Rajat Gupta's Filing for Bill of Particulars

8/3/2019 Rajat Gupta's Filing for Bill of Particulars

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Gary P. N aftalisDavid S. FrankelStephen M. SinaikoKRAMER LEV IN NAFTALIS & FRANKEL LLP1177 Avenue of the AmericasNew York, New York 10036(212) 715-9100Attorneys for Rajat K. GuptaUNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA:o. 11 Cr. 907 (JSR)- against -: ECF CaseRAJAT K. GUPTA,

Defendant.

DEFENDANT RAJAT K. GUPTA'S MEMORA NDUM OF LAW IN SUPPORT OFHIS MOTION TO COMPEL THE GOVERN MENT TO PROVIDE A BILL OFPARTICULARS AND RESPOND TO REQUESTS FOR BRADY MATERIAL

KRAMER LEVIN NAFTALIS & FRANKEL LLP1177 AVENUE OF THE AmEIUCAS NEW YORK NY 10036

X L,3 2 8 58 3 1 69

Case 1:11-cr-00907-JSR Document 17 Filed 01/03/12 Page 1 of 22


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Table of ContentsPage

Table of Authorities iiPreliminary Statement 1Argument 5I. THE GOVERNM ENT SHOULD COMPLY W ITH MR. GUPTA'SLIMITED REQUEST FOR PARTICULARS 5II. THE GOVERNMENT SHOULD PROMPTLY RESPOND TOMR. GUPTA'S BRADY REQUEST 10Conclusion 17

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Table of AuthoritiesPage(s)Cases

Brady v. Maryland,373 U.S. 83 (1963) passimDirks v. SEC,463 U.S. 646 (1983) 7Leka v. Portuondo,257 F.3d 89 (2d Cir. 2001) 3United States v. Aliperti,867 F. Supp. 142 (E.D.N.Y. 1994) 8 n.3United States v. Barnes,158 F.3d 662 (2d Cir. 1998) 5,6United States v. Bin Laden,92 F. Supp. 2d 225 (S.D.N.Y. 2000) United States v. Bortnovsky,820 F.2d 572 (2d Cir. 1987) 5, 6, 7United States v. Ganim,225 F. Supp. 2d 145 (D. Conn. 2002) 7 n.3United Skites v. 0 'Hagan,521 U.S. 642 (1997) 10United States v. Rosenthal,1991 WL 267767 (S.D.N.Y. Dec. 3, 1991) 8 n.3Constitutional Provisions, Statutes and RulesU.S. Const. Fifth Am endment 1U.S. Const. Sixth Amendment 115 U.S.C. 78j(b) 717 C.F.R. 240.10b-5 7Fed. R. Crim. P. 7(f) passim1,13 2858316.9



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Table of Authorities (Cont'd)Page

Fed. R. Crim. P. 16 1, 2, 6Fed. R. Crim. P. 17 15

Other Authorities

Dep't of Justice, United States Attorneys' Manual 9-5.001(B)(1) (2009) 3Dep't of Justice, United States Attorneys' Manual 9-5.001(C)(1) (2009) 3Dep't of Justice, United States Attorneys' Manual 9-5.001(D)(1) (2009) 3

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Defendant Rajat K. G upta respectfully submits this Memorandum of Law, and theaccompanying declaration of Stephen M. Sinaiko, Esq. ("Sinaiko Decl."), in support of hismotion to compel the govermnent to (a) provide a bill of particulars, pursuant to Fed. R. Crim. P.7(f) ("Rule 7(f)"), and (b) comply with its obligation to produce exculpatory evidence under theFifth and Sixth Amendments to the United States Constitution and under Brady v. Maryland, 373U.S. 83 (1963), and its progeny.

Preliminary StatementThis case is on a very tight schedule, with trial set to begin on April 9, 2012 -- a

date the Court has said is "set in stone and will not move." (Exh. B at 6). 1 At arraignment onOctober 26, the government stated that it needed approximately one week to complete its Rule16 discovery, and the Court accordingly set a deadline of November 2. (Id. at 3-4). The Courtthen turned to the government's Brady obligations, stating:

[The court can't set an overall date for Brady disclosures becauseit depends on the kind of disclosure. Some disclosures requiremuch more investigation by the defense than others. But certainly

would expect that virtually all Brady material other than Gigliomaterial would be provided to the defense no later than twomonths before trial.

