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    ^CmEFJUSTKE


                                                     SUSAN L. CARLSON
                                                '^SUPREME COURT CLERK




         IN THE SUPREME COURT OF THE STATE OF WASHINGTON



   STATE OF WASHINGTON,                          NO. 94813-5

                            Petitioner,
                                                 EN BANC
           V.



   KENNETH A. LDvTVILLE, JR.,
                                                 Filed    AUG 1 6 2018
                            Respondent.


          GORDON McCLOUD, J.—^The State charged Kenneth Linville Jr. with

  leading a wave of burglaries throughout Thurston County. The State did so by

  charging Linville with one count of "leading organized crime," in violation of

  Washington's Criminal Profiteering Act (CPA), RCW 9A.82.060(l)(a), plus 137

  other offenses. Some of those 137 other offenses were crimes listed in RCW


  9A.82.010(4) as predicate offenses, which, when combined, form the requisite

  'pattern of criminal profiteering" on which the umbrella crime called "leading
State V. Linville (Kenneth A.), No. 94813-5


organized crime" is based. But some of these 137 other offenses were not listed in

RCW 9A.82.010(4) as predicate crimes at all.

       The question in this case is whether the CPA's "joinder bar" rule, RCW

9A.82.085, permits both predicate crimes and nonpredicate crimes to be joined in a

single "leading organized crime" information. That joinder bar statute says, "The

[Sjtate is barred from joining any offense other than the offense alleged to be part of

the pattern of criminal profiteering activity" in a single prosecution like this one for

leading organized crime. Id. Linville argues that this statute bars the State from

joining charges outside of the predicated offenses listed in RCW 9A.82.010(4) in

such a prosecution. Linville continues that because defense counsel did not move for

severance ofthe unlisted offenses based on RCW 9A.82.085, he received ineffective

assistance of counsel. The State argues that RCW 9A.82.085 does not limit joinder

to predicate offenses, as long as the unlisted offenses form part of the "pattern."

       The CPA's language supports Linville's interpretation, not the State's. The

comparable federal RICO' statute's language supports Linville's interpretation, not

the State's. And United States Supreme Court decisions interpreting the comparable

federal RICO statute's language support Linville's interpretation, not the State's. We




      'The Racketeer Influenced and Corrupt Organizations Act(RICO),Pub. L. No.91-
452, tit. IX, 84 Stat. 922, 941-48(1970)(codified as 18 U.S.C. §§ 1961-1968).
State V. Linville (Kenneth A.), No. 94813-5


therefore agree with the Court of Appeals' analysis that unlisted crimes cannot be

joined as part of a "pattern of criminal profiteering activity."

       Nevertheless, on this record, which is devoid of defense counsel's reasons(or

lack ofreasons)for choosing to defend against these crimes in one prosecution rather

than several, Linville fails to show ineffective assistance of counsel. We therefore

reverse and remand to the Court of Appeals for further proceedings in that court.

                                            Facts


       The State charged Linville with leading organized crime, RCW 9A.82.060,

plus 137 other crimes.^ Linville's defense counsel moved to sever the charges into a

series of trials under Criminal Rule (CrR)4.4's discretionary severance standard. 1

Verbatim Report ofProceedings(May 18, 2015)at 26-34. The trial court denied this

motion because defense counsel failed to show specific prejudice and hence

severance was not necessary.Id. at 49-50. In doing so, the trial court recognized that




       ^ The State charged 35 counts of residential burglary, 1 count of attempted
residential burglary, 4 counts of first degree burglary, 3 counts of second degree burglary,
39 counts of trafficking in stolen property, 17 counts of first degree theft, 18 counts of
second degree theft, 1 count of attempted second degree theft, 3 counts of third degree
theft, 5 counts of theft of a firearm, 5 counts of identity theft, 4 counts of unlawful
possession of a firearm, 1 count of possession ofstolen property, and 1 count ofpossession
of a controlled substance. Several of the crimes are predicate offenses for criminal
profiteering, specifically, theft in the first degree, theft in the second degree, trafficking in
stolen property in the first degree, and identity theft in the second degree. See RCW
9A.82.010(4)(e),(r),(kk).
State V. Linville (Kenneth A.), No. 94813-5


"the first count of leading organized crime" explained why there were "so many

crimes that are charged in this particular case." Id. at 50.

