in proof from its original illegal receipt to its ultimately proscribed "use or investment" by the defendant.

United States v. Vogt, 910 F.2d 1184, 1194 (4th Cir.1990) (citations omitted). Moreover, federal courts have also determined that savings realized as a result of racketeering activity satisfy the income requirement. See Azurite Corp., 780 F.Supp. at 578 ("The Court eannot find that savings, which are the direct result of fraudulent or otherwise illegal activity, are not income.").

141 Therefore, to plead a section 76-10-1603(1) violation adequately, the State is not required to produce evidence of direct investment, nor even evidence directly showing the investment of money in an enterprise. Rather, the State must merely produce evidence, again for the specific purpose of bindover, from which a reasonable inference could be drawn that the racketeering activity enabled the defendant to use the proceeds to further his interest in an enterprise.

{ 42 Here, the stipulated facts demonstrate that Bradshaw engaged in a pattern of un-lawfal activity from which he realized income. The stipulation further showed that Bradshaw used the funds for his own purposes. *374From this information, it takes little effort to draw the reasonable inference that Bradshaw was able to save funds derived from legitimate activity and that he could then invest those saved funds. Moreover, the stipulation can also be reasonably interpreted to suggest that Bradshaw himself was the enterprise and that through this enterprise he was able to collect sensitive information concerning people's financial circumstances, needs, and desires, thus satisfying the enterprise related requirements of section 76-10-1608(1).

143 Finally, the majority opinion states that "[clourts have universally rejected such efforts 'to dress a garden-variety fraud and deceit case in RICO clothing.'" (Quoting Condict v. Condict, 826 F.2d 928, 929 (10th Cir.1987).) The majority opinion further seems to suggest that courts must take great care to ensure that only proper defendants are subject to prosecution under Utah's Pattern of Unlawful Activity Act (UPUAA). I decline to subscribe to either of these assertions.

44 First, Bradshaw's victims would likely not characterize his crimes as "garden-variety," nor would they likely be offended by the racketeering charge.6 - Furthermore, from the evidence before us, it is clear that Bradshaw's crimes required not only a great deal of forethought, planning, and execution on his part, but that in selecting his victims he had access to a great deal of sensitive financial information that should not have been available to him. Moreover, contrary to the majority opinion's desire to describe this and similar situations as "garden-variety fraud and deceit," communications fraud and racketeering may well occur hand-in-glove. See, eg., Russello v. United States, 464 U.S. 16, 17-18, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (reviewing the defendant's convictions for mail fraud and racketeering); Umited States v. Turkette, 452 U.S. 576, 578-81, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) (reviewing convictions of racketeering, mail fraud, and "various [other] substantive criminal acts").

1 45 In light of Bradshaw's admissions, the majority opinion's analysis is problematic. Although it is possible that a jury might have concluded that the evidence was insufficient to convict Bradshaw of "racketeering," there is nothing in the record that suggests his crimes amounted to nothing more than "garden-variety" fraud. - Rather, Bradshaw's crimes evince the image of a profligate conman, bent on victimizing a large number of susceptible people through the application of a common method, and then using the proceeds to finance his further endeavors.

4] 46 Second, the majority opinion's concern for potential misuse of racketeering charges, while understandable, finds little support in either the United States Supreme Court, or in the federal courts of appeal. As succeinetly stated by the Supreme Court: " 'The occasion for Congress' action was the perceived need to combat organized erime. But Congress for cogent reasons chose to enact a more general statute, one which, although it had organized crime as its focus, was not limited in application to organized crime." National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 260, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) (citation omitted). " ' "The fact that RICO has been applied in situations not expressly anticipated by Congress ... demonstrates breadth."'" Id. at 262, 114 S.Ct. 798 (citations omitted). Or, as the First Cireuit Court of Appeals stated, " 'Congress has instructed us to construe RICO "liberally ... to effectuate its remedial purposes."'" United States v. Commolly, 341 F.3d 16, 28 (Ist Cir.2003) (citations omitted); see also United States v. Cauble, 706 F.2d 1322, 1830 (5th Cir.1988) ("RICO's application and effectiveness have been enhanced by the judicial *375consensus that it may be used even though no organized crime activity is charged[.]"). Consequently, rather than policing the State's decision to charge a defendant with racketeering to avoid its possible thermonuclear effects, our role is more properly limited to determining solely whether the State met its burden; ie:, is the information and evidence sufficient to support bindover?

