Case 1:18-cr-00693-RMB Document 154 Filed 12/09/19 Page 1 of 28

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------x
UNITED STATES OF AMERICA,
-v.-

S6 18 CR. 693 (RMB)

RICHARD GAFFEY,
a/k/a “Dick Gaffey,” and
HARALD JOACHIM VON DER GOLTZ,
a/k/a “H.J. von der Goltz,”
a/k/a “Johan von der Goltz,”
a/k/a “Jochen von der Goltz,”
a/k/a “Tica,”
a/k/a “Tika,”
Defendants.
------------------------------------------------------------------------x
MEMORANDUM OF LAW IN SUPPORT
OF RICHARD GAFFEY’S MOTIONS IN LIMINE
HOGAN LOVELLS US LLP
William J. Lovett
125 High Street, Suite 2010
Boston, MA 02110
Telephone: (617) 371-1007
Robert B. Buehler
390 Madison Avenue
New York, NY 10017
Telephone: (212) 918-3261
Fax: (212) 918-3100
Attorneys for Defendant
Richard Gaffey

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................................................... 1
BACKGROUND ............................................................................................................................ 1
ARGUMENT .................................................................................................................................. 3
I.

Evidence Concerning Marianna Olszewski Is Not Admissible .......................................... 3
A.

Evidence of any interactions between Mr. Gaffey and
Olszewski is entirely unrelated to the charged offenses ......................................... 3

B.

Evidence involving Olszewski is not admissible under Rule 404(b) ..................... 6

C.

Evidence concerning Olszewski is unduly prejudicial under Rule 403 .................. 9

II.

Evidence That Mr. Gaffey Overstated The Cost Basis
Of EXA Stock Should Be Precluded ................................................................................ 11

III.

The Government Should Be Precluded From Introducing Evidence That
Mr. Gaffey Failed To Comply With Subpoenas And From
Arguing That He Had Signature Or “Other Authority”
Over A Foreign Financial Account ................................................................................... 13
A.

Mr. Gaffey’s accounting firm complied with the subpoenas ................................ 13

B.

Mr. Gaffey complied with the grand jury subpoena
issued to him in his individual capacity ................................................................ 17

IV.

The Government Should Be Precluded from Offering The
Testimony Of Summary Witnesses .................................................................................. 20

V.

Mr. Gaffey Joins In Mr. von der Goltz’s Motions In Limine ........................................... 24

CONCLUSION ............................................................................................................................. 24

i

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TABLE OF AUTHORITIES
Page(s)
Cases
Fagiola v. Nat’l Gypsum Co. AC & S., Inc.,
906 F.2d 53 (2d. Cir. 1990)......................................................................................................20
Ferrari Club of America, Inc. v. Bourdage,
2017 WL 1498080 (W.D.N.Y. Apr. 25, 2017) ........................................................................22
United States v. Barnwell,
2017 WL 1063457 (S.D.N.Y. Mar. 20, 2017) ...................................................................20, 21
United States v. Conlin,
551 F.2d 534 (2d Cir. 1977).....................................................................................................20
United States v. Cummings,
60 F. Supp. 3d 434 (S.D.N.Y. 2014).......................................................................................14
United States v. Curley,
639 F.3d 50 (2d Cir. 2011).........................................................................................................6
United States v. Dukagjini,
326 F.3d 45 (2d Cir. 2003).......................................................................................................21
United States v. Garrity,
2019 WL 1004584 (D. Conn. Feb. 28, 2019) ..........................................................................18
United States v. Grinage,
390 F.3d 746 (2d Cir. 2004)...............................................................................................21, 23
United States v. Holmes,
44 F.3d 1150 (2d Cir. 1995).......................................................................................................3
United States v. Hsu,
669 F.3d 112 (2d Cir. 2012)...................................................................................................3, 7
United States v. Jasper,
2003 WL 221740 (S.D.N.Y. Jan. 31, 2003) ............................................................................21
United States v. Koskerides,
877 F.2d 1129 (2d Cir. 1989)...................................................................................................21
ii

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United States v. Levin,
2016 WL 8711458 (S.D.N.Y. 2016) ..........................................................................................7
United States v. McCallum,
584 F.3d 471 (2d Cir. 2009).....................................................................................................10
United States v. Milkiewicz,
470 F.3d 390 (1st Cir. 2006) ....................................................................................................20
United States v. Nektalov,
325 F. Supp. 2d 367 (S.D.N.Y. 2004)....................................................................................3, 8
United States v. Norris,
2010 WL 11463301 (N.D.N.Y. Aug. 24, 2010) ......................................................................20
United States v. Scott,
677 F. 3d 72 (2d Cir. 2012)..................................................................................................7, 10
United States v. Stein,
521 F. Supp. 2d 266 (S.D.N.Y. 2007)..............................................................................3, 7, 12
United States v. Ulbricht,
79 F. Supp. 3d 466 (S.D.N.Y. 2015)........................................................................................10
United States v. Williams,
585 F.3d 703 (2d Cir. 2009).....................................................................................................10
Untied States v. Citron,
783 F.2d 307 (2d Cir. 1986).....................................................................................................21
Other Authorities
31 C.F.R. 1010.350(a)....................................................................................................................18
31 C.F.R. 1010.350(f) ....................................................................................................................18
31 C.F.R § 1010.350 ......................................................................................................................18
76 Fed. Reg. 10234, 10235 (Feb. 24, 2011) ............................................................................18, 19
Federal Rule of Evidence 403 ................................................................................................ passim
Federal Rule of Evidence 404(b) ........................................................................................... passim
Federal Rule of Evidence 701 ........................................................................................................21
Federal Rule of Evidence 1006 ................................................................................................20, 23
iii

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PRELIMINARY STATEMENT
Defendant Richard Gaffey respectfully submits this memorandum of law in support of his
motions in limine to preclude the government from introducing (1) testimony and documents
related to Marianna Olszewski; (2) evidence and argument that Mr. Gaffey willfully overstated
his cost basis in reporting the sale of EXA stock; (3) evidence and argument that Mr. Gaffey
failed to comply with subpoenas, obstructed the investigation, or had “other authority” over
foreign financial accounts; and (4) testimony of “summary witnesses” regarding co-defendant
Johan von der Goltz’s income and alleged tax loss, as well as testimony more generally
regarding tax reporting obligations and various IRS programs and forms.

