SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 72--------------------------------------------------------------------- x

THE PEOPLE OF THE STATE OF NEW YORK,

Plaintiff,

-against-

STEVEN DAVIS, STEPHEN DICARMINE, JOEL SANDERS, and ZACHARY WARREN,

Defendants.

Indictment Number 773/2014

MEMORANDUM IN SUPPORT OF OMNIBUS MOTION

TABLE OF CONTENTS

PageTABLE OF AUTHORITIES.................................................................................................................. iii

INTRODUCTION.....................................................................................................................................7

POINT I 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)...................................................................................................................................81. The Court Should Dismiss the Private Placement Funds Counts (Counts

Two Through Fourteen)............................................................................................. 102. The Court Should Dismiss the Line of Credit Counts (Counts Fifteen and

Sixteen)........................................................................................................................ 13

B. The Court Should Dismiss the Falsifying Business Records Counts (Counts Seventeen through One Hundred and Four)....................................................................141. The Court Should Dismiss Counts 17 through 104 Because The Defendants

Did Not Intend To Commit, Aid Or Conceal Another C rim e..............................152. The Court Should Dismiss Counts 72 through 74 and 78 through 104

Because the Records Do Not Relate to the Condition or Activity o f the Recipient Entities........................................................................................................16

3. The Court Should Dismiss the Indictment As To a Defendant If theEvidence Does Not Demonstrate That He Acted With the Requisite Knowledge and Intent To Commit the Crimes Charged...................................... 20

POINT II THE COURT SHOULD EXAMINE THE LEGAL INSTRUCTIONSGIVEN 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................... 21

A. Instructions Concerning Accounting Issues................................................................... 211. “Backdated” Checks................................................................................................... 232. Reversing Disbursement Write-Offs.........................................................................253. 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

A. The Court Should Strike Language o f 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 ISMULTIPLICITOUS...........................................................................................................32

POINT V THE COURT SHOULD REVIEW THE GRAND JURY MINUTESAND 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 NOTCOMPORT 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 ToReturn It Was Not Legally In Existence......................................................................... 35

POINT VI THE COURT SHOULD DIRECT THE PEOPLE TO PROVIDE THEDISCOVERY AS WELL AS THE BILL OF PARTICULARS REQUESTED BY THESE DEFENDANTS.............................................................................................36

CONCLUSION........................................................................................................................................44

TABLE OF AUTHORITIES

CASES

Boyd v. United States,908 A.2d 39 (D.C. 2006).................................................................................................................... 38

Brady v. Maryland,373 U.S. 83 (1963).............................................................................................................................. 36

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)...................................................................................................... 32

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)................................................................................................................ 17

People v. Bolden,194 A.D.2d 834 (3d Dep’t 1993)..................................................................................................... 12

People v. Brinkman,309 N.Y. 974,(1956)..........................................................................................................................33

People v. Caban,5 N.Y.3d 143 (2005)....................................i..................................................................................... 27

People v. Cannon,210 A.D.2d 764 (3d Dep’t 1994)...................................................................................................... 22

People v. Cartwright,293 A.D.2d 882 (3d Dep’t 2002)...................................................................................................... 27

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)...................................................................................................... 22

People v. Diaz,209 A.D.2d 1 (1st Dep’t 1995)...........................................................................................................27

iii

People v. Eun Sil Jang,17 A.D.3d 693 (2d Dep’t 2005)........................................................................................................ 34

People v. Green,188 A.D.2d 662 (2d Dep’t 1993)...................................................................................................... 27

People v. Harris,181 Misc.2d 670 (Sup. Ct. Bronx Cnty. 1999)............................................................................... 34

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)........................................................................................................ 26

People v. Jennings,69N.Y.2d 103 (1986).................................................................................................................... 9, 10

People v. Kim,209 A.D.2d 167 (1st Dep’t 1994)...................................................................................................... 31

People v. Kirnon,39 A.D.2d 666 (1st Dep’t), a ff’d, 31 N.Y.2d 877 (1972).............................................................. 10

People v. Kisina,14 N.Y.3d 153 (2010)....................................................................................................................... 18

People v. Lancaster,69 N.Y.2d 20 (1 9 8 6 )................................................................................................................... 11,22

People v. Linardos,104 Misc.2d 56 (Sup. Ct. Queens Cnty. 1980).............................................................................. 18

People v. Norman,85 N.Y.2d 609(1995)........................................................................................................................ 13

People v. Norman,No. 6435/03, 2004 WL 2624644 (Sup. Ct. Kings Cnty. Nov. 16, 2004)....................... 17, 18, 19

People v. O ’Neill,285 A.D.2d 669 (3d Dep’t 2001)...................................................................................................... 27

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)..................................................................................................... 17

People v. Pelchat,62 N.Y.2d 97 (1984)...........................................................................................................................22

People v. Perez,No. 2664/2000, 2001 WL 1603461 (Sup. Ct. Queens Cnty. July 11, 2001)................................ 16

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)..................................................................................................... 13

iv

People v. Salko,47 N.Y.2d 230, rearg. denied, 47 N.Y.2d 1010 (1979).................................................................. 27

People v. Saperstein,2 N.Y.2d 210 (1957)...........................................................................................................................33

People v. Smalls,81 A.D.3d 860 (2d Dep’t 2011)........................................................................................................ 32

People v. Tolbert,198 A.D.2d 132 (1st Dep’t 1993)...................................................................................................... 31

People v. Townsend,127 A.D.2d 505 (1st Dep’t 1987)...................................................................................................... 26

People v. Valles,62 N.Y.2d 36 (1984).......................................................................................................................... 11

People v. Wade,260 A.D.2d 946 (3d Dep’t 1999)...................................................................................................... 27

United States v. Agurs,427 U.S. 97 (1976).............................................................................................................................. 37

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. § 1.166(f)................................................................................................................................ 2526 C.F.R. § 1.446-l(c)(i)........................................................................................................................2326 C.F.R. § 1.451-2(a)............................................................................................................................23CPL § 60.22............................................................................................................................................. 27CPL § 190.30(7).......................................................................................................................................22CPL§ 190.65(1)............................................................................................................................... 13,27CPL § 200.50(7)(a)................................................................................................................................. 29CPL § 200.95(5)................................................,..................................................................................... 36CPL § 210.20(l)(b)....................................................................................................................................8CPL § 210.20(l)(c)..................................................................................................................................11CPL §210.25(1).......................... 8CPL §210.30 ..............................................................................................................................................8CPL §210.30(3)......................................................................................................................................... 8CPL § 210.35(5)....................................................................................................................................... 11CPL §240.40(l)(a)............................................................................................................................ 36,38CPL §240.40(l)(c).................................................................................................................................. 36N.Y. Const. Art. I, § 6 ............................................................................................................................. 29NYUCC § 3-114......................................................................................................................................24NYUCC § 3-114(a)................................................................................................................................. 24

NYUCC § 3-114(2)................................................................................................................................. 24Penal Law § 15.05........................................................................................................................... 21, 26Penal Law § 15.15............................................................................................................................21, 26Penal Law § 15.20............................................................................................................................21, 26Penal Law § 105.00(1)............................................................................................................................27Penal Law § 155.00(1).............................................................................................................................. 9Penal Law § 155.00(3).............................................................................................................................. 9Penal Law § 155.00(4).............................................................................................................................. 9Penal Law § 155.05(1)............................................................................................................................20Penal Law § 155.05(2)(a)...................................................................................................................... 20Penal Law § 155.05(2)(d)...............................................................................................................12, 13Penal Law § 175.00(2)........................................................................................................................... 17Penal Law § 175.05................................................................................................................................. 20Penal Law § 190.60................................................................................................................................. 206 N.Y. Prac. Criminal Law § 12:5 (3d ed.)............................................................................................9I.R.S. TAM 9432002 (Aug. 12,1994).....................................................................................................25Donnino, Practice Commentary, McKinney’s Consol. Laws § 155.00 (2010).................................9Preiser, Practice Commentary, CPL § 200.10, McKinney’s Consol. Laws,

Book 11A (2007)......................................................................................................................... 28,33

INTRODUCTION

This memorandum of law is submitted on behalf o f 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

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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 o f 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 o f 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 §§ 210.20(l)(b), 210.25(1) and 210.30. 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 § 210.30

(3). Release of the minutes is particularly appropriate given the complexity o f 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

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 § 155.00(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 of 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 § 155.00(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 § 155.00(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

of the possession and use thereof.” Id. at 118 (emphasis added); Donnino, Practice Commentary,

McKinney’s Consol. Laws, § 155.00 (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 o f it for the benefit of the thief or another or under

circumstances rendering it unlikely that the owner will recover it (P.L. § 155.00(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 120.

1. 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 o f 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, 2020.

10

• During those two years every interest payment on the notes was made timely;

• D&L was on the brink o f 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 of the indictment. CPL §§ 210.20(l)(c); 210.35(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

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 155.00(1), 155.00(3) and 155.00(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 of grand larceny by false promise, Messrs. Davis, DiCarmine

and Sanders submit that the grand jury minutes also lack evidence of the particularized

requirements of that charge. PL § 155.05(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

PL § 155.05(2)(d).3 While moral certainty is a standard only to be applied by the finder o f 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 § 190.65(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 o f 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 obtainsproperty 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 § 155.05(2)(d).

13

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

o f 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 o f 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 § 175.10. Indictment, Counts 17-104. 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

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 78-104). But because they relate to the financial

condition of 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 §

175.10, 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, 2001

4 The defendants tried to have the prosecution identity the “other crimes” by serving a Request for aBill of Particulars for that information on May 28, 2014. 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, 75-77.

6 Indictment, Counts 72-74, 78-104.

15

WL 1603461, 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 78-89. 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

kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or

activity.” PL § 175.00(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 2624644, 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 o f 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 of 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 of organization submitted to charities for

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funding did not reflect the condition or activity o f 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, 159-

60 (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 o f [“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. 2004 WL 2624644 at **7-9. The court held that the

contribution report was not a business record of the Board of Elections because it “‘reflected the

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. . . activity’ o f 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 o f 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 of [the Bondholders].”

Just as the management representation letters did not reflect the financial condition or

activity o f 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 of the recipient organization, stating:

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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 of 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 §155.05(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 §§ 155.05(2)(a); 175.05; 190.60. 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

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 of the applicable

accounting rules and regulations and legal accounting standards to know that the representations

or entries at the bottom of 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, 15.20.

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. 4-5. 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

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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 § 190.30(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

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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. § 1.446-1 (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. § 1.451-2(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.

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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 § 3-114. 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 o f 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

o f Count One.

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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 o f 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 of 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 9432002

(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. §1 .166(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).

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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.10

3. 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, 15.15 & 15.20.

“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 § 210.30(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

can be no conclusion other than that the “instructions were so deficient as to impair the integrity

o f 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 o f 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 § 105.00(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).11

11 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; 190.65(1).

27

This indictment contains a conspiracy count. Most of, if not all o f 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 o f 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 § 200.10, 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.

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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 ju ry ....” 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 o f an evidentiary nature, (a)

asserts facts supporting every element o f 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 § 200.50 (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

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 OnIts 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

that a “prosecutor exceeds the bounds o f 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 cross-

examination 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

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 o f 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

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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, 975-976, (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 o f N.Y., Book 11 A, CPL § 210.35 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.

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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 o f the essential and

critical evidence actually voted to return each count of 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 of 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 o f the Court o f

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 o f those four.

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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 Ifthe 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 § 190.15(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 o f 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.

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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 §240.40(1 )(a) (the Court “must order discovery as to any material not

disclosed upon a demand pursuant to section 240.20, 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 o f 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 § 200.95(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 §240.40(l)(c).

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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

of Brady information concerning those cooperators —the Court should not permit the District

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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 o f 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 240.20 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 o f the United States.” That means Brady material. The defendants

made a request for that material. Appendix B. CPL § 240.40(1 )(a) requires the Court to “order

discovery as to any material not disclosed upon a demand pursuant to section 240.20, 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, 682-83 (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.”

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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 email 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 o f 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

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.

For example, in defendants’ discovery demand letter, dated May 28, 2014, defendants

requested:

[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 o f 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 of 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 § 240.20(l)(a)-(i)”, he has not. CPL § 240.20(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 of 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

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

o f 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 of the particulars of the offenses alleged, the District Attorney posits

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that all of the required information is contained in the (1) indictment, (2) VDF, (3) cooperators’

allocutions, (4) “Statement of 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 o f 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 of particulars.

For example, as discussed above, the falsifying business records “disclosures” consist

largely of a series of “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 of little use. Nor do the cooperators’ allocutions provide any information

about the nature o f 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 of 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.

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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 o f 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.

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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, 2014New York, New York

M ORVILLO ABRAM OW ITZ GRAND IASON & ANELLO P.C.By: Ellcan Abramowitz 565 Fifth Avenue New York, New York 10017 Tel: 212-880-9600

Austin V. Campriello

BRYAN CAVE LLP1290 Avenue of the Americas New York, New York 10104 Tel: 212-541-2000 Fax: 212-541-4630

Attorneys fo r Defendant Stephen DiCarmine

HUGHES HUBBARD & REED LLPBy: Edward J. M. Little One Battery Park Plaza New York, NY 10004-1482 Tel: (212) 837-6000 Fax: (212) 422-4726

Counsel fo r Defendant Joel I. Sanders

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O f Counsel:

MORVILLO ABRAMOWITZ GRAND IASON & ANELLO P.C.Lawrence S. Bader, Esq.Rachel Y. Hemani, Esq.Dana M. Delger, Esq.

BRYAN CAVE LLPMary Beth Buchanan, Esq.Kathryn E. Gebert, Esq.Anne Redcross, Esq.

HUGHES HUBBARD & REED LLPMarc Weinstein, Esq.David Shanies, Esq.

APPENDIX A

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 2008. 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

minimum defined year-end cash flow. Because of its poor financial performance, the Firm was

unable to meet this covenant in 2008.

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

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

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 2011.

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

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 2009. 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 Credit

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

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 2009.

The Bankruptcy

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,

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 §155.42,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 §155.42,

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.

APPENDIX B

HughesHubbard

H u g h e s H u b b a rd G f R eed IAP O ne B attery P a r t Plaza

N ew York, N ew Y ork 10004-1482 T elephone: 212-837-6000

Fax: 212-422-4726 hugheshubbard .com

E dw ardJ .M . Little D irec t D ial: 212-837-6400

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 10013

Re: People v. Steven Davis, Stephen DiCarmine, Joel Sanders and Zachary Warren. Indictment No. 773/2014

On behalf of our client Joel Sanders, we are making the following requestspursuant 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 § 240.20(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 ourrequests 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 itis 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.)

Dear Messrs. Moser and Pilnyalc;

N ew York a W ashington , B .C . ■ Ij i s Angeles s M iam i » Jersey C ity b Kmisns City ■ P aris ■ Tokyo

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.

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.

11. Any use of illegal drugs or misuse of prescribed drugs by a prosecutionwitness.

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 §240.20(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 § 240.45) 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.

Edward J.M. Little

cc: Elkan Abramowitz, Esq. Lawrence S. Bader, Esq.

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

APPENDIX C

Hughes Hubbaitl & Heed LU>O n e B attery Pntk Plaza

N ew Y ork, N ew Y ork 10004-1482 T elephone. 212-837-6000

■ Fax; 212-422-4726 h u g h es liu b b a rd cu m

E d w ard J.M . L ittle D ire c t D ial: 212-837-6400

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 10013

Re: People v. Steven Davis, Stephen DiCarmine, Joel Sandersand 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, emails and correspondence between the

HughesHubbard

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

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, emails 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, emails 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, emails 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.

Peirce R, Moser, Esq./Steven Pilnyak, Esq.April 29, 2014

Page 3

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.

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 § 240.40.

In addition, please consider this letter a request pursuant to CPL 240.43 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,

Edward J.M. Little

cc: Elkan Abramowitz, Esq. Lawrence S. Bader, Esq, Austin V, Campriello, Esq, Mary Beth Buchanan, Esq. Marc Weinstein, Esq.

APPENDIX D

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,

Defendants.

Ind. No. 773/2014

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 § 200.95. 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.

Without the requested information the Defendants cannot adequately prepare or conduct their

defense.

Therefore, pursuant to CPL § 200-95, 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:

1. Describe the substance of each Defendant’s conduct encompassed

by each offense charged.

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.

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;

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:

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.

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

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:

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 190.05 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

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.

10

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, 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).

18. Identify the following individuals referred to in the Indictment as

“others”:

(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 2012.

(b) The “otherQ” 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 2008.

(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 2010.

(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

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

13

Were received,” and (f) the act(s) or omission(s) that Constituted “efforts to hide the date

on which the checks were received.” .

26. 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 2010.

27. 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.

