Lewis v. State, 4D00-3418.
| Decision Date | 20 November 2002 |
| Docket Number | No. 4D00-3418.,4D00-3418. |
| Citation | 833 So.2d 812 |
| Parties | Lonnie Raymond LEWIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy C. Wear, Coral Gables, and Hilliard E. Moldof, Fort Lauderdale, for appellant.
Richard E. Doran, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
A jury found the Defendant guilty of an organized scheme to defraud, eight counts of second-degree communications fraud, and 28 counts of third-degree communications fraud. The trial court sentenced him to two years in prison plus probation and ordered restitution to each of the victims. We affirm in part and reverse in part, and write to address only whether the State presented enough evidence to sustain the communications fraud counts where the victims did not testify.
These convictions resulted from a vending machine business owned by the Defendant. He advertised 20 vending routes already in place "in your area" in various city newspapers around the country. There were actually no established vending routes anywhere. The advertisement gave a telephone number. The number connected the customer to a "fronter," or person who explained the investment opportunity. The fronter would give the customer a name and number of a reference, or "singer," who would discuss his or her investment in the business.
After talking to the reference, the customer would receive a UPS package providing accurate details about the machines. Once the customer decided to buy, he or she would again talk to a "closer." The customer would then sign a contract and wire or mail funds. The machine would go out to the customer's home, and another, usually sub-contracted, company would help the customer find a location for the machine.
The State established at trial that there were never any vending routes in any of the advertised cities. At least one singer testified that he did not own any machines yet he received a paycheck to recount that he owned 10-12 machines and they each had 12-20 vends per day. All evidence showed that the buyers actually received working vending machines on their doorsteps; the State's case was against the representations made about the nature of the business.
The State established this business procedure largely through the Defendant's bookkeeper's testimony. The State walked the bookkeeper through a mound of documents seized from the Defendant's headquarters. The bookkeeper described the file notations as to which singer spoke with the customer, when the UPS packages were sent out and copies of the wire or money order the customer sent back.
The Defendant claims on appeal that his constitutional right to confrontation was violated by the 18 communication fraud convictions where the victim did not testify. We disagree. The Defendant's right to confront his witnesses was satisfied because the State used business records, not witness testimony, to show the element of communication. Witness testimony was not required for the State to make its prima facie case; therefore, the Defendant's constitutional right to confront the witnesses against him was not triggered. We reverse, however, those counts where the State did not prove a communication in furtherance of the scheme through documentation.
To decide whether the State made its prima facie case without witnesses, we examined the Florida Communications Act and federal mail fraud precedent.
"Any person who engages in a scheme to defraud and in furtherance of that scheme, communicates with any person with the intent to obtain property from that person is guilty, for each such act of communication, of communications fraud." § 817.034(4)(b), Fla. Stat. (2001).
Further, the stated legislative intent of the Act was "to prevent the use of communications technology in furtherance of schemes to defraud by consolidating former statutes concerning schemes to defraud and organized fraud to permit prosecution of these crimes utilizing the legal precedent available under federal mail and wire fraud statutes." § 817.034(1)(b), Fla. Stat. (2001).
Our reading of the statute does not require the communication itself to be fraudulent. The literal requirements of the statute are that the communication be: 1) in furtherance of the scheme to defraud and 2) made with the intent to obtain property. There is little Florida precedent analyzing the communications fraud portion of the Act. However, the second district has observed, "At the heart of the Act and the two federal statutes is the concept of `a scheme to defraud' with the utilization of communication techniques as the means to accomplish a deceitful objective." See Batten v. State, 591 So.2d 960 (Fla. 2d DCA 1991).
Like the second district, we looked to federal mail and wire fraud precedent as instructed by the Act. Federal precedent requires but the slimmest connection of the scheme to defraud with the use of the mail; mailing seems to be the jurisdictional threshold rather than a substantive element. The use of the mail does not have to be an essential element of the scheme to defraud to sustain a mail fraud conviction. See United States v. Young, 232 U.S. 155, 34 S.Ct. 303, 58 L.Ed. 548 (1914). For example, in Pereira v. United States, an out-of-state check served as the "mailing" for mail fraud. 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954). Pereira convinced a wealthy widow to write him a check for fake investments. Her check was written against a California bank, and he tried...
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