SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF...
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 72 ---------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, -against- STEVEN DAVIS, STEPHEN DICARMINE, JOEL : SANDERS, and ZACHARY WARREN, Defendants. ----------------------------x Indictment Number 773/2014 MEMORANDUM IN SUPPORT OF OMNIBUS MOTION
Transcript of SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF...
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 72 ---------------------------x
THE PEOPLE OF THE STATE OF NEW YORK,
Plaintiff,
-against-
STEVEN DAVIS, STEPHEN DICARMINE, JOEL : SANDERS, and ZACHARY WARREN,
Defendants. ----------------------------x
Indictment Number 773/2014
MEMORANDUM IN SUPPORT OF OMNIBUS MOTION
TABLE OF CONTENTS
Page TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION .......................................................................................................................... 7
POINT I THE COURT SHOULD INSPECT THE GRAND JURY MINUTES AND DISMISS COUNTS THAT ARE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE ......................................................................................... 8
A. The Court Should Dismiss The Grand Larceny Counts (Counts Two Through Sixteen) ........................................................................................................................ 8
1. The Court Should Dismiss the Private Placement Funds Counts (Counts Two Through Fourteen) ..................................................................................... 10
2. The Court Should Dismiss the Line of Credit Counts (Counts Fifteen and Sixteen) .............................................................................................................. 13
B. The Court Should Dismiss the Falsifying Business Records Counts (Counts Seventeen through One Hundred and Four) .............................................................. 14
1. The Court Should Dismiss Counts 17 through 104 Because The Defendants Did Not Intend To Commit, Aid Or Conceal Another Crime ........................... 15
2. The Court Should Dismiss Counts 72 through 74 and 78 through 104 Because the Records Do Not Relate to the Condition or Activity of the Recipient Entities ............................................................................................... 16
3. The Court Should Dismiss the Indictment As To a Defendant If the Evidence Does Not Demonstrate That He Acted With the Requisite Knowledge and Intent To Commit the Crimes Charged ................................... 20
POINT II THE COURT SHOULD EXAMINE THE LEGAL INSTRUCTIONS GIVEN TO THE GRAND JURY ON SUBSTANTIVE AND EVIDENTIARY MATTERS, AND DISMISS ANY COUNT OF THE INDICTMENT AGAINST ANY DEFENDANT WHO WAS PREJUDICED BY INCORRECT, INCOMPLETE OR REQUIRED INSTRUCTIONS THAT WERE NOT GIVEN ................................................................................................. 21
A. Instructions Concerning Accounting Issues .............................................................. 21
1. "Backdated" Checks .......................................................................................... 23
2. Reversing Disbursement Write-Offs .................................................................. 25
3. I<ilowledge And Intent ....................................................................................... 26
B. The Use of Purported Co-Conspirators' Statements in The Grand Jury ................... 27
POINT III THE COURT SHOULD STRIKE FROM THE INDICTMENT ANY "SPEAKING" PORTION OF THE INDICTMENT NOT EXPRESSLY VOTED BY THE GRAND JURY AND ALSO ALL INFLAMMATORY, PREJUDICIAL LANGUAGE .................................................................................. 28
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A. The Court Should Strike Language of a "Speaking" Indictment If The Grand Jury Did Note Vote to (1) To Approve the "Speaking" Language and (2) to Include It In the Indictment ....................................................................................... 29
B. The COUli Should Strike Language That Is On Its Face Inflammatory, Prejudicial and Prohibited ......................................................................................... 30
POINT IV THE COURT SHOULD DISMISS COUNT ONE BECAUSE IT IS MULTIPLICITOUS .................................................................................................. 32
POINT V THE COURT SHOULD REVIEW THE GRAND JURY MINUTES AND DISMISS THE INDICTMENT IF THE DISTRICT ATTORNEY DID NOT GIVE ALL LEGALLY REQUIRED INSTRUCTIONS, GA VE INCORRECT OR INCOMPLETE LEGAL INSTRUCTIONS WITH RESPECT TO THE GRAND JURY'S OPERATIONS, OR IF THE GRAND JURY'S FORMATION AND PROCEEDINGS DID NOT COMPORT WITH LAW .......................................................................................... 33
A. The Court Should Dismiss the Indictment If the Law Regulating Which Grand Jurors Were Permitted To Vote Was Not Followed .................................................. 33
B. The Court Should Dismiss the Indictment If the Grand Jury That Voted To Return It Was Not Legally In Existence ................................................................... 35
POINT VI THE COURT SHOULD DIRECT THE PEOPLE TO PROVIDE THE DISCOVERY AS WELL AS THE BILL OF PARTICULARS REQUESTED BY THESE DEFENDANTS ..................................................................................... 36
CONCLUSION ............................................................................................................................. 44
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TABLE OF AUTHORITIES
CASES
Boyd v. United States, 908 A.2d 39 (D.C. 2006) ........................................................................................................... 38
Brady v. Maryland, 373 U.S. 83 (1963) .................................................................................................................... 36
Canelo v. C. 1 R., 447 F .2d 484 (9th Cir. 1971) ..................................................................................................... 25
Kunze v. C.lR., 19 T.C. 29 (1952), afj'd, 203 F.2d 957 (2d Cir. 1953) .............................................................. 24
Loose v. United States, 74 F .2d 147 (8th Cir. 1934) ....................................................................................................... 23
People v. Aarons, 296 A.D.2d 508 (2d Dep't 2002) .............................................................................................. 32
People v. Alonzo, 16 N.Y.3d 267 (2011) ......................................................................................................... 32, 33
People v. Bac Tran, 80 N. Y.2d 170 (1992) ............................................................................................................... 27
People v. Banks, 150 Misc.2d 14 (Sup. Ct. Kings Cnty. 1991) ................................................................ 17, 19,20
People v. Bel Air Equip. Corp., 46 A.D.2d 773 (2d Dep't 1974), aff'd, 39 N.Y.2d 48 (1976) ........................................................................................................ 17
People v. Bolden, 194 A.D.2d 834 (3d Dep't 1993) .............................................................................................. 12
People v. Brinkman, 309 N. Y. 974, (1956) ................................................................................................................ 33
People v. Caban, 5 N. Y .3d 143 (2005) .................................. ; .............................................................................. 27
People v. Cannon, 210 A.D.2d 764 (3d Dep't 1994) .............................................................................................. 22
People v. Cartwright, 293 A.D.2d 882 (3d Dep't 2002) .............................................................................................. 27
People v. Collier, 72 N.Y.2d 298 (1988) ................................................................................................... 33, 34, 35
People v. Collins, 12 A.D.3d 33 (1st Dep't 2004) .................................................................................................. 31
People v. Darrisaw, 206 A.D.2d 661 (3d Dep't 1994) .............................................................................................. 22
People v. Diaz, 209 A.D.2d 1 (1st Dep't 1995) .................................................................................................. 27
111
People v. Eun Sil Jang, 17 A.D.3d 693 (2d Dep't 2005) ................................................................................................ 34
People v. Green, 188 A.D.2d 662 (2d Dep't 1993) .............................................................................................. 27
People v. Harris, 181 Mise.2d 670 (Sup. Ct. Bronx Cnty. 1999) ......................................................................... 34
People v. Headley, 37 Mise.3d 815 (Sup. Ct. Kings Cnty. 2012) ...................................................................... 16, 17
People v. Isla, 96 A.D.2d 789 (1st Dep't 1983) ................................................................................................ 26
People v. Jennings, 69 N.Y.2d 103 (1986) ........................................................................................................... 9, 10
People v. Kim, 209 A.D.2d 167 (1stDep't 1994) .............................................................................................. 31
People v. Kirnon, 39 A.D.2d 666 (1st Dep't), aff'd, 31 N.Y.2d 877 (1972) .......................................................... 10
People v. Kisina, 14 N.Y.3d 153 (2010) ............................................................................................................... 18
People v. Lancaster, 69 N.Y.2d 20 (1986) ........................................................................................................... 11,22
People v. Linw'dos, 104 Mise.2d 56 (Sup. Ct. Queens Cnty. 1980) ......................................................................... 18
People v. Norman, 85 N.Y.2d 609 (1995) ............................................................................................................... 13
People v. Norman, No. 6435/03,2004 WL 2624644 (Sup. Ct. Kings Cnty. Nov. 16,2004) ...................... 17,18,19
People v. a 'Neill, 285 A.D.2d 669 (3d Dep't 2001) .............................................................................................. 27
People v. Osborne, 165 Mise.2d 900 (Sup. Ct. Kings Cnty. 1995) .......................................................................... 33
People v. Papatonis, 243 A.D.2d 898 (3d Dep't 1997) .............................................................................................. 17
People v. Pelchat, 62 N.Y.2d 97 (1984) ................................................................................................................. 22
People v. Perez, No. 2664/2000,2001 WL 1603461 (Sup. Ct. Queens Cnty. July 11,2001) ............................. 16
People v. Pe1'1Y, 199 A.D.2d 889 (3d Dep't 1993) ........................................................................................ 34, 35
People v. Quinones, 8 A.D.3d 589 (2004) ................................................................................................................. 32
People v. Reynolds, 147 A.D.2d 961 (4th Dep't 1989) ............................................................................................. 13
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People v. Salko, 47 N.Y.2d 230, rearg. denied, 47 N.Y.2d 1010 (1979) ............................................................ 27
People v. Saperstein, 2 N.Y.2d 210 (1957) ................................................................................................................. 33
People v. Smalls, 81 A.D.3d 860 (2d Dep't 2011) ................................................................................................ 32
People v. Tolbert, 198 A.D.2d 132 (1stDep't 1993) .............................................................................................. 31
People v. Townsend, 127 A.D.2d 505 (1st Dep't 1987) .............................................................................................. 26
People v. Valles, 62 N.Y.2d 36 (1984) ................................................................................................................. 11
People v. Wade, 260 A.D.2d 946 (3d Dep't 1999) .............................................................................................. 27
United States v. Agurs, 427 U.S. 97 (1976) .................................................................................................................... 37
United States v. Bagley, 473 U.S. 667 (1985) .................................................................................................................. 38
Weathelford v. Bursey, 429 U.S. 545 (1977) .................................................................................................................. 36
STATUTES AND OTHER AUTHORITIES
26 C.F.R. § 1.166(f) ...................................................................................................................... 25
26 C.F.R. § 1.446-1(c)(i) .............................................................................................................. 23
26 C.F.R. § 1.451-2(a) .................................................................................................................. 23
CPL § 60.22 .................................................................................................................................. 27
CPL § 190.30(7) ............................................................................................................................ 22
CPL § 190.65(1) ...................................................................................................................... 13,27
CPL § 200.50(7)(a) ....................................................................................................................... 29
CPL § 200.95(5) ............................................................................................................................ 36
CPL § 210.20(1)(b) ......................................................................................................................... 8
CPL § 210.20(1)(c) ................................................................................................ ....................... 11
CPL §210.25(1) .............................................................................................................................. 8
CPL §210.30 .................................................................................................................................. 8
CPL § 210.30(3) .............................................................................................................................. 8
CPL § 210.35(5) ............................................................................................................................ 11
CPL §240.40(1)(a) .................................................................................................................. 36,38
CPL §240.40(1)(c) ........................................................................................................................ 36
N.Y. Const. Art. I, § 6 ................................................................................................................... 29
NYUCC § 3-114 ........................................................................................................................... 24
NYUCC § 3-114(a) ....................................................................................................................... 24
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NYUCC § 3-114(2) ....................................................................................................................... 24
Penal Law § 15.05 ................................................................................................................... 21,26
Penal Law § 15.15 ................................................................................................................... 21,26
Penal Law § 15.20 ................................................................................................................... 21,26
Penal Law § 105.00(1) .................................................................................................................. 27
Penal Law § 155.00(1) .................................................................................................................... 9
Penal Law § 155.00(3) .................................................................................................................... 9
Penal Law § 155.00(4) .................................................................................................................... 9
Penal Law § 155.05(1) .................................................................................................................. 20
Penal Law § 155.05(2)(a) ............................................................................................................. 20
Penal Law § 155.05(2)(d) ....................................................................................................... 12, 13
Penal Law § 175.00(2) .................................................................................................................. 17
Penal Law § 175.05 ....................................................................................................................... 20
Penal Law § 190.60 ....................................................................................................................... 20
6 N.Y. Prac. Criminal Law § 12:5 (3d ed.) ..................................................................................... 9
I.R.S. TAM 9432002 (Aug. 12,1994) ........................................................................................... 25
Donnino, Practice Commentary, McKinney's Consol. Laws § 155.00 (2010) .............................. 9
Preiser, Practice Commentary, CPL § 200.10, McKinney's Consol. Laws, Book llA (2007) ................................................................................................................. 28,33
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INTRODUCTION
This memorandum of law is submitted on behalf of defendants Steven Davis, Stephen
DiCarmine, and Joel Sanders in support of their omnibus motion. The motion asks the Court to
grant several different forms of relief.
The investigation leading to this prosecution was instigated in April 2012 by some
disaffected partners of Dewey & LeBoeuf ("D&L") who sought to blame the financial travails of
D&L on the management of the firm, ignoring the fact the firm's distress was caused by a
combination of The Great Recession, the voracious greed of some of the firm's patiners, the
decisions of several key patiners to defect, and the publicity engendered by the District
Attorney's investigation that torpedoed an impending merger with another law firm, as well as
D&L's ongoing negotiations with its lenders to renew its credit facility. While some former
employees of D&L have pleaded guilty to various crimes that they apparently believe that they
committed at D&L, the COUli should not let the defendants in this case become the scapegoats
for things these defendants did not do or approve. A review of the grand jury minutes will
demonstrate the many reasons why the Court may, and should, dismiss the cunent indictment.
For the reasons that follow, the defendants respectfully request that the Court inspect the
grand jury minutes and, upon inspection: (1) dismiss Counts One (scheme to defraud) and One
Hundred and Five (Martin Act) based on the defendants' lack of the requisite knowledge and
intent; (2) dismiss Counts Two through Sixteen (grand larceny) based on the defendants' lack of
intent to permanently deprive their lenders ofpropeliy; (3) dismiss Counts Seventeen through
One Hundred and Four (falsifying business records) because they rely on the legally insufficient
grand larceny counts and certain of the counts do not relate to business records to which this
offense applies; and (4) dismiss all counts as necessary to address inadequate instructions or
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other flaws in the grand jury presentation. The defendants further request that the Court direct
the District Attorney to comply with the defendants' valid demands for discovery and request for
a bill of particulars. I
POINT I
THE COURT SHOULD INSPECT THE GRAND JURY MINUTES AND DISMISS
COUNTS THAT ARE NOT SUPPORTED BY LEGALL Y SUFFICIENT EVIDENCE
The Court should inspect the record of the proceedings before the grand jury, and upon
inspection dismiss various counts of the indictment that are not suppOlied by legally sufficient
evidence. See CPL §§ 210.20(1)(b), 210.25(1) and 210.30. The defendants appreciate that the
Court has already asked to have the grand jury minutes provided to it and so may have already
reviewed them. While the Court may have already noted deficiencies in the record, Messrs.
Davis, DiCarmine and Sanders respectfully ask the Court to pay particular attention to issues
raised here as it continues its review. The defendants also ask the Court to release the minutes to
them so that they may assist the COUli in making its determination on this motion. CPL § 210.30
(3). Release of the minutes is patiicularly appropriate given the complexity of the accounting
instmctions as detailed infiAa.
A. The Court Should Dismiss The Grand Larceny Counts (Counts Two Through Sixteen)
The indictment alleges that in April 2010, D&L refinanced its debts with a $150 million
private placement of securities with 13 bondholders (insurance companies). Counts Two
through Fourteen accuse the defendants of grand larceny in the first degree and are based on the
Each defendant adopts the arguments made in separate motions to dismiss filed individually by these defendants and co-defendant Zachary Warren to the extent that the arguments in support of those motions are applicable to each defendant and redound to his benefit.
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alleged thefts from those bondholders. The evidence before the grand jury could not possibly
satisfy the intent element of grand larceny, and therefore the Court should dismiss these counts.
"A person steals property and commits larceny when, with intent to deprive another of
property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains
or withholds such property from an owner thereof." PL § 155.00(1). "Unlike the 'taking'
element, which is satisfied by the temporary exercise of dominion and control over property, the
intent required for larceny is to bring about a permanent, or virtually permanent, change in the
control of or benefit from the property." 6 N.Y. Prac. Criminal Law § 12:5 (3d ed.). The statute
defines to "deprive" property as:
(a) to withhold it or cause it to be withheld from him permanently or for so extended a period of time or under such circumstances that the major portion of its economic value or benefit is lost to him, or (b) to dispose of the propeliy in such manner or under such circumstances as to render it unlikely that the owner will recover such property.
PL § 155.00(3). Similarly, to "appropriate" is defined as:
(a) to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (b) to dispose of the propeliy for the benefit of oneself or a third person.
PL § 155.00(4). These provisions of the Penal Law are crystal clear -larceny
requires the intent to deprive the owner of its propeliy permanently. As the Court of Appeals
held in People v. Jennings, "[t]he mens rea element oflarceny ... is simply not satisfied by an
intent temporarily to use property without the owner's permission, or even an intent to
appropriate outright the benefits of the property's short-term use." 69 N.Y.2d 103, 119 (1986)
(emphasis added). Rather, "the concepts of 'deprive' and 'appropriate,' which are 'essential to a
definition of larcenous intent,' connote a purpose. .. to exert permanent or virtually permanent
control over the property taken, or to cause permanent or virtually permanent loss to the owner
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of the possession and use thereof." Id. at 118 (emphasis added); Donnino, Practice Commentary,
McKinney's Consol. Laws, § 155.00 (2010) (same); see also People v. Kirnon, 39 A.D.2d 666,
667 (1st Dep't) ("To deprive is defined in terms of intent to withhold or exercise control
permanently or long enough to acquire or deprive the owner of the major portion of the
property's economic value or dispose of it for the benefit of the thief or another or under
circumstances rendering it unlikely that the owner will recover it (P.L. § 155.00(3) and (4))."),
ajJ'd, 31 N.Y.2d 877 (1972). The Jennings Court made clear, moreover, that where an entity has
ceded possession of its money to another, it has no right to the "economic value or benefit" of
the money during the period the other had its use. Jennings, 69 N.Y.2d at 120.
1. The Court Should Dismiss the Private Placement Funds Counts (Counts Two Through Fourteen)
With this law made plain, it is apparent the grand larceny charges were insufficiently
supported before the grand jury. Counts two through fourteen rest on the money the defendants
are accused of having stolen via the firm's private placement. As part of this private placement,
the firm received a total of $150 million from the investing bondholders in exchange for notes
that obligated the firm to pay the principal back at certain set dates and interest at certain set
intervals?
The evidence before the grand jury cannot possibly satisfy the intent element of grand
larceny, and therefore the Court should dismiss these counts. If the prosecutors' presentation to
the grand jury was fair and thorough, the evidence before the grand jury demonstrates beyond
any doubt that:
2
ell The first principal payment on the private placement notes would not become due until April 16, 2013, which was after D&L filed for bankruptcy and which occurred more than two years after the firm obtained the money;
The principal payments on the notes were due on April 16, 2013; April 16, 2015; April 16, 2017; and April 16, 2020.
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411 During those two years every interest payment on the notes was made timely;
• D&L was on the brink of merging with another law firm when the District Attorney's investigation was made public (not by these defendants), scotching the merger as well as its negotiations to refinance its credit facility, and destroying any possibility of repaying the notes when they eventually would become due; and
• These defendants did not take the firm into bankruptcy causing it to default; others made that decision after these defendants were relieved of any authority at the firm.
If the prosecutors did not present that exculpatory evidence to the grand jury, this is the
rare case where the failure to present exculpatory evidence to the grand jury has resulted in a
legally defective presentation, requiring the dismissal of the indictment or at minimum these
counts ofthe indictment. CPL §§ 21O.20(1)(c); 210.35(5).
The test for when a prosecutor must present legally exculpatory evidence to a grand jury
turns on the potential of the exculpatory evidence to make out a complete defense or to eliminate
a "'needless or unfounded prosecution.'" People v. Valles, 62 N.Y.2d 36,38 (1984); see also
People v. Lancaster, 69 N.Y.2d 20,26 (1986). Where the evidence makes out a complete
defense or eliminates a needless or unfounded prosecution, the prosecution's failure to present
that evidence dictates the dismissal of the indictment. Valles, 62 N.Y.2d at 38.
Applying this principle here, dismissal of the grand larceny counts is necessary because
there could have been no evidence before the grand jury that when D&L obtained the money via
the private placement any of these three defendants intended that the money would not be repaid
with interest when due. Even if the evidence showed that the defendants undertook to obtain the
private placement funds wrongfully (which the evidence will not show), without proof in the
grand jury that they did so with the intent to never pay the funds back, the grand larceny charges
cannot be sustained. For example, in People v. Bolden, the Third Department reversed a
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conviction for attempted grand larceny in the third degree based on an attempt to obtain a loan
by fraud because, inter alia, "[t]he evidence establishe[ d] that defendant intended to obtain the
loan, but whether he intended to repay it [wa]s purely a matter of speculation." 194 A.D.2d 834,
836 (3d Dep't 1993). Here, there can be no evidence before the grand jury that these three
defendants intended to bring about a permanent or virtually permanent change in the control of
or in the benefit from the property. The grand jury should have been provided with evidence
demonstrating that these three defendants fully intended at the time the private placement was
effectuated for D&L to make all required interest and principal payments when due.
Permitting this private placement to give rise to a grand larceny under these
circumstances would ignore Sections 155.00(1), 155.00(3) and 155.00(4), overrule Jennings and
its progeny, and allow any unpaid loan to become the potential basis for a larceny prosecution.
That result eviscerates well-established law. The defendants request that the COUlt scrutinize the
grand jury minutes for evidence of a permanent intent to deprive; they submit that the COUli will
find none. Then the Court should dismiss these counts.
In addition to the lack of evidence on intent to permanently deprive, if the grand larceny
charges were based on the theory of grand larceny by false promise, Messrs. Davis, DiCarmine
and Sanders submit that the grand jury minutes also lack evidence of the particularized
requirements of that charge. PL § 155.05(2)(d) provides that:
[i]n any prosecution for larceny based upon a false promise, the defendant's intention or belief that the promise would not be performed may not be established by or inferred from the fact alone that such promise was not performed. Such a finding may be based only upon evidence establishing that the facts and circumstances of the case are wholly consistent with guilty intent or belief and wholly inconsistent with innocent intent or belief, and excluding to a moral certainty every hypothesis except that of the defendant's intention or belief that the promise would not be performed.
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PL § 155.05(2)(d). 3 While moral certainty is a standard only to be applied by the finder of fact,
in order to return a valid true bill, the grand jury still must have had before it "competent
evidence which, if accepted as true, would establish every element of [the] offense charged,"
CPL § 190.65(1), including that the defendants "harbor[ed] a present intention not to perform"
when they made the promises at issue here. People v. Norman, 85 N.Y.2d 609, 619 (1995)
(larceny by false promise is "limited to situations in which an individual has made a promise
while harboring a present intention not to perform") (emphasis added). Such proof was lacking
here. The minutes cannot demonstrate that at the time D&L received the private placement
funds, these defendants did not intend for D&L to fulfill the promises it made to obtain the funds
or that they did not believe that D&L would fulfill those promises. D&L used the funds for their
stated purpose, made interest payments and recorded the loan-all conduct totally inconsistent
with a present intention to deprive the investors of their funds permanently. See People v.
Reynolds, 147 A.D .2d 961, 963 (4th Dep't 1989) (finding use of funds for a stated purpose,
recording loans, and making interest payments "inconsistent with proof to a moral certainty that
defendant never intended to repay the[] loans"). Thus, to the extent the grand jury's indictment
rested on a theory of larceny by false promise, the evidence would have been insufficient on that
ground as well.
2. The Court Should Dismiss the Line of Credit Counts (Counts Fifteen and Sixteen)
Counts Fifteen and Sixteen accuse Messrs. Davis, DiCarmine and Sanders of grand
larceny in the first degree, apparently as a result of D&L obtaining lines of credit from two giant
"A person obtains propelty by false promise when, pursuant to a scheme to defraud, he obtains propelty of another by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct, and when he does not intend to engage in such conduct or, as the case may be, does not believe that the third person intends to engage in such conduct." PL § 155.05(2)(d).
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banks (Bank of America and HSBC USA) over an extended period oftime. As is the case with
respect to the counts based on the private placement, the evidence before the grand jury could
not have demonstrated that these defendants intended permanently to deprive the banks of
property by drawing down the lines of credit; on the contrary, if the presentation to the grand
jury was fair and thorough, the evidence would have demonstrated that drawdowns on the lines
of credit occUlTed as required yearly, and that until the film filed for bankruptcy, the banks lost
no money. Similarly, no evidence could have been before the grand jury that demonstrated that
when each line of credit was secured or renewed, or when each drawdown on a line occurred,
these defendants had the intent for D&L to fail to fulfill the commitments the firm had made to
the banks. Moreover, if the grand jury presentation was fair and thorough, it demonstrates that
drawdowns the firm made in 2012, prior to filing for bankruptcy, were made at the direction of
several partners on the firm's Operations Committee, and against the advice of Mr. Sanders, and
despite the concerns of Mr. Davis and objections raised by Mr. DiCarmine. Thus, the Court
should dismiss these grand larceny counts for the same reasons that it should dismiss the private
placement counts.
B. The Court Should Dismiss the Falsifying Business Records Counts (Counts Seventeen through One Hundred and Four)
The indictment contains 88 separate counts of Falsifying Business Records in the First
Degree, in violation ofPL § 175.10. Indictment, Counts 17-104. Each of the 88 counts is pled
with the standard language that the defendant(s) charged in the count committed the acts "with
intent to defraud and to commit another crime and to aid and conceal the commission thereof."
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Id. The other crime is not specified, although to the extent it is the grand larcenies charged
elsewhere in the Indictment, all 88 Falsifying Business records counts must be dismissed.4
In addition, while 58 of the 88 false business records counts relate to D&L's own
business records,s the other 30 counts relate to the purported business records of entities other
than D&L, including D&L's accounting firm, banks and bondholders.6 Included in these 30
counts were the management representation letters to Ernst & Young ("E& Y") (Indictment,
Counts 72-74) and compliance certificates that D&L was required to provide to various large
banks, among other entities (Indictment, Counts 78-104). But because they relate to the financial
condition of D&L, not the business entities who received them, even if these counts survive
dismissal in light of their nexus to grand larceny, they must be dismissed on this basis.
1. The Court Should Dismiss Counts 17 through 104 Because The Defendants Did Not Intend To Commit, Aid Or Conceal Another Crime
Counts 17 through 104 charge one or more defendants with violating Penal Law §
175.10, which criminalizes the falsification of business records with the intent to defraud, which
must include an intent to commit another crime or aid or conceal the commission of another
crime. The defendants lacked the requisite intent to commit grand larceny for the simple reason
that they did not intend to deprive the banks and bondholders of the permanent possession of
property. To the extent the indictment relies on the alleged larcenies as the "other crime," all of
the false business record counts are legally defective. See People v. Perez, No. 2664/2000, 2001
4
6
The defendants tried to have the prosecution identify the "other crimes" by serving a Request for a Bill of Particulars for that information on May 28, 2014. The prosecution denied the request in a cursory response dated June 13,2014, stating that such information is "evidentiary" - despite being a statutory element of the charge.
Indictment, Counts 17-71, 75-77.
Indictment, Counts 72-74, 78-104.
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WL 1603461, at *4 (Sup. Ct. Queens Cnty. July 11, 2001) (holding that the dismissal of counts
related to the "other crime[ s]," "negates an essential element" ofthe counts charging Falsifying
Business Records in the First Degree, requiring the dismissal of the Falsifying Business Records
counts).
Moreover, celiain of those counts allege that the defendants caused false entries to be
made in the business records of JPMorgan Chase Bank, N.A. ("JPMorgan"); Citibank N.A.
("Citibank"); Barclays Bank PLC ("Barclays"); and Wells Fargo Bank, N.A. ("Wells Fargo"),
despite the fact that none of those banks are alleged to be the victim of any grand larceny or
other crime charged in the Indictment. Indictment, Counts 78-89. Those counts must therefore
be dismissed on this alternative ground. See People v. Headley, 37 Misc.3d 815, 833 (Sup. Ct.
Kings Cnty. 2012) (dismissing charges of falsifying business records in the first degree where
there was no evidence the defendant committed grand larceny against the entity that received the
records).
2. The Court Should Dismiss Counts 72 through 74 and 78 through 104 Because the Records Do Not Relate to the Condition or Activity of the Recipient Entities
Counts 72 through 74, which relate to the management representation letters sent to
E&Y, and Counts 78 through 104, which relate to the compliance celiificates sent to the banks
and bondholders, charge the defendants (in various combinations) with causing false entries to be
made in the business records of an entity other than D&L. 7 These counts rest on the contention
that the defendants submitted records reflecting the financial condition of D&L to outside
entities. But the Penal Law clearly defines a "[b Jusiness record" as "any writing or atiicle ...
7 While the Indictment indicates which entities have the allegedly false business records, it does not identify the false business records themselves. Those were later identified in the prosecution's Voluntaty Disclosure Form ("VDF") as either a D&L management representation letter or a D&L year-end compliance celiificate. See VDF, at 3.
16
kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or
activity." PL § 175.00(2) (emphasis added). A business record can only evidence or reflect an
enterprise's condition or activity when it is made in the enterprise's own financial books and
records. See People v. Bel Air Equip. Corp., 46 A.D.2d 773, 774 (2d Dep't 1974) (a moving
company's duplicate copies of inflated payment vouchers were not business records because
"[n]o false entry was made in any business journal or book of account"), ajJ'd, 39 N.Y.2d 48
(1976).
The D&L records at issue here thus could only qualify as the business records within the
purview of the statute if those records evidence or reflect the financial condition or activity oJthe
recipient enterprises. Indeed, New York courts have repeatedly dismissed false business records
charges where, as here, the underlying records do not reflect the recipient enterprises' own
financial condition or activity. See, e.g., People v. Norman, No. 6435/03,2004 WL 2624644, at
**7-9 (Sup. Ct. Kings Cnty. Nov. 16,2004) (re-election committee's false contribution report
did not reflect the "condition or activity" of the recipient New York State Board of Elections);
People v. Papatonis, 243 A.D.2d 898, 899 (3d Dep't 1997) (false employment application did
not constitute the hiring company's business record because, although kept on file, it did not
reflect the condition or activity ofthe company).
Likewise, the courts have dismissed such charges where the submission of documents to
a separate entity did not give rise to a financial obligation on the recipient's part. See, e. g. ,
Headley, 37 Misc.3d at 832 (false business proposal and W-9 submitted to the New York City
Transit Authority did not reflect the Authority's condition or activity because they did not reflect
a financial obligation on the Authority's behalf); People v. Banks, 150 Misc.2d 14, 18 (Sup. Ct.
