The Defendants state the investigation for the charges underlying the indictments in this case began in and continued through the return of the Second Superseding Indictment. Pre-Indictment Delay Moving Brief at 5.
The Defendants contend the period of delay was prejudicial because numerous defense witnesses have died. The Defendants also argue affirmative indications of malice exist, as well as questions as to whether venue is proper. The Government argues it did not purposely delay, and there is no evidence that it purposely delayed bringing the indictments in this case to gain a tactical advantage over the Defendants. Opposition Brief at The Government further argues the Defendants have failed to establish prejudice as a result of any delay in bringing the indictments.
Marion, U. The Court stated:. Lovasco, U. The Lovasco Court described its task in determining whether pre-indictment delay violates the Due Process Clause as one to determine "only whether the action complained of The Court stated where the delay results from the prosecution's decision to continue its investigation, the delay would not warrant dismissal of the indictment.
In Lovasco, the Government appealed the dismissal of an indictment for pre-indictment delay. The Government indicted the defendant for possession of firearms stolen from the United States mails and for dealing in firearms without a license eighteen months after the alleged offenses occurred.
The defendant moved to dismiss the indictment for pre-indictment delay arguing that little additional evidence was uncovered during the seventeen months preceding the indictment and that he suffered prejudice as a result of the death of two material witnesses. The Government argued it kept the investigation open for eighteen months to determine the validity of its theory that the defendant's son was responsible for the thefts.
The Supreme Court reversed the dismissal of the indictment. It held that in the interest of law enforcement, potential defendants, the public and the courts, no time frame can be imposed during which the Government must bring an indictment. The Court explained the Fifth Amendment does not require the Government to bring an indictment the moment it has probable cause to so.
Relying on the Government's representations that it continued the investigation to learn the identity of additional participants during the eighteen month hiatus between the crimes and the indictment, the Court reversed the dismissal of the indictment.
In Ismaili, the Circuit affirmed the district court's denial of the motion to dismiss for pre-indictment delay. The first grand jury investigation into the charged fraud scheme involving the promotion and sale of customized vans began in January This grand jury was unable to complete the investigation and did not return an indictment.
In the Government received a report of an investigation from a Federal Bureau of Investigation "F. Additional information was needed, however, to take the case before a grand jury. Because the prosecutor in charge of the case was also involved in three other felony trials and other activities, the investigation did not resume until the summer of and an indictment was not returned until the summer of Ismaili sought to establish prejudice through the death of two potential witnesses and the loss of records which would have been used to establish the success of his sales team and promotional efforts.
In addition, the Government argued Ismaili was not prejudiced by the death of the witnesses because their testimony would have been cumulative. The Circuit held the allegations of prejudice were insufficient to warrant dismissal. It stated the fact that witnesses died does not bar prosecution as a result of pre-indictment delay. It further reasoned the record did not reflect that the documents did in fact ever exist or could have been found.
The court stated a finding of no intentional delay was implicit in the district court's decision. Having found the district court did not err in its decision that Ismaili did not satisfy his burden of proof, the Circuit affirmed the court's decision. In United States v. Sebetich, F. The three robberies charged in the indictment occurred in and the indictment was returned on 23 March just five days before the statute of limitations had run.
In challenging the delay, the defendants relied on the fact that the F. I investigation concluded on 4 February when it determined there was sufficient evidence to return an indictment. The indictment, however, was delayed as a result of confusion as to whether the robberies would be prosecuted by the state or federal government. The Government conceded the prosecution fell through the cracks and the investigation was reopened in March The defendants argued they were prejudiced by the delay because potential witnesses, including alibi witnesses, had died and memories had faded for other witnesses.
The Circuit affirmed the district court's denial of the motion to dismiss for pre-indictment delay. It stated the defendants "produced no evidence tending to suggest that the delay was a deliberate tactical maneuver by the government. It explained the delay was a result of a mix-up between the federal and state government and the moment the federal Government realized the case was not proceeding it reopened its investigation and returned an indictment within six months.
Because the court found no intentional delay, it declined to decide whether the defendants satisfied their burden of showing actual prejudice. It commented, however, that it had "serious doubts as to whether the allegations of prejudice were specific enough to constitute a showing of actual prejudice.
United States Gypsum Co. In a grand jury began inquiries which lasted until 27 December when an indictment was returned against the defendants. Prior to trial, the defendants moved to dismiss the indictment for pre-indictment delay; the motion was denied. During the five-month trial which commenced on 3 March the Government called thirty-five witnesses and the defendants called thirty witnesses.
The defendants appealed their conviction on the ground that the trial court denied their motion to dismiss. The defendants argued the Government purposely postponed empaneling the grand jury to await the outcome of a civil case involving the same conspiracy. The Circuit rejected the defendants' contentions of intentional delay and stated: "[A]ny delay in empaneling the grand jury resulted from the Government's reluctance to frame criminal charges against appellants before learning whether plaintiffs in a civil action could carry their burden of proof.
The defendants sought to establish actual prejudice because thirty-six potential witnesses died during the eight-year interval between the initial investigation and the indictment. The court further observed that of the thirty-six potential witnesses who had died, the defendants singled out only three witnesses in their efforts to establish prejudice.
