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Fourth Motion To Compel Case f08-36522
Fourth Motion To Compel Case f08-36522
Plaintiff, JUDGE:
BARZEE FLORES
vs.
Defendant.
/
by and through her undersigned attorneys, and hereby files this Fourth Motion to Compel
Discovery and Motion to Compel Answers to Deposition Questions and in support thereof states:
BACKGROUND
1. The State of Florida (“State”) filed a felony information charging Ms. Estefano with the
following felony counts: one (1) count of Organized Scheme to Defraud in violation of
Florida Statute § 817.034(a); one (1) count of Grand Theft First Degree in violation of
Florida Statute § 812.014 (1) and (2)a; and (1) count of Fraudulent Use of Identification
each of the counts as a principal in the first degree in violation of Florida Statute § 777.011.
(“Martinez”) are also jointly charged in each of the counts both directly and as principals in
3. Upon information and discovery thus far provided, the State’s case centers around Co-
Defendant Romney’s purchase of real property located at 3390 Oak Avenue, Coconut Grove,
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Florida (hereinafter “the property”) on or about February 13, 2008 and Romney’s eventual
sale of that property to a Bernardo Humberto Barreira on February 19, 2008. Ms. Estefano
4. Citi Mortgage, Inc. (the alleged victim in Counts one (1) and two (2)), financed Bernardo
Bernardo Humberto Barreira’s identification and deceived Citi Mortgage, Inc. into believing
that it was financing the real Bernardo Humberto Barreira’s purchase of the property from
Romney.
6. The State apparently believes that Ms. Estefano, as the closing agent for both real estate
transactions, made one or more various false statements in order to defraud Citi Mortgage,
PROCEDURAL HISTORY
8. On October 28, 2008 the Defense filed a motion requesting all material favorable to the
Defense on the issue of guilty and punishment pursuant to Brady v. Maryland, 373 U.S. 150
(1972) and United States v. Agurs, 427 U.S. 97 (1976). On December 11, 2008, the Court
9. On May 18, 2009, the Defense argued before this Court its first Motion to Compel
10. The Court ruled that if either Co-Defendant provided a statement which contained
“Brady” information, the State must promptly provide that statement to the Defense or
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provide the statement to the Court for an in-camera review to determine whether the
11. The Court further ordered the State to instruct all law enforcement personnel to preserve
all notes, and to produce any and all notes of Detective Jorge Baluja relating to this case.
12. On June 25, 2009, the State listed Co-defendant Martinez as a state witness. The State
also provided a copy of his plea agreement whereby he agreed to fully cooperate with the
State and testify for the State in exchange for a below guideline sentence.
13. Upon information and belief, the Defense believes that there are two statements (and
14. Despite repeated requests and multiple court orders, the State has failed to provide Mr.
Martinez’s statement. Upon information and belief, the Defense believes the State has had
possession of Mr. Martinez’s statement for at least the last three months.
15. Furthermore, the State has interviewed Co-Defendant Romney on at least two occasions
(and possibly more) in anticipation of a plea agreement with him. Upon information and
belief, the Defense believes the State has had possession of Mr. Romney’s statements for at
16. On September 16, 2009, the Court entered an order requiring the State to provide the
17. In anticipation of receiving those statements, the Defense scheduled the depositions of
Detectives Baluja for October 7, 2009, Detective Valdes and Calvo for October 14, 2009 and
1 The Defense and the State later agreed that the statements of Co-Defendant
Romney and Martinez would be turned over to the Defense at the Deposition of
Detective Baluja scheduled for October 7, 2009.
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18. During the Deposition of Detective Baluja on October 7, 2009, the State advised that it
would provide the subject statements the next day, but that they would be redacted since the
investigation was still “ongoing”. Furthermore, the State conceded that both Co-Defendant
Romney and Martinez did not directly implicate Ms. Estefano has having knowledge about
19. As of the date of this motion, the statements have still not been provided.
20. Furthermore, during the Deposition of Detective Baluja (a lead detective in the case), he
b. When asked about the statements Co-Defendant / State Witness Martinez and Co-
“ongoing investigation”. The questions posed were basic and relevant questions
such as:
i. Who did Mr. Martinez give the earnest money check to?
21. In light of Detective Baluja’s refusal to answer the above questions similar type
questions, the deposition was terminated so that this motion could be filed.
that it would seek a court order compelling answers to these questions and that it would seek
to hold the State responsible for covering the costs of any re-deposition should the Court find
23. Finally, the State advised that each of the Detectives scheduled for the month of October
would also refuse to answer similar questions based on their “ongoing investigation”.
24. As a result, the Defense has had to cancel the depositions of Calvo and Hodges and the
ARGUMENT
25. The discovery rules are absolutely clear. Pursuant to Rule 3.220(b)(1)(B), the State is
witness.
26. Moreover, pursuant to Rule 3.220(b)(1)(D), the State is obligated to turnover “any written or
recorded statements and the substance of any oral statements made by a codefendant if the
27. According to Brady v. Maryland, 373 U.S. 150 (1972) and United States v. Agurs, 427
U.S. 97 (1976), the State is required to immediately turnover any and all material favorable
to the Defense on the issue of guilt and punishment. The fact that the two Co-Defendants
have not implicated Ms. Estefano as having any knowledge of the underlying fraud clearly
28. Finally, in addition to the State’s obligations under the rules, there are three outstanding
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29. The State’s lackluster effort in complying with its discovery obligations is delaying the
discovery process and the defense investigation. Therefore, the Defense requests that this
IMMEDIATELY.
30. The State’s assertion of a “work product privilege” objection has absolutely no basis.
31. Rule 3.220 (g)(1) defines “work product” in that the rule states “[D]isclosure shall not be
that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney
32. Conversations Detective Baluja had with Assistant State Attorney Bill Kostrzewski are
not work product as defined and discussed in the rule. Thus, the objection has no basis, and
33. Detective Baluja’s refusal to answer certain questions about what the Co-Defendants have
stated as to their involvement in the case on the basis of “ongoing investigation” is utterly
absurd.
34. The State filed the information on October 3, 2008. Thus, the State made the decision to
initiate criminal proceedings against Ms. Estefano. The State must therefore stand by its
35. Ms. Estefano has a right to a speedy trial and a right to fully and fairly investigate the case
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36. The State is violating these rights with impunity, and it must be stopped. If the Court
allows the State’s witnesses to refuse to answer basic and relevant questions, this Case will
WHEREFORE, the Defense requests this Honorable Court to order the following:
a. Immediately produce any and all statements of Martinez and Romney without
redaction;
b. Immediately produce any and all notes of interviews of Martinez and Romney
without redaction;
c. Overrule the State’s objection of a “work product privilege” and order all of the
State witnesses to answer questions concerning conversations they have had with
all questions regarding their interviews of the co-defendants and witnesses in the
case.
e. Tax against the State and/or Miami-Dade County Police Department the costs
incurred in the taking of Detective Baluja’s deposition and the necessary re-taking
of his deposition.
Respectfully submitted: