MATSUMOTO, District Judge:
A seven-count superseding indictment
At a status conference on November 2, 2009, the parties agreed that the defendants' motions for Brady/Giglio material and notice pursuant to Federal Rule of Evidence 404(b) would become fully mooted by the government's subsequent scheduled submissions.
For the reasons set forth below, defendants' motions for bills of particulars are granted to the extent they request the identity of unindicted co-conspirators. The motions for bills of particulars are otherwise denied. The motions to strike paragraph 12 of the Indictment or language within it are denied. The motion to preclude the government from introducing at trial evidence of Reisman's other business ventures is denied with respect to the Philippine Islands Recovery Project, the CLH Loan Transaction, and V-4's connection to the Crude Oil Deal, which, as to all defendants, is direct evidence of the crimes charged pursuant to Federal Rule of Evidence 402. The motions to preclude evidence of the prior convictions of Kahale and Reisman are also denied, and such evidence, as to all defendants, is direct evidence of the crimes charged pursuant to Federal Rule of Evidence 402. The motions to preclude evidence of the Congo Deal and the Able Income Fund LLC are denied as moot, given the government's stated intention not to introduce this evidence. The motion to preclude introduction of Reisman's other business ventures is otherwise granted. The motions to sever trial are denied and the motions to exclude the co-defendants statements at a joint trial are denied in part and granted in part. The portions of the co-defendants' statements which the government seeks to introduce are admissible, with limited exceptions discussed below. Finally, the motion to direct the government to disclose its experts under Federal Rule of Criminal Procedure 16(a)(1)(G) is denied as moot.
As alleged in the Indictment and the submissions of the government the facts are as follows:
Between 2003 and 2008, defendants and "others" allegedly conspired to fraudulently solicit investors and lenders to invest in the B.I.M. Mining Corporation ("B.I.M."), a Nevada-based corporation which defendants falsely portrayed as a "robust mining concern." (Ind't ¶¶ 1, 11; Gov. 10/23/09 Mem. at 13.) Kahale served as President, Chief Executive Officer and Treasurer of B.I.M., while Graham served as B.I.M.'s Secretary and Director. (Id. ¶¶ 4-5.) Scarlato and Reisman acted as agents for B.I.M. by soliciting investments on its behalf.
Claiming that B.I.M. possessed rights to mineral and precious metal resources such as gold and "nickel babbit"
In reality, rather than using investor funds as promised to develop gold and other mineral assets, defendants allegedly used the money to pay earlier investors and lenders and for defendants' own personal expenses. (Ind't ¶ 15.) For example, Scarlato allegedly kept the majority of the investment money he collected from victims. (Gov. 8/26/09 Mem. at 8.) Similarly, in one instance Reisman allegedly collected $100,000 from a victim and kept the entire amount for use on a down payment for his own house and to repay a prior debt. (Id. at 9.)
As part of the scheme, in order to induce investors and lenders to invest in B.I.M., the defendants allegedly made false representations about B.I.M.'s assets, operations, and defendants' own backgrounds. (Ind't ¶ 12.) For example, defendants allegedly stated that B.I.M. owned mines and had relationships with entities such as mining companies and foreign government representatives and others. (Gov. 10/23/09 Mem. at 4.) Meanwhile, according to the government, B.I.M. neither possessed nor had any rights to gold or other precious metals. (Id. at 5.) In addition, defendants allegedly represented that B.I.M. possessed assets in the hundreds of millions or billions of dollars, while in fact the government contends that B.I.M. rarely had a bank balance in excess of $100,000 and that it had no money that did not come from victims of the fraud. (Id.; see also Gov. 8/26/09 Mem. at 6.) In addition, defendants allegedly falsely claimed that Kahale was a retired general in the United States military with overseas contacts. Reisman also allegedly claimed he was a Certified Public Accountant ("C.P.A."); however, according to the government, Reisman previously had been convicted of theft by deception and securities fraud, barred from the investment industry,
In order to execute the fraudulent scheme, the Indictment charges that defendants
All of the defendants here, with the exception of Reisman, are also defendants in a related civil action filed by an alleged B.I.M. investor. (See Valenti v. B.I.M. Mining Corp., 07 Civ. 1402(LDW) (E.D.N.Y.).) The civil lawsuit makes similar allegations to those contained in the Indictment. (See generally Dkt. No. 07 Civ. 1402, Doc. No. 1, Complaint.)
In addition, during the criminal investigation by the FBI into investments related to B.I.M., Kahale, Graham and Scarlato made statements to the FBI which were memorialized by FBI agents on Form FD-302 ("302 Statements"). (See id.)
On June 1, 2009, a full eight months before trial is scheduled to begin on February 1, 2010, the government provided defendants with discovery consisting of approximately four boxes of documents, supplemented by a detailed index. (See Gov. 10/23/09 Mem. at 15.) The government has also provided limited additional discovery since that date. (See, e.g., Doc. No. 103, Ltr. from Tanya Hill and Jonathan Green dated 12/9/09; see also Doc. No. 108, Ltr. from Tanya Hill and Jonathan Green dated 12/17/09.) The government's June 2009 discovery letter identifies the names of many victims and the ranges of bates numbers relevant to those victims. (Id. at 12.) The discovery itself included various documents, some of which came from victims' files, including copies of bank and other records such as copies of email messages, letters, gold delivery certificates, copies of checks and other information. (Id.) The government has represented that "[i]t is these documents that were provided to the victims that the government alleges are false and fraudulent." (Id. at 15.)
In addition to the discovery, the government's submissions on the instant motions have made additional factual disclosures and specifications about the particulars of the unlawful transactions. (See generally Gov. 8/26/09 Mem., see also Gov. 10/23/09 Mem.) Finally, pursuant to the court's pretrial orders, the government has provided and will provide additional information to the defendants. For example, the government has provided copies of the B.I.M. deposition testimony and the 302 Statements made by Kahale, Graham and Scarlato. (Gov. 11/24/09 Stmts. Ltr.) In addition, prior to the pretrial conference in January 2010, the government will provide
Defendants all move
A decision of whether to grant a, bill of particulars under Rule 7(f) of the Federal Rules of Criminal Procedure is one which rests within the sound discretion of the trial court. See, e.g., United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). In exercising that discretion, however, a trial court is guided by the limited functions that bills of particulars are designed to achieve, namely, to allow a defendant to "identify with sufficient particularity the nature of the charge pending against him, thereby enabling [the] defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." Id.
