08/24/2009 52 REPLY To Plaintiff's Omnibus Response To Defendant Mangiapane's Pre-Trial Motions (see 47 Response to Motions) filed by Joseph Mangiapane, Jr. (nms) (Entered: 08/25/2009)
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DEFENDANT JOSEPH MANGIAPANE, JR.'S REPLY TO PLAINTIFF'S OMNIBUS RESPONSE TO DEFENDANT MANGIAPANE'S PRE-TRIAL MOTIONS
COMES NOW the Defendant, Joseph Mangiapane, Jr., and replies to the Plaintiff's Omnibus Response to Defendant Mangiapane's Pre-Trial Motions (D.I. 47).
As noted by the Plaintiff, Mr. Mangiapane also filed a companion Motion for Leave to File Motions to Compel Discovery (D.I. 40), which the prosecution does not oppose. See Response, page 2, paragraph 2.
The prosecution does note that Local Rule 5(d)(2) requires the movant to confer with the opposing party before filing discovery motions.[1] The prosecution seeks no sanction for Mr. Mangiapane's oversight in not conferring with the opposing party. Nevertheless, Mr. Mangiapane brings the following to the Court's attention.
A. Before the arraignment, counsel for Mr. Mangiapane asked the prosecutor present to arrange a meeting between Mr. Mangiapane and the prosecutors to discuss all aspects of the case against Mr. Mangiapane. Counsel was told by the prosecutor that "we have nothing to speak to Mr. Mangiapane about."
[1]See also, Response, page 19, FN 10.
B. The local rule is a ministerial procedural requirement which was enacted to govern attorney practice of filing late discovery motions and should not be applied where Defendant is pro se and where, nevertheless, Defendant's discovery motions were timely filed.
C. In light of the fact that prosecution has chosen to oppose all of Mr. Mangiapane's discovery motions, it is unlikely that the prosecution would have agreed to any of Mr. Mangiapane's requests in any case.
Nevertheless, Mr. Mangiapane does apologize to the prosecution and to the Court for any inconvenience his oversight might have caused. In the future he will make every effort to follow the Local Rules as would any party to any action in the District of Delaware.
I. FACTUAL ALLEGATIONS
A. The Second Superseding Indictment
The prosecution informs the Court that there are a number of "related indictments" pending before this Court. Response, page 2, FN 1.
Mr. Mangiapane is unaware of any other indictments pending against him anywhere. If there are, they are secret. If Mr. Mangiapane is not named as a defendant in any "related indictment" this Court should ignore the prosecution's irrelevant reference to all such pending indictments.
B. Discovery
The prosecution claims that consistent with its long-standing policy, the prosecution expects to provide discovery in excess of its obligations under Rule 16, Brady, and the Jencks Act_ Response, page 4, paragraph 3.
The prosecution's longstanding policy, and its expectations, are of no consequence to Mr. Mangiapane. The quantity of discovery is of little importance_ What matters is the timing and quality of discovery; issues raised by Mr. Mangiapane in his Discovery Motions.
The prosecution claims to have already produced 6 DVD's containing tens of thousands of pages of documents, and expects to produce 20,000 additional pages, to "other defendants in this and related cases." Response, page 4, paragraph 3.
Again, what may or may not have been produced to others, especially to others in cases other than the present case, is of little or no consequence to Mr. Mangiapane. As of the date of this Reply, the prosecution has not provided Mr. Mangiapane with copies of the documents mentioned in the prosecution's Response.
The prosecution makes mention of a proposed Protective Order. Response, page 5, paragraph 1.
It should be noted that Mr. Mangiapane agreed to the terms and signed the proposed Order several weeks ago. On August 17, 2009, the Proposed Order was filed herein. (D.I. 48). In light of the fact that Mr. Mangiapane has not waived his speedy trial rights, Mr. Mangiapane requests that this Court not allow the prosecution to drag its heels relative to the provision of discovery. In fact, dragging its heels appears to also be a "long standing policy" of the prosecution when it comes to providing discovery. This, however, gives the defense less time to review, investigate, and prepare for trial while the prosecution has had the luxury of years. This borders on an intentional disregard or conscious indifference to the defendant's procedural and constitutional rights to due process and for a fair trial protected by the Fifth Amendment.
