AUSAs File REVISED Proposed Forfeiture Order — Late On Friday Afternoon…

More soon — including the full eight page (revised) proposed order… but I am runnning to catch a train, so this will have to suffice for the moment:

As directed by the Court at the February 23, 2018 forfeiture hearing, the government respectfully submits for the Court’s approval the enclosed revised proposed Preliminary Order of Forfeiture against defendant Martin Shkreli (the “defendant”).

To address issues raised by the defendant in his request for a stay of the forfeiture, the enclosed contains modifications to the proposed order originally submitted by the government when it filed its forfeiture motion on November 30, 2017. Specifically, the enclosed provides for a stay of execution and seizure of substitute assets during the pendency of any appeal, but contains terms that will preserve the availability of substitute assets in accordance with Fed. R. Crim.P. 32.2(d) and 21 U.S.C. § 853(g).

Additionally, the enclosed removes one of the substitute assets previously identified by the government which has been seized by the New York State Department of Taxation….

Of course, that is the Enigma machine.

UPDATED: From the train, I’ve now uploaded the full proposed order — it is likely to be signed pretty much as is. And yes, I think after all is said and done… Marty will be essentially… destitute.

More in about an hour. Namaste….

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39 thoughts on “AUSAs File REVISED Proposed Forfeiture Order — Late On Friday Afternoon…

    • condor says:

      I genuinely… have no idea.

      Back in December of 2016, based on the amount of evidence the government had amassed — and disclosed — I guessed that any plea deal (Marty pleaded guilty to at least one felony) would be five to seven years. The proof seemed so clear.

      Mr. Brafman was able to misdirect the jury (my opinion) into “not proved” — on all but three counts — of the original eight.

      So… I was surprised by that.

      I won’t speculate now, since we will likely know, for certain — in four days time.

      Namaste!

      Like

      • mscatherinahorowitz says:

        Yeah, only 4 days. Since I’m now taking it for granted its going to be a heavy sentence I’ve decided to try and remain detached. Just need to get that song out of my head now….oh go on, one last listen…

        Liked by 1 person

  1. R West says:

    What makes law a great profession is that the legislature makes the laws so complicated that it’s guaranteed laymen won’t be able to figure them out. Take the U.S. Sentencing Guidelines … they are so friggin’ complicated even lawyers struggle with them … and Martin’s analysis (on Youtube video) missed by a level of about 34!

    Liked by 2 people

    • aldt440 says:

      I understand you are joking, but this is a big problem. What you just described is treachery and ties in with my rule of law post a few days ago. Again, the rule of law is based on ancient and universal principles that have passed the test of time. Short term gains in the legal profession, at the expense of social stability, won’t get us anywhere. If this trend continues, we can look forward to injustice, lack of respect for the law, severe economic damage, social unrest, etc.

      In the United Kingdom, the rule of law has recently been written into statute. The Constitutional Reform Act, which reorganizes the senior judiciary and transforms the role of the lord chancellor, starts with a declaration upholding the rule of law and specifies that the lord chancellor must swear to respect it. Surprisingly, the act does not define the rule of law and there is lots of fresh legal commentary we can draw from. Perhaps some of these quotes will shed light on my perspective?

      Here’s a great passage from Lord Bingham:

      The Law must be accessible and so far as possible intelligible, clear and predictable. Why must it? Criminal law is to discourage criminal behavior, and we cannot be discouraged if we do not know, and cannot reasonably easily discover, what it is we should not do. If we are to claim the rights which the civil law gives us or to perform the obligations which imposes on us, it is important to know what our rights or obligations are. Otherwise,we cannot claim the rights or perform the obligations. It is that the successful conduct of trade, investment and business generally is promoted by a body of accessible legal rules governing commercial rights and obligations.

      Lord Mansfield, father of commercial law, around 250 years ago:

      “The daily negotiations and property of merchants ought not to depend upon subtleties and niceties; but upon rules easily learned and easily retained, because they are the dictates of common sense, drawn from the truth of the case.” In the same vein, he said: “In all mercantile transactions the great object should be certainty: and therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other.”

