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State v. Catt
ATTREP, Judge.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Mark T. Sánchez, District Judge Hector H. Balderas, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM for Appellee Law Offices of Jennifer J. Wernersbach, PC
Jennifer J. Wernersbach
Albuquerque, NM for Appellant
ATTREP, Judge. {1} Defendant Angela Catt was convicted by a jury of racketeering, conspiracy to commit racketeering, and conspiracy to commit drug trafficking. Defendant moved the district court to set aside the racketeering convictions and enter judgments of acquittal on the grounds that the jury had failed to find she committed the requisite two predicate acts and that there was instructional error. Defendant additionally argued that retrial would violate her right to be free from double jeopardy on the ground that sufficient predicate acts were lacking. The district court vacated Defendant's racketeering convictions but permitted retrial. Defendant now appeals this order. We hold that instructional error warranted vacating Defendant's racketeering convictions. Because the State may rely on conspiracy to commit drug trafficking as a predicate offense, however, sufficient predicates exist to permit retrial of the racketeering charges. Defendant additionally appeals her conviction for conspiracy to commit drug trafficking on sufficiency grounds. We hold that substantial evidence supported this conviction. We therefore affirm.
For ease of reference, the Court refers to racketeering and conspiracy to commit racketeering collectively as "the racketeering convictions," "the racketeering charges," or "the racketeering counts" when no distinction is necessary.
BACKGROUND{2} Defendant was alleged to be associated with a methamphetamine trafficking organization known as "the AZ Boys." She was charged by indictment with three counts of methamphetamine trafficking occurring on March 18, 2012, April 8, 2012, and May 1, 2012; three counts of conspiracy to traffic methamphetamine related to the same dates; and one count each of racketeering and conspiracy to commit racketeering. After a four-day trial, a jury convicted Defendant of racketeering (Count 1), conspiracy to commit racketeering (Count 2), and conspiracy to traffic methamphetamine on April 8, 2012 (Count 8). The jury acquitted Defendant of the trafficking and conspiracy to traffic counts pertaining to the date of March 18, 2012 (Counts 5 and 6), as well as the trafficking count pertaining to the date of April 8, 2012 (Count 7). The jury deadlocked on the trafficking and conspiracy to traffic counts related to the alleged conduct of May 1, 2012 (Counts 3 and 4). The district court declared a mistrial as to those counts and permitted retrial. Defendant does not appeal this decision. {3} Shortly after trial, Defendant moved the district court to set aside her racketeering convictions, and to enter judgments of "not guilty" or dismiss the racketeering counts with prejudice. Defendant argued that the failure of the jury to convict her of two trafficking counts demonstrated that insufficient evidence existed to convict her of racketeering and conspiracy to racketeer. Therefore, evidence. Additional facts are discussed as needed in our analysis. Table 1 summarizes the present posture of the charges.
| Table 1 |
|||
|---|---|---|---|
| Count |
Charge |
Verdict |
District Court'sOrder |
| 1 |
Racketeering |
Guilty |
Vacated / retrialordered |
| 2 |
Conspiracy to commit racketeering |
Guilty |
Vacated / retrialordered |
| 3 |
Trafficking methamphetamine on May1, 2012 |
Deadlocked |
Retrial ordered |
| 4 |
Conspiracy to commit traffickingmethamphetamine on May 1, 2012 |
Deadlocked |
Retrial ordered |
| 5 |
Trafficking methamphetamine onMarch 18, 2012 |
Not Guilty |
Judgment ofacquittal entered |
| 6 |
Conspiracy to commit traffickingmethamphetamine on March 18, 2012 |
Not Guilty |
Judgment ofacquittal entered |
| 7 |
Trafficking methamphetamine onApril 8, 2012 |
Not Guilty |
Judgment ofacquittal entered |
| 8 |
Conspiracy to commit traffickingmethamphetamine on April 8, 2012 |
Guilty |
Judgment andsentence entered |
{5} We first address whether this Court has jurisdiction to review the denial of Defendant's motion for acquittal or dismissal in the absence of a final order. Concluding we do, we then lay out general principles of double jeopardy and racketeering. We next hold that the district court correctly determined that both racketeering convictions should be set aside for instructional error. The issue then is whether Defendant can, consistent with her right to be free from double jeopardy, be subject to retrial on these charges. We hold that she can. Finally, although the parties request us to opine about the scope of retrial, we decline to do so.
