State Of Louisiana VS Michael Petitto
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIR UIT NO 2012 KA 1670 STATE C LOUISIANA F VERSUS MICHAEL PETITTO Judgment Rendered 2 62 3 R On Appeal from the 21 st 7udicial District Court In and for the Parish of Tangipahoa q G State of Louisiana L Trial Court No 703544 The Honorable Bruce C Bennett Judge Presiding Scott Perilloux Attorneys for Plaintiff Appellee District Attorney Patricia Parker Amos State of Louisiana Assistant District Attorney Amite Louisiana J Ganison Jordan Attorneys for Defendant Appellant Hammond Louisiana Michael Petitto and Ron S Macaluso Hammond Louisiana BEFORE GUIDRY CRA1N AND THERIOT JJ CRAIN J Michael Petitto an elected Tangipahoa Parish Councilman was indicted on December 7 2007 with two counts of malfeasance in office violations of Louisiana Revised Statute 14 He pled not guilty and waived his right to a 134 jury trial After a judge trial he was found guilty and sentenced to five years at hard labor on both counts The prison sentences were ordered to run consecutively but were suspended For the suspended sentences he received concurrent five year probations and was The defendant appeals alleging four fined 5 00 000 assignments of error Far the following reasons we affirm the convictions and sentences FACTS The events leading to the defendant indictment occurred during the period s beginning on or about March 1 2006 and continuing through November 30 2006 The charges resulted from the defendant alleged violation of the Code of s Govemmental Ethics specifically Louisiana Revised Statutes 42 and 1 ll12B 1 1 42 ll lE Whether the Code of Governmental Ethics can form the basis for a criminal charge of malfeasance in office under Louisiana Revised Statute 14 134 was answered in the affirmative by the Louisiana Supreme Court in the related matter State v Petitto 10 La 359 So 3d 1245 0581 11 15 The critical events of this case centered around the sale on October 31 2006 of eighteen acres of land near Amite Louisiana by Sal Petitto the brother of the defendant to Pine Grove Subdivision a subsidiary of Standard Enterprises Inc The land was sold for an affordable housing development referred to hereinafter as Pine Grove Subdivision Financing for the development was dependent upon low income housing tax credits obtained through the Louisiana Housing Finance Agency LHFA 2 Standard Enterprises was oby Mark and David Tunentine Its vice vned president was James k In late Fe r early March of 2006 Sal Petitto reeman ary r contacted the Tunrentines abmu loc an LH1EA prc in the Amite area Sal t tin ject Freeman and the I residents of vfaziro Louisiana That initial urrentines wer contact led to a trip to Amite y FreE arrd c Turr an a scheduled nan yF n tines meeting with the defendant a Spita lt The c sktoweu Freeman and s ea ndant ei the Turrentines around Amite and pr4vided them with information for determining whether Amite was an appropriate area for an LHFA development After the initial meeting with the defendant Sal contacted Standard Enterprises and advised them he had acquired an exclusive option to purchase eighteen acres of land near Amite The land was owned by a group of investors who co the property through several entities collectively the Investor owned Group The option was dated March 12 2006 and set a purchase price for the land of 21 per acre The defendant signed the option as a witness 00 000 On March 13 2006 the defe praposed a resolution to Lhe Tangipahoa dant Parish Council in support of Pine Grove Subdivision The resolution was important for Standard Enterprises to receive tax credits for the development from the LHFA their The tax eredits were vievved by Stiandard Enterprises as critical for financing The defendant voted in ravor of the support resolution which passed unanimously On March 17 2006 Sa1 granted to Standard Enterprises an exclusive option to purchase the same land on which Sal held an option The price for the land under the option granted to Standard Enterprises was 32 per acre 00 000 On October 30 2006 Sal purchased the iand from the Investor Group for 00 16Q 37T as contemplated by the March 1 20 option On the next day Sal J6 sold the property to a subsidiary of Standard Enterprises for 574 as 00 720 3 contemplated by the March option 17 2006 The gain of approximately 00 000 197 was deposited into an account belonging to 5a1 Less than two weeks later on November 11 