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CRESPOGRAM REPORT

JULY 2, 2012

WHY DIDN’T KATHERINE FERNANDEZ-RUNDLE PROSECUTE CONGRESSMAN DAVID RIVERA?
BEHIND THE CURTAIN

If the case against Rivera had not yet been formally initiated, by October 22nd, Fernandez-Rundle had no doubt by then been informed and become involved in discussions related to pursuing David Rivera.


Imagine that if instead of investigating David Rivera for political corruption, Katherine Fernandez-Rundle had been poised, or had already started a child molestation case against a high profile individual.


Do you think for one minute that she would have allowed herself to be put into a situation where a similar photo might have been taken?


It takes strength of character not to allow yourself to be manipulated by a preacher into taking the stage with someone you know you’re investigating for criminal activity.  You can bet she wouldn’t have done it if it had been  a suspected child molester.


It’s Miami, Bitches!

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BILL OF INFORMATION

  STATE ATTORNEY’S CLOSE OUT MEMO

If the staff of the Miami-Dade State Attorney’s office would spent even one half of the time and creative energy that they do to craft Close Out Memos justifying why they couldn’t prosecute some crooked politician for screwing the taxpayers on just taking these cases to court and giving the citizens of Miami-Dade County the opportunity to hear the evidence and make a decision based on that evidence, the odds are that public corruption would probably not be as prevalent as it is today.


Last week I obtained and revealed a copy of the 52 Count Draft Bill of Information against Congressman David Rivera that Katherine Fernandez-Rundle refused to allow to be signed and carried out. (PDF’S of both the Bill Of Information and the Close Out Memo  are posted at the bottom of this story.)


Now, I’m not a lawyer - although I have played one in a number of courtrooms over the years with a modicum of success - but you don’t need to be a lawyer to be able to read the charges contained in the Draft Bill of Information, and then read the State Attorney’s Close Out Memo prepared by her assistant in charge of waving the Magic Wand, Jose Arroyo, without coming to the conclusion that logic, legal reasoning and a commitment to protect the public against against the kind of plunder engaged in by the Congressman came out on the loosing side of whatever reasoning went into refusing to go forward with a prosecution in this case.


THE TIMELINE


The timeline in this investigation is critical to understanding that the pieces of this puzzle  provided by the State Attorney’s Office don’t fit properly.


The investigation, according to the Close Out Memo, was initiated in October of 2010.  The Draft Bill of Information has a date of “8/23/11.”  The Close Out Memo is dated April 17, 2012.


This timeline is important because of the claims that the State Attorney’s Office was prevented from pursuing the Congressman because of the time limitations imposed by Florida’s Campaign Finance Laws, Chapter 106.


A PATTERN OF RACKETEERING ACTIVITY (RICO)


The State of Florida, like many other states, created a RICO ACT patterned on the Federal RICO ACT in 1977.  The Florida version allows for criminal prosecution under the RICO ACT for any:


        “Pattern of racketeering activity” means engaging in

        at least two incidents of racketeering conduct that

        have the same or similar intents, results, accomplices,

        victims, or methods of commission or that otherwise

        are interrelated by distinguishing characteristics and

        are not isolated incidents, provided at least one of such

        incidents occurred after the effective date of this act

        and that the last of such incidents occurred within 5

        years after a prior incident of racketeering conduct.”


The critical benefit that the RICO ACT afforded to a prosecution of Congressman Rivera was that the 5 year statute of limitations bypassed the 2 year limit imposed by Florida’s Campaign Finance Laws, Chapter 106.


RICO is also a beneficial tool because it can be used to demonstrate a “pattern” of behavior, in ways that allows jurors to comprehend complex cases.


On page 13 of the Close Out Memo, Jose Arroyo addresses the RICO charges and the reasoning why the State Attorney chose not to pursue them.


        “The subject’s campaign depository accounts for all

        his campaign accounts were maintained at Bank of

        America, a Delaware Corporation.  So, the application

        of this theory to the subject would suggest that as an

        account holder and as the campaign treasurer for his

        various campaigns, he associated directly or indirectly

        with Bank of America through a pattern of racketeering

        activity by engaging in multiple acts of racketeering

        conduct consisting of thefts, in violation of Florida Statute

        802.014.  More specifically, the subject repeatedly and

        intentionally committed multiple instances of theft by

        converting funds in his campaign depositories and

        using them for purposes otherwise not permitted by

       law.


        Having developed this theory, we sought to find legal

        support for its viability beyond our stacking and com-

        bining of various statutes.  Plainly stated, we were

        unable to find any support under Florida law for this

        theory of prosecution.  Florida appellate courts have

        not addressed this theory.  We thereafter sought out

        jurisdictions opinions by our sister courts and we were

        likewise unable to find any support.  There are references

        in cases to prosecution theories based upon thefts from

         “campaigns” where the campaign is an actual entity

        but there is no actual campaign entity defined as such

        under the law of this state.  Filing significant felony

        charges against a subject predicated upon a legal theory

        that was unsupported by an appellate court in this state

        was rejected.

