DEFENDANTS' MOTION FOR RELIEF PURSUANT ... - DocumentCloud
Case 1:13-cr-00091-BLW Document 522 Filed 04/22/14 Page 1 of 5
John R. Kormanik, ISB #5850 KORMANIK HALLAM & SNEED LLP 206 W Jefferson St Boise ID 83702 Telephone: 208.288.1888 Facsimile: 866.821.9543 jrk@ khsidaholaw.com
Attorneys for Defendant David D. Swenson
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA, Plaintiff, vs. DOUGLAS L. SWENSON, MARK A. ELLISON, DAVID D. SWENSON, JEREMY S. SWENSON, Defendants.
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CASE NO. CR 13-091-S-BLW-4 DEFENDANTS’ MOTION FOR RELIEF PURSUANT TO FED. R. CRIM. P. 29(c) AND 33 AND REQUEST FOR BRIEFING SCHEDULE
COME NOW, the above-named defendants, by and through their undersigned counsel of record and hereby file this Defendants’ Motions for Relief Pursuant to FED. R. CRIM. P. 29(c) and 33. The Defendants request the Court accept this pleading as a motion dismiss and/or for a new trial, and, pursuant to FED. R. CRIM. P. 45(b), extend the time for the filing of briefing on the issues raised and to permit the Defendants to raise such additional issues as may become apparent from reviewing the official transcript of proceedings. Defendants move for dismissal or for a new trial for based on the following issues:
DEFENDANTS’ MOTION FOR RELIEF PURSUANT TO FED. R. CRIM. P. 29(c) AND 33 AND REQUEST FOR BRIEFING SCHEDULE – Page 1
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(1) Whether the Court erred in declining to give Defendants’ jury instruction defining materiality, thereby allowing the government to argue, among other things, that individual facts could be considered material without reference to all the information made available by the issuer, and thereby preventing the Defendants from arguing their theory of the case;
(2) Whether the government misstated the proof of intent required for secruities fraud in its closing argument and thereby misled the jury into believing that securities fraud was not a specific intent crime;
(3) Whether the Court erred in giving Instruction No. 40 concerning “technically true” statements and, whether, given the jury verdict, the instruction led to erroneous convictions; Whether the Court erred in giving Instructions 40, 41 and 42 over defendant’s objections;
(4) Whether the Court’s decision not to give the Defendants’ theory of the case instruction; Defendants’ requested good faith instruction; and Defendants’ materiality instruction warrants the granting of a new trial to avoid injustice; ;
(5) Whether the jury’s verdicts as to David Swenson, Jeremy Swenson and Mark Ellison are flawed to such an extent as to warrant acquittal;
(6) Whether there was sufficient evidence produced at trial to support the crimes for which Defendants were convicted;
(7) Whether the government’s improper seizure of defendant Douglas Swenson’s funds held by Code Six LLC, and its subsequent grand jury abuse in obtaining a forfeiture indictment, constituted a Sixth Amendment violation or otherwise provides a basis for
DEFENDANTS’ MOTION FOR RELIEF PURSUANT TO FED. R. CRIM. P. 29(c) AND 33 AND REQUEST FOR BRIEFING SCHEDULE – Page 2
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dismissal of the case against him, and whether other behavior of the government in the investigation and prosecution of this case warrants dismissal;
(8) Whether the government’s reference during its closing rebuttal argument to the Defendants’ subpoena power, and its ability to call certain identifiable witnesses, violated the Defendants’ constitutional rights, particularly where the government took the position throughout the trial that with respect to one of the witnesses the government argued was “missing” from the defendants’ proof was Special Agent Keith Tippets, whom the government contended the Defendants could not subpoena and call as a witness;
(9) Whether the Court’s discovery order widening the Defendants’ Rule 16 discovery obligations constituted reversible error or warrants a new trial;
(10)
Other issues identified by a defendant which would lead to relief under FED. R.