       The jury convicted Linville on all counts except one: possession of a

controlled substance. Linville appealed these convictions on a number of grounds,

including ineffective assistance of counsel. Linville argued that his counsel's

performance was deficient because he failed to object to the joinder of charges not

enumerated in RCW 9A.82.010(4), despite the mandatory "joinder bar" of RCW

9A.82.085.


       The Court of Appeals agreed with Linville and reversed. State v. Linville, 199

Wn. App. 461,400 P.3d 333(2017). It held that defense counsel's performance was

ineffective because he failed to object to the joinder of charges that are not included

in RCW 9A.82.010(4)'s list as acts of "criminal profiteering." Id. at 465-71. We

granted review,State v. Linville, 189 Wn.2d 1016,404 P.3d 486(2017), and reverse

the Court of Appeals.

                                 Standard of Review


       To prevail on a claim of ineffective assistance, Linville must show that his

counsel's performance fell below an objective standard of reasonableness and that

he was prejudiced by the deficient performance. Strickland v. Washington,466 U.S.

668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "Because claims of ineffective

assistance of counsel present mixed questions of law and fact, we review them de
State V. Linville (Kenneth A.), No. 94813-5


novo." In re Pers. Restraint ofBrett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). If

there were factual findings concerning, for example, defense counsel's strategy or

tactics, we would review them for "substantial evidence." Id. But "the legal

conclusions flowing from such findings and testimony are reviewed de novo."Id. at

873-74.


                                        Analysis


       In order to evaluate Linville's ineffective assistance ofcounsel claim, we must

first determine whether the CPA's "joinder bar" allows unlisted crimes to be joined

with listed CPA predicate crimes in a single "leading organized crime" prosecution.

       I.     The CPA's language bars joinder of unlisted crimes as predicates on
              which the pattern of profiteering is based

       The State charged Linville with "leading organized crime," in violation of

RCW 9A.82.060(l)(a), plus 137 other offenses. "Leading organized crime" is

defined in our CPA as "[ijntentionally organizing ... any three or more persons with

the intent to engage in a pattern of criminal profiteering activity . . . ." RCW

9A.82.060(l)(a)(emphasis added). "Criminal profiteering" is then defined in RCW

9A.82.010(4); that statute contains an exclusive list of crimes that fit within the

definition of"criminal profiteering."^ A ''pattern of criminal profiteering activity,"



       ^ The definition of"criminal profiteering" is divided into five clauses:(1) any act,
(2) including any anticipatory or completed offense,(3) committed for financial gain (4)
that is chargeable or indictable under the laws ofthe state in which the act occurred and(5)
State V. Linville (Kenneth A.), No. 94813-5


in turn, is defined as "at least three acts ofcriminal profiteering'' that are related in

certain specific ways. RCW 9A.82.010(12)(emphasis added).

       The State can join all predicate acts of"criminal profiteering" that form part

of the "pattern" in a single case. But it cannot join any other crimes in that same

case: under RCW 9A.82.085, the "joinder bar," "the [Sjtate is barred from joining

any offense other than the offenses alleged to be part of the pattern of criminal

profiteering activity."

       That brings us to the critical question in this ease: Does "at least three acts of

criminal profiteering'' mean the State can charge more than three acts of criminal

profiteering as part of the "pattern"? Or does it mean that the State can also charge

other, unlisted, non-criminal-profiteering acts as part of the "pattern"? In other

words, is the statutory list of predicate crimes just illustrative, allowing the State to




if the act occurred in a state other than this state would be chargeable or indictable under
the laws of this state had the act occurred in this state and punishable as a felony and by
imprisonment for more than one year, regardless of whether the act is charged or indicted
as any of the following enumerated crimes. RCW 9A.82.010(4). The definition then lists
46 enumerated offenses. RCW 9A.82.010(4)(a)-(tt).