147 Here, Bradshaw concedes that he engaged in a pattern of unlawful activity. He also admits to having realized proceeds from the pattern. Thus, the only question left is whether the State presented sufficient information to show, for the purpose of bindover, an enterprise and the use of unlawful proceeds to the benefit of the enterprise.7

148 The State presented evidence that Bradshaw had engaged in a pattern of unlawful activities through which he defrauded a number of people, over a wide geographic range, of an aggregate amount over $5,000. The State's evidence is subject to a reasonable inference that Bradshaw had access to, or was provided with, sensitive information concerning the victims' finances, as well as their perceived or actual need for money. The evidence can also be reasonably interpreted to support an inference that Bradshaw used the proceeds to fund his existence, his lifestyle, and his ongoing efforts to defraud additional victims. This evidence, and all reasonable inferences that can be made from it, demonstrate that probable cause existed to believe that Bradshaw's activities amounted to racketeering8 See Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 389, 345 (2d Cir.1994) (stating "there is no requirement under section 1962(a) (as opposed to section 1962(c)) that the 'person' be distinct from the 'enterprise' "); Official Publ'ns., Inc. v. Kable News Co., 884 F.2d 664, 668 (24d Cir.1989) ("Thus, under [section] 1962(2), it may be possible for a defendant to also be the enterprise."); accord American Mfrs. Mut. Ins. Co. v. Townson, 912 F.Supp. 291, 295 (E.D.Tenn.1995) (finding that a marriage can satisfy the enterprise requirement for section 1962(c) claims). - Consequently, the trial court properly denied Bradshaw's motion to quash the bindover order on the racketeering *376charge.9

II. Communications Fraud

€ 49 I disagree with the majority opinion's decision to focus its analysis on the word "scheme" in its interpretation and application of the communications fraud statute. I am also concerned with the problematic determination that the word "another," as used in the statute, should be interpreted solely in the singular. Accordingly, I disagree with the majority opinion's reliance upon these terms to conclude that the statute is ambiguous and that, under the rule of lenity, the State is precluded from charging Bradshaw as it did. Finally, I disagree with the majority opinion's foray into policy discussion, which is, in this instance, an inappropriate invasion of the legislature's province.

150 The majority opinion parses the language of section 76-10-1801 to determine that the statute's operative and controlling term is "scheme." However, in doing so, the majority opinion ignores both the plain language of the statute and our duty to " 'avoid interpretations that will render portions of a statute superfluous or inoperative.'" State v. Martines, 2002 UT 80, 18, 52 P.3d 1276 (quoting Hall v. Department of Corr,, 2001 UT 34, 115, 24 P.3d 958). Section 76-10-1801, in relevant part, reads:

Any person who has devised any scheme or artifice to defraud another or to obtain from another money, property, or anything of value by means of false or fraudulent pretenses, representations, promises, or material omissions, and who communicates directly or indirectly with any person by any means for the purpose of executing or concealing the scheme or artifice is guilty[ of communications fraud.]

Utah Code Ann. § 76-10-1801(1) (1999) (emphasis added).

151 It is clear from the statutory plain language that the legislature chose the phrase "scheme or artifice to defraud" in articulating the conduct prohibited by the statute. The majority opinion, however, ignores the legislature's clear indication of its intent. - Consequently, the interpretation fails to give effect to the statute's unambiguous language, and instead adopts an interpretation that renders "portions of the statute superfluous or inoperative/" - Martines, 2002 UT 80 at T8, 52 P.8d 1276 as well as a reading that " 'contradict[s] its plain meaning.'" State v. Burns, 2000 UT 56,9 25, 4 P.3d 795 (citation omitted).

1 52 The majority opinion's approach then uses its interpretation of "scheme" as a springboard for its determination that the word "another" must be viewed in the singular. However, beyond its reliance on the term "scheme," the majority opinion offers little substantive support for its interpretation of "another." This approach ignores our duty to interpret such words fluidly, offering both plural and singular application, unless such an interpretation would be "inconsistent with the manifest intent of the Legislature or repugnant to the context of the statute." Utah Code Ann. § 68-3-12(1) (2000) (emphasis added). Because section 76-10-1801 contains no such limiting language, we must presume that the legislature intended "another" to refer to one or more people. Thus, the plain language of section 76-10-1608 does not support the majority opinion's reading.

