This is a must read!
Robert Raymond wrote:
Hello Everyone,
If one wants to understand clearly where you stand in the larger scheme of things in relation to your government then this case is the perfect study of of what can happen. You don’t neccesarily have to be a criminal to find yourself on the wrong end of an indictment. The government sans, an IRS agent, who by herself was nothing special, used an American business family to advance her career by fabricating a case against innocent people. The sad part is, that if you didn’t have the money, which most people don’t, to disassemble the case and discover the lies, you would be serving several years in a penitentary for crimes you did not commit. Please take time if you can and read the misconduct articulated in the memorandum to understand the injustice committed in your name by your government. If you are as disturbed as I was then pass this on to your friends.
RR
Begin forwarded message:
Hey Bob:
Attached below is our motion to dismiss the indictment with prejudice in our Marchelletta Atlanta case. I did not defend their case at the trial in 2007, but was brought in for sentencing consultation and appeal in early 2008. We got them bond pending appeal, then after two years of appellate litigation, including a rehearing the 11th Circuit granted in October of 2010, the 11th Circuit Court of Appeals threw out all the convictions two days before Christmas on December 22, 2010. (The Marchellettas were in the middle of their company Christmas party when I called them to advise the 11th Circuit had thrown out all the convictions . . . that was really something).
The government’s been posturing for a retrial ever since, and when the judge saw the parties’ Joint Status Report on August 1st – which included our intention to file a motion to dismiss the indictment for outrageous government misconduct, our contemplated motion to continue the September 24th trial date, and or statement that the government still hadn’t complied with discovery after 3 and 1/2 years – the judge took action this past Thursday, the 2nd, and ordered us to file the whole tamale by this past Monday at High Noon, giving the government only 48 hours to respond (by Noon today).
The government has spent untold millions of dollars persecuting the Marchellettas for over twelve years, and now the IRS and the U.S. Attorney’s Office for the Northern District of Georgia want to retry the case. The perversity of that position is stunning, given the unconscionable misconduct during the investigation, indictment, and prosecution of the case – going back to 2000 – and the serial misconduct continues to this very day.
Please circulate far and wide if you will, Bob, because my clients want everyone to know what has happened to them at the hands of the IRS and a corrupt U.S. Attorney’s Office over the past twelve years. Perhaps you might even email your entire list with this brief introduction and the attached filings. People really need to see what’s going on.
Thank you, and
Best regards,
Robert G. Bernhoft, Esquire
The Bernhoft Law Firm, S.C.
1220 Colorado Street, Suite 440
Austin, Texas 78701
THE MARCHELLETTAS’ MOTION TO DISMISS THE INDICTMENT FOR OUTRAGEOUS GOVERNMENT MISCONDUCT
Gerard Marchelletta, Jr. and Gerard Marchelletta, Sr. (the “Marchellettas”), by and through counsel of record, Robert G. Bernhoft, hereby respectfully move the court to dismiss this case for outrageous government misconduct. This motion is filed pursuant to the Due Process Clause of the Fifth Amendment. This motion is based on the memorandum of points and authorities, the supporting declaration and exhibits and the record in this and other related cases. The memorandum of points and authorities is filed as a separate document because of its length.
The memorandum of points and authorities.
We apologize for the problems with the format due to the FootNotes (FN). But we are sure that if you want to get the wonderful yet sad information below and have more intelligence than a Government Employee you will be able to figure it out.
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) )
GERARD MARCHELLETTA, JR., a/k/a Jerry Marchelletta, Jr., ) GERARD MARCHELLETTA, SR., ) a/k/a Jerry Marchelletta, Sr., and ) THERESA KOTTWITZ, ) ) Defendants. ) )
) Case No. 1:07-CR-107-TCB
THE MARCHELLETTAS’ MEMORANDUM OF FACTS AND LAW IN SUPPORT OF THEIR MOTION TO DISMISS THE INDICTMENT FOR OUTRAGEOUS GOVERNMENT MISCONDUCT
Gerard Marchelletta, Sr. and Gerard Marchelletta, Jr. (hereinafter the “Marchellettas”), have moved this court to dismiss the indictment for outrageous government misconduct, and also requested an evidentiary hearing to determine the full scope of the flagrant misconduct, so that a complete and accurate record can be made to support dismissal with prejudice.
