Petition for Writ of Certiorari — Andrew Hackett, Petitioner v. United States

Supreme Court briefAug 4, 2026

Ask Donna

What actually matters in this document.

Text

______________________________________

No. ________________________

______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________

ANDREW HACKETT, PETITIONER,

vs.

UNITED STATES, RESPONDENT.

______________________________________

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

______________________________________

Petitioner, through counsel, asks leave to file the attached Petition for

Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

without prepayment of costs and to proceed in forma pauperis. Counsel was

appointed in the court of appeals under the Criminal Justice Act, 18 U.S.C. §

3006A(b). This motion is brought pursuant to Rule 39.1 of the Rules of the

Supreme Court of the United States.

Respectfully submitted,

August 24 , 2026

s/ Carlton F. Gunn

CARLTON F. GUNN

Attorney at Law

______________________________________

No. ________________________

______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_____________________________________

ANDREW HACKETT, PETITIONER,

vs.

UNITED STATES, RESPONDENT.

__________________________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

___________________________

PETITION FOR WRIT OF CERTIORARI

______________________________________

CARLTON F. GUNN

Attorney at Law

1751 Colorado Blvd., #384

Los Angeles, California 90041

Attorney for the Petitioner

QUESTIONS PRESENTED

Whether a district court may order restitution after a 90-day deadline set

in 18 U.S.C. § 3664(d)(5) when the district court did not make clear prior to

the deadline that it was going to order some restitution.

Whether a defendant has a Sixth Amendment right to counsel for a

colorable motion for new trial filed while his direct appeal is pending.

PARTIES TO THE PROCEEDING

Petitioner, Andrew Hackett, is an individual. The Respondent is the

United States of America.

TABLE OF CONTENTS

PAGE

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III.

STATUTORY AND CONSTITUTIONAL PROVISIONS

INVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV.

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

JURISDICTION IN THE COURTS BELOW.. . . . . . . . . . . . . . . . 2

FACTS MATERIAL TO CONSIDERATION OF THE

QUESTIONS PRESENTED... . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Charges, Other Bad Acts, and Conviction.. . . . . . . . . . . . . 3

Charges... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Other bad acts... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Trial and conviction.. . . . . . . . . . . . . . . . . . . . . . . . . 4

Sentencing and Restitution Order... . . . . . . . . . . . . . . . . . . 5

Discovery of Second Informant and Motion for New

Trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Present Appeals.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

REASONS FOR GRANTING THE PETITION.. . . . . . . . . . . . . . . . . . 12

THE COURT SHOULD GRANT THE WRIT TO RESOLVE

THE QUESTION OF WHETHER A DISTRICT COURT MAY

ORDER RESTITUTION AFTER THE 90-DAY DEADLINE

SET IN 18 U.S.C. § 3664(d)(5) WHEN THE DISTRICT COURT

DID NOT MAKE CLEAR IT WAS GOING TO ORDER SOME

RESTITUTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

The Circuits Are Divided on Whether the “at Least” Caveat

in Dolan Precludes an Order of Restitution When the

District Court Did Not Make Clear It Was Going to Order

Some Restitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

iii

TABLE OF CONTENTS (cont’d)

PAGE

VI.

It Is Important to Resolve the Circuit Split.. . . . . . . . . . . . 16

The Present Case Is an Excellent Vehicle for Resolving the

Question.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Force Should Be Given to the Dolan Caveat.. . . . . . . . . . 18

THE COURT SHOULD GRANT THE WRIT TO RESOLVE A

SPLIT IN THE CIRCUITS ABOUT WHETHER A

DEFENDANT HAS A SIXTH AMENDMENT RIGHT TO

COUNSEL FOR A MOTION FOR NEW TRIAL WHILE A

DIRECT APPEAL IS STILL PENDING.. . . . . . . . . . . . . . . . . . 20

There Is an Explicit Split in the Circuits on the Question of

Whether a Defendant Has a Sixth Amendment Right to

Counsel for a Motion for New Trial While a Direct Appeal

Is Still Pending.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

It Is Important to Resolve the Split in the Circuits.. . . . . . 24

This Case Is an Excellent Vehicle for Resolving the Split

Despite the Court of Appeals Disposition on Other

Grounds.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

The Seventh Circuit Side of the Split Is the Better View.. 28

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

APPENDIX 1 (court of appeals memorandum). . . . . . . . . . . . . . . . . . . . . . A001

APPENDIX 2 (district court restitution order and docket entry denying motion

to vacate order).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A007

APPENDIX 3 (docket entry denying motion for new trial and motion for

appointment of counsel). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A011

APPENDIX 4 (portion of government sentencing memorandum discussing

restitution). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A012

APPENDIX 5 (portion of sentencing continuance hearing discussing

restitution). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A014

TABLE OF CONTENTS (cont’d)

PAGE

APPENDIX 6 (portion of sentencing hearing discussing restitution). . . . . A019

APPENDIX 7 (initial judgment). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A022

APPENDIX 8 (restitution hearing).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A027

APPENDIX 9 (motion to vacate restitution order). . . . . . . . . . . . . . . . . . . . A042

APPENDIX 10 (motion for appointment of counsel for motion for new

trial). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A049

APPENDIX 11 (motion for new trial). . . . . . . . . . . . . . . . . . . . . . . . . . . . . A052

TABLE OF AUTHORITIES

CASES

PAGE

Barnes v. United States,

437 F.3d 1070 (11th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Dolan v. United States,

560 U.S. 605 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-20

Isbrandtsen Co. v. Johnson,

343 U.S. 779 (1952).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Johnson v. United States,

246 F.3d 655 (6th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Kitchen v. United States,

227 F.3d 1014 (7th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . 20-23, 28, 29

Menefield v. Borg,

881 F.2d 696 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Pennsylvania v. Finley,

481 U.S. 551 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 28, 29

Portalatin v. Blatt, Hasemiller, Leibsker & Moore, LLC,

900 F.3d 377 (7th Cir. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Rodgers v. Marshall,

678 F.3d 1149 (9th Cir. 2012),

rev’d on other grounds, 569 U.S. 58 (2013). . . . . . . . . . . . . . . . . . . . . 20

Rodriguez v. United States,

480 U.S. 522 (1987) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Trenkler v. United States,

268 F.3d 16 (1st Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

United States v. Aboumoussallem,

726 F.2d 906 (2d Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Adejumo,

848 F.3d 868 (8th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TABLE OF AUTHORITIES (cont’d)

CASES (cont’d)

PAGE

United States v. Anderson,

741 F.3d 938 (9th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Avenatti,

81 F.4th 171 (2d Cir. 2023),

cert. denied, 144 S. Ct. 2598 (2024). . . . . . . . . . . . . . . . . . . . . . . . 15, 16

United States v. Berry,

624 F.3d 1031 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Birrell,

482 F.2d 890 (2d Cir. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Bour,

804 F.3d 880 (7th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Cheetham,

527 Fed. Appx. 556 (5th Cir. 2013) (unpublished). . . . . . . . . . . . . . . . 14

United States v. Cohen,

888 F.2d 770 (11th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Crandon,

No. 21-4230, 2022 WL16960910 (4th Cir. Nov. 16, 2022)

(unpublished). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Curry,

Nos. 21-4457, 21-4713, 2023 WL 5842300 (4th Cir. Sept. 11, 2023)

(unpublished), cert. denied, 144 S. Ct. 1076 (2024). . . . . . . . . . . . 14, 17

United States v. Espinoza,

880 F.3d 506 (9th Cir. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Fu Sheng Kuo,

620 F.3d 1158 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Gatlin,

90 F.4th 1050 (11th Cir. 2024),

cert. denied, 145 S. Ct. 1065 (2025). . . . . . . . . . . . . . . . . . . . . . . . . . . 15

vii

TABLE OF AUTHORITIES (cont’d)

CASES (cont’d)

PAGE

United States v. Gurrola,

898 F.3d 524 (5th Cir. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Hackett,

123 F.4th 1005 (9th Cir. 2024). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Hackett,

No. 22-50142, 2024 WL 5153650 (9th Cir. Dec. 18, 2024)

(unpublished). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10

United States v. Hargrove,

No. 22-4296, 2024 WL 489477 (4th Cir. Feb. 4, 2024)

(unpublished). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Harrington,

410 F.3d 598 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Hayes,

219 Fed. Appx. 114 (3d Cir. 2007) (unpublished). . . . . . . . . . . . . . . . . 27

United States v. Hymas,

584 Fed. Appx. 361 (9th Cir. 2014) (unpublished). . . . . . . . . . . . . . . . 15

United States v. Lee,

513 F.2d 423 (D.C. Cir. 1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Lucas,

357 F.3d 599 (6th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. McClure,

546 F.2d 670 (5th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Montelongo,

420 F.3d 1169 (10th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Ottaviano,

738 F.3d 586 (3d Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

United States v. Redd,

562 F.3d 309 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

viii

TABLE OF AUTHORITIES (cont’d)

CASES (cont’d)

PAGE

United States v. Stevens,

935 F.2d 1380 (3d Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Tajeddini,

945 F.2d 458 (1st Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Texas,

507 U.S. 529 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

United States v. Thunderhawk,

860 F.3d 633 (8th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

United States v. Wade,

388 U.S. 218 (1967).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

United States v. Welebir,

433 Fed. Appx. 177 (4th Cir. 2011) (unpublished). . . . . . . . . . . . . . . . 14

United States v. Williamson,

706 F.3d 405 (4th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 28, 29

United States v. Wilson,

307 F.3d 596 (7th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

STATUTES AND RULES

18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. § 3664(d)(5).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 11-13, 18, 19

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 2255. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 24, 28

Rule 33, Federal Rules of Criminal Procedure. . . . . . . . . . . . . 2, 9, 21-24, 28, 29

Rule 404(b), Federal Rules of Evidence.. . . . . . . . . . . . . . . . . . . . . . . . 4, 26, 27

_____________________________________

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_____________________________________

Andrew Hackett petitions for a writ of certiorari to review the judgment

and opinion of the United States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The memorandum disposition of the court of appeals, which is

unpublished, is included in the appendix as Appendix 1. The district court’s

order imposing restitution and a docket page with an entry reflecting denial of

a motion to vacate the order are included as Appendix 2. The order denying

Petitioner’s motions for new trial and for appointment of counsel, which was

recorded only in a docket entry, are reflected in the docket page included as

Appendix 3.

II.

JURISDICTION

The judgment of the court of appeals was entered on May 27, 2026. See

App. A001. The jurisdiction of this Court is invoked pursuant to 62 Stat. 928,

28 U.S.C. § 1254(1).

III.

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

18 U.S.C. § 3664(d)(5) provides:

If the victim’s losses are not ascertainable by the date that

is 10 days prior to sentencing, the attorney for the

Government or the probation officer shall so inform the

court, and the court shall set a date for the final

determination of the victim’s losses, not to exceed 90 days

after sentencing.

Rule 33(b)(1) of the Federal Rules of Criminal Procedure provides:

Any motion for a new trial grounded on newly discovered

evidence must be filed within 3 years after the verdict or

finding of guilty. If an appeal is pending, the court may not

grant a motion for a new trial until the appellate court

remands the case.

The Sixth Amendment to the Constitution provides:

In all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his defense.

IV.

STATEMENT OF THE CASE

JURISDICTION IN THE COURTS BELOW.

The district court had jurisdiction under 18 U.S.C. § 3231. The court of

appeals had jurisdiction under 28 U.S.C. § 1291.

FACTS MATERIAL TO CONSIDERATION OF THE QUESTIONS

PRESENTED.

Charges, Other Bad Acts, and Conviction.

Charges.

Petitioner and four codefendants were charged with one count of

conspiracy to commit securities fraud and one count of substantive securities

fraud. See Dist. Ct. Dkt. #1.1 The indictment alleged a “pump-and-dump”

scheme with the stock of a company initially named First Harvest Corp. but

then renamed Arias Intel Corp, and also known by its “ticker symbol” of

ASNT. See Dist. Ct. Dkt. #1, at 2. The scheme was to artificially inflate the

price of the stock and then engage in manipulative trading. See Dist. Ct. Dkt.

#1, at 2-3. Petitioner was alleged to have loaned the company money in

exchange for notes convertible into company stock, engaged call room

operators to promote the stock, and engaged in manipulative trading. See Dist.

Ct. Dkt. #1, at 4-5.

“Dist. Ct. Dkt.” refers to the docket in United States v. Hackett (C.D.

Cal. No. 2:15-cr-00407-TJH). “Dkt.(23-595)” refers to the docket in United

States v. Hackett (9th Cir. No. 23-595). “Dkt.(25-2247)” refers to the docket in

United States v. Hackett (9th Cir. No. 25-2247).

Other bad acts.

The specific “pump-and-dump” scheme alleged in the indictment was

not the only such scheme the government claimed Petitioner had been

involved in. In a motion in limine filed prior to trial, it claimed there were

multiple other securities which Petitioner and other defendants had schemed to

“pump and dump.” Dist. Ct. Dkt. #172, at 2, 4-7. These other securities had

been discussed in conversations Petitioner and his codefendants had with an

informant who was being used in the investigation. See Dist. Ct. Dkt. #172, at

4-7.

Based on these discussions being “contemporaneous,” Dist. Ct. Dkt.

#172, at 10, as well as other factors, the government argued the discussions

were admissible in the charged case. The government argued the evidence was

“inextricably intertwined” and “intrinsic evidence” of the charged scheme, so

Federal Rule of Evidence 404(b) did not apply. Dist. Ct. Dkt. #172, at 2.

Alternatively, it argued the evidence was admissible under Rule 404(b)

“because it shows defendants’ knowledge, plan, and modus operandi.” Dist.

Ct. Dkt. #172, at 2. The district court initially assigned to the case agreed with

the government, at least in part, and the district court that ultimately tried the

case also agreed. See Dkt.(25-2247) #6.1, at 4 (opening brief collecting

citations to record).

Trial and conviction.

The government ultimately chose to present evidence of just the charged

scheme, using an informant, a cooperating codefendant, and a cooperating

witness charged in a different case. See Dkt.(25-2247) #6.1, at 6-11

(summarizing testimony). The government also introduced some bank records

and text message evidence. See Dkt.(25-2247) #6.1, at 11-12. After a trial

lasting a little more than a week, the jury found Petitioner guilty of both the

conspiracy count and the substantive securities fraud count. See Dist. Ct. Dkt.

#301.

Sentencing and Restitution Order.

Prior to sentencing, the government filed a sentencing memorandum

indicating it intended to seek restitution, but “request[ing] . . . that a restitution

hearing be calendared for approximately 45 days after the initial sentencing

hearing, given the nuanced analysis necessary to properly calculate victim-byvictim losses here.” App. A013. The district court wondered in a subsequent

hearing whether it would have jurisdiction once it had sentenced Petitioner,

but the government assured the court it would have jurisdiction. See App.

A015-17. The probation officer confirmed this, telling the court that 18 U.S.C.

§ 3664(d)(5) “allows you to set a restitution hearing 90 days after sentencing

to fully determine the restitution and square that away.” App. A018.

The court then held a sentencing hearing on June 9, 2022. See Dist. Ct.

Dkt. #412. It imposed a custody sentence of 46 months and a supervised

release term of three years. See Dist. Ct. Dkt. #413. It put off the question of

restitution, as the prosecutor and probation officer had suggested. It asked the

prosecutor, “With respect to restitution, what is the government’s request in

terms of the timing of the restitution hearing?,” and the prosecutor responded:

I think 45 days out, or approximately, would be

great. We can go ahead and gather up the victim impact

statements that we’ve received so far. The office will

receive those until the day I retire. But it gives us a chance

to accumulate at least as many as we can get. We’ll

accumulate those, present the restitution analysis to the

defense, hopefully work something out. If we can’t, we’ll

come to you to settle it.

App. A020-21.

The court scheduled a hearing for August 12, 2022, but, when defense

counsel filed a motion stating, “Defendant Andrew Hackett has been in transit

within the Bureau of Prisons and [defense] counsel has been unable to

communicate with Defendant concerning this matter,” Dist. Ct. Dkt. #429, at

1, the court continued the hearing to September 16, 2022. See Dist. Ct. Dkt.

#430. The hearing was then continued again, to November 18, 2022, “[o]n the

Court’s own motion, due to the defendant having not been transported to the

Southern District [of California],” Dist. Ct. Dkt. #446.

In the meantime, the government filed a motion seeking restitution of

$67,184.91. See Dist. Ct. Dkt. #437. Petitioner’s attorney did not file a written

response, but did object at the hearing. Among the arguments he made was

that there was insufficient evidence to tie any losses at all to Petitioner’s

conspiracy.

There is no evidence that any of the so-called victims

purchased their shares during the pump portion or the dump

portion, because we have no indication when they

purchased, and their victim impact statements did not

identify – do not all identify when they purchased. And I’ve

reviewed them.

Also as the Court recalls, there were periods in which

the price went down significantly of the stock and people

purchased – may have purchased during that period. So at

this point, we have no analysis when their purchase date

was.

App. A032.

After hearing this argument, the court told the prosecutor, “I will take

you up on your offer to submit a proposed order,” and said, “I’ll take this

matter under submission.” App. A038. He told Petitioner’s attorney, “any

additional submissions, if you choose to make them, I would ask that you

submit those within the next two weeks. And you can expect – both parties can

expect an order to follow after that two-week time period has elapsed.” App.

A038-39. But the court issued an order in less than two weeks and before

Petitioner’s attorney’s additional submissions, ordering the full $67,184.91

restitution requested by the government. See App. A007-09.

