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1
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RESPONSE OF US TO MOTION OF DEFENDANT WEIL FOR RELEASE ON BAIL PENDING APPEAL
|
EXTRACTED KEY WORDS
WEIL UNITED STATES COURT CIR SUBSTANTIATE BAIL REFORM ACT GIANCOLA CIRCUIT EVIDENCE MOTION AGREEMENT JURY INDICTMENT LAW MCCONNELL INTERSTATE COMMERCE CONSPIRACY CONVICTION SEA RANCH GOVERNMENT INSTRUCTIONS TESTIMONY PROSECUTOR BUSINESS RECORDS BRADY VIOLATION SEA RANCH MEETING BUSINESS ACTIVITIES PREJUDICE FOREIGN COMMERCE |
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA )
) Case No. 97-0853-CR-Middlebrooks
v. )
)
ATLAS IRON PROCESSORS, INC., )
et al., ) RESPONSE OF THE UNITED STATES
) TO MOTION OF DEFENDANT WEIL
Defendants. ) FOR RELEASE ON BAIL PENDING APPEAL
The United States submits this Memorandum in response to the Motion of Defendant
Weil for Release on Bail Pending Appeal. For the reasons provided below, this Court should
deny the Weil's motion.
I
BOND PENDING APPEAL IS DISCOURAGED BY LAW
The Bail Reform Act of 1984, 18 U.S.C. § 3143(b) (1998), governs the release of
defendants on bond pending appeal. The Bail Reform Act requires that (1) the appeal raise a
"substantial question of law or fact" and (2) "if that substantial question is determined favorably
to the defendant on appeal, that decision is likely to result in reversal or an order for a new
on all counts on which imprisonment has been imposed." United States v. Giancola, 754 F.2d
898, 900 (11th Cir. 1985). In Giancola, the Eleventh Circuit adopted the Third Circuit's
interpretation of the Bail Reform Act set forth in United States v. Miller, 753 F.2d 19 (3rd Cir.
1985). The Eleventh Circuit explained that the Third Circuit's interpretation of the 1984 Bail
Reform Act achieved Congress' intent to limit the availability of bail pending appeal and to
reverse the previous presumption in favor of bail. Giancola, 754 F.2d at 900. The Eleventh
Circuit stressed the Bail Reform Act "was intended to change the presumption so that the
conviction is presumed correct and the burden is on the convicted defendant to overcome that
presumption." Id. at 900, 901 (internal citations omitted).
With respect to the Bail Reform Act's first requirement, that the appeal raise a substantial
question of law or fact, Miller defined a substantial question as "one which is either novel . . .
not been decided by controlling precedent, or . . . is fairly doubtful." Miller, 753 F.2d at 23.
Eleventh Circuit observed, however, that an issue without controlling precedent may nonetheless
be an insubstantial question.1 Giancola tightened the Miller standard in yet another way, holding
that "a substantial question is one of more substance than would be necessary to a finding that it
was not frivolous. It is a `close' question or one that very well could be decided the other way."
Giancola, 754 F.2d at 901.
With respect to the Bail Reform Act's second requirement, that a decision is likely to
result in reversal or an order for a new trial of all counts, Giancola held that it goes to the
"significance of the substantial issue to the ultimate disposition of the appeal." Giancola, 754
F.2d at 900. A question may be substantial yet harmless, having nonprejudicial effect, or
insufficiently preserved. Id. A reversal or new trial is "likely" only if a court concludes the
question is "so integral to the merits of the conviction" that an appellate holding to the contrary
SNIPPETS:
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2
.