2006 Sal paid the outstanding balance on the defendant shome mortgage loan in the amount of 49 and 12 207 obtained cancellation of the mortgage The defendant signed a promissory note in favar of Sal in the amount of the home mortgage loan payment Sal testified that the defendant made payments on that note but no documentation of such payments was produced and he could not remember when the last payment was made ASSIGNMENTS OF ERROR 1 AND 2 In his first and second assignments of error the defendant argues that the State failed to prove beyond a reasonable doubt that he committed either charged offense of malfeasance in office Regarding count one he contends that there was insufficient evidence to prove either that he had actual knowledge of his brother s substantial economic interest in the land to be used for Pine Grove Subdivision or that he had the requisite specific criminal intent Regarding count two he contends that there was insufficient evidence to prove that he received any thing of economic value for assisting with passing the support resolution far Pine Grove Subdivision A conviction based on insufficient evidence cannot stand as it violates Due Process See U Const Amend S XIV La Const art I 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt 7ackson v Virginia 443 U 307 319 La Code Crim Proc S art 821B State v Ordodi 06 La 11 946 So 2d 654 660 The 0207 06 29 Iackson standard of review incorporated in Article 821 is an objective standard 4 for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence Louisiana Revised Statute 15 438 provides that the fact finder must be sarisfied that the overall evidence excludes every reasonable hypotheses of innocence See State v Patorno 01 La 2585 App 1 Cir 6 22 So 2d 1 144 21i02 Specific intent is that stat o mind ivhich exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act La R 14 Specific intent need not be S 10 1 proven as a fact but may be inferred from the circumstances of the transaction and the actions of the defendant State v Graham 420 So 2d 1126 1127 La 1982 Specific intent can be formed in an instant State v Cousan 94 La 2503 96 25 11 684 So 2d 382 390 The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact State v McCue 484 So 2d 889 892 La App 1 Cir 1986 The defendant was charged in both counts of the indictment with violating Louisiana Revised Statute 14 which provides in relevant part that 134 A Malfeasance in office is committed when any public officer or public employee shall 2 Intentionally perform any duty lawfully required of him in an unlawful manner To prove a violation of Section 134 the State must prove an affirmative duty delineated by statute or law upon the defendant as a public officer and that the defendant intentionally performed that duty in an unlawful manner State v Davis 0599 93 La 4 634 So 2d 1168 1170 94 11 The duty must be expressly imposed by law upon the official because the official is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges State v Perez 464 So 2d 737 741 La 1985 5 Count One V with 4c Knr ofBrother oting tual wledge sEconomic Interest In count one the duty a iolated by the defendant is set forth in legedly Louisiana Revised Statute 42 112B fl 1which states B No public servant except as provided in I 42 sha participate S 11 0 in a transaction invalving the gAVer entity in which to his actual amental knowledge any Qf the fol persons has a substantiai economic owing interest 1 Any member of his immediate family public A servant is defined as a public employee or an elected official La R 42 A involving a governmental ntity is defined S 1102 transaction 19 in pertinent part particular matter as any proceeding application which the public servant submission ar other such of the governmental entity in question knows or should know i or will be the subject of action by the s governmental entity La R 42 Substantial economic interest S 1102 23 means an economic interest which is of greater benefit to the public servant or other person than to a general class or group of persons subject to various exceptions not applicable to the present case La R 42 S 1102 21 The State theory was that the defendant introduced and voted on the s council resolution supporting an application for tax credits for Pine Grove Subdivision with actual knowledge that his brother intended to sell the land far the development to the developer and thereby participated in a transaction