Wester v. State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2021-2114

_____________________________

ZACHARY WESTER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Jackson County.

James J. Goodman, Judge.

November 13, 2024

M.K. THOMAS, J.

Zachary Wester, a sheriff’s deputy, was found guilty on

nineteen of sixty-seven charged counts, including one count of

racketeering under section 895.03(3), Florida Statutes (2021),

Florida’s Racketeer Influenced and Corrupt Organization Act

(RICO Act). Wester raises three issues on appeal, only one of which

warrants discussion. He argues that the trial court reversibly

erred in denying his motion for judgment of acquittal (JOA) on the

racketeering charge because the State failed to establish the

required element of a racketeering “enterprise.” Specifically, he

argues that because the State acknowledged that he acted alone in

the commission of the crimes, an enterprise could not have existed.

The issue is a matter of first impression for this Court. We

rephrase the salient legal question presented as follows: Whether,

under the RICO Act, 1 the State must prove that the enterprise in

which the defendant is alleged to have participated or been

employed by was being used by at least two persons with the

understood purpose of accomplishing some illegal objective or end?

Because we find that the RICO Act requires the State to do so,

Wester’s judgment and sentence as to the racketeering count must

be reversed and the case remanded for resentencing. Further, on

our own motion, we certify the above question to the Florida

Supreme Court as a matter of great public importance.

I. Facts

The basic but disturbing facts of this case are not in dispute.

In 2016, Wester began working for the Jackson County Sheriff’s

Office (JCSO) as a deputy. In the following years, Wester

conducted traffic stops while working his assigned area alone.

While performing searches during traffic stops, Wester planted

narcotics in selected vehicles. After Wester set up the unsuspecting

and innocent individuals, they were arrested and charged with

drug-related crimes, drastically impacting their lives. The crime

spree came to an end only when an internal affairs investigation

was initiated into Wester’s unauthorized disconnection of his body

camera during the traffic stops. 2

As a result of the internal affairs investigation, Wester was

suspended, and his patrol vehicle was impounded. A drug dog

alerted to the presence of drugs in his patrol vehicle. Upon

searching the vehicle, a Crown Royal bag was discovered

containing a syringe and plastic bags containing marijuana,

methamphetamine residue, and prescription pills. Wester was

charged by amended information with sixty-seven separate counts:

(Count 1) racketeering; (Counts 2–13) official misconduct; (Counts

14–25) perjury; (Counts 26–37) fabricating evidence; (Counts 38–

1 The RICO Act is set forth in sections 895.01 through 895.06,

Florida Statutes. The statutory references in this opinion are to

the 2021 version of Florida Statutes.

2 Per JCSO procedure, body cameras were to remain operating

from the beginning to the end of every traffic stop.

2

49) possession of a controlled substance; (Counts 50–60) possession

of drug paraphernalia; and (Counts 61–67) false imprisonment.

The information listed the predicate acts for the racketeering

count as misuse of office, perjury, tampering with evidence,

violations of drug abuse and prevention, and false imprisonment.

A jury found Wester guilty of official misconduct, perjury,

fabricating evidence, false imprisonment (as it relates to three

individuals who were his victims during his drug-planting spree),

and several counts of possession of a controlled substance and drug

paraphernalia, as well as the one count of racketeering. The trial

court adjudicated Wester guilty and sentenced him to

approximately twelve and a half years in prison. 3

II. Analysis

Wester argues on appeal, as he did below in support of his

motion for JOA, that the State failed to prove the “enterprise”

element for a racketeering conviction under section 895.03(3). In

the information and at trial, the State identified the JCSO as the

purported “enterprise.” Wester contends that no “enterprise”

existed for three reasons: 1) the JCSO could not be considered the

“enterprise,” since he acted alone and not in concert with another

officer or any individuals at the JCSO; 2) he acted in complete

contradiction to what the JCSO stands for; and 3) his actions in no

way benefited the JCSO. He interprets the statutory definition of

“enterprise” as requiring a common purpose or acting in concert

with others in the purported “enterprise,” here the JCSO.

Conversely, the State argues that the RICO Act does not require

the actions of more than one individual to satisfy “enterprise,” nor

does it require the JCSO to be corrupt or complicit with Wester.

Specifically, so long as Wester could not have committed the

criminal offenses absent his job as a deputy sheriff and without the

3 The trial judge ordered consecutive sentences on all the non-

RICO counts, adding up to 12 years, 6 months, and 8 days, with

the 5-year RICO sentence to run concurrently.

3

resources of the JCSO, the elements of enterprise are sufficiently

satisfied.

“The standard of review on a motion for judgment of acquittal

is de novo.” Cameron v. State, 290 So. 3d 632, 633 (Fla. 1st DCA

2020) (citing Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002)).

“Where the State has produced competent evidence to support

every element of a crime, the denial of a judgment of acquittal

must be affirmed.” Id. (citing Anderson v. State, 504 So. 2d 1270,

1271 (Fla. 1st DCA 1986)). Similarly, questions of law, including

questions of statutory construction, are reviewed de novo. See

Williams v. State, 244 So. 3d 356, 359–60 (Fla. 1st DCA 2018).

Florida’s RICO Act

In 1977, Florida enacted its own version of RICO. The

preamble of chapter 77-334, 1977 Florida Laws, reads in relevant

part as follows: 4

WHEREAS, organized crime is infiltrating and

corrupting legitimate businesses operating within this

state and this infiltration and corruption uses vast

amounts of money, power, and all the techniques of

violence, intimidation, and other forms of unlawful

conduct to accomplish its goals, and WHEREAS, in

furtherance of such infiltration and corruption, organized

criminal operatives utilize and apply to their unlawful

purposes laws of the State of Florida conferring and

relating to the privilege of engaging in various types of

business enterprises, and WHEREAS, infiltration and

corruption of legitimate business provide an outlet for

illegally obtained capital, harm innocent investors,

entrepreneurs, merchants, and consumers, interfere with

free competition, and thereby constitute a substantial

4 We acknowledge that “[t]he preamble is no part of the act,

and cannot enlarge or confer power nor control the words of the

act, unless they are doubtful or ambiguous.” Dorsey v. State, 402

So. 2d 1178, 1181 (Fla. 1981).

4

danger to the economic and general welfare of the State

of Florida . . . .

(Emphasis added.)

