P. 1
Rajat Gupta's Filing for Bill of Particulars

Rajat Gupta's Filing for Bill of Particulars

|Views: 4,121|Likes:
Published by DealBook
Rajat Gupta's filing for a bill of particulars.
Rajat Gupta's filing for a bill of particulars.

More info:

Published by: DealBook on Jan 05, 2012
Copyright:Attribution Non-commercial


Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less





Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 1 of 22

Gary P. Naftalis David S. Frankel Stephen M. Sinaiko KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 Avenue of the Americas New York, New York 10036 (212) 715-9100 Attorneys for Rajat K. Gupta UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA : - against : ECF Case RAJAT K. GUPTA, Defendant. No. 11 Cr. 907 (JSR)


X L,3 28 58 3 1 69



Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 2 of 22

Table of Contents Page

KL3 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 3 of 22

Table of Authorities Page(s) Cases

Brady v. Maryland, 373 U.S. 83 (1963) Dirks v. SEC, 463 U.S. 646 (1983) Leka v. Portuondo, 257 F.3d 89 (2d Cir. 2001) United States v. Aliperti, 867 F. Supp. 142 (E.D.N.Y. 1994) United States v. Barnes, 158 F.3d 662 (2d Cir. 1998) United States v. Bin Laden, 92 F. Supp. 2d 225 (S.D.N.Y. 2000) United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987) United States v. Ganim, 225 F. Supp. 2d 145 (D. Conn. 2002) United Skites v. 0 'Hagan, 521 U.S. 642 (1997) United States v. Rosenthal, 1991 WL 267767 (S.D.N.Y. Dec. 3, 1991)
Constitutional Provisions, Statutes and Rules


7 3 8 n.3 5,6

5, 6, 7 7 n.3 10 8 n.3

U.S. Const. Fifth Amendment U.S. Const. Sixth Amendment 15 U.S.C. § 78j(b) 17 C.F.R. § 240.10b-5 Fed. R. Crim. P. 7(f)

1 1 7 7

1,13 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 4 of 22

Table of Authorities (Cont'd) Page Fed. R. Crim. P. 16 Fed. R. Crim. P. 17 Other Authorities Dep't of Justice, United States Attorneys' Manual § 9-5.001(B)(1) (2009) Dep't of Justice, United States Attorneys' Manual § 9-5.001(C)(1) (2009) Dep't of Justice, United States Attorneys' Manual § 9-5.001(D)(1) (2009) 3 3 3 1, 2, 6 15

KL3 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 5 of 22

Defendant Rajat K. Gupta respectfully submits this Memorandum of Law, and the accompanying declaration of Stephen M. Sinaiko, Esq. ("Sinaiko Decl."), in support of his motion to compel the govermnent to (a) provide a bill of particulars, pursuant to Fed. R. Crim. P. 7(f) ("Rule 7(f)"), and (b) comply with its obligation to produce exculpatory evidence under the Fifth and Sixth Amendments to the United States Constitution and under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Preliminary Statement This case is on a very tight schedule, with trial set to begin on April 9, 2012 -- a date the Court has said is "set in stone and will not move." (Exh. B at 6). 1 At arraignment on October 26, the government stated that it needed approximately one week to complete its Rule 16 discovery, and the Court accordingly set a deadline of November 2. then turned to the government's Brady obligations, stating: [The court can't set an overall date for Brady disclosures because it depends on the kind of disclosure. Some disclosures require much more investigation by the defense than others. But certainly would expect that virtually all Brady material other than Giglio material would be provided to the defense no later than two months before trial.

(Id. at 3-4). The Court

(Id. at 7). In light of the schedule set by the Court, Mr. Gupta has repeatedly sought information
he needs in order to prepare his defense, none of which has been provided by the government. On November 17, 2011, Mr. Gupta made a focused request for particulars seeking clarification of a number of vaguely worded allegations in the indictment. (Exh. C). In response to that request, the government has engaged in a pattern of delaying tactics. For example: • The government ignored Mr. Gupta's particulars request for more than two weeks. Only after we wrote a second time did the govermnent c'Exh. " refers to the exhibits annexed to the Sinaiko Decl. "Ind. " refers to the indictment, a copy of which is annexed as Exh. A.