involving the governmental entity with actual la that his family member Sal Petitto owledge had a substantial economic interest in the transaction The evidence presented by the State included testimony from numerous witnesses including Freeman and Mark Tuneptine Freeman testif ed that in late February or early March 2005 he and the Tarrentines went to Amite to determine if the area was suitable for an LHFA development s Spitale Bar to discuss locating a development 6 They met the defendant at in his district According to Freeman the cor practae io n1e zn irepresen in the area s pan ua k i cal atives of a proposed project o discuss the otential dPvelopment After the initial trip I i iold Fxeeman to contact Sal Petitto avid urrexitine who Freemar l about ndi a suflt traa of Iand fo the dev On w bfle t iopznent March eeman c Q6 F m defendant to a u a c se tzip ec ii rd was es by the t o d t h id e i that al ken e i On March 12 2006 Sal acquire a exclusive opYion to purchase eight d en acres from the Investor Crroup th ame tract of land the defendant showed to Freeman on March 9 2006 The purchase price for Sal was 21 per acre 00 000 The defendant signed this option cont as a yvitness act On March 13 2006 the defendant introduced a resolution before the Tangipahoa Parish Council supporting the LHFA application for tax credits for Pine Grove Subdivision Under the 2006 rules for LHFA competitive funding a resolution of support from the local jurisdictio gave points Yowards the approval of an application for tax credits Mark Turrentine esti tha tax credits were tk ied e primary funding source for Standard Enter d nd accounted for arises veiopnnents approximately nin perc of t finan Their practice vvas to apply far Yy nt ei i ng the tax credits grior ta buying thE if d d rrvelopzr t t unanimorzs Tangi Parisfi Ccrwncil incP tlhE ci vcated for ahoa ading fendant the resolutian The def did net i ndant n z fi an counc mea beforE the l bers resolution was passed that his brother held n excl option to purcha e land siVe etY to be developed as Pine Grove Subdavision On March 17 2006 Sal granted Standard Eaterprises an exclu option to ive purchase the same land 2hat was subiect to Sa earliex op2ion to purchase The purchase pri for S Enterpris e andard stivas b32 an a C Qctober 30 04 U00 cre n 2006 Sal xercised ais o an aurchased the larid f 37 The next tion il or 16u OC e day Sal sold ti land tQ a diar subsi fStandard EnYerprises for JO JO 2 574 The defe arg Lha tn 5t x Y c tiaa he had actual darzt es 3e ilv ve t knowledge of Saf n r th subiec I rhe tria c found that the erPSt tr c csurk defendanthad t act kn r tie 1132 his finding tie zal e qa b tic 3 ge I ised v n ll is d support y th i nce Thv c3 eid a alty A lT es adusred tr iw e arit c resolution rrtrc b d 1 E ii council s v zr aat s s rG s a r Frother option to gureh Lhat 1 zt d e c ta ks uf Lis brother se 7 cg s n r uf b s econamic xnterest in the land The timing of the various rneetings and transactions and the contacts bztyveen Standard Enterprises the defendant and the defendant s brother all give rise to a reasonable inference that the defendant was aware of his s brother substantial ecanomic interest in th land th would be developed if t LHFA tax credits were obtained all of which was influenced by the passage of the s ppo council s tresolution The trial court also fo that appr ofthe ax crediYs vvas essential to the nd aval ment devela and therefore essential to 5 ecanomic intexest i the land that he s 1 sold to the developers The defendan introd and voted fox the rescrluron d supporting the LHFA appiicatic nFor tax credits The trial court surriznarr the zed evidence and iYs cignifcance 3u and accurately b stating Tjl cinctl e resolution meant pvints points m ioan appraval loan approvai meant the deal ant went through and if the deal went ou th brother gcat paid Viewing the evidence in ihe lightt most favorable to th proseL we cannot say that the n tzi trial conrt deterinir s tiorvas irr anai ti The triafl court rejected the deiendant aaf ke vvas nof his s serkioii vare a s hrother intexest in the Iand anei t land cornectiori t I Grc Subdivisior e a ine ve When a case i circtzmstantial evzdenc and ik Fact finder reasonably rejects voflves e the hypot of annocence pxesented by t defense that hfalxs and the iesis he pothesis defendant is guilty unless there is another hvpotnesis which raises a reasonable doubt State v