Fraud is everywhere, depending upon how you define the term. For example, we all pay insurance companies hundreds of dollars a month to help us out should the need arise. Yet, after taking our money for years under the guise of helping us out when that need arises–just make one claim of them and they will fight you tooth and nail.
Adding insult to injury, insurance companies will drop you as a client altogether once you’ve made a claim! Is that fraud? Well, they drop you once you’ve asked them to hold up their end of the bargain, right? The con here is more of systemic scheme, because the next insurance company then charges even more money because you’ve made a claim within the last 18 months! Sure, it’s a slow con, takes a while to unfold, but a con nonetheless. No, its probably not fraud–but it shouldn’t be legal either.
And this brings me to today’s discussion, good old fashioned scheming to defraud cases. A scheme to defraud is essentially a grand theft case of sorts, but it is defined as a “course of conduct … with intent to obtain property … by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act.” Section 817.034(4), Florida Statutes. So, let’s look at a recent example of how a scheme to defraud plays out in court.
In the case of Dent v. State (2013 WL 440117), Dent was a deputy employed by the Palm Beach County Sheriff’s Office. The state accused Dent of manipulating their overtime assignment computer system, which, when working property, fairly and equally distributes overtime assignments to the deputies requesting such. Basically, several fellow deputies noticed Dent was receiving way more than her fair share of overtime assignments, and an investigation led to an arrest for scheming to defraud. Dent lost her jury trial, and appealed her felony conviction. Ah, criminal defense attorneys coming to the rescue of a fallen deputy, you gotta love that. Frankly, I get nothing but love from law enforcement, and I’ve represented many in my 20+ years of defending criminal cases, so it makes me warm and fuzzy to see my profession helping this deputy in her time of need…I’m just saying.
The appeals court summarized the fraud accusation as follows: “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”. Id. Ok. But, read the statute again. Notice what constitutes a crime under the statute: a course of conduct with intent to obtain property. Dent’s appellate attorney argued to the appeals court 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.” Could this be true? Did every smug cum laude ivy league judge and prosecutor who touched this case miss such vital language? What about all that reading and testing in law school? Who has the time to read the law these days?
The appeals court goes on to note that the definition of property involves basically three things: real estate, material items (and rights therein), and services. As such, the appeals court found 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.” The court further noted that “the hallmarks of property, namely exclusivity and transferability, neither of which are present in the lost opportunity of working overtime,” cannot support a conviction for scheming to defraud. id.
Yes, the appeals court overturned Dent’s conviction, noting that, “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.” Amen. You see that? Not everything wrong in this world is a crime.
And, this brings me to the lesson of the day: always read the charged crime carefully. Read every word. We can’t trust the prosecutors to read every word. Dent couldn’t trust her judge to read every word (and, to the original judge’s credit, maybe Dent’s original defense attorney didn’t argue this point, who knows). I’m just saying…