Notably, the "[a]cquisition of evidentiary detail is not the function of the bill of particulars." United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990) (upholding denial of bill of particulars where requests amounted to "ill-disguised attempts at general pre-trial discovery") (internal quotation omitted); see also United States v. Feola, 651 F.Supp. 1068, 1123 (S.D.N.Y.1987), aff'd without op. 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989) (noting courts' refusals "to treat a bill of particulars
Even where an indictment contains some apparent deficiency, "if the information sought by defendant is provided ... in some acceptable alternate form, no bill of particulars is required." Bortnovsky, 820 F.2d at 574; see also United States v. Walsh, 194 F.3d 37, 47 (2d Cir.1999) ("bill of particulars is not necessary where the government has made sufficient disclosures concerning its evidence and witnesses by other means" including discovery which "adequately differentiated the charges" and prevented surprise at trial).
However, "[t]he Government [does] not fulfill its obligation merely by providing mountains of documents to defense counsel who were left unguided" as to which documents are relevant to the charged conduct. Bortnovsky, 820 F.2d at 575; see also United States v. Bin Laden, 92 F.Supp.2d 225, 234 (S.D.N.Y.2000) ("It is no solution to rely solely on the quantity of information disclosed by the government; sometimes, the large volume of material disclosed is precisely what necessitates a bill of particulars."). On the other hand, no bill of particulars is warranted where "the Indictment, discovery, and other information provided by the government adequately notify [d]efendants of the charges against them." Rigas, 258 F.Supp.2d at 305.
Thus, in assessing whether a bill of particulars is warranted, the proper inquiry is not whether the requested information would be helpful to the defense (which it almost invariably would), but rather whether the information is necessary to the defense. See Torres, 901 F.2d at 234 ("The function of a bill of particulars is to provide [the] defendant with information about the details of the charge against him if this is necessary to the preparation of his defense, and to avoid prejudicial surprise at the trial.") (emphasis added) (internal quotations omitted); see also United States v. Chalmers, 410 F.Supp.2d 278, 286 (S.D.N.Y.2006). In conducting this inquiry, the trial court "must examine the totality of the information available to the defendant, including the indictment and general pre-trial discovery ..." United States v. Solomonyan, 452 F.Supp.2d 334, 349 (S.D.N.Y.2006) (internal citation omitted).
Defendants seek the identities of any unindicted co-conspirators. (See Reisman 8/5/09 Mem. at 6; Graham 10/7/09 Mem. at Ex. C ¶ 5; Scarlato 8/7/09 Ltr. at 1-2.) Defendants claim that without this information it will be "virtually impossible for the defendants to investigate the allegations as to which they will have to prepare a defense," and Reisman also claims that his need for this information is particularly acute given his extensive and legitimate business dealings with a wide range of associates. (Graham 10/7/09 Mem. at 3; Reisman 8/5/09 Mem. at 6.) The government contends that requiring the government to identify and classify "others who may have participated in this conspiracy as
There is no clear rule in the Second Circuit as to when a bill of particulars for unindicted co-conspirators should be granted. See, e.g., United States v. Nachamie, 91 F.Supp.2d 565, 572 (S.D.N.Y. 2000) ("A review of the case law in this district reveals no clear distinction among circumstances in which courts grant a request for the names of known unindicted co-conspirators and circumstances in which they do not."). Indeed, "[t]he Second Circuit has upheld decisions [both] granting and denying requests for the identity of co-conspirators." Chalmers, 410 F.Supp.2d at 286 (collecting and comparing cases).
However, in assessing whether a bill of particulars revealing the names of unindicted co-conspirators would accomplish the permissible goals of providing a defendant with necessary information to prepare for trial and avoid surprise, courts in this Circuit have routinely evaluated six factors:
Nachamie, 91 F.Supp.2d at 572. Here, evaluation of these factors indicates that a bill of particulars identifying those unindicted co-conspirators known to the government is necessary to allow the defendants to adequately prepare their defenses and avoid unfair surprise at trial.
First, the number of potential co-conspirators is potentially large as there are four indicted defendants and an unknown number of unindicted individuals. Second, the alleged duration of the conspiracy, five years, is relatively lengthy. In addition, the geographic scope of the conspiracy — which allegedly spanned from the New York metropolitan area to Nevada and potentially to unknown international locations — is expansive. Accordingly, because "a large number of co-conspirators and a long-running conspiracy" both increase the chance of surprise to the defendant at trial, both of the first two factors weigh in favor of granting a bill of particulars. Id. at 572-73 (granting bill of particulars identifying known unindicted co-conspirators in case involving a "large number of co-conspirators (eight defendants and an unknown number of unindicted co-conspirators)" and lasting a "significant period of time (more than three years)"); see also United States v. Oruche, No. 07-cr-0124, 2008 WL 612694, at *4, 2008 U.S. Dist. LEXIS 16701, at *9-10 (S.D.N.Y. Mar. 5, 2008) (finding that "breadth of the conspiracies" which spanned a "number of years and continents" weighed "in favor of disclosure of the unindicted co-conspirators").
Further, while analysis of the fourth factor reveals that the government appears to have provided significant detail to the defendants and has not unfairly overwhelmed them with mountains of unorganized discovery, it is clear that the disclosures to date fail to meet the test under the third factor and that the defendants do not have adequate information to prepare for trial and avoid unfair surprise. Specifically, in Count One of the Indictment the defendants are charged with having conspired with "others" who remain unindicted, unnamed, and potentially unknown.
Further, neither of the last two factors counsel against it. The government has asserted no basis to fear that revealing the identities of the unindicted co-conspirators will jeopardize their safety, create risk of witness tampering, or compromise an ongoing government investigation.
Finally, the relative complexity of the fraud charges facing defendants, an additional factor not considered in Nachamie, also weighs in favor of requiring disclosure. Certain charges, such as the fraud charges alleged here, by their nature carry a greater potential for causing unfair surprise at trial due to their complexity. See, e.g., Solomonyan, 452 F.Supp.2d at 350 (noting that defendants in case involving arms trafficking conspiracies that are not "complex" do not need to identify unnamed co-conspirators "in order to piece together the nature of the charges against them" in the same way as might "defendants in an intricate fraud conspiracy"); see also United States v. Patterson, No. 02-cr-0283, 2002 WL 31890950, at *10, 2002 U.S. Dist. LEXIS 24796, at *29 (S.D.N.Y. Dec. 27, 2002) (denying bill of particulars where indictment charged a "straightforward ... marijuana distribution scheme" over a period of approximately six months as opposed to a more complex conspiracy). Where, as here, the acts which form the basis of the charges may outwardly appear to be legitimate business communications, there is a greater potential for confusion over what precisely the government intends to prove at trial and a concomitant greater need to identify with some particularity the "others" who are referred to in the Indictment so that defendants can adequately prepare for trial.
