Case 6:13-cr-00099-JAJ-KRS Document 245 Filed 05/30/14 Page 1 of 17 PageID 1085 UNITED STATES OF AMERICA, v. JAMES FIDEL SOTOLONGO, et al., UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION Case No. 6:13-CR-99-JAJ-KRS Defendants. / MOTION FOR NEW TRIAL Defendants James Sotolongo and Stephanie Musselwhite, through undersigned counsel, move pursuant to Fed. R. Crim. P. 33(a) for the entry of an order vacating the jury's verdict and granting a new trial in this cause on the following grounds: (1) The venire from which the jury was chosen violated the Sixth Amendment due to the severe underrepresentation of African-Americans. (2) The unsupervised enforcement of the juror dress code for the Orlando Division of the Middle District of Florida by court security officers and/or representatives of the United States Marshal's Service resulted in a significant number of otherwise qualified jurors being denied their right to serve on a petit jury in contravention of the Defendants Sixth Amendment rights and the prospective jurors rights conferred by 28 U.S. C. 1862. (3) The court unjustifiably denied the defendants request to include a theory of defense good faith instruction in the preliminary instructions given to them.
Case 6:13-cr-00099-JAJ-KRS Document 245 Filed 05/30/14 Page 2 of 17 PageID 1086 (4) The Court erroneously allowed the jury to keep and use copies of the preliminary instructions throughout the entire course of the trial, including a substantial portion of their deliberations. (5) Three of the government's witnesses were designated as records custodians of financial institutions who made the mortgage loans at issue in this case. None of these witnesses had personal firsthand knowledge of any of the loans made by their respective financial institutions. Nor were they in anyway involved in the underwriting process or ultimate lending decisions. Over defense objections, the Court impermissibly allowed each of these witnesses to express lay and/or expert opinions explaining how information submitted on the Uniform Residential Loan Applications impacted or influenced the banks' lending decision. (6) The court erroneously denied Ms. Musselwhite's proffered theory of defense instruction. (7) Mr. Sotolongo was denied due process of law when his plea agreement negotiated in good faith with the government was rejected by a district judge who had improperly assumed jurisdiction of this case and was subsequently recused due to an admitted bias. (8) The defendants were denied due process of law when the government improperly and without notice to the defendants and in violation of the local rules of this court moved and ultimately succeeded in transferring jurisdiction from the original judge assigned to this case. I. On the morning the trial began, a venire consisting of 50 prospective jurors was brought into the courtroom. There was only one African-American among the prospective jurors. This fact was immediately brought to the Court s attention by defense counsel, and the Court mentioned that it too was surprised that there was only one (1) African-American in the entire 2
Case 6:13-cr-00099-JAJ-KRS Document 245 Filed 05/30/14 Page 3 of 17 PageID 1087 venire. The defense then moved to strike the venire based upon the severe underrepresentation of that minority group. In support of the motion to strike the venire, the defense provided the Court with census data documenting that African-Americans comprised up to 15-20% of the population of the surrounding counties from which the venire was drawn. African-American constituted, however, a mere 2% of the venire. Absent a flaw in the process utilized in drawing the venire that resulted in the systematic exclusion of African-Americans, there is no explanation for such an overwhelming underrepresentation. 1 Despite the glaring underrepresentation of African-Americans on the venire and the likelihood the underrepresentation resulted from systematic exclusion, the Court denied the defense motion and proceeded with jury selection. As the Supreme Court explained in Holland v. Illinois, the fair cross-section requirement is not explicit in the text of the Sixth Amendment, but is derived from the traditional understanding of how an impartial jury is assembled. That traditional understanding includes a representative venire, so that the jury will be... drawn from a fair cross section of the community. 493 U.S. 474, 480, 110 S.Ct. 803, 807 (1990) (quoting Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 696 (1975)) (emphasis in original). The representativeness requirement serves the goal of impartiality because it prevents the government from drawing up jury lists in such manner as to produce a pool of prospective jurors disproportionately ill disposed towards one or all classes of defendants. Id. A defendant establishes a prima facie violation of the fair cross-section requirement by showing that: (1) the allegedly excluded group is a distinctive group in the community ; (2) 1 The lone African-American on the venire could not serve on the jury because she had prior educational commitments and was excused by the court. 3
