         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                           NOT FINAL UNTIL TIME EXPIRES TO
                                           FILE MOTION FOR REHEARING AND
                                           DISPOSITION THEREOF IF FILED


KELLY MATHIS,

             Appellant,

 v.                                                Case No. 5D14-492

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed October 14, 2016

Appeal from the Circuit Court
for Seminole County,
Kenneth R. Lester, Jr., Judge.

Michael R. Ufferman, of Michael Ufferman
Law Firm, P.A., and Peter D. Webster, of
Carlton Fields Jorden Burt, P.A.,
Tallahassee, for Appellant.

Marc J. Randazza, of Randazza Legal
Group, Las Vegas, NV, Amicus Curiae for
the First Amendment Lawyers Association.

Ashley Litwin, Miami, Amicus Curiae for
National Association of Criminal Defense
Lawyers.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Diana K. Bock and
Pamela J. Koller, Assistant Attorneys
General, Daytona Beach, Office of
Statewide Prosecution, Tampa, for
Appellee.
WALLIS, J.

       Kelly Mathis ("Appellant") appeals his convictions and sentences for: racketeering

(RICO);1 fifty-one counts of setting up, promoting, or conducting an illegal lottery;2 and

fifty-one counts of possessing an illegal slot machine or device.3 Appellant argues, and

we agree, that the trial court abused its discretion by excluding evidence supporting his

theory of the defense, effectively preventing him from arguing that he lacked the requisite

mens rea for his offenses. We reverse Appellant's convictions and sentences and remand

for a new trial.4

       This case stems from Florida's crackdown on what became colloquially known as

"internet cafes," which sprung up throughout the state between 2007 and 2014. In 2007,

Michael Ryles, Chase Burns, and Brad Skidmore hired Appellant, an attorney in

Jacksonville, to research whether Florida law permitted the operation of internet cafes.5

Appellant conducted legal research on the issue for several weeks, discussed the

proposed business model with various state and local officials, and ultimately concluded



       1   § 895.03(3), Fla. Stat. (2013).
       2   § 849.091(1), Fla. Stat. (2013).
       3   § 849.15, Fla. Stat. (2013).
       4 We affirm the trial court's denial of Appellant's cause challenge to a prospective
juror without discussion.
       5  The proposed business model operated as follows. Customers purchased
"internet time" to use on computers located in the internet cafes. When a customer
purchased internet time, they received free entries into promotional sweepstakes.
Customers could use the computers to reveal their sweepstakes entries to see if they
won a promotional prize. The software used to reveal the sweepstakes entries simulated
popular casino-style games. Each sweepstakes entry contained a predetermined prize
that neither the customer nor the internet cafe employees could alter.


                                              2
promoting, or conducting an illegal lottery; fifty-one counts of possessing an illegal slot

machine or device; and fifty-three counts of participating in an illegal gambling business

(money laundering).

       Before trial, Appellant requested that the trial court take judicial notice of evidence

supporting his theory of the defense, including: (1) ordinances regulating internet cafes in

Jacksonville, Clay County, Leon County, Seminole County, St. Johns County, Volusia

County, and Wakulla County; (2) a circuit court order upholding the Jacksonville

ordinance; and (3) various Florida House of Representatives staff analyses and proposed

bills regulating internet cafes. In response, the State filed two motions in limine to prevent

Appellant from both referencing any ordinances and raising an "advice of counsel"

defense at trial.

       The trial court considered the notice requests and motions in limine at a hearing in

August 2013. The State argued that Appellant improperly wished to raise an "advice of

counsel" defense and requested that the trial court compel Appellant to provide the names

of all attorneys with whom he discussed the legality of the internet cafes. Defense counsel

disagreed with the State's framing of the issue, explaining that Appellant did not rely on

advice of retained counsel, but rather that his research and meetings with government

officials led him to advise Allied Veterans that internet cafes were legal. The trial court

found the State's argument compelling, reasoning that the State was not charging

Appellant as an attorney, only as an ordinary member of the organization. The trial court

expressed its understanding of the issue in the following statement:

              I think you're elevating Mr. Mathis much higher than the state
              intends to do it. I think they're putting him down on the same
              common level as everybody else for the most part.




