United States v. Zweig
| Decision Date | 05 September 2017 |
| Docket Number | Case No. 16-cr-00208-WHO-1 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JOEL ZWEIG, Defendant. |
| Court | U.S. District Court — Northern District of California |
Re: Dkt. Nos. 52, 53, 54, 56, 58
Defendant Joel Zweig has been charged with wire fraud, obstruction of justice, perjury, aggravated identity theft, and making false statements to a government agency. Zweig moves for disclosure of Brady material, disclosure of 404(b) evidence, dismissal of Counts One, Two, Four, and Twelve of the Indictment, and a bill of particulars. The government moves in limine to preclude Zweig from introducing certain arguments and evidence at trial. I heard argument at the pretrial conference on August 29, 2017. For the reasons stated, I DENY each of Zweig's motions except, because he augmented his motion for a bill of particulars regarding paragraph 18(b) of the Indictment in a motion filed today [Dkt. No. 80-1], I will hold off ruling on that issue until the government has an opportunity to respond. I GRANT IN PART and DENY IN PART the government's motions in limine without prejudice to its ability to raise the denied motions at trial with respect to specific evidence.
Defendant Joel Zweig is a New York attorney. Indictment ¶ 1 [Dkt. No. 1]. On January 9, 2006, Zweig represented EB in a transaction to purchase a company, Better Living LLC. Id. ¶ 6. Better Living LLC was a tenant of a property at 103 Second Avenue, Manhattan, New York, since January 27, 2005. Id. The landlord of that property was Due Milla Realty LLC Group ("Due Milla").
Pet Food Express, Ltd. ("PFE") was a company that operated a chain of pet specialty retail stores primarily in the San Francisco Bay Area, owned by two individuals, MW and ML. Indictment ¶ 3. On February 6, 2004, PFE entered into a contract with Royal Canin USA, Inc. ("RC") to distribute its pet food products. Id. ¶ 7. The contract provided that PFE would receive 5% of all of RC's sales in specific retail territories controlled by PFE, defined as any county in which PFE opened an outlet of at least 2,000 square feet and intended to be a permanent location. Id. ¶¶ 7-8.
On April 5, 2009, PFE brought suit against RC for breach of the 5% compensation provision in the U.S. District Court for the Northern District of California. Indictment ¶ 9. During the discovery process, on November 11, 2010, MW testified that PFE had planned to expand in Manhattan, but did not state that PFE had a lease arrangement in process for a Manhattan store, nor did PFE produce any documents to RC reflecting that PFE had any commitment in place to expand to Manhattan. Id. ¶¶ 10-11. PFE's December 1, 2010 expert damages report, however, claimed $1.6 million in damages directly attributable to a planned PFE retail store in Manhattan. Id. ¶ 12.
On July 26, 2011, approximately one month before the trial date of August 29, 2011, PFE emailed to RC a lease purportedly signed by "Anthony Guida" on behalf of Due Milla and EB on behalf of Better Living LLC, dated January 14, 2008 (the "2008 lease"), for retail space at 103 Second Avenue in Manhattan, New York, notarized by MM. Indictment ¶¶ 13, 15. The lease included an assignment dated July 25, 2011, assigning the 2008 lease to PFE and purportedly signed by EB on behalf of Better Living LLC and MW on behalf of PFE. Id. ¶ 13.
On August 8, 2011, RC filed a "Notice of Potential Fraud on the Court," advising the district court that the 2008 lease and assignment appeared to be fraudulent documents. Indictment ¶ 16. In response, on August 26, 2011, counsel for PFE, JDM, delivered to the district court an "Affidavit of EB" and a declaration of Zweig, filed under penalty of perjury. Id. ¶ 17. Thesedocuments were also electronically transmitted to RC on the same date. Id. In his declaration, Zweig stated that he received the 2008 lease from EB and forwarded it to PFE without reviewing it. Id. He denied any intent to deceive as well as knowledge that it was fraudulent. Id.
On May 17, 2016, Zweig was indicted on four counts of wire fraud in violation of 18 U.S.C. § 1343, two counts of obstruction of justice in violation of 18 U.S.C. § 1503, four counts of perjury in violation of 18 U.S.C. § 1623(a), one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1), and one count of making false statements to a government agency in violation of 18 U.S.C. § 1001(a)(2). See Indictment. The government alleges that beginning no later than November 8, 2010 and continuing until at least August 23, 2013, Zweig devised a scheme to defraud through the knowing and intentional transmission of the 2008 lease to PFE, creation of the "Affidavit of EB" including forgery of EB's signature, and submission of a declaration containing false statements. Id. ¶ 18. The purpose of this scheme was to mislead the district court about the origins of the 2008 lease in order to enable PFE to continue the lawsuit to recover money damages from RC USA and to prevent the court from learning about Zweig's role in preparing the 2008 lease. Id.
In Counts One through Four for wire fraud, the government contends that Zweig transmitted or caused to be transmitted by means of wire in interstate commerce the following four communications:
Indictment ¶ 20. In Counts Five and Six for obstruction of justice, the government charges Zweigwith obstructing justice through the creation of the 2008 lease and the false declaration concerning the lease, as well as the Affidavit of EB and forged signature of EB. Id. ¶¶ 21-24. In Counts Seven through Ten, the government charges Zweig with perjury relating to four false statements in paragraphs 13, 14, 15, and 17 of his declaration. Id. ¶¶ 25-32. In Count Eleven, the government charges Zweig with aggravated identity theft in relation to his use of MM's identity and notarial certification, during and in relation to felony violations of 18 U.S.C. § 1343. Id. ¶ 22-34. Finally, in Count Twelve, the government charges Zweig with making false statements to a government agency when he falsely stated that he was unfamiliar with the details of the PFE lawsuit and had no understanding of how the 2008 lease could have been used to calculate damages in the lawsuit. Id. ¶¶ 35-36.
In Brady v. Maryland, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963). The Supreme Court has since made clear that the duty to disclose such evidence applies even when there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 (1985).
Zweig moves for an order directing the pre-trial disclosure of Brady material. More specifically, Zweig requests all exculpatory and impeachment material, including the name and address of any witness to the offenses that has made a written or oral statement whom the government does not intend to call as a witness in this case. Mot. at 8. In response, the government contends that no such order is necessary, as it understands its obligations under Brady and has provided the defense with proffer agreements pertaining to its three potential trial witnesses. Opp. at 4. The government also contends that Zweig's request is overbroad insofar as it requests names of witnesses to the offenses that have made a written or oral statement whom the government does not intend to call as a witness in this case. Id. at 5.
I understand the government's opposition to state that it has already turned over to the defense any material that could qualify as Brady material, and thus Zweig's motion is moot. I accept the government's representation. Of course, the name and address of any witness to the offenses who has made any written or oral statements whom the government does not intend to call as a witness in this case are potentially within the government's obligations under Brady. Such witnesses may very well have made statements containing facts or observations about the offenses that could prove to be exculpatory to Zweig, and if the government is aware of any such witnesses, it would be required to disclose their names and addresses to the defense. Moreover, the government's Brady obligations are continuing. But unless Zweig has reason to believe that the government is withholding specific evidence and can explain those reasons as well as the evidence sought, a further order concerning Brady obligations is not necessary at this time.
Federal Rule of Evidence 404(b) prohibits the admission of evidence of "a crime, wrong, or other act . . . to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed. R. Evid. 404(b)(1). It permits the use of such evidence, however, for "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2). Under Rule 607, "[a]ny party . . . may attack the witness's credibility." Fed. R. Evid. 607. And under to Rules...
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