RESPONSE OF US TO MOTION OF DEFENDANT RANDOLPH WEIL TO STRIKE NOTICE OF FILING
|
EXTRACTED KEY WORDS
UNITED STATES ACTS EVIDENCE WEIL CONSPIRACY DEFENDANT CHARGES COURT MEETING ADMISSION JURY CIR CRIME INDICTMENT EVID GIORDANO MOTION INTENDS REASONS MIAMI ANTHONY ATLAS PREJUDICE HUDDLESTON LUNTZ ALLOCATING SUPPLIERS CONSISTS AGREEMENT WITNESS SUBSTANCE |
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA ) CASE NO. 97-0853-CR-NESBITT
)
v. )
)
ATLAS IRON PROCESSORS, INC., )
et al., ) Magistrate Judge Robert L. Dub
) (May 7, 1998, Amended Order of Reference)
Defendants. )
) RESPONSE OF UNITED STATES
) TO MOTION OF DEFENDANT
) RANDOLPH WEIL TO STRIKE
) NOTICE OF FILING
) SUPPLEMENTAL NOTICE OF
) EVIDENCE THE UNITED STATES
) INTENDS TO INTRODUCE UNDER
) FED. R. EVID. 404(b), AND
) RESPONSE IN OPPOSITION TO
) SUPPLEMENTAL NOTICE
I
INTRODUCTION
Defendant Randolph J. Weil's ("Weil") Motion to Strike Notice of Filing Supplemental
Notice of Evidence the United States Intends to Introduce Under Fed. R. Evid. 404(b), seeks to
prevent the United States from introducing newly-discovered other acts evidence pursuant to Federal
Rule of Evidence 404(b). Weil makes four arguments. First, the evidence is insufficiently precise
him to investigate. Second, the United States did not mention the evidence at the hearing on
9, 1998. Third, the evidence is not admissible as a co-conspirator's statement under Fed. R. Evid.
801(d)(2)(E). Fourth, the evidence does not complete the background of the conspiracy. For reasons
stated below, Weil's motion is misplaced and should be denied.
II
FACTS
The Indictment charges that Weil and his co-conspirators "entered into and engaged in a
combination and conspiracy to suppress and restrain competition by fixing the price of scrap metal,
allocating suppliers of scrap metal, in Southern Florida." Indictment, ¶ 2. The Indictment
conspiracy "[b]eginning at least as early as October 24, 1992, and continuing at least until
23, 1992, the exact dates being unknown to the Grand Jury." Indictment, ¶ 2. The United States'
of particulars specifies the conspiracy continued into January 1993. The conspiracy consisted of a
continuing agreement: (1) "to fix and maintain prices paid for scrap metal;" (2) "to coordinate
decreases for the purchase of scrap metal;" and (3) "to allocate suppliers of scrap." Indictment,
The methods by which the co-conspirators formed and carried out the conspiracy are described in
Paragraph 4 of the Indictment. Indictment, ¶ 4.
SNIPPETS:
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3
.
RESPONSE OF US TO DEFENDANTS JOINT MOTION FOR BOND PENDING APPEAL
|
EXTRACTED KEY WORDS
SENTENCING COURT UNITED STATES JOINT MOTION COMMERCE PRICE BAIL RAISE CONSPIRACY RENEWED JOINT MOTION GIANCOLA CIRCUIT FIXED PRICE SKW METALS GUIDELINES SUBSTANTIAL QUESTION HAYTER OIL AGREEMENT REASONS DISTRICT COURT BAIL REFORM SALES CALCULATING SERVE BAIL REFORM ACT REVERSE MARKET PURCHASES AGREED-UPON |
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA )
) Case No. 97-0853-CR-Middlebrooks
v. )
)
ATLAS IRON PROCESSORS, INC., )
et. al., ) RESPONSE OF THE
) UNITED STATES TO
Defendants. ) DEFENDANTS' RENEWED
) JOINT MOTION
) FOR BOND PENDING APPEAL
I
INTRODUCTION
The United States submits this Memorandum opposing the Defendants'
Renewed Joint Motion for Bond Pending Appeal, submitted on behalf of defendants
Anthony J. Giordano, Sr., Anthony J. Giordano, Jr. and David Giordano.
