Case 1:18-cr-00693-RMB Document 157 Filed 12/09/19 Page 1 of 25

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
- against No. S6 18 Cr. 693 (RMB)
RICHARD GAFFEY and
HARALD JOACHIM VON DER GOLTZ,
Defendants.

MEMORANDUM OF LAW IN SUPPORT OF
HARALD JOACHIM VON DER GOLTZ’S MOTIONS IN LIMINE

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TABLE OF CONTENTS
Page
I.

THE COURT SHOULD PRECLUDE THE GOVERNMENT FROM
REFERRING TO THE REVACK ENTITIES AS “SHELL” COMPANIES. ....................1

II.

THE COURT SHOULD PRECLUDE THE GOVERNMENT FROM
REFERRING TO PANAMA, THE BRITISH VIRGIN ISLANDS, AND OTHER
FOREIGN JURISDICTIONS AS “TAX HAVENS.”.........................................................3

III.

THE COURT SHOULD EXCLUDE ARGUMENT, EVIDENCE, AND
REFERENCE TO “VICTIMS” OTHER THAN THE U.S. DEPARTMENT OF
THE TREASURY................................................................................................................4

IV.

V.

A.

Argument, Evidence, And Reference To “Victims” Other Than The U.S.
Department Of The Treasury Is Irrelevant...............................................................5

B.

Argument, Evidence, And Reference To “Victims” Other Than The
Treasury Department Is Substantially More Prejudicial Than Probative. ...............6

THE COURT SHOULD EXCLUDE ANY EVIDENCE REGARDING MR.
VON DER GOLTZ’S EFFORTS TO COMPLY WITH A GRAND JURY
SUBPOENA. .......................................................................................................................9
A.

Background ............................................................................................................10

B.

Argument ...............................................................................................................12
1.

The contempt order is inadmissible hearsay..............................................12

2.

The Court should exclude evidence relating to Mr. von der Goltz’s
efforts to comply with the subpoena..........................................................13
(a)

The government’s attempt to use Mr. von der Goltz’s
invocation of his Fifth Amendment privilege against him at
trial is improper..............................................................................13

(b)

Mr. von der Goltz’s efforts to comply with the subpoena
and obtain a procedural vehicle to appeal the compulsion
order are not direct evidence of the crimes charged in the
Sixth Superseding Indictment. .......................................................15

(c)

The evidence is inadmissible under Rule 404(b)...........................17

MR. VON DER GOLTZ JOINS IN RICHARD GAFFEY’S MOTIONS IN
LIMINE. .............................................................................................................................19

CONCLUSION..............................................................................................................................20
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TABLE OF AUTHORITIES
Page(s)
Cases
Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co. Americas,
No. 04 Civ. 10014, 2009 WL 3111766 (S.D.N.Y. Sept. 28, 2009)....................................... 1, 3
Arlio v. Lively,
474 F.3d 46 (2d Cir. 2007) ........................................................................................................ 5
Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc.,
138 F. Supp. 2d 357 (E.D.N.Y. 2001) ....................................................................................... 5
Doe v. United States,
487 U.S. 201 (1988)................................................................................................................. 11
Greycas, Inc. v. Proud,
826 F.2d 1560 (7th Cir. 1987) ................................................................................................. 12
Griffin v. California,
380 U.S. 609 (1965)................................................................................................................. 14
Hart v. RCI Hosp. Holdings, Inc.,
90 F. Supp. 3d 250 (S.D.N.Y. 2015) ....................................................................................... 19
Highland Capital Mgmt., L.P. v. Schneider,
551 F. Supp. 2d 173 (S.D.N.Y. 2008) ............................................................................... 1, 3, 6
MF Glob. Holdings Ltd. v. PricewaterhouseCoopers LLP,
232 F. Supp. 3d 558 (S.D.N.Y. 2017) ....................................................................................... 1
Miller UK Ltd. v. Caterpillar, Inc.,
No. 10 Civ. 3770, 2015 WL 7351674 (N.D. Ill. Nov. 20, 2015)............................................... 4
Ricketts v. City of Hartford,
74 F.3d 1397 (2d Cir. 1996) .................................................................................................... 19
United States v. Aboumoussallem,
726 F.2d 906 (2d Cir. 1984) .................................................................................................... 19
United States v. Ahmed,
No. 14 Cr. 277, 2016 WL 3647686 (E.D.N.Y. July 1, 2016).................................................... 8
United States v. Allen,
864 F.3d 63 (2d Cir. 2017) .............................................................................................. 6, 7, 14
United States v. Boustani,
No. S1 18 Cr. 681(WFK) (E.D.N.Y. Sept. 26, 2019)............................................................ 2, 3
United States v. Brand,
467 F.3d 179 (2d Cir. 2006) .................................................................................................... 17
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United States v. Coscia,
No. 14 Cr. 551, 2015 WL 6153602 (N.D. Ill. Oct. 19, 2015).................................................... 4
United States v. Curley,
639 F.3d 50 (2d Cir. 2011) ...................................................................................................... 17
United States v. D’Anna,
450 F.2d 1201 (2d Cir. 1971) .................................................................................................... 9
United States v. Demos,
No. 16 Cr. 220 (D. Conn. Mar. 19, 2018)........................................................................... 6, 7, 8
United States v. Downing,
297 F.3d 52 (2d Cir. 2002) ...................................................................................................... 17
United States v. Dowtin,
No. 10 Cr. 657, 2012 WL 7679552 (E.D.N.Y. Nov. 20, 2012)................................................. 7
United States v. Doyle,
No. 16 Cr. 506, 2018 WL 1902506 (S.D.N.Y. Apr. 19, 2018).......................................... 14, 15
United States v. Garcia,
291 F.3d 127 (2d Cir. 2002) .................................................................................................... 17
United States v. Grey,
891 F.3d 1054 (D.C. Cir. 2018)............................................................................................... 12
United States v. Kaplan,
490 F.3d 110 (2d Cir. 2007) ...................................................................................................... 7
United States v. Martoma,
No. 12 Cr. 973, 2014 WL 31191 (S.D.N.Y. Jan. 6, 2014) .......................................... 15, 16, 17
United States v. Massino,
546 F.3d 123 (2d Cir. 2008) .................................................................................................... 17
United States v. Morris,
573 F. App’x 712 (10th Cir. 2014) ............................................................................................ 9
United States v. Okatan,
728 F.3d 111 (2d Cir. 2013) .................................................................................................... 14
United States v. Palma,
473 F.3d 899 (8th Cir. 2007) ................................................................................................. 8, 9
United States v. Schatzle,
901 F.2d 252 (2d Cir. 1990) ...................................................................................................... 8
United States v. Scott,
677 F.3d 72 (2d Cir. 2012) ...................................................................................................... 19
United States v. Sine,
493 F.3d 1021 (9th Cir. 2007) ................................................................................................. 12
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United States v. Sterling,
No. 16 Cr. 488, 2017 WL 2304024 (S.D.N.Y. May 24, 2017) ................................................. 8
United States v. Watts,
934 F. Supp. 2d 451 (E.D.N.Y. 2013) ............................................................................... 1, 2, 3
Rules and Regulations
Fed. R. Evid.401 ............................................................................................................................. 5
Fed. R. Evid.402 ............................................................................................................................. 5
Fed. R. Evid.403 ..................................................................................................................... 1, 3, 6
Fed. R. Evid.404 ................................................................................................................... 9, 7, 18
Fed. R. Evid.802 ............................................................................................................................. 9
Other Authorities
The Laundromat
(Netflix 2019) ............................................................................................................................. 2

