IN THE SUPREME COURT OF FLORIDA. v. TFB NO.: ,435(13D)

Transcription

1 IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Complainant, CASE NO.: SC v. TFB NO.: ,435(13D) WILLIAM CHRISTIAN ROCKER, Respondent. / RESPONDENT S INITIAL BRIEF SCOTT K. TOZIAN, ESQUIRE Florida Bar No GWENDOLYN H. HINKLE, ESQUIRE Florida Bar No Smith and Tozian, P.A. 109 N. Brush Street, Suite 200 Tampa, Florida (813) Attorneys for Respondent 1

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS...iii SYMBOLS AND REFERENCES... vi STATEMENT OF THE CASE AND FACTS... 1 STANDARD OF REVIEW... 8 SUMMARY OF THE ARGUMENT... 9 ARGUMENT ISSUE ONE: The findings of fact are clearly erroneous because the Referee drew adverse inferences from Respondent s invocation of his Fifth Amendment rights which improperly influenced the Referee s consideration of the evidence and incorrectly shifted the burden of proof to Respondent A. The Florida Supreme Court should prohibit bar prosecutors and referees from drawing adverse inferences from an attorney s invocation of the right against self-incrimination B. The Bar instructed the Referee to consider Respondent s silence, suggesting that his silence equated with guilty and improperly shifting the burden of proof...16 C. As a result of the Bar s arguments, the Referee improperly inferred guilt from Respondent s invocation and failed to hold the Bar to its burden of proof.20 ISSUE TWO: A review of the untainted evidence warrants a sanction less than disbarment CONCLUSION i

3 CERTIFICATION OF FONT SIZE AND STYLE CERTIFICATE OF SERVICE ii

4 TABLE OF CITATIONS CASES Florida Bar v. Burke, 578 So. 2d 1099 (Fla. 1991) 16 Florida Bar v. Clark, 582 So. 2d 620 (Fla. 1991) 26 Florida Bar v. Fertig, 551 So. 2d 1213 (Fla. 1989)...25, 26 Florida Bar v. Lord, 433 So. 2d 983 (Fla. 1983).13 Florida Bar v. Marable, 645 So. 2d 438 (Fla. 1994).. 22, 23 Florida Bar v. Miele, 605 So. 2d 866 (Fla. 1992)..8 Florida Bar v. Pettie, 424 So. 2d 734 (Fla. 1983) 24, 25, 26 Florida Bar v. Quick, 279 So. 2d 4 (Fla. 1973)...20 Florida Bar v. Rayman, 238 So. 2d 594 (Fla. 1970) 21 Florida Bar v. Rood, 622 So. 2d 974 (Fla. 1993) 16 Florida Bar v. Scott, 566 So. 2d 765 (Fla. 1990).20 Florida Bar v. Weiss, 586 So. 2d 1051 (Fla. 1991).20 Florida Bar v. Wohl, 842 So. 2d 811 (Fla. 2003)..8 Fraser v. Security and Inv. Corp., 615 So. 2d 841 (Fla. 4 th DCA 1993).10 Griffin v. California, 380 U.S. 609 (1965) 10, 12, 13, 14 In re Davey, 645 So. 2d 398 (Fla. 1994).17 In re Silverberg, 327 A. 2d 106 (Pa. 1974)..14 In re Woll, 194 N.W. 2d 835 (Mich. 1972)...12, 13 iii

5 Matter of Baluss, 28 Mich. 507 (Mich. 1874).13 Pet for Rev. of, or Amend. to, the Integration Rule of the Fla. Bar, 103 So. 2d 873 (Fla. 1956)..15 Re Oxman, 344 A. 2d 804 (Pa. 1975).14 Sheiner v. State, 82 So. 2d 657 (Fla. 1955).15 Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983)...17 Spevack v. Klein, 385 U.S. 511 (1967).11, 12, 13, 15 State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986)...10 State v. Kinchen, 490 So. 2d 21 (Fla. 1985) 10 Vasquez v. State, 777 So. 2d 1200 (Fla. 3d DCA 2001). 10 RULES REGULATING THE FLORIDA BAR 3-7.6(f)(1) 11 FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS Fla. Stds. Imposing Law. Sancs. 9.22(b) Fla. Stds. Imposing Law. Sancs. 12.1(b) CONSTITUTIONAL PROVISIONS Art. I, 9, Fla. Const...11 Fifth Amendment to the United States Constitution.11, 13 iv

6 SECONDARY SOURCES 30 ALR 4 th 243 6, Extent and determination of attorney s right or privilege against disbarment or other disciplinary proceedings post Spevack cases...12 v

