IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

_____________________________

APPELLATE CASE NO:

_____________________________

BLAIR L. WRIGHT,

Petitioner,

vs.

OFFICE OF THE STATEWIDE PROSECUTOR,

STATE OF FLORIDA,

Respondent.
__________________________________________________________________

PETITION FOR A WRIT OF PROHIBITION -

AN APPEAL FROM THE CIRCUIT COURT OF THE SEVENTEENTH
JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA
TRIAL COURT CASE NO. 13-015742 CF 10A

__________________________________________________________________

Crane Johnstone, Esq. Robyn L. Sztyndor, Esq. Claudia Pastorius, Esq.

Fla. Bar No.: 616060 Fla. Bar No.: 0089253 Fla. Bar No. 0113597
2850 NE 55ft Place͒ 2850 NE 55ft Place 720 E. New Haven Ave.
Ft. Lauderdale, FL 33308͒ Ft. Lauderdale, FL 33308 Suite 10
cranejohnstone@ ͒(786) 395-1824 Melbourne, FL 32901
gmail.com rls409@nyu.edu (321) 557-2643
claudiapastorius@
gmail.com

Attorneys for the Petitioner

 TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................................................... i - ii

TABLE OF AUTHORITIES ............................................................................. iii - v

STATEMENT OF THE CASE ................................................................................ 1

THE BASIS FOR INVOKING JURISDICTION ................................................... 2

I. STATEMENT OF FACTS ........................................................................... 3

The State’s Extortionate Settlement Demand

In the Companion Civil Case………………………………………………..4

The June 21, 2018 Hearing………………………………………………….5

Rebecca Zaraya & Adam Skolnik, Esq. Testimony……………………...…8

II. LEGAL ARGUMENT ................................................................................. 19

I. THE BURDEN OF PROOF UNDER FLA. R. CRIM. P. 3.190(b) RESTS ON

THE STATE OF FLORIDA TO ESTABLISH JURISDICTION OF
CRIMINAL CHARGES WITHIN THE REQUISITE STATUTE OF
LIMITATIONS ............................................................................................. …20

II. THE STATE CANNOT RELY ON ITS INFORMATION AND A

WRITTEN TRAVERSE TO MEET ITS EVIDENTIARY BURDEN OF
PROOF TO ESTABLISH SUBSTANTIAL, COMPETENT EVIDENCE TO
DEFEAT A FLA. R. CRIM. P. 3.190(b) MOTION TO DISMISS. ................ 21

III. THE STATE CANNOT PROCEED ON A “CONTINUING OFFENSE”

THEORY OF THEFT AND IGNORE THE DATES OF PAYMENTS MADE
BY THE ALLEGED CONSUMER “VICTIMS” TO ARTIFICALLY EXTEND
TIME-BARRED CHARGES INTO THE FIVE-YEAR STATUTE OF
LIMITATIONS.. ............................................................................................... 26

IV. REBECCA ZARAYA CANNOT SERVE AS A PREDICATE INCIDENT

UNDERLYING A SUBSTANTIVE RICO CHARGE BECAUSE IT IS

i
 UNDISPUTED THAT SHE NEVER MET THE DEFENDANTS, THEREBY
NEGATING THE ELEMNT OF DIRECT PARTICIPATION. ...................... 29

V. THE STATE IS COLLATERALLY ESTOPPED FROM PURSUING ANY

CHARGES REGARDING REBECCA ZARAYA OR ANY CONSUMER
WHO COMPLAINED AS A RESULT OF THE STATE’S INJUNCTION &
RECEIVERSHIP ORDER.…………………………………………………....31

VI. THE STATE SHOULD WELCOME DISMISSAL OF ALL

CHARGES WITH PREJUDICE AS SUCH A RULING IS IN CONFORMITY
WITH JURISDICTIONAL MANDATES UNDER FLORIDA LAW.……….33

CONCLUSION ...................................................................................................... 35

CERTIFICATE OF SERVICE .............................................................................. 36

CERTIFICATE OF COMPLIANCE ..................................................................... 37

ii
 TABLE OF AUTHORITIES

Akers v. State, 370 So. 2d 81, 83 (Fla. 1st DCA 1979) ............................... 20

Berger v. United States, 295 U.S. 78, 88 (1935) ......................................... 34

Bone v. State, 651 So.2d 774, 776 (Fla. 3d DCA 1995).............................. 28

Cheffer v. Judge, Division “S,” 15th Judicial Circuit,

614 So.2d 632 (Fla. 4th DCA 1993) ................................................... 3

Cochran v. State, 711 So. 2d 1159 (Fla. 4th DCA 1998)............................ 33

Escalante v. State, 165 So. 3d 839 (Fla. 2d DCA 2015). ............ 1, 20, 23, 24

Fair v. Kaufman, 647 So.2d 167 (Fla. 2d DCA 1994). ............................... 22

Fleming v. State, 524 So.2d 1146, 1146 (Fla. 1st DCA 1988). ................... 20

Madry v. State, 969 So.2d 507 (Fla. 1st DCA 2007) .................................. 21

Matos v. State, 961 So.2d 1077, 1077 (Fla. 4th DCA 2007)....................... 20

McPhee v. State, 254 So.2d 406 (Fla.1st DCA 1971) ................................. 31

Mead v. State, 101 So.2d 373, 375 (Fla. 1958) ........................................... 20

Neal v. State, 697 So. 2d 903 (Fla. 2d DCA 1997) ....... 1, 2, 3, 20, 21, 22, 23

Nelson v. State, 855 So.2d 132 (Fla. 4th DCA 2003).................................. 32

O’Malley v. Mounts, 590 So.2d 437, 438 (Fla. 4th DCA 1997) ................. 28

Outreach Housing, LLC v. Office of the Attorney General,

221 So.3d 691 (Fla. 4th DCA 2017). .............................................. 4, 5

Pontius v. State, 932 So. 2d 618, 620 (Fla. 4th DCA 2006) ....................... 20

Reino v. State, 352 So.2d 853 (Fla. 1977) ................................................... 28

iii
 Rosen v. State, 757 So.2d 1236 (Fla. 4th DCA 2000). ................................ 27

Salcedo v. Asociacion Cubana, Inc.,

368 So.2d 1337, 1339 (Fla.3d DCA 1979) ....................................... 31

Soto v. State, 892 So.2d 1290 (Fla. 4th DCA 2008).................................... 20

State v. Belien, 379 So.2d 446 (Fla. 3d DCA 1980).................................... 31

State v. Brugman, 588 So.2d 279 (Fla. 2d DCA 1991) ............................... 21

State v. Diaz, 814 So. 466 (Fla. 3d DCA 2002) .......................... 2, 25, 26, 27

State v. King, 275 So.2d 274, 276 (Fla. 3d DCA 1973) ........................ 24, 27

State v. King, 282 So.2d 162, 164 (Fla. 1973)............................................. 20

State v. Mack, 637So.2d 18 (Fla. 4th DCA 1994) ....................................... 28

State v. Reyan, 145 So.3d 133 (Fla. 3d DCA 2014) .................................... 29

Toussie v. United States, 397 U.S. 112, 114-115 (1970) ............................ 27

Turtle 906 Lake Assocs., Ltd. v. Third Financial Services, Inc.,

518 So.2d 959 (Fla. 1st DCA 1988 ................................................... 22

U.S. v. Persico, 832 F.2d 705 (2d Cir. 1987) .............................................. 29

United States v. Habig, 390 U.S. 222, 227 (1968) ...................................... 27

United States v. Scharton, 285 U.S. 518, 522 (1932).................................. 27

OTHER AUTHORITIES:

Fla. R. Crim. P. 3.190(b) ............................................1 - 6, 16 -24, 26, 32, 34

Fla. R. Crim. P. 3.190(c)............................................................................ 1, 6

§ 895.05, Fla. Stat. .................................................................. 5, 12, 13, 14, 29

iv
 § 90.801, Fla. Stat................................................................................ 6, 21, 22

§ 812.01(1)(2)(c)(1), Fla. Stat............................…….....……………8, 26, 27

v
 STATEMENT OF THE CASE

Petitioner appeals the trial court’s August 30, 2018 Order Denying the

Defendant’s Rule 3.190(b) Motion to Dismiss (hereinafter “Order”). App.2189-91.

