STATE OF NEW JERSEY v. BERNICE KIRKLAND MOTLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2270-03T2

A-0406-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BERNICE KIRKLAND MOTLEY,

Defendant-Appellant.

______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY KIRKLAND,

Defendant-Appellant.

______________________________

 

Submitted March 7, 2006 - Decided

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-05-0069-S.

Craig R. Mitnick, attorney for appellant Bernice Kirkland Motley (Mr. Mitnick and William A. Riback, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant Anthony Kirkland (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Robert E. Bonpietro, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a bench trial, Defendant, Anthony Kirkland, was convicted of conspiracy to commit racketeering, N.J.S.A. 2C:5-2, N.J.S.A. 2C:41-2d; racketeering, N.J.S.A. 2C:41-2c; two counts of money laundering, N.J.S.A. 2C:21-25b, N.J.S.A. 2C:2-6; promoting prostitution, N.J.S.A. 2C:34-1b(2), N.J.S.A. 2C:2-6; two counts of theft by deception, N.J.S.A. 2C:20-4, N.J.S.A. 2C:2-6; conspiracy, N.J.S.A. 2C:21-25, N.J.S.A. 2C:2-6; and falsifying record, N.J.S.A. 2C:21-4(b), N.J.S.A. 2C:2-6. He was sentenced to an aggregate term of thirty-seven years in prison with seven and one-half years of parole ineligibility. His mother, Bernice Kirkland Motley, who also waived her right to a jury trial, was convicted of conspiracy, N.J.S.A. 2C:21-25, N.J.S.A. 2C:5-2; theft by deception, N.J.S.A. 2C:20-4, N.J.S.A. 2C:2-6; and money laundering, N.J.S.A. 2C:21-25b, N.J.S.A. 2C:2-6. After merger of the conspiracy count, she received two consecutive seven-year sentences with a recommendation that she be admitted to the Intensive Supervision Program.

I

The trial record supports the following factual findings. Defendant Anthony Kirkland was a pimp. He operated a prostitution business which, over a period of eleven years, involved between thirty-five and forty prostitutes, working in Atlantic City, New York, Washington, D.C., Honolulu, Philadelphia, Boston and Las Vegas, as well as at truck stops in New Jersey. It was his practice to lure young girls into prostitution with promises of affection and affluence, and to coerce them to continue working for him. When threats were insufficient to accomplish this purpose, he administered vicious beatings, using extension cords, coat hangers, baseball bats and other implements. He had between three and six prostitutes working for him at any one time. They earned between $200 and $2,000 per night. He permitted them to keep $20 per day for transportation expenses and food.

Anthony's wife, Christina Kirkland, testified that he lured her into prostitution, starting in 1990 when she was seventeen. She worked for him for eleven years, during which time he frequently beat her with electrical cords and other objects. He broke her ribs, and broke her arm at least twice. And he forced her to return to prostitution within days after she gave birth to each of their two children. She also witnessed the brutal beatings Anthony administered to other prostitutes who either tried to leave him or violated one of the many strict rules of his organization.

In 1995, Christina became defendant's "bottom bitch" or supervising prostitute, taking over that role from another prostitute, Vanessa Riera. As described by Christina:

Bottom bitch is the girl that has been . . . with the pimp throughout the time that does what she's told when she's told. She takes the girls to work, she takes the money from the girls and gives it to the pimp which would be Anthony, she teaches [the new prostitutes] how to dress . . . what to say, how to stand. Basically, how to . . . use a condom. How much to charge, makeup, where to stand, police, the games of the road. She teaches what he cannot teach . . . such as when he cannot sit there on the street and actually catch the date. So, she fills in certain things that Tony can't do, what a pimp can't do.

In addition to supervising Anthony's prostitutes in one location at a time, at Anthony's direction Christina also would fly "back and forth" between New York and Las Vegas "so I could keep an eye on [the business in] New York and work Las Vegas, both states."

She testified that Anthony leased or purchased dozens of expensive cars for his personal use and for use in the prostitution business. He also purchased a tractor-trailer that was eventually used by Anthony and another pimp, Johnny Gibson (also known as "Preach"), to transport prostitutes to truck stops where they plied their trade. Gibson and several of his prostitutes lived with Anthony at defendant's house at 62 Rosalind Circle in Sicklerville.

