Case 0:13-cr-60068-JIC Document 77 Entered on FLSD Docket 11/06/2013 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 13-60068-CR-COHN UNITED STATES OF AMERICA V. DAVID MCLEAN, Defendant DEFENDANT'S REPLY TO THE GOVERNMENT'S RESPONSE IN OPPOSITION T DEFENDANT'S MOTION FOR NEW TMAL AND JUDGMENT NOTWITHSTAN THE VERDICT AND INCORPORATED MEMORANDUM OF LAW COMES NOW the Defendant, David McLean, by and through his undersigned attorneys, and files this, his Reply to the Government's Response in Opposition to Defendant's Motion for New Trial and Judgment Notwithstanding the Verdict and Incorporated Memorandum of Law, and shows as follows: In its response, the Government continues to misstate the evidence it chose to present in the trial as it relates to federal funding involved in this series of transactions during 2011, 2012 and 2013. As the Government candidly admits on page 2 of its Response Memorandum, the Court, the Government and the Accused all agreed on the charge to the jury, setting out the elements the Government needed to prove in order to obtain a valid conviction. This Court stated: "...with respect to Counts Two and Three, the M^argate Community Redevelopment Agency received benefits in excess of $10,000 under a Federal program involving some form of Federal assistance...". (Emphasis added.) Thus, the jury needed to be able to "find" from the evidence that the MCRA received federal benefits in excess of $10,000 in 2012 as to Count II and in 2013 as to Count III. The
Case 0:13-cr-60068-JIC Document 77 Entered on FLSD Docket 11/06/2013 Page 2 of 5 documentary evidence and trial testimony undeniably proves there were no federal funds in 2012. The documentary evidence and trial testimony undeniably proves there were no federal funds in 2013, either. The Defendant does not dispute that Gall Gargano, the City's Director of Finance, testified that the City ofmargate received in excess of $10,000 in 2012 and 2013. However, Ms. Gargano never testified that any of those federal funds were given - directly or indirectly - to the MCRA. That the City ofmargate received federal funds, in light of the jury instruction to which the Government agreed, makes no difference here. The evidence established that the MCRA, although an entity within the City of Margate, was independent of the City and was separately funded. Ms. Gargano, on behalf of the City of IVIargate, scrupulously and specifically accounted for funds allocated to the MCRA. NONE of those funds were ever proven to be federal funds. The City's contribution clearly came from local property taxes levied on land and real property within the MCRA zone. Those local property taxes are NOT federal funds. Although Ms. Gargano also offered that Broward County and the North Broward Hospital District contributed to the MCRA, she never testified that she had any firsthand knowledge of the source of those contributed funds. The Government bears the burden of PROOF at trial, not merely innuendo, supposition, hearsay and conjecture. Additionally, contrary to the Government's arguments, Dennis Holste never testified that his agency received over $10,000 in federal funds. His relevant testimony was cited in the Defendant's Renewed Motion for Judgment of Acquittal and need not be repeated here. Critically, Ms. Holste was never asked by the Government to testify about the year 2013. Count Ill involves the year 2013. There is absolutely no testimony from Dennis Holste related to the year 2013. In a light most favorable to the Government, the bus benches were paid for by the federal 2
Case 0:13-cr-60068-JIC Document 77 Entered on FLSD Docket 11/06/2013 Page 3 of 5 government and then given to Broward County. Broward County agreed to place its bus shelters in the City ofmargate only if the MCRA would pay to maintain them. That happened in 2012, NOT in 2013! There is no testimony that Broward County gave the shelters to Margate and that Margate then gave them to the MCRA. Viewing this most favorably to the Government, it can only claim "credit" one time. That did not happen in 2013. The conviction as to Count HI must be set aside and a judgment of acquittal entered. As to Count II, as hereinabove argued, the Government attempts to gloss over Mr. Holste's testimony in its response on page 3. Mr. Holste NEVER testified that his agency received over $10,000 in federal benefits. A plain reading of the excerpt quoted by the Government in its response clearly shows that Mr. Holste never answered the question asked! Although Mr. Holste testified that Broward County and the North Broward Hospital District received "substantial" federal dollars, he never specified how much. He never acknowledged the amount those agencies received exceeded $10,000. He never testified that any federal funds came to his agency (the MCRA) from these two entities. Mr. Holste does not work for either of those agencies and his hearsay would have been inconclusive, even if he had offered it. He only specifically testified that there was a "federal program for a variety of programs they work on related to the airport and the port". Neither the airport nor the port are in the City of Margate. In fact, the Government's evidence related to the required $10,000.00 federal "stake in the action" is wholly lacking. We know from the testimony and the documentary evidence that the City of Margate scrupulously accounts for all of its dollars, including federal funds. We know that the City of Margate scmpulously accounts for its expenditures, as well. So did the MCRA. Due to the lack of evidence presented by the Government, we are forced to ask: "Does the Broward County Finance Director do the same? Does the North Broward Hospital District Finance Director do 3
Case 0:13-cr-60068-JIC Document 77 Entered on FLSD Docket 11/06/2013 Page 4 of 5 the same? Did either of these agencies use strictly local funds in their contributions to the MCRA?" Because the Government elected to present NO PROOF on these issues, we do not know the answers to these questions. The Government has the burden to PROVE that federal dollars came to the MCRA and not local dollars, county dollars or hospital district dollars. Based on the evidence presented, we have no idea of the extent of any federal funding connection. Mr. Holste said: "they got federal dollars for that", referring to the bus shelters. "They" is certainly not the MCRA that Mr. Holste directed. The only thing his testimony established was that the MCRA agreed to maintain the shelters. In other words, the MCRA did not "receive" the bus shelters, some unknown "they" did. The MCRA agreed to pay for the maintenance on the shelters only because "they" said so. "THEY" own the bus shelters. The MCRA only got the maintenance bills - a COST, not a receipt of federal funds. Further, as the government points out, the bus shelter events occurred in 2012. Nothing happened in 2013. Under our system of justice, it is the Government which has the burden of proof. Proof is not "I suppose". Proof is not "I think". Proof is actual evidence that federal dollars were, in fact, given to the MCRA. That is the instruction the Government and the Court agreed upon with the Defendant. No one testified about any federal funds received - directly or indirectly - by the MCRA in the year 2013. The conviction on Count III must be vacated. With regard to Count II, whether the vague and inconclusive testimony is considered or not, the documentary evidence irrefutably establishes that there were zero federal dollars received by the MCRA in 2012. Actually, as cited in Defendant's Renewed Motion for Judgment of Acquittal, that testimony actually substantiates the total dearth of any federal funds. The conviction for Count II must be vacated, as well. For the foregoing reasons, the convictions on Count II and III must be vacated and a judgment of acquittal entered. 4
Case 0:13-cr-60068-JIC Document 77 Entered on FLSD Docket 11/06/2013 Page 5 of 5 Respectfully submitted this 6th day of November, 2013. s/c. Edward McGee, Jr. C. Edward McGee, Jr., Esq. Florida Bar No. 174885 E-mail: emcgee@mcgeehuskey.com McGEE & HUSKEY, PA. 2850 North Andrews Avenue Fort Lauderdale, Florida 3331 1 Telephone: (954) 563-8200 Facsimile: (954) 566-7754 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served via CM/EFC on November 6, 2013 on all counsel or parties on the Service List below. s/ C. Edward McGee, Jr. C. Edward McGee, Jr., Esq. USA v. McLEAN UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 0:13-CR-60068-JIC-1 Neil Karadbil, Esq. Assistant United States Attorney Florida Bar No. 2193 81 E-mail: neil.karadbil@usdoj.gov 500 East Broward Blvd; Room 700 Fort Lauderdale, FL 33394 Tel: (954) 660-5794 Fax: (954) 356-7336 SERVICE LIST 5