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) 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 § 200.95(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,

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 10004 (212) 837-6400(telephone.) (212) 422-4726 (fax)

Attorneys for Defendant Joel Sanders

APPENDIX E

Austin V. Cattipriello Voice: 212-541-2065 Fax: 212-541-1365avcampriello@ bfyancave.com

May 28,2014

/

BY Pdf AND REGULAR MAIL

Peirce MoserAssistant District AttorneyNew York County District Attorney’s OfficeOne Hogan PlaceNew York, New York 10013

Re: People v. Steven H. Davis, Joel Sanders, Stephen DiCarmineand Zachary Warren. Indictment. 773/2014

Dear Mr. Moser:

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 email 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 email on behalf o f defendants Davis, Sanders and DiCarmine a formal Demand for Discovery. Today, Mr. Little sent to you by email 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;

B ryan Gave LLP1290 Avenue of the AmericasNew York, NY 10104-3300T e l(212 )S41-200DF ax(2121541-4630www.bryancave.eom

Bryan Cave Olflces

Atlanta

Boulder

CharlotteChicago

Colorado Springs

DallasDenver

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 CaveIn te rn a tio n a l ConsultingA TRADE A N D CUSTOMS COHSOirAHCV

www.bryancaveconsultlng.comBangkok

Jakarta

Kuala Lumpur

M anila

Shanghai

Singapore

Tokyo

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 emails from the Operations Committee;

• a complete set of the Executive Committee minutes;

• all agendas, minutes, materials, recordings, and. follow-up memoranda related to eachExecutive 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

1797553.1

APPENDIX F

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 o f the crimes charged in the indictment or that any defendant is not guilty o f any one or more of the crimes charged in the indictment.”

No direct responses. General response to all requests:

“You make a series o f 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 (1979); and CPL § 240.20(1) (h). We are aw are of our continuing duties under Brady, Giglio and their progeny and will honor our obligations.”

2) “Any statement by any witness that persons other than the defendants are guilty o f 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 o f 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 o f a professional license, or an agreement to assist in mitigating any potential collateral consequence o f 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 o f the indictment or for the representations in the bond offering.”5) “The existence o f any document not otherwise produced by the prosecution indicating that others were responsible for the accounting treatments that are the subject o f 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 o f any of the

Defendants’ Discovery Requests and District Attorney’s Reponses

accounting treatments that are the subject o f the indictment.”___________7) “The existence of any document not otherwise produced by the prosecution indicating that partners o f Dewey & LeBoeuf, including members of its Executive Committee, were aware o f 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 o f 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 o f 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 Letters (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 o f certain lists o f 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

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, emails and correspondence between the two, audit workpapers, financial statements (drafts and finals), 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) “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, emails and correspondence between the entities, audit workpapers, financial statements (drafts and finals), and the like.”

4) We have produced “all responsive property in our possession.”

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, emails 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 o f same, and the like.”

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, emails 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) 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

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. 7) “To the extent responsive property exists and has not

otherwise been produced, the defendants are not entitled to it at this time.”

8) Any and all property provided by any former partner or employee of Dewey or their counsel or agents. 8) “To the extent responsive property exists, the defendants

are not entitled to it at this time.”

9) Any and all property provided by The American Lawyer.9) “To the extent responsive property exists, the defendants are not entitled to it at this time.”

10) Any and all property provided by McKinsey & Company (“McKinsey”) relating to advice about the merger o f Dewey Ballantine and LeBoeuf Lamb or material submitted by others to McKinsey in that connection.

10) “To the extent responsive property exists, the defendants are not entitled to it at this time.”

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.

11) “To the extent responsive property exists, the defendants are not entitled to it at this time.”

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.

12) “To the extent responsive property exists and has not otherwise been produced, the defendants are not entitled to it at this time.”

13) Any and all property provided by Bingham McCutchen LLP relating to legal work or advice provided to Dewey or any of the defendants. 13) “To the extent responsive property exists, the

defendants are not entitled to it at this time.”

14) Any and all property provided by private investigators relating to Dewey. 14) “To the extent responsive property exists, the defendants

are not entitled to it at this time.”

4

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. 15) “To the extent responsive property exists and has not

otherwise been produced, the defendants are not entitled to it at this time.”

16) Any and all recordings to the interview of Zachary Warren, whether written, taped or electronically recorded. 16) “To the extent responsive property exists, the

defendants are not entitled to it at this time.”

17) Any and all materials and information described in CPL )240.20(I)(a)-(i), 17) “We have provided all responsive material and have

complied with our obligations under 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.

18) “To the extent responsive property exists and has not otherwise been produced, the defendants are not entitled to it at this time.”

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.”

No response

CPL § 240.43: Request for notification to each defendant “o f all specific instances of any conduct o f the type set forth in that section that you intend to use at trial.”

“[T]he defendants are not entitled to this information at this time.”

5

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 the producing party, and which the DANY has not produced to defendants in its voluntary production on the alleged basis of work product privilege or any other privilege;”

“To the extent a responsive log exists, the defendants are not entitled to it.”

“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 o f privilege);”

“To the extent responsive correspondence or other writings exist, the defendants are not entitled to them.”

“all Compensation Committee records, including but not limited tospreadsheetsshowing compensation;”

“To the extent responsive records exist and have not otherwise been produced, the defendants are not entitled to them at this time.”

“all Operations Committee agendas and follow-up emails from theOperationsCommittee;”

“To the extent responsive records exist and have not otherwise been produced, the defendants are not entitled to them at this time.”

“a complete set of the Executive Committee minutes;”“To the extent responsive minutes exist and have not otherwise been produced, the defendants are not entitled to them at this time.”

“all agendas, minutes, materials, recordings, and follow-up memoranda related to each Executive Strategic Weekend session (typically, three “To the extent responsive records exist and have not

6

Defendants’ Discovery Requests and District Attorney’s Reponses

days of meetings and planning for the year, sometimes held in March or April);”

otherwise been produced, the defendants are not entitled to them at this time.”

“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);”

“To the extent responsive records exist and have not otherwise been produced, the defendants are not entitled to them at this time.”

“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.”

“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 acts/omissions or fraudulent entries, the date place and time, and the identity of others who participated in the act/omission.

Defendants are not entitled to any other information beyond what has been provided in the indictment; the VDF; the Plea and Cooperation Agreements o f the seven cooperators; the Statement of Facts; and the Disclosures - Falsifying Business Records Counts, served in court on all counsel on April 21, 2014.

2 (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 o f 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

Defendants’ Discovery Requests and District Attorney’s Reponses

as others,” specify:

“The identity o f each auditor to whom any Defendant allegedly lied, the identity of the Defendant(s) who allegedly lied, the date on which each alleged lieoccurred and the substance of each alleged lie;”____________________________3(b): “The identity o f 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 allegedmisleading statement;”__________________________________________________3(c): “The identity o f each partner to whom any Defendant allegedly lied, the identity of the Defendant(s) who allegedly lied, the date on which each allegedlie occurred and the substance of each alleged lie;”__________________________3(d): “The identity of each partner any Defendant misled, the identity o f the Defendant(s) who misled that auditor, the date on which each act o f misleadingoccurred 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, andthe 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 ofmisleading occurred and the substance of each misleading statement.”_________4 (a-g): “With respect to the allegation in Count One o f 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 o f 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 whomthe Defendant allegedly worked.”_________________________________________5(a): “With respect to the allegation in Count One o f the Indictment concerning the Private Placement that ‘the Schemers provided potential investors and lenders with financial statements that falsely represented, among other things,

8

information beyond what has been provided in the indictment; the VDF; the Plea and Cooperation Agreements o f the seven cooperators; the Statement of Facts; and the Disclosures - Falsifying Business Records Counts, served in court on all counsel on April 21, 2014.

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 o f 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 o f 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 o f the Indictment concerning bankruptcy, the factual information that the People intend to prove at trial about the bankruptcy and its causes.

9

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 o f 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 o f 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 o f 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 o f 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 o f ‘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 o f 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

Defendants’ Discovery Requests and District Attorney’s Reponses

business records o f each specified enterprise to be made (and, if so, who made the entry);”16(d): “whether each o f the Defendants made or caused each alleged false entry in the business records o f 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 of another crime (and, if so, what crime(s));”16(f): “for each allegedly false entry in the records o f 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

Defendants’ Discovery Requests and District Attorney’s Reponses

Indictment only as ‘other’”:

The ‘other fraudulent adjustments’ (apart from those allegedly described in thedocument called the “Master Plan”) and ‘other fraudulentConduct’ the “Schemers” allegedly engaged in from 2008 through 2012”20(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 2008”20(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 o f several o f its covenants,” who allegedly engaged in such “other fraudulent activities,” and the dates and times o f 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 of credit in April 2010.”20(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.”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 of the write-off allegedly reversed, (f) who

12

Defendants’ Discovery Requests and District Attorney’s Reponses

allegedly ordered that the write-off be reversed, and (g) who allegedly made thefraudulent 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 o f the disbursement allegedly reclassified, (f) who allegedly ordered that the disbursement be reclassified, and (g) who allegedlymade the fraudulent entry._______________________________________________23: For the alleged $24 million write-off o f 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 o f 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 o f 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” aboutthe 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

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 year- end 2010, and (h) the date and time the funds were allegedly applied “as a feepayment for the same client” for year-end 2010.____________________________27: 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, of such actsor 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 andtime such amounts were “budgeted to be written off in 2009 instead.”_________30: With respect to the “[m illions o f dollars worth o f 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

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

APPENDIX G

D IS T R IC T A T T O R N E YOFTHE

COUNTY: 0F-iNEW YORK ONE HOGAN PLACE

New Y o ^ rN . Y. 10013 (212)335-9000

C YR US R, V A N C E ,J R .DISTRICT ATTORNEY

April 21,2014

B v HandElkan Abramowitz, Esq.Morvillo Abramowitz Grand Iason & Anello PC 565 Fifth Avenue,New York, New York 10017

Re: People v. Davis. DiCaimine. Sanders, and Warren, Tnd. 772/2014

Dear Elkan:

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-0000001 through NYDA-0000036 Count 18: Bates Range N YD A-0000037 through NYDA-0000074 Count 19: Bates Range NYDA-0000075 through NYDA-0000096 Count 20: Bates Range NYDA-0000097 through NYDA-0000105 Count 21: Bates Range NYDA-0000106 through NYDA-0000108 Count 22: Bates Range NYDA-0000109 Count 23: Bates Range NYDA-0000110Count 24: Bates Range NYDA-0000111 through NYDA-0000165Count 25: Bates Range NYDA-0000166 through NYDA-0000341Count 26: Bates Range NYDA-0000342 through NYDA-0000369Count 27: Bates Range NYDA-0000370 through NYDA-0000372Count 28: Bates Range NYDA-0000373 through NYDA-0000377Count 29: Bates Range NYDA-0000378Count 30: Bates Range NYDA-0000379 through NYDA-0000381Count 31: Bates Range NYDA-0000382Count 32: Bates Range NYDA-0000383Count 33: Bates Range NYDA-0000384 through NYDA-0000386Count 34: Bates Range NYDA-0000387 through NYDA-0000445Count 35: Bates Range NYDA-0000446Count 36: Bates Range NYDA-0000447 through NYDA-0000502Count 37: Bates Range NYDA-0000503 through NYDA-0000533

Elkan Abramowitz, Esq.April 21,2014 Page 2

Count 38: Bates Range NYDA-0000534 through NYDA-0000544 Count 39: Bates Range NYDA-0000545 through NYDA-0000558 Count 40: Bates Range NYDA-0000559 through NYDA-0000579 Count 41: Bates Range NYDA-0000580 through NYDA-0000593 Count 42: Bates Range NYDA-0000594 through NYDA-0000610 Count 43: Bates Range NYDA-0000611 through NYDA-0000631 Count 44: Bates Range NYDA-0000632 through NYDA-0000634 Count 45: Bates Range NYDA-0000635 Count 46: Bates Range NYDA-0000636 Count 47: Bates Range NYDA-0000637 Count 48: Bates Range NYDA-0000638Count 49: Bates Range NYDA-0000639 through NYDA-0000670 Count 50: Bates Range NYDA-0000671 through NYDA-0000674 Count 62: Bates Range NYDA-0002154 through NYDA-0002178 Count 63: Bates Range NYDA-0002179 through NYDA-0002206 Count 64: Bates Range NYDA-0002207 through NYDA-0002326 Count 65: Bates Range NYDA-0002327 through NYDA-0002342 Count 66: Bates Range NYDA-0002343 through NYDA-0002364 Count 67: Bates Range NYDA-0002365 through NYDA-0002386 Count 68: Bates Range NYDA-0002387 through NYDA-0002389 Count 69: Bates Range NYDA-0002390 through NYDA-0002410 Count 70: Bates Range NYDA-0002411 Count 71: Bates Range NYDA-0002412 through NYDA-0002427 Count 72: Bates Range NYDA-0002428 through NYDA-0002435 Count 73: Bates Range NYDA-0002436 through NYDA-0002441 Count 74: Bates Range NYDA-0002442 through NYDA-0002447

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.

Peirce R. Moser Assistant District Attorney

Ends.

cc: Hon. Robert M. Stolz (w/out compact disc end.)

Disclosures — Falsifying Business Records CountsPeople v. Davis. DiCarmine* Sanders, and Warren. Ind. 773/2014 and

People v. Warren. (Ind. 5393/2013)Count

Ind. 773/2014 (Ind.

5393/2013)

Date ot Range (on or around) from Ind. 773/2014 (Ind.

5393/2013)Enterprise Disclosure

17(6)January 8, 2009(December 30,2008 to January 8, 2009)

Dewey & LeBoeuf LLP Reversing disbursement write-offs, Elite batch GJ743484

18(5)January 5, 2009(December 30, 2008 to January 5, 2009)

Dewey & LeBoeuf LLP Reclassifying disbursement payments, Elite batch GJ736026

19(1)January 2, 2009(December 30, 2008 to January 2, 2009)

Dewey & LeBoeuf LLP Reclassifying disbursement retainer; Elite batch GJ731207

20 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 GT745102

22(3)January 5,2009(December 30, 2008 to January 5, 2009) ■

Dewey & LeBoeuf LLP One London Wall reverse premium, Elite batch VH010509NY, Entry 11276

23(4)January 5,2009(December 30,2008 to January 5, 2009)

Dewey & LeBoeuf LLP Austin lease termination fee, Elite batch VH010509NY, Entry 11278

24 January 4, 2010 Dewey & LeBoeuf LLP Reversing disbursement write-offs for account 6305, Elite batch GJ1217198

25 January 13, 2010 Dewey & LeBoeuf LLP Reversing disbursement write-offs for account 6300, Elite batch GJ1228984

26 January 13, 2010 Dewey & LeBoeuf LLP Reclassifying disbursement payments, Elite batch GJ1229843

27 January 13, 2010 Dewey & LeBoeuf LLP Fictitious client payment, Elite batch GJ1223810

Falsifying Business Records Counts DisclosuresPeople v. Davis. DiCarmine. Sanders, and Warren. Ind. 773/2014 and

People v. Warren. (Ind. 5393/2013)Count -

Ind. 773/2314 (Ind.

5393/2013)

Date or Range (on or around) from Ind. 773/2014 (Ind.

5393/2013)Enterprise Disclosure

28 January 13, 2010 Dewey & LeBoeuf LLP Applying partner capital as fee revenue, Elite batch GT1229772

29 January 7, 2010 Dewey & LeBoeuf LLP Applying partner capital loans to increase net income, Elite batch GJ1225627

30 December 2009 to January 2010 Dewey & LeBoeuf LLP Backdated check31 December 2009 to January 2010 Dewey & LeBoeuf LLP Payroll checks. Elite batch NB123109VD32 December 2009 to January 2010 Dewey & LeBoeuf LLP Vendor checks, Elite batch LR123109BB

33 January 11, 2010 Dewey & LeBoeuf LLP Reclassifying payments as return of capital, Elite batch BN01112010A

34 January 13, 2010 Dewey & LeBoeuf LLP Reversing credit card write-offs, Elite batch GJ1228984

35 December 2010 to January 2011 Dewey & LeBoeuf LLP Reversing write-off, EEte batch NB123110HA

36 January 11,2011 Dewey & LeBoeuf LLP Reversing disbursement write-offs for account 6300, Elite batch GJ1676141

37 January 10,2011 Dewey & LeBoeuf LLP Reclassifying disbursement payments, Elite batch GT1675648

38 January 10, 2011 Dewey & LeBoeuf LLP Reclassifying disbursement payments, Elite batch GJ1675749

39 January 10,2011 Dewey & LeBoeuf LLP Reclassifying disbursement payments, Elite batch GJ1675756

40 January 10, 2011 Dewey & LeBoeuf LLP Reclassifying disbursement payments, EEte batch GJ1675766

41 January 10,2011 Dewey & LeBoeuf LLP Reclassifying disbursement payments, EEte batch GT1675772

2

Falsifying Business Records Counts DisclosuresPeople v. Davis. DiCarmine. Sanders, and Warren. Ind. 773/2014 and

People v. Warren, (Ind. 5393/2013)Count

Ind. 773/2014(Ind.

