Spanier Mtn Dismiss Binder2

8/18/2019 Spanier Mtn Dismiss Binder2

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TIMOTHY A. SCOTTCalifornia Bar No. 215074LAW OFFICES OF TIMOTHY A. SCOTT, APC1350 Columbia Street, Suite 600San Diego, California 92101Telephone: (619) 794-0451

Facsimile: (619) 652-9964email: [email protected]

Attorneys for Jeffrey Spanier

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

(HONORABLE JEFFREY T. MILLER)

UNITED STATES OF AMERICA, ) Case No. 12-CR-00918-JM)

Plaintiff, ) Date: May 6, 2016) Time: 11:00 a.m.

v. )) Notice of Motion and Motion to:

JEFFREY SPANIER, )) 1. Dismiss Indictment with Prejudice

Defendant. ) )

Mr. Spanier, by and through counsel, asks that the Court grant the above-captioned

motion. This motion is based on the memorandum of points and authorities and exhibits,

attached, and all files and records in this case.

Dated: April 4, 2016 Respectfully submitted,

s/ Timothy A. Scott TIMOTHY A. SCOTTNICOLAS O. JIMENEZLAW OFFICES OF TIMOTHY ASCOTT, APCAttorneys for Mr. Spanier

Case 3:12-cr-00918-JM Document 445 Filed 04/04/16 Page 1 of 1


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TIMOTHY A. SCOTTCalifornia Bar No. 215074LAW OFFICES OF TIMOTHY A. SCOTT, APC1350 Columbia Street, Suite 600San Diego, California 92101Telephone: (619) 794-0451

Facsimile: (619) 652-9964email: [email protected]




(HONORABLE JEFFREY T. MILLER)

UNITED STATES OF AMERICA, ) Case No. 12-CR-00918-JM)

Plaintiff, ) Date: May 6, 2016) Time: 11:00 a.m.

v. )) Memorandum of Points and Authorities in

JEFFREY SPANIER, ) Support of Defendant’s Motion to Dismiss) Indictment with Prejudice

Defendant. ) )

I.

Introduction and Issue Presented

The Speedy Trial Act required that Mr. Spanier be retried within 70 days after his

first trial deadlocked. That did not happen. The Court now looks to the seriousness of

the offense, the facts and circumstances of the dismissal, and the impact of any re-

prosecution on the administration of justice to determine whether the indictment should

be dismissed with or without prejudice. Because the government used the delay to

secure an immunized witness against Mr. Spanier, because its litigation positions

throughout the case have compounded the violation, and because of the considerable

out-of-court impact of these proceedings on Mr. Spanier and his life, the indictment

should be dismissed with prejudice.

1 12-CR-00918-JM

Case 3:12-cr-00918-JM Document 445-1 Filed 04/04/16 Page 1 of 13


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II.

Statement of Facts

A. Mr. Spanier’s first trial ends in acquittals and a hung jury.

This case began more than four years ago, when a grand jury indicted Mr. Spanier

and two codefendants, James Miceli and Douglas McClain, Jr., for mail fraud, wire

fraud, and related offenses. See Docket 1. Miceli and McClain ran the Argyll Group.

Argyll made loans to corporate executives, secured by the executives’ stock collateral.

Id. Mr. Spanier ran a company called Amerifund, which essentially connected

interested executives with Argyll in exchange for a percentage-based fee. Id .

The government’s theory of the case was that Miceli, McClain, and Mr. Spanier

defrauded the executives and stole the stock collateral. Argyll falsely represented that it

had substantial independent sources of cash to lend and that it would not sell the stock

pledged as collateral unless the borrowers defaulted on their loans. Id . But in reality,

Argyll sold the borrowers’ stock to fund the loans. Id. Mr. Spanier, according to the

government, participated in the fraud by luring borrowers into the scheme and then

ignoring or deceiving them when confronted with evidence of Argyll’s wrongdoing. The

government also pointed to undisclosed “back-end” fees that Mr. Spanier received from

Argyll as evidence of his knowledge and acquiescence in the fraud. Mr. Spanier

adamantly denied these allegations and prepared to defend the case at trial.

Pretrial, the Court declared the case complex under the Speedy Trial Act, but

limited excludable time from September 24, 2012 until January 23, 2013. See Exhibit A.

Mr. Spanier and McClain went to trial on May 14, 2013. After a lengthy trial and five1

days of deliberations, the jury acquitted Mr. Spanier on six counts and deadlocked on the

rest. See Docket 212. It convicted McClain on all counts. See Docket 211. McClain

received a sentence of 15 years in custody. His conviction and sentence were affirmed

on appeal.

Sadly, defendant Miceli committed suicide while on pretrial release.1

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B. Mr. Spanier’s second trial does not begin until well after the Speedy Trial

clock has expired.

The district court declared a mistrial as to the deadlocked counts on May 31, 2013.

The government suggested a retrial date in September of that year. See Exhibit B at

241. Defense counsel stated that he had a prepaid vacation for two weeks starting2

September 21 but if the Court wanted to set the retrial on a different date, including

earlier , he was “at the court’s service.” Id . The government suggested October. Id. at

242. The district judge commented that he thought he had a conference towards the end

of October, and the government stated if “you want to do it on your return, that is fine

with us.” Id . The Court and the parties ultimately decided to set a status conference for

June 10, 2013 to set a trial date. Id . at 243. There was no discussion of the Speedy Trial

Act’s 70-day limit to start the retrial, the complexity of the case, witness issues, or any

parties’ need for additional time to prepare.

At the June 10 hearing, the government confirmed that it planned to retry the case.

The district court initially thought that the parties had discussed a September trial date,

but the government then mentioned late October or early November. See Exhibit C. The

district court suggested the first week of October, but defense counsel reminded the

district court that he was out of town at that time returning October 4 and could try the

case immediately thereafter, as this case was his “first priority” and he would “sweep

everything else aside.” Id . The district court set a retrial date of October 8, 2013 (which

would have been immediately after counsel’s return from a family vacation). Id . Once

again, there was no discussion about the Speedy Trial Act, the complexity of the case, or

any difficulties with setting an earlier date. Two months later, after the Speedy Trial

Mr. Spanier’s references are to the page number used in the excerpts of record2

of his appeal, located at the bottom center of the page.

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detailed these findings on the record since the new Speedy Trial Act clock began to run

earlier this year. However, it is sufficient to detail these previously made-but-not-

announced findings on the record, now, in denying the motion to dismiss.” Id .

C. The government relies on the immunized witness to help secure convictions

against Mr. Spanier.

The second trial commenced on December 10, 2013. See Docket 312. Unlike the

first trial, the government presented the testimony of Manny Bello, a cooperating witness

whose immunized testimony had been secured shortly before the second trial. See

Exhibit E. Bello, who had pled guilty and cooperated with the government in a different

fraud case in the 1990's, testified that he had briefly worked with Argyll as a broker and

then started his own stock lending business. Id. at 112-20. He further testified that he

did a series of stock loans in which Mr. Spanier served as the broker in the 2008-09 time

period. He paid Mr. Spanier a fee shortly after the loans were issued, although his

agreements typically stated that the obligation to pay the fee did not arise until the

termination of the loan. Id. at 121-27. His loan agreements also usually contained

language allowing him to sell the borrowers’ stock, but on at least one occasion in which

Mr. Spanier served as the broker, a borrower negotiated a term prohibiting the sale of the

stock. Id. at 129-31. Bello nonetheless sold a portion of the stock and testified that, on

this occasion, he paid Mr. Spanier his fee when he sold the stock. Id. at 132-37.

Mr. Spanier once again vigorously denied the government’s allegations. As in the

first trial, his defense was that Argyll had duped him as thoroughly as it had duped its

investors. He testified, as before, that he did not know that Argyll sold stock to fund the

loans. This time, the government was able to obtain convictions against Mr. Spanier on

all counts and a special forfeiture verdict that included Mr. Spanier’s family home. See

Docket 323. The Court ultimately sentenced Mr. Spanier to 10 years in prison and

ordered him to pay over $20 million in restitution. See Docket 367.

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D. The Ninth Circuit vacates Mr. Spanier’s convictions and sentence.

Mr. Spanier appealed. He argued, inter alia, that the district court had erred in

denying his motion to dismiss based on the violation of the Speedy Trial Act. He noted

that the contemporaneous record showed that the government had requested and

obtained a retrial date beyond the 70 days authorized by the Speedy Trial Act, and that

the district court had compounded the error through post-hoc rationalizations that were

belied by the record. Mr. Spanier argued that the severity of these errors required

dismissal of the indictment with prejudice.