All of the vehicles that Anthony bought or leased himself were obtained by falsely representing to the financing companies that Anthony lived in a rented house at 180 Breckinridge Avenue in Sicklerville, and that he earned a high salary from a job at Total Concepts, Inc. In fact, Total Concepts was a shell corporation set up by Anthony with the assistance of his accountant, Harry Murray, to create the fiction that Anthony was legitimately employed and to hide his illicit income. For that purpose, Murray also created false W-2 forms and other false financial documents for Anthony. As Christina testified, Murray "gave us our fake W- 2 Forms and 1040's we needed to buy cars and houses and paycheck stubs." All of those houses and cars were actually paid for with money from prostitution. Murray's testimony confirmed this arrangement. He also testified that at defendant's request, he created bogus pay stubs for Johnny Gibson, to document for Gibson's parole officer that Gibson was allegedly employed by Total Concepts.

Anthony's mother, Bernice Motley, who worked for a bank, advised Anthony on how to manage his money so as not to send up "red flags" to the banks in which it was deposited or to the Internal Revenue Service. She bought a house for him at 62 Rosalind Circle, Sicklerville, falsely representing to the mortgagee bank that she and her husband would live in the house and would rent their house at 180 Breckinridge Avenue to Anthony and his wife. Anthony never lived at the Breckinridge Avenue house, but Bernice's fabrications enabled him to falsely claim to be renting that house when he applied for financing for his fleet of cars. The down-payment and all of the mortgage and utility payments for the Rosalind Circle house came from his prostitution business. Christina testified that she "or one of the other prostitutes would . . . go over and hand [the money] to Bernice at 180 Breckinridge" and Bernice in turn would make the payments.

Bernice later planned and carried out the refinancing of the mortgage on the Rosalind Circle house. She supported the refinancing application by using a false lease listing non-existent tenants to demonstrate a source of income from the Breckinridge house. She also allowed Anthony to funnel money through her credit card account in order to pay for improvements to the Rosalind Circle house, and she used prostitution money, supplied by Anthony, to buy cars for his prostitutes. Bernice also accepted large amounts of cash from Anthony and hid it for him in a shoebox in her closet.

In return, with proceeds from his illegal activities, Anthony provided Bernice with money and expensive gifts such as fur coats, jewelry, and a Mercedes Benz automobile. Christina testified that Bernice asked for and received funds for herself ("'Mommy needs extra spending money'") in addition to the mortgage payments. According to Christina, Anthony also gave Bernice money to buy a house at 53 Briarcliff, to serve as a residence for Anthony and several of his prostitutes. Some time later, the sale of that house helped finance the Rosalind Circle home; Bernice also kept a portion of the proceeds.

Christina testified that Bernice was well aware that Anthony made his living from prostitution. She testified to conversations with Bernice in which Bernice referred to "both her sons, Anthony and James Harris, as pimps and us girls as prostitutes." A March 2001 letter from Bernice to Anthony expressed her hope that he would get out of "the game," (a street term for pimping) and find a legitimate job. Christina also identified a series of pictures of Bernice with Anthony, another pimp, and several prostitutes. The pictures were part of an album Anthony directed Christina to put together, and featured photos in which he and a fellow pimp showed off their wealth and their prostitutes (whom they called "bitches," "joints" or "ho's"). For example, Christina described a photograph of Bernice with a prostitute and a pimp:

Q: And who is the woman in the picture?

A. Bernice.

Q: And what is the pimp doing in

the picture?

A: Flashing a credit card over Bernice.

In addition to purchasing a house in New Jersey, Anthony used prostitution money to buy a house in Nevada. He used that house to provide a residence for prostitutes who worked for him, as well as a residence for Johnny Gibson and one of his prostitutes. Another pimp, known as Trey, also lived there because "he was watching the house for Tony."

