ANTHONY FERRARI v. STATE OF FLORIDA

Citation: Not availableDocket: 14-0464

Court: District Court of Appeal of Florida; September 5, 2018; Florida; State Appellate Court

Original Court Document: View Document

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In the appeal case Anthony Ferrari v. State of Florida, the Fourth District Court of Appeal addresses multiple issues stemming from Ferrari's conviction for first-degree murder and conspiracy. The court identifies two critical errors warranting reversal. First, the trial court improperly denied Ferrari's motion to suppress historical cell-site location information (CSLI), which was obtained without a warrant and probable cause, violating the Fourth Amendment as established in Carpenter v. United States. Second, the court found a Richardson violation due to the State's failure to disclose essential discovery materials, including a codefendant's statements and exculpatory witness statements, breaching Florida Rule of Criminal Procedure 3.220. Consequently, the court reverses the conviction and remands for a new trial.

The background of the case includes the 2001 murder of businessman Gus Boulis, with Ferrari and codefendants Moscatiello and Fiorillo charged. After a lengthy investigative process, the State indicted the trio in 2005. Testimony linked Ferrari to the crime, particularly through observations made by a bystander and statements from Ferrari's employee, Dwayne Nicholson, who provided implicating evidence against Ferrari and Moscatiello. The trial against Ferrari proceeded after Moscatiello's attorney fell ill, leading to a separate trial for Moscatiello, who later successfully appealed his conviction. The facts relevant to Ferrari's trial are reiterated, ensuring that the review aligns with the details of the case.

Moscatiello and Ferrari were allegedly hired by Adam Kidan to protect him from Gus Boulis following Kidan's purchase of Boulis's business, SunCruz Casinos. Moscatiello concluded that Boulis needed to be killed to secure ongoing protection payments from Kidan. Key background details include Boulis's successful ventures in Miami Subs and SunCruz Casinos, and the $23 million cash transaction from Kidan to Boulis, with another $20 million owed but never paid. Tensions escalated between Kidan and Boulis, leading Kidan to seek help from Moscatiello to establish a show of connections for protection.

Moscatiello and Ferrari arranged a deal where Moscatiello would act as a "consultant," supplying goods in exchange for monthly protection payments. During a trip to Miami, discussions emerged about not paying Boulis the remaining money owed, and Moscatiello explicitly suggested that Boulis needed to be killed, prompting Dwayne Nicholson to feel pressured into agreement. The day after Kidan severed ties with Ferrari, Boulis was murdered.

James Fiorillo, an assistant to Ferrari, was implicated in the murder. On the day it occurred, he switched vehicles with Ferrari and had access to multiple phones belonging to Ferrari. Although a bystander witnessed the murder, they could not identify the assailants or the vehicles involved.

The partial license number linked to a black Mustang was confirmed, but no independent witnesses identified those present at the murder scene. Fiorillo, aware of the murder, visited Ferrari's home afterward, received a bag with a gun, and disposed of it. He then drove the Mustang to a repair shop. The following day, Fiorillo met Ferrari and Moscatiello at a hotel, where Moscatiello instructed him to report the Mustang as stolen, which he did after traveling to New York. In New York, Moscatiello reacted angrily when Fiorillo recounted the events surrounding the murder, instructed him to stay there, and Fiorillo was accommodated by Ferrari’s girlfriend before moving to a hotel. Fiorillo later worked for Moscatiello and returned to Florida in April, where he was arrested and charged with conspiracy to commit murder, initially believed to be the shooter. He accepted a plea deal to testify against Moscatiello and Ferrari in exchange for a six-year sentence. 

Kidan, returning to Florida post-murder, met with Moscatiello, who acknowledged the murder was unfortunate and described the plan to kidnap and kill Boulis, indicating multiple participants, including Fiorillo as the driver of the Mustang used. Kidan, who had financially supported Moscatiello and Ferrari for protection, expressed concerns about the car's involvement, especially since it was linked to his significant payments. After SunCruz’s bankruptcy in June 2001, Kidan was investigated by the FBI regarding the murder. In April 2004, he met Moscatiello in New York and suspected someone was cooperating with authorities. Moscatiello revealed that the shooter had died in another incident, which Kidan later confirmed was John Gurino. Kidan was convicted of wire fraud related to the SunCruz transaction in 2006, then sought to cooperate with law enforcement about the Boulis murder, leading to a reduced sentence. He testified against Ferrari, detailing the SunCruz dealings and the activities of Moscatiello and Ferrari. 

