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Case 7:16-cr-00259-CS Document 109 Filed 04/07/17 Page 1 of 5

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Honorable Cathy Seibel

United States Magistrate Judge Via ECF
United States Courthouse .

300 Quarropas Street

White Plains, New York 10601-4150

Re: United States v. Christopher St. Lawrence
16 CR 259 (CS)

Dear Judge Seibel:

I write to alert the Court to Brady violations by the Government that we have recently
discovered. One of these violations was hidden in the mountain of data that the Government
delivered to us as ?3500 material and the other we only learned about from a source independent
of the Government. The exculpatory nature of this evidence is so apparent that its suppression by
the Government can only be viewed as an intentional, tactical move rooted in its goal to secure a
conviction at all costs, even if it must deprive Mr. St. Lawrence of his constitutional right to a fair
trial and properly mount a defense in the process.1

We very recently learned that the auditors responsible for preparing and auditing the Town
of Ramapo and Ramapo Local Development Corporation?s ?nancial statements submitted a White
Paper to the SEC in response to a Wells Notice that is clearly exculpatory and favorable to the
defense. The White Paper outlines precisely why key elements of the Government?s case fail.
Specifically, it explains why 1) the $3.08 receivable from the RLDC was a bona ?de asset of the
Town; (2) the transfers from the Ambulance Fund to the General Fund were not improper; (3) the
FEMA reimbursement was properly recorded. We also learned that the auditors gave favorable
Grand Jury testimony. The Government has continued to suppress this evidence to date. We have
not received either the White Paper or the Grand Jury transcripts from the Government.

 

1 ?The United States Attorney is the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be
done.? Berger v. United States, 295 US. 78, 88 (1935).

Case 7:16-cr-00259-CS Document 109 Filed 04/07/17 Page 2 of 5

We have just received Brady material related to Edward K. (aka Ned and
Jefferies LLC the underwriters of six of the eight bonds at issue that was suppressed up until
late Wednesday afternoon when the Government produced it as ?3500 material. The Government
produced ?3500 material for Mr. that includes (1) Wells Notice from the SEC to Mr. 
regarding a proposed enforcement action against Mr. (2) Joint Wells Submissions on behalf
of Jefferies and Mr. wherein it is repeatedly stated that the $3.66 million receivable and the
FEMA receivable 2 key elements of the Government?s case were immaterial and the inclusion
of these receivables in the Town?s General Fund balance was not misleading to investors; and (3)
a letter from the SEC stating that it has concluded its investigation and will not be recommending
an enforcement action against Mr. Evidence that the underwriters viewed these receivables
as immaterial and not misleading is obviously exculpatory, as is the fact that the SEC ultimately
decided not to prosecute Mr. This is not merely ?impeachment Brady? bearing on witness
credibility. See, e. 3., United States v. Abakporo, 959 F. Supp. 2d 382, 395 (S.D.N.Y. 2013)
(discussing ?impeachment Brady? and ?exculpatory Brady?).

The suppressed efferies evidence negates an element necessary for the Government?s case
materiality and, thus, is exculpatory under Brady. See, e. g, United States v. Triumph Capital
Gm, Inc. 544 F.3d 149, 161m62, 164 (2d Cir. 2008) (Agent?s proffer notes supported an
alternative version of the events and tended to negate the intent element of the bribery charges and,
thus, suppression of notes deprived defendant of exculpatory evidence in violation of Brady). The
fact that the SEC accepted the underwriters? argument as to materiality in declining to bring a civil
enforcement action against them begs the question what we are doing here. The White Paper is
similarly exculpatory as it differs from the Government?s version of events and is relevant to, inter
alia, intent. See id. at 162 (?The difference between the government's ?nal version of events and
the version supported by [the witness?s] initial proffer, which was suppressed, is directly relevant
to the intent element of the consulting contract bribe charges?).