Theofani Staikopolous, a prostitute who had worked for Anthony since she was sixteen, testified that defendant sent her to Las Vegas to teach one of his less-experienced prostitutes how to find customers and avoid the police. She also testified that defendant directed her to work for an escort service in Atlantic City. The service would send her customers and keep fifty percent of the payment. The other fifty percent would go to the prostitute, who would turn it over to Anthony. She also testified that she used money from prostitution to make payments on some of defendant's vehicles. She confirmed that Bernice hid money for Anthony, and she corroborated Christina's testimony that defendant enforced strict rules and beat and intimidated the prostitutes who worked for him.

Another prostitute, Serand Husenaj, likewise testified that Bernice received money from both Anthony and Christina, and that Bernice saw Serand giving Tony the proceeds from her weekends' work as a prostitute. She also described the supervisory role of the "bottom bitch": "When [Anthony's] not around, she has authority."

Anthony did not testify at trial and he presented no witnesses. As Anthony's brief indicates, his "trial attorney conceded in his opening statement that defendant was guilty of promoting prostitution, theft by deception, and falsifying records." He also conceded Anthony's guilt on those counts in summation. Anthony's defense to the remaining counts was that he "was not guilty of racketeering because the prostitution business he was running was a one-man operation and hence, was not an `enterprise' within the meaning of the racketeering statute."

Bernice's defense consisted of her testimony and that of a series of character witnesses. She claimed she did not realize it was wrong to misrepresent to the bank that she would be living in the Rosalind Circle house. She admitted falsely claiming on the refinancing application that she was renting out 180 Breckinridge Drive for $1,250 per month. She also admitted that she gave the bank a copy of a bogus lease, listing non-existent tenants, to support the application. She admitted that Anthony gave her the money for the monthly mortgage payments on the Rosalind Circle house and money to reimburse her for purchases she made for him using her credit cards. But she denied knowing that the money Anthony gave her came from prostitution.

She claimed that, during the time she was purchasing a house and vehicles for Anthony in her name, she did not know that her son was engaged in promoting prostitution. But she admitted writing Anthony a letter in March 1998 in which she stated, "'I cringe when somebody asks me what my sons do or their wives because I do not like to lie.'" She also denied that she knowingly participated in Anthony's business or that she provided him with any advice or assistance.

II

On June 10, 2003, the trial judge rendered a sixty-one page oral opinion setting forth in detail his findings of fact, credibility determinations and legal conclusions. He found that Anthony conducted a criminal enterprise in which he lured young girls into prostitution and coerced them into continuing to work for him through beatings and threats. He found that Anthony operated the enterprise with the assistance of Bernice, a corrupt accountant, and prostitutes who helped him supervise the street operation. He also concluded that Anthony was guilty of racketeering:

In the Kirkland case before this Court, the quote I just read can be, in effect, repeated verbatim by just changing one word: "Clearly, the repeated criminal acts" and I find that there were literally thousands of acts of prostitution here over many years, "were related by having the common purpose of furthering the goal of the enterprise which was to make money from prostitution."

This Court finds that all participants to the conspiracy were involved knowingly. The evidence in this regard is compelling and uncontroverted. With the exception of the testimony of Bernice Kirkland Motley, which, as I indicated, will be addressed a little later in this Opinion.

Mr. Baker's argument, as I understand it, and I'm obviously interpreting it in regard to the subject area, seems to be that the business run by Anthony Kirkland was documented in what I will loosely call the organizational chart that is in evidence as DK-1 and confirmed I should indicate as generally setting forth how the prostitution business functioned on average by Christina Kirkland, who was the "bottom bitch" by her own testimony for a period of years is not complex enough.

That's the argument, as I understand it, it's not complex enough and on too small a scale. This argument I find seems to run counter to the statute which sets forth as directed, a specified crime under the phrase racketeering activity.

But, the thrust of the argument seems to be directed to the enterprise element that the statute must prove. The business run by Anthony Kirkland was not particularly complex, but it involved obviously as documented, thousands of individual acts of prostitution on a regular basis over a period of many years and generated by this Court's estimate conservatively at several millions of dollars over an extended number of years, provided as indicated already 30 to 35 women over a period of time and for different lengths of time involved soliciting in various cases teenage girls because they were per Christina Kirkland's testimony of Anthony Kirkland's m.o., and I think everybody understood what I meant by "m.o.", method of operation.

She testified that his approach was to try and recruit young girls, and I know [there] was testimony that that may even pertain to Christina, were recruited around age sixteen or seventeen. She indicated that this was Mr. Kirkland's approach because he found young women were easier to manipulate and control at that stage of their lives.

We have numerous regular incidents of money laundering by investment of prostitution generated monies in items of real and personal property, numerous regular acts of theft by deception in obtaining real and personal property by submitting falsified documents, and numerous regular acts of violence to keep the prostitutes in line, so to speak.

All of these various acts I've just indicated in a somewhat general sense took place. And the testimony was essentially uncontroverted. And Anthony Kirkland was the operator of the business. Dictator, I find, would be a more appropriate word. He would dictate where, when and how often the prostitutes worked.

The purpose, obviously, was to generate money. And in that photo album I saw, Mr. Kirkland obviously shows a lot of pride in displaying all the money that was generated from the prostitution business, which I find rather sickening. But, that's his approach to things.

So, the purpose was to generate money. This was an evil invidious enterprise run by a man that I find to be essentially sociopathic, controlling, a manipulator who stoops so low as to get his mother involved in the business.

The money generated was used to purchase homes, vehicles, clothing, food and other benefits such as trips for its members in order to deposit cash and hide the cash, make purchases, obtain loans, obtain leases, make payments, obtain false documents. A considerable amount of planning, cooperation and interaction of its members was necessarily required.

A corrupt accountant was employed. False documents were sent to a parole officer in one instance, setting forth that he was an employee of the totally fictitious company known as Total Concepts. So, here is an attempt to bamboozle a state official into thinking that this individual was employed by Total Concepts.

I think it was Miss Mayer who at some point argued Mr. Kirkland's life for many years was a total fraud. This Court totally agrees.

In one of the pictures I saw in the album that I looked at, I believe I saw Mr. Kirkland with a United States Marine Corps shirt on. I heard reference by Counsel during the course of the trial that he was honorably discharged from the service.

A lot of people probably know that the motto of the Marine Corps is [Semper Fidelis] "Always Faithful." Mr. Kirkland truly changed the phrase. His operation was more along the lines of "Always Fraudulent", which is a sad commentary for somebody who previously served our country.

So, again, I'm referring back to the phony corporation, Total Concepts, that was created to further the prostitution business, the cars and the homes purchased and leased and virtually all the other activities were engaged in to perpetuate the criminal enterprise.

I agree with the argument of the State that without a high degree of planning and cooperation between the members, even though it was not a large organization at any given time, the enterprise would not have been as successful as it was in obtaining assets nor would it have continued to do so for such a long period of time without detection by law enforcement.

As previously indicated, the word "enterprise" pursuant to the legislative history in State v. Ball is to be construed broadly. In this Court's opinion it was obviously intended to include illicit businesses such as the one operated by Anthony Kirkland for many years.

As further indicated in Ball, no particular configuration of the enterprise is necessary. This obviously comports with the broad construction intended by our New Jersey Legislature.

The fact that Anthony Kirkland was the only apparent head of the entity with an apparently consistent executive assistant or operations subordinate known as again I'll mention the "bottom bitch" phrase, that's what its known as, according to the testimony in the pimp/prostitution business.

There were an average number of women working, as I think I mentioned before, four, and the fact that it was relatively simple does not take this business form from under the umbrella of the word "enterprise" as used in New Jersey RICO Statutes.

I understand the argument made. I think it was made as well as it could be made and I compliment Counsel in that regard, but I have to reject it for the reasons indicated.

This Court also finds that the conduct of the conspirators in this operation was knowing and purposeful in all instances.

In conclusion under this count, I further say that I cannot accept the interpretation that Mr. Baker argued to the Court because if I did that I think would essentially be putting a narrow and strained interpretation on the word "enterprise" and this was not intended by our Legislature nor was it suggested in any way that I could see in State v. Ball.

So, again, the finding of the Court under this count is guilty beyond a reasonable doubt.

Under Count Two, first degree racketeering, I incorporate by reference the findings made under Count One.

