l\KIN GUMP

STRAUSS HAUER & FELDLLP

-------- Attorneys at Law

John M. Dowd

202.887.4386I1a)(: 202.887.4288

jdowd@akingump.com

December 14,2009

Via hand delive_ry

The Honorable Douglas F. Eaton United States Magistrate Judge Southern District of New York 500 Pearl Street

New York, New York 10022

Re: Modification of Bail Conditions United Stales v. Raj Rajaratnam et al. Docket No. 09-Mag-2306

Dear Magistrate Judge Eaton:

We write on behalf of our client Raj Rajaratnam to request Your Honor's reconsideration of the terms ofMr. Rajaratnam's release on bail, set initially by Your Honor on or about October 15, 2009. We have conferred with the Govemment which has not indicated its consent to this request.

At Mr. Rajaratnam's initial presentment, Your Honor granted Mr. Rajaratnarn's release upon his signature of a $100 mi II ion persona I recognizance bond, co-signed by five financi ally responsible persons and sec~red by $20 million in cash andlor other assets. I At the bail hearing, the Government sought to have Mr. Rajaratman detained despite the fact that (ij Mr. Rajaratnam is an American citizen living with his entire family including his elderly parents, (ii) poses no danger whatsoever to the community and, (iii) to the contrary, has been a vibrant and philanthropic resident of the New York area for decades.

In setti ng the bail, Your Honor stated that the Court would revisit the terms of Mr. Raj aratnam" s release and reduce the personal recognizance bond ifMr, Rajaratnam cooperated fully with his supervising Pre-Trial Services Officer. See Hearing Tr. (October 29,2009) at 38.:5 - 38:10 (noting that, "frankly, if the pretrial officer reports that everything is going very well, then 1 think it would be logical to return a bit of the money. "). Indeed, Magistrate Judge Katz echoed this

I The bail was subsequently modified by Magistrate Judge Katz on November 5,2009 to permit Mr. Rajaratnam to travel to the contiguous forty-eight states.

One Bryant Park. f New York. NY 10036 I 212.872.1000 I fax: 212.872.1002 I www.akingump.com

AKIN GUMP

STRAUSS HAUEH & ~ELD LP

______ Alln,neys3t Law

The Honorable Douglas F. Eaton December 14, 2009

Page 2

sentiment at a subsequent bail modification hearing brought on Mr. Rajaratnam's behalf on or about November 5, 2009. See Hearing Tr. (November 5,2009) at 10:25 - ] 1:5 ("Judge Eaton, as I recall, said two weeks ago that maybe in the end of November, if things are looking OK, one way or the other, he might be willing to reconsider."). Mr. Rajaratman has fully complied with the terms of his release and has dutifully followed every instruction from the Court and Pre-Trial Services Officer Santos, Accordingly, we respectfully request that Your Honor reduce Mr. Rajaratnaru's personal recognizance bond to 20 million and authorize the release of the $7 million cash posted by Mr. Rajaratnam.

The Court should rest assured that Mr. Rajaratnam will continue to be present for any and all court proceedings in this matter. Me Rajaratnam denies the Government's allegati ns and looks forward to clearing his name. Immediately following his arrest and release on bail, Mr. Rajaratnam issued a document "hold" order for the Galleon offices and had all paper shredders removed. He did so to ensure the preservation of all Galleon records which he f rm ly believes will exonerate him, a concrete demonstration of his intent to defend himself against the allegations contained in the Complaint. Since that time, Mr. Rajaratnam has carefully worked with Galleon to wind down its business, to take care of the Galleon employees negatively affected by the Government's sudden arrest of Me. Rajaratnam and its related press conferences, and to ensure that the financial interests of Galleon's investors were fully protected. Despite these efforts, his bail, as currently constituted, carries the stigma of being the highest such bail in recent memory, far exceeding the terms of release for Bernard Madoff after Mr. Madoff's admission of guilt. Accordingly, we respectfully submit that Mr. Rajaratanam 's complete cooperation and compl iance with the terms of his release and instructions of the Pre-Trial Services Office satisfies Your Honor's concerns and warrants the reduction of his bail.