KIL3 2853316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 6 of 22

respond on December 2 that it would advise the defense of its positions on those requests the following week. (Exhs. D, E, F). • When the government failed to respond as it had promised, we made two further written requests, on December 8 and December 15. (Exhs. G, II). • Shortly before 5:30 p.m. on December 29 -- almost another month after its December 2 correspondence -- the government delivered a letter in which it expressed, for the first time, the view that "[i]n light of the extensive discovery that has already been provided," Mr. Gupta is "not entitile[d] .. . to a bill of particulars." (Exh. I at 1). • In its December 29 letter, the government stated that, despite its view that Mr. Gupta was not entitled to a bill of particulars, it would nevertheless "provide particulars" (although, by giving no specifics, it left open the possibility that it would refuse some of Mr. Gupta's requests), but would not do so until some seven weeks' later on February 15, 2012 -- nearly three months after Mr. Gupta's request, and less than two months in advance of the firm April 9 trial date. (Id.). • Moreover, although the government offered on December 2 to provide a list of co-conspirators, subject to an appropriate protective order -- an offer Mr. Gupta promptly accepted -- it never did so and instead reversed field in its December 29 letter, saying it would not supply the list of co-conspirators until some seven weeks later, on February 15, again months after Mr. Gupta's request and shortly before trial. (Exhs. F, G; Exh. I at 1-2). The government's conduct with respect to its Brady obligations has been similarly dilatory. By November 22, approximately a month after arraignment, the government -although it has produced several million pages of Rule 16 discovery material -- had not made any

Brady disclosures. Accordingly, Mr. Gupta wrote the government that day, setting forth a
number of specific requests for information potentially favorable to the defense, either with respect to the substantive charges or for impeachment. (Exh. I). The November 22 letter pointed out that the early February date for Brady materials the Court set at arraignment was an outside deadline for the completion of Brady disclosure, rather than a due date on which all such disclosure was to occur, and that Mr. Gupta would need sufficient time to conduct follow-up

KID 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 7 of 22

investigation after receiving the government's Brady disclosures. The need for follow-up time is especially acute with respect to a number of the particular items, such as potentially exculpatory statements of witnesses, that Mr. Gupta requested on November 22. Mr. Gupta's November 22 letter also pointed out that the—government is well positioned to make prompt Brady disclosures in this case, not just because of the concrete and specific nature of the requests, but also because the parties had engaged in extensive preindictment discussions, "in which [the defense] identified matters we believed were exculpatory of Mr. Gupta." (Id. at 1). Thus, the government has long been on notice of certain of Mr. Gupta's specific defenses. Indeed, it is clear that the government responded to such presentations by the defense by then investigating them for several months prior to indicting. After more than two weeks passed with no response to his November 22 request for Brady material, Mr. Gupta again wrote to the government on December 9, reiterating the need for prompt Brady disclosure: [Me have requested prompt production of these materials in order to have an adequate opportunity to conduct any necessary investigation, and to make use of them at trial. See, e.g., Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001) (finding Brady violation where potentially favorable witness testimony was disclosed late and noting that "the delayed disclosure of evidence tends to impair the opportunity of the defense to use it"). In light of (i) our extensive pre-indictment conversations, in which we identified specific exculpatory matters, and (ii) the specific and focused requests we have made, the government should be in a position to provide Brady material now. See also United States Attorney's Manual § 9-5.001(B)(1) (requiring federal prosecutors to "take a broad view of materiality and err on the side of disclosing exculpatory and impeaching evidence"); § 95.001(C)(1) (requiring federal prosecutors to take a similarly broad view of what information is exculpatory); and § 9-5.001(D)(1) (exculpatory information must be "disclosed reasonably promptly after it is discovered"). Mr. Gupta's motions are due in just over three weeks, on January 3, 2012. Particularly in light of this fast approaching deadline and -3KL3 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 8 of 22

