Miskovsky v. State
Miskovsky v. State
Opinion of the Court
SUMMARY OPINION
T1 Grover Lee Miskovsky was tried by jury and convicted of Count I, Racketeering in violation of 22 0.8.1991, § 1408; Count II, Indecent Exposure in violation of 21 0.8.8upp.1996, § 1021; and Count III, Attempted Perjury by Subornation in violation of 21 0.8.1991, § 504, in the District Court of Oklahoma County, Case No. CF-99-1787. In accordance with the jury's recommendation the Honorable Twyla Mason Gray sentenced Miskovsky to eighty-four (84) years imprisonment (Count I); seven (7) years imprisonment (Count II); and two (2) years imprisonment (Count III). Miskovsky appeals from these convictions and sentences.
12 Miskovsky raises ten propositions of error in support of his appeal:
I. The trial court erred in admitting evidence seized from Miskovsky's office because there were insufficient facts stated in the affidavit to support the search warrant;
IL. The trial judge erred by refusing to recuse;
The trial judge erred by failing to allow Miskovsky to represent himself in this case; III.
IV. The trial judge erred by tainting the jury;
V. The trial judge erred by admitting testimony involving the Ware children;
VI. The State's evidence was insufficient to prove the violation of the Oklahoma Corrupt Organizations Prevention Act;
VIL. The trial court erred by not granting a mistrial after the admission of irrelevant evidence;
VIII. The evidence was insufficient to support the charge of attempted subornation of perjury;
IX. The Oklahoma Corrupt Organization Act, as charged in this case, violates the constitutional ban on ex post facto laws; and
X. The sentence imposed is excessive, in part because of prosecuto-rial misconduct, and should be modified.
13 After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we find neither reversal nor modification is required. However, Propositions VI and IX present questions of first impression and we discuss them fully.
95 In Proposition VI Miskovsky claims the State's evidence was insufficient to prove the violation of the Oklahoma Corrupt Organizations Prevention Act (RICO). This statute prohibits a person from profiting through racketeering activity through the affairs of an enterprise.
16 Miskovsky claims that the RICO statute should not be applied to his situation, and argues his prosecution was an attempt to punish him for "garden-variety" sex crimes on which the statute of limitations had run. We recently interpreted the appropriate scope of RICO in Glenn v. State.
17 Having determined the RICO prosecution is proper, we turn to the enterprise requirement. In United States v. Turkette,
18 Miskovsky appears to argue that an enterprise must be proved to have an ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity. That is, Miskovsky appears to urge this Court to adopt a "separate proof" test rather than looking only at the evidence also offered to prove the pattern of racketeering. The courts are split on whether an enterprise must be proved by separate evidence from that necessary to prove the pattern of racketeering activity. In United States v. Bledsoe the Eighth Cireuit required separate proof for each element.
T 9 Miskovsky relies on Brannon v. Boatmen's Bancshares, Inc.,
[ 10 In United States v. Sanders,
{11 In United States v. Blinder,
[ 12 Not every jurisdiction requires (or has in practice found) different proof. The See-ond Circuit does not require separate proof of each element. In United States v. Bagaric
{ 13 In Riccobene the Third Circuit, following Turkette, held an enterprise must have an existence beyond that necessary to commit each of the predicate racketeering offenses. This language does not specify whether the State must show that the enterprise has an organized structure using different evidence than that used to prove the substantive racketeering offenses. Reviewing the opinion, we note the Third Cireuit found sufficient evidence that the organization "served a clearinghouse and coordination function" apart from the actions necessary to carry out any of the racketeering activities charged against the individual defendants.
14 This Court will join the jurisdictions which require some separate proof for each element, along with the evidence of the predicate acts. A RICO prosecution is a powerful tool, involving enhanced punishments and allowing the State to charge multiple defendants with a variety of crimes in different locations, which might not be proper against any single defendant in a particular venue. Given the important advantage RICO grants the prosecutor, and the essential nature of the enterprise element, it is not unreasonable to require a prosecutor to prove an enterprise has some structure apart from the crimes it is alleged to have committed. Otherwise the Court runs the risk of allowing any persons who happen to commit a series of crimes together to be subject to RICO.
(15 The evidence here was sufficient to satisfy the "separate proof" standard. Many witnesses, including Miskovsky, testified to his long-standing employment with a variety of law firms as both associate and partner. Witnesses testified Miskovsky's law practice always functioned as a legitimate business entity, with secretaries, bookkeepers, investigators, and attorneys performing assigned roles which furthered the organizations' activities. There is also no question that the law practice had a structure for group decision-making, with an ongoing mechanism to direct the group's affairs. Miskovsky claims the evidence failed to show any differentiation in roles among himself, Gregg and Fox. The State was not required to provide such evidence, as neither Gregg nor Fox were members of the alleged enterprise.
