Mr. Shkreli’s 14 Page Argument — Re Calculations Of Loss/Sentencing…

 Mr. Brafman filed it a little earlier than expected, but here it is (as a 14 page PDF file).

I will save my comments until next week — as I am headed back out into the Arizona sunshine, outside Jerome, an 1880s era mining camp at about 8,000 feet elevation… now an artists’ colony of some note.

Namaste — see you next week — keep it spinning in good karma!

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14 thoughts on “Mr. Shkreli’s 14 Page Argument — Re Calculations Of Loss/Sentencing…

  1. R West says:

    This case gets even funnier. If Martin is somehow able to wiggle out of all the convictions on (i) “no damages, no fraud,” and (ii) “reliance on counsel” and “can’t conspire with own attorney as a matter of law,” he’s really going to fool foolish for spending all that time in jail for nothing!

    Even if he wins on appeal, he’s still looking at a couple of more years. Unlikely Judge will let him out pending appeal … one would think!

    Liked by 1 person

  2. R West says:

    Martin pretty much screwed now. Federal judges only care about being reversed on appeal. Once you get into sentencing/forfeiture, the test for reversal is “abuse of discretion,” which is very subjective – very difficult to show. So I think Martin (via his attorneys) is really going to put his efforts now into the motion for acquittal. That’s no doubt tough also, but you have a better chance on appeal – at least you have something objective to argue – it just wasn’t a crime! So I bet he doesn’t waive oral argument on the motion for acquittal!

    Remember … we have a pretty high accuracy rate for the predictions made here … I would say!

    Liked by 2 people

    • R West says:

      This is what Martin should be arguing: He settled the claims with his investors (or most of them). They agreed to take Retrophin stock in a reworked deal and they thus they don’t have a complaint. He took stock from Retrophin, but he wasn’t convicted of it. That argument might not work in every Federal Circuit, but in the Second Circuit it might: Focus on this language from the opinion below: “Thus, in those circuits the Rule does not bar the introduction in a criminal proceeding of evidence of a settlement.”

      Rule 408 (of the Federal Rules of Evidence) provides in pertinent part:
      Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.
      Fed. R. Evid. 408. Pursuant to Fed. R. Evid. 1101(b), the Federal Rules of Evidence “apply generally . . . to criminal cases and proceedings.”
      Our circuit has not yet addressed the question of whether Rule 408 applies to both criminal and civil proceedings, or whether it only applies to civil proceedings in which a party seeks to admit evidence regarding a settlement. The Second, Sixth, and Seventh Circuits have held that it applies only to civil proceedings. Thus, in those circuits the Rule does not bar the introduction in a criminal proceeding of evidence of a settlement. See United States v. Logan, 250 F.3d 350, 367 (6th Cir. 2001) (“[W]e conclude, as have the Second and Seventh Circuits, that Rule 408 does not serve to prohibit the use of evidence from settlement negotiations in a criminal case.”); Manko v. United States, 87 F.3d 50, 54-55 (2d Cir. 1996) ….”

      Liked by 1 person

      • condor says:

        Great content from you — thanks, R. West!

        It all greatly enriches the weave and weft of the complex fabric of the site….

        Now — you were right on yet another score: Mr. Brafman just asked for oral argument on acquittal — despite the long odds:

        Dear Judge Matsumoto:

        Pursuant to this Court’s February 9, 2018 Order, on behalf of Mr. Shkreli we respectfully advise the Court that he still wishes to have brief oral argument on his pending Rule 29 motion for acquittal and that we will be prepared for the oral argument to proceed at 9:30 am on February 23, 2018.

        We thank the Court for its courtesy and consideration in this and all other matters….

        Now we all know — that will be a fascinating day — just a little more than ten days off.

        Like

  3. bmartinmd says:

    Someone probably saw this Feb 6th article and posted a link. But I’ll do it here anyway: https://www.bloomberg.com/news/articles/2018-02-06/shkreli-is-still-worth-27-million-u-s-says-he-should-pay-up

    The AUSAs say Shkreli’s net worth is $27.1 million. While it’s not the $50 million Brafman claimed months ago, it’s still significant. The problem is that most of Shkreli’s net worth appears to be tied up in Turing/Vyera. So as far as Shkreli’s liquidity is concerned–he mo’ or less broke.

    Liked by 2 people

  4. R West says:

    This is getting kind of serious. Level 27 would be about 6 – 7 years prison … should have attached Martin’s Excel spreadsheet as an Exhibit .. where he got the 0 – 6 months!

    Liked by 1 person

    • condor says:

      Late Friday night order out of Brooklyn:

      …Mr. Shkreli has requested oral argument on his motion for acquittal [363]. By February 13, 2017, the parties shall advise the court if they still wish to have oral argument on the motion, or if they would prefer to rest on their written submissions. If so, the court will hold oral argument on the motion for acquittal on February 23, 2018, at 9:30 a.m., prior to hearing argument on the loss amount and the forfeiture count. Ordered by Judge Kiyo A. Matsumoto on 2/9/2018….

      Busy day, in Brooklyn for Marty, on the 23rd.

      Like

      • R West says:

        I assume he is going to argue that Martin sort of, kind of did what the government says, but that what the government says is a crime isn’t actually a crime. There’s an American Greed episode on similar facts. What the ASA said in that case was :

        “The law is clear. If an investment promoter significantly misrepresents the material facts, it’s a crime even if the promoter acted in good faith and didn’t intend for anyone to lose money.”

        Liked by 1 person

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