PRELIMINARY STATEMENT

Appellant, XXXXXXXXXX, the Defendant in the lower tribunal, will be referred to herein by as “the Defendant” or by name.  Appellee, the State of Florida, will be referred to as “the State.”

The Record on Appeal is contained, in total, in thirty (30) volumes.  References to the two (2) record volumes will be cited using the abbreviation “R” followed by the appropriate volume and page numbers.  References to the nine (9) trial transcript volumes will be cited using the abbreviation “T” followed by the appropriate volume and page numbers.  References to the nineteen (19) exhibit volumes will be cited using the abbreviation “E” followed by the appropriate volume and page numbers.

STATEMENT OF THE CASE AND OF THE FACTS

A.      Nature of the Case

This is a direct appeal of a final criminal judgment and sentence of the Circuit Court of the XXXXXXXXXX in and for XXXXXXXXXX County, Florida, Case Number: XXXXXXXXXX, rendered against XXXXXXXXXX, Appellant, Defendant below, on September 30, 2009. (R:II: 208-213; 227-234).

B.      Course of Proceedings Below and Statement of the Facts

The prosecution of XXXXXXXXXX began with the filing of an information in July of 2008. (R:I: 1).  The State eventually filed a 5th Amended Information charging XXXXXXXXXX with four (4) counts of grand theft and one count of racketeering. (R:I: 15-17).  The State alleged that XXXXXXXXXX had converted funds from various sources in the course of her association with the Governor’s Front Porch Revitalization Council of Pensacola[1]. (R:I: 23-24).  The 5th Amended Information alleged that XXXXXXXXXX did conduct in a pattern of racketeering through the Council.  (R:I: 16).

XXXXXXXXXX case proceeded to a trial which began in August of 2009. (R:I: 9).  XXXXXXXXXX was represented by Assistant Public Defender XXXXXXXXXX. (R:I: 42-43).  During XXXXXXXXXX trial Mr. XXXXXXXXXX indicated that he was not familiar with the discovery material. (T:II: 229); (T:IV: 764-772; 782; 806-816).  During the course of the trial XXXXXXXXXX indicated that he was unfamiliar with the specific nature of the charges. (T:V: 957-958).  XXXXXXXXXX also indicated that he was unaware a standard jury instruction existed for the first degree felony of racketeering for which XXXXXXXXXX was standing trial. (T:V: 867).

The State brought forth witnesses who described XXXXXXXXXX relationship with the Council.  The Council was the Pensacola branch of a neighborhood revitalization initiative which was implemented by former Florida Governor Jeb Bush.  At different points in time the Council was organized under the Governor’s office and later under the Department of Community Affairs. (T:II: 246-247; 303).  XXXXXXXXXX was not a direct employee of the Council but she was the liaison assigned to the Council from the Department of Community Affairs. (T:II: 301).  One of XXXXXXXXXX duties in conjunction with her work for the Council was to handle Council funds. (T:II: 304).

An audit of Council funds later revealed that the Council’s recordkeeping and financial organization were in a state of disarray. (T:II: 263); (T:III: 435).  The Department of Community Affairs eventually sent employees from its inspector general’s office to Pensacola to obtain information. (T:IV: 738-740).  These Department of Community Affairs employees referred the matter for a criminal investigation after reviewing the records. (T:IV: 743; 758).  A fraud detective with the Department of Financial Services investigated the matter. (T:IV: 758).  Eventually a certified fraud examiner retained by the Office of the State Attorney reviewed the records as well. (T:IV: 772).

The certified fraud examiner testified at the trial multiple times. (T:IV: 772); (T:V: 830; 884; 903; 945); (T:VI: 1033; 1083); (T:VII: 1224).

A witness from the Florida Department of Financial Services testified as to warrants which XXXXXXXXXX received for travel reimbursements. (T:II: 336).  The certified fraud examiner eventually testified that XXXXXXXXXX had double billed the State of Florida for travel expenses. (T:IV: 791).

Two witnesses from two separate Pensacola banks testified as to XXXXXXXXXX banking activity. (T:II: 362-378); (T:III: 412-428).  The certified fraud examiner testified that XXXXXXXXXX had diverted grant money from the Council’s accounts to her own personal accounts on numerous occasions. (T:V: 844; 891); (T:VI: 1038; 1097).  Through the course of the trial the State called numerous witnesses who testified that XXXXXXXXXX did not have permission to convert Council money for her own use. (T:III: 560-561); (T:IV: 604-605; 685; 689; 695; 730-731).

Testimony from the State’s witnesses indicated that Council funds had paid a tax lien on XXXXXXXXXX home. (T:V: 893-898); (T:V: 900-903).  Testimony from the State’s witnesses indicated that XXXXXXXXXX had used Council funds to purchase a Home Depot gift card.  The testimony indicated further that XXXXXXXXXX subsequently used the Home Depot gift card to purchase various items after she resigned from her association with the Council. (T:V: 919;925; 926; 932; 937); (T:V: 912).

