Affirmation of Judge Benson Everett Legg, sworn to on Jan. 31, 1995, at PP 3-4.
Skrzypczak's testimony confirmed Judge Legg's recollection of the March 3 Teleconference. Specifically, Skrzypczak testified that he participated in the conference and that Judge Legg offered to release portions of Teyibo's assets in exchange for a full accounting of his assets, but that Teyibo declined the option. See Tr. of Hearing, at 41. As for Teyibo's allegation that Judge Legg informed him during the March 3 Teleconference that there was "no criminality whatsoever" in Teyibo's alleged behavior, Skrzypczak testified that Judge Legg made no such statement. Id. at 42-43.
Skrzypczak also testified about the circumstances surrounding Teyibo's appearance at the SEC offices on March 4-5, 1992 for his deposition. Id. at 43-45. According to Skrzypczak, the deposition began on March 4, recessed for lunch, continued in the afternoon and adjourned until the following day. Id. at 43. When the deposition reconvened the following day, Teyibo asked to adjourn the proceedings on the grounds that he wanted to locate certain corporate documents so that he could better respond to the questions and he wanted to see his father-in-law who was sick. Id. at 45. The SEC refused the request to adjourn the deposition, however, in light of the March 3 Order requiring Teyibo to attend the deposition. Id. Skrzypczak also testified that at no time during the deposition did Teyibo assert his Fifth Amendment right not to incriminate himself. Id. at 44. Moreover, the deposition took place in a conference room and Teyibo had access to a telephone throughout the proceedings. Id. at 43, 45.
Finally, Skrzypczak testified that the SEC and the United States Attorney's Office followed standard procedures in pursuing separate civil and criminal investigations. Id. at 23-24. According to Skrzypczak, no one at the United States Attorney's Office ever advised the SEC how to proceed with the civil case. Id. at 23. Moreover, the SEC never was informed that the United States Attorney's Office had convened a grand jury to investigate allegations of fraud against Teyibo. Id. at 24. Further, although an attorney from the United States Attorney's Office in Maryland appeared as local counsel in the civil action, trial strategy was not discussed and the United States Attorney's Office did not participate in any meaningful way.
Id. at 34-35.
I. Due Process
Teyibo argues that the Court should suppress all evidence against him on the ground that the Government has violated his Fifth Amendment due process rights. Specifically, Teyibo argues that his rights were violated as a result of (1) the Government's pursuit of evidence during the civil investigation for use in the criminal proceeding; (2) the Government's failure to provide the required Miranda warnings at his deposition; and (3) Judge Legg's alleged statement during the civil action that there was no criminality in Teyibo's actions.
The Court disagrees.
The prosecution may use evidence acquired in a civil action in a subsequent criminal proceeding unless the defendant demonstrates that such use would violate his constitutional rights or depart from the proper administration of criminal justice. United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir. 1987) (citing United States v. Kordel, 397 U.S. 1, 12-13, 25 L. Ed. 2d 1, 90 S. Ct. 763 (1970)("Kordel"), cert. denied sub nom. Forde v. United States, 488 U.S. 974, 102 L. Ed. 2d 548, 109 S. Ct. 513 (1988)). In Kordel, the Supreme Court, in dicta, set forth certain circumstances that may lead to a finding that a defendant's right to due process has been violated. See United States v. Kordel, 397 U.S. at 12. These circumstances include cases in which (1) the Government pursued a civil action solely to obtain evidence for a criminal prosecution; (2) the Government failed to advise the defendant during the civil proceeding that it is contemplating criminal prosecution; (3) the defendant was without counsel; (4) the defendant reasonably feared prejudice from pre-trial publicity or other unfair injury; or (5) other special circumstances suggest that the criminal prosecution is unconstitutional or improper. Id.