To put this pleading in perspective, a brief review of recent events in this case
is helpful. On July 30, 1999, this Court sentenced Anthony J. Giordano, Sr.,
Anthony J. Giordano, Jr. and David Giordano (the "Giordano defendants") for their
roles in this criminal case. Also, on July 30, 1999, the Giordano defendants filed
their initial Joint Motion for Bond Pending Appeal. On August 31, 1999, this Court
denied the Giordano defendants' initial Joint Motion, issuing its Order Denying
Defendant's Joint Motion for Release on Bail Pending Appeal. On September 3,
1999, the Giordano defendants filed the Renewed Joint Motion for Bond Pending
Appeal at issue here.
For the reasons provided below, this Court should deny the Giordano
defendants' renewed motion for bond pending appeal.
II
THE GIORDANO DEFENDANTS
HAVE WAIVED THEIR RIGHT TO RAISE THIS ISSUE
The sole issue the Giordano defendants raise in their Renewed Joint Motion
involves their belief that this Court incorrectly calculated the volume of commerce
attributable to them under U.S.S.G. §2R1.1. Their initial Joint Motion did not
raise this -- or any other -- sentencing issue. In their Renewed Joint Motion the
defendants account for their failure to raise this issue earlier by glibly noting their
initial Joint Motion "was drafted prior to sentencing." While this may serve as an
explanation for the omission, it is not an acceptable excuse. By failing to raise this
issue earlier, the Giordano defendants have waived their right to raise it now.
The defendants' explanation rings especially hollow given the conduct of their
co-defendant. In his Motion of Defendant Weil for Release on Bail Pending Appeal,
Randy Weil drafted a motion that raised sentencing issues. Specifically, Weil
argued the Court erred in granting him an upward adjustment for his role in the
criminal conduct.1 Weil raised both issues in a single motion. Surely the Giordano
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4
.
RESPONSE OF UNITED STATES TO STANDING DISCOVERY ORDER CONCERNING DEFENDANT SUNSHINE
|
EXTRACTED KEY WORDS
SUNSHINE DISCOVERY FEDERAL RULES PURSUANT MATERIALS CRIMINAL PROCEDURE COUNSEL RESPONSE DEFENDANTS STANDING DISCOVERY ORDER EVIDENCE ARRAIGN PROTECTIVE ORDER SUBSTANCE GOVERNMENT AGENT UNITED STATES INTENDS DISCLOSE DEFENSE INSPECTION BRADY AGURS GIGLIO NAPUE UNDERSIGNED COUNSEL REPRESENTATION HONORABLE JUDGE GRAND JURY MOTION |
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA )
) CASE NO. 97-0853-CR-NESBITT
v. )
) Magistrate Judge Robert L. Dub
) (Order of Reference dated February 11,
ATLAS IRON PROCESSORS, INC.; ) 1998)
et al. )
) RESPONSE OF UNITED STATES
Defendants. ) TO STANDING DISCOVERY
) ORDER CONCERNING
) DEFENDANT SUNSHINE
) METAL PROCESSING, INC.
The United States of America ("United States"), by and through the undersigned
counsel, files this discovery response for defendant Sunshine Metal Processing, Inc.
("Sunshine"). This discovery response is consistent with the Standing Discovery Order
issued in this criminal case for the other defendants on or about December 2, 1997, and is
numbered to correspond to that discovery order.1
1 On or about December 15, 1997, the United States filed its responses to the
Standing Discovery Order issued on December 2, 1997, for all of the defendants in this
criminal case except Sunshine. A discovery response for Sunshine was not filed at this
time because Sunshine had not yet been arraigned. Although all of the defendants
except Sunshine were arraigned on December 2, 1997, Sunshine was not arraigned due
to issues concerning its representation in this criminal case. Thereafter, several
attempts to arraign Sunshine proved unsuccessful, due to scheduling conflicts and
persisting issues concerning Sunshine's representation. At the time, Sunshine was a
debtor-in-possession pursuant to a voluntary Chapter 11 bankruptcy proceeding.
