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UNITED STATES v. BERTOLI

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


March 30, 1994

UNITED STATES OF AMERICA, Plaintiff
v.
RICHARD O. BERTOLI, Defendant.

LECHNER

[EDITOR'S NOTE: PART 1 OF 3. THIS DOCUMENT HAS BEEN SPLIT INTO MULTIPLE PARTS ON LEXIS TO ACCOMMODATE ITS LARGE SIZE. EACH PART CONTAINS THE SAME LEXIS CITE.]

TABLE OF CONTENTS

Facts

 Discussion

 A. Renewed Motion to Dismiss Counts One and Two of the Redacted Second

 Superseding Indictment

 1. The Decision in Reves

 2. Statute of Limitations

 3. Charges of Frontrunning

 B. Objections to the First Set of Cayman Islands Depositions Testimony and Documents

 1. Bertoli's Objections to the First Set of Cayman Islands Depositions in Their Entirety

 2. Bertoli's Objections to Specific Testimony From the First Set of Cayman Islands Depositions

 a. Deposition of Coleman

 b. Deposition of Rodney Bond

 c. Deposition of Gillooly

 d. Deposition of Duggan

 e. Deposition of Sheree Ebanks

 f. Depositions of Chan-A-Sue and Bechard

 g. Deposition of Meyeroff

 3. government's Objections to Specific Testimony From the First Set of Cayman Islands Depositions

 a. Deposition of Coleman

 b. Deposition of Rodney Bond

 c. Deposition of Duggen

 d. Deposition of Lundie

 4. Bertoli's Objections to Documents From the First Set of Cayman Islands Depositions

 a. Documents of Greenshields

 b. Documents from the Coleman Deposition

 c. Documents of Euro Bank

 5. Government's Objections to Documents from the first Set of Cayman Islands Depositions

 C. Objections to the Second Set of Cayman Islands Depositions Testimony and Documents

 1. Bertoli's Objections to Specific Testimony From the Second Set of Cayman Islands Depositions--Deposition of Ebanks

 a. Deposition of Enbanks

 b. Deposition of Burgess

 c. Deposition of Rodney Bond

 D. Pre-Trial and Trial Motions and Objections by Bertoli

 1. Motion to Sequester Government Witnesses

 2. Motion to Suppress use of Cayman Islands Documents By the Government Pursuant to 18 U.S.C. § 3505

 3. Motion to Turn Over Personnel Files of Government Witnesses and Agents

 4. Motion to Suppress or, in the Alternative, to Obtain Letters of Request to Take the Testimony of Euro Bank Personnel Ebanks and Burgess

 5. Objection to Reading of Redacted Second Superseding Indictment to Jury

 6. Motion to Question Eisenberg Regarding Charges Pending Against Him

 When He Pleaded Guilty

 7. Motion for a Mistrial

 8. Objection to Admission of Cayman Islands Documents After Beginning of Trial

 9. Objections to the Government's Use of Summary Charts and Demonstrative Charts

 a. Summary Charts

 b. Demonstrative Charts

 c. Admission of Charts

 10. Objections to Evidence of Other Acts: Rule 4049(b)

 a. The 1977 Suit by Executive Securities Against Bertoli and Bertoli's Filing for Bankruptcy

 b. The SEC Investigation and the SEC Action

 c. The SEC's 1979 Bar of Bertoli from Association with Broker-Dealers

 d. Other 404(b) Evidence

 i. Unindicted Stock Manipulation Schemes

 ii. The Government's Chart Evidence

 iii. Berco Trust Financial Statements and Corporate Records

 iv. The Swiss Bank Documents

 11. Objection to Special Verdict Sheet

 12. Objection to Hard Copy of Jury Charges and Hard Copy of Trail Transcript Being Submitted to Deliberating Jury

 13. Objection to Submission of Jury Books to Jury

 14. Objection to Subsequent Charges to Jury

 E. Pre-Trial and Trail Motions and Objections by Government

 1. Motion to Preclude Bertoli From Presenting a Defense Based on Selective

 or Vindictive Prosecution or Governmental Misconduct

 2. Motion to Quash Bertoli's Subpoena of Government's Case Agent

 3. Motion to Preclude Bertoli From Presentin Any evidence That Charges Were Dismissed in This Case

 4. Motion to Preclude Bertoli From Introducing Evidence That Certain Government Witnesses Used Narcotics or Alcohol

 F. Post-Trail Proceedings

 1. Bertoli's Motions for a New Trial Based on allegations of Juror Misconduct During Trail

 a. Jury Misconduct as a Basis for Granting a New Trail

 b. Right of Defendants to Be Present During Court's Interview of Juror for Misconduct

 i. Fifth Amendment Right to be Present

 ii. Right to be Present Pursuant to Rule 43

 iii. Right to Have Counsel Present

 c. The Riepe Letter

 2. Bertoli's Motion for New Trial Based on Allegations of Juror Misconduct During Voir Dire

 a. Voir Dire

 b. The Lawsuit against Juror Six

 c. Motion for a New Trail Based on Answers to Jury Voir Dire

 3. Bertoli's Motion to Recuse Court from Sentencing

 a. Background

 b. 28 U.S.C. § 455(a)

 c. Bertoli's Plan to Force recusal

 d. Statements and Rulings of the Court

 4. Sentencing

 a. Facts

 i. Bertoli's Activities at Executive Securities

 ii. The Stock Manipulation Schemes

 iii. Obstruction of Justice

 b. Sentencing Computation

 i. Applicable Guidelines

 ii. Grouping the Offenses

 iii. Calculating the Offense Level

  Group One

  Sections 2J1.2 and 2X3.1

  Sections 2F1.1

  Sections 2J1.7 and 3B1.1

  Group Two

  Group Three

  The Total Offense Level

  iv. Criminal History Category

  v. Monetary Penalties

  Ability to Pay

  5. Bertoli's Motion for Bail Pending Appeal

  a. Background

  b. 18 U.S.C. § 3143(b)

  i. The Risk of Flight

  ii. Danger to the Community

  iii. Substantial Question of Law or Fact

  Conclusion

  Appendix A:* List of Pleadings and Related Documents

  Appendix B: Transcripts of Depositions and Proceedings in Cayman Islands

  Appendix C: Transcripts of Trail Testimony

  Appendix D: Objections to Specific Testimony From the First Set of Cayman Islands Depositions

  Appendix E: Objections to specific Testimony From the Second Set of Cayman Islands Depositions

   OPINION

  LECHNER, DISTRICT JUDGE

  This is a criminal action which originated on 16 June 1989 when an indictment (the "Indictment") was returned against defendants Richard O. Bertoli ("Bertoli"), Richard S. Cannistraro ("Cannistraro") and Leo M. Eisenberg ("Eisenberg"). *fn1" On 29 September 1989, a six count superseding indictment (the "Superseding Indictment") *fn2" was returned. On 21 January 1992, the Government returned an eight count second superseding indictment (the "Second Superseding Indictment") against Bertoli and Cannistraro (collectively the "Defendants"). *fn3" Eisenberg is not a defendant in the Second Superseding Indictment although he is listed as a co-conspirator. *fn4"

  Following a conviction on two counts of the Redacted Second Superseding Indictment, Bertoli filed numerous post-trial motions, including one for bail pending appeal of his conviction. In moving for bail pending appeal, Bertoli has raised several contentions of error and other issues regarding the trial and pre-trial proceedings. The following opinion addresses these issues and Bertoli's other post-trial motions and is intended to facilitate the appeal. *fn5"

  Facts

  The facts of this case have been set forth at length in other opinions, most recently in Cannistraro, 800 F. Supp. 30; see also United States v. Cannistraro, 799 F. Supp. 410 (D.N.J. 1992); United States v. Cannistraro, 794 F. Supp. 1313 (D.N.J. 1992); United States v. Eisenberg, 773 F. Supp. 662 (D.N.J. 1991); United States v. Eisenberg, 734 F. Supp. 1137 (D.N.J. 1990). *fn6"

  A. The Redacted Second Superseding Indictment

  Count One ("Count One") of the Redacted Second Superseding Indictment charged Bertoli and Cannistraro with racketeering activities in violation of the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1961, et seq. Count One described the pattern of racketeering engaged in by the Defendants and others, including Eisenberg, as consisting of predicate acts of mail fraud, wire fraud, interstate transportation of money taken by fraud, securities fraud and obstruction of justice. Count One, P 9.

  Specifically, the Redacted Second Superseding Indictment alleged Monarch Funding Corp. ("Monarch"), the enterprise, was a securities brokerage firm in New York City, New York, which was engaged in the business of underwriting, purchasing and selling securities primarily traded in the over-the-counter markets. Id., P 2. Count One alleged Bertoli was the former president of a brokerage firm *fn7" and controlled and had a beneficial interest in several nominee brokerage accounts *fn8" maintained at Monarch. Id., P 3. These nominee brokerage accounts included accounts in the names of Bertoli family members and various Cayman Islands individuals and entities. Id.

  Count One further alleged Cannistraro was a securities research analyst with Wood Gundy, Inc. ("Wood Gundy"), a brokerage firm located in New York City, New York. Id., P 4. It alleged Cannistraro controlled and had a beneficial interest in nominee brokerage accounts maintained at Monarch. Id. These nominee brokerage accounts included accounts in the names of Cannistraro relatives and various individuals and entities located in the Cayman Islands. Id.

  With regard to Eisenberg, Count One alleged Eisenberg was the owner and president of Monarch. Id., P 5. It alleged Eisenberg controlled and had a beneficial interest in nominee brokerage accounts maintained at Monarch, which included accounts in the names of various Cayman Islands individuals and entities. Id.

  Count One charged that, from about January 1982 to the present, in the District of New Jersey and elsewhere, Bertoli, Cannistraro and Eisenberg participated in the affairs of Monarch through a pattern of racketeering activity, the object of which was to "use Monarch as a vehicle to engage in fraudulent securities trading practices and thereby obtain money and other things of value for the [D]efendants . . . [and] Eisenberg." Id., PP 7-8. It identified the victims of the racketeering activity as the purchasers and sellers of securities recommended and traded by the Defendants and Eisenberg. Id., P 8. It alleged the means and methods used by the Defendants to conduct conspiracy included "attempts to conceal and cover-up their fraudulent activities." Id., P 9.

  Count One charged the Defendants with engaging in racketeering activity through the execution of four separate fraudulent trading or concealment schemes involving the following three securities: Liquidation Control, Inc. ("LCI"), Toxic Waste Containment, Inc. ("Toxic Waste") and High Technology Capital Corp. ("High Tech"). *fn9" Id.

  With respect to the scheme involving LCI securities (the "LCI Scheme"), Count One charged that, between approximately October 1982 and November 1983, the Defendants and others, including Eisenberg, devised a scheme to defraud and obtain money "by means of false and fraudulent pretenses, representations, and promises" with respect to LCI *fn10" securities. Id., P 11. Count One described the LCI Scheme as one in which the Defendants and Eisenberg rigged and manipulated the market in order to raise and control the price of LCI securities and to create a greater demand for the same. Id., PP 12-13.

  Count One charged Bertoli with causing Monarch to underwrite the initial public offering ("IPO") *fn11" of LCI securities (the "LCI IPO"). Id., P 14. It alleged Bertoli arranged for the LCI IPO to be sold in units; a unit consisted of one share of common stock and two warrants. Id., P 15. It alleged the Defendants and others, including Eisenberg, caused "virtually all of the securities in the LCI IPO to be sold to individuals and entities who were controlled by them, or who were under the control of individuals who had understandings with them concerning the manner in which these securities would be traded." Id., P 16. It alleged that, as a result, the Defendants and Eisenberg controlled the LCI securities traded in the market and enhanced their own ability to fraudulently manipulate the price of the LCI securities. Id.

  Count One alleged that, during the LCI IPO and the first few days of aftermarket trading, the Defendants and Eisenberg purchased substantial amounts of LCI securities at minimal cost through nominee brokerage accounts, such as the brokerage account for Euro Bank Corp. ("Euro Bank") *fn12" at Monarch. Id., P 17. It further alleged Defendants and Eisenberg controlled pricing by, prior to the close of the LCI IPO, making arrangements with brokers and traders for the LCI securities to be traded according to the directions of Defendants and Eisenberg. It alleged these individuals bought and sold LCI securities at times and prices determined by the Defendants and Eisenberg, rather than by market forces. Id., P 18.

  Count One alleged Defendants and Eisenberg bribed portfolio managers and research analysts of the M&I Growth Fund (the "M&I Fund") *fn13" and Aggressive Growth Shares, Inc. (the "Bullock Fund"). *fn14" It alleged the Defendants and Eisenberg opened nominee brokerage accounts at Monarch for the benefit of the M&I Fund and Bullock Fund managers and research analysts. These accounts were used to generate large sums of money through fraudulent trading of LCI securities. Id., P 19. The managers in turn bought large blocks of LCI securities for their respective funds. The research analysts caused Halswell Corp. ("Halswell") *fn15" to open an account at Monarch. Id.

  Count One alleged Cannistraro wrote a research report to be circulated prior to the close of the LCI IPO which recommended the purchase of LCI securities (the "LCI Report"). Id., P 20. It alleged the Defendants caused a broker from G.K. Scott & Co., a securities brokerage firm, ("G.K. Scott") to claim authorship of and publish the LCI Report on G.K. Scott letterhead because Cannistraro was an officer and director and the largest shareholder of LCI. Id. It further alleged that, as part of the LCI Scheme, the Defendants and Eisenberg caused the LCI Report to be disseminated without disclosing that Cannistraro had actually authored it, or disclosing that the Defendants and Eisenberg were engaged in a scheme to manipulate the market and that the LCI Report was part of the scheme. Id., P 21.

  Count One alleged that, during the first five days of aftermarket trading, the Defendants and Eisenberg caused the price of LCI securities to rise from the IPO unit price of twenty-five cents to $ 1.25 and that, by the end of February 1983, they caused the price to rise to $ 1.625 per share. Id., P 22. It alleged the Defendants and Eisenberg sold their LCI securities "without disclosing this fraudulent trading scheme" and "fraudulently obtained profits totalling at least $ 462,000." Id., P 23. Count One identified, by date and content, four instances of mail fraud, five instances of wire fraud and one instance of securities fraud in violation of Section 10(b) ("Section 10(b)") of the Securities Exchange Act of 1934 (the "Securities Exchange Act"), 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5 ("Rule 10b-5"), all perpetrated by the Defendants and others, including Eisenberg, in executing the LCI Scheme. Id., PP 24-26.

  Count One further charged that, between approximately December 1982 and October 1983, the Defendants and others, including Eisenberg, engaged in a scheme concerning Toxic Waste *fn16" securities (the "Toxic Waste Scheme"). Id., PP 27-28. Count One described the Toxic Waste Scheme as one in which the Defendants and Eisenberg rigged and manipulated the market in order to raise and to control the price of Toxic Waste securities and to create a greater demand for the same, in order to ensure they could sell their Toxic Waste securities at a substantial profit. Id., PP 28-29.

  Count One alleged Bertoli caused Monarch to underwrite the IPO of Toxic Waste securities (the "Toxic Waste IPO"). Id., P 30. It alleged Bertoli caused the securities in the Toxic Waste IPO to be sold in units, each consisting of one share of common stock and two warrants. Id., P 31. It alleged the Defendants and others, including Eisenberg, caused "the securities in the Toxic Waste IPO to be sold to individuals and entities who were controlled by them, or who were under the control of individuals who had understandings with them concerning the manner in which these securities would be traded." Id., P 32. It alleged that, as a result, the Defendants and Eisenberg controlled the Toxic Waste securities being traded in the market and enhanced their ability to fraudulently manipulate the price of the Toxic Waste securities. Id.

  Count One alleged that, during the Toxic Waste IPO and first days of aftermarket trading, the Defendants and Eisenberg purchased substantial amounts of Toxic Waste securities at minimal cost through nominee brokerage accounts in the names of Parsico Ltd. ("Parsico") *fn17" and Venture Partners "A" ("Venture Partners") *fn18" maintained at Monarch. Id., 33. It further alleged Defendants and Eisenberg controlled pricing by, prior to the close of the Toxic Waste IPO, making arrangements with brokers and traders for the Toxic Waste securities to be traded according to the directions of Defendants and Eisenberg. It alleged these individuals bought and sold Toxic Waste securities at times and prices determined by the Defendants and Eisenberg, rather than by the market forces. Id., P 34.

  Count One alleged that, in furtherance of the Toxic Waste Scheme, Defendants and Eisenberg opened nominee brokerage accounts at Monarch for the benefit of the managers and research analysts of the M&I Fund and the Bullock Fund. Id., P 35. It alleged the Defendants and Eisenberg bribed the managers of the M&I Fund and Bullock Fund to buy large blocks of Toxic Waste securities for their respective funds. Research analysts at the M&I Fund and Bullock Fund caused the Halswell brokerage account at Monarch to purchase large blocks of Toxic Waste securities. Id.

  Count One alleged that, as part of the fraudulent scheme to inflate the price of Toxic Waste securities, Cannistraro wrote four research reports (the "Toxic Waste Reports") to be circulated prior to the close of the Toxic Waste IPO. These reports recommended the purchase of the Toxic Waste securities. Id., P 36. Count One alleged Cannistraro caused Wood Gundy to disseminate the Toxic Waste Reports to the investing public. Id. It alleged the Defendants and Eisenberg caused the Toxic Waste Reports to be disseminated without disclosing that the Defendants and Eisenberg were engaged in a scheme to manipulate the market and that the reports were part of the scheme. Id., P 37. Count One alleged that, as part of the Toxic Waste Scheme, in or about March or April 1983, Bertoli and Eisenberg caused Monarch to disseminate to brokers, research analysts, securities newsletters and Monarch customers eighteen thousand copies of one of the Toxic Waste Reports. Id., P 38.

  Count One alleged that, in or about March or April 1983, Cannistraro caused to be prepared and disseminated to the investing public articles in the "Portfolio Letter," dated 14 March 1983, and the securities investment newsletter "Ground Floor," dated 22 April 1983. Id., P 39. It alleged these articles discussed the Toxic Waste Reports and continued to recommend the purchase of Toxic Waste securities without disclosing the existence of the Toxic Waste Scheme. Id.

  Count One alleged that, during the first three days of aftermarket trading, the Defendants and Eisenberg caused the price of Toxic Waste securities to rise from the IPO unit price of twenty-five cents to $ 1.25 per share of common stock and that, between 10 March 1983 and mid-June 1983, they caused the price to rise further to $ 4.50 per share. Id., P 40. Count One alleged the Defendants and Eisenberg sold their Toxic Waste securities "without disclosing this fraudulent trading scheme" and "fraudulently obtained profits totalling at least $ 4,240,000." Id., P 41. It identified, by date and content, eight instances of mail fraud, two instances of wire fraud, one instance of interstate transportation of money taken by fraud in violation of 18 U.S.C. § 2314 and one instance of securities fraud in violation of Section 10(b) and Rule 10b-5, all perpetrated by the Defendants and others, including Eisenberg, in executing the Toxic Waste Scheme. Id., PP 42-45.

  Count One further charged that, from approximately March 1983 to November 1984, in the District of New Jersey and elsewhere, the Defendants executed a scheme to conceal the identities of the promoter and beneficial owners of High Tech (the "Beneficial Owners Concealment Scheme"). *fn19" Id., 46. It alleged that, in about March 1983, Bertoli became the promoter of High Tech, whereby he founded High Tech, appointed its officers, board of directors and advisory board, allocated the distribution of its securities and arranged for the IPO of its securities (the "High Tech IPO"), which IPO was underwritten by Monarch. Id., P 47.

  Count One further alleged that, in March 1983, prior to the High Tech IPO, the Defendants and Eisenberg caused 3,100,000 shares of High Tech restricted common stock to be placed in the names of nominees while the shares were beneficially owned by the Defendants and Eisenberg. Id., P 48. It alleged the Defendants and Eisenberg did not disclose in High Tech's registration statements and prospectus the role of Bertoli as High Tech's promoter and the Defendants' and Eisenberg's beneficial ownership of more than ten percent of High Tech's common stock and of more than ten percent of High Tech's outstanding stock. Id., P 49.

