Opinion: Trump Trial for Allegedly FALSIFYING BUSINESS RECORDS IN THE FIRST AND SECOND DEGREE is Contrary to Legal Precedents

By David William Jedell, Attorney at Law April 19, 2024

The Bragg case must be dismissed as beyond the Statute of Limitations. No crime is alleged after 2017 and the indictment is dated April 4, 2023, over 6 years later. See, Indictment, https://www.npr.org/2023/04/04/1167708172/trump-charges-hush-money-new-york-indictment. Statute of Limitation for a Felony under NY Law: For felony offenses other than A felonies listed in § 30.10(2)(a), the statute of limitation requires that the “prosecution for any other felony must be commenced within five years after the commission thereof…” See § 30.10(2)(b). "Penal Law § 175.10 Falsifying business records in the first degree: A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof. Falsifying business records in the first degree is a class E felony." Under New York law, CPL § 30.10(2)(a), a “prosecution for a misdemeanor must be commenced within two years after the commission thereof.” "A person is guilty of falsifying business records in the second degree when, with intent to defraud, he: 1. Makes or causes a false entry in the business records of an enterprise; or 2. Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or 3. Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or 4. Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.

Falsifying business records in the second degree is a class A misdemeanor." See, https://www.nysenate.gov/legislation/laws/PEN/175.05 Cuomo COVID-19 Executive Order: any statute of limitations that began to run and did not expire prior to March 20, 2020 will have 228 days added on to it. CPL 30.10(3)(b)…against a public servant, or any other person acting in concert with such public servant at any time during such public servant's service in such office or within five years after the termination of such service; However, the extra 5 years does not apply because PUBLIC SERVANT means any public officer or employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state, or any person exercising the functions of any such public officer or employee. PL 195.00. There has never been a SCOTUS decision holding that a statute of limitations on a state crime is tolled by the term of the President. See, https://www.uclalawreview.org/evaluating-a-proposed-presidential-reform-tolling-statutes-of-limitations/ CPLR 207: Statute of limitations not tolled for period of absence from state when personal jurisdiction was obtainable over defendant through expedient service. CPLR 207 provides that if, after a cause of action has accrued against a person, he departs from the state and remains continuously absent therefrom for four months or more, the period of his absence is not a part of the time within which the action must be commenced. The plaintiff cannot rely on a CPLR 207 toll, however, if personal jurisdiction could have been obtained despite the defendant's absence from the state.' In Goodemote v. McClain," the defendant left New York for a fourteen-month period eighteen months after she was involved in a New York automobile accident. The Appellate Division, Fourth Department, unanimously held that the statute of limitations was not tolled for the period of her absence from the state because the plaintiff could have obtained personal jurisdiction over the defendant at any time by obtaining an ex parte court order for expedient service under CPLR 308(5). Since the broad discretionary reach of CPLR 308(5) may be utilized whenever there is a jurisdictional basis, this decision should severely curtail the instances of tolls for absence under CPLR 207. See, https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2990&context=lawreview

Further, Judge Juan Merchan appears to be directly biased against Trump and Republicans as he himself allegedly supported an organization that expressly states it is against both, on its website. “During the 2020 United States presidential election, he supported Joe Biden the Democratic candidate and the Democratic Party, donating 35 dollars as a contribution to Democrats distributed as follows, $15 earmarked for the Biden campaign, $10 earmarked for Progressive Turnout Project and $10 for Stop Republicans, a subsidiary of the previous. See, https://en.m.wikipedia.org/wiki/Juan_Merchan As stated on its website, “Stop Republicans, an accountability campaign of Progressive Turnout Project, is a grassroots-funded effort dedicated to resisting the Republican Party and Donald Trump’s radical right-wing legacy.” See, https://www.turnoutpac.org/stop-republicans/ “Clearly, a judge who cannot be impartial when a particular attorney appears before the judge must disqualify him/herself, and remittal is not available (see 22 NYCRR 100.3[E][1][a][i]; 100.3[F]). However, even when a judge’s disqualification is not mandated by either Judiciary Law §14 or the specific circumstances described in §100.3(E)(1)(a)-(e) of the Rules and the judge believes that he/she can be impartial, if the judge’s impartiality might reasonably be questioned by others, he/she must nonetheless disqualify him/herself, but, in such circumstances, the disqualification is subject to remittal (see 22 NYCRR 100.3[E][1]). Whether a judge’s friendship with an attorney causes a judge’s impartiality reasonably to be questioned depends on the facts of each case.” See, https://www.nycourts.gov/ipjudicialethicsopinions/11-125.htm Furthermore, another issue is that Judge Merchan allegedly "frequently uses email to communicate with Trump’s defense lawyers and the prosecutors from Manhattan District Attorney Alvin Bragg’s office. That’s led to a ballooning set of off-the-book messages that are shielded from the public." See, "How large parts of Trump’s trial are playing out in the shadows," See, https://www.politico.com/news/2024/04/21/trump-trial-shadows-court-cases-00153506?cid=apn This may violate the Fifth and Sixth Amendments which, among other things, state "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,... nor be deprived of life, liberty, or property, without due process of law..."; See, https://constitution.congress.gov/constitution/amendment-5/ ; and "In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial." See, https://www.law.cornell.edu/constitution/sixth_amendment#:~:text=The%20Sixth%20Amendment%20guarantees%20the,charges%20and%20evidence%20against%20you.

