As will be discussed further in Part C, infra, whereas the government asserted traditional badges of mortgage fraud against V., M. This pre-indictment delay is all the more significant in light of the unique nature of the government’s theory of prosecution of the Client. V., and, knowing that testimony to be exculpatory, waited two years after his death to charge the Client, thereby seeking to pretermit admission of this exculpatory testimony that would exonerate the Client of their theory of prosecution.ġ0. In other words, the government knew they could not properly prosecute the Client without the testimony of Mr. was alive, waited until two years after his death to file charges. A at ♡6), and, rather than pursuing charges against the Client while Mr. Worse yet, the government knew they could not properly prosecute the Client without the testimony of Mr. expired to bring this charge – knowing he was a crucial exculpatory witness. Indeed, the government waited almost two years (that is, 23 months) after Mr. the only government witness who has any direct evidence with regard to the allegations against the Client, but, as evidenced by Exhibit A, he was an incredibly exculpatory witness – who would have exonerated the Client.Ĩ. – was deceased, and lost his life, during their prosecution of him.ħ. Clearly, the government was aware that the only co-conspirator named in the Client’s Indictment – D. Moreover, the only witness the government has to establish any direct conversations with the Client with regard to their alleged conspiracy is now deceased, having passed away on March 17 – almost two years before the February 14 Indictment. 34), and the Client’s Response to United States’ Amendment to Response to Defendant’s Motion to Produce Handwritten Notes (Doc. See United States’ Amendment to Response to Defendant’s Motion to Produce Handwritten Notes (Doc. During that large lapse of time, witnesses have clearly suffered memory loss, as graphically evidenced by the government’s case agent herself not even being able to recall whether she took notes of the interview of the Defendant. Hence, the conduct dates back almost seven years, and the most recent conduct is alleged to have occurred some four years before the Indictment was returned.ĥ. The Indictment in this case asserts conduct that occurred between November and April. indictment was returned, and 26 months after Mr. This indictment was returned 38 months after the V. On February 14, a nine count Indictment, alleging mail, wire and bank fraud, was filed against the Client. trial, the Client received a grand jury subpoena requesting records, for which he promptly and timely provided the records.ģ. S., at his home, regarding an alleged mortgage fraud investigation.Ģ. trial, the Client was interviewed by FBI Special Agent (“SA”) V. P., and hereby respectfully files this Motion to Dismiss, due to (1) Pre-Indictment Delay and (2) the Absence of any Allegation or Proof of Knowing or Willful Joinder in Any Unlawful Plan, and in support hereof, states as follows: Introductionġ. COMES NOW the Defendant, by and through his undersigned counsel, pursuant to Rule 12(b), Fed.
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