      The European Court of Human Rights at Strasbourg has spoken to similar effect:

      “The law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case… a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”

      Liked by 1 person

      • condor says:

        I agree that an understanding of the law ought to be accessible to all — and, in the case of criminal law, it should be clear what conduct is prohibited.

        When it is not so clear, the accused should have a full defense — that reasonable people cannot discern what is allowed, and what is… a crime.

        Marty is not such a case: his attempts to hide his actions (though ham-handed and ineffectual), clearly speak to his knowing that he was violating criminal statutes.

        Onward! But we do agree — re clarity.

        Namaste….

        Liked by 1 person

      • aldt440 says:

        We’re not in dispute that he committed criminal acts. The problem is that he’s looking at 34 years!!! I never would have guessed that. Marty was way off. Even with all of the brainpower here, we couldn’t figure it out either.

        Liked by 1 person

      • condor says:

        Guilt or innocence — right? We agree that line is and was… clear.

        Length of sentence… probably ought not be one’s barometer for deciding whether a crime is “worth it”. In fact, the Guidelines (even though I disagree with them) were intended to take some of the “random walk” (by judges) out of the equation… and improve uniformity.

        We all agree the Guidelines don’t work quite as was hoped. Let’s wait and see where it really comes out.

        Namaste…

        Like

  2. R West says:

    According to the commentators, it’s very difficult to plan to appeal one’s conviction and still get a short prison sentence from the trial judge. What the trial judge wants you to say is “I admit I’m guilty, I accept full responsibility and I’m sorry.” But one can’t admit guilt and then appeal on a technicality … they can try, but the appellate courts usually don’t see any injustice once you admit guilt. So Marty’s rambling letter to the trial judge … which is sort of double-barreled – I’m convicted/made a few mistakes/but don’t feel guilty (and don’t want to screw up my appeal)… isn’t going to score many points with the trial judge!

    Liked by 1 person

    • aldt440 says:

      It’s a sadistic exercise. Baiting a convict into taking proactive steps towards reformation / rehabilitation and then subsequently denying mercy at sentencing, based on subjective factors related to the convict’s attempt at rehabilitation / reformation, is cruel and unusual punishment.

      Liked by 1 person

      • condor says:

        Hmmm. Not to put to fine a point on it — but the incentives in the criminal law should encourage truth telling, and acceptance of societal responsibilities.

        So I am puzzled as to how (exactly) it is sadistic to “bait” a convicted person — into admitting their crimes, and accepting responsibility for (in this case) harming entirely innocent investors.

        But quite a bit of your rhetoric involves blaming anyone BUT the person who committed the crimes, so I shouldn’t be too surprised here.

        Namaste…

        Liked by 1 person

  3. mscatherinahorowitz says:

    Could you explain what would have happened if Shkreli had have owned up to losing the money early on? I’m assuming the investors could have sued him. And that during that trial the people prosecuting would have to prove he took risks with their money? And he would have to pay damages.

    Liked by 1 person

    • condor says:

      Yes, yours is correct. He would have lost money, been bankrupted, and largely dealt “out of the game” on Wall Street.

      He would have been seen… as early as 2012… as a business and financial failure.

      I speculate that was something he couldn’t bear.

      So here he is — more than just a failure in business, six years later — he’s a three time felon… and destitute, in prison for a long stretch.

      I’m sorry for that… but he could have avoided this last part, entirely.

      Namaste…

      Like

      • billythekid9919 says:

        Condor, Marty would have been “out of the game on Wall St.”. But legally, losing investor money is one of the risks of investing. No? mscatherinahorowitz – I think is asking… when the OREX trade bankrupted MSMB… what if Marty would have sent out an investor letter stating: “Sorry I lost all your money”. Would he then be in any legal hot water? My take is: “no”

        Liked by 1 person

      • condor says:

        I generally agree — but we would need to see the disclosures (in writing) he provided to those hedge fund investors. If the OREX short was of the sort he said he would be making, and in a sector (health care?) he told them he’d be trading (and didn’t contradict any other announced trading policy of the hedge fund)… then there would be no legal claim.

