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McCARTHY v. U.S.

January 23, 2004.

ROBERT McCARTHY, Petitioner, -v.- UNITED STATES OF AMERICA, Respondent


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Robert McCarthy was convicted on October 13, 1999 of 24 counts of theft of employee benefit plan funds; money laundering; creation of, and conspiracy to create, false documents required by the Employee Retirement Income Security Act of 1974 ("ERISA"); and embezzlement of bankruptcy assets. He was sentenced on September 13, 2000 to 78 months imprisonment, 3 years of supervised release, a special assessment of $1200, and restitution of $1.6 million. His conviction and sentence were affirmed on November 16, 2001 by the United States Court of Appeals for the Second Circuit. McCarthy, who is currently in prison serving his sentence, has petitioned this Court pro se under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons below, the petition should be denied.

I. BACKGROUND

  A. Procedural History Prior to Trial

  McCarthy was indicted on December 18, 1998. See Indictment, filed December 18, 1998 (Docket #1) ("Indictment"). The 28-count indictment charged McCarthy with the following offenses: Page 2

  (1) Theft of employee benefit plan funds in violation of 18 U.S.C. § 664 (Counts 1-7). These counts charged that McCarthy, while Chief Executive Officer and Executive Vice-President of Lloyd's Shopping Centers, Inc. ("Lloyd's"), had unlawfully directed the transfer of funds out of employee benefit plans sponsored by Lloyd's. One of these plans was a defined benefit pension plan ("Pension Plan") and the other was a defined contribution 401(k) plan ("401(k) Plan") (collectively, the "Employee Benefit Plans"). According to the indictment, monies from these plans were used by McCarthy for the purposes of persons or entities other than the Employee Benefit Plans or their employee beneficiaries. Indictment ¶¶ 1-11.

  (2) Money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). 1956(a)(2). 1957 (Counts 8-25). These counts charged that McCarthy had conducted transactions using monies stolen from the Employee Benefit Plans knowing that these monies represented the proceeds of unlawful activity and that he conducted these transactions to conceal the nature, location, source, ownership, and control of these monies. Id. ¶¶ 12-21.

  (3) Creation of. and conspiracy to create, false documents required by ERISA in violation of 18 U.S.C. SS 371. 1027 (Counts 26-27). These counts charged that McCarthy had made, and conspired to make, false statements to Lloyd's employees in their 1995 year-end statements for their 401(k) Plan accounts. Id. ¶¶ 22-27.

  (4) Embezzlement of bankruptcy assets in violation of 18 U.S.C. § 153 (Count 28). This count charged that McCarthy had embezzled $420,000 from the bankruptcy estate of Discount Harry, Inc. ("Discount Harry"), a company unrelated to Lloyd's and for which McCarthy had acted as the disbursing agent responsible for paying the claims of Discount Harry's creditors. Id. ¶¶ 28-31. Page 3

  On June 4, 1999, McCarthy moved to dismiss various counts of the indictment. See Notice of Motion, filed June 4, 1999 (Docket #7). On July 21, 1999, McCarthy's motion was denied in its entirety by Judge Barrington D. Parker, Jr., who was at that time a United States District Judge. See Transcript of Hearing, dated July 21, 1999 (Docket #60), at 24-35.

  B. Evidence at Trial

  Judge Parker presided over McCarthy's jury trial, which began on September 23, 1999 and ended on October 13, 1999.

  1. The Prosecution's Case-in-Chief

  Lloyd's was a publicly held corporation that had operated two combination supermarket and department stores in Orange County, New York since the 1950's. (Kelder: Tr. 223). It filed for bankruptcy protection under Chapter 11 of the United States Bankruptcy Code in the Southern District of New York on December 1, 1992. (Kelder: Tr. 225). Prior to this filing, Lloyd's had retained the services of Robert J. McCarthy & Co. ("McCarthy & Co."), a consulting company owned by McCarthy. (Kelder: Tr. 225). McCarthy & Co. was hired to consult Lloyd's in its attempt to emerge from bankruptcy. (Kelder: Tr. 225). McCarthy, a certified public accountant, began working at Lloyd's himself at the end of October 1994. (Kelder: Tr. 225). At the time McCarthy was hired, Lloyd's sponsored the Employee Benefit Plans. (McGloine: Tr. 55; Kelder: Tr. 227-28).

  On December 6, 1994, McCarthy reached an agreement with Edmund Lloyd ("Mr. Lloyd"), the owner of Lloyd's, to act as its Chief Executive Officer and Executive Vice-President for an annual salary of $160,000. (O'Reilly: Tr. 525, 528-29, 534). The agreement also granted McCarthy the right to purchase three 18-month options entitling him to buy, in total, 1.5 million Page 4 shares of Lloyd's. (O'Reilly: Tr. 531, 534). If exercised, McCarthy would have been Lloyd's majority shareholder. (O'Reilly: Tr. 531-32). In addition, the agreement provided that McCarthy would receive as part of his compensation ten percent of Lloyd's pre-tax profit per year provided that certain base-level profits were met each year. (O'Reilly: Tr. 535). Thus, if Lloyd's prospered, so would McCarthy.

  At trial, the prosecution presented evidence that, while Chief Executive Officer and Executive Vice-President of Lloyd's, McCarthy (1) stole more than $2 million from the Employee Benefit Plans in order to pay off various corporate debts — namely, a tax lien held by Orange County, a mortgage on Lloyd's properties held by Fleet Bank, and a letter of credit in favor of one of Lloyd's gas suppliers; (2) embezzled bankruptcy funds from Discount Harry in order to satisfy the Orange County tax lien; (3) laundered the monies stolen from the Employee Benefit Plans in transactions intended to disguise their source; and (4) conspired to create, and did create, false ERISA documents by distributing to employees falsified year-end statements for their 401(k) Plan accounts. The prosecution's evidence on each of these schemes will be considered in turn.

  a. Theft of Employee Benefit Plan Funds

  i. Tax Lien Held by Orange County

  In order for Lloyd's to emerge from bankruptcy and avert both a shutdown and liquidation, its reorganization plan needed to be approved by the bankruptcy court. (Kelder: Tr. 350-52; O'Reilly: Tr. 541-42). The bankruptcy court would not approve the reorganization plan, however, unless Lloyd's paid several outstanding debts, the most significant of which was an outstanding $400,000 tax lien held by Orange County. (O'Reilly: Tr. 541-42). Page 5

  McCarthy thus began searching for a source of funds that could be used to pay off the Orange County tax lien in time for the bankruptcy hearing, which was scheduled for December 28, 1994. (Kelder: Tr. 231-39; O'Reilly: Tr. 541-42). In mid-to late-December 1994, McCarthy asked the treasurer of Lloyd's, William R. Kelder, whether Lloyd's employees could take loans from the 401(k) Plan and then use the proceeds to purchase stock in Lloyd's so that the company would have funds to pay the tax lien. (McGloine: Tr. 57-59; Kelder: Tr. 231-32). On December 21, 1994, Kelder contacted the administrator of the 401(k) Plan, State Mutual Life Insurance Company ("State Mutual"), and spoke with the account manager assigned to the 401(k) Plan, Edward McGloine. (McGloine: Tr. 53-54, 57-58; Kelder: Tr. 227-28, 233-35). Kelder had McGloine speak directly with McCarthy. (McGloine: Tr. 58; Kelder: Tr. 235).

  According to McGloine, McCarthy was primarily interested in whether, if a loan program were instituted, the employee participants would be restricted in what they could do with the loan proceeds. (McGloine: Tr. 58). Specifically, McCarthy asked whether the participants could use the loan proceeds to buy stock in Lloyd's "to basically protect their job and invest in the company and try to keep Lloyd's going." (McGloine: Tr. 59). McGloine informed McCarthy that the 401(k) Plan could be amended to permit Lloyd's employees to take a loan from the 401(k) Plan and that they could then use the proceeds however they wished. (McGloine: Tr. 59; Kelder: Tr. 235). McGloine also told McCarthy that any loans would have to be repaid by the employees through payroll deductions. (McGloine: Tr. 59). McCarthy was apparently dissatisfied with this proposal because it required amending the 401(k) Plan, which would take time, and the December 28 bankruptcy hearing was imminent. (Kelder: Tr. 235). Page 6