With the order already issued, Petitioner’s attorney filed a motion to

vacate the order. See App. A042-48. Again he argued that “[t]he Government

has not met its burden in calculating the losses of the victims, nor in attributing

such losses to the defendant.” App. A048. The government filed an opposition,

see Dist. Ct. Dkt. #477, and the district court eventually denied the motion, but

not until five months after the restitution hearing and more than nine months

after the original sentencing, see App. A010 (ECF 479).

Discovery of Second Informant and Motion for New Trial.

Petitioner had immediately appealed his conviction and sentence after

the custody sentence was imposed, see United States v. Hackett, 123 F.4th

1005 (9th Cir. 2024); United States v. Hackett, No. 22-50142, 2024 WL

5153650 (9th Cir. Dec. 18, 2024) (unpublished), and filed a separate appeal of

the restitution order, see Dist. Ct. Dkt. #480, which proceeded separately from

the first appeal. While these appeals were pending, national newspapers

published articles about an informant who had given the FBI false information

about President Biden and/or President Biden’s family. App. A052. The

informant’s name was Alexander Smirnov, App. A052, and he was

subsequently indicted for making false statements to the FBI about President

Biden and/or President Biden’s family, App. A056; see United States v.

Alexander Smirnov, No. 2:24-cr-00091-ODW (C.D. Cal. Nov. 1, 2024), ECF

No. 1.

Based in part on discovery and in part on his own recollection from the

time he was being investigated, Petitioner realized that Mr. Smirnov was the

same person as an “Alex” who had contacts with him about a security whose

“ticker symbol” was WRIT. See App. A053, A069. This was one of the

securities the government had identified in its motion in limine as

“inextricably intertwined,” “intrinsic evidence,” and “show[ing] defendants’

knowledge, plan, and modus operandi surrounding pump-and-dump schemes.”

App. A058-59. At the time of Petitioner’s trial, the government had never

identified “Alex” as a government informant and had provided no recordings

or reports of his separate contacts with Petitioner. See App. A057, A060-63,

A069-70. Indeed, in one report the government did provide because it was a

contact that included the ASNT informant, the government described “Alex”

as “Alex last name unknown.” App. A062, A080.

Based on his conclusion that “Alex” was in fact a government

informant, Petitioner filed a motion for appointment of counsel to file a motion

for new trial – on March 24, 2024. See App. A049-51. Two weeks later, he

supplemented that motion with an exhibit that was a letter from his appellate

counsel to the government. See Dist. Ct. Dkt. #493. This letter explained

Petitioner’s conclusion that the “Alex” who made contact with him was a

government informant and asked for all recordings, reports, or notes of the

informant’s contact with Petitioner. See App. A069-70. An Assistant United

States Attorney replied to appellate counsel’s letter a month later with an

assertion that “the United States complied with its obligations under Rule 16,

Brady, Jencks, and Giglio.” App. A072. But this was not because the “Alex”

who had contacted Petitioner was not a government informant. Another

government attorney in an SEC civil proceeding against Petitioner had

confirmed “Alex” was Alexander Smirnov. App. A053.

The district court did not act on Petitioner’s motion for appointment of

counsel in any way. With the three-year deadline for a motion for new trial

based on newly discovered evidence, see Fed. R. Crim. Pro. 33(b)(1),

approaching, Petitioner filed, on July 5, 2024, a pro se “Motion for New Trial

Based on Newly Discovered Evidence and Prosecutorial Misconduct.” App.

A052-83. The motion explained “Alex” was a government informant who had

made contact with Petitioner about the WRIT security during the ASNT

investigation, App. A053, A060-62; suggested this contact should have

produced recordings, reports, and/or notes, as well as records of any WRIT

trades, and such material had not been disclosed, App. A062-63; and pointed

out the government itself had argued the discussions of WRIT were

“inextricably intertwined,” “intrinsic evidence,” and “show[ed] defendants’

knowledge, plan, and modus operandi surrounding pump-and-dump schemes,”

App. A058-59. The motion went on to argue that this newly discovered

evidence warranted a new trial. See App. A060-65. The motion included the

report that referred to “Alex” as “Alex last name unknown.” See App. A06162, A080. It also included a transcript of an undercover recording in which the

informant who had testified in Petitioner’s trial said he “assume[d] that uh,

WRIT, is uh, is [Alex’s] deal” and was told that was correct. App. A061,

A075.

Even with the substantive motion filed, the district court failed to act. It

did not grant a new trial. It did not appoint counsel. It did not even order a

response from the government. Petitioner’s appeal of his convictions was still

pending and remained pending until it was decided on December 18, 2024. See

United States v. Hackett, No. 22-50142, 2024 WL 5153650 (9th Cir. Dec. 18,

2024). This was more than eight and a half months after the motion for

appointment of counsel was filed and more than five months after the motion

for new trial was filed. And the restitution appeal remained pending.

A year after the motion for appointment of counsel was filed, and still

without requiring any response from the government, the district court denied

both the motion for appointment of counsel and the substantive motion for

new trial. See App. A011 (ECF 499). The court gave no explanation and did

not even issue a freestanding order. It issued only a docket entry stating:

MINUTE ORDER Denying 492 Motion to Appoint

Counsel as to Andrew Hackett (1); Denying 496 Motion for

New Trial as to Andrew Hackett (1). (no document

attached)

App. A011 (ECF 499).

Present Appeals.

After the order denying the motions for new trial and appointment of

counsel, Petitioner filed a third appeal. See Dist. Ct. Dkt. #500. This appeal

was separately briefed from the restitution appeal, but consolidated with the

restitution appeal for argument and judgment, as reflected in the memorandum

opinion which is the subject of this Petition.

Among the arguments made in the restitution appeal was an argument

that the district court did not have authority to issue its restitution order. See

Dkt.(23-595) #14.1, at 11-14. Petitioner pointed to a 90-deadline set by 18

U.S.C. § 3664(d)(5) and argued Petitioner’s case differed from Dolan v.

United States, 560 U.S. 605 (2010), where this Court held an order after the

90-day deadline was permissible. See Dkt.(23-595) #14.1, at 11-14. Petitioner

pointed out the district court in Dolan had made clear some restitution would

be ordered, the Dolan opinion had relied on this fact, and the district court

here had not made clear some restitution would be ordered. See Dkt.(23-595)

#14.1, at 11-14. The court of appeals rejected this argument on the ground that

Petitioner “fails to demonstrate how any delay prejudiced him,” without

addressing Dolan. App. A003.

Among the arguments made in the new trial motion appeal was an

argument that refusing to appoint counsel violated Petitioner’s Sixth

Amendment right to counsel because there is a right to counsel for a motion

for new trial filed while an appeal is pending. See Dkt.(25-2247) #6.1, at 1928. Petitioner acknowledged a split in the circuits on this issue, but argued the

court should follow the authority recognizing a right to counsel. See Dkt.(2511

2247) #6.1, at 22-25. The court of appeals assumed there was a right to

counsel, but also assumed the right does not attach if the motion has “no

colorable basis in fact or law,” App. A004, and found no colorable basis here,

see App. A005.

REASONS FOR GRANTING THE PETITION

THE COURT SHOULD GRANT THE WRIT TO RESOLVE THE

QUESTION OF WHETHER A DISTRICT COURT MAY ORDER

RESTITUTION AFTER THE 90-DAY DEADLINE SET IN 18 U.S.C. §

3664(d)(5) WHEN THE DISTRICT COURT DID NOT MAKE CLEAR IT

WAS GOING TO ORDER SOME RESTITUTION.

In Dolan v. United States, 560 U.S. 605 (2010), this Court considered

the impact of a district court’s failure to meet the deadline for ordering

restitution set in 18 U.S.C. § 3664(d)(5). That statute provides:

If the victim’s losses are not ascertainable by the date that

is 10 days prior to sentencing, the attorney for the

Government or the probation officer shall so inform the

court, and the court shall set a date for the final

determination of the victim’s losses, not to exceed 90 days

after sentencing.

A five-member majority in Dolan held, over a dissent by Chief Justice

Roberts, that § 3664(d)(5) does not create an absolute bar on an order of

restitution after the deadline has passed. The Court explained there are three

types of statutory time limits and concluded this deadline was neither a

jurisdictional deadline nor a “claims-processing” deadline, but “a time -related

directive that is legally enforceable but does not deprive a judge or other

public official of the power to take the action to which the deadline applies if

the deadline is missed.” Dolan, 560 U.S. at 610-11. The Court then held, “The

fact that a sentencing court misses the statute’s 90-day deadline, even through

its own fault or that of the Government, does not deprive the court of the

power to order restitution.” Id. at 611.

This holding came with an important caveat, however. The holding, as

summarized at the very beginning of the opinion, was:

[A] sentencing court that misses the 90-day deadline

nonetheless retains the power to order restitution – at least

where, as here, the sentencing court made clear prior to

the deadline’s expiration that it would order restitution,

leaving open (for more than 90 days) only the amount.

Id. at 608 (emphasis added). The Court did not expressly address whether

restitution may be ordered where the district court has not “made clear prior to

the deadline’s expiration that it would order restitution, leaving open (for more

than 90 days) only the amount.”

The Circuits Are Divided on Whether the “at Least” Caveat in

Dolan Precludes an Order of Restitution When the District Court Did Not

Make Clear It Was Going to Order Some Restitution.

Multiple circuits have given weight to the caveat in Dolan. The Third

Circuit in United States v. Ottaviano, 738 F.3d 586 (3d Cir. 2013),

characterized Dolan as holding that § 3664(d)(5) “does not divest the District

Court of the authority to order restitution in situations such as this one, where

the sentencing court made clear prior to the deadline’s expiration that it would

order restitution.” Id. at 599 n.4. The Fourth Circuit has directly quoted

Dolan’s caveat, albeit in unpublished opinions. See United States v. Crandon,

No. 21-4230, 2022 WL16960910, at *1 (4th Cir. Nov. 16, 2022) (unpublished)

(quoting “made clear that restitution was applicable” portion of holding). See

also United States v. Hargrove, No. 22-4296, 2024 WL 489477, at *2 (4th Cir.

Feb. 4, 2024) (unpublished) (quoting full Dolan holding); United States v.

Welebir, 433 Fed. Appx. 177, 178 (4th Cir. 2011) (unpublished) (same). Cf.

United States v. Curry, Nos. 21-4457, 21-4713, 2023 WL 5842300, at *6 (4th

Cir. Sept. 11, 2023) (unpublished) (reading Dolan as having left question open

and not deciding question because any error was not plain), cert. denied, 144

S. Ct. 1076 (2024). The Fifth Circuit has quoted Dolan’s holding with the

caveat, see United States v. Gurrola, 898 F.3d 524, 542 (5th Cir. 2018), and

has stated on its own that missing the deadline does not preclude restitution

“if, as was true in this case, the defendant was on notice of the court’s

intention to do so,” United States v. Cheetham, 527 Fed. Appx. 556, 557 (5th

Cir. 2013) (unpublished).

And there are more. The Seventh Circuit has stated, citing Dolan, that

“yet if the district judge timely makes clear that he will order restitution, he

retains the power to set the restitution amount after the 90-day deadline.”

United States v. Bour, 804 F.3d 880, 888 (7th Cir. 2015). The Eighth Circuit

has similarly recognized this limit, stating, “If the District Court at least makes

clear at sentencing that it plans to order restitution, the fact that it ‘misses the

statute’s 90-day deadline, even through its own fault or that of the

Government, does not deprive the court of the power to order restitution.’”

United States v. Adejumo, 848 F.3d 868, 870 (8th Cir. 2017) (quoting Dolan,

560 U.S. at 611). The Eleventh Circuit, like the Fourth, see Crandon, quoted

supra, has highlighted the Dolan caveat, stating, “As the Supreme Court has

explained, ‘a sentencing court that misses the 90-deadline nonetheless retains

the power to order restitution’ if it ‘made clear prior to the deadline’s

expiration that it would.’” United States v. Gatlin, 90 F.4th 1050 (11th Cir.

2024) (quoting Dolan, 560 U.S. at 608), cert. denied, 145 S. Ct. 1065 (2025).

Indeed, even the Ninth Circuit, despite its unpublished decision in this

case, has given weight to the Dolan caveat. It quoted the Dolan holding with

the caveat in United States v. Fu Sheng Kuo, 620 F.3d 1158 (9th Cir. 2010),

stating that “the Supreme Court held that ‘a sentencing court that misses the

90-deadline nonetheless retains the power to order restitution – at least where,

as [in Dolan], the sentencing court made clear prior to the deadline’s

expiration that it would order restitution, leaving open (for more than 90 days)

only the amount.’” Fu Sheng Kuo, 620 F.3d at 1163 (quoting Dolan, 560 U.S.

at 608). The Ninth Circuit then applied the caveat to vacate a post-deadline

order in United States v. Hymas, 584 Fed. Appx. 361 (9th Cir. 2014)

(unpublished), where the district court “took the entire ‘issue of restitution’

under advisement.” Id. at 362. The unpublished disposition in this case creates

an intra-circuit conflict with Hymas, but that does not detract from the fact that

the Ninth Circuit has at least suggested the Dolan caveat is a real limit.

On the other side of the coin, at least one circuit has held the Dolan

caveat simply left the issue open and held restitution may be ordered after the

deadline even without any prior warning to the defendant. This was the

Second Circuit in United States v. Avenatti, 81 F.4th 171 (2d Cir. 2023), cert.

denied, 144 S. Ct. 2598 (2024). It reasoned:

Dolan does not hold that a court is barred from awarding

restitution more than 90 days after sentencing unless it

“made clear prior to the deadline’s expiration that it would

order restitution.” It states only that the court retains the

power to award restitution more than 90 days after

sentencing “at least where” it made its intent to award

restitution clear within 90 days of sentencing. Id. (emphasis

added). In other words, Dolan identifies the clearest – not

the exclusive – circumstance for a court to continue to

exercise its [Mandatory Victims Restitution Act] restitution

authority past the statutory 90-day period.

Avenatti, 81 F.4th at 204 (emphasis in original).

This places the Second Circuit in conflict with the other circuits’

repeated quotation of the Dolan caveat as if it is a real limit. While the other

circuits usually went on to find there had been sufficient notice, their

continued emphasis on the caveat makes it more than just passing dictum.

Granting the petition here will resolve whether the caveat stated in Dolan was

a real limit, as suggested by the other circuits’ continued repetition, or just

leaving the question open for another day, as the Second Circuit read it.

It Is Important to Resolve the Circuit Split.

It is important to resolve the circuit split because there are cases in

which a district court leaves open the entire question of restitution rather than

just its amount. This case is one illustration. The Second Circuit Avenatti case

is another.

And there are still others. As one example, the defendant in United

States v. Thunderhawk, 860 F.3d 633 (8th Cir. 2017), sought to rely on the

caveat, “argu[ing] that Dolan should not apply because the district court in this

case did not make the initial determination that restitution was owing until

more than ninety days after sentencing.” Thunderhawk, 860 F.3d at 636. As

another example, the Fourth Circuit in United States v. Curry, Nos. 21-4457,

21-4713, 2023 WL 5842300 (4th Cir. Sept. 11, 2023), cert. denied, 144 S. Ct.

1076 (2024), recognized “[t]he question of whether this difference – that the

restitution amount was no longer left open and had to be amended – makes

Dolan inapplicable.” Curry, 2023 WL 5842300, at *6.2

The Present Case Is an Excellent Vehicle for Resolving the

Question.

The present case is an excellent vehicle for resolving the question,

because it squarely presents the question. First, this does not even approach

being a case where the district court made clear it was going to order some

restitution. All there was here were (1) an inquiry by the district court about

“the government’s request in terms of the timing of the restitution hearing,”

with agreement to a suggestion by the prosecutor of 45 days, App. A020,

which was later extended; (2) a statement by the prosecutor that he would

“present the restitution analysis to the defense, hopefully work something out

[, and] [i]f we can’t, we’ll come to you to settle it,” App. A020-21; and (3) a

judgment that says nothing about restitution other than, “If ordered to pay

restitution, the defendant must notify the court and United States Attorney of

The court avoided deciding the question in Curry because its review

was limited to plain error review and it found any error not clearly obvious.

See id.

any material change in the defendant’s economic circumstances,” App. A022

(emphasis added). The district court did not state that at least some restitution

would be due and the hearing was just to determine the amount, and, when the

hearing took place, defense counsel argued there should be no restitution at all.

This is thus a case where (a) the district court gave no indication at all

that it was definitely going to order some restitution and (b) there was a

dispute about the question.

Force Should Be Given to the Dolan Caveat.

Finally, the view that force should be given to the Dolan caveat is the

better view. While the reasons for enforcing the § 3664(d)(5) deadline that

Chief Justice Roberts gave in his dissent did not carry the day in Dolan, where

the district court had made clear some restitution would be ordered, they

should carry the day where the district court did not make clear some

restitution would be ordered. At least three of Chief Justice Roberts’s concerns

are even stronger then.

First, the general rule that a sentence may not be modified after it is

imposed is a “bedrock rule[ ]” to which § 3664(d)(5) is a “limited exception.”

Dolan, 560 U.S. at 623 (Roberts, C.J., dissenting). And an exception to a

bedrock rule should be “read with a presumption favoring the retention of

long-established and familiar principles, except when a statutory purpose to

the contrary is evident.” United States v. Texas, 507 U.S. 529, 534 (1993)

(quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952)). See also

Portalatin v. Blatt, Hasemiller, Leibsker & Moore, LLC, 900 F.3d 377, 385

(7th Cir. 2018) (applying principle that courts “construe statutes in derogation

of common law strictly and narrowly” and citing United States v. Texas). It is

bad enough that Dolan found the limit in § 3664(d)(5) can be ignored when it

is just the amount of restitution that is left open. It goes much further to ignore

§ 3664(d)(5) when the threshold question of whether there will be restitution is

left open.