The Order is legally insufficient on its face and fails to comply with the mandates of

Florida law. Specially, the Order fails to set forth any findings of fact to substantiate

that the State has met its burden of tendering substantial, competent evidence to

establish jurisdiction of the charges. App.2189-91.

The trial court incorrectly applied a Fla. R. Crim. P. Rule 3.190(c)(4) standard

to a Fla. R. Crim. P. 3.190(b) motion to dismiss challenging jurisdiction. App.2191.

Florida law does not permit the trial court to deny a Rule 3.190(b) motion to dismiss

for lack of jurisdiction because the State filed a Traverse or relied on its own

Information. Neal v. State, 697 So.2d 903, 905-06 (Fla. 2d DCA 1997). Because the

State failed to tender any admissible evidence at the June 21, 2018 hearing, the trial

court cited to the State’s Second Amended Information and Traverse in its Order.

App.2190. The trial court incorrectly concluded that because there are issues of

disputed fact, it could not grant the Defendants’ Rule 3.190(b) motion to dismiss.

App.2191.

Under Florida law, the State cannot fail to present any evidence at a hearing

on a Rule 3.190(b) motion to dismiss and still prevail. Escalante v. State, 165 So.3d

839, 840 (Fla. 2d DCA 2015). “When a criminal defendant challenges his

1
prosecution as untimely commenced, the State has the burden to establish that the

prosecution is not barred by the statute of limitations.” Id. at 840. In order to defeat

a Rule 3.190(b) motion to dismiss, the State was required to tender admissible

evidence at the June 21, 2018 hearing, upon which the trial court must “articulate a

factual or legal basis supporting” the State met its burden of proof that the charges

were timely commenced. Id. at 840.

Because the State tendered zero evidence at the June 21, 2018 hearing, and

simply requested the trial court take judicial notice of the court record, the State

cannot defeat the Defendants’ Rule 3.190(b) as a matter of law. Neal v. State, 697

So.2d 903, 904-06 (Fla. 2d DCA 1997). Even if the State could rely on a Traverse

and its Second Amended Information to defeat a Rule 3.190(b) motion to dismiss,

the State’s operative Information is fatally flawed under Florida law.

The State’s Second Amended Information pleads a “continuing offense”

theory of theft in an attempt to extend the time-barred charges into the five-year

statute of limitations. App.1427-35. The State’s continuing offense theory of theft

contained within the Second Amended Information is unsupported by Florida law.

State v. Diaz, 814 So.2d 466, 467 (Fla. 3d DCA 2002).

THE BASIS FOR INVOKING JURISDICTION AND NATURE OF RELIEF

SOUGHT

Petitioner invokes the jurisdiction of this Honorable Court pursuant to Florida

Rules of Appellate Procedure 9.030(b)(3) & 9.100 and respectfully requests that this
2
Court issue a writ of prohibition ordering dismissal of the Second Amended

Information and discharge the Petitioner. “Prohibition is an appropriate method by

which a criminal defendant who asserts that [his] prosecution is barred by the statute

of limitations may challenge the trial court’s jurisdiction to go forward.” Neal v.

State, 697 So.2d 903, 904 (Fla. 2d DCA 1997)(citing Cheffer v. Judge, Division “S,”

15th Judicial Circuit, 614 So.2d 632, 633 (Fla. 4th DCA 1993)).

I. STATEMENT OF FACTS

Petitioner Wright was charged with four (4) counts predicated on grand theft

by the State of Florida on November 1, 2013. Defendant Wright was arrested on

November 7, 2013, and again on December 23, 2013 while he was baking Christmas

cookies with his family. App.374, 479-82, 934-35, 1193-1219, 1245-51. The alleged

instances of grand theft that underlie the State’s charges occurred squarely outside

the five-year statute of limitations.

In an effort to remedy this jurisdictional defect, the State pled a “continuing

offense” theory of grand theft, predicating this action on time-barred charges. The

Defendant challenged the State’s Second Amended Information under Fla. R. Crim.

P. 3.190(b) claiming the conduct that gives rise to the State’s actions falls well

outside the governing statute of limitations, and the court lacks jurisdiction to

adjudicate the charges.

3
 In an attempt to defeat the Defendant’s Rule 3.190(b) motion to dismiss, the

State filed a Traverse. App.83. The State also falsely stated the burden of proof rests

on the Defendants to prove the action was not timely commenced. App. 90, 204,

209, 212, 390, 351, 352, 353, 652, 760. Over the State’s objections, the trial court

held a hearing on June 21, 2018 on the Defendants’ Rule 3.190(b) motion to dismiss

whereby the Defendant presented sworn testimony from the General Counsel of

Global Client Solutions Bank (“GCS”) to testify to the last date of payment for each

of the consumers that serve as predicate acts in the State’s case. As testified to by

the GCS General Counsel, Brent Hampton, Esq., each of those payments fall

squarely outside the five-year statute of limitations. App. 654, 658, 659, 756–811.

Thus, without employing a continuing offense theory of theft, the action is time-

barred as a matter of law.

The State’s Extortionate Settlement Demand In the Companion Civil Case

The present action was referred to the Statewide Prosecutor’s Office to pursue

criminal charges in tandem with a related civil case initiated by the Office of the

Attorney General on October 13, 2008. 1 The same consumer complaints that

1
The State’s companion civil “consumer protection” case was commenced on
October 13, 2008, and is predicated on the same consumers that underlie the State’s
grand-theft and RICO charges in this criminal case. Despite knowing that the
conduct that gives rise to the present criminal charges existed as of October 13, 2008
when the OAG filed its consumer protection case, the State waited 5 years & 18
days to file criminal charges against the Defendants. See The Office of the Attorney
4
underlie the State’s civil consumer protection case serve as predicate acts in this

criminal action.

In the companion civil case, the Defendant was given a settlement option to

pay $350,000 to the Office of the Attorney General, Consumer Protection Division,

to settle a civil FDUTPA case or the matter would be referred over for criminal

prosecution. Wright refused to succumb to the State’s extortionate demand, and the

State then filed charges. The unlawful judgment from the companion civil case was

appealed and adjudicated by this Court in the Defendants’ favor on July 12, 2017.

See Outreach Housing, LLC v. The Office of the Attorney General, 221 So.3d 691,

698 (Fla. 4th DCA 2017).

Upon referral from the OAG’s office, the State charged the Defendants with

Racketeering under section 895.03(3), Florida Statutes, Conspiracy to Commit

Racketeering under section 895(4), Florida Statutes, and Grand Theft under section

812.01(1)(2)(c)(1), Florida Statutes. The State waited more than 5 years and 18 days

after the OAG filed the companion civil case to charge the Defendants and, thus, the

conduct that gives rise to these charges is time-barred.

