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Filing # 89200386 E-Filed 05/08/2019 03:58:03 PM

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT


IN AND FOR PALM BEACH COUNTY, FLORIDA

STATE OF FLORIDA

v. Case Nos. 2019MM002346AXXXNB


2019MM002348AXXXNB
ROBERT KRAFT,

Defendant.
______________________________

DEFENDANT’S RESPONSE TO STATE’S MOTION FOR CRIMINAL CONTEMPT


Defendant Robert Kraft (“Mr. Kraft”), by and through the undersigned attorneys, submits

this response in opposition to the State’s Motion to Hold Defense Counsel Alex Spiro and William

Burck in Criminal Contempt (“Contempt Motion” or “Mot.”). The instant response expands upon

the summary response Mr. Kraft filed yesterday, for the sake of immediately correcting the State’s

scurrilous, baseless submission.

PRELIMINARY STATEMENT

The State’s Contempt Motion rests on knowing and intentional misrepresentations to the

Court and slanders against defense counsel, all in bad faith and all sanctionable. The prosecutors

have now gone beyond trampling the rights of Mr. Kraft and into sullying the reputations of

defense counsel, directing their prosecutorial misconduct straight at the undersigned lawyers. The

actual substance of the State’s Contempt Motion is frivolous on its face. In actuality, the only

wrongdoing that has occurred before this Court is that of the State, and the State has only

compounded its wrongdoing with its latest submission. Nothing other than bad-faith efforts to

distract from its own misconduct and from fatal defects in its case can explain why the State would

be seeking criminal sanctions against defense counsel based on charges that have, quite obviously,

been concocted by the prosecutors. The very fact that the State waited nearly a week—until after

Mr. Kraft filed his post-hearing brief walking through how established facts and law call for

suppression of critical videos—before first hinting they perceived anything amiss in the defense’s

conduct at the hearing on May 1 confirms just how disingenuously, and absurdly, the State had to

labor to fabricate its supposed case for criminal contempt.

For reasons that should be readily apparent and are further detailed herein, the State has no

basis whatsoever to be faulting defense counsel in any respect, much less seeking criminal

contempt. As to the supposed direct contempt, defense counsel’s formulation of questions for
examination is irreproachable, especially considering that the relevant questions (a) substantially

and in all material respects corresponded with bodycam footage that the State steadfastly withheld

from the defense despite its repeated requests until yesterday, and (b) precisely tracked the only

account then-available to the defense (as furnished by counsel for another defendant) of what the

footage reflected. As to the supposed indirect contempt, the relevant out-of-court exchanges

occurred around officers and prosecutors who had all approached Mr. Spiro asking whether

officers could be released from testifying; far from doing anything untoward, Mr. Spiro simply

engaged Officer Kimbark and other officers to answer their inquiries and provide guidance on

whether and to what extent a witness needed to remain available. Considering that all relevant

facts were known to the State on May 1 or shortly thereafter, there is no plausible explanation for

why the State would have waited until yesterday, May 7, to raise any genuinely held perception

of misconduct, rather than bringing it to the Court’s attention at the first opportunity. Because the

State has nonetheless attempted to smear Messrs. Spiro and Burck and their reputations, we are

hereby correcting the record in all particulars, as set forth below and in accompanying affidavits

from relevant counsel.

We are compelled to note that the State’s bad faith is sanctionable, and we are respectfully

urging the Court to consider imposing sanctions at this point. The further this case has progressed

and the more evidence that has come to light, the more glaring and egregious the pattern of

prosecutorial misconduct has become. In the concluding portion of this response, we briefly

chronicle the astonishing, worsening pattern of misconduct that has been laid bare in the record

before the Court. By seeking now to impose criminal sanctions on defense lawyers who are simply

doing their jobs in zealously and ethically representing their client, consistent with the highest

legal standards that govern the legal profession, the prosecutors have gone a step further and

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transgressed any outer bound of professional civility and even common decency. The

prosecutorial misconduct in this case needs to stop, and sanctions are well warranted to stop it.

Accordingly, Mr. Kraft and his counsel are hereby respectfully asking that the State and its counsel

be sanctioned for filing the Contempt Motion, while reserving rights to seek other appropriate

relief, including dismissal.

LEGAL STANDARD

Part and parcel of its frivolity, the State has not even nodded at the strictures that attend

criminal contempt under Florida law. Criminal contempt is defined as “any act which is calculated

to embarrass, hinder, or obstruct the court in the administration of justice, or which is calculated

to lessen its authority or its dignity.” Ex parte Crews, 173 So. 275, 279 (Fla. 1937). It “requires

some willful act or omission calculated to hinder the orderly functions of the court.” Michaels v.

Loftus, 139 So. 3d 324, 331 (Fla. 3d DCA 2014). Its defining purpose is to “appropriately punish

for an assault or an aspersion upon the authority and dignity of the court or judge.” Ex parte

Earman, 95 So. 755, 760–61 (Fla. 1923). “[T]he punishment must be appropriate to the offense

and not excessive.” Id. at 760. “The power to punish for criminal contempt must be exercised

cautiously and sparingly.” Michaels, 139 So. 3d at 331.