In this case, the Defendants appear to argue the delay from the time of the initial investigations to the return of the Indictment, Superseding Indictment and Second Superseding Indictment was an intentional act of the Government which was awaiting the death of several key defense witnesses. The Government argues there is no evidence of intentional delay.
Specifically, it contends the Second Superseding Indictment alleges racketeering acts which occurred between December and October , predicate acts which occurred between August and September and overt acts which occurred as late as October It argues, therefore, the Indictment, which was returned in June , was within nine months of the last racketeering act charged and within eight months of the last overt act charged. In addition, the Government argues the investigation "involved no less than six separate securities fraud schemes" which required the Government to interview numerous witnesses and to send out numerous grand jury subpoenas.
The Government contends its investigation was further hindered because of the difficulties it encountered in obtaining evidence from the Cayman Islands concerning the Defendants' secret Cayman Islands accounts. The Defendants have not carried their burden of demonstrating intentional delay. Although numerous grand juries were empaneled and the time from the initial investigation through the return of the Indictment was lengthy, there is no evidence of Government manipulation.
Significantly, Bertoli has provided no evidence to substantiate his assertion that the Government was purposely waiting to return the Indictment until the death of Isaacson or any other witness. Indeed, he has not shown or suggested that the Government was even aware of a life threatening medical condition of Isaacson or any other witness.
In addition, the Government's investigation into the underlying criminal charges met with some set-backs when it had difficulty obtaining evidence from the Cayman Islands. The Government initially sought to gather evidence in through the Gentlemen's Agreement; however, such attempts were unsuccessful. The investigation was also slowed when the Cannistraro Indictment was returned and the Government was preoccupied with that prosecution.
In light of the absence of evidence showing intentional delay, the Government's representations that the investigation continued during the pre-indictment period must be taken in good faith and is a sufficient basis to defeat a finding of intentional delay. The Defendants have also failed to establish actual prejudice. The Defendants rely on the deaths of nine individuals who they claim would be material witnesses to their defense.
Specifically, Bertoli states Rose Farrell "Farrell" , chief secretary at Monarch, would have offered favorable testimony to the Defendants' defense. Bertoli Aff. Bertoli states Farrell died during the period of pre-indictment delay. Bertoli states that without the testimony of Farrell, the testimony of Eisenberg will go unchallenged.
He states Farrell would have testified as to "mailing confirmations to Parsico Ltd. Farrell SEC Tr. Farrell stated she did not know who the contact person was on those accounts. Farrell also recalled taking calls from a man named George who instructed her to transfer by wire funds from Monarch to the three accounts.
She did not know if George controlled those accounts. Farrell testified that Bertoli came to Monarch to conduct business for his wife's and children's accounts and his wife's custodian accounts. She stated Bertoli occasionally came to Monarch to use the telephone and on one occasion he received a Federal Express package at Monarch.
Bertoli also claims he has suffered actual prejudice because of the death of Isaacson on 15 January Bertoli offers through the Isaacson Affidavits, asserted to have been prepared prior to his death, the testimony which he would have provided at trial. Bertoli argues that prior to Isaacson's death on 15 January , the Government lacked sufficient evidence to indict him which he claims is evidenced by the fact that Bertoli was not named in the Cannistraro Indictment.
Bertoli argues Isaacson is one of the few persons, aside from Eisenberg, who could testify as to the identity of the beneficial owners of Parsico, VPI, Venture Partners and Roger Rowland. Bertoli further asserts he was prejudiced by the death of John Scott "Scott" , Cannistraro's supervisor at Wood Gundy. Bertoli states Scott died during the period of pre-indictment delay. Bertoli states he has been further prejudiced by the death of Thomas Renshak "Renshak" , an order clerk and security trader at Wood Gundy.
He states Renshak died during the period of pre-indictment delay. Bertoli states Renshak's testimony during the SEC Action is evidence that Renshak would have been beneficial to his defense. He asserts Renshak would have testified he maintained a due diligence file in the trading room which contained a prospectus of LCI naming Cannistraro as an officer.
Bertoli states Renshak had knowledge of the trading of the Cannistraro and Godono  accounts, the alleged nominee accounts of Cannistraro. Bertoli asserts the testimony of Renshak "would refute the allegations of Bertoli states these individuals died during the period of pre-indictment delay. He states these three individuals "could have testified regarding the distribution of the prospectus of LCI, Toxic Waste and High Tech[ ], the market size and the availability of the securities, and refute the allegations of Eisenberg as to the control of the new issue purchasers of Toxic Waste and High Tech Bertoli claims their testimony would be "important because the timing of the mailings or failure to mail the prospectus by Monarch would impact on whether any new investors relied upon the prospectus of High Tech, Toxic or LCI.
Bertoli states Krasnoff died during the period of pre-indictment delay. He states Krasnoff's testimony would contradict the statement in the Second Superseding Indictment that the purchase was from the investing public. Bertoli states without Krasnoff, only Eisenberg can testify about this transaction. Lastly, Bertoli claims he was prejudiced by the death of Lawrence Rohde "Rohde" , an employee of the Department of Defense, who testified before the grand jury and provided a letter to the court attesting to the accuracy of the Toxic Waste Report.