L1 510 So 2tl 55 61 Ipp 1 Cir writ denied S i4 So 2d ter a 8 126 La 1987 An appellat cou srrs bv sul its appreciation of the e rt stituting evidence and credibility of witnesses for that o the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and ationally rby the fact nder See 5tate v Catloway 07 jected 2306 La 1l21 1 So 3d 4i7 18 per cur T trial court concluded that Q9 am he defendant knew about the deal fr9m da3 one V4 fnd hat onclusion was e rational based upon the evidence The defendant was prohibited by Section 1112B from engaging in a 1 transaction involving his governmental entity and an immediate family member who held a substantial economic interest in that transaction The trial court concluded that the defendant intentionally and unlawfully vialated that duty by introducing and voting for the supporting tax credits because that action resolution affected land in which his brother held a substantial economic interest We cannot say the trial court erred in making that determination Assignment of error number one is without merit Count Two Payment of Mortgage Loan In count two the duty allegedly violated by the defendant is set forth in Louisiana Revised Statute 42 which states 1 1111E No public servant and no legai entity of wihich such public servant is an officer director trustee partner or employee or in which such public servant has a substantial eco interest shall receive or agree to receive nomic any thing of economic value for assisfing a person in a transaction or in an appearance in connection with a transaction with the age f such public cy servant The State theory relative to count two was that in exchange for the s s defendant assistance in proposing and passing the resolution supporting the LHFA application for tax credits the defendant brother paid the balance of the s s defendant home mortgage loan The defendant argues that the evidance was 9 insufficient to support his corivictia nbecause th payment y the defendant s brother was a loan and not part of a quadpro uo agreement The State introduced evidence that Sal vrote a check in the amount of 12 20 49 on November 1 200 to pay the balance of tihe deferi home i s iana mortgage loan Sal iestified thaY this pay vu itself a Ioan eviti by a ng s ed n promissory note executed by the deferidant n the sar day He testified that the me defendant made payments on the note but he could not remember the date of the last payment Sylvia Shon a fonner reporter with the Hammond Daily Star testified that she asked the defendant about the source of the money used to pay his mortgage and he responded that it came from his business and different people The trial court stated I think this business about the promissory note is pretty much insultirig to my intelligence The trial court rejected Sal Petitto s stated reasons for paying the defendant home mortgage loan The trier of fact is s free to accept or reject in whole or in part the testimony of any witness State v Young 99 La App 1 Cir 3 64 So 2d 998 1006 Furthermore 1264 00 31 where there is conflicting testimony about factual matters the resolution of which depends upon a determination of th credibiliry of the witnesses the matter is one of the weight of the evidence not its sufficiency Young 764 So 2d at 1006 The defendant was prohibited by Section 1111E 1from receiving anything of economic value for assisting a persor in a transaction with his public agency he T trial court found that the defendant intentionally and unlawfully violated that duty by introducing and voting to pass the council resolution in support of the application far taac credits all in exchange for his brother aying off his home mortgage loan Viewing the evidence ir the light most favorable to the prosecution we cannot say that the trial court determination was irrational s nment Assi of error number two is without merit 10 IGNAVIENT AS OF EI2ROR 3 In his third assignment of error the defendant argues relative to count two that the trial court improperl shizted the burden of proof to the defendant by finding that evidence of the sworn wri statement required by Section 1111E ten was an affirmative defense The indictment harged the defendanx with vi Section 1111E The lating 1 sworn written statement provision is in paragraph a of Section 1111E 2which imposes a reporting requirement on an elected official The defendant was not charged with violating Section 1111E and nothing in the