STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3901

)

EDWIN M. ZABALA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on March 19 and 21, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Sharon D. Larson, Esquire

Assistant General Counsel Florida Department of

Law Enforcement Post Office Box 1489 2331 Phillips Road

Tallahassee, Florida 32308

For Respondent: Robert D. Klausner, Esquire

Atkinson, Jenne, Diner, Stone Cohen & Klausner, P.A.

1946 Tyler Street

Post Office Drawer 2088 Hollywood, Florida 32022-2088

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

Respondent is certified by Petitioner as a law enforcement officer in the State of Florida. Respondent was, at the times pertinent hereto, employed by the City of Miami Police Department as a police officer. By Paragraph 2 of its Administrative Complaint, (which was amended prior to the beginning of the formal hearing to correct certain typographical errors) Petitioner alleged certain facts of wrongdoing by Respondent which Petitioner contends provide the basis for the disciplining of Respondent's certification as a law enforcement officer. The Administrative Complaint alleged that Respondent violated the provisions of Section 943.1395(5),(6), Florida Statutes, and of Rule 11B-

27.0011(4)(a), Florida Administrative Code, and that, consequently, he had failed to maintain the good moral character required of a law enforcement officer by Section 943.13(7), Florida Statutes. Respondent denied the factual allegations of the Administrative Complaint and demanded a formal administrative hearing to challenge such allegations. This proceeding followed.

Without objection from any party, the formal hearing in this proceeding was conducted, in part, in conjunction with the formal hearing in cases brought by Petitioner against two other law enforcement officers (DOAH Case No. 90-6162 and DOAH Case No. 90-2229 involving Vincent E. Collazo and Ignacio F. Menocal, respectively). This procedure was adopted as a convenience to the U.S. Marshal's office because certain witnesses who presented testimony considered by Petitioner to be germane to all three cases were incarcerated in the federal prison system and because certain background testimony was relevant to all three cases. Separate records were made for each of these three cases and a separate Recommended Order will be simultaneously entered in each of these three cases.

At the formal hearing as to the allegations brought against Respondent Zabala, Petitioner presented the testimony of James E. Judd, Rudolfo Arias, Regino Capiro, Louis F. Gonzalez, and Paul Shepard. Petitioner also called as a witness Carlos Pedrera who refused to testify and who was withdrawn as a witness prior to his giving any substantive testimony. Mr. Judd is an agent with the Federal Bureau of Investigation. Mr. Arias, Mr. Capiro, and Mr. Pedrera are former City of Miami police officers who were, at the time of the formal hearing, incarcerated in the federal prison system. Sgt. Gonzalez and Lt.

Shepard are City of Miami police officers assigned to the internal affairs unit. Petitioner presented one exhibit which was accepted into evidence without objection. Respondent testified on his own behalf, but presented no other witnesses and presented no exhibits.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the Respondent's proposed findings of fact may be found in the Appendix to this Recommended Order. The Petitioner did not file a post-hearing submittal.

FINDINGS OF FACT

1. The Respondent was certified by the Criminal Justice Standards and Training Commission on January 15, 1982, and issued certificate number 19-82- 002-10. At all times pertinent hereto, Respondent was a certified law enforcement officer, and was employed by the City of Miami Police Department as a police officer.

   
   

2. On May 31, 1985, a drug "rip-off" occurred in Miami, Florida, at Nuta's Boat Yard. Approximately 187 kilos of cocaine were taken. On July 12, 1985, a second drug "rip-off" occurred in Miami at the Tamiami Marina. Between 400-450 kilos of cocaine were taken. On July 28, 1985, a third drug "rip-off" occurred in Miami at Jones Boat yard. Approximately 450 kilos of cocaine were taken. Several City of Miami police officers were involved in these three drug rip-offs and the subsequent resale of the stolen cocaine. The subsequent prosecution of these cases became known as the "Miami River Cops Cases". Respondent Zabala did not participate in any of these three drug rip-offs and he has not been prosecuted criminally.

3. Rudolfo Arias , Regino Capiro, and Carlos Pedrera are former City of Miami police officers who were involved in the Miami River Cops Cases and who were, at the time of the formal hearing, incarcerated in the federal prison system. Mr. Pedrera was called as a witness, but he was withdrawn as a witness before he gave any substantive testimony because he refused to testify. Mr. Arias had agreed as part of his plea agreement to implicate and to testify against other law enforcement officers in exchange for certain benefits that he received. Although Mr. Arias received no direct benefit for his testimony in this proceeding, his plea agreement required that he testify against those he had incriminated. Mr. Pedrera refusal to testify was in spite of a plea agreement similar to that of Mr. Arias.