Defendants also seek the identities of the alleged victims. (See Reisman 8/5/09 Mem. at 9; Graham 10/7/09 Mem. at 6; Scarlato 8/7/09 Ltr. at 1-2.) There is no dispute that the discovery provided by the government contains the identities of all the victims of the alleged fraud. (See Reisman 8/5/09 Mem. at 14-15; Gov. 8/26/09 Mem. at 14.) Further, as noted above, the discovery produced to date, consisting of approximately four boxes of indexed documents and provided more than eight months in advance of trial, is not particularly voluminous or burdensome. (See Gov. 10/23/09 Mem. at 15.) Thus, the defendants already have, in accessible format, all of the requested information regarding the identities of the alleged victims, and their request for a bill of particulars further identifying the alleged victims is therefore denied. See, e.g., Bortnovsky, 820 F.2d at 574 ("Generally, if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required.").
Next defendants contend that the government should be required to particularize the unlawful transactions that form the basis of the charged conspiracy, including: (a) "when and where the individual financial transactions allegedly occurred, [and] the amounts, financial institutions and bank accounts involved" (Reisman 8/5/09 Mem. at 9); (b) "what particular representations about the assets, B.I.M.'s business operations, and the defendants' background and business contacts were allegedly made," (Graham 10/7/09 Mem. at 6),
Returning to the permissible purpose of a bill of particulars, which is to provide information "necessary" to the defense, it is clear that a bill of particulars is unwarranted for each of defendants' specific requests in this category. See, e.g., Torres, 901 F.2d at 234. Indeed, "[a]s a general rule, the defendant does not `need' detailed evidence about the conspiracy in order to prepare for trial properly" for "[i]t is well settled that defendants need not know the means by which it is claimed they performed acts in furtherance of the conspiracy nor the evidence which the government intends to adduce to prove their criminal acts." Feola, 651 F.Supp. at 1132 (citing United States v. Carroll, 510 F.2d 507, 509 (2d Cir.1975), cert. denied, 426 U.S. 923, 96 S.Ct. 2633, 49 L.Ed.2d 378 (1976) ("There is no general requirement that the government disclose in a bill of particulars all the overt acts it will prove in establishing a conspiracy charge") (internal citation omitted)); see also United States v. Jimenez, 824 F.Supp. 351, 363 (S.D.N.Y.1993) (observing that requests for bills of particulars disclosing "whens" "wheres" and "with whoms" are routinely denied). Particulars relating to the allegedly unlawful transactions themselves, the alleged misrepresentations, and the alleged personal uses of the investor funds will be discussed in turn.
The government need not inform the defendants of the particulars such as the bank accounts, amounts, and dates of the fraudulent transactions alleged with any greater specificity than it already has. The Indictment describes in considerable detail the alleged conspiracy to defraud investors by misrepresenting that B.I.M. possessed rights to gold and other minerals such as nickel babbit, issuing "gold delivery certificates" in exchange for investor money, misleading investors into believing they would obtain a high rate of return on their investments, and falsely stating in letters to investors that the certificates "would be redeemed soon" while their investments were allegedly being used for other improper purposes. (Ind't ¶¶ 11-15.) Additionally, the government has also provided extensive additional information to defendants through post-Indictment discovery and filings. (See generally Gov. 8/26/09 Mem. at 5-9; see also Gov. 10/23/09 Mem. at 4-8.)
Defendants' attempts to analogize this case to one where the "overwhelming" amount of discovery itself triggers a need for greater specificity in a bill of particulars are unavailing. (See Reisman 8/5/09 Mem. at 7-9; Graham 10/7/09 Mem. at 2-3); see also United States v. Mahaffy, 446 F.Supp.2d 115, 119-20 (E.D.N.Y.2006) (discussing the "discernible principle" in Bortnovsky "that a large volume of discovery warrants a bill of particulars if it obfuscates the allegedly unlawful conduct and unfairly inhibits the defendants' preparation for trial" by effectively shifting the burden of proof to the defense). First, the discovery here consists of approximately 5,000 pages in less than four boxes of documents — a significant but far from overwhelming volume. (See Gov. 10/23/09 Mem. at 15.) This relatively modest volume of documents accompanied by a detailed index is far from the "mountains of documents" at issue in Bortnovsky and Nachamie. Cf. Bortnovsky, 820 F.2d at 575 (government provided "mountains of documents
Additionally, unlike the circumstances here, both Bortnovsky and Nachamie presented the quintessential "needle in a haystack" problem to defendants who were faced with sifting through thousands of legitimate transactions in an attempt to discover which transactions the government sought to prove were fraudulent. See Bortnovsky, 820 F.2d at 574 (government failed to specify "which of numerous" insurance claims were allegedly fraudulent); Nachamie, 91 F.Supp.2d at 571 (government failed to identify which of "2,000 Medicare claims" were allegedly fraudulent). By contrast, and contrary to Graham's characterizations of the allegations as "vague," "broad and non-specific," (Graham 10/7/09 Mem. at 3, 4), the Indictment and discovery materials here provide adequate notice to defendants of the crimes charged and specify precisely that the allegedly fraudulent transactions at issue involved investments made in B.I.M. in exchange for which fraudulent "gold delivery certificates" were issued.
Accordingly, the defendants' request for particulars as to "when and where the individual financial transactions allegedly occurred, [and] the amounts, financial institutions and bank accounts involved" (Reisman 8/5/09 Mem. at 9) is denied because it seeks evidentiary detail not required in order to provide fair notice of the charges. See, e.g., Jimenez, 824 F.Supp. at 363 (government "may not be compelled to provide a bill of particulars disclosing the manner in which it will attempt to prove the charges, the precise manner in which a defendant committed the crime charged, or to give a preview of its evidence and legal theories").
Similarly, defendants are not entitled to a bill of particulars identifying the particulars of the false representations alleged or the assets allegedly within B.I.M.'s control. As noted above, the Indictment, discovery, and supplemental government disclosures have provided ample notice to defendants of the crimes charged here.