Finally, during the Calendar Call before the Honorable Judge Nesbitt on February 11,
1998, Sunshine was arraigned. The issue of who was going to represent Sunshine
permanently in this criminal case, however, remained unsettled until a provisional
A. 1. The United States will produce, pursuant to Rule 16 and
subject to the protective order entered May 26, 1998, any
written or recorded statements by made by Sunshine covered
under Fed. R. Crim. P. 16. The United States believes these
statements are primarily in the form of statements made by
counsel regarding compliance with grand jury subpoenas.
2. The United States will produce, pursuant to Rule 16 and
SNIPPETS:
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5
.
NOTICE OF FILING JOINT DISCOVERY RECORDS
|
EXTRACTED KEY WORDS
DEFENDANTS ANTHONY UNITED STATES DAVID GIORDANO STIPULATIONS ATTORNEY FLORIDA BAR PURSUANT LOCAL RULE ATLAS IRON PROCESSORS DAVID GIORDANO HEREBY DISCOVERY RECORDS WRITTEN STIPULATIONS DRAFT STIPULATIONS ROBERTO JOSEFSBERG ESQ |
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA ) Case No. 97-0853-CR-Middlebrooks
)
v. )
)
ATLAS IRON PROCESSORS, INC., )
et al., ) Magistrate Judge Robert L. Dub
) (May 7, 1998, Amended Order of
Defendants. )
) NOTICE OF FILING JOINT
) DISCOVERY RECORDS OF
) THE UNITED STATES AND THE
) ATLAS DEFENDANTS AND RECORD
) OF STIPULATIONS
Pursuant to Local Rule 88.10 P, the United States and the defendants, Atlas Iron
Processors, Inc., Anthony J. Giordano Sr., Anthony J. Giordano, Jr. and David Giordano hereby
submit the attached discovery records.
The United States and the defendants have been unable to agree upon any written
stipulations. Draft stipulations have been exchanged.
JOHN F. McCAFFREY, ESQ. RICHARD T. HAMILTON, JR.
Ohio Bar No. 0039486 Court I.D. No. A5500338
Attorney for Defendant
Atlas Iron Processors, Inc. PAUL L. BINDER
Court I.D. No. A5500339
RALPH E. CASCARILLA, ESQ. IAN D. HOFFMAN
Ohio Bar No. 13526 Court I.D. No. A5500343
Florida Bar No. 0315303
Attorney for Defendant Trial Attorneys,
Anthony J. Giordano, Jr. U.S. Department of Justice
Antitrust Division
Plaza 9 Building
SNIPPETS:
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6
.
NOTICE FOR ENHANCEMENT OF SENTENCE
|
EXTRACTED KEY WORDS
GIORDANO SEEKING ENHANCEMENT DEFENDANT ANTHONY OFFENSE PURSUANT DISTRICT DAVID RANDOLPH WEIL FOUR-LEVEL ENHANCEMENT ORGANIZER THREE-LEVEL ENHANCEMENT MANAGER SUPERVISOR STATES DISTRICT COURT SOUTHERN DISTRICT FLORIDA UNITED STATES HEREBY MANNER CLEVELAND FIELD OFFICE |
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA )
) Case No. 97-0853-CR-Middlebrooks
v. )
)
ATLAS IRON PROCESSORS, INC., )
et al., )
)
Defendants. ) NOTICE FOR ENHANCEMENT
) OF SENTENCE
The United States hereby provides notice that it is seeking an enhancement
of sentence for the defendants Anthony J. Giordano, Jr., Anthony J. Giordano, Sr.,
David Giordano and Randolph J. Weil in the following manner:
1. The United States is seeking a four-level enhancement for defendant
Anthony J. Giordano, Jr., based upon his role as an organizer and leader in the
offense pursuant to §3B1.1(a).
2. The United States is seeking a three-level enhancement for defendant
Anthony J. Giordano, Sr., based upon his role as a manager and supervisor in the
offense pursuant to §3B1.1(b).
3. The United States is seeking a three-level enhancement for defendant David
Giordano, based upon his role as a manager and supervisor in the offense pursuant
to §3B1.1(b).
4. The United States is seeking a four-level enhancement for defendant
Randolph J. Weil, based upon his role as an organizer and leader in the offense
pursuant to §3B1.1(a).
