More on Matt Browns trip to Costa Rica....Google Jonathan Curshen
Doc 54 OCR extract - Part 2
After having declared that Mr. Mangiapane was not a target of the prosecution's investigation, and after having agreed to allow Mr. Mangiapane to proffer testimony and to testify before the grand jury, the prosecution totally reneged on all of its agreements, and chose instead to amend its original indictment[6] to name Mr. Mangiapane as a defendant. Apparently, the grand jury issued a true bill relative to the superceding indictment, and, contrary to the prosecution's subpoena and subsequent promises, Mr. Mangiapane stood indicted without having been given the opportunity to testify.
[6] The original indictment named Mr. Mangiapane by initials, but did not include him as a defendant. Exhibit 37; First Indictment.
ARGUMENT
The Fifth Amendment to the Constitution of the United States of America guarantees that "no person shall be held to answer for a capital, or otherwise infamous, crime, unless on a presentment or indictment of a grand jury..." US Constitution, Amendment V. The framers of the Bill of Rights included the grand jury guarantee in the Fifth Amendment to protect wrongfully accused individuals against mistaken and vindictive prosecutions. U.S. v. Clairborne, 765 F.2d 784, 790 (9th Cir., 1985; see U.S. v. Dionisio, 410 U.S. 1, 16 --17).
Where a prosecutor is aware of any substantial evidence negating guilt he should, in the interest of justice, make it known to the grand jury, at least where it might reasonably be expected to lead the jury not to indict. (Citations omitted.) U.S. v. Deerfield Specialty Papers, Inc., 501 F.Supp. 796 (D.C. PA, 1980).
The majority view expressed by the courts is that a prosecutor has no duty to present any exculpatory evidence to a grand jury. There is a line of authority, however, which holds that a prosecutor has a duty to present "exculpatory evidence of which he is aware" to the Grand Jury. (Citations omitted.) U.S. v. Ismaili, 828 F.2d 153, 165 (3rd Cir., 1987).
The Third Circuit has not decided whether a prosecutor has a duty to present exculpatory evidence to a grand jury. U.S. v. Ismaili, 828 F.2d 153, 165 (3rd Cir., 1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1110, 99 L.Ed.2d 271 (1988). However, the Third Circuit recognized that a majority of courts considering the issue have decided that such a duty does not exist. Id., 828 F.2d at 165 n. 13. The district courts in this circuit have rejected such a blanket rule. Generally, courts in this circuit have held that when a prosecutor is aware of substantial exculpatory evidence, the evidence should be disclosed to the grand jury if it could reasonably cause the grand jury not to indict. United States v. Litman, 547 F.Supp. 645, 649 (W.D.Pa., 1982). See also, United States v. Fisher, 692 F.Supp. 495, 504 (E.D.Pa., 1988); Kudisch v. Overbeck, 618 F.Supp. 196 (D.N.J., 1985). To prevail on their motions to have the Court inspect the grand jury testimony, the defendants must show that the prosecutor's failure to introduce the evidence was deliberate. Litman, 547 F.Supp. at 650. U.S. v. Cole 717 F.Supp. 309, 314 (E.D.Pa., 1989).
The defendant must prove that, at the time the Government presented its case to the grand jury, the prosecutor was aware of the existence of exculpatory evidence which could reasonably lead the grand jury not to indict and that he deliberately failed to include it or, at a minimum, to notify the grand jury of its existence. U.S. v. Litman, 547 F.Supp. 645, 650 (D.C.Pa., 1982). A prosecutor's failure to present exculpatory evidence to the grand jury where there has been an implicit agreement to do so may also warrant a pretrial challenge to an indictment. U.S. v. Mclintock, 748 F.2d 1278, 1284-86 (9th Cir., 1984).
U.S. v. Williams, 504 U.S. 36, 112 S.Ct. 1735 (1992) provides that the prosecution is under no burden to provide exculpatory evidence to the grand jury. However, when the prosecution fails to present exculpatory evidence after having promised to allow the defendant to testify before the grand jury, and after withholding exculpatory evidence, the prosecution is guilty of misconduct.
In the case at bar and as will be shown below, the prosecutor knew of the following exculpatory evidence, but failed to present to the grand jury. Had the prosecution done so, it is likely that the grand jury would not have indicted Mr. Mangiapane.
