Louis Manzo Motion for Attorneys Fees, March 14, 2012

8/2/2019 Louis Manzo Motion for Attorneys Fees, March 14, 2012

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA, ))

Plaintiff, )

)v. ) Criminal No. 09-759 (JLL)

)LOUIS M. MANZO, )

)Defendant. )

PETITION

FOR AN ORDER AND FINDINGS THAT DEFENDANT MANZO IS

ENTITLED TO ATTORNEYS FEES PAYABLE BY THE UNITED

STATES DEPARTMENT OF JUSTICE AND/OR THE FEDERAL

BUREAU OF INVESTIGATION WITH SUGGESTIONS IN

SUPPORT

Louis M. Manzo

Pro Se


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JURISDICTION

Defendant Manzo meets the standing requirements of the Equal Access to

Justice Act and the requirements of the Hyde Amendment as applied in the

criminal context. See Equal Access to Justice Act of 1948, 28 U.S.C. 2412

and 18 U.S.C. 3006A. Public Law 105-119.7 Section 617 which amended 18

U.S.C. 3006A (Adequate Representation of Defendants). These laws allow

a court to award a prevailing defendant a reasonable attorneys fee and

other litigation expenses when the federal prosecution was vexatious,

frivolous, or in bad faith, unless the court finds that special circumstances

make such an award unjust.Section 617 is popularly known as the Hyde

Amendment, named after its sponsor, Representative Henry Hyde (R-IL).

On or about July 23, 2009, Louis Manzo and Ronald Manzo, were

arrested and charged in a complaint with conspiracy to commit extortion

under color of right in violation of 18 U.S.C. 1951(a). The charges arise

from alleged dealings with long-time government informant Solomon Dwek.

The two were arrested along with many others in a publicity-tinged "take

down" of public officials.


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On or about October 6, 2009, a federal grand jury returned an indictment

against Louis Manzo and Ronald Manzo. As in the complaint, the indictment

alleged a conspiracy to commit extortion under color of official right ,

attempted extortion under color of official right, and travel in interstate

commerce to promote, carryon and facilitate bribery.

On January 27, 2010, defendant Manzo submitted several pretrial

motions, including challenges to the charges themselves. Defendant Ronald

Manzo joined in said motions by letter also filed on January 27, 2010.

On March 23, 2010, the Court held a hearing on said motions, disposing

of several and reserving decision on others. The Government filed a

supplemental letter regarding said motions on March 24, 2010.

On April 20, 2010, the Government returned a Superseding Indictment

against defendants Ronald Manzo and Louis Manzo adding a new charge of

violation of the mail fraud act 18 U.S.C.A. 1341 and 2.

On May 18, 2010, the Hon. Jose Linares, U.S.D.J. issued his opinion

regarding the pending motions and (1) granted Defendants' motion to

dismiss the Hobbs Act charges contained in Counts 1-4 of the Superseding

Indictment in its entirety, (2) denied the defendants' motion to dismiss the

Superseding Indictment in its entirety based on outrageous government

conduct (3) denied Defendants' motion for discovery of the grand jury


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proceedings and (4) denied Defendants' motion for discovery of the

requested Jack Shaw recording.

On May 24, 20 10, the Government filed a Notice of Appeal to the Third

Circuit from the Hon. Jose L. Linares's, J.D.C. Order dismissing the Hobbs

Act Counts of the Superseding Indictment.

On January 11, 2011, oral argument took place in Philadelphia, PA.

before the United States Court of Appeals for the Third Circuit and on May

16, 2011, that Court entered a Judgement affirming the decision of Judge

Linares. The Government then sought two extensions in order to consider

the filing of a request for an en bane hearing before the Third Circuit, but

ultimately chose to seek a second superseding indictment instead.

In July 2011, Defendant Ronald Manzo pled guilty to charges contained

in another indictment, which resulted in the dismissal of the charges against

him in the first superseding indictment. Ronald Manzo agreed to testify

against his co-defendant, Dennis Elwell in the other indictment, and did so

from June 20-23, 2011 in the United States District Court before the Hon.

Jose Linares.

Despite Ronald Manzo having clearly exculpated the defendant, Louis

Manzo from any wrongdoing, on June 24, 2011, the day after Ronald Manzo

finished testifying, the Government brought the charges within the second


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superseding indictment, solely against Louis Manzo two counts of

traveling in interstate commerce to promote, carryon and facilitate bribery

[18 USC 1952 (a) (3)] and misprision of a felony [18 USC 4].

On February 17, 2012, the Hon. Jose Linares, U.S.D.J. issued his opinion

regarding newly filed motions pertaining to the second superseding

indictment and (1) granted Defendants' motion to dismiss all charges in its

entirety, and (2) withheld judgement, rendering as moot, other motions of

the defendant relative to substantive government misconduct and selective

prosecution.

Defendant Louis Manzos attests that his net worth is less than

$2,000,000.00 and the defendant is therefore eligible to receive said award

of attorney fees. This petition has been filed within 30 days of final

judgment in the criminal case and is therefore timely filed under the EAJA

and Title 18 USC provisions. The criminal case was filed after the effective

date of the act, November 26, 1997, in this district and tried before this

court.

The Undersigned defendant, Louis Manzo, acting pro se, retained the

services of John P. Lynch Esq. a sole practitioner engaged primarily in

criminal defense practice and with over 30 years experience. The financial


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agreement was a flat fee of $150,000 for all work prior to trial, and an

agreement of an additional $50,000 for trial. Defendant has paid

to date, with an outstanding balance of still owed to counsel.