This evidence,

testimony and argument are not admissible under the Federal Rules of Evidence, are unduly
prejudicial, would confuse the issues and mislead the jury, would unnecessarily delay the trial,
and would deny Mr. Gaffey his constitutional right to a fair trial.
BACKGROUND
On December 2, 2019, the government wrote a letter to counsel for Mr. Gaffey
describing conduct that it argued was “admissible as direct evidence of the crimes charged” or
“also [ ] admissible pursuant to Rule 404(b)” of the Federal Rules of Evidence (the “404(b)
Notice”). 1 The government’s 404(b) Notice included three claims that should be excluded from
Mr. Gaffey’s trial.
First, the government claims that Mr. Gaffey “assist[ed] Marianna Olszewski’s fraudulent
repatriation of funds that she held in undisclosed offshore bank accounts in 2008 and 2009.”

1

The Rule 404(b) Notice is attached as Exhibit 1 to the accompanying declaration of Robert Buehler
(“Buehler Dec.”).

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Contrary to the government’s claims, none of this conduct has a direct connection to the charges
against Mr. Gaffey, and none of it is admissible under Rule 404(b).
Second, the government claims that Mr. Gaffey received 20,000 shares of EXA stock
from Mr. von der Goltz and that he “willfully overstated his cost basis on these shares in his tax
filings to reduce the capital gains taxes he paid on the sale of these shares.” Mr. Gaffey’s
reporting of the sale of the EXA stock is also not related to the charges in this case and is
similarly inadmissible under Rule 404(b).
Third, the government claims that Mr. Gaffey “failed to comply with multiple subpoenas
issued to him in his personal capacity and to his accounting firm until after law enforcement
agents executed a search warrant at the accounting firm.” Mr. Gaffey was represented by
counsel following the issuance of the initial subpoenas referred to by the government, and the
evidence will show that Mr. Gaffey’s counsel was in constant contact with the government about
Mr. Gaffey’s compliance with the subpoenas. Accordingly, it would be unduly prejudicial to
Mr. Gaffey to permit the government to present evidence at trial on a collateral issue, and it
would also cause confusion and delay as Mr. Gaffey would be forced to defend against these
largely unrelated and highly prejudicial allegations.
For the reasons explained below, this conduct is irrelevant to the issues in the indictment
and does not constitute admissible evidence under Rule 404(b).

In addition, allowing the

government to admit that conduct into evidence could graft multiple unrelated mini-trials onto
the larger trial.

2

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ARGUMENT
I.

Evidence Concerning Marianna Olszewski Is Not Admissible
A.

Evidence of any interactions between Mr. Gaffey and
Olszewski is entirely unrelated to the charged offenses

