Plaintiff, Defendants. MEMORANDUM IN SUPPORT OF OMNIBUS MOTION

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART x THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, Indictment Number 773/2014 -against- STEVEN DAVIS, STEPHEN DICARMINE, JOEL SANDERS, and ZACHARY WARREN, Defendants. MEMORANDUM IN SUPPORT OF OMNIBUS MOTION

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii INTRODUCTION...7 POINT I POINT II THE COURT SHOULD INSPECT THE GRAND JURY MINUTES AND DISMISS COUNTS THAT ARE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE... 8 A. The Court Should Dismiss The Grand Larceny Counts (Counts Two Through Sixteen) The Court Should Dismiss the Private Placement Funds Counts (Counts Two Through Fourteen) The Court Should Dismiss the Line o f Credit Counts (Counts Fifteen and Sixteen)...13 B. The Court Should Dismiss the Falsifying Business Records Counts (Counts Seventeen through One Hundred and Four) The Court Should Dismiss Counts 17 through 104 Because The Defendants Did Not Intend To Commit, Aid Or Conceal Another C rim e The Court Should Dismiss Counts 72 through 74 and 78 through 104 Because the Records Do Not Relate to the Condition or Activity of the Recipient Entities The Court Should Dismiss the Indictment As To a Defendant If the Evidence Does Not Demonstrate That He Acted With the Requisite Knowledge and Intent To Commit the Crimes Charged THE COURT SHOULD EXAMINE THE LEGAL INSTRUCTIONS GIVEN TO THE GRAND JURY ON SUBSTANTIVE AND EVIDENTIARY MATTERS, AND DISMISS ANY COUNT OF THE INDICTMENT AGAINST ANY DEFENDANT WHO WAS PREJUDICED BY INCORRECT, INCOMPLETE OR REQUIRED INSTRUCTIONS THAT WERE NOT GIVEN A. Instructions Concerning Accounting Issues Backdated Checks Reversing Disbursement Write-Offs Knowledge And Intent...26 B. The Use of Purported Co-Conspirators Statements in The Grand Jury...27 POINT III THE COURT SHOULD STRIKE FROM THE INDICTMENT ANY SPEAKING PORTION OF THE INDICTMENT NOT EXPRESSLY VOTED BY THE GRAND JURY AND ALSO ALL INFLAMMATORY, PREJUDICIAL LANGUAGE... 28

3 A. The Court Should Strike Language of a Speaking Indictment If The Grand Jury Did Note Vote to (1) To Approve the Speaking Language and (2) to Include It In the Indictment...29 B. The Court Should Strike Language That Is On Its Face Inflammatory, Prejudicial and Prohibited...30 POINT IV THE COURT SHOULD DISMISS COUNT ONE BECAUSE IT IS MULTIPLICITOUS...32 POINT V THE COURT SHOULD REVIEW THE GRAND JURY MINUTES AND DISMISS THE INDICTMENT IF THE DISTRICT ATTORNEY DID NOT GIVE ALL LEGALLY REQUIRED INSTRUCTIONS, GAVE INCORRECT OR INCOMPLETE LEGAL INSTRUCTIONS WITH RESPECT TO THE GRAND JURY S OPERATIONS, OR IF THE GRAND JURY S FORMATION AND PROCEEDINGS DID NOT COMPORT WITH LA W...33 A. The Court Should Dismiss the Indictment If the Law Regulating Which Grand Jurors Were Permitted To Vote Was Not Followed...33 B. The Court Should Dismiss the Indictment If the Grand Jury That Voted To Return It Was Not Legally In Existence...35 POINT VI THE COURT SHOULD DIRECT THE PEOPLE TO PROVIDE THE DISCOVERY AS WELL AS THE BILL OF PARTICULARS REQUESTED BY THESE DEFENDANTS...36 CONCLUSION...44

4 TABLE OF AUTHORITIES CASES Boyd v. United States, 908 A.2d 39 (D.C. 2006) Brady v. Maryland, 373 U.S. 83 (1963) Canelo v. C. I. R., 447 F.2d 484 (9th Cir. 1971)...25 Kunze v. C.I.R., 19 T.C. 29 (1952), a ff d, 203 F.2d 957 (2d Cir. 1953)...24 Loose v. United States, 74 F.2d 147 (8th Cir. 1934)...23 People v. Aarons, 296 A.D.2d 508 (2d Dep t 2002) People v. Alonzo, 16 N.Y.3d 267 (2011)... 32,33 People v. Bac Tran, 80 N.Y.2d 170(1992)...27 People v. Banks, 150 Misc.2d 14 (Sup. Ct. Kings Cnty. 1991) 17, 19, 20 People v. Bel Air Equip. Corp., 46 A.D.2d 773 (2d Dep t 1974), a ffd, 39 N.Y.2d 48 (1976) People v. Bolden, 194 A.D.2d 834 (3d Dep t 1993) People v. Brinkman, 309 N.Y. 974,(1956)...33 People v. Caban, 5 N.Y.3d 143 (2005)...i People v. Cannon, 210 A.D.2d 764 (3d Dep t 1994) People v. Cartwright, 293 A.D.2d 882 (3d Dep t 2002) People v. Collier, 72 N.Y.2d 298 (1988)... 33, 34, 35 People v. Collins, 12 A.D.3d 33 (1st Dep t 2004)...31 People v. Darrisaw, 206 A.D.2d 661 (3d Dep t 1994) People v. Diaz, 209 A.D.2d 1 (1st Dep t 1995)...27 iii

5 People v. Eun Sil Jang, 17 A.D.3d 693 (2d Dep t 2005) People v. Green, 188 A.D.2d 662 (2d Dep t 1993) People v. Harris, 181 Misc.2d 670 (Sup. Ct. Bronx Cnty. 1999) People v. Headley, 37 Misc.3d 815 (Sup. Ct. Kings Cnty. 2012)... 16, 17 People v. Is la, 96 A.D.2d 789 (1st Dep t 1983) People v. Jennings, 69N.Y.2d 103 (1986)... 9, 10 People v. Kim, 209 A.D.2d 167 (1st Dep t 1994) People v. Kirnon, 39 A.D.2d 666 (1st Dep t), a ff d, 31 N.Y.2d 877 (1972) People v. Kisina, 14 N.Y.3d 153 (2010) People v. Lancaster, 69 N.Y.2d 20( )... 11,22 People v. Linardos, 104 Misc.2d 56 (Sup. Ct. Queens Cnty. 1980) People v. Norman, 85 N.Y.2d 609(1995) People v. Norman, No. 6435/03, 2004 WL (Sup. Ct. Kings Cnty. Nov. 16, 2004)... 17, 18, 19 People v. O Neill, 285 A.D.2d 669 (3d Dep t 2001) People v. Osborne, 165 Misc.2d 900 (Sup. Ct. Kings Cnty. 1995)...33 People v. Papatonis, 243 A.D.2d 898 (3d Dep t 1997) People v. Pelchat, 62 N.Y.2d 97(1984)...22 People v. Perez, No. 2664/2000, 2001 WL (Sup. Ct. Queens Cnty. July 11, 2001) People v. Perry, 199 A.D.2d 889 (3d Dep t 1993) 34, 35 People v. Quinones, 8 A.D.3d 589 (2004)...32 People v. Reynolds, 147 A.D.2d 961 (4th Dep t 1989) iv

6 People v. Salko, 47 N.Y.2d 230, rearg. denied, 47 N.Y.2d 1010 (1979) People v. Saperstein, 2 N.Y.2d 210 (1957)...33 People v. Smalls, 81 A.D.3d 860 (2d Dep t 2011) People v. Tolbert, 198 A.D.2d 132 (1st Dep t 1993) People v. Townsend, 127 A.D.2d 505 (1st Dep t 1987) People v. Valles, 62 N.Y.2d 36 (1984) People v. Wade, 260 A.D.2d 946 (3d Dep t 1999) United States v. Agurs, 427 U.S. 97 (1976) United States v. Bagley, 473 U.S. 667 (1985)...38 Weatherford v. Bursey, 429 U.S. 545 (1977)...36 STATUTES AND OTHER AUTHORITIES 26 C.F.R (f) C.F.R l(c)(i) C.F.R (a)...23 CPL CPL (7)...22 CPL (1)... 13,27 CPL (7)(a) CPL (5)..., CPL (l)(b)...8 CPL (l)(c)...11 CPL (1)... 8 CPL CPL (3)... 8 CPL (5) CPL (l)(a)... 36,38 CPL (l)(c) N.Y. Const. Art. I, NYUCC NYUCC 3-114(a)... 24

7 NYUCC 3-114(2) Penal Law , 26 Penal Law , 26 Penal Law , 26 Penal Law (1)...27 Penal Law (1)... 9 Penal Law (3)... 9 Penal Law (4)... 9 Penal Law (1)...20 Penal Law (2)(a) Penal Law (2)(d)...12, 13 Penal Law (2) Penal Law Penal Law N.Y. Prac. Criminal Law 12:5 (3d ed.)...9 I.R.S. TAM (Aug. 12,1994)...25 Donnino, Practice Commentary, McKinney s Consol. Laws (2010)...9 Preiser, Practice Commentary, CPL , McKinney s Consol. Laws, Book 11A (2007)... 28,33

8 INTRODUCTION This memorandum of law is submitted on behalf of defendants Steven Davis, Stephen DiCarmine, and Joel Sanders in support of their omnibus motion. The motion asks the Court to grant several different forms of relief. The investigation leading to this prosecution was instigated in April 2012 by some disaffected partners of Dewey & LeBoeuf ( D&L ) who sought to blame the financial travails of D&L on the management of the firm, ignoring the fact the firm s distress was caused by a combination of The Great Recession, the voracious greed of some o f the firm s partners, the decisions of several key partners to defect, and the publicity engendered by the District Attorney s investigation that torpedoed an impending merger with another law firm, as well as D&L s ongoing negotiations with its lenders to renew its credit facility. While some former employees of D&L have pleaded guilty to various crimes that they apparently believe that they committed at D&L, the Court should not let the defendants in this case become the scapegoats for things these defendants did not do or approve. A review of the grand jury minutes will demonstrate the many reasons why the Court may, and should, dismiss the current indictment. For the reasons that follow, the defendants respectfully request that the Court inspect the grand jury minutes and, upon inspection: (1) dismiss Counts One (scheme to defraud) and One Hundred and Five (Martin Act) based on the defendants lack of the requisite knowledge and intent; (2) dismiss Counts Two through Sixteen (grand larceny) based on the defendants lack of intent to permanently deprive their lenders of property; (3) dismiss Counts Seventeen through One Hundred and Four (falsifying business records) because they rely on the legally insufficient grand larceny counts and certain of the counts do not relate to business records to which this offense applies; and (4) dismiss all counts as necessary to address inadequate instructions or 7

9 other flaws in the grand jury presentation. The defendants further request that the Court direct the District Attorney to comply with the defendants valid demands for discovery and request for a bill of particulars.1 POINT I THE COURT SHOULD INSPECT THE GRAND JURY MINUTES AND DISMISS COUNTS THAT ARE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE The Court should inspect the record of the proceedings before the grand jury, and upon inspection dismiss various counts of the indictment that are not supported by legally sufficient evidence. See CPL (l)(b), (1) and The defendants appreciate that the Court has already asked to have the grand jury minutes provided to it and so may have already reviewed them. While the Court may have already noted deficiencies in the record, Messrs. Davis, DiCarmine and Sanders respectfully ask the Court to pay particular attention to issues raised here as it continues its review. The defendants also ask the Court to release the minutes to them so that they may assist the Court in making its determination on this motion. CPL (3). Release of the minutes is particularly appropriate given the complexity of the accounting instructions as detailed infra. A. The Court Should Dismiss The Grand Larceny Counts (Counts Two Through Sixteen! The indictment alleges that in April 2010, D&L refinanced its debts with a $150 million private placement of securities with 13 bondholders (insurance companies). Counts Two through Fourteen accuse the defendants of grand larceny in the first degree and are based on the Each defendant adopts the arguments made in separate motions to dismiss filed individually by these defendants and co-defendant Zachary Warren to the extent that the arguments in support of those motions are applicable to each defendant and redound to his benefit. 8

10 alleged thefts from those bondholders. The evidence before the grand jury could not possibly satisfy the intent element of grand larceny, and therefore the Court should dismiss these counts. A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof. PL (1). Unlike th e taking element, which is satisfied by the temporary exercise of dominion and control over property, the intent required for larceny is to bring about a permanent, or virtually permanent, change in the control o f or benefit from the property. 6 N.Y. Prac. Criminal Law 12:5 (3d ed.). The statute defines to deprive property as: (a) to withhold it or cause it to be withheld from him permanently or for so extended a period of time or under such circumstances that the major portion of its economic value or benefit is lost to him, or (b) to dispose of the property in such manner or under such circumstances as to render it unlikely that the owner will recover such property. PL (3). Similarly, to appropriate is defined as: (a) to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (b) to dispose of the property for the benefit of oneself or a third person. PL (4). These provisions of the Penal Law are crystal clear - larceny requires the intent to deprive the owner of its property permanently. As the Court of Appeals held in People v. Jennings, [t]he mens rea element of larceny... is simply not satisfied by an intent temporarily to use property without the owner s permission, or even an intent to appropriate outright the benefits of the property s short-term use. 69 N.Y.2d 103, 119 (1986) (emphasis added). Rather, the concepts o f deprive and appropriate, which are essential to a definition of larcenous intent, connote a puipose... to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner 9

11 of the possession and use thereof. Id. at 118 (emphasis added); Donnino, Practice Commentary, McKinney s Consol. Laws, (2010) (same); see also People v. Kirnon, 39 A.D.2d 666, 667 (1st Dep t) ( To deprive is defined in terms of intent to withhold or exercise control permanently or long enough to acquire or deprive the owner of the major portion of the property s economic value or dispose of it for the benefit of the thief or another or under circumstances rendering it unlikely that the owner will recover it (P.L (3) and (4)). ), a ff d, 31 N.Y.2d 877 (1972). The Jennings Court made clear, moreover, that where an entity has ceded possession of its money to another, it has no right to the economic value or benefit of the money during the period the other had its use. Jennings, 69 N.Y.2d at The Court Should Dismiss the Private Placement Funds Counts (Counts Two Through Fourteen) With this law made plain, it is apparent the grand larceny charges were insufficiently supported before the grand jury. Counts two through fourteen rest on the money the defendants are accused of having stolen via the firm s private placement. As part of this private placement, the firm received a total of $150 million from the investing bondholders in exchange for notes that obligated the firm to pay the principal back at certain set dates and interest at certain set intervals.2 The evidence before the grand jury cannot possibly satisfy the intent element of grand larceny, and therefore the Court should dismiss these counts. If the prosecutors presentation to the grand jury was fair and thorough, the evidence before the grand jury demonstrates beyond any doubt that: The first principal payment on the private placement notes would not become due until April 16, 2013, which was after D&L filed for bankruptcy and which occurred more than two years after the firm obtained the money; 2 The principal payments on the notes were due on April 16, 2013; April 16, 2015; April 16, 2017; and April 16,

12 During those two years every interest payment on the notes was made timely; D&L was on the brink of merging with another law firm when the District Attorney s investigation was made public (not by these defendants), scotching the merger as well as its negotiations to refinance its credit facility, and destroying any possibility of repaying the notes when they eventually would become due; and These defendants did not take the firm into bankruptcy causing it to default; others made that decision after these defendants were relieved of any authority at the firm. If the prosecutors did not present that exculpatory evidence to the grand jury, this is the rare case where the failure to present exculpatory evidence to the grand jury has resulted in a legally defective presentation, requiring the dismissal of the indictment or at minimum these counts o f the indictment. CPL (l)(c); (5). The test for when a prosecutor must present legally exculpatory evidence to a grand jury turns on the potential of the exculpatory evidence to make out a complete defense or to eliminate a needless or unfounded prosecution. People v. Valles, 62 N.Y.2d 36, 38 (1984); see also People v. Lancaster, 69 N.Y.2d 20, 26 (1986). Where the evidence makes out a complete defense or eliminates a needless or unfounded prosecution, the prosecution s failure to present that evidence dictates the dismissal of the indictment. Valles, 62 N.Y.2d at 38. Applying this principle here, dismissal of the grand larceny counts is necessary because there could have been no evidence before the grand jury that when D&L obtained the money via the private placement any of these three defendants intended that the money would not be repaid with interest when due. Even if the evidence showed that the defendants undertook to obtain the private placement funds wrongfully (which the evidence will not show), without proof in the grand jury that they did so with the intent to never pay the funds back, the grand larceny charges cannot be sustained. For example, in People v. Bolden, the Third Department reversed a 11

13 conviction for attempted grand larceny in the third degree based on an attempt to obtain a loan by fraud because, inter alia, [t]he evidence establishe[d] that defendant intended to obtain the loan, but whether he intended to repay it [wa]s purely a matter of speculation. 194 A.D.2d 834, 836 (3d Dep t 1993). Here, there can be no evidence before the grand jury that these three defendants intended to bring about a permanent or virtually permanent change in the control of or in the benefit from the property. The grand jury should have been provided with evidence demonstrating that these three defendants fully intended at the time the private placement was effectuated for D&L to make all required interest and principal payments when due. Permitting this private placement to give rise to a grand larceny under these circumstances would ignore Sections (1), (3) and (4), overrule Jennings and its progeny, and allow any unpaid loan to become the potential basis for a larceny prosecution. That result eviscerates well-established law. The defendants request that the Court scrutinize the grand jury minutes for evidence of a permanent intent to deprive; they submit that the Court will find none. Then the Court should dismiss these counts. In addition to the lack of evidence on intent to permanently deprive, if the grand larceny charges were based on the theory o f grand larceny by false promise, Messrs. Davis, DiCarmine and Sanders submit that the grand jury minutes also lack evidence o f the particularized requirements o f that charge. PL (2)(d) provides that: [i]n any prosecution for larceny based upon a false promise, the defendant's intention or belief that the promise would not be performed may not be established by or inferred from the fact alone that such promise was not performed. Such a finding may be based only upon evidence establishing that the facts and circumstances of the case are wholly consistent with guilty intent or belief and wholly inconsistent with innocent intent or belief, and excluding to a moral certainty every hypothesis except that of the defendant's intention or belief that the promise would not be performed. 12

14 PL (2)(d).3 While moral certainty is a standard only to be applied by the finder of fact, in order to return a valid true bill, the grand jury still must have had before it competent evidence which, if accepted as true, would establish every element of [the] offense charged, CPL (1), including that the defendants harbor[ed] a present intention not to perform when they made the promises at issue here. People v. Norman, 85 N.Y.2d 609, 619 (1995) (larceny by false promise is limited to situations in which an individual has made a promise while harboring a present intention not to perform ) (emphasis added). Such proof was lacking here. The minutes cannot demonstrate that at the time D&L received the private placement funds, these defendants did not intend for D&L to fulfill the promises it made to obtain the funds or that they did not believe that D&L would fulfill those promises. D&L used the funds for their stated purpose, made interest payments and recorded the loan all conduct totally inconsistent with a present intention to deprive the investors of their funds permanently. See People v. Reynolds, 147 A.D.2d 961, 963 (4th Dep t 1989) (finding use of funds for a stated puipose, recording loans, and making interest payments inconsistent with proof to a moral certainty that defendant never intended to repay the[] loans ). Thus, to the extent the grand jury s indictment rested on a theory of larceny by false promise, the evidence would have been insufficient on that ground as well. 2. The Court Should Dismiss the Line of Credit Counts (Counts Fifteen and Sixteen) Counts Fifteen and Sixteen accuse Messrs. Davis, DiCarmine and Sanders of grand larceny in the first degree, apparently as a result of D&L obtaining lines of credit from two giant 3 A person obtains property by false promise when, pursuant to a scheme to defraud, he obtains property of another by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct, and when he does not intend to engage in such conduct or, as the case may be, does not believe that the third person intends to engage in such conduct. PL (2)(d). 13

15 banks (Bank of America and HSBC USA) over an extended period of time. As is the case with respect to the counts based on the private placement, the evidence before the grand jury could not have demonstrated that these defendants intended permanently to deprive the banks of property by drawing down the lines of credit; on the contrary, if the presentation to the grand jury was fair and thorough, the evidence would have demonstrated that drawdowns on the lines of credit occurred as required yearly, and that until the firm filed for bankruptcy, the banks lost no money. Similarly, no evidence could have been before the grand jury that demonstrated that when each line of credit was secured or renewed, or when each drawdown on a line occurred, these defendants had the intent for D&L to fail to fulfill the commitments the firm had made to the banks. Moreover, if the grand jury presentation was fair and thorough, it demonstrates that drawdowns the firm made in 2012, prior to filing for bankruptcy, were made at the direction of several partners on the firm s Operations Committee, and against the advice of Mr. Sanders, and despite the concerns of Mr. Davis and objections raised by Mr. DiCarmine. Thus, the Court should dismiss these grand larceny counts for the same reasons that it should dismiss the private placement counts. B. The Court Should Dismiss the Falsifying Business Records Counts (Counts Seventeen through One Hundred and Four) The indictment contains 88 separate counts of Falsifying Business Records in the First Degree, in violation of PL Indictment, Counts Each of the 88 counts is pled with the standard language that the defendant(s) charged in the count committed the acts with intent to defraud and to commit another crime and to aid and conceal the commission thereof. 14

16 Id, The other crime is not specified, although to the extent it is the grand larcenies charged elsewhere in the Indictment, all 88 Falsifying Business records counts must be dismissed.4 In addition, while 58 of the 88 false business records counts relate to D&L s own business records,5 the other 30 counts relate to the purported business records of entities other than D&L, including D&L s accounting firm, banks and bondholders.6 Included in these 30 counts were the management representation letters to Ernst & Young ( E&Y ) (Indictment, Counts 72-74) and compliance certificates that D&L was required to provide to various large banks, among other entities (Indictment, Counts ). But because they relate to the financial condition o f D&L, not the business entities who received them, even if these counts survive dismissal in light of their nexus to grand larceny, they must be dismissed on this basis. 1. The Court Should Dismiss Counts 17 through 104 Because The Defendants Did Not Intend To Commit, Aid Or Conceal Another Crime Counts 17 through 104 charge one or more defendants with violating Penal Law , which criminalizes the falsification of business records with the intent to defraud, which must include an intent to commit another crime or aid or conceal the commission of another crime. The defendants lacked the requisite intent to commit grand larceny for the simple reason that they did not intend to deprive the banks and bondholders of the permanent possession of property. To the extent the indictment relies on the alleged larcenies as the other crime, all of the false business record counts are legally defective. See People v. Perez, No. 2664/2000, The defendants tried to have the prosecution identity the other crimes by serving a Request for a Bill of Particulars for that information on May 28, The prosecution denied the request in a cursory response dated June 13, 2014, stating that such information is evidentiary - despite being a statutory element of the charge. 5 Indictment, Counts 17-71, Indictment, Counts 72-74,

17 WL , at *4 (Sup. Ct. Queens Cnty. July 11, 2001) (holding that the dismissal of counts related to the other crime[s], negates an essential element of the counts charging Falsifying Business Records in the First Degree, requiring the dismissal of the Falsifying Business Records counts). Moreover, certain of those counts allege that the defendants caused false entries to be made in the business records of JPMorgan Chase Bank, N.A. ( JPMorgan ); Citibank N.A. ( Citibank ); Barclays Bank PLC ( Barclays ); and Wells Fargo Bank, N.A. ( Wells Fargo ), despite the fact that none of those banks are alleged to be the victim of any grand larceny or other crime charged in the Indictment. Indictment, Counts Those counts must therefore be dismissed on this alternative ground. See People v. Headley, 37 Misc.3d 815, 833 (Sup. Ct. Kings Cnty. 2012) (dismissing charges of falsifying business records in the first degree where there was no evidence the defendant committed grand larceny against the entity that received the records). 2. The Court Should Dismiss Counts 72 through 74 and 78 through 104 Because the Records Do Not Relate to the Condition or Activity of the Recipient Entities Counts 72 through 74, which relate to the management representation letters sent to E&Y, and Counts 78 through 104, which relate to the compliance certificates sent to the banks and bondholders, charge the defendants (in various combinations) with causing false entries to be made in the business records of an entity other than D&L.7 These counts rest on the contention that the defendants submitted records reflecting the financial condition of D&L to outside entities. But the Penal Law clearly defines a [bjusiness record as any writing or article... 7 While the Indictment indicates which entities have the allegedly false business records, it does not identify the false business records themselves. Those were later identified in the prosecution s Voluntary Disclosure Form ( VDF ) as either a D&L management representation letter or a D&L year-end compliance certificate. See VDF, at 3. 16

18 kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity. PL (2) (emphasis added). A business record can only evidence or reflect an enterprise s condition or activity when it is made in the enterprise s own financial books and records. See People v. Bel Air Equip. Corp., 46 A.D.2d 773, 774 (2d Dep t 1974) (a moving company s duplicate copies of inflated payment vouchers were not business records because [n]o false entry was made in any business journal or book of account ), a ff d, 39 N.Y.2d 48 (1976). The D&L records at issue here thus could only qualify as the business records within the purview of the statute if those records evidence or reflect the financial condition or activity o f the recipient enterprises. Indeed, New York courts have repeatedly dismissed false business records charges where, as here, the underlying records do not reflect the recipient enterprises own financial condition or activity. See, e.g., People v. Norman, No. 6435/03, 2004 WL , at **7-9 (Sup. Ct. Kings Cnty. Nov. 16, 2004) (re-election committee s false contribution report did not reflect the condition or activity of the recipient New York State Board of Elections); People v. Papatonis, 243 A.D.2d 898, 899 (3d Dep t 1997) (false employment application did not constitute the hiring company s business record because, although kept on file, it did not reflect the condition or activity o f the company). Likewise, the courts have dismissed such charges where the submission of documents to a separate entity did not give rise to a financial obligation on the recipient s part. See, e.g., Headley, 37 Misc.3d at 832 (false business proposal and W-9 submitted to the New York City Transit Authority did not reflect the Authority s condition or activity because they did not reflect a financial obligation on the Authority s behalf); People v. Banks, 150 Misc.2d 14, 18 (Sup. Ct. Kings Cnty. 1991) (fraudulent audit and statement o f organization submitted to charities for 17

19 funding did not reflect the condition or activity of the recipient charities because they did not create any obligations to pay on the charities part); cf. People v. Kisina, 14 N.Y.3d 153, (2010) (physician s false insurance claims constituted insurance company s business records because the company s financial condition is affected by [the] false submissions, as they give rise to liabilities under its policies[,]... specifically, its legal obligation to reimburse medical providers for services ); People v. Linardos, 104 Misc.2d 56, 59 (Sup. Ct. Queens Cnty. 1980) (surgeon s false insurance claim forms constituted the insurance company s business records because the forms evidenced and were intended to evidence in the records of [the insurance company] its obligation to pay the physician for surgery performed ). a. The Management Representation Letters in Counts 72 through 74 Counts 72 through 74 of the Indictment charge that, in 2009 through 2011, Davis and Sanders made and caused a false entry into the business records of [ E&Y ] by submitting to E&Y falsified management representations containing various statements about D&L s financial condition, in connection with E&Y s annual audit of D&L s financial statements. But those letters plainly reflected the financial condition and activity of D&L, not of E&Y, and they cannot therefore be the basis of false business record charges. Indeed, the management representation letters state that the representations are provided as part of the audit process to enable EY to form an opinion whether D&L s financial statements were presented fairly in conformity with a tax basis of accounting. Documents do not become the business records of the recipient merely because the recipient reviews them for compliance purposes. In Norman, for example, a re-election committee submitted a false contribution report to the New York State Board of Elections, which relied on the contribution report to ensure that the committee complied with election laws WL at **7-9. The court held that the contribution report was not a business record of the Board of Elections because it reflected the 18

20 ... activity of the Committee, and not of the Board. Id. at *9. Similarly, the management representation letters here did not in any sense reflect E&Y s financial condition or activity. Nor did they give rise to any financial obligation of E&Y. Because the management representation letters that are the subject of Counts 72 through 74 do not constitute business records of E&Y, they must be dismissed. b. The Compliance Certificates in Counts 78 through 104 Counts 78 through 92 of the Indictment charge that each February from 2009 through 2012, Sanders made and caused a false entry in the business records o f several banks, including JPMorgan, Citibank, Barclays, Wells Fargo, Bank of America, N.A. and HSBC Bank USA, N.A. (the Banks ). Sanders is alleged to have signed compliance certificates that were sent to the Banks enclosing D&L s financial statements for the prior years and confirming that D&L was not in default under the relevant credit agreements. In April 2010, D&L also raised money through a bond offering, and in subsequent years Sanders sent the same or similar compliance certificates to the bondholders that subscribed to that bond offering (the Bondholders ). Counts 93 through 104 charge that, in 2011 and 2012, Sanders made and caused a false entry in the business records o f [the Bondholders]. Just as the management representation letters did not reflect the financial condition or activity of EY, the compliance certificates did not reflect the financial condition or activity of the Banks or Bondholders. Financial statement documents submitted in connection with loans are not business records of the recipient entity under New York law. In People v. Banks, 150 Misc.2d 14, for example, the defendant submitted a fraudulent audit and statement of the organization s finances in connection with funding and loan applications. The court rejected the notion that such documents are the business records o f the recipient organization, stating: 19

21 Only in the tautological sense that every piece of paper submitted to an enterprise by a person seeking to do business with it reflects the activity of that enterprise do the documents at issue here come within these statutes.... Under the People s overbroad construction, these Penal Law sections would apply to every loan application containing a false statement about the borrower that the bank or other lender puts in its files. Id, at 18 (emphasis in original). The compliance certificates reflect the financial condition o f D&L, the borrower not that o f the Banks or Bondholders. And, unlike the documents in Kisina and Linardos, the compliance certificates did not give rise to any further obligations to pay on behalf of the Banks or Bondholders. Because the compliance certificates do not constitute the business records of the Banks or Bondholders, Counts 78 through 104 o f the Indictment must be dismissed. 3. The Court Should Dismiss the Indictment As To a Defendant If the Evidence Does Not Demonstrate That He Acted With the Requisite Knowledge and Intent To Commit the Crimes Charged At its core, the validity of this indictment rests on the defendants knowledge and understanding of complex, arcane and nuanced accounting rules, regulations and practices, such as when IRS regulations and accounting standards permit disbursement write-offs to be reversed or antedated checks to be included in the previous year s income. See Point II, infra. For a defendant to be criminally liable, moreover, the prosecution must show that he had the requisite intent. For example, these defendants could not have committed grand larceny if they did not know that they were acting or did not intend to act wrongfully. PL (1). Nor could they have stolen money by false pretenses or falsified business records or engaged in a scheme to defraud by false or fraudulent pretenses if they did not know that representations or entries were false or fraudulent. PL (2)(a); ; Reaching these mentally culpable states in this case by necessity means an understanding of the complicated accounting rules and regulations at issue. But if the grand jury presentation was thorough and fair, the evidence will 20

22 show that none of these three defendants had that understanding. The evidence would have shown that none was a CPA or even an accountant, but rather that: Mr. Davis, who had an undergraduate degree in medieval history, had practiced energy law before he became D&L s chair, and had no training in accounting; Mr. Sanders, although CFO of the firm, was a non-practicing lawyer and not a CPA or even an accountant, and had no special training in law firm accounting; and Mr. DiCarmine, another non-practicing lawyer and not a CPA or even an accountant, had no training in accounting, and his responsibilities at D&L focused on personnel matters and operations and not accounting. In these circumstances, it is critical for the Court to scrutinize carefully whether the evidence in the grand jury demonstrates that each defendant had the requisite understanding o f the applicable accounting rules and regulations and legal accounting standards to know that the representations or entries at the bottom o f each separate charge was false or fraudulent. If the evidence does not establish that requisite knowledge and criminal intent, the Court should dismiss the indictment. PL 15.05, 15.15, POINT II THE COURT SHOULD EXAMINE THE LEGAL INSTRUCTIONS GIVEN TO THE GRAND JURY ON SUBSTANTIVE AND EVIDENTIARY MATTERS, AND DISMISS ANY COUNT OF THE INDICTMENT AGAINST ANY DEFENDANT WHO WAS PREJUDICED BY INCORRECT, INCOMPLETE OR REQUIRED INSTRUCTIONS THAT WERE NOT GIVEN A. Instructions Concerning Accounting Issues The indictment lists eight different fraudulent methods purportedly engaged in by the defendants as part of the scheme to defraud alleged in Count One. Indictment pp Each of these methods raises accounting issues. Clearly, the draftsperson of the indictment believed that these methods were fraudulent under some unarticulated accounting standard. Just as clearly, the grand jury should have been correctly and completely instructed on the governing 21

23 accounting standards and the law that determines whether various accounting treatments are permissible. While the prosecutor s discretion in presenting his case to the grand jury is broad, it is not unbounded, for it is settled that at a Grand Jury proceeding, the prosecutor performs the dual role of advocate and public officer, charged with the duty not only to secure indictments but also to see that justice is done; as a public officer he owes a duty of fair dealing to the accused and candor to the courts[.] People v. Lancaster, 69 N.Y.2d at 26; People v. Pelchat, 62 N.Y.2d 97, 105 (1984) (the prosecutor is charged with the duty not only to seek convictions but also to see that justice is done, including in the grand jury). This duty of fair dealing extends not only to the submission of evidence, but also to instructions on the law.... Lancaster, 69 N.Y.2d at 26. Thus, when the prosecutor instruct[s] the jury with respect to the significance, legal effect or evaluation of evidence, CPL (7), he must be guided by his duty of fair dealing to the accused. When he fails in this duty and his instructions are so deficient as to impair the integrity of the Grand Jury s deliberations, the resulting indictment must be dismissed. People v. Cannon, 210 A.D.2d 764, 766 (3d Dep t 1994). In this matter, this duty of fair dealing required the prosecutor to instruct the grand jury fairly on the differing accounting standards and law that determine whether the allegedly fraudulent account methods underlying every charge in the indictment were indeed fraudulent or whether they were permissible. If the grand jury had been properly instructed on these standards, it would have concluded that the accounting methods were permissible, and this needless [and] unfounded prosecution would have been avoided. Lancaster, 69 N.Y.2d at 27; see also People v. Darrisaw, 206 A.D.2d 661, 663 (3d Dep t 1994) ( To be sure, as an officer of the court the prosecutor has a duty to make a fair presentation to the Grand Jury, and to present 22

24 all evidence that could, if believed, avoid a needless or unfounded prosecution. ). At a minimum, the grand jury should have been instructed on the following legal standards regarding the following accounting issues. The defendants offer the following examples:8 1. Backdated Checks The indictment alleges that Messrs. Davis, DiCarmine, Sanders, and Warren sought backdated checks from clients to post to the prior year. (Indictment p. 5 f (f)). An instruction to the grand jury that the posting in D&L s books of checks bearing December dates, received in January, to the prior year s revenues is per se fraudulent would be a gross misstatement of the law. The grand jury should have been instructed that the Treasury Regulations applicable to accounts prepared on an income tax basis, as we understand D&L was, not only allow, but generally require any items constituting gross income to be included in the taxable year in which they were actually or constructively received. 26 C.F.R (c)(i) (emphasis added). The regulations further provide that: [ijncome although not actually reduced to a taxpayer s possession is constructively received by him in the taxable year during which it is credited to his account, set apart for him, or otherwise made available so that he may draw upon it at any time, or so that he could have drawn upon it during the taxable year if notice of intention to withdraw had been given. C.F.R (a). Thus, where income is made subject to the will and control of the taxpayer and can be, except for his own action or inaction, reduced to actual possession, it is deemed constructively received for income tax purposes, and thus must be included in income in the year in which it is constructively received. Loose v. United States, 74 F.2d 147, 150 (8th Cir. 1934). 8 While only some of the allegedly fraudulent accounting methods are addressed in this motion, the defendants do not concede that the remainder are unlawful; indeed, we expect the evidence at trial to show that to the extent they were aware of the accounting methods at issue, the defendants all believed the methods were appropriately used. 23

25 This IRS approach extends to situations in which a check was sent by mail but could have been picked up in person. See Kunze v. C.I.R., 19 T.C. 29, 30 (1952) (finding that a dividend declared and made payable in 1946 but received through the mails in 1947 was constructively received by petitioner in 1946 so as to be includible in his gross income for the earlier year ), a ff d, 203 F.2d 957 (2d Cir. 1953). The grand jury should have been instructed that December dated checks could under some circumstances appropriately be counted in December income even when they had been received in January. The grand jury should also have been instructed that under New York s Uniform Commercial Code ( NYUCC ), checks may be appropriately antedated or postdated without affecting their negotiability. NYUCC The NYUCC expressly provides that [wjhere an instrument is antedated or postdated[,] the time when it is payable is determined by the stated date if the instrument is payable on demand or at a fixed period after date. NYUCC 3-114(2); see also Uniform Commercial Code 3-114(a) ( An instrument may be antedated or postdated. ). In other words, even if the grand jury concluded that clients were asked in January to issue checks with December dates, New York s commercial code expressly permitted those clients to do so, and, by so doing, to acknowledge that the check was payable as of the date of the instrument. The grand jury should have been instructed on these rules. Had it been properly instructed, the grand jury would have concluded that by antedating checks, as New York law allows them to do, clients were in essence providing that the income was available to the firm and thus constructively received by it as of the date of the check. The prosecutor s failure to give correct and complete instructions on this matter should, at minimum, result in the dismissal of Count One. 24

26 2. Reversing Disbursement Write-Offs The indictment alleges that Messrs. Davis, DiCarmine and Sanders improperly reversed millions of dollars of write-offs of client disbursements that the Firm had no intention or reasonable expectation of collecting. (Indictment p. 4 (a) and (d)). Particularly since the accusation s concept of allegedly improper write-offs are such a significant part of the indictment, fairness to the defendants required that the instructions to the grand jury on this topic, like those regarding antedated checks, include instructions that there may be circumstances under which reversal o f write-offs is appropriate. The IRS has determined that where a firm decides, for valid business reasons, not to bill a client for an out-of-pocket expense, [the firm] will be entitled to a deduction [i.e., a write-off for financial statements prepared on the income tax basis of accounting] for the expense... for the year in which it makes the final determination not to bill the client. I.R.S. TAM (Aug. 12, 1994) (emphasis added). Moreover, even where a disbursement has been written off and the associated debt treated as worthless,9 if it is subsequently recovered, it must be included in gross income for the year it was collected. 26 C.F.R (f). The grand jury thus should have been instructed that reversing a write-off is permissible under the Treasury Regulations, and that simply because the firm may have done so is not itself evidence o f a crime. Complete and accurate instructions on the governing IRS regulations, generally accepted accounting practices and law governing what a law firm could legitimately do, and even what could be a gray area, was particularly important in this case because none of these defendants was an accountant, much less a CPA. As such, these three had a complete right to rely on the accounting advice received from Frank Canellas, the chief accountant at the firm during most of 9 For income tax purposes, amounts advanced on behalf of a client by a law firm are treated as loans. Canelo v. C. I. R., 447 F.2d 484, 485 (9th Cir. 1971). 25

27 the period in question. In this setting, if the prosecutors neglected to instruct the grand jury on the appropriate accounting rules, accepted practices and governing law, the presentation was legally defective and the Court should dismiss the indictment Knowledge And Intent Because this indictment is based on complex and nuanced accounting rules, regulations and standards, it should be dismissed if the prosecutors neglected to instruct the jurors that these non-accountant defendants had a right to rely on the accounting advice given them by the firm s professional accounting staff. For the same reason, the Court should dismiss the indictment if the prosecutors did not instruct the grand jury correctly and fully on the knowledge and intent requirements set forth in the Penal Law and their application to the accounting rules, regulations and standards that govern law firm accounting for the areas in which the prosecution has accused the defendants of criminal wrongdoing. PL 15.05, & The prosecutor s wide exercise of discretion in presenting evidence to the grand jury, which may include the decision not to present exculpatory material, must be balanced by the grand jury s right to hear the full story so that it [can] make an independent decision that probable cause [exists] to support an indictment. People v. Townsend, 127 A.D.2d 505, 506 (1st Dep t 1987) (citing People v. Isla, 96 A.D.2d 789, 790 (1st Dep t 1983)) (alterations in original). If the grand jury did not receive the accounting instructions detailed above, it was prevented from making an independent and informed determination, and Messrs. Davis, DiCarmine, and Sanders were deprived of their right to have the case fairly presented to the grand jury. Without proper instruction as to the lawful uses of these accounting treatments, there 10 We respectfully urge that, given their complexity, release of the grand juiy minutes pursuant to CPL (3) is particularly appropriate as to any accounting instructions. Messrs. Davis, DiCarmine, and Sanders should have the opportunity to inspect these minutes in order to aid the court in understanding whether the accounting instructions were sufficient. 26

28 can be no conclusion other than that the instructions were so deficient as to impair the integrity of the Grand Jury s deliberations. People v. Wade, 260 A.D.2d 946, 947 (3d Dep t 1999) (internal quotation marks omitted). This deficiency, moreover, is fatal not just to one count of the indictment, but all of them. Each count - scheme to defraud, conspiracy, grand larceny, falsifying business records, and securities fraud under the Martin Act - depend on the notion that Dewey s financial records were fraudulent as a result of these and other accounting methods. If, as was likely, insufficient and inaccurate accounting instructions impaired the integrity of the deliberations, then each count o f the indictment must be dismissed. B. The Use of Purported Co-Conspirators Statements in The Grand Jury A declaration by a co-conspirator made during the course of and in furtherance of a conspiracy is admissible against another co-conspirator. However, this evidence may be admitted against the second purported co-conspirator only upon a showing that a prima facie case of conspiracy has been established without recourse to the declaration sought to be admitted. People v. Caban, 5 N.Y.3d 143, 148 (2005); People v. Bac Tran, 80 N.Y.2d 170,179 (1992); People v. Salko, 47 N.Y.2d 230, 237, rearg. denied, 47 N.Y.2d 1010 (1979). A prima facie case of conspiracy in the fifth degree requires evidence that a person, with intent that conduct constituting a crime be performed, agrees with one or more persons to engage in or cause the performance of such conduct. PL (1). These rules apply to grand jury proceedings. People v. Cartwright, 293 A.D.2d 882 (3d Dep t 2002); People v. O Neill, 285 A.D.2d 669 (3d Dep t 2001); People v. Diaz, 209 A.D.2d 1 (1st Dep t 1995); People v. Green, 188 A.D.2d 662 (2d Dep t 1993) Similarly, the Court should review the minutes to ensure that any accomplice testimony before the grand juiy was sufficiently corroborated to be admissible against each defendant. See CPL 60.22; (1). 27

29 This indictment contains a conspiracy count. Most of, if not all of the other counts of the indictment, also must be based on a conspiracy theory of liability. For example, according to the allocutions of some former employees who have pleaded guilty, these defendants did not physically make the entries deemed false in the business record counts. The Court should inspect the grand jury minutes to determine whether, with respect to each count of the indictment and with respect to each defendant separately, a prima facie case of conspiracy existed without recourse to statements made by any co-conspirator, and dismiss any count against any defendant where that standard was not met. In addition, the Court should inspect the legal instructions to the grand jury to determine whether the prosecutors properly instructed the grand juries with respect to the rules governing the use of co-conspirator statements, and to dismiss the indictment if the prosecutors did not adequately instruct the grand jury. POINT III THE COURT SHOULD STRIKE FROM THE INDICTMENT ANY SPEAKING PORTION OF THE INDICTMENT NOT EXPRESSLY VOTED BY THE GRAND JURY AND ALSO ALL INFLAMMATORY, PREJUDICIAL LANGUAGE Professor Preiser teaches that a basic function of an indictment is to evidence the fact that a grand jury has voted to charge a defendant with a particular crime and to ensure that the charge for which the defendant will be tried is the charge voted by the grand jury. Preiser, Practice Commentary, CPL , McKinney s Consl. Laws, Book 11 A, p. 213 (2007). Pages two through eight of this indictment (the Prologue ), however, serve far different improper and pernicious purposes.12 Indeed, this screed is a combination of a prosecutor s press release, opening statement and summation. It has no place in an indictment under any circumstances. It 12 The indictment is not paginated. These pages are annexed as Appendix A. 28

30 certainly has no place in an indictment if, as the defendants suspect, the grand jury did not expressly find the facts asserted in it and also vote to include the prosecutors language in the indictment. A. The Court Should Strike Language of a Speaking Indictment If The Grand Jury Did Note Vote to (1) To Approve the Speaking Language and (2) to Include It In the Indictment The New York State Constitution provides that, No person shall be held to answer for a capital or otherwise infamous crime..., unless on indictment of a grand jury... N.Y. Const. Art. I, 6. If the grand jury did not vote to find the facts set forth in the Prologue, and did not also vote to include the Prologue s language in the indictment, the Court should strike the Prologue. Permitting this scurrilous material to remain in the indictment would violate the defendants constitutional right to be charged and tried on an indictment voted by a grandjury. The Criminal Procedure Law provides that an indictment must contain [a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, (a) asserts facts supporting every element of the offense charged and the defendant s or defendants commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation,... CPL (7)(a). Typically, the District Attorney drafts a bare bones indictment that encompasses each charge voted by the grand jury, just as the District Attorney did in the business records counts of this indictment. While the District Attorney has the authority to draft on behalf of the grand jury an instrument that sets forth a plain and concise factual statement, he does not have the authority to argue his case in the indictment by including facts not expressly found by the grand jury and language not 29

31 approved by the grand jury.13 The Court should examine the minutes to determine whether the grand jury expressly found the purported facts asserted in the Prologue and expressly voted to include the Prologue s language in the indictment, and if the grand jury did not take those steps, strike the Prologue from the indictment. B. The Court Should Strike Language That Is On Its Face Inflammatory, Prejudicial and Prohibited This Prologue was drafted to be a weapon to supplement the District Attorney s press release, and it will be used again as a weapon at trial. But its language is outrageously prejudicial and inflammatory and should be stricken. For example, the Prologue argues that: The Firm declared bankruptcy; thousands lost their jobs; and the Firm s creditors were left owed hundreds of millions of dollars. These allegations are a blatant attempt to inflame the jury and prejudice it against these defendants.14 The defendants are accused of grand larceny, falsifying business records and schemes to defraud - not causing a bankruptcy, causing thousands to lose their jobs, and stiffing creditors of hundreds of millions of dollars via a bankruptcy they did not cause. Perhaps the piece de resistance is the indictment s argument that the defendants lied to and otherwise misled the Firm s partners and auditors as well as others. It is well established 13 This argument applies to the entire Prologue, but for purposes of illustration, the Court should determine whether the grand juiy actually found that Davis, DiCarmine and Sanders: controlled the operations of the firm ; also tightly controlled information concerning the firm s financial condition ; were aware that the failure to meet the Cash Flow Covenant during the 2008 credit crisis could have disastrous effects on the Firm ; and [t]he Firm could no longer pay partners enough to prevent their departure, and the Schemers could no longer fool the Firm s lenders, investors, and others. The Firm declared bankruptcy; thousands lost their jobs; and the Firm s creditors were left owed hundreds of millions of dollars. 14 These assertions are particularly offensive because there is a veiy good argument that the publicity surrounding the commencement of the District Attorney Office s investigation derailed an almost consummated merger with another law firm, and resulted in the termination of D&L s negotiations concerning a new credit facility, and caused D&L to declare bankruptcy; which caused thousands to lose their jobs; and caused D&L s creditors to be owed hundreds of millions of dollars. 30