the upcoming holidays, please let us know promptly when we may expect to receive the information we have requested. If the government declines to provide any of the requested information, please so advise, so that Mr. Gupta does not have to wait until the last minute to know whether, and to what extent, he will need to seek relief from the Court. (Exh. K at 1-2). To date, the government still has not responded to Mr. Gupta's November 22 and December 9 letters. By its conduct, the government has managed to consume seven weeks since the time of Mr. Gupta's initial request for particulars and has provided literally nothing to the defense -- not even a statement of its position, including any reasons it may intend to invoke for not complying. As a result, the government has potentially pushed resolution of these issues well into 2012, and created the possibility of unnecessary and wasteful motion practice in the weeks before trial. There is no legitimate reason for the government's delay. At a proceeding before the Court on November 18, in support of the its request to defer depositions in the parallel SEC case, the government suggested that it could be ready for trial in January 2012. (Exh. L at 7). Given that representation, it is inconceivable that the govermnent is unable at this juncture to provide the focused set of particulars and Brady disclosure that the defense has requested. Rather, the government is inappropriately attempting to use the Court's recent order setting a January 31, 2012 deadline for the filing of any superseding indictment as a tool to avoid, for as long as possible, providing particulars and Brady material, thereby prejudicing Mr. Gupta by denying him a reasonable opportunity to conduct follow-up investigation and prepare his defense. Accordingly, and with trial now barely three months away, the government's delaying tactics are prejudicing Mr. Gupta's ability to prepare for trial, requiring us reluctantly to

K.1.3 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 9 of 22

seek the Court's intervention. As we demonstrate in Point I, the Court should direct the government to supply promptly the particulars Mr. Gupta has requested, so as to provide him with a clear understanding of the charges against him. In Point II, we show that the information Mr. Gupta requested on November 22, including statements of witnesses interviewed by the government (and the SEC), whether or not they are anticipated to be witnesses at trial, is plainly within the scope of the government's Brady obligations. In each case, the government surely knows if it has such information. Moreover, many of Mr. Gupta's Brady requests cover matters that we and the government discussed extensively pre-indictment, and that were the subject of government investigation -- investigations that, we believe, yielded substantial information favorable to the defense. Thus, we respectfully submit that the government should not delay until the last possible moment. Rather, the Court should direct the government to respond promptly to each of Mr. Gupta's Brady requests, and to produce responsive witness statements or other information, so that Mr. Gupta will have a meaningful opportunity to use that material to conduct further investigation and prepare his defense. Argument I. THE GOVERNMENT SHOULD COMPLY WITH MR. . GUPTA'S LIMITED REQUEST FOR PARTICULARS Under Rule 7(f), a defendant may seek a bill of particulars to enable him "to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). A defendant is entitled to a bill of particulars where necessary "to provide [him] with sufficient detail to defend adequately the charges against him."

United States v. Barnes,

158 F.3d 662, 665 (2d Cir. 1998). The government cannot "fulfill its obligation merely by providing mountains of documents" in discovery and leaving the defendant to sift through them.

1CL3 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 10 of 22

Bortnovsky, 820 F.2d at 575; see also, e.g., United States v. Bin Laden, 92 F. Supp. 2d 225, 234 (S.D.N.Y. 2000) ("It is no solution to rely solely on the quantity of information disclosed by the government; sometimes, the large volume of material disclosed is precisely what necessitates a bill of particulars."). That is what confronts Mr. Gupta here. Between the October 26 arraignment and the November 2 deadline for Rule 16 discovery, we received approximately 2.2 million pages of documents from the government, the vast majority of which we had not previously seen (i.e., through discovery in the SEC administrative proceeding before it was dismissed), and on November 14 we received thousands of intercepted telephone calls. Since November 2, the government has made ten additional productions of material obtained by grand jury subpoenas, from ten different custodians, totaling over 200,000 additional pages. Given the government's representation to Mr. Gupta and to the Court that it intends to make further production "Ns the Government obtains additional documents pursuant to its investigation and/or preparation," and its continuing use of the grand jury process to obtain information, it appears that more documents are forthcoming. (Exh. M at 1). 2 The millions of pages of discovery Mr. Gupta has already received from the government -- to say nothing of the additional materials we expect to receive -- are just the sort of "mountain of documents" that, as the Second Circuit observed in Bortnovsky, cannot substitute for a bill of particulars. That is particularly so given that the firm April 9, 2012 trial date in this case is now just over three months off. Under these circumstances, as we demonstrate, the Court should direct the government to provide the requested particulars promptly.

We were recently advised of yet an additional grand jury subpoena, to McKinsey, which apparently will result in the production of a substantial volume of yet more documents.

KL3 2.858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 11 of 22

Alle ed Benefit to Mr. Gu ta In order to establish a criminal violation of Section 10(b) and SEC Rule 10b-5 based on alleged tipping, the government must prove that the defendant received a personal benefit in exchange for disclosing material, non-public information. See Dirks v. SEC, 463 U.S. 646, 663-64 (1983). As to this element of the offense, the indictment alleges in generalized fashion that there were "numerous business dealings" between Mr. Gupta and Rajaratnam; that Mr. Gupta "provided the Inside Information to Rajaratnam because of [hisi friendship and business relationships with Rajaratnam"; and that Mr. Gupta "benefitted and hoped to benefit" from those relationships "in various ways, some of which were financial." (Ind.

im 8, 25). But

in order to prepare his defense, Mr. Gupta needs to know how he is accused of benefiting by his alleged disclosure of inside information. The bare statements in the indictment on that subject are insufficient. Consistent with authority in analogous contexts, the Court should direct the government to particularize those allegations, as requested in paragraphs 1, 2, 3 and 12 of the Request. 3


See, e.g., United States v. Ganim, 225 F. Supp. 2d 145, 156 (D. Conn. 2002) (granting request for bill of particulars 'detailing any benefits that defendant allegedly received, solicited or procured in connection with purported kickback and bribery scheme); United States v. Aliperti, 867 F. Supp. 142, 149 (E.D.N.Y. 1994) (granting motion for bill of particulars in extortion case and reasoning that "[b]ecause the Government will be requixed to prove at trial that Defendants obtained payments to which they were not entitled, knowing that the payments were made in return for official acts . . the Court finds that Defendants are entitled to some particularization in this regard, in order to adequately prepare a defense and to avoid unfair surprise at trial"); United States v. Rosenthal, 1991 WL 267767, at *7 (S.D.N.Y. Dec. 3, 1991) (compelling government to provide particulars regarding "favorable investment opportunities" allegedly provided as improper inducement in commercial bribery case). 7

KL3 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 12 of 22

Identities of Alleged Co-Conspirators and Other Persons Referenced in the Indictment The government agreed over a month ago, on December 2, that it would provide Mr. Gupta with a list of alleged co-conspirators referenced in paragraphs 26, 27, 28(d) and 29(a)(y) of the indictment, as well as persons referenced in paragraph 11 of the indictment as having "participated in" and "effectuated" the alleged fraudulent scheme, subject to the terms of an appropriate protective order. Mr. Gupta accepted those terms on December 8, and asked that the government supply a proposed protective order immediately. (Exhs. F, G). The government failed to do so. Instead, nearly a month later on the eve of the motion due date on December 29, the govermnent advised without explanation that it would not fulfill its prior commitment but instead proposed to give the defense a list of co-conspirators on February 15, 2012 -- with the possibility of amendments after that, presumably meaning the government could add new names to the list for the first time as late as two weeks before trial. (Exh. I at 1-2). There is no legitimate reason for this delay. The govermnent has been investigating this matter for several years -- as well as, of course, the Rafaratnam case, which included a number of the same allegations -- and the government well knows whom it considers to be co-conspirators. So that Mr. Gupta may proceed with the investigation of his defenses to the charges against him, we respectfully request that the Court direct the government to supply immediately the particulars sought in paragraphs 5, 13, 14, 15 and 17 of the Request. The "Other Companies" in Which Rajaratnam Allegedly Traded Count One of the indictment accuses Mr. Gupta of providing Rajaratnam with "Inside Information" -- a term defmed to mean "material, non-public information relating to Goldman Sachs and P&G" -- and alleges that, on the basis of such "Inside Information," Rajaratnam "caused the execution of transactions" in the securities of Goldman Sachs, P&G and -8KL3 2853316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 13 of 22

