Case 2:05-cr-00249-JLL Document 80 Filed 03/05/07 Page 1 of 22 PageID: 2661

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY
_______________________________
)
UNITED STATES OF AMERICA )
)
)
Crim. No.: 05-249 (JLL)
v.
)
)
ORAL ARGUMENT
MARCI PLOTKIN
)
REQUESTED
STANLEY BEKRITSKY
)
RICHARD STADTMAUER
)
ANNE AMICI
)
______________________________ )
REPLY MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT
RICHARD STADTMAUERS MOTION TO COMPEL
DISCOVERY PURSUANT TO FED. R. CRIM. P. 16
(Stadtmauer Pretrial Motion No. 1)
KOSTELANETZ & FINK, LLP
530 5th Ave., 22nd Fl.
New York, NY 10036
(212) 808-8100
Counsel to Richard Stadtmauer
Dated: March 5, 2007

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TABLE OF CONTENTS
Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARGUMENT
POINT I
THE GOVERNMENT SHOULD BE DIRECTED TO IDENTIFY THOSE
DOCUMENTS THAT IT INTENDS TO USE IN ITS CASE-IN-CHIEF. . 3
POINT II
THE GOVERNMENT SHOULD BE COMPELLED TO PRODUCE
DOCUMENTS REQUESTED BY DEFENDANTS WHICH ARE
MATERIAL TO THE DEFENSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A.

Documents Related to the Concealment Allegations . . . . . . . . . . . . . 6

B.

Internal IRS Documents

C.

1.

The Internal IRS Documents Are Material to the Defense . . . 7

2.

The Internal IRS Documents Are in the Governments

Possession, Custody or Control . . . . . . . . . . . . . . . . . . . . . . . 9

Civil Audit Files. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

POINT III
THE COURT SHOULD ORDER A HEARING TO DETERMINE
WHETHER THE GOVERNMENT IMPROPERLY GAINED
KNOWLEDGE OR POSSESSION OF DOCUMENTS AND
COMPUTER RECORDS STOLEN BY A PRIVATE CITIZEN. . . . . . . .13
CONCLUSION. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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TABLE OF AUTHORITIES
FEDERAL CASES
Brady v. Maryland, 373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Lustig v. United States, 338 U.S. 74 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Nordstrom v. United States, 360 F.2d 734 (8th Cir.),
cert. denied, 385 U.S. 826 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
United States v. Auten, 632 F.2d 478 (5th Cir. 1980)). . . . . . . . . . . . . . . . . . . . . . 10
United States v. Bennett, 709 F.2d 803 (2d Cir. 1983) . . . . . . . . . . . . . . . . . . . . . .14
United States v. Bridell, 180 F. Supp. 268 (N.D. Ill.1960) . . . . . . . . . . . . . . . . . . . 8
United States v. Causey, 356 F. Supp. 2d 681 (S.D. Tex. 2005) . . . . . . . . . . . . . . . 5
United States v. Chalmers, 410 F. Supp. 2d 278 (S.D.N.Y. 2006). . . . . . . . . . 10-12
United States v. Critzer, 498 F.2d 1160 (4th Cir. 1974) . . . . . . . . . . . . . . . . . . . .8-9
United States v. Ferguson, Crim. No. 3:06 CR 137 (CFD), 2007 WL 196668
(D. Conn. Jan. 24, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
United States v. Garber, 607 F.2d 92 (5th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . 8
United States v. McDonald, 01 Cr. 1168, 2002 WL 2022215
(E.D.N.Y. Aug. 6, 2002) (JS). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
United States v. Nachamie, 91 F. Supp. 2d 565 (S.D.N.Y. 2000). . . . . . . . . . . . . . 4
United States v. Knoll, 16 F.3d 1313 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Palermo, No. 99 Cr. 1199, 2001 WL 185132
(S.D.N.Y. Feb. 26, 2001) (LMM) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
United States v. Pelullo, 399 F.3d 197 (3d Cir. 2005) . .. . . . . . . . . . . . . . . . . . . . 11
iii