   
   

4. Mr. Arias was an officer with the City of Miami Police Department in 1985 who knew Respondent as a fellow officer and as a former neighbor.

   
   

5. The following allegations are based on information provided by Mr. Arias to Agent James E. Judd during the course of his debriefing by the Federal Bureau of Investigation:

   
   

   2. a) On or about dates in April 1985, Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully fail or refuse to report to his superiors or otherwise take official action upon learning that fellow officers, including Felix Beruvides and Ricardo Perez, had committed, and intended to commit in the future, the crimes of possession of in excess of 28 grams of a mixture containing cocaine and theft.

   1. On or about a date in April 1985, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully agree, conspire, combine or confederate with Felix Beruvides, Armando Estrado, Roman Rodriguez, and Armando Un-Roque, to be in actual or constructive possession of more than 28 grams of a mixture containing cocaine, a controlled substance defined by Section 893.03, Florida Statutes.

   2. On or about a date in April 1985, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully attempt to be in actual or constructive possession of more

      than 28 grams of a mixture containing cocaine, a controlled substance defined by Section 893.03, Florida Statutes.

      
      

6. These allegations stem from information Mr. Arias gave regarding the alleged attempted rip-off of cocaine from a freighter on the Miami River on an unknown date in 1985. The last name of the captain of this freighter was "Rhoda", and this incident was referred to at the hearing as the Rhoda incident. Respondent allegedly drove a fellow law enforcement officer, Felix Beruvides, to meet with certain men as part of a conspiracy to steal certain drugs from this freighter. These men, some of whom were referred to as Marielitos, planned to

   forcibly enter the freighter using their weapons and to steal cocaine that had been smuggled into Miami on the freighter. Mr. Arias was not present at this drug rip-off and his knowledge of this incident is based exclusively on his conversations with the Respondent and with Mr. Beruvides. Mr. Beruvides was not presented as a witness at the formal hearing. It was the conclusion of Mr.

   Arias from his conversations with Respondent that the Respondent knew that Mr. Beruvides was engaged in wrongdoing, but that Respondent had not been deeply involved in the Rhoda conspiracy. Mr. Arias testified that Respondent may have functioned as a lookout, but that, at a minimum, he was aware of this criminal activity and that he did not report it to his superiors. Mr. Arias's testimony as to conversations he had had with Respondent was vague as to when the conversation(s) occurred and as to what Respondent said. Mr. Arias had never seen Respondent in the possession of cocaine or other drugs.

   
   

7. Lieutenant Paul Shepard testified as to certain hearsay statements and as to a photographic lineup identification made by one Armando Un Roque, one of the Marielitos supposedly involved in the Rhoda rip-off. Mr. Un Roque did not testify at the formal hearing. Mr. Un Roque identified Respondent as being the driver of a red Trans Am who met with himself, Mr. Beruvides, and others when the Rhoda drug rip-off was planned. Mr. Un Roque told Lt. Shepard that he and others boarded the freighter, but that they abandoned their attempted rip-off after realizing that the ship was too big for them to search by themselves. 1/

   
   

8. The evidence presented by Petitioner of Respondent's knowledge and possible participation in the Rhoda rip-off is met by Respondent's credible denial of any knowledge as to the alleged events. Although Respondent was driving a red Camaro (which is similar in style to a Trans Am) during the time these events allegedly occurred, his testimony that he had given Mr. Beruvides a ride home following their shift in his red Camaro and that they stopped at a convenience store patronized by Marielitos provides a plausible explanation as to how Mr. Un Roque acquired that information. Additionally, FBI Agent Judd testified that the Rhoda rip-off never actually occurred. The conflicts in the record relating to the allegations found in Paragraph 2(a), (b), and (c) of the Amended Administrative Complaint are resolved in favor of Respondent and against Petitioner. It is concluded that the Petitioner has failed to establish by clear and convincing evidence the factual basis for those allegations, to-wit, that he conspired to participate in this alleged criminal activity or that he was aware of that activity.

   
   

9. The remaining allegations of the Amended Administrative Complaint pertain to information given to FBI Agent Judd by Mr. Arias during his debriefing as to money Mr. Arias gave to Respondent. Those allegations, from Paragraph 2 of the Amended Administrative Complaint, are as follows:

   
   

   1. On or about a date in July 1986, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully solicit, request, accept or agree to accept money, to-wit: $1,000 in U. S. currency, as an inducement to testify or inform falsely, or withhold testimony or information, upon his testimony as a witness in a proceeding

      instituted by a duly constituted prosecuting authority of the State.

