Brown v. State
| Decision Date | 10 March 1995 |
| Docket Number | No. 93-2284,93-2284 |
| Citation | 652 So.2d 877 |
| Parties | RICO Bus.Disp.Guide 8812, 20 Fla. L. Weekly D639 Richard Freeman BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Nancy Ryan, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.
Richard Brown was found guilty by a jury of twenty-six counts of uttering a forged document, nineteen counts of petit theft, nine counts of grand theft, and one count of racketeering. We affirm in part, reverse in part and remand.
One hundred twenty-one blank payroll checks in a checkbook were stolen from R.E. Clifton Fernery on February 9, 1993. These checks were passed by five different people at area grocery stores. The defense stipulated that each of the twenty-six checks supporting the uttering counts was tendered by either William Shannon, Carol Calkins, Heather Tharp, Margaret Loveless or Thomas Gardner. The testimony of all five of these witnesses was consistent. They did not know one another, with the exception of Tharp and Calkins, and had not previously met Brown until Brown approached each witness and offered each witness $50 for every check cashed.
Brown told each witness how to dress and behave when cashing checks; Brown chose the time and place the checks would be cashed; and Brown provided the transportation to the location where the checks would be cashed. Loveless stated different people drove her and Brown to the stores and that she knew the drivers were being paid. On February 27, 1993, police stopped Brown's car and found five of R.E. Clifton Fernery's checks in the car. Another check was found in Brown's motel room. Brown's fingerprints were on four of the five checks found in the car and on two of the checks passed by Shannon. Brown was charged with the theft of the checks (two petit theft counts) and with acting as a principal in presenting the forged checks for payment at the various stores (twenty-eight uttering counts). The twenty-eight petit and grand theft counts were based on Brown's actions in receiving payment for the checks. The racketeering count alleged Brown acted in an enterprise with Shannon, Calkins, Tharp, Loveless, and Gardner and had committed a pattern of forty-one racketeering acts. 1 Brown raises numerous issues on appeal which we discuss seriatim.
Count fifty-nine of the information charged Brown with violating section It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.
895.03(3), Florida Statutes (1991), racketeering. This section provides:
On appeal, Brown contends the State failed to establish that he was involved in an "enterprise" as defined in section 895.02(3), Florida Statutes (Supp.1992):
"Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental, as well as other, entities.
Brown argues that the State failed to prove this essential element of the crime of racketeering, and his motion for judgment of acquittal should have been granted.
In Boyd v. State, 578 So.2d 718 (Fla. 3d DCA), review denied, 581 So.2d 1310 (Fla.1991) the court discussed the element of enterprise:
Consistent with legislative intent, the case law is uniform that to prove that an enterprise exists, more is required than a mere showing of an association of criminals. To prove the existence of an enterprise, the government must present evidence of an ongoing organization, formal or informal, with various associates who function as a continuing unit. The enterprise "is not the 'pattern of racketeering activity'; it is an entity separate and apart from the pattern of activity in which it engages." [United States v.] Turkette, 452 U.S. at 583, 101 S.Ct. at 2528-9. Although there is a lack of specificity in the statute and case law as to the nature of proof required to establish an enterprise, and federal circuits are not in agreement on the scope of the enterprise element, most authorities agree that a showing of an ongoing, structured, criminal association is required. See United States v. Griffin, 660 F.2d 996, 1000 (4th Cir.1981) (). Manax v. McNamara, 842 F.2d 808, 811 (5th Cir.1988) (); United States v. Bledsoe, 674 F.2d 647 (8th Cir.1982) ().
Id. at 721 (footnote omitted).
In our view, the first element of an enterprise, "ongoing organization," was not satisfied. Although Brown was described by witnesses as the "boss," and Brown's methods were highly organized, there was no evidence that Brown associated with any of the witnesses except to carry out a specific incident of check cashing. There was no evidence that Brown and each check casher or Brown and the check cashers as a group had any structure separate from the racketeering activity. Other than the amount of control and planning incident to accomplishing each predicate act, there was no evidence Brown and any other check casher had any of the structure needed to constitute an enterprise.
The second element, that the various associates function as a continuous unit, requires the state to show "some degree of temporal continuity." Id. at 722. Here, the crimes were all committed within a short time period. Shannon tendered the checks for payment between February 8 and February 12; Calkins tendered the checks between February 17 and February 27; Tharp tendered the checks between February 24 and February 27; Loveless tendered the checks between March 8 and March 23; and Gardner tendered the checks between March 23 and March 25. In H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 242, 109 S.Ct. 2893, 2902, 106 L.Ed.2d 195 (1989) the Court stated, "Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct." Here The third element of an enterprise "is that the organization have an existence separate and apart from the pattern of racketeering activity in which it engages." Boyd, 578 So.2d at 722 (citing United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)). Under the facts of the case at bar, this element dovetails with that of the first element. The lack of each witness's knowledge of the others precludes the finding of an enterprise. Count fifty-nine charges that Brown acted with "a group of individuals associated in fact." The evidence at trial was wholly lacking that the check cashers were a group "associated in fact."
presumably the conduct could have continued on as long as stolen checks were available. Brown could control the rate at which the checks were cashed and we conclude that whether the continuity aspect was met was properly left to the jury.
If there is nothing linking the members of the association to one another except the commission of the predicate criminal acts, then there is no enterprise.... More is required to prove an enterprise than that the same group of people repeatedly commit predicate offenses.... There must be proof, minimally, of a purposive systematic arrangement between members of the group.
Boyd, 578 So.2d at 722 (citations omitted). As Brown correctly argues, the State failed to bring forth evidence showing an ongoing enterprise.
Brown next argues that in addition to the State's failure to demonstrate the existence of an enterprise, the State also failed to prove "a pattern of racketeering activity." Section 895.02(4) defines that term:
"Pattern of racketeering activity" means engaging in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct.
In addition to the similarity and interrelatedness of the activity, the requirement of continuity of particular criminal activity has been engrafted onto the statutory definition. Bowden v. State, 402 So.2d 1173, 1174 (Fla.1981). In H.J. Inc., supra, the Court discussed the continuity aspect:
"Continuity" is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.... A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct. Often a RICO action will be brought before continuity can be established in this way. In such cases, liability depends on whether the threat of continuity is demonstrated.
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