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

S6 18 Cr. 693 (RMB)

GOVERNMENT’S MOTIONS IN LIMINE
GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
DEBORAH CONNOR
Chief, Money Laundering and Asset
Recovery Section, Criminal Division
On the Memorandum:
EUN YOUNG CHOI and THANE REHN
Assistant United States Attorneys, United States Attorney’s Office, Southern District of New York
MICHAEL PARKER and PARKER TOBIN
Trial Attorneys, Criminal Division, United States Department of Justice

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Table of Contents
PRELIMINARY STATEMENT .................................................................................................... 1 
BACKGROUND ............................................................................................................................ 1 
I. Overview of Harald Joachim von der Goltz and Richard Gaffey’s Criminal Conduct ........... 1 
II. Von der Goltz’s use of Mossack Fonseca in the Creation and Maintenance of the Revack
Entities ........................................................................................................................................ 3 
III. The Evasion of Von der Goltz’s Reporting and Tax Obligations ......................................... 6 
A. Domestic Bank Accounts ................................................................................................... 7 
B. Foreign Bank Accounts ...................................................................................................... 8 
IV. Von der Goltz and Gaffey’s Efforts to Hide Von der Goltz’s Ownership of the Revack
Entities by Using the Mother’s Identity .................................................................................... 10 
V. Von der Goltz’s False Reports of Foreign Bank and Financial Accounts in 2014 .............. 13 
VI. The “Panama Papers” and von der Goltz’s False Statements to the Government.............. 14 
VII. The Investigation and Gaffey and von der Goltz’s Failure to Comply with Subpoenas... 15 
ARGUMENT ................................................................................................................................ 17 
I. Foreign Financial Records Are Admissible Pursuant to 18 U.S.C. § 3505 ........................... 17 
A. Background ...................................................................................................................... 17 
B. Applicable Law ................................................................................................................ 17 
C. Discussion ........................................................................................................................ 18 
II. Statements of the Defendants’ Agents and Co-Conspirators Are Admissible ..................... 20 
A. Background ...................................................................................................................... 20 
B. Applicable Law ................................................................................................................ 22 
C. Discussion ........................................................................................................................ 25 
III. Witness Testimony and Corroborating Evidence Authenticate the Portions of the Panama
Papers Database Obtained by the Government from a German Law Enforcement Agency .... 27 
A. Background ...................................................................................................................... 27 
B. Applicable Law ................................................................................................................ 30 
C. Discussion ........................................................................................................................ 31 
IV. Evidence of Gaffey’s Work With Client-1 is Admissible as to Each Defendant ............... 35 
A. Background ...................................................................................................................... 35 
B. Applicable Law ................................................................................................................ 36 
C. Discussion ........................................................................................................................ 38 
V. The Defendants Should be Precluded from Offering Self-Serving Hearsay ....................... 42 

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A. Background ...................................................................................................................... 42 
B. Applicable Law ................................................................................................................ 42 
C. Discussion ........................................................................................................................ 45 
VI. Von Der Goltz Should be Precluded from Asserting an Advice of Counsel Defense ....... 48 
A. Background ...................................................................................................................... 48 
B. Applicable Law ................................................................................................................ 52 
C. Discussion ........................................................................................................................ 53 
CONCLUSION ............................................................................................................................. 56 

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Table of Authorities
Cases 
Berkovich v. Hicks, 922 F.2d 1018, 1022 (2d Cir. 1991) ............................................................. 42
Bourjaily v. United States, 483 U.S. 171, 175 (1987) ............................................................ 23, 24
Bullcoming v. New Mexico, 564 U.S. 647, 657 (2011) ................................................................. 18
Crawford v. Washington, 541 U.S. 36, 59 (2004) ........................................................................ 18
Davis v. Velez, 797 F.3d 192, 200 (2d Cir. 2015) ......................................................................... 43
Elsevier B.V. v. UnitedHealth Group, Inc., 784 F. Supp. 2d 286, 292 (S.D.N.Y. 2011) ............. 31
Feis v. United States, 394 F. App’x 797, 799 (2d Cir. 2010) ....................................................... 23
Huddleston v. United States, 485 U.S. 681, 691-92 (1988) .......................................................... 38
In re Reserve Fund Sec. Litig., 09 Civ. 4346(PGG), 2012 WL 12354233 at *7-*8 ..................... 23
Kaur v. N.Y. City Health & Hospitals Corp., 688 F. Supp. 2d 317, 324 (S.D.N.Y. 2010) .......... 32
Lewis v. Velez, 149 F.R.D. 474, 487 (S.D.N.Y. 1993) ................................................................. 44
Lurie v. Wittner, 228 F.3d 113, 134 (2d Cir. 2000) ...................................................................... 52
Luv n Care Ltd. v. Regent Baby Prods. Corp., 986 F. Supp. 2d 400, 408 n.40 (S.D.N.Y. 2013) 32
Melendez–Diaz v. Massachusetts, 557 U.S. 305, 324, (2009) ...................................................... 19
Pappas v. Middle Earth Condo. Ass’n, 963 F.2d 534, 537 (2d Cir.1992) .................................... 23
SEC v. Scott, 565 F. Supp. 1513, 1534-35 (S.D.N.Y. 1983) ........................................................ 53
SEC v. Stoker, No. 11 Civ. 7388 (S.D.N.Y. filed Oct. 19, 2011) ................................................. 55
SEC v. Tourre, 950 F. Supp. 2d 666, 683 (S.D.N.Y. 2013).................................................... 52, 55
Stichting Ter Behartiging Van De Belangen Van Oudaandeelhouders In Het Kapitaal Van
Saybolt International B.V. v. Schreiber, 327 F.3d 173, 183 (2d Cir. 2003) ............................. 52
Stiles Machinery Inc. v. Lestorti, No. 05 Civ. 397 (JGM), 2007 WL 2099218, at *7 (D.Conn. Jul.
17, 2007) ................................................................................................................................... 33
United States v. Anekwu, 695 F.3d 967, 976 (9th Cir. 2012)........................................................ 18
United States v. Araujo, 79 F.3d 7, 8 (2d Cir. 1996) .................................................................... 38
United States v. Bakhtiari, 913 F.2d 1053, 1057 (2d Cir. 1990) .................................................. 53
United States v. Blake, 195 F.Supp.3d 605, 610 (S.D.N.Y. 2016) ............................................... 44
United States v. Bortnovsky, 879 F.2d 30, 34 (2d Cir. 1989) ....................................................... 44
United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) ............................................................ 37
United States v. Carlton, 534 F.3d 97, 101, 102 (2d Cir. 2008) ................................................... 41
United States v. Colasuonno, 697 F.3d 164, 181 (2d Cir. 2012) ............................................ 52, 54
United States v. Cruz, 894 F.2d 41, 44 (2d Cir. 1990)............................................................ 44, 47
United States v. Desena, 260 F.3d 150, 158 (2d Cir. 2001) ......................................................... 25
United States v. DeVillio, 983 F.2d 1185, 1193 (2d Cir. 1993) .................................................... 24
United States v. Diaz, 176 F.3d 52, 87 (2d Cir. 1999) ............................................................ 25, 27
United States v. DiMaria, 727 F.2d 265, 271 (2d Cir. 1984) ................................................. 44, 47
United States v. Edwards, 723 Fed. App’x. 48, 49-50 (2d Cir. 2018) .......................................... 37
United States v. Evangelista, 122 F.3d 112, 117 (2d Cir. 1997) .................................................. 52
United States v. Flaharty, 295 F.3d 182, 199-200 (2d Cir. 2002) ................................................ 25
United States v. Gigante, 166 F.3d 75, 82 (2d Cir. 1999) ............................................................ 24
United States v. Gonzalez, 399 F. App’x 641, 645 (2d Cir. 2010) ............................................... 45
United States v. Gotti, 457 F.Supp.2d 395, 397 (S.D.N.Y 2006) ................................................. 43
United States v. Graham, No. 14 Cr. 500 (NSR), 2015 WL 6161292, at *4 (S.D.N.Y.) (Oct. 20,

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2015) ......................................................................................................................................... 41
United States v. Greenfield, 831 F.3d 106, 118 (2d Cir. 2016) .................................................... 34
United States v. Harper, No. 05 Cr. 6068L, 2014 WL 140125, at *5 (W.D.N.Y. Jan. 20, 2009)45,
48
United States v. Jackson, 180 F.3d 55, 73 (2d Cir. 1999) ...................................................... 45, 48
United States v. James, 712 F.3d 79, 96 (2d Cir. 2013) ............................................................... 19
United States v. Jefferson, 215 F.3d 820, 824 (8th Cir. 2000)...................................................... 25
United States v. Johnson, 507 F.3d 793, 796 (2d Cir. 2007) .................................................. 45, 48
United States v. Kadir, 718 F.3d 115, 124 (2d Cir. 2013) ............................................................ 43
United States v. Kelley, 305 F. App’x 705, 708 (2d Cir. 2009) .................................................... 23
United States v. LaFlam, 369 F.3d 153, 156 (2d Cir. 2004) ......................................................... 37
United States v. Lasanta, 978 F.2d 1300, 1307 (2d Cir. 1992) .................................................... 37
United States v. Lowe, 664 F. App’x 38, 41 (2d Cir. 2016) ......................................................... 53
United States v. Lozano-Reyes, 101 F.3d 686 (2d Cir. June 1996)............................................... 25
United States v. Maldonado-Rivera, 922 F.2d 934, 962 (2d Cir. 1990) ................................ passim
United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982) ............................................................... 43
United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009) ....................................................... 40
United States v. Ortiz, 857 F.2d 900, 903 (2d Cir. 1988) ............................................................. 38
United States v. Padilla, 203 F.3d 156, 161 (2d Cir. 2000).......................................................... 24
United States v. Paredes, 176 F.Supp.2d 183, 186 (S.D.N.Y. 2001) ........................................... 43
United States v. Paul, 110 F.3d 869, 871 (2d Cir. 1997) .............................................................. 53
United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996)............................................................. 38
United States v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999) ................................................................ 31
United States v. Prevezon Holdings, Ltd., 319 F.R.D. 459, 462-63 (S.D.N.Y. 2017) .................. 32
United States v. Qualls, 613 F. App’x 25, 28 (2d Cir. 2015) ....................................................... 19
United States v. Rahme, 813 F.2d 31, 36 (2d Cir. 1987) .............................................................. 25
United States v. Ramirez, 894 F.2d 565, 568 (2d Cir. 1990) ........................................................ 38
United States v. Rastelli, 870 F.2d 822, 837 (2d Cir. 1989) ................................................... 25, 27
United States v. Rea, 958 F.2d 1206, 1225 (2d Cir. 1992) ..................................................... 43, 46
United States v. Rioux, 97 F.3d 658, 660 (2d Cir. 1996) .............................................................. 26
United States v. Rivera, 22 F.3d 430, 436 (2d Cir. 1994)....................................................... 24, 26
United States v. Rue, 819 F.2d 1488, 1494 (8th Cir. 1987) .......................................................... 34
United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir. 1991) .................................................. 31
United States v. Scully, 877 F.3d 464, 476 (2d Cir. 2017)............................................................ 53
United States v. Simmons, 923 F.2d 934, 945 (2d Cir. 1991) ....................................................... 25
United States v. Sliker, 751 F.2d 477, 487 (2d Cir. 1984) ............................................................ 41
United States v. Tarantino, 846 F.2d 1384, 1412 (D.C. Cir. 1988) .............................................. 24
United States v. Terry, 702 F.2d 299, 314 (2d Cir. 1983) ...................................................... 44, 48
United States v. Thai, 29 F.3d at 813 ............................................................................................ 25
United States v. Tin Yat Chin, 371 F.3d 31, 37 (2d Cir. 2004) ..................................................... 31
United States v. Towne, 870 F.2d 880, 886 (2d Cir. 1989) ..................................................... 37, 39
United States v. Tropeano, 252 F.3d at 661 (2d Cir, 2003) .......................................................... 31
United States v. Turner, 718 F.3d 226, 233 (3d Cir. 2013) .......................................................... 34
United States v. Ulbricht, 79 F. Supp. 3d 466, 483-84 (S.D.N.Y. 2015) ..................................... 24

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United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993) ...................................................... 37

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PRELIMINARY STATEMENT
The Government respectfully moves in limine seeking the following pretrial rulings with
respect to the upcoming trial of defendants Richard Gaffey (“Gaffey”) and Harald Joachim von
der Goltz (“von der Goltz”):
1. Foreign bank records are admissible pursuant to 18 U.S.C. § 3505.
2. Statements of the defendants’ agents and co-conspirators are admissible pursuant to Fed.
R. Evid. 801(d)(2)(D) and 801(d)(2)(E).
3. Based on witness testimony and other corroborating evidence, documents found within the
Panama Papers Database obtained by the Government from German law enforcement are
authentic documents from the files of the Panamanian law firm Mossack Fonseca.
4. Evidence of Gaffey’s work with co-conspirator Ramses Owens (“Owens”) to assist another
client of Mossack Fonseca (“Client-1”) to fraudulently repatriate assets into the United
States is admissible as direct evidence of the charged crimes, and in the alternative, is
admissible under Fed. R. Evid. 404(b).
5. The defendants should be precluded from offering their own prior exculpatory statements.
6. Von der Goltz should be precluded from asserting an advice of counsel defense because he
has failed to identify any evidence to support the necessary factual predicates for the
defense.
BACKGROUND
I.