A. The primary allegation regarding money laundering centers on a trip that Mr. Mangiapane allegedly took to Costa Rica on or about October, 2006, for the purpose of opening an off-shore account to hide Mr. Dynkowski's proceeds from market manipulation.[7] See Second Superceding Indictment, page 22, paragraph g.
[7] The indictment does not stipulate whether this was a bank account, a brokerage account, or some other type of account.
In fact, the trip alleged in the indictment actually took place between October 27, 2006 and October 30, 2006.[8] Exhibit 32; American Express Statement.
[8] This allegation can also be proven by Mr. Mangiapane's passport, which is in the possession of the government.
The purpose of the trip, in fact, was to attend a Halloween Party held at the home of Pris and David Ricci in Costa Rica. Exhibit 33; Invitation.[9] See also Exhibit 34; photo of Mr. Mangiapane in attendance at the party. [10]
[9] Unnumbered discovery provided by the prosecution to Mr. Mangiapane. Based upon information and belief, this was seized from Mr. Brown's computer by the government.
[10] This exhibit is taken from discovery provided by the prosecution, Bates-stamp number 2666.
Upon the aforementioned invitation from David Ricci, the main trader at Global Sentry Securities, Matt Brown invited his personal friend, Mr. Dynkowski to join both Mr. Brown and Mr. Mangiapane in traveling together to the Halloween party. On Friday, October 27, 2006, Mr. Mangiapane and Matt Brown departed from the Orange County airport on or about 11:00 a.m. to meet Dynkowski about 5:00 p.m. in Houston, Texas where they connected to fly to Costa Rica. Mangiapane, Brown and Dynkowski arrived in Costa Rica a little before 9 p.m., after banking hours were closed/over. Banks are closed on weekends.
Mr. Ricci, the host of the Halloween party, picked up Mr. Mangiapane, Mr. Brown and Mr. Dynkowski from the airport in Costa Rica, and the four men drove to a bar where they met with Jonathan Curshen, the owner of Red Sea Management, who dropped by with friends to welcome them to Costa Rica. At about midnight, Mr. Mangiapane, Mr. Brown and Mr. Dynkowski checked into separate rooms at the Intercontinental Hotel in San Jose, Costa Rica. See Exhibit 32; American Express Statement.
On Saturday, October 28, 2006, Mr. Mangiapane, Mr. Brown and Mr. Dynkowski attended the Halloween Party.
On Sunday, October 29, 2006, Messrs. Curshen, Dynkowski, Brown and Mangiapane had lunch at the Machu Picchu restaurant in San Jose, Costa Rica.
On Monday, October 30, 2006, Mr. Brown and Mr. Dynkowski accepted an invitation from Jonathan Curshen, the owner of Red Sea Management, which in turn owns the firm Global Sentry Securities, to tour his headquarter office and see his operation in San Jose, Costa Rica. Red Sea Management and Global Sentry Securities of Costa Rica were customers of AIS Securities. These accounts were clients of Dan Landau and transferred in December, 2005 from Finance 500 when Mr. Landau joined AIS Securities as a registered representative. Matt Brown was provided office space at AIS Securities/Rubicon Financial Incorporated in exchange for providing technology related services. In addition, Mr. Brown was building a new trading platform, through Mr. Brown's company Vertikal Technologies, Inc., for Rubicon Financial Incorporated.[11]Mr. Brown did not maintain his personal trading account at AIS Securities.
[11]See Exhibit 35; E-mail to AIS staff, including photo of "M.B." indicating that "M.B." is the "Floor Warden" at AIS/Rubicon.
In any case, since the plane was departing at 12:45 p.m. Costa Rica time, Mr. Mangiapane chose to shop at the mall and purchase gifts for his children. (See evidence of gift purchases in Exhibit 32; American Express Statement.) Mr. Mangiapane arranged to meet Mr. Brown and Mr. Dynkowski back at the hotel where they would all get a taxi to the airport for the flight back to Houston, Texas. Mr. Mangiapane and Mr. Brown connected in Houston, Texas and flew to Orange County, California, where they arrived just before midnight.
Had the government presented this evidence to the Grand Jury and allowed Mangiapane to give his sworn testimony to the Grand Jury of the trip to Costa Rica with full transparency, instead of the ambiguity of the Government's version of the facts, it is unlikely the Grand Jury would have indicted Mangiapane on the Government's charges.
B. If the prosecution had informed the grand jury that Mr. Brown had a relationship with Jonathan Curshen at least six months prior to the Costa Rica trip, the grand jury could have deduced that Mr. Brown and Mr. Dynkowski did not need Mr. Mangiapane's assistance in opening an account in Costa Rica. In fact, Mr. Brown and Jonathan Curshen did have such a relationship at least as early as June 13, 2006. Exhibit 38; Notebook kept by Mr. Brown[I2] Exhibit 39; E-mail correspondence between Mr. Brown[I3] and Jonathan Curshen; Exhibit 40; Notebook kept by Mr. Brown[I4]
[12] Provided by the prosecution in discovery, SEC-H010607-00069718
[13] Provided by the prosecution in discovery, SEC-H010607-00069562.
[14] Provided by the prosecution in discovery SEC-H010607-00069965.
C. The indictment alleges that in or about January 2007, Mr. Riviello delivered to Mr. Mangiapane, approximately $220,000 in cash proceeds from the sale of GH3 shares, a portion of which proceeds were ultimately intended for "M.B." and Mr. Dynkowski. See Second Superceding Indictment, page 10, paragraph g. Had Mr. Mangiapane been allowed to testify before the grand jury he would stated that he was never a part of any scheme or conspiracy that would have resulted in Mr. Mangiapane's receiving any cash from Mr. Riviello to deliver to Mr. Brown or Mr. Dynkowski.
D. On July 24, 2006, Mr. Mangiapane addressed an e-mail message to Marc Riviello wherein Mr. Mangiapane stated, "I feel it is not in my best interest to continue with my current position at Advantage Investment Strategies. For both personal and professional reasons that I do not wish to disclose at this time. I will remain a registered representative until further notice by AIS or myself."[15] Had Mr. Mangiapane been allowed to testify, or to proffer testimony to the prosecution, Mr. Mangiapane would have testified that this e-mail marked the beginning of Mr. Mangiapane's disengagement from the activities of Mr. Riviello. Exhibit 41; E-mail message dated July 24, 2006.
E. On July 24, 2006, Mr. Mangiapane addressed an e-mail to Marc Riviello wherein Mr. Mangiapane stated, "Why are these accounts still not in a brokers name? Please advise...doesn't Dan Landau talk to these accounts. Who is the registered rep?"[16] Again, this e-mail message indicates that Mr. Mangiapane was not a part of any conspiracy involving Marc Riviello, but instead was questioning Mr. Riviello's management of the various accounts in question. Exhibit 42; E-mail message dated July 24, 2006.
[15] Provided by the prosecution in discovery. The document was provided on a CD, and was not Bates-stamped or otherwise identified.
[16] Provided by the prosecution in discovery. The document was provided on a CD, and was not Bates-stamped or otherwise identified.
F. Mr. Mangiapane never owned more than 20% of AIS. On or about November, 2006, Mr. Mangiapane sold his 20% interest, along with an option to purchase the remaining 80% of AIS to Mr. Riviello. Had Mr. Mangiapane been allowed to testify before the grand jury, he would have explained that (i) Mr. Mangiapane never held a controlling interest in AIS, and (ii) what little interest he did hold was sold to Mr. Riviello prior to any of the activities alleged in the indictment relative to GH3, and before the sale of 26 million shares of the S-8 shares in Asia Global (AAGH). Exhibit 43; FINRA questionnaire directed to Marc Riviello, and Marc Riviello's response to question regarding ownership.
The prosecution has provided Mr. Mangiapane with tens of thousands of pages of documents, most not at all relevant to the instant matter.[17] The prosecution has also provided Mr. Mangiapane with some of the exhibits presented to the grand jury. Most of these documents are contained on various CD's and are not indexed, Bates-stamped, or otherwise organized. In other words, the prosecution merely dumped tens of thousands of unorganized pages of irrelevant material on Mr. Mangiapane. After Mr. Mangiapane has had an opportunity to organize and index the documents provided by the prosecution, Mr. Mangiapane will be able to ascertain whether or not additional documents in the possession of the prosecution were exculpatory. In addition, the government is in possession of much more discovery which it has not yet provided to Mr. Mangiapane, i.e., documents seized from the computers of various other indicted and unindicted co-conspirators, such as Mr. Dynkowski and Mr. Riviello. These documents, too, are likely to contain exculpatory evidence favorable to Mr. Mangiapane.
