This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Affirmed in part, reversed in part, and remanded
Stearns County District Court
File No. K0001366
Bradford Colbert, Melissa Sheridan, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, Lisa M. Needham, Certified Student Attorney, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Roger S. Van Heel, County Attorney, Administration Center, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for respondent)
Considered and decided by Minge, Presiding Judge, Wright, Judge, and Mulally, Judge.*
On appeal from convictions of racketeering and four counts of controlled- substance crime committed for the benefit of a gang, appellant Lionel Fraction argues that (1) the prosecutor committed misconduct by conditioning a plea offer on Fraction’s codefendant also pleading guilty, (2) the district court abused its discretion by refusing to strike a juror for cause, (3) the district court abused its discretion in instructing the jury on the enterprise element of the racketeering charge, (4) the evidence is insufficient to support his convictions, and (5) the district court abused its discretion in sentencing by ranking the racketeering offense at severity level IX and by increasing Fraction’s criminal-history score using the Hernandez method. In a pro se supplemental brief, Fraction raises additional issues. We affirm in part, reverse in part, and remand.
A jury found Lionel Fraction guilty of racketeering, in violation of Minn. Stat. § 609.903, subd. 1(1) (1998). The jury also found Fraction guilty of one count of first-degree controlled-substance crime committed for the benefit of a gang and three counts of second-degree controlled-substance crime committed for the benefit of a gang, for selling crack cocaine during the following time periods: May 1999, October 1998 to January 1999, June to July 1998, and December 1997 to February 1998.
Fraction and eight of the 11 codefendants charged in the complaint are or have been affiliated with the Vice Lords, the Black P Stones, and the Mickey Cobra Stones, all of which are subgroups of the Chicago-based People gang. Fraction began selling crack cocaine in Chicago at age 14 for the Gangster Disciples gang. Two years later, he moved to Minneapolis and continued to sell crack cocaine. Fraction met some of the codefendants while in Minneapolis. Other codefendants moved from Chicago to Minneapolis and renewed their association with Fraction.
By 1995, Fraction had moved to St. Cloud and continued to sell drugs there. In April 1997, he met codefendant Jessica Segelstrom, with whom he eventually had two children. Segelstrom soon began to participate in Fraction’s drug-trafficking activities by delivering crack cocaine to Fraction’s customers, collecting payment from them, and driving Fraction to various drug transactions. Her house became the center of Fraction’s drug trafficking in St. Cloud.
Segelstrom testified that Fraction typically sold crack cocaine in $50 and $100 amounts, earning between $50 and $1,000 a day. She indicated that Fraction’s customers most often contacted him on his pager or cell phone. When Fraction was unavailable, he would turn over his pager and cell phone to codefendant Dana Cobbins, who would then take care of Fraction’s customers. Segelstrom herself responded to Fraction’s pager while Fraction and Cobbins were out of town and made crack-cocaine sales on her own. On other occasions, she referred customers to codefendant Antwan Buckner.
Segelstrom testified that Fraction obtained crack cocaine for resale from codefendant Kenny Askew on approximately 50 occasions. Fraction also made frequent trips to Chicago to buy crack cocaine. On one such trip, Fraction and codefendant Charles Jones bought four and one-half ounces of crack cocaine.
Through her association with Fraction, Segelstrom learned about Fraction’s and other codefendants’ gang affiliations. Fraction told Segelstrom that he was a Gangster Disciple when he was younger and that he later became a Mickey Cobra. Cobbins told Segelstrom that he was a Four Corner Hustler, and Segelstrom knew Askew and Jones to be Mickey Cobras. She also knew that other codefendants were affiliated with gangs.
Kirk Lloyd, who began using crack cocaine in 1984 and lived in St. Cloud between 1994 and 1999, testified about Fraction’s drug-related activities and his gang affiliation. He corroborated Segelstrom’s account of Fraction’s and other codefendants’ drug trafficking in the St. Cloud area and testified that between 1995 and 1999 Fraction sold crack cocaine daily. Lloyd accompanied Fraction to Chicago twice to buy crack cocaine. According to Lloyd, Fraction bought at least one ounce of crack cocaine on each occasion. Lloyd also saw Cobbins, Askew, Jones, Buckner, and codefendant Ruben Eubanks sell crack cocaine. He testified that Cobbins obtained crack cocaine for resale from Fraction, Askew, and Jones.
Through his association with Fraction, Lloyd also learned about Fraction’s and other codefendants’ gang affiliations. Fraction told Lloyd that he was a Mickey Cobra and that his tattoo of a six-pointed star with a slash through the middle symbolized his previous membership in the Gangster Disciples gang. Lloyd learned from Cobbins that although Cobbins was a Four Corner Hustler, he associated with the Mickey Cobras in St. Cloud. Lloyd testified that he understood that members of rival gangs tended to associate with one another away from Chicago and worked cooperatively in drug trafficking.
