IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA STATE OF FLORIDA, DIVISION: CRIMINAL Plaintiff, JUDGE: CHARLES JOHNSON CASE NO: F16-15256A v. HENCHA VOIGT, Defendant. HEN CHA AMENDED MOTION TO DISMISS INFORMATION UNDER FLORIDA RULE OF CRIMINAL PROCEDURE OR IN THE ALTERNATIVE, MOTION TO SEVER DEFENDANTS UNDER FLORIDA RULE OF CRIMINAL PROCEDURE Defendant, HENCHA BARACHLY VOIGT, by and through her undersigned counsel and pursuant to Rule 3.19003), of the Fiorido Rates ofCrr?minal Procedure, moves to dismiss Counts 1, 2, and 4 of the Information filed on August 24, 2016, or in the alternative moves to sever the cases pursuant to Rule and in support thereof states the following: I. INTRODUCTION. The State of Florida has charged Ms. Voigt, and one other co-defendant, in a 4 count Information charging various offenses, including extortion, conspiracy to commit extortion, and unlawful use of a two-way communications device. As set forth below, all substantive and conSpiracy extortion counts along with the unlawful use of a two-way communications device count must be dismissed since the factual allegations which support the Counts are de?cient. Because of this deficiency, the allegations are vague, indistinct, and inde?nite; therefore, Ms. Voigt?s ability to properly prepare a defense is impaired. Sec Flo. R. Crfm. P. In addition, the Court has discretion to consider a motion to dismiss when ?there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.? Flo. R. Crier. P. Precedent has defined ?the function of a motion to dismiss is to ascertain whether or not the facts which the State relies upon to constitute the crime charged, and on which it will offer evidence to prove it, do, as a matter of law, establish a prima facie case ofguilt of the accused.? Sryron v. State of'Florr?do, 662 So.2d 965 (Fla. 151 DCA 1995). Here, the deficient facts on which the State relies upon do not establish a prima facie case of guilt against the defendant. Therefore, the Court must dismiss Counts 1, 2, and 4. II. STATEMENT OF FACTS . Hencha Voigt is a friend and an acquaintance of (Co-Defendant Wesley Victor. . As Wesley Victor?s friend, Hencha Voigt has had multiple telephone and conversations with Wesley Victor. . Hencha Voigt has met and has spoken to the alleged victim, Julienna Goddard, many months prior to this case. . Hencha Voigt has had compromising pictures/?videos published over the internet by third parties without her consent. . As a result of said publication(s), Hencha Voigt was required to hire private counsels in order to negotiate and remove her compromising pictures/videos from the internet. The Miami-Bade State Attorney?s Office was advised of Hencha Voigt?s circumstances in having to hire legal counsels in order to remove her compromising pictures?videos from the internet. Proof of e-mail(s) regarding same was provided to the State Attorney?s Of?ce prior to the ?ling of this case. 10. ll. 12. l3. l4. Hencha Voigt learned of the fact that compromising videos from the alleged victim, ulienna Goddard, were about to be published and Hencha Voigt contacted Ms. Goddard to advise Ms. Goddard of same. Hencha Voigt cooperated with lmani Simmons, assistant to Ms. Goddard, and provided proof of the footage that was sent to Ms. Voigt, showing that Ms. Goddard was the person involved in the compromising videos at issue. Hencha Voigt communicated with Ms. Simmons from Ms. Voigt?s personal cellular telephone with the following number: 754-202?6802. As admitted by the State of Florida in its Response to the Defense?s Motion to Dismiss, the cellular telephone used to extort money from the alleged victim (to wit: 305-?83- 8445) was found in the possession of the Co-Defendant, Wesley Victor, and not Hencha Voigt. All of the illegal demands and conversations conducted with the alleged victim were made via telephone number 305-783?8445, which is referred to as the ?trap phone?. The calls and text messages emanating from the ?trap phone? came from a location in close proximity to the (Io?Defendant?s residence, Wesly Victor. Ms. Voigt never negotiated or demanded any sums of money from Ms. Goddard or Ms. Simmons. In fact, in a text message to the alleged victim on July 20, 2016 at 5:20 P.M., Ms. Voigt suggested to the alleged victim that the alleged victim should negotiate something other than money. Ms. Voigt expressly stated ?maybe can negotiate something other than money?. This passage was partly quoted by the State of Florida in its Response to Defense?s Motion to Dismiss. 15. There is no oral or written statement wherein Hencha Voigt agreed with Wesley Victor to extort money from the alleged victim. 