Petition for Writ of Certiorari — Friemannann v. United States (No. 05-710)

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motion for a severance. The District Court’s severance

order provided that petitioner “shall be tried on all counts

presently pending against him in one trial, to be held sub-

sequent to Mr. Isernio and Mr. Agoglia’s trial” (28a;

emphasis supplied). The court’s reference to “one trial”

referred to the District Court’s earlier ruling that petition-

er was entitled to two trials: one on the BPA conspiracy

charges, and the second on the tax charges.. In its sever-

ance order the court did not address what it planned to do

in the event that the then planned joint trial of Isernio and

Agoglia did not finally resolve all charges against those

defendants.

The Trial of Mr. Isernio and Mr. Agoglia

Following the severance, the “Mr. Isernio and

Mr.Agoglia’s trial” commenced. Agoglia was acquitted by

the court at the close of the government’s case. The case

against Isernio ended in a mistrial on April 10, 2063, when

the jury could not unanimously agree on a verdict.

On March 18, 2003, as the “Mr.Isernio and Mr.

Agoglia’s trial” was nearing a conclusion, petitioner

requested a status conference (37a). However, the District

Court did not hold that conference until June 27, 2003,

over two months after “Mr. Iserno and Mr. Agoglia’s trial”

had concluded. At that conference, petitioner’s counsel

proposed an accelerated motion schedule to allow him to

seek a pre-trial dismissal of the BPA conspiracy charges

against petitioner based upon the prosecution’s proof at

“Mr.Isernio and Mr. Agoglia’s trial”, which had in fact

exonerated petitioner of any involvement in that conspira-

cy. The Court set September 19, 2004 for the submission

of any motion papers. The prosecution represented at that

time that the petitioner’s proposed motion might become

moot since it was re-evaluating the case against petitioner

and considering the return of another superseding indict-

ment (39a-41a, 44a). At that time the Court made no “ends

of justice” finding, nor did the court or the prosecutor seek

a speedy-trial waiver from petitioner.

On July 30, 2003, the prosecution obtained a new indict-

ment against Isernio, unrelated to the conspiracy charges,

and charging Isernio with currency-reporting violations.

(Indictment No. 03CR866). Isernio was the sole defendant

named in that indictment.

Petitioner’s Speedy Trial Motion

When no superseding indictment against petitioner had

been filed, on September 18, 2003 petitioner moved to dis-

miss S-2 on the ground that the government’s time within

which to try him had expired under the Speedy Trial Act

(45a). Over five months had elapsed since April 10, 2003,

when the District Court had declared a mistrial in the pro-

ceeding against Isernio—and thus had concluded “Mr.

Isernio and Mr. Agoglia’s trial.”

On September 24, 2003, the prosecution obtained and

filed indictment S-3 against Isernio alone, charging him

with the BPA conspiracy that was the subject of indictment

S-2 and on which Isernio had received a mistrial.

On September 26, 2003, within a week of petitioner’s

filing his Speedy Trial Act motion, the District Court held

a pretrial conference with the prosecutor and Isernio’s

counsel. Neither petitioner nor his counsel was informed

of or invited to the conference. At that conference, the Dis-

trict Court ordered that Isernio be tried on the new, unre-

lated, currency-reporting indictment on January 5, 2004,

and Isernio’s trial on indictment S-3, would commence on

February 4, 2004 .(93a-94a, 97a).

On October 15, 2003, nearly a month after petitioner’s

Speedy Trial motion had been filed, the prosecution

returned an eight-count indictment, S-4, against petitioner

only. This indictment dropped the BPA conspiracy charges,

but retained the money-laundering conspiracy and income

tax fraud charges from S-2 (10a). S-4 is the indictment on

which petitioner was eventually tried.

On January 21, 2004, Isernio was found guilty by a jury

on the new, currency-reporting indictment. Six days later,

on January 27, 2004, Isernio pled guilty to S-3.

The District Court’s Opinion

One month after that, on February 26, 2004, the District

Court finally ruled on petitioner’s Speedy Trial motion

(103a).

This February 26, 2004 decision was rendered over five

months after petitioner had, on September 18, 2003, made

his Speedy Trial motion and ten months after, on April 10,

2003, the District Court had terminated the “Mr. Isernio

and Mr. Agoglia’s trial” by declaring a mistrial as to

Isernio.

In its decision, the District Court stated that when she

granted petitioner’s renewed motion for a severance, peti-

tioner had accepted the condition that the charges against

him would be tried in but a single trial and that he “knew

that his-trial would occur after a resolution of the case

against Isernio and Agoglia” (105a; emphasis the court’s).

This was incorrect.

In her decision, the District Court emphasized the word

“after,” but the key error was her substitution of the word

“resolution” for the word “trial.” The severance order had

provided that petitioner’s trial was to take place “after Mr.

Isernio’s and Mr. Agoglia’s trial” (28a; emphasis added), a

trial that was then already into jury selection. There is

nothing in the record to support an interpretation of the

severance agreement and order as meaning that petitioner

would be tried only after a “resolution” of the case against

Isernio, including retrials and even the trial of a separate,

unrelated, future charge against him. Rather, all that peti-

tioner had agreed to was that he was to be tried after the

then imminent, even into jury selection, “Mr. Isernio and

Mr. Agoglia’s trial”. The fact that the case against one of

these defendants, Isernio, ended in a mistrial did not alter

the clear and express terms of petitioner’s agreement or of

the Court’s severance order.

On March 29, 2004, the District Court held a pre-trial

telephone conference on S-4 at which the court orally

denied petitioner’s motion to renew his speedy-trial

- motion and announced that unless petitioner waived the

speedy trial limitation, jury selection would begin the fol-

lowing day. Petitioner refused to waive his speedy-trial

rights and jury selection began the next day (110a, 114a-

15a).

On April 14, 2004, petitioner was acquitted by the jury

on all but one count, Count Five, which charged that peti-

tioner had falsely claimed an $11,011 deduction for the

expense of maintaining an office in his home on a 1998

partnership return that he had prepared.' Petitioner was

| The counts on which petitioner was found not guilty had

charged him with conspiracy to commit money laundering (Count 1)

sentenced to three-years probation and ordered to pay

$3,082 restitution (116a). The conviction jeopardizes his

CPA license and severely damages his professional reputa-

tion.

Petitioner’s Appeal

Petitioner appealed to the Second Circuit, contending,

inter alia, that the 11-month lapse of time from the con-

clusion of “Mr. Isernio and Mr. Agoglia’s trial” (April 10,

2003) to jury selection for petitioner’s trial on S-4 (March

30, 2004) violated the Speedy Trial Act.

While petitioner’s appeal was pending, the Second Cir-

cuit decided United States v. Zedner, 401 F.3d 36, Pet. for

cert. pending, No.05-5992, holding both that the Speedy

Trial Act could be “waived” and that the “harmless error”

doctrine applied to violations of the Act.

On June 17, 2005, the Second Circuit affirmed petition-

er’s conviction, holding with respect to petitioner’s

Speedy Trial Act argument that (i) petitioner had “waived”

his rights under the Act, and (ii) “[e]ven if we assume

arguendo that [petitioner’s] speedy trial right’s were vio-

lated ... such error was harmless” (4a), citing and relying

upon both Zedner and its earlier decision in United States

v. Gambino, 59 F.3d 353, 360 (2nd Cir. 1995), cert. den.

517 U.S. 1187.

In its “not for publication” opinion affirming petition-

er’s conviction, the Court of Appeals stated the following

with respect to petitioner’s Speedy Trial Act claims:

and a series of tax counts related to his allegedly having aided and

assisted the BPA conspiracy (10a).

Friemann ... alleges that his rights under the

Speedy Trial Act, 18 U.S.C. § 3162, were violat-

ed when the Government failed to try him within

70 days of April 10, 2003, the date on which the

District Court declared a mistrial in the case

against Albert E. Isernio, Friemann’s former co-

defendant. On appeal, dispute centers on whether

Friemann, by agreeing to delay his trial pending

the outcome of Isernio’s, waived his speedy trial

rights for the one year period following Isernio’s

mistrial, even when this event was apparently not

foreseen by either party.

The Speedy Trial Act authorizes district courts to

“exclude[]” time from. the prescribed 70-day

period for certain kinds of delays. See 18 U.S.C.

§ 3161(h)(1)-(8). Apart from these exclusions,

defendants generally may not waive Speedy Trial

Act protections because of the public’s independ-

ent interest in prompt criminal trials. United

States v. Gambino, 59 F.3d 353, 360 (2d Cir.

1995. We permit waiver, however, when delays

result from defendants having “request[ed} an

adjournment that would serve the ends of jus-

tice.” United States v. Zedner, 401 F.3d 36, 45

(2d Cir. 2005).

.... On the record before us, we conclude that

the District Court did not err in deciding that

“any delay caused by Isernio’s mistrial...is

directly attributable to Friemann’s motion to

sever.” Here, as in Zedner, the Government was

fully prepared to try the defendant—indeed jury

selection was already under way—and the case

was delayed only at Friemann’s request. Further,

the District Court did not err in finding that (1) the

adjournment of Friemann’s trial was designed to

promote goals of judicial efficiency, and (2) this

goal could not be attained by proceeding with

Friemann’s trial prior to the ultimate resolution

of Isernio’s case. That Friemann acquiesced in

delaying his trial in this manner is strongly sug-

gested by his failure to raise any speedy trial

objections between June 19, 2003, when he now

alleges that the speedy trial “clock” expired, and

September 18, 2003, when he filed this motion.

(3a-4a)

Having accepted a non-statutory waiver exception to the

Speedy Trial Act, the Second Circuit then confirmed its

Zedner holding that any error as to the waiver was

nonetheless “harmless,” stating:

Even if we assume arguendo that Friemann’s

speedy trial rights were violated, the District

Court properly denied Friemann’s motion

because any such error was harmless. See Zed-

ner, F.3d at 47-48; Gambino, 59 F.3d at 362-63.

Had the District Court dismissed the indictment

on speedy trial grounds, it would have done so

“without prejudice” because the charged offenses

were serious, the Government acted in good

faith, the defendant benefitted significantly from

delays, and Friemann failed repeatedly to raise

any speedy trial concerns. In such circumstances,

the Government could (and likely would) have

re-indicted Friemann, leaving Friemzin’s legal

position unchanged. On nearly identical] facts in

Gambino, we held that the District Court’s denial

of a motion to dismiss on speedy trial grounds

constituted harmless error, and we follow that

holding here. 59 F.3d at 363. (4a-5a)

In short, the Court of Appeals affirmed petitioner’s con-

viction on waiver grounds and then backed up its decision

with a harmless-error analysis that, one, had never been

relied upon by the District Court, and, two, for all practi-

cal purposes, eviscerates the Speedy Trial Act’s mandatory

provisions.

Reasons for Granting the Writ

On August 22, 2005, counsel for the defendant in Unit-

ed States v. Zedner filed with this Court a petition for cer-

tiorari seeking review of Zedner’s conviction (No.

05-5992). In his petition for certiorari counsel for Zedner

has exhaustively set forth why he believes certiorari

should be granted to review the issues presented by that

case. Rather than burdening this Court with a full repeti-

tion of all that counsel has there so fully and well argued

as to why this Court should review these issues, we here

adopt and incorporate by reference what Zedner has set

forth in his petition as to why these are issues warranting

review by this Court.

In addition to what counsel for Zedner has argued in his

petition concerning “waiver” and “harmless error” under

the Speedy Trial Act, we note the following with respect to

why petitioner Friemann’s case also warrants review by

this Court:

A. The Waiver Issue

The split in the circuits as to whether and to

what extent a defendant can waive his Speedy

Trial Act rights warrants this Court’s grant-

ing review in this case.

There exists a deep division among the circuits as to

whether a defendant may waive rights under the Act other

than as the Act specifically provides, that is, by going to

trial or pleading guilty or nolo contendere without moving

to dismiss under the Act. For example, the Fifth Circuit

refused tc adopt a waiver exception in United States v.

Willis, 958 F.2d 60 (Sth Cir. 1992), at 64:

District courts must take seriously the dictates of

the Speedy Trial Act in the day-to-day operations

of their courtrooms both when setting trial dates

and when ruling on continuances. District courts

may not under daily pressures of docket avoid

these congressionally mandated strictures by cre-

-ating judicia! exceptions which swallow the rule

... If Congress is troubled by the effects of the

dismissal remedy in these cases, it may provide

an additional exception under the Act for contin-

uances requested by defendants. Until that time

we are bound by the provisions of the Act.

(emphasis added)

— eee ——

Willis has been followed by the Third, Sixth, Eighth, Ninth

and Tenth Circuits.”

On the other hand, the First Circuit in United States v.

Pringle, 751 F.2d 419 (1984), held that a defendant may

waive his or her speedy trial rights where the defendant

caused the delay, despite the District Court’s failure to

make an ends of justice finding. Pringle bars a dismissal —

where “[i]n essence, defendar*: would have successfully

worked both sides of the street, lulling the court and pros-

ecution into a false sense of security only to turn around

later and use the waiver induced leisurely pace of the case

as grounds for dismissal.” /d. at 434, emphasis added. In

addition to this view being followed by the Second Circuit

in Zedner, it is also followed by the Fourth and Seventh Cir-

cuits. See United States v. Keith, 42 F.3d 234 (4th Cir.

1994); United States v. Kucik, 909 F.2d 206 (7th Cir. 1990).

However, these decisions allowing such a waiver ignore

that a plain reading of 18 U.S.C. §3161(h)(8)(A)’s “ends

of justice” exclusion shows that by that provrsion Con-

gress intended to deal with the possibility of a defendant’s

attempting to “sand bag” the district court by imposing

upon the district courts the duty to monitor and responsi-

bly manage their criminal cases. Thus, before granting a

continuance beyond the limitations period, the District

2 See, e.g., United States v. Carrasquillo, 667 F.2d 382, 391 (3d

Cir. 1981); United Siates v. Blackwell, 12 F.3d 44, 48 (Sth Cir.1994);

Greenup v. United States, 401 F.3d 758, 764, Nos. 03-6530, 03-6580

(6th Cir. Mar. 29, 2005), ordered unpublished (6th Cir. June 2, 2005),

reh'g en banc denied (6th Cir. Aug. 2, 2005); United States v. Ray, 768

F.2d 991, 998 n.11 (8th Cir. 1985), overruled on other grounds; Hen-

derson v. United States, 476 U.S. 321 (1986); United States v. Ramirez-

Cortez, 213 F.3d 1149, 1154 (9th Cir. 2000); United States v. Pasquale,

25 F.3d 948, 951-52 (10th Cir. 1994).

Court is obligated to first consider the public’s interest in

prompt prosecution before granting an adjournment under

that exclusion.

That provision allows the exclusion of:

[a]ny period of delay resulting from a continu-

ance granted by any judge on his own motion or

at the request of a defendant or his counsel or at

the request of the attorney for the Government, if

the judge granted such continuance on the basis

of his findings that the ends of justice served by

taking such action outweigh the best interest of

the public and the defendant in a speedy tria!.

But, at the same time, the statute also specifically provides

that:

[n]o such delay resulting from a continuance grant-

ed by the court in accordance with this paragraph

shall be excludable under this subsection unless

the court sets forth, in the record of the case,

either orally or in writing, its reasons for finding

that the ends of justice served by granting of such

continuance outweigh the best interests of the

public and defendant in a speedy trial. (emphasis

added.)

Of course, no such record was ever made by the District

Court in this case, There was, very simply, no “ends of jus-

tice” finding and no weighing of the public’s or the defen-

dant’s interest in a speedy trial. This case demonstrates the

wisdom of this statutory scheme. Here, had the District

Judge properly addressed the Speedy Trial issue at the

June 27, 2003 status conference, or even in September

when the Speedy Trial Act motion was filed, the record

would have been clear as to what the Court had in mind,

and the parties would have been afforded a fair opportuni-

ty-+to express their positions and desires.

Finally, it is clear that this Court has not ruled on the

issue of waiver presented by this petition, which in New

York v. Hill, 528 U.S. 110 (2000) this Court recognized.

There, this Court found that a defendant could waive the

time limitations under the provisions of the Interstate

Agreement on Detainers. However, when considering

arguments based upon the Speedy Trial Act, the Court was

careful to point out that: “the Speedy Trial Act is not

before us today, and we express no view on the subject.” .

Id. at 117 fn. 2.

With all respect, this Court should use this case to

address this so-important issue on which the Circuit Courts

have disagreed.

2. There was in this case no sufficient factual

basis for the finding of waiver that the Court

of Appeals made.

Although it is our view that the Speedy Trial Act does

not allow for any means of “waiving” its protections other

than as specifically provided for in §3162(a)(2) of the Act,

we submit that, even if a non-statutory “implicit” waiver

were to be allowed, as the Second Circuit has here held, on

the record in this case there was no sufficient factual basis

for finding the “waiver” that the courts below found in this

case. Compare, New York v. Hill’s focusing on the specific

factual record in that case in finding that there respondent

Hill had to be held to have waived the IAD’s protections

against delay. 528 U.S. at 112.

Here, petitioner never asked for, or in any other way

sought, delay. Rather, for entirely good and sufficient rea-

sons defense counsel renewed his earlier denied motion for

a severance from the trial of Isernio and Agoglia (See 29a,

defense counsel’s letter to District Court dated January 14,

20.3).? And, by petitioner’s counsel having agreed to the

government’s counter-proposal that petitioner be tried fol-

lowing the upcoming trial of Isernio and Agoglia (32a),

plainly, petitioner never “prospective[ly] waive[d] all pro-

tection of the [Speedy Trial Act] time limits or of the [Act]

generally.” See New York v. Hill, 528 U.S., at 115. Nor, just

as plainly, did petitioner ever agree that his trial should be

had following a retrial of Isernio, much less that petition-

er’s trial would not be had until after Isernio had first been

tried on an unrelated indictment and then, i. addition, only

after the original charges against Isernio had been alto-

gether concluded—which further proceedings took over

nine months following the April 10, 2003 mistrial to con-

clude.

