Filing # 187022986 E-Filed 11/29/2023 04:41:53 PM

IN THE CIRCUIT COURT OF THE

FOURTH JUDICIAL CIRCUIT, IN
AND FOR DUVAL COUNTY, FLORIDA

STATE OF FLORIDA CLERK NO.: 162023CF002862AXXXMA

v.
DIVISION: CR B
MARIO ENRIQUE FERNANDEZ SALDANA

STATE’S RESPONSE TO DEFENDANT’S MOTION TO DISQUALIFY

THE FOURTH JUDICIAL CIRCUIT OFFICE OF THE STATE ATTORNEY

The State of Florida, by and through the undersigned Assistant State Attorney, files this response

in objection to the Defendant’s Motion to Disqualify the Fourth Judicial Circuit Office of the State

Attorney (“Motion”). In support of this objection, the State of Florida would show the following grounds:

A. Introduction

The Defendant’s Motion improperly, and without lawful grounds, seeks to disqualify the prosecutor

and the entire State Attorney’s Office of the Fourth Judicial Circuit based upon a third-party vendor’s

inadvertent and brief oversight in uploading a massive amount of data to an eDiscovery platform without

labeling the confidential communications. The oversight, which involved uploading a few emails and one

text between the Defendant and his attorney(s), was an unintentional act by the third-party vendor. The

prosecutor, once notified, observed the oversight quickly, and consistent with her ethical duties, contacted

the defense teams to alert them to the oversight and immediately disabled the platform to ensure none of

the emails or the text were reviewed by anyone. No one from the prosecution team or the State Attorney’s

Office reviewed any privileged emails or texts. Courtesy, cooperation, integrity, fair play, and abiding by

a sense of honor are paramount for preserving the integrity of the profession and to ensuring fair, efficient,

and effective administration of justice for the public. The prosecutor’s actions in quickly correcting a

third-party vendor’s oversight and shutting down the platform, which prevented dissemination of the

emails and the text, while alerting the parties involved, was consistent with the professionalism that all

Florida attorneys should strive to attain.

ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 11/30/2023 10:43:41 AM

 B. Relevant factual history

The State obtained search warrants for the cell phones and devices of Mario Saldana (“Saldana”)

and Shanna Gardner (“Gardner”). Jesse Dreicer (“Dreicer”) and Hank Coxe (“Coxe”) filed a motion for

protective order to prevent the State from reviewing the search warrant returns on all devices based on

invocation of marital privilege and attorney-client privilege. A hearing was held before the Honorable

Judge Charbula. The State was successful regarding the invocation of the marital privilege. The State and

the defendants reached an agreement regarding the issue of attorney-client privilege. The State obtained

an independent agent from the Secret Service (“Agent”) to act as a taint agent for all the devices and all

downloads. All returned data was sent to the Agent, who removed all attorney-client communications

which included e-mails and texts messages. The Agent used a list of provided names, phone numbers, and

e-mail addresses from both law firms: Tassone, Dreicer & Hill (“Tassone Firm”) and Bedell, Dittmar,

Devault, Pillans & Coxe (“Bedell Firm”). During the investigation, the State only reviewed the de-tainted

device data received from the Agent.

The State also obtained a Google search warrant for Saldana, which resulted in a return with

multiple folders for Google categories, one of which was titled “emails.” The State “walled off” the file

titled “emails” in each return until the data could be sent to the taint Agent. The emails obtained from the

Google search warrant are still in the process of being reviewed by the taint Agent. However, the other

Google files were reviewed, which included photos, videos, and documents. Within one of the file folders

from the Google search return for Saldana, there was a document titled “Confidential Communications,”

which contained a spreadsheet with text messages between Henry Tenon (“Tenon”) and Saldana. There

were no attorney names, phone numbers, or emails listed on the spreadsheet. There were no attorney-

client communications included in this file folder or document.

The State utilized Nextpoint, a cloud-based eDiscovery and document review platform, to create

a portal where the data could be uploaded once it was de-tainted. Nextpoint sent a team to assist the State

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in uploading the discovery onto the platform. Nextpoint wanted to use an “original source” as much as

possible for the uploading process, which means they would upload the data from its original source rather

than from a copy of the original source to preserve the meta data that is included on an original source.

