The judge who sent Alberto Vilar to jail in the first place today set unrealistic terms for his release – a $10 million bond signed by three guarantors, electronic monitoring and an 11 pm curfew that will prevent him from making his triumphant return to the Met.
Lawyers for Vilar and his partner Gary Tanaka have launched an immediate appeal. The wheels are starting to turn quite fast.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT
Docket Number(s): Caption [use short title]
Set forth below precise, complete statement of relief sought:
MOVING PARTY: OPPOSING PARTY:
9 Plaintiff 9 Defendant
9 Appellant/Petitioner 9 Appellee/Respondent
MOVING ATTORNEY: OPPOSING ATTORNEY:
[name of attorney, with firm, address, phone number and e-mail]
Date: _____________________________________________ By: ________________________________________________
Form T-1080 (rev. 7-12)
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1 of 10UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
UNITED STATES OF AMERICA 10-521(L)
-against- DECLARATION –
ALBERTO VILAR and GARY TANAKA, FOR
Defendants – Appellants.
Vivian Shevitz, hereby declares:
1. I am counsel to Alberto Vilar and (for bail) Gary Tanaka in this
2. I make this declaration in support of an order modifying
conditions of release set by Judge Sullivan about a half hour ago.
A copy of Judge Sullivan’s Order, released too late to achieve
release before this long weekend, is attached.
3. The Court imposed a condition of a $10 million bond for Vilar,
cosigned by 3 people; and a $ 5 million bond for Tanaka, also cosigned
by 3 people.
4. Additionally, Vilar must reside in the SDNY, according to the
conditions, and Tanaka must identify where he will reside and must
stay there. Both must be subject to electronic monitoring, and are
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2 of 10subject to a curfew, requiring them to return home by 11 pm and not
leave until 7 am.
5. The Court ruled that defendants can travel ”for court
appearances” if they give advance notice to Pre-trial services, and
that there can be other modifications, “for such purposes as obtaining
medical care”, upon request and subject to the Court’s approval.
6. The Court also ruled that defendants shall surrender travel
documents and not apply for new ones. In fact neither defendant has
travel documents: they were turned over in 2005, not returned, and
7. The Court also ruled that defendants are to remain in custody
until they and three others sign bonds.
8. We submit these conditions are unnecessary and inappropriate.
They are not meant merely to assure presence. They are punitive.
9. I have already informed the government and the Court that Mr.
Tanaka will first reside with his mother in Los Angeles, and then will
reside in Portland Maine. (The Court’s order did not even allow for
travel to counsel’s office in Maine; but in fact I have agreed to assist
Mr. Tanaka in obtaining medical care in both New York (at Memorial
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3 of 10Sloane Kettering ) and in Boston (Dana Farber Institute). The
requirement of obtaining permission for each second opinion, or each
appointment that can be made, is unreasonable.
10. Further, I submit that electronic monitoring is unnecessary as
are curfews. Both men have a strong interest in seeing the case
11. While the Court identified “changed conditions” that, it said,
justified rejection of all the government’s proposed conditions, the
only condition proposed by the government that the Court did not
impose, is property securing the bonds.
12. The government itself had not even proposed a curfew. These
conditions are overkill. They are unnecessary.
13. I just spoke to the prosecutors. They have stated that before they
will agree that anyone is an appropriate co-signer, these people must
provide all bank statements and other financial information,
including tax returns and pay stubs for two year, to the prosecutors
before they will agree that the signers are financially responsible and
therefore appropriate co-signers. And the prosecutors want these
first, and then propose to interview the signers – in New York if they
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4 of 10are there – before they agree to any person being a co-signer.
14. I asked whether the prosecutors will agree to release subject to
these documents being signed next week. They said “no”, because
Judge Sullivan ruled that defendants “are to remain in custody
pending satisfaction of conditions (1)-(5), which are the bonds and cosigners. This is their position despite the fact that the proposed cosigners include people who signed previously for the defendants,
including Mr. Tanaka’s mother and sisters, and Mr. Vilar’s few
friends, including Mr. Pfaeffle.
15. Judge Sullivan rejected our proposal for release subject to
signing a waiver of objection to the fugitive disentitlement doctrine
because, he wrote, trial counsel had agreed at sentencing that the
seized “forfeitable” funds should go to claimants.
16. Counsel at trial did not appreciate either the extent of the
forfeiture – because it was not even ordered until well after
sentencing — nor the nature and amount of client claims The
amount of claims – not including the 9% compounded interest – is far
below the full amount of “the forfeiture.” Further the “substitute
asset forfeiture” order came months after sentencing and includes
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5 of 10other assets, for example, the pension plan. And, though Judge
Sullivan cites client claims in the “companion” SEC case (which we
say is the same case in reality), in fact the Court conceded he had
made a $36 million “error” in “the forfeiture.
17. We suggest that these conditions are not necessary. The
Court should modify conditions imposed by Judge Sullivan. No cosigners are needed to secure these defendants’ appearance. The
prosecutors should not be allowed to subject people to prosecutorial
scrutiny for defendants, who have no funds because they have been
confiscated, to be released. No electronic monitoring is required.
No curfew is needed. Putting the prosecutors in the middle of this
– requiring signers to hand over all their bank and other financial
records, tax returns, etc. – just demonstrated more vindictiveness
and is unsupported by reason.
Dated: October 5, 2012
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