Case 1:08-cr FB Document 192 Filed 09/29/09 Page 1 of 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Transcription

1 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 1 of 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, v. RALPH CIOFFI AND MATTHEW TANNIN, No. 08 Cr. 415 (FB) ECF Defendants. MATTHEW TANNIN S MEMORANDUM OF LAW IN OPPOSITION TO GOVERNMENT MOTION FOR A CURCIO HEARING AND IN FURTHER SUPPORT OF HIS MOTION IN LIMINE TO PRECLUDE CERTAIN EVIDENCE Susan E. Brune Nina M. Beattie MaryAnn J. Sung BRUNE & RICHARD LLP 80 Broad Street New York, New York (212) Attorneys for Matthew Tannin Dated: New York, New York September 29, 2009

2 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 2 of 17 TABLE OF CONTENTS PRELIMINARY STATEMENT...1 ARGUMENT...4 I. THE GOVERNMENT SHOULD BE PRECLUDED FROM CALLING CATHERINE REDLICH TO TESTIFY...7 A. Ms. Redlich s Testimony Is Not Probative as to Consciousness of Guilt...7 B. Because Ms. Redlich s Testimony Would Disclose the Substance of Joint Defense Communications, it is Privileged and Inadmissible...9 II. THE GOVERNMENT SHOULD BE PRECLUDED FROM OFFERING EVIDENCE REGARDING THE CLOSURE OF MR. TANNIN S GMAIL ACCOUNT...11 A. Because Mr. Tannin s Gmail Account Was Closed on Advice of Counsel, Evidence Concerning the Closure Has No Probative Value...11 B. Admitting Evidence of the Account s Closure Would Violate Mr. Tannin s Fifth and Sixth Amendment Rights...12 CONCLUSION...14

3 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 3 of 17 TABLE OF AUTHORITIES Cases Hawkins v. LeFevre, 758 F.2d 866 (2d Cir. 1985) Ispat Inland, Inc. v. Kemper Environmental, Ltd., No. 05 Civ. 5401, 2007 WL (S.D.N.Y. Jul. 31, 2007) Lugosch v. Congel, 219 F.R.D. 220 (N.D.N.Y. Dec. 16, 2003) Purgess v. Sharrock, 33 F.3d 134 (2d Cir. 1994)... 6 United States v. Al-Sadawi, 432 F.3d 419 (2d Cir. 2005)... 8, 9 United States v. Bautista, 23 F.3d 726 (2d Cir. 1994) United States v. Beahm, 664 F.2d 414 (4th Cir. 1981)... 9 United States v. Benacquista, No. 08 Cr. 94A, 2008 WL (W.D.N.Y. Jun. 9, 2008)... 6 United States v. Cunningham, 672 F.2d 1064 (2d Cir. 1982)... 1, 2, 5, 6 United States v. Diozzi, 807 F.2d 10 (1st Cir. 1986)... 9 United States v. Fulton, 5 F.3d 605 (2d Cir. 1993)... 5, 6 United States v. Gearhart, 576 F.3d 459 (7th Cir. 2009)... 5, 6 United States v. Jones, 900 F.2d 512 (2d Cir. 1990)... 6, 7 United States v. Parker, 903 F.2d 91 (2d Cir. 1990) United States v. Perez, 325 F.3d 115 (2d Cir. 2003)... 6 United States v. Stein, 410 F. Supp. 2d 316 (S.D.N.Y. 2006)... 2, 4, 5 Wheat v. United States, 486 U.S. 153 (1988)... 4, 6, 7 Rules Model Rules of Prof l Conduct R. 3.7 (2004)... 5 ii