Mr. Kirkland was the operating head of the enterprise which affected trade and commerce. How did it affect trade and commerce? It had its tentacles into the banking field, into the leasing field, into contracts, into mortgages, into real estate transactions, and did so purposely and knowingly through a pattern of racketeering activities.

Repeated acts of documented violence were involved using such devices -- and the testimony is uncontroverted -- as extension cords which it appears [were] Mr. Kirkland's favorite weapon[s] for whipping the prostitutes who got out of line. He also used other devices.

And two of these women got up in open court and bared various parts of their anatomy to the Court to show me the various scars and the results of his physical mistreatment over a period of time. I saw numerous bruises and scars on Christina Kirkland and Theofani Staikopolous in particular right here beside me.

This Court finds from the uncontroverted testimony that the acts of violence were to keep the prostitutes in compliance with the rules laid down by Mr. Kirkland for the operation of his prostitution enterprise. These crimes of violence were involved in the amount of money and property derived for Mr. Kirkland from the enterprise clearly which exceeded $500,000.

He's guilty of a first degree crime as alleged in Count Two.

Count Three, first degree money laundering. The uncontroverted testimony, which I find credible, indicates virtually all of the items set forth in State's Exhibit 750 were obtained as a result of racketeering activities, including prostitution, theft by deception, falsification of records, all of which have been previously commented upon in this Court's findings.

He found Bernice to be a completely incredible witness and rejected "all of her testimony." In finding her guilty of conspiracy, money laundering, and theft by deception, he found that she was well aware of her son's prostitution business and assisted him in laundering money from that enterprise. He found that she fraudulently obtained a mortgage in order to purchase a home for Anthony at 62 Rosalind Circle in Sicklerville and then fraudulently obtained a refinancing on the same property. She falsely represented to the bank that she and her husband were going to live in that home, and falsely represented that they were going to obtain income by renting out their existing home at 180 Breckinridge Drive. But she admitted at trial that "the lease was a fraud . . . involving people whose names were made up."

The judge also found that Bernice knowingly paid the mortgage on the Rosalind Circle home with money from Anthony's prostitution business. She likewise purchased a series of vehicles for Anthony, in her name, using money that she knew came from the prostitution business. He concluded that "virtually all the cash that was going through her account was as a result of prostitution money given to her by either Mr. Kirkland or his wife, Christina." He found that Bernice also forged documents to assist Anthony to obtain a commercial drivers license.

III

On this appeal, Anthony Kirkland raises the following issues:

POINT I: BECAUSE THE RECORD DID NOT ADEQUATELY ESTABLISH THAT DEFENDANT KNOWINGLY AND VOLUNTARILY WAIVED HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL, HIS CONVICTIONS MUST BE VACATED AND THE MATTER REMANDED FOR A NEW TRIAL.

POINT II: BECAUSE DEFENDANT'S PROSTITUTION BUSINESS WAS NOT AN "ENTERPRISE" WITHIN THE MEANING OF THE RICO STATUTE, THE COURT ERRED IN CONVICTING HIM OF RACKETEERING.

POINT III: THE AGGREGATE 37-YEAR TERM IMPOSED UPON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES.

Bernice Kirkland Motley raises the following appellate issues:

POINT I: COUNT SEVEN OF THE INDICTMENT AS RELATES TO "THEFT BY DECEPTION' N.J.S.A. 2C:2-4 MUST BE DISMISSED FOR FAILURE OF PROOFS.

POINT II: COUNT SEVEN, [COUNT] EIGHT AND COUNT NINE MONEY LAUNDERING AND THEFT BY DECEPTION MUST BE REVERSED AND REMANDED BECAUSE IT IS BASED UPON THE PREMISE THAT PROSTITUTION WAS PROVEN TO BE CRIMINAL ACTIVITY, AND UNDER NEVADA LAW, PROSTITUTION, IF PROVEN TO BE ILLEGAL, IS NOT CRIMINAL ACTIVITY AS DEFINED UNDER NEW JERSEY LAW.