Members of the Minnesota Gang Strike Force, which began investigating Fraction and the other codefendants in early 1998, also testified about Fraction’s drug trafficking and his affiliation with gangs. Sergeant David LeBeaux, regional commander of the St. Cloud office of the strike force, testified that Fraction told him that he had been a Gangster Disciple but was now a Mickey Cobra. Fraction showed LaBeaux two gang tattoos and told him that the tattoo with a jagged line running through it symbolized his break with the Gangster Disciples and his current affiliation with the Mickey Cobras. LaBeaux also testified that between April 15 and December 4, 1998, Fraction participated in 12 controlled buys of crack cocaine arranged by the strike force.
Fraction and the other codefendants also engaged in drug trafficking in the Fargo/Moorhead area. Craig Cook testified that he, Cobbins, and Eubanks sold crack cocaine for Fraction in the Fargo/Moorhead area. Fraction usually fronted the crack cocaine, and Cook and Eubanks paid him after it was sold. All three profited from these sales.
Marcus Markergard moved to the Fargo/Moorhead area in January 1997 and began buying crack cocaine from Fraction weekly. Fraction told Markergard that he had between 11 and 15 people selling crack cocaine for him. When Fraction was unavailable, Markergard would buy crack cocaine from Cobbins, Eubanks, Jones, or codefendants Nathaniel Collins and Nathaniel Wilson at codefendant Christina Rodriguez’s house. Rodriguez was a friend of Fraction’s. Like Segelstrom’s house in St. Cloud, Rodriguez’s Moorhead house became the center of Fraction’s drug-related activities. One of the many controlled buys the police made in the Fargo/Moorhead area took place in Rodriguez’s house.
Police investigators obtained photographs to document that Fraction’s drug trafficking activities were done in association with one or more gangs. Some of the photographs were taken by the police; others were provided by a confidential informant or obtained from the homes of Askew and Rodriguez. The photographs show Fraction and various codefendants associating with gang members, wearing gang symbols, using gang hand signs, and displaying gang tattoos.
The police also compiled gang writings and documents. In the trunk of Cobbins’s car, the police found a worn handwritten gang creed for the Four Corner Hustler gang. And during the search of another car, the police found a document titled “Criminneapolis Cobra Count,” which contained a list of names and telephone numbers divided into “Active” and “Passive” categories. The first entry under the “Active” category was Jones’s street name “Chico.” The corresponding telephone number traced back to Jones.
In May 2000, an investigator at the correctional facility in St. Cloud intercepted a letter from Fraction to an inmate containing a transcript of an FBI interview of Wilson. A handwritten notation on the envelope stated, “This is the sh-t that J is saying on the MC.” The investigator understood “MC” to be a reference to the Mickey Cobra gang. The same investigator subsequently intercepted another letter from Fraction to the same inmate. The letter contained several gang-related references, including references to the “C-Boys,” the “13-3 Boys,” “13/3 for Life,” and “‘5’ for Life.” “C-Boys” refers to Cobra Boys, 13/3 is code for MC or Mickey Cobra, and “5” refers to a five-point star gang symbol.
Minneapolis Police Lieutenant Jeffrey Rugel, who assisted in setting up the Minnesota Gang Strike Force and is now an investigative supervisor specializing in narcotics investigations involving gangs, testified that the Black P Stones and the Mickey Cobras met the criteria necessary to be considered a gang under Minnesota law; each had at least three or four members, each had a common sign or symbol, and the members of each were engaged in a pattern of criminal activity. He also testified that in Minnesota, the Mickey Cobras and the Black P Stones are partners in the facilitation of criminal activity. According to Rugel, Fraction and several of the codefendants met a number of the criteria used for documenting gang involvement.
The state charged Fraction, Cobbins, and nine others with racketeering and various counts of controlled-substance crime committed for the benefit of a gang. After a three-week trial, a jury found Fraction guilty of racketeering and four counts of controlled-substance crime committed for the benefit of a gang. The district court ranked Fraction’s racketeering conviction as a severity level IX offense and sentenced him concurrently to 150 months on the racketeering offense and 68, 90, 110, and 170 months on the controlled-substance convictions. This appeal followed.
D E C I S I O N
Fraction first argues that the prosecutor committed misconduct by conditioning a renewed plea offer on Cobbins also pleading guilty. We disagree.
An appellate court will reverse a conviction on the ground of prosecutorial misconduct only if the misconduct was “inexcusable and so serious and prejudicial that a defendant’s right to a fair trial is denied.” State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996) (citation omitted). In cases involving less-serious prosecutorial misconduct, an appellate court will reverse only if the misconduct substantially influenced the jury to convict. See State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974). The prosecutor did not commit misconduct in this case.
