Here is how Atty Berke officially rebuked the government's charges that Tony was trying to flee:
9 Another piece of the so-called circumstantial proof
10 is that Mr. Elgindy altered his behavior and allegedly began
11 preparations to flee to Lebanon. You heard that. Now,
12 first, Mr. Elgindy had ample opportunity to flee if that's
13 what he wanted to do. He certainly had financial
14 wherewithal, he could have done it, he could have fled.
15 He went to Lebanon on-- in November 2001 he went to
16 Lebanon at a time and again in November '01 the government's
17 theory is he had been told about the investigation and what
18 did he do? He came back. He came back. What kind of flight
19 is that? He went to Lebanon and he came back.
20 Now, there's more to that. Look at what he did at
21 home. He and his wife Mary were building a large home, a big
22 house in their hometown of San Diego, not some far off land.
23 You heard in May 2002, just before he was arrested they
24 finally finished it and they had a big party. Mr. Royer was
25 there, other people. They had a pool party. They just
M. BRYMER, RPR, OCR
Official Court Reporter
8473
SUMMATION - BERKE
1 finally finished their house. You heard the government kept
2 asking how lavish or expensive. It is an expensive multi
3 million dollar house which I submit if you're planning to
4 flee to Lebanon it is the last thing you will do.
5 A letter from Mr. Elgindy to Ms. Bryant, the
6 Probation Officer, he says my wife and I just built a home we
7 would like to grow old in. There is an exhibit and we can
8 put this exhibit up, DX 16083. This exhibit is a copy of two
9 tax payments that Mr. Elgindy had just paid to the State of
10 California on April 15, 2002. Again, this is months after
11 the government claims Mr. Elgindy learned about the
12 investigation and in total Mr. Elgindy pays $305,000.
13 $305,000. One to the U.S. Treasury, one to the Franchise Tax
14 Board in taxes. I submit to you, members of the jury, if
15 someone is fleeing the jurisdiction because they are under
16 investigation not to come back, they will not be writing, you
17 know, checks to Uncle Sam for taxes or to Franchise Tax
18 Board. I submit to you it doesn't ring true and certainly
19 shows the government has failed to prove this beyond a
20 reasonable doubt.
21 But more to the point, if there's anything to the
22 notion and again this is the centerpiece of the government's
23 theory that he knew because of his flight to Lebanon, are you
24 going to be a little secretive? Are you going to tell the
25 world about it? I would like to show what Mr. Elgindy does
M. BRYMER, RPR, OCR
Official Court Reporter
8474
SUMMATION - BERKE
1 when he goes to Lebanon, if I may.
2 First thing he does is on November 2nd, 2001, these
3 are the E-mail broadcasts in evidence, GX 3001, he sent one
4 to everybody. Remember everybody includes, you know, Brent
5 Baker, anybody and everybody, whether they are on chat or
6 not, everybody gets this. Right? These are widely
7 distributed. Anyone who is a member with Anthony Pacific.
8 He says, Anthony, Hi, everyone, moved to Regency
9 Palace Hotel in Jouneih, Lebanon. By far one of the most
10 spectacular beautiful places I have ever seen in my life.
11 Okay, again, first you are going to tell the world you're in
12 Lebanon if it is part of a plan to flee to Lebanon?
13 November 7 chart discussion: I am trying to get on
14 from an Internet cafe. So far I think I found the first
15 modem ever installed in Lebanon. Again, no secrets here.
16 November 9th he's talking more about Lebanon. I
17 will most likely spend a couple of months a year here and
18 work from here. I'm telling ya smart money is buying Lebanon
19 real estate. Follow my logic, okay. He talks about it. I'm
20 telling you this is a smart move. You heard testimony how it
21 is a vacation home and it is a different part of Lebanon.
22 There's obviously the city, but then there are nice areas
23 that are vacation spots. You heard about that. That's where
24 he's going for him and his family.
25 You see here there's more than that. On November
M. BRYMER, RPR, OCR
Official Court Reporter
8475
SUMMATION - BERKE
1 14th, 2001 Silicon Investor's post. Beirut, Lebanon. I am
2 on a trip of four to possibly seven countries. Been gone
3 almost a month. On Silicon Investor. That's the public
4 site. It is on the Internet. Anybody -- everybody knows
5 Mr. Elgindy is on Silicon Investor. Anybody who wants to
6 know anything about Mr. Elgindy, anybody, including
7 government agents, anybody could look at Silicon Investor,
8 November 14th. He's telling them where he is. Again, on
9 November 14th, 2001, I am in Beirut.
10 I submit to you, members of the jury, this is
11 directly contrary to the notion that he is spiriting away to
12 Lebanon to hide or flee or avoid detection. A big secret in
13 his travels to Lebanon the government argues. He couldn't
14 have been any more open about it, including on the Internet.
15 Heard people tell the joke why don't you just put it
16 on the Internet so everybody will know. Mr. Elgindy did. He
17 put it on the Internet.
18 So, when you look at these facts, he bought a new
19 home, he had just finished it, he was having a party about
20 it, he was paying his taxes in April, he is telling the world
21 that he's in Lebanon, I would suggest that there's nothing
22 that supports the government's theory this is proof beyond a
23 reasonable doubt that he knows about the investigation and is
24 fleeing to Lebanon.
25 Of course, there's nothing illegal about buying
M. BRYMER, RPR, OCR
Official Court Reporter
8476
SUMMATION - BERKE
1 vacation property in Lebanon. It shouldn't be surprising.
2 Mr. Elgindy, although he grew up in Chicago, lived in the
3 United States all his life. He has family in Egypt. You
4 heard testimony about how he traveled to Egypt. He got
5 permission from the Probation Officer. He visited with his
6 family. Lebanon is obviously very close. It shouldn't be
7 surprising he's looking for a vacation home near some of his
8 family.
9 The government suggests that there is something
10 sinister in the fact that he did not tell his Probation
11 Officer Lori Bryant that he was buying a home in Lebanon.
12 Members of the jury, the simple fact I submit as to why he
13 didn't tell her is because he didn't have to. If you look at
14 the monthly form he filled out, it has only one space to list
15 one's residence.
16 If we could put up GX 3723, part A highlighted,
17 please.
18 See, residence. Ms. Bryant testified in this trial
19 that she didn't require Mr. Elgindy to tell her about his
20 investments, that he didn't have to tell her about the
21 investments. The chat makes clear when we look up here that
22 this is clearly an investment. Clearly an investment,
23 investment property.
24 Government also argued Mr. Elgindy opened up a bank
25 account in Lebanon and didn't tell her about it. First,
M. BRYMER, RPR, OCR
Official Court Reporter
8477
SUMMATION - BERKE
1 obviously, the condo explained why he had a bank account and
2 you can follow the money. You see he has a bank account in
3 Lebanon, but he's paying $350,000 in taxes which we saw, and
4 as to why he didn't tell Ms. Bryant, because he didn't have
5 to, he wasn't required to.
6 Again, if you look at the forms, again on page one
7 there's a section on the bottom which only requires him to
8 report purchases of individual goods or services which you
9 paid $500 or more. That's it. Goods or services.
10 Obviously, an investment vacation property is not goods or
11 services.
12 Now, you also heard some suggestion Mr. Elgindy
13 maybe did something suspicious because there is a February
14 bank statement in her stack of papers that was for a
15 different period, but, members of the jury, if you look at
16 that, first they had a copying problem. If you remember they
17 only copied the first page. I submit there's no -- there's
18 another February -- clearly submitted in February for the
19 prior year. There's some suggestion that there's something
20 improper about that. First, it wouldn't be very effective
21 way of doing it, but there's absolutely no evidence that's
22 anything other than a copying issue, particularly given the
23 copying issues they had with that month in the file.
24 I should say that, you know, beyond all of that, Ms.
25 Bryant was very clear that she didn't keep very close tabs on
M. BRYMER, RPR, OCR
Official Court Reporter
8478
SUMMATION - BERKE
1 Mr. Elgindy's finances. She may say a purchase like that may
2 have caught my attention. She was very clear she didn't keep
3 close tabs.
4 In fact, before this investigation began, probation
5 officers had very positive views about him. They said he was
6 compliant, they never had a problem with him. Both -- Mr.
7 Reidling said that Mr. Elgindy was compliant, cooperative,
8 provided whatever he asked and never had a problem with him.
9 Both Mr. Reidling and Ms. Bryant agreed supervision of him
10 was loose.
11 With respect to Mr. Elgindy's travel plans in the
12 Fall of '01, Mr. Reidling helped Mr. Elgindy get approval to
13 travel for many weeks to multiple countries, including Egypt,
14 Spain, Kosovo and an entire gamut of nations in the
15 Caribbean. It is true he did not include Lebanon on the
16 list. In hindsight, perhaps he wished he did. Maybe he
17 thought it wasn't a big deal, because he was approved for all
18 these countries. Maybe he was thinking about going but he
19 wasn't sure he was going to go.
20 More important than any of this is that he didn't
21 hide it, because when Ms. Bryant testified on direct there
22 was some suggestion that he was trying to hide it, but she
23 went to his office and she said, as I believe the testimony
24 was or she asked him, she said where did you go on your
25 travels? Period. Nothing leading. Not did you go to
M. BRYMER, RPR, OCR
Official Court Reporter
8479
SUMMATION - BERKE
1 Lebanon? Where did you go on your travels? He said,
2 volunteered the countries including Lebanon. Didn't hide it,
3 said it without any prompting, without any knowledge that she
4 knew that he had been in Lebanon. He volunteered it.
5 I think equally important in the spring of '02,
6 when Mr. Elgindy is planning on going back, planning on going
7 overseas, he specifically asked Ms. Bryant for permission to
8 go to Lebanon. Specifically asked. Again, I submit if
9 somebody has plans to flee and that's what they are doing,
10 the last thing they will do is ask the Probation Officer for
11 permission to go to Lebanon.
12 I should say Mr. Elgindy -- you know the government
13 has even tried to turn Mr. Elgindy's prior counsel
14 representing Mr. Elgindy's actions into something more
15 important than it is. The transcript, take a look at the
16 transcript. Ask yourself that the statements the government
17 points to are they volunteered by the lawyer or were they
18 response to questioning by the court? Even if you think what
19 the prosecutors say they mean, could there have been a
20 misunderstanding? You don't have Mr. Elgindy saying anything
21 about it. He could have been thinking about going and
22 deciding to go and, you know, it just -- I submit to you it
23 doesn't make any sense, the government's position, given Mr.
24 Elgindy's openness before when he's going and that you know
25 he would be telling his members that he's going to flee.
M. BRYMER, RPR, OCR
Official Court Reporter
8480
SUMMATION - BERKE
1 The prosecution put in the chat. They put it in
2 that shows Mr. Elgindy talking about possibly going to
3 Lebanon. I submit to you that if he is going to go to
4 Lebanon to flee, does it make any sense he will be talking
5 openly about it to hundreds of people on his chat room? I
6 suggest to you it doesn't.
7 Now I want to make this point, because I think the
8 government is digging so deep to try to prove this
9 obstruction case and this Lebanon that they have made
10 arguments that I respectfully submit they should know don't
11 fly. One of the things they did and you heard about it from
12 Mr. Levine is at the very end of the trial they put a
13 document in in their rebuttal case. They tried to argue that
14 Mr. Elgindy listed his residence as Lebanon. It is just not
15 so and I would like to walk through it and you will see why,
16 exactly what that document does show.
17 If we could put up GX 4011. First let me show
18 you, I will use the Elmo. I'll highlight it on my copy the
19 old fashioned way. First what this relates to is Global
20 Securities account involving a -- it is a Global Securities
21 account for entity called 33588 Yukon, Inc. It is a
22 corporate structure. You'll see that Global Securities, if
23 you remember, is a -- it is a securities firm where
24 Mr. Elgindy and others did their trading, had trading
25 accounts. This is an account with this entity. Again, it is
M. BRYMER, RPR, OCR
Official Court Reporter
8481
SUMMATION - BERKE
1 in Canada and you will see that the county of residence for
2 this entity is Canada. It is right there. No question. It
3 is listed as Canada.
