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Case 1:09-cr-01002-WHP Document 109

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------x UNITED STATES OF AMERICA, -vRICHARD AMMAR CHICHAKLI, a/k/a Robert Cunning, a/k/a Raman Cedorov, Defendant. : : : : : S3 09 Cr. 1002 (WHP)

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GOVERNMENTS MEMORANDUM OF LAW TO PRECLUDE THE DEFENDANT FROM OFFERING CERTAIN EVIDENCE

PREET BHARARA United States Attorney Southern District of New York Attorney for the United States of America

Christian R. Everdell Ian McGinley Assistant United States Attorneys - Of Counsel-

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PRELIMINARY STATEMENT The Government respectfully submits this memorandum of law to preclude the defendant from offering evidence of his attempts to cooperate with law enforcement after he left the United States in 2005, and from eliciting his own prior out-of-court statements during cross examination of the Governments witnesses and during his direct examination of any defense witnesses. The defendants offers to cooperate and discussions with law enforcement after he left the United States are not relevant to the charges in this case, and, even if those discussions were relevant, their relevance is substantially outweighed by the danger of confusing the jury. The defendants own prior out-of-court statements, if offered by the defendant, are inadmissible hearsay. I. The Defendant Should Not Be Permitted To Offer Evidence Of His Attempts To Cooperate With The Government After His OFAC Listing The defendant has recently notified the Government of various witnesses he intends to call at trial. These witnesses include several law enforcement agents whom the defendant contacted after he left the United States following his OFAC designation in 2005, in an effort to cooperate with the Government. The defendants attempts to cooperate are not probative of his guilt or innocence and therefore have no relevance to this case. Accordingly, the defendant should be precluded from eliciting such testimony at trial. Specifically, the defendant has indicated in his recent submissions to the Court and the Government that he intends to call (1) FBI Special Agent William Hoffman, (2) Special Agent Bryan Earl, the former FBI Legal Attach in Moscow, and (3) Assistant United States Attorney John Cox. In late 2007, a few months after the transaction with Aventura Aviation was blocked by OFAC, and at different points in 2008, the defendant contacted these individuals

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while he was living in Russia and offered to cooperate with law enforcement by, among other things, providing information about Viktor Bouts weapons trafficking with Jean-Pierre Bemba, the former Vice President of the Democratic Republic of Congo. In exchange for this information, the defendant sought the removal of the OFAC sanctions against him. During these discussions, the Government sent the defendant a proffer agreement, dated November 21, 2008, which provided the defendant with limited use immunity for any statements he might make at a future meeting with Government representatives in Moscow in December 2008. The defendant had been provided a similar proffer agreement in December 2005, a few months after OFAC listed him on the SDN list. However, the defendant did not execute either proffer agreement and no formal proffer discussions ever took place. Furthermore, in both cases, the Governments proffer agreement offered the defendant only limited use immunity for his statements, not transactional immunity for the 2007 transaction with Aventura Aviation, which is the subject of the charges against the defendant in this case. In addition, in 2010, while the defendant was still living abroad, and after the charges in this case were unsealed, the defendant again contacted FBI Legal Attach Bryan Earl in Moscow, who referred him to agents from the Drug Enforcement Administration (DEA). In April 2010, the defendant spoke on the phone to DEA Special Agents Lou Milione and Robert Zachariasiewicz and offered to make a deal by providing information to the DEA about Viktor Bout. In exchange, the defendant sought the dismissal of the criminal charges against him. The DEA rejected the defendants offer to cooperate. These aborted cooperation efforts do not reflect the defendants innocence and are therefore irrelevant for the jurys consideration. Although the Second Circuit has recognized that a refusal to cooperate may be evidence of consciousness of innocence, United States v. Biaggi,

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990 F.2d 662 (2d Cir. 1990), the facts in this case are much different. Biaggi involved a defendant who had rejected an offer of immunity in exchange for providing the government with information. Id. at 690. In finding that the district court erred by excluding evidence of the rejected offer, this Court stated that [w]hen a defendant rejects an offer of immunity on the ground that he is unaware of any wrongdoing about which he could testify, his action is probative of a state of mind devoid of guilty knowledge. Id. The Second Circuit further noted that a jury is entitled to believe that most people would jump at the chance to obtain an assurance of immunity from prosecution and to infer from rejection of the offer that the accused lacks knowledge of wrongdoing. Id. Biaggi is inapposite here, however, because the defendant offered to cooperate, and nothing about these offers tends to demonstrate his innocence. His initial offers to cooperate in 2005 and 2007 came only after OFAC designated him as an SDN and after OFAC blocked the 2007 airplane transactions. His offer to cooperate with the DEA in 2010 came only after the charges in this case were unsealed. Thus, the defendants offers to cooperate were a product of the Government exposing his wrongful conduct, rather than some altruistic motive or a desire to follow the law. See Torres v. Smith, 2005 WL 1580608, at *8 (S.D.N.Y. July 6, 2005) (distinguishing Biaggi because the petitioner cooperated with [police] only after he became aware that he was being investigated as a suspect for the crime, and thus had an incentive to feign innocence . . .) (Pauley, J.) (adopting the Report and Recommendation of Magistrate Judge Theodore H. Katz). Indeed, when the defendant contacted the DEA in 2010, he knew he was under indictment and was wanted in the United States. Rather than turn himself in to the authorities, the defendant offered to make a deal by providing information about Viktor Bout.

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Furthermore, unlike the defendant in Biaggi, the defendant was not offered full immunity, but rather only limited use immunity in the form of a standard proffer agreement. Any evidence of the defendants offers to cooperate and the proffer agreement sent to him would also confuse the jury and invite extended testimony about proffer agreements the differences between use and transactional immunity. See United States v. Wilson, 1998 WL 770561, at *2-3, (S.D.N.Y. Nov. 3, 1998) (declining to extend the doctrine of Biaggi to a rejected plea offer found to lack probative value, where it would create a risk of jury confusion and prejudice to the prosecution). The Government does not intend to offer evidence during its case-in-chief about the defendants offers to cooperate with law enforcement. Although the Government does intend to call FBI Special Agent William Hoffmann and DEA Special Agent Robert Zachariasiewicz in its case-in-chief, their testimony will relate to other matters and will not touch upon the defendants proposed cooperation. Accordingly, for the reasons set forth above, the defendant should be precluded from offering evidence about his offers to cooperate with law enforcement. II. The Defendant Should Be Precluded From Eliciting His Own Prior Out-Of-Court Statements Based on the defendants recent submissions to the Court and the Government, it also appears that he intends to elicit testimony of his own prior out-of-court statements through cross-examination of the Governments witnesses and through direct examination of law enforcement witnesses that he intends to call in his defense case. These include prior statements about his own innocence, and other self-serving statements, that he made after his OFAC designation and after his indictment in this case. It is a matter of black-letter law that the government may offer a prior statement of the defendant to establish the truth of the matter asserted under Rules 801(d)(2)(A), because it 4

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is a statement of the opposing party. Fed. R. Evid. 801(d)(2)(A) (A statement is not hearsay if [it] is offered against a party and is [] the partys own statement.); see also, e.g., United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982) ([U]nder Rule 801(d)(2)(A), a defendants statement offered by the Government is not hearsay, because it is simply a statement of the opposing party.) (internal quotes omitted). The government may also offer a statement of the defendant to show that the defendant made false representations to authorities, from which the jury could infer a consciousness of guilt, and hence guilt. United States v. Marin, 669 F.2d at 84. In this situation, the statement is not being offered for the truth of the matter asserted, but for another purpose and is, therefore, non-hearsay under Rules 801(c) and 801(d)(2)(A). By contrast, the Federal Rules of Evidence expressly limit a defendants ability to admit his own prior out-of-court statements. When the defendant seeks to introduce his own prior statement for the truth of the matter asserted, it is hearsay, and it is not admissible. Marin, 669 F.2d at 84; see also United States v. Yousef, 327 F.3d 56, 153 (2d Cir. 2003) (holding that defendant could have testified to everything asserted in his statement, [but] he could not offer the document itself for the truth of the matter asserted); United States v. Rea, 958 F.2d 1206, 1225 (2d Cir. 1992) (same). When the defendant offers his own statement simply to show that it was made, rather than to establish the truth of the matter asserted, the statement must be relevant to the issues of the case. United States v. Wise, 125 F.3d 845 (2d Cir. 1997); United States v. Demosthene, 334 F.Supp.2d 378, 381 (S.D.N.Y. 2004) (Marrero, J.). Self-serving and exculpatory statements are therefore inadmissible hearsay and may not be introduced by the defendant at trial. While the Government will offer at trial the inculpatory statements the defendant made to law enforcement agents, the Government will not elicit from these witnesses the

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defendants self-serving statements, such as comments he made to the DEA in 2010 that the charges against him in this case are a pack of lies. Such statements are clearly inadmissible hearsay and the defendant should be precluded from eliciting them. CONCLUSION For the foregoing reasons, the Court should preclude the defendant from offering evidence of his offers to cooperate with law enforcement after he left the United States in 2005, and from eliciting his own prior out-of-court statements during the cross-examination of the Governments witnesses and direct examination of the defense witnesses at trial. Dated: New York, New York November 14, 2013 Respectfully submitted, PREET BHARARA United States Attorney By: __________/s/______________ Christian R. Everdell Ian McGinley Assistant United States Attorneys (212) 637-2556/2257