Petition — Horowitz v. Florida

Ottice Supreme Court, U.S.

FILED

81-254 AUG? 1981

ALEXANDER L. Nervs, 4

CLERK a

No. 81-

in the

Supreme Court

of the

United States

October Term, 1981

BERNARD H. HOROWITZ, and

DAVID HOROWITZ,

Petitioners,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

OF FLORIDA, FOURTH DISTRICT

JOEL HIRSCHHORN, P.A.

Michael Tarre, Esq. By: Joel Hirschhorn, Esq.

Counsel for Petitioner Counsel for Petitioner

David Horowitz Bernard H. Horowitz

25 West Flagler Street, 3738 742 Northwest 12th Avenue

Miami, Florida 33130 Miami, Florida 33136

Telephone: (305) 377-8155 Telephone: (305) 324-5320

QUESTIONS PRESENTED

1. WHETHER THE PROSECUTOR'S MISCONDUCT

AT TRIAL WAS SO PERVASIVE AND

PREJUDICIAL AS TO DENY THE DEFENDANTS’

RIGHTS TO A FAIR AND IMPARTIAL TRIAL

AS GUARANTEED BY THE FIFTH AND

FOURTEENTH AMENDMENTS OF THE UNITED

STATES CONSTITUTION WHERE

(A) DURING CLOSING ARGUMENT TO THE

JURY, THE PROSECUTOR POINTED TO

THE DEFENDANTS’ AND INDIRECTLY

COMMENTED ON THEIR FAILURE TO

TESTIFY; AND

B) THE PROSECUTOR'S CLOSING ARGUMENT

WAS IMPROPER AND INFLAMMATORY,

DESIGNED SOLELY TO PREJUDICE THE

DEFENDANTS IN THE EYES OF THE JURY.

2. WHETHER A DEFENDANT IS DENIED HIS

RIGHT TO DUE PROCESS OF LAW AS

GUARANTEED BY THE FOURTEENTH

AMENDMENT OF THE UNITED STATES

CONSTITUTION WHERE AN ATTORNEY,

REPRESENTING DEFENDANT, HAD BEEN

LISTED AS A STATE’S WITNESS AND HAD

PREVIOUSLY REPRESENTED A STATE’S

WITNESS AND HELPED SECURE IMMUNITY

FROM PROSECUTION FOR THAT WITNESS,

RESULTING IN A CLEAR CONFLICT OF

INTEREST TO WHICH THE TRIAL COURT DID

NOT ADEQUATELY RESPOND.

3. WHETHER PETITIONER DAVID HOROWITZ WAS

DENIED DUE PROCESS OF LAW AND

EFFECTIVE ASSISTANCE OF COUNSEL

BECAUSE HE WAS REPRESENTED AT TRIAL

BY THE SAME ATTORNEYS WHO REPRE-

SENTED THE CO-DEFENDANT IN THE CASE.

TABLE OF CONTENTS

Page

Cf PTET eer eer TT ee i

, AA [..., iv

Citation to the Opinion Below .................. vii

D ⅛⁰ AA.. „4 viii

Constitutional Provision Involved .............. viii

Z 1

Reasons for Granting the Writ 5

/ ˙ —ꝑʃʃg— m 22

TABLE OF AUTHORITIES

Cases: Page

Anderson v. Nelson,

, 7

Berger u United States,

D ˙ A . 8. 11

Boykin u Alabama,

r e 16

Brady u United States,

, V. 16

Chapman u State of California,

r eh ebiade anne e660 6. 7,8

Cuyler v. Sullivan,

. 14. 17.

19, 20

Fontaine v. California,

Ee 7

Glasser v. United States,

D w ee ee 13, 18, 19

Griffin v. State of California,

D w .. 6. 7

Holloway u Arkansas,

. 13, 14, 16,

18, 19, 21

iv

TABLE OF AUTHORITIES (Continued)

Cases: Page

Horowitz v. State,

___$o.2d__ (Fla. 4th DCA)

(Opinion filed May 6,1981)................. vii

Johnson v. Hopper,

639 F.2d 236 (Sth Cir. 1961) ................. 21

Lockett v. Ohio,

irre. .... 7

United States u Martinez,

630 F.2d 361 (5th Cir. 1980ö!y))) 21

Viereck v. United States,

e 9

Wood u Georgia,

— U.S. 101 S.Ct. 1097 (1981) .... 14, 16,17

Zuck v. State of Alabama,

588 F.2d 436 (5th Cir. 1979)

cert. den. 444 U.S. 833 (1979) ............... 21

STATUTE:

§90.09 Florida Statutes (1978) .................. 12

Fla.R.App.Pro. 9.030(aX2MA) )) viii

L viii

TABLE OF AUTHORITIES (Continued)

Page

CONSTITUTIONAL PROVISIONS:

Fifth Amendment, United States Constitution . i, viii,

5, 6,9

Sixth Amendment, United States Constitution viii,

5,13

Fourteenth Amendment, United States

DD A i, viii,

5, 6, 9, 12

Miscellaneous:

A.B.A. STANDARDS RELATING TO THE

ADMINISTRATION OF CRIMINAL JUSTICE,

THE DEFENSE FUNCTION, §3.5(b1974) .......... 18

vi

CITATION TO THE OPINION BELOW

The decision of the District Court of Appeal of

Florida, Fourth District, has not yet been reported.

Horowitz u State. 80. 2d (Fla. 4th DCA, Opinion

filed May 6, 1981). (A. 1).

The symbol “A.” refers to the Appendix attached hereto.

vii

JURISDICTION

The Judgment of the District Court of Appeal of

Florida, Fourth District, was entered on May 6, 1981,

affirming Per Curiam without opinion Petitioner's

conviction (A. 1). The Court of Appeal denied a timely

Petition for Rehearing on June 10, 1981 (A. 2). The

jurisdiction of this Court is invoked under 28 U.S.C.

§1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The case, sub judice, involves Petitioners’ right to

a free and impartial trial, due process of law, and effective

assistance of counsel free from conflicts of interest as

guaranteed by the Fifth, Sixth and Fourteenth

Amendments of the United States Constitution. U.S.

Const., Amend. V, VI and XIX, §1. (A. 35-36).

Review by the Supreme Court of Florida is precluded by

Florida Rules of Appellate Procedure 9.030(aX2MA) which bars

review of Per Curiam affirmed decisions of the District Court of

Appeal.

STATEMENT OF THE CASE

On July 19, 1977, Petitioners Bernard and David

Horowitz, father and son, and others, were charged, by

the filing of a criminal Information, with various offenses

relating to the sale of unregistered securities.

Subsequently, on June 15, 1978, a second amended

Information was filed, charging only Petitioners Bernard

and David Horowitz. Both Petitioners were subsequently

convicted.

In 1971, Petitioner Bernard Horowitz formed

Equitable Development Corporation (hereinafter referred

to as “EDC”) for the purpose of acquiring and developing

real estate in Florida. Bernard Horowitz was president

of EDC and his son, David, was treasurer. EDC acquired

two large tracts of land, one of which, Highland Park

Estates (hereinafter referred to as “HPE”), was purchased

from Delstar Corporation (hereinafter referred to as

“Delstar”). This acquisition and the subsequent efforts

to finance its development and resale were the subject

matter of the alleged criminal activity. The purchase

involved a minimum down payment and a blanket first

mortgage in favor of Delstar.

In its effort to finance its lot subdivision sales

program, EDC entered into an exclusive contract with

Financial Resources Corporation (hereinafter referred

to as “FRC”) whereby FRC was to sell“ promissory

notes, executed by EDC, to private investors. These

notes were to be secured by a first mortgage on various

lots within HPE. All investors were informed that the

*The word “sell” is a misnomer. In reality, investors lent

money, in varying amounts, to EDC.

promissory notes they received were secured by a first

mortgage on certain lots in HPE. The lots, however,

were already burdened with a first mortgage‘ to Delstar.

The State’s theory was that the individual lot releases

from the Delstar master mortgage were never obtained

by EDC for the lots which had been given to the investors

who had “purchased” EDC’s promissory notes. Culpability

and criminal liability hinged on Petitioners’ intent with

respect to their failure to obtain these lot releases.

During the State’s closing argument to the jury,

the prosecutor pointed to the Petitioners, who did not

testify at trial, and stated: “If your intention was good,

Bernard Horowitz and David Horowitz, why were not

those releases obtained back in February?” (A. 22).

