Each time I read new documents in the fraud trial of Joe and Teresa Giudice, I practically break out in hives imagining the cost for each document, each piece of research, every billable minute the legal team is working away on their case. It's mind boggling. I'd give anything to see the total when all is said and done. The Real Housewives of New Jersey better go for at least another 30 seasons so Tre can pay her bill.
Teresa and Joe's attorneys filed some new documents in the federal fraud case yesterday. Teresa's attorneys are still trying to get more information from the prosecutors and you can feel their frustration in trying to get a few issues resolved. They reiterate their reasons for demanding that Teresa be severed from Joe for the trial and are asking for clarification on many of the counts. It's an interesting read, once again!
Some of the highlights are below, including a letter Joe's attorney filed that just states Joe's position on Teresa's requests. I tried to bold the more important and interesting statements for those who would prefer to skim. I cut out some of the longwinded wording, but tried to keep it as intact as I could.
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ARGUMENT
1. TERESA GIUDICE MUST BE SEVERED FROM JOE GIUDICE TO PRESERVE HER CONSTITUTIONAL RIGHT TO TESTIFY ON HER OWN BEHALF
As set forth in Teresa' s Memorandum in support of her pretrial motions, the Court should sever the trials of Teresa and Joe Giudice to protect her two basic trial rights. Severing the trials is justified to protect Teresa' s rights to: 1) testify on her own behalf, and 2) not testify against her husband. United States v. Dobson. Teresa will be prevented from the protection of both rights if she has to choose between them.
In opposing severance of the trials, the Government disregards the holdings of courts within the Third Circuit in favor of district court decisions elsewhere.
This Circuit does not uniformly deny severance of trials for husband and wife co-conspirators. In fact, most courts in this Circuit favor severance in circumstances such as this. As cited previously in Teresa' s Memorandum in support of her pretrial motions, when such a conflict of rights occurs, courts within this Circuit resolve the problem by severing the trials of the spouses. See e.g. Dobson, supra. For example, in United States v. Ali, a defendant and her husband were charged in approximately thirty counts of a superseding indictment with violations of RICO, mail fraud, wire fraud, and tax evasion. United States v. Ali, 2005 WL 697482. The defendant moved to sever the trial from her husband, asserting that she wished to testify on her own behalf at trial, but that her testimony would inculpate her husband. Id. The Court held: [I]f Defendant were tried alongside her husband, she would be forced to choose between two basic, fundamental rights. Requiring her to so compromise a specific trial right would be manifestly unfair. In the interest of justice, the appropriate remedy is to sever the trials of Defendant and her husband. Id.
As the courts in Dobson and Ali correctly held, if a spouse such as Teresa chose to testify as to her innocence , it may inculpate her husband. Thus, she is placed in the position of choosing to testify on her own behalf, or not testifying at all . This result is improper, and warrants severance of the trial.
Additionally, should the Court proceed with a joint trial, Joe will likely invoke his Fifth Amendment constitutional right and forego testifying, despite likely exculpatory testimony that he and others, not Teresa, signed various loan documents. If the trials were severed, Joe could testify in Teresa' s defense. This scenario fits squarely within the considerations set forth by the courts cited above.
In support of its opposition, the Government relies on two cases within this district which are easily distinguishable: United States v. Manfredi, 628 F. Supp. 2d 608, 647-650 (W.D.Pa. 2009) and United States v. Ferrer, 2008 WL 4890034 , *4 (M.D. Pa. Nov. 12, 2008). In Manfredi, the Court denied severance based on entirely unrelated reasons and concerns. Id. at 644. ("Having found that there is no serious risk that Mrs. Manfredi's rights under the Confrontation Clause would be violated by introduction of the contents of the interview memorandum at issue, with a proper limiting instruction, severance of the defendants is not warranted." ). The only other case within this Circuit cited by the Government did not state that severance is uniformly improper, as the Government suggests. See Ferrer, supra. In fact, the District Court in Ferrer held quite the opposite . In Ferrer, the Court held, "[W]e reject[] the bright-line rule implied in Dobson in favor of a fact sensitive inquiry focused on whether failure to sever creates a serious risk that one of [Defendants] trial rights will be compromised." (emphasis added). Thus, the Ferrer court focused on whether the Defendant wife 's testimony regarding a drug trafficking conspiracy would be incriminating to her husband. The Ferrer court did not believe the testimony would have incriminated her husband, and denied severance. Even using the same, fact specific inquiry set forth in Ferrer, the Defendant in the case at bar should be severed. The Government' s failure to even acknowledge the Ferrer analysis in its opposition is telling.
