UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------X
UNITED STATES OF AMERICA, Cr. No. 14-00248 (PKC)

vs.

MICHAEL GRIMM,

Defendant.
----------------------------------------------------X

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO DISMISS
COUNTS SEVENTEEN, EIGHTEEN, AND NINETEEN OF THE INDICTMENT AND
TO STRIKE PARAGRAPHS TWENTY-SIX AND TWENTY-SEVEN AS SURPLUSAGE

Defendant Michael Grimm (hereinafter, Mr. Grimm) files this Motion to Dismiss
various counts of the indictment based on fatal defects of venue. As explained below, Counts
Seventeen, Eighteen, and Nineteen all allege criminal acts that occurred outside the Eastern
District of New York. As such, venue in this Court is improper. As a result, Paragraphs
Twenty-Six and Twenty-Seven of the Indictment must be stricken as surplusage because they are
only in the Indictment to provide a factual basis to support Counts Seventeen, Eighteen, and
Nineteen. Mr. Grimm may ask the Court to dismiss these Counts with prejudice, pending the
resolution of other motions pending before the Court relating to a request for discovery on issues
relating to selective and vindictive prosecution.
When asked to clarify the Governments position on the instant motion, Assistant United
States Attorney J ames Gatta stated that the Government would review and consider [the] brief
and then put [its] position in writing.



Case 1:14-cr-00248-PKC-RML Document 36 Filed 10/06/14 Page 1 of 7 PageID #: 130
I. IMPROPER VENUE
A. Legal Standard
A defendant is entitled to be tried in the district where the alleged crime occurs. See
United States v. Kahale, 2010 WL 3851987, at *15 (E.D.N.Y. Sept. 27, 2010); see also United
States v. Rivera, 388 F.2d 545, 547-48 (2d Cir. 1968) (venue is important as a guaranty of the
defendant's right to be tried in the vicinity of his criminal activity). Rule 18 of the Federal
Rules of Criminal Procedure provides that the government must prosecute an offense in a
district where the offense was committed. Venues critical importance is rooted in two places
in the United States Constitution: Article III, 2, which provides that the trial of all crimes . . .
shall be held in the State where the said crimes shall have been committed; and the Sixth
Amendment, which provides that a criminal trial shall be in the State and district wherein the
crime shall have been committed. Rivera, 388 F.2d at 548 (quoting U.S. CONST. amend. VI).
As the Second Circuit has instructed, the government bears the burden of proving venue
as an essential element of its casea burden founded upon the highest considerations of
fairness in the administration of criminal justice. United States v. Saavedra, 225 F.3d 647 (2d
Cir. 2000) (quoting United States v. Boney, 572 F.2d 397, 400 (2d Cir. 1978)). Where an
indictment charges multiple counts, venue must be proper with respect to each count. United
States v. Novak, 443 F.3d 150, 161 (2d Cir. 2006) (reversing a conviction for making false
statements under ERISA because of defective venue).
An indictment must set forth each element of the crime that it charges. Almendarez-
Torrest v. United States, 523 U.S. 224, 228 (1998). Prior to trial, in establishing sufficient
allegations demonstrating that venue is proper in the district where the case will be tried, the
Government must allege with specificity that the charged acts support venue in [the] district.
2

Case 1:14-cr-00248-PKC-RML Document 36 Filed 10/06/14 Page 2 of 7 PageID #: 131
United States v. Long, 697 F. Supp. 651, 655 (S.D.N.Y. 1998). In a criminal case, venue must
be narrowly construed. United States v. Jefferson, 674 F.3d 332, 365 (4th Cir. 2012).
Determining whether venue is properly laid requires two related inquiries: (1) whether
there a statutory basis for venue provided by Congress; and (2) whether the criminal activities in
question bear substantial contacts to the district to ensure that the considerations underlying
the Constitutions commands respecting venue have been preserved. United States v. Saavedra,
223 F.3d 85, 89 (2d Cir. 2000).
The Constitution of the United States guarantees the right of an accused to be tried in the
state and district in which the crime was committed. U.S. CONST. art. III, 2; U.S. CONST.
amend. VI. These constitutional provisions are implemented by Federal Rule of Criminal
Procedure 18, which states that [e]xcept as otherwise permitted by statute or by these rules, the
prosecution shall be had in a district in which the offense was committed. FED. R. CRIM. P. 18.
Neither the Constitution nor Rule 18, however, offers guidance for determining where a crime
has been committed. That issue must be determined by reference to the statute proscribing the
criminal act. Johnston v. United States, 351 U.S. 215, 220 (1956). Two of the statutes under
which Mr. Grimm is charged, 18 U.S.C. 1623 and 18 U.S.C. 1512(c)(2), contain no venue
provision. As such, the situs of the crime must be determined from the nature of the crime
alleged and the location of the act or acts constituting it. United States v. Anderson, 328 U.S.
699, 703 (1946).
B. Argument
The Indictment, filed on April 25, 2014, charges, in Counts 17 and 18, that Mr. Grimm
violated 18 U.S.C. 1623 by giving false testimony while under oath during a deposition in a
civil matter. The Indictment, in Count 19, charges Mr. Grimm with violating 18 U.S.C.
3

Case 1:14-cr-00248-PKC-RML Document 36 Filed 10/06/14 Page 3 of 7 PageID #: 132
1512(c)(2), for the obstruction of an official proceeding. The Indictment states that the alleged
false statements and obstructive acts all occurred in the Southern District of New York. (Ind.
48, 50, 52). Further, the civil matter
1
in which the alleged obstructive conduct and false
statements were made, was associated with a matter pending in the Southern District of New
York. (Ind. 48, 50, 52).
Thus, it is clear from the face of the Indictment that there is no venue in the Eastern
District of New York for these counts. Counts Seventeen, Eighteen, and Nineteen must,
therefore, be dismissed for lack of venue.
II. SURPLUSAGE
A. Legal Standard
Federal Rule of Criminal Procedure 7(d) provides that [u]pon the Defendants motion,
the court may strike surplusage from the indictment. FED. R. CRIM. P. 7(d). The related
Advisory Committee Notes explain that the rule introduces a means of protecting the defendant
against immaterial or irrelevant allegations in an indictment [. . .] which may, however, be
prejudicial. FED. R. CRIM. P. 7, advisory committees note. The determinative question in a
motion to strike surplusage is not the potential prejudice, but rather, the relevance of the
allegation to the crime charged in the indictment. United States v. Napolitano, 552 F. Supp. 465,
480 (S.D.N.Y. 1982). If the evidence of the allegation is admissible and relevant to the charge,
then despite prejudice, the language will not be stricken. Id. (citing United States v. Chas. Pfizer
& Co., 217 F. Supp. 199, 201 (S.D.N.Y. 1963)).


1
Regino Perez and Carlos Perez v. Granny Sayz, Healthalicious, Bennett Orfaly and
Michael Grimm, Docket No. 11 CIV 8736 (CM).
4


Case 1:14-cr-00248-PKC-RML Document 36 Filed 10/06/14 Page 4 of 7 PageID #: 133
B. Argument
As stated above, Counts Seventeen, Eighteen, and Nineteen must be dismissed and, as a
result, Paragraphs Twenty-Six and Twenty-Seven must be stricken as surplusage. Paragraphs
Twenty-Six and Twenty-Seven of the Indictment are intended to provide a factual basis to
support exclusively Counts Seventeen, Eighteen, and Nineteen (for Perjury and Obstruction of
J ustice). This intention is blear based on the manner in which the Indictment is organized. See
(Ind. 1-27). The Indictment separates the paragraphs that serve as the basis for the alleged
crimes of Mr. Grimm into categories. Id. Examples of this categorization include Background,
GRIMMs Criminal Schemes, and Concealment, Perjury, and Obstruction of J ustice. Id.
Paragraphs Twenty-Six and Twenty-Seven are listed in the Indictments Concealment, Perjury,
and Obstruction of J ustice section and provide no support to any other alleged Counts. Id.
Moreover, if Counts Seventeen, Eighteen, and Nineteen are dismissed, all remaining
Counts allege activity that ceased, at the latest, in 2011. Id. Put simply, if Counts Seventeen,
Eighteen, and Nineteen are dismissed, any allegation containing details beyond 2011 is not
relevant in proving any remaining Counts charged in the Indictment. Paragraphs Twenty-Six
and Twenty-Seven allege details that occurred exclusively in 2013 during a single deposition, a
few years after the alleged criminal activity ceased. Id. at 26-27.
If Counts Seventeen, Eighteen, and Nineteen are dismissed, Paragraphs Twenty-Six and
Twenty-Seven serve no purpose other than to prejudice Mr. Grimm. Thus, while mere prejudice
is not enough, where evidence and of the allegation is inadmissible and irrelevant, then the
language should be stricken. See United States v. Napolitano, 552 F. Supp. 465, 480 (S.D.N.Y.
1982). As such, Mr. Grimm requests that the aforesaid surplusage be stricken from the
Indictment.
5