The June 21, 2018 Hearing

General v. Outreach Housing, LLC, bearing Case No. CACE-08-049280 currently

pending in Broward County, Florida.
5
 At the June 21, 2018 hearing to adjudicate the Defendants’ Rule 3.190(b)

motion to dismiss, the State tendered zero admissible evidence other than requesting

the trial court take “judicial notice of the trial court record,” the State’s Second

Amended Information, and the State’s Traverse. App.374, 934. None of these

submissions from the State are evidence, because these documents are all

inadmissible hearsay under section 90.801, Florida Statutes. Due to the State’s

failure to tender any evidence at the June 21, 2018 hearing, the trial court had no

admissible evidence submitted by the State to adjudicate the Rule 3.190(b) motion

to dismiss in the State’s favor. App.206-11, 343, 366-68.

The trial court rendered a legally deficient Order. App.2189-91. The trial court

ignored the requirement that it make findings of fact specific to the statute of

limitations in its Order. App.2191. Instead, the trial court improperly substituted a

Rule 3.190(c)(4) standard in its Order, and simply held “there are disputed issues of

fact.” App.2191. The Court held that it will “not put its self in the place of the jury

in order to make findings of fact.” App.2191.

Regardless, when a Defendant raises a Rule 3.190(b) jurisdictional challenge to

the State’s untimely commencement of criminal charges, the trial court is required

to make findings of fact that the State submitted substantial, competent evidence that

the alleged crime occurred within the requisite statute of limitations. In the present

6
matter, the trial court made no such findings because the State tendered no evidence

that permitted the trial court to do so. App.2190-91.

Instead, the Defendants alone called live witnesses at the June 21, 2018

hearing. The Defendants first called GCS General Counsel, Brent Hampton, Esq.

who testified to the last date that each consumer in named in the State’s charges

rendered payment to the Defendants’ company, Outreach Housing, LLC. App.773-

816. Brent Hampton, Esq. testified that the most recent date of payment made by

each of the alleged victims are as follows:

Alleged Victim Date of Last Within 5-Year

Payment SOL
Ulysses Grant 07/23/2008 NO
Ulda Cher 08/21/2008 NO
Yolanda Brewer Never Paid NO
Elda Perez 06/26/2008 NO
Judith Hines 07/30/2008 NO
Ethelina Irving 08/07/2008 NO
Marcia Taylor 07/01/2008 NO
Marcia Taylor 07/16/2008 NO
Dorel Hamilton 09/29/2008 NO
Clovis Nelson 09/16/2008 NO
Angelique Terrelonge 07/21/2008 NO
Patrice Spychalla 08/04/2008 NO
Selwyn Byer 09/03/2008 NO
Rita Green 07/30/2008 NO
F. English Campbell 09/15/2008 NO
Marie Sauvuer 09/05/2008 NO
Magalie Benjamin Never Paid NO
Carmon Arocho 10/03/2008 NO
J. LaFleur 09/04/2008 NO
M. Arugu 10/16/2008 NO
J. Johnson Lynch 09/17/2008 NO

7
App.722-51, 773-806.

The last date of payments to the Defendants’ company for each of the alleged

victims all fall squarely outside the five-year statute of limitations. App.722-51, 773-

806. Even Arugu’s last payment on October 16, 2008 is 15 days outside the five-

year statute of limitations, which began on November 1, 2008 through November 1,

2013. Thus, without the State improperly extending these payments into the statute

of limitations through an unlawful “continuing offense” theory of theft, the charges

are time-barred. App.798.

Rebecca Zaraya & Adam Skolnik, Esq. Testimony

The Defendants’ then called a consumer of Outreach Housing, Rebecca

Zaraya, and her attorney Adam Skolnik, Esq. who rendered legal services to Ms.

Zaraya. App.812-58, 860-64, 865-98, 923-33. These live defense witnesses testified

that all contracted services were rendered to the client, Ms. Zaraya, when she was an

Outreach Housing client for a total of 14-days. App.812-58, 860-64, 865-98, 923-

33.

In 2009, the OAG contacted the Office of Financial Regulation (“OFR”) to

open a meritless corollary civil case seeking an injunction and receivership to

forcibly close Outreach Housing. App.295-313. This court ordered injunction

prevented Outreach from further providing services to clients after January 28, 2009.

8
App.295-313. Ultimately, this frivolous OFR case was dismissed in Wright’s favor

on January 11, 2016. App.018.

On January 28, 2009, the OFR obtained an injunction against Outreach

Housing. App.295-313. This injunction closed the company and shut-down the

Outreach phones and website. App.881. After being unable to contact Outreach as a

result of the State’s receivership, many consumers filed complaints with the OAG.

App.881, 1072-87, 1088-1136. The State did not disclose that the State’s injunction

was the reason Outreach was closed, permitting these upset clients to believe

Outreach had voluntarily closed without notice to its clients. One of these confused

consumers was Rebecca Zaraya. App.881.

On January 31, 2009, Ms. Zaraya filed an internet complaint with the OAG

complaining she could not get in touch with anyone at Outreach Housing. App.282,

901, 923, 928-29. Zaraya complained that the Outreach Housing phone number rang

with no answer, the website was down, and the building was locked. Zaraya had only

been a client for 14 days at the time Outreach Housing was closed on January 28,

2009 by the State of Florida, Office of Financial Regulation.

MR. JOHNSTONE: Is it true at that time when you filed the

complaint and when you gave sworn testimony in this case, you did
not file a complaint with the State against Outreach because they
were stealing money from you or committing fraud or engaging in
deceptive practices, the reason you filed the complaint is because
you could not get anyone on the phone and you were angry?

MS. ZARAYA: That's exactly right.

9
 MR.JOHNSTONE: So for the record, is this your complaint where
you say, "This is why I contacted the Outreach Housing
Organization, but it seem I can't even reach them.· I'm unable to
get them on the phone.· They won't return my calls"?

MS. ZARAYA: Yes.

App.865-934.

The State of Florida never informed Zaraya that the State’s own court ordered

injunction entered on January 28, 2009 by the Honorable Peter Weinstein, was the

sole reason Zaraya could not get in contact with Outreach. App.282, 901, 923, 928-

29. The State dishonestly allowed Zaraya, and numerous other Outreach clients, to

falsely believe the Defendants voluntarily closed without notice, abandoning the

clients. App.881, 1072-87, 1088-1136.

The State even enjoined Outreach Housing from informing clients of the

State’s court ordered injunction and receivership.

MR. JOHNSTONE: When you called the offices of Outreach

Housing and you actually drove out there at one point --

MS. ZARAYA: I did.

MR. JOHNSTONE: -- did you know the reason they were not
returning your phone calls is because the State of Florida had
obtained an emergency order granting an injunction and shut the
office down? Did you know that?

MS. ZARAYA: No, I didn't know that.

MR. JOHNSTONE: Did the State ever tell you that?

10
 MS. ZARAYA: No, I didn't know that. I didn't know.

App.1044-62, 1072-87, 1088-1136.

