United States of America, Plaintiff-appellee, v. Jose Gonzalez, Roberto Gonzalez, Jorge Luis Fonte, Manualrodriguez A/k/a Manny, Defendants-appellants, 21 F.3d 1045 (11th Cir. 1994)

Defendant-appellants were convicted on many narcotics violations and Racketeer Influenced and Corrupt Organizations (RICO) conspiracy in violation of 18 U.S.C. § 1962(d).¹  They allege several errors occurred at trial. Only two deserve discussion.²  In this case we consider whether, under Florida law, police use of handcuffs on a victim while committing a larceny makes the act a robbery for purposes of 18 U.S.C. § 1961(1) (A). We also decide whether the heightened evidentiary requirements imposed on the use of "net worth" or "cash expenditure analysis" evidence in tax evasion cases apply when such testimony is used to corroborate other evidence in a drug case.

Defendants were part of a scheme, organized around the Metro-Dade County Police Department (Metro-Dade), to steal drugs and money from drug dealers. The convicted co-conspirators were present or former Metro-Dade police officers; two worked in the Department's organized crime bureau. Through their contacts they were able to find out about or to organize drug transactions. Then, they would use their police authority to bust the transactions and to confiscate the money and drugs that was changing hands. They later sold the seized contraband and split the proceeds. These practices formed the basis for the RICO conspiracy Count.³ 

Two aspects of the case concern us now. First, defendant Fonte was only charged personally with predicate acts 7(c) and 10. Both of these acts charged robbery. He claims the events on which these allegations were based constituted a larceny. A robbery is a "racketeering activity" for purposes of federal RICO, but a larceny is not. See 18 U.S.C. § 1961(1) (A). So, Fonte says he is not chargeable personally with predicate offenses and his conviction must be reversed.

Second, the government closed its case with testimony from witness Andrew Bennett on defendants Roberto and Jose Gonzalez' net worth. Defendants contend the district court erred in denying their motions to exclude and to strike Bennett's testimony and in refusing the defendants' requested jury instruction on the issue. They argued that the government should be required to adhere to the strict evidentiary requirements imposed on this kind of evidence in tax evasion cases. We address these contentions in turn.

To qualify as a predicate act for purposes of federal RICO, an act must be a "racketeering activity" as defined by state law. 18 U.S.C. § 1961(1) (A). Larceny is not a racketeering activity, but robbery is. Under Florida law, robbery is a taking by "force, violence, assault, or putting in fear." Fla.Stat. ch. 812.13 (1992).⁴  No force is involved in a larceny. The Florida Supreme Court has said that, because the threat of police action alone does not constitute force, a taking contemporaneous with such a threat is no robbery. Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922); Dixon v. State, 506 So. 2d 55, 57 (Fla.Dist.Ct.App.1987). Fonte argues the two predicate acts with which he was charged merely involved threats of police action and were larcenies. So, he claims his conviction should be reversed.⁵ 

During the events underlying acts 7(c) and 10, Fonte or his co-conspirators restrained with handcuffs their victims and detained the victims in the back of police cars. These physical acts against persons go beyond just an "express or implied threat of arrest or other police action". Dixon, 506 So. 2d at 57 (threat to reveal wrong doing is not force or intimidation for robbery). These acts are sufficient to satisfy the force element of robbery. See Montsdoca, 93 So. at 159. Defendants did use physical force to steal drugs and demonstrated their desire to create fear to get the dealers to part with their goods. The acts were properly considered predicate acts for purposes of RICO. Fonte's conviction is affirmed.⁶ 

Andrew Bennett is employed by Metro-Dade County as an audit manager in the Department of Internal Auditing. At trial, he testified about the Gonzalez brothers' net worth and the results of a "cash expenditure analysis".⁷  His testimony was based on his review of the brothers' abundant financial records and was admitted under Federal Rule of Evidence 1006 as summary testimony of voluminous evidence. It was offered to corroborate evidence of the Gonzalez' unexplained income.

While defendants concede the trial judge has broad discretion to admit this kind of evidence, they invoke Holland v. United States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954) and claim Bennett's testimony should have been subject to the same rigorous evidentiary requirements that such "net worth" evidence is subject to in tax evasion cases.⁸  We disagree and decline to extend Holland to prosecutions like this one.

The government commonly uses "net worth" or "cash expenditure analysis" evidence in tax evasion cases. And it is true that when it does, it must meet strict evidentiary requirements. But, unlike tax evasion cases, the circumstances of a drug prosecution do not compel the application of these standards. In tax cases, net worth proof is the crucial--and often the only--evidence available to prove wrongdoing. It goes to an element of the offense and triggers a conclusive inference of guilt. So, high restrictions on its admissibility are warranted.⁹ 

But in this case, the evidence was corroborative only. Strict evidentiary conditions are not necessary to protect the defendants' due process rights. Any shortcomings in Bennett's testimony went to its weight, not its admissibility.¹⁰  The district court did not abuse its discretion. The district court properly concluded that the credibility of Bennett's testimony, weighed against the significant rebuttal evidence offered by appellants, was for the jury.

AFFIRMED.