Mese v. State, No. 3D98-2410

• Decision Date: 19 June 2002
• Docket Number: No. 3D98-2410, No. 99-921.
• Parties: John Carl MESE, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

824 So.2d 908

John Carl MESE, Appellant, v. The STATE of Florida, Appellee.

Nos. 3D98-2410, 99-921.

District Court of Appeal of Florida, Third District.

June 19, 2002.

Rehearing and Certification of Question Denied September 4, 2002.

Dunlap and Silvers, P.A. and Marcia J. Silvers; Arthur Joel Berger, Miami, for appellant.

Robert A. Butterworth, Attorney General and Michael J. Neimand, Assistant Attorney General, for appellee.

Before GREEN, SHEVIN, and RAMIREZ, JJ.

I

GREEN, J.

John Carl Mese, along with co-defendants, Daniel Lugo and Noel Doorbal were charged in a forty-six count indictment. Mese was charged with the following crimes: conspiracy to commit RICO, RICO; two counts of first degree murder —one for Frank Griga and one for Krisztina Furton; two counts of kidnaping —one for Griga and one for Furton; one count of attempted extortion of either Griga or Furton; attempted first degree murder of Marcelo Schiller; kidnaping of Schiller; armed robbery of Schiller; extortion of Schiller; nine counts of money laundering of nine checks involving the Schiller incident; one count each of forging, falsely notarizing and uttering a Schiller quit claim deed; one count each of forging, falsely notarizing and uttering a Schiller change of beneficiary form; twelve counts of forging, falsely notarizing and uttering four identical sets of a Schiller assignment of contract; and conspiracy to commit a felony—later defined as a conspiracy to kidnap Winston Lee.

Prior to trial, Mese filed motions to sever his case from that of both co-defendants on the grounds that the Schiller and Griga/Furton crimes were separate and that there was no evidence that he had participated in the Griga/Furton crimes with his co-defendants. In response, the state asserted that there was evidence that Mese was part of an ongoing criminal conspiracy whose objective was to kidnap and torture wealthy victims until they turned over their assets and then to kill them. Mese, an accountant, allegedly had the specific role of laundering the victim's assets once the co-conspirators acquired them, The trial court denied Mese's motions for severance.

The state announced that it would seek the death penalty against Lugo and Doorbal, but not against Mese. The trial court conducted one trial using two juries after the state informed the court that it would seek to introduce a statement from Lugo which implicated Doorbal and some statements from Doorbal and Mese which implicated Lugo. One jury would hear the case against Mese and Doorbal. The other jury would hear the case against Lugo. The two juries would sit together during the entire guilt phase of the trial, separating only to hear testimony from witnesses to whom the post-arrest incriminating statements were made.

Both at the close of the state's case in chief and at the close of all the evidence, Mese moved for a judgment of acquittal on the counts of Rico conspiracy, Rico, and those counts involving Griga/Furton and the Lee conspiracy. The state responded that the evidence against Mese on the Rico conspiracy count was sufficient for the jury's consideration as it established that Mese participated in the Schiller crimes, and there was testimony that Mese's role in the criminal organization was to launder monies secured from all crimes by the codefendants. The trial court reserved ruling and submitted the case to the jury. The jury returned its verdict finding Mese guilty as charged on all counts. Following the return of the verdict, Mese filed his motion to set aside the jury verdict as to all of the RICO counts, the Griga/Furton counts and the Lee count. The trial court granted the motion and acquitted Mese of all crimes involving Rico, Griga/Furton, and Lee. As a result, Mese stood convicted for only those crimes emanating from the Schiller incident. He was sentenced to fifty-six years.¹

Mese has timely perfected the instant appeal and argues that he is entitled to a new trial based upon three errors. First, he maintains that the trial court erred in denying his three motions for severance of his trial from that of his two co-defendants pursuant to Florida Rules of Criminal Procedure 3.152(b)(3). Next, Mese asserts that the trial court erred when it permitted the state's forensic accountant to testify that Mese was guilty of money laundering. Finally, he argues that he is entitled to a new trial because the prosecutor used the trial judge to vouch for the credibility of the state's main witness during closing argument. The state has filed a cross-appeal and argues that the trial court erred in granting Mese's motion to set aside the jury verdict finding Mese guilty of RICO conspiracy.²

