State v. Reyan

Decision Date19 August 2014
Docket NumberNo. 3D12–2468.,3D12–2468.
Citation145 So.3d 133
PartiesThe STATE of Florida, Appellant, v. Erika REYAN, Appellee.
CourtFlorida District Court of Appeals

145 So.3d 133

The STATE of Florida, Appellant,
v.
Erika REYAN, Appellee.

No. 3D12–2468.

District Court of Appeal of Florida,
Third District.

June 18, 2014.
Rehearing Denied Aug. 19, 2014.


[145 So.3d 134]


Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellant.

Jose M. Quiñon, for appellee.


Before SALTER, EMAS and FERNANDEZ, JJ.

EMAS, J.

Erika Reyan was charged by Information with a single count of racketeering in violation of section 895.03(3), Florida Statutes (2003). Reyan filed a motion to dismiss, contending the RICO prosecution was barred by the five-year statute of limitations. The trial court granted the motion and dismissed the Information against Reyan, from which the State appeals. For the reasons that follow, we affirm.

FACTS AND BACKGROUND

The relevant facts are as follows:

On September 24, 2010, Reyan (together with five co-defendants) was charged in Count One of a two-count Information with violation of the Racketeer–Influenced and Corrupt Organization Act (“RICO” or “racketeering”).1 Count One set forth the allegations of the substantive RICO Count in three segments.

General Allegations

The general allegations of Count One of the Information charged that the defendants:

[O]n or between October 1, 2002 through September 30, 2005 ... employed by or being associated with an enterprise, to wit: The Wackenhut Corporation, a legal entity, did unlawfully, knowingly and feloniously conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity, in violation of s. 895.03 and 777.011 Florida Statutes ....

The Enterprise

In further support of Count One, the State described the “enterprise” as:

The Wackenhut Corporation, that is a corporation and/or a legal entity comprised of the above named Defendants and other individuals both known and unknown to the State Attorney, who played different roles in the Enterprise. These Enterprise members associated together for the purpose of falsifying payroll documentation in order to continue to provide security officer services to Miami–Dade Transit (MDT) with respect to the Security Officer Services Contract (Contract).

The Pattern of Racketeering Activity (Predicate Acts)

By way of setting forth the “pattern of racketeering activity,” the Information contained 840 individual predicate acts comprised of: an organized scheme to defraud

[145 So.3d 135]

(in violation of section 817.034, Florida Statutes (2003)) and grand theft (in violation of section 812.014, Florida Statutes (2003)).

Each of the predicate acts was alleged to have occurred on a specific date falling within the October 1, 2002–September 30, 2005 timeframe, and the State alleged that each charged defendant participated in at least two incidents of racketeering activity. None of the 840 predicate acts named the individual defendants who participated in that particular predicate act and instead named the Enterprise (Wackenhut) generally.

Significantly, nowhere in Count One's general allegations, description of the Enterprise, or any of the 840 predicate acts, did the State allege that Reyan or her co-defendants engaged in a conspiracy to commit RICO. Nor does Count One allege that the defendants conspired to commit any of the predicate acts that comprise the pattern of racketeering activity.

By contrast, Count Two of the Information alleged that one of the co-defendants engaged in a conspiracy (together with uncharged co-conspirators) to commit RICO in violation of section 895.03(4), Florida Statutes (2003). Reyan, however, was not charged in Count Two.

Detective David Colon's affidavit (“the Affidavit”) in support of the arrest warrant for Reyan was attached to the information. The Affidavit described a scheme that arose out of a Security Officer Services Contract (the “Contract”) between Wackenhut and Miami–Dade Transit (“MDT”). The Contract required Wackenhut to provide security services and personnel to man specific locations within MDT, and Wackenhut's procedures required security personnel to log their hours worked in a sign-in register. Wackenhut utilized the sign-in registers to submit its hours and corresponding invoices to Miami–Dade County (“the County”).

As described in the Affidavit, the County conducted an audit of the Contract and the work performed, covering a three-year period from October 2, 2002 through September 30, 2005. The audit revealed that Wackenhut overbilled the County a minimum of $76,657.07 during this period and submitted at least 3,517.51 hours for security services never performed. The audit and resulting investigation formed the basis for the State's allegations that Wackenhut and its employees engaged in a pattern of racketeering activity to perpetrate a scheme to defraud the County by falsifying sign-in registers, generating false payroll and monthly invoices, and receiving monies for services not performed.

The Affidavit indicated that Reyan began working for Wackenhut in 1998 as secretary and assistant to the project manager.2 Reyan was primarily responsible for preparing payroll, which included generating the invoices that would be submitted to the County for payment. Sign-in registers were submitted from the various posts to Reyan, who would then input the information in Wackenhut's payroll and invoice computer program.

Pursuant to the Affidavit, the investigation also revealed that:

• Reyan was present during conversations in which it was discussed that security personnel were leaving their posts early but were submitting paperwork (and receiving payments) for entire shifts.

[145 So.3d 136]

• Reyan knew how many hours needed to be billed for each post; when registers were incomplete or contained discrepancies, she inquired and ultimately received names in order to complete the registers and bill the County.