In February 2001, Fraction accepted a plea offer under which he would plead guilty to one count of racketeering and one count of first-degree controlled-substance crime for the benefit of a gang, in exchange for a jointly recommended 98-month prison sentence. The state withdrew its offer at the plea hearing after Fraction failed to accept responsibility for the crimes to which he had agreed to plead guilty. At the district court’s request, the state noted on the record, and Fraction acknowledged, that the plea offer had expired.
On the first day of trial, the state renewed its initial plea offer but made it contingent on Cobbins also pleading guilty. Fraction objected to the new offer, but did not move the court pursuant to Minn. R. Crim. P. 15.07 to accept the original offer. Fraction now claims that the conditional plea was unfair and amounted to prosecutorial misconduct. But Fraction has offered no legal basis for his claim.
A defendant does not have a constitutional right to a plea agreement. Weatherford v. Bursey, 429 U.S. 545, 562, 97 S. Ct. 837, 846 (1977). As a corollary, the state has no corresponding duty to negotiate a plea agreement and does not violate a defendant’s rights either by requiring a defendant to go to trial or by conditioning a plea offer. See State v. Andrews, 282 Minn. 386, 391-92, 165 N.W.2d 528, 531-32 (1969).
Standing alone, a plea agreement
is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.
Mabry v. Johnson, 467 U.S. 504, 507, 104 S. Ct. 2543, 2546 (1984). A plea agreement is typically the result of quid pro quo negotiations, whereby the defendant benefits from a reduced charge and the state benefits from the avoidance of the risk of acquittal and the time and expense a trial entails. See State v. Hoffa, 511 N.W.2d 462, 464 (Minn. App. 1994) (stating that “one of the benefits the prosecuting attorney gains from a plea bargain is reduced demand for limited prosecution resources”).
By waiting until after the state had completed its trial preparation to accept the state’s initial plea offer, Fraction deprived the state of the major benefit of its original offer and eliminated any incentive for the prosecutor to renew the offer in its original form. This court has clearly stated that
[i]t is not a manifest injustice to reject a guilty plea from a defendant who first refuses to accept a plea offer and then waits until the day of trial to try to take advantage of the rejected offer, thereby depriving the state of much of the benefit of plea bargaining.
Id. Fraction had ample opportunity to accept the state’s original plea offer; instead, he opted to reject it, with full knowledge that the offer would expire and would not be renewed. The state was thus entirely within its rights in subsequently conditioning its renewed plea offer on Cobbins also pleading guilty. We can find no basis for Fraction’s claim that the prosecutor committed misconduct or otherwise acted unfairly.
Fraction next argues that the district court denied him his constitutional right to a fair and impartial jury by refusing to remove a prospective juror for cause after the juror indicated in a questionnaire that he “lived around black people [for three years] and they just hang around and do nothing.”
In determining whether to dismiss a potential juror for cause, the district court must decide whether the juror “can set aside his or her impression or opinion and render an impartial verdict.” State v. Drieman, 457 N.W.2d 703, 708 (Minn. 1990) (citation omitted). Because a determination of impartiality is essentially one of credibility, and the district court is in the best position to evaluate the testimony and demeanor of potential jurors, we review a district court’s refusal to remove a juror for cause with special deference. State v. Logan, 535 N.W.2d 320, 323 (Minn. 1995). Accordingly, we will not lightly substitute our judgment for that of the district court. Drieman, 457 N.W.2d at 708-09.
The party seeking to reverse the district court’s refusal to dismiss a juror for cause bears the burden of showing that (1) the prospective juror was subject to challenge for cause and (2) actual prejudice resulted from the district court’s refusal to remove the prospective juror. State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983). Because the prospective juror in this case made a negative stereotypical statement about African Americans, he was unquestionably subject to challenge for cause. But Fraction has not established that he was actually prejudiced by the district court’s refusal to remove the prospective juror.
Both the prosecutor and defense counsel extensively questioned the juror about whether he could set aside his experiences with African Americans and be a fair and impartial juror in a case involving an African-American defendant. On at least seven occasions, the juror stated unequivocally that he could be fair and impartial. He indicated that he would “listen to the evidence and make [his] decision from there.” He also indicated that his previous experiences with African Americans, which occurred 15 years prior, “will not affect me here in court” and that he would apply the law equally to white and black people.
Based on the juror’s unequivocal responses to extensive questioning by the prosecutor and defense counsel, we must conclude that the district court did not abuse its discretion in concluding that the juror could put aside any impressions he previously formed about African Americans and render a fair and impartial verdict based on the evidence presented in court. While we may have exercised our discretion differently, the record does not support a determination that the district court abused its discretion.
