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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005

## Text

7

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

8

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-

a

9

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.

10

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)

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).

12

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

13

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

14

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

15

why petitioner Friemann’s case also warrants review by
this Court:

A. The Waiver Issue

1.

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 ——

16

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).

17

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

a

18

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.

19

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.”

20

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.

21

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.

22

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.

4

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

-

23

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-

24

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

25

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.

26
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.

i

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.

il
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

la

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.

2a

UNITED STATES OF AMERICA,

Appellee,
V.

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,
NY

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).

3a

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

4a

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).

5a

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-

2

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.

6a

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

7a

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:

8a

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

é
Present:

Hon- José A. Cabranes,
Hon. Renna Raggi,
Circuit Judges,

Hon. Leonard B. Sand,
District Judge.

9a
USA,

V.

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,

a.

b.

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-
to

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

3

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0545%3A1. Public record. Not legal advice.