   2. On or about a date in July 1986, the Respondent, Edwin M. Zabala, while employed

   as a police officer by the Miami Police Department, did then unlawfully accept from Rudolfo Arias, $1,000 in U. S. currency, knowing or believing the money to be the proceeds of an unlawful controlled substance transaction.

   
   

10. The original indictment of Mr. Arias was handed down in December 1985, but ended in a mistrial. Mr. Arias was among those defendants reindicted in federal court in 1986. Following the rearrest of Mr. Arias and his incarceration pending trial for his alleged involvement in the Miami River Cops cases in 1986, the court held a bond hearing to determine whether Mr. Arias would be released from jail on bond and, if so, the appropriate amount of bond. Respondent was contacted by Mr. Arias's wife and by his father and asked to testify on behalf of Mr. Arias as a character witness at the bond hearing. Respondent agreed to do so and voluntarily made himself available to the court. His testimony at the bond hearing was not necessary since the court limited the amount of character testimony that would be heard. At no time prior to this bond hearing had Respondent been offered any financial inducement to testify. Following his discharge from jail, Mr. Arias visited Respondent's home and gave to the Respondent the sum of $1,000 and a bottle of whiskey. Mr. Arias testified that the $1,000 was a gift to Respondent and was in appreciation for his being available at the bond hearing and for his willingness to testify. Mr. Arias testified that the money he gave to Respondent was drug money, but that he never told Respondent the source of the funds. Mr. Arias believed that the Respondent should have known that the source of the $1,000 was from drug transactions because he and the Respondent had engaged in general conversations as to ways to make money illegally.

    
    

11. Respondent admitted that Mr. Arias gave to him the sum of $1,000 and the bottle of whiskey. Respondent testified that $500 of that sum and the bottle of whiskey were gifts, but that the remaining $500 of the sum given to him by Mr. Arias was in repayment of a loan that Respondent had made to Mr. Arias. Respondent testified that he had previously loaned to Mr. Arias's the sum of $500 so that Mr. Arias's girlfriend could have an abortion without Mr. Arias's wife finding out. Mr. Arias admitted that his former girlfriend had had an abortion, but he denied that he had borrowed money from Respondent to secretly pay for the abortion or that any part of the $1,000 was in repayment of a loan. This conflict in the testimony is resolved by finding that Mr. Arias gave to Respondent the sum of $1,000 and a bottle of whiskey following the July 1986 bond hearing and that at least $500 of that sum was a gift in appreciation for his being available at the bond hearing and for his willingness to testify. The evidence does not establish that the money was in exchange for Respondent's willingness to provide false testimony.

    
    

12. Mr. Arias maintained that he was innocent of the charges brought against him until after he had given Respondent the $1,000 in July 1986. Mr. Arias did not admit his guilt to these charges until 1987. While Respondent may have had a reasonable basis upon which to speculate as to the source of the money he had received from Mr. Arias, he was not told the source of these funds by Mr. Arias and he had no direct knowledge as to the source of these funds. It is concluded that there was insufficient evidence to establish that he knew that the funds had been illegally obtained.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

14. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

15. Based on the findings made, it is concluded that Petitioner has not established the factual allegations of the Administrative Complaint by clear and convincing evidence. Consequently, Petitioner has failed to establish that Respondent lacks the good moral character required of law enforcement officers.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the charges brought against Respondent, Edwin M. Zabala.

RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of July, 1991.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day

of July, 1991.

ENDNOTES

1/ In addition to the testimony regarding Mr. Un Roque's identification being hearsay, his testimony was shown to be unreliable. Mr. Un Roque is a convicted criminal that Lt. Shepard would not trust. Mr. Un Roque erroneously identified one of the photographs as being that of Mr. Arias and incorrectly advised that Mr. Arias was one of the participants in the Rhoda incident.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3901

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 5, 6, 8, 9, 22, 31, 32, 33, and 34 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in paragraphs 3, 4, 7, 15, 16, 17, 18, 20, 21, 24, 27, 28, 30, 35, and 36 are rejected as being subordinate to the findings made.

   
   

3. The proposed findings of fact in paragraphs 10, 11, 12, 13, 14, 23, 25, and

   26 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made.

   
   

4. The proposed findings of fact in paragraphs 29, 37. 38, and 39 are rejected as being unnecessary as findings of fact.

COPIES FURNISHED:

Sharon D. Larson, Esquire Joseph D. White, Esquire Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Robert D. Klausner, Esquire 1946 Tyler Street

Post Office Drawer 2088 Hollywood, Florida 33022-2088

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore Commissioner

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy, Esquire General Counsel

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-003901

Orders for Case No: 90-003901