I. The Court Has Jurisdiction to Review the District Court's Order Denying Defendant's Motion for Acquittal or Dismissal{6} The State argues that Defendant's appeal should be summarily dismissed "for want of a final order" or, if the appeal is construed as an interlocutory appeal, because it is untimely. The district court's order, however, implicates Defendant's constitutional right to avoid double jeopardy—indeed, Defendant's "right not to be subjected to a second trial for the same offense could not be remedied once the second trial has taken place." State v. Apodaca, 1997-NMCA-051, ¶ 16, 123 N.M. 372, 940 P.2d 478. This Court, therefore, has jurisdiction to immediately review the district court's denial of Defendant's motion for acquittal or dismissal of the racketeering charges. See id. ¶¶ 15-17 (holding that "a defendant has a constitutional right to appeal from an order denying a motion to dismiss a charge on the ground that trial of the charge would subject the defendant to double jeopardy" and that this Court has jurisdiction to hear such an appeal); see also State v. McClaugherty, 2007-NMCA-041, ¶ 27, 141 N.M. 468, 157 P.3d 33 ("The denial of the motion [to bar reprosecution] below is all that is required by Apodaca to confer jurisdiction on this Court to hear an immediate direct appeal.").
II. Double Jeopardy{7} The Constitutions of the United States and New Mexico guarantee that no person shall be "twice put in jeopardy" for the same offense. U.S. Const. amend. V; N.M. Const. art. II, § 15. "The Double Jeopardy Clause operates to protect an individual from repeated attempts by the state, 'with all its resources and power,' to secure a conviction, with the consequent anxiety, embarrassment, and undue expense to a defendant that results from retrial." Ben, 2015-NMCA-118, ¶ 7 (quoting Cty. of Los Alamos v. Tapia, 1990-NMSC-038, ¶ 16, 109 N.M. 736, 790 P.2d 1017). "In common parlance, the state, upon failing to convict a defendant after a full and fair opportunity to do so is barred from a second bite of the apple." Id. (internal quotation marks and citation omitted). Retrial is not barred, however, when a conviction has been set aside for reasons other than insufficiency of the evidence. State v. Lizzol, 2007-NMSC-024, ¶ 14, 141 N.M. 705, 160 P.3d 886 (holding that "when a defendant's conviction is vacated on appeal because of trial error, e.g., . . . incorrect instructions, . . . as opposed to insufficiency of the evidence, the defendant may be retried" (internal quotation marks and citation omitted)). We "review[] claims involving alleged violations of a defendant's right to be free from double jeopardy de novo." State v. Loza, 2018-NMSC-034, ¶ 4, 426 P.3d 034.
Neither party argues that there is any difference in the application of the state and federal constitutional provisions to this case. We, therefore, do not distinguish between them in our analysis. See State v. Ben, 2015-NMCA-118, ¶ 7, 362 P.3d 180.
III. The Racketeering Act{8} New Mexico's Racketeering Act (the Racketeering Act), NMSA 1978,§§ 30-42-1 to -6 (1980, as amended through 2015), provides, in relevant part:
C. It is unlawful for a person employed by or associated with an enterprise to conduct or participate, directly or indirectly, in the conduct of the enterprise's affairs by engaging in a pattern of racketeering activity. . . .