For example, the Indictment gives specific notice of four allegedly fraudulent letters sent to investors regarding redemption of the gold delivery certificates and an additional letter from an investor containing a check for $200,000, and details the dates, points of origin, destinations, and the brief contents of those letters. (Ind't Counts Two through Six.) The government's motion papers provide additional detail about the alleged false representations outlined in the Indictment concerning B.I.M.'s size and business operations and defendants' backgrounds and business contacts. (See Ind't ¶ 12; see also Gov. 8/26/09 Mem. at 5-8; Gov. 10/23/09 Mem. at 4-6, 12-13.) Specifically, the government has claimed that defendants falsely represented that B.I.M. had assets in the hundreds of millions, or billions of dollars, when it had a balance rarely exceeding $100,000. Further, defendants allegedly falsely stated that Kahale was a general in the United States military and falsely claimed that Reisman was a C.P.A. (Gov. 8/26/09 Mem. at 5-8.) Further, the government has represented that while the defendants made the alleged misrepresentations both verbally and in writing, the "defendants have possessed for many
Defendants are not entitled to further particulars with respect to the alleged misrepresentations.
The request for particulars regarding the individual transactions in which funds were diverted for personal use is likewise denied. The facts section of the government's motion papers already identifies with particularity specific personal expenses on which investor money was spent. (Gov. 10/23/09 Mem. at 7-8.) Further particularization of these expenses is unnecessary to provide fair notice of the crimes charged and therefore would merely "amount to an unnecessary revelation of evidence." See, e.g., Feola, 651 F.Supp. at 1133.
Through the Indictment, discovery, and additional disclosures in other filings, in conjunction with the additional disclosure of the identities of any unindicted co-conspirators, the government will have discharged its obligation to adequately notify the defendants of the pending charges. The government is not required to do more. Accordingly, the requests for additional particulars related to the allegedly unlawful transactions, alleged misrepresentations, and alleged diversion of investor funds are denied. See Nachamie, 91 F.Supp.2d at 575 (noting that it "is not required" for the government "to lay out its proof ... months before trial").
The Indictment provides notice that the government will seek forfeiture of property "including but not limited to a sum of money up to a value of not less than $1,040,000 in United States currency, representing the amount of proceeds obtained as a result of the scheme described in the above-listed offenses." (Ind't ¶ 22.) Defendants seek to compel the government to disclose any specific property deemed forfeitable by the government. (See Graham 10/7/09 Mem. at Ex. C ¶ 6; see also Scarlato 8/7/09 Ltr. at 2.)
While two rules of federal criminal procedure require the government to provide notice of its intent to pursue criminal forfeiture,
Reisman moves to strike "the language [in the Indictment] ... relating to defendants' lies about their backgrounds," while Graham moves to strike paragraph 12 of the Indictment in its entirety as prejudicial and confusing surplusage. (See Reisman 12/1/09 Ltr.; Graham 10/7/09 Mem. at 9-11.)
Federal Rule of Criminal Procedure 7(d) allows a court, in its discretion, to strike surplusage from an indictment. A motion to strike should be granted where "the challenged allegations are not relevant to the crime charged and are inflammatory and prejudicial." United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir.1990). However, "[i]f evidence of the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language is, it may not be stricken." Id. at 1013 (internal citation omitted).
First, contrary to Reisman's assertions, the government seeks to introduce more than Reisman's omissions that he had been forced to relinquish his C.P.A. license and barred from the "security investment field." (See Reisman 12/1/09 Ltr. at 4-5.) In fact, the government seeks to introduce Reisman's affirmative misrepresentation that he possessed a C.P.A. license. (See Gov. 12/4/09 Ltr. at 5.) This misrepresentation is neither irrelevant nor prejudicial. Rather, it is highly probative of the alleged conspiracy because it may have helped to lure investors into the alleged B.I.M. scheme by lending an aura of validity and financial strength to the corporation that was to be the alleged vehicle of the fraud. Indeed, an investor who believed Reisman
Moreover, to the extent the government seeks to introduce evidence of Reisman's failure to disclose that he had been required to relinquish his C.P.A. license and barred from the "security investment field," these omissions are likewise relevant and non-prejudicial. Reisman may in fact have had a duty to disclose this information arising from any initial alleged misrepresentation that he was a C.P.A. if the investors were operating under the mistaken assumption that he did actually possess such accreditation. See Remington Rand Corp. v. Amsterdam-Rotterdam Bank, N.V., 68 F.3d 1478, 1484 (2d Cir. 1995) ("[A] duty to disclose may arise if... one party makes a partial or ambiguous statement that requires additional disclosure to avoid misleading the other party..." and "it becomes apparent ... that another party is operating under a mistaken perception of a material fact"); see also United States v. Autuori, 212 F.3d 105, 118-19 (2d Cir.2000) ("Under the mail fraud statute, it is just as unlawful to speak `half truths' or to omit to state facts necessary to make the statements made, in light of the circumstances under which they were made, not misleading.") (internal citation omitted).
Meanwhile, Graham's assertion that the misrepresentations referred to in paragraph 12 relating to the size and business operations of B.I.M. and the backgrounds and business contacts of the defendants "do not relate to the value or nature of the proposed investment" is simply incorrect. (Graham 10/7/09 Mem. at 10 (citing United States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987) (requiring a "discrepancy between benefits reasonably anticipated because of the misleading representations and the actual benefits which the defendant delivered, or intended to deliver" in order to make out conviction of mail fraud)).) Rather, a fact finder could easily conclude that an investor weighing whether to invest in a financial product backed by nickel babbit, gold, and other assets allegedly located around the globe could have anticipated greater benefits from the investment and been more willing to invest because of the alleged misrepresentations regarding B.I.M.'s status as a "robust mining concern," Kahale's status as a retired military general, and Reisman's status as a C.P.A. (See Gov. 10/23/09 Mem. at 13, 22-23.)
Thus, the misrepresentations alleged in paragraph 12 are directly related to the "very nature of the bargain" between the defendants and the investors because the alleged statements essentially misrepresented the nature and value of the investments themselves and of B.I.M. and its principals and agents. Cf. Starr, 816 F.2d at 98 (finding alleged scheme to defraud did not fall within the mail fraud statute when the "customers received exactly what they paid for"). Accordingly, paragraph 12 of the Indictment is relevant and non-prejudicial and the motions to strike this paragraph or portions of it are denied.
All defendants move for an order precluding the introduction of evidence of Reisman's other business ventures. (See Reisman 8/5/09 Mem. at 9-10; Reisman 9/3/09 Ltr.; Reisman 12/1/09 Ltr.; Graham 10/7/09 Mem. at 12-18.)
