2000 FEE 22 A 10: 47

No. SC05-383 C\-ERi.(, S!IT"REF1E C O U R T

NOEL DOORBAL, Appellant,

VS.

STATE OF FLORIDA, Appellee.

No. SC06-1490

NOEL DOORBAL, Petitioner,

VS.

WALTER A. MCNEIL, etc., Respondent.

[February 14,20081

MOTION FOR LEAVE TO FILE DECLARATION

Jeffrey Tew, a member of The Florida Bar, moves the Court for leave to file his attached

Declaration regarding whether or not Hon. Alex Fener, former Circuit Court Judge, appeared in

the sentencing hearing of Marcelo Schiller's federal criminal case voluntarily or pursuant to a

subpoena. In support of this Motion I would submit the following:

1. Justice Pariente, in her specially concurring opinion in this case states

"Additionally, there is no evidence in the record that Judge Fener was subpoenaed or otherwise

TEW CARDENAS LLP Four Seasons Tower, 15th Floor, 1441 Briclcell Avenue, Miami, Florida 33131-3407 . 305-536-1112

forced to testify on behalf of Schiller." (Opinion p. 71) and "Accordingly, I believe that Judge

Ferrer's voluntary testimony on behalf of Schiller came dangerously close to violating Canon 2B

of the Code of Judicial Conduct. Thus, absent a subpoena, this testimony would have been in

violation of the Judicial Code of Conduct." (Opinion p. 72)

2. Although I was Mr. Schiller's counsel who questioned Judge Ferrer at the

sentencing,the transcript of which is quoted f?om in this Court's opinion, no counsel for any of

the parties involved in this case contacted me on this issue and it therefore appears that Justice

Pariente reached her findings and conclusions based on an incomplete and inadequaterecord. I

believe that in fairness to Judge Ferrer the Court should consider my Declaration on that issue

and whether Justice Pariente's comments should be modified.

Respectfblly submitted, TEW CARDENAS LLP The Four Seasons Tower, 15th Floor 1441 Brickell Avenue Miami, Florida 33131 Telephone: 305-536-1112 Facsimile: 305-536-1116

L/ Florida Bar No. 121291

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoingwas mailed this 21''

day of February, 2008, to: Melodee A. Smith, Esq., Attorney for AppellantlPetitioner, 101 N.E.

3'd Avenue, Suite 1500, Ft. Lauderdale, FL 33301 and Bill McCollum, Attorney General,

Tallahassee,FL Office of Attorney General, State of Florida, The Capitol PL-01, Tallahassee,FL

TEWCARDENASLLP Four SeasonsTower, 15th Floor, 1441Brickell Avenue, Miami, Florida 33131-3407 305-536-1112

32399-1050 and Sandra S. Jaggard, Assistant Attorney General, Attorneys for Appellee/

Respondent, 99 N.E. 4th Street Miami, FL 33132; phone (305) 961-9001; Fax (305) 530-7679.

'i?& CJ effiey Tew

TEWCARDENASLLP Four Seasons Tower, 15th Floor, 1441 Brickell Avenue, Miami, Florida 33131-3407 305-536-1 112

DECLARATION OF JEFFRIEY TEW, ESO.

1. I have practiced law in Florida since 1969 and am currently a partner in the law firm. of Tew Cardenas LLP, 144 1 Brickell Avenue, Miami, Florida 3 3 1 3 1.

2. I was Marcelo S. Schiller's ("Schiller") attorney in the following matters:

(a) Florida State civil action (Marcelo Schiller v. John Carl Mese et al., Circuit Court, Dade County, Florida, Case No. 96-09544 02) brought by Schiller against Jorge Delgado, Daniel Lugo, Noel Doorbal (the kidnappers) and others. The kidnappers, on or about November 15, 1994, had kidnapped Schiller and held him captive for approximately 30 days in a warehouse during which captivity they battered and physically and mentally tortured Schiller and forced him to transfer to them property and cash in excess of $1 million. The action sought damages against the kidnappers and an injunction to prevent them from transferring or otherwise disposing of any of the assets, funds or property the kidnappers had stolen from Schiller.

