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April 20th 2015 Pre-Trial Hearing Highlights
United States of America v. Selim Zherka

By Mary Keon

At a pre-trial hearing, on Monday, April 20th Our publisher Sam Zherka and his attorneys returned to court in the Southern District of New York for a pre-trial conference. Three topics were discussed:

  1. Whether Mr. Zherka is entitled to a pre-trial taint hearing to determine if the government built their case based upon statements made in illegally obtained wiretaps.
  2. Whether Mr. Zherka’s right to counsel was violated when Federal Agents raided his real estate attorney’s office and made the attorney a cooperator in the case against Mr. Zherka.
  3. Why have Federal Prosecutors not turned over all Brady (any exculpatory evidence found in the course of their investigation) material to the defense?

While Assistant U. S. Attorneys Jacobsen and Carbone assert via an Affidavit that they did not listen to any illegal wiretaps or read any documents regarding them, Mr. Hafetz pointed out that the Affidavit does not state that that they “never spoke to, had communications with, meetings with or conversations with anyone on the state team that was engaged in the illegal wiretap. The state investigation continued for another three years into 2008 and 2009 and then the federal investigation commenced in 2009 into some of the same areas. The FBI was involved with both the state and the federal investigation.” 

The cases cited by Mr. Hafetz noted that a pre-trial taint hearing was at the discretion of the judge and he argued that Mr. Zherka’s Fourth Amendment rights (protection against unreasonable search and seizure) were “flagrantly violated by Federal Agents.” The probable cause was off and there was “a deliberate falsehood by an FBI agent on the state wiretap, therefor the state should not be rewarded for this flagrant misconduct by having a hearing after the trial.”  

Mr. Hafetz asked that every member of the state law enforcement investigative team be identified. He asserted Mr. Zherka’s right to have everyone who worked on that investigation and who was privy to the illegal wiretap be put on the stand along with the federal investigators and questioned. “Did the government team speak to the state team and did they speak about the subject of the wiretap?  We ask whether the state communicated to them any of the information on the illegal wiretap?” Mr. Hafetz also pointed out that it was not likely that FBI Agents would appear at the trial, offering the defense an opportunity to question the manner in which they gathered their evidence.

“I think there were an army of federal agents that worked on this case,” he said. You had feds involved on the state level. It’s an unusual kind of case, in that I don’t think there are that many District Attorney investigations where you get the FBI Involved at the investigation and the wiretap application level. You have federal agents here, I assume all New York office.”

Judge Cathy Seibel said the government’s position is that the defense has to show specific instances where information was obtained from the illegal wiretaps.

Mr. Hafetz countered that there is a distinction between wiretaps used to make a case against Mr. Zherka and impeachment of testimony, and that previous Second Circuit decisions indicate that the defense is entitled to a hearing. Federal investigators by their own admission went to the District Attorney’s office in the early stages of their investigation and at least 10 FBI agents worked on the case.

Judge Seibel pointed out that the burden of proof is still on the defendant to prove that evidence was obtained by taint (illegal wiretaps) and the federal prosecutors state that all they learned was the procedural history of the case.

“That’s what Mr. Jacobson said,” replied Mr. Hafetz.  “The prosecutor, obviously it works with agents. These are agents from the same office, they all work out of the New York field office. We haven’t heard from them as to what they did. Obviously it’s a dynamic interactive process between prosecutors and agents, what do you know, what have you heard; this is how it works.  You have all these agents working on this case and we already had federal agents who were tainted working on the state case and this would be what we would want to ask at the hearing.”

Judge Siebel, referring to the Polizzi case, stated: “Fourth Amendment Law case law is different” and a “defendant who shows that he was the victim of an unconstitutional search must go forward with specific evidence demonstrating taint. Then the burden shifts to the government to show that it acquired its evidence from an independent don’t have to just show that you were the victim of an unconstitutional search. You must also go forward with specific evidence demonstrating taint. And it seems to me after trial you’ll be in a position to do that if indeed there is an issue. You’ll know what the evidence is. It’s hard to do now because you don’t know what the evidence is. All you can do now is say, ‘they haven’t ruled out the possibility that somebody on their team spoke to somebody who knows what’s on the wiretap.’” Judge Seibel ruled that a taint hearing could be held, post-trial, if warranted. She did, however, leave open the possibility of deposing Federal Agents out of the jury’s hearing, if needed.

The second matter discussed, was whether the government violated Mr. Zherka’s right to counsel when they raided the offices of his real estate attorney, Mark Pagani and enlisted him as a cooperator in their case against Mr. Zherka. Mr. Martinez, speaking for the defense, suggested that the only measures taken to protect Mr. Zherka’s rights were the based upon the advice of Mr. Pagani’s counsel. He stated that a designated “taint attorney” should have been enlisted to sort out privileged from non-privileged information so that the government did not learn information it was not entitled to, since Mr. Pagani continued to represent Mr. Zherka after the indictment. Mr. Martinez argued for a pre-trial hearing to ascertain whether or not statements Mr. Pagani made to federal prosecutors where in fact, protected by the attorney-client privilege as it was clear to the defense, based upon documents they have already received that privilege material “has already snuck through,” including “notes of conversations with Mr. Zherka.”…He asked: ”What did Mr. Zherka tell him (Pagani) and did Pagani then share it with the government?”

Judge Seibel stated that the Affidavit from Mr. Hafetz “recounting what his team told him Mr. Zherka would say,” was not sufficient to assert his right to privilege, and instead, an Affidavit directly from Mr. Zherka showing the existence of privilege is necessary. She indicated that if it appeared that if the government offered evidence that in fact appeared to be covered by attorney client privilege, it would be suppressed.

With regard to false statement charges, Judge Seibel directed the government to particularize what representations regarding the amounts of the down payment are in question, the total amount of the down payment they assert is false and which checks they claim in exhibits were “show checks.”

When Mr. Havetz expressed his outrage that a questionnaire filled out by another defendant, helpful in countering the witness obstruction charge was withheld from the court at the bail hearing and then for another three months, nor does he yet have this same witness’s “302 statements, Judge Seibel directed the prosecutors to turn over all material that is covered under the Brady and Giglio guidelines, though she noted that the government can err on the side of caution to aid its case. She also cautioned the defense to turn over whatever was appropriate to the government in a timely fashion.

The next pre-trial hearing is scheduled for June 1st.