Well… it is only two pages, and normally I would ignore it. But this is one letter that wasn’t worth writing, at all. I am certain Martin insisted on making this specious argument, because Ms. Zellan well-understands how factually problematic this suggestion below is.
And we do know they are clutching at straws, now. But, seriously… c’mon, man.
Ms. Zellan, for Martin argues that the SEC was wrong to mention the FACT that Ms. Holmes’ “only” ten year ban was agreed to — and was agreed to, during a time when she was acting as a cooperating witness, against Sunny Balwani.
So the SEC may have settled too soon, is the only learning we may glean from the Holmes matter, on the civil side there. But that doesn’t mean that Martin, who had never seriously offered to settle the civil SEC liability, and never offered to plead in the felony matters… should get the same “deference” that Elizabeth Holmes tricked the SEC into. Geez.
It seems Martin believes that he should be treated as well as someone who cooperated, handed back $500 million in cash, and agreed to testify against another defendant. No sensible jurist would agree that (as of the time of her ten year ban, at least) Ms. Holmes’ was a case “like Martin’s.”
Agreeing to return a half-billion dollars suggests an abiding awareness of the wrongfulness of her conduct. That she is now indicted, likely for backing out on the terms of her earlier deal — is to be expected. There must be a penalty for not helping the government, after promising to do so — in exchange for a relatively short ten year SEC ban.
In any event, here’s the truly silly argument — as made by/for Martin:
“…While the Commission enjoys discretionary authority to settle on a particular set of terms, the fact that the Commission agrees to certain terms does not remove the Court from the process entirely. SEC v. Citigroup Global Markets, Inc., 752 F.3d 285, 293 (2d Cir. 2014) (“To be sure, when the district judge is presented with a proposed consent judgment, he is not merely a ‘rubber stamp.’”).
Furthermore, as a practical matter, it is reasonable to conclude the Commission would not have agreed to a ten-year officer and director bar for Elizabeth Holmes, or a five-year bar for Edward DiMaria, if it deemed those bars of insufficient length in light of the relevant facts and circumstances…. [Ed. Note: This proves too much, by half. That is why, in Condor’s opinion, she is now going to trial for multiple felonies, facing a 20 year stint if convicted. She lied about helping. And wile she has the right to demand a trial, on the crimes, and put the state to its proof… she will get a very long sentence. It openly admits that Martin is — and was — different, and worse, than Holmes.]
And, as we demonstrated in detail, there are clear parallels to be drawn between this case and the facts and circumstances underlying those judgments. Similarly concerning is the emphasis the Commission places on the fact that Holmes and DiMaria were indicted after the Commission settled with them (Reply at 5-6.), as if the length of an officer and director bar should be determined by how much leverage the Commission has over the defendant.…”
Again, my editor’s note would be that they were subsequently indicted not due to any sort of illicit SEC or prosecutorial “leverage” — but due to… their OWN subsequent VERY BAD… conduct. For his part, recall that Martin (as we noted the other night) called the able AUSAs “the Girls’ JV,” and repeatedly said “Fc#k the Feds“, in his live streams commenting on his own trial, each evening. This was not a man who accepted he had done wrong, and was repenting of his evil ways.
No, he played the mobster — and even if it was all “an act,” it is now, only now... that he regrets that act — and only because he can’t rule the world by pushing a broom or a mop. In fact, he may end up as a janitor — like his father before him, when released, due to his otherwise unemployable status — not that honest janitor work… is any shame, at all. [In truth, I held many jobs that required me to wash my hair, scrub and shower — and cough up gray muck, at the end of every shift, all before I turned 22. Those were important, character building jobs. Marty will just do his, in the reverse order that I did mine, it seems.]
So, his ban should be for life — especially in view of the conduct egregiously violating his sentencing order, while locked up in FCI Ft. Dix.
Onward — and Judge Matsumoto will see through this charade by Martin, of that I am confident.
Have a sunny Spring weekend, now one and all — I know I will. Mountain biking is on tap… grin.