16. Ms. Voigt never made any threats to accuse the alleged victim of any crime(s) or offense. ACCUSATIONS SET FORTH IN THE CHARGING DOCUMENT. Count 1 charges. Ms. Voigt with principal to commit extortion under .S. 777.011 and 836.05. Count 2 charges Ms. Voigt with conspiracy to commit extortion under PS. 777.04 and 836.05. Count 4 charges Ms. Voigt with unlawful use of a two-way communications device under PS. 934.215. Counts 2, 3, and 4 involve allegations that took place at an undisclosed location in Dade County, over a time period of approximately two days. In particular, Count 1 alleges in pertinent part, that Ms. Voigt and the other co?defendant: ?did feloniously by written communication, malicious threaten to expose another, to wit: JULIEANNA GODDARD, to disgrace, andx?or to expose a secret affecting another, to wit: JULIEANNA GODDARD, andfor to expose a secret affecting another, to wit: ULIEANNA GODDARD, andfor to impute a deformity or lack of chastity to another, to wit: JULIEANNA GODDARD, with the intent thereby to extort money or a pecuniary advantage, to wit: EIGHTEEN THOUSAND See Information at p. 2. The Information provides, throughout its multiple counts, no further speci?c facts to precisely describe the role or speci?c conduct of either named Defendants. IV. SUMMARY OF ARGUMENT By failing to identify any speci?c acts allegedly involving distinct and separate defendants, and by using broad statutory language alleging the defendant?s conduct, the State has effectively impaired Ms. Voight?s constitutional right to present an adequate and full defense. V. ARGUMENT The procedural defects in Counts 1, 2, and 4 justify dismissal under Rule 3.140. On a motion to dismiss focused on procedural de?ciencies of an Information, this Court must ensure that the ?Information on which the defendant is to be tried shall be a plain, concise, and de?nite written statement of the essential facts constituting the offense charged.? Fla. R. Crim. The Florida Supreme Court has stated: It is so well settled as to need no citation of authority that every person accused ofcrime is entitled to be informed of the nature of the accusation against him. This right requires that the charge be stated with such cleamess and necessary certainty as to apprise the accused of the charge he will be called on to meet at the trial, so that he will not be misled in the preparation of his defense and so that he will be protected after conviction or acquittal from substantial danger of a new prosecution for the same offense. Cooper v. City of'Miami, 36 So. 2d 195, 196(Fla. 1948). Dismissal is the proper relieffor a defendant who is accused by a clearly inadequate charging document that does not substantively inform a defendant of the charges against him in plain and concise language such that he can defend himself. Goldberg it. State, 351 So. 2d 332, 334-335 (Fla. 1977'); Florida v. Beasley, 317 So. 2d 750, 753 (Fla. 1975). ?Among the requirements for the allegations in an indictment to be sufficient are (1) the speci?city test, does the indictment contain all the elements of the offense pleaded in terms sufficient enough to apprise the accused of what he must be prepared to meet, and (2) is the indictment pleaded in such a manner as to enable the defendant to plead prior jeopardy as a defense if additional charges are brought for the same offense.? Battle v. State, 365 So. 2d 1035, 103'? (Fla. 3d DCA 1978) (citing to Russell v. United States, 369 US. 749, 82 S. Ct. 1038 (1962); State v. Smith, 240 So. 2d 807 (Fla. 1970); Victer v. State, 174 So. 2d 544 (Fla. 1965); State v. Jones, 312 So. 2d 483 (Fla. 4th DCA 1975). Courts have condemned the practice of merely tracking the statutory language in the Information. See State v. Covington, 392 So. 2d 1321, 1323-1324. ?When the Information substantially follows the statutory language, ifthe Information as whole is still vague, inde?nite, inconsistent, or calculated to mislead the defendant in the preparation ofhis defense,? then Information is deemed to be insufficient for the Courts. id. Thus, the State is required to inform a defendant, with sufficient ?precision and particularity,? the factual allegations which constitute the offenses against a defendant. Id. Therefore, when the factual allegations in the Information are not suf?cient, the Court will determine the Information as drawn to be clearly inadequate. Id. Ms. Voigt has the right to a clear and de?nite statement of the charges against her, so that she is not misled or embarrassed in preparing her defense. See Fla. R. Crim. 3.140(b) and The vague language of Counts l, 2, and 4 in the Information as a whole show that Ms. Voigt has been denied any real Opportunity to defend herself against clear and concise factual allegations which specify the charges against her. An analysis of the language in Counts l, 2, and 4 demonstrate an unfounded technique used by the State to throw every possible allegation in the counts with the expectation that one of those allegations will stand. The foregoing shows that the extortion counts and the unlawful use of a two-way communications device count do not provide a clear and precise statement of the facts mandated under the Florida Rules of Criminal Procedure. Rather the extortion counts and the unlawful use of a two~way communications device count are portrayed by a vague and undefined laundry list designed to find any possible way to charge Ms. Voigt. The State?s approach results in not only violating Ms. Voigt?s statutory rights, but also is hostile to her fundamental and constitutional right to prepare a sound defense. I. The principal to commit extortion, conspiracy to commit extortion, and the use of a two-way communications device foil to properly inform the defendant ofthe charges against her. Section 836.05 of the Fiorio?o Statutes, states that extortion means ?