Free Trial Memo - District Court of Connecticut - Connecticut

Case 3:02-cr-00341-EBB

Document 496

Filed 08/05/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA v.

ANGEL HERNANDEZ, et al.

: : : : : :

CRIMINAL NO. 3:02CR341 (EBB)

August 5, 2005

GOVERNMENT'S SUPPLEMENTAL TRIAL MEMORANDUM The Government, by the undersigned Assistant United States Attorneys, respectfully submits this supplemental trial memorandum concerning issues that may arise during the trial in the above-captioned case, which is currently set for jury selection on August 9, 2005, with the presentation of evidence to begin on August 10, 2005. The Government incorporates by reference its earlier trial memorandum, filed on April 11, 2005, except to the extent it is superseded by material contained in this supplemental memorandum. STATUS OF THE CASE In May, 2005, a grand jury returned a 22-count Fourth Superseding Indictment ("Indictment") in the above-captioned case. Count 1 of the Indictment charges all defendants with conspiracy to commit mail fraud and wire fraud, in violation of 18 U.S.C. § 371. Counts 2, 18 and 22 charge various defendants with mail fraud, in violation of 18 U.S.C. § 1341. Counts 3 through 17, and 19 through 21 charge various defendants with wire fraud, in violation of 18 U.S.C. § 1343.

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SUMMARY OF THE SCHEME AND ARTIFICE TO DEFRAUD As described in the Indictment, co-defendant Shoreline Motors Corporation operated an automobile dealership in Branford, Connecticut, known as Shoreline Mitsubishi. The individual defendants taking the case to trial were the General Manager and several salespersons at Shoreline Mitsubishi. The Indictment alleges a wide-ranging scheme to defraud Mitsubishi Motors Credit of America, Inc. ("Mitsubishi Credit" or "MMCA") of Cypress, California, as well as numerous customers of Shoreline Mitsubishi. In particular, the defendants allegedly submitted false customer credit information to Mitsubishi Credit by mail, fax and, later, via the Internet using Daybreak Lending Software. Most commonly, the defendants inflated the customers' incomes above the truthful income figures that the customers had provided to the dealership. The false credit applications were submitted to Mitsubishi Credit in order to deceive Mitsubishi Credit concerning the customers' income and other material information, and thereby to induce Mitsubishi Credit to approve the extension of credit to customers of Shoreline Mitsubishi. The evidence at trial will show that the customers would not have qualified for automobile financing at all or for the amounts approved by Mitsubishi Credit had the fraudulent information not been provided to Mitsubishi Credit. The evidence also will show that Shoreline Mitsubishi's customers often were the victims of material misrepresentations and omissions by the defendants and their coconspirators, and that the mails and interstate wires also were used to defraud these customers. The evidence also will show that Shoreline Mitsubishi profited greatly from the sales of the automobiles in question, and that the individual defendants also benefitted financially from the fraud.

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THE INDICTMENT The Government's evidence at trial will establish beyond a reasonable doubt that the defendants committed all 22 counts as charged in the indictment. The counts of the indictment are summarized in the tables below for the convenience of the Court. All of the defendants are named in Count 1, the conspiracy count. Defendant Angel Hernandez is charged in all three substantive mail fraud counts, and all eighteen substantive wire counts. The remaining defendants are charged in particular substantive counts as set forth below: COUNT 1 CONSPIRACY (18 U.S.C. § 371)

Count 1

Defendants ANGEL HERNANDEZ, DAVID BROWN, RICHARD BROWN, NELSON DATIL

Date Feb. 2000 July 2002

Description Conspiracy to commit mail fraud (18 U.S.C. § 1341) and wire fraud (18 U.S.C. § 1343)

COUNTS 2-22 MAIL FRAUD (18 U.S.C. §§ 1341, 2) WIRE FRAUD (18 U.S.C. §§ 1343, 2)

On or about the dates listed for each count below, the defendants listed for each particular count violated either the mail fraud statute (18 U.S.C. § 1341) or the wire fraud statute (18 U.S.C. § 1343) in that said defendants transmitted and caused to be transmitted by means of the United States Postal Service or by private or commercial interstate carrier, or by wire -3-

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communications in interstate commerce, certain mailings, writings, signs, signals, and sounds, for the purpose of executing the above-described scheme and artifice as follows:

Count 2

Statute Violated Mail Fraud

Defendants ANGEL HERNANDEZ

Date 1/28/01

Description of the Wire or Mailing Customer application of J.L. sent to MMCA by mail in connection with the purchase of a 2001 Mitsubishi Diamante Customer application of W.W. and S.W. sent to MMCA by wire in connection with the purchase of a 2001 Mitsubishi Montero Customer application of W.H. and A.W. sent to MMCA by wire in connection with the purchase of a 2001 Mitsubishi Montero Customer application of A.W. sent to MMCA by wire, in connection with the purchase of a 2001 Mitsubishi Lancer Customer application of M.P. sent to MMCA by wire, in connection with the purchase of a 2001 Mitsubishi Galant. Customer application of K.M. and M.M. sent to MMCA by wire, in connection with the purchase of a 2001 Mitsubishi Montero Customer application of R.H. sent to MMCA by wire, in connection with the purchase of a 2002 Mitsubishi Montero Customer application of M.J.B. sent to MMCA by wire, in connection with the purchase of a 2002 Mitsubishi Galant

