Petition for Writ of Certiorari — Onett v. Florida Bar

Supreme Court, U.S.

87-961 : FILED

JUL 141987

JOSEPH F. SPANIOL, JR.

gx CLERK

NO.

in the

Supreme Court

of the

United States

OCTOBER TERM, 1986

GEORGE L. ONETT,

Petitioner,

US.

THE FLORIDA BAR,

Respondent.

PETITION FOR A WRIT OF

CERTIORARI TO THE

SUPREME COURT OF FLORIDA

SHALLE STEPHEN FINE

(Counsel of Record)

46 S. W. First Street

Miami, Florida 33130

305/358-1515

Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

1

IT WAS A DENIAL OF FUNDAMENTAL

DUE PROCESS TO REFUSE THE PETI-

TIONER’S APPLICATION FOR SUBPOE-

NAES AND TO DENY HIM THE RIGHT TO

COMPULSORY PROCESS AND THE

PRESENTATION OF WITNESSES.

PARTIES TO THE PROCEEDING

All parties to the proceeding are named in the title

of the case.

ii

od

TABLE OF CONTENTS AND

TABLE OF AUTHORITIES

Page

QUESTIONS PRESENTED FOR REVIEW:

IT WAS A DENIAL OF FUNDAMENTAL

DUE PROCESS TO REFUSE THE

PETITIONER’S APPLICATION FOR

SUBPOENAS AND TO DENY HIM THE

RIGHT TO COMPULSORY PROCESS AND

THE PRESENTATION OF WITNESSES .. i

PARTIES TO-THE PROCEEDING........... il

TABLE OF CONTENTS AND

TABLE OF AUTHORITINES................. iii

og ER 8 6s yr Vv

GROUNDS ON WHICH JURISDICTION

en ds abe ieie sap so 000 62 vi

CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS........... vil

STATEMENT OF THE CASE............... 1

ES 10

ili

. Page

CITATIONS

Accardi us. Shaughnessy,

347 U. S. 260 74 S. Ct. 499,

ee Re ee I cs a ec cce keene o 10

Drogaise vs. Martine’s Incorporated,

118 So. 2d 95 (1 DCA Fla. 1960).......... 10

Florida Bar vs. Quick,

5. g Ff Me. | Sara enaen ere: 10

Re Ruffalo,

390 U. S. 544, 88 S. Ct. 1222,

oe Se Regt. | ar eS

Service us. Dulles,

362 U. 8S. 363, T7 3. Ct. 1152,

ee Ge 6 Ly a errr 10

State Ex Rel Florida Bar vs. Evans,

' % & by RS: y ) rere 11

United States of America vs. George L. Onett,

EE SE EE 5 ek oo bak oo Ae een ele was 3

STATUTES

28 United States Code, §1257 (3) ............ vi

iv

OFFICIAL REPORTS

The Florida Bar vs. George Onett, 504 So. 2d 388

(Fla. 1987)

GROUNDS ON WHICH JURISDICTION

IS INVOKED

The opinion of the Supreme Court of Florida herein

sought to be reviewed was entered February 26, 1987.

A timely filed Petition for Rehearing was denied by

order entered April 15, 1987.

The statutory provision believed to confer on this

court jurisdiction to review the judgment and opinion

in question by Writ of Certiorari is 28 United States

Code, §1257 (3)

vi

enorme. =

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS

1) Constitution of the United States, Article XIV,

§1. 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 equal

protection of the laws.

Pertinent portions of the Florida Bar integration

rule are quoted in the Statement of the Case and

Argument as appropriate.

vii

STATEMENT OF THE CASE

This cause comes to this court on the Petition of

George L. Onett for review of a judgment disbarring him

entered in the Supreme Court of Florida. (Appendix 1

et seq.; further references in this Petition to the

appendix hereto will be made by use of the symbol “‘A”’

with appropriate page number.)

The parties will be referred to herein by proper name

or by standing here or below as appropriate.

The Petitioner, George L. Onett, was admitted to the

Florida Bar on November 4, 1966. He had never been

disciplined by the Bar prior to the instant case.

The Florida Bar is an integrated Bar created by the

Supreme Court of Florida under an integration rule

promulgated by the Supreme Court. The Preamble to

the integration rule specifically states in pertinent part:

“. . . the following principles are expressly

adopted by this court:

(a) The Florida Bar, a body created by and

existing under the authority of this court, is

charged with the maintenance of the highest

standards and obligations of the profession of

law, and to that end is vested by this court, in

the exercise of its inherent powers over the

Florida Bar as an official arm of this court, with

the necessary powers and authority. . .

(d) This court has the inherent power and

duty ... to determine what constitutes

grounds for discipline of lawyers, to discipline

for cause attorneys admitted to practice law in

Florida, and to revoke the license of every

lawyer whose unfitness to practice law has

been duly established.”

The exclusive jurisdiction of the Supreme Court over

discipline of persons admitted to the practice of law is

administered pursuant to Article XI of the integration

rule. Pursuant to Article XI, the Florida Bar commenced

the proceedings under review here by filing a complaint

against Petitioner Onett in the Supreme Court of

Florida. Under the integration rule, disciplinary

proceedings such as this are original proceedings in the

Supreme Court of Florida.

That complaint (A. 6 et seq.; amendment A. 10)

charged that Onett:

a) Sought to extort $15,000.00 from a Jacksonville,

Florida restauranter in connection with the

restauranter’s efforts to obtain a liquor license for his

restaurant; and

b) Sought to defraud the citizens of the State of

Florida, the Department of Business Regulation and the

Division of Alcoholic Beverages and Tobacco with regard

to their review and approval of the restauranter’s liquor

license application by concealing relevant information;

and

c) Perjured himself before a Federal Grand Jury;

and

d) Asa result of the foregoing was convicted of six

felony counts by the United States District Court for

the Middle District of Florida.

The Supreme Court of Florida appointed a referee

to hear the matter and pursuant to notice, the matter

was brought on for hearing.

The Bar produced no live witnesses in its main case.

It introduced three exhibits and rested. Exhibit No. 1

was a copy of the indictment against the Respondent

in the United States District Court for the Middle

District of Florida. Exhibit 2 was a certified copy of the

judgment and commitment order in the United States

District Court In and For The Middle District of Florida

evidencing Mr. Onett’s conviction on several criminal

charges. Exhibit 3 was a copy of the initial appeal in

the criminal case, United States of America vs. George

L. Onett, 725 F.2d 1561 where the Eleventh Circuit

affirmed the conviction.

Mr. Onett called as his witness Charles L. Nuzum

who testified that immediately prior to his retirement

he was director of the Division of Alcoholic Beverages

and Tobacco of the State of Florida. Prior to that time

he was special agent for the Federal Bureau of

Investigation for 22 years and at the time he retired

from the Bureau he was deputy chief of the white collar

crime section of the general investigative division at FBI

Headquarters in Wshington. In the Beverage

Department, the only person he reported to was Richard

Burroughs, the head of the Department of Business

Regulation. It was Mr. Nuzum’s duty to pass on

applications for liquor licenses where there was a

problem. Mr. Nuzum’s approval or disapproval was final

administrative action subject only to appeal to the

courts. Mr. Nuzum, when he took his post with the State

of Florida, took an oath of office and was an officer of

the State of Florida.

Mr. Nuzum, in 1979 or 1980, was made aware of a

liquor license application for a place called Abbott’s

Restaurant in Jacksonville, Florida. It was brought to

his attention by his chief of licensing. The problem was

that an application had been made for Abbott’s

Restaurant by Mrs. Peter Abbott, and the problem

which they envisioned was that Mr. Peter Abbott should

be on the application too.

Mr. Nuzum then had a visit from Michael Collins,

an agent with the Federal Bureau of Investigation, and

they discussed Abbott’s Restaurant. Collins told Nuzum

that the Bureau was conducting a sting operation at

Abbott’s Restaurant, that the investigation then dealt

with alleged corruption in public life and among public

officials in the Jacksonville area. He further told Nuzum

that there was electronic surveillance and other

technical surveillance at the Abbott’s Restaurant and

that information had been obtained that there would

be an effort made to obtain a liquor license, a special

restaurant license for Abbott’s Restaurant through

influence of some nature with the Department of

Business Regulation. Mr. Collins told Mr. Nuzum that

Mr. Abbott was a convicted felon and that Abbott was

not actually his correct name but a name given to him

under the witness protection program and he showed

Mr. Nuzum a copy of Abbott’s rap sheet.

sienna

Subsequent to this, Mr. Nuzum was visited by Mr.

Onett. Mr. Nuzum told Mr. Onett that Mr. Abbott would

have to be on the application. There was some discussion

as to whether Abbott should be on the application and

by the end of the meeting, Onett told Nuzum that Abbott

would be disclosed.

The application was then amended at Mr. Onett’s

instance to include Peter Abbott as an accommodation

endorser and Mr. Nuzum testified that after the

amendment, the man was obviously an applicant within

every sense of the word. Mr. Nuzum’s legal counsel

reviewed the amended application for Mr. Nuzum and

told him that Abbott was an applicant and an interested

party.