Kings Cnty. 1991) (fraudulent audit and statement of organization submitted to charities for
17
funding did not reflect the condition or activity of the recipient charities because they did not
create any "obligations to pay" on the charities' part); cf People v. Kisina, 14 N.y'3d 153, 159-
60 (2010) (physician's false insurance claims constituted insurance company's business records
because the company's "financial condition is affected by [the] false submissions, as they give
rise to liabilities under its policies[,] ... specifically, its legal obligation to reimburse medical
providers for services"); People v. Linardos, 104 Misc.2d 56, 59 (Sup. Ct. Queens Cnty. 1980)
(surgeon's false insurance claim forms constituted the insurance company's business records
because the "forms evidenced and were intended to evidence in the records of [the insurance
company] its obligation to pay the physician for surgery performed").
a. The Management Representation Letters in Counts 72 through 74
Counts 72 through 74 of the Indictment charge that, in 2009 through 2011, Davis and
Sanders "made and caused a false entry into the business records of ["E& Y"]" by submitting to
E&Y falsified management representations containing various statements about D&L's financial
condition, in connection with E&Y's annual audit ofD&L's financial statements. But those
letters plainly reflected the financial condition and activity ofD&L, not ofE&Y, and they cannot
therefore be the basis of false business record charges.
Indeed, the management representation letters state that the representations are provided
as part of the audit process to enable EY to form an opinion whether D&L' s financial statements
were presented fairly in conformity with a tax basis of accounting. Documents do not become
the business records of the recipient merely because the recipient reviews them for compliance
purposes. In Norman, for example, a re-election committee submitted a false contribution report
to the New York State Board of Elections, which relied on the contribution report to ensure that
the committee complied with election laws. 2004 WL 2624644 at **7-9. The court held that the
contribution report was not a business record of the Board of Elections because it '''reflected the
18
· .. activity' of the Committee, and not of the Board." Id. at *9. Similarly, the management
representation letters here did not in any sense reflect E&Y's financial condition or activity. Nor
did they give rise to any financial obligation ofE&Y.
Because the management representation letters that are the subject of Counts 72 through
74 do not constitute business records ofE&Y, they must be dismissed.
b. The Compliance Certificates in Counts 78 through 104
Counts 78 through 92 of the Indictment charge that each February from 2009 through
2012, Sanders "made and caused a false entry in the business records of' several banks,
including JPMorgan, Citibank, Barclays, Wells Fargo, Bank of America, N.A. and HSBC Bank
USA, N.A. (the "Banks"). Sanders is alleged to have signed compliance certificates that were
sent to the Banks enclosing D&L' s financial statements for the prior years and confirming that
D&L was not in default under the relevant credit agreements. In April 2010, D&L also raised
money through a bond offering, and in subsequent years Sanders sent the same or similar
compliance celiificates to the bondholders that subscribed to that bond offering (the
"Bondholders"). Counts 93 through 104 charge that, in 2011 and 2012, Sanders "made and
caused a false entry in the business records of [the Bondholders]."
Just as the management representation letters did not reflect the financial condition or
activity ofEY, the compliance certificates did not reflect the financial condition or activity of the
Banks or Bondholders. Financial statement documents submitted in connection with loans are
not business records of the recipient entity under New York law. In People v. Banks, 150
Misc.2d 14, for example, the defendant submitted a fraudulent audit and statement of the
organization's finances in connection with funding and loan applications. The cOUli rejected the
notion that such documents are the business records of the recipient organization, stating:
19
Only in the tautological sense that every piece of paper submitted to an enterprise by a person seeking to do business with it reflects the activity of that enterprise do the documents at issue here come within these statutes. . . . Under the People's overbroad construction, these Penal Law sections would apply to every loan application containing a false statement about the borrower that the bank or other lender puts in its files.
ld. at 18 (emphasis in original).
The compliance certificates reflect the financial condition of D&L, the borrower - not
that of the Banks or Bondholders. And, unlike the documents in Kisina and Linardos, the
compliance certificates did not give rise to any further obligations to pay on behalf of the Banks
or Bondholders. Because the compliance certificates do not constitute the business records of
the Banks or Bondholders, Counts 78 through 104 of the Indictment must be dismissed.
3. The Court Should Dismiss the Indictment As To a Defendant If the Evidence Does Not Demonstrate That He Acted With the Requisite Knowledge and Intent To Commit the Crimes Charged
At its core, the validity of this indictment rests on the defendants' knowledge and
understanding of complex, arcane and nuanced accounting rules, regulations and practices, such
as when IRS regulations and accounting standards permit disbursement write-offs to be reversed
or antedated checks to be included in the previous year's income. See Point II, infi·a. For a
defendant to be criminally liable, moreover, the prosecution must show that he had the requisite
intent. For example, these defendants could not have committed grand larceny if they did not
know that they were acting or did not intend to act "wrongfully." PL §155.05(l). Nor could they
have stolen money by false pretenses or falsified business records or engaged in a scheme to
defraud by false or fraudulent pretenses if they did not know that representations or entries were
"false" or "fraudulent." PL §§ 155.05(2)(a); 175.05; 190.60. Reaching these mentally culpable
states in this case by necessity means an understanding of the complicated accounting rules and
regulations at issue. But if the grand jury presentation was thorough and fair, the evidence will
20
show that none of these three defendants had that understanding. The evidence would have
shown that none was a CPA or even an accountant, but rather that:
• Mr. Davis, who had an undergraduate degree in medieval history, had practiced energy law before he became D&L's chair, and had no training in accounting;
• Mr. Sanders, although CFO of the firm, was a non-practicing lawyer and not a CP A or even an accountant, and had no special training in law firm accounting; and
• Mr. DiCarmine, another non-practicing lawyer and not a CPA or even an accountant, had no training in accounting, and his responsibilities at D&L focused on personnel matters and operations and not accounting.
In these circumstances, it is critical for the Court to scrutinize carefully whether the evidence in
the grand jury demonstrates that each defendant had the requisite understanding of the applicable
accounting rules and regulations and legal accounting standards to know that the representations
or entries at the bottom of each separate charge was false or fraudulent. If the evidence does not
establish that requisite knowledge and criminal intent, the Court should dismiss the indictment.
PL §§ 15.05, 15.15, 15.20.
POINT II
THE COURT SHOULD EXAMINE THE LEGAL INSTRUCTIONS GIVEN TO THE GRAND JURY ON SUBSTANTIVE AND EVIDENTIARY
MATTERS, AND DISMISS ANY COUNT OF THE INDICTMENT AGAINST ANY DEFENDANT WHO WAS PREJUDICED BY INCORRECT,
INCOMPLETE OR REQUIRED INSTRUCTIONS THAT WERE NOT GIVEN
A. Instructions Concerning Accounting Issues
The indictment lists eight different "fraudulent methods" purpOliedly engaged in by the
defendants as pati of the scheme to defraud alleged in Count One. Indictment pp. 4-5. Each of
these "methods" raises accounting issues. Clearly, the draftsperson of the indictment believed
that these methods were fraudulent under some unatiiculated accounting standard. Just as
clearly, the grand jury should have been cOl1'ectly and completely instructed on the governing
21
accounting standards and the law that determines whether various accounting treatments are
permissible.
While the prosecutor's discretion in presenting his case to the grand jury is broad, it "is
not unbounded, for it is settled that at a Grand Jury proceeding, the prosecutor performs the dual
role of advocate and public officer, charged with the duty not only to secure indictments but also
to see that justice is done; 'as a public officer he owes a duty of fair dealing to the accused and
candor to the courts[.]'" People v. Lancaster, 69 N.Y.2d at 26; People v. Pelchat, 62 N.Y.2d 97,
105 (1984) (the prosecutor "is charged with the duty not only to seek convictions but also to see
that justice is done," including in the grand jury). This duty "of fair dealing extends not only to
the submission of evidence, but also to instructions on the law .... " Lancaster, 69 N.Y.2d at
26. Thus, when the prosecutor "instruct[ s] the jury with respect to the significance, legal effect
or evaluation of evidence," CPL § 190.30(7), he must be guided by his duty of fair dealing to the
accused. When he fails in this duty and his instructions are so "deficient as to impair the
integrity of the Grand Jury's deliberations," the resulting indictment must be dismissed. People
v. Cannon, 210 A.D.2d 764, 766 (3d Dep't 1994).
In this matter, this duty of fair dealing required the prosecutor to instruct the grand jury
fairly on the differing accounting standards and law that determine whether the allegedly
"fraudulent account methods" underlying every charge in the indictment were indeed fraudulent
or whether they were permissible. lfthe grand jury had been properly instructed on these
standards, it would have concluded that the accounting methods were permissible, and this
"needless [and] unfounded prosecution" would have been avoided. Lancaster, 69 N.Y.2d at 27;
see also People v. Darrisaw, 206 A.D.2d 661, 663 (3d Dep't 1994) ("To be sure, as an officer of
the court the prosecutor has a duty to make a fair presentation to the Grand Jury, and to present
22
all evidence that could, if believed, avoid a needless or unfounded prosecution."). At a
minimum, the grand jury should have been instructed on the following legal standards regarding
the following accounting issues. The defendants offer the following examples:8
1. "Backdated" Checks
The indictment alleges that Messrs. Davis, DiCarmine, Sanders, and Wan-en "sought
backdated checks from clients to post to the prior year." (Indictment p. 5 ~ (1)). An instruction to
the grand jury that the posting in D&L's books of checks bearing December dates, received in
January, to the prior year's revenues is per se fraudulent would be a gross misstatement of the
law. The grand jury should have been instructed that the Treasury Regulations applicable to
accounts prepared on an income tax basis, as we understand D&L was, not only allow, but
generally require any items constituting gross income to be included in the taxable year in which
they were "actually or constructively received." 26 C.F.R. § 1.446-1 (c) (i) (emphasis added).
The regulations further provide that:
[i]ncome although not actually reduced to a taxpayer's possession is constructively received by him in the taxable year during which it is credited to his account, set apart for him, or otherwise made available so that he may draw upon it at any time, or so that he could have drawn upon it during the taxable year if notice of intention to withdraw had been given.
C.F .R. § 1.451-2( a). Thus, where income is "made subject to the will and control of the
taxpayer and can be, except for his own action or inaction, reduced to actual possession," it is
deemed constructively received for income tax purposes, and thus must be included in income in
the year in which it is constructively received. Loose v. United States, 74 F.2d 147, 150 (8th Cir.
1934).
8 While only some of the allegedly fraudulent accounting methods are addressed in this motion, the defendants do not concede that the remainder are unlawful; indeed, we expect the evidence at trial to show that to the extent they were aware of the accounting methods at issue, the defendants all believed the methods were appropriately used.
23
This IRS approach extends to situations in which a check was sent by mail but could have
been picked up in person. See Kunze v. C.IR., 19 T.C. 29, 30 (1952) (finding that a "dividend
declared and made payable in 1946 but received through the mails in 1947 was 'constructively
received' by petitioner in 1946 so as to be includible in his gross income for the earlier year"),
aff'd, 203 F.2d 957 (2d Cir. 1953). The grand jury should have been instructed that December
dated checks could under some circumstances appropriately be counted in December income
even when they had been received in January.
The grand jury should also have been instructed that under New York's Uniform
Commercial Code ("NYUCC"), checks may be appropriately antedated or postdated without
affecting their negotiability. NYUCC § 3-114. The NYUCC expressly provides that "[w]here
an instrument is antedated or postdated[,] the time when it is payable is determined by the stated
date if the instrument is payable on demand or at a fixed period after date." NYUCC § 3-114(2);
see also Uniform Commercial Code § 3-114(a) ("An instrument may be antedated or
postdated."). In other words, even if the grand jury concluded that clients were asked in January
to issue checks with December dates, New York's commercial code expressly permitted those
clients to do so, and, by so doing, to acknowledge that the check was payable as of the date of
the instrument. The grand jury should have been instructed on these rules. Had it been properly
instructed, the grand jury would have concluded that by antedating checks, as New York law
allows them to do, clients were in essence providing that the income was available to the firm
and thus "constructively received" by it as of the date of the check. The prosecutor's failure to
give correct and complete instructions on this matter should, at minimum, result in the dismissal
of Count One.
24
2. Reversing Disbursement Write-Offs
The indictment alleges that Messrs. Davis, DiCarmine and Sanders "improperly reversed
millions of dollars of write-offs of client disbursements that the Firm had no intention or
reasonable expectation of collecting." (Indictment p. 4 ~~ (a) and (d)). Particularly since the
accusation's concept of allegedly improper write-offs are such a significant part ofthe
indictment, fairness to the defendants required that the instructions to the grand jury on this
topic, like those regarding antedated checks, include instructions that there may be circumstances
under which reversal of write-offs is appropriate.
The IRS has determined that where a firm "decides, for valid business reasons, not to bill
a client for an out-of-pocket expense, [the firm] will be entitled to a deduction [i.e., a write-off
for financial statements prepared on the income tax basis of accounting] for the expense . .. for
the year in which it makes the final determination not to bill the client." I.R.S. TAM 9432002
(Aug. 12, 1994) (emphasis added). Moreover, even where a disbursement has been written off
and the associated "debt" treated as wOlihless,9 if it is subsequently recovered, it must be
included in gross income for the year it was collected. 26 C.F.R. § 1.166(f). The grand jury thus
should have been instructed that reversing a write-off is permissible under the Treasury
Regulations, and that simply because the firm may have done so is not itself evidence of a crime.
Complete and accurate instructions on the governing IRS regulations, generally accepted
accounting practices and law governing what a law firm could legitimately do, and even what
could be a gray area, was particularly important in this case because none of these defendants
was an accountant, much less a CPA. As such, these three had a complete right to rely on the
accounting advice received from Frank Canellas, the chief accountant at the firm during most of
9 For income tax purposes, amounts advanced on behalf of a client by a law firm are treated as loans. Canelo v. C. 1 R., 447 F.2d 484,485 (9th Cir. 1971).
25
the period in question. In this setting, if the prosecutors neglected to instruct the grand jury on
the appropriate accounting rules, accepted practices and goveming law, the presentation was
legally defective and the Court should dismiss the indictment. 10
3. Knowledge And Intent
Because this indictment is based on complex and nuanced accounting rules, regulations
and standards, it should be dismissed if the prosecutors neglected to instruct the jurors that these
non-accountant defendants had a right to rely on the accounting advice given them by the firm's
professional accounting staff. For the same reason, the COUli should dismiss the indictment if
the prosecutors did not instruct the grand jury correctly and fully on the knowledge and intent
requirements set forth in the Penal Law and their application to the accounting rules, regulations
and standards that govem law firm accounting for the areas in which the prosecution has accused
the defendants of criminal wrongdoing. PL §§ 15.05,15.15 & 15.20.
"The prosecutor's wide exercise of discretion in presenting evidence to the grand jury,
which may include the decision not to present exculpatory material, must be balanced by the
grand jury's right to hear the 'full story so that it [can] make an independent decision that
probable cause [exists] to suppOli an indictment.'" People v. Townsend, 127 A.D.2d 505,506
(lst Dep't 1987) (citing People v. Isla, 96 A.D.2d 789, 790 (1st Dep't 1983)) (alterations in
original). If the grand jury did not receive the accounting instructions detailed above, it was
prevented from making an independent and informed detelmination, and Messrs. Davis,
DiCarmine, and Sanders were deprived of their right to have the case fairly presented to the
grand jury. Without proper instruction as to the lawful uses of these accounting treatments, there
10 We respectfully urge that, given their complexity, release ofthe grand jury minutes pursuant to CPL § 210.30(3) is particularly appropriate as to any accounting instructions. Messrs. Davis, DiCarmine, and Sanders should have the 0ppOliunity to inspect these minutes in order to aid the court in understanding whether the accounting instructions were sufficient.
26
can be no conclusion other than that the "instructions were so deficient as to impair the integrity
of the Grand Jury's deliberations." People v. Wade, 260 AD.2d 946,947 (3d Dep't 1999)
(internal quotation marks omitted). This deficiency, moreover, is fatal not just to one count of
the indictment, but all of them. Each count - scheme to defraud, conspiracy, grand larceny,
falsifying business records, and securities fraud under the Martin Act - depend on the notion that
Dewey's financial records were fraudulent as a result of these and other accounting methods. If,
as was likely, insufficient and inaccurate accounting instructions impaired the integrity of the
deliberations, then each count of the indictment must be dismissed.
B. The Use of Purported Co-Conspirators' Statements in The Grand JUry
A declaration by a co-conspirator made during the course of and in furtherance of a
conspiracy is admissible against another co-conspirator. However, this evidence may be
admitted against the second purported co-conspirator only upon a showing that a prima facie
case of conspiracy has been established without recourse to the declaration sought to be
admitted. People v. Caban,S N.y'3d 143, 148 (2005); People v. Bac Tran, 80 N.Y.2d 170, 179
(1992); People v. Safko, 47 N.Y.2d 230,237, rearg. denied, 47 N.Y.2d 1010 (1979). A prima
facie case of conspiracy in the fifth degree requires evidence that a person, with intent that
conduct constituting a crime be performed, agrees with one or more persons to engage in or
cause the performance of such conduct. PL § 105.00(1). These rules apply to grand jury
proceedings. People v. Cartwright, 293 AD.2d 882 (3d Dep't 2002); People v. 0 'Neill, 285
A.D.2d 669 (3d Dep't 2001); People v. Diaz, 209 AD.2d 1 (1st Dep't 1995); People v. Green,
188 AD.2d 662 (2d Dep't 1993).11
II Similarly, the Court should review the minutes to ensure that any accomplice testimony before the grand jury was sufficiently corroborated to be admissible against each defendant. See CPL §§ 60.22; 190.65(1).
27
This indictment contains a conspiracy count. Most of, if not all of the other counts of the
indictment, also must be based on a conspiracy theory ofliability. For example, according to the
allocutions of some former employees who have pleaded guilty, these defendants did not
physically make the entries deemed false in the business record counts. The COUli should
inspect the grand jury minutes to determine whether, with respect to each count of the indictment
and with respect to each defendant separately, a prima facie case of conspiracy existed without
recourse to statements made by any co-conspirator, and dismiss any count against any defendant
where that standard was not met.
In addition, the Court should inspect the legal instructions to the grand jury to determine
whether the prosecutors properly instructed the grand juries with respect to the rules governing
the use of co-conspirator statements, and to dismiss the indictment·ifthe prosecutors did not
adequately instruct the grand jury.
POINT III
THE COURT SHOULD STRIKE FROM THE INDICTMENT ANY "SPEAKING" PORTION OF THE INDICTMENT NOT EXPRESSL Y VOTED BY THE GRAND JURY AND ALSO
ALL INFLAMMATORY, PREJUDICIAL LANGUAGE
Professor Preiser teaches that a basic function of an indictment is to evidence the fact that
a grand jury has voted to charge a defendant with a particular crime and to ensure that the charge
for which the defendant will be tried is the charge voted by the grand jury. Preiser, Practice
Commentary, CPL § 200.10, McKinney's Consl. Laws, Book l1A, p. 213 (2007). Pages two
through eight of this indictment (the "Prologue"), however, serve far different improper and
pernicious purposes. 12 Indeed, this screed is a combination of a prosecutor's press release,
opening statement and summation. It has no place in an indictment under any circumstances. It
12 The indictment is not paginated. These pages are annexed as Appendix A.
28
celiainly has no place in an indictment if, as the defendants suspect, the grand jury did not
expressly find the "facts" asserted in it and also vote to include the prosecutors' language in the
indictment.
A. The Court Should Strike Language of a "Speaking" Indictment If The Grand Jury Did Note Vote to (1) To Approve the "Speaking" Language and (2) to Include It In the Indictment
The New York State Constitution provides that, "No person shall be held to answer for a
capital or otherwise infamous crime ... , unless on indictment of a grand jury .... " N.Y. Const.
Ali. I, § 6. If the grand jury did not vote to find the "facts" set forth in the Prologue, and did not
also vote to include the Prologue's language in the indictment, the COUli should strike the
Prologue. Permitting this scurrilous material to remain in the indictment would violate the
defendants' constitutional right to be charged and tried on an indictment voted by a grandjury.
The Criminal Procedure Law provides that an indictment must contain "[a] plain and
concise factual statement in each count which, without allegations of an evidentiary nature, (a)
asserts facts suppOliing every element of the offense charged and the defendant's or defendants'
commission thereof with sufficient precision to clearly apprise the defendant or defendants of the
conduct which is the subject of the accusation, .... " CPL § 200.50 (7)(a). Typically, the District
Attorney drafts a "bare bones" indictment that encompasses each charge voted by the grand jury,
just as the District Attorney did in the business records counts of this indictment. While the
District Attorney has the authority to draft on behalf of the grand jury an instrument that sets
forth "a plain and concise factual statement," he does not have the authority to argue his case in
the indictment by including "facts" not expressly found by the grand jury and language not
29
approved by the grand jury. 13 The Court should examine the minutes to determine whether the
grand jury expressly found the purported facts asselied in the Prologue and expressly voted to
include the Prologue's language in the indictment, and if the grand jury did not take those steps,
strike the Prologue from the indictment.
B. The Court Should Strike Language That Is On Its Face Inflammatory, Prejudicial and Prohibited
This Prologue was drafted to be a weapon to supplement the District Attorney's press
release, and it will be used again as a weapon at trial. But its language is outrageously
prejudicial and inflammatory and should be stricken. For example, the Prologue argues that:
"The Firm declared bankruptcy; thousands lost their jobs; and the Firm's creditors were left
owed hundreds of millions of dollars." These allegations are a blatant attempt to inflame the jury
and prejudice it against these defendants. 14 The defendants are accused of grand larceny,
falsifying business records and schemes to defraud - not causing a bankruptcy, causing
thousands to lose their jobs, and stiffing creditors of hundreds of millions of dollars via a
bankruptcy they did not cause.
Perhaps the piece de resistance is the indictment's argument that the defendants "lied to
and otherwise misled the Firm's pminers and auditors as well as others." It is well established
I3 This argument applies to the entire Prologue, but for purposes of illustration, the Court should determine whether the grand jUly actually found that Davis, DiCarmine and Sanders: "controlled the operations of the firm"; "also tightly controlled information concerning the firm's financial condition"; "were aware that the failure to meet the Cash Flow Covenant during the 2008 credit crisis could have disastrous effects on the Firm"; and "[t]he Firm could no longer pay partners enough to prevent their departure, and the Schemers could no longer fool the Firm's lenders, investors, and others. The Firm declared bankruptcy; thousands lost their jobs; and the Firm's creditors were left owed hundreds of millions of dollars."
14 These assertions are particularly offensive because there is a velY good argument that the publicity surrounding the commencement of the District Attorney Office's investigation derailed an almost consummated merger with another law firm, and resulted in the termination of D&L' s negotiations concerning a new credit facility, and caused D&L to declare bankruptcy; which caused thousands to lose their jobs; and caused D&L's creditors to be "owed hundreds of millions of dollars."
30
that a "prosecutor exceeds the bounds of legitimate advocacy by resorting to name calling, such
as characterizing the defendant as a liar." People v. Collins, 12 A.D.3d 33,37 (1st Dep't 2004)
(citations omitted); People v. Kim, 209 A.D.2d 167, 167 (1st Dep't 1994) ("Defendant was
deprived of a fair trial as a result of the prosecutor's repeated, improper attempts during cross-
examination and summation to characterize him as a liar .... "); People v. Tolbert, 198 A.D.2d
132, 133 (1st Dep't 1993) (prosecutor's summation was improper where he characterized the
defendant's alibi defense as a "concoction of lies and falsehoods" and repeatedly asserted that
the defense witnesses were liars). 15
The insidiousness of including this language in the indictment and the impropriety of
permitting it to remain there is all the more glaring because the courts typically read the
indictment to the jury during preliminary instructions and often read the indictment again during
instructions at the end of the trial. Some judges permit the jury to take the indictment into the
jury room during deliberations. If it is improper, and cause for a new trial, for a prosecutor to
call the defendant a "liar" in summation, language in an indictment asserting that the defendants
"lied" is at least as prejudicial, especially since the judge will deliver that language when he
reads the indictment to the jury. Moreover, the contents of this diatribe are such that even
repeated instructions that "the indictment is just a charge and proof of nothing" will no more
cause the jury to ignore these allegations than would telling a jury to ignore a pink elephant
wearing a tutu that just walked across the well of the courtroom. Permitting the trial jury to be
polluted by this prejudicial and inflammatory language would violate the defendants' right to due
process.
15 The unfounded allegation that these defendants "lied to" or misled D&L's partners has nothing to do with the crimes charged in the indictment, making this reference not only inflammatory but improper.
31
POINT IV
THE COURT SHOULD DISMISS COUNT ONE BECAUSE IT IS MULTIPLICITOUS
The indictment alleges that in April 2010, D&L refinanced its debt with the private
placement of securities with 13 bondholders (insurance companies). This private placement
fOlIDS the basis for part of the Penal Law Scheme to Defraud charged in Count One of the
indictment. Count One Hundred Five accuses defendants Davis, DiCarmine and Sanders of
violating the Scheme to Defraud prohibited by General Business Law §352(c)(5) ("Martin Act").
Although the indictment does not in haec verba allege that this charge is based on the same
conduct as that alleged in Count One, merely looking at the indictment and examining the grand
jury minutes will demonstrate that it is.
The Court of Appeals sternly warned prosecutors and grand juries not to engage in the
"evil" of "multiplicity." People v. Alonzo, 16 N.Y.3d 267, 269 (2011). The COUli explained that
"[i]f an indictment is multiplicitous it creates the risk that a defendant will be punished for, or
stigmatized with a conviction of, more crimes than he actually committed." People v. Alonzo,
supra. "An indictment is multiplicitous when two or more counts charge the same crime"
People v. Smalls, 81 A.D.3d 860,861 (2d Dep't 2011), quoting People v. Aarons, 296 A.D.2d
508 (2d Dep't 2002); see People v. Quinones, 8 A.D.3d 589 (2004). Thus, the indictment
violates the prohibition against multiplicity.
This multiplicity leaves the defendants subject to several pernicious results. First, a jury
could convict them under Count One of engaging in a scheme to defraud with respect to the
private placement and also convict them of the same conduct as a violation of the Maliin Act
under Court One Hundred Five, which at its core charges the same conduct. Consequently, these
defendants face precisely "the risk that [they] will be punished for, or stigmatized with a
32
conviction of, more crimes than [they] actually committed" that the COUli of Appeals cautioned
against. People v. Alonzo, 16 N.Y.2d at 269. Second, the jUly could find the defendants not
guilty of Count One - which includes the private placement - thereby demonstrating that alleged
"private placement scheme" was not proven beyond a reasonable doubt, but guilty of the same
conduct under the alleged Martin Act violation charged in Court 105. That result would be an
inconsistent verdict.
POINT V
THE COURT SHOULD REVIEW THE GRAND JURY MINUTES AND DISMISS THE INDICTMENT IF THE DISTRICT ATTORNEY
DID NOT GIVE ALL LEGALLY REQUIRED INSTRUCTIONS, GAVE INCORRECT OR INCOMPLETE LEGAL INSTRUCTIONS WITH RESPECT TO THE GRAND JURY'S OPERATIONS, OR IF
THE GRAND JURY'S FORMATION AND PROCEEDINGS DID NOT COMPORT WITH LAW
A. The Court Should Dismiss the Indictment If the Law Regulating Which Grand Jurors Were Permitted To Vote Was Not Followed
The Court should review the grand jury records to determine whether at least twelve
members of the grand jury who voted to indict each defendant with respect to each count were
present for all of the essential and critical evidence. If that standard was not met, the Court
should dismiss the indictment. People v. Brinkman, 309 N.Y. 974, 975-976, (1956); People v.
Saperstein, 2 N.Y.2d 210 (1957); People v. Collier, 72 N.Y.2d 298, 299 (1988); People v.
Osborne, 165 Misc.2d 900 (Sup. Ct. Kings Cnty. 1995); Preiser, Practice Commentaries,
McKinney's Cons. Laws ofN.Y., Book l1A, CPL § 210.35 at 676 (2007). The Court also
should examine the grand jury minutes to determine whether the prosecutor properly instructed
the grand jury that only those jurors who have heard all of the essential and critical evidence
could vote. If the prosecutor did not give that instruction, the COUli should dismiss the
indictment.
33
In addition, the Court should compare the dates the prosecutor suggested to the jurors
were the dates on which essential and critical evidence was heard to the record. If the Court
determines that the prosecutor omitted a date on which essential and critical evidence was
presented, the Court should dismiss the indictment. Moreover, the Court should inspect the
grand jury records to ensure that at least 12 jurors who in fact heard all of the essential and
critical evidence actually voted to return each count of the indictment against each defendant.
See generally People v. Eun Sil Jang, 17 A.D.3d 693 (2d Dep't 2005); People v. Perry, 199
A.D.2d 889, 891 (3d Dep't 1993); People v. Harris, 181 Misc.2d 670,680 (Sup. Ct. Bronx Cnty.
1999).
In addition, the Court also should determine whether the grand jurors were instructed that
only those jurors who had heard all of the essential and critical evidence could patiicipate in
deliberations and whether any grand juror who was not present when essential and critical
evidence came before the grand jury participated in the deliberations. If these instructions were
not given, or if any juror who had not heard all of the essential and critical evidence patiicipated
in the deliberations, the Court should dismiss the indictment. As one Judge of the Court of
Appeals explained:
Such patiicipation could, however, lead to undesirable consequences. Jurors who have not heard all of the evidence could well have a substantial influence on the decision to indict. ... (footnote omitted). At the very least, the result would be uninformed decision-making. Of even greater concern is the potential for manipulation. In the worst possible scenario, a "flying squad" of four especially persuasive grand jurors who heard only the most damaging evidence could influence the 12 jurors who, after having heard all of the evidence, would not have returned an indictment but for the influence of those four.
34
People v. Collier, s'upra 72 N.Y.2d at 305 (Titone, J., conculTing);16 but see, People v. Perry,
supra, 199 A.D.2d at 892.
B. The Court Should Dismiss the Indictment If the Grand Jury That Voted To Return It Was Not Legally In Existence
The defendants do not know if the grand jury that voted this indictment completed all of
its work within the initial term for which it was empanelled or whether its existence was
extended. If, as seems likely, this grand jury voted this indictment during some extension of its
original term of existence, the Court should examine the records relating to any such extensions
to ensure compliance with the provisions of CPL § 190.15(1). In particular, the Court should
examine whether:
a. within five days of the expiration of any term in which the grand jury was lawfully in existence, the grand jury itself voted to ask the Court to extend its term to a specified date, and whether any such vote was to extend with respect to the investigation that resulted in this indictment;
b. within five days of the expiration of any term in which the grand jury was lawfully in existence, the grand jury and the district attorney both declared to the Court that the grand jury had not yet completed or would be unable to complete certain business before it, and therefore asked the Court to extend the term of the court and the existence of the grand jury to the specified date voted by the grand jury; and
c. the Court issued and entered an order accomplishing the extension.