        Quite so.

        Namaste — and a new post is up!

        Liked by 1 person

  4. mscatherinahorowitz says:

    I’m betting 8 years, which is 96 months. In my heart I’m fearful he could get the full whack. After seeing those guidelines, I even worry he’ll get 20 years. The video for the US Attorney’s office summarises the case succinctly, and perhaps explains the chain of events to dummies such as myself who don’t know anything about finance or law so we can empathise with why Marty started to weave a web of deceit. I guess he just couldn’t accept failure. Given he didn’t intend to go out of his way to take their money the Judge might have mercy. I’m not sure I can quite believe the stuff about the Retrophin sham agreements. He had quite a lot of money, I don’t see why he couldn’t have just reimbursed everyone early on. Why did he have to involve Retrophin?

    By the way, Condor, where do you get all this quality information from? And what leads you to take such detailed interest in this case?

    Liked by 1 person

    • condor says:

      Thanks Catherina — heartfelt sentiments, to be sure.

      As to the Retrophin sham agreements, he actually was very nearly insolvent the whole time — he had substantial non-liquid assets, to be sure — but as to cash or near cash… he rarely had much. So he decided to make Retrophin pay the bad debts he personally owed. That’s a classic Ponzi scheme.

      I’ll not quibble with your guess on sentence duration, as we will likely know in six days…

      All I have is public SEC and federal court records — all available to the public, online. The trick is putting the puzzle together — but securities law and regulations, M&A and capital raises in life sciences, in particular, have been my profession since law school days. Cough. That’s… a long time.

      I took an interest because about two and a half years ago, it was looking like he might skate — by deceiving the public (and his jury) on last time. So I decided to be the alter-narrative — to his carefully cultivated online / social media persona.

      And, I’m a fan of equal justice under the law, regardless of fame (or notoriety, more precisely).

      Namaste… do stop back!

      Like

      • mscatherinahorowitz says:

        I’ll definitely be stopping back.
        In your career did you continue with law? Just curious. Reading the documents has certainly made me think about what the legal world is like/what’s involved for those who practise law by trade. Seems like a career best suited to those with good nerves.

        Liked by 1 person

      • condor says:

        I do still practice law… but not at the pace I used to. I invest now… and travel, mostly.

        As to a career — good lawyers become comfortable… being… uncomfortable.

        All the best to you!

        Namaste…

        Like

      • R West says:

        Doesn’t matter what kind of law one does … it’s boring, because one has to always be right and cover every little thing. No room for mistakes … and you have the lengthy Briefs and Orders.

        It’s a lot easier and fun to take something like this, sit back and take brief pot shots .. anonymously!

        Liked by 1 person

      • condor says:

        Quite so, R West… and the “cover every little thing” is… impossible, so we get used to being uncomfortable — and hope our good judgment (as to which trivial bits may safely be ignored)… shines through..,

        Great stuff, one and all!

        Namaste!

        Like

    • R West says:

      Wait … if you’re a fan and betting 8 years, you’re not a candidate for law school.

      No matter what you think personally, a lawyer has to say:

      “Your Honor, we’re begging for mercy. Time served seems fair!”

      Liked by 1 person

      • R West says:

        There’s a lot of wild guessing here … and probably a lot is wrong … but I bet at least once a real professional … a news reporter or even a lawyer in one of the cases looked at Condor’s blog and thought: “Why didn’t we think of that?”

        Liked by 1 person

    • aldt440 says:

      Hi MSCATHERINAHORWITZ, don’t take everything in that video at face value. What those suits aren’t doing is just as important as what they are doing to enforce markets and promote commerce. Here, they are focusing on Shkreli’s case at the exclusion of far more important systemic abuses. It’s all part of the new doublespeak theatrical spectacle that substitutes for effective regulation, extracts wealth from the lower classes, and misappropriates valuable resources.