IL ARGUMENT
A. The Defendant's Motion for Disclosure of Informants should be Granted.
Not unexpectedly, the prosecution refuses to acknowledge or divulge the names of confidential informants. Response. pages 5 - 8, FN 2. Further, the prosecution claims that the Indictment herein makes no mention of confidential informants." Response, page 5, paragraph 3. The prosecution does acknowledge that the Indictment is rife with references to individuals identified only by pseudonyms. The prosecution explains this by stating that it is -common practice" for the prosecution not to refer to unindicted third parties by name.
The prosecution agrees with Mr. Mangiapane that Rovario v. US, 353 U.S. 53 (1957) controls defendants' requests for confidential informant information, and the fact that this Court has discretion for determining whether Mr. Mangiapane's right to prepare a defense outweighs the public's interest in protecting the flow of information which confidential informants provide. Response, page 5, paragraph 4 through page 6, paragraph 1.
While the prosecution does agree that Mr. Mangiapane is entitled to a litany of information about informants who may be called at trial, including the number of cases in which the informant has been involved, the informant's prior convictions and prior arrests, information concerning misconduct relative to candor, copies of writings between the informant and the prosecution relative to agreements between the parties, agent's reports and related documents, information regarding money paid to the informant. and materials required to be produced by the Jencks Act, the prosecution states that it will only provide Mr. Mangiapane with such information and material, no later than one week before trial. Response, page 7, paragraph 2.
The prosecution relies, in part, on U.S. v. Grant, 256 F.Supp. 2d 236, 243 (D.Del. 2003) to support the proposition that this Court should not require prosecution to reveal the existence or identify of confidential informants until one week before trial. Response, page 6. paragraph 3.
In Grant, the Court denied the Defendant's request for the early release of such information and for a pre-trial interview of the confidential informants because "of the risk of potential harm to the CI as evidenced by the alleged pre-arrest conduct of Defendants." Grant, Id, at 245.
In the case at bar, there has been no misconduct on the part of Mr. Mangiapane relative to any other defendant, any defendant in any related case, any person named or unnamed in any indictment or civil matter related to the instant case, to any law enforcement officer, to any judicial officer, or to anyone else even remotely related to this case or any other case. Therefore, the prosecution's reliance upon Grant is misplaced, and the Court should require the prosecution to reveal the names of any confidential informant upon whom it relied to bring the case against Mr. Mangiapane and grant Mr. Mangiapane the right to inspect the materials identified by the prosecution as materials it will be required to provide, and will provide, one week before trial, forthwith.
Likewise, the prosecution relies upon US v. Beckett. 889 F.Supp. 152 (D.Del. 1995). Response, page 6, paragraph 3.
According to Beckett, the prosecution has a "limited right" to withhold discovery, and only then to protect the public interest. However, the prosecution is under a duty to volunteer evidence favorable to an accused or "obviously of such substantial value to the defense that elementary fairness requires it to be disclosed." Beckett, Id, at page 143.
In Beckett the prosecution argued that one of the defendants has a long criminal history including convictions for assault, and is lacing a maximum sentence of life in prison, the safety of the informants is at risk if such identifying information is revealed.." Beckett. Id. at page 145.
Again, Mr. Mangiapane has no criminal history, has never been convicted of any crime, much less assault, and he is not facing life in prison. The prosecution has made no showing, indeed no argument, that any confidential informant would be threatened if Mr. Mangiapane were to learn the identify of any such informant, or if Mr. Mangiapane were to receive the documents and materials in question sooner than one week before trial.
Mr. Mangiapane does have to show that the identify of the informants, and the materials requested are necessary to his defense. To that end, the Court should know that the case against Mr. Mangiapane will be built entirely upon e-mails and other communications between parties not including Mr. Mangiapane, in which Mr. Mangiapane's name was mentioned in varying contexts. Mr. Mangiapane is unaware of any incriminating e-mail or communication existent anywhere, including in the possession of the prosecution. Therefore, it will be incumbent upon the prosecution to build its entire case upon informants or other third parties. Given that fact, it will be impossible for Mr. Mangiapane to construct a defense without the timely disclosure of confidential informants and the requested materials.