¶53 The meaning of section 76-10-1608 is clear and no ambiguity exists. Without ambiguity, the majority opinion's lenity discussion is unnecessary and inapplicable. See National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 262, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) (stating "the rule of lenity applies only when an ambiguity is present; ¢ "it is not used to beget one.... The rule comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers." '" (citations omitted) (ellipsis in original)). Similarly, the majority opinion's foray into policy *377is equally inadvisable. As noted by our supreme court:

"We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.
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'[IJn a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.'" ~

State v. Mace, 921 P.2d 1872, 1877 (Utah 1996) (alteration in original) (citation omitted); see also State v. Herrera, 895 P.2d 859, 362 (Utah 1995) (noting that policy discussions are "better accomplished in the legislature than in the courts"); Sullivan v. Scou-lar Grain Co., 858 P.2d 877, 888 (Utah 1998) (stating that in the absence of ambiguity, courts are not "free to assess the wisdom of a statutory scheme" (quotations and citation omitted)).10

154 Accordingly, we are called upon to determine whether the State's decision to charge Bradshaw with multiple felony counts of communications fraud was proper under the plain language of the statute. Section 76-10-1801 reads, in relevant part:

Any person who has devised any scheme or artifice to defraud another ... and who communicates directly or indirectly with any person by any means for the purpose of executing or concealing the scheme or artifice is guilty of:
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a class A misdemeanor when the value of the property, money, or thing obtained or sought to be obtained is or exceeds $300 but is less than $1,000; . a second degree felony when the value of the property, money, or thing obtained or sought to be obtained is or exceeds $5,000;
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The determination of the degree of any offense ... shall be measured by the total value of all property, money, or things obtained or sought to be obtained by the scheme or artifice. ...
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Each separate communication made for the purpose of executing or concealing a scheme or artifice ... is a separate act and offense of communications fraud.
Utah Code Ann. § 76-10-1801 (1999). The statute's plain language suggests that the statute's seope is defined by the meaning and application of the phrase "scheme or artifice to defraud."

155 "(Scheme or artifice to defraud" is widely defined to mean "the overall design to defraud one or many by means of a common plan or technique." - United States v. Massey, 48 F.3d 1560, 1566 (10th Cir.1995) (emphasis added); see also United States v. Rogers, 321 F.3d 1226, 1229 (Oth Cir.20083). In Massey, the defendants were convicted of, inter alia, eight counts of mail fraud. See Massey, 48 F.3d at 1564. On appeal, the defendants argued that application and meaning of the phrase " 'scheme or artifice to defraud is limited to each individual defrauded client." Id. at 1566 (citation omitted). The court, in response, stated that not only was the defendants' argument spurious and unsupported, but that " 'scheme to defraud has a wider meaning than an individual act of fraud." Id. It is better defined as "the overall design to defraud one or many by means of a common plan or technique." Id. (emphases added); see also United States v. Sampson, 371 U.S. T5, 78-81, 871 U.S. 75, *3789 L.Ed.2d 136(1962) (holding that activities in support of fraudulent activity, but not directly fraudulent in and of themselves, can also be considered violative of the federal mail fraud statute). Thus, because the meaning of the phrase "scheme or artifice to defraud" has a clear historical usage, we must presume that the legislature was aware of its meaning when it chose to use the phrase in criminalizing communications fraud. Consequently, we must also presume that the legislature intended the statute to be applied to any "common plan or technique" used by a defendant to "defraud one or many [people or entities.]" Massey, 48 F.3d at 1566.11

156 Here, Bradshaw stipulated to the facts underlying the charged conduct. That conduct clearly suggests that all of Bradshaw's efforts involved one common plan or technique. Simply put, Bradshaw somehow gained access to several people's sensitive financial information. From this information, Bradshaw chose his victims. He chose them because they desperately wanted or needed money to refinance their residences. Bradshaw then approached each victim and told each a similar or nearly identical story. He told each that he owned, solely or in part, a mortgage company and that he wanted to help them acquire their desired refinancing. He then told them that he needed a certain amount of money up front, to perform a variety of finance related tasks, before the victims could obtain their desired refinane-ing. Each of the eleven named victims gave Bradshaw the requested amount, never more than $600.00, after which Bradshaw disappeared from their lives, never performing even one of the promised services.12 Because Bradshaw used the same method or technique to defraud all of the victims, his conduct amounted to one "scheme or artifice to defraud." Consequently, the only task remaining to this court should be ensuring that the statute was properly applied to Bradshaw.