Additionally, in questioning a State’s witness regarding

a conversation the witness allegedly had with Bernard

Horowitz regarding the releases, the prosecutor elicited

from the witness, on two separate occasions and over

Petitioners’ objections, that he told Bernard Horowitz:

“What good would [the releases] do because the ‘crime’

has been committed.” (A. 12-14, 16-18).°

‘This Delstar master mortgage had a clause authorizing the

release, on a non-contiguous, random basis of individual lots upon

EDC’s meeting certain requirements, particularly payment of

certain amounts of money.

The first time the witness’ lay opinion as to the ultimate fact

came out, the Judge instructed the prosecutor that he was concerned

with the comment and the jury would have to be instructed to

ignore the statement. (A. 14). Despite this admonition and the

Judge's subsequent instruction to the jury (A. 14), the prosecutor,

on the very next day, elicited the exact same statement from the

witness in the presence of the jury. (A. 16-18).

Initially, the attorney of record for both Bernard

and David Horowitz was Albert Siegel. (A. 28-29, 30-31).

However, as the Clerk's minutes reflect, Mr. Siegel's

motion to withdraw from the case (presumably due to

his having been listed as a State’s witness with knowledge

of material facts) was granted October 7, 1977 (A. 32-33).

Nevertheless, Ben Cohen, apparently lead counsel for

both Petitioners (A. 9-10) who filed a notice of appearance

as “co-counsel” on May 11, 1978 (A. 4), was “assisted”

by Mr. Siegel throughout the course of the trial. (For

example, A. 9, 9-10, 15). Although at times during trial

it was very difficult to discern which attorney represented

which Petitioner (A. 9-10), it is clear from the Record

that Mr. Siegel fully participated in all aspects of the

trial on behalf of both Bernard and David Horowitz.

Lester Green, a key State witness and a defendant

in the original Information (A. 27), was represented by

Albert Siegel (A. 30-31). Mr. Siegel obtained, for Mr.

Green, in exchange for his testimony, immunity from

prosecution. (A. 20-21). Moreover, Mr. Siegel, aside from

representing Petitioners, was also listed by the prosecutor

as a State’s witness. (A. 5-6). In a hearing conducted

prior to trial, the issue of Mr. Siegel's possible conflict

of interest was discussed. At this hearing, Petitioners

allegedly “waived” their right to conflict free assistance

of counsel, however, this waiver clearly was not intelligent

and voluntary. (A. 25-26).

On numerous occasions throughout the trial, both

the attorneys and witnesses used the term “Mr. Horowitz”

without differentiating between David the son, and

Bernard the father. (See, e.g., A. 11). Failure to make

this distinction was especially obvious and misleading

during a witness’ testimony as to exactly who had

authority over mortgage fund disbursements — Bernard,

or David (A. 11) — which was the gravamen of the

State's case.

Following a jury trial on November 15, 1978,

Petitioner Bernard Horowitz was adjudicated guilty

and sentenced to a total of thirty-five (35) years

imprisonment for twenty-one (21) counts of “Fraudulent

Securities Transactions”. On November 17, 1978, Petitioner

David Horowitz was sentenced to two (2) years

imprisonment for two (2) counts of “Fraudulent Securities

Transactions”. On May 6, 1981, the District Court of

Appeal, Fourth District, rendered its decision affirming

the Trial Court Per Curiam without opinion. (A. 1). The

Court of Appeal denied a timely Petition for Rehearing

on June 10, 1981. (A. 2).

*Petitioner David was also placed on five (7 years probation

with the condition that he pay a fine of $10,512.00 plus restitution,

the amount, mode and manner to be determined by the Probatio:

Office.

REASONS FOR GRANTING THE WRIT

The granting of this Petition for Writ of Certiorari

will advance the administration of criminal justice by

clarifying the proper application to all criminal defendants

of the Fifth, Sixth and Fourteenth Amendments’

guarantees of a fait and impartial trial, free from

prosecutorial misconduct, and establish much needed

rules of law with respect to claims of ineffective assistance

of counsel. Unless redressed, Petitioners will suffer

irreparable, blatant violations of rights guaranteed them

by the Fifth, Sixth and Fourteenth Amendments to the

United States Constitution. State Court enfcrcement

of the right to a fair trial and effective assistance of

counsel free from conflicts of interest ought to be

consistent with this Court's decisions. Petitioners were

denied these rights at the trial level and the Appellate

Court affirmed without the benefit of a written opinion.

Granting this Writ will enable this Court to offer much

needed clarification and amplification of its prior decisions

in the area of a defendant’s right to a fair and impartial

trial unimpeded by prosecutorial misconduct, ineffective

assistance of counsel and counse! free from conflicts of

interest.

1. THE CUMULATIVE EFFECT OF THE

PROSECUTING ATTORNEY’S ACTIONS AT

TRIAL RESULTED IN THE DEPRIVATION OF

PETITIONER’S RIGHT TO A FAIR AND

IMPARTIAL TRIAL AS GUARANTEED BY THE

FIFTH AND FOURTEENTH AMENDMENTS.

(A) The Prosecutor's Comment on the Petitioner's

Failure to Testify.

The prosecutor's indirect comment, coupled with

his actions during closing argument to the jury on the

Fetitioner's failure to testify, deprived Petitioners of

their constitutionally protected right to be free from

self-incrimination and is wholly adverse to this Court’s

prior decisions in this area.

It is firmly established that the Fifth Amendment,

made incumbent on the States by reason of the Fourteenth

Amendment, forbids comment by the prosecution on

the accused's failure to testify. Griffin u State of California,

380 U.S. 609, 615, (1965). In Griffin, this Court declared:

. .. comment on the refusal to testify is a remnant of

the inquisitorial system of criminal justice . . which

the Fifth Amendment outlaws.” (Citations and footnote

omitted). Jd. at 614. This Court went on to say: “What

the jury may infer, given no help from the court is one

thing. What it may infer when the court solemnizes the

silence of the accused into evidence against him is

quite another.” Id. at 614.

In Chapman v. State of California, 386 U.S. 18

(1967), this Court addressed the issue of whether a

violation of Griffin, supra, can be held to be harmless.

The standard set by this Court was that a prosecutor’s

comment on the accused’s silence is held harmless,

only if it is found to be “harmless beyond a reasonable

doubt.” Chapman v. State of California, supra, at 24.

This Court has never had the opportunity to squarely

address the issue of whether a prosecutor's allusions to

and indirect comment on the accused's failure to testify

can be held to be harmless. In Griffin u State of California,

supra, and the line of cases following it, this Court

repeatedly stressed that a prosecutor’s direct comment

to the jury on the failure of a defendant to testify is

violative of the self-incrimination clause of the Fifth

Amendment. Chapman u State of California, 386 U.S.

18 (1967); Fontaine v. California, 390 U.S. 593 (1968);

Anderson v. Nelson, 390 U.S. 523 (1968). However, in all

these cases, a State constitutional provision permitted

comment on the defendant's silence. In those cases, the

prosecutor’s comments were extensive and stressed to

the jury as a basis of conviction. See, e g., Anderson u

Nelson, supra.

In a more recent case, this Court, while confronted

with the problem of a prosecutor’s indirect comment

on an accused's failure to testify, did not fully address

the issue. In Lockett v. Ohio, 438 U.S. 586 (1978), the

petitioner contended that the prosecutor's repeated

references, in his closing remarks, to the State’s evidence

as “unrefuted” and “uncontradicted” constituted an

impermissible comment on her failure to testify. This

Court held, however, that the prosecutor’s comments

were not unconstitutional since petitioner’s own counsel

had focused the jury’s attention on her silence by outlining

her contemplated defense in his opening statement

and by stating to the jury that petitioner would be the

“next witness”. Lockett v. Ohio, supra, at 595. Sub

judice, only the prosecutor focused the jury’s attention

on Petitioners’ failure to testify at trial.

In the instant case, although the prosecutor's

comment on Petitioners’ silence was not as extensive

nor as direct as those made in Griffin v. State, supra, it

was just as prejudicial to Petitioners and cannot be

deemed harmless. Petitioners were charged with selling

promissory notes to the public, secured by first mortgages

without obtaining releases from the original, master

mortgage. The prosecuting attorney made the following

statement during his closing argument before the jury:

The State is bound to prove that their

[Petitioners’] intention was bad; that there was

bad faith, that they intended to defraud these

people. F your intention was good, Bernard

Horowitz and David Horowitz, why were not

these releases obtained back in January or

February?

