1Defendant Frank DiPascali, Jr., by his attorneys, Bracewell & Giuliani LLP, respectfullysubmits this memorandum in further support of his application for bail. At the most recenthearing in connection with Mr. DiPascali's bail application, on October 28, 2009, the Courtreserved judgment pending further submissions by the parties regarding (1) the background andfinancial circumstances of the individuals who are prepared to co-sign a bond on Mr. DiPascali'sbehalf, (2) Mr. DiPascali's potential value as a cooperating witness in Madoff-relatedinvestigations and prosecutions, and (3) the proposed application of Fed. R. Cr. P. 35(b) ("Rule35(b)") to Mr. DiPascali's scheduled sentencing. This memorandum addresses the backgroundand financial circumstances of the proposed co-signors, as well as the potential application of Rule 35(b) to Mr. DiPascali's case. We anticipate the Government will file a separatesubmission,
and under seal, addressing Mr. DiPascali's current and anticipated value asa cooperating witness.
I. Procedural History
On August 11, 2009, Mr. DiPascali entered into a cooperation agreement with theGovernment and, pursuant to that agreement, pled guilty to a ten-count information. Followingthe plea, the Court remanded Mr. DiPascali over the objections of Mr. DiPascali and the
The Court indicated that the parties may make applications under seal to protectconfidential information. This memorandum and the referenced exhibits, in accordance withFed. R. Cr. P. 49.1(g), are submitted in redacted form. Pursuant to Rule 49.1(g), counsel for Mr.DiPascali hereby moves this Court to order the sealed filing of a reference list identifying eachitem of redacted information and specifying an appropriate identifier that uniquely correspondsto each item listed. See United States v. Amodeo, 71 F.3d 1044, 1051 (2d Cir. 1995) ("theprivacy interests of innocent third parties . . . should weigh heavily in a court's balancingequation," and "family affairs . . . and similar matters will weigh more heavily against access");United States v. Connolly (In re Boston Herald, Inc.), 321 F.3d 174, 184 (1st Cir. 2003)(personal financial records, such as account balances, are universally presumed private, andinnocent third parties, like defendant's family members, have increased privacy interests); seealso United States v. Strevell, 2009 U.S. Dist. LEXIS 19020, at *13 (N.D.N.Y Mar. 3, 2009)("Numerous courts have found privacy interests worthy of protection such as . . . financialrecords, account information, personal identifiers, [and] third-party letters of support . . . .").