[17] The documents provided were mostly documents taken from Mr. Brown's computer by the prosecution. They include thousands of pages of downloaded pornography, personal items, and other items not at all related to the instant matter.
Needless to say, the documents presented to the grand jury do not, in and of themselves, implicate Mr. Mangiapane in any conspiracy. Without the "spin" or "explanation" provided to the grand jury by the prosecution it is unlikely that the grand jury could have, or would have, implicated Mr. Mangiapane in any conspiracy.
Discovery of grand jury proceedings may be permitted by a court at the request of the defendant, "upon a showing that grounds may exist for a motion to dismiss the indictment" because of improper conduct affecting the grand jury. F.R.Cr.P. 6(e)(2)(C)(1). In United States v. Procter & Gamble, supra, a case involving disclosure of grand jury materials for use in civil litigation, the Supreme Court stated in general terms that the "indispensible secrecy ... must not be broken except where there is a compelling necessity. There are instances where the need (for disclosure) will outweigh the countervailing policy. But they must be shown with particularity." Id. at 682, 78 S.Ct. at 986. In Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), the court implied that it would relax this requirement in instances where criminal defendants requested grand jury materials. In that case, although the Court nominally affirmed the use of the "particularized need" test, it further recognized that "disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice," and that "it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant facts." U.S. v. Boffa 513 F.Supp. 444, 493 (D.C.Del., 1980).
CONCLUSION
The manner in which the evidence was presented to the grand jury was misleading and improperly led the grand jury members to falsely conclude that Mr. Mangiapane was part of an alleged scheme or conspiracy with other named defendants and that his actions were criminal in nature. The government's intentional disregard for Mr. Mangiapane's intention to proffer testimony to them and offer sworn testimony to the grand jury destroyed the government's independent fact finding mission and deprived Mr. Mangiapane of due process. The government's actions, in light of all of the above stated facts, was misconduct. The remedy should be dismissal of all charges.
Respectfully submitted,
JOSEPH MANGIAPANE, JR., 28002
(Address and tel. number omitted)
Defendant, Pro Se
Dated: September 10, 2009
Doc 54 OCR extract - Part 2
After having declared that Mr. Mangiapane was not a target of the prosecution's investigation, and after having agreed to allow Mr. Mangiapane to proffer testimony and to testify before the grand jury, the prosecution totally reneged on all of its agreements, and chose instead to amend its original indictment[6] to name Mr. Mangiapane as a defendant. Apparently, the grand jury issued a true bill relative to the superceding indictment, and, contrary to the prosecution's subpoena and subsequent promises, Mr. Mangiapane stood indicted without having been given the opportunity to testify.
[6] The original indictment named Mr. Mangiapane by initials, but did not include him as a defendant. Exhibit 37; First Indictment.
ARGUMENT
The Fifth Amendment to the Constitution of the United States of America guarantees that "no person shall be held to answer for a capital, or otherwise infamous, crime, unless on a presentment or indictment of a grand jury..." US Constitution, Amendment V. The framers of the Bill of Rights included the grand jury guarantee in the Fifth Amendment to protect wrongfully accused individuals against mistaken and vindictive prosecutions. U.S. v. Clairborne, 765 F.2d 784, 790 (9th Cir., 1985; see U.S. v. Dionisio, 410 U.S. 1, 16 --17).
Where a prosecutor is aware of any substantial evidence negating guilt he should, in the interest of justice, make it known to the grand jury, at least where it might reasonably be expected to lead the jury not to indict. (Citations omitted.) U.S. v. Deerfield Specialty Papers, Inc., 501 F.Supp. 796 (D.C. PA, 1980).
The majority view expressed by the courts is that a prosecutor has no duty to present any exculpatory evidence to a grand jury. There is a line of authority, however, which holds that a prosecutor has a duty to present "exculpatory evidence of which he is aware" to the Grand Jury. (Citations omitted.) U.S. v. Ismaili, 828 F.2d 153, 165 (3rd Cir., 1987).
