Gaston Smith Response Dismiss Final

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, vs.

Case No. F08-003920 Judge Butchko

GASTON EVERETT SMITH, Defendant. RESPONSE TO DEFENDANT’S MOTION TO DISMISS CRIMINAL CHARGES THE STATE OF FLORIDA, by and through the undersigned counsel, files this response to the Defendant’s Motion to Dismiss the Criminal Charges. In what can be only termed as a desperate attempt to smear the State Attorney’s Office, the Assistant State Attorney prosecuting the case, and the Miami-Dade Police Department, the defendant has filed this utterly frivolous Motion to Dismiss the Criminal Charges in order to avoid a trial. The Motion is based on alleged prosecutorial conduct and makes certain unsupported allegations. The State will respond to each of these allegations and place the defendant’s motion into context in order to demonstrate to the Court that the motion is baseless, in bad faith, and has no merit.1

FACTS 1.

Pursuant to a subpoena issued by the Office of the State Attorney, Pastor Gaston

Smith was directed to appear at the State Attorney’s Office (“SAO”) to give a sworn statement in an Due to the fact that the motion to dismiss is based on allegations of prosecutorial misconduct, it is should have been sworn to by someone having direct knowledge of the facts. See State v. Bauman, 425 So. 2d 32, 34 (Fla. 4th DCA 1982). See also State v. Figuereo, 761 So. 2d 1252 (Fla. 3d DCA 2000) (factual basis for motion to dismiss based on due process violation should be pursuant to rule 3.190(c)(4), Florida Rules of Criminal Procedure). It seems that the real purpose of this motion is to force an evidentiary hearing in so that the defendant can harass the prosecutor through cross examination. 1

ongoing criminal investigation of Michelle Spence-Jones and others. Pastor Smith, at this time, was neither a target nor a subject of the investigation, and was given immunity through the issuance of the subpoena.

2.

Due to scheduling conflicts, Pastor Smith did not come to the State Attorney’s

Office to give his statement until September 13, 2007. Present for his statement were Assistant State Attorneys Richard Scruggs and Christine Zahralban, SAO Investigator Robert Fielder, MiamiDade Police Department (“MDPD”) Detective Joe Garcia, Pastor Gaston Smith, and his attorney Katherine (“Kate”) Meyers. The prosecutors decided, as they often did, to interview Pastor Smith first and not take a sworn statement until a subsequent session because the prosecutors had never spoken to Pastor Smith and neither Pastor Smith nor his attorney knew what questions were going to be asked. It is the usual practice of these prosecutors to first conduct an unsworn interview before a sworn statement, especially if the person is potentially an important witness such as was Pastor Gaston Smith. Therefore, at the beginning of the interview, Pastor Smith and his attorney were told that no sworn statement would be taken at that time, and that the interview would not be stenographically recorded. At the close of the interview, because the prosecutors had concerns about Pastor Smith’s proposed testimony, it was decided to conduct a second unsworn interview on October 5, 2007.2

3.

On October 5, 2007, Pastor Smith, still pursuant the original subpoena, returned to

the State Attorney’s Office for his second interview. In that interview, prosecutors told Pastor Smith that they believed that he was untruthful in his first interview. The State had issued a subpoena to the Custodian of Records for the Friends of MLK, Inc., Pastor Smith’s corporation. 2

Detective Garcia’s transcript of this interviews incorrectly gives the date as October 9, 2007. 2

The bank records had been produced; however, they did not include records for the period of time in which a $25,000 county grant, arranged by Michelle Spence-Jones, had been deposited and spent. 3 Prosecutors, therefore, wanted to ask Pastor Smith what had happened to the $25,000. Under questioning by the prosecutors, Pastor Smith stated that $8000 went to Michelle Spence-Jones and that he could not recall where the remaining $17,000 was spent. Pastor Smith was advised by the prosecutors that a subpoena had been issued to Washington Mutual Bank for the account of Friends of MLK, Inc., and that a third interview would be necessary after the State received the bank records since it was not known at that time what happened to the $17,000. Pastor Smith still was not a target or subject; instead prosecutors still wanted his truthful cooperation in order to advance a significant public corruption investigation.

4.

At a later date in October 2007, prosecutors received the bank records of Friends of

MLK, Inc. from Washington Mutual Bank.