(A. 22) [Emphasis added]. Additionally, the prosecutor

actually pointed to both the Petitioners, in the presence

of the jury, as he asked the question emphasized above.

Although the prosecutor denied pointing toward the

Petitioners (A. 24-25), the trial judge found otherwise.

(A. 23). Petitioners objected to the prosecutor's remarks,

however, their motion for mistrial (A. 22-23) was denied.

(A. 23). In light of the offense with which Petitioners

were charged, the prosecutor’s comment clearly was

not “harmless beyond a reasonable doubt” and warrants

reversal. See Chapman v. State of California, supra. As

this Court stated in Chapman v. State of California,

supra, at 26: “Petitioners are entitled to a trial free

from the pressure of unconstitutional inferences.”

(B) The Prosecutor’s Closing Argument.

The prosecutor’s closing argument was improper

and inflammatory, designed solely to prejudice the

Petitioners in the eyes of the jury. The boundaries

within which a prosecuting attorney may properly conduct

himself at trial were delineated by this Court in Berger

v. United States, 295 U.S. 78 (1935). There the court

stated:

The United States Attorney is the

representative not of an ordinary party to a

controversy, but of a sovereignty whose

obligation to govern impartially is as compelling

as its obligation to govern at all; and whose

interest, therefore, in a criminal prosecution

is not that it shall win a case but that justice

shall be done. As such he is in a peculiar and

very definitive sense the servant of the law,

the twofold aim of which is that guilt shall not

escape or innocence suffer. He may prosecute

with earnestness and vigor - indeed, he should

do so. But while he may strike hard blows, he

is not at liberty to strike foul ones. It is as

much his duty to refrain from improper methods

calculated to produce a wrongful conviction as

it is to use every legitimate means to bring

about a just one.

Id. at 88 [Emphasis added]. This Court has applied

these principles to a prosecutor’s closing remarks to a

jury as well. See Viereck v. United States, 318 U.S. 236

(1943).

In the instant case, the prosecutor failed in his

duty to act impartially and to “use every legitimate

means” to bring about a “just” conviction. First, as

stated earlier, during summation to the jury, the

prosecutor commented on the Petitioners’ failure to

testify, thereby violating Petitioners’ right to be free

from being compelled to testify as guaranteed by the

Fifth and Fourteenth Amendments. Second, the

prosecutor invited speculation on a non-existent issue.

In his closing argument, the prosecutor stated:

You are to decide whether or not they are

guilty; whether they defrauded these people.

You are to decide if they are responsible for

the financial loss suffered by these individuals.

(A. 21-22) [Emphasis added]. When this remark is read

in light of the State’s case, the prejudicial appeal to the

jury’s sympathies is clear. Fourteen State witnesses,

all “victims” of the Petitioners’ alleged crime, testified

as to the thousands of dollars they lost by virtue of

their investments in Petitioners’ company. The jury's

task was to determine whether or not a fraud was

committed. The prejudicial effect of the prosecuting

attorney arguing that the jury can determine if the

defendants were responsible for those investors’ losses

cannot be denied.

Finally, the prosecutor’s closing argument to the

jury contained “facts” not in the record. The prosecutor

stated:

Now, what I am suggesting to you is this:

$2,800.00 was what was going to be paid back,

in excess of what was brought in, and all the

corporation actually got was $2,050.00. That

leaves $750.00 in the hole. Now, this

presupposes - this figure presupposes that they

intended — intended to never get the releases.

That was financially impossible. It was financially

unfeasible. They never could have, because

they were in the red. It never would have

worked.

10

(A. 25). Petitioners objected to this statement and a

lengthy argument ensued (out of the presence of the

jury). The prosecuting attorney attempted to argue

that Petitioners never intended to get the releases

from the master mortgage because it was financially

impractical. However, not all the figures and amounts

the prosecutor relied on to reach his conclusion were

actually in evidence. Moreover, the prosecutor's argument

that “it was financially impracticable to obtain the

releases” was clearly erroneous because he failed to

account for the retention, by Petitioners’ company, of

the mortgage investors’ money and the ever-increasing

value of the property over time.

Thus, the prosecutor’s remarks to the jury were

not only “hard blows” but “foul ones” as well. See

Berger v. United States, supra, at 88. In the instant

case, as in Berger v. United States, supra:

. . » We have not here a case where the

misconduct of the prosecuting attorney was

slight or confined to a single instance, but one

where such misconduct was pronounced and

persistent, with a probable cumulative effect

upon the jury which cannot be disregarded or

inconsequential. A new trial must be awarded.

Id. at 88.’

As evidence of the pervasiveness of the prosecutor's misconduct,

in addition to the above described conduct, the prosecutor also did

the following: On direct examination, the prosecutor, contrary to

the State Rules of Evidence, impeached his own witness who was

an employee of Petitioner Bernard Horowitz by inquiring into the

nature of an unrelated felony conviction for obtaining a fraudulent

loan. (A. 18-19). This had the effect of permitting the jury to

11

2. PETITIONERS WERE DENIED THEIR RIGHT

TO DUE PROCESS OF LAW GUARANTEED BY

THE FOURTEENTH AMENDMENT SINCE THE

TRIAL COURT, AFTER BEING PUT ON NOTICE

AS TO A CONFLICT OF INTEREST PROBLEM,

FAILED TO ADEQUATELY INVESTIGATE AND

RECTIFY IT.

One of the attorneys representing the Petitioners

at trial, Albert Siegel, was listed as a State's witness

(A. 5-6), and had previously represented (A. 30-31) and

helped secure immunity from prosecution (A. 20-21),

for a former co-defendant turned State’s witness. (A.

30-31). As a result, Mr. Siegel had a clear conflict of

interest in this case. The Trial Court's failure to effectively

remedy this situation resulted in Petitioners being denied

due process of law as guaranteed by the Fourteenth

Amendment.

(Footnote 7 Continued)

improperly infer that the Petitioner had a bad character and evil

motive and was contrary to F.S.A. §90.09 (A. 34) in effect at the

time of trial. Additionally, the prosecutor questioned a State's

witness regarding an out-of-court conversation the witness allegedly

had with Petitioner Bernard Horowitz wherein Petitioner Horowitz

requested 1200 lot releases (A. 11-14). On two occasions, the prosecutor

elicited fre the witness, over Petitioner's objections (A. 13-14,

17-18), that he told Petitioner, “What good would [the releases] do

because the crime has been committed [Emphasis added]. (A. 13,

17). The prosecutor elicited this testimony from the witness a

second time (A. 17) despite Petitioner's initial objection (A. 13-14)

and the trial Court's instruction to the jury to “disregard” the

witness’ opinion (A. 14). These repeated elicitations of an unadopted,

irrelevant, prejudicial lay opinion (which was clearly hearsay as to

David Horowitz) usurped the jury's province as the sole determiner

of guilt or innocence and was clearly prejudicial to Petitioners.

12

The right of an accused to have assistance of counsel,

free from conflicting interests, has been recognized by

this Court in Glasser u United States, 315 US. 60

(1942) where this Court stated: “. . . ‘Assistance of

counsel’ guaranteed by the Sixth Amendment

contemplates that such assistance be untrammeled and

unimpaired by . . . one lawyer . . simultaneously

represent{ing] conflicting interests. If the right to

assistance of counsel means less than this, a valued

constitutional safeguard is substantially impaired.” /d.

at 70.

It is also firmly established that a court, when put

on notice as to a possible conflict problem, has a duty to

investigate and take the necessary steps to alleviate

the problem. In Holloway v. Arkansas, 435 U.S. 475

(1975), this Court stated:

Upon the trial judge rests the duty of

seeing that the trial is conducted with solicitude

for the essential rights of the accused. . . The

trial court should protect the right of an accused

to have the assistance of counsel.

Of equal importance with the duty of the

court to see that an accused has the assistance

of counsel is its duty to refrain from

embarrassing counsel in the defense of an

accused by insisting, or even suggesting, that

counsel undertake to concurrently represent

interests which might diverge from those of

his first client, when the possibility of that

divergence is brought home to the court.