SNIPPETS:
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7
.
MOTION TO FILE RESPONSE OF US TO MOTION OF DEFENDANT WEIL FOR RELEASE ON BAIL PENDING APPEAL
|
EXTRACTED KEY WORDS
ENLARGED RESPONSE UNITED STATES INSTANTER WEIL PENDING COURT SUBPARTS DEFENDANT WEIL LOCAL RULES SOUTHERN DISTRICT FLORIDA LIMIT PRIOR PARAGRAPH RAISE REGARDLESS MERITS FACTUAL QUESTIONS CONSIDERED RESPONSE ALLEGATIONS PURPOSE WASTE AID STATES RESPECTFULLY REQUESTS COURT GRANT CLEVELAND FIELD OFFICE |
UNITED STATES OF AMERICA
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA ) Case No. 97-0853-CR-Middlebrooks
)
v. )
)
ATLAS IRON PROCESSORS, INC. )
et al., )
) MOTION FOR LEAVE
Defendants. ) INSTANTER ENLARGED
) OF THE UNITED
) OF DEFENDANT WEIL
) RELEASE ON BAIL
The United States files the within Motion For Leave to File Instanter Enlarged Response
of the United States to Motion of Defendant Weil for Release on Bail Pending Appeal. The local
rules of the Southern District of Florida limit a Response to twenty pages, without prior leave of
the Court. In this case, there is good cause shown for the enlarged Response.
It takes only a paragraph or two to raise an issue. To respond to an issue, however,
takes many pages, regardless of the issue's merits. Weil raises eight issues in the instant motion.
Some of the issues have subparts. Many of the issues and their subparts involve detailed legal
and factual questions even though it is ultimately clear how they should be resolved. To offer a
considered response to the each of Weil's allegations takes more than twenty pages.
In short, the purpose of the enlarged Response is not to waste the Court's time, but to
it in deciding the pending motion.
Accordingly, the United States respectfully requests that this Court grant the within
Motion.
Respectfully
WILLIAM J. OBERDICK By: RICHARD T.
Acting Chief Court I.D. No.
Cleveland Field Office
PAUL L. BINDER
Court I.D. No.
IAN D. HOFFMAN
Court I.D. No.
Trial
U.S.
Antitrust
Plaza 9
55 Erieview
SNIPPETS:
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8
.
MOTION OF US REQUESTING ADVANCE NOTICE OF FIRM TRIAL DATE
|
EXTRACTED KEY WORDS
MIAMI MOTION COURT SCHEDULE REQUEST CALENDAR SUBSTANTIVE MOTIONS PARTIES CONFERENCE DEFENDANTS SUNSHINE MATTER DISTRICT PREPARATION ACCOMMODATE CLEVELAND INSTALLATION EQUIPMENT SHIP EVIDENCE LODGING SUPPORT NECESSITATE INTENDS COUNSEL PROSECUTORS GOVERNMENT LOGISTICAL NEEDS EXPENSE |
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA )) CASE NO. 97-0853-CR-NESBITT
v. )
)
ATLAS IRON PROCESSORS, INC., ) MOTION OF THE UNITED
et al., ) REQUESTING ADVANCE
) OF A FIRM TRIAL DATE
)
Defendants. )
I
INTRODUCTION
The United States has received the Scheduling Order For Jury Trial And Calendar Call,
January 19, 1998, and signed by the Honorable Judge Lenore C. Nesbitt. (Hereafter referred to as
"Order") This Order sets the above-captioned criminal case for trial for the two-week period
February 9, 1998. This Order provides further that counsel shall report to a call of the calendar
p.m. on February 9, 1998. To date, there have been no pre-trial conferences, nor has there been any
substantive motion practice. No time has run under the Speedy Trial Act because one of the
Sunshine Metal Processing, Inc. ("Sunshine") has not yet been arraigned. The United States
conservatively, that the trial in this matter will last two weeks.
