Legal Pleadings:

Post Hearing Memorandum of Law


COMES NOW the Defendant, by and through his undersigned counsel, and hereby files this Post-Hearing Memorandum of Law, in support of his September 28 Omnibus Motion to Reconsider Verdict, Motion to Reconsider Motion for Judgment of Acquittal, Renewed Motion for Judgment of Acquittal, Motion for Arrest of Judgment, and Motion for New Trial (hereinafter “Omnibus Motion”), and in support thereof, states as follows:

A. Introduction
1. On October 23, this Honorable Court conducted a hearing, and received oral argument, on the Defendant’s Omnibus Motion.
2. The Court generously gave of its time and permitted the argument to be conducted for a longer period than scheduled.
3. Nevertheless, the complexity of the issues set forth in the Omnibus Motion, as further illuminated by the oral argument, suggests that, in order to be most helpful to the Court, it is appropriate that the Defendant file this Post-Hearing Memorandum of Law, addressing certain of the issues that were raised during the hearing. Those issues will be addressed, topically, below.

B. Materiality
4. The Defendant argued the State failed to prove materiality, in at least two key areas.
5. First, in the absence of establishing “the monetary value of any violation” of the statute, any representations could not be material. In response to that argument, the Court opined that the materiality issue all goes back to the “monetary value” issue.
6. The second materiality defect relates back directly to the statutory language, and elements, in F.S. §440.105(4)(b)6. That statute specifically requires that any representations “be material.” Again, if there was no loss (monetary value), such representations could not have been material. Similarly, if the correct interpretation of this confusing subsection requires that misrepresentations affect the experience rating modification factor, the state failed to prove that as well, and hence failed to prove materiality.

C. Rule of Lenity
7. Throughout the hearing, the Court and the Parties repeatedly acknowledged that the interpretation of F.S. §440.105, and in particular, subsections (4)(b)5. and (4)(b)6., were very complicated and confusing.
8. In describing the conundrum regarding the application of these statutes to the facts developed in this case, in addition to the general observations about the complexity of these statutes, the Court identified this as a “huge issue,” for which the Court was “not completely sure of all this mess” as to the correct interpretation and application of these statutes.
9. Respectfully, given the difficulty of the Court and the Parties in interpreting these statutes, it cannot be gainsaid that they embrace a level of ambiguity for which the Defendant cannot be held criminally responsible, under the rule of lenity.
10. Application of the rule of lenity is particularly appropriate in this case. “The rule of lenity is a canon of statutory construction that requires courts to construe ambiguous criminal statutes narrowly in favor of the accused.” United States v. Wright, 607 F.3d 708, 716 (11th Cir. 2010). Indeed, Florida Statutes have codified the rule of lenity.
11. F.S. §775.021, entitled, “Rules of construction,” specifically states, in subsection (1), as follows:
The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible to differing constructions, it shall be construed most favorably to the accused.

(emphasis added).
12. Here, as the Parties and the Court recognized during the hearing the worker’s compensation statute under which the Defendant was charged is clearly “susceptible to differing constructions.” Thus, in accordance with F.S. §775.021(1), “it shall be construed most favorably to the accused.” As such, respectfully, a conviction cannot lie.