(Id. at 7). In light of the schedule set by the Court, Mr. Gupta has repeatedly sought informationhe needs in order to prepare his defense, none of which has been provided by the government.

On N ovember 17, 2011, M r. Gupta made a focused request for particulars seekingclarification of a number of vaguely worded allegations in the indictment. (Exh. C). In response

to that request, the government has engaged in a pattern of delaying tactics. For example: The government ignored Mr. Gupta's particulars request for more thantwo weeks. Only after we wrote a second time did the govermnent

c'Exh. " refers to the exhibits annexed to the Sinaiko Decl. "Ind. " refers to theindictment, a copy of which is annexed as Exh. A .

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respond on December 2 that it would advise the defense of its positionson those requests the following week. (Exhs. D, E, F). When the government failed to respond as it had promised, we madetwo further written requests, on December 8 and December 15. (Exhs.G, II). Shortly before 5:30 p.m. on D ecember 29 -- almost another month afterits December 2 correspondence -- the government delivered a letter inwhich it expressed, for the first time, the view that "[i]n light of the

extensive discovery that has already been provided," Mr. Gupta is "notentitile[d] .. . to a bill of particulars." (Exh. I at 1).

In its December 29 letter, the government stated that, despite its viewthat Mr. Gupta was not entitled to a bill of particulars, it wouldnevertheless "provide particulars" (although, by giving no specifics, itleft open the possibility that it would refuse some of Mr. Gupta'srequests), but would not do so until some seven weeks' later on February15, 2012 -- nearly three months after Mr. Gupta's request, and less thantwo months in advance of the firm April 9 trial date. (Id.).

Moreover, although the government offered on December 2 to providea list of co-conspirators, subject to an appropriate protective order -- anoffer Mr. Gupta promptly accepted -- it never did so and insteadreversed field in its December 29 letter, saying it would not supply thelist of co-conspirators until some seven weeks later, on February 15,again months after Mr. Gupta's request and shortly before trial. (Exhs.F, G; Exh. I at 1-2).

The government's conduct with respect to its Brady obligations has been similarlydilatory. By November 22, approximately a month after arraignment, the government --although it has produced several million pages of Rule 16 discovery material -- had not made anyBrady disclosures. Accordingly, Mr. Gupta wrote the government that day, setting forth anumber of specific requests for information potentially favorable to the defense, either withrespect to the substantive charges or for impeachment. (Exh. I). The November 22 letterpointed out that the early February date for Brady materials the Court set at arraignment was anoutside deadline for the completion of Brady disclosure, rather than a due date on which all suchdisclosure was to occur, and that Mr. Gupta would need sufficient time to conduct follow-up

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investigation after receiving the government's Brady disclosures. The need for follow-up time isespecially acute with respect to a number of the particular items, such as potentially exculpatorystatements of witnesses, that Mr. Gupta requested on Novem ber 22.

Mr. Gupta's November 22 letter also pointed out that thegovernment is wellpositioned to make prompt Brady disclosures in this case, not just because of the concrete andspecific nature of the requests, but also because the parties had engaged in extensive pre-indictment discussions, "in which [the defense] identified matters we believed were exculpatoryof Mr. Gupta." (Id. at 1). Thus, the government has long been on notice of certain of Mr.Gupta's specific defenses. Indeed, it is clear that the government responded to suchpresentations by the defense by then investigating them for several months prior to indicting.

After more than two weeks passed with no response to his November 22 requestfor Brady material, Mr. Gupta again wrote to the government on December 9, reiterating theneed for prompt Brady disclosure:

[Me have requested prompt production of these materials in orderto have an adequate opportunity to conduct any necessaryinvestigation, and to make use of them at trial. See, e.g., Leka v.Portuondo, 257 F.3d 89, 101 (2d Cir. 2001) (finding Bradyviolation where potentially favorable witness testimony wasdisclosed late and noting that "the delayed disclosure of evidencetends to impair the opportunity of the defense to use it"). In lightof (i) our extensive pre-indictment conversations, in which weidentified specific exculpatory matters, and (ii) the specific andfocused requests we have made, the government should be in aposition to provide Brady material now. See also United StatesAttorney's Manual 9-5.001(B)(1) (requiring federal prosecutorsto "take a broad view of materiality and err on the side ofdisclosing exculpatory and impeaching evidence"); 9-5.001(C)(1) (requiring federal prosecutors to take a similarly broadview of what information is exculpatory); and 9-5.001(D)(1)(exculpatory information must be "disclosed reasonably promptlyafter it is discovered").Mr. Gupta's motions are due in just over three weeks, on January3, 2012. Particularly in light of this fast approaching deadline and

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the upcoming holidays, please let us know promptly when we mayexpect to receive the information we have requested. If thegovernment declines to provide any of the requested information,please so advise, so that Mr. Gupta does not have to wait until thelast minute to know whether, and to what extent, he will need toseek relief from the Court.

(Exh. K at 1-2). To date, the government still has not responded to Mr. Gupta's November 22and Decem ber 9 letters.

By its conduct, the government has managed to consume seven weeks since thetime of Mr. Gupta's initial request for particulars and has provided literally nothing to thedefense -- not even a statement of its position, including any reasons it may intend to invoke fornot complying. As a result, the government has potentially pushed resolution of these issueswell into 2012, and created the possibility of unnecessary and wasteful motion practice in theweeks before trial.

There is no legitimate reason for the government's delay. At a proceeding beforethe Court on November 18, in support of the its request to defer depositions in the parallel SECcase, the government suggested that it could be ready for trial in January 2012. (Exh. L at 7).Given that representation, it is inconceivable that the govermnent is unable at this juncture toprovide the focused set of particulars and Brady disclosure that the defense has requested.Rather, the government is inappropriately attempting to use the Court's recent order setting aJanuary 31, 2012 deadline for the filing of any superseding indictment as a tool to avoid, for aslong as possible, providing particulars and Brady material, thereby prejudicing Mr. Gupta bydenying him a reasonable opportunity to conduct follow-up investigation and prepare hisdefense.

Accordingly, and with trial now barely three months away, the government'sdelaying tactics are prejudicing Mr. Gupta's ability to prepare for trial, requiring us reluctantly to

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seek the Court's intervention. As we demonstrate in Point I, the Court should direct thegovernment to supply promptly the particulars Mr. Gupta has requested, so as to provide himwith a clear understanding of the charges against him. In Point II, we show that the informationMr. Gupta requested on November 22, including statements of witnesses interviewed by thegovernment (and the SEC), whether or not they are anticipated to be witnesses at trial, is plainlywithin the scope of the government's Brady obligations. In each case, the government surelyknows if it has such information. Moreover, many of Mr. Gupta's Brady requests cover mattersthat we and the government discussed extensively pre-indictment, and that were the subject ofgovernment investigation -- investigations that, we believe, yielded substantial informationfavorable to the defense. Thus, we respectfully submit that the government should not delayuntil the last possible moment. Rather, the Court should direct the government to respondpromptly to each of Mr. Gupta's Brady requests, and to produce responsive witness statements orother information, so that Mr. Gupta will have a meaningful opportunity to use that material toconduct further investigation and prepare his defense.

ArgumentI. THE GOVERNMENT SHOULD COMPLY WITH MR. .GUPTA'S LIMITED REQUEST FOR PARTICULARS

Under Rule 7(f), a defendant may seek a bill of particulars to enable him "toprepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he beprosecuted a second time for the same offense." United States v. Bortnovsky, 820 F.2d 572, 574

(2d Cir. 1987). A defendant is entitled to a bill of particulars where necessary "to provide [him]with sufficient detail to defend adequately the charges against him." United States v. Barnes,158 F.3d 662, 665 (2d Cir. 1998). The government cannot "fulfill its obligation merely byproviding mountains of documents" in discovery and leaving the defendant to sift through them.