The day after the murder, Nicholson, recognizing Fiorillo’s association with the Mustang, contacted Crime Stoppers out of fear for his safety. He provided a statement to Fort Lauderdale police on February 9, 2001, and attempted to gather more information by meeting Ferrari while wearing a listening device, which Ferrari discovered.

Nicholson attempted to evade Ferrari despite being owed money for his work. Around Memorial Day, Ferrari’s assistant, Ben Potter, visited Nicholson to arrange a meeting with Ferrari, which occurred at Ferrari's mother’s house in Venice, Florida. During the trip, Fiorillo questioned Nicholson about potential violence, to which Nicholson expressed fear for his own safety. At the meeting, Ferrari criticized Fiorillo for his comments made during a New York trip. Afterward, Nicholson confronted Ferrari about the outstanding payment, leading Ferrari to call Moscatiello on speakerphone. Moscatiello's response included a violent suggestion regarding Nicholson and Fiorillo. Nicholson ultimately never received the owed money but did receive a six-figure Crime Stopper’s reward for his cooperation and testified against Moscatiello.

In a related context, Joseph Marley, seeking leniency for a drug trafficking charge, offered information on Moscatiello to the state attorney. Marley had previously worked in New York clubs associated with John Gotti and encountered Moscatiello. He recounted a conversation with John Gurino, who implied involvement in the murder of Gus Boulis, which Marley later learned about through news reports. Additionally, testimony from Nick DiMaggio, a federal witness under protection, indicated that Moscatiello had once offered him $100,000 to kill Boulis, a proposition he found offensive. DiMaggio, who had known Moscatiello and Gurino for years, later learned of Boulis's murder and was informed by Moscatiello that the deed had been done. DiMaggio testified as part of a plea agreement, which prevented charges against him for his past crimes, resulting in a reduced sentence and his entry into witness protection.

Paul Brandreth, a convicted felon in federal prison for drug offenses and second-degree murder, testified that Ferrari solicited him to kill three individuals: a black man named Nicholson, Ferrari’s girlfriend, and a person named Fiorillo, who was under investigation by law enforcement. Brandreth traveled to New York to stay with Fiorillo for protection, where he was picked up by Moscatiello, who referenced the murders as a "hat trick." Brandreth requested a firearm, using the code word "paintbrush," but Moscatiello only offered a shotgun from a previous job. Brandreth received no further instructions or weapon before returning to Florida.

In exchange for his testimony, prosecutors agreed to reduce Brandreth's prison time by aligning the end of his state sentence with his federal sentence. The state presented evidence at Ferrari's trial indicating he owned multiple cell phones, including walkie-talkie-like Nextel phones, and various cars that were frequently used by those close to him. Notably, a .380 handgun linked to Ferrari was identified as the type used in the murder of Boulis. Expert testimony established that cell phone location data (CSLI) placed Ferrari’s phones near Boulis's office during the murder timeframe, with subsequent movements towards Miami Beach.

Ferrari testified in his defense, stating he met Nicholson through business and had known Moscatiello for years. He claimed Moscatiello approached him about finding a warehouse for a wine business and mentioned that Kidan wanted to hire security for the Sun Cruz boats, leading to Ferrari receiving monthly payments from Kidan for security services, despite having no experience in the field.

Ferrari consulted security expert Mark Martin to install listening devices in Boulis’s offices. On the night of Boulis's death, Ferrari was with his daughter at home when Fiorillo, initially picking up a Mustang, returned later, claiming he had killed Boulis. Nicholson advised Fiorillo to remain silent, but Fiorillo confessed to another of Ferrari's friends. Ferrari denied any involvement in planning Boulis's murder or hiring anyone to kill Fiorillo. He characterized Kidan as the "mastermind" behind the murder and accused Nicholson of lying about his involvement. Ferrari owned multiple cars, including the Mustang he bought for Fiorillo, and acknowledged that Fiorillo and Nicholson had access to his vehicles and phones. Although he lent Brandreth money, Ferrari insisted he did not hire him for any murder-related activities. A meeting at Ferrari's mother's house was intended to confront Nicholson about a robbery related to information Fiorillo shared. During cross-examination, the prosecutor highlighted that Ferrari had not disclosed these details to investigators prior to trial. Ultimately, the jury convicted Ferrari of first-degree murder and conspiracy, sentencing him to life imprisonment without parole and an additional thirty years for conspiracy.