Direct proof includes only evidence that “arose out of the same transaction or series of
transactions as the charged offense, . . . is inextricably intertwined with the evidence regarding
the charged offense, or . . . is necessary to complete the story of the crime on trial.” United
States v. Hsu, 669 F.3d 112, 118 (2d Cir. 2012) (quoting United States v. Carboni, 204 F.3d 39,
44 (2d Cir. 2000)); see also United States v. Holmes, 44 F.3d 1150, 1157 (2d Cir. 1995) (“Absent
some connection between the testimony and the transactions at issue in this case, there was no
abuse of discretion in excluding the testimony.”); United States v. Stein, 521 F. Supp. 2d 266,
270–73 (S.D.N.Y. 2007) (evidence of uncharged tax shelters not admissible where government
failed to explain the similarities between charged and uncharged transactions); United States v.
Nektalov, 325 F. Supp. 2d 367, 370 (S.D.N.Y. 2004) (declining to consider acts as direct
evidence in part because they appeared to involve transactions distinct from the charged crimes).
The burden is on the government to demonstrate why the uncharged conduct is
inextricably intertwined with the charged conduct and to “explain[] why details of the uncharged
[conduct] are necessary to understand the charged transaction[s].” Stein, 521 F. Supp. 2d at 270–
71.
The allegations that Mr. Gaffey somehow assisted Olszewski in fraudulently repatriating
funds to the United States are completely irrelevant to the charged offenses, which concern
solely allegations involving the assets, accounts and affairs of Mr. von der Goltz. Mr. Gaffey’s
alleged uncharged conduct with respect to Olszewski is not inextricably intertwined with the
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charged conduct, does not relate to the same transaction or series of transactions, and is not
necessary to complete the story at trial. Rather, the uncharged conduct serves only to falsely and
unfairly portray Mr. Gaffey as an accountant with a propensity to assist clients who cheat on
their taxes.
Indeed, while the initial indictment in this case referred to Olszewski, the government
recently returned a second superseding indictment, S6 18 Cr. 693, that eliminated any reference
to Olszewski. Therefore, the operative indictment in this case, which was returned on December
6, 2019, makes no mention whatsoever of Olszewski. Even in the initial indictment, Olszewski
only appeared in a conspiracy count in which Mr. Gaffey was not charged. Count One of the
initial indictment charged Ramses Owens and Dirk Brauer – but not Mr. Gaffey – with a
conspiracy to defraud the United States. Despite the fact that Mr. Gaffey was not charged in that
count, the initial indictment alleged that Olszewski, who was referred to as “Client-1,” met with
Mr. Gaffey at a train station on or about November 7, 2008. Indictment 18 Cr. 693, ¶ 26. At that
meeting, Mr. Gaffey allegedly provided Olszewski with advice concerning her desire to bring
offshore funds into the United States. Id. Significantly, the initial indictment alleged that
Olszewski did not follow Mr. Gaffey’s advice. Id. In exceedingly vague terms, the initial
indictment alleges that Olszewski may have spoken with Mr. Gaffey one additional time about
these same issues. Id. at ¶ 27. However, the initial indictment fails to allege when, where or
how this final conversation took place, its duration, or what was specifically discussed. Other
than the single meeting and a possible second conversation, there are no other allegations that
Mr. Gaffey provided any advice or performed any other work for Olszewski, and at no point
was Mr. Gaffey ever charged with any crimes related to her.
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The extremely narrow allegations concerning Mr. Gaffey’s involvement with Olszewski
stand in sharp contrast to the alleged relationship between Mr. Gaffey and Mr. von der Goltz,
which will be the focus of this trial. As opposed to Olszewski, who is alleged to have met with
Mr. Gaffey on a single occasion, Mr. von der Goltz allegedly knew and worked closely with Mr.
Gaffey for at least sixteen years, the time period of the alleged conspiracy to commit tax evasion.
In addition, while Mr. Gaffey’s sole meeting with Olszewski allegedly took place more than
twelve years ago, the allegations concerning Mr. Gaffey and Mr. von der Goltz are alleged to
have continued until at least 2016. The evidence that the government has indicated it will seek to
introduce includes hundreds of emails and other documents involving Mr. Gaffey and Mr. von
der Goltz. The defense is unaware of any emails that the government is seeking to introduce
involving Mr. Gaffey and Olszewski.
Moreover, the nature of the tax advice that Mr. Gaffey is alleged to have provided to
Olszewski is also entirely different from the work that Mr. Gaffey is alleged to have done for Mr.
von der Goltz. Notably, the sole encounter between Mr. Gaffey and Olszewski concerned her
desire to bring offshore money back to the United States, and nothing else. The allegations
involving Mr. Gaffey and Mr. von der Goltz concern advice relating to a host of other topics,
such as the creation and use of offshore trusts and foundations, the opening and closing of
overseas accounts, and various transactions on behalf of Mr. von der Goltz – none of which was
allegedly discussed between Mr. Gaffey and Olszewski. In addition, none of the allegations
describing Mr. Gaffey and Mr. von der Goltz’s joint endeavors is in any way linked to
Olszewski. To the contrary, the superseding indictment alleges that Mr. Gaffey conspired with
Mr. von der Goltz to commit tax evasion, wire fraud, and money laundering, and that they failed
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to file Reports of Foreign Bank and Financial Accounts (“FBARs”) disclosing Mr. von der
Goltz’s alleged interest in foreign bank accounts. There is no allegation that Mr. Gaffey engaged
in the same or similar conduct with respect to Olszewski. Nor could there be, as Mr. Gaffey is
alleged to have met with Olszewski on one occasion, 12 years ago, in a train station, where they
allegedly discussed funds that Olszewski wanted to repatriate to the United States. Similarly,
there are no allegations that Mr. Gaffey prepared any tax returns for Olszewski, assisted her with
any offshore entities, or advised her not to declare offshore bank accounts. Simply put, there is
no connection or similarity between the one-time advice that Mr. Gaffey allegedly gave to
Olszewski and the years of work that he allegedly performed for Mr. von der Goltz.
Given the many dissimilarities between the allegations concerning Mr. Gaffey’s limited
involvement with Olszewski and his extensive involvement with Mr. von der Goltz, any
evidence offered by the government regarding Olszewski cannot be said to complete the “story
of the crime on trial.” The introduction of any evidence involving Olszewski would only serve
the impermissible purpose of unfairly depicting Mr. Gaffey as an accountant who helps clients
evade taxes. Accordingly, evidence concerning Olszewski is not direct proof of the charges
against Mr. Gaffey and should not be admitted.
B.

Evidence involving Olszewski is not admissible under Rule 404(b)

The evidence of Mr. Gaffey’s limited involvement with Olszewski is not admissible
under Rule 404(b). While this circuit takes an “inclusionary approach” to Rule 404(b) evidence,
“[e]ven under this approach [ ] district courts should not presume that such evidence is relevant
or admissible.” United States v. Curley, 639 F.3d 50, 56 (2d Cir. 2011). It is well established
that the inclusive approach is not “a carte blanche to admit prejudicial extrinsic act evidence
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when, as here, it is offered to prove propensity.” United States v. Scott, 677 F. 3d 72, 79 (2d Cir.
2012). Thus, evidence that a defendant committed crimes or other bad acts beyond those
presented to the jury is not admissible to show that “the defendant is a bad person who is
therefore likely to be guilty of the crimes charged.” Hsu, 669 F.3d at 118.
To introduce evidence under Rule 404(b), the government must show that “(1) it [i]s
offered for a proper purpose; (2) it [i]s relevant to a material issue in dispute; [and] (3) its
probative value is substantially outweighed by its prejudicial effect.” United States v. Scott, 677
F.3d at 79 (quoting United States v. LaFlam, 369 F.3d 153, 156 (2d Cir. 2004)). To carry its
burden of establishing the admissibility of evidence related to Olszewski, the government must
explain the similarities between the charged and uncharged conduct and articulate how the
similarities identified are relevant to an issue in dispute. See United States v. Stein, 521 F. Supp.
2d 266, 270–71 (S.D.N.Y. 2007). “Once the Government has proffered a proper purpose for
‘other act’ evidence, the Court must then determine whether the other act is in fact probative of
the crimes charged. In this regard, the Government must identify a similarity or connection
between the other act and an element of a charged offense. To be relevant, the other act must be
sufficiently similar to the conduct at issue to permit the jury reasonably to draw an inference
from the act that the state of mind of the actor is as the proponent of the evidence asserts.”
United States v. Levin, 2016 WL 8711458, *6 (S.D.N.Y. Jan. 8, 2016) (internal citations and
quotations omitted). Here, the government cannot carry this burden for several reasons.
As discussed above, there are no similarities whatsoever between Mr. Gaffey's
exceedingly limited interaction with Olszewski and his years-long involvement with Mr. von der
Goltz. Again, the allegations concerning Mr. Gaffey and Olszewski are limited to a single
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meeting in 2007 and have nothing to do with Mr. von der Goltz or the work that Mr. Gaffey
allegedly performed on his behalf. Instead, according to the government’s own telling, the sole
"similarity" is that Olszewski and Mr. von der Goltz both allegedly sought to evade taxes, albeit
in entirely different ways. But this is not the type of similarity that Rule 404(b) requires. In fact,
it is precisely what Rule 404(b) prohibits, namely an attempt to show that Mr. Gaffey has a
propensity to assist clients in committing tax evasion.
In its Rule 404(b) Notice, the government mentions that an alleged co-conspirator,
Ramses Owens, also advised Olszewski and that, as a result, evidence related to Olszewski
“tends to show” the nature of Mr. Gaffey’s relationship with Owens and his knowledge that
Mossack Fonseca was being used to conceal assets from the United States government.
However, the mere suggestion that Owens was allegedly also advising Olszewski is not
sufficient to create the requisite similarity under Rule 404(b). See United States v. Nektalov, 325
F. Supp. 2d at 370 (declining to consider acts as direct evidence in part because they appeared to
involve transactions distinct from the charged crimes). And, again, the government’s own
allegations fail to support even this thin reed purportedly linking Mr. Gaffey and Owens.
Significantly, the initial indictment does not allege that Mr. Gaffey ever met, spoke or even
communicated with Owens about Olszewski. The sole connection between Mr. Gaffey and
Owens is alleged to be Olszewski herself, who met only once with Mr. Gaffey and may have
spoken to him on just one additional occasion. In sum, Mr. Gaffey’s alleged involvement with
Owens concerning Olszewski is nonexistent, and whatever services that they allegedly provided
to her were not jointly rendered and were of an entirely different nature than the lengthy work
that they allegedly performed for Mr. von der Goltz. As a result, there is absolutely no support
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for the government’s claim that evidence concerning Olszewski would somehow “tend[] to
show” either the nature of his relationship with Owens or his knowledge of Mossack Fonseca.
Evidence concerning Olszewski’s situation has no probative value to this case and is not
relevant to a material issue in dispute regarding the charged conduct. The only plausible reason
for the government to introduce such evidence would be for the impermissible purpose of
establishing that Mr. Gaffey is an accountant who assists tax cheats. This type of propensity
evidence is strictly prohibited under Rule 404(b).
C.

Evidence concerning Olszewski is unduly prejudicial under Rule 403

Even if this Court were to find that the evidence related to Olszewski passes muster under
Rule 404(b), it would still be inadmissible under Rule 403 of the Federal Rules of Evidence.
Rule 403 precludes otherwise admissible evidence when the probative value of that evidence is
outweighed by the substantial prejudice or confusion the evidence will cause the jury. Fed. R.
Evid. 403 (permitting Court to exclude even plainly relevant evidence “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”).
As an initial matter, introduction of evidence regarding Olszewski would unduly
prejudice Mr. Gaffey and increase the likelihood that the jury will draw an impermissible
inference concerning his character. Because Mr. Gaffey’s alleged interactions with Olszewski
were extremely limited and concerned a tax matter that has nothing to do with Mr. von der Goltz,
and because of the very different work that Mr. Gaffey performed for him, Mr. Gaffey will be
unfairly prejudiced by the likelihood that the jury will draw the impermissible inference
described above – that he is an accountant of bad character involved in tax evasion. As such, any
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probative value of Mr. Gaffey’s purported involvement with Olszewski is greatly outweighed by
the unfair prejudice it brings. See Scott, 677 F.3d at 79; United States v. McCallum, 584 F.3d
471, 476 (2d Cir. 2009) (evidence suggesting prior bad acts invites “generalized reasoning about
a defendant’s criminal propensity and thereby undermines the presumption of innocence”).
Further, the government clearly does not need the purported Olszewski conduct to
establish that Mr. Gaffey had a “relationship” with Owens or “knowledge” of Mossack Fonseca.
Both the discovery and the government’s exhibit list are replete with emails and other documents
demonstrating Mr. Gaffey’s communications with Owens and other employees of Mossack
Fonseca, as well as their separate connections with Mr. von der Goltz.

The very limited

Olszewski conduct would not add to that large amount of evidentiary material. See Fed. R. Evid.
403 advisory committee’s note (“The availability of other means of proof may also be an
appropriate factor [in considering whether to exclude evidence on ground of unfair prejudice].”);
United States v. Ulbricht, 79 F. Supp. 3d 466, 480 (S.D.N.Y. 2015) (precluding unrelated 404(b)
evidence that was not necessary to the government’s case); United States v. Williams, 585 F.3d
703, 707-08 (2d Cir. 2009) (vacating conviction where improper 404(b) evidence was admitted
that “[t]he Government did not need” to explain or prove its case).
Moreover, because the alleged Olszewski evidence is so unrelated and irrelevant to the
charged conduct, allowing the government to introduce the Olszewski evidence has the potential
to expand the trial considerably and create confusion for the jury.

If evidence regarding

Olszewski were admitted, the government would need to prove a vastly different uncharged
conspiracy involving Olszewski in an attempt to show a relationship of some kind between the
charged and uncharged conduct. This evidence, along with the likely need for Mr. Gaffey to
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respond with his own evidence, would needlessly divert the jury’s attention from the charged
conduct. Further, given that the charged conduct consists of a sixteen-year, complex conspiracy
involving complicated tax issues, numerous offshore entities and accounts, and hundreds (if not
thousands) of financial transactions, any evidence concerning Olszewski’s completely separate
situation would cause undue delay and confusion of the issues in what already promises to be a
lengthy and difficult trial.
In the end, the government should not be permitted to divert the jury’s attention to
unrelated and uncharged conduct regarding Olszewski. Presenting such evidence will unduly
complicate an already complicated case and result in a trial within a trial. This approach will
confuse the jury, waste time and resources, and, most importantly, unduly prejudice Mr. Gaffey.
Evidence concerning Olszewski should therefore be excluded.
II.

Evidence That Mr. Gaffey Overstated The Cost Basis Of EXA Stock Should Be
Precluded
The government seeks to introduce evidence that Mr. Gaffey “willfully overstated” the

cost basis of shares of EXA stock in his tax filings to reduce capital gains taxes that he paid on
the sales of these shares. In its Rule 404(b) Notice, the government claims that the EXA stock
constituted a “payment” to Mr. Gaffey from Mr. von der Goltz.” 2
Evidence that Mr. Gaffey overstated the cost basis of the EXA stock does not constitute
direct proof of the charged offenses. The tax evasion, wire fraud, money laundering and failure
to file FBARs charges focus exclusively on the income, assets, accounts, and entities allegedly

2

Mr. Gaffey does not object to the introduction of evidence regarding his receipt of the stock in question.
This motion is limited to the government’s attempt to introduce evidence that Mr. Gaffey overstated his cost
basis when the stock was sold.

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belonging to Mr. von der Goltz. At no time has the government alleged that Mr. Gaffey has
done anything other than assist Mr. von der Goltz in dealing with the latter’s assets. Mr. Gaffey
is not charged with any crime related to the filing of his personal income tax returns. The
alleged overstatement of the cost basis of stock belonging to Mr. Gaffey is not remotely related
to the alleged conduct involving Mr. von der Goltz. Accordingly, the government cannot meet
its burden of establishing that the uncharged conduct, which involves Mr. Gaffey’s reporting of a
sale of stock on his personal income tax return, is relevant to the charged conduct, which
involves the handling of Mr. von der Goltz’s entirely separate assets and accounts.
Nor is the alleged overstatement of cost basis admissible under Rule 404(b). The claim
that Mr. Gaffey overstated the cost basis for some stock that he sold is not remotely similar to the
sweeping allegations of tax evasion, wire fraud and money laundering in the indictment, which
primarily relate to the alleged concealment of Mr. von der Goltz’s interest in offshore entities
and accounts. Other than the fact that they each relate to the payment of taxes, the allegations
concerning the charged and uncharged conduct could not be more dissimilar. See Stein, 521 F.
Supp. 2d at 270–73 (evidence of uncharged tax shelters not admissible where government failed
to explain the similarities between charged and uncharged transactions). The only plausible
reason for the government to offer such evidence is the impermissible purpose of establishing
Mr. Gaffey’s bad character.
Even if the government could present a plausible explanation as to why Mr. Gaffey’s
alleged overstatement of cost basis in the stock is somehow similar or relevant to the charged
offenses, the probative value of any such evidence is substantially outweighed by the prejudicial
effect on the jury.

Simply put, allowing the government to present evidence – in a case
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involving tax evasion – that Mr. Gaffey, a professional tax preparer, allegedly cheated on his
own taxes would be enormously prejudicial to Mr. Gaffey. Even though this case has absolutely
nothing to do with Mr. Gaffey’s own tax returns, the jury would be very likely to conclude that if
Mr. Gaffey cheated on his own taxes, he would also assist another person to cheat on theirs.
Precisely because the purported overstatement of cost basis is so unrelated and dissimilar to the
alleged conduct involving Mr. von der Goltz, the unfair prejudicial effect on Mr. Gaffey will be
even greater.
In addition, the introduction of this evidence will lengthen the trial and confuse the jury.
If the government is allowed to introduce such evidence, Mr. Gaffey will be forced to present
additional evidence related to the calculation of cost basis under the Internal Revenue Code and
request a jury charge as to how the cost basis of stock is determined under the Internal Revenue
Code. The tax analysis related to the determination of the cost basis for stock received from a
third party is far afield from the already complex substantive tax issues involving the taxation of
offshore corporations and trusts that the jury will need to consider to render a verdict. The
government should not be permitted to waste the jury’s time with this irrelevant and unduly
prejudicial evidence.
III.

The Government Should Be Precluded From Introducing Evidence That Mr. Gaffey
Failed To Comply With Subpoenas And From Arguing That He Had Signature Or
“Other Authority” Over A Foreign Financial Account
A.