7 SYMBOLS AND REFERENCES The following abbreviations and symbols are used in this brief: Resp. Exh. = Respondent s Exhibit from final hearing. TFB Exh. = The Florida Bar s Exhibit from final hearing. RR. = Report of Referee. T. = Transcript of Final Hearing before Referee on December 3, ST. = Transcript of Sanctions Hearing before Referee on December 15, vi

8 STATEMENT OF THE CASE AND FACTS Respondent and James Yadon became acquainted while they attended high school. (T. 88). Following high school graduation, Respondent and Mr. Yadon took separate paths. Respondent went to college and law school. He was admitted to The Florida Bar in (T. 163). On the other hand, Mr. Yadon moved to Myakka City, Florida and operated a grow house cultivating 105 marijuana plants. (T. 91). In 1996, Mr. Yadon was convicted of manufacturing marijuana with the intent to distribute and was sentenced to one year in federal prison followed by three years of supervisory release. (T ; 116, 117). After his release from prison, Mr. Yadon and Respondent became reacquainted. Respondent explained to Mr. Yadon that his wife had leased an apartment at the same time that he had leased a house located at 3910 South Lynwood Avenue in Tampa, Florida. (TFB Exh. 3; T. 151). As a result, Respondent and his wife were obligated to make two rent payments. Believing that Mr. Yadon needed assistance, Respondent offered to sublease his house to Mr. Yadon. (T. 148). Instead of moving into the home, Mr. Yadon used the residence to cultivate cannabis. When Respondent discovered Mr. Yadon s enterprise, Mr. Yadon 1

9 threatened to harm Respondent and his family if Respondent told anyone about the manufacturing operation. (T ). Mr. Yadon reminded Respondent that he knew where Respondent s wife, sister and parents lived. (T. 79). In the meantime, the neighbors became suspicious because no one appeared to reside at the home, the windows were blacked out, the air conditioning appeared to be running on cold days and they noticed an unusual earthy smell coming from the house. The neighbors contacted the Tampa Police Department. (T. 15, 16, 18-19). The police applied for and served a search warrant on April 10, (T. 50; RR. 3). The search revealed 214 marijuana plants and hydration, lighting and ventilating equipment to assist in the growth of the plants. (TFB Exh. 2). The police immediately arrested Respondent, whose name was on the lease for the property. (T. 150). After hiring a lawyer, Respondent agreed to make a proffer to the investigating detectives. (T. 151). He related Mr. Yadon s agreement to sublease the South Lynwood Avenue house to Mr. Yadon after he and his wife leased two different properties at the same time. (T. 79). Respondent further explained that when he discovered the marijuana cultivation enterprise, Mr. Yadon threatened to hurt him and his family unless he cooperated. (T. 152). The supervising sergeant terminated the proffer because he believed Respondent was contesting the charges, rather than describing his involvement to mitigate his 2

10 criminal exposure. (T. 153). The sergeant advised Respondent to choose between litigating the charges or mitigating the sanctions. (T. 153). Respondent contested the charges. Following the execution of the search warrant, the police questioned but did not arrest Mr. Yadon. (T , 119, 123). At this time, the detectives knew that Mr. Yadon had a prior federal conviction for cultivating marijuana arising out of the 1996 Sarasota case. (T. 71, 154). In an effort to convince Mr. Yadon to cooperate, the detectives told him that he was in jeopardy of state and federal prosecution with the prospect of significant jail time. (T. 71). Mr. Yadon knew that he was facing ten years in prison and agreed to provide substantial assistance and to testify against Respondent. (T. 71, 110, 120). On August 5, 2003, Mr. Yadon pled to a state charge of cultivating marijuana based on the plants and equipment discovered in the South Lynwood Avenue house in exchange for the state withholding adjudication and agreeing to eighteen months of probation. (T. 124). As a special condition of the plea agreement, the state required Mr. Yadon to testify against Respondent. (T. 125). During Mr. Yadon s plea colloquy, the judge informed Mr. Yadon, [s]o right now, you re not a convicted felon. You understand that? (Resp. Exh. 1, p. 14). Mr. Yadon untruthfully responded to the judge, Yes, sir even though he clearly 3

