Brady on Fire by ProfessorViertel


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									Case: 11-5442   Document: 59   Page: 1     09/28/2012      733879     23

       United States Court of Appeals
                               for the

                     Second Circuit

                   UNITED STATES OF AMERICA,


                                – v. –

                      CHRISTIAN T. VIERTEL,



                                 LAW OFFICE OF ROBERT A. CULP
                                 Attorneys for Defendant-Appellant
                                 29 Garrison’s Landing
                                 P.O. Box 550
                                 Garrison, New York 10524
                                 (845) 424-4431
     Case: 11-5442     Document: 59    Page: 2     09/28/2012    733879      23

                            TABLE OF CONTENTS

PRELIMINARY STATEMENT………………………………………….………..1

The District Court Abused Its Discretion In Denying the Motion For a New Trial
Pursuant to Brady v. Maryland, 373 U.S. 83 (1963).………………...……….…...4

A.    The Government Makes Important Concessions that Support the Conclusion
      that Evidence Contradicting the “Replenishment Theory” Is Material,
      Exculpatory and Undermines Confidence in the Verdict….........................5

B.    The Government Failed to Disclose Exculpatory Evidence…………….....10
C.    The Government’s Complaint that Defendant Has Changed Positions Is
      Unfounded and Unhelpful…..14


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                           TABLE OF AUTHORITIES


Boyette v. Lefevre, 246 F.3d 76 (2d Cir. 2001)…………………………………...13

Brady v. Maryland, 373 U.S. 83 (1963)……………………………………...passim

Kyles v. Whitley, 514 U.S. 419 (1995)…………………………………………….13

United States v. Gil, 297 F.3d 93 (2d Cir.2002)…………………………..……...13

United States v. Price, 566 F.3d 900 (9th Cir. 2009)…………………………….12


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                        `PRELIMINARY STATEMENT

      Appellant Christian Viertel respectfully submits this reply brief in response

to the government’s brief (“Gov’t Br.”) and in further support of the arguments

made in his opening brief.

      Mr. Viertel, who has now served his sentence and been removed to his

native country of Germany, strongly maintains his innocence and demands a new

trial based on a Brady violation that severely undermines confidence in the verdict.

In the case below, as the government admits, it was central to its theory of fraud

causation that Burda Media New York did not generate any earnings at the

relevant times, and instead relied upon “replenishment” liquidity from Burda

Holdings in Germany. Despite the impediments of being a foreign national in

prison, in 2004, Mr. Viertel provided a translation of a Burda Media New York

financial report (or “audit” as he translated it) that he received from German law

enforcement and that had not been disclosed to the defense nor available for trial.

The audit report contradicted this pillar of the government’s case in that it showed

substantial revenues in the millions at Burda New York during the covered period

of 1995 and 1996.1

 The authors of the Burda Media New York report were Dr. Maginot and Dr.
Flatter who prepared the report for the President/CEO of Burda Media New York,
Claus Preute. See A167-170. The report, as standard practice, compared 1995
and 1996 figures.

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      Beyond disputing its significance, the government on the first round of

motions and appeal initially claimed that Mr. Viertel did not prove the government

had the document and this Court ultimately affirmed denial of the motion but

without specifying the ground. Then, on renewed motions in 2008, although he

did not have the underlying documents, defendant produced a transmittal letter

from Burda Media New York lawyers to the government showing that “balance

sheet books” for the period 1985-1998 went to the prosecutors a month before trial

– books Mr. Viertel contended were “integral” in that they would have contained

the same substance and identical figures for each line item if not the actual same

pages of the audit report that was previously submitted in 2004. Thus, the

evidence, as shown below was strongly material and exculpatory.

      This transmittal letter was significant because the government could not

claim Mr. Viertel did not show they possessed a document that was enclosed in a

letter to them. Instead, the government took a different tack, claiming, inter alia,

defendant did not show the government had failed to make these documents

available to the defense. Despite apparently having these documents that Mr.

Viertel argued were directly pertinent to his new trial motion, (not to mention the

previous new trial motion), documents that would speak not only to the merits but

also to the lingering issues of whether the government withheld them, the

government never produced them below. Nor did the government produce any

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transmittal letters or other documentation to show that any of the documents were

ever provided to the defense, attempting to force defendant to prove an impossible

negative – that the documents were not provided to the defense.