[w]hoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever. . Ia. Sta. 836.05. ?Conspiracy" entails person who agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conSpiracy . . Fla. Sta. Section 934.214, Florida Statutes, criminalizes the use of a two-way communications device to facilitate a felony. Hott v. State of Ftortda, 173 So. 3d 1079, 1082 (Fla. 5th DCA 2015). It provides, ?[a]ny person who users a two-way communications device, to facilitate, or further the commission of any felony offense commits a felony of the third degree . . 1d; Fla. Stat. 934.215. ?This offense has two elements: the use ofa two-way communications device (2) for the purpose of facilitating or furthering a commission of any felony offense.? 112?. citing to v. State of'Ftoridn, Case No. 2Dl3-3630 at 4 (Fla. App. 2014). In the pleading of a conSpiracy, the State has an advantage over the defendant; thus the law requires a charging document which informs the defendants of the allegations against them to prevent unfair advantages, and unfair determination of guilt and punishment. See Gotdberg, 351 So.2d at 333. Courts have required the State to meet the aforementioned standard in the Information to prevent ?[t]he shot gun approach to a conspiracy charge [that] could amount to a prosecution for general criminality resulting in a finding of guilt by association.? Id. In the present case, without detailing any actual act(s) committed by Ms. Voigt, the State is attempting to find Ms. Voigt guilty, simply by associationtbeing with the co-defendant. 2. Omission of essential facts in the Information shows the Information ?3 failure to plead with Speei?eity. In the instant case, the detrimental defects in Counts 1, 2, and 4 are stressed by their failure to plead facts with speci?city. Count 1, 2 and 4 alleging Defendant Voigt?s participation in committing the alleged crimes or facilitating the commission of the alleged crimes fail to show: (1) whether the alleged ?felonious written communication [which] maliciously threatened? the alleged victim along with the extortion act was done by Defendant Voi gt or the other co- defendant or by both simultaneously in Count 1. (2) the speci?c wrongful act that shows Defendant Voigt used an ?unlawful two-way communications device" in Count 4. (3) the specific wrongful act by Defendant Voigt in Count 1 (4) the Speci?c wrongful act by Defendant Voigt in Count 2 In omitting the specific facts, especially in conspiracy pleadings, the State?s charging document merely tracks the statutory language instead of stating the essential ?facts and circumstances concerning the manner in which the crime[s] [were] committed.? Store v. Crisco, 392 So. 2d 1022, 1023 (Fla. 1981); Store ofFiorido v, Borneo, 344 So. 2d 863, 864 (Fla. 1977). Thus, the Information is insufficient due to the lack of factual Specificity as to Defendant Voigt. VI. CONCLUSION. As the facts listed herein are not in dispute and for the reasons stated above, Counts 1, 2 and 4 of the Information against Ms. Voigt should be dismissed in their entirety. VII. MOTION TO SEVER. Alternatively, Ms. Voigt seeks to sever her trial from the trial of the Co-Defendant, namely WESLEY VICTOR, Fifi-152563 In support of this motion, Ms. Voight states the following: Both Defendants, Hencha Voigt and (hereinafter referred to as ?Defendant Voigt) and Wesley Victor (hereinafter referred to as Clo-Defendant Wesley), were charged on July 21, 2016. The factual allegations are not clear as to what speci?c acts were committed by either Defendant Voigt or Defendant Wesley or both. However, both Defendant Voigt and Defendant Wesley were charged with principal to commit extortion, conSpiracy to commit extortion, and unlawful use of a two-way communications device. The Miami Beach Police reports state that Defendant Voigt and Defendant Wesley made incriminating statements to law enforcement on July 21, 2016. The Court shall order a severance of defendants and separate trials before trial, on a showing that the order is necessary to protect a defendant?s right to a speedy trial, or is appropriate to promote a fair determination of the guilt or innocence of 1 or more defendants. Fin. R. Grim. P. The purpose ?of the severance rule is not to provide defendants with an absolute right of severance when requested, when they blame each other for the crime, but to assure each of them of a fair determination ofhis guilt or innocence.? Lines v. State of Florida, 143 So. 3d 1018, 1019 (Fla. 2014). Moreover, ?these severance rules are consistent with the minimum standards promulgated by the American Bar Association.? (from v. State of Fiorida, 398 So. 2d 810, 811. ABA Standard for Criminal Justice 13?32(13) suggests the Court should grant a severance of defendants before trial whenever severance is deemed appropriate to promote a fair determination of the guilt or innocence of one of more defendants. Id. Defendant Voigt proposes that none of the statements of Co-Defendant Wesley or any facts implicating Co-Defendant Wesley are admissible against her because accomplice confessions