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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT COURT OF FLORIDA

ROSS MANDELL, Case No.: 1:18-CV-24218

Plaintiff

v.

UNITED STATES SECURITIES AND


EXCHANGE COMMISSION (SEC)

AND

FEDERAL BUREAN OF INVESTIGATION


(FBI)

AND

UNITED STATES DEPARTMENT OF


JUSTICE (DOJ)

Defendants.
______________________________________/

COMPLAINT

1. Plaintiff ROSS MANDELL brings this suit to overturn Defendants UNITED

STATES SECURITIES AND EXCHANGE’S (SEC) FEDERAL BUREAU OF INVESTIGA-

TION (FBI) and UNITED STATES DEPARTMENT OF JUSTICE (DOJ) failure to produce

records related to a FOIA request.

JURISDICTION AND VENUE

2. Defendant SEC is a federal agency subject to the Freedom of Information Act, 5

U.S.C. § 552.

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3. Defendant FBI is a federal agency and component of the DOJ subject to the Free-

dom of Information Act, 5 U.S.C. § 552.

4. Defendant DOJ is a federal agency subject to the Freedom of Information Act, 5

U.S.C. § 552.

5. This case is brought under 5 U.S.C. § 552(a)(6)(c)(i) and presents a federal ques-

tion conferring jurisdiction on this Court.

6. Venue is proper under 5 U.S.C. § 552(a)(4)(B) because this District is always a

permissible venue or federal FOIA suits.

PARTIES

7. U.S. v. ROSS MANDELL resulted from an FBI raid that took place on November

6, 2006 at the offices of Sky Capital, for which Ross Mandell was the Chief Executive Officer

(CEO), in the Southern District of New York.

8. At that time, attorney Steven Altman represented Ross Mandell and Sky Capital,

and had represented them both for several years. Altman thereafter referred Ross Mandell to

criminal attorney Jeffrey Hoffman, his partner and close friend, who himself is now the subject

of a New York State BAR investigation as a result of a complaint that was filed, and remains

open pending the outcome of this lawsuit, on March 18, 2016 (Docket No.: 2016.0657).

9. Ross Mandell was indicted in July 2009 and went to trial on June 20, 2011, repre-

sented at trial by Jeffrey Hoffman who was retained to solely represent Mandell in this criminal

matter since November 2006. It was during the Voir dire process, as Judge Crotty read aloud to

the jury the names of the Government witnesses, that Mandell learned for the first time that his

former lawyer, and referring counsel, Steven Altman, was a witness against him. It is now un-

disputed that at that exact time Hoffman was also representing Altman, and he failed to notify

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the Court and Mandell. He chose to remain silent when Altman, his client, friend, and partner's

name was read aloud from the Government's witness list in open Court.

10. Ross Mandell was ultimately convicted of four criminal counts. Conspiracy to

Commit Wire, Mail, and Securities Fraud, Wire Fraud, Mail Fraud, and Securities Fraud. He is

currently incarcerated at FPC Miami and has served 49 months of a 144 month prison sentence.

11. It was only later learned that Jeffrey Hoffman was simultaneously representing

Steven Altman while he was representing Ross Mandell, in a matter before the SEC that would

ultimately result in Altman being barred for life from practicing before the SEC and also resulted

in an eighteen (18) month suspension from practicing law by the NY State BAR Association.

During that exact time the SEC was also prosecuting Mandell in Federal Court and Hoffman was

representing him as well.

12. Ross Mandell has also learned that Steven Altman was an unindicted co-

conspirator in his criminal case (he was the only co-conspirator who was never arrested, charged,

and prosecuted) and was listed as a "Related Case" in Government produced documents. His

name was raised over two hundred (200) times during Mandell's trial. Upon information and

belief, Steven Altman was a cooperating Government witness as well.

13. The Altman files (302's, 3500 material, interviews, etc.) believed to be in the pos-

session of the SEC, DOJ, and the FBI, have to this day, never been disclosed or produced to Ross

Mandell, despite numerous requests.

14. Ross Mandell currently has a 60(b) Motion pending before the trial court and

needs the evidence in the possession of the Defendants in order to supplement the record and

eventually move to vacate his conviction.

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15. Ross Mandell also has a pending ethics complaint against Hoffman before the

New York State BAR Association and their counsel is waiting for the requested evidence before

he can complete his investigation. That investigation may also give Mandell additional evidence

for his Motion 60(b) and Motion to Vacate.