(b) A motion on behalf of Schiller in the State of Florida criminal prosecution of the kidnappers for the kidnapping and murder of two other persons, (State of Florida v. Doorbal. et. al., Dade County Circuit Court Case No. 95-17381) to recover cash and securities the kidnappers had stolen from Schiller.

(c) Defending Schiller in a federal criminal prosecution where in Schiller was accused of committing Medicare fraud as well as other crimes (United States of America v. Marcelo S. Schiller, United States District Court, Southern District of Florida, Miami Division, Case No. 98-0397 -CR-Gold).

3. Schiller was a State of Florida witness in the State of Florida criminal case wherein his kidnappers were convicted of murdering two people. Hon. Alex Ferrer was the Circuit Court Judge who presided over the murder case.

4. Schiller plead guilty in the federal Medicare case. On behalf of Schiller, I requested the federal court to grant a downward departure under Sec. 5K2.0 of the federal sentencing guidelines. As part of the evidence that I felt supported that request, I asked Judge Ferrer to be a witness to testify at the Medicare fraud sentencing hearing, held February 5, 1999, as to Schiller's role as a State's witness in the murder case and also as to what the kidnappers had done to him since those facts had been testified to in the state court murder case. It is my recollection that Judge Ferrer told me he would appear if I subpoenaed him, and it is my recollection that I did so.

5. I have searched my records and files regarding the subpoena to Judge Ferrer with the following results:

(a) After the Schiller cases were concluded I put his files in storage. Even though I requested the document storage facility I used to preserve Schiller's file when I moved

TEWCARDENASLLP Four SeasonsTower, 15th Floor, 1441 Brickell Avenue, Miami, Florida 33131-3407 * 305-536-1112

offices in July, 2004, the document storage facility inadvertentlydestroyed those files so I am unable to locate a paper copy of the subpoena. (My letter dated July 13,2004 to Iron Mountain requesting that Schiller's files, box numbers 23257426, 73031474, 73031473, 73031472, 73031470,73031471 and 73031475not be destroyed but delivered to my new office is attached to this affidavit as Exhibit A; the "Final Destruction Listing" Erom Iron Mountain dated August 24,2005 shows that, contrary to my instruction, the Schiller files were not delivered to my new office but were destroyed; a copy of that document is attached as Exhibit B to this affidavit.

(b) The computer program, that I used at the time, shows in the file of documents created for Schiller that on January 28, 1999 a "subpoena ferrer.doc7'. (A copy of the directory of computer records for Schiller is attached to this affidavit as Exhibit C.) The text of that document was not preserved in the computer file.

6. Based on my recollection of the events and a review of the computer record described above, I believe that Judge Ferrer appeared at the Medicare fraud sentencinghearing pursuant to a subpoena.

Pursuant to Section 92.525(2), F.S. and under penalties of perjury, I declare that I have read the foregoing and that the facts stated in it are true.

Executed on this 2othday of February, 2008.

effrey Tew

TEWCARDENASLLP Four SeasonsTower, 15th Floor, 1441 Brickcell Avenue, Miami, Florida 33131-3407 305-536-1 112

FOUR SEASONS TOWER 1~ T HFLOOR I441BRICKELLAVENUE

A T T O R N E Y S A T L A W MLAMI, FLORIDA 33131-3407 M I A M I . T A L L A H A S S E E . W A S H I N G T O N D C T 305.536.1112

F 305.536.1116 WWW.TEWLAW.COM

July 13,2004

VIA FAX 954-584-7840

Attention Customer Service Rachel Villamonte Iron Mountain 3821 S. W. 47 Avenue Ft. Lauderdale, FL 333 14

Re: Customer.No. F636 Jeffrey Tew,P.A. Expiration of Lease: 1/1/05

Dear Ms. Villamonte:

This will confirm our conversation regarding the termination of our lease.

