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Case 1:10-cr-00087-DAB Document 78

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PREET BHARARA United States Attorney for the Southern District of New York One St. Andrews Plaza New York, New York 10007 Karl Metzner Steve C. Lee Randall W. Jackson Assistant United States Attorneys -Of Counsel-

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- - - - - - - - - - - - - - - - - -X TRIAL BRIEF The Government respectfully submits this trial brief in anticipation of certain legal issues regarding forthcoming witnesses Gloria Jones Grant and Tyrone Mitch Duren.1 In particular, this brief is provided in an abundance of caution in order to inform the Court of relevant factual background and legal precedent on which the Government relies with regard to certain potentially contested issues. Specifically, the Government respectfully seeks to inform the Court that: (1) both of these individuals are hostile witnesses who will be testifying under compulsion and a grant of immunity; (2) as a result, the Government intends to pose a number of leading questions of these witnesses; (3) the Government intends to probe the relationship of trust between certain of these witnesses and the defendant, including the exchange of funds between them; and (4) the

These witnesses will begin to testify no sooner than Wednesday, June 26, 2012. -1-

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Government anticipates that it may ask the jury to draw conclusions that differ from certain of the witnesses assertions. Applicable precedent holds that the Government may call such witnesses to elicit key truthful testimony from them, but then may nevertheless impeach or ask the jury to discredit other aspects of those witnesses testimony. BACKGROUND Both witnesses at issue here either had or currently has an extraordinarily close relationship with the defendant, and has refused to testify except under compulsion and after having been granted immunity. One witness was involved a years-long romantic affair with the defendant, and the other had an extremely close personal and family friendship extending over many years. At the first trial of the defendant, the Government moved to treat these witnesses as hostile. The defendant opposed and ultimately Judge Patterson ruled that he would consider the issue as the witness testified and evaluate the matter as the questions were answered. (Tr. 2781-83). During the testimony of Jones Grant at the first trial, Judge Patterson allowed leading questions throughout much of her testimony as it became clear that portions of Jones Grants testimony were subject to impeachment. (Tr. 2808-31). At a sidebar, the Government observed that Jones Grant had in the brief time she has been on the stand . . . already testified contrary to statements she made several times to the government -2-

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in proffer sessions. (Tr. 2815). The Court observed that [f]or instance, she has not corroborated what you had previously learned. (Tr. 2815). The defense conceded that, with regard to Ms. Jones Grants testimony about consultant fees she may have shared with the defendant, they could not contest the Governments need to confront the witness. (Tr. 2816).2 After this point, the Government was forced to repeatedly confront the witness with her prior inconsistent statements in proffer sessions. (Tr. 2820-31). The following day, the Government was forced to confront the witness with her prior Grand Jury testimony, as well as bank records that conflicted with her testimony. (Tr. 2844-51). At this point, Judge Patterson rejected a defense objection to leading questions that were being posed to the witness. (Tr. 2863).3 After being confronted with certain records, Jones Grant ultimately admitted that she had arranged with Mr. Seabrook to give him part of [her] consulting fee, however much that consulting fee might be, back in cash. (Tr. 2864). But even after this point, Jones Grant continued to give evasive answers to a number of the Governments questions

MR. WILFORD: We dont disagree with that, Judge. They have impeachment material. They can ask her about that. Tr. 2816. THE COURT: I am going to allow the form in this case. I am going to overrule the objection. Tr. 2863. -33

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regarding her interactions with the defendant. (Tr. 2871-82). Durens testimony was not similarly combative, but the subject of much of his testimony was fraudulent activity in which he engaged and fraudulent documents he created during his close association with Mr. Seabrook. (Tr. 2445-59). During portions of his testimony, Duren expressed an inability to explain certain fraudulent activity. (Tr. 2466).4 DISCUSSION A. Hostile Witnesses At this point, there is no serious question that each of the witnesses is either a hostile witness or associated with an adverse party, as those terms are understood in the Federal Rules of Evidence. Fed. R. Evid. 611. Federal Rule of Evidence 611(c) provides that the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. Fed. R. Evid. 611; see United States v. Veal, No. 98-1539, 182 F.3d 902, 1999 WL 446783 at *2 (2d Cir. Jun. 16, 1999) (A prosecutor has broad latitude in questioning a hostile witness and may impeach the witness and argue to the jury that

I said to her off the record, either could we change some o the dates or backdate it . . . . I have been trying to think about that for the longest, but I dont recall the nature of why I asked her that. -4-

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the witness lied) (unpublished); see also United States v. Ienco, 92 F.3d 564, 568 (7th Cir. 1996) (the asking of leading questions is a standard technique of impeachment. It is a technique more commonly employed in cross-examination than in direct examination, for the obvious reason that the other sides witnesses are more likely to be adverse than ones own. But if you call an adverse witness you can, in effect, cross-examine him.) (Posner, J.) (emphasis added); see generally United States v. Salerno, 505 U.S. 317, 328-29 (1992) (in the AngloAmerican legal system cross-examination is the principal means of undermining the credibility of a witness whose testimony is false or inaccurate. For that reason, a party has a motive to cross-examine any witness who, in her estimation, is giving false or inaccurate testimony about a fact that is material to the legal question at issue in the proceeding.) (Stevens, J., dissenting). Given that both of the aforementioned individuals will testify as a hostile witness, the Court should permit the use of cross-examination by the Government. B. Relationship of Trust Instrumental to the Governments case against the defendant is demonstrating the relationship of trust between the defendant and Gloria Jones Grant and Tyrone Mitch Duren. The closeness of these relationships is central to establishing the defendants -5-

