This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Antonio Bracy, petitioner,
State of Minnesota,
Filed December 10, 2002
Reversed and remanded
Winona County District Court
File No. K3-98-1278
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Charles E. MacLean, Winona County Attorney, Nancy L. Bostrack, Assistant County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN 55987 (for respondent)
John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Antonio Bracy, No. 182014, MCF-Stillwater, 970 Pickett Street North, Bayport, MN, 55003 (pro se appellant)
Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.
On appeal from the denial of his postconviction petition, appellant argues that the district court abused its discretion by: (1) refusing to reverse his conviction for racketeering for the benefit of a gang; (2) refusing to resentence him at a lower severity level; and (3) applying separate sentences for offenses which arose from the same conduct. We reverse appellant’s conviction for racketeering for the benefit of a gang and remand for resentencing.
Appellant Antonio Bracy was arrested on September 15, 1998, after a monitored exchange in which appellant sold crack cocaine to a police informant. This arrest came after a two-month investigation conducted by Winona law enforcement and the Minnesota Bureau of Criminal Apprehension (BCA). Also arrested were appellant’s friend and girlfriend. The investigation revealed that appellant, Antonio Johnson, and another friend had engaged in a collaborative effort to corner the crack cocaine market in Winona. The three men pooled money, each contributing about $1,000 per buy. Then Johnson traveled to Chicago to buy a large amount of crack cocaine from an unknown supplier. On his return, they divided the drugs equally and sold it to a list of customers. Customers contacted the dealers through pagers. If the paged dealer was unable to meet the customer, another would take his place. On occasion, appellant’s girlfriend, Tena Carpenter, made an exchange if appellant could not be present. The group’s goal was to become the exclusive crack supply for their shared customers. Although the customers were shared, and the three dealers combined their resources to buy crack in Chicago, each man kept the profits from individual sales for himself, no matter how much or how little each sold.
BCA agents enlisted one of appellant’s customers as an informant, and organized so-called “controlled buys” in which the informant paged appellant and used marked bills to buy crack cocaine from him. On two occasions, the informant paged appellant, but either Johnson or Carpenter arrived to exchange money for drugs. Finally, on the day of appellant’s arrest, the informant approached appellant outside his house and asked to buy crack. Appellant was arrested shortly after the sale.
After his arrest, appellant made statements to law enforcement acknowledging his involvement in drug sales with Johnson and another man, Mack Allen, who did not appear for trial. Appellant was charged with three counts of conspiracy to commit controlled-substance crime, one count of second-degree controlled-substance crime, aiding and abetting in aggregated cocaine sales, racketeering, and racketeering for the benefit of a gang. Co-conspirator Johnson, in exchange for his testimony, pled guilty to lesser charges.
Appellant was tried before a judge in November 1999. Johnson testified that he was a non-practicing member of the Gangster Disciples, but claimed that he knew appellant was affiliated with the gang before moving to Winona from Chicago when appellant was in the eighth grade. Johnson testified that the Chicago cocaine source was a member of the Gangster Disciples, but he did not testify that appellant had ever met that individual or that the drug sales were in any way related to gang membership. Law enforcement witnesses testified that appellant met at least three of the ten-point gang identification criteria used by police to identify potential gang members.
Appellant was found guilty on all counts. For sentencing purposes only, the three conspiracy crimes merged into the racketeering offense, which in turn merged into the racketeering for the benefit of a gang offense. Appellant was sentenced to 72 months for the second-degree controlled-substance crime and 93 months for the racketeering for the benefit of a gang offense. Appellant filed a direct appeal in May 2000, but it was dismissed by stipulation of the parties. Appellant filed his postconviction petition in August 2001. That petition was denied, and this appeal follows.
Appellant argues that the postconviction court abused its discretion by refusing to reverse his conviction for racketeering for the benefit of a gang. Because we agree that respondent failed to present sufficient evidence that: (1) appellant’s conduct amounted to racketeering; and (2) appellant’s criminal conduct was for the benefit of a gang, we reverse and remand for resentencing.