157 Under section 76-10-1801(2), the severity of the charges levied against Bradshaw must be "measured by the total value of all ... money ... obtained ... by the scheme or artifice described in Subsection (1)." Utah Code Ann. § 76-10-1801(@Q). Having concluded that Bradshaw engaged in a single "scheme or artifice to defraud," nothing remains other than simple arithmetic. From the stipulated facts, Bradshaw's "scheme or artifice to defraud" yielded him over $5,000.00. Accordingly, under the statute's plain language, each communication that Bradshaw made in furtherance of his "scheme or artifice to defraud" could be charged as a felony in the second degree, because the statute criminalize the communication itself, not the successful completion of the involved fraudulent scheme. See id. § 76-10-1801(1)(d), (2), (5).

158 Finally, under section 76-10-1801(5), "[elach separate communication [Bradshaw] made for the purpose of executing or concealing a scheme or artifice described in Subsection (1) is a separate act and offense of communication fraud." Id. § 76-10-1801(5). Here, Bradshaw stipulated that he had made or attempted at least eleven separate communications in furtherance of his "scheme or artifice to defraud." Consequently, under *379the plain language of sections 76-10-1801(1) and 76-10-1801(5), Bradshaw committed eleven separate violations. See Utah Code Ann. § 76-10-1801(1) ("Any person who has devised any scheme or artifice to defraud another ... who communicates directly or indirectly with any person by any means for the purpose of executing or concealing the scheme or artifice is guilty" of violating the statute.)13

159 By its plain language, the legislature has decided to punish each act of communication in furtherance of a "scheme or artifice to defraud," and determined that each such act is to be punished based on the aggregate amount reaped through the scheme. Therefore, the State's decision to charge Bradshaw with eleven second degree felony communications fraud charges was proper, and the trial court correctly refused to reduce either the number or the degree of the charges.

v. CONCLUSION

T 60 I disagree with the majority opinion's analyses, its lack of deference to legislative intent, and its ultimate conclusions. I believe that the trial court properly denied Bradshaw's motion to quash the racketeering charge. Under our bindover standard, articulated in State v. Clark, 2001 UT 9,%§ 10-16, 20 P.3d 300, the State's evidence established sufficient probable cause to believe that Bradshaw violated the statute.

T61 I am further convinced that the trial court correctly denied Bradshaw's motion to reduce either the degree or the number of communications fraud charges. Bradshaw used one common plan or method to defraud his victims; thus, his entire crime spree utilized one "scheme or artifice to defraud," subjecting him to the increased number and level of charges. Consequently, I would conclude that both the number of charges and the charging level were appropriate for the conduct, and I would therefore affirm the decision of the trial court.

. The majority opinion refers to a number of civil RICO cases to support its analysis. I take no issue with its reference to civil cases in this context, nor do I disagree with its assertion that the State is required to prove that the defendant was involved in an enterprise and that funds derived from his racketeering activities enabled the defendant to invest resources in the enterprise.