32 that a prosecutor exceeds the bounds of legitimate advocacy by resorting to name calling, such as characterizing the defendant as a liar. People v. Collins, 12 A.D.3d 33, 37 (1st Dep t 2004) (citations omitted); People v. Kim, 209 A.D.2d 167, 167 (1st Dep t 1994) ( Defendant was deprived of a fair trial as a result of the prosecutor s repeated, improper attempts during crossexamination and summation to characterize him as a liar... ); People v. Tolbert, 198 A.D.2d 132, 133 (1st Dep t 1993) (prosecutor s summation was improper where he characterized the defendant s alibi defense as a concoction of lies and falsehoods and repeatedly asserted that the defense witnesses were liars).15 The insidiousness of including this language in the indictment and the impropriety of permitting it to remain there is all the more glaring because the courts typically read the indictment to the jury during preliminary instructions and often read the indictment again during instructions at the end of the trial. Some judges permit the jury to take the indictment into the jury room during deliberations. If it is improper, and cause for a new trial, for a prosecutor to call the defendant a liar in summation, language in an indictment asserting that the defendants lied is at least as prejudicial, especially since the judge will deliver that language when he reads the indictment to the jury. Moreover, the contents of this diatribe are such that even repeated instructions that the indictment is just a charge and proof of nothing will no more cause the jury to ignore these allegations than would telling a jury to ignore a pink elephant wearing a tutu that just walked across the well of the courtroom. Permitting the trial jury to be polluted by this prejudicial and inflammatory language would violate the defendants right to due process. 15 The unfounded allegation that these defendants lied to or misled D&L s partners has nothing to do with the crimes charged in the indictment, making this reference not only inflammatory but improper. 31

33 POINT IV THE COURT SHOULD DISMISS COUNT ONE BECAUSE IT IS MULTIPLICITOUS The indictment alleges that in April 2010, D&L refinanced its debt with the private placement of securities with 13 bondholders (insurance companies). This private placement forms the basis for part of the Penal Law Scheme to Defraud charged in Count One of the indictment. Count One Hundred Five accuses defendants Davis, DiCarmine and Sanders of violating the Scheme to Defraud prohibited by General Business Law 352(c)(5) ( Martin Act ). Although the indictment does not in haec verba allege that this charge is based on the same conduct as that alleged in Count One, merely looking at the indictment and examining the grand jury minutes will demonstrate that it is. The Court of Appeals sternly warned prosecutors and grand juries not to engage in the evil of multiplicity. People v. Alonzo, 16 N.Y.3d 267, 269 (2011). The Court explained that [i]f an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he actually committed. People v. Alonzo, supra. An indictment is multiplicitous when two or more counts charge the same crime" People v. Smalls, 81 A.D.3d 860, 861 (2d Dep t 2011), quoting People v. Aarons, 296 A.D.2d 508 (2d Dep t 2002); see People v. Quinones, 8 A.D.3d 589 (2004). Thus, the indictment violates the prohibition against multiplicity. This multiplicity leaves the defendants subject to several pernicious results. First, a jury could convict them under Count One of engaging in a scheme to defraud with respect to the private placement and also convict them of the same conduct as a violation of the Martin Act under Court One Hundred Five, which at its core charges the same conduct. Consequently, these defendants face precisely the risk that [they] will be punished for, or stigmatized with a 32

34 conviction of, more crimes than [they] actually committed that the Court of Appeals cautioned against. People v. Alonzo, 16 N.Y.2d at 269. Second, the jury could find the defendants not guilty o f Count One - which includes the private placement - thereby demonstrating that alleged private placement scheme was not proven beyond a reasonable doubt, but guilty of the same conduct under the alleged Martin Act violation charged in Court 105. That result would be an inconsistent verdict. POINT V THE COURT SHOULD REVIEW THE GRAND JURY MINUTES AND DISMISS THE INDICTMENT IF THE DISTRICT ATTORNEY DID NOT GIVE ALL LEGALLY REQUIRED INSTRUCTIONS, GAVE INCORRECT OR INCOMPLETE LEGAL INSTRUCTIONS WITH RESPECT TO THE GRAND JURY S OPERATIONS, OR IF THE GRAND JURY S FORMATION AND PROCEEDINGS DID NOT COMPORT WITH LAW A. The Court Should Dismiss the Indictment If the Law Regulating Which Grand Jurors Were Permitted To Vote Was Not Followed The Court should review the grand jury records to determine whether at least twelve members of the grand jury who voted to indict each defendant with respect to each count were present for all of the essential and critical evidence. If that standard was not met, the Court should dismiss the indictment. People v. Brinkman, 309 N.Y. 974, , (1956); People v. Saperstein, 2 N.Y.2d 210 (1957); People v. Collier, 72 N.Y.2d 298, 299 (1988); People v. Osborne, 165 Misc.2d 900 (Sup. Ct. Kings Cnty. 1995); Preiser, Practice Commentaries, McKinney s Cons. Laws of N.Y., Book 11 A, CPL at 676 (2007). The Court also should examine the grand jury minutes to determine whether the prosecutor properly instructed the grand jury that only those jurors who have heard all of the essential and critical evidence could vote. If the prosecutor did not give that instruction, the Court should dismiss the indictment. 33

35 In addition, the Court should compare the dates the prosecutor suggested to the jurors were the dates on which essential and critical evidence was heard to the record. If the Court determines that the prosecutor omitted a date on which essential and critical evidence was presented, the Court should dismiss the indictment. Moreover, the Court should inspect the grand jury records to ensure that at least 12 jurors who in fact heard all of the essential and critical evidence actually voted to return each count o f the indictment against each defendant. See generally People v. Eun Sil Jang, 17 A.D.3d 693 (2d Dep t 2005); People v. Perry, 199 A.D.2d 889, 891 (3d Dep t 1993); People v. Harris, 181 Misc.2d 670, 680 (Sup. Ct. Bronx Cnty. 1999). In addition, the Court also should determine whether the grand jurors were instructed that only those jurors who had heard all o f the essential and critical evidence could participate in deliberations and whether any grand juror who was not present when essential and critical evidence came before the grand jury participated in the deliberations. If these instructions were not given, or if any juror who had not heard all of the essential and critical evidence participated in the deliberations, the Court should dismiss the indictment. As one Judge of the Court of Appeals explained: Such participation could, however, lead to undesirable consequences. Jurors who have not heard all of the evidence could well have a substantial influence on the decision to indict...(footnote omitted). At the very least, the result would be uninformed decision-making. Of even greater concern is the potential for manipulation. In the worst possible scenario, a flying squad of four especially persuasive grand jurors who heard only the most damaging evidence could influence the 12 jurors who, after having heard all of the evidence, would not have returned an indictment but for the influence of those four. 34

36 People v. Collier, supra 72 N.Y.2d at 305 (Titone, J., concurring);16 but see, People v. Perry, supra, 199 A.D.2d at 892. B. The Court Should Dismiss the Indictment If the Grand Jury That Voted To Return It Was Not Legally In Existence The defendants do not know if the grand jury that voted this indictment completed all of its work within the initial term for which it was empanelled or whether its existence was extended. If, as seems likely, this grand jury voted this indictment during some extension of its original term of existence, the Court should examine the records relating to any such extensions to ensure compliance with the provisions of CPL (1). In particular, the Court should examine whether: a. within five days of the expiration of any term in which the grand jury was lawfully in existence, the grand jury itself voted to ask the Court to extend its term to a specified date, and whether any such vote was to extend with respect to the investigation that resulted in this indictment; b. within five days of the expiration of any term in which the grand jury was lawfully in existence, the grand jury and the district attorney both declared to the Court that the grand jury had not yet completed or would be unable to complete certain business before it, and therefore asked the Court to extend the term of the court and the existence of the grand jury to the specified date voted by the grand jury; and c. the Court issued and entered an order accomplishing the extension. The Court should dismiss this indictment if those steps were not taken. 16 The majority expressly did not reach the issue. People v. Collier, supra at 72 N.Y.2d at 306, n.2. 35

37 POINT VI THE COURT SHOULD DIRECT THE PEOPLE TO PROVIDE THE DISCOVERY AS WELL AS THE BILL OF PARTICULARS REQUESTED BY THESE DEFENDANTS The defendants have made a number of reasonable and necessary requests for discovery, in accordance with CPL Article 240 and the due process guarantees of both the New York State and United States Constitutions, which the District Attorney has almost entirely rebuffed. Because the prosecutor has failed to take seriously the prosecution s constitutional and statutory disclosure obligations, the Court must ensure that those obligations are met and the defendants receive a fair trial. CPL (1 )(a) (the Court must order discovery as to any material not disclosed upon a demand pursuant to section , if it finds that the prosecutor s refusal to disclose such material is not justified ).17 The defendants first and perhaps most critical request was a letter dated March 24, 2014, in which counsel sent to the District Attorney on behalf of defendants Davis, Sanders and DiCarmine detailed Brady/Giglio requests. Appendix B. Those requests addressed a number of specific issues under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, most of which centered on the prosecution s cooperating witnesses. The cooperators testimony will be a central part of the defendants trial and the defendants made these tailored requests to resolve any Brady disputes in a timely manner, consistent with the constitutional imperative that Brady material be provided in sufficient time to permit the defendants to make effective use of the information at trial. See, e.g., Weatherfordv. Bursey, 429 U.S. 545, 559 (1977). 17 The Court has a similar obligation to order the District Attorney to supply an adequate Bill of Particulars (CPL (5)), and also may order discoveiy with respect to any other property, which the people intend to introduce at trial upon the appropriate showing by the defendants. CPL (l)(c). 36

38 Defendants Brady letter emphasized that only by knowing whether we disagree over the scope of disclosure can the defendants seek a timely ruling from the Court, if necessary, as to the parties ethical, legal and constitutional obligations. Appendix B. The defendants reasonably requested that the District Attorney provide a response specific enough to reveal whether in fact there exists a dispute over the government s Brady obligations. The defendants specifically asked that the District Attorney not simply provide a boilerplate response that the prosecution is aware of its duties and will act accordingly, because such a response tends to obfuscate rather than help resolve this important constitutional issue. Id. Unfortunately, that is precisely what the prosecutor did, dismissing the defendants Brady letter with a one-sentence reply. The District Attorney s response leaves the defendants in the untenable position of not knowing whether the District Attorney is telling them that he has the Brady material they seek but refuses to turn it over because he improperly refuses to acknowledge that it is Brady material, that he has the Brady material but refuses (for unidentified reasons) to turn it over at this time, or that he does not have the material. The District Attorney s refusal to respond to the defendants requests is unreasonable and shows that the prosecution is not taking its Brady obligations seriously. As the Supreme Court held in United States v. Agurs, 427 U.S. 97, 106 (1976), [wjhen the prosecutor receives a specific and relevant [Brady] request, the failure to make any response is seldom, if ever, excusable. Given the importance of the cooperators in this case and, equally, the importance o f Brady information concerning those cooperators the Court should not permit the District 37

39 Attorney to brush aside the defendants specific Brady requests with an intentionally 18 uninformative response. It is well within the Court s authority to ensure that the District Attorney is properly complying with its Brady obligations pretrial. While the prosecution possesses a crucial constitutional duty to ensure that Brady information is timely disclosed, its discretion is not unlimited, and the courts have the obligation to assure that it is exercised in a manner consistent with the right of the accused to a fair trial. Boyd v. United States, 908 A.2d 39, 59 (D.C. 2006). The Court s involvement is essential because the very purpose of Brady is to ensure that a miscarriage of justice does not occur in the first place. Bagley, 473 U.S. at 675 (emphasis added). Section requires the prosecutor to produce, among other material, (h) Anything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution or this state or of the United States. That means Brady material. The defendants made a request for that material. Appendix B. CPL (1 )(a) requires the Court to order discovery as to any material not disclosed upon a demand pursuant to section , if it finds that the prosecutor s refusal to disclose such material is not justified. Other than to gain a tactical advantage by impeding the defendants trial preparation and therefore their ability to defend at trial, there can be no justifiable reason for not turning over Brady material now. At minimum, to the extent the District Attorney refuses presently to turn over to the defense all of the Brady material requested in the defendants March 24th letter, to enable the Court to determine the propriety o f that refusal, the District Attorney should be directed to (1) 18 Such a response is also counterproductive because, as the Supreme Court explained in United States v. Bagley, 473 U.S. 667, (1985), the more specifically the defense requests certain evidence... the more reasonable it is for the defense to assume from the nondisclosure that the evidence does not exist and courts will properly consider any adverse effect that the prosecutor s failure to respond might have had on the preparation or presentation of the defendant s case. 38

40 inform the Court and the defense promptly whether it possesses any of the information described in the defendants Brady letter, (2) whether it disputes the defendants entitlement to that information, and (3) if it intends to disclose the information, when it will do so. Only then can the parties address any disputes over the scope of the District Attorney s disclosure obligations and present to the Court their arguments as to whether the District Attorney s proposed timing for making Brady disclosures is proper. Accordingly, the defendants respectfully request that the Court enter an order directing the District Attorney to provide the three categories of information described above as soon as possible. In addition to the Brady letter, the defendants made three additional written requests for discovery. On April 29, 2014, counsel sent to the District Attorney on behalf of defendants Davis, Sanders and DiCarmine a formal Demand for Discovery. Appendix C. On May 28, 2014, counsel sent to the District Attorney by on behalf of defendants Davis, Sanders and DiCarmine a Request for a Bill of Particulars. Appendix D. Finally, also on May 28, 2014, counsel sent to the District Attorney a letter that completed these defendants requests for voluntary discovery from the District Attorney. Appendix E. The District Attorney rejected all of the defendants discovery requests.19 Annexed hereto as Appendix F is a chart that tracks each of the defendants discovery requests and the District Attorney s corresponding answer (or lack thereof). In virtually every instance, the District Attorney simply wrote that the defendants had received all the information to which they 19 In fact, the only piece of information the District Attorney deigned to convey was the beginning of a response to Paragraph 2 of the defendants Request for a Bill of Particulars, which asked whether the People intend to prove that [each] particular Defendant acted as a principal, accomplice or both. The District Attorney said both, but then ignored the portions of this request that could have provided information lacking from the Indictment [i]f charged as a principal... how, and by whom, each Defendant was allegedly aided and abetted, and [i]f charged as an accomplice... whom each Defendant allegedly aided and abetted, and how. The District Attorney did not even bother responding to those requests. 39

41 are entitled, that the defendants are not entitled to the information sought or that the defendants are not entitled to such information at this time. The Court should reject these boilerplate assertions and direct the District Attorney to respond to the defendants detailed and specific requests or, at a minimum, state what materials it is withholding and provide its reasons for contending that the defendants are not entitled to the materials so the defendants can respond and the Court has a basis on which to rule. requested: For example, in defendants discovery demand letter, dated May 28, 2014, defendants [A] 11 materials concerning any compensation (regardless of source) that was received by Francis Canellas, Jyhjing Flarrington, Ilya Alter, Lourdes Rodriguez, David Rodriguez, Dianne Cascino or Thomas Mullikin during the period that each of them was employed by Dewey & LeBoeuf or as a result of their employment at Dewey & LeBoeuf. If the District Attorney is aware of evidence that any of the cooperators received money that was not W-2 compensation from D&L - as suggested by the carefully crafted pleas allocutions, only some o f which state that the particular cooperator did not receive compensation 90 other than what was disclosed in their W-2 that may well be Brady material. The District Attorney s response to that request, however, was: [t]o the extent responsive materials exist and have not otherwise been produced, the defendants are not entitled to them at this time. That response is plainly inadequate. Additionally, the District Attorney has stated that his Office complied with our obligations under CPL (l)(a)-(i), he has not. CPL (1) requires the District Attorney to provide certain materials upon a request by a defendant a request the defendants made months ago. Yet the District Attorney has not provided a variety o f materials 20 See, e.g., Allocution of Dianne Cascino at 3 ( I did not receive any compensation from Dewey & LeBoeuf or anyone at Dewey & LeBoeuf other than what was reflected on my W2s. ). 40

42 that the VDF represents are in the District Attorney s possession, including: (1) statements made by the defendants or co-defendant Zachary Warren, other than those referenced in section B (l) of the VDF (which were the only materials provided) (VDF at C(l)); (2) photographs or drawings by law enforcement personnel or trial witnesses (VDF at C(4)); (3) tapes or recordings the District Attorney intends to use at trial (VDF at C(7)); and (4) other property obtained from the defendants or Mr. Warren (VDF at C(6)). Given the defendants requests for this material, the District Attorney s refusal to provide it is improper and threatens to undermine the defendants ability to prepare for trial. The majority of the VDF a list of the 88 falsifying business records counts in the indictment likewise fails to provide any disclosure at all. The appended material consists largely of screenshots (static images of a computer screen) of D&L s accounting computer program, to which the District Attorney was provided access by the D&L bankruptcy trustee. Appendix G. Much of this material is indecipherable and of no use to the defense in the absence of equivalent access to D&L s accounting system. For months, the District Attorney s Office has repeatedly assured the defendants that it would arrange for the defendants (and their attorneys and experts) to be given the same access to the D&L accounting system that the District Attorney has. Only on the eve of the filing of this motion, on July 8, 2014, the District Attorney s Office provided us with a draft protective order concerning D&L s accounting system. The District Attorney s Office s delay - whether intentional or not - has frustrated the defendants ability to prepare for trial - a trial that will focus heavily on D&L s accounting practices. The District Attorney s blanket refusal to supply a bill of particulars is equally improper. Rather than provide any o f the particulars o f the offenses alleged, the District Attorney posits 41

43 that all of the required information is contained in the (1) indictment, (2) VDF, (3) cooperators allocutions, (4) Statement o f Facts, and (5) falsifying business records disclosures. Appendix H. Otherwise, the District Attorney asserts, the defendants requests seek evidentiary detail rather than the substance of the charges. Id. To the contrary, the defendants request for a bill of particulars does not once ask the District Attorney to identify the evidence. Rather, it properly asks the District Attorney to specify the nature of the more than 100 charges set forth in the indictment. Appendix D. The five items to which the District Attorney points are do not supply that information and are no substitute for a bill o f particulars. For example, as discussed above, the falsifying business records disclosures consist largely o f a series o f screenshots from the D&L accounting system to which the District Attorney has promised to secure the defendants access, but failed to do so. Without that access, the screenshots are o f little use. Nor do the cooperators allocutions provide any information about the nature of the charges against the defendants in fact, they contain the very sort of evidentiary information that the District Attorney insists a bill of particulars is not meant to 21 provide. The VDF contains statutory notices and a summary of the materials being provided to the defense it does not amplify the pleading. The only document that helps clarify the nature of the charges here is the District Attorney s Statement of Facts which, while relevant, does not provide the particulars sought in the defendants detailed and specific request. A review of the bill of particulars request reveals that the defendants have asked the District Attorney to identify the particular factual allegations (and not the evidence that will be used to prove them) that form the elements o f each offense charged. 21. The District Attorney s reliance on the cooperators allocutions rings particularly hollow in light of his recently filed sur-reply opposing Mr. Warren s severance motion. In that document, the District Attorney minimized the cooperators allocutions as very limited statements, emphasizing that they related to the pleas of the cooperators themselves and, accordingly, any part of them that inculpates [these defendants] is merely incidental. Appendix I. 42

44 The District Attorney s refusal to provide any of that information is unjustified and contrary to law, and the items to which he refers in his response do not contain the necessary information. That information is critical to the defendants ability to prepare for trial. Accordingly, the District Attorney should be directed to provide the requested bill of particulars. The District Attorney has also refused to provide privilege logs or any other information concerning assertions of privilege by the D&L bankruptcy trustee and other non-parties. Appendix H. That refusal is especially significant because the prosecution has stated to the court their belief that certain materials produced by D&L s outside auditors in the course of the District Attorney s investigation, are somehow covered by a work product privilege - even though no such privilege could possibly exist between the District Attorney s Office and E&Y. Moreover, a non-party's assertion of privilege does not negate the prosecution's constitutional and statutory disclosure obligations including the duty to disclose any Brady material the prosecution may have received, regardless of whether the non-party later sought to claw that material back. We understood from our prior discussions with the prosecution, as well as the statements made to the court, that the District Attorney s Office had provided defendants with all of the materials in its possession from D&L, its banks and the private placement bondholders, with the exception of privileged materials and several discrete categories of materials that are not relevant to this investigation. However, on July 8, 2014, defendants received a supplemental production letter indicating that defendants would be receiving an additional production of material from D&L, J.P. Morgan and Citibank. The existence of that forthcoming supplemental production from D&L and two o f its banks demonstrates that the prior productions were deficient. 43

45 CONCLUSION For all of the foregoing reasons, the defendants respectfully submit that the Court should dismiss the indictment in its entirety, direct the District Attorney to comply with the defendants discovery demands and request for a bill of particulars, and grant the alternative relief requested herein together with any further relief the Court deems just and proper. Dated: July 11, 2014 New York, New York M ORVILLO ABRAM OW ITZ GRAND IASON & ANELLO P.C. By: Ellcan Abramowitz 565 Fifth Avenue New York, New York Tel: Austin V. Campriello BRYAN CAVE LLP 1290 Avenue of the Americas New York, New York Tel: Fax: Attorneys fo r Defendant Stephen DiCarmine HUGHES HUBBARD & REED LLP By: Edward J. M. Little One Battery Park Plaza New York, NY Tel: (212) Fax: (212) Counsel fo r Defendant Joel I. Sanders 44

46 O f Counsel: MORVILLO ABRAMOWITZ GRAND IASON & ANELLO P.C. Lawrence S. Bader, Esq. Rachel Y. Hemani, Esq. Dana M. Delger, Esq. BRYAN CAVE LLP Mary Beth Buchanan, Esq. Kathryn E. Gebert, Esq. Anne Redcross, Esq. HUGHES HUBBARD & REED LLP Marc Weinstein, Esq. David Shanies, Esq.

