larry seabrook trial brief 6.24.12

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK- - - - - - - - - - - - - - - - - -X

UNITED STATES OF AMERICA :

-v.- : S1 10 Cr. 87 (DAB)

LARRY SEABROOK, :

Defendant. :

- - - - - - - - - - - - - - - - - -X

TRIAL BRIEF

PREET BHARARAUnited States Attorney for theSouthern District of New YorkOne St. Andrew’s PlazaNew York, New York 10007

Karl MetznerSteve C. LeeRandall W. JacksonAssistant United States Attorneys

-Of Counsel-

Case 1:10-cr-00087-DAB Document 78 Filed 06/24/12 of 11

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK- - - - - - - - - - - - - - - - - -X

UNITED STATES OF AMERICA :

-v.- : S1 10 Cr. 87 (DAB)

LARRY SEABROOK, :

Defendant. :

- - - - - - - - - - - - - - - - - -X

TRIAL BRIEF

The Government respectfully submits this trial brief in

anticipation of certain legal issues regarding forthcoming

witnesses Gloria Jones Grant and Tyrone Mitch Duren.1 In

particular, this brief is provided in an abundance of caution in

order to inform the Court of relevant factual background and

legal precedent on which the Government relies with regard to

certain potentially contested issues. Specifically, the

Government respectfully seeks to inform the Court that: (1) both

of these individuals are hostile witnesses who will be testifying

under compulsion and a grant of immunity; (2) as a result, the

Government intends to pose a number of leading questions of these

witnesses; (3) the Government intends to probe the relationship

of trust between certain of these witnesses and the defendant,

including the exchange of funds between them; and (4) the

1 These witnesses will begin to testify no sooner thanWednesday, June 26, 2012.

-1-


Government anticipates that it may ask the jury to draw

conclusions that differ from certain of the witnesses’

assertions. Applicable precedent holds that the Government may

call such witnesses to elicit key truthful testimony from them,

but then may nevertheless impeach or ask the jury to discredit

other aspects of those witnesses’ testimony.

BACKGROUND

Both witnesses at issue here either had or currently has an

extraordinarily close relationship with the defendant, and has

refused to testify except under compulsion and after having been

granted immunity. One witness was involved a years-long romantic

affair with the defendant, and the other had an extremely close

personal and family friendship extending over many years. At the

first trial of the defendant, the Government moved to treat these

witnesses as hostile. The defendant opposed and ultimately Judge

Patterson ruled that he would consider the issue as the witness

testified and evaluate the matter as the questions were answered.

(Tr. 2781-83). During the testimony of Jones Grant at the first

trial, Judge Patterson allowed leading questions throughout much

of her testimony as it became clear that portions of Jones

Grant’s testimony were subject to impeachment. (Tr. 2808-31). At

a sidebar, the Government observed that Jones Grant had “in the

brief time she has been on the stand . . . already testified

contrary to statements she made several times to the government

-2-


in proffer sessions.” (Tr. 2815). The Court observed that “[f]or

instance, she has not corroborated what you had previously

learned.” (Tr. 2815). The defense conceded that, with regard to

Ms. Jones Grant’s testimony about consultant fees she may have

shared with the defendant, they could not contest the

Government’s need to confront the witness. (Tr. 2816).2 After

this point, the Government was forced to repeatedly confront the

witness with her prior inconsistent statements in proffer

sessions. (Tr. 2820-31). The following day, the Government was

forced to confront the witness with her prior Grand Jury

testimony, as well as bank records that conflicted with her

testimony. (Tr. 2844-51). At this point, Judge Patterson rejected

a defense objection to leading questions that were being posed to

the witness. (Tr. 2863).3 After being confronted with certain

records, Jones Grant ultimately admitted that she had “arranged

with Mr. Seabrook to give him part of [her] consulting fee,

however much that consulting fee might be, back in cash.” (Tr.

2864). But even after this point, Jones Grant continued to give

evasive answers to a number of the Government’s questions

2 “MR. WILFORD: We don’t disagree with that, Judge. Theyhave impeachment material. They can ask her about that.” Tr.2816.

3 “THE COURT: I am going to allow the form in this case. Iam going to overrule the objection.” Tr. 2863.

-3-


regarding her interactions with the defendant. (Tr. 2871-82).

Duren’s testimony was not similarly combative, but the subject of

much of his testimony was fraudulent activity in which he engaged

and fraudulent documents he created during his close association

with Mr. Seabrook. (Tr. 2445-59). During portions of his

testimony, Duren expressed an inability to explain certain

fraudulent activity. (Tr. 2466).4

DISCUSSION

A. Hostile Witnesses

At this point, there is no serious question that each of the

witnesses is either a “hostile witness” or “associated with an

adverse party,” as those terms are understood in the Federal

Rules of Evidence. Fed. R. Evid. 611. Federal Rule of Evidence

611(c) provides that “the court should allow leading questions:

(1) on cross-examination; and (2) when a party calls a hostile

witness, an adverse party, or a witness identified with an

adverse party.” Fed. R. Evid. 611; see United States v. Veal, No.

98-1539, 182 F.3d 902, 1999 WL 446783 at *2 (2d Cir. Jun. 16,

1999) (“A prosecutor has broad latitude in questioning a hostile

witness and may impeach the witness and argue to the jury that

4 “I said to her off the record, either could we change someo the dates or backdate it . . . . I have been trying to thinkabout that for the longest, but I don’t recall the nature of whyI asked her that.”

-4-


the witness lied”) (unpublished); see also United States v.

Ienco, 92 F.3d 564, 568 (7th Cir. 1996) (“the asking of leading

questions is a standard technique of impeachment. It is a

technique more commonly employed in cross-examination than in

direct examination, for the obvious reason that the other side’s

witnesses are more likely to be adverse than one’s own. But if

you call an adverse witness you can, in effect, cross-examine

him.”) (Posner, J.) (emphasis added); see generally United States

v. Salerno, 505 U.S. 317, 328-29 (1992) (“in the Anglo–American

legal system cross-examination is the principal means of

undermining the credibility of a witness whose testimony is false

or inaccurate. For that reason, a party has a motive to

cross-examine any witness who, in her estimation, is giving false

or inaccurate testimony about a fact that is material to the

legal question at issue in the proceeding.”) (Stevens, J.,

dissenting). Given that both of the aforementioned individuals

will testify as a hostile witness, the Court should permit the

use of cross-examination by the Government.

B. Relationship of Trust

Instrumental to the Government’s case against the defendant

is demonstrating the relationship of trust between the defendant

and Gloria Jones Grant and Tyrone Mitch Duren. The closeness of

these relationships is central to establishing the defendant’s

-5-


motive for the charged frauds and to rebutting the defendant’s

claim that he was unaware of the activities of Jones Grant and

others at the nonprofit organizations. Courts have allowed

evidence to be admitted to demonstrate the relationship of trust

between alleged co-conspirators, even where that evidence

involved serious criminal activity. See, e.g., United States v.

Pascarella, 84 F.3d 61, 73 2d Cir. 1996) (affirming the district

court’s admission of a witness’s “past gambling dealings” with

defendants and observing that “evidence of wholly different acts

has been held admissible to show the background of a conspiracy

or the development of a relationship of trust between the

participants”); see also United States v. Basciano, No. 10-3548-

cr, 2012 WL 493401 at *4 (2d Cir. Feb. 16, 2012) (affirming the

district court’s admission of evidence regarding an uncharged

murder because such evidence is “entirely appropriate to explain,

as it did here, the development of criminal relationships and to

illustrate that mutual trust existed between coconspirators”)

(unpulished). Here, quite obviously, the evidence the Government

would elicit does not approach the nature of the evidence in

Pascarella or Basciano, where extensive gambling and an uncharged

murder were appropriately discussed at trial. The Government

expects that certain of the immunized witnesses will admit to

frequent communication with the defendant and the regular

-6-


exchange of cash. Gloria Jones Grant will testify as the nature

of her romantic relationship with the defendant, including the

frequency of communication. In and of themselves, these

activities do not even constitute bad acts. Moreover, as

described above, these are hostile witnesses that the Government

intends to confront with regard to certain aspects of their

testimony. Evidence of their trusting relationships with the

defendant demonstrates bias, which the jury is entitled to

consider in evaluating the witnesses’ testimony. For all of these

reasons, the Government should be permitted to elicit testimony

concerning the closeness of the relationship between the

defendant and these two witnesses.