Case 6:13-cr-00099-JAJ-KRS Document 245 Filed 05/30/14 Page 4 of 17 PageID 1088 the representation of this group in the venire from which the jury was selected was not fair and reasonable in relation to the number of such persons in the community ; and (3) the underrepresentation was due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668 (1979). II. The Local Rules for the Orlando Division of the United States District Court of the Middle District of Florida establishes a dress code for jurors. A copy is attached hereto as Exhibit A. The rule does not articulate how complying or not complying with a dress code either enhances or diminishes a person's qualifications to serve as a petit juror. On the first day of trial, a large number of prospective jurors arrived at the courthouse well before 8:00 a.m. and formed a line to be screened by court security. During the security screening process, a number of prospective jurors were denied entry to the courthouse because, at least in the view of the court security officers, they were not in compliance with the juror dress code. These prospective jurors were simply sent away. They were never allowed entry to the courthouse and were thus excluded from the venire from which the jury in this case was eventually selected. There is no reason to believe each of these individuals was not at least equally or more qualified than any juror who ultimately sat in judgment in this case. The possible reasons why a prospective juror did not dress in accordance with the code are numerous and could include an economic inability to comply, religious beliefs that mandate an individual dress in a certain fashion, or simply that an individual chooses to dress in accordance with the accepted fashion norms of a racial minority. Alternatively, a prospective juror may have to wear sneakers for medical reasons. An exclusion of a potential juror based on religion, economic status or race is violative of 28 U.S.C. 1862, which specifically provides, in 4
Case 6:13-cr-00099-JAJ-KRS Document 245 Filed 05/30/14 Page 5 of 17 PageID 1089 pertinent part, that "[n]o citizen shall be excluded from service as a grand or petit juror in the district courts of the United States... on account of race, color, religion, sex, national origin, or economic status. The refusal of security to allow certain prospective jurors to enter the courthouse based on the perceived noncompliance with a dress code resulted in the random, yet systematic, exclusion of individuals who were otherwise qualified to serve. At a minimum, these individuals should have been allowed to enter the courthouse, become a part of the venire, and participate in the jury selection process. Each individual who was summarily excluded should have been given an opportunity to explain their manner of dress. If their mode of dress was based on religious or moral beliefs or economic or medical reasons, the Sixth Amendment and 28 U.S.C. 1862 rendered their exclusion unlawful and deprived the defendants of their Sixth Amendment rights to a jury drawn from a fair cross-section of the community and the individuals' right to serve on a jury. The decision to exclude these prospective jurors from jury service was a decision that could lawfully only be made by the Court after a hearing fully developing the facts and during which the defense was given a full their opportunity to be heard. Under no circumstances does a court security officer unilaterally have the right to exclude prospective jurors and thus impact the composition of the venire and, ultimately, the jury selection process. III. Prior to trial, the parties and the Court engaged in an extensive exchange of emails concerning the preliminary instructions that the court announced it would read to the jury at the start of the case. At no point during the email exchange did the Court inform the defense that it was the Court's intention to allow the jurors keep the preliminary instructions in their possession 5
Case 6:13-cr-00099-JAJ-KRS Document 245 Filed 05/30/14 Page 6 of 17 PageID 1090 throughout the trial. Had the Court done so, the defense would have advised the Court that it objected to this highly irregular procedure. On the morning that trial commenced, the defense requested the Court to include within the preliminary instructions a theory of defense good faith instruction. The Court denied that request on the basis that it was, in the court's view untimely. Ultimately, each of the jurors was given and allowed to keep in their possession throughout the trial, copies of the preliminary instructions which not only failed to include the requested good faith instruction, but were also incomplete in other respects. Even after the jury was charged in accordance with the final instructions at the conclusion of the case, they maintained copies of the incomplete preliminary instructions and in fact used them during the course of their deliberations. Prior to deliberations, the jury was not told that they could not use or refer to the preliminary instructions. Where, as in this case, the jury is given preliminary instructions that are clearly deficient in that, inter alia, the preliminary charge failed to include a good faith instruction, the giving of final instructions that include the proper instruction does not cure the problem unless the jury is specifically told which set of instructions controls their deliberations. United States v. Hernandez, 176 F.3d 719 (3d Cir. 1999). Here, not only was the jury not so instructed, but each juror was allowed to have a copy of both the preliminary and final instructions to use during the deliberations. IV. Prior to trial, the government provided the defense with a witness list that identified three individuals who were to testify in their capacity as records custodians of the lenders that made the mortgage loans at issue in this case. As the trial unfolded, the testimony of each of these 6