Mr. Gaffey’s accounting firm complied with the subpoenas

The Rule 404(b) Notice indicated that the government may introduce evidence that Mr.
Gaffey “failed to comply with multiple subpoenas issued to him in his personal capacity and to
his accounting firm” and that he did not disclose the existence of the subpoenas to his firm. The
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government asserts that such evidence would show Mr. Gaffey’s “consciousness of guilt” and
“his continued efforts to assist his co-conspirator von der Goltz in concealing assets from the
United States government and in evading taxes due to the Internal Revenue Service.” This
evidence should be precluded in its entirety, as it would be both misleading and unduly
prejudicial to Mr. Gaffey if it were introduced at trial.
As a preliminary matter, the government’s notice is hopelessly vague and does not permit
either Mr. Gaffey to respond adequately to the government’s claim or the Court to properly
evaluate the evidence. See United States v. Cummings, 60 F. Supp. 3d 434, 438 (S.D.N.Y. 2014)
(refusing to consider proffered acts as distinct evidence of underlying conspiracy due to limited
information provided by the government), rev’d on other grounds, 858 F.3d 763 (2d Cir. 2017).
In a nutshell, the government does not identify how Mr. Gaffey or his firm failed to comply with
the subpoenas or how those efforts impeded the investigation.
In addition, as the government well knows, Mr. Gaffey immediately retained a law firm,
Collora LLP 3, to represent him and his accounting firm in connection with the grand jury
investigation. As a result, Mr. Gaffey’s counsel, not Mr. Gaffey, communicated and cooperated
with the government throughout the investigation, in order to search for, locate and produce
documents responsive to the subpoenas. Thus, any perceived issues with subpoena compliance
are not evidence of Mr. Gaffey’s “consciousness of guilt” or his “continued efforts to assist his
co-conspirator von der Goltz,” and it would be both misleading to the jury and unfairly
prejudicial to Mr. Gaffey for the government to be permitted to suggest otherwise.

3

Collora LLP combined with Hogan Lovells US LLP effective September 1, 2017. William Lovett
represented Mr. Gaffey and his firm throughout the course of the grand jury investigation, and continues to
represent Mr. Gaffey in the instant case.

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The first grand jury subpoena was issued on October 13, 2016, to Mr. Gaffey in his
individual capacity. At counsel’s request, the government withdrew that subpoena and reissued
a grand jury subpoena to Mr. Gaffey’s firm on November 8, 2016. That subpoena called for the
production of documents related to seventeen different entities and did not specify a relevant
time period. The subpoena requested that the documents be “produced in electronic format if
possible” but did not specify the type of electronic form in which the documents should be
produced.
Given the breadth of the subpoena, which required the production of documents dating
back more than twenty years, counsel immediately contacted the prosecutors and requested that
the government prioritize the categories of documents it wanted produced. The government
responded that documents related to an entity known as Zadora Time Pieces should be produced
first. The first document production was made on November 11, 2016, followed by productions
on November 23, 2016 (Zadora Time Pieces); March 3, 2017 (Baker McKenzie Privilege Log);
March 16, 2017; April 10, 2017 (Zadora Time Pieces); April 10, 2017 (Zadora Time Pieces with
privilege log); and April 20, 2017 (Brecknock Corporation).
After the April 20, 2017 production, Ann Marie Blaylock, an attorney with the Money
Laundering and Asset Recovery Section of the Department of Justice, requested a call with
counsel to discuss the format in which the documents were being produced. That call took place
on May 3, 2017, at which time Blaylock requested that the documents be reproduced in native
format with metadata in accordance with “DOJ CRM” production requirements. This was the
first time that the government had referred to these production requirements, which had not been
previously provided to Mr. Gaffey or his counsel. Blaylock also requested that Mr. von der
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Goltz’s personal tax returns and FBARs be produced, even though those documents were not
within the scope of the November 8, 2016 subpoena, as well as communications with Olszewski.
After the call, counsel for Mr. Gaffey memorialized the discussion in a letter to the
government dated May 22, 2017. See Buehler Dec., Ex. 2. That letter noted that 1) the
November 8, 2016 grand jury subpoena did not call for the production of Mr. von der Goltz’s
personal tax returns or FBARs, but that Mr. Gaffey’s firm would be willing to produce those
documents in response to a grand jury subpoena requesting such documents; 2) the firm had
located communications with Olszewski, which were produced with the letter; 3) the firm had
been making rolling document productions of documents maintained in client folders; and 4) the
firm had retained an electronic discovery consultant to conduct a search for additional responsive
documents not maintained in client folders and requested that the government provide search
terms that it believed would identify responsive documents. The government declined to provide
any search terms to expedite the production.
On August 8, 2017, the government executed a search warrant on the offices of Mr.
Gaffey’s firm, seizing, among other things, the firm’s server.

Thereafter, the government

provided search terms to facilitate the firm’s search for responsive documents and the firm made
twenty-four additional document and privilege log productions in response to the subpoenas. At
no time did the government complain that Mr. Gaffey’s firm failed to comply with the subpoenas
or move to compel compliance. Under these circumstances, the government cannot credibly
claim that Mr. Gaffey “failed to comply with multiple subpoenas.”
The government’s allegation that Mr. Gaffey did not disclose the existence of the
subpoenas to his partners is equally specious. As the government well knows, Mr. Gaffey’s
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partners were represented by separate counsel throughout the investigation. Not surprisingly,
Mr. Gaffey was instructed not to speak to his partners regarding the investigation and that all
communications should go through counsel. Thus, the fact that Mr. Gaffey did not inform his
partners of the subpoenas is not evidence of anything, other than that he was following the
advice of counsel.
In short, there is no evidence that Mr. Gaffey ever obstructed the investigation for any
reason, much less to assist Mr. von der Goltz. This assertion is amply supported by the fact that
counsel, not Mr. Gaffey, dealt with the government with respect to the firm’s subpoena
compliance and made significant efforts to comply with the subpoenas, as well as with the
government’s belated request that documents be produced in native format with metadata.
Introduction of this evidence is not only irrelevant, misleading to the jury, and highly
prejudicial to Mr. Gaffey, but it would force Mr. Gaffey to put on extensive evidence, including
in the form of witnesses and documents, to rebut the government’s unsupported claims of noncompliance.
B.