Relying on foreign-jurisdiction and federal law, Fraction argues that a racially biased person should simply not be allowed to sit on a jury because racial bias is a “defect in reasoning” and the usual test for removing a juror for cause is not adequate to overcome this defect. See, e.g., Tobias v. Smith, 468 F. Supp. 1287, 1291 (W.D.N.Y. 1979); Walls v. Kim, 549 S.E.2d 797, 799 (Ga. Ct. App. 2001); State v. Witherspoon, 919 P.2d 99, 101 (Wa. Ct. App. 1996). In essence, Fraction argues for the adoption of the “implied-bias doctrine,” under which a finding of bias is not contingent on the district court’s assessment of a prospective juror’s partiality but is automatically presumed. See State v. Anderson, 603 N.W.2d 354, 357 (Minn. App. 1999), review denied (Minn. Mar. 14, 2000). This court has previously rejected the implied-bias doctrine Fraction advances, however. Id.
It is noteworthy that the district court dismissed 43 prospective jurors for cause sua sponte and granted four of the defendants’ five other motions to strike particular jurors for cause. The court, for example, struck a prospective juror who indicated that because of the loud and boisterous behavior of African Americans in her neighborhood, it would be very difficult for her to be fair and impartial. The juror further stated that she was fearful and that if one or more defendants belonged to a gang, it was more likely that they committed the charged crimes. The court’s decision to remove this juror for cause suggests that the court was mindful of Fraction’s legitimate concerns about racially biased jurors.
We also note that Fraction and Cobbins had a total of ten peremptory strikes between them. Fraction could have used one of those peremptory strikes to remove the juror in question if he in fact believed that he would be prejudiced by the juror’s presence on the panel. Cf. State v. Barlow, 541 N.W.2d 309, 312-13 (Minn. 1995) (holding that defendant forced to use peremptory challenge to strike prospective juror who should have been removed for cause was not denied his right to an impartial jury).
Fraction next argues that the jury instruction on the enterprise element of the racketeering charge constitutes plain error. We conclude that the instruction was erroneous but the error was harmless. Under the racketeering statute, whoever is “employed by or associated with an enterprise and intentionally participates in the affairs of the enterprise by participating in a pattern of criminal activity” is guilty of a crime. Minn. Stat. § 609.903, subd. 1(1) (1998). The statute defines enterprise as
[a] sole proprietorship, partnership, corporation, trust, or other legal entity, or a union, governmental entity, association, or group of persons, associated in fact although not a legal entity, and includes illicit as well as legitimate enterprises.
In 1994, the supreme court ruled that, for purposes of the racketeering statute, an “enterprise” is characterized by (1) a common purpose among its members, (2) an ongoing and continuing structure, and (3) activities that extend beyond the commission of the underlying criminal offenses. State v. Huynh, 519 N.W.2d 191, 196 (Minn. 1994). The supreme court directed that in addition to the pertinent statutory provisions, “henceforth, the jury should also be instructed on the characterizations of an enterprise.” Id. at 197.
During the charge conference, Fraction asked the district court to modify the proposed enterprise instruction to reflect the Huynh court’s interpretation of the term. Specifically, Fraction asked the district court to instruct the jury that a Racketeer Influenced and Corrupt Organizations (RICO) enterprise must be “ongoing and continuing.” Cobbins agreed with Fraction’s request, noting that it was consistent with federal law. But the state opposed the request, arguing that the proposed instruction, which provided only the statutory definition, was consistent with the jury-instruction guidelines. Inexplicably, the state also argued that the Huynh test was not applicable at the trial court level because courts were divided on whether an enterprise is the sum of the predicate crimes. The state noted: “[this is] an appellate issue * * * [rather than] something that should be in front of the jury.” The district court took the matter under advisement.
Without further discussion on the record, the district court relied on 10A Minnesota Practice, CRIMJIG 30.06 (1999) and gave the jury the statutory definition of “enterprise,” without the “ongoing and continuing” language Fraction had requested. The district court instructed the jury that “[a]n ‘enterprise’ is an association or group of persons associated in fact, although not a legal entity, and includes illicit as well as legitimate enterprises.” Fraction did not formally object before the jury was charged. Accordingly, in his brief and at oral argument before this court, he argued that the district court committed plain error by failing to instruct the jury on the characteristics that distinguish a RICO enterprise. But as a result of this court’s questioning at oral argument, Fraction argued in his supplemental brief, which he submitted after argument, that this court should employ an abuse-of-discretion standard in reviewing the enterprise instruction.