Bertoli states because Rohde worked at the Department of Defense, he had knowledge of the "serious nature of the toxic waste problem at [Department of Defense] sites. He states Rohde died during the period of pre-indictment delay. The Defendants have failed to establish actual prejudice as a result of the deaths of the above-mentioned individuals.
Although the Defendants do proffer what these individuals would have testified about, they do not establish that the proffered testimony would have exculpated the Defendants. Furthermore, the Defendants have not established prejudice because they have not specified when the nine individuals died. The individuals may have died prior to the completion of the Government's case.
In addition, the Defendants have not established that the Government intentionally delayed the return of the Indictment, Superseding Indictment or Second Superseding Indictment until the deaths of the above-mentioned individuals to gain a "tactical advantage over the [Defendants]. Absent proof of the Government's knowledge of their impending deaths, the Government faced the same risk that its witnesses would die or the memories of its witnesses would fade as a result of the decision not to bring the Indictment until Indeed, as a result of the pre-indictment delay, the Government has faced its own hurdles with respect to documents that have been destroyed and money which has been transferred.
Significantly, the testimony relied on by Bertoli does not appear to exculpate the Defendants. With respect to Farrell, her testimony did not identify the contact persons for the Cayman Islands entities' accounts at Monarch. Farrell Tr. Similarly, the fact that Farrell would testify that Eisenberg handled the Roger Rowland and the Donna Lee Clarambeau accounts does not exculpate the Defendants. Bertoli also relies on the testimony of Farrell that Bertoli came to Monarch to conduct his own, his wife's and his children's accounts and his wife's custodian accounts.
Farrell also stated that Bertoli came to Monarch to use the telephone occasionally and on one occasion received a Federal Express package at Monarch. Appendix, Exs. The Isaacson Affidavits further state Isaacson and Cannon were the beneficial owners of these accounts. The Government asserts the Isaacson Affidavits are false and fraudulent.
To support this contention, it offers testimony from the Cayman Islands Depositions which establishes that Bertoli, Cannistraro or Eisenberg were the beneficial owners of the Cayman Islands accounts. It is at best questionable whether Isaacson's testimony would have exculpated the Defendants. With respect to the testimony of Scott, who Bertoli states would have testified that Wood Gundy had no policy with respect to its employees owning stock of a company it recommended, the Defendants have not established that this evidence is unavailable from other sources.
Accordingly, it does not appear that only Scott's testimony on this point would assist the Defendants. The Defendants have not established actual prejudice resulting from Scott's death. Similarly, it is not clear how the testimony of Renshak would have exculpated the Defendants.
Significantly, with respect to trading in Cannistraro's nominee accounts in the names of Cannistraro and Godono, it is likely that documentary evidence exists with respect to such trading. Although Renshak may have been the trader who actually executed the transactions,  such transactions would be documented.
This is particularly the case with respect to Renshak's testimony relating to the LCI prospectus. Renshak stated he had a copy of it in his due diligence file; however, Renshak did not maintain the due diligence file for Wood Gundy. Renshak Dep. As to the deaths of Monberg, Averell and Orenstein, the Defendants have not established they were the only witnesses available to offer the relevant testimony. Bertoli has offered no evidence to substantiate his claims as to what they would have stated at trial.
Indeed, the Government has evidence that Monberg would not testify as Bertoli claims. The Government contends it has evidence that. As to Krasnoff, it is not clear from the record that he would have been a defense witness. Indeed, the Government asserts he would have been a Government witness because of his involvement in this case. Accordingly, in the absence of proof of the substance of Krasnoff's testimony it is not possible to determine whether the Defendants were prejudiced by the delay in the indictment.
Lastly, the Defendants have not established actual prejudice because of the death of Rohde. As indicated by the Government, the accuracy of the Toxic Waste Report is not at issue in the Indictment, but rather the issues at trial will center around the intentional inflation of the price of Toxic Waste stock.
Accordingly, the death of Rohde has not resulted in actual prejudice toward the Defendants. Even assuming the testimony of the deceased defense witnesses would have been exculpatory, the Defendants have not established that the Government was aware of their impending deaths, much less established that their deaths were impending. The loss of exculpatory evidence alone is insufficient to dismiss an indictment. See e. Spratt, F. Youngblood, U. The actual prejudice prong of the Marion test as well as the intentional delay prong have not been satisfied.
The motion to dismiss the Second Superseding Indictment for pre-indictment delay is denied. Goodwin, U. The Court explained:. Selectivity in the enforcement of criminal laws is Batchelder, U. The Court stated claims for selective prosecution are subject to the "ordinary equal protection standards.
It stated that to establish a basis for dismissal because of selective prosecution, the defendant must show "both that the passive enforcement system had a discriminatory effect and that it was motivated by a discriminatory purpose. Feeney, U. Metropolitan Hous. Davis, U. It noted, however, the defendant need not demonstrate a discriminatory intent if the equal protection claim is based on an overtly discriminatory act.