  Count One alleged that, having concealed such information, the Defendants raised $ 425,000 in capital for High Tech from the investing public and were able to direct the management and policies of High Tech to the benefit of the Defendants. Id., P 50. In addition, it alleged that, from approximately February 1984 to July 1984, the Defendants caused 3,100,000 shares of High Tech common stock beneficially owned by them to be sold for a profit of at least $ 115,000. Id., P 51. It identified, by date and content, three instances of mail fraud, two instances of wire fraud and two instances of securities fraud in violation of section 17 of the Securities Exchange Act, 15 U.S.C. § 77g, and sections 24, 10 and Schedule A(4) and (6) of the Securities Act of 1933 (the "Securities Act"), 15 U.S.C. §§ 77x, 77j(a)(1) and 77aa(4) and (6), all perpetrated by the Defendants and others, including Eisenberg, in executing the Beneficial Owners Concealment Scheme. Id., §§ 52-55.

  Count One further charged that the Defendants and others, including Eisenberg, engaged in a scheme concerning High Tech securities from about March 1983 to about February 1984, in the District of New Jersey and elsewhere (the "High Tech Scheme"). Id., P 56. Count One described the High Tech Scheme as one in which the Defendants and Eisenberg rigged and manipulated the market in order to raise the price of, control the price of and create a greater demand for High Tech securities, in order to ensure they could sell their High Tech securities at a substantial profit. Id., PP 57-58.

  Count One alleged Bertoli caused Monarch to underwrite the IPO of High Tech securities. Id., P 59. It alleged Bertoli caused the securities in the High Tech IPO to be sold in units, consisting of one share of common stock and two warrants. Id., P 60. It alleged the Defendants and others, including Eisenberg, caused "the securities in the High Tech IPO to be sold to individuals and entities who were controlled by them, or who were under the control of individuals who had understandings with them concerning the manner in which these securities would be traded." Id., P 61. It charged that, as a result, the Defendants and Eisenberg controlled the High Tech securities being traded in the market and enhanced their ability to fraudulently manipulate the price of the High Tech securities. Id.

  Count One alleged that, during the High Tech IPO and first few days of aftermarket trading, the Defendants and Eisenberg purchased substantial amounts of High Tech securities at minimal cost through nominee brokerage accounts maintained at Monarch in the names of Parsico, Venture Partners, VPI Ltd. ("VPI") *fn20" and Roger Rowland ("Rowland"). *fn21" Id., P 62. It further alleged Defendants and Eisenberg controlled pricing by, prior to the close of the High Tech IPO, making arrangements with brokers and traders for the High Tech securities to be traded according to the directions of Defendants and Eisenberg. It alleged this trading procedure allowed High Tech securities to be bought and sold at times and prices determined by the Defendants and Eisenberg, rather than by market forces. Id., P 63. It charged that, as part of the High Tech Scheme, the Defendants and Eisenberg bribed a research analyst (the "Research Analyst") in an attempt to cause the buying of large blocks of High Tech securities. Id., P 64.

  Count One alleged the Defendants and Eisenberg allocated securities in the High Tech IPO to the Research Analyst's nominee brokerage account at Monarch. Id. In exchange for such allocation, and in exchange for money which the Defendants and Eisenberg provided to the Research Analyst "through the trading of LCI and Toxic Waste securities in his nominee accounts at Monarch, the Research Analyst caused the Halswell brokerage account at Monarch to purchase a large block of High Tech securities." Id.

  Count One alleged that, as part of the fraudulent scheme to inflate the price of High Tech securities, Cannistraro recommended the purchase of High Tech securities to various brokers at Wood Gundy, without disclosing that the Defendants and Eisenberg were engaged in a scheme to manipulate the market and that the recommendation was part of the scheme. Id., P 65. It alleged the Defendants and Eisenberg caused the price of High Tech securities to rise in the first six days of aftermarket trading from the IPO price of $ .50 to $ 2.25 per share of common stock; between 15 June and mid-October 1983 the price further increased to $ 3.25 per common share. Id., P 66.

  Count One charged that, from about June 1983 to about February 1984, the Defendants sold their High Tech securities to the investing public, without disclosing the existence of the fraudulent trading scheme, for a profit of at least $ 1,720,000. Id., P 67. It identified, by date and content, six instances of mail fraud and one instance of securities fraud in violation of Section 10(b) and Rule 10b-5, all perpetrated by the Defendants and others, including Eisenberg, in executing the High Tech Scheme. Id., PP 68-69.

   Finally, Count One charged the Defendants obstructed justice to conceal their wrongdoing (the "Cover-Up Scheme"). Count One alleged a subpoena by a grand jury empaneled in the District of New Jersey *fn22" was served on one of Cannistraro's nominees on or about 24 January 1986, requiring the nominee to produce documents and to testify before the grand jury. Id., P 71. It alleged Cannistraro instructed and directed this nominee, in return for cash payments, to conceal Cannistraro's beneficial ownership in the nominee's Monarch account. Id., P 72.

  Count One charged Bertoli engaged in conduct to obstruct justice and to cover up the fraudulent trading schemes by shredding and destroying documents in the Cayman Islands in June and November 1987, by removing documents and hiding the proceeds from the racketeering activities and by submitting false and fraudulent affidavits to the court. Id., P 73.

  Count Two of the Redacted Second Superseding Indictment ("Count Two") charged the Defendants with conspiracy to violate section 1962(c) of RICO, 18 U.S.C. § 1962(c), by agreeing with others, including Eisenberg, to conduct the affairs of Monarch through a pattern of racketeering. Count Two, P 2. It charged the conspiracy existed from about January 1982 to at least January 1989, in the District of New Jersey and elsewhere. Id. It alleged the pattern of racketeering consisted of the racketeering acts (the "Racketeering Acts") charged in Count One of the Redacted Second Superseding Indictment. Id.

  Count Three of the Redacted Second Superseding Indictment ("Count Three") charged Bertoli with conspiracy to obstruct justice, in violation of 18 U.S.C. § 371, in connection with (1) an investigation, beginning in July 1983, by the SEC of allegedly fraudulent and manipulative trading at LCI and Toxic Waste (the "SEC Investigation"), (2) a civil action brought in 1985 by the SEC against the Defendants, Eisenberg and Steven Cloyes ("Cloyes"), a securities broker at Monarch (the "SEC Action"), (3) the 1985-86 Grand Jury Investigations, (4) the prosecution of Cannistraro in 1987 (the "1987 Cannistraro Prosecution") and (5) this action. Count Three, P 14. It charged the conspiracy began as early as March 1983 and continued through the date of trial. Id.

  Count Three described the object of the conspiracy as being "to cover-up, conceal, and eventually avoid civil and criminal liability for, the illegal racketeering activities of . . . Bertoli, . . . Cannistraro and . . . Eisenberg, and to prevent evidence of their . . . beneficial ownership of money and accounts in the Cayman Islands, from being considered and used" in the civil and criminal actions against them. Id., P 15. It alleged the conspiracy was achieved by causing brokers or nominees to lie to or to conceal evidence from investigators and the grand jury. Id., PP 16-28. As a result, Cayman Islands banks did not produce documents requested pursuant to an informal agreement between the United States Department of Justice and the Cayman Islands authorities. Moreover, Defendants concealed documents at Monarch that were subpoenaed by the grand jury, destroyed documents relating to the nominee accounts at Euro Bank, filed a false financial disclosure form with the United States Probation Office, transferred funds in the Cayman Islands and submitted false affidavits during the course of this prosecution. Id.

  Count Three listed thirty-three overt acts committed by the Defendants and Eisenberg in furtherance of this conspiracy between March 1983 and the return of the Second Superseding Indictment. Although these overt acts are too numerous to set forth in full in this opinion, they included several meetings and telephone calls between the Defendants and other parties and several false and misleading statements by the Defendants and other parties. *fn23"

   Count Four of the Redacted Second Superseding Indictment ("Count Four") charged Bertoli with obstruction of justice in violation of 18 U.S.C. §§ 1502 and 1503. Count Four, P 4. It alleged that, in or about June 1987, Bertoli and Eisenberg, after a grand jury returned the indictment in the 1987 Cannistraro Prosecution (the "1987 Cannistraro Indictment"), shredded and destroyed documents from the Cayman Islands which were relevant to the investigations of a separate grand jury, empaneled on 30 January 1986. Id., PP 2-4.

  Count Five of the Redacted Second Superseding Indictment ("Count Five") also charged Bertoli with obstruction of justice in violation of 18 U.S.C. §§ 1502 and 1503. Count Five, P 3. It alleged that, in or about November 1987, Bertoli shredded and destroyed documents in the Cayman Islands that were relevant to the investigations of a grand jury empaneled on 17 March 1987. Id., PP 2-3.

  Count Six of the Redacted Second Superseding Indictment ("Count Six") charged Bertoli with obstruction of justice in violation of 18 U.S.C. §§ 1502 and 1503. Count Six, P 2. Count Six alleged that, in or about April 1990, in the District of New Jersey and elsewhere, Bertoli and others, including Eisenberg, "caused the racketeering proceeds and documents relating to those racketeering proceeds to be transferred from the custody and control of [a Paget-Brown & Co. ("Paget Brown")] *fn24" employee and then caused the racketeering proceeds to be moved from the Cayman Islands to the Principality of Andorra in Europe." Id.

  Count Seven of the Redacted Second Superseding Indictment ("Count Seven") charged Bertoli with obstruction of justice in violation of 18 U.S.C. §§ 1502 and 1503. Count Seven, P 5. It alleged that, on or about 6 December 1991 Bertoli "submitted three purported "Affidavits in Contemplation of Death" by Jack Isaacson *fn25" (the "Isaacson Affidavits"), *fn26" which stated, inter alia, that Isaacson and another individual were the sole beneficial owners of the Cayman Islands bank and brokerage accounts . . . relevant to the present RICO prosecution." Id., PP 2-3 (footnotes added). Count Seven alleged the Isaacson Affidavits were false and fraudulent and Bertoli was aware of this. Id., P 4. It further alleged Bertoli was aware the Isaacson Affidavits "had been prepared for the use of . . . Bertoli and others, including . . . Cannistraro and . . . Eisenberg, in attempting to fraudulently exculpate themselves . . ." Id.

  B. History of the Cayman Islands Depositions

  On 6 November 1989, the Government filed a motion, pursuant to Fed. R. Crim. P. 15, for depositions in the Cayman Islands (the "First Set of Cayman Islands Depositions") and for the issuance of a request for foreign judicial assistance (the "Cayman Islands Discovery Motion"). *fn27" First Cayman Discovery Opinion at 7. Defendants opposed the motion. Id. at 6-9.

  On 11 December 1989, Bertoli applied ex parte to the Grand Court of the Cayman Islands (the "Cayman Grand Court") for an injunction (the "Cayman Islands Ex Parte Injunction") prohibiting the Government from applying to the Cayman Islands for the discovery described in the Cayman Islands Discovery Motion. *fn28" The Cayman Islands Ex Parte Injunction was granted on 4 January 1990. Id. at 8.

  On 4 April 1990, the Government filed a treaty request (the "MLA Treaty Request") with the Cayman Grand Court seeking evidence located in the Cayman Islands pursuant to the Treaty Between the United States and the United Kingdom of Great Britain and Northern Ireland Concerning the Cayman Islands and Relating to Mutual Legal Assistance in Criminal Matters (the "MLA Treaty"), S. Treaty Doc. No. 100-8, 100th Cong., 1st Sess. (1990). First Cayman Discovery Opinion at 3. Also on 4 April 1990, the Government filed an amended Rule 15 motion (the "Amended Cayman Islands Discovery Motion"), retaining its request to take Cayman Islands depositions but withdrawing its motion for the issuance of a request for foreign judicial assistance and advising it was proceeding under the MLA Treaty. First Cayman Discovery Opinion at 8-9.

  On 24 April 1990, an order was issued allowing the Government to take foreign depositions and to obtain documents in the Cayman Islands. See Order, filed 24 April 1990 (the "24 April 1990 Cayman Discovery Order"). Significantly, the 24 April 1990 Cayman Discovery Order stated:

  

IT FURTHER APPEARING that, for the purposes of Rule 15 only, the Defendants do not contest that the deposition testimony and documents sought in the Cayman Islands are relevant and material to the trial of this matter; and

  

IT FURTHER APPEARING that, for purposes of Rule 15 only, Defendants do not contest that due to the exceptional circumstances of this case, it is in the interest of justice that the request of the United States for leave to take foreign depositions for use at trial of this matter pursuant to an [MLA] Treaty Request be granted; and

  

IT FURTHER APPEARING that Defendants consent to the issuance of this Order, and that such consent has been given, in part, in reliance upon the [MLA] Treaty Request of 4 April 1990; and

  

IT FURTHER APPEARING that the consent of Defendants to the granting of this Order shall not act as a waiver of any right of Defendants to contest either the right of the United States to have proceeded under the [MLA] Treaty or the constitutionality of that Treaty; nor shall this consent be construed as consent of Defendants that the United States is entitled to any depositions or documents pursuant to the [MLA] Treaty Request of April 4, 1990;

  

IT IS FURTHER ORDERED that Defendants' consent to entry of this Order shall preclude [their] objection based on Rule 15 to the use or admissibility at trial of any evidence obtained hereunder, 29 but [their] consent shall not operate as a waiver of any other rights Defendants may have to object to the admissibility of any such evidence at trial on any other ground.

  24 April 1990 Cayman Discovery Order at 2-3c.

  On 10 July 1990, the Defendants commenced a separate civil action (the "Cayman Civil Action") in the Cayman Grand Court, seeking to enjoin the Government from pursuing the MLA Treaty Request. See Letter Opinion, filed 9 January 1992 (the "Second Cayman Discovery Opinion"), at 5. On the same day, the Cayman Grand Court filed an order dismissing the Cayman Civil Action (the "10 July 1990 Cayman Order"). Id. at 6.

  On 28 November 1990, the Cayman Islands Court of Appeals (the "Cayman Appeals Court') affirmed the 10 July 1990 Cayman Order. Id. The Defendants then sought leave to appeal the Cayman Appeals Court's affirmance to the Privy Council for the United Kingdom (the "Privy Council"). *fn30" Id. On 5 December 1990, the Cayman Appeals Court granted the Defendants leave to appeal and stayed processing of the MLA Treaty Request pending appeal to the Privy Council. Id. On 22 April 1991, the Privy Council affirmed the order of the Cayman Appeals Court. Id. Accordingly, this case was delayed approximately one year from the issuance of the Cayman Islands Ex Parte Injunction to the decision of the Privy Council.

  The Cayman Central Authority (the "Cayman Authority") scheduled document production in the Cayman Islands for the period 13 May 1991 through 21 May 1991, with the First Set of Cayman Islands Depositions to commence thereafter. Id. Subsequently, the Government and the Defendants agreed to postpone document production until 15 July 1991 and to postpone the First Set of Cayman Islands Depositions until 4 September 1991. Id.

  On 4 September 1991, the First Set of Cayman Islands Depositions commenced in the Cayman Islands before presiding Judge Sir Denis Malone ("Judge Malone"). *fn31" Attending the First Set of Cayman Islands Depositions were the Government and Bertoli. Neither Cannistraro nor his then-counsel were present *fn32" at the First Set of Cayman Islands Depositions. The First Set of Cayman Island Depositions concluded on 16 September 1991.

  At a hearing at the start of the First Set of Cayman Islands Depositions (the "MLA Treaty Hearing"), Judge Malone explained the procedure for the depositions. He stated Cayman law, rather than United States law, would be the background law, but it would not be rigidly applied. 4 September Proceedings Tr. at 16. Judge Malone also explained the "records in the proceedings will be those requested by the United States authorities." Id. at 17. He stated the proceedings must be kept within the parameters of the MLA Treaty and that collateral issues should not be pursued widely. Id. at 33.

  With respect to cross-examination, he stated: "Questions which affect the credibility of a witness by attacking his character, but are not otherwise relevant to the actual inquiry, ought not to be asked unless there are reasonable grounds for thinking that the implication conveyed by the question is well-founded or true." Id. Judge Malone explained issues of admissibility were matters for the trial judge in the United States. Id. at 34. He reminded the parties that Article Seven of the MLA Treaty limits the use of information obtained through the MLA Treaty. Id.

  During the course of the First Set of Cayman Islands Depositions, the Judge Malone explained Bertoli would not be permitted to voir dire the witnesses with respect to documents introduced by records custodians. *fn33" See Duggan Dep. Tr. at 21-23. Nevertheless, during the First Set of Cayman Islands Depositions, Bertoli cross-examined all of the witnesses and recrossed document witness Bechard. *fn34" At the close of the First Set of Cayman Islands Depositions, Bertoli objected to the fact that the Government did not call four witnesses it had subpoenaed for depositions. 17 Sept. 1991 Proceedings Tr. at 6-7. Judge Malone explained he could not require the Government to call witnesses. Id. at 7.

  As a result of the First Set of Cayman Islands Depositions, the Government discovered the existence of additional relevant documents in the Cayman Islands. See Second Cayman Discovery Opinion at 8. In a letter, dated 20 September 1991 (the "20 September 1991 Letter"), the Government informed the court of its intention to obtain these additional documents through a supplemental request under the MLA Treaty (the "Supplemental Treaty Request"). Id. In addition, the 20 September 1991 Letter indicated the Government's intention to introduce, under 18 U.S.C. § 3505, any documents obtained through the Supplemental Treaty Request. Id. On 25 October 1991, the Government submitted the Supplemental Treaty Request to the Cayman Grand Court seeking production of corporate documents. *fn35"

  On 31 October 1991, Bertoli responded by letter to the Supplemental Treaty Request. Letter to court, dated 31 October 1991 (the "31 October 1991 Letter"); Second Cayman Discovery Opinion at 8. The 31 October 1991 Letter objected to the Supplemental Treaty Request on the ground that it was not authorized under Rule 15 and because Bertoli had allegedly withdrawn his consent to the 24 April 1990 Cayman Discovery Order. See Second Cayman Discovery Opinion at 8-9. On 4 November 1991, and again on 7 November 1991, Bertoli requested leave to file a motion to enjoin the Supplemental Treaty Request. Id. at 9. On 15 November 1991, a scheduling conference was held at which filing dates were set for the then-proposed motion to enjoin the Supplemental Treaty Request. Id. This motion was denied on 9 January 1992. Id. at 15.

  In addition, following the First Set of Cayman Islands Depositions, Bertoli moved in this court for leave to depose three witnesses in the Cayman Islands, all of whom had previously been subpoenaed but not called by the Government. Notice of Motion, filed 12 November 1991. On 19 December 1991, Bertoli was given leave to depose George Ebanks ("Ebanks"), deputy managing director of Euro Bank, Joan Bond, assistant secretary of Euro Bank, and Patrick Holmes ("Holmes"), an officer at the Guardian Bank and Trust (Cayman) Limited (collectively, the "Second Set of Cayman Islands Depositions"). Letter Opinion and Order, filed 19 December 1991. In February 1992, a Letter Rogatory was submitted to the Cayman Authority (the "Letter Rogatory") requesting that the Second Set of Cayman Islands Depositions be conducted.

  As mentioned, in January 1992, the Second Superseding Indictment was returned, adding obstruction of justice charges which alleged Bertoli had shredded documents in the Cayman Islands, caused fraudulent affidavits concerning the Cayman Islands to be filed with the court and caused racketeering proceeds to be transferred from the Cayman Islands to the principality of Andorra. See supra, at 24-27. Subsequent to the return of the Second Superseding Indictment, the Defendants filed their second set of pre-trial motions seeking, inter alia, to exclude the First Set of Cayman Islands Depositions from evidence at trial on several grounds. *fn36" See Cannistraro, 800 F. Supp. at 65-72.

  Bertoli argued that, as a result of the changes in the Second Superseding Indictment, the depositions of Coleman and Rodney Bond were inadmissible because he did not have the requisite similarity of motive for cross examination required by Fed. R. Evid. 804(b)(1). Cannistraro, 800 F. Supp. at 65. Moreover, Bertoli sought to exclude the Coleman and Rodney Bond depositions because he was not permitted to re-cross examine those witnesses. Id. Cannistraro argued the First Set of Cayman Islands Depositions were inadmissible because his right to confrontation had been violated as a result of the court's refusal to order the Government to pay the travel expenses of his counsel and because he did not participate in the First Set of Cayman Islands Depositions. Id.