Generally, a defendant’s failure to object to the court’s refusal to give a proposed jury instruction before the jury is charged results in waiver of the right to raise the issue on appeal. State v. Glowacki, 630 N.W.2d 392, 398 (Minn. 2001). In this case, however, a close review of the transcript convinces us that although Fraction did not formally object to the court’s instruction before the court charged the jury, he preserved the issue for appeal by raising a specific and clearly articulated objection to the substance of the instruction during the charge conference. See State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001) (concluding that objection made at charge conference sufficiently preserved jury-instruction issue for appeal even though objection not clearly articulated); cf. State v Burg, 648 N.W.2d 673, 675-77 (Minn. 2002) (reviewing challenge to jury instruction under plain-error standard where defendant made motion in limine to have trial court determine that certain language did not constitute element of offense charged but did not object to instruction that was inconsistent with in limine request before jury was charged). Accordingly, we review the district court’s refusal to instruct the jury on the characteristics of an enterprise under an abuse-of-discretion standard.
District courts have “considerable latitude” in the selection of language for jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (citation omitted). But the district courts’ considerable latitude notwithstanding, a jury instruction is erroneous if it materially misstates the law. Kuhnau, 622 N.W.2d at 556. In determining whether an instruction materially misstates the law, we review the instructions in their entirety to determine whether they fairly and adequately explained the law. Id. at 555-56.
The district court’s “enterprise” instruction materially misstated the law and is, therefore, erroneous. The instruction did not address, expressly or impliedly, the three elements of an enterprise the state was required to prove beyond a reasonable doubt under Huynh. The jury could not have inferred from the instruction it received that the enterprise needed to be “ongoing and continuing” or that it had to have activities extending beyond the underlying drug trafficking offenses. Under the instruction the district court gave, any association can be an enterprise, no matter how loose or temporary. The instruction thus created precisely the risk the supreme court sought to guard against by adopting the three-part test, namely, the risk of guilt by association or of punishing “run-of-the-mill” criminals who associate for the commission of sporadic rather than “organized” crime. See Huynh, 519 N.W.2d at 195-97 (recognizing dangers of “casting too wide a net and catching the unorganized criminal” and expanding RICO into enhancement statute for recidivists).
The state argues that the instruction correctly stated the law because it was based on CRIMJIG 30.06 and was virtually identical to the statutory definition of the term “enterprise.” But the instruction did not incorporate the supreme court’s definition of the term, which reflects the scope of the racketeering offense. As a result, the district court’s reliance on the CRIMJIG and the statutory language, which is generally appropriate, was misplaced. The state also argues that the Huynh court’s directive regarding how district courts should instruct the jury henceforth is dictum because Huynh was not a jury-instruction case. Although we agree with the state’s assessment that Huynh’s directive was dictum, the district court was not at liberty to disregard it when instructing the jury on the very same element Huynh addresses. See In re Estate of Bush, 302 Minn. 188, 207, 224 N.W.2d 489, 501 (1974) (stating supreme court dictum is entitled to “considerable weight” because it is expression of court’s opinion); see also Brua v. Olson, 621 N.W.2d 472, 475 (Minn. App. 2001), review denied (Minn. Mar. 27, 2001); State v. Busse, 616 N.W.2d 760, 763-64 (Minn. App. 2000), rev’d on other grounds, 644 N.W.2d 79 (Minn. 2002). Accordingly, the district court’s instruction on the enterprise element of the racketeering charge was erroneous.
Nevertheless, the error does not require a new trial because it was harmless. See Kuhnau, 622 N.W.2d at 558-59 (stating that erroneous instruction does not require new trial if error was harmless). An error in jury instructions is harmless if it had no significant impact on the verdict beyond a reasonable doubt. Id. In this case, we conclude beyond a reasonable doubt that the error had no significant impact on the verdict. Notwithstanding the instruction, both the prosecutor and defense counsel argued the Huynh elements in their closing arguments. The prosecutor argued that Fraction was running an ongoing business that had a distinct, albeit informal, structure. Defense counsel argued that the structure of the enterprise had to extend beyond what was necessary to commit the predicate crimes and that the evidence did not show the required structure—it showed only that Fraction was dealing drugs in a market where there were other drug dealers. Additionally, as we discuss below, the evidence overwhelmingly establishes the existence of a RICO enterprise within the meaning of Huynh. Accordingly, the error in the enterprise instruction was harmless.
Fraction also challenges his convictions of racketeering and first-degree controlled-substance crime for the benefit of a gang, claiming that the evidence was insufficient to support them. When reviewing a sufficiency-of-the-evidence claim, our review is limited to a painstaking analysis of the record to determine whether the evidence, viewed in the light most favorable to the verdict, supports the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). In so doing, we assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offenses. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). On this record, the jury could reasonably conclude that Fraction was guilty of the charged offenses.
A. Controlled-substance crime for the benefit of a gang
Fraction first argues that the evidence is insufficient to support his conviction of first-degree controlled-substance crime for the benefit of a gang because the state did not prove beyond a reasonable doubt that his drug-trafficking activities were for the benefit of a gang. We disagree.
