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Case 3:16-cr-01545-BEN Document 114 Filed 04/13/17 PageID.

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1 TIMOTHY A. SCOTT
California Bar No. 215074
2 LAW OFFICES OF TIMOTHY A. SCOTT, APC
3 1350 Columbia Street, Suite 600
4 San Diego, California 92101
Telephone: (619) 794-0451
5 Facsimile: (619) 652-9964
6 Email: tscott@timscottlaw.com
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Attorneys for Jeffrey Spanier
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9 UNITED STATES DISTRICT COURT
10 SOUTHERN DISTRICT OF CALIFORNIA
11 (HONORABLE ROGER T. BENITEZ)
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13 UNITED STATES OF AMERICA, )
) Case No.: 16-CR-01545-BEN
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Plaintiff, )
15 vs. ) Notice of Appeal
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Jeffrey Spanier, )
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18 Defendant. )
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Please take notice that defendant Jeffrey Spanier hereby gives notice of
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appeal to the United States Court of Appeals for the Ninth Circuit from the
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judgment of conviction and the sentence entered by the District Court on April 13,
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2017. Mr. Spanier is in custody serving his sentence of 96 months. Transcripts
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will be required.
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26 Dated: April 13, 2017
27 Respectfully Submitted,

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s/ Timothy A. Scott

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2 TIMOTHY A. SCOTT
LAW OFFICES OF TIMOTHY A.
3 SCOTT, APC
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5 Attorneys for Mr. Spanier

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Case 3:16-cr-01545-BEN Document 114-1 Filed 04/13/17 PageID.1282 Page 1 of 1

1 CERTIFICATE OF SERVICE
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3 I hereby certify that I am over the age of eighteen and am not a party to this
4 action. On todays date, I filed a true and correct copy of the attached document
5 through this Courts Electronic Filing System (ECF), and the system indicated that
6 the filing had been received successfully. By virtue of the ECF system, all
7 interested parties were served electronically upon filing of this document.
8 I declare under penalty of perjury that the foregoing is true and correct,
9 dated: April 13, 2017.
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11 s/ Timothy A. Scott
12 TIMOTHY A. SCOTT
13 Attorney at Law
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Case 3:16-cr-01545-BEN Document 113 Filed 04/10/17 PageID.1271 Page 1 of 9

1 ALANA W. ROBINSON
Acting United States Attorney
2
JOSEPH J.M. ORABONA
3 Assistant U.S. Attorney
California State Bar No. 223317
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Office of the U.S. Attorney
5 880 Front Street, Room 6293
6 San Diego, CA 92101
Tel: (619) 546-7951
7 Email: joseph.orabona@usdoj.gov
8 Attorneys for the United States
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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12 UNITED STATES OF AMERICA, Criminal Case No. 16CR1545-BEN
13 Plaintiff, UNITED STATES RESPONSE IN
14 OPPOSITION TO DEFENDANTS
v. MOTION FOR BAIL PENDING APPEAL
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16 JEFFREY R. SPANIER, Date: April 13, 2017
Time: 9:00 a.m.
17 Defendant. Place: Courtroom 5A
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The Honorable Roger T. Benitez
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21 The plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Alana
22 W. Robinson, Acting United States Attorney, and Joseph J.M. Orabona, Assistant U.S.
23 Attorney, hereby files its Response in Opposition to Defendant JEFFREY R. SPANIERs
24 (Spaniers) Motion for Bail Pending Appeal (Docket No. 104), and moves for REMAND
25 at the time of sentencing. This Response in Opposition is based upon the files and records
26 of this case, as well as the accompanying statement of facts and memorandum of points
27 and authorities. For all of the following reasons, the Court should deny Spaniers motion
28 and REMAND him at the time of sentencing.
Case 3:16-cr-01545-BEN Document 113 Filed 04/10/17 PageID.1272 Page 2 of 9