Abbott was then fingerprinted and his fingerprint

card was processed through the FBI. When Abbott’s

fingerprint card was returned to the Bureau, there was

no record because Abbott was under the witness

protection program.

Nuzum testified that from the time Onett put Abbott

on the application, Nuzum was in a position to deny the

liquor license on the basis that Abbott was a convicted

felon which he knew from his conversation with Collins.

Nuzum did not do this because he was accommodating

the FBI. No improper influence was exerted or

attempted to be exerted on Nuzum by Onett.

Onett had asked in writing that subpoenaes be

issued by the referee (A. 28 et seq.). One of the

subpoenaes to Mr. Nuzum was in fact issued and Mr.

Nuzum testified. The other subpoenaes where to be

directed—one to the Honorable John Rawls and the

other to Honorable John Moore, the Federal District

Judge who presided over Respondent’s non-jury trial.

The court refused to issue this process and renewed his

ruling at hearing (A. 44.).

Onett, through counsel, then proffered (A. 35 et seq.).

The substance of the proffer was that Judge Rawls

was general counsel and custodian of the records of the

Florida Judicial Qualifications Commission, an agency

established under the Florida Constitution to review the

conduct of judicial officers and, if necessary, to discipline

them. Judge Rawls’ testimony and the records of that

commission would reflect that Judge Moore, the trial

judge who tried and convicted Mr. Onett in a non-jury

trial, had been the chairman of the Florida Judicial

Qualifications Commission prior to his ascent to the

federal bench. Those records would also reflect that

Judge Moore had pre-trial contact with the FBI

investigation which produced Mr. Onett’s indictment.

This contact, as reflected in those records, would have

been sufficient under the present federal recusal statute

to make it appear to a reasonable man that Judge Moore

could not have been impartial in Onett’s trial, even if

the case were tried with a jury and was not tried non-

jury. Onett further proferred that Judge Moore, in a

chambers conference held in his chambers on July 12,

1983, had indicated that he had some peripheral contact

with the investigation and he also indicated that he had

totally forgotten about it and at the trial of Onett, he

did not have time to think about the past because of the

pressure of his cases. Onett further proferred that Judge

Moore would, if he had the opportunity to review Judge

Rawls’ evidence and the documents of the Judicial

Qualifications Commission concede candidly that he did

TOF

not meet the standard of the recusal statute. Of course,

upon this admission, the conviction would have to be '

voided.

\

Mr. Onett took the stand and testified that he had

not offered anyone anything improper in connection

with the Abbott license application and further, there

was never any evidence adduced at trial before Judge

Moore that he had made such an offer. He testified that

he had received a $7,500.00 fee for his participation in

the license application as a lawyer and that fee was

reported on his federal income tax return and income

tax was paid on that fee and it was not divided with

anyone for any reason in any way, shape or form. Mr.

Onett testified that he did not know that Peter Abbott

was a convicted felon at the time of the amended

application which Onett procured after talking with

Nuzum.

In fact, at the time the amended application was

filed, Mr. Onett had never met Peter Abbott or Mrs.

Abbott. He was hired by another lawyer (who was

representing the Abbotts) through a telephone

conversation. He never met Peter Abbott until three

months after the amended application was filed and

never met Jean Abbott, Peter’s wife. He never had any

financial interest in Abbott’s Restaurant or the liquor

license except as a lawyer.

The referee filed a report (A. 15 et seq.) which is

essentially a bare bones report which tracks the

complaint word for word and recommends disbarment.

Onett petitioned for review of the referee’s report

by the Supreme Court of Florida (A. 22).

Briefs were submitted by Onett and by the Bar and

Onett requested oral argument. Notwithstanding this,

and notwithstanding that the integration rule provides

for oral argument in terms as follows:

“Rule 11.09: Review by Supreme Court (3Xd)

Oral Argument. Requests for oral argument

shall be filed in every case wherein a petition

for review is filed at the time of filing the first

brief. If no request is filed, the case will be

disposed of without oral agreement unless the

court orders otherwise.”

Notwithstanding the request for oral argument, at

the direction of the chief justice, the case was submitted

to the court without oral argument (A. 24).

The court rendered the opinion to which certiorari

is here sought (A. 1 et seq.). A timely filed Petition for

Rehearing (A. 25 et seq.) was denied (A. 5) and this

Petition follows:

In his Answer and Affirmative Defenses to the

Complaint filed before the referee (A. 12 et seq.) your

Petitioner raises the validity of his conviction by saying:

“2. . . . but denies that he has been validly

convicted thereof. Answering the third

sentence thereof, he admits the authenticity of

the judgment and commitment order attached

as Exhibit “A” but denies that it serves as

conclusive proof of his misconduct. On the

contrary, he incorporates his affirmative

defenses set forth below.

' nee |

3) Affirmatively answering, he avers that his

asserted conviction in the case identified in

Exhibit ““A” to the complaint, was had after

waiver of jury trial by a court who in

respondent’s belief was disqualified from

sitting as judge in his cause. Further

affirmatively answering, Respondent asserts

and avers that for the Florida Bar to attempt

to proceed to impose any punishment or

sanction upon him resulting from that

conviction and proceeding, his civil rights as

preserved to him by the constitution of the

United States and by federal statutes,

specifically including without limitation, Title

28 United States Code, §1983 and would

subject the Florida Bar to an action for an

injunction pursuant to that statute and other

available remedies.”

After the filing of the referee’s report and Onett’s

Petition for Review to the Supreme Court, he raised the

question in the following terms as recited by the court

in its opinion (A. 2):

“In support, Respondent argues that he was

denied due process before the referee because

he was not permitted to subpoena witnesses

whose evidence would have vitiated the federal

convictions and shown that he was guilty of no

wrongdoing.”’

He reiterated this position in his Petition for

Rehearing (A. 25 et seq.).

; ARGUMENT

I

IT WAS A DENIAL OF FUNDAMENTAL

DUE PROCESS TO REFUSE THE

PETITIONER’S APPLICATION FOR

SUBPOENAES AND TO DENY HIM THE

RIGHT TO COMPULSORY PROCESS AND

THE PRESENTATION OF WITNESSES.

This court has held that a lawyer is entitled to

procedural due process in a state disbarment proceeding.

Re Ruffalo, 390 U.S. 544, 88 S. Ct. 1222, 20 L. Ed. 2d

117 (1968). Indeed, even if this were an administrative |

proceeding instead of a proceeding in the judicial

branch, due process would require that rules

promulgated and established be complied with. See

Accardi us. Shaughnessy, 347 U.S. 260 74 S. Ct. 499,

98 L. Ed. 681 (1954); Service vs. Dulles, 352 U.S. 363,

77 S. Ct. 1152, 1 L. Ed. 2d 1403 (1957).

In like manner, the Supreme Court of Florida has

held that a disciplinary proceeding by the Florida Bar

is a penal (although not criminal) proceeding and that

due process requirements must be observed. Florida Bar

us. Quick, 279 So. 2d 4 (Fla. 1973).

As part of due process, a Florida Court of last resort

has held that compulsory process is a vital part of the

American concept of due process and a fair hearing, even

in a quasi judicial proceeding, Drogaise vs. Martine’s

Incorporated, 118 So. 2d 95 (1 DCA Fla. 1960).

10

aie,

The Florida Supreme Court in State Ex Rel Florida

Bar vs. Evans, 94 So. 2d 730 (Fla. 1957) said in pertinent

part:

‘“. . . In a disbarment proceeding based on

conviction of a crime, the proof of conviction

and an adjudication of guilt are sufficient to

establish a prima facie case for disciplinary

action. Due process, however, requires that the

accused lawyer shall be given full opportunity

to explain the circumstances and otherwise

offer testimony in excuse or mitigation of the

penalty.”

In the case at bar, the judgment of conviction is the

only evidence upon which your Petitioner could be

adjudged guilty of any wrongdoing. The indictment is

certainly not evidence. The testimony of Mr. Nuzum

does not implicate your Petitioner but exonerates him

and of course your Petitioner’s testimony does not harm

him. This disbarment must be sustained on the basis

of the judgment of conviction.

Under the terms of the proffer as made, it is clear

that the judgment of conviction could not stand and

would be vitiated if this Petitioner had been afforded

his due process rights to subpoena Judge Rawls and the

records of the JQC and to subpoena Judge Moore and

present him with the record of his pre-trial contact with

this investigation. The refusal of the referee to issue

process and its sanctification by the opinion to which

certiorari is here sought deprives your Petitioner of the

essential right to rebut by evidence the document upon

which the charge against him is based. Furthermore,

it deprives him of the right given to him to explain the

11 x

circumstances and otherwise offer testimony in excuse

or mitigation of the penalty.