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Defendant Harald Joachim von der Goltz respectfully submits this memorandum of law
in support of his motions in limine.
I.

THE COURT SHOULD PRECLUDE THE GOVERNMENT FROM REFERRING
TO THE REVACK ENTITIES AS “SHELL” COMPANIES.
The government should not be permitted to call the Revack Foundation, Emjo

Investments Ltd., or any of the other investment entities that Mr. von der Goltz managed
“shells,” “shell” companies, or any variant of that term because that pejorative description has no
evidentiary value while creating an undeniable risk of unfair prejudice. Courts regularly utilize
Rule 403 of the Federal Rules of Evidence to preclude parties and their witnesses from using
pejorative or loaded terms due to the inherent danger of unfair prejudice. See, e.g., Aristocrat
Leisure Ltd. v. Deutsche Bank Tr. Co. Americas, No. 04 Civ. 10014, 2009 WL 3111766, at *7
(S.D.N.Y. Sept. 28, 2009) (precluding the use of the phrase “tax haven” on the ground that it is
inflammatory and cautioning the parties against using “inflammatory terms and making
derogatory statements that do not bear on the issues being tried”); Highland Capital Mgmt., L.P.
v. Schneider, 551 F. Supp. 2d 173, 193 (S.D.N.Y. 2008) (precluding parties from
“characteriz[ing] admissible evidence and testimony as ‘securities fraud,’ ‘illegal,’ ‘insider
trading,’ ‘inside information,’ and ‘market manipulation’”); MF Glob. Holdings Ltd. v.
PricewaterhouseCoopers LLP, 232 F. Supp. 3d 558, 570 (S.D.N.Y. 2017) (“[C]ourts often
prohibit the use of certain pejorative terms when such categorizations [are] inflammatory and
unnecessary to prove a claim and such statements do not bear on the issues being tried.”).1
The Honorable Kiyo A. Matsumoto addressed this very question in United States v.
Watts, 934 F. Supp. 2d 451, 482 (E.D.N.Y. 2013), and correctly precluded the use of the terms

1

Unless otherwise noted, internal citations, quotation marks, and alterations have been
removed from citations in this brief.
1

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“shell company” and “shell corporation.” In Watts, the government argued there was no basis to
preclude it or witnesses from using such language, because the terms are not pejorative. Judge
Matsumoto rejected that argument, holding that terms like “‘shell company’ or ‘shell
corporation’ could be perceived to have a pejorative meaning” and “[n]o evidentiary value is
added by allowing [witnesses] to use those terms.” Id. As a result, the court “direct[ed] that the
government and any of its witnesses refrain from using the terms ‘shell corporation’ or ‘shell
company,’” and it further ordered that the government was “directed to expressly instruct its
witnesses to avoid use of the terms ‘shell corporation’ or ‘shell company’ at trial.” Id.; see also
United States v. Boustani, No. S1 18 Cr. 681 (E.D.N.Y. Sept. 26, 2019) (Dkt. No. 213) (granting
defendant’s unopposed request to preclude use of the term “shell company”). The Court should
do the same here.
The prejudice from this type of language is even more acute here than it was in Watts.
As a result of the sensational attention that the Panama Papers disclosures have drawn, including
hundreds of newspaper articles, numerous books, and a motion picture with several Oscar
winners in the cast and crew, the concept of “shell” companies has become a four-letter word
synonymous with illicit financial activity. For example, in one scene of The Laundromat, a
grieving widow played by Meryl Streep explains how, after her husband died in a boat accident,
no one could be held responsible because Mossack Fonseca “set up what they call a ‘shell,’ and
they sell shells” so that “[w]hen there’s an accident, like the one that took Joe and Barb, there’s
nobody that we can hold accountable. There’s nobody that we can, uh, ask questions, and, and,
and find out what happens next, you know? It’s just, uh, just empty shells. You see? It’s just
empty. It’s just shells.” And as a result of these “shell” companies, “somebody died, and
somebody’s making money from it, maybe lots of people.” The Laundromat (Netflix 2019).

2

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This dialogue is emblematic of the popular attitude toward “shell” companies and corporations.
Allowing the government and witnesses to characterize the companies at issue in this case using
this language presents an unacceptable risk of inflaming jurors’ biases.
The phrase “shell” companies, corporations, vehicles, entities, or any other variant will
offer “no evidentiary value” at trial, Watts, 934 F. Supp. 2d at 482, but will evoke a sinister
image like denying compensation to the victims of tragic accidents. Its probative value is
substantially outweighed by the risk of unfair prejudice. As in Watts and Boustani, the Court
should preclude the government from using that kind of language and it should require the
government to instruct its witnesses to heed that order as well.
II.

THE COURT SHOULD PRECLUDE THE GOVERNMENT FROM REFERRING
TO PANAMA, THE BRITISH VIRGIN ISLANDS, AND OTHER FOREIGN
JURISDICTIONS AS “TAX HAVENS.”
For reasons analogous to the prejudicial effect of the term “shell company,” the Court

should preclude the government from using the phrase “tax haven.” That phrase similarly runs
afoul of Rule 403 of the Federal Rules of Evidence. In Aristocrat Leisure Limited, 2009 WL
3111766, at *7, the Honorable Peter K. Leisure considered this very issue and held the phrase
“tax haven” was inadmissible. The defendants in that case asked the Court to preclude use of a
number of terms including “tax haven.” Id. As noted above in Section I, Judge Leisure stated
that in prior cases the court had “prohibited the use of pejorative terms when such
categorizations were inflammatory and unnecessary to prove a claim.” Id.; see also Highland
Capital Mgmt., 551 F. Supp. 2d at 193 (granting motion in limine precluding parties from
“characteriz[ing] admissible evidence and testimony as ‘securities fraud,’ ‘illegal,’ ‘insider
trading,’ ‘inside information,’ and ‘market manipulation’ on Rule 403 grounds”). In Aristocrat
Leisure, Judge Leisure held that the term “tax haven” was “irrelevant and inflammatory on its
face” and thus impermissible under Rule 403. Id. Other courts considering the term “tax haven”
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have reached similar conclusions. See, e.g., Miller UK Ltd. v. Caterpillar, Inc., No. 10 Civ.
3770, 2015 WL 7351674, at *10 (N.D. Ill. Nov. 20, 2015) (“the term ‘tax haven’ has negative
connotations that would unduly prejudice” movant); United States v. Coscia, No. 14 Cr. 551,
2015 WL 6153602, at *3 (N.D. Ill. Oct. 19, 2015) (describing “tax haven” as carrying
“inflammatory connotations”).
Any possible probative value of the phrase “tax haven” or similar pejorative description
of the tax status of offshore jurisdictions is substantially outweighed by the unfair prejudice it
would cause to Mr. von der Goltz. The Court should preclude use of this language.
III.

THE COURT SHOULD EXCLUDE ARGUMENT, EVIDENCE, AND
REFERENCE TO “VICTIMS” OTHER THAN THE U.S. DEPARTMENT OF
THE TREASURY
The only relevant victim alleged in this case is the United States Treasury, and the

government should not be permitted to refer to, introduce evidence, or argue that there are any
other victims. This case is premised on the misguided theory that Mr. von der Goltz conspired to
hide his assets so he could avoid tax obligations. The jury’s consideration of that question
should not be tainted by references to other “victims,” such as the citizens of the United States.
The only reason for the government to refer to any victims aside from the Treasury is to incite
indignation, inflame the passions of the jury, and make it more likely that the jury will convict
regardless of deficiencies in the government’s case. Permitting the government to pursue this
theme will also result in a time-consuming and distracting mini-trial in which the parties
needlessly will dispute the causation of such harm, even though that harm and its cause are
irrelevant to every issue that the jury will be asked to decide. And even if such evidence did
have some limited probative value, it is substantially outweighed by the risk that it unfairly
would prejudice the defense and mislead the jury about what this case is actually about.

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A.

Argument, Evidence, And Reference To “Victims” Other Than The U.S.
Department Of The Treasury Is Irrelevant.

This case centers on whether Mr. von der Goltz conspired to evade paying taxes on
income earned by the Revack entities and then lied about whether he owned those entities. See,
e.g., Sixth Superseding Indictment (Dkt. No. 149) at ¶¶ 2 (alleging Mr. von der Goltz “attempted
to evade and defeat a substantial part of the income tax due and owing to the United States of
America”); 4 (alleging Mr. von der Goltz “participated in a fraudulent scheme to help . . .
conceal [Mr. von der Goltz’s] assets and investments, and the income generated by those assets
and investments”); 6 (alleging Mr. von der Goltz transferred “monetary instruments and funds . .
. with the intent to promote the carrying on of” the fraud specified in paragraph 4); 7 (alleging
Mr. von der Goltz failed to file “with the United States Department of the Treasury an FBAR
disclosing” Mr. von der Goltz’ foreign bank accounts); 8, 9 (alleging Mr. von der Goltz made
false statements to the government about his ownership of the entities).
Evidence is inadmissible unless it is relevant. Fed. R. Evid. 401–402. If a piece of
evidence “does not tend to prove a material fact” that is “of consequence to the determination of
the action,” it is “irrelevant” and inadmissible. Arlio v. Lively, 474 F.3d 46, 52 (2d Cir. 2007).
Comments from the government or its witnesses regarding harm purportedly suffered by any
purported victim other than the United States Department of the Treasury are of no value in
establishing the elements of the offenses that the government must prove at trial. Blue Cross &
Blue Shield of N.J., Inc. v. Philip Morris, Inc., 138 F. Supp. 2d 357, 365 (E.D.N.Y. 2001) (an
“evidentiary proposition is considered ‘relevant’ only if it is logically related, either directly or
through an inferential chain of proof, to at least one of the formal elements of the charges made
or defenses raised in the case”). Because such evidence is not relevant, it is not admissible. Fed.
R. Evid. 402.
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The risk of juror confusion and unfair prejudice is particularly pronounced in fraud cases,
and a number of courts have narrowly limited what the government may argue in those cases. In
United States v. Allen, for example, a case about alleged manipulation of LIBOR, the Honorable
Jed S. Rakoff precluded the government from arguing that the defendant’s conduct harmed
Rabobank, a Dutch financial institution, because the indictment explicitly alleged that the
defendant was being prosecuted for alleged harm to Bank of America and Citibank, not
Rabobank. See United States v. Allen, No. 14 Cr. 272 (S.D.N.Y. Oct. 19 & 21, 2015) (attached
as Exhibit A, 293:11–294:15, 576:16–581:2). Similarly, in United States v. Demos, a case
involving alleged fraud in the market for residential mortgage-backed securities, the court
precluded “any reference to the 2007 financial crisis and any reference to [harm to] taxpayers”
because taxpayer harm was irrelevant and prejudicial. See No. 16 Cr. 220 (D. Conn. Mar. 19,
2018) (Dkt. No. 244).
The only victim alleged in this case is the United States Treasury. No other purported
victim is relevant under Rule 401.
B.

Argument, Evidence, And Reference To “Victims” Other Than The
Treasury Department Is Substantially More Prejudicial Than Probative.

Even if other victims are relevant under Rule 401, the “probative value” of testimony
about them “is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading a jury, undue delay, [and] wasting time.”

Fed. R. Evid. 403.

Permitting the

government to present evidence and argue to the jury about such alleged victims will only make
the jury’s job more difficult by confusing them about the government’s theory of the case and the
evidence that does and does not satisfy the government’s burden of proof. Highland Capital
Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 192 (S.D.N.Y. 2008) (evidence of harms to nonparties inadmissible when “the only apparent reason for such trial strategy would be to show the
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jury that defendants are bad people”). The jurors could conclude, mistakenly, that even though
the government did not prove that the Treasury Department was deprived of tax revenue, Mr.
von der Goltz is guilty because some other victim was harmed. And, because the jury deliberates
in secret, neither the Court nor the parties will have any way of ascertaining such a
misunderstanding and will not be able to intervene. Given the stakes, the Court should preclude
the government and its witnesses from making such references or offering evidence of such
purported harm. United States v. Dowtin, No. 10 Cr. 657, 2012 WL 7679552, at *5 (E.D.N.Y.
Nov. 20, 2012) (“[C]ourts must be scrupulous to avoid the spectre of guilt by association—or,
more likely, guilt by confusion.”).
The need for an order precluding this evidence is particularly acute given the widespread
attention to and condemnation of Mossack Fonseca and anyone related to the Panama Papers.
Comments about harm to United States citizens may lead the jury erroneously to assume that Mr.
von der Goltz is responsible for the widespread ramifications of the alleged misdeeds revealed by
the Panama Papers.

This is not remotely true, and allowing the government to introduce

evidence or argument that carries such an implication will ensure that at least some “jurors [will]
render a decision on an improper,” “emotional” basis. United States v. Kaplan, 490 F.3d 110,
122 (2d Cir. 2007); see also Allen, No. 14 Cr. 272 (S.D.N.Y. Oct. 13, 2015) (attached as Exhibit
A 32:9–18) (where indictment alleged that the defendant schemed to defraud trading
counterparties in the LIBOR market, the court precluded the government from offering evidence
or argument that the defendant’s conduct negatively affected “student loans,” “mortgages and
credit cards” because such evidence of harm to consumers was entirely “remote from the charges
in this case [and was] also calculated to invoke sympathy for the government’s position and lack
of sympathy for the defendant”); Demos, No. 16 Cr. 220 (D. Conn. March 19, 2018), Dkt. 244