Second, extending Dolan to the question of whether there will be

restitution goes even further in overriding the statutory language. As Chief

Justice Roberts explained, “‘no legislation pursues its purposes at all costs,’

and ‘it frustrates rather than effectuates legislative intent simplistically to

assume that whatever furthers the statute’s primary objective must be the

law.’” Dolan, 560 U.S. at 625 (Roberts, C.J., dissenting) (quoting Rodriguez v.

United States, 480 U.S. 522, 525-26 (1987) (per curiam)) (emphasis in

original). And the further the statute is extended beyond its plain language, the

more this is true.

Third, extending Dolan to the question of whether there will be

restitution is even more disrespectful of the balance Congress chose to strike.

As Chief Justice Roberts explained, “Congress had to balance against the

interest in restitution the contrary interest in promptly determining the

defendant’s sentence” and “[t]he balance struck was clearly set forth in the

statute.” Dolan, 560 U.S. at 625 (Roberts, C.J., dissenting). Dolan has already

“overrid[den] the balance [Congress] struck,” id., at 626, and extending it

further overrides that balance even more.

In sum, the concerns expressed in Chief Justice Roberts’ Dolan dissent

carry even more weight here, and the difference is enough that they should

prevail here. The caveat in Dolan that a restitution order may be made after the

deadline “at least where, as here,” the district court has made clear it would

order some restitution should be treated the way most circuits have viewed it –

as limiting the district court’s authority to those circumstances.

THE COURT SHOULD GRANT THE WRIT TO RESOLVE A SPLIT

IN THE CIRCUITS ABOUT WHETHER A DEFENDANT HAS A SIXTH

AMENDMENT RIGHT TO COUNSEL FOR A MOTION FOR NEW TRIAL

WHILE A DIRECT APPEAL IS STILL PENDING.

There Is an Explicit Split in the Circuits on the Question of

Whether a Defendant Has a Sixth Amendment Right to Counsel for a Motion

for New Trial While a Direct Appeal Is Still Pending.

The courts of appeals generally agree there is a right to counsel for a

motion for new trial filed before judgment. See Rodgers v. Marshall, 678 F.3d

1149, 1158 (9th Cir. 2012) (collecting cases), rev’d on other grounds, 569

U.S. 58 (2013). They also generally agree there is no right to counsel for such

a motion filed after the appellate process has ended. See United States v.

Harrington, 410 F.3d 598, 600 (9th Cir. 2005) (collecting cases).

But there is a clear and explicit split on the question presented here –

whether there is a right to counsel for a motion for new trial after judgment but

while an appeal is pending, as opposed to after the appeal is over. The first

circuit to consider the issue was the Seventh Circuit in Kitchen v. United

States, 227 F.3d 1014 (7th Cir. 2000). It held the constitutional right to

counsel did attach to a motion for new trial filed while the defendant’s appeal

was pending. It explained:

[T]he nature of a motion for a new trial supports Kitchen’s

right to counsel: in a Rule 33 proceeding, a defendant must

face an adversary proceeding that – like a trial – is

governed by intricate rules that to a layperson would be

hopelessly forbidding. An unrepresented defendant – like

an unrepresented defendant at trial – is unable to protect the

vital interests at stake. Kitchen could not have presented his

new evidence for the first time in his direct appeal without

having first fully pursued his Rule 33 motion. The outcome

of Kitchen’s motion for a new trial (including the outcome

of an appeal from an adverse judgment) could have had a

substantial impact on the course of his criminal

proceedings. It would not have, under any circumstances,

entitled him to release, but were the motion to be granted,

Kitchen would have received a second trial and an

opportunity to present a (presumably) enhanced defense.

Id. at 1018 (cleaned up).

Kitchen also explained why cases cited by the government were

distinguishable. “[T]he government overlooks the fact that [United States v.]

Tajeddini[, 945 F.2d 458 (1st Cir. 1991)], [United States v.] Lee[, 513 F.2d

423 (D.C. Cir. 1975)], and [United States v.] Birrell[, 482 F.2d 890 (2d Cir.

1973),] addressed only Rule 33 motions that were decided after the decisions

in the respective defendants’ direct appeals. See Tajeddini, 945 F.2d at 460;

Lee, 513 F.2d at 424; Birrell, 482 F.2d at 891-92.” Kitchen, 227 F.3d at 1019

(emphasis in original). And:

[I]t is wide of the mark to label a pre-appeal motion for a

new trial as a “collateral attack.” We have noted the

converse proposition that when made following the

outcome of the direct appeal, a Rule 33 motion plainly is

‘collateral’ in the usual sense of that term. Here, however,

Kitchen’s direct appeal had not yet been decided, so his

motion for a new trial clearly did not follow the outcome of

his direct appeal. Instead we can say that his motion for a

new trial was in aid of the appeal of the conviction and

sentence. The conclusion that Kitchen’s motion for a new

trial was not a collateral attack is further supported by the

procedural consideration that, had Kitchen’s counsel filed a

notice of appeal from the denial of the motion, the Rule 33

appeal could have been consolidated with Kitchen’s direct

appeal. It would make no sense to label a pre-direct appeal

Rule 33 motion as a “collateral attack” on the conviction,

when the appeal from such a proceeding could be

consolidated with the direct appeal of the conviction. A

properly denominated collateral attack on a defendant’s

conviction – like a § 2255 motion – could never be

consolidated with the direct appeal, and is not even part of

the criminal proceeding itself. Therefore, because Kitchen’s

motion for a new trial was decided before our decision in

his direct appeal, it may not be deemed a “collateral attack”

on his conviction, and Kitchen had a right to counsel in

prosecuting such a motion and in taking an appeal from its

denial.

Id. (cleaned up).

The other circuit which has considered the right to counsel for a motion

for new trial filed while an appeal is pending is the Fourth Circuit in United

States v. Williamson, 706 F.3d 405 (4th Cir. 2013). Williamson first noted that

“once the direct appeal has been decided, the Sixth Amendment right to

counsel comes to an end.” Id. at 416. It cited Pennsylvania v. Finley, 481 U.S.

551 (1987), in which this Court held there is no Sixth Amendment right to

counsel in postconviction proceedings after appeal. See Williamson, 706 F.3d

at 416.

Williamson then reasoned, “As a corollary, a petitioner has no Sixth

Amendment right to counsel in order to mount a collateral challenge to his

conviction.” Id. It went on to point to cases holding a motion for new trial does

not toll the statute of limitations for a 28 U.S.C. § 2255 motion because it is

“not part of the direct appeal.” Id. at 417 (citing Johnson v. United States, 246

F.3d 655, 657 (6th Cir. 2001); Trenkler v. United States, 268 F.3d 16, 22 (1st

Cir. 2001); and Barnes v. United States, 437 F.3d 1070, 1079 (11th Cir.

2006)). It concluded:

If a motion is not part of the direct appeal, then the

motion is “collateral” in the usual sense of that word.

Petitioners have no Sixth Amendment right to counsel for

collateral proceedings. Accordingly, we find that

Williamson had no Sixth Amendment right to counsel to

pursue his Rule 33 motion in the trial court, made as it was

nearly three years after he noticed his appeal.

Williamson, 706 F.3d at 417-18 (citation and footnote omitted.). The court

recognized Kitchen held differently, but declined to follow it. See Williamson,

706 F.3d at 418.

There are also other cases that are distinguishable but are in tension with

Kitchen and so suggest other circuits may not follow Kitchen. Those are four

cases – from four other circuits – that, as argued by the government in its

briefing below, have labeled motions for new trial a form of “collateral

attack.” See United States v. Redd, 562 F.3d 309, 312-13 (5th Cir. 2009);

Barnes, 437 F.3d at 1079; Trenkler, 268 F.3d at 20; Johnson, 246 F.3d at 658.

See also Dkt.(25-2247) #18.1, at 28 (government brief citing and quoting

foregoing cases). These cases are distinguishable in that they were addressing

the different issue of whether a new trial tolls the statute of limitations for 28

U.S.C. § 2255 motions, see Redd, 562 F.3d at 311; Barnes, 437 F.3d at 1077;

Trenkler, 268 F.3d at 20; Johnson, 246 F.3d at 657, and two of them are

additionally distinguishable because the new trial motions were filed after the

defendants’ direct appeals had ended, see Trenkler, 268 F.3d at 18-19;

Johnson, 246 F.3d at 656. Still, these cases do conflict in using the “collateral

attack” label that Kitchen rejected.

In sum, there is a direct conflict between two circuits and an arguably

greater conflict if the language in other cases is taken into account. Review by

this Court will resolve the conflict.

It Is Important to Resolve the Split in the Circuits.

It is important to resolve the split in the circuits because a new trial

motion can be critical in a criminal case. It is one of two last chances a

defendant has to challenge his conviction. The other is a 28 U.S.C. § 2255

motion, but 2255 motions have limits. First, a 2255 motion “may only be used

to collaterally attack a conviction and sentence ‘upon the ground that the

sentence was imposed in violation of the Constitution or laws of the United

States.’” United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010) (quoting

§ 2255). Second, “short of proof of actual innocence, claims solely based on

new evidence are generally not cognizable on habeas.” Berry, 624 F.3d at

1038. It is only through a motion for new trial that a defendant can develop

and present new evidence short of “actual innocence.” See Fed. R. Crim. Pro.

33(b)(1) (allowing motion for new trial “grounded on newly discovered

evidence”).

Counsel is invaluable in litigating a new trial motion, moreover. First,

trained counsel will have greater experience and resources in conducting the

factual investigation necessary to (a) fully develop the newly discovered

evidence and (b) make an effective presentation of that evidence to the district

court. See, e.g., Dkt.(25-2247) #6.1, at 29-32 (opening brief discussing ways in

which counsel could have more effectively investigated in this case); Dkt.(252247) #23.1, at 12-13 (reply brief discussing same). Second, trained counsel

will understand the law those facts must be fit within – which in Petitioner’s

case was the highly complex law of securities fraud.

This suggests counsel will be just as much help in litigating a new trial

motion as in litigating the original trial. As the Ninth Circuit explained in

Menefield v. Borg, 881 F.2d 696 (9th Cir. 1989):

An effective motion for a new trial ordinarily requires a

lawyer’s understanding of legal rules and his experience in

presenting claims before a court. The presence of trained

counsel at this stage ensures that the most favorable

arguments will be presented and “that the accused’s

interests will be protected consistently with our theory of

criminal prosecution.”

Id. at 699 (quoting United States v. Wade, 388 U.S. 218, 227 (1967)).

This Case Is an Excellent Vehicle for Resolving the Split Despite

the Court of Appeals Disposition on Other Grounds.

This case is an excellent vehicle for resolving the right to counsel

question, because the question was clearly preserved and presented to the

district court. Petitioner asked for counsel as soon as he discovered the new

evidence – on what appears to be a district court form. He then supplemented

the request with a letter from his appellate counsel to the government that

explained the new evidence. He eventually filed his substantive motion pro se,

but that was only because the district court had not yet acted and the statutory

deadline for filing a motion was approaching, compare App. A052 (motion

filed July 5, 2024) with Dist. Ct. Dkt. #301 (verdict entered August 2, 2021).

And the motion provided additional detail showing a need for counsel. As a

result of all this, the right to counsel question was squarely teed up and

presented in the district court.

The government might argue this case is not a good vehicle because the

court of appeals resolved the appeal on the ground there was no “colorable

basis” for a new trial motion, see supra p. 12. This should not preclude review

because it is clearly wrong. The new evidence was evidence about an

informant’s false statements about the President of the United States and the

President’s family that drew national publicity and led to criminal false

statement charges against the informant. Motions filed in the informant’s case,

which were described in Petitioner’s opening brief, suggested multiple

possible forms of government negligence. In some instances, this was evident

from just the motions’ titles, referring to problems such as “handling agent’s

alleged mistakes” and “alleged defects in the prosecution.” See Dkt.(25-2247)

#6.1, at 30. Petitioner’s opening brief also described a conclusion to the

informant’s case that was exceedingly suspicious. This was a government

concession of error on appeal that was rejected both by the district court in

denying a motion for bail pending appeal and the court of appeals in denying a

motion for summary reversal. See Dkt.(25-2247) #6.1, at 31 (collecting

citations to record in informant’s cases). There was thus a real “smell” around

this informant.

While the court of appeals correctly noted that “[the informant] and

Hackett were allegedly involved in a different securities-fraud scheme,” App.

A005, that ignores what the government – and district courts – recognized

about the other scheme’s relevance. Evidence of the other scheme was relevant

and admissible under both the “inextricably intertwined” theory the

government argued and the alternative Rule 404(b) mens rea theories the

government argued. If the evidence was “inextricably intertwined” and

“necessary to . . . offer a coherent and comprehensible story,” Dist. Ct. Dkt.

#172, at 9 (quoting United States v. Anderson, 741 F.3d 938, 949 (9th Cir.

2013)), for the government’s proof “on offense,” it was “inextricably

intertwined” and necessary to tell the full story for the defense. And just as the

government may introduce evidence of “other acts” under Rule 404(b), a

defendant may introduce what some courts have labeled “reverse 404(b)

evidence.”3 This includes using the “knowledge,” “intent,” and “plan” theories

of Rule 404(b), see Fed. R. Evid. 404(b)(2) (including “intent,” “plan,” and

“knowledge” in list of “[p]ermitted [u]ses”), to show a defendant lacked the

required mens rea.4

E.g., United States v. Montelongo, 420 F.3d 1169, 1175 (10th Cir.

2005); United States v. Lucas, 357 F.3d 599, 605 (6th Cir. 2004); United

States v. Wilson, 307 F.3d 596, 601 (7th Cir. 2002); United States v. Stevens,

935 F.2d 1380, 1402 (3d Cir. 1991).

See, e.g., United States v. Espinoza, 880 F.3d 506, 515 (9th Cir. 2018)

(other acts evidence “may be admissible to prove, inter alia, knowledge,

motive, and opportunity” and, in case at bar, made it more likely neighbor set

up defendant as “blind mule”); United States v. Hayes, 219 Fed. Appx. 114,

116 (3d Cir. 2007) (unpublished) (other acts evidence relied upon “to rebut

allegations of criminality or criminal intent”); Montelongo, 420 F.3d at 1173

(other acts evidence admissible because “tends to make it less probable that

the Defendants knowingly possessed the marijuana or that they knowingly and

voluntarily involved themselves in a drug conspiracy”); United States v.

Cohen, 888 F.2d 770, 776 (11th Cir. 1989) (other acts evidence showed

cooperating witness “had the opportunity and ability to concoct and conduct

the fraudulent scheme without the aid or participation of the Cohens”); United

States v. Aboumoussallem, 726 F.2d 906, 912 (2d Cir. 1984) (other acts

evidence “tends to make the existence of a consequential fact, [the

defendant’s] knowledge, less probable”); United States v. McClure, 546 F.2d

670, 672-73 (5th Cir. 1977) (other acts evidence admissible “to show lack of

criminal intent by a defendant”).

This theory of relevance certainly satisfies the minimal “colorable basis”

standard the court of appeals used. The case therefore remains an excellent

vehicle for resolving the circuit split on the question presented.

The Seventh Circuit Side of the Split Is the Better View.

Finally, the view taken in the Seventh Circuit’s Kitchen case that there

is a right to counsel for a new trial motion when the defendant’s appeal is still

pending is the better view. First, the cases relied on in Williamson, the Fourth

Circuit case rejecting Kitchen, are cases about tolling of the 28 U.S.C. § 2255

statute of limitations, which is a completely different question than the right to

counsel. Second, the reasons Kitchen gives for recognizing a right to counsel –

the adversary nature and “intricate rules” of a Rule 33 motion for new trial

proceeding and the potential of including the new trial issues in the direct

appeal, see supra pp. 21-22 – are highly persuasive.

Finally, drawing the line between motions for new trial filed while the

appeal is pending and motions for new trial filed after the appeal has

concluded is consistent with this Court’s rationale for the line it drew in

Finley. The Court held there was no right to counsel for a motion seeking

postconviction relief in Finley because:

Postconviction relief . . . is not part of the criminal proceeding itself, and

it is in fact considered to be civil in nature. (Citation omitted.) It is a

collateral attack that normally occurs only after the defendant has failed

to secure relief through direct review of his conviction.

Finley, 481 U.S. at 556-57.

This description of postconviction relief contrasts with a motion for new

trial. A motion for new trial is not civil in nature but governed by the rules of

criminal procedure. See Fed. R. Crim. Pro. 33. It also occurs just as frequently,

if not more frequently, before direct review of the conviction is complete – as

it did here, did in Kitchen and Williamson, and did in two of the 2255 tolling

cases. A motion for new trial is therefore very different than the postconviction

proceedings after appeal that the Court considered in Finley.

In sum, the reasons Williamson gave for rejecting Kitchen lack merit.

Kitchen is the better view, and this Court should say so.

VI.

CONCLUSION

The Court should grant the Petition.

Respectfully submitted,

DATED: August 24 , 2026

s/ Carlton F. Gunn

CARLTON F. GUNN

Attorney at Law

APPENDIX 1

Case: 23-595, 05/27/2026, DktEntry: 41.1, Page 1 of 6

FILED

NOT FOR PUBLICATION

MAY 27 2026

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

U.S. COURT OF APPEALS

Nos. 23-595

25-2247

Plaintiff - Appellee,

D.C. No.