In the present case, the Court finds that Teyibo's due process rights have not been violated. First, the evidence presented at the Hearing indicates that this was not a case in which the Government pursued a civil action solely to obtain evidence for a criminal prosecution. The SEC began its investigation in mid-1991, several months before the United States Attorney's Office began its own inquiry. Moreover, the SEC continued to pursue the civil action for more than two years, ultimately receiving a judgment in February 1994. The record demonstrates that the SEC pursued its own independent investigation of Teyibo's activities and did not consult with the United States Attorney's office in any substantive way. Similarly, the United States Attorney's Office properly conducted its own investigation and maintained grand jury secrecy as is required by federal law. Accordingly, Teyibo's contention that the SEC and the United States Attorney's Office conspired together to accumulate evidence against him for use in a criminal case is without merit.
Second, the defendant received sufficient notice from the SEC that any information could be used against him in a subsequent criminal proceeding. In fact, SEC Form 1662 stated in no uncertain terms that the Government's request for information could be refused pursuant to the Fifth Amendment's protection against compelled self-incrimination. SEC Form 1662 cautioned further of the possibility that the information elicited would be transmitted to the United States Attorney's Office or other federal authorities for criminal prosecution. Teyibo's claim that he never received any such warnings prior to appearing for his deposition is belied by the evidence presented at the Hearing, including the credible testimony of Skrzypczak and signed certified mail receipts of correspondence and subpoenas, including copies of SEC Form 1662, sent by the SEC to Teyibo and the entities he represented.
Third, with respect to Teyibo's claim that Judge Legg informed him that he saw "no criminality whatsoever" in his actions, the Court finds that this statement did not occur. In reaching this conclusion, the Court relies on the evidence presented at the Hearing, namely Judge Legg's affirmation and Skrzypczak's credible testimony denying any such statement.
Fourth, although Teyibo was not represented by counsel at the time he gave his deposition to the SEC, this factor alone does not amount to a violation of the defendant's constitutional rights. SEC Form 1662 notified Teyibo that he had the right to retain counsel during the civil investigation. Moreover, rather than hindering Teyibo's effort at acquiring representation, the SEC encouraged Teyibo by notifying him of his right to counsel in SEC Form 1662 and agreeing to several delays in the civil investigation until he could retain counsel. Further, Teyibo's contention that the assets freeze prevented him from retaining counsel is meritless as Teyibo in fact declined Judge Legg's offer to release certain assets in exchange for an accounting of the assets' source and the proposed use of the funds.
Fifth, although Teyibo suggests that the deposition testimony and other evidence he supplied at the SEC offices were somehow coerced by the SEC, the evidence negates such a finding. Thus, although the March 3 Order required Teyibo to appear at the SEC offices on March 4, 1992 for a deposition, Teyibo was not prevented from asserting his Fifth Amendment right against self-incrimination. See Minnesota v. Murphy, 465 U.S. 420, 427, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984) ("'In the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the [Fifth Amendment] privilege, the government has not 'compelled' him to incriminate himself.'") (quoting Garner v. United States, 424 U.S. 648, 654, 47 L. Ed. 2d 370, 96 S. Ct. 1178 (1976)); see also United States v. Jenkins, 785 F.2d 1387, 1393 (9th Cir.) (rejecting defendant's argument that his deposition testimony given under subpoena should be suppressed, finding instead that "an obligation to appear and testify truthfully does not constitute compulsion to give incriminating testimony"), cert. denied sub nom. Prock v. United States, 479 U.S. 855, 93 L. Ed. 2d 125, 107 S. Ct. 192 (1986). Here, as in Kordel, Teyibo's "failure at any time to assert the constitutional privilege leaves him in no position to complain now that he was compelled to give testimony against himself." United States v. Kordel, 397 U.S. at 10. Additionally, it is readily apparent that Teyibo's appearance at the SEC's office was routine and there is no evidence supporting Teyibo's claim that any other circumstances created a coercive environment.