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(even where evidence had “probative value,” preclusion was required, given that “jurors could
believe that their own wellbeing or that of noncommercial, unsophisticated parties was
implicated by the defendant’s conduct”).
Allowing the government to pursue this theme will also waste the jury’s time and devolve
into a confusing and time-consuming trial within a trial. If the government argues or introduces
evidence relating to purported other victims, Mr. von der Goltz will be obligated to defend
himself by presenting evidence to refute the allegations. United States v. Schatzle, 901 F.2d 252,
256 (2d Cir. 1990) (district court properly precluded evidence and argument that would have
required a “mini trial” and would have “focus[ed] the jury upon the wrong event”). The
presentation of relevant evidence in this case is likely to take three of four weeks. There is no
reason to impose further burdens on the jury or the Court by requiring them to sit through the
presentation of evidence that ultimately has no probative value but is necessary to rebut the
government’s accusations and insinuations. United States v. Sterling, No. 16 Cr. 488, 2017 WL
2304024, at *6 (S.D.N.Y. May 24, 2017) (precluding evidence that “could only have caused
further irrelevant distraction”).
References to United States citizens and taxpayers as victims carry the additional risk of
improperly inflaming the passions of the jury and depriving Mr. von der Goltz of his Sixth
Amendment fair-trial right. Such remarks “encourag[e] the jury to depart from neutrality and to
decide the case on the basis of personal interest and bias rather than on the evidence.” United
States v. Ahmed, No. 14 Cr. 277, 2016 WL 3647686, at *11 (E.D.N.Y. July 1, 2016). Numerous
courts have reached the same conclusion about the potential unfair prejudice that can arise from
this kind of argument. See, e.g., United States v. Palma, 473 F.3d 899, 902 (8th Cir. 2007)
(“Remarks invoking the individual pecuniary interests of jurors as taxpayers are universally

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viewed as improper.”); United States v. D’Anna, 450 F.2d 1201, 1206 (2d Cir. 1971) (describing
as “improper” prosecutor noting that jurors “as citizens carry an additional burden when
someone does not pay his taxes”); United States v. Morris, 573 F. App’x 712, 725 (10th Cir.
2014) (describing prosecutor’s description of “stealing from the IRS” amounting “to stealing
from everyone” as potentially “improper”). Such references “seriously endanger a defendant’s
right to a fair trial,” D’Anna, 450 F.2d at 1206, and the Court should preclude them.
The Court should not permit the government to turn a case about underpaying taxes into a
case about causing widespread harm to the financial system or U.S. citizens.
IV.

THE COURT SHOULD EXCLUDE ANY EVIDENCE REGARDING MR. VON
DER GOLTZ’S EFFORTS TO COMPLY WITH A GRAND JURY SUBPOENA.
The Court should exclude evidence relating to Mr. von der Goltz’s response to a grand

jury subpoena during the investigation that preceded his indictment because that evidence is
inadmissible under Rules 404(b) and 802 of the Federal Rules of Evidence. On December 2,
2019, the government provided notice that it “may” seek to introduce at trial evidence that Mr.
von der Goltz “failed to comply with a subpoena issued to him for documents relating to bank
accounts at Rothschild bank, including his continued noncompliance after being ordered by the
Court to comply with the subpoena, up to and including being held in contempt of court for his
non-compliance.” See Exhibit B. The government contends the evidence is “admissible as
direct evidence of the crimes charged” and “would be admissible pursuant to Rule 404(b) as
proof of von der Goltz’s motive, opportunity, intent, preparation, plan, knowledge, identity,
and/or absence of mistake or accident.” Id. Such evidence is inadmissible and improper and
should be excluded.

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A.

Background

The grand jury issued a subpoena to Mr. von der Goltz on October 30, 2017 seeking
documents relating to certain accounts at Rothschild Bank. The subpoena sought “all records . . .
including, but not limited bank statements, account opening documents, correspondence, and the
entities’ organizational documents” relating to accounts in the name of Andrena Familienstiftung
and Emjo Investments Limited. See Exhibit C. At the time the subpoena was issued, it was clear
that the government erroneously believed that Mr. von der Goltz was the beneficial owner of
these accounts, even though, in fact, he only managed the accounts on behalf his mother, the true
beneficial owner. In these circumstances, responding to the subpoena potentially implicated Mr.
von der Goltz’s Fifth Amendment right against self-incrimination. As a result, for all documents
not required to be maintained under applicable IRS regulations, Mr. von der Goltz asserted his
Fifth Amendment act-of-production privilege. See Exhibit D.
The government moved to compel Mr. von der Goltz to produce the documents, and on
April 9, 2018, the Honorably William H. Pauley III issued an order compelling Mr. von der
Goltz to produce additional documents. See Exhibit E. The order rejected Mr. von der Goltz’s
assertion of his Fifth Amendment privilege based on the “‘foregone conclusion’ doctrine, which
excludes from Fifth Amendment protection documents whose existence and location are known
by the government, and the production of which would add little or nothing to the sum total of
the government’s information by conceding that the producing party in fact has the documents.”
Id. at 6.
Following the compulsion order, Mr. von der Goltz produced all responsive records in his
possession, including all responsive records dating back to 2005. This included hundreds of
pages of records, including ones that Baker & McKenzie had obtained from Rothschild three
years earlier. The government, however, believed that Rothschild Bank itself—not Mr. von der
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Goltz personally—had additional documents in its custody that were responsive to the subpoena.
The government insisted that Mr. von der Goltz request the documents from Rothschild. Before
Rothschild would release the documents, however, it required Mr. von der Goltz to make
representations about his ownership of the account that went far beyond what was at issue on the
motion to compel. For example, Rothschild required that Mr. von der Goltz explicitly affirm that
he was the holder of the accounts in question, which would have forced Mr. von der Goltz to
concede a key fact at issue in this criminal case and one that he vigorously denies—that he was
the beneficial owner and not his mother. See Exhibit F. While Mr. von der Goltz made the kind
of request contemplated by Doe v. United States, 487 U.S. 201 (1988), his counsel advised him
to “decline to execute the Rothschild Request in the absence of a court order directing him to do
so.” See id.; Exhibit G. Accordingly, after Mr. von der Goltz provided the release to Rothschild,
his counsel repeatedly inquired of Rothschild’s counsel whether Mr. von der Goltz’s release was
sufficient to obtain the records that the government sought in the subpoena. See Exhibit H, at
10–15 (describing correspondence between counsel for Mr. von der Goltz and counsel for
Rothschild) (exhibits omitted).
At the same time, given his counsel’s instruction not to make the representations that
Rothschild and the government insisted he make in order to comply with the compulsion order,
Mr. von der Goltz sought to appeal the compulsion order. The government, however, took the
position that the order was “not a final order from which [Mr. von der Goltz] [could] take an
appeal,” and that Mr. von der Goltz could appeal only if he first were held in contempt of the
order. See Exhibit I. The government proposed that if Mr. von der Goltz chose to pursue an
appeal of the compulsion order, it would request “a sanction of a fine of $1,000 per day, until the
day that [Mr. von der Goltz] produces the responsive records,” but “[i]n the event that a