Case 6:13-cr-00099-JAJ-KRS Document 245 Filed 05/30/14 Page 7 of 17 PageID 1091 individuals went far beyond the testimony expected of a records custodian. Each of these witnesses, on the theory that their work experience qualified them to do so, was allowed to express opinions, often in response to a hypothetical question posed by the government, to the effect that purportedly false representations contained in the URLA submitted to the lender ultimately impacted the lending decision, essentially vouching for the government s theory of prosecution. Effectively, each of these witnesses, none of whom had firsthand knowledge of or involvement in the loans at issue, testified as an expert disguised as a lay witness records custodian and impermissibly expressed opinions on a number of critical issues. See, e.g., United States v. Hill, 643 F.3d 807, 842 (11th Cir. 2011), suggesting that such testimony would be improper where the witness was not a participant in the underlying transaction. V. The Court abused its discretion in denying Ms. Musselwhite's theory of defense instruction where there was evidence in the record to support the instruction, the instruction was a correct statement of the law and not otherwise covered in the instructions delivered by the Court, and was in accordance with the presentation of her defense. A copy of the proffered instruction is attached hereto as Exhibit "B". An accused in a criminal case has the right to have the jury instructed on her theory of defense separate and apart from instructions given on the elements of the charged offense. United States v. Opdahl, 930 F.2d 1530 (11th Cir. 1991); United States v. Lively, 803 F2d 1124 (11th Cir. 1986). The trial court may not refuse to charge the jury on a specific defense theory where the proposed instruction presents a valid defense and where there has been some evidence produced at trial relevant to that defense. United States v. Middleton, 690 F.2d 820 (11th Cir. 1982). The trial court is not free to determine the existence of such a defense as a matter of law. 7
Case 6:13-cr-00099-JAJ-KRS Document 245 Filed 05/30/14 Page 8 of 17 PageID 1092 Id. The threshold burden is extremely low: "[T]he defendant... is entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence." Perez v. United States, 297 F.2d 12, 15-16 (5th Cir. 1961). In deciding whether a defendant has met his burden, the Court is obliged to view the evidence in the light most favorable to the accused. United States v. Williams, 728 F.2d 1402, 1404 (11th Cir. 1984). This Circuit has held that good faith is a complete defense to a charge of intent to defraud under mail fraud and similar statutes and if there is any evidence in the record upon which to base a good faith defense, failure to give a good faith instruction is reversible error. United States v. Goss, 650 F.2d 1336, 1345 (5th Cir. 1981) (charging the jury that a finding of specific intent to defraud is required for conviction, while it may generally constitute the negative instruction, i.e., that if the defendants acted in good faith, they could not have had the specific intent to defraud required for conviction, does not direct the jury's attention to the defense of good faith with sufficient specificity to avoid reversible error). VI. Mr. Sotolongo s convictions on all counts, other than Count One, must be vacated due to the fact that his plea agreement, which was negotiated in good faith with and accepted by the government, was improperly rejected by a successor district judge who had erroneously assumed jurisdiction over this case admittedly in contravention of the Local Rules and defendant's due process rights and eventually recused due to bias or interest in the case. After extended negotiations between Mr. Sotolongo and the government, the parties reached an agreement pursuant to which Mr. Sotolongo would enter a plea of guilty to Count One of the indictment, which charged him with conspiracy in violation of 18 U.S.C. 371. At the time the agreement was reached, this case was still being presided over by the original judge 8