Those records revealed that Pastor Smith had

withdrawn over $10,000 in cash from various ATMs and that the remainder of the $17,000 from the county grant had been spent on air travel, hotels, rental cars, etc. After the analysis of these bank records, Pastor Smith became a target of the investigation for the first time and attorneys for the Pastor were notified. However, despite his target status, the State was still interested negotiating with Pastor Smith’s attorneys for his truthful testimony in the ongoing corruption investigation.

5.

Because Pastor Smith was now a target, prosecutors were concerned that any

possible case could be tainted because the Pastor had been twice interviewed and granted immunity pursuant to a subpoena. In late October or early November, ASA Scruggs told Investigator Fielder Prosecutors later found out in the sworn statement of Pastor Smith’s assistant that Pastor Smith had the bank records in his possession, yet failed to turn them over. 3

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to contact MDPD Detective Garcia so that the two investigators could jointly draft detailed reports of Pastor Smith’s two interviews. The prosecutors were concerned about a Kastigar4 problem and wanted to ensure that any criminal charges could survive a Kastigar hearing. Investigator Fielder called Detective Garcia on that day or the next and was told for the first time that Detective Garcia had digitally recorded the “interview” of Pastor Smith.5 Investigator Fielder immediately told ASAs Scruggs and Zahralban about the recording by Garcia. ASA Scruggs became angry because he had been recorded without his knowledge. The recording of the defendant and his counsel was a secondary concern, because ASA Scruggs believed that the recording was legal, albeit ill-advised. He immediately contacted attorneys in the SAO’s Legal Division to verify that such a recording was legal and to determine whether Detective Garcia should be subject to legal sanctions. When that the Legal Division confirmed that the recording was legal, ASA Scruggs, while still angry, told Investigator Fielder that at least they had a tape for Kastigar purposes.

6.

According to Detective Garcia, he had recorded the interview in order to assist in his

drafting of a report. He, and other detectives in the MDPD Public Corruption Investigation Bureau (“PCIB”), had recorded interviews on numerous other occasions for the same reasons although apparently no recordings had occurred at the SAO. Supervisors in PCIB were aware of Detective Garcia’s recordings and did not stop him because it was legal and did not violate any of the policies of the Miami-Dade Police Department. However, they had never considered nor discussed making

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Kastigar v. United States, 406 U.S. 441 (1972).

Apparently Investigator Fielder and Detective Garcia understood this to mean that both interviews were recorded; however, ASAs Scruggs and Zahralban understood this to mean that only the second interview was recorded. 5

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a recording at the SAO of the prosecutor, the defendant, or the defendant’s counsel because the issue had never come up.

7.

During November and December 2007, the prosecutors and counsel for Pastor

Smith were engaging in discussions about the legal status of the Pastor. On a date unrecalled, sometime in November or December, ASA Scruggs notified attorney Kate Meyers that Pastor Smith had been recorded in the second interview by Detective Garcia. ASA Scruggs was not reporting illegal or improper activity by Detective Garcia; instead, he was simply reporting the illadvised actions of the detective. ASA Scruggs also advised Ms. Meyers that the recording could be used in a Kastigar hearing should charges be filed against Pastor Smith. ASA Scruggs did not say “we taped the sessions with you for Kastigar purposes,” as is alleged in paragraph 5 of the Defendant’s Motion to Dismiss. To have made this statement would have made no sense since Pastor Smith was not a target until weeks after the second interview had occurred.

8.

Upon being told of the recording, neither Ms. Meyers, Michael Tein, nor their senior

partner Guy Lewis, expressed any outrage, or even any concerns, that the recording had been made. Discussions between the prosecution and the defense continued in earnest up to and including January 23, 2008, when a meeting was held with the State Attorney and her senior staff. In none of these numerous discussions between the prosecution and defense was the recording ever mentioned. It was simply a non-issue. As part of these discussions, the prosecution provided Pastor Smith’s attorneys with copies of the bank records of Friends of MLK, Inc. in the belief that the records would assist them in making a realistic assessment of Pastor Smith’s criminal exposure. An example of the substance of these discussions can be seen in the contemporaneous notes of

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Investigator Fielder concerning a telephone conference between the prosecution and the defense on January 3, 2008. ASA Scruggs had advised that the negotiations concerning Pastor Smith had been unsuccessful and that he was to be arrested shortly after the New Year. In the notes of this meeting, it can been clearly seen that Pastor Smith’s attorneys believe that Pastor Smith would make a good witness for the State and that they would seriously consider a plea agreement. ASA Scruggs agreed to send them a proposed plea agreement and agreed to postpone Pastor Smith’s arrest. In this conversation, as with all others meetings and conversations until the January 23 meeting with the State Attorney, no mention of Detective Garcia’s recording was ever made. (See Copy of Investigator Fielder’s notes attached as Exhibit A).