11 understood that he had previously been adjudicated on the federal marijuana conviction charge. (Resp. Exh. 1, p. 14; T ). Respondent s criminal defense lawyer filed a motion to suppress the search based on a faulty search warrant. (T. 159). After reviewing the motion, the state entered a notice of nolle prosequi dismissing the charges against Respondent. (T. 159.) Although the state charges had been dismissed, Respondent reasonably believed that the United States Attorney s Office could still pursue federal charges. (T. 160). The supervising sergeant informally discussed Respondent s arrest with the federal government. (T. 156, 160). While the sergeant had repeatedly told Respondent s criminal defense attorney that the United States Attorney s Office had opened an intake file to investigate Respondent, the United States Attorney s Office informed Respondent s attorney that they were not investigating Respondent and were not pursuing criminal charges at that time. (T , 174). A disciplinary hearing was held on December 3, Respondent did not contest that Mr. Yadon operated a grow house at the South Lynwood property. However, Respondent disputed the allegation that he had participated in Mr. Yadon s efforts to cultivate marijuana. Bridgett and Daniel Williams, who lived in the property immediately adjacent to 3910 South Lynwood Avenue, testified to the 4

12 unusual activity surrounding the property but were not able to associate Respondent with any of the activity. (T. 32). Mr. Williams testified that he had seen Respondent at the property approximately four to five times and Mrs. Williams did not quantify the number of times she saw Respondent at the property. (T. 31). Neither of them described Respondent carrying anything into or out of the house. The Bar s primary evidence was Mr. Yadon s testimony. Although Mr. Yadon claimed that Respondent and he planned to cultivate marijuana together, he could not remember who initiated the conversation and stated that he was real cloudy about a lot of the facts. (T. 93). Mr. Yadon testified that he would buy the plants, do the labor and sell the drugs. (T. 99). The Bar offered no evidence, such as check registers or the testimony of the landlord to corroborate Mr. Yadon s claims that Respondent continued to pay the lease on the property or the electric bills. (T. 102). Mr. Yadon purchased all the items for the marijuana cultivation but could not remember if Respondent accompanied him, gave him cash for the items or reimbursed him for the equipment. (T. 114). Mr. Yadon testified, I have a hard time remembering details from yesterday let alone a year and a half ago. (T. 114). 5

13 Respondent invoked his Fifth Amendment right against self incrimination due to the possibility of a federal prosecution. Based on advice of counsel, Respondent limited his testimony to the date he was admitted to The Florida Bar and to the absence of any disciplinary history. (T. 162). During closing, The Florida Bar highlighted Respondent s invocation by arguing that Mr. Yadon s testimony was the only evidence before the court and that there was no proof of anything to contradict Mr. Yadon s testimony. (T. 185, 198). In concluding its initial argument, the Bar argued, (T. 188). We have no testimony whatsoever from Mr. Rocker. I understand he takes the Fifth. He has the right to take the Fifth Amendment, but I would suggest to this Court that the evidence before this Court is sufficient to find by clear and convincing evidence that Mr. Rocker was indeed involved with a criminal activity and that he violated the rules as charged. In the Report of Referee entered on December 23, 2004, the Referee noted, Respondent did not testify until the discipline phase of these proceedings and offered no direct testimony as to his involvement or lack of involvement in the scheme to manufacture and sell marijuana. (RR. 2). Further, the Referee indicated that he did not accept Respondent s explanation of events as set forth in his proffer to the police because Respondent s failure to testify or offer any direct evidence as to the alleged blackmail leaves the referee with untested hearsay as a 6

14 basis for his assertion. (RR. 2). The Referee recommended that Respondent be disbarred. (RR. 4). Respondent timely filed his Petition for Review on February 17, 2005 and this appeal follows. 7

15 STANDARD OF REVIEW The Court is precluded from reweighing the evidence and substituting its judgment for that of the referee and should presume that the factual findings are correct and uphold the findings unless clearly erroneous or lacking in evidentiary support. Florida Bar v. Wohl, 842 So. 2d 811, 814 (Fla. 2003)(citations omitted). Respondent submits that the Referee s findings of fact are clearly erroneous, and is therefore the objecting party. Florida Bar v. Miele, 605 So. 2d 866, 868 (Fla. 1992). The objecting party carries the burden of showing that the Referee s findings of fact are clearly erroneous. Id. The Court s scope of review in considering discipline is broader and should only uphold the referee s recommended sanction if it has a reasonable basis in existing case law. Wohl at

16 SUMMARY OF THE ARGUMENT The Florida Bar improperly encouraged the Referee to draw an adverse inference from Respondent s invocation of his Fifth Amendment rights by arguing that there was absolutely no testimony from Respondent and that the only testimony was uncontradicted by Respondent. Mr. Yadon, the only witness who testified that Respondent willingly participated in the grow house operation, did not provide credible testimony. Rather than independently assessing Mr. Yadon s credibility, the Referee accepted Mr. Yadon s testimony merely because Respondent offered no direct testimony in rebuttal and thus, the Referee erroneously considered Respondent s invocation of his Fifth Amendment rights. Respondent requests the Court to remand this matter before another Referee to evaluate the evidence without consideration of Respondent s invocation. Even if the Court determines that remand is not appropriate, a review of the credible record evidence only shows that Respondent had knowledge of but did not participate in the marijuana operation. Respondent s failure to report the enterprise due to his fear of harm to his family members warrants a sanction less than disbarment. 9