The Government also relies largely on the case United States v. Artates –out of the District of Hawaii no less– in support of its opposition. The Hawaiian District Court in Artates denied severance as it did not find "the right not to testify against one' s spouse" to be a specific constitutional right. Artates, supra, at *3. This reasoning is flawed, and is largely not followed in the Third Circuit. Rule 14 of the Federal Rules of Criminal Procedure permits a court to sever defendants' trials "[if] the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government." Fed.R.Crim.P. 14 (a). (emphasis added). When defendants have been properly joined under Rule 8(b), "a district court should grant severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence."
2. Severance of Counts 1-13 (Mortgage Fraud) and Counts 14-36 (Bankruptcy Fraud) Will Be Required to Prevent Undue Prejudice to the Defendants and Confusion to the Jury
The Government opposes Defendants ' motions to sever various Counts in the indictment, arguing that a "logical relationship" exists pursuant to United States v. McGill, 964 F.2d 222, 242 (3d Cir. 1992) .
The McGill court held that that the fact that one illegal activity provides the impetus for the other illegal activity is sufficient to constitute a common scheme for joinder purposes. The Government contends that "Defendants fraudulently incurred large amounts of loan debt by making false statements on loan applications and supporting documents…then attempted to fraudulently discharge that debt by making additional false statement during the bankruptcy process." This statement is false, and entirely misrepresents the evidence produced in this case to date.
The evidence at trial will show that almost all of the loans acquired by the Giudices had been paid off, long before the bankruptcy petition was filed. Specifically, the evidence will show the following:
Loan 1: 81 Marshall: Homecomings: September 2001: paid off prior to bankruptcy;
Loan 2: 58-60 Highland: Eastern American: June 2004: Paid off prior to bankruptcy;
Loan 3: 66 Belmont: Alterna: March 2005: Paid off prior to bankruptcy;
Loan 4: 105-197 Governor: Washington Mutual: July 2005: Paid off prior to bankruptcy;
Loan 5: 12 Wauchaw Road: Park Avenue: November 2005: Paid off prior to bankruptcy;
In addition to the above loans, there also exists 1) two Wachovia Lines of credit; and 2) the Giudice' s home address. However, Teresa had absolutely no involvement with the acquisition of the Wachovia lines of credit, which are not in her name. The only remaining property is the home address, which is the Giudice 's primary residence. The mortgage on the home address is currently being paid monthly.
Thus, the Government' s attempt to categorize the loan application/bank fraud counts and the bankruptcy fraud counts as one, single "transaction" is clearly improper. There is no comparison or relation between the two sets of counts except the married defendants. Each set of counts refer to completely unrelated and distinct events during completely different time periods. Indeed, the evidence and witnesses will show that these sets of counts are not at all part of a "common scheme or plan" to defraud. Consequently, due to the risk of juror confusion and unfair prejudice pursuant to R. 8 and R. 14, the two sets of counts must be severed.