The crime-committed-for-the-benefit-of-a-gang statute provides, in relevant part, as follows:
Minn. Stat. § 609.229, subd. 2 (1998). A “criminal gang” is “any ongoing organization, association, or group of three or more persons, whether formal or informal” that engages in a pattern of criminal activity. Minn. Stat. § 609.229, subd. 1 (1998). A person commits a crime for the benefit of a gang only if the person has the specific intent to promote, further, or assist in criminal conduct by gang members. State v. Mireles, 619 N.W.2d 558, 562 (Minn. App. 2000) (stating that specific-intent requirement limits reach of statute to individuals who engage in criminal conduct with specific intent to promote, further, or assist in criminal activity by gang members), review denied (Minn. Feb. 15, 2001). Thus, to prove that Fraction acted for the benefit of a gang, the state was required to prove that Fraction engaged in criminal activity in association with a criminal gang and with the intent to further or assist in the gang members’ criminal conduct. See State v. Chuon, 596 N.W.2d 267, 270 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).
Fraction admits that the state introduced sufficient evidence that he was a gang member and a drug dealer. But he argues that he was an independent seller, rather than part of a criminal gang, and that he did not engage in the sale of drugs with the specific intent to promote, further, or assist in criminal activity by a criminal gang. The evidence shows otherwise.
The state sufficiently established a well-organized pattern of drug trafficking in which Fraction participated in association with other gang members. The state’s witnesses testified that Fraction and other codefendants were members of subgroups of a Chicago-based gang who moved to Minnesota to find more profitable markets for their drug-trafficking activities. Although from rival gangs, away from Chicago, Fraction and other codefendants associated with one another in “cliques” to work cooperatively in the transport and distribution of illegal narcotics and to facilitate other criminal activities.
Fraction obtained crack cocaine for resale from fellow gang members who profited by supplying him with crack cocaine. Fraction’s principal supplier, for example, made as much as $32,000 a month from drug sales in the St. Cloud area alone. Fraction then supplied crack cocaine both to users and to fellow gang members, who, in turn, profited by reselling the crack cocaine to others. When Fraction was unavailable, other gang members took his place and carried on the drug trafficking. They either made sales on their own or referred customers to other codefendants. When Fraction was around, they assisted him by driving him to various drug transactions. As a group, Fraction and his codefendants expanded their operations to the Fargo/Moorhead area, where they established substantially the same organizational pattern they followed in St. Cloud.
The jury could reasonably conclude from this evidence that Fraction’s drug-trafficking activities were committed in association with members of a criminal gang and with the intent to further or assist in criminal conduct by members of the gang. The evidence was thus sufficient to support Fraction’s conviction of controlled-substance crimes committed for the benefit of a gang.
Fraction next argues that the evidence was insufficient to sustain his racketeering conviction because it did not establish beyond a reasonable doubt that he was employed by or associated with an “enterprise” as defined in Huynh. We disagree.
A person is guilty of a crime under Minnesota’s RICO Act if the person is
employed by or associated with an enterprise and intentionally conducts or participates in the affairs of the enterprise by participating in a pattern of criminal activity.
Minn. Stat. § 609.903, subd. 1(1). An enterprise entails more than the undertaking of the predicate acts or the minimal association that surrounds those acts. Huynh, 519 N.W.2d at 194, 196 n.7 (citing United States v. Turkette, 452 U.S. 576, 583, 101 S. Ct. 2524, 2528 (1981) (stating that an enterprise is more than sum of its predicate acts)). A RICO enterprise is distinguished by three characteristics: (1) members who share a common purpose, (2) an ongoing and continuing structure or decision-making arrangement, and (3) activities that extend beyond the commission of the underlying criminal acts either to coordinate the underlying criminal acts into a pattern of criminal activity or to engage in other activities. Id. at 196. Proof of all three characteristics is necessary to ensure that criminal enterprises, RICO’s target, are distinguished from individuals who associate for the commission of sporadic crime. See id.
Fraction does not dispute that the state sufficiently established that he and the other codefendants shared the common purpose of selling crack cocaine. But he argues that his association with the other codefendants was not an enterprise because it lacked (1) an ongoing organization that functioned as a continuing unit and (2) activities that extended beyond the commission of the underlying acts either to coordinate the underlying criminal acts into a pattern of criminal activity or to engage in other activities. We disagree.