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Bortnovsky, 820 F.2d at 575; see also, e.g., United States v. Bin Laden, 92 F. Supp. 2d 225, 234(S.D.N.Y. 2000) ("It is no solution to rely solely on the quantity of information disclosed by thegovernment; sometimes, the large volume of material disclosed is precisely what necessitates abill of particulars.").

That is what confronts Mr. Gupta here. Between the October 26 arraignment andthe November 2 deadline for Rule 16 discovery, we received approximately 2.2 million pages ofdocuments from the government, the vast majority of which we had not previously seen (i.e.,through discovery in the SEC administrative proceeding before it was dismissed), and onNovember 14 we received thousands of intercepted telephone calls. Since November 2, thegovernment has made ten additional productions of material obtained by grand jury subpoenas,from ten different custodians, totaling over 200,000 additional pages. Given the government'srepresentation to Mr. Gupta and to the Court that it intends to make further production "Ns theGovernment obtains additional documents pursuant to its investigation and/or preparation," andits continuing use of the grand jury process to obtain information, it appears that more documentsare forthcoming. (Exh. M at 1). 2

The millions of pages of discovery Mr. Gupta has already received from thegovernment -- to say nothing of the additional materials we expect to receive -- are just the sortof "mountain of documents" that, as the Second Circuit observed in Bortnovsky, cannotsubstitute for a bill of particulars. That is particularly so given that the firm April 9, 2012 trialdate in this case is now just over three months off. Under these circumstances, as wedemonstrate, the Court should direct the government to provide the requested particularspromptly.2 We were recently advised of yet an additional grand jury subpoena, to M cKinsey, whichapparently will result in the production of a substantial volume of yet m ore documents.

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Alle ed Benefit to Mr. Gu taIn order to establish a criminal violation of Section 10(b) and SEC Rule 10b-5

based on alleged tipping, the government must prove that the defendant received a personalbenefit in exchange for disclosing material, non-public information. See Dirks v. SEC, 463 U.S.646, 663-64 (1983). As to this element of the offense, the indictment alleges in generalizedfashion that there were "numerous business dealings" between Mr. Gupta and Rajaratnam; thatMr. Gupta "provided the Inside Information to Rajaratnam because of [hisi friendship andbusiness relationships with Rajaratnam"; and that Mr. Gupta "benefitted and hoped to benefit"from those relationships "in various ways, some of which were financial." (Ind. im 8, 25). Butin order to prepare his defense, Mr. Gupta needs to know how he is accused of benefiting by hisalleged disclosure of inside information. The bare statements in the indictment on that subjectare insufficient. Consistent with authority in analogous contexts, the Court should direct thegovernment to particularize those allegations, as requested in paragraphs 1, 2, 3 and 12 of theRequest. 3

3 See, e.g., United States v. Ganim, 225 F. Supp. 2d 145, 156 (D. Conn. 2002) (grantingrequest for bill of particulars 'detailing any benefits that defendant allegedly received,solicited or procured in connection with purported kickback and bribery scheme); UnitedStates v. Aliperti, 867 F. Supp. 142, 149 (E.D.N.Y. 1994) (granting motion for bill ofparticulars in extortion case and reasoning that "[b]ecause the Government will be requixedto prove at trial that Defendants obtained payments to which they were not entitled, knowingthat the payments were made in return for official acts . . the Court finds that Defendants areentitled to some particularization in this regard, in order to adequately prepare a defense andto avoid unfair surprise at trial"); United States v. Rosenthal, 1991 WL 267767, at *7(S.D.N.Y. Dec. 3, 1991) (compelling government to provide particulars regarding "favorableinvestment opportunities" allegedly provided as improper inducement in commercial briberycase).