MANDELL'S NOVEMBER FOIA REQUEST

16. In an effort to obtain the Altman file, on November 7, 2017, the undersigned

counsel was directed by Assistant United States Attorney Andrew Ken-Wei Chan, who currently

represents the United States Government in the aforementioned Motion 60(b), to contact Assis-

tant United States Attorney Darian Hodge in order to make a FOIA request for the Altman file.

17. Assistant United States Attorney Darian Hodge thereafter directed the under-

signed counsel to submit an online FOIA request through the Department of Justice website on

behalf of Ross Mandell. Exhibit "A".

18. The undersigned counsel has had no contact with AUSA Hodge since that time

due to Mr. Hodge's refusal to entertain it.

19. On December 5, 2017, the undersigned counsel having received no response

wrote to AUSA Andrew Ken-Wei Chan and requested the same information. Exhibit "B".

20. On January 18, 2018, the undersigned counsel wrote to AUSA Andrew Ken-Wei

Chan and AUSA Darian Hodge and requested the same information. Exhibit "C".

21. On June 18, 2018, at the suggestion of Department of Justice FOIA attorney Da-

vid Luczynski, the undersigned submitted a formal FOIA request to the SEC. Exhibit "D".

22. On June 18, 2018, at the suggestion of Department of Justice FOIA attorney Da-

vid Luczynski, the undersigned submitted a formal request to the FBI. Exhibit "E".

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23. On June 22, 2018, the undersigned counsel received correspondence from the FBI

neither denying nor confirming the existence of the requested information. Exhibit "F".

24. On June 27, 2018, the undersigned counsel received correspondence from SEC,

FOIA Branch Chief Aaron Taylor that the request for expedited processing of the FOIA request

had been denied. Exhibit "G".

25. On August 13, 2018 the undersigned counsel had one of several conversations

with Mr. Taylor during which he confirmed that there were "two boxes of information consisting

of thousands of pages of information some of which is confidential in nature and therefore not

subject to release."

26. On August 13, 2018 the undersigned counsel, after contacting the Office of Gov-

ernment Information Services made a second request for the FBI FOIA files.

27. On August 23, 2018 the undersigned counsel submitted a formal written appeal to

the Office of Information Policy demanding the release of the FBI FOIA files. Exhibit "H".

28. On September 6, 2018 the undersigned counsel spoke with Mr. Taylor of the SEC

who again confirmed the existence of thousands of pages of information some of which was still

marked as "confidential".

29. On September 7, 2018 the undersigned counsel spoke with Mr. Taylor of the SEC

who indicated that the file would be reviewed and released to the undersigned by the end of the

month.

30. On September 20, 2018 the undersigned spoke with Mr. Taylor of the SEC who

indicated that his office was still reviewing the file and indicated that it was still likely the end of

the month before any files could be released.

31. As of October 8, 2018, the FBI has not released any of the requested information.

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32. As of October 8, 2018, the SEC has not released any of the requested information.

33. As of October 8, 2018 the DOJ has not released any of the requested information.

COUNT I – SEC’S VIOLATION OF FOIA

34. The above paragraphs are incorporated by reference.

35. Defendant SEC is an agency subject to FOIA.

36. The requested records are not exempt under FOIA.

37. SEC has refused to produce the requested records in a timely manner.

COUNT II –FBI’S VIOLATION OF FOIA

38. The above paragraphs are incorporated by reference.

39. Defendant FBI is an agency subject to FOIA.

40. The requested records are not exempt under FOIA.

41. FBI has refused to produce the requested records in a timely manner.

COUNT III–DOJ’S VIOLATION OF FOIA

42. The above paragraphs are incorporated by reference.

43. Defendant DOJ is an agency subject to FOIA.

44. The requested records are not exempt under FOIA.

45. FBI has refused to produce the requested records in a timely manner.

WHEREFORE, Plaintiffs ask the Court to:

i. Order Defendants to produce the requested records;

ii. Award Plaintiffs attorney fees and costs; and

iii. Enter any other relief the Court deems appropriate.

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Respectfully submitted by:
Mark G. Astor, Esq.

/S/ Mark G. Astor


___________________________
MARK G. ASTOR
Attorney for the Defendant
5030 Champion Blvd., #G11-114
Boca Raton, FL 33496
(561) 419-6095
Florida Bar # 0015474
mark@astorlawfirm.com