Under these circumstances, the Court finds that the Government did not violate Teyibo's constitutional rights by simultaneously pursuing civil and criminal actions against him. Nor were Teyibo's rights violated when he voluntarily provided information to the SEC without the assistance of counsel during the civil proceedings. Accordingly, Teyibo's motion to suppress the evidence obtained during the civil investigation is denied.
II. Right to Speedy Trial
Teyibo next argues that the indictment should be dismissed on the ground that his constitutional right to a speedy trial has been violated. Specifically, Teyibo contends that the Government's delay in seeking an indictment as well as the delay in scheduling a trial after the indictment constitute a violation of his Sixth Amendment right to a speedy trial. Teyibo's argument does not withstand scrutiny.
A. Preindictment Delay
It is well-established that the Sixth Amendment right to a speedy trial does not apply to preindictment delay. United States v. Valenzuela-Bernal, 458 U.S. 858, 868, 73 L. Ed. 2d 1193, 102 S. Ct. 3440 (1982); United States v. Marion, 404 U.S. 307, 324, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971); United States v. Elsbery, 602 F.2d 1054, 1058 (2d Cir.), cert. denied, 444 U.S. 994, 62 L. Ed. 2d 425, 100 S. Ct. 529 (1979). "The primary guarantee a citizen possesses against stale or long-delayed criminal charges being made against him is the legislatively enacted statute of limitations." United States v. Birney, 686 F.2d 102, 105 (2d Cir. 1982). The Supreme Court has held, however, that a preindictment delay may constitute a violation of the Due Process Clause of the Fifth Amendment under certain circumstances. See United States v. Lovasco, 431 U.S. 783, 788, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977); United States v. Marion, 404 U.S. at 324. To establish that an indictment should be dismissed because of preindictment delay, the defendant bears a "heavy burden," United States v. Elsbery, 602 F.2d at 1059, of demonstrating that the delay "caused substantial prejudice to [the] right to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." United States v. Marion, 404 U.S. at 324.
Teyibo has failed to prove either substantial prejudice or that the delay was intentional. With respect to prejudice, although the defendant asserts that the preindictment delay caused the loss of potential witnesses and critical records and documents, he fails to specify what evidence is lost and how it may have been relevant to his defense. The defendant's naked assertion that the delay in seeking an indictment caused the loss of evidence is insufficient to show substantial prejudice. See United States v. Doerr, 886 F.2d 944, 964 (7th Cir. 1989) (stating that "'[a] defendant must do more than allege that a particular witness is no longer available and that the witness's testimony would have helped the defense'") (quoting United States v. Antonino, 830 F.2d 798, 805 (7th Cir. 1987)); see also United States v. Finkelstein, 526 F.2d 517, 526 (2d Cir. 1975) (finding that actual prejudice is not shown where the defendant is unable to identify the testimony of a lost witness), cert. denied sub nom. Scardino v. United States, 425 U.S. 960, 48 L. Ed. 2d 205, 96 S. Ct. 1742 (1976); United States v. Long, 697 F. Supp. 651, 657 (S.D.N.Y. 1988) (stating that the defendant's inability to specify the nature of the lost witness's potential testimony amounts to conjecture that fails to meet the burden of establishing substantial prejudice).
The defendant also has failed to demonstrate that the Government's delay was part of an intentional attempt to gain a tactical advantage. In fact, Teyibo offers no proof other than his own bald assertion that the Government made a "deliberate choice" in pursuing the civil case before pursuing the criminal action. Rather, the Court finds that, based on the complex nature of the allegations, the Government properly waited until the evidence indicated that criminal prosecution was warranted. See United States v. Lovasco, 431 U.S. at 794 (stating that "requiring the Government to make charging decisions immediately upon assembling evidence sufficient to establish guilt would preclude the Government from giving full consideration to the desirability of not prosecuting in particular cases"). As the defendant has failed to prove substantial prejudice and intentional prosecutorial delay, the motion to dismiss the indictment based on preindictment delay is denied.
