I.
Candella, 487 F.2d 1223, 1227 (2d Cir. 1973) (in an 18 U.S.C. 1001 prosecution, the crime
was continuing until received by the decisionmaker who ended the transaction).
As described in the statute, and charged here, it is clear that Section 1512(c)(2)
obstruction addresses interference with ongoing official proceedings, not just the
individual acts. The proceedings here could never be just a deposition, which would not
complete the crime. Rather, on the face of the statute, the crime is not complete until there
have been an obstruction of the ongoing proceeding. Fortunately, we do not need to rely
solely upon an interpretation of the text.
Obstruction of justice under Section 1512 was not considered a continuing
offense by all circuits in the past. See United States v. Moore, 582 F.Supp. 1575, 1577
(D.D.C. 1984) (witness tampering, Section 1512). However, Congress enacted the special
venue provision [18 U.S.C. 3237(a)] expressly to overrule these cases with respect to
Sections 1503 and 1512. . . . United States v. Trie, 21 F.Supp.2d 7, 18 (D. D.C. 1998). It is
axiomatic that Section 1503 is a continuing offense for the purposes of calculating the statute
of limitations. United States v. Berardi, 675 F2d 894, 898 (7th Cir. 1982); United States v.
Ruggiero, 1986 WL 15555, at *4 (E.D.N.Y. October 15, 1986); United States v. Peterson,
544 F.Supp.2d 1363, 1372 (M.D. Ga. 2008). 1 For the purposes of this analysis, there are no
meaningful differences between Sections 1503 and 1512(c)(2). The government has found no
cases that treat Section 1512 differently than 1503 for these purposes. Indeed, the legislative
history indicates that Congress intended both 1512 and 1503 to be treated as continuing
offenses. Trie, 21 F.Supp.2d at 18. Therefore, in light of the caselaw about Section 1503,
the statutory history of Section 1512 and the manner in which the crime was charged here,
the offense is continuing.
The government submits that Section 1512(c)(2), just like Section 1503 in the
same chapter, is a continuing offense that was not completed until the false sworn statements
were received by both the SEC and the judge, thereby ending the official proceeding.
For this reason, we ask that the Court reconsider its September 17, 2015 order and reinstate
Count 23.
II.
Moreover, this Circuit has already noted how an individuals acts can have multiple
obstructive effects through time. United States Reich, 479 F.3d 179, 185-186 (2d Cir. 2007)
(discussing how a single forged judicial order continued to cause obstructive effects for
months after its creation).
fraudulent promotion of several penny stocks; and concluded on December 8, 2010, when
United States District Judge David O. Carter entered a judgment against Sahachaisere.
The Courts order suggests that Sahachaiseres only action in furtherance of
this scheme was the false testimony on June 17, 2009. That is incorrect. First, from 2009 to
2011, Sahachaisere discussed his Moneyline account in 7 phone calls that have been marked
for admission during trial. Third, on October 30, 2009, in connection with the SYNW
promotion, Sahachaisere expressly discusses his deposition with co-conspriator Mohammad
Dolah. See Exhibit 428. Second, on April 12, 2010, Sahachaisere submitted a false and
misleading sworn affidavit to the SEC. See Appendix A 2. In that affidavit, in response to a
question asking him to list all securities or commodities brokerage accounts and accounts at
banks or other financial institutions under your control; in which you have or had a beneficial
interest; or to which you were a signatory since January 1, 2007, Sahachaisere listed 37
separate accounts from multiple countries. Sahachaisere omitted his Costa Rican Moneyline
account from that list.
However, as shown in governments exhibits 845, 846 and 847, Sahachaisere
made more than a hundred transactions relating to the stocks charged in this indictment with
the Siam Capital Partners account that he lied about to the SEC. Sahachaisere also opened
a personal account into which he began transferring stock and money on January 14, 2010.
See Government Exhibit 847. On March 17, 2010, Sahachaisere withdrew more than
$10,000 from his Moneyline account that he received from the sale of SYNW stock. Thus,
the April 12, 2010 Sahachaisere affidavit lied twice about his brokerage accounts, both of
which he was actively using at the time.
