IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

THE STATE OF FLORIDA, CASE NO.: F08-36522B

Plaintiff, JUDGE:
BARZEE FLORES
vs.

DELAILA JANNETTE ESTEFANO,

Defendant.
/

DEFENDANT’S FOURTH MOTION TO COMPEL DISCOVERY AND MOTION TO

COMPEL ANSWERS TO DEPOSITION QUESTIONS

COMES NOW the Defendant, DELAILA JANNETTE ESTEFANO (“Ms. Estefano”),

by and through her undersigned attorneys, and hereby files this Fourth Motion to Compel

Discovery and Motion to Compel Answers to Deposition Questions and in support thereof states:

BACKGROUND

1. The State of Florida (“State”) filed a felony information charging Ms. Estefano with the

following felony counts: one (1) count of Organized Scheme to Defraud in violation of

Florida Statute § 817.034(a); one (1) count of Grand Theft First Degree in violation of

Florida Statute § 812.014 (1) and (2)a; and (1) count of Fraudulent Use of Identification

Information in violation of Florida Statute § 817.568(2)(c). Ms. Estefano is also charged in

each of the counts as a principal in the first degree in violation of Florida Statute § 777.011.

2. Co-Defendants John Arthur Romney (“Romney”) and Michael Anthony Martinez

(“Martinez”) are also jointly charged in each of the counts both directly and as principals in

the first degree.

3. Upon information and discovery thus far provided, the State’s case centers around Co-

Defendant Romney’s purchase of real property located at 3390 Oak Avenue, Coconut Grove,
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 Florida (hereinafter “the property”) on or about February 13, 2008 and Romney’s eventual

sale of that property to a Bernardo Humberto Barreira on February 19, 2008. Ms. Estefano

was the closing agent for the purchase and sale.

4. Citi Mortgage, Inc. (the alleged victim in Counts one (1) and two (2)), financed Bernardo

Humberto Barreira’s purchase of the property from Romney.

5. Apparently, unbeknownst to Citi Mortgage, Inc., an unknown individual allegedly stole

Bernardo Humberto Barreira’s identification and deceived Citi Mortgage, Inc. into believing

that it was financing the real Bernardo Humberto Barreira’s purchase of the property from

Romney.

6. The State apparently believes that Ms. Estefano, as the closing agent for both real estate

transactions, made one or more various false statements in order to defraud Citi Mortgage,

Inc. and/or the real Bernardo Humberto Barriera.

7. This case is currently set for trial on February 16, 2010.

PROCEDURAL HISTORY

8. On October 28, 2008 the Defense filed a motion requesting all material favorable to the

Defense on the issue of guilty and punishment pursuant to Brady v. Maryland, 373 U.S. 150

(1972) and United States v. Agurs, 427 U.S. 97 (1976). On December 11, 2008, the Court

entered an order granting the motion.

9. On May 18, 2009, the Defense argued before this Court its first Motion to Compel

requesting statements from Co-Defendants Romney and Martinez.

10. The Court ruled that if either Co-Defendant provided a statement which contained

“Brady” information, the State must promptly provide that statement to the Defense or

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 provide the statement to the Court for an in-camera review to determine whether the

Statement constituted “Brady” information.

11. The Court further ordered the State to instruct all law enforcement personnel to preserve

all notes, and to produce any and all notes of Detective Jorge Baluja relating to this case.

12. On June 25, 2009, the State listed Co-defendant Martinez as a state witness. The State

also provided a copy of his plea agreement whereby he agreed to fully cooperate with the

State and testify for the State in exchange for a below guideline sentence.

13. Upon information and belief, the Defense believes that there are two statements (and

possibly more) of Co-Defendant Martinez in the State’s possession.

14. Despite repeated requests and multiple court orders, the State has failed to provide Mr.

Martinez’s statement. Upon information and belief, the Defense believes the State has had

possession of Mr. Martinez’s statement for at least the last three months.

15. Furthermore, the State has interviewed Co-Defendant Romney on at least two occasions

(and possibly more) in anticipation of a plea agreement with him. Upon information and

belief, the Defense believes the State has had possession of Mr. Romney’s statements for at

least the past three months.

16. On September 16, 2009, the Court entered an order requiring the State to provide the

statements of Co-Defendant Romney and Martinez by October 1, 2009. 1

17. In anticipation of receiving those statements, the Defense scheduled the depositions of

Detectives Baluja for October 7, 2009, Detective Valdes and Calvo for October 14, 2009 and

Detective Valdes for October 20, 2009.

1 The Defense and the State later agreed that the statements of Co-Defendant
Romney and Martinez would be turned over to the Defense at the Deposition of
Detective Baluja scheduled for October 7, 2009.
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18. During the Deposition of Detective Baluja on October 7, 2009, the State advised that it

would provide the subject statements the next day, but that they would be redacted since the

investigation was still “ongoing”. Furthermore, the State conceded that both Co-Defendant

Romney and Martinez did not directly implicate Ms. Estefano has having knowledge about

the underlying fraud in the case.