1 I
2 INTRODUCTION
3 On July 1, 2016, Spanier was indicted on 19 counts of fraud, including conspiracy,
4 mail fraud, wire fraud and securities fraud. On October 28, 2016, a Superseding Indictment
5 was returned charging Spanier with two counts one count of conspiracy and one count of
6 securities fraud. Prior to trial, the United States moved to merge the two indictments, and
7 went to trial on Counts 1 and 2 of the Superseding Indictment for conspiracy and securities
8 fraud, and Counts 2 through 13, 15 and 16 of the Indictment for mail fraud and wire fraud.
9 On November 21, 2016, the jury returned verdicts of guilty on all counts. After trial, the
10 Court permitted Spanier to remain on bond without any increase in the amount.
11 Now, prior to sentencing, Spanier moves for bond pending appeal. However,
12 Spanier cannot meet the clear and convincing standard of proof nor can he show that his
13 appeal is not for the purpose of delay or raises a substantial question of law or fact.
14 Moreover, the victims in this case have suffered enough and have waited too long for
15 justice to be served. Spanier began committing the crimes for which he was convicted more
16 than 14 years ago. He was arrested for said crimes more than 5 years ago and has been on
17 bond ever since. He has had three jury trials where two of those juries found him guilty of
18 all crimes that he was charged. Further delaying Spaniers remand into custody only
19 underscores the old adage justice delayed, is justice denied. For all these reasons, the
20 Court should deny Spaniers motion and remand him into custody.
21 II
22 MEMORANDUM OF POINTS & AUTHORITIES
23 When a defendant has been found guilty and sentenced to a term of imprisonment,
24 detention is the rule, not the exception. See 18 U.S.C. 3143; United States v. Abuhamra,
25 389 F.3d 309, 319 (2d Cir. 2004) (Section 3143 establishes a presumption in favor of
26 detention). The Court shall order the defendant detained unless the defendant can
27 establish: (1) by clear and convincing evidence that he is not a flight risk or danger to the
28 community and (2) that the appeal is not for purpose of delay and raises a substantial
Response in Opposition to Motion for 2 16CR1545-BEN
Bail Pending Appeal
Case 3:16-cr-01545-BEN Document 113 Filed 04/10/17 PageID.1273 Page 3 of 9

1 question of law or fact likely to result in reversal, a new trial, a sentence that does not
2 include any imprisonment, or a reduced sentence of imprisonment less than the expected
3 duration of the appeal process. 18 U.S.C. 3143(b); see also United States v. Handy, 761
4 F.2d 1279, 1283 (9th Cir. 1985). Spanier has the burden to establish all of these elements.
5 See United States v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990). Following his third trial,
6 he simply cannot meet these standards.
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A. Spaniers appeal will not result in reversal, a new trial, a sentence that
8 does not include imprisonment, or a reduced sentence of imprisonment
less than the duration of his appeal as it relates to the Conspiracy count
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10 Even assuming Spanier can show he is not a flight risk, he is not a danger, he is not
11 appealing for purposes of delay, and he is raising a substantial question of law or fact, he
12 should be remanded because his appeal will not result in a reversal, a new trial, a sentence
13 that does not include imprisonment, or a reduced sentence of imprisonment less than the
14 duration of his appeal as it relates to Count 1 of the Superseding Indictment Conspiracy.
15 The statute of limitations issue raised by Spanier was directly addressed by the Court in
16 the jury instructions and by the jury in their special findings made on the verdict form
17 associated with this count the jury had to make a special finding that an overt act was
18 committed on or after July 1, 2011. There were no challenges made by Spanier to the jury
19 instructions associated with the conspiracy count. Spaniers challenge under Shields deals
20 with the mail and wire fraud counts (Counts 2-18).
21 Moreover, the conspiracy count carries a maximum of 5 years in prison, and should
22 the Court sentence Spanier to at least 5 years in prison in this case, his appeal will not take
23 that long. Put simply, the fraud engaged by Spanier and his co-conspirators was so
24 extensive and so damaging to so many people a conspiracy where Spanier caused more
25 than $20 million in actual losses that Spanier is not likely going to receive a sentence less
26 than the expected duration of the appeal process. As such, no matter what happens with
27 regard to Spaniers challenges to the mail fraud, wire fraud, and securities fraud counts, he
28 will stand convicted of the conspiracy count.
Response in Opposition to Motion for 3 16CR1545-BEN
Bail Pending Appeal
Case 3:16-cr-01545-BEN Document 113 Filed 04/10/17 PageID.1274 Page 4 of 9

