09/14/2009 54 MOTION to Dismiss Indictment Due To Misconduct Occurring Before The Grand Jury by Joseph Mangiapane, Jr.. (Attachments: # 1 Exhibit 1 -10, # 2 Exhibits 11-25, # 3 Exhibits 26-36, # 4 Exhibits 37-38, # 5 Exhibits 39-43)(nms) (Entered: 09/15/2009)
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Doc 54 OCR extract
Part 1
DEFENDANT JOSEPH MANGIAPANE, JR.'S MOTION TO DISMISS INDICTMENT DUE TO MISCONDUCT OCCURRING BEFORE THE GRAND JURY.
INTRODUCTION
Defendant, Joseph Mangiapane, Jr., representing himself pro se, hereby moves this Court for an Order to dismiss the indictment due to misconduct occurring before the grand jury. Mr. Mangiapane basis his motions on allegations of misconduct occurring before the grand jury (failure to present certain evidence).
Please take note that Mr. Mangiapane has previously filed a Motion For Production Of Grand Jury Testimony Incorporating Any Trial Witness's Statements Through An Intermediary (D.I. 38) and a Motion For An Order Permitting Defendant To Inspect The Minutes Of The Grand Jury That Returned The Instant Indictment (D.I. 39).
STATEMENT OF FACTS
The basis of much of the prosecution's evidence in this case flows from information gained by the prosecution from the search of Matt Brown's home.[1] The search warrant to search Mr. Brown's home was based upon information received from an individual named Justin Woods[2] and included in an affidavit executed on February 11, 2007.
There were various mistakes in the affidavit authorizing the search warrant, as follows:
A. The affidavit claims that Woods told Sgt. Luciano that the currency given to him was illegal money, but "he does not have any knowledge as to where the money came from." Exhibit 1; Statement of Probable Cause, page 5, paragraph 2.
In a subsequent interview, Mr. Woods was asked whether the money was legal, and he said "not to my knowledge." Mr. Woods was asked whether or not it was drug money, and Mr. Woods answered "No."[3]
[1] Based upon information and belief, "M.13. in the indictment is Matt Brown. See, e.g., Second Superseding Indictment, page 2, paragraph 6.
[2]Based upon information and belief, "Person A" in the indictment is Justin Woods. See, e.g., Second Superseding Indictment, page 10, paragraph 16(h).
[3] This allegation is based upon information provided to Mr. Mangiapane from Mr. Brown relating to a letter addressed to Beth Moscow-Schmoll, AUSA from Mr. Brown's previous attorney, James D. Henderson, in approximately March or April, 2007. At this time, Mr. Mangiapane does not have possession of said letter, but expects to receive a copy of the letter from the prosecution in discovery, or, if necessary, via a subpoena.
B. In addition, the affidavit claims that Mr. Woods had been hired by Mr. Brown "to fly to California specifically for a driving job that BROWN said was for MANGIAPANE." Exhibit 1; Statement of Probable Cause, page 4, paragraph 3.
In a subsequent interview, Mr. Woods said that this statement was "incorrect." Mr. Woods states that he did not say that the cash was being transported for Mr. Mangiapane.[4]
[4] See FN 3.
In late October, 2008, special agent Jeffrey Eastman from U.S. Immigration and Customs Enforcement, Homeland Security served a subpoena on Mr. Mangiapane at Mr. Mangiapane's office, requiring Mr. Mangiapane to appear and testify before the grand jury on November 13, 2008. Exhibit 2; Subpoena.
That day, Mr. Mangiapane contacted his attorney, Elizabeth Lowery, to contact Shannon T. Hanson, AUSA relative to the above mentioned subpoena.
The following day, Ms. Lowery telephoned Mr. Mangiapane and stated that she had spoken to Ms. Hanson, and informed Ms. Hanson that Mr. Mangiapane wished to cooperate with the prosecution, and that he specifically wanted to testify before the grand jury.
On or about October 31, 2008, Ms. Lowery asked Ms. Hanson if Mr. Mangiapane could give his testimony to the grand jury via video conference at the Santa Ana (California) Federal Building due to Mr. Mangiapane's work load and the expense of traveling to Delaware. Ms. Hanson agreed, and said that after Mangiapane testified via the proffer the Government would then have a meeting with Mr. Mangiapane to determine whether he would be required to testify before the Grand Jury in Delaware. In a subsequent e-mail, Ms. Lowery asked Ms. Hanson whether Mangiapane was a target or a subject, and Ms. Hanson replied by e-mail, Mr. Mangiapane was a subject.