If any confidential informant was present, or can give eye witness testimony of any overt act in which Mr. Mangiapane is actually named, the identify of such confidential informant, and the nature of his testimony will be crucial to Mr. Mangiapane's defense. Further, without such knowledge, Mr. Mangiapane cannot formulate, or even be made aware of the existence of, an alibi defense. Mr. Mangiapane cannot know whether or not any such individual could provide exculpatory evidence. Absent some showing by the prosecution that the public interest outweighs Mr. Mangiapane's right to prepare a defense, this Court should require the prosecution to provide the requested information forthwith. Anything less would seriously damage Mr. Mangiapane's Fifth Amendment right to due process and a fair trail.
Finally, the prosecution seeks to withhold the identity of "mere tipsters -- or informants who were less than active participants in the offense conduct. Response, page 8, paragraph 2.
Again, the prosecution does not show how revealing the identity of "tipsters would jeopardize the public interest. Given the lack of any evidence beyond that provided in the above mentioned third party communications, it will be impossible for Mr. Mangiapane to prepare a defense unless he is made aware of the identities of any and all parties who disseminated statements about Mr. Mangiapane to third parties.
B. Mr. Mangiapane's Motion for a List of Witnesses Not being Called at Trial should be granted.
The prosecution acknowledges that the Court has the discretion to order the production of the prosecution's witness list. Based on the prosecution's custom, and absent a Court Order to the contrary, it will voluntarily provide the list at the time of jury selection, but not before. Response, page 9, paragraph 3.
Mr. Mangiapane had relied upon United States v. Cadet, 727 F.2d 1453 (9' Cir. 1984) in his request for the prosecution's list of witnesses not being called at trial. The Cadet Court required the government to disclose the names and addresses of each person who had personally observed the alleged crimes, even if the prosecution did not intend to call those people as witnesses. Response, page 9, paragraph 3.
The prosecution claims that this Court, in US v. BoIta, 513 F.Supp. 444, 502 (D. Del. 1980) specifically rejected identical reasoning in Cadet.
Actually, Cadet holds that even though in the circumstances of the Cadet case the defendant's request was too broad, the prosecution always has the duty of disclosing exculpatory evidence under Brady and Agurs.
In the case at bar Mr. Mangiapane's request is not too broad. If the government has any witnesses at all who personally observed the commission of any crime by Mr. Mangiapane, the testimony of any such witness would be false. In order to impeach any such witness, in order to establish an alibi relative to any such testimony, or in order to prove any incriminating statements by any such witness false, Mr. Mangiapane will require time to research and investigate any such persons claim.
Therefore, Mr. Mangiapane respectfully requests that the Court order the prosecution to disclose all alleged eyewitnesses who are not going to testify at trial -- particularly those who claim that they are eyewitnesses.
C. The Court should grant Mr. Mangiapane's Motion for Jencks Act Materials in advance of Trial.
The prosecution asserts that since it intends to provide Jencks Act materials to Mr. Mangiapane no later than three business days before trial, Mr. Mangiapane's Motion for Jencks Act Materials in Advance of Trial should he denied as moot. The prosecution reserves for itself the right to determine whether or not the release of any such material would jeopardize the safety of a witness. Response, page 10, paragraph 2.
Since the prosecution intends to provide Jencks Act materials three days before trial anyway, the prosecution should not object to an Order requiring such production. Without an Order, Mr. Mangiapane will be handicapped in the event the Prosecution does not adhere to its policy, or in the event the prosecution determines that Mr. Mangiapane represents a threat to any witness.
D. Mr. Mangiapane's Motion for Production of Grand Jury Testimony Incorporating any Trial Witness's Statements Through an Intermediary Should be Granted.
The prosecution argues that the Jencks Act does not require the prosecution to provide grand jury testimony of witnesses who do not testify at trial if such a grand jury witness's testimony incorporates the hearsay statements of a government trial witness. Response, page 1I, paragraph 1.