D. Monetary Loss
13. As discussed during the hearing, at trial, this Honorable Court was unable to determine the amount of loss. More accurately, as also discussed during the hearing, the State failed to prove there was any loss. Indeed, the State presented no evidence whatsoever of any monetary loss.
14. No violation of F.S. §440.105 can exist in the absence of a “monetary value” applicable to the loss. F.S. §440.105(4)(f). Specifically, in the absence of proof of some monetary value, there can be no violation of the statute at all (let alone a “felony of the third degree”). In the absence of the state establishing, beyond a reasonable doubt, the existence of some measure of “monetary value of any violation of this subsection,” no crime can exist.
15. During the hearing, the Court inquired as to the definition of the term, “monetary value,” as used in Chapter 440.
16. First, as with all statutory construction analysis, the term “monetary value” must be given it’s plain, common, and ordinary meaning.
17. “As in all cases involving statutory construction, our starting point must be the language employed by Congress, and we assume that the legislative purpose is expressed by the ordinary meaning of the words used. Thus, absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” United States v. Fisher, 289 F.3d 1329, 1338 (11th Cir. 2002), citing American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982). “When a term is undefined by statute, ‘[o]ne of the most fundamental tenets of statutory construction’ requires that we give a statutory term ‘its plain and ordinary meaning.’ When necessary, the plain and ordinary meaning ‘can be ascertained by reference to a dictionary.’” Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000), citing Green v. State, 604 So.2d 471, 473 (Fla.1992); in accord State v. J.H.B., 415 So.2d 814, 815 (Fla. 1st DCA 1982)(common or ordinary meaning applies, when the term is not defined by the statute); State v. Bryant, 953 So.2d 585, 587 (Fla. 1st DCA 2007)(“Common understanding and reason must be used when analyzing a statute, and words of common usage not specifically defined must be given their plain and ordinary meaning”).
18. The Merriam-Webster Dictionary defines “monetary” as “of or relating to money or mechanisms by which it is supplied to and circulates in the economy.” Clearly, if there is no money, there can be no monetary value. Similarly, Merriam-Webster further defines “value” as “the monetary worth of something,” and further identifies it as “a numerical quantity that is assigned or determined by calculation or measurement.” (emphasis added). Thus, clearly, under the common usage of the term, “monetary value,” there must be actual proof of some numerical number. Here, the state failed to prove any numerical number.
19. In addition, the term “monetary value” is statutorily defined in Chapter 560, Florida Statutes. That statute deals with “Money Services Businesses,” which, of course, is a perfect statute to rely upon for the definition of “monetary value,” since this entire Chapter deals with money service businesses and the related financial implications. F.S. §560.103(21) states as follows:
“Monetary value” means a medium of exchange, whether or not redeemable in currency.

20. Thus, clearly, the Florida statutory definition is consistent with the common sense definition.
21. As noted, here, the state did not prove any such numerical value. Indeed, the state did not even attempt to do so, as acknowledged during the hearing.
22. In short, in the absence of evidence (beyond a reasonable doubt) from the state as to the “monetary value” of the alleged worker’s compensation fraud, there can be no crime.

E. Deliberate Ignorance / Willful Blindness
23. The Court recited factors that supported the Court’s conclusion that the Defendant was “deliberately ignorant” with regard to misconduct by A.A. Contracting Services.
24. However, respectfully, evidence that might establish, circumstantially, that a person sought to be deliberately ignorant of some type of criminality, is not sufficient to make them a principal of an identified and charged crime – unless there is proof of knowledge and intent to “avoid” knowledge of the charged crime. Here, the charged crime was making a misrepresentation to obtain worker’s compensation insurance. Respectfully, the factors pointed to by the Court could implicate state and federal tax fraud, or a variety of other criminal activity.
25. However, it was incumbent on the state to prove the Defendant was “deliberately ignorant” of the worker’s compensation misrepresentations charged. That the state completely failed to do. As such, the “deliberate ignorance” mechanism to prove “knowledge” cannot lie.
26. Moreover, a corollary to that reality is the reasonable hypothesis of innocence that attaches to the Defendant’s defense. Since the generic “misconduct” found by the Court to exist supports multiple types of criminal conduct, it cannot be said that generic misconduct applied to the charged crime.
27. During the hearing, and in response to argument by counsel for the Defendant that the deliberate ignorance (conscience avoidance) means to establish proof of knowledge must establish proof that the Defendant sought to avoid the crime charged, this Honorable Court indicated it did not believe that was the correct standard, and that the Defendant need not know what the crime was, about which he was being deliberately ignorant. Respectfully, that is not the law. If it were, the state would be permitted to seek conviction for all manner of offenses, without any proof that the Defendant was seeking to be deliberately ignorant as to that offense.
28. An examination of the 11th Circuit instruction (Exhibit A) is particularly illuminating, in confirming the “fact” about which a defendant is purportedly being deliberately ignorant must be one of the elements of the charged crime. It states:
If a Defendant’s knowledge of a fact is an essential part [i.e., an element] of a crime, it’s enough that the Defendant was aware of a high probability that the fact existed – unless the Defendant actually believed the fact didn’t exist.