Defendant Louis Manzo was the prevailing party within the meaning of

the Act and submits that the prosecution was vexatious, frivolous and in bad

faith both on the United States Attorneys Office for the District of New

Jersey, the Federal Bureau of Investigation and the United States

Department of Justice, all being Departments of the United States of

America, plaintiff herein. There are no special circumstances that make

this award unjust.

ARGUMENT

1.) The government misapplied three relevant laws to wrongfully

prosecute Defendant Manzo, despite precautions cited in DOJ guidelines.

The government applied legal alchemy in attempting to charge Manzo, a

candidate for public office, as a public official. The prosecution wrongfully

proceeded on this theory in charging the Hobbs Act, The Travel Act and the

New Jersey Bribery statute. Despite the clear language of the Appellate

Court decision that candidates are a distinct classification under the law, the


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determining whether to commence or recommend prosecution or take any

action against a person, the standard imposed by the USAM is the attorney

for the government should not be influenced bypolitical associationor

the possible affect of the decision on the attorneys own professional or

personal circumstances. USAM 9-27.260.

In February of 2009, at a campaign event in West Windsor, NJ, Christie

publicly intimated that he was still in contact with USAO staff from his old

office and stated he would be bringing some to Trenton. A text of Christie's

comments:

"You know, we're going to ferret out wasteand fraud and abuse in government. I think

you know I'll do that better than anybody. I'vegot a group of US Attorneys sitting down in

Newark still doing their job. But let me tell you,they are watching the newspapers. And after we

win this election, I'm going to take a wholegroup ofthem to Trenton and put them in

every one of the departments because theysaw a lot of waste and abuse being investigatedwhile we were in the US Attorney's office that

didn't rise to the level of a crime. So I told them,the good news is, when we get to Trenton

we don't have to worry about beyond a reasonabledoubt anymore."

The first of Christie's campaign contributions from USAO attorneys

arrived within weeks of the speech, according to New Jersey ELEC records.

Members of the office who personally or whose family members made


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donations and later obtained jobs in the Christie administration include:

Robert Hanna from AUSA to Director N.J. Division of Law; Richard E.

Constable III from AUSA to N.J. Deputy Labor Commissioner; Charles

McKenna from Exec. Asst. to the United States Attorney to ultimately N.J.

HomelandSecurity Director; Debra Gramiccioni, formally AUSA in charge

of the Commercial Crimes Unit under Christie was later promoted to the

Director of the Authorities Unit in the New Jersey Attorney General's

Office; Rosemary Iannacone from Chief Administrator USAO toDirector of

Operations New Jersey Governor's Office.

Other former key members of the USAO involved in Bid Rig III who

obtained employment in or through the Christie Administration include

Ralph Marra now Director of the New Jersey Sports and Exposition

Authority and Michele Brown now Appointments Counsel, Thomas

Calcagni now Director of the New Jersey Department of Community Affairs

and Christopher Gramiccioni (also a donor), husband of Debra Gramiccioni,

now First Assistant Prosecutor for Monmouth County. Gramiccioni was

personally responsible for the handling of the previous indictments against

Louis Manzo in this case.

Some of these same and other prosecutors negotiated jobs and accepted

the employment prospects promised by Christie, while the Bid Rig III


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investigations and prosecutions that they were overseeing - and which

buoyed Christies campaign - were still ongoing.

Ironically, one of the charges alleged against Louis Manzo is that he

promised employment for an illicit campaign contribution.

In August of 2009, it was disclosed that Christie had given Michele

Brown a personal loan of $46,000.00 which he than failed to report on his

ethics financial disclosure statement and federal income tax report. It was

revealed that Brown had been paying back the loan to the Republican

candidate for Governor of New Jersey while still overseeing an investigation

and prosecution of Democrat candidates for office in Hudson County, which

would ultimately benefit Christie's campaign. Christie called his failure to

report the loanan honest mistake.

The uncovering of Brown and Christie's discreet loan led to a barrage of

complaints from the campaign of Christie's opponent in the election for

Governor, Jon Corzine. The campaign had requested FOIA requests

regarding Brown and Christie's work, travel and expense schedules. Brown

had personally taken charge of the requests despite an obvious conflict of

interest due to her and Christie's financial relationship.


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At the same time another incident regarding a breach of ethics and laws

by Brown, concerning her activities with Bid Rig III, were uncovered by the

New York Times. An article dated October 20, 2009 reported:

" .. .interviews with federal law enforcement officials suggestthat Ms. Brown used her position in two significant and possiblyimproper ways to try to aid Mr. Christie in his run for governor.

In mid-June, when F.B.I. agents and prosecutors gatheredto set a date for the arrests of more than 40 targets of

a corruption and money-laundering probe, Ms. Brownalone argued for the arrests to be made before July 1.

She later told colleagues that she wanted to ensure thatthe arrests occurred before Mr. Christie's permanent successor

took office, according to three federal lawenforcement officials briefed on the conversation, presumably so

that Mr. Christie would be given credit for the roundup ... 13News of Mr. Christie's loan to Ms. Brown broke in August ...

