pretrial memo

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

v. : CRIMINAL NO. 14-412-01-06

THOMAS LICIARDELLO :

BRIAN REYNOLDS

MICHAEL SPICER :

PERRY BETTS

LINWOOD NORMAN :

JOHN SPEISER

GOVERNMENT

S TRIAL MEMORANDUM AND TRIAL MOTIONS

The United States of America, by its attorneys, Zane David Memeger, United

States Attorney for the Eastern District of Pennsylvania, and Anthony J. Wzorek and Maureen

McCartney, Assistant United States Attorneys, hereby submits the following trial memorandum

and trial motions in the above captioned case.

I. The Indictment

On July 29, 2014, a federal grand jury returned an indictment charging all the

defendants with RICO conspiracy, in violation of 18 U.S.C. § 1962(d); and certain defendants

with conspiracy to deprive of civil rights, in violation of 18 U.S.C. § 241; deprivation of civil

rights, in violation of 18 U.S.C. § 242; robbery which interferes with interstate commerce, in

violation of 18 U.S.C. § 1951(a), (b)(1); extortion which interferes with interstate commerce, in

violation of 18 U.S.C. § 1951(a), (b)(2); carrying a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c)(1); possession with intent to distribute over 500

grams of cocaine, in violation of 21 U.S.C. § 841; and falsification of records in a federal

investigation, in violation of 18 U.S.C. § 1519. These charges arise out of the defendants’

actions while conducting searches and seizures and making arrests of alleged drug dealers.

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While acting under color of law, and while armed, the defendants stole money, drugs and

personal items from the arrestees, distributed drugs, physically abused some of the arrestees, and

falsified police records to cover up their actions.

A list of potential government witnesses is attached to this memorandum as

Exhibit A.

The lawyers listed in Exhibit A originally represented the victims after their

arrests for narcotics violations. They will be called to testify that the victims gave them

statements, soon after their arrests, consistent with their expected trial testimony, to rebut any

claim of recent fabrication.

In addition to the testimony of fact witnesses, the government may present:

a. text messages between defendant Liciardello and cooperating

witness Jeffrey Walker from March 13, 2013;

b. a consensually recorded conversation made by an undercover FBI

agent with defendants Liciardello and Reynolds on April 10, 2012 during an attempted drug

sting;

c. a videotape of an illegal search being conducted by Officers

Liciardello and Speiser on April 10, 2012.

d. portions of a post-arrest recorded statement of defendant Linwood

Norman from July 30, 2014;

e. documentary records including Philadelphia Police Department

paperwork, telephone records, bank records, casino records, records of international travel, credit

card records, mortgage payments, medical and dental records, school tuition payment records,

FEMA records, gun registration records, and other business records.

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The government estimates that this case will take approximately eight weeks.

II. Elements of the Offenses

A. RICO Conspiracy

Title 18, United States Code, Section 1962(c), reads as follows:

(c) It shall be unlawful for any person employed by or associatedwith any enterprise engaged in, or the activities of which affect,interstate or foreign commerce, to conduct or participate, directlyor indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

Title 18, United States Code, Section 1962(d), provides: “It shall be unlawful for

any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this

section.”

In order to prove a violation of Title 18, United States Code, Section 1962(c), the

government must prove the following elements:

(1) The enterprise affected interstate or foreign commerce;

(2) The defendant was employed by or was associated with theenterprise;

(3) The defendant participated, either directly or indirectly, in theaffairs of the enterprise; and

(4) The defendant participated in the affairs of the enterprise, througha pattern of racketeering activity, as described in the indictment,through the knowing [and willful or deliberate] commission of atleast two racketeering acts within ten years of each other, or by thecollection of an unlawful debt.

In order to sustain a conviction under section 1962(d), the government must prove the

following four elements:

(1) That an enterprise existed as charged in the Indictment;

(2) That the enterprise affected interstate or foreign commerce;

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(3) That the defendant was associated with or employed by the enterprise;and

(4) That the defendant knowingly and willfully agreed that a conspiratorwould commit at least two racketeering acts.

To convict the defendant on the charged RICO conspiracy offense, the government is

not required to prove that the alleged enterprise was actually established, that the defendant was

actually employed by or associated with the enterprise, or that the enterprise was actually engaged

in, or its activities actually affected, interstate or foreign commerce. Rather, because the agreement

to commit a RICO offense is the essence of a RICO conspiracy offense, the government need only

prove that if the conspiracy offense were completed as contemplated, the enterprise would be

established, that the defendant would be employed by or associated with the enterprise, and that the

enterprise would be engaged in, or its activities would affect, interstate or foreign commerce. Smith

v. Berg, 247 F.3d 532, 537-38 (3d Cir. 2001)(emphasis added).

1. Existence of an enterprise

The term "enterprise# under section 1961 is defined to include "any individual,

partnership, corporation, association, or other legal entity, and any union or group of individuals

associated in fact although not a legal entity.# 18 U.S.C. $ 1961(4). A wholly illegal organization

may be an enterprise for RICO purposes. United States v. Turkette, 452 U.S. 576 (1981). In fact,

the Supreme Court has described an enterprise as "a group of persons associated together for a

common purpose of engaging in a course of conduct.# Id. at 583. The existence of an enterprise is

proved by evidence of "an ongoing organization, formal or informal, and by evidence that the

various associates function as a continuing unit.# Id.

Accordingly, to establish the existence of an enterprise, the government essentially

must prove a group of people characterized by: 1) a common purpose; 2) an ongoing formal or

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informal organization; 3) by members who function as a continuing unit. See United States v.

Tillett, 763 F.2d 628, 631 (4th Cir. 1985) (the government must establish " both a continuity of

structure and personality within the organization ...# and that the "association exist[ed] separate and

apart from the pattern of racketeering activity in which it engage[d]); see also United States v.