Criminal contempt can either be direct or indirect. See Bank of N.Y. v. Moorings at

Edgewater Condo. Ass’n, Inc., 79 So. 3d 164, 167 (Fla. 2d DCA 2012). “Direct criminal contempt

sanctions are imposed for conduct that takes place in the judge’s presence[.]” Id. Before holding

a party in direct criminal contempt, the Court must afford the defendant due process by following

the procedural requirements in Florida Rule of Criminal Procedure 3.830. See State v. Diaz de la

Portilla, 177 So. 3d 965, 972–73 (Fla. 2015) (“The rules of criminal contempt must be strictly

followed so as to protect the due process rights of the defendant.”). Under “[t]he procedures

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delineated by [R]ule 3.830,” this Court would need to “inform the defendant of the basis for the

contempt and inquire whether the defendant has any cause to show why he or she should not be

adjudicated guilty and sentenced for contempt.” Id. It would also need to afford an “opportunity

to present evidence of excusing or mitigating circumstances.” Id. at 973. Any “failure to strictly

follow [these] procedures . . . constitutes fundamental error.” Swain v. State, 226 So. 3d 250, 251

(Fla. 4th DCA 2017). Like any crime, direct criminal contempt would need to be proven beyond

a reasonable doubt. See McRoy v. State, 31 So. 3d 273, 274 (Fla. 5th DCA 2010).

Indirect criminal contempt concerns conduct that occurs outside the judge’s presence and

may be punished only after following the procedures set forth in Florida Rule of Criminal

Procedure 3.840. See Baker v. Green, 732 So. 2d 6, 7 (Fla. 4th DCA 1999) (“An indirect criminal

contempt proceeding must comply with the procedural requirements of Florida Rule of Criminal

Procedure 3.840.”). In particular, Rule 3.840(a) contemplates that an order to show cause for

indirect criminal contempt might issue if and only if this Court has adequate knowledge of the

events in question. “Where the show cause order is, however, premised upon facts outside the trial

court’s knowledge, the order must be based upon an affidavit or sworn testimony of an individual

having personal knowledge of the essential facts.” De Castro v. De Castro, 957 So. 2d 1258, 1260

(Fla. 3d DCA 2007). Like direct criminal contempt, “[t]o prove indirect criminal contempt, there

must be proof beyond a reasonable doubt that the individual intended to disobey the court[.]”

Mayo v. Mayo o/b/o M.O.M., 260 So. 3d 497, 500 n.4 (Fla. 2d DCA 2018).

The absence of any colorable basis for criminal contempt should be readily apparent from

the State’s failure to grapple with any of the settled law, procedures, and standards that together

rule out criminal contempt—whether direct or indirect—in these circumstances. That noted, even

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if the law were set aside, as the State tries to set it aside, the State’s efforts to fault defense counsel

remain utterly baseless, as explained in the ensuing section.

ARGUMENT

I. MESSRS. SPIRO AND BURCK DID NOT ENGAGE IN DIRECT CRIMINAL


CONTEMPT

The Court should know from its own careful observation of the proceedings that neither

Mr. Spiro nor Mr. Burck did anything untoward, much less contemptuous, at the hearing on May

1. Indeed, given that the State’s prosecutors (and they alone) have all along been in possession of

the bodycam footage that supposedly reveals the contempt, it is nothing short of ludicrous for them

to contend that they observed direct contempt occurring, then waited six (6) days to raise it. What

the prosecutors have made clear by their delay is that they were not only violating their

constitutional obligations and pledges to turn over the bodycam footage at an earlier point, but that

they were out to compound their own misconduct by impugning defense counsel for their inability

to study the bodycam footage for themselves while representing Mr. Kraft at the suppression

hearing.

a. The Bodycam Video Demonstrates That Mr. Spiro’s Line Of Questioning Was
Entirely Accurate

The entire premise of the State’s contention that Mr. Kraft’s lawyers engaged in direct

criminal contempt is that they repeatedly asked Officer Kimbark whether he stated, during the

traffic stop that immediately preceded Mr. Kraft’s, that he would “make some shit up” regarding

a basis for that stop. See Mot. at 2–10. It must be noted, as an initial matter, that these were

questions posed to Officer Kimbark on cross-examination. Defense counsel were free to ask any

questions they wanted, provided they had a good-faith basis to do so. The prosecutors, in turn,

were free to object to the questions, which they did, Dkt. 137, Ex. C (“May 1, 2019 Hr’g Tr.”) at

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262:15–263:4, and the Court rightly recognized that this line of questioning was relevant and

appropriate in overruling the objections, id. at 263:7–10. And if Officer Kimbark had not made

any statement suggesting that he would fabricate a basis for the traffic stop, then he could respond

accordingly.

As the bodycam footage clearly demonstrates, however, Officer Kimbark did make such a

statement. The audio and video footage show that as Officer Kimbark prepared to pull over

Timothy Goering, another of the individuals charged in connection with the investigation of the

Orchids of Asia Day Spa, he asked other officers over the radio whether “anybody got anything

better than pulling out of that plaza?” Mot., Ex. D at 0:58–1:01. When one of the officers

responded in the negative and indicated that Mr. Goering had driven “like an angel” after leaving

the plaza, Officer Kimbark remarked, “Alright I’ll come up with something when I tell him.” Id.

at 1:11–1:13. The bodycam video thus supports Mr. Spiro’s line of cross-examination and on its

face demonstrates not only good faith, but that in fact the cross-examination substantively hit the

mark.

To the extent the State attempts to rehabilitate Officer Kimbark’s statement, it does so by

relying on a purported “transcription verbatim” prepared by the Town of Jupiter of preceding radio

transmissions involving other officers and detectives. Mot. at 5 and Ex. C thereto at 1. The defense

knew nothing of the purported substance of these radio transmissions until the State filed its

Contempt Motion yesterday because, like the body cam footage, it had concealed this evidence

until yesterday.

The State’s game here is obvious. Even before the May 1 hearing, the prosecutors knew

full well that the video corroborates the defense’s view that Officer Kimbark was willing to “come

up with something” to stop a vehicle that had left the Spa. May 1, 2019 Hr’g Tr. at 289:4–8 (“MS.

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ARCO: I am talking about the transmission that occurred before the stop of Mr. Kraft when he

was talking about what they were talking about. Because he did other stops before. I watched all

of their stops, so I know exactly what they’re talking about.”). The State is also fully aware that

their failure to turn this bodycam footage over weeks ago, despite their false representations to the

court they had no Brady material, has violated their obligations under the law and invited a claim

for prosecutorial misconduct. Dkt. No. 137, Ex. F (Apr. 30, 2019 Hr’g Tr.) at 11:18–22 (“MR.

KRIDOS: But beyond that, Judge, our position is clear. We hold it in the highest accountability

for that and we do not have any Brady or Giglio material that -- we don’t have any Brady or Giglio

material, Judge.”). In sum, it is clear that the State via the Contempt Motion is attempting to

distract the Court’s attention from the State’s own repeated pattern of misconduct and from the

legal defects in its case—and, as reflected in the State’s requested relief to “strik[e] from the record”

what the State knows to be highly problematic “rebuttal testimony, in its entirety, of Officer

Kimbark.” Mot. at 15.

b. Mr. Spiro Had A Good Faith Basis To Believe Officer Kimbark Stated He Would
“Make Some Shit Up”

Because the bodycam video confirms that the substance of Mr. Spiro’s questions—directed

at eliciting whether Officer Kimbark had said he was willing to manufacture a basis for making

the traffic stop that immediately preceded Mr. Kraft’s stop—was substantially accurate, it appears

that what the State is actually quibbling with is the wording of Mr. Spiro’s questions. Namely,

that Mr. Spiro asked whether Officer Kimbark had said he would “make some shit up,” when the

language on the video was that Officer Kimbark would “come up with something.”

Again, it bears repeating that this was cross-examination, and nothing prevented Officer

Kimbark from correcting Mr. Spiro and explaining that he had used other words to describe his

willingness to concoct probable cause. Even putting that aside, however, Mr. Spiro had a good-

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faith basis to believe that Officer Kimbark had said that he would “make some shit up.”

Specifically, on or about April 29, 2019, one of Mr. Spiro’s colleagues, Michael Packard, had a

phone call with Edward Reagan, the lawyer for Mr. Goering, regarding the Jupiter Police

Department’s traffic stop of Mr. Goering. During that call, Mr. Reagan stated that he had watched

the bodycam footage depicting the traffic stop of Mr. Goering, and that, on the video, one could

hear a voice ask Officer Kimbark what the basis would be for the stop, to which Officer Kimbark

responded, “It don’t matter, I’ll make some shit up.” See Ex. A (May 8, 2019, Affidavit of Michael

T. Packard (“Packard Aff.”)) at ¶¶ 3–4. Mr. Packard promptly relayed that information to other

members of Mr. Kraft’s legal team, including Mr. Spiro. See id. at ¶ 5. Mr. Spiro then contacted

Mr. Reagan directly to confirm whether the statement attributed to Officer Kimbark was accurate.

See Ex. B (May 8, 2019 Affidavit of Alex Spiro (“Spiro Aff.”)) at ¶¶ 3–5. Mr. Reagan reaffirmed

that it was. See id. at ¶ 5.

While it turns out that Mr. Reagan misremembered the precise wording of Officer

Kimbark’s statement regarding Mr. Goering’s traffic stop, the difference is inconsequential and

the substance is confirmed by the video—it in no way contradicts Mr. Spiro’s good faith in posing

the question as he did, and it certainly should not be occasioning any invocation of criminal

contempt.

c. The State’s Claim That Mr. Burck Aided And Abetted Criminal Contempt Is
Frivolous

As to Mr. Burck, the State claims that he engaged in direct criminal contemptuous conduct

by offering “inaudible” whispers to Mr. Spiro during Mr. Spiro’s examination of Officer Kimbark.

See Mot. at 8. Based on these whispers (which the State by its own account could not hear), the

State somehow alleges that Mr. Burck “participated with Spiro in the presentation and use of the

false evidence, with the intention of enhancing the defense’s legal position on its motion to

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suppress.” Id. Putting aside the fact that Mr. Burck’s private, inaudible communications with Mr.

Spiro were in no way nefarious, the Court (including the court reporter) did not hear (or transcribe)

these statements. As such, there is no plausible legal (or factual) basis to impose direct criminal

contempt upon Mr. Burck for statements that the State concedes could not be heard in the

courtroom. See, e.g., Davila v. State, 100 So. 3d 262, 263 (Fla. 3d DCA 2012) (reversing

conviction of direct criminal contempt where “the court did not hear” the statement); Woodie v.

Campbell, 960 So. 2d 877, 878 (Fla. 1st DCA 2007) (“To constitute direct criminal contempt,

however, the profane statement must be heard by the court and committed in the court’s actual

presence.”); Payne v. State, 486 So. 2d 74, 74 (Fla. 4th DCA 1986) (reversing conviction of direct

criminal contempt because the judge’s “conclusion was not based on what he actually heard”);

Barr v. State, 334 So. 2d 636, 637 (Fla. 2d DCA 1976) (“Here, as noted above, the trial judge did

not hear the comments of the alleged contemnor. There was, therefore no Direct criminal

contempt.”). The State’s claim against Mr. Burck is, quite literally, imaginary and farcical.

Moreover, because Mr. Spiro did not present false evidence nor engage in any wrongdoing

whatsoever, as explained above, there was no criminal contempt for Mr. Burck to aid or abet.

d. Mr. Burck Did Not Make Misstatements During The Hearing

Separately, the State claims that Mr. Burck also engaged in direct criminal contemptuous

conduct through certain purported misstatements he made during a colloquy about what video

evidence the State would agree to turn over to the defense and the Court. See Mot. at 8–10. In

particular, the State claims that Mr. Burck “knowing[ly] present[ed] [] false and misleading

accusations” about Officer Kimbark when, at least according to the State, he told the Court that he

had seen Officer Kimbark’s bodycam footage. Id. at 8. But that is not what Mr. Burck said.

Instead, Mr. Burck stated as follows:

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Mr. Burck: Your Honor, just to be clear, we don’t have the body cam at all. We
saw it one time and so it was based on our recollections. But we would be happy
for the Court to see the body cam of the Kraft stop and we would be happy for the
Court to see or read the body cam of the prior stop.

May 1, 2019 Hr’g Tr. at 289:14-19 (emphases added).

Mr. Burck’s reference to seeing “it one time” was not, as the State claims, a reference to

Officer Kimbark’s bodycam footage of Mr. Goering’s traffic stop. Ex. C (May 8, 2019, Affidavit

of William Burck (“Burck Aff.”) at ¶¶ 4–5. Mr. Burck, to be sure, had not seen that footage as of

May 1, 2019. Instead, Mr. Burck’s reference to seeing “it one time” was a reference to Officer

Kimbark’s bodycam footage “of the Kraft stop,” precisely as Mr. Burck said in Court and the

transcript accurately recorded. See id. at ¶ 4. At no point during the course of the three day

suppression hearing did Messrs. Burck or Spiro ever suggest to the Court or Officer Kimbark that

they had the footage or a transcript of Mr. Goering’s traffic stop. If the State was so eager to find

out how Messrs. Burck and Spiro knew about Mr. Goering’s traffic stop, it could have asked. But

it never did. It is ironic, to say the least, that the State would be pillorying Mr. Burck as it is for

an alleged misrepresentation and Mr. Spiro for an alleged semantic deviation even as the State

either misrepresents or neglects to read the judicial transcript from which it would derive its

supposed case for criminal contempt.

Again, the State’s real game is clear: It is attempting to manufacture a totally bogus case

for criminal contempt against Mr. Kraft’s defense counsel in order to distract from its own

inexcusable misconduct in failing to produce Officer Kimbark’s bodycam footage under Brady

and Giglio. It is now undisputed that, contrary to the State’s obligations and pledges, it did not

provide the key, requested footage to the defense until May 7, 2019—many weeks after the

materials were requested (and required to be produced) under Brady and Giglio and five days after

the self-imposed deadline set by the State. See id. at 290:11–291:2 (“THE COURT: How quickly

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do you think you can do that [i.e., produce the bodycam footage of the Goering stop]? MS. ARCO:

I’ve got it back on my desk. I mean, it’s literally in evidence.com, but I can go click on it in

evidence.com. THE COURT: So both defense and I can have it by tomorrow then? MS. ARCO:

Sure, yes.”). Evidently, the State did not want to produce Officer Kimbark’s bodycam footage of

Mr. Goering’s traffic stop because it knew that these videos corroborate the defense’s point that

Officer Kimbark was willing to “come up with something” to stop a vehicle that had left the

Orchids of Asia Day Spa. Having now produced this material to the defense, it only highlights

that the State was knowingly, serially mispresenting to the Court that it had no Brady or Giglio

materials, which, of course, thereby violated the State’s ethical obligations and perpetrated further

prosecutorial misconduct.

Finally, it is implausible for the State to suggest that defense counsel intended to commit a

“willful act or omission calculated to hinder the orderly functions of the court” through its

questioning of Officer Kimbark. Michaels, 139 So. 3d at 331. To the contrary, Mr. Burck

explicitly told the Court that he wanted nothing more than for the Court to review the footage for

itself. Specifically, Mr. Burck stated:

Your Honor, just to be clear, we don’t have the body cam at all. We saw it one
time and so it was based on our recollections. But we would be happy for the Court
to see the body cam of the Kraft stop and we would be happy for the Court to see
or read the body cam of the prior stop [of Mr. Goering].

May 1, 2019 Hr’g Tr. at 289:14–19 (emphasis added). That defense counsel asked the Court to

review the footage for itself further confirms they had no intention of deceiving this Court by

referencing statements recorded on that video, as the State well knows. See Burck Aff. at ¶ 5.

In short, nothing in the record so much as suggests that Messrs. Spiro and/or Burck engaged

in a “willful act or omission calculated to hinder the orderly functions” through its questioning of

Officer Kimbark regarding his recorded statements. Michaels, 139 So. 3d at 331.

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II. MR. SPIRO DID NOT ENGAGE IN INDIRECT CRIMINAL CONTEMPT

The State’s assertion that Mr. Spiro should be held in indirect criminal contempt based on

his out-of-court discussions with Officer Kimbark is just as unfounded as its arguments about

direct contempt. While the State attempts to paint a portrait of Mr. Spiro menacingly cornering

Officer Kimbark in an effort to threaten and intimidate him, any such portrayal is pure fiction. The

revisionist nature of the State’s narrative is amply demonstrated by the fact that Officer Kimbark

did not raise any concern or issue on the day of the hearing, nor did the State make any allegation

or seek any relief until six days after the proceedings had concluded (and notably, after the State

had received and reviewed Mr. Kraft’s post-hearing submission exposing the illegality and

unconstitutionality of law enforcement’s conduct in this case).

As the enclosed affidavits from defense attorneys Alex Spiro, Sandra Moser, and Jack

Goldberger all attest, the only reason that Mr. Spiro was speaking to Officer Kimbark or any of

the other police officers at all that day was because the officers themselves approached Mr. Spiro

to inquire whether they needed to remain at the courthouse and whether they were going to be

called or recalled as witnesses. See, e.g., Spiro Aff.; Ex. D (May 8, 2019, Affidavit of Sandra

Moser); Ex. E (May 8, 2019, Affidavit of Jack Goldberger). All Mr. Spiro did was respond to

Officer Kimbark and the others to provide guidance on whether and to what extent they might be

called or recalled. All of these conversations took place in the presence of multiple officers—

including Sergeant Boschen, the most senior law enforcement officer present 1 —and in many

instances, Assistant State Attorney Judith Arco. Far from being threatening or intimidating in tone,

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Sergeant Boschen in fact sent a text message to Mr. Spiro the following day to commend
him for being “a man of [his] word” and “at the top of [his] game.” See Spiro Aff., Ex. 1.

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the atmosphere in the hallway was amiable and light hearted, involving laughter and banter, to the

point that Officer Kimbark even joked that he would like a job working for the defense.

It is clear, therefore, that Officer Kimbark’s recollection of his encounter with Mr. Spiro in

the hallway was either inaccurate, or at least misunderstood, as the attached affidavits of defense

counsel abundantly demonstrate. There was nothing sinister or inappropriate about Mr. Spiro’s

brief encounter with Officer Kimbark and certainly no basis to hold Mr. Spiro in indirect criminal

contempt.

III. THE STATE’S PATTERN OF PROSECUTORIAL AND POLICE MISCONDUCT

The State’s latest submission should not obscure the pattern of prosecutorial misconduct

that has already become painfully clear, and becomes clearer with each passing day. The only

misconduct that should concern this Court is that of the State, extending from its State Attorney

for the 15th Judicial Circuit all the way down to its rank-and-file police officers and health

inspectors. Without belaboring all the instances of misconduct that are chronicled by this record

and by submissions to date, it seems only appropriate under the circumstances to highlight a few

aspects that bear the fingerprints of the very same prosecutors who have drummed up charges of

criminal contempt:

 Karen Herzog, a health inspector from the Florida Department of Health, was dispatched
to conduct a warrantless search of the Orchids of Asia Day Spa under the guise of a so-
called “routine inspection.” Dkt. No. 55, Ex. A at 5.

 A sworn affidavit was scripted for a highly invasive “sneak and peek” warrant by copying
and pasting from Martin County so as to misrepresent the actual facts of the affiant’s
experience, the Orchids of Asia Day Spa, and the Jupiter Police Department’s investigation
surrounding the same. Dkt. No. 137, Ex. B at 109:5–113:25; 123:25–125:1; 244:5–245:6;
246:8–19; 247:21–248:18.

 Unsupported allegations of human trafficking were pushed as part of a campaign to smear


Mr. Kraft and others at televised press conferences. See Dkt. No. 55, Exs. E and F.

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 Materials subject to disclosure under Brady and Giglio were studiously withheld. See Dkt.
Nos. 89, 114.

 Bodycam footage was also withheld, despite the defense’s repeated requests, only for the
prosecution to turn around and pillory defense counsel for posing questions that did not
precisely match the transcript known only to the State. See supra Section I.

 False and repeated assurances were offered by the prosecution, directly to this Court and
to a parallel judge, to the effect that the prosecution would not disclose the covert video
surveillance absent a court order, only for the prosecution to turn around and make a
unilateral attempt to release the videos in parallel criminal proceedings. See Dkt. No. 88
at 3–4, 7–8.

 Inquiries by defense counsel were never answered by the State, nor was any effort
ostensibly made even to investigate reported leaks and shopping of the videos by law
enforcement. See Gary Trock and Mike Walters, Exclusive: Robert Kraft Naked Spa Video
Being Shopped Around as Judge Halts Public Release of Tape, The Blast, Apr. 18, 2019,
available at https://theblast.com/robert-kraft-naked-spa-video-shopped-media/.

In light of the aforementioned, non-exhaustive list of misconduct by the State, Mr. Kraft

will, at the appropriate time, be filing a motion regarding the State’s bad faith and unethical

conduct, including, but not limited to, conduct listed above. Mr. Kraft and his undersigned counsel

also respectfully request that this Court consider imposing sanctions specifically in connection

with the filing of the Contempt Motion by the State and its counsel. One way or another, the

conspicuous, mounting pattern of prosecutorial misconduct should be put to a stop.

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Respectfully Submitted,

ATTERBURY, GOLDBERGER & WEISS, P.A.

By: /s/ Jack Goldberger .


Jack Goldberger
250 Australian Ave. South, Suite 1400
West Palm Beach, FL 33401
(561) 659-8300

QUINN EMANUEL URQUHART


& SULLIVAN, LLP

William A. Burck (admitted pro hac vice)


Alex Spiro (admitted pro hac vice)

williamburck@quinnemanuel.com
1300 I Street NW, Suite 900
Washington, D.C. 20005
(202) 538-8000

alexspiro@quinnemanuel.com
51 Madison Avenue, 22nd Floor,
New York, NY 10010
(212) 849-7000

Attorneys for Defendant Robert Kraft

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed with the

Clerk of Court using the Florida Courts E-Filing Portal and served via E-Service to Assistant State

Attorney Elizabeth Neto and Judy Arco, on this day, May 8, 2019.

By: /s/ Jack Goldberger .


Jack Goldberger
250 Australian Ave. South, Suite 1400
West Palm Beach, FL 33401
(561) 659-8300
Exhibit A
AFFIDAVIT OF MICHAEL T. PACKARD

I, Michael T. Packard, being duly sworn, affirm under the pain and penalty of perjury that

the following is true and correct, to the best of my knowledge, information, and belief

1. I am an attorney at the law firm of Quinn Emanuel Urquhart & Sullivan LLP

(“QE”). Prior to joining QE in 2018,1 spent approximately four years working as an Assistant

Lfnited States Attorney at the United States Attorney’s Office for the District of Maryland.

2. I am one of several QE lawyers representing Robert Kraft in connection with

misdemeanor criminal charges now pending in the County Court of the Fifteenth Judicial Circuit,

Criminal Division, in and for Palm Beach County, Florida, under Case Numbers

2019MM002346 and 2019MM002348.

3. In connection with my representation of Mr. Kraft, I had a phone call on or about

April 29, 2019 with Edward Reagan, Esq., an attorney for Timothy Goering, another of the

individuals charged in connection with the investigation that led to the aforementioned charges

against Mr. Kraft.

4. During that phone call, Mr. Reagan advised that he had watched a video that

depicts the traffic stop of Mr. Goering. Mr. Reagan advised me that, on the video, one could

hear a voice ask Officer Scott Kimbark what the basis would be for the stop of Mr. Goering, and

that Officer Kimbark could be heard to respond, “It don’t matter. I’ll make some shit up.

(conf d)

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5. On April 29, 2019,1 advised other members of Mr. Kraft’s QE legal team of this

phone conversation, including attorneys Alex Spiro and William Burck.

Michael T. Packard

STATE OF MASSACHUSETTS

Sworn to (or affirmed) and subscribed before me this day, May ^ , 20 'S by

%
Z
ignature If Notary)

(Name of Notary)

CROSBY D. ENRIGHT
Notary Public
COMMONWEAUH OF HASSACHUSETTS
My Commission Expires
December 12, 2025

2
Exhibit B
EXHIBIT 1
Exhibit C
AFFIDAVIT OF WILLIAM BURCK

1, William Burck, being duly sworn, affirm under the pain and penalty of perjury that the

following is true and correct, to the best of my knowledge, information, and belief:

1. 1 am an attorney at the law firm of Quinn Emanuel Urquhart& Sullivan LLP (“QE”).

Prior to my employment with QE, 1 served as Assistant United States Attorney in the U.S.

Attorney’s Office for the Southern District of New York from 2003-2005 and as Special Counsel

and Deputy Counsel to the President of the United States from 2007-2009.

2. I am one of several QE lawyers representing Robert Kraft in connection with

misdemeanor criminal charges now pending in the County Court of the Fifteenth Judicial Circuit,

Criminal Division, in and for Palm Beach County, Florida, under Case Numbers 2019MM002346

and 2019MM002348.

3. 1 was informed by my colleagues Michael T. Packard and Alex Spiro on or about

April 29, 2019, that an attorney for another defendant had informed them that Officer Scott

Kimbark said words to the effect of, “It don’t matter. I’ll make some shit up” on a video recording

depicting a traffic stop.

4. I had never seen the body cam video or heard the audio recording of the other

defendant’s stop prior to their disclosure to the defense on May 7, 2019.

5. 1 did not represent to the Court that 1 or anyone else on the defense team had seen

the video of the other defendant’s stop, heard the audio recording of the stop, or had a transcript

of either. In court, 1 said “Your Flonor, just to be clear, we don’t have the body cam at all. We

saw it one time and so it was based on our recollections. But we would be happy for the Court to

see the body cam of the Kraft stop and we would be happy for the Court to see or read the body

cam of the prior stop.” SeeEx. 1 (May 1, 2019 Hr’g Tr.) at 289:14-19. My references to the body

1
cam in the first and second sentences are to the footage of the Kraft stop, not the stop of the other

defendant. We have never received the footage of the Kraft stop. In the final sentence of the

excerpt, 1 am referring to both the footage of the Kraft stop and the stop of the other defendant.

6. The one time we saw the footage of the Kraft stop is well known to the

State. Detective Sharp showed Jack Goldberger, Mr. Spiro, and me the body cam video for the

stop of Mr. Kraft in March 2019 at the police station. Mr. Goldberger, Mr. Spiro and I met or

spoke with the prosecutors in this case several times after we saw the body cam footage of the stop

of Mr. Kraft, and during one of those discussions we informed the prosecutors that Detective Sharp

had shown us that footage at the police station. This was the body cam footage 1 was referring to

in the first and second sentences of the transcript excerpt in paragraph 5 above.

7. At no time did 1 believe Mr. Spiro lacked a good faith basis to question Officer

Kimbark as he did. In fact, I understood that both Mr. Packard and Mr. Spiro had been told the

same thing by counsel for the other defendant and they had every reason to believe it was credible.

William Burck

IN CHICAGO, ILLINOIS

Sworn to (or affirmed) and subscribed before me this day. May 20 by

OFFICIAL SEAL ■ (l^f^^ure of Notary)


VICTORIA A MORENO
NOTARY PUBLIC-STATE OF ILLINOIS '
MY COMMISSION EXPIRES:05/10/22 I
l/iC|0nV\ fVlft
(Name of Notary)

2
EXHIBIT 1
Page 161
1

2 IN THE COUNTY COURT OF THE FIFTEENTH

3 JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA

4 CASE NO.: 50-2019-MM-002346-AXXX-NB

5 DIVISION B: CNTY CRIM B (COUNTY)

7 STATE OF FLORIDA, )

8 Plaintiff, )

9 vs. ) VOLUME II

10 ROBERT KRAFT )

11 Defendant . )

12 --------------------------------/

13 TRANSCRIPT PROCEEDINGS HELD BEFORE

14 THE HONORABLE LEONARD HANSER

15

16

17 DATE: Wednesday, May 1, 2019

18 PLACE: Palm Beach County Courthouse


205 N. Dixie Highway
19 West Palm Beach, Florida 33401

20 TIME: 1:41 p.m. - 4:45 p.m.

21

22 LAWYERS' REPORTING, INC.


1655 Palm Beach Lakes Boulevard, Suite 405
23 West Palm Beach, Florida 33401
(561) 242-0023 (800) 326-9690
24 www.lawyersreporting.com
Copyright 2019 Lawyers' Reporting, Inc.
25 All Rights Reserved
Page 288
1 car that Mr. Kraft was in on January 19th.

2 Your Honor, I think that really sums up, and again, I

3 could go on, as Mr. Spiro said for hours on some of these

4 things, but I will stop there and I will allow the

5 State -- or, of course, if the Court has any questions or

6 I'll sit down and we'll have a post hearing brief ready

7 for you by tomorrow for Friday.

8 THE COURT: All right. Thank you. State?

10 CLOSING ARGUMENT ON BEHALF OF THE STATE

11 BY MS. ARCO

12

13 MS. ARCO: True to our word, Judge, I'll be five

14 minutes or less but I am true to my word.

15 Regarding, the body worn camera, the best evidence

16 with Kimbark would have been the body worn camera and they

17 should have presented the body worn camera and they didn't

18 and they didn't for a reason. Because it would have shown

19 somewhat differently than what they tried to have the

20 Court believe. But they didn't bring it. We don't have

21 it here because we were certainly not expected to do it.

22 But the State would not be opposed at all for you to watch

23 that particular body worn camera of Officer Kimbark.

24 THE COURT: So, the parties stipulate?

25 MR. BURCK: Yes, Your Honor.


Page 289
1 MS. ARCO: No, issue with that at all.

2 MR. KRIDOS: And you have that, Judge.

3 THE COURT: Yeah, I do.

4 MS. ARCO: I am talking about the transmission that

5 occurred before the stop of Mr. Kraft when he was talking

6 about what they were talking about. Because he did other

7 stops before. I watched all of their stops, so I know

8 exactly what they're talking about. So, I'm not talking

9 about the stop of Mr. Kraft. I have no problem with them

10 giving you the body worn camera of the radio transmission

11 that they had and did not show the witness when he was on

12 the stand so that he could clarify exactly what it is he

13 said. I have no issue to that.

14 MR. BURCK: Your Honor, just to be clear, we don't

15 have the body cam at all. We saw it one time and so it

16 was based on our recollections. But we would be happy for

17 the Court to see the body cam of the Kraft stop and we

18 would be happy for the Court to see or read the body cam

19 of the prior stop.

20 THE COURT: I have the body cam tape for the stop

21 itself. I think, if I understand correctly, what we're

22 being discussed is the part that became so contested

23 regarding the comments made or not made by Officer

24 Kimbark.

25 MS. ARCO: Right. My concern is because I didn't get


Page 290
1 to see a radio transmission, I'm not exactly sure what

2 stop they're talking about because there were other stops

3 that he made. So, I it's difficult for me to know exactly

4 what stop. I know what I watched. I know what I think

5 they're talking about, and it was a stop that occurred

6 before the stop of Kraft and it was somebody relaying

7 information to him and he couldn't hear and he makes the

8 comment back. That's the body worn camera that I viewed

9 in addition to the Robert Kraft.

10 THE COURT: Well, I guess -- does defense have that?

11 MR. SPIRO: No, no, no. We don't have it but we're

12 happy for the Court to listen to it.

13 MS. ARCO: I can get that.

14 THE COURT: As long as you can identify the portion of

15 that video which became so hotly contested today and you

16 can share it with the defense and send it to the Court as

17 well.

18 MS. ARCO: Sure.

19 THE COURT: How quickly do you think you can do that?

20 MS. ARCO: I've got it back on my desk. I mean, it's

21 literally in evidence.com, but I can go click on it in

22 evidence.com.

23 THE COURT: So both defense and I can have it by

24 tomorrow then?

25 MS. ARCO: Sure, yes.


Exhibit D
AFFIDAVIT OF SANDRA MOSER

I, Sandra Moser, being duly sworn, affirm under the pain and penalty of perjury that the

following is true and correet, to the best of my knowledge, information, and belief:

1. I am an attorney at the law firm of Quinn Emanuel Urquhart & Sullivan LLP (“QE”).

Prior to my employment with QE, 1 was a proseeutor with the U.S. Department of Justiee for more

than 12 years.

2. I am one of several QE lawyers representing Robert Kraft in eonnection with

misdemeanor criminal charges now pending in the County Court of the Fifteenth Judicial Circuit,

Criminal Division, in and for Palm Beach County, Florida, under Case Numbers 2019MM002346

and 2019MM002348.

3. 1 was present in court for the duration of the suppression hearing conducted in these

cases, including on May 1, 2019.

4. During breaks in the hearing that occurred throughout the day, I was present for

several interchanges between and among Mr. Spiro and the various officers and detectives who

were subpoenaed to testify and waiting in the hallway directly outside of the courtroom.

5. At no time did I witness Mr. Spiro speak to or approach an officer who was alone

in the hallway. There were at least two, and often several more, members of law enforcement

gathered together in the hallway throughout the day. More than once, 1 witnessed several officers

simultaneously engaging with Mr. Spiro.

6. At no time did 1 witness Mr. Spiro threaten, intimidate or attempt to extort Officer

Kimbark or any other member of law enforcement. To the contrary, the exchanges I witnessed

were amiable and even lighthearted. There was laughter and banter, and one or more officers

complimented Mr. Spiro for “being young and at the top of his game.”

1
7. Following Officer Kimbark’s morning testimony, when the court recessed for lunch,

Office Kimbark joked to Mr. Spiro and other members of the defense team, “Maybe you can get
55
me a job.

8. Following lunch, I witnessed Offieer Kimbark ask Mr. Spiro if Officer Kimbark

would have to stay and be recalled to the stand, to whieh Mr. Spiro responded, “It depends if they
55
[the State] call him [gesturing at Officer Nicholson].

9. When on a restroom break, I witnessed Assistant State Attorney Arco speaking one-

on-one with Officer Kimbark in the hallway before he was recalled to the stand.

Sandra Moser

IN THE DISTRICT OF COLUMBIA

Sworn to (or affirmed) and subseribed before me this day. May

/ V/
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2 o : oo E 1
9-30-23
o (Name of Notary)
■ '''^roFco^.

2
Exhibit E