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Identities of Alleged Co-Conspirators andOther Persons Referenced in the IndictmentThe government agreed over a month ago, on December 2, that it would provide

Mr. Gupta with a list of alleged co-conspirators referenced in paragraphs 26, 27, 28(d) and 29(a)-(y) of the indictment, as well as persons referenced in paragraph 11 of the indictment as having"participated in" and "effectuated" the alleged fraudulent scheme, subject to the terms of anappropriate protective order. Mr. Gupta accepted those terms on December 8, and asked that thegovernment supply a proposed protective order immediately. (Exhs. F, G). The governmentfailed to do so. Instead, nearly a month later on the eve of the motion due date on December 29,the govermnent advised without explanation that it would not fulfill its prior commitment butinstead proposed to give the defense a list of co-conspirators on February 15, 2012 -- with thepossibility of amendments after that, presumably meaning the government could add new namesto the list for the first time as late as two weeks before trial. (Exh. I at 1-2). There is nolegitimate reason for this delay. The govermnent has been investigating this matter for severalyears -- as well as, of course, the Rafaratnam case, which included a number of the sameallegations -- and the government well knows whom it considers to be co-conspirators. So thatMr. Gupta may proceed with the investigation of his defenses to the charges against him, werespectfully request that the Court direct the government to supply immediately the particularssought in paragraphs 5, 13, 14, 15 and 17 of the R equest.

The "Other Companies" in WhichRajaratnam Allegedly TradedCount One of the indictment accuses Mr. Gupta of providing Rajaratnam with

"Inside Information" -- a term defmed to mean "material, non-public information relating toGoldman Sachs and P&G" -- and alleges that, on the basis of such "Inside Information,"Rajaratnam "caused the execution of transactions" in the securities of Goldman Sachs, P&G and

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"other companies." (Ind. 11(c)). But the indictment provides neither information about theidentity of these "other companies," nor the dates, times and quantities of securities traded.Moreover, the discovery Mr. Gupta has received to date includes records of a huge number oftrades that Galleon conducted, in the securities of a huge number of companies, during the periodat issue. In addition, the government has produced thousands of call intercepts resulting from thewiretap of Rajaratnam's cellular telephone, which may or may not contain any evidence bearingon this allegation. Mr. Gupta should not have to comb through the massive discovery he hasreceived in hopes of figuring out which trading in "other companies" the government may havein mind -- assuming it would be possible to do so at all. Rather, the Court should direct thegovernment to provide details concerning the trading in securities of "other companies" to whichparagraph 11(c) of the indictment refers, as requested in paragraph 6 of the Request. 4

Allegations in the Indictment as to theDuties Mr. Gupta Allegedly BreachedIn order to establish a criminal insider trading violation against an alleged tipper,

the government m ust prove that the defendant disclosed material, non-public information inbreach of a duty. See United States v. 0 'Hagan, 521 U.S. 642, 652 (1997). Here, the indictmentasserts that Mr. Gupta breached his obligations as a member of the Goldman Sachs and P&Gboards "to maintain the confidentiality of information received in connection with [his] serviceas [a] director[], and . . . not to provide the information to others for the purpose of securities4 In addition, if the government is alleging that Raj aratnam caused trades to be do ne inGoldman or P&G securities or options, other than those identified in the indictment, on'the

basis of "Inside Information" Mr. Gupta purportedly provided, we respectfully submit thatthe Court should direct the government to identify those trades as well. Likewise, the Courtshould direct the government to supply particulars, requested in paragraphs 7, 8, 9, 11, 15, 16and 17 of the Request, concerning (a) the identities of the particular Galleon funds thatconducted the trades referenced in the indictment, (b) the amoun t of the avoided lossreferenced in paragraph 22 of the indictment, and (c) the details of the transaction inGoldman Sachs call options referenced in paragraph 29(g) of the indictment.

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trading." (Ind. 1111 9, 10). Mr. Gupta is entitled to know precisely which obligations he isaccused of breaching. That is particularly so to the extent the government intends to rely at trialon policies either Goldman Sachs or P&G may have adopted, rather than on the fiduciary dutyimposed by law on company directors. Accordingly, the Court should direct the government toidentify the particular sources of the obligations it claims that Mr. Gupta breached, in accordwith paragraph 4 of the Request.II. THE GOVERNMENT SHOULD PROMPTLY