3. THE COURT SHOULD DIRECT THE PROSECUTION TO FILE A BILL OF PARTICULARS
The Government contends that it is not required to file a bill of particulars because its indictment is sufficient and "the Defendants can readily determine all of the information they seek without the need for a bill of particulars." However, this reasoning is flawed and insufficient. The Government should not be permitted to subvert their obligation pursuant to Fed. R. Crim. P. 7(f). Rule 7(f) is designed "to encourage a more liberal attitude by the courts toward bills of particulars without taking away the discretion which courts must have in dealing with such motions in individual cases." United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989) (quoting Fed. R. Crim. P. 7 Advisory Committee' s Note to 1966 amendment). A motion for a bill of particulars is appropriate where a defendant requires clarification in order to prepare a defense. Will v. United States, 389 U.S. 90, 99 (1967).
Here, the Government opposes Teresa' s Motion for a bill of particulars, in part, because it has already provided access to discovery. Indeed, the Government has given the Defense "access" to an entire room full of bankers boxes and redwells – requiring the Defense to determine what is relevant and what is not. The fact that the Government has made available to defense counsel the voluminous documentary discovery accumulated in connection with this case does not obviate the need for a bill of particulars. Teresa' s motion does not seek to determine "how" the Government intends to prove its case, but rather "what" the government intends to prove. It is the very extensive nature of the discovery provided that gives rise to Teresa' s need for a more specific statement of the charges. See United States v. Bortnovsky, 820 F.2d 572, 575 (2d Cir. 1987) ("The government did not fulfill its obligation merely by providing mountains of documents to defense counsel who were left unguided as to which documents would be proven falsified …")
As stated more fully in Teresa' s Memorandum in support of her Pretrial Motions, the Indictment repeatedly uses vague and amorphous words and phrases, but fails to provide additional detail to allow Teresa to defend herself against these allegations. In fact, the Defense has accessed and reviewed the Government' s discovery in the U.S. Attorney' s Office on many occasions, and still cannot determine what the basis is for many of the allegations set forth in the Indictment.
Accordingly, the Indictment is woefully deficient. For example, Count 23 of the Indictment alleges that on April 23, 2010 during her 403 examination, Teresa made false oaths "about her income," without more. The Defense has a right to know what the oath was and what "about her income" was false.
Similarly, Count 26 alleges that Teresa made false oaths about the "Rental Property" and "income from Rental Property." The Defense has a right to know what the oath was and what about the "rental property" was false. Additionally, the indictment states that other co- conspirators were involved in the wrongful conduct, but does not state which other co-conspirators. It provides that the wrongful conduct took place in other states, but does not enumerate which other states. It states that various "other" documents were submitted to banks and "other" entities causing, in part, the basis for the bank and loan application fraud. However, the Indictment does not state which other documents were submitted to which other entities and how they were involved in the fraud. As a result, Teresa Giudice respectfully moves that the Government be ordered to produce the information referenced in her Pretrial Motions.
4. THE COURT SHOULD ORDER THE PROSECUTION TO PRODUCE IMMEDIATELY ALL BRADY MATERIALS
The Government has opposed Defendants ' request for an Order to produce all Brady material as moot. It has further stated that "the United States already has provided all Brady material in its possession, and represents to the Court that it is aware of, and will abide by, its continuing obligation of disclosure." Government Opposition at p. 23.
Teresa respectfully requests that Your Honor require the Government to review documents and information in its possession for Brady material and immediately produce same to the defense. The Government' s continuous failure to do so prejudices Teresa.
As stated, to date, the Government has failed to meet its duty to provide all evidence favorable to the defense. In doing so, it has also failed to abide by Your Honor 's August 14th Order, which required the Government to have provided: "Any material evidence favorable to the defense related to issues of guilt, lack of guilt or punishment which is known or that by the exercise of due diligence may become known to the attorney for the United States, within the purview of Brady v. Maryland and its progeny.n
As set forth in depth in Teresa' s Memorandum in support of her pretrial motions, the Government had only once acknowledged the existence of Brady material, and only after Defendant demanded disclosure of same.1 Nonetheless, the Defense has provided the Court and Government with several other examples of Brady material which should have been disclosed. It was not until January 23th, 2014, the date before the Government submitted its opposition to Teresa 's pretrial motions that additional Brady material was disclosed.
