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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------x : UNITED STATES OF AMERICA : : v. : : TODD NEWMAN and : ANTHONY CHIASSON, : : Defendants. : ------------------------------------------------------x

Case No. 12 Cr. 121 (RJS)

DEFENDANT ANTHONY CHIASSONS RESPONSE TO DEFENDANT TODD NEWMANS RENEWED MOTION FOR SEVERANCE

STEPTOE & JOHNSON LLP 1114 Avenue of the Americas New York, New York 10036 (212) 506-3900 MORVILLO LLP One World Financial Center 200 Liberty Street, 27th Floor New York, NY 10017 (212) 379-2081

Attorneys for Anthony Chiasson

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In Defendant Todd Newmans Renewed Motion for Severance (ECF #146) (Newman Mem.), Mr. Newman seeks severance, or, in the alternative, the exclusion of a large number of e-mails that Defendant Anthony Chiasson intends to introduce in his defense. Defendant Chiasson respectfully opposes the exclusion of this important evidence for his defense. BACKGROUND The e-mails in question are e-mails among analysts who the government alleges formed an insider trading conspiracy, that were sent to and/or from cooperating witness Sam Adondakis (the Adondakis E-mails). The government charges that Mr. Chiasson was part of the alleged conspiracy, and that Mr. Adondakis was the sole alleged conduit by which Mr. Chiasson allegedly received information from company insiders. Mr. Chiasson intends to introduce, in his defense, e-mails showing the many circumstances in which Mr. Adondakis did not share allegedly improper information with Mr. Chiasson, to rebut the governments allegation that Mr. Adondakis and Mr. Chiasson were co-conspirators, and to show that in fact Mr. Adondakis, while passing on stock trading information, hid from Mr. Chiasson that such information came from inside sources who allegedly breached their duties by disclosing such information. Mr. Chiasson respectfully submits he should not be restricted from introducing this evidence in his defense. A. Mr. Chiasson Intends to Use the Adondakis E-Mails Throughout His Defense.

Mr. Newmans brief suggests that Mr. Chiasson intends to offer these exhibits en masse, through a summary witness, to support a statistical analysis showing how rarely Mr. Adondakis provided Mr. Chiasson with information, and that for the vast bulk of the e-mails, there will be no witness with knowledge called who can testify about the e-mail. Newman Mem. at 3. Thus, Mr. Newman proposes that Mr. Chiasson be restricted to offering the statistical analysis through

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a summary witness without admitting the Adondakis E-mails themselves. Id. at 4-5. On the contrary, Mr. Chiasson intends to use the Adondakis E-mails throughout his defense, and should not be restricted in doing so (other than through the ordinary operation of the rules of evidence). For Mr. Chiasson, this case is about a simple issue: what Sam Adondakis told him, and what Sam Adondakis did not tell him. Mr. Adondakis is the only person alleged ever to have passed any inside information to Mr. Chiasson. Mr. Adondakis, of course, was a stock analyst whose job was to root out and pass on to Mr. Chiasson information relevant to stocks in which Level Global traded or might want to trade. Mr. Chiasson, in his defense, intends to prove that Mr. Adondakis withheld Adondakis E-mails from Mr. Chiasson and also did not pass on to Mr. Chiasson critical information that marks the difference between legitimate, competitive trading and illegal insider tradingnamely, information about stocks identified as coming from company insiders who revealed that information for personal benefit in violation of their fiduciary duties.1 This proof is at the core of Mr. Chiassons defense. The government has charged that Mr. Adondakis and Mr. Chiasson were co-conspirators, and intends to put on a wealth of information concerning their relationship spanning approximately three years at Level Global. To rebut the governments charge that Mr. Chiasson was involved in an illegal conspiracy, Mr. Chiasson intends to offer proof spanning the same time and relationship, showing the many circumstances and instances in which Mr. Adondakis concealed critical information from Mr. Chiasson. This proof is inconsistent with any

See, e.g., Dirks v. SEC, 463 U.S. 646, 660 (1983) (a tippee may be liable only when the insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know that there has been a breach); id. at 662 (Absent some personal gain [to the inside tipper], there has been no breach of duty to the stockholders. And absent a breach by the insider, there is no derivative breach.); United States v. Chestman, 947 F.2d 551, 571 (2d Cir. 1991) (en banc) (no liability, even where tippee knew information was material and nonpublic, where tipper had not breached any fiduciary duty). -2-