                                                - Emphasis added by me

   

In the years since the creation of the RICO ACT, every single NEW application of the law in prosecution of criminal acts in Florida was done by prosecutors who did so WITHOUT the support any rulings “by an appellate court in this state.”


THE ISSUE OF THERE BEING NO PRIOR APPELLATE RULINGS REGARDING THIS KIND OF CRIMINAL BEHAVIOR, IS QUITE FRANKLY BECAUSE NO OTHER POLITICIAN IN FLORIDA HAS EVER BEEN DISCOVERED TO BE THIS EGREGIOUSLY CORRUPT IN THEIR BEHAVIOR!!!!!


THE NOTION THEREFORE, THAT THE STATE ATTORNEY’S OFFICE, WHOSE CLOSE OUT MEMO DETAILS IN PAGE AFTER PAGE ALL OF THE INSTANCES OF ALLEGED CRIMINAL BEHAVIOR BY RIVERA - MUCH OF IT IN VERY SPECIFIC DETAIL - IS CLAIMING THAT THEY DECIDED NOT TO PROSECUTE BECAUSE THEY COULDN’T FIND AN APPELLATE COURT RULING TO USE AS A SECURITY BLANKET, IS COMPLETE AND UTTER BULLSHIT!


A GOOD PROSECUTOR NOT ONLY GET CONVICTIONS, A GOOD PROSECUTOR TAKES PRIDE IN CREATING NEW CASE LAW THAT WILL HELP TAKE CROOKS OFF THE STREETS.


THE QUESTION OF STATUTE OF LIMITATIONS


The second major reason that Jose Arroyo cited as to why the Miami-Dade State Attorney’s office decided not to prosecute Congressman David Rivera, was because the statute of limitations ran out on a number of alleged crimes he committed related to the Florida Statute 106, Campaign Finance Law.


Regular readers will recall this is the same problem that was exploited and resulted in Miami Mayor Tomas Regalado and his daughter Raquel, getting a free pass on their campaign finance violations by this office.


In what can only be considered a tremendous act of misdirection, Jose Arroyo devotes considerable time and space to arguing about why the State Attorney could not prosecute Rivera for any of the Campaign Finance Law violations.


On page 12  of the Memo - last paragraph - after detailing all the sundry ways in which the State Attorney alleged that Rivera has screwed the pooch and his campaign account out of hundreds of thousands of dollars, including what I think is most people’s favorite argument for illegally using campaign finances, he essentially claimed they were powerless to act because the time clock had run out on the statute of limitations.


Before I address all that, allow me to quote the paragraph that should win some sort of prize for the abuse of public funds:


        “Further, the subject continued, that as a single man

        running as a political conservative, it was necessary

        for him to appear at campaign related events with a

        female escort.  According to the subject’s broad

        interpretation of the law, it was appropriate and

        permissible to pay for his female companion’s

        expenditures as well, as they were essential to

        his election campaigns.  The subject was actually

        able to identify political party events, functions, or

        meetings, in connection with most if not all of his out

        of town trips.”


You can’t make this craziness up!


Anyhow, back to the serious stuff.  Jose Arroyo devotes pages 5 - 12 of his Close Out Memo to crimes alleged to be tied to Rivera’s campaign finances, and covered by Florida’s Campaign Finance Law.


If you look at the Draft Bill Of Information however, the only Counts that claim to be directly tied to this statute are COUNTS 47-52.


If these particular Counts were the problem that Arroyo used 8 of the 14 pages of his Close Out memo to justify, why they couldn’t they have removed these Counts and prosecute Rivera on the other 46 COUNTS?


What were those other 46 Counts? They were 6 Counts of Money Laundering, 1 Count of 2nd Degree Grand Theft and 39 Counts of 3rd Degree Grand Theft.  All of them fell under Florida Statute 812, and all of them had a 5 year statute of limitations.


Yet, as significant as these Grand Theft Counts were - it is these Counts that account for most of the hundreds of thousands of dollars that Rivera is alleged to have misused from his campaign funds -  Arroyo only cites Florida Statute 812, one time in the entire Close Out Memo - and then only in referencing these counts to the RICO charge.


THE PROSECUTION OF CHILD MOLESTERS VS. CORRUPT POLITICIANS


Let’s say you live in a community where the State Attorney discovers there is a compulsive child molester who has engaged in multiple counts of molestation, and based on that discovery the State Attorney starts an investigation in order to build a case against that person.


20 months later, the State Attorney manages to amass a case with 52 Counts of the molester doing bad things with kids.