      Although the evidence in question was material, exculpatory and withheld,

in yet another instance of obfuscation and confusion, ironically, now the

government suggests in its brief that it is Mr. Viertel who is changing his position,

claiming some never-argued distinction between the audit document and the

balance sheet books. This is wrong. The audit document that Mr. Viertel shared

with the court and the parties in 2004 was, as he said in the 2008 papers, an

integral part of, and would be included in, the “balance sheet books” cited in the

2008 motion -- that the government apparently is unwilling to share. Either way,

Burda Media had substantial income during the years in question. The evidence is

material and exculpatory because it undermines the government’s replenishment

theory that was central to its case. And the transmittal letter showing that the

balance books were provided to the government, particularly with the

government’s failure to share those books, establishes that the government

possessed the information in question. A new trial must be ordered or at the very

least a hearing held where, inter alia, the balance sheet books referenced in the

transmittal letter to the government must be produced..

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    The District Court Abused Its Discretion In Denying the Motion For a
        New Trial Pursuant to Brady v. Maryland, 373 U.S. 83 (1963).

      The parties do not disagree materially on the legal standards that apply.

Opening Br. 25-29; Gov’t Br. 25-28. The primary questions in dispute then, are

whether the evidence in question was (1) material and exculpatory; and (2) was

withheld by the government. On the first point, while the government does not

agree that the evidence satisfies the standard, it makes important concessions about

its case and the evidence that go a long way towards establishing it. On the second

point, the parties fundamentally disagree and the government’s failure to show, or

even attempt to show, that it actually made the documents available to the defense

should be held against it, and ruling for Mr. Viertel entered. Alternatively, the

Court should remand for a hearing.

      Additionally, the government’s argument that defendant has changed his

position is nonsensical and immaterial. Defendant has not changed his position,

far from it, he has labored to present his Brady claims in the face of shifting and

non-forthcoming positions by the government which has refused to make

documents available, or even say whether it has them.

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A.    The Government Makes Important Concessions that Support the
      Conclusion that Evidence Contradicting the “Replenishment Theory” Is
      Material, Exculpatory and Undermines Confidence in the Verdict.

      Although the government disputes that any withheld evidence was

exculpatory and material, it acknowledges in its brief the importance of the

“replenishment theory” the averrment that Burda Media New York had no

revenues, and also recognizes that the “audit” provided by Mr. Viertel in the 2004

motion (that was an integral part of the “balance sheet books” referenced in the

2008 motion) contained an “attribution of profits” to Burda Media. Although, the

government insists that confidence in the verdict is not undermined, analysis of the

evidence in this context strongly suggests otherwise.

      As noted in the opening brief (Opening Br. 10-11), a central issue at trial

was the government’s “replenishment theory” whereby Burda Media New York

did not have its own revenues and thus required “replenishment” from Burda

Holding in Germany. This replenishment was central to the fraud charged because

Burda Media New York had to mail invoices to Burda Holding in Germany which

would wire funds to replenish those allegedly stolen by fraud.2 Burda Media New

York’s lack of independent revenue was thus causally connected to the necessary

“mailing” of invoices through international carrier and wiring of funds. Otherwise

 As noted in the Opening Brief at 36-37, the replenishment theory made little
sense to begin with because the evidence showed that the wire actually preceded
any shipment of the invoice in question.

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put, the prior losses due to the alleged fraud scheme caused both the “mailing” by

international freight company from New York to Germany of invoices in support

of the scheme and the anticipatory concomitant wiring of replenishment funds

from Burda Holding back to New York to replace funds partly attributed to the

fraud. As summarized in the opening brief, this theory was presented in the

indictment, argued in the opening statement, emphasized in the testimony of non-

director and local bookkeeper Ellen Kiefer, and stressed in summation. Although

logically flawed, as noted in the opening brief, the argument was central to its case

and to conviction.