It must be emphasized in this case that on the record

as adduced, Judge Moore has admitted pre-trial contact

with the investigation. The question that remains to be

decided is not whether Judge Moore had contact with

the investigation before he ascended the federal bench,

but the extent of that contact. We urge that if Judge

Moore were in fact presented with the evidence of that

contact and its extent, he would do the right thing. We

are not asserting that he is corrupt (although we think

it is a makable argument that he is bullheaded). Quite

the contrary. What we asked and were deprived of was

the opportunity to let Judge Moore see the full record,

hear the evidence of Judge Rawls and do the right thing

which would be on the basis of the proffer and could only

be to state on the record that the conviction should be

vitiated and to in fact vitiate that conviction.

We are not attempting here to retry the criminal

case. We are attempting here to bring into focus the facts

which developed post judgment which bear on the

judgment of conviction.

We respectfully suggest that this case goes to the

fundamental quality of the judicial system and its

functioning. The manner in which it has been handled

and swept under the rug creates an aura ill suited to

the executive branch, much less to the judicial. Either

the Supreme Court of Florida denied Onett fundamental

due process when it denied him the subpoenaes he

needed to establish that the charge against him could

not stand or at least to mitigate and explain it, or on

the other hand if we take the record in its present

12

ii i |

condition with the proffer, there can be no disbarment

of Onett because there can be no valid conviction. We

respectfully suggest that to hold that a judgment of

conviction entered by a judge clearly disqualified on the’

record can be the basis of a penal action against Onett

without a hearing on the merits of Onett’s contention

is more than an exaltation of form over substance, it

is a denial of the basic right to present an effective

defense.

13

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was mailed to

James N. Watson, Jr., Esq., Branch Staff Counsel, The

Florida Bar, Tallahassee, Fl 32301, this 14th day of

July, 1987.

SHALLE STEPHEN FINE

14

Appendix

SUPREME COURT OF FLORIDA

No. 67,622

THE FLORIDA BAR

Complainant,

US.

GEORGE ONETT

Respondent.

[February 26, 1987]

PER CURIAM.

This disciplinary proceeding against George L.

Onett is before us on complaint of The Florida Bar and

the report of the referee. The referee recommends that

Onett be disbarred. Onett petitions this Court for review

of the referee’s findings of fact and recommendations

of guilt and discipline. We have jurisdiction, article V,

section 15, Florida Constitution, and approve the

referee’s findings and recommendations.

Respondent was convicted in federal district court

of six felony charges: mai! fraud conspiracy, conspiracy

to obstruct interstate commerce by extortion,

obstruction and attempted obstruction of interstate

commerce by extortion, mail fraud, and two counts of

perjury. Respondent was suspended from the practice

of law effective October 18, 1982, under Florida Bar

Integration Rule, article XI, rule 11.07(3). Based on

App. 1

these convictions, the referee recommended that

respondent be found guilty of violating Florida Bar Code

of Professional Responsibility Disciplinary Rules

1-102(AX1) (violating a disciplinary rule), 1-102(AX3)

(illegal conduct involving moral turpitude), 1-102(AX4)

(conduct involving dishonesty, fraud, deceit, or

misrepresentation), 1-102(A\X5) (conduct prejudicial to

the administration of justice), 1-102(AX6) (conduct that

adversely reflect on fitness to practice law), as well as

Florida Bar Integration Rule, article XI, Rule 11.02(3Xa)

(commission of an act contrary to honesty, justice or good

morals).

Respondent urges that the referee’s recom-

mendations of guilt and disbarment should be

disapproved. In support, respondent argues that he was

denied due process before the referee because he was

not permitted to subpoena witnesses whose evidence

would have vitiated the federal convictions and shown

that he was guilty of no wrongdoing. Moreover,

respondent urges, it was harmful error to introduce into

evidence the federal indictment because it contained

counts and allegations which were not proven at trial.

Respondent’s argument merits only brief comment.

Respondent attempted to subpoena the presiding judge

in the federal trial and the general counsel of the Florida

Judicial Qualifications Commission, purportedly for the

purpose of showing that the presiding judge should have

recused himself from the trial. Respondent does not deny

that he has been convicted and those convictions

affirmed on appeal, United States v. Haimowitz, 725 F.2d

1561 (11th Cir.), cert. denied, 469 U.S. 1077 (1984).

Instead, he asks that we go behind those convictions

App. 2

and, essentially, retry these criminal charges. The

uncontroverted presence of a felony conviction is

conclusive proof of guilt of the offense charged for

disciplinary purposes. Fla. Bar Integr. Rule, art. XI,

Rule 11.07(1). A referee is not empowered to go behind

a criminal conviction. The Fla. Bar v. Heller, 473 So.2d

1250 (Fla. 1985): The Fla. Bar v. Vernell, 374 So.2d 473

(Fla. 1979). The denial of the subpoena and the refusal

of the profferred evidence was not error and did not

violate due process.

Respondent’s argument on introduction of the

indictment is also meritless. The judgment of conviction

was conclusive proof of the commission of the felonies.

The indictment merely showed that the convictions were

obtained based on charges brought. The trier-of-fact

normally has access to such charges even though they

are not evidence of guilt.

We approve the referee’s findings of facts and

recommendations of guilt and discipline. Onett is

disbarred effective immediately. Judgment for costs in

the amount of $603.86 is hereby entered against Onett,

for which sum let execution issue.

It is so ordered.

McDONALD, C.J., and OVERTON, EHRLICH, SHAW,

BARKETT, GRIMES and KOGAN, JJ., Concur

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION AND, IF _ FILED,

DETERMINED. THE FILING OF A MOTION FOR

REHEARING SHALL NOT ALTER THE EFFECTIVE

DATE OF THIS DISBARMENT.

App. 3

Original Proceeding—The Florida Bar

John F. Harkness, Jr., Executive. Director, John T.

Berry, Staff Counsel and James N. Watson, Jr., Bar

Counsel, Tallahassee, Florida.

for Complainant

Shalle Stephen Fine, Miami, Florida,

for Respondent

App. 4

IN THE SUPREME COURT OF FLORIDA

WEDNESDAY, APRIL 15, 1987

CASE NO. 67,622

THE FLORIDA BAR,

Complainant,

US.

GEORGE L. ONETT,

Respondent.

On consideration of the motion for rehearing filed

by attorney for respondent, and response thereto,

IT IS ORDERED by the Court that said motion be

and the same is hereby denied.

A True Copy

Sid J. White

Clerk of Supreme Court

[Supreme Court Seal]

C

cc: Shalle Stephen Fine, Esquire

John T. Berry, Esquire

James N. Watson, Jr., Esquire

Hon. Stephan P. Mickle, Judge

App. 5

Exhibit C

IN THE SUPREME COURT OF FLORIDA

(Before a Referee)

CONFIDENTIAL

Case Nu.

(TFB Case No. 04B86N18)

THE FLORIDA BAR,

Complainant,

Vv.

GEORGE L. ONETT,

Respondent.

COMPLAINT

THE FLORIDA BAR, Complainant, files this

complaint against GEORGE L. ONETT, Respondent,

pursuant to article XI of the Integration Rule of The

._ Florida Bar, as amended, and alleges:

1. Respondent is, and at all times mentioned in this

complaint was, a member of The Florida Bar, subject

to the jurisdiction and Disciplinary Rules of the

Supreme Court of Florida.

in 1981, Respondent and Harold B. Haimowitz, along

with others, sought to extort $15,000 from a local

Jacksonville restaurateur in his efforts to obtain a liquor

2. From on or about November, 1979, to sometime

App. 6 |

ii sic

license for his restaurant. Respondent accepted $7,500

cash as a partial payment towards the total extortionate

amount.

3. During this same time period, Respondent and

his co-extortionists sought to defraud the citizens of the

State of Florida, the Department of Business

Regulation, and the Division of Alcoholic Beverages and

Towvacco with regard to their review and approval of the

“restauranteur’s liquor license application. Respondent

perpetrated the fraud through intentional

misrepresentation and concealment of relevant

information.

4. During the investigation of these crimes,

Respondent perjured himself before a federal grand jury.

5. As a result of the actions referenced to in

paragraphs 2-4, Respondent was convicted of six felony

counts by United States District Court for the Middle

District of Florida. These felonies included conspiracy

to use and cause to be used the U.S. Postal Service to

execute a scheme to defraud and for obtaining property

by means of false and fraudulent pretenses and

representations; conspiracy to obstruct interstate

commerce by extortion; obstructing interstate commerce

by extortion; mail fraud; and making false declarations

while under oath before a Federal Grand Jury; all in

violation of Title 18, U.S.C., Sections 371, 1341, 1623,

1951 and 2. A copy of the Judgment and Commitment

Order is attached as Exhibit A and serves as conclusive

proof of Respondent’s misconduct referenced in

paragraphs 2-4.