The Third Circuit has not decided whether a prosecutor has a duty to present exculpatory evidence to a grand jury. U.S. v. Ismaili, 828 F.2d 153, 165 (3rd Cir., 1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1110, 99 L.Ed.2d 271 (1988). However, the Third Circuit recognized that a majority of courts considering the issue have decided that such a duty does not exist. Id., 828 F.2d at 165 n. 13. The district courts in this circuit have rejected such a blanket rule. Generally, courts in this circuit have held that when a prosecutor is aware of substantial exculpatory evidence, the evidence should be disclosed to the grand jury if it could reasonably cause the grand jury not to indict. United States v. Litman, 547 F.Supp. 645, 649 (W.D.Pa., 1982). See also, United States v. Fisher, 692 F.Supp. 495, 504 (E.D.Pa., 1988); Kudisch v. Overbeck, 618 F.Supp. 196 (D.N.J., 1985). To prevail on their motions to have the Court inspect the grand jury testimony, the defendants must show that the prosecutor's failure to introduce the evidence was deliberate. Litman, 547 F.Supp. at 650. U.S. v. Cole 717 F.Supp. 309, 314 (E.D.Pa., 1989).
The defendant must prove that, at the time the Government presented its case to the grand jury, the prosecutor was aware of the existence of exculpatory evidence which could reasonably lead the grand jury not to indict and that he deliberately failed to include it or, at a minimum, to notify the grand jury of its existence. U.S. v. Litman, 547 F.Supp. 645, 650 (D.C.Pa., 1982). A prosecutor's failure to present exculpatory evidence to the grand jury where there has been an implicit agreement to do so may also warrant a pretrial challenge to an indictment. U.S. v. Mclintock, 748 F.2d 1278, 1284-86 (9th Cir., 1984).
U.S. v. Williams, 504 U.S. 36, 112 S.Ct. 1735 (1992) provides that the prosecution is under no burden to provide exculpatory evidence to the grand jury. However, when the prosecution fails to present exculpatory evidence after having promised to allow the defendant to testify before the grand jury, and after withholding exculpatory evidence, the prosecution is guilty of misconduct.
In the case at bar and as will be shown below, the prosecutor knew of the following exculpatory evidence, but failed to present to the grand jury. Had the prosecution done so, it is likely that the grand jury would not have indicted Mr. Mangiapane.
A. The primary allegation regarding money laundering centers on a trip that Mr. Mangiapane allegedly took to Costa Rica on or about October, 2006, for the purpose of opening an off-shore account to hide Mr. Dynkowski's proceeds from market manipulation.[7] See Second Superceding Indictment, page 22, paragraph g.
[7] The indictment does not stipulate whether this was a bank account, a brokerage account, or some other type of account.
In fact, the trip alleged in the indictment actually took place between October 27, 2006 and October 30, 2006.[8] Exhibit 32; American Express Statement.
[8] This allegation can also be proven by Mr. Mangiapane's passport, which is in the possession of the government.
The purpose of the trip, in fact, was to attend a Halloween Party held at the home of Pris and David Ricci in Costa Rica. Exhibit 33; Invitation.[9] See also Exhibit 34; photo of Mr. Mangiapane in attendance at the party. [10]
[9] Unnumbered discovery provided by the prosecution to Mr. Mangiapane. Based upon information and belief, this was seized from Mr. Brown's computer by the government.
[10] This exhibit is taken from discovery provided by the prosecution, Bates-stamp number 2666.
Upon the aforementioned invitation from David Ricci, the main trader at Global Sentry Securities, Matt Brown invited his personal friend, Mr. Dynkowski to join both Mr. Brown and Mr. Mangiapane in traveling together to the Halloween party. On Friday, October 27, 2006, Mr. Mangiapane and Matt Brown departed from the Orange County airport on or about 11:00 a.m. to meet Dynkowski about 5:00 p.m. in Houston, Texas where they connected to fly to Costa Rica. Mangiapane, Brown and Dynkowski arrived in Costa Rica a little before 9 p.m., after banking hours were closed/over. Banks are closed on weekends.
Mr. Ricci, the host of the Halloween party, picked up Mr. Mangiapane, Mr. Brown and Mr. Dynkowski from the airport in Costa Rica, and the four men drove to a bar where they met with Jonathan Curshen, the owner of Red Sea Management, who dropped by with friends to welcome them to Costa Rica. At about midnight, Mr. Mangiapane, Mr. Brown and Mr. Dynkowski checked into separate rooms at the Intercontinental Hotel in San Jose, Costa Rica. See Exhibit 32; American Express Statement.
