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United States v. Zweig

United States District Court, N.D. California

September 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOEL ZWEIG, Defendant.

          ORDER RE: PRETRIAL MOTIONS RE: DKT. NOS. 52, 53, 54, 56, 58

          WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Defendant Joel Zweig has been charged with wire fraud, obstruction of justice, perjury, aggravated identity theft, and making false statements to a government agency. Zweig moves for disclosure of Brady material, disclosure of 404(b) evidence, dismissal of Counts One, Two, Four, and Twelve of the Indictment, and a bill of particulars. The government moves in limine to preclude Zweig from introducing certain arguments and evidence at trial. I heard argument at the pretrial conference on August 29, 2017. For the reasons stated, I DENY each of Zweig's motions except, because he augmented his motion for a bill of particulars regarding paragraph 18(b) of the Indictment in a motion filed today [Dkt. No. 80-1], I will hold off ruling on that issue until the government has an opportunity to respond. I GRANT IN PART and DENY IN PART the government's motions in limine without prejudice to its ability to raise the denied motions at trial with respect to specific evidence.

         BACKGROUND

         I. Undisputed Facts

         Defendant Joel Zweig is a New York attorney. Indictment ¶ 1 [Dkt. No. 1]. On January 9, 2006, Zweig represented EB in a transaction to purchase a company, Better Living LLC. Id. ¶ 6. Better Living LLC was a tenant of a property at 103 Second Avenue, Manhattan, New York, since January 27, 2005. Id. The landlord of that property was Due Milla Realty LLC Group (“Due Milla”).

         Pet Food Express, Ltd. (“PFE”) was a company that operated a chain of pet specialty retail stores primarily in the San Francisco Bay Area, owned by two individuals, MW and ML. Indictment ¶ 3. On February 6, 2004, PFE entered into a contract with Royal Canin USA, Inc. (“RC”) to distribute its pet food products. Id. ¶ 7. The contract provided that PFE would receive 5% of all of RC's sales in specific retail territories controlled by PFE, defined as any county in which PFE opened an outlet of at least 2, 000 square feet and intended to be a permanent location. Id. ¶¶ 7-8.

         On April 5, 2009, PFE brought suit against RC for breach of the 5% compensation provision in the U.S. District Court for the Northern District of California. Indictment ¶ 9. During the discovery process, on November 11, 2010, MW testified that PFE had planned to expand in Manhattan, but did not state that PFE had a lease arrangement in process for a Manhattan store, nor did PFE produce any documents to RC reflecting that PFE had any commitment in place to expand to Manhattan. Id. ¶¶ 10-11. PFE's December 1, 2010 expert damages report, however, claimed $1.6 million in damages directly attributable to a planned PFE retail store in Manhattan. Id. ¶ 12.

         On July 26, 2011, approximately one month before the trial date of August 29, 2011, PFE emailed to RC a lease purportedly signed by “Anthony Guida” on behalf of Due Milla and EB on behalf of Better Living LLC, dated January 14, 2008 (the “2008 lease”), for retail space at 103 Second Avenue in Manhattan, New York, notarized by MM. Indictment ¶¶ 13, 15. The lease included an assignment dated July 25, 2011, assigning the 2008 lease to PFE and purportedly signed by EB on behalf of Better Living LLC and MW on behalf of PFE. Id. ¶ 13.

         On August 8, 2011, RC filed a “Notice of Potential Fraud on the Court, ” advising the district court that the 2008 lease and assignment appeared to be fraudulent documents. Indictment ¶ 16. In response, on August 26, 2011, counsel for PFE, JDM, delivered to the district court an “Affidavit of EB” and a declaration of Zweig, filed under penalty of perjury. Id. ¶ 17. These documents were also electronically transmitted to RC on the same date. Id. In his declaration, Zweig stated that he received the 2008 lease from EB and forwarded it to PFE without reviewing it. Id. He denied any intent to deceive as well as knowledge that it was fraudulent. Id.

         II. Indictment and Charges

         On May 17, 2016, Zweig was indicted on four counts of wire fraud in violation of 18 U.S.C. § 1343, two counts of obstruction of justice in violation of 18 U.S.C. § 1503, four counts of perjury in violation of 18 U.S.C. § 1623(a), one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1), and one count of making false statements to a government agency in violation of 18 U.S.C. § 1001(a)(2). See Indictment. The government alleges that beginning no later than November 8, 2010 and continuing until at least August 23, 2013, Zweig devised a scheme to defraud through the knowing and intentional transmission of the 2008 lease to PFE, creation of the “Affidavit of EB” including forgery of EB's signature, and submission of a declaration containing false statements. Id. ¶ 18. The purpose of this scheme was to mislead the district court about the origins of the 2008 lease in order to enable PFE to continue the lawsuit to recover money damages from RC USA and to prevent the court from learning about Zweig's role in preparing the 2008 lease. Id.

         In Counts One through Four for wire fraud, the government contends that Zweig transmitted or caused to be transmitted by means of wire in interstate commerce the following four communications:

1. On July 26, 2011, the ECF filed Joint Exhibit List including the false 2008 lease filed by RC's counsel with the district court in the Northern District of California
2. On July 26, 2011, an email including the 2008 lease and assignment from PFE's law firm in Oakland, CA to RC in Florida
3. On August 26, 2011, an email from Zweig in New York to JDM in Oakland, CA attaching the Affidavit of EB and Zweig's Declaration
4. On August 26, 2011, an email from PFE's law firm in Oakland to RC's counsel in Florida attaching the Affidavit of EB and Zweig's Declaration

Indictment ¶ 20. In Counts Five and Six for obstruction of justice, the government charges Zweig with obstructing justice through the creation of the 2008 lease and the false declaration concerning the lease, as well as the Affidavit of EB and forged signature of EB. Id. ¶¶ 21-24. In Counts Seven through Ten, the government charges Zweig with perjury relating to four false statements in paragraphs 13, 14, 15, and 17 of his declaration. Id. ¶¶ 25-32. In Count Eleven, the government charges Zweig with aggravated identity theft in relation to his use of MM's identity and notarial certification, during and in relation to felony violations of 18 U.S.C. § 1343. Id. ΒΆ 22-34. Finally, in Count Twelve, the government charges Zweig with making false statements to a government agency when he ...


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