Gross v. State

• Citation: 765 So.2d 39
• Decision Date: 14 July 2000
• Docket Number: No. SC95302.,SC95302.
• Parties: Ralph GROSS, Jr., Petitioner, v. STATE of Florida, Respondent.
• Court: United States State Supreme Court of Florida

765 So.2d 39

Ralph GROSS, Jr., Petitioner, v. STATE of Florida, Respondent.

No. SC95302.

Supreme Court of Florida.

July 14, 2000.

Samuel R. Halpern, Fort Lauderdale, Florida, for Petitioner.

Robert A. Butterworth, Attorney General, Celia Terenzio, Bureau Chief, West Palm Beach, and James J. Carney and Marrett W. Hanna, Assistant Attorneys General, West Palm Beach, Florida, for Respondent.

PER CURIAM.

We have for review the decision in Gross v. State, 728 So.2d 1206 (Fla. 4th DCA 1999), which the court certified to be in conflict with the opinion in Boyd v. State, 578 So.2d 718 (Fla. 3d DCA 1991), concerning the definition of the "enterprise" element of the Florida Racketeering Influenced and Corrupt Organizations (Florida RICO) statute. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we approve Gross, and disapprove Boyd.

PROCEEDINGS BELOW

The following facts are undisputed and set forth in the opinion of the Fourth District:

Appellant [Ralph Gross, Jr.], who lived in Broward County, had been friends with Christopher Forester since the early 1980's. In 1991 Forester was living in Ft. Pierce and became friends with his neighbor, John Brady, a police officer. By 1993 Forester and Brady developed a scheme to rob suspected drug dealers. The modus operandi called for them to go to the victim's home dressed and acting as police officers in order to gain entry. Brady enlisted his partner, Evans, and Forester recruited appellant, whose role was principally to select and identify Broward County victims and point out their homes. Because most of the victims were appellant's acquaintances, he did not go into the homes or directly participate in the robberies. His routine was to drive to the victim's home, give his accomplices a signal, and depart for the designated rendezvous to await his share of the loot.

Over a period of approximately a year these four, together with several others who were brought in on certain of the crimes, committed a series of planned home invasion robberies. Relevant to the issues on this appeal are the incidents on the night of September 10, 1993. On that date, Forester, Brady, and Evans drove to Broward County and met with appellant. Several victims, including Mr. Mattos and Mr. Duffy, were identified, and the evening's frolic commenced. Appellant led the others to Mr. Duffy's home, then departed. Mr. Duffy was not home but Forester, Brady and Evans found an open sliding glass door, entered and stole drugs and money. They again met with appellant and he led them to Mr. Mattos' home. Mr. Mattos was home. Brady and Evans identified themselves as police officers, entered the Mattos home, and robbed Mr. Mattos and his mother. Both Brady and Evans were armed with handguns.

Gross, 728 So.2d at 1207. Based upon these facts, Gross was charged under Florida's RICO act as well as with sixteen other felony counts involving the home invasions.

At trial, Gross moved for a directed verdict of acquittal as to the RICO charge on the ground that the State had failed to prove the "enterprise" element of the statute. The court initially deferred ruling on the motion, but when the motion was later renewed, it was denied. Subsequently, at a conference on jury instructions Gross asked that the following special instruction be given to the jury concerning the enterprise element of the RICO charge:

I would ask this on Count 1 that you read the definition of racketeering as I set fort [sic] in my Paragraph 1, I read that to you yesterday that in order for there to be racketeering, the State must prove the following elements beyond a reasonable doubt, and they say two but I ask that you add this, that the defendant was employed by, associated with an ongoing, structured, criminal enterprise. Such prove [sic] must show that the criminal enterprise had an identifiable decision making structure and a mechanism for controlling and directing the criminal enterprise on an ongoing rather than an ad hoc basis-and if you want to say for a special purpose that the jury knows what ad hoc means, I even looked it up-that the various employees or associates functioned as a continuous unit, and the criminal enterprise had an existence separate and apart from the pattern of racketeering activity in which the criminal enterprise engaged.

This requested instruction was denied.