Case 6:13-cr-00099-JAJ-KRS Document 245 Filed 05/30/14 Page 9 of 17 PageID 1093 to whom the case was assigned. Thereafter, in contravention Local Rules and Mr. Sotolongo's due process rights, the case was transferred to a successor judge. On February 4, 2014, Mr. Sotolongo appeared before that judge for the purposes of entering a plea of guilty to count one of the indictment in accordance with the provisions of his agreement with the government. The judge refused to accept the agreed-to plea. On March 13, 2014, this judge was recused on the basis of bias and a financial interest in the case that existed from the very moment that he took jurisdiction of this case. Despite the recusal and assignment of the case to another judge, the government refused to go forward with its agreement with Mr. Sotolongo. At that point, he was effectively forced to proceed to trial. A fair trial or hearing before a fair tribunal is a basic requirement of due process. Fairness requires an absence of actual bias in the handling of cases. However, our system of law has always endeavored to prevent situations where the accused is subjected to even the probability of unfairness. In Re Murchison, 349 U.S 133, 136, 75 S.Ct. 623, 625 (1955). Thus, due process demands that no judge is permitted to try or hear cases in which he of she has any interest in the outcome. Id.. Any interest that would offer a possible temptation to the average man as a judge not to hold the balance nice and true between the State and the accused denies the accused of due process of law. Tumey v. State of Ohio, 273 U.S. 510, 532, 47 S.Ct.437, 444 (1927). Mr. Sotolongo's plea colloquy was conducted by a tribunal that was anything but fair. The result was that, because of interest and bias, the judge improperly refused to accept his plea of guilty to Count One of the indictment. Denied the opportunity to plead guilty in accordance with his agreement with the government, Mr. Sotolongo was forced to go to trial and the jury found him guilty of not only Count I, but also all but one of the offenses with which he had been 9
Case 6:13-cr-00099-JAJ-KRS Document 245 Filed 05/30/14 Page 10 of 17 PageID 1094 charged. Unlike Count I, which carries a statutory maximum penalty of five years, each of the additional counts of conviction carries a 30-year statutory maximum penalty. VII. The defendants were denied due process of law when the government improperly and without notice to the defendants and in violation of the local rules of this Court moved and ultimately succeeded in transferring jurisdiction from the original judge assigned to this case, thereby exposing the defendants to resolution of dispositive motions by a judge who recused prior to trial. The defendants renew their pretrial motions and urge the Court to grant them an evidentiary hearing on those matters. The evidence at trial is consistent with the pretrial claims of the defendants, including that the search executed pursuant to warrant far exceeded any scope of proper authorization. Similarly, the undue time restriction on defense motions an order imposed by the recused judge and never reconsidered, that limited the defendants to a very brief window for motions, even as discovery was ongoing was unfairly restrictive. The defense could have, with the benefit of motion practice, obtained greater disclosure from the government and learned of the government s plan to utilize bank representatives as experts rather than records custodians. The defense would then have been in a position to move for a Daubert hearing and to prepare to present defense counter-experts, a task rendered nearly impossible after trial had begun and after the surprise use of the opinion evidence was made. Similarly, additional time for pretrial motions would have allowed the defense to more strongly support a severance from the trial of co-defendant Ramara Garrett, whose defense at trial was essentially antagonistic to that of defendant Musselwhite. Particularly given the conflict of interest acknowledged by the magistrate judge and the absence of a de novo hearing on the motion to disqualify, the defendants were unfairly prejudiced by denying the motion to 10
Case 6:13-cr-00099-JAJ-KRS Document 245 Filed 05/30/14 Page 11 of 17 PageID 1095 extend the motion deadline. In effect, defendant Sotolongo was deprived entirely of the right to file pretrial motions. The overall procedural posture created by a motion practice schedule adopted by the recused judge, whose order of recusal maintained control of the case, warrants the granting of a new trial and a return to the status quo prior to the recused judge s assumption of authority over the case as a result of the motion filed by the government that violated the defendant s due process rights. WHEREFORE, for all of these reasons and those expressed in motions presented to the Court prior to and at trial in this case, the defendants request that the Court grant them a new trial and an evidentiary hearing to further establish their claims. Respectfully submitted, BRUCE A. ZIMET, P.A. LAW OFFICES OF One Financial Plaza, Suite 2612 JOHN E. BERGENDAHL Fort Lauderdale, Florida 33394 25 S.E. 2nd Avenue, Suite 1100 Telephone No.: (954)764-7081 Miami, Florida 33131 Facsimile No.: (954) 760-4421 Telephone No.: (305) 536-2168 Email: bazimetlaw@aol.com Facsimile No.: (305) 536-2170 Email: lojeb1100@gmail.com By: /s/ Bruce A. Zimet By: /s/ John E. Bergendahl Bruce A. Zimet John E. Bergendahl Florida Bar No. 225053 Florida Bar No. 327761 11
Case 6:13-cr-00099-JAJ-KRS Document 245 Filed 05/30/14 Page 12 of 17 PageID 1096 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically by CM/ECF system with the Clerk of Court and electronic copy furnished to all counsel of record, this 30th day of May, 2014. /s/ John E. Bergendahl John E. Bergendahl 12
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