01/28/2010 66 MOTION for (404b) Information of defendant or any co-defendant Regarding evidence of independent and separate offenses, wrongs or acts by Rufus Paul Harris. (Manchel, Howard) (Entered: 01/28/2010)
01/28/2010 67 MOTION for Bill of Particulars by Rufus Paul Harris. (Manchel, Howard) (Entered: 01/28/2010)
01/28/2010 68 MOTION to Suppress Testimony from Deposition by Rufus Paul Harris. (Manchel, Howard) (Entered: 01/28/2010)
01/28/2010 69 MOTION to Dismiss Counts Rufus Paul Harris (1) Count 1s,2s,8s for duplicity by Rufus Paul Harris. (Manchel, Howard) (Entered: 01/28/2010)[4:30:07 PM] craighog01: It will help understanding when the pdf's are available. The suppression of the depo is intresting. Mac that is a motion to have some of the charges dismissed.
[Preliminary Motion to Suppress Defendant’s SEC Deposition
Taken Pursuant To A Subpoena But Without Benefit
of 5th Or 6th Amendment Warnings
Comes now Defendant RUFUS PAUL HARRIS and requests this Court to conduct an evidentiary hearing to determine whether his 5th and 6th Amendment rights were violated when attorneys from the United States Securities and Exchange Commission deposed Defendant Harris without advising him of his right to counsel and/or his right not to incriminate himself. In support of his motion Defendant Harris shows the following:
1. Defendant has been indicted for conspiracy to commit to commit securities fraud (18 U.S.C. §1349); securities fraud (18 U.S.C. §1348); five counts of fraud by wire (18 U.S.C. §1343); and false certification of a financial statement (18 U.S.C. §1350).
2. The above indictment follows an SEC investigation, temporary restraining order, and finally a permanent injunction against Defendant from trading in his company, acting as an officer or director of a public corporation for
seven years, disgorgement of any profits, and a civil penalty of over 1.3 million dollars. Said findings and penalties were imposed by Judge Clarence Cooper in this Court on or about September 10, 2008.
3. On information and belief Defendant Harris was deposed pursuant to a subpoena issued by the SEC directing him to appear at a time and place; said subpoena and deposition occurred after the temporary restraining order was granted by Judge Cooper which suspended trading in Conversion Solutions stock and froze the bank and brokerage accounts of his family.. The deposition by three government SEC counsel at their offices lasted at least two days in October and November, 2006. According to the transcripts of the deposition Defendant Harris was not warned by Government counsel of his right not to incriminate himself, or that what he said in the presence of the three attorneys could and would be used against him. Nor is there any advice by Government counsel of the Defendant’s need for counsel or that the matter could be delayed a reasonable time until he obtained counsel.
4. Defendant’s deposition will be used in the Government’s case in chief to establish the elements of the crimes charged against Defendant.
5. The United States Securities and Exchange Commission describes itself
on its web site as being:
First and foremost, the SEC is a law enforcement agency. The Division of Enforcement assists the Commission in executing its law enforcement function by recommending the commencement of investigations of securities law violations, by
recommending that the Commission bring civil actions in federal court or before an administrative law judge, and by prosecuting these cases on behalf of the Commission. As an adjunct to the SEC's civil enforcement authority, the Division works closely with law enforcement agencies in the U.S. and around the world to bring criminal cases when appropriate.
6. The 5th Amendment privilege against self incrimination prohibits the state from compelling an individual to incriminate oneself. It was added to the Bill of Rights in the conviction that too high a price may be paid for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed. This provision of the 5th Amendment must be accorded liberal construction in favor of the right it was intended to secure. Hoffman v. U.S., 341 U.S. 479 (1951).
7. The right to assistance of counsel, under the 6th Amendment is essential because it is the means by which defendants assert all other constitutional rights. U.S. v. Cronic, 466 U.S. 648, 654 (1984). The right to counsel can be waived but only where such waiver is knowing, voluntary, and intelligent. Benitez v. U.S., 521 F3d. 1072 (6th Cir. 2008).. The question this Court must ask was the Defendant made sufficiently aware by government counsel of his right to have counsel present and the fact that answers he provided could lead to a criminal prosecution. In other words, did Government counsel advise the Defendant of the nature of his Fifth and Sixth Amendment rights, and the consequences of abandoning those rights, so the waiver of each right will be considered a knowing and intelligent one? See Patterson v. Illinois, 487 U.S.. 285, 292-93 (1988).
8. In this case the Government cannot establish that Defendant Harris knowingly, voluntarily, and intelligently waived his right to an attorney and thereafter knowingly, voluntarily and intelligently waived his right not to incriminate himself by allowing himself to be deposed by attorneys for the SEC.
Wherefore, Defendant requests that this Court conduct an evidentiary hearing to determine whether Defendant knowingly, voluntarily and intelligently waived his 5th and 6th Amendment rights not to incriminate himself and his right to counsel.
Respectfully submitted,
Howard J. Manchel
Attorney for Rufus Paul Harris
Ga. Bar No. 468550
Motion to Dismiss Indictment on Grounds of Duplicity
Comes now Defendant RUFUS PAUL HARRIS and requests this Court to dismiss Count One and Two of the above styled indictment on the grounds that it is duplicitous and multiplicitous. In support of his motion Defendant Harris shows the following:
Counts One, Two and Eight Are Duplicitous
1. In Count One of the attached indictment Mr. Harris is charged with conspiring to commit securities fraud in violation of 18 U.S.C. §1349. Count One, paragraph 2 states that the object of the conspiracy was to “knowingly and willfully execute and tempt to execute a scheme to defraud with regard to the publicly-traded securities of Conversion Solutions Holdings Corporation, in violation of Title 18 U.S.C. §1348”.