App. 7

\

6. By reason of the foregoing, Respondent has

violated Disciplinary Rules 1-102(AX1) (a lawyer shall

not violate a disciplinary rule); 1-102(AX3) (a lawyer

shall not engage in illegal conduct involving moral

turpitude); 1-102(AX4) (a lawyer shall not engage in

conduct involving dishonesty, fraud, deceit, or

misrepresentation); 1-102(AX5) (a lawyer shall not

engage in conduct that is prejudicial to the

administration of justice); and 1-102(AX6) (a lawyer shall

not engage in any other conduct that adversely reflects

on his fitness to practice law.).

NOTICE REGARDING WAIVER

OF CONFIDENTIALITY

Please note pursuant to Florida Bar Integration

Rule, article XI, Rule 11.12(1Xd) effective October 1,

1979, the Respondent in these proceedings may file a

Motion to Maintain Confidentiality for the protection

of a client with the court or appointed referee within

twenty (20) days of this filing or confidentiality is

automatically waived as to the Complaint and all

further proceedings in this case.

United otal Fy Disthicl Cource

MilAc? Dt errata

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COGS L. Gait

a ED TEED Re Se vem swe. Pe. Ob-b-Cr- Joe:

S55 SLT ET ee 4

Tee ERENT :

In the presence wf the atturney fur the guvcenment ; Sonte Cav Stan

the de tremens apacared in perwn ya thn daic ae i JUL 2 1962_

see" Lu wiltiOul COUNSCL MNewrert We court ebemed Gelendant of tight te coun! 06 svhed whether Eelendent dewia &

Rene ce emul eppurnte dé By Te cuurt and the Grleadent theseupur wae? sveestiense Ut coven!

As wirmcoussee w _ Arthur W. Tifford and Shalle S. Fine (Retained) ’

(Nome of cuveret)

; \ Ci GUILTY, ang the court meing satinied that t jy NOLO CONTCNULRE, eX NOT GUILTY

There os ¢ Lectual buns fue the ples,

-

Li NOT CUILTY. Uctendent ao dehsyed

Ttagec Peong & teeme* at

3 DOO enue

+ Pate co lsts ieee Ioree: gtenemied av Charged wl the livmwint el Conspiracy to use and causo to be used the

»G& \U.S. Fostal Scrvice to execute « scheme to defraud and for obtaining property by moss

taut ( Of false and fraudulent pretensegand representations; conspiracy to obstruct

interstate commorce by extortion; obstructing interstate commerce by extortion;

rail fraud; and making false Ceclarations while under oath before a Federal Grand Jey;

all in violation of Title 18, U.S.C., Sections 371, 1341, 1623, 1951 and 2, as charcd

} in Counts 1, 2, ¢, 9, 18, and 19 of the Indictment.

TT) Ter ce eet hed wmener delendens had sey thing te sey why ped pmens chad net be pemneunses. Wet cue Au weellens. oot conse bf: “

wee ee By te ape eted be a Greet, tee Comet steered the Relemdent gulltg a0 charsed aud Comes.te @ and sm dered Wane bee aeten se:

. aT bt thee geen y od thn Attemncre Coens d me tein aethowened ters weed steng Meet emp treets tee sees tee FIVE (5)

YEARS ard FINED $7,500.00 on Count 1; FIVE (5S) YEARS and FINED $7,500.00 on Count 2,

said tem of inprisorment to run concurrently with the sentence imposed on Count 1;

FIVE (S) YEARS and FRED $7,500.00 on t 18, said tema of imprisonment to run

— SST Sieh the sentences imposed on Counts ard 2; and on condition that as +0

‘Shee ats 1,2.ard 18, the defendant be confined in a jail-type or treatrent institutio-

26a for a pericd of SIX (6) MONTHS, the execution of the reninder of the sentence c!

imprisonment is suspended and the defendant is placed on probation for a period of

FOUR #5 ONE-HALF (%4) YEARS, coo the standing conditions of probation, to comu:ce

inrediacely upon éefendant's release from confinenent.

IT IS FURTHER ADJUDGED that the imposition of sentence on Counts 4, 9 and 19 hercir.

is ve.senied ant the defendant is placed on probation for a period of FOUR KD A=-

vike Hel? (34) YEARS os each count, to run concurrently, upon the standlipj conditions

"HUES | Of prchation. Said periods of probation Tun consecutive. to tle tern of

6 inv: isoment, but concurrently with the period of probation inzosed on Counts 1,2, awd

“105 118, and shall commence immediately upon defendant's release fron confinement.

IT IS FUXER ADJUDGED that the defendant shall stand comitted until the fines

inzoscd herein are paid, or until the defendant is otherwise discharged by due course

of law. Tne order that the defencant stand committed is stayed until July 2, 1933.

(Foual confinwent sentence is SIX (6) MOVTHS, total protetion is FOUR AND QE-ivur

One ($5). YESS, and total fine is TWENTY-TWO THOUSNWD, FIVE HUNDRED ($22,500.00) DOLLS).

ce FA en Od Peter artes esapeart DT obered, ot an bw tad y cede oe b thet tha were! Te temete ce

@ Got 0ee e wet Mey ripen S. Vt Cewed thee oF ate Hy wertelttowers oF peta tots, te Cotes wel elated Utes footed ab ptt #

ot bets BP pete et ate foe tind ant wifes 2 setae beveeem potel-st we matin’ wl bee yeete in ttatiod By bee tet en a wetter ane

mS Ts be ee ee eee eo

ya Ths Genet ergo eemmitment ty the Custuty of the Attorney Geacral sad 1¢ wernnn ads, - {

jx . ee ee

" Ce. ee oe |

Sueeut Msmktbriwiee so i

UNE Re. eel eet wt at wnat 4 dat ote =

whos

COMTI Dat A Dees COMrw or

'; 9 13°94

ae eaeer Jut 2 ee

‘oer by . - re) s.

on be aah pai ee AA. > —— esti J oe eA net o Lf Fee F

JG. HK. HOORE, 11 JULY 2, 1982 4 3Caceen

Vim Ma eermr ane Gere : —! Ai livute

App. 9

Exhibit D

IN THE SUPREME COURT OF FLORIDA

(Before a Referee)

CONFIDENTIAL

Case No. 67,622

(TFB No. 04B86N18)

THE FLORIDA BAR,

Complainant,

VU.

GEORGE L. ONETT,

Respondent.

MOTION TO AMEND COMPLAINT

COMES NOW The Florida Bar, by and through its

undersigned counsel, moves the Referee to issue an

order pursuant to Rule 1.190(a) of the Florida Rules of

Civil Procedure allowing Complainant to amend its

complaint in the following manner:

1. Respondent’s actions alleged in the complaint

violated Integration Rule 11.02(3Xb) (the commission by

a lawyer of any act contrary to honesty, justice, or good

morals, whether the act is committed in the course of

his relations as an attorney, whether committed within

or outside the State of Florida, and whether the act is

a felony or misdemeanor, constitutes a cause for

App. 10

discipline) in addition to those violations alleged in

paragraph 5 of the original complaint.

Respectfully submitted,

/s/ James N. Watson, Jr.

James N. Watson, Jr.

Branch Staff Counsel

The Florida Bar

Tallahassee, Florida 32301

(904) 222-5286

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing

has been mailed by certified mail #640178, return

receipt requested, to George L. Onett, Respondent, at

his Bar address of 950 N.E. 96th Street, Miami Shores,

Florida 33138, and by U.S. Mail to Shalle Stephen Fine,

attorney for Respondent at the address of 46 Southwest

First Street, Miami, Florida 33130 on this 18th day of

November, 1985.

/s/ James N. Watson, Jr.

James N. Watson, Jr.

Branch Staff Counsel

App. 11

Exhibit E

IN THE SUPREME COURT OF FLORIDA

(Before a Referee)

CONFIDENTIAL

CASE NO. 67,622

THE FLORIDA BAR,

Complainant,

US.

GEORGE L. ONETT,

Respondent.

ANSWER AND AFFIRMATIVE DEFENSES

FL Bar No..024694

Respondent files his Answer and Affirmative

Defenses to the Complaint in this case and says:

1. He denies the allegations of paragraphs 2, 3, 4

and 6 of the Complaint.

2. Answering paragraph 5, he says that he denies

the allegation of the first sentence thereof. Further

answering, he admits so much of the second sentence

thereof as recites the titles of crimes prescribed by the

various sections of Title 18, U.S. Codes referred to

therein, but denies that he has been validly convicted

thereof. Answering the third sentence thereof, he admits

the authenticity of the Judgment and Commitment

App. 12

Order attached as Exhibit “‘A’’, but denies that it serves

as conclusive proof of his misconduct. On the contrary,

he incorporates his Affirmative Defenses set forth below.

3. Affirmatively answering, he avers that his

asserted conviction in the case identified in Exhibit “A”’

to the Complaint, was had after waiver of jury trial by

a Court who in Respondent’s belief was disqualified from

sitting as Judge in his cause. Further Affirmatively

answering, Respondent asserts and avers that for the

Florida Bar to attempt to proceed to impose any

punishment or sanction upon him resulting from that

conviction and proceeding, his civil rights as preserved

to him by the Constitution of the United States and by

Federal Statutes, specifically including without

limitations, Title 28, U.S. Code §1983 and would subject

the Florida Bar to an action for injunction pursuant to

that statute and other available remedies.

WHEREBY having fully answered, Respondent

prays that the Complaint be dismissed.

Respectfully submitted,

/s/ Shalle Stephen Fine

SHALLE STEPHEN FINE

Attorney for Respondent

370 Minorca, Suite 15

Coral Gables, Florida 33134

(305) 444-8845

App. 13

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing has been

furnished by mail to: James R. Watson, Jr., Esquire, The

Florida Bar, Tallahassee, Florida 32301, this 27th day

of September, 1985.

/s/ Shalle Stephen Fine

SHALLE STEPHEN FINE

App. 14

OL Pane WN eating cE MO ES. 9 tte ~

Exhibit B

IN THE SUPREME COURT OF FLORIDA

(Before a Referee)

CONFIDENTIAL

CASE NO. 67,622

(TFB NO. 04B86N18)

~ THE FLORIDA BAR,

Complainant,

US.

GEORGE L. ONETT,

Respondent.

REPORT OF THE REFEREE

I. SUMMARY OF THE PROCEEDINGS

Pursuant to the undersigned being duly appointed

as referee to conduct disciplinary proceedings herein

according to The Florida Bar Integration Rule, article

XI, the following occurred:

On September 10, 1985, the Florida Bar filed its

complaint against Respondent and on September 27,

1985 Respondent filed his answer. On November 1,

1985, The Florida Bar filed its Response to the Motion

to Maintain Confidentiality in response to Respondent’s

Motion to Maintain Confidentiality which was filed on

September 27, 1985. The Florida Bar filed its Request

for Admissions and a Motion to Amend Complaint on

November 18, 1985. Respondent filed an Objection to

App. 15

Request for Admissions on December 18, 1985. The Bar

responded to the Objection on January 2, 1986. The

aforementioned pleadings and this report constitute the

record in this case and are forwarded to the Supreme

Court of Florida.

Il. FINDINGS OF FACT AS TO EACH ITEM OF

MISCONDUCT OF WHICH RESPONDENT IS

CHARGED.

1. Respondent is, and at a'! times mentioned in this

complaint was, a member of The Florida Bar, subject

to the jurisdiction and Disciplinary Rules of the

Supreme Court of Florida.

2. From on or about November, 1979, to sometime

in 1981, Respondent and Harold B. Haimowitz, along

with others, sought to extort $15,000 from a local

Jacksonville restaurateur in his efforts to obtain a liquor

license for his restaurant. Respondent accepted $7,500

cash as a partial payment towards the total extortionate

amount.

3. During this same time period, Respondent

and his co-extortionists sought to defraud the citizens

of the State of Florida, the Department of Business

Regulation, and the Division of Alcoholic Beverages and

Tobacco with regard to their review and approval of the

restaurateur’s liquor license application. Respondent

perpetrated the fraud through intentional

misrepresentation and concealment of relevant

information.

4. During the investigation of these crimes,

Respondent perjured himself before a federal grand jury.

App. 16

5. As a result of the actions referenced to in

paragraphs 2-4, Respondent was convicted of six felony

counts by United States District Court for the Middle

District of Florida. These felonies included conspiracy

to use and cause to be used, the U.S. Postal Service to

execute a scheme to defraud and for obtaining property

by means of false and fraudulent pretenses and

representations; conspiracy to obstruct interstate

commerce by extortion; obstructing interstate commerce

by extortion; mail fraud; and making false declarations

while under oath before a Federal Grand Jury; all in

violation of Title 18, U.S.C., Sections 371, 1341, 1623,

1951 and 2. A copy of the Judgment and Commitment

Order is attached as Exhibit A and serves as conclusive

proof of Respondent’s misconduct referenced in

paragraphs 2-4.

6. By reason of the foregoing, Respondent has

violated Disciplinary Rules 1-102(AX1) (a lawyer shall

not violate a disciplinary rule); 1-102(AX3) (a lawyer

shall not engage in illegal conduct involving moral

turpitude); 1-102(A\4) (a lawyer shall not engage in

conduct involving dishonesty, fraud, deceit, or

misrepresentation); 1-102(AX5) (a lawyer shall not

engage in conduct that is prejudicial to the

administration of justice; and 1-102(AX6) (a lawyer shall

not engage in any other conduct that adversely reflects

on his fitness to practice law)..

Ill. RECOMMENDATIONS AS TO WHETHER

RESPONDENT SHOULD BE FOUND GUILTY

DR 1-102(AXa) (a lawyer shall not violate a

disciplinary rule).

App. 17

DR 1-102(AX3) (a lawyer shall not engage in illegal

conduct involving moral turpitude).

DR 1-102(AX4) (a lawyer shall not engage in

conduct involving dishonesty, fraud, deceit, or

misrepresentation).

DR 1-102(AX5) (a lawyer shall not engage in

conduct that is prejudicial to the administration of

justice).

DR 1-102(AX6) (a lawyer shall not engage in any

other conduct that adversely reflects on his fitness to

practice law.

Integration Rule 11.02(3Xb) (the commission by a

lawyer of any act contrary to honesty, justice, or good

morals, whether the act is committed in the course of

his relations as an attorney, whether committed within

or outside the State of Florida, and whether the act is

a felony or misdemeanor, constitutes a cause for

discipline).

IV. RECOMMENDATION AS TO DISCIPLINARY

MEASURES TO BE APPLIED

A) Disbarment from The Florida Bar;

B) Payment of $603.86 to The Florida Bar,

representing its costs in bringing this action. Such costs

shall be paid within thirty (30) days of the date of the

Supreme Court’s Order imposing discipline.

App. 18

ina NA aS CLA BCs Md a ROR DIONE Set

V. PERSONAL HISTORY AND PAST

DISCIPLINARY RECORD

Prior to recommending discipline pursuant to article

XI, Rule 11.06(9XaX4), I considered the following

personal history of Respondent, to wit:

Age: 56 years old

Date Admitted to Bar: November 4, 1966

Prior Discipline: None

VI. STATEMENT OF COSTS AND MANNER IN

WHICH COSTS SHOULD BE TAXED

I find the following costs were reasonably incurred

by The Florida Bar:

Referee Level

1. Administrative Costs $150.00

2. Court Reporter and Transcript Costs 320.36

3. Bar Counsel Travel and Expenses 133.50

TOTAL $603.86

It is recommended that such costs be charged to

Respondent and that interest at the statutory rate shall

accrue and be payable beginning 30 days after the

judgment on this case becomes final unless a waiver is

granted by the Board of Governors of The Florida Bar.

App. 19

DATED this 20th day of August, 1986.

/s/ Stephan P. Mickle

STEPHAN P. MICKLE

Referee

Copies to:

James N. Watson, Jr., Bar Counsel of The Florida Bar

George L. Onett, Respondent

Shalle Stephen Fine, Attorney for Respondent

App. 20

i he itt ee tes Ce

EXHIBIT A

— i a ate

Beet eee : United ues Distvret Court

aay Bite DE ter Peete

ind : Lo Sea a IS,

COATE L. OST

Ee Ce Ee OS ESE ee fey 100 wens ne. P= L_ Ol-6-Cr-J-t?

tn the presence uf the ativeney fur the government Sonn cay Tae

the ds tendent appeased in perwn ya thir date —| guy 2 1902

LJ WITHOUT COUNSEL — Haweees tne cnurt sbened Crlendont Of tight te count 6nd sehee whether Erlendent Gruen te.

Reve cegmul cppurnied By Ihe cuust and the Gilemdent thertupun waned aretomse oI sevewl.

Xu wimmcoussee i. Athur W. Tifford and Shalle S. Fine (Retainod) )

\ Wi GUILTY, ang the court neing saiinfied tht t JNOLOCONTCNUERE, ~XyNOTCUILTY

f there © @ Lag tual huis fue the plea,

Le NOT GUILTY. Delendent oy dimhorged

Tne Beng a tendens GQ00R af

— LX Guy.

6 be te ie tree Barat: geeeieg ted as Chatged uf the ellenve|s) al conspiracy to use and causo to be used the

“Ca \u. S. Fostal Service to execute a schema to defraud and for obtaining property by moss

tiat ( Of false and fraudulent pretenses and representations; conspiracy to obstruct

interstate conmarce by extortion; obstructing interstate commerce by extortion;

rail fraud; and making false declarations while under oath before a Federal Grand Jwy;

all in violation of Title 18, U.S.C., Sections 371, 1341, 1623, 1951 and 2, as charced

in Counts 1, 2, 4, 9, 18, and 19 of the Indictment.

a _—

TT) Tie cera ated mneadar elena sat Bad sey thing te Ley why judyment chauid not he Froneunie’. Ketouee Py walla sit secs ew

woe ee Ry te alt ated he he Greet, tht Coutl adpud sed Whe delendent guilty a whatzed smd Conri.u 6 ana sodered wat” bee atone

+ dhe hoe em atnty od thn Rttewnry Gonas d ae tein ruthowese d spre seed tens Hoet repr eemmncts tee ase tee ~PIVE (5)

YEARS ard FIND $7,500.00 on Count 1; FIVE (5) YEARS and FINED $7,500.00 on Count 2,

s3ic term of imprisonment to run concurrently with the sentence imposed on Count 1;

’ FIVE (5S) YEARS and FRED $7,500.00 on Count 18, said tema of imprisonment to run

¢ concurrently with the sentences imposed on Counts 1 and 2; and on condition that as +.

