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O’BRIEN, KELVIN LYNN

PD-0061-16 05/04/2016

"Whether the court of appeals erred in holding that unanimity is not required with respect to the enumerated offenses of theft and money laundering in an engaging in organized criminal activity by commission jury charge."

Engaging in organized criminal activity occurs when, with intent to, inter alia, participate in a combination, the defendant commits or conspires to commit one or more enumerated offenses. The two paragraph indictment alleged commission of theft and commission of money laundering as underlying offenses. The jury charge allowed a conviction if the jury found either theft or money laundering as the underlying offense.

The court of appeals held that theft and money laundering were merely different manners and means of committing the charged offense of engaging in organized criminal activity; they were not two separate engaging offenses. Therefore, the jury was not required to be unanimous about which underlying offense supported its verdict.

O'Brien contends the case law the court of appeals relied upon is distinguishable. He argues that the court confused engaging by conspiring to commit an enumerated offense with engaging by actual commission of an enumerated offense. He acknowledges that an overt act in furtherance of a conspiracy to commit an underlying offense is a manner and means about which the jury need not be unanimous. But actual commission of an enumerated offense is elemental to engaging and requires unanimity. He also distinguishes cases that allege two underlying types of theft – which are manners and means – with two underlying distinct statutory offenses.

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