RESPOND TO MR. GUPTA'S BRADY REQUESTMr. Gupta's November 22 letter enumerated a series of specific Brady requests,

tied directly to allegations in the indictment or to specific defenses we had previously discussedwith the government, and in some cases both. Absent any response from the government, thedefense does not know whether the govermnent is going to be making any Brady disclosures(and if so, when), or instead will say it does not have the information Mr. Gupta requested ordispute whether that information comes within Brady. Moreover, if the government intends towait until the outside deadline of two months before trial for disclosure of "virtually all Bradymaterial other than Giglio," the defense is potentially being prejudiced in its ability to conductfollow-up investigation. Here, too, the government has put us in a Catch-22 bind: We believe,based both upon our own work to date and our discussions with the government, that thegovernment is in possession of information that would be helpful to the defense, and Mr. Gupta'stailored Brady requests focus on areas where we believe this to be true. Yet because thegovernment has not engaged with us at all on Brady -- failing even to state its position -- weeamiot identify with certainty what investigation we w ill need to pursue based on leads suggestedby Brady disclosures.

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Given the fast approaching trial date, we are asking the Court to require thegovernment to respond to each of our Brady requests promptly. The requests are specific andfocused, and they call for information which, if it exists, is known to the government. Moreover,the requested information is clearly favorable to the defense within the meaning of Brady, asillustrated by the examples summarized below. Accordingly, the government should makedisclosure now, so that the defense has sufficient time to conduct follow-up investigation. 5

False Statements of Government Witnesses(Request Nos. 1, 15-18, 22)The government surely has vetted the proffers of its potential witnesses, and just

as surely has closely investigated their sworn statements such as tax returns, loan applicationsand the like. Indeed, it appears that a number of these witnesses testified at the Rajaratnam trial,or were prepared to do so. In at least one instance made known in the Rajaratnam trial, thegovernment determined that a cooperating accomplice witness had lied, and the governmentmade a Brady disclosure to the defense. 6 Under these circumstances, the government has longbeen in a position to respond to this core Brady request (Request No. 1).

The government will seek to introduce three hearsay statements by Rajaratnamagainst Mr. Gupta at trial, in effect making Rajaratnam a government witness for these

Rather than go through all of the requests in our November 22 letter, we have sought todemonstrate, by listing categories of requested information and summarizing some of thespecific requests within those categories, that Mr. Gupta's demand is specific and calls forindisputably exculpatory information. Each of those requests therefore merits a specificresponse, rather than a mere boilerplate statement that the government knows its obligationsand will abide by them.

6 See Government's Further Opposition to Rajaratnam's Trial Objections to CertainAnticipated Evidence Regarding Information Allegedly Conveyed to Rajaratnam, in US. v.Rajaratnam, S2 09 Cr. 1184 (RJH) (Feb. 14, 2011) ("Government's Further Opposition")(Exh. N).

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purposes. 7 Request no. 15 asks for information casting doubt on any of these statements. Onceagain, the government surely knows if any of the witnesses it has interviewed (includingwitnesses it does not intend to call at trial) provided information undermining its allegation thatRajaratnam was refening to Mr. Gupta, by, for example, indicating that Rajaratnam made thetrades for some other reason or based on another source. Alternatively, a witness may have saidthat Rajaratnam exaggerated or lied about his sources of information. Indeed, as the governmentitself has argued, it is frequently the case that co-conspirators lie or exaggerate to one anotherduring the course of their scheme, for a variety of reasons, including to impress or promote theirimportance to the enterprise. 8 Accordingly, the government should turn over any informationtending to show that "Rajaratnam boasted about or exaggerated his contacts and connectionswith prominent persons or his sources of information, including his alleged sources of materialnonpublic information." (Exh. J at 6). 9

Request no. 17 seeks statements by the government, other than those made incourt in the Rajaratnam case, that Rajaratnam is untrustworthy or untruthful. We know of atleast one such extrajudicial statement by the government: after Newsweek magazine published aninterview of Rajaratnam in its October 23, 2011 edition, a representative of the United States7 In each of these statements, Rajaratnam puportedy told a co-conspirator he had receivedmaterial nonpublic information and, according to the government, referenced Mr. Gupta(although not by name) as the alleged source of the information. (Ind. IJ 17, 21, 24).8 Government's Further Opposition, at 2 (noting that government witness Ali Far wasmotivated to tell his co-conspirator Rajaratnam "he had inside information when he did not,"

because he needed to "exaggerate in certain instances about what he had done to uphold hisend of the illegal agreement," and stating generally that "this is not the first time that twoindividuals engaged in crimes together were less than perfectly honest with one another")(Exh. N).

