State cops, prosecutors were ready to charge U.S. Rep. David Rivera before case fell apart

Article Courtesy of The Miami Hrtald

By Scott Hiaasen and Patricia Mazzei

Published July 18, 2012

E-mails and other records show the Florida Department of Law Enforcement and the Miami-Dade state attorney’s office drafted a 52-count complaint against Congressman David Rivera, before their case unraveled amid tension between the two agencies.

campaign funds,” FDLE inspector Brett Lycett wrote in a July 5, 2011, e-mail to a prosecutor. “We believe the violations are quite evident.” 

  
But in the ensuing months — after Rivera’s lawyer poked holes in the case — the investigators’ confidence gave way to prosecutors’ increasing skepticism about the potential charges. The 52-count complaint accusing Rivera of systematic misspending of campaign funds was never filed; instead, prosecutors would write a 16-page memo explaining why they believed they could not arrest Rivera for anything.

Newly released e-mails and other records from the Rivera investigation show the increasing tension between the FDLE and the Miami-Dade state attorney’s office as the case dragged on through this past April, when prosecutors — under pressure from the FDLE to make a decision — finally dropped the high-profile case.

  
Some six months earlier, in November 2011, FDLE Commissioner Gerald Bailey urged Miami-Dade State Attorney Katherine Fernández Rundle to move more quickly, worried that the time lag would prevent them from bringing some charges against Rivera.

 
“While I appreciate the need for careful deliberation in matters such as this, I am concerned that the statute of limitations may become an issue if a decision regarding prosecution is further delayed,” Bailey wrote in a Nov. 3 letter to Rundle.

  
By then — unbeknownst to Bailey or his investigators — Rundle’s prosecutors had already offered to drop the criminal charges against Rivera if the congressman agreed to admit to civil election-law violations, e-mail records show.

  
FDLE agents grew so frustrated with the delays that they approached the state attorney in Leon County, Willie Meggs, to see if he would be willing to pursue the case, according to an internal FDLE memo from January.

  
Meggs told The Miami Herald he was contacted “informally” by an FDLE agent, but he did not discuss details of the Rivera case, out of deference to Rundle. “I didn’t want to overstep my bounds,” Meggs said.

 
Rivera, a Miami Republican who is now seeking re-election, has long denied any wrongdoing. In a statement issued through his campaign, he criticized the investigation as “frivolous.”

   
“The drafting of the complaint was an obvious attempt by investigators to intimidate, pressure and extort Congressman Rivera into a negotiated settlement,” Rivera said.

  
Rivera remains the target of a separate federal investigation by the FBI and the IRS.

  
Even after Rivera’s attorney, Michael Band, presented documents to prosecutors and investigators that he said showed that Rivera did not misspend any campaign money, the FDLE agents remained convinced that Rivera should be charged, the records show. 

“FDLE’s subsequent analysis of the information received from Mr. Rivera did not significantly alter our original conclusions,” Bailey wrote in his Nov. 3 letter to Rundle.

  
Band, a former corruption prosecutor, said it is not uncommon for police investigators and prosecutors to have differing views over how a case should be handled. “There is a natural tension between law enforcement and prosecutors,” he said. “It’s a natural and, to a certain point, healthy part of the system.”

 
Ready to charge

Miami-Dade prosecutors and FDLE agents first began scrutinizing Rivera in the fall of 2010. At the time, Rivera, a longtime state lawmaker, was campaigning for the congressional seat he won later that year. The investigation was sparked by Herald articles raising questions about Rivera’s income and his financial disclosure reports.

  
Investigators found that Rivera spent thousands of dollars a month on four different credit cards — and routinely replenished his personal accounts with money from his campaign fund. Agents traced roughly $65,000 from the campaign account that ultimately was used to cover charges on Rivera’s credit cards from 2006 to 2010, the records show.

 
To the FDLE agents, it appeared Rivera was using campaign donations to subsidize his lifestyle: to pay restaurant tabs, to cover medical bills and to pay for trips with his girlfriend.

  
The agents also believed that Rivera used campaign funds to pay for expenses that also had been billed to the state, which covers travel and other costs for lawmakers doing legislative work. They estimated that Rivera double-billed the state for more than $25,000 — an accusation Rivera repeatedly denied.

  
By July 2011, Miami-Dade prosecutors appeared in agreement with the investigators — and appeared ready to bring charges against the congressman.

  
On July 5, Band called then-prosecutor Joe Centorino offering to provide a box of records from Rivera explaining his campaign spending. “I just suggested that, if he decides to do so, he should do so very soon,” Centorino wrote in a later e-mail to FDLE investigator Lycett.

 
In the following weeks, Centorino and another prosecutor, Jose Arrojo, began writing up drafts of a criminal complaint against Rivera — mindful that, as more time lapsed, the statute of limitations could bar prosecution on some potential crimes. “The State Attorney expects to see at least a rough but completed arrest warrant sometime by the end of next week,” Arrojo wrote to investigators and fellow prosecutors in an Aug. 5 e-mail.