CRIM. P. 29(c) and/or 33. Due to the length and complexity of the trial and the need for an official transcript of the proceedings, it is respectfully requested the Court set a reasonable briefing schedule following receipt of the official transcript by those counsel who order the same. Respectfully submitted this 22nd day of April, 2014. KORMANIK HALLAM & SNEED LLP /s/ John R. Kormanik John R. Kormanik, of the Firm Counsel for Defendant David D. Swenson CALFO HARRIGAN LEYH & EAKES LLP /s/ Angelo J. Calfo Attorneys for Defendant Douglas Swenson
DEFENDANTS’ MOTION FOR RELIEF PURSUANT TO FED. R. CRIM. P. 29(c) AND 33 AND REQUEST FOR BRIEFING SCHEDULE – Page 3
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SILVEY LAW OFFICE LTD /s/Greg S. Silvey Greg S. Silvey Attorneys for Defendant Jeremy Swenson
SCHROETER, GOLDMARK & BENDER /s/Jeffery P. Robinson Jeffery P. Robinson Attorneys for Defendant Mark Ellison
DEFENDANTS’ MOTION FOR RELIEF PURSUANT TO FED. R. CRIM. P. 29(c) AND 33 AND REQUEST FOR BRIEFING SCHEDULE – Page 4
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CERTIFICATE OF SERVICE I hereby certify that on the 22nd day of April, 2014, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Wendy J. Olson Syrena C. Hargrove Katherine L. Wong George William Breitsameter Anthony G. Hall Raymond E. Patricco Justin D. Whatcott Mark L. Williams Joshua Hurwit Angelo J. Calfo Patricia Eakes David Z. Nevin Jeffery P. Robinson Greg S. Silvey Kira Dale Pfisterer
[email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
/s/ John R. Kormanik John R. Kormanik, of the Firm
DEFENDANTS’ MOTION FOR RELIEF PURSUANT TO FED. R. CRIM. P. 29(c) AND 33 AND REQUEST FOR BRIEFING SCHEDULE – Page 5
John R. Kormanik, ISB #5850 KORMANIK HALLAM & SNEED LLP 206 W Jefferson St Boise ID 83702 Telephone: 208.288.1888 Facsimile: 866.821.9543 jrk@ khsidaholaw.com
Attorneys for Defendant David D. Swenson
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA, Plaintiff, vs. DOUGLAS L. SWENSON, MARK A. ELLISON, DAVID D. SWENSON, JEREMY S. SWENSON, Defendants.
) ) ) ) ) ) ) ) ) ) ) ) )
CASE NO. CR 13-091-S-BLW-4 DEFENDANTS’ MOTION FOR RELIEF PURSUANT TO FED. R. CRIM. P. 29(c) AND 33 AND REQUEST FOR BRIEFING SCHEDULE
COME NOW, the above-named defendants, by and through their undersigned counsel of record and hereby file this Defendants’ Motions for Relief Pursuant to FED. R. CRIM. P. 29(c) and 33. The Defendants request the Court accept this pleading as a motion dismiss and/or for a new trial, and, pursuant to FED. R. CRIM. P. 45(b), extend the time for the filing of briefing on the issues raised and to permit the Defendants to raise such additional issues as may become apparent from reviewing the official transcript of proceedings. Defendants move for dismissal or for a new trial for based on the following issues:
DEFENDANTS’ MOTION FOR RELIEF PURSUANT TO FED. R. CRIM. P. 29(c) AND 33 AND REQUEST FOR BRIEFING SCHEDULE – Page 1
Case 1:13-cr-00091-BLW Document 522 Filed 04/22/14 Page 2 of 5
(1) Whether the Court erred in declining to give Defendants’ jury instruction defining materiality, thereby allowing the government to argue, among other things, that individual facts could be considered material without reference to all the information made available by the issuer, and thereby preventing the Defendants from arguing their theory of the case;
(2) Whether the government misstated the proof of intent required for secruities fraud in its closing argument and thereby misled the jury into believing that securities fraud was not a specific intent crime;