In making its argument, the prosecution relies, in part, upon US v. Spurell, 245 Fed.Appx.127 (3rd Cir. Aug. 17, 2007). Response, page 11, paragraph 3.
Notwithstanding the fact that Suprell is an unpublished opinion, and therefore not controlling, it is interesting to note that in Spurell none of the witnesses who testified at trial testified before the grand jury. including the ATF aaent who was the subject of the Defendant's claim. There is no allegation in Suprell that the ATF agent had provided hearsay evidence of a government trial witness. What Suprell sought was evidence of statements made by the arresting officers (who did testify at trial) to the ATF agent. No allegation is made in Suprell that the defendant sought to cross examine the arresting officers strictly on hearsay evidence as reported by the ATF agent to the grand jury. It is also interesting to note that the trial court made its ruling only after an in camera review of the evidence. The trial court would have reviewed the evidence for Brady material. Response, page 12, paragraph 2. Suprell, Id. at 129. US. v. Brady, 373 U.S. 83 (1963).
The prosecution also relies upon US v. Murphy, 786 F.2d 1518 (7th Cir. 1985). Response, page 12, paragraph 2. While Murphy does support the prosecution's argument, the Court in Murphy warned that a defendant may challenge the indictment itself, before trial, if it can be shown that the prosecution misled the grand jury about the quality of the (hearsay) evidence it was hearing. Murphy, Id. at 1533-1544.
In the case at bar, Mr_ Mangiapane requests that the Court receive any such grand jury transcripts in camera, review said transcripts for Brady material, and/or for evidence supporting the preposition that the prosecution mislead the grand jury about the quality of any hearsay evidence presented to the grand jury, prior to entering a final order on Mr. Mangiapane's Motion.
E. Mr. Mangiapane's Motion for Discovery of the Grand Jury Minutes Should be Granted.
The prosecution states that to the extent Mr. Mangiapane seeks grand jury minutes required to be produced under Fed.R.Crim.P. 16, the Jencks Act, and/or Brady/Giglio, the prosecution will comply with its obligations, at an appropriate time. To that extent, the prosecution urges the Court to deny Mr. Mangiapane's Motion as moot. Response, page 13, paragraph 2.
Again, the prosecution should not object to an Order requiring such production. Without an Order, Mr. Mangiapane will be handicapped in the event the prosecution does not adhere to its stated intentions.
Further, so as not to delay the orderly progress of the trial and in the interest of providing Mr. Mangiapane the opportunity to prepare for trial, Mr. Mangiapane requests that any such material to be produced, be produced well in advance at trial.
Otherwise, the prosecution makes the argument that Mr. Mangiapane must demonstrate a particularized need for the material. As noted by the prosecution, Mr. Mangiapane does not disagree with this argument. Response, page 14, paragraph 2.
Unfortunately, the prosecution was unable to discern a "particularized need" articulated in Mr. Mangiapane's Motion. Page 15, paragraph 3.
The prosecution goes on to allege that Mr. Mangiapane's Motion argues that since most of the alleged overt acts do not name him, the grand jury got it wrong. Response, page 15, paragraph 3.
The prosecution misstates Mr. Mangiapane's argument completely. What Mr. Mangiapane actually argued was "since all intentions deduced by the Grand Jury clearly were the result of intentions attributed to Defendant Mangiapane by others, it is likely that the Grand Jury got it wrong." Motion, page 4, paragraph 2.
The overt acts, as charged in the indictment, are based on allegations as to Mr. Mangiapane's intentions as described to the grand jury by others. Since Mr. Mangiapane did not testify before the grand jury, no other conclusion can be drawn.
Likewise, the prosecution misstates Mr. Mangiapane's Motion when it states that "[Mangiapane] cites a number of the paragraphs of the indictment which refer to overt acts performed by his alleged co-conspirators and asserts, without foundation, that it is probable that the grand jury attributed "intentions" to Mangiapane based on acts by others. Response, page 15, paragraph 3 through page 16, paragraph 1.
Mr. Mangiapane did not cite "a number of...the overt acts performed by his alleged co-conspirators" as alleged by the prosecution. Rather, Mr. Mangiapane cited all of the alleged overt acts naming Mr. Mangiapane specifically. Motion, page 2, paragraph 4.