13

Id. at 484 [citations omitted]. This Court underscored

this principle in the recent case of Cuyler u Sullivan,

446 U.S. 335 (1980) where it held that a court must

initiate an inquiry if it “knows or reasonably should

know that a particular conflict exists.” Jd. at 347. The

issue of a court’s duty to respond to a possible conflict

of interest problem was addressed by this Court, at its

last term, in Wood u Georgia. U.S. . 101 S.Ct. 1097

(1981). In Wood, this Court was precluded from addressing

the question raised by petitioners since it noticed that

the record suggested petitioners’ counsel was in a possible

conflict of interest situation — could have deprived

petitioners of their right to due process of law. The

majority in Wood found that the lower court should

have been aware of the conflict problem since the State

explicitly »sised it and requested the lower court to

look into it. Jd. at 1104. In remanding for further findings

concerning possible conflict of interest violations, this

Court stated: “Moreover, Sullivan mandates a reversal

when the trial court has failed to make an inquiry even

though it ‘knows or should know that a particular conflict

exists. ” [citations omitted]. Wood u Georgia, supra, at

1104 n. 18.

Granting this Petition for Writ of Certiorari would

enable this Court to specifically prescribe how extensive

a court’s inquiry must be when it is faced with a possible

conflict of interest problem and to elaborate on what

other steps a court can take to alleviate the problem.

Although it is well settled that a trial judge faced with

a possible conflict situation must make an inquiry into

it, Holloway u Arkansas, supra, at 485, Cuyler u Sullivan,

supra, at 347, Wood u Georgia, supra, at 1104, the

extent of this inquiry and what additional courses of

14

action a judge may take have never been delineated by

this Court.

In the instant case, even though a conflict of interest

situation was present and this was brought to the

Court's attention, the trial judge failed to adequately

respond to it, thereby depriving Petitioners of their

right to due process of law. Mr. Ben Cohen and Mr.

Albert Siegel were the two attorneys involved in the

representation of Petitioners. Although at times during

the trial it was difficult to discern which attorney was

representing which Petitioner (A. 9-10), it is clear from

the Record that Mr. Siegel actively participated

throughout the trial and, in effect, acted as co-counsel

for the Petitioners. One of the State’s key witnesses

testifying at trial was Lester Green. Mr. Green had

been named as a defendant in the State's original criminal

Information (A. 27) and was represented by Mr. Siegel

at that time. (A. 30-31). In fact, Mr. Siegel assisted in

getting Mr. Green immunity from prosecution in exchange

for his testimony against Petitioners. (A. 20-21). Moreover,

Mr. Siegel himself was listed as a State’s witness (A.

5-6). Because of Mr. Siegel's close affiliation with a key

State witness and his involvement in the salient facts

and events which led to the charges against the

Petitioners, a conflict of interest clearly existed.

Furthermore, the trial court was fully apprised of

the conflict problem but did not adequately respond to

it. The prosecuting attorney made the following

statements at trial:

That is an obvious objection Your Honor. Mr.

Siegel is here solely as an assistant. J have

already made known to the court of the inherent

15

conflict of interest that is involved in this

case...

(A. 15). [Emphasis added]. Subsequently, the Court

responded:

I think we all agree that the possibility of a

conflict of interest is there because you

represented Mr. Greene. Mr. Greene will be

testifying here against the Horowitzes .. . But

the Horowitzes were here during the full hearing

we had on this the first day before trial started.

We have fully apprised them of what the conflict

is and they waived that... the court does not

see a conflict of interest at this time.

(A. 16).

It is clear then that the conflict of interest problem

was certainly “brought home to the court”, Holloway u

Arkansas, supra, at 484, and that the Court failed to

adequately inquire into it and take steps to alleviate it.

As this Court stated in Wood u Georgia, supra, at 1104:

These facts demonstrate convincingly the duty

of the court to recognize the possibility of a

*The hearing referred to was, to say the least, a half-hearted

effort to determine whether a conflict existed. All the ramifications

of Mr. Siegel's conflicts were not fully examined. Certainly, there

was no affirmative showing that the “waiver” was intelligent and

voluntary and done with sufficient awareness of the relevant

circumstances and likely consequences. See Boykin v. Alabama,

395 U.S. 238 (1969); Brady u United States, 397 U.S. 742, 748

(1970). (A. 25-26).

16

disqualifying conflict of interest. Any doubt

as to whether the court should have been aware

of the problem is dispelled by the fact that the

state raised the conflict problem explicitly and

requested that the court look into it.

Because the Court, in the instant case, did not “look

into it” sufficiently, Petitioners were deprived of their

constitutionally guaranteed right to due process of law

and as such are entitled to a reversal of their conviction.

See, Wood v. Georgia, supra, at 1104 n. 18, n. 21, Cuyler

v. Sullivan, supra.

3. PETITIONER DAVID HOROWITZ WAS DENIED

DUE PROCESS OF LAW AND EFFECTIVE

ASSISTANCE OF COUNSEL BECAUSE HE WAS

REPRESENTED AT TRIAL BY THE SAME

ATTORNEYS WHO REPRESENTED THE

CO-DEFENDANT IN THE CASE.

Bernard Horowitz and David Horowitz, the only

two persons to be tried on these charges, are father

and son, respectively. Neither Horowitz testified in his

own defense and the record indicates that both Horowitzes

were treated as one entity by counsel.’ The claim that

the two Horowitzes had conflicting interests and should

have had separate counsel is underscored by David's

acquittal in a subsequent case brought in the United

*Counsel continously referred to a “Mr. Horowitz” never

mentioning first names. In speaking of a bank account of a “Mr.

Horowitz”, which was used to deposit the proceeds of some of the

land sales, counsel neglected to point out which Mr. Horowitz had

authority to sign on the account. It was Bernard, not David. (A.

11).

17

States District Court for the Southern District of Florida.

That case was based on the identical facts which resulted

in the State Court conviction. Bernard Horowitz was

not tried with his son in the Federal trial. (A. 37).

At the threshold, we recognize that “[rjequiring or

permitting a single attorney to represent

co-defendants . . is not per se violative of constitutional

guarantees of effective assistance of counsel.” Holloway

v. Arkansas, 435 U.S. 475, 482 (1978). This Court, in

Holloway, supra, recognized the inherent constitutional

infirmities in joint representation.” However, dual or

joint representation of defendants should raise a question

by the court or by counsel of a possible conflict of

interest. Holloway, supra, at 483, n. 6. See also, Glasser

v. United States, 315 U.S. 60 (1942)." In Holloway and

“The Court also posited that an infraction of the constitutional

rights to counsel “can never be treated as harmless error.” Holloway

v. Arkansas, 435 U.S. 475 (1978).

The American Bar Association, in its STANDARDS RELATING

To THE ADMINISTRATION OF CRIMINAL JUSTICE, THE DEFENSE

FUNCTION, §3.5(b) (1974), states:

Except for preliminary matters such as initial hearings

or applications for bail, a lawyer or lawyers who are

associated in practice should not undertake to defend

more than one defendant in the same criminal case if the

duty to one of the defendants may conflict with the duty

to another. The potential for conflict of interest in

representing multiple defendants is so grave that ordinarily a

lawyer should decline to act for more than one of several

co-defendants except in unusual situations when, after

careful investigation, it is clear that no conflict is likely

to develop and when the several defendants give an

informed consent to such multiple representation.

18

Glasser, counsel recognized, and brought to the Court’s

attention, the potential conflict of interest between the

defendants. In David Horowitz's case, it was counsel

for the State who raised the spectre of conflict, while

defense counsel remained adamant that there was no

such conflict.“ (A. 16).

In Cuyler v. Sullivan, 446 U.S. 335 (1980), this

Court addressed the question of conflict of interest

between defendants represented by the same attorneys

when no objection to that representation is made. In

Cuyler, two attorneys were privately retained to represent

three defendants charged with murder. Two of the

defendants were acquitted in separate trials while

Sullivan, the third defendant, was convicted. This Court

refused to impose a duty upon Sullivan's trial judge to

inquire about a conflict of interest where there is joint

representation of defendants, since nothing in the

circumstances of the case, including the lack of an

objection, required such an inquiry.

Absent special circumstances . . . trial courts

may assume either that multiple representation

entails no conflict or that the lawyer and his

clients knowingly accept such risk of conflict

as may exist. Indeed, as the court noted in

Holloway, supra, .. trial courts necessarily

rely in large measure upon the good faith and

good judgment of defense counsel . . . unless

the trial court knows or reasonably should

"It is possible that Horowitz's counsel confused conflict of

interest between (1) the defendants and (2) defense counsel and

some of the State’s witnesses whom counsel had previously

represented.