      In its brief on appeal here, the government takes no issue with its reliance on

the replenishment theory. In fact, the government mentions the replenishment

theory multiple times. In introducing its description of the use of the mails and

wires, as the government’s brief states, “Burda Media, the direct victim of the

fraud, had no revenue of its own, but rather served as the New York press for

Burda Holding.” Gov’t Br. 11 (emphasis added). The government goes on to

describe how “[f]raudulent invoices created by Viertel and Blumenberg were, on a

monthly basis, sent by interstate carrier from New York to Germany” and that

“regular interstate wires from Germany to New York funded the payments.” Id.

According to the government “[t]he scheme could not have continued and

succeeded without these wirings and mailings” which were necessary because

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“Burda Media lacked the funds to pay the phony invoices but for the wires from

Germany.” Id. at 11 (emphasis added).3

      The government does not appear to dispute that the audit report originally

submitted in the 2004 motion actually contradicts the central contention that Burda

Media New York did not have any revenues. To the contrary, the government’s

brief acknowledges the audit report’s “description of Burda Media as ‘self

sustaining’ and its attribution of profits to Burda Media.” Gov’t Br. 29.4 Without

explanation, the government simply goes on to conclude that these facts “simply

do[] not undermine the findings of the District Court” continuing on to quote the

district court’s description of the replenishment theory whereby funds were wired

to replace funds allegedly paid on false invoices. Govt Br. 29-30 (quoting A241-

42). But the government always made clear at trial, to the district court and to

this Court that the causation in the scheme began with the fact that Burda Media

  See also Govt Br 8-9 (“…Burda Media sent the invoices submitted by the
vendors to Burda Holding in Germany via air freight… whenever Burda Media’s
bank accounts fell below a certain level due to the payment of such invoices, Burda
Holding would replenish Burda Media’s accounts by causing a sum of money to be
wired from Burda Holding’s banki account in Germany to Burda Media’s bank
account in New York.”)
  The district court had rejected reliance on the “self sustaining” language (A160)
on the ground that this simply meant that “Burda Media was organized as a
separate company.” A241-42. But the corporate audit report submitted by
defendant identified by name and precise dollar revenue amount for at least 25
client-companies to which Burda Media NY provided valuable services and from
whom Burda Media recorded and earned some $6.888 million in revenues in 1996.

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New York did not have its own revenues for payment on the invoices – thus

requiring replacement of the funds paid on the invoices. The government repeated

this in the brief submitted on the 2004 motion that led to the quote from the district

court it now relies on. A199 (“Burda Holding [sic; Burda Media clearly intended]

did not generate its own income, but rather received money from Burda Holding

with which to operate”). Nor did the district court in any way remove the lack of

revenues on the part of Burda Media New York from its analysis. To the contrary,

in that initial decision of the district court, the court included in its description of

the replenishment theory the fact “that the funds of Burda in New York would be

replenished by wires from Burda in Germany such that Burda in New York would

have sufficient ongoing funds.” A226.

       It is plain then, especially from the government’s own contentions but also

from the district court’s analysis that if Burda Media New York had its own

substantial revenue stream this would disrupt the causation that both the

government and the district court were relying upon.        The evidence of the 1996

audit of Burda Media NY squarely contradicted this theory. It showed that Burda

Media NY could not and was not regarded by its auditors and its parent Burda

GmbH (not Burda Holding) as a “branch” of the German parent company, but

rather as a “profit center” at least since January 1, 1992 as stated in the

introduction to the audit. Burda Media NY was certainly not some parasite that

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simply generated expenses but had no revenue. Rather, as defendant pointed out to

the court, Burda Media NY was described by its auditors to be “self sustaining”

since at least 1992. A160. More importantly, the audit itself records and details

some $6.888 million in revenues for 1996 for at least 25 client-companies to which

Burda Media New York provided business. A173-76. The audit is simply at odds

with the image of Burda Media NY as a mere cost generator, and consequently, at

odds with the larger government theory that cost generation was causally related to

wire replenishments from overseas.

       In sum, the government clearly sets forth in its own brief the significance to

the fraud causation theory that Burda Media New York did not have its own

revenues and admits that the audit report contains “attribution of profits to Burda

Media.” Govt Br 29. That being so, the audit report also contradicts the

government’s claim just one page earlier that Burda Media “did not generate its

own income.” Clearly this is sufficient to undermine confidence a verdict where

the jury was squarely told that fraud causation began with the fact that Burda

Media New York did not have its own revenues and thus required replenishment.