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TABLE OF CONTENTS
TABLE OF CONTENTS …………………………………………………………………………….. ii TABLE OF AUTHORITIES …………………………………………………………………………v INTRODUCTION………………………………………………………………………………………..1 ARGUMENT ………………………………………………………………………………………………6
I. A RETRIAL WOULD VIOLATE THE MARCHELLETTAS’ FUNDAMENTAL FIFTH AND SIXTH AMENDMENT RIGHTS……………6
A. The Government Cannot Discharge its Discovery Obligations Under Rule 16, Brady, Giglio, and Jencks, and a Retrial Would Therefore Constitute a Due Process Violation. ………………………………………………….13
1. The prosecution deceived and misled the court and the Marchellettas during the CBP/ICE FOIA litigation, with misrepresentations of material fact upon which the court relied in granting summary judgment to the agency. ………………………………………………………………..16
2. The prosecution must rely upon IRS SA Bergstrom’s records to discharge its discovery obligations, and given Bergstrom’s documented perjury, obstruction, deception, and document concealment, the prosecution cannot certify that it can produce all discovery required by the Constitution and Laws of the United States, rendering any retrial a per se Due Process violation. ………………………..21
3. The prosecution continues to violate its discovery obligations respecting the retrial, with interminable disclosure delays and a continued failure to disclose essential documents and information……..35
a.
IRS CID Atlanta requested an FBI Organized Crime Strike Force investigation against Jerry Marchelletta, Jr. and Circle in early 2003, and then actively participated in an Organized Crime/La
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B.
Cosa Nostra investigation into money laundering, mail fraud, and wire fraud, with SA Bergstrom taking lead for IRS. ………………………36
b. In 2003, former AUSA Paul Monnin brought in DOL-OIG Special Agent John Jupin and IRS SA Bergstrom to participate in a criminal investigation of unindicted co-conspirator George Gorman and his company, Eagle Managed Subcontractors, which came to include Jerry Marchelletta, Jr. and Circle as targets, if they were not the
true targets all along. …………………………………………………………………40
c. IRS SA Bergstrom and DOL-OIG SA Jupin worked intimately with the Southeastern Carpenters Regional Council (“SCRC”) during the investigation of the Marchellettas and Circle, using SCRC undercover operatives, information sharing, “trash runs,” and multiple personal meetings with high-ranking union officials to further their criminal investigation. ……………………………………………..50
The Prosecutors have Failed to Disclose Substantial Brady, Giglio, and Jencks information, Mandatory Discovery They’ve Known About at Least since October 4, 2010……………………………………………………………..54
II. A RE-TRIAL HERE WOULD CONSTITUTE AN UNCONSCIONABLE MISCARRIAGE OF JUSTICE, AND THE COURT SHOULD EXERCISE ITS SUPERVISORY POWER AND DISMISS THIS CASE WITH PREJUDICE TO DETER FUTURE ILLEGAL CONDUCT, PROTECT THE PERCEPTION AND ACTUAL INTEGRITY OF OUR FEDERAL CRIMINAL JUDICIAL PROCESS, AND TO PREVENT THAT MISCARRIAGE OF JUSTICE………………….57
A.
B.
Massive Discovery Violations, Streaming Perjury from the Two Lead Special Agents and Other Prosecution Witnesses, False Statements to the Court by the Prosecutors, and False and Misleading Statements During Opening Statement and Closing Argument Rendered the First Trial an Epic Fraud, From Start to Finish…………………………………………..64
New Evidence Obtained Since the Rule 33 Filing Shows that SA Bergstrom Obstructed Justice by Threatening a Witness not to Pursue
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a Lawful Course of Action in Order to Protect Her False Theory of Criminality. ……………………………………………………………………………………66
C. Deterrence of Future Misconduct and the Fact the Marchellettas would be Irreparably Prejudiced by any Retrial Strongly Counsel Dismissing this Indictment with Prejudice. …………………………………………………………69
CONCLUSION ………………………………………………………………………………………….71
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Cases
TABLE OF AUTHORITIES