  Having rejected this option, McCarthy then asked McGloine whether Lloyd's could withdraw monies from the Pension Plan — specifically, $500,000 — and then use these monies to pay off the Orange County tax lien. (McGloine: Tr. 60). McGloine responded that such a transaction would be permissible under the Pension Plan only if Lloyd's could prove that the monies were being transferred to a trust that would be maintained on behalf of the employee participants. (McGloine: Tr. 60). McGloine also told McCarthy that, given that the proposed transaction involved an investment in a bankrupt company — Lloyd's — the transaction would probably be prohibited. (McGloine: Tr. 60-61, 75). McGloine informed McCarthy that, in any event, the proposed transaction would take some time to complete. (McGloine: Tr. 61-62). McCarthy responded that if he could not withdraw the $500,000 immediately, he would seek to cancel both the Pension Plan and the 401(k) Plan with State Mutual. (McGloine: Tr. 62).

  McGloine brought the matter to the attention of his supervisor, Alexander T. Dike, who was Assistant Vice President and General Counsel for State Mutual. (Dike: Tr. 96-98). In turn, Dike spoke with Richard G. Hickey, who was outside counsel for Lloyd's. (Dike: Tr. 98; Hickey: Tr. 1144). Dike informed Hickey that McCarthy's proposal to use $500,000 from the Pension Plan to pay the Orange County tax lien — a corporate tax obligation — would be both imprudent, because Lloyd's was in bankruptcy, and prohibited by ERISA, because it would not be done for the benefit of the employee participants. (Dike: Tr. 98-99). Dike subsequently spoke with McCarthy, relayed the substance of his conversation with Hickey, confirmed that the $500,000 would be used to pay off the tax lien, and told him that in order for the transaction to proceed Lloyd's would need to establish a trust on behalf of its employees and to provide a certification that it had considered and complied with ERISA. (Dike: Tr. 99-100). McCarthy Page 7 replied that State Mutual did not have the authority to withhold the distribution and that it was none of State Mutual's business what Lloyd's did with the $500,000. (Dike: Tr. 100-01).

  McCarthy then contacted Terrence P. O'Reilly, who was a partner at Mickey's law firm, and conveyed the substance of his conversation with Dike. (O'Reilly: Tr. 524, 535-37). O'Reilly researched the proposed transaction's legality and concluded that the transaction would be prohibited by ERISA because it would be done primarily for the benefit of Lloyd's and not for the employee participants. (O'Reilly: Tr. 538). However, O'Reilly also concluded that State Mutual had no authority to withhold the distribution, regardless of the transaction's legality. (O'Reilly: Tr. 538). O'Reilly also researched the penalties that could be levied for engaging in a transaction prohibited by ERISA. (O'Reilly: Tr. 544-46). He concluded that the penalties ranged from civil fines of up to 100% of the value of the transaction to criminal fines and/or imprisonment. (O'Reilly: Tr. 546). O'Reilly relayed these conclusions to McCarthy. (O'Reilly: Tr. 538-39, 546). McCarthy dismissed O'Reilly's concerns and told him to prepare a letter to State Mutual demanding that the $500,000 be released from the Pension Plan. (O'Reilly: Tr. 536-37, 539, 546).

  On December 23, 1994, McCarthy faxed Dike a letter, which had been prepared by O'Reilly, formally requesting that State Mutual release $500,000 from the Pension Plan. (Dike: Tr. 101-02; O'Reilly: Tr. 536-37). On December 27, McCarthy faxed Dike another letter indicating that, because State Mutual had ignored his December 23 letter, he was demanding the liquidation of the entire Pension Plan, in addition to the $500,000 which he had previously requested. (Dike: Tr. 104-06). McCarthy also indicated in this letter that an employee trust had been established with the Bank of New York ("BNY") and that all of the Pension Plan monies Page 8 should be transferred to it. (Dike: Tr. 105; Kelder: Tr. 237). This trust (the "Pension Plan Trust") had been opened earlier in the day by McCarthy and Kelder, with Kelder named as trustee. (Amodio: Tr. 158-59, 162, 165; Kelder: Tr. 237-38, 258-60).