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B.    The Government Failed to Disclose Exculpatory Evidence.

      This leaves the question whether the Brady evidence was possessed by the

government and not disclosed.

      Despite its strange refusal to speak directly, plainly the government cannot

deny that the “balance sheet books” provided by letter from Burda’s counsel

shortly before trial were in its possession. Apart from its confusing and

hypocriticial attempt to blame Mr. Viertel for changing positions, see Section C,

infra, the government is left with its contention that Mr. Viertel failed to prove that

the government did not disclose the “balance sheet books” to Mr. Viertel. Gov’t

Br. 30-31.

      Mr. Viertel stated emphatically in the papers below that he was not provided

any Burda related discovery in the month before trial, which is the only time this

evidence could have been disclosed. A265 (“ZERO BURDA-MATERIAL


OF TRIAL”). In opposition, the government could only offer the district court, as

it offers this Court, its “proffer” that “its practice was to disclose such information

promptly upon receipt and that it had no reason to believe such practice was not

followed with respect to this information.” Gov’t Br 31 (citing A257). Of course,

the government fails to put forth its proof that it did disclose the evidence – in the

form of discovery letters that are routinely drafted by federal prosecutors. The

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absence of such a letter suggests no such transmittal ever occurred and thus the

inference the government seeks runs squarely against it.

      Moreover, it bears repeating that the cover letter was dated August 7, 2002.

The trial in this case commenced on September 12, 2002 and had previously been

scheduled for September 3, 2002. A10-11 (Docket entries). If as the government

seems to imply, there was some sort of “open file discovery” policy in this case,

the government could not receive exculpatory information just a few weeks before

trial without alerting defense counsel that it existed.

      Throughout these proceedings, Mr. Viertel has been in two places -- federal

prison in Florida and in Europe where he was removed from the United States, yet

the government would have him somehow magically prove a negative – that the

government did not disclose the “balance sheet books” to his counsel.       At the

same time, it cannot be sufficiently emphasized how evasive the government has

been about these documents. When Mr. Viertel made his motion in 2004 in

respect to the “audit” rather than be up front about it, the government chided Mr.

Viertel for not showing that the government ever had the documents. After Mr.

Viertel returned to the district court with the cover letter from Burda Media New

York’s lawyers enclosing balance sheet documents, the government adopted a

different approach, criticizing defendant this time for “offer[ing] nothing to support

his contention that any books the Government obtained from Burda Media were

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not, in fact, disclosed to defense counsel prior to trial.” A257. Although this

argument is again evasive, clearly the government does not deny having the papers

– begging also the question why the government did not make such a disclosure


      Under these circumstances of dubious prior disclosure, Mr. Viertel’s

presentation of the audit he had obtained, his further presentation of a letter

accompanying balance sheet books given to the government, and the government’s

non-denial that it has the documents, it was surely an abuse of discretion for the

district court to conclude, that “the defendant has failed to substantiate his

allegation that the government possessed the balance sheet books …” A271.

Indeed the conclusion could not be more arbitrary in light of the cover letter saying

the balance sheet books were being furnished to the government.

      Under these circumstances, it becomes the government’s burden to show

that it did disclose the evidence in question. Where a defendant has submitted

sufficient information to warrant an inference that the government has particular

exculpatory information, the burden shifts to the government to show affirmatively

that it provided it to the government. As the Ninth Circuit has explained in United

States v. Price, 566 F.3d 900, 910 (9th Cir. 2009), “Once the defendant produces

such evidence, the burden shifts to the government to demonstrate that the

prosecutor satisfied his duty to disclose all favorable evidence known to him or

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that he could have learned from ‘others acting on the government’s behalf.’”

Quoting ." Kyles v. Whitley, 514 U.S. 419, 437 (1995). The Court in Kyles

observed that it is the “prosecution, which alone can know what is disclosed,” and

therefore, whether in good faith or bad faith, “the prosecution’s responsibility for

failing to disclose known, favorable evidence rising to a material level of

importance is inescapable.” Id.

      By way of illustration, in Boyette v. Lefevre, 246 F.3d 76, 89-90 (2d Cir.

2001), this Court held that the prosecution had been properly shown to have failed

to disclose exculpatory material where defense counsel denied ever receiving the

information and the prosecution relied only on its “usual practice.” That is the

situation here as Mr. Viertel has declared emphatically that he was not provided

this information, and the government relies only on its policy. Moreover, as noted

in the opening brief, this Court has recognized that in paper-heavy white collar

cases like this one, the government’s Brady obligations are not discharged by

disclosure that does not allow the defendant to take advantage of it. Opening Br.

33-34 (citing inter alia United States v.Gil, 297 F.3d 93, 105 (2d Cir. 2002)).

      Under all of these circumstances and the governing authority, the

government failed to disclose exculpatory evidence, or at a minimum, a hearing

should be held.

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C.    The Government’s Complaint that Defendant Has Changed Positions Is
      Unfounded and Unhelpful.

      The government complains at various points that Mr. Viertel has changed

his position and that this has made it difficult for the government to respond to the

issues raised. According to the government, Mr. Viertel “abandons his claim that

the balance sheet books were an ‘integral part’ of the 1996 Audit, and now claims

for the first time that the books included the 1996 Audit.” Gov’t Br. 24-25. At

various points the government complains that it is “complicated” to respond to the

“shifting nature” of Mr. Viertel’s arguments. Gov’t Br. 28. These contentions are

both baseless and pointless, and if anything, highlight the government’s

obfuscation of the issues in this case by refusing to take coherent and forthcoming

positions on its Brady obligations.

      Mr. Viertel has not changed his argument or his position and has done

nothing more than to do all he could to present his Brady issue to the district court

with no help from the Department of Justice. Ironically, in 2004 defendant from

his jail cell in Florida was able to obtain from German authorities these document

that he later submitted and described as an “audit.” Mr. Viertel provided his own,

never-challenged ad hoc translation (without benefit of German business treatises

or dictionaries) with his motion to the district court in 2004. Rather than make a

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straightforward representation whether the government had this document in its

files (or any substantial equivalent), the government took the first of several vague

positions that “Viertel does not provide any basis for his apparent contention that

the Government possessed these papers and that such papers should have been

disclosed prior to trial.” A194 This allowed the issue to remain obscured all the

way through argument on the prior Rule 33 appeal, and, indeed, even on this

appeal it cannot be ascertained if the government is saying it has that document or


       After that appeal, Mr. Viertel presented the issue to the district court anew

with a copy of the transmittal letter to the prosecutors enclosing the “balance sheet

books” for the same time period and additional time periods. A247-49. Mr.

Viertel did not and could not submit the “balance sheet books” for the simple

reason that he did not have them, and only had the portion that he previously

submitted and described as an “audit.” One might have expected the government

to furnish the balance sheet books to the district court to put the issue to rest but

instead the government adopted a different misleading and non-forthcoming

argument that Mr. Viertel had failed to show that this document was not among

those furnished to defense counsel. A257. No transmittal letter showing it was

provided to defense counsel was provided nor any other identifying information --

just the government’s claim that its policy was to share information in the abstract.

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Again, it should be noted that the five-year old balance sheet books that were

furnished to the government just over a month before the trial was set to begin and

Mr. Viertel has no information that such highly relevant financial information was

ever provided. A265 (Noting that no Burda materials were provided in discovery

in the month before trial).

      The government expresses some sort of confusion or potential distinction

between the “audit” provided in 2004 and the “balance sheet books” referenced in

the transmittal letter in 2008. Reciting a distinction that seems incomprehensible,

the government contends Mr. Viertel “abandons his claim that the balance sheet

books were an ‘integral part’ of the 1996 Audit, and now claims for the first time

that the books included the 1996 Audit.” Gov’t Bar. 24-25. Leaving aside the

government’s inexcusable failure to actually furnish these balance sheet books to

clear up any confusion, Mr. Viertel’s position is that the balance sheet books, by

recognized German business and accounting practices, would have contained the

audited segments provided in 2004 and additional material information he did not

receive. Thus as Mr. Viertel stated in his papers in 2008, referring to the 1996

balance sheet book,, “the ’96 book is integral part of the ‘1995/6 audit’ submitted

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by petitioner [in 2004] as newly discovered and as materially exculpatory

evidence.” A248. (emphasis in original).5

 Mr. Viertel is an experienced businessman with a higher business administration
degree and considerable experience with corporations and corporate accounting for
German companies. “Balance sheet books” or “bilanzbuch” in German is defined
as follows in German with a translation provided.
             Im Bilanzbuch, das auch als Inventar und Bilanzbuch
             bezeichnet wird, werden die Inventare und » Bilanzen der
             einzelnen Jahre aufgezeichnet. Es dient zur Aufgliederung
             und geordneten Aufbewahrung der Inventare, Bilanzen
             undGewinn und Verlustrechnungen. Das Bilanzbuch ist bei
             Übertragungsbuchhaltung erforderlich,
             bei Durchschreibebuchhaltung empfehlenswert. In
             der Praxis wird das Bilanzbuch meist nicht mehr als Buch,
             sondern in Form von Karteikarten oder Listen geführt.

              In the “Bilanzbuch”, which is also known as “Inventory and
              Bilanzbuch” will be the inventories and balance sheets of
              individual years recorded. It is used to breakdown and orderly
              storage/keeping of the inventories, balance sheets and profit and loss
              statements. The Bilanzbuch transfer-bookeeping is required,
              with Durchschreibebuchhaltung recommended. In practice,
              the Bilanzbuch is usually no longer a book, but in the form of
              index cards or lists.
The term Mr. Viertel translated in 2004 as “audit” is translated here as “profit and
loss accounts,” but the conclusion remains that the “profit and loss accounts” (or
“audit”) is an integral part of the overall balance sheet book in German business

(Note that the translation can be verified by going to the website cited and using
“Bing” to translate. Bing is recommended because “Google translate” results in
certain nonsensical translations.)

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        Thus, contrary to the government’s misdirection, this was not some entirely

new item of information unrelated to the 2004 document he labeled “audit” and

provided to the court with translations, something the government never did. He

was stating that the 2004 document which clearly established that Burda Media did

generate sales, revenue and profits was not something the government could fairly

say it did not have because the “balance sheet books” contained the substance if

not actual pages of the audit within it – thus one was an “integral part” of the other.

      The government’s contention (Br. 29) that when it responded to the motion

in 2008 it did not realize it was about the “audit” that was the subject of the 2004

motion and appeal decided in 2007 does not survive even cursory analysis. It is

based on some unfathomable distinction between the audit being “integral” as

opposed to “included” in the balance sheet books (that the government refused to

disclose). Moreover, it could not have been more clear in Mr. Viertel’s motion that

he was refuting the contention of the government that it never had had the audit (or

that it was never proven that it did) as argued vehemently on the 2004 motions and

the 2007 appeal. That point is manifest in Mr. Viertel’s papers which made clear

reference to the appeal including statements at oral argument. A247-48, A265.

      The point nowhere refuted is that the “balance sheet books” which the

government cannot deny having had custody of given the transmittal letter contain

the same information as the “audit” which the government attempted to deny

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having. If the government wanted to draw distinctions between the audit and the

balance sheets books which Mr. Viertel clearly stated contained the same

information on the point in question it was incumbent upon the government to go

into its files and produce the balance sheet book rather than reduce its Brady

obligations to rhetorical nonsense.


      The judgment denying the motion for a new trial should be overturned and

the case remanded for either a new trial or a hearing on the motion.

Dated:       Garrison, New York
             September 28, 2012
                                       Respectfully submitted,

                                       s/Robert A. Culp______________________
                                       Law Office, Robert A. Culp
                                       29 Garrison’s Landing, P.O. Box 550
                                       Garrison, New York 10524
                                       (845) 424-4431

                                       Counsel for Defendant-Appellant
                                       Christian Viertel

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                      Certification Pursuant to Rule 32(a)(7)

      Robert A. Culp, counselor for appellant Christian Viertel hereby certifies

that according to the word count function of the word processing program used to

prepare the accompanying brief, this brief contains 3998 words, exclusive of the

table of contents and the table of authorities.

                                                   s/Robert A. Culp____________
                                                   Robert A. Culp

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