"other companies." (Ind. ¶ 11(c)). But the indictment provides neither information about the identity of these "other companies," nor the dates, times and quantities of securities traded. Moreover, the discovery Mr. Gupta has received to date includes records of a huge number of trades that Galleon conducted, in the securities of a huge number of companies, during the period at issue. In addition, the government has produced thousands of call intercepts resulting from the wiretap of Rajaratnam's cellular telephone, which may or may not contain any evidence bearing on this allegation. Mr. Gupta should not have to comb through the massive discovery he has received in hopes of figuring out which trading in "other companies" the government may have in mind -- assuming it would be possible to do so at all. Rather, the Court should direct the government to provide details concerning the trading in securities of "other companies" to which paragraph 11(c) of the indictment refers, as requested in paragraph 6 of the Request. 4 Allegations in the Indictment as to the
Duties Mr. Gupta Allegedly Breached

In order to establish a criminal insider trading violation against an alleged tipper, the government must prove that the defendant disclosed material, non-public information in breach of a duty. See United States v. 0 'Hagan, 521 U.S. 642, 652 (1997). Here, the indictment asserts that Mr. Gupta breached his obligations as a member of the Goldman Sachs and P&G boards "to maintain the confidentiality of information received in connection with [his] service as [a] director[], and . . . not to provide the information to others for the purpose of securities

In addition, if the government is alleging that Raj aratnam caused trades to be done in Goldman or P&G securities or options, other than those identified in the indictment, on'the basis of "Inside Information" Mr. Gupta purportedly provided, we respectfully submit that the Court should direct the government to identify those trades as well. Likewise, the Court should direct the government to supply particulars, requested in paragraphs 7, 8, 9, 11, 15, 16 and 17 of the Request, concerning (a) the identities of the particular Galleon funds that conducted the trades referenced in the indictment, (b) the amount of the avoided loss referenced in paragraph 22 of the indictment, and (c) the details of the transaction in Goldman Sachs call options referenced in paragraph 29(g) of the indictment. 9

KL3 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 14 of 22

trading." (Ind. ■1111 9, 10). Mr. Gupta is entitled to know precisely which obligations he is accused of breaching. That is particularly so to the extent the government intends to rely at trial on policies either Goldman Sachs or P&G may have adopted, rather than on the fiduciary duty imposed by law on company directors. Accordingly, the Court should direct the government to identify the particular sources of the obligations it claims that Mr. Gupta breached, in accord with paragraph 4 of the Request. II. THE GOVERNMENT SHOULD PROMPTLY RESPOND TO MR. GUPTA'S BRADY REQUEST Mr. Gupta's November 22 letter enumerated a series of specific Brady requests, tied directly to allegations in the indictment or to specific defenses we had previously discussed with the government, and in some cases both. Absent any response from the government, the defense does not know whether the govermnent is going to be making any Brady disclosures (and if so, when), or instead will say it does not have the information Mr. Gupta requested or dispute whether that information comes within Brady. Moreover, if the government intends to wait until the outside deadline of two months before trial for disclosure of "virtually all Brady material other than Giglio," the defense is potentially being prejudiced in its ability to conduct follow-up investigation. Here, too, the government has put us in a Catch-22 bind: We believe, based both upon our own work to date and our discussions with the government, that the government is in possession of information that would be helpful to the defense, and Mr. Gupta's tailored Brady requests focus on areas where we believe this to be true. Yet because the government has not engaged with us at all on Brady -- failing even to state its position -- we eamiot identify with certainty what investigation we will need to pursue based on leads suggested by Brady disclosures.

- 10 IC13 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 15 of 22

Given the fast approaching trial date, we are asking the Court to require the government to respond to each of our Brady requests promptly. The requests are specific and focused, and they call for information which, if it exists, is known to the government. Moreover, the requested information is clearly favorable to the defense within the meaning of Brady, as illustrated by the examples summarized below. Accordingly, the government should make disclosure now, so that the defense has sufficient time to conduct follow-up investigation. 5 False Statements of Government Witnesses

(Request Nos. 1, 15-18, 22)
The government surely has vetted the proffers of its potential witnesses, and just as surely has closely investigated their sworn statements such as tax returns, loan applications and the like. Indeed, it appears that a number of these witnesses testified at the Rajaratnam trial, or were prepared to do so. In at least one instance made known in the Rajaratnam trial, the government determined that a cooperating accomplice witness had lied, and the government made a Brady disclosure to the defense. 6 Under these circumstances, the government has long been in a position to respond to this core Brady request (Request No. 1). The government will seek to introduce three hearsay statements by Rajaratnam against Mr. Gupta at trial, in effect making Rajaratnam a government witness for these

Rather than go through all of the requests in our November 22 letter, we have sought to demonstrate, by listing categories of requested information and summarizing some of the specific requests within those categories, that Mr. Gupta's demand is specific and calls for indisputably exculpatory information. Each of those requests therefore merits a specific response, rather than a mere boilerplate statement that the government knows its obligations and will abide by them.

See Government's Further Opposition to Rajaratnam's Trial Objections to Certain Anticipated Evidence Regarding Information Allegedly Conveyed to Rajaratnam, in US. v. Rajaratnam, S2 09 Cr. 1184 (RJH) (Feb. 14, 2011) ("Government's Further Opposition") (Exh. N).

KL3 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 16 of 22

purposes. 7 Request no. 15 asks for information casting doubt on any of these statements. Once again, the government surely knows if any of the witnesses it has interviewed (including witnesses it does not intend to call at trial) provided information undermining its allegation that Rajaratnam was refening to Mr. Gupta, by, for example, indicating that Rajaratnam made the trades for some other reason or based on another source. Alternatively, a witness may have said that Rajaratnam exaggerated or lied about his sources of information. Indeed, as the government itself has argued, it is frequently the case that co-conspirators lie or exaggerate to one another during the course of their scheme, for a variety of reasons, including to impress or promote their importance to the enterprise. 8 Accordingly, the government should turn over any information tending to show that "Rajaratnam boasted about or exaggerated his contacts and connections with prominent persons or his sources of information, including his alleged sources of material nonpublic information." (Exh. J at 6). 9 Request no. 17 seeks statements by the government, other than those made in court in the Rajaratnam case, that Rajaratnam is untrustworthy or untruthful. •We know of at least one such extrajudicial statement by the government: after Newsweek magazine published an interview of Rajaratnam in its October 23, 2011 edition, a representative of the United States

In each of these statements, Rajaratnam puportedy told a co-conspirator he had received material nonpublic information and, according to the government, referenced Mr. Gupta (although not by name) as the alleged source of the information. (Ind. ¶IJ 17, 21, 24). Government's Further Opposition, at 2 (noting that government witness Ali Far was motivated to tell his co-conspirator Rajaratnam "he had inside information when he did not," because he needed to "exaggerate in certain instances about what he had done to uphold his end of the illegal agreement," and stating generally that "this is not the first time that two individuals engaged in crimes together were less than perfectly honest with one another") (Exh. N). Request No. 16 asks for similar information relating to the supposed statement by Rajaratnam, alleged in paragraph 29(a) of the indictment, that he learned from Mr. Gupta information regarding P&G's sale of its Folgers coffee business. - 12 -