1. Continuity of Structure and Personnel
To constitute an “enterprise,” an organization must have an ongoing organizational structure and associates who function as a continuing unit. Id. at 196. Continuity of structure exists when there is “an organizational pattern or system of authority that provides a mechanism for directing the group’s affairs on a continuing, rather than an ad hoc, basis.” United States v. Kragness, 830 F.2d 843, 856 (8th Cir. 1987) (citations omitted). Continuity of personnel exists when “the associational ties of those charged with a RICO violation amount to an organizational pattern or system of authority.” Id. (citing United States v. Lemm, 680 F.2d 1193, 1199 (8th Cir. 1982)).
The evidence sufficiently established the requisite continuity of structure and personnel. Contrary to Fraction’s argument, Fraction and the other codefendants were more than “friends and acquaintances who happened to deal drugs.” They were instead a well-structured group, marked by unity, and animated by a shared purpose. The group had a clear system of authority that had Fraction and Askew at the helm. And the group had a hierarchical structure that included suppliers, a middleman, and retailers, each with established duties. The evidence showed that the codefendants depended on one another structurally to ensure a pattern of continuous drug sales in two distinct markets. When Fraction was out of town, for example, he turned over his pager and cell phone to Cobbins, who continued the group’s drug-trafficking activities seamlessly. And when Cobbins was unavailable, Segelstrom answered the pager and either made sales on her own or referred customers to Buckner.
The evidence also showed continuity of personnel. Like the scope of the enterprise, which remained the same over time, the participants and their roles remained the same over time: Fraction and Askew were suppliers; Fraction was also a middleman and a retailer; Buckner, Collins, Eubanks, Jones, and Wilson were retailers; Cobbins was a retailer and took Fraction’s place in the hierarchy when Fraction was unavailable; Segelstrom and Rodriguez provided “safe houses” for drugs and a point of entry into the St. Cloud and Fargo/Moorhead markets. When the group extended its activities to the Fargo/Moorhead area, the hierarchical structure and the pattern of drug trafficking continued essentially unchanged, with Fraction and Askew serving as suppliers and taking a leading role and the remaining members serving as retailers. The evidence was thus sufficient to allow the jury to conclude that Fraction and his associates had established a continuing and ongoing organization in terms of both structure and personnel.
2. Activities Extending Beyond the Underlying Criminal Acts
Fraction also argues that the state failed to prove that the alleged enterprise engaged in activities that extended beyond the commission of the underlying criminal acts either to coordinate those acts into a pattern of criminal activity or to undertake other activities. Once again, we disagree.
To prove the third element of a RICO enterprise, the state was required to establish that in addition to the activities necessary to commit the charged crack cocaine sales, the organization in which Fraction participated engaged either in activities designed to coordinate those sales into a pattern of criminal activity or in other activities. See Huynh, 519 N.W.2d at 197 (holding that group’s activities satisfied RICO-enterprise requirement where activities extended beyond extortion to routing extorted monies through different banking institutions and endorsees); cf. State v. Kelly, 519 N.W.2d 202, 205 (Minn. 1994) (holding that defendant’s pimping activities insufficient to constitute RICO enterprise where activities did not extend to coordinating predicate criminal acts of soliciting, promoting, and receiving prostitution profits).
We conclude that the state proved group activity extending far beyond the four predicate crack cocaine offenses occurring in May 1999, October 1998 to January 1999, June to July 1998, and December 1997 to January 1998. The state’s evidence established that members of the organization coordinated a wide drug-distribution network that extended from St. Cloud to Fargo/Moorhead. Members of the organization transported crack cocaine from one city to another, accompanied each other on buying trips, used women to have a point of entry into new markets, and maintained two households in different cities to facilitate and sustain the enterprise. High-level members provided food and housing for lower-level members, and lower-level members took care of business when high-level members were unavailable. These activities were not necessary to the commission of the charged crack cocaine offenses; they were instead necessary to coordinate the predicate crack cocaine offenses into a pattern of criminal activity.
Viewed in the light most favorable to the verdict, the evidence was thus sufficient to permit the jury to conclude, beyond a reasonable doubt, that Fraction participated in an ongoing and continuing criminal enterprise that engaged in activities beyond those that were necessary merely to commit the predicate racketeering offenses.
Fraction next argues that the district court abused its discretion by ranking his racketeering offense at severity level IX. This claim also fails.
Racketeering is an unranked offense under the Minnesota Sentencing Guidelines. See Minn. Sent. Guidelines cmt. II.A.03. When an offense is unranked, judges “should exercise their discretion by assigning * * * a severity level which they believe to be appropriate.” Minn. Sent. Guidelines cmt. II.A.05. In selecting a severity level, judges should consider (1) the gravity of the specific conduct underlying the offense, (2) the severity level for similarly ranked offenses, and (3) the conduct of similarly-situated offenders. State v. Kenard, 606 N.W.2d 440, 443 (Minn. 2000). No single factor is controlling and the list of factors is not meant to be exhaustive. Id. While the district court has discretion in sentencing, these factors can help guide the exercise of that discretion. Id.