Chapter 895, Florida Statutes, is titled “Offenses Concerning

Racketeering and Illegal Debts.” Section 895.01, Florida Statutes,

declares, “Sections 895.01-895.06 shall be known as the ‘Florida

RICO (Racketeering Influenced and Corrupt Organization) Act.’”

(Emphasis added.) Undeniably, the target of the RICO Act is

organized crime.

The subsection of Florida’s RICO Act under which Wester was

convicted, provides as follows:

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 or the collection of an unlawful debt.

§ 895.03(3), Fla. Stat. (emphasis added).

The RICO Act defines key terms or phrases as follows:

“Enterprise” means any individual, sole proprietorship,

partnership, corporation, business trust, union chartered

under the laws of this state, or other legal entity, or any

unchartered union, association, or group 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 gang,

as defined in s. 874.03, constitutes an enterprise.

§ 895.02(5), Fla. Stat. (emphasis added). 5

“Pattern of racketeering activity” means engaging in

at least two incidents of racketeering conduct that have

5 Since its enactment in 1977, the definition of “enterprise”

has remained unchanged.

5

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 October 1, 1977, and that the last of such

incidents occurred within 5 years after a prior incident of

racketeering conduct.

§ 895.02(7), Fla. Stat. (emphasis added).

“Racketeering activity” means to commit, to attempt

to commit, to conspire to commit, or to solicit, coerce, or

intimidate another person to commit: [certain

enumerated offenses].

§ 895.02(8), Fla. Stat. (emphasis added). 6

The State’s information specifically charged as follows:

“Zachary Wester, while employed by, or associated with, an

enterprise, as defined by section 895.02(5), Florida Statutes, that

is, the Jackson County Sheriff’s Office, did conduct or participate,

directly or indirectly, in such enterprise through a pattern of

racketeering activity, as defined by section 895.02(7) and (8),

Florida Statutes , . . . .”

Florida & Federal RICO Acts

“The Florida RICO statute was largely modeled after the

Federal RICO Statute.” Gross v. State, 765 So. 2d 39, 42 (Fla.

2000). The definitions of “enterprise” and “pattern of racketeering”

are almost identical in both. However, the Florida Legislature

crafted a more expansive version, incorporating over ten

6 Florida’s definition of “racketeering activity” is much

broader than its federal counterpart, incorporating additional

listed crimes (misdemeanors and felonies) qualifying as

“racketeering activity” and applying more severe penalties. See

§ 895.02, Fla. Stat. Section 895.02(8) now lists over fifty-one

qualifying categories of crimes and incorporates a catch-all phrase

of any crimes listed in the Federal RICO Act (“Any conduct defined

as ‘racketeering activity’ under 18 U.S.C. s. 1961(1).”).

6

additional qualifying entities in its “enterprise” definition and an

exhaustive list of predicate crimes. 7 Furthermore, Florida added

the following substantive phrase to its definition of “enterprise,”

absent from its federal version: “and it includes illicit as well as

licit enterprises and governmental, as well as other, entities. A

criminal gang, as defined in s. 874.03, constitutes an enterprise.”

§ 895.02(5), Fla. Stat. Unlike Florida’s version, the federal RICO

law includes a liberal construction provision. See Etan Mark,

Monica F. Rossbach, Que Rico? Discarding the Fallacy that Florida

Rico and Federal Rico Are Identical, 86-Jan Fla. B. J. 10, (2012).

In its creation, the very raison d'etre of RICO was the control

of organized crime. The Florida Legislature purposefully and

repeatedly included the terms “organization” and “organized

crime” in its drafting of the RICO Act. “[I]t was the declared

purpose of Congress ‘to seek the eradication of organized crime in

the United States by strengthening the legal tools in the evidence-

gathering process, by establishing new penal prohibitions, and by

providing enhanced sanctions and new remedies to deal with the

unlawful activities of those engaged in organized crime.’” U.S. v

Turkette, 452 U.S. 576, 589 (1981) (citing RICO, 84 Stat. 923). In

Bowden v. State, 402 So. 2d 1173, 1174 (Fla. 1981), the Florida

Supreme Court expressed that the appropriate target of a RICO

prosecution is the “professional or career criminal.” “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.” Id. In 2000, this was reiterated in Gross:

“RICO was not intended to target ordinary criminals regardless of

the number of their crimes nor to simply expand the breadth of the

general conspiracy laws.” 765 So. 2d at 45.

7 Even including crimes such as removing the ears of pigs,

sheep or cattle before dressing them and violations of alcohol

storage laws. See Jackeline Dowd, Interpreting RICO: In Florida,

the Rules Are Different, 40 U. Fla. L. Rev. 127, 137 (1988).

7

Statutory Interpretation

We now turn to the text of the RICO Act. The plain language

of section 895.03(3), and its syntax, dictates that a RICO violation

is dependent on a series of relationships: “It is unlawful for any

person . . . employed by, or associated with, any enterprise . . . to

conduct or participate . . . in such enterprise through a pattern of

racketeering activity . . . .” § 895.03(3), Fla. Stat. Breaking the text

down segmentally instructs that the “person” must be “associated”

with the “enterprise”; the “person” must “conduct or participate” in

the “enterprise’s” affairs; the “conduct or participation” must be

“through” “racketeering activity”; and the “racketeering” must

form a “pattern.” Next, we analyze these relationships. As will be

discussed later, when read in context and with the Act’s purpose

in mind, these affairs must have an organized criminal purpose,

even if under the aegis of some legitimate endeavor on its surface.

A. “Enterprise”

The Legislature’s deliberate use in section 895.03(3) of the

ordinary term “person” along with the distributive determiner

“any” requires recognition of its singular tense. But the “any

person” reference should not be interpreted blindly as declaring

the Act’s applicability to a sole bad actor, as such an application

eviscerates the remaining provision of the statute. Logically, the

use of the singular noun “person” may indicate a charging or

procedural component. Consideration of the remaining portions of

the statute provides context.

In 2000, the Florida Supreme Court settled an inter-district

conflict in Gross. See 765 So. 2d at 39. The Third District Court of

Appeal had reversed a RICO conviction because the State failed to

prove the element of “enterprise.” 8 Boyd v. State, 578 So. 2d 718

(Fla. 3d DCA 1991). The Third District required three elements to

satisfy “enterprise”: 1) an ongoing organization, formal or

8 Boyd was convicted of RICO and various other crimes

committed during a two-week crime spree of robberies, auto theft

and second-degree murder. He committed some of the crimes alone

and others with various individuals. Gross, 765 So. 2d at 42.

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informal, with an identifiable decision-making structure for

controlling and directing the group rather than an ad hoc basis;

2) that various associates operate as a continuous unit; and 3) that

the organization have an existence separate and independent from

the pattern of racketeering in which it engages. Gross, 765 So. 2d

at 42. It also required a “purposive systematic arrangement

between members of the group” and that the “RICO statute was

not intended for the prosecution of criminals who merely got

together from time to time to commit sporadic criminal acts.” Id.

Accordingly, Boyd’s racketeering conviction was reversed because

“if there was nothing linking the members of the association to one

another except the commission of the predicate criminal acts, then

there is no enterprise.” Boyd, 578 So. 2d at 722.

The Fourth District Court rejected the Boyd elements and

applied a broader definition of “enterprise.” Gross v. State, 728 So.

2d 1206, 1208–09 (Fla. 4th DCA 1999). In affirming Gross’s

conviction for RICO violations, the court rejected any requirement

of a decision-making structure. Id. Gross was part of a group,

including two police officers, who robbed suspected drug dealers.

Id. at 1207. Ultimately, our supreme court resolved the

interdistrict conflict by adopting the broad application of the term

“enterprise” as applied in Gross. Now, to prove enterprise the State

must prove only “(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.” Gross, 765 So. 2d at 45 (citing

United States v. Turkette, 452 U.S. 576, 583 (1981)).

Language in Gross and other opinions with fact patterns

involving multiple actors utilize plural tense in addressing

statutory requirements. For example, in citing to the Eleventh

Circuit, the supreme court advised, “The Eleventh Circuit has

interpreted RICO to reach any group of individuals ‘whose

association, however loose or informal, furnishes a vehicle for the

commission of two or more predicate crimes.’” Id. at 44 (citing

United States v. Cagnina, 697 F.2d 915, 920 (11th Cir.1983)).

Ultimately, Gross’s interpretation is that at least two people,

loosely organized, using some artifice to leverage their criminal

objectives, is required.

9

In Gross, our supreme court made a critical distinction: “[t]he

‘enterprise’ is an entity for the common purpose of engaging in a

course of conduct. The ‘pattern of racketeering activity’ is, on the

other hand, a series of criminal acts.” Id. at 43 (citing Turkette, 452

U.S. at 583 (1981)). Thus, an analysis in which the “enterprise” is

considered to be the criminal activity is misplaced. Gross explained

as follows:

The difference among the circuits in the definition of the

enterprise element rests mainly on differing views of the

legislative intent behind Federal RICO. The narrow view

is essentially predicated on the belief that RICO was

enacted to stop the infiltration of organized crime and

racketeering into legitimate organizations. See Bledsoe,

674 F.2d at 661. Hence, the opinions adopting this view

point out that at the time of the enactment of RICO,

Congress was specifically concerned with the

proliferation of organized crime into labor unions and

various legitimate industries. See id. Consequently,

RICO was enacted to combat the spread of organized

crime which threatened the viability of businesses and

the economic state of the country itself. In that vein,

RICO was not intended to target ordinary criminals

regardless of the number of their crimes nor to simply

expand the breadth of the general conspiracy laws.

Id. at 44–45. Relevant to our analysis, Gross further clarified, “The

first element, requiring proof of the existence of an ongoing

organization with a common purpose of engaging in a course of

conduct, was established by the State. This element may be proved

with evidence of the common purpose among the members.” Id. at

46.

In Wilson v. State, 596 So. 2d 775, 781 (Fla. 1st DCA 1992),

Wilson argued that his RICO conviction was improper because he

was charged with associating with an enterprise that consisted

only of himself. In the information, the State identified Wilson as

the enterprise; that is, that Wilson was employed by or associated

with himself to conduct or participate in a pattern of racketeering

activity. Wilson recruited four individuals in a scheme involving

stolen and forged checks. Using stolen checks that Wilson made

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payable to the four individuals, he had them deposit the checks

into their respective bank accounts and then withdraw the money

to be shared by the group. At trial, the State argued the four

individuals helping launder the money were the “enterprise.” Id.

at 776.

In analysis, this Court stated “[i]f solo crimes by a self-

employed person violated [the RICO Act] then the crime of

racketeering, with its increased penalties, would apply to a

substantial percentage of crimes.” Id. at 781 (citing Masonoff v.

State, 546 So. 2d 72, 74 (Fla. 2d DCA 1989)). It was determined

that the fact that Wilson operated through a sole proprietorship

was immaterial, explaining, “The relationship of a person with an

enterprise requires a relationship involving two humans—not a

person and some type of property interest.” Id. (citing Masonoff,

546 So. 2d at 74).

Reversing Wilson’s RICO conviction, this Court noted that no

entity separate from Wilson, such as a sole proprietorship, was

alleged to exist. Id. The charging information declared that Wilson

himself was specifically alleged to be the enterprise as well as the

person who associated with the enterprise. Id. This Court held that

“[w]ithout some sort of identifiable legal or de facto entity which

stands apart from the associating person, it cannot be said that an

‘association’ has occurred.” Id. Thus, an association is required in

the context of the enterprise.

In Doorbal v. State, 983 So. 2d 464 (Fla. 2008), the Florida

Supreme Court declared, “[t]o satisfy the ‘enterprise’ element of

the RICO statute, the State must demonstrate that a defendant

acted in concert with at least one other person, organization, or

entity.” 983 So. 2d at 492 (emphasis added) (citing State v. Jackson,

677 So. 2d 938, 941 (Fla. 2d DCA 1996)). Doorbal appealed the trial

court’s denial of his motion to sever his trial from his co-

defendants. Id. at 492. Our supreme court affirmed the denial, in

part on grounds of preservation, because under the RICO statute,

Doorbal's involvement with the co-defendants was an element of

the crime that the State was required to prove. Id. Thus,

consistently, enterprise has been defined as contemplating some

concerted action between at least two people, seeking to use some

artifice of organization to leverage a criminal objective.