5393/2013)

Date or Range (on or around) from Ind. 773/2014 (Ind.

5393/2013)Enterprise Disclosure

42 January 10, 2011 Dewey & LeBoeuf LLP Reclassifying disbursement payments, Elite batch GT1675773

43 January 10, 2011 Dewey & LeBoeuf LLP Reclassifying disbursement payments, Elite batch GT1675782

44 January 14, 2011 Dewey & LeBoeuf LLP Reclassifying payments as return of capital, Elite batch BN12312010M

45 February 14,2011 Dewey & LeBoeuf LLP Reclassifying payments to defendant Davis as return of capital, Elite batch DR12312010R

46 December 30,2010 Dewey & LeBoeuf LLP Reclassifying bonus payments, Elite batch VH12302010NY

47 February 2,2011 Dewey & LeBoeuf LLP Reclassifying foreign payroll, Elite batch MD02022011NY

48 February 10, 2011 Dewey & LeBoeuf LLP United Kingdom tax refund, Elite batch AC123110LO

49 November 15, 2010 Dewey & LeBoeuf LLP Reversing credit card write-offs, Elite batch GJ1604528

50 January 11,2011 Dewey & LeBoeuf LLP Applying partner capital as fee revenue, Elite batch GT1676215

51 Match 31,2011 to April 5, 2011 Dewey & LeBoeuf LLP Invoice #57658552 March 31, 2011 to April 5, 2011 Dewey & LeBoeuf LLP Invoice #58153053 March 31, 2011 to ApriL 5, 2011 Dewey & LeBoeuf LLP Invoice #58707254 March 31, 2011 to April 5, 2011 Dewey & LeBoeuf LLP Invoice #56395755 March 31, 2011 to April 5,2011 Dewey & LeBoeuf LLP Invoice #61814056 March 31,2011 to April 5, 2011 Dewey & LeBoeuf LLP Invoice #200841957 March 31, 2011 to April 5,2011 Dewey & LeBoeuf LLP Invoice #61813158 March 31,2011 to April 5,2011 Dewey & LeBoeuf LLP Invoice #618134

3

Falsifying Business Records Counts DisclosuresPeople v. Davis. DiCarmine. Sanders, and Warren.. Ind. 773/2014 and

People v. Warren. (Ind. 5393/2013)Count

Ind. f73/2014 (Ind.

5393/2013),

Date ox Range (on ox around) from Ind. 773/2014 (Ind.

5393/2013)Enterprise Disclosure

59 March 31,2011 to April 5,2011 Dewey & LeBoeuf LLP Invoice #61811560 March 31,2011 to April 5,2011 Dewey & LeBoeuf LLP Invoice #61813261 March 31, 2011 to April 5,2011 Dewey & LeBoeuf LLP Invoice #61812962 November 8,2011 Dewey & LeBoeuf LLP Reversing disbursement write-offs for

account 6305, Elite batch GJ2055340

63 January 10, 2012 Dewey & LeBoeuf LLP Reversing disbursement write-offs for account 6305, Elite batch GJ2135208

64 January 10, 2012 Dewey & LeBoeuf LLP Reversing disbursement write-offs for account 6300, Elite batch GJ2135788

65 January 10, 2012 Dewey & LeBoeuf LLP Reversing disbursement write-offs for account 6300, Elite batch GJ2135874

66 January 10,2012 Dewey & LeBoeuf LLP Reclassifying disbursement payments, Elite batch GJ2135854

67 January 10,2012 Dewey & LeBoeuf LLP Reclassifying disbursement payments, Elite batch GT2135871

68 December 28, 2011 Dewey & LeBoeuf LLP Reclassifying payments as return of capital, Elite batch BN12282011

69 January 5,2012 Dewey & LeBoeuf LLP Reversing credit card write-offs, Elite batch GJ2131274

70 January 17,2012 Dewey & LeBoeuf LLP Reclassifying foreign payroll, Elite batch VH01172012

71 December 2011 to January 2012 Dewey & LeBoeuf LLP Applying loan repayments as revenue, Elite batch MDYE1211A

72 June 25, 2009 Ernst & Young LLP Management representations letter73 June 18, 2010 Emst & Young LLP Management representations letter74 June 28, 2011 Emst & Young LLP Management representations letter

4

Falsifying Business Records Counts DisclosuresPeople v. Davis, DiCarmine. Sanders, and Warren. Ind. 773/2014 and

People v. Warren. (Ind. 5393/2013)Count

Ind. 773/2(114 (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 statements76 June 18, 2010 Dewey & LeBoeuf LLP Audited 2009 financial statements77 June 28, 2011 Dewey & LeBoeuf LLP Audited 2010 financial statements78 February 17, 2009 JPMorgan Chase Bank, NA. Year-end 2008 compliance certificate79 February .19, 2010 JPMorgan Chase Bank, NA. Year-end 2009 compliance certificate80 February 14, 2011 JPMorgan Chase Bank, NA. Year-end 2010 compliance certificate81 February 14, 2012 JPMorgan Chase Bank, N A. Year-end 2011 compliance certificate82 February 17,2009 Citibank, N.A. Year-end 2008 compliance certificate83 February 19, 2010 Citibank, N A. Year-end 2009 compliance certificate84 February 14, 2011 - Citibank, N.A. Year-end 2010 compliance certificate85 February 14, 2012 Citibank, N.A. Year7end2011 compliance certificate86 February 17,2009 Barclays Bank PLC Year-end 2008 compliance certificate87 February 19, 2010 Barclays Bank PLC Year-end 2009 compliance certificate88 February 17, 2009 Wells Fargo Bank, NA. Year-end 2008 compliance certificate89 February 19, 2010 Wells Fargo Bank, NA. Year-end 2009 compliance certificate90 February 14, 2011 Bank of America, NA. Year-end 2010 compliance certificate91 February 14, 2012 Bank of America, NA. Year-end 2011 compliance certificate92 February 14,2012 HSBC Bank USA, National

Association Year-end 2011 compliance certificate

93 February 14,2011 AllianceBemstein LP Year-end 2010 compliance certificate94 February 14, 2012 AlIknceBemstein LP Year-end 2011 compliance certificate95 February 14, 20.11 Hartford Investment Management

Company Year-end 2010 compliance certificate

96 February 14,2012 Hartford Investment Management Company Year-end 2011 compliance certificate

5

Falsifying Business Records Counts DisclosuresPeople v. Davis. DiCarmine, Sanders, and Warren. Ind. 773/2014 and

People y. Warren, (Ind. 5393/2013)Count

Ind. 773/2014 (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 certificate100 February 14, 20.12 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

- General Journal Header• ---------------------------------------------------------------------- — ------------ —— ..........

Entry ID: [EL. J75S6 Model Entry ID: I

Batch ID: (GJ7434B4 Transaction Date: | l 2 /31 /200B

6 1 Type ” 3 r Automatic Reversal

Currency | ^ i r | ' i u i t V . i 1 , ' - 1 Currency Date: |07 /10 /2008

Repi:ftir>o Currency. j ' " t~ | S p d 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 Date101 101 01 1211 000 00000 OOOOQOO Unbilled Costs j 220.30 0 7 /1 0 /2008

___2 _ i m 101 01 1211 000 00000 OOOOOCH Unbilled Costs 220.30 0 7 /1 0 /20083 101 101 01 1211 000 00000 0000000 Unbilled Costs 308,738.48 12 /0 5 /2 0 0 8

- 4 101 101 01 1571 ,000 00000 ooooaon Intercompany 30 ,9 79.12 '12 /05 /20085 101 101 01 1576 000 00000 coaoooa Intercompany 7.12 0 8 /3 1 /2 0 0 8€ 101 101 01 1589 000 ooooo cooaooa Intercompany 113,95EB9 1 2 /0 5 /2 0 0 87 101 101 01 15B9 000 00000 OOOOOOO Intercompany 157 .80247 1 2 /0 5 /2 0 0 88 101 101 01 1590 ,000 ooooo 0000000 Intercompany 220.30 07 /1 0 /2 0 0 8

__9 _ 101 101 01 1590 000 00000 OOOOOHJ Intercompany 22CL30.0 7 /1 0 /2 0 0 810 101 101 30 1211 000 ooooo 0000000 Unbilled Costs 7.12 0 8 /3 1 /200811 202 ■215 15 1570 ’coo ooooo 0000000 Intercompany 30.97B.1Z; 1 2 /0 5 /2 0 0 812 202 ■215 15 53G0 007 ooooo 0000000 Costs Written Down 30,979.12; 1 2 /0 5 /2 0 0 813 203 :2S1 r 61 1211 ooo ooooo 4181000 Unbilled Costs 2 4 0 .1 0 /1 5 /2 0 0 814 203 261 61 1211 ooo ooooo 4181000 Unbilled Costs 1 .70 1 0 /3 1 /2 0 0 815 203 261 61 1570 'ooo ooooo 4510010 Intercompany 7 .1 2 '0 6 /3 1 /2 0 0 816 203 261 61 6300 ,007 ooooo 6298100 Costs Written Down 2 4 0 !1 0 /1 5 /200817 203 ;2S1 .61 ■6300 007 00900 :6268100 Cosls Written Down 1.70 ; 10 /3 1 /200818 203 :261 61 '6300 ooooo ^6288100 Costs Written Down 7.12 0 6 /3 1 /2 0 0 819 207 :271 ■22 :G300 ■012 ooooo 0000000 Costs Written Down 44,311.16112/05/200820 207 1271 ■23 ■1570 b o o ' ooooo 0000000 Intercompany 119,956.83 ,1 2 /0 5 /2 0 0 821 207 ■271 :23 .5300 012 ‘ ooooo ooooooo Costs Written Down 55,365.31j l 2 /0 5 /2 0 0 822 207 ■271 23 ’6300 ;067 ' ooooo 0000000 Costs Written Down 20,280.40:12 /05 /2008

23 208 ■200 :2 4 '1 2 1 1 :ooo ooooo ,0000000 Unbilled Costs 7.60 !0 5 /2 0 /200824 208 280 ; '24 ’1570 ■ 000 ooooo 0000000 Intercompany 157,00247" ■12/05/200825 208 : 280 :24 ;6300 050 ’ ooooo !0000000 Costs Written Down 7 .6 0 :05 /28 /2 00826 208 ;280 ■24.. 5300 055 ooooo ■ooooooo Costs Written Down 157,80247; 1 2 /0 5 /2 0 0 827 209 :290 04 1211 jOOO ■ooooo i0000000 T rarrsactiort 270 0.85 i 1 2 /1 7 /2 0 0 828 209 230 |;04 -1211 - j m ’ ooooo 1ooooooo Transaction 270 0.85; 1 2 /1 7 /2 0 0 829 209 •290 '; 04 1211 |b00 ooooo ■ ooooooo Unbilled Costs 5 .5 2 :10 /06 /2 00830 209 '290 04 .1211 ;ooo ooooo J 0030000 Unbilled Costs 39.5 9 j11 /d 3 /200831 209 '2 90 04 i1211 ;ood ooooo !ooooooo Unbilled Costs 47.8 3 :11 /10 /200832 209 ;230 ,04 ’1211 ,000 ooooo ;i ooooooo Unbilled Costs 40 .8 8 [11 /13 /200833 209 j 230 > i1211 ;000 ooooo ,[0000000 Unbilled Costs 40.37j 1 1 /1 0 /200834 209 :290 ■04 i l 211 • OOO j ooooo jboooooo Unbilled Costs ^ .4 5 ;1 1 /1 9 /2 0 0 835 209 '2 30 ;:04 H 211 io o o . ooooo jooooooo Unbilled Costs 0.21 j 1 1 /2 0 /200836 203 i 290 :;04 i l 211 jboo ’ bodoo ■[0000000 Unbilled Costs 0.75 j 1 1 /2 4 /200837 209 '290 !j04 ■1211 :ooo ooooo |i ooooooo Unbilled Costs 3 .4 6 :11 /25 /2 00838 209 ;290 ; .04 •1211 • :boo i ooooo :: ooooooo Unbilled Costs "39.86; 1 2 /0 1 /200839 203 230 ,:04 : 1211 ijooo j ooooo ooooooo Unbilled Costs 35.3 3 :12 /05 /2008

*40 209 1230 1104 11211 ' icxro i ooooo ; <0000000 Unbilled Costs a 6 5 ]1 2 /1 7 /2 0 0 841

< 1209 1290 :: 04 : 1211 : 1030 liODOOO H 0000000' U n b ie d Costs ..........."adoTi 2 /1 d /zoo s"

NYDA-0D00001

Account Company lLocation iPrimary ID epartm ent Timekeeper Local Local Narrative Consolidation Narrative Empl101 101 1 1211 0 0 0 Unbilled Costs Unbilled Costs101 101 1 1211 0 0 0 Unbilled Costs Unbilled Costs101 101 1 1211 0 0 0 Unbilled Costs Unbilled Costs101 101 1 1571 0 0 0 Intercompany Intercompany101 101 1 1576 0 0 0 Intercompany Intercompany101 101 1 1588 0 0 0 Intercompany intercom pany101 101 1 1589 0 0 0 Intercompany Intercompany101 101 1 1590 0 0 0 Intercompany Intercompany

101 101 1 1590 0 0 0 Intercompany Intercompany101 101 30 1211 0 0 0 Unbilled Costs Unbilled Costs202 215 15 1570 0 0 0 Intercompany Intercompany

202 215 15 6300 7 0 0 Costs W ritten Down Costs W ritten Down203 261 61 1211 0 0 4181000 Unbilled Costs Unbilled Costs203 261 61 1211 0 0 4181000 Unbilled Costs Unbilled Costs203 261 61 1570 0 0 4510010 Intercompany Intercompany203 261 61 6300 7 0 6288100 Costs W ritten Down Costs W ritten Down203 261 51 6300 7 0 6288100 Costs W ritten Down Costs W ritten Down203 261 61 6300 30 0 6288100 Costs W ritten Down Costs W ritten Down207 271 22 6300 12 0 0 Costs W ritten Down Costs W ritten Down207 271 23 1570 0 0 0 Intercompany Intercompany207 271 23 6300 12 0 0 Costs W ritten Down Costs W ritten Down

207 271 23 6300 67 0 ^ 0 Costs W ritten Down Costs W ritten Down208 280 24 1211 0 0 0 Unbilled Costs Unbilled Costs208 280 24 1570 0 0 0 Intercompany Intercompany208 280 24 6300 50 0 0 Costs W ritten Down Costs W ritten Down

208 280 24 6300 55 . 0 0 Costs W ritten Down Costs W ritten Dgwn209 290 4 1211 0 0 0 Transaction 270 Transaction 270209 290 4 1211 0 0 0 Transaction 270 Transaction 270209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs

209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs

209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs “209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs

209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs

209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs

209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs209 290 4 1231 0 a 0 Unbilled Costs Unbilled Costs209 290 4 1211 0 0 0 Unbilled Casts Unbilled Costs209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs

209 290 4 1570 0 0 0 Intercompany intercom pany209 290 4 1570 0 0 0 Intercompany Intercompany

209 290 4 6300 3 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 3 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 3 0 0 Costs W ritten Down Costs W ritten Dov/n

209 290 4 6300 3 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 3 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 3 0 0 Costs W ritten Down Costs W ritten Down

Debit220.30

308,738.48

7.12

220.30

30,979.12

2.401.707.12

119,956.89

7.60157,802.47

0.85

220.30

220.30

40.883.383.46

39.86

Credit Debit Hold Credit Hold Additional Desc Currency Date220.30 7/10/2008

220.30308,738.48

220.30 7 /10/200812/5/2008

30,979,127.12

30,979.12 12/5/20088/31/2008

119,956,89 119,956,89 12/5/2008157,802.47

220.30157,802.47 12/5/2008

7/10/2008220.30 220.30 7/10/2008

7.1230,979.12

7.12 8/31/200812/5/2008

30,979.12 30,979.12 12/5/20082.40 2.40 10/15/20081.70 1.70 10/31/20087,12

2.401.707.12

7.12 8/31/200810/15/200810/31/2008

8/31/200844,311.18

119,956 8944,311.18 12/5/2008

12/5/200855,365.31 55,365.31 12/5/200820,280.40

7.60157,802.47

20,280.40 12/S/20085/28/200812/5/2008

7.60 7.60 5/28/2008157,802.47

0.85157,802.47 12/5/2008

12/17/20080.85 0.85 12/17/20085.52 5.52 10/6/2008

39.59 39.59 11/3/200847.83 47.83 11/10/2008

40.88 \\ 40.88 11/13/2008

40.37 40.37 11/18/200838.45 38.45 11/19/2008

&21 8.21 11/20/20088.75 8.75 11/24/20083.46 3.46 11/25/2008

39.86 39.86 12/1/700835.39 35.39 12/5/2008

0.85 O.SS - 12/17/20089.00

220.309.00 12/18/2008

7/10/2008220.30

220.30220.30 7/10/2008

7/10/2008220.30

40.883.383.46

39.86

220.30 7/10/200811/13/200811/24/200811/25/2008

12/1/2008

NYDA-0000002

209 290 4 6300 3 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 9 0 0 Costs W ritten Down Costs W ritten Down