Under Minn. Stat. §609.903, subd. 1(1) (2000), a person is guilty of racketeering if that 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.” Caselaw has attempted to address this subjective definition. To avoid encompassing any run-of-the-mill criminal association, the courts have determined that to constitute an enterprise for racketeering purposes, the criminal activity must go beyond what is necessary to commit the predicate crimes. State v. Huynh, 519 N.W.2d 191, 195 (Minn. 1994).
Appellant’s predicate crimes are conspiracy to commit controlled-substance crime and aiding and abetting a controlled-substance crime. These crimes inherently (have to) involve some level of criminal association and coordination. For example, a conspiracy requires a person who
conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy.
Minn. Stat. § 609.175, subd. 2 (2000). We agree with appellant that in this case, his criminal activities do not independently exceed what would be necessary for him to have committed the predicate crimes of conspiracy and aiding and abetting a controlled-substance crime. The record indicates that appellant and his co-conspirators collaborated for the purpose of selling crack cocaine. There is no evidence of a formal hierarchy or anything more structured than the lowest sort of an informal organization. By definition, when two or more people plan "a job" or "a deal," they have to talk to each other and plan who will do what. That this happens in true racketeering operations does not mean that every time it happens, you have a true racketeering operation. The conduct in this record does not rise to the level of "racketeering" as defined by Minnesota caselaw. We reverse appellant’s conviction for racketeering on this basis.
Minn. Stat. § 609.229, subd. 2 (2000), allows for increased criminal penalties if a person is convicted of a crime “for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang.” The state must prove that: (1) the alleged gang meets the statutory definition of a criminal gang; (2) the defendant was a member of that gang; and (3) the crime was committed for the benefit of the gang. State v. Matelski, 622 N.W.2d 826, 832 (Minn. App. 2001), review denied (Minn. May 15, 2001).
Here, appellant’s conviction was for having committed his crimes for the benefit of the Gangster Disciples, a large Chicago-based street gang. The record indicates that some evidence was presented at trial “suggesting” appellant may have been a gang member in his early years (“early years” had to be just grade school years), before moving to Minnesota from Chicago. Evidence suggested that his co-conspirators might have had some association with the gang. The solid evidence indicates that appellant and his co-conspirators engaged in drug sales just for their own financial benefit. They pooled their money to buy crack cocaine in large amounts, and then sold it to their Winona customers. Each man kept his individual profits. While the evidence may support an inference that appellant had some unspecified association with the gang, the evidence does not support the needed statutory solid link between appellant’s crimes and the Gangster Disciples. Appellant’s conviction for racketeering for the benefit of a gang is reversed for lack of sufficient evidence connecting appellant’s criminal acts to a criminal gang.
Appellant argues to this court that even if his conviction for racketeering for the benefit of a gang be affirmed, he still should be resentenced at a lower severity level, claiming the district court abused its discretion in assigning his unranked racketeering offense a severity level of VIII. Because appellant’s conviction for racketeering for the benefit of a gang is reversed, this issue is moot.
Finally, appellant argues that the district court erred in sentencing him separately for both the racketeering for the benefit of a gang offense and for the second-degree controlled-substance offense, since the two offenses arose from the same conduct. Appellant asserts that if a person’s conduct constitutes more than one offense under the law, he may be punished for only one of these crimes. Minn. Stat. § 609.035, subd. 1 (2000).
After reversing the conviction for racketeering for the benefit of a gang, appellant is left with convictions for three counts of third-degree conspiracy to commit controlled-substance crimes, and one count of second-degree controlled-substance crime, aiding and abetting in the aggregate sales of cocaine. These convictions are not disturbed by this appeal. Appellant challenged only the racketeering for the benefit of a gang conviction. The district court found that the second-degree controlled-substance crime encompassed drug-sale incidents between July of 1998 and August of 1998. This crime, then, arises from the same conduct as the three conspiracy counts. Appellant can be sentenced only once for this conduct. See Minn. Stat. § 609.035 (single behavioral incident).
We remand to the district court for resentencing only on the second-degree controlled-substance offense as per this opinion.
Reversed and remanded.
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