Ferrari's appeal includes a challenge to the denial of his motion to suppress historical cell site location information (CSLI) obtained from his phones, which the State used to establish his location on the murder night. The State secured CSLI data through subpoenas, with one company providing records under a court order following proper legal procedures. However, citing Carpenter v. United States, Ferrari asserts that acquiring CSLI data without a warrant violates his Fourth Amendment rights, as it constitutes a search requiring probable cause. The Supreme Court's ruling is binding in Florida, establishing that the CSLI acquisition in this case was unconstitutional.

The State argues that even if CSLI data is protected under the Fourth Amendment, the acquisition of this data should fall under the "good faith" exception to the exclusionary rule. This exception applies when police conduct a reasonable search based on existing law or statutes, even if those laws are later deemed unconstitutional. However, at the time of the search in 2001, there was no binding legal precedent indicating that CSLI data was protected by the Fourth Amendment, and the topic was not addressed in reported decisions. The trial court's denial of Ferrari’s motion to suppress relied on a later decision that held individuals do not have a privacy expectation in historical CSLI, but this was decided after the search occurred, and even then, the legal landscape was noted as unsettled.

The detective did not have case law to justify not obtaining a warrant and instead relied on an inapplicable statute concerning pen registers, which does not cover CSLI data requests. The Florida Supreme Court in Tracey v. State established that real-time CSLI requires a warrant based on probable cause, and also rejected the good faith exception when law enforcement lacked binding precedent. Similarly, in Carpenter, the U.S. Supreme Court ruled that historical CSLI acquisition must also meet the Fourth Amendment standards and emphasized the necessity of obtaining a warrant prior to compelling a carrier for CSLI data.

Thus, the acquisition of historical CSLI without a warrant constituted an illegal search, negating the good faith exception since the State did not rely on applicable legal authority. Additionally, Ferrari's challenge regarding a mid-trial discovery issue was upheld, as the defense uncovered significant evidence that could have altered their strategy, warranting a reversal due to a Richardson violation.

Nicholson revealed during cross-examination that he had worn a wire while speaking with Fiorillo, surprising both the prosecutor and defense. This prompted the court to excuse the jury and hold a Richardson hearing. Nicholson testified that his van was wired by police, and only one conversation with Fiorillo was recorded. The court instructed the prosecutor to investigate recordings. The next day, defense attorneys contacted Dohn Williams, Fiorillo's former attorney, who stated he had previously requested all tapes from the Ft. Lauderdale Police Department, with some still in his office. The defense brought several of these tapes to court, noting that there were no police reports indicating their existence. Some tapes included conversations from August 2001, with one tape containing Nicholson stating, “they think I’m involved,” which could potentially impeach his credibility.

The prosecutor acknowledged the detective's failure to document the wiring of Nicholson's van, believing it was covered in Nicholson's statements. Ferrari’s attorney requested to un-sequester the jury to listen to the tapes, noting that Williams had not mentioned them during Nicholson's deposition. The court allowed further cross-examination of Nicholson before adjourning for attorneys to review the tapes. At a subsequent hearing, defense counsel provided five transcribed tapes and several un-transcribed tapes, including one featuring Curtis Jackson discussing a plot to kill Boulis and another where Orlando Torrens claimed Fiorillo confessed to the murder.

Counsel argued there was a Richardson violation and requested a continuance for further discovery, suggesting possible Brady violations. The State presented a letter from Williams indicating he had requested copies of the taped statements, claiming this demonstrated no discovery violation occurred. The prosecutor highlighted a 2009 supplemental discovery pertaining to jail cell conversations between Ferrari and Fiorillo, asserting that a copy of the tapes would be provided to Williams for distribution to other defense attorneys.

The trial court concluded that no Richardson violation occurred, as Williams was the primary distributor of discovery materials to other defense attorneys, based on a 2009 agreement regarding discovery. The court presumed that Williams did not inform the attorneys about certain tapes because they were deemed non-evidentiary. The court noted that Williams was recognized as the lead in acquiring the tapes and DVDs from 2009, and he had possession of tapes listed in the police property receipt from 2006 to 2013, leading to the finding of no discovery violation. However, defense counsel objected to the characterization of Williams as having the authority to distribute the 2006 tape request and sought a mistrial or continuance to review all tapes with their clients. Williams testified that he had no agreement with other defense attorneys regarding the 2006 tapes and was not responsible for notifying them about them. The court denied all motions, asserting that Williams had informed the attorneys of the tapes' existence when he requested them.