Reisman first argues that evidence of these other business ventures should be precluded under Federal Rules of Evidence 401 and 402
Alternatively, Reisman contends that the evidence should be excluded under Federal Rule of Evidence 404(b) and 403 because the dangers of "unfair prejudice, confusion of the issues, and waste of time" outweigh any probative value. (Reisman 9/3/09 Ltr. at 2; Reisman 12/1/09 Ltr. at 5-6.) Meanwhile, Graham also advocates for preclusion of the evidence and asserts that without preclusion, Reisman's trial must be severed. (Graham 10/7/09 Mem. at 18.)
Both Graham and Scarlato
The government first counters that the bulk of this "other schemes" evidence relating to Reisman is admissible against all defendants without reference to Rule 404(b) because the evidence constitutes
Further, the government alleges that both Reisman and Kahale's prior convictions constitute "direct evidence" of the charged crimes because the convictions form the basis for two of the charged misrepresentations in furtherance of the conspiracy. (See Gov. Reisman 404(b) Ltr. at 3; Gov. Kahale 404(b) Ltr. at 1; Gov. 12/4/09 Ltr.) Alternatively, the government declares that Reisman's prior conviction is also admissible as 404(b) evidence because the fraudulent scheme Reisman plead guilty to is "nearly identical to the scheme alleged in the indictment." (Gov. 12/4/09 Ltr. at 2.)
For the reasons that follow, evidence of the Philippine Islands Recovery Project, the CLH Loan Transaction, an unidentified victim known as V-4's involvement in the Crude Oil Deal, and evidence of Reisman and Kahale's prior convictions is admissible as to all defendants as direct evidence of the offenses charged pursuant to Federal Rules of Evidence 401 and 402. Evidence regarding Reisman's other business transactions with the first unidentified victim ("V-1"), specifically, Dinozine, the See It Live project, the Sugar Deal, and the Crude Oil Deal,
Direct evidence of the crimes charged in the indictment is considered relevant and admissible without reference to Federal Rule of Evidence 404(b). See, e.g., United States v. Towne, 870 F.2d 880, 886 (2d Cir.1989), cert. denied, 490 U.S. 1101, 109 S.Ct. 2456, 104 L.Ed.2d 1010 (1989). "To be relevant, evidence need only tend to prove the government's case, and evidence that adds context and dimension to the government's proof of the charges can have that tendency." United States v. Williams, 585 F.3d 703, 707 (2d Cir.2009) (internal citation omitted). "Thus, evidence is often admissible to provide background for the events alleged in the indictment or to enable the jury to understand the complete story of the crimes charged." Id. at 707-08 (noting that "the prosecution is entitled to present a complete narrative of the crime that `satisf[ies] jurors' expectations about what proper proof should be'") (quoting Old Chief v. United States, 519 U.S. 172, 188-89, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)). Evidence of uncharged criminal activity is relevant and admissible under Federal Rule of Evidence 402, without any reference to Federal Rule of Evidence 404(b) "if [the evidence] arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial."
Alternatively, evidence of prior bad acts may be introduced under Rule 404(b)
In addition to the familiar purposes outlined in Rule 404(b) itself, proper purposes for which evidence may be admitted pursuant to Federal Rule of Evidence 404(b) include to: "(1) explain the development of the illegal relationship between participants in a conspiracy; (2) explain the mutual trust that existed between conspirators; or (3) complete the story of the crime charged." United States v. Shaw, No. S2-06-cr-41, 2008 WL 4899541, at *5, 2008 U.S. Dist. LEXIS 92333, at *14 (S.D.N.Y. Nov. 13, 2008) (citing Inserra, 34 F.3d at 89). A district court has broad discretion to admit evidence pursuant to Rule 404(b) and its ruling will not be overturned on appeal absent abuse of discretion. See Inserra, 34 F.3d at 89.
The government characterizes the Philippine Islands Recovery Project as "part and parcel of the scheme charged in the indictment" and therefore "direct evidence of the charged offense" that does not require a 404(b) analysis. (Gov. 8/26/09 Mem. at 20.) Graham concedes that the "terms of the superseding indictment" supports this assertion. (See Graham 10/7/09 Mem. at 13.)
The Indictment alleges that the defendants engaged in a conspiracy where they solicited investors to invest in B.I.M.
Similarly, the government alleges that the loan transactions involving the CLH Loan Transaction and V-4's involvement in the Crude Oil Deal constitute direct relevant evidence of the crimes charged. (Gov. 8/26/09 Mem. at 25.) According to the government, an unindicted co-conspirator ("UCC") represented to a victim ("V-4") that UCC operated a nonprofit organization called CLH, which provided food and housing to the poor. (Id.) UCC allegedly further represented to V-4 that CLH needed money and convinced V-4 to become an officer of CLH in order to obtain a $50,000 loan on behalf of CLH. (Id.) UCC allegedly promised V-4 that the loaned money would in turn be invested in B.I.M., so that within 45 days V-4 would receive all his money back in addition to $25,000 profit. (Id.) In light of these promises, the government asserts that V-4 became an officer of CLH and secured a loan with his wife from HSBC which wired the loaned money directly to CLH's account and following which the money was wired to Reisman's account. (Id.)
According to the government, to memorialize this arrangement, V-4 signed a loan agreement with B.I.M. and the loan was secured with a B.I.M. gold delivery certificate. (Id.) When V-4 was unable to redeem the gold delivery certificate, the government asserts that Reisman, Kahale and Scarlato assured V-4 that the money would be repaid. (Id. at 26.) Finally, after V-4 threatened to report Reisman to the F.B.I., the government alleges that Reisman solicited and obtained an investor into the Crude Oil Deal and used those funds to repay V-4. (Id.)
Based on these proffers by the government, the CLH Loan Transaction is admissible as direct evidence of the charged offenses. If the government were to prove the facts alleged, V-4's having been convinced by members of the conspiracy to take out the loan through CLH in order to invest the money with B.I.M. comprises evidence relevant to the charged offenses.
Similarly, the Crude Oil Deal in connection with V-4 is also admissible as direct evidence of the charged offense. The government alleges that defendant Reisman solicited money from an investor into the Crude Oil Deal in order to repay V-4, a disgruntled investor in the B.I.M. scheme, and to avoid V-4's reporting the alleged
Evidence of both Reisman and Kahale's prior convictions also constitutes direct evidence of the crimes charged and is therefore admissible pursuant to Federal Rule of Evidence 402. The Indictment alleges that the defendants misrepresented their backgrounds, (Ind't ¶ 12), and the government has proffered that those misrepresentations included the falsehood that Kahale was a retired General in the United States military and that Reisman was a C.P.A. (Gov. 10/23/09 Mem. at 6.) Because evidence of these prior convictions is directly relevant to the charged misrepresentations as discussed above, the evidence is admissible against all defendants pursuant to Federal Rule of Evidence 402.