18 U.S.C.§1348 charges as follows:
Whoever knowingly executes, or attempts to execute, a scheme or artifice—
(1) to defraud any person in connection with any security of an issuer with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l) or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d); or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any money or property in connection with the purchase or sale of any security of an issuer with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l) or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d);
shall be fined under this title, or imprisoned not more than 25 years or both.
Indictments charging two or more distinct offenses in a single count are duplicitous. Duplicitous indictments prevent the jury from separately deciding the issue of guilt or innocence with respect to each particular offense, thus creating uncertainty as to whether the defendant’s conviction was based on a unanimous jury decision. Further, duplicitous indictments raise the risk of prejudical evidentiary rulings and make meaningful appellate review difficult. Thus the failure of the Government to allege which section of 18 USC §1348 was the object of the conspiracy in Count One violates the Rule 8(a) of the Federal Rules of Criminal Procedure.
2. Count Two is also duplicitous. Although it charges Mr. Harris and his two codefendants with violating 18 U.S.C. §1348, and the wording of the Count suggests the Government’s intention is to establish a violation of 18 U.S.C. §1348 (2). However, the first paragraph of Count Two states “The Grand Jury includes by incorporation and re-alleges Paragraphs 1-5 of Count One, above” it adopts the same pleading error contained in Count One. Also in alleging the violation of Title 18 U..S.C. §1348 it fails to specify which section of the statute Defendant violated.
3. Count Eight is duplicitous. It charges Mr. Harris with either violating 18 U.S.C. §1350 (c)(1) and (c)(2), but fails to include the necessary language in the charge to warrant charging (c)(2).
WHEREFORE, Defendant Harris requests this Court either order the Government to strike the offending charges or for this Court to dismiss Counts One and Two of said indictment for the reason that it is duplicitous.
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[4:35:41 PM] S_P: MOTION FOR PRETRIAL DISCLOSURE OF EVIDENCE OF
INDEPENDENT AND SEPARATE OFFENSES, WRONGS, OR ACTS
Comes now RUFUS PAUL HARRIS, by his counsel, and moves the Court to order the Government to disclose prior to trial all evidence of independent and separate offenses, wrongs, or acts which the prosecution may attempt to introduce at trial to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident regarding the Defendant’s actions or conduct.
This request is aimed at all crimes, wrongs, or acts not enumerated in the indictment of which the Government has knowledge and Defendant’s relies on Federal Rule of Evidence 404(b) as authority for said request.
WHEREFORE, the Defendant prays that this motion be granted and disclosure be ordered immediately.
Howard J. Manchel
Ga. Bar No. 468550
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[4:36:33 PM] S_P: ok here is the 4th and last one:
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MOTION FOR BILL OF PARTICULARS
Comes now Defendant RUFUS PAUL HARRIS and moves this Court for an order directing the United States of America to file a bill of particulars on the following matters embraced within the indictment:
1. Regarding Count One, paragraph 5 (B) the Government alleges the following:
Defendants Harris and Stanley, and others working for and with CSHC, represented that CSHC owned and maintained …
Please provide the names of the people the Government alleges were working for and with CSHC who the Government is referring to in that paragraph.
2. Regarding Count One, paragraph 5(B) the Government further alleges the following:
The bond investors were told this and other substantial assets would form the basis of CSHC’s ability to raise large amounts of capital for its profitable funding ventures.
Please provide the names of the bond investors.
3. Regarding Count One, paragraph 5 (C) the Government alleges the following:
Over $2 milllion was invested in CSHC by individuals induced to purchase “convertible notes.”
Please provide a list of the individuals the government contends were induced to purchase “convertible notes.”
4. Regarding Count One, paragraph 5(C) the Government alleges the following:
“the company could and in most if not all cases did decide to give the bondholder equity shares in CSHC instead of a cash payment.”
Is the Government contending that CSHC violated any law by deciding to convert the notes to stock instead of providing a cash payment?
Defendant's request seeks the names of those victims of the alleged fraud and those in addition to the named defendants who perpetrated the alleged fraud. In the category of victims, the defendants believe the first determination must be whether such persons exist and if so, did they purchase stock based on allegations from the defendants named in the indictment or allegations from “other parties.” In the category of others working for and with CSHC their identities are necessary in order to defend the conspiracy charge. Without the names of the “other parties” it would be difficult to rebut claims that they were working for the Defendants.
The purpose of a bill of particulars is to apprise the defendant of the essential facts of the crime for which the defendant has been indicted, especially in instances where the indictment itself does little more than track the language of the statute allegedly violated. United States v. Salazar, 485 F2d 1272, 1278 (2d Cir. 1973). It serves to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise at trial, and to enable him to plead
double jeopardy in the event of a later prosecution of the same offense. United States v. Warren, 772 F.2d 827 (11th Cir. 1985).
Wherefore, Defendant requests this Court direct the Government to respond to the Bill of Particulars.
Respectfully submitted,
Howard J. Manchel
Attorney for Rufus Paul Harris
Ga. Bar No. 468550