  Following a hearing held on 19 June 1992, the motion to preclude the First Set of Cayman Island Depositions was denied. However, because Bertoli had already been given leave to file the Letter Rogatory and to take a Second Set of Cayman Islands Depositions, Bertoli was granted permission to amend the Letter Rogatory to depose Burgess and to re-cross Coleman and Rodney Bond. See id. at 68-70; see also Transcript of Proceedings of 19 June 1992 (the "19 June 1992 Tr.") at 16-20.

  Although Cannistraro's argument regarding violation of his right to confrontation was rejected, Cannistraro was directed to identify which of the witnesses previously deposed by the Government he wanted to depose. Cannistraro was so directed because Bertoli had already been given leave to take the Second Set of Cayman Islands Depositions. Cannistraro, 800 F. Supp. at 70-72; see also 19 June 1992 Tr. at 19-20. After a delay of a month on the part of Cannistraro, *fn37" Cannistraro indicated he wished to depose all of the previously-deposed Cayman Islands witnesses. *fn38" See Letter from Cannistraro to court, dated 16 July 1992, at 2. Cannistraro was given the opportunity to depose those witnesses as part of the Second Set of Cayman Island Depositions. Cannistraro, 800 F. Supp. at 72.

  Following repeated objections by Bertoli to the Government's proposed Supplemental Letter of Request to Cayman Islands (the "Supplemental Letter Request"), a hearing was held on 10 September 1992 to finalize the language of the Supplemental Letter Request. *fn39" See 10 Sept. 1992 Tr. at 4-16, 23-32. On 30 September 1992, the Supplemental Letter Request *fn40" was executed and an order was signed granting the Defendants leave to depose the Cayman Islands witnesses. See Supplemental Letter Request; Order, filed 30 September 1992.

  The Second Set of Cayman Islands Depositions were originally scheduled to commence on 3 November 1992. See Order, filed 17 March 1993 (the "17 March 1993 Order") at 2; see also Letter from Government, dated 6 October 1992 (the "6 Oct. 1992 Letter"). Nevertheless, the Second Set of Cayman Islands Depositions were postponed until 30 November 1992 because Defendants failed to obtain local Cayman Islands counsel, as required by the Cayman Grand Court, for the purpose of arranging for the Second Set of Cayman Islands Depositions. 17 March 1993 Order at 2. Defendants' failure to obtain local Cayman Islands counsel occured despite their having received notice on five occasions that local Cayman Islands counsel was required. See 10 Sept. 1992 Tr. at 32; Letter from Government, dated 16 September 1992; Letter from Government, dated 30 September 1992; 6 Oct. 1992 Letter; Letter from court, dated 8 October 1992.

  On 15 October 1992, the Government moved to limit the scope and time of the examinations by Bertoli and by Cannistraro during the Second Set of Cayman Islands Depositions. See Notice of Motion, filed 15 October 1992. Following a hearing held on 27 October 1992, the Government's motion to limit the examinations by Bertoli and Cannistraro was granted. *fn41" See 27 Oct. 1992 Order; see also Transcript of Proceedings of 27 October 1992, 30-43 ("27 Oct. 1992 Tr.").

  On 27 October 1992, Bertoli informed the court that he had procured local Cayman Islands counsel. See 27 Oct. 1992 Tr. at 28. Nevertheless, despite numerous attempts by this court to expedite the taking of the Second Set of Cayman Islands Depositions, *fn42" the conduct of the Defendants continued to delay the taking of the Depositions. See 5 Nov. 1992 Tr.; 12 Nov. 1992 Tr. at 6-15. For instance, at no point prior to his pleading guilty in March 1993 did Cannistraro obtain local Cayman Islands counsel. See 5 Nov. 1992 Tr. at 2-10; Transcript of Proceedings of 12 March 1993 (the "12 March 1993 Tr.") at 4-6.

  On 8 December 1992, Bertoli filed a summons (the "Originating Summons") in the Cayman Islands, naming the Government and Cannistraro as defendants (the "Second Cayman Action"). See Letter from Government, dated 8 February 1993. The Originating Summons sought, inter alia, a determination on the allocation of costs with regard to the Second Set of Cayman Islands Depositions. See Originating Summons. Bertoli insisted that the Originating Summons was the proper way to effect taking of the Second Set of Cayman Islands Depositions. See Letter from Bertoli, dated 8 February 1993; Letter from Bertoli, dated 1 January 1993. Bertoli so stated despite the fact that the Solicitor General of the Cayman Islands (the "Cayman Solicitor General") had indicated that (1) the Second Cayman Action was "misconceived," (2) the Cayman Grand Court had no jurisdiction to hear the Second Cayman Action and (3) the proper method was for the Defendants to proceed, through local Cayman counsel, to process the Supplemental Letter Request. See Letter for Cayman Solicitor General, dated 27 January 1993; Letter from Cayman Solicitor General, dated 16 February 1993; See also 12 Jan. 1993 Tr. at 15-22.

  The Second Set of Cayman Islands Depositions was next scheduled for 29 March 1993. See 12 Jan. 1993 Tr. at 15-16. On 22 February 1993, the Government and the Defendants were ordered to show cause why trial should not commence on 3 May 1993. See Order to Show Cause, filed 22 February 1993, at 2. In the meantime, the Government moved to revoke permission given to the Defendants to take the Second Set of Cayman Islands Depositions or, in the alternative, to set a deadline by which the depositions were to occur. See Government Cayman Brief at 16-60, 64-67.

  After extensive written submissions from the parties, and a hearing on 12 March 1993 (the "12 March 1993 Hearing"), it was ordered that (1) the Second Set of Cayman Island Depositions were to be completed by 16 April 1993, *fn43" (2) a hearing pursuant to Fed. R. Evid. 104 (the "Rule 104 Hearing") would commence on 26 April 1993 and (3) a final pre-trial conference would be held and, immediately thereafter, trial would commence on 3 May 1993. 17 March 1993 Order at 3-7; see also 12 March 1993 Tr. at 27.

  During the 12 March 1993 Hearing, Bertoli indicated he would drop the Second Cayman Action and have local Cayman counsel process the Supplemental Letter Request on his behalf. 12 March 1993 Tr. at 7. Nevertheless, Bertoli contended it would be "physically impossible" to complete the Second Set of Cayman Islands Depositions by 16 April 1993. Id. at 28. On 15 March 1993, Bertoli moved for reconsideration of the 16 April 1993 deadline. See Letter Brief, dated 15 March 1993. Bertoli represented that he only intended to depose Ebanks, Burgess, Coleman and Rodney Bond and that he had already made application to the Grand Court to commence taking the Second Set of Cayman Islands Depositions. Id. Accordingly, the 17 March 1993 Order was modified to permit the Second Set of Cayman Island Depositions to continue beyond 16 April 1993, provided the deposition commenced on that date and proceeded uninterrupted until complete. See Order, filed 26 March 1993.

  Finally, on 15 April 1993, the Second Set of Cayman Islands Depositions commenced with the taking of the depositions of Burgess, Ebanks and Rodney Bond.

  C. Significant Pre-Trial and Trial Proceedings

  Given the extensive delays in scheduling the Second Set of Cayman Islands Depositions, on 22 February 1993, the parties were ordered to show cause why the matter should not proceed to trial on 3 May 1993. See Order to Show Cause, filed 22 February 1993. As indicated, following the 12 March 1993 Hearing, see 12 March 1993 Tr., it was ordered that (1) the Rule 104 Hearing would commence on 26 April 1993, (2) a final pre-trial conference would commence on 3 May 1993 and (3) trial would commence on 3 May 1993 immediately following the final pre-trial conference. See 17 March 1993 Order. *fn44"

  Also in March 1993, Podvey, Sachs, Meanor, Catenacci, Hildner & Cocoziello ("Podvey Sachs Meanor") moved for a stay of an order, filed 11 February 1992 (the "11 Feb. 1992 Order"), requiring Podvey Sachs Meanor to serve as court stand-by counsel for Bertoli. *fn45" On 25 March 1993, the motion for a stay was denied. See Order, filed 25 March 1993 (the "25 March 1993 Order"). Podvey Sachs Meanor appealed the 25 March 1993 Order and, on 8 April 1993, the Circuit granted a stay of the 11 Feb. 1992 Order insofar as it required Podvey Sachs Meanor to supply stand-by counsel to attend the Second Set of Cayman Islands Depositions. See Circuit Order, dated 8 April 1993. In all other respects, the Podvey Sachs Meanor motion for a stay was taken under advisement by the Circuit. See id.

  On Friday, 23 April 1993, at 3:20 p.m., with the Rule 104 Hearing to commence at 9:00 a.m. on Monday, 26 April 1993, the Circuit by facsimile transmission to the court and to the parties granted the remainder of the Podvey Sachs Meanor motion for a stay. See Circuit Order, dated 23 April 1993. The Circuit ordered that the Rule 104 Hearing and the trial, scheduled to commence on 3 May 1993, be stayed until resolution of Podvey Sachs Meanor's pending mandamus petition to withdraw as Bertoli's stand-by counsel. See id.

  On 7 May 1993, the Circuit affirmed the 11 Feb. 1992 Order insofar as it required Podvey Sachs Meanor to serve as stand-by counsel for Bertoli. *fn46" However, it granted the Podvey Sachs Meanor mandamus petition insofar as it required Podvey Sachs Meanor to be present in the Cayman Islands and to provide specific attorneys to serve as counsel for Bertoli should Bertoli withdraw his pro se status. *fn47" See Circuit Order, dated 7 May 1993 (the "7 May 1993 Circuit Order"); Writ of Mandamus, dated 7 May 1993. The 7 May 1993 Circuit Order also dissolved the stay previously imposed by the Circuit on the Rule 104 Hearing and trial. Id.

  By Order, filed 10 May 1993 (the "10 May 1993 Order"), in compliance with the decision of the Circuit, Podvey Sachs Meanor was ordered to "continue to serve as stand-by counsel for Bertoli" and to "provide a competent attorney at all pre-trial hearings (other than the trial depositions in the Cayman Islands) and at trial from the time of jury selection to the return of verdict." 10 May 1993 Order at 2. In addition, the 10 May 1993 Order scheduled the Rule 104 Hearing and trial to commence on 17 May 1993 and 1 June 1993 respectively. See id. at 2-3.

  The Rule 104 Hearing was held from 17 May 1993 to 19 May 1993, for the purpose of determining, prior to trial, a significant number of Bertoli's objections to proposed exhibits by the Government. See Transcript of Proceedings of 17 May 1993; Transcript of Proceedings of 18 May 1993; Transcript of Proceedings of 19 May 1993 (collectively, the "Rule 104 Hearing Tr."). At the conclusion of the Rule 104 Hearing, all Government exhibits offered were ruled admissible. See Rule 104 Hearing Tr. During the first half of the Rule 104 Hearing, Bertoli was represented by H. Curtis Meanor ("Meanor") of Podvey Sachs Meanor. *fn48"

  Following the Rule 104 Hearing, final pre-trial conferences (the "Final Pre-trial Conferences") were held on 27 May 1993 and 28 May 1993. See Transcript of Proceedings of 27 May 1993 (the "27 May 1993 Tr."); Transcript of Proceedings of 28 May 1993 (the "28 May 1993 Tr."). During the Final Pre-trial Conferences, numerous pending motions were decided and final issues for trial discussed. See 27 May 1993 Tr. at 1-15; 28 May 1993 Tr. at 1-83; see also infra Appendix A.

  At the Final Pre-trial Conference held on 28 May 1993, Podvey Sachs Meanor indicated that it had hired an outside attorney, Albert Carilli, Esq. ("Carilli"), to serve as stand-by counsel for Bertoli in lieu of an attorney from Podvey Sachs Meanor. See 28 May 1993 Tr. at 2-17. After a discussion concerning the ability of Carilli to begin serving as stand-by counsel so late in the proceedings, Carilli assumed the role of stand-by counsel in lieu of an attorney from Podvey Sachs Meanor. *fn49"

  Trial commenced with jury selection on 1 June 1993. See Minutes of Proceedings of 1 June 1993. As already discussed, Bertoli began trial representing himself pro se, with the assistance of Carilli as stand-by counsel. Id. After jury selection, opening arguments commenced on 4 June 1993. See Minutes of Proceedings of 4 June 1993. Although Bertoli had initially stated his opening statement would last two to three hours, See transcript of hearing (the "27 April 1993 Hearing"), held 27 April 1993 (the "27 April 1993 Tr.") at 31; 28 May 1993 Tr. at 54, Bertoli's opening statement actually lasted more than seven hours, and spanned from 4 June 1993 to 7 June 1993. *fn50" See Trial Transcript at 355-438, 511-94.

  On 7 June 1993, the Government commenced presenting its case against Bertoli. See Minutes of Proceedings of 7 June 1993. On 24 June 1993, the Government called Eisenberg as a witness. The Government's direct examination of Eisenberg covered approximately two and one half days of trial. See Trial Transcript at 2247-347, 2353-475, 2492-581. Bertoli's cross examination of Eisenberg lasted nearly twice that time, beginning on 29 June 1993 and concluding on 6 July 1993. See Id. at 2582-678, 2687-839, 2843-938, 2943-3067, 3079-155; see also Appendix C (direct examination of Eisenberg covered 311 transcript pages, while cross examination covered 543 transcript pages). Despite the excessive, repetitive and sometimes abusive nature of Bertoli's cross examination of Eisenberg, the cross examination was not limited.

  On 22 July 1993, the Government rested. See Minutes of Proceedings of 22 July 1993. At that point, Bertoli moved for a one week adjournment of trial. See Trial Transcript at 4991-95. Bertoli represented that "the additional time requested would, if granted, probably end up saving substantial time by permitting the defense to focus its case and present it more succinctly." See id. at 4991 (quoting Letter from Bertoli to court, dated 21 July 1993). Bertoli also represented that, if granted the adjournment, he would "have everything packaged, have the witnesses lined up and we can run a drill and move them very quickly." Id. at 5128. Based on Bertoli's representations, the adjournment was granted and trial was scheduled to recommence on 28 July 1993. See id. at 5127-30.

  Notwithstanding Bertoli's prior representations, the court received notification late on the afternoon of Friday, 23 July 1993 that, for the purpose of presenting his defense case, Bertoli intended to revoke his pro se status and desired the representation of Richard Levitt, Esq. ("Levitt"). See Letter from Levitt to court, dated 23 July 1993 at 1. Levitt represented that he was "familiar with both the pre-trial and trial proceedings in this matter and therefore [would] be prepared to begin the defense case on schedule." Id. at 1. Levitt also represented that his participation "[would] help focus and streamline the case, and therefore bring it to a speedier conclusion, consistent with the legitimate interests of all concerned." Id.

  On 27 July 1993, a hearing was held to consider the application of Levitt to be admitted pro hac vice for the purpose of presenting Bertoli's defense. See Minutes of Proceedings of 27 July 1993. Based upon Levitt's representations concerning both his prior experience with the case *fn51" and his ability to further focus and streamline the defense effort, Levitt was permitted to represent Bertoli. See id. ; see also Trial Transcript at 5147.

  On 28 July 1993, despite the repeated representations of Bertoli and Levitt that the defense would be able to proceed expeditiously if granted the previously-discussed adjournment, there was yet another request for an additional adjournment to allow the defense to collect documents subpoenaed from witnesses. *fn52" See Trial Transcript at 5475-89. With the stipulation that there would be no further delays or adjournments for the purpose of gathering documents or scheduling witnesses, this additional adjournment was granted until 3 August 1993. *fn53" See id. at 5488-91.

  On 3 August 1993, the defense case re-commenced. See Minutes of Proceedings of 3 August 1993. On 5 August 1993, outside the presence of the jury, Bertoli was sworn and stated he had decided not to testify in the case. See Trial Transcript at 6028-31. Also on 5 August 1993, the defense rested and the Government chose not present a rebuttal case. See Minutes of Proceedings of 5 August 1993. On 6 August 1993, a charge conference was held. *fn54" See 6 August 1993 Minutes.

   From 9 August 1993 to 10 August 1993, summations occurred. See Trial Transcript at 6374-6705. On 11 August 1993, the jury was charged and it began its deliberations. See id. at 6718-6849.

  On 17 August 1993, the jury forwarded the following communication: "After careful deliberation and consideration we have only reached a unanimous agreement on two counts of the indictment. At this point, we are unable to reach agreements on any of the other counts remaining." See Trial Transcript at 6906. After receiving further instructions, *fn55" the jury was directed to return to the jury room to continue deliberations. See id. at 6906-11.

  On 19 August 1993, the jury forwarded the following additional communication:

  

It is at this point that we ask for some guidance. We have reread your charge to us very carefully and have taken your additional advice very seriously. However, after completely examining and taking notes on every act included in each count, we have concluded with an eleven [to] one vote on the majority of them. This places us in a standstill as to how to arrive at a unanimous vote while still being fair and impartial. We would like you to know that we have reached agreement on three counts of the indictment, but want to know if you can give us further instructions or suggestions as to where we go from here. Thank you for your patience and cooperation. The jury.

  Id. at 6918 (emphasis added). Again the jury was re-instructed and directed to continue deliberations. Id. at 6921-23.

  On 24 August 1993, the jury returned with a verdict, finding Bertoli guilty on Counts Three and Six and not guilty on Counts One, Two, Four, Five and Seven. Minutes of Proceedings of 24 August 1993. The jury was polled and unanimously agreed with the verdict entered by the foreperson. Id.

  Discussion

  A. Renewed Motion to Dismiss Counts One and Two of the Redacted Second Superseding Indictment

  On 12 April 1993, pursuant to Fed. R. Crim. P. 7(c)(1) and 12(b)(2), Bertoli moved for dismissal of Counts One and Two of the Redacted Second Superseding Indictment in light of the then recent Supreme Court decision in Reves, U.S. , 113 S. Ct. 1163, 122 L. Ed. 2d 525 (1993). *fn56" Bertoli Dismissal Brief at 1. Bertoli argued that, because the predicate offenses alleged in Count One did not adequately set forth his "operation or management of Monarch Funding through a pattern of racketeering activity," dismissal was required. Id. at 1-2. Bertoli also argued the previous decisions by this court, holding that (1) the practice of "frontrunning" can be the basis for a RICO prosecution and (2) this prosecution did not violate the statute of limitations, should be revisited in light of Reves. Id. at 2.

  1. The Decision in Reves

  Reves involved a suit by the trustee in bankruptcy, on behalf of the Farmer's Cooperative of Arkansas and Oklahoma, Inc. (the "Co-op") and certain noteholders against, inter alia, Arthur Young & Co. ("Arthur Young"). *fn57" U.S. at , 113 S. Ct. at 1167-68. Arthur Young was charged with violations of RICO, 18 U.S.C. § 1962(c), *fn58" and securities fraud for failing to inform the Co-op, following two audits, that the value previously attributed to a particular asset by another auditor was incorrect. Id. at 1168.

  Applying the "operation or management" test set forth in Bennett v. Berg, 710 F.2d 1361, 1364 (8th Cir. 1983) (en banc), cert. denied sub nom., Prudential Ins. Co. of America v. Bennett, 464 U.S. 1008, 78 L. Ed. 2d 710, 104 S. Ct. 527 (1983), the district court granted summary judgment in favor of Arthur Young. The district court held:

  

Plaintiffs have failed to show anything more than that the accountants reviewed a series of completed transactions, and certified the Co-op's records as fairly portraying its financial status as of a date three or four months preceding the meeting of the directors and the shareholders at which they presented their reports. We do not hesitate to declare that such activities fail to satisfy the degree of management required by Bennett v. Berg.

   U.S. at , 113 S. Ct. at 1168 (quotation omitted).

  On appeal, the Eighth Circuit affirmed the grant of summary judgment in favor of Arthur Young on the RICO claim. Id. at 1169. Eighth Circuit applied the "operation or management" test of Bennett and held "that Arthur Young's conduct did not rise to the level of participation in the management or operation of the Co-op." Id. (quotation omitted).

