Beruflich Dokumente
Kultur Dokumente
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal No. TDC-18-0012
)
MARK T. LAMBERT, )
)
Defendant. )
)
Defendant Mark Lambert, by and through undersigned counsel, respectfully submits this
supplemental memorandum of law in support of his motion for a second continuance of trial
(ECF No. 71) based on the government’s filing of a second superseding indictment at the eve of
trial.
BACKGROUND
After a nine year investigation, including a failed attempt to secure a criminal complaint,
the government finally indicted Mr. Lambert on January 10, 2018. See Indictment (ECF No. 1).
According to the indictment, Rodney Fisk, the former president of Transport Logistics
International, Inc. – now also known to have been a covert FBI operative – allegedly entered into
a bribery conspiracy with Vadim Mikerin, the purported bribe recipient, in 2004. See Indictment
at 6, ¶17. The indictment further alleged that Mr. Lambert joined the preexisting conspiracy
between Mr. Fisk and Mr. Mikerin in 2009. See id. at 4, ¶12.
Over a year later, in April 2019, the government filed with the Court a superseding
indictment. See Superseding Indictment (ECF No. 58). The superseding indictment was filed
Case 8:18-cr-00012-TDC Document 82 Filed 05/23/19 Page 2 of 6
shortly after Mr. Lambert’s unopposed first request for a trial continuance, and less than three
months from the current trial date of June 18. In the superseding indictment, the government
amended the start date of the alleged preexisting conspiracy between Mr. Fisk and Mr. Mikerin
from 2004 to 2009. See Redlined Superseding Indictment at 7, ¶17 (ECF No. 60). The
superseding indictment continued to allege that Mr. Lambert joined the conspiracy in 2009. See
Finally, yesterday, less than a month before trial is scheduled to begin and, once again,
three days after Mr. Lambert sought a second continuance of trial, the government provided Mr.
Lambert with the redline of a second superseding indictment which was filed just minutes ago.
See May 22, 2019 Email of the U.S. Department of Justice (attached as Exhibit 1). In this
second superseding indictment, the government made significant changes to its allegations, by
amending both the start date of the alleged preexisting conspiracy between Mr. Fisk and Mr.
Mikerin, from 2009 back to 2007, as well as the critical date that Mr. Lambert is alleged to have
joined such conspiracy, from 2009 back to 2007. See Redlined Second Superseding Indictment
at 4, ¶12 and 6, ¶17 (ECF No. 81). This chart summarizes the government’s changes:
Indictment
(filed January 10, 2018) 2004 2009
Superseding Indictment
(filed April 3, 2019) 2009 2009
Second Superseding
Indictment
(filed May 23, 2019)
2007 2007
2
Case 8:18-cr-00012-TDC Document 82 Filed 05/23/19 Page 3 of 6
ARGUMENT
The Court should grant Mr. Lambert’s request for continuance based solely on the
Lambert’s May 20 motion for a second continuance of trial, and as discussed with the Court
late yesterday, May 22, now significantly changes the government’s theory of the case,
specifically as regards to the critical and disputed facts surrounding Mr. Fisk’s alleged recruiting
of Mr. Lambert into Mr. Fisk’s purported preexisting conspiracy with Mr. Mikerin. Mr.
Lambert, of course, denies ever joining a conspiracy with Mr. Fisk or others, and the ultimate
factual question of how, when and by what means the government claims that he joined the
conspiracy is critical to Mr. Lambert’s defense. Thus, because the government significantly
changed its allegations against Mr. Lambert on the very eve of trial, without a continuance Mr.
Lambert would be prevented from making any effective use of the voluminous discovery
materials that he has received to prepare for trial and challenge the government’s new theory of
the case. In fact, now less than a month from trial, Mr. Lambert will have no meaningful
opportunity to properly review, again, the millions of pages produced by the government, to
prepare a new defense to oppose the government’s last-minute allegations that he somehow in
some undisclosed way joined the conspiracy two years earlier that had ever been previously
alleged. Accordingly, the court should continue trial so that Mr. Lambert may have sufficient
time to analyze, again, the government’s discovery materials in light of the government’s 11th
3
Case 8:18-cr-00012-TDC Document 82 Filed 05/23/19 Page 4 of 6
Indeed, for over a year and a half, the government has consistently argued that Mr.
Lambert allegedly joined the preexisting conspiracy between Mr. Fisk and Mr. Mikerin in 2009.
Now, however, the government is alleging for the very first time that Mr. Fisk actually recruited
Mr. Lambert into the alleged conspiracy in 2007, over two years earlier. According to the
government, this significant new allegation purports to merely “clarify” the conspiracy period.
May 22, 2019 DOJ Email. That is simply not true. In fact, the government is effectively
changing its theory of the case regarding one of the most critical and disputed facts at issue in
this case: whether, when and under what circumstances, Mr. Lambert allegedly joined the
conspiracy. And the government is doing so at the very eve of trial and without prior notice to
Therefore, to refute the government’s new allegations, Mr. Lambert will now be required
to revisit both his case and trial preparation, which has been ongoing for many months. In fact,
Mr. Lambert’s counsel has worked tirelessly over the past year and half to prepare a case that
will challenge the government’s allegations based on the government’s representations that it
believed that Mr. Lambert joined the alleged conspiracy in 2009. But since the government has
now changed its theory of the case, Mr. Lambert’s counsel must analyze, again, the over two
million records that the government previously produced to him to determine whether these
records include documents that may be material or exculpatory to Mr. Lambert in light of the
government’s new theory of the case. Of course, as the Court knows, this massive endeavor will
1
While the government informed Mr. Lambert on May 16 that it intended to change the
“timeframe” of the preexisting conspiracy between Mr. Fisk and Mr. Mikerin, it failed to note
the absolutely critical fact that it would also amend its theory of the case by changing the time it
alleges Mr. Lambert joined the purported conspiracy. See May 16, 2019 Email of the U.S.
Department of Justice (attached as Exhibit 2).
4
Case 8:18-cr-00012-TDC Document 82 Filed 05/23/19 Page 5 of 6
be in addition to the necessary review of the approximately one million pages that the
government’s theory of the case as to critical allegations, and because the government
significantly changed its allegations against Mr. Lambert at the very eve of trial, the court should
continue trial not only because the government delayed production of discovery material, but
also so that Mr. Lambert may have sufficient time to analyze, again, the government’s discovery
materials to prepare a defense to the government’s new claims against Mr. Lambert.
CONCLUSION
For the reasons set forth above, Mr. Lambert respectfully requests that the Court grant his
5
Case 8:18-cr-00012-TDC Document 82 Filed 05/23/19 Page 6 of 6
CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that on this 23rd date of May 2019, I caused
the foregoing supplemental memorandum of law in support of motion for a second continuance
of trial based on the government’s 11th hour filing of a second superseding indictment to be
filed electronically using the Court’s CM/ECF system, which automatically sent a notice of