The government has noticed its intention to introduce additional evidence related to some other business activities conducted by Reisman. Specifically, in connection with the testimony of the first unidentified witness, ("V-1"), the government has indicated its intention to offer evidence of V-1's other investments with Reisman between 2000 and May 2005, including the proposed Dinozine magazine, the See It Live project, the Sugar Deal, and the Crude Oil Deal ("V-1 Transactions"). (Gov. 8/26/09 Mem. at 20-25.) The government declares that evidence of the V-1 Transactions is inextricably intertwined with the evidence regarding the charged offense, or necessary to complete the story of the crime on trial, because these other investments explain the origins and continuing relationship between Reisman and V-1. (Id. at 20-24.) Alternatively, the government claims that this evidence should be admitted as "other crimes" evidence pursuant to 404(b). (Id. at 24-25.)
Reisman first notes that the government "assumes without elaborating" that these other business ventures were fraudulent and asserts that this conclusion is "pure speculation." (Reisman 12/1/09 Ltr. at 5.) In this context, Reisman contends that evidence of Reisman's other business ventures with V-1 is "not necessary to complete the story of the crime on trial," not offered for a proper purpose, not relevant, and instead will "necessarily result in multiple trials within a trial as Mr. Reisman is forced to defend the legitimacy of these [other] projects." (Reisman 9/3/09 Ltr. at 1-2; Reisman 12/1/09 Ltr. at 5-6.)
Evidence of these deals between Reisman and V-1 does not constitute direct evidence of the conspiracy charged in the Indictment. For example, the Dinozine magazine project originated in 2000, years before Reisman ever met Kahale or was introduced to the B.I.M. investment scheme. (See Reisman 9/3/09 Ltr. at 1.)
This evidence is also inadmissible under Federal Rule of Evidence 404(b). While the government intends to offer this other act evidence for an admittedly proper purpose — namely, to show knowledge, intent, and lack of mistake or accident, (see Gov. Reisman 404(b) Ltr. at 3), this does not end the inquiry. See United States v. Gordon, 987 F.2d 902, 908 (2d Cir.1993). Rather, the court must also determine whether the proffered evidence is relevant to that proper purpose under Federal Rules of Evidence 401 and 402, and if so, whether that probative value is substantially outweighed by any risk of unfair prejudice under Federal Rule of Evidence 403. See id. Here, the government fails to overcome both of these hurdles.
First, because the government fails to demonstrate that the other-act evidence "provide[s] a reasonable basis for inferring knowledge," its offer of the evidence for that purpose must be "rejected on grounds of relevance." See id. Indeed, the relevance of the other-act evidence turns on the existence of a "close parallel" between that other act evidence and the charged conduct. Id. No such parallel exists here. None of the V-1 Transactions concerned B.I.M., gold delivery certificates, gold, or any other precious minerals or metals. The fact that the other transactions involved the same alleged victim, that no return has yet materialized on the investments, and that two of the dealings involved "venture[s] based purportedly outside the United States" are connections far too tenuous to satisfy the relevance standards outlined in Gordon, 987 F.2d at 908 (noting that it is "an abuse of discretion for the trial court to admit other-act evidence if the other act or acts are not sufficiently similar to the conduct at issue").
Moreover, there is no evidence that the other V-1 Transactions were fraudulent or illegal, and accordingly those other transactions cannot "logically show" Reisman's knowledge. See id. at 908-09 (discussing United States v. Afjehei, 869 F.2d 670, 674 (2d Cir.1989), which rejected other act evidence of a defendant's prior trips abroad to show knowledge under 404(b) "since the government had not shown that the prior trips involved narcotics, [and therefore] those trips could not logically show that [the defendant] knew the bag with which he was arrested contained narcotics").
Second, any probative value that could be attached to this evidence is substantially outweighed by the risk of unfair prejudice under Federal Rule of Evidence 403. Additionally, Reisman's fear that introduction of such evidence will lead to multiple "mini-trials" within the trial is
Accordingly, the motion to prelude evidence of Reisman's other V-1 Transactions,
The government has stated that it does not expect to introduce evidence of the Congo Deal or loan transactions involving the Able Income Fund LLC as part of its case-in-chief. (Gov. 8/26/09 Mem. at 26.) As a result, the court denies the motions to preclude the evidence of these ventures as moot.
Essentially, the defendants each seek separate trials, or, in the alternative, the exclusion at any joint trial of certain statements by co-defendants. Reisman seeks to sever his trial from that of his co-defendants on grounds that: (1) introduction of co-defendant statements would violate his rights under the Confrontation Clause of the Sixth Amendment; and (2) the volume of evidence against Reisman's co-defendants as compared to the paucity of evidence against Reisman would cause "spillover prejudice." (Reisman 8/5/09 Mem. at 11-13.) Graham separately moves to sever trial also because of the Confrontation Clause concerns raised by the potential introduction of co-defendant statements, (Doc. No. 69, Ltr. from Jeremy Gutman dated 10/28/09), as well as the potential for spill-over prejudice from evidence of the uncharged prior acts and prior criminal history of Reisman, (Graham 10/7/09 Mem. at 12-18). As the government notes, each defendant has also joined in the motions of all the others, so that it appears that each defendant seeks a separate trial.
The government opposes the motions to sever trial and to exclude the co-defendant statements. (See Gov. 8/26/09 Mem. at 27-33; Gov. 10/23/09 Mem. at 24-29.) The government first notes the powerful policy reasons behind jointly trying defendants who were indicted together, second, proposes
For the reasons that follow, the court finds that severance is not required based on Confrontation Clause concerns or warranted by any asserted risk of improper prejudicial spillover. The court therefore declines to exercise its discretion to sever trial based on these concerns and denies defendants' motions to do so.
"There is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials ... promote efficiency and `serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'" Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (internal quotation omitted); see also Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) ("It would impair both the efficiency and the fairness of the criminal justice system to require ... that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution's case beforehand."). "This preference is particularly strong where, as here, participants are alleged to have participated in a common scheme or plan." United States v. Salameh, 152 F.3d 88, 115 (2d Cir.1998) (per curiam).