209 290 4 6300 9 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 9 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 9 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 9 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 9 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 9 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 9 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 12 0 0 Costs W ritten Down Costs W ritten Down205 290 4 7035 0 0 0 Soft Cost Recovery Soft Cost Recovery209 290 4 7035 0 0 0 Soft Cost Recovery Soft Cost Recovery

33.39 35.39 12/5/20085.52 5252 10/5/2008

39.59 39.59 11/3/200847.83 47.83 11/10/20083B.45 38.45 11/19/2008

8.21 8.21 11/20/20085.37 5.37 11/24/20080.85 0.85 12/17/20089.00 9.00 12/18/2008

40.37 40.37 11/18/20080.85 0.85 12/17/2008

0.85 0.85 12/17/2008

NYDA-0000003

- General Journal H e a d e r ----------------------------------------------------------------------------------------------------EntoilD: |E L b . .,J75E0 M odriEntiylD:. I

B alch lD r Ig J7434B4 Transaction Dale: [12/3172008

SlljpBc IlglSgiliaglBliillilstSiiifia T I 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 Date1 101 101 01 1211 000 00000 0000000 Unbilled Costs 14.12 03703/20082 101 101 01 1211 000 00000 0000000 Unbilled Costs 47.102.07 12705/20083 101 101 01 1572 000 00000 0000000 Intercompany 14.12 03703/20084 101 101 01 1572 000 00000 0000000 Intercompany 27.348.56 1 2705/20085 101 101 ■01 6300 070 00000 0000000 Costs Written Down 13.753.51 12705/20385 201 241 00 ^2000 ■ooo 00000 0000000 Gient Cost Clearing 21.40 11724/20387 201 241 00 2000 ■ooo 00000 OOOOOQG OierS Corf Clearing 30.78 11730/2008B 201 241 00 .2000 000 00000 ooooooo Client Corf Clearing 4.00 12/1 '1/20089 201 241 00 2000 000 00000 ooooooo OierA Corf Gearing 30.08 1 2 /17 /200810 201 241 00 .2000 000 ooooo ooooooo Client Corf Gearing 31.72 1 2730/203811 201 241 00 ,2000 000 00000 ooooooo Client Corf Clearing 61.43 12731/200312 201 241 41 1211 000 ooooo ooooooo Unbilled Costs ,21 .4 0 11724/200313 201 241 41 1211 •ooo 00000 ooooooo Unbilled Costs 30.78 1 1 /3 0 /701314 201 241 .41 1211 000 ooooo ooooooo Unbilled Costs 4.00 12711/200815 201 241 41 1211 000 ooooo ooooooo Unbilled Costs 30.08 1 2 /1 7 /20081$. 201 241 41 1211 000 ooooo ooooooo U nbilled Costs 31.72 1 2 /3 0 /200817 201 241 41 1211 000 ooooo ooooooo U nble d Costs 61.43 12/3 1 /200818 201 241 .41 1211 000 ooooo ooooooo Unbilled Costs 3 6 2 5 3 01731/200819 201 241 ,41 1211 000 ooooo ooooooo Unbiled Costs 45.00 03710/2003?n 201 241 .41 1211 000 ooooo ooooooo Unbilled Costs 20.57 0 4 /1 0 /2009?1 ?m 241 41 1211 000 ooooo ooooooo Unbilled Costs 25.00 04723/200972 201 241 ;41 1211 000 ooooo ooooooo Unbilled Costs 7 1 .6 0 ^ 4 /3 0 /2 0 0 873 201 ■241 41 1211 ■ooo ooooo ■ ooooooo Unbilled Costs 3O.77'10/21 /20O824 201 ■241 ,41 1570 000 ooooo •ooooooo Intercompany 14.12} 03 /0 3 /200025 201 241 .41 1570 000 00000 DODODOO Intercompany 27,349.56,' 1 2 /0 5 /200828 201 241 ;41 $300 030 ooooo ■: OOOOOOO Costs Written Down eea.53 ■01/31/200927 201 ■241 .41 ;6300 030 ooooo 5ooooooo Costs Written Oown 14.12. 03 /0 3 /200828 201 241 41 {6300 030 ooooo :ooooooo Costs Written Down 45.00: 0 3 /1 0 /200829 201 ■241 .41 i 6300 -.030 ooooo [OOOOOOO Costs Written Down 20.57: 0 4 /1 0 /200830 201 241 : 41 [6300 ■030 00000 ■ ooooooo Costs Written Down 25.00: 0 4 /2 3 /200831 201 241 .41 ’$300 ■‘ 030 ooooo ■ooooooo Costs Written Down 71.681 04730/20003? 201 !241 .41 ;G300 ■:o3o ooooo :OOOOOOO Costs Written Down ' 30.77- 10 / 21 /200033 201 ; 241 .41 ,6300 : ;030 ooooo :0000000 Costs Written Down 27.348.56 12 /05/200B

< l ........................................................... .......... - ...................................................N Y D A -0000004

EnliylD: [ELB /5 7 0 Mode! Entry ID: [

Batch ID: |GJ7434B4 Transaction Date: | l2 /3 V 2 0 o i

S l Type: ^ I T Automatic R e p e a l

Cu iie t iw . * 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 Dal1 101 101 00 2000 000 00000 0000000 Client Cost Clearing 409.42 12/1 1 /20082 101 101 00 2000 000 00000 0000000 Client Cosl Dearing 409.42 1 2 /1 1 /20083 101 101 01 1211 000 ooooo 0000000 Soft Cost Recovery 40.00 12/28/1998T ” 101 101 01 1211 000 GOOOQ 0000000 Soft Cost Recovery 40.00 12 /2 8 /19985 101 101 01 1211 000 00000 0000000 Soft Cost Recovery 29.95 12/3 1 /19986 101 101 01 1211 000 00000 0000000 Soft Cost Recovery 29,95 1 2 '3 1 719987 101 101 01 1211 • 000 00000 0000000 Soft Cost Recovery 15.30 •12 /30 /1399B 101 101 01 1211 000 00000 0000000 Soft Cost Recovery 15.30 1 2 /30 /1999

" f " 101 101 01 1211 ■ 000 00000 0000000 Soft Cost Recovery 50.00 01/31 /200710 101 101 01 1211 000 00000 0000000 Soft Cost Recovery 50.00.01/31 /200711 101 101 01 1211 •000 00000 0000000' T ran section 270 1.30 h 2/217199812 101 101 01 1211 000 ■00000 0000000 T ransaction 270 1.30 12 /21 /199813 101 101 01 ■1211 " 0 0 0 00000 0000000 Transaction 270 -1 .34 '12714/199914 . 101 101 01 1211 000 00000 0000000 T ransaction 270 1.34 -12714/139915 101 101 01 1211 ’ 000 ■00000 0000000' Transaction 270 0.98 12/1 6 /199916 101 101 01 1211 •000 00000 0000000' Transaction270 0.9B '12 /1 6 /199917 101 101 01 1211 000 o o o o d .0000000 Transaction 270 0.07 1 2 /2 2 /1 3 3 3

18 , 101 101 01 1211 000 ■00000 0000000 ; T ransaction 270 0 .07 ;12/22 /1 99919 101 101 01 1211 ;0 0 0 : 00000 0000000 |Transaction270 | 52,419.67 ; 12/0 5 /203820 101 101 01 ,1211 ; o o o 00000 0000000 J T ransaction 270 52.419.67 '12 /05 /2038

~ z n 101 101 01 .1211" : - o o d : o o b o o ’ o o o d d d o ' Unbilled Costs 40.00 12/287199822 101 101 01 1211 •000 •00000 ■0000000 1 Unbilled Costs 40.00;12 /2 87 I99823 101 101 01 : 1211 • 0 0 0 100000 : 0000000 ! Unbiled Costs 29.95 112/31/199824 101 ■101 01 1211 ;o o o '00000 ■OOOOODO j Unbiled Costs 29.95 l1 2 /3 1 7199825 101 101 01 : 1211 : 000 [00000 10000000 i Unbilled Costs 15.30 112/30/199926 101 101 01 : i 2i i :;00b •00000 • OOOOODO* 'Unbiled Costs 1 5 3 0 1 2 /3 0 /1 9 9 927 101 101 01 1211 1:000 100000 / 0000000 ;Unbiled Costs ’ ] ” 50.00 ’ 01 /31 /200728 101 •101 01 1211 "000 : 00000 0000000' • Unbilled Costs 5o7od;oi/3V2oo729 101 -101 01 1211' " 0 0 0 '00000 ’ '0000000 • Unbilled Costs ; 409.42 :i2 /1 1 /2 0 0 B30 101 101 •01 ■1211 1 ‘ 000 ,00000 : 0000000 : Unbilled Costs 409.42’ 12/11 /200931 101 ■tot 01 | l 211 :-000 : 00000 '0000000 •Unbilled Costs 0.27 ' 1 2 / Z \ 7 1 9 9 9

32 101 •101 01 1211 ; : 000 j 00000 ■ 0000000 i Unbiled Costs 8.78 '1 2 /28 /19 9833 101 101 01 1211 :: 000 100000 • 0000000 .Unbiled Costs 6.57 ;12/317199834 101 •101 •01 1211 11000 i 00000 ; 0000000' . Unbiled Costs 0.29. . . . . . . . •12 /14 /199935 101 ;101 - i n ',1211 ,:000 >00000 0 0 0 0 0 0 0 ' :Unbiled Costs ................... '1 2 /1 6 /1 S 336 101 •101 '0 1 ; i 2i i ■1000 100000 ; i 000(1)00 •Unbiled Costs 0.01 '1 2 /22 /19 9937 101 •101 01 11211 ::oob V o o d o o : o o o d d d o ' 'Unbilled Costs ..........3.36' ............................112/30/139938 101 101 ■01 •1211 I ! 000 100000 ' i 0000000’ 'Unbilled Costs _ : ...........10.99 : 01/3 1 /200739 101 ■101' 01 j 1 21 i ■| 000 ; 00000 10000000 ’ t Unbiled Costs 137.70110/07/203340 101 101 ;o i 11211 i i 000 00000 1 OOOOODO ! Unbiled Costs 6JT34110/0 8 /2038

' 41 101 101 01 11211 ,>000 ii 00000 10000000' I Unbiled Costs 3 2 6 4 jld /1 3 /2 0 0 34

N Y D A -0000005

Account Company Location Primary Departm ent101 301 0 2000 0101 101 0 2000 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0103 101 1 1211 0101 201 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0103 101 1 1211 0101 101 1 1211 0101 101 1 1211 0103 101 1 1211 0101 101 1 1211 0102 101 1 1211 ■ 0101 101 1 1211 0101 101 1 1211 0103 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 ■ 0101 301 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 0101 101 1 1211 ■ 0101 101 1 1211 0

Lora! Narrative Consolidation Narrative0 Client Cost Clearing Client Cost Clearing0 Client Cost Clearing Client Cost Clearing0 Soft Cost Recovery Soft Cost Recovery0 Soft Cost Recovery Soft Cost Reoovery0 Soft Cost Recovery Soft Cost Recovery0 Soft Cost Recovery Soft Cost Recovery0 Soft Cost Recovery Soft Cost Recovery0 Soft Cost Recovery Soft Cost Recovery0 Soft Cost Recovery Soft Cost Recovery0 Soft Cost Recovery Soft Cost Recovery0 Transaction 270 Transaction 2700 Transaction 270 Transaction 2700 Transaction 270 Transaction 2700 Transaction 270 Transaction 2700 Transaction 270 Transaction 2700 Transaction 270 Transaction 2700 Transaction 270 Transaction 2700 Transaction 270 Transaction 2700 Transaction 270 Transaction 2700 Transaction 270 Transaction 2700 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs „ '0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Casts0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs0 Unbilled Costs Unbilled Costs

TimekeeperD0000000000

- 00o0000000

. o00000000000000

■ t)00000000000

■ 00

Em ployee D eb it C redit D ebit H old C redit Hold A dditional D esc C urrency Date

409.42 409.42 12/11/2008409.42 409.42 12/11/2008

40 40 12/28/199840 40 12/28/1998

29 95 2935 12/31/199829.95 29.95 12/31/1998

15.3 1S.3 12/30/199915.3 15 3 12/30/1999

50 SO 1/31/200750 50 1/31/2007

1.3 1.3 12/21/19981.3 1 3 12/21/1998

134 1.34 12/14/19991.34 1.34 12/14/1999

0 98 0 3 8 12/16/19990.98 0 3 8 12/16/1999

. 0.07 0.07 12/22/19990.07 0.07 12/22/1999

52,419.67 52,419.67 12/5/200852,419.67 52,419.67 12/5/2008

40 40 12/28/199840 40 12/28/1998

■ 29.95 2935 12/31/199829.95 2935 12/31/1998

15.3 15.3 12/30/199915.3 15 3 12/30/1999

50 50 1/31/200750 50 1/31/2007

409.42 409.42 12/11/2008409.42 409.42 12/11/2008

0.27 0.27 12/21/19988.78 8.78, 12/28/19986.57 6.57 X 12/31/19380.29 0.29 12/14/1999

0.2 0.2 12/16/19990.01 0.01 12/22/19993.36 3 3 5 12/30/1999

10.99 10.99 1/31/2007137.7 137.7 -10/7/200868.34 68.34 10/8/200832.64 32.64 10/13/200832.64 32.64 10/22/2008

381,407.45 3,381,407.45 12/5/20088.24 8.24 12/35/2008

24.73 24.73 12/16/20084.11 4.11 12/18/20084.12 4.12 12/19/2008

14.76 14.76 12/22/20089Z34 92.34 12/22/2008

9.44 9.44 12/23/2008

NYDA-0000006

101 101 1 1211 0 0 0 Unbilled Costs Unbilled Costs101 101 1 1572 0 0 0 Intercompany Intercompany101 101 1 1573 0 0 0 Intercompany Intercompany101 101 1 6300 4 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 7 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 7 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 7 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 7 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 7 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 7 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 7 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 S 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 9 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 12 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 12 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 12 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 ■ 12 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 12 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 12 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 12 0 0 Costs W ritten Down Costs W ritten Down101 103 1 6300 12 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 12 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 . 12 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 12 0 0 Costs W ritten Down Costs W ritten Down101 103 1 6300 12 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 12 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 ■ 12 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 12 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 21 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 30 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 62 0 0 Costs W ritten Down Costs W ritten Down101 101 1 6300 67 0 0 Costs W ritten Down Costs W ritten Down

101 101 1 6300 70 0 0 Costs W ritten Down Costs W ritten Down101 101 1 7020 0 0 0 Soft Cost Recovery Soft Cost Recovery101 103 1 7020 0 0 0 Soft Cost Recovery Soft Cost Recovery101 101 1 7020 0 0 0 Soft Cost Recovery Soft Cost Recovery101 101 1 7020 0 0 0 Soft Cost Recovery Soft Cost Recovery101 101 1 7020 0 -0 0 Soft Cost Recovery Soft Cost Recovery101 101 1 7020 0 0 0 Soft Cost Recovery Soft Cost Recovery101 101 1 7020 0 0 0 Soft Cost Recovery Soft Cost Recovery101 101 1 7020 0 0 0 Soft Cost Recovery Soft Cost Recovery101 101 1 7035 0 0 0 Soft Cbst Recovery Soft Cost Recovery101 101 1 7035 0 0 0 Soft Cost Recovery Soft Cost Recovery101 101 5 6300 G5 0 0 Costs W ritten Down Costs W ritten Down101 101 12 6300 8 0 0 Costs W ritten Down Costs W ritten Down101 101 18 6300 4 0 0 Costs W ritten Down Costs W ritten Down101 101 18 6300 22 0 0 Costs W ritten Down Costs W ritten Down101 101 18 6300 30 0 0 Costs W ritten Down Costs Written Down101 101 45 6300 30 0 0 Costs W ritten Down Costs W ritten Down101 101 85 6300 22 0 0 Costs W ritten Dawn Costs W ritten Down101 101 90 1211 0 0 0 Unbilled Costs Unbilled Costs

137.76834 33 64 3264

923455.5

13

134

098

0.07

52,419.67

55.S 55.5 12/29/2008173,977.84 173,977.84 12/5/2008

39,368.13 39,368.13 12/5/2008114,293.65 114,293.65 12/5/2008

137.7 10/7/200868.34 10/8/20083264 10/13/20083264 10/22/2008

420,837.52 420,837.52 12/5/20089 2 3 4 12/22/2008

55.5 12/29/2008213,130.43 213,130.43 12/5/2008162,209.12 162,209.12 12/5/2008

0.27 0.27 32/21/19938.78 8.78 12/28/19956 57 6 5 7 12/31/19980.29 0.29 12/14/1999