1 Thus, the Court should deny the motion for bail on this ground, and remand Spanier
2 into custody.
3 B. Now that Spanier Has Been Convicted by Two Separate Juries, He is a
Flight Risk and a Danger to the Community He Should be Remanded
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5 Spanier has the burden by clear and convincing evidence that after he is sentenced
6 that he will not pose a risk of flight or danger to the community. The Ninth Circuit has
7 upheld detention based upon danger that encompasses pecuniary or economic harm. See
8 United States v. Reynolds, 956 F.2d 192, 192 (9th Cir. 1992) (danger may, at least in some
9 cases, encompass pecuniary or economic harm); United States v. Lindsey, 654 Fed. Appx.
10 369, 373 (9th Cir. 2016) (unpublished) (finding that mortgage fraud showed defendant was
11 a danger to individuals and the community); United States v. Rotteveel, 2016 WL
12 7436393 (E.D. Cal. 2016) (unpublished) (finding that defendant who was sentenced to 40
13 months in prison for mortgage fraud posed an economic danger to the community and
14 denied the motion for bail pending appeal). Other appellate courts agree that danger to the
15 community can encompass economic or pecuniary harm. See United States v. Provenzano,
16 605 F.2d 85, 95 (3d Cir. 1979) (a defendants propensity to commit crime generally, even
17 if the resulting harm would be not solely physical, may constitute a sufficient risk of danger
18 to come within the contemplation of the Act); United States v. Santiago-Mendez, 599 F.
19 Supp.2d 95, 105 (D. Puerto Rico 2009) (The court is particularly conscious that the fact
20 that a person has been found guilty, beyond a reasonable doubt, to have committed a
21 criminal act certainly indicates dangerousness.); United States v. Moss, 522 F. Supp. 1033,
22 1035 (D.C. Pa. 1981) (It is generally agreed, of course, that a Court may refuse bail on
23 the ground that a defendant poses a threat to the community even though the threat is
24 pecuniary rather than physical.).
25 For example in Provenzano, the defendant had three federal felony convictions, all
26 dealing with some form of labor extortion or racketeering. 605 F.2d at 85-86. On the basis
27 of the unions largess toward the defendant during previous incarcerations and the
28 continued control exerted by the defendants family over the union, the district court denied
Response in Opposition to Motion for 4 16CR1545-BEN
Bail Pending Appeal
Case 3:16-cr-01545-BEN Document 113 Filed 04/10/17 PageID.1275 Page 5 of 9

1 release on the concern that if released the defendant would have an additional opportunity
2 to exercise a substantial and corrupting influence within the union. Id. at 96.
3 Here, two separate juries have found Spanier guilty of all counts involving a massive
4 fraud that resulted in losses over $100 million. These two juries found Spanier guilty of
5 conspiracy, securities fraud, mail fraud and wire fraud. In addition, both juries made a
6 special finding against Spanier as to criminal forfeiture. The victims of Spaniers fraud and
7 conspiracy suffered actual losses attributed to his co-conspirator Douglas McClain, Jr. that
8 exceeded $80 million. The loss attributed to Spanier exceeds $20 million. These economic
9 harms are substantial. Spanier poses a series risk of danger to the community, and he has
10 failed to present clear and convincing evidence to the contrary. On this ground, the Court
11 should deny bail and remand Spanier into custody.
12 Because Spanier has failed to carry his burden as to the issue of danger to the
13 community, the Court need not address whether Spanier is a risk of flight. See generally
14 Rotteveel, 2016 WL 7436393, n.1 (E.D. Cal. 2016) (citing United States v. Nicolo, 706 F.
15 Supp.2d 330, 337 (W.D.N.Y. 2010) (A defendants failure to establish any one of those
16 elements is adequate ground for denying a motion under 3143(b).). While Spanier was
17 previously sentenced to a substantial prison term following his second jury trial, appealed,
18 and made his court appearances thereafter, including his third trial and post-trial hearings,
19 the United States contends that once this Court imposes a new sentence which the United
20 States and probation officer agree should be 15 years in prison Spaniers risk of flight
21 greatly increases. Spanier has substantial ties to Canada and the surety currently resides in
22 Canada. This factor substantially increases Spaniers risk of flight. Spanier has not
23 presented any facts which establish by clear and convincing evidence that he is not likely
24 to flee now that he has been convicted a second time by a jury and faces a substantial prison
25 sentence. Thus, the United States contends that Spanier has failed to meet his burden as to
26 his risk of flight and the Court should remand him into custody on this ground.
27 / /
28 / /
Response in Opposition to Motion for 5 16CR1545-BEN
Bail Pending Appeal
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1 C. Spanier Has Not Raised a Substantial Question of Law or Fact