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The plain text of the RICO Act in its entirety, Gross, and

Doorbal compel a conclusion that the definition of “enterprise” has

as its purpose the specification of all that an enterprise could be,

but satisfaction of the broad definition (which the JCSO satisfies

because of the universality of the definition) has at its purpose

something other than serving as an element of the offense—if a

definition includes everything, it excludes nothing. The RICO Act

is about targeting organizations that leverage criminal conduct.

But RICO differs from “conspiracy.” RICO violations are punished

more harshly because of the organizational component of the

offense and the use of an “enterprise” (again which can be almost

anything, i.e. sole proprietorship, partnership, licit or illicit,

government or private, etc. . . . ) as an artifice or tool to facilitate

the organized criminal conduct. This distinction makes a RICO

violation especially dangerous and harmful to the public.

While licit or illicit activities may be involved in racketeering,

for the crime to be charged under RICO, the enterprise must be

shown to be used by two or more people to facilitate some illegal

objective. When Congress in 1970 and then the Florida Legislature

in 1977 enacted their respective RICO Acts, the target was a

specific brand of crime: mafia related groups. Over time the

application broadened to capture all kinds of organized crime,

including for example, criminal street gangs. Arguably, the

stretching of the RICO Act beyond its intended purpose results in

“justice made blind.” Alain L. Sanders, Law: Showdown at Gucci,

Priscilla Painton/New York, Time Magazine, Aug. 21, 1989. But,

even granting prosecutors extraordinary latitude in its

application, RICO is intended to focus on “patterns of criminal

behavior rather than individual crimes.” Id. We move now to the

critical, interdependent relationship between “enterprise” and

“through a pattern of racketeering activity.”

B. “Through a Pattern of Racketeering Activity”

The significance of the phrase “through a pattern of

racketeering activity” cannot be overstated. Our supreme court

has distinguished the term/phrase “enterprise,” and “pattern of

racketeering activity” as follows:

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That a wholly criminal enterprise comes within the ambit

of the statute does not mean that a “pattern of

racketeering activity” is an “enterprise.” In order to

secure a conviction under RICO, the Government must

prove the existence of an “enterprise” and the connected

“pattern of racketeering activity.” The enterprise is an

entity, for present purposes a group of persons associated

together for a common purpose of engaging in a course of

conduct. The pattern of racketeering activity is, on the

other hand, a series of criminal acts as defined by the

statute. The former is proved by evidence of an ongoing

organization, formal or informal, and by evidence that the

various associates function as a continuing unit. The

latter is proved by evidence of the requisite number of

acts of racketeering committed by the participants

in the enterprise. While the proof used to establish these

separate elements may in particular cases coalesce, proof

of one does not necessarily establish the other. The

“enterprise” is not the “pattern of racketeering activity”;

it is an entity separate and apart from the pattern of

activity in which it engages. The existence of enterprise

at all times remains a separate element which must be

proved by the Government.

Gross, 765 So. 2d at 43 (emphasis added in bold) (quoting

Turkette, 452 U.S. at 583).

It is unnecessary to decipher the internal phrase “pattern of

racketeering” as this connotes only the commission of a requisite

number of predicate acts within a specified time. See § 895.02(7),

Fla. Stat. Thus, we contemplate the meaning of the qualifying

preposition “through.” Illustrative is the Second District’s analysis

in Jackson v. State, 858 So. 2d 1211 (Fla. 2d DCA 2003). Our sister

court reversed Jackson’s conviction for racketeering, finding the

State failed to prove that he was a member of a gang, he engaged

in transactions with them or on their behalf, or shared proceeds.

Id. at 1212. Instead, the only evidence showed Jackson knew and

hung out with gang members, but no evidence established his

association included complicity with the group—i.e.. that he was

complicit with the group “through a pattern of racketeering

activity.” Id. Because the evidence showed that Jackson, acting

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alone, only engaged in ordinary criminal activity, the RICO

conviction was reversed. Id. at 1213.

“Florida courts have looked to the federal courts for guidance

in construing RICO provisions.” Gross, 765 So. 2d at 42–43.

Several federal cases are illustrative. In United States v. Cauble,

706 F.2d 1322, 1329 (5th Cir. 1983), Cauble was charged with

multiple RICO violations for his involvement in the “Cowboy

Mafia” through the use of his various corporations in the

commission of the criminal acts. In affirming the RICO

convictions, the federal court instructed, “RICO criminalizes the

conduct of an enterprise through a pattern of racketeering activity

and not merely the defendant’s engaging in racketeering

activity. Therefore, there must be a nexus between the enterprise,

the defendant, and the pattern of racketeering activity.” Id. at

1331–32. Cauble further declared that the nexus did not require

that the enterprise have benefitted from the racketeering activity.

The federal court held that there must be an effect on the

enterprise, but the effect may be direct, such as the deposit of

money in the enterprise’s bank account; or indirect, such as the

retention of the enterprise’s existing clients. Id. at 1332–33, 1344.

However, the government need not prove that the racketeering

activity benefited or “advanced the affairs of” the enterprise. Id. at

1332 n.24 (citing United States v. Hartley, 678 F.2d 961, 990–91

(11th Cir. 1982); United States v. Welch, 656 F.2d 1039, 1062 (5th

Cir. 1981)).

In United States v. Welch, the court addressed the nexus

required of a RICO conviction. Welch—who was the sheriff—plus

two of his deputies, and a city commissioner, were charged with

multiple crimes, including a RICO charge. Id. at 1047–48. Welch

was accused of facilitating illegal gambling because he failed to

shut down illegal gambling operations despite knowing they

existed. Id. at 1044–48. Welch challenged his RICO conviction,

arguing that the government failed to show that the activities of

the sheriff’s office were conducted “through the acts of

racketeering” given that no proof was offered that the predicate

offenses “promoted or advanced” the affairs of the sheriff’s office

and that the proceeds Welch received from the racketeering went

to himself and not the sheriff’s office. Id. at 1060. Addressing the

14

nexus requirement, the Fifth Circuit did not apply the word

“through” (in the phrase “through a pattern of racketeering

activity”) as requiring the enterprise to benefit from the

racketeering activities, noting that all the statute required is that

“the Government prove the affairs of the enterprise are conducted

through a pattern of racketeering activity.” Id. at 1061. Thus, it

required only proof of “a relation between the predicate offenses

and the affairs of the enterprise.” Id. The RICO conviction was

upheld. Of note, the fact pattern presented in Welch involved

multiple complicit actors working within the sheriff’s office, the

enterprise.