Wayte, U. It implies that the decisionmaker Schoolcraft, F. Harrigan, F. In Schoolcraft, the defendant was charged with making a false statement in the acquisition of a firearm and unlawful possession of a firearm by a previously convicted felon. In addition, the Government filed a criminal information alleging prior convictions, as permitted under the Armed Career Criminal Act, 18 U.
Prior to trial, the defendant moved for dismissal arguing, inter alia, selective prosecution. The Circuit affirmed the district court's denial of the motion to dismiss for selective prosecution. It observed the record reflected no efforts taken by defense counsel to determine whether there were similarly situated defendants in the state system who had not been transferred to the federal system. It further stated there was no evidence the defendant had been prosecuted "on the basis of an unjustifiable standard or for exercising one of his fundamental rights.
In Harrigan, the defendant was prosecuted and convicted under the habitual criminal statute of the Virgin Islands. Harrigan challenged the application of the statute to him arguing, inter alia, it denied him of equal protection of the law. At his sentencing he argued the government "made its decisions on when to file habitual criminal informations on a racially discriminatory basis;" however, he provided no evidence to support his claim.
The first time Harrigan raised evidence to support his claim of selective prosecution was on appeal when he presented a record indicating that the fourteen people sentenced under the habitual criminal statute in the previous twenty years were minorities, including nine African-Americans and five Hispanics. Because no evidence had been presented at his sentencing hearing, the Circuit did not consider the evidence first raised on appeal.
On appeal Harrigan also argued the government violated his right to equal protection because it arbitrarily chose when to file habitual criminal informations. He argued the government, in the past, did not file habitual criminal informations in cases involving grand larceny, the charge against Harrigan.
The Circuit rejected Harrigan's argument on the ground that the government's change of policy on whether to file information on persons convicted of theft alone is not evidence of arbitrariness. It continued: "Prosecutors consider numerous factors in deciding whether to prosecute including the age and record of the offender, the role of the person in the crime, and the resources of the prosecutor's office. Greene, F. The defendants appealed their conviction on the ground that the indictment was selectively prosecuted because they were among six air traffic controllers prosecuted out of approximately three hundred who did not report for work.
The Government agreed there had been "some selectivity in singling out the defendants for prosecution. The Circuit, therefore, focused on the purpose of the selectivity. To establish an invidious purpose, the defendants relied on the fact that the F. The Greene court rejected this argument and stated the record indicated the defendants had been prosecuted because of their status as strike leaders, not as union officials.
The court relied on the evidence in the record that the defendants had actively participated in the strike and that in the documents submitted, in camera, the Government continuously referred to the defendants as strike leaders, not union officials. The court further stated the Government prosecuted all strike leaders of whom it was aware, whether union officials or rank-and-file members.
Accordingly, the Circuit found the defendants failed to establish an improper motive in the selective prosecution of the striking air traffic controllers. In this case, the Defendants base their argument for selective prosecution on the fact that the prosecution is based on a novel use of RICO which was attempted only once before in which case the Government eventually abandoned the charge.
Pre-Indictment Delay Moving Brief at They argue they have been singled out as the targets of such novel application of RICO for conduct which is pervasive and generally accepted within the industry. The Defendants further rely on the fact that the Government has immunized "at least a dozen persons" and accepted plea bargains from "at least five [persons].
The Defendants' general averment that their conduct of not revealing their interest in stock while favorably recommending the purchase of the stock was a generally accepted practice within the industry is unsubstantiated. The Defendants provide newspaper or magazine articles discussing the propriety of analysts' conduct of "loading up" on stock prior to making a favorable recommendation on it.
Defendants' Reply Ex. These articles do not state it is a generally accepted practice among firms, but rather discuss the debate among brokerage firms as to whether front-loading by analysts should be permitted. Indeed, one article refers to SEC action taken against an analyst who purchased stock prior to his recommendation and who knew or should have known his representations contained in his recommendation were false.
Even assuming the Government has not previously prosecuted scalping and stock manipulation schemes involving securities analysts, a change in policy alone is not evidence of arbitrariness and selective prosecution.
Lastly, to the extent the Defendants assert they are being selectively prosecuted because of Bertoli's assistance to Lindsley during his defense in a criminal trial, the Defendants have provided no evidence of such claim. The Second Superseding Indictment makes substantial allegations regarding the various fraudulent and manipulative securities trading schemes of the Defendants. No evidence of an improper motive in prosecuting the Defendants has been presented. The analytical framework for evaluating claims of prosecutorial vindictiveness is set forth in Blackledge v.
Perry, U. The defendant then filed a notice of appeal to the Northampton County Superior Court, which he was entitled to do under North Carolina law and which entitled him to a trial de novo. Prior to the commencement of the defendant's trial, the prosecutor obtained an indictment from a grand jury, charging the defendant with a felony based on the same conduct charged previously in the misdemeanor. The Court held while there was no evidence that the prosecutor had acted in bad faith or maliciously in seeking the felony indictment, due process required that there be no "potential for vindictiveness" and ruled that it was impermissible for the State to respond to the defendant's "invocation of his statutory right to appeal by bringing a more serious charge against him Oliver, F.
