KARIM GHANEM, vs. Petitioner, STATE OF FLORIDA, Respondent. / IN THE SUPREME COURT OF FLORIDA CASE NO. SC05-1860 Lower Tribunal No: 4D03-743 AMENDED BRIEF IN SUPPORT OF JURISDICTION [PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEALS OF FLORIDA FOURTH DISTRICT] FRED HADDAD, P.A. One Financial Plaza Suite 2612 Fort Lauderdale, Florida 33394 Tel: (954) 467-6767 Fax: (954) 467-3599
TABLE OF CONTENTS Table of Authorities...ii Statement of the Case and Facts...1 Argument...5 Summary of the Argument...9 Jurisdiction...9 Conclusion...9 Certificate of Typeface...9 Certificate of Service... 10 Certificate of Compliance... 10 i
TABLE OF AUTHORITIES Blakely v. Washington, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)...8 Boca Burger Inc., v. Forum, 30 FLW S.539 (Fla. 2005)... 8,9 Calabrese v. State, 886 So.2d 396 (1 Fla. DCA 2004)...6 Gross v. State, 765 So.2d 39 (Fla. 2000)...3,6,7,8 Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239 (1946)...5 Savoie v. State, 422 So.2d 308 (Fla. 1982)...8 U.S. v. Elliott, 571 F.2d 880, 884 (5 th Cir. 1978)...4 ii
STATEMENT OF THE CASE AND FACTS Karim Ghanem was convicted, after a jury trial, of various offenses, including violating the Florida Racketeering and Corrupt Organizations Act. following: The Information filed against the Petitioner, inter alia, alleged the MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney, charges that KARIM A. GHANEM, also known as ABDUL KARIM GHANEM and MICHAEL H. GHANEM, also known as MOHAMED HUSSEIN GHANEM and ABBAS GHANEM, also known as ABOJO GHANEM and MOHAMED ALI GHANEM, also known as Mike and Hamody and MOHAMAD HAMZE and JEFFREY EGLER and DARRELL HOLMES and ROBERT ZENO beginning from an unknown date but as early as the 20 th day of November, A.D. 1992, continuing up to and including the 28 th day of December, A.D. 1995, in the County and State aforesaid and elsewhere, being persons employed by or associated with an ENTERPRISE as defined by F.S. 895.02(3)... And, the State alleged, and put the Petitioner on notice that: More specifically, said ENTERPRISE consists of the above named individuals, corporations and other persons both known and unknown to the undersigned Assistant State Attorney, who function as either an owner, partner, manager, employee, or agent of Foreign Cars Unlimited, Inc. located at 176 SW 14 th Court, Deerfield Beach,
Florida and Foreign Cars Continental, Inc. located at 70 SW 10 th Street, Deerfield Beach, Florida. For purposed of brevity, the said ENTERPRISE will be referred to as THE GHANEM ENTERPRISE, and all of the above-named defendants did unlawfully and knowingly conduct or participate directly or indirectly in said THE GHANEM ENTERPRISE through a pattern of racketeering activity as defined by F.S. 895.03(3) and F.S. 895.02(4), in that they engaged in two or more incidents of racketeering conduct that had the same or similar intents, results, accomplices, victims, or methods of commission, or were otherwise interrelated by distinguished characteristics and were not isolated incidents. [Emphasis supplied]. The Information then set forth thirty two (32) acts of Racketeering. The first fourteen (14) acts involved Michael Ghanem, his employees, his shop, Foreign Cars Continental, and some of the insurance agents. The remaining acts were against Petitioner, except that where papers were found in Michael s house or shop, it was alleged Michael participated in the Racketeering Acts of his brother Karim, ie, it was alleged Michael Ghanem and his shop were some how involved in the acts regarding the undercover vehicles [Racketeering Acts 24, 27 and 28] which of course had no evidential support. Indeed there was no evidence to suggest that either Michael or Petitioner ever participated in the other s crimes in any way, and in fact testimonial evidence established otherwise.
The evidence, for two months of trial, detailed all of the Petitioner s supposed thefts, bribes, cheats and other manners of allegedly ripping off the insurance companies with paid off adjusters. Whatever he may have done, it was argued that there was certainly not one word of evidence at trial that Michael Ghanem or Foreign Cars Continental was part of Karim s charged criminality and that the State failed to prove the Enterprise alleged. While both Ghanems and their respective companies may have engaged in illegal activity, the State singularly failed to prove that they were joined or to remotely prove an enterprise. The Fourth District Court of Appeals on 6 July 2005, issued an opinion [Appendix A] affirming the conviction addressing solely the RICO issue, relying on this Court s holding in Gross v. State, 765 So.2d 39 (Fla. 2000). stating: The Petitioner filed a Petition for Rehearing or Rehearing En Banc 2. The panel held that the following should be the decision of the Court: Appellant s argument that the trial court should have granted a judgment of acquittal on the RICO claim is grounded on the assumption that the state had to prove that the enterprise or association included both appellant and his brother Michael,
who ran a different shop, which engaged in the same type of fraud. Although the state did put on evidence as to the relationship between both shops, we disagree that the RICO enterprise had to include both shops. U.S. v. Elliott, 571 F.2d 880, 884 (5 th Cir. 1978), relied on by the supreme court in Gross, makes it clear that a single creature can fall within RICO. 3. What this Court must have overlooked or failed to consider is that the charging document alleged that the enterprise consisted of Michael Ghanem and the Appellant: More specifically, said ENTERPRISE consists of the above named individuals, corporations and other persons both known and unknown to the undersigned Assistant State Attorney, who function as either an owner, partner, manager, employee, or agent of Foreign Cars Unlimited, Inc. located at 176 SW 14 TH Court, Deerfield Beach, Florida and Foreign Cars Continental, Inc. located at 70 SW 10 th Street, Deerfield Beach, Florida. For purposed of brevity, the said ENTERPRISE will be referred to as THE GHANEM ENTERPRISE, and all of the above-named defendants did unlawfully and knowingly conduct or participate directly or indirectly in said THE GHANEM ENTERPRISE through a pattern of racketeering activity as defined by F.S. 895.03(3) and F.S. 895.02(4), in that they engaged in two or more incidents of racketeering conduct that had the same or similar intents, results, accomplices, victims, or methods of commission, or were otherwise interrelated by distinguished characteristics and were not isolated incidents. [Emphasis supplied]. 4. Thus, it is submitted, the Court s suggestion that the RICO enterprise did not have to include