The Court should dismiss this indictment if those steps were not taken.
16 The majority expressly did not reach the issue. People v. Collier, supra at 72 N.Y.2d at 306, n.2.
35
POINT VI
THE COURT SHOULD DIRECT THE PEOPLE TO PROVIDE THE DISCOVERY AS WELL AS THE BILL OF
PARTICULARS REQUESTED BY THESE DEFENDANTS
The defendants have made a number of reasonable and necessary requests for discovery,
in accordance with CPL Aliicle 240 and the due process guarantees of both the New York State
and United States Constitutions, which the District Attorney has almost entirely rebuffed.
Because the prosecutor has failed to take seriously the prosecution's constitutional and statutory
disclosure obligations, the Comi must ensure that those obligations are met and the defendants
receive a fair trial. CPL §240.40(1)(a) (the Court "must order discovery as to any material not
disclosed upon a demand pursuant to section 240.20, ifit finds that the prosecutor's refusal to
disclose such material is not justified,,).l7
The defendants' first and perhaps most critical request was a letter dated March 24,2014,
in which counsel sent to the District Attorney on behalf of defendants Davis, Sanders and
DiCarmine detailed Brady/Giglio requests. Appendix B. Those requests addressed a number of
specific issues under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, most of which
centered on the prosecution's cooperating witnesses. The cooperators' testimony will be a
central pmi of the defendants' trial and the defendants made these tailored requests to resolve
any Brady disputes in a timely manner, consistent with the constitutional imperative that Brady
material be provided in sufficient time to permit the defendants to make effective use of the
information at trial. See, e.g., Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
17 The Court has a similar obligation to order the District Attorney to supply an adequate Bill of Particulars (CPL § 200.95(5)), and also "may order discovelY with respect to any other property, which the people intend to introduce at trial" upon the appropriate showing by the defendants. CPL §240AO(l)( c).
36
Defendants' Brady letter emphasized that "only by knowing whether we disagree over
the scope of disclosure" can the defendants seek a timely ruling from the Court, if necessary, "as
to the parties' ethical, legal and constitutional obligations." Appendix B. The defendants
reasonably requested that the District Attorney provide a response specific enough to reveal
whether in fact there exists a dispute over the government's Brady obligations. The defendants
specifically asked that the District Attorney not simply provide a boilerplate response that "the
prosecution is aware of its duties and will act accordingly," because such a response tends to
obfuscate rather than help resolve this important constitutional issue. Id. Unfortunately, that is
precisely what the prosecutor did, dismissing the defendants' Brady letter with a one-sentence
reply. The District Attorney's response leaves the defendants in the untenable position of not
knowing whether the District Attorney is telling them that he has the Brady material they seek
but refuses to turn it over because he improperly refuses to acknowledge that it is Brady material,
that he has the Brady material but refuses (for unidentified reasons) to turn it over at this time, or
that he does not have the material.
The District Attorney's refusal to respond to the defendants' requests is unreasonable and
shows that the prosecution is not taking its Brady obligations seriously. As the Supreme Court
held in United States v. Agurs, 427 U.S. 97, 106 (1976), "[w]hen the prosecutor receives a
specific and relevant [Brady] request, the failure to make any response is seldom, if ever,
excusable." Given the impOliance of the cooperators in this case - and, equally, the impOliance
of Brady information concerning those cooperators -the Court should not permit the District
37
Attorney to brush aside the defendants' specific Brady requests with an intentionally
uninformative response. 18
It is well within the COUli's authority to ensure that the District Attorney is properly
complying with its Brady obligations pretrial. While the prosecution possesses a crucial
constitutional duty to ensure that Brady information is timely disclosed, its "discretion is not
unlimited, and the courts have the obligation to assure that it is exercised in a manner consistent
with the right of the accused to a fair trial." Boyd v. United States, 908 A.2d 39, 59 (D.C. 2006).
The Court's involvement is essential because the very purpose of Brady is "to ensure that a
miscarriage of justice does not occur" in the first place. Bagley, 473 U.S. at 675 (emphasis
added).
Section 240.20 requires the prosecutor to produce, among other material, "(h) Anything
required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the
constitution or this state or of the United States." That means Brady material. The defendants
made a request for that material. Appendix B. CPL § 240.40(1)(a) requires the COUli to "order
discovery as to any material not disclosed upon a demand pursuant to section 240.20, ifit finds
that the prosecutor's refusal to disclose such material is not justified". Other than to gain a
tactical advantage by impeding the defendants' trial preparation and therefore their ability to
defend at trial, there can be no justifiable reason for not turning over Brady material now.
At minimum, to the extent the District Attorney refuses presently to tum over to the
defense all of the Brady material requested in the defendants' March 24th letter, to enable the
Court to determine the propriety of that refusal, the District Attorney should be directed to (1)
18 Such a response is also counterproductive because, as the Supreme Court explained in United States v. Bagley, 473 U.S. 667, 682-83 (1985), "the more specifically the defense requests certain evidence ... the more reasonable it is for the defense to assume from the nondisclosure that the evidence does not exist" and comis will properly consider "any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defendant's case."
38
inform the Court and the defense promptly whether it possesses any of the information described
in the defendants' Brady letter, (2) whether it disputes the defendants' entitlement to that
information, and (3) if it intends to disclose the information, when it will do so. Only then can
the parties address any disputes over the scope of the District Attorney's disclosure obligations
and present to the Court their arguments as to whether the District Attorney's proposed timing
for making Brady disclosures is proper. Accordingly, the defendants respectfully request that the
Court enter an order directing the District Attorney to provide the three categories of information
described above as soon as possible.
In addition to the Brady letter, the defendants made three additional written requests for
discovery. On April 29, 2014, counsel sent to the District Attorney on behalf of defendants
Davis, Sanders and DiCarmine a formal Demand for Discovery. Appendix C. On May 28,2014,
counsel sent to the District Attorney by email on behalf of defendants Davis, Sanders and
DiCarmine a Request for a Bill of Particulars. Appendix D. Finally, also on May 28, 2014,
counsel sent to the District Attorney a letter that completed these defendants' requests for
"voluntary" discovery from the District Attorney. Appendix E.
The District Attorney rejected all ofthe defendants' discovery requests. 19 Annexed
hereto as Appendix F is a chart that tracks eafh of the defendants' discovery requests and the
District Attorney's corresponding answer (or lack thereot). In virtually every instance, the
District Attorney simply wrote that the defendants had received all the information to which they
19 In fact, the only piece of information the District Attomey deigned to convey was the beginning of a response to Paragraph 2 ofthe defendants' Request for a Bill of Particulars, which asked "whether the People intend to prove that [each] particular Defendant acted as a principal, accomplice or both." The District Attomey said "both," but then ignored the portions of this request that could have provided information lacking from the Indictment - "[i]f charged as a principal ... how, and by whom, each Defendant was allegedly aided and abetted," and "[i]f charged as an accomplice ... whom each Defendant allegedly aided and abetted, and how." The District Attomey did not even bother responding to those requests.
39
are entitled, that the defendants are not entitled to the information sought or that the defendants
are not entitled to such information "at this time." The COUli should reject these boilerplate
assertions and direct the District Attorney to respond to the defendants' detailed and specific
requests - or, at a minimum, state what materials it is withholding and provide its reasons for
contending that the defendants are not entitled to the materials so the defendants can respond and
the COUli has a basis on which to rule.
For example, in defendants' discovery demand letter, dated May 28,2014, defendants
requested:
[A]ll materials concerning any compensation (regardless of source) that was received by Francis Canellas, Jyhjing Harrington, Ilya Alter, Lourdes Rodriguez, David Rodriguez, Dianne Cascino or Thomas Mullikin during the period that each of them was employed by Dewey & LeBoeuf or as a result oftheir employment at Dewey & LeBoeuf.
If the District Attorney is aware of evidence that any of the cooperators received money
that was not W-2 compensation from D&L - as suggested by the carefully crafted pleas
allocutions, only some of which state that the patiicular cooperator did not receive compensation
other than what was disclosed in their W-2 -- that may well be Brady materia1.2o The District
Attorney's response to that request, however, was: "[t]o the extent responsive materials exist
and have not otherwise been produced, the defendants are not entitled to them at this time." That
response is plainly inadequate.
Additionally, the District Attorney has stated that his Office "complied with our
obligations under CPL § 240.20(1)(a)-(i)", he has not. CPL § 240.20(1) requires the District
Attorney to provide celiain materials "upon a request" by a defendant - a request the
defendants made months ago. Yet the District Attorney has not provided a variety of materials
20 See, e.g., Allocution of Dianne Cascino at 3 ("I did not receive any compensation from Dewey & LeBoeuf or anyone at Dewey & LeBoeuf other than what was reflected on my W2s.").
40
that the VDF represents are in the District Attorney's possession, including: (1) statements made
by the defendants or co-defendant Zachary Warren, other than those referenced in section "B(1)"
of the VDF (which were the only materials provided) (VDF at C(1)); (2) photographs or
drawings by law enforcement personnel or trial witnesses (VDF at C(4)); (3) tapes or recordings
the District Attorney intends to use at trial (VDF at C(7)); and (4) "other property" obtained from
the defendants or Mr. WalTen (VDF at C(6)). Given the defendants' requests for this material,
the District Attorney's refusal to provide it is improper and threatens to undermine the
defendants' ability to prepare for trial.
The majority of the VDF - a list of the 88 falsifying business records counts in the
indictment - likewise fails to provide any "disclosure" at all. The appended material consists
largely of "screenshots" (static images of a computer screen) ofD&L's accounting computer
program, to which the District Attorney was provided access by the D&L bankruptcy trustee.
Appendix G. Much of this material is indecipherable and of no use to the defense in the absence
of equivalent access to D&L's accounting system. For months, the District Attorney's Office
has repeatedly assured the defendants that it would alTange for the defendants (and their
attorneys and experts) to be given the same access to the D&L accounting system that the
District Attorney has. Only on the eve of the filing of this motion, on July 8, 2014, the District
Attorney's Office provided us with a draft protective order concerning D&L's accounting
system. The District Attorney's Office's delay - whether intentional or not - has frustrated the
defendants' ability to prepare for trial- a trial that will focus heavily on D&L's accounting
practices.
The District Attorney's blanket refusal to supply a bill ofpatiiculars is equally improper.
Rather than provide any of the particulars of the offenses alleged, the District Attorney posits
41
that all of the required information is contained in the (1) indictment, (2) VDF, (3) cooperators'
allocutions, (4) "Statement of Facts," and (5) falsifying business records "disclosures."
Appendix H. Otherwise, the District Attorney asselis, the defendants' requests seek "evidentiary
detail" rather than the substance of the charges. Id. To the contrary, the defendants' request for
a bill ofpatiiculars does not once ask the District Attorney to identify the evidence. Rather, it
properly asks the District Attorney to specify the nature of the more than 100 charges set forth in
the indictment. Appendix D. The five items to which the District Attorney points are do not
supply that information and are no substitute for a bill of particulars.
For example, as discussed above, the falsifying business records "disclosures" consist
largely of a series of "screenshots" from the D&L accounting system to which the District
Attorney has promised to secure the defendants' access, but failed to do so. Without that access,
the "screenshots" are oflittle use. Nor do the cooperators' allocutions provide any information
about the nature of the charges against the defendants - in fact, they contain the very sort of
"evidentiary" information that the District Attorney insists a bill of patiiculars is not meant to
provide.21 The VDF contains statutory notices and a summary of the materials being provided to
the defense - it does not amplify the pleading. The only document that helps clarify the nature
of the charges here is the District Attorney's "Statement of Facts" - which, while relevant, does
not provide the particulars sought in the defendants' detailed and specific request. A review of
the bill of particulars request reveals that the defendants have asked the District Attorney to
identify the particular factual allegations (and not the evidence that will be used to prove them)
that form the elements of each offense charged.
21. The District Attorney's reliance on the cooperators' allocutions rings pmticularly hollow in light of his recently filed sur-reply opposing Mr. Warren's severance motion. In that document, the District Attorney minimized the cooperators' allocutions as "very limited statements," emphasizing that they related to the pleas of the cooperators themselves and, accordingly, "any pmt of them that inculpates [these defendants] is merely incidental." Appendix 1.
42
The District Attorney's refusal to provide any ofthat information is unjustified and
contrary to law, and the items to which he refers in his response do not contain the necessary
information. That information is critical to the defendants' ability to prepare for trial.
Accordingly, the District Attorney should be directed to provide the requested bill of particulars.
The District Attorney has also refused to provide privilege logs or any other information
concerning assertions of privilege by the D&L bankruptcy trustee and other non-parties.
Appendix H. That refusal is especially significant because the prosecution has stated to the court
their belief that certain materials produced by D&L's outside auditors in the course of the
District Attorney's investigation, are somehow covered by a work product privilege - even
though no such privilege could possibly exist between the District Attorney's Office and E&Y.
Moreover, a non-party's assertion of privilege does not negate the prosecution's constitutional
and statutory disclosure obligations - including the duty to disclose any Brady material the
prosecution may have received, regardless of whether the non-party later sought to claw that
material back.
We understood from our prior discussions with the prosecution, as well as the statements
made to the court, that the District Attorney's Office had provided defendants with all of the
materials in its possession from D&L, its banks and the private placement bondholders, with the
exception of privileged materials and several discrete categories of materials that are not relevant
to this investigation. However, on July 8, 2014, defendants received a supplemental production
letter indicating that defendants would be receiving an additional production of material from
D&L, J.P. Morgan and Citibank. The existence of that forthcoming supplemental production
from D&L and two of its banks demonstrates that the prior productions were deficient.
43
CONCLUSION
For all of the foregoing reasons, the defendants respectfully submit that the Comi should
dismiss the indictment in its entirety, direct the District Attorney to comply with the defendants'
discovery demands and request for a bill of patiiculars, and grant the alternative relief requested
herein together with any further relief the Court deems just and proper.
Dated: July 11,2014 New York, New York
44
MORVILLO ABRAMOWITZ GRAND lAS ON & ANELLO P.C. By: Elkan Abramowitz 565 Fifth Avenue New York, New York 10017 Tel: 212-880-9600 Fax: 212-856-9494
By: ~~ ________________ ___ Austin V. Campriello
BRY AN CAVE LLP 1290 Avenue of the Americas New York, New York 10104 Tel: 212-541-2000 Fax: 212-541-4630
Attorneys for Defendant Stephen DiCarmine
HUGHES HUBBARD & REED LLP By: Edward J. M. Little One Battery Park Plaza New York, NY 10004-1482 Tel: (212) 837-6000 Fax: (212) 422-4726
Counsel for Defendant Joel J Sanders
Of Counsel:
MORVILLO ABRAMOWITZ GRAND IASON & ANELLO P.c. Lawrence S. Bader, Esq. Rachel Y. Hemani, Esq. Dana M. Delger, Esq.
BRYAN CAVE LLP Mary Beth Buchanan, Esq. Kathryn E. Gebert, Esq. Anne Redcross, Esq.
HUGHES HUBBARD & REED LLP Marc Weinstein, Esq. David Shanies, Esq.
45
APPENDIX A
Background
Dewey & LeBoeufLLP (the "Firm") was an international law firm headquartered in
New York County. It was formed on or about October 1,2007, through the combination of two
existing law firms, Dewey Ballantine LLP and LeBoeuf, Lamb, Greene & MacRae LLP. At its
height, approximately 1,300 partners and employees worked in the Firm's Manhattan office and
approximately 3,000 partners and employees worked for the Firm worldwide. The partners at
the Firm were primarily equity partners, with a few non-equity partners. The Firm also
employed salaried lawyers who were deemed to be "Of Counsel." In 2012, the Firm collapsed
and declared bankruptcy.
During the period of the scheme, defendant DAVIS was the Firm's Chairman, and later,
member of the Office of the Chair; defendant SANDERS was the Firm's Chief Financial
Officer; defendant DICARMINE was the Firm's Executive Director. Defendant WARREN was
the Firm's Client Relations Manager in 2008 and 2009, when he left the Firm.
Defendants DAVIS, DICARMINE, and SANDERS were in regular communication and
controlled the operations of the Firm. They also tightly controlled information concerning the
firm's financial condition.
The Scheme
The Firm's first full year of operations was 2008. The merger, coming just before the
financial crisis, was troubled from the start and the Firm's first year financial performance was
severely below expectations. By the end of that year, the Firm had more than $100 million in
term debt outstanding and available lines of credit of more than $130 million with four banks
(the "Banks"). The Firm's credit agreements with the Banks contained several covenants,
including a cash flow covenant (the "Cash Flow Covenant") requiring the Firm to maintain a
minimum defined year-end cash flow. Because of its poor financial performance, the Firm was
unable to meet this covenant in 2008.
The defendants and others at the Firm were aware that the failure to meet the Cash Flow
Covenant during the 2008 credit crisis could have disastrous effects on the Firm. To avoid this,
the defendants and others at the Firm (individually and collectively, the "Schemers") engaged in
a scheme (the "Scheme") to defraud the Firm's lenders and others by, among other things,
misrepresenting the Firm's financial performance and compliance with the Cash Flow
Covenant. In later years, among other things, the Schemers continued to misrepresent the
Firm's financial performance and condition and that the Firm was in compliance with the Cash
Flow Covenant and other covenants and defrauded additional lenders and investors using
similar misstatements.
As part of the efforts to ensure the success of the Scheme, the Schemers lied to and
otherwise misled the Firm's partners and auditors, as well as others. The Schemers, themselves
or working through others, withheld information and affirmatively concealed the Scheme when
they were questioned by partners, including members of the Firm's Executive Committee,
auditors, or others.
The Fraudulent Methods
By or about the end of2008, the Schemers had created a document they called the
"Master Plan" that described certain fraudulent accounting adjustments that the Schemers
decided to pursue as part of the Scheme. From in or about the end of2008 until the Firm's
bankruptcy in 2012, the Schemers input numerous of these and other fraudulent adjustments,
and engaged in other fraudulent conduct, most of which made it appear that the Firm had either
increased revenue, decreased expenses, or limited distributions to partners. Some of these
fraudulent adjustments and acts were:
a. Reversing disbursement write-offs - From 2008 through 2011, the Schemers improperly
reversed millions of dollars of write-offs of client disbursements that the Firm had no intention or
reasonable expectation of collecting.
b. Reclassifying disbursement payments - From 2008 through 2011, the Schemers
improperly reclassified millions of dollars of payments that had been applied to client disbursements
during the year and applied the payments instead to outstanding fee amounts.
c. Reclassifying OJ Counsel payments - From 2008 through 2011, the Schemers
reclassified millions of dollars of compensation to Of Counsel I avvy ers as equity partner compensation.
Historically, Of Counsel compensation had been treated as an expense in the Firm's financial
statements.
d. Reversing credit card write-offs - In 2008 the Firm initially properly wrote off more
than $2.4 million in charges from an American Express card associated with defendant SANDERS that
had not previously been expensed and were not chargeable to clients. For year-end 2008, the Schemers
fraudulently reversed this write-off and hid the amount in the Firm's books as an unbilled client
disbursement receivable. Each subsequent year, the Schemers initially wrote this amount off, but then
reversed the write-off at year-end. The amount remained on the Firm's books as an unbilled client
disbursement receivable at the time of the bankruptcy.
e. Reclassifying salaried partner expenses - In 2008, the Schemers improperly reclassified
as equity partner compensation millions of dollars in compensation paid to, and amortization of benefits
related to, two salaried, non-equity partners. Similar amounts had previously been treated as expenses
on the Firm's financial statements, so the reclassification had the effect of reducing Firm expenses.
This change in treatment was neither disclosed to the Firm's auditors nor disclosed on the Firm's
audited financial statements. In later years, the compensation paid to these two salaried partners was
classified as equity partner compensation.
f. Seeking backdated checks - During at least two year-ends from 2008 through 2011, the
Schemers sought backdated checks from clients to post to the prior year. At the end of each of the
Scheme years the Schemers engaged in efforts to hide the date on which checks were received by the
Firm. These efforts minimized the risk that the Firm's auditors would discover that December checks
received in January, including backdated checks, were being posted to the prior year.
g. Applying partner capital asfee revenue - For year-end 2009, more than $1 million that
had been contributed by a partner to satisfy his capital requirement was applied as a fee payment for the
client of a different partner. This amount was backed out of fees and applied to the partner's capital
account during 2010, but for year-end 2010 it was again applied as a fee payment for the same client.
h. Applying loan repayments as revenue - In 2008, pursuant to defendant DAVIS's
authorization, the Firm took on $2.4 million in bank loans that benefitted defendants DICARMINE and
SANDERS. In early 2012, defendants DICARMINE and SANDERS repaid the Firm the final $1.2
million owed under the loans but structured the transaction so the loan repayment would increase the
Firm's revenue for 2011.
Covenant Misstatements
In February 2009, the Firm reported to its lenders that it had satisfied the Cash Flow
Covenant at year-end 2008 by a little more than $4 million. In fact, the Firm was able to
achieve this result only by making millions of dollars of fraudulent accounting entries,
including, among others, those described above.
The Firm's fortunes did not improve in future years. To misrepresent compliance with
the Cash Flow Covenant and other covenants, the Schemers continued to make fraudulent
accounting entries like those listed on the Master Plan, as well as other fraudulent entries,
throughout the Firm's existence.
In fact, the Firm's financial condition was so poor in 2009 that defendants DAVIS,
SANDERS, and DICARMINE realized that, despite planning millions of dollars in fraudulent
adjustments for that year, they would be unable to come up with enough fraudulent adjustments
by year-end to show compliance with the Cash Flow Covenant. As a result, defendant
SANDERS sought a waiver of the covenant from the Banks. The Cash Flow Covenant floor
was reduced from $290 million to $246 million, but the Banks placed burdensome conditions on
the Firm, which caused additional financial pressure.
The Firm was unable to meet even the reduced Cash Flow Covenant level, and the Schemers
made fraudulent adjustments to the Firm's accounting records falsely to show compliance with the
Firm's covenants in 2009. In 2010 and 2011, the Schemers continued making additional fraudulent
adjustments falsely to show compliance with covenants, or to reduce the impact of a covenant breach.
These and other fraudulent activities were engaged in, among other things, to conceal
thc Firm's breach of several of its covenants, and otherwise to hide the true financial condition
of the firm.
The Private Placement and the Revolving Line of Credit
In April 2010, the firm refinanced its debt with a $150 million private placement of securities
with 13 insurance companies and a $100 million revolving line of credit with a syndicate of banks. To
obtain this financing, the Schemers, among other things, misrepresented the Firm's financial condition
and practices to potential investors and lenders. For example, the Schemers provided potential
investors and lenders with financial statements that falsely represented, among other things, that the
Firm had complied with its covenants.
As another example, as part of the private placement process the Schemers provided potential
investors with an offering memorandum that contained numerous misstatements. Some of the
misstatements contained in the offering memorandum are as follows:
a. The offering memorandum purported to disclose all the Firm's debt. It did not.
b. The offering memorandum stated, in substance, that departing partners received their
capital during the three years following their departure from the Firm. But in fact, the Schemers
fraudulently reclassified draws and distributions paid to departing partners during their final year of
employment as returns of capital, in order to enable the Firm to appear to meet another of its covenants.
c. The offering memorandum stated, in substance, that "[ c ]lient disbursement receivables
are written-off when deemed uncollectible. . ... " In fact, as described above, millions of dollars in
client disbursement receivables that had been deemed uncollectible and written-off during 2008 were
fraudulently reversed and put back on the Firm's balance sheet in order to reduce 2008 expenses.
These amounts had been budgeted to be written off in 2009 instead. Millions of dollars worth of client
disbursement receivable write-offs were reversed for year-end 2009.
The Bankruptcy
By in or about March 2012, the Scheme had collapsed in on itself. For years, the
Schemers had been fraudulently claiming revenue that the Firm did not have and pushing
expenses and financial obligations off into the future. The Firm could no longer pay partners
enough to prevent their departure, and the Schemers could no longer fool the Firm's lenders,
investors, and others. The Firm declared bankruptcy; thousands lost their jobs; and the Firm's
creditors were left owed hundreds of millions of dollars.
COUNT TWO:
AND THE GRAND JURy AFORESAID, by this indictment, further accuses the
defendants STEVEN DAVIS, STEPHEN DICARMINE, and JOEL SANDERS of the crime of
GRAND LARCENY IN THE FIRST DEGREE, in violation of Penal Law §155.42,
committed as follows:
The defendants STEVEN DAVIS, STEPHEN DICARMINE, and JOEL SANDERS, in
the County of New York, during the period from in or about late December 2009, to on or about
April 16, 2010, stole property from an entity known to the Grand Jury, to wit, Hartford Life
Insurance Company, and the value of the property exceeded one million dollars.
COUNT THREE:
AND THE GRAND JURY AFORESAID, by this indictment, further accuses the
defendants STEVEN DAVIS, STEPHEN DICARMINE, and JOEL SANDERS of the crime of
GRAND LARCENY IN THE FIRST DEGRE~, in violation of Penal Law §155.42,
committed as follows:
The defendants STEVEN DAVIS, STEPHEN DICARMINE, and JOEL SANDERS, in
the County of New York, during the period from in or about late December 2009, to on or about
April 16, 2010, stole property from an entity known to the Grand Jury, to wit, Pacific Insurance
Company, Ltd., and the value of the property exceeded one million dollars.
APPENDIXB
Hugl1es Hubbard
Peirce R. Moser, Esq. Steven Pilnyak, Esq. Assistant District Attorneys Office of the District Attorney of New York County
One Hogan Place New York, New York 10013
March 24,2014
Re: People v. Steven Davis, Stephen DiCannine, Joel Sanders and Zachary WalTen, Indictment No. 773/2014
Dear Messrs. Moser and Pilnyalc:
Hughes l1ubbnrd & Heed LLP Ooe Batler), Park Plaza
New York, New York 10004-1482 Telephone: 212-837-6000
Pax: 212-422-4726 hughcshubbard.com
EuwarJ].M. Little Direct Dial: 212-837-6400
On behalf of our client Joel Sanders, we are making the following requests pursuant to Brady v. Mmyland, 373 U.S. 83 (1963); Giglio v. United States, 405 U,S, 150 (1972); People v. Cwikla, 46 N.Y.2d 434, 441 (l979) (following both Brady and Giglio); and CPL § 240.20(1)(h),1 for any and all material that could be either exculpatory or would tend to impeach a prosecution witness. Counsel for codefendants Steven Davis and Stephen DiCarmine join in these requests on behalf of their clients.
We are also requesting that you respond in writing as to whether you accept our requests as proper under Brady and Giglio. It is not sufficient to respond simply with the boilerplate statement that the prosecution is aware of its duties and will act accordingly. It is only by knowing whether we disagree over the scope of disclostlre that we can seek a ruling from the Court, if necessary, as to the parties' ethical, legal and constitutional obligations.
As you undoubtedly understand, material must be discloscd ifit is possible that it is exculpatory or tends to impeach a prosecution witness. It may not be withheld on the ground that the prosecution does not believe the material is actually exculpatory or tends to impeach a prosecution witness. See, e.g., People v. COl1solazio, 40 N.Y.2d 446, 453 (1976) ("where ... there was some basis for argument that the material in the possession of the prosecutor might be
I This section requires the disclosure upon a defendant's demand to produce "[a]nything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States." (Emphasis added.)
New York II \\'Il,hing(oll, D.C. II Lo, Angeles II Miumi " Jersey City " KtlllsltS City " Paris" 11Jkyo
exculpatory, deference to the prosecutor's dis.cretion must give way, and the duty to determine the merits of the request for disclosure then devolves on the trial cOUli") (emphasis added).
2
We are hereby requesting disclosure of any and all material that possibly could be exculpatory or would tend to impeach a prosecution witness, including but not limited to:
1. Any statement2 by any witness3 that the witness believes that there was no wrongdoing with respect to anyone or more of the crimes charged in the indictment or that any defendant is not guilty of anyone or more of the crimes charged in the indictment.
2. Any statement by any witness that persons other than the defendants are guilty of the crimes charged in the indictment or are otherwise responsible for the actions or conduct described in the indictment.
3. Any agreement or assurance, direct or indirect, written or oral, or even just understood, to give a benefit of any kind to a prosecution witness, including but not limited to an immunity agreement, a plea agreement, an agreement not to publicize a witness's guilty plea or to seal proceedings, an agreement to no bail or reduced bail, an agreement on sentencing, an agreement to assist in terms of imprisonment, an agreement not to seek fines or restitution, an agreement to assist a witness in cOlll1ection with related civil proceedings, an agreement not to seek disbarment or revocation of a professional license or to recommend against disbarment or revocation of a professional license, or an agreement to assist in mitigating any potential collateral consequence of a guilty plea.
4. The existence of any document4 not otherwise produced by the prosecution indicating that the defendants were not responsible for the accounting treatments that are the subject of the indictment or for the representations in the bond offering;
5. The existence of any document not otherwise produced by the prosecution indicating that others were responsible for the accounting treatments that are the subject of the indictment or for the representations in the bond offering.
6. The existence of any document not otherwise produced by the prosecution indicating that Ernst & Young was aware of any of the accounting treatments that are the subject of the indictment.
2 "Statement" is defined for purposes of these requests as any statement, whether oral, written, recorded or electronic.
3 "Witness" is defined for purposes of these requests as any witness whether or not the prosecution intends to call the witness at trial.
4 "Document" is defined for purposes of these requests as any writing or recording, printed, handwritten, taped or electronically created.
3
7. The existence of any document not otherwise produced by the prosecution indicating that partners of Dewey & LeBoeuf, including members of its Executive Committee, were aware of any of the accounting treatments that are the subject of the indictment
8. Any instance in which any witness changed his or her statement as to the existence of any wrongdoing with respect to one or more of the crimes charged in the indictment or as to the guilt or innocence of a defendant.
9. Any prior convictions, pending charges or investigations of a prosecution witness or evidence that he or she lies or has lied or is or was deceptive or fraudulent.
10. Any information that a prosecution witness is biased against any defendants or has a motive to lie or distort his or her testimony.
11. Any use of illegal drugs or misuse of prescribed drugs by a prosecution witness.
12. The existence of any mental illness of a prosecution witness or the psychiatric treatment of such a witness for any mental illness.
I reiterate that this list is not exclusive, but illustrative ofthe material that we consider Brady or Giglio material. Again, to the extent the prosecution disagrees that any of these requests falls within its disclosure obligations, we request that you inform us immediately so that we can seek a ruling from the Court expeditiously.