3:18-cr-03072-TWR-1

ANDREW HACKETT,

MEMORANDUM*

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of California

Todd W. Robinson, District Judge, Presiding

Argued and Submitted April 22, 2026

Pasadena, California

Before: FRIEDLAND and MILLER, Circuit Judges, and SCARSI, District

Judge.**

A federal jury convicted Defendant Andrew Hackett of conspiracy to

commit securities fraud and securities fraud, and this court upheld his convictions

on appeal. United States v. Hackett, 123 F.4th 1005, 1006 (9th Cir. 2024).

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The Honorable Mark C. Scarsi, United States District Judge for the

Central District of California, sitting by designation.

A001

Case: 23-595, 05/27/2026, DktEntry: 41.1, Page 2 of 6

Defendant now appeals the district court’s order of restitution and order denying

his pro se motions for appointment of counsel and for a new trial. We have

jurisdiction under 28 U.S.C. § 1291. We affirm.

Defendant argues that the district court erred by ordering restitution

more than 90 days after sentencing, by including victims’ losses outside the time

frame alleged in the indictment, and by failing to make explicit findings addressing

his disputes over the restitution calculation. “[W]e review de novo a restitution

order and the district court’s valuation methodology.” United States v. Solakyan,

119 F.4th 575, 594 (9th Cir. 2024), cert. denied, 146 S. Ct. 91 (2025). “[T]he

restitution calculation is reviewed for abuse of discretion, with any underlying

factual findings reviewed for clear error.” Id. (quoting United States v. Gagarin,

950 F.3d 596, 607 (9th Cir. 2020)).

The district court entered its order of restitution more than five months after

sentencing, beyond the 90 days prescribed by the Mandatory Victims Restitution

Act. See 18 U.S.C. § 3664(d)(5). Although Defendant argues he lacked notice of

the court’s intent to order restitution, he “does not claim that any documents or

witnesses had become unavailable after the 90-day period elapsed,” “that his

financial status changed,” or that “the delay caused any prejudice to his defense

whatsoever.” United States v. Moreland, 622 F.3d 1147, 1173 (9th Cir. 2010).

Thus, even if the district court erred in ordering restitution after the 90-day period

23-595; 25-2247

A002

Case: 23-595, 05/27/2026, DktEntry: 41.1, Page 3 of 6

elapsed, Defendant’s challenge fails because he fails to demonstrate how any delay

prejudiced him. See id. (affirming restitution order entered over 90 days after

sentencing where “the district court’s error in failing to comply with the 90-day

time limit was harmless”); United States v. Cienfuegos, 462 F.3d 1160, 1163 (9th

Cir. 2006) (“[B]ecause the procedural requirements of section 3664 were designed

to protect victims, not defendants, the failure to comply with them is harmless error

absent actual prejudice to the defendant.”).

Next, Defendant challenges the inclusion of victims’ losses through April

2018 in the restitution order on the ground that the indictment referred to a

conspiracy that continued “until on or about January 2018.” We reject that

argument. The district court appropriately ordered restitution for losses to victims

harmed in the course of the conspiracy to commit securities fraud, even if the

losses were realized outside the time scope of the charged conduct. 18 U.S.C.

§ 3663A(a)(2); see United States v. Anieze-Smith, 923 F.3d 565, 573 (9th Cir.

2019) (recognizing § 3663A(a)(2) “permits restitution for acts outside the reach of

the indictment,” including conduct beyond its time scope and “outside the statute

of limitations”).

Finally, Defendant’s third challenge concerns the district court’s failure to

make explicit factual findings on several issues. Even if the district court should

have made factual findings to address Defendant’s disputes over the calculation,

23-595; 25-2247

A003

Case: 23-595, 05/27/2026, DktEntry: 41.1, Page 4 of 6

we may affirm the restitution order because “the basis of the district court’s

calculation”—that is, the Government’s restitution briefing—“is clear,” and

Defendant fails to show that the factual underpinnings of the calculation are clearly

erroneous. United States v. Yeung, 672 F.3d 594, 604 (9th Cir. 2012) (citing

United States v. Peterson, 538 F.3d 1064, 1077–78 (9th Cir. 2008)), abrogated on

other grounds by Robers v. United States, 572 U.S. 639 (2014).

Defendant contends that he was entitled to appointment of counsel to

prosecute a new trial motion in the district court while his direct appeal was

pending. “Whether a defendant was denied his Sixth Amendment right to counsel

during a proceeding is a question of law to be reviewed de novo.” United States v.

Hantzis, 625 F.3d 575, 582 (9th Cir. 2010).

For purposes of this disposition, we assume that counsel did not represent

Defendant in the district court when Defendant submitted his pro se motions for

appointment of counsel and for a new trial. We also assume, as Defendant’s

counsel conceded at oral argument, that if a defendant has a Sixth Amendment

right to counsel to develop a new trial motion while the direct appeal is pending,

the right does not extend to every new trial motion the defendant might want to

pursue, such as those with no colorable basis in fact or law.

Here, Defendant’s proposed new trial motion lacked a colorable basis.

Defendant initially moved for appointment of counsel to file a new trial motion

23-595; 25-2247

A004

Case: 23-595, 05/27/2026, DktEntry: 41.1, Page 5 of 6

based on the discovery of unidentified “[n]ew evidence that was not turned

over . . . by the Government.” In the motion for a new trial he ultimately filed,

Defendant asserted that the Government wrongfully withheld the information that

a person named Alexander Smirnov was an FBI informant who had been indicted

for providing false information to the FBI. Smirnov and Hackett were allegedly

involved in a different securities-fraud scheme; evidence related to that scheme

was produced in discovery but not admitted at trial. Defendant’s arguments are

meritless because Smirnov and his interactions with Defendant played no role in

either party’s trial presentation and had little if any relation to the charged conduct.

Evidence tending to show Smirnov was an unreliable informant does not

“undermine confidence in the outcome” of the trial, Strickland v. Washington, 466

U.S. 668, 694 (1984), nor could it “in any reasonable likelihood have affected the

judgment of the jury,” Napue v. Illinois, 360 U.S. 264, 271 (1959).

Accordingly, even accepting Defendant’s contention that there is a right to

counsel when there is a colorable basis for a motion for a new trial while a direct

appeal is pending, Defendant was not entitled to counsel. Similarly, the district

court did not abuse its discretion in denying the motion for appointment of counsel.

United States v. Harrington, 410 F.3d 598, 600 (9th Cir. 2005). Whether its order

is subject to review de novo, United States v. Price, 566 F.3d 900, 907 (9th Cir.

23-595; 25-2247

A005

Case: 23-595, 05/27/2026, DktEntry: 41.1, Page 6 of 6

2009), or for abuse of discretion, United States v. Reyes-Alvarado, 963 F.2d 1184,

1188 (9th Cir. 1992), the district court also did not err in denying a new trial.

All pending motions are denied as moot.

AFFIRMED.

23-595; 25-2247

A006

APPENDIX 2

Case 3:18-cr-03072-TWR Document 469 Filed 11/28/22 PageID.3835 Page 1 of 3

A007

Case 3:18-cr-03072-TWR Document 469 Filed 11/28/22 PageID.3836 Page 2 of 3

A008

Case 3:18-cr-03072-TWR Document 469 Filed 11/28/22 PageID.3837 Page 3 of 3

A009

A010

APPENDIX 3

A011

AP P ENDI X4

Case 3:18-cr-03072-TWR Document 374 Filed 02/21/22 PageID.2820 Page 1 of 19

RANDY S. GROSSMAN

1 United States Attorney

Aaron P. Arnzen (Cal Bar No. 218272)

2 Andrew J. Galvin (Cal Bar No. 261925)

Assistant U.S. Attorneys

3 Federal Office Building

880 Front Street, Room 6293

4 San Diego, CA 92101-8893

Tel.: (619) 546-8384 (Arnzen)/ 619-546-9721 (Galvin)

5 Email: aaron.arnzen@usdoj.gov / andrew.galvin@usdoj.gov

Attorneys for the United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Case No. 18CR3072-TWR

9 UNITED STATES OF AMERICA,

Date: February 9, 2022

Plaintiff,

Time: 2:30 p.m.

UNITED STATES’ SENTENCING

MEMORANDUM

ANDREW HACKETT (1),

Defendant.

The UNITED STATES OF AMERICA, by and through its counsel, Randy S.

17 Grossman, United States Attorney, and Aaron P. Arnzen and Andrew J. Galvin, Assistant

18 U.S. Attorneys, hereby files this Sentencing Memorandum regarding Defendant Andrew

19 Hackett.

INTRODUCTION

Defendant Andrew Hackett conspired to defraud investors in a classic pump-and-

23 dump scheme. He and his conspirators gained control over the free trading shares of ASNT

24 stock, pumped up the price through penny stock newsletters, a phone room that used high

25 pressure sales tactics, and (they hoped) an internet stock promotion website called

26 TheMoneyStreet.com. They also had plans to dump the stock at inflated prices on innocent

27 investors. The scheme was uncovered, and evidence of the scheme was captured, because

28 Michael Forster, who served as the conspirators’ connection with TheMoneyStreet.com,

A012

Case 3:18-cr-03072-TWR Document 374 Filed 02/21/22 PageID.2837 Page 18 of 19

1 Gillespie, Sidhu, and Budhu – pleaded guilty. Gillespie and Sidhu put themselves in

2 position to testify at trial, and Gillespie was called to the witness stand.

To be clear, though, the primary factor leading to a more serious sentence for Hackett

4 is his aggravated role, as discussed above, and his failure to accept responsibility for his

5 crime. This is also borne out in the recommended § 2B1.1 loss calculation in addition to

6 the recommended leader/organizer role. The Government’s recommended loss figure is

7 significantly higher than it was for Hackett’s co-conspirators, because Hackett made near

8 unilateral decisions about promoting ASNT, and exercised total control over selling his

9 overvalued stock to unwitting investors. A telling example is described above: Hackett

10 outright lied to his co-consprirators about the scope and extent of his fraud by telling them

11 that he had nothing to do with the first Nando’s List promotions in September 2017, when

12 the evidence is perfectly clear that he was fully responsible for newsletters.

All that said, the Government seeks a sentence that varies significantly from the

14 Guidelines range, and recommends that the Court reduce Hackett’s sentence to 72 months

15 under § 3553(a) based on the need to avoid unwarranted sentencing disparities.

16 C.

KINDS OF SENTENCES AVAILABLE

Probation - If the recommendation of the United States is accepted, Defendant’s

18 adjusted offense level of 35 falls within Zone D of the Guidelines Sentencing Table; taking

19 into account his Criminal History Category I, the Guidelines range is 168-210 months.

20 Given the serious nature of the offense, the Guidelines do not contemplate a probationary

21 sentence. U.S.S.G. § 5B1.1, comment (n.2).

Restitution - The government seeks restitution from Defendant.

It requests,

23 however, that a restitution hearing be calendared for approximately 45 days after the initial

24 sentencing hearing, given the nuanced analysis necessary to properly calculate victim-by25 victim losses here.

18CR3072-BTM

A013

AP P ENDI X5

Case 3:18-cr-03072-TWR Document 395 Filed 04/05/22 PageID.2941 Page 1 of 24

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

)

Plaintiff,

)

VS.

)

ANDREW HACKETT,

)

Defendant.

)

______________________________)

Case No. 18cr3072-TWR

San Diego, California

Monday,

April 4, 2022

3:22 p.m.

REPORTER'S TRANSCRIPT Of PROCEEDINGS

SENTENCING HEARING

BEFORE THE HONORABLE TODD W. ROBINSON

UNITED STATES DISTRICT JUDGE

For the Government:

RANDY S. GROSSMAN, Acting U.S. Attorney

BY: AARON ARNZEN, Esq.

ANDREW GALVIN, Esq.

Assistant U.S. Attorney

880 Front Street

San Diego, California 92101

For the Defendant:

MARK STEVEN NURIK

Attorney at Law

1551 Manning Street

Suite 320

Los Angeles, California

Reported By:

90024

CAMERON P. KIRCHER

CSR No. 9427, RPR, CRR, RMR

333 W. Broadway, Suite 420

San Diego, California 92101

E-mail: cpkircher@gmail.com

COMPUTER-AIDED TRANSCRIPTION

A014

Case 3:18-cr-03072-TWR Document 395 Filed 04/05/22 PageID.2946 Page 6 of 24

pulled sentencing-related documents for today's hearing.

MR. NURIK:

And I apologize, Your Honor.

I know

these have been done late in the game, but there is a massive

amount of material to review.

soon as possible.

THE COURT:

We tried to get it done as

I just -- my only intent is to make sure

that I have a full understanding of all the issues.

unfortunately, having sat here all afternoon, I don't with

those two.

So we have two options at this point.

And,

We can take a

recess, and I can review those.

filings, they weren't particularly voluminous, and I can put

them into context pretty quickly, I think.

are willing to give me that indulgence, I'd be happy to take

a look at them now.

MR. ARNZEN:

Based on all the other

If the parties

That would be the United States'

preference, Your Honor.

MR. NURIK:

Yes.

Thank you, Your Honor.

THE COURT:

Okay.

Before we do that, I had another

procedural question, and this one came to my attention when I

was reviewing the sentencing documents and the government's

request for a restitution hearing 40 days after today's date.

And not being particularly familiar with restitution

hearings, I went to the statute, 18 United States Code

Section 3664, which sets out the procedure for

COMPUTER-AIDED TRANSCRIPTION

A015

Case 3:18-cr-03072-TWR Document 395 Filed 04/05/22 PageID.2947 Page 7 of 24

restitution-related proceedings, and that seems to involve

probation and notice prior to the presentence report being

prepared.

And my concern in that regard is that restitution is

part of the sentence imposed, and if I impose sentence today,

I lose jurisdiction over the case, don't I?

I know that Judge Moskowitz is doing restitution

hearings, and perhaps Judge Hayes -- I don't know who else

has a piece of this case -- and I've seen on the docket sheet

that they are doing it post the imposition of sentence.

How does that work, and I'm not sure exactly how

that works?

MR. NURIK:

And let me -- just to aid the Court in

that regard.

My client has engaged, and I think it's

referred to in the presentence report, an appellate attorney,

and I believe it's his intention to appeal the conviction in

this matter.

his notice of appeal --

And so if you sentence today, and then he files

THE COURT:

Within 14 days.

MR. NURIK:

-- within 14 days, then you do lose

jurisdiction.

MR. ARNZEN:

There is a specific provision in the

statute, Your Honor, that speaks to exactly this.

It says

that the Court retains jurisdiction for 75 days after the

date on which the original sentencing hearing takes place.

COMPUTER-AIDED TRANSCRIPTION

A016

Case 3:18-cr-03072-TWR Document 395 Filed 04/05/22 PageID.2948 Page 8 of 24

apologize.

and every time I do a brief on this.

I don't have that in front of me.

I cite it each

In addition, the Ninth Circuit has come down with an

opinion that says that that rule, despite its language, is

not even jurisdictional.

up says, I find that restitution is appropriate, but I need

more evidence to determine the amounts of restitution, then

the 75 days can extend even well beyond that.

is going on in the courtrooms of Judge Moskowitz and Judge

Hayes and perhaps another judge, too.

THE COURT:

If the Court before that 75 days is

Okay.

That is what

Mr. Nurik, are you familiar with

that provision and do you agree or disagree?

MR. NURIK:

Your Honor, I've only experienced

restitution matters in cases where there have been pleas, so

I haven't dealt with this problem per se in a trial that

results in an appeal.

representation.

I have no reason to doubt Mr. Arnzen's

My only concern is that if you set a restitution

hearing in the future as suggested, and my client is

incarcerated, which I think undoubtedly you will sentence him

to incarceration, then I lose the opportunity to work with

him, especially if he's outside of this district.

you know, has been very actively involved in the defense of

his case on all matters, so I will need his assistance on the

restitution matter as well.

And he, as

COMPUTER-AIDED TRANSCRIPTION

A017

Case 3:18-cr-03072-TWR Document 395 Filed 04/05/22 PageID.2949 Page 9 of 24

THE COURT:

Okay.

From probation.

MS. SCOTT:

Good morning, Your Honor.

I'm going to direct you to the PSR, Paragraph 39.

There is a typographical error, I have 3663.

18 USC 3664(d)(5), and that allows you to set a restitution

hearing 90 days after sentencing to fully determine the

restitution and square that away.

THE COURT:

It does, indeed.

It is under

Thank you.

I found

the statute, but I didn't read that far into it, so I

appreciate that.

Okay.

So it looks like I can do the restitution as

requested by the government, and we're not going to run afoul

of any loss of jurisdiction.

a few moments to review those additional documents, we'll

take a recess.

So if the parties will give me

MR. NURIK:

As long as the Court needs.

MR. ARNZEN:

Thank you, Your Honor.

THE COURT:

Sure.

MR. ARNZEN:

Your Honor, I apologize.

an addendum to the the PSR that was filed at 1:00 p.m.

THE COURT:

Yes.

MR. ARNZEN:

Thank you.

(Recess, 3:31 p.m. to 3:43 p.m.)

THE COURT:

There is also

I did get that one, too.

I caught

that one.

Okay.

I have had a chance to take a

COMPUTER-AIDED TRANSCRIPTION

A018

AP P ENDI X6

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

)

Plaintiff,

)

VS.

)

ANDREW HACKETT,

)

Defendant.

)

____________________________)

San Diego, California

Thursday,

June 9, 2022

11:05 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Case No. 18-cr-3072-TWR

SENTENCING HEARING

BEFORE THE HONORABLE TODD W. ROBINSON

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Government:

RANDY S. GROSSMAN, U.S. ATTORNEY

BY: AARON ARNZEN,, ESQ.