Griffin, 660 F.2d 996, 1000 (4th Cir. 1981) ("Proof of the existence of an associated-in-fact

enterprise requires proof of the %common purpose! animating its associates, and this may be done by

evidence of an %ongoing organization, formal or informal,! of those associates in which they

function as a continuing unit#).1

In this case, the enterprise is a group of individuals associated in fact, who used their

positions within the Philadelphia Police Department’s Narcotics Field Unit to commit racketeering

acts. The enterprise had assigned members, a formal and informal leadership structure, and set

rules. The enterprise constituted an ongoing organization whose members functioned as a

continuing unit for the common purpose of achieving the objectives of the enterprise, namely to

illegally obtain money and narcotics not rightfully due them through a pattern of robbery. The

purpose of the enterprise includes, but was not limited to, enriching the members and associates of

the enterprise through illegal conduct.

The enterprise (1) conducted traffic stops of vehicles driven or occupied by persons

suspected of being engaged in criminal activity and robbed such persons of money, drugs, and

property; (2) entered premises used or occupied by persons suspected of being engaged in criminal

activity and stole money and property; and (3) shared proceeds illegally obtained from individuals

and premises.

1 The enterprise!s existence may be inferred from the evidence showing the associatesengaged in a pattern of racketeering. Boyle v. United States, No. 07-1309 (U.S. June 8, 2009);United States v. Riccobene, 709 F.2d 214, 222-24 (3d Cir.1983).

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2. Enterprise engaged in or had an effect upon interstate commerce

Although evidence that the racketeering acts affected interstate or foreign commerce

may satisfy this element, such a showing is unnecessary as long as the activities of the enterprise

affected interstate or foreign commerce. United States v. Altomare, 625 F.2d 5, 8 n.8 (4th Cir.

1981) ("the Government need not demonstrate that the alleged acts of racketeering themselves

directly involved interstate commerce.# In addition, courts have held that the effect on interstate or

foreign commerce need only be de minimis. United States v. Allen, 656 F.2d 964 (4th Cir. 1981)

(evidence that supplies used by the enterprise originated outside of Maryland provided sufficient

nexus).

The positions of the defendants within the Narcotics Field Unit gave them authority

to enforce the narcotics laws. Interference with a drug dealer’s business is a violation of the Hobbs

Act because of the interstate character of drug dealing. See United States v. Cox, 942 F.2d 1282,

1286 (8th Cir. 1991): United States v. Bernard, 47 F.3d 1101, 1102-03 (11th Cir. 1995); United

States v. Ambrose, 740 F.2d 505, 511-12 (7th Cir. 1984)(Hobbs Act properly applied to the

extortion of drug dealers by police).

3. Defendant was associated with the enterprise

The third element that the government must prove is that each defendant was

employed by or associated with the enterprise. "Associated# means that a person joined the

enterprise in some fashion, even if his role in the enterprise was "very minor #. United States v.

Marino, 277 F.3d 11, 33 (1st Cir. 2002).

Here, all of the proposed defendants were assigned members of the NFU and did

the type of work assigned to that unit, that is, the investigation of, and arrests for, narcotics

offenses.

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4. Defendant knowingly and willfully conspired to participate in the

conduct of the affairs of the enterprise through a pattern of racketeering

activity.

The fourth element that the government must prove is that the defendant

knowingly and willfully conspired to participate in the conduct of the affairs of the enterprise

through a pattern of racketeering activity. The Supreme Court has interpreted the phrase "to

participate in the conduct of the enterprise!s affairs# to mean participation in the operation or

management of the criminal enterprise. See Reves v. Ernst & Young, 507 U.S. 170, 185 (1993).

However, one need not hold a formal position within an enterprise in order to " participate# in its

affairs. Id. at 179. The First Circuit has stated that RICO liability extends to those " plainly

integral to carrying out# the enterprise!s activities. United States v. Shifman, 124 F.3d 31, 36

(1st Cir. 1997). As in the case of conventional conspiracies, it is not necessary for the

government to prove that each co-conspirator explicitly agreed with all of the others to commit

the substantive racketeering offenses. Nor is it necessary to show that each conspirator

participated in the conspiracy from its inception, knew the identities of all of his co-conspirators,

or was aware of all the details of the conspiracy. United States v. Riccobene, 709 F.2d 214, 225

(3d Cir. 1983). See United States v. Cagnina, 697 F.2d 915, 922 (11th Cir. 1983).2 However,

2 To establish the requisite conspiratorial agreement, the government is not required to prove that each co-conspirator explicitly agreed with every other co-conspirator to commit thesubstantive RICO offense, or knew all his fellow conspirators or was aware of all of the detailsof the conspiracy. Rather, to establish sufficient knowledge, it is only required that the defendantknow the general nature and common purpose of the conspiracy and that the conspiracy extends

beyond his individual role. Moreover, the elements of a RICO conspiracy, such as theconspiratorial agreement, the defendant!s knowledge of it, and the defendant!s participation inthe conspiracy, may be inferred from circumstantial evidence. For example, when the evidenceestablishes that the defendant and at least one other conspirator committed several racketeeringacts in furtherance of the charged enterprise!s affairs, the jury may infer the existence of therequisite agreement to commit a RICO offense. See, e.g., United States v. Ashman, 979 F.2d

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while each defendant need not be aware of all of the racketeering activities of each of his

partners in the enterprise, he must know something about his co-defendants! related activities.

United States v. Martino, 648 F.2d 367 (5th Cir. 1981).

The government must prove that each defendant agreed that a conspirator would

commit at least two racketeering acts on behalf of the enterprise.3 The easiest way to prove that

fact is to show that each defendant personally committed or ordered the commission of two

racketeering acts.

To establish a "pattern of racketeering activity,# the Government must prove three

elements beyond a reasonable doubt:

469, 492 (7th Cir. 1992); United States v. Crockett, 979 F.2d 1204, 1208-09 (7th Cir. 1992);United States v. Carlock, 806 F.2d 535, 547 (5th Cir. 1986); United States v. Melton, 689 F.2d679, 683 (7th Cir. 1982); United States v. Sutherland, 656 F.2d 1181, 1187 n. 4 (5th Cir. 1981);United States v. Elliott, 571 F.2d 880, 903 (5th Cir. 1978). However, it is for the jury todetermine whether, based on the entirety of the evidence, the government has proven that thedefendant entered into the required conspiratorial agreement. If the jury finds that there is aconspiracy, the jury may consider the acts and statements of any other member of the conspiracyduring and in the furtherance of the conspiracy as evidence against a defendant whom you havefound to be a member of it. When persons enter into a conspiracy, they become agents for eachother, so that the act or statement of one conspirator during the existence of, and in furtheranceof, the conspiracy is considered the act or statement of all the other conspirators and is evidenceagainst them all.