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United States v. Perdomo, 929 F.2d 967 (3d Cir. 1991) . . . . . . . . . . . . . . . . . . . . 10

United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989) . . . . . . . . . . . . . . . 4
United States v. Risha, 445 F.3d 298 (3d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Safavian, 233 F.R.D. 12 (D. D.C. 2005) . . . . . . . . . . . . . . . . . . . 10
United States v. Skulsky, 786 F.2d 558 (3rd Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Stein, 424 F. Supp. 2d 720 (S.D.N.Y. 2006) . . . . . . . . . . . . . . . . 12
United States v. Turkish, 458 F. Supp. 874 (S.D.N.Y. 1978). . . . . . . . . . . . . . . . . 4
United States v. Upton, 856 F. Supp. 727 (E.D.N.Y. 1994). . . . . . . . . . . . . . . . . . 4
FEDERAL STATUTE
26 U.S.C. 7206(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
FEDERAL RULE
Fed. R. Crim. P. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
MISCELLANEOUS AUTHORITY
Guidance Regarding Deduction and Capitalization of Expenditures,
67 Fed. Reg. 3461 (Jan. 24, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

iv

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY
_______________________________
)
UNITED STATES OF AMERICA )
)
)
Crim. No.: 05-249 (JLL)
v.
)
)
ORAL ARGUMENT
MARCI PLOTKIN
)
REQUESTED
STANLEY BEKRITSKY
)
RICHARD STADTMAUER
)
ANNE AMICI
)
______________________________ )
REPLY MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT
RICHARD STADTMAUERS MOTION TO COMPEL
DISCOVERY PURSUANT TO FED. R. CRIM. P. 16
(Stadtmauer Pretrial Motion No. 1)
Preliminary Statement
Defendant Richard Stadtmauer respectfully submits this reply
memorandum of law in further support of his discovery motion. First, Mr.
Stadtmauer seeks an Order pursuant to Fed. R. Crim. P. 16(a)(1)(E) and (d)(2),
directing the government to identify all documents that it intends to rely on in its
case-in-chief well in advance of trial. This Order is necessary because the
government has produced an overwhelming volume of documents, and it will take
an inordinate amount of time and resources for counsel to review each document in
preparation for trial.

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Second, Mr. Stadtmauer seeks an Order pursuant to Rule 16

compelling the government to supplement its discovery. 1 In contrast to the
governments unrestricted production of documents that may or may not be used to
support its case, the limited response to defendants specific discovery requests is
hampering the their ability to prepare their defense. The particular items of most
concern are (i) the third-party subpoenas, and responses from those third parties,
which will allow the defense to ascertain whether the government has produced all
of documents material to the defense;2 (ii) internal Treasury Department and IRS
documents that Mr. Stadtmauer believes will establish uncertainty in the
application of the capitalization rules; and (iii) certain civil audit files relating to
Mr. Stadtmauers arguments with respect to Brady v. Maryland, 373 U.S. 83, 87
(1963), are discussed in the Reply Memorandum in Support of Defendant Richard
Stadtmauers Motion to Compel Disclosure of Brady/Giglio Material and for Early
Production of Jencks Act Material, filed herewith.

In the Memorandum of Law in Support of Defendant Richard Stadtmauers

Motion to Compel Discovery Pursuant to Fed. R. Crim. P. 16 (Def. Mem.) at 2931), Mr. Stadtmauer requested the tax returns of the individual partners of the Real
Estate Partnerships on the ground that they were necessary to establish the tax loss
to government (if any) resulting from the conduct charged in the Indictment.
However, since the government has now represented that the Superseding
Indictment does not allege, and the government does not intend to prove, that any
non-co-conspirator partner filed a false personal tax return or that any such partner
understated the tax due and owing by that partner to the IRS (Gov. Mem. at 74),
we no longer require the tax returns of those partners. We accordingly withdraw
this discovery request with the express caveat that we fully expect that the
government will not deviate from this position and attempt to offer at trial evidence
of any tax benefit to any non-co-conspirator partners.
2