Assistant U.S. Attorney

880 Front Street

San Diego, California 92101

For the Defendant:

MARC S. NURIK

Attorney at Law

9350 Wilshire Boulevard

Suite 308

Beverly Hills, California

90212

Reported by:

Cameron P. Kircher

CSR NO. 9427, RPR, CRR, RMR

333 W. Broadway, Suite 420

San Diego, California 92101

e-mail: cpkirchercsr@gmail.com

COMPUTER-AIDED TRANSCRIPTION

A019

believe that you have violated a condition or conditions of

your supervised release and that evidence of such violation

will be found in the area or areas to be searched.

under this condition may only be conducted at a reasonable

time, at a reasonable place and in a reasonable manner.

A search

Based on the record that I have before me, I find

that you have an inability to pay a fine, and I will impose

no fine.

You did -- you do stand convicted of two felony

counts.

For each one of those counts, I will impose a $100

penalty assessment as required by statute.

With regard to both the time in custody and the

supervised release term, I impose that as to each count of

conviction and I order that they be run concurrent with one

another.

With respect to restitution, what is the

government's request in terms of the timing of the

restitution hearing?

MR. ARNZEN:

I think 45 days out, or approximately, would be

Thank you, Your Honor.

great.

We can go ahead and gather up the victim impact

statements that we've received so far.

The office will

receive those until the day I retire.

But it gives us a

chance to accumulate at least as many as we can get.

accumulate those, present the restitution analysis to the

defense, hopefully work something out.

We'll

If we can't, we'll

COMPUTER-AIDED TRANSCRIPTION

A020

come to you to settle it.

THE COURT:

Mr. Nurik?

MR. NURIK:

That's fine, Your Honor.

THE COURT:

Okay.

Ms. Ortiz, may we have a date

approximately --

THE CLERK:

Eight weeks out?

THE COURT:

Sure.

THE CLERK:

That will be August 12th at 2:30 p.m.

THE COURT:

Does that date and time work for you,

Mr. Arnzen?

MR. ARNZEN:

I think it does.

THE COURT:

Mr. Nurik?

MR. NURIK:

Your Honor, I may have a conflict, but I

Honor.

don't know yet.

and we can pick a different date?

If it does come up, can I advise the Court

THE COURT:

Thank you, Your

If the parties can come to a joint

agreement and clear that with Ms. Ortiz.

MR. NURIK:

Thank you.

THE COURT:

Yes.

Mr. Nurik, with respect to the

sentence imposed, is there anything else that I need to

address?

MR. NURIK:

I would request that the defendant -- the Court make

Yes, Your Honor.

a recommendation on the judgment that the defendant be

COMPUTER-AIDED TRANSCRIPTION

A021

AP P ENDI X7

Case 3:18-cr-03072-TWR Document 413 Filed 06/10/22 PageID.3106 Page 1 of 5

A022

Case 3:18-cr-03072-TWR Document 413 Filed 06/10/22 PageID.3107 Page 2 of 5

A023

Case 3:18-cr-03072-TWR Document 413 Filed 06/10/22 PageID.3108 Page 3 of 5

A024

Case 3:18-cr-03072-TWR Document 413 Filed 06/10/22 PageID.3109 Page 4 of 5

A025

Case 3:18-cr-03072-TWR Document 413 Filed 06/10/22 PageID.3110 Page 5 of 5

A026

AP P ENDI X8

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

)

Plaintiff,

)

VS.

)

ANDREW HACKETT,

)

Defendant.

)

____________________________)

San Diego, California

Friday,

November 18, 2022

2:35 p.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Case No. 18-cr-3072-TWR

RESTITUTION HEARING

BEFORE THE HONORABLE TODD W. ROBINSON

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Government:

RANDY S. GROSSMAN, U.S. ATTORNEY

BY: AARON ARNZEN,, ESQ.

Assistant U.S. Attorney

880 Front Street

San Diego, California 92101

For the Defendant:

MARC S. NURIK

Attorney at Law

9350 Wilshire Boulevard

Suite 308

Beverly Hills, California

90212

Reported by:

Cameron P. Kircher

CSR NO. 9427, RPR, CRR, RMR

333 W. Broadway, Suite 420

San Diego, California 92101

e-mail: cpkirchercsr@gmail.com

COMPUTER-AIDED TRANSCRIPTION

A027

San Diego, California - Friday, November 18, 2022

2:35 p.m.

THE CLERK:

U.S.A. vs. Andrew Hackett for restitution hearing.

Counsel on the phone, please state your appearance

first.

MR. NURIK:

Calling Matter 24, 18-cr-3072,

Good afternoon.

This is Marc Nurik on

behalf of the defendant, whose appearance has been waived.

THE COURT:

Good afternoon.

MR. ARNZEN:

And good afternoon, Your Honor.

Aaron

Arnzen for the United States on this matter.

THE COURT:

Okay.

Good afternoon.

It's my understanding that the parties were

unable to come to a mutual agreement as to the restitution in

this matter.

MR. ARNZEN:

That is correct, Your Honor.

THE COURT:

Mr. Arnzen, do you wish to go first, or,

Mr. Nurik, do you wish to go first?

MR. ARNZEN:

Your Honor, I'm fine to hear Mr. Nurik

out.

I think we've set forth our logic and argument in the

papers that we've filed.

on file.

defendant's position here.

THE COURT:

Okay.

MR. NURIK:

Well, Your Honor, obviously the

We do not have an opposition brief

I don't have the benefit of understanding

Mr. Nurik.

COMPUTER-AIDED TRANSCRIPTION

A028

government does have the burden of proof in this case by a

preponderance of the evidence, but nevertheless, they do have

the burden.

conceding any burden on our part.

But by me going forward now, I'm in no way

Our problem is with the government's calculation of

the restitution.

And it starts off with the government

picking an ending date for determining their calculation,

which is beyond the date of the conspiracy alleged in the

indictment and, arguably, proven at trial.

The government, according to its -- what I'll call

summary witness -- Peter Melley, uses a date of April of '18,

April 2nd of 2018, rather than the date of the conspiracy

alleged in Count 1 of the indictment, which is January of

2018.

actually extended beyond that date.

There was no evidence at trial that the conspiracy

What the government appears to be relying upon is

the fact that an individual by the name of Bob Farrill, who

was a friend of the defendant, the government alleges sold

some shares up until April of 2018.

there was no evidence at trial that Bob Farrill was, in fact,

as the government terms it in its moving papers, a nominee of

the defendant.

Farrill was part of the conspiracy.

to be a co-conspirator.

The problem is that

There was no evidence at trial that Bob

He wasn't even alleged

There was no evidence at trial that Bob Farrell's

COMPUTER-AIDED TRANSCRIPTION

A029

sales, in any way the money from those sales went to the

defendant or to the benefit of the defendant.

no evidence at trial that Bob Farrill sold any of his shares

in a match trade to any of the victims or so-called alleged

victims in this particular matter.

And there was

And, of course, there is no evidence presented of

either of these issues in the actual moving papers by the

government.

from a Kara Kennedy, who was a transfer agent, if the Court

recalls, and Your Honor did have the benefit of being the

trial judge on this matter.

In fact, what there was at trial was testimony

Kara Kennedy testified that Mr. Farrill had his

shares on deposit at Wilson Davis and interacted with two

different brokerage houses.

not at trial or even in the government's moving papers, that

any of those shares from any of those particular brokerage

houses were sold to any of the victims in this matter; nor is

there any evidence at trial or in any of the moving papers of

what the government loosely refers to in their moving papers

as manipulative trading by Mr. Farrill or even by the

defendant.

shares to any of these individuals.

No evidence has been presented,

No evidence that the defendant sold any of the

The problem is that Mr. Melley in his analysis does

not give us any of the dates of the purchase or sale of these

individual victims.

If you note in the exhibits, which is

COMPUTER-AIDED TRANSCRIPTION

A030

the declaration of Peter Melley, which is Exhibit 1 to

Document 437 in the docket, which is the government's motion.

In his attached chart, which is entitled Victim Impact

Statement Analysis, there is no indication of the dates.

So the problem is we have no way of determining

whether or not his analysis, which renders a figure of

$67,000 and change, includes sales or purchases even that

were beyond the date of the indictment or beyond any

reasonable date that the Court could infer should be part of

a restitution analysis.

So I would submit that the government has failed to

sustain their burden by a preponderance of evidence of

proving that that amount is a legitimate amount.

I also want to note that there was no evidence in

any of the analysis by Mr. Melley that the purchases were as

a result of this particular scheme as alleged and as the jury

found the defendant guilty of.

as the Court recalls, the defendant was found guilty of a

conspiracy to commit this scheme.

that he was found guilty of related to misrepresentations in

a Section 144 form.

And I want to point out that,

The substantive counts

This was not a completed conspiracy.

If the Court

recalls, part of our defense or a big feature of our defense

was arguably that there was no meeting of the minds.

certainly as the Court recalls, at some point in 2017,

And

COMPUTER-AIDED TRANSCRIPTION

A031

Mr. Hackett ceased participating with any of the others.

There is no evidence that any of the so-called

victims purchased their shares during the pump portion or the

dump portion, because we have no indication when they

purchased, and their victim impact statements do not

identify -- do not all identify when they purchased.

I've reviewed them.

And

Also as the Court recalls, there were periods in

which the price went down significantly of the stock and

people purchased -- may have purchased during that period.

So at this point, we have no analysis when their purchase

date was.

And, finally, Your Honor, some of these victims were

likely victims of a separate scheme.

during the trial, during the cross-examination, my

cross-examination of Mr. Wolfson, I believe that I proved

beyond a reasonable doubt that some of Mr. Wolfson's own

salespeople were conducting their own separate fraud, fraud

on the defendant and fraud on the victims, by selling their

own shares that they purchased under fictitious names to some

of these people.

If the Court recalls,

We have no indication from the records whether or

not Mr. Melley did any analysis of that.

Certainly, we would

submit that those particular victims, as they are called,

their purchases should not be included, to the extent that

COMPUTER-AIDED TRANSCRIPTION

A032

they were the subject of these phoney purchases by members of

Mr. Wolfson's squad.

So ultimately, Your Honor, I would submit that the

government has at this point failed to prove by a

preponderance of the evidence that this Court should order

restitution in the amount stated in their motion.

THE COURT:

Okay.

Thank you very much, Mr. Nurik.

Mr. Arnzen.

MR. ARNZEN:

I believe that Mr. Nurik is in error in his argument

Thank you so much, Your Honor.

with respect to a couple of things.

in order.

And I'll just take them

We do propose an end date for purposes of

calculating restitution; that is, in April of 2000 -- I'm

sorry.

2018.

I think it's '17, but I just want to make sure.

At trial, we proved that Bob Farrill, Robert

Farrill, sold shares all the way until April 2018.

We did

that through stock transaction records.

evidence -- it's not zero evidence -- it's evidence through

testimony of Mr. Gillespie, when he was on the stand, and

when he was dealing with Mr. Farrill and transferring shares

to Mr. Farrill, he believed -- Mr. Gillespie believed, the

CEO of the company believed, that he was doing so on

behalf -- that Farrill was doing so on behalf of Mr. Hackett.

We also presented

COMPUTER-AIDED TRANSCRIPTION

A033

That's consistent with the tape recordings that we

heard that Mr. -- that we played through Mr. Forster on the

stand, and it's also consistent with the documentation that

proves that at some points Mr. Farrill was in place on stock

purchase agreements from Ms. Budhu, another co-conspirator.

Mr. Farrill was at times a counterparty.

switched out to Mr. Hackett and/or vice versa.

And then it was

And so there is substantial evidence in the record.

We argue that -- in closing, we argued at sentencing that

those sales by Mr. Farrill were on behalf of Mr. Hackett.

Mr. Hackett used Mr. Farrill as a nominee.

that position.

And we stick to

We need not prove that the transactions at issue

here, for purposes of these victims, were through

manipulative trades, insider trades, part of the pump, part

of the dump.

during a fraudulent period; in other words, they purchased

ASNT stock when ASNT stock was artificially high in price and

volume, and it was artificially high because of the scheme

carried out by the conspirators here.

We only need to prove that they purchased

Secondly, I don't think it really matters for the

analysis, but just for the record, Mr. Hackett was convicted

on the conspiracy count and the substantive count.

substantive count was the entire scheme.

misrepresentations in the stock deposit process that Ms. Kara

The

It was not just

COMPUTER-AIDED TRANSCRIPTION

A034

Kennedy testified to.

The substantive count was under

10(b)(5) of the Exchange Act.

soup to nuts.

record, Your Honor.

It was the entire scheme from

So I just wanted to correct that on the

The victims here -- thirdly, the victims here that

we've put forth in Exhibit 1 -- or Exhibit A to the motion,

all of these victims purchased stock during that fraudulent

period.

flow into the fraudulent period and have the value of their

stock impacted.

They weren't holders of stock that just happened to

As the declaration sets out and our motion sets out,

the stock transaction records obtained by FINRA, the expert

there, indicate that each and every one of those victims

purchased during that period.

Mr. Nurik says we don't know when they purchased; we do.

know they all purchased during the point in time when the

stock was artificially inflated.

So these specific names that

And lastly, Mr. Nurik has been making much of the

testimony and his cross-examination of Mr. Wolfson.

It might

be the case that Mr. Wolfson sold some stock through his call

center, through his boiler room to his own customers.

at closing, I've said throughout the trial and ever since, I

don't understand how that's quite relevant to anything.

he thinks that some of these victims are Wolfson customers, I

think those victims are still -- those customers are still

I said

COMPUTER-AIDED TRANSCRIPTION

A035

victims of the scheme.

If it mattered at all, Mr. Nurik could have

certainly brought some evidence to prove that point beyond

mere speculation.

support the numbers on our exhibit for months, and I have

seen or heard nothing from him about any of these customers,

any specific customers -- I'm sorry.

being customers of Mr. Wolfson that were engaged in an extra

level of fraud.

He's had victim impact statements that

Any specific victims

I think we have carried our burden.

If the Court is

inclined to order restitution, I would propose to the Court

that we would be allowed to submit a proposed order that sets

forth the proper amount of restitution consistent with the

exhibit.

give Mr. Hackett the benefit of making his judgment joint and

several with two other defendants who we expect to move for

restitution in short order.

and Sidhu.

payments that he makes to the SEC in a parallel SEC case in

which disgorgement or civil monetary judgments are imposed.

So with those in mind, Your Honor, I would submit,

We create a payment schedule for Mr. Hackett.

Those are Defendants Gillespie

And that Mr. Hackett also get credit for any

unless the Court has any questions.

THE COURT:

Okay.

Mr. Nurik, any last words?

MR. NURIK:

Yes, Your Honor.

Crediting everything that the government says, even

COMPUTER-AIDED TRANSCRIPTION

A036

though I don't agree, obviously, there is one point that they

rely upon that I think is illustrative of what I'm trying to

point out to the Court.

They reference the fact that regardless of who sold

and regardless of whether or not the period is extended

beyond the indictment, they say that there is evidence that

these particular victims purchased the stock during the

period that it was artificially high, artificially high as a

result of the pump portion of the scheme.

The problem is, although Mr. Arnzen says they

believe that to be the case, or even he knows that to be the

case, there is no evidence of that before the Court.

is no evidence of that before the Court during the trial,

because, if you recall, there was only one victim who even

testified, and she testified via video.

victims were produced during trial.

There

None of the other

And there is no reference whatsoever in Mr. Melley's

summary report or in anything else that the government has

presented as part of this restitution argument to show when

these particular people purchased their stock and whether or

not it was during a period that was artificially high or not.

Because as the Court may recall, during the trial, there was

evidence that the stock dropped significantly, and it jumped

and then it came down.

We don't know when these people purchased.

There is

COMPUTER-AIDED TRANSCRIPTION

A037

no indication in Mr. Melley's report.

So for all we know,

they may have purchased during a low period, and certainly

not a victim of any of the actions of the defendants; in this

case, Mr. Hackett.

So at this point, unfortunately, though the

government may believe that to be the case, they do have the

burden of proof, they have to prove by a preponderance of the

evidence, and they have failed to do so for the purposes of

stating the $67,000 that they are requesting.

THE COURT:

Okay.

Mr. Arnzen, can you point me to

where in the record the victim purchases were made?

MR. ARNZEN:

The record indicates when the purchases

were made through the blue sheet data.

There was much

discussion in litigation, throughout trial and at sentencing

concerning the blue sheet data.

I'm not sure it was actually introduced as an

exhibit; however, it was relied upon by experts.

used it to cross-examine I think -- I'm almost sure he used

it to cross-examine Mr. Wolfson when on the stand.

where the data comes from.

defendants since well before trial.

THE COURT:

Okay.

That's

It's been fully available to the

Mr. Arnzen, I will take you up on

your offer to submit a proposed order.

it.

Mr. Nurik

I will take a look at

I'll take this matter under submission.

Mr. Nurik, any additional submissions, if you choose

COMPUTER-AIDED TRANSCRIPTION

A038

to make them, I would ask that you submit those within the

next two weeks.

expect an order to follow after that two-week time period has

elapsed.

And you can expect -- both parties can

MR. NURIK:

Okay.

Your Honor, may I point out, if

the Court is inclined to grant restitution, I understand that

the two co-defendants -- not co-defendants -- yes, two

co-defendants, Mr. Gillespie and Mr. Sidhu, are scheduled for

their restitution hearing on the 28th.

Is that right, Mr. Arnzen?

MR. ARNZEN:

Sounds like it might be right.

THE COURT:

It's not before me, so I don't know,

Mr. Nurik.

I believe --

MR. NURIK:

That's right.

THE COURT:

I believe Judge Moskowitz retained --

MR. ARNZEN:

I think you're right, Your Honor.

MR. NURIK:

That's correct.

And I'm only concerned

about what I would submit might be inconsistent results.