      Not only is the SEC focusing on the wrong issues, but their enforcement procedures are flawed. Processing complaints in a timely manner could have averted disaster in Shkreli’s case. A public spectacle and sensational trial is not an effective substitute for market regulation. Prison isn’t going to make Shkreli a better person either.

      Here’s a great case for some contrast and, unfortunately, it is just scratching the surface:

      https://www.sec.gov/litigation/complaints/2016/comp-pr2016-189.pdf

      This is a very simple CRIMINAL case to prove and Cooperman settled CIVILLY with the SEC for 5 Million without admitting or denying guilt! Obviously, he should be in jail but the media treats him like a respectable professional!

      Liked by 1 person

      • CagingMartens says:

        >Prison isn’t going to make Shkreli a better person either.

        Define “better”, his skillsets related to clandestine ethanol fermination/distillation and shank manufacture stand to gain significant enhancement!

        Liked by 2 people

  5. R West says:

    In addition to the “guess the sentence length” contest, there should be another prize for whichever reporter can get off the fastest tweet when the sentence is announced!

    Liked by 1 person

  6. mscatherinahorowitz says:

    I’m a fangirl of Marty’s. I hope you don’t mind, but I just wanted to dedicate a song to him. I’ve been checking this blog and the news religiously. And praying every day he’ll get a lenient sentence. Don’t want him to suffer in prison for even a day.

    Thought these lyrics were apt: “I got it harder, you don’t know how hard I got it. Stay out of my shoes, if you know what’s good for you”.

    Liked by 1 person

    • condor says:

      Your opinions are welcome here Catherina…

      We need not be disagreeable, to disagree.

      Thank you, for this — and…

      नमस्ते

      Like

    • R West says:

      “I’m a fangirl of Marty’s.” Let me guess … that’s not the Judge.

      Condor likes us to stick to the law, but here’s the truth: Judges are just human … she doesn’t like Martin! So given a chance without fear of reversal on appeal, she’s going to stick it to him at sentencing.

      Liked by 1 person

  7. aldt440 says:

    It’s going to be an epic cage match! Unfortunately, Shkreli is the only on that goes into the cage, and he has to stay in the cage. I guess you could say it’s not really a two go in one comes out sort of thing. Regardless, it will still be one of the most entertaining legal battles of the decade!

    Shkrei & Harambe

    VS

    The U.S. Attorney’s Office For The Eastern District of N.Y.

    WHO WILL WIN??

    Liked by 1 person

  8. R West says:

    Martin’s attorneys might not be paid much now. One would guess Brafman will fight on nonetheless, just to protect his reputation. It’s going to be really embarrassing if he told everyone a sentence of 0 – 6 months … and he seemed to believe it when he said it … and the sentence turns out to be 10+ years!

    Liked by 1 person

    • condor says:

      I think he will file his attorney’s lien — against the $5 million in the E*Trade account — but he is not likely to get nearly all of that…

      It will be time to pop the popcorn, in one week…

      Whoosh!

      Liked by 1 person

      • condor says:

        We already know that Marty rejected several plea deals. He blathered on, inside the press overflow room, in like the second week of his trial, on the record, at a lunch-break (before Mr. Braman came in, and literally grabbed him by the ear, and dragged him away!) — widely reported by MSM — to the effect that he had repeatedly told Mr. Brafman he would cut no deal. He was not guilty and demanded his right to trial, by jury, so he said. He openly admitted that Mr. Brafman had told him to take a plea — and he was standing firm: “no deals“. [Same diatribe in which he called the able, experienced AUSAs “the junior varsity“.] That stunt alone blew a hole (well below the water-line) in any future “ineffective assistance of counsel” claim, I think.

        Add to this that Mr. Brafman actually was able to get the jury (frankly, in a shock to my system!) to come back “not proved” on five of eight counts, despite really solid evidence on all eight. He’s a Catskill resort comedy tour, but it resonated with at least some jurors.

        So… there is that. Great question!

        Namaste…

        Like

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