117 Miskovsky finally claims that an individual cannot constitute a criminal enterprise. The Information, of course, alleged that the criminal enterprise was Miskovsky's law practice. The United States Supreme Court recently held that a corporate owner/employee, such as Miskovsky, is a "person" distinet from the corporation, which is a legal entity in itself.
118 Finally we discuss the pattern requirement. To prove a pattern of racketeering activity the State must show (1) a relationship between the predicate acts and (2) that the acts pose a threat of continuing activity.
120 Miskovsky finally claims the evidence was insufficient to prove each individual predicate act beyond a reasonable doubt. Miskovsky appears to claim that, although the jury did not find he molested the Ware children, this evidence influenced the jury's decision on the other predicate acts. The record does not support this interpretation of the jury's findings. The jury's failure to find he committed any crimes against the Ware children does not help Miskovsky. Rather, it leads inescapably to the observation that, with one exception, the jury found Miskovsky had committed each predicate crime in which the victim identified Miskovsky in open court as her attacker. The jury failed to find Miskovsky committed one previously unreported alleged act in which consent was raised as a defense. The clear, detailed and unequivocal testimony of each victim was it
T21 In summary, the RICO statute encompasses this prosecution. The State offered sufficient evidence to prove both an enterprise and a pattern of racketeering activity. Proposition VI is denied.
122 In Proposition XI Miskovsky claims the RICO prosecution against him violates the constitutional prohibition against ex post facto laws. Miskovsky argues he should not have been charged under RICO since almost all the predicate crimes occurred before RICO was enacted. In interpreting issues of first impression under the state RICO statute, we may look to federal law.
123 We find in Proposition I that the affidavit supporting the search warrant in the case provided a substantial basis for concluding that contraband or evidence of a crime would be found in a particular place.
124 We find in Proposition VII that error during Ms. Stevens's and Ms. Becker's testimony was cured by admonition to the jury;
Decision
{25 The Judgments and Sentences of the District Court are AFFIRMED.
. 22 0.$.1991, § 1403.
. 22 0.$.1991, § 1403(A); OUJI-CR (2nd) 3-28.
. Glenn, 26 P.3d 768, 2001 OK CR 15, ¶ 10.
. Id.
. 30 F.3d 1296 (10th Cir. 1994) Cattle companies sued for fraud and conversion under RICO. The United States District Court for the Eastern District of Oklahoma dismissed the claims, holding the plaintiffs failed to state a claim under RICO. The Tenth Circuit, affirming, noted that the plaintiffs failed to plead two elements of a RICO claim and stated, "[The district court correctly observed that the plaintiffs attempted 'to dress a garden-variety state fraud and/or conversion case in RICO clothing'."
. 452 U.S. 576, 583, 101 S.Ct. 2524, 2529, 69 L.Ed.2d 246 (1981). Turkette held an enterprise may be legal or illegal in nature.
. 452 U.S. at 580, 101 S.Ct. at 2527.
. 452 U.S. at 583, 101 S.Ct. at 2528.
. 22 0.$S.Supp.1993, § 1402(2); OUJI-CR (2nd) 3-34.
. Brannon v. Boatmen's Bancshares, Inc. 952 F.Supp. 1478, 1483 (W.D.Okla. 1997), aff'd, Brannon v. Boatmen's First Nat. Bank of Oklahoma, 153 F.3d 1144 (10th Cir. 1998).
. 709 F.2d 214 (3rd Cir.), cert. denied sub nom. Ciancaglini v. United States, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983).
. Riccobene, 709 F.2d at 222.
. Id. at 223.
. 674 F.2d 647, 664, (8th Cir.), cert. denied sub nom. Phillips v. U.S., 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982). The United States admitted that the enterprise alleged was the persons engaging in securities fraud, not the agricultural co-ops whose securities were sold. The question on appeal was whether there was sufficient evidence of a single enterprise consisting of the individual defendants associating in fact and distinct from the co-ops.
. 960 F.2d 765, 770 (8th Cir. 1992). This case charged wire and mail fraud in connection with a fraudulent commercial financing scheme. See also United States v. Leisure, 844 F.2d 1347, 1363 (8th Cir.), cert. denied, 488 U.S. 932, 109 S.Ct. 324, 102 L.Ed.2d 342 (1988) (structure proved by evidence "viewed in complete isolation from the group's pattern of racketeering activity.")
. Diamonds Plus, Inc., 960 F.2d at 771.