In response, the government argued that the retrial date was delayed because

defense counsel was not available earlier and needed more time to prepare for trial. See

Exhibit F. The government also asserted that time was excluded because of the case’s

complexity, despite the district court’s specific order that limited the complexity

exclusion to a four-month period before the first trial. Id . Lastly, the government

attempted to argue that a delay was needed so that the transcripts of the first trial could

be prepared, for discovery issues to be resolved, and for the Court to address an alleged

issue with the forfeiture of certain property, despite none of these claims finding any

support in the record. Id .

On January 21, 2016, fifteen months after Mr. Spanier filed his opening brief, the

Ninth Circuit reversed his convictions and sentence. See Exhibit G. The Court noted

that “the district court in this case initially relied on the government to set a retrial date in

September, a date outside the 70-day period.” Id . at 3. The Court then rejected each of

the proffered reasons for denying Mr. Spanier’s motion to dismiss. The Court observed

that “the district court’s explanation in denying Spanier’s motion to dismiss, that the

continuances were granted due to case complexity was, unfortunately, insufficient.” Id .

The Court further held that “similarly, the court’s proffered justification that the

continuances were granted due to counsel’s need for time to prepare is belied by the

record.” Id . Indeed, the Court concluded that “regrettably, the district court’s practice in

6 12-CR-00918-JM



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this case of retroactively characterizing a continuance to justify a violation of the Speedy

Trial Act was inconsistent with the language and policy of the Act.” Id . at 4.

The Court of Appeals remanded for this Court to decide whether the indictment

should be dismissed with or without prejudice. This motion follows.

III.

Discussion

The Speedy Trial Act enumerates three factors to determine whether dismissal

should be with or without prejudice. The Act states: “In determining whether to dismiss

the case with or without prejudice, the court shall consider, among others, each of the

following factors: the seriousness of the offense; the facts and circumstances of the case

which led to the dismissal; and the impact of a reprosecution on the administration of

this chapter and on the administration of justice.” 18 U.S.C. § 3162(a)(2). But there is

no preference for dismissals without prejudice: “[T]he choice of whether to dismiss with

or without prejudice depends on a careful application of the statutorily enumerated

factors to the particular case, there is no presumption in favor of either sanction.” United

States v. Clymer , 25 F.3d 824, 831 (9th Cir. 1994). Here, each of these factors favors

dismissal with prejudice.

A. The seriousness of the offense weighs in Mr. Spanier’s favor based on the

facts of this white-collar case.

The first factor is the seriousness of the offense. It weighs in favor of dismissal

with prejudice. The charges here involve economic crimes, which typically are

considered less serious than others, like violent crime or major drug trafficking. Cf.

U.S.S.G. § 4B1.1. And while the government claims a substantial amount of loss, the

Court recognized at the time of sentencing that the alleged victims were sophisticated

and successful executives, often represented by counsel, who were actually given

millions of dollars in loans; they were generally not particularly vulnerable victims who

were rendered penniless by the defendants’ actions.

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Moreover, in considering Mr. Spanier’s role in the alleged fraudulent conduct, the

evidence at both trials clearly established that Miceli and McClain were primarily

responsible for Argyll’s scheme. Mr. Spanier simply negotiated with borrowers. In

contrast, Miceli and McClain presided over the numerous Argyll entities, managed the

stock collateral, controlled bank and brokerage accounts, transferred money, drafted the

contracts, defended lawsuits, negotiated settlements, renegotiated loan terms, forgave

interest payments, granted extensions, collected interest payments, and even allowed

certain defaults to be cured. See PSR, Docket 337, at 6-8. Mr. Spanier, even under the

government’s version of events, did none of those things. He spoke with borrowers and

nothing else. Id . Indeed, the jury at Mr. Spanier’s first trial struggled with the issue of

culpability, acquitting him on several counts and deadlocking on the rest. It is for that

reason that the government opted to proceed at the second trial under an omissions

theory of fraud combined with a willful blindness / reckless scienter. See Docket 331 at

28. The government’s evidence showed, at best, that Mr. Spanier had allegedly been put

on notice about Argyll’s fraudulent conduct and decided to turn a blind eye. On balance,

the seriousness of the offense weighs in Mr. Spanier’s favor here.

B. The facts and circumstances that led to the dismissal—and the government’s

litigation positions throughout—overwhelmingly favor dismissal with

prejudice.

The second factor under § 3162(a)(2) also favors dismissal with prejudice. The

record is clear that the government requested and convinced the district court to set a

retrial date beyond the 70 days authorized by statute. It did so because it was interested

in securing an immunized witness to use against Mr. Spanier at trial. See Exhibit D at

141-142. That process caused the retrial to begin approximately four months after the

Speedy Trial clock had expired. In Clymer , 25 F.3d at 832, this Court found that an

improper delay of five months weighed in favor of dismissal with prejudice under the

second factor. This Court also reasoned that the delay in Clymer resulted in actual

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prejudice to the defendant. Id. at 832. Here the delay certainly prejudiced Mr. Spanier

by allowing the government to secure a key cooperating witness against him, one that

became a central part of the government’s case-in-chief. See also United States v. Hall ,

181 F.3d 1057, 1063 (9th Cir. 1999) (speedy trial delay prejudiced defendant by

allowing government to secure a cooperating witness).

The government’s conduct during the appeal also weighs in favor of dismissal

with prejudice. Instead of recognizing the district court’s clear violation of the Act, the

government defended the improper post-hoc rationalizations that defied longstanding

Ninth Circuit precedent. For example, the government claimed that the delay was proper

because defense counsel had requested a continuance to prepare for trial. But the record

shows that in response to the government’s request for a September 2013 date (which

was already beyond the 70-day clock), defense counsel specifically stated that he was

only concerned about his pre-paid vacation from September 20 to October 4, 2013, and

that he could do the retrial earlier . See Exhibit B at 241.

Further, the government’s positions contributed to the case remaining on appeal

for 15 months, further exacerbating the original delay. Today, nearly four years will

have elapsed since Mr. Spanier was originally indicted, the last two years of the delay

being directly attributable to the government’s conduct before this Court and the Ninth

Circuit. Dismissal with prejudice is proper in these circumstances. See, e.g., United

States v. Lopez-Avila, 678 F.3d 955, 965-66 (9th Cir. 2012) (misrepresentations of the

record may justify dismissal with prejudice); United States v. Kojayan, 8 F.3d 1315,

1320, 1324-25 (9th Cir. 1993) (government’s continued failure to appreciate violation on

appeal can be basis for dismissal with prejudice).

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C. The administration of the Act and of justice heavily favor dismissal with

prejudice.

1. The district court’s post-hoc reasoning in support of an “ends-of- justice”

continuance favor dismissal with prejudice.

The third factor, which considers the impact on the administration of the Act and

the administration of justice, perhaps most strongly weighs in favor of dismissal with

prejudice. In finding that the third factor strongly weighed in favor of dismissal with

prejudice in Clymer , the Ninth Circuit cited the attempt by the district court and the

government to retroactively implement an “ends of justice” continuance in violation of

this Court’s longstanding precedent. The Court explained: “[W]e believe that the Act’s

most severe sanction is appropriate where the surrounding circumstances lead us to

conclude that district courts and United States Attorneys’ offices have failed to recognize

or implement our long-standing precedents.” Clymer , 25 F.3d at 832.

Importantly, in this case, the district court claimed that its post hoc rationalizations

were actually made at the time it granted the continuances, and the government defended

that claim despite the fact that it is defied by the timing of the events and the actual

discussions on the record. If a district court believes that a prosecution should not be

terminated, it can always dismiss the indictment without prejudice in accordance with the

Act. The answer is not to flout the Act and diminish the credibility of the system

through post-hoc rationalization. The Ninth Circuit has held dismissal with prejudice to

be appropriate in similar circumstances— see Clymer, supra —and so it should be here.

2. The lead defendants have suffered devastating consequences while Mr.

Spanier still faces an active SEC civil action.

“Dismissal with prejudice also serves the more general interest in the

administration of justice.” Clymer , 25 F.3d at 833. Like the defendant in Clymer , Mr.

Spanier’s codefendants were more “central participant[s] in the scheme . . . .” Id. at 833.

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Mr. Spanier was ranked third of the three defendants in the indictment. The lead

defendant, Miceli, committed suicide before trial, and the second defendant, McClain,

received a sentence of 15 years. See Docket 275. Thus, this case has had devastating

consequences for the main participants. Furthermore, Mr. Spanier still faces an active

SEC civil action, which can certainly exact restitution and penalties if justified. There

have already been two criminal trials, and “[t]he administration of justice would be ill-

served by allowing yet another trial and probable appeal at this late date.” Clymer,

supra.