       The State argues that the conditional clause here labeled(5)govems notjust the out-
of-state crimes there described but also in-state crimes. That allows the State to argue that
to comply with the "joinder bar," all it had to do was show that Linville's crimes occurred
in Washington and were committed for financial gain. We disagree. Clause (5)'s
conditional phrasing applies only to out-of-state crimes. Otherwise, there would be no
reason to provide a list of in-state crimes that constitute predicate offenses.
State V. Linville (Kenneth A.), No. 94813-5


tag any other illegalities as predicate "profiteering" crimes, despite the fact that the

legislature excluded them from the list?

       Linville argues that the list of predicate profiteering crimes is exclusive, that

the "pattern of criminal profiteering activity" must be based on three or more of

those crimes, and that the legislature excluded other crimes from that list on purpose.

Linville therefore concludes that RCW 9A.82.085 bars the State from joining

offenses not listed in RCW 9A.82.010(4) in the "pattern of criminal profiteering

activity." The State argues that even crimes omitted from the CPA's list of

profiteering activity can be charged as part of the ''pattern of criminal profiteering

activity." The State therefore concludes that all sorts of unenumerated offenses can

form part of the "pattern of criminal profiteering activity" and be joined with the

statutory-predicate-based profiteering activity despite the joinder bar.

       This case thus presents a question of statutory interpretation.

       The first controlling rule of statutory interpretation in a situation like this is

"expressio unius est exclusio alterius"—^the express inclusion of specific items in a

class impliedly excludes other such items that are not mentioned. In re Det. of

Williams, 147 Wn.2d 476,491, 55 P.3d 597(2002). Here,"criminal profiteering" is

defined in RCW 9A.82.010(4), a statute that contains an exclusive list of46 crimes.

Under the interpretive rule of "expressio unius," all other crimes were impliedly




                                              7
State V. Linville (Kenneth A.), No. 94813-5


excluded. Because of that legislative decision, those other crimes cannot be

considered profiteering crimes.

       A ''pattern of criminal profiteering activity" is then defined by reference to

that exclusive list of 46 crimes as "at least three acts of criminal profiteering'' that

are related in very specific ways. RCW 9A.82.010(12) (emphasis added). The

limitation to those 46 crimes remains because "at least three" describes "acts of

criminal profiteering." In other words, since a "pattern of criminal profiteering

activity" is limited to 46 specific predicate "acts of criminal profiteering," it

necessarily follows that the "pattern" is limited to the same 46 specified predicate

acts of criminal profiteering.

       Even if the phrase "three or more acts of criminal profiteering" were

ambiguous and could be interpreted to include nonprofiteering crimes, that

ambiguity cannot be resolved by interpreting the statute to include all crimes under

the sun—^not just the listed 46—in the "pattern." The reason lies in the next

controlling rule of statutory interpretation applicable here: any such ambiguity

would have to be resolved under the rule of lenity. In re Pers. Restraint ofHopkins,

137 Wn.2d 897, 901, 976 P.2d 616 (1999). And the rule of lenity compels the

interpretation that is less punitive, not more punitive.
State V. Linville (Kenneth A.), No. 94813-5


      II.    The federal RICO statute, on which Washington's CPA was based,
             compels the same conclusion

       There are other sources of law that compel the same conclusion. We have

previously stated that it is helpful to look to the federal racketeering RICO statute

on which our state's "Tittle RICO'" CPA was based when construing the CPA.

Winchester v. Stein, 135 Wn.2d 835, 848, 959 P.2d 1077 (1998)(quoting Rice v.

Janovich, 109 Wn.2d 48, 55,742 P.2d 1230 (1987)).