Less than two weeks later, Justice Department officialstold Mr. Christie's interim replacement, Ralph Marra

to remove Ms. Brown from acting as coordinator of theFreedom ofInformation Act requests about Mr. Christie's

tenure because of the obvious conflict of interest, accordingto a federal law enforcement official briefed on the

communications. Ms. Brown resigned from the prosecutor'soffice the same day, the official said."

Because Brown had since resigned her position by the time the New York

Times published its story, no immediate action was taken by neither the DOJ

nor the USAO.

Subsequently, various internet news sources reported that Brown, while

still in a supervisory position in the United States Attorney's Office, had

attended a social gathering held at candidate Christie's Mendham home.


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Though not billed as a political event, many of the attendees were

Republican County Chairmen, legislators and campaign staffers."

Shortly after Christie's election victory, The Star Ledger reported on

November 29, 2009, that Brown had been employed as a volunteer "helping

recruit lawyers from the U.S. Attorneys office for the Christie transition

team." Many of the actual staff from the USAOthat she recruited had been

and were still actively working on the Bid Rig III ongoinginvestigation and

prosecution.

In light of the impact that the prosecution of the Democratic office

seekers in Hudson County would have on the New Jersey election for

Governor (SEE EXHIBIT C), as well as on the future employment prospects

for members of the USAO and their families, individuals from the USAO

who were investigating and prosecuting Bid Rig III - and had a stake in

Christie's election - were required by previously cited agency guidelines and

law to recuse themselves from the investigation and prosecution. They did

not.

In its response to this allegation, during oral arguments, the United States

Attorneys Office did not dispute, nor offer any rebuttal of the defendants

allegations. They attempted to excuse this egregious misconduct of the

United States Attorneys Office by stating:


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conflict of interest, even if it did exist at some point, certainly does notexist, that exists now, and certainly does not exist with respect to the

indictment that we are going to hopefully go to trial for in the coming weeks,because that indictment has been independently reviewed by a

democratically appointed United States Attorney.

The succession of prosecutors in the case does not remedy the harm

handed down. Indeed, the democratically appointed United States

Attorney who independently reviewed the matter had a further obligation

under DOJ guidelines: shall report the evidence or non-frivolous

allegation to the Office of the Inspector General (OIG) or to the Office

of Professional Responsibility (OPR), and to EOUSA. USAM 1-4.100.

4.) The government relied on documents used for securing DOJ approval

for the investigation and the confidential human sources otherwise illegal

activity authorization that were tampered with and forged by the

government.Contrary to strict Attorney General Guidelines, many of these

documents were clipped and pasted together from copies of earlier dated

documentswith the earlier documents date still intact. It is also apparent

that FBI agents and the CHS apparently pre-signed and postdated crucial

affirmations attesting to the CHSs admonishments. These major legal

infractions corroborates the denial of due process to the individuals who

were targeted and then prosecuted. (SEE EXHIBIT D)


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These discrepancies were overlooked by prosecutors with conflicts of

interest cited in argument 3.

5.) The government failed to preserve Jencks material vital to defendant

Manzos defense and proceeded to prosecute the case without intending to

provide it. According to trial testimony by Solomon Dwek and FBI agents,

the government failed to preserve in writing the FBI instructions given to

Dwekduring the hundreds of prep sessions before target meetings and which

lasted sometimes up to an hour.

According to the Attorney General Guidelines, when instructions are

given to a confidential human source regarding Tier I or Tier II Otherwise

Illegal Activity, and which are outside of the investigations mandatory 90-

day reporting sessions, and which might differ or expand the OIA that he has

already been authorized to engage in, then the instructions must be

commemorated in the sources file within 72 hours. According to the

testimony at trial, the instructions were never preserved and placed in

Dweks file. (Attorney General Guidelines Regarding the Use of FBI

Confidential Humans Sources)


interest cited in argument 3. (SEE EXHIBIT E)


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6.) Defendant Manzo was selectively targeted and prosecuted. Solomon

Dweks allegations - testified to under oath - that he bribed Monmouth

County and South Jersey elected officials who were still in office went

unaddressed by prosecutors. Despite statements in investigation reports and

in trial testimony, which corroborate the unlawful conduct regarding

prominent New Jersey Republican party officials and elected officials, and a

prominent Republican Party fundraiser - all with connections to Christie's

campaign for Governor they were spared being targeted under dubious

circumstances.

These individuals, coincidentally, just so happened to play prominent

roles in the gubernatorial campaign of Chris Christie, and some of these

same officials actually ran for office with Christie on the same partisan

ballot line in the November 2009 New Jersey general election. Moreover,

when an actor presented Dwek with the opportunity to bribe the campaign of

Chris Christie, he suspiciously declined - the only time he ever did. Such

misconduct is remnant of the past National scandal involving United States

Attorneys who were fired for failing to engage in selective prosecutions.

Even if Dweks statements, under oath at trial, could not be believed

without taped evidence, it fails to explain why the government allowed such

direct testimony before a jury - if the government had reason to doubt Dwek,


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or why no further targeting or surveillance of these implicated officials was

ever conducted, and why, instead, Dwek was used to target and tape

Democrat party operatives and candidates in Hudson County, who had never

been implicated by anyone as engaging in criminal activity. (SEE EXHIBIT

FNARRATIVE AND SUPPORT DOCUMENTS)



7.) The government mishandled the Confidential Human Source.

Undercover investigations that employ the use of confidential witnesses or

informants (CI or CW) who act as agents for the government must adhere to

protocol and guidelines established by the United States Attorney General .