19

know that a particular conflict exists, the court

need not initiate an inquiry. Cuyler, supra, at

347. [Citations omitted].

The prosecutor's remarks to the Court, discussed

supra, page 15, presented the Court with the “special

circumstances” referred to in Cuyler. Once the conflict

of interest between the Horowitzes was recognized,

the issue is whether the conflict “adversely affected

his lawyer's performance.” Cuyler, supra, at 350. Here,

counsel for the Horowitzes rarely, if ever, distinguished

the two defendants by name. (A. 11); refused or neglected

to separate the Horowitzes when certain possibly

incriminating evidence was introduced—such as the

bank account, (A. 11); and never sought to define the

roles that father, Bernard, and son, David, played in

the structure of the companies which the State claimed

were used to bilk unsuspecting investors. When tried

in Federal Court (with different counsel), these points,

which should have been obvious to defense counsel,

were raised to successfully defend David Horowitz. (A.

37-39). That they may have been raised to the detriment

of his father, Bernard, emphasizes the need for separate,

independent counsel for the Horowitzes:

Joint representation of conflicting interests is

suspect because of what it tends to prevent

the attorney from doing... The evil. .. is in

what the advocate finds himself compelled to

refrain from doing, not only at trial, but also

as to possible pretrial! plea negotiations and in

the sentencing process. Holloway, supra, at

489, 490 [Emphasis in original].

"See also, Zuck u Alabama, 588 F.2d 436 (5th Cir.), cert.

denied, 444 U.S. 833 (1979); United States v. Martinez, 630 F.2d 361

(5th Cir. 1980), and Johnson v. Hopper, 639 F.2d 236 (5th Cir. 1981).

In Martinez, supra, at 362, the rule in the Fifth Circuit applicable

to conflict of interest was stated:

If a criminal defendant is represented at trial by an

attorney, either appointed or retained, who labors under

an actual, and not merely a potential, conflict of interest,

the defendant has been denied effective assistance of

counsel as a matter of law; and, unless he has knowingly

and intelligently waived his Sixth Amendment right to

conflict-free representation, reversal is automatic. No

prejudice need be shown.

CONCLUSION

We respectfully urge the Court, for all the reasons

set forth above, to grant a Writ of Certiorari and to

reverse the decision below.

Respectfully submitted,

MICHAEL TARRE, ESQ.

25 West Flagler Street

Suite 733

Miami, Florida 33130

Telephone: (305) 377-8155

(Counsel for Petitioner

David Horowitz)

JOEL HIRSCHHORN, ESQ.

By: Joel Hirschhorn, P.A.

742 Northwest 12th Avenue

Miami, Florida 33136

Telephone: (305) 324-5320

(Counsel for Petitioner

Bernard H. Horowitz)

Appendix

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA FOURTH DISTRICT

JANUARY TERM 1981

BERNARD H. HOROWITZ,

Appellant,

u

STATE OF FLORIDA.

Appellee.

CASE NO. 78-2541

DAVID HOROWITZ,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

CASE NO. 78-2542.

Decision filed May 6, 1981

Consolidated appeals from the Circuit Court for Broward

County; Robert A. Butterworth, Judge.

Joel Hirschhorn, Miami, for appellant — Bernard Horowitz.

William O'Neill, III, of Eidelstein and O'Neill, Miami

Beach, for appellant — David Horowitz.

App. 1

Michael Satz, State Attorney, Ft. Lauderdale, Mary E.

Marsden, Special Assistant State Attorney, Miami, and

Walter W. Wood, Special Assistant State Attorney,

Tallahassee, for appellee.

PER CURIAM.

AFFIRMED.

BERANEK and HERSEY, JJ., and WARREN, LAMAR

(Associate Judge), concur.

App. 2

IN THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA FOURTH DISTRICT

CASE NO. 78-2541 and 78-2542.

BERNARD H. HORWITZ,

and DAVID HOROWITZ,

Appellant,

u

STATE OF FLORIDA.

Appellee.

June 10, 1981

BY ORDER OF THE COURT:

ORDERED that the May 19, 1981 Motion for

Rehearing filed by Appellant, David Horowitz, is hereby

denied; further

ORDERED that the May 19, 1981 Motion for

Rehearing filed by Appellant, Bernard H. Horowitz, is

hereby denied.

I hereby certify the foregoing is a true copy of the

original court order.

/ Clyde L. Heath,

CLYDE L. HEATH,

CLERK

App. 3

ee: Joel Mirschhorn, Esq.

William O'Neil, III. Esq.

Walter W. Wood and Mary E. Marsden,

Special Assistant State Attorney

Michael Satz, State Attorney (17th)

App. 4

IN THE COUNTY COURT IN AND

FOR BROWARD COUNTY, FLORIDA

Case No. 77-3948CF-A & B

Judge: Butterworth

STATE OF FLORIDA,

Plaintiff,

vs.

BERNARD H. HOROWITZ, et al.

Defendant(s).

SUPPLEMENTAL LIST OF PERSONS WHO HAVE

INFORMATION WHICH MAY BE

RELEVANT TO THE OFFENSE CHARGED

COMES NOW, the State of Florida by and through

its undersigned Assistant to the State Attorney and

responding to that certain Motion for Discovery on file

herein, submits the following.

James S. Mofsky,

Law & Economics Center

University of Miami Law School

P.O. Box 248000

Coral Gabies, Florida 33124

Albert G. Siegel,

223 Ist Street

Miami Beach, Florida 33139

App. 5

Mary Cardani,

9153 Fountain Bleau Blvd.

Miami, Florida

Lester Green,

190 NE 211th Street

Miami, Florida

Joseph R. Klinger,

Senior Commercial Officer

(or designated alternate)

First Pennsylvania Banking & Trust Co.

1500 Market Street

Philadelphia, Pennsylvania 19101

I HEREBY CERTIFY that a true copy hereof has

been furnished by mail this 17th day of May, 1978 to

Ben Cohen, 420 Lincoln Road-Penthouse, Miami Beach,

Florida, and J. Jerry Zeltzer, Suite 238, 420 Lincoln

Road, Miami Beach, Florida 33139.

MICHAEL J. SATZ

State Attorney

Walter W. Wood

Assistant to the State Attorney

App. 6

IN THE CIRCUIT COURT IN AND FOR

BROWARD COUNTY, FLORIDA

CASE NO. 77-3948 (B, C, D and E)

JUDGE: BUTTERWORTH

STATE OF FLORIDA,

Plaintiff,

vs.

BERNARD H. HOROWITZ, et al.

Defendants.

NOTICE OF APPEARANCE

COMES NOW the undersigned attorney and notices

his appearance as co-counsel for the Defendants,

BERNARD H. HOROWITZ and DAVID J. HOROWITZ.

Law Office of Ben Cohen

Co-counsel for

BERNARD H. HOROWITZ

DAVID J. HOROWITZ

420 Lincoln Road-Penthouse

531-3403

Miami Beach, Florida 33139

BY: /s/ Ben Cohen

BEN COHEN

App. 7

I HEREBY CERTIFY that a true and correct copy

of the foregoing Notice of Appearance was mailed to

WALTER W. WOOD, Esq., Assistant State Attorney

Broward County Courthouse, 201 SE. Sixth Street,

Room 620, Ft. Lauderdale, Fla. 33301, ROBERT G.

SEEGEL, 223 First Street, Miami Beach, Fla., JOEL

HIRSCHHORN, Esq., HIRSCHHORN & FREEMAN,

P.A., 742 NW 12th Avenue, Miami Fla. 33136, and to J.

JERRY ZELTZER, Esq., Suite 238, 420 Lincoln Road,

Miami Beach, Fla. on this 11th Day of May, 1978.

s / Ben Cohen

BEN COHEN

App. 8

[31-32] MR. JOLLY: Who is going to be arguing

the motions?

MR. COHEN: I made it very clear I am

representing Mr. Bernard Horowitz. He [Mr. Seigel] is

representing David, and I am representing Bernard. I

have said that before, and I guess he won't remember

it until we come back up again.

[153-154] THE COURT: Are both of you

representing them independently?

MR. COHEN: That’s right. If Mr. Siegel has to

leave, I will take over for him.

If we can ever keep Mr. Jolly still for five minutes

at a time, we will get along with this case.

THE COURT: I don't think I can allow an attorney

representing a client to leave during the proceedings.