4 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 4 of 17 Matthew Tannin respectfully submits this memorandum of law in opposition to the government s motion for a Curcio hearing and in further support of his motion in limine (1) to preclude the government from calling Catherine Redlich to testify and (2) to exclude evidence of the closure of his Gmail account. 1 The government s motion raises serious issues regarding Mr. Tannin s constitutional rights. However, the Court need not reach those issues because under controlling Second Circuit precedent, prior to determining whether any conflict of interest exists, it must first determine the admissibility of the evidence the government seeks to introduce. The evidence that the government proposes to offer is irrelevant, unfairly prejudicial, and inadmissible. Thus, there is no scenario in which Mr. Tannin s trial counsel should become witnesses, no potential conflict of interest, and no need for a Curcio hearing. The evidence simply must be excluded pursuant to Federal Rules of Evidence 104, 401, 402, and 403. PRELIMINARY STATEMENT Mr. Tannin has been charged with conspiracy, securities fraud, and wire fraud based on alleged misrepresentations and omissions made between March and June 2007 in connection with the closing of two Bear Stearns hedge funds (the Funds ). Jury selection begins in less than one week, and the trial begins in two weeks. Brune & Richard has represented Mr. Tannin since August 2007, and is familiar with all of the nuances of the government s case. United States v. Cunningham, 672 F.2d 1064, (2d Cir. 1982). During our more than two years as counsel, we have reviewed well in excess of 10 million pages of discovery, prepared to examine numerous government witnesses, organized potential legal arguments for trial, and prepared the defense case. The facts of this case are particularly complex and for that reason we expect that the defense may call numerous 1 This brief supplements Mr. Tannin s letter motion submitted to the Court on September 21, 2009.

5 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 5 of 17 significant expert witnesses. Under these circumstances, there can be no question that we are best qualified to advocate zealously on Mr. Tannin s behalf and to provide Mr. Tannin the vigorous defense to which he is entitled under the Constitution. Depriving him of his counsel of choice could subject him to real prejudice in the prosecution of his defense. Id. at 1071; see, e.g., United States v. Stein, 410 F. Supp. 2d 316, (S.D.N.Y. 2006) ( real prejudice found eight months prior to trial where counsel had developed a significant body of knowledge, formulated theories for [the] defense, consulted with experts, begun reviewing the millions of pages of documents produced by the government ). In its motion, the government protests that it does not seek any delay of the October 13, 2009 trial date. (Gov t Motion for Curcio Hearing ( Gov t Mot. ) at 1.) That assertion is difficult to credit. The government has been in possession of the information underlying its Curcio motion since as early as May 8, 2009 and July 17, Yet, it waited until the September 17, 2009 pretrial conference to raise for the first time a potential conflict of interest, and until September 25, 2009 to move for a Curcio hearing and thereby to raise the specter of attorney disqualification. Were we disqualified and new counsel was therefore required to get up to speed, the trial would not take place anytime soon, given the complexity of this case. The government s dilatory tactics in addition to its other recent efforts to divert from the actual criminal charges it brought over a year ago are contrary to this Court s, and the defense s, clear expectations about the orderly conduct of this case. The purported conflicts of interest allegedly arise from evidence that the government seeks to introduce as probative of Mr. Tannin s consciousness of guilt : (1) the testimony of Catherine Redlich, counsel for Raymond McGarrigal, regarding the discovery and circumstances of the production of the April 22, 2007 Gmail (the Gmail ), and (2) evidence regarding the 2

