Mathis v. State

• Decision Date: 14 October 2016
• Docket Number: No. 5D14–492.,5D14–492.
• Citation: 208 So.3d 158
• Parties: Kelly MATHIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

208 So.3d 158

Kelly MATHIS, Appellant,

v.STATE of Florida, Appellee.

No. 5D14–492.

District Court of Appeal of Florida, Fifth District.

Oct. 14, 2016.

Rehearing and Rehearing En Banc Denied Dec. 1, 2016.

Michael R. Ufferman, of Michael Ufferman Law Firm, P.A., and Peter D. Webster, of Carlton Fields Jorden Burt, P.A., Tallahassee, for Appellant.

Marc J. Randazza, of Randazza Legal Group, Las Vegas, NV, Amicus Curiae for the First Amendment Lawyers Association.

Ashley Litwin, Miami, Amicus Curiae for National Association of Criminal Defense Lawyers.

Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock and Pamela J. Koller, Assistant Attorneys General, Daytona Beach, Office of Statewide Prosecution, Tampa, for Appellee.

WALLIS, J.

Kelly Mathis ("Appellant") appeals his convictions and sentences for: racketeering (RICO);¹ fifty-one counts of setting up, promoting, or conducting an illegal lottery;² and fifty-one counts of possessing an illegal slot machine or device.³ Appellant argues, and we agree, that the trial court abused its discretion by excluding evidence supporting his theory of the defense, effectively preventing him from arguing that he lacked the requisite mens rea for his offenses. We reverse Appellant's convictions and sentences and remand for a new trial.⁴

This case stems from Florida's crackdown on what became colloquially known as "internet cafes," which sprung up throughout the state between 2007 and 2014. In 2007, Michael Ryles, Chase Burns, and Brad Skidmore hired Appellant, an attorney in Jacksonville, to research whether Florida law permitted the operation of internet cafes.⁵ Appellant conducted legal research on the issue for several weeks, discussed the proposed business model with various state and local officials, and ultimately concluded that his clients could legally operate internet cafes in Florida. After meeting with Appellant, Ryles, Burns, and Skidmore contacted Jerry Bass and Johnny Duncan, who ran a veteran's organization called Allied Veterans of the World ("Allied Veterans"). Appellant's clients agreed to operate the internet cafes as a veteran's organization under section 501(c)(19) of the Internal Revenue Code using Allied Veterans' name. Allied Veterans opened its first internet cafe in Jacksonville in 2007 and subsequently expanded to fifty affiliated locations throughout Florida by 2011.

Appellant dealt with Allied Veterans solely in the scope of an attorney-client relationship. Appellant neither invested in nor received profits from the business. The only financial benefit Appellant received from Allied Veterans came from attorney's fees incurred in the course of representing the organization. When Allied Veterans expressed interest in expanding the cafes, Appellant undertook additional legal research on the proposed location to ensure compliance with zoning ordinances and other local laws, which included speaking with various local authorities—such as police chiefs and assistant state attorneys. Prior to expansion, Appellant presented Allied Veterans with a report recommending whether it could feasibly open an affiliate in the proposed location.

In 2011, the Volusia County Sherriff's Office established a multi-jurisdictional taskforce to investigate internet cafes. The task force executed over fifty search warrants at Allied Veterans locations and Appellant's law firm, ultimately arresting fifty-seven persons described as "owners or managers or those who facilitated the growth and operation of the enterprise as a whole." The State, through the Attorney General's Office of Statewide Prosecution, charged the fifty-seven defendants, including Appellant, with: racketeering (RICO); conspiracy to commit racketeering; fifty-one counts of setting up, promoting, or conducting an illegal lottery; fifty-one counts of possessing an illegal slot machine or device; and fifty-three counts of participating in an illegal gambling business (money laundering).

Before trial, Appellant requested that the trial court take judicial notice of evidence supporting his theory of the defense, including: (1) ordinances regulating internet cafes in Jacksonville, Clay County, Leon County, Seminole County, St. Johns County, Volusia County, and Wakulla County; (2) a circuit court order upholding the Jacksonville ordinance; and (3) various Florida House of Representatives staff analyses and proposed bills regulating internet cafes. In response, the State filed two motions in limine to prevent Appellant from both referencing any ordinances and raising an "advice of counsel" defense at trial.