3. The delay has substantially prejudiced Mr. Spanier because of his pretrial

restrictions on liberty.

The Court should also account for the effect of the delay on Mr. Spanier due to his

pretrial restrictions on liberty, which as noted above have now been in place for nearly

four years. As the Supreme Court observed in United States v. Taylor , 487 U.S. 326,

340 (1988), “The longer the delay, the greater the presumptive or actual prejudice to the

defendant, in terms of his ability to prepare for trial or the restrictions on his liberty:

‘“[I]nordinate delay between public charge and trial, ... wholly aside from possible

prejudice to a defense on the merits, may ‘seriously interfere with the defendant’s liberty,

whether he is free on bail or not, and ... may disrupt his employment, drain his financial

resources, curtail his associations, subject him to public obloquy, and create anxiety in

him, his family and his friends.’” Barker v. Wingo, 407 U.S. 514, 537 (1972).”

(Emphasis provided).5

These collateral consequences have taken a heavy toll on Mr. Spanier in this case.

Indeed, “a person facing serious criminal charges is hardly freed from the state’5

control upon his release from a police officer’s physical grip. He is required toappear in court at the state’s command. He is often subject, as in this case, to thecondition that he seek formal permission from the court (at significant expense)

before exercising what would otherwise be his unquestioned right to traveloutside the jurisdiction. Pending prosecution, his employment prospects may bediminished severely, he may suffer reputational harm, and he will experience thefinancial and emotional strain of preparing a defense.” Albright v. Oliver , 510U.S. 266, 278 (1994) (J. Ginsburg, concurring). See also United States v. Biggs419 F.Supp.2d 1277,1283 (D. Montana 2006).

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At the start of the case, the government seized Mr. Spanier’s personal bank accounts and

his joint accounts with his wife Regina, which contained the entirety of Mr. Spanier’s

income and savings. Mr. Spanier became indigent and has needed court-appointed

counsel since that time. Those accounts have remained frozen over the last four years.

See e.g., Docket 334. Mr. Spanier has been forced to borrow heavily from friends and

family to meet his daily obligations. His family home is facing foreclosure. He struggles

to make considerable periodic interest payments to the sureties that agreed to guarantee

the substantial bond obligations imposed the Court in this case. See Docket 335. It is

telling that Mr. Spanier has performed flawlessly on pretrial release over the last four

years, despite these significant restrictions on his life and liberty.

Moreover, the damage to Mr. Spanier’s reputation has been substantial. Despite

the fact that he has worked consistently since the start of this case, Mr. Spanier’s

employment prospects have been severely limited by the ongoing and unresolved

litigation in this case. Background checks and internet searches reveal the details of the

case and even the restitution judgment that has now been vacated, creating issues with

potential employers and creditors alike. Finally, the emotional strain of four years of

litigation on Mr. Spanier and his family cannot be underestimated. His children have

grown up wondering whether their father would see them graduate from high school and

college. His wife has had to live with the constant fear of seeing her husband remanded

into custody and losing Mr. Spanier’s physical, emotional, and financial companionship.

For these reasons too, the indictment should be dismissed with prejudice.

IV.

Conclusion

This case involves a clear-cut violation of the Speedy Trial Act. The government

used the delay to secure a key cooperating witness against Mr. Spanier. It then

repeatedly misstated the record on appeal as it attempted to justify the district court’s

post-hoc rationalizations for denying Mr. Spanier’s motion to dismiss. These actions

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compounded the original four-month delay into more than twenty months. Mr. Spanier

has been physically, emotionally, and financially prejudiced by these actions. Based on

this record, the government should not be rewarded with a third attempt to secure a

conviction against Mr. Spanier. The public has diminished interest in a third trial, and

even if there is a conviction, another full appeal. The letter and spirit of the Speedy Trial

Act require dismissal of the indictment with prejudice.

Dated: April 4, 2016 Respectfully submitted,

s/ Timothy A. Scott

TIMOTHY A. SCOTTNICOLAS O. JIMENEZ

LAW OFFICES OF TIMOTHY A.SCOTT, APC


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EXHIBIT

A



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MINUTES

OF THE

UNITED ST TES DISTRICT

OURT

SOUTHERN DISTRICT OF C LIFORNI

U.S.A. vs JAMES T. MICELI

(1) ,

DOUGLAS

MCCLAIN (2),

No.

l2CR09l8-BEN

JEFFREY T. SPANIER (3)

The Court f inds

excludab le

de lay ,

under

the sec t ion ind ica ted by check (

) ,

commenced on and

ended on

3l6l(h)

_ 1) (A)

Exam

or

hrg

for

mental

or

phys ica l incapacity

__

(1)

(8)

Sta te

or

Federa l t r i a l s

o r

other

charges

pending

_ 1)

(C)

Inter locutory appeals

_ 1) (D)

retr ia l motions (from

f lg

to hrg or o the r prompt dispo)

_ 1) (E)

Transfers from other

d i s t r i c t

FRCrP 20 21 40)

_ 1)

(H)

Proceedings under advisement not

to

exceed t h i r t y

days

Misc proc: Parole or prob rev,

depor ta t ion,

extradit ion

__

(1) (F) Transportation from ano ther d i s t r i c t

o r

to/ f rom

examination

o r

h o sp i t a l i z a ti o n i n

t en

days

o r

l e s s

__ (1)

G)

Considera t ion by Court

o f

proposed

plea

agreement

__ (2)

Prosecut ion

deferred by mutual agreement

(3) (A)&(B)

Unavai labi l i ty o f

defendant

or

essent ia l

witness

___

(4)

Per iod

o f

mental or

phys ica l

incompetence

of

defendant

to

s t and

t r i a l

___ (5) Superseding indictment and/or new

charges

(6) Defendant

await ing

t r i a l

o f co-defendant when

no

severance

has been

granted

__

(7)

(A)

(8)

Continuances

granted per

(h)

(7)

-use

"T"

alone

if

more

than

one of the reasons below are

given in

suppor t of

cont inuance

___

(7) (8)

( i ) 1) Fai lu re to

continue

would s top

fu r the r proceedings

o r

r e s u l t in miscarriage o f jus t i ce

-X....(7) (B)

ii)

2)

Case unusual

or complex

_ 7) (B)

iii)

3) Indictment

fo l lowing

a r r e s t cannot be f i l ed

in

t h i r t y (30)

(7) (B) ( iv)

4)

Continuance

granted

in

order to ob ta in o r subst i tu te

counse l o r give reasonab le

t ime

to prepare

___3161(8) (i)

Time up

to

withdrawal o f

gu i l t y plea

__

18:3l61(b)

Grand

jury indictment

t ime

extended

t h i r t y

(30)

more

days

udge s I n i t i a l s

Case 3:12-cr-00918-BEN Document 94 Filed 09/25/12 Page 1 of 1

260

Case: 14-50306, 10/22/2014, ID: 9287250, DktEntry: 10-2, Page 262 of 276

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EXHIBIT

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FOR THE SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

PLAINTIFF,

V.

DOUGLAS MC CLAIN AND JEFFREY

SPANIER,

DEFENDANTS.

. . . . . . . . . . . . . . . .

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NO. 12-CR-0918

MAY 31, 2013

2:38 P.M.

SAN DIEGO, CALIFORNIA

TRANSCRIPT OF JURY TRIAL, DAY 12

BEFORE THE HONORABLE ROGER T. BENITEZ

UNITED STATES DISTRICT JUDGE

APPEARANCES:

FOR THE PLAINTIFF: U.S. ATTORNEY'S OFFICE


BY: MICHAEL WHEAT, ESQ.

BY: FAITH DEVINE, ESQ.BY: JENNIFER GMITRO, ESQ.

880 FRONT STREET, ROOM 6293

SAN DIEGO, CALIFORNIA 92101

FOR THE DEFENDANT: LAW OFFICES OF MARK F. ADAMS

BY: MARK F. ADAMS, ESQ.

964 FIFTH AVENUE, SUITE 335


FOR THE DEFENDANT: LAW OFFICE OF TIMOTHY A. SCOTT

BY: TIMOTHY A. SCOTT, ESQ.

1350 COLUMBIA STREET, SUITE 600SAN DIEGO, CALIFORNIA 92101

COURT REPORTER: DEBORAH M. O'CONNELL, RPR, CSR

333 W. BROADWAY, ROOM 420

SAN DIEGO, CALIFORNIA, 92101

REPORTED BY STENOTYPE, TRANSCRIBED BY COMPUTER

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I N D E X

PAGE

VERDICT 8

223


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SAN DIEGO, CALIFORNIA, MAY 31, 2013, 2:38 P.M.

