HB0267

HOUSE BILL 267

54th legislature - STATE OF NEW MEXICO - second session, 2020

INTRODUCED BY

Daymon Ely and Marian Matthews and Dayan Hochman-Vigil

AN ACT

RELATING TO PUBLIC SAFETY; ENACTING THE CONTINUING DRUG ENTERPRISE ACT; ENHANCING THE PENALTIES FOR CERTAIN CONTROLLED SUBSTANCE-RELATED ACTIVITIES IN THE RACKETEERING ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. A new section of the Criminal Code is enacted to read:

"[NEW MATERIAL] SHORT TITLE.--Sections 1 through 4 of this act may be cited as the "Continuing Drug Enterprise Act"."

SECTION 2. A new section of the Criminal Code is enacted to read:

"[NEW MATERIAL] DEFINITIONS.--As used in the Continuing Drug Enterprise Act:

A. "continuing drug enterprise" means an ongoing series of violations that are knowingly undertaken by a person in the course of an ongoing criminal conspiracy with five or more people;

B. "ongoing series of violations" means three or more separate serious felony drug offenses, at least two of which were committed within three years of each other and all of which were committed after the effective date of the Continuing Drug Enterprise Act;

C. "organizer" means a person who organizes, supervises or manages a continuing drug enterprise and who obtains substantial income or resources from the person's role in the continuing drug enterprise; and

D. "serious felony drug offense" means conduct punishable as felony trafficking in controlled substances pursuant to Section 30-31-20 NMSA 1978 or felony distribution of controlled substances pursuant to Section 30-31-22 NMSA 1978, or any equivalent crime committed in another state or any equivalent crime committed contrary to federal law, except for conduct punishable for involving felony trafficking or felony distribution of marijuana, tetrahydrocannabinol or chemical derivatives of tetrahydrocannabinol."

SECTION 3. A new section of the Criminal Code is enacted to read:

"[NEW MATERIAL] PROHIBITED ACTIVITIES--CRIMINAL PENALTIES--APPLICABILITY OF OTHER CIVIL AND CRIMINAL LAWS.--

A. It is unlawful for a person to commit a serious felony drug offense that is part of a continuing drug enterprise while that person is an organizer of that continuing drug enterprise. For purposes of determining whether someone is an organizer of a continuing drug enterprise, the jury, or a judge if the jury has been waived by a defendant, shall consider the following:

(1) the defendant's exercise of decision-making authority in the continuing drug enterprise;

(2) the nature and scope of the illegal activity of the continuing drug enterprise and the defendant's degree of control and authority over those in the continuing drug enterprise;

(3) the nature of the defendant's participation in the commission of serious felony drug offenses;

(4) the degree of participation in planning or organizing the serious felony drug offenses;

(5) the recruitment of accomplices;

(6) the nature of the defendant's rights to the profits of the continuing drug enterprise or any property accumulated in the course of the continuing drug enterprise;

(7) the acquisition of substantial income or resources from the defendant's role in the continuing drug enterprise; and

(8) any other information that demonstrates the defendant's ability and control over the operation of the continuing drug enterprise.

B. Notwithstanding the provisions of Section 30-28-2 NMSA 1978, a person who violates Subsection A of this section is guilty of a first degree felony.

C. Nothing contained in the Continuing Drug Enterprise Act precludes civil or criminal remedies provided by the Racketeering Act or the Controlled Substances Act or by any other New Mexico law. Those remedies are in addition to and not in lieu of remedies provided in the Continuing Drug Enterprise Act."

SECTION 4. A new section of the Criminal Code is enacted to read:

"[NEW MATERIAL] ENFORCEMENT AUTHORITY.--The attorney general and the district attorneys of New Mexico shall each have authority to enforce the provisions of the Continuing Drug Enterprise Act by initiating investigations, assisting grand juries, obtaining indictments, filing information and complaints and prosecuting criminal cases."

SECTION 5. Section 30-42-4 NMSA 1978 (being Laws 1980, Chapter 40, Section 4, as amended) is amended to read:

"30-42-4. PROHIBITED ACTIVITIES--PENALTIES.--

A. It is unlawful for a person who has received proceeds derived, directly or indirectly, from a pattern of racketeering activity in which the person has participated, to use or invest, directly or indirectly, any part of the proceeds or the proceeds derived from the investment or use in the acquisition of an interest in, or the establishment or operation of, an enterprise. Whoever violates this subsection is guilty of a second degree felony; provided that the person is guilty of a first degree felony if the racketeering activity includes an act that is chargeable or indictable as:

(1) trafficking in controlled substances pursuant to Section 30-31-20 NMSA 1978, except trafficking of marijuana, tetrahydrocannabinol or chemical derivatives of tetrahydrocannabinol;

(2) distribution of controlled substances or controlled substance analogs pursuant to Section 30-31-21 NMSA 1978; or

(3) distribution of controlled substances or controlled substance analogs pursuant to Section 30-31-22 NMSA 1978, except distribution of marijuana, tetrahydrocannabinol or chemical derivatives of tetrahydrocannabinol.

B. It is unlawful for a person to engage in a pattern of racketeering activity in order to acquire or maintain, directly or indirectly, an interest in or control of an enterprise. Whoever violates this subsection is guilty of a second degree felony; provided that the person is guilty of a first degree felony if the racketeering activity includes an act that is chargeable or indictable as:

(1) trafficking in controlled substances pursuant to Section 30-31-20 NMSA 1978, except trafficking of marijuana, tetrahydrocannabinol or chemical derivatives of tetrahydrocannabinol;

(2) distribution of controlled substances or controlled substance analogs pursuant to Section 30-31-21 NMSA 1978; or

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. Whoever violates this subsection is guilty of a second degree felony; provided that the person is guilty of a first degree felony if the racketeering activity includes an act that is chargeable or indictable as:

(1) trafficking in controlled substances pursuant to Section 30-31-20 NMSA 1978, except trafficking of marijuana, tetrahydrocannabinol or chemical derivatives of tetrahydrocannabinol;

(2) distribution of controlled substances or controlled substance analogs pursuant to Section 30-31-21 NMSA 1978; or

D. It is unlawful for a person to conspire to violate the provisions of Subsections A through C of this section. Whoever violates this subsection is guilty of a third degree felony; provided that the person is guilty of a first degree felony if the racketeering activity includes an act that is chargeable or indictable as:

(1) trafficking in controlled substances pursuant to Section 30-31-20 NMSA 1978, except trafficking of marijuana, tetrahydrocannabinol or chemical derivatives of tetrahydrocannabinol;

(2) distribution of controlled substances or controlled substance analogs pursuant to Section 30-31-21 NMSA 1978; or

E. Whoever is convicted of a violation of Subsection A, B, C or D of this section in addition to the prescribed penalties shall forfeit to the state of New Mexico:

(1) any interest acquired or maintained in violation of the Racketeering Act; and

(2) any interest in, security of, claim against or property or contractual right of any kind affording a source of influence over an enterprise that the person has established, operated, controlled, conducted or participated in the conduct of in violation of the Racketeering Act.

F. The provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of property described in Subsection E of this section."

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