On Saturday, October 28, 2006, Mr. Mangiapane, Mr. Brown and Mr. Dynkowski attended the Halloween Party.
On Sunday, October 29, 2006, Messrs. Curshen, Dynkowski, Brown and Mangiapane had lunch at the Machu Picchu restaurant in San Jose, Costa Rica.
On Monday, October 30, 2006, Mr. Brown and Mr. Dynkowski accepted an invitation from Jonathan Curshen, the owner of Red Sea Management, which in turn owns the firm Global Sentry Securities, to tour his headquarter office and see his operation in San Jose, Costa Rica. Red Sea Management and Global Sentry Securities of Costa Rica were customers of AIS Securities. These accounts were clients of Dan Landau and transferred in December, 2005 from Finance 500 when Mr. Landau joined AIS Securities as a registered representative. Matt Brown was provided office space at AIS Securities/Rubicon Financial Incorporated in exchange for providing technology related services. In addition, Mr. Brown was building a new trading platform, through Mr. Brown's company Vertikal Technologies, Inc., for Rubicon Financial Incorporated.[11]Mr. Brown did not maintain his personal trading account at AIS Securities.
[11]See Exhibit 35; E-mail to AIS staff, including photo of "M.B." indicating that "M.B." is the "Floor Warden" at AIS/Rubicon.
In any case, since the plane was departing at 12:45 p.m. Costa Rica time, Mr. Mangiapane chose to shop at the mall and purchase gifts for his children. (See evidence of gift purchases in Exhibit 32; American Express Statement.) Mr. Mangiapane arranged to meet Mr. Brown and Mr. Dynkowski back at the hotel where they would all get a taxi to the airport for the flight back to Houston, Texas. Mr. Mangiapane and Mr. Brown connected in Houston, Texas and flew to Orange County, California, where they arrived just before midnight.
Had the government presented this evidence to the Grand Jury and allowed Mangiapane to give his sworn testimony to the Grand Jury of the trip to Costa Rica with full transparency, instead of the ambiguity of the Government's version of the facts, it is unlikely the Grand Jury would have indicted Mangiapane on the Government's charges.
B. If the prosecution had informed the grand jury that Mr. Brown had a relationship with Jonathan Curshen at least six months prior to the Costa Rica trip, the grand jury could have deduced that Mr. Brown and Mr. Dynkowski did not need Mr. Mangiapane's assistance in opening an account in Costa Rica. In fact, Mr. Brown and Jonathan Curshen did have such a relationship at least as early as June 13, 2006. Exhibit 38; Notebook kept by Mr. Brown[I2] Exhibit 39; E-mail correspondence between Mr. Brown[I3] and Jonathan Curshen; Exhibit 40; Notebook kept by Mr. Brown[I4]
[12] Provided by the prosecution in discovery, SEC-H010607-00069718
[13] Provided by the prosecution in discovery, SEC-H010607-00069562.
[14] Provided by the prosecution in discovery SEC-H010607-00069965.
C. The indictment alleges that in or about January 2007, Mr. Riviello delivered to Mr. Mangiapane, approximately $220,000 in cash proceeds from the sale of GH3 shares, a portion of which proceeds were ultimately intended for "M.B." and Mr. Dynkowski. See Second Superceding Indictment, page 10, paragraph g. Had Mr. Mangiapane been allowed to testify before the grand jury he would stated that he was never a part of any scheme or conspiracy that would have resulted in Mr. Mangiapane's receiving any cash from Mr. Riviello to deliver to Mr. Brown or Mr. Dynkowski.
D. On July 24, 2006, Mr. Mangiapane addressed an e-mail message to Marc Riviello wherein Mr. Mangiapane stated, "I feel it is not in my best interest to continue with my current position at Advantage Investment Strategies. For both personal and professional reasons that I do not wish to disclose at this time. I will remain a registered representative until further notice by AIS or myself."[15] Had Mr. Mangiapane been allowed to testify, or to proffer testimony to the prosecution, Mr. Mangiapane would have testified that this e-mail marked the beginning of Mr. Mangiapane's disengagement from the activities of Mr. Riviello. Exhibit 41; E-mail message dated July 24, 2006.
