SDNY COURTHOUSE, June 11 – In the US prosecution of Premium Point Investments hedge funders Anilesh Ahuja and Jeremy Shor, the government doggedly tried to show the jury the so-called sector spread and mid-bid mis-marking scams by which the two defendants allegedly overvalued their portfolios.
U.S. District Court for the Southern District Judge Kathleen Polk Failla requested permission to ask her own questions, as to to clarify for the jury the difference between the bid and "mid" price, between the bid and asked.
On June 10, before some post jury arguments, Ahuja's lawyer after receiving a note from him via Lena at the defense table returned to questioning Ashish Dole about the fees that PPI left on the table, by not calling in all pledges and by returning some money they could have managed.
Now on June 11 Judge Failla has kept the case going with this ruling, beginning: "The Court has considered the motion of Defendant Jeremy Shor, which motion is joined by Defendant Anilesh Ahuja, (i) announcing an intention to cross-examine cooperating witnesses Amin Majidi and Frank Dinucci (together, the “Cooperating Witnesses”) regarding certain alterations identified between proposed plea allocutions and the actual allocutions given at their respective guilty plea proceedings; (ii) announcing an intention to call additional witnesses, including counsel for each cooperating witness, “to testify about the Government’s apparent efforts to influence the relevant plea allocutions…”; and (iii) requesting an adverse inference instruction from the Court regarding the timing of the Government’s disclosures. For the reasons set forth in the remainder of this Order, the Court precludes the two forms of testimony identified and denies the requested instruction. After obtaining clarification from counsel during oral argument this afternoon, the Court understands that there are two issues implicated by Mr. Shor’s request. The first issue concerns whether the Government acted improperly in seeking, obtaining, reviewing, and/or commenting on the proposed plea allocutions of the Cooperating Witnesses. On the record before the Court — which includes extensive questioning of those prosecutors with firsthand knowledge of the events — the Court finds no improper conduct. As suggested by its questioning, the Court does not believe that it is per se improper for a prosecutor to review, or even to comment on, a proposed plea allocution. Among other things, the Government has an interest in ensuring that the plea allocution suffices to state an offense. The conduct recalled by the prosecutors in this case was neither improper nor meriting of disclosure to the jury. There is nothing to suggest, for example, that the prosecutors compelled either witness to change his allocution, or that they suggested any modifications that were inconsistent with the substance of the witness’s proffer statements. More to the point, and paraphrasing Mr. Shor’s argument, there is nothing in this record to suggest that “the Government conveyed a message to [the cooperating witness’s] counsel that the proposed allocution should be revised to eliminate portions that would have been favorable to [Defendants] and inconsistent with the Government’s theory of the prosecution, and to replace them with statements that aligned with the Government’s prosecution theory and undercut [Defendants’] defense.” For completeness, the Court intends to inquire of the Cooperating Witnesses’ attorneys, Mr. Seth Rosenberg and Mr. Daniel Zinman, as to their recollections of their conversations with the prosecutors concerning the respective plea allocutions. The Court contemplates that such inquiry will take place outside of the presence of the jury, prior to the testimony of the witness. The Court emphasizes, however, that it intends to steer clear of questions that would implicate the attorney-client privilege held by each of the Cooperating Witnesses. "
On June 9 Ajuha's lawyer Robert Finzi of Paul Weiss wrote to Judge Failla: "Although we are still reviewing the productions, they appear to include material directly relevant to our defense. So, for example, one of the WhatsApp conversations [REDACTED] (The relevant text is being submitted under seal as Exhibit A so that it is not available to Mr. Dole, who is on cross, or his counsel.) While we do not wish to further delay our cross-examination, and plan to proceed with it on Monday morning, we respectfully request that the Court order that (i) the government be precluded from using any material contained in these productions without notice to the defense and leave from the Court; and (ii) that Mr. Dole’s cross be kept open (such that the defense could re-call him for additional cross) until it has had time to review the newly-produced documents and determine what use, if any, it may make of them at trial."
Meanwhile, among the exhibits now made available is Gx 855, a message from Shor to Anish Dole and Majidi, "I’m done giving frank a BJ. Sorry to be crass boss. Back in 3." Watch this site.
