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USA v. Metter Et Al Doc 284 Filed 08 Jan 13

USA v. Metter Et Al Doc 284 Filed 08 Jan 13

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U.S. Department of Justice
United States Attorney Eastern District of New York 
SMC/JPN:PSS
271 Cadman Plaza East 
F.#2010R00609
 Brooklyn, New York 11201
January 8, 2013BY HAND DELIVERY AND ECFThe Honorable Dora L. IrizarryUnited States District CourtEastern District of New York225 Cadman Plaza EastBrooklyn, New York 11201Re: United States v. Michael MetterDocket Number 10-CR-600 (DLI)Dear Judge Irizarry:The government writes to provide the Court with theenclosed superseding information, waiver of indictment form andproposed plea agreement in the above-referenced case.
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Pursuantto the Court’s November 25, 2012 Order, the government providesherein the facts and circumstances justifying the terms of theplea agreement, which both parties request the Court approvepursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Theparties are scheduled to appear before the Court on January 14,2013 for a plea hearing.In short, according to the parties proposed agreement,the government will be relieved of its burden of proof at trialand the defendant will plead guilty to a serious felony and bepunished in accordance with the guiding principles of Title 18,United States Code, Section 3553(a).The Plea AgreementAccording to the plea agreement, the defendant wouldplead guilty to a one-count superseding information alleging aviolation of Title 15, United States Code, Section 78ff and thegovernment would agree to dismiss the charges against thedefendant contained in the August 4, 2010 indictment and the
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The government will not file the attachments on ECF,but will separately provide copies to the Court by hand.
Case 1:10-cr-00600-DLI Document 284 Filed 01/08/13 Page 1 of 6 PageID #: 1718
 
2October 14, 2010 superseding indictment in this case. In theplea agreement, the parties agree that the appropriate sentencewould be a period of probation not to exceed five years and a$100.00 special assessment; the amount of any fine and theconditions of probation are left open for the Court to decide.The government has extended this plea offer for the followingreasons.First, the Court has suppressed a substantial amount ofelectronic data that was seized pursuant to lawfully obtainedsearch warrants because the Court determined that the materialswere not searched in a timely fashion following the seizure.While the government is currently pursuing an appeal of thissuppression, it cannot anticipate the result in the SecondCircuit and may, in the end, be without this significant sourceof evidence at trial.Second, during the course of the investigation, thegovernment obtained certain electronic data by subpoena ratherthan by warrant (i.e., the Tabush Drives), and then failed todisclose the drives in a timely fashion consistent with FederalRule of Criminal Procedure 16. In recognition of the potentialissues that might have resulted from the government’s action, thegovernment agreed not to access or review these materials, butmade them available to the defense. This imbalance of availableinformation could potentially impede the government’s ability toprepare for and prevail at trial.Third, the government’s ability to call a cooperatingwitness potentially would be impaired by the fact that thewitness conducted recorded meetings with the defendant followingtheir indictment. The government properly used a “taint team”and turned the recordings over to the defense. Nevertheless,under the circumstances, the government’s trial team would likelynot have access to these recordings before trial and,accordingly, would be unable to anticipate fully crossexamination and properly prepare the cooperating witness.It is against this unique backdrop that the governmentoffered the plea agreement pursuant to Federal Rule of CriminalProcedure 11(c)(1)(C). For the reasons set forth in the balanceof this letter, including the sentencing factors referencedbelow, the government respectfully requests that the Court acceptthe defendant’s guilty plea pursuant to this plea agreement.LawRule 11(c)(1)(C) makes the parties' recommendedsentence binding on the court “once the court accepts the plea
Case 1:10-cr-00600-DLI Document 284 Filed 01/08/13 Page 2 of 6 PageID #: 1719
 
3agreement.” According to the advisory federal SentencingGuidelines (“U.S.S.G.”) Section 6B1.2(c):In the case of a plea agreement that includes aspecific sentence (Rule 11(c)(1)(C)), the Court mayaccept the agreement if the Court is satisfied eitherthat: (1) the agreed sentence is within the applicableguideline range; or (2) (A) the agreed sentence isoutside the applicable guideline range for justifiablereasons; and (B) those reasons are set forth withspecificity in the statement of reasons form.U.S.S.G. § 6B1.2(c).The Guidelines Commentary provides further:The Court may accept an agreement calling for thedismissal of charges or an agreement not to pursuepotential charges if the remaining charges reflect theseriousness of the actual offense behavior. Thisrequirement does not authorize judges to intrude uponthe charging discretion of the prosecutor. If thegovernment’s motion to dismiss charges or statementthat potential charges will not be pursued is notcontingent on the disposition of the remaining charges,the judge should defer to the government’s positionexcept under extraordinary circumstances.U.S.S.G. § 6B1.2 (Commentary).The Superseding InformationPursuant to the plea agreement, the defendant wouldplead guilty to a one-count superseding information charging himwith making false statements in a Form 10-KSB filed with theSecurities and Exchange Commission (“SEC”) in violation of Title15, United States Code, Section 78ff. As set forth in thesuperseding information, the defendant was Chief ExecutiveOfficer (“CEO”) of Spongetech Delivery Systems, Inc.(“Spongetech” or the “Company”) and received compensation of atleast $250,000 from the sale of Spongetech securities, butfalsely stated in the Company’s August 25, 2008 Form 10-KSB filedwith the SEC that he received no compensation.More specifically, between 2007 and 2009, the defendantsolicited investors to buy shares of Spongetech stock, which hadbeen issued to RM Enterprises International Ltd. (“RMEnterprises”). Investors who bought Spongetech stock from RMEnterprises in response to the defendant’s solicitations paid RM
Case 1:10-cr-00600-DLI Document 284 Filed 01/08/13 Page 3 of 6 PageID #: 1720

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