The November 4 filing by Guy Gentiles’ defense team – Adam C. Ford and Chad D. Seigel, donates a possible finish line in sight for the troubled business owner who, after years of forced labor and manipulation by the DOJ and the FBI, seeks freedom from their persistent harassment. Regular readers of Cooperating Witness should now be familiar with the ongoing saga of Guy Gentiles extraordinary life since his arrest in 2012 at a New York airport and his placement into the government controlled Cooperating Witness program. In taking on the government to fight charges brought in March of this year he has shown immense courage and character, as did his decision to remove himself from the CW program in 2015, which unleashed the fury of his ‘captors’ and the consequential law case.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, Crim. No. 16-155(JLL) Filed November 4 2016. Hon. Jose L. Linares – Newark, New Jersey
UNITED STATES OF AMERICA,
Guy Gentile Defendant.
For Guy Gentile – Adam C. Ford, Esq. Ford O’Brien LLP – and Chad D. Seigel, Esq. Law Offices of Tacopina & Seigel, P.C. Attorneys
REPLY MEMORANDUM OF LAW IN SUPPORT OF GUY GENTILE’S MOTION TO DISMISS THE INDICTMENT BASED ON –
VIOLATIONS OF THE STATUTE OF LIMITATIONS
HIS RIGHT TO A SPEEDY TRIAL, AND
HIS RIGHT TO DUE PROCESS
PRELIMINARY STATEMENT by the Defense
The Government’s Memorandum in Opposition to Mr. Gentile’s Motion to Dismiss (“Gov. Opp.”) falls woefully short of rebutting his arguments which mandate dismissal of the present Indictment. Apparently acknowledging that it did not have the necessary legal support, the Government instead begins its opposition by complaining about “overblown rhetoric,” addressing the purported merits of the allegations in the Complaint, and otherwise footing its argument on a single letter from Mr. Gentile’s counsel while ignoring most everything else that happened before and after that letter’s submission. While the Government may seek to downplay the extent of its violation of Mr. Gentile’s Constitutional rights, misleadingly arguing that the restrictions it placed on his liberty were limited, the Court should take these points for what they are, an attempt to distract it from the obvious conclusion that Mr. Gentile’s rights to a Speedy Trial and Due Process were violated, and that the statute of limitations expired well before the Indictment was filed.
Beyond its focus on collateral points, the Government also made two critical admissions in its memorandum that further support dismissal here. First, the Government acknowledges that at the time it drafted the two tolling agreements signed by Mr. Gentile, it believed the relevant statute of limitations was five years. That admission should bring this case to a full stop. Taking the Government at its word, that admission means both the Government and Mr. Gentile believed the relevant statute of limitations applicable to all crimes Mr. Gentile was agreeing to toll was five years – which precludes the Government from applying a different limitations period now. Equally significant is the Government’s acknowledgement that it always intended to charge Mr. Gentile with a felony. If so, the Government tricked Mr. Gentile into waiving Constitutional rights by informing him that it would consider in “good faith” not reinstating his felony charges if he provided extraordinary cooperation; which he did. This admission also means that when the Government withdrew the original July 2012 Complaint, it did not do so – as Mr. Gentile believed – as a good faith demonstration that he might not be charged with a felony at the end of his cooperation. Rather, the Government dismissed the Complaint in bad faith for the purpose of convincing Mr. Gentile to waive his Constitutional rights and cooperate, knowing all along that it fully intended to charge him with a felony without any such good faith consideration.
Besides these fatal admissions, in response to Mr. Gentile’s statute of limitations argument, the Government contends that 18 U.S.C. § 3301 extended the statute of limitations to six years, and applies to pre-enactment conduct. Because Congress did not expressly provide for the new limitations period to apply retroactively, however, this Court is precluded by Richardson and Langraf from so applying it. Even if this Court finds that § 3301 does apply to pre- enactment conduct in general, the Court should nevertheless refrain from applying it in Mr. Gentile’s case, as he reasonably relied on the five-year statute of limitations – the one the Government believed applied – when waiving Constitutional rights and agreeing to cooperate and toll the applicable limitations period.