17 ARGUMENT ISSUE ONE: The findings of fact are clearly erroneous because the Referee drew adverse inferences from Respondent s invocation of his Fifth Amendment rights which improperly influenced the Referee s consideration of the evidence and incorrectly shifted the burden of proof to Respondent. A. The Florida Supreme Court should prohibit bar prosecutors and referees from drawing adverse inferences from an attorney s invocation of the right against selfincrimination. It appears that the Florida Supreme Court has not specifically commented on a Bar prosecutor s obligations concerning a responding attorney s invocation of his right against self-incrimination during attorney disciplinary proceedings. It is well established that commenting on an accused s right to remain silent is clearly prohibited in criminal matters. Griffin v. California, 380 U.S. 609 (1965); State v. Kinchen, 490 So. 2d 21, 22 (Fla. 1985); State v. DiGuilio, 491 So. 2d 1129, 1136 (Fla. 1986). On the other hand, several Florida District Courts of Appeal have found that a party in a Florida civil proceeding is permitted to argue negative inferences from the Fifth Amendment invocation of an adverse party. Fraser v. Security and Inv. Corp., 615 So. 2d 841, 842 (Fla. 4 th DCA 1993); Vasquez v. State, 777 So. 2d 1200 (Fla. 3d DCA 2001). Since attorney disciplinary proceedings are quasi-judicial in nature, they can not be readily classified as civil or criminal and thus, the case law pertaining to 10

18 civil and criminal proceedings is not directly applicable. See R. Regulating Fla. Bar 3-7.6(f)(1)( A disciplinary proceeding is neither civil nor criminal but is a quasi-judicial administrative proceeding ). It is respectfully submitted that the dire consequences to livelihood and reputation caused by attorney discipline constitute significant penalties which would compel an attorney to relinquish Fifth Amendment rights if the invocation could be used against them during disciplinary proceedings. Failure to restrict the prosecutor s comment on and the referee s consideration of the attorney s invocation severely impacts the rights guaranteed by the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Constitution of the State of Florida. The United States Supreme Court solidified an attorney s right to invoke his Fifth Amendment privilege against self-incrimination during disciplinary proceedings without fear that the invocation would result in disbarment. Spevack v. Klein, 385 U.S. 511 (1967). In Spevack, the Court acknowledged that attorneys would feel compelled to relinquish the [Fifth Amendment] privilege if the invocation could be used against them. The Court stated, [t]he threat of disbarment and the loss of professional standing, professional reputation and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege. Spevack at

19 The broad protections historically granted the Fifth Amendment require the prohibition of any penalty that makes the assertion of the Fifth Amendment privilege costly. Spevack at 515 (citing Griffin v. California, 380 U.S. 609 (1965)). Any negative inference of guilt based on the invocation is a common penalty that might dissuade someone from asserting their privilege. In order to avoid this penalty, the Court has forbidden either comment by the prosecution on the accused s silence or instructions by the court that such silence is evidence of guilt. Spevack at 515 (quoting Griffin at 614.) Other jurisdictions have determined that a negative inference should not be drawn from the invocation during attorney disciplinary proceedings. 1 The Michigan Supreme Court prohibits bar prosecutors from arguing that an attorney s silence, after invoking the right against self-incrimination, equates with guilt. In re Woll, 194 N.W. 2d 835 (Mich. 1972). In Woll, the bar prosecutor argued that the responding attorney s invocation showed he had something to hide and that the finder of fact had to draw inferences from the invocation since its job was to test the credibility of the evidence. Id. at 837. The Michigan Supreme Court reversed the disciplinary conviction because the bar s comments violated the attorney s 1 See generally 30 ALR 4 th 243 6, Extent and determination of attorney s right or privilege against disbarment or other disciplinary proceedings post Spevack cases. 12