9.

Pastor Smith’s attorneys decided to not respond to ASA Scruggs’ proposed plea

agreement and decided instead to present their case for no prosecution directly to the State Attorney. On January 23, 2009, Mr. Tein and Ms. Meyers met with the State Attorney and her senior staff including ASAs Scruggs and Zahralban (who was in and out of the meeting due to other responsibilities). As the meeting progressed, it became apparent that the State Attorney’s Office was strongly leaning toward the prosecution of Pastor Smith. Suddenly, as if according to a prearranged plan, Mr. Tein turned red in the face and angrily alleged for the first time that ASAs Scruggs and Zahralban, along with Investigator Fielder and Detective Garcia had conspired to secretly and illegally record Pastor Smith and his attorney, Ms. Meyers. This allegation caught ASA Scruggs totally by surprise since the recording had never before been raised by Pastor Smith’s attorneys. At no time during this meeting did ASA Scruggs state that “we taped it for Kastigar purposes.” Instead, he explained that the recording was legal and that it could be used in a Kastigar hearing. The Defendant’s statement of the facts in paragraph 7 of his motion is totally false.

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10.

After the meeting, ASA Scruggs decided to call Mr. Tein and explain to him what

had happened. ASA Scruggs explained to Mr. Tein that he had been unaware of Detective Garcia’s recording until after the fact. ASA Scruggs also apologized to Mr. Tein that it had happened even though it was not his fault. ASA Scruggs told Mr. Tein that, although the recording was legal, it nevertheless violated a professional understanding among attorneys. Mr. Tein was incredulous and abusive during this conversation causing ASA Scruggs to end the conversation by stating that he had told Mr. Tein the truth whether he (Tein) accepted it or not.

11.

ASA Scruggs, still angry at Detective Garcia, told Investigator Fielder to call him

and tell him what his actions had caused. Investigator Fielder reported back that Detective Garcia had also recorded Pastor Smith’s first interview on September 13, 2007. ASA Scruggs then immediately notified Mr. Tein of this second recording.

12.

On January 31, 2008, Pastor Smith was charged with one count of Grand Theft in

the Third Degree. Discs of the two recordings and transcripts were provided to the defense as part of discovery. The claim of the defense that somehow “the State created a false record of the interview” is outrageously untrue. The discs and the transcripts were turned over to the defense in the exact form and substance as they were received by the Office of the State Attorney. Mr. Tein’s main concern is that the recording starts at some point after the beginning of the interview, after ASA Scruggs told the defense that the interview would not be recorded. However, ASA Scruggs has always acknowledged that he made the statement that the interview would not be stenographically recorded, and Mr. Tein even admits this in paragraph 9 of his motion.

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13.

On November 18, 2008, Mr. Tein took the deposition of Investigator Robert Fielder.

In his deposition, Mr. Fielder confirms that he had no conversations with either Detective Garcia or ASA Scruggs before Detective Garcia’s recording of Pastor Smith’s interviews (p. 19), and that ASA Scruggs had advised Pastor Smith and his attorney at the beginning of the interview that he would not be placed under oath at that time and that the interview would not be stenographically recorded (pp. 19-22). Mr. Fielder also confirmed that he had no advance knowledge that Detective Garcia had recorded the first interview (p. 28) or the second interview (p. 33). In fact, Mr. Fielder did not find out that Detective Garcia had recorded the interviews until sometime after the second interview (p. 47) and states unequivocally that ASA Scruggs had no knowledge of the recordings until he was told by Mr. Fielder (pp. 49-50). According to Mr. Fielder, when ASA Scruggs was told about Detective Garcia’s recording, his first response was “tell him to preserve them.” (p. 54). (See Fielder’s deposition attached as Exhibit B).

14.

On December 2, 2009, Mr. Tein took the deposition of Detective Joaquin (“Joe”)

Garcia. In his deposition, Detective Garcia testifies that the recording of a witness by a police officer is legal under state law and that he did not seek the permission of the prosecutors to make the recording (pp. 32-33). He also confirms that he did not tell the prosecutors, particularly ASA Scruggs, that he had recorded the interviews because he “didn’t feel that he had to” (p 43) (See deposition of Detective Garcia attached as Exhibit C).

