State v. Bush ( 2017 )

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STATE v. BUSH—DISSENT
EVELEIGH, J., dissenting in part. Although I join parts
I A and II of the majority opinion, I respectfully disagree
with part I B of the majority opinion and, therefore,
respectfully dissent in part. Specifically, I agree with
the state that there is sufficient evidence of an enter-
prise under an association in fact theory and participa-
tion in that enterprise by the defendant, Richard Bush,
to sustain his conviction for racketeering under General
Statutes § 53-395 (c). I conclude that the jury reasonably
could have found that the state had proven beyond a
reasonable doubt the existence of an association in fact
between the defendant and the six other drug dealers
who sold narcotics from the porch of his Bridgeport
home. Therefore, I would reverse the judgment of the
Appellate Court on the charge of racketeering under
the Corrupt Organizations and Racketeering Activity
Act (CORA), General Statutes § 53-393 et seq.
I agree with the majority that an association in fact
enterprise requires proof of: ‘‘(1) a purpose, (2) relation-
ships among those associated with the enterprise and
(3) longevity sufficient to permit the associates to pur-
sue the purpose of the enterprise . . . .’’ (Citation omit-
ted.) State v. Rodriguez-Roman, 297 Conn. 66, 82, 3
A.3d 783 (2010). I further agree that ‘‘evidence of an
ascertainable structure that exists for a purpose
[b]eyond that inherent in the pattern of racketeering
activity’’ is not required; (internal quotation marks omit-
ted) id.; and that ‘‘the requirements for proving an asso-
ciation in fact enterprise do not include a hierarchical
structure, fixed roles for its members, a name, regular
meetings, dues, established rules and regulations, disci-
plinary procedures and induction or initiation ceremon-
ies.’’ (Emphasis added.) Id., 82–83. Rather, as the
majority notes, an association in fact enterprise is ‘‘a
group of persons associated together for a common
purpose of engaging in a course of conduct that could
be proven by evidence of an ongoing organization, for-
mal or informal, and by evidence that the various associ-
ates function as a continuing unit.’’ (Internal quotation
marks omitted.) Id., 82; see also id., 83–84 (jury reason-
ably could have found that defendant and coconspirator
‘‘entered into an association . . . for the purpose of
issuing fraudulent licenses to illegal immigrants in
exchange for a substantial fee’’). After examining all of
the evidence and the reasonable inferences therefrom,
I would conclude that, viewed in the light most favor-
able to the state, the evidence in the record establishes
that the defendant sold cocaine himself and facilitated
the sale of cocaine by six other drug dealers, namely,
David Moreland, Jason Ortiz, Willie Brazil, Raymond
Mathis, Carlos Lopez, and Kenneth Jamison, from the
porch of his duplex home on Pembroke Street in Bridge-
port over an approximately six month period from June
25 through November 9, 2010.
As the majority acknowledges, in the present case,
there is no question that prongs one and three of the
test set forth in Rodriguez-Roman have been satisfied.
It is undisputed that the association had one main pur-
pose—the sale of narcotic drugs. Further, the parties
do not dispute the fact that the length of time, approxi-
mately five to six months, was sufficient to permit the
associates to pursue the purpose of the enterprise. Con-
sequently, my main disagreement with the majority cen-
ters on the relationships of those associated in the
enterprise. In answering this question, which concerns
prong two of the test, it is especially necessary to exam-
ine the relationship of the defendant to the other people
in the group. In performing this analysis, in my view,
it is critical to examine not only the direct evidence of
the association but also the inferences that the jury
reasonably could have drawn from all of the evidence,
including the exhibits and tapes that the police had
made of the drug purchases.
Evidence demonstrating the cooperative endeavor
between the defendant and the six other dealers begins
with the transaction on June 25, 2010. Specifically,
David Hannon, a police informant, went to the corner
of Ogden and Pembroke Streets to make a controlled
narcotics purchase from the defendant. Before Hannon
arrived, Sergeant Jason Amato saw the defendant in
front of his house, standing with Moreland and Mathis.