3 The indictment need not specify the predicate racketeering acts that the defendant agreedwould be committed by some member of the conspiracy in the conduct of the affairs of theenterprise. The jury may consider evidence presented of racketeering acts committed or agreedto be committed by any co-conspirator in furtherance of the enterprise!s affairs to determinewhether the defendant agreed that at least one member of the conspiracy would commit two ormore racketeering acts. See, e.g., United States v. Glecier, 923 F.2d 496, 499-500 (7th Cir.

1991); United States v. Crockett, 979 F.2d 1204, 1208-09 (7th Cir. 1992); United States v.Phillips, 874 F.2d 123, 125-28 (3d Cir. (1989). However, in order to convict the defendant of theRICO conspiracy offense, the jury!s verdict must be unanimous as to which type or types of predicate racketeering activity the defendant agreed would be committed.

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One: The defendant intentionally committed, or caused, or aided and

abetted, the commission of, two or more of the racketeering acts alleged in the

indictment. These two or more racketeering acts must have been committed

within ten years of each other.

Two: The racketeering acts have a "nexus# to the enterprise and the

racketeering acts are "related." A racketeering act has a "nexus# to the enterprise

if it has a meaningful connection to the enterprise. To be "related,# the

racketeering acts must have the same or similar purposes, results, participants,

victim, or methods of commission, or be otherwise interrelated by distinguishing

characteristics and not be merely isolated events. Two racketeering acts may be

"related# even though they are dissimilar or not directly related to each other,

provided that the racketeering acts are related to the same enterprise. For

example, for both "nexus# and "relatedness# purposes, the requisite relationship

between the RICO enterprise and a predicate racketeering act may be established

by evidence that the defendant was enabled to commit the racketeering act solely by virtue of his position in the enterprise or involvement in or control over its

affairs, or by evidence that the defendant!s position in the enterprise facilitated his

commission of the racketeering act, or by evidence that the racketeering act

benefitted the enterprise, or by evidence that the racketeering act was authorized

by the enterprise or by evidence the racketeering act promoted or furthered the

purposes of the enterprise.

Third: The racketeering acts themselves either extended over a

substantial period of time or they pose a threat of continued criminal activity. The

government need not prove such a threat of continuity by any mathematical

formula or by any particular method of proof, but rather may prove it in a varietyof ways. For example, the threat of continued unlawful activity may be

established when the evidence shows that the racketeering acts are part of a long-

term association that exists for criminal purposes or when the racketeering acts

are shown to be the regular way of conducting the affairs of the enterprise.

Moreover, in determining whether the government has proven the threat of continued

unlawful activity, the jury also may consider the nature of the enterprise, and other unlawful

activities of the enterprise and its members viewed in their entirety, including both charged and

uncharged unlawful activities.

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B. Conspiracy to Deprive of Civil Rights

Section 241 provides, “[i]f two or more persons conspire to injure, oppress,

threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District

in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or

laws of the United States, or because of his having so exercised the same . . . [they shall be fined

or imprisoned or both].” 4

To obtain a conviction for conspiracy to violate civil rights under § 241, the

government must prove the following: (1) that two or more persons entered into the conspiracy;

(2) that the conspirators agreed to the object of the conspiracy, here, to violate a person’s right to

be free from unreasonable seizures;5 (3) that the conspirators acted under color of law in the

4 A violation of § 242 is a felony offense punishable by a maximum of ten yearsimprisonment and a fine of $250,000 if "bodily injury" results or if the acts committed inviolation of the statute "include the use, attempted use, or threatened use of a dangerous weapon,explosives, or fire." The offense is punishable by imprisonment for any term of years or for life,or by a sentence of death, if the crime resulted in death or "if such acts include kidnapping or anattempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, oran attempt to kill." If the acts committed in violation of the statute involve none of the specifiedadditional elements, and if no injury results, the offense is a misdemeanor punishable by amaximum of one year in prison and a fine of $100,000. 18 U.S.C. § 242. However, a Section241 conspiracy is always a felony offense, even if the related substantive offense is amisdemeanor. As such, it always carries a potential ten year term of imprisonment.

5 Any seizure during an arrest or investigatory stop is subject to analysis under the FourthAmendment as is any taking or destruction of property incident to that seizure. The FourthAmendment is made applicable to the states through the due process clause of the FourteenthAmendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). Evaluation of a Fourth Amendmentclaim involves an examination of whether a seizure occurred and a determination of whether theofficer acted reasonably.

All claims that law enforcement officers used excessive force during an arrest or other"seizure" are evaluated under the Fourth Amendment's "reasonableness" standard. Graham v.Connor, 490 U.S. 386, 388 (1989). The query whether a particular use of force was reasonable is"not capable of precise definition or mechanical application." Id. at 396 (quoting Bell v. Wolfish,441 U.S. 520, 559 (1979)). The question is whether the officers' actions were "objectively

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course of the conspiracy;6 (4) that the defendant knowingly became a member of the conspiracy;

and (5) that the defendant acted willfully.7 United States v. Occhipinti, 772 F. Supp. 170, 172-73

(S.D.N.Y. 1991); see also United States v. Epley, 52 F.3d 571, 575-76 (6th Cir. 1995).

reasonable" in light of the facts and circumstances confronting them at the time. Id. at 397. "The'reasonableness' of a particular use of force must be judged from the perspective of a reasonableofficer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396. "Carefulattention" must be paid "to the facts and circumstances of each particular case, including theseverity of the crime at issue, whether the suspect poses an immediate threat to the safety of theofficers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id.

