Completely back in the saddle here, and overnight — fittingly, leading into “Fat Tuesday 2018” — Mr. Brafman has filed his five page PDF file of a sur-reply, on how much ought to be forfeited.
And to no one’s surprise, he argues zero dollars ought to be forfeited.
As I’ve said previously, the able AUSAs have the better of the argument here. More precisely, a rule requiring each defrauded investor to testify (as is Mr. Brafman’s proffered position), in a criminal felony securities fraud matter, in order to allow the government to forfeit the proceeds from the fraud… makes no sense at all.
In many criminal securities fraud cases (think Bernie Madoff, for example), there are hundreds — if not thousands — of defrauded investors. If the law is that each of these must testify, in order to prove up the loss, and allow forfeiture — the Brooklyn and Manhattan federal district courts would hear perhaps five such cases a year. The trials would take the better part of a year. That is simply preposterous.
Once convicted of the crime of defrauding one investor by jurisdictional means, all investors in that class ought to count toward forfeiture calculations — that is simply common sense.
If Marty thought certain investors ought to be excluded from that class — perhaps he ought to have put on a defense case — to that effect.
So… he has effectively waived the entire argument made in this five pager, in my view.
Namaste, on a clear cold crunchy snow underfoot Fat Tuesday… party on tonight, for tomorrow — as ever, is Ash Wednesday — and “only the penitent shall pass” — even if it be Valentine’s, as well.