Petition for Writ of Certiorari — Roberto Gil, Petitioner v. Florida

PRO VIDEDTO

SOUTHBAYCORREONALFAL1

4

NO.

IN THE SUPREME COURT OF THE UNITED STATES

ROBERTO GIL,

Petitioner,

VS.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FLORIDA DISTRICT COURT OF APPEAL, THIRD DISTRICT

PETITION FOR WRIT OF CERTIORARI

Roberto Gil DC#1314583

SOUTH BAY CORRECTIONAL FACILITY

600 U.S. HWY 27 SOUTH

SOUTH BAY, FLORIDA 33493

QUESTIONS PRESENTED

QUESTION ONE

Whether a confidential informant's contingent fee arrangement

with police earning twenty percent only in the event of arrest,

-

violates Mr. Gil's

forfeiture, and favorable testimony

Fourteenth Amendment Due Process rights?

-

11

LIST OF PARTIES

[X] All parties appear in the caption of the case on the cover

page

the case on the cover page. A list of all

is the subject of this

parties to the proceeding in the court whose judgment

petition is as follows:

] All parties do not appear in the caption of

111

1-

TABLE OF CONTENTS

OPINIONSBELOW....................................................................................1

JURISDICTION..........................................................................................2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...................3

STATEMENT OF THE CASE........................................................................4

SUMMARY OF THE ARGUMENT.................................................................9

REASONS FOR GRANTING THE WRIT........................................................10

Question One: Whether a confidential informant's

earning

contingent fee arrangement with police

twenty percent only in the event of arrest,

violates Mr.

forfeiture, and favorable testimony

Gil's Fourteenth Amendment Due Process rights?

-

-

CONCLUSION........................................................................................... 14

PROOF OF SERVICE.................................................................................15

INDEX TO APPENDICES

Appendix A...........................Opinion of the Florida Supreme Court

Appendix B

Decision of the State Court of Appeals

Appendix C.....................Opinion of Trial Court denying Motion to Dismiss pg. 958

Appendix D.....................Opinion of Trial Court denying renewed Motions pg. 1052

Appendix E...........................Order of State Court of Appeals Denying Rehearing

lv

TABLE OF AUTHORITIES CITED

CASES

..................13

Cruz v. State, 465 So. 2d 516, 520 (Fla. 1985)...........................................

.........13

Muñoz V. State, 629 So. 2d 90, 91 (Fla. 1993) ....................................................

10

Sherman v United States, 356 US 369, 2 L Ed 2d 848, 78 S Ct 819 (1958)...............

........10

Sorrells v United States, 287 US 435, 77 L Ed 413, 53 S Ct 210 (1932) ............

.....10

State v. Anders, 596 So. 2d 463, 467 (Fla. 4th DCA 1992) ....................................

11, 12

State v. Glosson, 462 So. 2d 1082 (Fla. 1985)........................................................

........13, 14

State v. Hunter, 586 So. 2d 319, 322 (Fla. 1991)...........................................

...11

Taylor v. State, 612 So. 2d 626, 629 (Fla. 1st DCA 1993)........................................

0

United States v. Russell, 411 US 423, 36 L Ed 2d 366, 93 S Ct 1637 (1973).............1

FLORIDA RULES OF APPELLATE PROCEDURE

28 U.S.C. §1257(a)..........................................................................................................2

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. XIV.................................................................................................3

V

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to

review the

judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

at

The opinion of the United States Court of Appeals appears

to the petition and is

Appendix

-

or

[ ] reported at

[ ] has been designated for publication but is

not yet reported; or

[ ] is unpublished.

[X] For cases from state court:

rs at

The opinion of the of the Third District Court of Appeal appea

Appendix A to the petition and is

,

[x ] reported at Gil v. State, 2018 Fla. LEXIS 805 (Fla. 2018); or

The opinion of the of the Third District Court of Appeal appea

Appendix B to the petition and is

[X ] reported at Gil v. State, 239 So. 3d 69 (Fla. 3rd

rs at

DCA

January 17, 2018); or

[ ] has been designated for publication but is

[ ] is unpublished.