  On December 28, Dike had not yet received McCarthy's December 27 letter. (Dike: Tr. 104-05). But he did fax McCarthy a letter responding to McCarthy's December 23 letter. (Dike: Tr. 102). In his response, Dike specified why State Mutual would not distribute the $500,000 from the Pension Plan as McCarthy had requested. (Dike: Tr. 102-03). First, Dike indicated that the Pension Plan, as written, did not provide for a single, lump-sum distribution and would need to be amended. (Dike: Tr. 103). Second, Dike indicated that State Mutual would need to receive from Lloyd's counsel a certification that the transaction would be in compliance with ERISA. (Dike: Tr. 103-04). Dike did not receive any response from McCarthy until the following day, after the bankruptcy hearing had already taken place. (Dike: Tr. 106).

  At the hearing on December 28, the bankruptcy court confirmed the reorganization plan without McCarthy's using any of the State Mutual funds because, as described further in section I.B.1.b below, McCarthy paid the $400,000 Orange County tax lien using bankruptcy funds that he had embezzled from Discount Harry. Nonetheless, McCarthy continued to pursue the removal of the funds in the Employee Benefit Plans from State Mutual. On December 29, he faxed Dike a letter reiterating his request to have all of the Pension Plan monies transferred to the Pension Plan Trust at BNY. (Dike: Tr. 106-07). The letter also stated that McCarthy had instructed Lloyd's attorneys to file a lawsuit against State Mutual on January 4, 1995 if the funds were not so transferred. (Dike: Tr. 107). On December 30, Dike received two letters, one from O'Reilly and the other from Kelder, both of which relayed McCarthy's instructions that the Page 9 401(k) Plan also be liquidated. (Dike: Tr. 108-10). After receiving these two letters, Dike hired David Duff and Ellen Quackenbos, attorneys at Debevoise & Plimpton LLP, to represent State Mutual. (Dike: Tr. 110-11).

  On January 5, 1995, Dike sent a letter to Kelder responding to Kelder's December 30 letter. (Dike: Tr. 111-12). He indicated that the 401(k) Plan would not be liquidated because Lloyd's counsel had not yet certified that the transaction would be in compliance with ERISA and the Internal Revenue Code. (Dike: Tr. 112). Thereafter, between January 5 and January 12, McCarthy, Kelder, O'Reilly, Dike, Duff, and Quackenbos engaged in negotiations to structure the transfer of the monies in the Employee Benefit Plans and to arrive at a mutually agreeable certification. (Dike: Tr. 112-19). On January 13, with no agreement having been reached, McCarthy faxed Dike a letter, which had been prepared by O'Reilly, stating that he intended to file a complaint against State Mutual with the Department of Labor. (Dike: Tr. 120-22; O'Reilly: Tr. 551-53). Attached to this letter was a letter on Lloyd's letterhead from McCarthy to the regional director of the New York State Department of Labor. (Dike: Tr. 120, 125-26). Although McCarthy indicated that "[t]he attached letter [was] going to be mailed today," it was never sent and was later found in McCarthy's desk still sealed after he was fired in February 1996. (Dike: Tr. 122, 126; O'Reilly: Tr. 577).

  Dike responded to McCarthy's letter on January 16, again stating that State Mutual would release the funds in the Employee Benefit Plans only upon receiving an appropriate certification. (Dike: Tr. 122-23). On January 17, McCarthy and Kelder caused another trust at BNY to be opened (the "401(k) Plan Trust") (collectively with the Pension Plan Trust, the "Employee Benefit Plan Trusts"), again with Kelder named as trustee. (Amodio: Tr. 158-59, 163-65; Page 10 Kelder: Tr. 258-59). On January 18, McCarthy faxed Dike a letter signed by both McCarthy and Kelder certifying that the Employee Benefit Plan Trusts had been created and that the monies from the Employee Benefit Plans would be managed and invested in compliance with ERISA. (Dike: Tr. 124-25). On January 20 or January 21, State Mutual liquidated the Pension Plan and the 401(k) Plan and sent checks for the balance of each account to Lloyd's; one of the checks was payable to the Pension Plan Trust and the other to the 401(k) Plan Trust. (McGloine: Tr. 67; Dike: Tr. 127; Kelder: Tr. 260; O'Reilly: Tr. 555-56). Kelder then deposited these checks into the respective Employee Benefit Plan Trusts at BNY. (Kelder: Tr. 260; O'Reilly: Tr. 555-56).