15.

At the conclusion of Detective Garcia’s deposition, while off the record, Mr. Tein

told Detective Garcia that a plea agreement in the case was in everyone’s best interest. Detective

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Garcia then reported this conversation to ASA Scruggs. A few weeks later, Larry Handfield, Esq., joined the defense team and discussions began once again between the prosecution and defense concerning a possible plea agreement. During these renewed discussions, neither Mr. Handfield nor Mr. Tein (nor Ms. Meyers) raised the issue of the alleged “illegal” recordings by Detective Garcia. In conversations and meetings which lasted for several weeks in early 2009, an agreement was reached in which the State would offer Pastor Smith pre-trial intervention (“PTI”), in return for his complete and truthful testimony, passing a polygraph, and restitution of the funds which he had stolen. After a lengthy and far-ranging interview session with prosecutors about everything that he knew about corruption in Miami-Dade County. Pastor Smith declined to proceed further with the interview or the plea agreement and decided, instead, to go to trial. It is important to note that Detective Garcia’s recordings were never a factor in the negotiations and were never even mentioned by any of the parties.

16.

Trial of the case of State v. Gaston Smith was originally scheduled to start in

October 2009, then was rescheduled to December 7, 2009. The pending trial has resulted in numerous conversations, letters, and emails between the prosecution and defense relating to witnesses, depositions, documents, stipulations, etc. At no time during all of these pre-trial contacts was the issue of Detective Garcia’s recordings ever mentioned. Then, suddenly out of the blue, as Mr. Tein did in the January 23, 2008 meeting with the State Attorney, he (with Mr. Handfield’s endorsement notably missing) resurrects the allegations about the alleged “illegal” recordings and the knowledge of ASA Scruggs. Despite the fact that he has sworn testimony from two witnesses directly to the contrary of his assertions, he has now filed the present Motion to Dismiss. Furthermore, and most egregious, Mr. Tein attempts to mislead the Court by purposely failing to

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state in his motion that he has taken the deposition of the only relevant witnesses (other than ASAs Scruggs and Zahralban) and that these witnesses totally discredit his assertions.

17.

On July 17, 2009, Gus Garcia-Roberts, a reporter from the Miami New Times, after

making a public records request, came to the Office of the State Attorney to view documents relating to Pastor Gaston Smith. Prior to his coming to the SAO, Mr. Garcia-Roberts had received the permission of Pastor Smith, and likely Smith’s attorneys, to follow Smith around Miami in order to document his good work and write a favorable story. ASA Scruggs had resisted the public records request of Mr. Garcia-Roberts for “all documents relating to Pastor Gaston Smith” because he did not want these documents sent out for copying since he was preparing for an October trial. At the request of the SAO’s public affairs personnel, ASA Scruggs agreed to meet with the reporter and see what exactly he wanted. When ASA Scruggs and Investigator Fielder met with the reporter, they each made it clear that they would help him go through the documents only if what they pointed out to him (the reporter) was off the record. Mr. Garcia-Roberts agreed to write his story solely from the documents; therefore, Scruggs and Fielder pointed out certain documents. The reporter then obtained copies of certain documents and left. Much to the surprise and chagrin of Scruggs and Fielder, when the article was published, it had not only some of their off-the-record statements, but also quotations from each which were totally made up by the reporter. Although ASA Scruggs is ultimately responsible for speaking to the reporter, albeit “off-the-record,” there was never any intent of either ASA Scruggs or Investigator Fielder to have their statements published (whether accurate or not), and no intent whatsoever to affect the defendant’s right to a fair trial.

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18.

Since this matter involving speaking to the press was raised by the defense, it is only

fair to point out to the Court Mr. Tein’s inflammatory statements to the news media. Immediately after Pastor Smith’s arrest, Mr. Tein was interviewed by most, if not all, of the local television stations. In these televised interviews, he railed against the Miami-Dade Police Department and the State Attorney’s Office for arresting and charging an “innocent” man. He also flashed copies of alleged accounting records which he asserted would prove that Pastor Smith was not guilty. An example of Mr. Tein’s statements is as follows:

February 2008 – CBS4 News Tein is so adamant that his client is innocent that he may file a a federal lawsuit against the police department accusing them of violating the pastor’s civil rights. . . . “[T]he Miami-Dade Police Department abusively went to arrest a man who was completely 100 percent innocent. How dare they go and arrest him without checking their facts, without looking at the math, without caring whether he’s actually innocent”

From February 2008 to the present date, Mr. Tein has taken advantage of every opportunity to criticize the State Attorney’s Office for improperly, illegally, and unethically prosecuting Pastor Smith. For example:

April 19, 2008 – Miami Herald [Tein] believes his client was arrested in an attempt to pressure him to provide more evidence against Spence-Jones- but he insists his client has said all he knows. [Concerning a proposed plea agreement] “They claimed that Pastor Smith committed the Great Train Robbery of the century and

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then they offered him a speeding ticket. We rejected that because he is innocent.” November 11, 2009 – Miami Herald “The case is a completely improper attempt to squeeze him to testify against Michelle Spence-Jones. I do think there is a witch-hunt going on here.” Mr. Tein’s statements to the news media are a clear attempt to prejudice the State’s case against Pastor Smith. However, he chooses to ignore his own statements, and, instead, make accusations against the prosecution.

LEGAL ANALYSIS

19.

Although, the facts as set forth above, and which would be proved at an evidentiary

hearing, clearly show that there was no prosecutorial misconduct whatsoever in this case, the State submits that this Court can and should deny the motion as facially insufficient without the need for an evidentiary hearing. See State v. Figuereo, 761 So. 2d 1252, 1255 (Fla. 3d DCA 2000) (court should deny motion to dismiss alleging due process violation if allegations if taken as true would not make out such claim). The premise of the motion to dismiss is that the prosecutor, Mr. Scruggs, 1) lied to defense counsel when he told counsel that he was unaware that Detective Garcia had secretly recorded two interviews with the defendant, defendant’s counsel, Mr. Scruggs, Detective Garcia, and Investigator Fielder at the State Attorney’s Office,6 and 2) made statements to the media concerning “unrelated, uncharged (and unsubstantiated) conduct in a thinly veiled effort to disseminate character and propensity evidence plainly inadmissible at trial, and to poison the jury At the status hearing on November 19, 2009, the defendant appeared to morph the claim into a general misconduct allegation to include all the prosecutors and law enforcement officers involved. 6

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pool.” Motion to Dismiss at p. 9. The defendant asserts that such an alleged lie amounts to “misconduct [that] is so outrageous and has infected the prosecution and potential trial of this case so severely that the charges must be dismissed.” Motion to Dismiss at p. 1. The State submits that even if any of the defendant’s allegations were true, which they manifestly and demonstrably are not, then they would not rise to a level which would require this Court to grant the defendant’s Motion to Dismiss.

20.

First, the State would suggest that the defendant’s Motion to Dismiss is facially

insufficient because other than citing to rule 3.190(b), Florida Rules of Criminal Procedure, nowhere in the Motion does it set forth under what legal theory the defendant believes he is entitled to have the charges dismissed. Thus, the State is left guessing which it should not have to do. The defendant is not pro se and neither the State nor this Court should be presuming under what legal basis the Motion to Dismiss is based.

21.

Second, if required to guess, the State will speculate that the defendant is asserting

that the prosecutorial misconduct that allegedly occurred in this case rises to the level of a violation of his due process rights under Article 1, Section 9, of the Florida Constitution. The Motion to Dismiss is facially insufficient to support that claim. For a claim of a due process violation under the Florida Constitution, which requires the dismissal of the prosecution, the defendant must show7 that there is egregious misconduct on the part of the prosecution or law enforcement agents that “requires that the courts refuse to invoke the judicial process to obtain a conviction where the facts of the case show that the methods used by law enforcement officials cannot be countenanced with a The burden is on the defendant to establish by competent and substantial evidence the thrust of his allegations in his motion to dismiss. State v. Wallace, 401 So. 2d 863, 864 (Fla. 1st DCA 1981). 7

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sense of justice and fairness.” State v. Williams, 623 So.2d 462, 467 (Fla. 1993).8 See also State v. Glosson, 462 So. 2d 1082 (Fla. 1985). There was no such egregious misconduct in this case.

22.