6 Only persons acting "under color of any law" may be prosecuted under § 242. TheSupreme Court has defined action taken under color of law as "[m]isuse of power, possessed byvirtue of state [or federal] law and made possible only because the wrongdoer is clothed with theauthority of [that] law." United States v. Classic, 313 U.S. 299, 326 (1941); see also UnitedStates v. Price, 383 U.S.787, 794 n.7 (1966) ("under color of law" means the same thing in § 242as in 42 U.S.C. § 1983). Officials may act under color of law even though they exceed the bounds of their legal authority. See Screws v. United States, 325 U.S. 91, 111 (1945) ("Acts ofofficers who undertake to perform their official duties are included whether they hew to the lineof their authority or overstep it."); see also Hafer v. Melo, 502 U.S. 21, 28 (1991) (explainingcolor of law requirement was designed to enforce Fourteenth Amendment "against those who

carry a badge of authority of a State and represent it in some capacity, whether they act inaccordance with their authority or misuse it"). Thus, "[i]t is clear that under 'color' of law meansunder 'pretense' of law." Screws, 325 U.S. at 111. By using the phrase "under color of any law,"§ 242 clearly applies to those who act under color of federal law, as well as to those who actunder color of state law. See United States. v. Otherson, 637 F.2d 1276, 1278-79 (9th Cir. 1980);see also Screws, 325 U.S. at 97, n.2 ("federal as well as state officials would run afoul of [18U.S.C. § 242] since it speaks of 'any law, statute, ordinance, regulation, or custom.'").

7 The Supreme Court has interpreted this intent requirement narrowly to preserve thestatute's constitutionality against a vagueness challenge. See Screws v. United States, 325 U.S.91, 103-04 (1945). In Screws, the Court concluded that § 242 requires proof that the defendantacted with the specific intent "to deprive a person of a right which has been made specific either

by the express terms of the Constitution or laws of the United States or by decisions interpretingthem ." Id. at 104. Proof of "a generally bad purpose" is, therefore, not sufficient. Id. at 107. A"willful" act is one committed either "in open defiance or in reckless disregard of a constitutionalrequirement which has been made specific and definite." Id. at 105. "The fact that the defendantsmay not have been thinking in constitutional terms is not material" to whether they actedwillfully. Id. at 106; see also United States v. Bradley, 196 F.3d 762, 770 (7th Cir. 1999)(holding

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C. Robbery which Interferes with Interstate Commerce

The elements of robbery which interferes with interstate commerce, in violation of

18 U.S.C. § 1951(a) are: (1) that the defendant took personal property from the victim; (2) that

the defendant did so knowingly and willfully by robbery, and (3) that the defendant’s actions, in

any way or degree, obstructed, delayed, or affected the movement of any article or commodity in

interstate commerce.

Section 1951(b)(1) defines robbery as the unlawful taking or obtaining of

personal property from the person or in the presence of another, against his will, by means of

actual or threatened force, or violence, or fear of injury, immediate or future, to his person or

property, or property in his custody or possession. Section 1951 makes no distinction between

lawful and unlawful force.

D. Carrying and Using a Firearm During and in Relation to a Crime of Violence:

To make out a violation of 18 U.S.C. § 924(c)(1), the government must prove:

(1) that the defendant committed the crime of violence, as charged in the indictment; (2) that

that to act "willfully," the defendant need not specifically intend the resulting constitutionaldeprivation as long as the defendant intended to commit the act and the act resulted in aconstitutional deprivation); United States v. Walsh, 194 F.3d 37, 52-53 (2d Cir. 1999) (holdingthat jury did not have to find defendant knew of the particular Constitutional provision at issue but that it had to find intent to invade interest protected by Constitution); United States v. Reese,2 F.3d 870, 881 (9th Cir.1993) (holding that defendant may act with the requisite specific intentwithout "thinking in constitutional terms"); United States v. Dise, 763 F.2d 586, 592 (3d Cir.1985) (holding that government need not demonstrate that defendant was aware that the right

was protected by the Constitution or that the defendant was thinking in constitutional terms).Evidence as to the egregiousness of the act—including its character and duration, the weaponsemployed, and the provocation, if any—is therefore relevant to this inquiry . Screws, 325 U.S. at107. The more outrageous the conduct the easier it will be to convince a jury that the defendantknew that what he or she did was wrong.

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during the commission of that crime, the defendant knowingly used and carried a firearm; and

(3) that the defendant carried the firearm during and in relation to the crime of violence.

“To ‘carry’ a firearm means to move or transport the firearm on one’s person or in

a vehicle or container. It need not be immediately accessible.” Hornby, Pattern Criminal Jury

Instructions, § 4.18.924, at 140. To carry a firearm “during and in relation to” the crime means

that the firearm must have “played a role in the crime or must have been intended by the

defendant to play a role in the crime,” although this need not be the sole purpose of carrying the

firearm. Hornby, Pattern Criminal Jury Instructions, § 4.18.924, at 140. The firearms must have

had “some purpose or effect” with respect to the robberies; their presence or involvement cannot

be the result of accident or coincidence.” Smith v. United States, 508 U.S. 223, 238 (1993). In

other words, the guns “must facilitate, or have the potential of facilitating,” the underlying

offense. Id.; United States v. Castro-Lara, 970 F.2d 976, 983 (1st Cir. 1992) (“[T]here must be

some facilitative nexus between the weapon and the criminal activity.”).

Although the government must prove some nexus between the defendants’

carrying of firearms and the underlying crime, “facilitation of the crime need not be the

defendant’s sole purpose for possessing the weapon.” Id. at 983. “If a gun is possessed for some

other, perhaps legitimate, purpose, an intent to have it available for possible use in connection

with, say, a drug deal, or as a device to lend courage during such a transaction, will suffice to

invoke the statute.” Id. Further, courts of appeals have generally rejected “coincidental

carrying” claims advanced by police officer defendants. See, e.g., United States v. Rivera, 889

F.2d 1029 (11th Cir. 1989) (noting that defendant police officers discussed the need to carry

weapons during a robbery attempt and it was therefore reasonable to conclude they intended to

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use the weapons if necessary); United States v. Guidry, 456 F.3d 493, 508 (5th Cir. 2006)(noting

that, although defendant police officer did not take his gun out of his belt to threaten victim, gun

remained within defendant’s reach and victim was aware of it; from this, jury could reasonably

conclude that defendant was emboldened by his possession of the gun, and that gun was a threat

to and intimidated victim).