I would like, however, to highlight that one material difference exists between criminally prosecuting racketeering charges, based on violations of 18 U.S.C.A. § 1962(a), and eligibility to prosecute civilly under the same subsection. To prosecute under section 1962(a), the government must prove "the existence of an enterprise, the defendant's derivation of income from a pattern of racketeering activity, and the use of any part of that income in acquiring an interest in or operating the enterprise." United States v. Cau-ble, 706 F.2d 1322, 1331 (5th Cir.1983). However, when the issue is the civil application of section 1962(a), even if a plaintiff can show each of the elements required for a criminal conviction, they have no standing to sue unless they can show that they suffered damages from the racketeer's investment in the enterprise. See Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 779 n. 6 (7th Cir.1994) (noting that, under the majority rule, the plaintiff lacked " § 1962(a) standing ... because it has alleged injury only from the alleged predicate acts, not from the investment-use of the converted funds"); Grider v. Texas Oil & Gas Corp., 868 F.2d 1147, 1149 (10th Cir.1989) ("'It thus appears from the plain language of these two provisions [(§§ 1962(a) and (c))] that a plaintiff seeking civil damages for a violation of section 1962(a) must plead facts tending to show that he was injured by the use or investment of racketeering income. Injury from the racketeering acts themselves is not sufficient because section 1962(a) does not prohibit those acts."); Garbade v. Great Divide Mining and Milling Corp., 831 F.2d 212, 213 (10th Cir.1987) (same); Allen v. New World Coffee, Inc., No. 00 Civ. 2610, 2002 WL 432685, "4, 2002 U.S. Dist. LEXIS 4624, at **8-10 (S.D.N.Y. Mar. 19, 2002) (same); Barker v. E.F. Hutton & Co., No. C-89-1840, 1990 WL 257283, "3, 1990 U.S. Dist. LEXIS 19039, at *8 (N.D.Cal. July 6, 1990) (same). Thus, civil cases are not perfectly analogous.

. The decision of the majority opinion to draw no inference in favor of the State because the parties stipulated to the facts presented to the magistrate is without precedent. Moreover, this approach fails take into account that, not only was Bradshaw not forced into accepting the stipulation, he voluntarily entered into it. Consequently, I can discern no reason to penalize the State by refusing to draw all inferences in its *373favor, as required, and I am certain that the majority opinion errs in doing so.

. Although the Supreme Court uses the term "entity," this should not be interpreted as limiting the scope of what can constitute an enterprise. See Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 345 (2d Cir.1994) (stating "there is no requirement under section 1962(a) (as opposed to section 1962(c)) that the 'person' be distinct from the 'enter-a an prise' ").

. At least one circuit has held that "there is no requirement under RICO that an enterprise have an 'ascertainable structure.'" United States v. Connolly, 341 F.3d 16, 27 (1st Cir.2003) (citation omitted).

. The case cited by the majority opinion for this proposition is inapplicable to this case. See Con-dict v. Condict, 826 F.2d 923 (10th Cir.1987). Condict focused on a civil dispute that arose between family members over ownership inter-esis in a ranch. See id. at 924-25. On appeal, following the trial court's dismissal of the claim, the Tenth Circuit Court of Appeals upheld the trial court's decision. However, although the court used the phrase "garden variety fraud and deceit," the court found that the action had been properly dismissed because, the plaintiffs failed to show both "a pattern of racketeering activities" and the "continuity requirement" required to satisfy section 1962(c). Id. at 929 (quotations and citation omitted). In this case, Bradshaw concedes that he engaged in a pattern of racketeering activity, and the continuity requirement of section 1962(c) has no application. Thus, Condict is not helpful.

. In concluding that the State failed to show that there was probable cause to believe that Bradshaw was involved in an enterprise, the majority opinion relies on State v. Bell, 770 P.2d 100 (Utah 1988). Although the majority opinion concedes that Bell reached the supreme court in a different procedural posture, its opinion fails to clearly identify the key differences.

In Bell, the defendant was convicted of racketeering by a jury. See id. at 101. He appealed and his conviction was reversed. See id. The supreme court found that the state had failed to provide the defendant with a court ordered bill of particulars. See id. at 105. Consequently, the supreme court concluded that the defendant's defense efforts had been irreparably prejudiced by the state's inaction. See id. at 106 ('The specific question, then, is whether the State's failure to notify [the defendant] of these three factual bases for the allegations of [an] enterprise so impeded his ability to prepare a defense to those allegations as to require reversal under rule 30" of the Utah Rules of Criminal Procedure.). Specifically, the court found that the defendant was not provided with the required notice that would have enabled him to adequately prepare his defense. See id. at 107.

Significantly, Bell nowhere discussed the subject of probable cause, nor did the supreme court suggest that the indictment filed against the defendant was not supported by probable cause. Moreover, at no point in Bell does the court even intimate that the defendant had been bound over improperly. Rather, the court focused its attention on the state's "failure to provide an adequate bill of particulars" and concluded that said failure "unfairly prejudice{d the defendant's] ability to prepare and present a defense" at trial. Id. at 107.