The defendant asserts that the State, through the prosecutors and law enforcement,

illegally taped two interviews with him in violation of section 934.03, Florida Statutes (2008). The State submits that there was no such illegality. First, contrary to the defendant’s assertions, he had no reasonable expectation of privacy in the conversations he had with the prosecutor and the law enforcement officers which took place at the State Attorney’s Office, regardless of whether he and his attorney were told that the conversations themselves would not be recorded. In State v. Smith, 641 So. 2d 849, 852 (Fla. 1994), the Florida Supreme Court held that for an oral conversation to be protected under section 934.03 “the speaker must have an actual subjective expectation of privacy, along with a societal expectation of privacy that the expectation is reasonable.” The Court, agreed with the reasoning of the Eleventh Circuit Court of Appeals in United States v. McKinnon, 985 F. 2d 525, 528 (11th Cir. 1993) when it found that there was no expectation of privacy in a police car, regardless of the status of the person engaging in the conversation, “where the locale of the conversations, rather than the status of the person doing the conversing, was the controlling factor.” 641 So. 2d at 852. In addition, other factors which can be considered in determining whether there is a reasonable expectation of privacy are “the number of persons present when the statements were made, the place chosen for the interview, and the very nature of the interview.” Department of Agriculture and Consumer Services v. Edwards, 654 So. 2d 628, 632-633 (Fla. 1st DCA 1995) (no If the defendant is alleging a violation of the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution, that would require dismissal of the charges, the standard would be similar i.e., government misconduct does not mandate dismissal of an indictment unless it is so outrageous that it is shocking to the universal sense of justice, and as such, it violates the principle of fundamental fairness under the due process clause. United States v. Russell, 411 U.S. 423, 431-32 (1973). 8

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reasonable expectation of privacy in police sergeant’s office for statements made in front of three supervisors).

23.

In this case, the locale of the conversation, the State Attorney’s Office, in the

presence of prosecutors and law enforcement officers, was clearly not a place or situation where, even if a person has a subjective expectation of privacy, he does not have one in which society recognizes is reasonable. The State submits that the State Attorney’s Office is akin to the police car or the police sergeant’s office for purposes of whether the expectation of privacy is reasonable. In fact, there is arguably an even lesser expectation of privacy in this case where the defendant and his attorneys knew that the conversations between themselves, the prosecutors and the law enforcement officers were going to be recorded in some manner, albeit, perhaps not by an audio recording, but by someone taking notes.

24.

Second, contrary to the defendant’s assertions, Detective Garcia could record the

conversation pursuant to section 934.03(2)(c), Florida Statutes, which provides that a law enforcement officer can intercept the conversations if “the purpose of such interception is to obtain evidence of a criminal act.” The defendant relies on the case of Atkins v. State, 930 So. 2d 678 (Fla. 4th DCA 2006), for the proposition that the statute does not permit a conversation with a “mere witness” to be surreptitiously recorded. Although the State believes that much of Atkins is dicta and does not agree with this broad statement, it is clearly distinguishable from the facts in this case. In Atkins, the person recorded was not a witness to the crime, but was someone who had conversations with the victim after the crime. In this case, although not a target of the criminal activity that the State was investigating at the time of the recording, the defendant was not a “mere

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witness” either. The defendant was a witness with direct knowledge as to the criminal activity that was being investigated. Thus, Detective Garcia could record the defendant’s statements to obtain evidence of the criminal activity that was the subject of the investigation.

25.

Third, the State is also guessing that the defendant may be asserting that there was

some kind of violation of a State Attorney Office policy concerning the recording of the defendant without their knowledge. Whether there was a violation of office policy is irrelevant as such cannot be a ground for sanctions, be it suppression of the evidence or dismissal of charges, where that violation does not rise to the level of a constitutional violation. See United States v. Caceres, 404 U.S. 741, 99 S.Ct. 1465 (1979) (failure of IRS agent to follow IRS electronic surveillance regulations before recording conversations between taxpayer and agent did not require suppression of tape recordings in prosecution of taxpayer accused of bribing IRS agent). See also Jenkins v. State, 978 So. 2d 116 (Fla. 2008) (exclusionary rule is not a remedy for a violation of the stripsearch statute unless a constitutional violation has also occurred).

26.