Clearly, to find such a “waiver” of a statutory right

under these circumstances goes contrary to the very notion

of what the concept of waiver means in our law. See, e.g.,

New York v. Hill, 528 U.S. at 114-15, and cases there cited.

3 In that letter, defense counsel stated:

“Taken together with the allocutions [of the co-defendants] and

our appraisal of all the evidence in the case this document [Gov.

Exh. 597] demonstrates the good faith nature of our effort to

assert, aS we must, that there was a conspiracy to bribe McDon-

ald but that knowledge of the conspiracy was purposefully kept

from Mr. Friemann... We are frankly surprised that the Govern-

ment has not consented to a severance, as our defense would nec- _

essarily jeopardize the fairness and integrity of any conviction the

Government may obtain against Mr. Isernio.”

B. The Harmless Error Issue

1. The Court of Appeals’ holding that “harm-

less” error analysis was applicable to this

case conflicts with the plain language of the

Speedy Trial Act and with what the legislative

history reveals was the intention of Congress

in enacting it.

In Zedner, the Second Circuit conceded that the Speedy

Trial Act provides on its face for only one sanction: “the

indictment shall be dismissed.” See 401 F.3d at 42, 47. How-

ever, the Court of Appeals drew upon Federal Rule of Crim-

inal Procedure 52(a) and Section 2111 of Title 28, United

States Code, to conclude that any violation of the Act

which had there occurred should be considered harmless

and ignored. This was, we submit, an altogether unwarrant-

ed ruling.

In fact, Rule 52 (a) and 28 U.S.C. §2111 both predated

the 1974 enactment of the Speedy Trial Act. And, there is

nothing in either the language or the legislative history of

the Speedy Trial Act, which indicates that the dismissal

sanction was to be subject to “harmless error.” Rather, the

language_and history of the Act, beth as originally enacted

and as later amended, reveal that this legislation represent-

ed Congress’ response to what it perceived to be a persistent

problem of the government’s failure to accord defendants

prompt trials.

In United States v. Taylor, 487 U.S. 326 (1988), this

Court observed that the Speedy Trial Act “admits no ambi-

guity in its requirement that when [a violation of the Act]

has been demonstrated, ‘the information or indictment

shall be dismissed on motion of the defendant.’” 487 U.S.

at 332, emphasis added, quoting 18 U.S.C. §3162(a)(2);

see also 487 U.S. at 34) n.12. In Zaylor, the narrow issues

before the Court had to do with “the bounds of a district

court’s discretion to choose between dismissal with and

without prejudice, as a remedy for a violation of the

[Act].” Id. at 326-27. But, that decision’s review and treat-

ment of the Speedy Trial Act’s language and legislative

history is also most pertinent in this case, in that there, in

discussing how the Act’s “remedy provision,” § 3162(a){2),

should be construed and applied, this Court specifically

discussed how the issue of “prejudice” to a defendant

should be considered, along with the factors set forth in

§ 3162(a)(2), at the remedy stage. Id., at 341. It gave no

indication that the statutory “remedy” of dismissal could

be avoided by either a district court or a court of appeals’

resort to “harmless error” analysis; rather, the clear import

of Taylor was that the issue of “prejudice” was to be

addressed only in the context of the court’s deciding whether

the dismissal of charges against the defendant should be

with or without prejudice.

Further, in 7aylor Justice Blackmun pointed out that

“courts are not free to exercise their equitable powers in

fashioning an appropriate remedy” for a violation of the

Act (487 U.S., at 342) and that:

Dismissal without prejudice is not a toothless

sanction: it forces the Government to obtain a

new indictment if it decides to reprosecute, and it

exposes the prosecution to dismissal! on-statute of

limitations grounds. Given the burdens borne by

the prosecution and the effect of delay on the

Government’s ability to meet those burdens, sub-

Inshort, Zaylor plainly indicated that the only “remedy”

provided in the Act for a violation of that statute is the

sanction set forth in section 3162(a)(2), that is, mandatory

dismissal. Accord United States v. Janik, 723 F.2d 537 (7th

Cir.

stantial delay well may make reprosecution, even

if permitted, unlikely.

1983) (Posner, J.).4

2. The District Court’s failure to dismiss the

charges against petitioner was not “harmless

error.” -

In this case the Second Circuit stated:

Even if we assume arguendo that Friemann’s

speedy trial rights were violated, the District Court

properly denied Friemann’s motion because any

such error was harmless. See Zedner, F.3d at 47-

58; Gambino, 59 F.3d at 362-63. Had the District

Court dismissed the indictment on speedy trial

grounds, it would have done so “without preju-

dice”-because the charged offenses were serious,

the Government acted in good faith, the defen-

dant benefitted significantly from delays, and

Friemann failed repeatedly to raise any speedy

trial concerns. In such circumstances, the Gov-

ernment could (and likely would) have re-indici-

ed Friemann, leaving Friemann’s legal position

unchanged.

In Zedner the Second Circuit recognized that what it was doing

was contrary to Janik, which it dismissed with simply a “But see... .”

See 401 F.3d at 46

By equating that “likely” without-prejudice dismissal of

an indictment with harmless error, the Court of Appeals

has drawn the teeth of the Speedy Trial Act and erred as a

matter of law. As this Court recognized in Jaylor, even a

dismissal without prejudice is “not a toothless sanction”

487 U.S. at 342. It requires the government to reindict the

defendant if it would continue to prosecute him-——which in

this case plainly would not have been as assured, as the

Court of Appeals assumed.

If the United States Attorney’s office had desired to re-

present these charges to a new grand jury, it would first

have had to secure authorization of the Tax Division of the

Department of Justice. See United States Attorney Manual

§ 6-4.010, www.usdoj/usao/eousa/foia; 28 CFR §0.70.

Second, the prosecution would have had to point out to the

Tax Division the evidence exonerating petitioner that was

revealed at the first Isernio trial. In addition, petitioner’s

counsel would have had the opportunity to present these

same considerations to the Tax Division to attempt to per-

suade it not to approve further prosecution. See U.S. Attor-

ney Manual 6-4.214, supra.

Furthermore, even assuming that the District Court had

dismissed without prejudice, the question of whether or

not to re-present this matter to the grand jury would have

been subject to prosecutorial discretion. At the time of the

District Court’s denial, of the Speedy Trial motion, Febru-

ary 26, 2004, there existed Séveral new factors that would

have had to be weighed against seeking \to reindict peti-

tioner: (1) Isernio, the principal target of the BPA prosecu-

tion, had already been convicted in two separate cases;

(2) exonerating testimony had been offered by prosecution

witnesses at the Isernio trial, and it related to this petition-

er who had been acquitted on seven of the eight counts

contained in S-4; and (3) petitioner was but a minor,

peripheral defendant in the BPA conspiracy which was the

subject of “Mr. Isernio and Mr. Agoglia’s trial.”

The Court of Appeals relied upon the October 15, 2003

return of S-4 against petitioner as an indication that re-pre-

sentment was inevitable (Sa). However, S-4 was returned

before Isernio’s convictions had been obtained in January

2004 (ASa). Also, an order of dismissal without prejudice

with respect to petitioner might have offered the govern-

ment a good public excuse for not pursuing petitioner any

further.

* * * *

The importance of the issues presented by this petition

for the administration of federal criminal justice plainly

requires guidance by this Court. The Circuits Courts are

divided -on the waiver issue, and the Second Circuit’s

application to this case of harmless-error analysis has the

potential to emasculate the Speedy Trial Act, and re-write

it, thereby depriving it of the effect intended by Congress.

As this Court only very recently made clear, the first place

to begin in attempting to determine the meaning of any

statute is with the words of that statute. See United States

v. Olson, 546 U.S. __. (November 8, 2005), No. 04-759,

Slip Op. At p.3 (in interpreting the Federal Tort Claims

Act, court states, ““We here interpret these words to mean

what they say...”). What we have here argued here, gives

effect to the words of the Speedy Trial Act and to what

Congress intended by its adoption of this legislation. Con-

gress provided that if there is a speedy trial violation “the

indictment shall be dismissed” 18 U.S.C. §3162 (a)(2)

(emphasis added). The 1974 House Report on the then

proposed Speedy Trial Act, House Report No. 93-1508,

quoted remarks by the late Chief Justice Rehnquist, who at

the time had appeared as Assistant Attorney General,

before the Senate Subcommittee, stating:

Therefore, we are unwilling to categorically oppose

the mandatory dismissal provision. For it well

may be, Mr. Chairman, that the whole system of

Federal Justice needs to be shaken by the scruff

of its neck, and brought up short with a relative-

ly peremptory instruction to prosecutors, defense

counsel and judges alike that criminal cases must

be tried within a particular period of time. That is

certainly the import of the mandatory provisions

of your bill.”

1974 U.S. Code Cong. and Adm. News, pp. 7413-14.

The “mandatory dismissal provision” remains in the Speedy

Trial Act to this day. Its language remains the same lan- ~

guage that Justice Rehnquist had read. What we here urge

is that this language must be given effect.

CONCLUSION

For the foregoing reasons this Court should grant the

writ of certiorari to review petitioner’s conviction.

Dated: November 22, 2005

Respectfully submitted,

JOSEPH W. RYAN, JR.

Attorney for Petitioner

Counsel of Record

1425 EAB Plaza

East Tower, 15th Floor

Uniondale, New York 11556-1425

316-663-6515

Of Counsel:

Joseph W. Ryan, Jr.

L. Kevin Sheridan

APPENDIX

10.

TABLE OF CONTENTS

Page

. Opinion of the United States

SO ID, Sf eaidcaw cay tase sccedheenouwas la

. Order of the United States Court of Appeals

Denying Petition for Rehearing and Suggestion

for Rehearing En Banc,

dated September 6, 2005............cscceseces 8a

STINE aicsdedscevivisnawchoscesdiunnes 10a

Order Granting Severance,

ee I 0 UO i caidcovcsavsvecondecses 26a

. Letter Application for a Severance,

GROG FOUN 16, DOGS i ccs va cvcccvecccdvcnes 29a

Letter of Consent to Severance, |

PUG Tas NS a dian casa bon cadsiasenscs 32a

Letter Requesting Conference,

ee Se Bt I i cas cad cdessaewons 37a

. Transcript of Conference,

Be PRS ere ere eee 38a

Speedy Trial Motion,

dated September 18, 2003 ..........c.cecceeses 45a

Transcript of Isernio Conference,

Gated September 26, 2003 ......ccccscccecvves 90a

11.

12.

13.

Decision Denying Speedy Trial Motion,

dated February 26, 2004 ..............cccceees

Transcript of Conference,

GRE DIG Bs Pc vido twhocdaconcdovacess

Judgment of Conviction,

Gated February 29, ZO06 .... ccccccccccccccces

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

THIS SUMMARY ORDER WILL NOT BE PUBLISHED

IN THE FEDERAL REPORTER AND MAY NOT BE

CITED AS PRECEDENTIAL AUTHORITY TO THIS OR

ANY OTHER COURT, BUT MAY BE CALLED TO THE

ATTENTION OF THIS OR ANY OTHER COURT IN A

SUBSEQUENT STAGE OF THIS CASE, IN A RELATED

CASE, OR IN ANY CASE FOR PURPOSES OF COL-

LATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall

United States Courthouse, at Foley Square, in the City of

New York, on the 17th day of June, two thousand and five.

No. 04-5506-cr

PRESENT:

JosE A. CABRANES,

REENA RAGGI,

Circuit Judges,

LEONARD B. SAND,

Judge. *

The Honorable Leonard B. Sand, United States District Judge

for the Southern District of New York, sitting by designation.

UNITED STATES OF AMERICA,

Appellee,

ROBERT F. FRIEMANN

Defendant-Appellant,

ROBERT J. MCDONALD, ALBERT E. ISERNIO,

WILLIAM M. BLAKE, JOHN R. BLAKE, DAVID J. BLAKE

APPEARING FOR

APPELLANT:

APPEARING FOR

APPELLEE:

and WILLIAM PATTISON,

Defendants.

JOSEPH W. RYAN, JR. (L. Kevin

Sheridan, of counsel), Uniondale,

EVAN WILLIAMS, Assistant United

States Attorney (David C. James,

Assistant United States Attorney,

of counsel; Roslynn R. Mauskopf,

United States Attorney for the

Eastern District of New York, on

the brief), United States Attorney’s

Office for the Eastern District of

New York, New York, NY

SUMMARY ORDER

Appeal from a judgment of the United States District

Court for the Eastern District of New York (Joanne Sey-

bert, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the

judgment of the District Court is AFFIRMED.

Defendant-appellant Robert F. Friemann appeals his

judgment of conviction, entered by the United States Dis-

trict Court for the Eastern District of New York on Octo-

ber 1, 2004, on one count of making a false statement on a

federal tax return in violation of 26 U.S.C. §7206(1).

On appeal, Friemann claims that (1) the District Court

improperly denied his motion for dismissal pursuant to the

Speedy Trial Act, (2) the evidence presented at trial was

not legally sufficient to support his conviction, and (3) the

Government unfairly altered its theory of the case in its

summation.

Friemann first alleges that his rights under the Speedy

Trial Act, 18 U.S.C. §3162, were violated when the Gov-

ernment failed to try him within 70 days of April 10, 2003,

the date on which the District Court declared a mistrial in

the case against Albert E. Isernio, Friemann’s former co-

defendant. On appeal, dispute centers on whether Frie-

mann, by agreeing to delay his trial pending the outcome

of Isernio’s, waived his speedy trial rights for the one year

period following Isernio’s mistrial, even when this event

was apparently not foreseen by either party.

The Speedy Trial Act authorizes district courts to

“exclude[]” time from the prescribed 70-day period for

certain kinds of delays. See 18 U.S.C. §3161(h)(1)-(8).

Apart from these exclusions, defendants generally may not

waive Speedy Trial Act protections because of the public’s

independent interest in prompt criminal trials. United

States v. Gambino, 59 F.3d 353, 360 (2d Cir. 1995). We

permit waiver, however, when delays result from defen-

dants having “request[ed] an adjournment that would serve

the ends of justice.” United Siates v. Zedner, 401 F.3d 36,

45 (2d Cir. 2005).

We review de novo the denial of Friemann’s motion to

dismiss, and we review related factual determinations for

clear error.! On the record before us, we conclude that the

District Court did not err in deciding that “any delay

caused by Isernio’s mistrial ... is directly attributable to

Friemann’s motion to sever.” Here, as in Zedner, the Gov-

ernment was fully prepared to try the defendant—indeed

jury selection was already under way—and the case was

delayed only at Friemann’s request. Further, the District

Court did not err in finding that (1) the adjournment of

Friemann’s trial was designed to promote goals of judicial

efficiency, and (2) this goal could not be attained by pro-

ceeding with Friemann’s trial prior to the ultimate resolu-

tion of Isernio’s case. That Friemann acquiesced in delaying

his trial in this manner is strongly suggested by his failure

to raise any speedy trial objections between June 19, 2003,

when he now alleges that the speedy trid&’Clock” expired,

and September 18, 2003, when he filed this motion.

Even if we assume arguendo that Friemann’s speedy

trial rights were violated, the District Court properly

denied Friemann’s motion because any such error was

harmless. See Zedner, F.3d at 47-48; Gambino, 59 F.3d at

362-63. Had the District Court dismissed the indictment on

speedy trial grounds, it would have done so “without prej-

udice” because the charged offenses were serious, the

Government acted in good faith, the defendant benefitted

significantly from delays, and Friemann failed repeatedly

to raise any speedy trial concerns. In such circumstances,

the Government could (and likely would) have re-indicted

| United States v. Gaskin, 364 F.3d 438, 450 (2d Cir. 2004).

Friemann,* leaving Friemann’s legal position unchanged.

On nearly identical facts in Gambino, we held that the Dis-

trict Court’s denial of a motion to dismiss on speedy trial

grounds constituted harmless error, and we follow that

holding here. 59 F.3d at 363.

Friemann’s second argument on appeal—that the evi-

dence at trial was legally insufficient to support his con-

viction—is similarly without merit. Although we review

de novo a district court’s ruling regarding sufficiency of

the evidence, a defendant challenging his conviction on

this basis “bears a heavy burden.” United States v. Henry,

325 F.3d 93, 103 (2d Cir. 2003). “In assessing a factual

sufficiency challenge, we review the evidence in its total-

ity, and in the light most favorable to the prosecution,

mindful that the task of choosing among permissible com-

peting inferences is for the jury, not a reviewing court.”

United States v. Salmonese, 352 F.3d 608, 618 (2d Cir.

2003) (citations omitted). We will uphold a jury’s verdict

if a “rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jack-

son v. Virginia, 443 U.S. 307, 319 (1979).

The record contains sufficient evidence, both direct and

circumstantial, from which a rational factfinder could infer

beyond a reasonable doubt that Friemann wilfully and

knowingly made materially false statements on his tax

returns concerning business deductions for S&F Consult-

ing (“S&F”). When faced with motions to set aside the ver-

dict, or in the alternative, grant a new trial, pursuant to

Rules 29 and 33 of the Federal Rules of Criminal! Proce-

In fact, Friemann was indicted on a fourth superseding indict-

ment on October 15, 2003, nearly one month after he raised his speedy

trial motion, which was directed to the second superseding indictment

of March 27, 2002.

dure, the District Court properly concluded that the testi-

mony of multiple witnesses—including the defendant’s

nominal partner—supported the jury’s conclusion that S&F

never performed any consulting work and therefore could

not have legitimately incurred the reported business

expenses.

Friemann raises two specific objections relating to his

insufficiency claim. First, he asserts that the District Court

erred in finding that Ruth Schneider’s testimony was suf-

ficient to support his conviction. This claim fails because

Schneider’s remarks, when taken in conjunction with other

testimony such as that of Agent Bishop and with Frie-

mann’s own admissions, suggest that S&F was a “shell”

entity with no business operations or expenses.

Second, Friemann asserts that the jury’s acquittal on the

remaining counts charging money laundering undermines

his conviction for false tax reporting. The District Court

properly rejected this argument on the basis that the jury

could have concluded that Friemann falsely reported

expenses for S&F regardless of whether it believed that

Friemann knew about the bribery and money laundering

activities of his colleagues. Finally, defendant’s reliance on

United States v. Coveney, 995 F.2d 578, 592-94 (Sth Cir.