A. There was no evidence that Anthony Kirkland was committing Illegal activity in Nevada by engaging In Prostitution.

B. Assuming Arguendo that the State has Provided Any Evidence That the Nevada Prostitution was illegal, The State has still failed to prove, and Can not prove that such conduct was Criminal Activity as Required under New Jersey Law.

Having reviewed the record, including the entire trial transcript, we conclude that all of appellants' arguments are without merit and, except as discussed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm the convictions substantially for the reasons stated in the trial judge's thorough and cogent oral opinion, which is amply supported by the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). And we find no error in Anthony's well-deserved lengthy sentence, cogently explained in the trial judge's written statement of reasons issued on November 17, 2003. State v. Roth, 95 N.J. 334 (1984); State v. Ball, 268 N.J. Super. 72, 145-46 (App. Div. 1993), aff'd on other grounds, 141 N.J. 142 (1995), cert. denied, sub nom., Mocco v. New Jersey, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996). We add the following comments.

We find no merit in Bernice's challenge to her conviction for theft by deception. N.J.S.A. 2C:20-4. She obtained a mortgage on the Rosalind Circle property, and then refinanced the mortgage, through deception and outright fraud; her intent to pay the mortgage is irrelevant. State v. Rodgers, 230 N.J. Super. 593 (App. Div.), certif. denied, 117 N.J. 54 (1989); State v. Krueger, 241 N.J. Super. 244 (App. Div. 1990).

The record likewise contains abundant support for the judge's conclusion that Anthony was running a multi-state criminal enterprise and not a "one-man operation" as Anthony claimed. The Racketeer Influenced Corrupt Organizations Act (RICO), N.J.S.A. 2C:41-2, provides:

It shall be unlawful for any person employed by or associated with any enterprise engaged in or activities of which affect trade or commerce to conduct or participate, directly or indirectly, in the conduct of the enterprise's affairs through a pattern of racketeering activity.

[N.J.S.A. 2C:41-2(c).]

Under RICO, an "enterprise" may be a sole proprietorship:

"Enterprise" includes any individual, sole proprietorship, partnership, corporation, business or charitable trust, association, or other legal entity, any union 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.

[N.J.S.A. 2C:41-1(c).]

The Supreme Court has explained the concept of an "enterprise" as follows:

[U]nder the RICO Act "enterprise" is an element separate from the "pattern of racketeering activity," and . . . the State must prove the existence of both in order to establish a RICO violation. The offenses proscribed in N.J.S.A. 2C:41-2a to -2d include both as elements of the crime. The enterprise is the association, and the pattern of racketeering activity consists of the predicate incidents. Nevertheless, evidence that serves to establish such an enterprise need not be distinct or different from the proof that establishes the

pattern of racketeering activity.
 
We hold, further, that because the enterprise is distinct from the incidents constituting the pattern of activity, it must have an "organization." The organization of an enterprise need not feature an ascertainable structure or a structure with a particular configuration. The hallmark of an enterprise's organization consists rather in those kinds of interactions that become necessary when a group, to accomplish its goal, divides among its members the tasks that are necessary to achieve a common purpose. The division of labor and the separation of functions undertaken by the participants serve as the distinguishing marks of the "enterprise" because when a group does so divide and assemble its labors in order to accomplish its criminal purposes, it must necessarily engage in a high degree of planning, cooperation and coordination, and thus, in effect, constitute itself as an "organization."
 
This understanding of the kind of organization that establishes an "enterprise" is different from, but not necessarily inconsistent with, that understanding of "enterprise" premised on an "ascertainable structure." Thus, evidence showing an ascertainable structure will support the inference that the group engaged in carefully planned and highly coordinated criminal activity, and therefore will support the conclusion that an "enterprise" existed. Apart from an organization's structure as such, however, the focus of the evidence must be on the number of people involved and their knowledge of the objectives of their association, how the participants associated with each other, whether the participants each performed discrete roles in carrying out the scheme, the level of planning involved, how decisions were made, the coordination involved in implementing decisions, and how frequently the group engaged in incidents or committed acts of racketeering activity, and the length of time between them.

[State v. Ball, 141 N.J. 142, 161-63 (1995).]

Anthony operated his well-organized, multi-state business as a kind of sole proprietorship, but he did not act alone. He operated with the assistance of his corrupt accountant, Harry Murray, defendant Bernice who advised him and laundered money for him, the "bottom bitches" who supervised the other prostitutes and channeled money to defendant, the escort services that sent customers to "his" prostitutes, and a fellow pimp named Trey who "watched" the house in Las Vegas for him. Defendant's operation met the definition of an "enterprise" in other respects as well. The prostitutes who testified confirmed that Anthony ran the business according to a strict set of rules they were required to follow. The activities of the organization were coordinated in such detail that the women were required to call Anthony every hour or two, from whichever city they were working in, to report what they were doing and how much money they had made. Further, the organization affected legitimate "trade or commerce," in that its illegitimate proceeds were laundered through Bernice's bank accounts, and mortgages and car leases were obtained through fraud and paid off with money from prostitution. N.J.S.A. 2C:41-2(c). And there is no dispute that the organization engaged in innumerable predicate illegal acts, as defendant required the women to work night and day committing multiple acts of prostitution, even after they had recently given birth. We therefore affirm defendant's conviction under RICO.

We likewise reject Anthony's contention concerning waiver of his right to a jury trial. On March 24, 2003, approximately a month prior to the trial, defendants made an application to waive their right to a trial by jury. Anthony's attorney advised the court that defense counsel and the prosecutor

have discussed this matter on several occasions and I've discussed it with my client. . . We're in agreement, obviously subject to Your Honor's approval - - in having this matter tried without a jury before Your Honor. It's scheduled April 28th and we all thought it would be best if we cleared up that issue now so we could proceed in accordance with Your Honor's decision in this matter.

So I discussed it with Mr. Kirkland and he's prepared to advise Your Honor that he wishes to waive his right to a jury trial and proceed with a bench trial in this matter, and I believe Mr. Miller [Bernice's counsel] is in the same position and [the prosecutor] who also has a position in this matter would concur.

After discussing the impact that a bench trial, as opposed to a jury trial, would have on the length of the trial, the court then addressed both defendants concerning their consent to the waiver:

THE COURT: Okay, All right, let me address both Ms. Motley and Mr. Kirkland. Ms. Motley, you've been sitting here when your attorney made certain representations in regard to this being potentially a non-jury trial which means that I will be the trier of fact in addition to the judge of the law. You heard what was said. Is that your desire, ma'am --

MS. MOTLEY: Yes.

THE COURT: -- that this case be tried non-jury?

MS. MOTLEY: Yes.

THE COURT: Okay. Have you discussed that in detail with your attorney before you made that decision?

MS. MOTLEY: Yes, Your Honor.

THE COURT: Okay. And Mr. Kirkland, same thing, sir. You discussed this with your attorney, is that correct?

MR. KIRKLAND: Yes, I did.

THE COURT: And it is your desire that the case be tried on a non-jury basis if I agree, is that correct?

MR. KIRKLAND: Yes, Your Honor.

THE COURT: Okay, fine. All right, I have -- I'll note for the record that both Mr. Kirkland and Ms. Motley are represented by attorneys who appear in this courtroom on a regular basis. They are very experienced. So I accept their representations and I accept that there is a concurrence, if you will, between counsel and client in that regard. And I have no trouble trying the case on a non-jury basis. So that's the decision of the Court.

We agree with defendant's contention that the jury waiver should have been reduced to writing:

Criminal actions required to be tried by a jury shall be so tried unless the defendant, in writing and with the approval of the court . . . waives a jury trial.

[R. 1:8-1(a).]

But this requirement is not jurisdictional. State v. Paolino, 110 N.J. Super. 284, 285 (App. Div.), certif. denied, 57 N.J. 127 (1970). The critical requirement is that defendant provide an express, knowing and intelligent waiver in open court. Id. at 285-86; State v. Jackson, 272 N.J. Super. 543, 550 (App. Div. 1994), certif. denied, 142 N.J. 450 (1995). The requirement of knowing and intelligent waiver is a well-established principle of constitutional magnitude. Patton v. United States, 281 U.S. 276, 312, 50 S. Ct. 253, 263, 74 L. Ed. 854, 870 (1930).

But whether a waiver is knowing depends on the totality of the circumstances, State v. Mazza, 330 N.J. Super. 467, 471 (App. Div. 2000), including whether a defendant is represented by counsel, State v. Jackson, supra, 272 N.J. Super. at 550, and whether the waiver follows a "discussion between the trial court and defendant concerning an express and understanding waiver of his right to a jury trial or . . . an express and understanding assent to any waiver of that right by his attorney." State v. Wyman, 232 N.J. Super. 565, 568 (App. Div. 1989).

In Jackson, a case in which defendant signed a written waiver, we noted that if the waiver is in writing, there is a presumption that it was voluntary, knowing and intelligent. Jackson, supra, 272 N.J. Super. at 551. We further noted that defendant had the burden of showing that the waiver was not voluntary and intelligent. Ibid. And there we also noted that defendant presented no evidence to support his claim that the waiver was "other than a knowing and intelligent decision made by him with advice of counsel." Ibid. Our decision to reject his contentions also rested on the gap of over a month between the waiver and the trial, during which time defendant could have moved to retract the waiver if he had "any second thoughts." Ibid.

In State v. Dunne, 124 N.J. 303 (1991), a challenge to the denial of a defendant's application to waive a jury trial, the Supreme Court instructed trial courts to

(1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel;
 
(2) determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and
 
(3) determine, with an accompanying statement of reasons, whether, considering all relevant factors [including the gravity of the crime and the complexity of the case] it should grant or deny the defendant's request in the circumstances of the case.

[Id. at 317.]

While the colloquy between Anthony and the court in this case was relatively brief, defendant points to no facts that would indicate that he did not understand what he was giving up. Defendant was sophisticated enough to run a highly profitable and fairly complex multi-state criminal operation. He was represented by experienced legal counsel, and the record supports a reasonable inference that his attorney had discussed the waiver issue with him in detail on multiple occasions. Unlike the non-English-speaking immigrant in United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981), defendant no doubt knew that a jury was composed of twelve members and that its verdict must be unanimous. See United States v. Anderson, 704 F.2d 117, 119 (3d Cir.), cert. denied, 464 U.S. 838, 104 S. Ct. 129, 78 L. Ed. 2d 125 (1983). And the trial judge explained to both defendants that if they waived a jury, the judge would decide the facts and the law. Further, as in Jackson, supra, defendant had over a month between the waiver hearing and the trial to change his mind. Finally, although defendant was facing serious charges, he did not contest his guilt as to most of them. Rather, his entire defense rested on the contention that he was not operating an "enterprise" within the meaning of the RICO statute, a legal issue that he might reasonably have believed would be better understood by a judge than a jury.

For all of these reasons, we reject defendant's waiver argument. Our determination is without prejudice to defendant's right to raise in a petition for post-conviction relief a claim based on facts outside this record. See United States v. Cochran, 770 F.2d 850, 851 n.1 (9th Cir. 1985).

Affirmed.

 

On February 6, 2004, the trial judge entered an amended judgment of conviction "to specify in further detail this court's intentions as far as concurrent and consecutive sentencing." After merger of the conspiracy counts, Anthony was sentenced to fifteen years in prison for racketeering, a consecutive fifteen years with seven and one-half years of parole ineligibility for money laundering, and a consecutive seven-year sentence for theft by deception. The sentences for all other counts were concurrent.

Defendants were tried together, and we have elected to address their separate appeals in one opinion.

She also described the rule of the pimping world by which a prostitute could "choose" a new pimp by giving him money and telling him that she chose him. The new pimp would then inform the old pimp that he had acquired one of his prostitutes. To avoid switching, or "ad libbing," defendant forbid the prostitutes to talk to other pimps. The witness described how defendant beat her for violating this rule. See United States v. Pipkins, 378 F.3d 1281, 1286 (11th Cir. 2004), cert. denied, ___ U.S. ___, 126 S. Ct. 591, 163 L. Ed. 2d 492 (2005), which describes this system in greater detail.

(continued)

(continued)

29

A-2270-03T2, A-0406-04T4

April 3, 2006