6 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 6 of 17 closure of Mr. Tannin s Gmail account. The government contends that the introduction of these issues into the trial may require Mr. Tannin to call his trial counsel to testify. The government thus asks the Court to determine whether a potential conflict exists. First, with respect to Ms. Redlich s potential testimony, there is no conflict because the testimony is inadmissible: it lacks probative value, is privileged pursuant to a joint defense agreement, and would have an unfairly prejudicial effect. All non-privileged components could be established without Ms. Redlich s or Ms. Beattie s becoming a witness. How and when the Gmail was turned over to counsel for Bear Stearns can be established by other means, and the testimony is unnecessary. Second, the following facts should not reasonably be in dispute: the closure of the Gmail account was pursuant to counsel s advice, and relevant documents, if any, 2 were preserved. Accordingly, the closure of Mr. Tannin s Gmail account cannot be evidence of consciousness of guilt. As we explained in our September 21 letter, we do not intend to waive Mr. Tannin s attorney-client privilege or constitutional rights, and make this representation solely for the limited purpose of responding to the government s motion. Were the government allowed to present evidence of the closure, Mr. Tannin s Fifth Amendment right to silence and his Sixth Amendment right to counsel of his choice would be impermissibly burdened. The government contends, in essence, that Mr. Tannin should be forced to choose between his counsel and proof of his innocence. It is cynical at best to suggest, as the government does, that Mr. Tannin should be asked to waive the admission of evidence that refutes the government s insinuation that he acted improperly. There would be a potentially unwaivable conflict of interest, and the Court would be obliged to disqualify counsel unless the 2 We use the if any formulation here, out of caution. We have not waived and do not waive the act-of-production privilege or any other privilege herein. 3

7 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 7 of 17 Court, in its discretion, were able to fashion an alternative remedy to avoid counsel s testimony. Depriving Mr. Tannin of his counsel of choice in a case as complex as this one, and at this late hour, would substantially prejudice Mr. Tannin in numerous ways, including prejudicing his interest in promptly clearing his name. Significantly, although disqualification might solve the conflict of interest, evidence concerning the circumstances surrounding the account s closure still would violate Mr. Tannin s Fifth Amendment rights. Were the government permitted to suggest that Mr. Tannin improperly disposed of the contents of the Gmail account while under a subpoena, it would necessarily raise Mr. Tannin s assertion of his Fifth Amendment act-of-production privilege. Thus, even if we were disqualified, the evidence about the closure of the Gmail account still could not be admitted. The Supreme Court has cautioned against the possibility that the Government may seek to manufacture a conflict in order to prevent a defendant from having a particularly able defense counsel at his side. Wheat v. United States, 486 U.S. 153, 163 (1988) (internal quotation marks omitted) (emphasis added). The Court should not allow the government to manufacture a conflict here. Because the evidence the government seeks to introduce is inadmissible, defense counsel s testimony is not necessary, and there is no potential conflict of interest. The evidence should be excluded, and the trial should proceed. ARGUMENT The Sixth Amendment right to counsel includes the right to conflict-free representation of counsel of choice. An attorney has a potential conflict if the interests of the defendant could place the attorney under inconsistent duties in the future. Stein, 410 F. Supp. 2d at 323. By contrast, an attorney has an actual conflict when the attorney s and defendant s interests diverge with respect to a material factual or legal issue or to a course of action, id., or when an attorney 4

8 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 8 of 17 engages in wrongful conduct related to the charged offense. United States v. Fulton, 5 F.3d 605, 609 (2d Cir. 1993). After learning of a possible conflict, a trial judge must determine whether the attorney has an actual conflict, a potential conflict, or no conflict at all. If the court determines that counsel has a potential or actual conflict but one that is waivable, the court may accept a defendant s knowing and intelligent waiver of the conflict and permit the defendant to be represented by counsel of his choice. Stein, 410 F. Supp. 2d at Although a defendant s right to counsel of choice is not absolute, this Circuit and others have consistently recognized that the right of a defendant who retains counsel to be represented by that counsel is a right of constitutional dimension. Cunningham, 672 F.2d at 1070 (internal citation and quotation marks omitted). And although matters of disqualification are within the discretion of the Court, see Fulton, 5 F.3d at 614, the [c]hoice of counsel should not be unnecessarily obstructed. Cunningham, 672 F.2d at 1070; see also United States v. Gearhart, 576 F.3d 459, 464 (7th Cir. 2009) ( disqualification of defense counsel should be measure of last resort ). Here, the government has alleged potential conflicts of interest on the ground that Mr. Tannin may need to call his trial counsel to rebut testimony relating to the discovery and production of the Gmail and to the closure of the Gmail account. Because an attorney may not represent a defendant in a criminal case and at the same time be a trial witness except under certain circumstances, see Model Rules of Prof l Conduct R. 3.7 (2004), if trial counsel were required to testify, a potentially unwaivable conflict would arise. But under Second Circuit precedent, disqualification of counsel is required only if defense counsel s testimony is truly necessary. See Cunningham, 672 F.2d at 1075 (remanding for determination of whether testimony of a conversation with defense counsel that would readily support the criminal charges 5