Finally, due process and CPL §240.20(1)(h) require that disclosure of potentially exculpatory material be made as soon as a prosecutor recognizes that the prosecution has exculpatory material, and due process requires that potential impeachment evidence material to gUilt or innocence be made in sufficient time to permit the defendants to make etIective use of that information at trial. See, e.g. T-Veathel!Ol'd v. Bursey, 429 U.S. 545, 559 (1997). Disclosure must therefore be made sufficiently in advance oftrial so that the defense will have the material ill time to investigate and prepare for trial. It is not an excuse to delay disclosure on the grounds that the material is also Rosario material (CPL § 240.45) that is not produced until time oftrial because Bmdy, Giglio and their progeny provide an independent basis for producing it earlier. Similarly, cases in which cOUlis have declined to dismiss charges because of the prosecutor's failure to fulfil the prosecutor's Brady or Giglio obligations are not a license to ignore those obligations.
Sincerely,
~)~ r L;/ '-.--Edward J.M. Little
cc: Elkan Abramowitz, Esq. Lawrence S. Bader, Esq.
Austin V. Campriello, Esq. Mary Beth Buchanan, Esq. Marc Weinstein, Esq.
4
APPENDIXC
Hughes Hubbard
Peirce R. Moser, Esq. Steven Pilnyak, Esq. Assistant District Attorneys Office of the Dlstl'ict Attomey of New York COUl1ty
One Hogan Place New York, New York 10013
April 29, 2014
Re: Peoplev. Steven Davis, Stephen DiCarmine, Joel Sanders and Zachat'y Warren, Indictment No. 773/2014 .
Dear Messrs. Moser and Pilnyak:
Hughes HuhblU'Ci ($ Heed ILl' One Battet)' PR~k Plaza
New York, New York 10004·1482 'feiephonel 212-837-6000
PaK; ZI2-422-4726 hLighesliubba(d.cum
Edward j.M. Little DirettDIIiI: 212-837-6400
liltle@hugh~hl1bbard.CDm
On behalf of ourolient Joel Sanders, we are making the following demands for discovery under Criminal Procedure Law ("CPL"); Article 240. Counsel for codefendants Steven Davis and· Stephen DiCannine join in these demands on behalf of their clients.
For the purpose of these demands, "property" is defined broadly as it is under CPL § 240.20(3), meaning "any existing tangible personal or real property, including, but not limited to, books, records, reports, memoranda, papers, photographs, tapes or other electronic recordings ... ," etc.
We are hereby demanding discovery of all property which the prosecution intends to introduce at trial andlor which is matelial to the preparation of the defense, including but not limited to the following property in theposscssion or control oftbe Office of the District Attorney ('~your Office';) and its.agents:
1. Any and all property provided by the tl'ustee in bankn.lptcy for Dewey & LeBo{!ufLLP ("Dewey"), his COlU1sei or his agents.
2.. The platform~ software; data and related ma:terial~ comprising Dewey's aCcoUl1ting system.
3. Any and all property provided by the accounting firm Ernst & Young ("EY") (or its counsel or agents), including but not limited to material provided by Dewey to BY, letters, cmails and c011'eSpOndeilce betweetl the
New York III WlUIhington, f).C. III L6s;\ngcll's III Miumi III Jersey City .. KtUISU~ City " Pam III Tokyo
Peirce R. Moser, EsqJSteven Pllnyak; Esq. Apdl 29, 2014
. Page 2
two, audit workpapers, financial statements (drafts and finals), and the like.
4. Any .and aU property provided by the accounting firm PricewaterhouseCoopers ("PwC") (01' its counselor agents), including but llbtlimited to material provided by Dewey orDewey Ballantine to PwC, letters, emails and conespondence between the entities, alldit workpapers, financial statements (drafts and finals), arId the like;
5. Any and aU property provided by the banks (or their counselor agents) who provided financing to Dewey or the banks' counselor agents, including but not limited to material provicleld by Dewey to the banks, letters, emaUs and other correspondence betwe~n them, loan agreements (drafts and :finals), credit mel'l1oranda, the banks' interual docunients relating to fInancing and approval of same, and the like.
6. Any and all property provided by the entities (or their cowlsel 01' agents) who invested in the bond 01' bonds i~sued by Dewey, including but 110t
limited to material provided by Dewey to the entities, lettel's,emails and other conelipt1l1deuce between or among Dewey, the private placement .memorandum 01' memoranda (drafts and finals), the entities' internal documents relating to the investment and approval of same, and the like.
7. Any and all property provided by any person or entity relating to Dewey's tax retu1'l1s.
8. Any and all property provided by an)' former partner or employee of Dewey or their counselor ag§:uts.
·9. Any and all propeliy provided by The American. Lawyel'.
10. Any and aU jJl'opel't)i proVided by McKinsey & Company ("McKinsey") relating to advice about the merger of Dewey BaUantille and LeBoeuf Lamb or material submitted by others to McKinsey in thatcollnection.
11. Any and all property provided by Paul Weiss Rifldnd Wharton & Gartison LLP ("Paul Weiss") relating to uny legal work ol'udvice provided to Dewey or any oftbe defendants orl11flterial submitted by others to Paul Weiss in that connection.
12. Any and all property provided by au:voi1e else relating to legal advice provided by Paul Weiss relating to any legal work or advice provided to Dewey or any of the defendants.
Peirce R. Moser, Esq.lSteven Pilnyak, Esq. April 29, 2014
Page 3
13. Any and all property provided by Bingham McCutchen LLP relating to legal work or advice provided to Dewey or any of the defendants.
14. Any and all property provided by private il1vestigatol's relating to Dewey.
15. Any and all property provided by anyone else relating to Dewey, Dewey Ballantine, or LeBoeuf Lamb.
16. Any and allrecOl:dings to the intervieW of Zachary' Warren, whether written, taped or electronically recorded. .
17. Any and all materials and il1fOl1nation described in C:P'I.,§ 240 .20( 1)( a)-(i).
18. In addition to any ofthe above that was provided by Qutside parties, any and all correspondence or cover sheets submitted with or in cOlmection with such property, inater'ials or infonnation.
If any thitd paity has already producecl material to your Office IlOtwithstanding an allseltioli of attorney-client privilege or attorney work produqt doctrine, vie consider such assertion to have been waived by the production. We· therefore request that if your Office is withholding any such matel'ialas aresult of such assertion, you advise us of that fact.
We request that you respond in detail and as expeditiously as possible as to whetber you ate declining to produce any propelty that is the subject of these demands so that we can seek, if necessary, a court order under CPL § 240.40.
In addition, please consider this letlel'a request plU'suantto cpt 240.43 that you notify each of these three defendants Mall specific instances of any conduct ofthe type set forth in that section that you iI'ltend to use at trial.
Finally, please provide a: written response toOUl' req~lest for Brady mid Giglio material made by Jette1' dated~llill'ch 24,2014,
ce: Elk.an Abramowitz, Esq. Lawrence S. Bader, Esq. Austin V. Campriello, Esq. Mary Beth Buchal1all; Esq. Marc Weitlstein, Esq.
Edward J.M. Little
APPENDIXD
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 72
PEOPLE OF THE STATE OF NEW YORK,
- agam.st..,
STEVEN DAVIS, STEPHEN DICARMINE, JOEL SANDERS, and ZACHARY WARREN,
Defendants.
Ind. No. 773/2014
REQUEST FOR A BILL OF PARTICULARS
Defendant Joel Sanders makes the following request fora Bill of Particulars and
Demand for Discovery pursuant to CPL § 200.95. Counsel for Defendants Steven Davis and
Stephen DiCannine join in this request on behalf of their clients.
To be able to defend Mr. Sanders, Mr. Davis and Mr. PiCaonine- (the
"Defendants") properly against the chargeS .in the often vague andconclusory Indictment filed in
this case, we need rf;Jal specifics about their alleged acts or omissions that supposedly support the
charges. The Indictment is peppered with references to "other" people, acts and omissions that
are never identified. Many of the allegations in the Indictment are written in the passive voice
(e.g., "fraudulent actlvities were engaged, in')/ making it impossJble to determine what the
People are alleging. To have an opportunity to prepal'e a defense against the charges, the
Defendants must be informed what exactly the people are alleging.
These requests seek factual information not provided in the Indictment; they are
110t questions about evidence. It is Out understanding and belief that all the infonnation
requested herein is solely within the custody and control of the DistrictAttorney's office.
2
Without the requested information the Defendants Cani10t adequately prepare or conduct their
defense.
Therefore~ pursuant to CPL § 200.95, the Defendants requ~st that, within 15 days
of service of this request; the District Attorney serve upon the undersigned and file with the
Court a Bill of Particulars specifying the following iteinS off actual information for each count of
the Indictment:
1. Describe the substance of each Defendant's conduct encompassed
by each offense·charged.
a. Include a description of each Defendant's specific acts or
omissions that allegedly constituted a scheme to defraud, the stealing of property
and/or the making or causing of a false entry in an enterprise's business records,
b. For each act or omission alleged, also sei forth the specific date,
time and place of the act or omission.
c, For each act or omission alleged,a1so identify any other
individuals whom the People allege participated in the aQt OJ omission.
2. State whether the People intend to prove that the partiCUlar \
Defendant acted as a principal, accomplice or both.
a. If charged as a principal, state how? and by whom, each Defendant
was allegedly aided and abetted.
b. If charged ~ an accomplice, state whom each Defendant allegedly
aided and abetted, and hbw each Defendant aided and abetted that individual.
3
3. With respectto the allegation in Count One of the Indictment that
"the Schemers lied to and otherwise misled the Firm's partnel's and auditors, as well as
others," specify:
(a) The identity of each auditor towhomariy Defendant allegedly lied, the identity of the Defendant(s) who allegedly lied, the date on which each al1~ged lie occurred and the substance of each alleged lie;
(b) The identity of each auditor any Defendant allegedly misled> the identity of the Defendant(s) who allegedly misled that.allditor, the date on which each alleged misleading statement occurred and the substance of each alleg{;'ld misleading statement;
( c) The identity of each palmer to whom any Defendant allegedly lied, the identity of the Defendant(s) who allegedly liedj the date on which each alleged lie occurred and the substance of each alleged lie;
(d) The identity of each partner any Defendant misled, the identity of the Defendant(s) who :tnisledthat auditor, the date on which each act of misleading oc-curred and the substance of each misleading statement;
(e) The identity of each of the "others" to whom any Defendant lied. the identity of the Defendant( s) who lied, the date on which each He occurred, and the substance of each lie; and
(f) The identity of each of the"others'~ any Defendant misled, the identity of the Defendant(s) who misled that "other~', the date on which each act of misleading occurred and the substance of each misleading statement.
4. With respect to the allegation in Count One of the Indictment that
"The Schemers, themselves or working through others, withheld informatiDn and
a:ffinnatively concealed the Scheme when they were questioned by partners, including
members of the Firtn'sExeclitive COmmittee, auditors, or others" specify for eacli such
occurrence:
(a) its date;
(b) the identity of the partner;
(c) the identity of the auditor;
(d) the identity ofthe "other" questioner;
(e) the substance of the information;
Cf) whether it was withheld or affinnatively concealed; and
(g) the identity of the Defendant Or the "other" through whom the Defendant allegedly worked.
5, With respect to the allegation in Count One of the Indictment
concerning the Private Placement that "the Schemers provided potential investors and
lenders with financial statements that ralsely represented, among other things, that the
ftnn had cortrplied with itscovertants," set forth for each Defe.l1pant:
(a) each date on which he allegedly engaged in such conduct;
4
(b) for each date, the identity of each investor entity to which he allegedly proVided false statements;
(0) for each date, the identity of each individual at each investor entity who allegedly received the false statements;
Cd) for each date, the identity of each lender entity to which he all.egedly provided the false statements;
( e) for each date, the identity of each individual at each lender entity who rec.eived tl1e: allegedly ratse st1'ltemems; and
(f) for each date; whether each Defendant engaged in such conduct personally or through another or others, and if through another or others; identify each such individual.
6. With respect to the allegation in Count One of the Indictment
concerning the Private Placement that "the Schemers provided potential investors with an
offering memorandum that contained numerous misstatements," set forth for each
Defendant:
5
(a) each date on which he allegedly engaged in such conduct;
(b) for each date, the identity of each invelltor entity to which he an~gedly provided the offering m~morandum;
(c) for each date, the identity of each individual at each investor entity who allegedly received the offering memorandum; and
(d) for each date, whether each Defendant allegedly engaged in such conduct personally or through another or others,and if through another or others, identify each such individual.
7. With. respect to the allegatiolls in CQunt One of the IndictIrient
conceniin~ bankruptcy, the substance of each Defendant's conduct that allegedly caused
the bankruptcy.
8. With :respect to the allegations in Count One of the Indictment
concerning bankruptcy, the factual infonnation that the People intend to prove at trial
about the bankri.\ptcy and its cai,lses.
9. With respect to the allegations in Count One of the Indictment
con~rning job loss as a result of the Jbankruptcy, the substance of each Defendant's
conduct that allegedly caused tbejob loss.
10. With respect to the ,allegations in Count One of the Indictment \
concerning job loss as. a result of the bankruptcy, the factual infonnation that tbePeople
intend to prove at trial about the job loss and its causes.
11. With respect to the allegations in Count One of the Indictment
concerning creditors' losse's as a result of the bankruptcy, the substance of each
Defendant's conduct that allegedly caused the creditors' losses.
6
12. With respect to the. allegations in Count One of the indictment
concerning creditors' losses as a result of the bankruptcy, thefactuaI information that the
People intend to prove at trial about theoreditors' losses and their causes.
13. With respect to the references in Count One of the Indictment to
"Schemers/' specify for each use of the term "Schemers" whether the People allege that
each of the Defendants was one of the individuals identified as the "Schemers."
14, With respect to each instance of "grand larceny" alleged, as recited
in Counts Two through Sixteen in the Indictnlent, specify:
(a}whether each :of the Defendants intended to deprive each ofllie specified entities of property;
(b) whether each of the Defendantsintencled to appropriate each of the specified entities' property to himself;
(0) whether each of the Defendants intended to appropriate each of the specified entities' property to another (and, if so, whom);
Cd) whether each of the Defendants intended to wHhhold each of the specified entities' property;
"Depl'ivel)
(e) whether each ofthebefendants intended to cause each of the specified entities' property to be witbheld (and, if so, by whom);
(f) whether each of the Defendants intended to withhold each ofthe specified entities' property permanently;
(g) whether each of the Defendants intended to withhold each of the specified entities' pl'Opeliy for so extended a period that the ffi'\ior portion of its economic vruue or benefit is lost to the entity (and, if so, for what period);
(h) whether each of the Defendants intended to withhold each of the specified entities' property under such circumstances that the major
portion of its economic value cir benefit is lost to the entity (and, if so, under what circumstances);
(i) whether each oHhe Defendants intended to dispose of each of the specified entities' property in such manner as to render it unlikely that an owner Will recover such property (and, if so, what maniler);
G) whether each of the Defendants intended to dispose of each of the specified entities' property under sUch circumstances as to render it unlikely that an owner will recover such property (and, if so, under what circumstances) ;
"Appropriate"
7
(k) whether each of the Defendants intended to exercise control over each oftbe specified entities' property;
(1) whether each of the Defendants intended to aid a third person to exercise control over each of the specified entities' property (and,. if so, who);
(m) whether each of the Defendants intended to exercise control, or to aid third party to exercise control, over each of the specified entities' property petrnanently;
(n) whether eaQh of the Defendants intended to .cxcrcise control, Of to aid a third party to exercise control, over each of the specified entities' property for so extended a period as to aequite the major portion of its economic value or benefit (and, if so, for what period);
(0) whether each of the Defendants intended to exercise control, or to aid a third party to exercise control; over each of the specified entities' property under such circumstanceS as to acquire the major portion of its economic value or benefit (and, if so, under what circumstances);
(P) whether each oHhe Defendants intended to dispose of each of the specified entities~ property for the benefit of himself; and
(q) whether each of the Defendants intended to dispose of each of the specified entities' property for the benefit of a third pel,'son (and, if so, who).
15. With l'espectto each instance of1'grand larceny'; alleged, as recited
in Counts Two through Sixteen in the Indictment, specify:
(a) whether each of the Defendants wrongfully took each of the specified entities' property;
(b) whether each of the Defendants wrongfully obtained each of the specUied entities' property;
(c) whether each of the Defendants wrongfully withheld each of the specified entities' ptoperty;
8
(d) whether each of the Defendants engaged in conduct heretofore defined or kn.own as common law larceny by trespassory taking;
(e) whether each of the Defefidantsengaged in conduct heretofore defined cir ,knoWn as common law larceny bytriok;
(f) whether each of the Defendants engaged in conduct heretofore defined or known as embezzlement;
(g) whether each of the Defendants engaged in oonduct heretofore defined 01' known as obtaining property by false pretenses~
(h) whether each of the Defendants engaged in a wrongful taking, obtaining or withholding of another's property by acquiring lost property;
(i) whether each of the DefendaIlts engaged in a wrongf\ll taking, obtairiing or withholding of another's ptopertY by cOlllll1itting thectitne of issuing a bad check, as defined in Section 190.05 of the Penal Law;
0) whether each of the Defendants engaged in a wrongful taking, obtaining or withholding of another's property by false promise;
(k) whether each of the Defendants engaged in a wrongful taking, obtaining or withholding of another's property by extortion.
"False Promise H
(1) whether each of the Defendants obtained the property of each of the specified entities by means of an express representation that he will in the future engage inparticlliar conduct (and, Ifso, what conduct and when) when he did not intend to engage in such conduct;
(m) whether each of the Defendants obtained the property of each of the specified entities by means of ali express representation that a third person
will in the future engage in particular conduct (and, ifso, what third persoll, what conduct and when) when he did not believe that the third person intended to engage in such conduct;
9
(n) whether each of the Defendants obtained the property- of each of the specified entities by means of an implied representation that he will in the future engage in particular conduct (and, if go,. what conduct and when) when he did not intend to engage in such conduct;
(0) whether each oftM Defendants obtained the property of each ofihe specified entities by means of an implied representation that a third person win in the future engage in particular conduct (and, if so~ what third person, what conduct and When) when he did not believe that the thud person intended to engage in sucl1 conduct~
16. With respect to each instance of~\falsifying busiriessrecotds;;
alleged, as recited in Counts Seventeen through One Hundred and Four in the Indictment,
specifY:
(a) what aspect of each entry (identified in th€l People's Voluntary Disclosure Form) in the busin~ records of each specifkd enterprise (identifiedin the Indictment) was allegedly false;
(b) whether each of the Defendants made each allegedly false entry in the busin~ss records of each specified enterprise;
(c) whether each of the Defendants caused each allegedly fals-e entry in the business records of each specified enterprise to be made (and, if SOl who made the entry);
(d) whether each of the, De:fendants made or caused each alleged false entry in the business records of each specified enterprise with the intent to commit another crime (and, if so, what crime(s));
(e) whether each of the Defendants made or caused each alleged false entry in the business records of each specified enterprise with the jntent to conceal the c01U1l1ission of another crime (and, lfso, what crime(s); and
(f) for each allegedly false entry in the records of each specified enterprise, what condition or activity of that enterprise is evidenced or reflected by the record.
10
17. With respect to the Conspiracy charged in Count One Hundred
And Six ()fthe indictment, identify Employee C (Overt Acts 3, 7, 9, 13, 16,26,28,30,
31,32,37,41,50,51,52), Partner F (Overt Act 10; Ovelt Act 21), Employee D (Overt
Acts 11, 12, 14, 16, 17, 18), Employee t: (Overt Acts 12, 13, 15), Partner B (Overt Acts
20, 26), Partner C (Overt Act 20). Employee A (Overt Act 21), Employee N (Overt Act
31), and Employee G (Overt Acts 50,51,52).
"others":
18. Identify the following individuals referred to in the Indictment as
(a) The <fathers at the FirmH who allegedly "engaged in a scheme (the 'Scheme') to defraud the Firm's lenders" (collectively dubbed'the "Schemers").
(b) The "others" (apmt from "the Firm's lenders") whom "the "Schemers" allegedly defrauded.
( c) The "others" (apart nom the "Finn's partners and auditors") who the "Schemers;' allegedly "lied to and otherwise misled" to "ensure the success of the Scheme."
(d) The "others" through whom the "Scheme~fi" allegedly worked to withhold information and conceal the scheme.
19. State who "created a document ... called the 'Master Plan"\ wheu
it was created, .who received it, and who had knowledge of its existence.
20. Identify the following alleged actions, events or things described in
(a) The "othel' fraudulent adjustments" (apart from those allegedly described in the document called the "MasterPlan") and ~'othel' fraudulent conduct" the "Schemers" allegedly engaged in from 2008 through 2012.
(b) The "otber[]" allegedly "fraudulent !;lccounting entries" (apart from "those described above" in the Indictment) m~e in February 2009 to
11
enable the Finn to report to its lenders 'that it had satisfied the Cash Flow Covenant at year· end 2008.
( c) The "other covenants" (apart from the Cash Flow Covenant) with which the Defendants allegedly misrepresented complianoe.
Cd) The "other fralldulenJ activities .. ,engaged,in, among other things, to conceal the Fl:rn1' s breach of several of its covenants:; who allegedly engaged in such "other fraudulent activities;" and the dates and times of the acts or omissions alleged to constitute suoh "othel' fraudulent activities. "
(e) The "other things" (apart from "tnisrepresent[ing] the Finn's financial condition and practices to potential investors and lenders") the "Schemers" allegedly did or omitted to do to obtain fitHu)'cing through the private placement and revolving line Of credit in Apri120 10.
(f) The"otherthings" (apart from "that the Firm had complied with its covenants") that the "Schemers" allegedly falsely represented in financial statements provided to potehtial investors and lenders incohilection with the April 201 0 private placement and revolving line of credit.
(g) The other misstatements (apart from "p:urport[ing] to disclose all the Finn's debt;" "stat[ing], in substance, that departing partners received their capital during the three years following their departure from the Firm;" and "stat[ing], in substance, that ',[c]liertt disbursement receivables are written~offwhen deern.ed uncollectible"') allegedly contained in the offering memorandum provid.ed to potential investor$ in the private placement.
21. For each write-off allegedly reversed "improperly," specify (a) the
write-off allegedly reversed, (b) the person(s} who allegedly reversed it, (c) the date. and
time the write-off was allegedly reversed, (d) what was allegedly "improper" about the
reversal, (e) the valueofthe write.-offallegedly reversed, (f) who allegedly ordered that
the write-off be reversed, and (g) who allegedly made the fraudu1ent entry.
22. For each disbursement payment allegedly reclassified
"improperly," specify (a) the disbursement payment allegedly reclassified, (b) the
person(s) who allegedly reclllssifiedit, (0) the date and time the disbursement payment
12
was aUegedlyreclassified, (d) whatwas allegedly "imptoper~l abdut the reclassification,
(e) the value of the disbursement allegedly reclassified, (f) who allegedly ordered that the
disbursement be reclassified, and (g) who allegedly made the fraudulent entry.
23. For the alleged $2.4 million write-off of charges to an American
Express card described in the Indictment, specify (a) the person(s) who allegedly wrote
off the charges, (b) whenthe charges were allegedly written off, (c) the person(s) who
allegedly reversed the write-off, Cd) when the write-:offwas allegedly reversed, (e) what
Was allegedly "fraudulent" about the revers::tl of the write off,and (f) the facts alleged to
support the statement that the charges "were not chargeable to clients.')
24, For the "compensation paid to, andarrlOrtization of business
related to, two salaried~ non-equity partners" allegedly "improperly reclassified" as equity
partner compensation, specify (a) the "two salaried, non-equity partners," (b) the
"[s]i.milar amounts" allegedly previously treated as expenses on the Firm's financial
statements; (c) the person(s) who allegedly treated such "ts]imilar amounts" as expenses
on the Firm's fmancial statements, (d) the dates and times such "[s]llnilar amounts were
allegedly treated as expenses on the Film's financial statements, and (e) what was \
allegedly "improper" about the reclassification.
25. With respect to the "backdated checks" allegedly sQught from
clients, specify (a) the person(s) who allegedly sought "backdated checks," (b) the dates
and times such person(s) allegedly SQught "backdated checks,'>' (0) the cUent(s) from
whom such person(s) allegedly sought "backdated checks," (d) the person(s) who
allegedly "engaged in efforts to hide the date on which the checks Were received," (e) th.e
dates and times such persons "engaged in efforts to hide the date on which the checks
13
were received," anel (f) theact(s) or omission(s) that constituted "efforts to hide the date
on which the checks were received.;' .
26. With respect to the "more than $1 million that had been
contributed by a partner to satisfy his capital requirement/' specify (a) the partner who
allegedly contributed the more than $1 million, (b) the person(s) who allegedly applied
the funds "as a fee payment for the client of a different partner," (c) the "client" and
"different pruiner" for whom. the fund$ w~re I,lUegedly applied as a fee payment, (d) the
date and time the funds were allegedly applied as a fee payment, (e) the person(s) who
allegedly "backed out" the funds from fees and applied them to the partner's capital
account duritlg 2010, (f) the date and tiIDe the funds were allegedly "backed out" from
fees and applied to the partner's capital account during 2010," (g) the person(s) who
allegedly applied the frtnds "as a fee paYIIlent for the srupe cHern" for year-end 2010, and
(h) the date and time the funds were allegedly applied "as a fee payment for the same
client" for yeru'-end 2010.
27. Fot the $2.4 million in. bank loans that allegedly benefitted Mr~
DiCarmine and Mr. Sanders, specify (a) Mr. Sattders' and Mr. DiCarm1ne's act(s) or \
omission(s) that constituted "structur[ing] the transaction so the loan repayment would
increase the Finn'.s revenue for2011," and (b) which, if!illy, of s.uch acts or omissions
are alleged to be fraudulent, improper or unlawful.
28. Specify what debt the offering memorandum allegedly failed to
disClose.
29. With respect to the client disbl1fsement receivables "deemed
Uncollectible and written-off during 2008," specify (a) the client disbursement
14
receivables that were IIdeemed uncollectible and written~off during 2008/, (b) the
person(s) who deemed the client disbursement receivables uncollectible; (c) the date and
time such receivables were deemed uncollectible~" (d) the person(s) who wrote off the
client disbmsement receivables dtiring 2008, (e) the date andtirtle such receivables Were
written off during 2008, (f) the person(s) who budgeted those amounts "to be written off
in 2009 inst\::ad," and (g) the date and time such amounts were "budgeted to be written
off in 2009 instead."
30. With respect to the "[m]il1ions ofdoHars worth of client
disbursement receivable writeAoffs" allegedly "reversed for yeaNmd 2009," specify (a)
the particular cliellt disbursement write-offs allegedly reversed for year-end 2009, (b) the
person(s) who allegedly wrote off those disbursemenfs, ( c) the date and. time those
disbursements were allegedly written off, Cd) the persoll(s) who allegedly reversed the
client disbllrsement write-OffS for year-end 2009 , (e) the date lUldtime those write-offs
were allegedly reversed, and (f) which, if any. of the reversals of write-offs are alleged to
be fraudulent. improper or unlawfuL
If you refuse to comply with this request or allY portion thereof, please take notice \
that your refusal. under cPt § 200 .95(4), must fully set forth the groUnds of your refusal, and
explain why the item of factual information is not necessary to enable the Defendants to
adequately prepare or conduct their defense. or why a protectiVt? order would be warranted, or
why the demand is untimely. Your refusal must be made in writing, served upon the
tmdersigned, and filed with the Court within 15 days of this Request for a Bill of Particulars.
The Defendants reserve the fighttb supplement this Request for a Bill of
Particulars.
Dated: NewYork~ New York May 28, 2013
/
HUGHES HUBBARD & REED LLP
By: 2?X Edward lM. Little Marc A. Weinstein David B. Shames One Blittery Park Plaza New York, New York 10004 (212) 837-6400 (telepl1one) (212) 422-4726 (fax)
Attorneys for Defendant Joel Sanders
15
APPENDIXE
ID 0 W n ~I R AJ I IS . . ID IlIE . I I~ l.i I \ V L
BY Pdf AND REGULAR MAIL
Pettce Moser Assistant District Attorney New York County District Attorney's Office One Hogan Place New York, New York 10013
Austin V. Campriello Voice: 212-541-2065 Fax: 212-541-1365 nvcampriello@br:ynnCQ,'e.com
May 28, 2014
/
"
Re: People v. Steven H. Davis,Joei Sanders, Stephen DiCarmine and Zachru:yWarren, Indictment. 773/2014
Deaf Mr. Moser:
lam sending this letter on behalf of Messrs. Abramowitz and Little as well as myself. We understand based on our conversation of May 13th that you intend to respond to our discovery detna.nds as a whole, once those demands ate complete. We also understand you will respond to them approximately one month before our omnibus motions are due on July 11 tho
On Match 26, 2014, Mr. Little sent to you by email on behalf of defendants Davis, Sanders and DiCarmine a letter dated March 24, 2014 that contained detailed Brncfy/ Giglio requests. On April 29 , 2014, Mr. Little sent you by email on behalf of defendants Davis, Sanders and DiCartnine a fortnal Demand for Discovery. Today, Mr. Little sent to you by email on behalf of defendants Davis, Sanders and DiCarmine a Request fot a Bill of Particulars. 'J;'his letter completes out requests fot "voluntary" discovery from you .. We write now asking for the productiQn of: .
CD a log of all m·ateria1 produced to the DANY in its investigation concerning Dewey & LeBoeuf, which has not been clawed-back by the producing party, and which the DANY has.no.t produced to defendants in its voluntary production on the alleged basis of work product privilege or any other ptivilege; .
CI all privilege logs you received from any source, including but not limited to the Trustee for the Dewey & LeBoeuf Estate, Paul Weiss Rifkin Wharton & Gat'rison, E&Y, PwC, and Proskauer Rose;
Bryan Cove LlP
1290 Avenue of the Americas
New York, NY 10104·3300 Tel IZI2) 541·Z000
Fax (2121541-4630
www.brvancave.com
Bryan Cave Vlllcus
Atlanta
Boulder
Charlotte
Ghiuogo
Colondo Springs
Dallas
Denver
Frankfurt
Hamburg
Hong Kong
Irvine
Jafferson City
Kanses City
London
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Paris
Phoenix
San Francisco
Shanghai
Singapore
St.louis
Washington. DC
aryan Cave Intornatlonol Conaulllng ~ mADe Awn CUSTOMS COWSULTANcr
www.bryano8veconsultlng.com
Bangkok
Jakarta
Kuale Lumpur
Manila
Shanghai
Singapnre
Tokyo
Peirce Moser May 28, 2014 Page 2
Brvan Cave LLP
all cottespondence or other writings, whether in hard copy or electronic form, concerning any "claw back" based on an assertion of any privilege of material that has been provided to you (you advised Justice Stolz on May 13, 2014 that certain material that had been produced was retrieved from its source based on an assertion of privilege);
all Compensation Committee records, including but not limited to spreadsheets showing compensation;
all Operations Committee agendas and follow-up clnails from the Operations Committee;
a complete set of the Executive Committee minutes;
all agendas, minutes, materials, recordings, and. follow-up memoranda related to each Executive Strategic Weekend session (typically, three days of meetings and planning for the year, sometimes held in March or April);
all agendas, minutes, materials, and recordings rdated to each fum retreat; and
all materials concerning any compensation (regardless of source) that was received by Francis Canellas, Jyhjlng Harrington, llya Alter, Lourdes Rodriguez, David Rodriguez, Dianne Cascinoor Thomas Mullikln during the period that each of them was employed by Dewey & LeBoeuf or as a result of their employment at Dewey & LeBoeuf.
