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Fifth District Court Of Appeals Docketing Statement 2011 2019 Form Demand Assistance

okay uh my clock on the computer says.uh 10 o'clock so uh we'll get started uh.good morning uh my name is uh judge.layner brian lammer.presiding here today welcome to our.new wave session of oral arguments here.in the fifth district court of appeal.the case that we have now at ten o'clock.is rose.har versus state of florida case number.5d.18 3946.each side i will have 20 minutes for.oral argument appellant.i will reserve five minutes for rebuttal.time if you.want some different amount of time let.me know you'll see the clock counting.down i'll try to give you a heads up.once you get into rebuttal time.obviously you can keep going if you'd.like that's fine.if we have any technical difficulties uh.or you can't hear us or we can't hear.you we'll let you know we'll stop the.clock and.try to figure out what's going on uh.that being said uh see how the attorneys.are here and the judges are here so.mr sullivan if you're ready to proceed.go ahead sir i am good morning your.honors and mayor please the court.uh my name is ronald sullivan and i.represent the appellant.rolls horror uh this is a case arising.out of a criminal.conviction uh in which miss horror was.convicted on.two counts uh relating to uh.a conspiracy to commit bribery and.conspiracy to commit.bid tampering uh we have put.forth seven independent grounds uh for.the court to consider.uh which we maintain requires reversal.uh the seven are independent they are.not reliant on.each other uh anyone uh in our argument.is sufficient for reversal.the first argument your honor is one.that has been.uh where there is significant doctrinal.support.uh it is that the court below uh.read a standard principle instruction.for a conspiracy count a standard.principal instruction for a conspiracy.count now.um it's clear in this jurisdiction.that uh that's improper that's that's.error.um and this goes let me uh.interrupt you for a second it it the.instructions that were read.were read in uh order of.those in order of the information which.charged.various crimes correct.and the instructions on each of those.individual.offenses were correctly.read and the elements were correctly.set forth to the jury correct.it's hard to answer that yes or no.because of the the the mismatch between.the.the label the heading and the substance.the substance yeah that the jury was.given.uh the elements of the offenses were.correctly uh.presented to the jury were they not um.correct instructions were given to the.jury.the question is uh for which count.though.um so i'm not trying to evade your.honors question.so uh yes though those subs.the substantive areas were read to the.jury.it is unclear to my thinking whether the.jury was able to connect up.the heading with the substance well.it seems that the oil was the order of.the uh.instructions that that you're quarreling.with uh.the juxtaposition between you know.the the two counts that she was.convicted of that really seems to be.your.your uh problem more than.the substance of the instruction.themselves.well it um there is a substantive issue.as well but yes your honor correct.well i don't understand then yeah the.the.the issue i mean did you ask for a a.different.order of uh the reading of the jury.instructions.well the there was a general objection.below.as as the record showed there was not a.specific.request for uh a different order uh but.the fact that there was.uh this mistake this heir with respect.to.how uh these instructions were read to.the jury.uh prejudiced uh miss nasar because of.the different.men's rea requirements for conspiracy.versus uh the substantive underlying.account.and and and that's pretty much our.substantive argument.uh your honor that the breadth.of potential liability under.a aiding and a betting standard uh.is significantly broader uh than it.would be.uh had to have the proper instruction.been read and it's um.in all likelihood that this hormone is.under an incorrect standard it it.appears to me that the instructions.were properly read as to each count it's.just.you know you're you're problem with it.the heartburn you've got is the order.uh the fact that uh you know one.instruction.came before the second instruction as it.was set out in the information.and it's significant heartburn your.honor because that's what the jury.heard and the jury uh will have.connected.uh in improper uh jury instruction.with with the charge and and and that.can't happen that can happen there is a.likelihood that uh miss horror was.convicted.uh under the wrong standard.then the your first issue is the jury.instruction on count fives and properly.worded.the the bid tampering uh principle to.commit bid tampering didn't didn't it.track the language of.of the statute 838.22 1a and sub.three i mean the um well.your honor the as as.judge cohen stated the way in which it.was read uh to the jury.paired the principle or the standard.charge.uh that of a principle with the.conspiracy charge.and that's where the confusion uh rests.and it is a significant confusion and.it's a confusion.that reaches constitutional proportions.uh because.it it touches and concerns uh due.process so.so our argument is not simply a formal.argument.that is the order in which it was read.it touches and concerns.substance because the order in which it.was read.permits a jury to convict uh on the.wrong charge.so so uh i'll just say a couple more.words about uh the.the first one um and it goes back to.first.principles of your honor the reason that.uh.conspiracy charges has such