20 constitutional rights under state law and the Fifth Amendment to the United States Constitution. In reaching its decision, the Woll court examined Spevack v. Klein and noted its reliance on Griffin v. California, which determined that comments by the prosecutor or the court on the accused s silence is improper. In determining whether Griffin s prohibition against commenting on an invocation is applicable in attorney disciplinary proceedings, the Woll court noted the potential consequences of a disciplinary hearing on the responding lawyer. In pertinent part, the Woll court quoted an earlier case finding, [w]hile not strictly a criminal prosecution, it is of that nature, and the punishment, in prohibiting the party following his ordinary occupation, would be severe and highly penal. Id. at 838 (quoting Matter of Baluss, 28 Mich. 507, 508 (Mich. 1874)). Thus, the Woll court characterized attorney disciplinary proceedings as quasi-criminal recognizing that the significant penalties potentially imposed on an accused lawyer could seriously compel an attorney to relinquish his Fifth Amendment rights. Similar to Michigan, Florida recognizes the penal nature of attorney disciplinary proceedings. Indeed, one of the primary purposes of attorney discipline is to punish a breach of ethics. Florida Bar v. Lord, 433 So. 2d 983 (Fla. 1983). In contrast, civil proceedings are instituted to address private 13

21 grievances. Since attorney disciplinary proceedings are at least partially punitive in nature, an attorney is more compelled to give up the Fifth Amendment privilege for fear that his or her silence will be used to argue guilt or to impose a greater sanction. Consequently, greater restrictions on the implications of invoking the Fifth Amendment are warranted. The Pennsylvania Supreme Court also prohibits bar prosecutors from referencing the responding attorneys invocation of their Fifth Amendment rights. In re Silverberg, 327 A. 2d 106 (Pa. 1974). The Pennsylvania Supreme Court relied on the reasoning of Griffin v. California as well in determining that bar counsel can not attempt to diminish the credibility of the responding attorney by referencing the attorney s invocation. Id. at 111 (quoting Griffin at 614 ( For comment on the refusal to testify...is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. )). In a related case of Re Oxman, 344 A. 2d 804 (Pa. 1975), the Pennsylvania Supreme Court held that the appropriate remedy for improper bar prosecutorial argument regarding invocation is a new hearing rather than mere reconsideration of record evidence. As in Michigan and Pennsylvania, the Florida Supreme Court has long recognized that attorneys should not be penalized for the invocation of their Fifth 14

22 Amendment rights. For example, in 1956, the Florida Supreme Court specifically rejected the Bar s petition for a rule which would have held that an attorney s refusal to answer an inquiry into communist party membership was prima facie evidence that [the attorney was] unfit to continue to exercise the privilege to practice law. Pet for Rev. of, or Amend. to, the Integration Rule of the Fla. Bar, 103 So. 2d 873 (Fla. 1956). While the Court agreed that attorneys should be held to a higher standard by virtue of the privilege to practice law and the attendant responsibilities, the Court determined that the proposed rule would jeopardize an attorney s constitutionally protected rights. Id. at 877. In pertinent part, the Court quoted its earlier holding as follows: This court is committed to the doctrine that claiming the privilege against self-incrimination is not a disgrace; it is not to be construed as an inference of guilt or that the one who claims it is addicted to criminal tendencies; it may be claimed by the innocent as well as the guilty and its exercise may not be considered a breach of duty to the court. Id. at 875 (quoting Sheiner v. State, 82 So. 2d 657 (Fla. 1955)). Not only are attorneys permitted to invoke their Fifth Amendment privilege in disciplinary proceedings, the Bar should not be allowed to argue any negative inferences from the invocation. The Spevack court was concerned that the threat of disbarment would compel attorneys to waive their right against selfincrimination. Attorneys would be similarly penalized if the Bar was permitted to 15

23 argue that their silence equates with guilt. There is no substantive difference between disbarring an attorney merely for invoking his/her rights and utilizing the invocation as proof of guilt in seeking disbarment. In either case, lawyers would feel compelled to relinquish the privilege in order to avoid the adverse implication that their silence simply means that they do not or could not dispute the charges. The Florida Supreme Court should preserve its history of protecting the Fifth Amendment and prohibit the compulsion caused by the unfair dilemma of choosing between the privilege against self-incrimination and the fear of losing one s livelihood. B. The Bar instructed the Referee to consider Respondent s silence, suggesting that his silence equated with guilt and improperly shifting the burden of proof. In a disciplinary proceeding, the Bar has the burden of proving by clear and convincing evidence that the respondent is guilty of the elements of each specific rule violation alleged in the complaint. Florida Bar v. Rood, 622 So. 2d 974, 977 (Fla. 1993); Florida Bar v. Burke, 578 So. 2d 1099, 1102 (Fla. 1991). Florida courts define the term clear and convincing evidence as follows: [T]he evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony 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 a firm belief or conviction, 16

