The opinion of the court was delivered by: BATTS
DEBORAH A. BATTS, United States District Judge.
On June 26, 1995, Arthur Blau, the Defendant, was charged in a three-count Indictment with violations of 18 U.S.C. § 1954.
On July 12, 1996, Defendant was convicted on Count Three, acquitted on Count Two and a mistrial was declared as to Count One. Defendant moves for a judgment of acquittal or, in the alternative, for a new trial.
Beginning in or about February 1992, the United States Attorney's Office for the Southern District of New York, the Federal Bureau of Investigation ("FBI"), the Department of Labor ("DOL") and the Internal Revenue Service ("IRS") commenced an investigation into certain real estate transactions involving the Mason Tenders District Council of Greater New York's ("Mason") trust funds. (Snyder Aff. P 1.) The investigation resulted in the issuance of numerous grand jury subpoenas, including a 34-count Indictment, issued on September 10, 1992, charging Ron Miceli, Frank Lupo and Charles Trentacosta with racketeering, conversion of pension fund assets, mail fraud and money laundering. (Snyder Aff. P 3; Doyle Aff. P 13; Blau Ex. A.) The charges centered on the use of Mason pension funds to purchase real estate in Manhattan and Brooklyn at grossly inflated prices from associates of the Genovese Crime Family. (Snyder Aff. P 3.) The bloated prices paid by the pension fund for the real estate were supported by false appraisals prepared by individuals associated with one of the organized crime associates. (Id.) Assistant United States Attorney Orin Snyder was assigned to the case. (Snyder Aff.; Gov't Mem. Law at 9.)
Part of the investigation of Mason included an immunized interview of the Defendant. (Snyder Aff. P 4.) Defendant was a partner in Blau, Soloway, Goldstein & Co., an accounting firm which provided services to Mason. (Doyle Aff. P 7; Maffeo Aff. P 2.) On March 16, 1992, Defendant was served with a grand jury subpoena. (Doyle Aff. P 6; Maffeo Aff. P 2 & Ex. A.) He hired the firm of Bernstein & Maffeo to represent him. (Doyle Aff. P 8; Maffeo Aff. P 2.) They contacted AUSA Snyder seeking information regarding the subpoena and, once learning of the subpoena's background, informed AUSA Snyder that the Defendant would invoke his Fifth Amendment privilege if called before the grand jury. (Doyle Aff. P 8; Maffeo Aff. P 3 & Ex. B.) The Defendant also declined a request that he be questioned about the investigation. (Doyle Aff. P 8.)
On April 3, 1992, a subpoena duces tecum was served on the Defendant. (Doyle Aff. P 9; Maffeo Aff. P 4 & Ex. C.) Upon discussion with AUSA Snyder, it was agreed the subpoena would be addressed to Blau, Soloway, Goldstein & Co. (Maffeo Aff. P 4 & Ex. D.) On June 4, 1992, AUSA Snyder once again expressed an interest in meeting with the Defendant, which request was once again denied. (Maffeo Aff. P 5.) On August 28, 1992, a further subpoena was served on the Defendant requiring handwriting samples and fingerprints. (Doyle Aff. P 11; Maffeo Aff. P 6 & Ex. E.)
On September 9, 1992, by letter from AUSA Snyder, Defendant was informed that he was now a target of the investigation. (Doyle Aff. P 12; Maffeo Aff. P 7 & Ex. F; Bernstein Aff. P 3.) On September 25, 1992, an attorney proffer was made to AUSA Snyder, as to what the Defendant would testify to, if granted immunity. (Doyle Aff. P 14; Maffeo Aff. P 10; Bernstein Aff. P 5.) On October 6, 1992, the Government sought a court order of immunity for the Defendant which was granted by Judge Kevin Thomas Duffy. (Doyle Aff. P 15; Bernstein Aff. P 7.) Pursuant to the Order, Defendant attended one debriefing session, conducted by AUSA Snyder, on October 28, 1992. (Doyle Aff. P 16; Bernstein Aff. P 8; Snyder Aff. P 4; Gov't Mem. Law at 9.)
During the debriefing session, Defendant provided information regarding "his knowledge and recollections concerning the real estate transactions, as well as the role of Frank Lupo and Roger Levin in the perpetration of the fraud." (Doyle Aff. PP 16-17; Bernstein Aff. PP 9-10.) It appears the Defendant made no incriminating statements or admissions about his involvement in the real estate transactions, or any other criminal activity. (11/13/95 Affidavit of Robert S. Franklin PP 12-15; Bernstein Aff. PP 9-10; Snyder Aff. P 4; Gov't Mem. Law at 10.)
Subsequent to the proffer, Defendant supplied, pursuant to subpoena, his personal diaries and telephone logs (collectively "diaries") under the assumption that they would be covered by the grant of immunity.
(Doyle Aff. PP 19-21; Maffeo Aff. P 14 & Ex. G-H: Bernstein Aff. P 13; Snyder Aff. P 6; Gov't Mem. Law at 10.)
On January 7, 1993, Lupo pled guilty to participating in racketeering activities. (Doyle Aff. P 23 & Ex. C; Snyder Aff. P 6; Gov't Mem. Law at 11.) On January 13, 1996, the grand jury returned a superseding Indictment against Miceli and James Massera, who then pled guilty in April 1993. (Doyle Aff. P 22 & Ex. C; Snyder Aff. P 6; Gov't Mem. Law at 11.) The principal difference in the superseding Indictment was the addition of Massera. (Doyle Aff. P 22 & Ex. C; Snyder Aff. P 6; Gov't Mem. Law at 11.)
The criminal investigation thereafter remained dormant until the fall of 1993. (Gov't Mem. Law at 11.) Lupo was sentenced in July 1993, to a 41 month term of incarceration. (Gov't Mem. Law at 11; Doyle Aff. P 24 & Ex. C.) He then contacted an FBI agent two weeks later to explore cooperation. (Doyle Aff. P 25; Gov't Mem. Law at 11-12.) Lupo entered a cooperation agreement on August 9, 1994. (Doyle Aff. P 27 & Ex. D.) On September 2, 1994, Levin entered into a cooperation agreement. (Doyle Aff. P 29 & Ex. E.) On June 26, 1995, a three-count Indictment against the Defendant was handed down. (Doyle Aff. Ex. A.)
At the time Lupo began providing information, AUSA Snyder was no longer involved in the Mason investigation. The Government represents that Snyder did not participate in the Lupo debriefings, nor did he communicate the information Blau had provided to anyone involved in the Lupo debriefings. The Government further represents that AUSAs Koeleveld and Gonzalez were not aware of the October 1992 proffer until the filing of this motion, nor did they use Defendant's diaries.
On July 11, 1995, Defendant retained Robert S. Franklin, pursuant to a written retainer agreement, to defend him at trial, which he ...