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Bell v. Haley, 437 F.Supp.2d 1278 (M.D. Ala. 2005)………………………………………12 Bowen v. Maynard, 799 F.2d. 593 (10th Cir. 1986) ………………………………………….9 Brady v. Maryland, 373 U.S. 83 (1963)………………………………………………….7, 8, 12 Elkins v. United States, 364 U.S. 206 (1960)………………………………………………….58 Giglio v. United States, 405 U.S. 150 (1972)…………………………………………..7, 8, 10 Kyles v. Whitley, 514 U.S. 419 (1995) …………………………………………………….passim Lindsey v. King, 769 F.2d 1034 (5th Cir. 1985)………………………………………………..9 Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983) …………………………………………….11 United States v. Aguilar, 831 F.Supp.2d 1180 (C.D. Cal. 2011) ……………………….59 United States v. Arnold, 117 F.3d 1308 (11th Cir. 1997) …………………………………10 United States v. Bagley, 105 S. Ct. 3375 (1985)………………………………………..7, 8, 9 United States v. Beasley, 575 F.2d 626 (5th Cir. 1978) ……………………………………11 United States v. Beers, 189 F.3d 1297 (10th Cir. 1999) …………………………………..11 United States v. Breslin, 916 F.Supp. 438 (E.D. Pa. 1996)……………………………….60 United States v. Burr, 25 F.Cas. 30 (C.C.D. Va. 1807) ……………………………………..7 United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008) ……………….12, 58, 61, 63 United States v. Dollar, 25 F.Supp.2d 1320 (N.D. Ala. 1998) …………………….13, 62
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United States v. Hasting, 461 U.S. 499 (1983) ……………………………………………….58 United States v. Hogan, 712 F.2d 757 (2nd Cir. 1983)…………………………………….59 United States v. Holloway, 778 F.2d 653 (11th Cir. 1985) ……………………………….58 United States v. Jennings, 960 F.2d 1488 (9th Cir. 1992) ………………………………..11 United States v. Jordan, 316 F.3d 1215 (11th Cir. 2003) ………………………….8, 9, 58 United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) ………………………….59, 62, 63 United States v. Leung, 351 F.Supp.2d 992 (C.D. Cal. 2005) …………………………..61
United States v. Lopez-Avila, 678 F.3d 955 (9th Cir. 2012) ………………………..59, 63
United States v Lopez-Avila, Case No. 4:10-cr-00035-CKJ-HCE (D.C. Ariz.)……71
United States v. Lyons, 352 F.Supp.2d 1231 (M.D. Fla. 2004) ……………………13, 61 United States v. O’Keefe, 825 F.2d 314 (11th Cir. 1987) …………………………………58 United States v. Ramming, 915 F.Supp. 854 (S.D. Tex 1996)…………………………..61 United States v. Ross, 372 F.3d 1097 (9th Cir. 2004) ………………………………………71 United States v. Ruehle, Case No. 8:08-cr-00139-CJC (C.D. Cal.) ……………………60 United States v. Stein, 541 F.3d 130 (2nd Cir. 2008)……………………………………….60 United States v. Stevens, No. 08-231 (D.D.C., April 7, 2009)…………………………..60
Statutes
26 U.S.C. § 6103(h) ……………………………………………………………………………………64
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Other Authorities
Center for Public Integrity, Harmful Error: Investigating America’s Local ……….70
PBS Religion & Ethics Newsweekly (Video), Prosecutorial Misconduct, available at http://www.pbs.org/wnet/religionandethics/episodes/july-13- 2012/prosecutorial-misconduct/11821/……………………………………………………….70
USA Today, Prosecutor Misconduct Lets Convicted Off Easy, at http://www.usatoday.com/news/washington/judicial/2010-12-28- 1Aprosecutorpunish28_CV_N.htm?loc=interstitialskip………………………………..70
Rules
Fed. R. Crim. P. 6(e) …………………………………………………………………………………..64
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INTRODUCTION
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The outrageous government misconduct that has infected this case for over twelve years, and continues to infect this case to the present, warrants dismissal of the indictment with prejudice. First, a retrial would violate the Marchellettas’ fundamental Fifth Amendment rights, because the prosecution cannot certify that all documents, materials and information required to be disclosed to the defense by Rule 16, Brady, Giglio, and Jencks have been provided, or even can be provided. Second, and equally important, a retrial would constitute an unconscionable miscarriage of justice, and the court should exercise its supervisory power and dismiss this case with prejudice, to deter future illegal conduct, protect the perception and actual integrity of our federal criminal judicial process, and prevent that miscarriage of justice.
The Marchellettas have a fundamental Fifth Amendment right to a Due Process conforming fair trial, and this time-honored, bedrock right would be violated by any retrial. Here, the prosecution is unable to discharge its constitutional and statutory discovery obligations. As evidenced by the U.S. Attorney’s recent misrepresentations to this court in the related CBP/ICE FOIA litigation, the prosecutors, law enforcement agencies, and agents continue to lie and deceive to conceal the existence of documents without which the Marchellettas
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cannot receive a fair trial, to deceive the court and the defendants regarding the true nature, origin, and course of the criminal investigation, and to protect the lead special agents and prosecutors from further revelations regarding the scope of their unconscionable lies, deceptions, and myriad violations of their oaths and ethical duties.