  The Supreme Court considered only "the narrow question" of the meaning of the phrase in the RICO statute "'to conduct or participate, directly or indirectly, in the conduct of [a RICO] enterprise's affiars.'" 113 S. Ct. at 1169 (quoting 18 U.S.C. § 1962(c)). Upon acknowledging RICO's "liberal construction" clause and considering the legislative history of RICO, the Reves Court adopted the "operation and management" test advocated by the Eighth Circuit and the District of Columbia Circuit. See Bennett, 710 F.2d at 1364; Yellow Bus Lines, Inc. v. Drivers, Chauffeurs & Helpers Local Union 639, 286 U.S. App. D.C. 182, 913 F.2d 948, 954 (D.C.Cir. 1990) (en banc), cert. denied, 501 U.S. 1222, 111 S. Ct. 2839, 115 L. Ed. 2d 1007 (1991). The Reves Court held: "'To conduct or participate, directly or indirectly, in the conduct of [a RICO] enterprise's affairs,' one must participate in the operation or management of the enterprise itself." U.S. at , 113 S. Ct. at 1173. Accordingly, the Reves court determined Section 1962(c) did not extend to "complete 'outsiders' because liability depends on showing that the defendants conducted or participated in the conduct of the 'enterprise's affairs,' not just their own affairs." Id. (emphasis in original).

  The Reves Court, however, emphasized that liability under section 1962(c) "is not limited to upper management." Id. at 1173. According to the Court: "Lower-rung participants in the enterprise who are under the direction of upper management," as well as "others 'associated with' the enterprise who exert control over it as, for example, by bribery," may be liable. Id.

   Applying its holding to Arthur Young, the Reves Court stated:

  

It is undisputed that Arthur Young relied upon existing Co-op records in preparing the 1981 and 1982 audit reports [as permitted by professional accounting standards.] It is also undisputed that Arthur Young's audit reports revealed to the Co-op's board that the value of the gasohol plant had been calculated based on the Co-op's investment in the plant. . . . Thus, we only could conclude that Arthur Young participated in the operation or management of the Co-op itself if Arthur Young's failure to tell the Co-op's board that the plant should have been given its fair market value constituted such participation. We think that Arthur Young's failure in this respect is not sufficient to give rise to liability under [section] 1962(c).

  Id. at 1174.

  The Court, in Reves, described the issue considered as a "narrow question." It did not, for instance, speak in terms of any "nexus" requirement between the pattern of racketeering activity and the enterprise -- a component of numerous differing tests employed prior to Reves by some circuits. *fn59" By adopting the "operation and management" test of Bennett and Yellow Bus, the Reves Court rejected the various tests employed by the Second, Third, Fifth, Seventh, Ninth and Eleventh Circuits.

  In adopting the most restrictive of the tests applied by the circuits, the Court stated that the "liberal construction" clause of the RICO statute

  

obviously seeks to ensure that Congress' intent is not frustrated by an overly narrow reading of [RICO], but it is not an invitation to apply RICO to new purposes that Congress never intended. . . . In this case it is clear that Congress did not intend to extend RICO liability under [section] 1962(c) beyond those who participate in the operation or management of an enterprise through a pattern of racketeering activity.

  Id. at 1172 (emphasis added). Accordingly, the question presented in this motion was whether the Redacted Second Superseding Indictment alleged Bertoli participated, directly or indirectly, in the operation or management of Monarch through a pattern of racketeering activity. Id. at 1173.

  As a general matter, the Redacted Second Superseding Indictment charged that "Bertoli, with the acquiescence and assistance of . . . Eisenberg, directed the trading of various securities at Monarch," including the securities of Nature's Bounty, LCI, Toxic Waste, and High Tech. See Count One, P 3. The Redacted Second Superseding Indictment further stated: "The principal object of the racketeering activity was to use Monarch as a vehicle to engage in fraudulent securities trading practices, and thereby obtain money and other things of value. . . ." Id., P 8. Defendants "achieved the purposes of the racketeering activity and conducted and participated in the affairs of [Monarch] through various means and methods, including their fraudulent trading of the securities of Nature's Bounty, LCI, Toxic Waste, and High Tech, and their attempts to conceal and cover-up their fraudulent activities." Id., P 9.

  Contrary to Bertoli's contentions, the Redacted Second Superseding Indictment amply satisfied the "operation or management" requirement of Reves. A pattern of racketeering activity was alleged which demonstrated Bertoli exercised the requisite element of direction over the activities of Monarch.

  For instance, Racketeering Act 3(j) charged that Bertoli, in effecting the LCI Scheme, caused Monarch to act as the underwriter of the LCI IPO. Id., P 14. The Redacted Second Superseding Indictment further charged that, through Monarch, *fn60" Bertoli (1) caused the securities in the LCI IPO to be sold in the form of units, with each unit consisting of one share of common stock and two warrants, id., P 15, (2) caused virtually all of the securities in the LCI IPO to be sold to individuals and entities who were controlled by Bertoli, Eisenberg or Cannistraro, id., P 16, and (3) purchased substantial amounts of LCI securities at minimal cost through nominee accounts such as the Euro Bank brokerage account at Monarch, id., P 17 -- all in violation of Federal securities laws. Id., P 26.

  Racketeering Act 4(l) charged that Bertoli, in effecting the Toxic Waste Scheme, caused Monarch to act as the underwriter of the IPO of Toxic Waste securities. Id., P 30. The Redacted Second Superseding Indictment further charged that, through Monarch, Bertoli (1) caused the securities in the Toxic Waste IPO to be sold in the form of units, with each unit consisting of one share of common stock and two warrants, id., P 31, (2) caused virtually all of the securities in the Toxic Waste IPO to be sold to individuals and entities controlled by Bertoli, Eisenberg or Cannistraro, id., P 32, (3) purchased substantial amounts of Toxic Waste securities at minimal cost through nominee accounts, such as brokerage accounts at Monarch in the names of Parsico and Venture Partners, id., P 33, and (4) caused Monarch to disseminate to brokers, research analysts, securities newsletters, publishers, Monarch customers and others throughout the United States, more than 18,000 copies of the Toxic Waste Reports recommending the purchase of Toxic Waste securities, id., P 38 -- all in violation of Federal securities laws. Id., P 43.

  Racketeering Act 5(a) involved the mailings by Monarch of the fraudulent High Tech prospectus to various Monarch customers who had purchased High Tech securities in the High Tech IPO. Id., P 69. Racketeering Acts 5(f) and 5(g) charged that Bertoli, in effecting the Beneficial Owners Concealment Scheme, (1) caused Monarch to be the underwriter for the High Tech IPO, id., P 47, and (2) through Monarch, ensured that the registration statements and prospectus concealed information from the SEC and the investing public, id., P 49, in violation of Federal securities laws. Id., PP 54-55.

  Racketeering Act 6(g) charged that Bertoli, in effecting the High Tech Scheme, caused Monarch to act as the underwriter of the IPO of High Tech securities. Id., P 59. The Redacted Second Superseding Indictment further charged that, through Monarch, Bertoli (1) caused the securities in the High Tech IPO to be sold in the form of units, with each unit consisting of one share of common stock and two warrants, id., P 60, (2) caused virtually all of the securities in the High Tech IPO to be sold to individuals and entities controlled by Bertoli, Eisenberg or Cannistraro, id., P 61, and (3) purchased substantial amounts of High Tech securities at minimal cost through nominee accounts, such as brokerage accounts at Monarch in the names of Parsico, Venture Partners, VPI and Rowland, id., P 62 -- all in violation of Federal securities laws. Id., P 69. Numerous aspects of the securities fraud were also alleged by the Redacted Second Superseding Indictment to have been committed through use of nominee accounts at Monarch. Id., P 64.

  Finally, as described previously in the Facts Section of this opinion, the Racketeering Acts set forth in the description of the Cover-Up Scheme charged Bertoli with (1) shredding and removing documents from Monarch and elsewhere, (2) hiding proceeds of racketeering activity and (3) submitting false and fraudulent affidavits to the court. Id., P 73.

  The numerous Racketeering Acts alleged in Count One of the Redacted Second Superseding Indictment adequately charged that Bertoli "participated in the operation or management of [Monarch] itself." Reves, U.S. at , 113 S. Ct. at 1173. The Racketeering Acts alleged demonstrated Bertoli was able to cause Monarch to act as the underwriter for the LCI, Toxic Waste and High Tech IPO's. *fn61" It was adequately alleged Bertoli exercised such control over Monarch that he was able to cause Monarch to act in contravention of its responsibilities as underwriter.

  As well, the allegations of the Redacted Second Superseding Indictment adequately charged that, under Bertoli's direction, Monarch concealed subpoenaed documents from the grand jury, disseminated false information and structured the sale of shares so as to further Bertoli's fraudulent schemes. See Count One, PP 11-50, 72-73. In addition, it was adequately charged that, because of the control he exercised over Monarch, Bertoli was able to use numerous nominee brokerage accounts at Monarch to reap substantial profits without interference or inquiry. See id., PP 2-9.

  Accordingly, Bertoli's motion to dismiss Counts One and Two for failure to meet the "operation and management" requirement of Reves was denied.

  2. Statute of Limitations

  Bertoli contended the holding in Reves provided a basis for reconsideration of his claim that the RICO charges in the Redacted Second Superseding Indictment were barred by the statute of limitations. Bertoli argued:

  

Given the requirement of [Reves ] that the pattern of racketeering activity evidence the defendant's control or management of the enterprise, activity post-dating the demise of the enterprise can hardly qualify as "racketeering acts" under RICO; one cannot conduct the affairs, or conspire to conduct the affairs, of an "enterprise" which no longer was involved in the affairs which supposedly represented the charged racketeering activity. For this reason, the charges of obstruction of justice which post-date Monarch's demise may not be considered racketeering conduct under RICO; such acts cannot possibly be evidence of Bertoli's control or management of the enterprise -- as they must under [Reves ] -- as the enterprise did not at the time exist.

  Bertoli Dismissal Brief at 13.

  The holding in Reves does not support Bertoli's argument that "specified crimes may be 'racketeering predicates' under RICO only if they further the defendant's 'participation in the operation or management of' the named enterprise -- here Monarch." See Bertoli Dismissal Brief at 4. The decision in Reves focussed on determining who may be charged with a RICO violation. The Court held that, only if a defendant has conducted or participated directly or indirectly in the conduct of an enterprise through a pattern of racketeering activity, may the defendant then be charged. Reves, U.S. at , 113 S. Ct. at 1173. Neither the statute nor the decision in Reves required that only those predicate acts demonstrating control may be included in the pattern of racketeering activity charged.

  To be charged under 18 U.S.C. § 1962(c), a defendant must have participated directly or indirectly in the operation or management of the enterprise. For an act, however, to be included as a predicate act in a pattern of racketeering activity, the act must meet the requirements of relatedness and continuity set forth in H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989). The decision in Reves did not discuss H.J. Inc. or the pattern of racketeering activity requirement. It did not describe a selection process whereby certain predicate acts may be charged because they demonstrate an element of direction over the enterprise and certain predicate acts must be dismissed because they lack that element. Reves addressed a "narrow question." U.S. at , 113 S. Ct. at 1169. It described to whom liability under RICO extends. Id. at 1172. There is no basis to interpret the decision in Reves as overruling or displacing the requirements of H.J. Inc.

  The question of whether Counts One and Two should be dismissed, as barred by the statute of limitations, was extensively considered in Cannistraro, 800 F. Supp. at 72-80, and rejected. Significantly, Bertoli failed to present any new facts and Reves did not present any basis for reconsideration of this issue. Accordingly, Bertoli's motion to dismiss Counts One and Two as barred by the statute of limitations was denied.

  3. Charges of Frontrunning

  Bertoli contended that, in light of Reves, this court should reconsider its previous decisions holding that "frontrunning" research reports is a violation of the securities laws. Bertoli Dismissal Brief at 14. Bertoli argued that "frontrunning" extended RICO to a "'new purpose Congress never intended.'" Id. (quoting Reves, 113 S. Ct. at 1172).

  On two prior occasions, the validity of the Government's theory of securities fraud was raised by Bertoli, extensively briefed by the parties and reviewed by this court. See Eisenberg, 773 F. Supp. at 717-25; Cannistraro, 800 F. Supp. at 80-84. Bertoli did not present any basis for reconsideration of those decisions. Accordingly, Bertoli's motion to dismiss Counts One and Two for failure to state a violation of the securities laws was denied.

  B. Objections to the First Set of Cayman Islands Depositions Testimony and Documents

  On 24 July 1992, the parties were directed "to brief the admissibility of prior statements by a witness and former testimony the parties intended to introduce at trial." See Order, filed 24 July 1992 (the "24 July 1992 Order").

  On 1 September 1992, the Government submitted a Memorandum of Law Concerning the Admissibility of Former Testimony (the "Government 1 Sept. 1992 Brief") in response to the 24 July 1992 Order. The Government indicated it intended to use at trial "some or all" of the First Set of Cayman Islands Depositions, arguing "these depositions will be admissible as former testimony, pursuant to Rule 15 of the Federal Rules of Criminal Procedure and Rule 804(b)(1) of the Federal Rules of Evidence." Government 1 Sept. 1992 Brief at 3.

  On 10 September 1992, Bertoli filed a letter reply memorandum (the "Bertoli 10 Sept. 1992 Reply Brief") in opposition to the Government 1 Sept. 1992 Brief. The Bertoli 10 Sept. 1992 Reply Brief was two pages in length and cited no case law. Bertoli argued he was unable to make specific objections to the Government's introduction of Cayman Islands testimony, due to the Government's lack of specificity. Bertoli 10 Sept. 1992 Reply Brief at 1. Bertoli stated:

  

The Government has not stated which parts of the Cayman Islands depositions it intends to introduce into evidence. As a result, this defendant cannot make specific objections at this time. However, the testimony of the Cayman witnesses is packed with objectionable questions including but not limited to:

  

1. Leading questions;

  

2. Compound questions;

  

3. Questions assuming facts not in evidence;

  

4. Testifying questions.

  Bertoli 10 Sept. 1992 Reply Brief at 1. In addition, Bertoli indicated his intent to object to "all of the Cayman Islands documents and testimony" on the ground that "they were obtained in violation of Rule 15." Id. at 2.

  Bertoli indicated that, as to all of the documents obtained as a result of the First Set of Cayman Islands Depositions (the "First Set of Cayman Islands Documents"), he could not make specific objections because "the Government has not stated which specific documents obtained from the Cayman Islands it intends to introduce into evidence." Id. Bertoli did indicate that possible objections included:

  

1. The time of preparation of some documents makes the evidence untrustworthy;

  

2. the handwritten notations on some documents should be redacted because there has been no opportunity to confront the author;

  

3. the genuineness of a number of documents are questionable;

  

4. the inaccuracies in certain documents make them unreliable and therefore inadmissible;

  

5. the documents, in some instances, are prejudicial and the prejudice outweighs their usefulness in aiding the jury in understanding the issues.

  Id. at 2.

  On 14 September 1992, Bertoli submitted a supplemental letter brief (the "Bertoli 14 Sept. 1992 Supp. Brief"), again in response to the 24 July 1992 Order. The Bertoli 14 Sept. 1992 Supp. Brief was three pages long and cited some case law. Bertoli 14 Sept. 1992 Supp. Brief at 2-3. As before, Bertoli indicated he would object to a large portion of the testimony he believed would be offered by the Government, specifically the entire First Set of Cayman Islands Depositions and a number of unspecified documents from the First Set of Cayman Islands Documents. Id. at 3.

  On 2 October 1992, the Government submitted a letter brief (the "Government 2 Oct. 1992 Reply Brief") which essentially responded to the issues raised in the Bertoli 14 Sept. 1992 Supp. Brief. Government 2 Oct. 1992 Reply Brief at 2. The Government 2 Oct. 1992 Reply Brief was seven pages long and discussed the appropriate rules of evidence and case law as they related, inter alia, to Bertoli's objections to the First Set of Cayman Islands Depositions. Id. at 5-6.

  In light of the nonspecific and unhelpful submissions received with regard to the 24 July 1992 Order, and in an attempt to resolve many of the admissibility issues before trial, the parties were directed, on 16 October 1992 (the "16 October 1992 Order"), *fn62" as follows:

  

Bertoli and Cannistraro have expressed their intent to object to the entire First Set of Cayman Islands Depositions, as well as to specific questions and answers within those depositions.

  

Concerning Bertoli's and Cannistraro's objection to the First Set of Cayman Islands Depositions as a whole, the Defendants are directed to submit a brief to support their request to exclude these depositions, stating the legal and factual grounds as to why the First Set of Cayman Islands Depositions should be suppressed in their entirety.

  

. . .

  

Concerning Bertoli's and Cannistraro's objections to the specific questions or testimony contained in the First Set of Cayman Islands Depositions, Bertoli and Cannistraro are to assume that all direct and re-direct testimony will be introduced as evidence by the Government at trial. Bertoli and Cannistraro must document their separate objections to the First Set of Cayman Islands Transcripts on a transcript-by-transcript, question-by-question, answer-by-answer, line-by-line basis. A separate objection must be made for each question or answer and each and every objection must:

  

(1) State the name of the witness whose transcript is being reviewed;

  

(2) State the page number and line number of the question or testimony being objected to;

  

(3) State the precise nature of the objections (i.e. hearsay, leading question, etc.); and

  

(4) State the precise legal bases, including relevant rules and case law, for each objection.

  

Similarly, the Government is to assume that all cross and re-cross examinations contained in the First Set of Cayman Islands Depositions will be introduced as evidence by Bertoli and/or Cannistraro at trial. The Government must document its separate objections to the First Set of Cayman Islands Transcripts on a transcript-by-transcript, question-by-question, answer-by-answer, line-by-line basis. A separate objection must be made for each question or answer and each and every objection must:

  

(1) State the name of the witness whose transcript is being reviewed;

  

(2) state the page number and line number of the question or testimony being objected to;

  

(3) state the precise nature of the objections (i.e. hearsay, leading question, etc.); and

  

(4) state the precise legal bases, including relevant rules and case law, for each objection.

  

. . .

  

The parties are advised that this is their opportunity to object both the First Set of Cayman Islands transcripts in their entirety and to any specific questions or testimony contained in the First Set of Cayman Islands Depositions. Failure to object at this time will be considered a waiver and will preclude any future objection.

  16 Oct. 1992 Order at 3-5 (emphasis in original).

  Regarding documents obtained during the First Set of Cayman Islands Depositions, the 16 Oct. 1992 Order directed the parties as follows:

  

Bertoli has objected to the admission of the First Set of Cayman Islands Documents. To the extent the Defendants and the Government plan to object to the admission of the First Set of Cayman Islands Documents, objections must be made on a document-by-document basis. A separate objection must be made for each and every document and the objection must:

  

(1) State the witness from whom the document was obtained;

  

(2) state the transcripts, page numbers and line numbers which discuss the document;

  

(3) state precisely why the document or portion of the document is objectionable (i.e. authenticity, chain of possession, etc.); and

  

(4) state precisely why the document should be excluded, including citation to relevant legal rules and case law.

  

An attempt to merely address in bulk all of the First Set of Cayman Islands Documents, or even on a category basis, will neither be sufficient nor will it be accepted. In addition, one copy of each document to which objections have been made must be submitted at the time the brief is filed.

  

. . .

  

The parties are advised that this is their opportunity to object to any of the First Set of Cayman Islands Documents. Failure to object to any of the First Set of Cayman Islands Documents at this time will be considered a waiver and will preclude any future objection.

  Id. at 5-6 (emphasis in original).

  The various objections of Bertoli and the Government to testimony and documents from the First Set of Cayman Islands Depositions are discussed below. *fn63" Bertoli objected to the First Set of Cayman Islands Depositions in their entirety. As well, both Bertoli and the Government objected to specific items of testimony and specific documents from the First Set of Cayman Islands Depositions.

  1. Bertoli's Objections to the First Set of Cayman Islands Depositions In Their Entirety

  Bertoli argued the First Set of Cayman islands Depositions "should be suppressed in their entirety because they violate the intent and the wording of Rule 15 of the Federal Rules of Criminal Procedure." Bertoli Objections Brief at 1. According to Bertoli:

  

Rule 15 was designed to preserve evidence and not be used for purposes of discovery. Although prior counsel for defendant Bertoli waived any objection as to materiality with respect to the First Superseding Indictment, returned on September 29, 1989, no waiver was given with respect to the Second Superseding Indictment returned on January 17, 1992.

  

The Government admits the use of information obtained for the first time as a result of the First Set of Cayman Islands Depositions to obtain the Second Superseding Indictment. Further, the Government admits that the MLA Treaty hearings were used for the purposes of discovery. As a result thereof, the Government cannot claim a waiver of the requirements of Rule 15 with respect to the Second Superseding Indictment.