Since no actual criminal acts are alleged in any of the paragraphs of the indictment describing Mr. Mangiapane's alleged overt acts, the inference that such acts were meant to further a criminal conspiracy could only have come from the testimony of grand jury witnesses who attributed a criminal intent to Mr. Mangiapane.
Without allegations regarding Mr. Mangiapane's criminal intent relative to the overt acts charged in the indictment, the indictment could not even remotely be read to allege any criminal act of any kind by Mr. Mangiapane. Therefore, Mr. Mangiapane has demonstrated a particularized need for inspection of the grand jury minutes. See Dennis v. U.S, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973.
F. The Court should schedule a Pre-trail Conference.
Mr. Mangiapane has requested, and the prosecution does not object to a pretrial conference in this matter. Mr. Mangiapane did request a Pre-trial Conference at least 30 days before trial. The prosecution relies upon the Court for the timing of any such Pre-trial Conference. Mr. Mangiapane would not presume to dictate the timing of the Pre-Trial Conference, in the event the Court agrees to conduct such a conference. Mr. Mangiapane would only argue that a Pre-Trail Conference would have more value if held well before the trial date. Response, page 18, paragraph 1.
The prosecution does object to Mr. Mangiapane's request that the prosecution be forced to provide a record as to what efforts the prosecutor has made to search for the items requested by the Defendant. Response, page 18, paragraph 3.
Rule 17.1 of the Federal Rules of Criminal Procedure grants the court the power to hold pretrial conferences, "to consider such matters as will promote a fair and expeditious trial." U.S. v. Cola, 719 F.2d 1120, 1123 (C.A.Fla.,1983).
Since it is clear from the indictment herein that the only evidence to be presented against Mr. Mangiapane will be evidence where others will ascribe criminal intent to otherwise legal activities conducted by Mr. Mangiapane, the only way a fair and expeditious trial can be had in this case is under circumstances where both the Court and Mr. Mangiapane can be certain that the prosecution has done all it can to ensure that the prosecution has complied with all of the requirements imposed by Fed.R.Crim.P. 16, the Jencks Act, and/or Brady/Giglio, and or any pre¬trial discovery motion the Court may grant. See U.S. v. Westmoreland, 41 F.R.D. 419
(S.D.Ind., 1967) (disclosures from either side at a pretrial conference must be kept on a voluntary basis except as provided in Rule 16 or pursuant to a valid order otherwise) (emphasis provided).
G. Mr. Mangiapane's Motion for a Bill of Particulars should be granted.
1. Applicable Law
The prosecution correctly states that Mr. Mangiapane was incorrect when he states that called GH3 conspiracy. Response, page 19, FN 9. Prosecution is correct, and Mr. Mangiapane regrets his error.
The prosecution claims that the securities fraud conspiracy counts (Counts I and 6) detail the alleged manner and means, and allege eighteen and twenty-one overt acts respectively and that the money laundering conspiracy counts (4 and 9) identify and allege eight and eleven overt acts respectively. Response, page 19, paragraph 1.
What the prosecution does not make clear is the fact that of the overt acts described in Count 1 of the Indictment, Mr. Mangiapane is named in only one such overt act. See Count 1(b) of the Indictment. This allegation states that Mr. Mangiapane met with Dynkowski, Riviello, and others in October, 2006, to plan the scheme. While a date is certainly given, there is no mention of where the meeting took place, or whether the meeting took place in person or via some form of electronic communication. Since Mr. Mangiapane's supposed involvement in this conspiracy rests solely and entirely on this one allegation, it is imperative that Mr. Mangiapane be made aware of the particulars of this meeting, especially the location and means of the meeting, so that he can plan and prepare for trial. Without such information, it will be impossible for Mr. Mangiapane to investigate the claim, to prepare an alibi defense, or to subpoena witnesses to rebut the prosecution's claims of misconduct. It is not enough to simply guarantee his right to confront witnesses, it is essential that Mr. Mangiapane has the time and opportunity to present witnesses in his own defense. The prosecution's "long standing practices" of dilatory presentation of discovery and names of witnesses thwarts the defense ability to realistically exercise this constitutionally guaranteed right.