However, of more importance is the simple fact that the State and the defendant

have always known from the time the defendant walked into the State Attorney’s Office pursuant to a subpoena issued under section 27.04, Florida Statutes, that by operation of law, the defendant was given use and derivative use immunity for his statements. See Jenny v. State, 447 So. 2d 1351 (Fla. 1984). Thus, there is no need to for this Court to “suppress” the statements as suggested by the defendant in his Motion at p. 6, fn. 4, as they cannot be used in this prosecution. 9 Furthermore, The defendant in this footnote also alludes to some sort of Sixth Amendment implications. Again, the State should not have to guess what those are. However, making its best guess, the State submits that there is no such Sixth Amendment issue because there was no secret intrusion into the attorney-client relationship, no privileged confidential information was revealed, see e.g., Mobley v. State, 409 So. 2d 1031, 1038 (Fla. 1982), and nothing was gained that was a 9

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there is no showing that the prosecutors or the law enforcement officers engaged in such egregious misconduct that requires the charges be dismissed. See e.g., State v. Matera, 401 So. 2d 1361 (Fla. 3d DCA 1981)(defendant’s convictions should not have been vacated on the basis that New York law enforcement officers had illegally taped conversations between the defendant and his attorney where it was not shown that this violation produced anything that affected the defendant’s trial).

27.

The defendant also alleges that due to statements made by the prosecutor to the

media concerning the defendant’s conduct which would be inadmissible at trial, charges should be dismissed. Again even if true, the actions by the prosecutor do not rise to the level of the type of egregious misconduct that violates due process and requires a dismissal. Any prejudice to the defendant can be remedied at trial during voir dire when jurors are questioned about what they know or have heard about this case. See Bolin v. State, 736 So. 2d 1160 (Fla. 1999) (establishes procedure for voir dire or jurors who are aware of media accounts of the case, including information that would be inadmissible at trial). If pretrial publicity is so perverse, then the remedy is for either a continuance to allow the prejudicial publicity to abate or to change venue for the trial, see Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S. Ct. 1507, 1522 (1966), not dismissal of the charges.

28.

It is clear that dismissal of charges is the sanction of last resort, not first resort. State

v. Del Gaudio, 445 So. 2d 605, 608 (Fla. 3d DCA 1984). As stated above, the audio recording of the defendant cannot be used against the defendant, nor can anything derived from those statements. The defendant claims that the prosecutor has violated his ethical obligations under the Rules Regulating the Florida Bar. Although, the State submits that the prosecutor has not violated any such obligations and has acted completely ethically in his dealings with the defendant and the benefit to the State. See State v. Matera, 401 So. 2d 1361, 1364 (Fla. 3d DCA 1981). 17

media, even if there was an ethical violation, the appropriate sanction could be to refer the prosecutor to the Florida Bar. Dismissal is clearly not a remedy. See, e.g., Suarez v. State, 481 So. 2d 1201 (Fla. 1985) (mere violation of Bar rules does not require suppression of evidence).

29.

Prosecutorial or law enforcement misconduct which is not egregious cannot be the

basis for a dismissal or preclusion of the prosecution. In Gore v. State, 784 So.2d 418, 427 (Fla. 2001), the Florida Supreme Court held that neither the Double Jeopardy Clause of the United States or Florida Constitutions prevented the State from retrying a defendant whose conviction was reversed on appeal due to prosecutorial misconduct which caused error in the proceedings. See also Ruiz v. State, 743 So.2d 1, 9-10 n. 11 (Fla. 1999); Keen v. State, 504 So.2d 396, 402 n.5 (Fla. 1987). The State has not conducted itself in any manner that could be deemed to be intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial. See State v. Figuereo; State v. Blanco, 896 So. 2d 900 (Fla. 4th DCA 2005) (en banc); State v. Myers, 814 So. 2d 1200 (Fla. 1st DCA 2002). Thus, there is no grounds for dismissal or any other alternative sanctions against the State.

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CONCLUSION WHEREFORE, based on the foregoing, the State respectfully requests that this Court deny the Defendant’s Motion to Dismiss the Criminal Charges. Respectfully submitted KATHERINE FERNANDEZ RUNDLE State Attorney By: ____________________________ RICHARD SCRUGGS Assistant State Attorney Florida Bar #887640 1350 N.W. 12th AVENUE Miami, FL 33136-2111 (305) 547-0100 By: _____________________________ PENNY H. BRILL Assistant State Attorney Florida Bar #305073 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and exact copy of the above was furnished to GUY A. LEWIS, ESQ. and MICHAEL R. TEIN, ESQ., LEWIS TEIN P.L., 3059 Grand Avenue, Suite 340, Coconut Grove, FL 33133 and LARRY R. HANDFIELD, ESQ., 4770 Biscayne Boulevard, Suite 1250, Miami, Fl 33137, on this 30th day of December, 2009.

By: ________________________________ RICHARD SCRUGGS Assistant State Attorney

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