an.astringent mens raya is because.otherwise the neck would be.it would be too great too broad too.capacious.uh so the men's rare required for.conspiracy uh is a self-effectuating.limiter uh that limits the scope of.of liability and um and and and what we.have.here is a potential conviction.uh based on a uh a a.charge where the the or.an instruction where only assistance a.different sort of mandrea.was was present and and that's our.that's our argument here.and we think that they're significant um.there was a significant opportunity for.the jury to uh have.have misread that uh one one brief point.here just to address.an argument raised in the in the states.brief on this point.uh the state uh maintains that.this argument is not available to ms har.because uh it wasn't properly preserved.uh below and uh we somehow.created the issue that we now.complain of uh i'll just state that the.uh the government here misreads the.court.in law where uh.where uh law said that.that uh because of a different.procedural.posture uh of the the case.it declined to overturn a conviction um.here's the key distinction here uh for.this sort of equitable unclean hands.um our argument that would prevent.ms har from from from stating the claim.there has to be an affirmative.act an affirmative act uh below.uh by the lawyer that causes the thing.that we now complain of.uh it can't be just the absence or.simply.uh the the absence of preserving uh the.record.that would completely completely.eviscerate an entire.additional body of law so um.in that case the lawyer below.specifically requested that language be.removed from the instructions.and when that language was removed that.causes the very.problem that they complained of and that.was the nature of the case and.law so so we think that evans is still.the uh the proper uh case here.and that this is uh counsel just turning.back to the facts we have.how do you get the fundamental error.here that.we should find the sequencing the.unobjected to sequencing of the jury.instruction.was so terrible that it denied your.client a fair.trial i mean the there was evidence from.which a jury could conclude that she had.engaged in a conspiracy couldn't it.touches and concerns.uh the due process question that your.honor raises uh.and that the the error was fundamental.in the.sense that to the degree that it's more.than pure.sequencing to the degree that a jury.potentially convicted.on the wrong charge that goes to the.very nature to the very.heart of a criminal trial due process.requires notice.and requires that people be convicted of.the thing for which they are.charged uh to the degree there's even an.ambiguity there that ambiguity should be.resolved.in favor of miss har so uh we do believe.that it has reached this.the the the due process level of a.fundamental.error i'm trying to understand.what in the record makes us uh believe.that the jury.misinterpreted the jury instructions.well the again.i'm sorry the sound broke up judge cohen.is the is it the fact of the conviction.that makes you.believe that well not just the fact of.the conviction it itself your honor.although that uh certainly uh aids to.the the conclusion uh but it is the fact.of the um mislabeled uh.uh missed sequence charge that allows.for.uh that inference and we think that's.that's more than uh.sufficient again at the very heart of.due process requires.notice and that people are convicted of.the things for which they uh.are charged now the law doesn't permit.us to go back and.uh you know question the jury and and.expose and figure out what in the world.they were talking about.in the jury room but we do uh your honor.have um this evidence in front of us as.to what was read to the jury.and again to the degree it's even.ambiguous.um that's sufficient because that.ambiguity should be resolved in favor of.miss heart.one of the other things you argue is you.don't like the jury instruction about.competitive bidding process says the.court aired in defining that.are are you saying that the instruction.itself was erroneous.or that it was unnecessary or or what is.what is the specifics of your argument.that the ins it's pardon me on that the.instruction.was both unnecessary.and prejudicial so it's two points uh.the plain uh language of the charge.itself.was sufficient the graviment of our.argument is that the court below.injected a character trait into the.definition that the legislature.didn't put there so for a strict reading.of the legislative intent it didn't.require for.it didn't require companies that are.quote.responsible companies only be allowed to.apply.it allows anyone to apply and if they.meet certain uh.requisites then they can win the bid.it's the injection.of this normative phrase of of.responsible.uh that we object to and we can see from.the prosecutor's argument at the end.uh that the prosecutor relied indeed.on this notion of a a responsible.uh actor and it's that injection.that caused air because given the uh.rest of the trial which was about uh bit.tampering and bribery.a reasonable juror could conclude that.well these guys aren't.great uh uh actors so you know they're.not responsible and they somehow.i don't meet the statutory definition uh.that cannot be the case because the.legislature.did did not write that so that's the.nature of our argument uh.didn't the trial court craft that.instruction.based on case law that the the court was.reading at the time and.i mean they didn't didn't just pull out.air they look we're looking at case law.and.use that instruction and it was.basically generated as a result.of the instruction given at your defense.council's request about.mr