19. As of the date of this motion, the statements have still not been provided.

20. Furthermore, during the Deposition of Detective Baluja (a lead detective in the case), he

refused to answer questions regarding the following topics:2

a. Conversations he had with Assistant State Attorney Bill Kostrzewski (Mr.

Kostrzewski asserted a “work product privilege” upon which Detective Baluja

refused to answer the question); and

b. When asked about the statements Co-Defendant / State Witness Martinez and Co-

Defendant Romney stated to Detective Baluja during two different debriefings, he

refused to answer questions about certain portions of those statements citing

“ongoing investigation”. The questions posed were basic and relevant questions

such as:

i. Who did Mr. Martinez give the earnest money check to?

ii. Who did Mr. Martinez incriminate?

iii. Who did Mr. Romney incriminate?

21. In light of Detective Baluja’s refusal to answer the above questions similar type

questions, the deposition was terminated so that this motion could be filed.

2 As of the filing of this motion, the deposition transcript of Detective

Baluja was not available.
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22. Before the deposition was terminated, the Defense advised the State and the Detective

that it would seek a court order compelling answers to these questions and that it would seek

to hold the State responsible for covering the costs of any re-deposition should the Court find

the objections unfounded.

23. Finally, the State advised that each of the Detectives scheduled for the month of October

would also refuse to answer similar questions based on their “ongoing investigation”.

24. As a result, the Defense has had to cancel the depositions of Calvo and Hodges and the

deposition of Detective Valdes may also have to be cancelled.

ARGUMENT

Statements of Co-Defendant Martinez and Romney

25. The discovery rules are absolutely clear. Pursuant to Rule 3.220(b)(1)(B), the State is

obligated to turnover all statements of State witnesses. Co-Defendant Martinez is a state

witness.

26. Moreover, pursuant to Rule 3.220(b)(1)(D), the State is obligated to turnover “any written or

recorded statements and the substance of any oral statements made by a codefendant if the

trial is to be a joint one.”

27. According to Brady v. Maryland, 373 U.S. 150 (1972) and United States v. Agurs, 427

U.S. 97 (1976), the State is required to immediately turnover any and all material favorable

to the Defense on the issue of guilt and punishment. The fact that the two Co-Defendants

have not implicated Ms. Estefano as having any knowledge of the underlying fraud clearly

and unquestionably constitutes “Brady” information.

28. Finally, in addition to the State’s obligations under the rules, there are three outstanding

Court orders compelling the State to turn over these statements.

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29. The State’s lackluster effort in complying with its discovery obligations is delaying the

discovery process and the defense investigation. Therefore, the Defense requests that this

Court order the State to turnover an UNREDACTED COPY of these statements

IMMEDIATELY.

Deposition Questions Concerning Discussions with Assistant State Attorney Bill

Kostrzewski

30. The State’s assertion of a “work product privilege” objection has absolutely no basis.

31. Rule 3.220 (g)(1) defines “work product” in that the rule states “[D]isclosure shall not be

required of legal research or of records, correspondence, reports, or memoranda to the extent

that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney

or members of their legal staff.”

32. Conversations Detective Baluja had with Assistant State Attorney Bill Kostrzewski are

not work product as defined and discussed in the rule. Thus, the objection has no basis, and

the Detective has a duty to answer the questions.

Statements of Co-Defendant Romney and Martinez During Debriefings

33. Detective Baluja’s refusal to answer certain questions about what the Co-Defendants have

stated as to their involvement in the case on the basis of “ongoing investigation” is utterly

absurd.

34. The State filed the information on October 3, 2008. Thus, the State made the decision to

initiate criminal proceedings against Ms. Estefano. The State must therefore stand by its

decision and must fully comply with its discovery obligations.

35. Ms. Estefano has a right to a speedy trial and a right to fully and fairly investigate the case

and prepare a proper defense.

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36. The State is violating these rights with impunity, and it must be stopped. If the Court

allows the State’s witnesses to refuse to answer basic and relevant questions, this Case will

never be ready for trial and will remain in indefinite suspension.

WHEREFORE, the Defense requests this Honorable Court to order the following:

a. Immediately produce any and all statements of Martinez and Romney without

redaction;

b. Immediately produce any and all notes of interviews of Martinez and Romney

without redaction;

c. Overrule the State’s objection of a “work product privilege” and order all of the

State witnesses to answer questions concerning conversations they have had with

Assistant State Attorney Bill Kostrzewski;

d. Overrule the Detective’s objection of “ongoing investigation” and to answer any

all questions regarding their interviews of the co-defendants and witnesses in the

case.

e. Tax against the State and/or Miami-Dade County Police Department the costs

incurred in the taking of Detective Baluja’s deposition and the necessary re-taking

of his deposition.

Respectfully submitted: