[U] Marty’s Ultimate Fate: Now Delayed By Another Month, To February 21, 2018…

Updated @ 10 PM EST: The able Judge Matsumoto has granted this scheduling change by an order tonight, thus:

ORDER as to Martin Shkreli re Defendant’s Letter Request for Extension [493]. As requested by the defendant, Mr. Shkreli’s response to the government’s Forfeiture Motion [464] will be due on January 8, 2018 and the government will submit its reply on January 29, 2018. Mr. Shkreli’s sentencing will be adjourned to February 21, 2018. Ordered by Judge Kiyo A. Matsumoto on 12/15/2017….

[End, update.]

Because he is presently incarcerated, it is hard to imagine that he really wants to slow the sentencing decision and implementation order down. In a more typical white collar case, the person in Marty’s shoes is free on bail — so delaying sentencing hearings is usually part of the strategy. Not likely here. There must be a crush of other holiday intensive work at Mr. Brafman’s shop. [Marty cannot reasonably believe he’ll have an answer on any appeal by then, either.]

In sum, I cannot guess at the “why” for this delay, but I can conjecture that Marty will likely get day for day credit, for all the time he is serving now, at MDC Brooklyn. So — I suppose if one adheres to Marty’s view, he may be out not long after the February 21 new proposed sentencing date.

Me? I hold no such delusions.

And this simply means he won’t really know how long his incarceration will last until after Valentines’ 2018. Here is today’s one page letter request — since there is no reason for the AUSAs to object (the guy’s already in the slam)… I’d expect the able Judge Matsumoto will grant this request.

An image of it appears at right, in which we also learn that we won’t see Marty’s answer on the E*Trade, Enigma, Weezy, Wu-Tang and Picasso “bye-bye — given to Uncle Sam” motion until after Christmas, and New Years, as well. January 8, 2018 to be exact. Okay. Onward, on a chilly but clear Friday here.

Namaste — no new sign that the Greebel defense in wrapping, either.

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So The Defense Has Been Offered A “Deal” — Of Sorts — On Jury Instructions, It Seems…

Late on this Tuesday evening (as we watch hopefully for a progressive result in the Senate race, in Alabama — likely staying up very late), we have read a new order just entered by the prolific and Solomon-like Judge Matsumoto.

We had earlier shown you (on Saturday, past) the full jury instructions, and the proposed defense addendum to them, if Judge Matsumoto was inclined to include a clean copy of the speaking indictment as to Mr. Greebel, in the materials that would go with the jury for deliberations — as the AUSAs had asked.

Tonight, the able judge makes it a clear choice — which has net positives and net negatives for both the government and the defense, thus:

“…ORDER as to Evan Greebel:

By 12 p.m. on December 13, 2017, the parties shall advise the court if they have agreed to (1) provide a “clean” version of the Superseding Indictment to the jury, and include a charge reflecting the defendant’s theory of the case in the court’s jury instructions, or (2) rely on the court’s instructions to advise the jury of the offenses charged in the superseding indictment and the summary of the defendant’s theory of the case….”

Now that’s… clever. And I think it means we may see the end of the defense case in the afternoon tomorrow, on Wednesday, as well. Here is that latest version of the judge’s proposed jury instructions — now weighing in at 84 pages.

We will keep the readership posted. Here is that latest proposed set of instructions, as of this afternoon at 5 PM EST. For earlier versions, click the links in this Saturday post.

[C’mon now Jones — let’s help Alabama drop that Neanderthal Moore — like a sack of dung.]

[U] And, While We Wait For Mr. Greebel’s Defense Team To Wrap It Up…

Billy has alerted us to a new Shkreli jailhouse missive. Kudos, to his keen eyes, here…. click it to enlarge — and laugh — as we see that “denial isn’t just a river in Egypt….”

Apparently Ms. Smythe became aware of it yesterday — on a Sunday. Since all correspondence from inmates at the Brooklyn MDC is read prior to being sealed in an envelope, and posted, we may safely assume that this one — imaged at right — is already in the hands of the Brooklyn AUSAs.

There is no way for us to know exactly when it was written, but it is clearly post-incarceration. And I am pretty sure the AUSAs have already accurately dated it — via Brooklyn MDC mail-log records.

An “exclamation point“-handled commenter asked about Marty’s expectations of privacy, as apparently some Twitter users have castigated the addressee of Marty’s letter, for making it public (assumedly without Marty’s express written consent).

However, Marty well-knows none of his correspondence is private. His lawyers likely advise him of this each time they meet with him — only in person, because good defense lawyers with high profile clients don’t trust that even “Attorney/Client” mail might not also be opened and scanned, or read. Likewise, his phone calls (all monitored).

So, any complaints about the letter being seen in public, on Twitter, strike me as… silly. Marty has essentially no rights of privacy, as a three time convicted (but not yet formally sentenced) felon, writing from inside a prison, when he comments about his case. These are party admissions, and the letter will be used by the AUSAs — at sentencing. It establishes that, even as late as five weeks in front of his sentencing date, and after more than two months in a harsh lock-up, Marty still cannot accept responsibility for his crimes.

It is always someone else’s fault, in Marty’s mind. And Ms. Smythe as much as said so. She is right. He is effectively increasing his likely sentence — with each letter.

It almost seems like Marty wants to get sentenced to ten years or more, on the inside.

[Ironically, it was exactly nine years ago this very morning, in Manhattan, that Bernie Madoff was taken into custody — on a perhaps $18 billion, multi-decade Ponzi scheme.]

Onward; and I’m off for a walk, toward the trains — to enjoy those gracefully floating, soft and large wheeling flakes, now falling here…. Updated — as seen with a smile @ 8:28 local — just 13 minutes ago… facing south and east. Potentially very big news from NASA Thursday!

[U, X2] Well. We Must Be Nearing The End Of The Greebel Defense Case…

UPDATED: 12.09.17 @ 10 PM EST — Late on Saturday night, defense counsel Reed Brodsky filed a five page PDF of a proposed Jury Instruction No. 49 — to set forth the defense’s theory of the case.  To be clear, Judge Matsumoto has not agreed to give it yet, but as it likely tracks the defense closing argument before the jury, I  will disclose it, as the jury will hear it in real time, anyway. I link to it now, because the other 48 instructions (already ordered, and provided below earlier today) closely track those in the US v. Shkreli trial. As I say, this one  proposed instruction nicely highlights the differences (some real; some imagined) between Messrs. Greebel and Shkreli. So do… enjoy.

Yep — I’m just providing balance here. I now (late on Saturday night) expect the jury may get the case as early as mid-week. Final UPDATE — 12.12.2017 @ 4 PM EST — Yesterday, the defense team said in a filing they were trying to winnow down their case. I trust that they are. And now, the likely final jury instructions are now public (84 pages) — from Judge Matsumoto’s just entered order. We must be getting closer. [End, updated portion.]

I say that because overnight, the very able Judge Kiyo Matsumoto has posted her order containing nearly final jury instructions, into Brooklyn’s PACER window. We here on this blog outlet made those final instructions public immediately, in the Shkreli trial — we will do the same as to Mr. Greebel. Here are those 81 pages of PDF-ey goodness.

In addition, we expect letter briefs to be filed over the weekend, on instructions about Mr. Greebel’s desire to admit into testimony (and more likely — into questioning, on cross-examination of government witnesses) the fact that he waived Miranda, and spoke to the FBI agents for several hours upon his arrest. I don’t think, on balance, that helps him much — since it might raise the question of why he isn’t testifying now, in the minds of the jurors. And that, as we all know — is something the AUSAs may not even hint toward.

In sum, I think the defense case will wrap up early- to mid-next week — and the jury will get the case by mid-week… [Updated: perhaps even by late on Monday.]

Or… the defense has a long way yet to go, through a dark and snowy wood — and Judge Matsumoto is just trying to get ahead of the impending holiday rush. Smile.

We shall see. I do not expect Mr. Greebel will testify, in any event.

And I must say — I truly do enjoy the graceful, if sublimely faint, scent of new snow on old cedar planking… this early morning, just north of the City of Big Shoulders….

नमस्ते

Bitcoin Bubble — And Marty Shkreli — On My Mind…

Hmmm… My daily train rides are rarely quite this “interesting“… but today’s was. I mentioned this in comments on another property I curate, where we were discussing the crazy Bitcoin bubble.

It will soon burst. But Bitcoin (just as is true with the accomplices in the below video), and Marty both rely, and relied, on willing shills. Inside helpers, that are made to look like independent “outsiders” assessing value.