24 without hesitancy, as to the truth of the allegations sought to be established. In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). In this case, it was the Bar s burden to prove that Respondent participated in Mr. Yadon s operation to cultivate marijuana. While the Bar was able to show that Respondent s name was on the lease to the home and that the neighbors had placed Respondent at the house, the Bar relied on Mr. Yadon to show that Respondent voluntarily cooperated with the enterprise. (TFB Exh. 3; T ). However, Mr. Yadon s testimony could not be considered credible under the In re Davey definition of clear and convincing evidence. First, Mr. Yadon did not distinctly remember the facts to which he testified. Mr. Yadon referred to his deficient memory on numerous occasions. (T. 88, 90, 92, 93, 95, 97, 101, 102, 104, 109, 111, 114, 116, 127, 128, 129, 132). Second, Mr. Yadon s testimony was not precise and explicit. Rather, Mr. Yadon s answers were frequently preceded by qualifying statements such as I guess, probably, or I would assume. (T. 87, 95, 97, 98, 100, 101, 102, 104, 110, 112, 113, 115, 117, 119, 123, 124, 127, 130). Third, Mr. Yadon s self-interest in reducing his criminal exposure created a motive to provide negative testimony against Respondent. Mr. Yadon had a prior 17

25 federal conviction for the exact same offense and he acknowledged his fear that he would be facing substantial prison time for a second related conviction. (T. 110). Instead of a lengthy prison sentence, Mr. Yadon received probation, partially on the condition that he testify against Respondent. (T. 125). Fourth, Mr. Yadon had a prior history of making false representations to the court when he believed the lie would benefit him. (T ). During his plea colloquy for the 3910 South Lynwood Avenue operation, Mr. Yadon falsely confirmed the sentencing court s impression that he had not been previously convicted of a felony. (Resp. Exh. 1, p.14). Mr. Yadon acknowledged that when he agreed with the judge that he was not a convicted felon, he clearly understood and recognized that he had a prior felony federal conviction for which he had served prison time. (T ). The Bar s burden was to convince the Referee that the evidence clearly and convincingly proved Respondent s knowing participation in Mr. Yadon s marijuana grow house. The Bar was not able to corroborate Mr. Yadon s assertions. For instance, although Mr. Yadon claimed that Respondent paid the lease and the electric bills, the Bar produced no evidence from the landlord or Respondent s checking account to confirm those payments. 18

26 Since the Bar was not able to independently corroborate Mr. Yadon s testimony, the Bar argued that Mr. Yadon s testimony should be accepted because it was the only testimony the Referee had to consider. (T. 184). In closing, the Bar repeatedly commented on the Respondent s silence. For example, the Bar stated as follows: We have no testimony whatsoever from Mr. Rocker. I understand he takes the Fifth. He has the right to take the Fifth Amendment, but I would suggest to this Court that the evidence before this Court is sufficient to find by clear and convincing evidence that Mr. Rocker was indeed involved with a criminal activity and that he violated the rules as charged. (T. 188). In essence, the Bar argued that Respondent s invocation suggested guilt in order to buttress Mr. Yadon s weak testimony. In the absence of a negative inference implied by the invocation, there was not clear and convincing evidence that Respondent was implicated in Mr. Yadon s marijuana cultivation enterprise. Rather than accepting its burden to prove Respondent s participation in the grow house, the Bar argued that Respondent had not demonstrated his lack of participation in the enterprise. For instance, the Bar argued, [t]here has been no testimony whatsoever that [the electric bills] were paid by anybody other than the individual leasing the property and that the electrical bill was also paid by the individual leasing the property. (T. 186). Similarly, the Bar insisted as follows: [i]n terms of the suggestion there is no proof other than...from Mr. Yadon that he got money from Mr. Rocker, I would suggest to the 19

27 Court that there is no proof of anything other than that he did, in fact, get money from Mr. Rocker to pay for those various items. (T. 198). The Bar urged the Referee to accept Mr. Yadon s testimony, not because it was credible or because it was corroborated by other independent evidence, but instead because Respondent failed to testify and offer proof to the contrary. Consequently, the Bar encouraged the Referee to inappropriately shift the burden to Respondent as well as draw negative inferences from Respondent s silence. C. As a result of the Bar s arguments, the Referee improperly inferred guilt from Respondent s invocation and failed to hold the Bar to its burden of proof. It is the referee s function to weigh the evidence and determine its sufficiency. Florida Bar v. Weiss, 586 So. 2d 1051, 1053 (Fla. 1991). Where the record evidence fails to support the Bar s allegations of misconduct as to a specific rule violation, the referee should find in favor of the respondent and dismiss the Bar s complaint alleging such violation. See Florida Bar v. Scott, 566 So. 2d 765, 766 (Fla. 1990) (disapproving referee s finding of guilt as to rule violation because the record evidence did not support the referee s finding by clear and convincing evidence); Florida Bar v. Quick, 279 So. 2d 4, 7-9 (Fla. 1973)(same). Similarly, where the record evidence is inconclusive or contradictory as to proof of the elements of a rule violation, the referee s finding should be in favor of the 20

