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Bejerano v. State5/12/2000
oup 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.
The defense had requested a jury instruction that referenced structure and a decision-making mechanism:
The State must prove beyond a reasonable doubt the three elements of enterprise, the first element ongoing organization, refers to the superstructure or framework of the association. The prosecution must show that the group has an identifiable decision-making structure and a mechanism for controlling and directing the group on an ongoing, rather than an ad hoc basis.
The second requirement to establish an enterprise is that various associates function as a continuous unit. This element requires the prosecution to show beyond a reasonable doubt some degree of temporal continuity.
The final element required to prove beyond a reasonable doubt the existence of an enterprise is that the organization have an existence separate and apart from the pattern of racketeering activity in which it engages. If there is nothing linking the members of the association to one another except the commission of the predicate criminal acts, then there is no enterprise. (emphasis added)
That instruction included language from Brown and had it not also included structure and decision making as a required element, it would have been proper and advisable for the trial court to have given it. However, a trial court has discretion and it should not give an instruction which is proper in some degree and improper or incomplete in others.
We also conclude that in this case, the state offered substantial proof that an enterprise for RICO purposes existed and thus the trial court did not err in failing to grant Bejerano's motion for a judgment of acquittal. The evidence established that the named persons and clinics, or corporations, had a long-term, ongoing relationship with one another over a period of years. They associated, in fact, and on Bejerano's part, he associated with them and was employed by them. There was proof that the group of individuals and clinics played various roles over the time period but within a structured setting. And, there was substantial proof that the common purpose, shared by all, was to obtain ill-gotten money by working together to present insurance companies with fraudulent or bogus claims. No one person in the group could have accomplished this goal by him or herself. It took a de facto organization to accomplish the multiple criminal acts. Thus, under the Turkette definition of enterprise, the state in this case proved an enterprise for RICO purposes existed.
Further, even if the Riccobene-Boyd definition of enterprise prevails, we think that the state sufficiently established that an enterprise existed in this case. It is remarkably similar to the third circuit's opinion in United States v. Console, 13 F.3d 641 (3d Cir. 1993), cert. denied, 511 U.S. 1076, 114 S.Ct. 1660, 128 L.Ed.2d 377 (1994), the same court that wrote Riccobene. In that case, partners in a law firm and a doctor in a medical practice carried out a scheme to defraud insurance companies by submitting inflated medical bills on behalf of accident victims represented by the law firm. The doctor accepted referrals from the law firm and also referred his patients to the firm. The medical office sent medical bills to the law firm, which sent them on to insurance companies for payment. Both the medical office and the firm inflated the bills, added to them, and falsified them. The clients of the firm were also coached about what
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