After the State's closing argument, Gross renewed his request for the above instruction, which was again denied. Thereafter, the jury returned guilty verdicts on seventeen felony counts, including the RICO count and counts for each of the predicate offenses. Gross's motion for arrest of judgment, renewed motion for judgment of acquittal, and motion for new trial were all denied. On appeal, the Fourth District affirmed Gross's convictions and approved the trial court's denial of Gross's motions and requests for a special instruction regarding the definition of enterprise. See Gross, 728 So.2d at 1209

. In so doing, the Fourth District rejected the definition of enterprise set out in Boyd v. State, 578 So.2d 718 (Fla. 3d DCA 1991).

In Boyd, the defendant was convicted of a RICO violation as well as various crimes committed during a two-week crime spree which included multiple armed robberies, auto theft, and a second-degree murder related to the shooting of one of his associates by the police. See 578 So.2d at 719-20. The Third District reversed the conviction for the RICO count on the ground that the State failed to prove the criminal enterprise element of RICO. Boyd applied the definition of enterprise as adopted by several federal circuits. See United States v. Riccobene, 709 F.2d 214 (3d Cir.1983)

. Specifically, the court held the State must establish the following three elements: (1) an ongoing organization, formal or informal, with an identifiable decision-making structure, for controlling and directing the group on an ongoing, rather than an ad hoc basis; (2) that the various associates function as a continuous unit; and (3) that the organization have an existence separate and independent from the pattern of racketeering in which it engages. See Boyd, 578 So.2d at 721-22. The Third District concluded that the RICO statute was not intended for the prosecution of criminals who merely got together from time to time to commit sporadic criminal acts. Rather, in order to come under RICO, "there must be proof, minimally, of a purposive systematic arrangement between members of the group." Id. at 722. The jury instruction requested by Gross closely parallels the holding of Boyd.

In the instant case the Fourth District expressly rejected Boyd`s definition of enterprise as advanced by Gross. The Fourth District applied a broader, less restrictive definition of enterprise as espoused by the Federal Eleventh Circuit, which specifically rejects any requirement of a decision-making structure, sometimes referred to as an "ascertainable structure," in establishing an enterprise. See Gross, 728 So.2d at 1208

(quoting United States v. Cagnina, 697 F.2d 915, 920 (11th Cir. 1983)).

FLORIDA RICO

The Florida RICO statute was largely modeled after the Federal RICO Statute. See Fla. S. Comm. on Crim. Just., Select Comm. on Organized Crime HB 2127 (1977) Staff Analysis 2 (June 2, 1977) (available at Fla. Dep't of State, Div. of Archives, ser. 18, carton 1285, Tallahassee, Fla.). The "enterprise" and "pattern of racketeering activity"¹ elements of RICO are almost identical to the Federal RICO provisions. Specifically, section 895.03(3), Florida Statutes (1993), makes it "unlawful for any person employed by, 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." An enterprise is defined as:

[A]ny 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.

§ 895.02(3), Fla. Stat. (1993). Given the similarity of the state and federal statutes, Florida courts have looked to the federal courts for guidance in construing RICO provisions. See, e.g., State v. Nishi, 521 So.2d 252, 253 (Fla. 3d DCA 1988); State v. Bowen, 413 So.2d 798, 799 (Fla. 1st DCA 1982).

FEDERAL RICO STATUTE

The federal RICO statute provides, inter alia, that "[i]t shall be unlawful for any person employed by or associated with any enterprise engaged in ... interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U.S.C. § 1962(c) (1994) (emphasis added); United States v. Parise, 159 F.3d 790, 794 (3d Cir.1998); United States v. Allen, 155 F.3d 35, 40 (2d Cir.1998). The element of "enterprise" is defined as including "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4) (1994). A "pattern of racketeering activity" is defined as requiring "at least two acts of racketeering 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) (1994).

The U.S. Supreme Court has carefully distinguished the "enterprise" element from the "pattern of racketeering activity" element and emphasized that the enterprise element has a separate and distinct meaning that must be proven by the government:

That a wholly criminal enterprise comes within the ambit of the statute does not mean that a "pattern of

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