E. On July 24, 2006, Mr. Mangiapane addressed an e-mail to Marc Riviello wherein Mr. Mangiapane stated, "Why are these accounts still not in a brokers name? Please advise...doesn't Dan Landau talk to these accounts. Who is the registered rep?"[16] Again, this e-mail message indicates that Mr. Mangiapane was not a part of any conspiracy involving Marc Riviello, but instead was questioning Mr. Riviello's management of the various accounts in question. Exhibit 42; E-mail message dated July 24, 2006.
[15] Provided by the prosecution in discovery. The document was provided on a CD, and was not Bates-stamped or otherwise identified.
[16] Provided by the prosecution in discovery. The document was provided on a CD, and was not Bates-stamped or otherwise identified.
F. Mr. Mangiapane never owned more than 20% of AIS. On or about November, 2006, Mr. Mangiapane sold his 20% interest, along with an option to purchase the remaining 80% of AIS to Mr. Riviello. Had Mr. Mangiapane been allowed to testify before the grand jury, he would have explained that (i) Mr. Mangiapane never held a controlling interest in AIS, and (ii) what little interest he did hold was sold to Mr. Riviello prior to any of the activities alleged in the indictment relative to GH3, and before the sale of 26 million shares of the S-8 shares in Asia Global (AAGH). Exhibit 43; FINRA questionnaire directed to Marc Riviello, and Marc Riviello's response to question regarding ownership.
The prosecution has provided Mr. Mangiapane with tens of thousands of pages of documents, most not at all relevant to the instant matter.[17] The prosecution has also provided Mr. Mangiapane with some of the exhibits presented to the grand jury. Most of these documents are contained on various CD's and are not indexed, Bates-stamped, or otherwise organized. In other words, the prosecution merely dumped tens of thousands of unorganized pages of irrelevant material on Mr. Mangiapane. After Mr. Mangiapane has had an opportunity to organize and index the documents provided by the prosecution, Mr. Mangiapane will be able to ascertain whether or not additional documents in the possession of the prosecution were exculpatory. In addition, the government is in possession of much more discovery which it has not yet provided to Mr. Mangiapane, i.e., documents seized from the computers of various other indicted and unindicted co-conspirators, such as Mr. Dynkowski and Mr. Riviello. These documents, too, are likely to contain exculpatory evidence favorable to Mr. Mangiapane.
[17] The documents provided were mostly documents taken from Mr. Brown's computer by the prosecution. They include thousands of pages of downloaded pornography, personal items, and other items not at all related to the instant matter.
Needless to say, the documents presented to the grand jury do not, in and of themselves, implicate Mr. Mangiapane in any conspiracy. Without the "spin" or "explanation" provided to the grand jury by the prosecution it is unlikely that the grand jury could have, or would have, implicated Mr. Mangiapane in any conspiracy.
Discovery of grand jury proceedings may be permitted by a court at the request of the defendant, "upon a showing that grounds may exist for a motion to dismiss the indictment" because of improper conduct affecting the grand jury. F.R.Cr.P. 6(e)(2)(C)(1). In United States v. Procter & Gamble, supra, a case involving disclosure of grand jury materials for use in civil litigation, the Supreme Court stated in general terms that the "indispensible secrecy ... must not be broken except where there is a compelling necessity. There are instances where the need (for disclosure) will outweigh the countervailing policy. But they must be shown with particularity." Id. at 682, 78 S.Ct. at 986. In Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), the court implied that it would relax this requirement in instances where criminal defendants requested grand jury materials. In that case, although the Court nominally affirmed the use of the "particularized need" test, it further recognized that "disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice," and that "it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant facts." U.S. v. Boffa 513 F.Supp. 444, 493 (D.C.Del., 1980).
CONCLUSION
The manner in which the evidence was presented to the grand jury was misleading and improperly led the grand jury members to falsely conclude that Mr. Mangiapane was part of an alleged scheme or conspiracy with other named defendants and that his actions were criminal in nature. The government's intentional disregard for Mr. Mangiapane's intention to proffer testimony to them and offer sworn testimony to the grand jury destroyed the government's independent fact finding mission and deprived Mr. Mangiapane of due process. The government's actions, in light of all of the above stated facts, was misconduct. The remedy should be dismissal of all charges.
Respectfully submitted,
JOSEPH MANGIAPANE, JR., 28002
(Address and tel. number omitted)
Defendant, Pro Se
Dated: September 10, 2009