Indeed, where joinder is proper,
Defendants assert that introduction of their co-defendants' statements will violate their specific trial rights under the Confrontation Clause. Defendants therefore demand severance into separate trials, or in the alternative, exclusion of the co-defendants' statements at a joint trial. For
The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. "The crux of this right is that the government cannot introduce at trial statements containing accusations against the defendant unless the accuser takes the stand against the defendant and is available for cross examination." Ryan v. Miller, 303 F.3d 231, 247 (2d Cir.2002). The Supreme Court has recognized, however, that in a multi-defendant trial, where an accusatory statement is admissible as to one defendant but not others, courts can often employ a proper limiting instruction to eliminate any Confrontation Clause concerns arising as to the other defendants, and can trust jurors to abide by such an instruction. See, e.g., Marsh, 481 U.S. at 207, 107 S.Ct. 1702 (noting that the law "almost invariably assumes that jurors follow such limiting instructions") (collecting cases).
However, there is a critical limitation on this routine presumption of faith in the jury's abilities to follow limiting instructions. In Bruton v. United States, the Supreme Court recognized that introduction at a joint trial of "the powerfully incriminating extrajudicial statements of a co-defendant, who stands accused side by side with the defendant" creates an untenable "risk that the jury will not, or cannot, follow instructions" to limit its consideration of the evidence only against the declarant. 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Accordingly, Bruton held that when a non-testifying co-defendant's statements specifically inculpating a defendant are introduced at a joint trial, courts "cannot accept limiting instructions as an adequate substitute for [the defendant's] constitutional right to cross-examination." Id. at 135-37, 88 S.Ct. 1620.
Unable to rely on a limiting instruction alone, in order to cure a Bruton problem courts generally have three options: (1) careful redactions which eliminate the references to co-defendants; (2) severance; or (3) exclusion of the confession at a joint trial. See generally United States v. Jass, 569 F.3d 47, 55-56 (2d Cir.2009).
When employing redaction to avoid Bruton concerns, the Second Circuit recognizes two acceptable types of redactions: (1) redactions eliminating altogether any reference to a co-defendant's existence; and (2) redactions replacing a co-defendant's name with neutral pronouns so that the statement, standing alone, does not refer to the co-defendant. See id. (citing Marsh, 481 U.S. at 211, 107 S.Ct. 1702) (noting that Bruton concerns are alleviated where a limiting instruction is coupled with the admission of co-defendant statements which have been redacted "to eliminate not only the defendant's name, but any reference to his or her existence" and which are only inferentially incriminating to co-defendants "when linked with other evidence introduced at trial"); see also Jass, 569 F.3d at 56 (citing United States v. Tutino, 883 F.2d 1125, 1135 (2d Cir.1989)) (holding that "a redacted statement in which the names of co-defendants are replaced by neutral pronouns, with no indication to the jury that the original statement contained actual names, and where the statement standing alone does not otherwise connect co-defendants to the crimes, may be admitted without violating a co-defendant's Bruton rights").
When courts do employ redactions involving neutral pronouns, the Second Circuit instructs that the propriety of the redactions should be analyzed with reference to two questions: "(1) did the redacted statement give any `indication to the jury that the original statement contained actual names,' and (2) did the `statement standing alone ... otherwise connect co-defendants to the crime.'" Jass, 569 F.3d at 58 (citing Tutino, 883 F.2d at 1135). Thus, in analyzing these issues, a court reviewing the admissibility of a redacted statement which employs neutral pronouns must "view the confession in isolation from the other evidence" in order to insure that "the confession, when so viewed, does not incriminate the defendant." United States v. Williams, 936 F.2d 698, 700-01 (2d Cir. 1991). If a redacted statement utilizing neutral pronouns passes this test, "it may be admitted with a proper limiting instruction even though other evidence in the case indicates that the neutral pronoun is in fact a reference to defendant." Id.
Defendants assert that severance or exclusion of the co-defendant statements are the only solutions to the potential Bruton concerns arising from the proposed introduction of their co-defendants' statements. See, e.g., Jass, 569 F.3d at 56 n. 5 ("In circumstances where a court concludes that no redaction can overcome [the] probability [that a jury will be unable to follow a limiting instruction], only two options are available: severance or exclusion of the confession at a joint trial.") Having reviewed the deposition testimony and the 302 Statements in their entirety, and specifically the highlighted and redacted portions of those statements which the government has represented it intends to offer in its case-in-chief,
Indeed, in this case, the careful excerpts and redactions proposed by the government easily "overcome the probability," if any, that a jury would be unable to follow a limiting instruction. See id. As an initial matter, the court notes that none of the excerpts from the depositions and 302 Statements that the government intends to offer include references by a defendant to any co-defendant. (See Gov. 11/24/09 Stmts. Ltr. and Exs. A-F.) Rather, the statements the government proposes to introduce as part of its case-in-chief are
Based on this clear Supreme Court precedent, the court finds that there is no basis to conclude that a jury will be unable to follow an appropriate limiting instruction or that the introduction of the proposed statements will result in violation of the defendants' Confrontation Clause rights. Therefore, severance is not required on the basis of Confrontation Clause concerns.
In the event the court declined to sever trial, the defendants have raised a host of arguments as to why the co-defendant statements should be excluded in any joint trial. As noted, the government opposes the motions to exclude the co-defendant statements and proposes to employ selective excerpting along with limited redactions so as to avoid Confrontation Clause concerns while enabling the admission of the statements.
Defendants counter that even the use of excerpted statements
First, the motion to exclude the selected portions of the deposition transcripts is granted with respect to the statements made by the defense attorney, Edward A. Platzik, Esq., ("Platzik"), who ostensibly appeared on behalf of Kahale, Graham and Scarlato during the depositions in the civil trial. The government seeks to introduce Platzik's statements during the deposition that he "acknowledges" the requests by the opposing counsel for production of documents. (See Gov. 11/24/09 Stmts. Ltr. Exs. A-F.) Defendants assert that introduction of Platzik's statements would raise an array of issues related to the propriety of Platzik's representation of the civil defendants, particularly Scarlato, the extent of his agency relationship with the civil defendants, and relevancy. Because the statements are minimally probative at best, and acknowledging without deciding the additional issues raised with respect to these statements, any statements by Platzik during the co-defendant depositions shall be inadmissible.
Next, the defendants make a broad, conclusory assertion that any proposed redactions cannot cure the Confrontation Clause concerns because "any effort by one defendant to balance the government's selections can be thwarted by another defendant's Bruton rights." (Scarlato 12/1/09 Ltr. at 1.). Defendants rely on the "rule of completeness" embodied in Federal Rule of Evidence 106,
Here, despite ominous warnings about constitutional violations, and with the exception of Graham, defendants do not identify a single portion of the transcripts which, if omitted, will "distort the meaning" of the statements or exclude "substantially exculpatory" information. See Alvarado, 882 F.2d at 651. Such vague, conclusory assertions simply cannot be a basis for either severance or exclusion of the statements.