D. It is unlawful for a person to conspire to violate the provisions of Subsection[] . . . C of this section.
Section 30-42-4. The Racketeering Act is based on the Racketeering Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. §§ 1961-1968 (2012), the federal statute criminalizing racketeering. Loza, 2018-NMSC-034, ¶ 12. "[A]ccordingly we look to federal cases interpreting RICO for guidance in interpreting our [Racketeering] Act." Id.; see also State v. Rael, 1999-NMCA-068, ¶ 11, 127 N.M. 347, 981 P.2d 280 (finding "federal decisions interpreting RICO . . . instructive"). {9} In this case, Defendant was charged under Section 30-42-4(C), requiring, among other things, a "pattern of racketeering." The Racketeering Act defines a "pattern of racketeering" as "engaging in at least two incidents of racketeering with the intent of accomplishing any of the prohibited activities set forth in [the Racketeering Act,]" provided that the incidents occurred within a certain time frame not at issue here. Section 30-42-3(D). "Racketeering," in turn, is defined as "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" twenty-five offenses, including trafficking in controlled substances. Section 30-42-3(A). Thus, to establish a "pattern of racketeering," the state must prove "two incidents of racketeering," often referred to as "predicate offenses" or "predicate acts." Section 30-42-3(D); cf. State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254 ("To be convicted under Section 30-42-4(A), [the d]efendants must have committed at least two punishable offenses that constitute racketeering." (citing § 30-42-3(D))); State v. Crews, 1989-NMCA-088, ¶ 47, 110 N.M. 723, 799 P.2d 592 (discussing the elements of racketeering). At issue in this case is whether the jury was instructed correctly on all the elements of the racketeering charges, and whether sufficient predicates exist to permit retrial. IV. The District Court Did Not Err in Vacating the Racketeering Convictions for Instructional Error
{10} "When the defendant has been found guilty, the court on motion of the defendant, or on its own motion, may grant a new trial if required in the interest of justice." Rule 5-614(A) NMRA.
When reviewing a [district] court's grant of a new trial, the appellate court must follow a two-step approach. First, this court must determine whether the grant of a new trial is based upon legal error. Second, this court must determine whether the error is substantial enough to warrant the exercise of the [district] court's discretion.way of knowing whether the conviction was or was not based on the lack of the essential element." (internal quotation marks and citation omitted)). {12} Racketeering. As to racketeering, the jury was instructed as follows:
For you to find [D]efendant guilty of racketeering (conduct or participate) as charged in Count 1, the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. There is an existence of an enterprise.
2. [D]efendant was associated with the enterprise.
3. [D]efendant participated in the conduct of the affairs of the enterprise through a pattern of racketeering activity through the commission of two or more crimes.
4. [D]efendant engaged in at least two incidents of racketeering with the intent to commit a prohibited activity. . . .
5. [D]efendant was not acting under duress.
6. This happened in New Mexico on or between the 1st day of November, 2007 and the 15th day of May, 2012.
A subsequent instruction set out the Racketeering Act's definition of "racketeering," i.e., "any act that is chargeable or indictable under the laws of New Mexico . . . involving any of" the following offenses: (1) murder, (2) robbery, (3) kidnapping, (4) forgery, (5) larceny, (6) fraud, (7) embezzlement, (8) receiving stolen property, (9) bribery, (10) gambling, (11) illegal kickbacks, (12) extortion, (13) trafficking in controlled substances, (14) arson and aggravated arson, (15) promoting prostitution, (16) criminal solicitation, (17) fraudulent securities practices, (18) loan sharking, (19) distribution of controlled substances or were legally flawed and thus, inadequate to support the conviction in this case under [Ohio's racketeering statute] as a matter of law"). {15} Conspiracy to Commit Racketeering. On appeal, the State argues that Defendant's conviction for conspiracy to commit racketeering should be reinstated because the district court incorrectly determined that the jury instruction was erroneous. We decline to do so. First, the State agreed to vacatur of Defendant's conspiracy to racketeer conviction partially on the ground that the instruction—which the State specifically requested—was erroneous. Generally, this Court "will not allow the State to invite error and then to complain of it." State v. Dominguez, 2008-NMCA-029, ¶ 13, 143 N.M. 549, 178 P.3d 834. Second, in addition to the error identified with the substantive racketeering instruction, we conclude that the conspiracy to racketeer instruction is flawed on other grounds. {16} As to the conspiracy to commit racketeering instruction, the jury was instructed as follows:
For you to find [D]efendant guilty of conspiracy to commit racketeering (conduct or participate) as charged in Count 2, the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. [D]efendant and another person by words or acts agreed together to commit racketeering;
2. [D]efendant and the other person intended to commit racketeering;
3. [D]efendant was not acting under duress[;]