As testified to by Adam Skolnik, Esq. at the June 21, 2018 hearing, despite

Zaraya being a client for only 14 days prior to the State’s closure of Outreach, Zaraya

received substantial litigation support services from Outreach Housing. App.458-63,

814-54, 1138-77. Outreach representatives met with Zaraya, sent a courier to her

home to pick up her mortgage paperwork, timely scanned and analyzed the

paperwork, obtained a detailed factual affidavit from Zaraya containing her pertinent

income history, the closing information on her property, and provided this analysis

to Zaraya’s attorney, Adam Skolnik, Esq. App.814-54.

Attorney Skolnik testified that after a consultation with Zaraya, he advised

that it was in Zaraya’s best interest to pursue a legal action in federal court suing

Wells Fargo for predatory lending practices and fraud. App.814-54, 1138-77. On

January 28, 2009, only 14 days after Zaraya had signed a contract with Outreach

Housing for services, her lawsuit was filed by Attorney Skolnik against Wells Fargo.

App.1138-77. The lawsuit relied upon the expert analysis provided by Outreach

Housing to Attorney Adam Skolnik, Esq. App.815-44, 1138-77.

Notably, Rebecca Zaraya has always testified that she never met either

Defendant, Blair Wright or Bryan Berry. She testified to speaking with some

Outreach Housing employees, but that she never met or spoke with Wright or Berry.

11
App.866. Thus, as a matter of law the State cannot attempt to use Rebecca Zaraya

as a predicate incident to leverage a Substantive RICO or theft charge against the

Defendants, because Zaraya testified she has never met either Wright or Berry.

App.866.

Zaraya testified that she paid a total of $884.97 on January 12, 2009 in

connection with Outreach Housing. App.868. From that total payment, the records

produced by Attorney Adam Skolnik establish that a payment of $350 was paid for

Zaraya’s federal court filing fee to sue Wells Fargo, $9 was paid as a lis pendens fee,

$230 was paid to Attorney Skolnik (which ended up being returned to the State’s

Receiver, Daniel Stermer, as a result of the State’s Receivership), $6 was paid in

courier fees, $60 in process services fees to serve Zaraya’s lawsuit. A total of

$229.97 was earned by Outreach Housing for services rendered that Ms. Zaraya and

Attorney Skolnik both testified she fully received. App.840-43, 851, 868, 882-88.

The total $229.97 paid to Outreach Housing was lawfully earned for the

substantial work performed, including but not limited to, gathering and analyzing

Zaraya’s mortgage documents, obtaining a client affidavit with income history and

lending practice information, providing SEC filings tracing analysis to Attorney

Skolnik to file Zaraya’s federal lawsuit. App.823-24. Outreach personnel also met

with Zaraya on multiple occasions to assist her in retaining legal counsel of her

choice. App.892-95. 889-90.

12
 Accordingly, there is no factual basis, nor has there ever been any evidence

presented by the State to suggest that the $229.97 payment to Outreach from

Rebecca Zaraya was improper or unlawful. App.851, 889, 890, 895, 913, 915, 919,

921, 926, 927. There is also no support for the proposition that the payment was

unearned or that no services were provided. The State has wholly failed to tender

any admissible evidence of any criminal conduct in relation to Zaraya’s brief 14-day

relationship with Outreach Housing. App.851, 889, 890, 895, 913, 915, 919, 921,

926, 927.

Rebecca Zaraya unequivocally told his Honor Judge Merrigan in open court

that the State’s claim that she was a “victim” is made in bad-faith. As Ms. Zaraya

testified under oath she never met Mr. Wright or Mr. Berry and she is most certainly

not a “victim” of any crime:

MS. ZARAYA: This is the first time I ever met him.

MR. JOHNSTONE: What did he do to harm you or make you a

victim in a criminal case?

MS. ZARAYA: Nothing.

App.885.

MR. JOHNSTONE: You are not a victim of Blair Wright, are you?

MS. ZARAYA: No, I'm not.

App.890.

13
 MR. JOHNSTONE: I am just asking since you are the one who is being
listed as a quote, "Victim", by the State?

MS. ZARAYA: I'm not victim.

MR. JOHNSTONE: I know you are not.

MS. ZARAYA: But they know now.

MR. JOHNSTONE: Everybody knows that. You told us under oath.

MS. ZARAYA: Exactly.

MR. JOHNSTONE: If I may, just to finish. I just want to know since they
have listed you as a victim and prosecuted this man for years on this
case, if you know what Outreach actually did for you above and beyond
the initial interview and coming out to marshal all of the materials and
bringing them back to you? Do you know what they did?

MS. ZARAYA: They helped me get out of a funny situation.

MR. JOHNSTONE: Tell the Judge that. What did they do for you?

MS. ZARAYA: Helped me get out the situation I was in.

MR. JOHNSTONE: They didn't steal money from you?

MS. ZARAYA: No, of course not.

App.895.

As testified to under oath by the State’s own alleged “victims” the State has been

maliciously prosecuting these charges in bad-faith for the past eleven (11) years:

MR. JOHNSTONE: I guess this is what I wanted you to establish with the
Court. You are not saying you are a victim?

MS. ZARAYA: No, I'm not a victim.

MR. JOHNSTONE: You actually said a moment ago when you found out,
you heard through conversations that Mr. Wright has been through

14
 years and years of being persecuted and prosecuted by the State, you
were appalled and you felt terrible?

MS. ZARAYA: Tremendous.

MR. JOHNSTONE: Did you tell the State, "Don't use me as a victim. I'm
not a victim. I actually got everything that I paid for and more?"

MS. ZARAYA: Yes, they hear what I'm saying now.

MR. JOHNSTONE: Is that what you said?

MS. ZARAYA: Yes, they know what I'm saying.

App.927.

Ms. Zaraya honestly and sincerely stated under oath repeatedly that the State’s

conduct in this case in unethical and improper as it continues to maliciously pursue sham

charges against the defendants. Ms. Zaraya then made it clear that she does not want

to have anything to do with any charges against the defendants, who are innocent:

REBECCA ZARAYA: I said, "I don't want to have any part of this
anymore. Leave this poor man alone. He is innocent."· And what
happened to all of us over years -- it's like 11 years and it's a long
time. This kind of nonsense has to stop. People have to -- people are
so bias and they have to be unbias. I don't know what is going on
today. It's terrible and I don't like it.

App.906.

The State tendered no evidence, not a single bank record or transaction receipt,

nor any testimony in opposition to Brent Hampton, Esq.’s sworn testimony

regarding the last dates of payments from the alleged “victims,” which clearly bar

jurisdiction of this matter. App.789-97. The State called no witnesses at the June 21,

15
2018 hearing. App.754. The State also stipulated on the record that the GCS account

statements read into the record by Mr. Hampton were accurate and complete records.

App.789-97, 801, 722-51.

The State unquestionably engaged in bad-faith by including Zaraya in their

charging document. App.1242-44. The State also engaged in bad-faith by

proceeding on a continuing offense theory of theft to improperly extend time-barred

payments into the five-year statute of limitations. App.468-78. The State knew that

Zaraya’s complaint was against the State’s Receiver for closing down Outreach

Housing, and not against the Defendants. App.282.

Statewide Prosecutor Hogan stated on the record that she objected to having

to meet the State’s burden of proof to substantiate any criminal conduct had occurred

within the governing five-year statute of limitations:

STATEWIDE PROSECUTOR HOGAN: I just wish to renew our

objection to this hearing again. And I also want to state that what
the Court is asking us to do, or what the defense is asking us to do
by virtue of this hearing is disclose our trial strategy, which we
don't believe is necessary at this point nor do we intend to do that.