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other Kushner Companies entities. Each of these items is material to the defense
and should be produced promptly.
Finally, Mr. Stadtmauer requests a hearing to determine how the
government came to have knowledge of or to possess stolen records. Because the
government has not provided a satisfactory answer to Mr. Stadtmauers legitimate
concerns, a hearing is necessary to determine whether there was an
unconstitutional search and seizure.
ARGUMENT
POINT I
THE GOVERNMENT SHOULD BE DIRECTED TO IDENTIFY THOSE
DOCUMENTS THAT IT INTENDS TO USE IN ITS CASE-IN-CHIEF
The government has produced millions of documents in this case,
many mislabeled or haphazardly thrown into bankers boxes. The indices provided
by the government offer little help in sorting out the contents of the over 900
bankers boxes of documents that have been produced so far. Indeed, several
categories of documents do not appear on the index at all. (See March 5, 2007
Reply Affidavit of Lauren Hoffman in Support of Reply Memorandum in Support
of Marci Plotkins Motion for Bill of Particulars (Hoffman Dec.)) at 12). In
addition, items have been removed from the discovery boxes, id. at 4, Bates
numbers are missing without adequate explanation, id. at 6, and the governments
3

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reorganization of the third-party productions has created considerable confusion,

id. at 13. Moreover, the sheer volume of materials in this case sets it apart, and
requires that the government specifically identify, from amongst the millions of
documents which it has produced, the documents that it intends to rely on or refer
to during its case-in-chief.
As explained in the opening Memorandum (Def. Mem. at 18-19),
various Courts have interpreted Rule 16(a)(1)(E)(ii) to require the government to
specifically identify those documents that will be relied on or referred to at trial
from the governments massive production. See, e.g., United States v. Upton, 856
F. Supp. 727, 746 (E.D.N.Y. 1994); United States v. Poindexter, 727 F. Supp.
1470, 1484 (D.D.C. 1989); United States v. Turkish, 458 F. Supp. 874, 882
(S.D.N.Y. 1978). We acknowledged in our opening Memorandum that there is
contrary authority, see e.g., United States v. Nachamie, 91 F. Supp. 2d 565
(S.D.N.Y. 2000), however, in the rare case such as this where the government has
produced such a staggering volume of documents, the better interpretation of Rule
16 is to require the government to specifically identify those documents that it
intends to rely on or refer to in its case-in-chief.
Nonetheless, the Court need not decide what is required in all cases
under Rule 16(a)(1)(E)(ii), as it unquestionably has discretion, where warranted, to
order the government to identify the documents which it intends to use in its case4

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in-chief. See United States v. McDonald, 01 Cr. 1168, 2002 WL 2022215 at *3

(E.D.N.Y. Aug. 6, 2002) (JS); United States v. Palermo, No. 99 Cr. 1199, 2001
WL 185132 at *6 (S.D.N.Y. Feb. 26, 2001) (LMM). This case warrants the
exercise of this discretionary power.3
The government argues that it should not be required to specifically
identify the documents that will be relied on or referred to by a witness because it
cannot predict all of the documents that they may refer to at trial. (See
Memorandum of the United States in Opposition to Defendants Pretrial Motions
(Gov. Mem.) at 70-71). To be clear, we are asking only for what the government
now knowingly intends to rely on at trial, whether or not admitted into evidence.
The volume of documents that the government has produced to date
is overwhelming, and it will take an inordinate amount of time and resources for
counsel to give each document a cursory review, let alone read each page. In
The government urges the Court not to exercise this discretion, citing United
States v. Ferguson, Crim. No. 3:06 CR 137 (CFD), 2007 WL 196668, at *20 (D.
Conn. Jan. 24, 2007), in which the Court denied a request for specific identification
of documents to be used in the governments case in chief. The circumstances, in
Ferguson, however, were markedly different from those in the present case.
There, the government provided the defense with a discrete number of hot docs
before the defendant was indicted, provided its exhibit list two months before trial,
and gave the defense access to a text-searchable database containing all of the
documents. Id. The governments reliance on United States v. Causey, 356 F.
Supp. 2d 681, 687 (S.D. Tex. 2005), is also misguided. There, well in advance of
trial, the government voluntarily produced a rough cut of what the government
believe[d] is the central evidence for both the government and the defense.
3