Overview of Harald Joachim von der Goltz and Richard Gaffey’s Criminal Conduct
As alleged by the Government, this case involves the efforts of Harald Joachim von der

Goltz (“von der Goltz”), a long-time U.S. resident, to evade the requirements of U.S. tax laws to
report and pay income taxes on worldwide income, including income and capital gains that he
received in domestic and foreign bank accounts. Von der Goltz sought to evade taxes by
holding his assets through a sham entity originally called the “Revack Trust,” which in 2007 he

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resettled into a Panamanian entity called the “Revack Holdings Foundation.”1 Through Revack,
von der Goltz held ownership interests in a series of shell companies (the “Revack Entities”), and
maintained domestic and foreign bank accounts in those entities’ names (the “Revack Bank
Accounts”). Von der Goltz did so with the assistance of Richard Gaffey (“Gaffey”), a partner at
a United States Accounting Firm (the “U.S. Accounting Firm”) and Ramses Owens, an attorney
at the Panamanian law firm Mossack Fonseca and, subsequently, his own law firm (the “Owens
Firm”).2
Von der Goltz, a dual German-Guatemalan citizen who was born in Germany but raised
in Guatemala, was a U.S. resident from approximately 1984 until he renounced his legal
permanent residency in October 2017, during the criminal investigation against him. This
arrangement of holding assets through the Revack Entities and Revack Bank Accounts was
designed to hide von der Goltz’s beneficial ownership of the assets at issue from the Internal
Revenue Service (“IRS”). In furtherance of that objective, von der Goltz, Owens, and Gaffey at
times falsely claimed that von der Goltz’s elderly mother, who is not a U.S. person, was the sole
beneficial owner of the shell companies and accounts. In truth, von der Goltz himself
beneficially owned them, exercised control over them, and used the funds for his own benefit.
Furthermore, despite being obligated to do so, for the tax years from 2000 to 2016, von der Goltz
fraudulently failed to report the income and capital gains he earned through the Revack Entities,
as well as his ownership of the foreign Revack Bank Accounts. Von der Goltz’s efforts to hide

1

The Revack Trust and the Revack Holdings Foundation are referred to herein as “Revack,”
except where necessary to distinguish between these entities.
2
Although the name of Owens’s subsequent law firm changed over the relevant years, Ramses
Owens maintained status as lead or founding partner of the firm. Accordingly, for ease of
reference, Owens’s subsequent law firm is referred to herein as the “Owens Firm.”
2

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his beneficial ownership of the Revack Entities and the Revack Bank Accounts continued into
2014, when he filed materially false amended Reports of Foreign Bank and Financial Accounts
(“FBARs”) with the Government, and into 2016, when he caused his attorney to make materially
false statements in an email to the Government and repeated the substance of those false
statements during an interview with the Government.
II. Von der Goltz’s use of Mossack Fonseca in the Creation and Maintenance of the Revack
Entities
Beginning in the 1980s, von der Goltz used the services of Mossack Fonseca to create
and maintain the various Revack Entities to hold unreported assets for him in the U.S. and
abroad. Thereafter, the Revack Entities were “owned” by the Revack Trust, an overlying trust
domiciled in the British Virgin Islands, and later by the Revack Holdings Foundation, a
Panamanian entity, both of which were created by Mossack Fonseca. The relevant
documentation regarding the Revack Trust, the Revack Holdings Foundation, and the Revack
Entities, dating back to at least 1988, makes clear that von der Goltz was the primary beneficiary
of Revack throughout the relevant time period.
The Revack Trust was initially formed in or around November 1988, when Ruediger von
der Goltz, von der Goltz’s father, executed a trust agreement establishing the Revack Trust (the
“Revack Trust Agreement”). The Revack Trust Agreement, which was written with the
assistance of Mossack Fonseca, states that upon the death of Ruediger von der Goltz—which
occurred in 1990—the assets in the trust were for the use and benefit of von der Goltz and his
immediate family. The Revack Trust Agreement specifically identified von der Goltz himself
as the Trust’s primary beneficiary and Belle von der Goltz (von der Goltz's wife); Joachim
Alexander von der Goltz (“Alex von der Goltz”), his eldest son; and Carl Andreas and
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Annemarie Christine von der Goltz, his son and daughter with Belle von der Goltz, as secondary
beneficiaries. The Revack Trust Agreement makes no mention of von der Goltz’s mother, from
whom Ruediger was estranged at the time.
After his father’s death in 1990, von der Goltz, as the primary beneficiary of the Revack
Trust, used it to hold assets and make investments to generate income for himself. For instance,
von der Goltz used the Revack Trust to hold his interest in a Florida real estate development
company, Turnpike, in the 1990s. Turnpike dissolved in 1999, selling various properties it
owned at a substantial profit, and von der Goltz received a distribution of more than $3 million
dollars for his personal interest in the company. He directed this money to be distributed into
the Revack Trust rather than into his personal accounts in the United States. Throughout this
time period, von der Goltz directed the flow of funds into and out of the Revack Entities, both to
make various investments and to use the funds for his personal expenses. Gaffey also
maintained files documenting von der Goltz’s ownership interest in the Revack Entities as well
as the various transactions Gaffey executed on von der Goltz’s behalf.
Later, in January 2007, von der Goltz used the services of Mossack Fonseca and Owens,
in particular, to resettle the British Virgin Islands entity Revack Trust into a Panamanian entity
named the Revack Holdings Foundation. The assets previously held by the Revack Trust were
transferred to the Revack Holdings Foundation. Shortly thereafter, in February 2007, with the
assistance and input of Gaffey, his accountant, von der Goltz drafted and circulated a “wish list”
for the Revack Holdings Foundation, explaining his intention to provide the initial contributions
to the foundation as assets to be used for future investments that “fit into [his] philosophy as the
founder of this Foundation.” Von der Goltz also made clear that the “Foundation is for the H.J.
4

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vdG family and my direct survivors, nobody else,” and reserved the right to “change the ratio of
the benefits flowing to each of my 3 children at any time,” including based on their behavior.
In September 2007, von der Goltz executed a document entitled the “Regulations of the
Private Foundation Named Revack Holdings Foundation.” Consistent with von der Goltz’s
wish list, the Revack Holdings Foundation Regulations stated, among other things, that the
“initial contributions” of assets to the Revack Holdings Foundation were made by “the First
Beneficiary (H.J. von der Goltz);” and were to be invested as previously detailed by von der
Goltz. And consistent with both the original Revack Trust and von der Goltz’s wish list, the
Revack Holdings Foundation Regulations name Harald Joachim von der Goltz as First
Beneficiary, and Belle von der Goltz and von der Goltz’s three children as the other beneficiaries
to the Foundation. The Revack Holdings Foundation Regulations also list individuals with
close business or personal ties to von der Goltz as Committee Members, to help govern the
Foundation and manage its investments. Like the Revack Trust Agreement, neither the deed of
resettlement nor the 2007 Revack Holdings Foundation Regulations make any mention of von
der Goltz’s mother.
Other documents establish that the Revack Holdings Foundation, through its various
Revack Entities, did in fact make investments of the type described in the Revack Holdings
Foundation Regulations, totaling tens of millions of dollars. For instance, the December 31,
2012 balance sheets for the Revack Holdings Foundation and the Revack Entities—which were
maintained by Gaffey at the U.S. Accounting Firm—listed out the entities’ various investments,
including investments in private equity companies run by von der Goltz, real estate investment
companies, and a watch company named Zadora Timepieces. Between 2005 and 2008, one of
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the Revack Entities made loans to Zadora, which von der Goltz described in written
correspondence involving Gaffey as loans that von der Goltz had made with his own money.
The December 31, 2012 balance sheets further reflect that, as of that date, the assets held and
investments made by the Revack Entities had a total value of approximately $35,012,126.
III.

The Evasion of Von der Goltz’s Reporting and Tax Obligations
Since at least 2000, von der Goltz has maintained bank accounts held in the names of

Revack and various Revack Entities (the “Revack Bank Accounts”). The Revack Bank
Accounts, which include investment accounts as well as checking and savings accounts, have
been located both in the United States and abroad, at various financial institutions. At all
relevant times, von der Goltz—as the primary beneficiary of Revack, and as a beneficial owner
of the Revack Entities—was the beneficial owner of the Revack Bank Accounts. Consistent
with his status as the beneficial owner, von der Goltz used the assets in the Revack Bank
Accounts for his personal benefit. However, he did not properly report the assets to the IRS or
pay the required taxes on income and capital gains generated by the assets. Von der Goltz has
been assisted in his tax evasion primarily by Gaffey, who has served as his U.S.-based
accountant, and Ramses Owens, first while Owens was employed by Mossack Fonseca, and later
when Owens left Mossack Fonseca to start his own law practice.
Since at least in or around 1990, Richard Gaffey has been von der Goltz’s accountant,
and has prepared tax returns for von der Goltz as well as his family members. In approximately
1999, von der Goltz tasked Gaffey with the management of the assets of the various offshore
Revack Entities. Gaffey effectuated transfers of funds from the Revack Entities at von der
Goltz’s instruction, including transfers to make investments on behalf of the Foundation, as well
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as to fund von der Goltz’s various personal expenses (including, for instance, grouse hunting
trips and purchases of art). To facilitate Gaffey’s ability to execute such transactions, Gaffey
was named an officer for several of the Revack Entities, including entities named EMJO
Investments Ltd. (“EMJO”), Brecknock Corporation, Union Properties Inc., Worldwide
Investment Services and Holdings Inc., and Goldbean Inc.
A. Domestic Bank Accounts
To conceal von der Goltz’s ownership of the Revack Entities, he was not listed as a
beneficial owner on United States bank accounts. Instead, bank records illustrate that Owens
and Gaffey have served as authorized signatories on the domestic bank accounts, and have
opened those accounts in a manner that concealed von der Goltz’s beneficial ownership. For
instance, documents from Credit Suisse and JPMorgan Chase in New York and First Republic
Bank in Boston show that Gaffey and Owens assisted von der Goltz in opening Revack Bank
Accounts at these banks, including accounts nominally held by EMJO, one of the Revack
Entities. At all relevant times, von der Goltz was the sole beneficial owner of EMJO and all the
assets that EMJO held. However, in connection with the opening of these accounts, Owens
(Credit Suisse) and Gaffey (JPMorgan Chase and First Republic) signed IRS forms falsely
certifying that EMJO, a foreign shell entity, was the beneficial owner of the accounts and, thus,
that the accounts were not subject to U.S. income tax withholding. As a result, although these
accounts held investments which generated millions of dollars in capital gains, no income tax
was reported or paid on the gains that were generated.