Just when the State Attorney is ready to file charges and arrest this individual, you learn months after the fact that he/she backed off, and after 8 MORE MONTHS, he/she announces that after spending all the money, time and effort he/she announces that they are not going to prosecute the child molester at all because the whole case got too complicated to get an easy conviction.


Some charges couldn’t be pursued because he/she claimed that the statute of limitations had run out, and the others charges he/she claimed he/she felt uncomfortable prosecuting because the crimes were so off the wall that this was the first time a child molester had been discovered trying to do these things to kids, and because of that none of the appeals courts in the state had ever had an opportunity to review any cases with this level of criminal behavior.


To top it off, even though most of the charges the State Attorney claimed were beyond his/her ability to prosecute, he/she claimed at the time that he/she announced the closing of the case that there were “still certain minor violations...that within the statute of limitations provided for under that section, maybe viable for a short period of time.”


In short, even though the prosecutor claimed that most of the charges were incapable of being pursued, there were still a handful that could have been pursued had the prosecutor decided to do file charges then and there.  But he/she didn’t.


WHAT WOULD YOU HAVE DONE IF YOU HAD BEEN THE PROSECUTOR?


OPTION 1.  Would you have agreed to letting the child molester go, arguing that even though you weren’t going to prosecute, there was still the possibility that the U. S. Justice Department might go after the child molester because it was “publicly reported” that federal authorities were supposedly reviewing the subject’s “income” during the periods he was molesting children for potential violations of federal law?


OPTION 2.  Would you have gone after him on the remaining “minor violations,” knowing that if you knew that if you succeeded you’d be able to tag the perp as a “child molester” and at least expose him to public and professional expose, plus trigger his removal from his job if he was convicted?


OPTION 3.  Or, would you have gone after him with everything you had, secure in the knowledge that you had those “minor violations” in your pocket to protect you against a total loss in court?


I suspect that most if not all of you would chose either OPTION 2 or 3.  No one I believe would agree to let the child molester go free without making some effort to prosecute him.


I chose using a child molester for this exercise for a reason.  Child molestation is viewed as a particularly heinous crime, and therefore the options above become stark against the possibility of a child molester being let loose on a community because of a lack of fervor or confidence in pursuing a prosecution.


There isn’t a prosecutor in the United States that would ever walk away from a prosecution of a child molester based on the arguments provided in the Close Out Memo prepared by Chief Assistant State Attorney Jose Arroyo, yet Katherine Fernandez-Rundle had no problem in doing so when it came to the 52 separate alleged  financial crimes committed by a politician. 


Why?


THE ACCEPTANCE OF POLITICAL CORRUPTION IN MIAMI-DADE COUNTY


Among the many dubious distinctions that make Florida so unique is the recent study that determined that Florida is the most corrupt state in the country.”


While there are many reasons for this state of affairs - and this is not the place to delve into all of the myriad reasons for this - one cannot ignore several important facts.


Since 1956, the office of Miami-Dade State Attorney has only been held by 3 individuals.  Richard Gerstein, 1956 - 1978, Janet Reno, 1978 - 1993, and Katherine Fernandez-Rundle, 1993 - to the present.  That 3 State Attorneys in 66 years.


In a 2000, the Hoover Institute at Stanford University, published an essay on Political Instability as a Source of Growth by Bruce Bueno de Mesquita, that argued from a foreign policy perspective that longevity in office is counter-productive to the promotion “a fair legal system,” in countries where the emphasis has been on supporting autocracies.


        “Political leaders are eager to stay in office and,

        contrary to the neoclassical economic model, are

        not benign agents of the people in whose name

        they lead. Because autocrats depend on small

        groups of supporters, they emphasize the use of

        private benefits to their cronies as the means to

        gain political loyalty and stay in office. This means

        that they generally have little incentive to pay attention

        to the overall quality of their public policies.”


The rules also apply to democracies.  Long-term democratic office holders engage in many of the same kinds of political agreements and arrangements that lead to the acceptance and embrace of political corruption in order to continue to maintain power, and in a community like Miami-Dade County that has had a long and sordid history of absentee ballot fraud, a large, poor, uninformed,  and marginally active electorate, all contributing to a history of political corruption going back for decades contributed to the current climate making Florida the most corrupt state in the country, as well as contributing to making Miami the “Most Miserable City in America.


Contrary to claims by Katherine Fernandez-Rundle that she has pursued political corruption aggressively, the evidence in recent years does not support those claims, and this case easily serves as the principal example to challenge that claim.


The Close Out Memo on the Rivera case states that the investigation against the Congressman was opened in October of 2010.


On October 22, 2010, Katherine Fernandez-Rundle joined then candidates Rick Scott and David Rivera at the South Dade Mega Church, Ministerio Internacional El Rey Jesus.  At one point in the service, they, along with Miami-Dade County Commissioner Joe Martinez and another unidentified individual, along with Scott’s wife and an unidentified woman joined the Apostle Guillermo Maldonado on the church’s stage for a prayer.