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addition, because the government has not produced the documents in the order they
were kept in the ordinary course of business or in the order in which they were
produced, the requested relief is essential. Accordingly, the Court should require
the government to identify substantially in advance of trial the documents it
intends to either refer to or use as evidence in its case-in-chief.
POINT II
THE GOVERNMENT SHOULD BE COMPELLED TO PRODUCE
DOCUMENTS REQUESTED BY DEFENDANTS WHICH ARE
MATERIAL TO THE DEFENSE
During discovery, the government has refused to provide several
categories of documents which are material to the defense and must be produced
pursuant to Fed. R. Crim. P. 16(a)(1)(E)(i).
A.

Documents Related to the Concealment Allegations

The defendants requested documents relating to the allegation in the

Indictment that certain partners were denied access to the books and records of the
Real Estate Partnerships, or to accurate information about partnership expenses and
distributions. See Indictment, Count 1, 8(L) & (K). The government represents
that it has turned over all material in its possession that originates from the
Murray Kushner litigation. (Gov. Mem. at 75). However, we do not believe that
the government has produced all documents relating to this allegation. For
example, we have not been provided with documents relating to the partners
6

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accounting and tax reporting that we believe the government subpoenaed from
PriceWaterhouseCooper, the forensic accountant in the arbitration.
In order to resolve this dispute, the government should be required to
produce copies of the grand jury subpoenas and the production letters from the
subpoenaed parties in order to determine whether it has, in fact, turned over all of
the materials requested by the defense.
B.

Internal IRS Documents

1.

The Internal IRS Documents are Material to the Defense

The defendants requested that the government produce internal IRS

communications relating to the capitalization rules and regulations. One of the
primary allegations in the Indictment is that the Real Estate Partnerships
improperly characterized capital improvements and depreciable items as ordinary
business expenses. See Indictment, Counts 2-25. As explained in the Defendants
Joint Motion to Dismiss and Strike, In Part, Counts 1-25 of the Superseding
Indictment, the determination of whether an item should be capitalized or expensed
is a complex question that the government itself has conceded is highly uncertain.
Based on the IRS and Treasury Departments statements in public documents
regarding the capitalization of expenses, see e.g., Guidance Regarding Deduction
and Capitalization of Expenditures, 67 Fed. Reg. 3461 (Jan. 24, 2002) (recognizing
the current level of uncertainty and controversy), Mr. Stadtmauer believes
7

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internal IRS documents exist that further demonstrate official government

recognition of uncertainty in this area of the law.4
The existence of such uncertainty is material to the defense in this
case. Mr. Stadtmauer has been charged with aiding and assisting in the filing of
fraudulent and false returns pursuant to 26 U.S.C. 7206(2). Willfulness is an
element of this offense. Id.; United States v. Skulsky, 786 F.2d 558, 563 (3rd Cir.
1986). Evidence showing uncertainty within the IRS and the Treasury Department
over the interpretation and application of the capitalization rules will aid Mr.
Stadtmauer in defending against the allegation that he acted willfully. As
explained by one court, the unresolved nature of the law is relevant to show that
defendant may not have been aware of a tax liability or may have simply made an
error in judgment. United States v. Garber, 607 F.2d 92, 98 (5th Cir. 1979)
(citing Nordstrom v. United States, 360 F.2d 734 (8th Cir.), cert. denied, 385 U.S.
826 (1966); United States v. Bridell, 180 F. Supp. 268 (N.D. Ill.1960)). Further, in
United States v. Critzer, 498 F.2d 1160 (4th Cir. 1974), the Court reversed a
criminal tax conviction where there was a disputed question of law, explaining the

The government speculates that the internal IRS communications would not be
helpful to the defense but does not represent that it undertook any review of these
materials. (See Gov. Mem. at 76-77).
4

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relevance of uncertainty within the government ranks as to the tax treatment of a

particular item:
We hold that defendant must be exonerated from the
charges lodged against her. As a matter of law,
defendant cannot be guilty of willfully evading and
defeating income taxes on income, the taxability of
which is so uncertain that even coordinate branches of
the United States Government plausibly reach directly
opposing conclusions. As a matter of law, the requisite
intent to evade and defeat income taxes is missing. The
obligation to pay is so problematical that defendants
actual intent is irrelevant. Even if she had consulted the
law and sought to guide herself accordingly, she could
have had no certainty as to what the law required.
Id. at 1162. Clearly, evidence of the uncertainty within the IRS and Treasury
Department on the application of the capitalization rules is material to the motion
to dismiss and the trial defense and should be produced pursuant to Rule 16.
2.

The Internal IRS Documents Are In the Governments

Possession, Custody, or Control

The government also asserts that the requested documents are not in
its possession and thus need not be turned over. (Gov. Mem. at 78-79). This is an
overly narrow view of the governments discovery obligations. Rule 16 requires
the government to permit the defendant to inspect and to copy or photograph
books, papers, documents . . . if the item is within the governments possession,
custody, or control. Fed. R. Crim. P. 16(a)(1)(E)(i) (emphasis added). The term
government does not refer solely to the United States Attorneys Office, but may
9

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include other federal agencies. As explained by the Third Circuit in the context of
exculpatory material, [t]here is no question that the governments duty to disclose
under Brady reaches beyond evidence in the prosecutors actual possession.
United States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006). In this context, the Third
Circuit has adopted the Fifth Circuits view that [i]n the interests of inherent
fairness the prosecution is obligated to produce certain evidence actually or
constructively in its possession or accessible to it. . . To do otherwise would be
inviting and placing a premium on conduct unworthy of representatives of the
United States Government. United States v. Perdomo, 929 F.2d 967, 970 (3d Cir.
1991) (quoting United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980)).
In the context of Rule 16, courts have also ordered the government to
search for documents in the possession of federal agencies not part of the
prosecution team. See United States v. Safavian, 233 F.R.D. 12, 18-19 (D. D.C.
2005) (The documents must be produced if they are in the possession, custody or
control of any agency of the Executive Branch of the government.) (emphasis in
original); but see United States v. Stein, 424 F. Supp. 2d 720, 723 (S.D.N.Y. 2006).
The documents should also be produced because they are not merely
in the possession of the government, but are in the possession of an agency that is
part of the prosecution team in this case. See United States v. Chalmers, 410 F.
Supp. 2d 278, 289-90 (S.D.N.Y. 2006) (prosecution must produce documents
10

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material to defense that are in the possession, custody, or control of a government

agency so closely aligned with the prosecution so as to be considered part of the
prosecution team.). Here, Mr. Stadtmauer is not seeking to compel production
of documents in the possession of some unrelated federal agency, but from the
IRS, which has conducted a joint investigation with the United States Attorneys
Office and is part of the prosecution team in this case.
The government cites United States v. Pelullo, 399 F.3d 197 (3d Cir.
2005), in an attempt to support its position that it has no obligation to produce the
requested document. In Pelullo, the Court clearly articulated the general
principle that the prosecution is obligated to disclose information known to
others acting on the governments behalf in a particular case. Id. at 218.
However, the court determined that the government was not required to produce
certain documents in the possession of the Pension and Welfare Benefits
Administration (PWBA) because the PWBA was not a member of the
prosecution team and there was no indication that there was a joint investigation or
that the prosecution had any control over the PWBA officials. Id. Here, in
marked contrast, Mr. Stadtmauer seeks documents from the IRS and agency that
has been an integral part of the prosecution team.
In sum, the requested documents are material to the defense and are in
the possession of the IRS, an agency that is part of the prosecution team in this
11

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case. Accordingly, the government should be required to produce the requested

documents pursuant to Rule 16.
C.

