Pizzo v. State
| Decision Date | 20 September 2005 |
| Docket Number | No. 2D03-4913.,2D03-4913. |
| Citation | 916 So.2d 828 |
| Parties | James Frank PIZZO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Bruce S. Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
James Frank "Jimmy" Pizzo seeks review of his judgment and sentence for five counts of mortgage fraud, six counts of grand theft, and one count each of organized fraud, conspiracy to commit racketeering, and racketeering, which arose out of the operation of his family-owned home improvement business. We affirm Mr. Pizzo's conviction for racketeering. Because the jury instructions regarding mortgage fraud and conspiracy to commit racketeering were fundamentally erroneous, we reverse those convictions and remand for a new trial. We also reverse Mr. Pizzo's convictions for grand theft and organized fraud because dual convictions for those charges violate the prohibition against double jeopardy. Thus, on remand the trial court must grant a judgment of acquittal on the lesser of the two charges.
Mr. Pizzo started East Coast Exteriors, Inc., in 1997 in Vero Beach. East Coast Exteriors sold windows, soffits, fascia, and siding through telemarketing followed by direct sales to homeowners. The only officer and director of the new company was Mr. Pizzo's mother, Edwina, but her role was strictly nominal. Mr. Pizzo was the owner of the company and the ultimate decision-maker. Mr. Pizzo's wife, Rozlyn, worked as the office manager. Mr. Pizzo's father, James, supervised East Coast Exterior's work crews.
Eventually, Mr. Pizzo opened another East Coast Exteriors office in Manatee County, and customer complaints led to the charges in this case. The State charged Mr. Pizzo; his wife, Rozlyn; his father, James; and his mother, Edwina, with mortgage fraud, grand theft, organized fraud, conspiracy to commit racketeering, and racketeering.1 The fraud charges were based on misrepresentations that the windows being sold were "Reynolds" windows when they were actually Caradon Better Bilt windows distributed by Reynolds Building Products; misrepresentations regarding East Coast Exteriors' history and capacity to do the work; and misrepresentations and omissions that resulted in liens and mortgages being recorded against customers' properties without their knowledge. The grand theft charges, which were only filed against Mr. Pizzo, were based on the fact that customers were sold the lesser-quality Caradon Better Bilt windows at a price they were quoted for "Reynolds" windows.
The evidence at trial established that East Coast Exteriors' telemarketers used scripts dictated by Mr. Pizzo in which they asserted that they represented "Reynolds." The telemarketers continued to make this misrepresentation even after a Reynolds Building Products branch manager asked Mr. Pizzo to have his staff refrain from using the name "Reynolds" in any capacity in their telemarketing and followed up with a "cease and desist" letter.
The sales representatives were all trained by Mr. Pizzo. They advised customers that East Coast Exteriors was a "very large company," in business "from 12 to over 20 years," having done "thousands of projects" without complaints. Sales representatives told customers that they did not work on commission, though they did. They represented that the crew workers were salaried employees of East Coast Exteriors, trained by Reynolds, when in fact that was not true.
The sales representatives' primary tool was known colloquially as the "pitch book." The pitch book contained pictures of Reynolds products with the Reynolds Aluminum logo. It also contained what an agent of the Reynolds Metal Company called a "doctored letter" stating that East Coast Exteriors was the "exclusive authorized dealer for Reynolds Aluminum Vinyl Tuf building products, as well as a Reynolds Better-Bilt window distributor for Southeast Florida." The pitch book also contained a "doctored letter" regarding an award that was never given to East Coast Exteriors.
The Reynolds Metal Company agent concluded that Mr. Pizzo knew he was buying Caradon Better Bilt windows from Reynolds Building Products. However, Mr. Pizzo trained East Coast Exteriors' telemarketers and sales representatives to represent the windows as "Reynolds Better Bilt," and the pitch book contained a "warranty" for Better Bilt windows that contained the Reynolds logo.