Robison, F. Griffin, F. Once the presumption is created, "the court must determine whether the prosecutorial decision was justified by either independent reasons or intervening circumstances sufficient to dispel the appearance of vindictiveness. Krezdorn, F. In Blackledge, the Supreme Court stated in dictum that the case before it would have been different if the State had shown it was unprepared to proceed on the felony at the outset of the case.
In other cases, the presumption has been found to have been rebutted by a showing of the Government that the decision to bring the subsequent charge was "based upon new facts or evidence not known to the Government at the time of the original indictment. In addition, courts have found a difference between the illegal conduct alleged in the prior and subsequent indictments weighs against a finding of prosecutorial vindictiveness.
Preciado-Gomez, F. In a pretrial setting, however, a court cannot presume vindictiveness. Hayes, U. In Goodwin, the defendant was originally charged with several misdemeanor and petty offenses. Prior to his trial date, Goodwin fled the jurisdiction and was not returned until three years later. After Goodwin's return, the Government modified the charges against Goodwin by adding a felony indictment. Goodwin moved to set aside his verdict on the ground of prosecutorial vindictiveness arguing that the additional felony indictment gave rise to an appearance of retaliation.
The Court held there was "no evidence The Court distinguished a pretrial setting from a trial setting and stated:. In this case, the Defendants recognize there is no presumption of vindictiveness in the pretrial context. Pre-Indictment Delay Moving Brief at 9. The Defendants rely on the previous aggressive defense against prior charges. Bertoli also argues vindictiveness is evidenced by the fact that he assisted Lindsley who was previously the target of prosecution by the Government.
The Defendants argue that the Government's pursuit of a novel theory of RICO prosecution and the Government's institution of this action in "an unusual venue,"  give rise to a showing of actual prejudice. As mentioned, the Defendants have provided no evidence that they are being prosecuted in revenge because Bertoli assisted Lindsley defend criminal charges. Although the Government may have discovered the underlying securities fraud during its investigation of the Hudson County Democratic machine, Bertoli has presented no evidence that the Government chose to prosecute the case solely because of Bertoli's involvement in Lindsley's defense.
A prosecutor is given wide latitude to investigate criminal conduct and to determine which conduct to prosecute. There is no basis to assume the Government's response to the discovery of alleged fraudulent and illegal conduct was to retaliate against Bertoli. Bertoli was not indicted in the Lindsley case.
Accordingly, the return of the Indictment did not present a case of increased punishment. The Government raised criminal charges against Bertoli in the Indictment. As stated in Goodwin, "[i]n the course of preparing a case for trial, the [Government] may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed The fact that the venue of this case is New Jersey is not evidence of actual vindictiveness.
Indeed, by the Defendants' own admission, the initial stages of the investigation were conducted in New Jersey. See generally Second Superseding Indictment. The Constitution guarantees to criminal defendants a trial "in the State where the said Crimes shall have been committed," U.
This right is implemented by Rule 18 of the Federal Rules of Criminal Procedure, which provides: "Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed. The situs of a crime must be determined by reference to the statute proscribing the criminal act.
Johnston v. As discussed, Bertoli does not challenge the propriety of venue of this action, but merely characterizes it as "unusual. Moreover, Monarch conducted some of its business in New Jersey. Therefore, the prosecution is in the district in which some of the offenses were committed. Accordingly, Bertoli's motion to dismiss the Second Superseding Indictment for vindictive prosecution because of the venue is denied. Cannistraro argues the presumption of vindictiveness applies to him because he is not a pretrial defendant.
He argues the sealed Indictment was returned in this case after he withdrew his guilty plea in the Cannistraro Indictment. He further states that after he refused to make a deal to cooperate with the Government, the Superseding Indictment, which is now the Second Superseding Indictment, was returned. Cannistraro raised these same arguments in the first set of pretrial motions. See Eisenberg, F. Cannistraro merely adds to this claim the fact that the Second Superseding Indictment has been returned.
As was the case with the Superseding Indictment, the acts charged in the Second Superseding Indictment are different from those charged in the Cannistraro Indictment. See supra pp. Accordingly, it cannot be inferred from the charges contained in the Second Superseding Indictment that there is a "realistic likelihood" that the Government sought to "up the ante" by filing the Second Superseding Indictment in January in response to any action taken by Cannistraro.
Blackledge, U. The charges in the Second Superseding Indictment against Cannistraro instead reflect the use of prosecutorial discretion. Pungitore, F. Cardall, F. Moscony, F. The motion of Cannistraro to dismiss the Second Superseding Indictment due to prosecutorial vindictiveness is denied.
Lastly, the Defendants argue the novelty of the charges alleged in the Second Superseding Indictment establishes actual vindictiveness. This argument was previously addressed with respect to the claim for selective prosecution and fails for the same reasons as stated above. The motion to dismiss for vindictive prosecution is denied. The Defendants seek to exclude from evidence the Cayman Islands Depositions. Specifically, they argue the Cayman Islands Depositions are inadmissible because since they were taken, the Second Superseding Indictment, containing new legal theories, was returned.