The district court carefully considered the Kenard factors in ranking Fraction’s offense at severity level IX. Specifically, the court considered
the length of time over which [Fraction’s] crimes were committed; the wide geographic territory that was controlled by this organized business; the number of sales; the number of persons affected, both as buyers, users and those related to those people; that there were children involved in the environment in which the crimes occurred; the large amount of drugs that passed from person to person; and the sophistication of the operation.
Fraction argues that the district court abused its discretion because similar racketeering crimes have previously been assigned an offense-severity level of VIII. See, e.g., State v. Kujak, 639 N.W.2d 878, 881 (Minn. App. 2002), review denied (Minn. Mar. 25, 2002); Huynh, 519 N.W.2d at 198. The district court considered this factor and found that the severity levels of Fraction’s underlying crimes were higher than those of the defendants’ in the other cases, thereby warranting assigning a greater severity level to the racketeering offense. In Huynh, for example, the underlying crimes were ranked at a severity level of III and the racketeering offense was ranked at VIII. 519 N.W.2d at 198. In contrast, the crimes underlying Fraction’s racketeering offense were ranked at a severity level of VIII, VII, and VI, respectively.
Fraction also argues that the severity levels assigned to his crimes should be lower because his codefendants’ crimes were ranked at a lower offense-severity level. Askew’s racketeering offense, for example, was ranked at a severity level of VIII. In considering the conduct of similarly-situated offenders, however, the district court determined that the conduct of Fraction’s codefendants did not reach “the level of sophistication, frequency and criminality of [Fraction’s].” With respect to Askew, the district court stated that while his conduct was most similar to Fraction’s, “[t]he court recognizes that Mr. Askew received a severity level eight designation pursuant to his plea agreement.”
In light of these considerations, the district court did not abuse its discretion by assigning Fraction’s racketeering offense a severity level of IX.
Fraction concedes that multiple sentencing is permissible under Minn. Stat. § 609.910, subd. 1 (1998). But he argues that the district court abused its discretion by using his racketeering conviction and each subsequent controlled-substance conviction to increase his criminal-history score using the Hernandez method of computing a defendant’s criminal-history score. On review, this court will not interfere with the district court’s exercise of its broad discretion in sentencing as long as the sentence is authorized by law. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Fraction’s sentence was not authorized by law.
The Hernandez method allows a court sentencing a defendant on the same day for multiple convictions to assign one point for each felony conviction, provided the offenses are not part of a single behavioral incident or course of conduct. State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981). The Hernandez method may not be used to increase the criminal history score for the subsequent offense if the offenses arose from a single course of conduct within the meaning of Minn. Stat. § 609.035. State v. Hartfield, 459 N.W.2d 668, 670 (Minn. 1990).
Crimes are part of a single behavioral incident “[w]hen one crime is committed with the intent of facilitating another or is but a means toward committing another.” State v. Huynh, 504 N.W.2d 477, 483 (Minn. App. 1993). In Huynh, this court held that Huynh’s racketeering and extortion offenses were part of a single behavioral incident because the extortion offenses were a means toward committing the RICO offense. Here, too,Fraction’s controlled-substance offenses were a means toward facilitating and sustaining the RICO enterprise. Fraction’s controlled-substance and racketeering crimes were thus part of a single behavioral incident, and multiple sentences were not authorized by Minn. Stat. § 609.035. Although the statutory exception for racketeering offenses in Minn. Stat. § 609.910, subd. 1, permits multiple sentencing, the statutory exception will not support use of the Hernandez method. See id. at 484 (citing Hartfield, 459 N.W.2d at 670). Thus, the district court abused its discretion by using the Hernandez method to increase Fraction’s criminal-history score. Accordingly, we vacate the sentence and remand for resentencing.
Fraction claims that Minn. Stat. § 609.229 (1998), crime committed for the benefit of a gang, violates the equal protection clause of the Minnesota Constitution because of its disparate effect on people of color. The supreme court recently resolved this issue and held that Minn. Stat. § 609.229 does not deny equal protection under the Minnesota Constitution. State v. Frazier, 649 N.W.2d 828, 839 (Minn. 2002). Based on the doctrine of stare decisis, we decline to review Fraction’s equal protection challenge. See State v. DeShay, 645 N.W.2d 185, 189 (Minn. App. 2002) (declining review because stare decisis doctrine directs court of appeals to adhere to former decisions to ensure stability in the law).
Fraction also raises several issues in his pro se supplemental brief, including issues regarding lack of jurisdiction, double jeopardy, judicial misconduct, denial of the right to confront witnesses, insufficiency of the evidence, and denial of the right to a speedy trial. We have carefully reviewed the record and the applicable law and find no merit in Fraction’s pro se arguments.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.