The guidelines are to ensure the integrity of an investigation and guarantee

that the Constitutional rights of targets in the investigation are not violated.

The AG's Guidelines establish the following restrictions for CI

operations: under no circumstance may the CI participate in an act that

constitutes obstruction of justice (e.g., perjury, witness tampering, witness

intimidation, entrapment, or the fabrication, alteration, or destruction of

evidence) or initiate or instigate a plan or strategy to commit a federal, state

or local offense.


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The guidelines further require that when ever the FBI and USAO

authorize a CI to engage in Tier 1 or 2 Otherwise Illegal Activity, it must

take all reasonable steps to: (a) supervise closely the illegal activities of the

CI; (b) minimize the adverse effect of the authorized Otherwise Illegal

Activity on innocent individuals.

Solomon Dwek was authorized to engage in Tier 1 Otherwise Illegal

Activity. The Tier 1 activity was defined as activity that "would constitute a

misdemeanor or felony under federal, state, or local law if engaged in by a

person acting without authorization; and that involves ... corrupt conduct, or

the significant risk of corrupt conduct, by an elected public official or a

public official in a high-level decision-making or sensitive position in

federal, state or local government." The definition makes it clear to all the

government personnel who reviewed and signed .off on the forms that non-

elected public officials, who were candidates for local public office, were

outside the intended scope of investigations sanctioned by governments'

guidelines. They ignored the guidelines and persisted to target non-public

officials anyway.

The Attorney General's Guidelines' authorization requirements are even

more specific, stating, "The written authorization by the FBI Special Agent-

in-Charge and/or the Chief Federal Prosecutor shall be as narrow as


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reasonable under the circumstances as to the unlawful activity's scope,

geographic area, duration and other related matters."

The guidelines further instructed that, when Dwek was informed of, and

given, his written instructions concerning the Otherwise Illegal Activity, an

FBI Agent and another government official had to be present. The guidelines

then clarify that Dwek was to be instructed that his participation in "any

illegal activity other than the specific conduct set forth in the written

authorization" could subject him to "criminal prosecution."

Because of the Tenth Amendment Constitutional restrictions and

prohibitions cited in the Public Integrity Section guidelines, any Otherwise

Illegal Activity regarding orinvolving the local elections and campaigns that

were underway, were crimes that were off limits and could never be

authorized. Moreover, in order not to leave any lingering doubt, the

guidelines further declare, "the Confidential Human Source shall not initiate

or instigatea plan or strategy to commit a federal, state or local offense."

A read of the governments' descriptions and recordings of the statement

of facts as depicted in the investigation's criminal complaints and the

indictments portrays election conduct. Indeed, the approach to candidates

who were not elected or public officials was the entree of the ongoing

election. Dwek was practically demanding that his targets take his campaign


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donations and not report him, as required, on their election financial

disclosure forms. Sometimes he gave his donations to straw donors, who

then fraudulently cut checks to candidates' campaigns. By way ofexample,

Councilman Mariano Vega's criminal complaint summarized it best: ... CW

further told defendant Vega that the check CW gave defendant Vega was

'only a small token,' and that the CW could be more generous as the election

got closer, but had to figure out ways to contribute without the contributions

coming back directly to the CW."

Throughout the course of the sting operation the USAO and FBI

expended close to $400,000 of checks and cash, of which at least half was

utilized, according to the criminal complaints, in the elections of two cities

in Hudson County - Jersey City and Hoboken. The monies were significant

enough to have had the potential to prevent a runoff election in Jersey City's

mayoral election, potentially altered the Jersey City at-large council election

and affected the Hoboken Mayoral election. As previously stated, such

unprecedented action served to disenfranchise the voters of both

municipalities, corrupted the election results and violated the sovereign

electoral process of States as protected by the United States

Constitution.


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Without approval from the DOJ and USAO, Dwek cannot participate in

criminal conduct. In the case at bar as in others developed during the sting,

Dwek required more oversight since he planned and coerced crimes so

extensively. (See Serrano complaint: pages 3,4,5; see King complaint: pages

3,4,5; see Webb-Washington complaint: pages 3,5,6; see Jaslow, Castagna,

M. Manzo complaint: pages 3,4,5,6; Cammarano and Schaffer complaint:

pages 7,8; Elwell complaint: page 5; Smith and Greene complaint: page 5 ;

Vega complaint: pages 3,4,5,7; Shaw, Cheatam, Beldini complaint: pages

4,5,7,8,9,10,11,13; Louis Manzo and Ronald Manzo complaint: page 3 /

indictment: pages 5,7.

It is apparent that Dwek's use of the bounty system enabled four

defendants (Shaw, Cheatam, Maher Khalil, and Dennis Jaslow) to operate as

appendages for him, without the constraints of the AG's guidelines.

In an apparent attempt to avoid the guideline requirements, the agents and

prosecutors handling Dwek tried to portray his same conduct in two ways -

both as Tier 1 and Tier II Otherwise Illegal Activity. By doing so, they

avoided the scrutiny of Department of Justice overseers. They could not

authorize Otherwise Illegal Activity that federal law states the government

cannot be involved in - affecting the outcomes of elections by passing off

illicit campaign donations into active campaigns through straw donors or


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other means. Therefore, when convenient, they classified the same conduct

as Tier II, in order to ensnare candidates who were not public officials; and

Tier 1 when trying to ensnare public officials, but then they always failed to

elaborate upon the "specific description" of the conduct thatthey had Dwek

engaging in with the targets, as required by the authorization forms.