During the uploading process, Nextpoint inadvertently uploaded the original source of the search warrant

returns for the Google data as they had been stored on the detective’s computer, which were unredacted,

and they uploaded the de-tainted search warrant returns.

The original Google search warrant returns for the “emails” folder that were downloaded to the

detective’s computer have not been viewed by anyone from the State or from law enforcement. In fact,

the original search warrant returns for the “emails” folder remain zipped and compressed on the detective’s

computer. Additionally, the email folder is encrypted in such a way that even if opened, the contents of

the folder cannot be viewed without running it through special software to view it, otherwise, it would just

be raw data. Regardless, neither the State, nor law enforcement, have viewed any attorney-client

communications. This fact could have been easily discovered had anyone from the Tassone firm bothered

to ask the State. Once the State became aware of the disclosure of emails during the upload to the platform,

the process was halted at approximately four (4) terabytes of data and all parties were prevented access to

the platform. The State confirmed with the Public Defender’s Office that they did not view any of the

attorney-client emails. In fact, the Public Defender’s Office has not even activated access to the Nextpoint

platform. The State also confirmed with the Baez firm that although the data had been downloaded, only

police reports had been viewed; and no attorney-client emails had been viewed. Although it is the State’s

position, which is argued below in greater detail, that an evidentiary hearing is not necessary because

Saldana has failed to carry his burden in establishing actual prejudice, and thus has failed to demonstrate

grounds to disqualify the prosecutor or the State Attorney’s Office, should this Honorable Court disagree,

Nextpoint can testify about user downloads and reviews from the platform.

C. Saldana’s allegations

In section (i) of the Motion, the Defendant alleges that the court must disqualify the assigned assistant

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state attorney from prosecuting the defendant where the assistant state attorney obtained attorney-client

privileged information against the defendant and expressed intent to use such information against the

defendant at trial. (Motion, 9). In support of the Motion, the defense attorneys cite Martinez, Reeves, and

Nunez. (Motion, 9-10). In section (ii) of the Motion, the Defendant alleges that the court must disqualify

the entire state attorney’s office from prosecuting the defendant where the members of the state attorney’s

office disbursed attorney-client privileged information intended to use against the defendant at trial.

(Motion, 11). In support of the Motion, the defense attorneys cite Castro, Fitzpatrick, Martinez, Nunez,

Popejoy, and/or Reaves to support his request to disqualify the prosecutor and to disqualify the Office of

the State Attorney. (Motion, 11-13).

D. Saldana has the burden of proving the existence of an attorney-client privilege

Codified in §90.502, Florida Statutes (2023), “[t]he attorney-client privilege is the oldest of the

privileges for confidential communications known to the common law.” Nelson v. State, 347 So.3d 86, 88

(Fla. 3rd DCA 2021), citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The privilege was

developed to encourage “full and frank communication between attorneys and their clients and thereby

promote broader public interests in the observance of law and administration of justice.” Id. at 89. The

burden of establishing that the attorney-client privilege rests on the party claiming it.” Id.

The case sub judice involved an unusual fact pattern because generally when the State downloads a

suspect’s phone or computer as part of a criminal investigation, there are no attorney-client

communications on the devices because there has not been an arrest; and thus, an attorney has not yet been

hired. However, Saldana, of note, obtained a lawyer before he was arrested, which allegedly resulted in

attorney-client communications being on his phone and computer. Although the emails and the text at

issue in the instant case occurred prior to charges being brought against Saldana, the State concedes

Saldana has properly alleged an attorney-client relationship. However, establishing an attorney-client

relationship does not necessarily mean Saldana has established an attorney-client privilege regarding all

the documents that he claims are privileged.