The defendant then left. When Hannon arrived,
Moreland told Hannon that the defendant had gone to
the police station to seek victims’ compensation for
injuries he had sustained in a shooting. Thereafter,
Moreland went to the porch of the defendant’s home
to obtain cocaine from Mathis, and then Hannon pur-
chased that cocaine from Moreland.
The jury also found a sale on June 30, 2010, to be
one of the two predicate acts in the pattern of racke-
teering. In the course of setting up the sale by telephone,
Hannon called Ortiz, an ‘‘associate’’ of the defendant.
After Hannon set up the sale with Ortiz, the defendant
called Hannon to ask why he had not yet arrived at the
meeting point. When Hannon did arrive, he called the
defendant. The Appellate Court described the transac-
tion that ensued as follows: ‘‘When Hannon arrived at
the defendant’s home, the defendant emerged from his
backyard, walked past Hannon’s vehicle while looking
inside it, then continued to the street corner, where he
gestured to Ortiz by raising his hand in the air. Ortiz
then approached Hannon’s vehicle and opened the
door, whereupon the defendant came up behind Ortiz,
reached inside the vehicle, and tapped hands with Han-
non. Hannon gave Ortiz money, in exchange for which
Ortiz gave Hannon the blue bag of cocaine that had
been in his mouth. Meanwhile, another man approached
the defendant. After completing the transaction with
Hannon, when the defendant gestured to him once
again, Ortiz handed something to the other man in
exchange for money. Ortiz and the defendant then
walked together toward the defendant’s backyard.’’
State v. Bush, 156 Conn. App. 256, 264, 112 A.3d 834
(2015).
In relation to the June 30 sale, the jury reasonably
could have concluded that the surveillance videotape
showed the defendant exit his backyard, look for Ortiz,
and command Ortiz with a hand gesture to get off his
porch and attend to Hannon. While Ortiz was in Han-
non’s vehicle completing the transaction, a man
approached the defendant while the defendant stood
outside Hannon’s vehicle overseeing Ortiz’ sale. The
defendant made another gesture to Ortiz and, in
response, Ortiz sold drugs to the unidentified man. After
the sales were complete, the defendant and Ortiz
walked together to the defendant’s backyard. In my
view, this evidence demonstrates that these sales were
not independent isolated events. Ortiz certainly
responded to the direction and control of the defendant.
In fact, a jury could have reasonably concluded that,
aside from the collection of drug dealers assembling
at the defendant’s house, the defendant controlled the
activities of the enterprise.
The jury reasonably could have found that two other
sales over the summer also established the association
between the defendant and the other dealers. In particu-
lar, sales made on August 6 and August 24, 2010, demon-
strate the association between the defendant and other
dealers. First, prior to the sale made on August 24,
Hannon made a telephone call to the defendant’s home
telephone number, which the defendant had given to
Hannon after selling him cocaine on August 6. More-
over, in order to accomplish the August 24 sale to Han-
non, the defendant obtained cocaine from Lopez, who
was on the front porch of the defendant’s home at
the time of the sale. These sales demonstrate that the
defendant and the other dealers were in communication
with each other and shared customers and drugs to sell.
Moreover, I would conclude that the sale on Novem-
ber 9, 2010, is particularly indicative of the ongoing
criminal association between the various actors in this
case. First, Hannon called the defendant with a number
that he previously had used to contact Ortiz. The Appel-
late Court described the transaction as follows: ‘‘When
Hannon arrived at the defendant’s home, the defendant
was standing on the street corner with . . . Brazil. The
defendant got into Hannon’s vehicle, and he and Han-
non drove off. During their ride, the defendant made a
. . . call in an apparent attempt to procure cocaine,
which Hannon had requested. After the call, Hannon
and the defendant drove back to the defendant’s home.
On the way back, Hannon told the defendant that he
also wanted to buy a gun, which the defendant said
was ‘doable.’ When they returned, Hannon dropped off
the defendant to speak to Brazil, then pulled around
the corner onto Pembroke Street, as the defendant had
directed. Once he did so [Moreland] approached Han-
non’s vehicle. When Hannon told Moreland that he had
given money to the defendant, Moreland gave Hannon
a quantity of cocaine. The defendant later called Han-
non to confirm that Moreland had given him the cocaine
and to discuss further his stated interest in purchasing
a gun.’’ Id., 265.
On the basis of this evidence, the jury reasonably
could have also found that the defendant was the con-
tact person for buying cocaine at the corner of Pem-
broke and Ogden Streets. All of the controlled buys
orchestrated by the task force were scheduled with
telephone calls to either the defendant’s house or a cell
phone that the defendant shared with at least one other
dealer. The defendant’s association to the drug dealing
enterprise was also established by the audiotape sur-
veillance that captured his warnings and boastings. Dur-
ing the July 14 sale, when Hannon introduced Dennis
Sang, an undercover police detective, to the defendant
as a buyer, the defendant assured Sang: ‘‘You’ll be
alright man, I live right here man . . . just don’t bring
no . . . cops and we all right.’’ During the July 16 sale,
the defendant bragged to Hannon and Sang that they
had nothing to fear when he was around. Also, during
the November 9 sale, when Hannon told the defendant
that he wanted to purchase a gun, the defendant told
Hannon that was ‘‘doable.’’
Additionally, the jury reasonably could have inferred
the defendant’s association to the enterprise from his
testimony. He testified that Ortiz and Moreland were
his ‘‘associates,’’ that he sold drugs, and that he bought
drugs from the candy store. He also testified that he
never called the police on dealers who were selling
from his porch because he ‘‘don’t tell on’’ anybody.
In addition, he testified that he was friendly with the
‘‘younger guys’’ who dealt drugs from his porch, so
much so that they gave him free samples to test the
quality of their product.
Finally, the jury reasonably could have inferred that
the defendant took steps to protect the arrangement
with the six other dealers. First, on July 14, he admon-
ished Hannon, who at the time was accompanied by
Sang, not to bring the police near his house. The defen-
dant testified that he had allowed the other dealers to
continue dealing from his porch and that he would not
call the police on them. Although there was no evidence
of profit sharing among those who dealt narcotics from
the defendant’s porch, and the defendant himself denied
profiting from drug dealing, he nevertheless testified
that he helped facilitate the other dealers’ sales in order
to obtain narcotics as gratuities, which he used to sup-
port his own addiction. Indeed, he described two of the
dealers in particular, namely, Moreland and Ortiz, as
his ‘‘associates.’’1
This pattern of cooperation and support between the
defendant and the dealers whom he permitted to sell
narcotics from a common location, the front porch of
his home, facilitated by the use of common or shared
telephones, supports the jury’s inference that an enter-
prise existed. This conclusion is supported by federal
court decisions under the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et
seq. For example, in holding that an apparent street
gang, although lacking a hierarchical structure or col-
ors, constituted a RICO enterprise, the United States
Court of Appeals for the First Circuit observed that the
group ‘‘had a sufficiently well-defined shape to consti-
tute an enterprise in the requisite sense. [It] exhibited
group cohesion over time; its membership pooled and
shared resources; the individuals involved had a sense
of belonging and self-identified as . . . members; and
the group had a well-honed set of goals. We think that
this is enough, if barely, to constitute a RICO enter-
prise.’’ United States v. Nascimento, 491 F.3d 25, 33
(1st Cir. 2007), cert. denied, 552 U.S. 1297, 128 S. Ct.
1738, 170 L. Ed. 2d 543 (2008); see also United States
v. Burden, 600 F.3d 204, 214–16 (2d Cir.) (sufficient
evidence of enterprise, despite lack of hierarchy or
organization, group had ‘‘had multiple members who
joined in the shared purpose of selling drugs and pro-
moting such sales’’ with evidence of common meeting
place, orderly activities with one member directing flow
of drugs to other dealers and organizing acts of violence,
and members engaged in acts of retaliation for violence
committed by gangs in area), cert. denied sub nom.