Both the authorization forms and the Attorney General's Guidelines

require the FBI to implement "precautionary measures" and that they "must

take all reasonable steps to monitor closely the activities of the Confidential

Human Source." They further required that the FBI "must take all reasonable

steps to minimize the adverse effect of the Otherwise Illegal Activity on

innocent persons." The Government did not.


interest cited in argument 3. (SEE EXHIBIT G)

8.) The Government further flouted laws and regulations in its

prosecution of Louis Manzo in the context of his bank records.

The United States Code of Federal Regulations prohibits anyone from

"impeding or endeavoring to influence the due and proper administration of

the law." (18 USC 1505)

The government has only recently made known to the defense the

existence of exculpatory evidence that they possessed prior to the initial


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indictment and that had never since been revealed - the bank statements of

Louis Manzo and the bank statements of the campaign account. This

evidence is part of the proof that Louis Manzo never accepted the "campaign

donations" offered from Dwek.

Louis Manzo knew that the government had accessed his bank records in

August 2009, after his arrest but prior to the first indictment. The bank had

notified him that his accounts were being closed, but declined to state a

reason. Manzo inquired if the closing ofthe accounts were in relation to his

arrest and if the government had obtained his bank records. Again, the bank

declined to answer.

When Manzo personally appeared at the bank, he learned by accident,

and not from government or bank personnel, that the government had in fact

been made privy to his financial records. Under 12 U.S.C. 3413(i) & 12

US.C. 3409 a financial institution must disclose to its customers whether

the government has secured their account. An exception occurs when the

government issues a grand jury subpoena, and obtains a Court Order sealing

the existence of the subpoena.

To obtain such an order, the government must show that revealing the

existence of its subpoena would endanger life or safety, flight from

prosecution, or destruction of evidence. In this case, involving campaign


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donations, the government cannot genuinely claim that any of the above

apply.

In certain circumstances, a financial institution is precluded from

revealing the existence of a grand jury subpoena. See 18 U.S.C. 1510 (i.e.,

bank fraud, money laundering, etc.). In these instances, at the point in time

after the Grand Jury has issued an indictment, the evidence must be

disclosed to the defense. That was not the situation in this case, and the

Governments intrusion into the defendant's bank records violated Louis

Manzo's due process rights and caused him great personal financial harm.

The government stated in oral arguments that they subpoenaed the bank

records, but had never provided this discovery to the defense as provided by

law.



9.) The government failed to present exculpatory evidence to the Grand

Juries, and willfully and knowingly presented false evidence to all of the

defendants Grand Juries. During the oral arguments on motions, the

government acknowledged that Ronald Manzo was not the campaign

manager of defendants mayoral campaign, and moved to strike the language


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from the indictment. The damage, unfortunately, was already repeatedly

done.

Ronald Manzo was never Louis Manzo's campaign manager. This

information was presented to the Government as reciprocal discovery in the

initial indictment, pointed out in Defendant's Third Circuit brief, and is

clearly documented with Louis Manzo's campaign filings. An individual

named Sean Connolly was the campaign manager.

Since the government vetted Louis Manzo's campaign records when it

alleged violations of the New Jersey Election Laws, it clearly was aware of

this situation. Nevertheless, they chose to deliberately ignore it in the

presentation to the Grand Jury for the Second Superseding Indictment. The

Government apparently desired to advance a relationship between Ronald

and Louis Manzo that was more than just siblings - it was serious business.

More than brotherly support, it was made to appear as formal, structured

direction.

However, that portrayal was blatantly untrue and prejudiced the Grand

Juries against Mr. Manzo.

Moreover, the Court should disclose the Grand Jury materials, to

determine if the Government fulfilled its obligation to present exculpatory

evidence. As indicated supra, Ronald Manzo, Louis Manzo's brother and


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former co-defendant consistently and repeatedly testified in United States v.

Elwell, that this defendant was completely unaware of the illicit activities of

himself, Dwek, Shaw and Cheatam.

Since Ronald Manzo concluded his testimony on June 23, 2011 , and the

indictment against Louis Manzo was returned within days, it is extremely

doubtful that the Grand Jury was appraised of this crucial evidence.

Yet, the Department of Justice has mandated that such evidence be

presented to the Grand Jury. United States Attorney's Manual Reg. 9-11.233

pertains to the presentation of exculpatory evidence and states:

In United States v. Williams, 112 S. Ct. 1735 (1992), thesupreme Court held that the Federal courts' supervisorypowers over the grand jury did not include the power tomake a rule allowing the dismissal of an otherwise valid

indictment where the prosecutor failed to introduce

substantial exculpatory evidence to a grand jury. It is thepolicy of the Department of Justice, however, that when aprosecutor conducting a grand jury inquiry is personallyaware of substantial evidence that directly negates the

guilt of a subject of the investigation, the prosecutor mustpresent or otherwise disclose such evidence to the grandjury before seeking an indictment against such a person.While a failure to follow the Department's policy shouldnot result in dismissal of an indictment, appellate courts

may refer violations of the policy to the Office ofProfessional Responsibility for review.