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B. Foreign Bank Accounts
Von der Goltz, Gaffey, and Owens also opened and maintained foreign bank accounts,
including at a bank in Switzerland (the “Swiss Bank”) and a bank in Panama (the “Panamanian
Bank”). Unlike the domestic Revack Bank Accounts, the foreign Revack Bank Accounts
correctly identified von der Goltz as the beneficial owner of the Revack Entities, but did not
provide his United States address. For instance, in November 2007, von der Goltz, Gaffey, and
Owens worked together to open certain Revack Bank Accounts for von der Goltz at the Swiss
Bank, a bank with which von der Goltz had a longstanding relationship. Those accounts were
held in the names of Revack Holdings Foundation and EMJO (collectively, the “Swiss Bank
Revack Accounts”), respectively. The account opening documents identified von der Goltz as
the beneficial owner of each of these accounts, but falsely stated that he lived in Guatemala, even
though von der Goltz had been living permanently in the United States since approximately
1984. Email correspondence between Owens, Gaffey, and a Swiss Bank representative as well
as bank records from the Swiss Bank reveal that during the years that the Swiss Bank Revack
Accounts were held at the Swiss Bank, von der Goltz visited the bank, met with bank
representatives, and provided instructions to the bank, including instructions concerning
transactions in the accounts. Throughout the correspondence and bank documents, the
participants repeatedly referred to von der Goltz as the beneficial owner of the Swiss Bank
Revack Accounts, as he was.
In light of the false documentation of von der Goltz as a non-U.S. person with the Swiss
Bank, von der Goltz was able to receive assets held in the Swiss Bank Revack Accounts without
disclosing it as taxable income to the IRS, and then use those assets for his own personal benefit.
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For instance, on June 14, 2013, von der Goltz received, into his personal bank account at First
Republic Bank in Boston, a transfer of approximately $430,000 from the Swiss Bank EMJO
Account. Email correspondence and bank records from this time reveal that at the time von der
Goltz received this transfer of money from the Swiss Bank EMJO Account, he needed the money
to pay off an outstanding home equity line of credit (“HELOC”) at First Republic Bank, and that
the proceeds of the transfer from the Swiss Bank EMJO Account were used for “getting [von der
Goltz’s] 3rd HELOC current.” Bank records from the Swiss Bank show that the $430,000 that
von der Goltz received was the result of the liquidation of shares in precious metals. However,
because the account was not identified as a U.S. account, no taxes were withheld from the capital
gains generated from the sale. Von der Goltz did not in fact pay any capital gains taxes on the
sale, because with Gaffey’s assistance as the return preparer, he filed a Form 1040 for the 2013
tax year that falsely failed to report this money to the IRS.
Similarly, in the early 2000s, Gaffey and Owens assisted von der Goltz in opening
foreign bank accounts in the names of various Revack Entities at the Panamanian Bank (the
“Panamanian Bank Revack Accounts”). As with the Swiss Bank Revack Accounts, bank
records for the Panamanian Bank Revack Accounts correctly identify von der Goltz as the
beneficial owner, but incorrectly state that he is a resident of Guatemala. Emails, faxes, and
bank records show that from at least 2003 to 2016, Gaffey instructed various individuals to wire
funds from various Revack Bank Accounts for von der Goltz’s benefit. In some cases, Gaffey
used the Revack Bank Accounts to pay von der Goltz’s expenses for items such as hunting trips
and airplane hangar rentals. In other cases, Gaffey simply transferred the money directly to von
der Goltz’s personal bank accounts. For instance, between 2010 and 2016, von der Goltz
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received over $1.7 million into his personal bank accounts from foreign and domestic accounts
nominally held by EMJO.
On von der Goltz’s Forms 1040 for the tax years 2000 through and including 2016, von
der Goltz falsely and fraudulently failed to report the income and capital gains generated in
connection with the domestic and foreign Revack Bank Accounts. He also falsely and
fraudulently failed to report his interest in, or signature or other authority over, the foreign
Revack Bank Accounts.
IV. Von der Goltz and Gaffey’s Efforts to Hide Von der Goltz’s Ownership of the Revack
Entities by Using the Mother’s Identity
Over time, and as regulatory changes led to greater financial transparency into overseas
financial institutions, von der Goltz, Gaffey, and Owens escalated their efforts to hide von der
Goltz’s status as the true beneficial owner of the Revack Entities. One method they used was to
invent and perpetuate the fiction that von der Goltz’s elderly mother was the true beneficial
owner of the Revack Entities.
In one of the earliest examples of this fiction, in 2007, Gaffey worked with Owens and
Dirk Brauer, an Asset Manager at Mossfon Asset Management and a charged defendant, to open
a brokerage account in the name of EMJO to sell shares of a company called DG FastChannel
that was publicly traded on a U.S. stock exchange. Prior to the opening of the new brokerage
account, several versions of Mossack Fonseca due diligence memoranda drafted by Owens and
Brauer identified von der Goltz as the beneficial owner of the Revack Entities. For instance, in
February 2007, Ramses Owens drafted an internal Mossack Fonseca memo in Spanish entitled
“Revack Holdings Foundation Harald Joachim von der Goltz Due Diligence Memorandum and
Letter of Wishes,” which memorialized meetings held by von der Goltz, Gaffey, and Owens at
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Mossack Fonseca’s offices in Panama at the end of January 2007. This memo noted that von
der Goltz’s father had bequeathed almost 100% of his assets to von der Goltz, and explained that
von der Goltz was the beneficial owner of the Revack Entities, including EMJO. It also
emphasized the need, for “legal purposes,” to use his mother’s Guatemalan address for von der
Goltz, rather than his actual United States address. On March 6, 2007, Brauer also authored a
due diligence memo in Spanish, which largely mirrored the longer memo authored by Owens.
Brauer’s memo identified von der Goltz as the beneficial owner of Revack and the Revack
Entities, including EMJO, and stated that von der Goltz’s “wealth outside of the USA is under
Revack Holdings.”
On April 27, 2007, Gaffey wrote an email to Owens informing him that one of “EMJO’s
portfolio investments, FastChannel, has merged into a public company and we are going to
exchange the shares for publicly traded shares,” and asked Owens to open a brokerage account
for EMJO. Owens began preparing documentation to open an account with Financial Pacific, a
Panamanian brokerage firm. Among other documents, Owens created a Resolution of the
Revack Holdings Foundation’s Council, dated May 29, 2007, certifying that von der Goltz was
the beneficial owner of the Foundation, and attaching a copy of his Guatemalan passport. In
addition, Brauer drafted a due diligence memorandum in Spanish, dated May 31, 2007, which
was designed to be submitted with the brokerage account opening documents to Financial
Pacific. Brauer’s May 31, 2007 memo was similar to his prior March memo, listing von der
Goltz’s physical address as his mother’s address in Guatemala, and noting that von der Goltz was
the beneficial owner of Revack and EMJO, and that EMJO owned the shares in DG FastChannel.
In an email to Gaffey dated June 5, 2007, Owens wrote of the difficulties Mossack
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Fonseca was having in opening the brokerage account for EMJO. Owens began the email by
stating that “I know it is not good to comment this by email,” but he had been unable to reach
Gaffey via phone and wanted Gaffey to “see this message the soonest.” Owens then informed
Gaffey that several U.S. companies had requested the “real and final beneficial owner” of EMJO,
“which name, as you know, we cannot disclose.” In this email, Owens used the codename “Mr.
T” to refer to von der Goltz, a reference to von der Goltz’s lifelong nickname of “Tica.” Owens
explained to Gaffey that von der Goltz’s passport should not be provided, “as we cannot make a
link between Mr. T and EMJO inside the USA,” and suggested providing, instead, the passport
of von der Goltz’s mother.
Later that day, Owens and Brauer began to prepare false documents to submit in relation
to the Financial Pacific account. These false documents included a “Resolution of the Directors
of EMJO Investments Limited,” dated June 5, 2007 and signed by Owens, falsely stating that
von der Goltz’s mother was the beneficial owner of EMJO, which was directly contrary to the
otherwise nearly identical resolution that Owens had prepared on May 29. The new documents
also included a new due diligence memo written by Brauer, this time in English, dated June 11,
2007, which also claimed—in direct contradiction to the previous memos—that von der Goltz’s
mother was the beneficial owner of EMJO. Mossack Fonseca submitted this falsified
paperwork to open the brokerage account. A few days later, Brauer wrote to Gaffey and Owens
that he had managed to successfully open the account, but explained that he had to
“accommodate the due diligence a bit (please recall your communication with Ramses)”—i.e.,
by drafting false documentation to support the fiction that von der Goltz’s mother was EMJO’s
beneficial owner—in order to successfully open the account.
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After 2007, Gaffey and von der Goltz began using von der Goltz’s mother’s name for
various purposes, especially when communicating with financial institutions in the United States
or conducting transactions that implicated the United States financial system. For instance,
between 2013 and 2016 Gaffey submitted bank account opening applications to Credit Suisse
and JP Morgan in New York for EMJO stating that the mother was the beneficial owner of
EMJO and using her name, address, date of birth, and other personal identifying information.
These statements were contrary to Gaffey’s internal files, where he maintained documentation
showing that von der Goltz was the 100% beneficial owner of EMJO.
V. Von der Goltz’s False Reports of Foreign Bank and Financial Accounts in 2014
On March 4, 2014, the Swiss Bank informed von der Goltz that due to new legal
requirements, the bank had undertaken a review of its account relationships and had identified
von der Goltz’s accounts as “U.S. related” because he was the beneficial owner of the accounts.
The Swiss Bank further informed von der Goltz that the bank might be required to report his
accounts to the United States government, and suggested that he enter the IRS’s Offshore
Voluntary Disclosure Program (“OVDP”), which allowed taxpayers with undeclared assets to
report those assets and pay a penalty in exchange for protection from criminal liability.
After receiving this letter, von der Goltz retained a United States law firm (the “U.S. Law
Firm”) to assist him with entering into the OVDP. However, in September 2014, instead of
entering into the OVDP, von der Goltz filed amended Reports of Foreign Bank and Financial
Accounts (“FBARs”) for the years 2009 to 2013 (the “Amended FBARs”). The Amended
FBARs were prepared by Gaffey, together with the U.S. Law Firm.
These Amended FBARs filed by von der Goltz were materially false. They stated that
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von der Goltz had signature authority, but no financial interest in, the Swiss Bank Accounts.
However, as von der Goltz and Gaffey well knew, von der Goltz was the beneficial owner of
those accounts, and he did not actually have signatory authority, by design. Accordingly, the
Amended FBARs contained false statements that directly contradicted the contents of the
account records from the Swiss Bank. The Amended FBARs also failed to include other
Revack Bank Accounts in which von der Goltz held a financial interest, including the undeclared
accounts at the Panamanian Bank.
VI. The “Panama Papers” and von der Goltz’s False Statements to the Government
The “Panama Papers” news story broke on April 3, 2016. The Panama Papers involved
the publication of a large volume of documents taken from the internal files of Mossack Fonseca.
It was also widely reported that the Government was investigating Mossack Fonseca and its
employees and clients, focusing on U.S. persons who used Mossack Fonseca for purposes of
hiding their assets offshore. In May of 2016, after the publication of the Panama Papers, the
U.S. Law Firm continued to represent von der Goltz. A partner at the U.S. Law Firm (the “U.S.
Law Firm Representative”) reached out to the IRS and this Office on von der Goltz’s behalf.
The U.S. Law Firm Representative offered to make von der Goltz—who by then had appeared in
news reports regarding the Panama Papers—available for an interview to “correct” the
statements that had been made about him in the press, as well as to provide information
regarding Mossack Fonseca.
On May 11, 2016, shortly after contacting the IRS, the U.S. Law Firm Representative
followed up with an email on von der Goltz’s behalf to an Assistant United States Attorney in
the Southern District of New York. This email contained multiple false statements, including
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that von der Goltz’s mother was the beneficial owner of EMJO and the other Revack Entities,
that von der Goltz was not the beneficial owner of EMJO, that he had “signature only” authority
over the Swiss Bank EMJO Account, and that he had not used EMJO “to hide funds from the
U.S. or other tax authorities.” On May 19, 2016, von der Goltz and the U.S. Law Firm
Representative met with representatives of the Department of Justice (“DOJ”), including an
Assistant United States Attorney and multiple IRS agents. During that meeting, von der Goltz
repeated the false statements that the U.S. Law Firm Representative had made in the U.S. Law
Firm Representative’s email, stating that von der Goltz’s mother was the beneficial owner of the
Revack Entities and that von der Goltz had signature only authority over the Swiss Bank EMJO
Account.
VII. The Investigation and Gaffey and von der Goltz’s Failure to Comply with Subpoenas
Following von der Goltz’s interview with the DOJ, the Government issued subpoenas to
Gaffey and von der Goltz in the course of its ongoing investigation of Mossack Fonseca and its
clients. The Government served Gaffey with a subpoena on October 13, 2016, and reissued the
subpoena, at the request of Gaffey’s counsel, to the U.S. Accounting Firm on November 8, 2016.
The Government served a subpoena on von der Goltz on August 1, 2016, and served another
subpoena on von der Goltz for the Swiss Bank records on October 30, 2017. Gaffey and von
der Goltz failed to comply with these subpoenas.
During interviews conducted in July 2017 of two other partners of the U.S. Accounting
Firm, the Government learned that Gaffey had not informed his partners of the issuance of the
2016 subpoenas or made any good-faith effort to collect all responsive documents from the U.S.
Accounting Firm’s files. On August 9, 2017, law enforcement agents executed a search warrant
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at the premises of the U.S. Accounting Firm. The Affidavit submitted in support of the search
warrant relied in part on Gaffey’s incomplete and deficient productions of documents in response
to the subpoenas issued by the Government. Additionally, Gaffey’s concealment of the
existence of the November 2016 subpoena from his partners established that Gaffey appeared to
be deliberately withholding responsive and inculpatory evidence. The records recovered during
that search of the U.S. Accounting Firm, almost none of which had been produced by Gaffey in
the ten months since the subpoena had issued for these records, proved to be highly
incriminating.
On October 30, 2017, a subpoena was issued to von der Goltz requesting information
concerning his Swiss Bank account records. Von der Goltz refused to comply with the
subpoena. The Government moved to compel, and on April 9, 2018, Judge Pauley ordered von
der Goltz to provide the responsive Swiss Bank records. Nevertheless, despite the Court’s
order, von der Goltz did not produce the Swiss Bank records for more than six additional
months. On October 15, 2018, the Court granted the Government’s motion to hold von der
Goltz in contempt for his failure to comply with the Court’s order, and set a fine of $1,000 per
day to begin if von der Goltz did not comply by November 15, 2018. Von der Goltz finally
complied with the Court’s order and produced the records on December 27, 2018.
On September 27, 2018, a grand jury returned an Indictment against von der Goltz and
Gaffey, along with Owens and Brauer. The Indictment was unsealed on December 4, 2018.
Trial is scheduled for January 13, 2020.

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ARGUMENT
I. Foreign Financial Records Are Admissible Pursuant to 18 U.S.C. § 3505
A. Background
At trial, the Government intends to offer records from the Panamanian Bank obtained
from the Panamanian government pursuant to a Tax Information Exchange Agreement
(“TIEA”). The Government has produced the relevant records to the defendants, along with a
certification from the custodian of these records. Along with these discovery materials, the
Government provided notice to the defendants of its intent to offer the Panamanian Bank records
pursuant to 18 U.S.C. § 3505. Among the Panamanian Bank records the Government intends to
offer are the original account-opening documentation from the Panamanian Bank, which at the
time was maintained in Panama and not disclosed in the United States, and which identify von
der Goltz as the beneficial owner of the assets in these accounts. Owens, however, served as a
director of the Revack Entities that nominally held the accounts, held signature authority over the
accounts, and directed transfers to and from the accounts on von der Goltz’s behalf, including to
and from places within the United States. Although the accounts at the Panamanian Bank held
millions of dollars in assets, von der Goltz never reported the existence of the accounts, nor the
interest generated in the accounts, to the IRS. Nor did he ever file FBARs with respect to the
accounts.
B. Applicable Law
Section 3505(a)(1) of Title 18 exempts foreign business records from the prohibition
against admission of hearsay evidence if a foreign certification attests that: (A) the record was
made at or near the time of the occurrence of the matters set forth by a person with knowledge of
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the matters; (B) the “record was kept in the course of regularly conducted business activity”; (C)
the business made such a record as a regular practice; and (D) the record is the original or a
duplicate of the original. Section 3505(a)(2) provides that the foreign certification also
authenticates the record. The test here is essentially the same as the test governing the
admission of business records under Federal Rules of Evidence 803(6)(A) and 902(11). See
United States v. Anekwu, 695 F.3d 967, 976 (9th Cir. 2012) .
The Government may rely on the procedures set forth in Section 3505 if it provides
written notice of its intention to the defense at the arraignment or as soon after as practicable.
18 U.S.C. § 3505(b). The defense must make a motion if it opposes the admission of the
foreign business records; failing to do so will constitute a waiver of objection to the introduction
of the record. Id. The court must rule on the admissibility of records offered under Section
3505 before trial. Id.
C. Discussion
The Court should admit the foreign financial records because they meet all the
requirements of Section 3505 and their admission does not violate the Confrontation Clause. In
addition, these records are relevant under Rule 401.
The admission of these records based on the foreign certification without testimony from
a live witness satisfies the Confrontation Clause. Pursuant to the Confrontation Clause, “an outof-court statement [that] is testimonial in nature … may not be introduced against the accused at
trial unless the witness who made the statement is unavailable and the accused has had a prior
opportunity to confront that witness.” Bullcoming v. New Mexico, 564 U.S. 647, 657 (2011);
Crawford v. Washington, 541 U.S. 36, 59 (2004). The Second Circuit has explained that an out18

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of-court statement is testimonial only “when it is made with the primary purpose of creating a
record for use at a later criminal trial.” United States v. James, 712 F.3d 79, 96 (2d Cir. 2013).
Business records, like the bank records here, are not testimonial because they were “created for
the administration of an entity’s affairs and not for the purpose of establishing or proving some
fact at trial.” Id. at 90 (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324, (2009)).
Therefore, the introduction of the foreign business records themselves at trial does not violate the
defendants’ rights under the Confrontation Clause.
The use of the foreign certification to authenticate and admit the records pre-trial also
does not violate the Confrontation Clause. The Confrontation Clause applies to an out-of-court
testimonial statement that the Government introduces against the defendant at trial. See United
States v. Qualls, 613 F. App’x 25, 28 (2d Cir. 2015). However, the Government is not seeking
to introduce the foreign certifications at trial. The Second Circuit has stated that this Court can
rely on the foreign certifications to admit the foreign bank records pursuant to Section 3505 pretrial as long as the certifications are not offered into evidence, described to the jury, or viewed by
the jury. See id. at 28-29 (holding that district court’s review of foreign certification pre-trial to
determine whether to admit foreign business records under Section 3505 did not violate
Confrontation Clause because certification was not offered into evidence, nor described to or
viewed by the jury).
The Court should admit the foreign financial records without live testimony pursuant to
18 U.S.C. § 3505 because: (1) the business records and the foreign certifications meet the
requirements set forth in the statute, and (2) the admission of the foreign business records
without a live witness does not violate the Confrontation Clause since the business records
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themselves are not testimonial and the foreign certification can be examined by the Court pretrial and will not be introduced into evidence, described or viewed by the jury.
Moreover, the Panamanian Bank records are highly probative of the defendants’ guilt.
The Panamanian Bank records identify von der Goltz as the beneficial owner of multiple bank
accounts opened in the name of the Revack Entities, which held undeclared funds that Gaffey
and von der Goltz used for von der Goltz’s personal benefit. Among other things, during the
charged time period, Gaffey regularly helped von der Goltz transfer those undeclared offshore
funds into the United States to make various investments on behalf of von der Goltz, and to pay
for personal expenses for von der Goltz such as his personal bills, his legal bills, a large number
of hunting trips, and tuition payments for his children and grandchildren. The conduct
involving the Panamanian Bank accounts will therefore constitute key evidence at trial.
These foreign financial records are therefore relevant and admissible, and thus should be
ruled as such prior to trial.
II. Statements of the Defendants’ Agents and Co-Conspirators Are Admissible
A. Background
The Government expects to elicit and offer certain statements made by agents and
employees of the defendants while acting within the scope of that agency relationship, which are
admissible under Federal Rule of Evidence 801(d)(2)(D), and also statements made by coconspirators in furtherance of the conspiracy, which are admissible under Federal Rule of
Evidence 801(d)(2)(E).
As the Government will establish at trial through witness testimony and documents,
during the relevant time period, von der Goltz directed various investments to be made using the
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assets of the Revack Entities. Some of these investments were made through Boston Capital
Ventures (“BCV”), a venture capital firm in which von der Goltz was a general partner and
where he was involved in managing the investments directly and through employees of BCV
who generally worked at his direction. Other investments were made through other venture
capital and private equity funds which von der Goltz helped to found or manage, which
communicated with and took instructions from von der Goltz and Gaffey regarding the
investments. Still others were direct investments that von der Goltz made, including into
companies he ran or founded, or for which he served as an officer or director, such as Rainforest
Adventures and Rainforest Tram. Some investments resulted in the Revack Entities holding
shares in publicly traded companies, and von der Goltz and Gaffey directed the creation of
brokerage accounts at various banks to hold those shares and occasionally directed sales or
transfers of the shares. Additionally, while Gaffey was the employee of the U.S. Accounting
Firm with primary responsibility for von der Goltz and the Revack Entities, he also had other
employees at the U.S. Accounting Firm who did work relating to von der Goltz and the Revack
Entities.
The employees of BCV, the venture capital and private equity funds, the companies
where direct investments were made, and the banks where the brokerage accounts were opened,
as well as the employees of the U.S. Accounting Firm, were all working as agents of the
defendants with respect to the management of the Revack Entities and their investments. In the
course of that work, they made various statements demonstrating that they were taking directions
from Gaffey and von der Goltz, and that the entities were being managed on behalf of von der
Goltz. This was especially the case earlier in the relevant time period, before the defendants had
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developed the fiction that von der Goltz’s mother was the beneficial owner of the Revack
Entities. Moreover, von der Goltz, who rarely used email personally, frequently would use such
employees as his own personal assistants or secretaries, directing them to send or receive email
and fax correspondence. For instance, after the Panama Papers story broke in the press, von der
Goltz directed employees of Rainforest Adventures to send and receive correspondence
regarding how to respond to media reports about his overseas holdings. The Government
intends to offer these statements to show that von der Goltz and Gaffey exercised control over
the Revack Entities and their assets and investments.
In addition, von der Goltz and Gaffey conspired with a number of other people. As
relevant here, the primary co-conspirators were Ramses Owens, Dirk Brauer, and other
employees and agents of Mossack Fonseca and the Owens Firm, who actively worked with von
der Goltz and Gaffey to conceal von der Goltz’s ownership by, among other things, maintaining
internal records showing that von der Goltz was the beneficial owner while creating false
documents obscuring this fact to share with third parties. The Government intends to offer both
internal Mossack Fonseca and Owens Firm correspondence and documents showing von der
Goltz’s ownership, and outward-facing correspondence and documents obscuring that fact, to
show the nature and operation of the conspiracy to attempt to evade taxes and the money
laundering conspiracy charged in the Indictment.
B. Applicable Law
Rule 801(d)(2)(D) of the Federal Rules of Evidence provides that “[a] statement is not
hearsay if … the statement is offered against an opposing party and was made by the party’s
agent or employee on a matter within the scope of that relationship and while it existed.” To
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admit a statement under this rule, the court must find “(1) the existence of the agency
relationship, (2) that the statement was made during the course of the relationship, and (3) that it
relates to a matter within the scope of the agency.” Feis v. United States, 394 F. App’x 797, 799
(2d Cir. 2010) (quoting Pappas v. Middle Earth Condo. Ass’n, 963 F.2d 534, 537 (2d Cir.1992)).
As the Second Circuit has explained, “admissibility under this rule should be granted freely,” and
there is a “liberal” standard for admissibility rooted in the understanding that agents and
employees are usually the people “best informed about certain acts committed in the course of
[their] employment.” Pappas, 963 F.2d at 537 . Applying this rule, courts have found a wide
range of agent and employee statements admissible in circumstances analogous to those present
here. See, e.g., United States v. Kelley, 305 F. App’x 705, 708 (2d Cir. 2009) (forms signed by
one business partner in the course of business admissible against another partner); In re Reserve
Fund Sec. Litig., 09 Civ. 4346 (PGG), 2012 WL 12354233 at *7-*8 (statements made by an
employee of an entity are admissible when offered against the person who controls the entity).
Rule 801(d)(2)(E) of the Federal Rules of Evidence provides in relevant part that “[a]
statement is not hearsay if … the statement is offered against an opposing party and was made by
the party’s co-conspirator during and in furtherance of the conspiracy.” To admit a statement
under this rule, a district court must find two facts by a preponderance of the evidence: first, that
a conspiracy that included the defendant and the declarant existed; and, second, that the
statement was made during the course and in furtherance of that conspiracy. Bourjaily v. United
States, 483 U.S. 171, 175 (1987); United States v. Gigante, 166 F.3d 75, 82 (2d Cir. 1999).
Under this exception to the hearsay rule, “[t]he conspiracy between the declarant and the
defendant need not be identical to any conspiracy that is specifically charged in the indictment”
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or that is the subject of the relevant trial. Gigante, 166 F.3d at 82.

“In fact, the Second Circuit

has held that it is not even necessary that the Government charge a conspiracy to take advantage
of Rule 801(d)(2)(E).” United States v. Ulbricht, 79 F. Supp. 3d 466, 483-84 (S.D.N.Y. 2015)
(citing United States v. DeVillio, 983 F.2d 1185, 1193 (2d Cir. 1993)); see also United States v.
Maldonado-Rivera, 922 F.2d 934, 962 (2d Cir. 1990) (“Though … Fed. R. Evid. 801(d)(2)(E)
requires proof that both the declarant and the party against whom a declaration is offered be
members of the same conspiracy, it does not require that the conspiracy be one charged in the
indictment”).
When determining whether the predicate conspiracy has been established, the district
court is not bound by the rules of evidence, see Fed. R. Evid. 104(a), and “the district court may
consider the hearsay statement itself” as evidence of “the existence of a conspiracy.” United
States v. Padilla, 203 F.3d 156, 161 (2d Cir. 2000) (citing Bourjaily v. United States, 483 U.S.
171, 181 (1987)).
To be in furtherance of a conspiracy, a statement “must in some way have been designed
to promote or facilitate achievement of a goal of the ongoing conspiracy.” United States v.
Rivera, 22 F.3d 430, 436 (2d Cir. 1994).

Under this standard, a co-conspirator statement is

admissible if it “reasonably [can] be interpreted as encouraging a co-conspirator or other person
to advance the conspiracy, or as enhancing a co-conspirator or other person’s usefulness to the
conspiracy.” United States v. Tarantino, 846 F.2d 1384, 1412 (D.C. Cir. 1988). Thus,
statements are in furtherance of the conspiracy if they: (1) inform or provide an update as to the
status or progress of the conspiracy, see United States v. Desena, 260 F.3d 150, 158 (2d Cir.
2001); (2) “prompt the listener . . . to respond in a way that promotes or facilitates the carrying
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out of a criminal activity,” Maldonado-Rivera, 922 F.2d at 958; (3) “seek to induce a coconspirator’s assistance,” Desena, 260 F.3d at 158 (internal quotations omitted); (4) “provide
reassurance,” id.; (5) “serve to foster trust and cohesiveness,” id.; United States v. Simmons, 923
F.2d 934, 945 (2d Cir. 1991); (6) “facilitate and protect” the conspiratorial activities, United
States v. Diaz, 176 F.3d 52, 87 (2d Cir. 1999); or (7) inform a co-conspirator of “the identity and
activities of his coconspirators,” United States v. Rastelli, 870 F.2d 822, 837 (2d Cir. 1989);
United States v. Rahme, 813 F.2d 31, 36 (2d Cir. 1987).

A narrative description of a past event

is admissible as long as it serves “some current purpose in the conspiracy.” United States v.
Thai, 29 F.3d at 813; see also Desena, 260 F.3d at 159; Maldonado-Rivera, 922 F.2d at 958;
United States v. Flaharty, 295 F.3d 182, 199-200 (2d Cir. 2002).
Indeed, “[s]tatements that describe past events are in furtherance of the conspiracy if they
are made . . . simply to keep coconspirators abreast of current developments and problems facing
the group.” United States v. Jefferson, 215 F.3d 820, 824 (8th Cir. 2000) (internal quotations
omitted). For example, in United States v. Lozano-Reyes, the Second Circuit affirmed the trial
court’s admission of co-conspirator statements relating to past events because the statements
served a current purpose in the conspiracy, namely, “to engender trust, to increase [the witness’s]
familiarity with the conspiracy’s modus operandi, and to outline future conspiratorial actions and
the anticipated profits.” United States v. Lozano-Reyes, 101 F.3d 686 (2d Cir. June 1996).
C. Discussion
First, the statements of various agents and employees of von der Goltz and Gaffey,
reflecting the directions they were taking from von der Goltz and Gaffey and the information
conveyed to them by von der Goltz and Gaffey, are admissible as statements made within the
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scope of the declarants’ agency relationship with the defendants.3 The individuals who
executed transactions and managed the investments of the Revack Entities were chosen by the
defendants, or worked for organizations that were chosen by the defendants to manage these
affairs, and they received their instructions from the defendants. See United States v. Rioux, 97
F.3d 658, 660 (2d Cir. 1996) (statements of declarants admissible against defendant where they
were hired by defendant, served at his pleasure, and received instruction from him).
Additionally, the statements of Ramses Owens, Dirk Brauer, and other employees of
Mossack Fonseca and the Owens Firm with respect to the management of the Revack Entities
are admissible at trial as co-conspirator statements under Rule 801(d)(2)(E). These statements
were, among other things, “designed to promote or facilitate achievement of the goals of the
conspiracy” and thus should be admitted under Rule 801(d)(2)(E). See Rivera, 22 F.3d at 436.
As alleged in the Indictment, the purpose for which von der Goltz held a large percentage
of his assets in a series of shell companies created by Mossack Fonseca was to conceal his
ownership of those assets and thereby evade taxes that were due and owing to the United States.
Owens and other Mossack Fonseca and Owens Firm employees facilitated this scheme by
managing the Revack Entities and the Revack Bank Accounts on behalf of von der Goltz,
transferring funds into the United States for the benefit of von der Goltz, and creating corporate
records designed to conceal the true beneficial ownership of von der Goltz’s assets. Mossack
Fonseca documents demonstrate how the employees of the firm conspired with von der Goltz to
establish an elaborate offshore structure to conceal von der Goltz’s ownership of assets and
income. For instance, in an email to Mossack Fonseca’s founding partners Jurgen Mossack and

3

Many of these statements are also admissible as business records pursuant to Rule 803(6).
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Ramon Fonseca in 2009, Ramses Owens stated that von der Goltz had “various offshore
structures” to hold his assets, but that “the Ultimate Beneficial Owner declared in remittances to
USA is [his mother].” Owens further stated that “Don Harald Joachim has confidence in the
schemes and feels fully covered and protected.”
Throughout the relevant time period, Mossack Fonseca and Owens Firm employees
created corporate documents and executed transactions to enable von der Goltz to manage and
benefit from his assets without disclosing his beneficial ownership to the United States
government or United States financial institutions. Such communications are core examples of
statements that are intended to “facilitate and protect” conspiratorial activities, see Diaz, 176
F.3d at 87, and to enable the conspirators to stay informed about the “activities of [their] coconspirators,” see Rastelli, 870 F.2d at 837. Accordingly, such statements are admissible under
Rule 801(d)(2)(E).
III. Witness Testimony and Corroborating Evidence Authenticate the Portions of the
Panama Papers Database Obtained by the Government from a German Law Enforcement
Agency
A. Background
On April 3, 2016, the International Consortium of Investigative Journalists (ICIJ)
reported that it possessed approximately 11.5 million documents belonging to Mossack Fonseca,
which reportedly contain information concerning more than 200,000 offshore accounts created
by, or associated with, the firm. There has been extensive media coverage of these documents,
colloquially referred to as the “Panama Papers,” including the publication of some documents
from the Panama Papers in various media outlets such as the New York Times. However, only a
small subset of the Panama Papers have been publicly released.
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In the course of its investigation, the Government learned that the German
Bundeskriminalamt (BKA), the Federal Criminal Police Office of Germany, had obtained a
complete copy of the Panama Papers (the “Panama Papers Database”). The Government issued
a request pursuant to the United States’ Mutual Legal Assistance Treaty (MLAT) with Germany
for documents in the Panama Papers Database relating to von der Goltz and certain other
persons, which were produced to the Government by German law enforcement.
At trial, the Government intends to introduce various corporate documents, emails,
invoices, and other records obtained from the Panama Papers Database. This evidence shows
that von der Goltz was a longtime client of Mossack Fonseca, that he owned and controlled the
Revack Entities and the Revack Bank Accounts, and that he and his co-conspirator Gaffey
directed Mossack Fonseca to manage those assets and used the income generated by them for his
benefit. The evidence further includes Mossack Fonseca memos and emails stating that von der
Goltz is a United States person, and that his beneficial ownership of the Revack Entities should
not be referenced in communications with United States financial institutions to ensure that these
assets and transactions remained concealed from U.S. tax authorities.
The Government intends to introduce the testimony of a German BKA agent who will
describe the Panama Papers Database. This testimony will identify various technical aspects of
the database that indicate that it is taken from the files of Mossack Fonseca and will explain the
manner in which Mossack Fonseca maintained its files—organized by client and identified by
client numbers—and the way this is reflected in the structure of the database. The BKA agent
will also authenticate particular trial exhibits as having been taken from the Panama Papers.
The witness will further testify as to the use that has been made of the Panama Papers Database
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by German law enforcement, and that the information in the Panama Papers Database has been
corroborated in multiple ways. For instance, German law enforcement agents have used
documents in the Panama Papers Database to obtain search warrants in Germany and have
recovered documents that are duplicates of the documents in the Panama Papers Database. In
addition, multiple witnesses have stated in German criminal prosecutions that the documents in
the Panama Papers Database are authentic, and the BKA has further confirmed the accuracy of
the Panama Papers Database by identifying individuals who have been the subject of media
coverage of the Panama Papers and who have subsequently acknowledged that the documents
are authentic.
In addition to the German BKA witness, the Government will introduce documentary
evidence that authenticates the reliability of the Panama Papers Database. The Government
obtained a large number of documents through search warrants and subpoenas in the course of its
investigation that are exact duplicates of the documents in the Panama Papers. For instance, as
mentioned above, the Government executed a search warrant at the offices of the U.S.
Accounting Firm, and recovered files pertaining to von der Goltz and the Revack Entities. The
materials recovered included dozens of emails, corporate documents, faxes, bank records, and
other documents—including the founding documents for the Revack Trust and the Revack
Holdings Foundation, and the regulations for the Revack Holdings Foundation—that are
identical to documents obtained from Mossack Fonseca and found in the Panama Papers. The
Government will also introduce bank records, corporate records, and business records from
various sources, which refer to investments, entities, and transactions that correspond to and
corroborate information contained within the Panama Papers Database.
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The Government will further authenticate the Panama Papers Database through witness
testimony and through statements of Mossack Fonseca employees and other co-conspirators
acknowledging that the documents are authentic. First, the Government will introduce the
testimony of Client-1, a former client of Mossack Fonseca whose records are included in the
Panama Papers Database. Client-1 will testify that Client-1’s documents found in the Panama
Papers are authentic, and that the Panama Papers appeared to contain accurate records of
Mossack Fonseca based on Client-1’s many years of dealing with the firm. Second, the
Government will introduce emails sent after the Panama Papers story broke, in which Ramses
Owens and Mossack Fonseca employees acknowledge the authenticity of the Panama Papers and
circulate documents from Mossack Fonseca’s files that are identical to documents found within
the Panama Papers Database. Based on this authenticating evidence, the Government will offer
into evidence additional documents from the Panama Papers Database beyond those for which
duplicates may be found elsewhere or for which a witness will directly testify as to the
authenticity.
B. Applicable Law
Rule 901(a) of the Federal Rules of Evidence “requires the proponent of any evidence to
submit ‘evidence sufficient to support a finding that the matter in question is what its proponent
claims.’ This requirement is satisfied ‘if sufficient proof has been introduced so that a
reasonable juror could find in favor of authenticity or identification.’” United States v.
Ruggiero, 928 F.2d 1289, 1303 (2d Cir. 1991) (quoting 5 J. Weinstein & M. Berger, Weinstein’s
Evidence ¶ 901(a) [01], at 901–17 (1990)). Authentication, a relatively minor threshold hurdle,
need not be established by the testimony of a witness with knowledge. See, e.g., Elsevier B.V. v.
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UnitedHealth Group, Inc., 784 F. Supp. 2d 286, 292 (S.D.N.Y. 2011) (“‘Rule 901 does not erect
a particularly high hurdle, and that hurdle may be cleared by circumstantial evidence’” (quoting
United States v. Tin Yat Chin, 371 F.3d 31, 37 (2d Cir. 2004) (internal quotation marks omitted)).
The Government is not required to “rule out all possibilities inconsistent with authenticity, or to
prove beyond any doubt that the evidence is what it purports to be.” United States v. Tropeano,
252 F.3d at 661 (2d Cir, 2003) (quoting United States v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999)).
Indeed, even though Rule 901 is clear that its enumeration of means of authentication consists of
“examples only—not a complete list,” the rule explicitly provides for two circumstantial means
of authentication relevant here. Rule 901(b)(3) allows authentication by “[a] comparison with
an authenticated specimen by an expert witness or the trier of fact.” Rule 901(b)(4) more
broadly allows for authentication by “[t]he appearance, contents, substance, internal patterns, or
other distinctive characteristics of the item, taken together with all the circumstances.”
C. Discussion
Here, the documents from the Panama Papers Database have numerous distinctive
characteristics that will allow the jury to authenticate them. As an initial matter, the German
law enforcement witness will testify that these documents are taken from an intact database of
documents, organized in files by client number, that bear multiple reliable indicia of being the
authentic files of the Panamanian law firm Mossack Fonseca. Client-1 will also attest to the
authenticity of Client-1’s documents found within the Panama Papers Database, further
demonstrating that the documents in the Database on the whole are authentic. In addition, the
documents within the Panama Papers Database have the appearance of what they purport to be:
corporate organization documents, invoices, memos, emails, and the like. They contain a
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number of distinctive features, including corporate seals, Mossack Fonseca insignia and accurate
address and contact information for large numbers of employees and clients, and signatures of
individuals, including von der Goltz and Gaffey, that match the signatures of these individuals
that can be found in other sources. And, as noted, a large number of the documents from the
Panama Papers Database can be shown to be exact duplicates of documents found elsewhere, a
factor which strongly indicates that the database as a whole is authentic.
These factors equal or exceed the grounds that have been found sufficient to clear the
modest hurdle of authentication. See, e.g., United States v. Maldonado-Rivera, 922 F.3d 934,
957 (2d Cir. 1990) (affirming admission of document due to the fact that it bore an apparently
authentic logo of an organization, its contents were consistent with press reporting about the
conduct of the organization, and it was found with other co-conspirator documents); United
States v. Prevezon Holdings, Ltd., 319 F.R.D. 459, 462-63 (S.D.N.Y. 2017) (authenticating
Russian criminal case file through videotaped testimony of witness who had accessed and copied
the case file onto a set of SD cards); Luv n Care Ltd. v. Regent Baby Prods. Corp., 986 F. Supp.
2d 400, 408 n.40 (S.D.N.Y. 2013) (authenticating third-party catalogs based on their appearance
and public contents); Kaur v. N.Y. City Health & Hospitals Corp., 688 F. Supp. 2d 317, 324
(S.D.N.Y. 2010) (authenticating documents that were “identical in form” to those which were
acknowledged); Stiles Machinery Inc. v. Lestorti, No. 05 Civ. 397 (JGM), 2007 WL 2099218, at
*7 (D.Conn. Jul. 17, 2007) (holding that a document can be authenticated by comparing a
signature on the document to one that is already admitted).
The basis for authentication is even stronger here because the information in the Panama
Papers Database is corroborated by a wealth of outside information. For instance, the Panama
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Papers Database contains countless examples of records relating to transactions that can be
verified by other documentation the Government has obtained in the course of its investigation.
These examples include: multiple wire instructions from Mossack Fonseca employees regarding
the Revack Bank Accounts, which can be matched up with actual transactions found in bank
records obtained by the Government; correspondence and instructions regarding investments
made by the Revack Entities in United States private equity funds that correspond to the records
maintained by those private equity funds; and internal memos and documents that contain
information about von der Goltz, the von der Goltz family, and the Revack Entities that matches
documentation found in the files of the U.S. Accounting Firm.
For instance, the Panama Papers Database contain multiple due diligence memos created
by Mossack Fonseca that discuss the history and structure of the Revack Entities and von der
Goltz’s ownership of them as well as aspects of von der Goltz’s family, such as that he inherited
certain assets from his father, his place of residence, and information about his wife and children.
The information in these memos is corroborated by other documents regarding von der Goltz’s
family and the history of the Revack Entities found in the U.S. Accounting Firm files.
Courts routinely authenticate documents when, as here, they appear to be authentic and
contain information that corresponds to information found in authenticated documents. See, e.g.,
Maldonado-Rivera, 922 F.2d at 957 (a writing can be authenticated under Rule 901(b)(4) if it
“‘deals with a matter sufficiently obscure or particularly within the knowledge of the persons
corresponding so that the contents of the writing were not a matter of common knowledge’”)
(quoting 5 J. Weinstein & M. Berger, Weinstein’s Evidence, ¶ 901(b)(4)); United States v.
Turner, 718 F.3d 226, 233 (3d Cir. 2013) (finding authenticity established where foreign bank
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documents had appearance of bank records, were addressed to known addresses, were found in
an expected place, and were partly reconciled with authenticated bank records); United States v.
Rue, 819 F.2d 1488, 1494 (8th Cir. 1987) (agreeing that “authenticity could readily be
established under Rule 901(b)(4) by comparing the contents of the patient cards with information
from other documents whose authenticity is already established” together with familiarity with
blank versions); United States v. Greenfield, 831 F.3d 106, 118 (2d Cir. 2016) (authenticity can
be established “by comparison to other related documents”).
Finally, additional confirmation of the authenticity of the Panama Papers Database comes
from statements made by Ramses Owens and by Mossack Fonseca employees after the Panama
Papers story originally broke. In May and June 2016, the U.S. Law Firm Representative, in the
course of his representation of von der Goltz, attempted to obtain copies of documents from
Mossack Fonseca. The U.S. Law Firm Representative first asked Owens, who on June 6, 2016
sent the U.S. Law Firm Representative a copy of the Revack Trust Agreement, an exact duplicate
of the copy later found in the Panama Papers Database. In his cover email, Owens expressly
authenticated the document’s provenance and confirmed that the leaked Panama Papers were
from Mossack Fonseca. Owens wrote: “These are old documents. Regretfully, these are in
the files. And I believe also in other hands.” Later, the U.S. Law Firm Representative
contacted Mossack Fonseca employees directly, and they responded in August 2016 by sending
him more than 700 pages of documents, many of which are exact duplicates of documents in the
Panama Papers Database, providing further confirmation that the documents in the database are
authentic.
Taken together, the testimony about the Panama Papers Database, distinctive features of
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the documents in the database, comparisons with duplicates of many of the documents found in
the Database and in other places, comparison of the information in the documents to information
obtained from other sources, and statements made by Owens and Mossack Fonseca employees
are more than sufficient to allow the jury to find that the documents in the Panama Papers
Database are authentic. To the extent that the defense wishes to make any arguments
challenging the authenticity of these documents, such arguments go to the weight of the evidence
rather than its admissibility, and are properly made to the jury. See, e.g., Maldonado-Rivera,
922 F.2d at 958 (“Defendants’ challenges to the authenticity of the communiqué, such as their
argument that the logo could have been constructed by someone outside the Macheteros
organization, go more to the weight of the evidence than to its admissibility.”) (quotation marks
and citation omitted).
IV. Evidence of Gaffey’s Work With Client-1 is Admissible as to Each Defendant
A. Background
In the early 2000s, Client-1, a U.S. citizen and taxpayer then living in London, was
interested in establishing a trust to hold income that Client-1 earned while living outside the United
States. Client-1 discussed the issue with one of von der Goltz’s sons, a social acquaintance of
Client-1. Subsequently, von der Goltz, through his son, advised Client-1 to speak with Ramses
Owens at Mossack Fonseca, whom von der Goltz described as his attorney. Client-1 consulted
with Owens, who created a Panamanian foundation for Client-1, along with several sub-entities
held by the newly established foundation. Owens then opened at least two foreign bank accounts,
held in the names of the newly created entities for Client-1. Client-1 held Client-1’s foreigngenerated income, ultimately totaling approximately $5 million, in the foreign bank accounts.
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Client-1 did not report or pay U.S. income taxes on any of the foreign income.
Client-1 moved back to the United States in the mid-2000s. In 2008, Client-1 wanted to
move Client-1’s offshore money to the United States. Client-1 told Owens that Client-1 was
interested in joining the OVDP. Owens counseled Client-1 instead to speak with Gaffey.
Client-1 contacted Gaffey by phone, and the two later met in Massachusetts, where Client-1
explained that Client-1 wanted to repatriate some undisclosed offshore funds. Gaffey suggested
several ways for Client-1 to repatriate the foreign money without disclosing Client-1’s ownership
of the offshore bank accounts to the IRS, including that Client-1 could create a U.S. company
and have Owens “buy” the company from Client-1 using Client-1’s offshore money.
Ultimately, Client-1 pursued a variant of this suggestion: Client-1 had Owens wire the money
into the United States to “buy” an existing company that Client-1 held, so as to make Client-1’s
foreign income appear like proceeds from the sale.
Gaffey then advised Client-1 how to draft a company sale agreement that would appear to
be legitimate, notwithstanding the lack of any actual sale and the fact that it was Client-1’s own
money that was being sent to Client-1. Gaffey also advised Client-1 that the sale price of the
company should not exceed $3 million, so as to appear to be a reasonable and legitimate
transaction, and gave advice about reporting the sham sale on Client-1’s tax return.
B. Applicable Law
To begin, evidence of uncharged criminal activity is not considered “other crimes”
evidence under Federal Rule of Evidence 404(b) “if it arose out of the same transaction or series
of transactions as the charged offense, or if it [is] inextricably intertwined with the evidence
regarding the charged offense, or if it is necessary to complete the story of the crime [on] trial.”
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United States v. Towne, 870 F.2d 880, 886 (2d Cir. 1989) (citations omitted) (alterations in
original); see also United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (same).
Additionally, where the uncharged act is background to the conspiracy, and shows the
relationship between and among the conspirators, that evidence is admissible as direct evidence
and not subject to Rule 404(b). See United States v. Edwards, 723 Fed. App’x. 48, 49-50 (2d
Cir. 2018).
Rule 404(b) also allows the Government to introduce evidence of a defendant’s other bad
acts if that evidence is relevant to show something other than a defendant’s propensity to commit
a crime, and if the probative value of the evidence of the prior conviction is not substantially
outweighed by the danger of unfair prejudice. United States v. Zackson, 12 F.3d 1178, 1182
(2d Cir. 1993).