  Less than a week later, McCarthy began transferring these monies to accounts under his control. On January 26, McCarthy signed a wire transfer request directing that $300,000 be wired from the Pension Plan Trust to an account at National Westminster Bank (the "Alliance Account") held by a company named Alliance Capital Design Group, Ltd. ("Alliance"). (Kelder: Tr. 261-63; Fries: Tr. 437, 441-42). Alliance was a corporation partially owned by McCarthy that had been created as a holding company to sell franchise rights and to receive franchise payments for Gibraltar Transmission, a muffler repair business also partially owned by McCarthy. (Salas: Tr. 411-12; Fries: Tr. 435-36). Alliance was not a financial services firm and was not in the business of administering employee benefit plans. (Salas: Tr. 412). McCarthy had Kelder deliver the wire transfer request to BNY. (Kelder: Tr. 261-62). The $300,000 was transferred to the Alliance Account on January 26. (Fries: Tr. 441-42). Kelder testified that he believed erroneously at the time that Alliance was a large Wall Street investment firm. (Kelder: Tr. 262-63). Page 11

  In February or March of 1995, Edward Fries, who maintained Alliance's books, noticed the $300,000 transfer and asked McCarthy about it. (Fries: Tr. 437, 441-42). McCarthy told Fries that the money belonged to Lloyd's, that he should ignore it, that he should not use it for Alliance expenses, and that it was going to be returned to Lloyd's after a short while. (Fries: Tr. 442).

  ii. Mortgage Held by Fleet Bank

  As part of the bankruptcy reorganization, McCarthy had been meeting with representatives of Fleet Bank ("Fleet"), which held a mortgage secured by the Lloyd's properties in Orange County (the "Fleet Mortgage"). (Kelder: Tr. 263-64; Kehoe: Tr. 455-57). Prior to the bankruptcy hearing in December 1994, Fleet agreed to extend the payment date of the Fleet Mortgage by two months, from April 1, 1995 to June 1, 1995, but insisted that Lloyd's lease a portion of the properties or try to sell them by June 1, 1995. (Kelder: Tr. 264; Kehoe: Tr. 455-58). If Lloyd's failed to meet these conditions, escalating penalty clauses, beginning at $15,000 per month, would have taken effect and would have further reduced Lloyd's chances of emerging from bankruptcy. (Kelder: Tr. 264; Kehoe: Tr. 457-58; McGowan: Tr. 474).

  Beginning in January 1995, McCarthy began exploring whether monies from the Employee Benefit Plans could be used to pay down the Fleet Mortgage. (Kelder: Tr. 264-65; Kehoe: Tr. 458-59). McCarthy discussed several proposals with O'Reilly. The first would have had the Employee Benefit Plans directly loan funds to Lloyd's so that Lloyd's could purchase the properties secured by the Fleet Mortgage, with the Employee Benefit Plans taking a mortgage on the properties. (O'Reilly: Tr. 556-57). O'Reilly informed McCarthy that this transaction would be prohibited by ERISA because it would be done for the benefit of Lloyd's and not the Page 12 employee participants and because ERISA's diversification rules prohibited investing the bulk of the Employee Benefit Plans' assets in a single investment. (O'Reilly: Tr. 557). McCarthy then proposed having the Employee Benefit Plans purchase the property outright. (O'Reilly: Tr. 557). O'Reilly informed McCarthy that this transaction also would be prohibited by ERISA's diversification rules. (O'Reilly: Tr. 557-58).

  In May 1995, McCarthy asked O'Reilly whether the monies in the Employee Benefit Plan Trusts could be transferred to "an independent investment company" — referring to Alliance — which would then loan the money to Lloyd's, take a mortgage to secure the loan, and return mortgage-backed securities to the Employee Benefit Plan Trusts. (O'Reilly: Tr. 558). O'Reilly told McCarthy that using a straw company to do indirectly what could not be done directly would not validate the transaction and that it would still be prohibited by ERISA. (O'Reilly: Tr. 558-59). McCarthy replied that he was "getting tired of hearing `no' from my lawyers." (O'Reilly: Tr. 559).

