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United States v. Atias

United States District Court, E.D. New York

February 10, 2017

UNITED STATES OF AMERICA,
v.
SOPHIA ATIAS and JOSEPH ATIAS, Defendants.

          For the Government: Robert Capers United States Attorney Eastern District of New York By: Charles Kelly, A.U.S.A.

          For Sophia Atias: LaRusso Conway & Bartling, LLP By: Robert P. LaRusso, Esq.

          For Joseph Atias: Law Offices of Jeffrey T. Schwartz By: Jeffrey T. Schwartz, Esq.

          MEMORANDUM AND ORDER

          Denis R. Hurley United States District Judge

         The purpose of this Memorandum and Order is to address the two pending in limine motions.

         I. Government's Motion to Preclude Defense From Calling Paula Berckhoff (“Berckhoff”) as a Trial Witness

         Berckhoff is the spouse of Nicholas Pellegrini. She was an indicted coconspirator along with her husband and the Atiases until the government successfully sought the dismissal of the charges against her.

         In seeking to preclude the defense from calling Berckhoff as a witness, the government contends, as a general proposition, that anything she may have to say is irrelevant. (Govt's Letter of Feb. 7, 2017 at 1(“Defendants' arguments do not support the proposition that Paula Berckhoff would testify to any material facts.”).) But particularly troubling to the prosecution is the defendants' expressed intention to inquire as to the disposition of charges originally lodged against her. That line of inquiry is labeled by the government as both “irrelevant and prejudicial, ” and subject to preclusion via the operation of Rule 403. (Govt's Letter of June 8, 2016 at 1-3.)

         As to the government's blanket objection, [1] the defense proffers and the government has not convincingly disputed, “that Paula Berckhoff's fingerprints are all over the two transactions which are the subject matter of this Indictment.” (Defs.' Letter of June 10, 2016 at 2.) Such fingerprints include “that her notarized signature [appears] on many bank, corporate, and closing documents” utilized to effectuate the charged fraud.[2]

         Under the circumstances, there is no legitimate basis to prevent Berckhoff from being called as a witness for she obviously has some information about the facts underlying, or at least bearing on, the charged bank fraud. Whether her testimony, if elicited, will aid the defense is an open question. But to “close that door” on the information and arguments advanced would unduly infringe on the defendants' right, albeit not obligation, to mount a defense.

         With respect to the government's objection to Berckhoff's being asked questions about the disposition of her case, the question arises whether that testimony is relevant for any material purpose. To the extent she testifies for the defense, it may be helpful to the jury in evaluating her credibility and possible bias towards the prosecution to learn of the dismissal of her case. Moreover, the government presently “does not object to the defense addressing these matters on the cross examination of defendant Nicholas Pellegrini.” (Govt's Letter of Feb. 7, 2017 at 2.) Left unexplained is the rationale for trying to prevent the same subject from being pursued with Berckhoff beyond a possible objection based on cumulativeness under Rule 403.[3]

         In sum, and based on the information provided, the government's argument intended to bar Berckhoff from taking the stand on behalf of defendants is not convincing. She apparently has relevant information about the purported fraud, including the supposedly central role played by prosecution witness Pellegrini. To the extent she is no longer a named defendant, that information bears on possible pro-government bias harbored by her husband and conceivably herself.

         II. Government's Application Concerning Atiases' Advice of Counsel Defense

         By letter dated June 10, 2016 (amended on June 11, 2016), defendants set forth their belief that “the evidence will show that our clients relied upon the advice of counsel and participated in the short sale and subsequent transfer to Sacred Heart Academy without any intention of defrauding the Bank of America. Pellegrini is one of three lawyers that counseled and or dealt with ...


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