9 Request No. 16 asks for similar information relating to the supposed statement byRajaratnam, alleged in paragraph 29(a) of the indictment, that he learned from Mr. Guptainformation regarding P&G's sale of its Folgers coffee business.

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Attorney's Office stated that "[a] number of his assertions [in the interview] are inaccurate," anda representative of the FBI said that statements Rajaratnam attributed to the officers who arrestedhim "were never uttered." (Exh. 0). Any such statement, in which the government expressed itsown doubts about Rajaratnam's veracity -- or simply that he is not to be trusted, even if stoppingshort of calling him a liar -- would obviously be helpful to the defense, and equally obviously isknown to the government.

Request no. 18 asks for statements by the government in the Galleon, Rajaratnamor "expert network" insider trading cases in which the government said one of its witnesses liedor exaggerated in a wiretapped conversation. As noted, the government said this was true ofaccomplice witness Ali Far. If the same is true of another witness on tape -- in other words, aconspirator in exactly the same circumstance as Rajaratnam, captured on tape -- the governmentshould provide that information to the defense. We are not asking the government to search thetapes, only for prior instances where one of its witnesses was caught falsifying or exaggeratingon tape and the govermnent said so. 1

Witness Statements That Mr. Gupta Was Not theSource of Any Inside Information and SomeoneElse WasHere, too, the government surely knows if any witness pointed to a source of

inside information other than Mr. Gupta, or contradicted the assertion of a government witnessthat Mr. Gupta was in fact the source of inside information to Rajaratnam. (Request No. 2).Similarly, the government knows if any witness stated that Rajaratnam was or appeared to be inpossession of Goldman or P&G inside information other than the instances alleged in the

10 Similarly, request no. 22 asks for statements by the government or SEC to any witness or hislawyer tending to doubt the credibility of the witness or any of his statements, or indicatingthat the witness might be subject to criminal or regulatory charges. (Exh. Jr at 8).

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indictment (Request No. 4). A statement by a witness saying any of these things would plainlybe Brady material.

FINRA and SEC Investigations ofthe Trading in the hidictmentAs the Court well knows, trading that may be regarded as suspicious in advance

of public disclosure of significant company news often triggers investigation by FINRA oranother self-regulatory organization such as a stock exchange, or by the SEC. Request no. 8 asksfor documents relating to any such investigation, limited to very narrow periods covering theevents in the indictment: trading in Goldman securities (June 9-17, September 22-23 and O ctober15-31, 2008); P&G securities (January 26-29, 2009) or P&G and Smuckers (May 28-June 4,2008).

Once again, the request is narrowly tailored, in two respects. If any suchinvestigation did in fact occur, the government can easily and simply obtain the file and produceit. And this request captures information plainly within Brady. The information provided toFINRA or other investigatory body may well point away from Mr. Gupta. Indeed, the range ofalternative explanations for trading in advance of one or more of those five announcements --whether suggestive of a different information source or some other reason for the trading, andwhether such explanation reflects misconduct or not -- is vast.

Indeed, this request illustrates especially well the need for prompt Bradydisclosure. If there was in fact any such prior investigation of the trading, we are likely to needto follow up with witnesses and Rule 17 subpoenas, and perhaps other avenues of inquiry. Thisall takes time, and we are fast approaching trial.

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The July 29, 2008 CallAmong the purported overt acts in this case is a July 29, 2008 telephone call, (hid.