  
But the case against Rivera soon began to dissolve.

Accounting mystery

  
On Aug. 23, Rivera and Band met with Lycett, Centorino and prosecutor Howard Rosen to explain the congressman’s muddy finances, detailed in a 149-page spreadsheet. Though it appeared Rivera used campaign donations to pay off his personal credit cards, Rivera insisted that the monthly campaign checks did not correspond to the monthly credit-card bills. He said he always had a running debt for out-of-pocket campaign costs, allowing Rivera to reimburse himself for past debts.

  
“When I’m reimbursed, it doesn’t mean reimbursed for that month,” Rivera told investigators, according to notes of the meeting. “I was always in deficit.”

  
“Your account system is a mystery,” Centorino told him.

  
Further complicating matters: Rivera raised as much as $175,000 in donations for his campaigns to be a committeeman with the state Republican Party. Unlike campaign donations for legislative offices, committeeman money was largely unregulated, allowing Rivera to spend it on any expense deemed even vaguely political, Band argued.

  
“As a state committeeman, if he wanted to take his campaign crew to a strip club, bar, he could,” Band told the investigators, according to the meeting notes. “He may be a lousy bookkeeper, we can agree. But criminal, we can satisfy that he didn’t.”

 
(Band later complained in a letter that the meeting notes were not an accurate reflection of the meeting.) 

   
The FDLE’s Lycett spent the next several weeks examining the restaurant receipts, hotel bills and other expenses that Rivera considered political. Lycett flagged about $1,700 in charges that Rivera counted as both political expenses and legislative costs billed to the state, records show.Another $8,400 in political expenses claimed by Rivera were paid on days that Rivera received a “per diem” from the state for traveling on state business, FDLE records show.

  
A thorny law

By that time, however, prosecutors appeared ready to drop the criminal case altogether.
The attorneys ultimately concluded that they could not charge Rivera with felony theft for double-billing the state, because state law allows only misdemeanor charges for abusing state travel vouchers — with a short two-year statute of limitations that barred prosecution for many transactions. Any attempt to charge Rivera with felony theft, the prosecutors concluded, would likely get thrown out of court, according to a memo closing the case.

  
In his campaign statement, Rivera said per diem expenses were approved by state officials, and said any accusations of double-billing were “patently false.”

   
Prosecutors also considered a racketeering case based on campaign misspending, but ultimately determined that would be a novel prosecution never seen before. “Plainly stated, we were unable to find any support under Florida law for this theory,” the prosecutors wrote.

 
On Oct. 12, Arrojo e-mailed Rivera’s lawyer a proposal: If Rivera admitted to violations of state election laws, the prosecutors were willing to forgo criminal charges. “We are pretty much done with our review of this matter,” Arrojo wrote.

  
In his statement to The Herald, Rivera said he “summarily rejected” the offer.

 
“Knowing I didn’t do anything wrong, I told them I would see them in court,” Rivera said in a follow-up phone interview. “I will never allow myself to be intimidated or extorted by anyone, including the state attorney.”

  
Meanwhile, communication between the FDLE agents and the Miami-Dade prosecutors slowed to a trickle. 

  
On Oct. 26 — two weeks after the settlement offer to Rivera — Rundle told Bailey, the FDLE commissioner, that her staff was “still reviewing the facts” and had not yet decided whether to charge Rivera, FDLE records show. 

 
A week later, Bailey wrote Rundle a letter urging her to expedite the case, but the state attorney did not respond for more than two months. Rundle later told Bailey the letter was misplaced over the holidays.

  
On March 21, an FDLE supervisor, Cindy Sanz, asked Arrojo for an update but received no response. Two weeks later, she wrote again to the prosecutor: “Since I have not heard from you, I will presume that no progress has been made,” Sanz wrote. “As you and Ms. Rundle have already indicated that your office does not intend to pursue prosecution of Mr. Rivera, FDLE has now closed our investigation.”

  
Arrojo then urged the FDLE not to release any information to the press, arguing that the investigation was “still in the end stage,” e-mail records show. But an FDLE lawyer said it was difficult to consider the case an active investigation, making the records inaccessible to the public, because “nothing is happening.”On April 18, the FDLE lawyer informed Rundle’s office that the FDLE was releasing records of the investigation to reporters asking about the case. Rundle’s office formally closed the investigation that very day, releasing its 16-page memo explaining why no charges were filed.

  
“It would greatly aid prosecutors in these types of inquiries and provide clearer guidance to candidates if the law was revised,” Arrojo and Rosen wrote in wrapping up the 18-month probe. “We have been confronted with the fact that an elected official over a period of many years may essentially live off a combination of [political] contributions… while avoiding penal sanction.”