                                              4
promoting, or conducting an illegal lottery; fifty-one counts of possessing an illegal slot

machine or device; and fifty-three counts of participating in an illegal gambling business

(money laundering).

       Before trial, Appellant requested that the trial court take judicial notice of evidence

supporting his theory of the defense, including: (1) ordinances regulating internet cafes in

Jacksonville, Clay County, Leon County, Seminole County, St. Johns County, Volusia

County, and Wakulla County; (2) a circuit court order upholding the Jacksonville

ordinance; and (3) various Florida House of Representatives staff analyses and proposed

bills regulating internet cafes. In response, the State filed two motions in limine to prevent

Appellant from both referencing any ordinances and raising an "advice of counsel"

defense at trial.

       The trial court considered the notice requests and motions in limine at a hearing in

August 2013. The State argued that Appellant improperly wished to raise an "advice of

counsel" defense and requested that the trial court compel Appellant to provide the names

of all attorneys with whom he discussed the legality of the internet cafes. Defense counsel

disagreed with the State's framing of the issue, explaining that Appellant did not rely on

advice of retained counsel, but rather that his research and meetings with government

officials led him to advise Allied Veterans that internet cafes were legal. The trial court

found the State's argument compelling, reasoning that the State was not charging

Appellant as an attorney, only as an ordinary member of the organization. The trial court

expressed its understanding of the issue in the following statement:

              I think you're elevating Mr. Mathis much higher than the state
              intends to do it. I think they're putting him down on the same
              common level as everybody else for the most part.




                                              4
              ....

              It's a slot machine, lottery, RICO case with everybody
              involved. And if the State decides that they are going to single
              him out as the attorney, which necessitates you having to
              bring in these other attorneys for some reason, I'll be very
              careful to hear what they have to say as far as that's
              concerned, but otherwise to me . . . it's a simple trial with a
              bunch of defendants here going on.

                      And the fact that you are concerned or for some reason
              you think they're focusing on him as the attorney to where you
              need to bring other attorneys to give their interpretation of the
              law, I just don't see that, really.

       After the hearing, the trial court entered an order granting the State's motion in

limine regarding the "advice of counsel" defense, prohibiting Appellant from introducing

any "communication between [him] and any other attorney" regarding the legality of the

Allied Veterans' business model. The trial court granted the State's remaining motion in

limine, prohibiting Appellant from "present[ing] evidence and testimony relating to county

and municipal ordinances, as such evidence is irrelevant to the issue of whether he acted

in violation of State statutes."

       Appellant's trial commenced on September 16, 2013, and concluded on October

11, 2013. The State contradicted its pre-trial assertion that it would not focus on

Appellant's capacity as an attorney, as demonstrated by the prosecutor's remarks during

opening statement:

                    [W]ith Kelly Mathis -- it's about gambling. That's what
              the charges are. Let's be clear. But it's about Kelly Mathis
              gaming the system. He's a lawyer and he gamed the legal
              system.

              ....

                    You see, one of the other reasons we know that Kelly
              Mathis is gaming the system is that you're going to learn that



                                             5
              . . . a couple of attorney generals from the State of Florida had
              issued opinions on similar types of sweepstakes . . . and said
              they're illegal.

                     You're going to learn that one attorney general . . .
              wrote a letter to Mr. Mathis about it . . . saying it was illegal.
              But the games continued.

              ....

              [Y]ou're going to hear people say that if he had said, hey, this
              is a real risk or this is illegal, like the attorney general opinion
              said, they wouldn't have done it. He gamed the system.

       Throughout the trial, the State elicited witness testimony focusing on the

soundness of Appellant's legal conclusions. Yet, the trial court prohibited Appellant from

presenting any testimony to rebut the prosecutor's theme, including the local ordinances

that specifically permitted the operation of internet cafes.

       The State persisted in its assertion that Appellant knowingly provided false legal

advice during closing argument and rebuttal:

                    I'll submit to you that the Defendant was quite well
              aware of what he was doing when he was going out talking to
              everybody.