* * * *

THE COURT: GOOD AFTERNOON. THE RECORD SHOULD

REFLECT WE'RE OUTSIDE THE PRESENCE OF THE JURY. MR. SPANIER

AND MR. MC CLAIN ARE PRESENT. BOTH COUNSEL ARE PRESENT.

GOVERNMENT IS PRESENT. DEFENSE COUNSEL IS PRESENT.

COUNSEL, I HAVE TWO QUESTIONS FROM THE JURY. THE FIRST

QUESTION IS AS FOLLOWS: IF WE DECIDE THAT THE JURY IS HUNG ON

SOME OR ALL OF THE COUNTS, PLEASE ADVISE HOW WE ARE TO COMPLETE

THE FORM.

MY THOUGHT ON THAT IS TO TELL THEM, COMPLETE THE FORM IF

YOU HAVE REACHED A VERDICT ON ANY OF THE COUNTS, INDICATE WHAT

YOUR VERDICT IS, DO NOT FILL IN THE BLANKS ON THE OTHERS, AND

LET US KNOW THAT YOU'RE HUNG ON THE REMAINING COUNTS.

MR. SCOTT: I AGREE.

MR. ADAMS: I AGREE, YOUR HONOR. THANK YOU.

THE COURT: ALL RIGHT. THAT WAS THE EASY ONE.

THEY ALSO SENT THE FOLLOWING QUESTION: WE INITIALLY ASKED

YOU IF THE 5 PERCENT BACK-END FEE SHOULD BE DISCLOSED. YOU

TOLD US YES, IF -- "IF" IS UNDERLINED -- THERE WAS A FIDUCIARY

RELATIONSHIP. YOU SAID IT WAS UP TO US, THE JURY, TO DECIDE IF

THERE WAS A FIDUCIARY RELATIONSHIP. WE HAVE DECIDED IF THERE

WAS A FIDUCIARY RELATIONSHIP. NOW WE NEED RE-INSTRUCTION ON

WHAT IS MATERIAL.

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SO I DID A LITTLE QUICK RESEARCH, AND THE BEST THAT I

COULD COME UP WITH IS AS FOLLOWS: THE MOST COMMON FORMULATION

FOR WHAT IS MATERIAL IS THAT A CONCEALMENT OR MISREPRESENTATION

IS MATERIAL IF IT HAS A NATURAL TENDENCY TO INFLUENCE OR WAS

CAPABLE OF INFLUENCING THE DECISION OF THE PARTIES, OR THE

PERSON TO WHOM IT WAS ADDRESSED.

ANYBODY HAVE ANY OBJECTION TO MY TELLING THE JURY THAT?

IF NOT --

MS. DEVINE: WE THINK THAT IS A CORRECT STATE OF THE

LAW, AND I THINK IT IS IN THE JURY INSTRUCTION ALREADY.

THE COURT: IS IT? I LOOKED FOR IT. I PROBABLY

MISSED IT. SO DIRECT ME TO --

MS. DEVINE: I THINK IT WOULD BE UNDER THE MAIL

FRAUD. IT WILL SAY -- DO YOU HAVE THAT?

THE COURT: DIRECT ME TO THAT. I PROBABLY JUST WENT

THROUGH IT TOO FAST.

MS. DEVINE: IF YOU GO TO 8.101.

MR. WHEAT: THAT'S THE OLD INSTRUCTION.

MS. DEVINE: ON THE THIRD ELEMENT, WHERE IT TALKS --

THE COURT: WAIT. 8.101. I HAVE THE OLD MANUAL, SO

I DON'T KNOW IF THIS IS CONSISTENT WITH THE INSTRUCTION THAT I

GAVE.

MS. DEVINE: IT IS GOING TO BE THE MAIL FRAUD.

MR. WHEAT: THIRD ELEMENT.

MS. DEVINE: IT'S THE THIRD ELEMENT, WHERE IT SAYS

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THIRD, THE PROMISES OR STATEMENTS THAT WERE MATERIAL, THAT IS,

THEY WOULD REASONABLY INFLUENCE A PERSON TO PART WITH MONEY OR

PROPERTY. SO I THINK THAT --

THE COURT: I'M SORRY, WHAT WAS THAT INSTRUCTION?

WHAT NUMBER?

MR. WHEAT: WE HAVE THE OLD BOOK, TOO. 8.101.

THE COURT: GLENN, PRINT THAT OUT. I SENT THE ONLY

COPY I HAD INTO THE JURY. I'LL TELL YOU WHAT. READ IT TO ME

AND I'LL -- DOES ANYONE HAVE ANY PROBLEMS WITH MY USING THE

NINTH CIRCUIT ON THAT?

MR. SCOTT: ON MATERIALITY?

THE COURT: YEAH.

MR. SCOTT: I DON'T. BUT I DO WANT THE RECORD TO

REFLECT MY EARLIER OBJECTIONS AND RECORD AS TO THE FIDUCIARY

ISSUE.

THE COURT: I THOUGHT YOU WERE THE ONE THAT WANTED ME

TO GIVE THE FIDUCIARY INSTRUCTION?

MR. SCOTT: INITIALLY, UNTIL THE GOVERNMENT DISAVOWED

AND SAID THEY WERE ONLY DOING AFFIRMATIVE MISREPRESENTATION.

AND THEN I SAID WE OUGHT TO INSTRUCT THEM THAT THERE IS NOT A

FIDUCIARY BASED ON THE GOVERNMENT'S POSITION AND ON THE STATE

OF THE RECORD.

THE COURT: OKAY. MR. ADAMS?

MR. ADAMS: ME, TOO, YOUR HONOR.

THE COURT: OKAY. ALL RIGHT. DO ME A FAVOR, BRING

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THE JURY IN.

(JURY ENTERS COURTROOM.)

THE COURT: ALL RIGHT. WELCOME BACK.

LET'S SEE, I HAVE A QUESTION FROM YOU THAT SAYS, WE

INITIALLY ASKED YOU IF THE 5 PERCENT BACK-END FEE SHOULD BE

DISCLOSED, AND YOU TOLD US YES IF THERE WAS A FIDUCIARY

RELATIONSHIP. YOU SAID IT WAS UP TO US, THE JURY, TO DECIDE IF

THERE WAS A FIDUCIARY RELATIONSHIP. WE HAVE DECIDED IF THERE

WAS A FIDUCIARY RELATIONSHIP. NOW WE NEED REINSTRUCTION ON

WHAT IS MATERIAL.

LADIES AND GENTLEMEN, I GAVE YOU AN INSTRUCTION, I

BELIEVE, ON -- ENTITLED "MAIL FRAUD." AND IF YOU LOOK AT THAT

INSTRUCTION, YOU WILL SEE THAT IT SAYS THE FOLLOWING: PROMISES

OR STATEMENTS WERE MATERIAL IF THEY WOULD REASONABLY INFLUENCE

A PERSON TO PART WITH MONEY OR WITH PROPERTY. OKAY.

SO THAT IS -- SO THAT IS THE DEFINITION OF "MATERIALITY."

NOW THEN, YOU ALSO ASKED ME THE QUESTION, IF WE DECIDE

THAT THE JURY IS HUNG ON SOME OR ALL OF THE COUNTS, PLEASE

ADVISE -- PLEASE ADVISE HOW TO COMPLETE THE FORM.

WELL, IF THAT IS THE CASE, THEN YOU SHOULD FILL OUT THE

FORM AS TO THOSE COUNTS THAT YOU HAVE REACHED A VERDICT, JUST

AS I INSTRUCTED YOU A FEW DAYS AGO.

AS TO THOSE YOU MAY NOT BE ABLE TO REACH A VERDICT ON,

LEAVE THE SPACE BLANK WHERE IT SAYS, WE THE JURY FIND THE

DEFENDANT GUILTY/NOT GUILTY. LEAVE IT BLANK. AND GIVE US A

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NOTE THAT SAYS, WE REACHED A VERDICT ON SOME OF THE COUNTS, ARE

UNABLE TO REACH A VERDICT ON THE OTHER COUNTS. OKAY.

AND ONCE YOU'VE DONE THAT, IF YOU WOULD PLEASE RING THE

BUZZER AND LET MY BAILIFF KNOW, AND WE'LL TAKE CARE OF THAT.

IF THERE IS ANYTHING ELSE THAT I CAN DO TO HELP YOU,

PLEASE LET US KNOW. THANK YOU.

(JURY ENTERS DELIBERATION ROOM.)

THE COURT: ALL RIGHT, COUNSEL, WE'LL LET YOU KNOW

WHEN WE HEAR FROM THEM. WE'RE IN RECESS.

MR. ADAMS: YOUR HONOR, WILL THE JURY BE EXCUSED AT

4:00 TODAY?

THE COURT: YEAH, THEY WANTED TO BE EXCUSED AT 4:00.

SOMEBODY HAS A GRADUATION OR SOMETHING TO GO TO. WHEN IT GETS

PRETTY CLOSE TO 4:00, IF THEY HAVEN'T REACHED A VERDICT, I'LL

BRING THEM IN HERE, GIVE THEM THE ADMONITION FOR OVER THE

WEEKEND, AND HAVE THEM COME BACK MONDAY MORNING, AT 9:00 A.M.

MR. ADAMS: DID YOU WANT US HERE AT 4:00, THEN?

THE COURT: IT'S UP TO YOU. I DON'T NEED YOU, BUT IF

YOU WANT TO BE HERE, YOU'RE WELCOME TO BE HERE.

(RECESS TAKEN.)

THE CLERK: REMAIN SEATED AND COME TO ORDER. COURT

IS ONCE AGAIN IN SESSION.

THE COURT: OKAY. THE RECORD SHOULD REFLECT THAT

MR. SPANIER AND MR. MC CLAIN ARE PRESENT. COUNSEL IS PRESENT.

GOVERNMENT IS PRESENT.

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I HAVE A NOTE. THE NOTE SAYS: JUDGE, THE JURY HAS

COMPLETED ITS DELIBERATIONS.

I'M NOT SURE EXACTLY WHAT THAT MEANS. BUT I SUSPECT THEY

HAVE EITHER REACHED A VERDICT OR VERDICTS OR DECIDED THAT THEY

CANNOT REACH A VERDICT OR VERDICTS.

DOES ANYONE HAVE ANYTHING THAT WE NEED TO TALK ABOUT

BEFORE I BRING THEM IN? NO? OKAY.

BONNIE, CRAIG, PLEASE BRING THE JURY IN.

(JURY ENTERS COURTROOM.)

THE COURT: OKAY. WELL, WELCOME BACK, LADIES AND

GENTLEMEN. I HAVE A NOTE THAT SAYS, THE JURY HAS COMPLETED ITS

DELIBERATIONS.

IF YOU WOULD PLEASE DO ME A FAVOR, DELIVER THE ENVELOPE TO

MY BAILIFF, WHO WILL THEN HAND IT TO ME.

BONNIE, IF YOU WOULD DO ME A FAVOR, PLEASE TAKE THAT FROM

THE FOREPERSON.

VERDICT

THE COURT: ALL RIGHT. MR. MC CLAIN, IF YOU WOULD DO

ME A FAVOR, PLEASE STAND. I'LL HAVE MY COURTROOM DEPUTY READ

THE VERDICT.

THE CLERK: UNITED STATES DISTRICT COURT, SOUTHERN

DISTRICT OF CALIFORNIA, UNITED STATES OF AMERICA, PLAINTIFF,

VS. DOUGLAS MC CLAIN, JR., DEFENDANT, CASE NO. 12-CR-0918-BEN.

VERDICT: AS TO COUNT 1 OF THE INDICTMENT, WE THE JURY IN THE

ABOVE-ENTITLED CAUSE FIND THE DEFENDANT DOUGLAS MC CLAIN, JR.

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GUILTY OF CONSPIRACY, IN VIOLATION OF TITLE 18, UNITED STATES

CODE, SECTION 371.

AS TO COUNT 2 OF THE INDICTMENT, WE THE JURY IN THE

ABOVE-ENTITLED CAUSE, FIND THE DEFENDANT DOUGLAS MC CLAIN, JR.

GUILTY OF MAIL FRAUD, AND AIDING AND ABETTING, IN VIOLATION OF

TITLE 18, UNITED STATES CODE, SECTION 1341, AND TITLE 18,

UNITED STATES CODE, SECTION 2.

AS TO COUNT 3 OF THE INDICTMENTS, WE THE JURY IN THE








TITLE 18, UNITED STATES CODE, SECTION 1341, TITLE 18, UNITED

STATES CODE, SECTION 2.









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GUILTY OF WIRE FRAUD, AND AIDING AND ABETTING, IN VIOLATION OF











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TITLE 18, UNITED STATES CODE, SECTION 1343, TITLE 18, UNITED

STATES CODE, SECTION 2.



















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GUILTY OF WIRE FRAUD, AND AIDING AND ABETTING, VIOLATION OF




ABOVE-ENTITLED CAUSE FIND OF THE DEFENDANT DOUGLAS MC CLAIN,

JR. GUILTY OF WIRE FRAUD, AND AIDING AND ABETTING, IN VIOLATION

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OF TITLE 18, UNITED STATES CODE, SECTION 1343, AND TITLE 18,









JR. GUILTY OF WIRE FRAUD, AND AIDING AND ABETTING, IN VIOLATION

OF TITLE 18, UNITED STATES CODE, SECTION 1343, AND TITLE 18,




GUILTY OF SECURITIES FRAUD, IN VIOLATION OF TITLE 15, UNITED

STATES CODE, SECTION 78(J)(B) AND 78(F)(F).



JR. GUILTY OF MONEY LAUNDERING, AND AIDING AND ABETTING, IN

VIOLATION OF TITLE 18, UNITED STATES CODE, SECTION 1957, AND

TITLE 18, UNITED STATES CODE, SECTION 2.



GUILTY OF MONEY LAUNDERING, AND AIDING AND ABETTING, IN

VIOLATION OF TITLE 18, UNITED STATES CODE, SECTION 1957, AND

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GUILTY OF MONEY LAUNDERING, AND AIDING AND ABETTING, IN

VIOLATION OF TITLE 18, UNITED STATES CODE, SECTION 1957,


DATED MAY 31, 2013, SAN DIEGO, CALIFORNIA. SIGNED KENNETH

PAKENE, FOREPERSON OF THE JURY.

LADIES AND GENTLEMEN OF THE JURY, ARE THESE YOUR VERDICTS

AS PRESENTED AND READ AS TO THE DEFENDANT DOUGLAS MC CLAIN,

JR., SO SAY YOU ALL.

JURORS: YES.

THE COURT: MR. ADAMS, DO YOU WISH THE JURY POLLED?

MR. ADAMS: YES, SIR, I DO.

THE COURT: ALL RIGHT, IF YOU'D PLEASE BE SEATED.

THE CLERK: JUROR NO. 1, ARE THESE YOUR VERDICTS AS

PRESENTED AND READ?

JUROR NO. 1: YES.


PRESENTED AND READ?

JUROR NO. 2: YES.


PRESENTED AND READ?

JUROR NO. 3: YES.


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PRESENTED AND READ?

JUROR NO. 4: YES.


PRESENTED AND READ?

JUROR NO. 8: YES.


PRESENTED AND READ?

JUROR NO. 9: YES.


PRESENTED AND READ?

JUROR NO. 15: YES.


PRESENTED AND READ?

JUROR NO. 21: YES.


PRESENTED AND READ?

JUROR NO. 22: YES.


PRESENTED AND READ?

JUROR NO. 23: YES.


PRESENTED AND READ?

JUROR NO. 26: YES.


PRESENTED AND READ?

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JUROR NO. 29: YES.

THE CLERK: YOUR HONOR, THE JURY HAS BEEN POLLED.

THE COURT: ALL RIGHT. MR. SPANIER, IF YOU WOULD

PLEASE RISE.

GLENN, IF YOU WOULD PLEASE READ THE VERDICTS THAT WERE

REACHED.

THE CLERK: YES, YOUR HONOR.

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF

CALIFORNIA, UNITED STATES OF AMERICA, PLAINTIFF, VS. JEFFREY T.

SPANIER, DEFENDANT, CASE NO. 12-CR-0918-BEN. VERDICT: AS TO

COUNT 7 OF THE INDICTMENT, WE THE JURY IN THE ABOVE-ENTITLED

CAUSE FIND THE DEFENDANT JEFFREY T. SPANIER NOT GUILTY OF MAIL

FRAUD, AND AIDING AND ABETTING, IN VIOLATION OF TITLE 18,

UNITED STATES CODE, SECTION 1341, AND TITLE 18, UNITED STATES

CODE, SECTION 2.


ABOVE-ENTITLED CAUSE FIND THE DEFENDANT JEFFREY T. SPANIER NOT









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DATED MAY 31, 2013, SAN DIEGO, CALIFORNIA, SIGNED KENNETH

PAKENE, FOREPERSON OF THE JURY.

LADIES AND GENTLEMEN OF THE JURY, ARE THESE YOUR VERDICTS

AS PRESENTED AND READ AS TO THE DEFENDANT JEFFREY T. SPANIER,

SO SAY YOU ALL?

JURORS: YES.

THE COURT: MR. SCOTT, DO YOU WANT THE JURY POLLED?

MR. SCOTT: NO THANK YOU, YOUR HONOR.

THE COURT: THANK YOU. YOU MAY BE SEATED.

DOES THE GOVERNMENT WANT THE JURY POLLED?

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MS. DEVINE: NO, YOUR HONOR.

THE COURT: ALL RIGHT. WELL, LADIES AND GENTLEMEN,

THANK YOU VERY MUCH. I HAVE SOME GOOD NEWS AND SOME BAD NEWS

TO GIVE YOU. HERE IS THE GOOD NEWS. THE GOOD NEWS IS THAT YOU

SAID YOU WANTED TO BE OUT OF HERE BY 4:00 TODAY, AND I'M GOING

TO BE PRETTY CLOSE TO THAT.

NOW THE BAD NEWS IS THAT I'M GOING TO ASK THAT YOU COME

BACK ON TUESDAY MORNING, AT 9:00 A.M. THERE IS A SECOND

PORTION OF THIS CASE THAT HAS TO BE TRIED BEFORE YOU THAT COULD

NOT BE TRIED AT THE SAME TIME AS THE FIRST PART OF THE CASE.

SO WHEN YOU COME BACK ON TUESDAY MORNING, YOU WILL BE HEARING I

SUSPECT RELATIVELY BRIEF EVIDENCE. THE ATTORNEYS WILL THEN

DELIVER SUBSEQUENT CLOSING ARGUMENTS, AND THEN WE WILL SEND YOU

BACK FOR DELIBERATIONS, OKAY.

WITH THAT, I DO WANT TO REMIND YOU, IT IS EXTREMELY

IMPORTANT THAT YOU NOT DISCUSS THE CASE AMONG YOURSELVES, OR

WITH ANYONE, AFTER THIS, AFTER I LET YOU GO. OKAY.

PLEASE DO NOT DO ANY RESEARCH. DO NOT BLOG. DO NOT

TWITTER. DO NOT FACEBOOK. DON'T GO LOOKING ON THE INTERNET.

DON'T GO READING ANY NEWS ACCOUNTS OF THE CASE OR LISTENING TO

ANY NEWS REPORTS OF THE CASE.

PLEASE CONTINUE TO HAVE AN OPEN MIND, OKAY.

SO WITH THAT, I'M GOING TO SEND YOU HOME. AND AGAIN, I

WOULD ASK THAT YOU BE OUT THERE PROMPTLY AT 9:00 ON -- I'M

SORRY, WAIT, I HAVE SOMETHING ON TUESDAY. WHAT TIME?

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THE CLERK: 9:00 AND 9:30.

THE COURT: I'LL ASK YOU TO BE BACK AT 10:00, NOT

9:00, OKAY. 10:00 ON TUESDAY. ALL RIGHT. THANK YOU.

COUNSEL, IF YOU'D PLEASE REMAIN.

(JURY EXITS COURTROOM.)

THE COURT: ALL RIGHT, I BELIEVE THAT ALL JURORS HAVE

LEFT THE COURTROOM.

LET'S SEE, A COUPLE THINGS. I GUESS ON TUESDAY MORNING,

WE WILL START WITH THE FORFEITURE ASPECTS OF THE CASE, WHICH I

BELIEVE THE DEFENSE ASKED FOR A JURY VERDICT -- I MEAN ASKED

FOR -- YEAH, FOR A JURY VERDICT ON THAT ISSUE. I ASSUME THAT

IS STILL YOUR DESIRE, MR. ADAMS?

MR. ADAMS: IT IS, YOUR HONOR.

THE COURT: OKAY. SO WE WILL HAVE YOU BACK HERE AT

10:00 A.M. ON TUESDAY MORNING. NOW I'M GOING TO SET A

SENTENCING DATE AND A MOTIONS HEARING DATE FOR SEPTEMBER 9TH,

AT 9:00 A.M. PLEASE MAKE SURE THAT ALL MOTIONS ARE FILED IN

ACCORDANCE WITH OUR LOCAL RULES. I BELIEVE THAT THERE WAS A

RULE 29 MOTION THAT WAS SUBMITTED. THAT MOTION IS DENIED. I

BELIEVE THAT THE EVIDENCE WAS OVERWHELMING AND MORE THAN ENOUGH

FOR A REASONABLE JURY TO RETURN A GUILTY VERDICT BEYOND A

REASONABLE DOUBT.

WITH REGARDS TO MR. SPANIER, I ALWAYS THOUGHT THAT THIS

CASE WOULD BE MUCH CLOSER AS TO MR. SPANIER; HOWEVER, I DO

BELIEVE, FOR THE REASONS THAT I INDICATED PREVIOUSLY, THAT

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THERE IS SUFFICIENT EVIDENCE FOR A REASONABLE JURY TO RETURN A

GUILTY VERDICT BEYOND A REASONABLE DOUBT.

NOW WITH REGARDS TO MR. SPANIER, I DON'T KNOW IF THE

DEFENSE IS GOING TO RETRY THIS OR NOT OR WHAT YOUR PLEASURE IS.

DO YOU NEED ADDITIONAL TIME TO DECIDE, OR WHAT WOULD YOU LIKE

FOR ME TO DO? I CAN SET IT FOR -- WELL, WHAT IS IT THE

GOVERNMENT WANTS TO DO?

MS. DEVINE: WE WERE THINKING OF A RETRIAL DATE IN

SEPTEMBER.

THE COURT: OKAY. MR. SCOTT, IS SEPTEMBER OKAY WITH

YOU? DO YOU HAVE ANY --

MR. SCOTT: I HAVE A -- I HAVE A PRE-PLANNED

VACATION, STARTING ON THE -- ON SATURDAY THE 21ST, THAT

CORRESPONDS WITH MY CHILDREN'S FALL BREAK. AND THAT'S THE

PROVERBIAL PREPAID TICKETS AND EVERYTHING. THAT IS TWO WEEKS,

STARTING SEPTEMBER 21ST. IF IT'S EARLIER IN SEPTEMBER, THEN

I'M AT THE COURT'S SERVICE.

THE COURT: I COULD GET YOU INTO A LOT OF TROUBLE IF

I INSISTED THAT WE HAVE A TRIAL OVER THE WEEK OF THE 21ST,

RIGHT?

MR. SCOTT: I'M SCARED OF YOUR HONOR, BUT I'M

TERRIFIED OF MY WIFE, SO --

THE COURT: OKAY. MR. WHEAT?

MR. WHEAT: IN LIGHT OF THAT, AND NOT WANTING TO

IMPINGE ON MR. SCOTT'S VACATION, OR SOME PERIOD THEREAFTER, IF

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THE COURT WANTED TO PLACE IT SOMETIME IN OCTOBER, WE HAVE NO

OPPOSITION TO THAT.

THE COURT: MR. SCOTT?

MR. SCOTT: THAT WOULD BE OUTSTANDING, YOUR HONOR.

PERHAPS MID-OCTOBER ON, I'M WIDE OPEN.

THE COURT: GLENN, DO ME A FAVOR, GET ME MY TRIAL

CALENDAR, PLEASE.

CAN I ASK, NOW THAT WE'VE HEARD ALL THIS EVIDENCE, DOES

THE GOVERNMENT HAVE ANY IDEA HOW LONG YOUR CASE -- IF YOU RETRY

THIS, HOW LONG IT WILL TAKE YOU TO PUT ON YOUR CASE.

MR. WHEAT: I WOULD SAY APPROXIMATELY WHAT IT TOOK IN

THIS CASE, YOU KNOW, FOUR TO FIVE DAYS.

THE COURT: OKAY.

MR. WHEAT: IF YOU LOOK AT THE COUNTS OF ACQUITTAL,

THOSE ARE COUNTS DEALING WITH MR. MICELI AND THE MICELI WIRES.

SO I DON'T SEE THAT MATERIALLY ALTERS THE EVIDENCE AGAINST

MR. SPANIER.

THE COURT: THE REASON I'M ASKING IS, I'M PRETTY SURE

THAT I HAVE THE MDL CONFERENCE, WHICH IS SCHEDULED -- I THINK

IT IS EITHER THE THIRD OR FOURTH WEEK IN OCTOBER. SO I'M

PRETTY MUCH OUT OF HERE THAT WEEK.