If you have to go, Mr. Siegel

MR. COHEN: That will be up to Al.

THE COURT: If he is the leading attorney on

one of the clients, there is no way I can let him leave.

MR. SIEGEL: I am listening to all of this, and of

course, what amazes me the most is I have never really

seen this before where the prosecuting attorney takes

over the court. That is exactly what has been happening

throughout here. I have told the Court exactly what

my position is. I made it very plain. I did this on the

App. 9

demands of Mr. Jolly. I responded to it. I told the Court

yesterday — Does the Court wish me to reiterate my

position?

THE COURT: The Court basically does have a

problem as to what you're doing. If you plan on leaving

sometime during the trial, that is your choice.

Mk. COHEN: I will represent both of them and

Mr. Siegel will assist me when he is here. Is that what

it is, Mr. Siegel?

MR. SIEGEL: Mr. Cohen is the lead cou el, and

whatever Mr. Cohen is representing to the Court at

this time, I am abiding hy it.

THE COURT: Would you put a paper clip on

that? That Mr. Cohen is the lead attorney? Therefore, I

know there will only be one opening and one closing.

Right? One attorney makes objections; right, in front

of the jury, unless you both argue out of the hearing of

the jury.

MR. COHEN: I will represent both of them.

MR. SIEGEL: Mr. Cohen is on the record as

representing Mr. Bernard and David Horowitz.

THE COURT: Therefore, you are free to leave

anytime you wish. Any other matters, Mr. Jolly, you

would like to bring up before the jury comes back in?

MR. JOLLY: No. I am satisfied.

App. 10

[365] Q All right. Now, and what names were

required in order to pay the investors, if you know,

from the Miami National Bank? Could Mr. Horowitz do

it himself?

A I don't recall. I have seen checks, and I didn't

pay that much attention to it, to tell you the truth.

Q Well, were you informed that this was a joint

account from which Rinehart’s organization and Mr.

Horowitz had to both sign in order to pay these to the

investors?

A That would make sense, but I just told you I

don’t recall any of the signatures that were on it.

{Emphasis added]

* * *

1074 Q (By Mr. Jolly) As a result of your

information, what did you do?

A I came down to Florida to try to find out what

was going on.

Q At any time during those two days, did you

have conversations with the defendant, Bernard Horowitz,

regarding releases?

A Yes.

App. 11

Q What did you say, and what did he say?

MR. COHEN: Is that in regard to releases, if the

Court please? That's all I want to know.

THE COURT: It appears to be.

Q (By Mr. Jolly) Well, it was the question.

What was the conversation that you had with

Bernard Horowitz?

A It varied. The one conversation was where he

requested my assistance in the paying off—in obtaining

1200 releases.

Q And what did you say?

A For what purposes?

Q What did he say?

A It was in relation to the State action against

Equitable Development Corporation.

MR. COHEN: May it please the Court, we will

have to go into this.

2 = *

11084] THE COURT: Mr. Jolly, you may proceed.

Q (By Mr. Jolly) What was said in this conversation,

if you recall?

App. 12

A The request of the 1200 releases was made. I

asked why, and the response by the attorney was —

MR. COHEN: We will object to any response by

any attorney.

THE COURT: Sustain the objection.

Q (By Mr. Jolly) Who else was present during

the conversation?

A Bernard Horowitz, David Horowitz, Richard

Friedman and the attorney representing Mr. Horowitz

to the State proceedings.

Q Was anyone told to do anything?

A I was asked to obtain the 1200 releases.

Q Was there any further conversation?

A Yes.

MR. COHEN: Shall I ask with whom the

conversation was with?

Q (By Mr. Jolly) What did you say and to whom

did you direct it?

A I directed it to Bernard Horowitz. I said I

could not see how the releases of the 1200 lots, at this

time, would avoid the crime which I saw.

App. 13

MR. COHEN: I object to that.

* * *

11113] THE COURT: The Court is concerned with

the comment that the crime had been committed. The

Court finds that is not mistriable, as a matter of law,

but I think as it stands now, I have to give them an

instruction.

MR. JOLLY: Your Honor, they have been back

there, and we haven't gotten the rest of the testimony

out. They haven't heard all of the testimony.

THE COURT: I think even with the rest of the

testimony out, we have to tell them that despite the

fact that he thought the crime was committed, it is not

binding on them at all. They are the ones that determine

the guilt or innocence.

11117 THE COURT: We are going to send the

jury home a little bit early today. I want to give you an

instruction before you leave.

The jury, you people on the jury, are the only ones

that are to determine guilt or innocence of the defendants

from the facts and the law as given to you by the Court

at the close of the trial. The fact that a witness may or

may not have believed a crime was committed is to be

ignored and disregarded by the jury because you are

the ones to determine whether or not a crime has been

committed. Okay?

App. 14

Now, has anyone seen anything in the papers about

this case? TV? Spoke with anyone about the case?

Okay. See you at 1:00 o’clock tomorrow.

[1159-1160] MR. COHEN: One more thing, Your

Honor. Mr. Jolly, I am sure you are going to go (indicating),

but I am not acquainted with all of the facts in the

operation of the original deal with Delstar, although I

am going to attempt to at cross examination. I would

like to have Mr. Siegel, who is eminently acquainted —

not to repeat any of the questions of what I may ask—

but I would like to have him have the right to finish up

on the parts that I don’t have the knowledge of. I don’t

have all of that knowledge, as you can understand from

hearing the evidence from the stand. This one particular

witness is all I am asking that Mr. Siegel be allowed to

take over where I leave off.

THE COURT: State?

MR. JOLLY: That is an obvious objection, Your

Honor. Mr Siegel is here solely as an assistant. J have

already made known to the Court the inherent conflict

of interest that is involved in this case. This would just

further that. This would just cause problems and not

alleviate any problems. Mr. Cohen is an attorney of

record. He is the attorney that the two men hired—I

am assuming hired - to act as their counsel, and I have

an objection.

[Emphasis added]

App. 15

11164] THE COURT: I think we all agree that

the possibility of a conflict of interest is there because

you represented Mr. Green. Mr. Green will be testifying

here against the Horowitzes.

MR. COHEN: He has not testified here.

THE COURT: But the Horowitzes were here

during the full hearing we had on this the first day

before the trial started. We have fully apprised them of

what the conflict is and they have waived that.

MR. SIEGEL: Has the Court heard one word of

testimony from Lester Green?

THE COURT: The Court does not see a conflict

of interest at the present time.

MR. COHEN: You will order the State’s Attorney

Assistant State’s Attorney to stop this accusing him of

a conflict of interest until such time as it appears to the

Court that there is such?

THE COURT: The State shall be so instructed.

Mr. Jolly, you shall conduct yourself accordingly. Until

a conflict is shown, you will not accuse Mr. Siegel of a

conflict of interest.

* * *

[1168-1169] Did the topic of releases come up?

A Les, sir.

App. 16

MR. COHEN: We object, if the Court please. He

is leading the witness.

THE COURT: Sustain the objection.

Q (By Mr. Jolly) Tell this jury what you asked

Bernard Horowitz and what, if anything, he responded.

A I asked him again about the mortgage program

that —“What is the real problem?” At that time, I was

advised that he needed the 1200 releases. That is the

first time I gained information to the magnitude of the

mortgage program upon which I was requested for the

releases. Mr. Bernard Horowitz was there and Richard

Friedman and the situation was, if I could relate it to

you, tense, and he asked me for the 1200 releases.

Who asked you?

A Bernard Horowitz.

Q What, if anything, did you say in response?

A I said, “For what?” He said, “Well, the problem

will kind of go away.” And I said, “What good would

this do, because the crime has already been committed.”

MR. COHEN: May it please the Court, that is

the same thing.

(Whereupon, the following proceedings were had

at the bench, out of the hearing of the jury:)

MR. COHEN: This man has absolutely no regard

App. 17

THE COURT: The Court ruled that was okay.

MR. COHEN: The same thing coming in again?

We are entitled to a mistrial after you have admonished

him. Now, he does the same thing again. You gave an

admonition to the jury.

11348 A Eugene Tannenbaum. T-a-n-n-e-n-b-a-u-m.

Q What is your present residence address?

A 6601 Southwest 76th Terrace, South Miami,

Florida.

Q What is your present occupation?

A I'm employed by a land development company.

Q Would you kindly tell the jury a little bit about

your background, Mr. Tannenbaum?