                     [T]he Defendant, in explaining the Allied         Veterans
              locations, was very aware of what the law is. He         was very
              aware of what the law is. Because the manner in          which he
              described what was happening at the Allied               Veterans
              locations was a misrepresentation.

              ....


              But why are we here on Kelly Mathis? Because of the way he
              gamed the law, the way he chose to practice law, to mislead,
              to deceive.

              ....




                                               6
                      They tell you he had a love of the law. You know a love
              of the law would involve respect. It wouldn't be to come in here
              and try to manipulate it to make it work so that you can bill
              millions. That's not a love of the law.

              ....

              This case is about gambling. But in reality, it's about complete
              disrespect, a disregard, and misrepresentation and
              manipulation of the law.

              ....

              Four times I heard during the course of this, he was just a
              lawyer. He was only a lawyer . . . If anybody out of the fifty-
              seven defendants that were involved in this, if anybody knew
              better about what the law said, it was him.

              ....

              You know, it's not only -- it's aggravated because he was a
              lawyer and he knew better.

       The jury returned verdicts of guilty as to racketeering (Count 1), not guilty as to

conspiracy to commit racketeering (Count 2), guilty as to conducting an illegal lottery

(Counts 3-53), and guilty as to possessing an illegal slot machine (Counts 54-104).6 The

trial court sentenced Appellant to six years' incarceration on Count 1, time served on

Counts 3-53, and five years' incarceration on Counts 54-104, to run concurrently.

       "A trial court has wide discretion in determining the admissibility of evidence, and,

absent an abuse of discretion, the trial court's ruling on evidentiary matters will not be

overturned." Helton v. Bank of Am., N.A., 187 So. 3d 245, 247 (Fla. 5th DCA 2016)

(quoting LaMarr v. Lang, 796 So. 2d 1208, 1209 (Fla. 5th DCA 2001)). A trial court's ruling

on the admissibility of evidence "constitutes an abuse of discretion if it is based 'on an



       6The trial court granted Appellant's motion for judgment of acquittal as to the fifty-
three counts for money laundering.


                                             7
erroneous view of the law or on a clearly erroneous assessment of the evidence.'"

Johnson v. State, 969 So. 2d 938, 949 (Fla. 2007) (quoting Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384 (1990)). "Florida law is clear that 'where evidence tends in any way,

even indirectly, to establish a reasonable doubt of defendant's guilt, it is error to deny its

admission.'" Mateo v. State, 932 So. 2d 376, 379 (Fla. 2d DCA 2006) (quoting Rivera v.

State, 561 So. 2d 536, 539 (Fla. 1990)).

       We note that the law generally disfavors crimes containing no knowledge or mens

rea element. See, e.g., Staples v. United States, 511 U.S. 600, 605-06 (1994). Indeed, at

common law, all crimes included an act or omission element in addition to a knowledge

or mens rea element. State v. Giorgetti, 868 So. 2d 512, 515 (Fla. 2004). Including a

mens rea requirement remains "the rule of, rather than the exception to, the Anglo-

American criminal jurisprudence." Staples, 511 U.S. at 605 (quoting United States v.

Gympsum Co., 438 U.S. 422, 436 (1978)). "In other words, the Court has virtually created

a presumption in favor of a guilty knowledge element absent an express provision to the

contrary." Giorgetti, 868 So. 2d at 515. "The Legislature is vested with the authority to

define the elements of a crime, and therefore 'determining whether scienter is an essential

element of a statutory crime is a question of legislative intent.'" Reynolds v. State, 842

So. 2d 46, 49 (Fla. 2002) (quoting Chicone v. State, 684 So. 2d 736, 741 (Fla. 1996)). In

determining the Legislature's intent, we look first to the statute's plain language. Giorgetti,

868 So. 2d at 515.

       The State charged Appellant under the following subsections of Florida's RICO

statute:

              (3) It is unlawful for any person employed by, or associated
              with, any enterprise to conduct or participate, directly or



                                              8
               indirectly, in such enterprise through a pattern of racketeering
               activity or the collection of an unlawful debt.

