IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JEFFREY TESTERMAN, Appellant, vs. STATE OF FLORIDA, Appellee.

__________________________________/ CASE NO.: 2D13-1014 L.T. No.: 12-CF-16037

ON APPEAL FROM THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA Daniel L. Perry, Circuit Court Judge APPELLANTS REPLY BRIEF

ALISON STEELE Florida Bar No. 0701106 amnestee@aol.com ANNE ARSENAULT Florida Bar No. 71409 aarsenault@rahdertlaw.com Rahdert, Steele, Reynolds & Driscoll, P.L. 535 Central Avenue St. Petersburg, Florida 33701 Telephone: (727) 823-4191 Fax: (727) 823-6189 Attorneys for Appellant

TABLE OF CONTENTS Table of Authorities................................................................................................ii Argument.................................................................................................................1 Conclusion ..............................................................................................................7 Certificate of Service ..............................................................................................7 Certificate of Compliance .......................................................................................8

TABLE OF AUTHORITIES

Cases City of Akron v. Cripple, 2003 WL 21697751 (Ohio Ct. App. 2003) .......................6 In re April 7, 1999 Grand Jury Proceedings, 749 N.E.2d 325 (Ohio Ct. App. 2000) .......................................................................6 News-Journal Corp. v. Carson, 741 So.2d 572 (Fla. 5th DCA 1999) .......................2 Smoliak v. Greyhound Lines, Inc., 2005 WL 3434741 (N.D. Fla. 2005) ..................3 State v. Famiglietti, 817 So.2d 901 (Fla. 3d DCA 2002) ..........................................4 State v. Roberts, 2005 WL 23358 (Ohio App. 8 Dist. 2005).....................................1 Ventura v. The Cincinnati Enquirer, 396 F.3d 784 (6th Cir. 2005) ...........................6 WTVJ-NBC 6 v. Shehadeh, 56 So.3d 104 (Fla. 3d DCA 2011).................................3 Statutes 942.02 of the Florida Statutes (2012) ....................................................................1, 3

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ARGUMENT The Answer Brief (AB) cites no new authority construing section 942.02 of the Florida Statutes (2012). Instead, its argument directed to this law asserts that Jeffrey Testerman was properly found to be a material and necessary witness in the Ohio prosecution because, while in Florida, he was an eyewitness to an Ohio crime. (AB at 9-12). Specifically, the Answer Brief argues at length that Mr. Testerman was an eyewitness to a completed offense (AB at 12) now being prosecuted by Ohio when he encountered an interview subject on a sidewalk in Tampa in 2009 and heard the subject identify himself as Bobby Thompson outside the duplex where Thompson lived and worked. The question of such extra-territorial application of an Ohio statute aside, there is no Ohio case concerning its identity theft law appearing to support the Answer Briefs argument. The Answer Brief cites no such case. In State v. Roberts, 2005 WL 23358 (Ohio App. 8 Dist. 2005)(cited at AB 12), a person with a past felony conviction used another womans name, social security number, and date of birth to obtain Ohio teaching certification and a job teaching public school. Indeed, Roberts states that the intent to defraud is a key element of the Ohio identity theft crime. There has been no claim that Thompson tried to or did defraud Mr. Testerman of anything (or that Mr. Testerman knows
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about Thompson possessing or using the social security number or date of birth of another Bobby Thompson).1 Thus, the question remains what crime did Mr. Testerman witness? The Answer Briefs argument is the equivalent of stating that if undersigned counsel tells a person outside her house in St. Petersburg that her name is Susan Smith and then retreats into her house, and there is a person whose name actually is Susan Smith somewhere else in the world, then undersigned counsel has committed a crime in Ohio to which the person she encountered is a material and necessary witness for the prosecution. Part of the Attorney Generals argument has been the theory that Mr. Testermans testimony was material and necessary within the meaning of Floridas Chapter 942 because it would show continuity in Thompson/Codys giving of the name Bobby Thompson. Where the prosecution already has evidence that Thompson commenced his fake charity scheme in 2002 or 2003, and continued to engage in it in June 2010 when he met with the USNVAs professional fundraiser and its lawyer in New York City (R. 19) in the company of USNVAs General
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The same eyewitness to a crime argument appears a second time in the Answer Brief, at pages 15 through 17, where the brief specifically addresses the Florida journalists privilege. There seems no reason to address it a second time herein. The argument is not substantively different. News-Journal Corp. v. Carson, 741 So.2d 572 (Fla. 5th DCA 1999), cited there, rejected application of the journalists privilege to one of two documents sought in a libel case by the plaintiff against the newspaper. The first document had been attached by the newspaper to an affidavit in the case. Carson has nothing to do with being an eyewitness to a crime.
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Counsel, this continuity argument must fail. Mr. Testermans single sidewalk encounter in August 2009 does not make him material or necessary especially when there are numerous other available witnesses, including the Tampa physicians not mentioned in the Answer Brief. See Smoliak v. Greyhound Lines, Inc., 2005 WL 3434741 (N.D. Fla. 2005). In arguing that the Florida journalists privilege not to testify is not relevant in this case, the Answer Brief skips over a key point. The case law, the language used in the privilege statute, and their analytic frameworks are remarkably similar to the material and necessary elements in section 942.02 of the Florida Statutes and they therefore provide a body of meritorious guidance to the construction of Chapter 942. The Answer Brief does not appear to address this point at all. In addition, the Florida journalists privilege should have been found to apply and protect Mr. Testerman from having to testify about his newsgathering. In arguing otherwise, the Answer Brief cites WTVJ-NBC 6 v. Shehadeh, 56 So.3d 104 (Fla. 3d DCA 2011). The impression created by the Answer Brief is that the case somehow created a limitation that the privilege only protects a journalist from having to reveal confidential sources. However, a reading of that case shows that the civil litigant (the former City Manager for the City of Homestead, Florida) seeking to obtain the reporters testimony was seeking precisely that information how the reporter obtained a CD disk containing various electronic messages of
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Homestead officials. The case does not represent a limitation on the privilege. Instead it shows the application of the privilege and overturning of a trial courts order requiring the reporter to testify how he had obtained the disk.2 The Answer Brief goes on to argue that Mr. Testerman is not being compelled to testify regarding information obtained in the process of newsgathering (AB at 14) and, at the same time, that no privilege could apply because Mr. Thompson was not a source but he was the story. (AB at 15, emphasis in original). The first part of the argument is contrary to the record, in particular the affidavit and testimony submitted by Ohio Assistant Attorney General Brad Tamarro (R. 25, 60-62, 64-65). The arguments second part is an unusual contradiction of the first that cannot be reconciled. The Answer Brief next posits (AB at 16-17) that because Mr. Testerman and Thompson were the only people outside the Ybor City duplex on that single day in August 2009, Mr. Testermans evidence is highly material and relevant in that he was the sole witness to the encounter. Why Thompsons identification and relationship to the duplex cannot be established through, as just two examples, his long-time landlord and his long-time house-cleaning service has never been explained.

State v. Famiglietti, 817 So.2d 901 (Fla. 3d DCA 2002), also cited on page 14 of the Answer Brief, was a decision addressing a victims psychotherapist/patient privilege. Its relevance here is unclear.
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The Answer Brief (AB at 17), for the first time in this case, adverts to attorney-client privilege considerations as reasons why certain other identification witnesses apart from Mr. Testerman should not be considered in evaluating Mr. Testermans materiality, his necessity, or the application of the journalists privilege to this matter.3 Attorney/client privilege was not one of the reasons the AG advanced either in testimony or argument below as reasons why these individuals are not thoroughly available and useful witnesses for the Thompson prosecution. Instead, the testimony and argument was that two of the witnesses had credibility problems having been lawyers for the USNVA (R. 6064), and that a third was facing indictment herself (R. 64). The third lawyers situation aside, while certainly the constitutional right to counsel in a criminal proceeding is a bedrock of the American justice system, the fact is that neither MacMurray nor Wright have represented Thompson in the criminal case at issue. Moreover, it is unexplained how attorney/client privilege prevents any of these people from identifying Thompson/Cody as the person who presented himself over a long period of time as being Commander Bobby Thompson the leader of the

Although the Answer Brief does not name them in the argument here, presumably the reference is to Ohio attorney Helen MacMurray (the USNVAs General Counsel), Sam Wright (who also represented the organization), and Karmika Ruben (who had served in an administrative capacity for the organization prior to becoming licensed to practice law, and who is pictured with Hillsborough Countys Sheriff and Bobby Thompson presenting a USNVA contribution to a Sheriff-endorsed charity).
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USNVA. Also, apparently in the view of the Answer Brief, a person already incarcerated in Ohio as a result of her role in the USNVA sham charity (Blanca Contreras) and the numerous lawyers who had long-sustained contact with Thompson specifically in connection with his operation of the sham charity are less material, less necessary and more worthy of protection from having to testify than is a Florida journalist who had a single face-to-face interview with Thompson in August 2009 in Ybor City. Finally, none of the Ohio journalists privilege cases cited on page 19 of the Answer Brief supports its arguments here.4 Because Mr. Testerman does not appear able to rely on any protections in Ohio law, it is all the more necessary for our courts to exercise their clear authority and obligation to reject inadequately supported efforts to extradite a Florida journalist under Chapter 942 vitiating his privilege not to be a witness for the prosecution concerning his news stories about Bobby Thompson and the USNVA.

City of Akron v. Cripple, 2003 WL 21697751 (Ohio Ct. App. 2003)(criminal defendant challenged trial courts decision to require journalists who photographed him performing unlawful motorcycle stunts but was found to have no standing to bring the challenge); Ventura v. The Cincinnati Enquirer, 396 F.3d 784 (6th Cir. 2005)(source sued news media for revealing his identity; journalists not properly required to divulge information leading to identities of other confidential sources); In re April 7, 1999 Grand Jury Proceedings, 749 N.E.2d 325 (Ohio Ct. App. 2000)(holding trial court erred in holding journalist in contempt for declining to testify before grand jury about identity of confidential source, matter protected by Ohio statutory privilege, threshold of relevancy not properly established before lower court).
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CONCLUSION The lower courts order should be reversed.

Respectfully submitted, /s/ Alison Steele ALISON STEELE Florida Bar No. 0701106 amnestee@aol.com ANNE ARSENAULT Florida Bar No. 71409 aarsenault@rahdertlaw.com Rahdert, Steele, Reynolds & Driscoll, P.L. 535 Central Avenue St. Petersburg, Florida 33701 Telephone: (727) 823-4191 Fax: (727) 823-6189 Attorneys for Appellant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served this 10 day of June, 2013 by electronic mail to Cerese Crawford Taylor, Assistant Attorney General for the State of Florida, at cerese.taylor@myfloridalegal.com and United States Mail, 3507 E. Frontage Rd., #200, Tampa FL 33607.
th

/s/ Alison Steele Alison Steele Florida Bar No. 0701106

CERTIFICATE OF FONT SIZE I further hereby certify that this brief has been prepared using Times New Roman 14-point type.

/s/ Alison Steele Alison Steele Florida Bar No. 0701106