what was alleged as the very enterprise is singularly misplaced. It would be the same as alleging one conspiracy and proving another [Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239 (1946)] or failing to prove what alleged, or allowing different proof. The Appeals Court, on 21 September 2005, withdrew its previous opinion and replaced it with a new opinion [Appendix B] and added the following paragraph: The information charged appellant, his brother, and nine other individuals, who either worked in the shops or were employed as adjusters by insurers, as engaging in the RICO enterprise. Appellant has cited no authority to support his argument that the failure of the evidence to show that one of the eleven named in the information was involved in the RICO enterprise in which appellant was participating requires a judgment of acquittal. In this case the evidence showed that appellant was operating a repair shop which, on a regular basis, worked with insurance company employees to defraud insurers by preparing and submitting invoices for work which was unnecessary or not performed. This was sufficient to satisfy the enterprise requirement of our RICO statute. ARGUMENT It need be remembered that the Enterprise was alleged to consist of individuals who were employees, managers, partners, owners of Foreign Cars Continental and Foreign Cars Unlimited, or as it was known the Ghanem Enterprise.
The Appeals Court wrote that the failure to show Michael and Foreign Car Continental s involvement in the Enterprise does not provide for acquittal, and that no authority for that preposition was presented. However, the Petitioner cited to Calabrese v. State, 886 So.2d 396 (1 Fla. DCA 2004), which stated: Appellant asserts that the instruction given on criminal conspiracy is erroneous in stating: "In order to carry out the intent, [Appellant] agreed, conspired, combined, or confederated with Karim Rauf to cause the purchase of 28 grams or more of cocaine to be committed, either by... them or one of them or by some other person." (Emphasis added). Specifically, Appellant argues that the use of the word "or" constitutes fundamental error. Given the record evidence that the conspiracy to purchase, if any, involved only Rauf and Appellant, there is no basis for instructing the jury that it could find Appellant conspired with Rauf to purchase 28 grams or more of cocaine, with the purchase to be committed "by some other person." Thus, the proof must equal the charges. The failure to prove the RICO alleged does not allow for conviction because some part of the enterprise was proven. The Information specifically alleged Foreign Cars Unlimited and Foreign Cars Continental and that failure of proof defeated the enterprise alleged, compelling the granting of a judgment of acquittal. The Appeals Court s reliance on Gross is not applicable to the issue raised other than to be in conflict therewith, because no matter the definition
of Enterprise, it is still the fact that an enterprise must be alleged and proven. Indeed, this Court in Gross stated the following, which respectfully, was overlooked, or not considered by the Fourth District: The U.S. Supreme Court has carefully distinguished the "enterprise" element from the "pattern of racketeering activity" element and emphasized that the enterprise element has a separate and distinct meaning that must be proven by the government: 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.
It is submitted the Appeals Court has conceded the enterprise was not proven, but held that since a pattern of racketeering activity was proven all elements were satisfied. This creates conflict with Gross, supra, and all established RICO law. The Petitioner also received a departure sentence which, it is alleged, egregiously violated Blakely v. Washington, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and which the Appeals Court did not address; if this Court grants Certiorari, it should review that also [Savoie v. State, 422 So.2d 308 (Fla. 1982), quoted in Boca Burger Inc., v. Forum, 30 FLW S.539 (Fla. 2005)].
SUMMARY OF THE ARGUMENT Petitioner will argue that based on the above, the Court should find jurisdiction to issue its Writ to the Fourth District Court of Appeals to review the decision herein. JURISDICTION This Court s jurisdiction to review decisions that conflict with this Court s decision or the decisions of the other several Courts of Appeal is found in the Constitution of the State of Florida, Article V 3(b)(3) and Florida Appellate Rules, more particularly FRAP 9.030(a)(2). The case law also provides for review on conflict issues, Boca Burger Inc., v. Forum, supra. CONCLUSION For this and for all of the foregoing the Court should accept jurisdiction of the issue and issue its writ to review the decision of the District Court of Appeals, Fourth District. CERTIFICATE OF TYPEFACE Counsel for the Appellant hereby certifies, in accordance with Rule 9.210, Florida Rules of Appellate Procedure, that the instant Brief has been typed using Times New Roman 14pt.
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail to the Office of the Attorney General, 1655 Palm Beach Lakes Blvd, West Palm Beach, Florida 33401-2299 and to the Office of the Attorney General, The Capitol, PL-01, Tallahassee, Florida 32301, this 9 th day of November, 2005. FRED HADDAD, P.A. One Financial Plaza, Suite 2612 Fort Lauderdale, Florida 33394 Tel: (954) 467-6767 Fax: (954) 467-3599 By: FRED HADDAD Florida Bar No. 180891 CERTIFICATE OF COMPLIANCE Counsel for the Appellant hereby certifies, in accordance with Rule 9.210, Florida Rules of Appellate Procedure, that the instant Brief has been typed using Times New Roman 14pt. By: FRED HADDAD Florida Bar No. 180891