47 APPENDIX A

48 Background Dewey & LeBoeuf LLP (the Firm ) was an international law firm headquartered in New York County. It was formed on or about October 1, 2007, through the combination of two existing law firms, Dewey Ballantine LLP and LeBoeuf, Lamb, Greene & MacRae LLP. At its height, approximately 1,300 partners and employees worked in the Firm s Manhattan office and approximately 3,000 partners and employees worked for the Firm worldwide. The partners at the Firm were primarily equity partners, with a few non-equity partners. The Firm also employed salaried lawyers who were deemed to be Of Counsel. In 2012, the Firm collapsed and declared bankruptcy. During the period of the scheme, defendant DAVIS was the Firm s Chairman, and later, member of the Office of the Chair; defendant SANDERS was the Firm s Chief Financial Officer; defendant DICARMINE was the Firm s Executive Director. Defendant WARREN was the Firm s Client Relations Manager in 2008 and 2009, when he left the Firm. Defendants DAVIS, DICARMINE, and SANDERS were in regular communication and controlled the operations of the Firm. They also tightly controlled information concerning the firm s financial condition. The Scheme The Firm s first full year of operations was The merger, coming just before the financial crisis, was troubled from the start and the Firm s first year financial performance was severely below expectations. By the end of that year, the Firm had more than $100 million in term debt outstanding and available lines of credit of more than $130 million with four banks (the Banks ). The Firm s credit agreements with the Banks contained several covenants, including a cash flow covenant (the Cash Flow Covenant ) requiring the Firm to maintain a

49 minimum defined year-end cash flow. Because of its poor financial performance, the Firm was unable to meet this covenant in The defendants and others at the Firm were aware that the failure to meet the Cash Flow Covenant during the 2008 credit crisis could have disastrous effects on the Firm. To avoid this, the defendants and others at the Firm (individually and collectively, the Schemers ) engaged in a scheme (the Scheme ) to defraud the Firm s lenders and others by, among other things, misrepresenting the Firm s financial performance and compliance with the Cash Flow Covenant. In later years, among other things, the Schemers continued to misrepresent the Firm s financial performance and condition and that the Firm was in compliance with the Cash Flow Covenant and other covenants and defrauded additional lenders and investors using similar misstatements. As part of the efforts to ensure the success of the Scheme, the Schemers lied to and otherwise misled the Firm s partners and auditors, as well as others. The Schemers, themselves or working through others, withheld information and affirmatively concealed the Scheme when they were questioned by partners, including members of the Firm s Executive Committee, auditors, or others. The Fraudulent Methods By or about the end of 2008, the Schemers had created a document they called the Master Plan that described certain fraudulent accounting adjustments that the Schemers decided to pursue as part of the Scheme. From in or about the end of 2008 until the Firm s bankruptcy in 2012, the Schemers input numerous of these and other fraudulent adjustments, and engaged in other fraudulent conduct, most of which made it appear that the Firm had either increased revenue, decreased expenses, or limited distributions to partners. Some of these

50 fraudulent adjustments and acts were: a. Reversing disbursement write-offs - From 2008 through 2011, the Schemers improperly reversed millions of dollars of write-offs of client disbursements that the Firm had no intention or reasonable expectation of collecting. b. Reclassifying disbursement payments - From 2008 through 2011, the Schemers improperly reclassified millions of dollars of payments that had been applied to client disbursements during the year and applied the payments instead to outstanding fee amounts. c. Reclassifying O f Counsel payments - From 2008 through 2011, the Schemers reclassified millions of dollars of compensation to Of Counsel lawyers as equity partner compensation. Historically, Of Counsel compensation had been treated as an expense in the Firm s financial statements. d. Reversing credit card write-offs In 2008 the Firm initially properly wrote off more than $2.4 million in charges from an American Express card associated with defendant SANDERS that had not previously been expensed and were not chargeable to clients. For year-end 2008, the Schemers fraudulently reversed this write-off and hid the amount in the Firm s books as an unbilled client disbursement receivable. Each subsequent year, the Schemers initially wrote this amount off, but then reversed the write-off at year-end. The amount remained on the Firm s books as an unbilled client disbursement receivable at the time of the bankruptcy. e. Reclassifying salaried partner expenses - In 2008, the Schemers improperly reclassified as equity partner compensation millions of dollars in compensation paid to, and amortization of benefits related to, two salaried, non-equity partners. Similar amounts had previously been treated as expenses on the Firm s financial statements, so the reclassification had the effect of reducing Firm expenses. This change in treatment was neither disclosed to the Firm s auditors nor disclosed on the Firm s

51 audited financial statements. In later years, the compensation paid to these two salaried partners was classified as equity partner compensation. f. Seeking backdated checks - During at least two year-ends from 2008 through 2011, the Schemers sought backdated checks from clients to post to the prior year. At the end of each of the Scheme years the Schemers engaged in efforts to hide the date on which checks were received by the Firm. These efforts minimized the risk that the Firm s auditors would discover that December checks received in January, including backdated checks, were being posted to the prior year. g. Applying partner capital as fee revenue - For year-end 2009, more than $1 million that had been contributed by a partner to satisfy his capital requirement was applied as a fee payment for the client of a different partner. This amount was backed out of fees and applied to the partner s capital account during 2010, but for year-end 2010 it was again applied as a fee payment for the same client. h. Applying loan repayments as revenue - In 2008, pursuant to defendant DAVIS s authorization, the Firm took on $2.4 million in bank loans that benefitted defendants DICARMINE and SANDERS. In early 2012, defendants DICARMINE and SANDERS repaid the Firm the final $1.2 million owed under the loans but structured the transaction so the loan repayment would increase the Firm s revenue for Covenant Misstatements In February 2009, the Firm reported to its lenders that it had satisfied the Cash Flow Covenant at year-end 2008 by a little more than $4 million. In fact, the Firm was able to achieve this result only by making millions of dollars of fraudulent accounting entries, including, among others, those described above. The Firm s fortunes did not improve in future years. To misrepresent compliance with

52 the Cash Flow Covenant and other covenants, the Schemers continued to make fraudulent accounting entries like those listed on the Master Plan, as well as other fraudulent entries, throughout the Firm s existence. In fact, the Firm s financial condition was so poor in 2009 that defendants DAVIS, SANDERS, and DICARMINE realized that, despite planning millions of dollars in fraudulent adjustments for that year, they would be unable to come up with enough fraudulent adjustments by year-end to show compliance with the Cash Flow Covenant. As a result, defendant SANDERS sought a waiver of the covenant from the Banks. The Cash Flow Covenant floor was reduced from $290 million to $246 million, but the Banks placed burdensome conditions on the Firm, which caused additional financial pressure. The Firm was unable to meet even the reduced Cash Flow Covenant level, and the Schemers made fraudulent adjustments to the Firm s accounting records falsely to show compliance with the Firm s covenants in In 2010 and 2011, the Schemers continued making additional fraudulent adjustments falsely to show compliance with covenants, or to reduce the impact of a covenant breach. These and other fraudulent activities were engaged in, among other things, to conceal the Firm s breach of several of its covenants, and otherwise to hide the true financial condition of the firm. The Private Placement and the Revolving Line of C redit In April 2010, the firm refinanced its debt with a $150 million private placement of securities with 13 insurance companies and a $100 million revolving line of credit with a syndicate of banks. To obtain this financing, the Schemers, among other things, misrepresented the Firm s financial condition and practices to potential investors and lenders. For example, the Schemers provided potential

53 investors and lenders with financial statements that falsely represented, among other things, that the Firm had complied with its covenants. As another example, as part of the private placement process the Schemers provided potential investors with an offering memorandum that contained numerous misstatements. Some of the misstatements contained in the offering memorandum are as follows: a. The offering memorandum purported to disclose all the Firm s debt. It did not. b. The offering memorandum stated, in substance, that departing partners received their capital during the three years following their departure from the Firm. But in fact, the Schemers fraudulently reclassified draws and distributions paid to departing partners during their final year of employment as returns of capital, in order to enable the Firm to appear to meet another of its covenants. c. The offering memorandum stated, in substance, that [cjlient disbursement receivables are written-off when deemed uncollectible In fact, as described above, millions of dollars in client disbursement receivables that had been deemed uncollectible and written-off during 2008 were fraudulently reversed and put back on the Firm s balance sheet in order to reduce 2008 expenses. These amounts had been budgeted to be written off in 2009 instead. Millions of dollars worth of client disbursement receivable write-offs were reversed for year-end The B ankruptcy By in or about March 2012, the Scheme had collapsed in on itself. For years, the Schemers had been fraudulently claiming revenue that the Firm did not have and pushing expenses and financial obligations off into the future. The Firm could no longer pay partners enough to prevent their departure, and the Schemers could no longer fool the Firm s lenders,

54 investors, and others. The Firm declared bankruptcy; thousands lost their jobs; and the Firm s creditors were left owed hundreds of millions of dollars. COUNT TWO: AND THE GRAND JURY AFORESAID, by this indictment, further accuses the defendants STEVEN DAVIS, STEPHEN DICARMINE, and JOEL SANDERS of the crime of GRAND LARCENY IN THE FIRST DEGREE, in violation of Penal Law , r committed as follows: The defendants STEVEN DAVIS, STEPHEN DICARMINE, and JOEL SANDERS, in the County of New York, during the period from in or about late December 2009, to on or about April 16, 2010, stole property from an entity known to the Grand Jury, to wit, Hartford Life Insurance Company, and the value of the property exceeded one million dollars. COUNT THREE: AND THE GRAND JURY AFORESAID, by this indictment, further accuses the defendants STEVEN DAVIS, STEPHEN DICARMINE, and JOEL SANDERS of the crime of GRAND LARCENY IN THE FIRST DEGREE, in violation of Penal Law , committed as follows: The defendants STEVEN DAVIS, STEPHEN DICARMINE, and JOEL SANDERS, in the County of New York, during the period from in or about late December 2009, to on or about April 16, 2010, stole property from an entity known to the Grand Jury, to wit, Pacific Insurance Company, Ltd., and the value of the property exceeded one million dollars.

55 APPENDIX B

56 Hughes Hubbard H u g h e s H u b b a rd G f R eed IAP O ne B attery P a rt Plaza N ew York, N ew Y ork T elephone: Fax: hugheshubbard.com E dw ardj.m. Little D irect D ial: littlc@ hughcshubbard.cona March 24, 2014 Peirce R. Moser, Esq. Steven Pi Inyak, Esq. Assistant District Attorneys Office of the District Attorney of New York County One Hogan Place New York, New York Re: People v. Steven Davis, Stephen DiCarmine, Joel Sanders and Zachary Warren. Indictment No. 773/2014 Dear Messrs. Moser and Pilnyalc; On behalf of our client Joel Sanders, we are making the following requests pursuant to Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); People v. Cwikla, 46 N.Y,2d 434,441 (1979) (following both Brady and Giglio); and CPL (l)(h),' for any and all material that could be either exculpatory or would tend to impeach a prosecution witness, Counsel for codefendants Steven Davis and Stephen DiCarmine join in these requests on behalf of their clients. We are also requesting that you respond in writing as to whether you accept our requests as proper under Brady and Giglio. It is not sufficient to respond simply with the boilerplate statement that the prosecution is aware of its duties and will act accordingly. It is only by knowing whether we disagree over the scope of disclosure that we can seek a ruling from the Court, if necessary, as to the parties ethical, legal and constitutional obligations. As you undoubtedly understand, material must be disclosed if it is possible that it is exculpatory or tends to impeach a prosecution witness. It may not be withheld on the ground that the prosecution does not believe the material is actually exculpatory or tends to impeach a prosecution witness. See, e.g., People v. Consolazio, 40 N.Y,2d 446,453 (1976) ( where... there was some basis for argument that the material in the possession of the prosecutor might be 1 This section requires the disclosure upon a defendant s demand to produce [ajnything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States. (Emphasis added.) New York a W ashington, B.C. Ij i s Angeles s M iami» Jersey City b Kmisns City Paris Tokyo

57 exculpatory, deference to the prosecutor s discretion must give way, and the duty to determine the merits of the request for disclosure then devolves on the trial court ) (emphasis added). We are hereby requesting disclosure of any and all material that possibly could be exculpatory or would tend to impeach a prosecution witness, including but not limited to: 1. Any statement2 by any witness3 that the witness believes that there was no wrongdoing with respect to any one or more of the crimes charged in the indictment or that any defendant is not guilty of any one or more of the crimes charged in the indictment, 2. Any statement by any witness that persons other than the defendants are guilty of the crimes charged in the indictment or are otherwise responsible for the actions or conduct described in the indictment. 3. Any agreement or assurance, direct or indirect, written or oral, or even just understood, to give a benefit of any kind to a prosecution witness, including but not limited to an immunity agreement, a plea agreement, an agreement not to publicize a witness s guilty plea or to seal proceedings, an agreement to no bail or reduced bail, an agreement on sentencing, an agreement to assist in terms of imprisonment, an agreement not to seek fines or restitution, an agreement to assist a witness in connection with related civil proceedings, an agreement not to seek disbarment or revocation of a professional license or to recommend against disbarment or revocation of a professional license, or an agreement to assist in mitigating any potential collateral consequence of a guilty plea. 4. The existence of any document4 not otherwise produced by the prosecution indicating that the defendants were not responsible for the accounting treatments that are the subject of the indictment or for the representations in the bond offering; 5. The existence of any document not otherwise produced by the prosecution indicating that others were responsible for the accounting treatments that are the subject of the indictment or for the representations in the bond offering. 6. The existence of any document not otherwise produced by the prosecution indicating that Ernst & Young was aware of any of the accounting treatments that are the subject of the indictment. 2 Statement is defined for purposes of these requests as any statement, whether oral, written, recorded or electronic. 3 Witness is defined for purposes of these requests as any witness whether or not the prosecution intends to call the witness at trial. 4 Document is defined for purposes of these requests as any writing or recording, printed, handwritten, taped or electronically created.

58 3 7. The existence of any document not otherwise produced by the prosecution indicating that partners of Dewey & LeBoeuf, including members of its Executive Committee, were aware of any of the accounting treatments that are the subject of the indictment 8. Any instance in which any witness changed his or her statement as to the existence of any wrongdoing with respect to one or more of the crimes charged in the indictment or as to the guilt or innocence of a defendant. 9. Any prior convictions, pending charges or investigations of a prosecution witness or evidence that he or she lies or has lied or is or was deceptive or fraudulent. 10. Any information that a prosecution witness is biased against any defendants or has a motive to lie or distort his or her testimony. witness. 11. Any use of illegal drugs or misuse of prescribed drugs by a prosecution 12. The existence of any mental illness of a prosecution witness or the psychiatric treatment of such a witness for any mental illness. I reiterate that this list is not exclusive, but illustrative of the material that we consider Brady or Giglio material. Again, to the extent the prosecution disagrees that any of these requests falls within its disclosure obligations, we request that you inform us immediately so that we can seek a ruling from the Court expeditiously. Finally, due process and CPL (l)(h) require that disclosure of potentially exculpatory material be made as soon as a prosecutor recognizes that the prosecution has exculpatory material, and due process requires that potential impeachment evidence material to guilt or innocence be made in sufficient time to permit the defendants to make effective use of that information at trial, See, e.g. Weatherford v. Bursey, 429 U.S. 545, 559 (1997). Disclosure must therefore be made sufficiently in advance of trial so that the defense will have the material hi time to investigate and prepare for trial. It is not an excuse to delay disclosure on the grounds that the material is also Rosario material (CPL ) that is not produced until time of trial because Brady, Giglio and their progeny provide an independent basis for producing it earlier. Similarly, cases in which courts have declined to dismiss charges because of the prosecutor s failure to fulfil the prosecutor s Brady or Giglio obligations are not a license to ignore those obligations. cc: Elkan Abramowitz, Esq. Lawrence S. Bader, Esq. Edward J.M. Little

59 Austin V. Campriello, Esq. Mary Beth Buchanan, Esq. Marc Weinstein, Esq.

60 APPENDIX C

61 Hughes Hubbard Hughes Hubbaitl & Heed LU> O n e B attery Pntk Plaza N ew Y ork, N ew Y ork T elephone Fax; h u g h esliu b b ard cum E d w ard J.M. Little D ire c t D ial: iittle@ hugheshiibbiu:d,com April 29, 2014 Peirce R. Moser, Esq. Steven Pilnyak, Esq. Assistant District Attorneys Office of the District Attorney of New York County One Hogan Place New Y ork, New Y ork Re: People v. Steven Davis, Stephen DiCarmine, Joel Sanders and Zaoharv Warren, Indictment No. 773/2014 Deai' Messrs. Moser and Pilnyak: On behalf of our client Joel Sanders, we are making the following demands for discovery under Criminal Procedure Law ( CPL"), Article 240. Counsel for codefendants Steven Davis and: Stephen DiCarmine join in these demands on behalf of their clients. For tire purpose of these demands, property is defined broadly as it is under CPL 240,20(3), meaning any existing tangible personal or real property, including, but not limited to, books, records, reports, memoranda, papers, photographs, tapes or other electronic recordings... etc. \ We are hereby demanding discovery of all property which the prosecution intends to introduce at trial and/or which is material to the preparation of the defense, including but not limited to the following property in the possession or control of the Office of the District Attorney ( your Office ) and its,agents: 1, Any and all property provided by the trustee in bankruptcy for Dewey & LeBoeuf LLP ( Dewey ), his coimsel or his agents. 2, The platform, software, data and related materials comprising Dewey s accounting system, 3, Any and all property provided by the accounting firm Ernst & Young ( EY ) (or its counsel or agents), including but not limited to material provided by Dewey to EY, letters, s and correspondence between the N ew York W ashington, D.C.. Los A ngeles M iam i Jersey C ity Kiutsus L ily P a r i s * Tokyo

62 Peirce R, Moser, Esq,/Steven Pilnyak, Esq, April 29,2014 Page 2 two, audit workpapers, financial statements (drafts and finals), and the like. 4. Any and all property provided by the accounting firm PricewaterhouseCoopers ( PwC ) (dr its counsel or agents), including but not limited to material provided by Dewey or Dewey Ballantineto PwC, letters, s and correspondence between the entities, audit workpapers, financial statements (drafts and finals), and the like. 5. Any and all property provided by the banks (or their counsel or agents) who provided financing to Dewey or the banks counsel or agents, including but not limited to material provided by Dewey to the banks, letters, s and other correspondence between them, loan agreements (drafts and finals), credit memoranda, the banks internal documents relating to financing and approval of same, and the like. 6. Any and all property provided by the entities (or their counsel or agents) who invested in the bond or bonds issued by Dewey, including but not limited to material provided by Dewey to the entities, letters, s and other correspondence between or among Dewey, the private placement memorandum or memoranda (drafts and finals), the entities internal documents relating to the investment and approval of same, and the like. 7. Any and all property provided by any person or entity relating to Dewey s tax returns. 8. Any and all property provided by any former partner or employee of Dewey or their counsel or agents, 9. Any and all property provided, by The American Lawyer. \ 10. Any and all property provided by McKinsey & Company ( McKinsey ) relating to advice about tine merger of Dewey Ballantine and LeBoeuf Lamb or material submitted by others to McKinsey in that connection. 11. Any and all property provided by Paul Weiss Rifkind Wharton & Garrison LLP ( Paul Weiss ) relating to any legal work or advice provided to Dewey or any of the defendants or material submitted by others to Paul Weiss hi float connection. 12. Any and all property provided by anyone else relating to legal advice provided by Paul Weiss relating to any legal work or advice provided to Dewey or any of the defendants.

63 Peirce R, Moser, Esq./Steven Pilnyak, Esq. April 29, 2014 Page Any and all property provided by Bingham McCutchen LLP relating to legal work or advice provided to Dewey or any of the defendants. 14. Any and all property provided by private investigators relating to Dewey. 15. Any and all property provided by anyone else relating to Dewey, Dewey Ballandne, or LeBoeuf Lamb. 16. Any and all recordings to the interview of Zachary Warren, whether written, taped or electronically recorded. 17. Any and all materials and information described in CPL 240,20(l)(a)-(i). 18. In addition to any of the above that was provided by outside parties, any and all correspondence or Cover sheets submitted with or in connection with such property, materials or information. If any third party' has already produced material to your Office notwithstanding an assertion of attomey-clieiit privilege or attorney work product doctrine, we consider such assertion to have been waived by the production, We therefore request that if your Office is withholding any such material as a result of such assertion, you advise us of that fact. We request that you respond in detail and as expeditiously as possible as to whether you are declining to produce any property that is the subject of these demands so that we can seek, if necessary, a court order under CPL In addition, please consider this letter a request pursuant to CPL that you notify' each of these three defendants of all specific instances of any conduct of the type set forth in that section that you intend to use at trial. Finally, please provide a writteii response to our request for Brady arid Giglio material made by letter dated March 24, 2014, cc: Elkan Abramowitz, Esq. Lawrence S. Bader, Esq, Austin V, Campriello, Esq, Mary Beth Buchanan, Esq. Marc Weinstein, Esq. Edward J.M. Little

64 APPENDIX D

65 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 72 PEOPLE OF THE STATE OF NEW YORK, - against STEVEN DAVIS, STEPHEN DICARMINE, JOEL SANDERS, and ZACHARY WARREN, Ind. No. 773/2014 Defendants. REQUEST FOR A BILL OF PARTICULARS Defendant Joel Sanders makes the following request for a Bill of Particulars and Demand for Discovery pursuant to CPL Counsel for Defendants Steven Davis and Stephen DiCarmine join in this request on behalf of their clients. To be able to defend Mr. Sanders, Mr. Davis and Mr. DiCarmine (the Defendants ) properly against the charges in the often vague and conclusory Indictment filed in this Gase, we need real specifics about their alleged acts or omissions that supposedly support the charges. The Indictment is peppered with references to other people, acts and omissions that are never identified. Many of the allegations in the Indictment are written in the passive voice \ (e.g., fraudulent activities were engaged in )., making it impossible to determine what the People are alleging. To have an opportunity to prepare a defense against the charges, the Defendants must be informed what exactly the people are alleging. These requests seek factual information not provided in the Indictment; they are not questions about evidence. It is our understanding and belief that all the information requested herein is solely within the custody and control of the District Attorney s office.

66 Without the requested information the Defendants cannot adequately prepare or conduct their defense. Therefore, pursuant to CPL , die Defendants request that, within 15 days of service of this request the District Attorney serve upon the undersigned and file with the Court a Bill of Particulars specifying the following items of factual information for each count of the Indictment: by each offense charged. 1. Describe the substance of each Defendant s conduct encompassed a. Include a description of each Defendant s specific acts or omissions that allegedly constituted a scheme to defraud, the stealing of property and/or the making or causing of a false entry in an enterprise s business records, b. For each act or omission alleged, also set forth the specific date, time and place of the act or omission. c. For each act or omission alleged, also identify any other individuals whom the People allege participated in the act or omission. 2. State whether the People intend to prove that the particular \ Defendant acted as a principal, accomplice ox both. a. If charged as a principal, state how, and by whom, each Defendant was allegedly aided and abetted. b. If charged as an accomplice, state whom each Defendant allegedly aided and abetted, and how each Defendant aided and abetted that individual.