       The CPA's "pattem of criminal profiteering activity" parallels the federal

RICO statute's "pattem of racketeering activity.'"^ Compare RCW 9A.82.010(12),

with 18 U.S.C. § 1961(5). RICO defines "pattem of racketeering activity" as

"requir[ing] at least two acts ofracketeering activity, one of which occurred after

the effective date of this chapter and the last of which occurred within ten years

(excluding any period of imprisonment) after the commission of a prior act of

racketeering activity." 18 U.S.C. § 1961(5)(emphasis added).

       Under RICO, these "at least two acts of racketeering activity" have to be on

the statutory list of predicate racketeering acts to be included in the "pattem."

Specifically, they have to be one ofthe crimes listed in§ 1961(l)'s exclusive list of




         The 1985 Washington State Bar Association (WSBA) RICO Task Force
recommended that the legislature replace the term "racketeering" with the "less pejorative"
term "criminal profiteering." Memorandum from the WSBA RICO Task Force to the Bd.
of Govemors and WSBA 1 (Jan. 7, 1985)(on file with the Wash. State Archives).
State V. Linville (Kenneth A.), No. 94813-5


predicate acts. In other words,RICO's modifying phrase "at least two" describes the

number of predicate acts "of racketeering activity" required, not the number of

predicate acts of racketeering activity plus other crimes that Congress neglected to

mention.See generally United States v. Turkette,452 U.S. 576,583,101 S. Ct. 2524,

69 L. Ed. 2d 246 (1981) (referring to the statutory definition of "racketeering

activity" for the "series of criminal acts" on which the pattern must be based); HJ.

Inc. V. Nw. Bell Tel Co., 492 U.S. 229, 239, 109 S. Ct. 2893, 106 L. Ed. 2d 195

(1989)(RICO "pattern" must be based on RICO "predicates").

       The United States Supreme Court has interpreted a "pattern of racketeering

activity" to mean only offenses enumerated in 18 U.S.C. § 1961(1). See Scheidler v.

Nat'l Org.for Women,Inc., 547 U.S. 9, 14, 126 S. Ct. 1264, 164 L. Ed. 2d 10(2006)

(defining a "pattern ofracketeering activity" as a "pattern that RICO defines in terms

of certain predicate acts"); Nat'l Org.for Women, Inc. v. Scheidler, 510 U.S. 249,

256-57, 114 S. Ct. 798, 127 L. Ed. 2d 99(1994)(defining "pattern of racketeering

activity" through § 1961(l)'s list of predicate offenses); H.J. Inc., 492 U.S. at 239

(stating that "'[t]he term "pattern" itself requires the showing of a relationship'

between the predicates'" (emphasis added) (alteration in original) (quoting 116

Cong.Reg., at 18,940(1970)(Statement of Sen. McClellan))).

       This does not matter that much under RICO. As long as the government can

charge two listed predicate acts that are sufficiently related to be considered a


                                              10
State V. Linville (Kenneth A.), No. 94813-5


"pattern," the government can join other non-RICO crimes in the same indictment—

there is no federal RICO "joinder bar."

       But it matters a great deal in Washington because our legislature, cognizant

of the prosecutorial power the CPA carried, did adopt a CPA "joinder bar." And

relying on the United States Supreme Court's interpretation of the similar RICO

statutes described above, the conclusion is inescapable that predicate CPA criminal

profiteering acts, like predicate RICO racketeering acts, are limited to the predicate

crimes that the legislature expressly listed. That is why we said in Trujillo v.

Northwest Trustee Services, Inc. that "'[cjriminal profiteering' is defined as

commission of specific enumerated felonies for financial gain." 183 Wn.2d 820,

837, 355 P.3d 1100(2015)(citing ROW 9A.82.010(4)).