  Bertoli Objections Brief at 1-2. Bertoli also argued his counsel signed the 24 April 1990 Cayman Discovery Order only because "if counsel did not sign the Consent Order, the Defendants would not have been able to participate in the [MLA] Treaty discovery request of the Government." Bertoli Objections Brief at 2.

  Bertoli also disputed the constitutionality of the MLA Treaty and of the MLA Treaty Hearing. Regarding the MLA Treaty, Bertoli argued "the [MLA] Treaty violates the Sixth Amendment constitutional right to a fair and public trial because it provides no rights to a Defendant." Id. The same argument was made with regard to the [MLA] Treaty Hearings. Id. Bertoli stated:

  

The [MLA] Treaty Hearings were not conducted in accordance with U.S. law but in a hybrid of Cayman and British law. . . . Cross examination was limited with no attacks on credibility or bias allowed and no Voir Dire of documents permitted. Further, defendant Bertoli was prohibited from introducing exhibits through witnesses, and as described by [Judge] Malone, the [MLA] Treaty Hearings are a one way street for the United States.

  Bertoli Objections Brief at 2. Finally, Bertoli contended the MLA Treaty "is unconstitutional because the Government has sought to apply it retrospectively in violation of the Constitutional guarantee of substantive due process under the Fifth Amendment." Id. at 2.

  These arguments were without merit. With regard to the Government's compliance with Fed. R. Crim. P. 15(a), the use of depositions in a criminal case is permitted by Rule 15. The Rule provides:

  

Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness or a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that the testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording or other material not privileged, be produced at the same time and place. . . .

  

[Such evidence,] so far as admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable as . . . defined in Rule 804(a). . . . *fn64"

  In this case, the Government fully complied with Rule 15 procedures and requirements. In conjunction with the MLA Treaty Request, the Government filed, on 4 April 1992, an amended motion for depositions in the Cayman Islands pursuant to Rule 15. *fn65" First Cayman Discovery Opinion at 7. The Defendants had notice of and initially submitted opposition to the motion. Id. at 6-9. Accordingly, the procedural requirements of Rule 15 were met. *fn66"

  Bertoli argued that the procedures followed during the First Set of Cayman Islands Depositions violated Rule 15(d)(2) *fn67" by applying a mixture of Cayman Islands and British law, by limiting the scope and manner of examination and cross examination, by disallowing attacks on credibility or bias and voir dire of documents and by prohibiting Bertoli from introducing exhibits through witnesses. Bertoli Objections Brief at 1-2. Bertoli did not supply legal authority for this position; nor was the position legally sound. *fn68"

  The application of foreign law to the taking of foreign depositions in criminal matters does not per se require the exclusion from evidence of those depositions. See United States v. Sturman, 951 F.2d 1466, 1480-81 (6th Cir. 1991) (taking of deposition of foreign witness pursuant to Swiss law did not violate Rule 15), cert. denied, U.S. , 112 S. Ct. 2964, 119 L. Ed. 2d 586 (1992); United States v. Casamento, 887 F.2d 1141, 1175 (2d Cir. 1989) (same), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1043, 110 S. Ct. 1138 (1990); United States v. Salim, 855 F.2d 944, 949-52 (2d Cir. 1988) (same; French law). As one court has stated in a similar context:

  

We . . . must be willing to acquiesce in the insistence of the French court that French law be applied to the taking of the Rouhani deposition . . . unless the manner of examination required by the law of the host nation is so incompatible with our fundamental principles of fairness or so prone to inaccuracy or bias as to render the testimony inherently unreliable [or] . . . so devoid of substance or probative value as to warrant its exclusion altogether.

  Salim, 855 F.2d at 953; accord Sturman, 951 F.2d at 1480-81; Casamento, 887 F.2d at 1175.

  Nothing in this case indicated that the First Set of Cayman Island Depositions should have been excluded on the basis of the law or procedures employed by the Cayman Grand Court. Contrary to Bertoli's argument, the transcripts from the First Set of Cayman Islands Depositions indicated the Cayman Grand Court permitted direct, cross and re-direct examination of both fact and document witnesses and permitted objections to be made. *fn69" Bertoli was able to and did cross examine both fact and document witnesses in detail, *fn70" and was also permitted to attack the credibility of fact witnesses. *fn71"

  As for Bertoli's argument that he was denied the opportunity to re-cross examine, this argument was not entirely true. On occasion, Bertoli was allowed to re-cross examine witnesses. See Bechard Dep. Tr. at 31. Although the Cayman Grand Court precluded re-cross examination in most instances, Bertoli was able to specify only one such instance in which he was entitled to re-cross examination under United States v. Riggi, 951 F.2d 1368, 1376 (3d Cir. 1991). *fn72" Bertoli was given leave to cure this defect by taking additional depositions in the Cayman Islands. See Cannistraro, 800 F. Supp. at 70.

  Bertoli's objections to the First Set of Cayman Islands Depositions on constitutional grounds were equally without merit. First, there was no basis for Bertoli's argument that the depositions violated the Sixth Amendment because the proceedings were closed to the public. *fn73" See Bertoli Objections Brief at 2. Any evidence obtained from the First Set of Cayman Islands Depositions, including documents and testimony, were openly used and tested in this court and, if admissible, were offered into evidence at a public trial. See United States v. Tunnell, 667 F.2d 1182, 1187 (5th Cir. 1982) (citing California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970)). Accordingly, Bertoli's Sixth Amendment right to a fair and public trial was not violated by the First Set of Cayman Islands Depositions.

   Bertoli's argument that the MLA Treaty violates "the Sixth Amendment right to a fair and public trial because it provides no rights to a defendant" was similarly baseless. Rule 15(d) required the Cayman Islands Depositions to conform to the same scope and manner of direct examination and cross-examination as would be allowed in the trial itself. As discussed, Bertoli was not deprived of any protection normally accorded to defendants.

  Even if Bertoli had been deprived of rights such as cross and re-cross examination during the First Set of Cayman Islands Depositions -- a deprivation which the deposition transcripts definitively indicate did not occur, *fn74" see supra at pp. 82-83 & notes therein -- Bertoli's argument was still meritless. Regardless of what occurred in the Cayman Islands, Bertoli was able to oppose, and did oppose, the admission into evidence of any testimony or documents obtained as a result of the First Set of Cayman Island Depositions. *fn75" See Salim, 855 F.2d at 948-52 (preservation of testimony and ultimate admissibility of evidence obtained in foreign deposition are separate questions; admissibility can be determined later in accordance with Federal Rules of Evidence).

  Finally, Bertoli argued the MLA Treaty was "unconstitutional because the Government has sought to apply it retrospectively in violation of the constitutional guarantee of substantive due process under the Fifth Amendment." Bertoli Objections Brief at 2. This argument required little response; Bertoli offered no legal authority or reasoning to support or explain his position. In fact, all that Bertoli offered on this point was the above-quoted sentence. See id. Put simply, there was no basis for this argument.

  In light of the foregoing, Bertoli's objections to the First Set of Cayman Islands Depositions in their entirety were rejected. The depositions were taken in a manner that satisfied both the requirements and the spirit of Fed R. Crim P. 15 and the Constitution of the United States. See Sturman, 951 F.2d at 1481 ("substantial compliance with Rule 15 rebuts any claims based on due process").

  2. Bertoli's Objections to Specific Testimony From the First Set of Cayman Islands Depositions

  Bertoli made 158 specific objections to the testimony taken in the First Set of Cayman Island Depositions. Although each of these specific objections was individually considered, a discussion of some general points is appropriate.

  Of the 158 specific objections made by Bertoli, only six were raised at the time of the depositions. Federal Rule of Criminal Procedure 15(f) specifically states: "Objections to deposition testimony or evidence or parts thereof and the grounds for the objection shall be made at the time of the taking of the deposition. Id. (emphasis added). The Advisory Committee Notes to Rule 15 specifically explain:

  

Subdivision (f) is intended to insure that a record of objections and the grounds for the objections is made at the time the deposition is taken when the witness is available so that the witness can be examined further, if necessary, on the point of the objection so that there will be an adequate record for the court's later ruling upon the objection.

  Fed. R. Crim. P. 15(f), Advisory Comm. Note (discussing 1974 Amendment).

  As listed infra in Appendix D, a significant portion of Bertoli's specific objections to testimony were objections regarding the form of the question -- such as, leading question, compound question and the assumption of facts not in evidence. Objections to form should have been made at the time the objectionable question was asked during the First Set of Cayman Islands Depositions. See Fed.R.Crim.P. 15(f); McCormick, Evidence, § 306 at 319-20 (4th ed. 1992). In this way, assuming Bertoli's objections were meritorious, the Government could have re-phrased the objectionable questions. Id. ; see also McLaughlin, Fed. R. Evid. Prac. Guide, § 16.17[2] at 16-17 (1992). To have considered Bertoli's objections to form after the fact would have deprived the Government of the opportunity to re-phrase and would have been unfair. *fn76"

  Unquestionably, Bertoli was permitted by Judge Malone to make objections. *fn77" Moreover, Bertoli was aware of his responsibility to make and to preserve his objections *fn78" for the record. *fn79" Accordingly, the majority of specific objections made by Bertoli pursuant to the 16 Oct. 1992 Order were untimely; they were not made during the First Set of Cayman Islands Depositions.

   a. Deposition of Coleman

  Bertoli objected to the "complete testimony" of Coleman on the ground that "he was incompetent to testify" because he lacked the capacity to perceive and remember the events he claimed to have witnessed. Bertoli Objections Brief at 5. Bertoli further argued:

  

The Coleman testimony was evasive and his answers unresponsive to the questions with a virtual total lack of memory as to time and events. Coleman was not called in compliance with the procedures of the Rule 15 of the Federal Rules of criminal procedure. Coleman was not scheduled as a witness in the Cayman Depositions until the proceedings commenced and therefore the notice requirement of Rule 15(a) was not adhered to.

  Bertoli Objections Brief at 5.

  Bertoli's argument that Coleman was an incompetent witness who gave unresponsive answers was rejected. A review of the extensive transcript of Coleman's deposition -- consisting of 303 pages covering one and one half days of testimony -- indicated that Coleman was a competent witness who remembered a substantial number of facts regarding the various companies he administered, while employed at Paget Brown, for Bertoli, Eisenberg and Cannistraro. Moreover, to the extent Coleman's answers may have been non-responsive, Bertoli had the opportunity to seek and should have sought to confront such answers.

  Bertoli's objection that the notice requirements of Rule 15 were not met was also without merit. Rule 15(b) provides:

  

The party at whose instance a deposition is to be taken shall give to every party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined.

  Fed. R. Crim. P. 15(b) (emphasis added). Significantly, Rule 15(b) provides no specific time for advance notice but, instead, only requires that notice of deposition be "reasonable." Bertoli was given reasonable notice of the Coleman deposition.

  In April 1990, Bertoli was initially put on notice that Coleman was a potential Cayman Islands witness. At that time, Coleman was included in Appendices 5 and 6 of the MLA Treaty Request as one of the persons to be deposed in the Cayman Islands. See MLA Treaty Request, App. 5-6. On 4 September 1991, prior to the taking of any of the First Set of Cayman Islands Depositions, the Government, in the presence of Bertoli and his stand-by counsel, requested permission from Judge Malone to depose Coleman. *fn80" See 4 Sept. 1991 Proceedings Tr. at 11-13. Judge Malone approved the request and tentatively set the Coleman deposition for 10 September 1991. See id. No objection was made by Bertoli to the request to depose Coleman or to the date set by Judge Malone. See id. On 6 September 1991, the Government reiterated its request to depose Coleman and advised both Bertoli and Judge Malone that Coleman had agreed to appear on 10 September 1991 to be deposed. See 10 Sept. 1991 Proceedings Tr. at 6-7. Again, no objection was made by Bertoli.

  Coleman's testimony did not actually commence until 12 September 1991. Immediately prior to the beginning of the Coleman deposition, Bertoli objected, for the first time, that he had insufficient notice to conduct a cross examination of Coleman. See 12 Sept. 1991 Proceedings Tr. at 16-17. Despite this claim, Bertoli conducted an extensive cross examination of Coleman which, in fact, exceeded the length of the Government's direct examination of Coleman. See Coleman Dep. Tr. at 121-286 (Bertoli's cross).

  There was no question that Bertoli received reasonable notice of Coleman's deposition and that the notice requirements of Rule 15(b) were satisfied. From April 1990 to August 1991, Bertoli was aware that the Government intended to depose Coleman and had almost one and one half years to prepare for that deposition. Although the Government briefly changed its mind, Bertoli was again adequately notified of the intent to depose Coleman. Bertoli failed, on two occasions, to object to the rescheduling of the Coleman deposition at that time or to request an extension of time to prepare for the Coleman deposition. Moreover, the extensive nature of Bertoli's cross examination of Coleman indicated the notice given was sufficient and Bertoli suffered no prejudice from the taking of the Coleman deposition. *fn81"

  Of Bertoli's sixty-five objections to specific testimony from the Cayman Islands deposition of Coleman, only one specific objection was made at the time of the Coleman deposition. For this and other reasons specified infra in Appendix D, Bertoli's objections to the specific testimony of Coleman were largely overruled. Bertoli's objection to page 162, lines 1-6 of the Coleman deposition was timely-made and was sustained.

  In addition, Bertoli's objection to testimony at page 110, lines 11-15 was rendered moot because the Government represented it would "not offer this passage into evidence." See Government Response Brief at 62; see also infra Appendix D (containing detailed listing of Bertoli's objections to specific testimony of Coleman from First Set of Cayman Islands Depositions, as well as bases for disposition of those objections).

  b. Deposition of Rodney Bond

  Bertoli objected to "all testimony" of Rodney Bond on the ground that such testimony violated Rule 612 of the Federal Rules of Evidence. *fn82" Bertoli Objections Brief at 8-9. According to Bertoli:

  

Government prosecutor David Rosenfield [("Rosenfield")], over the objection of defendant Bertoli and outside the presence of the Chief Justice Sir Denis Malone, presented witness Rodney Bond with a large pile of what was purported to be copies of Monarch Funding Corp. records, at a break between testimony. See [Rodney] Bond [Dep. Tr.] at 40-41, 42-54; 10 Sept. 1991 Proceedings Tr. at 3-7. Rosenfield further mislead the Cayman Court . . . when he stated: "Secondly, your Honor, there is nothing in the Federal Rules of Evidence that requires a witness to exhaust his memory before documents are shown to him to see what those documents may or may not mean to that witness." Rosenfield knew or should have known that that statement was false.

  Bertoli Objections Brief at 8. Bertoli argued the alleged actions of Rosenfield "placed serious doubt on all testimony of [Rodney] Bond after transcript page 61" *fn83" because (1) Bertoli was denied the opportunity to see the documents allegedly shown to Rodney Bond, in violation of Rule 612 and (2) "the trier of fact will never know what influence those unknown documents had upon the witness Rodney Bond." Id. at 8-9. Bertoli insisted that if the relevant testimony was not stricken and was presented at trial, a mistrial was appropriate. Id. at 9.

  Bertoli's arguments were without merit. First, significant portions of the Rodney Bond testimony to which Bertoli objected did not in any way discuss the documents which were provided to Rodney Bond by the Government. The documents provided to Rodney Bond consisted of a set of Monarch and Irving Trust records, all related to Euro Bank. See Government Response Brief at 30-31. Because the Government's questioning and Rodney Bond's testimony from pages 59-90, 92-97 and 335-58 of the deposition did not relate to these documents or to their subject matter, Bertoli's objection with regard to this testimony was without merit.

   Second, although the Government conceded that its questioning and Rodney Bond's testimony from pages 99-132, 140-191 and 196-202 of the deposition concerned the documents presented to Rodney Bond by the Government, the deposition transcript indicated that at no point during Rodney Bond's testimony did the Government use the documents to refresh the recollection of Rodney Bond with respect to the documents or the subject matter of the documents. Instead, the Government presented Rodney Bond with documents so that he could identify and explain those documents. Accordingly, because the documents were not used for the purpose of refreshing recollection, Fed. R. Evid. 612(2) did not apply. There was therefore, contrary to Bertoli's argument, no need for the Government to ensure that Rodney Bond's memory was exhausted or to provide Bertoli with copies of those documents. *fn84" See Sporck v. Peil, 759 F.2d 312, 317-18 (3d Cir.) (no right under Rule 612 to documents shown to witness if not used to refresh recollection) (citing United States v. Wright, 160 U.S. App. D.C. 57, 489 F.2d 1181, 1188-89 (D.C.Cir. 1973)), cert. denied, 474 U.S. 903 (1985).

  In essence, Bertoli objected to a process which, under the Federal Rules of Evidence, was appropriate. A witness may be presented with documents for the purposes of determining whether he or she had knowledge of those documents and of having the witness explain the documents. See McLaughlin, Federal Evidence Practice, § 6.10[2] at 6-122 to 6-125; id., § 12.03[2] at 12-69. In this case, the documents examined by Rodney Bond were admitted into evidence at trial pursuant to Fed. R. Evid. 803(6) and 18 U.S.C. § 3505. *fn85" Accordingly, Bertoli's objection was without merit. *fn86"

  Bertoli also objected to the testimony of Rodney Bond relating to Government exhibit 2500 ("Exhibit 2500"), *fn87" see Rodney Bond Dep. Tr. at 347-48, 354, 357, on the ground that Exhibit 2500 violated the "best evidence rule" of Fed. R. Evid. 1002. *fn88" See Bertoli Objections Brief at 9. This argument was without merit. Rule 1002 must be read in conjunction with Rule 1003, which provides that a "duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." Fed. R. Evid. 1003. Bertoli provided no basis for concluding that the admission of Exhibit 2500 would be unfair or that the original was not authentic. *fn89"

  Of Bertoli's sixty-eight objections to specific testimony from the Cayman Islands deposition of Rodney Bond, the vast majority were not made at the time of Rodney Bond's deposition. For this and other reasons specified infra in Appendix D, Bertoli's objections to the specific testimony of Rodney Bond were largely overruled. The objection to testimony at page 79, line 22 to page 80, line 1 of Rodney Bond's deposition was timely-made and was sustained. See also infra Appendix D, § B (containing detailed listing of Bertoli's objections to specific testimony of Rodney Bond from the First Set of Cayman Islands Depositions, as well as bases for disposition of those objections). *fn90"

  c. Deposition of Gillooly

  Bertoli's only general objection to testimony of Gillooly was that the testimony from page 14, line 17 to page 40, line 19 and page 66, line 23 to page 79, line 22 of the deposition should be stricken because Gillooly was presented with documents prior to the exhaustion of his memory. See Bertoli Objections Brief at 4. This objection was not made at the time of Gillooly's deposition and was not considered pursuant to Fed. R. Crim. P. 15(f) *fn91"

  Of Bertoli's twenty objections to specific testimony from the Cayman Islands deposition of Gillooly, not one of these objections was made at the time of the Gillooly deposition. For this and other reasons specified infra in Appendix D, Bertoli's objections to the specific testimony of Gillooly were overruled. See infra Appendix D (containing detailed listing of Bertoli's objections to specific testimony of Gillooly from the First Set of Cayman Islands Depositions, as well as bases for disposition of those objections).

  d. Deposition of Duggan

  Bertoli's only general objection to testimony of Duggan was that the testimony from page 24, line 9 to page 46, line 19 of the deposition should be stricken because Duggan was presented with documents prior to the exhaustion of his memory. See Bertoli Objections Brief at 4. This objection was not made at the time of Duggan's deposition and was not considered pursuant to Fed. R. Crim. P. 15(f). *fn92"

   Of Bertoli's three objections to specific testimony from the Cayman Islands deposition of Duggan, not one of these objections was made at the time of the Duggan deposition. For this and other reasons specified infra in Appendix D, Bertoli's objections to the specific testimony of Duggan were overruled. In addition, Bertoli's objections to testimony at page 41, line 1 to page 45, line 6 and page 45, line 16 to page 46, line 5 of the deposition were rendered moot because the Government represented it would not offer these passages into evidence. See Government Response Brief at 105-06; see also infra Appendix D (containing detailed listing of Bertoli's objections to specific testimony of Duggan from First Set of Cayman Islands Depositions, as well as bases for disposition of those objections).

  e. Deposition of Sheree Ebanks

  Bertoli's only general objection to testimony of Sheree Ebanks was that the testimony from page 19, line 14 to page 25, line 18 of the deposition should be stricken because Sheree Ebanks was presented with documents prior to the exhaustion of her memory. See Bertoli Objections Brief at 4. This objection was not made at the time of Sheree Ebanks' deposition and was not considered pursuant to Fed. R. Crim. P. 15(f). *fn93"

  Of Bertoli's two objections to specific testimony from the Cayman Islands deposition of Sheree Ebanks, only one of these objections was made at the time of Sheree Ebanks' deposition. For this and other reasons specified infra in Appendix D, Bertoli's objection to the specific testimony of Sheree Ebanks at page 24, line 19 to page 25 line 118 of the deposition was overruled. Bertoli's objection to the specific testimony of Sheree Ebanks at page 23, lines 13-18, which was made at the deposition, was sustained. See infra Appendix D (containing detailed listing of Bertoli's objections to specific testimony of Sheree Ebanks from First Set of Cayman Islands Depositions, as well as bases for disposition of those objections).

  f. Depositions of Chan-A-Sue and Bechard

  The Government indicated it did not plan to introduce into evidence testimony from the Cayman Islands depositions of either Chan-A-Sue or Bechard and, indeed, did not introduce any of that testimony. See Government Response Brief at 36 n.9. Accordingly, Bertoli's objections with regard to these witnesses, see Bertoli Objections Brief at 15, were moot and were not considered.

  g. Deposition of Meyeroff

  Bertoli's only objection with respect to the testimony of Meyeroff from the First Set of Cayman Islands Depositions was timely made. See Deposition Transcript of David Meyeroff, dated 5 September 1991 (the "Meyeroff Dep. Tr."), 16, lines 12-22 (objecting to page 13, line 11 to end of deposition). For the reasons detailed infra in Appendix D, Bertoli's objection to the specific deposition testimony of Meyeroff was overruled.