29(j)), which also featured prominently in the Rajaratnam trial. During the call, Rajaratnamdiscussed with Mr. Gupta the possibility that Goldman Sachs might purchase a comm ercial bank.At trial in Rajaratnam, the government elicited testimony from Goldman Sachs CEO LloydBlankfein that discussion at the June 2008 Goldman Sachs Board meeting, regarding whetherGoldman might purchase a commercial bank, was "confidential" and "secret." (Exh. Q at 1731).The government argued in summation that Mr. Gupta breached his duties "not to discloseconfidential discussions taking place at the board meetings until the com pany publicly announcesit." (Exh. P at 5242). In sum, the government regards the call as central and supportive of itscase, and harmful to Mr. Gupta.

As noted, prior to the indictment, we engaged in extensive discussions with thegovernment regarding the facts of the case. Among other things, we argued that there issubstantial reason to believe that the fact that Goldman considered purchasing a commercialbank was not secret at all, but instead was public in advance of the July 29 call.

Accordingly, Request no. 19 asks for documents or information reflecting ortending to show:

(i) that the information relating to Goldman discussed in a telephone callon July 29, 2008, at approximately 5:39 p.m. (see Indictment 29(j)), hadbeen publicly disclosed by Goldman, prior to the time of the call; or (ii)that any member of the Goldman Board of Directors or seniormanagement was aware that such information had been publicly disclosedby Goldman.

(Exh. J at 7).

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We presume, but of course cannot know for certain, that the governmentinvestigated these matters, either before or after our discussions. The information we requestedshould be readily available, and its status as Brady material would appear to be indisputable.

Deteriorating Relationship BetweenRajaratnam and Mr. GuptaWe also discussed with the government at length (and did so earlier with the SEC

in the Wells process) that the relationship between the two men deteriorated in 2008, in partbecause of Rajaratnam's handling of the Voyager Capital Partners investment fund (see Ind.

8(b)), culminating in Mr. Gupta losing his entire $10 million investment. We have argued thatMr. Gupta's concerns during the relevant period about Rajaratnam's stewardship of the Voyagerinvestment undercut the allegation he would have been motivated to disclose material nonpublicinformation.

The government has investigated Voyager, and the relationship between Mr.Gupta and Rajaratnam, extensively. Request no. 9 seeks any evidence (i) of this deterioration ofthe relationship, including statements by witnesses (who were surely asked about it); (ii) negativestatements by or attributed to Rajaratnam, regarding Mr. Gupta or the relationship (again,witnesses who know both men were surely asked); and (iii) the termination of discussions ofanother potential business venture between them, referred to in paragraph 8(d) of the indictment.Yet again, the request is focused, it seeks information that is clearly within Brady, and itaddresses a subject matter long ago identified as part of Mr. Gupta's defense.

Exculpatory Proffers by O ther WitnessesWe requested that the government turn over presentations or proffers made to the

government by counsel on behalf of any potential witness that either exculpate Mr. Gupta ormight tend to impeach a witness or evidence presented against him. (Exh. J at 7-8).

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In making this request, we are of course at a disadvantage, because we do notknow which such witnesses or their counsel may have made a presentation or proffer, nor,therefore, do we know what may have been said. Yet the government should have no reason toresist production of such proffers if they do exist. They are not privileged. We are seekingdisclosure only if they contain factual statements about the subject matters in the indictment orthat speak about Mr. Gupta or his role. Moreover, to the extent these witnesses were notcharged, and even if one or more of them has been designated an unindicted co-conspirator, thatsuggests their presentations compiled significant exculpatory information. Access to these

materials would likely supply helpful leads to the defense in developing its case or assist inwitness preparation. And as with many of our Brady requests, time is running short.

ConclusionFor all of the foregoing reasons we respectfully request that the Court direct the

government to supply a bill of particulars as Mr. Gupta has requested, and produce promptly anyBrady material it may possess that is responsive to Mr. Gupta's November 22 request.Dated: New York, New York Respectfully submitted,January 3, 2012 Kramer Levin Naftalis & Frankel LLPBy:s/ Gary P. NaftalisGary P. N aftalisDavid S. FrankelStephen M. Sinaiko1177 Avenue of the Am ericas

New York, New York 10036(212) 715-9100Attorneys for Raj at K. Gupta

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Rajat Gupta's Filing for Bill of Particulars

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Transcript of Rajat Gupta's Filing for Bill of Particulars