Likewise, Mr. Mangiapane is named in only one overt act in Count 4 of the indictment. See Count 4(g) of the indictment. This allegation states that on or about January, 2007, Mr. Mangiapane received $220,000 in cash proceeds from the sale of GH3 shares, a portion of which proceeds were ultimately intended for "M.B." and Dynkowski. Where did Mr. Mangiapane receive this cash? How did he receive the cash? How did the prosecution deduce Mr. Mangiapane's "intention." Again, without knowing the details of the alleged transaction, i.e. where and how this exchange allegedly took place, it will be impossible for Mr. Mangiapane to prepare for trial.[2]
[2] It is interesting to note that Count 4g of the indictment alleges Mr. Mangiapane's "intent" regarding his alleged receipt of 5220,000. Since all intentions deduced by the Grand Jury clearly were the result of intentions attributed to Defendant Mangiapane by others, it is likely that the Grand Jury got it wrong." See argument under Section E above.
Mr. Mangiapane is named in three overt acts in Count 6 of the indictment. See Counts 6(g)(q) and (t) of the indictment. These counts allege that Mr. Mangiapane bought and sold or directed others to buy and sell shares of Asia Global Stock between various dates in 2006 and 2007 from the 2005, 2006 and 2007 Plan Participant's accounts. No mention is made of where these acts occurred, or by what means Mr. Mangiapane allegedly bought and sold these shares. How did Mr. Mangiapane direct "others." Who are these others? Without such information, it will be impossible for Mr. Mangiapane to prepare for trial.
Mr. Mangiapane is named in several overt acts in Count 9 of the indictment. See Counts 9(a)(e)(f) and (g). Mr. Mangiapane shall address each in turn.
Count 9(a) alleges that Dynkowski sent an instant message to "M.B." about discussions with defendant Mangiapane about how Dynkowski would be paid a sum of money. This overt act does not even allege an act by Mr. Mangiapane.[3] The allegation does not even make clear who had the alleged discussions with Mr. Mangiapane. Was it Dynkowski? Was it M.B.? Both? Where did these discussions occur'? When did they occur?
[3]Again, someone else is purporting to devine Mr. Mangiapane's "intention."
Count 9(e) alleges that AIS sent a lax to North American Clearing, Inc. requesting that checks he sent to the attention of Mr. Mangiapane. Who sent the fax? Who received the fax? Did Mr. Mangiapane allegedly send the lax? Was it a third party? If, so who?
Count 9(f) alleges that Dynkowski and "M.B." communicated by instant message about alleged discussions with Mr. Mangiapane and "M.M." about how Dynkowski would be paid. Again, who had the discussions being discussed in the instant messages? Did Mr. Mangiapane allegedly have discussions with Dynkowski? M.B.? M.M.? Two of the three? All three?
Count 9(g) alleges that Mr. Mangiapane traveled to Costa Rica with Dynkowski and M.B. for the purpose of establishing an off-shore account to hide Dynkowski's money.[4]
[4]Again, someone else is purporting to devine Mr. Mangiapane's "intention."
Without additional information regarding the overt acts alleged in Count 9, it will be impossible for Mr. Mangiapane to properly prepare for trial.
The prosecution avers, and Mr. Mangiapane concurs, the granting of a Motion for Bill of Particulars falls within the Court's discretion. Response, page 19, paragraph 3
The prosecution also avers, and Mr. Mangiapane concurs, that Motions for Bills of Particulars are not to be used as discovery devices. Response, page 20, paragraph 2. Instead, they are to be used to secure the minimum amount of information necessary for a defendant to conduct his own investigation of the facts alleged. Without allegations of time and place, any such investigation would be futile.