Cayman Islands Moving Brief at 1. Bertoli contends as a result of the changes in the Second Superseding Indictment his motive during cross-examination of the deposed witnesses has been altered. He argues, therefore, the Cayman Islands Depositions are inadmissible because they do not satisfy the requisite identity of motives required by Rule b 1 of the Federal Rules of Evidence.
Bertoli further seeks to exclude the Cayman Islands Depositions on the grounds that he was not permitted to recross certain witnesses or introduce evidence during cross-examination and he was not allowed to call witnesses which the Government had previously subpoenaed. Cannistraro argues the Cayman Islands Depositions are inadmissible because his right to confrontation was violated.
Specifically, he argues his right to confrontation was violated because the Rule 15 Letter Request for the Government to pay the travel expenses of his attorney was denied and because he did not waive his right to attend the Cayman Islands Depositions. The use of depositions in a criminal case is permitted by Rule 15 of the Federal Rules of Criminal Procedure. Rule 15 provides, in pertinent part: "Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may Such depositions, "so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable as Kelly, F.
Indeed, in Salerno, the Supreme Court rejected the defendants' argument that it was not necessary to establish a similar motive in the interest of "adversarial fairness. The Court reasoned: "Congress To respect its determination, we must enforce the words that it enacted This Court cannot alter evidentiary rules merely because litigants might prefer different rules in a particular class of cases.
In Salerno, the defendants sought to introduce grand jury testimony of two witnesses who invoked the Fifth Amendment privilege against self-incrimination at trial. The district court refused to admit the grand jury testimony and stated "the motive of a prosecutor in questioning a witness before the grand jury in the investigatory stages of a case is far different from the motive of a prosecutor in conducting the trial. On appeal, the Second Circuit reversed the trial court's decision and held the trial court erred in excluding the grand jury testimony because it was contrary to adversarial fairness.
The Supreme Court reversed the Second Circuit's holding to dispense with the similar motive requirement. Rather than consider the issue in the first instance, it remanded the question of whether a similar motive had been established. In this case, the only element of Rule b 1 contested by the parties is whether Bertoli had a similar motive in conducting cross-examination while the Superseding Indictment was pending as he would have if conducting cross-examination for the Second Superseding Indictment.
Bertoli argues that the legal theories raised in the two indictments are different. He contends as a result of the differences, he would have had a different motive in conducting cross-examination for the Second Superseding Indictment. The Government argues Bertoli has the same motive to cross-examine witnesses during the Cayman Islands Depositions as he would have had he cross-examined them after the Second Superseding Indictment.
Specifically, the Government argues both the Superseding Indictment and the Second Superseding Indictment charge the Defendants with establishing nominee brokerage accounts at Monarch in the names of Cayman Islands entities. The Government argues its motive during the Cayman Islands Depositions was to establish that the Defendants and Eisenberg controlled the Cayman Islands entities. Accordingly, the Government contends Bertoli's cross-examination was designed to "cast doubt" on the Government's theory.
It argues, Bertoli would have this same motive if he were to cross-examine the witnesses today. A determination as to whether a party against whom former testimony is being offered had a similar motive is a factual determination. Taplin, F. In Taplin, the court stated presence of the defendant's counsel during a co-defendant's suppression hearing, even where defendant's counsel was asked if he had any questions, does not prove that the defendant was prepared for a full and thorough cross-examination of the witness.
Moore et al. Identity of issues is required to ensure that the party against whom the former testimony is being offered had a "meaningful opportunity to develop testimony when it was first offered. Wingate, F. Lowell, F.
The Circuit affirmed the decision to exclude the testimony because "the prosecutor, although present at Montalbano's plea hearing, had no similar motive or interest. It stated: "The only motive at the earlier hearing was to assure that the plea was voluntary and that a factual basis existed for the plea Powell, F. The co-conspirator informed the judge that if called, he would invoke the Fifth Amendment privilege against self-incrimination.
The defendant, therefore, moved to introduce the co-conspirator's statements made at his detention hearing and plea hearing. The district court excluded the testimony from the plea hearing on the ground that the Government did not have the same motive at the plea hearing as it would at trial.
It stated the Government was only trying to establish a factual basis for the guilty plea and did not have an incentive to pursue the issue of the defendant's involvement with the co-conspirator. North, F. The district court denied North's motion. On appeal, North argued the video-tape was admissible under Rule b 1. The Circuit affirmed the district court. The North court recognized Congress and the independent counsel did not have a similar motive.
It commented on the obvious: the independent counsel was prosecuting the case and asking questions to support a criminal conviction. Licavoli, F. Calandra v. At trial, the Government moved to read Ferritto's testimony at the state trial. The defendants argued although the murder and conspiracy to murder charges in the state court proceeding are the predicate acts for the federal RICO conspiracy, the motive to cross-examine was not the same because there is the additional "enterprise" element in the federal trial.
The Court affirmed the district courts' decision to allow the state court testimony. It commented that the "defendants It further relied on the fact that the jury was given a limiting instruction as to how to consider the different versions of the facts. In this case, Bertoli had an adequate opportunity to cross-examine the witnesses at the Cayman Islands Depositions with respect to the Superseding Indictment.