MR. WHEAT: YOU WANT TO DO IT ON YOUR RETURN, THAT IS

FINE WITH US.

THE COURT: NO, NO. HOW ABOUT IF WE SET A

TRIAL-SETTING CONFERENCE A WEEK OR TWO OR WHATEVER YOUR

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PLEASURE MAY BE. I'LL FIND -- UNLESS YOU WANT TO TAKE A BREAK

RIGHT NOW. IF YOU WANT TO TAKE A BREAK, I COULD PROBABLY

FIGURE OUT THE DATE OF THAT CONFERENCE PRETTY QUICKLY. I NEED

TO GO BACK TO MY CHAMBERS AND LOOK.

MR. SCOTT: THIS IS JUST A SUGGESTION, YOUR HONOR.

BUT IT STRIKES ME THAT OFTEN TIMES, RETRIALS AND WHETHER THERE

IS A RETRIAL AND NEGOTIATIONS IN THE INTERIM OFTEN DEPEND ON

THE NUMERICAL DIVIDE OF THE JURY. PERHAPS IF WE SET A STATUS

FOR AFTER THE SMOKE HAS CLEARED, AND AFTER THE FORFEITURE

PROCEEDINGS FOR MR. MC CLAIN HAVE TAKEN PLACE, PERHAPS THE

PARTIES MIGHT HAVE MORE COLLECTIVE INSIGHT ON HOW TO PROCEED.

I'M NOT TRYING TO GET AHEAD OF MYSELF, I JUST THINK WE MIGHT

HAVE MORE INFORMATION --

THE COURT: YOU WANT ME TO HOLD OFF SETTING A DATE

FOR RETRIAL; IS THAT WHAT YOU'RE SAYING?

MR. SCOTT: THAT IS MY SUGGESTION. PERHAPS IF WE SET

A STATUS IN A WEEK OR TEN DAYS, AFTER THE SMOKE CLEARS FROM THE

JURY, IT MIGHT BE A MORE FRUITFUL DISCUSSION, IS MY SUGGESTION.

THE COURT: WHY DON'T WE SET A STATUS TRIAL-SETTING

CONFERENCE IN TWO WEEKS.

MR. WHEAT: THE 10TH, JUNE 10TH?

THE COURT: YEAH, THAT WOULD WORK FOR ME.

HOW ABOUT YOU, MR. SCOTT?

MR. SCOTT: IT WOULD, YOUR HONOR. COULD I APPEAR FOR

MR. SPANIER? COULD I WAIVE HIS PRESENCE FOR THAT? HE'S BEEN

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IN A HOTEL, AND JUST THE EXPENSE ALONE HAS BEEN VERY DAMAGING

TO HIM AND HIS FAMILY.

THE COURT: ANYBODY HAVE ANY OBJECTION?

MR. WHEAT: NONE.

THE COURT: AS LONG AS YOU FILE AN ACKNOWLEDGMENT OF

RECEIPT OR ACKNOWLEDGMENT OF APPEARANCE WITHIN A WEEK --

MR. SCOTT: WE'LL DO THAT.

THE COURT: -- OF MY SETTING A TRIAL DATE; OTHERWISE,

I'LL ISSUE A BENCH WARRANT FOR HIS ARREST. AGREED?

MR. SCOTT: NO, WE'LL TAKE CARE OF IT, YOUR HONOR.

THE COURT: ALL RIGHT. IN THAT CASE, IS THERE

ANYTHING WE NEED TO ADDRESS AT THIS TIME?

MR. SCOTT: YOUR HONOR, I THINK THIS IS IMPLICIT IN

THE WAY THIS UNFOLDED, BUT I WOULD ASK THAT YOUR HONOR FORMALLY

DECLARE A MISTRIAL FOR THE COUNTS THEY DID NOT REACH A VERDICT

ON.

THE COURT: OKAY. ALL RIGHT. GOOD. DONE.

ANYTHING ELSE? IF NOT, THANK YOU. APPRECIATE IT.

MR. WHEAT: THANK YOU, YOUR HONOR.

THE COURT: MR. ADAMS, MR. MC CLAIN, WE'LL SEE YOU

NEXT WEEK.

MR. ADAMS: THANK YOU, YOUR HONOR.

(RECESS AT 4:06 P.M.)

---000---

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PLAINTIFF,

V.

JEFFREY SPANIER,

DEFENDANT.. . . . . . . . . . . . . . . .

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NO. 12-CR-0918

JUNE 10, 2013

2:45 P.M.


TRANSCRIPT OF STATUS HEARINGBEFORE THE HONORABLE ROGER T. BENITEZ


APPEARANCES:

FOR THE PLAINTIFF: U.S. ATTORNEY'S OFFICESOUTHERN DISTRICT OF CALIFORNIABY: MICHAEL WHEAT, ESQ.BY: TODD ROBINSON, ESQ.880 FRONT STREET, ROOM 6293SAN DIEGO, CALIFORNIA 92101

FOR THE DEFENDANT: LAW OFFICE OF TIMOTHY A. SCOTTBY: TIMOTHY A. SCOTT, ESQ.1350 COLUMBIA STREET, SUITE 600SAN DIEGO, CALIFORNIA 92101

COURT REPORTER: DEBORAH M. O'CONNELL, RPR, CSR333 W. BROADWAY, ROOM 420SAN DIEGO, CALIFORNIA, 92101


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ALL RIGHT, LET'S GET BACK TO ISSUE NO. 1. MY RECOLLECTION

IS THAT THE JURY INDICATED THAT ON AVERAGE, THEY WERE LEANING

NINE-THREE FOR CONVICTION ON THE COUNTS THAT THEY DID NOT

ACQUIT MR. SPANIER.

DOES THAT MEAN, MR. WHEAT, THAT THE GOVERNMENT WILL BE

RETRYING THIS CASE?

MR. WHEAT: ABSOLUTELY.

THE COURT: ALL RIGHT. SO THEN WE NEED TO SET A

TRIAL DATE ON THIS CASE. AND I SEEM TO RECALL, IF MY MEMORY

SERVES ME RIGHT, THAT WE WERE TALKING ABOUT SOMETIME IN

SEPTEMBER, BUT I DON'T KNOW -- AM I NOT -- NO?

MR. WHEAT: NO. I THINK WITH THE SCHEDULES, IT WAS

LATE OCTOBER, EARLY NOVEMBER, IS WHERE, I THINK, WE LEFT IT.

THE COURT: OKAY.

MR. SCOTT: AND THOSE DATES REMAIN FINE WITH ME, YOUR

HONOR.

THE COURT: OKAY, LET'S DO THE FIRST WEEK OF OCTOBER.

MR. SCOTT: I AM UNAVAILABLE UP UNTIL FRIDAY,

OCTOBER 4TH. BUT ANY TIME AFTER THAT, I WILL SWEEP EVERYTHING

ELSE ASIDE, AND I'M WILLING TO RETRY THIS ANY TIME THE COURT

WANTS AFTER OCTOBER 4TH.

THE COURT: CAN WE ANTICIPATE -- WELL, FIRST OF ALL,

LET ME ASK THIS: MR. WHEAT, DOES THE GOVERNMENT REALLY INTEND

TO TRY ALL OF THE COUNTS? I MEAN, IT IS REALLY -- I REMEMBER

JUDGE TURRENTINE ONCE SAYING, PICK YOUR THREE BEST AND TRY YOUR

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LITIGATE THE MERITS OF THIS, BUT IF THAT IS THE HEART OF THE

CONCERN THAT -- I FEEL COMFORTABLE GOING FORWARD WITH THIS

MOTION. THAT DOESN'T SEEM TO RISE TO THE LEVEL OF HAVING AN

FBI AGENT AT MR. BRADDICK'S DOOR. I'D LEAVE IT AT THAT.

THE COURT: WELL, WHATEVER. OKAY, GOOD. ALL RIGHT.

SO I THINK WE NEED TO SET A TRIAL DATE. AND I DISCOVERED

THAT I HAVE AN MDL CONFERENCE; IT IS THE WEEK OF THE 28TH AND

THE 30TH. SO WHEN DID YOU SAY YOU WERE GOING TO BE BACK,

MR. SCOTT?

MR. SCOTT: I'M AVAILABLE AGAIN -- ON OCTOBER 4TH, I

WILL BE BACK. I THINK THAT IS A FRIDAY. SO BEGINNING THE NEXT

WEEK, THIS CASE IS THE FIRST PRIORITY. I'LL MAKE ANY DAY --

THE COURT: OCTOBER 7TH WILL BE MOTIONS IN LIM.