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motive for the charged frauds and to rebutting the defendants claim that he was unaware of the activities of Jones Grant and others at the nonprofit organizations. Courts have allowed evidence to be admitted to demonstrate the relationship of trust between alleged co-conspirators, even where that evidence involved serious criminal activity. See, e.g., United States v. Pascarella, 84 F.3d 61, 73 2d Cir. 1996) (affirming the district courts admission of a witnesss past gambling dealings with defendants and observing that evidence of wholly different acts has been held admissible to show the background of a conspiracy or the development of a relationship of trust between the participants); see also United States v. Basciano, No. 10-3548cr, 2012 WL 493401 at *4 (2d Cir. Feb. 16, 2012) (affirming the district courts admission of evidence regarding an uncharged murder because such evidence is entirely appropriate to explain, as it did here, the development of criminal relationships and to illustrate that mutual trust existed between coconspirators) (unpulished). Here, quite obviously, the evidence the Government would elicit does not approach the nature of the evidence in Pascarella or Basciano, where extensive gambling and an uncharged murder were appropriately discussed at trial. The Government expects that certain of the immunized witnesses will admit to frequent communication with the defendant and the regular


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exchange of cash. Gloria Jones Grant will testify as the nature of her romantic relationship with the defendant, including the frequency of communication. In and of themselves, these activities do not even constitute bad acts. Moreover, as described above, these are hostile witnesses that the Government intends to confront with regard to certain aspects of their testimony. Evidence of their trusting relationships with the defendant demonstrates bias, which the jury is entitled to consider in evaluating the witnesses testimony. For all of these reasons, the Government should be permitted to elicit testimony concerning the closeness of the relationship between the defendant and these two witnesses. C. Impeachment of the Hostile Witnesses Federal Rule of evidence 607 provides that any party, including the party that called the witness, may attack the witnesss credibility. Moreover, [w]here the Government has called a witness whose corroborating testimony is instrumental to constructing the Governments case, the Government has the right to question the witness, and to attempt to impeach him about those aspects of his testimony that conflict with the Governments account of the same events. United States v. Eisen, 974 F.2d 246, 262-63 (2d Cir. 1992) (emphasis added); see also


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United States v. Bacchus, Nos. 96-1486(L), 96-1557, 1992 WL 138874 at *2, 108 F.3d 1370 (2d Cir. Mar. 18, 1997) (observing that Government was entitled to impeach its own witness with inconsistent statements and noting that such impeachment is not subterfuge when the government calls a witness who, prior inconsistent statements notwithstanding, can testify about other aspects of the crime that are critical to the government's case) (unpublished). In Busiello v. McGinnis, 235 F. Supp. 2d 179, 185 (E.D.N.Y. 2002), the district judge rejected the petitioners claim that the prosecutor at his trial had erred in calling a witness that the prosecutor knew he would have to impeach with regard to aspects of his testimony. The court held: To be sure, the prosecutor had some notice that Juliano was going to depart from his prior statements by testifying at trial that he, not Busiello, started the fight. Nonetheless, it cannot be said that the prosecution called Juliano solely as a means of getting those prior statements into evidence. Even though Juliano had changed his story with respect to who was the initial aggressor, he legitimately remained an important source of information about the injuries he suffered and the cause of those injuries. As such, his testimony was instrumental to the prosecution's case, and the prosecution was entitled to call him as a witness, at which point it was free to elicit testimony material to its case and to impeach those aspects of Juliano's testimony that harmed its case. Id. (emphasis added). Here, as in the cases cited above, there are critical truthful statements that the Government must elicit -8-

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from the immunized witnesses, such as testimony on the nature of the relationship between Gloria Jones Grant and the defendant, testimony regarding the defendants participation in the creation of certain documents, and testimony regarding various statements made by the defendant in furtherance of the conspiracy. There are also components of the witnesses testimony that the Government expects it may be forced to impeach, and there are inferences and conclusions that the Government will ask the jury to draw from the evidence that may differ from the immunized witnesses accounts of events. CONCLUSION For the foregoing reasons, the Government respectfully requests that the Court consider the cited precedent in anticipation of any contested aspect of forthcoming testimony.


New York, New York June 24, 2012 Respectfully submitted,

/s/ Karl Metzner Steve C. Lee Randall W. Jackson Assistant United States Attorneys Tel.: (212) 637-2476/2314/1029


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Certificate of Service Filed Electronically The undersigned attorney, duly authorized to represent the United States before this Court, hereby certifies that on the below date, he served or caused to be served the following documents in the manner indicated: Governments Trial Brief - June 24, 2012 Service via Clerks Notice of Electronic Filing upon the following attorneys, who are Filing Users in this case: Anthony L. Ricco, Esq. 20 Vesey Street New York, New York 10007 Tel.: (212) 791-3919 Fax: (212) 791-3940 Email: tonyricco@aol.com Edward D. Wilford, Esq. 20 Vesey Street New York, New York 10007 Tel.: (212) 528-2741 Fax: (212) 964-2926 Email: edwardwilford@aol.com Dated: New York, New York June 24, 2012 Respectfully submitted,

/s/ Karl Metzner/Steve Lee/Randall Jackson Assistant United States Attorneys