Not
final until disposition of timely filed motion for rehearing.
Appeals
from the Circuit Court for Miami-Dade County Lower Tribunal
No. 13-20190, Robert J. Luck, Judge.
Kuehne
Davis Law, P.A. and Benedict P. Kuehne and Michael T. Davis,
for appellant/cross-appellee.
Pamela
Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellee/cross-appellant.
Before
SUAREZ, EMAS, and LOGUE, JJ.
SUAREZ, J.
Steven
Bateman ("Bateman"), appeals from a final order
denying in part and granting in part his motion for judgment
of acquittal. The State of Florida cross- appeals from that
part of the trial court's order granting Bateman's
motion for judgment of acquittal on Count 1. We affirm in all
respects.
Bateman
was the subject of a grand jury indictment which arose out of
a Miami-Dade County ethics investigation into his actions
while Mayor of Homestead. Bateman was investigated for
attempting to persuade Miami-Dade County to approve and
expedite the permitting process for a new pumping station in
Homestead without disclosing that he was being paid by a
private company that wanted the permitting expedited. The
five-count grand jury indictment charged Bateman with
unlawful compensation or reward for official behavior by a
public servant, unlawful compensation for exerting influence,
exploitation of his official position, acquiring a financial
interest in conflict with his official position, and illegal
lobbying.
The
story begins with Community Health of South Florida
("CHI"), a nonprofit organization that wished to
build a children's crisis center in Homestead. The new
building was to be constructed on an empty lot owned by CHI.
The new building was required to be connected to one of the
City's sewer pump stations. But the pump station adjacent
to the CHI-owned lot was over forty years old, had cracks in
it, could not properly handle any new connections, and was
subject to an EPA moratorium on any new connections.
Miami-Dade's Department of Environmental Resources
Management ("DERM") would thus not issue a permit
until the City upgraded the pump, despite CHI's securing
funding from the County for the crisis center project.
Without the permit CHI could not construct the center on the
property it owned. The pump station issue had been before the
Homestead City Council long before Bateman was hired by CHI,
and Homestead had approved money to upgrade the station in
2012. The problem was that the pump station permit approval
process through DERM and the County was taking too long and
CHI wanted the process expedited so construction could begin.
Testimony
at trial was that Bateman, then Mayor of Homestead, contacted
CHI, met with its principals and entered into a consulting
agreement to act as a private consultant to advise and assist
CHI with its expansion and multiple construction projects.
After Bateman was hired by CHI, he frequently consulted with
the City's public works director to discuss the status of
the pump station in his capacity as Mayor of the City of
Homestead, but did not disclose he was also acting as a
consultant for CHI on that project. Bateman's problems
escalated when he arranged and attended a meeting with the
Miami-Dade County Mayor and Deputy County Mayor during which
he discussed the status of the pumping station and his
concern with DERM's delay in approving and issuing the
needed permits. He asked the County to expedite the
permitting process. Bateman had a follow-up conversation with
the Deputy County Mayor on the subject. During those
interactions and meetings, Bateman presented himself as
appearing in his capacity as Mayor of Homestead and did not
disclose his contractual relationship with CHI or that CHI
had an interest in the permitting process being expedited.
Furthermore, despite being legally required to do so, Bateman
never registered as a lobbyist for CHI. Bateman then billed
CHI for eight hours, representing the two meetings with the
County Mayor and Deputy Mayor and for meeting with the
Homestead city engineer to prepare for the county meeting.
Two days later, he billed CHI for six hours representing a
phone conference with the County Deputy Mayor and the
Homestead city engineer.
Subsequent
to the ethics committee's investigation into his actions,
the Grand Jury rendered a five-count indictment charging
Bateman with Count 1, unlawful compensation for official
behavior in violation of section 838.016(1), Florida Statutes
(2013); Count 2, unlawful compensation for exerting influence
in violation of section 838.016(2), Florida Statutes (2013);
Count 3, exploitation of official position in violation of
section 125.69, Florida Statutes, (2013), and Miami-Dade
County Code 2-11.1(g); Count 4, acquiring a financial
interest in conflict with official actions, in violation of
section 125.69, Florida Statutes (2013), and Miami-Dade
County Code 2-11.1(o); Count 5, illegal lobbying in violation
of section 125.69, Florida Statutes, (2013) and Miami-Dade
County Code 2-11.1(s). The State dismissed Count 3
(exploitation of official position) and Bateman went to trial
on the remaining counts. The jury found him guilty of Count 1
(unlawful compensation for official behavior), Count 2
(unlawful compensation for exerting influence), and Count 5
(illegal lobbying) and acquitted him of count 4 (acquiring a
financial interest in conflict with official actions). On a
post-verdict motion for new trial and judgment of acquittal
on all counts, the trial court denied Bateman's motion
for new trial, granted judgment of acquittal on Count 1 and
denied acquittal on Counts 2 and 5. The State sought
rehearing of the acquittal on Count 1, which was denied. The
court sentenced Bateman to twenty-two (22) months on Count 2
and sixty (60) days on Count 5, to run concurrently. Bateman
appeals from the final order denying in part and granting in
part his motion for judgment of acquittal and the State
cross-appeals from that part of the trial court's order
granting Bateman's motion for judgment of acquittal on
Count 1. We affirm in all respects.
COUNT
1. The State cross-appeals the trial court's
grant of judgment of acquittal on Count 1, unlawful
compensation or reward for official behavior in violation of
section 838.016(1), Florida Statutes (2013).[1] Our standard for
reviewing a motion for judgment of acquittal is de novo.
Reynolds v. State, 934 So.2d 1128, 1145 (Fla. 2006).
Subsection
(1) of this statute makes it unlawful for a public official
to corruptly[2] represent that some present or future act
is within his or her official authority to accomplish and
then agree to perform that act in exchange for pecuniary
gain. Bateman asserted in his motion for judgment of
acquittal that the State had not presented sufficient
evidence that he acted corruptly when he entered into the
consulting contract with CHI, and that he represented to CHI
that his actions on its behalf were within his official
discretion or in performance of a public duty. The trial
court in its detailed order granting acquittal of this count
examined the evidence presented, thoroughly parsed the
statute, and delineated exactly what the State was required
to prove based on section 838.016(1) and the Florida Standard
Jury Instruction (Criminal) 19.4.
In
granting acquittal, the trial court determined that the State
did not present evidence such that a rational trier of fact
could find, beyond a reasonable doubt, that Bateman
represented to CHI that obtaining the necessary permit was
within his official discretion or public duty to perform, or
that there was any evidence from which the jury could
reasonably conclude that Bateman represented that he would
"sell his vote or twist the City staff's arm to
approve the water pump." In other words, there was no
evidence from which a reasonable trier of fact could
determine that Bateman represented to CHI that obtaining the
permit was within his power as Mayor to accomplish. We have
similarly examined the record and conclude that the State did
not present evidence that Bateman's acts, in his capacity
as Mayor, were the kind of official discretionary or duty
bound acts that fell within the proscriptions of section
838.016(1), i.e., that Bateman represented to CHI that he had
the official discretion ...