THE COURT: And I am going to maintain my prior ruling.

App.862-63.

Nonetheless, the State affirmed at the June 21, 2018 hearing that it understood

its burden of proof under Fla. R. Crim. P. 3.190(b), and it was prepared to meet the

requisite burden to establish jurisdiction of the charges during the hearing. App.761.

16
(“So King versus State, which is 282 So.2d 162, the defense relies on that for the

proposition that the burden of proving that we filed our case within the frame of the

statute of limitations, is on the State. We concede that issue, it is on the

State.”)(emphasis added). Even so, the State wholly failed to meet its burden of

proof because it presented no evidence to substantiate jurisdiction of the charges,

aside from its own Second Amended Information and Traverse filed in the court

record. App.770, 934-35.

The State simply does not have the ability under a Rule 3.190(b) Motion to

Dismiss to request the court take judicial notice of its Traverse, and its facially

deficient Second Amended Information that relies on a “continuing offense” theory

of theft, and prevail. The State wholly failed to produce any authenticated bank

records, any live testimony at the June 21, 2018 hearing, or any other form of

admissible evidence that shows that any criminal conduct may have occurred during

the governing five-year statute of limitations. App.754, 934-35.

Oddly, the State’s cross-examination at the June 21, 2018 hearing of defense

witnesses was not predicated on the charges pending against the Defendants seeking

evidence of unlawful conduct to establish jurisdiction. App.808-11, 860-62, 898–

922. Instead, the State seemed to take out its frustration that the trial court permitted

a hearing at all, by making baseless accusations to smear defense counsel, and to

17
discredit the defenses’ witnesses, including Rebecca Zaraya, who is one of the

State’s alleged “victims” in the case. App.898–922.

The State’s bad-faith conduct in the prosecution of the Defendants in this case

is palpable. When defense counsel offered State emails into evidence at the June 21,

2018 hearing, the trial court improperly sustained the State’s objection on relevance

grounds. App.931-33. These State emails show the State attempted to suppress

exculpatory emails that unquestionably support a finding of bad-faith in including

Zaraya as a named “victim” over her own objections. App.931-33.

These improperly excluded emails unquestionably prove the State tried to

conceal exculpatory testimony by keeping the defense from learning that Zaraya had

given a sworn statement essentially exonerating Wright in 2009 App.931-33. A

finding of bad-faith is relevant to the proceedings when a Rule 3.190(b) motion to

dismiss challenges the State’s ability to tender substantial, competent evidence of

criminal conduct having occurred within the governing statute of limitations.

App.867-69.

Count III alleging Grand Theft against Jennifer Johnson is pled outside the

governing five-year statute of limitations. App.750-51, 798, 1215-16, 1335. Count

IV alleging grand theft as to Zaraya is similarly without merit as Zaraya’s complaint

was clearly leveraged against the State’s injunction and not against any conduct by

Wright or Berry, whom she had never even met or spoken to. App.866. Thus, these

18
counts must be dismissed as there has been no evidence tendered by the State to

support any criminal conduct having occurred from November 1, 2008 through

November 1, 2013.

The State further argues that the Court cannot step in and dismiss any of the

Counts against either of the Defendants because there are facts that are in dispute

pursuant to the Traverse filed by the State of Florida. App.2191. At oral argument

on the motion, the State went so far as to suggest that the State needed to simply file

charges, any charges, claiming to fall within the five-year statute of limitations, even

if those charges were wholly unsubstantiated by any evidence. App.654, 658, 659,

756-811.

The State further argued there is no obligation under Rule 3.190 to

demonstrate the "provableness" of its charges prior to trial. App.760. Wright argued

in opposition that the State needn’t demonstrate the “provableness” of its charges,

but it was required to comply with its evidentiary burden under Rule 3.190(b), and

tender substantial, competent evidence that some form of criminal conduct occurred

within the governing five-year statute of limitations to establish jurisdiction.

App.760. The problem with the State's argument is that it is unsupported by Florida

law. The State failed to tender any evidence at all in this respect mandating all

charges be dismissed against Wright and Berry. App.770, 934-35.

II. LEGAL ARGUMENT

19
I. THE BURDEN OF PROOF UNDER FLA. R. CRIM. P. 3.190(b) RESTS ON
THE STATE OF FLORIDA TO ESTABLISH JURISDICTION OF
CRIMINAL CHARGES WITHIN THE REQUISITE STATUTE OF
LIMITATIONS

The significant burden of proof to establish that the alleged crime occurred

within the statute of limitations rests firmly on the State. Escalante v. State, 165

So.3d 839, 840 (Fla. 2d DCA 2015)(“[w]hen a criminal defendant challenges his

prosecution as untimely commenced, the State has the burden to establish that the

prosecution is not barred by the statute of limitations.”); Soto v. State, 892 So.2d

1290 (Fla. 4th DCA 2008); Fleming v. State, 524 So.2d 1146, 1146 (Fla. 1st DCA

1988); State v. King, 282 So.2d 162, 164 (Fla. 1973)(“Of course, ‘(t)he time within

which an offense is committed is a jurisdictional fact in all cases subject to limitation.

In fact, a most significant burden of proof is placed upon the State in order to proceed

once the jurisdiction of the Court is questioned through the raising of the Statute of

Limitations.”); see also Mead v. State, 101 So.2d 373, 375 (Fla. 1958) (statute of

limitations must be construed liberally in favor of defendants); Matos v. State, 961

So.2d 1077, 1077 (Fla. 4th DCA 2007); Pontius v. State, 932 So.2d 618, 620 (Fla.

4th DCA 2006(“The State did not carry its burden” to establish jurisdiction on a Fla.

R. Crim. 3.190(b) motion to dismiss); see also Akers v. State, 370 So.2d 81, 83 (Fla.

1st DCA 1979)(The State’s “failing to prove this jurisdictional fact it failed to carry

the burden of proof required of it by law. The trial court should have granted Akers’

motion for judgment of acquittal” under Fla. R. Crim. P. 3.190(b)).

20
II. THE STATE CANNOT RELY ON ITS INFORMATION AND A WRITTEN
TRAVERSE TO MEET ITS EVIDENTIARY BURDEN OF PROOF TO
ESTABLISH SUBSTANTIAL, COMPETENT EVIDENCE TO DEFEAT A
FLA. R. CRIM. P. 3.190(b) MOTION TO DISMISS.

The trial court found in its Order that despite the State’s failure to tender any

admissible evidence at the June 21, 2018 hearing, that the State can rely on its

Second Amended Information and written Traverse to meet its burden of proof to

defeat the Defendants’ Fla. R. Crim. P. 3.190(b) Motion to Dismiss. The trial court’s

ruling is in direct contravention to Second District Court of Appeal’s Opinions in

Neal and Escalante. Neal v. State, 697 So.2d 903 (Fla. 2d DCA 1997); see also

Escalante v. State, 165 So.3d 839 (Fla. 2d DCA 2015).

As a matter of law, the Second District Court of Appeal has held that the State

cannot meet its burden of proof by merely relying on the face of its Second Amended

Information and a written Traverse. Neal v. State, 697 So.2d 903, 905-07 (Fla. 2d

DCA 1997)(dismissing the State’s charges because “[e]ven if the prosecutor had

made his statement in testimony under oath, reporting facts developed by a third

party, or if the State had attempted to introduce the traverse into evidence, both

properly would have been rejected as inadmissible hearsay. § 90.801, Fla. Stat.”).

