       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                          VICTOR CASTILLO,
                              Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D12-1584

                              [July 1, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard L. Oftedal and Amy Smith, Judges; L.T. Case No.
2007CF017817CXX.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack,
Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   Victor Castillo appeals his convictions for racketeering and conspiracy
to commit racketeering. First, he contends that the state failed to prove
interrelatedness between the predicate incidents and the criminal street
gang, of which he was a member, for purposes of proving a pattern of
racketeering activity and as to the conspiracy to commit racketeering.
Second, as one of the predicate incidents occurred when he was a juvenile,
he contends that it could not serve as a predicate incident because it was
not “chargeable by indictment or information.” Finally, he claims that the
court erred in failing to grant a severance of his trial from his co-
defendants, because, of the more than sixty predicate incidents only three
involved him, thus making the evidence of the other incidents unduly
prejudicial. We affirm on all issues.

   Appellant was charged, along with thirteen other defendants, with
racketeering and conspiracy to engage in racketeering, in violation of the
Florida RICO statutes. The information alleged that appellant was part of
a criminal street gang called SUR 13. Although the information listed over
eighty predicate acts to form a pattern of racketeering activity, only five
involved appellant. Several of his co-defendants pled guilty and agreed to
testify against other members of the gang. Two of the remaining
defendants were tried with him, although he moved to sever his trial from
theirs because of the volume of predicate acts involving the other co-
defendants. The trial court denied the motion.

    The trial lasted for a month with over 100 witnesses testifying for the
state. The state showed through the testimony of its members that SUR
13 was a criminal street gang comprised of Mexicans, and that the gang
had existed at least from the time that appellant joined it sometime
between 1998 and 2000. Appellant, Castillo, along with Ernest Campos
and Jose Sanchez, were the leaders of the gang, although Campos was the
primary leader and Sanchez merely approved his orders. The gang existed
to commit violence and crimes, and engage in drug activity. The gang had
a membership ritual of a “beat-down” of new members by other members.
Once a person became a member, he was expected to commit crimes to
grow the gang’s reputation for violence and thus gain respect. Gang
members were expected to protect other members of the gang and to stand
up to the police. SUR 13 members committed acts of violence against
members of several rival gangs. Members would be disciplined with
violence for violating orders. When a member wanted to leave the gang,
he was required to commit acts of violence first. Some members testified
that they had convictions related to drugs, acts of violence, and resisting
arrest. They said that these acts were gang-related, as they were trying to
develop the reputation of the gang.

   Multiple members of the gang testified to appellant’s leadership role in
the gang. He wore the gang’s tattoos and would direct the commission of
crimes. He also committed crimes, including drug crimes. Several
witnesses testified to appellant’s possession of guns and his use of them
in shootings, although those were not the predicate acts charged against
appellant.

   Much of the evidence presented was directed at predicate acts of the
other defendants. These consisted of murders, attempted murders and
other shootings, drug trade, arson, and other crimes which appellant
claimed had nothing to do with him. Nevertheless, there was testimony
that some of those crimes were done at appellant’s direction or with
appellant’s knowledge. Further, there was substantial evidence that these
predicate acts, or at least many of them, were committed in order to
increase the gang’s reputation, particularly with other gangs.



                                    2
   The specific predicate acts charged against appellant, which the jury
found that he committed, were: (1) resisting arrest without violence on July
9, 2000; (2) possession of cocaine; and (3) battery. He was also charged
with petit theft and conspiracy to commit first degree murder, but the jury
did not find that he committed these predicate acts.

    The first predicate act, of resisting arrest, occurred after an officer
spotted appellant in a bar from which appellant had previously been
issued a trespass warning. He began making a disturbance and was asked
to leave. He took a fighting stance toward the officer at the bar and started
to come at the officer, who then pepper sprayed him. He was arrested for
resisting arrest without violence. After the arrest, the officer identified him
as being a member of a gang and observed a gang tattoo on his neck.

    The other two predicate acts occurred during an incident at a night
club. The appellant was at a bar with another one of the leaders of SUR
13. The victim was in the bathroom when appellant attacked him with a
bottle, as did two other individuals with appellant. The victim was taken
to the hospital, and when an officer arrested appellant, cocaine was found
on him.

   The jury found appellant guilty of racketeering, concluding that the
state had proved three predicate acts: resisting arrest, possession of
cocaine, and battery. The judge convicted him and sentenced him to thirty
years imprisonment for racketeering and fifteen years for conspiracy, to be
served consecutively. He appeals.