needleman being a constitutional.officer was not required to participate.in.competitive bidding so i mean it seemed.to flow as a result of.the instruction that defense was able to.obtain so.i mean we have no quarrel with the.constitutional officer aspect of the.instruction but.uh i am unaware of this.that's right uh so i certainly wouldn't.uh be here objecting to it.uh but we did not uh certainly ask for.the injection.of the normative phrase responsible.person.and we are unaware of any case in.florida.that provides that instruction and we do.think it's problematic and prejudicial.you also you're laughing one of your.last issues or maybe the last issue is.you you were you think that the court.aired in not responding.more affirmatively to the jury question.about whether a lobbyist could receive.commissions.doesn't a trial court under 3.4108 have.the discretion.whether to give a instruction at all.absolutely and we think that that.discretion.was was not exercised properly.uh it is a classic uh question.of law there was an apparent confusion.there and the court uh should have.cleared that up uh so uh i hear the.court does have.broad uh uh discretion uh but the court.can abuse its discretion when there.is uh evidence that a jury is clearly uh.confused about something and that the.jury.might uh base its conviction uh on a.misapprehension of law which we think is.the case.uh here.you're you're within your uh rebuttal.time uh.absolutely i will reserve okay good.enough thank you council.thank you all right miss coleman hey.please.court my name is pam kohler i represent.the state of florida in this appeal.i'll go follow his um argument as far as.the.first issue um number one this precise.argument that was argued in the the.brief was never raised below.they didn't object to the sequency.um they did they mostly were complaining.about that they wanted the corrupt.intent in the principal instruction.um and the and they complained about the.captions.but there was no com complaint about the.sequency in this case.um and i would submit that number one um.there was no jury question indicating.that the jury was confused about the the.the instructions number two they were.given a copy of the instructions.with that order um established as far as.setting out what the.the three different counts were and um.the fact that they were able to find the.defendant not guilty.of a principle to commit bribery but.guilty of conspiracy to commit bribery.i would suggest in the case that they.were quite they were well aware of.what their burden was and what it was.that they were looking at how to.interpret those instructions.and the crimes charged and finally as.this court noted.the statute i mean they sent out the.correct law in all these instructions.and uh the statute itself in 838 talks.about.um you know they said all both of those.subsections that the state was proving.as far as the competitive bidding.process.there's a correct statement of law what.happened was the state wanted that.instruction and the judge.kept removing portions of the.instruction that were filing that case.law.that the defense didn't like and then.finally she agreed not to give it at all.but then once they asked for the.instruction on a constitutional officer.she said.okay i'll put it back in the state or.somebody asked the.defense if they were okay with it once.they removed the financially.capable of that sort of labors that they.found so defensive and they said no.and their only response was because it.wasn't given during the needleman trial.so that was what they're most upset.about.um at the trial level and um.number one is the correct statement of.the law and she was arguing she was a.responsible bidder that she was.she had all this you know vision she's a.visionary trying to open up her business.down here in florida.so it's not as if um and the fact that.she had done the medical scanning.so it's not like she could not she.wasn't arguing that she was a.responsible bidder in this case.so there should have been no problem.with that.and finally the jury question um i.didn't really.stress it enough in my brief but there.really was no.evidence that the money that went to.dupreeh.the extra money was any sort of.commission.if you notice in the opening statement.defense counsel.argued it was a sales commission and.what happened was during the trial.that argument was shot down when the.lead account said we didn't give sales.commissions in 2012..so then he has to backstep a little bit.and suggest.well then it was a lobbyist commission.and there was no evidence ever presented.of a commission given to matt dupree as.a lobbyist or as a sales commission.there was never any evidence so number.one there was no evidence to support.this jury instruction.um number two.um she was never charged with unlawfully.paying a commission.so um that it wasn't relative.relevant as far as that and also number.three it.this theory of defense assuming it's.some sort of theory defense.wouldn't have acquitted her had the.instruction be given.okay so you call it or you name it um.a commission rather than a kickback i.mean.the what happened was they sent more.money.than the contract really required to do.what they were going to do.30 000 or whatever it was that went into.matt duprey's account and then he would.kick back.some of that money to uh needleman's uh.campaign books which was never report.reported by.um needleman's campaign so i don't care.what you call it whether or not it was a.commission.or sales commission or whatever it was.it was a kickback.and it basically is a securities way of.getting the money from.um blueware and