West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          In the case of Kevin Jackson versus the State of Florida, Mr. Jackson was convicted of racketeering (more commonly known as RICO), and conspiracy to commit racketeering.  The relevant facts of Jackson's case are that:

          In 1997 and 1998 the Miami-Dade Police Department began investigating drug sales which were occurring at Riverside Park in the Little Havana area of Miami. As a result of the investigation, 28 people (including Jackson) were charged with RICO and conspiracy to commit RICO as well as numerous other crimes.  The prosecutor "acknowledged at trial that Jackson was not a gang member.  He presented evidence that two gangs, the 'Latin Kings' and the 'YLO,' operated in the area. This evidence came from a detective with specialized experience with gangs. The detective testified regarding numerous undercover drug purchases made in the park, using undercover officers and confidential informants. These included some of the transactions involving Jackson.

          The detective further testified that gang graffiti of both the Latin Kings and the YLO existed in the area, and the graffiti had not been crossed out. He offered his opinion that this meant the two gangs were engaged in a cooperative enterprise to control the drug trade at the park. He explained that in his experience, in the absence of some agreement, rival gangs would cross out each others' graffiti. There was no other testimony that the two gangs had formed a de facto association or joint venture to control the drug trade in the park."

          Jackson appealed his convictions to Florida's Third District Court of Appeal which reversed Jackson's convictions for RICO and conspiracy to commit RICO for the following reasons:

          1.  According to Florida's RICO law, “[i]t is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity.”  An enterprise includes a criminal street gang as well as a "group of individuals associated in fact although not a legal entity."  In Jackson's case, the detective's testimony regarding gang graffiti was not enough by itself to establish the existence of an association or joint venture between the two gangs to control the drug trade in the park.

          2.  No evidence was presented at Jackson's trial that tended to prove he was a member of either the Latin Kings or YLO.

          3.  No evidence was presented that proved he engaged in transactions with gang members or on behalf of gang members.

          4.  No evidence was presented that tended to prove he shared any of the money he earned from selling drugs with either gang.

          5.  The evidence showed only that Jackson sold cocaine in the park and that he was familiar with some other persons who were gang members.  Such evidence, however, was not sufficient to convict him of either RICO or conspiracy to commit RICO.

           6.  The concept of a RICO enterprise should not be applied to garden-variety criminal undertakings, and the evidence in Jackson's case proved nothing more than just that.

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          The Racketeer Influenced and Corrupt Organizations Act, more commonly referred to as RICO, is a federal law that provides for criminal penalties for acts performed as part of an ongoing criminal organization.  

          Florida has its own RICO law which requires that one have engaged "in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct."

          In the case of the State of Florida versus Joseph Russo, Mr. Russo and others were charged with breaking Florida's RICO law by, among other things, committing the crime of trafficking in marijuana and conspiracy to traffic in marijuana.  In his defense, Russo argued that trafficking in cannabis and conspiring to do so actually constitutes only one incident of racketeering conduct, not two incidents which is what Florida's version of the RICO law requires.

          In response, the prosecutor argued that acts which are part of the same transaction can still qualify as distinct incidents of racketeering conduct if each incident requires proof of an element that the other does not.  Thus, in Russo's case, trafficking in cannabis and conspiring to traffic in cannabis are two distinct incidents of racketeering conduct because each requires proof of an element that the other does not.

           Fortunately for Mr. Russo, Florida's Fourth District Court of Appeal sided with him saying that Florida's RICO law requires two distinct incidents of racketeering activity rather than two acts which are part of the same transaction.  The Court of Appeal believed that this interpretation made it more likely that career criminals would be targeted by the RICO law rather than someone who was not a career criminal but who nevertheless happened to have committed two criminal acts in connection with the same transaction.

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          In the case of Joe Bryant versus the State of Florida, a jury convicted Mr. Bryant of the crimes of battery, handling or fondling a child under sixteen in a lewd, lascivious, or indecent manner, and showing obscene material to a minor.  The facts of Bryant's case are as follows:

          "The fourteen-year-old victim testified that Bryant exposed her to obscene pictures on a computer, touched her inappropriately, and committed sexual battery by digital penetration. This allegedly occurred on the first night of a two-night sleep over with Bryant's daughter at Bryant's home. The [prosecutor] also presented as evidence obscene photographs, recovered from the hard drive of a computer at Bryant's home, that had been generated the night of the sleep over. Although admittedly obscene, the images did not match the description of the pictures the victim described seeing. Also present at Bryant's home on the night in question were Bryant's eleven-year-old son, fourteen-year-old daughter and twenty-two-year-old daughter. They all testified at trial and denied observing any of the conduct leading to the charges.

          After [Bryant finished presenting his evidence], the [prosecutor] offered into evidence twenty-four additional photographs that had been recovered from the computer hard drive. The [prosecutor's] computer expert revealed that these additional images were placed on the hard drive over a three-month period of time ending some two weeks to a month before the night of Bryant's alleged criminal activity in this case. [Bryant] objected to the admission of these additional images."

          Bryant appealed his convictions, and the appellate court deciding his case ruled that he should receive a new trial because the prosecutor should not have been allowed to show the jury the twenty-four additional photographs that had been recovered from the computer hard drive.  The appellate court based its decision on the following three factors:

          1.  The prosecutor presented no direct evidence that the twenty-four photographs were placed onto the hard drive by Bryant even though, of all the people having access to that computer, Bryant was the one most likely to have viewed them.

          2.  Compared to the pictures shown to the jury during the first portion of the trial, the twenty-four additional photos revealed a distinct difference in subject matter.  More specifically, except for one pornographic cartoon, the first set of pictures showed undressed adolescent and pre-adolescent girls; however, the twenty-four additional photographs contained several images of sexual activity.

          3.  The prejudicial impact of the twenty-four additional photos far outweighed any value they may have had in proving that Bryant was guilty of the crimes he was charged with committing.

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