       Thus, unless an offense is an "act of criminal profiteering" that fits within the

definition of a "pattern of criminal profiteering," it cannot be joined with a violation

of the CPA. That means that in this case, the State should not have joined the CPA

charge of leading organized crime with unenumerated, nonpredicate, non-CPA

offenses.^



       ^ The concurrence says that this opinion shows a complete lack of understanding of
organized crime prosecutions. Concurrence in result at 3. The concurrence overlooks the
fact that this opinion is engaged only in the act of statutory interpretation, not in the act of
developing tools for effective organized crime prosecutions. It is the legislature that
enacted the statute, saying that a pattem of criminal profiteering activity involves "at least
three acts of criminal profiteering" connected in specific ways. "Three" clearly refers to
"acts of criminal profiteering," and "acts of criminal profiteering" is clearly defined by an

                                              11
State V. Linville (Kenneth A.), No. 94813-5


       III.   We cannot tell from this record why counsel did not object; for that
              reason we cannot decide whether trial counsel's performance was
              deficient


       But trial counsel did not object. To prove ineffective assistance of counsel,

Linville must show that defense counsel's representation was deficient and that

defense counsel's deficient performance caused prejudice. State v. Thomas, 109

Wn.2d 222, 225-26, 743 P.2d 816 (1987) (applying the two-pronged test in

Strickland, 466 U.S. at 687).




exclusive list. Ifthere is a criticism to be made about misunderstanding prosecutorial tools,
it should be directed at the legislature. But it is unlikely that the legislature's joinder bar
misunderstands those tools. The legislative history shows that the joinder bar was
purposely enacted to curb the type of vast prosecutorial power that RICO vested in federal
prosecutors. Memorandum,supra, at 22("The Task Force is concerned by the history of
the use of RICO prosecutions and their demonstrated tainting effect with juries and
recommends that RICO prosecutions be focused on that narrow class of professional
criminals for whom they were designed and do not provide the opportunity for joining
RICO violations with other unrelated criminal prosecutions in light of the substantial
evidentiary and tactical advantages that RICO prosecutions offer the government."); see
also Barry Tarlow,RICO: The New Darling ofthe Prosecutor's Nursery, 49 FORDHAM L.
Rev. 165,169-71 (1980).

      The concurrence also raises the specter that double jeopardy protections might bar
prosecutors from bringing related, nonpredicate offenses in a separate action. The
concurrence fails to cite any authority for its concern. Indeed, the United States Supreme
Court has explained that the double jeopardy clause "does not establish that the
Government'must... bring its prosecutions . .. together.' It is entirely free to bring them
separately, and can win convictions in both" so long as they do not constitute the "same
offense" under Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed.
306(1932). United States v. Dixon, 509 U.S. 688, 705-06, 113 S. Ct. 2849, 125 L. Ed. 2d
556(1993)(alterations in original).




                                              12
State V. Linville (Kenneth A.), No. 94813-5


       Linville argues that his counsel was deficient for failing to object to joinder

of criminal profiteering crimes with non-CPA, non-criminal-profiteering crimes,

based on ROW 9A.82.085. Suppl. Br. of Resp't at 6. The record clearly supports

Linville's argument that trial counsel did not object to joinder.

       But it does not support his argument that this silence necessarily constituted

deficient performance. In fact, at oral argument, the State theorized thatjoinder may

have benefited the defendant more than having multiple separate trials and risking

multiple separate convictions and sentencings.^ From this record, it is impossible to

tell whether that hypothesis—or any others—is correct.

       But that is the record we are limited to on this appeal. No other evidence on

counsel's strategic or tactical decisions was presented in the courts below. And when

"the claim is brought on direct appeal, the reviewing court will not consider matters

outside the trial record." State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251

(1995) (citing State v. Crane, 116 Wn.2d 315, 335, 804 P.2d 10 (1991); State v.

Blight, 89 Wn.2d 38, 45-46, 569 P.2d 1129(1977)).

       As this court has previously noted, "If a defendant wishes to raise issues on

appeal that require evidence or facts not in the existing trial record, the appropriate


       ® See Wash. Supreme Court oral argument. State v. Linville, No. 94813-5 (Mar. 15,
2018), at 2 min., 57 sec. to 3 min., 17 sec.; 6 min.,40 sec. to 8 min.,6 sec., video recording
by TVW, Washington State's Public Affairs Network, http://www.tvw.org (State argues
that separating the offenses may have resulted in two 10-week trials, each with over 100
witnesses, and that there might be a tactical advantage to joinder).

