Case 3:08-cr-00230-CSH Document 372 Filed 07/22/10 Page 1 of 6

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA : CRIM. NO. 3:09CR230(CSH)

:
V. :

JAMES BOTTI : JULY 22, 2010

Government’s Response to Defendant’s Motion for Extension of Time to Deposit Funds

to Secure Judgment of Forfeiture

The Government submits the following response to defendant’s belated motion to extend

one the date on which he is required to deposit monies to secure the judgment of forfeiture. See

Defendant’s Motion for Extension of Time to Deposit Funds to Secure Judgment of Forfeiture

(hereinafter “Def’s Motion”) at 1. The Government opposes defendant’s motion, respectfully

requests that the Court deny the defendant’s motion, and order that defendant deposit $120,500

in cash or its equivalent in property on Monday, July 26, 2010.

Defendant’s forfeiture order is a result of his conviction for structuring (31 U.S.C. §

5324(a)(3) and 5324(d)) and conspiracy to structure (18 U.S.C. § 371). On November 10, 2009,

after a jury convicted defendant of structuring and conspiracy to structure, the same jury

determined that defendant must forfeit $120,500. On November 30, 2009, this Court issued a

Preliminary Order of Forfeiture for $120,500. On April 1, 2010, defendant was also found guilty

by another jury of one count of mail fraud.

On May 27, 2010, a hearing was held before this Court to determine whether to postpone

defendant’s sentencing for structuring, conspiracy to structure and mail fraud due to three

pending Supreme Court cases regarding “honest services” – the basis of defendant’s mail fraud

1
 Case 3:08-cr-00230-CSH Document 372 Filed 07/22/10 Page 2 of 6

guilty verdict. At the hearing, the Government expressed concern that a delay in sentencing for

the structuring and conspiracy to structure crimes would delay the Government’s ability to secure

the forfeited funds. Defendant immediately offered to deposit the forfeited amount within sixty

days . The Court ordered that defendant deposit $120,500 with the Clerk of the Court within 60

days -- July 26, 2010. After accepting defendant’s offer to post $120,500, the Court agreed to

postpone defendant’s sentencing on all three counts to September 17, 2010.

On the eve of his requirement to deposit funds he promised to provide, defendant now

claims that he was unable to deposit a single dollar with the Clerk of the Court because on July

19, 2010, “the commitment to provide those funds [to defendant] would not be honored” (Def.

Mot. at ¶5). The motion submitted by defense counsel was filed without any factual basis, let

alone a sworn affidavit from defendant. The Government respectfully submits that defendant’s

requested relief is unreasonable for a number of reasons.

At the outset, it bears repeating that defendant, without prompting, informed the Court

that he would pay the Clerk of the Court $120,500 on or before July 26, 2010. The Court orally

ordered him to do so. Notably, defendant did not protest the imposition of the Order, or attempt

to modify the impact of his promise by informing the Court that he would merely “try” to secure

the funds by July 26, 2010. In June 2010, the Government wrote defense counsel to remind

counsel of defendant’s requirement to deposit the funds within 60 days. No response was

received by the Government. Now that the funds are due, defendant seeks to undermine the

entire basis for his sentencing adjournment.

Ironically, defense counsel is asking this Court to believe an unsworn statement of his

client offered through counsel that he just can not come up with any money at all. This is the

2
 Case 3:08-cr-00230-CSH Document 372 Filed 07/22/10 Page 3 of 6

same defense counsel, who, in his opening, through his questioning of witnesses and in his

closing argument informed the Court and the jury that any statement made by defendant,

including which day of the week it was, was unreliable and could not be relied upon as truth. In

short, defendant can not violate an order of this Court and expect that his contemptuous actions

will go unaddressed.

Nor was the Court’s Order that defendant deposit the funds made in a vacuum. Both the

Court and the Government agreed to postpone defendant’s structuring and conspiracy to commit

structuring sentencing based upon defendant’s promise to deposit the funds. The Government

had been concerned that a delay in defendant’s sentencing for the structuring counts would delay

a final order of forfeiture. And a delay in defendant’s sentencing on structuring was not

necessary simply because defendant’s mail fraud guilty verdict could be impacted by cases

pending before the Supreme Court. Based on defendant’s promise to the Court to pay the

$120,500 to the Clerk of the Court by July 26, 2010, the Court and the Government agreed that

the structuring sentencing could also be postponed.

Indeed, due to defendant’s promise to pay $120,500, the Government gave up valuable

rights to secure foreclosure of property in defendant’s name. Perhaps not coincidentally,

defendant has not filed a financial affidavit with the Probation Office, as ordered by this Court.

Not surprisingly, the Government has no way of testing the veracity of defendant’s unsworn

statement offered through counsel that he could not meet his commitment to pay $120,500 to the

Clerk of the Court.

The Government has no reason to believe that defendant will post the $120,500 in the

next sixty days that he requests, a date which falls after sentencing. Accordingly, the

3
 Case 3:08-cr-00230-CSH Document 372 Filed 07/22/10 Page 4 of 6

Government respectfully requests that the Court deny his motion for an extension. The

Government respectfully asks that the Court order defendant to immediately post $120,500 in

cash or its equivalent in property – e.g., deeds to real property, title to other assets – along with a

valuation from a licensed appraiser that the posted property is worth at least $120,500.

4
 Case 3:08-cr-00230-CSH Document 372 Filed 07/22/10 Page 5 of 6

CONCLUSION

The Government respectfully requests that defendant’s motion be denied.

Respectfully submitted,

NORA DANNEHY
ACTING UNITED STATES ATTORNEY

/s/

RICHARD J. SCHECHTER
SENIOR LITIGATION COUNSEL
United States Attorney’s Office
915 Lafayette Boulevard
Bridgeport, Connecticut 06604
(203)696-3000
Federal Bar No. ct24238

/s/

RAHUL KALE
ASSISTANT U.S. ATTORNEY
United States Attorney’s Office
915 Lafayette Boulevard
Bridgeport, Connecticut 06604
(203)696-3000
Federal Bar No. phv02526

5
 Case 3:08-cr-00230-CSH Document 372 Filed 07/22/10 Page 6 of 6

CERTIFICATE OF SERVICE

This is to certify that on July 22, 2010, a copy of the foregoing was served electronically.
The foregoing has also been provided to:

William F. Dow, Esq.

Jacobs, Grudberg, Belt, Dow & Katz P.C.
350 Orange Street
New Haven, CT 06503

________/s/____________________
Rahul Kale