WILLIE E. CLARK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1994-11-18
No. 93-02489
RYDER, A.C.J., and ALTENBERND and LAZZARA, JJ., concur.
645 So. 2d 575 Florida District Court of Appeal, Second District (1994) Caution
Cited by 12 cases

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Synopsis

Willie Clark appeals his convictions for conspiracy to commit racketeering and grand theft, while the state cross-appeals his acquittal on the underlying racketeering charge. The court affirms the conspiracy and grand theft convictions, reverses the racketeering acquittal based on sufficient evidence of a separate enterprise organization, and remands for resentencing under the sentencing guidelines.


Holding

The court held that sufficient evidence supported the racketeering conviction because reasonable jurors could find that Clark's organized scheme constituted an enterprise separate from the predicate racketeering acts. The court also held that the trial court erred in departing from sentencing guidelines because the factors cited (extensive premeditation, preparation, and ongoing criminal activity) are inherent components of racketeering and conspiracy and cannot support departure sentences.


Headnotes

[1] An enterprise under the Florida RICO Act can exist in the absence of a formally structured group, requiring only proof of a purposive systematic arrangement between membe…

[2] A judgment of acquittal should be reversed if there is any view of the evidence, taken in the light most favorable to the state, that can be sustained under the law.

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Key Quotes

“an enterprise is an ongoing organization whose various associates function as a continuous unit separate and apart from the pattern of racketeering in which the organization engages”

Establishes the legal test for what constitutes a RICO enterprise under Florida law, citing Boyd v. State and federal precedent.

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Facts & Procedural History

Since the late 1980s, Clark operated a organized theft and fraud scheme targeting Publix supermarkets. He recruited accomplices, primarily women, to s…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Willie Clark appeals his judgments and sentences for conspiracy to commit racketeering and for one count of grand theft. The state cross-appeals Clark’s judgment of acquittal of racketeering.1 We affirm Clark’s conspiracy and grand theft convictions and reverse the judgment of acquittal and remand for resentencing.2

Clark was charged by amended information with one count of conspiracy to commit racketeering, one count of racketeering, and two counts each of forgery, uttering a forged instrument, and grand theft. A jury found Clark guilty as charged, but the trial court subsequently granted his motion for judgment of acquittal of the racketeering count. The trial court departed from the guidelines and sentenced Clark to thirty years’ imprisonment on the conspiracy to commit racketeering count, to be followed by two consecutive five-year terms of imprisonment for the remaining counts. Clark was charged with violating sections 895.03(3) and (4), Florida Statutes (1991), of the Florida Racketeer Influenced and Corrupt Organization (RICO) Act. Those sections of the Act provide in pertinent part as follows:

(3) It is 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.

(4) It is unlawful for any person to conspire or endeavor to violate any of the provisions of subsections (1), (2), or (3).

“Enterprise” is defined in pertinent part as “any ... group of individuals associated in fact although _ not a legal entity.” § 895.02(3). “Pattern of racketeering activity” is defined as engaging 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.

§ 895.02(4).

“Racketeering activity” is defined as any of the crimes chargeable by indictment or information that are enumerated in section 895.02(l)(a), which crimes include forgery and grand theft.

In entering the judgment of acquittal of the racketeering count, the trial court ruled that the state had not proven the third part of the enterprise element of racketeering as set forth in Boyd v. State, 578 So. 2d 718 (Fla. 3d DCA), review denied, 581 So. 2d 1310 (Fla.1991). In Boyd, the Third District explained, citing the seminal case of United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), as well as United States v. Riccobene, 709 F. 2d 214 (3d Cir.1983), that an enterprise is an ongoing organization whose various associates function as a continuous unit separate and apart from the pattern of racketeering in which the organization engages. Boyd, 578 So. 2d at 721-722.

The trial court found that the state had only shown the existence of a loose group of individuals who associated with Clark but not with one another and who were only linked by the offenses which formed the predicate acts of racketeering. Fully cognizant of the presumption of correctness with which a trial court’s ruling comes to this court, we hold that the grant of the judgment of acquittal was erroneous because the evidence in this ease was not such “that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974).

The evidence revealed that since the late 1980’s Clark had been operating a scam whereby he recruited mostly females to assist him in stealing wallets out of women’s purses in shopping carts in Publix supermarkets. (Publix markets were targeted because Clark believed they attracted more affluent shoppers.) Either Clark or one of his accomplices would divert the shopper’s attention and the other would grab the wallet. Clark would use the victims’ identifications to draft false birth certificates and social security cards for his accomplices to use to obtain false Florida identification cards. He drafted these documents in a home office that was fully equipped for such a purpose. The accomplices would then use the identification cards to withdraw money from the victims’ bank accounts by executing deposit slips for forged checks which also indicated a withdrawal.

This evidence was provided through the testimony of many of Clark’s numerous accomplices over the years. Although no one of these accomplices occupied a specific position during the entire period covered by the information, “an enterprise can exist in the absence of a formally structured group.” United States v. Young, 906 F. 2d 615, 619 (11th Cir.1990). “There must be proof, minimally, of a purposive systematic arrangement between members of the group.” Boyd, 578 So. 2d at 722. All of Clark’s accomplices clearly had the objective of making money. Some of them learned of Clark while in jail, and others were recruited by Clark or his accomplices at the time. Clark or one of his accomplices would instruct new recruits on how to distract shoppers in the supermarkets and steal their wallets and how to dress professionally and quickly execute the banking transactions. Clark even had a videotape on how to be a pickpocket. Some of the accomplices worked together, and they all had some knowledge that others were or had been involved in Clark’s scam. One of the accomplices testified that Clark told her that if she listened to him, she could eventually have others working for her as in a business.

We hold that reasonable persons can differ as to whether this evidence reveals the existence of an organization separate and apart from the pattern of racketeering activity— the thefts and forgeries — in which Clark and his accomplices engaged. Under such circumstances, the jury’s verdict should not have been disturbed. Lynch, 293 So. 2d at 45. Accordingly, we reverse the judgment of acquittal and remand with directions that the jury’s verdict of guilt on the racketeering count be reinstated.

Our disposition of the racketeering count necessitates the resentencing of Clark. We must direct that Clark be resentenced pursuant to the guidelines because the reasons given for his departure sentence — extensive premeditation, preparation, and ongoing criminal activity — are inherent components of racketeering and conspiracy and therefore may not be used to support a departure sentence for those offenses. See Fletcher v. State, 530 So. 2d 296 (Fla.1988).

Clark also argues that the evidence was insufficient to support both of his convictions of grand theft. This point has not been preserved for this court’s review as it was not raised in the trial court.

Accordingly, we affirm Clark’s convictions of conspiracy to commit racketeering and grand theft; we reverse the judgment of acquittal of racketeering; and we reverse Clark’s sentences and remand for resentencing pursuant to the guidelines.

Affirmed in part, reversed in part, and remanded for resentencing.

RYDER, A.C.J., and ALTENBERND and LAZZARA, JJ., concur. . See § 924.07(l)(j), Fla.Stat. (1991).

. Clark raised thirty-eight points on appeal, but we only find merit in the sentencing issue whiph we address later in this opinion. We note that Clark waived points twenty through thirty-eight by not presenting any arguments thereunder. Stewart v. Mack, 86 So. 2d 143 (Fla.1956).


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Citator

Cited By

  • Brown v. State, 652 So. 2d 877 (Fla. 5th DCA 1995)
    …t count. . In deciding the RICO issue, we are aware that the Second District recently addressed a somewhat similar factual issue and reversed a judgment of, acquittal entered after a jury had convicted the defendant of racketeering. Clark v. State, 645 So. 2d 575 (Fla. 2d DCA 1994). However, we conclude that pivotal factual distinctions between Clark and the instant case foreclose any finding of conflict. Particularly significant in Clark was the ongoing nature of the enterprise, its sophistication and the i…
  • Clark v. Sturks, 668 So. 2d 1106 (Fla. 2d DCA 1996)
    …Reversed and remanded. DANAHY, A.C.J., and ALTENBERND and FULMER, JJ., concur. . This court upheld Mr. Clark's convictions for conspiracy, racketeering, and grand theft. He is currently serving his sentences for these offenses. See Clark v. State, 645 So. 2d 575 (Fla. 2d DCA 1994), review denied, 652 So. 2d 816 (Fla.1995).…
  • Lealzo "Zodie" Howard and Eugene Howard v. State, 738 So. 2d 372 (Fla. 5th DCA 1999)
    …to support the charge under the three-prong test of Boyd v. State, 578 So. 2d 718, 721-22 (Fla. 3d DCA 1991), review denied, 581 So. 2d 1310 (Fla.1991).2 The facts of the instant case are more akin to the second district’s holding in Clark v. State, 645 So. 2d 575 (Fla. 2d DCA 1994), review denied, 652 So. 2d 816 (Fla.1995), than Brown v. State, 652 So. 2d 877 (Fla. 5th DCA 1995). Appellants complain about the admission of evidence through Mark Ross, .a drug dealer, that he had been threatened. This alleged…

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