1993), is unavailing because there it was undisputed that

some legitimate business had been conducted, and the court

held that the jury possessed insufficient evidence to conclude

that reported deductions were fraudulent. Here, by contrast,

the record suggests that S&F conducted no legitimate busi-

ness and therefore any expenses claimed on its behalf were

necessarily fraudulent and falsely reported.

Finally, defendant claims that the District Court improp-

erly denied his motion for a new trial pursuant to Federal

Rule of Criminal Procedure 33. Specifically, Friemann

contends that the Government unfairly “ambush[ed]”

the defense by alleging for the first time in summation

that Friemann’s falsely claimed business deductions

were motivated by a “personal enrichment theft

scheme”—namely, his desire to finance home furnishings.

We review Rule 33 determinations “with great caution,”

United States v. DiPaolo, 835 F.2d 46, 49 (2d Cir. 1987)

(internal quotation marks omitted), upholding district

court rulings “unless there has been an abuse of discre-

tion.” United States v. Underwood, 932 F.2d 1049, 1052

(2d Cir. 1991). No such abuse or error of law, see Zervos

v. Verizon New York, Inc., 252 F.3d 163, 167-69 (2d Cir.

2001), has taken place in this instance.

The District Court properly concluded that the Govern-

ment neither misstated the evidence, constructively amended

the grand jury indictment, nor impermissibly broadened its

theory over the course of the trial. In any event, any unfair-

ness was cured by Friemann’s opportunity to cross-exam-

ine pivotal witnesses and by the District Court’s careful

jury instruction that opening and closing statements were

not to be considered as evidence.

x* * * *

We have considered each of Friemann’s arguments and

have found them to be without merit. The judgment of the

District Court is therefore AFFIRMED.

FOR THE COURT,

Roseann B. MacKechnie, Clerk of the Court

By:

UNITED STATES COURT OF APPEALS

E FOR THE SECOND CIRCUIT

THURGOOD MARSHALL U.S. COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

Roseann B. MacKechnie

CLERK

Date: 9/2/05

Docket Number: 04-5506-cr

Short Title: USA v. McDonald (Friemann)

DC Docket Number: | 01-cr-1168

DC: EDNY (CENTRAL ISLIP)

DC Judge: Honorable Joanne Seybert

—~»

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall

United States Courthouse, Foley Square, in the City of

New York, on the 6th day of September, two thousand five.

No. 04-5506-cr

Filed: September 6, 2005

Present:

Hon- José A. Cabranes,

Hon. Renna Raggi,

Circuit Judges,

Hon. Leonard B. Sand,

District Judge.

USA,

ROBERT F. FRIEMANN.

ORDER

A petition for panel rehearing and a petition for rehear-

ing en banc having been fi:ed herein by the appellant,

Robert F. Friemann. Upon consideration by the panel that

decided the appeal, it is Ordered that said petition for

rehearing is DENIED.

It is further noted that the petition for rehearing en banc

has been transmitted to the judges for the court in regular

active service and to any other judge that heard the appeal

and that no such judge has requested that a vote be taken

thereon.

For the Court,

Roseann B. MacKechnie, Clerk

By: [ILLEGIBLE] HELLER

Motion Staff Attorney

10a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Cr. No. 0/ CR 1168 (S-4) (JS)

(T. 18, U.S.C., §§ 1956(h), 981(a)(1), 982(b), 2 and

3551 et seq.; T. 26, U.S.C. §§ 7206(1) and 7206(2))

UNITED STATES OF AMERICA

—against—

ROBERT F. FRIEMANN,

Defendant.

THE GRAND JURY CHARGES:

INTRODUCTION

At all times relevant to this Superseding indictment,

unless otherwise indicated:

I. The Defendant

1. The defendant ROBERT F. FRIEMANN was a certi-

fied public accountant and a member of Albrecht, Vig-

giano, Zureck & Co., P.C. (“AVZ”), a certified public

accounting firm located in Hauppauge, New York.

lla

II. Benefit Plan Administrators

2. Benefit Plan Administrators, Inc. (“BPA”) was a New

York corporation, located in Melville, New York, which

provided services to employers as a third-party adminis-

trator of employee health benefits through self-insurance

plans. Under such plans, rather than paying premiums to

insurance companies, employers assumed full responsibil-

ity for the cost of the health insurance claims submitted by

individuals covered by the plan and paid fees to third-party

administrators, such as BPA, which reviewed, processed

and paid claims with the employers’ funds. Albert E.

Isernio was, at various times chief executive officer, pres-

ident and chairman of BPA.

Ill. Health Care Benefits for Employees of Nassau

County

3. Until approximately October 1996, the County of Nas-

sau (the “County”) provided health care benefits to its

active and retired employees and their dependents through

the New York State Health Insurance Program (“NYSHIP”).

NYSHIP was a premium-based, fully-insured, health

insurance program administered by the Department of

Civil Service of the State of New York (the “State”). The

County paid premiums to NYSHIP which, together with its

insurance carriers, processed and paid health insurance

claims submitted by, or on behalf of, the County’s active

and retired employees and their dependents.

4. From 1995 until his retirement in October 1997,

Robert J. McDonald, the Chief Deputy County Executive,

served as chairperson of a committee composed of County

employees who sought cost savings by exploring alterna-

tives to providing health care benefit coverage through

12a

NYSHIP (the “Committee”). As Chief Deputy County

Executive, McDonald owed the County and its citizens a

duty of honest services, and was prohibited from receiving

any secret payments in connection with County business.

IV. The First BPA Contract

5. In 1995, McDonald caused a Request For Proposals

(“RFP”) to be issued, which invited companies to submit

proposals for health care insurance coverage plans for the

County’s Medicare eligible-retired employees (“MERs”)

and which specified that no commissions be paid in con-

nection with the awarding of any contract by the County.

6. In February 1996, Isernio prepared and submitted a

proposal which offered a self-insured plan to be adminis-

tered by BPA (the “First BPA Proposal”). Although BPA

agreed to comply with the RFP’s prohibition against com-

missions, Isernio had agreed, if the contract was awarded

to BPA, to pay commissions to The William M. Blake

Agency, Inc. (“WMBA”), an insurance brokerage co-

owned by William M. Blake.

7. On or about February 26, 1996, Ernst & Young

(“E&Y”), a certified public accounting firm hired by the

County, reported to McDonald that none of the proposals

submitted, including the First BPA Proposal, guaranteed a

reduction in the County’s costs in providing health care

coverage to the MER. The County continued NYSHIP cov-

erage of the MER.

8. In May 1996, after the First BPA Proposal had been

rejected, Isernio, William M. Blake, an insurance broker,

and Herbert Schneider, a retired businessman, agreed to

offer a bribe to McDonald in return for helping BPA win

the award of the contract to administer a health plan for the

}3a -

MER (the “MER Contract”). Schneider offered McDonald

a bribe of $50,000 to ensure that BPA received the MER

Contract. Although McDonald declined to accept this

bribe, he did not report this illegal offer to County offi-

cials, nor did McDonald take any steps to disqualify BPA

from consideration by the County as a potential provider

of services.

9. For his efforts, Isernio, William M. Blake and

Schneider agreed that Schneider would receive a portion

of the County-prohibited commissions that Isernio agreed

to pay to WMBA if BPA obtained the contract. Schneider

directed that his portion of the commissions be paid to his

wife.

10. On or about September 23, 1996, the County award-

ed BPA a 24-month contract to administer a self-insured

health care plan for the MER for which the County would

pay BPA approximately $4.5 million (the “First BPA Con-

tract”).

11. In December 1996, William M. Blake and John R.

Blake, his brother and a WMBA co-owner, met with the

defendant ROBERT F. FRIEMANN at AVZ. They agreed

that, in preparing federal income tax returns for DJB Com-

pany, Inc. (“DJB”), a shell entity set up to receive the ille-

gal commissions from BPA, AVZ would classify funds

paid by BPA to DJB as “commissions,” payments to Ruth

Schneider from DJB as “consulting fees” and funds paid

by DJB to WMBA as “administrative or management

fees.”

12. From December 1996 to February 1997, Schneider

received County-prohibited commissions totaling $25,000

through three DJB checks made payable to Schneider’s

wife.

l4a

V. The Second BPA Contract

13. In July 1997, McDonald caused an RFP to be

issued, which invited companies to submit proposals to the

County to provide health care coverage for the County’s

active employees and non-Medicare eligible retired

employees and their dependents [sic] (the “Second RFP”).

14. Before the issuance of the Second RFP, Isernio and

William M. Blake offered McDonald a bribe of $150,000

in return for his efforts in helping BPA win award of a

contract to administer a health plan for all County employ-

ees and retirees. McDonald accepted this offer. Isernio,

William M. Blake and McDonald agreed that the bribe

would be paid to McDonald after he retired from his Coun-

ty position.

15. In August 1997, Isernio, with the assistance of BPA

employees, prepared and submitted a proposal which

offered a self-insured plan for all active and retired Coun-

ty employees, to be administered by BPA (the “Second

BPA Proposal”), with a guarantee that the County would

save between $15 and $18 million. In the proposal, Isernio

falsely represented to the County that, in apparent compli-

ance with the Second RFP’s prohibition, “no broker com-

missions would be paid [by BPA] and no broker

relationships would be recognized [by BPA].”

16. Schneider died in April 1997. In August 1997, the

defendant ROBERT F. FRIEMANN demanded from

William M. Blake a portion of the commissions that

Schneider had been expected to receive from Isernio upon

BPA’s award of a contract by the County.

15a

17. On or about August 22, 1997, McDonald’s commit-

tee recommended to the County Executive that the County

enter into a contract with BPA.

18. On September 11, 1997, the County awarded BPA a

39-month contract to administer a self-insured health care

plan for all of the County’s active and retired employees,

including the MER, for which the County was to pay BPA

approximately $26 million in administration fees.

19. On or about September 16, 1997, Isernio directed

William M. Blake to pay McDonald and Schneider’s wife

from the commissions BPA would pay to DJB.

20. In October 1997, in order to receive the commis-

sions from DJB, the defendant ROBERT F. FRIEMANN

established a shell entity, S&F Consulting Associates

(“S&F”), and opened a bank account in S&F’s name.

21. In October 1997, the defendant ROBERT F. FRIE-

MANN provided a letter to William M. Blake, purportedly

executed by Schneider’s wife, in which she directed that

the portion of the commissions payable to Herbert Schnei-

der be paid to S&F.

22. On or about November 26, 1997, in order to conceal

the transfer of the bribe payments and illegal commissions

from BPA, Isernio signed an agreement with David J.

Blake, the son of William M. Blake and a WMBA

employee, under which BPA would pay commissions to

DJB of $98,611 per month from October 3, 1997 through

September 2000. In the agreement Isernio falsely labeled

the commissions as “consulting fees.”

23. In December 1997, the defendant ROBERT F. FRIE-

MANN met with William M. Blake, John R. Blake and

l6a

David J. Blake and devised a plan to distribute the com-

mission payments from BPA.

24. From November 1996 to December 1998, Isernio

caused BPA to pay to DJB a total of $2,074,887.

25. From December 1997 to December 1998, the defen-

dant ROBERT F. FRIEMANN received checks on a

monthly basis from DJB, made payable to S&F, and

deposited and caused them to be deposited into S&F’s

bank account. Thereafter, FRIEMANN drew checks on the

S&F account, which totaled approximately $216,976,

made payable to himself and Schneider’s wife, and caused

these checks to be deposited into their respective bank

accounts.

26. In late 1998, the defendant ROBERT F. FRIEMANN

directed William M. Blake to lie to authorities if ques-

tioned about the payments from DJB to Schneider and

S&F. FRIEMANN also gave Blake a document containing

false information, which Blake was supposed to provide to

authorities in an effort to mislead them about the true

nature of the payments.

27. In order to conceal the true nature of the commis-

sion payments from BPA, the defendant ROBERT F. FRIE-

MANN prepared and caused to be prepared federal income

tax returns for Herbert Schneider and his wife, S&F, DJB

and- WMBA for the calendar years 1996, 1997 and 1998.

These returns contained numerous false statements,

including, but not limited to, falsely identifying the com-

missions aS managing and consulting fees; falsely listing

Schneider’s wife as a consultant; falsely claiming business

deductions for Schneider’s wife; and falsely claiming busi-

ness deductions for S&F.

17a

28. The County did not realize any savings by provid-

ing health care benefits through BPA, nor did the County

or any County official approve or knew about the pay-

ments to McDonald. Indeed, the County paid approximate-

ly $70 million more under the BPA plans than it would

have if the County had remained with NYSHIP. Before it

terminated its relationship with BPA and resumed

NYSHIP coverage, the County paid BPA more than $12

million.

COUNT ONE

(Money Laundering)

29. The allegations contained in paragraphs | through

28 are realleged and incorporated as if set_forth fully in

this paragraph.

30. On or about and between January |, 1996 and April

30, 1999, both dates being approximate and inclusive,

within the Eastern District of New York and elsewhere, the

defendant ROBERT F. FRIEMANN, together with others,

did knowingly and intentionally conspire to conduct finan-

cial transactions affecting interstate commerce, knowing

that the property involved in such financiai transactions

represented the proceeds of some form of unlawful activi-

ty, and which property did in fact involve the proceeds of

specified unlawful activity, to wit: mail fraud, in violation

of Title 18, United States Code, Sections 1341 and 1346,

(i) with the intent to promote the carrying on of such spec-

ified unlawful activity; and (ii) knowing that the transac-

tions were designed in whole and in part to conceal and

disguise the nature, the location, the source, the ownership

and the control of the proceeds of the specified unlawful

18a

activity, in violation of Title 18, United States Code, Sec-

tions 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i).

(Title 18, United States Code, Sections 1956(h) and

3551 et seq.)

COUNT TWO

(False 1996 Schneider Return)

31. The allegations contained in paragraphs | through

28 are realleged and incorporated as if fully set forth in

this paragraph.

32. On or about and between January 1, 1997 and April

15, 1997, both dates being approximate and inclusive, with-

in the Eastern District of New York, the defendant ROBERT

F. FRIEMANN knowingly and willfully aided and assisted

to, and procured, counseled, and advised the preparation

and presentation under, and in connection with a matter~

arising under the Internal Revenue laws, of returns, claims

and other documents, to wit: a U.S. Individual Income Tax

Return, Form 1040, attaching Schedule Cs, for Herbert

Schneider and his wife for the tax year ending December

31, 1996, which was filed with the Internal Revenue Ser-

vice (“IRS”) Service Center in Holtsville, New York,

which tax return was false and fraudulent as to a material

matter, in that the return stated that Schneider’s wife was

in the business of consulting and that she had earned

income and incurred expenses of $12,500 and $6,426,

respectively, in conducting that business when, as FRIE-

MANN well knew and believed, Schneider’s wife was not

in the business of consulting and did not earn such income

and incur such expenses in conducting that business, but

instead received the $12,500 as a portion of the commis-

sions from DJB.

19a

(Title 26, United States Code, Section 7206(2); Title 18,

United States Code, Sections 3551 et seq.)

COUNT THREE

(False 1997 Schneider Return)

33. The allegations contained in paragraphs | through

28 are realleged and incorporated as if fully set forth in

this paragraph.

34. On or about and between January 1, 1998 and April

15, 1998, both dates being approximate and inclusive, with-

in the Eastern District of New York, the defendant ROBERT

F. FRIEMANN knowingly and willfully aided and assisted

to, and procured, counseled, and advised the preparation

and presentation under, and in connection with a matter

arising under the Interna! Revenue laws, of returns, claims

and other documents, to wit: a U.S. Individual Income Tax

Return, Form 1040, attaching Schedule Cs, for Herbert

Schneider and his wife for the tax year ending December

31, 1997, which was filed with the IRS Service Center in

Holtsville, New York, which tax return was fraudulent and

false as to a material matter, in that the return listed

Schneider’s wife’s occupation as a consultant and that she

received $37,466 from her “material participation” in the

business of S&F when, as FRIEMANN well knew and

believed, Schneider’s wife was not a consultant and the

$37,466 she received was not for material participation in

the business of S&F, but instead represented a portion of

the commissions from DJB.

(Title 26, United States Code, Section 7206(2); Title 18,

United States Code, Sections 355i ef seq.)

20a

COUNT FOUR

(False 1997 S&F Return)

35. The allegations contained in paragraphs | through

28 are realleged and incorporated as if fully set forth in

this paragraph.

36. On or about and between January |, 1998 and April

15, 1998, both dates being approximate and inclusive, with-

in the Eastern District of New York, the defendant ROBERT

F. FRIEMANN knowingly and willfully made and sub-

scribed a U.S. Partnership Return of Income, Form 1065,

for S&F, for the tax year ending December 31, 1997,

which was verified by a written declaration that it was

made under the penalties of perjury, and which was filed

with the IRS Service Center in Holtsville, New York,

which return he did not believe to be true and correct as to

every material matter, in that the return stated that the

principal business activity of S&F was consulting, S&F

received $87,500 in gross receipts or sales as a result of

conducting a consulting business and the return was pre-

pared and signed by a partner of AVZ when, as FRIE-

MANN well! knew and believed, the principal business of

S&F was not consulting, S&F had not received $87,500 as

gross receipts or sales as a result of conducting a consult-

ing business but as a portion of the commissions from

DJB, and the return had not been prepared and signed by a

partner of AVZ.

(Title 26, United States Code, Section 7206(1); Title 18,

United States Code, Sections 3551 e/ seq.)

21a

COUNT FIVE

(False 1998 S&F Return)

37. The allegations contained in paragraphs | through

28 are realleged and incorporated as if fully set forth in

this paragraph.