1

not yet reported; or

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my

. A copy of that decision appears at

case was

Appendix

[ ] No petition for rehearing was timely filed in my case.

States

[ ] A timely petition for rehearing was denied by the United

and a copy

Court of Appeal on the following date:

of the order denying rehearing appears at Appendix

[] An extension of time to file the petition for a writ of certiorari was

(date) on

granted to and including

(date) in Application No.

[ X ] For cases from state court:

[X] The date on which the highest state court decided my case

decided my case was April 5, 2018. A copy of that decision appears at

Appendix A

[ ] No petition for rehearing was timely filed in my case.

[X] The date on which the Third District Court of Appeal decided my

case decided my case was January 17, 2018. A copy of that decision

appears at Appendix B

[X] A timely petition for rehearing was thereafter denied by the

Third District Court of Appeal on the following date February 28,

2018 and a copy of the order denying rehearing appears at Appendix

E

[ ] An extension of time to file the petition for a writ of certiorari

(date) on

granted to and including

(date) in Application No.

The jurisdiction of this Court is invoked under 28 U.S.C. §1257(a).

2

was

CONSTITUTIONAL AND STATUTORY PROVISIONS INCLUDED

The Federal Constitution's Fourteenth Amendment provides that "{njo

person shall be

.

.

.

deprived of life, liberty, or property, without due process of law."

U.S. Const. Amend. XIV.

3

INTRODUCTION

This is an appeal from a final order denying Mr.

Gil's direct appeal per

of Trafficking in

curiam affirmed after a jury verdict of guilty

cocaine and

conspiracy to traffic in cocaine.

The State of Florida's key witness was confidential

Mr. Saita was paid as a "professional snitch"

informant Gerald Saita.

by the State and Federal law

enforcement to manufacture crimes.

STATEMENT OF THE CASE AND FACTS

ine and conspiracy

in coca

Petitioner Roberto Gil was charged with trafficking

witness against Mr. Gil was a

to traffic in cocaine. (R. 41-48). The State's key

. Saita is a two-time convicted

confidential informant named Gerald Saita. (T. 818)

caping to earning over $900,000

felon and professional snitch, who went from lands

working for state and federal law enforcement. (T.

891, 897). In addition to the

ty-year prison sentence, instead

$900,000 he has earned, Saita also avoided a twen

n. (T. 648, 894).

getting probation for federal wire fraud worth $1.2 millio

Saita's arrangement with law enforcement was that

percent of any money that was seized, but only if

he would receive twenty

his involvement resulted in an

arrest and forfeiture, and only if he testified favorably

for the prosecution. (T. 896).

He testified:

percent if it led

[DEFENSE COUNSEL]: But you would only get 20

to some seizure, right?

[SAITA]: Yeah. It had to be a seizure or arrest.

t. And then

[DEFENSE COUNSEL]: All right. Seizure and arres

prosecutors,

part of your fee was contingent on your assisting the

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S.

right?

[SAITA]: Yes.

[DEFENSE COUNSEL]: And assisting the prosecutors, right?

/

[SAITA]: Yes.

testifying favorably for the

And

SEL]:

[DEFENSE COUN

prosecutors, right?

[SAITA]: Of the case, yeah. (T. 896)

This arrangement with federal law enforcement was repeated when he

became a snitch for the Broward police department:

[DEFENSE COUNSEL]: And so far Broward has paid you $300,000?

[SAITA]: In that range.

[DEFENSE COUNSEL]: And the deal you had with them is also you get

20 percent of a cut?

[SAITA]: Yes.

[DEFENSE COUNSEL]: Okay. And that's based on an arrest that

Broward makes or Fort Lauderdale, right?

[SAITA}: Correct.

[DEFENSE COUNSEL]: That you have to come here and testify, right?

[SAITA]: Yeah.

[DEFENSE COUNSEL]: Is that part of the deal? And you have to testify

favorably to the prosecution. That's the deal?

[SAITA]: Yes.

(T. 898-99).