Upon discovering a potential violation, courts must conduct a Richardson hearing to investigate the circumstances and assess any prejudice to the defendant. If a violation is found, the court evaluates whether it was inadvertent or willful, trivial or substantial, and if it caused harm. The parties disagreed on the standard of review, with the State arguing for an abuse of discretion standard and Ferrari advocating for de novo review when the finding is based on factual errors or legal misinterpretations. While Richardson’s criteria are typically reviewed for abuse of discretion, this discretion is only applicable after a proper inquiry. The court must determine if a violation occurred, which may require a hearing if factual disputes exist or may hinge on legal interpretations that do not necessitate a hearing. If a court wrongly concludes that there was no violation and does not address all Richardson criteria, the hearing is deemed inadequate. A court’s determination of no violation must be supported by the record, with legal interpretations reviewed de novo and factual findings assessed for competent substantial evidence.

Discovery rules are designed to promote truth-finding and prevent surprise at trial, as established in Scipio v. State. Full and fair discovery is vital, necessitating adherence to both the technical and the spirit of these rules in criminal and civil cases. The State must extensively fulfill its discovery obligations, including disclosing names and addresses of individuals with relevant information, written or recorded witness statements, and any material evidence that may negate a defendant's guilt. Courts have ruled that the State must disclose evidence of debatable exculpatory value, even if it believes the evidence is not pertinent. The State is charged with knowledge of evidence held by law enforcement and must provide comprehensive discovery upon request.

Case law reinforces the State's duty to furnish full discovery, including inculpatory statements made by the defendant. Merely providing the name of a witness is insufficient; the substance of any relevant statements must also be disclosed. For instance, in a cited case, failure to provide an inculpatory statement while offering exculpatory information resulted in a reversal, emphasizing the necessity for substantive disclosure.

Additionally, the State is obligated to disclose the substance of any statements made by a codefendant, with failure to do so constituting a discovery violation. Specific instances are noted where the State did not provide critical statements from codefendants or exculpatory information, such as confessions or relevant witness statements, which could hinder the defense's preparation for trial.

Statements made by Nicholson and Fiorillo are referenced in property receipts from the Fort Lauderdale Police, but Torrens' statement lacks substance and does not indicate a confession by a co-defendant. Notably, the property receipts do not mention Curtis Jackson's statement at all, and neither Torrens nor Jackson appears in the State’s response to discovery. The State did not meet its discovery obligations, constituting a discovery violation. Despite this, the trial court found no violation based on the fact that tapes of the statements were provided to Fiorillo's attorney. This was deemed inadequate, as the essence of the statements was not disclosed to enable any defendant to assess their relevance. Similar to the precedent set in Blatch, it is not the defendant's responsibility to seek out this information through deposition; the State must proactively inform the defense of the substance of statements. The trial court's conclusion regarding compliance with discovery obligations was legally erroneous, as merely providing the statements without their substance does not fulfill the requirement. Furthermore, the court's finding that no Richardson violation occurred due to the delivery of tapes to a co-defendant's attorney is unsupported, as no prior agreement existed for such distribution in 2006. A discovery violation is subject to harmless error analysis, and the State carries the burden to prove that the defense was not prejudiced. The Florida Supreme Court emphasizes that any determination of harmlessness must consider the reasonable possibility of procedural prejudice to the defense stemming from the discovery violation.

The defense is considered procedurally prejudiced if there is a reasonable possibility that the trial preparation or strategy would have significantly differed without the violation, particularly if it could have benefitted the defendant. An appellate court can only deem the error harmless if it can assert beyond a reasonable doubt that no procedural prejudice occurred. In this case, the discovery violation clearly prejudiced the defense of Ferrari, as it prevented him from using vital evidence that could have impeached a key witness, Fiorillo, who had previously confessed multiple times to others. The absence of this evidence may have altered the defense's strategy, including the decision to have Ferrari testify. Additionally, statements made by Curtis Jackson regarding a potential hire to commit the murder could have opened new avenues for defense investigation. The burden to prove lack of prejudice lies with the State, which it failed to meet, necessitating a reversal of the conviction.

The document also addresses issues related to the prosecutor's comments on Ferrari's post-arrest silence during cross-examination and closing arguments. While some comments were inappropriate under Florida law, the court found that the defense failed to preserve the issue by not objecting to most of the comments, particularly those related to post-arrest silence. Although an improper comment was made, any resulting error was deemed harmless. The trial court's denial of the motion to suppress cell site location information (CSLI) was erroneous, as it was obtained without a warrant based on probable cause. The court also erred in not recognizing a discovery violation concerning the lack of disclosure of a codefendant's statements. Consequently, Ferrari's conviction is reversed, and the case is remanded for a new trial.