Testimony from the State’s witnesses indicated that XXXXXXXXXX was employed at various times by several different nonprofit organizations in addition to her employment with the Council. (T:VI: 1141; 1147).  It was the State’s theory that XXXXXXXXXX employment with these other nonprofit organizations was wholly fraudulent; and that XXXXXXXXXX had committed grant theft of salary in earning income for work not actually performed for some or all of her employers. (T:VIII: 1563-1568).

Testimony from the State’s witnesses indicated that XXXXXXXXXX had converted corporate donations to the Council and siphoned those funds into her own personal bank accounts. (T:VI: 1097).  The State called several witnesses who testified that XXXXXXXXXX did not have permission to convert the corporate donations for her own use. (T:VI: 1047; 1053; 1075)

The State eventually rested. (T:VII: 1227).  The defense moved for a judgment of acquittal. (T:VII: 1229-1235).  The defense motion was denied. (T:VII: 1235).

XXXXXXXXXX testified in her own defense. (T:VII: 1242-1334).  The defense rested. (T:VIII: 1472).  The State put on rebuttal witnesses. (T:VIII: 1472; 1485; 1487; 1495).  The State eventually rested its rebuttal case. (T:VIII: 1508).  A charge conference was held. (T:VIII: 1510-1529).  Closing arguments were presented to the jury. (T:VIII: 1531); (T:IX: 1592; 1616).  The jury was instructed. (T:IX: 1627-1645).  The jury returned a guilty verdict. (T:IX: 1651-1652).

At a later hearing XXXXXXXXXX was sentenced to ten (10) years in prison. (R:II: 208-214); (R:I: 227-234).  A timely Notice of Appeal was filed. (R:II: 245).  This appeal follows.

SUMMARY OF THE ARGUMENT

Ground I – The evidence supporting XXXXXXXXXX racketeering conviction is completely insufficient as a matter of law.

GROUND I

THE STATE’S EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT XXXXXXXXXX CONVICTION FOR RACKETEERING .

 

sufficiency of evidence on appeal

“[A]n argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error-i.e., an error that reaches to the foundation of the case and is equal to a denial of due process.” F.B. v. State, 852 So. 2d 226, 230-31 (Fla. 2003).  “Where such fundamental error occurs, an appellate court will forgive the failure of preservation and review the legal sufficiency of the conviction on appeal.” Smith v. Crosby, 872 So. 2d 279, 283 (Fla. 4th DCA 2004).

standard of review

The Florida Supreme Court articulated the standard of review appropriate for a sufficiency of the evidence claim in Pagan v. State, 830 So. 2d 792 (Fla. 2002):

Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.

 

Id. at 803 (internal citations omitted).

rule

XXXXXXXXXX was charged with violating Florida Statute § 895.03(3). (R:I: 17).  Pursuant to the statute, the elements of this racketeering offense are (1) conduct or participation in an enterprise; (2) through a pattern of racketeering activity. Lugo v. State, 845 So. 2d 74, 97 (Fla. 2003).

To prove the element of “enterprise,” the State is required to prove “(1) an ongoing organization, formal or informal, with a common purpose of engaging in a course of conduct, which (2) functions as a continuing unit.” See generally Gross v. State, 765 So. 2d 39, 42 (Fla. 2000)(discussing elements of a crime under Florida’s RICO statute).  At the trial court XXXXXXXXXX was charged with conducting or participating in the Governor’s Front Porch Revitalization Council of Pensacola through a pattern of racketeering activity. (R:I: 16).  The Council itself was the charged enterprise. (R:I: 15-17).

Proof of the existence of an “enterprise” is necessary in any RICO conviction because it is a substantive element of the crime. United States v. Turkette, 452 U.S. 576 (1981); Brown v. State, 652 So. 2d 877 (Fla. 5th DCA 1995).

“To satisfy the ‘enterprise’ element of the RICO statute, the State must demonstrate that a defendant actedin concert with at least one other person, organization, or entity.” Doorbal v. State, 983 So. 2d 464, 492 (Fla. 2008)(underline added). See also State v. Jackson, 677 So. 2d 938, 941 (Fla. 2d DCA 1996); Day v. State, 541 So. 2d 1202 (Fla. 2d DCA 1988); Holley v. State, 564 So. 2d 595 (Fla. 2d DCA 1990); Parsley v. State, 553 So. 2d 730 (Fla. 2d DCA 1989).  The concept of an enterprise requires the existence of a separate and identifiable entity through which criminal activity is conducted. Wilson v. State, 596 So. 2d 775 (Fla. 1st DCA 1992).

facts

Michael Adkins, the certified fraud examiner retained by the State as an expert witness, testified repeatedly at XXXXXXXXXX trial. (T:IV: 772); (T:V: 830; 884; 903; 945); (T:VI: 1033; 1083); (T:VII: 1224).  Adkins testified that the opportunity for theft existed within the Council due to the absence of oversight and internal financial controls. (T:IV: 777).

Adkins described XXXXXXXXXX double billing of travel expenses. (T:IV: 786-787).  According to Adkins, XXXXXXXXXX would write herself checks for travel expenses and subsequently receive travel reimbursements from the State of Florida for the same travel expenses. (T:IV: 791).  Through this course of conduct Adkins testified that XXXXXXXXXX improperly obtained over six thousand dollars ($6,000.00). (T:IV: 791).  This conduct constituted the grand theft charged in Count 1 of the 5th Amended Information. (T:XIII: 1537).

Adkins testified as to grant money which found its way into XXXXXXXXXX personal accounts. (T:V: 832-843).  Adkins testified that XXXXXXXXXX would receive a check which was made-out to the Council.  XXXXXXXXXX would take that check to the bank used by the Council. (T:V: 833-834).  Adkins testified that XXXXXXXXXX would endorse and deposit the check into a Council account and at the same time would request a counter check in order to fund a cashier’s check. (T:V: 834).  Adkins testified that XXXXXXXXXX would take the cashier’s check to another bank where she held personal accounts and either deposit the check there or only deposit a portion and take the remaining portion in cash. (T:V: 834).  Adkins testified that this scenario unfolded repeatedly. (T:V: 836-839; 841-843).  It was through these banking maneuvers, Adkins testified, that XXXXXXXXXX was able to convert Council money into her personal accounts.  This behavior was repeated as to several different sources of grant funding. (T:V: 887-891); (T:VI: 1036).  Through the course of the trial the State called numerous witnesses who testified that XXXXXXXXXX did not have permission to convert Council money for her own use. (T:III: 560-561); (T:IV: 604-605; 685; 689; 695; 730-731).  XXXXXXXXXX conduct in converting grant monies from Council checks into her own accounts constituted the grand theft charged in Count 2 of the 5th Amended Information. (T:XIII: 1544).

Testimony from the State’s witnesses indicated that XXXXXXXXXX was employed at various times by several different nonprofit organizations in addition to her employment with the Council. (T:VI: 1141; 1147).  It was the State’s theory that XXXXXXXXXX’s employment with these other nonprofit organizations was wholly fraudulent and that XXXXXXXXXX had committed grand theft of salary in earning income for work not actually performed for some or all of her employers. (T:VIII: 1563-1568).  XXXXXXXXXX conduct in receiving the salaries she received from several different sources constituted the grand theft charged in Count 4 of the 5th Amended Information. (T:XIII: 1580).

It was alleged that XXXXXXXXXX had converted corporate donations which were made to the Council. (R:I: 15-16).  Adkins testified that in a manner identical to that involving the grant money described above; XXXXXXXXXX obtained official checks and converted corporate donations intended for the Council to her own personal accounts. (T:VI: 1084-1097).  The State called several witnesses who testified that XXXXXXXXXX did not have permission to convert the corporate donations for her own use. (T:VI: 1047; 1053; 1075).  XXXXXXXXXX conduct in converting the corporate donations to her own accounts constituted the grand theft charged in Count 4 of the 5th Amended Information. (T:XIII: 1579).

Nowhere, in any of Adkins’ extensive testimony in this case, did he testify that XXXXXXXXXX acted in concert with any other entity.  XXXXXXXXXX simply took a check to one bank, deposited the check, obtained an official check and took that check to her own bank.  The evidence established that XXXXXXXXXX did this repeatedly and that she individually converted Council money for her personal use.

argument

Instead of acting “in concert” with another entity the evidence established that XXXXXXXXXX simply acted as an individual and took money from a legitimate organization.  The facts brought forth at trial are legally insufficient to support a racketeering conviction.  The State failed to establish that XXXXXXXXXX acted in an enterprise through her racketeering activity.  Proof of the existence of an “enterprise” is necessary in any RICO conviction because it is a substantive element of the crime. United States v. Turkette, 452 U.S. 576 (1981); Brown v. State, 652 So. 2d 877 (Fla. 5th DCA 1995).

