Opinion
99 Cr. 997 (LMM).
July 29, 2005
MEMORANDUM AND ORDER
Defendant's pending pro se applications are disposed of as set forth below.
One motion by defendant by counsel is described in § 2, below.
1.
In a communication dated November 21, 2004, defendant moves for an order allowing the taking of the deposition of one Tina Mustra in connection with the contempt proceeding pending before Judge Owen. This motion is denied without prejudice to renewal before Judge Owen.2.
In a notice of motion dated November 16, 2004 defendant moves for an order striking those portions of the first superseding indictment under the heading "SUPPLEMENTAL ALLEGATIONS TO COUNTS ONE THROUGH TWENTY FIVE" (i.e., ¶¶ 78-83), or for alternative relief described in paragraph e. of defendant's notice of motion.
Defendant, by counsel, has made a similar motion, dated November 18, 2004, pursuant to Fed.R. Cr. P. 7(d), on the ground that such allegations are surplusage, but including other allegations in the first superseding indictment as well. (See Def. Mem., Nov. 18, 2004, at 6-9.) The government has not so far responded to such motion filed by counsel, and is directed to do so within 21 calendar days of the date hereof.
The alternative relief sought by defendant in the pro se motion — a declaratory judgment to the effect that, should the allegations dismissal of which is sought survive, then the sentence for the matters alleged in such allegations may not exceed six months — is denied as not ripe, without prejudice to any appropriate sentencing arguments should defendant be convicted.
3.
In a notice of motion dated December 23, 2004, defendant moves for an order requiring Alan Cohen, the receiver of Princeton Economics International, Ltd. and Princeton Global Management, Ltd., to produce all materials seized, found, obtained, and created by him as receiver.
Whatever the obligations of Mr. Cohen may be in the civil actions pending before Judge Owen (a question on which this Court expresses no opinion), defendant has not, in his supporting Memorandum of Law, shown how the documents sought (which are not described as having been subpoenaed), or any described subset thereof, are relevant to this criminal case, or are subject to discovery under rules governing criminal cases. The motion is denied, without prejudice as far as the civil cases are concerned to renewal before Judge Owen, and without prejudice as far as this criminal case is concerned to renewal before the undersigned, under the rules governing discovery in criminal cases.
Defendant, in his moving papers, refers to 18 U.S.C. § 3500 and to Brady v. Maryland, 373 U.S. 83 (1963). Materials that may become subject to production by the government under 18 U.S.C. § 3500 do not have to be produced at this time. The government must, under Brady, produce exculpatory evidence promptly upon its discovery, and the Court assumes that the government is aware of its Brady obligations, and will comply with them.
4.
On February 2, 2005, defendant submitted a proposed order to show cause which would bring on a motion for "an order staying the civil cases 99-Civ-9667 (RO) and 99-Civ-9669 (RO) and/or the indefinite civil contempt or [for] the US Attorney Office of the SDNY and AUSA Brian Coad to immediately intervene in the aforementioned civil cases to stay the contempt in its entirety pending resolution of Armstrong's Fifth and Sixth Amendment rights in this proceeding." (Prop. Order to Show Cause at 4.)The thrust of the motion is a challenge — on various grounds (including a claimed violation of defendant's Fifth Amendment privilege against self-incrimination) — to defendant's continued incarceration for contempt pursuant to order of Judge Owen. In December of 2004, Judge Owen denied defendant's petition for a writ of habeas corpus seeking the same relief.Armstrong v. Guccione, 351 F. Supp. 2d 167 (S.D.N.Y. 2004). That decision is presently on appeal to the Second Circuit. (No. 04-5448)
Defendant's counsel, by letter to the Court dated March 23, 2005, join in the motion insofar as the Fifth Amendment issue is concerned.
Judge Owen's decision addresses the Fifth Amendment issue as does defendant's brief filed with the Court of Appeals.
The Court declines to issue the order to show cause as not properly before the undersigned, without prejudice to any proceedings before Judge Owen or the Court of Appeals.
5.
In a notice of motion dated February 9, 2005, defendant seeks bail pending resolution of the constitutionality of his confinement for contempt pursuant to order of Judge Owen.
Defendant's counsel, by letter to the Court dated March 23, 2005, join in the motion for bail as well.
The motion is denied without prejudice to renewal before Judge Owen.
6.
On April 7, 2005, defendant submitted a proposed order to show cause which would bring on a motion for an order enjoining the Securities and Exchange Commission, and its agent Katherine B. Gresham, and the Commodities Futures Trading Commission, and its agent Nancy Page, from "simultaneously prosecuting him for any statutory offense scheme predicated upon the same facts, conduct, transactions and incident [with] which he has bee[n] charged by the Grand Jury in an indictment pending trial in this court or at any time subsequent hereto." (Prop. Order to Show Cause at 2.) By letter to the Court dated July 4, 2005, defendant has withdrawn the application for such order to show cause without prejudice.
7.
By motion dated April 23, 2005, defendant moves for (i) the filing of a statement by the government pursuant to Fed.R.Crim.P. 12.4(a)(2), and (ii) production of the minutes of all proceedings before the grand jury in relation to the original and first superseding indictments, pursuant to id. 6(e) (3) (E). The precise bases for the motion are not clear. The motion is denied without prejudice. The Court suggests that discussion of the motion by defendant with his counsel might be helpful.
SO ORDERED.