After she was convicted of “engaging in an organized scheme
to defraud, in violation of section 817.034(4), Florida Statutes”, Kathy
Dent appealed. Dent v. State, __ So.3d ___, 2013 WL 440117 (Florida Court of Appeals 2013). The scheme at issue
involved a computer program that Deputies in the Palm Beach County Sheriff’s
Office used to sign up for overtime work.
Dent v. State, supra.
According to the opinion, the Sheriff’s Office provides
deputies for hospital duty to guard an
inmate or arrested person who is admitted to a hospital. Initially, a deputy on
the current shift is assigned to the hospital when the prisoner is admitted,
and that deputy serves until the end of his or her shift, at which time it
becomes an overtime assignment.
To fill these assignments, the
Sheriff's department utilizes a computer program which allows deputies to sign
up to work overtime shifts. The lieutenant on the shift when the prisoner is
admitted to the hospital creates a computer record of the prisoner's
admittance. It generates a weekly list of overtime shifts for the week for that
prisoner, although if the prisoner is released from the hospital those overtime
shifts would not be used. The positions for new overtime shifts become
available for signup at midnight on Sunday night for the following week.
To obtain the right to work one of
these shifts, deputies must log into the system and sign up for one shift at a
time. Once the deputy signs up for a shift he/she must wait 48 hours before
signing up for another one. No one is allowed to sign up another person for an
overtime shift except supervisors who are signing deputies to cover a present
shift. Lieutenants can also sign up others for overtime shifts.
Complaints
were raised because several deputies noticed that . . . Kathy Dent was already assigned
to work various overtime shifts when the shifts became available at midnight on
Sunday night. An investigation revealed that Dent was assigned on the computer
system to a hospital overtime shift 388 times. Dent's friend, Lieutenant Sandra
Nealy, assigned Dent to work 100 hospital overtime shifts during a one-year
period. Although Dent did not work all the overtime shifts she was assigned,
she earned more than $18,000 working hospital overtime shifts.
Dent v. State, supra.
The investigation resulted in Dent’s being charged, as noted
above, with engaging in a scheme to defraud in violation of Florida Statutes §
817.034(4), which makes it a crime to “engage[] in a scheme to defraud and
obtain[] property thereby”. Dent v. State, supra. The statute defines
“property” as “anything of value,” and defines “scheme to defraud” as
a systematic, ongoing course of conduct
with intent to defraud one or more persons, or with intent to obtain property
from one or more persons by false or fraudulent pretenses, representations, or
promises or willful misrepresentations of a future act.
The information that was used to charge Dent alleged that
she “`did engage in a scheme constituting a systematic, ongoing course of
conduct with intent to defraud one or more persons, or to obtain property from
one or more persons by false or fraudulent, representations, or promises, and
did obtain property from one or more of such persons. . . .’” Dent v. State, supra. And the Court of Appeals’ opinion notes that
[a]t trial, the state presented its
theory that Dent's manipulation of the computer overtime signup system
prevented other Sheriff's deputies from signing up for overtime, and that other
deputies lost the opportunity to get these assignments and earn overtime pay.
Dent earned over $18,000 in overtime pay for overtime shifts that she actually
worked. This was not a case, however, where she was paid for shifts that she
did not work. The jury convicted her of a third degree felony, prompting this
appeal.
Dent v. State, supra.
On appeal, Dent argued that
the state failed to prove that she
obtained `property’ within the meaning of the statute when all the state proved
was the inability of other deputies to sign up for the opportunity to obtain
overtime. In other words, her conduct did not amount to a crime
Dent v. State, supra.
The Court of Appeals began its analysis of her argument by
noting that in adopting Florida Statutes § 817.034, entitled the “Florida
Communications Fraud Act,”, the Florida legislature “specifically” articulated
“its intent in adopting this criminal statute”:
`(1) Legislative intent.—
(a) The Legislature recognizes that schemes to
defraud have proliferated in the United States in recent years and that many
operators of schemes to defraud use communications technology to solicit
victims and thereby conceal their identities and overcome a victim's normal
resistance to sales pressure by delivering a personalized sales message.
(b) It is the intent of the Legislature
to prevent the use of communications technology in furtherance of schemes to
defraud by consolidating former statutes concerning schemes to defraud and
organized fraud to permit prosecution of these crimes utilizing the legal
precedent available under federal mail and wire fraud statutes.’
Dent v. State, supra.
Since the Florida Legislature directed it to use federal
cases involving fraud prosecutions under federal law as a source of guidance in
interpreting this statute, the Court of Appeals noted that “we look to those
precedents and conclude that the opportunity to sign up for overtime, which was
deprived to other deputies by Dent's conduct, is not “property” within the
meaning of the statute.” Dent v. State, supra.