38. On or about and between January 1, 1999 and April

15, 1999, both dates being approximate and inclusive, with-

in the Eastern District of New York, the defendant ROBERT

F. FRIEMANN knowingly and willfully made and sub-

scribed a U.S. Partnership Return of Income, Form 1065,

for S&F, for the tax year ending December 31, 1998,

which was verified by a written declaration that it was

made under the penalties of perjury, and which was filed

with the IRS Service Center in Holtsville, New York,

which he did not believe to be true and correct as to every

material matter, in that the return stated that the principal

business of S&F was consulting, S&F received $149,125

in gross receipts or sales from its consulting business, S&F

had incurred $11,011 in deductible business expenses in

conducting that business, and the return had been prepared

and signed by a member of AVZ when, as FRIEMANN

well knew and believed, the principal business of S&F was

not consulting, S&F had not received $149,125 as gross

receipts or sales from the conduct of a consulting business

but as a portion of the commissions form [sic] DJB, S&F

had not incurred $11,011 in deductible business expenses

in conducting that business, and the return had not been

prepared and signed by a partner of AVZ.

(Title 26, United States Code, Section 7206(1); Title 18,

United States Code, Sections 3551 et seq.)

22a

COUNT SIX

(False 1996 DJB Return)

39. The allegations contained in paragraphs | through

28 are realleged and incorporated as if fully set forth in

this paragraph.

40. On or about and between January 1, 1997 and March

15, 1997, both dates being approximate and inclusive, with-

in the Eastern District of New York, the defendant ROBERT

F. FRIEMANN knowingly and willfully aided and assisted

in, and procured, counseled, and advised the preparation

and presentation under, and in connection with a matter

arising under the Internal Revenue laws, of returns, claims

and other documents, to wit: a U.S. Income Tax Return for

an S Corporation, Form 1120S, for DJB, for the tax year

ending December 31, 1996, which was filed with the IRS

Service Center in Holtsville, New York, which return was

false and fraudulent as to a material matter, in that the

return stated that DJB paid $12,500 for consulting fees,

and deducted this amount as a business expense, when, as

FRIEMANN well knew and believed, DJB did not pay

these funds for consulting, but instead as part of the com-

missions from BPA, which were not deductible.

(Title 26, United States Code, Section 7206(2); Title 18,

United States Code, Sections 3551 et seq.)

COUNT SEVEN

(False 1997 DJB Return)

41. The allegations contained in paragraphs | through

28 are realleged and incorporated as if fully set forth in

this paragraph.

23a

42. On or about and between January 1, 1998 and March

15, 1998, both dates being approximate and inclusive, with-

in the Eastern District of New York, the defendant ROBERT

F. FRIEMANN knowingly and willfully aided and assisted

in, and procured, counseled, and advised the preparation

and presentation under, and in connection with a matter

arising under the Internal Revenue laws, of returns, claims

and other documents, to wit: a U.S. Income Tax Return for

a [sic] S Corporation, Form 1120S, for DJB, for the tax

year ending December 31, 1997, which was filed with the

IRS Service Center in Holtsville, New York, which return

was false and fraudulent as to a material matter, in that the

return stated that DJB paid $87,500 for consulting fees,

and deducted this amount as a business expense, when, as

FRIEMANN well knew and believed, DJB did not pay

these funds for consulting, but instead as part of the com-

missions from BPA, which were not deductible.

(Title 26, United States Code, Section 7206(2); Title 18,

United States Code, Sections 3551 ef seq.)

COUNT EIGHT

(False 1998 DJB Return)

43. The allegations contained in paragraphs | through

28 are realleged and incorporated as if fully set forth in

this paragraph.

44. On or about and between January |, 1999 and Sep-

tember 20, 1999, both dates being approximate and inclu-

sive, within the Eastern District of New York, the defendant

ROBERT F. FRIEMANN knowingly and willfully aided

and assisted in, and procured, counseled, and advised the

preparation and presentation under, and in connection with

24a

a matter arising under the Internal Revenue laws, of

returns, claims and other documents, to wit: a U.S. Income

Tax Return for an S Corporation, Form 1120S, for DJB, for

the tax year ending December 31, 1998, which was filed

with the IRS Service Center in Holtsville, New York,

which return was false and fraudulent as to a material mat-

ter, in that the return stated that DJB paid $149,125 for

consulting fees, and deducted this amount as a business

expense, when, as FRIEMANN well knew and believed,

DJB did not pay these funds for consulting, but instead as

part of the commissions from BPA, which were not

deductible.

(Title 26, United States Code, Section 7206(2); Title 18,

United States Code, Sections 3551 ef seq.)

CRIMINAL FORFEITURE ALLEGATION

45. Asa result of the offense set forth in Count One, the

defendant ROBERT F. FRIEMANN shall forfeit to the Unit-

ed States, pursuant to Title 18, United States Code, Section

982(a)(1), all right, title and interest in any and all property,

real and personal, involved in such offense and any proper-

ty traceable to such property, including, but not limited to,

(1) all money or other property that was the subject of each

financial transaction that the defendant conspired to conduct

and conducted in violation of Section 1956(h) of Title 18,

United States Code; (2) all commissions, fees and other

property obtained as a result of those violations; and (3) all

property used in any manner or part to commit and to facil-

itate the commission of those violations. The value of the

property to be forfeited is in the approximate amount of

$2,074,887. Forfeiture may include the imposition of a

money judgment against FRIEMANN.

25a

46. If, as a result of any act or omission of the defendant

ROBERT F. FRIEMANN, property described above in para-

graph 45, or any portion thereof,

Cannot be located upon the exercise of due dili-

gence;

Has been transferred or sold to, or deposited with,

a third party;

Has been placed beyond the jurisdiction of the

Court;

Has been substantially diminished in value; or

Has been commingled with other property which

cannot be divided without difficulty the defendant

shall forfeit substitute property, up to the value of

the property described in subparagraphs 46(a)

through 46(e) above, pursuant to Title 21, United

States Code, Section, 853(p), as incorporated by

Title 18, United States Code, Section 982(b).

(Title 18, United States Code, Sections 982(a)(1) and

982(b))

A TRUE BILL

FOREPERSON

ROSLYNN R. MAUSKOPF

UNITED STATES ATTORNEY

EASTERN DISTRICT OF NEW YORK

BY:

[ILLEGIBLE]

ACTING UNITED STATES ATTORNEY

PURSUANT TO 28 C.F.R. 0.131

26a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

01-CR-1168 (JS) (WDW)

Filed: January 15, 2003

UNITED STATES OF AMERICA,

—against—

ROBERT MCDONALD, ef al.,

Appearances:

For United States:

For Defendants:

John R. Blake

David J. Blake

Defendants.

Joseph R. Conway, Esq.

Office of the United States Attorney

Long Island Federal Courthouse

100 Federal Plaza

Central Islip, New York 11722-4438

Thomas J. Fitzpatrick, Esq.

500 Fifth Avenue, 33rd Floor

New York, New York 10110

Henry Putzel, Ill, Esq.

565 Fifth Avenue, 9th Floor

New York, New York 10017

William Pattison

Robert F. Friemann

Robert J. McDonald

William M. Blake

Albert E. Isernio

Michael Agoglia

27a

Francis J. Murray, Esq.

100 Merrick Road, Suite 514 West

Rockville Centre, New York 11570

Joseph W. Ryan, Jr., Esq.

EAB Plaza West Tower, 14th Floor

Uniondale, New York 11556-0120

Kevin Keating, Esq.

666 Old Country Road, Suite 501

Garden City, New York 11530

Robert G. Morvillo, Esq.

Jeremy Hugh Temkin, Esq.

Morvillo, Abramowitz, Grand,

lason & Silberberg, P.C.

565 Fifth Avenue

New York, New York 10017

John R. Wing, Esq.

Weil, Gotshal & Manges, LLP

767 Fifth Avenue

New York, New York 10153

Robert S. Fink, Esq.

William Couzzi, Esq.

Kostelanetz & Fink, LLP

530 Fifth Avenue

New York, New York 10036

28a

ORDER

SEYBERT, J., DISTRICT JUDGE:

Pending before the Court is a motion by Robert Frie-

mann to sever the charges alleged against him from those

against Albert Isernio and Michael Agoglia. The Govern-

ment has consented to such severance provided that Mr.

Friemann be tried in one trial for all counts pending against

him, to which Mr. Friemann has no objection. The charges

alleged against Mr. Friemann are hereby severed from

those against Mr. Isernio and Mr. Agoglia. Mr. Friemann

shall be tried on al! counts presently pending against him

in one trial, to be held subsequent to Mr. Isernio and Mr.

Agoglia’s trial.

SO ORDERED.

By: /s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: Central Islip, New York

January 15, 2003

[STAMP]

COUNSEL IS DIRECTED TO IMMEDIATELY

NOTIFY ALL PARTIES OF THIS ORDER

[By hand]

faxed receipt attached.

29a

[LETTERHEAD]

January 14, 2003

Honorable Joanna Seybert

United States District Judge

United States Courthouse

1034 Federal Plaza

Central Islip, NY 11722

Re: United States v. Robert Friemann, et all.

Docket No. 01-CR-1168-S-2 (JS)

Dear Judge Seybert:

As a follow up to our renewed motion for a severance

made in court yesterday this letter briefly summarizes the

key features of the co-defendant allocutions and other con-

siderations on which the renewed motion is based.

As discussed in court yesterday, there is insufficient evi-

dence of participation by Mr. Friemann in the bribery and

mail fraud phases of the conspiracy charged in Count One

to require that Mr. Friemann undergo trial with co-defen-

dant Albert Isernio, against whom there will be what appears

to be overwhelming proof on the Count One conspiracy.

Neither Michael Blake, Jack Blake nor David Blake, in

each of their sworn under oath allocutions, stated that Mr.

Friemann was in any way responsible for the bribery and

fraud upon Nassau County charged in Count One. Nor did

any of the Blakes’ allocutions assert that Mr. Friemann, in

making the various alleged false financial entries, did so

for the purpose of assisting them in committing the alleged

briberies and fraudulent conduct.

To the contrary, assuming arguendo that Mr. Friemann

had falsified certain financial records, the Blake allocu-

tions present a reason for Mr. Friemann’s actions that is

30a

unrelated to the fraud upon Nassau County, namely, that

Herbert Schneider had advised the Blakes that he wanted

the income he earned on the BPA transaction to be assigned

to his wife, Ruth, to avoid jeopardizing the disability ben-

efits he was then receiving. Mike Blake makes it clear that

in furtherance of Mr. Schneider’s personal objectives—

and not in furtherance of the fraud upon Nassau County—

he prepared a consulting agreement between DJB and Ruth

Schneider and furnished the document to Mr. Friemann

and another unidentified AVZ partner.

The Government’s accusation yesterday that our claim

of antagonistic defenses has been manufactured for the eve

of trial is misguided. As your Honor is aware, the antago-

nism of Mr. Friemann’s and Mr. Isernio’s defenses is based

on the Blakes’ allocutions, which did not occur until

January 3 and 6, 2003. Additional new evidence related to

the Blakes has been furnished to our office as late as this

past weekend, when the Government faxed to us a hand-

written notation alleged to have been made on September

16, 1997 but produced only in connection with Mike Blake’s

plea. This document, now listed as Proposed Trial Exhibit

597, appears to be a contemporaneous entry of an agree-

ment to distribute, out of the additional commissions to be

earned by the Blakes under the 1997 contract, $150,000 to

McDonald and $80,000 to Ruth Schneider. Taken together

with the allocutions and our appraisal of all the evidence in

the case, this document demonstrates the good faith nature

of our effort to assert, as we must, that there was a con-

spiracy to bribe McDonald but that knowledge of that con-

spiracy was purposefully kept from Mr. Friemann.

Approximately 80% of the Government’s proof during

the eight-week trial will be focused on the bribery and

3la

fraud allegations against Mr. Isernio (indeed, less than

10% of the items on the Government’s latest list of

exhibits relate to Mr. Friemann). To require Mr. Friemann

to undergo a two-month trial when there is such a dispari-

ty in proof, no evidentiary link between Mr. Friemann and

the principal Count One conspiracy, and starkly antagonis-

tic defenses between Mr. Friemann and co-defendant

Isernio is, we respectfully submit, fundamentally unfair

and more than ample grounds for severance under Federal

Rule 14. We are frankly surprised that the Government has

not consented to a severance, as our defense would neces-

sarily jeopardize the fairness and integrity of any convic-

tion the Government may obtain against Mr. Isernio.

Thanking you for your attention, I am

Very truly yours,

JWR:dm JOSEPH W. RYAN, JR.

cc: AUSA Joseph R. Conway, Chief

Long Island Division

John R. Wing, Esq.

LL A Ne ee awe

32a

[stamp] [by hand]

U.S. Department of Justice original

U.S. Department of Justice

United States Attorney

Eastern District of New York

United States Attorney's Office

610 Federal Plaza

Central Islip, New York 11722-4454

Filed: January 15, 2003

BY HAND

Honorable Joanna Seybert

United States District Judge

United States Courthouse

1034 Federal Plaza

Central Islip, New York 11722

Re: United States v. Isernio, et al.

riminal k 6 -2

Dear Judge Seybert:

This letter is respectfully submitted in response to the

renewed motion of defendant Robert Friemann for a sever-

ance. The basis of Friemann’s motion is that he will assert

a defense antagonistic to that of defendant Albert Isernio.

For the reasons stated herein, the government consents to

the request to sever Friemann, provided that Friemann

consents to, or tne Court orders, a trial of all counts now

pending against Friemann in a single trial. Alternatively, if

33a

the tax counts against Friemann remain severed from the

remaining counts against him, the government opposes the

application for a severance.

Friemann’s Plan To Blame Isernio Does Not Support A

Severance

In support of his Severance application, Friemann

asserts that “[w]e intend to join the government in its proof

that Mr. Isernio participated in this scheme and we were

victimized by Mr. Isernio, Mr. Blakes, plural, and all the

other schemers who used professionals in this case to carry

out their objective.” January 13, 2003 Tr. at 3; see also let-

ters from Joseph W. Ryan, Jr., Esq. to the Court dated Jan-

uary 13, 2003 and January 14, 2003. Friemann argues that

his defense is antagonistic to that of Isernio and that sev-

erance of his case from Isernio and defendant Michael

Agoglia is required. Isernio has joined in the motion to

have Friemann severed.

In Zafiro v. United States, 506 U.S. 534 (1993), the

Supreme Court rejected the argument that mutually antag-

onistic defenses require severance. The Court held that

severance should be granted “only if there is a serious risk

that a joint trial would compromise a specific trial right of

one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence.” /d. at 539.

The Second Circuit has recognized that, after Zafiro, the

circumstances under which severance is required for

defendants who assert that a co-defendant ts the real cul-

prit are rare. See United States v. Diaz, 176 F.3d 52, 103-

04 (2d Cir. 1999) (severance not required where defendant

testified that co-defendant committed murder and co-

defendant testified that defendant attempted to murder

him); United States v. Haynes, 16 F.3d 29, 31-32 (2d Cir.

34a

1994) (severance not required where defendant implicated

by testimony of co-defendant); United States v. Harwood,

998 F.2d 91, 95-96 (2d Cir. 1993) (severance not required

where each defendant accused the otherof placing LSD in

van).

Friemann’s defense amounts to no more than an argu-

ment that he had no knowledge of the bribery, fraud and

money laundering offense which the government will

prove. This does not amount to a defense antagonistic to

Isernio, as an antagonistic defense requires that “accept-

ance of one party’s defense would tend to preclude the

acquittal of [the] other.” United States v. Salameh, \52

F.3d 88, 116 (2d Cir. 1998) (citations omitted). The jury in

this case would be able to accept Friemann’s defense, that

he had no knowledge of any criminal activity, and still

acquit Isernio vased upon any defense he may reasonably

be expected to raise.

Friemann’s application also does not present any of the

circumstances described by the Supreme Court in Zafiro as

warranting severance, such as “when evidence that the jury

should not consider against a defendant and that would not

be admissible if a defendant were tried alone is admitted

against a co-defendant.” /d. at 539. Friemann does not

assert that the evidence the government will present will

change in any way because of his defense, or that he will

present any additional evidence in support of the bribery,

fraud and money laundering charges. In any event, the

Supreme Court counseled in Zafiro that, even if there were

any prejudice to one defendant because of a co-defendant’s

defense, “less drastic measures, such as limiting instruc-

tions, often will suffice to cure any risk of prejudice.” 506

U.S. at 539.

For these reasons, severance is not required.

35a

The Government Consents To Severance If There Is One

Trial Of All Charges Against Friemann

As described above, a severance of the charges against

Friemann is not warranted under Supreme Court and Sec-

ond Circuit precedent. Nevertheless, the government is

mindful of the fact that there will be a second trial against

Friemann in order to try the tax charges against him, as

they have been severed by the Court. Moreover, in order to

understand the tax charges at a second trial, the govern-

ment will be required to again present to the jury the evi-

dence supporting the bribery, fraud and money laundering

conspiracy charges. Thus, the trial of the tax counts against

Friemann will not be lengthened by inclusion of the

bribery, fraud and money laundering charges against him.

Furthermore, a severance of Friemann as proposed by the

government would shorten the trial against Isernio and

Agoglia and reduce potential bases of appeal by all defen-

dants. ;

However, it would be wasteful of the Court’s resources

and unduly burdensome on the government for the Court

to try this case three times, once against Isernio and

Agoglia, a second time against Friemann on the bribery,

fraud and money laundering charges, and a third time

against Friemann on the tax charges. The government

opposes any severance which would yield this result.

For the reasons stated above, in the event Friemann con-

sents to, or the Court orders, triai of all counts against

Friemann in a single trial, the government consents to

Friemann’s application for a severance. Alternatively, if

Friemann does not consent, and the court declines to order,

a single trial of all counts against Friemann, the govern-

36a

ment opposes the request for a severance for the reasons

stated above.

Thank you for your consideration of this matter.

