Florida Rico conspiracy conviction overturned.
The case of State v. Sanchez, 37 Fla. L. Weekly D327a (Fla. 2d DCA February 8, 2012) involved an appeal from a conviction of conspiracy to commit racketeering under Fla. Stat. §895.03(4).
The State charged Sanchez with racketeering in violation of Fla. State. §895.03(3) and conspiracy to commit racketeering, Fla. Stat. §895.03(4).
The Information as amended charged Sanchez with committing racketeering and conspiracy to commit racketeering by engaging in a pattern of racketeering activity evidenced by two predicate acts. The Information charged that the predicate acts included: (1) possession of a concealed weapon, (2) aiding the escape of another person named in the Information as a defendant, (3) robbery, (4) murder, and (5) aggravated assault. These predicate acts are found in Fla. Stat. §895.02(1)(a)(38)(21)(22)(28).
The jury was provided a verdict form which required it to identify those predicate acts the defendant was to have committed. Out of the five predicate acts listed above, the jury found that the defendant had committed the predicate act of possession of a concealed weapon and aiding the escape of one of the co-defendants.
The court then examined the evidence as to the two predicate acts and found that there was insufficient evidence to make a finding that the defendant aided in the escape the named co-defendant.
The appellate court then analyzed the charge of aiding another in an escape. Fla. Stat. §843.12 (2006) contains the crime of escape which is designated as a predicate act under the racketeering statute. The statute provides that a person who knowingly aids or assists a person in escaping, attempting to escape or who has escaped from an officer or person who has or is entitled to the lawful custody of such person commits the crime. The court noted the Florida Supreme Court decision in King v. State, 28 So. 206 (Fla. 1900) as well as Dupree v. State, 416 So. 2d 1228, 1230 (Fla. 1st DCA 1982) in analyzing this issue.
The First District Court of Appeal noted that the accused must know that the police had lawful custody of the escapee. It also noted that the statute would also apply to a police officer serving an arrest warrant because the officer is entitled to the lawful custody of the arrestee.
The issue that the court found to be lacking involved the element of the crime which requires that the defendant know his actions are helping the escape of an arrested person or a person whom the officer is seeking to arrest. It stated, “the state had to demonstrate both that Sanchez knew the police were attempting to serve an arrest warrant and that he knew Garcia was attempting an escape.” The evidence on this regard was then analyzed. A police car approached the neighborhood of the person to be arrested. Outside the home of the person to be arrested, was Sanchez, together with the person whom the police were seeking to arrest. Police saw both men enter the home. The police then went to the residence, one officer went to the front door and a second officer went around to the backside of the house.
The police officer at the front door was met by Mr. Sanchez and asked to speak to Mr. Garcia (the person to be arrested). The officer stated to Sanchez that he needed to speak with Garcia and said nothing about an arrest warrant. Sanchez lied to the officer by saying that he had not seen Garcia and Garcia was not there.
Garcia had gone out the back and was still within the curtilage of the property and was told by the other officer to stop, which he did.
The state offered nothing to suggest that Garcia knew that warrant had been issued for his arrest or that Garcia was trying to escape from his residence. Likewise there was no evidence that Sanchez had any knowledge that Garcia was trying to avoid an arrest. In this regard the court noted that Garcia responded to the deputy’s call by stepping forward rather than running away. The court noted that Garcia’s conduct did not establish that he was attempting to escape.
Sanchez’s lying to law enforcement was then analyzed. The court noted that by merely giving police false information generally will not support a criminal conviction, not even a misdemeanor conviction for resisting an officer without violence which is commonly referred to as obstruction under Fla. Stat. §843.02.
Specifically, the court found that had the police officer disclosed to Sanchez that the officer was seeking to serve an arrest warrant on Garcia, the evidence conceivably might have supported finding that Sanchez violated the obstruction statute.
In this regard the court cited to the case of State v. Legnosky, 27 So. 3d 794 (Fla. 2d DCA 2010) which noted three scenarios where words alone are sufficient to obstruct a police officer. These are: where the officer is serving process, legally detaining a person, or asking for assistance. The officer did none of those and furthermore obstruction was not charged as a predicate act in the Information.
The court pointed out that two predicate offenses are necessary to commit criminal racketeering and here the state only proved one predicate act. Therefore, the state failed to prove one of the elements because proof only sustained one predicate offense.
The court then considered the conspiracy to commit racketeering charge. It noted that one can be found guilty of conspiracy to commit racketeering if the state proves either of two methods charged in the statute. These are: (1) that the defendant agreed to the overall objective of the conspiracy or (2) that the defendant personally committed two predicate acts thereby participating in a single objective conspiracy.
In the conspiracy charge of the Information, the state alleged that Sanchez had participated in the racketeering conspiracy by committing the same five predicate acts listed in the substantive RICO charge. The jury’s verdict form indicated that he was convicted of the conspiracy to commit racketeering based upon his personally committing two predicate acts. That is the possession of the concealed and aiding Garcia’s escape. For the same reasons it discussed in relation to the racketeering charge, the court noted that the proof was insufficient on the predicate crime of aiding Garcia’s escape.
The court reversed the convictions on both charges and remanded the case with directions to discharge the defendant.
It is also worth noting the court comments on the fact that the jury instructions included the lesser included offense of resisting an officer without violence as being included in the charge. The court cited to the case of United States v. Fowler, 535 F. 2d 408, 421 (6th Cir. 2008) for the proposition that a crime charge as a predicate act for purposes of a racketeering charge is not a charged crime and that lesser included offense instruction is not permissible when a defendant has not been charged with a separate crime. The jury instruction on Predicate Acts therefore may not include the lesser included offense