are presumptively unreliable. See Lee v. Illinois, 476 US. 530 (1986); Cruz v. New York, 481 1.1.8.136 at 193 (1987). According to the Miami Beach Police reports and discovery submitted by the State, (Io-Defendant Wesley heavily implicated himself in the alleged crimes by using the telephone device involved in the alleged extortion at or near his residence on numerous occasions: ?where a non-testifying co-defendant?s confession incriminating the defendant is not directly admissible against the defendant . . . the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant?s own confession is admitted against him.? Cruz 12. New York, 481 U.S. 186, 193 (1987). The United States SUpreme Court held that a defendant?s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution were violated by the introduction of the non-testifying codefendant?s confession which named and incriminated the defendant at ajoint criminal trial. Breton v. United States, 391 US. 123, 126 1968). A Breton violation is rooted in the introduction of statements which incriminate an accused without affording him or her an opportunity to cross-examine the declarant. In the instant case, should the (2) Co-Defendants be tried together, and should Co- Defendant Wesley choose not to testify at the defendants? joint trial, introduction of evidence ABA Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance against him would deny Defendant Voigt of her Sixth Amendment right to confront her accuser(s). The State, through the discovery process, provided the Defendant with telephone mapping records involving the incriminating telephone device in relation to the residences of the two (2) Defendants. The TRAX system was used in this process. TRAX automates the mapping process of phone records into a simple presentation that anyone can follow. From the TRAX records provided, it is absolutely clear that all of the telephone communication( s) involving the incriminated device came from the residence or a location near the residence of Defendant Wesley. None of the the incriminating telephone communication(s) came from Defendant Voigt?s residence or any locations near her residence. The fact that Defendant Wesley was arrested in Ms. Voigt?s vehicle while the incriminating telephone device was located inside said vehicle is problematic to Ms. Voigt?s defense. Defendant Wesley categorically refuses to accept responsibility and possession of the incriminating telephone device found in Ms. Voigt?s vehicle. When the State introduces the TRAX telephone mapping records at trial, said records would unfairly cast guilt on Ms. Voigt despite the fact that none of the incriminating telephone communications came from her or any location(s) near her residence. Therefore, failure to grant severance in this case would violate Defendant Voigt?s right to a fair trial in that the ?jury [will not be able to] distinguish the evidence relating to each defendant?s acts, conduct, and statements, and can[not] then apply the law intelligently and without confusion [to] determine the individual defendant?s guilt or innocence.? McCray v. State ry??oridn, 416 So. 2d 804, 306 (Fla. 1982). Failure to grant severance would unfairly prejudice Defendant Voigt and her constitutional rights to confrontation will be violated. Moreover, Defendant Voigt proposes that neither of the options afforded to the State by Fla. R. (Trim. P. 11 (A): oint trial with statements/evidence not admitted, or (B): Joint trial with statementsr?evidence admitted, but with references to the Defendant deleted are suf?cient to promote a fair determination of Defendant Voigt?s guilt or innocence. Defendant Voigt submits that a fair determination ofher guilt or innocence can only be accomplished by the remedy provided in Fla. R. Crim. P. Severance of the moving defendant. WHEREFORE, as the facts listed herein are not in dispute, Defendant Voigt respectfully requests that this Honorable Court enter an order severing the trial of the Defendant from the trial of her Co-Defendant, and grant whatever further relief the Court deems fair and just under the circumstances. VERIFICATION STATE OF FLORIDA BROWARD COUNTY Before me, the undersigned authority, personally appeared HENCHA VOIGT, who took an oath and says that she has read the foregoing motion, and that each fact asserted in it is correct and true. art lW HENCHA VOIGT Sworn to or af?rmed and sighed before me on this Elia): of March, 2017, by HENCHA VOIW Stat? 01 Urld Notary Public - State at Florida '5 My Comm. Ernires Jul 19. 201B commission ill FF 12135 OR {row sandedmmahNallW? ?minis?- Print, type name of Notary Public Known Produced Identi?cation 12 Type of Identi?cation Produced CERTIFICATE OF SERVICE I HEREBEY CERTIFY that a true and correct copy of the foregoing motion has been sent via e-mail to Assistant State Attorney Michael Filteau at and Zeljka Bozanie, Esq. at infog)hozanieiaweom this 16?1 day of March 2017. Kerteh J. Conze, Esq. Law Offices of Kertch Conze, PA. Attorney for Heneha Voigt 3600 Red Road, Suite 402 Mirarnar, Florida 33025 Telephone: 954?342-9044 Facsimile: 954-342-9208 E-mail: gyrzet?loonzelaweorn By: is! Kerteh J. Conze KERTCH J. CONZE, ESQ. FBN: 233020 13