Thereafter, Ms. Lowery and Ms. Hanson engaged in a series of conversations and e¬mail communications in an effort to establish a date for Mr. Mangiapane to meet with the prosecution and to testify before the grand jury. Mr. Mangiapane offered to meet with the prosecution and testify on December 3, 8 or 9, 2008. Ms. Hanson could not meet on December 3, but confirmed to meet on December 8, 2008. On the evening of December 7, 2008, Ms. Hanson telephoned Ms. Lowery and cancelled the proffer. A discussion of the entire communication between Ms. Lowery and Ms. Hanson follows:
A. Ms. Lowery confirms that she and Ms. Hanson have agreed that Mr. Mangiapane would voluntarily cooperate, and will provide a proffer instead of testifying in front of the grand, jury. Exhibit 3; E-mail dated October 31, 2008.
B. Ms. Lowery addresses an e-mail to Ms. Hanson in an effort to set a date for the proffer. Ms. Lowery also seeks to confirm that Mr. Mangiapane is not a target. Exhibit 4; E¬mail dated November 7, 2008.
C. Ms. Hanson replies regarding efforts to schedule the proffer, and confirms that Mr. Mangiapane is a subject rather than a target. Exhibit 5; E-mail dated November 8, 2008.
D. Ms. Lowery again addresses an e-mail to Ms. Hanson offering to make her office available for the proffer, and to arrange a hotel for Ms. Hanson. Exhibit 6; E-mail dated November 14, 2008.
E. Ms Hanson replies stating that the proffer could take place on December 1 through December 3, or possibly December 5, 2008. Exhibit 7; E-mail dated November 17, 2008.
F. Ms. Lowery addresses an e-mail to Ms. Hanson stating that she is available for the proffer on December 3, 2008 or December 8, 2008. Exhibit 8; E-mail dated November 17, 2008.
G. Ms. Hanson responds offering various dates.
H. Ms. Lowery responds and thanks Ms. Hanson for the dates offered. Ms. Lowery states that she will check with Mr. Mangiapane and get back to Ms. Hanson. Exhibit 9; E¬mail dated November 17, 2008.
I. Ms. Lowery addresses an e-mail to Mr. Mangiapane and offers various dates for the proffer, including December 3, 2009. Exhibit 10; E-mail dated November 17, 2008.
J. Mr. Mangiapane responds and states that December 3, 2009, is good. Exhibit 11; E-mail dated November 17, 2008.
K. Ms. Lowery responds and states she will give the December 3 date to Ms. Hanson. Ms. Lowery also inquires about December 8. Exhibit 12; E-mail dated November 17, 2008.
L. Ms. Lowery offers December 3, 2008, to Ms. Hanson. Additional conversation ensues and December 3, 2008 is chosen.
M. Ms. Hanson rejects December 3, 2008, and offers December 8, 2008. Exhibit 13; E-mail dated November 21, 2008.
N. Ms. Lowery informs Ms. Hanson that Mr. Mangiapane will calendar December 3, 2008. December 8 remains a possibility. Also other times between December 8 and 19 are available. Exhibit 14; E-mail dated November 21, 2008.
0. Ms. Lowery addresses an e-mail to Mr. Mangiapane and requests that Mr. Mangiapane identify dates of availability between December 9 and 19, 2008. Exhibit 15; E¬mail dated November 21, 2008.
P. Additional conversations between Ms. Lowery and Ms. Hanson are held. The parties agree to a December 8, 2008 date. Ms. Lowery informs Mr. Mangiapane that his proffer will be taken on December 8, 2008. Exhibit 16; E-mail dated November 24, 2008. (Language regarding attorney fees is redacted.)
Q. In anticipation of the agreed upon December 8 date, Ms. Hanson formally submits a proffer letter to Ms. Lowery. Exhibit 17; E-mail dated December 2, 2008.
R. Ms. Lowery informs Mr. Mangiapane that his proffer will be given on December 8, 2008. Ms. Lowery also presents proffer letter to Mr. Mangiapane. Exhibit 18; E-mail dated December 2, 2008. (Language regarding attorney fees is redacted.)
S. Ms. Lowery confirms date of proffer with Mr. Mangiapane. Exhibit 19; E-mail dated December 2, 2008.
T. Ms. Hanson backs out of December 8, 2008 date. Ms. Hanson offers January 14 or 15 as alternatives. Exhibit 20; E-mail dated December 9, 2008.
U. The parties all confer and agree to set aside January 14 or 15 for the proffer. Exhibit 21, E-mail dated December 9, 2008.
V. Ms. Hanson backs out of January 14 or 15, and suggests that Mr. Mangiapane's proffer be given the following week instead. Exhibit 22; E-mail dated December 16, 2008.