language of that 2 seetion suggests that filing a sworn statement insulates the filer from discipline for a violation of Section 1111E 1 The Supreme Court has recognized that eimpropriety may co thical exist with criminal conduct and the existence of the former does not pre the empt imposition of criminal sanctions for violation of a distinct penal statute Petitto 59 So 3d at 1253 Section 111 lE empowers the Board of Ethics to determine and sanction the conduct prohibited thereunder Such conduct can include reporting violations delineated under Section 1111E But the statute also defines a 2 duty lawfully required unaer the malfeasance statute Petitto 59 So 3d at 1249 Such a duty is found ir Section 1111E and does n incorporate a reporting 1 t requirement By charging he defendant under Section 1111E the duty 1 lawfully required of the defendant was conf ned to that specific provision Otherwise an elected of such as the defendant charged with criminally icial violaring Section 11llE conld absolve himself by filing a written 1 sworn statement while a public employee charged under the same section could not Such an interpretation would lead to absurd consequences Accordingly we find that the failure to file the notice required by Louisiana Revised Statute 42 is not ars element of a prosecution far malfeasance in 2 1111E ll office prediested on I tied tatu l111E nor rs t filing of tr L F t4 1j e e e notice an at affirr sv t fc ca ia i da r atia e Thi a er 1a c t r nm s of e s arit 1C i IE F Y V s SI li A In i fi rii c rc s rz a i f rs cie a E i Er court r er t ar n serts 3 se ia1 erred in i vti n denyi P ar zu iElac xn w ut 20i q 1 advanced n ti nc F five separate arguments specific i Yh xidic w duplicitoe under ally tment as s Louisiana Code of Criminal Procedure arC 5 ii the trial court lacked cle 2 3 jurisdiction under Louisiana Code of Criminal Procedare article 532 because 8 jurisdiction lies with the ethics board iii the ir was premature because dictment the ethics board had not adjudicated the matter iv the district attorney gave the grand jury an erroneous instruction because the grand jury is not empowered to retezrn a claarge on an ethics offense and v allowing the di at to trict orney initiate a criminal prosecution based an violation viqlat separation of on tl ical s powers Th en argum a asseyt in ii fj arAd s erh addre wl the district r attomey and he trial eourk acd jurisciicti nt bring tc rESide over a anci malfeasance t ioffice a aseczati ed pt ba an fcal u e2l ns latic iic TrAe duties imposed on pnl by Lm viseci Statntes 2 s officia iic aisiana 1and 11 1 1111E 42 may orm the for a charge of malfeas ia office Se Fetitto basia nce 59 So 3d at I254 Iyn in the P d s he power of the distrzct e licit titfio cisi on attorney to fnstitut srach ns utic c pres d a iad the ii rk a to hea f r e n i aese I 7ts argunn ar La me t o tk i The ar assert ra s s ttr ic ihraprcrgsez fi th pr to ent da c iii tY re s cution procee b h etlhzcs a ada whether t i aaa e y re fc aara ad ates ere tiaics olafiion The senc c the argurn is ir the proseculic f nt at nis pretnat Tha a a are tis t 2 i ground for zing quas an rx rz iPro art 532 e r iriki3 reF This argument is u rzzerit hciu The argu asse t i i Y zhe ir i duplicitous cnent ted en trr cia raa Duplicity s a a grc or c uashi tmzr ndi 5 La c ri Prqc Art d 3 ti t w ne 532 Dupiici P n n ei n Yhe C ri ITrqc but Qf Ve inal c n dure e al ced former Coc of rambr Pr rtie fn d it as the nii af two an s offenses in the same count F Code triinir nner alProcedure article 492 stated that a count in an indictment is not dupiicit because in stating the elements us caf the o charg fenSe dor des hdvv it vv cc it alleges cri acts ribirg mznitted inal which te r ense ld parately sti er ft wo s cor anotY e Articles 491 and 492 were irepealed by 197s a Acts or Io her o cffenses 528 Both 1 Code of Criminal Proc article 45 ric provides dure 3 iw Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged whether felonies or misdemeanc rsar of the same or similar character or are based on the same act ar transaction or on two or more acts or transactions connected together r constituting parts of a common scheme or plarl provided that the offenses joined must be triable by ihe same mode of triai Under this article a c tza be claarged with r offe an the sazne afendanY e ultip se indictznent if Ehos ffenses a based n the ame aets r txarzcde e s r i Tnu