4 Now, when Mr. Elgindy signs these papers and is
5 opening the account you'll see that it is October '01, 30th,
6 he is in Lebanon. It indicates where he is, the place where
7 he is in Lebanon. He indicates Lebanon. Nothing about this
8 at all about residence. It is a certification and indication
9 of where he is which he has to sign which he does.
10 Now, if you look, part one says identification of
11 beneficial owner. Again it is 33588 Yukon, Inc. It is a
12 corporate structure, corporate owner of the account. Again
13 it indicates looking for location, it is indicated. There's
14 that information. Okay.
15 Now, this is what the government showed you.
16 Remember Mr. Breen had to show Mr. Levine where it was on the
17 document during summations. It says the beneficial owner is
18 a resident of Lebanon. Ah ha, he knew he was moving to
19 Lebanon, that's why he put it on the document. First, that
20 doesn't make any sense. First, the corporate structure we're
21 talking about that is the beneficial owner of Yukon was
22 incorporated, see from the same documents, much earlier, in
23 September 8, 2001. So, this isn't a new entity.
24 Second, we know that it is incorporated in its place
25 of residence for where the corporation is, Canada, because it
M. BRYMER, RPR, OCR
Official Court Reporter
8482
SUMMATION - BERKE
1 is all over the document. It is clear that it is all over
2 the document.
3 Third, the handwriting in Lebanon is different from
4 the other handwriting. If you look at the record, it is
5 clear it wasn't filled out by Mr. Elgindy. The only thing
6 that happened, obviously, I submit from this evidence as you
7 can certainly infer, that somebody from Global Securities saw
8 the signature of someone signing from Beirut, Lebanon and put
9 Lebanon and made a mistake. It doesn't make sense otherwise.
10 First, the resident for this account is not Mr. Elgindy, it
11 is the corporation. It says throughout the document that the
12 beneficial owner's county of residence is Canada and the one
13 place where it refers to Lebanon is obviously a mistake.
14 If you look at these documents there can be no doubt
15 about it, no doubt. I submit to you, members of the jury,
16 again, an instance where the government is trying to take a
17 document like this and argue, ah ha, this is our definitive
18 proof, we now got him, again shows you not only the length
19 they'll go to try to prove charges they don't have the
20 evidence for, but how they're prepared to take these facts
21 and mold them to fit their theory. If you have any questions
22 about that look carefully. If you look carefully, it is
23 very, very clear that that's what this is about.
24 Again, this is a -- this is document 4011. Let me
25 refer to two other documents that the prosecution put in at
M. BRYMER, RPR, OCR
Official Court Reporter
8483
SUMMATION - BERKE
1 the very, very end of their case to claim that it supports
2 this theory that Mr. Elgindy was seeking to somehow flee to
3 Lebanon because he knew about the investigation.
4 First they put in the E-mails. These are GX 416 --
5 I'm sorry, 4615 and 4616 and there may have been one more.
6 Here is what they showed you to suggest -- this is from
7 Mr. Elgindy. First, he's reading it backwards. There is an
8 E-mail April 16th, 2002 where it is from a person Adnan Adnan
9 calling to -- it says for you and your wife, Ms. Mary,
10 regarding the apartment. Everything is going all right. I'm
11 always checking and always in touch with the lawyer. I would
12 like to know when are you going to visit Lebanon. Visit
13 Lebanon. Not move to Lebanon. Not come here permanently.
14 Visit.
15 Again, if you look at May 3rd, this other E-mail
16 that the prosecution put in as some sort of proof, again
17 Adnan Adnan, May 3rd, 2002, and again it says: Hello, Mr.
18 Anthony, wish that everything is going all right. My
19 situation is not so good. I'm waiting you to visit Lebanon.
20 Mr. Elgindy -- again, visit Lebanon.
21 Mr. Elgindy responds May 13th: Soon I hope. Very
22 busy here. Again, talking about visiting. No suggesting
23 about moving or anything else. Perfectly consistent,
24 Mr. Elgindy the evidence is having a vacation home that he
25 was going to have to visit.
Message 21755938 |