In the instant case, the Mr. Mangiapane"s Motion for Bill of Particulars does not ask for evidence of any kind. Instead, it asks for facts. When? Where? How? Once the prosecution makes it clear in the indictment what its allegations are, Mr. Mangiapane can turn to his own investigation as to the facts alleged. For example, if Mr. Mangiapane was in New York at the time the prosecution claims he was in California holding a meeting, it will require time and effort to investigate and develop the alibi. Without a clear statement in the indictment, any such investigation will be impossible. See U.S. v. Smith, 776 F2d 1104, 1111 (3' Cir. 1965) as cited in Response, page 21, paragraph 1.
The prosecution claims that the Court can look to the indictment and "information that otherwise has been made available to the defendant" in determining whether or not to grant a Motion for Bill of Particulars. Response, page 21, paragraph 3 citing U.S. v. Mariana, 90 F.Supp_2d 574 (M.D. Pa. 2000).
The prosecution makes no allegation that Mr. Mangiapane has been provided with information outside the indictment which make a bill of particulars unnecessary. And, in fact, while he may eventually receive sufficient discovery to flesh out the allegations against him, he has not received such information to date. And, based upon the prosecution's statement that it intends to serve tens of thousands of pages of discovery on Mr. Mangiapane at some date in the future, it appears that any such information could be buried deep in papers that may or may not have any relevance to Mr. Mangiapane. Therefore, in order to avoid any "needle in the haystack" tactic by the prosecution, an Order for Bill of Particulars would be appropriate.
2. The Indictment is not Sufficient on its Face
The prosecution relies heavily on U.S. v. Almadovar, 1996 WL 700267 (D.Del. Nov. 26, 1996)[5] to support the proposition that there is no significant need for a bill of particulars in this case. Response, page 22, paragraph 2.
[5]This case is an unpublished opinion, and therefore not controlling.
In Almadovar, the defendant asked for "exact dates and times or dates or periods of time when he allegedly conspired to distribute crack and cocaine. Response, page 22, paragraph 3, citing Almadovar, Id. at 3 - 4.
In the case at bar, Mr. Mangiapane is not asking for exact dates and times. Where general dates or time frames are given, Mr. Mangiapane is satisfied.[6] However, where no date is given, or where the place or means of various meetings is completely ignored, Mr. Mangiapane requires at least enough information to investigate the alleged meetings to determine whether or not he even attended said meeting. Without so much as a hint as to the city, state, or even the country where such meetings allegedly occurred, it will be impossible for Mr. Mangiapane to investigate the alleged meetings, or to form a defense to his alleged criminal intent in participating in any such meetings.
[6]Mangiapane concedes that in most instances the dates and time frames stated in the indictment are satisfactory. However, where no time frame is given, or where the places and/or means of the meeting are ignored completely, the Court should require the prosecution to at least provide generalized information regarding Mr. Mangiapane's alleged participation in the conspiracies charged in the indictment.
3. Mr. Mangiapane's Specific Claims are Meritorous
As an example of the prosecutions claim that it has provided adequate information in the indictment, it points to the following language:
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 G113 via a market manipulation scheme. Response, page 24, paragraph 1.
The prosecution goes on to claim that it need not even prove that such meeting ever took place, only that two or more persons made an agreement to accomplish a common and unlawful objective. Response, page 24, paragraph 2 and FNS 13 and 14 relying upon Third Circuit Model Jury Instructions 6.18.371C and F.
Taken to its extreme, the prosecution's argument is preposterous. If Mr. Mangiapane never knowingly and intentionally joined in the conspiracies alleged in the indictment, Mr. Mangiapane cannot be convicted. See Third Circuit Model Jury Instruction 6.18.371D (If you find that a criminal agreement or conspiracy existed, then in order to find [the defendant] guilty of conspiracy you must also find that the government proved beyond a reasonable doubt that [the defendant] knowingly and intentionally joined that agreement or conspiracy during its existence).
As another example, the prosecution's claim that paragraph 16(g) of the indictment provides sufficient details alleging money laundering. Paragraph 16(g) of the indictment claims that Riviello delivered $220,000 to Mr. Mangiapane in January, 2007, that the money represented the proceeds from the sale of GH3 shares, and that a portion of that money was ultimately intended [7] for M.B. and defendant Dynkowski. Response, page 25, paragraph 2.