Respectfully submitted,

ROSLYNN R. MAUSKOPF

United States Attorney

By: /s/ JOSEPH R. CONWAY

Joseph R. Conway

Assistant U.S. Attorney

By: /s/ MICHAEL CORNACCHIA

Michael Cornacchia

Assistant U.S. Attorney

By: /s/ KEVIN P. MULRY

Kevin P. Mulry

Assistant U.S. Attorney

cc: John R. Wing, Esq. (by fax)

Joseph W. Ryan, Jr., Esq. (by fax)

Robert Fink, Esq. (by fax)

Clerk of the Court (JS)

37a

{ LETTERHEAD]

BY FACSI N IL

March18, 2003

Honorable Joanna Seybert

United States District Judge

United States Courthouse

- 1034 Federal Plaza

Central Islip, NY 11722

Re: United States v. Robert Friemann, et al.

Docket No. 01-CR-1168-S-2 (JS)

Dear Judge Seybert:

This will confirm our request for a Status Conference

for the trial of Robert Friemann, as soon as the /sernio

trial has been concluded.

Thanking you for your attention, | am

Very truly yours,

JWR:dm JOSEPH W. RYAN, JR.

cc: AUSA Joseph R. Conway, Chief

Long Island Division

38a

[1]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

U.S. Courthouse

Brooklyn, New York

CR-01-1168

Status Conference June 27, 2003 10:00 A.M.

UNITED STATES OF AMERICA,

—against—

ROBERT FRIEMANN,

Defendant.

BEFORE:

HONORABLE JOANNA SEYBERT

United States District Judge

Appearances:

For the Government: ROSLYNN R. MAUSKOPF, ESQUIRE

United States Attorney

610 Federal Plaza

Central Islip, New York 11722-4454

By: JOSEPH CONWAY, ESQUIRE

Assistant U.S. Attorney

39a

For the Defendant: JOSEPH RYAN, ESQUIRE

190 EAB Plaza

Uniondale, New York

Court Reporter: RONALD E. TOLKIN, RMR

Official Court Reporter

225 Cadman Plaza East

Brooklyn, New York 11201

(718) 260-2567

Proceedings recorded by mechanical stenography, tran-

script produced by Computer-Assisted Transcript.

[2]

(Time: 10:35 a.m.)

THE CLERK: United States versus Robert Friemann. Your

appearances, please.

Mr. CONWAY: Good morning, Your Honor.

Joseph Conway, for the government.

THE Court: Good morning, Mr. Conway.

MR. RYAN: Good morning, Your Honor.

Joseph Ryan, for Mr. Friemann.

THE Court: Good morning, Mr. Ryan.

I- understand that you had requested a conference

because there are certain motions being contemplated?

MR. RYAN: Yes. We contemplate filing a motion on or

before July 1Sth addressed to the non-tax counts, only the

BTA portion of the indictment.

We believe that Your Honor can determine in advance of

trial Mr. Friemann should not been subject to a trial based

upon all of the revelations in the Isernio trial.

40a

We would like to have a response from the government

in 30 days, if that is possible, August 15th. So that we can

look forward to some kind of resolution in September.

THE CourT: What is the government’s position on this?

MR. Conway: Your Honor, our position is twofold. One,

I believe, pretrial Mr. Ryan has made numerous motions

[3] to dismiss count one, the mail fraud count, and money

laundering count.

We would say at this time even with the testimony that

was given in the trial of Albert Isernio, that those motions

have never really been disposed of, and there is nothing in

that testimony that would render additional motions to be

made.

That being the case, if Your Honor is of the rind set to

allow him to file the motions, we would ask for September

Sth to respond. I can give you the reasons as to why I need

the additional time.

THE Court: Can you tell me what they are?

Mr. Conway: Yes, Your Honor. They are twofold. One

very simply reason is July and August with the vacation

schedule, a lot of the trial team, as you know, will be

scattered. As I believe we told you a couple of weeks ago,

I was not present but Mr. OCornacchia and others were

here.

We are trying to supercede the indictment. It is not

adding charges but deleting charges.

THE Court: The tax charges?

MR. CONWAY: Well, we are going to supercede our tax

charges. The main case we are trying to conform that to the

proof and actually reduce the indictment. In doing so we,

4la

obviously, will be reexamining Mr. Friemann’s position in

that indictment as well.

[4] 1 think if we had until September Sth, that would

give us additional time to make whatever decisions we

need to make on cleaning that indictment up and superced-

ing it, to have whatever charges we feel are necessary for

the two trials that we are faced for in the future.

THE Court: You are not looking to put Mr. Friemann in

on a trial in the superceding indictment for the purposes of

trying Mr. Isernio, are you?

Mr. Conway: No. What we will do only in the sense that

they are the two remaining defendants, but we have

already agreed that they are separate trials. We will redact

the indictments for each trial. In terms of superceding the

initial indictments, since they are codefendants, we will do

that as well.

We have no plans for one joint trial. They are two sepa-

rate trials as the court has decided, and we have agreed to

it in the past.

MR. RYAN: The problem that I have with the govern-

ment’s response is that we are filing a motion with respect

to the current pending indictment, which is pending in this

court, and it was superceded twice for over two and a half

years.

We don’t want to be confronted with another indictment

that materi ully alters and changes the current one that we

are addressing. So | am at a loss to understand why [5] in

the superceding indictment we have to wait to September.

If the superceding indictment can be cleaned up in short

order, then we can file a motion addressed to that. I am at

a loss to understand that. Unless there is some possibility

42a

that upon evaluation of the case that Mr. Friemann will not

be in the superceding indictment. That is also a possibility

that | would certainly hope might occur.

Mr. Conway: There will not be any material alterations,

Your Honor. There is no contemplation of any added new

charges. It is just conforming to the proof that we had in

trying to reduce the amount of information in the indict-

ment to make it a more concise, simpler instrument.

In doing so we will examine not only all of the evidence

that came against Mr. Isernio but all of the evidence that

we have against Mr. Friemann.

If in our judgment we believe that one of the mail fraud

counts or one of the other counts is not warranted, that will

be reflected in the superceding indictment. There certainly

will be no additional charges and no additional informa-

tion, and nothing to surprise Mr. Ryan.

THE Court: I will give you until September but if you

don’t put include it in the superceding indictment—this

investigation there has to be some resolution of this.

Mr. Conway: Yes, Your Honor.

Just so you know, Your Honor, it is a superceding [6]

indictment.

THE Court: There spent three nonths on trial with one

defendant still to have pending charges as to the tax counts

to be resolved at a later time. | became a grandmother dur-

ing the course of the whole proces:

Mr. CONWAY: That is a good thing.

THE Court: It is a good situation. Perhaps it is but I don’t

want to be a great grandmother by the time it has resolved

itself.

43a

Mr. Conway: Nor do I want to become a grandfather.

Just so you know, Your Honor, the superceding indict-

ment is not in the general sense as we always use it to

bring additional charges. This will actually reduce the

scope of the indictment.

THE Court: I am very hopeful.

The Isernio case is going to be tried in January, as we all

know. I am not looking forward to another three months of

trial on this, and I am sure that you are not as well.

Mr. CONWAY: We are not, Your Honor.

THE Court: Work real hard and see if you can widal [sic]

away some of the extraneous matters, which will reduce the

time spent on Isernio. Absent a total victory for Mr. Ryan we

will reduce the time involved on the trial date for Mr. Frie-

mann.

Mr. CONWAY: That is certainly my hope, Your Honor.

THE Court: Mr. Ryan, why don’t you take until towards

the end of July to get the papers in.

MR. RYAN: July 30th?

THE Court: Ail right, July 30th.

Mr. Conway, you want September Sth?

Mr. Conway: I believe that is the first Friday in Sep-

tember, is that correct?

THE Court: Yes.

Mr. Ryan, how long do you want to respond to that? Do

you want about two weeks.

MR. RYAN: Two weeks, Your Honor.

44a

THE COuRT: So we are looking at September 19th, is that

right?

COURTROOM DEPUTY: Yes, Your Honor.

THE Court: I will see you folks then.

Have a great summer.

Mr. CONWAY: You, too, judge.

MR. RYAN: Take care, judge.

(Whereupon the matter was concluded.)

I, RONALD E. TOLKIN, HEREBY CERTIFY THAT:

(A) THE FOREGOING PAGES REPRESENT AN

ACCURATE AND COMPLETE TRANSCRIPTION OF

THE ENTIRE RECORD OF THE PROCEEDING BEFORE

THE- UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF NEW YORK, JUDGE SEYBERT

PRESIDING IN THE MATTER OF UNITED STATES

OF AMERICA AGAINST ROBERT FRIEMANN AND

(B) THESE PAGES CONSTITUTE THE ORIGINAL

TRANSCRIPT OF THE PROCEEDING.

THIS TRANSCRIPT CERTIFICATION IS VOID IF

THE SIGNATURE IS NOT ORIGINALLY SIGNED

BY THE COURT REPORTER WHO REPORTED THIS

MATTER.

/s/) RONALD E. TOLKIN

RONALD E. TOLKIN, RMR

OFFICIAL COURT REPORTER

45a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Docket No. 01 CR 1168 (S-2) (JS)

UNITED STATES OF AMERICA

—against—

ROBERT F. FRIEMANN,

Defendant.

NOTICE OF MOTION

MOTION By: JOSEPH W. RYAN, JR., PC

Attorneys for Defendant

ROBERT F. FRIEMANN

DATE AND TIME: At a date and time to be fixed by the

Court

PLACE: United States Courthouse

Courtroom of Hon. Joanna Seybert

1030 Federal Plaza

Central Islip, New York 11722

RELIEF SOUGHT: For an order of dismissal pursuant to

18 USC § 3162, upon the ground that

the Government has failed to provide

Mr. Friemann with a trial within the

70-day limit provided by the Speedy

Trial Act, following the declaration of

46a

a mistrial of co-defendant, Albert E.

Isernio on April 10, 2003 (a trial from

which Mr. Friemann was severed).

SUPPORTING Affirmation and Memorandum of Law

PAPERS: in Support of Motion to Dismiss under

the Speedy Trial Act and Exhibits there-

REPLY PAPERS: Any opposition papers are requested to

be served at least five days before the

motion deadline.

Dated: Uniondale, New York

September 18, 2003

Respectfully submitted,

- JOSEPH W. RYAN, JR. (JR2408)

JOSEPH W. RYAN, JR., P.C.

Attorneys for Defendant

ROBERT FRIEMANN

190 EAB Plaza — 15 East

Uniondale, NY 11556-0190

(516) 663-6515

To:

Honorable Roslyn Mauskopf

United States Attorney

610 Federal Plaza

Central Islip, NY 11722

Attention: AUSA Joseph Conway

47a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Cr. No. 01-CR-1168(S-2)(JS)

UNITED STATES OF AMERICA

—against—

ROBERT F. FRIEMANN,

Defendant.

AFFIRMATION IN SUPPORT OF MOTION

FOR DISMISSAL

JOSEPH W. RYAN, JR., an attorney admitted to practice in

the Courts of the State of New York, hereby affirms under

penalty of perjury:

1. This affirmation is submitted in support of a motion

for an order of dismissal pursuant to 18 USC § 3162, upon

the ground that the Government has failed to provide Mr.

Friemann with a trial within the 70-day limit provided by

the Speedy Trial Act, following the declaration of a mis-

trial of co-defendant, Albert E. Isernio on April 10, 2003 (a

trial from which Mr. Friemann was severed).

Overview

2. The Speedy Trial Act has been violated because as of

the date of this affirmation, more than 150 non-excludible,

48a

[sic] non-waived days have elapsed since the /sernio mis-

trial, and the clock continues to run. Mr. Friemann has

made every effort to speedily resolve his case, by seeking

to file a motion to dismiss the non-tax counts (on a brief-

ing schedule that would likely have brought a ruling by

early September), and by declaring his readiness for a

prompt tria] on the tax counts. But the Government frus-

trated Mr. Friemann’s efforts by representing, at the time

Friemann proposed the motion, that another, third, super-

seding indictment might be filed. Friemann’s proposed

motion obviously couid not be filed while the specter of an

S-3 hung in the air: if S-3 were in fact to materialize, it

would render S-2 (and a motion attacking it) moot; and an

evidence-based motion attacking S-2, filed while the Gov-

ernment was still presenting to the grand jury, would have

been self-defeating, serving only to alert the government

to deficiencies in its case that it might seek to redress in

the grand jury. The Government’s latest intentions are not

to provide Mr. Friemann with a trial until] mid-2004, more

than three years after his arrest in June of 2001.

3. In support of the motion, we rely upon the arguments

set forth in the accompanying memorandum of law and on

the following facts, revealed by the record in this case.

Severance from the /sernio Trial

4. On January 13, 2003, during the course of jury selec-

tion in the joint trial of co-defendants Albert Isernio and

Michael Agoglia, the Court granted Mr. Friemann’s

renewed motion for severance, upon the consent of the

Government. The docket sheet shows that the Court

ordered that, “Mr. Friemann shall be tried on all counts

presently pending against him in one trial to be held sub-

49a

sequent to Mr. Isernio and Mr. Agoglia’s trial.” Docket

Sheet entry no. 217. The severance order did not address

the possibility of a mistrial.

The /sernio Mistrial

5. As the lengthy /sernio trial drew to a close, on March

18, 2003, Mr. Friemann requested a pre-trial conference

for the purpose of scheduling a trial immediately following

the Isernio trial, in accordance with the severance order.

Exhibit A.

6. On April 10, 2003, the Court declared a mistrial in

Isernio upon the jury’s failure to reach a unanimous ver-

dict, and the retrial, initially scheduled for September

2003, was adjourned to January 4, 2004 at Mr. Isernio’s

request.

7. This left six months of 2003 for the trial of Mr. Frie-

mann. Nonetheless, the Government made no arrange-

ments during this time to conference, or reschedule, the

Friemann trial, or to elicit a Speedy Trial waiver from

Mr. Friemann.

Mr. Friemann’s Effort to Speedily Resolve His Case

8. Contrary to the Government’s inattention to his case,

Mr. Friemann sought to resolve it expeditiously. The plan

was (i) to promptly file a motion, based on the evidence in

the /sernio trial, attacking the sufficiency of the BPA

charges against him (conspiracy and money laundering),

on a briefing schedule that it was hoped would bring a

Court decision in September (given the Court’s familiarity

with the testimony), and (ii) to try the tax counts in the

fall.

50a

9. In furtherance of this plan Friemann requested a sta-

tus conference to address the motion. At that conference,

which was held on June 27, 2003, counsel for Mr. Frie-

mann advised the Court and the Government of his pro-

posal to file a motion to dismiss the non-tax (BPA) counts

for insufficiency and his desire to promptly proceed to trial

on the remaining tax Counts. Exhibit B.

10. Counsel for Friemann stated that the motion could

be filed within approximately two weeks, on or before July

15, 2003, and asked for “a response from the government

in 30 days, if that is possible” in order “that we can look

forward to some kind of resolution in September.” Exhibit

B, p. 2. The Government first opposed the application by

arguing that nothing in the testimony at the /sernio trial

would justify additional motions, but then asked if it could

have until September Sth to respond, citing the vacation

schedule of the trial team.

11. But the Government then raised an additional issue

at the conference, representing to the Court that it was

“trying to supersede the indictment.” AUSA Conway

Stated:

In doing so we, obviously, will be reexamining

Mr. Friemann’s position in that indictment as well.

I think if we had until September Sth, that would

give us additional time to make whatever decisions

we need to make on cleaning that indictment up and

superceding it, to have whatever charges we feel are

necessary for the two trials that we are faced for in the

future.

Sla

In doing so we will examine not only all of the

evidence that came against Mr. Isernio but all of the

evidence that we have against Mr. Friemann.

* * * *

If in our judgment we believe that one of the mail

fraud counts or one of the other counts is not warrant-

ed, that will be reflected in the superceding indict-

ment. Exhibit B, pp. 2 and 5.

_ 12. The Court granted the Government’s request to have

until September Sth, but warned the Government against

undue delay stating:

THE Court: There [was] spent three months on trial

with one defendant still to have pending charges as to

the tax counts to be resolved at a later time. I became

a grandmother during the course of the whole process.

... It 1s a good thing but don’t want to become a great

grandmother by the time it has resolved itself. Exhib-

it B, pp. 5-6.

13. The Conference concluded with the setting of a

briefing schedule but without a commitment from the Gov-

ernment, one way or the other, concerning the possible

S-3. Under the briefing schedule, Mr. Friemann was to file

on or before July 30, 2003, the Government’s opposition

was due on or before September 5, 2003, and Friemann’s

reply was due by September 19, 2003.

52a

The Government Frustrated the Friemann

Motion and Trial Plan

14. The possibility that the Government might supersede

stifled Friemann’s effort to move his case to trial or to seek

to dismiss it. Dangling a possible S-3 that might or might

not reduce the charges against him made it impossible for

Friemann to file a motion seekirig to dismiss S-2, an indict-

ment on which he might not be tried. S-2 (and a motion

attacking it) would have been rendered moot by S-3, and

the motion, by exposing deficiencies in the government’s

case, would have served only to help the government clean

up its presentation of S-3 to the grand jury (if, in fact, it

was superseding).

15. Accordingly, for the next two months, Mr. Frie-

mann’s counsel pressed the Government to state, first and

foremost, whether it would be filing a superseding indict-

ment against Mr. Friemann. Counsel also urged the Gov-

ernment to consider dropping the charges against

Mr. Friemann in their entirety. Exhibits C and D. Because

the Government repeatedly ignored these requests, the pro-

posed motion schedule was, at Mr. Friemann’s request,

held in abeyance by the Court, pending the Government’s

announcement as to whether it would or would not seek a

superseding indictment.

16. The Government did not make its intentions known

until September 8, 2003, 67 days after the motion schedul-

ing conference, and three days after the Court-imposed

deadline of September Sth. On September 8th, AUSA

Joseph R. Conway finally advised counsel that the Gov-

ernment does indeed intend to file a superseding indict-

ment, that it will do so on or about September 24, 2003,

and that the proposed S-3 will likely drop the main con-

53a

spiracy charge against Mr. Friemann while leaving the

money laundering and tax charges. AUSA Conway further

advised counsel that the Government does not intend to try

Mr. Friemann until some time in 2004, after the conclusion

of the /sernio retrial.