You now have all of our requests. If you have questions about any of the requests, we would be happy to arrange a conference call at which we could discuss them with you. In any event, we would appreciate receiving the material we seek. I£you decline to produce any material, we would appreciate your written declination with reasons for the rejection of each request that you reject, by noon on Friday, June 13,2014, so we 'may address any issues in our omnibus motions.
Thank you in advance for your cooperation.
cc: Elkan Abramowitz, Esq. by pdf Edward J.M. Little, Esq. by pdf Paul Shechtman, Esq. by pdf
1797553.1
APPENDIXF
PEOPLE v. DAVIS et aI., Ind. No. 77312014 DEFENDANTS' DISCOVERY REQUESTS AND DISTRICT ATTORNEY'S RESPONSES
Brady Request Letter (March 24, 2014) 1) "Any statement by any witness that the witness believes that there was no wrongdoing with respect to anyone or more of the crimes charged in the indictment or that any defendant is not guilty of anyone or more of
Resp_()Il~~J()J.)is~()Y~!Y]:;~tt~l'S (June 13,2014)
No direct responses. General response to all requests:
the crimes charged in the indictment." "You make a series of requests pursuant to Brady v. 2) "Any statement by any witness that persons other than the defendants Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 are guilty ofthe crimes charged in the indictment or are otherwise U.s. 150 (1972); People v. Cwikla, 46 N.Y. 2d 434 (1979); responsible for the actions or conduct described in the indictment." and CPL § 240.20(1) (h). We are aware of our continuing 3) "Any agreement or assurance, direct or indirect, written or oral, or duties under Brady, Giglio and their progeny and will even just understood, to give a benefit of any kind to a prosecution honor our obligations." witness, including but not limited to an immunity agreement, a plea agreement, an agreement not to publicize a witness's guilty plea or to seal proceedings, an agreement to no bailor reduced bail, an agreement on sentencing, an agreement to assist in terms of imprisonment, an agreement not to seek fines or restitution, an agreement to assist a witness in connection with related civil proceedings, an agreement not to seek disbarment or revocation of a professional license or to recommend against disbarment or revocation of a professional license, or an agreement to assist in mitigating any potential collateral consequence of a guilty plea." 4) "The existence of any document not otherwise produced by the prosecution indicating that the defendants were not responsible for the accounting treatments that are the subj ect of the indictment or for the representations in the bond offering." 5) "The existence of any document not otherwise produced by the prosecution indicating that others were responsible for the accounting treatments that are the subject of the indictment or for the representations in the bond offering. 6) "The existence of any document not otherwise produced by the prosecution indicating that Ernst & Young was aware of any of the
Defendants' Discovery Requests and District Attorney's Reponses
accounting treatments that are the subject of the indictment." 7) "The existence of any document not otherwise produced by the prosecution indicating that partners of Dewey & LeBoeuf, including members of its Executive Committee, were aware of any of the accounting treatments that are the subject of the Indictment" 8) "Any instance in which any witness changed his or her statement as to the existence of any wrongdoing with respect to one or more of the crimes charged in the indictment or as to the guilt or innocence of a defendant. " 9) "Any prior convictions, pending charges or investigations of a prosecution witness or evidence that he or she lies or has lied or is or was deceptive or fraudulent." 10) "Any information that a prosecution witness is biased against any defendants or has a motive to lie or distort his or her testimony." 11) "Any use of illegal drugs or misuse of prescribed drugs by a prosecution witness." 12) "The existence of any mental illness of a prosecution witness or the psychiatric treatment of such a witness for any mental illness."
-
Discovery Request Letter (April 29, 2014) Response to Discovery Letters (June 13,2014) 1) "Any and all property provided by the trustee in bankruptcy for Dewey & LeBoeufLLP ("Dewey" ), his counselor his agents." 1) We have produced "all responsive property in our
possession, with the exception of certain lists of employees and documents that were clawed back by Dewey & LeBoeuf LLP or the Dewey & LeBoeuf Liquidation Trust ("Dewey") under a claim of Privilege."
2) The platform, software, data and related materials comprising Dewey's accounting system. 2) The DA has still not provided access, but states:
"We are working_with Dewey to provide Counsel the
2
Defendants' Discovery Requests and District Attorney's Reponses
3) Any and all property provided by the accounting finn Ernst & Young ("EY"')( or its counsel or agents), including but not limited to material provided by Dewey to EY, letters, emails and correspondence between the two, audit workpapers, financial statements (drafts and finals), and the like." 4) "Any and all property provided by the accounting finn PricewaterhouseCoopers ("PwC") (or its counsel or agents), including but not limited to material provided by Dewey or Dewey Ballantine to PwC, letters, emails and correspondence between the entities, audit wor~2apers, financial statements (drafts and finals), and the like." 5) Any and all property provided by the entities (or their counselor agents) who invested in the bond or bonds issued by Dewey, including but not limited to material provided by Dewey to the entities, letters, emails and other correspondence between or among Dewey, the private placement memorandum or memoranda (drafts and finals), the entities internal documents relating to the investment and approval of same, and the like."
6) Any and all property provided by the banks (or their counsel or agents) who provided financing to Dewey or the banks counselor agents, including but not limited to material provided by Dewey to the banks, letters, emails and other correspondence between them, loan agreements (drafts and finals), credit memoranda, the banks' internal documents relating to financing and approval of same, and the like.
3
same access to the Dewey accounting system that we have."
3) We have produced "all responsive property in our possession, with the exception of certain employee lists and certain work paper lists."
4) We have produced "all responsive property in our possession. "
5) We have produced "all responsive property in our possession."
Except "paperwork relating to a car loan given to one individual who is not a defendant"
6) We have produced "all responsive property in our possession."
Except "two documents that relate to how an entity detennined property responsive to a Grand Jury subpoena"
Defendants' Discovery Requests and District Attorney's Reponses
7) Any and all property provided by any person or entity relating to Dewey's tax returns. 7) "To the extent responsive property exists and has not
otherwise been produced, the defendants are not entitled to it at this time."
8) Any and all property provided by any former partner or employee of Dewey or their counselor agents. 8) "To the extent responsive property exists, the defendants
are not entitled to it at this time."
9) Any and all property provided by The American Lawyer. 9) "To the extent responsive property exists, the defendants are not entitled to it at this time."
10) Any and all property provided by McKinsey & Company ("McKinsey") relating to advice about the merger of Dewey Ballantine 10) "To the extent responsive property exists, the and LeBoeuf Lamb or material submitted by others to McKinsey in that defendants are not entitled to it at this time." connection. 11) Any and all property provided by Paul Weiss Rifkind Wharton & Garrison LLP ("Paul Weiss") relating to any legal work or advice 11) "To the extent responsive property exists, the provided to Dewey or any of the defendants or material submitted by defendants are not entitled to it at this time." others to Paul Weiss in that connection. 12) Any and all property provided by anyone else relating to legal advice provided by Paul Weiss relating to any legal work or advice provided to 12) "To the extent responsive property exists and has not Dewey or any of the defendants. otherwise been produced, the defendants are not entitled to
it at this time."
13) Any and all property provided by Bingham McCutchen LLP relating to legal work or advice provided to Dewey or any of the defendants. 13) "To the extent responsive property exists, the
defendants are not entitled to it at this time."
14) Any and all property provided by private investigators relating to Dewey. 14) "To the extent responsive property exists, the defendants
are not entitled to it at this time."
4
Defendants' Discovery Requests and District Attorney's Reponses
15) Any and all property provided by anyone else relating to Dewey, Dewey Ballantine, or LeBoeuf Lamb. 15) "To the extent responsive property exists and has not
otherwise been produced, the defendants are not entitled to it at this time."
16) Any and all recordings to the interview of Zachary Warren, whether written, taped or electronically recorded. 16) "To the extent responsive property exists, the
defendants are not entitled to it at this time."
17) Any and all materials and information described in CPL ) 240.20(1)( a)-(i), 17) "We have provided all responsive material and have
complied with our obligations under CPL § 240.20(l)(a)-(i). "
18) In addition to any of the above that was provided by outside parties, any and all correspondence or cover sheets submitted with or in 18) "To the extent responsive property exists and has not connection with such property, materials or information. otherwise been produced, the defendants are not entitled to
it at this time."
Third-Party Material: All material produced to the DA "notwithstanding an assertion of attorney-client or attorney work product No response doctrine, we consider such assertion to have been waived by the production. " CPL § 240.43: Request for notification to each defendant "of all specific instances of any conduct of the type set forth in that section that you "[T]he defendants are not entitled to this information at intend to use at trial." this time."
5
Defendants' Discovery Requests and District Attorney's Reponses
Discovery Request Letter (May 28, 2014) Response to Discovery Letters (June 13,2014) "a log of all material produced to the DANY in its investigation concerning Dewey & LeBoeuf, which has not been clawed-back by "To the extent a responsive log exists, the defendants are the producing party, and which the DANY has not produced to not entitled to it." defendants in its voluntary production on the alleged basis of work product privilege or any other privilege;" "all privilege logs you received from any source, including but not limited to the Trustee for the Dewey & LeBoeuf Estate, Paul Weiss "To the extent responsive privilege logs exist and have not Rifkin Wharton & Garrison, E&Y, PwC, and Proskauer Rose;" otherwise been produced, the defendants are not entitled to
them."
"all correspondence or other writings, whether in hard copy or electronic form, concerning any "claw back" based on an assertion of any privilege "To the extent responsive correspondence or other writings of material that has been provided to you (you advised Justice Stolz on exist, the defendants are not entitled to them." May 13,2014 that certain material that had been produced was retrieved from its source based on an assertion of privilege );" "all Compensation Committee records, including but not limited to spreadsheets "To the extent responsive records exist and have not showing compensation;" otherwise been produced, the defendants are not entitled to
them at this time."
"all Operations Committee agendas and follow-up emails from the Operations "To the extent responsive records exist and have not Committee;" otherwise been produced, the defendants are not entitled to
them at this time."
"a complete set of the Executive Committee minutes;" "To the extent responsive minutes exist and have not otherwise been produced, the defendants are not entitled to them at this time."
"all agendas, minutes, materials, recordings, and follow-up memoranda related to each Executive Strategic Weekend session (typically, three "To the extent responsive records exist and have not
6
Defendants' Discovery Requests and District Attorney's Reponses
days of meetings and planning for the year, sometimes held in March or otherwise been produced, the defendants are not entitled to April);" them at this time." "all agendas, minutes, materials, recordings, and follow-up memoranda related to each Executive Strategic Weekend session (typically, three "To the extent responsive records exist and have not days of meetings and planning for the year, sometimes held in March or otherwise been produced, the defendants are not entitled to April);" them at this time." "all materials concerning any compensation (regardless of source) that was received by Francis Canellas, Jyhjing Harrington, Ilya Alter, Lourdes "To the extent responsive materials exist and have not Rodriguez, David Rodriguez, Dianne Cascino or Thomas Mullikin otherwise been produced, the defendants are not entitled to during the period that each of them was employed by Dewey & LeBoeuf them at this time." or as a result of their employment at Dewey & LeBoeuf."
Request for a BiU of Particulars (May 28, 2014) Response to Discovery Letter (June 13,2014) 1 (a-c): Describe the substance of each Defendant's conduct encompassed by each offense charged (including descriptions of each Defendant's Defendants are not entitled to any other acts/omissions or fraudulent entries, the date place and time, and the identity of information beyond what has been provided in the others who participated in the act/omission. indictment; the VDF; the Plea and Cooperation
Agreements of the seven cooperators; the Statement of Facts; and the Disclosures - Falsifying Business Records Counts, served in court on all counsel on April 21, 2014.
2 (a-b): State whether the People intend to prove that the particular Defendant acted as a principal, accomplice or both. (If charged as either "The defendants acted as both principals and principal or accomplice state either who aided and abetted the Defendant, or accomplices with respect to the counts in which they who the Defendant aided and abetted.) are charged."
No response to other questions
3(a): With respect to the allegation in Count One of the Indictment that "the Schemers lied to and otherwise misled the Firm's partners and auditors, as well Defendants are not entitled to any other
7
Defendants' Discovery Requests and District Attorney's Reponses
as others," specify: information beyond what has been provided in the indictment; the VDF; the Plea and Cooperation
"The identity of each auditor to whom any Defendant allegedly lied, the identity Agreements of the seven cooperators; the Statement of of the Defendant(s) who allegedly lied, the date on which each alleged lie Facts; and the Disclosures - Falsifying Business occurred and the substance of each alleged lie;" Records Counts, served in court on all counsel on 3(b): "The identity of each auditor any Defendant allegedly misled, the identity April 21, 2014. of the Defendant(s) who allegedly misled that auditor, the date on which each alleged misleading statement occurred and the substance of each alleged misleading statement;" 3(c): "The identity of each partner to whom any Defendant allegedly lied, the identity of the Defendant(s) who allegedly lied, the date on which each alleged lie occurred and the substance of each alleged lie;" 3( d): "The identity of each partner any Defendant misled, the identity of the Defendant(s) who misled that auditor, the date on which each act of misleading occurred and the substance of each misleading statement;" 3(e): "The identity of each of the "others" to whom any Defendant lied, the identity of the Defendant( s) who lied, the date on which each lie occurred, and the substance of each lie;" 3(1): "The identity of each of the "others" any Defendant misled, the identity of the Defendant(s) who misled that "other", the date on which each act of misleading occurred and the substance of each misleading statement." 4 (a-g): "With respect to the allegation in Count One ofthe Indictment that 'The Schemers, themselves or working through others, withheld information and affirmatively concealed the Scheme when they were questioned by partners, including members ofthe Firm's Executive Committee, auditors, or others' specify for each such occurrence: (a) its date; (b) the identity of the partner; (c) the identity of the auditor; (d) the identity of the 'other' questioner; (e) the substance of the information; (f) whether it was withheld or affirmatively concealed; and (g) the identity of the Defendant or the 'other' through whom the Defendant allegedly worked." 5(a): "With respect to the allegation in Count One of the Indictment concerning the Private Placement that 'the Schemers provided potential investors and lenders with financial statements that falsely represented, among other things,
8
Defendants' Discovery Requests and District Attorney's Reponses
that the firm had complied with its covenants,' set forth for each Defendant:"
"each date on which he allegedly engaged in such conduct;" S(b): "for each date, the identity of each investor entity to which he allegedly provided false statements;" S( c): "for each date, the identity of each individual at each investor entity who allegedly received the false statements;" Sed): "for each date, the identity of each lender entity to which he allegedly provided the false statements;" S( e): "for each date, the identity of each individual at each lender entity who received the allegedly false statements;" Set): "for each date, whether each Defendant engaged in such conduct personally or through another or others, and if through another or others, identify each such individual." 6(a): "With respect to the allegation in Count One of the Indictment concerning the Private Placement that "the Schemers provided potential investors with an offering memorandum that contained numerous misstatements," set forth for each Defendant:
each date on which he allegedly engaged in such conduct;" 6(b): "for each date, the identity of each investor entity to which he allegedly provided the offering memorandum;" 6( c): "for each date, the identity of each individual at each investor entity who allegedly received the offering memorandum;" 6( d): "for each date, whether each Defendant allegedly engaged in such conduct personally or through another or others, and if through another or others, identify each such individuaL" 7: "With respect to the allegations in Count One of the Indictment concerning bankruptcy, the substance of each Defendant's conduct that allegedly caused the bankruptcy." 8: With respect to the allegations in Count One ofthe Indictment concerning bankruptcy, the factual information that the People intend to prove at trial about the bankru£tcy and its causes.
9
Defendants' Discovery Requests and District Attorney's Reponses
9: With respect to the allegations in Count One of the Indictment concerning job loss as a result of the bankruptcy, the substance of each Defendant's conduct that allegedly caused the job loss. 10: With respect to the allegations in Count One of the Indictment concerning job loss as a result of the bankruptcy, the factual information that the People intend to prove at trial about the job loss and its causes. 11: With respect to the allegations in Count One of the Indictment concerning creditors' losses as a result of the bankruptcy, the substance of each Defendant's conduct that allegedly caused the creditors' losses. 12: With respect to the allegations in Count One of the indictment concerning creditors' losses as a result ofthe bankruptcy, the factual information that the People intend to prove at trial about the creditors' losses and their causes. 13: With respect to the references in Count One of the Indictment to" Schemers," specify for each use of the term "Schemers" whether the People allege that each of the Defendants was one of the individuals identified as the "Schemers. " 14: "With respect to each instance of' grand larceny' alleged, as recited in Counts Two through Sixteen in the Indictment, specify: 'Intent.'" (see Bill of Particulars, p.6-7, for full definition). 15: "With respect to each instance of 'grand larceny' alleged, as recited in Counts Two through Sixteen in the Indictment, specify: 'Means.'" (see Bill of Particulars, p.8-9, for full definition). 16(a) : With respect to each instance of 'falsifying business records' alleged, as recited in Counts Seventeen through One Hundred and Four in the Indictment, specify:
"what aspect of each entry (identified in the People's Voluntary Disclosure Form) in the business records of each specified enterprise (identified in the Indictment) was allegedly false;" 16(b): "whether each ofthe Defendants made each allegedly false entry in the business records of each specified ente!}lrise;" 16(c): "whether each of the Defendants caused each allegedly false entry in the
10
Defendants' Discovery Requests and District Attorney's Reponses
business records of each specified enterprise to be made (and, if so, who made the entry);" 16(d): "whether each of the Defendants made or caused each alleged false entry in the business records of each specified enterprise with the intent to commit another crime (and, if so, what crime(s));" 16(e): "whether each of the Defendants made or caused each alleged false entry in the business records of each specified enterprise with the intent to conceal the commission of another crime (and, if so, what crime(s));" 16(1): "for each allegedly false entry in the records of each specified enterprise, what condition or activity of that enterprise is evidenced or reflected by the record." 17: "With respect to the Conspiracy charged in Count One Hundred And Six of the indictment, identify Employee C (Overt Acts 3, 7, 9, 13, 16,26,28,30,31 , 32,37,47,50,51 ,52), Partner F (Overt Act 10, Overt Act 21), Employee D (Overt Acts 11, 12, 14, 16, 17, 18), Employee E (Overt Acts 12, 13, 15), Partner B (Overt Acts 20, 26), Partner C (Overt Act 20), Employee A (Overt Act 21), Employee N (Overt Act 31), and Employee G (Overt Acts 50, 51 , 52). 'others: ,,, 18(a): Identify the following individuals referred to in the Indictment as 'others':
The 'others at the Firm' who allegedly 'engaged in a scheme (the 'Scheme') to defraud the Firm's lenders' (collectively dubbed the 'Schemers')." 18(b): "The 'others' (apart from "the Firm's lenders") whom the 'Schemers' allegedly defrauded. 18(c): "The 'others' (apart from the 'Firm's partners and auditors') who the 'Schemers' allegedly "lied to and otherwise misled" to 'ensure the success of the Scheme. ", 18(d): "The 'others' through whom the 'Schemers' allegedly worked to withhold information and conceal the scheme." 19: "State who "created a document ... called the 'Master Plan"', when it was created, .who received it, and who had knowledge of its existence."
~(a)-="Icientify the following alleged actions, events or things described in the
11
Defendants' Discovery Requests and District Attorney's Reponses
Indictment only as 'other"':
The 'other fraudulent adjustments' (apart from those allegedly described in the document called the "Master Plan") and 'other fraudulent Conduct' the "Schemers" allegedly engaged in from 2008 through 2012" 20(b): "The "other[]" allegedly "fraudulent accounting entries" (apart from 'those described above' in the Indictment) made in February 2009 to 11 enable the Firm to report to its lenders that it had satisfied the Cash Flow Covenant at year-end 2008" 20(c): The "other covenants" (apart from the Cash Flow Covenant) with which the Defendants allegedly misrepresented compliance." 20(d): "The "other fraudulent activities ... engaged in, among other things, to conceal the Firm's breach of several of its covenants," who allegedly engaged in such "other fraudulent activities," and the dates and times of the acts or omissions alleged to constitute such "other fraudulent activities." 20(e): "The "other things" (apart from "misrepresent[ing] the Firm's financial condition and practices to potential investors and lenders") the "Schemers" allegedly did or omitted to do to obtain financing through the private placement and revolving line of credit in April 2010." 20(i): "The 'other things' (apart from "that the Firm had complied with its covenants") that the "Schemers" allegedly falsely represented in financial statements provided to potential investors and lenders in connection with the April 20 1 0 private placement and revolving line of credit." 20(g): "The other misstatements (apart from "purport[ing] to disclose all the Firm's debt;" "stat[ing], in substance, that departing partners received their capital during the three years following their departure from the Firm;" and "stat[ing], in substance, that' [ c ]lient disbursement receivables are written-off when deemed uncollectible"') allegedly contained in the offering memorandum provided to potential investors in the private placement." 21: For each write-off allegedly reversed "improperly," specify (a) the write-off allegedly reversed, (b) the person(s) who allegedly reversed it, (c) the date and time the write-off was allegedly reversed, (d) what was allegedly "improper" about the reversal, (e) the value of the write-off allegedly reversed, (f) who
12
Defendants' Discovery Requests and District Attorney's Reponses
allegedly ordered that the write-off be reversed, and (g) who allegedly made the fraudulent entry. 22: For each disbursement payment allegedly reclassified "improperly," specify (a) the disbursement payment allegedly reclassified, (b) the person(s) who allegedly reclassified it, ( c) the date and time the disbursement payment was allegedly reclassified, (d) what was allegedly "improper" about the reclassification, (e) the value of the disbursement allegedly reclassified, (f) who allegedly ordered that the disbursement be reclassified, and (g) who allegedly made the fraudulent entry. 23: For the alleged $24 million write-off of charges to an American Express card described in the Indictment, specify (a) the person(s) who allegedly wrote off the charges, (b) when the charges were allegedly written off, (c) the person(s) who allegedly reversed the write-off, (d) when the write-off was allegedly reversed, (e) what was allegedly "fraudulent" about the reversal of the write off, and (f) the facts alleged to support the statement that the charges "were not chargeable to clients." 24: For the "compensation paid to, and amortization of business related to, two salaried, non-equity partners" allegedly "improperly reclassified" as equity partner compensation, specify (a) the "two salaried, non-equity partners," (b) the "[ s ]imilar amounts" allegedly previously treated as expenses on the Firm's financial statements, (c) the person(s) who allegedly treated such "[s]imilar amounts" as expenses on the Firm's financial statements, (d) the dates and times such "[s]imilar amounts were allegedly treated as expenses on the Firm's financial statements, and (e) what was allegedly "improper" about the reclassification. 25: With respect to the "backdated checks" allegedly sought from clients, specify (a) the person(s) who allegedly sought "backdated checks," (b) the dates and times suchperson(s) allegedly sought "backdated checks," (c) the client(s) from whom such person(s) allegedly sought "backdated checks," (d) the person(s) who allegedly "engaged in efforts to hide the date on which the checks were received," ( e) the dates and times such persons "engaged in efforts to hide the date on which the checks were received," and (f) the act(s) or omission(s) that constituted "efforts to hide the date on which the checks were
13
Defendants' Discovery Requests and District Attorney's Reponses
received." 26: With respect to the "more than $1 million that had been contributed by a partner to satisfy his capital requirement," specify (a) the partner who allegedly contributed the more than $1 million, (b) the person(s) who allegedly applied the funds "as a fee payment for the client of a different partner," (c) the "client" and "different partner" for whom the funds were allegedly applied as a fee payment, (d) the date and time the funds were allegedly applied as a fee payment, (e) the person(s) who allegedly "backed out" the funds from fees and applied them to the partner's capital account during 2010, (f) the date and time the funds were allegedly "backed out" from fees and applied to the partner's capital account during 2010," (g) the person(s) who allegedly applied the funds "as a fee payment for the same client" for yearend 2010, and (h) the date and time the funds were allegedly applied "as a fee payment for the same client" for year-end 2010. 27: For the $24 million in bank loans that allegedly benefitted Mr. DiCarmine and Mr. Sanders, specify (a) Mr. Sanders' and Mr. DiCarmine's act(s) or omission(s) that constituted "structur[ing] the transaction so the loan repayment would increase the Firm's revenue for 2011," and (b) which, if any, of such acts or omissions are alleged to be fraudulent, improper or unlawful. 28: Specify what debt the offering memorandum allegedly failed to disclose. 29: With respect to the client disbursement receivables "deemed uncollectible and written-off during 2008," specify (a) the client disbursement receivables that were "deemed uncollectible and written-off during 2008," (b) the person( s) who deemed the client disbursement receivables uncollectible, (c) the date and time such receivables were deemed uncollectible," (d) the person(s) who wrote off the client disbursement receivables during 2008, (e) the date and time such receivables were written off during 2008, (f) the person(s) who budgeted those amounts "to be written off in 2009 instead," and (g) the date and time such amounts were "budgeted to be written off in 2009 instead." 30: With respect to the "[m]illions of dollars worth of client disbursement receivable write-offs" allegedly "reversed for year-end 2009," specify (a) the particular client disbursement write-offs allegedly reversed for year-end 2009, (b) the person(s) who allegedly wrote off those disbursements, (c) the date and
14
Defendants' Discovery Requests and District Attorney's Reponses
time those disbursements were allegedly written off, (d) the person(s) who allegedly reversed the client disbursement write-offs for year-end 2009, (e) the date and time those write-offs were allegedly reversed, and (f) which, if any, of the reversals of write-offs are alleged to be fraudulent, improper or unlawful.
15
APPENDIXG
DtSTRICTATTORNEY OFTHE
COU~TYQf'NgW YORK Ol\lEHQ§/lNPLACE NewYorKN. Y.10013
(21~p35.9000
CYRUS R. VANCE,-JR. DISTRIOT AnORNE.Y
April 21, 2014
BvHand . El.ka.n Abramowitz, Esq. MOi'villo Abramowitz Grand lason & Anello PC 565 Fifth Avenue, New York, New Yotk 10017
Re: People y. Davis. DICatrnine, Sanders, and Warren" ln~. 773/2014
Dear Elkan:
Enclosed is a compact disc containing documents related to the First Degree Falsifying Business Records counts in which your client was charged in the abovereferenced indictment. Documents in the following Bates ranges are included:
Count 17: Bates Range NYDA-OOOOOOl through NYDA-0000036 Count 18: Bates RangeNYDA-0000037 through NYDA-0000074 Count 19: Bates Range NYDA-000007S through NYDA-0000096 Count 20: Bates Range NYDA-0000097 through NYDA-0000105 Count 21: Bates Range NYDA-0000106 through NYDA-0000108 Count 22: Bates Range NYDA-0000109 Count 23: Bates Range NYDA-0000110 Count 24: Bates Range NYDA-0000111 through NYDA-0000165 Count 25: Bates Range NYDA-0000166 through NYDA-0000341 Count 26: Bates Range NYDJ\-0000342 through NYDA-0000369 Count 27: Bates Range NYDA-0000370 through NYDA-0000372 Count 28: Bates Range NYDA-0000373 through NYDA-0000377 Count 29: Bates Range NYDA-0000378 Count 30: Bates Range NYDA-0000379 through NYDA-0000381 Count 31: Bates Range NYDA-0000382 Count 32: Bates Range Nl'DA-0000383 Count 33: Bates IUmge NYDA-0000384 through NYDA-0000386 Count 34: Bates Range NYDA-0000387 through NYDA-000044S Count 35: Bates Range NYDA-0000446 Count 36: Bates Range NYDA-0000447 through NYDA-0000502 Count 37: Bates Range NYDA-OOOOS03 tlu'ough NYDA-OOOOS33
Elkan Abramowitz, Esq. April 21, 2014 Page 2
Count 38: Bates Range NYDA-0000534 through NYDA-0000S44 Count 39: Bates Range NYDA-0000545 through NYDA-0000558 Count 40: Bates Range NYDA-0000559 through NYDA-0000579 Count 41: Bates Range NYDA-0000580 through NYDA-0000593 Count 42: Bates Range NYDA-0000594 through NYDA-0000610 Count 43: Bates Range NYDA-0000611 through NYDA-0000631 Count 44: Bates Range NYDA-0000632 through NYDA-0000634 Count 45: Bates Range NYDA-OOOQ635 Count 46: Bates Range NYDA-0000636 Coont 47: Bates Range NYDA-0000637 Count48: Bates Range NYDA-0000638 Count 49: Bates Range NYDA-0000639 through NYDA-0000670 Count 50: Bates Range NYDA-0000671 through NYDA-0000674 Count 62: Bates Range NYDA-00021S4 through NYDA-0002178 Count 63: Bates Range NYDA-0002179 through NYDA-0002206 Count 64: Bates Range NYDA-0002207 through NYDA-0002326 Count 65: Bates Range NYDA-0002327 through NYDA-0002342 Count 66: Bates Range NYDA-0002343 through NYDA-0002364 Count 67: Bates Range NYDA-0002365 thtough NYDA-0002386 Count 68: Bates Range NYDA-0002387 through NYDA-0002389 Count 69: Bates Range NYDA-0002390 through NYDA-0002410 Count 70: Bates Range NYDA-0002411 Count 71: Bates Range NYDA-0002412 through NYDA-0002427 Count 72: Bates Range NYDA-0002428 through NYDA-0002435 Count 73: Bates Range NYDA-0002436 through NYDA-0002441 Count 74: Bates Range NYDA-0002442 through NYDA-0002447
Additionally, enclosed please find a chart that collects particulars regarding all First Degree Falsifying Business Records counts contained in indictments 5393/2013 and 773/2014. This infonnation was Gontained in the indictments or was previously disclosed voluntatily.
Peirce R. Moser Assistant District Attorney
EncIs.
cc: Han. Robert M. Stolz (w / out compact disc end.)