KL3 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 17 of 22

Attorney's Office stated that "[a] number of his assertions [in the interview] are inaccurate," and a representative of the FBI said that statements Rajaratnam attributed to the officers who arrested him "were never uttered." (Exh. 0). Any such statement, in which the government expressed its own doubts about Rajaratnam's veracity -- or simply that he is not to be trusted, even if stopping short of calling him a liar -- would obviously be helpful to the defense, and equally obviously is known to the government. Request no. 18 asks for statements by the government in the Galleon, Rajaratnam or "expert network" insider trading cases in which the government said one of its witnesses lied or exaggerated in a wiretapped conversation. As noted, the government said this was true of accomplice witness Ali Far. If the same is true of another witness on tape -- in other words, a conspirator in exactly the same circumstance as Rajaratnam, captured on tape -- the government should provide that information to the defense. We are not asking the government to search the tapes, only for prior instances where one of its witnesses was caught falsifying or exaggerating on tape and the govermnent said so. 1° Witness Statements That Mr. Gupta Was Not the Source of Any Inside Information and Someone Else Was Here, too, the government surely knows if any witness pointed to a source of inside information other than Mr. Gupta, or contradicted the assertion of a government witness that Mr. Gupta was in fact the source of inside information to Rajaratnam. (Request No. 2). Similarly, the government knows if any witness stated that Rajaratnam was or appeared to be in possession of Goldman or P&G inside information other than the instances alleged in the


Similarly, request no. 22 asks for statements by the government or SEC to any witness or his lawyer tending to doubt the credibility of the witness or any of his statements, or indicating that the witness might be subject to criminal or regulatory charges. (Exh. Jr at 8). - 13 -

KL3 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 18 of 22

indictment (Request No. 4). A statement by a witness saying any of these things would plainly be Brady material. FINRA and SEC Investigations of the Trading in the hidictment As the Court well knows, trading that may be regarded as suspicious in advance of public disclosure of significant company news often triggers investigation by FINRA or another self-regulatory organization such as a stock exchange, or by the SEC. Request no. 8 asks for documents relating to any such investigation, limited to very narrow periods covering the events in the indictment: trading in Goldman securities (June 9-17, September 22-23 and October 15-31, 2008); P&G securities (January 26-29, 2009) or P&G and Smuckers (May 28-June 4, 2008). Once again, the request is narrowly tailored, in two respects. If any such investigation did in fact occur, the government can easily and simply obtain the file and produce it. And this request captures information plainly within Brady. The information provided to FINRA or other investigatory body may well point away from Mr. Gupta. Indeed, the range of alternative explanations for trading in advance of one or more of those five announcements -whether suggestive of a different information source or some other reason for the trading, and whether such explanation reflects misconduct or not -- is vast. Indeed, this request illustrates especially well the need for prompt Brady disclosure. If there was in fact any such prior investigation of the trading, we are likely to need to follow up with witnesses and Rule 17 subpoenas, and perhaps other avenues of inquiry. This all takes time, and we are fast approaching trial.