It is undisputed that the reverse sting in question was initiated by Salta, and

that he earned $5,800 for orchestrating the deal. (T. 902). Working for a joint

Miami-Broward narcotics task force, Salta acted as if he was a broker for cocaine

sellers (actually undercover officers) and approached Mr. Gil to see if he wanted

to

be a broker for cocaine buyers. (T. 474, 836). Salta testified, "I told him that I

had

the connection that had... real cocaine. And I told him.. .let's go find people

that

want to buy some." (T. 836). Gil had no history with drug sales, (T. 1199); Salta

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testified that he approached him solely because he knew Gil was out of work and

needed money. (T. 836).

According to Saita, Gil agreed to find purchasers for the cocaine in exchange

for a $1,000 finder's fee. (T. 482, 843). Saita claimed that within a week, Gil called

and said he had found a man, known only as El Negro, who would be able to connect

Saita with cocaine buyers. (T. 838-39). Gil and Saita went to a mall and met El

Negro to discuss the intended sale. (T. 840-41). The next day, Gil told Saita that El

Negro had found two men who were interested in buying cocaine. (T. 847, 849). The

two men, Eduardo Denis and Humberot Cabeza—who never testified at trial, nor

did El Negro—were supposed to meet the undercover officers posing as cocaine

sellers at a mall, but they never showed up. (T. 852). Saita acting on behalf of the

"sellers," told Gil that the deal was off, but claimed that Gil called later and said El

Negro, Denis, and Cabeza wanted another chance. (T. 853-55). Although Saita

claimed all his conversations were recorded, no recording of these alleged

interactions were entered into evidence. (T. 901). Detective Castro, surveilling from

a distance at the mall, did not see Gil meet with El Negro, Denis, or Cabeza. (T.

486). The only evidence of these interactions was Saita's word.

The next day, Saita picked up Gil and drove to a warehouse owned by Denis

as instructed by El Negro. (T. 856, 862). El Negro introduced Gil and Saita to Denis,

and then left. (T. 865). Fifteen minutes later, Detective Castro arrived at the

warehouse, acting as a cocaine supplier, and Saita introduced him to Denis, the

buyer. (T. 496, 866-67). The two men negotiated the price of the kilo, and then

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Detective Leza arrived with the cocaine. (T. 868-69). Denis tested the quality of the

cocaine inside Castro's car, and then, apparently satisfied, called Cabeza to come to

the warehouse with $29,000 to purchase the kilo. (T. 532, 542). Gil called Saita to

say that the "gentlemen were ready" and Saita said they would be there in three

minutes. (T. 546, 609). Castro was briefly introduced to Gil when he first arrived,

but testified that Gil was not involved in any of the negotiations in the warehouse

or parking lot, (T. 516); rather, he was simply "in the general vicinity" of the

warehouse while Denis and Castro conducted their business. (T. 496, 518, 522, 528,

534). Video and photographs, entered into evidence, show Gil standing

approximately thirty feet away from where the transactions occurred. (T. 538). By

the time the money and cocaine were actually exchanged, Gil had left the

warehouse. (T. 560, 575).

In its motion for judgment of acquittal, the defense moved to dismiss the

charges on the basis that Saita's contingent fee arrangement with the police

violated Gil's right to due process. (T. 956-57; 1044). The trial court simply denied

the motion without any reason whatsoever. (T. 958) (See Appendix B). Gil was

convicted as charged and sentenced to two concurrent fifteen-year minimum

mandatory terms. (SR. 66-68).

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ISSUES PRESERVED ON APPEAL

On appeal, Mr. Gil raised the following issue to the Third District Court of

Appeal in Florida:

(1) The State of Florida deprived Mr. Gil of his right to due process by paying

the State's key witness, Gerald Saita, a contingent fee arrangement of

twenty percent only in the event of an arrest, forfeiture, and favorable

testimony; which was done for the sole purpose of manufacturing a crime

for profit.

On January 17, 2018, the Third District Court of Appeal issued a per curiam

affirmed opinion. And the Third DCA denied Gil's Motion for Rehearing on

February 28, 2018.

This timely appeal to the Supreme Court of the United States follows...

F:]

SUMMARY OF THE ARGUMENT

The due process clause of the Florida Constitution and the United States

Constitution prohibits prosecutions that rely primarily on the testimony of a

confidential informant involved in a contingency fee arrangement with law

enforcement. The law defines a contingency fee as one where a percentage of seized

assets are earned in exchange for an outcome, such as arrests or favorable

testimony. The State's key witness in this case, confidential informant Gerald Saita,

was engaged in such an arrangement with the Broward police department. He

testified that he earned twenty percent—generating over $900,000 over the years—

of any cash that was seized, but only if his involvement produced an arrest and a

forfeiture, and only if he testified favorably for the prosecution. This is precisely the

circumstances prohibited by the Florida Supreme Court in State v. Glosson. Because

the State's case against Mr. Gil was proven almost entirely through Saita's

purchased testimony, the appropriate remedy is to reverse the trial court's denial of

his motion for judgment of acquittal and vacate his convictions.

REASONS FOR GRANTING THE PETITION

For years, the State of Florida (prosecutors and police), and likely other State

and Federal agents around the country, have been incentivizing criminals with

substantial financial compensation to manufacture and entice people, who

otherwise would not be interested, in potential drug deals in exchange for a large

sum of money.

The question is why the State can provide large sums of money (in this case it

was $5,800.00 for a couple of days of work more than your average Joe in America)

and leniency for testimony to a confidential informant to manufacture crimes that

incarcerate the accused for decades in the state penitentiary.

This case contradicts the Supreme Court's determination in Sorrells v United

States, 287 US 435, 77 L Ed 413, 53 S Ct 210 (1932); Sherman v United States, 356

US 369, 2 L Ed 2d 848, 78 S Ct 819 (1958) and United States u. Russell, 411 US 423,

36 L Ed 2d 366, 93 S Ct 1637 (1973), that government agents violating criminal

suspects due process rights for instigating or creating a crime.

The exact scenario in question has never been squarely ruled on by the

United States Supreme Court and Mr. Gil urges this Court that this imperative

issue is ripe for review by this Court.

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nt's contingent fee

Question One: Whether a confidential informa

earning twenty percent only in the event of

arrangement with police

tes Mr. Gil's Fourteenth

arrest, forfeiture, and favorable testimony viola

Amendment Due Process rights?

-

-

d States Supreme

The State's prosecution in this case violated the Unite

es. Police must fight this

Court edict that "Society is at war with the criminal class

war, not engage in the manufacture of new hostilities." State

v. Anders, 596 So. 2d

s, 287 U.S. 435, 453-

463, 467 (Fla. 4th DCA 1992), quoting Sorrells v. United State

used Garald Saitta to

54 (1932). The Miami-Broward narcotics task force

for Saitta and $23,200 for

manufacture a reverse cocaine sting, which netted $5,800

s off the street. Saitta's

the task force, without taking a single ounce of drug

contingent fee arrangement violated Gil's Fourteenth

Amendment right to due

process, as it incentivized Saitta to color his testimony in

order to secure his hefty

payments. The trial court erred in denying Gil's motion to

dismiss; his convictions

must now be vacated.

Saitta's twenty percent cut of any seized assets is

es

arrangement. "It is generally held that an informant receiv

a contingent fee

a contingent fee if a

ular contingency, such as

financial benefit will flow to him depending upon a partic

an arrest or a conviction, or financial compensation is in some

way contingent upon

." Taylor v. State, 612 So.

a future event such as testimony at trial or a conviction

a testified that he only

2d 626, 629 (Fla. 1st DCA 1993) (emphasis added). Saitt

receives his fee if his involvement results in an arrest

and a seizure, and if he

testifies favorably for the prosecution. (T. 896, 898-99). This

11

is a classic example of a

prohibited contingency fee relationship. See Taylor, 612 So. 2d at 629.

This case is on all fours with State v. Glosson, 462 So. 2d 1082 (Fla. 1985).

Following a reverse sting operation, the defendants were charged with trafficking

and conspiracy to traffic cannabis. Id. at 1083. The reverse sting was arranged by

Norwood Wilson, a paid confidential informant of the Levy County Sheriffs office.