The Department of Justice requires federal prosecutors to disclose exculpatory information
?reasonably after .it is discovered.? .S. Dep?t of Justice, U.S. Attorneys? Manual 
5.001 available at ustice. 000-issues?related?trials-and-
other?court?proceedings (last visited April 7, 2017). The Government violated this mandate. The
Government also represented to this Court more than once that it has complied with its Brady
obligations. See Government?s Memorandum of Law in Opposition to the Defendants? Pretrial
Motions, dated 10-18-16, [Dkt No. 43] at 2 (affirmatively stating it ?has disclosed all
Brady information now known to it, all without regard to materiality?); Exhibit A hereto
(Transcript of Decision on Pretrial Motions, dated 11?3?16) at p. 60, lines 12~19;

We?ve turned over all the documents although with respect to some of the Brady,
what I ?ll term the more interesting Brady it?s fairly obvious. I?m turning over SEC
testimony that I otherwise wouldn?t have turned over, in fact we fought turning
over. I?m turning that over. It must be under a Brady theory. I?m turned over pages
with grand jury transcripts. I wouldn?t be turning that over but for Brady. So I think
they can figure it out if they look at it.

See also Exhibit hereto (Transcript of Pretrial Conference, dated April 3, 2017) at p. 40, lines
14?16 (?We turned over portions of SEC transcripts as Brady or Brady-ish, but now they'll get the

Case 7:16-cr-00259-CS Document 109 Filed 04/07/17 Page 3 of 5

rest of it that didn't fall within 

Although the Supreme Court has not adopted a bright-line rule as to the timing of Brady
disclosures, it is well?settled that the disclosure must be made in suf?cient time to allow the
defense an opportunity to make effective use of the evidence in preparing or presenting its case.
See, eg, Leka v. Portuondo, 257 F.3d 89, 100, 103 (2d Cir. 2001). See also United States v. Polisi,
416 F.2d 573, 577 (2d Cir. 1969) (?The importance of Brady, then, is its holding that the concept
out of which the constitutional dimension arises in these cases, is meiudice to the defendant
measured by the effect of the suppression upon defendant's preparation for trial, rather than its
effect upon the jury?s verdict?) (emphasis added).

?The opportunity for use under Brady is the opportunity for a responsible lawyer to use the
information with some degree of calculation and forethought.? Leka, supra, 257 F.3d at 103. See
also St. Germain v. United States, No. 03 CV 2004 WL 1171403, at *3 (S.D.N.Y. May
11, 2004) (?Brady requires disclosure of the material exculpatory evidence early enough so that
the defense can make use of the information?) (citing Leka, 257 F.3d 889). ?[D]efense strategies
are largely formed prior to trial and that, in light of those strategies,? and ?the necessary predicate
is that the strategies selected were chosen after careful consideration of all constitutionally?
compelled disclosure.? Id. at *18 (citations omitted). No such careful consideration exists when
the Government suppresses Brady evidence as they have and continue to do here. See id.

In St. Germain, the Government disclosed the Brady material immediately prior to trial,
under the guise of Jenks Act material. 1d. at 11. The court found ?the belated and confusingly
labeled disclosure came at a time when the defense was unlikely to be able to divert resources from
other initiatives, and when other matters might well have seemed more pressing? and that ?the
material could have led to speci?c exculpatory information only if the defense undertook further
investigation?man investigation that ?would have been of limited usefulness unless the prosecution
was prepared to disclose what it knew about [the evidence].? Id. at *17 (citing Leka, 257 F.3d at
103).

Here, similarly, the Government has disclosed exculpatory Brady evidence under the guise
of Jenks Act material and this belated disclosure is insuf?cient to allow the defense an adequate
opportunity to prepare and make effective use for it at the trial set to commence in 12 short days.
Evidence that underwriters efferies and Mr. represented that two of the receivables that the
Indictment charges misled investors were immaterial and did not mislead investors is clearly
exculpatory, as is evidence that the SEC declined to prosecute Mr. based on his Wells
Submissions. 9

Even more egregious is the Government?s continued suppression of Brady evidence from
the auditors the White Paper submitted to the SEC and Grand Jury testimony. The auditors
submitted a White Paper on January 28, 2016 and testified before the Grand Jury prior to
indictment. The Government?s continued suppression of this exculpatory and favorable evidence
constitutes a violation of its Brady obligations. See Leka, supra, 257 F.3d at 100 (?There is no
doubt that the prosecutor had that information from the beginning of the And it is clear that
the information was favorable to the defense. So there is really no question but that the government
suppressed information that it was required to turn over?). With the failure to disclose this

Case 7:16-cr-00259-CS Document 109 Filed 04/07/17 Page 4 of 5

exculpatory evidence, Mr. St. Lawrence is obviously very concerned about other exculpatory and
favorable evidence that the Government continues to suppress.

Because of the volume of materials disclosed in this case, our opportunity to effectively
use the very recently discovered Brady evidence in preparing and presenting our case is severely
prejudiced. Further investigation is necessary in order to adequately prepare and present a defense.
We have had approximately 2 million pages produced to date, and over 52 hours of recordings.
Late Wednesday afternoon we received an additional 3,882 pages and approximately 24 hours of
audio recordings, 16.25 hours of which was new audio, under the guise of ?3500 material, which
included Brady that was wrongfully suppressed. The Government is playing close to the vest. And
if you play too close to the vest, you do so at your own peril.

We believe there is more Brady evidence like what we recently uncovered that is being
wrongfully suppressed in violation of Mr. St. Lawrence?s constitutional rights. We know that there
is SEC testimony of an unindicted coconspirator, the bond counsel, which has not been
disclosed. And we believe that other underwriters were likely given Wells Notices and submitted
responses or white papers to the SEC just as efferies and Mr. did. Bond counsel likely also
made such a submission. Simply because the Government may not intend to call these individuals
as witnesses is irrelevant. This evidence is still Brady. The Government should be ordered to
produce all Wells Notices and submissions in reSponse thereto and all other Brady material
immediately.

This is not the first time where the US Attorney?s Of?ce has been guilty of belated Brady
disclosures. See, e. g, St. Germain, supra, 2004 WL 1171403, at *1 (motion for new trial ?raises
squarely the implications of common practices in the United States Attorney's Office: disclosing
evidence at the last possible moment prior to trial and cutting the ?nest possible lines in
determining the materiality and cross-availability of arguably exculpatory evidence for Brady
purposes?). Nor is this the ?rst time where the Brady violation stems from evidence that was
provided to the SEC and not disclosed to the criminal defendant. See United States v. Maha??v,
No. 2010 WL 2925952, at *1 (E.D.N.Y. July 21, 2010), vacated, 693 F.3d 113
(2d Cir. 2012) (vacating conviction for Brady violation from failure to disclose SEC testimony).
Just as here, the case of Mahafj?z involved a criminal prosecution and a parallel SEC enforcement
action stemming from the same events. After the defendant?s criminal conviction and sentencing,
the SEC initiated administrative proceedings against him. Maha?jz, 693 F.3d at 118-49. In the
administrative proceedings the SEC disclosed transcripts of investigative depositions that were
taken years before the criminal trial and the defendant moved for a new trial, arguing that the
transcripts included material that was required to be disclosed under Brady. Id. at 1 19. The Second
Circuit vacated the convictions finding that ?the government's failure to disclose portions of the
transcripts violated Brady and that these Brady violations undermined confidence in the jury's
verdict.? Id. Such a result can be avoided here if the Court orders a continuance and disclosure of
statements of all witnesses, not just those for which the Government intends to call.

Sanctions are warranted for the Government?s deliberate violation of Brady. We request
dismissal of the Indictment or, in the alternative, an order precluding evidence or, at the very least,
a 30 day continuance to allow us to investigate and adequately use the evidence that has been
suppressed up to this point and continues to be suppressed. A continuance is necessary to avoid

Case 7:16-cr-00259-CS Document 109 Filed 04/07/17 Page 5 of 5

further damage caused by untimely and continued suppression of Brady. See, DiSimone v.
Phillips, 461 F.3d 181, 197 (2d Cir. 2006) (?damage caused by the delay [in Brady disclosure] was
aggravated by the failure of the court to grant the defense's requested continuance?).