While the Government claims that the tolling affidavits were actually waivers, and therefore should not be construed against it (as the drafting party), the plain reading of the affidavits demonstrates that all possible charges would be time-barred if the Government failed to file them before June 30, 2015. Therefore, it does not matter whether the tolling affidavits are waivers or agreements; the outcome is the same – the limitations period that the Government believed applied, 18 U.S.C. § 3282, expired nine months before the present Indictment. But, even if there is some ambiguity in the affidavits, they are obviously agreements, because, as even the Government acknowledges, they included a quid pro quo whereby Mr. Gentile agreed to toll a period of time and the Government in exchange agreed not to prosecute him during it. Thus, construing the affidavits against the Government (as the drafting party) and in accordance with Mr. Gentile’s understanding of that to which he was agreeing, leads again to the conclusion that the charges must be deemed time-barred if filed after June 30, 2015 – as they were here.
The Government also asserts that neither Mr. Gentile nor any other defendant has a Speedy Trial right if no accusatory instrument is on file. This is simply wrong, and ignores a long line of Supreme Court cases explaining what type of Government conduct violates the Speedy Trial Clause. Obviously, the undisputed Governmental restrictions on Mr. Gentile’s liberty, the public nature of his accusations, and the anxiety they caused him demonstrate a Speedy Trial violation. The Barker factors, weighing in Mr. Gentile’s favor, support dismissal with prejudice.
Finally, the Government argues that there has been no Due Process or Fundamental Fairness violation because it made no promises to Mr. Gentile. However, despite detailed affidavits submitted by the defense, the Government has failed to put forth one sworn assertion to support its own position. Instead, it relies heavily on a single letter to suggest that one sentence within it captures the entirety of the statements and promises made between the Government and Mr. Gentile. They do not, as a hearing will demonstrate. While the defense is prepared to proceed to a hearing on this final issue (or on that of Speedy Trial if necessary), we respectfully request that the Indictment be dismissed outright without need for a hearing, as the statute of limitations expired well before the present Indictment and the Government violated Mr. Gentile’s Sixth Amendment right to a Speedy Trial.
- The Government’s Arguments in Support of a Six-Year Statute of Limitations Are Precluded by Binding Third Circuit Precedent
- A. The Charges Against Mr. Gentile Are Expressly Governed by the Five-Year Statute of Limitations under 18 U.S.C. § 3282, and Landgraf and Richardson Mandate this
- There Is No Clear Congressional Intent to Apply 18 U.S.C. § 3301 Retroactively
- The Government Cited Only to Cases Involving Statutes Which Congress Expressly Provided Should Apply Retroactively, and Have No Bearing on this Case
- The District Court’s Opinion in Lewis Addressing § 3301 Completely Misstates the Law, Is Contrary To Landgraf and Richardson, and Should be Disregarded by this Court
- Richardson Remains Good Law And, Given the Relevant Statutory Language, Instructs this Court to Apply § 3282
- The Court May Not Apply a New Criminal Limitations Period Retroactively Without Clear Congressional Intent, Even in the Absence of an Ex Post Facto Violation
- B. Both Mr. Gentile and the Government Reasonably Believed His Alleged Conduct Was Subject to a Five-Year Limitations Period When He Signed Each Tolling Agreement, Precluding Retroactive Application of a Six-Year Limitations Period in this Case
- The Tolling Affidavits Unambiguously Provide That the Government Was Required to Formally Charge Mr. Gentile by June 30, 2015 or the Charges Would Be Time-Barred
- If the Six-Year Limitations Period Applies, the Affidavits – Whether They Are Agreements or Waivers – Were Made Unknowingly, Intelligently, and Involuntarily
- The Tolling Affidavits Were Agreements – Not Waivers – Which Are Construed Against and Bind the Government
- II. The Government Violated Mr. Gentile’s Sixth Amendment Speedy Trial Right by Imposing Strict Extrajudicial Bail Conditions on Him and Otherwise Substantially Restricting His Fundamental Rights
- The Sixth Amendment Applies Where a Defendant is Subject to Actual Restraints of His Liberty After Arrest, Even If There Are No Formally Pending Charges
- Mr. Gentile Was Subject to Lengthy and Substantial Governmental Restrictions and Public Accusation
- Mr. Gentile Did Not Waiver His Right to a Speedy Trial by Cooperating
- The Government Did Not Dismiss the Complaint in Good Faith
- Each of the Barker Factors Supports Dismissal of the Indictment
III. Due Process Mandates Dismissal, as the Government Promised Not to Prosecute Mr. Gentile in Exchange for His Continued Cooperation and He Fulfilled His End of the Bargain
- The Numerous Statements of the FBI Agents, Together with the Totality of the Circumstances, Mandate Dismissal of the Indictment under the Fundamental Fairness Doctrine of the Due Process Clause.
The Defense references 53 cases in law and 12 statues in support of their argument.
The full document with point by point details of the defense can be read here: