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					IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK


UNITED STATES OF AMERICA

         -v-

JOHN NICOLO,

                 Defendant.               05-CR-6161L



                    MOTION FOR BAIL REVOCATION

     PLEASE TAKE NOTICE that, upon the annexed memorandum, the

undersigned moves this Court for an arrest warrant and Order

pursuant to 18 U.S.C. § 3148(b) revoking the Order Setting

Conditions of Release for defendant John Nicolo, or for such

other relief as may be proper, due to the defendant's commission

of federal crimes while on release, that is, obstruction of

justice in violation of Title 18, United States Code, Section

1503, and witness tampering in violation of Title 18, United

States Code, Section 1512.


     DATED:    Rochester, New York, April 18, 2008.


                                 TERRANCE P. FLYNN
                                 United States Attorney

                                 S/Bret A. Puscheck
                           BY:   BRET A. PUSCHECK
                                 Assistant United States Attorney
                                 United States Attorney’s Office
                                 620 Federal Building
                                 100 State Street
                                 Rochester, New York 14614
                                 (585) 263-6760, extension 2232
                                 Bret.Puscheck@usdoj.gov
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK


UNITED STATES OF AMERICA

           -v-

JOHN NICOLO,

                    Defendant.                   05-CR-616L



       MEMORANDUM IN SUPPORT OF APPLICATION TO REVOKE BAIL


     The United States of America, by its attorney, Terrance P.

Flynn, United States Attorney for the Western District of New

York, Richard A. Resnick, Assistant United States Attorney, of

counsel, hereby alleges and submits the following in support of

its application to revoke the bail of defendant John E. Nicolo

(“Nicolo”).



     1.      On May 18, 2005, following his arrest in the Southern

District   of    Florida   on   a   criminal   complaint     issued    in    this

district, the defendant, JOHN E. NICOLO, was released on conditions

set by Chief United States Magistrate Judge Ann E. Vitunac in West

Palm Beach, Florida, including a $500,000 corporate surety bond and

$2,000,000      personal   surety    bond   co-signed   by    his     wife    and

collateralized by her home in Palm Beach, Florida.                  On May 19,

2005, at his initial appearance in Rochester before United States

Magistrate Judge Jonathan W. Feldman, defendant was continued on

the same bail with pretrial supervision and an Order Setting
Conditions of Release was issued.    As a condition of his release,

among others, the defendant was directed to “not commit any offense

in violation of federal, state or local law while on release in

this case.”   (Condition #1).       In addition, the defendant was

directed to “avoid all contact, directly or indirectly, with any

persons who are, or who may become a [] potential witness in the

subject investigation or prosecution”.    On August 1, 2006, at his

arraignment on the Superseding Indictment before United States

District Judge David G. Larimer, defendant was released pursuant to

the existing release conditions.    On March 10, 2008, the trial of

this case commenced.



     2.   On March 27, 2008, the defendant’s attorney offered

Defense Exhibit #1 as evidence in the trial. The details regarding

this document have been previously described to the Court in the

government’s motion to revoke bail dated March 31, 2008, which is

incorporated herein by reference.    While that motion was denied on

April 1, 2008, by this Court, additional relevant evidence has been

adduced since that time.   First, Gail Bolsover, an expert in the

field of document examination has now testified at the trial and

offered her conclusion that Exhibit D-1 itself is not authentic and

that it is likely that the signature contained on the document

originated from another source. Further, Postal Inspector Michelle

Mann has also testified at the trial that Exhibit D-1 was not

contained in the approximate 85,000 pages of documents provided to
the government by Nicolo, nor was it in the documents produced to

the government by Eastman Kodak.



     3.   Over and above this conduct, additional acts constituting

obstruction   of   justice   and   witness   tampering   have   now   been

committed by the defendant, and the government again moves the

Court for revocation of the defendant’s bail and release order.



     4.   Specifically, on Wednesday, April 16, 2008, between

approximately 3:00 p.m. and 4:00 p.m., the government advised the

Court and defense counsel that it believed that certain documents

contained within the IRS file of its previous audit regarding John

Nicolo’s corporate returns were fraudulent, and that the government

would be calling a witness1 (hereinafter “witness”) who would

testify to establish this fact.     The defendants’ presence had been

waived for this hearing, and they were not physically present at

this court appearance.



     5.   Although the witness was not mentioned by name during the

appearance, shortly after Court adjourned, counsel for Ms. Roeder

contacted the witness to discuss the case. The government does not

allege that there is anything improper with counsel contacting a

witness to attempt to speak about the case.



     1
          Due to the nature of the allegations, the individuals
names are being withheld from this public filing.
       6.   On the morning of April 17, 2007, the government was

advised by an individual who works for the witness (hereinafter

“individual”) that two voice messages were left on the witness’

office voice mail early that morning by John Nicolo. Specifically,

the individual – who listened to the messages – stated that a

message was left on the witnesses voice mail at approximately 3:00

a.m., wherein Nicolo said that he was sorry the witness was

involved    in   this     matter,   and   that    if    the   witness    needed   an

attorney, that Nicolo could help him to get one.                  Nicolo said he

would leave his cell phone number, however, the message was cut

off.



       7.   The individual also stated that another message was left

by   Nicolo    on   the    witness’   voice      mail   that   same     morning   at

approximately 5:30 a.m., wherein Nicolo reiterated much of the

first message, stating that he was sorry he got the witness

involved in this, and that Nicolo thought that the witness should

really get an attorney. Nicolo further stated that he did not know

why the witness would get involved in this matter.



       8.     The individual additionally stated that, in one of the

messages, Nicolo further stated that the government had flown in a

witness three times from Colorado, that she got a lawyer, and then

the government did not call her to testify.
     9.     In fact, the government did bring a potential witness in

this case to Rochester three times from Colorado, and the witness

did have a lawyer when first brought to Rochester, and this witness

indeed was not called by the government at trial.



     10.    After the jury was excused on April 17, at approximately

1:30 p.m., the government raised the fact with the Court and

defense counsel that it had learned that defendant Nicolo had

attempted to contact the witness and suggested that he should get

a lawyer.    The government also confirmed to the Court and counsel

that this witness is being called to testify at trial.      As this

Court is aware, the Second Circuit has recognized that an attempt

by a defendant to encourage a witness not to testify during a

pending trial may constitute obstruction of justice.     See United

States v. Williams, 385 F.3d 127, 139 (2d Cir. 2004).



     11.    On Thursday, April 17, 2008, the witness had confirmed

travel arrangements, made by this office, to travel from Florida to

Rochester to give testimony in this case.        While en route to

Rochester, the individual spoke with the witness, and relayed the

content of the messages from Nicolo to the witness.



     13.    The witness boarded the first flight from Florida, and

arrived at the Philadelphia International Airport at approximately

2:50 p.m.   However, the airline confirmed that the witness did not
board    the    second      flight   from    Philadelphia      to   Rochester       and,

instead, the witness utilized the witness’ own personal funds to

purchase a ticket from Philadelphia back to Florida.



        14.    As court recessed for the day on Thursday, April 17,

2008, Assistant United States Attorney Richard Resnick went to

leave the courtroom.            FBI Special Agents Kevin Black and Albert

Zenner left at the same time, and CSO Steve Atterbury was stationed

at the back door of the courtroom.                     Defendant Nicolo followed

Resnick       out    of   the   courtroom    and,      right   after      exiting   the

courtroom, Nicolo told Resnick that “these fibs are going to catch

up with you.”         Based upon the defendant’s demeanor, tone and the

substance       of    the    statements,         the   statement    was    reasonably

interpreted as an attempt to threaten or intimidate the prosecutor.

At the time of the statement, defendant Nicolo was not leaving the

courtroom for the day.           Rather, he followed AUSA Resnick out and

made this statement and, after making this statement, Nicolo

returned into the courtroom.



        14.    Based upon the foregoing, the defendant has failed to

comply with the conditions of his release.                 First, submission of a

false and altered document during the trial of a criminal case is

a clear violation of Title 18, United States Code, Section 1503 and

warrants       this   court     issuing     an    arrest   warrant     and   revoking

defendant Nicolo’s bail.              Second, contacting a witness in an
attempt to prevent them from testifying is a violation of Title 18,

United States Code, Section 1512.            Finally, the making of a

threatening communication in an attempt to intimidate an officer of

the Court is a violation of Title 18, United States Code, Section

1503.



        15.   The facts which the government here proffers warrant a

man of reasonable caution in the belief that the defendant has

committed a crime while on bail and, thus, satisfy the probable

cause     standard    of   Title   18,   United   States   Code,   Section

3148(b)(1)(A).       United States v. Gotti, 794 F.2d 773, 777 (2d Cir.

1986).



        16.   The defendant’s conduct further raises a rebuttable

presumption that no condition or combination of conditions of

release will assure that the defendant will not pose a danger to

the safety of any other person or the community.             18 U.S.C. §

3148(b)(2)(B).



        17.   Based upon the foregoing, the government submits that an

Order of Detention is appropriate since there are no conditions or

combination of conditions of release that will ensure that further

acts of obstruction and/or intimidation will not be committed and

since the defendant now poses a serious risk of flight.
     WHEREFORE, pursuant to Title 18, United States Code, Section

3148(b), the government requests that the court issue a warrant for

the arrest of defendant Nicolo for violation of his conditions of

release and that defendant Nicolo’s release Order be revoked.


     Dated: April 18, 2008, at Rochester, New York.

                               TERRANCE P. FLYNN
                               United States Attorney
                               Western District of New York


                               S/Bret A. Puscheck
                         BY:   BRET A. PUSCHECK
                               Assistant United States Attorney
                               United States Attorney’s Office
                               620 Federal Building
                               100 State Street
                               Rochester, New York 14614
                               (585) 263-6760, extension 2232
                               Bret.Puscheck@usdoj.gov
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK


UNITED STATES OF AMERICA,

               -vs-                             05-CR-6161L(F)

JOHN NICOLO, DAVID FINNMAN,
and CONSTANCE ROEDER,

                Defendants.



                       CERTIFICATE OF SERVICE

     I hereby certify that on April 18, 2008, I electronically

filed the foregoing with the Clerk of the District Court using its

CM/ECF system which would then electronically notify the following

CM/ECF participants on this case:


          1.     Chad Seigel, Esq.
          2.     Stephen Turano, Esq.
          3.     Paul DerOhanessian, Esq.
          4.     Matthew R. Lembke, Esq.



                                     S/Sean C. Eldridge

				
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