4. This happened in New Mexico on or between the 1st day of November, 2007 and the 15th day of May, 2012.
This instruction tracks the uniform jury instruction for conspiracy, inserting "racketeering" as the named felony that was the subject of the conspiracy. See UJI 14-2810. Although the intention of the conspiracy to commit racketeering instruction may have been to incorporate all the elements from the racketeering instruction pertaining to Count 1, it did not accomplish this. {17} Instead, the jury instruction refers to "racketeering" alone. Although "racketeering" is a separate criminal offense (as charged in Count 1), it also is a defined term meaning any act involving any of twenty-five predicate offenses. It is not clear from the instruction in Count 2 whether "racketeering" refers to the separate criminal offense or to the defined term. If it is the latter, the instruction for Count 2 (conspiracy to commit racketeering) requires only that Defendant and another agreed to and intended to commit any one of the twenty-five predicate acts. This leads to the possibility that, for example, if the jury determined that Defendant committed one count of conspiracy to commit drug trafficking, the jury also could have convicted Defendant for conspiracy to commit racketeering on this basis alone. This is impermissible. The instruction omitted, among other things, any elements pertaining to an enterprise or a pattern of racketeering. Cf. State v. Hughes, 1988-NMCA-108, ¶ 39, 108 N.M. 143, 767 P.2d 382 (comparing requirements for trafficking conspiracy and racketeering conspiracy). And indeed require proof of an overt act" (alteration, internal quotation marks, and citations omitted)). We presume, as did the Supreme Court in Salinas, that our Legislature "intended to use the term [conspire] in its conventional sense," and that, contrary to Defendant's assertion, our Legislature did not intend to require the State to prove that a defendant committed or agreed to commit the predicate acts herself to sustain a conviction for conspiracy to commit racketeering. 522 U.S. at 64; see also Citation Bingo, Ltd. v. Otten, 1996-NMSC-003, ¶ 21, 121 N.M. 205, 910 P.2d 281 ("[W]e presume that the legislature was aware of existing statutory and common law and did not intend to enact a law inconsistent with existing law."). {22} We find Salinas persuasive and adopt its holding here. We, however, do not endeavor to set out the essential elements required for a jury instruction on conspiracy to commit racketeering. The potential nuances of such an instruction are simply not before us in this appeal.
In vacating the racketeering convictions, the district court seems to have relied on inconsistent or irreconcilable verdicts as one basis for its decision. On appeal, Defendant does not rely on this as a basis for setting aside the racketeering convictions, or for acquittal or dismissal of the racketeering counts. Neither do we. See State v. Leyba, 1969-NMCA-030, ¶ 37, 80 N.M. 190, 453 P.2d 211 (holding that an acquittal that is "irreconcilable" with a conviction "does not require the conviction to be set aside as a matter of law"); see also United States v. Powell, 469 U.S. 57, 64 (1984) ("[W]here truly inconsistent verdicts have been reached, the most that can be said is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions[.]" (alteration, omission, internal quotation marks, and citation omitted)); State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 P.3d 828 ("[W]e will affirm the [district] court's decision if it was right for any reason so long as it is not unfair to the appellant for us to do so.").
Defendant disputes whether conspiracy to commit drug trafficking may be a valid predicate offense. We address this argument in depth in Section V below.
In addition to the new uniform jury instructions on conspiracy effective at the end of this year (UJIs 14-2810, 14-2810A, 14-2810B, and 14-6019B NMRA, http://www.nmcompcomm.us/nmrules/NMRuleSets.aspx), the substantial federal authority pertaining to the essential elements of conspiracy to commit racketeering may provide guidance to the district court and parties when crafting a jury instruction to fit the evidence on retrial. For reference, we provide citation to pattern jury instructions adopted by several federal circuit courts. See, e.g., 2B Fed. Jury Prac. & Instr. § 56:11 (6th ed.) (setting out pattern jury instructions on conspiracy to commit racketeering through a pattern of racketeering, and including model criminal jury instruction from the United States Court of Appeals for the Eighth Circuit); Mod. Crim. Jury Instr. 3rd Cir. 6.18.1962D (2018) (Third Circuit pattern instruction); Fed. Crim. Jury Instr. 7th Cir. 1962(d)[1] (2012 ed.) (Seventh Circuit pattern instruction); Pattern Crim. Jury Instr. 11th Cir. OI O75.2 (2016) (Eleventh Circuit pattern instruction). It should be noted that the federal circuits diverge, and in some cases conflict, on various elements required for conspiracy to commit racketeering. Our citation to these instructions in no way endorses the approach taken by any one of these circuits.