W. Ms. Lowery agrees to January 19, 20, 21, 28 or 29. Exhibit 23; E-mail dated December 16, 2008.
X. Ms. Lowery addresses an e-mail to Ms. Hanson and suggests January 19 or 20. Exhibit 24; E-mail dated December 16, 2008.
Y. Ms. Hanson states that "this is just getting ridiculous." Ms. Hanson rejects all dates prior to January 20, 2009, and suggests that Mr. Mangiapane's proffer be given the following week. Exhibit 25; E-mail dated December 18, 2008.
Z. Ms. Lowery states that she is checking and will get back to Ms. Hanson tomorrow. Exhibit 26; E-mail dated December 18, 2008.
AA. Ms. Lowery addresses an e-mail to Mr. Mangiapane. Mr. Mangiapane has been called to jury duty beginning January 22 or 23. Ms. Lowery is in trial in February and March. Ms. Lowery asks Mr. Mangiapane to make himself available the last week of January. Exhibit 27; E-mail dated December 18, 2008.
BB. Ms. Lowery and Ms. Hanson settle on January 26, 2009. Ms. Lowery asks Mr. Mangiapane to advance or postpone his jury duty so that he can give his proffer on January 26, 2009. Exhibit 28; E-mail dated December 31, 2008.
On December 4, 2008, in the midst of the discussions regarding a date for the proffer, Mr. Mangiapane, Ms. Lowery, and Ms. Hanson each executed the proffer letter. This proffer agreement was and is binding upon all parties to the agreement. Exhibit 29; Executed proffer letter dated December 2, 2008.
There was no further communication between any of the parties until May 20, 2009. At that time, federal agents entered Mr. Mangiapane's home, with guns drawn. The agents herded Mr. Mangiapane, his wife, and his two children into the living room, pointed their guns to the heads of the entire family, handcuffed Mr. Mangiapane, and turned Mr. Mangiapane over to Federal Marshals for transport to an arraignment. Twelve hours later, Mr. Mangiapane was released after posting bond.
Thereafter, Ms. Lowery telephoned Ms. Hanson to inquire why she was not notified that Mr. Mangiapane would be arrested, and as to why Mr. Mangiapane was not allowed to turn himself in rather than be arrested. Ms. Hanson stated that she was sorry, she did not know that Mr. Mangiapane was being arrested, and that the decision was made by those above her in rank. Ms. Hanson also stated that this is a "national case."
From the outset, that is from the time Mr. Woods was arrested, the Government's position was that this case was an organized crime case. For example, Antony Petrilla of the SEC sent an e-mail to Beth Moskow of the Attorney General's Office stating that there was an alleged Mafia connection to the case. Exhibit 30; E-mail dated May 16, 2007, paragraph 1. See also Exhibit 31; News story which suggests that the case is suspected to have ties to the Genovese crime family in New York. See also Exhibit 1; wherein it is suggested in the statement of probable cause that Mr. Mangiapane is connected to organized crime through his father.
It cannot be known at this time, of course, whether or not the prosecution tainted the grand jury with outrageous claims concerning Mr. Mangiapane and the Mafia. However, had Mr. Mangiapane been allowed to testify, he would certainly have denied any such connection. To the extent that the prosecution did taint the grand jury with these false and outrageous claims, the Court should require the prosecution to provide transcripts of any such claims, if the prosecution made any such claim to the grand jury, immediately dismiss this case.
As mentioned above, on November 8, 2008, Ms. Hanson specifically accepted the December 8, 2008, date, and specifically stated that Mr. Mangiapane "is not a target of our investigation. He is a subject."[5]
[5] See also an exhibit presented to the grand jury as presented by the prosecution to Mr. Mangiapane as prosecution's document no.797, attached hereto as Exhibit 36.
After having declared that Mr. Mangiapane was not a target of the prosecution's investigation, and after having agreed to allow Mr. Mangiapane to proffer testimony and to testify before the grand jury, the prosecution totally reneged on all of its agreements, and chose instead to amend its original indictment6 to name Mr. Mangiapane as a defendant. Apparently, the grand jury issued a true bill relative to the superceding indictment, and, contrary to the prosecution's subpoena and subsequent promises, Mr. Mangiapane stood indicted without having been given the opportunity to testify.
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09/14/2009 54 MOTION to Dismiss Indictment Due To Misconduct Occurring Before The Grand Jury by Joseph Mangiapane, Jr.. (Attachments: # 1 Exhibit 1 -10, # 2 Exhibits 11-25, # 3 Exhibits 26-36, # 4 Exhibits 37-38, # 5 Exhibits 39-43)(nms) (Entered: 09/15/2009)
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