9 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 9 of 17 was admissible); United States v. Benacquista, No. 08 Cr. 94A, 2008 WL , at *4 (W.D.N.Y. Jun. 9, 2008) (courts caution that disqualification may be required only when it is likely that the testimony to be given by [counsel] is necessary. ) (emphasis added) (quoting Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994)); see also United States v. Fulton, 5 F.3d at (comparing the situation where a prosecutor s baseless threat of disciplinary sanctions against the attorney in the heat of battle, in the absence of some foundation, does not affect the attorney s ability to put on a vigorous defense ). A defendant s right to be represented by counsel of his own choice is too important to be denied on the basis of a mere, though substantial possibility that defense counsel might testify. Cunningham, 672 F.2d at For this reason, the Court must first determine whether the evidence the government seeks to introduce and the testimony sought from defense counsel would even be admissible. A ruling on admissibility may obviate the need for defense counsel testimony. See Cunningham, 672 F.2d at The Court also has broad discretion to adopt a remedy other than disqualification. Gearhart, 576 F.3d at 465; see also United States v. Perez, 325 F.3d 115, (2d Cir. 2003) (stipulation regarding employment); United States v. Jones, 900 F.2d 512, 520 (2d Cir. 1990) (attorney proffer letter admitted in redacted form to avoid problem of having jury give it undue weight); Benacquista, 2008 WL , at *4 ( Testimony may be relevant and even highly useful but still not strictly necessary. ). Here, the government seeks to introduce evidence having no or little probative value so as to force trial counsel to testify and thereby potentially to disqualify them. There is no need for Mr. Tannin s trial counsel to become witnesses. This is just the kind of manufactured conflict the Supreme Court has warned against. Wheat, 486 U.S. at 163. Indeed, the Court specifically instructed trial courts to be aware of this possibility and to take it into consideration along 6

10 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 10 of 17 with all of the other factors which inform this sort of decision. Id. See, e.g., Jones, 900 F.2d at 520. The evidence sought to be admitted is inadmissible. That conclusion obviates the need to reach either of the purported conflicts issues. I. THE GOVERNMENT SHOULD BE PRECLUDED FROM CALLING CATHERINE REDLICH TO TESTIFY Defense attorney Catherine Redlich has represented Raymond McGarrigal since approximately August 2007, about the same time that Ms. Beattie began to represent Mr. Tannin. Mr. McGarrigal was the third portfolio manager for the Funds, along with Mr. Tannin and Mr. Cioffi. Mr. McGarrigal has never been alleged to be a co-conspirator. See Letter from AUSA Patrick Sinclair dated May 8, He is on the government s priority witness list. Ms. Redlich represents him in connection with the criminal investigation as well as in multiple civil suits and arbitrations relating to the Funds closing. Mr. McGarrigal and Mr. Tannin, through their respective counsel, Ms. Redlich and Ms. Beattie, had a joint defense agreement during the period for which the government seeks to introduce Ms. Redlich s testimony. Ms. Redlich has informed the government in writing that the testimony it seeks from her is covered by the joint defense agreement. Undeterred, the government has subpoenaed Ms. Redlich to testify. The government proposes to elicit testimony from Ms. Redlich regarding the circumstances surrounding the discovery and production of the April 22, 2007 Gmail. A. Ms. Redlich s Testimony Is Not Probative as to Consciousness of Guilt It is undisputed that Mr. Tannin did not destroy the Gmail. It is undisputed that Mr. Tannin, via counsel, produced to counsel for Bear Stearns the copy of the Gmail that the government has marked as Government Exhibit 55 and that counsel for Bear Stearns, in turn, 7

11 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 11 of 17 produced the document to the SEC and the U.S. Attorney s office. Because these facts are inconvenient, the government proposes to introduce Ms. Redlich s testimony, along with testimony about Mr. Tannin s prior non-disclosure of the Gmail to counsel for Bear Stearns, to suggest[] that Tannin produced the G-Mail only after being advised that it was going to be produced anyway. (Gov t Opposition to Motion to Exclude ( Gov t Opp. ) at 3.) This is precisely the kind of unsupported suggestion that the Second Circuit instructs is not probative of consciousness of guilt and thus not admissible. We gather based on the government s September 25, 2009 papers that the government contends Ms. Redlich would help establish a chronology of events regarding the discovery and production of the Gmail. Specifically, the government asserts (1) that Ms. Redlich was aware of an SEC request for production of relevant s from personal accounts; (2) that Mr. McGarrigal discovered the Gmail and gave it to her on November 6, 2007; (3) that Ms. Redlich spoke with Ms. Beattie twice on November 6, 2007, to indicate her intention to produce the G- Mail to BSAM s attorneys; and (4) that Ms. Redlich and Ms. Beattie together produced the Gmail to counsel for Bear Stearns on November 7, (Gov t Opp. at 4 n.3.) None of the proposed testimony concerning the actions of counsel is remotely probative of Mr. Tannin s supposed consciousness of guilt of the crimes charged. This attenuated narrative does not even support the series of inferences about Mr. Tannin s allegedly guilty mind that the government urges. The government has no factual predicate to sturdily support[ ] that (1) Mr. Tannin s prior nondisclosure of the Gmail (2) was an effort to suppress evidence (3) because of his consciousness of guilt of the crimes charged and (4) actual guilt of the crimes charged. See United States v. Al-Sadawi, 432 F.3d 419, 424 (2d Cir. 2005) (quoting United States v. Beahm, 3 We do not adopt the government s proffered chronology. 8

12 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 12 of F.2d 414, 420 (4th Cir. 1981)). The government has not offered a sufficient factual predicate to suggest that the fact that Mr. Tannin had not produced the Gmail by any specific date in response to an informal SEC request in late October 2007 was an effort to suppress evidence. The SEC agreed to rolling productions in response to its informal document request, and no productions had yet been made. And nothing that the government offers can remotely tie the alleged nondisclosure to a guilty mind, let alone a guilty mind about the crimes charged. The only thing that a chronology might establish is that Mr. McGarrigal found the Gmail first. Mr. McGarrigal also did not produce it during earlier phases of the investigation. But such proof obviously does not establish any inference of a guilty mind on Mr. McGarrigal s part. Indeed, presumably, that is the government s position, as he is not alleged to be a co-conspirator. A prior failure by Mr. Tannin to disclose the Gmail to Bear Stearns (just as any similar failure by Mr. McGarrigal) is properly subject to an inference of innocuous behavior namely, a failure of recollection of one out of many thousands of s. See Al-Sadawi, 432 F.3d at 424. Accordingly, neither Ms. Redlich nor Ms. Beattie should be trial witnesses. B. Because Ms. Redlich s Testimony Would Disclose the Substance of Joint Defense Communications, it is Privileged and Inadmissible The government contends it is entitled to use Ms. Redlich s testimony to rebut any suggestion made by Mr. Tannin that he voluntarily produced the document. Mr. Tannin is entitled to call attention to the undisputed facts. See United States v. Diozzi, 807 F.2d 10, 14 (1st Cir. 1986) ( Defense counsel cannot be subject to disqualification arguing their clients positions on statements that are in evidence. ). But the government may only rebut the inferences with non-privileged testimony. The government is prohibited from seeking to offer Ms. Redlich s proposed testimony because it is privileged and, thus, inadmissible. 9

13 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 13 of 17 The government claims that nothing Ms. Redlich will say about her conversations with Tannin s counsel is subject to the attorney-client privilege or the work product doctrine. (Gov t Opp. at 4.) The government ignores that there was a valid joint defense agreement. An essential benefit of a joint defense agreement is that no participating party can reveal shared communications without the consent of the other parties. In other words, none of the parties to the agreement may unilaterally waive the privilege. Lugosch v. Congel, 219 F.R.D. 220, 238 (N.D.N.Y. Dec. 16, 2003). Mr. Tannin has not waived the privilege, and Ms. Redlich cannot be required to do so or deemed to have done so on her own. Should Ms. Redlich be required to testify about her conversations with Ms. Beattie, it would be in clear violation of a valid joint defense privilege. Thus, even if it were concluded that the fact that Ms. Redlich spoke with Ms. Beattie was non-privileged and admissible, the substance of their conversations unquestionably would be privileged and inadmissible. See, e.g., Ispat Inland, Inc. v. Kemper Environmental, Ltd., No. 05 Civ. 5401, 2007 WL , at *3 (S.D.N.Y. Jul. 31, 2007) (noting that discussions between attorneys with a joint defense agreement were protected as joint work product ); Lugosch, 219 F.R.D. at 240 ( [J]ust at the common interest doctrine, also known at the joint defense privilege, does not waive the attorney-client privilege when those communications are shared with coparties, likewise, the mutual sharing of strategies, mental impressions, and/or attorneys thoughts and theories with co-parties, deserves the same or similar protection. ). Mr. McGarrigal has long been on the government s witness list. Presumably he could testify about the circumstances of his identifying the Gmail and turning it over to counsel. That the Gmail was turned over to Bear Stearns counsel, first by counsel and Ms. Redlich calling counsel to Bear Stearns to advise them that it would be produced, and then by Ms. 10

14 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 14 of 17 Beattie s producing it, if need be, can readily be established without Ms. Redlich or Ms. Beattie testifying. Ms. Redlich s testimony is both irrelevant and privileged. Ms. Redlich cannot speak to Mr. Tannin s state of mind or intention on anything. Ms. Redlich could testify only about privileged discussions between herself and Mr. Tannin s counsel, and there is no reasonable scenario under which counsel s mental processes should be at issue in this trial. And, because Ms. Beattie is not a necessary witness, there is no conflict and thus no reason to seek a waiver. II. THE GOVERNMENT SHOULD BE PRECLUDED FROM OFFERING EVIDENCE REGARDING THE CLOSURE OF MR. TANNIN S GMAIL ACCOUNT A. Because Mr. Tannin s Gmail Account Was Closed on Advice of Counsel, Evidence Concerning the Closure Has No Probative Value There is simply no evidence to support the claim that, by the closure of his account, Mr. Tannin did anything improper. We state that Mr. Tannin s Gmail account was closed upon advice of counsel for the limited purpose only of addressing the government s motion and without otherwise waiving any attorney-client privilege or constitutional right. Because Mr. Tannin s account was closed upon advice of counsel, and its contents, if any, were appropriately secured and preserved, the closure of the account has no bearing whatsoever on Mr. Tannin s state of mind, other than to comply with his counsel s advice, and thus has no probative value as to consciousness of guilt. Testimony on this issue should be precluded under Federal Rules of Evidence 104, 401, and 402. As we have repeatedly informed the government and represented to the Court, prior to closing the account in March 2008, Mr. Tannin and his counsel took appropriate steps to secure and preserve all s within the account, including s, if any, potentially responsive to the pending SEC subpoena. 11

15 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 15 of 17 As outlined in our letter of September 21, 2009, the letter from Google dated July 17, 2009, does not say what the government claimed it did when addressing the Court at the conference on September 17, In its latest papers, the government persists in making the false and inflammatory allegation that Mr. Tannin somehow deleted documents by closing his account. See Gov t Mot. at 5 (claiming that by closing the account, Mr. Tannin thereby deleting all the original electronic documents in the possession of a third party ); Gov t Opp. at 4-6. The government s theory, that closing an account actually is tantamount to deletion and, if so, that Mr. Tannin knew that closing the account was tantamount to deletion, is untenable. The publicly available Google policy is to the contrary. See Google policy, available at There is no authority and the government cites none for the proposition that a person under subpoena must keep his personal account at a third-party server open and active in perpetuity. Nor does the law require a person under subpoena to notify the government of his intention to close a personal account. B. Admitting Evidence of the Account s Closure Would Violate Mr. Tannin s Fifth and Sixth Amendment Rights Permitting the government to insinuate without basis that Mr. Tannin intentionally destroyed or concealed s would also intrude upon Mr. Tannin s fundamental Fifth and Sixth Amendment rights and be unfairly prejudicial. Proof regarding Mr. Tannin s assertion of act-of-production privilege which would be essential to refute the government s insinuations that Mr. Tannin destroyed and/or withheld documents in response to the SEC subpoena would directly infringe on his Fifth Amendment right to silence. The government is prohibited from suggest[ing] [at trial] that the defendant has any burden of proof or any obligation to adduce any evidence whatever. United States v. 12

16 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 16 of 17 Parker, 903 F.2d 91, 98 (2d Cir. 1990); see also United States v. Bautista, 23 F.3d 726, 733 (2d Cir. 1994) ( The government may not, however, go further and suggest that the defendant has the burden of producing evidence. ); Hawkins v. LeFevre, 758 F.2d 866, 876 (2d Cir. 1985) (post-arrest silence insolubly ambiguous because decision to remain silent may be made at the suggestion of counsel or may signify nothing more than a choice to invoke legal rights). Nor may the government insinuate without basis that its own lack of evidence is the result of the defendant s failure to cooperate and/or his consciousness of guilt. Here, any testimony regarding closure of the Gmail account would clearly invite the jury to speculate improperly and impermissibly that Mr. Tannin improperly failed to fulfill non-existent obligations. As the government well knows, notwithstanding the fact that it has positioned itself as requesting only a Curcio hearing, if the Court were to permit testimony regarding Mr. Tannin s closure of his Gmail account, then Mr. Tannin s trial counsel would become a potential trial witness to the circumstances surrounding the account s closure and the preservation of its contents, if any. The Court then would be obligated to disqualify counsel unless it could come up with an alternative remedy to avoid trial counsel s testimony and at the same time protect Mr. Tannin s rights. Though disqualification might solve the conflict-of-interest issue, it would not cure the Fifth Amendment violation and moreover would impair Mr. Tannin s ability to have counsel of his choice. Evidence of the advice of counsel defense would necessarily include the basis for that advice, which would include the fact that the contents of the Gmail account, if any, were properly preserved by Mr. Tannin and his counsel and properly withheld under the Fifth Amendment. In short, evidence regarding closure of the account cannot be admitted either now or at a future-scheduled trial without violating Mr. Tannin s rights. 13

17 Case 1:08-cr FB Document 192 Filed 09/29/09 Page 17 of 17 CONCLUSION There is no reason for the Court to let the trial of this case become sidetracked with these kinds of collateral issues. Given the irrelevance of the evidence the government proposes regarding the discovery and production of the Gmail and the closure of Mr. Tannin s Gmail account, such a diversion would be a significant waste of time and would come at considerable cost. The Court should prohibit the government from manufacturing a conflict in this case. The testimony of Ms. Redlich and evidence regarding the closure of Mr. Tannin s Gmail account should be excluded. Dated: New York, New York September 29, 2009 Respectfully submitted, BRUNE & RICHARD LLP By: /s/ Susan E. Brune Susan E. Brune Nina M. Beattie MaryAnn Sung BRUNE & RICHARD LLP 80 Broad Street New York, New York (212) (telephone) (212) (fax) sbrune@bruneandrichard.com Attorneys for Defendant Matthew Tannin 14