STEVE FERGUSON

v.

THE REPUBLIC OF TRINIDAD AND TOBAGO, ET AL.

Third District Court of Appeal State of Florida

Opinion filed September¹⁰, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-880 Lower Tribunal No. 04-11813 ________________

Steve Ferguson, Appellant,

vs.

The Republic of Trinidad and Tobago, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge.

León Cosgrove Jiménez LLP, and Scott B. Cosgrove and William A. O'Leary; The Law Office of Stephen James Binhak, P.L.L.C., and Stephen J. Binhak; Ropes & Gray LLP, and Douglas Hallward-Driemeier and Isaac C.H. Sommers (Washington, DC) and Philip P. Ehrlich (Chicago, IL), for appellant.

White & Case LLP, and Raoul G. Cantero and James N. Robinson and Ryan A. Ulloa and Wyatt R. Smith (New York, NY), for appellees.

Before LOGUE, GORDO and LOBREE, JJ.

2

LOBREE, J.

Following nineteen years of litigation, with six related interlocutory proceedings and a month-long trial, Steve Ferguson (“Ferguson”) appeals from a final judgment rendered upon a jury verdict finding that he committed civil fraud, conspiracy to commit fraud, and violated Florida’s Civil Remedies for Criminal Practices Act, sections 772.103(3) and (4), Florida Statutes (portions of “Florida’s Civil RICO Act”). Upon our thorough review of the voluminous record evidence viewed in the light most favorable to the jury verdict, we affirm on all grounds. See Alvarez v. All Star Boxing, Inc., 258 So. 3d 508, 512 (Fla. 3d DCA 2018) (“We review the jury’s award . . . to see if it is supported by substantial competent evidence viewing the facts and all reasonable inferences in the light most favorable to the verdict.”). We write simply to address Ferguson’s argument that no domestic injury to the Republic of Trinidad and Tobago, et al. (the “Republic”) occurred.¹

considered preserved.” (emphasis added) (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985))).

LOGUE, J., concurring Florida’s Civil Remedies for Criminal Practices Act (“Florida Civil RICO”), section 772.104, Florida Statutes, contains no language limiting its extraterritoriality. Nor does it contain language requiring proof of a “domestic injury.” As framed in his initial brief, however, Ferguson argues that “Florida Civil RICO, which is patterned after federal RICO . . . incorporates the same presumption against extraterritoriality” as its federal counterpart and therefore requires proof of a “domestic injury.” This is the necessary premise to his further argument that Trinidad and Tobago failed to prove a domestic injury. In making this argument, Ferguson relies on RJR Nabisco v. Eur. Cmty., 579 U.S. 325 (2016). In RJR Nabisco, Justice Samuel Alito, writing for the majority, found that the federal counterpart to Florida Civil RICO had no extraterritorial application and therefore required proof of a domestic injury. Id. at 346. In doing so, he set forth “a two-step framework for analyzing extraterritoriality issues.” Id. at 337. “At the first step,” he held, “we ask whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies

BACKGROUND

Steve Ferguson appeals a final judgment after a jury trial in the amount of $131,318,840.47. The jury found that Ferguson and his co-defendants engaged in a decades-long scheme to fraudulently overcharge the Republic of Trinidad and Tobago for contracts to build a new airport. Because this appeal comes to us after a jury trial, the facts are viewed in the light most favorable to the jury’s verdict. In 1996, Trinidad and Tobago decided to build a new airport in Port of Spain—the Piarco International Airport. The project was funded by Trinidad and Tobago and was supervised by its entities. Appellant Ferguson is an American citizen active in Trinidad and Tobago. Among other things, he heads a group of companies known as the

DISCUSSION

On appeal, Ferguson raises multiple points. While the panel affirms on all grounds, I write only to address his claim, as he framed it in his initial brief, that “Florida Civil RICO, which is patterned after federal RICO, . . . incorporates the same presumption against extraterritoriality” as its federal counterpart and therefore requires proof of a “domestic injury.”

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A. Florida Civil RICO

Florida Civil RICO authorizes a civil cause of action with threefold damages for any person injured by a violation of its substantive prohibitions. § 772.104(1), Fla. Stat. Florida Civil RICO’s substantive provisions provide it is unlawful for any person to use the proceeds “from a pattern of criminal activity.” § 772.103(1), (4) Fla. Stat. A “[p]attern of criminal activity” is defined as “engaging in at least two incidents of criminal activity that have the same or similar intents, results, accomplices, victims, or methods of commission . . . and are not isolated incidents . . . .” § 772.102(4), Fla. Stat.

Florida Civil RICO is modeled after the federal Racketeer Influenced and Corrupt Organizations Act (“federal RICO”), 18 U.S.C. §§ 1962, 1964. Florida, however, separated its version of the federal RICO into two parts located in different chapters of the Florida Statutes. The part at issue here provides damages in actions brought by private parties and has been named by the Legislature as Florida’s “Civil Remedies for Criminal Practices Act.” §§ 772.101-.19, Fla. Stat. For convenience, this act is referred to as “Florida Civil RICO.” The other part provides criminal penalties, forfeitures, and civil remedies in proceedings commenced, for the most part, by investigative agencies and has been named by the Legislature as “Florida RICO

Thus, the “Florida RICO statute requires the same elements as a federal RICO claim, but ‘violation of the Florida RICO statute requires allegations of predicate acts that violated Florida law, rather than Federal law.’” Drummond v. Zimmerman, 454 F. Supp. 3d 1210, 1217 n.1 (S.D. Fla. 2020) (quoting Asbury v. Slider, No. 8:19-cv-874-T-36SPF, 2020 WL 871097, at *3 n.1 (M.D. Fla. Feb. 21, 2020)). “The elements of a RICO offense under the Florida RICO Act have been described as (1) the existence of an enterprise, which the defendant was employed by or associated with in committing the crimes, (2) a pattern of racketeering activity, and (3) at least two ‘incidents’ of racketeering or racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission, or that are otherwise interrelated by distinguishing characteristics and are not isolated incidents.” Shimek v. State, 610 So. 2d 632, 634–35 (Fla. 1st DCA 1992) (footnote omitted). Without belaboring the point, I believe the evidence before the jury, interpreted in the light most favorable to its verdict, contains sufficient competent substantial evidence to support a finding that these three elements were established.

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B. Extraterritoriality

Because the Florida laws are modeled after federal law, court interpretations of one often shed light on understanding the others. Mese v. State, 824 So. 2d 908, 912 (Fla. 3d DCA 2002) (“[T]he Florida RICO statute is patterned after the federal RICO statute, [and] Florida courts look to federal courts for guidance in construing RICO provisions.”); Moorehead v. State, 383 So. 2d 629, 631 (Fla. 1980) (“The Florida legislature incorporated the federal case law by explicitly defining ‘pattern of racketeering activity’ to include interrelated incidents that are not isolated.”). As Ferguson points out, Florida’s reliance on federal interpretations of the federal RICO statutes raises another point. Under federal RICO, claims for damages brought by private parties are barred if those claims “rest entirely on injury suffered abroad.” RJR Nabisco, 579 U.S. at 354. In RJR Nabisco, the Supreme Court dismissed a claim filed by the European Union for triple damages under federal RICO. The European Union alleged RJR Nabisco allowed its tobacco products to be used as a method of payment for illegal drugs trafficked into Europe. RJR Nabisco responded by arguing that the federal RICO statute providing for civil damages did not apply extraterritorially to its conduct at issue which occurred outside the territory of the United States. Its argument was based on the

15 canon of statutory construction that “[a]bsent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application.” Id. at 335. The Court assumed, without deciding, that the European Union’s allegations of the involvement by American companies and the use by the alleged conspirators of “the U.S. mails and wires,” among other things, sufficiently alleged ties to American commerce to bring the extraterritorial racketeering activity of the conspiracy within the reach of U.S. criminal laws at issue without offending the presumption against extraterritoriality. Id. at 345. The U.S. criminal laws at issue served as the required predicate offenses necessary for application of RICO’s civil remedy including the substantive criminal prohibitions contained in RICO itself. Id. Regarding the federal RICO’s civil remedy for damages, however, the Court conducted a different analysis. Writing for the majority, Justice Alito found that the federal counterpart to Florida Civil RICO had no extraterritorial application and therefore required proof of a domestic injury. Id. at 346. In doing so, he set forth “a two-step framework for analyzing extraterritoriality issues.” Id. at 337. “At the first step,” he held, “we ask whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially.”

18 Like the United States, however, Florida has a presumption against extraterritoriality. See, e.g., Young v. Norwegian Seafarers' Union, 138 So. 3d 1189, 1192 (Fla. 3d DCA 2014) (citing to federal decisions based on the presumption against extraterritoriality and holding “we similarly decline to extend Florida statutory or common law to reach such disputes, absent an express statement by the Legislature otherwise”); Burns v. Rozen, 201 So. 2d 629, 631 (Fla. 1st DCA 1967) (“Extraterritorial effect of an enactment is not to be found by implication.”). Like the federal civil RICO statute, the Florida Civil RICO statute has no express indication that it is intended to apply extraterritorially. Following the reasoning of the Supreme Court and applying Florida’s own presumption against extraterritoriality, Florida Civil RICO statute does not extend extraterritorially. Because it does not extend extraterritorially, we recognize that Florida’s Civil RICO statutes, like its federal counterpart, does not apply to claims that rest entirely on injury suffered abroad. Therefore, a plaintiff seeking damages under Florida Civil RICO must show a “domestic injury.”

violation of this section involving a child, a child’s guardian, or another person believed by the person to be a child or a child’s guardian.”).

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C. Proof of Domestic Injury

As mentioned above, the Supreme Court in RJR Nabisco did not examine the nature of the required domestic injury because that issue was waived. The Court, however, did address the nature of the required domestic injury in Yegiazaryan v. Smagin, 599 U.S. 533 (2023). Smagin was a resident of Russia. He obtained a multi-million dollar judgment in California against Yegiazaryan who lived in California. Smagin ultimately sued Yegiazaryan under federal RICO for alleged racketeering activities occurring in part in the United States but mainly occurring abroad to hide assets to prevent Smagin’s ability to collect the California judgment. Yegiazaryan argued that Smagin failed to allege a domestic injury because the purely economic injury to Smagin occurred where he lived – in Russia. The Court rejected such “a bright-line rule . . . that locates a plaintiff’s injury at the plaintiff’s residence.” Id. at 543. Instead, the Court held that the analysis to determine if a plaintiff has alleged a domestic injury under RICO “means looking to the nature of the alleged injury, the racketeering activity that directly caused it, and the injurious aims and effects of that activity.” Id. at 544 (footnote omitted). The Court ultimately determined that Smagin had alleged a domestic injury given “Smagin’s interests in his California judgment against Yegiazaryan, a California resident, were directly injured by

20 racketeering activity either taken in California or directed from California, with the aim and effect of subverting Smagin’s rights to execute on that judgment in California.” Id. at 546. Because interpretations of federal RICO guide this Court’s interpretation of Florida’s RICO statutes, this federal analysis also applies to the Florida statutes. Turning from this law to the instant case, one of the first, major acts to advance the conspiracy occurred in Miami—Ferguson’s meeting with and recruiting of Birk Hillman, a Florida company, to apply to be Trinidad and Tobago’s lead consultant on the airport construction. The conspiracy was advanced by meetings among the key conspirators in Florida occurring regularly throughout the conspiracy. Key evidence was located and destroyed in Florida. Some payments to advance the conspiracy occurred entirely in Florida and funds to advance the conspiracy flowed into and out of Florida. The conspiracy involved United States citizens and United States firms. Finally, to pay for part of the project, Trinidad and Tobago obtained a loan in the form of a letter of credit from a bank in Miami. The letter of credit was an asset of Trinidad and Tobago located in Miami and depleted in part by the conspiracy. These circumstances establish that the injury at issue did not “rest entirely on injury suffered abroad.” RJR Nabisco, 579 U.S. at 354.

21 Florida is a world destination for finance, business, and construction. In interpreting Florida’s presumption against extraterritoriality, the sovereign state of Florida has a clear interest in preventing, punishing, and providing a remedy for those damaged in part in Florida and in part abroad as occurred here, by this type of criminal enterprise operating out of Florida. Here, Trinidad and Tobago sufficiently established a domestic injury under Florida Civil RICO.