(3) Whether the Court erred in giving Instruction No. 40 concerning “technically true” statements and, whether, given the jury verdict, the instruction led to erroneous convictions; Whether the Court erred in giving Instructions 40, 41 and 42 over defendant’s objections;
(4) Whether the Court’s decision not to give the Defendants’ theory of the case instruction; Defendants’ requested good faith instruction; and Defendants’ materiality instruction warrants the granting of a new trial to avoid injustice; ;
(5) Whether the jury’s verdicts as to David Swenson, Jeremy Swenson and Mark Ellison are flawed to such an extent as to warrant acquittal;
(6) Whether there was sufficient evidence produced at trial to support the crimes for which Defendants were convicted;
(7) Whether the government’s improper seizure of defendant Douglas Swenson’s funds held by Code Six LLC, and its subsequent grand jury abuse in obtaining a forfeiture indictment, constituted a Sixth Amendment violation or otherwise provides a basis for
DEFENDANTS’ MOTION FOR RELIEF PURSUANT TO FED. R. CRIM. P. 29(c) AND 33 AND REQUEST FOR BRIEFING SCHEDULE – Page 2
Case 1:13-cr-00091-BLW Document 522 Filed 04/22/14 Page 3 of 5
dismissal of the case against him, and whether other behavior of the government in the investigation and prosecution of this case warrants dismissal;
(8) Whether the government’s reference during its closing rebuttal argument to the Defendants’ subpoena power, and its ability to call certain identifiable witnesses, violated the Defendants’ constitutional rights, particularly where the government took the position throughout the trial that with respect to one of the witnesses the government argued was “missing” from the defendants’ proof was Special Agent Keith Tippets, whom the government contended the Defendants could not subpoena and call as a witness;
(9) Whether the Court’s discovery order widening the Defendants’ Rule 16 discovery obligations constituted reversible error or warrants a new trial;
(10)
Other issues identified by a defendant which would lead to relief under FED. R.
CRIM. P. 29(c) and/or 33. Due to the length and complexity of the trial and the need for an official transcript of the proceedings, it is respectfully requested the Court set a reasonable briefing schedule following receipt of the official transcript by those counsel who order the same. Respectfully submitted this 22nd day of April, 2014. KORMANIK HALLAM & SNEED LLP /s/ John R. Kormanik John R. Kormanik, of the Firm Counsel for Defendant David D. Swenson CALFO HARRIGAN LEYH & EAKES LLP /s/ Angelo J. Calfo Attorneys for Defendant Douglas Swenson
DEFENDANTS’ MOTION FOR RELIEF PURSUANT TO FED. R. CRIM. P. 29(c) AND 33 AND REQUEST FOR BRIEFING SCHEDULE – Page 3
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SILVEY LAW OFFICE LTD /s/Greg S. Silvey Greg S. Silvey Attorneys for Defendant Jeremy Swenson
SCHROETER, GOLDMARK & BENDER /s/Jeffery P. Robinson Jeffery P. Robinson Attorneys for Defendant Mark Ellison
DEFENDANTS’ MOTION FOR RELIEF PURSUANT TO FED. R. CRIM. P. 29(c) AND 33 AND REQUEST FOR BRIEFING SCHEDULE – Page 4
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CERTIFICATE OF SERVICE I hereby certify that on the 22nd day of April, 2014, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Wendy J. Olson Syrena C. Hargrove Katherine L. Wong George William Breitsameter Anthony G. Hall Raymond E. Patricco Justin D. Whatcott Mark L. Williams Joshua Hurwit Angelo J. Calfo Patricia Eakes David Z. Nevin Jeffery P. Robinson Greg S. Silvey Kira Dale Pfisterer
[email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
/s/ John R. Kormanik John R. Kormanik, of the Firm
DEFENDANTS’ MOTION FOR RELIEF PURSUANT TO FED. R. CRIM. P. 29(c) AND 33 AND REQUEST FOR BRIEFING SCHEDULE – Page 5