St was re to rdiff 3cts t s cor Qi aach te uired ave e t ar icti ns nt co of tihe i1 F caur trraant di r ine t State h t or the def e d ve ndant ly ki knowiaa pa irA a transau invoflbing tlhe rrirn tity c which pat ion ntai f he was xnember a and a r is rate bl e rneflr af itfanaily e S L RS 1 1112B 42 For count t the S hac o pr ti defendan reaeived any v ate ve e thinb of econon value for assistfng a person in a transaction wi hzs agencyr ic th a S 11 lj See L R 42 lE These statutes were set forth in th defendant s ent indietrr and d were pzoeided in ihe 5tate ans t the def ls ta s ver s dan 13 motion for bill of particulars The arg khat charges were duplicitous is ment the without merit The defendant also argues that tl char in counts one and two constitute a e ges double jeopardy vaolation A1thQUgh he da nc aise the issue in the trial aonrt we df consider its merits Louisi Code i F a 594 states ecause na nai 3ure m roce rticfle that double jeopardy can be rai at ny t ecl e r Both the federal and state constitutions provide thaYno person shall twice be put in jeopardy of life or liberty for the same offense U Const Amend V La S Const art I 15 The Double Jeopardy Clause protects the accused against multiple punishments for the same offense as well as a second prosecution for the same offense after aequittal or conviction State v Letell 12 La App 1 Cir 0180 12 25 10 103 So 3d 1129 1136 The defendant contends that his convictions violate Louisiana same s evidence test The same evidence test considers the actual physical and testimonial evidence necessary to secure a conviction State v Walliams 07 0931 La 2 978 So 2d 895 897 If the proc required to support a finding of 08 26 guilt of one crime w als suppont conviction of another crime the prohibition uld against double jeopardy bars a conviction for m than one crime Letel 103 So re 3d at 1136 The test depends on the proof necessary for a conviction not all ofthe evidence actually presented at trial State v Martin ll La App 1 Cir 1843 12 2 5 92 So 3d 1027 1031 writ denied 12 11 100 So 3d 836 La 12 1244 9 Therefore if the evidence requ to support a finding of uilt of one crime red would also support a conviciion another offense the defendant can be placed in for The Loxusiana Supre Court has also recognizeci the Blockburger test established in cne Blockburger v JS 284 299 304 19 wluch held that where the same act or transaction S U i2 constitutes iolation of iown distinct statutory provisions the test to be applied to detenmine whether there are tw4 offanses or only one is whether each provision requ proof of an res additional fact which the other does not See Szat v Martin 11 La App i Cir S 1843 12 2 92 So 3d 1027 1 writ denied 12 La I1 100 So 3d 836 In contrast the same 030 1244 12 9 evidence test is somewhat broader Staie v Cotton 0La 1 778 So 2d Sfz9 573 0850 Ol 29 14 jeopardy for only one of the tu Stat v S 95 L 9 679 o Y zndife 222E a 5 96 2d So 1324 132 em in origina hasis ll The charges against th defendaait were premised upon two separate violations of the Code of Governmenta Ethics Under count one ihe s had to ate prove that the defendant participated in a transactien involving his governmental entity when he had actual knowl that a member of his immediate family held a dge substantial economic interest in that transaction La R S 1 ll12B 42 The focus of that prosecution was the defendant participation in introducing and s approving the support resolution and his knowledge of his brother economic s interest in that transaction Under count two the state had to prove that the defendant received any thing of economic value in exchange for assisting a person in a transaction with his agency La R S 1 1111E 42 The focus of that prosecution was the payment of defendant shome mortgage loan by his brother A conviction on count one did not require evidence of defendant receipt of s any thing of economic value A conviction on count two did not require evidence that defendant had actual knowledge of his brother substantial economic interest s in the transaction Because the focus of the evidence for each charge was different we find that the defendant cenvictions do not violate the prohibition against s doublP jeopardy This argument is without merit For th faregoing reasons we affirm the defendant convictions and s sentences CONVICTIOiVS A1 SENTENCES AEFIRMED TD IS
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