needleman.back to uh needleman's campaign so that.he could.which the state was able to show he used.that money.for example to uh send out flyers for.his campaign.this caller do you know what the status.uh.of the needleman case is currently i.don't know currently i know that you.we tried to appeal that and we were.denied that appeal.so i assume he's going to be retried and.of course with the coronavirus.that's i don't know okay.i i wouldn't i should have looked that.up.um if this court has no further.questions the state would rely on his.brief and ask that you.um can affirm the commissions for.sentences thank you all right.council thank you all right mr sullivan.you have looks like 423 on rebuttal.thank you judge lambert uh i'll pick up.where the state.left off uh with respect to this.question of the the jury question.whether it's uh the state argues that.whether it's a sale commission or.kickback it's a kickback i'll just point.out to the panel that that's classically.circular.uh there no there are formal.substantive and structural differences.between commissions.and between kickbacks and if a jury.thinks that.a commission is per se illegal or.as the state now argues here on appeal.that.they are one and the same uh that would.manifestly be an incorrect statement.weren't there two witnesses who.testified weren't there two witnesses.who testified that blue ware did not pay.commissions back then uh they're.uh there were uh.at least one uh and there may have been.two not not disputing your honor.there there was at least uh one but if a.but if a jury found that in that.particular.instance not their general practice in.that particular instance.uh it was a commission.as opposed to a kickback then that would.be fine.um nobody who testified who testified.that it was a commission.there was not in the in the record.affirmative testimony.that there was a commission so so we.have two to nothing.i i don't i don't understand the.confusion well it's not.it's it's not as though it's a it's a.score card if if the.if the jury um found.uh inferred from the evidence that a.commission.uh was was paid um that would be.a fair inference uh they were in unity.evidence did this jury have to support.even the inference that it was a.commission.that they were in a unique space that.they had to.uh that that they were um.uh attempting to uh secure.uh contracts uh in a space and in a way.now that the company had had not done it.before and this may be one instantiation.of that.uh of that general claim.so none this is the answer to that.question.i wouldn't i wouldn't say that your.honor i would say that there is.there is something upon which a.reasonable juror could base.uh a an.and that's manifested by the question.itself the question didn't come from.whole claw.so um i i'd like if i may in my.remaining time just to uh make uh.one uh factual argument and one.conceptual argument and this is our the.second.point in our our brief uh this notion.that.miss har or conspired with someone.to uh solicit uh.someone to solicit a bribe from from her.it's just.it's this very odd uh uh argument.that uh har conspired with needleman to.uh solicit and accept a bribe for itself.picking up.uh judge cohen on your last question.about where.is there evidence in the record there's.no evidence uh.in the record that uh miss har.conspired to have someone solicit a.bribe for her.from her there may be evidence that she.um.uh solicited uh uh to with.conspiring with someone to accept a.bribe but not conspire with someone to.solicit.uh a bribe uh the only evidence of the.record.was that uh someone came to her and said.hey.if you want to do business in here uh.this is how how you do it.that was a solicit that was a.solicitation nothing in the record.and the last issue is a conceptual.issue that's our three um.this is the uh material information that.um the material information argument so.um on the government's theory if someone.possesses.any information whatsoever prior to the.bid.process then they are somehow subject to.the.uh criminal penalties uh under this.section and that.is far too uh broader read of the.statute.uh i see my time has expired uh your.honor thank you for you want to finish.what you're just saying if you want to.just go ahead and finish that's fine.okay thank you very.thank you very much your honor so the so.the so so the point.the point here is that uh imagine.arguing though that.there was uh someone who two years ago a.company that did.work uh on a school and had intimate.knowledge of the pipe system and the h.dac system and and and so forth.uh two years hints there's a bid uh.there and they bring that knowledge to.bear uh.based on their prior work on the.government's theory.uh that company would be uh liable.uh potentially for a criminal charge.and conceptually um there's not much.space between.that and the evidence of what happened.here where miss horror's company uh was.engaged ex-ante uh in work.in the space that was subject to the.crime.and that work ex ante can't then serve.as a basis for.liability uh once a um.once a a bid is put out the clock.has to start uh i respectfully submit.once the bid is put out all right.i just wanted to say before uh you know.judge lambert.uh you know wraps up the session that i.thought this case was uh.very well briefed by uh both parties and.i just wanted to compliment.both of you on the briefing thank you.thank you your honor all right council.uh we certainly appreciate your argument.and your patience with our technology.here so.we're uh we'll sign off and adjourn for.the day.have a good day thank you.

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