C. Impeachment of the Hostile Witnesses

Federal Rule of evidence 607 provides that “any party,

including the party that called the witness, may attack the

witness’s credibility.” Moreover, “[w]here the Government has

called a witness whose corroborating testimony is instrumental to

constructing the Government’s case, the Government has the right

to question the witness, and to attempt to impeach him about

those aspects of his testimony that conflict with the

Government’s account of the same events.” United States v. Eisen,

974 F.2d 246, 262-63 (2d Cir. 1992) (emphasis added); see also

-7-


United States v. Bacchus, Nos. 96-1486(L), 96-1557, 1992 WL

138874 at *2, 108 F.3d 1370 (2d Cir. Mar. 18, 1997) (observing

that Government was entitled to impeach its own witness with

inconsistent statements and noting that such impeachment “is not

‘subterfuge’ when the government calls a witness who, prior

inconsistent statements notwithstanding, can testify about other

aspects of the crime that are critical to the government's case”)

(unpublished). In Busiello v. McGinnis, 235 F. Supp. 2d 179, 185

(E.D.N.Y. 2002), the district judge rejected the petitioner’s

claim that the prosecutor at his trial had erred in calling a

witness that the prosecutor knew he would have to impeach with

regard to aspects of his testimony. The court held:

To be sure, the prosecutor had some noticethat Juliano was going to depart from hisprior statements by testifying at trial thathe, not Busiello, started the fight.Nonetheless, it cannot be said that theprosecution called Juliano solely as a meansof getting those prior statements intoevidence. Even though Juliano had changed hisstory with respect to who was the initialaggressor, he legitimately remained animportant source of information about theinjuries he suffered and the cause of thoseinjuries. As such, his testimony wasinstrumental to the prosecution's case, andthe prosecution was entitled to call him as awitness, at which point it was free to elicittestimony material to its case and to impeachthose aspects of Juliano's testimony thatharmed its case.

Id. (emphasis added). Here, as in the cases cited above, there

are critical truthful statements that the Government must elicit

-8-


from the immunized witnesses, such as testimony on the nature of

the relationship between Gloria Jones Grant and the defendant,

testimony regarding the defendant’s participation in the creation

of certain documents, and testimony regarding various statements

made by the defendant in furtherance of the conspiracy. There are

also components of the witnesses’ testimony that the Government

expects it may be forced to impeach, and there are inferences and

conclusions that the Government will ask the jury to draw from

the evidence that may differ from the immunized witnesses’

accounts of events.

CONCLUSION

For the foregoing reasons, the Government respectfully

requests that the Court consider the cited precedent in

anticipation of any contested aspect of forthcoming testimony.

Dated: New York, New York June 24, 2012

Respectfully submitted,

/s/ Karl MetznerSteve C. LeeRandall W. JacksonAssistant United States AttorneysTel.: (212) 637-2476/2314/1029

-9-


Certificate of Service Filed Electronically

The undersigned attorney, duly authorized to represent the UnitedStates before this Court, hereby certifies that on the belowdate, he served or caused to be served the following documents inthe manner indicated:

Government’s Trial Brief - June 24, 2012

Service via Clerk’s Notice of Electronic Filing upon thefollowing attorneys, who are Filing Users in this case:

Anthony L. Ricco, Esq.20 Vesey Street New York, New York 10007 Tel.: (212) 791-3919 Fax: (212) 791-3940 Email: [email protected]

Edward D. Wilford, Esq. 20 Vesey Street New York, New York 10007 Tel.: (212) 528-2741 Fax: (212) 964-2926 Email: [email protected]

Dated: New York, New York June 24, 2012

Respectfully submitted,

/s/ Karl Metzner/Steve Lee/Randall JacksonAssistant United States Attorneys


larry seabrook trial brief 6.24.12

Documents