B. Postindictment Delay
The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." U.S. Const. amend. VI. To determine whether a defendant's Sixth Amendment right to a speedy trial has been violated, the court must engage in a two-step inquiry. Doggett v. United States, U.S. , 112 S. Ct. 2686, 2690 (1992). First, the court must determine whether the interval between the indictment and trial is "presumptively prejudicial." Id. Second, the court must employ a balancing test of several relevant factors, including: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972) ("Barker"). None of these factors is necessary to a finding that a defendant's Sixth Amendment right has been violated. Id. at 533. Rather, the court must consider these factors together and make a determination on a case-by-case basis. Id.
In the present case, as the delay between indictment and trial is approximately eighteen months, Teyibo has demonstrated that the delay is "presumptively prejudicial." See United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir.) (suggesting that there is a general consensus that a delay over eight months is presumptively prejudicial), cert. denied sub nom. Moore v. United States, U.S. , 113 S. Ct. 627 (1992); see also Doggett v. United States, U.S. , 112 S. Ct. at 2691 n.1 (stating that the lower courts generally find presumptive prejudice for a delay "at least as it approaches one year"). Nonetheless, Teyibo's claim fails in light of the application of the four Barker factors.
First, with respect to the length of delay, an eighteen-month delay is considerably shorter than the delays in other cases in which courts have found no Sixth Amendment violation. See United States v. Vasquez, 918 F.2d 329, 338 (2d Cir. 1990) (twenty-six month delay did not violate right to speedy trial), cert. denied sub nom. Tanner v. United States, 502 U.S. 1102, 112 S. Ct. 1190, 117 L. Ed. 2d 432 (1992); United States v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980) (twenty-four month delay did not violate right to speedy trial); United States v. Cyphers, 556 F.2d 630, 636 (2d Cir.) (thirty-three month delay did not violate right to speedy trial), cert. denied, 431 U.S. 972, 53 L. Ed. 2d 1070, 97 S. Ct. 2937 (1977); see also United States v. Beamon, 992 F.2d 1009, 1013 (9th Cir. 1993) (seventeen and twenty month delays did not violate right to speedy trial); Flowers v. Warden, Connecticut Correctional Inst., 853 F.2d 131, 134 (2d Cir.) (no constitutional violation where seventeen-month delay), cert. denied, 488 U.S. 995, 102 L. Ed. 2d 588, 109 S. Ct. 563 (1988); Holmes v. Bartlett, 810 F. Supp. 550, 562 (S.D.N.Y. 1993) (no constitutional violation where eighteen-month delay).
Second, the reason for the postindictment delay was due directly to the actions of the defense. Specifically, the trial has been delayed as a result of Teyibo's (1) dissatisfaction with his first appointed counsel, Cary Bricker; (2) requests to hire private counsel before proceeding with a bail hearing; (3) desire to wait and see if any frozen assets would become available to hire private counsel; (4) continued assurances to the Court that private counsel was forthcoming; (5) indecision whether to accept newly appointed counsel or proceed pro se ; (6) refusal to cooperate with his second appointed counsel, Anthony Ricco; and (7) defense counsel's requests for adjournments to file a pre-trial motion. On this record, the Court finds that the defense alone bears the responsibility for any delay in proceeding to trial. See United States v. Blanco, 861 F.2d 773, 778 (2d Cir. 1988) ("A defendant's claim that the government violated her right to a speedy trial is seriously undermined when the defendant, and not the government, is the cause of the delay."), cert. denied, 489 U.S. 1019, 103 L. Ed. 2d 200, 109 S. Ct. 1139 (1989); Clark v. Irvin, 844 F. Supp. 899, 905 (N.D.N.Y. 1994) ("Because the delay was not attributable to the prosecution, and there is no indication that the prosecution deliberately delayed the trial, petitioner was not denied his right to speedy trial.")
