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Case: 4:11-cr-00168-LRR Doc.

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Filed: 05/02/12 Page: 1 of 9 PageID #: 3556


No. 4: 11 CR 168 LRR

DEFENDANT SIGILLITOS CORRECTED MOTION FOR NEW TRIAL NOW COMES Defendant Martin T. Sigillito, by and through his attorney, Douglas P. Roller, and, pursuant to Rule 33, Federal Rules of Criminal Procedure and this Courts May 2, 2012 Order files this corrected Motion for New Trial and moves this Court for entry of an order granting Defendant a new trial. In support thereof, Defendant states as follows. DENIAL OF DUE PROCESS 1. Defendant respectfully submits that a new trial is warranted on the grounds that

Defendant was denied his Fifth Amendment right to due process as a result of sustained governmental misconduct. A. 2. TRIAL A number of instances of prosecutorial misconduct occurred at trial. Individually,

and certainly collectively, these instances denied Defendant due process and a new trial must be granted. Included are the following: a. Presentation of False Testimony On direct examination, Elizabeth Stadjuhar testified in response to prosecutors question that she had taken only $12,000 from the lenders ACH account. On cross-examination, she admitted she had actually stolen $81,000.

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She also testified that at the time she was asked the question on direct examination, she and the prosecutor were both aware of the correct amount. b. Improperly influencing the jury by referencing Bernard Maduff After the Court admonished the government prosecutor the first time Bernard Maduffs name was mentioned (a convicted defendant in a notorious Ponzi scheme), a different prosecutor asked a question which elicited another reference to Bernard Maduff. The double reference to Maduff was particularly prejudicial because of the constant reference to "Ponzi scheme" throughout the trial. c. Statement of Personal Belief During his examination of the defendant the prosecutor expressed his belief that defense witness Mindy Finan had lied during her testimony. d. Intimidation of Defense Witness. Prior to trial and during trial, the prosecutor consistently intimated that defense expert witness John Laughlin had committed perjury before the grand jury and would therefore necessarily have to assert his Fifth Amendment privilege on cross-examination. The prosecutor's position caused Laughlin to request that he not be called as a witness on behalf of the Defendant. e. Allowing Witnesses to Discuss Testimony Many of the government witnesses attended the majority of the entire trial. These witnesses could be seen talking in groups to one another and often speaking to Agent Cosentino as a group. As Rollie Baer testified, witness Phil Rosemann even took a number of witnesses out to dinner. Although Rollie Baer denied

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discussing his testimony or the testimony of other witnesses during breaks in the trial, or at the Rosemann dinner, his denial of ever discussing the testimony of other witnesses exceeded the bounds of credibility. Some witnesses even used the same descriptive phrases such as bogus. Because of the potential for such discussions to modify a witnesss testimony, the Defendant requests an evidentiary hearing on this issue. Witnesses Pat Fielder, Linda Givens, Phil Rosemann, Rollie Baer and Dick Aguilar were among the witnesses engaging in this conduct. f. Structuring Witness Testimony The plea agreements of key witnesses Brown and Smith contained virtually identical language in the Factual Basis section of each agreement. Furthermore, each Factual Basis contained language in large measure identical to the language used in the indictment, including descriptive headings. Given the disparate roles of Smith and Brown in the alleged conspiracy, the prosecutors preparation of the factual basis in each plea agreement was obviously a means of ensuring compatible testimony by each witness, consistent with the indictment. The Plea Agreements thus provided a road map of each witnesss testimony. Such structuring of testimony is clearly improper and prejudicial to Defendant. A review of the transcript of the trial may reveal additional instances of structuring witness testimony.

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B. 3.

