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UNITED STATES v. GAIND

September 28, 1993

UNITED STATES OF AMERICA
v.
ARUN GAIND, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Defendant Arun Gaind was sentenced on June 11, 1993 to thirty-three (33) months for false statements contrary to 18 USC 1001 and related crimes in connection with contracts for testing material for the Environmental Protection Agency. The case involved large-scale re-dating of test reports relating to samples of potentially polluted material submitted to Mr. Gaind's firm in order to permit the EPA to prepare for possible litigation. The "time travel" of the dates of the reports caused them to appear timely when in fact they were not.

 The principal issue at the trial was the extent of Mr. Gaind's knowledge of and responsibility for this activity. Mr. Gaind and various former employees testified and gave contradictory versions of the events involved. The credibility of these clashing witnesses and the implications of the facts to which they testified were the central issues in the trial.

 The testimony at trial indicated that Mr. Gaind was an extremely energetic, highly motivated hands-on chief executive officer who kept informed of everything of significance which was going in his organization, and who tolerated very little opposition to or evasion of his directives. *fn1"

 The distinct impression was created by Mr. Gaind's testimony and demeanor that it was his view at the time of the events involved and at the time of his testimony, if not necessarily at the time of his sentence, that the end justifies the means rather than the more accurate one that the means chosen determine the end achieved.

 Mr. Gaind has moved through his counsel for bail pending appeal on the grounds that a substantial issue is raised by events at the trial, although no relevant objections by defense counsel were ever made and overruled:

 (a) questions put by the United States Attorney without objection on redirect examination of former employees of Mr. Gaind's company, concerning promises to tell the truth contained in cooperation and nonprosecution agreements, and

 (b) certain questions put to Mr. Gaind when he took the stand as to whether such witnesses were mistaken.

 No objections were made at all to the disclosures of the cooperation and plea agreement. All objections made to the questions concerning whether the prosecution witnesses were mistaken were sustained.

 Mr. Gaind argues that the prosecution's conduct may constitute plain error of a prejudicial nature. I disagree and deny the application for bail pending appeal.

 II

 The credibility of cooperating defendants and persons promised immunity is inherently problematic. Such persons by implication did or may have engaged in improper behavior. They may also have an incentive to report others, whether guilty or not, as a way of securing favorable treatment for themselves under U.S. Sentencing Guidelines ยง 5K1.1 or by virtue of being given immunity in return for testimony. *fn2" Excessive reliance on such sources of information rather than witnesses willing to testify of ...


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