0.2 0 2 12/16/19990.01 0.01 12/22/19993.36 3.36 12/30/1999

10.99 10.99 1/31/2007139,337.76 139,337.76 12/5/2008

8.24 8.24 12/15/200824.73 24.73 12/16/20084.11 4.11 12/18/20084.12 4.12 12/19/2008

14.76 14.76 12/22/20089.44 9.44 12/23/2008

38,195.10 38,195.10 12/5/2008663,959.34 663,959.34 12/5/2008

28551-59 28,551.59 12/5/2008217,235.02 217,235.02 12/5/2008195,200.07 \ 395,200.07 12/5/2008

1.3n 12/21/19981.3 1 3 12/21/1998

1.34 12/14/19991.34 1.34 12/14/1999

0.98 12/16/19990.98 0.98 12/16/1999

0.07 -12/22/19990.07 0.07 12/22/1999

52419.67 12/5/200852,419.67 52,419.67 12/5/200828,402.63 28,402.63 12/5/200847,429.36 47,429.36 12/5/200832578.61 32578.61 12/5/2008

133,115.31 133,115.31 12/5/2008138505.44 138505.44 12/5/2008

48567.77 48567 .77 12/5/2008159581.69 159,981.69 12/5/2008

6 6 12/31/2008

NYDA-0000007

101 101 90 6300 30 0 0 Costs W ritten Down Costs W ritten Down101 101 90 6300 30 0 0 Costs W ritten Down Costs W ritten Down101 101 90 6300 55 0 0 Costs W ritten Down Costs W ritten Down201 241 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 G 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 0 0 ^ 0 Unbilled Costs Unbilfed Costs201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 . 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 ,, , 0 ^ ; , 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs _201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1211 0 0 0 Unbilled Costs Unbilled Costs201 241 41 1570 0 0 0 Intercompany Intercompany201 241 41 1573 0 0 0 Intercompany Intercompany201 241 41 1573 0 ■o 0 Intercompany Intercompany201 241 41 1573 0 0 0 Intercompany Intercompany201 241 41 1575 0 0 0 Intercompany Intercompany201 241 41 1575 0 0 0 Intercompany Intercompany201 241 41 6300 7 0 0 Costs W ritten Down Costs W ritten Down201 241 41 6300 12 0 0 Costs W ritten Down Costs W ritten Down201 241 41 6300 12 0 0 Costs W ritten Down Costs W ritten Down201 241 41 6300 12 0 0 Costs W ritten Down Costs W ritten Down201 241 41 6300 12 0 0 Costs W ritten Down Costs W ritten Down201 241 41 6300 ' 12 0 0 Costs W ritten Down Costs W ritten Down201 241 ' 41 6300 12 0 0 Costs W ritten Down Costs W ritten Down201 241 41 6300 12 0 0 Costs W ritten Down Costs W ritten Down201 241 41 6300 12 0 0 Costs W ritten Down Costs W ritten Down201 241 41 6300 12 0 0 Costs W ritten Down Costs W ritten Down

295,888.88 295,888.88 12/5/20086 5 12/31/2008

90,642.19 90,642.19 12/5/20083188 31.88 11/24/200846.72 46.72 11/30/2008

2,172.71 2,172.71 12/5/20082,172.71 2,172.71 12/5/2008

945 22 945.22 12/10/2008945.22 945.22 12/10/2008

273 31 273.31 12/11/2008267.38 267.38 12/11/2008

79.45 79.45 12/17/200834.12 34.12 12/17/200S

134.05 134.05 12/30/200887.88 87.88 12/30/2008

1,435.89 1,435.89 12/31/20081345.82 1,345.82 12/31/2008

3188 318 8 11/24/200846.72 46.72 11/30/2008

2,172.71 2,172.71 12/5/20082,172.71 2,172.71 12/5/2008

945 22 945.22 12/10/2008945.22 945.22 12/10/2008

267 38 267.38 12/11/2008273.31 273.31 12/11/2008

34.12 34.12 12/17/200879.45 79.45 12/17/2008

87 88 87.83 12/30/2008134.05 134.05 12/30/2008

1,345.82 1,345.82 12/31/20081,435.89 1,435.89 12/31/2008

23.18 23.18 12/22/200847.47 \ 47.47 12/29/200831.18 V 311 8 12/30/2008206.9 ' 206 9 12/31/2008

^3,977.84 173,977.84 12/5/200843.23 43.23 12/4/200823.22 23.22 12/17/200820.57 20.57 12/19/2008

13132 131.32 -12/8/200813.93 13.93 12/15/2008

50,328.22 50,328.22 12/5/200843 23 43.23 12/4/2008

57,158.22 57,158.22 12/5/2008131 32 131.32 12/8/2008

13 93 13.93 12/15/200823 22 23.22 12/17/200820.57 20.57 12/19/200823.18 23.18 12/22/2008

46 46 12/29/20083118 31.18 12/30/2008

NYDA-0000008

201 241 41 6300 12 0 0 Costs W ritten Down Costs W ritten Down201 241 41 6300 22 0 0 Costs W ritten Down Costs W ritten Down201 241 41 6300 30 0 0 Costs W ritten Down Costs W ritten Down203 261 61 1211 0 0 4181000 Unbilled Costs Unbilled Costs203 261 61 1584 0 0 4510150 Intercompany Intercompany204 250 0 2000 0 0 0 Client Cost Gearing Client Cost Clearing204 250 0 2000 0 0 0 Client Cost Gearing Client Cost Clearing204 250 0 2000 0 0 0 Client Cost Gearing Client Cost Clearing204 250 0 2000 0 0 0 Client Cost Gearing Client Cost Gearing204 250 0 2000 0 0 0 Client Cost Gearing Client Cost Clearing204 250 0 2000 0 0 0 Client Cost Gearing Client Cost Clearing204 250 0 2000 0 0 0 Client Cost Gearing Client Cost Gearing204 250 0 2000 0 0 0 Client Cost Gearing Client Cost Clearing204 250 0 2000 0 0 0 Client Cost Gearing Client Cost Clearing204 250 0 2000 0 0 0 Client Cost Gearing Client Cost Clearing204 250 0 2000 0 0 0 Client Cost Gearing Client Cost Clearing204 250 0 2000 0 0 0 Client Cost Gearing Client Cost Gearing204 250 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing204 250 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing204 250 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing204 250 0 2000 0 0 0 Client Cost Clearing Client Cost Gearing204 250 50 1211 0 0 0 Transaction 270 Transaction 270204 250 50 1211 0 0 0 Transaction 270 Transaction 270204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs

204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 0 0 Unbilled Ccfsts Unbilled Costs204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs _204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 •o 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs

204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1211 0 0 0 Unbilled Costs Unbilled Costs204 250 50 1570 ■ 0 0 0 Intercompany Intercompany204 250 50 1572 0 0 0 Intercompany Intercompany204 250 50 1572 0 0 0 Intercompany Intercompany204 250 50 1572 0 0 0 Intercompany Intercompany204 250 50 6300 12 0 0 Costs W ritten Down Costs W ritten Down204 250 50 7035 0 0 0 Soft Cost Recovery Soft Cost Recovery204 250 50 7035 0 0 0 Soft Cost Recovery Soft Cost Recovery204 252 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing204 252 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing

206.9 206.9 12/31/200866,491.40 66,491.40 12/5/200S

1.47 1.47 12/29/200811.04 11.04 5/31/2008

11.04 11.04 5/31/200S2,695.99 2,695.99 12/3/2008

2,695.99 2,695.99 12/3/2008288 93 288.93 12/4/2008

288.93 288.93 12/4/2008118.09 118.09 12/8/2008

118.09 118.09 12/8/20086,942.65 6,942.65 12/12/2008

6,942.65 5,942.65 12/12/2008160.77 160.77 12/15/2008

160.77 ’ 160.77 12/15/2008328 68 328.68 12/17/2008

328.68 328.68 12/17/200823552 23552 12/19/2008

23552 235.52 12/19/200839 33 39.33 12/30/2008

39.33 39.33 12/30/200828125 281.25 12/29/2008

281.25 281.25 12/29/20082,695.99 2,695.99 12/3/2008

2,695.99 2,695.99 12/3/2O0S288 93 288.93 12/4/2003

288.93 288.93 12/4/2008118.09 118.09 12/8/2008

118.09 118.09 12/8/20086,942.65 6,942.65 12/12/2008

6,942.65 6,942,65 12/12/2008150.77 160.77 12/15/2003

160.77 \ 160.77 12/15/200832868 328.68^ 12/17/2008

328.65 ' 328.68 12/17/200323S52 23552 12/19/2008

23552 23552 12/19/2003■ 39 33 39.33 12/30/2003

39.33 39.33 12/30/200343.23 43.23 -12/4 /200823.22 23.22 12/17/200820.57 20.57 12/19/2003

39368.13 39,368.13 12/5/200843 23 43.23 12/4/200823 22 23.22 12/17/2003203 7 20.57 12/19/2003

39,368.13 39,368.13 12/5/200328125 281.25 12/29/2003

281.25 281.25 12/29/200862 86 62.86 12/8/2008

62.86 62.86 12/8/2008

NYDA-0000009

204 252 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing204 252 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing204 252 0 2000 0 0 0 Client Cost Clearing Client Cost G earing204 252 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing204 252 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing204 252 0 2000 0 0 0 Client Cost Clearing Client Cost G earing204 252 52 1211 0 0 0 Unbilled Costs Unbilled Costs204 252 52 1211 0 0 0 Unbilled Costs Unbilled Costs204 3 2 52 1211 0 0 0 Unbilled Costs Unbilled Costs204 3 2 52 1211 0 0 0 Unbilled Costs Unbilled Costs204 3 2 . 52 1211 0 0 0 Unbilled Costs Unbilled Costs204 3 2 52 1211 0 0 0 Unbilled Costs Unbilled Costs204 3 2 52 1211 0 0 0 Unbilled Costs Unbilled Costs204 3 2 52 1211 0 0 0 Unbilled Costs Unbilled Costs204 3 2 52 1211 0 0 0 Unbilled Costs Unbilled Costs204 3 2 52 1211 0 0 0 Unbilled Costs Unbilled Costs204 3 2 52 1572 0 0 0 intercompany Intercompany204 3 2 52 1572 0 0 0 Intercompany Intercompany209 290 4 1211 0 0 0 Transaction 270 Transaction 270209 290 4 1211 0 0 0 Transaction 270 Transaction 270209 290 4 1211 0 0 0 Transaction 270 Transaction 270209 290 4 1211 0 0 0 Transaction 270 Transaction 270209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs209 290 4 1211 0 o' 0 Unbilled Costs Unbilled Costs209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs209 290 4 1211 0 0 0 Unbilled Costs Unbilled Costs209 290 4 6300 9 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 9 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 9 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 9 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 12 0 0 Costs W ritten Down Costs W ritten Down209 290 4 6300 12 0 0 Costs W ritten Down Costs W ritten Down_209 290 4 7010 0 0 0 Soft Cost Recovery Soft Cost Recovery209 290 4 7010 0 0 0 Soft Cost Recovery Soft Cost Recovery209 290 4 7010 0 0 0 Soft Cost Recovery Soft Cost Recovery209 290 4 7010 0 0 0 Soft Cost Recovery Soft Cost Recovery301 306 0 2000 0 6 0 Client Cost Clearing Client Cost Clearing301 305 0 2000 0 0 0 Client Cost Gearing Client Cost Clearing301 306 6 1211 0 0 0 Unbilled Costs Unbilled Costs301 306 6 1211 0 0 0 Unbilled Costs Unbilled Costs301 309 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing301 309 0 2000 0 0 0 Client Cost Gearing Client Cost Clearing301 309 0 2000 0 0 0 Client Cost Gearing Client Cost Gearing301 309 0 2000 0 0 0 Client Cost Clearing Client Cost Clearing301 309 9 1211 0 0 0 Unbilled Costs Unbilled Costs301 309 9 1211 0 0 0 Unbilled Costs Unbilled Costs301 309 9 1211 0 0 0 Unbilled Costs Unbilled Costs301 309 9 1211 0 0 0 Unbilled Costs Unbilled Costs301 309 9 1211 0 0 0 Unbilled Costs Unbilled Costs301 309 9 1211 0 0 0 Unbilled Costs Unbilled Costs

16.79 16.79 12/12/200816.79 16.79 12/12/2008

112.9 112.9 12/15/2008112.9 112 9 12/15/2008

4.37 4.37 12/19/20084.37 4.37 12/19/2008

62.86 62.86 12/8/200862.86 52.86 12/8/2008

16.79 16.79 12/12/200816.79 16.79 12/12/2008

112.9 112.9 12/15/2008112.9 112 9 12/15/2008

4.37 4.37 12/19/20084.37 4.37 12/19/2008

131.32 131.32 12/8/200813.93 13.93 12/15/2008

13132 13L32 12/8/200813 93 13.93 12/15/20080.76 0.76 12/22/2008

0.76 0.76 12/22/20083S5 3,85 12/30/2008

3.85 3.85 12/30/200814.74 14.74 11/4/200855.04 55.04 11/10/2008

107.66 107.66 11/18/200816.6 16 6 11/25/2008

116.98 116.98 12/23/200855.04 55.04 11/10/200850 85 50.85 11/18/2008

16.6 16.5 11/25/2008116 98 116.98 12/23/2008

14.74 14.74 11/4/200856 81 56.81 11/18/2008

0.76 .0.76 x 12/22/20080.76 ' 0.76 12/22/2008

3 85 3.85 12/30/20083.85 3.85 12/30/2008

30.19 30.19 10/31/200830.19 30.19 10/31/2008

30.19 30.19 1-0/31/200830.19 30.19 10/31/2008

34.84 34.84 11/14/200834.84 34.84 11/14/2008

236.98 236.98 12/10/2008236.98 236.98 12/10/2008

34.84 34.84 11/14/200834.84 34.84 11/14/2008

236.98 236.98 12/10/2008236.98 236.98 12/10/2008

84.73 84.73 10/15/2007109.46 109.46 10/15/2007

I

NYDA-0000010

301 309 9 3584 0 0 0 Intercompany Intercompany301 309 9 1584 0 0 0 Intercompany Intercompany304- 375 75 1211 0 0 0 Unbilled Costs Unbilled Costs304 375 75 1211 0 0 0 Unbilled Costs Unbilled Costs304 375 75 1211 0 0 0 Unbilled Costs Unbilled Costs304 375 75 1211 0 0 0 Unbilled Costs Unbilled Costs304 375 75 1211 0 0 0 Unbilled Costs Unbilled Costs304 375 75 1211 0 0 0 Unbilled Costs Unbilled Costs304 375 75 1576 0 0 0 Intercompany Intercompany304 375 75 1579 0 0 0 Intercompany Intercompany304 375 75 1579 0 0 0 Intercompany Intercompany304 375 75 6300 7 0 0 Costs W ritten Down Costs W ritten Down304 375 75 6300 7 0 0 Costs W ritten Down Costs W ritten Down304 375 75 6300 7 0 0 Costs W ritten Down Costs W ritten Down304 375 75 6300 7 0 0 Costs W ritten Down Costs W ritten Down304 375 75 6300 7 0 0 Costs W ritten Down Costs W ritten Down304 375 75 6300 7 0 0 Costs W ritten Down Costs W ritten Down304 375 75 6300 7 0 0 Costs W ritten Down Costs W ritten Down304 375 75 6300 7 0 0 Costs W ritten Down Costs W ritten Down

304 375 75 6300 7 0 0 Costs W ritten Down Costs W ritten Down

109.4584.73

913.5784.73

3.7136.37

0.10.77

11.04

84.73109.46

109.4684.73

84.73913.57

3.71 36 37 0.1

0.77 3X04

109.4684.73

913.5784.73

3.7136.37

0.10.77

11.04

84.73109.46

109,4684.73

84.73913.57

3.7136.370.1

0.771104

10/15/200710/15/2007

11/1/200711/1/200711/9/2007

11/30/200712/5/20071/23/20085/31/2008

10/15/200710/15/200710/15/200710/15/2007

11/1/7.00711/1/200711/9/2007

11/30/200712/5/20073/23/20085 /31/2008

N Y D A - 0 0 0 0 0 1 1

-B atch Information-----------------------------------------------------------------------------------------------

Batch Number [ 743434

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 | Currency1 337991.000003 Valtonv. Repsol -20.93 International Chamber 01 Commerce GBP2 190437.848836 EL •85.25 Citigroup Global Markets Inc. USD3 000369.000003 WebRnanda! 181.12 HouIhanLokey USD4 040222673558 Caremark aO O U B S A G USD5 779186.694364 Social Issues 0.00 PGE Polska Gtupa Energetyezna S.A EURS 351321,000001 General Corporate •419.1 B Metropolitan Life Insurance CO. USD7 309744.003009 Russian Matters - General 0.00 China National 03 & Gas Exploration & D ev USD9 791397.683146 LurcservGruppe 162,85273 Liirssen Maritime Beteifgungs GmbH iC o . EUR9 304400.000057 Structured Finance Workouts and Restructurings 178,453.52 Ambac Assurance Corporation USD