The prosecutors for the United States Department of Justice, Antitrust Division
States") have conferred with the U.S. Attorney's Office in the Southern District of Florida to
import of this Order, including the possibility that this case may be tried during the two-week
schedule beginning February 9, 1998. In substance, we were told that, although the likelihood of
forward with a trial in this matter within the two-week calendar schedule spelled out in the Order
small, the government nevertheless should be prepared to go forward with its case within this
period.
SNIPPETS:
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9
.
DEMAND OF NOTICE OF INTENTION TO OFFER DEFENSE OF ALIBI-2
|
EXTRACTED KEY WORDS
MEETING PURSUANT FEDERAL RULE CRIMINAL PROCEDURE HENRY KOVINSKY RANDY WEIL FLORIDA DEMAND ALIBI RESTAURANT ACTS DEFENSE INTEND CAFE POMPANO BEACH FURTHERANCE SHERMAN ACT CONSPIRACY INDICTMENT FURNISH ATTORNEYS JUSTICE ANTITRUST DIVISION WRITTEN NOTICE INTENTION DISCLOSE LISTED MEETINGS WITNESSES CLEVELAND FIELD OFFICE |
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA )
) CASE NO. 97-0853-CR-NESBITT
v. )
) DEMAND OF NOTICE
ATLAS IRON PROCESSORS, INC., ) PURSUANT TO RULE 12.1
et al., ) OF DEFENDANT
) ANTHONY J. GIORDANO, SR.'S
Defendants. ) INTENTION TO OFFER
) DEFENSE OF ALIBI
Pursuant to Federal Rule of Criminal Procedure 12.1, you are hereby informed that you
with Henry "Skip" Kovinsky, Randy Weil, Anthony Giordano, Jr., and David Giordano on October
14, 1992, at La Costa D'Oro restaurant in Boca Raton, Florida. This meeting took place in the
evening, beginning around 8:00 p.m.
Pursuant to Federal Rule of Criminal Procedure 12.1, you are also hereby informed
met with Sheila McConnell, Henry "Skip" Kovinsky, Randy Weil, and Anthony Giordano, Jr., on
October 24, 1992, at the Sea Ranch condominium complex in Fort Lauderdale, Florida. This meeting
took place in the morning and lasted until about noon.
Pursuant to Federal Rule of Criminal Procedure 12.1, you are also hereby informed
met with Henry "Skip" Kovinsky, Randy Weil, and Anthony Giordano, Jr., on December 21, 1992, at
Cafe Max restaurant in Pompano Beach, Florida. This meeting took place in the early evening,
beginning about 7:00 p.m.
These meetings constitute a partial list of the acts performed by Anthony Giordano, Sr., in
furtherance of the Sherman Act conspiracy charged in the Indictment that began at least as early as
October 24, 1992, and continued until at least November 23, 1992. Demand is hereby made upon
SNIPPETS:
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10
.
BRIEF APPELLEE
|
EXTRACTED KEY WORDS
APPELLANTS GIORDANO COURT DISTRICT ATLAS WEIL ANTHONY PRICES COUNSEL CIR MCCONNELL EVIDENCE SCRAP DEFENDANTS AGREEMENT DAVID GIORDANO INDICTMENT GOVERNMENT CONSPIRACY TESTIMONY APPEALS ATLAS IRON SEA RANCH SHERMAN ACT DISCRETION ATLAS IRON PROCESSING POLYGRAPH PRICE FIXING INTERSTATE |
No. 99-12788-G
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY J. GIORDANO, SR., ANTHONY J. GIORDANO, JR.,
RANDOLPH J. WEIL, ATLAS IRON PROCESSING INC., DAVID
GIORDANO,
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
BRIEF FOR THE APPELLEE
JOEL I. KLEIN
Assistant Attorney General
A. DOUGLAS MELAMED
Deputy Assistant Attorney
Of Counsel:
JOHN J. POWERS, III
RICHARD T. HAMILTON, JR. ROBERT B. NICHOLSON
PAUL L. BINDER CHRISTOPHER SPRIGMAN
IAN D. HOFFMAN Attorneys
Attorneys U.S. Department of Justice
U.S. Department of Justice 601 D Street, N.W.