   The purpose of the Florida RICO statute is to punish those who engage
in a pattern of criminal activity more severely than those who commit only
unrelated predicate offenses. Carroll v. State, 459 So. 2d 368, 370 (Fla.
5th DCA 1984). Pursuant to the Florida RICO statute, section 895.03(3),
Florida Statutes (2007):

         It 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. . . .

A criminal street gang falls with the statutory definition of an “enterprise.”
See § 895.02(3), Fla. Stat. (2007). Section 874.03, Florida Statutes (2007),
defines a “[c]riminal gang” as:

      a formal or informal ongoing organization, association, or
      group that has as one of its primary activities the commission

                                      3
      of criminal or delinquent acts, and that consists of three or
      more persons who have a common name or common
      identifying signs, colors, or symbols, including, but not limited
      to, terrorist organizations and hate groups.

“Racketeering activity” is defined in 895.02(1), Florida Statutes (2007), as:

      to commit, to attempt to commit, to conspire to commit, or to
      solicit, coerce, or intimidate another person to commit:
      (a) Any crime that is chargeable by petition, indictment, or
      information under [certain] provisions of the Florida
      Statutes[.]

Those provisions include obstruction of justice pursuant to Chapter 843,
battery under Chapter 784, and drug offenses under Chapter 893.

   A “[p]attern of racketeering activity” is defined in 895.02(4), Florida
Statutes (2007), as:

      engaging 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 incident occurred within 5 years after a prior incident of
      racketeering conduct.

Because the Florida RICO statute is modeled on the Federal RICO statute,
Gross v. State, 765 So. 2d 39, 42 (Fla. 2000), Florida courts have looked
to the federal courts for interpretation of Florida’s statute.

    The Florida Supreme Court has adopted an expansive view of what
constitutes an “enterprise” for purposes of RICO, siding with federal courts
which found the purpose of RICO “to be much broader and not limited
solely to the eradication of organized crime.” Gross, 765 So. 2d at 45. “In
order to prove an enterprise, the State need only establish two elements:
(1) an ongoing organization, formal or informal, with a common purpose
of engaging in a course of conduct, which (2) functions as a continuing
unit.” Id. Moreover, as noted above, the Legislature included a “criminal
gang” within the definition of enterprise. Such an enterprise, by statutory
definition, is simply a group which has as its primary purpose the
commission of criminal or delinquent acts—like SUR 13. The evidence
presented showed that SUR 13 was indeed a criminal gang, with

                                      4
identifying symbols and rituals, whose purpose was to increase its
reputation by committing crimes and violent acts, protecting its members,
and standing up to the police.

              Interrelatedness Between Predicate Incidents
                         and Criminal Street Gang

   Appellant does not contest that he was part of a criminal street gang.
He contends that the state did not prove that any of the predicate acts
which the jury found he committed constituted a pattern of racketeering
activity, as they were isolated incidents and random crimes which were
not gang-related. He relies on our supreme court’s discussion of “pattern”
in Bowden v. State, 402 So. 2d 1173, 1174 (Fla. 1981), in connection with
the distribution of obscene literature and pornography:

      This definition of “pattern of racketeering activity” suggests
      that the similarity and interrelatedness of racketeering
      activities should be stressed in determining whether a
      “pattern of racketeering activity” exists. As used in this
      statute, the word “pattern” clearly requires more than
      accidental or unrelated instances of proscribed behavior. We
      construe the “pattern” element to require, in addition to
      similarity and interrelatedness of racketeering activities, proof
      that a continuity of particular criminal activity exists . . . .

         By requiring a continuity of criminal activity as well as a
      similarity and interrelatedness between these activities, the
      target of RICO Act prosecutions will be, appropriately, the
      professional or career criminal and not non-racketeers who
      have committed relatively minor crimes.

Bowden, however, involved the more traditional view of the term
“enterprise,” consisting of the “professional or career criminal.” While
Gross took an expansive view of what constituted an enterprise, it followed
Bowden in stating: “We adhere to the view that while the State’s ability to
prove the enterprise element should not be hindered by having to prove an
ascertainable structure, the State should equally not be able to routinely
invoke the RICO statute for prosecuting any ordinary set of crimes.” Gross,
765 So. 2d at 46 n.5. Gross has been invoked in a criminal gang case to
note “the concept of enterprise is not to be applied to ‘garden variety
criminal undertakings.’” Jackson v. State, 858 So. 2d 1211, 1213 (Fla. 3d
DCA 2003).



                                     5
   In U.S. v. Eufrasio, 935 F.2d 553 (3d Cir. 1991), the court explained
that each defendant in a criminal enterprise may participate in the
enterprise’s affairs through different, even unrelated crimes, so long as it
can be reasonably inferred that each crime was intended to further the
enterprise’s affairs. Id. at 565-66. In Eufrasio, three defendants were
charged with RICO violations for participating in the Scarfo mafia family.
Scarfo, the boss, appointed lesser officers as “captains” over a crew of
“soldiers.” Id. at 559. One captain supervised soldiers including Eufrasio
and Iacona. Id. They were involved in illegal video poker machine
gambling, and extorted competitors of the business. Id. at 559-61.
Predicate acts for the RICO charge, however, included a murder, which
Eufrasio contended was not part of a single pattern of racketeering activity
“because the . . . murder conspiracy was not alleged to involve the same
or similar purposes, results, participants, victims or methods of activity
associated with the alleged gambling and extortion predicates.” Id. at 563.
The appellate court rejected this argument holding:

      [W]hen a proven organized crime entity like the Scarfo Family
      is the relevant enterprise in a RICO case, the relationship
      prong of RICO’s pattern requirement is satisfied by
      functionally unrelated predicate acts and offenses, if the
      predicates are undertaken in association with, or in
      furtherance of criminal purposes of the same organized crime
      enterprise.

Id. at 565. The court quoted United States v. Angiulo, 897 F.2d 1169, 1980
(1st Cir. 1990):

      [P]attern may be proven through the nature of the RICO
      enterprise. For example, two racketeering acts that are not
      directly related to each other may nevertheless be related
      indirectly because each is related to the RICO enterprise.

Eufrasio, 935 F.2d at 565. Thus, even separately performed predicate acts
which are not directly related will form a pattern under RICO, as long as
they all have been undertaken in furtherance of one or another varied
purposes of a common organized crime enterprise.

   In this case, SUR 13 constituted a criminal gang with a wide-ranging
purpose of simply committing criminal acts to enhance their reputation in
the community. Appellant was one of the leaders of the gang. Several
gang members testified as to a variety of crimes they committed, either on
the order of the leaders or to increase the reputation of the gang. These
included several defendants testifying that they had been arrested for

                                     6
resisting officers, and those crimes were in furtherance of the gang. The
gang members were told not to back down from enemies and not to
cooperate with the police.

   One of the predicate acts that the jury found that the appellant
committed was resisting an officer without violence. This occurred in 2000
at a bar from which appellant had previously been ordered to leave.
Appellant disobeyed the officer’s order to leave by taking an aggressive
stance toward the officer. The officer did not testify that there were any
other gang members around, nor did he say that appellant voiced his
resistance by reference to his gang. The officer noticed that appellant
belonged to a gang after the arrest when he observed appellant’s tattoo.

   Two views can be taken of this act. It could have been an isolated
incident and was not in furtherance of any gang activity, because there
was no connection to the gang, other than appellant’s tattoo. On the other
hand, gang members were supposed to stand up to the police, and others
testified that they too had been charged with resisting arrest and
considered it gang-related activity. Because of the broad definition of
“criminal gang” in the statute, the gang’s purpose to commit criminal acts,
and in light of the testimony of the other gang members regarding resisting
arrest, we conclude that the resisting arrest charge can be considered a
predicate act for a RICO conviction.

   The jury also found that appellant had committed battery as another
predicate act. The battery occurred in the bathroom of a night club while
other members of the gang were present. As the other members testified
that committing criminal acts of violence was central to the purpose of the
gang, we find that the incident constituted a predicate act.

   Finally, the jury found that appellant’s possession of cocaine found on
him after arrest for the battery constituted a third predicate act. We are
less certain that mere possession of an illegal substance constituted an
act in furtherance of the gang. The amount possessed was a small
quantity consistent with individual consumption. Nevertheless, the state
presented testimony from other gang members that they possessed and
used cocaine to participate in SUR 13. Based upon this testimony, there
was competent substantial evidence to find that this too was a predicate
act forming a pattern of racketeering activity. Because the jury found three
predicate acts of racketeering activity, the state proved the RICO charge
against appellant.




                                     7
                Predicate Acts Occurring While a Juvenile

    Appellant also challenges his conviction for conspiracy to commit a
RICO violation, claiming that the evidence supported two conspiracies, not
one, and neither was related to SUR 13. We disagree and conclude that
the evidence showed a single overarching conspiracy of which appellant
was a member. There is no requirement that each member of a conspiracy
conspire directly with every other member of the conspiracy. See United
States v. Friedman, 854 F.2d 535, 561 (2d Cir. 1988) (“[A] RICO conspiracy
is by definition broader than an ordinary conspiracy to commit a discrete
crime. Each member of a RICO conspiracy need only conspire to
participate in the affairs of the alleged enterprise through two predicate
crimes.”).

   One of the predicate acts charged by the state occurred when appellant
was still a juvenile. Appellant argues that the court should have stricken
that act, because at the time of the information the RICO statute, section
895.02(1)(a), Florida Statutes (2007), allowed only racketeering which was
“chargeable by information or indictment,” not by juvenile petition. After
October 2008, the statute was amended to add that crimes chargeable by
“petition” could be the basis for racketeering charges. He claims that to
permit his juvenile delinquency adjudications to be included was an ex
post facto application of the amended statute.

   We agree with the state, however, that this was not a substantive
change in the statute. The RICO statute focuses on the conduct
proscribed, not the individual. Appellant was not being charged with the
crimes committed while he was a juvenile; these were simply the predicate
acts. In 2007 when the indictment was filed, the crime of resisting arrest
was “chargeable” by information or indictment. Therefore, it would qualify
as a predicate act. Moreover, the Legislature clearly intended to include
within the ambit of section 895.02, Florida Statutes (2007), juvenile
delinquent acts committed by criminal gang members, as in 2007 it
defined a “criminal street gang” as group whose primary activities were
“the commission of criminal or delinquent acts[.]” § 874.03, Fla. Stat.
(2007) (emphasis supplied).

                      Denial of Motion for Severance

   Finally, appellant claims that the trial court erred in denying his motion
to sever his trial from his co-defendants. An order granting or denying a
motion for severance must be upheld unless there is a showing of abuse
of discretion. Crossley v. State, 596 So. 2d 447, 450 (Fla. 1992).


                                     8
   Appellant moved to sever prior to trial. He argued that the acts of one
of his co-defendants, Trejo, were not related in time with his acts. Trejo’s
acts occurred in July/August 2007, and appellant’s predicate acts
occurred in 2000 and 2006. He also argued that only five of the eighty-
one total predicate offenses, for both him and his co-defendants, related
to him. He asserts that the state presented evidence of two murders,
attempted murder, shootings, drug trade, arson and other gang crimes in
which he was not involved, which caused severe prejudice to him. As to
one of the murders, the state alleged that he was involved, although the
jury disagreed. The state, on the other hand, contends that because this
was a crime of racketeering based upon a criminal enterprise, namely the
criminal street gang, and the state sought to prove that appellant was a
leader of the gang, the evidence of the other predicate acts was necessary
to show how the gang operated and that the gang was involved in
racketeering activity.

   In essence, appellant is claiming “spillover” prejudice from the
numerous predicate acts in which he had no direct involvement. In U.S. v
DiNome, 954 F.2d 839, 843 (2d Cir. 1992), the court said of such a claim:

      [T]he government must prove an enterprise and a pattern of
      racketeering activity as elements of a RICO violation. 18
      U.S.C. § 1962(c). Proof of these elements may well entail
      evidence of numerous criminal acts by a variety of persons,
      and each defendant in a RICO case may reasonably claim no
      direct participation in some of those acts. Nevertheless,
      evidence of those acts is relevant to the RICO charges against
      each defendant, and the claim that separate trials would
      eliminate the so-called spillover prejudice is at least
      overstated if not entirely meritless.

Id. at 843. Just as in the RICO trial in DiNome,

    [T]he evidence of the . . . various criminal activities was,
    therefore, relevant to the RICO charges against each appellant
    . . . . because it tended to prove: (i) the existence and nature of
    the RICO enterprise and (ii) a pattern of racketeering activity on
    the part of each defendant by providing the requisite relationship
    and continuity of illegal activities.

Id. The same reasoning applies in this case. The predicate acts against
other members were necessary to explain the nature of the gang and its
purpose as well as the continuity of the illegal activities.


                                     9
    “A denial of a motion for severance constitutes an abuse of discretion
only if the defendant can demonstrate that he was injured by having a
joint trial.” Daniels v. State, 634 So. 2d 187, 192 (Fla. 3d DCA 1994).

      Severance is not necessary, however, “when all the relevant
      evidence regarding the criminal offense is presented in such a
      manner that the jury can distinguish the evidence relating to
      each defendant’s acts, conduct, and statements, and can then
      apply the law intelligently and without confusion to determine
      the individual defendant’s guilt or innocence.”

Coleman v. State, 610 So. 2d 1283, 1285 (Fla.1992) (quoting McCray v.
State, 416 So. 2d 804, 806 (Fla. 1982)). Here, the jury clearly was able to
make the distinctions between the evidence relating to each defendant’s
acts, because it did not find that appellant was involved in the predicate
act of attempted murder. The court did not abuse its discretion in denying
the motion for severance.

  For the foregoing reasons, we affirm the convictions and sentences of
appellant.

MAY and GERBER, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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