E. Hobbs Act Extortion

In order to prove extortion under color of official right, the government must

prove the following: (1) that the defendant was a public official; (2) that the defendant obtained

property from a person with that person’s consent; (3) that the property was not lawfully due the

defendant or his office; (4) that the defendant obtained the property knowing that it was provided

in return for official acts; and (5) that as a result of the defendant’s actions, interstate commerce

was obstructed, delayed, or affected. See United States v. Vazquez-Botet, 532 F.3d 37, 60 (1st

Cir. 2007).

F. Possession with Intent to Distribute Over 500 Grams of Cocaine

In order to find the defendant guilty of possession with intent to distribute

the government must prove that (1) the defendant possessed a mixture or substance containing a

controlled substance; (2) that the defendant possessed the controlled substance knowingly or

intentionally; (3) that the defendant intended to distribute the controlled substance; (4) that the

controlled substance was cocaine; and (5) that the weight of the mixture or substance containing

cocaine was over 500 grams

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G. Falsification of Records in Federal Investigations

Title 18, Section 1519 reads that “Whoever knowingly . . . falsifies, or makes a

false entry in any record, document, or tangible object with the intent to impede, obstruct, or

influence the investigation or proper administration of any matter within the jurisdiction of any

department or agency of the United States” is guilty of this offense. The authors of the subject

Philadelphia Police 75-49’s falsified the reports by omitting to explain all the facts relating to the

individual searches and seizures of evidence.

Material omissions are sufficient to support a conviction under Title 18 U.S.C.

§ 1519, which criminalizes falsifying or making a false entry in any record or document with

intent to impede, obstruct or influence the investigation or proper administration of a matter in

the jurisdiction of the FBI. Congress intended § 1519 as part of the Sarbanes-Oxley Act, and it

was intended to have broad application to reach obstructive conduct relating to any matter within

the jurisdiction of a federal agency. See Sarbanes-Oxley Act of 2002, Pub.L. 107-204, Title

VIII, § 802(a), July 30, 2002, 116 Stat. 800. Congress intended to free § 1519 from technical

requirements of pre-existing obstruction statutes in order to allow prosecution of a wide array of

obstructive conduct, regardless of whether a federal investigation was pending or imminent at the

time of the obstructive acts and regardless of whether the defendant knew of, or even anticipated,

a federal investigation. Congressional intent is evidenced first and foremost by the text of

§ 1519, which proscribes the broader term “ falsifies” in addition to “makes a false entry.” See

18 U.S.C. § 1519. Congresses’ intent that § 1519 have a broad reach is further corroborated by

the statute’s legislative history, which states, in relevant part:

Section 1519 is meant to apply broadly to any acts to destroy or fabricate physical

evidence so long as they are done with the intent to obstruct, impede or influence

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the investigation or proper administration of any matter, and such matter is within

the jurisdiction of an agency of the United States, or such acts done either in

relation to or in contemplation of such a matter or investigation. . . Destroying or

falsifying documents to obstruct any of these types of matters or investigations,

which in fact are proved to be within the jurisdiction of any federal agency are

covered by this statute.

SENATE REPORT NO. 107-146, pp. 14-15 (May 6, 2002), 2002 WL 863249 (Leg.Hist.)(Emphasis added).

The only case the government is aware of which addresses material omissions in

the context of a § 1519 violation held that material omissions were sufficient to support a

conviction. See, United States v. Jackson, 186 Fed.Appx. 736, 738 (9th Cir. 2006) (unpublished)

(Defendant omitted a confession made by another FPS officer from an official investigation

report; the court easily concluded that this omission was sufficient to support a conviction under

§ 1519.)

Similarly, courts have upheld convictions under an analogous statute for material

omissions. Title 18 U.S.C. § 1005 provides in relevant part: Whoever “makes any false entry”

in any book, report, or statement of [a] bank. . .with intent to injure or defraud such bank. . .or to

deceive any officer of such bank. . .[s]hall be fined. . .or imprisoned. . .or both.” Courts have

consistently held that a material omission qualifies as a “false entry.” See United States v.

Weidner, 437 F.3d 1023, 1037 (10th Cir. 2006) (“Under Section 1005, ‘an omission of material

information qualifies as a false entry.’” (citations omitted); United States v. Jackson, 621 F.2d

216, 219 (5th Cir. 1980) (“[a]n omission of material information as well as an actual

misstatement qualifies as a false entry under [section 1005]”; accord, United States v. Harvard,

103 F.3d 412 (5th Cir. 1997); United States v. Copple, 827 F.2d 1182, 1187 (8th Cir. 1987) (“An

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omission where an honest entry would otherwise be made can be a false entry for section 1005

purposes.”).

The policies underlying § 1005 and § 1519 establish the intent to hold criminally

responsible those who intentionally falsify or make false entries into documents of federal

interests. In Weidner, the court noted that the policy underlying § 1005 is to ensure that an

inspection of a bank’s books “will yield an accurate picture of its condition,” finding as a result

that “a material omission from a document may constitute a false entry.” Weidner at 1039.

Similarly, the policy underlying § 1519 is to ensure that an inspection of records or documents in

a matter within the jurisdiction of an agency of the United States “will yield an accurate picture”

of the matter reported. A review of other obstruction statutes supports the government’s

position that material omissions can constitute a violation of § 1519. For example, United States

v. Hartz, 64 F.3d 660 (4th Cir. 1995) (unpublished), the court held that the defendant violated 18

U.S.C. 1503 where she submitted reports with material omissions.