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contempt order is issued, and [Mr. von der Goltz] takes a timely appeal from that order, [the
government would] agree to stay any fine until ten days after a decision by the Court of
Appeals.” Id.
As contemplated in the government’s letter, the government moved for a contempt order,
which Judge Pauley granted on October 15, 2018. Mr. von der Goltz subsequently filed a notice
of appeal. See Exhibit J.
The government now seeks to introduce:
Evidence that von der Goltz failed to comply with a subpoena
issued to him for documents relating to bank accounts at
Rothschild bank, including his continued noncompliance after
being ordered by the Court to comply with the subpoena, up to and
including being held in contempt of court for his non-compliance.
Exhibit B.
B.

Argument
1.

The contempt order is inadmissible hearsay.

“[N]umerous courts have held that civil judgments introduced in subsequent cases for the
truth of their underlying facts are inadmissible hearsay.” United States v. Grey, 891 F.3d 1054,
1058 (D.C. Cir. 2018); see also United States v. Sine, 493 F.3d 1021, 1036 (9th Cir. 2007);
Greycas, Inc. v. Proud, 826 F.2d 1560, 1567 (7th Cir. 1987). In Grey, the D.C. Circuit rejected
the government’s non-hearsay rationale for admitting the evidence because any relevance came
from “solely from the facts underlying the judgment (a.k.a. hearsay).” 891 F.3d at 1058. The
Court then reversed the lower court’s judgment, finding plain error in the district court’s
admission of the evidence. Id. at 1059. Just as in Grey, the only conceivable relevance in this
case of the civil contempt order against Mr. von der Goltz concerns “the facts underlying the
judgment (a.k.a. hearsay).” Id. at 1058. The Court should exclude the contempt order.

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2.

The Court should exclude evidence relating to Mr. von der Goltz’s
efforts to comply with the subpoena.

The only remaining question is whether the facts relating to Mr. von der Goltz’s efforts to
comply with the subpoena are a proper issue for trial. They are not. Whether Mr. von der
Goltz’s attempts to comply with the subpoena were sufficient is not relevant to whether he
conspired to understate his income to avoid taxes. Nor is this evidence appropriate Rule 404(b)
evidence. And the resulting mini-trial will further prolong an already complex case involving
thorny questions of tax law and an alleged 16-year conspiracy. Particularly given how limited
the probative value of this evidence is, the Court should exclude it.
(a)

The government’s attempt to use Mr. von der Goltz’s invocation of
his Fifth Amendment privilege against him at trial is improper.

If permitted to introduce evidence relating to Mr. von der Goltz’s efforts to comply with
the subpoena, the government unavoidably will encourage the jury to conclude Mr. von der
Goltz is guilty because he asserted his Fifth Amendment privilege in response to the subpoena.
As was demonstrated in the proceedings before Judge Pauley and described above, Mr. von der
Goltz sought to assert his constitutional right against self-incrimination. When the Court ruled
that complying with the subpoena would not violate that constitutional right, Mr. von der Goltz
requested that Rothschild release the records sought by the subpoena. Rothschild, however,
insisted on certain magic words that went far beyond what the compulsion order appeared to be
require. Mr. von der Goltz’s counsel instructed Mr. von der Goltz not to use Rothschild’s magic
words because they could amount to a testimonial concession of a key fact in dispute—whether
Mr. von der Goltz or his mother was the beneficial owner of the accounts. And at the same time,
Mr. von der Goltz pursued the only available procedural vehicle to appeal the compulsion order,
which the government itself suggested, which was to be held in contempt and appeal the
contempt order.
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Permitting the government to argue to the jury that it should infer that Mr. von der Goltz
committed a crime based on this series of events is no different from arguing to the jury that it
should infer a defendant is guilty when he declines to take the stand at trial. A “negative
comment by a judge or prosecutor on a defendant’s silence violates that defendant’s
constitutional right.” United States v. Allen, 864 F.3d 63, 81 (2d Cir. 2017). That is true even if
the invocation occurs prior to trial. United States v. Okatan, 728 F.3d 111, 119 (2d Cir. 2013)
(“Use of a defendant’s invocation of the [Fifth Amendment] privilege imposes the same cost no
matter the context in which that invocation is made.”). What the government is proposing to do
will do exactly that. The jury cannot consider whether Mr. von der Goltz failed to comply with
the subpoena without hearing that he invoked his Fifth Amendment privilege in response to the
subpoena. Nor can the government be heard to suggest that this evidence is appropriate because
the courts ultimately found his constitutional rights were not implicated and that he was required
to comply with the subpoena, especially since the government never argued, nor did any court
find, that Mr. von der Goltz’s invocation was frivolous. Allowing the government to use this
evidence against him will violate the bedrock constitutional principle that no adverse inference
may be drawn from a criminal defendant’s invocation of the constitutional right against selfincrimination. See Griffin v. California, 380 U.S. 609, 614 (1965) (“[C]omment on the refusal to
testify is a remnant of the inquisitorial system of criminal justice, which the Fifth Amendment
outlaws. It is a penalty imposed . . . for exercising a constitutional privilege. It cuts down on the
privilege by making its assertion costly.”).
The government tried to do the same thing in United States v. Doyle, No. 16 Cr. 506,
2018 WL 1902506, at *11 (S.D.N.Y. Apr. 19, 2018), and the court correctly precluded it from
doing so. Doyle held that, where the recipient of a grand jury subpoena’s invocation of her Fifth

