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.
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:
(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.
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.
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:
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,
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).
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).
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
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,
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
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
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.
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;
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).
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
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
instructed Kelder to draw, sign, and have certified checks for the
same amount from the two Employee Benefit Plan Trusts. (Kelder: Tr.
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).
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).
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: ...