In addition, several other facts that have emerged since the initial presentment before Your Honor which further support the reduction of Mr. Rajararnams bail. As detailed in our letter to the Court dated October 29, 2009, the Government made numerous errors and misleading arguments in the preliminary bail argument operating from the fundamental misimpression that Mr. Rajaratrnan intended to flee, which he did not. Moreover, at the initial presentment, the Government violated Title 18, United States Code, Section 2518(9) in failing to tum over the wiretap applications prior to using the wiretap intercepts to argue for Mr. Rajaratnams detentiori.f

2 The Government conceded its violation of the statute and sub equently produced the wiretap applications.

AKIN GUM?

STRAUSS HAUER & FELl)Ll.P

______ Ait.orneys at La",

The Honorable Douglas F. Eaton December 14, 2009

Page 3

We have recently confirmed that the Government's disclosures to Your Honor in the Complaint contained serious, material misrepresentations and omissions that call into question the Government's allegations against Mr. Rajaratnam. The Government represented in the Complaint that "CW-I," now known to be Roomy Khan had begun cooperating with the Government only in November 2007 in hopes of receiving leniency in connection with an expected guilty plea to crimi nal charges. See Compl aint, ,-rI8, fn. 1. The Govemment presumably made this representation in an attempt to vouch for the reliability of Ms. Khan, whose purported i nfonnation against Mr. Rajaratnam is the centerpiece of the probable cause offered by the Govenunent to the Court to gain judicial approval for its wiretaps and to seek Mr. Rajaratnam 's arrest. The Government's disclosure with respect to Ms. Khan has proven to be both incorrect and incomplete. Court records that were recently unsealed demonstrate Ms. Khan had been previously convicted in 2002 of wire fraud and had specifically been attempting without success to cooperate with the United States Attorney's Office and the FBI against Mr. Rajaratnarn well before that. We have also learned, based on Ms.Khan's allocution during her plea of guilty to new fraud and obstruction of justice charges on October 19, 2009, that Ms. Khan violated the terms of her prior "cooperation" with the Government and the terms of her probation by engaging in additional criminal conduct subsequent to her 2002 felony conviction.

Furthermore, the Government never disclosed to Your Honor that the Government in fact found no evidence that Mr. Rajaratnam traded on insider information allegedly provided by Ms. Khan resulting from Ms. Khan's purported cooperation against Mr. Rajaratnam earlier this decade, despite an "exhaustive analysis of the labyrinth of accounts associated with Galleon." See Ex. A (United States' Sentencing MemOr3JlduT11 and Motion for Downward Departure) ("Based on information obtained to date, Rajaratnam cannot be tied to illegal insider trading connected to the Intel information. He also did not provide any monetary payment for the [Intel] information."). We respectfully submit that this exculpatory information would have been relevant to the C0U11' consideration of the Government's request for an arrest warrant against Mr. Rajaratnarn and, at minimum, would have directly rebutted the Government's argument at the bail hearing about the purported strength of its case.

For the reasons stated above, we respectfully request that Your Honor reduce Mr. Rajaratnam's bail conditions to permit his release on a $20 million personal recognizance bond, co-signed by five financially responsible persons and secured by Mr. Rajaratnarn's personal property valued at $'13 million, which has already been pledged.

AKIN GUIVIP

5TH USS HAUER & FELDLLP

______ Attorneys at Law

The Honorable Douglas F. Eaton December [4,2009

Page 4

Thank you for Your Honor's consideration of this request

Enclosure

cc: Pre-Trial Services Officer Santos

Respectfully submitted,

John M, Dowd Robert H. Hotz, Jr. Samidh Guha

19 On February 28,2001, the 'United States Attorney filed a one count Information charging 20 defendant Roomy Kahn (,<Kahn") with wire fraud in violation of 18 (_J.S.c. § 1343. On April 3, 21 2001, the defendant pleaded guilty. Defendant's sentencing is set for July 1,2002.

22 The United. States has received and reviewed the Final Presentence Report ("'PSR")

23 prepared by Probation Officer Sonia Lapizco. For the reasons outlined below, the United States 24 respectfully disagrees with the PSR's finaJ Sentencing Guidelines ("Guidelines") calculations .

