Doc 47 OCR extract - part 5: GOVERNMENT'S OMNIBUS RESPONSE TO DEFENDANT MANGIAPANE'S PRE-TRIAL MOTIONS
3. The Defendant's Specific Claims are Meritless
The defendant raises a number of specific complaints concerning the indictment, all of which should fail. First, the defendant contends that the indictment fails to provide information "regarding dates and locations of meetings" at which he "joined and participated" in the conspiracy. Motion for Bill of Particulars at 2-3. While such detail is not required in a notice pleading, see Almodovar at *5-6, it is notable that the indictment in this case does contain allegations that relate to this precise issue. For example, paragraph 8b: In or about October 2006, defendants Dynkowski, Mangiapane, and Riviello along with other separately indicted and unindicted co-conspirators known to the grand jury met to discuss their intention to raise money through the sales of GH3 shares via a market manipulation scheme.
See also, e.g., indictment IN 16(g) (alleging delivery of fraud proceeds from Riviello to Mangiapane); 23(g), (q), (t) (alleging buying/selling of AAGH shares by Mangiapane), 31(e) (alleging request to have proceeds of AAGH fraud sent to Mangiapane). The defendant's claim thus both fails as a matter of fact and as a matter of law.[13]
The defendant further complains that he is not specifically identified in certain overt acts alleged in furtherance of the conspiracy set forth in Count 4, and thus a bill of particulars is necessary to explain his involvement. He argues in the alternative that the Court should dismiss those overt acts in which he is not named. The law in this circuit is to the contrary. To prove its case against the defendant, the government must establish only that one overt act was performed by any member of the conspiracy; the government need not prove that the defendant himself committed an overt act. See, e.g., Third Circuit Model Jury Instruction 6.18.371F; [14] United States v. Nelson, 852 F.2d 706, 713 (3d Cir. 1988 ); United States v. Kapp, 781 F.2d 1008, 1012 (3d Cir. 1986). These acts need not themselves have been illegal. See Third Circuit Model Jury Instruction 6.18.371 F. Given that this count alleges numerous overt acts by various alleged co¬conspirators, the defendant's arguments should fail. [15]
[13]It is also important to note, as a matter of law in this Circuit, that the government need not prove any such meetings: The government also does not have to prove that all the members of the conspiracy directly met, or discussed between themselves their unlawful objective(s), or agreed to all the details, or agreed to what the means were by which the objective(s) would be accomplished. The government is not even required to prove that all the people named in the indictment were, in fact, parties to the agreement, or that all members of the alleged conspiracy were named, or that all members of the conspiracy are even known. What the government must prove beyond a reasonable doubt is that two or more persons in some way or manner arrived at some type of agreement, mutual understanding, or meeting of the minds to try to accomplish a common and unlawful objective.
Third Circuit Model Jury Instruction 6.18.371C.
[14]The government must prove beyond a reasonable doubt that at least one member of the conspiracy committed at least one of the overt acts alleged in the indictment and committed it during the time that the conspiracy existed, for the purpose of furthering or helping to objective(s) of the conspiracy.[15]
The defendant claims a bill of particulars is required as to Count 5, which charges a substantive money laundering offense, on the ground that the indictment is silent as to how defendant Mangiapane participated in the alleged illegal financial transaction. As a legal matter, Rule 7 does not require the government to disclose this level of detail. See, e.g., Mariani, 90 F. Supp. 2d at 592; Stewart, supra. In any event, the indictment does, in fact, provide details concerning the alleged money laundering transaction. See indictment In 16(g) (alleging cash proceeds of GH3 fraud being delivered to Mangiapane); 16(h) (alleging hiring of courier by co¬conspirator to deliver portion of cash proceeds to co-defendant Dynkowski). Further, to whatever extent the nature of the defendant's involvement in the transaction is unclear to him, the discovery in this matter will be sufficient. See Stewart, supra. The defendant's claim as to Count 5 should be denied.