Mr. Gaffey complied with the grand jury subpoena issued to him in his
individual capacity

The government also provided notice that it may seek to introduce evidence of Mr.
Gaffey’s non-compliance with a grand jury subpoena issued to him personally. That subpoena,
issued on May 2, 2017, required him to produce records related to “foreign financial accounts in
which Gaffey had a present or future financial interest, beneficial ownership interest or over
which you have signature or other authority.” Because the government’s claim of subpoena noncompliance is based on a significant misinterpretation of the regulation defining “signature or
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other authority,” this evidence should be precluded, and the government should not be permitted
to argue that Mr. Gaffey had “signature or other authority” over any foreign financial accounts.
Mr. Gaffey responded to this subpoena through counsel in a letter dated May 17, 2017,
stating that he “did not have financial interest in or signature or other authority, as defined in 31
C.F.R § 1010.350, over a foreign financial account.” See Buehler Dec., Ex. 3. The letter cited to
the Amendment to the Bank Secrecy Act Regulations – Reports of Foreign Financial Accounts,
76 Fed. Reg. 10234 at 10235-36 (Dept. of Treasury – FINCEN Feb. 24, 2011), the federal
regulation defining the term “signature or other authority.” That federal regulation provides that
“[e]ach United States person having a financial interest in, or signature or other authority over, a
bank, securities, or other financial account in a foreign country shall report such relationship to
the Commissioner of Internal Revenue for each year in which such relationship exists and shall
provide such information as shall be specified in a reporting form prescribed under 31 U.S.C.
5314 to be filed by such persons.” 31 C.F.R. 1010.350(a); see also United States v. Garrity,
2019 WL 1004584, at *2 (D. Conn. Feb. 28, 2019) (outlining statutory and regulatory history of
willful FBAR penalty). The regulation further defines “signature or other authority” as “the
authority of an individual (alone or in conjunction with another) to control the disposition of
money, funds or other assets held in a financial account by direct communication (whether in
writing or otherwise) to the person with whom the financial account is maintained.” 31 C.F.R.
1010.350(f) (emphasis added).
FINCEN inserted the phrase “direct communication” into the regulation in response to a
large number of requests seeking clarification of the definition of “signature or other authority.”
The insertion of the phrase “direct communication” was designed to make clear that an
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individual was subject to the FBAR filing requirement “only if the individual has the authority to
directly deliver instructions to the foreign financial institution.” See Amendment to the Bank
Secrecy Act Regulations—Reports of Foreign Financial Accounts, 76 Fed. Reg. 10234, 10235
(Feb. 24, 2011). FINCEN further clarified that “[t]he test for determining whether an individual
has signature or other authority over an account is whether the foreign financial institution will
act upon a direct communication from that individual regarding the disposition of assets in
that account. The phrase ‘in conjunction with another’ is intended to address situations in which
the foreign financial institution requires a direct communication from more than one individual
regarding the disposition of assets in the account.” Id. at 10235-36 (emphasis added).
The government has never properly alleged, consistent with the governing regulations,
that Mr. Gaffey had actual signature or other authority over foreign financial accounts and has
produced no evidence whatsoever establishing that he did. Yet, the government has nonetheless
indicated that it may seek to present evidence that Mr. Gaffey had “other authority” over such
accounts notwithstanding the fact that the government has produced no evidence in discovery or
otherwise establishing that he had “other authority,” as that term is clearly defined by the
regulation.
At no time has the government produced evidence showing that Mr. Gaffey had the
authority to communicate directly with any foreign financial institution regarding the disposition
of funds. Thus, when counsel for Mr. Gaffey informed the government that Mr. Gaffey did not
have signature or other authority over a foreign financial account, Mr. Gaffey had fully and
properly complied with the May 2, 2017 subpoena. Again, the government never moved to
compel compliance.

Accordingly, the government should be precluded from introducing
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evidence that Mr. Gaffey failed to comply with the subpoena or, more broadly, from arguing that
he had “signature or other authority” over foreign financial accounts.
IV.

The Government Should Be Precluded from Offering The Testimony Of Summary
Witnesses
Federal Rule of Evidence 1006 provides that a “proponent may use a summary, chart, or

calculation to prove the content of voluminous writings, recordings, or photographs that cannot
be conveniently examined in court.” Evidence admitted under Rule 1006 must otherwise be
admissible and remains subject to the usual objections under the rules of evidence and the
Constitution. United States v. Milkiewicz, 470 F.3d 390, 396 (1st Cir. 2006). The proponent
must show that voluminous source materials are what the proponent claims them to be and that
the summary accurately summarizes the source materials. Id. A summary witness cannot tell
the jury what is in the evidence or what inferences to draw from the evidence. United States v.
Barnwell, 2017 WL 1063457, at *2 (S.D.N.Y. Mar. 20, 2017) (quoting United States v.
Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997)); see also Fagiola v. Nat’l Gypsum Co. AC
& S., Inc., 906 F.2d 53, 57 (2d. Cir. 1990) (summary witness’s role is to provide “foundation
testimony connecting [a summary] with the underlying evidence summarized”); United States v.
Norris, 2010 WL 11463301, at *1 (N.D.N.Y. Aug. 24, 2010) (summary witnesses testifying as to
bulk financial records already admitted in evidence and broadly summarizing the evidence
previously submitted is inappropriate).
“[W]hen summaries are used, the court must ascertain with certainty that they are based
upon and fairly represent competent evidence already before the jury.” United States v. Conlin,
551 F.2d 534, 538 (2d Cir. 1977) (quoting Gordon v. United States, 438 F.2d 858, 876 (5th Cir.
1971)). A summary chart must be based on foundation testimony or documents connecting it
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with the underlying evidence summarized, and must be based upon and fairly represent
competent evidence already before the jury. United States v. Koskerides, 877 F.2d 1129, 1134
(2d Cir. 1989); Untied States v. Citron, 783 F.2d 307, 316 (2d Cir. 1986); United States v.
Jasper, 2003 WL 221740, at *2 (S.D.N.Y. Jan. 31, 2003).
District courts must be vigilant gatekeepers when the government seeks summary
witnesses and the government should be mindful of the boundaries of such testimony.
See United States v. Dukagjini, 326 F.3d 45, 56 (2d Cir. 2003); see also Barnwell, 2017 WL
1063457, at *2 (citing United States v. Grinage, 390 F.3d 746, 750 (2d Cir. 2004)) (“a summary
witness for the Government” cannot tell the jury “what [is] in the evidence” and “what
inferences to draw from it” under Federal Rule of Evidence 701)). A summary “witness should
be advised ahead of any testimony that she must avoid adding any gloss of expertise when she
performs this function. Her role is to testify as a summary witness on behalf of the IRS, not to
lend an aura of credibility to any lay opinion regarding Defendant’s culpability.” Barnwell, 2017
WL 1063457, at *3 (citing Dukagjini, 326 F.3d at 53).
Here, the government provided notice that it intends on offering three summary witnesses
pursuant to Federal Rules of Evidence 701 and 1006. See Buehler Dec., Ex. 4. The testimony of
these three witnesses should be precluded because the proffered testimony is not proper
summary witness testimony.

Instead, the proffered testimony constitutes inappropriate

conclusions of law and fact that would usurp the Court’s authority to instruct the jury on the law
and invade the province of the jury to make findings of fact.
The government intends to call summary witnesses to testify that distributions to the
Revack entities from various private equity firms, including the proceeds of the sale of certain
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stock, was “income” to Mr. von der Goltz and that Mr. von der Goltz therefore owed tax on that
“income.” The summary witnesses will also provide “an estimate as to the amount that von der
Goltz would have been obligated to pay had he entered the Offshore Voluntary Disclosure
Program” and identify various accounts held in the name of various offshore entities over which
the government claims Mr. von der Goltz and Mr. Gaffey had “signature or other authority.”
None of these topics are properly introduced through summary witnesses. The questions
of whether distributions to the Revack entities are “income” to Mr. von der Goltz, whether Mr.
von der Goltz owed tax on that income, and whether Mr. von der Goltz or Mr. Gaffey had
signature or other authority over foreign financial accounts are ultimate questions of fact to be
decided by the jury based on appropriate instructions of the law from the Court. Indeed, these
questions go to the very core of the case and will be the subject of vigorous argument from the
defense. If the government were permitted to offer evidence from a summary witness that
certain distributions constituted income to Mr. von der Goltz, as opposed to a return of
investment to a corporate entity, the summary witness would be taking this crucial issue out of
the hands of the jury. Similarly, the hypothetical calculation of the amount that Mr. von der
Goltz would have paid had he entered the Offshore Voluntary Disclosure Program is speculative,
irrelevant, and highly prejudicial as the calculation assumes that Mr. von der Goltz failed to
report foreign bank accounts on FBARs and that Mr. von der Goltz therefore would have been
subject to FBAR civil penalties for failing to file FBARs.
The summary witnesses’ conclusions regarding whether distributions are “income” to
Mr. von der Goltz and whether Mr. von der Goltz and Mr. Gaffey were required to file FBARs
are opinions based on hearsay and should be precluded. See Ferrari Club of America, Inc. v.
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Bourdage, 2017 WL 1498080, at *7 (W.D.N.Y. Apr. 25, 2017) (summary witness could testify
as to the categories of expenses enumerated in his report but was not allowed to “opine as to his
conclusions that any categories are questionable, appropriate, inappropriate, or otherwise”
because “any gloss on the expenses that [the summary witness] is summarizing would cross into
impermissible expert testimony”); see also Grinage, 390 F.3d at 751 (“the agent’s testimony as
to his interpretations of the calls went beyond permissible lay opinion testimony under Rule
701(b) because, rather than being helpful to the jury, it usurped the jury’s function. Moreover . .
. the agent was presented to the jury with an aura of expertise and authority which increased the
risk that the jury would be swayed by his testimony, rather than rely on its own interpretation of
the calls.”). Accordingly, a summary witness may testify as to summaries of transactions, but
may not offer any kind of conclusion as to what the transactions mean to the case.
The fact that the proffered summary witness testimony falls outside the scope of Rule
1006 is underscored by the fact that the summary witnesses have already “calculate[d] von der
Goltz’s known income” to arrive at a “loss amount” before a single document has been
introduced into evidence or a single witness has been called to testify. Any characterization of
these payments by summary witnesses is both improper and highly prejudicial evidence pursuant
to Rule 403.

Again, it bears repeating that the categorization of particular payments or

distributions – as income versus loans versus returns of investment versus something else – is
precisely what the jury will be asked to do after the evidence has been presented.
Simply put, based on the government’s notice, the government’s summary witnesses will
not merely summarize admissible evidence that may be introduced at trial. The summary
witnesses will instead be concluding that Mr. von der Goltz received “income” that he did not
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report to the IRS and that he did not pay tax on that income. This testimony, by definition, falls
outside of the scope of Rule 1006, would be highly prejudicial, and should not be admitted.
V.

Mr. Gaffey Joins In Mr. von der Goltz’s Motions In Limine
Mr. Gaffey joins in Mr. von der Goltz’s motions in limine and incorporates them by

reference herein.
CONCLUSION
For the foregoing reasons, the Court should grant Mr. Gaffey’s motions in limine.
In addition, as the Court knows, the government has not yet produced to the defendants
its list of unindicted co-conspirators, its list of witnesses, the entirety of the 3500 material, and
the remaining discovery.

Accordingly, Mr. Gaffey respectfully reserves his right to file

additional motions in limine and to object to the admissibility of any proffered evidence at trial.

Respectfully submitted,
Hogan Lovells US LLP
/s/ William J. Lovett
William J. Lovett
125 High Street, Suite 2010
Boston, MA 02110
Telephone: (617) 371-1007
/s/ Robert B. Buehler
Robert B. Buehler
390 Madison Avenue
New York, NY 10017
Telephone: (212) 918-3261
Attorneys for Richard Gaffey
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