And so I would ask before the Court rules on this

matter, one way or the other, that the Court be mindful of

Judge Moskowitz's order.

if the government uses a different methodology when they have

argued the same thing in their motions with respect to

Mr. Gillespie and Mr. Sidhu.

THE COURT:

It would seemingly be inconsistent

Okay.

I think that's a fair point.

COMPUTER-AIDED TRANSCRIPTION

A039

Mr. Arnzen.

MR. ARNZEN:

I'm unconcerned with it.

I do, too, Your Honor.

Our submission will be

based on exactly the same methodology.

in there in another case for another defendant before Judge

Moskowitz on a fraud case.

methodology was used, Judge Moskowitz adopted it, and we got

an order immediately thereafter based on exactly this

methodology.

THE COURT:

Okay.

And, indeed, we were

The exact same analysis and

So within the next two weeks, if

the government -- I'm assuming paperwork has been submitted

to Judge Moskowitz or will be submitted to Judge Moskowitz.

To the extent that any analysis of the victims' loss differs,

the methodology differs from that utilized in this court, the

government is ordered to provide me with the difference in

the analysis, if there is any difference in the analysis,

within that two-week time period.

MR. ARNZEN:

Yes, sir.

THE COURT:

Okay.

very much.

Mr. Nurik, thank you

Mr. Arnzen, thank you very much.

If there is nothing else, we'll be in recess on this

All right.

matter.

MR. ARNZEN:

Thank you, Your Honor.

MR. NURIK:

Thank you, Your Honor.

Thank you for

allowing me to appear by phone.

COMPUTER-AIDED TRANSCRIPTION

A040

THE COURT:

You're welcome.

L.A. traffic is on a Friday.

MR. NURIK:

(Proceedings concluded at 2:52 p.m.)

You're right.

I know how pleasant

Thank you.

--O0O--

C E R T I F I C A T I O N

I hereby certify that I am a duly appointed,

qualified and acting official court reporter for the United

States District Court; that the foregoing is a true and

correct transcript of the proceedings had in the

aforementioned cause; that said transcript is a true and

correct transcription of my stenographic notes; and that the

format used herein complies with the rules and requirements

of the United States Judicial Conference.

DATED: July 10, 2023, at San Diego, California.

S/CAMERON P. KIRCHER

CAMERON P. KIRCHER

COMPUTER-AIDED TRANSCRIPTION

A041

AP P ENDI X9

Case 3:18-cr-03072-TWR Document 470 Filed 12/02/22 PageID.3840 Page 1 of 7

LAW OFFICE OF MARC S. NURIK

Marc S. Nurik (SBN#297951)

9350 Wilshire Blvd., Suite 308

Beverly Hills, CA 90212

Telephone: 310-909-6828

Email: marc@nuriklaw.com

Attorney for Defendant,

ANDREW HACKETT.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Case No.: 18CR3072-TWR

Plaintiff,

vs.

ANDREW HACKETT (1)

DEFENDANT’S MOTION TO VACATE

COURT’S RESTITUTION ORDER AND

RESPONSE TO GOVERNMENT’S

MOTION FOR RESTITUTION

Defendant.

REQUEST TO VACATE RESTITUTION ORDER

On November 18, a restitution hearing was held in this matter, At the conclusion,

the Court stated that it would defer ruling and gave defense counsel 2 weeks to file any

supplemental brief on the matter. As such, defendant’s supplemental brief is due, Friday

December 2, 2022. However, this Court entered its restitution Order before defendant’s

-1-

A042

Case 3:18-cr-03072-TWR Document 470 Filed 12/02/22 PageID.3841 Page 2 of 7

supplemental brief was due. Defendant now requests that this court vacate its order as

untimely and review Defendant’s supplemental brief which is presented below. The

Government has advised that it does not oppose this request.

II.

THE GOVERNMENT HAS FAILED TO PROVE THAT THE “VICTIM’S”

TRADES ALL OCCURRED WITHIN THE RELEVANT TIME PERIOD

The main thrust of defendant’s opposition to the Government’s Motion was that the

Government through its summary witness analysis of the “victim” trades failed to

identify the dates of purchase and sales of HVST stock. Defendant submits that the

Government did not prove a conspiracy beyond the dates alleged in the indictment. As

there is no way to tell from the Government’s presentation of the “victims” trades as to

the dates they occurred there is no way to determine which “victims” losses would

properly fall within the time period from September 2017 to January 2018, as alleged in

the indictment

The witness’s declaration merely states that these trades all occurred between

September 2017 and April 2018. However The indictment in this matter alleged a

conspiracy beginning on September 2017 and ending on or about January 2018 The

analysis conducted by the Government’s summary witness, Peter Melley, of the trades of

the “victims in HVST stock includes a period beyond the ending date of the conspiracy

-2-

A043

Case 3:18-cr-03072-TWR Document 470 Filed 12/02/22 PageID.3842 Page 3 of 7

until April 2018. The Government’s sole justification for this extended time is the

unsupported allegation that Robert Farrill was a nominee of Defendant Hackett and

conducted trades of HVST stock until April 2018. This argument fails for several

reasons.

First, there was no credible evidence at trial supporting the claim that Farrill was a

co-conspirator or a nominee of Hackett’s. The Government seems to rest its claim on the

un corroborated hearsay statements of a witness. Saying that Farrill was working with

Hackett. Notably, Farrill wasn’t charged or even listed as an unindicted co-conspirator,

nor was he included in the SEC’s complaint, nor the subject of any forfeiture

proceeding. At the previous restitution hearing on November 19th, 2022, the

Government argued that they presented evidence through the testimony of Kevin

Gillespie, “when he was on the stand that he was dealing with Mr. Farrill, [and] that he

believed he was doing so…that Farrill was doing so on behalf of Mr. Hackett.” The

Defendant submits that the Government erroneously characterizes what was on the

record at trial. During the testimony of Gillespie, the following was said:

Q. Let's break down each one.

So with the marketing, what money are you talking

about that they wanted you to use for marketing?

A. The capital that he invested in the company.

Q. And this is whose capital?

-3-

A044

Case 3:18-cr-03072-TWR Document 470 Filed 12/02/22 PageID.3843 Page 4 of 7

A. Andrew Hackett.

Q. And, again, even though he was not on that note, you're

saying this was Mr. Hackett's capital?

A. I believed it to be, yeah.

MR. NURIK: Objection as to speculation.

THE COURT: Sustained. The answer is stricken.

See Jury Trial Day 2 Transcript pg. 147-148. The Government relies on a statement

made by Gillespie that was stricken from the record at trial due to it being pure

speculation. Speculation is exactly what the Government is using to argue that Robert

Farrill’s transactions are for the benefit of the Defendant.

Second, obtained from the SEC HVST/ASNT Blue Sheet Data (introduced in

evidence at trial) and isolated on the chart marked EXHIBIT L, trades from the Toronto,

Canada firm “Mackie Research” are the trades of Robert Farrill during the scope of the

indictment. These trades begin on 9/11/17 and continue until the end of January 2018.

These shares are not from the 750,000 shares that Farrill obtained through the

Convertible Promissory Note entered into evidence at trial. See Government Trial

EXHIBIT 219. As testified by government witness Kara Kennedy, Farrill did not deposit

the 750,000 shares until March 9th, 2018. See Government Trial EXHIBIT 224. The

trades by Farrill out of the Mackie Research account include both purchases and sales in

the open market. No evidence was presented at trial showing that these trades were

-4-

A045

Case 3:18-cr-03072-TWR Document 470 Filed 12/02/22 PageID.3844 Page 5 of 7

for the benefit of the defendant. Moreover, Farrill invested $300,000 into the First

Harvest company as consideration for the 750,000 shares issued through the Convertible

Promissory Note. See Jury Trial Transcript Day 2, pg. 146. However, the sales of Farrill

shown on the “ASNT Blue Sheet Data” total $62,516.21, a substantial -$237,483.79

loss. See EXHIBIT L.

The Government also argues that the purchases of the victims were made while the

market price was artificially inflated. Robert Farrill deposited the 750,000 shares in

question on March 9, 2018. At this point in time, the market was significantly deflated,

despite the government’s argument, falling from the $4.00-$5.00 range to $1.00 and

under. See EXHIBIT L. This is due to two factors outside of the defendant’s control.

First, the manipulative trading scheme of Lee and Page ending in January of 2018.

Second, the Auctus Fund LLC., or as referenced during trial, one of the “toxic debt

holders” began selling their large position into the open market beginning on February

23, 2018 and continuing until the end of the HVST/ASNT Blue Sheet Data provided in

discovery. As the Auctus Fund began selling their large position, the stock price fell

under $1.00 and continued to do so each day of their selling. The victims sold into this

extremely deflated market, which does not subject them to the scheme in question.

///

-5-

A046

Case 3:18-cr-03072-TWR Document 470 Filed 12/02/22 PageID.3845 Page 6 of 7

III.

THE GOVERNMENT HAS FAILED TO PROVE THAT ALL OF THE

“VICTIMS’” LOSSES WERE THE RESULT OF DEFENDANT’S CRIMINAL

ACTS

Beginning in October 2017- January 2018, as proven during trial by defense, the

sales representatives from David Wolfson’s call-room were engaging in manipulative

trading unbeknownst to the defendant. See defense trial EXHIBITS A and C. The sales

representatives Christopher Lee and Renardo Page purchased the HVST/ASNT stock in

multiple smaller buy orders and sold on the same day (churning the stock), even taking

losses. See EXHIBIT L. These individuals participated in this manipulation to not only

create artificial volume on the stock, but to also bill the defendant for sales being created

using fictitious investor names. A total of 16 victims from the government’s victim list

purchased the stock during this period. Moreover, the government argues that the

victims purchased the stock while the market was artificially inflated by the defendant;

However, the defendant submits that during this period the market was artificially

inflated by Lee and Page through their manipulative trading scheme without his

knowledge, nor the knowledge of David Wolfson, as proven during trial. See Jury Trial

Transcript Day 3, pg. 386-387. During the cross-examination of David Wolfson, he had

testified that he himself was unaware of the manipulative trading of Lee and Page. The

government has failed to prove that the defendant sold any of his shares directly to any

-6-

A047

Case 3:18-cr-03072-TWR Document 470 Filed 12/02/22 PageID.3846 Page 7 of 7

of the victims. Moreover, there are specific instances where victims’ buy orders match

with the sale orders of Page and Lee (ex. John Wilde’s trades 10/26/17; Chris Filipek’s

trades 1/25/18). The defendant should not be responsible for restitution for the trades of

the victims during the manipulative trading scheme of Lee and Page. The market to

which the victims purchased the stock was artificially inflated at the hands of Lee and

Page, and the market to which the victims sold was significantly deflated due to the sales

of Auctus Fund LLC. Therefore, the defendant should not be responsible for restitution

based on the undisputable trading information, and testimony at trial from the

government’s witnesses

IV.

CONCLUSION

The Government has not met its burden in calculating the losses of the victims,

nor in attributing such losses to the defendant.

Dated this 2nd day of December 2022.

Respectfully Submitted:

LAW OFFICE OF MARC S. NURIK

/S/ Marc S. Nurik__________

Marc S. Nurik (SBN#297951)

9350 Wilshire Blvd., Suite 308

Beverly Hills, CA 90212

Telephone: 310-909-6828

Email: marc@nuriklaw.com

Attorney for Defendant,

ANDREW HACKETT

-7-

A048

A P P E N D I X 10

Case 3:18-cr-03072-TWR Document 492 Filed 03/26/24 PageID.3982 Page 1 of 3

1 Name:

ANDREWHACKETT

Address:

Telephone Phone:

Email:

P.O. Box 121261, San Diego, CA 92112

FILED

(619)-606-8028

andrewyge@gmail.com

[ MAR 2 6 2024 ]

CLERK. U.S. DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

DEPUTY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

18-cr.-3072

Case No.: - - - - -- -

UNITED STATES OF AMERICA

REQUEST FOR

APPOINTMENT OF COUNSEL

Plaintiff(s),

ANDREW HACKETT

Defendant(s).

I, _ _A_N_D_RE_W_HA_c_KE_T_T_ _ _ _ _, move for the appointment of counsel. To support

this motion, I declare under penalty of perjury that (check one):

I have been granted, or have applied for, permission to proceed informa

pauperis.

I have attached an affidavit demonstrating my inability to pay the cost of an

attorney.

I have made the following diligent efforts to obtain legal counsel but have been

unsuccessful because ofmy poverty (describe below, include information for each

attorney you contacted):

A049

Case 3:18-cr-03072-TWR Document 492 Filed 03/26/24 PageID.3983 Page 2 of 3

1 Attorney: FEDERAL DEFENDERS

2 When: 0J12s12024

3 Where: SAN DIEGO

4 How (by telephone, in person, etc.):

TELEPHONE

7 Why attorney was not employed to handle your claim:

Office represented one of my co-defendants in the same matter and advised that the office is unable to represent

myself. Office advised me to seek appointment of counsel from the Court.

Attorney:

When:

MARC NURIK

112112022

12 Where:

SAN DIEGO

How (by telephone, in person, etc.):

Telephone/email correspondence through my spouse while I was incarcerated.

16 Why attorney was not employed to handle your claim:

Attorney represented myself during my criminal trial, and filed a notice of appeal, and subsequent notice of

withdraw and to appoint new counsel. Attorney is unable to represent me without compensation.

19 Attorney:

20 When:

Where:

22 How (by telephone, in person, etc.):

Why attorney was not employed to handle your claim:

A050

Case 3:18-cr-03072-TWR Document 492 Filed 03/26/24 PageID.3984 Page 3 of 3

1 I need appointed counsel to assist me because (describe below):

ew evidence that was not turned over to myself by the Government in this case has been

iscovered over the weekend. I need an attorney to advise of my rights in light of these recent

events. Moreover, I require an attorney to assess any next steps that must be taken to

preserve my rights in this criminal proceeding. In light of this evidence not being turned over

o me, I am seeking an attorney to file a motion for new trial with this Court.

am currently unrepresented in this criminal proceeding. I am unable to pay for the previous

ounsel that I had during my original trial, nor able to pay for any new representation. I have

ontacted the Federal Defenders Office of San Diego that advised me that they are unable to

represent me in this matter due to a conflict by their representation of one of my coefendants, and they advised me to petition the Court for the appointment of counsel.

03/25/2024

Date

Signature

ANDREW HACKETT

Printed Name

A051

A P P E N D I X 11

·---._,_

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.3993 Page 1 of 14

UNITED STATES DISTRICT COU

UNITED STATES OF AMERICA

Plaintiff,

vs.

8 ANDREWHACKETT

Defendant.

) Case No.: 3-18-cr-03072-TWR-1

)

DEFENDANT'S MOTION FOR

) NEW TRIAL BASED ON NEWLY

) DISCOVERED EVIDENCE AND

) PROSECUTORIAL MISCONDUCT

)

The defendant, Andrew Hackett, hereby submits this Motion for New Trial on the

basis of newly discovered evidence and prosecutorial misconduct.

INTRODUCTION

In or around late February and early March of 2024, articles pertaining to a

19 newly revealed to be "rogue" Federal Bureau of Investigations ("FBI") Confidential

Human Source ("CHS") accused of entrapping the current President of the United

States were published by the Washington Post 1, Associated Press2, The Guardian3 ,

and other news outlets. These articles have identified the CHS in question to be

Alexander Smirnov. Based on select relevant discovery turned over to the Defendant,

24 the Defendant was able to recently make the connection that the alleged rogue FBI

CHS Smimov, discussed in the articles, may have been an individual by the name

htt_ps://www.wasbingtonpost.com/politics/2024/03/09/alexander-smirnov-fbi-biden-impeachment/

htt_ps://apnews.com/article/hunter-biden-fbi-informant-smimov-ukraine-impeachment113cll04052dbdc9302606f6d42c9939

htt_ps://www.theguardian.com/us-news/2024/mar/14/company-paying-fbi-informant-trump--connections

-IDEFENDANT' S MOTION FOR NEW TRIAL

A052

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.3994 Page 2 of 14

1 "Alex (Last Name Unknown)" as identified in the discovery turned over to the

defendant regarding a "similar act deal" known as "WRIT," which the Government

3 exhaustively argued was "intrinsic evidence of the crimes for which Defendants are

4 charged'' in the present matter before the Court. (Dkt. 172, p.8:21-27).

The Alex identified in the defendant's discovery was recently confirmed to be

CHS Smirnov by the Securities and Exchange Commission ("SEC") in their parallel

7 civil case against the Defendant:

" .. .the SEC already confirmed during the May 14 [2024] hearing its

understanding based on information provided by the United States Attorney's

Office that Smirnov was the "Alex" on a recorded call provided to Hackett

during criminal discovery; thus this issue is not in dispute," (3: 18-cv-01530,

Dkt. 213, p. 7:16-19).

Mr. Smirnov's contacts with the defendant would have produced either recordings

14 of their conversations, or reports and notes summarizing the conversations, trading

15 reports pertaining to WRIT, trading reports authorizing CHS Smirnov to purchase or

16 sell WRIT, all FBI reports pertaining to CHS Smirnov and brokerage reports and

17 conversations with CHS Smirnov's broker/associate Denis, which were not produced

18 to the defendant in discovery prior to trial.

In light of this revelation, Defendant, through his appellate counsel sought the

relevant CHS Smirnov discovery from the United States Attorney's Office. However,

in response to Defendant's appellate attorney's request for discovery, Assistant

United States Attorney ("AUSA") Janaki Chopra declined to produce further

discovery, despite the SEC confirming that the US Attorney's Office is aware of CHS

Smirnov' s identity and his relationship to this matter before the Court.