A Ihave an undergraduate degree in accounting

from the College of the City of New York. I have a

degree of law from the University of Miami. I was

admitted to practice in February, 1952, in Florida. I

practiced in Miami, Florida, until late 71, or early

72-1 don't recall the year at which time I had been

disbarred, and subsequently was convicted and served

some time for a felony.

Q Your conviction, sir, was for what?

App. 18

A At that period of time, ' was an officer of a

bank, and I was charged with use and undue influence

of obtaining a fraudulent loan—

MR. COHEN: Wait a minute. I object. Your Honor,

may we approach the bench?

11355 MR. JOLLY: I am not going into anything

further than, What have you been convicted of?”

THE COURT: Overrule the objection.

MR. COHEN: Judge, how can he bring it out and

we not? I don’t understand what rules of evidence we

are going by.

THE COURT: I am not ruling that he can or

can’t. I am not ruling that you can’t. I am not ruling on

that.

MR. COHEN: Well, the State admits that we

can’t do it, and to ask the man, if it is going to embarrass

him, I am sure he isn’t pleased with this type of testimony.

THE COURT: Do you mind answering these

questions to the State?

THE WITNESS: I have a reality of what I have

done exists. I don’t have an objection to it.

App. 19

[1758-1759] Q (By Mr. Jolly) Mr. Green, I guess we

have discussed the case formally two times. One occasion

was the day you were going to testify, if you were

going to testify; correct?

A Correct.

Q The first time was when we subpoenaed you

in?

A Yes.

Q Now, that first time, did you come to that

hearing with your lawyer? Did you come to that hearing

with that attorney?

A _ I came with a friend who happened to be an

attorney. :

Q Had that friend ever represented you in the

past?

A Yes, he did.

Q Was that friend present at the time that that

statement was initiated?

A At the beginning part.

Q That friend was Mr. Albert Siegel?

A That's correct.

Q Did he in fact not put on the record that you

must be receiving immunity before you would testify?

App. 20

A Yes.

Wasn't he acting as an attorney giving you

legal advice?

A Well, he was coming as my friend. He had told

me previously that after the State dropped the charges

against me, nolle prosequed the case, he couldn't be my

attorney any more, and that was settled at that point. I

did ask him to come as a friend to make sure that I was

given the immunity.

ln fact, you relied on his advice

A I don't know whether you would call it relying

on his advice or not. I would say so.

[2255-2256] MR. JOLLY: Ladies and gentlemen of

the jury, Your Honor, Mr. Cohen and Mr. Siegel. I will

be brief. You have heard it all. You have certainly

heard all of the evidence. There are a few points that I

wanted to raise; or a few points that need to be

explained by way of defense.

Now, one thing that comes up repeatedly, both Mr.

Siegel and Mr. Cohen mentioned that both the defendants

are in fact facing 105 years in prison and/or a $5,000.00

fine—a maximum penalty of a $5,000.00 fine. Now,

there is a minimum. They can walk out of here. This is

an instruction that Your Honor is going to read to you.

Now, almost simultaneously or immediately thereafter,

the Court is going tc instruct you that you are to

disregard the consequences of your verdict. In other

App. 21

words, the penalty, whatever it might be that they are

facing by virtue of this verdict, is not to be a factor in

your deliberations. Even if they were facing life, death,

or nothing, it is not a factor that shouldn't be a factor in

your determinations. You are the fact-finder in this

cause. You are going to decide whether or not they

committed a crime.

His Honor has been sitting on this bench a long

time. He has a pretty good idea what is fair or what is

not fair. He is going to be the sentencing agent; not you

people as jurors. Don’t worry about what is going to

happen to them afterward. That is not a part of your

verdict. You are to decide whether or not they are

guilty; whether they defrauded these people. You are

to decide if they are responsible for the financial loss

suffered by these individuals.

MR. COHEN: Objection. That is not the law.

THE COURT: The Court will instruct them on

the law at the end of the trial.

{Emphasis added]

[2268-69] “If your intention was good, Bernard

Horowitz and David Herowitz, why were not these

releases obtained back in January and February? If

your intentions were good —

MR. COHEN: May it please the Court, I have a

motion to make outside the hearing of the jury.

App. 22

(Whereupon, the requested portion of the record

was read by the reporter as above recorded.)

MR. COHEN: That is asking a question of the

defendants and again commenting on why they did not

take the stand.

May it please the Court, this is as direct as anything

can be, and asking them why they didn’t testify and

tell about it; asking them why, and says, “Why didn't

you do this at this time?”

THE COURT: Overrule the objection.

{Emphasis added]

[2271-2273] THE COURT: I think you might have

properly stated it the first time on your opening of the

closing. The Court is kind of concerned when you go

right to the defendants and point to them and say

“Why?” And then there is a silence because they never

answered on the stand what happened. There has to be

a silence after that.

MR. JOLLY: I will attempt to do it. Frankly, you

haven't said I did anything improper. You have told me

you don't like it. I will adjust my argument to what you

want.

MR. COHEN: You're not saying it is improper,

Judge?

App. 23

THE COURT: I am not. He hasn't even finished

the question.

MR.COHEN: You didn’t hear that question? You

didn’t hear this question completed when he said to

them —

MR. SIEGEL: What do you want? How can you

handle this? This is as blatantly wrong and Your Honor

knows that we do not have the right to put the defendants

on the stand at this point. He has put them on the

stand. Do we have a constitutional privilege of remaining

silent? He puts their back to the wall, puts them on the

stand and has violated their constitutional privilege of

remaining silent. He has forced our hand. He can’t do

it.

MR. COHEN: Your Honor, please. I know how

you want to get this case over. But Lord knows, we

have got to go by some rules at some time or another.

Believe me, I think for our own defendants we are

making a mistake, but I can’t, as a lawyer, allow anything

like that to take place, nor should Your Honor, as a

judge, allow it to take place. And the argument we

have it the second time now.

THE COURT: The Court does not believe what

he said originally was the same thing.

MR. COHEN: This was worse.

MR. JOLLY: I did not turn to the defendants and

the record shouldn't reflect that I did, because I did

not.

App. 24

MR. COHEN: For God's sake, the Court saw it. I

saw it. ;

THE COURT: This is final argument. The Court

does not believe this is mistriable at all. I believe Mr.

Jolly did not complete making the comment, and Mr.

Jolly may continue when the jury comes back in.

[Emphasis added]

* * *

[2278-2279] Now, what I am suggesting to you is

this: $2,800.00 was what was going to be paid back, in

excess of what was brought in and all the corporation

actually got was $2,050.00. That leaves $750.00 in the

hole. Now, this presupposes —this figure presupposes

that they intended — intended to never get the releases.

That was financially impossible. It was financially

unfeasible. They never could have, because they were

in the red. It never would have worked.

MR. COHEN: May it please the Court, that is

not in argument of anything that has appeared in the

case.

MR. JOLLY: This is in evidence.

[51-52] THE COURT: The Horowitzes have been

here all morning. You have heard what went on, /

guess, and you are aware that Mr. Siegel did represent

this Mr. Greene. He will be testifying, it appears, from

the State’s calling him against your interest. You may

App. 25

wish, if you want, to question Mr. Siegel further. He

assists Mr. Cohen on the case.

Bernard Horowitz?

BERNARD HOROWITZ: We would like him to

stay.

THE COURT: David Horowitz?

DAVID HOROWITZ: Yes.

[EMPHASIS ADDED]

App. 26

[2631]

(F) 517.302

IN THE CIRCUIT COURT OF THE SEVENTEENTH

JUDICIAL CIRCUIT IN AND FOR

BROWARD COUNTY, FLORIDA

THE STATE OF FLORIDA

VS.

EQUITABLE DEVELOPMENT CORPORATION, A

CORPORATION; BERNARD H. HOROWITZ a/k/a

BERNIF HOROWITZ; DAVID J. HOROWITZ a/k/a

DAVE HOROWITZ; MARY CARDANI; LESTER

GREEN; FINANCIAL RESOURCES CORPO-

RATION, A CORPORATION; ROBERT A.

RINEHART a/k/a BOB RINEHART

INFORMATION FOR

I. thru XXI. SALE OF

UNREGISTERED SECURITIES

XXII. thru XLII. SALE OF SECURITIES BY

UNREGISTERED DEALERS OR SALESMEN

XLIII. thru LXIII. FRAUDULENT SECURITIES

TRANSACTIONS

IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF FLORIDA:

App. 27

2650]

IN THE CIRCUIT COURT IN AND FOR

BROWARD COUNTY, FLORIDA

CASE NO. 77-3948CFB

STATE OF FLORIDA,

Plaintiff.