• From October 1, 2002 through December 31, 2003, Reyan prepared invoices to be submitted to the County. These invoices contained 309 fraudulent entries, resulting in a minimum of 1,968 hours for security services never performed and a minimum overbilling of $39,665.74.

• Reyan took a leave of absence from Wackenhut in February 2004. She resigned from her position in the Miami office on May 21, 2004 and thereafter accepted a position with Wackenhut in Atlanta. Reyan trained her replacement in one day; however, after Reyan left the Miami office, her replacement would sometimes contact Reyan by telephone.

Reyan contended that the substantive RICO prosecution was barred by the five-year statute of limitations.3 Reyan pointed out that the last predicate act attributable to her in the charging document occurred on December 28, 2003, which was the date of the last billing invoice transaction for which she was accused of being an individual participant. This act occurred almost seven years before the filing of the Information on September 24, 2010. Reyan argued that the State could not rely on the acts of the other co-defendants in the enterprise to satisfy the limitations period since the State did not charge Reyan with a RICO conspiracy.

The State argued in response that the statute of limitations did not commence from the date of the last act personally performed by the defendant, but from the date of the last act performed by the enterprise, so long as the defendant remained associated with the enterprise at that time.

The trial court held a hearing on the motion to dismiss, and at that hearing the parties stipulated that Reyan stopped advising her replacement as of June 2004 and that Reyan had no contact with the Miami office after that date. The State argued nevertheless that Reyan remained a part of the enterprise, that the enterprise engaged in acts which constituted an ongoing scheme to defraud, and that this scheme continued through September 30, 2005. Reyan argued that the ongoing scheme to defraud was wholly dependent on the grand theft charges, which were not continuing offenses, and therefore the statute of limitations should be measured from December 28, 2003, the date when Reyan engaged in the last act alleged against her.

In granting the motion to dismiss, the trial court found that the State had to commence the prosecution against Reyan within five years of her last personal commission of a predicate act. It was undisputed that the last billing invoice transaction completed by Reyan occurred on December 28, 2003. The court found that the five-year limitations period as to the substantive RICO offense against Reyan expired on December 28, 2008. Because the State did not file the substantive RICO against Reyan until September 24, 2010, the trial court dismissed the charge against Reyan.

THE RELEVANT STATUTORY PROVISIONS

Sections 895.03(3) and

[145 So.3d 137]

(4), Florida Statutes (2003),4 referred to as substantive RICO and RICO conspiracy, respectively, provide:

(3) It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.

(4) It is unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (1), subsection (2) or subsection (3).

The term “racketeering activity” as defined in section 895.02(1), Florida Statutes (2003) “means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit” any crime chargeable by indictment or information under specifically enumerated...

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6 cases
  • De La Osa v. State
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 2015
    ...under section 895.03(3) “by proving that defendants conspired to commit predicate acts of racketeering activity.” State v. Reyan, 145 So.3d 133, 139 (Fla. 3d DCA 2014). In this case, it is necessary to delve into conspiracy law to decide whether the State proved the requisite predicate acts......
  • Beasley v. State
    • United States
    • Court of Appeal of Florida (US)
    • January 20, 2023
    ...acts, but upon an agreement to participate in the affairs of the criminal enterprise through a pattern of racketeering activity." Reyan, 145 So.3d at 139. is correct that the predicate acts of theft cannot support his conviction for conspiracy to commit racketeering. Taking alligator eggs f......
  • Zeno v. State
    • United States
    • Court of Appeal of Florida (US)
    • December 17, 2021
    ......State, 158 So.3d. 712, 731-32 (Fla. 4th DCA 2015) (affirming the. defendant's conspiracy to commit RICO conviction, but. reversing the defendant's RICO conviction, and explaining. the difference between RICO and conspiracy to commit RICO);. State v. Reyan, 145 So.3d 133, 139 (Fla. 3d DCA. 2014) (explaining the difference between a RICO and a. conspiracy to commit RICO charge). . . ......
  • Zeno v. State
    • United States
    • Court of Appeal of Florida (US)
    • December 17, 2021
    ...the defendant's RICO conviction, and explaining the difference between RICO and conspiracy to commit RICO); State v. Reyan , 145 So. 3d 133, 139 (Fla. 3d DCA 2014) (explaining the difference between a RICO and a conspiracy to commit RICO ...
  • Request a trial to view additional results
2 books & journal articles
  • Charging a crime, arraignment and pleas
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • April 30, 2021
    ...describes a method by which a substantive RICO can be charged and proven. The latter describes a RICO conspiracy offense. State v. Reyan, 145 So.3d 133 (Fla. 3d DCA 2014) Alleging that defendant “discharged a firearm or destructive device” while committing a burglary of a vehicle is a suffi......
  • Crimes
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • April 30, 2021
    ...describes a method by which a substantive RICO can be charged and proven. The latter describes a RICO conspiracy offense. State v. Reyan, 145 So.3d 133 (Fla. 3d DCA 2014) Conspiracy to commit murder is an “offense resulting in death” for statute of limitations purposes, and thus the 1996 am......

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