$ ALS ard 18, the defendant be confined in a jail-type or trcatrent institutio-

for a pericd of SIX (6) MONTHS, the execution of the rensinder of the sentence c!

imprisonment is suspended and the defendant is placed on probation for a period of

FOS Spe O.E-iHALF ($4) YEARS, upon the standing conditions of probation, to commence

isrediacely upon defendant's release fram confinewent.

IT IS FUNT<ER ADIZDGED that the izposition of sentence on Counts 4, 9 and 19 hercir.

is aonitestie anc the defendant is placed on probstion for a period of FOUR AD A=-

a Heit (34) YEARS on each count, to run concurrently, upon the standlip3 conditions

ph Le castion. Seid periods of pretation Tun consecutive. to tte tera of

| irs isontent, but concurrently with the period of of probstion tnvosed on Counts 1,2, and

“NOS | 48, end shall commence immediately upon defendant's release fraa confinennt.

IT 1S FUMTER ADJUDGED that the defendant shall stand committed until the fines

inzoscd herein are paid, or until the defendant is otherwise discharged by due course

of law. The order that the defendant stand committed is stayed until July 2, 1933.

(Jowal confirmant sentence is SIX (6) MOVIMS, total protetion is FOUR AND GQt-ivur

iT ian 8 Se YEAS, and total fine is TWENTY-TWO THOUSAND, FIVE HUNDRED ($22, 300. 00) CALS).

f.ttUns < wro.f4 m0 of ptafestons ome rent chwret, anton, we. + 0 eet hee Cate ogee tee cet fied foment

ne Ge rr0ee ce%0 « weet te peed. The Cowed ee of ewe Da ceebaiae 4F p-nbulol ibis whansad ta Gomanl ut gree '

© t Be See tee te te Be ok net we Titel 2 cena s berereee predal wn patind wl bee yeets pn ttetin’d By Lee tut an ae tte ase

valegyu fore stare Bes See lee eeerea, Seems Ot preb stow poten.

The Geel wrgses Commiteneat ty the custydy of the Attorney General ond 14 orrnn nds, -

i y ?

ad We mwronre sO ot te hates |

4 ee, ee ee

eR 2 tee rete et te tte & * a

eet ot wl at wet a det ote J

“ued

ULMER

COMI MD mL A Theat COPE ur

any ULE DE

pied , - KA \ Waa Q7 , Aiea. GF ¥

88 ee be emt swe Fi —— thé a é ha %

° ‘ at: ¥ Il ° AS Steowocs ¥

JULY 2, 1982 - ( besten 7

4 Vm Me carne gee Oste Ah laevie

App. 21

IN THE SUPREME COURT OF FLORIDA

CASE NO. 67,622

(CONFIDENTIAL)

THE FLORIDA BAR, |

Complainant, |

US.

GEORGE L. ONETT,

Respondent.

PETITION FOR REVIEW

The Respondent George L. Onett petitions for review

of the Report of the Referee dated August 20, 1986, and

mailed August 21, 1986, and specifies the following

portions of the Referee’s Report sought to be reviewed:

Section II, paragraphs 2, 3, 4, 5, and 6; ;

Section IV, subsections A and B;

Section VI, (Petitioner does not contest the amounts

of costs but rather entitlement thereto based on his

challenge to the findings).

Respectfully submitted,

/s/ Shalle Stephen Fine

SHALLE STEPHEN FINE

Attorney for Petitioner

46 S.W. First Street, Suite 201

Miami, Florida 33130

Tel. (8305) 358-1515

App. 22

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct of the

foregoing was furnished by mail to JAMES N.

WATSON, JR., Bar Counsel of the Florida Bar, The

Florida Bar, Tallahasse, Florida 32301, this 16 day of

September, 1986.

/s/ Shalle Stephen Fine

SHALLE STEPHEN FINE

App. 23

Supreme Court of Florida

Tallahassee 32301

SID J. WHITE . TELEPHONE

CLERK 904-488-0125

DEBBIE CAUSSEAUX

CHIEF DEPUTY CLERK

December 4, 1986

Shalle Stephen Fine, Esquire

46 S. W. First Street, Suite 201

Miami, Florida 33130

Re: The Florida Bar vs. George L. Onett

Case No. 67,622

Dear Mr. Fine:

At the direction of the Chief Justice, the above case

has been submitted to the Court without oral argument.

Most cordially,

/s/ Sid J. White

Sid J. White

Clerk Supreme Court.

SJW:sg

cc: James N. Watson, Jr., Esquire

App. 24

ee

IN THE SUPREME COURT OF FLORIDA

CONFIDENTIAL

CASE NO. 67,622

THE FLORIDA BAR,

Complainant,

US.

GEORGE L. ONETT,

Respondent,

PETITION FOR REHEARING

The Petitioner/Respondent, GEORGE L. ONETT, by

and through counsel undersigned, petitions for

rehearing directed to the Opinion of the Supreme Court

of Florida dated February 26, 1987 and in support

thereof shows that the Supreme Court of Florida

everlooked or failed to consider each of the following

separate and several points:

1. In deciding this case without the benefit of Oral

Argument (although Oral Argument was requested), the

Court takes the position that the Judgment of

Conviction was not subject to attack and that

consequently, the Subpoenas requested by your

Petitioner did not have to be issued. In taking this

position and assuming that it were correct, which it is

clearly not, based on the arguments advanced in the

briefs, nevertheless, it is a denial of fundamental due

process to deny Petitioner the subpoenas he requested.

The Supreme Court of Florida in State Ex Rel Florida

App. 25

Bar us. Evans, 94 So.2 730 (Fla. 1957) specifically held

that due process requires that the accused lawyer shall

be given full opportunity to explain the circumstances

and otherwise offer testimony in excuse or mitigation

of the penalty. We suggest that the testimony proffered

would certainly go to excuse or mitigate the penalty if

it did nothing else. Your own cases require that we be

given the opportunity to present this testimony.

2. This case is obviously an awkward case. It raises

the spectre of a tainted conviction by a Federal Court

presided over by a judge of outstanding reputation and

ability. It is not a pleasant subject. Nevertheless, we

respectfully suggest that it will not go away. To

perpetuate this state of affairs is unfair to Mr. Onett

and it must be said, unfair to the judiciary and to Judge

Moore. It perpetuates an aura of secrecy and an air of

suspicion which stains the entire judicial process. That

it hurts Mr. Onett is clear. But it is also evident that

it casts an undeserved shadow on Judge Moore. While

we have asserted and do assert that he may be in error,

and while we would conclude that he may be stubborn,

we have never charged, nor do we assert now that he

is corrupt. To the contrary, we believe, as we have

asserted, that if presented with the facts, and if the facts

bear out what we assert in our proffer, Judge Moore

would forthwith do the correct thing. If Mr. Onett did

not receive the cold neutrality of an impartial judge in

his trial, he ought not suffer for it. We respectfully

suggest that the Supreme Court of Florida ought settle

this case once, finally and forever. This matter should

be opened up, examined and disposed of under the

sunlight of the truth and not the cloud of suspicion.

App. 26

WHEREFORE, Movant respectfully requests that

this Court grant rehearing, set this cause for Oral

Argument and quash the referee’s report with directions

to comply with the requirements of fundamental due

process as requested and expressed herein and in our

briefs.

Respectfully submitted,

/s/ Shalle Stephen Fine

SHALLE STEPHEN FINE

Attorney for Respondent

46 S. W. First Street

Suite 201

Miami, FL 33130

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was mailed to

James N. Watson, Jr., Esq., Branch Staff Counsel, The

Florida Bar, Tallahassee, FL 32301, this 12 day of

March, 1987.

/s/ Shalle Stephen Fine

SHALLE STEPHEN FINE

=

—_

a

a

App. 27

EXHIBIT F

SHALLE STEPHEN FINE

ATTORNEY AT LAW

46 S. W. FIRST STREET, SUITE 201

MIAMI, FLORIDA 33130

(305) 358-1515

July 1, 1986

VIA FEDERAL EXPRESS—CONF. # TMB 340

The Honorable Stephan P. Mickle

Circuit Judge (Referee)

Allachua County Courthouse

Gainesville, Florida 32601

Re: The Florida Bar v. George L. Onett

Case No. 67,622 (Confidential)

Dear Judge Mickle:

Pursuant to your Honor’s rules at Pre-Trial

Conference, I enclose herewith the following in the

referenced case:

1. Response to Pre-Trial Order.

2. Three Subpoenas for service by your office. With

respect to those subpoenas, the one for Mr.