Buchanan v. United States, 562 U.S. 953, 131 S. Ct. 251,
178 L. Ed. 2d 251 (2010); United States v. Payne, 591
F.3d 46, 60–61 (2d Cir.) (sufficient evidence of enter-
prise to distribute narcotics in neighborhood, where
members acted as ‘‘ ‘street family,’ ’’ sold drugs at spe-
cific locations, protected those locations with violence,
shared funds and narcotics with each other, and aided
each other ‘‘during periods of incarceration’’), cert.
denied, 562 U.S. 950, 131 S. Ct. 74, 178 L. Ed. 2d 246
(2010); United States v. Nascimento, supra, 33 (noting
that gang shared weapons, information, and ‘‘acted on
behalf of one another by attempting to assassinate wit-
nesses to each other’s crimes’’); United States v. Con-
nolly, 341 F.3d 16, 27 (1st Cir. 2003) (‘‘[The defendant
and his associates] worked together in an [association
in fact] enterprise over a period of almost two decades,
joining forces to protect themselves from prosecution
and to further other criminal activities—some alleged
in the indictment, and others not specifically alleged.
There was cohesion in the group over time; the member-
ship shared resources and revenues; there was, in fact,
a sense of membership.’’).
The defendant, observing accurately that ‘‘garden
variety criminal activity undertakings’’ are not sufficient
for liability to attach under racketeering statutes like
CORA; (internal quotation marks omitted) Castillo v.
State, 170 So. 3d 112, 117 (Fla. App. 2015), appeal dis-
missed, Docket No. SC16-164, 2016 WL 374221 (Fla.
January 28, 2016); argues that ‘‘the evidence merely
showed that [he] lived in a home on a corner lot where
drug sales occurred and that many people congregated
in front of his house. The fact that [he] was [drug depen-
dent] during this time period, and that he always
expected and received a ‘tribute’ when providing drugs
to Hannon, coupled with the fact that [he] had to go
elsewhere to find drugs for Hannon, show that he
obtained the drugs to support his own drug habit and
not to further some common purpose of an enterprise.’’
(Footnote omitted.) Although this is not an unreason-
able interpretation of the evidence, it is, nevertheless,
inconsistent with the jury’s verdict. Thus, it runs afoul
of the well established precept that, in considering the
sufficiency of the evidence, ‘‘[w]e do not sit as a thir-
teenth juror who may cast a vote against the verdict
based upon our feeling that some doubt of guilt is shown
by the cold printed record. . . . Rather, we must defer
to the jury’s assessment of the credibility of the wit-
nesses based on its firsthand observation of their con-
duct, demeanor and attitude. . . . This court cannot
substitute its own judgment for that of the jury if there
is sufficient evidence to support the jury’s verdict.’’
(Internal quotation marks omitted.) State v. Morgan,
274 Conn. 790, 800, 877 A.2d 739 (2005). ‘‘[O]nce a defen-
dant has been found guilty of the crime charged, a
reviewing court conducts its review of all the evidence
in the light most favorable to the prosecution. In short,
[t]he evidence must be given a construction most favor-
able to sustaining the jury’s verdict.’’2 (Internal quota-
tion marks omitted.) Id., 800–801.
The CORA charge in the present case was brought
pursuant to § 53-395 (c), which provides in relevant part
that it is unlawful for any person ‘‘associated with, any
enterprise to knowingly conduct or participate in,
directly or indirectly, such enterprise through a pattern
of racketeering activity . . . .’’ An ‘‘enterprise is ‘a
group of persons associated together for a common
purpose of engaging in a course of conduct,’ proved by
‘evidence of an ongoing organization, formal or infor-
mal, and by evidence that the various associates func-
tion as a continuing unit.’ ’’ United States v. Burden,
supra, 600 F.3d 214; see also General Statutes § 53-394
(c); State v. Rodriguez-Roman, supra, 297 Conn. 82–83.
