The Florida Bar v. Swickle, 75348
| Decision Date | 14 November 1991 |
| Docket Number | No. 75348,75348 |
| Citation | 589 So.2d 901 |
| Parties | THE FLORIDA BAR, Complainant, v. Harvey S. SWICKLE, Respondent. 589 So.2d 901, 16 Fla. L. Week. S737 |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Warren Jay Stamm, Bar Counsel, Miami, for complainant.
Nicholas R. Friedman, Friedman, Baur, Miller & Webner, P.A., Miami, for respondent.
This case is before us upon the complaint of The Florida Bar and the report and recommendation of the referee. We have jurisdiction under article V, section 15, Florida Constitution.
The Bar filed a complaint against Respondent Swickle alleging several ethical violations. The alleged violations arose from an investigation by the State Attorney's Office and the Florida Department of Law Enforcement into a suspected bribery and conspiracy involving Swickle and former Circuit Judge Howard Gross. After an evidentiary hearing on the Bar's complaint, the referee made the following findings of fact:
1. On October 7, 1981, undercover agent Eugene Caso (FDLE), a/k/a Ernesto Cassal (hereinafter referred to as Cassal), arranged to have respondent Harvey S. Swickle contact him in reference to a criminal matter requiring legal representation. Cassal intended to convey the image that he was an illegitimate South American businessman such as a money launderer or someone who takes care of businesses for questionable Latin American businessmen.
2. That same day at 5:55 P.M., Cassal telephoned respondent and provided respondent with sketchy information concerning the arrest of Orlando Zirio. Orlando Zirio is the name used by an FDLE agent who was fictitiously arrested and booked into the Dade County Jail on charges of trafficking cocaine, conspiracy to traffic in cocaine, and possession of cocaine. During this conversation, Cassal indicated that Zirio had been arrested with about a dozen kilos of cocaine and he wanted Zirio released as soon as possible.
3. During a subsequent conversation with respondent, Cassal informed respondent that Zirio's bond had been set at $750,000 and he needed it brought down to about $150,000. After indicating he could not obtain such a bond reduction that night, respondent stated he might be able to do so depending on whether Zirio had ties to the community. At that time, Cassal had only indicated that Zirio was a Marielito. Respondent had indicated in an earlier conversation that he might be able to lower the bond depending on who was the emergency judge.
4. Respondent then called the home of Dade County Circuit Judge Howard Gross and was on the telephone for one minute and 59 seconds.
5. At 9:11 P.M., Cassal called respondent at home and told him that Zirio is roughly 28 years old, has been in the United States three years, is unmarried, has children but they may be in Cuba, has no family here, and is renting his residence. In response to a question as to Zirio's work status, Cassal indicated "Ah, no, no, he uh, no, he just does work for ah, you know, for my ah ..." Respondent's handwritten notes reflect this information and specifically indicate that Zirio is not working. Cassal reiterated the importance of getting Zirio released soon and that Cassal could get hold of any money that was needed. Respondent stated, "OK, I'm waiting to hear back now, ah, just stay where you are and I'll call you as soon as I hear from my, my guy." I find that this statement was intended to convey and did convey to Cassal that respondent was able to influence a judge to lower Zirio's bond. This finding is premised on a careful review of the entire transcript of the conversations between Cassal and respondent, paying particular attention to the messages conveyed beyond the literal meaning of the words used. In analyzing these conversations, I was aware of the testimony of Manny Barcenas who stated that he had paid respondent $15,000 to bribe a judge to lower Artemio Carrandi's bond. I also considered the testimony of Special Agent Supervisor John Coffey who testified that, after arrest, respondent told him he paid Judge Gross $5,000 for assisting in lowering Carrandi's bond.
6. At about 9:20 P.M., Judge Gross called the Dade County Jail indicating he wanted to reduce a $750,000 bond.
7. At 9:25 P.M., respondent called Cassal and stated he could reduce the bond tonight if respondent files an appearance on Zirio's behalf and represents Zirio. Respondent goes on to say, "I need a $20,000 retainer, the bond will be reduced to 200,000 dollars."
8. Cassal subsequently calls respondent and says "OK, I've got the twenty." Respondent immediately calls Judge Gross' home and is on the line for one minute and nine seconds.
9. At about 10:30 P.M., respondent meets Cassal in the lobby of Cassal's hotel. During a discussion with Cassal, Cassal indicates he only has $10,000 but should be receiving the other $10,000 within a couple of hours. Respondent calls Judge Gross from the hotel lobby while Cassal is counting the money. Respondent tells Judge Gross he has a signed contract. Judge Gross says, "OK, if you are his lawyer and you tell me those are the facts, I'll reduce the bond accordingly." Respondent then arranges to meet Judge Gross at the Judge's house at about eight the next morning. Respondent then goes back to Cassal and gets $10,000. Respondent says that if there are any problems the money goes back and as soon as we get back together again we are all finished.
10. At about 11:00 P.M., Judge Gross lowered Zirio's bond to $200,000. Judge Gross' handwritten notes indicate that Zirio was arrested with three to four kilos. Judge Gross testified that respondent told him that Zirio was a key employee, had children, resided here, and had no prior problems with the law.
11. At 12:05 A.M. on October 8, 1987, respondent meets Cassal at the hotel and picks up an additional $5,000.
12. At about 6:30 A.M. on October 8, 1987, respondent meets Cassal at the hotel again to pick up the remaining $5,000 for a total of $20,000. Cassal lets respondent know that Zirio will "vaporize." Respondent indicates that he will file an appearance anyway to follow the bases and make sure there are no problems. At no time did respondent attempt to advise Judge Gross or anyone else of Zirio's probable disappearance.
13. Respondent met Judge Gross at the Judge's residence at 8:00 A.M. and gave him $6,300 of the cash respondent received from Cassal. Soon thereafter, respondent was arrested and $13,200 of the money received from Cassal was found in respondent's car. Respondent had given the remaining $500 to his wife. Judge Gross testified that the money he received was for repayment of a loan.
(Record citations and footnote omitted.)
Swickle was tried and acquitted on criminal charges arising from this incident.
The referee recommended that Swickle be found guilty of violating the following Rules Regulating The Florida Bar: rule 4-3.3(d) (); rule 4-4.1(a) (); rule 4-8.4(e) (); and rule 4-8.4(a), (c), (d) (). 1 The referee further recommended that Swickle be disbarred.
Swickle alleges that due process errors occurred in the grievance committee proceedings. First, he argues that the notice of the grievance committee...
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