Graham identifies three specific portions of testimony which he asserts ought to be admitted pursuant to Federal Rule of Evidence
Accordingly, the highlighted portions of the co-defendants' statements, (see Gov. 11/24/09 Stmts. Ltr. Exs. A-F), excluding the statements of Platzik, are admissible. Furthermore, the additional portions identified by Graham as necessary to explain the context of the remarks are also admissible, as detailed above, pursuant to Federal Rule of Evidence 106.
Defendants further argue that severance is required due to the potential for improper spillover prejudice from the other defendants. Reisman argues that his trial should be severed because of prejudice created "by the sheer volume of evidence against [his] codefendants, which dwarfs the scant evidence of Reisman's alleged participation in the fraud alleged in the indictment." (Reisman 8/5/09 Mem. at 12.)
"It is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials." Zafiro, 506 U.S. at 540, 113 S.Ct. 933. Indeed, "[r]ules 8(b) and 14 are designed to promote efficiency and to avoid a multiplicity of trials [so long as] these objectives can be achieved without substantial prejudice to the right of the defendant to a fair trial." Id. (internal citation and quotation omitted). Thus, in order to prevail on a motion for severance, the defendant carries the "heavy burden" of showing "not simply some prejudice but substantial prejudice." United States v. Sampson, 385 F.3d 183, 190 (2d Cir.2004) (emphasis in original). Substantial prejudice may be found where evidence admissible against the jointly-tried co-defendants "in some way affected the jury's ability fairly and rationally to evaluate the evidence of ... guilt" United States v. Hernandez, 85 F.3d 1023, 1029 (2d Cir.1996).
Here, defendants fail to meet their "heavy burden" of showing substantial prejudice and their "general, unsupported claim[s] of prejudice" are "insufficient to warrant the severance of ... properly joined" trials. Feola, 651 F.Supp. at 1122 (internal quotation omitted).
First, spillover prejudice from the comparatively greater volume of evidence implicating a co-defendant is relevant only where that evidence could not be admitted if the defendant were to have been tried separately. See United States v. Miller, 116 F.3d 641, 679 (2d Cir.1997) ("Evidence at the joint trial of alleged coconspirators that, because of the alleged conspiratorial nature of the illegal activity, would have been admissible at a separate trial of the moving defendant is neither spillover nor prejudicial ....") (internal citation omitted); see also Salameh, 152 F.3d at 115 (spillover prejudice is less likely in cases where defendants are charged in same conspiracy). Thus, here, there is no risk of prejudice where much of the evidence pointed to by defendants would be admissible in separate trials against each defendant, as explained supra Section III.B, because evidence of "the full nature and scope of a conspiracy is admissible even at the trial of lesser participants." United States v. Rahman, 854 F.Supp. 254, 264 (S.D.N.Y.1994) (internal citations omitted); see also United States v. Amato, 540 F.3d 153, 164 (2d Cir.2008) (denying severance where the bulk of the evidence "could have been introduced against [the defendant] even had he been tried alone, since it was probative of the extent to which he was involved in the conspiracy"). Moreover, the remainder of the evidence complained of has been excluded pursuant to Federal Rule of Evidence 404(b). (See supra Section III.C.)
Second, to the extent that there exists some greater quantum of proof implicating one defendant compared to another, this fact does not alone justify severance, for "differing levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials.'" Scarpa, 913 F.2d at 1015 (internal quotation omitted); see also United States v. Locascio, 6 F.3d 924, 947 (2d Cir.1993) ("joint trials involving defendants who are only marginally involved alongside those heavily involved are constitutionally permissible."). Moreover, there is no reason to believe that a cautionary instruction here will be unable to cure any prejudice that might conceivably accrue to any one defendant from a joint trial. See, e.g., Richardson, 481 U.S. at 211, 107 S.Ct. 1702
Accordingly, the motions to sever trial on the basis of either Confrontation Clause concerns or prejudicial spillover are denied, and the motions to exclude the codefendant statements are denied in part, and granted in part, as detailed above.
Defendants request disclosure of the name and address of each expert witness which the government intends to call, along with a summary of his or her anticipated testimony, and the reports, studies, or other data on which such expert testimony will rely. Federal Rule of Criminal Procedure 16(a)(1)(G) provides:
The government stated previously that it will "promptly disclose", to the defense information required under this Rule. (Gov. 8/26/09 Mem. at 33.) In light of this representation, the motion to compel disclosure of the government's expert witnesses is denied as moot but without prejudice. Defendants are invited to renew their motion for disclosure under Federal Rule of Criminal Procedure 16(a)(1)(G) if they are not satisfied by the government's response by January 7, 2010.
For the reasons set forth above: (1) The motions for bills of particulars are granted in part and denied in part. The motion for a bill of particulars regarding unindicted co-conspirators is granted, and the government is directed to provide particulars regarding the names of any unindicted co-conspirators by December 30, 2009. The motions for bills of particulars are otherwise denied.(2) The motion to strike paragraph 12 of the Indictment is denied. (3) The motions to preclude introduction of evidence are: (a) denied with respect to evidence of the Philippine Islands Recovery Project, the CLH Loan Transaction, and V-4's connection to the Crude Oil Deal; (b) denied with respect to evidence of Kahale's and Reisman's respective prior convictions; (c) denied as moot with respect to the Congo Deal and the Able Income Fund LLC given the government's stated intention not to introduce this evidence; and (d) otherwise granted with respect to evidence of Reisman's other business ventures. Thus, evidence of Reisman's other business dealings with V-1, including Dinozine, the See It Live project, the Sugar Deal, and V-1's involvement in the Crude Oil Deal, is inadmissible. (4) The motions to sever trial are denied. (5) The motions to exclude the co-defendant statements are denied in part and granted in part. Excluding the statements of Attorney Platzik, the highlighted portions of the co-defendants' statements previously identified, (see Gov. 11/24/09 Stmts. Ltr. Exs. A-F, Gov. 12/8/09 Stmts. Ltr.), are admissible, along with the additional portions of testimony identified by Graham and as amended supra Section IV.C.2. (6) The motion to direct the government to disclose its experts under Federal Rule of Criminal Procedure 16(a)(1)(G) is denied as moot, with leave to renew if defendants are unsatisfied with the government's response by January 7, 2010.