The Second Circuit has adopted an “inclusionary approach” to admitting

evidence of other crimes, wrongs, or acts. See, e.g., United States v. LaFlam, 369 F.3d 153,
156 (2d Cir. 2004); United States v. Lasanta, 978 F.2d 1300, 1307 (2d Cir. 1992).
Evidence of uncharged criminal activity may be admitted pursuant to Rule 404(b) of the
Federal Rules of Evidence, to demonstrate that a defendant possessed the requisite knowledge or
intent to commit the charged crimes, or to prove his motive, opportunity, preparation, plan,
identity, or absence of mistake or accident. See Zackson, 12 F.3d at 1182 (“Where a defendant
claims that his conduct has an innocent explanation, prior act evidence is generally admissible to
prove that the defendant acted with the state of mind necessary to commit the offense charged.”).
Evidence of such extrinsic acts is specifically admissible “to explain how a criminal relationship
developed; this sort of proof furnishes admissible background information in a conspiracy case.
Such proof may also be used to help the jury understand the basis for the co-conspirators’
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relationship of mutual trust.” United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996) (citations
and quotation marks omitted); see also, e.g., United States v. Araujo, 79 F.3d 7, 8 (2d Cir. 1996)
(“The challenged evidence legitimately tended to prove the nature of the relationship between
[the defendant] and the other conspirators, to explain why [a co-conspirator] asked [the
defendant] to participate in the pick-up, and to explain why [the co-conspirator] trusted [the
defendant] as a co-conspirator.”).
Such evidence is admissible, pursuant to Rule 404(b), if it is: (1) advanced for a proper
purpose; (2) relevant to the crimes for which the defendant is on trial; and (3) has probative value
which is not substantially outweighed by any unfair prejudicial effect, pursuant to Federal Rule
of Evidence 403. If evidence is admitted pursuant to Rule 404(b), the defendant may request a
limiting instruction. See Pipola, 83 F.3d at 566; see also United States v. Ramirez, 894 F.2d
565, 568 (2d Cir. 1990) (citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988));
United States v. Ortiz, 857 F.2d 900, 903 (2d Cir. 1988) (“other acts or crimes are admissible
under Rule 404(b) to prove matters other than the defendant's criminal propensity”).
C. Discussion
Evidence of Gaffey’s work with Owens to assist Client-1 in the repatriation of Client-1’s
foreign undeclared assets through the sham sale of a company is admissible as direct evidence of
the crimes charged. It demonstrates the existence and nature of both von der Goltz and Gaffey’s
relationship with their co-conspirator Ramses Owens, and also to show Gaffey’s ongoing work
with Owens in connection with tax evasion. In the alternative, this evidence should also be
admitted under Federal Rule of Evidence 404(b) to show Gaffey’s knowledge concerning (1)
Mossack Fonseca’s work to help conceal assets from the U.S. Government for U.S. taxpayers,
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(2) applicable tax laws regarding repatriation of foreign assets by U.S. taxpayers, and (3) his
knowledge and absence of mistake in the creation of falsified records to facilitate the
concealment of assets and tax evasion by a U.S. person. This evidence is of particular
importance to show Gaffey’s knowledge of international tax matters, repatriation of assets,
foreign document creation, and the ownership or sale of foreign entities, and Gaffey’s intent to
violate the tax laws.
Here, both the conspiracy to attempt to evade taxes and the money laundering conspiracy
charged as Counts One and Three of the S6 Indictment require the Government to prove that
Gaffey and von der Goltz in fact joined these conspiracies. Evidence that von der Goltz, via his
son, recommended the services of Owens tends to show that Owens and von der Goltz in fact
had a professional relationship relating to the maintenance of offshore assets and their
concealment from U.S. tax authorities. Additionally, once Client-1 began working with Owens,
Owens’s recommendation to Client-1 to speak with Gaffey tends to show that Owens and Gaffey
also had a close professional relationship regarding the maintenance and concealment of offshore
assets. Further, the work performed by Gaffey and Owens for Client-1 is within the same
timeframe as the charged conspiracies. Thus, this evidence is not subject to Rule 404(b) but “is
necessary to complete the story of the crime [on] trial.” See Towne, 870 F.2d at 886.
Yet, even if the documents are subject to Rule 404(b), the evidence of Gaffey’s illegal
assistance in repatriating undeclared foreign assets of Client-1, a U.S. taxpayer, is admissible to
show Gaffey’s knowledge and absence of mistake, as well as the “basis for the trust between the
co-conspirators.” United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009). Here, the proof
at trial will include evidence that von der Goltz conspired with Owens and Gaffey to assist him
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in the evasion of taxes through at least 2016. Throughout this time, the evidence will
demonstrate that Gaffey and Owens frequently worked together in their shared criminal
conspiracies, including formulating their preferred channels to communicate information,
exchanging ideas to assist von der Goltz’s criminal goals, ensuring that their cover stories to
third parties—including banks and governmental bodies—were consistent, and creating false
documents to assist von der Goltz in his evasion of taxes. Thus, establishing the history of the
relationship between both trial defendants and Owens is highly probative of the nature and scope
of the conspiracy.4
Furthermore, Gaffey counseled Client-1 on how to repatriate foreign undeclared assets to
the United States as a U.S. taxpayer. Such counseling demonstrates multiple important points.
First, Gaffey’s work with Client-1 helps prove Gaffey’s knowledge of Mossack Fonseca’s and
Owens’s business, to wit, helping clients conceal their assets through offshore corporate
structures, including companies, trusts, and foundations. Such evidence will further show that
Gaffey was not an innocent actor who was misled by Owens and other Mossack Fonseca
employees. Rather, evidence regarding Gaffey’s efforts to repatriate Client-1’s assets to the
United States demonstrates Gaffey’s considerable knowledge concerning techniques to illegally
repatriate foreign assets into the U.S. while avoiding tax consequences for U.S. taxpayers.

4

Von der Goltz is expected to argue that he never possessed an attorney-client relationship with
Owens despite their working together for over fifteen years. See Dkt. No. 115 (von der Goltz
claimed he had no basis to contest the Government’s crime fraud motion). Therefore, the fact
that von der Goltz, through his son, recommended Owens to Client-1 and described Owens as his
lawyer, is further important background information to demonstrate the professional relationship
between these co-conspirators.
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Moreover, Gaffey worked with Owens on behalf of Client-1. Throughout the duration
of the charged conspiracies, Owens and Gaffey created or otherwise used foreign corporate and
legal documents to further the criminal scheme, including the formation of bank accounts held in
the name of the offshore structures. The Government will argue that Gaffey and Owens
together created numerous false documents to assist von der Goltz in evading his taxes, including
sham certifications and other corporate documents purporting to show that von der Goltz’s
mother was the beneficial owner of von der Goltz’s assets. Evidence that Gaffey counseled
Client-1 on how to draft the sham corporate sale agreement demonstrates his knowledge of using
false documentation to outwardly justify fraudulent activity. Such evidence also tends to prove
Gaffey’s absence of mistake with regard to utilizing falsified documents in furtherance of the
charged conspiracy.
Finally, such evidence shows a common modus operandi between Gaffey’s actions on
behalf of von der Goltz and Gaffey’s actions on behalf of Client-1. Evidence of modus
operandi is admissible under Rule 404(b), particularly where the characteristics of a common
scheme are “sufficiently idiosyncratic to permit a fair inference of a pattern’s existence.”
United States v. Sliker, 751 F.2d 477, 487 (2d Cir. 1984). See also United States v. Carlton, 534
F.3d 97, 101, 102 (2d Cir. 2008) (evidence of prior similar acts was properly admitted to show a
common modus operandi); United States v. Graham, No. 14 Cr. 500 (NSR), 2015 WL 6161292,
at *4 (S.D.N.Y.) (Oct. 20, 2015) (“To merit admission [of prior acts evidence] under [the modus
operandi] theory, the extrinsic acts must share ‘unusual characteristics’ with the act charged or
represent a ‘unique scheme.’” (quoting Berkovich v. Hicks, 922 F.2d 1018, 1022 (2d Cir. 1991)).
Here, Gaffey undertook the same unique scheme of using offshore corporate entities established
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by Mossack Fonseca to help another U.S. person, Client-1, evade Client-1’s U.S. tax obligations,
and using false documents to outwardly justify the fraudulent activity.
V. The Defendants Should be Precluded from Offering Self-Serving Hearsay
A. Background
As discussed above, over the course of the conspiracy, the defendants and their coconspirators made various statements seeking to conceal von der Goltz’s ownership of the
Revack Entities. Specifically, the defendants falsely represented that von der Goltz’s mother
was the beneficial owner of the Revack Entities, both in communications with unwitting third
parties and in documents used to take steps in furtherance of the conspiracy, such as opening
bank accounts and executing transactions in the name of the Revack Entities (the “False
Exculpatory Statements”). The False Exculpatory Statements, if offered by von der Goltz or
Gaffey through the testimony of others, would constitute inadmissible self-serving hearsay. See
Fed. R. Evid. 802. Additionally, the defendants’ possible attempt to use documents that contain
False Exculpatory Statements would constitute hearsay within hearsay, with each layer of
hearsay requiring an applicable hearsay exception for the document and the False Exculpatory
Statement within them to be admissible. See Fed. R. Evid. 805. The Court should preclude the
defendants from admitting this self-serving hearsay.
B. Applicable Law
A hearsay statement is “a statement by a declarant not ma[d]e while testifying at the
current trial or hearing and offer[ed] in evidence to prove the truth of the matter asserted in the
statement.” Davis v. Velez, 797 F.3d 192, 200 (2d Cir. 2015) (internal quotation marks omitted)
(citing FRE 801 and 802). Hearsay is generally not admissible unless an exception permits its
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admissibility. See id. However, a “party’s own statement, if offered against him, is not
hearsay.” United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982); Fed. R. Evid. 801(d)(2).
Statements made by a defendant are generally admissible “regardless of whether such statements
were against his interest when made.” United States v. Gotti, 457 F.Supp.2d 395, 397 (S.D.N.Y
2006). Additionally, and as discussed in greater detail above, a statement offered against a party
and made by a co-conspirator during the course and in furtherance of the conspiracy is not
hearsay. See United States v. Paredes, 176 F.Supp.2d 183, 186 (S.D.N.Y. 2001).
However, it is well-established that a defendant does not have a parallel ability to offer
his own statements into evidence. “When the defendant seeks to introduce his own prior
statement for the truth of the matter asserted, it is hearsay, and it is not admissible.” United
States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982); see also United States v. Kadir, 718 F.3d 115,
124 (2d Cir. 2013) (“A defendant may not introduce his own prior out-of-court statements
because they are hearsay, and . . . not admissible.”) (quotation marks omitted); United States v.
Rea, 958 F.2d 1206, 1225 (2d Cir. 1992) (“To the extent that [a defendant offers] proof of his
own prior statements for the truth of the matters asserted, they [are] hearsay.”). Further,
“[w]hen the defendant offers his own statement simply to show that it was made, rather than to
establish the truth of the matter asserted, the fact that the statement was made must be relevant to
the issues in the [case].” Marin, 669 F.2d at 84.
To the extent a defendant argues that his statements are admissible as a declaration of his
then-existing state of mind under Rule 803(3), that hearsay exception applies only to statements
that “face forward, rather than backward.” United States v. Blake, 195 F.Supp.3d 605, 610
(S.D.N.Y. 2016) (quoting United States v. DiMaria, 727 F.2d 265, 271 (2d Cir. 1984)). Rule
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803(3) cannot be used by a defendant to introduce his own self-serving out-of-court statements
personally or through other witnesses when those statements recount past events. See id. at 610.
Further, to the extent a defendant argues that his self-serving statements imbedded within
documents are admissible within the business records or another hearsay exception, “[e]ach
hearsay statement within multiple hearsay statements must have a hearsay exception in order to
be admissible.” United States v. Cruz, 894 F.2d 41, 44 (2d Cir. 1990) (Rule 805 applies when
the first level of hearsay is overcome by the public or business records exception); see also
United States v. Bortnovsky, 879 F.2d 30, 34 (2d Cir. 1989) (if a document is admitted pursuant
to the business records exception, the statements within the record must also fall within a hearsay
exception); Lewis v. Velez, 149 F.R.D. 474, 487 (S.D.N.Y. 1993) (if a document is admitted
pursuant to the public records exception, the statements within the record must also fall within a
hearsay exception).
It is true that there are certain circumstances when the “rule of completeness,” Fed. R.
Evid. 106, permits a party to introduce additional portions of a statement or document when
necessary to put the portions of statements offered by the other party in context. However, Rule
106 “does not render admissible evidence that is otherwise inadmissible.” United States v.
Terry, 702 F.2d 299, 314 (2d Cir. 1983). Thus, the rule of completeness requires admission of a
hearsay statement only when the statement is “necessary to explain the admitted portion, to place
the admitted portion in context, to avoid misleading the jury, or to ensure fair and impartial
understanding of the admitted portion.” United States v. Johnson, 507 F.3d 793, 796 (2d Cir.
2007) (emphasis added) (quoting United States v. Castro, 813 F.2d 571, 575-76 (2d Cir. 1987)).
“The completeness doctrine does not, however, require the admission of portions of a statement
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that are neither explanatory of nor relevant to the admitted passages.” United States v. Jackson,
180 F.3d 55, 73 (2d Cir. 1999). “Where the danger of such distortion does not exist, . . . a
defendant may not rely on the rule of completeness to put his out-of-court exculpatory statements
before the jury through the testimony of another witness . . . , while at the same time maintaining
his own Fifth Amendment privilege so as to avoid being cross-examined about his prior
statements.” United States v. Harper, No. 05 Cr. 6068L, 2014 WL 140125, at *5 (W.D.N.Y.
Jan. 20, 2009); United States v. Jackson, 180 F.3d at 73 (no abuse of discretion to preclude
portion of tape that included defendant's “own self-serving statements”); United States v.
Gonzalez, 399 F. App’x 641, 645 (2d Cir. 2010) (“[T]he rule of completeness is not a
mechanism to bypass hearsay rules for any self-serving testimony.”)
C. Discussion
The defendants should not be permitted to offer the False Exculpatory Statements at trial.
Generally, the False Exculpatory Statements—the defendants and their co-conspirators’ attempts
to convince others that von der Goltz’s mother owned the Revack Entities—fall into two
categories. First, the defendants and their co-conspirators actively told other unwitting third
parties that von der Goltz’s mother was the owner of the Revack Entities. To the extent that
these third parties formed a belief that von der Goltz’s mother was in fact the owner of the
Revack Entities, the only basis for that belief was that the defendants, their co-conspirators, or an
agent of the defendants or their co-conspirators, had asserted it to be true. Second, the
defendants and their co-conspirators created various documents that state that von der Goltz’s
mother is the owner of the Revack Entities. These documents were often created to either
convince others that von der Goltz’s mother was the owner of the Revack Entities or to enable
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the conspirators to take steps in furtherance of the conspiracy, such as the creation and
maintenance of bank accounts and execution of transactions in the United States in the name of
the Revack Entities and for the benefit of von der Goltz.5
With regard to the first category, the defendants should be precluded from eliciting False
Exculpatory Statements that they and their co-conspirators made to third parties during the cross
examination of Government witnesses or the direct examination of defense witnesses. These
statements constitute inadmissible hearsay. See Rea, 958 F.2d at 1225 (defendant not permitted
to offer his own exculpatory statements even through another witness to those statements). If
the defendants attempt to argue the False Exculpatory Statements are not offered for their truth
but for some other reason such as their effect on the listener, this is not relevant because the state
of mind of third parties is not at issue. The only relevance of the defendants’ prior statements
that von der Goltz’s mother was the owner of the Revack Entities is to establish the truth of the
matter asserted, and therefore, these statements constitute inadmissible hearsay if offered by the
defendants.
Nor are the False Exculpatory Statements admissible under Rule 803(3), which permits a
statement of the declarant’s then existing state of mind, emotion, or physical condition. See
DiMaria, 727 F.2d at 270. Rule 803(3) cannot be used to admit a hearsay statement of memory
or belief to prove the fact or belief itself. See id. (noting Advisory Committee note that “[t]he