                                              13
State V. Linville (Kenneth A.), No. 94813-5


means of doing so is through a personal restraint petition, which may be filed [and

heard] concurrently with the direct appeal." McFarland, 127 Wn.2d at 335 (citing
Wash. State Bar Ass'n, Washington Appellate Practice Deskbook §

32.2(3)(c), at 32-6 (2d ed. 1993)(citing State v. Byrd, 30 Wn. App. 794, 800, 638

P.2d 601 (1981))).

                                      Conclusion


       "Criminal profiteering" crimes include only the predicate offenses

specifically listed in RCW 9A.82.010(4). Other unlisted, nonpredicate, non-CPA

offenses cannot be included in the "pattern of criminal profiteering activity"

described by RCW 9A.82.060. After all, that statute requires a "pattern of criminal

profiteering activity," not a pattern of some criminal profiteering activity plus any

other crimes that the State says are similar. Therefore, the State's decision to join

Linville's unenumerated crimes with the charge of leading organized crime, RCW

9A.82.060, violated the CPA's "joinder bar," RCW 9A.82.085. Any other

interpretation would make that joinder bar completely ineffective.

       On this record, however, it is impossible to tell whether Linville's counsel had

legitimate reasons for remaining silent in the face of such joinder. It would take a

separate collateral challenge with evidence outside the record to figure that out.

       We therefore reverse and remand to the Court of Appeals for further

proceedings in that court.


                                              14
State V. Linville (Kenneth A.), No. 94813-5




 WE CONCUR:




                       eg .




                                              15
State V. Linville




                                     No. 94813-5



        Gonzalez,J.(concurring in result only)—Washington's Criminal

Profiteering Act(WCPA), ch. 9A.82 RCW,is a powerful tool designed to

eliminate organized crime. Because it is such a powerful tool, our legislature has

placed limitations on its use. Relevantly, only crimes that fit within a pattern of

criminal profiteering may be joined. RCW 9A.82.085. The majority expands this

limitation to the point of absurdity and eviscerates this tool's ability to fight

organized crime.


        Kenneth Linville Jr. led a wave of burglaries throughout Thurston County.

The State charged him with leading organized crime, RCW 9A.82.060, and 137

other crimes. Majority at 3 n.2. Some of Linville's crimes were specifically

enumerated in the definition of"criminal profiteering," RCW 9A.82.010(4); others

were not. The WCPA's joinder provision prevents the State from charging

Linville with crimes that are not "alleged to be part ofthe pattern of criminal

profiteering activity." RCW 9A.82.085. The State joined all charges related to

Linville's organized criminal activities, including those that were not enumerated
State V. Linville, No. 94813-5 (Gonzalez, J., concurring in result only)


under the definition of"criminal profiteering" in the WCPA. Linville's counsel

did not move for severance based on the WCPA's joinder provision. I agree with

the majority that Linville fails to rebut the presumption that counsel performed

reasonably, but write separately because the joinder provision does not

categorically bar the State from charging crimes that are not enumerated under the

definition of"criminal profiteering."


       In a prosecution for leading organized crime, the State can charge only

crimes "alleged to be part ofthe pattern of criminal profiteering activity." RCW

9A.82.085. The WCPA defines "pattern of criminal profiteering activity" as

"engaging in at least three acts of criminal profiteering." RCW 9A.82.010(12).