The evidence established that XXXXXXXXXX individually and covertly took money away from the Governor’s Front Porch Revitalization Council of Pensacola. The evidence tended to establish that XXXXXXXXXX did so for her own personal gain.  This evidence is insufficient to support a racketeering conviction.  The evidence established that XXXXXXXXXX did not participate in or act in concert with any enterprise.  The evidence established that XXXXXXXXXX was placed in a position of trust with Council funds and banking access; and that she siphoned money from the Council for her own benefit.  Instead of establishing that XXXXXXXXXX acted in concert with the Council in the course of a pattern of racketeering, the State’s evidence established that XXXXXXXXXX acted individually and covertly in order to obtain council funds for her own use.  The evidence established a classic case of employee/associate embezzlement.  There was absolutely no evidence which tended to establish that XXXXXXXXXX participated in the Council through a pattern of racketeering activity.  Instead, the Council in this case was substantially a victim of XXXXXXXXXX individual criminal acts.  XXXXXXXXXX obviously participated in the Council; however her crimes were separate and apart from her legitimate Council activities.  This distinction was brought forth time and again by multiple State witnesses who testified that XXXXXXXXXX was not acting with Council permission when she converted Council money for her own use. (T:III: 560-561); (T:IV: 604-605; 685; 689; 695; 730-731).

The evidence established that XXXXXXXXXX criminal acts were those of a business associate defrauding a legitimate organization.  The facts constitute a course of criminal conduct which is miles away from the infiltration of organized crime into a legitimate business which was the original purpose underlying Florida’s racketeering statute. State v. Otte, 887 So. 2d 1186, 1189-1190 (Fla. 2004).  Due to the enhanced sentences involved in RICO, it is essential that definitions used in RICO statutes be strictly construed in order to insure that criminal organizations, which are RICO’s target, are distinguished from individuals who merely associate for the commission of crime. Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F. 2d 986, 996 (8th Cir. 1989)[2].

The Florida Supreme Court, in its opinion setting-out what is necessary to support a Florida racketeering conviction, explicitly cautioned the State against invoking the RICO statute in order to prosecute pedestrian sets of criminal acts.  Gross v. State, 765 So. 2d 39, 42 n.5 (Fla. 2000)(“Courts must always be on the lookout for the putative RICO case that is really nothing more than an ordinary fraud case clothed in the Emperor’s trendy garb”)(quoting Schmidt v. Fleet Bank, 16 F. Supp 2d 340, 346 (S.D.N.Y. 1998)).  The Florida Supreme Court also quoted the Eleventh Circuit in its holding that the graveman of a RICO offense isconducting an enterprise through a pattern of racketeering activity. United States v. Zielie, 734 F.2d 1447, 1463 (11th Cir. 1984)(emphasis added).

The Fourth District has recently joined other courts in cautioning the State to use its prosecutorial discretion wisely in deciding which persons to charge with racketeering. Vargas v. State, 34 So. 3d 44 (Fla. 4th DCA 2010) see also Jackson v. State, 858 So. 2d 1211, 1213 (Fla. 3d DCA 2003) (“[T]he concept of enterprise is not to be applied to ‘garden variety criminal undertakings.’”) (citation omitted).

This decisional warnings clash sharply with the all encompassing nature of racketeering as described by the Assistant State Attorney assigned to prosecute XXXXXXXXXX. (T:I: 35; 44; 108-110); (T:V: 928).

Instead of conducting an enterprise though a pattern of racketeering activity or acting in concert with any other person, organization or entity; XXXXXXXXXX took money from a legitimate source and individually converted it for her own use.  This conduct, while criminal, is insufficient to establish racketeering.  XXXXXXXXXX conviction for that offense should be reversed.

 

 

 

 

CONCLUSION

          WHEREFORE, the Appellant/Defendant respectfully requests this Honorable Court reverse her judgment and sentence as to Count 5 (the racketeering count) and remand this cause to the trial court with instructions that Count 5 be discharged and that XXXXXXXXXX be appropriately resentenced.

 

Respectfully submitted,

 

______________________

Luke Newman

Luke Newman, P.A.

908 Thomasville Road

Tallahassee, Florida 32303

850.224.4444 (phone)

850.224.9335 (fax)

Fla. Bar ID 0859281

luke@lukenewmanlaw.com

 

CERTIFICATE OF SERVICE

 

I HEREBY CERTIFY on the _________ day of June, _________ a copy of the foregoing was furnished via First Class US Mail to:

 

Criminal Appeals Division

Office of the Attorney General

The Florida Capitol
Tallahassee, FL 32399-1050

_____________________________

Luke Newman

Fla. Bar No.: 0859281

 

CERTIFICATE OF COMPLIANCE REGARDING FONT SIZE

          Counsel for the Appellant hereby certifies, pursuant to Florida Rule of Appellate Procedure 9.210(a)(2), that the type used in this brief is Times New Roman 14 point proportionally spaced font.

_____________________________

Luke Newman

Fla. Bar No.: 0859281


[1] Hereinafter “Council”

[2] The Florida RICO statute was patterned after the federal RICO statute.  For this reason Florida courts have consistently looked to federal authority for guidance in construing RICO provisions. State v. Nishi, 521 So. 2d 252 (Fla. 3d DCA 1988).