2 In summary, 1 in addressing the challenges to the mail fraud and wire fraud counts
3 (Counts 2-18 of the Indictment) with regards to Shields, Spaniers contentions lack merit.
4 Because the Court properly instructed the jury on the United States theory of the case a
5 theory based on affirmative misrepresentations and half-truths and not one based on pure
6 omissions 2 the Court properly denied to motions to dismiss and for a new trial on this
7 ground. The law of the case applied and a three-judge panel from United States v. Shields,
8 844 F.3d 819 (9th Cir. 2016) cannot overrule or reconsider the decision of a prior three-
9 judge panel that ruled on the exact same issue in this case United States v. Spanier, 637
10 Fed. Appx. 998 (9th Cir. 2016) [hereinafter Spanier I]. Moreover, Spanier failed to
11 preserve the issue raised in Shields because his proposed jury instruction is not only a
12 misstatement of the law, but is also devoid of any duty to disclose or trust relationship.
13 Nevertheless, assuming arguendo that Spanier somehow preserved this issue, the Court
14 correctly held that the decision in Shields does not apply to the facts of this case because
15 the United States theory was based upon affirmative misrepresentations and half-truths,
16 and not based solely on pure omissions.
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The United States has responded to the arguments made by Spanier in his motion for bond through
19 its prior responses in oppositions to said substantive issues. Rather than repeat those responses, the United
20 States incorporates them herein by reference.
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21 A misrepresentation is the act of making a false or misleading statement with the intent to
deceive. A false misrepresentation is a false statement known to be false and intended to induce a party
22 to detrimentally rely on it. Failure to correct a previous false statement is a misrepresentation.
23 A half-truth is a statement that conveys only part of the truth, especially one used deliberately
to deceive someone. A half-truth is essentially telling a lie by omission omitting certain facts that
24 make the statement the whole truth.
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A purse omission is absent an actual statement; it is a complete failure to make any statement.
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See In re Vivendi Sec. Litig., 838 F.3d 223, 239 (2d Cir. 2016) (distinguishing between a pure omission
27 from a half-truth noting that the pure omission is akin to remaining silent on an issue, whereby a
half-truth is making a statement that is misleading by virtue of what the speaker omits to disclose).
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Response in Opposition to Motion for 6 16CR1545-BEN
Bail Pending Appeal
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1 In analyzing whether a substantial question of law or fact has been raised for
2 purposes of bail pending appeal, the Court will answer two questions: (1) whether the
3 appellate issues raised by Spanier are substantial and (2) whether those issues are likely
4 to result in reversal. United States v. Handy, 761 F.2d 1279, 1280-81 (9th Cir. 1986).
5 [T]he word substantial defines the level of merit required in the question raised on
6 appeal, while the phrase likely to result in reversal defines the type of question that must
7 be presented. Id. A substantial question is one that is fairly debatable, and [l]ikely
8 to result in reversal means that if the substantial question is determined favorably to the
9 defendant on appeal, that decision is likely to result in reversal or an order for a new trial.
10 Id. The burden is on Spanier to overcome the presumption that he should be detained while
11 his appeal is pending. See United States v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990).
12 As contended in the United States prior responses in opposition, the statute of
13 limitations issues are not fairly debatable. The United States initially indicted Spanier
14 within the 60-day period following the final order of dismissal issued by Judge Miller. The
15 mail and wire fraud counts (Counts 2-18 of the original Indictment) were properly brought
16 within the 5-year statute of limitations. The conspiracy and securities fraud counts (Counts
17 1 and 2 of the Superseding Indictment) were also properly brought within the 6-year statute
18 of limitations. In fact, the parties addressed the statute of limitations issues with regards
19 to the conspiracy and securities fraud counts by including a finding of an overt act on or
20 after July 1, 2011 in the jury instructions and on the verdict form. Given the jurys specific
21 findings, this issue is not likely to result in reversal or an order for a new trial at least on
22 the conspiracy and securities fraud counts. Thus, Spanier should be remanded.
23 Based upon the arguments in the United States prior responses in opposition and as
24 discussed above, the jury instruction issue is also not fairly debatable. The Court properly
25 instructed the jury in this case as to the elements of conspiracy, mail fraud, wire fraud, and
26 securities fraud. The Court properly relied upon the law of the case and the order of the
27 Ninth Circuit, as well as relying upon the model jury instructions. This issue is not likely
28 to result in reversal or an order for a new trial. Thus, Spanier should be remanded.
Response in Opposition to Motion for 7 16CR1545-BEN
Bail Pending Appeal
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1 III
2 CONCLUSION
3 For the reasons set forth above, the Court should deny Spaniers motion for bond
4 pending appeal, and immediately remand him into custody at the time of sentencing.
5 DATED: April 10, 2017 Respectfully submitted,
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ALANA W. ROBINSON
7 Acting United States Attorney
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9 /s/ Joseph J.M. Orabona
JOSEPH J.M. ORABONA
10 Assistant United States Attorney
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Response in Opposition to Motion for 8 16CR1545-BEN
Bail Pending Appeal
Case 3:16-cr-01545-BEN Document 113 Filed 04/10/17 PageID.1279 Page 9 of 9

1 UNITED STATES DISTRICT COURT


2 SOUTHERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA, Criminal Case No. 16CR1545-BEN
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5 Plaintiff,
CERTIFICATE OF SERVICE
6 v.
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JEFFREY R. SPANIER,
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9 Defendant.

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I, Joseph Orabona, the undersigned declare under penalty of perjury, that I am over
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the age eighteen years and I am not a party to the above-entitled action; that I served the
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following document: United States Response in Opposition to the Motions for Bail
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Pending Appeal in the following manner: by electronically filing with the U.S. District
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Court for the Southern District of California using its ECF System:
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16 1. Timothy Scott
Email: tscott@timscottlaw.com
17 Attorney for Defendant
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I declare under penalty of perjury that the above is true and correct.
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Executed on April 10, 2017.
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/s/ Joseph J.M. Orabona
21 JOSEPH J.M. ORABONA
22 Assistant United States Attorney
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