So do keep your Benjamins in your pockets, on the trains, this Christmas:

The above actually happened on my train ride in this very morning….

And, speaking of willing shills, Mr. Brafman was quoted, thus today, by Law360: …Having had more than my share of full acquittals in the past, I was nevertheless very proud of the partial verdict in this case, where the jury voted to acquit in five of the most serious charges. One cannot help but wonder, however, what might have been the result if the media was slightly less prejudicial and more balanced….

I think Marty’s own conduct had more to do with the verdict, than media bias, Mr. Brafman. But I get that the idea is to work on avenues — for eventual appeals.

नमस्ते, to all of good will…. g’night!

[U: Defense Case Begins…] The Prosecution Has Rested; Mr. Greebel Has Moved For A Dismissal. Now — We Wait.

UPDATED @ 4:41 EST:Christie Smythe is tweeting the Greebel defense case witness summaries this afternoon, as it just now opened. A former fellow partner of Mr. Greebel, Mr. Jacobs — is testifying that cap tables are often fluid, in pre-IPO deal negotiations. Uh-huh.

More, as the PACER file is updated.

Now Still notclear thatwhether Mr. Greebel will put on any affirmative defense case (when they return from lunch recess), or simply accept that the very capable Judge Matsumoto will reserve on the acquittal motion, and then agree that the AUSAs may begin closing arguments.

As I say — more, as I have it.

[U] First Year Law Students Learn That “But For” Causation… Is NO Causation, At All — In The Law.

UPDATED — 12.06.2017 @ 10 AM EST: This Bloomberg story, of about an hour ago, and authored by the same person mentioned below, is to my eye a very fair and balanced piece of professional journalism. It centers on the differences between Messrs. Greebel, and Shkreli, and their respective trials — and trial strategies. Credit, where credit is due. Well-done, Ms. Smythe. [I might add that any lawyer almost always has a better chance of acquittal — than his client, where the client was the center of a series of felony securities frauds — and has already been convicted of the same.] End, updated portion.

While we wait for the second trial (Greebel) to wrap — I feel a need to help Ms. Smythe “figure herself out“, at least as to why she’s interested in Marty’s case — and conviction… and coming lengthy incarceration.

This morning, she tweeted that it is a case of “but for” causation — that leads to the juggernaut that is today’s Retrophin. Consider:

...“But for” the fraud there would also be no RTRX and investors might have millions of dollars LESS than they do now, not more. That’s a reason why this case is so interesting to me. The #ponzi narrative doesn’t fit. #shkreli….

Well, that is demonstrably false. And every first year student learns this lesson — in Torts. “But for” cause… is no cause at all.

That is — “but for” cause assumes no other possibilities could occur, after the supposed “but for” event. I won’t delve into Palsgraf (the case that teaches this lesson), but I will note that even though Cardozo was a fine mind, he was a rebel, there — in Palsgraf v. Long Island RR Co. (trying to entirely too hard to shape a recovery for an innocent victim of an… accident). But he did ultimately win the day: “proximate cause”… is what matters.

The error is obvious, as applied to Marty’s case: Ms. Smythe errantly assumes (with her tweet) that Retrophin could not have become a financial success, UNLESS Marty happened to defraud it. That is simply… precious.

Quite silly, actually — as my readers well-know, a competent, honest management team would (very likely) have made MORE out of the assets that were formed at the base of the company that went on to be called Retrophin. [True it might have been under a different name, with differing investors, but the notion that no one would have made money but for Marty’s fraud is a pure canard.]

Marty’s frauds impeded the company’s rise — by siphoning off millions of dollars to pay off Marty’s defrauded investors in MSMB, a fund that had nothing to do with Retrophin — truth told.

So — Ms. Smythe starts from… a bungled premise set — in her argument —  one that has been recognized as flawed, since the time of Aristotle. Please. Do go read him, Ms. Smythe.

2,400 some years on… that’s a long time. And she chose to make her “but for” statement, while quoting the ASUAs’ motion for forfeiture. That’s just… sad.

Ahem. I sure wish critical thinking was more a part of college curricula these days. That’s the most charitable thing I can say — because a less charitable view would hold that she has read Aristotle, and is being intentionallydishonest with her readers, to curry favor with Marty — and protect whatever future revenue she hopes for, from her “book deal.”

Onward, then — and Namaste, to all of good will.