. 25 The United States believes that the adjusted offense level should be 10, with a sentencing range 26 of 6-12 months, rather than offense level of 13 and sentencing range 12-18 months recommended 27 in the PSR. The United Slates concurs that Kahn's Criminal History Category is I, that the

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NO. CSA·.

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DAVID W. SHAPIRO (NYSBN 20540~f ~"t r~ ~ y ~~/l United States Attorney U '" t'U~J~f, ~

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J. DOUGLAS WILSON (PSBN 44915)

Chief, Criminal Division .

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PATRICK D. ROBBINS (CSEN 152288) Assistant United States Attorney

450 Golden Gate Avenue, l lth Floor San Francisco, California 94102 Telephone: (415) 436-6815

1l1[(fH-AflD W. WIEKIN'G

0.,' CLERK

. ;5. f)_1~rR!CI COURT rfO. DIS f. OF CA. S.J.

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Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALlFORNIA SAN JOSE DIVIS[ON

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UNITED STATES OF AMERICA, Plaintiff,

UNITED STATES' SENTENCING MEMORANDUM AND MOTION FOR DOWtfWARD DEPARTURE

Date: July I, 2002

Time: 1:30p.m.

Place: Courtroom No.8, 4th Floor

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No. CR-OI-20029-JW

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ROOMY KAHN,

Defendant.

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UNDER SEAL

18 I. INTRODUCTION

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appropriate supervised release term is 3 years, and that the appropriate fine range is $3,0 8<foUMEN

$30,000, and that the appropriate restitution range is $70,000 to $120,000.

msr ICTC(;~RT CR:MINAL ASE PRDCF_,~ .

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1 The United States further recommends a three level downward departure, to level seven (or to level 10 if the PSR's calculation is adopted) because the defendant has provided the United States with substantial assistance in the investigation of another person, justifying a departure under Guidelines § 5KI. L This departure would result in a sentencing range of 0 to 6 months (or 6 to 12 months according to the PSR). In either case, the United States recommends a sentence of probation, with the condition that the defendant serve 6 months in community confinement

pursuant to Guidelines § 5Cl.l(c){3), a fine of $30,000; a three year term of supervised release, and restitution to Intel Corporation, Inc. ("Intel") in the amount of $120,000.

II. FACTUAL BACKGROUND

At the time of her offense, Kahn was employed as a Product Marketing Engineer fOI Intel Her position afforded her access to a highly confidential Intel document known as a "book to billing" report. This document contained some of Intel's most closely guarded customer order information. It listed the number of chip orders booked by several dozen major personal computer manufacturers, as well as the number of chips actually shipped.' From the document,

one could discern Intel's probable financial performance for the current and subsequent quarter.

In early 1998, Intel became concerned that its internal financial information was being leaked because an analyst at Needham & Co., Rajesawry Rajaratnam, was predicting Intel's revenue with extreme accuracy. Rajaratnam subsequently quit Needham and founded his own high-tech hedge fund (G alleon Management, Inc.), which he quickly built from nothing to $800

million under management. Intel nevertheless began a monitoring program to determine whether anyone at InteJ was dialing Rajaratnam's number. They learned that Kahn dialed it several times, and sent faxes to Galleon as well.

On its own initiative, Intel set up a hidden video camera at the fax machine. On March 6 and 24, 1998, the camera recorded Kahn faxing the "book to billing" reports for the three primary

Intel Pentium processors for the prior week. In addition, on March 24, Kahn faxed several handwritten pages. According to Intel's CFO, the notations represent Intel's Average Selling Price (or "ASP"), and Units Sold for the first quarter of 1998. By multiplying those numbers,

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OOV'T SENT. MEM.

[No. CR-Ol.20029·1WJ [UNDER SEAL]

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one can determine Intel's total revenue for the quarter. One could also compare the Ql ASP with

2 prior, publicly announced quarters, and determine how well newer, more profitable chips were

3 selling, The "book to billing" reports also contained units sold information for every major PC

4 maker for the quarter, thus providing one key component ofnon-public financial performance for

5 each of thosecompanies as well.