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 The policy behind the attorney-client privilege, to promote freedom of consultation with legal

advisors, being an “exception to the general duty to disclose” and an “obstacle to the investigation of the

truth,” “ought to be strictly confined within the narrowest possible limits consistent with the logic of its

principle. Hoyas v. State, 456 So.2d 1225, 1228 (Fla. 3rd DCA 1984). Saldana has failed to prove every

email at issue involved attorney-client privileged information. For example, the Google document that

Dreicer alleges Saldana forwarded to his attorney that contained texts between Saldana and Tenon is not

a privileged document because no attorney was privy to the texts at their creation. To the contrary, no

attorney was privy to the texts between Saldana and Tenon until they were transferred to the attorney,

which was after they had been created and sent between Saldana and Tenon. The texts at issue are dated

from approximately September 2021 through July 2022. Documents which are given by a client to an

attorney while seeking legal advice are privileged in the hands of the attorney only if they were privileged

in the hands of the client. (Emphasis added). Tober v. Sanchez, 417 So.2d 1053, 1055 (Fla. 3rd DCA 1982).

No privilege having been accorded the emails between Saldana and Tenon when they were sent to each

other, none can be conferred by merely transferring them to Saldana’s attorney. Id. See also Jenney v.

Airdata Wiman, Inc., 846 So.2d 664, 667 (Fla. 2nd DCA 2003), wherein the court held that the plaintiff

cannot seriously contend that a document is protected by the attorney-client privilege simply because the

plaintiff subsequently gave a copy of a nonprivileged document to her attorney as such does not convert

the nonprivileged document to a privileged document.

E. Saldana has the burden of proving prosecutorial misconduct in a motion to disqualify

The party bringing a motion to disqualify bears the burden of proving the grounds for

disqualification. Hermann v. GutterGuard, Inc., 2006WL2591878, 6 (11th Circuit, 2006). A defendant’s

motion to disqualify a prosecutor is properly denied when there was no benefit to the prosecution and no

detriment to the defendant. McWatters v. State, 36 So.3d 613, 636 (Fla. 2010) (defendant’s motion to

disqualify the prosecutor for listening to privileged calls was denied because it was clear the defendant

knew the calls were being recorded and the calls did not provide any benefit to the prosecution and was

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not used to the detriment of the defendant). Of note, the cases cited by Saldana are factually distinguishable

from the case sub judice as discussed below.

(i) Castro v. State

In Castro, the defendant’s first defense attorney (“Tatti”) was subsequently hired by the state

attorney’s office to prosecute capital cases. Castro v. State, 597 So.2d 259 (Fla. 1992). The current

prosecutor called Tatti to discuss responses he could make to Castro’s pending motions. Id. Tatti testified

that he only discussed legal case law that he had uncovered in a different case. Id. The trial court denied

the motion to disqualify. Id. The appellate court reversed the penalty phase and held that the integrity of

the judicial process was brought into question because an attorney who previously represented a defendant

cannot assist the prosecution in any capacity. Id.

(ii) Nunez v. State

In Nunez, the technology director recorded and broadcast the confidential conversation between

the attorney and the defendant as they waited for a zoom hearing to begin. Nunez v. State, 665 So.2d 301

(Fla. 4th DCA 1995). The prosecutor acknowledged that he was in the courtroom during the broadcast but

claimed he was not really listening. Id. Subsequently, the prosecutor indicated he was going to use the

recording at trial. Id. The district court held that although the entire state attorney’s office could not be

disqualified, the prosecutor could be. Id.

(iii) Popejoy v. State

In Popejoy, the defense attorney was hired by the state attorney’s office. Popejoy v. State, 597

So.2d 335 (Fla. 3rd DCA 1992). After being hired by the state, Popejoy’s prior defense attorney was seated

at the state’s table during a hearing. Id. The court held that the law is unequivocal that an attorney cannot

participate in the prosecution of a person he or she previously represented in a criminal case. Id.

(iv) Reaves v. State

In Reaves, the current prosecutor previously represented the defendant in a different criminal case.

Reaves v. State, 574 So.2d 105 (Fla. 1991). The court noted that reversal would not be required if the prior

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lawyer hand handled a perfunctory task, such as a bond hearing. Id. However, the court cautioned the state

attorney’s office to properly screen the lawyer from other prosecutors. Id.