- 14 B30285E016.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 19 of 22

The July 29, 2008 Call Among the purported overt acts in this case is a July 29, 2008 telephone call, (hid. ¶ 29(j)), which also featured prominently in the Rajaratnam trial. During the call, Rajaratnam discussed with Mr. Gupta the possibility that Goldman Sachs might purchase a commercial bank. At trial in Rajaratnam, the government elicited testimony from Goldman Sachs CEO Lloyd Blankfein that discussion at the June 2008 Goldman Sachs Board meeting, regarding whether Goldman might purchase a commercial bank, was "confidential" and "secret." (Exh. Q at 1731). The government argued in summation that Mr. Gupta breached his duties "not to disclose confidential discussions taking place at the board meetings until the company publicly announces it." (Exh. P at 5242). In sum, the government regards the call as central and supportive of its case, and harmful to Mr. Gupta. As noted, prior to the indictment, we engaged in extensive discussions with the government regarding the facts of the case. Among other things, we argued that there is substantial reason to believe that the fact that Goldman considered purchasing a commercial bank was not secret at all, but instead was public in advance of the July 29 call. Accordingly, Request no. 19 asks for documents or information reflecting or tending to show: (i) that the information relating to Goldman discussed in a telephone call on July 29, 2008, at approximately 5:39 p.m. (see Indictment ¶ 29(j)), had been publicly disclosed by Goldman, prior to the time of the call; or (ii) that any member of the Goldman Board of Directors or senior management was aware that such information had been publicly disclosed by Goldman. (Exh. J at 7).

- 15 KL3 252316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 20 of 22

We presume, but of course cannot know for certain, that the government investigated these matters, either before or after our discussions. The information we requested should be readily available, and its status as Brady material would appear to be indisputable. Deteriorating Relationship Between Rajaratnam and Mr. Gupta We also discussed with the government at length (and did so earlier with the SEC

in the Wells process) that the relationship between the two men deteriorated in 2008, in part
because of Rajaratnam's handling of the Voyager Capital Partners investment fund (see Ind. 8(b)), culminating in Mr. Gupta losing his entire $10 million investment. We have argued that Mr. Gupta's concerns during the relevant period about Rajaratnam's stewardship of the Voyager investment undercut the allegation he would have been motivated to disclose material nonpublic information. The government has investigated Voyager, and the relationship between Mr. Gupta and Rajaratnam, extensively. Request no. 9 seeks any evidence (i) of this deterioration of the relationship, including statements by witnesses (who were surely asked about it); (ii) negative statements by or attributed to Rajaratnam, regarding Mr. Gupta or the relationship (again, witnesses who know both men were surely asked); and (iii) the termination of discussions of another potential business venture between them, referred to in paragraph 8(d) of the indictment. Yet again, the request is focused, it seeks information that is clearly within Brady, and it addresses a subject matter long ago identified as part of Mr. Gupta's defense. Exculpatory Proffers by Other Witnesses We requested that the government turn over presentations or proffers made to the government by counsel on behalf of any potential witness that either exculpate Mr. Gupta or might tend to impeach a witness or evidence presented against him. (Exh. J at 7-8).

- 16 MO 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 21 of 22

In making this request, we are of course at a disadvantage, because we do not know which such witnesses or their counsel may have made a presentation or proffer, nor, therefore, do we know what may have been said. Yet the government should have no reason to resist production of such proffers if they do exist. They are not privileged. We are seeking disclosure only if they contain factual statements about the subject matters in the indictment or that speak about Mr. Gupta or his role. Moreover, to the extent these witnesses were not charged, and even if one or more of them has been designated an unindicted co-conspirator, that suggests their presentations compiled significant exculpatory information. Access to these materials would likely supply helpful leads to the defense in developing its case or assist in witness preparation. And as with many of our Brady requests, time is running short. Conclusion For all of the foregoing reasons we respectfully request that the Court direct the government to supply a bill of particulars as Mr. Gupta has requested, and produce promptly any Brady material it may possess that is responsive to Mr. Gupta's November 22 request. Dated: New York, New York January 3, 2012 Respectfully submitted, Kramer Levin Naftalis & Frankel LLP

/s/ Gary P. Naftalis Gary P. Naftalis David S. Frankel Stephen M. Sinaiko 1177 Avenue of the Americas New York, New York 10036 (212) 715-9100 By: Attorneys for Raj at K. Gupta

- 17 82L3 2858316.9

Case 1:11-cr-00907-JSR Document 17

Filed 01/03/12 Page 22 of 22

You're Reading a Free Preview

/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->