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conspiracy between Mr. Adondakis and Mr. Chiasson to trade illegally on inside information, and will directly rebut the governments charge that Mr. Chiasson was a member of such a conspiracy with Mr. Adondakis. Thus, Mr. Chiassons use of this proof in his defense will not be restricted, as Mr. Newmans renewed motion suggests, to an en masse introduction through a summary witness for statistical purposes. Though Mr. Chiasson does intend to offer a summary witness and a statistical analysis, in the main he intends to use the Adondakis E-mails directly, throughout his cross-examinations during the governments case, to challenge the contentions that he was a member of a conspiracy or that Mr. Adondakis was sharing illegal information with him and disclosing its unlawful sources. Mr. Chiasson intends to make such use of the Adondakis E-mails with any witness who may testify about them based on personal knowledge, including but not limited to the governments cooperating witnesses, Mr. Adondakis and Mr. Tortora. Such cross-examination will be a central part of subjecting the governments case to the crucible of meaningful adversarial testing. United States v. White, __ F.3d __, 2012 WL 3734425, at *8 (2d Cir. Aug. 30, 2012) (quoting United States v. Cronic, 466 U.S. 648, 656 (1984)).2 B. The Court Should Not Exclude the Adondakis E-mails, Which Are Properly Admissible and Central to Mr. Chiassons Defense.

As potential alternative relief to severance, Mr. Newman asks the Court to exclude the Adondakis E-mails themselves, limiting Mr. Chiassons use to the admission of a statistical

Mr. Chiasson does not seek any advance ruling on his use of such evidence. Such proof will arise during the course of the governments case and can be considered at the time under ordinary rules regarding foundation, relevance, impeachment, lack of cumulativeness, et cetera. He may not, however, be barred in advance from making proper use of such evidence. See White, 2012 WL 3734425, at *8. -3-

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analysis through a summary witness. Newman Mem. at 4-5. Such a limitation would be inconsistent with Mr. Chiassons right to defend himself. As discussed above, showing what Mr. Adondakis did not share with Mr. Chiasson is at the core of Mr. Chiassons defense. Excluding the Adondakis E-mails, or restricting Mr. Chiassons use of them to summary use, would infringe on both Mr. Chiassons right to present a complete defense, see White, supra, at *8 (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)), and to put before a jury evidence that might influence the determination of guilt or innocence. Taylor v. Illinois, 484 U.S. 400, 408 (1988) (citation omitted); accord Wade v. Mantello, 333 F.3d 51, 58 (2d Cir. 2003) (The Constitution protects a criminal defendant from the arbitrary exclusion of material evidence.). The significance of the Adondakis E-mails goes far beyond the simple fact that Mr. Chiassons name is not on them (as the severance motion suggests, Newman Mem. at 4). The Adondakis E-mails, and the witnesses familiarity with the circumstances they recite, are relevant to showing the many different types of information Mr. Adondakis kept from Mr. Chiasson, and the many different instances in which he did soall of which are important to rebutting the governments charge that Mr. Adondakis and Mr. Chiasson were co-conspirators. Importantly, a defendants offer of summary analysis under Rule 1006 does not preclude admission of the underlying evidence. See, e.g., United States v. Yousef, 327 F.3d 56, 157-58 (2d Cir. 2003) (approving use of summary chart where two volumes of underlying materials were given to jury, with instruction that it was for the jury to determine whether the summary accurately reflected the evidence). Mr. Chiassons intended use of summary analysis should not preclude him from making any other proper use of exhibits for which relevance and foundation have been shown. See Fed. R. Evid. 402; Taylor, 484 U.S. at 408; Wade, 333 F.3d at 58.

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CONCLUSION For the foregoing reasons, the Court should not prematurely restrict Mr. Chiassons use in his defense of e-mailed communications to and from Mr. Adondakis.

Dated: October 12, 2012

Respectfully submitted, STEPTOE & JOHNSON LLP /s/ Reid H. Weingarten__________ Reid H. Weingarten Erik L. Kitchen 1330 Connecticut Avenue, N.W. Washington, D.C. 20036-1795 (202) 429-3000 Michelle L. Levin 1114 Avenue of the Americas New York, NY 10036 (212) 506-3900 MORVILLO LLP /s/ Gregory Morvillo__________ Gregory Morvillo One World Financial Center 200 Liberty Street, 27th Floor New York, NY 10017 (212) 379-2081 Attorneys for Anthony Chiasson

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