Reasons for Dismissal With Prejudice

17. As set forth in the accompanying memorandum of

law, upon a finding that the Speedy Trial Act has been vio-

lated, the Court is required to dismiss the indictment, the

only remaining question being whether that dismissal shall

be with or without prejudice. As the memorandum further

addresses, that decision, while guided by statutory and

other factors, is committed to the sound discretion of the

trial Court. I respectfully refer the Court to the arguments

set forth in the memorandum of law, which I do not restate

here.

18. I highlight here, however, only one factor that the

Court is especially urged to take into account in the exer-

cise of its discretion. As the Court is already aware, the

prosecution of Mr. Friemann has, from the outset, been

marked by strong indicia of bad faith on the part of the

~Government—from the highly but unnecessarily publi-

cized pre-dawn arrest (a bullying tactic to which only he,

the most peripheral defendant, was subject) to the numer-

ous renewals of the baseless motion to disqualify Frie-

mann’s counsel—each designed as a tactical maneuver to

pressure Mr. Friemann into dropping his defense. The

Government’s callous and disregard of Mr. Friemann’s

right to a speedy trial should be seen as yet another of

these tactical, bad faith maneuvers. No doubt the govern-

ment discerned the potential success of Friemann’s pro-

54a

posed motion (signaled, perhaps, by the Court’s granting

of a judgment of acquittal to Agoglia, another peripheral

co-defendant) and also saw that a ruling on the motion

would, as Friemann sought, have cleared the way for a

prompt trial on the remaining tax charges, an event the

government appears not to want to happen (Isernio, no

doubt, being a much more important defendant). The Gov-

ernment’s interference with Mr. Friemann’s right to a

speedy trial should be the last straw, and a reason for dis-

missal of the indictment with prejudice.

Dated: Uniondale, New York

September 18, 2003

Respectfully submitted,

JOSEPH W. RYAN, JR. (JR2408)

55a

[LETTERHEAD]

JOSEPH W. RYAN, JR., P.C.

ATTORNEYS AT LAW

JOSEPH W. RYAN, JR.

JOHN R. QUINN

190 EAB PLAZA

EAST TOWER, 15TH FLOOR

UNIONDALE, N.Y. 11556-0190

516-663-6515

TELECOPIER: (516) 663-6644

WEBSITE: JoeRyanLaw.com

jwrlaw@ix.netcom.com

BY FACSIMILE AND MAIL

July 22, 2003

Honorable Roslynn R. Mauskopf

United States Attorney

Eastern District of New York

610 Federal Plaza

Central Islip, NY 11722

Attention: AUSA Joseph R. Conway

Re: U.S.A. v. Robert Friemann

N 1-CR-1]

Dear Mr. Conway:

This will confirm that, at your suggestion, we left a

voicemail request yesterday to be advised whether the

Government intends to seek a superseding indictment.

We do not want to file a motion addressed to an indict-

ment, upon which Mr. Friemann will not be tried. It is

56a

important, therefore, that we be advised of whether the

Government will seek a superseding indictment as soon as

possible, especially in view of the motion schedule requir-

ing the filing of our papers on or before July 31, 2003.

Your prompt response would be appreciated.

Very truly yours,

/s/ JOSEPH W. RYAN, JR.

JIWR:dm JOSEPH W. RYAN, JR.

cc: Honorable Joanna Seybert

57a

[LETTERHEAD]

JOSEPH W. RYAN, JR., P.C.

ATTORNEYS AT LAW

JOSEPH W. RYAN, ux.

JOHN R. QUINY’

190 EAB PLAZA

EAST TOWER, 15TH FLOOR

UNIONDALE, N.Y. 11556-0190

516-663-6515

TELECOPIER: (516) 663-6644

WEBSITE: JoeRyanLaw.com

jwrlaw@ix.netcom.com

BY FACSIMILE AND MAIL

July 30, 2003

Honorable Joanna Seybert

United States District Judge

United States Courthouse

1034 Federal Plaza

Central Islip, NY 11722

Re: United States v. Robert Friemann, et al.

Docket No. 01-CR-1168-S-2

Dear Judge Seybert:

When a briefing schedule was established at our request

for a motion for dismissal on behalf of our client, Robert

Friemann, the Government had indicated that it intended to

obtain a superseding indictment. After the Court appear-

ance, however, we were advised to contact the Government

for a confirmation on or about July 21, as to whether it

would indeed seek a superseding indictment.

58a

On July 21, 2003, we made an inquiry by voicemail and

letter, but as of this date, have received no response from

the Government.

We respectfully suggest that, pending the Government’s

confirmation as to whether or not it will seek a supersed-

ing indictment, that the briefing schedule be held in

abeyance. It does not serve any purpose to file a motion

addressed to an indictment, upon which Mr. Friemann will

not be tried.

Thanking you for your attention, I am

Very truly yours,

/s/ JOSEPH W. RYAN, Jr.

JWR:dm JOSEPH W. RYAN, JR.

CC: AUSA Joseph R. Conway, Chief

Long Island Division

[HANDWRITTEN NOTE: ]

Application Granted. The briefing schedule

shall be held in abeyance.

[STAMP:]

SO ORDERED:

/s/ JOANNA SEYBERT

Joanna Seybert USDJ

Dated: 8-22-03

Central Islip, NY

59a

[LETTERHEAD]

JOSEPH W. RYAN, JR., P.C.

ATTORNEYS AT LAW

JOSEPH W. RYAN, JR.

JOHN R. QUINN

190 EAB PLAZA

EAST TOWER, 15TH FLOOR ae

UNIONDALE, N.Y. 11556-0190

516-663-6515

TELECOPIER: (516) 663-6644

WEBSITE: JoeRyanLaw.com

jwrlaw@ix.netcom.com

August 12, 2003

Honorable Roslynn R. Mauskopf

United States Attorney

Eastern District of New York

610 Federal Plaza

Central Islip, NY 11722

Attention: AUSA Joseph R. Conway

Re: U.S.A. v. Robert Friemann

Docket No. 01-CR-1168 (JS)

Dear Mr. Conway:

This will confirm that you have suggested that we con-

tact you office on August 26, 2003 concerning its decision

whether it will re-present the Friemann case to the Grand

Jury.

60a

We do urge your office to reconsider any further prose-

cution of Mr. Friemann.

Thanking you for your attention, | am

Very truly yours,

JWR:dm JOSEPH W. RYAN, JR.

——— or —— —_—— = em a _—

6la

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Docket No. 01-CR-1168(S-2)(JS)

UNITED STATES OF AMERICA

—against—

ROBERT FRIEMANN,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF

ROBERT FRIEMANN’S MOTION TO DISMISS

UNDER THE SPEEDY TRIAL ACT

JOSEPH W. RYAN, JR., PC

Attorneys for Defendant .

Robert Friemann

EAB Plaza - !5 East

Uniondale, NY 11556

(516) 663-6515

On the brief:

Joseph W. Ryan, Jr.

John R. Quinn

62a

Statement of Facts

The relevant facts are set forth in the affirmation of

Joseph W. Ryan, Jr., dated September 15, 2003 (the “Ryan

Aff.”) and in the interest of economy are not restated here.

Argument

POINT |

THE INDICTMENT SHOULD BE DISMISSED WITH

PREJUDICE BECAUSE THE GOVERNMENT DENIED

MR. FRIEMANN HIS RIGHT

TO SPEEDY TRIAL

This motion presents only two questions: 1) whether a

violation of the Speedy Trial Act occurred, and 2) if so,

whether the required dismissal should be with or without

prejudice.

A. The Government Violated the Speedy Trial Act Because

Mr. Friemann Was Not Tried Within 70 Non-Excludible

Days of the /sernio Mistrial, and No Explicit Waiver

Was Taken

There can be no genuine dispute that a violation of the

Speedy Trial Act occurred. Under the Act, it is the obliga-

tion of federal prosecutors to bring a criminal! defendant to

trial within 70 days of the filing of the indictment or the

defendant’s first appearance before a judicial officer,

whichever occurs last. 18 U.S.C. §3161(c)(1). If the defen-

dant is to be retried following a mistrial, the trial must

begin within seventy days from the date the trial judge

declares the mistrial. 18 U.S.C..§ 3161 (e). The only exten-

sions of the 70-day limit are the exclusions of time pro-

vided for by statute, in section 3161(h)(1) through (h)(9).

63a

As set forth in detail in the Affirmation of Joseph W.

Ryan, Jr., dated September __, 2003 (the “Ryan Aff.”),

more than 70 (in fact, more than 150) non-excludible days

have lapsed since the Court deciared a mistrial in the

Isernio case on April 10, 2003, and the clock continues to

run: unlike other pre-trial motions, a motion addressing

Speedy Trial Act rights does not stop the clock. See United

States v. Upton, 921 F. Supp. 100, 103 (E.D.N.Y. 1995

(Glasser, J.), aff’d sub nom. United States v. Dragone, 78

F.3d 65 (2d Cir. -1996); United States v. Didier, 542 F.2d

1182, 1188 (2d Cir. 1977) (to stop the clock would “improp-

erly penalize defendants for their invocation of speedy trial

rules and run counter to those rules”); United States v.

Buffalo Amusement Corp., 600 F.2d 368, 375 (2d Cir.

1979).

None of the conceivable subsection (h) exclusions that

the government might invoxe applies here. First, no pre-

trial motions have been filed since the Isernio trial, and

even if the government were to suggest that the 67 days

between the pre-trial conference on June 27, 2003 (when

_ Friemann’s counsel proposed, but never filed, a motion to

dismiss) and Septzmber 5, 2003 (the government’s dead-

line for responding to that unfiled motion) should be

excluded, still, more than ninety non-excludibie days have

lapsed since the /sernio mistrial.

Second, the early continuance that the Court granted —

“due to complexity” was not open-ended and has expired

now that the /sernio case has been tried. See United States

v. Upton, 921 F. Supp. at 102 (following clear Second Cir-

cuit authority, Judge Glasser holds tat exclusion for com-

plexity under § 3161(h)(8) is not open-ended and “must be

limited in time and reasonably related to the actual needs

of the case”).

64a

Third, the issuance of S-3, which the Government has at

last disclosed is likely to occur in late September, will not

reset the speedy trial clock. As described by the govern-

ment, S-3 will “clean up” the charges but not substantially

alter them or add any new charges against Friemann. Thus,

S-3 will inherit the clock of S-2. See United States v.

Roman, 822 F.2d 261, 264-65 (2d Cir.), cert. denied, 484

U.S. 954 (1987); United States v. Karseeboom, 881 F.2d

604, 607 (9th Cir. 1989.)

Finally, there was no explicit waiver given by Mr. Frie-

mann sufficient to stop the Speedy Trial clock. It is clear

in this circuit that any waiver must be explicit, and

“specifically tailored to address only the time periods actu-

ally being waived.” United States v. v. Cruz, 907 F. Supp.

87, 92 (S.D.N.Y. 1995) (quoting United States v. Didier,

542 F.2d 1182, 1189 (2d Cir. 1976)), aff’d, 116 F.3d 466

(2d Cir. 1997).’ Any waiver must also be elicited “before

[the court] excludes time from the speedy trial clock.”

Cruz, 907 F. Supp. at 92 (emphasis in original). Thus, no

implied or.constructive waiver can be imputed to Mr. Frie-

mann retrospectively.

lr. Friemann is not here complaining about the delay

resulting from Isernio’s trial, from which he was severed at

his own request. Instead, the speedy trial violation, and the

subject of this motion, is what occurred after Isernio’s

trial. The severance order, to be sure, did not address the

possibility of mistrial, but Mr. Friemann did not agree to

be hostage to whatever number of trials the government

| Although Didier was issued when the Speedy Trial Act was

passed but before it was effective and thus refers only to local speedy

trial rules, the Circuit’s analysis in Didier, as Judge Haight noted in

Cruz, nonetheless applies to Speedy Trial Act analyses. See Cruz, 907

F. Supp. at 92, n. 2.

65a

might need_to resolve the case against Isernio or to what-

ever speedy trial waivers Isernio might make in his own

interests. To the contrary, since the Isernio mistrial, as

detailed in the Ryan Affirmation, Mr. Friemann has made

every effort to move his case forward, while the govern-

ment, by delays in responding to the letters and phone calls

of counsel and in disclosing whether it would supersede,

appears to have been doing whatever it could to derail that

effort.? There can be no disputing that the Speedy Trial Act

was violated.

B. The Dismissal Should be With Prejudice

As a sanction for the government’s failure to comply

with the *ime limit of section 3161(c), the Speedy Trial Act

expressly directs that the “indictment shall be dismissed

on motion of the defendant.” 18 U.S.C. § 3162 (a)(2). The

decision whether to dismiss with or without prejudice is

committed to the discretion of the district court. United

States v. Wilson, 11 F.3d 346, 352 (2d Cir. 1993). As a

guide to a court’s exercise of its discretion, in deciding

whether the dismissal is to be with or without prejudice,

the statute directs the Court to consider the following non-

exclusive list of factors: “the seriousness of the offense;

the facts and circumstances of the case which led to the

dismissal; and the impact of a reprosecution on the admin-

2 Thus Fricmann’s case is unlike Speedy Trial cases in which the

courts have found that delay caused by the government was “ratified”

by the defendant’s own strategic desire to delay the trial for tactical

advantage, see, e.g., United States v. Patiwana, 928 F. Supp. 226

(E.D.N.Y. 1996) (Block, J.), aff'd, 173 F.3d 845 (2d Cir. 1999), or that

the defendant engaged in “gamesmanship” by consistently acceding to

pre-trial delays, see, e.g., United States v. Gambino, 59 F.3d 353 (2d

Cir. 1995).

66a

istration of the [Act] and on the administration of justice.”

18 U.S.C. § 3132 (a)(2). In addition to these statutory fac-

tors, courts also consider prejudice to the defendant.

United States v. Taylor, 487 U.S. 326, 334 (1988).

i. The Seriousness of the Charged Offense.

Although the seriousness of the offenses, as charged, is

not disputed, “seriousness of the offense” as a statutory

factor should not weigh against dismissal with prejudice in

this case because the role of Mr. Friemann in the commis-

sion of the offenses has not, and is not likely to be, estab-

lished by the government. From the outset, as the Court’s

extensive experience with the case confirms, Mr. Friemann

has been a peripheral defendant, the small fish that the

Government hoped, by bullying tactics, it could pressure

into a cooperation agreement.

On the BPA conspiracy count, as fully revealed in the

Isernio trial, the Government’s proof confirms that Mr.

Friemann was neither the originator, procurer, nor imple-

menter of the proposals that succeeded in awarding BPA

the two health care administration contracts. None of his

clients, the co-defendants Jack Blake, Mike Blake or

David Blake, testified that Mr. Friemann assisted them in

committing the fraud charged in the indictment, and no

other witness implicated Mr. Friemann in any respect.

Importantly, the Government now plans, consistent with

the evidence, to drop Mr. Friemann from the principal con-

spiracy charge. Thus, that offense’s “seriousness” cannot,

under these circumstances, weigh against dismissal with

prejudice.

As for the money laundering charges, based on the testi-

mony of the Blakes in the /sernio trial, no reasonable juror

could conclude that the $224,125 that S&F Consulting

67a

received was the product of any criminal activity and, even

assuming the existence of the conspiracy, no reasonable

juror could conclude that Friemann was aware that the

moneys were generated by any bribery or fraud scheme. In

any event, the Government’s doubts about the strength of

its case against Friemann, reflected in the decision to drop

Friemann from the conspir. -’ charge in S-3, also spills

over to the money laundering charges which derive from

the conspiracy charge.

As for the tax charges, brought at least in part merely to

revive the motion to disqualify counsel, they were always

secondary in importance to the principal conspiracy charge

and they have serious flaws, including materiality and lack

of tax loss (as discussed in full in Friermann’s prior motion

to dismiss, which the Court granted in part). In sum, the

“seriousness of the offense” in this case is a less material

consideration because of the serious lack of proof of

Mr. Friemann’s culpability in the charged offenses.?

ii. The Facts and Circumstances Leading to

Dismissal.

On this factor, the reason for the speedy trial violation,

courts regularly consider the “culpability of the delay-pro-

ducing conduct.” United States v. Patiwana, 928 F. Supp.

at 238 (citations omitted). As the First Circuit explained, in

a passage cited by Judge Block, “the appropriateness of

barring reprosecution increases in relatively direct propor-

tion to the degree of culpability which attaches.” Pati-

wana, 928 F. Supp. at 238 (quoting, Uniied States v.

Hastings, 847 F.2d 920, 925 (ist Cir.), cert. denied, 488

While S-3 is likely before the grand jury as of this writing, it

would be inappropriate to furnish any greater summary of what would

have been in the proposed motion to dismiss.

68a

U.S. 925 (1988)). There is a clear consensus, in this Circuit

and others, that delay “designed to gain a tactical advan-

tage” weighs heavily in favor of dismissal with prejudice.

See, e.g., Didier, 542 F.2d at 1187 (Second Circuit revers-

ing and ordering dismissal with prejudice, noting the gov-

ernment’s “desire to gain tactical advantage” through the

delay); United States v. Wells, 893 F.2d 535, 539-40 (2d

Cir. 1990) (dismissal with prejudice appropriate where the

Government shows bad faith or neglectful attitude).

As detailed in the Ryan Affirmation, there is no doubt

that the government is responsible for the delay leading to

the speedy trial violation here. It was the government who

failed to respond to counsel’s efforts to learn whether S-3

would be filed, and that non-responsiveness appears to

reflect the government’s effort to thwart Friemann’s poten-

tially successful motion to dismiss, or to prevent an

autumn trial on the tax ccunts, or both. The dilatory con-

duct was unquestionably “tactical” because it serves the

government’s dual goal of avoiding the expenditure of

resources on Friemarn’s case (either to brief it or to try it)

while preparing to retry its prime defendant (Isernio), and

of not putting any of its Isernio witnesses on the stand

again, before the Isernio retrial (which would supply

Isernio’s counsel with more ammunition for cross-exami-

nation).

‘il. The Impact of Reprosecution on the Administration

of the Speedy Trial Act and on the Administration of

Justice, and Prejudice to the Defendant.