Pursuant to § 53-394 (a) (16), ‘‘ ‘[r]acketeering activity’
means to commit, to attempt to commit, to conspire
to commit, or to intentionally aid, solicit, coerce or
intimidate another person to commit any crime which,
at the time of its commission, was a felony chargeable
by indictment or information under . . . sections 21a-
277, 21a-278 and 21a-279, relating to drugs . . . .’’3
Pursuant to § 53-394 (e), ‘‘ ‘pattern of racketeering
activity’ means engaging in at least two incidents of
racketeering activity that have the same or similar pur-
poses, results, participants, victims or methods of com-
mission or otherwise are interrelated by distinguishing
characteristics, including a nexus to the same enter-
prise, and are not isolated incidents . . . .’’
Viewing the entire evidence, and in the light most
favorable to sustaining the verdict, the jury reasonably
found: (1) the existence of a drug dealing association in
fact enterprise; (2) the defendant knowingly associated
himself with that enterprise; and (3) the defendant
intentionally participated in the affairs of the enterprise
when he committed two acts of racketeering, namely,
two felony violations of our drug dependency laws,
when he and Ortiz sold cocaine to Hannon on June 30,
and when he and Moreland sold cocaine to Hannon on
November 9. See State v. Carter, 243 Conn. 392, 395,
703 A.2d 763 (1997) (factual basis for guilty plea to
violations of § 53-395 [b] and [c] included three sales
of heroin, acting as lookout for narcotics purveyors,
and attempts to flag down vehicles to sell narcotics).
On the basis of the surveillance videos contained within
the record and the testimony from the witnesses pre-
sented at trial, a drug dealing association in fact existed
at the defendant’s house where he and at least six other
dealers sold cocaine from a single location on the east
side of Bridgeport.
The jury reasonably could have inferred and found
beyond a reasonable doubt that defendant was associ-
ated with a drug dealing enterprise because: (1) he lived
there; (2) he warned Hannon and Sang not to bring
any ‘‘cops’’ around; and (3) he committed two acts of
racketeering when he sold cocaine to Hannon with two
other dealers on June 30 and November 9. The jury
reasonably could have inferred that those two sales
constituted a pattern of racketeering activity that had
a nexus to the enterprise because both sales: (1)
occurred at the same location, namely, the defendant’s
home; (2) had the same purpose, namely, the sale of
cocaine; (3) had similar participants; and (4) began with
a call to either the defendant’s home telephone, or a
cell phone that the defendant shared with at least one
other dealer and used to fulfill orders. Also, the jury
reasonably could have inferred from the evidence that
the sales on June 30 and November 9 were not isolated
incidents. The investigation lasted months, during
which the task force observed the defendant commit
a total of six sales of cocaine.
I respectfully disagree with the majority’s conclusion
that ‘‘there is no evidence that they functioned as a
continuing unit or even an informal organization. . . .
[T]he evidence . . . does not establish the requisite
relationships necessary to sustain a finding of an enter-
prise. Indeed, it is well short of the evidence that two
United States Courts of Appeal have characterized as
minimally sufficient to establish the existence of an
association in fact under RICO.’’ Two of the cases cited
by the majority to support its conclusion actually
affirmed RICO convictions. See United States v. Bur-
den, supra, 600 F.3d 214–16; United States v. Nasci-
mento, supra, 491 F.3d 33. In the present case, the group
had multiple members who joined in the shared purpose
of selling drugs and promoting such sales with evidence
of a common meeting place. Further, as demonstrated
by the surveillance tapes, the defendant directed the
flow of drugs and what dealer should deal with what
customer. The defendant also set the ground rules for
participating on the porch by stating that no one informs
on anyone else and instructed the members not to bring
the police. Also, although there is no direct evidence
of violence in this case, the defendant, in response
to a question posed Hannon, indicated that he could
arrange for the purchase of a gun. United States v.