It began with the U.S. Court of Appeals for the Third Circuit’s decision in U.S. v. Henry,
29 F.3d (1994), in which two public officials were charged with bank fraud and
wire fraud
for corruption of the process by which
banks were chosen as depositories for funds from various toll bridges. The
commission in charge of the funds conducted a competitive bidding process with
various banks for their short-term deposits. The two public officials
interfered with the process by notifying one bank of the bid information in
advance, allowing that bank to outbid the other banks. . . . In return, the
public officials received campaign contributions and favorable treatment on
loans from the bank.
The government asserted that what
the other banks lost in this scheme was a fair opportunity to bid in the
process. The court concluded, however, that this loss of opportunity was not
`property’ within the meaning of the bank and wire fraud statutes.
`Here, . . . the money had not yet been
deposited, and there is no way of knowing to which, if any, of the bidding
banks it would have gone. . . . The issue . . . is whether the competing banks'
interest in having a fair opportunity to bid for something that would become
their property if and when it was received is in itself property. . . .
`. . . .[T]o determine whether a particular
interest is property for purposes of the fraud statutes, we look to whether the
law traditionally has recognized and enforced it as a property right. . . .The competing banks' interest in
a fair bidding opportunity does not meet this test. Clearly, each bidding
bank's chance of receiving property -- the deposits if its bid were accepted --
was, at least in part, dependent on the condition that the bidding process
would be fair.
This condition, which is all that the bidding banks allegedly
lost, was thus valuable to them, but it is not a traditionally recognized,
enforceable property right. . . . Violation of this condition may
have affected each bidding bank's possible future receipt of property, but that
does not make the condition property.’
U.S. v. Henry, supra.
The Court of Appeals noted that in the Henry case, the “loss of an opportunity interest did not constitute `property’ within the meaning of the wire and mail fraud statutes,” which “govern the interpretation of § 817.034.” Dent v. State, supra. It also noted that another federal court applied the same reasoning in U.S. v. Alsugair, 256 F.Supp.2d 306 (U.S. District Court for the District of New Jersey 2003). Dent v. State, supra.
In Alsugair, the
defendant “was charged with wire fraud in a scheme to defraud English skills
testing services by allowing imposters to take English tests for foreign
students” under a statute that “made it a crime to engage in a scheme to obtain
money or property by false pretenses.” Dent
v. State, supra. The Alsugair court explained that in order
to
`”determine whether a particular
interest is property for purposes of the fraud statutes, we look to whether the
law traditionally has recognized and enforced it as a property right.”’ U.S
v. Henry, supra. Two of the hallmarks of traditional property are
exclusivity.’
U.S. v. Alsugair,
supra. The Court of Appeals noted that what was “[i]mportant to this case”
in the Alsugair court’s reasoning was
its “reiteration of the hallmarks of property, namely exclusivity and
transferability, neither of which are present in the lost opportunity of
working overtime, which is what the state sought to prove in this case.” Dent v.
State, supra.
It also noted that it had “determined that expectation
interests do not constitute property under similar definitions of property in
the theft statute.” Dent v. State, supra. In Balcor
Property Management, Inc. v. Ahronovitz, 634 So.2d 277 (Florida Court of
Appeals 1994), the court found that to have a cognizable interest in property,
“the `owner’ must be capable of having `an interest in the property upon which
another person is not privileged to infringe without consent’”. Dent v.
State, supra (quoting Florida Statutes § 812.012(5)). Section 812.012(5) defines “property of
another,” as used in Florida theft statutes, as “property in which a person has
an interest upon which another person is not privileged to infringe without
consent, whether or not the other person also has an interest in the property.”
The Court of Appeals then found that in this case,
what the state alleged was lost was the
opportunity for other deputies to work for overtime pay. This opportunity did
not belong to any one of them. It simply does not fit the definition of
property traditionally used in criminal prosecutions and specifically not used
in similar federal statutes. See U.S. v. Henry, supra.
While
Dent's manipulation of the signup system for overtime duty may have violated
the policies of the department, and may be grounds for discipline or termination,
she did not obtain `property’ within the meaning of the statute. Therefore, no
violation of section 817.034 occurred.
Dent v. State, supra.
It therefore reversed Dent’s conviction and directed that
the sentence imposed on her be vacated. Dent v. State, supra. According to the news story you can find
here, she was one of “seven jail supervisors” who were fired and charged with
fraud. For more on the impact this
decision will have on other pending and completed cases, check out the story
you can find here.
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