TRIAL WILL START OCTOBER 8TH. IT WILL START AT 9:30 A.M.,

OKAY. PLEASE PLAN TO BE HERE OCTOBER 7TH, AT 2:00 P.M. PLEASE

MAKE SURE THAT -- WE HAVE NOW TRIED THIS CASE ONCE. LET'S MAKE

SURE WE DON'T WAIT UNTIL THE TRIAL TO ADDRESS EVIDENTIARY

ISSUES THAT COULD BE ANTICIPATED WITH ANY REASONABLE DUE

DILIGENCE BEFORE WE GET TO THE TRIAL SO THAT WE CAN MINIMIZE

THE NUMBER OF BREAKS THAT WE HAVE TO TAKE AND TO HAVE THE JURY

SITTING AROUND WAITING FOR US, OKAY. I'D APPRECIATE IT.

LIKEWISE, I'D APPRECIATE THAT IF THERE ARE ANY OTHER JURY

INSTRUCTIONS THAT I HAVEN'T ALREADY SEEN THAT SOMEBODY WANTS TO

PROPOSE, PLEASE MAKE SURE THAT I GET THEM NO LATER THAN TWO

WEEKS BEFORE THE DATE OF THE TRIAL, OKAY. THANK YOU.

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ALL RIGHT, GLENN, DO ME A FAVOR, PLEASE MAKE A COPY OF ALL

OF THIS FOR -- THERE YOU GO.

(RECESS AT 3:45 P.M.)

---000---

C-E-R-T-I-F-I-C-A-T-I-O-N

I HEREBY CERTIFY THAT I AM A DULY APPOINTED,

QUALIFIED AND ACTING OFFICIAL COURT REPORTER FOR THE UNITED

STATES DISTRICT COURT; THAT THE FOREGOING IS A TRUE AND CORRECT

TRANSCRIPT OF THE PROCEEDINGS HAD IN THE AFOREMENTIONED CAUSE;

THAT SAID TRANSCRIPT IS A TRUE AND CORRECT TRANSCRIPTION OF MY

STENOGRAPHIC NOTES; AND THAT THE FORMAT USED HEREIN COMPLIES

WITH THE RULES AND REQUIREMENTS OF THE UNITED STATES JUDICIAL

CONFERENCE.

DATED: JUNE 27, 2013, AT SAN DIEGO, CALIFORNIA

_________________________________S/DEBORAH M. O'CONNELL, CSR #10563REGISTERED PROFESSIONAL REPORTER

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PLAINTIFF,

V.

JEFFREY SPANIER,

DEFENDANT.. . . . . . . . . . . . . . . .

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NO. 12-CR-0918

DECEMBER 2, 2013

2:44 P.M.


TRANSCRIPT OF MOTION IN LIMINE HEARING



APPEARANCES:




BY: FAITH DEVINE, ESQ.



FOR THE DEFENDANT: LAW OFFICES OF TIMOTHY A. SCOTT



COURT REPORTER: DEBORAH M. O'CONNELL, RPR, RMR, CSR




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WHEN I SAW IT, I THOUGHT, MY INITIAL REACTION WAS, OH, MY

GOSH, SO ON THE ONE HAND, WE'RE BEING ASKED TO SET TRIAL IN A

SPEEDY FASHION; ON THE OTHER HAND, IT SEEMS TO ME IF I WAS THE

DEFENDANT, I WOULD WANT TO BE ABLE TO MAKE SURE I WAS ABLE TO

ADEQUATELY AND COMPETENTLY DEFEND THOSE CLAIMS.

AND I THINK THAT KIND OF TIES INTO THE COMPLEXITY.

BECAUSE THE CASE WAS COMPLEX BEFORE, BUT NOW YOU'VE ADDED THIS

LITTLE -- I'LL CALL IT "LITTLE." I DON'T KNOW HOW LITTLE IT

IS. BUT YOU'VE ADDED THIS WRINKLE TO THE CASE, WHICH SEEMS TO

MAKE THE CASE EVEN MORE COMPLEX. I DON'T KNOW.

MS. DEVINE: ONCE AGAIN, YOUR HONOR, YOU HAVE

ARTICULATED, I THINK, THE POSITION VERY WELL, AND I DON'T NEED

TO REPEAT IT. THAT IS EXACTLY THE REASON WHY THE CASE IS

COMPLEX AND WHY THERE NEEDED TO BE THIS ADDITIONAL TIME. THE

COMMENT ABOUT, THE INTRODUCTION OF THIS NEW ENTITY IS REALLY --

IT'S NOT -- IT'S ACTUALLY TWO ENTITIES. AND ONE OF THE

ENTITIES WAS AN ENTITY THAT MR. SPANIER CREATED WITH MR. BELLO,

AND IT USES THE AMERIFUND NAME.

THERE WAS MENTION OF THIS OTHER LENDER IN THE FIRST TRIAL.

SO IT'S NOT SOMETHING NEW, BUT IT'S JUST THAT THERE HAS BEEN

SOME ADDITIONAL DISCOVERY AS A RESULT OF THE OTHER WITNESS

AGREEING TO TESTIFY. BECAUSE BEFORE, WE DID NOT HAVE AN

IMMUNITY OR ANY TYPE OF AGREEMENT IN PLACE FOR THIS WITNESS TO

TESTIFY.

NOW THAT HE HAS AGREED -- WHICH, MR. SCOTT IS CORRECT,

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THAT THIS HAPPENED WITHIN THE LAST 30 DAYS. AS SOON AS IT

HAPPENED, WE DID NOTIFY HIM. I TOLD HIM --

THE COURT: I SEE. SO THAT IS WHAT CAUSED YOUR

DELAY, WAS GETTING THE IMMUNITY FROM --

MS. DEVINE: EXACTLY.

THE COURT: I WAS WONDERING ABOUT THAT. I WAS

WONDERING, WHY IN THE WORLD DID THEY WAIT ALL THIS TIME. WE

COULD HAVE GOTTEN THIS RESOLVED A LOT SOONER. OKAY.

LET ME ASK A QUESTION. WHY COULDN'T YOU SPLIT THE COUNTS

TO ALLEGE -- BECAUSE MR. SCOTT IS ALLEGING THIS DUPLICITY. WHY

COULDN'T YOU SPLIT THAT COUNT INTO TWO COUNTS, AND IF YOU DID

THAT -- LET ME JUST -- I'M KIND OF THINKING OUT LOUD HERE. BUT

IF YOU DID THAT, THEN YOU WOULD HAVE A NEW COUNT, RIGHT? AND

THE NEW COUNT IS BASED ON NEW FACTS, AND, THEREFORE, DOESN'T

THE SPEEDY TRIAL CLOCK BEGIN TO RUN AT LEAST AS TO THAT COUNT?

SO EVEN IF, IN FACT, I WERE TO SAY, I'M GOING TO DENY

MR. SCOTT'S MOTION, UNDER -- TO DISMISS ON THE SPEEDY TRIAL

CLOCK GROUNDS, BUT IF YOU SPLIT THE COUNTS, IF I'M WRONG AS TO

PART OF THE COUNTS, I PROBABLY WOULD BE RIGHT AS TO PART OF THE

COUNTS AS WELL, RIGHT? BECAUSE IT ALLEGES NEW FACTS, NEW

INDIVIDUALS, NEW POSSIBLE WITNESSES, AND THERE WOULD BE A NEW

SPEEDY TRIAL CLOCK STARTING FROM THERE, WOULDN'T THERE?

MS. DEVINE: I UNDERSTAND YOUR POSITION. I JUST

DON'T BELIEVE THERE ARE TWO CONSPIRACIES HERE. WHAT WE HAVE

IS, ONE PERSON THAT IS REPRESENTING TO THE PUBLIC THAT HE IS

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PLAINTIFF,

V.

JEFFREY T. SPANIER,

DEFENDANT.

. . . . . . . . . . . . . . . .

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NO. 12-CR-0918

DECEMBER 11, 2013

9:06 A.M.


TRANSCRIPT OF JURY TRIAL, DAY 2



APPEARANCES:




BY: FAITH DEVINE, ESQ.



FOR THE DEFENDANT: COLEMAN, BALOGH & SCOTT, LLP



COURT REPORTER: DEBORAH M. O'CONNELL, RPR, RMR, CSR




Case 3:12-cr-00918-JM Document 398 Filed 08/18/14 Page 1 of 278Case 3:12-cr-00918-JM Document 445-6 Filed 04/04/16 Page 2 of 40


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