  3. Government's Objections to Specific Testimony From the First Set of Cayman Islands Depositions94

  a. Deposition of Coleman

  Of the Government's three objections to specific testimony from the Cayman Islands deposition of Coleman, only one of those objections was made at the time of Coleman's deposition. For this reason, the Government's objection's to the specific deposition testimony of Coleman at page 122, lines 4-11 and at page 125, lines 15-13 were overruled. The Government's objection to the specific testimony of Coleman at page 125, line 24 to page 129, line 25 was timely made and was sustained. See infra Appendix D (containing detailed listing of Government's objections to specific testimony of Coleman from First Set of Cayman Islands Depositions, as well as bases for disposition of those objections).

  b. Deposition of Rodney Bond

  The Government's only objection to testimony from the Cayman Islands deposition of Rodney Bond was not made at the time of Rodney Bond's deposition. For this reason, the Government's objection to the specific testimony of Rodney Bond at page 334, lines 2-5 was overruled. See infra Appendix D (containing detailed listing of Government's objection to specific testimony of Rodney Bond from First Set of Cayman Islands Depositions, as well as bases for disposition of that objection).

  c. Deposition of Duggan

  The Government's only objection to testimony from the Cayman Islands deposition of Duggan was not made at the time of Duggan's deposition. For this reason, the Government's objection to the specific testimony of Duggan at page 50, line 24 to page 51, line 3 was overruled. See infra Appendix D (containing detailed listing of Government's objection to specific testimony of Duggan from First Set of Cayman Islands Depositions, as well as bases for disposition of that objection).

  d. Deposition of Lundie

  The Government's only objection to testimony from the Cayman Islands deposition of Lundie was made at the time of Lundie's deposition and was sustained. See infra Appendix D (containing detailed listing of Government's objection to specific testimony of Lundie from First Set of Cayman Islands Depositions, as well as bases for disposition of that objection).

  4. Bertoli's Objections to Documents From the First Set of Cayman Islands Depositions

  By the 16 October 1992 Order, the parties were directed, inter alia, to brief their objections to the First Set of Cayman Islands Documents by 23 November 1992. The 16 October 1992 Order advised the parties "that this [was] their opportunity to object to any of the First Set of Cayman Islands Documents; failure to object to any of the First Set of Cayman Islands Documents at this time will be considered a waiver and will preclude any future objections." 16 October 1992 Order at 6. *fn95" Initially, Bertoli argued the court abused its discretion by "ordering the defendants to object to documents that may never be offered into evidence by the Government or to waive the constitutional right to object at trial." Bertoli Objections Brief at 3.

  This argument was without merit. The First Set of Cayman Island Documents were admissible into evidence at trial pursuant to 18 U.S.C. § 3505. Section 3505(b) provides:

  

At the arraignment or as soon as practicable thereafter, a party intending to offer into evidence under this section a foreign record of regularly conducted activity shall provide written notice of that intention to each other party. A motion opposing admission in evidence of such records shall be made by the opposing party and determined by the court before trial. Failure to file such a motion before trial shall constitute a waiver of objection of such record or duplicate.

  18 U.S.C. § 3505(b) (emphasis added).

  Section 3505(b) is drafted in mandatory terms, requiring the admissibility of evidence to be introduced pursuant to section 3505 be determined prior to trial. The order requiring Bertoli to object to the First Set of Cayman Islands Documents prior to trial was made pursuant to the mandatory direction of section 3505(b). *fn96" Similarly, by ordering that a failure to make objections would constitute a waiver of any such objections, the express language of section 3505(b) was followed. *fn97"

  "The conduct of trial is left to the broad discretion of the trial judge." Stich v. United States, 730 F.2d 115, 117 (3d Cir.), cert. denied, 469 U.S. 917, 83 L. Ed. 2d 229, 105 S. Ct. 294 (1984); see also Geders v. United States, 425 U.S. 80, 87, 47 L. Ed. 2d 592, 96 S. Ct. 1330 (1976). Rule 104 of the Federal Rules of Evidence permits a court to hold a pretrial hearing to determine "preliminary questions concerning . . . the admissibility of evidence." See Fed. R. Evid. 104(a),(c); see also Advisory Comm. Notes, Fed. R. Evid. 104(c) ("[a] great deal must be left to the discretion of the trial judge who will act as the interests of justice require"); Fed. R. Crim. P. 12(b),(c),(e) (court may decide objections prior to trial).

  In this case, the record demonstrated the need for a decision, prior to trial, on the objections concerning the First Set of Cayman Islands Depositions and Documents. As was explained in a letter, dated 16 October 1992 (the "16 Oct. 1992 Letter"), which accompanied the 16 October 1992 Order:

  

The 24 July [1992] Order *fn98" was issued for purpose of resolving, prior to trial, a number of evidentiary issues which undoubtedly will arise in the course of trying this matter. Because the First Set of Cayman Islands Depositions were completed on 16 September 1991, and because it was clear that the Defendants planned to object to the use of these depositions by the Government, the 24 July Order was particularly aimed at resolving disputes over the admissibility of the First Set of Cayman Islands Depositions, as well as Documents, as soon as possible. These purposes remain relevant.

  

  

The necessity of resolving evidentiary issues concerning the First Set of Cayman Islands Depositions becomes more pressing with the Second Set of Cayman Islands Depositions scheduled to begin on 3 November 1992. Moreover, given the Defendants' history of attempting to block efforts by the Government to obtain evidence -- as demonstrated, for instance, by the Cayman Civil [Action], the . . . Cayman Islands [Ex parte ] Injunction, the objections by Bertoli to the Supplemental Treaty Request -- it was, and still is, anticipated that resolving the Defendants' objections will require a significant amount of time and attention, and is a process best commenced as soon as possible. Finally, the necessity of resolving as many issues as possible prior to trial is highlighted by the Defendants' previous motion practice and requests for discovery. For more than three years, the court has patiently dealt with an onslaught of motions by the Defendants which [as of 16 October 1992] total thirty-two motions, seven letter requests, one thousand two hundred eighty-one pages of motion papers and two thousand three hundred seventeen pages of exhibits. . . .

  

In a similar fashion, Bertoli's requests for discovery have been immense. For instance, in February 1992, Bertoli sent the Government twenty-four subpoenas duces tecum to be issued to such diverse entities as the SEC, the [Defense Department], the United States Department of Commerce, the Central Intelligence Agency, the Internal Revenue Service and the [EPA]. Letter-Opinion, filed 6 May 1992, at 4-5. All totalled, these subpoenas sought information from over two hundred fifty individuals, agencies or corporations and a potentially unlimited number of documents, covering periods of time as long as ten years. Id. at 4-8. Recently, Bertoli sought to from the Clerk of this District fifty trial subpoenas for the trial presently-scheduled for 11 January 1993.

  

Bertoli's pre-trial practices and trial strategy are characterized by co-defendant Cannistraro in his request for a separate trial. As Cannistraro contends in his letter brief, filed 22 September 1992: "The Government states that trial is projected to last two to four months. If Defendant Bertoli was not involved in the trial that estimate might be easily met. With defendant Bertoli involved there is no way that trial could be completed in a four month span. Mr. Bertoli is currently preparing more than 700 defense witnesses. When one looks at a past litigation history of cases involving [Bertoli], one may expect many days of examination for a single witness. A trial with defendant Bertoli could very well surpass the record in this district. Two to four years might be a more reasonable estimate than two to four months." Id. at 2. . . .

  

Put simply, in a case of this magnitude, a court has an obligation to control the proceedings. The size of the task which confronts the court and the parties requires pre-trial efforts to organize the presentation of such a potentially large mass of evidence in the most efficient manner possible. Succinctly stated, a trial court, in a case such as this, must insist upon specificity concerning potential evidence issues before allowing a massive factual controversy to proceed. The directives that follow have been formulated with this in mind and in keeping with the goals originally contemplated by the 24 July Order.

  16 Oct. 1992 Letter at 12-15. Based upon the record in this case, as well as the broad discretion over trial proceedings and the presentation of evidence vested with the trial judge, Bertoli's abuse of discretion argument was without merit. *fn99"

  a. Documents of Greenshields

  Bertoli objected to documents of Greenshields, specifically Government exhibits 2201 ("Exhibit 2201") and 2202 ("Exhibit 2202"), on the ground that Greenshields records custodian Bechard was "not a qualified witness and [could] not be used to authenticate the documents." Bertoli Objections Brief at 17. Bertoli argued Bechard "had no knowledge of the documents, how they were recorded or how they were maintained." Id. According to Bertoli, Bechard "received the documents from Winnipeg, Canada and turned them over to the Cayman authority within days of their receipt in the Cayman Islands." Id. Thus, Bertoli argued Exhibits 2201 and 2202 had failed to meet the authentication requirements of Fed. R. Evid. 901 and the foundation requirements of Fed. R. Evid. 803(6). Bertoli Objections Brief at 17.

  The Government indicated that the documents of Greenshields would not be introduced pursuant to Fed. R. Evid. 803(6), as argued by Bertoli, but rather would be introduced pursuant to 18 U.S.C. § 3505. See Government Response Brief at 118. Because the Greenshields documents satisfied the requirements of admissibility pursuant to 18 U.S.C. § 3505 and were introduced under that provision, Bertoli's objection to the Greenshields documents was rejected.

  As a general matter, the purpose of Congress in enacting section 3505 was "to make foreign kept business records more readily admissible into evidence in criminal trials," H.R. Rep. No. 907, 98th Cong. Sess. 2, reprinted in 1984 U.S.C.C.A.N. 3182, 3578-3580, by creating a "simple, inexpensive substitute for the cumbersome and expensive procedures presently required for the admission of foreign business records." United States v. Strickland, 935 F.2d 822, 830 (7th Cir. 1991), cert. denied sub nom. Moore v. United States, U.S. , 112 S. Ct. 884 (1992). Put simply, "section [3505] was not intended to add technical roadblocks to the admission of foreign records, but, rather, to streamline the admission of such records." *fn100" Id. at 831.

  As an initial matter, there must be timely notice of an intention to submit foreign documents. As discussed, the opposing party must file objections pre-trial, and the court must rule on objections pre-trial. The failure to file a motion or make an objection, absent good cause, constitutes waiver. See 18 U.S.C. § 3505(b); United States v. Hing Shair Chan, 680 F. Supp. 521, 523-524 (E.D.N.Y. 1988).

  In addition to notice, Section 3505 requires a foreign certification. A foreign certification is defined by section 3505(c)(2) as:

  

A written declaration made and signed in a foreign country by the custodian of a foreign record of regularly conducted activity or another qualified person that, if falsely made, would subject the maker to criminal penalty under the laws of that country.

  18 U.S.C. § 3505(c)(2). Foreign records can be "certified" by affidavits or certificates of authenticity, which dispense with the need of calling live witnesses to establish authenticity. Sturman, 951 F.2d at 1489.

  A sworn statement fulfills the demands of section 3505(c)(2). Certification "does not require the use of a 'magic form' upon which the employee/record-provider of foreign company must certify that he is aware that his answers come under penalty of perjury." Strickland, 935 F.2d at 831. A foreign certification serves to authenticate the records, Sturman, 951 F.2d at 1489, so long as specified attestations are met. United States v. Gleave, 786 F. Supp. 258, 277-2781 (W.D.N.Y. 1992), aff'd in part, rev'd in part on other grounds sub nom. United States v. Knoll, 16 F.3d 1313, No. 92-1580, 1994 WL 44128 (2d Cir. 14 Feb. 1994). The specified attestations, in accordance with section 3505(a)(1)(A-D) are as follows:

  

1. Certificates should be signed by a person acting in the capacity of custodian or by a person with knowledge of the matters;

  

2. Certificates should indicate that the records were made or received in the regular course of business;

  

3. Certificates should indicate the records were made as a regular business practice;

  

4. Certificates should indicate records were made or received at the time, or within a reasonable time thereafter, of the recorded event;

  

5. If such record is not an original, such record is a duplicate of the original.

  See Sturman, 951 F.2d at 1489; see also 18 U.S.C. § 3505(a)(1). Only substantial compliance is required to find a proper foreign certification to authenticate the records. *fn101" See 951 F.2d at 1489 (admitting documents upon finding that "these attestations satisfy most of the provisions of [section] 3505").

  Finally, section 3505 "did not change the benchmark question in this and every situation involving the admission of documentary evidence: do the documents bear the indicia of reliability?" Strickland, 935 F.2d at 831. Documents are to be admitted under section 3505(a)(1) unless they are shown to be unreliable. As a general rule, certain types of records are nearly always found to be reliable. For instance, bank records are inherently reliable "because banks depend on keeping accurate records," and will be admitted unless "untrustworthiness" is shown. Miller, 830 F.2d at 1077; Gleave, 786 F. Supp. at 279.

  Reliability has also been established simply by the record custodian's attestation. "Attestation by the record custodian pursuant to [section] 3505(c)(2) that he will be subject to criminal liability for a false certification affords the records sufficient degree of reliability." Gleave, 786 F. Supp. at 279; see also Chan, 680 F. Supp. at 526.

  In Gleave, the defendants were charged with conspiracy, concealment of assets in bankruptcy, money laundering and other offenses. The court dealt directly with the issue of submitting bank records from the Cayman Islands into evidence. The court "took judicial notice of the fact" that the Cayman Islands "is a member of the United Kingdom with business practices like those in the United States" and therefore the records had the requisite indicia of reliability. Gleave, 786 F. Supp. at 279; cf. Chan, 680 F. Supp. at 525 (court, in finding hotel records reliable, stated Hong Kong is a British colony with business practices much like those in the United States).

  In Miller, the court also dealt with documents from the Cayman Islands. In that case, the defendant was convicted of wire fraud and of swindling a recent German immigrant out of an inheritance of more than one million dollars. The court found reliability through the attestations of bank officials, indicating that bank records are independently accurate and are "the most common type of business record routinely used in our courts." 830 F.2d at 1077.

  As previously discussed, see supra note 96, the Government supplied Bertoli with timely notice of its intent to introduce documents pursuant to section 3505. In addition, Bechard, acting as the record custodian of Greenshields, submitted two affidavits certifying the documents under section 3505. See Affidavit of Bechard, sworn to on 4 April 1991 (the "4 April 1991 Bechard Aff.) (attached as Ex. 14 to Government Response Brief); Affidavit of Bechard, sworn to on 28 August 1991 (the "28 Aug. 1991 Bechard Aff.") (also attached as Ex. 14 of Government Response Brief.)

  The Bechard affidavits satisfied the certification requirements of 18 U.S.C. § 3505. First, each affidavit stated that Bechard was Resident Manager of Greenshields and that "as a result of [his] duties and responsibilities [he was] aware of the manner in which the books and records of the Company are kept." See 4 April 1991 Bechard Aff., PP 3-5; 28 Aug. 1991 Bechard Aff., P 1. Second, as to each document of Greenshields, the Bechard affidavits indicated the document (1) was made at or near the time of the occurrence of the matters set forth therein, (2) was made by a person with knowledge of the matters recorded or from information transmitted by persons with such knowledge, (3) was prepared and kept in the course of regularly conducted business and (4) was a duplicate of an original document of Greenshields. See 4 April 1991 Bechard Aff., PP 6-9, 12-15; 28 Aug. 1991 Bechard Aff., PP 4-5, 8-11; see Sturman, 951 F.2d at 1489; 18 U.S.C. § 3505(a)(1).

  The reliability of the Greenshields documents was established by the record custodian's attestation. See Gleave, 786 F. Supp. at 279; see also Chan, 680 F. Supp. at 526. In fact, not only did the Bechard affidavits further state that it was the "regular practice" of Greenshields "to check the correctness of" and "to rely on" records of the kind being certified, see 4 April 1991 Bechard Aff., PP 10-11; 28 Aug. 1991 Bechard Aff., PP 6-7, but case law indicates a presumption of reliability surrounds bank documents in general and Cayman Islands bank documents in particular. *fn102" See Miller, 830 F.2d at 1077; Gleave, 786 F. Supp. at 279.

  Accordingly, the Greenshields documents satisfied the requirements of 18 U.S.C. § 3505 and were admitted into evidence. See Trial Transcript at 3223-24.

  b. Documents From the Coleman Deposition

  Bertoli objected to a number of documents introduced during Coleman's deposition which the Government described as "about 30 pages of handwritten notes contained in the Paget-Brown document production." Government Response Brief at 109; see also Bertoli Objections Brief at 17-18. These documents were divided as follows: (1) Document SJC 14 ("Document 14"), pages 2491-2515; (2) Document SJC 1.1 ("Document 1.1"), pages 095-096; (3) Document SJC 2.1 ("Document 2.1"), page 270; (4) Document SJC 3.1A ("Document 3.1A"), page 544; and (5) Document SJC 5.1 ("Document 5.1"), page 980. See Bertoli Objections Brief at 18-19.

  With regard to Document 2.1, Document 3.1A and Document 5.1, Bertoli's objection was moot because the Government indicated it would not -- and in fact did not -- offer these documents into evidence. See Government Response Brief at 130. The objections to the other two documents was overruled for the following reasons.

  Document 14 was admissible pursuant to 18 U.S.C. § 3505. *fn103" Document 14 was accompanied a certification of Coleman which satisfied the requirements of section 3505. See Further Supplemental Affidavit of Coleman, sworn to 10 Jan. 1992 (the "10 Jan. 1992 Coleman Aff."). The 10 Jan. 1992 Coleman Aff. stated that Document 14(1) consisted of notes made by Coleman himself based upon information received as Chief Executive Officer of Paget Brown, thereby satisfying the personal knowledge requirement of section 3505, (2) was made in the regular course of Paget Brown's business and were obtained from Paget Brown's archives, (3) was made by Coleman as part of his ordinary practice of making file notes and (4) was copied from original Paget Brown documents. See 10 Jan. 1992 Coleman Aff., PP 2-4; see also 18 U.S.C. § 3505(a)(1).