As the parties are well aware, however, after the Cayman Islands Depositions, the Second Superseding Indictment was returned. It must be determined, therefore, whether there is a substantial identity of issues with respect to the two indictments. The Government contends, with the exception of the obstruction of justice charges, the Second Superseding Indictment has only been altered in so far as the fraudulent securities trading schemes have been "fleshed out a bit more.
Bertoli argues the underlying theory of the RICO allegations has been changed from scalping and manipulation as to purchases of certain mutual funds to "massive market manipulation over an extended period of time. Most of the charges in the Superseding Indictment remained the same in the Second Superseding Indictment.
This is especially true with respect to the list of the securities fraud schemes. Nevertheless, the Government has alleged in the Second Superseding Indictment additional facts and charges which were discovered as a result of the Cayman Islands Depositions. The addition of facts and entities is, however, distinguished from the facts of Lowell and Powell where the Government was only attempting to establish a factual basis at a plea hearing as opposed to establishing the truth of statements as is required for trial.
During the Cayman Islands Depositions, Bertoli was conducting cross-examination to prepare his defense which would remain the same if he were conducting cross-examination after the return of the Second Superseding Indictment. Although statements relating to new nominee accounts were raised during the Cayman Islands Depositions, Bertoli would presumably have a motive to challenge the validity of such statements.
This case is also distinguished from the facts of North, because Bertoli would be defending a criminal prosecution under the Second Superseding Indictment. Moreover, Bertoli's argument, that he would have a different motive in conducting cross-examination at the Cayman Islands Depositions in light of the Second Superseding Indictment, strains credulity because he does not specify the nature of such difference.
At oral argument, Bertoli merely stated his motive would have been different, it may have been shorter or pinpointed into different areas. Although Bertoli did not specify what he would have asked differently, it is conceivable he may have included in his cross-examination questions relating to the additional facts alleged in the Second Superseding Indictment.
As discussed, Bertoli is currently scheduled to return to the Cayman Islands to conduct depositions as permitted by the letter-opinion, filed 19 December No harm will be done by permitting him to recross-examine those witnesses previously deposed as to issues raised in the Second Superseding Indictment. Bertoli further argues the depositions of Bond and Coleman are inadmissible because he was not given an opportunity to conduct recross examination of them.
Bertoli argues the denial by the Cayman Authority of his right to conduct recross-examination with respect to Bond and Coleman deprived him of his Sixth Amendment right to confrontation. The Government argues there is no basis to conduct recross-examination because no new information was raised during the Government's redirect of Bond and Coleman.
The right to recross-examination was addressed by the Circuit in United States v. Riggi, F. The court stated: "As a general rule, a trial court has wide discretion to restrict recross-examination, especially when no new matters have been raised on redirect. Rockwell, F. Kenny, F. Murphy v. Although the Federal Rules of Evidence do not directly address a party's right to redirect and recross-examination, Rule b provides:.
The scope of redirect-examination has traditionally been limited to those matters raised on cross-examination. The Circuit stated:. Where a new subject is raised in direct examination, the "Confrontation Clause of the Sixth Amendment mandates that the opposing party be given the right of recross-examination United States, F.
The Riggi court explained, cross-examination and recross-examination of material brought out on direct and redirect are the principal means to test the trustworthiness of the witness. Alaska, U. The absence of proper confrontation "calls into question the ultimate integrity of the fact-finding process. Roberts, U. The Circuit observed:. Caudle, F. If a party seeks to conduct recross-examination as to matters not raised on redirect-examination, however, the decision lies within the trial court's discretion.
In Riggi, the trial court introduced a blanket rule that there would be no recross-examination. It was not until after thirteen witnesses had been examined on redirect that the court lifted its absolute ban on recross and permitted recross on request. One of the thirteen witnesses, Ronald Fino "Fino" , was a key Government witness. On redirect examination, Fino provided new evidence. After the redirect, Riggi objected to the line of redirect questioning and urged the court to reconsider its policy on recross-examination.
The trial court affirmed its policy that there would be absolutely no recross in the trial, be it for the Government or the defendant. Riggi challenged his conviction, inter alia, on the ground that the trial court deprived him of his right to confrontation. The Circuit stated the trial court "erred in imposing its blanket prohibition on recross-examination. In this case, Bertoli was permitted to conduct recross-examination of a record custodian witness during the depositions taken on 5 September See Bechard Dep.
Subsequently, however, Bertoli was not permitted to conduct recross-examination of Coleman and Bond. See Coleman Dep. Specifically, with respect to the testimony elicited from Bond on redirect, Bertoli argues new material was introduced. He argues the Government offered into evidence Exhibit an unsigned letter from Euro Bank which it had available at the time of direct examination.
The Cayman Authority's blanket prohibition of recross-examination appears to have violated the Sixth Amendment right to confrontation. As previously discussed, Bertoli is going to take additional depositions in the Cayman Islands, at a date to be set. At oral argument, the Government in fact conceded that it would be appropriate to permit recross-examination with respect to Bond and the introduction of Exhibit With respect to the other witnesses, the Government conceded there was no down side to permitting Bertoli to have an opportunity.