The trial court considered the notice requests and motions in limine at a hearing in August 2013. The State argued that Appellant improperly wished to raise an "advice of counsel" defense and requested that the trial court compel Appellant to provide the names of all attorneys with whom he discussed the legality of the internet cafes. Defense counsel disagreed with the State's framing of the issue, explaining that Appellant did not rely on advice of retained counsel, but rather that his research and meetings with government officials led him to advise Allied Veterans that internet cafes were legal. The trial court found the State's argument compelling, reasoning that the State was not charging Appellant as an attorney, only as an ordinary member of the organization. The trial court expressed its understanding of the issue in the following statement:

I think you're elevating Mr. Mathis much higher than the state intends to do it. I think they're putting him down on the same common level as everybody else for the most part.

....

It's a slot machine, lottery, RICO case with everybody involved. And if the State decides that they are going to single him out as the attorney, which necessitates you having to bring in these other attorneys for some reason, I'll be very careful to hear what they have to say as far as that's concerned, but otherwise to me ... it's a simple trial with a bunch of defendants here going on.

And the fact that you are concerned or for some reason you think they're focusing on him as the attorney to where you need to bring other attorneys to give their interpretation of the law, I just don't see that, really.

After the hearing, the trial court entered an order granting the State's motion in limine regarding the "advice of counsel" defense, prohibiting Appellant from introducing any "communication between [him] and any other attorney" regarding the legality of the Allied Veterans' business model. The trial court granted the State's remaining motion in limine, prohibiting Appellant from "present[ing] evidence and testimony relating to county and municipal ordinances, as such evidence is irrelevant to the issue of whether he acted in violation of State statutes."

Appellant's trial commenced on September 16, 2013, and concluded on October 11, 2013. The State contradicted its pre-trial assertion that it would not focus on Appellant's capacity as an attorney, as demonstrated by the prosecutor's remarks during opening statement:

[W]ith Kelly Mathis—it's about gambling. That's what the charges are. Let's be clear. But it's about Kelly Mathis gaming the system. He's a lawyer and he gamed the legal system.

....

You see, one of the other reasons we know that Kelly Mathis is gaming the system is that you're going to learn that ... a couple of attorney generals from the State of Florida had issued opinions on similar types of sweepstakes ... and said they're illegal.

You're going to learn that one attorney general ... wrote a letter to Mr. Mathis about it ... saying it was illegal. But the games continued.

....

[Y]ou're going to hear people say that if he had said, hey, this is a real risk or this is illegal, like the attorney general opinion said, they wouldn't have done it. He gamed the system.

Throughout the trial, the State elicited witness testimony focusing on the soundness of Appellant's legal conclusions. Yet, the trial court prohibited Appellant from presenting any testimony to rebut the prosecutor's theme, including the local ordinances that specifically permitted the operation of internet cafes.

The State persisted in its assertion that Appellant knowingly provided false legal advice during closing argument and rebuttal:

I'll submit to you that the Defendant was quite well aware of what he was doing when he was going out talking to everybody.

[T]he Defendant, in explaining the Allied Veterans locations, was very aware of what the law is. He was very aware of what the law is. Because the manner in which he described what was happening at the Allied Veterans locations was a misrepresentation.

....

But why are we here on Kelly Mathis? Because of the way he gamed the law, the way he chose to practice law, to mislead, to deceive.

....

They tell you he had a love of the law. You know a love of the law would involve respect. It wouldn't be to come in here and try to manipulate it to make it work so that you can bill millions. That's not a love of the law.

....

This case is about gambling. But in reality, it's about complete disrespect, a disregard, and misrepresentation and manipulation of the law.

....

Four times I heard during the course of this, he was just a lawyer. He was only a lawyer ... If anybody out of the fifty-seven defendants that were involved in this, if anybody knew better about what the law said, it was him.

....

You know, it's not only—it's aggravated because he was a lawyer and he knew better.

The jury returned verdicts of guilty as to racketeering (Count 1), not guilty as to conspiracy to commit racketeering (Count 2), guilty as to conducting an illegal lottery (Counts 3–53), and guilty as to possessing an illegal slot machine (Counts 54–104).⁶ The trial court sentenced Appellant to six years' incarceration on Count 1, time served on Counts 3–53, and five years' incarceration on Counts 54–104, to run concurrently.

"A trial court has wide discretion in determining the admissibility of evidence, and, absent an...