In sum, 1) it is clear from the statutory language and the legislative history that

Congress intended § 1519 to have a broad reach in criminalizing obstructive conduct; 2) the only

court to address the issue has concluded that a material omission can constitute a violation of

1519; 3) because courts have consistently concluded that material omissions can constitute “false

entries” under an analogous statute; and 4) policy considerations support a finding that material

omissions can constitute obstruction.8

8 Courts which have construed Section 1519 have rejected arguments that the governmentmust prove that a formal investigation had commenced at the time the defendant engaged in theobstructive conduct. See United States v. Ionia Management S.A., 526 F.Supp.2d 319, 329 (D.Conn. 2007) (In comparison to other obstruction statutes, Section1519 by its terms does notrequire the defendant to be aware of a federal proceeding, or even that a proceeding be pending);

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Other Predicate Acts under RICO9

H. Robbery under 18 Pa. C.S.A. §3701

A person is guilty of robbery in the Commonwealth of Pennsylvania under

Section 3701 if, in the course of committing a theft, he (ii) threatens another with or intentionally

puts him in fear of immediate serious bodily injury; (iv) inflicts bodily injury upon another or

threatens another with or intentionally puts him in fear of immediate bodily injury; or (v)

physically takes or removes property from the person of another by force however slight.

Subsection (ii) is a felony of the first degree, punishable by up to 20 years’

imprisonment.

Subsection (iv) is a felony of the second degree, punishable by up to 10 years’

imprisonment.

Subsection (v) is a felony of the third degree, punishable by up to 7 years’imprisonment.

I. Kidnapping under 18 Pa. C.S.A. § 2901

A person is guilty of kidnapping in the Commonwealth of Pennsylvania under

Section 2901 if he unlawfully removes another a substantial distance under the circumstances

from the place where he is found, or if he unlawfully confines another for a substantial period in

a place of isolation, with any of the following intentions: (2) to facilitate commission of any

United States. v. Kun Yun Jho, 465 F.Supp.2d 618, 636 (E.D.Tex. 2006) (imposing arequirement that the matter develop into a formal investigation ignores the plain meaning of thestatute and the legislative history. All that is required is proof that [the defendant] knowinglymade false entries in a document . . . .with the intent to impede, obstruct, or influence the properadministration of any matter within the jurisdiction of the United States agency) .

9 Under 18 U.S.C. § 1961, racketeering activity means (A) any act or threat involvingmurder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, ordealing in a controlled substance . . . which is chargeable under State law and punishable byimprisonment for more than one year.

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felony or flight thereafter; (3) to inflict bodily injury on or to terrorize the victim or another. A

removal or confinement is unlawful within the meaning of this section if it is accomplished by

force, threat or deception.

Kidnapping is a felony of the first degree which is punishable by up to twenty

years’ imprisonment.

III. Potential Trial Issues

A. Motion to Preclude Reference to Defendant’s Background

The government moves to preclude defense counsel from making reference to a

defendant’s biographical history, work history and family circumstances in their opening

statements to the jury unless defense counsel will present competent evidence to substantiate

those statements. The government is seeking to prevent a situation in which defense counsel

"testify" about these factors in their opening statements to the jury.

An opening statement must be kept within proper bounds, otherwise all manner of

irrelevant and extraneous subjects could be stated to the jury and, in the absence of good faith,

counsel could thus place before a jury much that he or she well knew could not later be

introduced into evidence. See Hallinan v. United States, 182 F.2d 880, 885 (9th Cir. 1950).

B. Motion to Preclude Use of Defendant Norman’s Post-Arrest Statement by Defense

Defendant Linwood Norman gave a videotaped post-arrest statement to the FBI.

The transcription of that statement consumes 51 pages. The government may move for the

admission of a small portion of that statement, specifically the section concerning Episode #9 of

Count One of the Indictment, concerning the arrest of Orlando Ramirez and the seizure of four

kilograms of cocaine. The government submits that the admission of this small section of the

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statement does not allow for the admission of the entire self-serving statement by the defense.

The government will introduce the section of the defendant’s statement as an

admission of a party opponent under F.R.E. 801(d)(2). The defendant, however, cannot elicit or

admit his own statement as an admission of a party opponent, because it is hearsay. The

defendant cannot elicit any exculpatory statements he made from witnesses called by the

government on cross-examination or otherwise present them by any means other than through

his or her own testimony. See United States v. Kapp, 781 F.2d 1008 (3d Cir. 1986) (affirming

district court’s ruling that tape recording of a conversation between a codefendant and

government informant that defendant considered exculpatory on the issue of his knowledge of

illegality was inadmissible because it was not offered “against a party” as required by Rule

801(d)(2)). See also United States v. McDaniel, 398 F.3d 540, 545 (6th Cir. 2005) (emphasis in

original) (“Rule 802(d)(2) [ ... ] does not extend to a party’s attempt to introduce his or her own

statements through the testimony of other witnesses” . . . to hold otherwise would allow

defendant to do “an end-run around the adversarial process by, in effect, testifying without

swearing an oath, facing cross-examination, or being subjected to first-hand scrutiny by the

jury”).

In McDaniel, the Sixth Circuit upheld the district court’s decision to preclude

defense counsel from eliciting statements the defendant made to a postal inspector who testified

at trial. Id. Although the inspector testified on direct examination about statements the

defendant made to her, the defendant could not question the inspector about other things the

defendant said to the inspector, because Rule 801(d)(2) does not permit a defendant to introduce

his or her own out-of-court statements. Id. at 544.