The third statutory factor is treated along with prejudice

to the defendant. As Judge Glasser reasoned in United States

v. Upton, 921 F. Supp. at 105, in which he dismissed an

indictment with prejudice for a speedy trial act violation,

69a

“the impact of reprosecution on the administration of the

Speedy Trial Act and on the administration of justice must,

of necessity, also embrace the unexpressed factor of preju-

dice to the defendant.” As Judge Glasser noted, there is pre-

sumptive prejudice to a defendant when the speedy trial act

is violated, and “to fail to assign significant weight to this

- factor would seriously undermine the administration of the

Speedy Trial Act.” /d. Thus, Judge Glasser considered this

presumptive prejudice separate from any actual prejudice to

the defendant in terms of his ability to prepare for trial. Jd.

In terms of the prejudice inherent in any delay, Mr. Frie-

mann was a subject of the Grand Jury investigation begin-

ning in March 1999, more than four years ago, when received

a subpoena for grand jury records relating to S&F. As a CPA

who once enjoyed an impeccable reputation throughout the

business community, he has, as a result of the charge, had to

resign as a partner from his accounting firm, and been sub-

stantially hampered in his ability to pursue his profession.

He has suffered acute psychological, social, professional

and economic losses that will be difficult to recover. Given

the record of government bad faith tactics, the pending

dropping of the conspiracy charge, the paucity of proof on

the other charges, and the public-interest considerations out-

lined below, the Court is urged to exercise its discretion in

favor of bringing this prosecution to its end.4

4 On the narrowes issue of trial prejudice, both Mike Blake and

Ruth Schneider are witnesses who can exonerate Mr. Friemann, based

upon testimony at the Isernio trial (Blake) and the Grand Jury (Ruth

Schneider), as confirmed by defense interviews of both witnesses. Both

are approaching seventy, and Mike Blake, as the Court knows, is in pre-

carious health. Because of the passage of time, the government’s sched-

ule—a trial in mid 2004—-might well jeopardize, or could even

sabotage, the defense.

70a

In this case, the concerns with the administration of jus-

tice, the administration of the Speedy Trial Act, and preju-

dice to Mr. Friemann all militate strongly in favor of

dismissal with prejudice. As courts consistently note, it is

the obligation of the government to ensure speedy trial

rights, see, e.g., Didier, 542 F.2d at 1187 (“primarily

responsibility for speedy trial enforcement rests primarily

... On the government, not on the defendant”), and to dis-

miss with prejudice would send the necessary message to

the government. Particularly in this case, as described in

detail in the Ryan Affirmation, the prosecutors’ thwarting

of Friemann’s speedy trial right is neither their first nor an

inadvertent misstep, but is the most recent maneuver in a

sustained pattern of bad faith tactics designed to treat Frie-

mann like a second-class defendant. On this record, the

sanction of dismissal with prejudice is entirely appropriate.

As courts also regularly observe, the purpose of the

Speedy Trial Act was not only to protect defendants’ rights,

but to serve the public’s interest in the prompt adjudication

of cases. See, e.g., Patiwana, 928 F. Supp. at 239. The pub-

lic also has an interest in seeing that the vast prosecutorial

powers of the government are not misused in the particular

manner they were exploited here: the arrest and bullying of

a peripheral defendant solely to serve the ends of convicting

a principal defendant. This is not an uncommon modus

operandi of the United States Attorney’s Offices in this and

neighboring districts, and a dismissal with prejudice here

would send the necessary message that this kind of prosecu-

tion—brought more in the service of the case against a

larger defendant than for its own sake—is improper. A dis-

missal with prejudice would send the further message that,

even if the prosecution of the peripheral defendant is gen-

uine, the government still may not be insensitive to that

Tla

defer * while it focuses on the principal defendant. By

contrast, io dismiss without prejudice and allow reprosecu-

tion would serve only to validate all of the Government’s

bad-faith conduct to date, and to re-open the prosecutorial

hunting season on Mr. Friemann.°

Conc'usion

For all of the foregoing reasons, the Court is respectfully

requestea to dismiss all charges in this case against Mr. Frie-

mann, with prejudice, for violation of the Speedy Trial Act.

Dated: Uniondale, New York

September 18, 2003

JOSEPH W. RYAN, JR., PC

EAB Plaza — 15 East

Uniondale, New York 11556

(516) 663-6515

Attorneys for Defendant

Robert Friemann

Joseph W. Ryan, Jr. (2408)

On the Brief

John R. Quinn

* Jennifer Brewer, a member of the St. John’s Law

School Class of 2004, also contributed significantly to the

preparation of this brief.

Alternatively, Friemann asserts, on essentially the same

grounds, a violation of his constitutional, as opposed to his statutory,

right to a speedy trial. See Barker v. Wingo, 407 U.S. 514, 530 (1972);

Doggett v. United States, 505 U.S. 647, 650 (1992).

72a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Docket No. 01-CR-1168 (S-4)(JS)

UNITED STATES OF AMERICA

—against—

ROBERT F. FRIEMANN,

Defendant.

REPLY MEMORANDUM OF LAW

IN FURTHER SUPPORT OF

ROBERT FRIEMANN’S MOTION TO DISMISS

UNDER THE SPEEDY TRIAL ACT

JOSEPH W. RYAN, JR., PC

Attorneys for Defendant

Robert Friemann

EAB Plaza ~ 15th Floor East

Uniondale, NY 11556

(516) 663-6515

On the brief:

Joseph W. Ryan, Jr.

John R. Quinn

73a

Robert Friemann respectfully submits the following

points in reply to the Government’s letter, dated October

17, 2003, opposing Friemann’s motion to dismiss on

speedy trial grounds.

SUMMARY OF ARGUMENT

By way of placing the government’s interwoven argu-

ments in context, a speedy trial motion presents two dis-

tinct issues—whether a violation of the Speedy Trial Act

has occurred, and, if so, whether the statutorily required

dismissal should be with or without prejudice.

On the first issue, the government does not come right

out and assert that the Act has not been violated-—in fact,

they concede that Friemann has experienced a six month

delay, so far—the government implies that time should be

excluded post hoc for two reasons. First, the government

relies on the fact that the Court designated this case as

“complex” (and that “such designation was “agreed to by

Friemann”) and implies, without directly asserting, that

that designation, made before the Isernio trial, allows the

exclusion of the more than seven months that have lapsed

since the Isernio mistrial was declared on April 10, 2003.

But the complexity designation, made to enable the gov-

ernment and counsel-to prepare for trial, expired with the

Isernio trial. No complexity designation as to Friemann’s

trial has been made, nor would it be appropriate to make

one. Having already prepared and tried the conspiracy

case, the government does not need more than 70 days to

prepare the money laundering charges (which derive from

the conspiracy case), nor can the government reasonably

claim that there is any special complexity in, or need for

added time to prepare, the Friemann tax counts.

74a

The government also suggests that time should be

excluded, or that Friemann should not be heard to com-

plain if it isn’t, because Friemann requested a severance

from Isernio. There is no statutory or decisional authority

for this proposition, nor does it make any sense. Even the

government concedes that when Friemann requested the

severance to which the government acquiesced, neither

side contemplated the possibility of a mistrial. The law

plainly requires that, to be valid, waivers of speedy trial be

explicit and unequivocal. The failure of either side to con-

template mistrial—a kind of latent ambiguity in the sever-

ance order—a fortiori means that the order is not clear and

unequivocal as to speedy trial rights and cannot function as —

an open-ended waiver of them.

As matters stand, the government does not intend to try

Friemann until after both Isernio’s retrial on the conspir-

acy count and Isernio’s tax trial—which means a trial date

some time in the middle of 2004, a year and a half after

severance was ordered in January 2003 (and this projec-

tion assumes that neither of Isernio’s 2004 trials ends in

mistrial). There is no authority for the proposition that a

severance renders Friemann hostage in this manner. The

severance order in this case, concededly unclear as to

speedy trial rights beyond the time needed for Isernio’s

trial, cannot and must not operate as an implied open-

ended waiver of 18 months or more of speedy trial time.

Such a waiver cannot be inferred but must be explicit, and

no such waiver was given.

What is clear is that substantially more than seventy |

days have lapsed since the Isernio mistrial.

The only remaining issue is whether the statutorily

required dismissal for speedy trial violations should be

final or without prejudice. As discussed in Friemann’s ini-

75a

tial motion, the statute requires the Court to consider three

factors, plus prejudice. (Friemann Brief at 4-8). The gov-

ernment offers no argument on the first factor, the serious-

ness of the charges, a telling concession. While money

laundering and tax fraud are of course serious offenses, the

government has sent a strong signal that their case against

Friemann is not as they once claimed it to be, and that

Friemann is not as important a defendant as-they once

claimed. The government in fact has no case against Frie-

mann on the principal conspiracy charge, which is what

this prosecution has always been about.

On the other statutory factors affecting the remedy, the

government argues that Friemann should not be heard to

complain because he is responsible for the delay, implying,

by the long quote from United States v. Pringle, that Frie-

mann is somehow guilty of Pringle-like dilatory tactics or

gamesmanship, more than merely asking for severance.

But that insinuation has no basis in th> record, which

shows just the opposite.

In anticipation of the approaching conclusion of the

Isernio trial, on March 18, 2003, Friemann’s counsel sub-

mitted a letter requesting a conference concerning “the

trial of Robert Friemann.” The motion formally proposed

at the conference on June 27, 2003 was an effort to resolve

the non-tax portion of the case “with a resolution in Sep-

tember,” in ‘counsel’s words, reflecting the hope that the

autumn window (before Isernio’s January trial), could be

used to try Friemann on any non-dismissed counts. It is the

government who is guilty of delay, having dangled the

prospect of an unnecessary S-4 to stall the proposed

motion.

The government’s final point is that Friemann has failed

to show prejudice, a ludicrous assertion both because

76a

Friemann does discuss in his initial motion papers (Brief

at pp. 7-9) the emotional, financial, professional and legal

prejudice he has suffered. Plus, Friemann has suffered sub-

stantial additional prejudice in the form of S-4. The gov-

ernment claims that Friemann has only benefited from the

delay because the fourth superseding indictment no longer

charges him with participating in the principal BPA con-

spiracy. But the government did not need ar S-4 for that-—

they could have dropped Friemann from the conspiracy

case without going back to the grand jury. S-4 in fact helps

the government, to the significant detriment of Friemann,

because S-4 has been drafted precisely in order to defeat

the motion Friemann proposed at the June 27 conference.

As Friemann’s counsel advised the Court and the gov-

ernment, the purpose of the proposed motion was to show

that the Court could dismiss the non-tax charges against

Friemann on the basis of the revelations in the Isernio

trial.'! S-4 contains numerous factual allegations that did

not appear in S-2; each of these new allegations, however,

is simply the government’s interpretation of a portion of

the Isernio trial record. The conversion of what was for-

merly evidence and argument about evidence into allega-

tions in an indictment has the effect of insulating the

indictment from Friemann’s proposed motion, for now,

instead of having to argue about the evidence, the govern-

ment can niftily hide behind the principle that “allegations

of the grand jury” must be taken as true.

S-4 also works to the government’s advantage and

Friemann’s detriment in a trial. What was merely govern-

ment argument about evidence in the Isernio trial has now

been cast in black and white as findings of the grand jury

' See transcript of June 27, 2003 at p. 2.

77a

in S-4, the document that the jury can hold, and so they are

necessarily a probative step above prosecutor argument at

trial. Of course it is also highly improper for the govern-

ment to use the grand jury in this way—not to continue any

genuine investigation, but to gain a tactical advantage by

drafting a better indictment. In the event the Court denies

this motion, Friemann expressly reserves the right to make

a substantive motion att.cking S-4 on the grounds of grand

jury impropriety.

REPLY POINT I

FRIEMANN’S SPEEDY TRIAL CLOCK EXPIRED

Friemann’s speedy trial clock expired on June 19, 2003,

seventy days after the Court declared a mistrial in /sernio.

None of the government’s desperate efforts to have this

Court infer a post hoc exclusion of time has merit.

A. The Former Designations of the Case as “Complex” Do

Not Survive the /sernio Trial

The Government seeks to make much of the fact that on

five different occasions before the commencement of the

Isernio triai the Court designated this case as complex for

purposes of the Speedy Trial Act, and that Friemann con-

sented to the complex case designation. While there is no

dispute that the “complex case” designations were proper

when made, there is no such thing as “continuing com-

plexity.” As even the Government’s letter recognizes, com-

plexity findings must be “limited in time” and “reasonably

related to the actual needs of the case.” United States v.

Gambino, 59 F.3d 353, 358 (2d Cir. 1995).

The rationale for this exclusion is clear. Sometimes a

case’s complexity “makes it necessary to grant counsel

78a

further time to prepare in order to ensure a fair trial.” Gam-

bino, 59 F.3d at 357. Further, the Speedy Trial Act requires

that, when making a complexity exclusion, a court expressly

“find” and explain why the interests of justice outweigh

the interests of the defense and the public in a speedy trial.

Id. =

Here, the purpose of the complexity finding—to allow

the government and defense counsel time to prepare for the

trial—was accomplished when Isernio was tried. No new

finding of complexity was made after the mistrial, nor did

either the Government or counsel for Friemann request

further exclusion of time in order to prepare. Indeed, given

that the principal conspiracy case has already been pre-

pared and tried once, any request for a complexity finding

as to Friemann would have to be denied. Friemann’s

money laundering charges derive from the case the gov-

ernment has already tried, so it does not give rise to any

special need for additional time to prepare, and the gov-

ernment could not seriously contend that it needs more

than seventy-days to prepare to try the relatively straight-

forward tax charges. :

The Gambino case is directly on point and requires a

finding that Friemann’s right to a speedy trial was violated.

In Gambino, the Court found that the speedy trial clock

was violated because of the delay between the end of the

trial of codefendants Gotti and Locascio and the trial of the |

severed co-defendant Gambino. The Second Circuit

specifically reyected the Government’s claim that the com-

plexity designation entered before the Gotti trial was “con-

tinuing,” and held that that designation did not extend to

the subsequent trial of Gambino. 59 F.3d at 358. The

Court’s reasoning is instructive: “The inherent intricacy of

the government’s case is not a relevant factor in the pres-

79a

ent discussion. Were Gambino’s trial postponed to the next

millénnium the proof would still be complex,” but the case

was not “complex” for purposes of the Speedy Trial Act

because, by virtue of having tried the first (Gotti) case,

neither the government nor the defense needed additional

time (beyond the 70-day limit) to prepare. /d.

Here, likewise, by virtue of having tried the Isernio case,

the government has already climbed the lion’s share of the

complexity curve. However “complex” the government

might claim that the proof may be, there is no longer a

need for an extension of the seventy day time period to

prepare.

B. By Seeking Severance, Friemann Did Not Consent to

Wait, Indeterminately, For However Many Times the

Government Might Try Isernio.

The Government plainly mischaracterizes the severance

request and order, twice asserting that Friemann consented

to have his case follow a “resolution” of the case against

Isernio. (Gov. Ltr. at 4, 5). To the contrary, as the govern-

ment concedes, the operating assumption was that there

would be a verdict, not a mistrial, and that is what is rele-

vant for purposes of assessing the speedy trial implications

of the severance order. As discussed in Friemann’s princi-

pal motion papers, waivers of speedy trial time must be

explicit and specifically tailored to address only the actual

time period being waived. See Friemann Brief at p. 3.

Especially given the undisputed fact that mistrial was not

in anyone’s mind when severance was ordered, the only

waiver of speedy trial time that can be said to be explicit

and specifically tailored is a waiver through Isernio’s trial.

Not only was the retrial of Isernio after mistrial not con-

templated at the time of severance, but the third Isernio

80a

trial now on the calendar (for his unrelated tax counts) was

also not in the picture then. Even though some of the pres-

ent delay in the scheduling of Friemann’s trial is due to the

request of Isernio’s counsel to adjourn the retrial, it should

be remembered that even that contingency—the need of

Isernio’s counsel for an adjournment—was not contem-

plated, inasmuch as the severance order was issued when

the Isernio trial was about to begin. Thus, Friemann cannot

be held to have waived his speedy trial rights for however

many times the government might seek to try Isernio, or

for however lengthy an adjournment Isernio’s counsel might

seek for the retrial, and for tax or whatever other charges

the government might bring and try separately against

Isernio.

Absent explicit discussion, at the time of severance, to

the risk of mistrial, retrial, a separate tax trial, or the cal-

endar of Isernio’s counsel—or absent some statutory or

judicial authority dispensing with the requirement that

speedy trial waivers be explicit—the Court cannot con-

clude, post hoc, that Friemann intended to wait up to a year

and a half for three Isernio trials before his day in court.

No reported decision has attached such a high price to the

right to request a severance. Indeed, the government’s sug-

gestion that delay is the price Friemann must pay because

he sought severance is disingenuous. Severance was not a

hardship imposed on the government, but a procedure to

which the Government fully acquiesced. Furthermore, the

government’s actions since the Isernio trial fully ratify

Friemann’s position with respect to severance. The gov-

ernment’s eventual dropping of Friemann from the princi-

pal BPA conspiracy counts on which Isernio was tried and

will be retried shows that the severance was indeed appro-

priate: the fact that Friemann and Isernio are no longer

8la

charged in the same counts shows that there was no basis

for the government to have sought to try them together in

the same trial in the first place.

In sum, neither the severance, nor the complexity desig-

nation—nor, for that matter, any other event occurring

before the Isernio trial—acts as an exclusion of time under

the Speedy Trial Act. More than seventy days having

lapsed since a mistrial was declared in Isernio, dismissal of

S-4 is required.? The only remaining question is whether

that dismissal should be with or without prejudice.

REPLY POINT II

THE REQUIRED DISMISSAL OF S-4

MUST BE WITH PREJUDICE

A. Friemann Did Not Cause the Speedy Trial Violation

The government makes the wholly baseless suggestion

that Friemann is responsible for the six month delay since

the Isernio mistrial and that Friemann has engaged in dila-

tory tactics rising to the level of gamesmanship, dishon-

esty, and manipulation that support a Pringle waiver. See

United States v. Pringle, 751 F.2d 419, 434-35 (ist Cir.