In United States v. Ruiz, 905 F.2d 499, 500 (1st Cir. 1990),

Ruiz appealed his conviction on racketeering and drug trafficking

charges. Ruiz and his co-defendant were police officers. Id. They

obtained cocaine from drug traffickers and, in return, allowed the

drug traffickers to continue dealing drugs while providing them

with confidential police information. Id. On appeal, Ruiz argued

that the crimes for which he was charged did not show

“racketeering activity” because the necessary connection between

the group and the enterprise, the police department, was lacking.

Id. at 504. The federal court disagreed, finding as follows:

Ruiz’s acquisition of cocaine, and his quid pro quo

conduct, were inextricably intertwined with his authority

and activities as an employee of the [police department].

His ability to intimidate dealers with the power of arrest,

his access to RMV data and inside information absent

warrants, his assistance in transporting cocaine, and his

ability to supply ammunition were all made possible

through, or facilitated by, his employment. In fine,

defendant’s illegal activities were clearly helped along by

the authority vested in him as a police officer and by the

reactions (fear and timorousness in some instances)

which a police officer, uniquely, has the ability to

engender in others by virtue of his position.

Id. The court later opined that “[t]he fact that the activity

continued for so long fully buttressed the conclusion that Ruiz had

set up shop and was engaged in a regular way of doing illicit

business under the aegis of the enterprise.” Id. at 505. Ruiz’s labors

15

on behalf of the criminal activity were integrated with his police

work and the rewards of his complicity (money) were intermixed

with his law enforcement role. Id. at 504. The court’s analysis was

that “enterprise” dealt with the method(s) through which the

prohibited activities were carried out. Again, in Ruiz there were

multiple defendants.

Compare now the case of United States. v. Shamah, 624 F.3d

449 (7th Cir. 2010). Shamah was a police officer who decided, with

his partner, to supplement his income by stealing money and drugs

from drug dealers. Id. at 451. They stole the drugs with the intent

to plant the drugs on individuals during future stops. Id. at 452.

Shamah and his partner were arrested and charged with

conspiracy in violation of RICO, among other charges. Id. at 451–

52. While Shamah’s partner pleaded guilty, Shamah proceeded to

trial. Id. On appeal, Shamah argued that he could not be guilty

under RICO because, in part, he was not an operator or manager

of the police department for which he worked. Id. at 452. In

affirming Shamah’s conviction, the court noted that RICO cases

include those “where a criminal uses an enterprise to engage in

criminal activities but is generally ‘content to allow it to conduct

its normal, lawful business.’” Id. at 455 (quoting Fitzgerald v.

Chrysler Corp., 116 F.3d 225, 227 (7th Cir. 1997)). The court

explained why Shamah’s position within the police department

supported his RICO conviction:

As the public face of the department, Shamah was given

a great deal of responsibility and trust in operating and

directing its affairs. His manipulation of this power

transformed legitimate police functions into arms of his

illegal endeavors. He usurped the department’s identity

and turned it into a criminal enterprise hiding behind a

facade of justice.

The government presented ample evidence that

Shamah and [co-defendant] were not acting as “mere”

law-abiding police officers when they forced civilians to

part with money and drugs, performed illegal arrests and

stops, and planted evidence on civilians. Given his

discretion and authority as a police officer, and the way

in which he chose to direct his powers, Shamah operated

16

or managed the integral duties of the police department’s

daily affairs. And the government presented sufficient

evidence for the jury to conclude that Shamah conducted

the affairs of the enterprise.

Id.

In United States v. Presgraves, 658 F. Supp. 2d 770, 774 (W.D.

Va. 2009), Presgraves, the Sheriff of Page County, was indicted on

twenty-three counts including RICO, sexual assault, and

tampering with a witness. In moving to dismiss the RICO charge

he did not dispute that the sheriff’s office was an enterprise under

RICO or that he operated or managed the enterprise. Instead, he

argued that the predicate acts of racketeering charged were

unrelated to the affairs of the sheriff’s office, and that they did not

constitute “a pattern of racketeering activity.” Id. at 775. The

federal court rejected the challenge, finding the fact that

Presgraves physically used his office to carry out the crimes and

that there was no benefit to the enterprise that is required to be

proven, he satisfied the nexus requirement. Id. at 776.

Although the above federal cases involved corrupt law

enforcement officers, like Wester’s occupation in this case, and

recognized the critical interplay between “enterprise” and

“through a pattern of racketeering activity,” the issue of required

complicity among or between multiple actors was not at issue.

However, the United States Supreme Court has explicitly rejected

the interpretation of the federal RICO Act to include prosecution

of sole actors in a civil context. See Reves v. Ernst & Young, 507

U.S. 170, 185 (1993) (“Indeed, this Court previously has said that

liability “depends on showing that the defendants conducted or

participated in the conduct of the ‘enterprise's affairs,’ not just

their own affairs.”). Similarly, in United States v. Benny, 786 F.2d

1410 (9th Cir.1986), cert. denied, 479 U.S. 1017 (1986), the Ninth

Circuit declined to apply the RICO Act to sole bad actors:

We adopt the Seventh Circuit's analysis as the rule

for this circuit. The rule avoids the ontological

conundrum of interpreting RICO to make liable an

individual who associates with himself or herself, while

it maintains at the same time RICO’s ability to

17

discourage and punish illegal activity associated with

various groups.

Id. at 1416.

Taken together, the plain text of Florida’s RICO Act, Doorbal,

and Gross compel the interpretation that through a “pattern of

racketeering activity” buttresses the use and definition of

“enterprise” in requiring some criminal design behind it, even if it

is a legitimate business or endeavor being utilized. The pattern

must 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.” See § 895.02(7), Fla. Stat. Logically, one cannot

participate in an “enterprise” through such a pattern (a pattern

that must have similar intent, results, accomplices, victims, or

motive, or some interrelation) unless the enterprise itself has some

underlying criminal motive.