(v) State v. Saldana

In the instant case, unlike in Castro, Popejoy, or Reaves, the prosecutor did not previously

represent Saldana. Additionally, and unlike in Nunez, the prosecutor can establish through forensic

evidence that the emails and the text that were downloaded to the detective’s computer as part of the

search warrant return were never unzipped. Allowing an outside vendor to oversee the uploading of the

data to the platform, which resulted in alleged privileged emails being uploaded and unlabeled, is not

grounds for disqualification of the prosecutor. See Meggs in and for Second Judicial Circuit of Florida v.

McClure, 538 So.2d 518, 519 (Fla. 1st DCA 1989), wherein the court held that disqualification is not a

proper remedy for poor judgment. Therefore, the State submits that this Honorable Court should deny

Saldana’s Motion to disqualify the prosecutor because he has failed to demonstrate prosecutorial

misconduct because he has failed to prove that anyone from the prosecution team or law enforcement read

the emails or text at issue.

F. Saldana has the burden of proving actual prejudice

Saldana has the burden of proving demonstrable and actual prejudice. The disqualification of

government counsel is a drastic measure, and a court should hesitate to impose it cavalierly, even if

imposed as a sanction, unless disqualification is necessary. State v. Hayes, 997 So.2d 446, 448 (Fla. 4th

DCA 2008). A trial court cannot grant a motion to disqualify based upon an appearance of an impropriety

to uphold the integrity, confidence and independent of the third branch of the government. Id.

Additionally, neither assumptions, nor speculation, will suffice.

In the case sub judice, Saldana has failed to prove actual prejudice. In his motion, Saldana alleges

that the prosecutor indicated an intent to use confidential information at trial. (Motion, 10). However, the

evidence the prosecutor referenced, although labeled by Saldana as “confidential,” was in fact not

confidential as explained above. Additionally, as discussed above, the prosecutor has not reviewed the

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emails or text at issue, and thus has no plans to use any of them at trial. No actual prejudice results when

the evidence at issue is not used at trial. See Rogers v. State, 783 So.2d 980, 991 (Fla. 2001), wherein the

court noted that although the prosecutor’s action in approving an unlawful warrantless search of the

defendant’s jail cell was of grave concern, and the decision carried with it the potential to undermine the

essential fairness of our system of justice based on an adversarial system with procedures for gathering

evidence and searching for the truth, nevertheless, no specific prejudice resulted in the state attorney’s

office participating in the prosecution because the evidence unlawfully gathered was not used at the

defendant’s trial. Because the prosecutor has not reviewed the emails or text at issue, and has no intention

of using them at trial, Saldana’s Motion should be denied in its entirety.

G. Disqualification of the entire office would violate the separation of powers doctrine

Saldana also wants this Honorable Court to disqualify the entire State Attorney’s Office because

the prosecutor allegedly provided prejudicial information related to the pending criminal charges.

(Motion, 11 and 13). In support of his allegation that this Honorable Court should disqualify the entire

Office of the State Attorney, the Defendant cites Fitzpatrick and Martinez. However, as discussed below,

these cases do not support a disqualification of the entire office.

(i) State v. Fitzpatrick

In Fitzpatrick, the defendant spoke with a defense attorney while in jail but did not hire him.

Subsequently, the defense attorney became a prosecutor. State v. Fitzpatrick, 464 So.2d 1185 (Fla. 1985).

The Florida Supreme Court held that imputed disqualification of the entire state attorney’s office is

unnecessary when the record establishes that the disqualified attorney did not provide prejudicial

information relating to the pending criminal charge and did not personally assist in the prosecution of the

case. Id. In the case sub judice, Saldana has failed to demonstrate that the prosecutor either personally

reviewed prejudicial information or that the prosecutor provided prejudicial information to anyone else in

the State Attorney’s Office.

