Masonoff v. StateMasonoff v. State
Mr. Masonoff appeals his conviction and twelve-year sentence for participating, as an employee or associate, in an enterprise involved in racketeering activity under Florida‘s Racketeer Influenced and Corrupt Organization Act (RICO). Ch. 895, Fla. Stat. (1987). Recognizing that this decision conflicts with State v. Bowen, 413 So.2d 798 (Fla. 1st DCA 1982), review denied, 424 So.2d 760 (Fla. 1983), we reverse the judgment and hold that a sole proprietor cannot violate
Mr. Masonoff was in the business of leasing automobile telephones. He had a checking account with checks in the name of “Vincent P. Masonoff, d/b/a Communication Connection.” In January 1988, Mr. Masonoff issued thirteen worthless checks in amounts ranging from $55.00 to $316.50 on the above-described bank account. These worthless checks totaled $2,031.29. The address and telephone number on the checks were Mr. Masonoff‘s home address and home telephone number. Other than himself, Mr. Masonoff‘s sole proprietorship had no employees or associates.
On March 15, 1988, the state filed an information against Mr. Masonoff containing seven misdemeanor counts for obtaining property in return for worthless checks, six felony counts for obtaining property in return for worthless checks, a grand theft count, and a RICO count under
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.
The definition of “racketeering activity” is lengthy and clearly includes the issuance of worthless checks.
[A]ny individual, sole proprietorship ... or other legal entity ... 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.
It is clear that Mr. Masonoff‘s sole proprietorship may be an “enterprise” for purposes
In Bowen, the First District held that an individual engaged in what appears to be a one-person sole proprietorship could violate RICO by multiple dealings in stolen property. That court based its decision on a “review of the history of the Act and of the statutory language.” Bowen, 413 So.2d at 799. Primarily, that court relied upon the observation that
The violation requires “any person” to conduct or participate in “such enterprise” through a pattern of racketeering activity while that person is employed by or associated with the same enterprise. The statute clearly implies that “any person” must be a sufficiently separate entity from the “enterprise” to permit an employer/employee relationship or some other association. If solo crimes by a self-employed person violated
In State v. Nishi, 521 So.2d 252 (Fla. 3d DCA), review denied, 531 So.2d 1355 (Fla. 1988), the defendant had committed multiple robberies in the span of a single week. Relying upon several federal cases under the similar federal Act, the Third District held that the defendant could not be employed by or associate with himself, as an enterprise, for purposes of RICO. This court has followed the Nishi analysis in two cases involving robbery. State v. Smith, 532 So.2d 1112 (Fla. 2d DCA 1988), review denied, 542 So.2d 990 (Fla. 1989); Day v. State, 541 So.2d 1202 (Fla. 2d DCA 1988).
Arguably, the robberies involved in Nishi and our earlier cases are distinguishable from the issuance of these worthless checks because the name of the sole proprietorship on the checks may have misled the payee and made it easier for the defendant to commit the crimes. The issue, however, is not whether the public was misled by the apparent involvement of a business entity, but whether there was in fact another entity sufficiently separate from the defendant so that the defendant can be described fairly as having been employed by or associated with the sole proprietorship.
In Bowen, the sole proprietor had rented a place of business. The fact that a sole proprietorship has a separate address or telephone number does not, from our perspective, create an organization which is sufficiently separate from the sole proprietor to authorize a violation of
The federal RICO statute does not list a sole proprietorship within its definition of enterprise.
There would be a problem if the sole proprietorship were strictly a one-man show. If Suter had no employees or other associates and simply did business under the name of the National Investment Publishing Company, it could hardly be said that he was associating with an enterprise called the National Investment Publishing Company; you cannot associate with yourself, any more than
you can conspire with yourself, just by giving yourself a nom de guerre.
In United States v. Benny, 786 F.2d 1410 (9th Cir.1986), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986), the Ninth Circuit adopted the Seventh Circuit‘s analysis in a case which also involved a sole proprietorship with several employees. That court stated:
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 discourage and punish illegal activity associated with various groups.
We adopt the Seventh Circuit‘s analysis as an appropriate rule for interpretation of Florida‘s RICO Act. Since this case lacks an enterprise sufficiently separate from Mr. Masonoff, the trial court erred in refusing to dismiss the count filed under
We reverse the judgment and sentence on the RICO count and remand this case to the trial court for resentencing on the remaining counts. On remand, the trial court should also apportion the restitution between the victims as appropriate. See Anderson v. State, 502 So.2d 1288 (Fla. 2d DCA 1987).
Reversed and remanded.
SCHOONOVER, A.C.J., and HALL, J., concur.