Bejerano v. State5/12/2000
various persons involved was presented in more detail than many RICO cases.
The Florida RICO statute makes it a crime for a person employed by or associated with any enterprise to conduct or participate directly or indirectly in such enterprise through a pattern of racketeering activity. § 895.03(3), Florida Statutes. Proof of the existence of an "enterprise" is necessary in any RICO conviction because it is a substantive element of the crime. "Enterprise" is defined by the statutes as:
Enterprise means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact, although not a legal entity; and it includes illicit as well as licit enterprises and governmental, as well as other entities. A criminal street gang as defined in s. 874.03 constitutes an enterprise. § 895.02(3), Fla. Stat. (1997).
The definition of enterprise is a tad diffuse, as are other words and phrases in the Florida RICO statute, but they have survived constitutional challenges.
Because the Florida RICO statute is patterned after the federal RICO statute, Florida courts have looked to the federal courts for guidance in interpreting and applying it. See Boyd v. State, 578 So.2d 718 (Fla. 3d DCA), rev. denied, 581 So.2d 1310 (Fla. 1991). However, with regard to the "enterprise" element, the federal courts have yet to resolve their own conflict over whether, and how much proof there must be, that the entity or enterprise has a structure to make decisions, hierarchical or consensual, or a mechanism to control and direct affairs of the group on an ongoing rather than an ad hoc basis. Some say it is required. See United States v. Riccobene, 709 F.2d 214 (3th Cir), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983); United States v. Bledsoe, 674 F.2d 647 (8th Cir.), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982). In United States v. Cagnina, 697 F.2d 915 (11th Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983), the court criticized this view, holding that it was not necessary to prove an enterprise has a distinct formalized structure, and that it can encompass an informal criminal network, which is engaged in racketeering activity. See also United States v. DeRosa, 670 F.2d 889 (9th Cir.), cert. denied, 459 U.S. 993, 103 S.Ct. 353, 74 L.Ed.2d 391 (1982).
In Boyd, the third district adopted the Riccobene language that a showing of an ongoing, structured, criminal association is required to prove the existence of an enterprise. In his concurring opinion, Judge Cope questioned that requirement, concluding that it is unrealistic to expect that criminal associations will have a highly organized, formalized structure, and those associations may well lack formal mechanisms for direction and control. However, he concurred in the result in Boyd because the state was only able to prove that the defendant had been involved in a series of different robberies and car thefts over a relatively short-period of time, and had various accomplices on an ad hoc basis.
More recently, the fourth district in Gross v. State, 728 So.2d 1206 (Fla. 4th DCA), rev. granted, 741 So.2d 1135 (Fla. 1999), opted for the Cagnina interpretation of "enterprise." In that case, the state proved that there was a loosely connected group of friends and acquaintances who developed and carried out a series of home invasions to rob suspected drug dealers. Residents of other counties, dressed as police officers, would perform the robberies. One defendant who lived in the area selected the victims and point
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