The phrase "at least," in this definition, modifies "three acts" and sets out a floor

for what constitutes a pattern of criminal profiteering activity. See Baker v. Morris,

84 Wn.2d 804, 812-13, 529 P.2d 1091 (1974)(Stafford, J., dissenting)("'At least'

is not a restrictive phrase."). "At least" does not limit what other acts the State can

charge to demonstrate the pattern; it simply prohibits the State JBrom charging a

WCPA violation unless there are a minimum ofthree ofthe enumerated criminal

profiteering crimes included in RCW 9A.82.010(4).^ Those "three acts must have


'Federal law operates similarly. In H.J. Inc. v. Northwestern Bell Telephone Co. the Supreme
Court considered the definition of"pattern ofracketeering activity," which provides that a
pattern includes '"at least two acts of racketeering activity.'" 492 U.S. 229, 237-38, 109 S. Ct.
2893, 106 L. Ed. 2d 195 (1989)(quoting 18 U.S.C. § 1961(5)). It reaffirmed and applied the
principle that "at least" two predicates "implies 'that while two acts are necessary, they may not
State V. Linville, No. 94813-5 (Gonzalez, J., concurring in result only)


the same or similar intent, results, accomplices, principals, victims, or methods of

commission, or be otherwise interrelated by distinguishing characteristics

including a nexus to the same enterprise, and must not be isolated events." RCW

9A.82.010(12). Functionally, this acts to limit application ofthe joinder rule in

CrR 4.3, which allows offenses to be joined when they "[a]re ofthe same or

similar character, even if not part of a single scheme or plan," among other things.

       The majority fundamentally misunderstands organized crime prosecutions.

The required nexus can be proved in some cases by relying on crimes that are not

enumerated.^ Clearly, the legislature intended for crimes that are not enumerated

as criminal profiteering to be charged alongside enumerated crimes. James M.

Evans, "Don't Throw Me Into the Briar Patch                RICO and Rules ofEvidence, 73

Notre Dame L. Rev. 433, 435 (1998)("[Tjhere are high evidentiary burdens

involved with RICO.. .. [Bjecause the RICO prosecutor[s] mustTpvowQ more,

[they] can prove more."). Here, the State alleged Linville led a wave of burglaries.

Burglary is not enumerated in the definition of criminal profiteering, but the bulk

of Linville's burglaries were committed in the same transaction as criminal




be sufficient.'" Id.(quoting Sedima, SPRL v. Imrex Co., 473 U.S. 479, 496 n.l4, 105 S. Ct.
3275, 87 L. Ed. 2d 346 (1985)). Like the federal statute, the WCPA's definition section "does
not so much define a pattern of racketeering activity as state a minimum necessary condition for
the existence of such a pattern." Id.
^ This case is a poor vehicle to explore the contours ofthe pattern requirement's ceiling because
Linville's counsel did not argue specific crimes fell outside his pattern of criminal profiteering.
State V. Linville, No. 94813-5 (Gonzalez, J., concurring in result only)


profiteering crimes, such as first degree theft. As the State explains,"The

definition of a pattern of criminal profiteering necessarily includes the means

utilized and crimes based on the methods and results of offenses which would

otherwise be enumerated are necessarily part ofthe 'pattern' of criminal

profiteering." Pet. for Review at 11. To show that enumerated crimes have a

nexus to the same criminal enterprise, the State may need to rely on crimes that are

not enumerated. Thus, crimes that are not enumerated as criminal profiteering can

be charged alongside enumerated crimes to satisfy the WCPA's nexus requirement.


       The State raises a significant question of whether the majority's

interpretation is a sustainable interpretation ofthe statute given that it, in effect,

would trigger double jeopardy to block prosecution of crimes that are not

enumerated but were nonetheless part ofthe nexus ofthe criminal profiteering

activity. In my view, this is more evidence that the legislature could not have

intended the interpretation ofthe joinder provision that the majority gives it today.

       The majority's categorical rule reveals a lack of confidence in the

adjudicative process—^trial courts are capable of determining if alleged crimes fit

within a pattern. As long as at least three criminal profiteering predicates are

included in a pattern of criminal profiteering activity and all ofthe charged crimes

are related to the pattern, the joinder provision is satisfied. I concur in result only.
State V. Linville, No. 94813-5 (Gonzalez, J., concurring in result only)




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