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 (ii) State v. Martinez

In Martinez, the prosecutor listened to two jail calls between the defendant and his lawyer. State

v. Martinez, 4 So.3d 712 (Fla. 4th DCA 2009). During the call, the defense attorney discussed several

subjects including trial planning and the testimony of several witnesses who had already been called at

trial and some that might be helpful. Id. The prosecutor discussed the calls with other prosecutors

throughout the office. Id. The trial court disqualified the state attorney’s office, and the State filed a

petition for writ of certiorari. The appellate court dismissed the writ and held that it would not be sufficient

to simply disqualify the prosecutor involved because the calls had been discussed with others throughout

the office. Id. Again, in the case sub judice, Saldana has failed to demonstrate that the prosecutor either

personally reviewed prejudicial information or that the prosecutor provided prejudicial information to

anyone else in the State Attorney’s Office. Furthermore, as held in Martinez, such information would not

be sufficient to disqualify either the prosecutor or the entire state attorney’s office. Regardless, an entire

office, which is what the Defendant is requesting, cannot be disqualified because one member of the office

may have a disqualifying interest. Meggs in and for Second Judicial Circuit of Florida v. McClure, 538

So.2d 518, 519-520 (Fla. 1st DCA 1989).

(iii) No prejudicial information was provided to others

In his Motion, Saldana claims that the disclosure of privileged information in the instant case is more

severe because at least twenty-five individuals, including co-defendant Tenon, obtained the e-mails.

However, as discussed above, computer forensic evidence demonstrates that no one accessed the e-mails

or the text at issue. Imputed disqualification of the entire state attorney’s office is unnecessary when the

record establishes that the prosecutor did not provide prejudicial information relating to the case because

a state attorney’s office is not like a law firm. Lot v. State, 13 So.3d 1121 (Fla. 3rd DCA 2009). Instead,

an appellate court cannot uphold an entire State Attorney’s Office being forced by an entirely separate

branch of the state government to recuse itself from exercising its constitutional prerogative to prosecute

a criminal matter in a county unless actual prejudice is shown. State v. Hayes, 997 So.2d 446, 448 and 450

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(Fla. 4th DCA 2008). Thus, disqualification of the State Attorney’s Office is proper only if specific

prejudice can be demonstrated. Farina v. State, 680 So.2d 392, 395 (Fla. 1996).

(iv) Saldana failed to demonstrate actual prejudice sufficient to disqualify the entire office

Actual prejudice is something more than the mere appearance of impropriety. Id. Therefore,

disqualification of a State Attorney’s Office is appropriate only to prevent the accused from suffering

prejudice he otherwise would not have. Id. at 396. In Farina, the prosecutor asked the clerk’s office to

assign a case to another division so that he could obtain a specific judge, which the clerk agreed to do even

though the request was contrary to an administrative order controlling the assignment of cases. Id. at 395.

The Florida Supreme Court noted that although they did not condone the prosecutor’s actions, the trial

court did not abuse its discretion in declining to disqualify the entire State Attorney’s Office because the

judge ultimately did not try the case, and thus, there was no actual prejudice. Id. at 395-396.

Under Florida’s Constitution, the decision to charge and prosecute is an executive responsibility and

the State Attorney has complete discretion in deciding whether and how to prosecute a case. State v.

Bloom, 497 So.2d 2, 3 (Fla. 1986), citing Art. II, §3, Fla. Const. The core of prosecutorial discretion is the

decision whether to charge an individual with a criminal offense in the first place. In re Wild, 994 F.3d

1244, 1260 (11th Cir. 2021). The Supreme Court has repeatedly reaffirmed the principle, which dates back

centuries, that the executive branch has executive authority and absolute discretion to decide whether to

prosecute a case. Id. Courts have imposed a substantial burden on defendants seeking the recusal or

disqualification of an entire office of prosecutors because of serious separation of powers implications

and broad concerns about the effective administration of justice. U.S. v. Goff, 2009WL223369, 2 (U.S.