10 311193.000146 NVProiact Cable 59,716.69 Iberdrola USA Management Corporation USD11 310459.000929 V /e ik Notice 175.600.25 Carter, Jay W . USD12 360031.000034 CfosingWork 162784.60 ' Pereira, John As Trustee USD13 302403.082235 'Henry el a!, v. S t Croix Altmina et al. (Claim No. • 151.013.23 Alcoa (Special) USD14 315213.003001 UBS 114,293.65' Finish Line USD15 314078.000014 LSI Subprime 110,618.08 Fidelity National Information Services USD16 315418.00D001 -Derivative Matters 102919.31 Brocade Communications Systems. Inc. USD17 312178.000002 C M litigation 83,671.27 Arab Bank, pic ■USD18 310170.000425 Investigation 82,970.09 Epic Advisors, LLC ■USD19 315754.000002 Northern Trust Compary 80,695.84 BP Corporation North America, inc. USD20 311935.000001 Claims Against Z F Meritor 76 ,9 2295 Eaton Corporation USD21 303340.003019 CX Rate Ring 74,157.38! Allstate Corporation USD22 302697.003740 ‘Retainer 72819.81 Volta RiverAulhority •USD23 312605.003001 :A!G California Litigation 66,491.40 iRnanciere Phault USD24 030392678427 C!PV 109,88294 :Coiler Capita! USD25 780010.675944 :Palamon-S?gia 56,168.31 Palamon Capital Partners EUR26 779741.681262 Bialetti IPO 43.984.04. Unrcredito Bartca MobHare S .p A EUR27 314704.000001 Litigation Regarding Distribution Rights of Software 40,540.41 .Artificial Solutions GmbH GBP28 311319.000062 State of Connecticut Dispute 55,39250 The Energy Network :USD29 311454.000003 Castlewood Dispute 53,707.54: National Indemnity Co. USD30 314784.000001 Renovation Project 0.00; Duke Farms Foundation :USD31 314874.000001 'Project Monument 52,419.67 i Munich Reinsurance America, Inc. USD •32 070200.662758 'Internationa! Fund II 52,326.1 B ■ General Electric Asset ManagenY !u s d

33 304400.000055 Project Shield 50,496.65 .Ambac Assurance Corporation ''USD ■oL. :V.-\ • •.34 779S10.673758 Sodexho 50,035.55 • Feesers Food Distribution 'USD ; , ^ ; - \ ;R ' ! ; :;- .7 •35 781251.692435 DePuy 49,59233! Medtronic Sofamor Danek, Inc. [USD ».36 315216.000001 Timolhy & Thomas LLC 48,567.77:Viral Genetics, Inc. |USD37 100196.000001 WexTrust 47,909.29: Timothy J. Coleman, as Receiver ;USD38 761198.G8279G CM0S2OO7-C34 47,429.3B:Wachovra Capita! Markets LLC •USD39 304488.000004 .JOST RE LOAN & REORGANISATION -399 7 39.268.75'JostrBruno IEUR40 780518.682203 I Bain Capilal/TeamSystem releveroge 26,135.35! B ah Capital Ltd I'e u r

41 780213.677120 'Investment AG 37,175.75; Deutsche Asset Mgmt Investmentgesellsd, EUR .7;77S/7!7.::n77:;r:::- 1 "~42 314028.000001 Project Thebes 23,939.GB;HSBC jUSD V U-.-j'.:‘ :; 'J .V'. '/L !;-'21 ;V’; --‘m ■ . W-. ■■ ■ . -

43 0701 OS.674117 ;Ametsham T ax 23,749.45. General Electric Company =USD44 030328.679470 'Insulin 23,5CSl1 1 'Novartis Corporation •USD45 310463.000173 j Data Safety Vault 32,415.47,Safety Intelligence Systems .USD46 130377.6605CG I EL 43,610.39;Menill Lynch. Pierce, Fenner & Smith Inc. tUSD47 312916.0001X31 ’Guilherme 43,397.93;Baneo Bradescc S A jUSD ■ .■ . .. . 1 •48 190437.667013 d efen se Profiles 36,046.27; Citigroup Global Markets Inc. [USD49 780936.602627 ILS Tax Advice 34,676.91 .Capmark Fmancial Group Inc. !u s d i;1' J;;;v v '-'-7' 7-: L;; !::.'L’ 7: / .'.'V:1' '"V-j pf50 311550.000001 SRAT Team 24,0IB.84iAngola LNG Proiect ’USD •' V; " : ' - L-1 L' o: v r1* .Jm

<1-

nnA7CWL nnm f!fi ' Wnxj»rnh»r On RTI 1 ("I1 Ma)Jnnat ter- menN Y D A -0000012 \ > r

M a tte r D escription

3 3 7 8 9 X .0 0 0 0 0 3 V aiton v. Repsol

1 9 0 4 3 7 .6 4 8 6 3 6 EL

8 0 3 6 8 .0 0 0 0 0 3 W ebF inancial

4 0 2 2 2 .6 7 3 5 5 6 C arem ark

7 7 9 1 6 6 .6 8 4 3 6 4 Social Issues

3 5 1 3 2 1 .0 0 0 0 0 1 G eneral C o rp o ra te

3 0 9 7 4 4 .0 0 0 0 0 8 Russian M a tte rs -G e n e ra l

7 8 1 3 6 7 .6 8 3 1 4 6 L urssen-G ruppe

3 0 4 4 0 0 .0 0 0 0 5 7 S tru c tu re d Finance W o rk o u ts and R estructurings

3 1 1 1 9 3 .0 0 0 1 4 S NY P ro ject Cable

3 1 0 4 5 9 .0 0 0 9 2 9 W ells N otice

3 6 0 0 3 1 .0 0 0 0 3 4 Closing W ork

3 0 2 4 0 3 .0 8 2 2 9 5 H enry e t al. v. St. Croix A lum ina e t al. (Claim No.

3 1 5 2 1 3 .0 0 0 0 0 1 UBS

3 1 4 0 7 8 .0 0 0 0 1 4 LSI S u b p rim e

3 1 5 4 1 8 .0 0 0 0 0 1 D erivative M a tte rs

3 1 2 1 7 8 .0 0 0 0 0 2 Civil Litigation

3 1 0 1 7 0 .0 0 0 4 2 5 Investigation

3 1 5 7 5 4 .0 0 0 0 0 2 N o rth ern T ru st C om pany

3 1 1 9 3 5 .0 0 0 0 0 1 Claims A gainst ZF M erito r

3 0 3 3 4 0 .0 0 0 0 1 9 CA. R ate Filing

3 0 2 6 9 7 .0 0 0 7 4 0 R eta in er v

3 1 2 6 0 5 .0 0 0 0 0 1 AIG California Litigation

3 0 3 9 2 .6 7 8 4 2 7 C1P V

7 8 0 0 1 0 .6 7 5 9 4 4 P alam on - Sigla

7 7 9 7 4 1 .6 8 1 2 6 2 Bialetti IPO

3 1 4 7 0 4 .0 0 0 0 0 1 Litigation R egarding D istribution Rights o f S o ftw are

3 1 1 3 1 9 .0 0 0 0 6 2 S ta te o f C o n n ecticu t D ispute

3 1 1 4 5 4 .0 0 0 0 0 3 C astlew ood D ispute

3 1 4 7 8 4 .0 0 0 0 0 1 R enovation P roject

3 1 4 8 7 4 .0 0 0 0 0 1 P ro ject M o n u m e n t

7 0 2 0 0 .6 8 2 7 5 8 In te rn a tio n al Fund II

3 0 4 4 0 0 .0 0 0 0 5 5 P ro ject Shield

7 7 9 6 1 0 .6 7 3 7 5 8 S odexho

7 8 1 2 5 1 .6 8 2 4 3 5 DePuy

3 1 5 2 1 6 .0 0 0 0 0 1 T im othy & T hom as LLC

A m ount C lient N am e C urrency

(2 0 .9 3 ) In te rn a tio n a l C h am b er Of C o m m erce GBP

(8 5 .2 5 ) Citigroup G lobal M ark ets Inc. USD

1 8 1 .1 2 H oulihan Lokey USD

- UBS AG USD

- PGE Polska G rupa E nergetyczna S.A EUR

(4 1 9 .1 6 ) M e tro p o litan Life In su ran ce CO. USD

- China N ational Oil & G as Exploration & D e v elo p m en t USD

1 6 2 ,8 5 2 .7 3 Liirssen M aritim e B eteiligungs GmbH & Co. EUR

1 7 8 ,4 5 3 .5 2 A m bac A ssurance C o rp o ra tio n USD

5 9 ,7 1 6 .6 9 Ib erd ro la USA M a n a g em en t C o rp o ratio n USD

1 7 5 ,6 0 0 .2 5 C arter, Jay W. USD

1 6 2 ,7 8 4 .6 0 P ereira, John As T ru stee USD

1 5 1 ,0 1 3 .2 3 Alcoa (S pecial) USD

1 1 4 ,2 9 3 .6 5 Finish Line USD

1 1 0 ,6 1 8 .0 8 Fidelity N ational Inform ation Services USD

1 0 2 ,9 1 9 .3 1 B rocade C o m m u n icatio n s S y stem s, Inc. USD

8 3 ,6 7 1 .2 7 A rab Bank, pic USD

8 2 ,9 7 0 .0 9 Epic A dvisors, LLC USD

8 0 ,6 9 5 .6 4 BP C o rp o ratio n N orth A m erica, Inc. USD

7 6 ,9 2 2 .9 5 Eaton C orporation USD

7 4 ,1 5 7 .3 8 A llstate C orporation USD

7 2 ,8 1 9 .8 1 V olta River A uthority USD

6 6 ,4 9 1 .4 0 Financiere Pinault USD

1 0 9 ,8 8 2 .9 4 Coller Capita! v USD

5 6 ,1 6 8 .3 1 P alam on C apital P artn ers EUR

4 3 ,9 8 4 .0 4 U nicredito B anca M obilareS .p .A . EUR

4 0 ,5 4 0 .4 1 Artificial S olutions GmbH GBP

5 5 ,3 9 2 .5 0 The Energy N etw ork USD

5 3 ,7 0 7 .5 4 N ational In d em n ity Co. USD

- Duke Farm s Foundation USD

5 2 ,4 1 9 .6 7 M unich R einsurance A m erica, Inc. USD

5 2 ,3 2 6 .1 8 G en eral Electric A sset M anagem USD

5 0 ,4 9 6 .6 5 A m bac A ssurance C orporation USD

5 0 ,0 3 5 .5 6 F eesers Food D istribution USD

4 9 ,5 9 2 .3 3 M e d tro n ic S o fam o r D anek, Inc. USD

4 8 ,5 6 7 .7 7 Viral G enetics, Inc. USD

NYDA-0000013

1 0 0 1 9 6 .0 0 0 0 0 1 W exT rust

7 8 1 1 9 8 .6 8 2 7 9 6 CMBS 2 0 0 7 -C 3 4

3 0 4 4 8 8 .0 0 0 0 0 4 JOST RE LOAN & REORGANISATION - 3 9 9 7

7 8 0 5 1 8 .6 8 2 2 0 3 Bain C apital/T eam S ystem re lev erag e

7 8 0 2 1 3 .6 7 7 1 2 0 In v e stm e n t AG

3 1 4 0 2 8 .0 0 0 0 0 1 P roject T h eb es

7 0 1 0 6 .6 7 4 1 1 7 A m ersh am Tax

3 0 3 2 8 .6 7 9 4 7 8 Insulin

3 1 0 4 6 3 .0 0 0 1 7 3 D ata S afety V ault

1 3 0 3 7 7 .6 6 0 5 0 6 EL

3 1 2 9 1 6 .0 0 0 0 0 1 G uilherm e

1 9 0 4 3 7 .6 6 7 0 1 3 D efense Profiles

7 8 0 9 3 6 .6 8 2 6 2 7 ILS Tax Advice

3 1 1 5 5 0 .0 0 0 0 0 1 SRATTeam

3 0 4 7 0 4 .0 0 0 1 0 6 P ro ject N o v em b er

3 1 2 7 3 6 .0 0 0 0 0 4 Class A ctions

3 1 3 9 6 7 .0 0 0 0 0 3 Civil Litigation ;

3 0 7 9 5 8 .0 0 0 0 0 1 Foreign Law Advice - G eneral

3 1 3 2 6 2 .0 0 0 0 0 2 C ongoleum - File No. D J00 105 5

7 8 1 8 2 1 .6 8 5 0 9 9 P ro ject Im pala-S ecurities

3 1 1 9 3 5 .0 0 0 0 0 2 Claim s by H.K. S ystem s re Iow a B eef Packing

3 0 7 9 3 5 .0 0 0 4 2 9 l-PRETs C o rp o ra te

3 1 1 2 1 7 .0 0 0 1 2 1 R o ch este r T ransm ission P ro ject A rbitration

3 0 5 4 2 3 .0 0 0 7 4 2 XXX RHODA LORAND GUARDIANSHIP

3 0 6 0 4 7 .0 0 0 6 0 4 N ew York R egulatory Advice

1 8 0 0 7 4 .6 4 6 3 8 1 G eneral

3 1 3 9 6 4 .0 0 0 0 1 4 A ggrey Texas P roceedings

3 1 4 1 8 4 .0 0 0 0 0 1 R e p resen ta tio n in a m u rd e r case.

7 8 1 7 1 5 .6 8 4 5 7 3 D ance

3 1 4 1 9 4 .0 0 0 0 0 1 M acau

3 1 1 7 9 3 .0 0 0 0 0 2 T uapse

7 8 1 2 5 1 .6 8 2 4 2 3 F asten etix

3 1 2 9 0 2 .0 0 0 0 0 5 TT R esource S tra teg y

3 4 5 8 7 0 .0 0 0 0 1 6 P ro ject W aterfall

7 8 1 5 2 8 .6 8 3 8 8 3 G o v ern an ce

7 7 8 9 0 7 .6 7 7 2 4 9 Petroval D ispute

7 8 0 8 4 4 .6 8 0 8 5 2 Pixar S tock O ption m a tte rs

4 7 ,9 0 9 .2 9 T im othy J. C olem an, as R eceiver USD

4 7 ,4 2 9 .3 6 W achovia C apital M ark ets LLC USD

3 9 ,2 6 8 .7 5 lo s t , Bruno EUR

2 6 ,1 9 6 .3 5 Bain C apital Ltd EUR

3 7 ,1 7 5 .7 5 D eu tsch e A sset M gm t. In v estm en tg esellsch EUR

2 3 ,9 3 9 .6 6 HSBC USD

2 3 ,7 4 9 .4 6 G en eral Electric C om pany USD

2 3 ,5 0 5 .1 1 N ovartis C orporation USD

3 2 ,4 1 5 .4 7 S afe ty In telligence S y stem s USD

4 3 ,6 1 0 .3 9 M errill Lynch, Pierce, F en n er & Sm ith Inc. USD

4 3 ,3 9 7 .9 3 Banco B radesco S.A. USD

3 6 ,8 4 6 .2 7 Citigroup G lobal M ark ets Inc. USD

3 4 ,6 7 6 .9 1 C apm ark Financial G roup Inc. USD

2 4 ,0 0 8 .8 4 A ngola LNG P roject USD

2 3 ,8 3 1 .1 0 Fidelity N ational Financial, Inc. USD

2 3 ,7 9 0 .2 1 C hicago Bridge & Iron C o m pany N.V. (M g m t) USD

2 3 ,7 4 8 .3 3 Fran sab an k USD

3 3 ,1 4 9 .3 8 JSC VTB Bank USD

3 2 ,5 7 8 .6 1 CNA G roup USD

3 1 ,7 6 4 .9 6 Q tel In tern a tio n al LLC USD

3 1 ,2 6 4 .3 6 Eaton C orporation USD

2 9 ,8 3 0 .2 6 K eefe B ru y ette & W o o d s USD

2 9 ,3 0 6 .0 2 R o ch este r G as and Electric Corp. USD

2 8 ,5 5 1 .5 9 D ouglas, Daniel USD

2 8 ,4 0 2 .6 3 E ntergy N uclear, Inc. x USD

2 7 ,0 8 0 .3 9 R eceiver o f ELNY USD

2 6 ,3 8 8 .5 6 Investcom USD

4 5 ,6 3 0 .6 6 Frederick S.A jlan USD

4 2 ,3 9 4 .1 8 NBC U niversal M edia, LLC USD

3 9 ,4 5 7 .8 3 C artesian C apital P artn ers USD

3 9 ,3 6 8 .1 3 San S o re n to In v e stm en ts Ltd. USD

3 8 ,2 2 7 .2 7 M e d tro n ic S o fam o r D anek, Inc. USD

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3 0 ,3 1 8 .1 3 M e e h an W h itco m b , J. G ross, Shinn, Bolson, Lam bin, C. G ross USD