Defendant would be entitled to recordings, reports, or notes even now if they are

potentially exculpatory, and he would have been entitled to recordings, including the

aforementioned evidence obtained by CHS Smirnov, that were simply "relevant" at

28 the time of trial, under Rule 16(a)(l)(B)(i) of the Federal Rules of Criminal Procedure.

-2DEFENDANT'S MOTION FOR NEW 1RIAL

A053

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.3995 Page 3 of 14

1 Disclosure would also be consistent with what the Supreme Court has described as

2 the prosecution's broader duty "to set the record straight," Banks v. Dretke, 540 U.S.

3 668, 676 (2004).

RELEVANT BACKGROUND

On August 15, 2021, Defendant filed his Motion for New Trial pursuant to

7 Rule 33 of the Federal Rules of Criminal Procedure. (Dkt. 315) On March 28th, 2022,

8 Defendant filed his Supplemental Motion for New Trial ("Supplemental Motion")

9 (Dkt. 388) with additional newly discovered grounds, that the Government failed to

1O disclose to the defense the existence of certain relevant evidence, in violation of the

ruling in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. The Supplemental

12 Motion primarily argues that the Government failed to produce to the Defendant

several recorded conversations and messages material to the matter before the Court,

14 and in violation of Defendant's right to a fair trial and Due Process of Law.

On April 18, 2022, the Government filed a Supplemental Brief in Opposition to

16 the Defendant's Supplemental Motion (Dkt. 398), in addition to a Declaration of FBI

Special Agent Jeremy R. Tarwater (Dkt. 398-1). In Agent Tarwater's declaration, he

18 identified that a text exchange between the co-operating witness, and one of the

19 Defendant's co-conspirator's "was not included on the [FBI] Index, and does not

appear in the repository folder on the FBI 's system ... [and] the Custodial Agent

believes this was an oversight ... " (Dkt. 398-1, pg. 7:9-21).

On May 11 , 2022, the Court held an evidentiary hearing regarding the

Defendant's Supplemental Motion. CHS Michael Forster ("CHS Forster") was

24 produced to provide testimony regarding the missing evidence. During the hearing,

CHS Forster was questioned by defense counsel regarding the missing evidence not

26 produced by the Government. CHS Forster confirmed that he deleted thousands of

27 text messages during the relevant period, many of which would have been text

28 exchanges with the Defendant. (Dkt. 419, p.13:7-25; p.14:1-8). Moreover, in

-3DEFENDANT'S MOTION FOR NEW TRIAL

A054

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.3996 Page 4 of 14

1 providing reasoning for the missing evidence, CHS Forster provided two different

explanations between the time of trial and the evidentiary hearing. (Dkt. 419, p.16:21-

3 23). Additionally, CHS Forster confirmed that Agent Tarwater, nor any other member

4 of the FBI ever pointed out to CHS Forster that missing portions of evidence were not

5 turned over by CHS Forster. (Dkt. 419, p.27:6-17). When CHS Forster was

6 questioned on why he lied to Defendant's co-conspirator about the "deal" being

"alive" when at that point in time the deal was "dead," CHS Forster confirmed that

8 his false representations were his "instructions or what [he] was following." (Dkt.

9 419, p. 61:1-4). On June 9, 2022, the Court denied Defendant's Supplemental Motion

10 for New Trial.

III

LEGAL STANDARD

Under Federal Rules of Criminal Procedure, Rule 33, "upon the defendant's

14 motion, the court may vacate any judgment and grant a new trial if the interest of

15 justice so requires." (Fed Rules of Crim. Procedure R. 33(a)). Moreover, "any motion

16 for a new trial grounded on newly discovered evidence must be filed within 3 years

17 after the verdict or finding of guilty." (Fed Rules of Crim. Procedure R. 33(b)(1 )).

The 9th Circuit has held that the proper standard in granting a motion for new

19 trial under Rule 33 on the ground of negligent nondisclosure of evidence by

20 prosecutor, "should call for a new trial wherever nondisclosed evidence might

reasonably have affected the jury's judgment on some material point, without

necessarily requiring a supplementary finding that it also would have changed

its verdict." United States v. Butler, 567 F.2d 885, 890 (9th Cir. 1978) (emphasis

24 added).

Moreover, "reversal follows whether the findings are interpreted as establishing

bad faith or simply misinterpretation of the defense request ... even if the court's

findings were found only to establish negligent or unintentional instead of willful

-4DEFENDANT' S MOTION FOR NEW TRIAL

A055

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.3997 Page 5 of 14

1 nondisclosure of the prosecution's dealings ... reversal of the order denying a new

2 trial would still be required."" United States v. Butler (1978), 567 F.2d 885, 889.

Additionally, the Supreme Court has explained that " ... there are situations in

4 which evidence is obviously of such substantial value to the defense that elementary

5 fairness requires it to be disclosed even without a specific request. United States v.

6 Agurs (1976), 427 U.S. 97, 110. Moreover, the Supreme Court has explained that

7 " ... the fact that such evidence was available to the prosecutor and not submitted to

8 the defense places it in a different category than if it had simply been discovered from

9 a neutral source after trial." Agurs, 427 U.S. 97, 110-111. Thus, it is "[f]or that reason

1O the defendant should not have to satisfy the severe burden of demonstrating that

newly discovered evidence probably would have resulted in acquittal." Id at 111.

ARGUMENT

A. Negligent Non-Disclosure by Prosecutor Standard

1. Newly Discovered Evidence

On March 24th, 2024, the Defendant became aware of the identity of a former

18 CHS named Mr. Alexander Smirnov, through his indictment in the Central District of

19 California. Case No. 2:24-cr-00091-ODW.

The indictment alleges one count of

20 providing false statement to a government agent, 18 U.S.C. §1001, and one count of

falsifying records in a federal investigation, 18 U.S.C. §1519. More specifically, the

22 indictment alleges the following: " ... when the Defendant was authorized to engage in

illegal activity for investigative purposes, he was further admonished that 'Under no

24 circumstances may the CHS ... Participate in an act that constitutes obstruction of

·ustice (e.g., perjury, witness tampering, witness intimidation, entrapment, or

abrication, alteration, or destruction of evidence, unless such illegal activity has

27 been authorized).' When the Defendant was given this admonishment, he signed an

28 FBI form that contained this statement." Case No. 2:24-cr-00091-ODW, page 2 of

-5DEFENDANT' S MOTION FOR NEW TRIAL

A056

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.3998 Page 6 of 14

1 37. However, no such form nor confirmation of his authorization to engage in WRIT

dealings were provided to the defendant.

Additionally, Mr. Smimov has several ties to foreign countries such as Israel,

Ukraine, Austria, and Czech Republic, among others. Upon the Defendant's review

5 of the SEC's trading data for the relevant stock to this matter, "ASNT" several

individuals are listed trading the relevant stock from brokerage accounts located in

7 these foreign countries during the relevant time period. (Def. Trial Exhibits C, D).

In light of this new information, Defendant, through his appellant counsel Mr.

Carl Gunn, reached out to AUSA Mark Rehe, requesting the following: "evidence

1O that is potentially exculpatory and may have been subject to disclosure under Rule 16

of the Federal Rules of Criminal Procedure ... regarding a man named Alexander

12 Smimov, who was recently publicly revealed as a long-time FBI informant when he

was indicted in connection with false statements made in the Hunter Eiden

14 investigation and there was subsequent extensive media coverage." (Exhibit A) In

15 response to Mr. Gunn's request, AUSA Janaki Chopra provided the following

16 response: "I received the attached letter from AUSA Mark Rehe. I am assigned to the

17 Hackett case in our office now. I have reviewed the case and your letter and made an

inquiry regarding the allegations in your letter. Based on this, I believe the United

States complied with its obligations under Rule 16, Brady, Jencks, and Giglio. As a

result, there is no further discovery we anticipate producing in this case." (Exhibit B)

However, contrary to AUSA Chopra's representations, the SEC confirmed

22 Defendant's suspicions that CHS Smimov was the individual identified as Alex

whom Defendant spoke with during the relevant investigation with the Government's

24 primary trial witness CHS Forster.

Therefore, the declarations from the SEC, the criminal complaint against Mr.

Smimov, and the numerous news articles constitute newly discovered evidence.

2. Newly Discovered Evidence ls Highly Material to The Issues at Trial

-6DEFENDANT' S MOTION FOR NEW TRIAL

A057

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.3999 Page 7 of 14

The Government produced in discovery a recorded call between Defendant, a now

2 known to be CHS Smimov, CHS Forster, and "Denis" (an associate of CHS

3 Smimov). The conversation surrounds the "deal" "WRIT," and a transcript created by

4 the FBI, along with the audio recording of the call (recorded by CHS Forster) was

5 produced to the Defendant in discovery. (Exhibit C) The materiality of CHS Smimov

6 and WRIT is underscored in the Government's Motion in Limine.

On September 4, 2019, the Government, in its' Motion in Limine to "Admit the

8 conspirators' references to other penny stock "deals" in describing the ASNT

scheme," which included WRIT, stated the following:

"When discussing the contours of the ASNT conspiracy, the conspirators and

Forster occasionally spoke about other deals as reference points. These

references to other deals are intrinsic evidence of the charged . . . the

evidence should be admitted because it shows defendants' knowledge, plan,

and modus operandi surrounding pump-and-dump schemes. " (Dkt. 172, p. 2,

19-28; 3:1-4).

Moreover, the Government underscores the materiality of the 404(b) evidence:

"The conspirators ' references to other deals to describe aspects of the ASNT

deal constitute direct evidence of the conspiracy and securities fraud alleged

in the indictment." (Dkt. 172, p.8:5-8)

"Dumping shares of ASNT, ... WRIT into an undercover agent's purported

broker network. Hackett and Forster often discussed these stocks collectively

in fluid conversation. Because the conspirators discussed each of these stocks

in connection with, and to illuminate, the conspirators' plans and actions with

respect to ASNT, they are intrinsic evidence of the crimes for which

Defendants are charged... " (Dkt. 172, p.8:21-27).

"... Such intrinsic evidence includes evidence constituting a part of the

transaction that serves as the basis for the criminal charge. ... Intrinsic

evidence, however, also includes evidence that is necessary to permit the

-7DEFENDANT'S MOTION FOR NEW TRIAL

A058

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.4000 Page 8 of 14

prosecutor to offer a coherent and comprehensible story regarding the

commission of the crime. ... This is because the jury cannot be expected to

make its decision in a void-without knowledge of the time, place, and

circumstances of the acts which form the basis of the charge . ... This includes

circumstantial evidence explaining the general nature of a defendant 's

business activity and providing a context in which the transactions at issue

took place. " (Dkt. 172, p. 9:2-8)

Furthermore, the Government connects the references to WRIT with ASNT in

stating that discussions about WRIT provide evidence of the Defendant' s requisite

1O state of mind necessary for the jury to reach a verdict at trial:

"The conspirators discussed the contours of their agreement - the same

agreement that forms the basis for the conspiracy alleged in count 1 of tlie

Indictment - by referring to these deals. Their discussion of these deals is

therefore inextricably intertwined with the ASNT scheme. Introduction of

these conspiratorial discussions will provide the iury with "knowledge of the

time. place, and circumstances" surrounding the ASNT scheme, and allow

for a "coherent and comprehensible story regarding the commission of the

crime. ... " (Dkt. 172, p. 9:11-18)

"The evidence undoubtedly proves several material points - Defendants '

intent, knowledge of, and plan to perpetrate the ASNT scheme, the scope of

their conspiratorial agreement, and their modus operandi surrounding pump-

and-dump schemes ... Second, the discussions were not remote in time. In fact,

the discussions were contemporaneous with the conspiratorial discussions

about ASNT. This is exactly why the United States seeks to introduce this

evidence; the references to other deals were made to articulate, explain, and

illuminate the ASNT scheme. As for the deals themselves, recorded calls make

clear that Hackett was working on the .. . WRIT deals during the same period

-8DEFENDANT'S MOTION FOR NEW TRIAL

A059

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.4001 Page 9 of 14

lie was engaged in active discussions regarding the ASNT scheme, i.e.,

October 2017through at least January 2018." (Dkt. 172, p. 10:4-6,11-17)

Thus, as heavily argued by the government, discussions of WRIT are highly

material to the charges against the defendant, yet Defendant was not provided the

5 documentation such as WRIT brokerage records and other reports that the

Government would have in their possession, from CHS Smirnov, yet denied

providing these records to the defendant. Thus, being an example of prosecutor

misconduct.

3. The Newly Discovered Evidence Might Reasonably Have Affected the

Jury's Judgment On Some Material Point

Throughout the trial, the Government solely provided circumstantial evidence of

the defendant's alleged criminal conduct, to which the jury was positioned to make

inferences regarding the defendant's guilt. The core of the Government's case against

Defendant focuses on the alleged participation in a manipulative trading scheme

("match trading"). However, as the Government stated during the motion in Limine

hearing on November 20, 2019, "We do not have forensic evidence about trades and

match trades with respect to -- and we haven't sought it... " (Dkt. 205, 35:15-16).

This is a prime example of prosecutorial misconduct. The Government knows that

CHS Smimov was involved with WRIT and trading the WRIT stock in connection to

the investigation of the defendant, yet the Government did not disclose to neither the

defendant, nor the Court that such forensic evidence was available to the Government

through FBI CHS Smimov. Defendant was not a shareholder, nor selling stock of

WRIT, since WRIT was CHS Smirnov's deal, as confirmed by CHS Forster:

"AH [Hackett]: Yeah we got myself, Andrew, [CHS], Denis and Denis's uh, client

sorry wha- what's his name again?

D [Denis]: Alex.

AH [Hackett]: Alex.

D [Denis]: Yes, so we're all on so- CHS: I thin-I think [OV]

-9DEFENDANT' S MOTION FOR NEW TRIAL

A060

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.4002 Page 10 of 14

D [Denis]: -so it's-it's actually good timing [CHS] because uh, he actually just had

stopped by my office. So it's actually perfect timing cause' he's-so anything wequestions you have, he' s here uh, so you' re not getting it second hand.

CHS [Forster]: Oh okay, I-I imagine I-I then have to assume that uh, WRIT is uh,

is his deal so uhm,--

D [Denis]: Yes." (Exhibit C)

Not only has the Government withheld CHS Smirnov's identity, the Government,

8 through the FBI, additionally falsely reports that Alex' last name is unknown. The

9 Government intentionally reports this falsity to justify the non-disclosure of relevant

10 evidence to the defendant and allows the Government to lie to the court. The

Government had access to "forensic evidence" of CHS Smimov' s WRIT trading

12 records, yet the non-disclosure of such forensic evidence to Defendant constitutes

prosecutorial misconduct. However, now knowing CHS Smirnov is an FBI

14 informant, Exhibit D which is a WRIT match trading report, is misleading. Nowhere

15 in the report does the FBI show CHS Smimov' s trades of WRIT. Such evidence

16 would show point blank if a "matched trade" occurred. Non-disclosure of this fact

17 allows the Government to continue their false narrative that Defendant was

18 conducting illegal trades, while concealing the definitive facts and misrepresenting to

19 the Court that it did not seek forensic evidence. Below is the document title of Exhibit

20 D, an FBI report alleging to document Defendant's match trades with CHS Forster in

WRIT:

'D-1057 (Rev. 5-8-10)

UNCLASSIFIED

FEDERAL BUREAU OF INVESTIGATION

Electronic Communication

Title :

(U) Document match trading between UCE

and ANDREW HACKETT in "WRIT"

Date :

02/20/2018

(Exhibit D, p. 1)

-10 DEFENDANT' S MOTION FOR NEW TRIAL

A061

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.4003 Page 11 of 14

1 Contained within Exhibit D, the FBI outlines CHS Smimov's involvement with

WRIT:

WRIT News Releases:

As documented elsewhere, HACKETT, ALEX last name unknown (described

as a company executive at WRIT), and "DENIS" (a broker known to be

JOSEPH PADILLA) had previously discussed with CHS a list of WRIT news

releases ready to be disseminated in coordination with stock promotion

and/or liquidity campaigns. A list of news releases was provided by

DENIS/ALEX (proton user names not ascertained) to HACKETT to CHS via

proton on 1/11/2018 (see attached).

(Exhibit D, p. 4).

In the portion of exhibit D, depicted above, the FBI states that CHS Smimov's

usemame was not "ascertained." However, CHS Smimov, as an FBI CHS would

12 have been obligated to provide all his email/encrypted messaging accounts to the

FBI, especially while engaging with targets of FBI investigations. Yet, the FBI had an

obligation to obtain CHS Smimov's account information certainly after appearing on

a recorded call with another CHS, and after being documented in an FBI report

16 during an investigation. This example of concealment of information pertaining to its

17 own CHS by the FBI during its investigation of the defendant should have been

18 presented to the jury to cast doubt on the credibility of its investigation of the

19 defendant. Nevertheless, evidence documented from CHS Smimov's involvement

with WRIT, the defendant, and CHS Forster reasonably would have affected the

21 jury's judgment and most certainly, as stated by the Government, was important for

the alleged criminal accusation. In the example of WRIT, CHS Smimov controlled

the WRIT shares, and the FBI would have had access to his shares and trading

records or reports of his conduct with WRIT and all other communications CHS

Smimov had pertaining to WRIT. The man referenced as Denis was CHS Smimov' s

broker who had access to sell the WRIT shares for CHS Smimov, yet no recordings

or documents of their communication, no records of any sort, no reports were

disclosed to Defendant by the Government. This is prosecutorial misconduct at its

- 11 DEFENDANT'S MOTION FOR NEW 1RIAL

A062

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.4004 Page 12 of 14

1 finest. The referenced agreement with the FBI and CHS Smimov classifies this as

2 "Obstruction of justice." This evidence could have been so damaging to the

3 Government's theory of Defendant's intent that the Government purposely did not

4 disclose such evidence to the defendant in order to maintain its misleading theory that

5 relies solely on circumstantial evidence rather than forensic evidence the Government

6 had available. CHS Smimov would have authorization to conduct WRIT trades,

7 communicate with targets such as the defendant and CHS Smimov' s associate Denis,

8 and would have to provide documentation to the FBI regarding his involvement with

9 WRIT and or the ASNT/HVST scheme. Yet, none of this was turned over to

1O Defendant.

