Defendants File Post-Trial Brief

September 7, 2005 6:31 pm by Gene Borio

From 9/7/05 Defendants’ Post-Trial Brief:

Since the beginning of this trial, the Government has struggled to squeeze recycled accusations from prior tobacco litigation into the unique and limited confines of civil RICO. The uncomfortable tension between the requirements of the RICO statute and the facts of this case became manifest as Government witness after witness conceded away the most basic elements of RICO – leaving only a patchwork quilt of largely unrelated alleged individual frauds. The parties’ post-trial submissions confirm the Government’s complete failure of proof on indispensable elements of their RICO claim.

In addition, the overwhelming weight of the evidence – including the dismantling of the alleged “enterprise” during the past decade – demonstrates the absence of a reasonable likelihood of future RICO violations, which is a jurisdictional prerequisite to any relief under 18 U.S.C. § 1964(a). Moreover, in contravention of the D.C. Circuit Court of Appeals’ opinion, United States v. Philip Morris, 396 F.3d 1190 (D.C. Cir. 2005), the Government remains steadfast in its attempt impermissibly to seek relief that is solely remedial, designed to cure the effects of alleged past misconduct. Finally, the violation of due process guarantees by the Government’s tardy and still incomplete “notice” of its requested remedies – many of which were not identified or specified until weeks after the close of evidence – provides additional intractable obstacles to any relief in this case.

Indeed, the Government’s remedies case is in such a state of disarray that it opens its post-trial brief with a plea that the Court hold its remedies findings in abeyance and essentially enter a post-trial bifurcation order. Gov. Br. at 2-3. But the Court provided the Government with ample opportunities in the midst of trial to correct course to comply with the appellate court opinion – over Defendants’ repeated objections and despite the fact that it was the Government that insisted the case proceed to trial in the face of the uncertainty over the pending interlocutory appeal. Even after the appellate court ruling, the Government insisted time and time again that the Court expedite the trial of its allegedly revamped remedies case – often seeking to deny Defendants’ discovery requests on that very basis. See, e.g., Gov. 4/15/05 Mem. in Opp. to Defs.’ Mot. for Discovery re Remedies Witnesses at 1 [Dkt. No. 5231]. Neither justice nor efficiency would be served by delaying a remedies ruling now.

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