Please provide to us the charges as follows:

Charges to deliver the following boxes to our new offices i.e. Tern Cardenas, Four Seasons Tower, 15"' Floor, 1441 Brickell Avenue, Miami, FL: 25421050; 23257431; and 23257452;

Charges to deliver the following boxes to our storage facility at 25 southeast 1st Avenue, 1st floor, contact Susan or Joel Tobias (305-375-8171): 23257426; 73031474; 73031473; 73031472; 73031470; 73031471; and 73031475;

Charges for destruction of the remainder of the boxes; and

The figure we can pay now to settle the remaining monthly lease payments.

Sincerely,

Exhibit A

T E W Q A R D E N A S REBAK K E L L O G G L E H M A N D E M A R I A T A G U E R A Y M O N D '& L E V I N E

MEMOF?YTRANSMISSION REPORT

TIME : JUL-13-04 04:39PM TEL NUMBER : +3055361116 NAME : TEYl CARDENAS REEIAK

FILE NUMBER : 119

DATE : JUL-13 04:33PM

DOCUMENT PAGES : 02

START TIME : JUL-13 04:38PM

END TIME : JUL-13 04:39PM

SENT PAGES : 02

STATUS : OK

FILE NUMBER : 119 *** S U C C E S S F U L T X N O T I C E *** ZV 1T-SEE-SOE r LOCE-I F T C C T l 4 o l d -l-?PJ 'Dnu-V IIJYOFR 1Wl 'AUYld Y?SI .am"& * u m S

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TEWCARDENAS,L.L.P. Four Seasons Tower, i51hFloor

1441 Brickell Avenue Miami, Florida 33131-3407 Telephone (305) 536-1112 Facsimile (305) 536-1116

Tallahassee Office Monroe Park Tower, Suite 725 101North Monroe Street Tallahassee, Florida 32301 Telephone (850) 841-7770

FACSIMILE COVER SHEET

DATE: July 13,2004

TO: Attn: Customer Service Rachel Villamonte Iron Mountain

FAX NO.: 954-584-2294

TELEPHONE NO.: 954-584-9334 ext. 1308

FROM: Jo Anne Brant, direct dial:.(305)536-8456 Assistant to Jeffrey Tew, Esq. Direct Dial 305-536-8452

RE: Jeffrey Tew, P.A.

CLIENTIMATTERNO.: 99999.950

NUMBER OF PAGES: Z(Inc1uding Cover Sheet)

In the event that you have not received this facsimilein its entirety,please contact our Fax Room at 305-536-3061. Thank you.

COMMENTS: Attachment: Jeffrey Tew, P.A., Customer No. F636 -Termination and

Instruction Letter.

THlS FACSIMILE CONTAINS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDEDONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS FACSIMILE IS NOT THE INTENDED RECIPIENT OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATIONOR COPYING OF THlS FACSIMILE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THlS FACSIMILE IN ERROR, PLEASE IMMEDIATELYNOTIFY US BYTELEPHONEAND RETURNTHE ORIGINALFACSIMILETO USATTHE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE. THANK YOU.

TEWCARDENASLLP Four Seasons Tower, 15th Floor, 1441 Brickell Avenue; Miami, Florida 33131-3407 305-536-1112

IRON M O T A I N FINAL Destructzon Listing

Page: 1 Report Date: 08/24/2005Report Time: 18:25

cust Id: F636 JEFFREY TEW, P.A.

Order Nbr: 53070963

$ Address: 201 SOUTH BISCAYNE BLM. SUITE 2960 MIAMI CENTER

MIAMI

. Instructions: ACCOUNT TERMINATION VIA DESTRUCTION, REQUEST #90376835-DJM

Item Div Id From Dt Order Description SKP Box Nbr Recpt Dt Dest Dt Rec. Cd File Cu. Ft Stat De t Id To Date Order Description Cust Box Nbr Seq~egerence #1 Reference #2 ....................................................................................................................................

000001 13102438 13102438

04/04/1995 UNDEFINED 1.20 DST

13102439 04/04/1995 UNDEFINED 13102439 .

1.20 DST

13102453 13102453

06/26/1995 UNDEFINED 1.20 DST

13102462 13102462

03/25/1996 UNDEFINED 1.20 DST

SCHILLER ROSEN 23257426 23257426

10/04/1997 UNDEFINED 1.20 DST

Cust Id: F636 JEFFREY TEW, P.A. $

Order Nbr: 53070963

Item DivId From Dt Order DescriptionDe t Id To Date Order DescriptionRegerence #I Reference ~2

IRON MO?JNTAIN FIN= Destructzon Lzsting

Page 4 Report Date: 06/24/2005Report Time: 18:25

Address: 201 SOUTH BISCAYNE BLVD. SUZTE 2960 MIAMI CENTER

MIAMI FL 33131

S W Box Nbr Recpt Dt Dest Dt Rec. Cd File Cu. Ft Stat cust BOX Nbr ~ e g

SCHILLER

SCHILLER

73031470 01/25/2000 UNDEFZNED 73031470

73031471 01/25/2000 UNDEFINED 73031471

1.20 DST

1.20 DST

5 IRON M O F A I N Page: FINAL Destructzon Lzsting Report Date: 08/24/2005

Report Time: 18:25

Cust Id: F636 JEFFREY TEW, P.A. $ Address: 201 SOUTH BISCAYNE BLVD.

Order Nbr: 53070963 SUITE 2960 MIAMI CENTER

MIAMI FL 33131

Item Div Id From Dt Order Description SKP Box Nbr Recpt Dt Dest Dt Rec. Cd De t Id To Date Order Description Cust Box Nbr ~exerence #1 Reference #2....................................................................................................................................

File ~ e q

Cu. Ft Stat

000048 SCHILLER 7303147273031472

01/25/2000 UNDEFINED 1.20 DST

SCHILLER 73031473 73031473

01/25/2000 UNDEFINED 1.20 DST

SCHILLER 73031474 01/25/2000 UNDEFINED 1.20 DST

D i r p r in t D i r e c t o r y o f \\miamil\k$\~epts\~ew~owak\~ewC ~ ~ ~ ~ ~ S \ S C H I L L E R \

\\mi amil\k$\~epts\TewNowak\Tew ~1ients\SCHILLER\ ..............................................................................................

Page 1

Exhibit C

subpoena ferrer-doc

Page 3

I

TEW.CARDENAS FOUR SEASONSTOWER

LLP 1~ T HFLOOR 1441BRICKELLAVENUEA T T O R N E Y S A T L A W

M I A M I - T A L L A H A S S E E . W A S H I N G T O N D C MIAMI, FLORIDA33131-3407 T 305.536.1112 F 305.536.1116

Writer's Direct Dial No. 305-536-8452 email: jt@tewlaw.com

February 2 1,2008 VIA FEDEX

Mr. Thomas D. Hall Clerk of the Court Florida Supreme Court 500 South Duval Street Tallahassee FL 32399-1927

Re: Noel Doorbal v. State of Florida Supreme Court of Florida, Case No. SC05-3 83 Doorbal v. Walter McNeil Supreme Court of Florida, Case No. SC06-1490

Dear Mr. Hall:

Enclosed for filing is my Motion for Leave to File Declaration with my attached Declaration.

JT:jab Enclosure

cc: Melodee A. Smith, Esq., 101 N.E. 3'd Avenue, Suite 1500 Ft. Lauderdale, FL 33301

Bill McCollum, Attorney General Office of Attorney General, State of Florida The Capitol PL-01 Tallahassee, FL 32399-1 050

Sandra S. Jaggard, Esq. Assistant Attorney General 99 N.E. 4th Street Miami, FL 33 132