. 660 F.2d 996 (4th Cir. 1981), cert. denied sub nom. Garonzik v. United States, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 313 (1982). Griffin involved a scheme where three men, individually arrested for gambling offenses, entered into a scheme to bribe the Baltimore Police Department. The gambling operations affected interstate commerce.
. Griffin, 660 F.2d at 1000.
. Id.
. 952 F.Supp. 1478 (W.D.Okla. 1997), aff'd, Brannon v. Boatmen's First Nat. Bank of Oklahoma, 153 F.3d 1144 (10th Cir. 1998). On appeal the parties contested only the District Court's finding that plaintiffs had not shown an enterprise distinct from the defendant corporate "person'"; the Tenth Circuit affirmed, discussing the parent-subsidiary corporate relationship in the RICO context.
. 52 F.3d 640 (7th Cir. 1995).
. Richmond, 52 F.3d at 646. See also Burdett v. Miller, 957 F.2d 1375, 1379 (7th Cir. 1992) (structure shown by continuity-persistence as identifiable entity through time-and differentiation of roles); United States v. Neapolitan, 791 F.2d 489, 499 (7th Cir.), cert. denied, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986) (association-in-fact must have ascertainable structure, with the purpose of maintaining operations directed toward an economic goal, existing apart from the predicate acts of racketeering).
. 928 F.2d 940, 943 (10th Cir. 1991), cert. denied, 502 U.S. 845, 112 S.Ct. 142, 116 L.Ed.2d 109 (1991).
. Id. at 943-44.
. 10 F.3d 1468 (9th Cir. 1993).
. Blinder, 10 F.3d at 1473-74, citing both Bledsoe, 674 F.2d 647, 665 (8th Circuit) and Bagaric, 706 F.2d 42, 55 (2nd Circuit).
. Blinder, 10 F.3d at 1474, citing United Energy Owners Committee, Inc. v. United States Energy Management Systems, Inc., 837 F.2d 356 (9+th Cir. 1988).
. 706 F.2d 42 (2nd Cir. 1983), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983). The Second Circuit did not discuss the scope of RICO claims.
. Bagaric, 706 F.2d at 56.
. Id.
. 729 F.2d 1302 (11th Cir. 1984). The defendants participated in a series of planned bankruptcy or "bustout" schemes, where they intend
. Hewes, 729 F.2d at 1311.
. Riccobene, 709 F.2d at 224.
. See, e.g., Riccobene, 709 F.2d at 222-23, n. 10.
. 964 F.2d 193 (3rd Cir. 1992).
. Pelullo, 964 F.2d at 211-212.
. Glenn, 26 P.3d 768, 2001 OK CR 15 at ¶ 13.
. Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 121 S.Ct. 2087, 2091, 150 L.Ed.2d 198 (2001).
. Id.
. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 2900, 106 L.Ed.2d 195 (1989).
. Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1555 (10th Cir. 1992).
. H.J. Inc., 492 U.S. at 240, 109 S.Ct. at 2901.
. Boone, 972 F.2d at 1555 (citations omitted).
. In Proposition V, infra, we conclude that Fox and Gregg were accomplices whose testimony was corroborated by several independent witnesses.
. The final predicate act, Miskovsky's attempt to suborn perjury, was committed to weaken the State's case and preserve his liberty, arguably
. Id.; HJ. Inc., 492 U.S. at 242, 109 S.Ct. at 2902.
. HJ. Inc., 492 U.S. at 242, 109 S.Ct. at 2902; Boone, 972 F.2d at 1556.
. Schultz v. Rhode Island Hosp. Trust Nat'l Bank, 94 F.3d 721 (1st Cir. 1996)(no pattern where multiple acts were done to further a single short-term scheme which had ended).
. 786 F.Supp. 890 (D. Montana 1992).
, Rindal, 786 F.Supp. at 897.
. Id.
. The State appears to misunderstand the thrust of the continuity requirement. Noting that Oklahoma's RICO statute requires the last predicate act charged to have occurred within three years of a prior occasion, while the federal statute has a ten-year period, the State suggests continuity is simply not an issue. The Supreme Court, and other courts discussing the continuity requirement, have not focused on the time limit necessary for a RICO prosecution. "Continuity" refers to the nature of the conduct. The State is mistaken in suggesting that the Legislature has removed the requirement by enacting a smaller statutory period than that in the federal statute. The courts must still determine whether the nature of the conduct alleged constitutes a continuing activity, either by repeated instances within a closed time period or by continuing instances with a threat of future repetition.
. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04.
. 22 0.$.1991, § 1419.