Count Ind. 773/2014
(Ind. 5393/2013)
17 (6)
18 (5)
19 (1)
20
21
22 (3)
23 (4)
24
25
26
27
Disclosures - Falsifying Business Records Counts People v. Davis, DiCarmine, Sanders, and Warren, Ind. 773/2014 and
People v. Warren, (Ind. 5393/2013)
Date or Range (on or around) from Ind.?73/2014 (Ind. Enterprise Disclosure
5393/2013)
January 8, 2009 (December 30,2008 to January 8, Dewey & LeBoeuf ILP
Reversing disbursement write-offs, Elite
2009) batch GJ743484
January 5, 2009 (Decembc.t: 30,2008 to January 5, Dewey & LeBoeuf LLP
Reclassifying disbursement payments, Elite
2009) batch GJ7360Z6
January 2,2009 (December 30, Z008 to January 2, Dewey & LeBoeufLLP
Reclassifying disbursement .retainer; Elite
2009) , , batch GJ731207
Januarv 12, 2009 Dewey & LeBoeuf LLP Great British Pound exchange rate
January 9, 2009 Dewey & LeBoeuf LLP Reversing credit card write-offs, Elite batch GT745102 '
January 5, 2009 (December 30, 2008 to Janua.ry 5, Dewey & LeBoeuf LLP
One London Wall reverse premium, Elite
2009) , batch VHOI0509NY, Entry 11276
January 5, Z009 (December 30, 2008 to Janua.ry 5, Dewey & LeBoeuf LLP
Austiri lease termination fee, Elite batch
2009) VH010509NY, Entry 11278
January 4,2010 Dewey & LeBoeuf LLP Reversing disbursement write-offs for account 6305, Elite batch GJ1217198
January 13, 2010 Dewey & LeBoeuf LLP Reversing disbursement write-offs for account 6300, Elite batch GJ1228984
January 13, 2010 Dewey & LeBoeuf LLP Reclassifying disbursement payments, Elite batch GT1229843
January 13, 2010 Dewey & LeBoeuf LLP Fictitious client payment, Elite batch GT1223810
Count .. Ind~ 773/2014
(hid. 5393/2013)
28
29 ~.
30 31 32
33
34
35
36
37
38
39
40
41
Falsifying Business Records Counts Disclosures People v. Davis. DiCarmme, Sanders. and Warren, Ind. 773/2014 and
People v. Warren, (Ind. 5393/2(13)
Date or Range (on or around) from. Ind. 773/2014 (Ind. Enterprise Disclosure
5393/2013)
Janual:Y 13,2010 Dewey & LeBoeufLLP Applying paxtoe! capital as fee revenue, Elite batch GT1229772
January 7, 2010 Dewey & LeBoeuf LLP Apply.ing partner capital loans to increase net income, Elite batch GT1225()~L __ ..........
December 2009 to T anuarv 2010 Dewey & LeBoeufILP Backdated check -~
December 2009 to Tanuary 2010 Dewey & LeBoeuf ILP Payroll checks, Elite batch NB123109VD December 2009 to Tanuary 2010 Dewey & LeBoeufLLP Vendol: checks, Elite batch LR1231 09BB
January 11, 2010 Dewey & LeBoeufILP Reclassifying payments as return. of capital, Elite batchBN01112010A
..
January 13, 2010 Dewey & LeBoeuf ILP Reversing credit card write-offs, Elite batch GJ1228984
December 2010 to January 2011 Dewey & LeBoeufILP Rev'ersingwrite-off, Elite batch NB123110HA
January 11, 2011 Dewey & LeBoeufLLP Reversing disbursement write-offs fot account 6300, Elite batch GT1676141
January 10, 2011 Dewey & LeBoeufILP Reclassifying disbursement payments, Elite batch GT1675648
January 10,2011 De,,-ey & LeBoeufILP Reclassifying disbursement payments, Elite batch GT1675749
January 10,2011 Dewey & LeBoeufllP Reclassifying disbursement payments, Elite batch GJ1675756
January 10~ 2011 Dewey & LeBoeuf ILP Reclassifying disbursement payments, Elite batch GT1675766
Januru:y 10, 2011 Dewey & LeBoeuf UP Reclassifying disbursement payments, Elite batch GT1675772
2
Count Ind.. 773/2014
(Ind. 5393/2(13)
42
43
44
45
46
47
48
49
50
51 52 S3 54 55 56 57 58
Falsifying Business Records Counts Disclosures People v. Davis, DiCarmine, Sanders. and Warn':n, Ind. 773/2014 and
People v. Warren, (Ind. 5393/2013)
Date or Range (on or around) from Ind.. 773/2014 (Ind. Enterprise Disclosure
5393/2013)
January 10,2011 Dewey & LeBoeufLLP Reclassify1ng disbursement payments, Elite batch GJ1675773
Januaty 10, 2011 Dewey & LeBoeufLLP Reclassifying disbursement payments, Elite batch GJ1675782
January 14, 2011 Dewey & LeBoeuf UP Reclassifying payments as return of capital, Elite batch BN12312010M
February 14, 2011 Dewey & LeBoeuf UP Reclassifying payments to defendant Davis as return of capital, Elite batch DR12312010R
December 30, 2010 Dewey & LeBoeuf LLP Reclassifying bonus payments, Elite batch
~ VH12302010NY
February 2, 2011 Dewey & LeBoeuf UP Reclassifylng foreign payroll, Elite batch MD0202Z011NY
February 10,2011 Dewey & LeBoeufLLP United Kingdom tax refund, Elite batch AC123110LO
November 15, 2010 Dewey & LeBoeufLLP Reversing credit card write-offs, Elite batch GJ1604528
January 11, 2011 Dewey & LeBoeuf LLP Applying partner capital as fee tev-enue, Elite batch GJ1676215
J\.l:a:t:ch 31, 2011 to AprilS, 2011 Dewey & LeBoeufLLP Invoice #576585 March 31, 2011 to AprilS, 2011 Dewey & LeBoeuf LLP Invoice #581530 March 31,'2011 to AprilS, 2011 Dewey & LeBoeufLLP Invoice #587072 March 31, 2011 to AprilS, 2011 Dewey & LeBoeuf UP Invoice #563957 March 31, 2011 to April 5, 2011 Dewey & LeBoeuf UP Invoice #618140 March 31, 2011 to AprilS, 2011 Dewer & LeBoeuf ILP In-mice #2008419 March 31, 2011 to AprilS. 2011 Dewey & LeBoeuf UP Invoice #618131 March 31, 2011 to AprilS, 2011 Dewey & LeBoeufLLP Invoice #618134
3
•
I I
Count Ind. 773/2014
and. 5393/2013)
59 60 61
62
63
64
65
66
67
68
69
70
71
72 73 74
Falsifying Business Records Counts Disclosures People v. Davis,DiCarmine. Sanders, and Warren, Ind. 773/2014 and
People v. Warren, (Ind. 5393/2013)
Date or R~e,(on or around) from Iria. 773/2014 (Ind. Enterprise Disclosure
5393/2013)
March 31, 2011 to AprilS, 2011 Dewey & LeBoeufllP Im;-oice #618115 March 31, 2011 to April 5, 2011 Dewey & LeBoeuf ILP Invoice #618132 Match 31, 2011 to April 5, 2011 Dewey & LeBoeufILP Invoice #618129
November 8, 2011 Dewey & LeBoeufILP Reversing disbursement w:tite-offs for. account 6305, Elite batch GT2055340
January 10, 2012 Dewey & LeBoeuf ILP Reversing disbursement write-offs for account 6305, Elite batch GT2135208
January 10, 2012 Dewey & LeBoeufILP Reversing disbursement write-offs for account 6300, Elite batch GT2135788
January 10, 2012 -- Revetsing disbursement write-offs for
Dewey & LeBoeuf liP account 6300, Elite batch GT2135874
January 10, 2012 Dewey & LeBoeufILP Reclassifying disbursement payments, Elite batch GT2135854
January 10,2012 Dewey & LeBoeuf UP Reclassifying disbursement payments, Elite batch GT2135871
December 28, 2011 Dewey & LeBoeufILP Reclassifying payments as return of capital, Elite batch BN12282011
January 5,2012 Dewey & LeBoeuf LLP Reversing credit card write-ofEs, Elite batch GT2131274
January 17, 2012 Dewey & LeBoeuf ILP Reclassifying foreign payroll, Elite batch \lH01172012
December 2011 to Januaty 2012 Dewey & LeBoeuf LLP Applying loan repayments as revenue, Elite batch MDYE1211A
June 25, 2009 Emst & Young LLP 1fanagement representations letter Tune 18, 2010 Ernst & Young LLP 1-fanagement representations lettet
Tune 28, 2011 Emst & Y-01ll:lg_LLP ... Managetllent representations letter ------- -
4
Count Ind. 173/2014
(Ina 5393/2013)
75 76 77 78 r------79 80 81 82 83 84 85 86 87 88 89 90 91
92
93 94
95 I
96
Falsifying Business Records Counts Disclosures People v. Davis, DiCarmine, Sanders, and Warren, Ind. 773/2014 and
People v. Warren, (Ind. 5393/2013)
Date or Range (on or around) from Ina 773/2014 (Ind. Enterprise Disclosure
5393/2013)
June 25, 2009 Dewey & LeBoeuf UP Audited 2008 financial statements Tune 18, 2010 Dewey & LeBoeuf UP Audited 2009 financial statements Tune 28, 2011 Dewey & LeBoeuf UP Audited 2010 financial statements February 17,2009 TPMorga.n Chase Bank, N.A. Year-end 2008 cotupliance certificate February 19, 2010 JPMor~ Chase Bank, N.A. Year-end 2009 compliance certificate February 14, 2011 TPMorgan Chase Bank, NA. Year-end 2010 compliance certificate February 14, 2012 jPMotgan Chase Bank, N .A. Year-end 2011 compliance certificate Februaxy 17, 2009 Citibank, N.A. Year-end 2008 compliance certificate Februa.ry 19, 2010 Citibank, N .A. Year-end 2009 compliance certificate Febthary 14, 2011 Citibank, N.A. Year-end 2010 compliance certificate Feb:ntary 14, 2012 Citibank, N.A. Year7end 2011 compliance certificate February 17, 2009 Barclays Bank PLC Year-end 2008 compliance certificate Februaxy 19, 2010 Barclays Bank PLC Year-end 2009 compliance certi6.cate Februaxy 17, 2009 Wells Fargo Bank, N.A. Year-end 2008 compliance certificate February 19, 2010 Wells Fargo Bank, N.A. Year-end 2009 compliance certificate February 14, 2011 Bank of America, N.A. Year-end 2010 compliance certificate Februaty 14; 2012 Bank of America, NA. Yeat-end 2011 compliance certificate
February 14,2012 HSBC Bank USA, National
Year-end 2011 compliance cetti6.ca te Association
February 14,2011 lillianceBemsteio. LP Yeat-end 2010 compliance certificate February 14, 2012 AllianceBemsteio. LP Year-end 2011 compliance certificate
F ebroary 14, 20.11 Hartford Investment Management
Year-end 2010 compliance certificate Company
February 14, 2012 Hartford Investment 1:Ianagement
Year-end 2011 compliance certificate Company
----- - - --------
5
Count Ind;i773/2014
(Ind. 5393/2013)
97
98
99 100
101
102
103
104
Falsifying Business Records Counts Disclosures People v. Davis. DiCarmine, Sanders, and Warren, Ind. 773/2014 and
People v. Warren, (Ind. 5393/2013)
Date or: Range (on or arOlmd) from Ind. 773/2014 (Ind. Entetprise Disclosure
5393/2013)
February 14, 2011 Aegon USA Investment Year-end 2010 compliance certificate Management, ILC
Feb.rwu:y 14,2012 Aegon USA Investment Year-end 2011 compliance certificate
, ... 1fanagement, ILC February 14,2011 Members Capital Advisors, Inc. Year-end 2010 compliance certificate February 14, 2o.t2 Members Capital Advisors, Inc. Year-end 2011 compliance certificate
February 14, 2011 Avi~a Investors North America,
Year-end 2010 compliance certificate Inc.
February 14, 2012 A viva Investo.rs N otth America,
Year-end 2011 compliance certificate . ' Inc .
Februaty 14,2012 Pan-American Life Insurance
Year-end 2011 compliance certificate Company February 14, 2011 Sentinel Asset Man~ent, Inc. Year-end 2010 compliance certificate
6
'~~-------------Gene~al Journal Headef'
Entry 10: IELl J~ Model EnhylO:
Batch 10: iGJ743484 T ran.action Dale: 11213112008
Gl T!Jpe 'f,~~jl~~:W~},~'/}} ~HXi!~(~r.~H~·~~g'~ni;~· -- r ,b.ul,ornaIIC R€\'el::"~1
CU:I?nC~I.r l:()t1PI'~fjJl)iNt~:i~Sl:MJ;i':V~IT~I.~!;l;f,)~l~t:J C"Heney Date: J07;iO~-Rl?p!:If~I/l9 C1.lfIeru;'!.I, I .....:J .:ipol Hale;
Company:
Descriplion:
j;' Show LoC<>! Narrative r Show Consoldation Narrative
Account ,Lo"", Nan.live Debit I C.edit I Cwrency Dale I 1m 1m 01 1211 000 00000 0000000 Unbilled Costs 220.30 07/1012008
2 101 1m 01 1211 000 00000 0000000 Unbilled Costs 22U20 0711012008 ""31m Hn 01 1211 000 00000 0000000 UnbllledCosts 308.738.48 121051200B
4 101 101 Ul 1571 IJIJO IJIJOIJlJ 0000000 Intercompary 30.979.12'1210512008 -5- 1m 101 01 1576 000 00000 IJIJOOOOO Intercompary 7.12 UBl311200B ---6' 101 1m OJ 1588 IJIJO IJIJOOO IJIJOOooo Intercompary 119.956.8912105/2008
7 1m 101 01 1589 IJIJO O[)IJIJQ 000[)IJIJQ Inletcompary 157.B02.471210512OOB -9- 101 1 m 01' 1590 IJIJO 00000 01JlJOO00 Intetcompary 220.30 07/10/2008
9 1m 1m m 1590 "000 00000 OOO[)IJIJQ Inlercompary 22U30,U7/1Oizooa "10" 1m 1m 30 1211 000 00000 00000oo UnbRiedCosts 7.1208/31/2008 '11 202 '21515 1570 000 00000 0000000 InlOlcompary 30.979,12; 121051200B '12- 202 "215 15 6300 007 00000 0000000 CostoWnllenOo,,", 30.979.12: 12105/200B -{3" 203 :261 ,61 1211 000 000004181000 UnbilledCosts 2.40,10/15/2008 ""'i4 203261 61 ,1211 000 00000 4181000 Unbllled Costs 1.701W31izooa 15- 203 '261 61 1570 000 00000 ,4510010 Inlercompanv 7.12, UBl31 12008 ",'S' 203 261 S1 6300 007 00000 ,62BS100 CoslsWn'ttenDown 2.40 ,10/1512OOB "'17- 203261b16300 00700000 :6288100 CoslsWritlenDown 1.7010131/2008 -18 203 :261 ,bI :6300 ,030 00000 ,,62BS1oo Cosl.W,illenDown 7.12, UBl31i2008 '19- 207 :2n "22':6300 ,,012 '00000 1JIJOO000 'CoslsWrittenDown 44,311.18jl2105/2OOB -'20" 207 : 2n '. 23 '1570 000 00000 : 0000000 ' Inlercompanv 119,956.89 ,12105/2OOB - 21 207 : 2n :. 23 6300 : 012 : 00000: 0000000 Cosls Written Down 55.365.311.12/05/2OOB
22 207 '2n 23 '6300 ,067 00000 0000000 'CostsWrilienDown 20.280AO'12105!2008 '23' 208 "200:24:1211 '00000000 ,0000000 UnbmedCosts 7.60 '05/2912000 ':'
'24208 ,280 :24:;1570 '.00000000 0000000 :lnlercompOl'l' 157,902.47, jlzi05i2000 25 208 '280 ':24 :6300 '050 ',00000 ,0000000 'CoslsWritlenDo",n 7.60;06128i2008
_.26 208'280 )4, 6300055 ,00000 ;0000000 CoslsWriUenOol'm_, 157.B02.47;12105/2008 27 209': 290 04 1211 : 000 ,00000 '0000000 T ,arrsaclion 270 0.85: 12117/2008
2s 209 '290 :,04 .1211, ::000 ·00000;0000000T"n."c60n270 0.8~:12/1,7i2008 29 209 '290 041211 ,00000000 ,:0000000 UnbrlledCosts 5.52:10106/2008 30 ,209',290 .04 :1211:000 :00000;0000000 UnbiHedc:osts 39.59;11/0312008 31 209. ' 290 ,04 !1211;OOO :00000 10000000 UnbitiedCosts 47.83,11/10/2008
..lL 209 :'290,04 ,1211,000,00000 ,!0000000 UnbllIedCosts 40.88i11/13/2008 33 209 :,!290 ,,04 ;12'1, ,;000 ,,00000 tlOoooOOO, UnbllIedCosts ,,40.37:11/1812008
..lL 209 ,'290 .. 04 :1211 .:000 ;jOOOOO!Ooo[)IJIJQ UnbllIedCosts 38.45;11119/2009 35 209 ,'290 :,04 :1211 :000 iQOooo :IOOOOOOOUnbilledCosts .lL21:1l/20~200~
.2L 209 "290 ,,04 ,121',000 100000 'iOOO[)IJIJQ UnbiUedCosts R75il112412008
.2L 209 :290 ,;04 ,1211 :,000 ,00000 ;iOoooooo UnbllledCosts , .. 3,46Jl.1J251200B 38 209 '290 ,,04 :1211 ,:000 :O[)IJIJQ ::0000000 UnbllledCosts 39.86:1210112008
39" 209 290 ,'04 :1211 ::000 10[)IJIJQ ::0000000 Unbrlledc:"sts 35.3S'1ziosizoOB -'4'0209' 290 ,'04;12111000 :oomio :;0000000 U~lledCosts UB5i12117i200s
41 209' 290 :;04:12;'" :;000 I'ooooo;:iloootiriti i.fnbllledGostsaliiiiiviaizoos'l ' ,
41
Account Company Location Primary Department Timekeeper local Local Narrative Consolidation Narrative Employee Debit
101 101 1 1211 0 0 o Unbilled Costs Unbilled Costs 220.30
101 101 1 1211 0 0 o Unbilled Costs Unbilled Costs
101 101 1 1211 0 0 o Unbilled Costs Unbilled Costs Intercompany
Intercompany
Intercompany Intercompany
Intercompany Intercompany
Unbilled Costs
101 101 101 101 101 101
101 202
202 2.03 203
203 203 203
203 207
207 207
207 2.08 208 208
2.08 209
209 209
209 209
209 209
209
209 209
209 209 209
209
209
209 209
209 209 209 209
209 Z09
101 101 101 101
101
101 101
215
215 261 261 261 261 261 261 271
271 271 271 280 280 280
280 290
290 290
290 290
290 290
290 290
290
290 290
290
290 290
290 290
290 290
290 290
290 290
1
1 1 1
1 1
30 15
15 61 61 61 61 61 61
22 23 23
23 24 24 24
24 4
4 4 4
4
4 It
4 4
4
4
4
4
It
4
4
1571 1576 1588 1589 1590 1590 1211 1570 6300
1211 1211 1570 6300 6300
6300 6300 1570 6300
6300 1211 1570 6300
6300 1211
1211 1211
1211 1211
1211 1211
1211 1211
1211 1211 1211 1211 1211 1211 1570
4 1570
4 6300 4 6300 4 6300 4 6300 4 6300
4 6300
o o o o o o o o 7
o o o 7 7
30
12 o
12 67 o o
50
55 o o o o o o o o o o o o o o o o o 3 3
3
3
3 3
a o a o o o o
o Intercompany o Intercompany
o Intercompany o Intercompany
a Intercompany
o Intercompany a Unbilled Costs
a a Intercompany Intercompany
a a Costs Written Down Costs Written Down
o 4181000 Unbilled Costs Unbilled Costs o 4181000 Unbilled Costs Unbilled Costs
o 4510010 Intercompany Intercompany
o 6288100 Costs Written Down Costs Written Down o 6288100 Costs Writt~n Down Costs Written Down
o 6288100 Costs Written Down Costs Written Dewn o 0 Costs Written Down Costs Written Dewn
a 0 Intercompany Intercompany o 0 Costs Written Down Costs Written Dewn
o 0 Costs Written Down Costs Written Down o 0 Unbilled Costs Unbilled Costs
o o
.0
a a a a a o a a a o o a a o a o o a o o o o o
o Intercompany Intercompany
o Costs Written Down Costs Written Down
o Costs Written Down Costs Written Oqwn
o Transaction 270 o Transaction 270 o 'Unbilled Costs
o Unbilled G.Qsts o Unbilled Costs
o Unbilled Costs o Unbilled Costs
o Unbilled Costs
o Unbilled Costs
o Unbilled Costs
o Unbilled Costs o Unbilled Costs o Unbilled Costs
o Unbilled Costs o Unbilled Costs
o Intercompany
Transaction 270 Transaction 270
Unbilled Costs
Unbilled Costs Unbilled Costs
Unbilled Costs Unbilled Costs
Unbilled Costs
Unbilled Costs
Unbilled Costs
Unbilled Costs
Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs
Intercompany o Int~rcompany Intercompany
o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down
o Costs Written Down Costs Written Down
o Costs Written Down Cos.ts Written Down o Costs Wri tten Down Cos ts Written Down o Costs Written Down Costs Written Down
308,738.48
7.12
220.30
30,979.12
2.40 1.70 7.12
119,956.89
7.60 157,80247
0.85
220.30
220.30
40.88 3.38
3.46 39.86
Credit
220.30
30,979.12
119,956.89 157,802.47
220.30 7.12
30,979.12 2.40 1.70 7.12
44,311.18
55,365.31 20,280.40
7.60
157,802.47
0.85 5.52
39.59 47.83
40.88 40.37
38.45 8.21
8.75 3.46
39.86 35.39 0.85 9.00
220.30
220.30
Debit Hold
220.30
308,738.48
7.12
220.30
30,979.12
2.40 L70 7.12
119,95689
7.60 157,80247
0.85
\
"
220.30
220.30
40.88 3.38 3.46
39.86
Credit Hold Additional Desc Currency Oate
7/10/2008 220.30 7/10/2008
30,979.12
119,956.S9 157,S02.47
220.30 7.12
30,979.12 2.40 L70 7.12
44,311.18
55,365.31
20,280.40
7.60
157,802.47
0.85 5.52
39.59 47.83
40.88 40.37 38.45
8.21
8. 75 3.46
39.86 35.39
0.85 9.00
220.30
220.30
12/5/2008 12/5/2008 8/31/2008 12/5/2008 12/5/2008 7/10/2008 7/10/2008 8/31/2008 12/5/2008
12/5/2008 10/15/2008 10/31/200S 8/31/2008
10/15/2008 10/31/2008
8/31/2008 12/5/Z008
12/5/200S 12/5/2008 12/5(2008 5/28/2008 12/5/2008 5/2f3/2008
12/5/2008 12/17/2008 12/17/Z00S
10/6/2008
11/3/2008 11/10/2008
11/13/2008 11/18/2008
11/19/2008 11/20/Z008
11/24/Z008 11/25/2008
12/1/2008 12/5/2008
12/17/2008 12/18/2008
7/10/2008 7/10/Z008 7/10/2008 7/10/Z008
11/13/2008 11/24/2008 11/25/200S
12/1/2008
NYDA-0000002
209 290 4 6300 3 0 o Costs Written Down 209 290 4 6300 9 0 o Costs Written Down
209 290 4 6300 9 0 o Costs Written Down 209 290 4 6300 9 0 o Costs Written Down 209 290 4 6300 0 o Costs Written Down
209 290 4 6300 9 0 o Costs Written Down 209 290 4 6300 9 0 o Costs Written Down 209 290 4 6300 9 0 o Costs Written Down
I 209 290 4 6300 9 0 o Costs Written Down 209 290 4 6300 12 0 o Costs Written Down 209 290 4 1035 0 0 o Soft Cost Recovery 209 290 4 7035 0 0 o Soft Cost Recovery
.. ..., .
Costs Written Down 35.39 Costs Written Down 5.52 Costs Written Down 39.59 Costs Written Down 47.83 Costs Written Down 38.45 Costs Written Down 8.21 Costs Wrillen Down 5.37 Costs Writt"n Down 0.85 Costs Written Down 9.00 Costs Written Down 40.37 Soft Cost Recovery 0.85 Soft Cost Recovery 0.85
35.39 5.52
39.59 47.83 38.45
8.21 5.37 0.85 9.00
40.37 0.85
\ \,
0.85
12/5/2008 10/6/2008 11/3/2008
11/10/2008
11/19/2008 11/20/2008
11/24/2008 12/17/2008 12/18/2008 11/18/2008 12/17/2008 12/17/2008
NYDA-0000003
- General Journal Header
EnllJ' 10: lab_ AJ7568 Model Entry 10:.