-vs-

BERNARD H. HOROWITZ a/k/a

BERNIE HOROWITZ,

Defendant.

ARRAIGNMENT

This case was called for arraignment before the

Honorable Judge REASBECK. The defendant was

present in open court with counsel, and entered a plea

of (stood mute and the court entered a plea of not

guilty).

The following persons were present:

Attorney of Record: Albert G. Siegel

and C. Shelby Dale

State Attorney: Walter Wood

Court Reporter: Blanche Gloetzner

The following documents were filed:

Appearance of Attorney

Motion to Reduce Bond

App. 28

The defendant be allowed 20 days in which to file

motions.

BY: /s/ [illegible]

Deputy Clerk

TRIAL DATE: 8-4-77 Docket Sounding

JUDGE: Lasher

App. 29

[2671] [Filed 17 SEP 19]

IN THE CIRCUIT COURT IN AND FOR

BROWARD COUNTY, FLORIDA

CASE NO. 77-3948 (B,C,D and E)

JUDGE: Lasher

STATE OF FLORIDA,

Plaintiff,

vs.

BERNARD H. HOROWITZ, DAVID J. HOROWITZ,

MARY CARDANI and LESTER GREEN,

Defendants.

MOTION FOR ADDITIONAL TIME TO

FILE MOTIONS

CuMES NOW the Defendants, BERNARD H.

HOROWITZ, DAVID J. HOROWITZ, MARY CARDANI

and LESTER GREEN, by and through the undersigned,

and move the Court to grant necessary time to file

additional pretrial motions, and, as grounds, say:

1. The complexity of the case, unknown facts

and unusual circumstances will probably make necessary

the filing of additional motions by the Defendants.

2. This request will not prejudice the State,

however, a denial would limit the Defendants in

App. 30

preparation of their defense as additional facts become

apparent.

I certify that a copy of the foregoing Motion has

been mailed to WALTER W. WOOD, Esq., Assistant

State Attorney, 201 S.E. 6th Street, Ft. Lauderdale,

Florida 33301, JOHN BERK, Ewq., 111 S. E. 6th Street,

Ft. Lauderdale, Florida, and JON AGEE, Esq., 1515

N.E. 4th Avenue, Ft. Lauderdale, Florida, this 16th day

of September, 1977.

/ Albert George Siegel

ALBERT GEORGE SIEGEL

Attorney for BERNARD H.

HOROWITZ,

DAVID J. HOROWITZ,

MARY CARDANI

and LESTER GREEN

223 First Street

Miami Beach, Florida 33139

531-2052

App. 31

2682]

IN THE CIRCUIT COURT, IN AND

FOR BROWARD COUNTY, FLORIDA

Judge HUMES T. LASHER

CASE NO. 77-3948-CF-B-C-D

CHARGES) 63 Counts — Securities

STATE OF FLORIDA

vs

BERNARD HOROWITZ (B)

and

DAVID J. HOROWITZ (C)

and

MARY CARDANI (D)

HEARING PROCEEDINGS

BOOK 331 PAGE 1475

This case was called for hearing on Defense Motion(s)

TO WITHDRAW. The Defendant was not present in

open Court with counsel, the Honorable Albert G. Siegel.

The prosecution was represented by the Honorable

Walter W. Wood. Court Reporter Helen Lehtinen, was

present.

The following witnesses were duly sworn and

testified in this case, to-wit:

App. 32

C. Shelby Dale, also present. Hearing on Motion

(Filed in Open Court) to Continue Hearings set for

October 13, 1977. Motion Granted, including Lester

Green —“E” Case.

After due consideration the Court

GRANTED the Motion TO WITHDRAW, AS TO

B, C“, “D” CASES ONLY.

BY: [illegible] D.C.

STATE OF FLORIDA, BROWARD COUNTY

This instrument filed for record

7th day October, 1977

and recorded in CIRCUIT COURT MINUTES

Book 331 Page 1475 Record Verified

ROBERT E. LOCKWOOD, CLERK

BY: [illegible] D.C.

App. 33

F.S. 90.09 Impeachment of witness by party

producing. —A party producing a witness shall not be

allowed to impeach his credit by general evidence of

bad character, but he may, in case the witness prove

adverse, contradict him by other evidence, or prove

that he has made at other times a statement inconsistent

proof can be given, the circumstances of the supposed

statement, sufficient to designate the particular occasion,

must be mentioned to the witness, and he must be

asked whether or not he made such statement.

“This statute was in effect at the time of trial. Repealed July

1, 1978.

App. 34

UNITED STATES CONSTITUTION

ARTICLE V

No person shall be held to answer for a capital, or

oti. rwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in

the land or naval forces, or in the militia, when in

actual service in time of war or public danger; nor shall

any person be subject for the same offense to be twice

put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for

public use without just compensation.

ARTICLE VI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to

have the assistance of counsel for his defense.

App. 35

ARTICLE XIV

SECTION 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

App. 36

[2937]

IN THE CIRCUIT COURT OF THE

SEVENTEENTH JUDICIAL CIRCUIT,

BROWARD COUNTY, FLORIDA

CASE NO. 77-3948-CF

(Judge Butterworth)

THE STATE OF FLORIDA,

Plaintiff,

v-

BERNARD H. HOROWITZ and

DAVID J. HOROWITZ

Defendants.

AFFIDAVIT

The undersigned being duly sworn deposes and

says:

1. That he has personal knowledge of the facts

contained herein.

2. That he is an attorney, a member of the Florida

Bar specializing in Criminal Law, with over ten (10)

years experience representing numerous defendants

in numerous jury trials in both State and Federal Courts

in South Florida.

3. That he represented Robert Rinehart in

UNITED STATES -v- BERNARD HOROWITZ, DAVID

App. 37

HOROWITZ, ROBERT RINEHART et al, Case No.

78-49-CR-JE, which case was tried to a jury in the

United States District Court for the Southern District

of Florida, in August 1978.

4. That the issues in the federal trial were

essentially the same as in the within case, i.e. the sale

of Equitable Development Corp. promissory notes secured

by real estate mortgages, the latter being fraudulently

misrepresented to investors as first mortgages when

in fact they were second mortgages, due to a prior

purchase money mortgage to Delstar Corp.

5. That during the course of the federal trial

Eugene Tannenbaum, an employee of Equitable

Development Corp. in 1974 and 1975, testified to certain

conversations with DAVID HOROWITZ concerning

attempts by DAVID HOROWITZ to set up a systematic

release procedure for lots used in the program,

which attempts were thwarted by BERNARD

HOROWITZ, DAVID HOROWITZ’s father and

co-defendant.

6. That Mr. Tannenbaum along with several other

witnesses testified that BERNARD HOROWITZ

controlled the policies of Equitable, that BERNARD

HOROWITZ was the Equitable signatory on the joint

bank account into which all the mortgage investors

money was placed, and that BERNARD HOROWITZ

received some SEVEN HUNDRED THOUSAND and

00/100 ($700,000.00) DOLLARS from Equitable in the

form of officer loans, payments by Equitable of persona!

expenses and direct payments charged to finders fees

and to other corporate expense categories.

App. 38

[2938] 7. That the primary thrust of his defense

for Robert Rinehart was that BERNARD HOROWITZ

had used and duped Mr. Rinehart, along with many

others, and in summation he utilized that argument

repeatedly, including in the group of persons used and

duped by BERNARD HOROWITZ, not only Defendant

Robert Rinehart, but Defendant DAVID HOROWITZ

and Defendant Robert Hunter as well.

8. That in his opinion DAVID HOROWITZ’s best

defense was the above argument, and the single most

important piece of evidence adduced in the federal

trial in support of said argument was the “thwarting”

testimony referred to above.

9. That this opinion is based on his years of

experience dealing with juries in criminal cases, and is

supported by the fact that the jury in the federal case

found Defendant DAVID HOROWITZ not guilty on all

counts.

FURTHER AFFIANT SAYETH NOT

s / Joel Hirschhorn

JOEL HIRSCHHORN

Sworn to and subscribed before me this Ist day of

Sept, 1978. My Commission expires:

/ {illegible signature]

Notary Public State

of Florida at Large

App. 39