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Amendment privilege was not in bad faith, evidence of a resulting contempt order was
inadmissible in a subsequent criminal proceeding. Id. Judge Pauley did not find—and the
government has never ever suggested—that Mr. von der Goltz’s assertion of his act-ofproduction privilege was in bad faith. Nor would the record support such a finding. As a result,
Doyle squarely applies and requires exclusion of this evidence.
(b)

Mr. von der Goltz’s efforts to comply with the subpoena and
obtain a procedural vehicle to appeal the compulsion order are not
direct evidence of the crimes charged in the Sixth Superseding
Indictment.

Even aside from the constitutional problem, the evidence is not admissible. Prior bad
acts may be admitted as direct evidence if it is “manifestly clear” that the evidence (1) is
“inextricably intertwined” with the evidence regarding the charges, (2) arose out of the “same
transaction or series of transactions as the charged offense,” or (3) is “necessary to complete the
story of the crime on trial.” United States v. Martoma, No. 12 Cr. 973, 2014 WL 31191, at *2
(S.D.N.Y. Jan. 6, 2014). “In deciding whether uncharged conduct is ‘inextricably intertwined’
with charged conduct—and thus admissible as direct evidence—courts have considered whether
the details of the uncharged transaction are necessary to understand the charged transaction.” Id.
Courts within the Second Circuit are reluctant to construe evidence relating to uncharged
conduct as direct evidence.

“Where it is not manifestly clear that the evidence in question is

intrinsic proof of the charged crime, the proper course is to proceed under Rule 404(b).” Id.
There is no basis to admit as direct evidence anything relating to the subpoena to Mr. von
der Goltz and his efforts to comply while not admitting a key fact in dispute in this criminal case.
The charges against Mr. von der Goltz center on whether he owned the Revack entities or his
mother did. If the jury finds that the government proved beyond a reasonable doubt that Mr. von
der Goltz owned the entities, then it may also find that he failed to pay taxes on income earned
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by the entities, failed to disclose bank accounts held by those entities, and made false statements
to the government about whether he owned those entities. The charged conspiracy allegedly
ended in 2016, the same year Mr. von der Goltz voluntarily met with the government to assist in
its investigation of Mossack Fonseca by describing his and the von der Goltz family’s
interactions with the firm. He is not charged with obstruction of justice or contempt.
The government’s theory appears to be that because Mr. von der Goltz was held in
contempt for failing to obtain documents from Rothschild, that somehow evidences that he
sought to conceal his ownership of the Rothschild accounts. The government apparently seeks to
rewrite history. As explained above, Mr. von der Goltz was held in contempt because it was the
only way he could appeal the compulsion order and because he could not obtain documents from
Rothschild unless he made a testimonial statement conceding a key issue in dispute in this
criminal case, which his counsel advised him not to do. The notion that Mr. von der Goltz was
obstructionist or sought to hide documents in Rothschild’s possession finds no support in the
record.
In these circumstances, the government cannot meet its very high burden to show that it
is “manifestly clear” that Mr. von der Goltz’s efforts to comply with the subpoena while
vindicating his constitutional right not to concede a key fact in the government’s case against
him (1) is “inextricably intertwined” with the evidence regarding the charges, (2) arose out of the
“same transaction or series of transactions as the charged offense,” or (3) is “necessary to
complete the story of the crime on trial.” Martoma, 2014 WL 31191, at *2. The jury will have
no difficulty determining whether the government proved beyond a reasonable doubt that Mr.
von der Goltz was the beneficial owner of the Rothschild accounts without hearing the stultifying
details about three-way negotiations among the government, Rothschild’s counsel, and Mr. von

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der Goltz’s counsel over the precise wording of a release to Rothschild, much less the rules
relating to final orders and interlocutory appeals.
Evidence relating to the subpoena and Mr. von der Goltz’s efforts to comply are not
admissible as direct evidence.
(c)

The evidence is inadmissible under Rule 404(b).