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Should the disclosure of the Grand Jury materials reveal an absence of

the presentation of such testimony, as the defendant anticipates, the

arguments contained elsewhere in this brief, pertaining to selective

prosecution and misconduct on the part of the Government through the

complete disregard and disdain for its own rules are further buttressed.

Here, the particularized need for disclosure of the grand jury

materials is both real and substantial: the grand jurors likely indicted based

on an incorrect understanding of the law and facts. By also charging

misprision of felony, along with the Travel Act violations, the Government

had portrayed Manzo as a bystander to the machinations of his brother and

Ed Cheatam, and an active participant with them in a bribery scheme. The

defense was left with the impression that the grand jury misunderstood the

standards for indicting under those statutes and returned a superseding

indictment based on improper and convoluted evidence. Indeed, if discovery

and a later evidentiary hearing confirm that this impression is true, the

prejudice here would be clear and obvious. Louis Manzo should not have

been indicted.

The discrepancies in the initial and first superseding indictment were

overlooked by prosecutors with conflicts of interest cited in argument 3.


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Applicable Law

In Berger v. United States, 295 U.S. 78, 88 (1935)the Court held:

The United States Attorney is the representativenot of an ordinary party to a controversy, but of

a sovereignty whose obligation to governimpartially is as compelling as its obligation togovern at all; and whose interest, therefore, ina criminal prosecution is not that it shall win acase, but that justice shall be done. As such, he

is in a peculiar and very definite sense the servantofthe law, the twofold aim of which is that guilt

shall not escape or innocence suffer. He mayprosecute with earnestness and vigor - indeed,he should do so. But, while he may strike hardblows, he is not at liberty to strike foul ones.

It is as much his duty to refrain from impropermethods calculated to produce a wrongful

conviction as it is to use every legitimate meansto bring about a just one.

Similary, United States v. Shaygan, 661 F.Supp.2d

1289, 1292 (S.D.Fla. 2009) held:

... it is the responsibility of the United StatesAttorney and his senior staff to create a

culture where 'win-at-any-cost' prosecutionis not permitted. Indeed, such a culture

must be mandated from the highest levels ofthe United States Department of Justice and

the United States Attorney General. It is

equally important that the courts of the UnitedStates must let it be known that, when

substantial abuses occur, sanctions will beimposed to make the risk of non-compliance

too costly.


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Unfortunately, in the case at bar, "the win at any cost" mentality has

pervaded the Governments prosecution of Louis Manzo. He was initially

ensnared in the net of arrests focused on Democrats in Hudson County. As

detailed supra, the Government exacerbated this selectivity through the

illegitimate machinations it employed during the investigation and

prosecution of BID RIG III; to wit, the mishandling of the confidential

source, the blatantconflicts of interest, the "bounty system", the destruction

of the text messages and the refusal to acknowledge Ronald Manzo's

exoneration of his brother from any wrongdoing. However,most glaring is

the Government's continued insistence in ignoring existing case law and

wrongfully prosecuting Manzo as a "public official" when he was only a

candidate. The statutory violations alleged in the indictment simply do not

apply.

This refusal to acknowledge that "candidates" are a separate class of

individuals subject to separate laws Can only be deemed deliberate and in

complete disregard of Louis Manzo's due process rights.

Louis Manzo has also been the victim of selective prosecution within the

parameters of the confidential human source Solomon Dwek, the timeframe

preceding the 2009 gubernatorial election, and the Bid Rig III investigation.

In United States v. Armstrong, 517 U.S. 456,464 (1966), the Supreme Court


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recognized that a claim of selective prosecution "is not a defense on the

merits to the criminal charge itself, but an independent assertion that the

prosecutor has brought the charge for reasons forbidden by the constitution".

Under the equal protection component of the due process clause of the Fifth

Amendment, the decision to prosecute may not be based on "an unjustifiable

standard such as race, religion, or other arbitrary classification". Id. at 464-

65; see also Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir. 2000). "A

defendant may demonstrate that the administration of a criminal law is

'directed so exclusively against a particular class of persons ... with a mind

so unequal and oppressive' that the system of prosecution amounts to a

"practical denial" of equal protection of the law". Id.

In a selective prosecution claim" the moving party must demonstrate, by

clear and convincing evidence, that (1) the federal prosecutorial policy had a

discriminatory effect and (2) that it was motivated by a discriminatory

purpose. Armstrong, 517 U.S. at 465; see also United States v. Smith, 231

F.3d 800, 808 (11th Cir. 2000). Discriminatory effect is proven by showing

that similarly situated individuals were not prosecuted, Ah Sin v. Wittman,

198 U.S. 500 (1906), and discriminatory impact may be demonstrated by

showing a disparate impact. Yick Wo v. Hopkins, 118 U.S. 356 (1886)

(holding that disparate impact is sufficient to show a discriminatory effect).


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Discriminatory purpose examines whether the federal prosecution was

carried out because of its adverse effects upon an identifiable group. Wayte

v. United States, 470 U.S. 598 (1985). Inquiry into discriminatory purpose is

"practical" and must necessarily usually rely on objective factors. Arlington

Heights v. Metro Housing Dev'l Corp., 429 U.S. 252, 266 (1977). If direct

evidence of discriminatory purpose is unavailable, the alleged

unconstitutional purpose must be examined in the context of(1) disparate

impact; (2) historical background; (3) specific events leading up to the

challenged decision; and (4) any associated legislative or administrative

history. Arlington, 429 U.S. at 266-67.