The inconvenience of the witnesses does not outweigh the Sixth Amendment right to confrontation. Bertoli is given leave to conduct recross-examination of those witnesses he was previously denied the opportunity. Such recross, however, is limited to issues raised on redirect.
Bertoli is not permitted to use this opportunity to question the witnesses on issues he should have raised during cross-examination. Cannistraro argues the Cayman Islands Depositions are inadmissible because he was deprived of his Sixth Amendment right to effective assistance of counsel and his Sixth Amendment right to confrontation. He argues his attorney was not able to attend the Cayman Islands Depositions because the Rule 15 Letter Request was denied.
The Government argues Cannistraro's constitutional rights were not violated because Cannistraro voluntarily chose not to attend or pay for his then counsel to attend the Cayman Islands Depositions. The merits of the denial of Cannistraro's Rule 15 Letter Request for the Government to pay for his then counsel's travel expenses to the Cayman Islands Depositions will not be readdressed in this opinion.
Cannistraro never provided or proffered an affidavit or any similar sworn statement that he was financially unable to send his counsel to the Cayman Islands. Indeed, Cannistraro sent his then counsel to the Cayman Islands in July to review the documents produced under the Treaty Request. Moreover, the evidence proffered in this case suggests Cannistraro has control of off-shore bank accounts, that Bertoli has paid Cannistraro's former counsel with funds in off-shore bank accounts and that Cannistraro has been and will be paid one million dollars per year for time served in connection with the Cannistraro Indictment.
As discussed in prior opinions, Rule 15 c does not require a court to order payment of expenses, but states a court "may direct" that the Government pay the costs for depositions. See 11 February Opinion F. Cannistraro voluntarily waived his right to have his counsel represent him at the Cayman Islands Depositions. The motion to exclude the Cayman Islands Depositions on this ground is denied. Cannistraro also argues he was denied his Sixth Amendment right to confrontation because he was not permitted to attend the Cayman Islands Depositions.
He states he never waived his right to confront witnesses at the Cayman Islands Depositions. The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right A defendant may, however, make a knowing and voluntary waiver of the right to confrontation.
Brookhart v. Janis, U. Zerbst, U. In Brookhart, the petitioner sought habeas corpus relief because he was denied an opportunity to cross-examine any of the state's witnesses who testified during his criminal trial. Prior to trial, the petitioner's appointed counsel informed the trial judge that the petitioner signed waivers of a trial by jury and wanted to be tried by the court. The defendant responded to the trial judge that he wanted to point out he was in no way pleading guilty to the charge.
The trial court then asked the defendant to determine whether he wanted a full trial or a trial by the court and his counsel stated only a trial by the court. Cannistrao has always been available to answer a question, make an emergency repair or provide a proposal for bidding or budgeting. We as a team here in Wellesley have all the confidence in the word knowing that we have a partner that is only a phone call away.
The Cannistraro team streamlines the conventional construction process by prioritizing simplicity and accountability to deliver a customized commercial HVAC solution. At Cannistraro, we specialize in engineering, installing, and commissioning commercial HVAC infrastructure from the ground up.
Our engineers design heating, ventilation, and air conditioning systems specifically for your facility and day-to-day operations. With more than 56 years of experience, no commercial HVAC project is too large or too small for Cannistraro to handle.
Any commercial HVAC project requires some level of custom fabrication. Unfortunately, the more contractors, subcontractors, and project managers that get involved with a project, the higher the risk of miscommunication and missed milestones. Our modular HVAC engineering and construction capabilities minimize hours on the job site, improve worker safety, and keep you ahead of project timelines.
In order to maximize your HVAC investment, Cannistraro can develop a customized preventative maintenance program that mitigates the risk of costly equipment breakdowns. Need emergency repairs for your commercial HVAC system?
Our engineers design heating, ventilation, and air conditioning systems specifically for your facility and day-to-day operations. With more than 56 years of experience, no commercial HVAC project is too large or too small for Cannistraro to handle. Any commercial HVAC project requires some level of custom fabrication. Unfortunately, the more contractors, subcontractors, and project managers that get involved with a project, the higher the risk of miscommunication and missed milestones.
Our modular HVAC engineering and construction capabilities minimize hours on the job site, improve worker safety, and keep you ahead of project timelines. In order to maximize your HVAC investment, Cannistraro can develop a customized preventative maintenance program that mitigates the risk of costly equipment breakdowns. Need emergency repairs for your commercial HVAC system? We also offer around-the-clock emergency service. HVAC Systems. Partner With Cannistraro. Fabrication Facility.
Get up-to-date business credit reports and director information online. Cannistraro Investments CC - Get all the information you need. Contact number, email, website, operating hours, reviews etc Yellow Pages South Africa South Africa. Login Register Login with Facebook. Cannistraro Investments About Us How to get. Search companies…. Edit Cannistraro Investments Centurion , Gauteng. Top Businesses. Evaluations of Cannistraro Investments To evaluate this company please Login or Register.
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