V. The District Court Did Not Err in Ordering Retrial on the Racketeering Counts{23} Having determined that the instructions for both racketeering and conspiracy to commit racketeering were erroneous, and that the district court did not abuse its discretion in vacating Defendant's racketeering convictions, we next examine whether retrial is appropriate. Generally, when a conviction is vacated for trial error, including incorrect instructions, the defendant may be retried. Lizzol, 2007-NMSC-024, ¶ 14; Clifford, 1994-NMSC-048, ¶ 12 (reversing a conviction where the jury instructions omitted an essential element and remanding for a new trial on that count). If a conviction is vacated on insufficiency of evidence grounds, however, double jeopardy principles will bar retrial. Lizzol, 2007-NMSC-024, ¶¶ 13, 14. {24} Defendant maintains that only the trafficking counts, not the conspiracy to commit trafficking counts, can serve as predicate offenses. Because she was acquitted of two of the three trafficking charges, Defendant thereby maintains that only one possible predicate offense remains for retrial—and, thus, the State can never prove that she committed two predicate acts without her being retried for conduct on which she was acquitted. Viewed this way, Defendant asserts that the judgment of acquittal."); cf. United States v. Vastola, 899 F.2d 211, 222 (3d Cir. 1990) (reversing the district court's grant of acquittal to the defendant where the jury "found [the defendant] guilty of only one of the four predicate racketeering acts" and either deadlocked or acquitted on the remaining three predicate acts, but then convicted him for racketeering), vacated on other grounds by Vastola v. United States, 497 U.S. 1001 (1990). The district court, therefore, correctly denied Defendant's motion for acquittal or dismissal and ordered retrial of the racketeering charges.
As discussed above, the State need not prove that Defendant committed two predicate acts to be convicted of conspiracy to racketeer. Given this holding, we need only examine Defendant's arguments that insufficient predicate acts exist to permit retrial in the context of the racketeering charge, not the conspiracy to commit racketeering charge. Defendant has advanced no argument specific to the sufficiency of the evidence for the conspiracy to racketeer charge and we, therefore, do not address it. See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 ("We will not . . . guess at what a party's arguments might be." (alteration, internal quotation marks, and citation omitted)). There being instructional error on the conspiracy to commit racketeering charge and no corresponding insufficiency of evidence, retrial of Count 2 is not barred by double jeopardy. See Lizzol, 2007-NMSC-024, ¶¶ 13, 14.
VI. The Court Will Not Address Arguments Pertaining To the Scope of Retrial{30} The remaining arguments pertaining to the racketeering charges advanced by the parties relate to the scope of the retrial and not whether retrial should happen at all. These issues, however, are outside our review of the district court's order and should be addressed by the district court in the first instance. See Apodaca, 1997-NMCA-051, ¶ 16 (limiting the constitutional right to appeal a non-final order when "interests [are] of the greatest importance," such as "a defendant's right not to be subjected to a second trial for the same offense[, a violation of which] could not be remedied once the second trial has taken place"); see also United States v. Wittig, 575 F.3d 1085, 1096 (10th Cir. 2009) (declining to address the defendant's collateral estoppel arguments and stating that the court's "jurisdiction [under the to consider them because "[a]ppellate courts do not give advisory opinions." (internal quotation marks and citation omitted)). This we will not do. {32} For the foregoing reasons, we decline to address the parties' remaining arguments pertaining to the scope of retrial.
THE CONSPIRACY TO COMMIT DRUG TRAFFICKING CONVICTION{33} Defendant additionally appeals from her judgment and sentence on conspiracy to commit trafficking methamphetamine (Count 8) for sufficiency of the evidence. We first address whether this Court has jurisdiction to review Defendant's conviction on Count 8. Concluding we do, we determine that Defendant's conviction is supported by substantial evidence.