Burden, supra, 215 (recognizing ‘‘organizing acts of vio-
lence’’ as evidence of association in fact). Finally, when
drugs were needed, it was clear that the defendant
would obtain the drugs from other members to make
his sale. When one adds the evidence that the defen-
dant’s cell phone and home telephone number were
used by other dealers to complete other sales, I would
conclude that there is no doubt that the jury had more
than sufficient evidence upon which to conclude that
the defendant was guilty of violating CORA.
I respectfully disagree with the majority’s statement
that ‘‘all that the evidence in the present case proves
is an aggregation of apparently friendly individuals
involved in various narcotics transactions, with no indi-
cation of ties to demonstrate a sustained pattern of
cooperation among them.’’ The sharing of cell phones,
drugs, meeting places, directions from the defendant,
and rules of transaction made by the defendant, belie
that description. I further respectfully disagree with the
majority’s conclusion that ‘‘upholding the jury’s verdict
in the present case would mean that virtually any coop-
eration by a defendant with others in connection with
the sale of narcotics would have the impermissible
result of turning ‘garden variety criminal activity under-
takings’ into racketeering punishable under statutes
such as CORA.’’ I disagree. There would not be a CORA
violation where you had a loose association with no
sharing of telephones, no sharing of drugs, no common
meeting place, and no direction from one individual.
An example of a set of facts that would not justify a
CORA violation is given in the majority opinion. Jackson
v. State, 858 So. 2d 1211 (Fla. App. 2003), in my opinion,
presents an example of evidence that is not enough to
establish either a RICO or a CORA violation. In Jackson,
a group of dealers were friendly with each other and
met in a park to sell drugs. Id., 1212. The defendant in
that case was not involved in: (1) sharing drugs; (2)
sharing cell phones; or (3) receiving direction from one
member. Under those facts, I would agree that the fact
that the members in the group were friendly with each
other and sold drugs in the same common public loca-
tion is not sufficient to establish an association. In the
present case, regardless of whether the facts establish
that this is a ‘‘ ‘garden variety’ ’’ drug operation, I would
conclude that conducting such an operation with a
group of six other drug dealers on the porch of a private
home or adjoining public streets, and dispensing drugs
to people stopping in front of the porch as if it were a
drive-through window at a twenty-four hour pharmacy,
is the very type of activity that CORA was intended to
punish. In my view, the majority opinion does not follow
our directive to look at the verdict in the light most
favorable to sustaining it, and not to act as the thirteenth
juror in a case where the jury has already convicted
the defendant based upon the sufficient evidence pre-
sented at trial.
Accordingly, I respectfully dissent from part I B of
the majority opinion.
1
I acknowledge the state’s reliance on the language used to describe the
quantities of cocaine purchased, as well as the packaging of that cocaine
and the fact that the dealers concealed those packages in their mouths, as
evidence of the enterprise. Given the lack of evidence that this language
and packaging were unique to the sales conducted from the defendant’s
porch, and Detective Amato’s testimony that they were in fact common to
the narcotics trade in the east side of Bridgeport as a whole, I agree with
the defendant and the majority that this evidence was not probative of the
existence of an enterprise.
2
I also disagree with the defendant’s reliance on Jackson v. State, 858 So.
2d 1211, 1212 (Fla. App. 2003) (per curiam), wherein the Florida intermediate
appellate court concluded that there was insufficient evidence to prove the
state’s allegation that ‘‘the defendant was employed by or associated with
a criminal street gang.’’ The court observed in Jackson that ‘‘[t]here was no
evidence that he was a member of either gang; that he engaged in transactions
with or on behalf of gang members; or that he shared any of his drug proceeds
with the gangs. Rather, the evidence showed only that [the] defendant sold
cocaine in the park and that he was familiar with some other persons who
were gang members.’’ Id. I view Jackson as distinguishable because, viewed
in the light most favorable to the state, the evidence in the present case
showed that the defendant was a member of an informal association of six
other drug dealers who plied their wares from his own porch, and that he
had actively participated in some of their sales.
3
CORA and its federal counterpart, RICO, share a similar purpose and
analogous definitions of an association in fact enterprise. State v. Rodriguez-
Roman, supra, 297 Conn. 83.