Civil Audit Files

The defendants have requested the production of certain civil audit

files relating to audits performed by the IRS of various Kushner Companies

entities. The government has produced some documents in response to this
request, but has advised the defense that the remaining records have been
destroyed several years prior to the start of the grand jury investigation. (Def.
Mem. at 79). Despite repeated requests, the government has not produced any
attestations from the IRS concerning the alleged destruction of this evidence, nor
provided the defense with any details as to when these records were destroyed, at
whose direction they were destroyed, or the IRS records retention policy upon
which the government relies.
The governments position is that it has no obligation to produce these
records because they are not required to produce information in the possession of
the IRS. (Def. Mem. at 79). As explained, in Section II(B), supra, the IRS is a
member of the prosecution team and information in its possession is with the
possession, custody or control of the government under Rule 16.

12

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POINT III
THE COURT SHOULD ORDER A HEARING TO DETERMINE
WHETHER THE GOVERNMENT IMPROPERLY GAINED
KNOWLEDGE OR POSSESSION OF DOCUMENTS AND
COMPUTER RECORDS STOLEN BY A PRIVATE CITIZEN
The governments response to Mr. Stadtmauers request for
information as to the manner in which the government came to know of, and then
obtained, certain documents and computer records is inadequate. This is a serious
concern that may implicate Mr. Stadtmauers Fourth Amendment rights and should
not be lightly brushed aside.
As an initial matter, the government did not submit an affidavit or
declaration on this issue. Rather, it baldly asserts, in the most general of terms,
that it at no time authorized [Robert] Yontef, or anyone else, to conduct searches
and seizures on its behalf. (Gov. Mem. at 88). Putting aside the conclusory
nature of this statement, it is phrased wholly in negative terms it purports to state
how the government didnt obtain the materials. Notably absent is any
representation by a single employee of the Department of Justice about the manner
in which it did obtain knowledge of or possession of the stolen records, and that
absence, is in itself troubling.
Moreover, the government merely denies that it authorized any search
or seizure; it does not deny that its officers or employees knew about the search
13

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and seizure. (See Gov. Mem. at 88). As explained in the opening Memorandum,
the Fourth Amendments restraints are not limited to searches and seizures by
private citizens that were authorized by the government. (Def. Mem. at 50). The
Fourth Amendment also applies to searches of which the government was aware of
and in which it was complicit, United States v. Bennett, 709 F.2d 803, 805 (2d Cir.
1983) (citing Lustig v. United States, 338 U.S. 74, 78-79 (1949)), and is
immaterial whether the government originated the idea for a search or joined it
while it was in progress, United States v. Knoll, 16 F.3d 1313, 1320 (2d Cir.
1994) (internal citation omitted). The governments carefully-worded response
raises additional concerns about its conduct.
The government also asserts that Mr. Stadtmauer has no basis for his
request for information as to how the government came to have knowledge of or to
possess Westminster Management (Westminster) records stolen from the
Kushner Companies. (Gov. Mem. at 89). This is simply not the case. The
opening Memorandum set forth sufficient facts none of which the government
disputes that the theft was ongoing when the government became involved with
or aware of it. Indeed, the government does not deny that: (i) from at least July
2001 through June 2002, Mr. Yontef stole documents and computer records