II

On the main appeal, Mese first contends that the trial court erred in denying his repeated motions for severance of his trial from that of his co-defendants pursuant to Florida Rules of Criminal Procedure 3.152(b)(3)³ on the grounds, among other things, that there was a gross disparity in the quantum of evidence to be introduced against him and that to be introduced against his co-defendants, Lugo and Doorbal. Moreover, he argued that there was a prejudicial evidentiary spillover in a joint trial where the state was seeking the death penalty against his co-defendants and where there was no evidence that he had been involved with the planning or killing of Griga and Furton, or in the destruction and disposal of their bodies. Mese points out that he stands convicted only of the substantive crimes involving victim Schiller and that the counts on which he was acquitted by the trial court included the RICO conspiracy count upon which joinder had been predicated.

By way of a cross-appeal, the state responds to Mese's first argument by asserting that joinder of the defendants was proper and that the trial court erred in granting Mese's motion to set aside his guilty RICO conspiracy verdict. The state maintains that the evidence adduced at trial was sufficient to establish that Mese's presence in the criminal organization was to launder the assets of all of its victims. Since Mese's first argument on the main appeal depends upon the propriety of his acquittal on the RICO conspiracy count by the trial court, we elect to address the state's cross-appeal first.

III

The trial court ordered Mese's acquittal on the RICO conspiracy charges on the ground that the evidence had failed to establish Mese's knowledge of and agreement to commit two predicate acts. The trial court believed that the evidence only established Mese's knowledge and culpability in the criminal incidents involving victim Schiller and not those involving victims Griga and Furton or Lee. The state responds that this was error since RICO conspiracy is proven if the evidence established that a defendant knew of the overall objectives of the criminal enterprise and agreed to further its purpose. Here, the state maintains that the evidence and the reasonable inferences therefrom showed that Mese, along with co-defendants Lugo and Doorbal, and Jorge Delgado were members of an association or organization whose common purpose was to launder money and other assets obtained from innocent wealthy victims by illegal and malicious means. The state further asserts that since the evidence established that Mese's role in the organization was his agreement to launder the assets of the victims, it was sufficient to support the RICO conspiracy guilty verdict, even though Mese may not have known of every detail of the Griga/Furton crimes nor committed an overt act in furtherance of the Griga/Furton crimes. After viewing the evidence and the reasonable inferences therefrom in the light most favorable to the state, see Gross v. State, 765 So.2d 39, 46 (Fla.2000),

we agree that the state presented sufficient evidence at trial to support Mese's conviction for RICO conspiracy.

Florida's RICO statute, section 895.03(3), Florida Statutes (1993), makes it "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." A pattern of racketeering activity is defined by statute as:

[E]ngaging 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.

See § 895.02(4), Fla. Stat. (1993).

Given the fact that the Florida RICO statute is patterned after the federal RICO statute,⁴ Florida courts look to federal courts for guidance in construing RICO provisions. See Gross, 765 So.2d at 42

.

In Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997), the United States Supreme Court specifically found that a RICO conspirator need not commit or agree to commit two predicate acts himself:

It makes no difference that the substantive offense under § 1962(c) requires two or more predicate acts. The interplay between subsections (c) and (d) does not permit us to excuse from the reach of the conspiracy provision an actor who does not himself commit or agree to commit the two or more predicate acts requisite to the underlying offense.

See Id. at 65, 118 S.Ct. 469.

The court noted that the federal RICO conspiracy statute, § 1962(d), broadened conspiracy coverage by omitting the requirement of an overt act; it did not, at the same time, work the radical change of requiring the Government to prove that each conspirator agreed that he would be the one to commit two predicate acts. Id. at 64, 118 S.Ct. 469. The RICO conspirator, according to the court, must:

intend to further an endeavor which, if completed, would satisfy all of the

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