Upon a finding by the Court that Mr. Vann subjectively and reasonably believed that in return for his cooperation he would receive a favorable disposition, the Court should enter an order excluding as evidence all of his statements during the meeting at Case4:08-cr-00244-SBA Document109 Filed08/04/10 Page9 of 10 Defendant Vann’s Mtn. per FRE 410 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 his residence on July 17, 2007, as well as the fruits of those statements. Dated: August 4, 2010 Respectfully submitted, _____________/s/_______________ HUGH ANTHONY LEVINE Attorney for Defendant VANN Case4:08-cr-00244-SBA Document109 Filed08/04/10 Page10 of 10

See Fed. R. Evid. 410(b)(1). When the defendant introduced by proffer his plea bargaining correspondence to support his pre-indictment delay motion, Fed. R. Evid. 410(b)(1) permitted the government to use the May 18, 2008 letter to rebut the mischaracterization of his posture during plea negotiations. Accordingly, this Court should find that Mr. Abbenante acted effectively, and deny the defendant’s pro se motion as unsubstantiated.

See Fed. R. Evid. 410: [E]vidence of the following is not, in any . . . criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure . . .; or (4) any statement made in the course of plea discussions with the attorney for the prosecuting authority which do not result in a plea of guilty [.] See also Fed. R. Crim. P. 11(f): “The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410.” Accordingly, the statements are barred from admission at trial.

The proffer was conducted pursuant to the terms of the Fraud Section’s stander proffer agreement, which provides that “in any proceeding, including sentencing, the government may use Client’s statements and any information provided by Client during or in connection with the meeting to cross-examine Client, to rebut any evidence or arguments offered on Client’s behalf, or to address any issues or questions raised by a court on its own initiative.” The agreement further provides that “neither this agreement nor the meeting constitutes a plea discussion” and that “Client knowingly and voluntarily waives any right Client might have under Fed. R. Evid. 410, Fed. R. Crim. P. 11(f), or otherwise, to prohibit the use against Client of statements made or information provided during the meeting.” During the proffer session, Mr. Conti made statements about his LIBOR setting practices and about specific electronic communications shown to him by investigators.

Fed. R. Evid. 410 (a)(4) makes inadmissible against a defendant in a civil or criminal case, “a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later- withdrawn guilty plea.” “Although Fed. R. Evid. 410 explicitly precludes only statements offered by the prosecution attorneys, fairness dictates that the restriction should apply to both parties to the negotiations. If only the prosecutor is restricted, it would undermine the policy of promoting plea discussions.”

Moreover, Mirabilis’ own allegations in its complaint admit that the illegal plan would “utilize Mirabilis,” and that a key element of it “called for 25 Defendants are not relying on the preclusive effect of Mirabilis’ plea of nolo contendere, although other courts have found such reliance to be appropriate where the criminal defendant seeks relief from others in a later civil proceeding. See, e.g., Walker v. Schaeffer, 854 F. 2d 138, 143 (6th Cir. 1988) (holding that Fed. R. Evid. 410 does not prevent the preclusive effect of a nolo contendere plea entered by a criminal defendant in a subsequent civil proceeding in which that defendant is a plaintiff, because the “use of the no-contest plea for estoppel purposes is not ‘against the defendant’ within the meaning of Fed. R. Evid. 410.”); see also Delong v. State ex rel.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel. Rule 11(f) of the Federal Rules of Criminal Procedure states "[t]he admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410.” Case 7:07-cr-01027-SCR Document 19 Filed 01/23/2008 Page 13 of 16 14 U.S. 1001 (1967); Myers v. United States, 49 F.2d 230, 231 (4th Cir.), cert.

Exhibit 4 is irrelevant because in a motion to dismiss, the Court is limited generally to the allegations of the Complaint. FRE §§ 410, 402; Tunnell, 14 F.3d at 453 (9th Cir. 1994). Exhibit 4 is also irrelevant because it is offered in support of defendant’s contention that investors were not harmed by Under Rule 201, “[a] court may take judicial notice of ‘matters of public record’ without converting a motion to dismiss into a motion for summary judgment,” as long as the facts noticed are not “subject to reasonable dispute.”

Moreover, it is based on inadmissible evidence. Additionally, Defendant’s discussion of Plaintiff’s alleged pleas regarding former criminal proceedings pertaining to a DUI (driving under the influence) are not only irrelevant but inadmissible pursuant to Federal Rules of Evidence 410. Same should also be stricken.

See Adedoyin, 369 F.3d 344 (citing Olsen v. Correiro, 189 F.3d 52, 58-62 (1st Cir. 17 See Motion, pgs. 16-17 (citing United States v. Wyatt, 762 F.2d 908, 911 (11th Cir. 1985) “(holding that a nolo contendere plea does not insulate the facts underlying it from admissibility under Fed. R. Evid. 404(b)) (citing Williams, 642 F.2d at 138-139 ([supposedly] explaining that a nolo contendere plea admits ‘every element of the offense (that is) well pleaded in the charge,’ and that there is a ‘distinct and meaningful difference’ between the evidentiary use of a plea versus a criminal conviction); see also United States v. Adedoyin, 369 F.3d 337, 343-44 (3d Cir. 2004) ([supposedly providing] that Fed. R. Evid. 410 does not prohibit the admission of a conviction on a plea of nolo contendere as opposed to the plea itself, because the plea ‘has the same legal consequences as a plea of guilty and results in a conviction’); Burrell v. United States, 2002 WL 31051594, *3, n. 3 (E.D.N.Y. Aug. 19, 2002) (a conviction based upon a nolo plea is a final adjudication, and thus ‘the admissibility and the collateral consequences of the conviction are not determined by Rule 410’).” Case 6:09-cv-00271-GAP-DAB Document 78 Filed 12/06/10 Page 23 of 31 24 4835-2114-6632.1 43582/0004 1999) (providing that convictions based on pleas of nolo contendere are admissible to prove the fact of conviction only, and that a plea of nolo contendere is not an admission of guilt and thus the fact that a defendant made such a plea cannot be used to demonstrate that he was guilty of the crime in question).