Furthermore, IRS Special Agent Patricia Bergstrom (“SA Bergstrom”) committed perjury during the first trial, obstructed the Marchellettas from obtaining documents they were entitled to during the IRS FOIA litigation, perjured herself in sworn declarations filed in that case, and as newly obtained evidence proves, deceived DOJ Tax Division litigation counsel and IRS Chief Counsel regarding the existence of a crucially important document. SA Bergstrom has had possession, custody, and control over all IRS criminal investigation files in this case since its inception, and the prosecutors must again rely upon her records, as they improvidently did during the first trial, to discharge their Rule 16, Brady, Giglio, and Jencks discovery obligations.
This they cannot do, given the irreparable taint of SA Bergstrom’s perjury, deceptions, and document concealment. We simply cannot know, nor can the prosecutors or this court, what documents did or did not exist, or whether documents have been destroyed, forged, or otherwise secreted. A retrial under
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these circumstances would violate the Marchellettas’ fundamental right to a Due Process conforming fair trial.
In addition, the U.S. Attorney’s office has demonstrated its inability to canvass for and obtain all discovery required to be disclosed to the defense. As will be amplified below, with the exception of FBI 302 reports relating to the Gold Club case and several other categories of outstanding discovery, the prosecution states that discovery is complete. The prosecution’s position is simply incorrect, and woefully so. Through multiple FOIA requests to multiple federal agencies, the Marchellettas have received thousands of pages of documents and information relating to undisclosed criminal investigations of the Marchellettas and Circle, including an undisclosed investigation that substantially predated the fictional “happenstance, random, fortuitous” seizure of Circle checks at the Memphis FedEx hub on March 16, 2001.
These investigations were conducted by various federal law enforcement agencies, including the U.S. Department of Labor Office of the Inspector General (“DOL OIG”), the Federal Bureau of Investigation (“FBI”), and the Air Force Office of Special Investigations (“AFOSI”). At least one of these criminal investigations was led by former AUSA Paul Monnin, the lead prosecutor in the first trial. The multiple FOIA requests and disclosure responses, albeit oft times
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substantially redacted, revealed substantial information regarding the relationship between unindicted co-conspirator George Gorman, Jerry Marchelletta, Jr., and Circle, and put the lie to the prosecution’s discovery and first trial canard regarding some purported “independent alien smuggling investigation.” Now, it may be the case that the prosecutors are intentionally withholding mandatory discovery, or that they are simply not competent to discharge their constitutional, statutory, and ethical discovery obligations. Or it could be the case that law enforcement agencies and their discovery canvassing agent conduits are obstructing discovery by concealing documents and information from the prosecutors. Whatever the case, to say that the prosecution’s discovery canvas is constitutionally inadequate would be a grotesque understatement.
Moreover, and as against the prosecution’s position that discovery is complete (with the exceptions noted above), the prosecutors have failed to disclose any documents or information related to the Southeastern Carpenters Regional Council’s (“SCRC’s”) substantial cooperation and assistance to the prosecution team in this case, including multiple meetings with SCRC representatives and IRS SA Bergstrom and DOL-OIG Special Agent John Jupin, where information relating to the Marchelletta/Circle investigation – undisclosed to the defense to this very day – was exchanged.
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Second, and finally, a retrial would constitute an unconscionable miscarriage of justice, and the court should exercise its supervisory power and dismiss this case with prejudice. As was set forth in substantial part in the Marchellettas’ Rule 33 motion filed with this court on October 4, 2010, the investigation, indictment and prosecution of this case was plagued by serious investigative misconduct, massive discovery violations, the streaming perjury of SA Sellers and SA Bergstrom, the suborned perjury of several other government witnesses, false statements to the court by the prosecutors, and false and misleading statements by the prosecutors in opening statement and closing argument.
Remarkably, the flagrant misconduct documented in that Rule 33 motion did not capture the totality of egregious conduct and violations of ethics and basic human decency. The defense’s investigation since the filing of the Rule 33 has revealed substantial additional misconduct that will be set forth in requisite detail below, while relying upon the Rule 33 motion, memorandum, and exhibits in relevant part. In the end, experience, judicial wisdom, and the pursuit of justice underpin our federal courts’ supervisory power. Where, as here, justice has been cavalierly trampled upon by those entrusted with the power, the resources, and the imprimatur of honesty and integrity necessary to secure justice for all, the reasons for our rules are manifestly evident. Dismissing this case with prejudice will
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