PRETRIAL 1 The violation of defendants due process rights during the course of the trial is

consistent with government conduct prior to the trial and prior to the return of the indictment. For example, the government did not follow the procedure set out in 21 U.S.C. 853(e)(1)(B), requiring a pre-seizure hearing prior to the seizure of personal property subject to forfeiture. The government, however, was not interested in such a pre-deprivation hearing, even though Mr. Sigillito had been aware of the investigation and the governments interest in his collection of ancient books and maps, antique coins, jewelry and other assets since May 24, 2010, five weeks before the seizures on July 1, 2010. An argument could be made that a pre-seizure hearing would not have been appropriate for the May 24, 2010 seizures because a search warrant for evidence was executed on the same day. However, such a situation did not exist on July 1, 2010 when the search warrant only sought the items to be seized. No urgency for seizure could have existed since the FBI took no action whatsoever to preserve the assets for almost five weeks after the search of the law office. Furthermore, as testified to at trial by David Helfrey and Mindy Finan, an understanding had already been reached between AUSA Reap and Mr. Helfrey that the items on the insurance list would not be transferred or sold without prior approval of the government. 4. However, Agent Cosentinos affidavit set forth no facts to support the conclusion

that a restraining order would not be sufficient to assure the availability of the property for forfeiture. The only plausible reason for obtaining a warrant for the July 1 and 2 searches was to retaliate for counsels vigorous representation of Mr. Sigillito. For example, AUSA Holtshouser was very displeased with a June 25, 2010 email to the lenders from Mr. Sigillito, transmitted
The factual assertions in this section of the Motion, is derived from Defendants Motion for Return Seized Property, in Sigillito v. United States, No. 4:10-MC-461, a collateral proceeding which preceded the Indictment in this case. The Motion for Return of Seized Property is hereby incorporated herein by reference.

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through counsels office, which contained quotes from Mr. Holtshousers prior emails. AUSA Holtshousers displeasure with the June 25, 2010 email is memorialized in Holtshousers July 19, 2010 letter to Mr. Helfrey. Holtshouser states in his July 19, 2010 letter that he received a copy of the email on June 29, 2010. The July 1, 2010 warrants were obtained on June 30, 2010. Given the time period from May 24, 2010 to June 30, 2010 in which the government did nothing whatsoever to secure the property identified on the insurance list that was in Mr. Sigillitos house, the sudden execution of the seizure warrant after receiving a copy of Sigillitos June 25, 2010 email provides strong evidence that the July 1, 2010 searches and seizures were to retaliate for the June 25, 2010 investor email. 5. The execution of a warrant for the July 1 and 2 seizures for retaliatory reasons

was merely one instance of the governments relentless and wide ranging effort to deprive Defendant of his constitutional rights. In the post-seizure investigation, the following acts of governmental misconduct also occurred: 1) attempting to influence witnesses by providing these witnesses with erroneous information; 2) intimidating Mr. Sigillitos wife, Margaret Finan, in an attempt to have her provide evidence against her husband and breed discontent in their marriage; 3) filing and executing search and seizure warrants that are such shams that they are defective on their face; 4) threatening prosecution to a member of the clergy in Texas, and possible defense witness, simply because he was attempting to raise money for Mr. Sigillitos defense; 5) threatening to speed up the return of an indictment if Mr. Sigillito or his wife talked to potential witnesses (lenders in the BLP), even though many of these witnesses were friends, family, business associates and social acquaintances; 6) implicitly threatening defense counsel with prosecution; 7) seizing attorneys fees in contravention of Department of Justice policy, and; 8)

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attempting to influence witnesses in a corresponding civil case in an effort to disqualify counsel for Mr. Sigillito. 6. These pretrial actions by the government reflect not only an interference with the

defendants due process rights prior to trial, but also provides strong evidence that the governmental misconduct during the trial was not mere negligence or mistake, but part of a consistent pattern of violating defendant's due process rights. This pattern, coupled with the above-enumerated instances of prosecutorial misconduct during the trial, compels the granting of a new trial. SIXTH AMENDMENT VIOLATIONS 7. Many of the acts described above also implicate a violation of defendants Sixth