S.lentO:· !GJ7434B4 Transaction Dale: 112131/2008
Gt l~'j.It~: E:fil:::g*[tml\~i::&I~@~lui!~tl~li~il1ii1 • r .~.lJic>rfldh(. Re..,ef,~ .. .,1
Ol[len(;~.,· IIK~1\(:1;;SiiB~~~P,llk~11:Iill~Gi;:1,I,ILi~blil:i,:...:J Currency D.t.: 10310312008
Ficl=.<f)111:19 C.Urt":-IK·Y: 3 SpotRele; ~~---
Company:
Description; 1-- =§j 1~\I~mw.III~ • .IU1l1tq!.IIf_~ [RECEIvABLE.CLlENT DISBURSEMENTS UNBILLEO
W Show Loc<!ll N~trotive r Show Consolidation Narrotive
Account Local N.arratiye _1...... 101 101 01 1211 000 00000 0000000 Unbilled Costs
2 101 101 01 . 1211 000 00000 0000000 UnbnedCosts 47.102.07 12105/2008 3 101 101 01 1572 000 00000 0000000 Intercompany 14.12 03/0312008 4 101 101 01 1572 00000000 0000000 Intercompany '27.348,55.1210512008 5 101 101 '01 6300 lilo 00000 0000000 C<r.ts Writlen DoWn 19.753.51 12105/2008
201 241 00.2000 '000 00000 0000000 Oient Cost Clearing 21.40 11/2412008 _7_ 201 241 00 2000 '00000000 0000000 .O'ren\ Cost Clearing 30.78 11/3012008 _8 201 241 00 .2000 000 00000 0000000 Oien! Cost Clearing 4.00 12m!2OoB
9 201 241 00 2000 000 00000 0000000 Oient Cost ae.ring 3O.0B 12.i1712008 10 201 W 00 .2000 000 00000 0000000 Oient Cost ae.ring 31.72 1213012008 11 201 241 00 ,2000 000 00000 0000000 Oient Cost Clearing 61.43.12/3112008 12 201 241 41' 1211 000 00000 0000000 UnbHled Costs .31.40 1112412008 13 201 241 41' '1211 '000 00000 0000000 Unbilled Cosls 30.78 11/30nOO8
14 201 2~1 .41 1211 000 00000 0000000 Unblled Co,l, 4.00 1211112008 15 201 241 41 1211 000 00000 0000000 Unbflled Cosls 30.09 1211712008
16 201 241 41 1211 000 00000 0000000 . Unblled Co«, 31.72 1213012008 17 201 241 41 1211 ODD 00000 0000000 Unbaled Costs 61.49 1213112008
..JL 201 241 .41' 1211 000 00000 0000000 Unbnled Costs BG2.530113112008
...1.L 201 241 41 1211 000 '00000 0000000 Unblled Costs 45.00,0311012008
~~O_ 201 241 41 1211 DOD 00000 0000000 Unblled Costs 20.57 04/1012008
~2L 201 241 : 41 1211 000 00000 0000000 Unblled Cosl, 25.00 04/2312009
_2f .. 201 .241 :41 1211 000 00000 0000000 UnblledCo:;t, 71 ,68114/3012008 _23_ 201 241 41 1211 '000 00000 0000000 UnbiledCo:;ts 30,77'1012112009 \ ~.L 201 ,241 ,41 1570 000 00000 '0000000 Intercompany 14,12: 0310312008 \~ ~
..1L 201241 ,41 1570 000 00000 0000000 Intercompany 27,349.56: 12/0512008 26 201 241 .41 6300 030 00000 0000000 Costs Written ~Down 862,53 01/3112009 27 201 ·241 .41" 5300 030 00000 :0000000 . Cosi. WritlenDoWTl 14';2 . O3i03!2008
~- 201241 41 .5300 030 00000 0000000 'Cost, Wrnten Down 45.00 O3il012008 29 201 ·241 41 :6300 .030 00000 :0000000 ; Co,l, Writlen Down 20.57' 0411012008 30 201 241 41 , S300 '030 00000 . 0000000 :CosbWtilenDown 25.00: 04123/2008 31 201 '241 41 : 5300 .' 030 : 00000 '0000000 : Cosls Writen Down 71.68~ 04/3012008
~- 201 :241 ;41 ;:5300 ::030 ~2.41~j~~030
NYDA-0000004 . ~
Genefal JOUfn.3J Header·-
EnlrylD: IELF> .'~ Mode! Entry ID:
Batch 10: ff,J743484 Transaction Ooate: [12/31/2008
~::1L T !,I~"? r ,C:.Ui;C'niallC' Fie\l-=r:31
c!;O(',l(:Y. Cunency Dale: lfin I i20ri8':
r-.--'---
)escriptiorr
~
7 Sh<lwLocol Norralive r Show Consolidotion Narrative
~'. 101
-~:~ 101 101
.:L.l01 101 _5_'01 101
5 1m 101
::lJ 'OI 101
~~~~~ 101 101
10 101 101 JlJ101 101
!l'01 101
13 101 101 -'4- 101 101 -.l?.J 101 101
-1U101 101
~101 101 18 101 101 19 101 101
AecoU1'lt I I LoeelJlorroove L De"t, -'-_Dedit I-C;;;;;;;,ey Dele 00 2000 000 00000 0000000 er,.n! Cost Clearing ~03A2 1211112009 00 2000 000 00000 0000000 Clien! Cos! Clearing 409.42 12111 12008 01 1211 000 00000 0000000 Soft Cost Recovery 40,00 1212911999 01 121' 000 00000 0000000 Soft Cos! Recovery 40,00 1212811998 01 1211 000 00000 0000000 Soft Cost Recovery 29,95 12/3111999 01 1211 000 00000 0000000 Soft Cost Recovery 29,951213111998 01 1211 000 00000 0000000 Soft Cost Recovery 15,30 '1213011999 01 1211 000 00000 0000000 Soft Cost Recovery 15,30 1213011999 01 1211 000 00000 0000000 Soft Cost Recovery SO,OO 01/3112007 01 1211 000 00000 0000000 Soft Cost Recovery SO,OO,01/31 12007 011211000 00000 0000000 Tr.,,=:I'on27O 1.30 '12/2111999 01 1211 000 '00000 0000000 Tran.act'on270 1,301m111999 01 ,1211 "000 '00000 0000000 Tr.nsaction27O 4,34 '1211411999 01 1211 '. 000 '00000 0000000 'Trantaction 270 1,34'1211411999 01 1211 '000 '00000 oomiooo' ·Tren.action27O 0,99 1211611999 01 1211 '000 '00000 0000000' Tran.action270 0,9B'1211611999 01 1211 000 00000 0000000 Tron •• clion270 . :' om ',212211999 01 1211 000 "00000 '0000000 :T,.nsootion27O 0,07'1212211999 01 1211 ,:000 '00000 0000000 irransaction270 52A19,67: ;1210512008
i '01 101
t-i~i 101 101 101 il' 01 '101
25 101 101 ::::-2L 101 101
01',121', ,:000 '.IlO(JQO 0000000 :!ransaclion270 52.419,6T:12!0512OO8 01 ,1211 "000 "00000 0000000 'UnbiHedCo,t. 40,00 '1212811999 01: 1211 "000 :'00000 '0000000 ;Unbin.dCo,t. 4O,oo;I~2811998 01 ;1211 'ODD "00000 :0000000 ,UnbiledCost. 29.95 r12131 11998 01 ' 1211 000 "00000 '0000000 i Unbiled Co,t, 29,95' 12/3111998 \ 01 :: I 211 '000' : 00000 : 0000000 i UnbiR.d Cod, 15,30 i I 213011999, " , D1 :,21, : 000:'00000 :0000000" ;UnbiledCo,t, 15:30' 1213011999" , .. - '-~
j7 101 101 011211 "000 ':00000 :0000000 :UnbiledCo.ts SO,OO '0113112007
2S 101 "101 01 ,121; ::000 ':00000 '0000000' :UnbiledCo.t. 'so.OO:!liIJOi007
..1S 101 101 01 :, I 21" '000 ,: 0000.0 '0000000 : Unbiled Co,t'. 409-42. ,:!. 211.,112008 30 101 101 '·01 :1211 "DOD :,00000 :0000000 : Unbiled Cost, 409.42'1211112008 31 101 '10l: 01 ,;1211 ::000,:00000 :0000000 'UnbiledCo,l> 027 '1212111999
32101101 01'1211 ':000: 00000 . 0000000 ;UnbiledCo,t. 8,78' '1212811999 33 101 I 01 01: 121 I :' DOD [00000 '0000000, . UnbiUed Co,t. 6,57: 1,213111999 34 101 '101 '01 ,,1211 ':000: 00000 '0000000 ,UnbiHedCo.t. 0,29 ;12114/1999 ~_ 101101 01 :,1211 :OOO! oomJ(i ',OOoboOIi' :UnbIUedCo,t. il20 "';12;16/1999
3$ 101 '101 '01':1211 'rooo' 00000 .:0000000 'UnbiledCo,t. 0.01 '1212211999 37 101 ;:'0101'12'1' 1 DOll; 00000 '0000000' :UnbiftedcO.t.3,3611z13oi'9s9
39 101 ::'~':01 :1211,' OD~,: 00000:0000000 iUnbiledCo,I. 10:99 ;01/~I?OO7 _~ 101:101.'01,1'211 : DOD: 00000 .:;0000000 tUnbiledCo.h 137,.70110/01.12003,' ,... . ... , '" ". c. . , ,",,<, . ", .-"Q 101101 :'01 :1211 ! 000 ~ 00000 '10000000, IUnb~edCod' 68,34!10/08I2oo8 I> ,;:'."" ";, ,.>,;::,\/1:>:;»,"',,';':< , :' c' ',. ""', i~ /11101 '101 01 ,1211 ,000 I 00000 10000000 rUnbrftedCod. 3LG411011312OO8 , v, "",,':' -- ",', .. ,,, COl,,, """1'" , NYDA-OOOObOS LJ~
Account Company location Primary Department Timekeeper local 101 101 a 2000 0 a 101 101 0 2000 0 a 101 101 101 101 101
'101 101 101 101 101 101 101 101 101 101 101 101
101 101 101 101 101 101
101
101 101 101
101 101
101
101 101 101 101
101 101 101
101 101
101 101 101 101 101 101 101 101 101
101 101 101 101 101 101 101 101 101 101 101 101 101 101 101 101
101 101
101 101
101 101 101 101 101
101 101
101 101 101
101 101 101
101
101 101 101 101 101
101 101 101 101 101 101 101 101 101
1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211
1 1211 1211
1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211
1 1211 1 1211 1 1211 1 1211 1 1211 1 1211 1 1211
1 1211 1 1211 1 1211
1 1211 1 1211 1 1211 1 1211 1 1211 1 12.11 1 1211 1 1211 1 1211 1 1211'
1 1211
o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o
o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o ~
o o o o o o o o a o a o o
local Narrative
o Client Cost dearing o Client Cost dearing o Soft Cost Recovery o Soft Cost Recovery o Soft Cost Recovery o Soft Cost Recovery o Soft Cost Recovery o Soft Cost Recovery o Soft Cost Recovery o Soft Cost Recovery o Transaction 270 o Transaction 270 o Transaction 270 o Transaction 270 o Transaction 270 o Transaction 270 o Transaction 270 o Transaction 270 o Transaction 270 o Transaction 270 o Unbilled Costs o Unbilled Costs o Unbilled Costs o Unbilled Costs o Unbilled Costs o Unbilled Costs o Un billed Costs o Unbilled Costs o Un billed Costs o Unbilled Costs o Unbilled C;;'ts
o Unbilled Costs o Unbilled Costs
o Unbilled Costs o Unbilled Costs o Unbilled Costs
o Unbilled Costs o Unbilled Costs o Unbilled Costs o Unbilhid Costs o Unbilled Costs
o Unbilled Costs o Unbilled Costs o Unbilled Costs o Unbilled Costs o Un billed Costs o Unbilled Costs o Unbilled Costs o Un billed Costs
o Unbilled Costs
Consolidation Narratrve
Client Cost Clearing Client Cost dearing Soft Cost Recovery Soft Cost Recovery Soft Cost Reoovery Soft Cost Reoovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Transaction 270 Transaction 270 Transaction 270 Transaction 270
Transaction 270 Transaction 270 Transaction 270 Transaction 270
Transaction 270 Transaction 270 Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Un billed Costs Unbilled Costs Unbilled Costs
Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs
Un billed Costs Unbilled Costs Unbilled Costs
Unbilled Costs Unbilled Costs
Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs
Unbilled Costs Unbilled Costs Un billed Costs
Unbilled Costs
Em ployee Debit Credit 409.42
40
2995
15.3
so
1.3
134
098
0.07
52,419.67
40
29.95
15.3
50
409.42
0.27 8.78 6.57
0.29 0.2
0.01 3.36
10.99
3.381,407.45 8.24
24.73 4.11
4.12 14.76
9.44
409.42
40
29.95
15.3
50
1.3
1.34
0.98
0.07
52,419.67
40
29.95
15.3
50
409.42
137.7 68.34 32.64
32.64
9234
Debit Hold Credit Hold Additional Desc Currency Date
12/11/2008 12/11/2008 12/28/1998 12/28/1998 12/31/1998 12/31/1998 12/30/1999 12/30/1999
409.42
40
29.95
15.3
50
1.3
1.3/1.
0.98
0.07
52,419.67
40
29.95
15.3
50
409.42
0.27 8.78, 6.57 '-
0.29
0.2 0.01
3.35 10.99
3,381,407.45 8.24
24.73 4.11 4.12
14.76
9.44
409.42
40
29.95
153
50
13
1.3/1.
0.98
0.07
52,419.67
40
29.95
153
50
409.42
137.7
68.34 32.64
32.64
92.34
1/31(2007 1/31(2007
12/21(1998 12/21(1998 12{14/1999 12/14/1999
, 12/16/1999 12{16/1999 12/22/1999 12/22/1999
12{5/2008 12/5/2008
12/28/1998 12/28/1998 12/31/1998 12/31/1998 12/30/1999 12/30/1999
1/31/2007 1/31/2007
12/11/2008 12/11/2008 12/21/1998 12/28/1998 12/31/1998 12/14/1999
12/16/1999 12/22/1999
12/30/1999 1/31/2007
-10/7/2008 10/8/2008
10/13/2008
10/22/2008 12/5/2008
12/15/2008 12/16/2008 12/18/2008 12/19/2008 12/22/2008 12/22/2008 12/23(2008
NYDA-0000006
101 101 101 101 101 101 101 101 101 101 101 101 101 101 101
101 101 101 101
101 101 101
101 101 101
101 101 101 101
101 101 101
101 101 101
101 101 101
101 101 101 101 101 101 101 101 101 101 101
101
101
101 101 101 101 101 101 101
101 101
101 101 101 101
101 101
101 101 101 101 101 101 101
101 101 101 101 101 101 101
101 101 101
101 101 101
101
101 101 101 101
101 101 101 101 101 101 101 101 101
101 101
1 1211 1 1572 1 1573 1 6300
6300 6300
1 6300 1 6300 1 6300 1 6300 1 6300 1 6300
1 6300 6300
1 6300 1 6300 1 6300 1 6300 1 6300 1 6300
1 6300 1 6300
1 6300 1 6300 1 6300
6300 6300
1 6300 1 6300
1 6300 1 6300 1 6300
1 6300 1 7020
7020 1 7020
7020 1 7020 1 7020 1 7020 1 7020 1 7035
7035 5 6300
12 6300 18 6300 18 6300 18 6300 45 6300 85 6300 90 1211
o o a 4 7 7 7 7
7 7 8
9 U U U II
U II II
II U II II
II II II II 21
30
~
~
m o o o o o o o o o o
B 8
4 n 30 30
n o
o o o o o o o o o o o o o o o o o o 0-
o o o o o o o o o o o o o o o o o o
-{)
o o o o o o o o o o o o o
o Unbilled Costs Unbilled Costs o Intercompany In·tercompany o Intercompany Intercompany o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Cos.ts: Written Down Costs. Written Down
o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down
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o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down
o Costs Written Down Costs Written Down o Costs Written Down o Costs Writte~ Down
o Costs Written Down o Soft Cost Recovery o Soft Cost Recovery o Soft Cost Recovery o Soft Cost Recovery o Soft Cost Recovery o soft Cost Recovery o Soft Cost Recovery o Soft Cost Recovery o Soft Cost Recovery o Soft Cost Recovery o Costs Written Down o Costs Written Down
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o Costs Written Down Costs Written Down
o Costs Written Down Costs Written Down o Costs Written Down o Costs Written Down o Costs Written Down o Unbilled Costs
Costs Written Down Costs Written Down
Costs Written Down Unbilled Costs
137.7 6834 3264 3264
55.5 173,977.84
39,368.13 114,293.65
420,837.52 9234 555
13
134
098
0.07
52,419.67
213,130.43 162,209.ll
0.27 8.78 6.57 0.29
0.2 0.01 3.36
10.99 139,337.76
8.24 24.73 4.11 4.12
14.76 9.44
38,195.10 663,959.34
28,551.59 217,235.02
195,200.07
L3
1.34
0.98
0.07
52,419.67 28,402.63 47,429.36 32,578.61
133,115.31 138,505.44
48,567.77 159,981.69
6
137.7 68.34 3264 3264
92.34 55.5
55.5 173,977.84
39,368.13 114,293.65
420,837.52
213,130.43
162,209.ll 0.27 8.78 6.57 0.29
02 0.01 3.36
10.99 139,337.76
8.24 24.73 4.11 4.ll
14.76
9.44 38,195.10
663,959.34 28,551.59
217,235.02
, 195,200.07 1.3'
1.34
0.98
0.07
52,419.67
13
1.34
0.9S
0.07
52,419.67 28,402.63 47,429.36 32,57&61
133,115.31 138,505.44 48,567.77
159,981.69 6
12/29/2008 12(5/2008 12(5/2008 l2/5/200B 10(7/2008 10(8/2008
10/13/200B 10/22/2008
l2/5/2oo8 12/22/2008 12/29/2008
U(5/2OO8
l2/5/2ooB 12/21/1998 12/28/1998 12/31/1998 12/14/1999 12/16/1999 12/22/1999 12/30/1999
1/31/2007 12/5/2008
12/15/2008 12/16/2008
12/18/2008 12/19/2008 12/22/2008 12/23/2008
12/5/2008 l2/5/200B
12/5/2008 12/5/2008 12/5/2008
12/21/1998 12/21/1998 12/14/1999 12/14/1999 l2/16/1999 12/16/1999 'i2/n(1999 12/22/1999
12/5/2008 12/5/2008 12/5/2008 12/5/2008 ll/S/200B 12/5/2008 12/5/2008
12/5/2008 l2/S/2OO3
12/31/2008
NYDA-0000007
101
101
101
201 201 201 201
201 ,201
201 201
201 201
201 201
201
201
201
201
201 201
201 201
201 201 201
201 201
201 201
201 201
201 201
201 201
201 201
201 201
201 201 201 201 201 201
201
201
201 201 201
101 101 101 241 241 241 241 241 241 241 241 241 241 241 241 241 241 241 241
241 241 241
241 241 241 241 241 241 241 241 241 241 241
241 241
241 241 241 241 241 241 241 241
241 241 241 241 241 241 241
241
90 90 90 o o o o o o o o o o o o o o
41 41
41 41 41
41 41 41 41 41
41 41 41 41 41 41 41
41 41
41 41 41 41 41
6300 6300 6300 2000 2000 2000 2000 2000 2000 2000 2000 2000
2000 2000 2000
2000 2000 1211 1211
1211 1211 1211
1211 1211 1211 1211
1211 , 1211 1211
1211 1211 1211
1211 1211
1211 1570
1573 1573 1573 1575 1575
41 6300 41 6300 41 6300 41 6300 41 6300 41 6300 41 6300
41 5300 41 6300 41 6300
30
30 55 o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o 7
12 12 12 12 12 12 12 12
12
o a o o o o o o o o o o o o o o o o o o o o o o o o
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o Client Cost Clearing o Client Cost dearing o Client Cost Clearing o Client Cost Clearing o Client Cost Clearing o Unbilled Costs o Unbilled Costs
o Unbilled Costs a unbilled Costs o Unbilled Costs
o Unbilled Costs o Unbilled Costs o Unbilled Costs o Unbilled Costs o Un billed Costs o Unbilled Costs o Unbilled Costs o Un billed Costs o Unbilled Costs ,,' o Unbilled Costs o Unbilled Costs o Unbilled Costs
o Un billed Costs o Intercompany
o Intercompany o Intercompany o Intercompany o Intercompany o Inlercompany
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o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down
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o Costs Written Down Costs Written Down
6
3188 46.72
2.172.71
94522
27331
79.45
134.05
1.435.89
2,172.71
94522
26738
34.12
8788
1,345.82
173,977.64
4323
13132 1393 2322 20.57
23.18 46
31.18
295,888.88
90,642.19
2.172.71
945.22
267.38
34.12
87.88
1,345.82
3L88 46.72
2.172.71
945.22
273.31
79.45
134.05
1.435.89 23.18 47.47 31.18 206.9
43.23 23.22 20.57
13L32 13.93
50.328.22
57,158.22
295,888.88 6
31.88 46.72
2.172.71
945.22
273.31
79.45
134.05
1,435.89
2,172.71
945.22
267.38
34.12
87.88
1,345.82
\\
173,977.84
43.23
131.32 13.93 23.22 20.57
23.18 46
31.18
90,642.19
2,172.71
945.22
267.38
34.12
87.S8
1.345.82 31.88 46.72
2,172.71
945.22
273.31
79.45
134.05
1,435.89 23.18 47.47
31.18 Z069
43.23 23.22 20.57
131.32 13.93
50,328.22
57,158.22
12/5/200S 12/31/2008
12/5/2008 11/24/2008 11/30/2008
12/5/2008 12/5/2008
12/10/2008 12/10/2008 12/11/200S 12/11/200S 12/17/200S 12/17/200S 12/30/2008 12/30/2008
12/31/2008 12/31/200S
11/24/2008 11/30/2008
12/5/200S 12/5/2008
12/10/2008
12/10/200S 12/11/2008 12/11/2008 12/17/2008 12/17/2008
12/30/2008 12/30/200S
12/31/2008 12/31(2008 12/22/Z008 12/29/200S 12/30/2008
12/31/2008 12/5/200S 12/4/200S
12/17/200S 12/19/2008 -12/8/2008 12/15/2008
12/5/2008 12/4/2008 12/5/200S 12/8(2008
12/15/Z008 12/17/200S 12/19/2008
12/22/2008 12/29/2008 12/30/200S
NYDA-0000008
201 201 201 203 203 204 204
204 .204
204 204 204
204 204 204 204 204 204 204 204 204 204
204 204 204 204 204
204 204 204 204 204 204
204 204 204 204 204 204
204 204 204
204 204 204 204 204 204 204 204 204
241 241 241 261 261
250 250 250 250 250 250 250
250 250 250 250 250 250 250 250 250 250 250 250 250 250 250
250 250 250
250 250
250
250 250 250 250 250 250 250 250 250
250 250 250 250 250 250 250 252 252
41 6300 41 6300
41 6300
61 1211 61 1584 o 2000 o 2000 o 2000 o 2000 o 2000 o 2000 o 2000
o 2000 o 2000 o 2000
o 2000 o 2000
o 2000 o 2000 o 2000
o 2000 50 1211 50 1211 50 1211 50 1211 50 1211 50 1211
50 1211 50 50 50 50
50
50 50
50 SO
50 50 SO
50 50
SO 50 50 50 50 50 50 o o
1211 1211 1211 1211 1211
1211 1211 1211 1211 1211 1211 1211 1211 1211 1570 1572 1572 1572 6300 7035 7035 2000 2000
12 22 30
o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o
12 o o o o
o 0 Costs Written Down Costs Written Down o 0 Costs Written Down Costs Written Down
o 0 Costs Written Down
o 4181000 Unbilled Costs
o 4510150 Intercompa ny
o 0 Client Cost aearing
o 0 Client Cost aearing o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o
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o Client Cost aearing o Client Cost aearing o Client Cost Clearing o Client Cost Clearing
o Client Cost Clearing
o Client Cost Clea ring o Transaction 270
o Transaction 270 o Unbilled Costs o Un billed Costs
o Unbilled Costs o Unbilled Costs
o Unbilled Costs o Unbilled Costs
o Unbilled Costs
o Unbilled Costs o Unbilled eosts o Unbilled Costs
o Un billed Costs
o Un billed COsts
o Unbilled Costs o Unbilled Costs
o Unbilled Costs o Unbilled Costs
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o Unbilled Costs o Unbilled Costs
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o Intercompany o Intercompany o Costs Written Down
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Costs Written Down
Unbilled Costs
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Client Cost dearing Transaction 270
Transaction 270 Unbilled Costs Un billed Costs Unbilled Costs
Unbilled Costs
Un billed Costs Unbilled Costs
unbilled Costs Unbilled Costs Unbilled Costs
Unbilled Costs
Unbilled Costs
Unbilled Costs Unbilled Costs
Unbilled Costs
UnbllIed Costs Unbill"d Costs
Unbill"d Costs
Unbilled Costs Unbilled Costs
Intercompany Intercompany
Intercompany Intercompany Costs Written Oown
Soft Cost Recovery Soft Cost Recovery
Client Cost CI"aring Client Cost Clearing
206.9
1.47
11.04 2,695.99
28&93
118.09
6,942.65
160.77
32868
23552
3933
28125
2,695.99
28893
118.09
6,942.65
150.77
32868
23552
3933
39,36&.13 4323
2322 2057
28125
6286
66,491.40
11.04
2,695.99
288.93
118.09
6,942.65
160.77
328.68
23552
39.33
281.25
2,695.99
288.93
118.09
6,942.65
160.77
328.68
23552
39.33
43.23 23.22 20.57
39,368.13
281.25
62.86
206.9
L47
11.04 2,695.99
288.93
118.09
6,942.65
100.77
328.68
235.52
39.33
281.25
2,695.99
288.93
118.09
6,942.65
160.77
66,491.40
11.04
2,695.99
288.93
118.09
6,942.65
'160.77
328.68
235.52
39.33
281.25
2,695.99
288.93
118.09
6,942.65
\ 160.77 328.68'
235.52
39.33
39,368.13 43.23
23.22 20.57
281.25
62.86
. 328.68
235.52
39.33 43.23 23.22
20.57
39,368.13
281.25
62.86
12/31/2008 12/5/200&
12/29/2008
5/31/2008 5/31/2008 12/3/2008 12/3/2008 12/4/2008 12/4/2008 12/8/2008
12/8/2008 12/12/2008 12/12/2008 12/15/2008 12/15/2008 12/17/2008 12/17/2008 12/~/2008
12/19/2008 12/30/2008
12/30/2008 12/29/2008
12/29/2008 . 12/3/2008
12(3/2008
12/4/2008 12/4/2008
12/8/2008 12(8/2008
12/12/2008 12/12/2008 12/15/2008 12/15/2008
12/17/2008
12/17/2008 12/19/2008 12/~/2oo8
12/30/2008 12/30/200& -12/4/2008
12/17/2008 12/19/2008
12(5/200& 12(4/2008
12/17/LfJ08 12/~/LfJ08
12/5/2008 12/29/2008 12/29/2008
12/8/2008 12/S/200S
NYDA-0000009
204
204
204 204 204 204 204 204
,204
204 204
204
204 204 204 204
204
204 209
209
209 209
209 209
209 209
209
209 209 209
209 209
209 209
209 209
209 301 301 301 301
301 301
301 301 301 301 301 301 301 301
252 252 252 752
252 252 252 252 252 252 252 252 252 252 252 252 252 252 290 290
290 290
290 290
290 290 290
290 290 290 290 290
290 290
290 290 290 305 305
305 305 309 309 309 309 309 309 309 309 309 309
o o o o o a
52 52 52 52 52 52 52 52 52 52 52 52
4
4
2000 2000 2000 2000 2000 2000 1211 1211 1211 1211 1211 1211 1211 1211 1211 1211 15n 15n 1211
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4 1211 4 1211
4 1211 4 1211 4 1211
4 6300 4 6300 4 6300 4 6300 4 6300
4 6300 4 7010
4 7010 4 7010 4 7010
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9 1211 9 1211 9 1211 9 1211
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o o o o o o o o o o o o o o o o o o o o o o o o o o o 9
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o o o o o o o o o o o o o 6
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o Transaction 270 o Transaction 270 o Unbilled Costs o Unbilled Costs
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Unbilled Costs o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Written Down Costs Written Down o Costs Writ@n Down Costs Written Down o Costs Written Down o Soft Cost Recovery
o Soft Cost Recovery o Soft Cost Recovery
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Costs Written Dow'l Soft Cost Recovery
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Unbilled Costs
16.79
112.9
4.37
62.86
16.79
1129
4.37
13132 1393 0.76
385
55.04 5085
16.6 11698
14.74
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30.19
30.19
34.84
236.98
34.84
236.98
84.73
16.79
112.9
4.37
62.86
15.79
112.9
4.37 131.32
13.93
0.76
3.85 14.74 55.04
107.65 16.6
116.98
0.76
3.&5
30.19
30.19
34.84
236.98
34.84
236.98
109.46
16.79
112.9
4.37
62.86
16.79
112.9
4.37
13L32 13.93 0.76
3.85
55.04 50.85
16.6 116.98
14.74
56.81,
.0.75 "
3.85
30.19
30.19
34.84
236.98
34.84
236.98
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16.79
1129
4.37
62.86
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4.37 131.32
13.93
0.76
3.85 14.74 55.04
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30.19
34.84
236.98
34.84
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109.46
12/12/2008 12/12/2008 12/15/2008 12/15/Z008 12/19/2008 12/19/2008
12/8/2008 12/8/2008
12/12/2008 12/12/2008 12/15/2.008 12/15/2008 12/19/2008 12/19/2008
12/8/2008 12/15/2008
12/8/2008 12/15/2008 12/22/2008 12/22/2008
12/30/2008 12/30/2008
11/4/2008 11/10/2008 11/18/2008 n/25/2008 12/23/2008 11/10/2008 11/18/2008 11/25/2008 12/23/2008
11/4/2008 11/18/2008 12/22/2008
12/22/2008 12/30/2008 12/30/2008
10/31/2008 10/31/2008 1.0/31/2008 10/31/2008
11/14/2008 11/14/2008 12/10/2008 12/10/2008 11/14/2008 11/]4/2008 12/10/2008 12/10/2008 10/15/2007 10/lS/2007
NYDA-0000010
301 309 9 1584 0 0 o Intercompany Intercompany
301 309 9 1584 0 0 o Intercompany Intercompany 304 375 75 1211 0 0 o Unbilled Costs Unbilled Costs 304 375 75 1211 0 0 o Unbilled Costs Unbilled Costs 304 375 75 1211 0 0 o Unbilled Costs Unbilled Costs 304 375 75 1211 0 0 o Unbilled Costs Unbilled Costs 304 375 75 1211 0 0 o Unbilled Costs Unbilled Costs 304 375 75 1211 0 0 o Unbilled Costs . Unbilled Costs
, 304 375 75 1576 0 0 o Intercompany Intercompany 304 375 75 1579 0 0 o Intercompany Intercompany 304 375 75 1579 0 0 o Intercompany Intercompany 304 375 75 G300 7 0 o Costs Written Down Costs Written Down
304 375 75 6300 7 0 o Costs Written Down Costs Written Down 304 375 75 6300 7 0 o Costs Written Down Costs Written Down 304 375 75 6300 7 0 o Costs Written OrnNn Costs Written Down 304 375 75 6300 7 0 o Costs Written Down Costs Written Down 304 375 7S 6300 7 0 o Costs Written Down Costs Written bown
304 375 7S 6300 7 0 o Costs Written Down Costs Written Down
304 375 7S 6300 7 0 o Costs Written Down Costs Written Down
304 375 75 6300 7 0 o Costs Written DOWn Costs Written Down
"
109.46 84.73
913.57 84.73
3.71 36.37
0.1 0.77
11.04 84.73
109.46 109.46
84.73 84.73
913.57 3.71
3637 0.1
0.77 lL04
109.46
913.57
84.73
109.46
84.73
3.71 36.37
0.1 0.77
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10/15/2007 84.73 10/15/2007
11/1/2007 84.73 11/1/2007
3.71 11/9/2007 36.37 11/30/2007
0.1 12/5/2007 0.77 1/23/200&
11.04 5/31/200S 10/15/2007
109.46 10/15/2007 10/15/2007
84.73 10/15/2007 11/1/2007
913.57 11/1/2007 11/9/2007
11/30/2007 12/5/2007
1/23/2008 5/31/2008
NYDA-0000011
. Batch Information
Batch Number. 743484
B.tch Oper~tor. 10zu,saN
Type: IAUDIT
Period: 11208
_ ... _l._~~ __ J _1_1337991.000003 Vanonv. Reptol
2 190~37.6~9636 El '-3- 080368.000003 WebF".ncial -4'· 0~0222.673556 Caremark 5- 779166.6M364 Soci.lluuet
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11 310459.000929 Well< Notice 12 360031.000034 CIo<;,g Work ''''13' 302403.0132235 ·Heno/el.1. v. Sl Cr";,A1umina et.1. (Claim No.
14 315213.000001 'UBS 15 314078.000014 LSI Subprime -16 315418.000001 Derivative MaUert ---=j7' 312178.000002 ['","Litigation ---,g 310170.000425 Investigation -19 31575{000002 . Northem Trust Company 20 311935.0Iioool Ci<limoAga;,:tZFMeritor 21 3033~0.OOO019 CA. Rat. Filing . 22 1302697.000740' Aet~iner
23 312605.000001 :AlG Ca['omi. Uligation --24" 030392. 678127 ctP V '-is 780010.675944 'Palamon·Sigla 2s 779741.681262 ·Bi.!ettiIPO 27 314704.000001 : Litigation Regarding Disbibution Rights ol'Soltware . ~2s 311319.000062 Stat. of Connecticut Ditpute -iil 311454.000003 Ca,tlewood Di,pute ,30 314784.000001 Renovation Proiect -31314874.000001 'Proiect Monument
32 070200. 6112759 'Inle;~.tionat Fund" 33 304400.000055 'Proiect Shield
34 I 779610.673758 : Sod";'o
3~ 781251.G82435 DePuy -36 315216.000001 Tirnolhy&ThomM LLC 37 100196.000001 W."Trust '-:is 781198.682796 CMBS 2007·C34 :::39 30448!iii10004 ,JOSTAE LOAN ~REORGANISATION ~3997
40 78051 e. 682203 ~ B.in IApilallT e.mSy,tem rel.verage 41 780213.677120 :lnvestmentAG
42 314028.ilooool;P,'oi~clThebe:· 43 070106.674117 ;Amersh.m Tax 44 030328.679478 'Insuln 45 310463.000173 'Dat.SalelyVault
46 130377. 660506 ! EL 47" 312916.000001 'Guilherme 48 190437.i;67013'Defe';"~ Profil .. 49 ~ 780936.682627ILS Te,Ad'lice
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0.00 PGE PoI<ka Grupa Energely=a S.A EUR -119.16 Me~opolit.n Loe Inwrane. CO. . USD
0.00 China National on ~ Gas E>eplor.lion ~ Dev USD 162,852.73'Liir""en Man1ime eeteiligungs GmbH & Co. EUR 178.153.52 Ambac Assurance Corporation USD 59,716.69 lberdrola USA M.nagement Corporation . USD
175.600.25 Carter.JavW. USD 1 G2,784.60'Pereira. John A. Trustee USD 151.013.23 Alcoa (Specioij USD 114,293.65 Fmish Line 'USD 110.618.08 Rdefity Naljonaltnformation Service. : USD 102.919.31 Brocade Communication, System •. Inc. 'USD 83,671.27 Arab Bank. pic 'USD 82.970.09 EpicAdvisort. LLC . USD 80.695.64 BP Corporation NorthAmerica, Inc. USD 76.922.95 Eaton Corporation 'USD 74.157.38:AII'tate Corpor.tion 'USD 72,819.81 Voila RiverAuthority ,USD 6GA91 AO, Fmancier'-Pinault :USD
109.882.94: Coner Capital USD 56,168.31 ,Palamen CapitaIPartn... EUR 43.984.04. Unicredito Banco Mobilare S.pA EUR 40,540.41 ,Artlici.I Solution: GmbH . GBP S5,392.50 The Energy NetwOlk 'USD 53.707.54: Nationallndemnily Co. :USD
O.OO:DOkeFarms FOU'ldation ;USD 52:419.67:tJunich Rein:urance~riCa.I';". :iJSD 52-326.18. General Eteclric As::et Manag-";;;' . ! iJSD 50,496.65 :Ambae As::uranoe Corporation ! USD 50,035.56: Feel.'" Food D~tribution ! USD 49,592.33)Jedtronic Sofarnor Danek-Inc. ;USD 48:S67.n:V,ral Genetics, Inc. jiJsD 47.S09.29· Timothy J. Coleman •• s Receiver i USD 47.429.36:W.chovi. IApit.I Markets lLC .. lUSD 39.268.75·JosI;'Bruno lEUR 26,196:35:80;';·C.D"0I Ud ,EUR 37,175.75; Deul:che Asset M9mt. investmentgesellscl:EUR 23,939.SS;HSBC ~ ~ ~ ~. jusD 23,749.48. General Elcellic Company ,USD 23,505.11 :Novar\is Corpor.tion 'USD 32,415A7,Safety Inlefligenc. Systems :USD 43~61o.39;hferrm lynch. Piefce~ Fenne~ &: Smi-th Inc.' ;USD 43;197.93:Banoo Bradesco SA ;USD 36,046.27, Gtigroup Global Markets Inc. i USD 34.676.91 . IApm.rk FlOenci.1 Group Inc. ,USD 24.009.B4:Angol. LNG Proiect !USD ?1R<:tI 1n;t=i.4 ... 11,JtJ .... l;,..,""' ... ICi .... :oot"l ... i.II"",.. 111t:n ) ,. .' . - ,. -', . .'~' .. "., .
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Matter Description
337891.000003 Valton v. Repsol
190437.648636 EL
80368.000003 WebFinancial
40222.673556 Caremark
779166.684364 Social Issues
351321.000001 General Corporate
309744.000008 Russian Matters - Gene ral
781367.683146 Liirssen-Gruppe
304400.000057 Structured Finance Workouts and Restructurings
311193.000146 NY Project Cable
310459.000929 Wells Notice
360031.000034 Closing Work
302403.082295 Henry et al. v. St. Croix Alumina et al. (Claim No.
315213.000001 UBS
314078.000014 LSI Subprime
315418.000001 Derivative Matters
312178.000002 Civil Litigation
310170.000425 Investigation
315754.000002 Northern Trust Company
311935.000001 Claims Against ZF Meritor
303340.000019 CA. Rate Filing
302697.000740 Retainer
312605.000001 AIG California Litigation
30392.678427 CIP V
780010.675944 Palamon - Sigla
779741.681262 Bialetti IPO
....
314704.000001 litigation Regarding Distribution Rights of Software
311319.000062 State of Connecticut Dispute
311454.000003 Castlewood Dispute
314784.000001 Renovation Project
314874.000001 Project Monument 70200.682758 International Fund II
304400.000055 Project Shield
779610.673758 Sodexho
781251.682435 DePuy
315216.000001 Timothy & Thomas LLC
Amount Client Name
(20.93) International Chamber Of Commerce
(85.25) Citigroup Global Markets Inc.
181.12 Houlihan Lokey
UBSAG
PGE Polska Grupa Energetyczna S.A
{419.16} Metropolitan life Insurance co.
Currency
GBP
USD
USD
USD
EUR
USD
China National Oil & Gas Exploration & Development USD
162,852.73 liirssen Maritime Beteiligungs GmbH & Co.
178,453.52 Ambac Assurance Corporation
59,716.69 Iberdrola USA Management Corporation
175,600.25 Carter, Jay W.
162,784.60 Pereira, John As Trustee
151,013.23 Alcoa (Special)
114,293.65 Finish line
110,618.08 Fidelity National Information Services
102,919.31 Brocade Communications Systems, Inc.
83,671.27 Arab Bank, pic
82,970.09 Epic Advisors, LLC
80,695.64 BP Corporation North America, Inc.
76,922.95 Eaton Corporation
74,157.38 Allstate Corporation
72,819.81 Volta River Authority
66,491.40 Financiere Pinault \
109,882~-94 Coller Capital ,
56,168.31 Palamon Capital Partners
43,984.04 Unicredito Banca Mobilare S.p.A.
40,540.41 Artificial solutions GmbH
55,392.50 The Energy Network
53,707.54 National Indemnity Co.
Duke Farms Foundation
52,419.67 Munich Reinsurance America, Inc. 52,326.18 General Electric Asset Managem
50,496.65 Ambac Assurance Corporation
50,035.56 Feesers Food Distribution
49,592.33 Medtronic Sofamor Danek, Inc.
48,567.77 Viral Genetics, Inc.
EUR
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
EUR EUR
GBP
USD
USD
USD
USD USD
USD
USD
U5D
USD
NYDA-OOOOO 13
100196.000001 WexTrust 47,909.29 Timothy J. Coleman, as Receiver USD
781198.682796 CMBS 2007-C34 47,429.36 Wachovia Capital Markets llC USD
304488.000004 JOST RE LOAN & REORGANISATION - 3997 39,268.75 Jost, Bruno EUR
780518.682203 Bain Capita!/TeamSystem releverage 26,196.35 Bain Capital Ltd EUR
780213.677120 Investment AG 37,175.75 Deutsche Asset Mgmt. Investmentgesellsch EUR
314028.000001 Project Thebes 23,939.66 HSBC USD
70106.674117 Amersham Tax 23,749.46 General Electric Company USD
30328.679478 Insulin 23,505.11 Novartis Corporation USD
310463.000173 Data Safety Vault 32,415.47 Safety intelligence Systems USD
130377.660506 EL 43,610.39 Merrill Lynch, Pierce, Fenner & Smith Inc. USD
312916.000001 Guilherme 43,397.93 Banco Bradesco S.A. USD
190437.667013 Defense Profiles 36,846.27 Citigroup Global Markets Inc. USD
780936.682627 ILS Tax Advice 34,676.91 Capmark Financial Group Inc. USD
311550.000001 SRATTeam 24,008.84 Angola LNG Project USD
304704.000106 Project November 23,831.10 Fidelity National Financial, Inc. USD
312736.000004 Class Actions 23,790.21 Chicago Bridge & Iron Company N.V. (Mgmt) USD
313967.000003 Civil Litigation 23,748.33 Fransabank USD
307958.000001 Foreign Law Advice - General 33,149.38 JSC VTB Bank USD
313262.000002 Congoleum - File No. OJ001055 32,578.61 CNA Group USD
781821.685099 Project Impala-Securities 31,764.96 QtellnternationaiLLC USD
311935.000002 Claims by H.K. Systems re Iowa Beef Packing 31,264.36 Eaton Corporation USD
307935.000429 I-PRETs Corporate 29,830.26 Keefe Bruyette & Woods USD
311217.000121 Rochester Transmission Project Arbitrati0.Q 29,306.02 Rochester Gas and Electric Corp. USD
305423.000742 XXX RHODA LORAND GUARDIANSHIP 28,551.59 Douglas, Daniel , USD
306047.000604 New York Regulatory Advice 28,402.63 Entergy Nuclear, Inc. \ USD
180074.646381 General 27,080.39 Receiver of ELNY USD
313964.000014 Aggrey Texas Proceedings 26,388.56 Investcom USD
314184.000001 Representation in a murd'er case. 45,630.66 Frederick S: Ajlan USD
781715.684573 Dance 42,394.18 NBC Universal Media, LLC USD
314194.000001 Macau 39,457.83 Cartesian Capital Partners USD
311793.000002 Tuapse 39,368.13 San Sorento Investments Ltd. USD
781251.682423 Fastenetix 38,227.27 Medtronic Sofamor Danek, Inc. USD
312902.000005 IT Resource Strategy 38,195.10 American Express USD
345870.000016 Project Waterfall 36,505.71 liberty Mutual Insurance Co. USD
781528.683883 Governance 35,375.99 CNET Networks, Inc. USD
778907.677249 Petroval Dispute 35,002.90 PKN Orlen SA USD
780844.680852 Pixar Stock Option matters 34,901.68 Mather, Ann USD
NYDA-0000014
314078.000016 Project Sequel 779605.681197 Parrish
779488.672919 Tax Opinion
781251.682432 Cross 315477.000001 In re NBISShareholder Litigation 302697.000833 T2 Financing (50:50) 781611.684134 RFI against Tecnoferr
"
.... '
25,532.51 Fidelity National Information Services USD
25,202.23 NFL Players Association, Inc. USD
24,498.55 Safeway Inc. USD
24,072.48 Medtronic Sofamor Danek, Inc. USD
30,318.13 Meehan Whitcomb, J. Gross, Shinn, Bolson, lambin, C. Gross USD
29,281.81 Volta River Authority GBP
25,707.19 Rete Ferroviaria italiana (RFI) EUR
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NYDA-0000015
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Start Date: /1213112008 End Dal.: 11213112008
Description: 1(((9I.se94 - '1211') OR (gbeg4- '20001 OR (gl.seg4. '63001) OR Emaillmege View Image
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.3219,98.4.01: Costs. Wntten q own 3219.980.75: Costs Wntten Down :i21S:978,511,CO:St. W~tten Down 3219:968,08' Costs Wnlten Clown :iz7s:f36.33i1n1ercompi,ny .. ,-3.124.0aO.50ico.ts Writ";' Down . 3Js4.260.~; Cost; v,irttten Dow;, 3219.968:08: Unbffied Cosls ,- . 3219:956.10. int~rcoffip;;;,y 3.01~d2i.62;Costs WnltenDown 3.01,9~39.60iCo:,tsWritien D.;.;m . 321S.968.08: T ransaclion 270
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APPENDIXH
DISTRICT ATTORNEY OF THE
COUNTY OF NEW YORK
CYRUS R. VANCE. JR. DISTRICT ArrORNEY
By Regullu and Electronic Alail Elkan Abramowitz, Esq.
ONE HOGAN PLACE New York. N. Y.10013
(212) 335-9000
June 13,2014
Morvillo Abramowitz Grand lason & Anello PC 565 Fifth Avenue, New York, New York 10017
Austin V. Campriello, Esq. Bryan Cave LLP 1290 Avenue of the Americas New York, New York 10104
Edward J. M. Little, Esq. Hughes Hubbard & Reed LLP One Batte1Y Park Plaza New York, New York 10004
Re: People v. Davis~ DiCartnine, Sanders. and \'(ianen, Ind. 773/2014 People v. Warren, Ind. 5393/2013
Counsel:
This letter is in response to a Brady demand, two letters demanding discove1Y, and a demand for a bill of particulars that we have received. We will address each request in the order in which it was received.
Request pursuant to Brady v; Marylal1d - Letter dated March 24,2014
You make a sedes of requests pursuant to Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); People v. Cwikla, 46 N.Y. 2d 434 (1979); and CPL § 240.20(1) (h). We arc aware of our continuing dudes under Brady, Giglio and their progeny and will honor our obligations ..
Messrs. Abramowitz, Campriello, Little, and Shechtman June 13, 2014 Page 2
Demand for Discovery -Letter dated April 29, 2014
We respond to the requests in your letter in order. For brevity's sake we do not repeat each request in its entirety.
1. After a diligent search, we have produced all responsive property in our possession, with the exception of certain lists of employees and documents that were clawed back by Dewey & LeBoeuf LLP or the Dewey & LeBoeuf Uquidation Trust ("Dewey") under a claim of privilege (as more fully described in our letter to Counsel dated April 21,2014).
2. We are working with Dewey to provide Counsel the same access to the Dewey accounting system that we have.
3. After a diligent search, we have produced all responsive property in our possession, with the exception of certain employee lists and certain work paper lists.
4. After a diligent search, we have produced all responsive property in our possess10n.
S. After a diligent search, we have produced all responsive property in our possession, with the exception of paperwork relating to a car loan given to one individual who is not a defendant.
6. After a diligent search, we have produced all responsive property in our possession, with the exception of two documents that relate to how an entity determined property responsive to a Grand Jury subpoena.
7. To the extent responsive property exists and has not otherwise been produced, the defendants are not entitled to it at this time.
S. To the extent responsive property exists, the defendants are not entitled to it: at this dmc.
9. To the extent responsive property exists, the defendants are not entitled to it at this time.
10. To the extent responsive property exists, the defendants are not entitled to it at this time.
11. To the extent responsive property exists, the defendants are not entitled to it at this time.
Messrs. Abramowitz, Campricllo, Little, and Shechtman June 13, 20'14 Page 3
12. To the extent responsive property exists and has not otherwise been produced, the defendants are not entitled to it at this time.
13. To the extent responsive property exists, the defendants are not entitled to it at this time.
14. To the extent responsive property exists, the defendants are not entitled to it at this time.
15. 1'0 the extent responsive property exists and has not otherwise been produced, the defendants are not entitled to it at this time.
16. '1'0 the extent responsive property exists, the defendants are not entitled to it at this time.
17. We have provided all responsive material and have complied with our obligations under CPL § 240.20(1)(a)-(i).
18. To the extent responsive property exists and has not otherwise been produced, the defendants are not entitled to it at tlus time.
With respect to your request pursuant to CPL § 240.43, the defendants are not entitled to tIus information at this time.
Demand for Discovery dated May 28, 2014
We respond to the requests in your letter in order. For brevity's sake we do not repeat each request in its entirety.
(110 To the extent a responsive log exists, the defendants are not entitled to it.
• To the extent responsive privilege logs exist and have not otherwise been produced, the defendants arc not entitled to them.
e To the extent responsive correspondence or other writings exist, the defendants are not entitled to them.
e To the extent responsive records exist and have not otherwise been produced, the defendants are not entitled to them at this time.
e To the extent responsive records exist and have not othe1wise been produceu, the defcnuants are not: entitled to them at this time.
Messrs. Abramowitz, Campriello, Little, and Shechtman June 13, 2014 Page 4
• To the extent responsive minutes exist and have not otherwise been produced, the defendants are not entitled to them at this time.
It To the extent responsive records exist and have not otherwise been produced, the defendants are not entitled to them at tllls time.
.. To the extent responsive records exist and have not otherwise been produced, the defendants are not entitled to them at this time.
It To the extent responsive materials exist and have not otherwise been produced, the defendants are not entitled to them at this time.
Request for a BDl of Particulars - dated May 28, 2014
The facts set forth in: the indictment; the Voluntary Disclosure Form ("VDF"); the allocutions of Thomas Mullikin, Francis Canellas, David Rodriguez, Ilya Alter, Lourdes Rodriguez, Jyhjing "Victoria" Harrington, and Dianne Caseino; the Statement of Facts; and the Disclosures - Falsifying Business Records Counts, served in court on all counsel on April 21, 2014, provide all the particulars to which the defendants arc entitled. See CPL §200. 9 5. They provide "tile substance of defendant's conduct ... which the People intend to prove at trial on their direct case .... " The other information requested is evidentiary detail beyond the scope of a bill of particulars. See, People v. Davis, 4l N.Y.2d 678, 680 (1977) ("[a] bill of particulars serves to clarify the pleading; it is not a discovery device"). The defendants acted as both principals and accomplices with respect to the counts in which they are charged. We note that in addition to the items listed above, we have produced to the defendants, at their request, well over one million electronic documents from Dewey and approximately 25 other entities, and approximately 50 boxes of hard copy documents in electronic form.
Sincerely,
Conroy Assistant District
APPENDIX I
CYRUS R. VANCE, JR. DISTIlIOT ATTORIfEY
Han. Robert Stolz
DISTRICT ATTORNEY OFTHE
COUNTY OF NEW YORK ONE HOGAN PLACE
New York, N. Y.100i3 (212) 336·9000
,
July~, 2014
Supreme Court of the State of New York New York County Criminal Term, Part 72 100 Centre Street, Room 1123 New York, NY 10013
Dear Justice Stab,,:
Re: People y. Zachary Warren Indictment No. 0773/2014
We. write briefly to correct several misstatements of both fact and law contained in the Reply Memorandum in Support of Motion by Defendant Zachary Warren for a Severance, dated June 23, 2014 ~1ereinafter, "Defendant's Reply Memorandum").1 A careful look at the argument in the defendant's papers shows that there is some disagreement between the patties about the significance of particular facts, a cleat indication that we are heading to a trial where a jury will resolve the points of disagreement. More important, though, is that the defendant's
\
argument rests primarily on rhetorical devices, which ate not useful in resolving the legal question of whether severance i~ required. Moreover, the authority the defendant cites to support his position, when examined fully, does not militate in favor of severance.
The larger part of the defendant's submission addresses itself to the facts of the case and the meaning the defendant wishes those facts to convey. The defendant first claims that severance is warranted, because the People's entire case against him relies on the testimony of a single witness, Francis Canellas. Then he walks farther out on a weak limb, stating that all of the People's evidence consists of a single
! Defendant Warren argues for the fltst time in his Reply Memorandum that certain c\\ses support his position. The People respectfully request that the Court consider this letter I\S a sutteply to the defendllnt's Reply Memomndum.
DISTRICT AITORNEY OF THE COUNTY OF NEW YORK Hon. Robert Stolz -2- July 3,2014
meeting. Indeed, he states, "At bottom. the People's case tums on what Mr. Warren overheard (and understood) during a single discussion between CaneHas and Sanders." Defendant's Reply Memorandum, at 4. The only underlying basis the defendant claims for his assettion is what he has gleaned from the allocutions of several of the People's witnesses, as if those factual statements .. were the only evidence of any lund that exists against the defendant. But as all of us well know, the allocutions are not the only evidence the People will introduce at trial against the defendant, but rather, they are a small part of the ptoof we expect to bring before the jury. Of course, counsel for Defendant Warren are well aware of much of the additional evidence, having attended a session with the People in which we set forth considerably more evidence than the allocutions alone express. Moreover, the Court should remain mindful that the purpose of the allocutions was to set forth facts implicating the witnesses in the crimes they committed; any part of them that inculpates the defendant is merely incidental. The defendant's reliance on these very limited statements, which as he well knows generally cannot of themselves be admitted as evidence in chief against him, as the sole sources of evidence against him is disingenuous at best. Since the evidence against the defendant is not Ha single discussion" between two other People, and since the defendant's argument relies on a false premise, the Court should reject the defendant's argument.
The defendant also relies heavily on repetition. Apparently he believes that the more he repeats his argument, rather than bacldng up his argument with facts explaining why only at a separate trial will his voice be heard, the more likely it is that the Court will grant him the relief he seeks. The point headings of the defendant's first argument show that his own presentation of a basis for severance is lacking. Almost all of them merely state that he is entitled to a separate trial without explaining how he would be unable to present his case at a joint ttial.2 For example, he claims in Point LB. that the evidence ~hows that he played a lesser role than others in the criminal conspiracy, and therefore he should receive a separate trial. But after setting fotth the few facts he chooses to acknowledge, he claims without support that only at a separate trial could a jury possibly determine whether he formed the requisite criminal intent to !=ommit the crimes with which he is charged. Similarly in Points I.e., I.D., I.E., and I.F., the defendant claims that only a separate jury will be able to determine what he meant when he wrote particular e-mails, what he knew about accounting, what steps he took to cover up his crimes, and what he did or did not do after his employment ended. Nowhere does he explain why a separate jury is necessary here, when juries sort through these lduds of facts all the time at joint trials. Nevertheless, in each of his points, he sets forth facts he wants to prove or disprove, and then baldly states, "That issue cries out for resolution in a separate trial," id. at 7,
2 Poip.t I.A. simply disputes the significance of a [llet tbM will surely be proved at trial.
DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK Hon. Robert Stolz -3- July 3, 2014
or "Mr. Warren is entitled to a separate trial on the question whether he took steps to cover-up a fraud." ld. at 8. Simply repeating the same unsupported conclusion over and over does not satisfy the standard for severance.
Rhetoric aside, the defendant cites legal authority purportedly in support of his argument to rebut the People's position that virtually all of the evidence that we would present at a joint trial of the defendant and his codefendants would also be admissible at the defendant's trial if he were tried separately. However, none of the authority he highlights for the Court actually supports his request for severance. First, he calls the Court's attention to United States y. Mardlan, 546 F.2d 973 (D.c. Cit 1978). In Mardian, a lawyer fat the Committee to Reelect the President was tried jointly with others who covered up the Watergate burglary, and the COUft determined that he should have been tried separately. Id. at 981. In his papers, the defendant claims that the case was remanded for a new trial, because much of the testimony at the joint trial focused on events after Mardian was no longer active in the cover up. Defendant's Reply Memorandum, at 12. In fact, the defendant's argument misleads this Court as to the reason for granting a new trial. Indeed, the Court in Mardian noted that the defendant's application for severance was considered and denied pretrial. "Based on the information then before the court, that showing was not so compelling that it was clear Mardian's interest in a separate trial outweighed these interests favoring joinder. We al'e therefore unable to say that this initial denial of severance constituted an abuse of discretion." 546 F.2d at 979. What the defense here has failed to bring forward is that two weeks after the trial began, Mardian's attorney was hospitalized, and it was determined that he would be unavailable for six weeks. ld. When the attorney's associate then moved for severance, Mardian explained that he wanted to be represented by the attorney he had hired, and not the associate, and the prosecutor did not oppose the severance. !d. The D.C. Circuit held that denial of the severance under !:pose circumstances was error. Id. at 979-80. The Court reasoned that because the defendant had some basis to ask for severance in the ftrst place, that he had the right to be represented by the counsel of his choosing, there was no opposition to the severance, and apparently the government dld not intend to introduce, all of the same evidence at a severed trial, then severance should have been granted. Id. at 981. In contrast here, the defendant is represented by the lawyers of his choosing, the People do not consent to the severance, and we expect the evidence at any separate trial to repeat almost entirely the evidence at a joint trial. Thus, rather than support the defendant's request, Mardian undermines it.
In a footnote, the defendant also cites United States Y, Gallo, 668 F. Supp. 736 (ED.N.Y. 1987), for the proposition that he should receive a separate trial, because he engaged in fewer criminal acts than his codefendants did. What the defendant doesn't acknowledge is that the indictment in Gallo (1) charged a RICO count in
DISTRICT ATTORNEY OF THE COUNTY OF NEW YORI( Han. Robert Stolz -4- July 3, 2014
which only some of the joined defendants were charged, (2) charged a number of criminal schemes and conspiracies, all of which charged only a subset of the defendants, with some defendants being charged in only one, (3) charged a number of violent crimes, while many of the defendants were charged with only nonviolent crimes, and (4) Charged a number of the defendants with being "made members" of an organized crime family, while many of the other defendants were not. rd. at 750-51. This combination of factors among a number of others led the Court to sever the defendants into groups. In contrast here, all of the defendants are charged in the same two related counts of Scheme to Defraud in the First Degree and Conspiracy in the Fifth Degree. Each of the defendants is charged individually or with one or more codefendant with each of the Falsifying Business Records counts that were necessary components of the ongoing scheme and conspiracy. The complexity of the indictment here does not approach that of the indictment in Gallo, so that comparing the two cases provides no useful guidance.
The defendant claims that it is difficult to find fact patterns in other cases that are similar to the facts in the case here. Likely that is so, because coutts do not grant severances in cases like this one. Nevertheless, he seems to have found two that he believes are just like it. First, he cites United States y, Flynn, 852 F.2d 1045 (8th Cit. 1988), but he is inaccurate in setting forth its facts and holding. In Flynn, the defendant participated with other members of a St. Louis organized crime group to commit several murders of rivals. ,W. at 1047-49, The others were charged in an indictment and convicted in 1985. rd. at 1049. Subsequently, the defendant was indicted in 1986. ld. at 1050. The indictment against the defendant c0arged RICO, including three of the seven specific criminal incidents in which the group had engaged, rd. Of the seven total criminal incidents, the defendant had participated in five, some early, some in the middle, and some near the end of the course of criminal conduct of the group as a whole. I4 at 1047-49. The government introduced evidence of the defendant's participation in four of the five, and also of the "enterprise" element of RICO. ld. at 1052-53. As the defendant here correctly cites, the Eighth Circuit ruled, "The evidence of discussions concerning possibly killing Massaud and Trupiano an~ of the· Michaels' murder, in light of the ovetwhelming evidence presented at trial, was not necessary to prove the existence of the enterprise .... Its prejudicial value outweighed its'ptobative value" !d. at 1054. But the Court also noted that, had Flynn been indicted and tried with the other members of the organized crime group, "the testimony would have been admissible . . . provided that the appropriate instructions had been given." ld. Understandably defendant Warren neglects to mention this in his papers, because it eviscerates his argument for severance.
DISTRlCT ATTORNEY OF THE COUNTY OF NEW YORK. Hon. Robert Stolz -5- July 3,2014
Moreover, the case before this Court is quite different. First, procedurally, in Flynn the defendant was tried separately from the other criminals with whom he conspired, because he was never even indicted until after they were convicted. Severance was not an issue as it is here. Second, the only evidence the Court in ~ found to be improperly admitted into evidence was that which was deemed "not necessary" to prove the existence of the enterprise, because the juty had already heard "overwhelming evidence" of that element. Here, the defendant claims that the only evidence against him is "a single discussion between CaneHas and Sanders." Defendant's Reply Memorandum, at 4. Thus, jf the defendant is to be believed, there is hardly overwhelming evidence against him, and so the introduction of additional evidence would necessarily have greater probative value here than such evidence had in Flynn. rt is significant that the piling on of the evidence in Flynn was not so prejudicial that it constituted reversible error. Rather, the Eighth Circuit found that the trial court's instructions to the jury cured any potential error. 852 F.2d at 1054. Since the quantum of evidence against the defendant here is necessarily different than that against the defendant in Flynn, the defendant's attempt to compare the two is a meaningless exercise that does not advance his argument for severance.
The second case the defendant likens to the case here is United States v. kelly, 349 F.2d 720 (2d Cir. 1965). Before examining the case it must be noted that Kelty was decided several years before Bruton y. United States, 391 U.S. 123 (1968), and many years before Crawford v. Washington, 541 U.S. 36 (2004). Had the legal rules from those cases existed at the time Kelly was tried, it is unlikely that the case would have been tried as it was. In~, several people conspired to commit a fraud by manipulating the price of a company's stock during the 1950s. 349 F.2d at 729-55. One participant, Shuck, who ran a boiler foam to sell the stock, did not enter the picture until much of the criminal conduct at issue - most of which was wholly unrelated to the boiler room activity - h~d already occurred. Id. The Second Circuit held that the trial court should have taken action to recognize Shuck's "different position," ld. at 756. The Court set forth a number of ways the trial judge could have done that, including granting a severance, marshaling the evidence for the jury during the court's charge, and providing mote specific instructions on the law. Id. at 756-57. The Court dedicated most of its discussion to how marshaling the evidence for the jury, despite all counsels' request that the trial court not do so, in tandem with an appropriate legal instruction, would have cured the problem. Id. at 757. Moreover, the Second Circuit took issue with the introduction into evidence of "post-conspiracy testimony before the SEC and the Attorney General of the State of New York," given by Shuck's codefendants and implicating Shuck. Id. at 758. "[I']here was such a volume of such proof, and it was so clearly not necessary to the Government case against [Shuck's codefendants], that [the Second Circuit was] constrained to hold that no atnount of cautionary instructions could have undone the
DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK Hon. Robert Stolz -6- July 3,2014
harm to Shuck." ld. The Second Circuit held that it was an abuse of discretion not to grant a severance at the point this test/mOf!} ~'ame into etJid(Jn~·e. ld. at 759. Today, no comt would allow this evidence in the fIrst instance. Testimonial statements of this sort (which by defInition cannot be coconspirator statements) by one defendant about another would require a Bruton severance, and for the ,last ten years would be inadmissible entirely against the codefendant under Ctawford:'
Again, the case before this Comt has signifIcant differences from~. First, we do not seek to use post-conspiracy statements made by Defendants Davis, DiCarmine, or Sanders in the People's direct case against Defendant Warren, so there is no Brutc>o issue here. Second, this is not a case where Defendant Warren's codefendants employed unrelated "ingenious schemes and designs," id. at 759, before Defendant Wanen even entered the scene. Instead, he was there to light the spark that fueled the scheme until its implosion in 2012. What may not be so different is that when the Court delivers its fInal charge to the jury, a proper marshaling of the evidence and appropriate legal instructions can convey the proper legal standards against which the jury must weigh the trial evidence, something the trial court in Kelly failed to do.
Here, the evidence at any trial against Defendant Warren will include all evidence describing the criminal scheme in which he actively participated and the criminal conspiracy in which he played a role. The evidence will include a full presentation of what made up that scheme and that conspiracy, how they operated throughout their existence, and the effects they had on their victims. The evidence against Defendant Warren will be the same whether he is tried with his codefendants or alone. And that evidence will describe the full extent of his crimes as well as the full extent of the scheme to defraud and the conspiracy in which he played a significant role. Severance is in no waY., warranted. After all, the grand jury jointly charged Defendant Warren and his codefendants with engaging in a Scheme to Defraud. Even if Warren were tried separately, the People would be entitled to present evidence of the existence, nature, and extent of the scheme, including ptoof about the activities of itt; various members. Similarly, the grand jury charged Defendant Warren and his codefendants with Conspiracy. Accordingly, even at a separate trial, evidence of his coconspirators' conduct would be admissible to prove the existence and nature of the conspiracy and the completion of overt acts in furtherance of the conspiracy, from which Defendant Warren never withdrew, even after his physical departure from Dewey. All told, the policy considerations discussed i11 our brief filed on June 13, 2014, militate heavily toward a joint trial here due to the fact that virtually identical evidence would be presented at a separate trial of Warren. See, People y. De Los Angeles, 270 A.D.2d 196, 197-98 (1st Dept. 2000)On a case charging cot1Spiracy, trial court properly denied severance motions "since most
DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK Hon. Robert Stolz -7- July 3,2014
of the People's evidence was introduced to establish the joint enterprise" and thus "applied to all defendants" and, in an eight-month trial with 70 Witnesses, severances merely "would have turned an already extended trial into several such trials"); :&Qpk y. Association of Trade Waste Remoyers, 267 A.D.2d 137, 139 (1st Dept. 1999)(in enterprise corruption case, severance motions properly denied since evidence of codefendants' acts would have been admissible in separate trials); see also, United States y. Casamento, 887 F.2d 1141, 1152-53 (2d Cit. 1989)(in 35-defendant, 270-witness tdal, no undue prejudice to "comparatively minor" conspirators where "much of the evidence ... would have been admissible" in "single-defendant trials"); ~ generally, People v. McGee, 49 N.Y.2d 48, 57-58 (1979) ("the overt act of any qmspirator may be attributed to other conspirators to establish the offense of conspiracy").
Therefore, the People respectfully request that the Court deny in all respects the defendant's motion for a trial separate from his codefendants.
Respectfully submitted,
Peirce R. Moser Assistant District Attorney
Steve Pilnyak Assistant District Attorney
7«;~~~~~ Michael Kitsis Assistant District Attorney
ec:
Paul Shechtman, Esq. (for Defendant Zachary Warren) Elkan Abramowitz, Esq. (for Defendant Steven Davis) Austin V. Campriello, Esq. (for Defendant Stephen DiCarmine) Edward J.M. Little, Esq. (for Defendant Joel Sanders)