I. This Court Has Jurisdiction to Review Defendant's Conviction for Conspiracy to Commit Trafficking{34} The State contends that Defendant's appeal from her judgment and sentence should be dismissed "for want of a final order." The State argues that even though the district court entered a judgment and sentence on Count 8, the judgment did not dispose of all issues of law and fact to the fullest extent possible and, thus, is non-final. {35} In criminal cases, "an appeal may be taken by the defendant to the supreme court or court of appeals . . . within thirty days from the entry of any final judgment[.]" NMSA 1978,§ 39-3-3(A) (1972). "[T]he judgment is final for the purpose of appeal when it terminates the litigation on the merits and leaves nothing judgment and sentence on Count 8. Further, given Defendant already availed herself of the right to immediately appeal the district court's denial of her motion for acquittal on double jeopardy grounds, the usual countervailing arguments against piecemeal appeals simply are not at play in this case. See State v. Candy L., 2003-NMCA-109, ¶ 6, 134 N.M. 213, 215, 75 P.3d 429, 431 (noting policy disfavoring piecemeal appeals). Accordingly, we conclude that the judgment and sentence entered on Count 8 is sufficiently final to be appealable, and we proceed to address Defendant's sufficiency of the evidence argument.
A number of jurisdictions regard a conviction and entry of a judgment and sentence on less than all counts of a multicount indictment as final and appealable notwithstanding that a retrial remains on other counts, treating the remaining counts as severed from the convicted counts. See, e.g., United States v. King, 257 F.3d 1013, 1020 (9th Cir. 2001); United States v. Abrams, 137 F.3d 704, 709 (2d Cir. 1998); State v. McCave, 805 N.W.2d 290, 304 (Neb. 2011). --------
II. Sufficient Evidence Supports Defendant's Conviction for Conspiracy to Commit Drug Trafficking{37} "In reviewing the sufficiency of evidence used to support a conviction, we resolve all disputed facts in favor of the State, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary." State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. "Contrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject [the d]efendant's version of the facts." Id. "The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (alteration, internal quotation marks, and citation omitted). {38} In determining whether substantial evidence exists, we review the evidence against the instructions submitted to the jury. State v. Caldwell, 2008-NMCA-049, ¶ 29, 143 N.M. 792, 182 P.3d 175. Defendant was convicted of conspiracy to commit trafficking methamphetamine, contrary to NMSA 1978,Sections 30-31-20 (2006) and 30-28-2 (1979). To support Defendant's conviction, the State was required to prove beyond a reasonable doubt each of the following elements:
1. [D]efendant and another person by words or acts agreed together to commit trafficking methamphetamine by possession with intent to distribute;
2. [D]efendant and the other person intended to commit trafficking methamphetamine by possession with intent to distribute;
3. [D]efendant was not acting under duress[;]
4. This happened in New Mexico on or about the 8th day of April, 2012.
UJI 14-2810 (conspiracy). As required by the conspiracy instruction, the essential elements of trafficking methamphetamine by possession with intent to distribute (UJI 14-3104 NMRA) also were given. UJI 14-2810 use note 1. As to duress, the jury was instructed that "[i]f [D]efendant feared immediate great bodily harm to herself or another person if she did not commit the crime(s), and if a reasonable borne out when viewing the evidence in the light most favorable to the verdict. Further, the jury heard testimony that Defendant exerted some influence over Bob Chavez during the second trip and had options available to her other than committing the offense. As such, a rational jury could have determined beyond a reasonable doubt that Defendant did not act under duress. Therefore, the evidence was sufficient to establish beyond a reasonable doubt that Defendant committed each element of conspiracy to commit trafficking methamphetamine (Count 8). CONCLUSION
{46} We affirm the district court's order vacating the racketeering convictions, denying Defendant's motion for acquittal or dismissal, and permitting retrial of the racketeering counts. Having determined that substantial evidence supports Defendant's conviction for conspiracy to commit drug trafficking, we also affirm Defendant's conviction for the same.
{47} IT IS SO ORDERED./s/ _________
JENNIFER L. ATTREP, Judge
/s/_________ M. MONICA ZAMORA, Judge 36 /s/_________ DANIEL J. GALLEGOS, Judge
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