J??espectfully, 



.  ?j Us
 
MICHAEL KBURKE



Cc: Assistant US. Attorney James McMahon (via ECF)
Assistant US. Attorney Daniel Loss (via ECF)
Assistant US. Attorney Stephen Ritchin (via ECF)

 

Case 7:16-cr-00259-CS Document 109-1 Filed 04/07/17 Page 1 of 3

EXHIBIT A

Gbgage 15165190025968 Filed 04/07/17 Page 2 of 3 6O
respect to those acts at the same time, or sooner if it would
be so voluminous that the defendants couldn?t oppose the
motions within two weeks.

Witness list, I don't see that there's been a showing
required for a witness list but I will direct the government to
turn over the 3500, which is the functional equivalent of a
witness list, April 5. Marked government exhibits March 29th.
Brady and Giglio, we all know what the rules are. The
government represents it's turned everything over. Has the
government identified something as Brady or has it just turned
over all the documents it has.

MR. We've turned over all the documents
although with respect to some of the Brady, what I'll term the
more interesting Brady it's fairly obvious. I'm turning over
SEC testimony that I otherwise wouldn't have turned over, in
It must

fact we fought turning over. I'm turning that over.

be under a Brady theory. i'm turned over pages with grand jury
transcripts. I wouldn't be turning that over but for Brady.
So I think they can figure it out if they look at it.

THE Witness testimony that you turned over the
only reason you have to turn over now is Brady. Is there more
Brady buried within the two million that you're just leaving
them to find, because that is frowned upon.

MR. They could probably go through all the
documents and find something that they say favors them. But

SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805m0300

 

Gbgagec d16?gr-00259-CS DocumBEtCJI%9fng Filed 04/07/17 Page 3 of 3 61
I'm not hiding anything in there.

THE COURT: You don't have to go through and flag for
them whatever documents hurt your case or help the defendant's
case. But if there is something in there that you believe
meets the definition of Brady in that it's material and that
you might get reversed if you didn't flag it you better flag
it.

MR. Okay.

THE COURT: I can't make that decision. If it's
something that the transcripts you've turned over point to and
it would be logical and any lawyer of the caliber of these
lawyers would know based on the transcript you've turned over
what documents they ought to be looking at you don?t have to
flag them. And like I said you don't have to flag anything
that a clever lawyer might be able to use to help his case or
hurt your case. But if something is blood and guts Brady, you
should flag it, even if it's been turned over in the two
million.

MR. MCMAHON: Very well.

THE COURT: 3500 we've talked about. You don't have

any experts or tests. But if you are going to use somebody to
explain the bond markets that sounds like expert testimony.
We've talked about the bill of particulars.

Now turning to Mr. Troodler's motions.

MR. I'm sorry, your Honor, before you go

SOUTHERN DESTRECT REPORTERS, P.C.
(212) 805m0300

 

Case 7:16-cr-00259-CS Document 109-2 Filed 04/07/17 Page 1 of 2

EXHIBIT 

Case 7:16-cr-00259-CS Document 109-2 Filed 04/07/17 Page 2 of 2

1704031awrenceC

MR.

MR.

MR.

MR.

Conference

BURKE: Just the top shelf?

Yes, just the top shelf.

BURKE: Well, is it 

And there are tapes that obviously don't

take up the length of the file cart.

THE

listened to the tapes.

COURT: Right, but presumably, the defense has

What's in there and some of that, I

gather, is SEC transcripts and the like that the defendant has

also seen.

MR.

MR.

Yes.

BURKE: Not all of it. We'll only seen some

portions of SEC testimony.



MR.

COURT: Not all of it is brand new.

We turned over portions of SEC

transcripts as Brady or Bradymish, but now they'll get the rest

of it that didn't fall within Brady.

THE

COURT: Well, did they get the transcripts from the

SEC in the other case?

MR.

MR.

THE

MR.

THE
Okay.

MR.

BURKE: No.

MCMAHON: That was what was referring to.
COURT: Because we held off on that.

MCMAHON: Yes.

COURT: So, the SEC transcripts will be news.
BURKE: We?ll take them early if the Court wants.

SABRINA A. OFFICIAL COURT REPORTER

(914)390~4053