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2 5 ,7 0 7 .1 9 R ete Ferroviaria Italiana (RFI) EUR

NYDA-0000015

-Transaction Types to Inc v e blank to include all)------------------------

P General Journal Detail P Voucher Dstal P Check Detail

P ' Display Full Transadion Description

P Compute Beginning Estance Start Date: f12 /3 1 /2008 End Dale: 112/31 /2008

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1 Tioe i Balch ID TransactionID 1 Date

■8jst-1<3; 1 CurrDale i Debit 1 ' Oedfc 1 Balance ! Description 1 Erro/Proi 1 Bank ID 1 Account 11 r GJ GJ743484 EL8SAU007566 112/31/2008 fEUR :07/10/2008 345.79: 3J219.9S8.08 Unbilled Costs 101 '101 . 01 1211 : 000 : 00000 .000x 002 r GJ GJ743484 ELBSAUX75S6 ! 12/31/2008 j EUR ; 07/10/2008. 345.79. 3213.622.23! Unbilled Costs 101 •101 iO l! 1211 ;0C6 [00000 ;000XX3 r GJ GJ743484 ELBSAU007556 !l2/31/20XjEUR ! 12/05/2008: 391,353.12: 3213.958.08' Unbilled Costs ! 101 101 ;01 : 1211 [000 :;00000 ;xooox !4 r GJ GJ743484 ELBSAU007566 ! 12/31/2008! EUR :12/05/2008: 39.268.75! 2.828,614.36.Intercompany 101 101 01; 1571 iOCO j'OXOO xooox !5 r GJ GJ743484 ELBSAU0O756S '12/31/200B.EUR 108/31/2008: 10.50: ; 2.867,083.71: Irtercompany i 101 101 01 '.1576 ;;000 00000 ;ooxxo t6 r GJ GJ743484 ELBSAU0075S6 '12/31/2000 iEUR 112/05/2000: 152.055.83, 2.067.073.21; Irtercompany I 101 101 ;01 M508 1000 jlOOOOO : 000X00 t7 r GJ GJ743484 ELBSAUX75BS '12/31/20G9IEUR j 12/05/2000 200.028.40! 3.019.929.10 Intercompany 101 101 1011 1589 : :000 1, 00000 '000X00 18 r GJ GJ743484 ELBSAU00755S 12/37/20001 EUR i 07/10/2008' 345.73 3.219.957.58’ Irtercompany 101 101 1011.1590 ';00i) j;00000 iXOOOOO !3 r GJ GJ743484 ELBSAU00756S .12/31/2008; EUR j 07/10/200B1 345.73; 3.213.611.73! Irtercompany 101 101 ;:01 ! 11590 t 000 :.00000 ;oooxx !10 r GJ GJ743484 ELBSAU00756S 12/31/2008 iEUR 100/31 /200B: 10.50; 3,213,957.58' Unbilled Costs 101 ■101 J.30M 211 ;:ooo i* ooooo '00X00011 r GJ GJ743484 ELBSAUX75S6 12/31/2008 ;EUR ; 12/05/2008 392GB.75 i 3,213,958,08 Irtercompany 202 215 t’1 5 1 1570 idoo 00000 xooooo12 r GJ GJ743484 ELBSAUX75S6 ■ 12/31/200Bi EUR ,12/05/2008' 39.268.75l 3.183.899.33; Costs Written Down 202 !215 ::15:,;B300 .;007 i:000X 'X 0 X X13 r GJ GJ743484 ELBSAU007556 12/31/2OQ0-EUR i 10/15/2008 3.281 3^19.958.08'Unbilled Costs 203 261 1,61 *1211 000 j 00000 '4181 OX 114 r GJ GJ743484 ELBSAU007566 ,12/31/2000! EUR i10/31/20081 2171 3,219.971.34' Unbilled Costs ;203 1261 1:01 '.'1211 :-000 1000X 4181 OX15 r GJ GJ743484 ELBSAU007556 12/31 /2008IEUR • 08/31/2008 • 10.50: 3J219.373.51 ilntercompany 203 26! 61 '1570 .;000 '0X00 -4510010 !16 r GJ GJ743484 ELBSAUX756S ; 12/31/2008; EUR : 10/15/2008^ 3.26' 3213.9B4.01 ■ Costs Written Down 203 !261 .'Ol 6X0 ;.007 j; 00000 16288100 i17 r GJ G J7A3A84 ELBSAU007565 12/31/2008; EUR '10/31/20081 217 3^19.9B0.75 ’ Costs Written Down 1203 261 ; 61 • 6300 :;X 7 00X0 !6288100 !18 r GJ GJ743484 ELBSAU007566 ! 12/31/20081 EUR ;08/31 /2008■ 10.50 3.219.978.58; Costs Written D own 203 261 . 61 6300 030 10X X 1628810019 r GJ GJ743484 ELBSAU007556 : 12/3i/20081 EUR ; 12/05/2008! 56,168.31; 3.219.358.08: Costs Written Down i207 271 122! 6X0 1012 :0X X : 000X00 ,20 r GJ GJ743484 ELBSAU0075SS . 12/31/20081 EUR .12/05/2008; 152.055.83. 3276.136.39; Intercompany 207 271 ;i23: 1570 : 0 X 1000X '000X00 '21 r GJ GJ743434 ELBSAU0075S6 : 12/31/2008! EUR : 12/05/2008': 70.1f83.33’ 3,124.080.50; Costs Written Down ;207 271 -i23i 6300 '012 ’ 00000 10000X022 r GJ :GJ743484 EL8SAUX75S6 .12/31/20081EUR r 12/05/2008 25.707.19- 3.194,250.83; Costs Written Down 1207 271 ;1231 $300 067 :00000

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23 r GJ GJ743484 ELBSAU007566 i 12/31/2008! EUR '05/28/2008' 11.98: 3.219.968.08; Unbilled Costs 1208 ;XX00024 r GJ GJ743434 ELBSAU007566 '.12/31/20081EUR * 12/05/2008 200J328.48 3219256.10: Intercompany 1208 !2X j24: 1570 ,.X 0 10X00 ■000x 0025 r GJ GJ743484 ELBSAU007558 .12/31/2008 EUR '05/28/2008 ^ 11.98: 3,019227.62; Costs Written Down 1208 280 •! 24 • 6300 : 050 iOXOO '000X0026 r GJ GJ743484 ELBSAUX7566 ■12/31/2008 EUR 12/05/2X8- 200,028.48! 3,019239.60 j Costs Wrilten Down 1208 280 ij2 4 '!6300 !!055 ;j000X .x o x o o ]

27 r GJ GJ743434 ELBSAU007566 12/31/2008 EUR : 12/17/2008. 1.15: 3.219268.08; T ransadion 270 \ 1209 !230 104 :1211 ’XO ; 100000 'x o o x o !29 r GJ GJ743484 ELBSAU0075S6 12/31/2008 EUR 112/17/2008: 1.15! 3219266.93! T ransaction 270 (209 ,290 , |0 4 :;l2 li -000 10X00 fOOOXX29 r GJ GJ743484 ELBSAU0075S6 (12/31/2008 EUR : 10/06/2008: 7.68: 3219258.08j Unbilled Costs 1209 1^3 10411211 idoo iOOXO :000XX30 r GJ GJ743484 ELBSAU0075S6 ■12/31/2008 EUR 111/03/2008 51.68! 3219275.76; Unbilled Costs 1209 1290 !0 4 111211 ,:OO0 !OOOOO' 0000X0 131 r GJ GJ743484 ELBSAU0075SS ;12/31/2008 EUR 11/10/2008; 61.49 3220,027.44! Unbilled Costs ,209 290 :04;i12il 1000 100X0 ooooox i32 r GJ GJ743484 ELBSAU007556 .12/31/2008 EUR '11/13^008 51.91 3220,088.93! Unbilled Costs _ . - 209 ;290 : 04';1211 jiOOO !00000 :000X X 1.33 r GJ GJ7434S4 ELBSAUX75S6 :12/31/2008 EUR 111/18/2008 50.86' 3220,140.84 ' Unbilled Costs 1209 290 ;:o4 1211 1x 6 :ooooo !000XX 134 r GJ GJ743484 ELBSAUX75S6 112/31/2008| EUR 11/19/2008; 48.51 3220,191.70; Unbiled Costs •209 ,'290 ;:04::12li ]000 :[OOOOO : 000X00 135 r GJ GJ743484 ELBSAU0075S6 .12/31/2008IEUR ;11/20/2008: 10.37! 3233240.21: Unbilled Costs -209 290 i:04 ,1211 jfOOO >00000 1000X00 !

36 r GJ GJ743484 ELBSAUX7556 112/31/2008! EUR :11/24/2008: • 10.35 3,220,250.58; Unbiled Costs ;209 1290 !04 :12ii ilddd -ooooo :o o o x x37 r GJ GJ743484 ELBSAUX7566 112/31/2008 EUR ;il/25/2008. 4.35: 3220261.53, Unbilled Costs 209 1290 ;04 ';1211 1000 ; 00000 '000X0038 r GJ GJ743484 ELBSAUX75S6 i12/31/2008 EUR '12/01/2008 51.47! 3220265.88] Unbilled Costs

3220,317.35! Unbilied Costs209 2 X ;!04'i12t1 [ 0 0 0 -lOOOX '000X00

39 r GJ GJ743484 ELBSAUX756S 112/31/2008 EUR 112/05/2008! 44.86: i 209 ,290 : 04 !ii2 ii ;:000 lo o x o 000X004f1 r GJ GJ743484 ELBSAU007566 i 12/31/20081 EUR '12/17/2X8: 1.15: 3220,36221: Unbilled Costs 1209 1290 :;04i;l211 ;:o6o .!OOOOO 'XOXOO41 r GJ GJ743484 ELBSAU007556 :12/31/2008 EUR 12/18/2008' 12351 3220,353.361 Unbilled Costs ,209 ;2S0 10411211 1X 0 JOXOO 1X0000042 r GJ GJ743484 ELBSAU007556 '12/31/2008 EUR :07/10/2008 345.79; 3220,375,71; Irtercompany 1209 1290 1:04: 1570 ;’000 10X00 iOXXOO I43 r GJ GJ743484 ELBSAU007566 112/31/2008 EUR ; 07/10/2008: 345.73. 3,220.029.321 irtercompany ;209 !290 1 041 1570 :;OGO ,!0X00 1000X00 —44

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APPENDIX H

DISTRICT ATTO R N EYOF THE

C O U N T Y O F N E W Y O R K

ONE HOGAN PLACE

New York, N. Y. 10013

(2 1 2 ) 335-9000

June 13, 2014

By Regular and Electronic Mail E lk an A bram ow itz , Esq.M orvillo A bram ow itz G ran d Ia so n & A nello PC 565 F ifth A venue,N ew Y ork , N ew Y o rk 10017

A ustin V. C am priello , E sq.B ryan Cave LL P1290 A venue o f d ie Am ericasN ew Y ork, N ew Y ork 10104

E dw ard J. M. Little, E sq.H ughes H u b b ard & R eed L L P O n e B attery Park P laza N e w Y ork , N ew Y ork 10004

Re: P eople v. D avis. D iC arm ine. Sanders, and W arren . Ind . 773 /2014 P eop le v. W arren . Ind. 5393 /2013

C ounsel:

T his le tte r is in resp o n se to a B rady dem and, tw o letters dem anding discovery, and a dem and fo r a bill o f particulars th a t w e have received. W e will address each request in the o rd er in w hich it was received.

Request pursuant to Brady v. Maryland — Letter dated March 24,2014

Y ou m ake a series o f requests p u rsu an t to Bradv v. M aryland . 373 U.S. 83 (1963); G iglio v. U nited S tates. 405 U.S. 150 (1972); P eop le v. Cwikla. 46 N .Y . 2d 434 (1979); and C P L § 240.20(1) (h). W e are aw are o f o u r con tinu ing duties u n d er B rady. G iglio and th e ir p rogeny and will h o n o r o u r obligations..

C Y R U S R . V A N C E , JR .D is t r i c t A t t o r n e y

D em and for D iscovery -L e tte r da ted A pril29, 2014

W e resp o n d to th e requests in your le tter in order. F o r brevity’s sake w e do n o t rep ea t each request in its entirety.

1. A fte r a d iligent search, w e have p rod u ced all responsive p roperty in o u r possession , w ith th e excep tion o f certain lists o f em ployees and docum en ts th a t w ere claw ed back by D ew ey & L eB o eu f L L P o r th e D ew ey & L eB o eu f L iqu idation T ru s t (“ D ew ey”) u n d er a claim o f privilege (as m o re fully described in o u r le tter to C ounsel dated A pril 21 ,2014).

2. W e are w orking w ith D ew ey to p rov ide C ounsel the sam e access to the D ew ey accoun ting system th a t w e have.

3. A fter a d iligent search, w e have p ro d u ced all responsive p roperty in o u r possession , w ith th e exception o f certain em ployee lists and certain w ork pap er lists.

4. A fte r a d iligent search, w e have p ro d u ced all responsive p roperty in o u r possession.

5. A fte r a diligent search, w e have p roduced all responsive p roperty in o u r possession , w ith th e excep tion o f paperw ork relating to a car loan given to one individual w h o is n o t a defendant.

6. A fte r a diligent search, w e have p rod u ced all responsive p roperty in o u r possession , w ith th e exception o f tw o docum ents th a t relate to h o w an entity determ ined p ro p erty responsive to a G ran d Jury subpoena.

7. T o th e ex ten t responsive p ro p erty exists and has n o t o therw ise beenp ro d u ced , th e defendan ts are n o t en tided to it a t this tim e.

8. T o th e ex ten t responsive p ro p erty exists, the defendan ts are n o tentitled to it a t this time.

9. T o th e ex ten t responsive p ro p erty exists, th e defendan ts are n o ten titled to it a t this time.

10. T o the ex ten t responsive p ro p erty exists, th e defendan ts are n o t entitled to it a t this time,

11. T o th e ex ten t responsive p ro p erty exists, the defendan ts are n o t entitled to it a t this time.

Messrs. Abramowitz, Campriello, Little, and ShechtmanJune 13, 2014Page 2

Messrs. Abramowitz, Campriello, Little, and ShechtmanJune 13, 2014Page 3

12. T o th e ex ten t responsive p ro p erty exists and has n o t o therw ise been p ro d u ced , th e defendan ts are n o t en titled to it a t this tim e.

13. T o th e ex ten t responsive p ro p e rty exists, the defendan ts are n o t en tided to it a t this time.

14. T o the ex ten t responsive p ro p erty exists, the defendan ts are n o t entitled to it a t this time.

15. T o the ex ten t responsive p ro p erty exists and has n o t o therw ise been p ro d u ced , th e defendan ts are n o t en titled to it a t this time.

16. T o th e ex ten t responsive p ro p e rty exists, the defendan ts are n o t en tided to it a t this time.

17. W e have p rov ided all responsive m aterial and have com plied w ith ou r obligations u n d er CPL § 240.20(1) (a)-(i).

18. T o th e ex ten t responsive p ro p erty exists and has n o t o therw ise been p ro d u ced , the defendan ts are n o t en titled to it at this tim e.

W ith resp ec t to you r request p u rsu an t to CPL § 240.43, the defendan ts are n o t en titled to this in fo rm ation a t this time.

D em and for D iscovery -L etter da ted M a y 28, 2014

W e resp o n d to th e requests in you r le tter in order. F o r brevity’s sake we do n o t rep ea t each request in its entirety.

• T o th e ex ten t a responsive log exists, th e defendants are n o t entitled toit,

• T o th e ex ten t responsive privilege logs exist and have n o t otherw ise been p roduced , the defendan ts are n o t en tided to them .

• T o the ex ten t responsive co rresp o n d en ce o r o th e r w ritings exist, the defendan ts are n o t en tided to them .

• T o th e ex ten t responsive reco rds exist and have n o t o therw ise been p ro d u ced , th e defendan ts are n o t en titled to th em a t this time.

• T o th e ex ten t responsive records exist and have n o t o therw ise been p ro d u ced , the defendan ts are n o t entitled to them at this time.

Messrs. Abramowitz, Campriello, Little, and ShechtmanJune 13, 2014Page 4

• T o the ex ten t responsive m inu tes exist and have n o t o therw ise been p ro d u ced , th e defendan ts are n o t en titled to them at th is time.

• T o the ex ten t responsive records exist and have n o t o therw ise been p ro d u ced , the defendan ts are n o t en titled to them at this time.

• T o th e ex ten t responsive reco rds exist and have n o t o therw ise been p roduced , th e defendan ts are n o t entitled to them at th is time.

• T o the ex ten t responsive m aterials exist and have n o t o therw ise been p ro d u ced , th e defendan ts are n o t en titled to them at this time.

R equest foe a B ill o f Particulars — dated M a y 28, 2014

T h e facts se t fo rth in: th e ind ic tm en t; the V oluntary D isclosure F o rm (“V D F ”); th e allocutions o f T h o m as M ullikin, Francis Canellas, D avid R odriguez, Ilya A lter, L ourdes R odriguez, Jyhjing “V ictoria” H arring ton , and D ian n e Cascino; the S ta tem en t o f Facts; and the D isclosures - Falsifying B usiness R ecords C ounts, served in co u rt o n all counsel o n A pril 21, 2014, p rov ide all th e particulars to w h ich th e defendants are entitled. See C PL §200.95. T hey prov ide “ the substance o f defen d an t’s co n d u c t ... w h ich the P eo p le in tend to p rove a t trial o n th e ir d irec t case ....” T h e o th e r in fo rm ation requested is evidentiary detail b eyond th e scope o f a bill o f particulars. See. P eo p le v. D av is . 41 N .Y .2d 678, 680 (1977) (“ [a] bill o f particulars serves to clarify th e pleading; it is n o t a discovery device”). T he defendan ts acted as b o th principals and accom plices w ith resp ec t to the coun ts in w hich they are charged. W e n o te th a t in add ition to th e item s listed above, w e have p ro d u ced to th e defendan ts, a t their request, w ell over one m illion electronic docum ents fro m D ew ey and approxim ately 25 o th e r entities, and approxim ately 50 boxes o f h ard copy docum ents in electronic form .

Siiwei

C h ristopher C onroy A ssistan t D is tric t A ttorney

APPENDIX I

DISTRICT ATTORNEYO F T H E

C O U N T Y O F N E W Y O R K ONE HOGAN PLACE

N ew York, N .Y . 10013 (212) 336-9000

C Y R U S R, V A N C E , JR .DiaTntor Attorney

July 3, 2014

Hon. Robert StolzSupreme Court of the State of New YorkNew York CountyCriminal Term, Part 72100 Centre Street, Room 1123New York, NY 10013

Re: People v. Zachary Warren Indictment No. 0773/2014

Dear Justice Stolz:

We write briefly to correct several misstatements of both fact and law contained in the Reply Memorandum in Support of Motion by Defendant Zachary Warren for a Severance, dated June 23, 2014 (hereinafter, “Defendant’s Reply Memorandum”).1 A careful look at the argument in the defendant’s papers shows that there is some disagreement between the parties about the significance of particular facts, a clear indication that we are heading to a trial where a jury will resolve the points of disagreement. More important, though, is that die defendant’s argument rests primarily on rhetorical devices, which are not useful in resolving the legal question of whether severance is required. Moreover, the authority the defendant cites to support his position, when examined fuhy, does not militate in favor of severance.

The larger part of the defendant’s submission addresses itself to the facts of the case and the meaning the defendant wishes those facts to convey. The defendant first claims that severance is warranted, because the People’s entire case against him relies on the testimony of a single witness, Francis CaneEas, Then he walks farther out on a weak Emb, stating that all of the People’s evidence consists of a single

1 D efendant W arren argues for the first tim e in his Reply M em orandum that certain cases support his position.

T he People respectfully request th a t the C ourt consider this letter as a sutreply to th e defendant’s Reply

M em orandum .

DISTRICT ATTORNEY OF TH E COUNTY OF N E W YORKHon. Robert Stolz -2- July 3, 2014

meeting. Indeed, he states, “At bottom, the People’s case turns on what Mr, Warren overheard (and understood) during a single discussion between CanelLas and Sanders.” Defendant’s Reply Memorandum, at 4. The only underlying basis the defendant claims for his assertion is what he has gleaned from the allocutions of several of the People’s witnesses, as if those factual statements, were the only evidence of any kind that exists against the defendant. But as all of us well know, the allocutions are not the only evidence the People will introduce at trial against the defendant, but rather, they are a small part of the proof we expect to bring before the jury. O f course, counsel for Defendant Warren are well aware of much of the additional evidence, having attended a session with the People in which we set forth considerably more evidence than the allocutions alone express. Moreover, the Court should remain mindful that the purpose of the allocutions was to set forth facts implicating the witnesses in the crimes they committed; any part of them that inculpates the defendant is merely incidental. The defendant’s reliance on these very limited statements, which as he well knows generally cannot of themselves be admitted as evidence in chief against him, as the sole sources of evidence against him is disingenuous at best, Since the evidence against the defendant is not “a single discussion” between two other People, and since the defendant’s argument relies on a false premise, the Court should reject the defendant’s argument.

The defendant also relies heavily on repetition. Apparently he believes that the more he repeats his argument, rather than backing up his argument with facts explaining why only at a separate trial will his voice be heard, the more likely it is that the Court will grant him the relief he seeks. The point headings of the defendant’s first argument show that his own presentation of a basis for severance is lacking. Almost all of them merely state that he is entitled to a separate trial without explaining how he would be unable to present his case at a joint trial.2 For example, he claims in Point I.B. that the evidence shows that he played a lesser role than others in the criminal conspiracy, and therefore he should receive a separate trial. But after setting forth the few facts he chooses to acknowledge, he claims without support that only at a separate trial could a jury possibly determine whether he formed the requisite criminal intent to commit the crimes with which he is charged. Similarly in Points I.C., I.D., I.E., and I.F., the defendant claims that only a separate juty will be able to determine what he meant when he wrote particular e-mails, what he knew about accounting, what steps he took to cover up his crimes, and what he did or did not do after his employment ended. Nowhere does he explain why a separate jury is necessary here, when juries sort through these lands of facts all the time at joint trials. Nevertheless, in each of his points, he sets forth facts he wants to prove or disprove, and then baldly states, “That issue cries out for resolution in a separate trial,” id. at 7,

2 P oin t I. A. simply disputes th e significance o f a fact that will surely he p to v ed at trial.

DISTRICT ATTORNEY O F THE COUNTY OF N E W YORKHon. Robert Stolz -3- July 3, 2014

or “Mr. Warren is entitled to a separate trial on the question whether he took steps to cover-up a fraud.” Id. at 8. Simply repeating the same unsupported conclusion over and over does not satisfy the standard for severance.

Rhetoric aside, the defendant cites legal authority purportedly in support of his argument to rebut the People’s posidon that virtually all of the evidence that we would present at a joint trial of the defendant and his codefendants would also be admissible at the defendant’s trial if he were tried separately. However, none of the authority he highlights for the Court actually supports his request for severance. First, he calls the Court’s attention to United States v. Mardian. 546 F.2d 973 (D.C. Cir 1978). In Mardian, a lawyer for the Committee to Reelect the President was tried jointly with others who covered up the Watergate burglary, and the Court determined that he should have been tried separately. Id. at 981. In his papers, the defendant claims that the case was remanded for a new trial, because much of the testimony at the joint trial focused on events after Mardian was no longer active in the cover up. Defendant’s Reply Memorandum, at 12. In fact, the defendant’s argument misleads this Court as to the reason for granting a new trial. Indeed, the Court in Mardian noted that the defendant’s application for severance was considered and denied pretrial. “Based on the information then before the court, that showing was not so compelling that it was clear Mardian’s interest in a separate trial outweighed these interests favoring joinder. We are therefore unable to say that this initial denial of severance constituted an abuse of discretion,” 546 F.2d at 979. What the defense here has failed to bring forward is that two weeks after the trial began, Mardian’s attorney was hospitalized, and it was determined that he would be unavailable for six weeks. Id. When the attorney’s associate then moved for severance, Mardian explained that he wanted to be represented by the attorney he had hired, and not the associate, and the prosecutor did not oppose the severance. Id, The D.C, Circuit held that denial of the severance under those circumstances was error. Id. at 979-80. The Court reasoned that because the defendant had some basis to ask for severance in the first place, that he had the right to be represented by the counsel of his choosing, there was no opposition to the severance, and apparently the government did not intend to introduce, all of the same evidence at a severed trial, then severance should have been granted. Id. at 981. In contrast here, the defendant is represented by the lawyers of his choosing, the People do not consent to the severance, and we expect the evidence at any separate trial to repeat almost entirely the evidence at a joint trial. Thus, rather than support the defendant’s request, Mardian undermines it.

In a footnote, the defendant also cites United States v. Gallo. 668 F. Supp. 736 (E.D.N.Y. 1987), for the proposition that he should receive a separate trial, because he engaged in fewer criminal acts than his codefendants did. What the defendant doesn’t acknowledge is that the indictment in Gallo (1) charged a RICO count in

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which only some of the joined defendants were charged, (2) charged a number of criminal schemes and conspiracies, all of which charged only a subset of the defendants, with some defendants being charged in only one, (3) charged a number of violent crimes, while many of the defendants were charged with only nonviolent crimes, and (4) charged a number of the defendants with being “made members” of an organized crime family, while many of the other defendants were not. Id. at 750- 51. This combination of factors among a number of others led the Court to sever the defendants into groups. In contrast here, all of the defendants are charged in the same two related counts of Scheme to Defraud in the First Degree and Conspiracy in the Fifth Degree, Each of the defendants is charged individually or with one or more codefendant with each of the Falsifying Business Records counts that were necessary components of the ongoing scheme and conspiracy. The complexity of the indictment here does not approach that of the indictment in Gallo, so that comparing the two cases provides no useful guidance.

The defendant claims that it is difficult to find fact patterns in other cases that are similar to the facts in the case here. Likely that is so, because courts do not grant severances in cases like this one. Nevertheless, he seems to have found two that he believes are just like i t First, he cites United States v. Flvnn. 852 F.2d 1045 (8th Cir. 1988), but he is inaccurate in setting forth its facts and holding. In Flynn, the defendant participated with other members of a St. Louis organized crime group to commit several murders of rivals. M- at 1047-49, The others were charged in an indictment and convicted in 1985. Id. at 1049. Subsequently, the defendant was indicted in 1986. Id- at 1050. The indictment against the defendant charged RICO, including three of the seven specific criminal incidents in which the group had engaged. Id. Of the seven total criminal incidents, the defendant had participated in five, some early, some in the middle, and some neat the end of the course of criminal conduct of the group as a whole. Id, at 1047-49. The government introduced evidence of the defendant’s participation in four of the five, and also of the “enterprise” element of RICO. Id. at 1052-53. As the defendant here correctly cites, the Eighth Circuit ruled, “The evidence of discussions concerning possibly killing Massaud and Trupiano and of the Michaels’ murder, in light of the overwhelming evidence presented at trial, was not necessary to prove the existence of the enterprise. . . . Its prejudicial value outweighed its probative value” Id. at 1054. But the Court also noted that, had Flynn been indicted and tried with the other members of the organized crime group, “the testimony would have been admissible . . . provided that the appropriate instructions had been given,” Id,. Understandably defendant Warren neglects to mention this in his papers, because it eviscerates bis argument for severance.

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Moreover, the case before this Court is quite different. First, procedurally, in Flynn the defendant was tried separately from the other criminals with whom he conspired, because he was never even indicted until after they were convicted. Severance was not an issue as it is here. Second, the only evidence the Court in Flynn found to be improperly admitted into evidence was that which was deemed “not necessary” to prove the existence of the enterprise, because the jury had already heard “overwhelming evidence” of that element. Here, the defendant claims that the only evidence against him is “a single discussion between Canellas and Sanders.” Defendant’s Reply Memorandum, at 4. Thus, if the defendant is to be believed, there is hardly overwhelming evidence against him, and so the introduction of additional evidence would necessarily have greater probative value here than such evidence had in Flvnn. It is significant that the piling on of the evidence in Flynn was not so prejudicial that it constituted reversible error. Rather, the Eighth Circuit found that the trial court’s instructions to the jury cured any potential error. 852 F.2d at 1054. Since the quantum of evidence against the defendant here is necessarily different than that against the defendant in Flvnn, the defendant’s attempt to compare the two is a meaningless exercise that does not advance his argument for severance.

The second case the defendant likens to the case here is United States v. Kelly. 349 F.2d 720 (2d Cir. 1965), Before examining the case it must be noted that Kelly was decided several years before Bruton v. United States. 391 U.S. 123 (1968), and many years before Crawford v. Washington. 541 U.S. 36 (2004). Had the legal rules from those cases existed at the time Kelly was tried, it is unlikely that the case would have been tried as it was. In Kelly, several people conspired to commit a fraud by manipulating the price of a company’s stock during the 1950s. 349 F.2d at 729-55. One participant, Shuck, who ran a boiler room to sell the stock, did not enter the picture until much of the criminal conduct at issue — most of which was wholly unrelated to the boiler room activity - had already occurred. Id. The Second Circuit held that the trial court should have taken action to recognize Shuck’s “different position.” Id. at 756. The Court set forth a number of ways the trial judge could have done that, including granting a severance, marshaling the evidence for the jury during the court’s charge, apd providing more specific instructions on, the law. Id. at 756-57. The Court dedicated most of its discussion to how marshaling the evidence for the jury, despite all counsels’ request that the trial court not do so, in tandem with an appropriate legal instruction, would have cured the problem. Id- at 757. Moreover, the Second Circuit took issue with the introduction into evidence of “post-conspiracy testimony before the SEC and the Attorney General of the State of New York,” given by Shuck’s codefendants and implicating Shuck. Id. at 758. “(Tjhete was such a volume of such proof, and it was so clearly not necessary to the Government case against [Shuck’s codefendants], that [the Second Circuit was] constrained to hold that no amount of cautionary instructions could have undone the

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hatm to Shuck.” Id. The Second Circuit held that it was an abuse of discretion not to grant a severance at the point this testimony same into evidence. Id. at 759. Today, no court would allow this evidence in the first instance. Testimonial statements of this sort (which by definition cannot be coconspirator statements) by one defendant about another would require a Bruton severance, and for the last ten years would be inadmissible entirely against the codefendant under Crawford.

Again, the case before this Court has significant differences from Kelly. First, we do not seek to use post-conspiracy statements made by Defendants Davis, DiCarmine, or Sanders in the People’s direct case against Defendant Warren, so there is no Bruton issue here. Second, this is not a case where Defendant Warren’s codefendants employed unrelated “ingenious schemes and designs,” jd- at 759, before Defendant Warren even entered the scene. Instead, he was there to light the spark that fueled the scheme until its implosion in 2012. What may not be so different is that when the Court delivers its final charge to the jury, a proper marshaling of the evidence and appropriate legal instructions can convey the proper legal standards against which the jury must weigh the trial evidence, something the trial court in Kelly failed to do.

Here, the evidence at any trial against Defendant Warren will include all evidence describing the criminal scheme in which he actively participated and the criminal conspiracy in which he played a role. The evidence will include a full presentation of what made up that scheme and that conspiracy, how they operated throughout their existence, and the effects they had on their victims. The evidence against Defendant Warren will be the same whether he is tried with his codefendants or alone. And that evidence will describe the full extent of Iris crimes as well as the full extent of the scheme to defraud and the conspiracy in which he played a significant role. Severance is in no way warranted. After all, the grand jury joindy charged Defendant Warren and his codefendants with engaging in a Scheme to Defraud. Even if Warren were tried Separately, the People would be entided to present evidence of the existence, nature, and extent of the scheme, including proof about the activities of its various members. Similarly, the grand jury charged Defendant Warren and his codefendants with Conspiracy. Accordingly, even at a separate trial, evidence of his coconspirators’ conduct would be admissible to prove the existence and nature of the conspiracy and the completion of overt acts in furtherance of the conspiracy, from which Defendant Warren never withdrew, even after his physical departure from Dewey. All told, the policy considerations discussed in our brief filed on June 13, 2014, militate heavily toward a joint trial here due to the fact that virtually identical evidence would be presented at a separate trial of Warren, See. People v. De Los Angeles. 270 A.D.2d 196, 197-98 (1st Dept. 2000)(in a case charging conspiracy, trial court properly denied severance motions “since most

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of the People’s evidence was introduced to establish the joint enterprise” and thus “applied to all defendants” and, in an eight-month trial with 70 witnesses, severances merely “would have turned an already extended trial into several such trials”); People v. Association of Trade Waste Removers. 267 A.D.2d 137, 139 (1st Dept. 1999)(in enterprise corruption case, severance motions properly denied since evidence of codefendants’ acts would have been admissible in separate trials); see also. United States v. Casamento. 887 F.2d 1141, 1152-53 (2d Cir. 1989)(in 35-defendant, 270- witness trial, no undue prejudice to “comparatively minor” conspirators where “much of the evidence . .. would have been admissible” in “single-defendant trials”); see generally, People v. McGee. 49 N.Y.2d 48, 57-58 (1979) (“the overt act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy”).

Therefore, the People respectfully request that the Court deny in all respects the defendant’s motion for a trial separate from his codefendants.

Respectfully submitted,

Peirce R. Moser Assistant District Attorney

Steve PilnyakAssistant District Attorney

Michael Kitsis Assistant District Attorney

cc:

Paul Shechtman, Esq. (for Defendant Zachary Warren)Elkan Abramowitz, Esq. (for Defendant Steven Davis)Austin V. Campriello, Esq. (for Defendant Stephen DiCarmine) Edward J.M. Litde, Esq. (for Defendant Joel Sanders)