Id. The following facts were undisputed: (1) Wilson received ten percent of all civil

forfeitures from investigations he initiated and participated in; (2) in order to earn

the fee, he was required to testify and cooperate in the prosecutions; (3) Wilson was

a vital witness in the prosecution of these defendants. Id.

Under these facts, the Florida Supreme Court held, "The agreement in this

case to pay an informant a contingent fee conditioned on his cooperation and

testimony in criminal prosecutions violates constitutional due process." Id. at 1084.

It rejected the narrow application of the due process defense used in federal courts,

instead holding:

We can imagine few situations with more potential for abuse of a defendant's

due process right. The informant here had an enormous financial incentive

not only to make criminal cases, but also to color his testimony or even

commit perjury in pursuit of the contingent fee. The due process right of all

citizens require us to forbid criminal prosecutions based upon the testimony

of vital state witnesses who have what amounts to a financial stake in

criminal convictions.

Id. at 1085.

Saitta's contingent fee is undistinguishable from Wilson's in Glosson and

therefore must be found to violate Gil's Fourteenth Amendment right to due

process. Just like Wilson, Saitta received a percentage of every forfeiture he

12

initiated and participated in, was required to testify favorably for the prosecution,

and was the State's key witness against Gil. (T. 896, 898-99). See Glosson, 462 So.

2d at 1083. Although the undercover officers observed Gil at the warehouse on the

day in question, they testified that he was not involved in the transactions and was

either at a distance or absent altogether when the deals were happening. (T. 496,

518, 522, 528, 534). Instead, Gil's alleged culpability in the conspiracy and

trafficking scheme occurred days earlier, in conversations witnessed by and testified

to solely by Saitta. (R. 83-84). This is intolerable under the due process clause of

article I, section 9, of the Florida Constitution. See Glosson, 462 So. 2d at 1085 and

Muñoz v. State, 629 So. 2d 90, 91 (Fla. 1993).

In State v. Hunter, 586 So. 2d 319, 322 (Fla. 1991), the Florida Supreme

Court expanded on the Glosson precedent by finding that the "objective entrapment

standard includes due process considerations" as well. Objective entrapment is

established as a matter of law where there was no "specific ongoing criminal

activity" until one was created by a state agent. Id. at 322. In such situations, the

trial court should grant the defense's motion for judgment of acquittal. Id. This

outcome applies here, as there was no ongoing criminal activity until Salta

propositioned Gil by telling him, "I have a connection that has real cocaine. Let's go

find people who want to buy some." (T. 836). Gil's motion for judgment of acquittal

should have been granted under these circumstances.

Although entrapment defenses are often raised in pretrial motions to dismiss,

that is for pragmatic purposes, not as a matter of law. Cf. Glosson, 462 So. 2d at

13

1083 (entrapment litigated pretrial in order to avoid "the expense of a trial and

possibly have a directed judgment of acquittal on the same facts."). Rather, the

defense is encouraged to raise the issue whenever it becomes apparent that a due

process violation has occurred. See Cruz v. State, 465 So. 2d 516, 520 n. 2 (Fla. 1985)

("The violation of the principles of justice by the entrapment of the unwary into

crime should be dealt with by the court no matter by whom or at what stage of the

proceedings the facts are brought to its attention."). After learning of Saita's

contingent fee arrangement for the first time, the defense properly moved the court

to dismiss the charges. (T. 956-957; 1044). As his motion alleged all the necessary

elements of a due process violation, the trial court erred in denying it. That ruling

must now be reversed with instructions to vacate Mr. Gil's convictions. Hunter, 586

So. 2d at 322.

This is a vivid example on the many ways justice can go astray and should be

an alarming wake-up call to those who administer our justice that serious flaws

must be addressed to protect the innocent.

CONCLUSION

The petition for a writ of certiorari should be granted.

Dated this )61 day of November 2018.

Respectf ly Submitted,

Roberto Gi

DC# B14583

South Bay Correctional Facility

600 U.S. Hwy 27 South

South Bay, FL 33493

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