As to Count 8, alleging wire fraud in violation of 18 U.S.C. § 1343, the defendant argues that a bill of particulars is necessary to clarify the nature of the interstate wiring set forth in that count.[16] This is incorrect. Count 8 expressly specifies that the interstate electronic communication was sent on August 24, 2006, via America OnLine from screen name "evotrader2005" to screen name "mattbrownfl." See Indictment ¶27. To the extent that the indictment does not specify the identities of these individuals, the discovery in this case will make it abundantly clear. Rule 7(f) does not require the government to specify in the indictment how this wiring furthered the scheme and artifice to defraud. Nor does the statute require that defendant Mangiapane himself be responsible for sending or receiving this wire.[17] No further specificity is required in the indictment, and thus the defendant's claim should be denied.
Taken in total, the defendant's specific information claims represent little more than a request for discovery, akin to civil interrogatories. Such demands are tantamount to a request for "wholesale discovery of the government's evidence," which is not the function of a bill of particulars. Armocida, 515 F.2d at 54; see also Mariani, 90 F. Supp. 2d at 592 (citing Armocida). The defendant's motion fails to demonstrate why a bill of particulars is necessary in this case. To the contrary, it seeks "evidentiary minutia" that fall clearly within the area proscribed by case law on Rule 7(f), and requiring the government to respond would unduly freeze it to its proof at trial. Boffa, 513 F. Supp. at 485. The motion should be denied.
[15]The defendant makes similar complaints concerning Counts 6, 7, and 9. These claims should be denied for the same reasons.
[16]The defendant's motion asserts that the wiring at issue was a press release. This is not correct. The wiring alleged in Count 8 of the indictment is an electronic communication via the instant messaging function of America OnLine. See Indictment1[27.
[17]The government is not required to prove that [defendant] actually used a wire communication in interstate commerce or that [defendant] even intended that anything be transmitted in interstate commerce by means of a wire, radio, or television communication to further, or to advance, or to carry out the scheme." Third Circuit Model Jury Instructions at 6.18.1343-1.
H. The Defendant's Motion for Production of Evidence Favorable to the Accused et al. Should be Denied
The defendant's motion (D.I. 43) asks the Court to direct the government to provide certain categories of evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963). As an initial matter, the government is aware of, and will comply with, its Brady obligation to turn over all material exculpatory evidence in its possession, including impeachment evidence relating to government witnesses. Accordingly, the a request for an order directing the government generally to comply with Brady should be denied as moot.
The defendant's requests for generic categories of information under the auspices of Brady should also be denied. While a defendant may attempt to raise a Brady claim prior to trial, see United States v. Augurs, 427 U.S. 97, 107 (1976), in such situations it is the government, and not the Court, which is charged with determining what evidence in the government's control constitutes Brady material. See Ritchie, 480 U.S. at 59; Leung, 40 F. 3d at 582. Unless the defendant becomes aware of specific Brady material that has been withheld, and brings that evidence to the Court's attention, the government's determination on disclosure in the pre-trial context is generally regarded as final. See Ritchie, 480 U.S. at 59; United States v. Ramos, 27 F.3d 65, 71 (3d Cir. 1994).[18]
[18]Thus, the defendant may not require the Court to search through the government's files in camera in the pre-trial context without first establishing a basis for his claim that the file contains evidence that would satisfy the materiality standard of Brady. See Ritchie, 480 U.S. at 58 n.15. The defendant does not have a constitutional right to know the complete contents of the government's files in order to present arguments in favor of disclosure. See Ritchie, 480 U.S. at 59; United States v. Dent, 149 F.3d 180, 191 (3d Cir. 1998), cert. denied 525 U.S. 1085 (1999); Leung, 40 F.3d at 583.
At this early stage of the proceedings, therefore, an order identifying generic categories of material as falling within Brady would be inappropriate.[19]
[19] For the record, the government objects to the various categories of information sought under the Brady umbrella in the defendant's motion. Should the Court disagree with the government's view that a Brady Order should not be entered in the pre-trial context, the government respectfully requests leave to file specific objections to the seven items listed in the defendant's motion.
WHEREFORE, for the reasons set forth above and any others appearing to the Court, the defendant's pre-trial motions should be denied.
Respectfully submitted,
DAVID C. WEISS
Acting United States Attorney
BY:
Keith M. Rosen
Shannon T. Hanson
Assistant United States Attorneys
Dated: August 5, 2009
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Doc 47 OCR extract - part 5
Market Data 
Markets 
AI