14

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containing financial and accounting information of Westminster;5 (ii) Mr. Yontef

downloaded onto CD-Roms all of Westminsters primary accounting system; (iii)
Mr. Yontef stole these records with the intent to give them to the United States
Attorney; (iv) during the period from at least October 2001 through June 2002, Mr.
Yontef funneled this information to Murray Kushner; (v) at Murray Kushners
request, Mr. Yontef forwarded the stolen records to the forensic accountant
retained by his counsel, Herbert Stern, who in turn, forwarded them to Mr. Stern;
(vi) as a result of the litigation between Charles and Murray Kushner, the United
States Attorneys Office opened an investigation of Charles Kushner, which in turn
led to the investigation of the defendants; and (vi) the original stolen records came
into the possession of the FBI and the United States Attorneys Office. (See Def.
Mem. at 46-49).
In addition to these facts, which in themselves form a basis for further
inquiry into the governments knowledge of and eventual possession of the stolen
records, during the time period of the arbitration, Yontefs theft of the records, and
through the initiation of the criminal investigation, Herbert Stern, who was Murray
Kushners attorney, counseled the United States Attorney in his capacity as a
prosecutor (and was something of a mentor to him) meeting with him every few

Mr. Stadtmauer is a 50% partner in Westminster Management, and thus has

standing to object to the search and seizure.
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Case 2:05-cr-00249-JLL Document 80 Filed 03/05/07 Page 20 of 22 PageID: 2680

months. (See January 1, 2006 Star Ledger, attached to the March 2, 2006 Reply
Declaration of Robert S. Fink in Support of Defendant Richard Stadtmauers
Motion to Compel Discovery Pursuant to Fed. R. Crim. P. 16 (Fink Dec.) as
Exhibit (Ex.) A). Moreover, at the same time that the government was receiving
information regarding Charles Kushner and the defendants in this case, the
government also was receiving information regarding potential criminal conduct of
Murray Kushner. (See Certification of Marc L. Kaplan, Fink Dec. Ex. B).
However, it was Charles Kushner and the defendants, and not Murray Kushner,
who were investigated and ultimately prosecuted.
Because the government has refused to provide information as to the
time and manner in which it first acquired knowledge of or possession of the stolen
records, we respectfully request a hearing on the matter. Mr. Stadtmauer has made
out a prima facie case for violation of his Fourth Amendment rights, and an inquiry
is warranted.
Conclusion
For all of the foregoing reasons, Mr. Stadtmauers motion should be
granted in its entirety.

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Case 2:05-cr-00249-JLL Document 80 Filed 03/05/07 Page 21 of 22 PageID: 2681

Dated:

New York, New York

March 5, 2007
Respectfully submitted,
KOSTELANETZ & FINK, LLP
By:

/s/ Robert S. Fink

Robert S. Fink (RSF-7924)
Caroline Rule (CR-6503)
Megan L. Brackney (MLB-6870)
530 Fifth Avenue
New York, New York 10036
(212) 808-8100
Counsel to Richard Stadtmauer

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Case 2:05-cr-00249-JLL Document 80 Filed 03/05/07 Page 22 of 22 PageID: 2682

CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that the forgoing document
was served on the parties of record by electronic notification and by mailing a copy
thereof by First Class Mail, postage prepaid, to the following:
Thomas J. Eicher, AUSA
United States Attorneys Office
District of New Jersey
U.S. Department of Justice
970 Broad Street, Suite 700
Newark, NJ 07102
Richard J. Schaeffer, Esq.
Brian T. Rafferty, Esq.
Dornbush Schaeffer Strongin & Venaglia, LLP
747 Third Avenue
New York, NY 10017
Justin P. Walder, Esq.
Walder, Hayden & Brogan, P.A.
5 Becker Farm Road
Roseland, NJ 07068
Edward J. Plaza, Esq.
Weir & Plaza, LLC
321 Broad Street
Red Bank, NJ 07701
This, the 5th day of March 2007.
/s/ Robert S. Fink
Robert S. Fink

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