Middle District, Ala. N.D. 2009). The tenth circuit held that it can only rarely – if ever – imagine a scenario

in which a district court could properly disqualify an entire prosecutor’s office and such disqualification

is almost always reversible error. U.S. v. Bolden, 353 F.3d 870, 875-876 (10th Cir. 2003). If the

disqualification of one government attorney could serve as the predicate for the disqualification of the

entire office, the administration of justice would be irreparably damaged. Grand Jury Subpoena of Ford

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v. U.S., 756 F.2d 249, 254 (2nd Cir. 1985). Screening procedures such as recusal of the affected attorney

and building a ‘wall’ between the affected attorney and the rest of the office is sufficient to remedy any

conflict of interest one attorney in the office might have. Goff at 2. Thus, because disqualification of the

entire office would violate the separation of powers, this Honorable Court should deny Saldana’s Motion

to disqualify the entire State Attorney’s Office.

H. Remedies

A remedy is only necessary if this Honorable Court finds that there was actual prejudice in the State’s

brief and unlabeled disclosure of the emails and text on the discovery platform before the platform was

disabled. However, the State’s position is that a remedy is unwarranted because the State rebutted

Saldana’s claim of actual prejudice. Regardless, the only two remedies Saldana has offered this Honorable

Court are to disqualify the prosecutor and to disqualify the entire Office of the State Attorney.

Disqualification of the prosecutor is an improper remedy because no one from the prosecution team, law

enforcement, or co-defendants accessed the emails or the text at issue. Furthermore, disqualification of an

entire state attorney’s office should be rare, and will usually result in a reversible error, because the

disqualification of a prosecutor should not be imputed to the entire office.

Because the State does not know what the emails or text contain, and because speculation is an

insufficient basis to grant relief, as an alternative to the remedies requested by Saldana, the State proposes

that this Honorable Court could review the emails and text at issue in camera to determine whether they

contain privileged attorney-client communications. If this Court determines that the emails and text do

contain privileged communications, a viable alternative remedy would be to suppress the State’s use of

the emails or text at trial. Of note, the State has already prohibited access to the emails and text at issue

from the discovery platform. Additionally, this Honorable Court could hold a hearing wherein the State

can use computer forensics to demonstrate that the e-mails and the text were not reviewed by the

prosecution team or law enforcement, which would rebut Saldana’s allegation of actual prejudice.

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 I. Conclusion

Saldana’s Motion is based upon an incorrect assertion that the prosecution team, law enforcement,

or co-defendants accessed emails and a text that contained attorney-client communications. Disregarding

the incorrect assertion, and the fact the Motion is based on speculation, this Honorable Court is confronted

with a single inquiry – whether Saldana has proven sufficient facts to justify the disqualification of the

prosecutor and the extraordinary action of ordering the disqualification of the entire State Attorney’s

Office of the Fourth Judicial Circuit. For the reasons argued above, the answer to that inquiry is a

resounding no because the breach in the upload process was quickly identified and immediately

neutralized. Thus, not only has Dreicer failed to prove sufficient facts to justify disqualifying the entire

State Attorney’s Office, but he has also failed to prove sufficient facts to justify disqualifying the

prosecutor. Furthermore, if a breach of privileged information occurred, Dreicer has failed to demonstrate

that other remedial measures would not be appropriate. Wherefore, the State respectfully requests that this

Honorable Court deny Saldana’s Motion to Disqualify in its entirety. The State also prays that the defense

will, in the future, ask the State simple questions rather than filing spurious motions.

MELISSA NELSON
STATE ATTORNEY

By : /s/ Alan Seth Mizrahi

Alan Seth Mizrahi
Assistant State Attorney
Fla. Bar. No. 122300
amizrahi@coj.net

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing response has been e-filed and e-served to the

Defendant’s attorneys, Frank J. Tassone, Esquire, Jesse N. Dreicer, Esquire, James P. Hill, Esquire, and

Shannon L. Day, Esquire, at jesse@tassonelaw.com, and a courtesy copy was e-served to the court, on

this 29th day of November 2023.

MELISSA NELSON
STATE ATTORNEY

By : /s/ Alan Seth Mizrahi

Alan Seth Mizrahi
Assistant State Attorney
Fla. Bar. No. 122300
amizrahi@coj.net

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