  The 10 Jan. 1992 Coleman Aff. stated Document 14 "was not made contemporaneous with the underlying events but [was] a short history of the matters contained therein made by [Coleman] in late 1989." 10 Jan. 1992 Coleman Aff., P 6. This statement, however, did not defeat the 10 Jan. 1992 Coleman Aff. as a valid certification pursuant to 18 U.S.C. § 3505(a)(1). First, the 10 Jan. 1992 Coleman Aff. substantially complied with the requirements of section 3505, which was all that was required. *fn104" See Sturman, 951 F.2d at 1489. Second, the documents of Paget Brown underlying the 10 Jan. 1992 Coleman Aff. were independently reliable. See Strickland, 935 F.2d at 830-31. Not only did the documents benefit from the presumption of validity previously discussed, *fn105" but the testimony of Coleman during the First Set of Cayman Islands Depositions corroborated the substance of those notes. See, e.g., Coleman Dep. Tr. at 86-87, 92-98, 125, 129 (corresponding to pages 2491-96 of Document 14). Accordingly, Document 14 was admitted pursuant to 18 U.S.C. § 3505 and Bertoli's objection was overruled. *fn106"

  Document 1.1 was also admitted pursuant to 18 U.S.C. § 3505. *fn107" Like Document 14, Document 1.1 was supported by the 10 Jan. 1992 Coleman Aff. which, as already discussed, satisfied the requirements of section 3505(a)(1)(A)-(C). Moreover, there was no question Document 1.1 satisfied the requirement of section 3505(a)(1)(D) that the document be made "near" the time of the occurrence set forth in the document. See 18 U.S.C. § 3505(a)(1)(D). As Bertoli conceded, Document 1.1 was written on 14 February 1990, little more than two weeks after the occurrence of the events discussed in the document. See Bertoli Objections Brief at 18. Similarly, there was no question that Document 1.1 was reliable. *fn108"

  c. Documents of Euro Bank

  Bertoli objected to three Euro Bank documents referred to during Rodney Bond's deposition: Government exhibits 2453(aa) ("Exhibit 2453(aa)"), 2453(y) ("Exhibit 2453(y)") and Exhibit 2500. See Bertoli Objections Brief at 19. Bertoli's objection to the first two documents was as follows:

  

Rodney Bond testified at page 119/121 and page 230/231 that without the underlying documentation, there [was] no way of determining what the debits and credits relate to on the statements, and exhibit 2453(aa) and 2453(y) would not be admitted.

  Id.

  Bertoli's objection was meritless; the documents were admitted pursuant to 18 U.S.C. § 3505. The documents were certified by an affidavit submitted by Ivan Burgess ("Burgess"), the records custodian of Euro Bank, which affidavit complied with the requirements of section 3505(a)(1). See Affidavit of Burgess, dated 2 September 1991 (the "2 Sept. 1991 Burgess Aff.") (attached as Ex. 18 to Government Response Brief).

  The 2 Sept. 1991 Burgess Aff. stated that Burgess had knowledge of the manner in which the books and records of Euro Bank were kept as a result of his "duties and responsibilities" at Euro Bank, and that the documents in question (1) were made at or near the time of the occurrences set forth therein, (2) were prepared by persons with knowledge of the matters recorded or from information transmitted by persons with such knowledge and (3) were kept in the regular course of business and these types of records were made as a regular business practice. *fn109" See 2 Sept. 1991 Burgess Aff., PP 9-10, 13-16; see also 18 U.S.C. § 3505(a)(1).

   Regarding reliability, the Euro Bank documents enjoyed a presumption of reliability given they were the documents of a Cayman Islands bank. See Gleave, 786 F. Supp. at 279; Miller, 830 F.2d at 1077. In addition, the 2 Sept. 1991 Burgess Aff. stated that "it was the regular practice of [Euro] Bank to check the correctness of" and to "rely on" the types of documents certified. See id., PP 11-12. Finally, the reliability of these documents was further supported by the fact that Rodney Bond, during his deposition, recognized and identified these documents as original Euro Bank documents. See Rodney Bond Dep. Tr. at 182-83.

  Accordingly, Exhibits 2453(y) and 2453(aa) were admitted pursuant to 18 U.S.C. § 3505. As the Government argued, see Government Response Brief at 121, Bertoli's objection regarding the lack of underlying documentation to explain the contents of these exhibits was a comment on the weight to be given to the documents, rather than an objection to their admissibility.

  Bertoli also objected to Exhibit 2500 on the grounds that its contents were unreliable and no proper foundation was laid prior to the introduction of the document. See Bertoli Objections Brief at 19. This objection was rejected. See supra note 89.

  5. Government's Objections to Documents from the First Set of Cayman Islands Depositions

  The Government made numerous objections to documents from the First Set of Cayman Islands Depositions. See Government Objections Brief at 4-53. Those objections and the resolutions thereof were as follows:

  First, the Government objected to three documents related to Isaacson on the ground that, if the documents were offered by Bertoli for the truth of the matters asserted therein, the documents would constitute inadmissible hearsay. These documents were marked 2541(b-d) (the "2541 Documents"). See Government Objection Brief at 4, 12, 17, Exs. 1(b), 2.

  The Government's objections to the 2541 Documents were sustained on the ground asserted by the Government. See 28 May 1993 Tr. at 28. The documents failed to satisfy either the requirements of Fed. R. Evid. 803(6) or 18 U.S.C. § 3505. *fn110" See United States v. Pelullo, 964 F.2d 193, 200 (3d Cir. 1992) (setting forth requirements for admission under Fed. R. Evid. 803(6)). The certification of these documents, see Government Objections Brief, Ex.1(a), did not fulfill the requirements of section 3505 and significant questions of reliability existed. See supra, at 114-115 (setting forth attestations required for admission under 18 U.S.C. § 3505).

  The Government also objected to several documents provided by Bertoli to Rodney Bond during Rodney Bond's deposition on the ground that, if the documents were offered by Bertoli for the truth of the matters asserted therein, the documents would constitute inadmissible hearsay. See Government Objections Brief at 19-37. These documents were marked RB Exhibits 4-13 (the "RB Exhibits"). See Rodney Bond Dep. Tr. at 308-11. The Government also objected to the RB Exhibits on the ground of relevance. See Government Objections Brief at 91-37.

  The objections to the RB Exhibits were sustained. See 28 May 1993 Tr. at 28. These documents failed to satisfy the requirements of Fed. R. Evid. 803(6). See Pelullo, 964 F.2d at 200. The only person who testified regarding these documents was Rodney Bond; Rodney Bond's testimony did not satisfy the authentication requirements of Rule 803(6). See Rodney Bond Dep. Tr. at 308-11.

  The Government also objected to a six page document of handwritten notes of Coleman regarding a meeting Coleman had with Bertoli on 25 October 1989. See Government Objections Brief, Ex. 14. Much of these notes was a summary of statements made by Bertoli to Coleman. See id. Although the Government conceded these notes were admissible pursuant to 18 U.S.C. § 3505, to the extent those notes summarized statements made by Bertoli, those statements constituted hearsay within hearsay and were inadmissible pursuant to Fed. R. Evid. 801(c). See Government Objections Brief at 39-41. Moreover, the Government objected on the ground of relevance. Id.

  Although the court was initially inclined to reserve ruling on this objection until trial, Bertoli conceded the document should not be admitted into evidence. See Bertoli Supp. Objections Brief at 3. Accordingly, the Government's objection was sustained. See 28 May 1993 Tr. at 28.

  The Government further objected to a copy of a letter, dated 24 February 1988, to Coleman at Paget-Brown. See Government Objections Brief, Ex. 15. The Government objected to introduction of this document on the ground that, if offered for truth of the matter asserted, it constituted inadmissible hearsay. See Government Objections Brief at 45.

  Although the court was initially inclined to reserve ruling on this objection until trial, Bertoli conceded the document should not be admitted into evidence. See Bertoli Supp. Objections Brief at 3. Accordingly, the Government's objection to this document was sustained. See 28 May 1993 Tr. at 28.

  The Government also objected to a letter from Bertoli to Coleman, dated 13 April 1990, a letter from Cannistraro to Paget-Brown, dated 22 September 1987, an undated document entitled "Affidavit in Contemplation of Death," purportedly signed by Isaacson and produced by Paget-Brown and an undated document appearing to be a Paget-Brown file note summarizing discussions with Bertoli regarding George Town. See Government Objections Brief, Exs. 16, 17, 24, 25. The Government objected to introduction of these documents on the ground that, if offered for truth of the matter asserted, they constituted inadmissible hearsay. See Government Objections Brief at 2, 4, 49, 51. Although a decision on these objections was reserved for trial, see 28 May 1993 Tr. at 28, these documents were not offered at trial.

  C. Objections to the Second Set of Cayman Islands Depositions Testimony and Documents111

  1. Bertoli's Objections to Specific Testimony From the Second Set of Cayman Islands Depositions -- Deposition of Ebanks

  Of Bertoli's two objections to specific testimony from the Cayman Islands deposition of Ebanks, only one of these objections was made at the time of Ebanks' deposition. For this and other reasons specified infra in Appendix E, Bertoli's objections to the specific testimony of Ebanks at page 85, line 21 to page 87, line 6 and at page 98, lines 17-19 of his deposition were overruled. Bertoli's objection to the specific testimony of Ebanks at page 98, lines 22-23 of his deposition was timely made and was sustained. *fn112" See infra Appendix E (containing detailed listing of Bertoli's objections to specific testimony of Ebanks from Second Set of Cayman Islands Depositions, as well as bases for disposition of those objections).

  2. Government's Objections to Specific Testimony From the Second Set of Cayman Islands Depositions

  a. Deposition of Ebanks

  Of the Government's nine objections to specific testimony from the Cayman Islands deposition of Ebanks, the majority were not made at the time of Ebanks' deposition. For this and other reasons specified infra in Appendix E, the Government's objections to the specific testimony of Ebanks were largely overruled. The following objections were timely-made and were sustained: Testimony at page 63, line 21 to page 64, line 15; testimony at page 159, line 10. See infra Appendix E (containing detailed listing of Government's objections to specific testimony of Ebanks from Second Set of Cayman Islands Depositions, as well as bases for disposition of those objections).

  b. Deposition of Burgess

  Of the Government's nineteen objections to specific testimony from the Cayman Islands deposition of Burgess, fourteen of these objections were made at the time of the Burgess deposition. Several of the objections to specific testimony of Burgess were timely made and were sustained; *fn113" the Government's other objections to the specific testimony of Burgess were overruled. See infra Appendix E (containing detailed listing of Government's objections to specific testimony of Burgess from Second Set of Cayman Islands Depositions, as well as bases for disposition of those objections).

  c. Deposition of Rodney Bond

  Each of the Government's fifty-six objections to specific testimony from the second Cayman Islands deposition of Rodney Bond was made at the time of Rodney Bond's deposition. Several of the objections to the specific testimony of Rodney Bond were sustained; *fn114" the Government's other objections to the specific testimony of Rodney Bond were overruled. See infra Appendix E (containing detailed listing of Government's objections to specific testimony of Rodney Bond from Second Set of Cayman Islands Depositions, as well as bases for disposition of those objections).

  D. Pre-Trial and Trial Motions and Objections by Bertoli

  1. Motion to Sequester Government Witnesses

  On 29 March 1993, Bertoli moved to sequester all trial witnesses (the "Motion to Sequester") pursuant to Fed. R. Evid. 615, "with the exception of the Government's chief investigating agent" who Bertoli recognized could remain in the courtroom throughout the proceedings. *fn115" See 29 March 1993 Sequestration Brief at 1 (citing United States v. Parodi, 703 F.2d 768, 773 (4th Cir. 1983)).

  In response, the Government argued that ruling on the Motion to Sequester should be deferred until the start of trial so that it could determine which, if any, agents who were potential witnesses were needed to assist at trial. See 2 April 1993 Government Sequestration Brief at 1. The Government also argued that, pursuant to United States v. Mohney, 949 F.2d 1397 (6th Cir. 1991), cert. denied, U.S. , 112 S. Ct. 1940, 118 L. Ed. 2d 546 (1992) and United States v. Strauss, 473 F.2d 1262 (3d Cir. 1973), the Government's summary witnesses need not be sequestered. See 2 April 1993 Government Sequestration Brief at 1.

  In responding to the 2 April 1993 Government Sequestration Brief, Bertoli stated: "This defendant is in agreement that the Government's agents and investigators, who are potential witnesses, not be sequestered until the trial commences." 8 April 1993 Sequestration Brief at 1. Nevertheless, Bertoli opposed delay of an order for sequestration. See id. Bertoli insisted that summary witnesses should be sequestered. See id. ; see also 29 April 1993 Sequestration Brief at 1-3.

  On 13 May 1992, the Government responded to Bertoli's 8 April 1993 Sequestration Brief and 29 April 1993 Sequestration Brief by maintaining that summary witnesses need not be sequestered. See 13 May 1993 Government Sequestration Brief at 1. Moreover, the Government indicated it did not intend to use agents as witnesses at trial, and therefore the sequestration of agents need not occur. Id.

  At the 27 April 1993 Hearing, the Motion for Sequestration was denied insofar as Bertoli requested immediate sequestration to occur. See 27 April 1993 Tr. at 3. It was indicated, however, that sequestration would occur at the time of trial. See id. Sequestration as to summary witnesses was denied. See 27 April 1993 Tr. at 7-8.

  Fed. R. Evid. 615 provides:

  

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's case.

  Id.

  Absent a showing of prejudice under Rule 615(3), the Government is ordinarily entitled to the presence of one Government agent in the courtroom. See, e.g., United States v. Pulley, 922 F.2d 1283, 1286-87, reh'g denied en banc, 1991 U.S. App. LEXIS 5144 (6th Cir.), cert. denied, U.S. , 112 S. Ct. 67, 116 L. ed. 2d 42 (1991); United States v. Kosko, 870 F.2d 162, 164 (4th Cir.), cert. denied, 491 U.S. 909, 105 L. Ed. 2d 704, 109 S. Ct. 3197 (1989); United States v. Farnham, 791 F.2d 331, 334 (4th Cir. 1986); see also United States v. Alvarado, 647 F.2d 537, 540 (5th Cir. 1981) (Rule 615 authorizes presence of more than one agent in courtroom).

  It is also established, in this Circuit and elsewhere, that summary witnesses need not be sequestered. See Mohney, 949 F.2d at 1404-05; Strauss, 473 F.2d at 1263. As the Circuit recognized twenty years ago in Strauss :

  

The purpose for sequestering a witness is "to prevent the shaping of testimony by witnesses to match that given by other witnesses." United States v. Cozzetti, 441 F.2d 344, 350 (9th Cir. 1971). Since [the witness'] testimony related only the summary of records . . . and did not depend upon any prior testimony, even the rationale for . . . sequestration . . . was absent in this case.

  473 F.2d at 1263.

  Similarly, the court in Mohney recognized:

  

"The presence of an expert witness who does not testify to the facts of the case but rather gives his opinion based upon the testimony of others hardly seems suspect and will in most cases be beneficial, for he will be more likely to base his expert opinion on a more accurate understanding of the testimony as it evolves before the jury."

  949 F.2d at 1404 (quoting Morvant v. Construction Aggregates Corp., 570 F.2d 626, 629-30 (6th Cir.), cert. dismissed, 439 U.S. 801, 99 S. Ct. 44, 58 L. Ed. 2d 94 (1978)); accord Kosko, 870 F.2d at 164. The Mohney court concluded that such witnesses were "essential" witnesses pursuant to Rule 615(3) and, therefore, were able to avoid sequestration. 949 F.2d at 1405. Like experts, summary witnesses do not testify to the facts of the case, but rather testify "based on the testimony of others." Id. at 1404.

  In this case, the Government represented that the summary witness, Loreto Fuentes ("Fuentes"), *fn116" would be used to introduce summary charts at trial and would not be testifying as to facts known independently or based upon her own perception. See 13 May 1993 Government Sequestration Brief at 1; 27 May 1993 Tr. at 7. Based upon this representation *fn117" and the case law discussed herein, the Motion to Sequester summary witnesses was denied. See 27 May 1993 Tr. at 7-8.

  2. Motion to Suppress Use of Cayman Islands Documents By the Government Pursuant to 18 U.S.C. § 3505

  On 5 April 1993, Bertoli again moved to suppress documents received by the Government from the Cayman Islands (the "Motion to Suppress Cayman Documents"). *fn118" See 5 April 1993 Letter at 1-2. Specifically, without a single citation, Bertoli objected to the introduction of all records of Butterfield, Royal Bank, Swiss Bank and Greenshields "on the grounds that the alleged custodians of the records specifically stated they had no personal knowledge of the documents, and the alleged Butterfield custodian stated he had no knowledge of the accounting system which produced the records." Id. at 2.

  On 13 April 1993, the Government responded to the Motion to Suppress Cayman Documents. See 13 April 1993 Government Brief at 1-3. The Government first argued that, with the exception of certain Cayman Islands documents then recently received by the Government, Bertoli had all other Cayman Islands documents no later than early 1992. *fn119" Id. at 1. Accordingly, the Government argued that, pursuant to the 16 Oct. 1992 Order and the 7 Dec. 1992 Order, Bertoli had waived any objections to the First Set of Cayman Islands Documents not previously made. See 13 April 1993 Government Brief at 1-2. With regard to new documents received by the Government from the Cayman Islands, the Government argued it had obtained appropriate certifications to introduce those documents pursuant to 18 U.S.C. § 3505. Id. at 2-3.

  At the Final Pre-trial Conference, the Motion to Suppress Cayman Documents was denied, subject to the Government establishing at trial the requirements for admissibility under 18 U.S.C. § 3505 for any Cayman Islands documents it intended to offer into evidence. *fn120" See 28 May 1993 Tr. at 29-35. All Cayman Islands documents admitted into evidence satisfied the requirements of section 3505(a)(1).

  3. Motion to Turn Over Personnel Files of Government Witnesses and Agents121

  By letter to the Government, dated 27 January 1992, Bertoli requested that the Government turn over to him "all personnel files for all employees of the Government expected to testify at trial." See Government Personnel Files Brief at 2. In March 1993, Bertoli requested that the court order the Government to provide him with the personnel file of the Government witness who would testify with regard to summary charts. *fn122" See 19 March 1993 Letter at 1. Bertoli failed to cite the specific grounds for his request, although he indicated his request was based upon Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). See 23 April 1993 Letter Brief at 1-2. By letter from the court, dated 7 May 1993, the Personnel Files Motion was denied.

  A defendant has no absolute right to the personnel files of Government employees who will testify. For instance, in United States v. Lafayette, 299 U.S. App. D.C. 288, 983 F.2d 1102 (D.C. Cir. 1993), the court made it clear that there must be a reason or specific purpose behind the request for personnel files of the opposing party or such a request will be denied. Id. at 1104. The Lafayette court stated: "We are especially unconvinced by appellants' argument as to these two officers, as nothing in appellants' brief informs us why they have any reason to believe that the personnel files would provide any useful evidence whatsoever." Id. at 1106; see also Stabilus, Div. of Fichtel & Sachs Industr. v. Haynsworth, Baldwin, Johnson & Greaves, P.A., 144 F.R.D. 258, 267 (E.D.Pa. 1992) (rejecting request for personnel files as "overly broad and unduly burdensome").

  Similarly, in United States v. Driscoll, 970 F.2d 1472 (6th Cir. 1992), cert. denied, U.S. , 113 S. Ct. 1056, 122 L. Ed. 2d 362 (1993), the defendant attempted to acquire personnel files of an officer testifying against him, in an effort to cast doubt on the officer's credibility. Although the defendant relied upon Brady for his request, the Driscoll court rejected the request for personnel files because the defendant offered no support for his contention that the personnel files he sought might contain information important to his case. The Driscoll court stated: "The Supreme Court has made clear that the Brady rule is not an evidentiary rule which grants broad discovery powers to a defendant and that 'there is no general constitutional right to discovery in a criminal case.'" 970 F.2d at 1482 (quoting United States v. Todd, 920 F.2d 399, 405 (6th Cir. 1990) (quoting Weatherford v. Bursey, 429 U.S. 545, 559, 51 L. Ed. 2d 30, 97 S. Ct. 837 (1977)))).

  Similar results were reached in United States v. Andrus, 775 F.2d 825, 843 (7th Cir. 1985) (defendant was "not entitled to the personnel files of the law enforcement witnesses without even a hint that impeaching material was contained therein"), and in United States v. Navarro, 737 F.2d 625, 631-32 (7th Cir.), cert. denied sub nom., Mugercia v. United States, 469 U.S. 1020, 83 L. Ed. 2d 364, 105 S. Ct. 438 (1984) (it is not enough for defendant to argue that personnel file "might" contain Brady material, particularly when defendant "offered nothing to rebut the Government's explicit representation" that no Brady material existed).