28 Respondent because the evidence does not establish the charges with that degree of certainty as should be present in order to justify a finding of guilt as to a disciplinary rule violation. See Florida Bar v. Rayman, 238 So. 2d 594, 598 (Fla. 1970)(disapproving referee s findings and concluding that the inconsistent and inconclusive record evidence failed to comprise that degree of proof necessary to warrant a finding of guilt for a disciplinary rule violation). The credibility assessment regarding Mr. Yadon s testimony was crucial in evaluating the sufficiency of the evidence against Respondent. However, rather than independently assessing whether or not the Bar, through Mr. Yadon s testimony, had clearly and convincingly proven that Respondent participated in the grow house, the Referee specifically considered Respondent s failure to testify. In the Report of Referee, the Referee noted, Respondent did not testify until the discipline phase of these proceedings and offered no direct testimony as to his involvement or lack of involvement in the scheme to manufacture and sell marijuana. (RR. 2). The Referee s reference to the lack of testimony from the Respondent shows that he considered Respondent s invocation in weighing the evidence. The Referee s deliberation of the evidence was prejudicially tainted by the Bar s comments on Respondent s silence during the disciplinary proceeding. 21

29 In finding that Respondent mastermind[ed] the scheme to grow marijuana as a profit making venture, the Referee relied predominantly on circumstantial evidence. (RR. 3). The Referee cited to the condition of the house, the Respondent s name on the lease and his presence at the house, during an unspecified date or time frame, as circumstantial evidence suggesting the Respondent s participation. However, this Court has held that [i]n order to be legally sufficient evidence of guilt, circumstantial evidence must be inconsistent with any reasonable hypothesis of innocence. Florida Bar v. Marable, 645 So. 2d 438, 443 (Fla. 1994). In this case, a reasonable hypothesis of innocence existed which should have precluded a guilty finding. The investigating officers testified to Respondent s statements during a proffer regarding their investigation of 3910 South Lynwood Avenue. Respondent informed them that he and his wife had leased two pieces of property and that he subleased the 3910 South Lynwood Avenue house to Mr. Yadon to assist him. (T. 151). Respondent explained that when he discovered Mr. Yadon had constructed a marijuana growing operation in the house, Mr. Yadon threatened to physically harm him and his family. (T. 79). Respondent indicated that Mr. Yadon reminded him that he knew where Respondent s parents and wife lived. (T. 79). Respondent s fear and resulting silence is a reasonable hypothesis of 22

30 innocence as to why Respondent did not report Mr. Yadon to the police. Had the reasonable hypothesis of innocence standard set forth in Marable been applied, the Bar would not have been able to sustain its burden of establishing legally sufficient evidence of guilt. Marable at 443. Instead of holding the Bar to the Marable standard, the Referee focused on Respondent s failure to offer any evidence to the contrary. Again, the Referee commented on Respondent s silence by stating, respondent s failure to testify or offer any direct evidence as to the alleged blackmail leaves the Referee with untested hearsay as a basis for his assertion. (RR. 2). In addition, the Referee noted, [t]here is no evidence that a subleasing agreement ever existed or that any amount was paid as rent under the sublease. (RR. 3). Further, the Referee stated, No receipts, bank statements, subleasing agreement or other evidence were presented to establish that [the rent and utilities] were paid in any way by Mr. Yadon. (RR. 3). Contrary to the Referee s findings, it was the Bar s burden to establish proof of Respondent s involvement with credible evidence such as banking records and testimony from the landlord to corroborate Mr. Yadon. It was also the Bar s responsibility to eliminate any reasonable hypothesis of innocence. By requiring Respondent to prove his lack of involvement and inferring from his silence that he 23