55 Erieview Plaza, Suite 700 Washington, D.C. 20530
Cleveland, Ohio 44114-1816 (202) 353-8629
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
SNIPPETS:
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11
.
US TRIAL BRIEF
|
EXTRACTED KEY WORDS
WITNESS CONSPIRACY TESTIMONY AGREEMENT CONSPIRATORS GOVERNMENT UNITED STATES CIR TESTIFY UNDERSTANDING CHARGED CONSPIRACY ADMISSIBILITY DEFENDANT AUTHENTICITY COURT INDICTMENT DIRECT EXAMINATION BUSINESS RECORDS SHERMAN ACT WITNESSES FEDERAL RULE INTERSTATE COMMERCE CROSS-EXAMINATION CO-CONSPIRATOR PARTICIPATION PERSONAL KNOWLEDGE FURTHERANCE ANTITRUST DISCRETION |
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
UNITED STATES OF AMERICA )
) CASE NO. 97-0853-CR-MIDDLEBROOKS
v. )
) Judge Donald M. Middlebrooks
ATLAS IRON PROCESSORS, INC., )
et al., )
) GOVERNMENT'S TRIAL BRIEF
Defendants. )
Table Of Contents
I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. Law Applicable To The Offense
A. The Elements Of The Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. The Agreement Is The Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Specific Intent Need Not Be Proved . . . . . . . . . . . . . . . . . . . . . . . . .
D. Per Se Unlawful Agreement Need Not Be Explicit Or Formal . . . . . . . . . .
E. The Evidence Need Not Show That All The Means Or
Methods Charged In The Indictment Were Agreed Upon . . . . . . . . . . . . . .
F. The Government May Prove A Narrower Conspiracy Than Alleged . . . . .
G. Proof Of Interstate Commerce . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. Evidentiary Issues - Witness Testimony
A. Indefiniteness Of Recollection Is No Impediment To Testimony . . . . . . .
B. A Witness May Testify To The Meaning Of Terms Used By Conspirators
And His or Her Understanding Of Their Statements . . . . . . . . . . . . . . . . 17
C. A Witness May Testify About Whether An Agreement
Or Understanding Was Reached By The Conspirators . . . . . . . . . . . . . . .
D. This Court Has The Discretion To Limit Cross-Examination . . . . . . . . . .
SNIPPETS:
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12
.
MOTION THAT CLERICAL ERRORS IN DEFENDANTS SENTENCING ORDERS BE CORRECTED
|
EXTRACTED KEY WORDS
DEFENDANTS COURT UNITED STATES CONSPIRACY CLERICAL ERRORS SENTENCING TRANSCRIPT COMMITTAL ORDER JUDGEMENT AMOUNT SUNSHINE STATES RESPECTFULLY REQUESTS MARKET COMMERCE GIORDANO PRICING MIAMI CRIM RESTITUTION GUIDELINE WEIL ANTHONY FOREGOING CERTIFICATE DISTRICT PURSUANT CLERICAL MISTAKES PAID JUDGEMENT INDICTMENT |
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA )
) Case No. 97-0853-CR-Middlebrooks
v. )
)
ATLAS IRON PROCESSORS, INC., ) MOTION OF THE UNITED STATES
et al., ) AND ACCOMPANYING BRIEF
) REQUESTING THAT CLERICAL
Defendants. ) ERRORS IN THE DEFENDANTS'
) SENTENCING ORDERS
) BE CORRECTED
) PURSUANT TO FED. R. CRIM. P. 36
I
INTRODUCTION
Pursuant to Fed. R. Crim. P. 36, the United States moves this Court for an
order correcting two clerical mistakes in the Judgement and Committal Orders
sentencing the defendants in this criminal case. Rule 36 provides as follows:
Clerical mistakes in judgements, orders or other parts of
the record and errors in the record arising from oversight
or omission may be corrected by the court at any time and
after such notice, if any, as the court orders.