In Government of the Virgin Islands v. Harrigan, 791 F. 2d 34, 36 (3nl

Cir. 1986), the Court discussed the principle of selective prosecution in a

habitual offender case:

However, the Supreme Court has recognizedthat prosecutorial discretion, although broad, is

subject to constitutional constraints. SeeWayte, 105 S.Ct. at 1531. If a prosecutor'sdecisions on whom to prosecute are madeon a discriminatory basis with an improper

motive, the prosecutor's actions may

constitute a violation of the constitutionalguarantee ofequal protection. See Yick W0 v.Hopkins, 118 US. 356, 373-74, 6 S.Ct. 1064,

1072-73,30 L.Ed. 220 (1886); United States v.Lichenstein, 610 F.2d 1272, 1281 (5th Cir.)cert. denied, 447 US. 907, 100 S.Ct. 2991,

64 L.Ed 2d 856 (1980); United States v. Aleman,


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609 F.2d 298, 305 (ih Cir. 1979), cert. denied,445 US. 946,100 S.Ct. 1345,63 L.Ed2d 780

(1980); Crass v. Tennessee Valley Authority,460 F.Supp. 941, 944 (E.D.Tenn. 1978), aff'd

without opinion 627 F.2d 1089 (6th Cir. 1980).

In order to demonstrate that selective prosecutionis a violation of equal protection, defendants

must make two showings. See LeClair, 627 F.2dat 609; United States v. Torquato,602 F.2d 563,569 (3rd Cir.), cert. denied, 444 US. 941, 100

S.Ct. 295, 62 L.Ed.2d 307 (1979); United States v.Johnson, 577 F.2d 1304, 1308 (5th Cir. 1978);United States v. Berrios 501 F.2d 1207, 1211

(2d Cir. 1974). First, they must provide evidencethat persons similarly situated have not beenprosecuted. Second, they must show that the

decisions were made on the basis of anunjustifiable standard, see Wayte, 105 S.Ct.

at 1231; Martin, 549 F.2d at 52; United States v.Berrigan, 482 F.2d 171, 174 (3d Cir. 1973),

"such as race, religion, or other arbitraryclassification.: Oyler, 368 U.S. at 456,82 S.Ct.at 506, or to prevent the defendant's exercise of

a fundamental right, see United States v. Goodwin,457 US. 368, 372-74, 102 S.Ct. 2485,2488-89,

73 L.Ed.2d 74 (1982).

See, United States v. Berrios, 501 F.2d 1209, (2nd Cir. 1974), where the

Court dismissed the charges against the defendant because of selective and

discriminatory prosecution, holding (after citing Oyler, supra.):

Selective prosecution then can become aweapon used to discipline political foe

and the dissident, see, e.g., United States v.Falk, 479 F.2d 616 (ih Cir. 1973); United

States v. Steele, 461 F.2d 1148 (9th Cir. 1972).


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The prosecutor's objective is then divertedfrom the public interest to the punishmentof those harboring beliefs with which the

administration in power may disagree.This case involves such allegations.

During oral argument, the government stated that it did not proceed to

target a prominent South Jersey Republican Official implicated by Dwek

who had resigned from that position in 2007, just as Dwek's cooperation

was beginning, and certainly at that point the Government had no longer had

an opportunity to try to investigate that individual. The fact is that the

individual transitioned from a public official to a party official, and was still

listed in a succession of 90-day a authorization reports for the investigation

through May of 2008. Shortly after the individuals name no longer appeared

in the reports, the individual assumed a prominent role in the primary

campaign and general election campaign of candidate Chris Christie. The

defendant submits that the requisite showing for selective prosecution

(EXHIBIT F) will more than amply be demonstrated.

The standard for recusal is found in Caperton v. A.T. Massey Coal Co.,

129 S.Ct. 2252 (2009), where the United States Supreme Court held that

"under our precedents there are objective standards that require recusal when

the probability of bias on the part of the judge or decision maker is too high

to be constitutionally tolerable."


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Though that case concerned a trial judge, the principles enunciated by the

court are applicable to those decision makers at every level of a legal

proceeding. Ethical codes delineate when an obligation for recusa1 is

necessary, and when a decision is made not to recuse oneself, intervention

by the judiciary is essential to protect a defendant's rights of due process.

In a criminal proceeding, when one's liberty is at stake, the Supreme

Court's standards apply to the investigation, grand jury and prosecution

processes as well. On page 2256, the Caperton court cited Tumey v. Ohio,

273 U.S. 510(1927):

"Every procedure which would offer apossible temptation to the average man... to forget the burden of proof required

to convict the defendant, or whichmight lead him not to hold the balancenice, clear and true between the Stateand the accused, denies the latter due

process of law,"

Recusal, as enunciated in the United States Attorneys Manual and

previously cited, is mandated "where a conflict of interest exists or there is

the appearance of a conflict of interest or loss of impartiality." In

determining whether to commence or recommend prosecution or take any

action against a person, the standard imposed by the USAM is "the attorney

for the government should not be influenced by political association or the

possible affect of the decision on the attorney's own professional or personal


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circumstances." This defendant has shown that conflicts abounded

throughout this investigation, thus tainting the entire prosecution and

bordering on obstruction. (Candidate Christies promise of jobs and

personal loan to prosecutors overseeing the defendants prosecution,

donations from prosecutors overseeing defendants prosecution to Candidate

Christies campaign, job negotiations with Governor-Elect and Governor

Christie transition team and administration by prosecutors who were hired

by Christie administration and who oversaw the defendants prosecution.)

Because of the discretionary language of the Hyde Amendment and the

district courts unique familiarity with trial court litigation, a district court is

vested with discretion in ruling on a defendants motion under 3006A.

United States v.Bowman, 380 F.3d 387, 390 (8th Cir. 2004) (per curium).

As used in 3006A, the term frivolous, according toBowman, is restricted

to those cases where the Governments position is utterly without

foundation in law or fact.Bowman, 380 F.3d at 390 (citing United States v.

Beeks, 266 F.3d 880, 883-84 (8th Cir.2001)). In United States v. Heavrin,

330 F.3d 723 (6th Cir. 2003), the court rejected this more restrictive

definition that had been applied by a lower court and defined frivolous under

the Hyde criteria as: A frivolous position is one lacking a reasonable

expectation of attaining sufficient material evidence by the time oftrial. Id.


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In United States v. Manzo, the District Court and the Appellate Court

characterized the governments theory of prosecution as legal alchemy.

The government, further, could not cite not one legal precedent for bucking

DOJ guidelines and persisted instead, despite a sound District Court and

Appellate Court ruling, to continue to prosecute a candidate for office in an

active election cycle as though he were a public official.

The governments prosecution theory was void of its main necessity a

public official. A prosecution is vexatious for purposes of the Hyde

Amendment if the defendant can show that the criminal case was

objectively deficient, in that it lacked either legal merit or factual foundation,

and a showing that the Governments conduct, when viewed objectively,

manifests maliciousness or an intent to harass or annoy. United States v.

Knott, 256 F.3d 20, 29 (1st Cir. 2001).

In Heavrin, supra, the court said vexatious was similar to frivolous but

is distinguished by embracing the distinct concept of being brought for the

purpose of irritating, annoying, or tormenting the opposing party. A

prosecution is brought in bad faith if it stems, not simply from bad

judgment or negligence, but rather involves the conscious doing of a wrong

based upon dishonest purpose or moral obliquity; ... it contemplates a state

of mind affirmatively operating with furtive design or ill will. United States


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v. Gilbert, 198 F.3d 1293, 1299 (11th Cir. 1999) (internal citations omitted).

Certainly, the recusal requirements for prosecutors and the strict stipulations

regarding conflicts of interest, as underscored by the Supreme Court in

Caperton, were to circumvent a state of mind operating with furtive design

or ill will, United States v Gilbert, and constitute "bad faith." Indeed, the

mindset of these very prosecutors was described by the authors who were

given abirds eye view of the investigation by the government, in their book

depicting Bid Rig III (The Jersey Sting): The FBI and U.S. Attorneys

Office have an uncomplicated view of Hudson County politicians. To

them, there were only two types: the crooked and the dead.

In order to prevail on a motion for attorneys fees and costs under the

Hyde Amendment, a defendant must demonstrate more than that he

prevailed at the pretrial, trial or appellate stages of the prosecution; rather, he

must show that the Governments position underlying the prosecution

amounted to prosecutorial misconduct a prosecution brought vexatiously,

in bad faith, or so utterly without foundation in law or fact as to be frivolous.

In short, in order to grant a Hyde Amendment claim, a court must find

that the governments conduct was wrong and outside the norm as defined

by the above case law. Also see United States v. Stephens, 177 F. Supp.2d

1108, 1112-1115 (D. Mont. 2001), affirmedat United States v. Manchester


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Farming Partnership, 315 F.3d 1176 (9th Cir. 2003), rehearing deniedat

326 F.3d 1028 (9th Cir. 2003). To make a prima facie case of selective or

vindictive prosecution, defendant must show: (1) that someone similarly

situated to him e.g. Republican figures listed in EXHIBIT F, were not

prosecuted; and (2) the decision to prosecute was based on an impermissible

ground. See United States v. Catlett, 584 F.2d 864, 866 (8th Cir. 1978),

such as charging candidate Manzo as a public official, despite precautions

listed in government guidelines and without the support of legal precedent

not one, solitary case law in the history of American jurisprudence to rely

upon or support the government's theory of prosecution.

One of the more egregious tactics in this case was the grossly negligent

conduct of obtaining a superseding indictment without engaging in

minimum due diligence. In the Heavrin case, supra, the Sixth Circuit held

that it is improper. The superseding indictment was obtained to further

harass Manzo because of his desire to exercise his First Amendment right to

speak out against his perceived injustice excoriating past prosecutors for

ignoring ethically driven DOJ guidelines requiring recusal in light of

conflicts of interest, and excoriating current prosecutors for failing to take

corrective actions as required by DOJ guidelines.


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TheHeavrin court concluded that the case must be examined in the total

context of theprosecution and it is possible to recover in cases where some

counts were justified and others were not and this is best decided by the

district court. Defendant submits that the totality of the circumstances

surrounding this unusual and bizarreprosecution (the points in argument - 1

through 9) warrants an award of attorney fees in the amount claimed.

WHEREFORE, defendant moves the Court to award Mr. Manzo reasonable

Attorney fees incurred.

Respectfully submitted,

Louis Manzo

409 8th Avenue

Belmar NJ 07719

Dated: March 14, 2012

Documents

Louis Manzo Motion for Attorneys Fees, March 14, 2012