Here, there is no question that Wester was employed by or

associated with the JCSO. Further, it is undisputed that he used

the office of sheriff to carry out his crimes. That is to say, his acts

were “inextricably intertwined” with his law enforcement duties

and facilitated the prohibited acts. However, the evidence

establishes that he acted alone and not in concert with any other

individuals in the commission of the crimes “through” a pattern of

racketeering activity. To apply the RICO Act otherwise, would rub

against the plain text of the statute and extinguish any line of

demarcation between simply committing the predicate acts

(ordinary criminal activity) and the intent of the more severe

ramifications of organized crime.

The RICO Act does not criminalize one person’s use of his or

her place of employment to commit related crimes. Instead, the

crime exists when two or more people work together in some way,

using any artifice or means of organization, to advance some

criminal ends. RICO contemplates two or more people working

together using even a legitimate business to facilitate or leverage

a criminal purpose that may have been more difficult to accomplish

alone. Because the crime set out in section 895.03(3) requires that

the person be both associated with/employed by the “enterprise”

18

and to participate in it through a pattern of racketeering activity,

there is every indication in the text that while the “enterprise” can

be anything and still be an “enterprise,” to prove the crime, there

must be evidence that at least two people (not necessarily the

defendant) worked together to put that enterprise to criminal use.

The statute allows a person to be convicted of RICO, even if he was

on the periphery and did not know all (or any) of the details of the

“enterprise,” provided he associated with or was employed by that

criminal enterprise and participated in it (this aspect of the statute

suggesting once again there has to be some agreed-upon criminal

aspect to the enterprise) through at least two enumerated offenses

having a similar intent, purpose, or set of victims. Put simply,

“enterprise” serves to criminalize what the statute envisions as a

supercharged conspiracy.

Canons of Statutory Interpretation

The Harmonious-Reading Canon also supports the

interpretation of Florida’s RICO Act that its violation requires

multiple, complicit actors.

The provisions of a text should be interpreted in a way

that renders them compatible, not contradictory. . . . The

imperative of harmony among provisions is more

categorical than most other canons of construction

because it is invariably true that intelligent drafters do

not contradict themselves (in the absence of duress).

Hence there can be no justification for needlessly

rendering provisions in conflict if they can be interpreted

harmoniously.

Matheson v. Miami-Dade Cnty., 258 So. 3d 516, 522 (Fla. 3d DCA

2018) (quoting Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts, 167, 180 (2012).

Accepting the State’s purported application of the RICO Act

to criminals acting alone would create unintended results. A

plethora of examples can be imagined. Suppose that Ethel, a 76-

year-old, who works at her church part-time as a volunteer

bookkeeper, skims $5 from the church bingo pot on three occasions

to fund her lunch. Under the State’s proposed application, Ethel

19

would be subject to either indictment for petty theft (possible

sentence of up to 60 days in jail) or for violation of the RICO Act

(possible sentence of up to 30 years). Although she used an

“enterprise”—a church that was separate and distinct from

herself— and she could not have committed the crime if not for her

job as the accountant, she did not act in concert with another or

act in complicity with anyone else to carry out the pattern of

racketeering activity. In practical application, the State’s proposed

interpretation of the RICO Act would at its core, only require the

existence of an enterprise (a business, formal or informal, legal or

illegal) as a necessary component of the crime. Respectfully, such

an application discounts the plain text of the statute when applied

in context and recognizing all required provisions, making it

indistinguishable from application to everyday commission of

predicate crimes.

Likewise, suppose Bob, the Wildlife and Fisheries Game

Warden, is required by law to confiscate illegally taken grouper

from any unlicensed fisherman. But instead of discarding the fish

and letting it go to waste, Bob takes it home, grills and eats it.

Under the State’s proposed interpretation, Bob is guilty of

racketeering. Although he acted alone and did not conspire with

another to sell the fish and generate profits, he committed

prohibited acts using his job, an enterprise.

Lastly, a fraternity member lives in the chapter house. He

occasionally sells marijuana to various college students. Under the

State’s interpretation, the student is subject to prosecution under

RICO. The enterprise is the fraternity/chapter house. Although

there was no complicity by any other member or the fraternity, he

is guilty of racketeering because he associated with an “enterprise”

separate and distinct from himself. Such a tortured application of

the RICO Act, a penal statute, results in predictable and

unreasonable ambiguity.

Under the State’s interpretation, every single criminal

defendant who commits any third-degree felony punishable by no

more than five years in prison, is guilty of a first-degree felony

punishable by thirty years in state prison, simply because the

defendant is employed or is somehow “associated” with another

person or entity, neither of whom or which had any criminal

20

involvement in the commission of the predicate crime. The

Legislature never intended to punish third-degree felons with

first-degree penalties simply because they committed the third-

degree felony while employed or associated with innocent parties

or entities. The United States Supreme Court and other federal

courts have condemned the State’s proposed interpretation. See

Reves, 507 U.S. 170; Benny, 786 F.2d 1410.

Rule of Lenity

Lastly, the rule of lenity requires “that penal statutes must be

strictly construed according to their letter.” Perkins v. State, 576

So. 2d 1310, 1312 (Fla. 1991). “Therefore, any ambiguity or

situation in which statutory language is susceptible to differing

constructions must be resolved in favor of the person charged with

an offense.” State v. Byars, 823 So. 2d 740, 742 (Fla. 2002). “To the

extent that section 775.021(1) expresses the rule of lenity, it is ‘a

canon of last resort and only applies if the statute remains

ambiguous after consulting traditional canons of statutory

construction.’” Schmidt v. State, 310 So. 3d 135, 137 (Fla. 1st DCA

2020) (Winokur, J., concurring) (quoting Paul v. State, 129 So. 3d

1058, 1064 (Fla. 2013)).

The punitive nature of the RICO Act makes it especially

susceptible to the rule of lenity. Accordingly, if one considers

subsections 895.03(2) and (3) to be equivocal regarding

applicability to a sole bad actor, the ambiguity must be resolved in

Wester’s favor.

III. Conclusion

Because the RICO Act does not apply to an individual who is

associated with or employed by an enterprise, but who acts alone

in use of such enterprise in the commission of prohibited criminal

activities, we are compelled to vacate Wester’s conviction for

racketeering because the trial court reversibly erred in denying his

motion for JOA below. Accordingly, the case is remanded for

resentencing. The convictions for the remaining non-racketeering

counts are affirmed.