In adjudicating a Rule 3.190(b) Motion to Dismiss, the trial court is limited as

to what it may consider in determining whether the State has met its evidentiary

burden of proof. State v. Brugman, 588 So.2d 279, 279-80 (Fla. 2d DCA

21
1991)(holding that, absent a stipulation, unsworn statements by attorney or

investigator on motion to dismiss a criminal charge do not establish facts, and the

failure of opposing counsel to object does not cure the deficiency because orders on

such a motion must be supported by substantial, competent evidence).

The same is true of the traverse or other out-of-court sworn statements, which

are simply filed with the court. These statements are inadmissible hearsay pursuant

to Section 90.801, Florida Statutes, and cannot be considered by the trial court as a

matter of law. “A statement is not hearsay if the declarant testifies at the trial or

hearing and is subject to cross examination concerning the statement.” Madry v.

State, 969 So.2d 507, 509 (Fla. 1st DCA 2007)(citing § 90.801(2)(c), Fla. Stat.

(2006)).

At the June 21, 2018 hearing, the State did not provide any live testimony

from any witnesses, nor did tender any admissible evidence. App. 754. The only

submission tendered by the State at the June 21, 2018 hearing, were inadmissible

hearsay under Florida law. See § 90.801, Fla. Stat. The trial court is not permitted to

consider the State’s Second Amended Information and Traverse in determining

whether the State met its burden of proof to defeat a Fla. R. Crim. P. 3.190(b) Motion

to Dismiss. Neal v. State, 697 So.2d 903, 905-06 (Fla. 2d DCA 1997).

At the June 21, 2018 hearing, the State also requested the trial court take

“judicial notice of the entire case file.” App.374. The trial court cannot take judicial

22
notice of the State’s file to meet its burden of proof of substantial, competent

evidence on Rule 3.190(b) Motion to Dismiss. Filing a document does not place it

in evidence. See Turtle 906 Lake Assocs., Ltd. v. Third Financial Services, Inc., 518

So.2d 959, 961 (Fla. 1st DCA 1988)(observing that the filing of a mortgage as an

appendix to a complaint does not obviate the need to admit it into evidence for

consideration of its content, and holding that pleadings are not themselves evidence);

see also Fair v. Kaufman, 647 So.2d 167, 168 (Fla. 2d DCA 1994).

“Even if the prosecutor had made his statement in testimony under oath,

reporting facts developed by a third party, or if the State had attempted to introduce

the traverse into evidence, both properly would have been rejected as inadmissible

hearsay. § 90.801, Fla. Stat.” Neal v. State, 697 So.2d 903, 905-06 (Fla. 2d DCA

1997)(holding that in deciding a Rule 3.190(b) motion to dismiss the trial court is

not permitted to consider out-of-court statements, out-of-court affidavits, or filings

in the case as these documents constitute inadmissible hearsay under Florida law.).

In Escalante, the Second District Court of Appeal directed the trial court to

“make specific findings based on the State’s evidence” and that “[i]f the State cannot

prove that it was Roblero Escalante's leaving the scene, as opposed to the accident

itself, that caused the death of the victim, then Roblero Escalante must be

discharged.” Escalante v. State, 165 So.3d 839, 841 (Fla. 2d DCA 2015).

23
 Here, the State has attempted to distinguish the requisite burden of proof noted

in Escalante by distinguishing the factual predicate of delayed service of the

charging document. However, the State’s legal analysis is completely misguided. In

Escalante, the State still had the substantial burden to set forth facts showing that it

could substantiate that the crime alleged, under the criminal theory on which it chose

to proceed, had occurred within the requisite statute of limitations. Id. at 841.

Florida law is well-settled in that the State always has the burden of proving

jurisdiction, which cannot be met by uncorroborated hearsay. See Neal v. State, 697

So.2d 903, 905-06 (Fla. 2d DCA 1997)(even in a case where it could traverse

disputed facts, the State cannot rely on its traverse to meet its burden of proof on a

Fla. R. Crim. P. 3.190(b) motion to dismiss because it is hearsay).

In State v. King, 275 So.2d 274, 276 (Fla. 3d DCA 1973), aff'd, 282 So. 2d

162 (Fla. 1973), the State argued that its statute of limitations period should be

tailored to encompass its criminal theory of theft suggesting that an unlawful taking

did not occur until the defendant refused a demand for payment by the victim. Id. at

277.

The Court held that under Rule 3.190(b), the State is required to submit

competent, substantial evidence to show an offense was properly charged within the

statute of limitations. The State cannot rely on conclusory denials in its Traverse to

meet this standard. The State must show not only show that it has substantial,

24
competent evidence that entitles it to allege that the statute of limitations has been

satisfied, it must also prove that the substance of its factual allegations would, in

good faith, substantiate the charged offense. The State admittedly failed to do either

in the present case.

Admittedly, the State has failed to set forth a reasonable theory of theft or to

clearly indicate through a presentation of evidence, what facts might enable it to

meet its burden of showing a theft crime occurred within the governing statute of

limitations. See Escalante v. State, 165 So.3d 839, 841 (Fla. 2d DCA 2015); State v.

King, 275 So.2d 274, 277 (Fla. 3d DCA 1973).

At the June 21, 2018 hearing, the State admittedly tendered no admissible

evidence to substantiate any viable theory of theft, money laundering, or any other

form of criminal conduct had occurred within the requisite statute of limitations. The

State plainly admits:

“Defense counsel is right about one thing: The State put on none
of the evidence it intends to elicit before a finder of fact. There
are two reasons for this: First, Rule 3 .190(b) motions are never
about the sufficiency of evidence to sustain charges, they are
always about timely commencement of the prosecution.”

App.1723.

The only submissions by the State were inadmissible hearsay that cannot meet

the State’s burden of proof to tender substantial, competent evidence necessary to

25
proceed to trial. The State has failed to meet its burden of proof as a matter of law

to establish jurisdiction, mandating dismissal of all charges.

III. THE STATE CANNOT PROCEED ON A “CONTINUING OFFENSE”

THEORY OF THEFT AND IGNORE THE DATES OF PAYMENTS MADE
BY THE ALLEGED CONSUMER “VICTIMS” TO ARTIFICALLY
EXTEND TIME-BARRED CHARGES INTO THE FIVE-YEAR STATUTE
OF LIMITATIONS.

Florida law is well-settled that the State cannot proceed on a “continuing

offense” theory of theft as it attempts to do in the present case to improperly extend

time-barred claims into the statute of limitations. State v. Diaz, 814 So.2d 466, 467

(Fla. 3d DCA 2002). In Diaz, the State charged the defendant with grand theft in

connection with 23 invoices. The State contended that all invoices were part of a

common scheme or plan to defraud the county and should be treated as a continuing

offense within the five-year statute. Id.

The Third District Court of Appeal disagreed based upon a plain reading of

section 812.014, Florida Statutes. Instead, the court concluded that each invoice was

a separate taking, holding that the State failed to timely charge the defendant when

it failed to tender any substantial, competent evidence of any unlawful taking within

the five-year statute of limitations. Id. at 466. The same pleading deficiencies exist

here. The State has not met its burden of proof to establish jurisdiction under Rule

3.l90(b) as it made no showing of any unlawful conduct from November 1, 2008

through November 1, 2013, the governing statute of limitations.