Case 1:14-cr-00248-PKC-RML Document 36 Filed 10/06/14 Page 5 of 7 PageID #: 134
III. CONCLUSION
For the foregoing reasons, Counts Seventeen, Eighteen, and Nineteen of the Indictment
must be dismissed and, as a result, Paragraphs Twenty-Six and Twenty-Seven must be stricken
as surplusage. Mr. Grimm reserves the right to ask the Court to dismiss these Counts with
prejudice.


Dated: October 6, 2014
Miami, Florida





Respectfully submitted,

/s/ J effrey A. Neiman
Daniel Lawrence Rashbaum (DR-4037)
drashbaum@mnrlawfirm.com

J effrey A. Neiman
Florida Bar No. 54469
jneiman@mnrlawfirm.com

Pro Hac Vice Admitted

MARCUS NEIMAN & RASHBAUM LLP
2 South Biscayne Boulevard, Suite 1750
Miami, Florida 33131
Tel: (305) 400-4261
Fax: (866) 780-8355

Counsel for Michael Grimm
6

Case 1:14-cr-00248-PKC-RML Document 36 Filed 10/06/14 Page 6 of 7 PageID #: 135
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 6, 2014, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document
is being served this day on all counsel of record, either via transmission of Notices of Electronic
Filing generated by CM/ECF or in some other authorized manner for those counsel or parties
who are not authorized to receive Notices of Electronic Filing electronically.

/s/ Daniel Lawrence Rashbaum
Daniel Lawrence Rashbaum


Mr. J ames Gatta, AUSA
Mr. Anthony Capazzola, AUSA
Mr. Nathan Riley, AUSA
United States Attorneys Office
Eastern District of New York
217 Cadman Plaza East
Brooklyn, New York 11201


7

Case 1:14-cr-00248-PKC-RML Document 36 Filed 10/06/14 Page 7 of 7 PageID #: 136
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------X
UNITED STATES OF AMERICA, Cr. No. 14-00248 (PKC)

vs.

MICHAEL GRIMM,

Defendant.
----------------------------------------------------X

NOTICE OF MOTION
PLEASE TAKE NOTICE that upon the accompanying Memorandum of Law, Defendant
Michael Grimm, by counsel MARCUS NEIMAN & RASHBAUM LLP, will move this Court
before the Honorable Pamela K. Chen, at the U.S. Courthouse, 225 Cadman Plaza East,
Brooklyn, New York, for an Order granting Dismissal of Counts Seventeen, Eighteen, and
Nineteen of the Indictment for lack of venue and for an Order striking Paragraphs Twenty-Six
and Twenty-Seven of the Indictment as surplusage.
Dated: October 6, 2014
Miami, Florida

By: /s/ Daniel Lawrence Rashbaum
Daniel Lawrence Rashbaum (DR-4037)
drashbaum@mnrlawfirm.com

Counsel for Michael Grimm

J effrey A. Neiman
Florida Bar No. 54469
jneiman@mnrlawfirm.com

Pro Hac Vice Admitted

MARCUS NEIMAN & RASHBAUM LLP
2 South Biscayne Boulevard, Suite 1750
Miami, Florida 33131
Tel: (305) 400-4261
Fax: (866) 780-8355

Case 1:14-cr-00248-PKC-RML Document 36-1 Filed 10/06/14 Page 1 of 1 PageID #: 137