. United States v. Campanale, 518 F.2d 352, 364-65 (9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976).
. Id. Campanale cited the Senate Judiciary Committee report which also made this point. See also United States v. Field, 432 F.Supp. 55, 59 (S.D.N.Y. 1977), cert. dismissed, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978).
. Glenn, 26 P.3d 768, 2001 OK CR 15 ¶ 4.
. Bryan v. State, 1997 OK CR 15, 935 P.2d 338, 353, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299; Gregg v. State, 1992 OK CR 82, 844 P.2d 867, 874. The fact that the evidence sought was not found does not lessen the validity of the magistrate's determination of probable cause, based on the extremely detailed material in the affidavit.
. Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157, 1163; Mehdipour v. State, 1998 OK CR 23, 956 P.2d 911, 915. In fact, the record shows that the trial court was extremely patient with Miskovsky's difficult behavior throughout a long and difficult trial process.
. Rule 44, Rules of the Seventh Judicial District (2001); Rule 26, Rules for District Courts of Oklahoma, Title 12, Ch. 2, App. (2001).
. Parker v. State, 1976 OK CR 293, 556 P.2d 1298, 1302.
. McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 954, 79 L.Ed.2d 122 (1984); Parker, 556 P.2d at 1302.
. We reject Miskovsky's suggestion that the trial court's explanation of the deputy's presence amounts to trying him in shackles. We note
. Perry v. State, 1988 OK CR 252, 764 P.2d 892, 896; Bennett v. State, 1977 OK CR 303, 570 P.2d 345, 348.
. 21 0.$.1991, § 742.
. Welch v. State, 2000 OK CR 8, 2 P.3d 356, 369-70, cert. denied, 531 U.S. 1056, 121 S.Ct. 665, 148 LEd.2d 567; Al-Mosawi v. State, 1996 OK CR 59, 929 P.2d 270, 284, cert. denied, 522 U.S. 852, 118 S.Ct. 145, 139 L.Ed.2d 92 (1997) (admonishment cures error unless error appears to have determined verdict).
. 12 0.S.1991, §§ 2401.
. Knighton v. State, 1996 OK CR 2, 912 P.2d 878, 894 cert. denied, 519 U.S. 841, 117 S.Ct. 120, 136 L.Ed.2d 71 (decision to deny or grant mistrial within trial court's discretion).
. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04.
. Jones v. State, 1998 OK CR 36, 965 P.2d 385, 386.
. The trial court did not abuse its discretion in deciding to (a) limit questioning in voir dire and (b) remove Miskovsky from the courtroom when his continued disturbance affected the jury's ability to hear testimony. Cannon v. State, 1998 OK CR 28, 961 P.2d 838, 844; Mehdipour, 956 P.2d at 916. Miskovsky has shown no prejudice from the trial court's failure to admonish the jury before evening recess. Goforth v. State, 1979 OK CR 49, 595 P.2d 813, 815.
Concurring Opinion
Concur in Results
T1 I concur in the Court's decision to affirm the judgments and sentences in this case. As I stated in my separate vote in Glenn v. State, 2001 OK CR 15, 26 P.3d 768, 772-774, I believe the Oklahoma Legislature provided broader application in the Oklahoma Corrupt Organizations Prevention Act, 22 0.9.1991, § 1401, et seq. (OCOPA), than that provided in the federal act. While the Oklahoma Legislature stated in Section 1419, the courts of this state "may follow the construction given to federal laws by the federal courts", it did not require us to do so. Our state OCOPA statutes should be interpreted independently to apply the intent of the Oklahoma Legislature and not the Federal Congress. That intent is evidenced through the limitation of the application of the act to those crimes defined as "Racketeering activity" in Section 1402(10). In addition, the Legislature has clearly defined what constitutes an "enterprise" under OCOPA. See 22 O.8.8upp.1998, § 1402(2).
T2 I am not enamored with either the use of federal caselaw to define terms that are already defined in the Oklahoma Statutes or the verbal gymnastics required to apply those statutes to this case. Neither am I willing to limit the plain language of the statutes to entities/individuals organized to conduct a legal business but who also commit criminal acts which come within our OCOPA statutes. The Court's opinion gives this im
T3 Finally, I am afraid this opinion fails to give trial judges and attorneys the clear direction they need to administer our OCOPA statutes. This is a complex area of law, and this Court should always seek to clarify, rather than complicate, the application of our statutory language. Due to the breadth of my concerns with the Court's analysis, I can only concur in results.
Reference
- Full Case Name
- Grover Lee MISKOVSKY, Appellant, v. STATE of Oklahoma, Appellee
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- 7 cases
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- Published