[7]Yet another instance where the grand jury ascribed Mr. Mangiapane's "intent" to Mr. Mangiapane based upon some witnesses' opinion.
Again, where did this delivery occur? How can Mr. Mangiapane adequately investigate this claim without an allegation as to where this meeting occurred?
Finally, the prosecution claims that Mr. Mangiapane has misunderstood Count 8. Response, page 25, paragraph 3 and FN 16.
That Mr. Mangiapane misunderstands Count 8 is a testament to the inadequacy of the framing of Count 8. The prosecution now says that Count 8 alleges that "the interstate electronic communication was sent on August 24, 2006, via America On Line, as if this communication is something different than the "press release" mentioned in preceding sentences. Response, page 25, paragraph 3 through page 26, paragraph 1. Was this "interstate electronic communication" the actual press release also described in Count 8, the actual allegedly false press release also mentioned in Count 8, or some other communication? And, if it was some other communication., did it reference the press release? And, if Mr. Mangiapane was not a party to this communication, how is it that the prosecution intends to show that Mr. Mangiapane intended for the press release, or the communication, if it was not the press release or comments about the press release, to be used in the furtherance of any criminal activity?
According to the prosecution, it need not prove that Mr. Mangiapane actually used a wire in interstate commerce, or that he intended that anything be transmitted in interstate commerce. Response, page 26, FN 17.
In order to secure a conviction, the prosecution must, however, prove that Mr. Mangiapane knowingly and intentionally joined in the criminal activity described in the indictment. Count 8, as written, simply does not provide Mr. Mangiapane with sufficient information to form a defense to the allegations contained therein.
The above examples given by the prosecution to illustrate its claim that the indictment gives Mr. Mangiapane sufficient information in the indictment to support an investigation the allegations, or to frame a defense actually illustrates the opposite. That is, without some information as to where and how the alleged meeting took place, Mr. Mangiapane has insufficient information to investigate his whereabouts at the time he allegedly participated in the meeting, who else might have been present, whether or not others present agree with those who testified before the grand jury that Mr. Mangiapane actually formed criminal intent at the alleged meeting, etc. At the very least, this Court should require the prosecution to provide the basic information surrounding each alleged meeting, that is when it occurred, where it occurred, how it occurred, and who allegedly participated in the alleged meeting. Anything less would fail Constitutional muster and preclude Mr. Mangiapane from receiving a fair trial.
H. Mr. Mangiapane's Motion for Production of Evidence Favorable to the Accused should be granted.
The prosecution argues that Mr. Mangiapane's Motion for Production of Evidence Favorable to the Accused should be denied as moot insofar as it alludes to Brady material since the prosecution fully intends to provide such material. Response, page 27, paragraph 1.
Again, since the prosecution fully intends to disclose such material, it should not object to an order. This is especially true insofar as the seven specific categories of evidence requested by Mr. Mangiapane is concerned. Motion, pages 1 - 4.
The prosecution argues that generic requests for Brady material should be denied unless Mr. Mangiapane can show that he has been denied specific Brady material. Response, page 27, paragraph 2.
The prosecution does not disclose which of Mr. Mangiapane's requests it deemed "generic." Once discovery commences in this case, Mr. Mangiapane will certainly bring any specific requests for discovery to the attention of the prosecution and the Court.
The prosecution utterly ignores all of Mr. Mangiapane's arguments relative to Federal Rule of Evidence 405, Federal Rule of Evidence 406, Federal Rule of Evidence 803(21), Federal Rules of Criminal Procedure 6(e) and 16, United States v. Bagley, 473 U.S. 667 (1985), and Giglio v. United States, 405 U.S. 150 (1972).
Therefore, and in the interest of ensuring that the prosecution meets its obligation to disclose exculpatory evidence, this Court should enter an order requiring the prosecution to disclose all exculpatory evidence.. See U. S. v. Agurs 427 U.S. 97 (1976) and US. v. Brady, 373 U.S. 83 (1963).
Respectfully submitted,
JOSEPH MANGIAPANE, JR.,
28002 Loretha Lane
Laguna Niguel, CA 92677
Telephone: (949) 632-8478
Defendant, Pro Se
Dated: 8/22/09
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