Fed. R. Crim. P. 36.
There are two clerical errors in the Judgement and Committal Orders
sentencing the defendants. The United States waited until it could review the
sentencing transcript before bringing this matter to the Court's attention. The
sentencing transcript was only recently received. The United States is raising these
issues now so that the record can be corrected (and be made clear) before this case is
transferred to the Eleventh Circuit.
Below, the United States discusses the clerical erors and provides the support
for their being corrected.
II
FACTS AND LEGAL ARGUMENT
The first clerical error concerns the restitution amount to be paid by Sunshine
Metal Processing, Inc. ("Sunshine"). On page 3 of Sunshine's Judgment and
Committal Order, the sentencing order correctly provides that the amount of
restitution ordered is $74,009.42. Judgement and Committal Order, Sunshine
(Attachment I). See also Sentencing Transcript, p. 201. Page 5 of Sunshine's
1
sentencing order, however, incorrectly provides that the amount of restitution to be
paid is $7,400,942.00. See Attachment I. The United States respectfully requests
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13
.
US MEMO REGARDING SUNSHINES WAIVER OF 6TH AMENDMENT RIGHT TO COUNSEL
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EXTRACTED KEY WORDS
SUNSHINE CORPORATIONS UNITED STATES DEFENDANTS APPOINTMENT ESTATE COURT NURIK DISTRICT JUDGE MARK NURIK BANKRUPTCY EXHIBIT TRUSTEE TERZO FLORIDA COURT-APPOINTED COUNSEL REPRESENTATION CRIMINAL JUSTICE ACT OPINION CREDITORS JURY CIR CONSTITUTION STATUTE CONTEXT MONITOR PLEA AUTHORITY |
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA ) Case No. 97-0853-CR-Middlebrooks
)
v. )
)
ATLAS IRON PROCESSORS, INC., )
et al., ) Magistrate Judge Robert L. Dub
) (May 7, 1998, Amended Order of Reference)
Defendants. )
) UNITED STATES MEMORANDUM
) REGARDING SUNSHINE'S WAIVER
) OF ITS SIXTH AMENDMENT
) RIGHT TO COUNSEL AND
) A CORPORATION'S
) LACK OF ENTITLEMENT
) TO COURT-APPOINTED COUNSEL
I. INTRODUCTION
At trial on February 5, 1999, the defendants raised the issue of whether
Sunshine Metal Processing, Inc. (Sunshine) is on trial in the above-captioned case.
After reviewing a transcript of a hearing before Judge Lenore Nesbitt, the Court
concluded that Sunshine was arraigned at a hearing in front of Judge Nesbitt. The
Court then raised the issue of whether Sunshine should be appointed counsel. The
Court raised the issue due to Judge Nesbitt's suggestion that Sunshine might be
entitled to court-appointed counsel if the corporation could not afford to represent
itself. This memorandum concludes Sunshine has waived its right to be represented
at this trial and that as an indigent corporation Sunshine is not entitled to court-
appointed representation.
II. FACTS
On February 20, 1998, Judge Nesbitt ordered attorney Mark Nurik to file a
motion in the bankruptcy court to seeking clarification as to whether it was in the
best interests of the Sunshine estate to have criminal counsel represent it in the
above-captioned case. See Exhibit 1. On April 16, 1998, Sunshine estate Trustee
Jams P. Feltman filed an emergency motion to employ Mark Nurik as criminal
defense counsel in this case. See Exhibit 2. On April 24, 1998, United States
Bankruptcy Judge Robert A. Mark granted the Emergency Motion. See Exhibit 3.
Nurik was directed to continue "monitoring the criminal proceedings transferred by
the Department of Justice to the Federal District Court, Southern District of
Florida." Id. at 3. Nurik continued to monitor the case on behalf of the estate and
on November 23, 1998, Nurik filed a Summary of Interim Fee Application with the
United States Bankruptcy Court in the Southern District of Florida for the period of
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CRIMINAL SENTENCES IMPOSED
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