“Deliberate avoidance of positive knowledge” … occurs, for example, if a defendant possesses a package and believes it contains a controlled substance but deliberately avoids learning that it contains the controlled substance so he or she can deny knowledge of the package’s contents.

(emphasis added).
29. Clearly, as this example confirms, in a drug case, the “essential part of the crime” [the element] is the presence of a controlled substance. That is an essential element. Similarly, in the context of a misrepresentation in a worker’s compensation application, the essential element is knowledge of the falsity of the representation. Thus, if the Defendant “believes [the application contained false representations] but deliberately avoids learning that it contains [false representations] so he … can deny knowledge of the [application’s] contents” – the deliberate ignorance instruction would apply. However, no such proof exists. Indeed, the state did not even attempt to present such proof.
30. Thus, it is essential the state prove the fact, about which the Defendant was purportedly deliberately ignorant, was the existence of misrepresentations in the worker’s compensation application. Since he had no knowledge of the existence of that application, or its content, and the application was submitted several months prior to his assistance, it was impossible for the state to carry their burden as to that “essential part [element] of [the charged] crime.”
31. Moreover, in addition to this failure of proof, there was no evidence presented that the Defendant ever “deliberately avoid[ed] learning” about the misrepresentations. To the contrary, whereas this Honorable Court found evidence of suspicious activities engaged in by the Defendant (see note 7, supra), that was found by the Court to be affirmative evidence the Defendant should have believed some form of criminal activity was under way. However, there was no evidence that the Defendant sought to “deliberately avoid learning” about the misrepresentations.
32. Application of the deliberate ignorance theory thus requires that the Defendant would have to have known what the insurance company was told about the payroll – but there is no proof he was. Indeed, there is no proof he even had knowledge of (1) the existence of an application (let alone its contents), or (2) that worker’s compensation certificates from the contracting firm were used by any of the subcontractors. Thus, the Defendant could not possibly be complicit in any conscience avoidance of misrepresentations to the insurance company – which is the charged crime – in the absence of that knowledge.
33. It is also essential to note this theory for substituting imputed knowledge for actual knowledge does not apply if the conduct of the defendant was a product of “negligence, carelessness, or foolishness.” Exhibit A. No more than that can be said regarding the proof offered by the state.
34. In that regard, it is especially important to note the record confirms that all statements submitted to the insurance company were submitted by D. M.O., and the last statement was submitted on October 11. The Defendant was not involved in assisting the company until, at the earliest, on or about December 30. Thus, the very “misrepresentations” that are the centerpiece (and indeed the sole piece) of the state’s theory were all committed prior to the Defendant’s involvement. Hence, he could not have been complicit in the crime charged.

F. No Proof as to Whether the Contracting Firm’s Worker’s Compensation Certificates Were Used on the Jobs

35. This Honorable Court has concluded that the checks cashed by the Defendant were delivered to “F.,” for use by the workers on the construction sites.
36. However, none of that evidence could implicate worker’s compensation misrepresentations – unless those workers were performing their services while insured by worker’s compensation certificates obtained by the contracting firm.
37. However, the state failed to put on any proof whatsoever that those workers were utilizing the policies (certifications) of the contracting firm. Not one of the General Contractors called by the state testified about, or identified which, worker’s compensation policies were used by the subcontractors they hired. Moreover, all of the general contractors had their own worker’s compensation policies.
38. In short, it is an entirely reasonable hypothesis of innocence, based on the complete failure of proof by the state, that the general contractors, and/or the subcontractors they used, had their own worker’s compensation policies, such that the contracting firm’s policies were never utilized. Since there was no proof that the contracting firm’s policies were ever utilized, the Defendant could never be complicit in any worker’s compensation misrepresentations about payroll – since those workers were not proven to be working under the contracting firm’s policies or certificates.
WHEREFORE, for all the reasons set forth in the Omnibus Motion, as illuminated by the oral argument conducted by this Court on October 23, and as further analyzed by this Post-Hearing Memorandum of Law, it is respectfully requested that the Omnibus Motion be granted, the Defendant be found Not Guilty, this Honorable Court grant a Judgment of Acquittal, this Court arrest the September 18 judgment, or grant a new trial, or any other relief this Court deems necessary and proper.