67 3 3. With respect to the allegation in Count One of the Indictment that the Schemers lied to and otherwise misled the Firm s partners and auditors, as well as others, specify: (a) The identity of each auditor to whom any Defendant allegedly lied, the identity of the Defendants) who allegedly lied, the date on which each alleged lie occurred and the substance of each alleged lie; (b) The identity of each auditor any Defendant allegedly misled, the identity of the Defendant(s) who allegedly misled that auditor, the date on which each alleged misleading statement occurred and the substance of each alleged misleading statement; (c) The identity of each partner to whom any Defendant allegedly lied, the identity of the Defendant(s) who allegedly lied, the date on which each alleged lie occurred and the substance of each alleged lie; (d) The identity of each partner any Defendant misled, the identity of the Defendants) who misled that auditor, the date on which each act of misleading occurred and the substance of each misleading statement; (e) The identity of each of the others to whom any Defendant lied, the identity of the Defendant(s) who lied, the date on which each lie occurred, and the substance of each lie; and (f) The identity of each of the "others any Defendant misled, the identity of the Defendant(s) who misled that other, the date on which each act of misleading occurred and the substance of each misleading statement, 4, With respect to the allegation in Count One Of the Indictment that The Schemers, themselves or working through others, withheld information and affirmatively concealed the Scheme when they were questioned by partners, including members of the Firm s Executive Committee, auditors, or others specify for eagh such occurrence: (a) its date; (b) die identity of the partner;

68 4 (c) the identity of the auditor; (d) the identity of.the other questioner; (e) the substance of the information; (f) whether it was withheld or affirmatively concealed; and (g) the identity of the Defendant or the other through whom the Defendant allegedly worked. 5. With respect to the allegation in Count One of the Indictment concerning die Private Placement that the Schemers provided potential investors and lenders with financial statements that falsely represented, among other things, that the firm had complied with its covenants, set forth for each Defendant: (a) each date on which he allegedly engaged in such conduct; (b) for each date, the identity of each investor entity to which he allegedly provided false statements; (c) for each date, the identity of each individual at each investor entity who allegedly received the false statements; (d) for each date, the identity of each lender entity to which he allegedly provided the false statements; (e) for each date, the identity of each individual at each lender entity who received the allegedly false statements; and (f) for each date, whether each Defendant engaged in such conduct personally or through another or others, and if through another or others, identify each such individual. 6. With respect to the allegation in Count One of the Indictment concerning the Private Placement that the Schemers provided potential investors with an offering memorandum that contained numerous misstatements, set forth for each Defendant:

69 5 (a) each date on which he allegedly engaged in such conduct; (b) for each date, the identity of each investor entity to which he allegedly provided the offering memorandum; (c.) for each date, the identity of each individual at each investor entity who allegedly received the offering memorandum; and (d) for each date, whether each Defendant allegedly engaged in such conduct personally or through another or others, and if through another or others, identify each such individual. 7, With respect to the allegations in Count One of the Indictment concerning bankruptcy, the substance of each Defendant s conduct that allegedly caused the bankruptcy, 8, With respect to the allegations in Count One of the Indictment concerning bankruptcy, the factual information that the People intend to prove at trial about the bankruptcy and its causes, 9, With respect to the allegations in Count One of the Indictment concerning job loss as a result of the bankruptcy, the substance of each Defendant s conduct that allegedly caused the job loss. 10, With respect to the allegations in Count One of the Indictment \ concerning job loss as a result of the bankruptcy, the factual information that the People intend to prove at trial about the job loss and its causes. 11, With respect to the allegations in Count One of the Indictment concerning creditors losses as a result of the bankruptcy, the substance of each Defendant s conduct that allegedly caused the creditors losses.

70 6 12. With respect to the allegations in Count One of the indictment concerning creditors tosses as a result of the bankruptcy, the factual information that the People intend to prove at trial about the Creditors losses andtheir causes. 13. With respect to the references in Count One of the Indictment to Schemers, specify for each use of the term Schemers whether the People allege that each of the Defendants was oiie of the individuals identified as the Schemers. 14. With respect to each instance of grand larceny alleged, as recited in Counts Two through Sixteen in the Indictment, speeify: Intent (a) Whether each of the Defendants intended to deprive each of the specified entities of property ; (b) whether each of the Defendants intended to appropriate each of the specified entities property to himself; (c) whether each of the Defendants intended to appropriate each of the specified entities property to another (and, if so, whom); (d) whether each of the Defendants intended to withhold each of the specified entities property; "Deprive \ (e) whether each of the Defendants intended to cause each of the specified entities property to he withheld (and, if so, by whom); (f) whether each of the Defendants intended to withhold each of the specified entities property permanently; (g) whether each of the Defendants intended to withhold each of the specified entities property for so extended a period that the major portion of its economic value or benefit is lost to the entity (and, if so, for what period); (h) Whether each of the Defendants intended to withhold each of the specified entities property under such circumstances that the major

71 7 portion of its economic value or benefit is lost to the entity (and, if so, under what circumstances); (i) whether each of the Defendants intended to dispose of each of the specified entities property in such manner as to render it unlikely that an owner Will recover such property (and, if so, what manner); 0) whether each of the Defendants intended to dispose of each of the specified entities property under such circumstances as to render it unlikely that an owner will recover such property (and, if so, under what circumstances); "Appropriate (k) whether each of the Defendants intended to exercise control over each of the specified entities property; (1) whether each of the Defendants intended to aid a third person to exercise control over each of the specified entities property (and, if so, who); (m) whether each of the Defendants intended to exercise control, or to aid third party to exercise control, over each of the specified entities property permanently; (n) whether each of the Defendants intended to exercise control, or to aid a third party to exercise control, over each of the specified entities property for so extended a period as to acquire the major portion of its economic value or benefit (and, if so, for what period); (o) whether each of the Defendants intended to exercise control, or to aid a third party to exercise control, over each of the specified entities property under such circumstances as to acquire the major portion of its economic value or benefit (and, if so, under what circumstances); (p) whether each of the Defendants intended to dispose of each of the specified entities property for the benefit of himself; and (q) whether each of the Defendants intended to dispose of each of the specified entities property for the benefit of a third person (and, if so, who). 15. With respect to each instance of grand larceny alleged, as recited in Counts Two through Sixteen in the Indictment, specify:

72 8 Means (a) whether each of the Defendants wrongfully took each of the specified entities pro,petty; (b) whether each of the Defendants wrongfully obtained each of the specified entities property; (c) whether each of the Defendants wrongfully withheld each of the specified entities property; (d) whether each of the Defendants engaged in conduct heretofore defined or known as common law larceny by trespassory taking; (e) whether each of the Defendants engaged in conduct heretofore defined or known as common law larceny by trick; (f) whether each of the Defendants engaged in conduct heretofore defined or known as embezzlement; (g) whether each of the Defendants engaged in conduct heretofore defined or known as obtaining property by false pretenses; (h) whether each of the Defendants engaged in a wrongful taking, obtaining or withholding of another s property by acquiring lost property; (i) whether each of the Defendants engaged in a wrongful taking, obtaining or withholding of another s property by committing the crime of issuing a bad check, as defined in Section of the Penal Law; (j) whether each of the Defendants engaged in a wrongful taking, obtaining or withholding of another s property by false promise; (k) whether each of the Defendants engaged in a wrongful taking, obtaining Or withholding of another s property by extortion. "False Promise" (1) whether each of the Defendants obtained the property of each of the specified entities by means of an express representation that he will in the future engage in particular conduct (and, if so, what conduct and when) when he did not intend to engage in such conduct; (m) whether each of the Defendants obtained the property of each of the specified entities by means of att express representation that a third person

73 9 will in the future engage in particular conduct (and, if so, what third person, what conduct and when) when he did not believe that die third person intended to engage in such conduct; (n) whether each of the Defendants obtained the property of each of the specified entities by means of an implied representation that he will in tire ftjture engage in particular conduct (and, if so, what conduct and when) when he did not intend to engage in such conduct; (o) whether each of the Defendants obtained the property of each of the specified entities by means of an implied representation that a third person will in the future engage in particular conduct (and, if so, what third person, what conduct and when) when he did not believe that the third person intended to engage in such conduct; 16, With respect to each instance of ^falsifying business records alleged, as recited in Counts Seventeen through One Hundred and Four in the Indictment, specify: (a) what aspect of each entry (identified in the People s Voluntary Disclosure Form) in the business records of each specified enterprise (identified in the Indictment) was allegedly false; (b) whether each of the Defendants made each allegedly false entry in the business records of each specified enterprise; (c) whether each of the Defendants caused each allegedly false entry in the business records of each specified enterprise to be made (and, if so, who made the entry); \ (d) whether each of the Defend ants made or caused each alleged false entry in the business records of each specified enterprise with the intent to commit another crime (and, if so, what crime(s)); (e) whether each of the Defendants made or caused each alleged false entry in the business records of each specified enterprise with the intent to conceal the commission of another crime (and, if so, what crime(s)); and (f) for eaeh allegedly false entry in the records of each specified enterprise, what condition or activity of that enterprise is evidenced or reflected by the record.

74 With respect to the Conspiracy charged in Count One Hundred And Six of the indictment, identify Employee C (Overt Acts 3, 7, 9,13,16, 26,28,30, 31,32, 37,47,50,51,52), Partner F (Overt Act 10, Overt Act 21), Employee D (Overt Acts 11,12,14,16,17,18), Employee E(Overt Acts 12,13, f5),partnerb (Overt Acts 20,26), Partner C (Overt Act 20), Employee A (Overt Act 21), Employee N (Overt Act 31), and Employee G (Overt Acts 50,51,52). others : 18. Identify the following individuals referred to in the Indictment as (a) The others at the Firm who allegedly engaged in a scheme (the Scheme ) to defraud the Firm s lenders (collectively dubbed the Schemers ). (b) The others (apart from the Finn s lenders ) whom die Schemers allegedly defrauded. (c) The others (apart from the Firm s partners and auditors ) who the Schemers allegedly lied to and otherwise misled to ensure the success of the Scheme. (d) The others through whom the Schemers allegedly worked to withhold information and conceal the scheme. 19. State who created a document.,. called the Master Plan, when \ it was created,.who received it, and who had knowledge of its existence. 20. Identify the following alleged actions, events or things described in the Indictment only as other : (a) The other fraudulent adjustments (apart from those allegedly described in the document called the Master Plan ) and other fraudulent conduct the Schemers allegedly engaged in from 2008 through (b) The otherq allegedly fraudulent accounting entries (apart from those described above in the Indictment) made in February 2009 to

75 11 enable the Firm to report to its lenders that it had satisfied the Cash Flow Covenant at year-end (c) The other covenants (apart from the Cash Flow Covenant) with which the Defendants allegedly misrepresented compliance. (d) The other fraudulent activities.., engaged, in, among other things, to conceal the Firm s breach of several of its covenants, who allegedly engaged in such other fraudulent activities, and the dates and times of the acts or omissions alleged to constitute such other fraudulent activities. (e) The other things (apart from misrepresent[ing] the Finn s financial condition and practices to potential investors and lenders ) the Schemers allegedly did or omitted to do to obtain financing through the private placement and revolving line of credit in April (f) The other things (apart from that the Firm had complied with its covenants ) that the Schemers allegedly falsely represented in financial statements provided to potential investors and lenders in Connection with the April 2010 private placement and revolving line of credit. (g) The other misstatements (apart from purport[ing] to disclose all the Firm s debt; stat[ing], in substance, that departing partners received their capital during the three years following their departure from the Firm; and statfing], in substance, that [cjlient disbursement receivables are written-off when deemed uncollectible ) allegedly contained in the offering memorandum provided to potential investors in the private placement. 21, For each write-off allegedly reversed improperly, specify (a) the \ ' write-off allegedly reversed, (b) the person(s) who allegedly reversed it, (c) the date and time the write-off was allegedly reversed, (d) what was allegedly improper about the reversal, (e) the value of the write-off allegedly reversed, (f) who allegedly ordered that the write-off be reversed, and (g) who allegedly made the fraudulent entry. 22. For each disbursement payment allegedly reclassified improperly, specify (a) the disbursement payment allegedly reclassified, (b) the person(s) who allegedly reclassified it, (c) the date and time the disbursement payment

76 12 was allegedly reclassified, (d) what was allegedly improper about the reclassification, (e) the value of the disbursement allegedly reclassified, (f) who allegedly ordered that the disbursement be reclassified, and (g) who allegedly made the fraudulent entry. 23. For the alleged $2.4 million write-off of charges to an American Express card described in the Indictment, specify (a) the person(s) who allegedly wrote off the charges, (b) when the charges were allegedly written off, (c) the person(s) who allegedly reversed the write-off, (d) when the write-off was allegedly reversed, (e) what was allegedly fraudulent about the reversal of the write off, and (f) the facts alleged to support the statement that the charges were not chargeable to clients. 24. For the compensation paid to, and amortization of business related to, two salaried;, non-equity partners allegedly improperly reclassified as equity partner compensation, specify (a) the two salaried, non-equity partners, (b) the [s]imilar amounts allegedly previously treated as expenses on the Firm s financial statements, (c) the person(s) who allegedly treated such fsjimilar amounts as expenses on the Firm s financial statements, (d) the dates and times such [sjimilar amounts were allegedly treated as expenses on the Firm s financial statements, and (e) what was \ allegedly improper about the reclassification. 25. With respect to the backdated checks allegedly sought from clients, specify (a) the person(s) who allegedly sought backdated checks, (b) the dates and times such person(s) allegedly sought backdated checks, (c) the cljent(s) from whom such person(s) allegedly sought backdated checks, (d) the person(s) who allegedly engaged in efforts to hide the date on which the checks were received, (e) the dates and times such persons engaged in efforts to hide the date on which the checks

77 13 Were received, and (f) the act(s) or omission(s) that Constituted efforts to hide the date on which the checks were received With respectto the more than $1 million that had been contributed by a partner to satisfy his capital requirement, specify (a) the partner who allegedly contributed the more than $1 million, (b) the person(s) who allegedly applied the hinds as a fee payment for the client of a different partner, (c) the client and different partner for whom the funds were allegedly applied as a fee payment, (d) the date and time the funds were allegedly applied as a fee payment, (e) the person(s) who allegedly backed out the funds from fees and applied them to the partner s capital account during 2010, (f) the date and time the funds were allegedly backed out from fees and applied to the partner s capital account during 2010, (g) the person(s) who allegedly applied the funds as a fee payment for tire same client for year-end 2010, and (h) the date and time the funds were allegedly applied as a fee payment for the same client for year-end For the $2.4 million in bank loans that allegedly benefited Mr. DiCarmine and Mr. Sanders, specify (a) Mr. Sanders and Mr. DiCarmine s act(s) or \ omission(s) that constituted structur[ing] the transaction so the loan repayment would increase the Firm s revenue for 2011, and (b) Which, if any, of such acts or omissions are alleged to be fraudulent, improper or unlawful. disclose. 28. Specify what debt the offering memorandum allegedly failed to 29. With respect to the client disbursement receivables deemed uncollectible and written-off during 2008, specify (a) the client disbursement

78 receivables that were deemed uncollectible and written-off during 2008, (b) the person(s) who deemed the client disbursement receivables uncollectible, (c) the date and time such receivables were deemed uncollectible, (d) the person(s) who wrote off the client disbursement receivables during 2008, (e) tire date and time such receivables were written off during 2008, (f) the person(s) who budgeted those amounts to be written off in 2009 instead, and (g) the date and time such amounts were budgeted to be written off in 2009 instead. 30. With respect to the [m]illions of dollars worth of client disbursement receivable write-offs allegedly reversed for year-end 2009, specify (a) the particular client disbursement write-offs allegedly reversed for year-end 2009, (b) the person(s) who allegedly wrote off those disbursements, (c) the date and time those disbursements were allegedly written off, (d) the persoh(s) who allegedly reversed the client disbursement write-offs for year-end 2009, (e) the date and time those write-offs were allegedly reversed, and (f) which, if any* of the reversals of write-offs are alleged to be fraudulent, improper or unlawful. If you refuse to comply with this request or any portion thereof, please take notice \ that yotlr refusal, under CPL (4), must fully set forth the grounds of your refusal, and explain why the item of factual information is not necessary to enable the Defendants to adequately prepare or conduct their defense, Or why a protective order would be warranted, or why the demand is untimely. Your refusal must he made in writing, served upon the undersigned, and filed with the Court within 15 days of this Request for a Bill of Particulars,

79 15 The Defendants reserve the right to supplement this Request for a Bill of Particulars. Dated: New York, New York May 28, 2013 HUGHES HUBBARD & REED LLP Marc A. Weinstein David B. Shames One Battery Park Plaza New York, New York (212) (telephone.) (212) (fax) Attorneys for Defendant Joel Sanders

80 APPENDIX E

81 Austin V. Cattipriello Voice: Fax: bfyancave.com BY Pdf AND REGULAR MAIL May 28,2014 / Bryan Gave LLP 1290 Avenue of the Americas New York, NY T e l(212)s41-200d F ax( Peirce Moser Assistant District Attorney New York County District Attorney s Office One Hogan Place New York, New York Dear Mr. Moser: Re: People v. Steven H. Davis, Joel Sanders, Stephen DiCarmine and Zachary Warren. Indictment. 773/2014 I am sending this letter on behalf of Messrs. Abramowitz and Little as well as myself. We understand based on out conversation of May 13th that you intend to respond to our discovery demands as a whole, once those demands are complete. We also understand you will respond to them approximately one month before our omnibus motions ate due on July 11th. On Match 26,2014, Mr. little sent to you by on behalf of defendants Davis, Sanders and DiCarmine a letter dated March 24, 2014 that contained detailed Brady/Giglio requests. On April 29,2014, Mr. Iitde sent you by on behalf of defendants Davis, Sanders and DiCarmine a formal Demand for Discovery. Today, Mr. Little sent to you by on behalf of defendants Davis, Sanders and DiCarmine a Request for a Bill of Particulars. This letter completes out requests for voluntary discovery from you. We write now asking for the production of: a log of all material produced to the DANY in its investigation concerning Dewey & LeBoeuf, which has not been clawed-back by the producing party, and which the DANY has.no.t produced to defendants in its voluntary production on the alleged basis of work product privilege or any other privilege; all privilege logs you received from any source, including but not limited to the Trustee for the Dewey & LeBoeuf Estate, Paul Weiss Rifkin Wharton & Garrison, E&Y, PwC, and Ptoskauet Rose; Bryan Cave Olflces Atlanta Boulder Charlotte Chicago Colorado Springs Dallas Denver Frankfurt Hamburg Hong Kong Irvine Jeiferson City Kansas City London Los Angeles N ew York Peris Phoenix San Francisco Shanghai Singapore St. Louis W ashington, DC Bryan Cave International Consulting A TRADE AND CUSTOMS COHSOirAHCV Bangkok Jakarta Kuala Lumpur M anila Shanghai Singapore Tokyo

82 Peirce Moser May 28, 2014 Page 2 Bryan Cave LLP all correspondence or other writings, whether in hard copy or electronic form, concerning any claw back based on an assertion of any privilege of material that has been provided to you (you advised Justice Stolz on May 13, 2014 that certain material that had been produced was retrieved from its source based on an assertion of privilege); all Compensation Committee records, including but not limited to spreadsheets showing compensation; all Operations Committee agendas and follow-up s from the Operations Committee; a complete set of the Executive Committee minutes; all agendas, minutes, materials, recordings, and. follow-up memoranda related to each Executive Strategic Weekend session (typically, three days of meetings and planning for the year, sometimes held in March or April); all agendas, minutes, materials, and recordings related to each firm retreat; and all materials concerning any compensation (regardless of source) that was received by Francis Canellas, Jyhjing Harrington, Ilya Alter, Lourdes Rodriguez, David Rodriguez, Dianne Cascino or Thomas Mullikin during the period that each of them was employed by Dewey & LeBoeuf or as a result of their employment at Dewey & LeBoeuf, You now have all of our requests. If you have questions about any of the requests, we would be happy to arrange a conference call at which we could discuss them with you. In any event, we would appreciate receiving the material we seek. If you decline to produce any material, we would appreciate your written declination with reasons for the rejection of each request that you reject, by noon on Friday, June 13, 2014, so we may address any issues in out omnibus motions. Thank you in advance for your cooperation., Cathpriello cc: Elkan Abramowitz, Esq. by pdf Edward J.M. Little, Esq. by pdf Paul Shechtman, Esq. by pdf

83 APPENDIX F

84 PEOPLE v. DAVIS et al., Ind. No. 773/2014 DEFENDANTS DISCOVERY REQUESTS AND DISTRICT ATTORNEY S RESPONSES Brady Request Letter (March 24,2014) Response to Discovery Letters (June 13,2014) 1) Any statement by any witness that the witness believes that there was no wrongdoing with respect to any one or more of the crimes charged in No direct responses. General response to all requests: the indictment or that any defendant is not guilty of any one or more of the crimes charged in the indictment. You make a series of requests pursuant to Brady v. 2) Any statement by any witness that persons other than the defendants Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 are guilty of the crimes charged in the indictment or are otherwise U.S. 150 (1972); People v. Cwikla, 46 N.Y. 2d 434 (1979); responsible for the actions or conduct described in the indictment. and CPL (1) (h). We are aw are of our continuing 3) Any agreement or assurance, direct or indirect, written or oral, or duties under Brady, Giglio and their progeny and will even just understood, to give a benefit of any kind to a prosecution honor our obligations. witness, including but not limited to an immunity agreement, a plea agreement, an agreement not to publicize a witness s guilty plea or to seal proceedings, an agreement to no bail or reduced bail, an agreement on sentencing, an agreement to assist in terms of imprisonment, an agreement not to seek fines or restitution, an agreement to assist a witness in connection with related civil proceedings, an agreement not to seek disbarment or revocation of a professional license or to recommend against disbarment or revocation of a professional license, or an agreement to assist in mitigating any potential collateral consequence of a guilty plea. 4) The existence of any document not otherwise produced by the prosecution indicating that the defendants were not responsible for the accounting treatments that are the subject of the indictment or for the representations in the bond offering. 5) The existence of any document not otherwise produced by the prosecution indicating that others were responsible for the accounting treatments that are the subject of the indictment or for the representations in the bond offering. 6) The existence of any document not otherwise produced by the prosecution indicating that Ernst & Young was aware of any of the

85 Defendants Discovery Requests and District Attorney s Reponses accounting treatments that are the subject of the indictment. 7) The existence of any document not otherwise produced by the prosecution indicating that partners of Dewey & LeBoeuf, including members of its Executive Committee, were aware of any of the accounting treatments that are the subject of the Indictment 8) Any instance in which any witness changed his or her statement as to the existence of any wrongdoing with respect to one or more of the crimes charged in the indictment or as to the guilt or innocence of a defendant. 9) Any prior convictions, pending charges or investigations of a prosecution witness or evidence that he or she lies or has lied or is or was deceptive or fraudulent. 10) Any information that a prosecution witness is biased against any defendants or has a motive to lie or distort his or her testimony. 11) Any use of illegal drugs or misuse of prescribed drugs by a prosecution witness. 12) The existence of any mental illness of a prosecution witness or the psychiatric treatment of such a witness for any mental illness. Discovery Request Letter (April 29,2014) Response to Discovery L etters (June 13,2014) 1) Any and all property provided by the trustee in bankruptcy for Dewey & LeBoeuf LLP ( Dewey ), his counsel or his agents. 1) We have produced all responsive property in our possession, with the exception of certain lists of employees and documents that were clawed back by Dewey & LeBoeuf LLP or the Dewey & LeBoeuf Liquidation Trust ( Dewey ) under a claim of Privilege. 2) The platform, software, data and related materials comprising Dewey s accounting system. 2) The DA has still not provided access, but states: We are working with Dewey to provide Counsel the 2

86 Defendants Discovery Requests and District Attorney s Reponses same access to the Dewey accounting system that we have. 3) Any and all property provided by the accounting firm Ernst & Young ( EY )(or its counsel or agents), including but not limited to material provided by Dewey to EY, letters, s and correspondence between the two, audit workpapers, financial statements (drafts and finals), and the like. 4) Any and all property provided by the accounting firm PricewaterhouseCoopers ( PwC ) (or its counsel or agents), including but not limited to material provided by Dewey or Dewey Ballantine to PwC, letters, s and correspondence between the entities, audit workpapers, financial statements (drafts and finals), and the like. 5) Any and all property provided by the entities (or their counsel or agents) who invested in the bond or bonds issued by Dewey, including but not limited to material provided by Dewey to the entities, letters, s and other correspondence between or among Dewey, the private placement memorandum or memoranda (drafts and finals), the entities internal documents relating to the investment and approval of same, and the like. 3) We have produced all responsive property in our possession, with the exception o f certain employee lists and certain work paper lists. 4) We have produced all responsive property in our possession. 5) We have produced all responsive property in our possession. Except paperwork relating to a car loan given to one individual who is not a defendant 6) Any and all property provided by the banks (or their counsel or agents) who provided financing to Dewey or the banks counsel or agents, including but not limited to material provided by Dewey to the banks, letters, s and other correspondence between them, loan agreements (drafts and finals), credit memoranda, the banks internal documents relating to financing and approval o f same, and the like. 6) We have produced all responsive property in our possession. Except two documents that relate to how an entitv determined property responsive to a Grand Jury subpoena 3

87 Defendants Discovery Requests and District Attorney s Reponses 7) Any and all property provided by any person or entity relating to Dewey s tax returns. 8) Any and all property provided by any former partner or employee of Dewey or their counsel or agents. 9) Any and all property provided by The American Lawyer. 10) Any and all property provided by McKinsey & Company ( McKinsey ) relating to advice about the merger of Dewey Ballantine and LeBoeuf Lamb or material submitted by others to McKinsey in that connection. 11) Any and all property provided by Paul Weiss Rifkind Wharton & Garrison LLP ( Paul Weiss ) relating to any legal work or advice provided to Dewey or any of the defendants or material submitted by others to Paul Weiss in that connection. 12) Any and all property provided by anyone else relating to legal advice provided by Paul Weiss relating to any legal work or advice provided to Dewey or any of the defendants. 13) Any and all property provided by Bingham McCutchen LLP relating to legal work or advice provided to Dewey or any of the defendants. 14) Any and all property provided by private investigators relating to Dewey. 7) To the extent responsive property exists and has not otherwise been produced, the defendants are not entitled to it at this time. 8) To the extent responsive property exists, the defendants are not entitled to it at this time. 9) To the extent responsive property exists, the defendants are not entitled to it at this time. 10) To the extent responsive property exists, the defendants are not entitled to it at this time. 11) To the extent responsive property exists, the defendants are not entitled to it at this time. 12) To the extent responsive property exists and has not otherwise been produced, the defendants are not entitled to it at this time. 13) To the extent responsive property exists, the defendants are not entitled to it at this time. 14) To the extent responsive property exists, the defendants are not entitled to it at this time. 4

88 Defendants Discovery Requests and District Attorney s Reponses 15) Any and all property provided by anyone else relating to Dewey, Dewey Ballantine, or LeBoeuf Lamb. 16) Any and all recordings to the interview of Zachary Warren, whether written, taped or electronically recorded. 17) Any and all materials and information described in CPL ) (I)(a)-(i), 18) In addition to any of the above that was provided by outside parties, any and all correspondence or cover sheets submitted with or in connection with such property, materials or information. Third-Party Material: All material produced to the DA notwithstanding an assertion of attomey-client or attorney work product doctrine, we consider such assertion to have been waived by the production. CPL : Request for notification to each defendant o f all specific instances of any conduct of the type set forth in that section that you intend to use at trial. 15) To the extent responsive property exists and has not otherwise been produced, the defendants are not entitled to it at this time. 16) To the extent responsive property exists, the defendants are not entitled to it at this time. 17) We have provided all responsive material and have complied w ith our obligations under CPL (l)(a)- (i). 18) To the extent responsive property exists and has not otherwise been produced, the defendants are not entitled to it at this time. No response [T]he defendants are not entitled to this information at this time. 5

89 Defendants Discovery Requests and District Attorney s Reponses Discovery Request Letter (May 28,2014) Response to Discovery Letters (June 13,2014) a log of all material produced to the DANY in its investigation concerning Dewey & LeBoeuf, which has not been clawed-back by To the extent a responsive log exists, the defendants are the producing party, and which the DANY has not produced to not entitled to it. defendants in its voluntary production on the alleged basis of work product privilege or any other privilege; all privilege logs you received from any source, including but not limited to the Trustee for the Dewey & LeBoeuf Estate, Paul Weiss Rifkin Wharton & Garrison, E&Y, PwC, and Proskauer Rose; To the extent responsive privilege logs exist and have not otherwise been produced, the defendants are not entitled to them. all correspondence or other writings, whether in hard copy or electronic form, concerning any claw back based on an assertion of any privilege of material that has been provided to you (you advised Justice Stolz on May 13, 2014 that certain material that had been produced was retrieved from its source based on an assertion of privilege); all Compensation Committee records, including but not limited to spreadsheets showing compensation; all Operations Committee agendas and follow-up s from the Operations Committee; a complete set o f the Executive Committee minutes; all agendas, minutes, materials, recordings, and follow-up memoranda related to each Executive Strategic Weekend session (typically, three To the extent responsive correspondence or other writings exist, the defendants are not entitled to them. To the extent responsive records exist and have not otherwise been produced, the defendants are not entitled to them at this time. To the extent responsive records exist and have not otherwise been produced, the defendants are not entitled to them at this time. To the extent responsive minutes exist and have not otherwise been produced, the defendants are not entitled to them at this time. To the extent responsive records exist and have not 6

90 Defendants Discovery Requests and District Attorney s Reponses days of meetings and planning for the year, sometimes held in March or April); all agendas, minutes, materials, recordings, and follow-up memoranda related to each Executive Strategic Weekend session (typically, three days of meetings and planning for the year, sometimes held in March or April); all materials concerning any compensation (regardless of source) that was received by Francis Canellas, Jyhjing Harrington, Ilya Alter, Lourdes Rodriguez, David Rodriguez, Dianne Cascino or Thomas Mullikin during the period that each o f them was employed by Dewey & LeBoeuf or as a result of their employment at Dewey & LeBoeuf. otherwise been produced, the defendants are not entitled to them at this time. To the extent responsive records exist and have not otherwise been produced, the defendants are not entitled to them at this time. To the extent responsive materials exist and have not otherwise been produced, the defendants are not entitled to them at this time. Request for a Bill of Particulars (May 2 8,2014) Response to Discovery Letter (June 13,2014) 1 (a-c): Describe the substance of each Defendant s conduct encompassed by each offense charged (including descriptions of each Defendant s Defendants are not entitled to any other acts/omissions or fraudulent entries, the date place and time, and the identity of information beyond what has been provided in the others who participated in the act/omission. indictment; the VDF; the Plea and Cooperation Agreements of the seven cooperators; the Statement of Facts; and the Disclosures - Falsifying Business Records Counts, served in court on all counsel on April 21, (a-b): State whether the People intend to prove that the particular Defendant acted as a principal, accomplice or both. (If charged as either principal or accomplice state either who aided and abetted the Defendant, or who the Defendant aided and abetted.) The defendants acted as both principals and accomplices with respect to the counts in which they are charged. No response to other questions 3(a): With respect to the allegation in Count One of the Indictment that the Schemers lied to and otherwise misled the Firm s partners and auditors, as well Defendants are not entitled to any other 7

91 Defendants Discovery Requests and District Attorney s Reponses as others, specify: The identity of each auditor to whom any Defendant allegedly lied, the identity of the Defendant(s) who allegedly lied, the date on which each alleged lie occurred and the substance of each alleged lie; 3(b): The identity of each auditor any Defendant allegedly misled, the identity of the Defendant(s) who allegedly misled that auditor, the date on which each alleged misleading statement occurred and the substance o f each alleged misleading statement; 3(c): The identity of each partner to whom any Defendant allegedly lied, the identity o f the Defendant(s) who allegedly lied, the date on which each alleged lie occurred and the substance of each alleged lie; 3(d): The identity of each partner any Defendant misled, the identity of the Defendant(s) who misled that auditor, the date on which each act o f misleading occurred and the substance of each misleading statement; 3(e): The identity of each of the others to whom any Defendant lied, the identity of the Defendant( s) who lied, the date on which each lie occurred, and the substance of each lie; 3(f): The identity of each of the others any Defendant misled, the identity of the Defendant(s) who misled that other, the date on which each act of misleading occurred and the substance o f each misleading statement. 4 (a-g): With respect to the allegation in Count One of the Indictment that The Schemers, themselves or working through others, withheld information and affirmatively concealed the Scheme when they were questioned by partners, including members of the Firm s Executive Committee, auditors, or others specify for each such occurrence: (a) its date; (b) the identity of the partner; (c) the identity of the auditor; (d) the identity o f the other questioner; (e) the substance of the information; (f) whether it was withheld or affirmatively concealed; and (g) the identity of the Defendant or the other through whom the Defendant allegedly worked. 5(a): With respect to the allegation in Count One of the Indictment concerning the Private Placement that the Schemers provided potential investors and lenders with financial statements that falsely represented, among other things, information beyond what has been provided in the indictment; the VDF; the Plea and Cooperation Agreements of the seven cooperators; the Statement of Facts; and the Disclosures - Falsifying Business Records Counts, served in court on all counsel on April 21,

92 Defendants Discovery Requests and District Attorney s Reponses that the firm had complied with its covenants, set forth for each Defendant: each date on which he allegedly engaged in such conduct; 5(b): for each date, the identity of each investor entity to which he allegedly provided false statements; 5(c): for each date, the identity of each individual at each investor entity who allegedly received the false statements; 5(d): for each date, the identity of each lender entity to which he allegedly provided the false statements; 5(e): for each date, the identity of each individual at each lender entity who received the allegedly false statements; 5(f): for each date, whether each Defendant engaged in such conduct personally or through another or others, and if through another or others, identify each such individual. 6(a): With respect to the allegation in Count One of the Indictment concerning the Private Placement that the Schemers provided potential investors with an offering memorandum that contained numerous misstatements, set forth for each Defendant: each date on which he allegedly engaged in such conduct; 6(b): for each date, the identity of each investor entity to which he allegedly provided the offering memorandum; 6(c): for each date, the identity of each individual at each investor entity who allegedly received the offering memorandum; 6(d): for each date, whether each Defendant allegedly engaged in such conduct personally or through another or others, and if through another or others, identify each such individual. 7: With respect to the allegations in Count One of the Indictment concerning bankruptcy, the substance of each Defendant s conduct that allegedly caused the bankruptcy. 8: With respect to the allegations in Count One of the Indictment concerning bankruptcy, the factual information that the People intend to prove at trial about the bankruptcy and its causes. 9

93 Defendants Discovery Requests and District Attorney s Reponses 9: With respect to the allegations in Count One of the Indictment concerning job loss as a result of the bankruptcy, the substance of each Defendant s conduct that allegedly caused the job loss. 10: With respect to the allegations in Count One of the Indictment concerning job loss as a result of the bankruptcy, the factual information that the People intend to prove at trial about the job loss and its causes. 11: With respect to the allegations in Count One of the Indictment concerning creditors losses as a result o f the bankruptcy, the substance of each Defendant s conduct that allegedly caused the creditors losses. 12: With respect to the allegations in Count One of the indictment concerning creditors losses as a result of the bankruptcy, the factual information that the People intend to prove at trial about the creditors losses and their causes. 13: With respect to the references in Count One of the Indictment to Schemers, specify for each use of the term Schemers whether the People allege that each of the Defendants was one of the individuals identified as the Schemers. 14: With respect to each instance o f grand larceny alleged, as recited in Counts Two through Sixteen in the Indictment, specify: Intent. (see Bill of Particulars, p.6-7, for full definition). 15: With respect to each instance of grand larceny alleged, as recited in Counts Two through Sixteen in the Indictment, specify: Means. (see Bill of Particulars, p.8-9, for full definition). 16(a): With respect to each instance of falsifying business records alleged, as recited in Counts Seventeen through One Hundred and Four in the Indictment, specify: what aspect of each entry (identified in the People s Voluntary Disclosure Form) in the business records of each specified enterprise (identified in the Indictment) was allegedly false; 16(b): whether each of the Defendants made each allegedly false entry in the business records o f each specified enterprise; 16(c): whether each o f the Defendants caused each allegedly false entry in the 10

94 Defendants Discovery Requests and District Attorney s Reponses business records of each specified enterprise to be made (and, if so, who made the entry); 16(d): whether each of the Defendants made or caused each alleged false entry in the business records of each specified enterprise with the intent to commit another crime (and, if so, what crime(s)); 16(e): whether each of the Defendants made or caused each alleged false entry in the business records of each specified enterprise with the intent to conceal the commission o f another crime (and, if so, what crime(s)); 16(f): for each allegedly false entry in the records of each specified enterprise, what condition or activity o f that enterprise is evidenced or reflected by the record. 17: With respect to the Conspiracy charged in Count One Hundred And Six of the indictment, identify Employee C (Overt Acts 3, 7, 9, 13, 16, 26, 28, 30, 31, 32, 37, 47, 50, 51, 52), Partner F (Overt Act 10, Overt Act 21), Employee D (Overt Acts 11, 12, 14, 16, 17, 18), Employee E (Overt Acts 12, 13, 15), Partner B (Overt Acts 20, 26), Partner C (Overt Act 20), Employee A (Overt Act 21), Employee N (Overt Act 31), and Employee G (Overt Acts 50, 51, 52). others: 18(a): Identify the following individuals referred to in the Indictment as others : The others at the Firm who allegedly engaged in a scheme (the Scheme ) to defraud the Firm s lenders (collectively dubbed the Schemers ). 18(b): The others (apart from the Firm s lenders ) whom the Schemers allegedly defrauded. 18(c): The others (apart from the Firm s partners and auditors ) who the Schemers allegedly lied to and otherwise misled to ensure the success of the Scheme. 18(d): The others through whom the Schemers allegedly worked to withhold information and conceal the scheme. 19: State who created a docum ent... called the Master Plan, when it was created,.who received it, and who had knowledge o f its existence. 20(a): Identify the following alleged actions, events or things described in the 11

95 Defendants Discovery Requests and District Attorney s Reponses Indictment only as other : The other fraudulent adjustments (apart from those allegedly described in the document called the Master Plan ) and other fraudulent Conduct the Schemers allegedly engaged in from 2008 through (b): The other[] allegedly fraudulent accounting entries (apart from those described above in the Indictment) made in February 2009 to 11 enable the Firm to report to its lenders that it had satisfied the Cash Flow Covenant at year-end (c): The other covenants (apart from the Cash Flow Covenant) with which the Defendants allegedly misrepresented compliance. 20(d): The other fraudulent activities... engaged in, among other things, to conceal the Firm s breach of several of its covenants, who allegedly engaged in such other fraudulent activities, and the dates and times of the acts or omissions alleged to constitute such other fraudulent activities. 20(e): The other things (apart from misrepresentfing] the Firm s financial condition and practices to potential investors and lenders ) the Schemers allegedly did or omitted to do to obtain financing through the private placement and revolving line o f credit in April (f): The other things (apart from that the Firm had complied with its covenants ) that the Schemers allegedly falsely represented in financial statements provided to potential investors and lenders in connection with the April 2010 private placement and revolving line o f credit. 20(g): The other misstatements (apart from purporting] to disclose all the Firm s debt; stat[ing], in substance, that departing partners received their capital during the three years following their departure from the Firm; and staffing], in substance, that [ c Jlient disbursement receivables are written-off when deemed uncollectible 4) allegedly contained in the offering memorandum provided to potential investors in the private placement. 21: For each write-off allegedly reversed improperly, specify (a) the write-off allegedly reversed, (b) the person(s) who allegedly reversed it, (c) the date and time the write-off was allegedly reversed, (d) what was allegedly improper about the reversal, (e) the value o f the write-off allegedly reversed, (f) who 12

96 Defendants Discovery Requests and District Attorney s Reponses allegedly ordered that the write-off be reversed, and (g) who allegedly made the fraudulent entry. 22: For each disbursement payment allegedly reclassified improperly, specify (a) the disbursement payment allegedly reclassified, (b) the person(s) who allegedly reclassified it, (c) the date and time the disbursement payment was allegedly reclassified, (d) what was allegedly improper about the reclassification, (e) the value of the disbursement allegedly reclassified, (f) who allegedly ordered that the disbursement be reclassified, and (g) who allegedly made the fraudulent entry. 23: For the alleged $24 million write-off of charges to an American Express card described in the Indictment, specify (a) the person(s) who allegedly wrote off the charges, (b) when the charges were allegedly written off, (c) the person(s) who allegedly reversed the write-off, (d) when the write-off was allegedly reversed, (e) what was allegedly fraudulent about the reversal of the write off, and (f) the facts alleged to support the statement that the charges were not chargeable to clients. 24: For the compensation paid to, and amortization of business related to, two salaried, non-equity partners allegedly improperly reclassified as equity partner compensation, specify (a) the two salaried, non-equity partners, (b) the [sjimilar amounts allegedly previously treated as expenses on the Firm s financial statements, (c) the person(s) who allegedly treated such [sjimilar amounts as expenses on the Firm s financial statements, (d) the dates and times such [sjimilar amounts were allegedly treated as expenses on the Firm s financial statements, and (e) what was allegedly improper about the reclassification. 25: With respect to the backdated checks allegedly sought from clients, specify (a) the person(s) who allegedly sought backdated checks, (b) the dates and times such person(s) allegedly sought backdated checks, (c) the client(s) from whom such person(s) allegedly sought backdated checks, (d) the person(s) who allegedly engaged in efforts to hide the date on which the checks were received, (e) the dates and times such persons engaged in efforts to hide the date on which the checks were received, and (f) the act(s) or omission(s) that constituted efforts to hide the date on which the checks were 13

97 Defendants Discovery Requests and District Attorney s Reponses received. 26: With respect to the more than $1 million that had been contributed by a partner to satisfy his capital requirement, specify (a) the partner who allegedly contributed the more than $1 million, (b) the person(s) who allegedly applied the funds as a fee payment for the client of a different partner, (c) the client and different partner for whom the funds were allegedly applied as a fee payment, (d) the date and time the funds were allegedly applied as a fee payment, (e) the person(s) who allegedly backed out the funds from fees and applied them to the partner s capital account during 2010, (f) the date and time the funds were allegedly backed out from fees and applied to the partner s capital account during 2010, (g) the person(s) who allegedly applied the funds as a fee payment for the same client for yearend 2010, and (h) the date and time the funds were allegedly applied as a fee payment for the same client for year-end : For the $24 million in bank loans that allegedly benefitted Mr. DiCarmine and Mr. Sanders, specify (a) Mr. Sanders and Mr. DiCarmine s act(s) or omission(s) that constituted structur[ing] the transaction so the loan repayment would increase the Firm s revenue for 2011, and (b) which, if any, o f such acts or omissions are alleged to be fraudulent, improper or unlawful. 28: Specify what debt the offering memorandum allegedly failed to disclose. 29: With respect to the client disbursement receivables deemed uncollectible and written-off during 2008, specify (a) the client disbursement receivables that were deemed uncollectible and written-off during 2008, (b) the person(s) who deemed the client disbursement receivables uncollectible, (c) the date and time such receivables were deemed uncollectible, (d) the person(s) who wrote off the client disbursement receivables during 2008, (e) the date and time such receivables were written off during 2008, (f) the person(s) who budgeted those amounts to be written off in 2009 instead, and (g) the date and time such amounts were budgeted to be written off in 2009 instead. 30: With respect to the [m illions of dollars worth of client disbursement receivable write-offs allegedly reversed for year-end 2009, specify (a) the particular client disbursement write-offs allegedly reversed for year-end 2009, (b) the person(s) who allegedly wrote off those disbursements, (c) the date and 14

98 Defendants Discovery Requests and District Attorney s Reponses time those disbursements were allegedly written off, (d) the person(s) who allegedly reversed the client disbursement write-offs for year-end 2009, (e) the date and time those write-offs were allegedly reversed, and (f) which, if any, of the reversals o f write-offs are alleged to be fraudulent, improper or unlawful. 15

99 APPENDIX G

100 DISTRICT ATTORNEY OFTHE COUNTY: 0F-iNEW YORK ONE HOGAN PLACE New Y o ^ rn. Y (212) C YRUS R, V A N C E,J R. DISTRICT ATTORNEY April 21,2014 B v Hand Elkan Abramowitz, Esq. Morvillo Abramowitz Grand Iason & Anello PC 565 Fifth Avenue, New York, New York Dear Elkan: Re: People v. Davis. DiCaimine. Sanders, and Warren, Tnd. 772/2014 Enclosed is a compact disc containing documents related to the First Degree Falsifying Business Records counts in which your client was charged in the abovereferenced indictment Documents in the following Bates ranges ate included: Count 17: Bates Range NYDA through NYDA Count 18: Bates Range N YD A through NYDA Count 19: Bates Range NYDA through NYDA Count 20: Bates Range NYDA through NYDA Count 21: Bates Range NYDA through NYDA Count 22: Bates Range NYDA Count 23: Bates Range NYDA Count 24: Bates Range NYDA through NYDA Count 25: Bates Range NYDA through NYDA Count 26: Bates Range NYDA through NYDA Count 27: Bates Range NYDA through NYDA Count 28: Bates Range NYDA through NYDA Count 29: Bates Range NYDA Count 30: Bates Range NYDA through NYDA Count 31: Bates Range NYDA Count 32: Bates Range NYDA Count 33: Bates Range NYDA through NYDA Count 34: Bates Range NYDA through NYDA Count 35: Bates Range NYDA Count 36: Bates Range NYDA through NYDA Count 37: Bates Range NYDA through NYDA

101 Elkan Abramowitz, Esq. April 21,2014 Page 2 Count 38: Bates Range NYDA through NYDA Count 39: Bates Range NYDA through NYDA Count 40: Bates Range NYDA through NYDA Count 41: Bates Range NYDA through NYDA Count 42: Bates Range NYDA through NYDA Count 43: Bates Range NYDA through NYDA Count 44: Bates Range NYDA through NYDA Count 45: Bates Range NYDA Count 46: Bates Range NYDA Count 47: Bates Range NYDA Count 48: Bates Range NYDA Count 49: Bates Range NYDA through NYDA Count 50: Bates Range NYDA through NYDA Count 62: Bates Range NYDA through NYDA Count 63: Bates Range NYDA through NYDA Count 64: Bates Range NYDA through NYDA Count 65: Bates Range NYDA through NYDA Count 66: Bates Range NYDA through NYDA Count 67: Bates Range NYDA through NYDA Count 68: Bates Range NYDA through NYDA Count 69: Bates Range NYDA through NYDA Count 70: Bates Range NYDA Count 71: Bates Range NYDA through NYDA Count 72: Bates Range NYDA through NYDA Count 73: Bates Range NYDA through NYDA Count 74: Bates Range NYDA through NYDA Additionally, enclosed please find a chart that collects particulars regarding all First Degree Falsifying Business Records counts contained in indictments 5393/2013 and 773/2014. This information was contained in the indictments or was previously disclosed voluntarily. Ends. Peirce R. Moser Assistant District Attorney cc: Hon. Robert M. Stolz (w/out compact disc end.)

102 Count Ind. 773/2014 (Ind. 5393/2013) 17(6) 18(5) 19(1) Disclosures Falsifying Business Records Counts People v. Davis. DiCarmine* Sanders, and W arren. Ind. 773/2014 and People v. Warren. (Ind. 5393/2013) Date ot Range (on or around) from Ind. 773/2014 (Ind. 5393/2013) January 8, 2009 (December 30,2008 to January 8, 2009) January 5, 2009 (December 30, 2008 to January 5, 2009) January 2, 2009 (December 30, 2008 to January 2, 2009) Enterprise Dewey & LeBoeuf LLP Dewey & LeBoeuf LLP Dewey & LeBoeuf LLP Disclosure Reversing disbursement write-offs, Elite batch GJ Reclassifying disbursement payments, Elite batch GJ Reclassifying disbursement retainer; Elite batch GJ January 12,2009 Dewey & LeBoeuf LLP Great British Pound exchange rate 21 January 9, 2009 Dewey & LeBoeuf LLP Reversing credit card write-offs, Elite batch GT (3) 23(4) January 5,2009 (December 30, 2008 to January 5, 2009) January 5,2009 (December 30,2008 to January 5, 2009) Dewey & LeBoeuf LLP Dewey & LeBoeuf LLP 24 January 4, 2010 Dewey & LeBoeuf LLP 25 January 13, 2010 Dewey & LeBoeuf LLP 26 January 13, 2010 Dewey & LeBoeuf LLP 27 January 13, 2010 Dewey & LeBoeuf LLP One London Wall reverse premium, Elite batch VH010509NY, Entry Austin lease termination fee, Elite batch VH010509NY, Entry Reversing disbursement write-offs for account 6305, Elite batch GJ Reversing disbursement write-offs for account 6300, Elite batch GJ Reclassifying disbursement payments, Elite batch GJ Fictitious client payment, Elite batch GJ

103 Count - Ind. 773/2314 (Ind. 5393/2013) Falsifying Business Records Counts Disclosures People v. Davis. DiCarmine. Sanders, and W arren. Ind. 773/2014 and People v. W arren. (Ind. 5393/2013) Date or Range (on or around) from Ind. 773/2014 (Ind. 5393/2013) Enterprise 28 January 13, 2010 Dewey & LeBoeuf LLP 29 January 7, 2010 Dewey & LeBoeuf LLP Disclosure Applying partner capital as fee revenue, Elite batch GT Applying partner capital loans to increase net income, Elite batch GJ December 2009 to January 2010 Dewey & LeBoeuf LLP Backdated check 31 December 2009 to January 2010 Dewey & LeBoeuf LLP Payroll checks. Elite batch NB123109VD 32 December 2009 to January 2010 Dewey & LeBoeuf LLP Vendor checks, Elite batch LR123109BB 33 January 11, 2010 Dewey & LeBoeuf LLP 34 January 13, 2010 Dewey & LeBoeuf LLP 35 December 2010 to January 2011 Dewey & LeBoeuf LLP 36 January 11,2011 Dewey & LeBoeuf LLP 37 January 10,2011 Dewey & LeBoeuf LLP 38 January 10, 2011 Dewey & LeBoeuf LLP 39 January 10,2011 Dewey & LeBoeuf LLP 40 January 10, 2011 Dewey & LeBoeuf LLP 41 January 10,2011 Dewey & LeBoeuf LLP Reclassifying payments as return of capital, Elite batch BN A Reversing credit card write-offs, Elite batch GJ Reversing write-off, EEte batch NB123110HA Reversing disbursement write-offs for account 6300, Elite batch GJ Reclassifying disbursement payments, Elite batch GT Reclassifying disbursement payments, Elite batch GJ Reclassifying disbursement payments, Elite batch GJ Reclassifying disbursement payments, EEte batch GJ Reclassifying disbursement payments, EEte batch GT

104 Count Ind. 773/2014 (Ind. 5393/2013) Falsifying Business Records Counts Disclosures People v. Davis. D icarm ine. Sanders, and Warren. Ind. 773/2014 and People v. W arren, (Ind. 5393/2013) Date or Range (on or around) from Ind. 773/2014 (Ind. 5393/2013) Enterprise 42 January 10, 2011 Dewey & LeBoeuf LLP 43 January 10, 2011 Dewey & LeBoeuf LLP 44 January 14, 2011 Dewey & LeBoeuf LLP 45 February 14,2011 Dewey & LeBoeuf LLP 46 December 30,2010 Dewey & LeBoeuf LLP 47 February 2,2011 Dewey & LeBoeuf LLP 48 February 10, 2011 Dewey & LeBoeuf LLP 49 November 15, 2010 Dewey & LeBoeuf LLP 50 January 11,2011 Dewey & LeBoeuf LLP 51 Match 31,2011 to April 5, 2011 Dewey & LeBoeuf LLP Invoice # March 31, 2011 to April 5, 2011 Dewey & LeBoeuf LLP Invoice # March 31, 2011 to ApriL 5, 2011 Dewey & LeBoeuf LLP Invoice # March 31, 2011 to April 5, 2011 Dewey & LeBoeuf LLP Invoice # March 31, 2011 to April 5,2011 Dewey & LeBoeuf LLP Invoice # March 31,2011 to April 5, 2011 Dewey & LeBoeuf LLP Invoice # March 31, 2011 to April 5,2011 Dewey & LeBoeuf LLP Invoice # March 31,2011 to April 5,2011 Dewey & LeBoeuf LLP Invoice # Disclosure Reclassifying disbursement payments, Elite batch GT Reclassifying disbursement payments, Elite batch GT Reclassifying payments as return of capital, Elite batch BN M Reclassifying payments to defendant Davis as return of capital, Elite batch DR R Reclassifying bonus payments, Elite batch VH NY Reclassifying foreign payroll, Elite batch MD NY United Kingdom tax refund, Elite batch AC123110LO Reversing credit card write-offs, Elite batch GJ Applying partner capital as fee revenue, Elite batch GT

105 Count Ind. f 73/2014 (Ind. 5393/2013), Falsifying Business R ecords Counts D isclosures People v. Davis. DiCarmine. Sanders, and Warren.. Ind. 773/2014 and People v. W arren. (Ind. 5393/2013) Date ox Range (on ox around) from Ind. 773/2014 (Ind. 5393/2013) Enterprise 59 March 31,2011 to April 5,2011 Dewey & LeBoeuf LLP Invoice # March 31,2011 to April 5,2011 Dewey & LeBoeuf LLP Invoice # March 31, 2011 to April 5,2011 Dewey & LeBoeuf LLP Invoice # November 8,2011 Dewey & LeBoeuf LLP 63 January 10, 2012 Dewey & LeBoeuf LLP 64 January 10, 2012 Dewey & LeBoeuf LLP 65 January 10, 2012 Dewey & LeBoeuf LLP 66 January 10,2012 Dewey & LeBoeuf LLP 67 January 10,2012 Dewey & LeBoeuf LLP 68 December 28, 2011 Dewey & LeBoeuf LLP 69 January 5,2012 Dewey & LeBoeuf LLP 70 January 17,2012 Dewey & LeBoeuf LLP 71 December 2011 to January 2012 Dewey & LeBoeuf LLP Disclosure Reversing disbursement write-offs for account 6305, Elite batch GJ Reversing disbursement write-offs for account 6305, Elite batch GJ Reversing disbursement write-offs for account 6300, Elite batch GJ Reversing disbursement write-offs for account 6300, Elite batch GJ Reclassifying disbursement payments, Elite batch GJ Reclassifying disbursement payments, Elite batch GT Reclassifying payments as return of capital, Elite batch BN Reversing credit card write-offs, Elite batch GJ Reclassifying foreign payroll, Elite batch VH Applying loan repayments as revenue, Elite batch MDYE1211A 72 June 25, 2009 Ernst & Young LLP Management representations letter 73 June 18, 2010 Emst & Young LLP Management representations letter 74 June 28, 2011 Emst & Young LLP Management representations letter 4

106 Count Ind. 773/2(114 (Ind. 5393/2013) Falsifying Business Records Counts Disclosures People v. Davis, DiCarmine. Sanders, and W arren. Ind. 773/2014 and People v. Warren. (Ind. 5393/2013) Date ot Range (on or around) from Ind. 773/2014 (Ind. 5393/2013) Enterprise Disclosure 75 June 25, 2009 Dewey & LeBoeuf LLP Audited 2008 financial statements 76 June 18, 2010 Dewey & LeBoeuf LLP Audited 2009 financial statements 77 June 28, 2011 Dewey & LeBoeuf LLP Audited 2010 financial statements 78 February 17, 2009 JPMorgan Chase Bank, NA. Year-end 2008 compliance certificate 79 February.19, 2010 JPMorgan Chase Bank, NA. Year-end 2009 compliance certificate 80 February 14, 2011 JPMorgan Chase Bank, NA. Year-end 2010 compliance certificate 81 February 14, 2012 JPMorgan Chase Bank, N A. Year-end 2011 compliance certificate 82 February 17,2009 Citibank, N.A. Year-end 2008 compliance certificate 83 February 19, 2010 Citibank, N A. Year-end 2009 compliance certificate 84 February 14, Citibank, N.A. Year-end 2010 compliance certificate 85 February 14, 2012 Citibank, N.A. Year7end2011 compliance certificate 86 February 17,2009 Barclays Bank PLC Year-end 2008 compliance certificate 87 February 19, 2010 Barclays Bank PLC Year-end 2009 compliance certificate 88 February 17, 2009 Wells Fargo Bank, NA. Year-end 2008 compliance certificate 89 February 19, 2010 Wells Fargo Bank, NA. Year-end 2009 compliance certificate 90 February 14, 2011 Bank of America, NA. Year-end 2010 compliance certificate 91 February 14, 2012 Bank of America, NA. Year-end 2011 compliance certificate 92 February 14,2012 HSBC Bank USA, National Association Year-end 2011 compliance certificate 93 February 14,2011 AllianceBemstein LP Year-end 2010 compliance certificate 94 February 14, 2012 AlIknceBemstein LP Year-end 2011 compliance certificate 95 February 14, Hartford Investment Management Company Year-end 2010 compliance certificate 96 February 14,2012 Hartford Investment Management Company Year-end 2011 compliance certificate 5

107 Count Ind. 773/2014 (Ind. 5393/2013) Falsifying B usiness Records Counts D isclosures People v. Davis. DiCarmine, Sanders, and Warren. Ind. 773/2014 and People y. W arren, (Ind. 5393/2013) Date ot Range (on or around) from Ind. 773/2014 (Ind. 5393/2013) Enterprise Disclosure 97 February 14, 2011 Aegon USA Investment Management, LLC Year-end 2010 compliance certificate 98 February 14,2012 Aegon USA Investment Management, LLC Year-end2011 compliance certificate 99 February 14,2011 Members Capital Advisors, Inc. Year-end 2010 compliance certificate 100 February 14, Members Capital Advisors, Inc. Year-end 2011 compliance certificate 101 February 14, 2011 Aviva Investors North America, Inc. Year-end 2010 compliance certificate 102 February 14, 2012 Aviva Investors North America, Inc. Year-end 2011 compliance certificate 103 February 14, 2012 Pan-American Life Insurance Company Year-end 2011 compliance certificate 104 February 14, 2011 Sentinel Asset Management, Inc. Year-end 2010 compliance certificate 6

108 - General Journal Header Entry ID: [EL. J75S6 Model Entry ID: I Batch ID: (GJ7434B4 Transaction Date: l 2/31/200B 61 Type 3 r Automatic Reversal Currency ^ ir 'iu it V. i 1, ' - 1 Currency Date: 07/10/2008 Repi:ftir>o Currency. j ' " t~ Spd Rate: Company: j Description: [r e c e iv a b l e -c u e n t d is b u r s e m e n t s u n b il l e d - W Show Local Narrative V Show Consolidation Narrative Account.Local Narrative 1 Debit [ Credit I Currency Date OOOOQOO Unbilled Costs j /10/ _ i m OOOOOCH Unbilled Costs /1 0/ Unbilled Costs 308, /05/ , ooooaon Intercompany 30, '12/05 / coaoooa Intercompany /3 1 / ooooo cooaooa Intercompany 113,95EB9 1 2 /0 5 / B OOOOOOO Intercompany /0 5 / ,000 ooooo Intercompany /1 0 / _ OOOOOHJ Intercompany 22CL /1 0 / ooooo Unbilled Costs /31/ coo ooooo Intercompany 30.97B.1Z; 1 2 /0 5 / G0 007 ooooo Costs Written Down 30,979.12; 12/05/ :2S1 r ooo ooooo Unbilled Costs /15/ ooo ooooo Unbilled Costs /31/ 'ooo ooooo Intercompany '0 6 /3 1 / ,007 ooooo Costs Written Down 240!10/15/ ;2S : Cosls Written Down 1.70 ; 10/31/ : '6300 ooooo ^ Costs Written Down /31/ : :G ooooo Costs Written Down 44, /05/ b o o ' ooooo Intercompany 119,956.83,12/05/ : ooooo ooooooo Costs Written Down 55,365.31j l 2 /05 / ;067 ' ooooo Costs Written Down 20,280.40:12/05/ :24'1211 :ooo ooooo, Unbilled Costs 7.60!05/20/ ; ' ooooo Intercompany 157,00247" 12/05/ : 280 :24 ; ooooo! Costs Written Down 7.60 :05/28/ ; ooooo ooooooo Costs Written Down 157,80247; 12/05/ : jooo ooooo i T rarrsactiort i 1 2 /1 7 / ; j m ooooo 1ooooooo Transaction ; 12/17/ '; b00 ooooo ooooooo Unbilled Costs 5.52 :10/06/ ' ;ooo ooooo J Unbilled Costs 39.59j11/d3/ ' i1211 ;ood ooooo!ooooooo Unbilled Costs 47.83:11/10/ ;230, ,000 ooooo ;i ooooooo Unbilled Costs 40.88[11/13/ j 230 > i1211 ;000 ooooo,[ Unbilled Costs 40.37j 11/10/ : i l 211 OOO j ooooo jboooooo Unbilled Costs ^.4 5 ;1 1 /1 9 / '230 ;:04 H 211 io o o. ooooo jooooooo Unbilled Costs 0.21 j 11/20/ i 290 :;04 i l 211 jboo bodoo [ Unbilled Costs 0.75j 11/24/ '290!j :ooo ooooo i ooooooo Unbilled Costs 3.46 :11/25/ ;290 ; :boo i ooooo :: ooooooo Unbilled Costs "39.86; 1 2 /0 1/ ,:04 : 1211 ijooo j ooooo ooooooo Unbilled Costs 35.33:12/05/2008 * ' icxro i ooooo ; < Unbilled Costs a 6 5 ]1 2 /1 7 / :: 04 : 1211 : 1030 liodooo H ' U nb ied Costs..."adoTi 2/1 d/zoos" < 1

109 NYDA-0D00001

110 Account Company llocation iprimary IDepartment Timekeeper Local Local Narrative Consolidation Narrative Empl Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Intercompany Intercompany Intercompany Intercompany Intercompany intercompany Intercompany Intercompany Intercompany Intercompany Intercompany Intercompany Unbilled Costs Unbilled Costs Intercompany Intercompany Costs W ritten Down Costs W ritten Down Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Intercompany Intercompany Costs W ritten Down Costs Written Down Costs W ritten Down Costs Written Down Costs Written Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Intercompany Intercompany Costs Written Down Costs Written Down ^ 0 Costs Written Down Costs Written Down Unbilled Costs Unbilled Costs Intercompany Intercompany Costs Written Down Costs W ritten Down Costs W ritten Down Costs Written Dgwn Transaction 270 Transaction Transaction 270 Transaction Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs a 0 Unbilled Costs Unbilled Costs Unbilled Casts Unbilled Costs Unbilled Costs Unbilled Costs Intercompany intercom pany Intercompany Intercompany Costs W ritten Down Costs W ritten Down Costs Written Down Costs W ritten Down Costs W ritten Down Costs Written Dov/n Costs W ritten Down Costs Written Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Costs Written Down

111 Debit , , , , Credit Debit Hold Credit Hold Additional Desc Currency Date /10/ /10/ , /5/ ,979,12 30, /5/ /31/ ,956,89 119,956,89 12/5/ , , /5/ /10/ /10/ /31/ , /5/ , , /5/ /15/ /31/2008 7, /31/ /15/ /31/2008 8/31/ , , /5/ , /5/ , , /5/ , , , /S/2008 5/28/ /5/ /28/ , , /5/ /17/ /17/ /6/ /3/ /10/ \ \ /13/ /18/ /19/2008 & /20/ /24/ /25/ /1/ /5/ O.SS - 12/17/ /18/ /10/ /10/ /10/ /10/ /13/ /24/ /25/ /1/2008 NYDA

112 Costs Written Down Costs Written Down Costs Written Down Costs W ritten Down Costs Written Down Costs Written Down Costs W ritten Down Costs W ritten Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs W ritten Down Costs Written Down Costs W ritten Down Costs Written Down Costs Written Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery

113 /5/ /5/ /3/ /10/2008 3B /19/ /20/ /24/ /17/ /18/ /18/ /17/ /17/2008 NYDA

114

115 - General Journal H e a d e r EntoilD: E L b..,j75e0 M odrientiyld:. I BalchlDr IgJ7434B4 Transaction Dale: [12/ SlljpBc IlglSgiliaglBliillilstSiiifia TI ra.jtemalicre7ec.io! n, t e a a t e W f f l B ^ f C u ro x s D s ta : 03/03/2008 Reporting Ci,tn<riu.y: j H Spot Rale: [ Company: f~ Description: [r e c e iv a b Le -c u e n t d is b u r s e m e n t s u n b il l e d r Show Local Nacrotive I Show Consolidation Narrative Account Local Narrative I Debit I Credit i Currency Date Unbilled Costs / Unbilled Costs / Intercompany / Intercompany / Costs Written Down / ^2000 ooo Gient Cost Clearing / ooo OOOOOQG OierS Corf Clearing /2008 B ooooooo Client Corf Clearing /1'1/ ooooooo OierA Corf Gearing /17/ ooooo ooooooo Client Corf Gearing / , ooooooo Client Corf Clearing / ooooo ooooooo Unbilled Costs, / ooo ooooooo Unbilled Costs /3 0/ ooooo ooooooo Unbilled Costs / ooooo ooooooo Unbilled Costs /17/2008 1$ ooooo ooooooo U nbilled Costs /3 0/ ooooo ooooooo Unbled Costs /31/ ooooo ooooooo Unbilled Costs / , ooooo ooooooo Unbiled Costs /2003?n ooooo ooooooo Unbilled Costs /10/2009?1?m ooooo ooooooo Unbilled Costs / ; ooooo ooooooo Unbilled Costs 71.60^4 /30/ ooo ooooo ooooooo Unbilled Costs 3O.77'10/21 /20O , ooooo ooooooo Intercompany 14.12} 03/0 3/ DODODOO Intercompany 27,349.56,' 1 2 /0 5/ ;41 $ ooooo : OOOOOOO Costs Written Down eea.53 01/31/ ; ooooo 5ooooooo Costs Written Oown /03/ { ooooo :ooooooo Costs Written Down 45.00: 03/10/ i ooooo [OOOOOOO Costs Written Down 20.57: 04/10/ : 41 [ ooooooo Costs Written Down 25.00: 04/23/ $ ooooo ooooooo Costs Written Down /2000 3? 201! ;G300 :o3o ooooo :OOOOOOO Costs Written Down ' / 21/ ; ,6300 : ;030 ooooo : Costs Written Down /05/200B < l NY DA

116

117 EnliylD: [ELB /5 7 0 Mode! Entry ID: [ Batch ID: GJ7434B4 Transaction Date: l2 /3V 20oi S l Type: ^ I T Automatic R e p e a l Cu iie tiw. * I C un«n (^D «te 12/11/ZD 08 RepOflirw Cunenrji.': j»- Spot Rate: f Company: tesa'ptiort R ECEIVABLE-CUENT DISBURSEMENTS UNBILLED / Show Local Narrative P * Show Consolidation Narrative Account! Local.NerettYe 1. Debit 1 Dedit! Currency Dal Client Cost Clearing /11/ Client Cosl Dearing /11/ ooooo Soft Cost Recovery /28/1998 T GOOOQ Soft Cost Recovery /28/ Soft Cost Recovery /3 1/ Soft Cost Recovery 29,95 12' Soft Cost Recovery /30/1399 B Soft Cost Recovery /30/1999 " f " Soft Cost Recovery /31/ Soft Cost Recovery /31 / ' T ran section h 2/ T ransaction /21/ " Transaction '12714/ T ransaction / ' Transaction /16/ ' Transaction B '12/1 6/ o o o o d Transaction /22/ , ; T ransaction ;12/22/ ;0 0 0 : Transaction270 52, ;12/0 5/ ,1211 ; o o o J T ransaction '12/05/2038 ~ z n " : -o o d : o o b o o o o o d d d o ' Unbilled Costs / Unbilled Costs 40.00;12/2 87I : : ! Unbiled Costs /31/ ;ooo '00000 OOOOODO j Unbiled Costs 29.95l12/ : 1211 : 000 [ i Unbilled Costs /30/ : i2i i :;00b OOOOODO* 'Unbiled Costs /30/ : / ;Unbiled Costs ] /31/ "000 : ' Unbilled Costs 5o7od;oi/3V2oo ' "000 '00000 ' Unbilled Costs ; :i2 /11/200B ,00000 : : Unbilled Costs /11 / tot 01 l 211 :-000 : ' Unbilled Costs 0.27 ' 1 2 / Z \ ;: 000 j i Unbiled Costs 8.78 '12/28/ :: Unbiled Costs 6.57 ;12/ i ; '. Unbiled Costs /14/ ;101 - i n ',1211,:000 > ' :Unbiled Costs... '1 2 /1 6 /1 S '01 ; i2i i ; i 000(1)00 Unbiled Costs 0.01 '12/22/ ::oob V o o d o o : o o o d d d o ' 'Unbilled Costs '...112/30/ I! ' i 'Unbilled Costs _ : : 01/31/ ' 01 j 121 i 000 ; t Unbiled Costs /07/ ;o i i i OOOOODO! Unbiled Costs 6JT34110/08/2038 ' ,>000 ii ' I Unbiled Costs 3264jld /13/2003 4

118 N Y D A

119 Account Company Location Primary Departm ent Timekeeper D o o t) Lora! Narrative Consolidation Narrative 0 Client Cost Clearing Client Cost Clearing 0 Client Cost Clearing Client Cost Clearing 0 Soft Cost Recovery Soft Cost Recovery 0 Soft Cost Recovery Soft Cost Reoovery 0 Soft Cost Recovery Soft Cost Recovery 0 Soft Cost Recovery Soft Cost Recovery 0 Soft Cost Recovery Soft Cost Recovery 0 Soft Cost Recovery Soft Cost Recovery 0 Soft Cost Recovery Soft Cost Recovery 0 Soft Cost Recovery Soft Cost Recovery 0 Transaction 270 Transaction Transaction 270 Transaction Transaction 270 Transaction Transaction 270 Transaction Transaction 270 Transaction Transaction 270 Transaction Transaction 270 Transaction Transaction 270 Transaction Transaction 270 Transaction Transaction 270 Transaction Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs ' 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Casts 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs 0 Unbilled Costs Unbilled Costs

120 Employee Debit Credit Debit Hold Credit Hold Additional Desc Currency Date /11/ /11/ /28/ /28/ /31/ /31/ S.3 12/30/ /30/ SO 1/31/ /31/ /21/ /21/ /14/ /14/ /16/ /16/ /22/ /22/ , , /5/ , , /5/ /28/ /28/ /31/ /31/ /30/ /30/ /31/ /31/ /11/ /11/ /21/ , 12/28/ X 12/31/ /14/ /16/ /22/ /30/ /31/ /7/ /8/ /13/ /22/ , ,381, /5/ /35/ /16/ /18/ /19/ /22/2008 9Z /22/ /23/2008 NYDA

121 Unbilled Costs Unbilled Costs Intercompany Intercompany Intercompany Intercompany Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs W ritten Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs W ritten Down Costs Written Down Costs Written Down S 0 0 Costs Written Down Costs Written Down Costs W ritten Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Costs Written Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs W ritten Down Costs W ritten Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cbst Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery G5 0 0 Costs W ritten Down Costs W ritten Down Costs W ritten Down Costs W ritten Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Dawn Costs W ritten Down Unbilled Costs Unbilled Costs

122 , S /29/ , , /5/ , , /5/ , , /5/ /7/ /8/ /13/ /22/ , , /5/ /22/ /29/ , , /5/ , , /5/ /21/ /28/ /31/ /14/ /16/ /22/ /30/ /31/ , , /5/ /15/ /16/ /18/ /19/ /22/ /23/ , , /5/ , , /5/ , /5/ , , /5/ , \ 395, /5/ n 12/21/ /21/ /14/ /14/ /16/ /16/ /22/ /22/ /5/ , , /5/ , , /5/ , , /5/ /5/ , , /5/ /5/ /5/ , /5/ /31/2008 NYDA

123 Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs W ritten Down Costs Written Down Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing G Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs ^ 0 Unbilled Costs Unbilfed Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs ,,, 0 ^ ;, 0 0 Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs _ Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Intercompany Intercompany Intercompany Intercompany o 0 Intercompany Intercompany Intercompany Intercompany Intercompany Intercompany Intercompany Intercompany Costs W ritten Down Costs Written Down Costs Written Down Costs Written Down Costs W ritten Down Costs Written Down Costs Written Down Costs Written Down Costs W ritten Down Costs Written Down ' Costs Written Down Costs Written Down ' Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs W ritten Down Costs W ritten Down Costs W ritten Down

124 295, , /5/ /31/ , , /5/ /24/ /30/2008 2, , /5/2008 2, , /5/ /10/ /10/ /11/ /11/ /17/ /17/200S /30/ /30/2008 1, , /31/ , /31/ /24/ /30/2008 2, , /5/2008 2, , /5/ /10/ /10/ /11/ /11/ /17/ /17/ /30/ /30/2008 1, , /31/2008 1, , /31/ /22/ \ /29/ V /30/ ' /31/2008 ^3, , /5/ /4/ /17/ /19/ /8/ /15/ , , /5/ /4/ , , /5/ /8/ /15/ /17/ /19/ /22/ /29/ /30/2008 NYDA

125 Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Unbilled Costs Unbilled Costs Intercompany Intercompany Client Cost Gearing Client Cost Clearing Client Cost Gearing Client Cost Clearing Client Cost Gearing Client Cost Clearing Client Cost Gearing Client Cost Gearing Client Cost Gearing Client Cost Clearing Client Cost Gearing Client Cost Clearing Client Cost Gearing Client Cost Gearing Client Cost Gearing Client Cost Clearing Client Cost Gearing Client Cost Clearing Client Cost Gearing Client Cost Clearing Client Cost Gearing Client Cost Clearing Client Cost Gearing Client Cost Gearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Gearing Transaction 270 Transaction Transaction 270 Transaction Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Ccfsts Unbilled Costs Unbilled Costs Unbilled Costs _ Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs o 0 Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Intercompany Intercompany Intercompany Intercompany Intercompany Intercompany Intercompany Intercompany Costs Written Down Costs Written Down Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing

126 /31/ , , /5/200S /29/ /31/ /31/200S 2, , /3/2008 2, , /3/ /4/ /4/ /8/ /8/2008 6, , /12/2008 6, , /12/ /15/ /15/ /17/ /17/ /19/ /19/ /30/ /30/ /29/ /29/2008 2, , /3/2008 2, , /3/2O0S /4/ /4/ /8/ /8/2008 6, , /12/2008 6, ,942,65 12/12/ /15/ \ /15/ ^ 12/17/ ' /17/ S /19/ /19/ /30/ /30/ /4/ /17/ /19/ , /5/ /4/ /17/ /19/ , , /5/ /29/ /29/ /8/ /8/2008 NYDA

127 Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Gearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Clearing Client Cost Gearing Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs intercompany Intercompany Intercompany Intercompany Transaction 270 Transaction Transaction 270 Transaction Transaction 270 Transaction Transaction 270 Transaction Unbilled Costs Unbilled Costs o' 0 Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Costs Written Down Costs Written Down Costs W ritten Down Costs Written Down Costs Written Down Costs W ritten Down Costs Written Down Costs W ritten Down Costs Written Down Costs Written Down Costs Written Down Costs W ritten Down_ Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Soft Cost Recovery Client Cost Clearing Client Cost Clearing Client Cost Gearing Client Cost Clearing Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Client Cost Clearing Client Cost Clearing Client Cost Gearing Client Cost Clearing Client Cost Gearing Client Cost Gearing Client Cost Clearing Client Cost Clearing Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs

128 /12/ /12/ /15/ /15/ /19/ /19/ /8/ /8/ /12/ /12/ /15/ /15/ /19/ /19/ /8/ /15/ L32 12/8/ /15/ /22/ /22/2008 3S5 3,85 12/30/ /30/ /4/ /10/ /18/ /25/ /23/ /10/ /18/ /25/ /23/ /4/ /18/ x 12/22/ ' /22/ /30/ /30/ /31/ /31/ /31/ /31/ /14/ /14/ /10/ /10/ /14/ /14/ /10/ /10/ /15/ /15/2007 NYDA I

129 Intercompany Intercompany Intercompany Intercompany Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Unbilled Costs Intercompany Intercompany Intercompany Intercompany Intercompany Intercompany Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down Costs Written Down

130 X , /15/ /15/ /1/ /1/ /9/ /30/ /5/2007 1/23/2008 5/31/ /15/ /15/ /15/ /15/ /1/ /1/ /9/ /30/ /5/2007 3/23/2008 5/31/2008 N Y D A

131 -B atch Information Batch Number [ Batch Operator DZCASON Print R ag PRINTED TypK AUD1T Open Date: 01 /08/200 9 Period; 1208 Finalized Date; 01 /09/20Q9 Matter I Description I Amount I Client Name Currency Valtonv. Repsol International Chamber 01 Commerce GBP EL Citigroup Global Markets Inc. USD WebRnanda! HouIhanLokey USD Caremark ao O U B S A G USD Social Issues 0.00 PGE Polska Gtupa Energetyezna S.A EUR S , General Corporate B Metropolitan Life Insurance CO. USD Russian Matters - General 0.00 China National 03 & Gas Exploration & Dev USD LurcservGruppe 162,85273 Liirssen Maritime Beteifgungs GmbH ic o. EUR Structured Finance Workouts and Restructurings 178, Ambac Assurance Corporation USD NVProiact Cable 59, Iberdrola USA Management Corporation USD V /eik Notice Carter, Jay W. USD CfosingWork ' Pereira, John As Trustee USD 'Henry el a!, v. St Croix Altmina et al. (Claim No Alcoa (Special) USD UBS 114,293.65' Finish Line USD LSI Subprime 110, Fidelity National Information Services USD D001 -Derivative Matters Brocade Communications Systems. Inc. USD C M litigation 83, Arab Bank, pic USD Investigation 82, Epic Advisors, LLC USD Northern Trust Compary 80, BP Corporation North America, inc. USD Claims Against ZF Meritor 76,92295 Eaton Corporation USD CX Rate Ring 74,157.38! Allstate Corporation USD Retainer Volta RiverAulhority USD :A!G California Litigation 66, irnanciere Phault USD C!PV 109,88294 :Coiler Capita! USD :Palamon-S?gia 56, Palamon Capital Partners EUR Bialetti IPO Unrcredito Bartca MobHare S.pA EUR Litigation Regarding Distribution Rights of Software 40, Artificial Solutions GmbH GBP State of Connecticut Dispute 55,39250 The Energy Network :USD Castlewood Dispute 53,707.54: National Indemnity Co. USD Renovation Project 0.00; Duke Farms Foundation :USD 'Project Monument 52, i Munich Reinsurance America, Inc. USD 'Internationa! Fund II 52,326.1 B General Electric Asset ManagenY!u s d Project Shield 50, Ambac Assurance Corporation ''USD ol. :V.-\ S Sodexho 50, Feesers Food Distribution 'USD ;,^ ; - \ ;R '! ; :; DePuy 49,59233! Medtronic Sofamor Danek, Inc. [USD» Timolhy & Thomas LLC 48,567.77:Viral Genetics, Inc. USD WexTrust 47,909.29: Timothy J. Coleman, as Receiver ;USD G8279G CM0S2OO7-C34 47,429.3B:Wachovra Capita! Markets LLC USD JOST RE LOAN & REORGANISATION 'JostrBruno IEUR I Bain Capilal/TeamSystem releveroge 26,135.35! Bah Capital Ltd I'e u r 'Investment AG 37,175.75; Deutsche Asset Mgmt Investmentgesellsd, EUR.7;77S/7!7.:n77:;r::: ^Project Thebes 23,939.GB;HSBC jusd VU-.-j'.: :;'J.V'. '/L!;-'21 ;V ; - m. W "~ OS ;Ametsham T ax 23, General Electric Company =USD 'Insulin 23,5CSl1 1 'Novartis Corporation USD j Data Safety Vault 32,415.47,Safety Intelligence Systems.USD CG I EL 43,610.39;Menill Lynch. Pierce, Fenner & Smith Inc. tusd X31 Guilherme 43,397.93;Baneo Bradescc S A jusd defense Profiles 36,046.27; Citigroup Global Markets Inc. [USD ILS Tax Advice 34, Capmark Fmancial Group Inc.!u s d i;1' J;;;v v '-'-7' 7-: L;;!::.'L 7: /.'.'V:1' '"V-j pf SRAT Team 24,0IB.84iAngola LNG Proiect USD ' V;":'-L-1 L' o: v r1*.j m nna7cwl nnm f!fi ' Wnxj»rnh»r On RTI 1("I1 Ma)Jnnat ter- men N Y D A <1- \ > r

132 M a tte r Description X V aiton v. Repsol EL W ebf inancial C arem ark Social Issues G eneral C o rp o ra te Russian M a tte rs -G e n e ra l L urssen-g ruppe S tru c tu re d Finance W o rk o u ts and R estructurings S NY P ro ject Cable W ells N otice Closing W ork H enry e t al. v. St. Croix A lum ina e t al. (Claim No UBS LSI S u b p rim e D erivative M a tte rs Civil Litigation Investigation N o rth ern T ru st C om pany Claims A gainst ZF M erito r CA. R ate Filing R etain er v AIG California Litigation C1P V P alam on - Sigla Bialetti IPO Litigation R egarding D istribution Rights o f S o ftw are S ta te o f C o n n ecticu t D ispute C astlew ood D ispute R enovation P roject P ro ject M o n u m e n t In tern atio n al Fund II P ro ject Shield S odexho DePuy T im othy & T hom as LLC

133 A m ount Client Nam e Currency ( ) In tern a tio n a l C h am b er Of C o m m erce GBP ( ) Citigroup Global M arkets Inc. USD Houlihan Lokey USD - UBS AG USD - PGE Polska G rupa Energetyczna S.A EUR ( ) M etropolitan Life Insurance CO. USD - China National Oil & Gas Exploration & D evelopm ent USD 1 6 2, Liirssen M aritim e B eteiligungs GmbH & Co. EUR 1 7 8, A m bac A ssurance C o rp o ratio n USD 5 9, Ib erd ro la USA M a n a g em en t C o rp o ratio n USD 1 7 5, C arter, Jay W. USD 1 6 2, P ereira, John As T ru stee USD 1 5 1, Alcoa (S pecial) USD 1 1 4, Finish Line USD 1 1 0, Fidelity N ational Inform ation Services USD 1 0 2, B rocade C o m m u n icatio n s S y stem s, Inc. USD 8 3, A rab Bank, pic USD 8 2, Epic A dvisors, LLC USD 8 0, BP C o rp o ratio n N orth A m erica, Inc. USD 7 6, Eaton C orporation USD 7 4, A llstate C orporation USD 7 2, V olta River A uthority USD 6 6, Financiere Pinault USD 1 0 9, Coller Capita! v USD 5 6, P alam on C apital P artn ers EUR 4 3, U nicredito B anca M obilares.p.a. EUR 4 0, Artificial S olutions GmbH GBP 5 5, The Energy N etw ork USD 5 3, N ational In d em n ity Co. USD - Duke Farm s Foundation USD 5 2, M unich R einsurance A m erica, Inc. USD 5 2, G eneral Electric A sset M anagem USD 5 0, A m bac A ssurance C orporation USD 5 0, Feesers Food Distribution USD 4 9, M e d tro n ic S o fam o r D anek, Inc. USD 4 8, Viral G enetics, Inc. USD NYDA

134 W ext rust CMBS C JOST RE LOAN & REORGANISATION Bain C apital/t eam S ystem releverag e In v e stm e n t AG P roject T h eb es A m ersh am Tax Insulin D ata S afety V ault EL G uilherm e D efense Profiles ILS Tax Advice SRATTeam P ro ject N o v em b er Class A ctions Civil Litigation ; Foreign Law Advice - G eneral C ongoleum - File No. D J P ro ject Im pala-s ecurities Claim s by H.K. S ystem s re Iow a B eef Packing l-prets C o rp o ra te R o ch ester T ransm ission P ro ject A rbitration XXX RHODA LORAND GUARDIANSHIP N ew York R egulatory Advice G eneral A ggrey Texas P roceedings R e p resen tatio n in a m u rd e r case D ance M acau T uapse F asten etix TT R esource S trategy P ro ject W aterfall G o v ern an ce Petroval D ispute Pixar S tock O ption m a tte rs

135 4 7, T im othy J. C olem an, as R eceiver USD 4 7, W achovia C apital M ark ets LLC USD 3 9, lo s t, Bruno EUR 2 6, Bain C apital Ltd EUR 3 7, D eu tsche A sset M gm t. In v estm entg esellsch EUR 2 3, HSBC USD 2 3, G en eral Electric C om pany USD 2 3, N ovartis C orporation USD 3 2, S afety Intelligence S y stem s USD 4 3, M errill Lynch, Pierce, F enner & Sm ith Inc. USD 4 3, Banco B radesco S.A. USD 3 6, Citigroup G lobal M ark ets Inc. USD 3 4, C apm ark Financial G roup Inc. USD 2 4, A ngola LNG P roject USD 2 3, Fidelity N ational Financial, Inc. USD 2 3, C hicago Bridge & Iron C o m pany N.V. (M g m t) USD 2 3, Fran saban k USD 3 3, JSC VTB Bank USD 3 2, CNA G roup USD 3 1, Qtel International LLC USD 3 1, Eaton C orporation USD 2 9, K eefe B ru y ette & W o o d s USD 2 9, R o chester G as and Electric Corp. USD 2 8, D ouglas, Daniel USD 2 8, E ntergy N uclear, Inc. x USD 2 7, R eceiver o f ELNY USD 2 6, Investcom USD 4 5, Frederick S.A jlan USD 4 2, NBC U niversal M edia, LLC USD 3 9, C artesian C apital P artn ers USD 3 9, San S o re n to In v e stm en ts Ltd. USD 3 8, M e d tro n ic S o fam o r D anek, Inc. USD 3 8, A m erican Express USD 3 6, Liberty M utual In su ran ce Co. USD 3 5, CNET N etw orks, Inc. USD 3 5, PKN O rlen S.A. USD 3 4, M a th er, Ann USD N YDA

136 P roject Sequel Parrish Tax O pinion Cross In re NBIS S h a re h o ld e r Litigation T2 Financing (5 0 : 5 0 ) RFI a g ain st T ecn o ferr

137 2 5, Fidelity N ational Inform ation Services USD 2 5, NFL Players A ssociation, Inc. USD 2 4, S afew ay Inc. USD 2 4, M e d tro n ic S o fam o r D anek, Inc. USD 3 0, M e e h an W h itcom b, J. G ross, Shinn, Bolson, Lam bin, C. G ross USD 2 9, V olta River A uthority GBP 2 5, R ete Ferroviaria Italiana (RFI) EUR NYDA

138

139 -Transaction Types to Inc P General Journal Detail P Voucher Dstal P Check Detail P ' Display Full Transadion Description v e blank to include all) Journal Query j Voucher Queiy j Check Query j Account Query Advanced... Refresh P Compute Beginning Estance Start Date: f12/31/2008 End Dale: 112/31/2008 Ac-counl Munbrr j I Dasaiption: (((glseg4 = 1211') OB (gl.seg4-20x1o Rfglseg4 «'6300'}) OR Image View Image Currency: JUS Dolars Select AH Clear All 1Tioe i Balch ID TransactionID 1 Date 8j s t-1 <3; 1 CurrDale i Debit 1 ' Oedfc 1 Balance! Description 1 Erro/Proi 1 Bank ID 1 Account 1 1 r GJ GJ EL8SAU /31/2008 feur :07/10/ : 3J219.9S8.08 Unbilled Costs 101 ' : 000 : x 00 2 r GJ GJ ELBSAUX75S6! 12/31/2008 j EUR ; 07/10/ ! Unbilled Costs iol! 1211 ;0C6 [00000 ;000XX 3 r GJ GJ ELBSAU007556!l2/31/20XjEUR! 12/05/2008: 391,353.12: ' Unbilled Costs! ;01: 1211 [000 :;00000 ;xooox! 4 r GJ GJ ELBSAU007566! 12/31/2008! EUR :12/05/2008: ! 2.828, Intercompany ; 1571 ioco j'oxoo xooox! 5 r GJ GJ ELBSAU0O756S '12/31/200B.EUR 108/31/2008: 10.50: ; 2.867,083.71: Irtercompany i '.1576 ;; ;ooxxo t 6 r GJ GJ ELBSAU0075S6 '12/31/2000 ieur 112/05/2000: , ; Irtercompany I ;01 M jlooooo : 000X00 t 7 r GJ GJ ELBSAUX75BS '12/31/20G9IEUR j 12/05/ ! Intercompany ::000 1, '000X r GJ GJ ELBSAU00755S 12/37/20001 EUR i 07/10/2008' Irtercompany ';00i) j;00000 ixooooo! 3 r GJ GJ ELBSAU00756S.12/31/2008; EUR j 07/10/200B ; ! Irtercompany ;:01! t 000 : ;oooxx! 10 r GJ GJ ELBSAU00756S 12/31/2008 ieur 100/31 /200B: 10.50; 3,213,957.58' Unbilled Costs J.30M 211 ;:ooo i* ooooo '00X r GJ GJ ELBSAUX75S6 12/31/2008 ;EUR ; 12/05/ GB.75 i 3,213,958,08 Irtercompany t idoo xooooo 12 r GJ GJ ELBSAUX75S6 12/31/200Bi EUR,12/05/2008' l ; Costs Written Down 202!215 ::15:,;B300.;007 i:000x 'X 0X X 13 r GJ GJ ELBSAU /31/2OQ0-EUR i 10/15/ ^ 'Unbilled Costs ,61 * j '4181 OX 1 14 r GJ GJ ELBSAU007566,12/31/2000! EUR i10/31/ , ' Unbilled Costs ; :01 '.'1211 : X 4181 OX 15 r GJ GJ ELBSAU /31 /2008IEUR 08/31/ : 3J ilntercompany ! 61 '1570.;000 '0X ! 16 r GJ GJ ELBSAUX756S ; 12/31/2008; EUR : 10/15/2008^ 3.26' B4.01 Costs Written Down 203!261.'Ol 6X0 ;.007 j; i 17 r GJ G J7A3A84 ELBSAU /31/2008; EUR '10/31/ ^19.9B0.75 Costs Written Down ; :;X7 00X0! ! 18 r GJ GJ ELBSAU007566! 12/31/20081 EUR ;08/31 / ; Costs Written D own XX r GJ GJ ELBSAU : 12/3i/20081 EUR ; 12/05/2008! 56,168.31; : Costs Written Down i ! 6X :0X X : 000X00, 20 r GJ GJ ELBSAU0075SS. 12/31/20081EUR.12/05/2008; ; Intercompany ;i23: 1570 : 0 X 1000X '000X00 ' 21 r GJ GJ ELBSAU0075S6 : 12/31/2008! EUR : 12/05/2008': 70.1f , ; Costs Written Down ; i23i 6300 ' X0 22 r GJ :GJ EL8SAUX75S6.12/31/20081EUR r 12/05/ ,250.83; Costs Written Down ;1231 $ :00000 (OOOOOX 23 r GJ GJ ELBSAU i 12/31/2008! EUR '05/28/2008' 11.98: ; Unbilled Costs X :2 4 'i2 l i ::obo j!ooooo ;XX r GJ GJ ELBSAU '.12/31/20081EUR *12/05/ J : Intercompany 1208!2X j24: 1570,.X 0 10X00 000x r GJ GJ ELBSAU /31/2008 EUR '05/28/2008 ^ 11.98: 3, ; Costs Written Down ! : 050 ioxoo '000X00 26 r GJ GJ ELBSAUX /31/2008 EUR 12/05/2X8-200,028.48! 3, j Costs Wrilten Down ij2 4 '!6300!!055 ;j000x.xoxoo ] 27 r GJ GJ ELBSAU /31/2008 EUR : 12/17/ : ; T ransadion 270 \ 1209! :1211 XO ; 'x o o x o! 29 r GJ GJ ELBSAU0075S6 12/31/2008 EUR 112/17/2008: 1.15! ! T ransaction 270 (209,290, 04:;l2li X00 foooxx 29 r GJ GJ ELBSAU0075S6 (12/31/2008 EUR : 10/06/2008: 7.68: j Unbilled Costs ^ idoo iooxo :000XX 30 r GJ GJ ELBSAU0075S6 12/31/2008 EUR 111/03/ ! ; Unbilled Costs ! ,:OO0!OOOOO' 0000X r GJ GJ ELBSAU0075SS ;12/31/2008 EUR 11/10/2008; ,027.44! Unbilled Costs, :04;i12il X0 ooooox i 32 r GJ GJ ELBSAU /31/2008 EUR '11/13^ ,088.93! Unbilled Costs _ ;290 : 04';1211 jiooo!00000 :000X X 1.33 r GJ GJ7434S4 ELBSAUX75S6 :12/31/2008 EUR 111/18/ ' 3220, ' Unbilled Costs ;:o x 6 :ooooo!000xx 1 34 r GJ GJ ELBSAUX75S6 112/31/2008 EUR 11/19/2008; ,191.70; Unbiled Costs 209,'290 ;:04::12li ]000 :[OOOOO : 000X r GJ GJ ELBSAU0075S6.12/31/2008IEUR ;11/20/2008: 10.37! : Unbilled Costs i:04,1211 jfooo > X00! 36 r GJ GJ ELBSAUX /31/2008! EUR :11/24/2008: ,220,250.58; Unbiled Costs ; !04 :12ii ilddd -ooooo :o ooxx 37 r GJ GJ ELBSAUX /31/2008 EUR ;il/25/ : , Unbilled Costs ;04 '; ; '000X00 38 r GJ GJ ELBSAUX75S6 i12/31/2008 EUR '12/01/ ! ] Unbilled Costs X ;!04'i12t1 [ looox '000X00 39 r GJ GJ ELBSAUX756S 112/31/2008 EUR 112/05/2008! 44.86: 3220,317.35! Unbilied Costs i 209,290 : 04!ii2ii ;:000 lo ox o 000X00 4f1 r GJ GJ ELBSAU i 12/31/20081 EUR '12/17/2X8: 1.15: 3220,36221: Unbilled Costs :;04i;l211 ;:o6o.!ooooo 'XOXOO 41 r GJ GJ ELBSAU :12/31/2008 EUR 12/18/2008' , Unbilled Costs,209 ;2S X0 JOXOO 1X r GJ GJ ELBSAU '12/31/2008 EUR :07/10/ ; 3220,375,71; Irtercompany :04: 1570 ; X00 ioxxoo I 43 r GJ GJ ELBSAU /31/2008 EUR ; 07/10/2008: , irtercompany ;209! :;OGO,!0X X00 44 r GJ GJ ELBSAUX7566 ; 12/31/2008) EUR ; 07/10/2008! ! 3220, Costs Written Down ; ;o o o x x -V N Y D A

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