5

To be clear, the Government may choose to introduce certain of these False Exculpatory
Statements at trial. However, any such statement would be offered not for their truth, but for the
falsity of such statements, and therefore would fall outside of any hearsay restrictions. Moreover,
to the extent offered for its truth, any such statement would properly admitted by the
Government, though not by the defendant, as a statement offered against the defendants pursuant
to Federal Rule of Evidence 801(d)(2), i.e., as an opposing party’s statement and thus not
hearsay.
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exclusion of ‘statements of memory or belief to prove the fact remembered or believed’ is
necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from
allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of
the happening of the event which produced the state of mind”). The defendants cannot use Rule
803(3) to offer their own self-serving hearsay statements that von der Goltz’s mother was the
beneficial owner of the Revack Entities because these statements would not show any thenexisting state of mind. Rather, the statements would fall directly within the rule’s prohibition of
“a statement of memory or belief to prove the fact remembered or believed.” See Fed. R. Evid.
803(3); see also DiMaria, 727 F.2d at 270-71. Thus, Rule 803(3) does not offer a means for the
defendants to offer the False Exculpatory Statements into evidence.
For the same reasons, the defendants should be precluded from eliciting or admitting the
False Exculpatory Statements that are imbedded within documents. For instance, the defendants
may seek to invoke the business records exception to the hearsay rule to offer certain documents
into evidence, such as bank account opening documents. See Fed. R. Evid. 803(6). Yet, even
if the defendants are able to establish the elements of the business records hearsay exception to
admit certain documents, that would not render hearsay within these records admissible.
Federal Rule of Evidence 805 requires that each level of hearsay, including the False
Exculpatory Statements within the documents, be independently cleared by a hearsay exception
prior to admissibility. See Cruz, 894 F.2d at 44 (rejecting defendant’s attempt to use business
records exception to admit reports containing hearsay statements). The False Exculpatory
Statements imbedded within records the defendants may seek to admit are not admissible to
prove the truth of the matter asserted—that von der Goltz’s mother is the owner of the Revack
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Entities—and should be precluded.
Rule 106, the rule of completeness, does not alter this result. In some circumstances, the
rule of completeness may permit a defendant to offer additional statements within a particular
admitted statement or document, or a related statement or document, to provide needed context
to the portions of that statement or document offered by the Government. See Johnson, 507
F.3d at 796. However, Rule 106 does not make otherwise inadmissible evidence admissible.
See Terry, 792 F.2d at 314. The defendants cannot use this doctrine to offer otherwise
inadmissible False Exculpatory hearsay statements into evidence. See Jackson, 180 F.3d at 73
(rejecting defendant’s attempt to admit own self-serving statements through Rule 106). Further,
the defendants cannot offer their False Exculpatory Statements through the testimony of other
witnesses by way of the rule of completeness. See Harper, 2009 WL 140125, at *5
(explaining that a defendant’s self-exculpatory statements are not admissible through another
witness).
As such, the defendants should not be permitted to offer the False Exculpatory
Statements, either through witness testimony or documentary evidence. By either method, the
defendants would be offering the False Exculpatory Statements for their truth without a valid
hearsay exception permitting their use.
VI. Von Der Goltz Should be Precluded from Asserting an Advice of Counsel Defense
A. Background
As noted above, von der Goltz retained the U.S. Law Firm in 2014 after receiving a letter
from the Swiss Bank informing him that the Swiss Bank would be informing the United States
government about his accounts there. After von der Goltz met with the U.S. Law Firm, the U.S.
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Law Firm informed the Swiss Bank that von der Goltz would enter the OVDP. Later, von der
Goltz changed course and instead filed amended FBARs in which he falsely claimed that he did
not have a financial interest in the Swiss Bank accounts. Von der Goltz subsequently retained
the U.S. Law Firm in the wake of the news of the Panama Papers in 2016. The U.S. Law Firm
then represented him in connection with the false statements he made to the IRS claiming that his
mother was the beneficial owner of the Revack Entities and the Revack Bank Accounts.
On July 24, 2018, von der Goltz’s counsel in this matter wrote a letter (the “July 24
Letter”) informing the Government that von der Goltz “may argue to the jury that the
government cannot establish beyond a reasonable doubt that Mr. von der Goltz had the required
mens rea with respect to the charges in the indictment because lawyers at [the U.S. Law Firm]
were aware of all material facts relating to the pertinent legal, tax, and financial structures of the
von der Goltz family and provided Mr. von der Goltz legal advice on a variety of topics relevant
to his state of mind regarding his tax obligations.” See Dkt. 111 (Rehn Aff in Support of
Government’s Crime-Fraud Motion, Ex. G). The letter further stated that von der Goltz’s
purported reliance on the U.S. Law Firm’s advice applied not only to his conduct from 2014
through 2016, but also dating back to approximately 1981, when von der Goltz first retained an
attorney who later became a partner at the U.S. Law Firm (and who is now deceased).
In the July 24 Letter, von der Goltz waived any claim of attorney-client privilege with
respect to his relationship with the U.S. Law Firm, except to the extent that the advice related to
defending against this criminal investigation, which the July 24 Letter identified as having begun
when von der Goltz retained criminal counsel on June 7, 2016. Von der Goltz and the U.S. Law
Firm have since produced a large volume of documents from the U.S. Law Firm’s files
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pertaining to von der Goltz, and the Government has met with and interviewed the U.S. Law
Firm representative several times.
The discovery from the U.S. Law Firm, and the Government’s interviews with the U.S.
Law Firm Representative, have revealed that there is no factual basis for von der Goltz to assert
an advice-of-counsel defense to any of the charges in the Indictment. On the contrary, the
evidence reveals that prior to 2014, von der Goltz never sought or received personal tax advice
from the U.S. Law Firm. Rather, von der Goltz used the U.S. Law Firm primarily in connection
with his and his family’s real estate business dealings in Florida. While there are passing
references to Revack in the U.S. Law Firm’s files, because von der Goltz used Revack as a
vehicle to make his Florida real estate investments and receive distributions, there is no
indication that the U.S. Law Firm gave von der Goltz any specific advice about the tax
implications of Revack or the Revack Entities. Indeed, in the tens of thousands of pages from
the U.S. Law Firm’s files, the Government has not been able to locate a single copy of von der
Goltz’s personal tax returns from any year, or any U.S. Law Firm work product relating to von
der Goltz’s tax returns.
The only personal tax work the U.S. Law Firm apparently ever did for von der Goltz was
to assist him in filing the amended FBARs in 2014 and in meeting with the DOJ in 2016, after
the Panama Papers story broke. With respect to that work, the discovery has revealed that von
der Goltz and Gaffey made a series of material omissions and affirmative misrepresentations to
the U.S. Law Firm Representative to induce him to assist them with making false statements to
the Government. These omissions and misrepresentations included the following:


Von der Goltz told the U.S. Law Firm Representative that his mother was the
beneficial owner of the Revack Entities. He did not inform the U.S. Law Firm
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Representative about the Revack Holdings Foundation Regulations or the Revack
Trust Agreement, both of which described him as the first beneficiary, nor did he
inform the U.S. Law Firm Representative that he had personally directed the
formation of the Revack Holdings Foundation.


Von der Goltz did not inform the U.S. Law Firm Representative that he had opened
the Swiss Bank accounts, and that he had regularly used the Swiss Bank accounts to
execute transactions for his personal benefit.



The U.S. Law Firm representative discussed with von der Goltz a $430,000 transfer
from the Swiss Bank EMJO account to von der Goltz’s personal account in the
United States in 2013, and von der Goltz falsely stated that this transfer was a gift
from his mother and that he had reported it to the IRS. In fact, the transfer was not a
gift and von der Goltz had not reported it to the IRS.



Later, when the U.S. Law Firm Representative asked for documentation that the
transfer had been reported as a gift as von der Goltz claimed, Gaffey created a false
IRS filing that was backdated to 2013 and sent it to the U.S. Law Firm
Representative, even though there had been no such document in Gaffey’s files
previously and no such filing had ever been made.



When the Swiss Bank accounts were closed, the funds were transferred to accounts at
the Panamanian Bank. Von der Goltz falsely told the U.S. Law Firm representative
that he knew nothing about these accounts, and Gaffey sent an email to the U.S. Law
Firm representative falsely stating that von der Goltz had no ownership or control
over the Panamanian Bank accounts, even though Gaffey and von der Goltz knew
that von der Goltz was identified as the beneficial owner of the Panamanian Bank
accounts, and von der Goltz regularly instructed Gaffey to direct Owens to execute
transactions in the Panamanian Bank accounts on von der Goltz’s behalf.

The U.S. Law Firm Representative relied on those omissions and misrepresentations,
among others, in assisting von der Goltz with filing the FBARs and preparing for the meeting
with the DOJ on May 19, 2016. Subsequently, the U.S. Law Firm Representative finally
received and reviewed the Revack Trust Agreement and the Revack Holdings Foundation
Regulations. After doing so, he advised von der Goltz to retain criminal counsel and wrote an
email to Gaffey on June 6, 2016 saying that, contrary to von der Goltz’s prior statements, “we
will likely take the position that [von der Goltz] is the beneficial owner.” In the same email, the
U.S. Law Firm Representative directed Gaffey to prepare an estimate of the penalty von der
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Goltz would have to pay upon entering the OVDP. Nevertheless, von der Goltz never entered
into the OVDP program, nor did he pay any of the substantial taxes due and owing on his
undisclosed assets and income.
B. Applicable Law
As the Second Circuit has recognized, “the situations in which the advice-of-counsel
defense may be employed are severely limited.” Lurie v. Wittner, 228 F.3d 113, 134 (2d Cir.
2000). Perhaps most fundamentally, “[a] defense of reliance on advice of counsel is available
only to the extent that it might show that a defendant lacked the requisite specific
intent.” Stichting Ter Behartiging Van De Belangen Van Oudaandeelhouders In Het Kapitaal
Van Saybolt International B.V. v. Schreiber, 327 F.3d 173, 183 (2d Cir. 2003). To benefit from
an advice-of-counsel defense, a defendant must show that he (1) honestly and in good faith
sought the advice of counsel; (2) fully and honestly laid all the facts before his counsel; and (3)
in good faith and honestly followed his counsel’s advice, believing it to be correct and intending
that his acts be lawful. United States v. Colasuonno, 697 F.3d 164, 181 (2d Cir. 2012)
(discussing advice-of-counsel defense); SEC v. Tourre, 950 F. Supp. 2d 666, 683 (S.D.N.Y.
2013). Where a defendant cannot make such a showing, argument and evidence of advice of
counsel may be precluded. See, e.g.; United States v. Evangelista, 122 F.3d 112, 117 (2d Cir.
1997) (rejecting defense of reliance on accountant’s advice in tax evasion case when defendant’s
conduct was contrary to advice); SEC v. Scott, 565 F.Supp. 1513, 1534-35 (S.D.N.Y. 1983)
(failure to provide counsel with timely and complete advice renders defense unavailable); cf.
United States v. Scully, 877 F.3d 464, 476 (2d Cir. 2017) (“defendants are entitled to an adviceof-counsel instruction only if there are sufficient facts in the record to support the defense”);
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United States v. Lowe, 664 F. App’x 38, 41 (2d Cir. 2016) (upholding district court’s denial of
requested jury instruction regarding advice of tax-preparer defense).
To be sure, “[u]pon a proper request, a defendant is entitled to a jury instruction on any
defense theory for which there is a foundation in the evidence, even if the trial court determines
that the evidentiary foundation of the defense theory is only tenuous.” United States v. Paul,
110 F.3d 869, 871 (2d Cir. 1997) (citations omitted). It is equally well-established, however,
that a court may conduct a pre-trial evidentiary hearing “to determine whether a defense fails as a
matter of law.” Id.; see also United States v. Bakhtiari, 913 F.2d 1053, 1057 (2d Cir. 1990)
(approving pre-trial hearing to determine whether evidence of duress or coercion failed as a
matter of law). “If, after the hearing, the court finds that the defendant’s evidence is insufficient
as a matter of law to establish the defense, the court is under no duty to give the requested jury
charge or to allow the defendant to present the evidence to the jury.” Paul, 110 F.3d at 871.
C. Discussion
Aside from the general statement quoted above from the July 24 Letter, von der Goltz has
thus far failed to proffer any particular factual prerequisites of his apparent intent to offer an
advice-of-counsel defense. The Government is not aware of any facts indicating that von der
Goltz relied on the U.S. Law Firm’s advice to conceal his ownership of the Revack Entities from
the IRS prior to 2014. On the contrary, as discussed above, there does not appear to be any
indication that the U.S. Law Firm gave the defendant any personal tax advice during that time
period. Absent any such advice, there can be no advice-of-counsel defense.
With respect to the false 2014 FBAR filings and the false 2016 statements to the DOJ, the
only personal tax advice that the U.S. Law Firm gave von der Goltz was that, if the accounts
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were in fact beneficially owned by his mother, then he did not need to report having a financial
interest in those accounts. However, that advice rested on von der Goltz and Gaffey’s
misrepresentations to the U.S. Law Firm Representative that the accounts were owned by his
mother, which in turn rested on a series of other material omissions and misrepresentations about
the Revack Entities, Revack Bank Accounts, and von der Goltz’s prior tax filings. A defendant
may not assert advice of counsel if he did not “la[y] all the facts before his counsel,”
Colasuonno, 697 F.3d 164, 181 (quotation marks omitted), and this rule applies not only to
affirmative misrepresentations, but also if the client failed to provide material facts or documents
to his attorney. Id. (denying advice of counsel defense where defendant had not informed
attorney of restitution order or provided attorney with a copy of restitution order). As detailed
above, von der Goltz manifestly failed to lay all the facts before the U.S. Law Firm.6
Nor should von der Goltz be permitted to attempt to plant the idea of advice of counsel in
the minds of the jury without actually meeting the factual prerequisites of the advice of counsel
defense. In cases in which a defendant cannot clear the advice-of-counsel threshold, courts have
been careful to prevent defendants from seeking to sow jury confusion by references to the
presence of counsel as being somehow exculpatory. See SEC v. Tourre, 950 F.Supp.2d 666,
684 (S.D.N.Y. 2013) (where defendant did not request advice from counsel or provide all the
relevant information to counsel, “it would be irrelevant, misleading, or both to emphasize the
presence of counsel” in connection with the transactions at issue). Thus, in Tourre, the court

6

To the extent that von der Goltz’s defense is that his mother in fact was the beneficial owner of
the accounts, then the advice of counsel adds nothing to that defense, and von der Goltz’s
attempts to introduce communications with his attorney would be just another way to seek to
introduce his own self-serving hearsay statements.
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ordered defense counsel not to refer to the presence and involvement of lawyers in the opening
statement, or to make arguments or elicit testimony designed to suggest that the defendant had
relied on legal advice. Id. at 685. The court cited the trial transcript in SEC v. Stoker, No. 11
Civ. 7388 (S.D.N.Y. filed Oct. 19, 2011), where Judge Rakoff had made a similar ruling, stating
that “because no advice of counsel defense was being asserted, focus on counsel was irrelevant
to the issues in the case.” Tourre, 950 F.Supp.2d at 683. The Government requests a similar
ruling here, precluding the defendant from offering evidence or argument designed to emphasize
the involvement of lawyers, unless and until the defense makes a factual proffer sufficient to
support an actual advice of counsel defense.

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CONCLUSION
For the reasons discussed above, the Government respectfully requests that its motion be
granted.
Dated:

December 9, 2019
New York, New York
Respectfully submitted,
GEOFFREY S. BERMAN
United States Attorney
Southern District of New York
DEBORAH CONNOR
Chief, Money Laundering and
Asset Recovery Section
Criminal Division
By:

56

_/s Thane Rehn_____________________
Eun Young Choi and Thane Rehn
Assistant United States Attorneys
Michael Parker and Parker Tobin
Trial Attorneys, Criminal Division