Nuzum will, I presume, issue as of course. With

respect to the subpoenas for Judge Rawls and

Moore, we suggest that those subpoenas ought

issue as of course also. If either Judge Rawls or

App. 28

ace a al SR ask IY Bana ekki oO le 0 RA

Judge Moore feel that-there is a privilege which

ought be asserted, that privilege belongs to them

and they will, of course, have the opportunity to

assert. If they do not. assert it, it will be waived

like any other privilege.

I would like, of course, to get the subpoenas served

as quickly as possible so, if your secretary will call me

collect I will arrange to have them picked up at your

chambers for service.

Thank you for your kind attention to this matter.

Very truly yours,

/s/ Shalle Stephen Fine

SHALLE STEPHEN FINE

SSF/Ip

cc: James R. Watson, Jr., Esquire

via Federal Express

CONF. # TMB 340

App. 29

IN THE SUPREME COURT OF FLORIDA

(Before a Referee)

CONFIDENTIAL

CASE NO. 67,622

(TFB No. 024694)

THE FLORIDA BAR,

Complainant,

US.

GEORGE L. ONETT,

Respondent.

SUBPOENA

DUCES TECUM

TO: THE FLORIDA JUDICIAL

QUALIFICATIONS COMMISSION

By and through the HONORABLE JOHN S.

RAWLS

Old Capitol Building

Tallahassee, Florida

YOU ARE HEREBY COMMANDED to appear

before the Honorable STEPHAN P. MICKLE, Referee,

at the Allachua County Courthouse in Gainesville,

Florida on July 9, 1986 at 9:30 a.m. to testify in the

above-styled cause and have with you at the said time

and place the following:

1. Minutes of the meeting of the Florida Judicial

Qualifications Commission from January 1, 1979

through December 31, 1980.

App. 30

a heal WS uiecseceaes

‘

2. Transcripts of meetings of the Florida Judicial

Qualifications Commission for the period January 1,

1979 through December 31, 1980.

3. Any and all memoranda, notes, correspondence,

records of telephone conversations or oral discussions,

memos to file or other written material in the files or

possession of the Judicial Qualifications Commission or

its officers or employees respecting any report,

complaint, investigation or proceeding of the

Commission or of any other person, firm, corporation

or agency reporting to or having contact with the

Commission or any of its officers, agents or employees

and resulting from any act, deed, complaint or

occurrence had or allegedly had in Duval County,

Florida during the period of 1-1-79 through 12-31-80.

If you fail to appear, you may be in contempt of

court.

You are subpoenaed to appear by the following

attorneys unless excused from this subpoena by these

attorneys or the Court, you shall respond to this

subpoena as directed.

WITNESS my hand and seal as Referee on July _,

1986.

(SEAL)

STEPHAN P. MICKLE

Circuit Judge (Referee)

SHALLE STEPHEN FINE, ESQUIRE

Attorney for Respondent

46 S. W. First Street

Miami, Florida 33130

(305) 358-1515

App. 31

IN THE SUPREME COURT OF FLORIDA

(Before a Referee)

CONFIDENTIAL

CASE NO. 67,622 |

TFB No. 024694 |

THE FLORIDA BAR,

Complainant,

US.

GEORGE L. ONETT,

Respondent.

SUBPOENA

TO: THE HONORABLE JOHN H. MOORE, II

UNITED STATES DISTRICT JUDGE |

MIDDLE DISTRICT OF FLORIDA |

JACKSONVILLE, FLORIDA

YOU ARE HEREBY COMMANDED to appear

before the Honorable STEPHAN P. MICKLE, Referee,

at the Allachua County Courthouse in Gainesville,

Florida on July 9, 1986 at 9:30 a.m. to testify in the |

above-styled cause and have with you at the said time

and place the following: |

Not Applicable

If you fail to appear, you may be in contempt of

court.

App. 32

You are subpoenaed to appear by the following

attorneys unless excused from this subpoena by these

attorneys or the Court, you shall respond to this

subpoena as directed.

WITNESS my hand and seal as Referee on July __,

1986.

(SEAL)

STEPHAN P. MICKLE

Circuit Judge (Referee)

SHALLE STEPHEN FINE, ESQUIRE

Attorney for Respondent

46 S. W. First Street

Miami, Florida 33130

(305) 358-1515

App. 33

IN THE SUPREME COURT OF FLORIDA .

(Before a Referee)

CASE NO. 67,622

TFB No. 024694

THE FLORIDA BAR

Complainant,

US.

GEORGE L. ONETT,

Respondent.

CONFIDENTIAL

DISCIPLINARY MATTER CONDUCTED UNDER

AUTHORITY OF THE INTEGRATION RULE

OF THE FLORIDA BAR

Pursuant to Notice, the matter contained herein

came on for hearing before THE HONORABLE

STEPHAN P. MICKLE, duly appointed Referee, at

the Alachua County Courthouse, Gainesville,

Florida, on Wednesday, July 9, 1986, commencing

at 10:45 a.m. and in the presence of Lori Williams,

Court Reporter, Gainesville, Florida.

APPEARANCES:

(See Page 2)

MR. FINE: That’s it, Judge, as far as direct.

JUDGE MICKLE: Any cross?

App. 34

MR. WATSON: No cross.

MR. FINE: May Mr. Nuzum be excused to return

to his dinner party tonight? We do appreciate your

coming.

JUDGE MICKLE: Certainly. All right.

(Witness excused)

MR. FINE: Judge, I would like to take about a five-

minute recess, because I now have a judgment to make—

JUDGE MICKLE: All right.

MR. FINE: —with respect to how we are going to

proceed.

JUDGE MICKLE: Very well. We’ll recess for five

minutes.

MR. FINE: Thank you.

(Whereupon, a short recess was held.)

JUDGE MICKLE: Ready to proceed, Mr. Fine?

MR. FINE: Yes, sir.

If the Court please, at this time, I would like to take

up the question of the subpoenas which we tendered,

one to the Honorable John Rawls, and the other to the

Honorable John Moore, the Federal District Judge who

presided over Mr. Onett’s trial, which were not issued

App. 35

by the Court, and I would like, for the purposes at least

of preserving my record, assert by way of proffer that

if subpoenaed and if required to testify to produce the

records of the Judicial Qualifications Commission,

Judge Rawls testimony and those records would reflect

that Judge Moore, while the Chairman of the Florida

Judicial Qualifications Commission, had had pre-trial

contact with the investigation which produced the FBI

investigation, which produced Mr. Onett’s indictment,

which would have been sufficient under the present

Federal Recusal Statute to make it appear to a

reasonable man that Judge Moore could not have been

impartial in that trial, even if the case were tried with

a jury and not tried non-jury.

And in support thereof, I would point out that Judge

Moore, in a Chambers conference, held in his Chambers,

on July 12, 1983, indicated that he had some pre-trial

contact with the investigation, and further indicated —I

think probably the thing to do is offer into evidence, on

our behalf, the transcript of that Chambers conference

in Case No. 81-65-CR-J-16, in the United States District

Court, Middle District of Florida, United States of

America vs. Onett, and we would offer that as our

exhibit, Your Honor.

JUDGE MICKLE: Are you offering this as part of

your proffer?

MR. FINE: Yes, sir. As part of our proffer

And during that Chambers conference, Judge Moore

indicated that he had had some peripheral contact with

the investigation. And I’m characterizing it as

peripheral, I think there is no question it was

App. 36

peripheral. And he also indicated that he had totally

forgotten about it, and at the time of the trial, in his

own words, on page 10, it looks like:

“The Court: Listen, I got bombarded with so many

cases here, I didn’t have time to think about the past.”’

I may say, Judge Moore had just ascended the

Federal bench and this was his first major trial, and he

had concededly a new evidence code, a new set of

procedural rules and whatnot, not to mention five

lawyers clammering at him all the time.

But nevertheless, there is no question but that there

was pre-trial contact. The real question is, the extent

of it, and whether that extent was so disabling as to

require that the conviction be vitiated.

And what we are saying is, that the evidence, which

would be presented by Judge Rawls, and the records of

the Judicial Qualifications Commission, would establish

that. And we believe and proffer that Judge Moore, if

he had the opportunity to review that evidence and

those documents, would concede candidly, because he

was candid in the Chambers conference to the extent

of his recollection and his ability at that moment. And

this was the first that it had been approached to him,

that he would concede that he did not meet the standard

of the statute in light of his review of that evidence.

So we think that is essential, obviously, to Mr.

Onett’s position in this cause, because the whole case

hinges here on the conviction.

App. 37

If you take the conviction out—if you take that

judgment of conviction away from this record, there is

just nothing to charge Mr. Onett with. That’s the only

thing that prevents it, is that judgment of conviction,

and I suggest to you that in a situation where the State

of Florida is trying to take Mr. Onett to a disciplinary

proceeding through the Supreme Court and the Florida

Bar, and where the State of Florida, through the

Judicial Qualifications Commission, is sitting on

evidence that would vitiate the conviction, that they are

trying to beat him over the head with here, that that

is not only not fair play, but that the State is actively

prevented from doing it.

I would suggest to you, by way of analogy, if this

were a criminal case and they were trying to prosecute

Mr. Onett, and it developed that another department

of the State was sitting on evidence that was made

secret by whatever process, and that evidence would

exonerate or tend to exonerate or exculpate Mr. Onett,

that Your Honor wouldn’t consider for a moment

allowing the State to prosecute through one arm and

conceal through the other. And I suggest to you that

the same ought to be true here, and this is a penal

proceeding; that if the State wants to penalize Mr.

Onett, they are entitled to do it, Judge, if they can prove

it; but they can’t sit on the evidence that would

excuipate Mr. Onett, that would allow us to say to the

Judge who produced the document, that they want to

hit him over the head with, I really shouldn’t have been

the one to make that decision, and go back to square

one. And that’s particularly true of Mr. Nuzum, who

was the critical factor in the government’s case, because

he obviously was the man sitting at the neck of this

bottle and whom this application had to pass through.

App. 38

a ee eS eS ee Oe ee

Number one is, Mr. Clean of the FBI, the guy who

they picked to head up the Watergate investigation, he’s

brought into the department and placed just in the

critical position where you can’t get the license unless

you go through him. He testified there wasn’t the

slightest attempt of anything out of the ordinary with

respect to him. He testified he was aware of this

application. He testified that Onett appeared after it was

ongoing and Onett asked him what he had to do and

he told him, and he recalled his testimony. He told him

you have got to get Abbott on this license and Onett put

Abbott on the license; and as soon as he did that, as soon

as Onett put him on the license, as far as Nuzum was

concerned, he was an applicant and he could be dealt

with.

And the reason why he wasn’t dealt with was not

because of anything Onett did or didn’t do. It was

because Nuzum was accommodating the fellows in his

old shop. You know, really, what happened here is, and

it’s a tight squeak for Nuzum, but Nuzum was in a

- situation where he’s got an obligation to the people of

the State of Florida to use his judgment and deny this

application and he’s got—and I feel for him, because I

know something about old school ties and old friends

and old shops—he’s got this tie to his old shop. And he

decided he was going to go with his old shop, and that’s

basically how this case came down.

If Nuzum had said to these fellows, “Hey, you run

any sting you want, but I have got a job to do here and

I’m going to get this guy. You just told me he’s a felon

and he’s bad. I’m going to blow him out.” That would

have been the end of this whole thing.

App. 39

ral

So what I’m saying to you is, and this is stated in

the record, it seems to me before we go any further, we

ought to be entitled to inquire as to what the JQC has

in its files, and let me point something out to you about

the JQC and the constitutional provision with respect

to the JQC.

Your Honor knows, and we all know, that there is

a provision saying that the proceedings of the JQC are

secret until the time when they file a charge and it

becomes public. But there is an exception to that in the

constitutional provision.

The constitutional provision says that either the

Speaker of the House of Representatives, in his capacity

with respect to impeachment proceedings, or the

Governor, because he has the ability to remove a judicial

officer from office on his own, can request and must be

given that supposedly secret information for the purpose

of making an investigation into the possibilities of

impeachment or removal from office, and there is no

constraint on the Speaker or the House or the Governor

or the Governor’s office to keep any of that information

secret once it passes to them. In other words, there is

a built in—two built in gigantic breaches in that wall

of secrecy.

Now, that provision was enacted, obviously, for the

purpose of protecting an innocent judicial officer who

is sitting from the attack of anyone who wants to write

some wacky letter to the JQC saying, “Oh, Judge Smith

is doing this and that and the other.” And that’s a valid

purpose. But I suggest to you that keeping secret what

would help Onett with respect to Judge Moore in his

capacity as chairman here was never envisioned as part

App. 40

of that purpose, and I’m suggesting to you that both

purposes—the purpose of doing justice in this case and

the purpose of protecting innocent judicial officers—can

be accomplished and accomplished easily.

And the way it would be done is that I presume Your

Honor or counsel would make an in camera inspection.

And we are not interested in any judges names, who

cares what those names were. They are immaterial to

us and to this case. They can be inked out, scratched

out, blacked out, removed totally.

What we are interested in is what those records and

Judge Rawis testimony was, which at the moment—of

course, it would also be totally confidential—would tell

Your Honor about Judge Moore’s relationship to the

investigation so that we can, as I say, refresh Judge

Moore’s recollection, either directly, if he will respond

to the subpoena, or indirectly through a motion, once

we develop this information and give—all I have been

trying to do for three years is to get the records to Moore

so that he can make a determination that he was or he

wasn’t in possession of the full record, because once he

does that, then we can—if we don’t like that, we can take

it somewhere else and get the Eleventh Circuit to say

we’re right or we’re wrong. And if we’re wrong, we’re

wrong, and this case is, you know, that aspect of this

case is dead.

But if we are right, if we are right, it’s really more

than an injustice. It’s an outrage, that this fellow can

face the loss of his professional license based on a

conviction that may very well be subject to being

quashed; and as I say, where there is an indication in

the record by Judge Moore.

App. 41

iia

&

This isn’t something that’s coming out of the blue

that I’m fishing out of the St. John’s River. I mean,

here’s a situation where Judge Moore himself recalled

and candidly acknowledged that he had some contact.

So I say, now what we are talking about is the extent

of the contact, and the extent to which his recollection

will be refreshed and the record will refresh his

recollection.

JUDGE MICKLE: Mr. Fine, I think we’ve moved

from your proffer of evidence into your argument on

whether or not the subpoena should be issued.

MR. FINE: Yes, sir. I combined them both,

obviously.

JUDGE MICKLE: You had a document there you

wanted to—

MR. FINE: Yes, sir.

JUDGE MICKEL: —attach to the proffer?

MR. FINE: Yes, sir.

JUDGE MICKLE: You want to make a proffer of

Judge Rawls’ testimony?

MR. FINE: Yes, sir. What Judge Rawl’s testimony

would be, if he were called.

That he is the legal counsel, the general counsel for

the Florida Judicial Qualifications Commission; that he

was the general counsel at all times that are material

to us here; that as general counsel, he has access to and

App. 42

custody of the papers, records, minutes and documents

of the Florida Judicial Qualifications Commission; that

he knows, which I can’t conceive to be an issue, that

Judge Moore was, in fact, the Chairman of that

Commission prior to his acceding to the Federal bench;

and that the documents in his possession, custody and

control would show that Judge Moore had had pre-trial

contact with the investigation which produced the

indictments relating to Abbott’s Restaurant and Mr.

Onett, Haimowitz, Scarborough and Ritter; and that the

extent of that pre-trial contact, as indicated, would be

such that Judge Moore should not, under the present

Federal statute, have sat on the case. And I’m saying

that is what his testimony would show if he were

permitted to come here and testify.

I may say when I make that statement, I’m not

trying to cast dispersions on Judge Moore, because the

reason why I wanted Judge Moore to come here is that,

in my judgment, if he were presented with the evidence

that Judge Rawls could produce and have the

opportunity to review it, Judge Moore would tell you

candidly, that having had his memory refreshed and

having had an opportunity to go over the record and

having had an opportunity to place himself back in the

situation, that he would agree with the position and

would grant the motion that we would obviously make

immediately, termination of this hearing before him,

to vacate this conviction under the provision of—I

believe it’s titled 28, Section 2255, but I wouldn’t want

to be held to the Section number. But there is an

appropriate provision in the Federal statute, as there

is in ours, for the vacation of this, and if not, coram nobis

would rule in any event.

App. 43

That’s our position. That’s what we think the

evidence would show.

JUDGE MICKLE: Is there any other evidence that

you would like to present?

MR. FINE: Well, may I have a ruling on that?

I can’t force Your Honor, but how Your Honor rules

on that is obviously going to be impactive.

JUDGE MICKLE: The request you made—

MR. FINE: Yes, sir.

JUDGE MICKLE: —in your letter and that you sent

up to my office, a subpoena duces tecum for Judge Rawls

and Judge Moore, was denied by the Court.

MR. FINE: All right.

JUDGE MICKLE: Andforthe record, I’m going to

reconfirm that denial.

MR. FINE: All right, sir.

JUDGE MICKLE: Any other evidence you would

like to present?

MR. FINE: Yes. I think I would like to call Mr.

Onett.

JUDGE MICKLE: All right.

App. 44

(Thereupon, GEORGE L. ONETT, having been

called as a witness on behalf of the Respondent, and

being first duly sworn by the Referee, testified as

follows:)

App. 45