The best evidence of Defendant's state of mind would have been produced

12 through CHS Smimov's reports, recordings, records and most importantly brokerage

records collected while working with the FBI and conducting trades of WRIT and

14 having CHS Forster "promote" WRIT by having the FBI conduct buy orders of the

stock. However, even though both parties involved with trading WRIT in this

16 instance were informants with the FBI, the Government only provided the buy orders

17 of WRIT (Exhibit E, p. 23, 28), and if CHS Smimov did not sell WRIT shares then

18 that exculpatory evidence needs to be turned over to the defendant in the form of

19 brokerage records. Again, this allowed the Government to maintain its misleading

20 case against the defendant by presenting solely circumstantial evidence at trial, rather

than forensic trading records it had access to. Essentially, only providing the

22 defendant a misleading report produced by the FBI and the fact the Government

continues to refuse to disclose the relevant documents is clearly prosecutorial

24 misconduct.

During its Motions in Limine, the Government submitted a substantial and

26 thorough argument as to why discussions of WRIT should be presented to a jury at

27 trial. However, the Defendant should also have been afforded the same opportunity to

- 12 DEFENDANT' S MOTION FOR NEW TRIAL

A063

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.4005 Page 13 of 14

1 introduce relevant evidence in support of his defense-that the defendant does not

possess the requisite state of mind for both charges alleged by the Government.

The Government's closing remarks to the jury at trial describe the significance of

4 the transfer agent form, which states in pertinent part thatthe defendant did not make

5 nor propose to make any payment in connection with the offer or sale of the shares

being deposited. (Dkt. 345, p. 722: 22-24). The Government stated that

7 misrepresenting "on that and that alone, ladies and gentlemen, you can convict

8 Andrew Hackett for securities fraud. It is a misrepresentation or omission in

9 connection with the sale or purchase of securities. That and that alone is a basis to

10 convict ... This is enough. It's also enough to convict on the conspiracy count ... " (Dkt.

345, p.724: 18-25)

However, CHS Smimov's WRIT trades would have been the only forensic

evidence provided to the jury during trial to show that the defendant's lack of the

14 requisite state of mind required for both securities fraud and conspiracy charges. Such

15 forensic evidence would have reasonably affected the jury's judgment on whether the

16 defendant misrepresented on the transfer agent form-on the highly material point

17 that Defendant did not make and did not propose to make any payment in connection

18 with the offer or sale of the shares being deposited and would have created serious

19 doubt about the Government's theory of the case at trial for the jury. Instead,

20 prosecutorial misconduct was the easier route for the Government, in order to present

a misleading case to the jury. The Government continues this by not disclosing the

22 evidence collected by CHS Smimov to the defendant.

CONCLUSION

The materiality of the newly discovered evidence is undeniable, as is the

standard set by the 9th Circuit. The test applicable to claims of negligent

prosecutorial non-disclosure of evidence essential for or at least useful to the full

- 13 DEFENDANT'S MOTION FOR NEW TRIAL

A064

Case 3:18-cr-03072-TWR Document 496 Filed 07/05/24 PageID.4006 Page 14 of 14

1 presentation of the defense requires a new trial whenever the non-disclosed evidence

2 might reasonably have affected the jury's judgment on some material point. Butler,

567 F.2d 885, 890 (9th Cir. 1978). As the Government has said in its own words, the

4 WRIT deal in and of itself is intrinsic evidence of Defendant's state of mind

5 regarding both charged counts concerning ASNT. This is more than a mere material

6 point, rather, this evidence, as the Government vehemently stated is the modus

7 operundi of both charges against the defendant. The heart of the Government's

8 allegations against the defendant surrounds his intent to engage in manipulative

9 trading through a match trading scheme. However, Defendant and CHS Smirnov's

10 interactions and reports concerning WRIT would have reasonably affected the jury's

11 judgment on whether the Defendant sold his stock in connection with any proposed

sales. Instead, the intentional non-disclosure of such evidence allowed the

Government to mislead the jury, deceive the Court during its Motions in Limine, and

14 provide a false presentation of the facts at trial. Additionally, the defendant was

denied evidence that was, at a minimum, useful to his defense at trial. The decision of

16 whether to call CHS Smirnov as a witness in the defendant's defense was his decision

17 to make, not the Government's. The Government purposely continues to withhold

disclosure of such evidence, in violation of the defendant's due process rights.

For the reasons stated above, the defendant respectfully requests that this Court

grant Defendant's Motion for New Trial.

24 Dated:

/s/ Andrew Hackett

26 Andrew Hackett (pro se)

27 Defendant

28 Email: andrewyge@gmail.com

- 14 DEFENDANT' S MOTION FOR NEW TRIAL

A065

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4007 Page 1 of 18

UNITED STATES DISTRICT CO

SOUTHERN DISTRICT OF CALIFO~~------

Case No.: 3-18-cr-03072-TWR-l

UNITED STATES OF AMERICA

Plaintiff,

VS .

DECLARATION OF ANDREW

HACKETT IN SUPPORT OF

DEFENDANT'S MOTION FOR

NEW TRIAL BASED ON NEWLY

DISCOVERED EVIDENCE AND

PROSECUTORIAL MISCONDUCT

ANDREW HACKETT

Defendant.

12 1 - - - - - - - - - - - - - - 13

DECLARATION OF ANDREW HACKETT

I, Andrew Hackett, pursuant to 28 U.S.C. § 1746, declare as follows:

1. I am the defendant in this action before the Court. I submit this declaration in

support of the Defendant Andrew Hackett's Motion For New Trial Based On

Newly Discovered Evidence And Prosecutorial Misconduct.

2. Attached as Exhibit A is a letter from Defendant's Appellate Attorney, Carl

Gunn, dated May 4, 2024, addressed to the Assisstant United States Attorney' s

Office.

3. Attached as Exhibit B is an email from Assistant United States Attorney,

Janaki Chopra, dated May 8, 2024, in response to Carl Gunn's letter dated May

4, 2024.

4. Attached as Exhibit C is an excerpt of a FBI transcript of a recorded call on

January 10, 2024, between Defendant, CHS For~ter, Denis, and CHS Smirnov.

5. Attached as Exhibit D is an FBI report regarding "WRIT" dated February 20,

2018.

- 1-

A066

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4008 Page 2 of 18

6. Attached as Exhibit E is excerpts of FBI' s brokerage account records detailing

the "buy" orders of "WRIT" (Bates No. SC14-REPORTS-000129).

8 San Diego, California

9 July 5th, 2024

/s/ Andrew Hackett

Andrew Hackett

-2-

A067

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4009 Page 3 of 18

EXHIBIT A

A068

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4010 Page 4 of 18

CARLTON F. GUNN

ATTORNEY AT LAW

1010 North Central Ave., # 100

Glendale, California 91202

323-474-6366

April 4, 2024

MarkRehe

Assistant United States Attorney

United States Attorney's Office

880 Front Street, Room 6293

San Diego, CA 92101

re: United States v. Andrew Hackett

Dear Mr. Rehe:

While Mr. Hackett's prose motion for appointment of counsel for a motion for new trial

(District Court Dkt. #492) is pending, I am writing on his behalf and on behalf of whatever

counsel may end up representing him in the district court. The reason I am writing is to request

evidence that is potentially exculpatory and may have been subject to disclosure under Rule 16 of

the Federal Rules of Criminal Procedure. It is regarding a man named Alexander Smimov, who

was recently publicly revealed as a long-time FBI informant when he was indicted in connection

with false statements made in the Hunter Biden investigation and there was subsequent extensive

media coverage.

During the time of the undercover investigation of Mr. Hackett, he had contact with a

man using the first name of "Alexander" who had an associate named Nayflish, whom media

coverage suggests is an associate of Alexander Smirnov. Based on this, it appears likely that the

"Alexander" with whom Mr. Hackett had contact is Alexander Smirnov and it seems reasonable

to also infer that he was acting as an informant on behalf of the FBI at the time.

It further seems likely- or at least reasonably possible - that Mr. Smirnov's contacts with

Mr. Hackett would have produced either recordings of their conversations - if he had instructions

similar to the informant who actually testified in Mr. Hackett's trial - or reports or notes

summarizing the conversations. Assuming that is the case, Mr. Hackett would like to have those

recordings, reports, or notes. He would be entitled to recordings, reports, or notes even now if

they are potentially exculpatory, and he would have been entitled to recordings that were simply

"relevant" at the time of trial, under Rule 16(a)(l)(B)(i) of the Federal Rules of Criminal

Procedure. Disclosure would also be consistent with what the Supreme Court has described as

the prosecution's broader duty "to set the record straight," Banks v. Dretke, 540 U.S. 668, 676

(2004).

I am hoping your office will agree to inquire into the existence of evidence such as I

describe and either you or some other appropriate AUSA will make the inquiry. Please let me

know if that is correct as soon as you can. I am hoping the inquiry can be made promptly

because, absent some sort of tolling, the three-year deadline for a motion for new trial based on

A069

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4011 Page 5 of 18

newly discovered evidence will run by August 2 of this year.

Thank you for your consideration, and please let me know if you have any questions.

Sincerely,

~ r . / 2---Carlton F. Gunn

AUSA 2 Ltr.wpd

A070

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4012 Page 6 of 18

EXHIBIT B

A071

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4013 Page 7 of 18

From:

To:

Subject:

Date:

Attachments:

Q,opra Janaki cusACAS}

cauoolaw@gmaH com

Andrew Hackett

Wednesday, May 8, 2024 10:05:31 AM

AUSA 2 Ltr fsjgned} pdf

Dear Mr. Gunn,

I received the attached letter from AUSA Mark Rehe . I am assigned to the Hackett case in our office

now. I have reviewed the case and your letter, and made an inquiry regarding the allegations in your

letter. Based on this, I believe the United States complied with its obligations under Rule 16, Brady,

Jencks, and Giglio. As a result, there is no further discovery we anticipate producing in this case.

Sincerely,

Janaki

JanakiGandhiChopra

Assistant United States Attorney

Southern District of California

880 Front Street

San Diego, CA 92101

(619} 546-8817

A072

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4014 Page 8 of 18

EXHIBIT C

A073

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4015 Page 9 of 18

UNCLASSIFIED

UNITED STATES DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF INVESTIGATION

10385 Vista Sorrento Parkway

San Diego, California 92121

File Number:

Requesting Official(s) and Office(s):

SA Jeremy Tarwater

Task Number(s) and Date Completed:

01-10-2018 _ 054258PM,

Name and Office of Typist(s):

SD 76478, San Diego

Name and Office ofReviewer(s):

SA Jeremy R. Tarwater 3/30/2018

Source File Information

Name of Audio File or CD:

-CD : Out_sdcitation9492393587_01-10-2018_054258PM [00.22.26]

-Telephone recording

Participants:

Abbreviations:

CHS :

AH:

Citation

Andrew Hackett

Alex

Denis

[UI]

[PH]

[OV]

Unintelligible

Phonetic

Overlapping Conversation

UNCLASSIFIED

SC 14-DTrans-000202

A074

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4016 Page 10 of 18

UNCLASSIFIED

File Number:

Task Number:

01-10-2018 054258PM

Recording Date: 01/10/2018

AH:

Yep.

CHS :

Okay.

[UI]

AH:

Is that-[UI] Denis?

Hey, Denis-Denis and Alex here.

CHS :

Hey Denis, [CHS' s] here [OV]-

AH:

And then I got- I got my friend on as well .

Who' s on?

AH:

Okay-

Who's on?

AH:

Yeah we got myself, Andrew, [CHS], Denis and Denis' s uh, client sorry whawhat' s his name again?

Alex.

AH:

Alex.

Yes, so we' re all on so-

CHS :

I thin-I think [OV]

-so it's-it's actually good timing [CHS] because uh, he actually just had stopped

by my office. So it's actually perfect timing cause' he's-so anything we-questions

you have, he's here uh, so you're not getting it second hand.

CHS :

Oh okay, I-I imagine 1-1 then have to assume that uh, WRIT is uh, is his deal so

uhm,--

Yes.

UNCLASSIFIED

SC 14-DTrans-000204

A075

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4017 Page 11 of 18

EXHIBITD

A076

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4018 Page 12 of 18

~-----1

~ OFPICIAL_ REC0RD

FD-1057 (Rev. 5-8-10)

,,,..,_._,.,.balrlwsllld. by• J

•• ••

oallld FBJ ~ 9)'All1!t

UNCLASSIFIED

FEDERAL BUREAU OF INVESTIGATION

meotronlo COmmunloallon

Title:

(U) Document match trading between UCE

and ANDREW HACKETT in "WRIT"

From:

SAN DIEGO

SD-WCl

Contact:

Date:

02/20/2018

Approved By: SSA Mark Kolenda

Drafted By:

Case ID#:

DOCUMENT RESTRICTED TO CASE PARTICIPANTS

This document contains information that is restricted to case participants.

Synopsis:

(U) Document match trading between UCE and ANDREW HACKETT

on 2/9/2018 and 2/13/2018 in issuer "WRIT"

Enclosure(s): Enclosed are the following items:

(U) SEC non-objection regarding "WRIT"

(U) WRIT proton emails, press releases and trading backup

(U) SEC non-objection 2/16/2018 to sell WRIT shares

Details:

with

(the "UCE") participated in the following match trades

KETT ("HACKETT") :

February 09, 2018:

As arranged per separately documented consensually monitored

communications:

UNCLASSIFIED

A077

SC14-REPORTS-000136

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4019 Page 13 of 18

UNCLASSIFIED

Title:

"WRIT"

Re:

(U) Document match trading between UCE and ANDREW HACKETT in

02/20/2018

UCE placed a limit buy order at $0.219 for 20,000 shares of WRIT

MEDIA GROUP INC., OTC ticker "WRIT", headquartered in Beverly Hills,

California 90211 (herein "WRIT"). The order was filled at

approximately 11:23 a.m. New York time at between $0.195 and $0.20 per

share.

UCE placed a second limit buy order at $0.219 for 15,000 shares of

WRIT that was filled at approximately 11:37-11:38 a.m. New York time

at between $0.195 and $0.20 per share.

UCE placed a third limit buy order at $0.219 for 15,000 shares of

WRIT that was filled at approximately 11:54-11:55 a.m. New York time

at between $0.195 and $0.20 per share.

Total purchased 2/09/2018: 50,000 shares of WRIT at a cost of

approximately $9,962.50 (plus brokerage commissions).

February 13, 2018:

As arranged per separately documented consensually monitored

communications:

UCE placed a limit buy order at $0.195 for 20,000 shares of WRIT

that was filled at approximately 12:35 p.m. New York time at between

$0.18695 and $0.194 per share.

UCE placed a second limit buy order at $0.194 for 20,000 shares of

WRIT that was filled at approximately 12:53-12:54 p.m. New York time

at between $0.17155 and $0.18 per share.

UCE placed a third limit buy order at $0.18 for 10,000 shares of

WRIT that was filled at approximately 1:03 p.m. New York time at $0.18

per share.

Total purchased 2/13/2018: 50,000 shares of WRIT at a cost of

approximately $9,240.76 (plus brokerage commissions).

Kickback Owed:

UNCLASSIFIED

A078

SC14-REPORTS-000137

Case 3:18-cr-03072-TWR Document 496-1 Filed 07/05/24 PageID.4020 Page 14 of 18

UNCLASSIFIED

Title:

"WRIT"

Re:

(U) Document match trading between UCE and ANDREW HACKETT in

02/20/2018

Based on prior consensually recorded communications, HACKETT agreed

to pay a 30% "commission" for shares purchased (and "put away") by

UCE's purported network of fund managers and brokers. HACKETT also

agreed to pay CHS (the "CHS") a 5% referral fee for the

referral to UCE.

For the above referenced share purchases made 2/9/2018 and 2/13

/2018:

30% "commission" owed by HACKETT to UCE: Approximately $5,760.98

5% referral fee owed by HACKETT to CHS: Approximately $960.16

On 2/11/2018, CHS sent via proton email to HACKETT and UCE a

spreadsheet tracking shares purchased by UCE, "commission" owed by

HAKCETT to UCE, and 5% referral fee due by HACKETT to CHS. The proton

email and spreadsheet are attached.

Note, HACKETT utilizes proton email account

freelifeinvestmentsinc@protonmail.com, CHS utilizes

troutflyfish@protonmail.com, and UCE utilizes delmarcapital@protonmail.

com.

On 2/13/2018 CHS sent another proton email to HACKETT and UCE

adding to the WRIT tracking spreadsheet the 2/13/2018 trades noted

above. This spreadsheet, which is attached, listed the "commission"

owed by HACKETT to the UCE and the 5% referral fee due by HACKETT to

CHS. The proton email is attached. This spreadsheet reflected

100,000 shares of WRIT thus far "put away" by UCE's purported network.

For information, writer was advised that on 2/14/2018, a wire was

received in the approximate amount of $6,719 to a covert FBI bank

account. HACKETT confirmed he sent the above described wire in

payment of the "commission" and referral fees owed for trades done in

WRIT on 2/9/2018 and 2/13/2018.

Covert FBI Account:

UNCLASSIFIED

A079

SC14-REPORTS-000138

Case 3:18-

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.