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In United States v. Hoffecker, 530 F.3d 137 (3d Cir. 2008) the Third Circuit

upheld, under Rule 801(d)(2), the exclusion of portions of an audiotape in which the defendant

made exculpatory statements, even though the government had played a portion of the recording

in its case-in-chief. The Court found that the rule of completeness did not compel a different

result. Id. at 192.10

Similarly, in United States v. Ortega, 203 F.3d 675 (9th Cir. 2000), the court

affirmed the district court's decision precluding the defendant from eliciting his own exculpatory

statements on cross-examination of a law enforcement officer, holding that the defendant’s

statements were inadmissible hearsay. Id. at 682. The court recognized that any other ruling

would have allowed the defendant to put his own statements before the jury without having to

take the stand himself – the precise situation the hearsay rule forbids. Id. at 682. In reaching its

decision, the Ortega court distinguished the defendant’s attempt to elicit his own exculpatory

statements from the government's use of the defendant’s inculpatory statements, noting that only

the latter constitute “admissions by a party opponent and . . . therefore not hearsay,” and noted

that the rule of completeness did not apply. Id. at 681-682; see also Williamson v. United States,

512 U.S. 594, 600 (1994) (recognizing that “[s]elf-exculpatory statements are exactly the ones

which people are most likely to make even when they are false . . . .”); United States v. Ricketts,

10 In Hoffecker, the government played portions of an undercover tape recording of adefendant!s sales pitch. The defendant sought to play the entirety of the tape recording asevidence of his then existing state of mind, which he argued was not hearsay under Rule 803(3).Id. at 191-92. The district court found the defendant!s statements " plain and simple exculpatory#

and excluded the defendant!s proffered evidence as inadmissible hearsay. Id. at 192. The ThirdCircuit agreed, noting that "the mere fact that [the defendant] claimed he offered the tape for adifferent purpose does not change the reality that he offered for its truth, i.e., to show that [hiscompany] was a legitimate operation.# Id. The Third Circuit held that admitting a defendant!srecorded, out-of-court, exculpatory statements is "tantamount to allowing [the defendant] totestify without being subject to cross-examination.#

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146 F.3d 492, 497 (1998) (report of the defendant's interview with the FBI properly excluded as

self-serving and thus inadmissible under the rules against hearsay).

Federal Rule of Evidence 106 is also of no help to the defendant in this instance.

See United States v. Lentz, 524 F.3d 501, 526 (4th Cir. 2008) ( "Rule 106 does not ... render

admissible the evidence which is otherwise inadmissible under the hearsay rules, [n]or does it

require the admission of self-serving, exculpatory statements made by a party which are being

sought for admission by that same party#) (internal quotations and citations omitted); United

States v. Mitchell, 502 F.3d 931, 964 (9th Cir. 2007) (defendant was properly precluded from

eliciting, on cross-examination of government agents, exculpatory statements that he had made

during interviews with agents, since those statements were inadmissible hearsay); United States .

Rivera, 61 F.3d 131, 136 (2d Cir. 1995) ("Rule 106 does not render admissible evidence that is

otherwise inadmissible#); United States v. Mahaffy, No. 05&CR &613, 2007 WL 1094153, at *2

(E.D.N.Y. Apr. 10, 2007) ("A court may ... exclude any portion that consists largely of a

defendant!s own self-serving statements, which, as offered by him, are inadmissible hearsay#)

(internal quotations omitted).11

11 The defendant is not entitled to the admission unless he satisfies the rigorousrequirements of Rule 106, which provides that where a party introduces a recorded statement, anopposing party may require the introduction at that time of any other part of any other . . .recorded statement which ought in fairness be considered contemporaneously with it. However,Rule 106, i.e., the Rule of Completeness, only requires admission of a statement in its entiretywhen it is necessary to explain the admitted portion, to place it in context, or to avoid misleadinga trier of fact, or to ensure a fair and impartial understanding of the admitted portion. See Marin,

669 F.2d at 84. Such admission should only occur when the portion sought to be admitted isrelevant to the issue, and only those parts which qualify or explain the subject matter of the portion offered by opposing counsel. Id.; see also United States v. Soures, 736 F.2d 87, 91 (3dCir. 1984). That an omitted portion of a conversation merely deals with the same subject matteras a published portion is not enough. In Hoffecker, 530 F.3d at 192, the Court rejected a Rule106 claim where the defendant sought to admit his statements from one conversation in order to

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C. Motion To Permit Jury to Use the Indictment during Deliberations.

The government has filed this motion under separate cover.

D. Motion to Permit Three Case Agents to Remain in Court During Trial

In this case, assuming that there will be a sequestration order issued, the

government moves to have three FBI agents remain in the court room. Because of the length of

this investigation and the number of witnesses involved, each agent has handled part of the

prosecution case.

Upon a party's request, Federal Rule of Evidence 615 requires a district court to

order sequestration of a witness. There are only three exceptions to this rule. The district court is

not authorized to sequester a witness who is:

(1) a party who is a natural person, or

(2) an officer or employee of a party which is not a natural person

designated as its representative by its attorney, or

(3) a person whose presence is shown by a party to be essential to the

presentation of the party's cause.

See Fed.R.Evid. 615.

explain his statements during another conversation, where the prior statements were notnecessary to avoid misleading the jury or to insure a fair and impartial understanding.

If the defendant seeks to introduce any of his prior statements under Rule 106, thedefendant must specify the particular passages that he believes are necessary for purposes ofRule 106 completeness. United States v. Price, 516 F.3d 597, 604-05 (7th Cir. 2008) (As the

party seeking to admit the additional evidence, [defendant] must establish both that the evidenceis relevant to the issues in the case and that it clarifies or explains the portion offered by theGovernment.). A judge need not admit every portion of a statement -- just those needed toexplain portions previously introduced. Id. If the proponent of the completing statements doesnot satisfy this burden on a statement-by-statement basis, the Court should exclude the additionalmaterial.

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Many circuits recognize a “case agent” exception to the typical rule of

sequestration, basing the exception on Rule 615. See United States v. Machor, 879 F.2d 945, 953

(1st Cir.1989); see also United States v. Robles-Pantoja, 887 F.2d 1250, 1256-57 (5th Cir.1989);

United States v. Adamo, 882 F.2d 1218, 1235 (7th Cir.1989); United States v. Parodi, 703 F.2d

768, 773 (4th Cir.1983); United States v. Butera, 677 F.2d 1376, 1381 (11th Cir.1982); United

States v. Perry, 643 F.2d 38, 53 (2d Cir. 1981). These cases hold that the government case agent

responsible for a particular investigation should be permitted to remain in the courtroom, even

though the agent will often testify later on behalf of the government.