26
 The Defendants are challenging the State on the same facial pleading

deficiencies which mirror those in Diaz. In light of this Rule 3.190(b) jurisdictional

challenge to the State’s Information, Florida law requires that the State tender

substantial, competent evidence to meet its jurisdictional burden, which it has not

done in the present case. The State's Summation expressly argues, "[t]he Court's own

records contain all the necessary evidence to carry the State’s burden." App.1719.

(Summation Paragraph 22)(emphasis added).

After hearing extensive argument, the trial court eventually entered an Order

denying the motion to dismiss. App.2189-91. In doing so, the trial court ignored

well-settled Florida law holding that theft is not a “continuing offense.” The trial

court improperly permitted the State to proceed on a continuing offense theory of

theft, which this Court has previously rejected. Rosen v. State, 757 So.2d 1236 (Fla.

4th DCA 2000).

In State v. King, 282 So.2d 162, 166 (Fla. 1973), the Florida Supreme

Court quoted favorably from the United States Supreme Court's opinion in

Toussie v. United States, 397 U.S. 112, 114-115 (1970):

In deciding when the statute of limitations begins to run in a given case

several considerations guide our decision. The purpose of a statute of
limitations is to limit exposure to criminal prosecution to a certain fixed
period of time following the occurrence of those acts the legislature has
decided to punish by criminal sanctions. Such a limitation is designed
to protect individuals from having to defend themselves against charges
when the basic facts may have become obscured by the passage of time
and to minimize the danger of official punishment because of acts in
27
 the far-distant past. Such a time limit may also have the salutary effect
of encouraging law enforcement officials promptly to investigate
suspected criminal activity. For these reasons and others, we have
stated before 'the principle that criminal limitations statutes are ‘to be
liberally interpreted in favor of repose,' United States v. Scharton, 285
U.S. 518, 522 (1932).' United States v. Habig, 390 U.S. 222, 227
(1968). We have also said that 'statutes of limitations normally begin to
run when the crime is complete'…These principles indicate that the
doctrine of continuing offenses should be applied in only limited
circumstances since…the tension between the purpose of a statute of
limitations and the continuing offense doctrine is apparent; the latter,
for all practical purposes, extends the statute beyond its stated term.'
410 F.2d at 1158.

In King, the Florida Supreme Court held that for the crime of larceny, the

crime is complete and committed upon the taking. King, 282 So.2d at 167. Thus, the

statute of limitations begins to run from the date of the taking. Id. The Fourth District

Court of Appeal reaffirmed this principle. "A reading of section 812.014 Florida

Statutes (1987) does not suggest that the legislature intended grand theft to be a

continuing offense.” O’Malley v. Mounts, 590 So.2d 437, 438 (Fla. 4th DCA 1997).

In the present case, each Homeowner’s payment constituted a completed

“taking” at the time the payment was received by Outreach. The State is attempting

to treat grand theft as if it is a “continuing offense” to falsely extend time-barred

predicate acts into the November 1, 2008 to November 1, 2013 governing statute of

limitations. Compare First Amended Information Count III (alleging Defendant

intended to deprive Johnson of property “Beginning on or about October 15, 2008,

and continuing through November 3, 2008”), with Second Amended Information

28
Count III (alleging Defendant intended to deprive Johnson of Property “Beginning

on or about May 5, 2008, and continuing through on or about October 20,

2008”)(emphasis added). The State’s Second Amended Information fails to properly

plead a theft charge on its face, because it relies on a continuing offense theory of

grand theft, which is improper under Florida law. Bonel v. State, 651 So.2d 774, 776

(Fla. 3d DCA 1995)(citing Reino v. State, 352 So.2d 853 (Fla. 1977); State v. Mack,

637 So.2d 18 (Fla. 4th DCA 1994))(the statute of limitations in a criminal

proceeding is to be liberally construed in favor of the accused).

Accordingly, the dates contained within the State’s Second Amended

Information, alleging transfers of money from any alleged victim that took place on

or after November 1, 2008, are not supported by substantial, competent evidence.

The testimony from GCS general counsel unequivocally stated the last dates of

payments for the alleged victims undisputedly fall outside the statute of limitations.

App.654, 658, 659, 756–811. Thus, there is no evidence that any grand-theft

occurred on or after the date of November 1, 2008 from these remaining alleged

victims to substantiate the allegations of Grand Theft within the five-year statute of

limitations governing the State’s charges. Thus, all charges must be dismissed with

prejudice under Florida law.

IV. REBECCA ZARAYA CANNOT SERVE AS A PREDICATE INCIDENT

UNDERLYING A SUBSTANTIVE RICO CHARGE BECAUSE IT IS
UNDISPUTED THAT SHE NEVER MET THE DEFENDANTS,
THEREBY NEGATING THE ELEMNT OF DIRECT PARTICIPATION.
29
 Under Florida law, in a substantive Racketeer Influenced and Corrupt

Organizations Act (RICO) prosecution the five-year statute of limitations begins

from the date of the last predicate act in which the defendant personally participated,

not the date of the last predicate act committed by the enterprise as a whole. See §

895.05(10), Fla. Stat.

In a substantive RICO prosecution, the gravamen of the "crime" is the pattern

of racketeering activity; that is, the individual predicate acts alleged to have been

committed by the defendant. The limitations period commences upon the date the

"crime" is completed which, for substantive RICO purposes, is the date of the last

charged predicate act committed by the individual defendant. State v. Reyan, 145

So.3d 133, 137-41 (Fla. 3d DCA 2014); see also U.S. v. Persico, 832 F.2d 705, 714

(2d Cir. 1987)(holding that five-year statute of limitations applicable to prosecution

under section of RICO prohibiting conducting enterprise's affairs through pattern of

racketeering activity commenced to run when defendant committed last overt act,

rather than when any member of group charged committed last overt act.”).

In a present case, there has never been any evidence that the individual

defendants personally participated in any manner regarding Rebecca Zaraya’s brief

14-day relationship with Outreach Housing. In fact, Rebecca Zaraya has always

testified she never met or spoke with Blair Wright or Bryan Berry. Zaraya

reconfirmed this fact at the June 21, 2018 hearing. App.866.

30
 Accordingly, there is no evidence, nor has the State produced any evidence,

that the defendants personally participated in any criminal conduct relating to

Rebecca Zaraya. App.866. Thus, as a matter of law Zaraya cannot serve as a

predicate act under Count I for substantive RICO.

Due to the fact that all other predicate acts fall well outside the statute of

limitations and the State has tendered no admissible evidence to substantiate any

crime occurred within the statute of limitations, Count I must be dismissed as a

matter of law. App.754. The State’s utter failure to tender any admissible evidence

on June 21, 2018 to support that the Defendants’ personally participated in any

manner in respect to Rebecca Zaraya’s brief relationship with Outreach Housing,

renders Count I subject to mandatory dismissal.

V. THE STATE IS COLLATERALLY ESTOPPED FROM PURSUING ANY

CHARGES REGARDING REBECCA ZARAYA OR ANY CONSUMER
WHO COMPLAINED AS A RESULT OF THE STATE’S INJUNCTION &
RECEIVERSHIP ORDER.

A legal principle of prohibiting catch-twenty-two or gotcha litigation has been

well memorialized under Florida law. This legal principle prohibits a party from

seeking legal relief from the trial court, and then later claiming the relief granted at

its request, was somehow improper or unlawful. State v. Belien, 379 So.2d 446, 447

(Fla. 3d DCA 1980)(“In other words, ‘gotcha!’ maneuvers will not be permitted to

succeed in criminal, any more than in civil litigation.”)(citing Salcedo v. Asociacion

31
Cubana, Inc., 368 So.2d 1337, 1339 (Fla.3d DCA 1979); McPhee v. State, 254 So.2d

406 (Fla.1st DCA 1971)).