These ongoing activities were not the end of the obstruction. The government
will provide testimony by multiple witnesses that they utilized Moneyline, a Costa Rican
company, specifically to avoid scrutiny by United States regulators. They will also testify
that Moneyline itself utilized multiple shell companies so that none of its disbursements or
deposits could be directly traced. All of these actions continued into 2011.
Moreover, Sahachaisere reintroduced his false and misleading statements into
the SEC proceeding. On or about July 9, 2010, the SEC filed a civil complaint against
Sahachaisere and Investsource for the fraudulent promotion of several penny stocks. On or
about November 15, 2010, based in part upon the June 17, 2009 testimony, Sahachaisere
entered into a consent judgment with the SEC. Indeed, the SEC Consent Order, which is
endorsed by Sahachaisere, expressly states that the settlement is made relying upon sworn
deposition testimony and affidavits to decide the SECs pending motion for disgorgement.
Those were two of the false and misleading statements Sahachaisere made as part of his
obstruction. On December 8, 2010, United States District Judge David O. Carter entered a
judgment in reliance upon the November 24, 2010 consent, thereby ending the official
2
The government received this affidavit on September 18, 2015. We are marking it
for trial as government exhibit 79.
proceeding. Again, Judge Carter stated that he would rely upon deposition testimony and the
affidavits in determining the SECs pending motion for disgorgement from Sahachaisere.
For this reason, the government submits that the continuing offense of
obstruction continued long after the deposition.
The Courts September 17, 2015 order expressed concern that an offense could
continue forever. However, that concern is unfounded. Congress intended the crime to be a
continuing offense, Trie, 21 F.Supp.2d at18, which is tied to the official proceeding. The
obstruction cannot continue past the SEC proceeding, which ended in this case on December
8, 2010. Therefore, the Courts concern should be addressed by the clear congressional
intent.
III.
The government anticipates that the central issue at this trial will be
Sahachaiseres knowledge of the securities frauds, not that they occurred. Therefore, even if
the Court reaffirms its dismissal of Count 23, which it should not, Sahachaiseres sworn false
statements regarding his income from promoting RSGR, RNER, SYNW and TMHO
constitute direct evidence of his consciousness of guilt. Prior false and misleading
statements constitute highly probative and admissible direct evidence of knowledge and
intent. See United States v. Perez, 387 F.3d 201, 209 (2d Cir. 2004). Moreover, [f]alse
exculpatory statements have independent probative value regardless of whether a defendant
testifies on his own behalf. United States v. Strother, 49 F.3d 869, 877 (2d Cir. 1995); see
United States v. Scheibel, 870 F.2d 818, 822 (2d Cir.1989) (although false exculpatory
statements cannot provide the sole basis for a conviction, they are evidence of a
consciousness of guilt, which can be considered with other evidence in determining guilt or
innocence).
While a 403 analysis still applies to this type of evidence, Perez, 387 F.3d at
209, the government submits that this evidence is clearly highly probative, id. (affirming
decision to include false statements where the trial concerned the defendants state of mind).
Indeed, in Perez, the Second Circuit was primarily concerned with whether the false
statements were accompanied by violence, which is not the case here. Id. In the instant case,
Sahachaisere gave multiple false statements under penalty of perjury about the Moneyline
brokerage accounts that he utilized in the instant case. He made those false statements at the
same time that he was promoting RSGR, RNER, SYNW and TMHO and being paid in
shares of those stocks. The deposit of those shares and Sahachaiseres liquidation of the
same all occurred in the Costa Rican brokerage house that he lied about under oath. Those
lies did not occur years later, they occurred during the charged conspiracy and were
referenced in the emails and phone calls that will provide much of the evidence in this trial.
If Sahachaisere had no knowledge of the fraudulent promotion, why would he lie about how
he was paid for these promotions? The jury should examine this vital evidence.
Advice of Counsel
Conclusion
/s/
Christopher A. Ott
Assistant U.S. Attorney
(718) 254-6154
Attachments:
Appendix A (via hand delivery to chambers and email only).
cc: