CHARLES F. ESSKUCHEN, JR., APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Esskuchen was convicted of racketeering, securities fraud, and related offenses. On appeal, he challenged the statutory interpretation of securities exemptions, the admission of certain evidence, venue, and a verdict form clerical error. The court affirmed his convictions on all grounds.
The court affirmed on all grounds: the legislative addition clarifying the 'prime quality' requirement did not substantively change the statute; any evidentiary error was harmless; venue was properly established under Florida Statutes section 517.12 for sales conducted from Esskuchen's offices via representatives; and a clerical error in the verdict form could be corrected before the jury was polled or discharged.
[1] Statutory amendments that add specific language to clarify existing law are considered to be for clarification only and do not change the effect of the prior statute.
[2] Evidence of investors not specifically named in an information may be admissible if relevant to charges of racketeering and organized fraud.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Our act was patterned after the federal act which required that securities be 'prime' investments in order to be exempted from filing requirements.”
Establishes that the statutory requirement for 'prime quality' securities was not a substantive change but a clarification consistent with federal law
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEsskuchen operated unregistered securities offices in Seminole and Volusia Counties and sold unregistered securities through representatives who conta…
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HARRIS, J.
• Esskuchen was convicted of racketeering, multiple counts of securities fraud, multiple counts of sale of unregistered securities, multiple counts of sale' of securities by an unregistered agent, and organized fraud of over $50,000. He appeals; we affirm.
First, Esskuchen argues that the securities involved in this action were exempted from the filing requirement and that the State erred in interpreting the statute in effect at the time alleged in the information as requiring that the investments be “prime quality negotiable commercial paper” in order to be exempted. Appellant notes that the legislative addition of this specific requirement was added after the events alleged in his charges.
We agree with the State, however, that such addition was for clarification only and did not change the effect of the previous statute. Our act was patterned after the federal act which required that securities be “prime” investments in order to be exempted from filing requirements. See S.E.C. v. American Board of Trade, Inc., 751 F. 2d 529, 538-39 (2d Cir.1984). Further, the act which specifically added this language referred to it as a “clarifying application of a securities registration exemption.” Esskuchen also contends that the court erred in permitting into evidence records which included information about investors not mentioned in the information.
The trial court believed these records were relevant to the charges of racketeering and organized fraud. Even if error, we find the admission of these records without excising those of other investors was, at worst, harmless.
Esskuchen next argues that proper venue was not established for a number of the charges. Esskuchen operated from offices in Seminole and Volusia Counties when dealing in these securities, but some charges relate to instances in which his sales representatives contacted potential investors and consummated securities sales in counties -in which Esskuchen had no office.
However, the offenses charged in this case relating to sales of securities by an unregistered agent are based on section 517.12, Florida Statutes, which prohibits the sale of securities “from offices in this state ... by mail or otherwise” by an unregistered dealer. If Esskuchen operated securities offices (unregistered) in Seminole and Volusia Counties and sold securities (unregistered) from said offices by use of representatives, then we believe venue is proper both in the county in which such offices are located and from which representatives are illegally sent and in the county in which said representatives illegally transact the exchange of the unregistered securities.
Next, Esskuchen argues that he was entitled to a mistrial on certain counts in which a clerical error was discovered after the court “accepted” the verdict and before the jury was discharged. On seven of the counts involving securities fraud, the jury form indicated that the jury could find the defendant guilty or not guilty of racketeering.
The jury found him guilty in each case. The court received the verdict from the foreman and delivered it to the clerk to be read. During the reading of the verdicts, the error was discovered.
The jury, of course, had not been polled. The court gave the jury the opportunity to correct the forms and sent the jury back to deliberate the charges. The same verdict of guilty resulted. Esskuchen claims the verdict was received when it was read in open court and it was too late to correct the error.
We disagree. We believe a clerical error in the verdict form which becomes apparent before the jury is polled or discharged may be resubmitted to the jury for clarification or correction.
We find no merit to the State’s cross-appeal.
AFFIRMED.
COBB, J. and ORFINGER, M., Senior Judge, concur.
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Devandal Thomas v. State, 789 So. 2d 1104 (Fla. 4th DCA 2001)…urt polled each juror to insure that the ultimate verdict had been decided upon during the first deliberation, and that the lack of a mark under section A. had simply been an oversight. Each juror gave that assurance. Based upon Esskuchen v. State, 756 So. 2d 156 (Fla. 5th DCA 2000) and Davis v. State, 631 So. 2d 318 (Fla. 3rd DCA 1994), we find that there was no contamination of the jury verdict in this case. The trial court did not err in resubmitting the issue to the jury, which clearly indicated the exis…
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Fertilien v. State, 848 So. 2d 450 (Fla. 4th DCA 2003)…counts. Instead, the jury placed a check mark next to the charge “Trafficking in Cocaine.” Further, when polled, the jury confirmed that it had submitted a verdict of guilty, as to count I. Fertilien urges this court to construe Esskuchen v. State, 756 So. 2d 156 (Fla. 5th DCA 2000), as mandating that failure to have a verdict resubmitted to the jury for further deliberations when the verdict contains a clerical error is fundamental error. In Esskuchen, the defendant argued that it was too late to correct an…
Authorities Cited
- Sec. & Exch. Comm'n v. The Am. Bd. OF Trade, Inc., 751 F.2d 529 (2d Cir. 1984)