Amendment rights. For example, the implicit threat of prosecution of David Helfrey, one of Mr. Sigillito's counsel at the time, had to have been designed to attempt to force Mr. Helfrey to withdraw from representation of Mr. Sigillito or to intimidate Mr. Helfrey in such a manner as to preclude his vigorous defense of Mr. Sigillito. Seizing property contrary to statutory provisions as noted above and opposing a post seizure hearing regarding release of property for payment of attorneys fees, likewise interfered with Defendants Sixth Amendment right to counsel. Similarly, the seizure of attorneys fees contrary to Department of Justice policy also interfered with the defendants six amendment rights. 8. The deprivation of Mr. Sigillitos ability to pay for counsel of his choosing,

specifically David Helfrey, prevented Mr. Sigillito from having his first choice of counsel to represent him at trial. Not satisfied with precluding Mr. Helfrey's representation, the government attempted to have Mr. Helfrey's then partner, Douglas Roller, disqualified from representing Sigillito in a related civil case.

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The efforts to deprive Mr. Sigillito of Mr. Roller's services was evident in the

government's attempt to disqualify Mr. Helfrey and Mr. Roller from representing Mr. Sigillito in his efforts to obtain funds from the seized property to pay for Mr. Helfrey and Mr. Roller's representation. These efforts continued when the Indictment was returned and the government opposed Mr. Rollers request to be appointed to represent Sigillito post indictment pursuant to the Criminal Justice Act because of Sigillitos lack of funds. The government also attempted to preclude Mr. Roller from being privately retained by encumbering Mrs. Laverne Sigillitos property. Mrs. Sigillito, defendants mother, was the only possible source of funds to privately retain Mr. Roller to represent the Defendant. Even when Mr. Roller was able to obtain a relatively small retainer from Defendants mothers redemption of two CDs, the government still attempted to disqualify Mr. Roller. 10. This interference with Mr. Sigillitos choice of counsel resulted in Mr. Sigillito

being represented by only one of the two attorneys that he desired to represent him at trial. The case should have been defended by two attorneys, particularly in light of the government having assigned three prosecutors and the Federal Defender likewise assigning three attorneys. 11. This interference with Defendants Sixth Amendment right to choice of counsel,

coupled with the deprivation of Defendants Fifth Amendment due process rights as described above clearly warrants the granting of a new trial. RESTRICTION OF CROSS EXAMINATION 12. In response to the government's motion In Limine, the court precluded the

defendant from demonstrating to the jury the bias of witness Mary O'Sullivan arising from her familial relationship with a supervisor in the United States Attorneys Office. Defendant,

therefore, was not only precluded from establishing to the jury Ms. O'Connells strong

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motivation to shade her testimony in favor of the government, but also precluded Defendant from demonstrating the reason for the government's rush to judgment in this case. 12. Defendant was therefore prejudiced by this restriction and, when coupled with the

above described governmental misconduct and interference with defendant's right to counsel, deprived Defendant of a fair trial. A new trial on this basis should, therefore, should be granted. SUFFICIENCY OF THE EVIDENCE 13. For the reasons set forth in Defendants Motions for Judgment of Acquittal, the

government failed to present any evidence, direct or circumstantial that Defendant knowingly made false representations and/or intended to defraud anyone. When Defendants testimony is taken into account, the evidence is overwhelming that Defendant did not have an intent to defraud. WHEREFORE, Defendant respectfully requests that his Motion for New Trial be granted.

Respectfully, submitted,

/s/ Douglas P. Roller Douglas P. Roller #50262MO Roller Law Office LLC 2507 January Avenue St. Louis, Missouri 63110 (314) 645-7228 (314) 645-7235 (fax) Attorney for Defendant Martin Sigillito

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 2nd day of May, 2012, the foregoing was filed electronically with the Clerk of Court to be served by operation of the Courts electronic filing system to all counsel of record:

/s/ Douglas P. Roller