  In United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), cert. denied, U.S. , 112 S. Ct. 1588, 118 L. Ed. 2d 306 (1992), the Ninth Circuit rejected the approach which requires a defendant, in the first instance, to make a showing of materiality with regard to the information contained in the files. See id. at 31. Rather, the Henthorn court stated:

  

The Government has a duty to examine personnel files upon a defendant's request for their production. Absent such an examination, it cannot ordinarily determine whether it is obligated to turn over the files. . . . The obligation to examine the files arises by virtue of the making of a demand for their production. However, following that examination, the files need not be furnished to the defendant or the court unless they contain information that is or may be material to the defendant's case.

  Id.

  In response to Henthorn, the Department of Justice developed a policy regarding the review of personnel files. This policy was explained and upheld in United States v. Jennings, 960 F.2d 1488 (9th Cir. 1992):

  

Counsel for the Government informs us that the Department of Justice has instituted a policy designed to implement the holding of Henthorn. Under this policy, the files of law enforcement officers are to be examined by the appropriate agency's attorney or his [or her] staff. The agency legal staff will notify the Federal prosecutor assigned to the case if any potential Brady material is found, and the [Assistant United States Attorney (the "AUSA")] will then determine whether the information should be disclosed or whether an in camera review by the district court is appropriate.

  Id. at 1492 n.2. The Jennings court concluded that "adherence to this procedure would indicate that the AUSA is fulfilling his [or her] responsibility for ensuring Government compliance with Brady." *fn123" Id. at 1492; see also United States v. Brooks, 296 U.S. App. D.C. 219, 966 F.2d 1500, 1504-05 (D.C.Cir. 1992) (review of police department files by police department itself or by AUSA was sufficient and no in camera review was required); *fn124" cf. Pennsylvania v. Ritchie, 480 U.S. 39, 59, 94 L. Ed. 2d 40, 107 S. Ct. 989 (1987) (when general request for Brady material made, "the State decides which information must be disclosed).

  In this case, the Personnel Files Motion failed under either line of cases. As an initial matter, Bertoli's request for personnel files was overly broad in that it failed to identify either specific witnesses or specific exculpatory or impeachment evidence which Bertoli believed would be contained in those files. Lafayette, 983 F.2d at 1104-06; Driscoll, 970 F.2d at 1482; Stabilus, 144 F.R.D. at 267. Bertoli was not entitled to the personnel files of the law enforcement witnesses "without [providing] even a hint that impeaching material was contained therein." Andrus, 775 F.2d at 843; see also Lafayette, 983 F.2d at 1104-06; Navarro, 737 F.2d at 631-32.

  Even applying the approach of the Ninth Circuit in Henthorn, the Government represented at the time of the Personnel Files Motion that it had followed the procedure described and adopted in Jennings and Brooks. See Government Personnel Files Brief at 5. The Government stated:

  

The Government is complying with, and will continue to comply with, the Department of Justice's Henthorn policy concerning the personnel files of all Government agents and all present or former Government employees expected to testify at trial. Thus far, the U.S. Attorney's offices has been notified by the appropriate Federal agencies that no Brady material has been found in the personnel files of any of the Government agents or present or former employees expected to testify at trial. The U.S. Attorney's Office has also been notified by the appropriate agency that no Brady material has been found in the personnel file of the witness who will testify about the summary charts.

  Id. at 6.

  In accordance with Jennings and Brooks, and particularly given Bertoli's failure to identify any specific exculpatory material which might have been found in the requested personnel files, these representations were accepted and the Personnel Files Motion was denied. *fn125" See Jennings, 960 F.2d at 1492 & n.2; Brooks, 966 F.2d at 1504-05; Ritchie, 480 U.S. at 59 (when general request for Brady material made, "the State decides which information must be disclosed).

  4. Motion to Suppress or, in the Alternative, to Obtain Letters of Request to Take the Testimony of Euro Bank Personnel Ebanks and Burgess

  On 12 May 1993, Bertoli moved to suppress certain documents received from the Cayman Islands pursuant to what Bertoli described as "an unnoticed and unauthorized [MLA] Treaty request." *fn126" See 12 May 1992 Letter Brief at 1. According to Bertoli:

  

The Government, without requesting leave of the Court or noticing this defendant, made an MLA [Treaty] request for documents of Seuro Ltd., Nugco Ltd., and other documentation. None of the foregoing companies were mentioned in the original letter of request by this Court. . . .

  Id.

  Bertoli argued that he attempted to question Burgess regarding this information during the Second Set of Cayman Islands Depositions, but was prohibited by the hearing officer from doing so. Id. at 2. Bertoli further argued:

  

This was clearly unfair discovery under the guise of the MLA [Treaty] and the documents should not be admitted under 18 U.S.C. § 3505 because this defendant was denied his confrontational [sic ] rights under the Sixth Amendment.

  Id. Bertoli requested that, if the documents were admitted into evidence, "the Court issue a letter of request to the Cayman Islands" to allow Bertoli to re-depose Burgess and Ebanks regarding the documents in question. Id.

  Bertoli's objections were without merit. As an initial matter, the documents to which Bertoli objected were responsive to the MLA Treaty Request of 4 April 1990 or the Supplemental Treaty Request of 25 October 1991. See 21 May 1993 Government Letter Brief at 2. As described above, these documents were seized by the Cayman Islands police after Euro Bank had failed to produce the documents as required by the treaty requests. See id.

  As previously discussed, these documents were properly admitted pursuant to 18 U.S.C. § 3505. Moreover, Bertoli's argument regarding the Confrontation Clause was without merit because (1) as Bertoli conceded, there is nothing "under [section] 3505 or any case interpreting [section] 3505 which requires notice to [him] or the ability for [him] to confront the witness in order to have these documents admitted under [section] 3505," 28 May 1993 Tr. at 34, and (2) the right to confrontation is not violated by the admission of documents pursuant to 18 U.S.C. § 3505. Accordingly, Bertoli was not entitled to suppression of the Cayman Islands documents to which he objected or to issuance of a supplemental treaty request for the purpose of re-deposing Burgess and Ebanks regarding those documents. *fn127" This motion was denied on 28 May 1993. See 28 May 1993 Tr. at 35.

  5. Objection to Reading of Redacted Second Superseding Indictment to Jury

  Bertoli objected to the reading of the Redacted Second Superseding Indictment to the jury pool prior to jury selection. See Letter from Bertoli to court, dated 26 April 1993; 27 April 1993 Tr. at 28-30. According to Bertoli, reading of the Redacted Second Superseding Indictment would have had the effect of "pregrooming" the jury with the Government's version of the case. *fn128"

  A court has broad discretion in determining how best to conduct voir dire. Rosales-Lopez v. United States, 451 U.S. 182, 189, 68 L. Ed. 2d 22, 101 S. Ct. 1629 (1981); Ristaino v. Ross, 424 U.S. 589, 594, 47 L. Ed. 2d 258, 96 S. Ct. 1017 (1976); United States v. De Peri, 778 F.2d 963, 971-72 (3d Cir. 1985), cert. denied sub nom., Pecic v. United States, 475 U.S. 1110, 89 L. Ed. 2d 916, 106 S. Ct. 1518 (1986); see also United States v. Guy, 924 F.2d 702, 708 (7th Cir. 1991). In exercising this discretion, a trial court must keep in mind that the purpose of voir dire is to ensure that the defendant will have an impartial jury. See Guy, 924 F.2d at 707; United States v. Boise, 916 F.2d 497, 504 (9th Cir. 1990), cert. denied, 500 U.S. 934, 111 S. Ct. 2057, 114 L. Ed. 2d 462 (1991). Indeed, as one court has stated: "The trial court has the duty in a criminal case to properly voir dire prospective jurors to ensure the Sixth Amendment guarantee of an impartial jury is met." United States v. Frank, 901 F.2d 846, 848 (10th Cir. 1990).

  In this case, the purpose of reading the Redacted Second Superseding Indictment to prospective jurors was to determine whether they had any opinions concerning the allegations and charges, whether they knew anything about the case prior to its inception, and whether they had formed any opinions based on that knowledge. See 27 April 1993 Tr. at 30. In keeping with this purpose, the prospective jurors, after having the Redacted Second Superseding Indictment read to them, were instructed as follows: "I point out to you that the indictment is not evidence of guilt of the defendant." Trial Transcript at 76. As well, the entire panel was instructed, before the proposed members were questioned, as to the purpose of an indictment. *fn129" See id. This instruction was repeated during the charge to the jury. See id. at 6729.

  Bertoli's argument that the jury should have been kept in the dark concerning the allegations and charges of the Redacted Second Superseding Indictment was without merit. As an initial matter, the reading of an indictment to prospective jurors during voir dire is appropriate. See, e.g., United States v. Blevins, No. 91-10437, 1992 U.S. App. LEXIS 22898, at *2 (9th Cir. 16 Sept. 1992); United States v. Dickens, 695 F.2d 765, 774 (3d Cir. 1982), cert. denied sub nom., Conerly v. United States, 460 U.S. 1092, 76 L. Ed. 2d 359, 103 S. Ct. 1792 (1983); United States v. Corbett, 518 F.2d 113, 116 (8th Cir. 1975). In addition, not only was the Redacted Second Superseding Indictment read for the purposes of ensuring Bertoli's right to an impartial jury *fn130" but, contrary to Bertoli's suggestion, "it is not required . . . that jurors be totally ignorant of the facts and issues involved in a case." United States v. Bakker, 925 F.2d 728, 734 (4th Cir. 1991) (citing Irvin v. Dowd, 366 U.S. 717, 722-23, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961)); See United States v. Peete, 919 F.2d 1168, 1178 (6th Cir. 1990); United States v. Bates, 852 F.2d 212, 219 (7th Cir. 1988).

  Even when a prospective juror has a pre-conceived notion of guilt or innocence, and even when prospective jurors have been subject to influences more prejudicial than the mere reading of an indictment, exclusion of those jurors is not required. So long as a juror can lay aside his or her impression or opinion and render a verdict based one the evidence presented in court, a defendant is not prejudiced by inclusion of such a juror. Dobbert v. Florida, 432 U.S. 282, 302, 53 L. Ed. 2d 344, 97 S. Ct. 2290, reh'g denied, 434 U.S. 882, 54 L. Ed. 2d 166, 98 S. Ct. 246 (1977); Murphy v. Florida, 421 U.S. 794, 800, 44 L. Ed. 2d 589, 95 S. Ct. 2031 (1975); Irvin, 366 U.S. at 722-23; see, e.g., Bakker, 925 F.2d at 734 (not error to empanel jurors aware of high pretrial negative publicity surrounding case); Peete, 919 F.2d at 1177-78 (same); Lincoln v. Sunn, 807 F.2d 805, 815 (9th Cir. 1987) (same); De Peri, 778 F.2d at 972 (3d Cir.) (same).

  Accordingly, to the extent reading the Redacted Second Superseding Indictment had any affect on prospective jurors, that affect could only be characterized as minimal and caused no prejudice to Bertoli. Moreover, during voir dire, each prospective juror was asked forty-three detailed questions to test prejudice, including:

  

Number 1 . . . Do you know anything about this case or have you heard anything about the case?

  

Number 32, is there anything about the nature of the charges concerning the defendant which would prevent you from rendering a fair and impartial verdict?

  

Number 37, do you have any prejudice against the defendant merely because he is named as a defendant?

  

Number 39, after hearing all of the evidence presented, you must make findings of fact based only upon the evidence presented to you during the course of this trail. As well, you must accept and apply the law as I instruct you regardless of what you think the law is or should be. Is there anyone among you who cannot do this?

  

Number 40, do any of you disagree with the components of a fair trial I mentioned to you a few moments ago?

  

Number 41, if you were the defendant on trial here today or his standby counsel or the Assistant United States Attorney charged with the responsibility of prosecuting this case, do you know of any reason why you would not be content to have your case tried by somebody in your present frame of mind?

  

Number 43, is there any reason, aside from the questions I've already asked, which would cause you to feel you would rather not sit on this particular case?

  Trial Transcript at 78-85.

  Each juror empaneled answered these questions in the negative and indicated he or she could be fair and impartial and base a decision only upon the facts of the case. See id. at 85-166, 167-95, 197-260. The reading of the Redacted Second Superseding Indictment was neither improper nor prejudicial.

  6. Motion to Question Eisenberg Regarding Charges Pending Against Him When He Pleaded Guilty

  During trial, by letter, dated 2 July 1993 (the "2 July 1993 Letter"), Bertoli objected to alleged limitations on his cross examination of Eisenberg. Bertoli stated:

  

By this letter the undersigned respectfully reasserts his entitlement to question Leo Eisenberg regarding the charges which were pending against him when he pleaded guilty.

  2 July 1993 Letter at 1. After conceding that "Eisenberg has provided the most significant and inculpatory testimony in this case thus far," id., Bertoli further stated:

  

Given the importance of Eisenberg's testimony, the court can surely understand the overriding importance of cross-examination. One of the most important areas of cross is Eisenberg's fear that the charges pending against him when he pleaded guilty would have likely resulted in a conviction at trial and lengthy prison sentence. To pursue this area of cross, [Bertoli] must, of course, establish Eisenberg understood the charges he was facing. This sort of cross is entirely unremarkable and unquestionably appropriate.

  

The court's refusal to permit the requested cross examination has closed off an area of inquiry which is critical to the defense of this case. Should the court deny this application, [Bertoli] requests that a mistrial be declared.

  Id. at 1.

  Not only did the 2 July 1993 Letter fail to cite any legal authority to support the right to cross examination professed by Bertoli, it did not include any citation to the Trial Transcript indicating Bertoli had been denied the opportunity to cross examine Eisenberg with regard to the charges pending against Eisenberg at the time of his guilty plea. *fn131" In fact, a review of the Trial Transcript indicates that at no time was Bertoli cut off or limited in his cross examination of Eisenberg with regard to this area of inquiry.

  On the morning of 2 July 1993, out of the presence of the jury, Bertoli was asked to explain the 2 July 1993 Letter and to provide a citation to the point where he was allegedly cut off. See Trial Transcript at 2943-50. The Trial Transcript reveals the following:

  

BERTOLI: Your Honor, I was specifically referring to Tele Dynamics. Tele Dynamics is a company that was underwritten by Monarch Funding Corporation sometime in 1986, 1987. Involved in Tele Dynamics was Eisenberg's two sons, Michael and Paul Eisenberg, as well as Cooper. The pattern that was used by Monarch Funding, that's Leo Eisenberg and his two sons and Cooper, was exactly the same type of a plan that he's claiming that Leo Eisenberg and myself had. He's been testifying basically that he knows nothing, that Richard Bertoli did everything, he did everything at Richard Bertoli's direction, that he really didn't know how to do this.

  

COURT: . . . . How does that concern the [2 July 1993] Letter you've written? . . .

  

BERTOLI: Your honor, [Eisenberg] had charges pending against him from the [NASD]. He was under investigation, criminal investigation with respect to those charges. His two sons were also under the same investigation.

  

COURT: His sons have nothing to do with this. We've been through that a number of times. I want to see the page and paragraph where I cut you off. Do you have it?

  

BERTOLI: I'm flipping to it now, your Honor. If I may have a moment.

  Id. No portion of the transcript was ever presented by Bertoli to support his argument that he had been cut off or limited.

  In fact, as the record indicates, Bertoli's cross examination of Eisenberg was extensive. See Trial Transcript at 2582-678, 2687-839, 2843-938, 2943-3067, 3079-155. It covered five days, 543 pages of transcript and exceeded the Government's direct examination by two days and 232 pages. See id. at 2247-347 (direct examination of Eisenberg), 2353-475 (same), 2492-581 (same). Bertoli was permitted to cross examine, and did cross examine, Eisenberg regarding:

  

(1) Prior criminal activity and convictions, see id. at 2582-84, 2586-88, 2643-44, 2673-74, 2920;

  

(2) prior non-criminal acts of dishonesty, see id. at 2584, 2631-33;

  

(3) the consent decree entered into by Eisenberg with the NASD, barring Eisenberg from being a broker/dealer, see id. at 2595-603, 2636-37;

  

(4) discussions between Eisenberg and the Government, including plea negotiations, as well as the cooperation agreement entered into by Eisenberg with the Government, see id. at 2601-02, 2625-28, 2632-33, 2648-52, 2854-55, 2859-60, 2875;

  

(5) the charges in this case against Eisenberg as well as Eisenberg's understanding of the maximum sentences for those charges, see id. at 2615-18, 2622, 2627-28;

  

(6) charges pending against Eisenberg's sons at the time Eisenberg pleaded guilty, as well as Eisenberg's understanding of the "deals" made by Eisenberg's sons with the Government, and whether Eisenberg's "deal" was related to the charges against his sons, see id. at 2605, 2607-11, 2622-25, 2628-31, 2647-48.

  The record, moreover, contains numerous passages which indicate Bertoli was permitted to cross-examine Eisenberg regarding charges pending against Eisenberg and against his sons for the purpose of revealing Eisenberg's motivation for pleading guilty. For instance, the Trial Transcript reveals the following:

  

COURT: The fact of the matter is, if you want to go into something concerning why he pled, why he's testifying, that's fine, but as to the underlying conduct of his sons, that's an entirely separate and collateral issue. . . . If you want to suggest to the jury that he's lying and the reason's he's lying is to save his sons, and you've got the argument, go ahead and do it, but why his sons did what they did or what they did on a certain date is irrelevant.

  

BERTOLI: Your Honor, perhaps I mispoke earlier. . . . I have no intention of going into any specific dates or any specific acts. . . .

  

COURT: Fine. . . . If you want to go into the [area of] did you enter this plea agreement to help your sons, did you enter the plea agreement to get your sons a better deal, fine.

  Id. at 2609-10.

  

COURT: . . . . Now, as I said before, if you want to go into his motive, fine.

  Id. at 2613-14.

  

COURT: . . . . You have the right to go after this guy hammer and tong with regard to whatever you think he's made up or lied about or whatever deal he's cut for himself.

  Id. at 2620.

  The record also contains passages in which Bertoli did question Eisenberg with regard to Tele Dynamics, the NASD and any charges pending against Eisenberg and his sons. See id. at 2595-603, 2605, 2607-11, 2615-18, 2622-25, 2627-31, 2636-37, 2636-37. For instance, the Trial Transcript reveals the following:

  

BERTOLI: Were you guilty of defrauding the public in the underwriting and sale of Tele Dynamics?

  

EISENBERG: Yes.

  

BERTOLI: And, in fact, you were a defendant in a 1990 complaint by the [NASD] along with your sons Michael Eisenberg, Paul Eisenberg and Robert Cooper involving Tele Dynamics. Isn't that true. . . .

  

EISENBERG: That's correct.

  Id. at 2602-03.

  

BERTOLI: At any rate, Mr. Eisenberg, you faced a total of enough years to make it a life sentence. Was that correct:

  

EISENBERG: If that's what it says, yes.

  

BERTOLI: And late in 1990, you found out that both of your sons, Michael and Paul Eisenberg, were being investigated. Is that correct?

  

EISENBERG: That's correct.

  

BERTOLI: . . . . Mr. Eisenberg, does your plea agreement and the plea agreements of your sons, are they totally separate?

  

EISENBERG: Yes, they are.

  

BERTOLI: They have nothing to do with each other. Is that what your telling us?

  

EISENBERG: I'm saying that my plea agreement and my son's plea agreements, they stand on their own. The Government always told me that I stand on my own.

  

BERTOLI: . . . . And you were under pressure at home at that time as a result of the problems your sons were having. Isn't that correct?

  

EISENBERG: I was under [a] certain amount of pressure, yes.

  

BERTOLI: And that was because your sons told your wife and their mother that they wouldn't have problem except for you. Isn't that correct?

  

EISENBERG: I don't remember [them] saying that.

  Id. at 2622-25.

  The record indicates an extensive cross examination of Eisenberg was conducted by Bertoli. Bertoli was given a virtually unlimited scope of inquiry with regard to matters of Eisenberg's credibility, including Eisenberg's motivation for testifying and the fact that Eisenberg had engaged in the manipulation of Tele Dynamics stock. In light of this, Bertoli's suggestion that he was prejudicially limited in his examination of Eisenberg was factually baseless and without merit. *fn132"


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