  Notwithstanding O'Reilly's advice, McCarthy went ahead and used monies from the Employee Benefit Plan Trusts to pay down the Fleet Mortgage. (O'Reilly: Tr. 560). McCarthy had Kelder go to BNY and initiate wire transfers to Alliance for $1,115,000 (from the Pension Plan Trust) and $635,000 (from the 401(k) Plan Trust). (Kelder: Tr. 265-66). Kelder understood that McCarthy intended to use these monies through Alliance to pay down the Fleet Mortgage. (Kelder: Tr. 266-67). In return, Fleet would extinguish the mortgage on one of the two Orange County properties, leaving the other as security for the remaining loan balance. (McGowan: Tr. 475, 485). Because the wire transfer documents were signed only by McCarthy and not by Kelder (the trustee), however, BNY would not accept them. (Kelder: Tr. 267). McCarthy thus Page 13 instructed Kelder to draw, sign, and have certified checks for the same amount from the two Employee Benefit Plan Trusts. (Kelder: Tr. 268-71).

  On June 14, Kelder signed two checks, one from each of the Employee Benefit Plan Trusts, and brought them to BNY to be certified. (Amodio: Tr. 184-85; Kelder: Tr. 270-71). Because these were trust accounts, BNY asked for additional documentation concerning how Alliance intended to use these trust funds. (Kelder: Tr. 271). Kelder conveyed this to McCarthy and was told by McCarthy that "he would take care of it." (Kelder: Tr. 271). Later that day, Kelder received a fax copy of an unsigned letter written on Alliance letterhead from Herbert N. Salas to Kelder, as trustee. (Amodio: Tr. 185-86; Kelder: Tr. 273). Salas was one of McCarthy & Co.'s accountants. (Kelder: Tr. 273; Salas: Tr. 407-09). The letter stated that Alliance had obtained a mortgage-backed investment for the Employee Benefit Plan Trusts that would earn interest of eight percent. (Amodio: Tr. 186). This statement was false, however, because Alliance had never obtained such a mortgage. (Pan: Tr. 519-20). After Kelder received the letter, McCarthy had him obtain Salas's signature and then fax the letter to BNY. (Amodio: Tr. 185-86; Kelder: Tr. 273-74; Salas: Tr. 410-12). The checks were then certified and given to McCarthy by Kelder. (Kelder: Tr. 274). The next day, June 15, McCarthy went to the Middletown branch of Fleet, opened a corporate account in the name of "Lions Capital Design Group Limited" (the "Lions Account"), and deposited the certified checks (totaling $1,750,000) into this account. (Vance: Tr. 429-34). McCarthy apparently intended to open the account in Alliance's name but, because of a clerical error made by Fleet, it was opened with the Lions name instead. (Vance: Tr. 432). Page 14

  On June 22, a closing was held on the Fleet Mortgage. (McGowan: Tr. 476). Among those in attendance were McCarthy, Hickey, and Mr. Lloyd. (McGowan: Tr. 477). Fleet extinguished the mortgage on one of the two Orange County properties, leaving the other as security for the remaining balance. (McGowan: Tr. 475, 485). For payment, McCarthy wired $1,750,000 from the Lions Account to a Fleet corporate account. (McGowan: Tr. 478-79, 481-83). However, Lloyd's needed an additional $50,000 to fully meet its obligations under the Fleet Mortgage. (McGowan: Tr. 483). Accordingly, McCarthy arranged a $50,000 wire transfer from the Alliance Account. (McGowan: Tr. 477, 482-83). By satisfying this portion of the Fleet Mortgage, Lloyd's avoided the imposition of the penalties that had been provided for when Lloyd's and Fleet agreed to amend the Fleet Mortgage prior to the bankruptcy hearing. (McGowan: Tr. 485).

  iii. Letter of Credit

  After transferring the monies from the Employee Benefit Plans into the Alliance Account and the Lions Account, McCarthy began using those funds to bolster Lloyd's precarious financial position. In March 1995, McCarthy used monies from the Alliance Account to guarantee a Lloyd's corporate obligation — namely, a $50,000 letter of credit owed to Warex Terminal Corporation ("Warex"), the gas supplier for Lloyd's service stations. (Amodio: Tr. 179, 183). McCarthy wired $50,000 from the Alliance Account to his own personal account at BNY. (Fallik: Tr. 724-25).*fn1 On March 15, 1995, he used these funds to purchase a one-year, $50,000 certificate of deposit with BNY. (Amodio: ...


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