6 Kahn signed a confidentiality agreement when Intel hired her. The "book to billing"

7 reports and ASP information are closely guarded, and tightly distributed within Intel. The reports

8 were each marked "Intel Confidential." After Intel fired Kahn (without disclosing its knowledge

9 of the theft), Kahn went to work for Rajaratnam's company, Galleon.

10 Once confronted by FBI agents about the theft, and after she retained counsel, Kahn

11 entered into a plea agreement with the United States and began to cooperate in an investigation 12 into Rajaratnam's practices. She SUbmitted to several debriefings, described her activities and 13 those of other individuals involved in Rajaratnam's efforts to obtain material, non-public

14 information at several publicly traded companies .. The FBI and SEC investigation into

15 Rajaratnam's activities is continuing. After an exhaustive analysis of the labyrinth of accounts

16 associated with Galleon, however, the SECIFBI has not been able to show that any Galleon trade 17 resulted from Rajaratnarn's possession of the information stolen for him by Kahn from Intel,

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m. DISCUSSION APPLICABLE GUIDELINE CALCULATION

20 A.

21 Kahn has been convicted of wire fraud. The applicable Guideline at the time of the

22 offense was § 2Fl.I. That provision requires an estimate of the value of the loss resulting from 23 the scheme to defraud. As far as the FBI and SEC have been able to determine, after a fairly 24' extensive investigation, Ms. Kahn did not personally profit from her theft of information, The 25 theory under which she was prosecuted for wire fraud was the "deprivation of bon est services')

26 variant of a scheme to defraud. See 18 US.c. § 1343 ("For purposes of this chapter, the term 27 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible 28 right of hones 1 services."); United States v. Lemire, 720 F.2d 1327 (D.C. Cir. 1983). The parties

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rNo. CR~OI-20019-1W] [UNDER SH:AL]

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agreed in the Plea Agreement that a reasonable estimate of the loss amount here was between $70,000 and $120,000_ This agreement attempted to account for the loss to Intel of Kahn's services as a result of her disloyalty and theft.

The base offense level under § 2Fl.l is 6. The loss amount adds 6 levels. With an offense level of 12, Kahn would be entitled to a 2 level downward adjustment for acceptance of

responsibility (which all parties, including the PSR, agree is appropriate). See § 3EI.1. Kahn would have a final offense level of l.O. With a Criminal History Category of I, her sentencing range would be ° to 6 months, in Zone A of the Sentencing Table.

The PSR suggests two upward adjustments, however, with which the United States respectfully disagrees. First, the PSR would add 2 levels to the offense level for "more than

minimal planning" WIder § 2Fl.l(b)(2)(A). PSR 'IJ 20. Second, the PSR would add 2 levels for an «abuse of position of trust or use of special skill" under § 3B 1.3 _ PSR'iI 22. These enhancement would result in au offense level 0 f 16 before any adj ustment for acceptance of responsibility, which is 3 levels rather than 2. See 3 E 1.1 (b) (permitting additional level reduction for o-Wense levels of 16 or more). With a final offense I~vel of 13, Kahn's sentencing range under the PSR's calculations would be 12 to 18 months, in Zone B of the Sentencing

Table.

AN ADJUSTMENT FOR "MORE THAN MINIMAL PLANNING" IS INAPPLICABLE

·20 The PSR adds 2 levels under Guidelines § 2Fl.I(b)(2)(A) on the ground that the

defendant's conduct involved more than minimal planning. Under Guidelines § lBI.I(f) "more than minimal planning" means "more planning than is typical for commission of the offense in a simple form." See also Guidelines § IBl.l Application Note (f). ("More than minimal planning" exists where the defendant takes "significant affirmative steps ... to conceal the offense" or ''repeat[s the illegalJ acts over a period of time, unless it is clear that each instance was purely

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Kahn did not take affirmative steps to conceal her conduct. Although she briefly denied the conduct when confronted by the FBI, she corrected her statements, agreed to plead guilty and

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[No. CR-OJ -20029-JW] (UNDER SEMJ

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9 The PSR adds two levels under Guidelines § 3B 1.3 on the ground that Kahn abused a

10 position of private trust First, Kahn was charged by information with using an interstate wire 11 communication to execute a scheme to defraud and to deprive her employer, Intel, of its

12 intangible right to her honest services as an employee. The offense itself necessarily involves a 13 breach of the trust inherent in the employee/employer relationship. Therefore, the abuse of trust 14 is arguably already found within the base offense level under Guidelines § 2Fl.l. See Guidelines

15 t§ 3BL3 ("This adjustment-may not be employed if an abuse of trust or skill is included in the oft

16 base offense level or specific offense characteristic.").

More importantly, Kahn was not a supervisory level employee at Intel provided with "professional or managerial discretion." Guidelines § 3BL3, Application Note I. She was a lower-level marketing employee, who had access to the stolen information in the ordinary course of her employment tasks. The Application Note to § 3Bl.3 makes clear that the enhancement is meant for persons "subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary." Kahn appears to he more like "the ordinary bank teller or hotel clerk" identified in the Note, whose positions are not characterized by discretion. In addition, although Kahn possessed certain financial skills, Intel apparently did not

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cooperated with law enforcement. The evidence obtained during the investigation reveals that

2 Kahn's acts occurred on two occasions (March 6 and 24, 1999). The first involved the backlog

3 and hilling report. The second involved Kahn's handwritten calculations of the Average Selling

4 Price and units sold for Intel's microprocessor).' Having reviewed the evidence and debriefed

5 Kahn, the United States' view is that these disclosures fall closer to an opportunistic offense in

6 its "simple form' than they do to a complicated, well-planned scheme that spanned a long period

7 of time. It therefore asks the Court not to apply the upward adjustment.

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AN ADJUSTMENf FOR ABUSE OF A POSIT'rON OF TRUST IS INAPPLICABLE

l' Although Kahn admitted in her cooperation debriefings that she sent booking reports on other occasions, this information cannot be used at sentencing. U.S.S .G. § 'I B l.8( a). The PSR's relies on these other thefts - disclosed by Kahn in immunized debriefings - in seeking the enhancement. See also Plea Agreement '1115 (''The government agrees not to use any statements made by the defendant pursuant (0 this agreement against her, ... ").

GOV'T SENT. MEM.

[No. CR-OI-20029-IWJ [UNDER SEAL]

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( hire her as a result of those skills. She was assigned to marketing, not to a financial control or analysis position. Consequently, it is difficult to conclude that her position at the company resulted from the special skill that facilitated her offense (her ability to extrapolate the ASP and unit figures to calculate quarterly revenue). The United States respectfully asks that the Court

not impose this enhancement.

D. THE DEFENDANT SHOULD RECEIVE A TWO LEVEL DOWNWARD DEP,ARTURE ON THE BASIS OF HER SUBSTANTIAL ASSISTANCE

In exchange for Kahn's complete and truthful cooperation with the United States, the government agreed to file a motion pursuant to § SKI.l for a downward departure. Plea Agreement ~ 16. Accordingly, based on the nature and quality of Kahn's assistance in an ongoing investigation, the United States files this motion for a further three level downward departure, will ch ill the United States' view is j usti fi ed by the defendant's post -plea assistant thus

far to law enforcement in the investigation of Rajaratnam. The investigation is not complete.

However, it is unlikely that further assistance will be required from Kahn in the short term, and

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her sentencing at this time is appropriate.

Section 5Kl.l of the United States Sentencing Guidelines enumerates five factors which the Court may consider in addition to others in determining whether to grant the govemmenr's

motion for downward departure based on a defendant's s~bstantial assistance. The United States believes that defendant Kahn's assistance satisfies factors (2). (3) and (5) and respectfully recommends that the Court find under factor (1) that her assistance has been significant and useful as described below.

Factor (2): The truthfulness, completeness. and reliability of allY information or testimony provided by the defendant.

All of the federal agents who questioned the defendant found that the information she provided with respect to her involvement and tbe involvement of Rajaratnam in the offense was truthful; that the information was complete; and that it was reliable. The defendant was debriefed on three separate occasions by Assistant United States Attorneys from two districts

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GOVT SENT. MEM.

[No. CR-0I-20029-JWJ [UNDER SEAll

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( (Northern California and Brooklyn, New York), as well as agents from the Federal Bureau of Investigation and the Securities and Exchange Commission. Kahn provided consistent details regarding her crime, the invo I vement of Raj ararnarn, and others in valved with Raj aratnam in providing information at other public companies.

Factor (3): The nature and extent of the defendant's assistance.

Kahn fully accepted responsibility for her actions in this case, and provided useful

information during her discussions with federal law enforcement agents. The defendant's information regarding the involvement of Rajaratnam in the scheme to defraud Intel was corroborated by independently obtained evidence. It has not led to the prosecution ofRajaratnam at this time for reasons unrelated to the quality of Kahn's assistance. Based on information obtained to date, Rajaratnam cannot be tied to illegal insider trading connected to the Intel information. He also did not provide any monetary payment for the information. The investigators nevertheless consider Kahn's information to be useful from an intelligence standpoint, and continue to investigate several leads she provided with respect to other sources of information for Rajaratnam. The FBI and the SEC anticipate that Kahn's information may be useful in connection with other possible criminal activity on his part, unrelated to Intel.

Factor (4): Any injury suffered. or any danger or risk of injury to the defendant or her family resulting from her assistance.

The United States acknowledges that this factor does not weigh in favor of the downward departure recorrunended herein. To the best of the government's knowledge, the defendant's status as an informant has not been disseminated. There is no indication that Rajaratnam or any associate is dangerous or would pose any risk of physical harm to Kahn.

Factor (5): The timeliness of the defendant's assistance.

Defendant Kahn's cooperation began as soon as she retained an attorney, prior to the government's charging decision. She entered into a plea agreement immediately, and submitted

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[No. CR·OI-20029-IW] [UNDER SEAL]

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to multiple debriefings whenever requested by the government. The information was timely, in

2 that it allowed investigators to obtain relevant records and to corroborate other information they

3 had independently obtained. The United States' motion is tempered only by the fact that the

4 investigation is ongoing. The United States Attorneys Offices involved have thus far declined to

5 bring criminal charges against Rajaratnam based on factors that have nothing to do with Kahn's

6 cooperation. In the government's view) she is nevertheless entitled to some credit for her efforts,

7 which otherwise meet the factors set forth for a departure in the Guidelines.

8 .N. CONCLUSION

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9 For the reasons stated above, the United States recommends a 3 level departure for

10 substantial assistance-under § SKI.l. If the Court agrees and adopts the Guidelines calculation 11 proposed by the United States, Kahn's offense level would be 7 (0 to 6 months); if the Court

12 adopts. the PSR's calculation, the offense level with the departure would be 10 (6 to 12 months). 13 In either case, the United States recommends a sentence of probation with the condition that

14 Kahn spend 6 months in community confinement. The offense of conviction provides for a 3

15 year term of supervised release. Given Kahn's financial situation, the United States recommends 16 a fine at the high end of the applicable range, $30,000, as well as $120,000 in restitution to Intel. 17 Kahn must also pay a mandatory $100 Special Assessment. The United States asks that the

18 Court require her to pay this amount at the time of sentencing.

19 DATED: June 24,2002
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GOV'T SENT. MEM. -8-
[No. CR-Ol-20029-JW] [UNDER SEAL] Respectfully submitted,

DAVID W. SHAPIRO United States Attorney

J. DOUGLAS WILSON

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PATRICK D. ROBBINS Assistant United States Attorney

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the following documents:

UNITED STATES' EX PARTE MOTION FOR EXTENSION OF TIM:E TO RESPOND TO DEFENDANT'S POST TRIAL MOTIONS -

in the case of United States v. Roomy Kalul Case No. CR-Ol-20029-JW was this date served by

facsimile to the following counsel:

John L. Williams Manchester. Williams & Seibert 84 W. Santa Clara Street, Suite 630 San Jose, California 95113-6193 Fax: (408) 287-1554

Ms. Sonia Lapizco

U.S. Probation Officer 280 N. First Street, Suite 106 San Jose, California 95113 Fax: (408) 535-5206

I certify under penalty of perjury that the foregoing is true and correct. z.<"

Executed on J;une 24", 2002, at San Francisco, California.

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KATIE CANNULI Legal Assistant

U.S. Attorney's Office