East Coast Exteriors' sales representatives also offered various financing options to their customers who could not pay cash. In-house financing was available as was a retail mortgage through American General Finance or a consolidation loan through a mortgage broker. Sales representatives routinely convinced customers to obtain financing by calling Mr. Pizzo to obtain a quote for a low interest rate which the customer never received.2 If a customer signed a retail mortgage or consolidation loan agreement, the lender acquired the right to record "UCC-1s," which imposed a lien against the property to which the fixture attached until the loan was satisfied.
The sales representatives took various financing forms, including the UCC-1s and certificates of completion, to the customers' homes and obtained signatures at the time the contracts were signed. Mr. Pizzo trained the sales representatives not to discuss the UCC-1s, and customers were not told that they would be used to impose a lien on their homes. Some were told that the UCC-1 was for "state taxes." The sales representatives were able to obtain some customers' signatures on the UCC-1s without their knowledge because the sales representatives were trained by Mr. Pizzo to present the forms in a bundle. The sales representatives convinced the customers to sign certificates of completion before the work was started by misrepresenting that it would speed up their financing. The sales representatives were not trained to inform the customers of their legal right to rescind the contract within seventy-two hours, and although required by law, this legal right was not mentioned in the forms provided to the customers. In their efforts to obtain customers' signatures without their knowledge of the purpose of the forms, the sales representatives did not obtain proper witness and notary signatures. Those signatures were provided after the forms were returned to the office.
American General required a copy of the sales contract, a loan application, and a certificate of completion signed by the customer prior to loan processing and the filing of a UCC-1. Mr. Pizzo's sales procedure allowed East Coast Exteriors to provide American General or the mortgage broker all of the paperwork required for the filing of a UCC-1. Thus, liens were imposed against customers' property before they became aware of their true interest rate and before the work was complete. Because the customers signed certificates of completion before the work was even started, many of them had liens imposed, even though they were not satisfied with the work.
Mr. Pizzo raises nine issues on appeal, three of which require reversal. We affirm without comment the issues regarding (1) the admission of bad acts evidence, (2) the admission of certain testimony of Special Agent Charles Leonard, (3) the denial of Mr. Pizzo's request for a special jury instruction on mortgage fraud, and (4) the oral delivery of the jury instructions on organized fraud. We reverse as to the issues regarding (1) the oral delivery of the jury instructions on mortgage fraud, (2) the instruction of the jury on conspiracy to commit racketeering, and (3) the adjudication for both organized fraud and grand theft and its double jeopardy implications. Our reversal renders Mr. Pizzo's remaining two issues regarding his sentence moot. However, we address these issues in order to assist the court on remand.
The trial court has a duty to orally deliver the jury instructions in their entirety. Fla. R.Crim. P. 3.390(b) (). This rule is mandatory. Chaky v. State, 651 So.2d 1169, 1172 (Fla.1995).
This case involved a total of eighteen counts of criminal activity, and the conspiracy to commit racketeering and racketeering charges contained a total of twenty-two predicate incidents. As a result, the jury instructions were inevitably going to be complex. It is understandable that the trial court wanted to abbreviate the instructions so as to avoid repetition. However, due to the complex nature of the charges, it was imperative that the trial court give its oral delivery of the jury instructions in the least confusing way possible. We are not suggesting that it is fundamental error to fail to read each and every sentence of the jury instructions in such cases, but the manner in which the instructions were presented as to the mortgage fraud charges would leave the jury hopelessly confused.
The trial court read the mortgage fraud instruction in full only for count one, and that instruction in itself was somewhat confusing:
Before you can find the defendant James Frank Pizzo, also known as James Pizzo, Jr., guilty of the crime of mortgage fraud, the State must prove the following three elements beyond a reasonable doubt:
1. The defendant acted with intent to defraud John and/or Mary Maxwell.
2. The defendant obtained any mortgage note, promissory note, or other instrument evidencing a debt from any person, or the defendant obtained the signature of any person to any mortgage, mortgage note, promissory note, or other instrument evidencing a debt.
3. By color or aid of fraudulent or false...
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