UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA...

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

Case No. 6:13-CR-99-JAJ-KRS

UNITED STATES OF AMERICA,

v.

JAMES FIDEL SOTOLONGO, et al.,

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 of 17 PageID 1085

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(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


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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.


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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 under-

representation 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




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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


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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


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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.


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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


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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


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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


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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: [email protected] Facsimile No.: (305) 536-2170

Email: [email protected]

By: /s/ Bruce A. Zimet By: /s/ John E. Bergendahl

Bruce A. Zimet John E. Bergendahl

Florida Bar No. 225053 Florida Bar No. 327761


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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


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