Here, the State of Florida sought an Ex-Parte Injunction on January 28, 2009

to close Outreach Housing down and prevent it from rendering services to clients.

At the time, Rebecca Zaraya had only been an Outreach Housing client for 14 days,

but the undisputed evidence unequivocally shows she had received mortgage

analysis and trial consulting services from Outreach, and retained Attorney Adam

Skolnik, Esq. who filed a lawsuit on her behalf on January 28, 2009 against her

mortgage lender.

Rebecca Zaraya attended the June 21, 2018 hearing in person and testified on

the stand that she is not a “victim” and the State’s charges are meritless. App.851,

889, 890, 895, 913, 915, 919, 921, 926, 927. Thus, a matter of law the State has

failed to meet its requisite burden of proof under Rule 3.190(b) to substantiate

Zaraya’s inclusion in this case as a “victim”—allegations she herself expressly

denies. App.851, 889, 890, 895, 913, 915, 919, 921, 926, 927.

The State’s injunction prevented the Defendants from performing any further

services for the client homeowners or their retained attorneys as of January 29, 2009.

Zaraya’s complaint was in response to action taken by the State’s court appointed

Receiver—and not as a result of any conduct of the Defendants. App.295–313.

32
 The State actually caused Ms. Zaraya’s complaint by enjoining Outreach from

continuing to provide further services to her. App.295–313. The State then arrested

Wright and Berry for complying with the State’s January 28, 2009 Injunction &

Receivership Order. App.295–313. The State cannot, as a matter of law, now assert

the defendants committed a crime by failing to render services to Zaraya when the

State sought a court ordered injunction to prevent Outreach from doing so. App.

295–313.

“[T]his kind of tactic is unfair.... This is little more than the ‘gotcha’ school

of litigation, roundly condemned in the cases.” Nelson v. State, 855 So.2d 132, 133,

n.1 (Fla. 4th DCA 2003). Setting aside the clear entrapment defenses the State’s

conduct raises, the State is collaterally estopped from charging the Defendants with

criminal action for failing to render services the Defendants were enjoined by the

State from rendering.

VI. THE STATE SHOULD WELCOME DISMISSAL OF ALL CHARGES

WITH PREJUDICE AS SUCH A RULING IS IN CONFORMITY WITH
JURISDICTIONAL MANDATES UNDER FLORIDA LAW.

In Cochran, this Court set forth that “[t]he prosecuting attorney occupies a semi-

judicial position. He is a sworn officer of the government, with no greater duty

imposed on him than to preserve intact all the great sanctions and traditions of the

law. It matters not how guilty a defendant in his opinion may be, it is his duty under

oath to see that no conviction takes place except in strict conformity to law. His

33
primary considerations should be to develop the facts and the evidence for the

guidance of the court and jury, and not to consider himself merely as attorney of

record for the state, struggling for a verdict.” Cochran v. State, 711 So.2d 1159, 1163

(Fla. 4th DCA 1998)(quoting Washington v. State, 86 Fla. 533 (1923)).

This Honorable Court further articulated the that a “prosecutor is the

representative not of an ordinary party to a controversy, but of a sovereignty whose

obligation to govern impartially is as compelling as its obligation to govern at all;

and whose interest, therefore, in a criminal prosecution is not that it shall win a case,

but that justice shall be done. As such, he is in a peculiar and very definite sense the

servant of the law, the twofold aim of which is that guilt shall not escape or

innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should

do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It

is as much his duty to refrain from improper methods calculated to produce a

wrongful conviction as it is to use every legitimate means to bring about a just one.”

Id. at 1163 (citing Berger v. United States, 295 U.S. 78, 88 (1935)).

In the present case, the State has lost its way. It is apparent there is absolutely

no evidence to establish jurisdiction. The State entirely failed to tender any

admissible evidence to establish jurisdiction in this case. The State was required to

tender substantial, competent evidence that criminal conduct that occurred within

the requisite five-year statute of limitations. The State simply failed to meet its

34
burden. Accordingly, the trial court must dismiss all charges with prejudice against

Wright and Berry under Florida law.

CONCLUSION

WHEREFORE, the Defendant, BLAIR L. WRIGHT, respectfully requests

this Honorable Court enter an order dismissing all charges filed against him in the

above-styled matter pursuant to the Fla. R. Crim. P. 3.190(b). The State of Florida

has failed to tender any admissible evidence to meet its burden of substantial,

competent evidence that any criminal conduct occurred within the requisite statute

of limitations, mandating dismissal of all charges pending against the Defendants

with prejudice.

/s/ Crane Johnstone /s/ Robyn Sztyndor /s/ Claudia Pastorius

Crane Johnstone, Esq. Robyn L. Sztyndor, Esq. Claudia Pastorius, Esq.
Fla. Bar No.: 616060 Fla. Bar No.: 0089253 Fla. Bar No. 0113597
2850 NE 55ft Place
 2850 NE 55ft Place 720 E. New Haven Ave.,
Ft. Lauderdale, FL 33308
 Ft. Lauderdale, FL 33308
 Suite 10
cranejohnstone@ (786) 395-1824 Melbourne, FL 32901
gmail.com rls409@nyu.edu (321) 557-2643
claudiapastorius@
gmail.com

35
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and accurate copy of the above and

foregoing Brief of Petitioner has been filed electronically with the Clerk of Court for

the District Court of Appeal of the State of Florida Fourth District on Sept. 30, 2018,

and a true and accurate copy of the foregoing Brief of Petitioner has been delivered

by electronic service to the Respondent, the State of Florida.

/s/ Robyn L. Sztyndor

Robyn L. Sztyndor, Esq.
Fla. Bar No.: 0089253
2850 NE 55th Place
Ft. Lauderdale, FL 33308
(786) 395-1824
rls409@nyu.edu


Crane Johnstone, Esq.

Fla. Bar No.: 616060
2850 NE 55th Place

Ft. Lauderdale, FL 33308

cranejohnstone@ gmail.com

Claudia Pastorius, Esq.

Fla. Bar No. 0113597
720 E. New Haven Ave.
Suite 10
Melbourne, FL 32901
(321) 557-2643
claudiapastorius@gmail.com

Attorneys for Petitioner

36
 CERTIFICATE OF COMPLIANCE

FURTHER, WE HEREBY CERTIFY that this Answer Brief complies with

the font requirements of Rule 9.210 of the Florida Rules of Appellate Procedure and

is in the required font of Times New Roman 14.

/s/ Robyn L. Sztyndor

Robyn L. Sztyndor, Esq.
Fla. Bar No.: 0089253
2850 NE 55th Place
Ft. Lauderdale, FL 33308
(786) 395-1824
rls409@nyu.edu


Crane Johnstone, Esq.

Fla. Bar No.: 616060
2850 NE 55th Place

Ft. Lauderdale, FL 33308

cranejohnstone@ gmail.com

Claudia Pastorius, Esq.

Fla. Bar No. 0113597
720 E. New Haven Ave.
Suite 10
Melbourne, FL 32901
(321) 557-2643
claudiapastorius@gmail.com

Attorneys for Petitioner

37