21

This is a complex legal issue, and its answer has far-reaching

impact. On our own motion, we certify the following question of

great public importance to the Florida Supreme Court:

WHETHER, UNDER THE RICO ACT, THE STATE MUST PROVE

THAT THE ENTERPRISE IN WHICH THE DEFENDANT IS

ALLEGED TO HAVE PARTICIPATED IN OR BEEN EMPLOYED BY

WAS BEING USED BY AT LEAST TWO PERSONS WITH THE

UNDERSTOOD PURPOSE OF ACCOMPLISHING SOME ILLEGAL

OBJECTIVE OR END?

AFFIRMED in part, REVERSED in part, and REMANDED;

CERTIFIED QUESTION.

LEWIS, J., concurs; Osterhaus, C.J., concurs in part, and dissents

in part, with opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

OSTERHAUS, C.J., concurring in part, and dissenting in part.

I concur with my colleagues insofar as they affirm Mr.

Wester’s convictions and I join in the certified question. I

respectfully dissent, however, with respect to their treatment of

the racketeering issue. I see no problem with Wester’s

racketeering conviction. The text of Florida’s Racketeer Influenced

and Corrupt Organization Act (Florida’s RICO Act), as well as

factually similar cases, show that racketeering encompasses

crimes like Wester’s, where an individual employed by an entity

activates the weight of that entities’ authority and tools—the

entire law enforcement system in Jackson County in this case—in

a criminal scheme. Here, unbeknownst to the Sheriff’s Office,

Deputy Wester effectively “usurped the department’s identity and

turned it into a criminal enterprise hiding behind a facade of

justice.” United States. v. Shamah, 624 F.3d 449, 455 (7th Cir.

22

2010). Because Wester’s false arrests and reports caused his

victims to be wrongfully jailed by the Sheriff’s Office, charged with

crimes, and hauled before courts, his actions were covered by the

racketeering statute. His racketeering conviction should be

affirmed.

I.

We review the trial court’s denial of a motion for judgment of

acquittal de novo. See Kemp v. State, 166 So. 3d 213, 216 (Fla. 1st

DCA 2015). “In doing so, [this Court] must consider the evidence

and all reasonable inferences therefrom in a light most favorable

to the State.” Bradwell v. State, 300 So. 3d 325, 327 (Fla. 1st DCA

2020).

As noted by the majority opinion, the basic facts aren’t

disputed. While working for the Jackson County Sheriff’s Office

(JCSO) part of Deputy Wester’s job included making traffic stops.

During a number of these stops, Wester planted narcotics in the

vehicles of unsuspecting and innocent victims. Abusing the

authority of the Sheriff’s Office and his status as a sworn law

enforcement officer, Wester wrongfully arrested multiple victims

and, under the guise of doing regular police work, caused them to

be jailed, falsely charged with drug-related crimes, and

prosecuted.

Wester challenges his racketeering conviction on appeal by

arguing that the State failed to prove the “enterprise” element

required to convict him under Florida’s RICO Act, § 895.03(3). At

trial, the State identified the Sheriff’s Office as the relevant

“enterprise.” But Wester contends that the Sheriff’s Office fails to

qualify as an “enterprise” under the Act because he did not act in

concert with anyone at the Sheriff’s Office; he acted in derogation

of what the Sheriff’s Office stands for; and the Sheriff’s Office

gleaned no benefit from his actions. He interprets the definition of

“enterprise” to require a shared illicit purpose between himself and

the Sheriff’s Office in carrying out the criminal scheme. The State,

on the other hand, argues that Florida’s RICO Act doesn’t require

the Sheriff’s Office or other officials to have been purposefully

complicit in Wester’s crimes. Instead, Wester’s conviction should

stand because he committed the crimes while employed by the

23

Sheriff’s Office and only by leveraging the Office’s authority, tools,

and personnel to complete his crimes.

II.

Turning to the text of Florida’s RICO Act, I understand, like

the majority here, that we derive the meaning of statutes, of

course, by looking to the text itself, as understood in its context.

See Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022); see

also Tsuji v. Fleet, 366 So. 3d 1020, 1025 (Fla. 2023).

Florida’s RICO Act provides, in relevant part, that “[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.” § 895.03(3),

Fla. Stat. (emphasis added to highlight defined terms).

Reiterating the definitions cited by the majority above,

Florida’s RICO Act provides:

“Enterprise” means any individual, sole proprietorship,

partnership, corporation, business trust, union chartered

under the laws of this state, or other legal entity, or any

unchartered union, association, or group 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 gang,

as defined in s. 874.03, constitutes an enterprise.

§ 895.02(5), Fla. Stat. (2021).

“Pattern of racketeering activity” means 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 October 1, 1977, and that the last of such incidents

occurred within 5 years after a prior incident of

racketeering conduct.

24

§ 895.02(7), Fla. Stat. (2021).

“Racketeering activity” means to commit, to attempt to

commit, to conspire to commit, or to solicit, coerce, or

intimidate another person to commit: [certain

enumerated offenses]. ∗

§ 895.02(8), Fla. Stat. (2021). The question of whether Florida’s

RICO Act applies to Wester’s crime turns on the plain language of

these statutes.

To begin with, § 895.03(3) provides that it is unlawful for “any

person employed by, or associated with, any enterprise” to engage

in the forbidden activity. The Legislature’s use of “any person”

indicates that the statute may be applied to a single individual who

works through an enterprise to commit certain crimes. Id. See Any,

Merriam–Webster Online Dictionary, www.merriam-webster.com/

dictionary/any (defining “any” as “one or some indiscriminately of

whatever kind [or] quantity.”).

Florida’s RICO Act defines “enterprise” to include “illicit as

well as licit enterprises and governmental, as well as other,

entities.” § 895.03(3), Fla. Stat. The Florida Supreme Court

describes two requirements for proving “enterprise”: “(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.” Gross v. State, 765 So. 2d 39, 44–45 (Fla. 2000)

(citing United States v. Turkette, 452 U.S. 576, 583 (1981)). None

of these statutes requires that the enterprise itself possess the

same criminal intentions as the defendant. Rather, the Act

encompassed Wester’s behavior insofar as he was “employed by .

. . [the Sheriff’s Office], a licit . . . governmental . . . entit[y] . . .

[and] participate[d], directly or indirectly, in [the Sheriff’s Office]

through [engaging in at least two incidents of racketeering

conduct that have the same or similar intents, results,

∗

Florida’s broad definition of racketeering lists over fifty

qualifying categories of crimes as well as crimes listed in the

Federal RICO Act. See § 895.02(8), Fla. Stat. (including “[a]ny

conduct defined as ‘racketeering activity’ under 18 U.S.C. s.