Consequently, the court in Bell was focused on the fairness of the defendant's trial, and although the enterprise issue was discussed, the discussion focused solely on the proof that is necessary to convict under our racketeering statute. See id. at 103 n. 2. Accordingly, I do not believe that Bell assists in resolving the instant case, nor does Bel/ offer any material assistance to the analysis of the issue before this court. Had Bradshaw desired, he could have relied upon Belf to demand a bill of particulars, and the State would have been required to provide those particulars.

. While not necessary, it is also clear that the facts and reasonable inferences supporting Bradshaw's pattern of unlawful conduct are distinct from the facts and inferences that would tend to show that he, himself, was the enterprise and that he somehow used his ill-gotten gains to the benefit of the enterprise. But see State v. Hutch-ings, 950 P.2d 425, 432 (Utah Ct.App.1997) (noting "the Utah Supreme Court has implicitly ruled that the same set of facts used to prove the pattern of unlawful activity can be used to prove the existence of an enterprise").

. Although the evidence presented at the bind-over hearing is sufficient to survive a motion to quash, I agree that absent more, the evidence is probably insufficient to convict Bradshaw of racketeering. However, based upon the supreme court's instruction that we assume the State's case will only get stronger, see State v. Clark, 2001 UT 9,910, 20 P.3d 300, the trial court properly denied Bradshaw's motion to quash.

. This case, regardless of the outcome, involves nothing more than standard statutory interpretation. See State v. Hardy, 2002 UT App 244,% 10, 54 P.3d 645 (stating " "[when language is clear and unambiguous, it must be held to mean what it expresses, and no room is left for construction'" (citation omitted)). The language of the communications fraud statute is not ambiguous. In fact, because both the majority opinion and the dissent ultimately rest their analyses on whether Bradshaw's conduct followed a common method or technique, it would seem that we agree on the meaning of Utah Code section 76-10-1603. - Our disagreement rests instead in the application of the statute and not in its meaning. Thus, the majority opinion's policy discussion strays into an area of construction not properly before this court. See State v. Herrera, 895 P.2d 359, 362 (Utah 1995) (stating "[elven if a court finds certain legislation unreasonable or unwise, that alone does not mean it has authority to invalidate it"). M

. This outcome is further supported by reference to the commonly accepted definition of the words "to defraud." As stated by the United States Supreme Court, "the words 'to defraud' commonly refer 'to wronging one in his property rights by dishonest methods or schemes,' and 'usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.'" McNally v. United States, 483 U.S. 350, 358, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) (quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924)).

. The majority opinion suggests that these facts do not equate to a single scheme or artifice to defraud, because the "[the victims were deceived at different times, in different places, by different stories, and through different methods." I am puzzled by the majority opinion's conclusion that Bradshaw approached the victims "through different methods" when it is clear from the evidence the he used one method with just a few minor variations. Moreover, the majority opinion's approach seems to be contrary to both United States v. Sampson, 371 U.S. 75, 76-77, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962), where "[the individual defendants were officers, directors, and employees of a large, nationwide corporation [who] purported to be able to help businessmen obtain loans or sell out their businesses," and United States v. Massey, 48 F.3d 1560 (10th Cir.1995), where the defendant operated an illegal pyramid lending scheme, which affected multiple victims.

. The majority opinion voices concern about the possibility that Bradshaw faced a possible 165-year sentence if convicted of each count and if the trial court sentenced him to serve each term consecutively. However, pursuant to Utah Code section 76-3-401(6)(a) (2003), Bradshaw faced a maximum of 30-years incarceration if he were convicted of all charges and sentenced to serve each term consecutively. See Utah Code Ann. § 76-3-401 (limiting the amount of time that a convicted person will serve under Utah's sentencing laws). Moreover, although the majority opinion suggest that the sentence Bradshaw possibly faced "is repugnant to notions of traditional" justice, I would suggest that Bradshaw's victims, some of whom may have faced financial ruin-and the possible loss of their businesses and homes-due to his activities, would believe a sentence of 165 years to be reasonable.