Specifically, on January 23th, 2014, the Government provided information regarding the Washington Mutual loan (the loan application causing the basis for the superseding indictment).
The loan officer for that transaction was Lisa Peloso. The loan application stated that Ms. Peloso had a face-to-face interview with Teresa prior to submission. On January 29th, 2014, the Government for the first time provided a summary of its interview with Ms. Peloso, stating that Ms. Peloso had advised the Government that in connection with the $261,250 loan which Teresa Giudice obtained from Washington Mutual Bank in July 2005, Ms. Peloso did not, in fact, conduct an interview with Teresa, nor did she even interact with Teresa Giudice prior to closing the loan.
The Defense has reason to believe that other evidence exists which is similar to that provided by Ms. Peloso. The failure to provide the Defense with same is improper, and in violation of the Government' s duties under Your Honor 's order. Should the Government continue to deny Teresa Brady material, the Defense reserves its right to move to dismiss the Indictment at a later date.
Additionally, on the two occasions that the Government has provided Brady material, it has only provided short, inadequate, and evasive summaries of the information it has obtained. At a minimum, the Government is required to make Brady disclosures that are "sufficiently specific and complete" to permit effective use by the defense. United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007). It is simply inevitable that when documents, recordings, or statements are summarized, detail and nuance are lost. Teresa cannot realistically be expected to use the Government' s summaries at trial in any fashion. Teresa has been and will be prejudiced as she will be precluded from exposing the jury to the witnesses ' own words.
It is for this very reason that the United States Attorney General’s Office issued a Memorandum acknowledging that production of the evidence in its original form is best. The Government' s policy correctly assumes that the only way for the Government to provide adequate Brady disclosures is to provide the Defense with "information in its original form." DAG Guidance Memo Step 3.C. This includes a thorough review of the following:
- The investigative agency' s files including any emails/electronic documents. DAG Guidance Memo, Step l.B.l. 25;
- All files relating to a confidential informant, not just the portion relating to the current case, including all proffer, immunity, and other agreements, validation assessments, payment information, and other potential witness impeachment information. Id. at Step 1.B.2.
- All evidence and information gathered during the investigation, including but not limited to anything obtained during searches or via subpoenas. Id. at Step 1.B . 3
- All substantive case-related communications including communications "1) among prosecutors and/or agents, (2) between prosecutors and/or agents and witnesses and/or victims, and (3) between victim-witness coordinators and witnesses and/or victims." Id. at Step l.B.5.
- Any potential Giglio information relating to law enforcement witnesses. Id. at Step 1.B.6; see also USAM § 9-5.100.1 (requiring "[e]ach investigative agency employee to inform prosecutors with whom they work of potential impeachment information as early as possible. Id.
- Any information obtained in witness interviews, or trial preparation meetings with witnesses. Id. at Step l.B. 8 .
As stated, the Government' s contention that Teresa' s argument related to Brady material is "moot" is insufficient, especially in light of the fact that the prosecution produced Brady material on the day before it submitted its opposition. The Government' s failure to produce Brady material is continuous, and the Court's intervention is required.
DEFENDANT TERESA GIUDICE WILL RELY ON ARGUMENTS MADE AT ORAL ARGUMENT AND IN HER MEMORANDUM IN SUPPORT OF HER PRETRIAL MOTIONS
In support of her pretrial motions, and in response to the Government' s opposition, Teresa Giudice respectfully relies on all other arguments made in her initial Memorandum in support of her pretrial motions. Teresa will also seek to support her motions during oral argument.
CONCLUSION
For the foregoing reasons, the defendant Teresa Giudice respectfully requests that the Court grant her pre-trial motions in their entirety.
Whew. Are you still with me? Crazy long, I know!
Joe's attorney filed a letter supporting the documents and wishes of Teresa and her attorneys in the matter of separating her from Joe when it comes time for the trial.
Photo Credit: TNYF/WENN.com