3

Wire Fraud

ANGEL HERNANDEZ, DAVID BROWN ANGEL HERNANDEZ, DAVID BROWN ANGEL HERNANDEZ, DAVID BROWN ANGEL HERNANDEZ ANGEL HERNANDEZ

5/16/01

4

Wire Fraud

8/22/01

5

Wire Fraud Wire Fraud Wire Fraud

9/10/01

6

6/5/01

7

7/30/01

8

Wire Fraud

ANGEL HERNANDEZ, RICHARD BROWN ANGEL HERNANDEZ, NELSON DATIL

11/3/01

9

Wire Fraud

3/12/02

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Count 10

Statute Violated Wire Fraud

Defendants ANGEL HERNANDEZ, DAVID BROWN ANGEL HERNANDEZ, RICHARD BROWN ANGEL HERNANDEZ, RICHARD BROWN ANGEL HERNANDEZ

Date 9/18/01

Description of the Wire or Mailing Customer application of G.M. and L.B. sent to MMCA by wire, in connection with the purchase of a 2002 Mitsubishi Galant Customer application of A.R.#1 and A.R.#2 sent to MMCA by wire, in connection with the purchase of a 2001 Mitsubishi Galant Customer application of A.R.#2 and T.N. sent to MMCA by wire, in connection with the purchase of a 2002 Mitsubishi Lancer Customer application of M.V. and F.V. sent to MMCA by wire, in connection with the purchase of a 2002 Mitsubishi Galant Customer application of L.E. sent to MMCA by wire, in connection with the purchase of a 2003 Mitsubishi Eclipse Customer application of P.B. and M.B. sent to MMCA by wire, in connection with the purchase of a 2002 Mitsubishi Galant Customer application of I.S.#1 and T.M. sent to MMCA by wire, in connection with the purchase of a 2002 Mitsubishi Montero Customer application of R.S.#2 and M.A. sent to MMCA by wire, in connection with the purchase of a 2002 Mitsubishi Galant Customer application of D.F. and A.B. sent to MMCA by mail, in connection with the purchase of a 2002 Mitsubishi Galant

11

Wire Fraud

9/24/01

12

Wire Fraud

9/24/01

13

Wire Fraud

10/30/01

14

Wire Fraud Wire Fraud

ANGEL HERNANDEZ, NELSON DATIL ANGEL HERNANDEZ, DAVID BROWN ANGEL HERNANDEZ

5/16/02

15

11/27/01

16

Wire Fraud

12/11/01

17

Wire Fraud

ANGEL HERNANDEZ, RICHARD BROWN ANGEL HERNANDEZ, RICHARD BROWN

1/12/02

18

Mail Fraud

1/11/02

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Count 19

Statute Violated Wire Fraud

Defendants ANGEL HERNANDEZ, NELSON DATIL ANGEL HERNANDEZ, NELSON DATIL ANGEL HERNANDEZ, DAVID BROWN ANGEL HERNANDEZ, NELSON DATIL

Date 1/31/02

Description of the Wire or Mailing Customer application of B.M. and C.M. sent to MMCA by wire, in connection with the purchase of a 2002 Mitsubishi Galant Customer application of J.B. sent to MMCA by wire, in connection with the purchase of a 2002 Mitsubishi Galant Customer application of P.D. and G.D. sent to MMCA by wire, in connection with the purchase of a 2002 Mitsubishi Galant Customer application of R.S.#1, I.S.#2, and C.S. sent to MMCA by mail, in connection with the purchase of a 2003 Mitsubishi Eclipse

20

Wire Fraud Wire Fraud

4/16/02

21

4/30/02

22

Mail Fraud

7/28/02

EVIDENTIARY ISSUES A. Non-Exclusion of Case Agent Summary Witness

The Government incorporates by reference pages 10-11 of its April 11, 2005, trial memorandum, but notes that Special Agent Alicia Wojtkonski will be its summary witness. B. Statements Made By Dave Brown and Nelson Datil Are Admissible

As noted in its earlier trial memorandum, the Government will seek to introduce statements made by defendants David Brown and Nelson Datil to law enforcement agents. As explained in the earlier memorandum, these Statements are non-hearsay statements and accordingly are admissible. In reviewing defendant Datil's statement again recently, it appears that he arguably did inculpate Angel Hernandez by name. Accordingly, the Government will undertake to redact any

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mention of Angel Hernandez when Kevin Potter testifies about what Datil told him. See Bruton v. United States, 391 U.S. 123 (1968); Richardson v. Marsh, 481 U.S. 200 (1987); United States v. Rucker, 32 F. Supp.2d 545, 550 (E.D.N.Y. 1999). Accord United States v. Williams, 936 F.2d 698 (2d Cir. 1991). Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY /s/ JONATHAN BIRAN ASSISTANT U.S. ATTORNEY Federal Bar Number ct21922 Email: [email protected] /s/ MICHAEL S. McGARRY ASSISTANT U.S. ATTORNEY Federal Bar Number ct25713 157 Church Street, 23rd Floor New Haven, CT 06510 (203) 821-3700 Email: [email protected]

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CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was sent by facsimile transmission and U.S. mail, postage prepaid, this 5th day of August, 2005, to the following counsel of record: Kurt F. Zimmermann, Esq. Silverstein and Osach, P.C. 234 Church Street, Suite 903 New Haven, CT 06510 (counsel for Angel Hernandez) Richard S. Cramer, Esq. 449 Silas Deane Highway Wethersfield, CT 06109 (counsel for David Brown) Michael S. Hillis, Esq. Dombroski Knapsack & Hillis LLC 129 Whitney Avenue New Haven, CT 06511 (counsel for Richard Brown) Jonathan J. Einhorn, Esq. 412 Orange Street New Haven, CT 06511 (counsel for Nelson Datil)

_/s/__________________________ JONATHAN BIRAN ASSISTANT U.S. ATTORNEY

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