Finally, the defendant has failed to demonstrate any prejudice as a result of the postindictment delay.
Although Teyibo refers to the loss of documents and witnesses necessary to the defense, he fails to describe them with any specificity. See United States v. Blanco, 861 F.2d at 780 ("Since delay can just as easily hurt the government's case, [the defendant's] general claim that the delay impaired her defense also lacks force."); United States v. Perez-Cestero, 737 F. Supp. 752, 767 (S.D.N.Y. 1990) (stating that the mere "'possibility of prejudice is not sufficient' to tilt the fourth Barker factor in [the defendant's] favor") (quoting United States v. Loud Hawk, 474 U.S. 302, 315, 88 L. Ed. 2d 640, 106 S. Ct. 648 (1986)). Moreover, Teyibo's claim that his incarceration during the delay constitutes prejudice is without merit given the circumstances of the present case. See United States v. Vasquez, 918 F.2d at 338 (stating that, although seventeen-month pre-trial incarceration may be considered in the assessment of prejudice, it is not sufficient to establish a constitutional violation in all circumstances); Flowers v. Warden, Connecticut Correctional Inst., 853 F.2d at 133-34 (same). Accordingly, Teyibo's motion to dismiss the indictment based on a Sixth Amendment violation is denied.
III. Sufficiency of the Indictment
Teyibo also argues that the indictment should be dismissed on the ground that the Government failed to charge all elements of wire and securities fraud. Briefly, with respect to the wire fraud charges, Teyibo claims that the indictment fails to allege: (1) a scheme to defraud anyone of money or property; and (2) that his alleged misrepresentations were material. Teyibo contends further that his conduct is expressly authorized by 15 U.S.C. § 78o(a)(1). As for the securities fraud charges, Teyibo argues that the indictment fails to allege (1) that he had an independent duty to make disclosures to the broker-dealers with whom he allegedly traded; and (2) the requisite mental state. Teyibo's contentions are not well taken.
A. Wire Fraud
To be legally sufficient, an indictment "need do little more than to track the language of the statute charged and state the time and place . . . of the alleged crime." United States v. Grossman, 843 F.2d 78, 84 (2d Cir. 1988) (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.), cert. denied, 423 U.S. 832, 46 L. Ed. 2d 50, 96 S. Ct. 54, 96 S. Ct. 55 (1975)), cert. denied, 488 U.S. 1040 (1989); see also United States v. Bagaric, 706 F.2d 42, 61 (2d Cir.) (stating that an indictment need only track the statutory language), cert. denied sub nom. Logarusic v. United States, 464 U.S. 840, 78 L. Ed. 2d 128, 104 S. Ct. 133, 104 S. Ct. 134 (1983). The federal wire fraud statute states, in pertinent part:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined . . . or imprisoned . . . or both.
18 U.S.C. § 1343. Therefore, to properly allege wire fraud, the Government must demonstrate (1) a scheme to defraud; (2) money or property; and (3) use of the interstate wires to further the scheme. See United States v. Victor Teicher & Co., L.P., 726 F. Supp. 1424, 1434 (S.D.N.Y. 1989); see also United States v. Mittelstaedt, 31 F.3d 1208, 1216 (2d Cir. 1994) (setting forth parallel elements for federal mail fraud statute).
The instant indictment properly charges all of the elements of wire fraud. Specifically, the indictment alleges that:
From in or about 1991, up to and including the date of the filing of this Indictment, in the Southern District of New York and elsewhere, TEYIBO, unlawfully, willfully and knowingly, having devised and intending to devise a scheme and artifice to defraud, and for obtaining money and property by means of false and fraudulent pretenses, representations and promises, for the purpose of executing said scheme and artifice and attempting to do so, did transmit and cause to be transmitted by means of wire and radio communications in interstate commerce, writings, signs, signals, and sounds, to wit, on or about the dates set forth below TEYIBO made and caused [nine specific wire transmissions].