Nor is it admissible under Rule 404(b). Prior bad acts evidence may be admitted under
Rule 404(b) where it is “(1) offered for a proper purpose, (2) relevant, and (3) substantially more
probative than prejudicial.” Martoma, 2014 WL 31191, at *4. While the Second Circuit takes
an “inclusionary approach” to the admission of prior bad acts evidence, the “government may
not invoke Rule 404(b) and proceed to offer, carte blanche, any prior act of the defendant in the
same category of crime.” United States v. Garcia, 291 F.3d 127, 137 (2d Cir. 2002). “[D]istrict
courts should not presume that such evidence is relevant or admissible.” United States v. Curley,
639 F.3d 50, 56 (2d Cir. 2011). And even where it is, courts should exclude it unless it is
“substantially more probative than prejudicial.” United States v. Downing, 297 F.3d 52, 58 (2d
Cir. 2002); see also United States v. Brand, 467 F.3d 179, 198 (2d Cir. 2006) (considering
whether “the probative value of the prior act evidence substantially outweighed the danger of its
unfair prejudice”). Evidence is prejudicial if “it tends to have some adverse effect upon a
defendant beyond tending to prove the fact or issue that justified its admission into evidence.
This adverse effect may consist of a tendency of the evidence in question to prove some adverse
fact not properly in issue or unfairly to excite emotions against the defendant.” United States v.
Massino, 546 F.3d 123, 132–33 (2d Cir. 2008). “If the other acts tend to prove a fact not in issue
or to excite emotions against the defendant, they create a prejudicial effect.” Curley, 639 F.3d at
57.

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The government cannot identify any proper purpose under Rule 404(b) for this evidence.
In its notice, the government claims the evidence fits in every single 404(b) exception. Compare
Exhibit B (claiming the evidence would be “admissible pursuant to Rule 404(b) as proof of von
der Goltz’s motive, opportunity, intent, preparation, plan, knowledge, identity, and/or absence of
mistake or accident”) with Fed. R. Evid. 404(b) (exceptions include “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident”). This alone
shows what the government is trying to do: portray Mr. von der Goltz as a bad guy who sought
to impede the government’s investigation, in the hope that the jury will conclude that he
probably also sought to evade taxes. The reason the government cannot identify any actual Rule
404(b) exception for this evidence is because it is simply inadmissible propensity evidence.
Nor does the government’s attempt to articulate the relevance of the evidence solve the
problem.

The government’s notice claims that the evidence shows Mr. von der Goltz’s

“ownership and control of the Rothschild bank account . . . his consciousness of guilt, and his
continued efforts to conceal his assets from the United States government and to evade taxes.”
Exhibit B. The notion that asserting constitutional rights and obtaining an avenue to appeal a
compulsion order shows “consciousness of guilt” is farfetched. And the evidence shows that Mr.
von der Goltz worked diligently to obtain a release from Rothschild and was only unsuccessful
because he was unwilling to state that he was the beneficial owner of the account rather than his
mother—a hotly disputed issue on which every charge in the indictment relies.

The

government’s position thus boils down to the circular argument that Mr. von der Goltz sought to
“continue[ his] efforts to conceal his assets” because he refused to admit an allegation that he
denies and that the government will have to prove beyond a reasonable doubt at trial. That is not
proper 404(b) evidence.

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Even if the government could identify a proper purpose under Rule 404(b), the
probative–prejudice balancing does not justify admitting the evidence.

At a minimum,

permitting the government to make this an issue will spawn a confusing and irrelevant mini-trial
that ultimately adds very little to the government’s case against Mr. von der Goltz. The jury will
have to sit through evidence about, and then be instructed on, the byzantine details of the Fifth
Amendment act-of-production privilege and the procedure for appealing a non-final order in a
miscellaneous proceeding brought by order to show cause. This will waste time, confuse the
issues, and prolong an already complicated tax case expected to last three to four weeks. Hart v.
RCI Hosp. Holdings, Inc., 90 F. Supp. 3d 250, 280 (S.D.N.Y. 2015) (excluding evidence that
would occasion a “trial within a trial); Ricketts v. City of Hartford, 74 F.3d 1397, 1414 (2d Cir.
1996) (affirming exclusion of prior bad acts evidence that was “more confusing than helpfully
probative” due to the risk of a “trial within a trial”); United States v. Aboumoussallem, 726 F.2d
906, 912 (2d Cir. 1984). Moreover, even if the jury invests the time to understand this issue and
credits the government’s sinister spin on the evidence, the only conceivable conclusion the jurors
could draw from this evidence is that Mr. von der Goltz is the type of person who willfully defies
the law. That is precisely the inference that Rule 404(b) is designed to prohibit. See United
States v. Scott, 677 F.3d 72, 80 (2d Cir. 2012) (inference about “criminal propensity” is
“precisely what Rule 404(b) prohibits”).
The Court should exclude evidence relating to Mr. von der Goltz’s efforts to comply with
the subpoena.
V.

MR. VON DER GOLTZ JOINS IN RICHARD GAFFEY’S MOTIONS IN
LIMINE.
Mr. von der Goltz joins in Mr. Gaffey’s motions in limine and incorporates them by

reference here.
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CONCLUSION
For the foregoing reasons, the Court should (1) preclude the government from referring to
the Revack entities as “shell companies”; (2) preclude the government from referring to Panama
and other offshore jurisdictions as “tax havens”; (3) exclude argument, evidence, and reference
to “victims” other than the U.S. Department of Treasury; and (4) preclude the government from
offering evidence relating to Mr. von der Goltz’s response to a grand jury subpoena.
Dated: New York, New York
December 9, 2019

QUINN EMANUEL URQUHART
& SULLIVAN, LLP
/s/ William A. Burck
William A. Burck
Alexander B. Spiro
Daniel R. Koffmann
51 Madison Avenue, 22nd Floor
New York, New York
Tel: (212) 849-7000
Fax: (212) 849-7100
williamburck@quinnemanuel.com
alexspiro@quinnemanuel.com
danielkoffmann@quinnemanuel.com
Attorneys for Defendant Harald Joachim von der
Goltz

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