1984). The record, however, shows just the opposite.

Even before the Isernio trial concluded, counsel for

Friemann wrote the Court requesting a status conference

concerning “the trial of Robert Friemann.” When the con-

ference was held, on June 27, 2003, counsel for Friemann

2 As discussed in Friemann’s initial motion papers (at p. 3), super-

seding indictments.that do not add new charges do not restart the

speedy trial clock. Thus, S-4 inherits the clock of S-2 and therefore,

although not issued at the time this motion was filed, is now the instru-

ment subject to dismissal.

82a

proposed a motion seeking to dismiss the non-tax charges

on the basis of revelations at the Isernio trial. 3 It was the

government who sought an extended briefing schedule to

accommodate both their vacation schedules and the possi-

bility that they would issue a superseding indictment. The

government then engaged in a pattern of delay in commu-

nicating its intentions to Friemann’s counsel, further

thwarting the proposed motion (which naturally could not

be made until it was clear what indictment Friemann

faced).

One particular assertion of the government concerning

this post-mistrial period is especially misleading. The gov-

ernment argues that the “record is barren as to any request

seeking a speedy trial” and in particular places weight on

the absence of a request for “trial” at the June 27 confer-

ence. Gov. Ltr. at 5. As the law makes clear, it is not the

defendant’s obligation to ask for a speedy trial; it is the

government’s (and the court’s) obligation to monitor the

clock. 18 U.S.C. § 3161(c)(1); United States v. Didier, 542

F.2d 1182, 1187 (2d Cir. 1976) (“responsibility for speedy

trial enforcement rests primarily ... on the government,

not on the defendant.”). For the same reasons the defen-

dant ordinarily does not have the power to waive the

Speedy Trial Act: there is a great public interest in a

3 Friemann is not responsible for the fact that on March 18, 2003

he made a request for a conference and the conference was not held

until June 27, 2003. It appears that until Isernio’s counsel sought to

adjourn the Isernio retrial from its original September date, the focus of

the Government was on Isernio, its prirae defendant, and Friemann was

barely on the radar. But, as argued in Friemann’s principal brief, that is

all the more reason to dismiss with prejudice-—-to send a message to the

government that bringing charges against a peripheral defendant in the

service of a larger case, and then being inse.sitive to the speedy trial

and other rights of that peripheral defendant, cannot be tolerated.

83a

prompt criminal trial. Gambino, 59 F.3d at 360. This does

not mean that defense counsel should employ “cunning

strategy” to “subvert Congress’s goal” of prompt trials or

engage in manipulative delay tactics that trigger a Pringle

waiver of speedy trial rights. But no such conduct occurred

here.

As the accompanying reply affirmation of Joseph Ryan

attests, in conversations before the June 27 conference

Friemann’s counsel made clear to the government that

Friemann was seeking a prompt trial on the tax counts.

Mr. Ryan advised AUSA Conway that Friemann was seek-

ing an early trial on the tax counts, before the Isernio

retrial, and sought the government’s consent to drop the

BPA counts, in view of the government’s offer to allow

Mr. Friemann to plea to a tax count in full satisfaction of

the indictment.

The proposed motion was entirely consistent with and in

furtherance of this objective: pressing for trial but narrow-

ing the scope of that trial by eliminating the non-tax

counts. At the June 27th conference, counsel for Friemann

specifically voiced his hope that the briefing schedule for

the motion would allow “some kind of resolution in early

September”—the point of September being, as the govern-

ment already knew from conversations with Friemann’s

counsel before the conference, to allow for trial on the tax

counts during the autumn window, before Isernio’s retrial

in January 2004.

In any event, nothing Friemann’s counsel could have

said at the June 27th conference would have affected Frie-

mann’s speedy trial rights, for the speedy trial clock had

already expired by that point. Again the Second Circuit’s

Gambino decision is highly instructive here. In Gambino,

59 F.3d at 362, the Court took note that

84a

Defense counsel never alerted the trial court or the

prosecutor to the potential speedy trial problem. On

the contrary, after the superseding indictment was

returned, counsel repeatedly sought to have the trial

date postponed ... At a status conference ... counsel

specifically informed the court that “our case doesn’t

involve any speedy trial problems.” ... Under such

circumstances, such tactics might constitute waiver-

creating delay. But here the right to a speedy trial

guaranteed under the Act had already been violated,

and defense counsel’s delaying sirategy may not be

used as a reason retroactively to waive this guaranteed

right... If a violation occurred between April and

August 1992 ... counsel’s later requests for a deferral

in October 1992 could not undo the earlier violation.

As the Gambino panel Court made clear, counting the 70

days is a black and white process, without compromise:

returning to the complexity issue, the trial . >urt had, in

fact, eventually made a separate complexity designation as

to the second (Gambino’s) tri. but the Second Circuit

held that that designation was not valid because it had

occurred more than seventy days after the first (Gotti’s)

trial. Jd. In addition, courts have made clear that any

waiver of speedy trial time must be elicited “before the

court excludes time from the speedy trial clock.” United

State v. Cruz, 907 F.Supp. 97, 92 (S.D.N.Y. 1995) (empha-

sis added). So again, nothing anyone could have said on

June 27th could have remedied the violation of the Speedy

Trial Act that had already occurred.

Here, as has been discussed, Friemann’s counsel did not

engage in any delaying tactics, and did not strategically

stage a speedy trial act violation. But as a matter of law,

85a

nothing counsel could have said on June 27 could have

undone the violation that had already occurred.*

B. Frizmann Has Been Substantially Prejudiced By the

Delay.

Had Friemann been tried within seventy days of Isernio’s

mistrial, as the Act requires, he would not now be a defen-

dant on S-4. The existence o* S-4 puts him in a signifi-

cantly worse position than he was in as a defendant in S-2.

Even though S-4 eliminates Friemann from the principal

BPA conspiracy counts, Friemann could have been dropped

from those counts without an S-4. The government could

have simply moved to dismiss those counts as to him.°

The real effect of S-4 is that it contains, as factual alle-

gations that did not appear in S-2, numerous instances of

the government’s interpretation of a portion of the Isernio

4 The procedural steps taken by counsel after the June 27th con-

ference, then, are not relevant to assessing the cause for the delay, but

to the extent they have any bearing on the overall equities, it is worth

noting that counsel’s request to hold the briefing schedule in abeyance

was not a dilatory tactic but the only step he could take in light of the

government's representation that it was re-evaluating Friemann’s posi-

tion in the case and might supersede to eliminate part of the case. It was

worth waiting to sec whether the government elected to drop the

charges against Friemann altogether and, at the very least, it was

impossible to file a motion attacking S-2 while aware that S-3 loomed

as a possibility against Friemann.

5 The government asserts that the grand jury failed to indict Frie-

mann on the former Counts One, Two and other counts, but the truth of

the matter is that the Government most likely did not present those

counts to the grand jury.

6 Portions of S-4 reflecting this government tactic include, inter

alia, paragraphs 8, 9, 11, 12, 14, 15, 16, 21, 23, 26, and allegations

throughout the tax counts. As stated earlicr, Friemann expressly reserves

86a

dence and argument about evidence into allegations in an

indictment has the effect of insulating the indictment from

Friemann’s proposed motion. Now, in opposition to any

such motion, the government can avoid having to argue

about the evidence by invoking the principle that the face

of the indictment—i.e., “allegations of the grand jury”’—

must be taken as true.

S-4 also works to the government’s advantage and Frie-

mann’s detriment in a trial. What was merely government

argument about evidence in the Isernio trial has now been

cast in black and white as findings of the grand jury in S-

4, the document that the jury can hold, and so they are nec-

essarily a probative step above prosecutor argument at

trial.

The Court is also respectfully referred to the discussion of

prejudice in Friemann’s initial motion papers at pp. 4-9.’

In sum, all three statutory factors and the non-statutory

factor of prejudice militate in favor of dismissal with preju-

dice here. Although the Second Circuit in Gambino affirmed

his right to make a substantive motion addressing S-4 in the event the

Court denies this motion and shall, in any such motion, provide a com-

prehensive analysis with respect to S-4. For purposes of this motion we

provide only the paragraph numbers for the purpose of alerting the Court

to the severity of the problem. The government is not prejudiced on this

motion by Friemann’s failure to reveal his position further inasmuch as

the government is quite well aware of what changes S-4 embodies.

7 Finally, the Government's discussion of the constitutional right

to a speedy trial need not be addressed. Friemann’s motion, as the ini-

tial motion papers reflect, rests principally on the statutory right to a

speedy trial. The constitutional standard in fact tolerates much longer

periods of delay than the statute. Footnote Reference was made in Frie-

mann’s initial motion papers to the constitutional claim not because of

any belicf in the “futility” (as the government suggests) of the statuto-

ry claim, but only by way of issue preservation.

87a

the conviction despite the speedy trial act violation on harm-

less error grounds, it sent a bold message to lower courts:

[w]e hasten to add that our holding is not a signal that

affirmance of a district court’s failure to dismiss an

indictment [for violation of the Act] will routinely fol-

low. On the contrary, since we review the question of

prejudice de novo, nondismissal in the event of a vio-

lation [of the Speedy Trial Act] wil! always risk nulli-

fying an entire trial.”

Gambino, 59 F.3d at 364.

CONCLUSION

For all of the foregoing reasons, the Court is respectfully

requested to dismiss all charges in this Case against Mr. Frie-

mann, with prejudice, for violation of the Speedy Trial Act.

Dated: Uniondale, New York

October 27, 2003

JOSEPH W. RYAN, JR., PC

EAB Plaza—15 East

Uniondale, New York 11556

(516) 663-6515

Attorneys for Defendant

Robert Friemann

Joseph W. Ryan, Jr. (2408)

On the Brief

John R. Quinn

* Jennifer Brewer, a member of the St. John’s Law

School Class of 2904, also contributed significantly to the

preparation of this brief.

88a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Docket No. CR-01-1168 (S-4)(JS)

UNITED STATES OF AMERICA

—against—

ROBERT FRIEMANN,

Defendant.

REPLY AFFIRMATION

IN FURTHER SUPPORT

OF MOTION FOR DISMISSAL

JOSEPH W. RYAN, JR., an attorney admitted to practice in

the Courts of the State of New York, hereby affirms under

penalty of perjury:

1. This affirmation is submitted in reply to one of the

assertions made by the government in its letter, dated

October 17, 2003, opposing Robert Friemann’s motion for

dismissal under the Speedy Trial Act.

2. On page 5 of its letter, the government asserts that

“the record is barren as to any request seeking a speedy

trial” and seeks to place particular weight on the absence

of an express request for trial at the conference on June 27,

2003. This is simply not the case. As demonstrated in the

accompanying reply memorandum of law, it was not the

defendant’s obligation to ask for the speedy trial that the

89a

Act guarantees him, nor could anything counsel have said

at the June 27 conference have changed the fact that the

speedy trial clock had already expired by that point. In any

event, I wish here to clarify the record: Friemann unequiv-

ocally did request a speedy trial.

3. On March 18, 2003, in anticipation of the close of the

Isernio trial, our office submitted a letter to the court request-

ing a conference concerning “the trial of Robert Friemann.”

4. When the Isernio trial was adjourned from September

2003 to January 2004, I advised AUSA Joseph Conway

that we were seeking to try the tax counts before the Isernio

retrial, in the fall of 2003 and sought a conference to sched-

ule a motion date to dismiss the BPA counts. I sought the

government’s consent to drop the BPA counts against

Mr. Friemann to facilitate the trial, especially after it had

failed to convict Isernio, the key architect of the BPA con-

spiracy, following a grueling three month-trial, and the gov-

ernment’s prior plea offer to allow Mr. Friemann to end the

entire criminal prosecution against him by a plea of guilty

to one of the tax counts.

5. Thus, at the June 27th conference, the government was

well aware, both from my March 18, 2003 correspondence

and from conversations, that we were seeking to resolve the

BPA counts against Mr. Friemann, and proceed as speedily

as possible, for a trial on the remaining tax counts—well

before the Isernio retrial.

Dated: Uniondale, New York

October 27, 2003

Respectfully submitted,

JOSEPH W. RYAN, JR. (JR2408)

90a

(1]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CR-01-1168 CR-03-886

September 26, 2003 1:30 p.m.

United States Courthouse

Central Islip, New York

UNITED STATES OF AMERICA

—against—

ALBERT ISERNIO,

Defendant.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE JOANNA SEYBERT

UNITED STATES DISTRICT JUDGE

Appearances:

For the Government: ROSLYNN MAUSKOPF

United States Attorney

100 Federal Piaza

Central Islip, New York 11722

By: JOSEPH CONWAY

MICHAEL CORNACCHIA

Assistant United States Attorney

For the Defendant: JOHN WING, Esq.

9la

Court Reporter: Mary Ann Steiger

100 Federal Plaza

Central Islip, New York 11722

(631) 712-6101

Proceedings recorded by mechanical stenography, tran-

script produced by computer.

[2)

THE CLERK: For arraignment on 01-1168 and status con-

ference on 03-886, United States versus Isernio.

Counsel, state your appearances.

MR. CONWAY: Joseph Conway, Michael Cornacchia,

Kevin Mulry and Collin O’Donnell for the government.

Mr. WING: John Wing for Mr. Isernio.

THE COURT: Good afternoon, Mr. Isernio.

And, Mr. Wing, on behalf of your client, you’re waiving

a reading of the charge and, of course, entering a plea of

not guilty?

MR. WING: That’s correct, your Honor.

THE CourT: This is substantially less, this particular

indictment, than the one that was submitted to the jury at

the end of the trial this past year.

Additionally, 1 would note there’s now pending a new

indictment. So, I’m essentially attempting to determine

whether or not—whether I want to go with the now

reduced indictment on the previous mistrial or just start

with the new charges which are contained in CR-03-886,

and those charges are quite abbreviated in regards to the

allegation certainly, and deal with the discrete income tax

returns in 1997 and °98 and, in addition, to structuring

charges.

92a

I believe that the basis for the indictment certainly

would be the testimony that Mr. Isernio gave in [3] the

proceeding before the Court. 1’m somewhat hesitant to

change, but I’m open to any suggestions. I realize that the

Government’s case will take at least a month even with the

new reduced indictment approximately and I don’t know

how long the defendant’s case will take, if he intends to

testify again or present witnesses in addition to those pre-

sented by the government.

Mr. CONWAY: For whatever help it might be, your

Honor, even with the reduced version of the indictment

that ended in the mistrial, we still expect to call about 20

witnesses give or take a couple on each side.

I think the Court’s probably right; four, five weeks for

the Government’s case. With all due respect to Mr. Wing,

] can’t determine how long his cross will be, whether it

will be shorter or longer than the first time around. That’s

a factor that has to be considered as well.

-- As far as the newer indictment, that is a much shorter

case. We estimate five, six witnesses.

THE COURT: Tops two weeks?

Mr. Conway: Yes. I don’t think it’s a type of case that

requires extensive cross-examination. It’s document

heavy. | think two weeks is fine.

THE CourT: ! don’t think there’s a whole lot of discov-

ery that would be necessitated.

[4] Mr. Conway: We provided Mr. Wing discovery on

September 11. We sent him a letter with a bunch of the

documents that we used in order to indict the case, some of

which he has from the first time around, but some new

ones.

93a

As far as the government is concerned, we’re ready for

trial in January whether we’re coming in to try a tax case

or the old indictment. We will defer to what the Court

wishes to do.

THE Court: Mr. Wing, I also am cognizant of the fact

that your trial schedule has driven the scheduling of this

Court and I cannot permit that to continue.

I’ve gotten a number of calls. And I’m certainly not

blaming you. I’m telling you what some of my dilemmas

have been.

I attempted to try this case in September. | called Judge

Martin based upon your representation that you would be

trying a case before him.

This was back in June when we met with regards to

scheduling the trial, and at that time he assured me that

you would be on trial. A new judge would be located in

‘Westchester, that Judge Martin wasn’t going to be trying it.

Since that time, Judge Martin has been retired. There was

no judge sent to Westchester, and now I have Judge Amon

from the Eastern District calling to [5] see what your trial

schedule is because you have some other matters that—

MR. WING: That’s after this.

THE Court: I want to schedule this and get both indict-

ments out of the way.

In order to facilitate this I think it would be a lot more

efficient to try the later case first.and then schedule the

mistrial shortly thereafter.

MR. WING: Your Honor—

THE Court: I do have other cases.

MR. WING: I know you do, Judge.

94a

I think we had been planning to try the retrial first. And

I would be happy to consult with my client, but I think ini-

tially my instinct is since that’s the way we were geared

up, that’s what I would propose to do unless there was

some commitment from the government if we tried the

shorter case first that the mistrial, the second case, would-

n’t have to go.

THE Court: The government can’t make that kind of

commitment. I run the courtroom. I’m sure you would like

to tell me when I can try a case too. I can only answer to a

higher authority.

MR. WING: They have discretion to dismiss if they feel

it’s appropriate. That’s what | was thinking of.

[6] THE Court: I don’t see that coming.

I think it would be wise to try the charges that are later

in time simply to get those out of the way and then I will

give you most likely a two week break and you’ll go right

into the other case.

Any motions that you want to make on the new indict-

ment, you can do those within—how long a time do you

need to file the motion?

Mr. WING: I was going to ask for 30 days.

Mr. Conway: Not knowing what the motions will be, if

we can take three weeks to respond. If we can do it earlier,

we will.

THE Court: What motions do you contemplate?

Mr. WING: I don’t know that I’1] have—I want to renew

motions that were made the first time around.

THE Court: That’s the other indictment. I’m doing the

motions on the new charge.

95a

MR. WING: I understand, Judge. Some of them might be

similar motions, Ill put it that way.

THE Court: Similar motions on it, okay.

MR. WING: I don’t know that I have any specific motions

at the moment. I just got the indictment two days ago.

THE Court: Not the new indictment.

MR. WING: Yeah, the new one. I’m sorry, you’re [7] talk-

ing about the tax indictment.

THE COURT: Yes.

MR. WING: On that one, Judge, I would ask 30 days for

mot

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