               (4) It is unlawful for any person to conspire or endeavor to
               violate any of the provisions of subsection (1), subsection (2),
               or subsection (3).

§ 895.03, Fla. Stat. This language does not express the Legislature's intent to dispense

with a mens rea requirement. However, silence on this point by itself does not necessarily

suggest that the Legislature intended to dispense with a conventional mens rea element,

which would require that the defendant know the facts that made his conduct illegal.

Staples, 511 U.S. at 605. Accordingly, we interpret the statute in a manner that comports

with due process by "ascrib[ing] the Legislature with having intended to include such a

requirement." See Giorgetti, 868 So. 2d at 518. We find support in our supreme court's

decision in Bowden v. State, where it rejected the argument that the statute "is facially

unconstitutional because it imposes strict liability without requiring criminal intent or

knowledge, and because its sanctions are predicated upon . . . presumptively protected

activities." 402 So. 2d 1173, 1174 (Fla. 1981). The court further determined that the

"assertion that 'under this law the prohibited association with the enterprise can be entirely

innocent or unknowing,' is simply not correct. Nor is it true that 'participation, directly or

indirectly, in the enterprise can occur without any intent . . . that the condemned behavior

relate to any enterprise.'" Id. at 1175 (alteration in original).

       Based on the foregoing, we find no evidence that the Legislature intended to

remove knowledge or mens rea as an element of the offense outlined in section

895.03(3). Thus, the trial court should have permitted Appellant to offer evidence negating

his intent to commit racketeering. The State's persistent trial theme involved repeatedly

arguing that Appellant knowingly assisted Allied Veterans in operating an illegal



                                                9
sweepstakes. Yet, the testimony established that Appellant diligently researched the legal

issues before concluding that Florida law did not prohibit internet cafes. The trial court's

decision to exclude the contested evidence effectively thwarted Appellant's argument that

he lacked the mens rea for his offenses.

       The State contends that allowing Appellant to introduce the contested evidence

would result in "a parade of lawyers, both private and government, tak[ing] the stand to

testify to their respective interpretations of what the law should be." We disagree with the

State's position because Appellant's purpose in introducing this evidence was to

challenge the knowledge element of the offense, not to advance an argument that internet

cafes were legal. Appellant properly concedes that this distinction likely necessitates that

the trial court provide a limiting instruction, informing the jury to consider the evidence

only as it relates to Appellant's state of mind. By preventing Appellant from introducing

this evidence, the trial court effectively transformed the racketeering charge into a strict

liability offense. Appellant's argument that he lacked the mens rea necessary to commit

racketeering amounts to a valid theory of defense, and the trial court abused its discretion

by excluding the evidence supporting that defense. See Mateo, 932 So. 2d at 379.

       Appellant next argues that the trial court abused its discretion by denying his

request for a special jury instruction tracking the language of Florida's game promotion

statute, section 849.094, Florida Statutes (2013). We agree with the trial court that the

circumstances did not warrant a special instruction. However, consistent with our

determination that Appellant can present evidence providing the full context for his legal

representation, we find that the trial court should permit Appellant to introduce a

description of or citation to section 849.094. The State maintains that Appellant knowingly




                                            10
misrepresented Allied Veterans' business model to various State officials, and therefore

he should not be able to rely on their conclusions that Allied Veterans complied with

section 849.094. We find that this argument goes to the weight of the evidence, not its

admissibility; certainly the State may cross-examine Appellant's witnesses as to whether

their opinions that Allied Veterans operated a legal game promotion would have changed

had Appellant provided the details the State contends he misrepresented or omitted.

       For these reasons, we reverse and remand for a new trial, affording Appellant the

opportunity to present evidence demonstrating the full context of his legal advice to rebut

the State's allegations that he knowingly assisted Allied Veterans in violating Florida law.

We affirm the remaining issues on appeal without further discussion.



       AFFIRMED in Part; REVERSED in Part; and REMANDED for a new trial.



ORFINGER and EDWARDS, JJ., concur.




                                            11