1961(1)”).

25

accomplices, victims, or methods of commission].” §§ 895.03(3), §

895.02(5), (7), Fla. Stat.

My core disagreement with Wester’s argument and the

majority’s opinion is that the statute doesn’t require the enterprise

or other officials to have been purposefully complicit in Wester’s

scheme. Rather, so long as “any person”—Wester himself in this

case—participates in an enterprise “through a pattern of

racketeering activity,” the Act reaches the actions. § 895.03(3), Fla.

Stat. Wester could be prosecuted lawfully for racketeering, even

when the Sheriff’s Office didn’t know about or benefit from his

crimes, because he used the Sheriff’s Office and acted through his

police work to carry out his scheme. See Doorbal v. State, 983 So.

2d 464, 483 (Fla. 2008) (recognizing that “[t]o satisfy the

“enterprise” element of the RICO statute, the State must

demonstrate that a defendant acted in concert with . . . [an]

entity”). More specifically, it is undisputed that the Sheriff’s Office

employed Wester and vested him with the full authority of a

deputy sheriff to enforce the criminal and traffic laws in Jackson

County on its behalf. Wester leveraged this authority as well as

the tools of the Sheriff’s Office—patrol car, lights, uniform, badge,

arrest authority, handcuffs, jail, official paperwork, etc.—to

commit a series of crimes that were only successful because of

Wester’s employment and association with the Office. It vested

governmental authority in Wester to do what he did—to make

traffic stops, conduct vehicle searches, and make arrests that

activated the entire criminal justice system in Jackson County

against his victims—the Sheriff’s Office jailed Wester’s victims as

lawbreakers, the State Attorney’s office prosecuted them, and

courts administered their cases. In other words, Wester, while

“being employed by, [and] associated with [the Sheriff’s Office,]

conduct[ed] or participate[d], directly or indirectly, in [the Sheriff’s

Office] through a pattern of racketeering activity.” § 895.03(3), Fla.

Stat.

Wester contends that the definition of “enterprise” in the

racketeering statute requires additional purposeful bad actors

from the Sheriff’s Office. But Wester duped the Office and criminal

justice system into carrying out his scheme and that, too, qualifies

as racketeering under the statute. I don’t see that a multi-actor,

purposeful complicity requirement exists in the racketeering

26

statute. Again, § 895.03(3) criminalizes the acts of “any person”

employed by and “any enterprise,” who participates in the

enterprise via specific criminal acts. These definitions fit Wester’s

crimes, insofar as he leveraged Sheriff’s Office authority and the

county criminal justice system against his victims. The statute

says nothing of others in the Sheriff’s Office having to be

purposefully complicit before Wester can be prosecuted for

racketeering.

Several similar federal racketeering cases confirm that law

enforcement agencies can be considered “enterprises” in contexts

like this one. See Gross, 765 So. 2d at 42–43 (noting that “Florida

courts have looked to the federal courts for guidance in construing

RICO provisions”). In United States v. Ruiz, 905 F.2d 499, 501 (1st

Cir. 1990), for example, an officer and co-defendant obtained

cocaine from drug traffickers in return for allowing them to deal

drugs. After a racketeering conviction, Officer Ruiz appealed and

argued that his crimes did not show “racketeering activity”

because they lacked complicity by the police department-

enterprise. Id. at 504. The federal court disagreed, however,

because Ruiz had successfully employed the authority, tools, and

activities of the police department in furtherance of his crimes:

“Ruiz’s acquisition of cocaine, and his quid pro quo conduct, were

inextricably intertwined with his authority and activities as an

employee of the [police department] . . . all made possible through,

or facilitated by, his employment.” Id. As in Wester’s case, “Ruiz

had set up shop and was engaged in a regular way of doing illicit

business under the aegis of the enterprise.” Id. at 505.

Perhaps the closest case on the facts to this one is United

States. v. Shamah, 624 F.3d 449, 451 (7th Cir. 2010). Shamah was

a police officer who stole money and drugs from drug dealers and

then planted the drugs on individuals during subsequent stops. Id.

at 452. After a jury convicted Shamah of racketeering, he argued

on appeal that his conviction must be reversed because police

department management wasn’t involved with his crimes. Id. In

affirming Shamah’s conviction, the Seventh Circuit noted that the

federal RICO act encompasses situations where a police

department is operating normally and lawfully but is used by an

officer-criminal to further criminal activities. Id. at 455. Similar to

Wester, Shamah had great deal of responsibility to operate and

27

direct police department affairs on the street. Id. He manipulated

this power “to transform[] legitimate police functions into arms of

his illegal endeavors. He usurped the department’s identity and

turned it into a criminal enterprise hiding behind a facade of

justice.” Id. Thus, the Seventh Circuit concluded that Shamah had

acted in concert with the police department via his authority to

operate and manage “integral duties of the police department’s

daily affairs” in furtherance of his scheme. Id. See also United

States v. Welch, 656 F.2d 1039, 1061 (5th Cir. 1981) (noting that

the phrase “through a pattern of racketeering activity” doesn’t

require the enterprise to benefit from the racketeering activities

but only for there to be “a relation between the predicate crime and

the affairs of the enterprise”).

In this case, as in these federal cases, Wester’s prosecution

showed a definitive nexus between the defendant, the enterprise,

and the pattern of racketeering activity. Indeed, Wester could only

have pulled off his crimes by employing the authority and tools of

the Sheriff’s Office. As a deputy sheriff, Wester exercised his

authority to direct and control the department’s affairs and to

channel its authority by making traffic stops, arresting his victims,

and causing them to be charged and prosecuted for phantom

crimes. As in Shamah, “[h]e usurped the department’s identity,

and turned it into a criminal enterprise hiding behind a facade of

justice.” 624 F.3d at 455.

Because Florida’s RICO Act expressly applies to “any person”

who did what Wester did via the Sheriff’s Office enterprise, I would

affirm Wester’s racketeering conviction.

_____________________________

Michael Ufferman, Michael Ufferman Law Firm, P.A.,

Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Daren L. Shippy, Assistant

Attorney General, Tallahassee, for Appellee.

28