Some circuits have held that the government may only exempt one agent for each

subprovision of Rule 615. See United States v. Pulley, 922 F.2d 1283, 1286 (6th Cir.) (allowing

exemption of only one agent under 615(2) and one agent under 615(3)); United States v.

Farnham, 791 F.2d 331, 335 (4th Cir.1986). But in United States v. Jackson, 60 F.3d 128, 133-

35 (2d Cir. 1995), the Second Circuit held that because the Rule does not expressly limit to one

the number of exemptions per provision, that this discretion extends to deciding whether, in a

particular case, more than one witness should be exempt under a particular subprovision. See

also United States v. Payan, 992 F.2d 1387, 1394 (5th Cir.1993) (the trial judge has discretion to

determine how many witnesses may be excused from sequestration.)

In making a Rule 615 ruling, a district court must exercise discretion, and among

the factors that might usefully inform the exercise of such discretion are: 1) how critical the

testimony in question is, that is, whether it will involve controverted and material facts;

2) whether the information is ordinarily subject to tailoring, such that cross-examination or other

evidence could bring to light any deficiencies; 3) to what extent the testimony of the witness in

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question is likely to encompass the same issues as that of other witnesses; 4) the order in which

the witnesses will testify; 5) any potential for bias that might motivate the witness to tailor his

testimony; and 6) if the court is considering exempting the witness from sequestration under

Rule 615(3), whether the witness's presence is “essential” rather than simply desirable.

Because a court may only decline to grant a party's request to sequester particular

witnesses under one of the Rule 615 exemptions, the rule carries a strong presumption in favor of

sequestration. The party opposing sequestration therefore has the burden of demonstrating why

the pertinent Rule 615 exception applies, Gov’t of Virgin Islands v. Edinborough, 625 F.2d 472,

474 (3d Cir. 1980), and “why the policy of the Rule in favor of automatic sequestration is

inapplicable in that situation,” id. at 476. The party requesting sequestration should thereafter

have a chance to demonstrate its necessity. Id. Such an exchange affords the court full

opportunity to consider the competing interests and, if it denies the motion, to explain the factors

it considered in reaching its decision. Id.

In this case, the government intends to only call one of the three agents to testify

at trial, therefore the tailoring of testimony by the agents will not a problem.12 Consequently,

because of their individual roles in this lengthy investigation and because only one of the agents

will be called to testify by the government, all three agents should be allowed to remain in the

courtroom during testimony.

12 Moreover, although Rule 615 of the Federal Rules of Evidence requires a district court toorder sequestration of a witness upon a party's request, the Third Circuit explained that even withmultiple agents in the courtroom, the possibility that “agents could coordinate their testimonydoes not pose a likelihood of prejudice since they had ample time before trial to do that, werethey so inclined.” United States v. Gonzalez, 918 F.2d 1129, 1137 & n. 8 (3d Cir.1990).

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E. Motion to Withdraw Counts 4 and 22 and Episodes 19 and 20 in Count One (RICOConspiracy)

The government will not be presenting any evidence as to those Counts or those

Episodes. Consequently, those Counts and Episodes should not be mentioned by either the

prosecution or the defense.

F. Motion to Preclude Cross-Examination Using Old Conviction

The government has filed this motion under separate cover.

G. Motion to Amend Date in Paragraphs 72 and 73 of Episode 17 of Count One ofIndictment

The government moves to amend the date described in Paragraphs 72 and 73 of

Episode 17 of Count One from August 14, 2010 to August 24, 2010. The defendants are not

prejudiced by such an amendment because the discovery provided, including the grand jury notes

and police paperwork, clearly indicated that the stop and arrest of L.S. occurred on August 24,

2010.

As the courts have recognized, amendments to an Indictment are permitted when

the change concerns matters of form rather than one which is substantial or material. See, e.g.,

Russell v. United States, 369 U.S. 749, 770 (1962); United States v. Goldstein, 502 F.2d 526,528

(3d Cir. 1976). Indeed, where, as here, there is a typographical error in the Indictment which

does not prejudice the defendant, such an error may be corrected by the Court or the prosecutor.

See, e.g. , United States v. Miller, 116 F.3d 641, 669-671 (2d Cir. 1997) (noting that correction of

merely technical errors, such as typographical or clerical mistakes, is permissible where it does

not alter "essential substance" of charging terms).

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The primary inquiry for the Court is whether the amendment will change the basic

theory of the offense, alter the crime charged, unfairly surprise the defendants, or create an

opportunity for the government to prosecute the defendants again for substantially the same

offense. Cf. United States v. DeCavalcante, 440 F.2d 1264, 1271, 1272 (3d Cir. 1971). Here,

none of those situations are encountered, and the amendment should be allowed.

Respectfully submitted

ZANE DAVID MEMEGERUnited States Attorney

s/Anthony J. WzorekANTHONY J. WZOREKMAUREEN McCARTNEYAssistant United States Attorneys

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the government’s trial memorandum

has been electronically filed on ECF and therefore served on:

Jeffrey M. Miller, Esq. Jack J. McMahon, Jr., Esq. Nasuti and Miller 1500 Walnut StreetPublic Ledger Building, Suite 1064 Suite 1100150 South Independence Mall West Philadelphia, PA 191026th & Chestnut Streets (counsel for Reynolds)Philadelphia, PA 19106(counsel for Liciardello)

James J. Binns, Esq. Gregory J. Pagano, Esq.

1818 Market Street 1315 Walnut StreetSuite 3750 12th FloorPhiladelphia, PA 19103 Philadelphia, PA 19107(counsel for Spicer) (counsel for Betts)

Nicholas V. Pinto, Esq. Michael J. Diamondstein, Esq.Cast Iron Building, Suite 402N Three Penn Center718 Arch Street Suite 900Philadelphia, PA 19106 Philadelphia, PA 19102(counsel for Norman) (counsel for Speiser)

s/Anthony J. WzorekANTHONY J. WZOREKAssistant United States Attorney

Date:

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pretrial memo

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