31 was guilty, the Referee improperly shifted the burden to Respondent and violated his Fifth Amendment rights. As a consequence, this Court should remand this matter to another referee for a new hearing. ISSUE TWO: A review of the untainted evidence warrants a sanction less than disbarment. In the event the Court declines to remand the proceedings to a new Referee, a review of the record without consideration of the Respondent s silence warrants a sanction less than disbarment. Although the evidence suggested that Respondent discovered that Mr. Yadon had attempted to create a marijuana grow house, Respondent s failure to inform the police was mitigated by his fear of harm to his family. The record evidence does not support the aggravating factors found by the Court. Specifically, since there is no proof of Respondent s voluntary participation in the enterprise, there is no record support for the Referee s finding that either Standard 9.22(b) or Standard 12.1(b) applies. The Court has imposed suspensions, rather than disbarment, even in cases involving the sale of a controlled substance. In Florida Bar v. Pettie, 424 So. 2d 734 (Fla. 1983), the responding attorney had organized an operation to import 15,000 pounds of cannabis. The responding attorney formed a corporation to purchase an airplane in order to smuggle the drugs. Moreover, the attorney also 24

32 purchased a residence to use as a storage facility for the smuggled drugs. Even though the responding attorney had set up and organized this operation to smuggle in copious amounts of marijuana and cover up the ill-gotten gains, the Court recommended a sanction less than disbarment. The Pettie court recognized that the attorney s agreement to assist law enforcement mitigated the sanction despite the attorney s financial contribution and planning. Similarly, in Florida Bar v. Fertig, 551 So. 2d 1213 (Fla. 1989), the Court imposed a ninety day suspension when the lawyer, over a five year period, participated with a client and law partner in a drug smuggling scheme as well as laundering money from the proceeds of the drug sales. The Court recognized the lawyer s cooperation with law enforcement and reduced the presumptive disbarment to a non-rehabilitative suspension. In this case, Respondent discovered Mr. Yadon s enterprise, which was much smaller than the operations in either Pettie or Fertig. As in Pettie and Fertig, Respondent attempted to cooperate with the police. However, when the police determined that he contested his involvement, the police refused to work with him. (T. 153). While Respondent had the obligation to report Mr. Yadon s offense to the police after it was discovered, he had told the investigating detectives that Mr. Yadon had expressly threatened his family members. (T. 79). Just as Pettie and 25

33 Fertig s agreement to cooperate with the police mitigated their conduct to a suspension, so too do the circumstances in this case justify a suspension less than disbarment. In Florida Bar v. Clark, 582 So. 2d 620 (Fla. 1991), the responding attorney received a three year suspension after pleading guilty to federal felony drug charges and receiving three years in prison. The responding attorney had agreed to assist his childhood friend retrieve three hundred pounds of marijuana that had been left in the Gulf of Mexico. The responding attorney s friend was later arrested on other unrelated charges and implicated the attorney in the marijuana smuggling offense in order to reduce his sentence. The attorney in Clark presented mitigating testimony supporting his contention that his law practice did not suffer from his participation in this offense. As in Clark, the Respondent s knowledge of the grow house did not affect his practice or involve a client. Rather, Respondent presented evidence that he maintained a good reputation for professionalism and legal abilities even though he was confronted with Mr. Yadon s activities. (ST. 6-11). After analyzing the circumstances in Pettie, Fertig and Clark, considering that the untainted record evidence does not support the Referee s finding of participation in Mr. Yadon s marijuana cultivation operation, and noting Respondent s willingness to make a 26

34 proffer to law enforcement to assist their investigation, the Referee s recommendation of disbarment should not be accepted. CONCLUSION Respondent respectfully requests this Court to remand this matter to another referee for a new hearing with instructions that no adverse inferences be drawn from Respondent s invocation of his right against self-incrimination. In the alternative, Respondent requests the Court to conduct an independent review of the record evidence, holding the Bar to its burden of establishing legally sufficient evidence proving Respondent s participation in the grow house with clear and convincing evidence. Respectfully submitted, SCOTT K. TOZIAN, ESQUIRE Fla. Bar No GWENDOLYN H. HINKLE, ESQUIRE Fla. Bar No SMITH AND TOZIAN, P.A. 109 North Brush Street, Suite 200 Tampa, Florida (813) Attorneys for Respondent 27

35 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing Respondent s Initial Brief has been furnished by FedEx overnight delivery and electronic submission via e-file@flcourts.org to the Honorable Thomas D. Hall, Clerk, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida and true and correct copies have been furnished by U. S. Mail to Troy M. Lovell, Assistant Staff Counsel, The Florida Bar, Suite C-49, 5521 W. Spruce Street, Tampa, Florida and Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida this 20 th day of April, GWENDOLYN H. HINKLE, ESQUIRE CERTIFICATION OF FONT SIZE AND STYLE The undersigned counsel does hereby certify that this brief is submitted in 14 point proportionally spaced Times New Roman font. GWENDOLYN H. HINKLE, ESQUIRE 28