The following illustrates the insufficiency of the Actual Indictment: (See, Indictment, https://www.npr.org/2023/04/04/1167708172/trump-charges-hush-money-new-york-indictment.) Regarding Judge Merchan's alleged jury instruction that "election interference is the (uncharged) crime Trump was covering up" and allegedly that "the case is to be referred to as the election interference case": ("The indictment may incorporate the words of the statute to set forth the offense, but the statutory language '"must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged."'") (quoting Hamling, 418 U.S. at 117-18 (quoting United States v. Hess, 124 U.S. 483, 487 (1888))); cf. United States v. Nance, 533 F.2d 699, 702 (D.C. Cir. 1976) (noting with approval mail fraud count that specifies misrepresentations); United States v. Curtis, 506 F.2d 985, 990 (10th Cir. 1974) (citations omitted) (dismissing mail fraud indictment that excludes false pretenses). Other uncharged purported crimes that allegedly have been allowed to be argued by the prosecution are: 1. Federal Campaign Finance Crimes; 2. State Campaign Finance Crimes; 3. Conspiracy to promote or prevent an election; 4. A catch-all alternative; and a Catch-and-Kill Scheme. See, https://www.justsecurity.org/85581/the-manhattan-das-charges-and-trumps-defenses-a-detailed-preview/ ; see also, https://www.politico.com/live-updates/2024/04/22/trump-hush-money-criminal-trial/3-catch-and-kill-deals-00153622 ; https://www.live5news.com/2024/04/23/catch-kill-will-be-described-jurors-donald-trumps-hush-money-trial-testimony-resumes/?outputType=apps The prosecution attempted to remedy the Catch-an-Kill defect in his Statement of Facts dated April 4, 2023, dated the same date as the indictment. See, https://s3.documentcloud.org/documents/24479174/lawfare-docket-watch-trump-statement-of-facts-supporting-indictment-april-4-2023.pdf However, "[t]he Supreme Court has instructed that an indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and enables him to enter a plea without fear of double jeopardy." (citing Hamling v. United States, 418 U.S. 87, 117 (1974)); see also Collins v. Markley, 346 F.2d 230, 232 (7th Cir.) (en banc) ("The sufficiency of an indictment is to be measured by certain guide lines. First, the indictment standing alone must contain the elements of the offense intended to be charged, and it must be sufficient to apprise the accused of the nature of the offense..." In Yefsky, the court held that the indictment was defective in that it did not provide the defendant with adequate notice of the charge (conspiracy to commit mail fraud) against him. 994 F.2d at 993 ("Where guilt depends so crucially upon . . . a specific identification of fact, . . . cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.") (citing Hamling, 418 U.S. at 118). In Curtis, the court stated the following in considering the sufficiency of the allegations contained in an indictment charging mail fraud) (what the actual Trump indictment says on this issue, inter alia, is "The defendant, in the County of New York and elsewhere, on or about June 19, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise" p. 6:

"Mere evidential matters or detail more appropriate in bills of particular need not be pleaded in an indictment based upon 1341. [citations omitted] But as these cases demonstrate, some substantial indication of the nature or character of any scheme or artifice to defraud, or to obtain money or property by means of false pretenses, representations or promises is requisite. And it is not sufficient in this regard to merely plead the statutory language. [citations omitted] A reference to the cases cited first above will disclose that in each instance the nature of the schemes or artifices is identified or described, including the particular pretenses, representations or promises claimed to have been false. See, 506 F.2d at 989-90 (holding that the indictment, which pleaded little more than the statutory language without any fair indication of the nature or character of the scheme or artifice relied upon, or the false pretenses, misrepresentations or promises forming a part of it, was fatally defective); see also United States v. Crummer, 151 F.2d 958 (10th Cir. 1945) ("While the particulars of the scheme are matters of substance and therefore must be described with a degree of certainty sufficient to show its existence of character, and fairly to acquaint the defendant with the particular fraudulent scheme charged against him, still the scheme itself need not be pleaded with all the certainty in respect of time, place, and circumstance requisite in charging the mailing of the letter or other matter.")) (allegations of the scheme held to be sufficient), cert. denied, 327 U.S. 785 (1946); cf. United States v. Azad, 809 F.2d 291, 295 (6th Cir. 1986) ("What distinguishes this indictment from the indictment found defective in [Curtis], . . . is the clear and specific description of the fraudulent scheme found in the present indictment. The indictment before us does provide some 'substantial indication of the nature or character' of the scheme involved, and 'the scheme itself need not be pleaded with all the certainty in respect of time, place, and circumstance requisite in charging the mailing of the letter or other matter.'" ) (quoting Curtis, 506 F.2d at 990), cert. denied, 481 U.S. 1004 (1987); United States v. Adamo, 534 F.2d 31, 35 (3d Cir.) ("The Curtis indictment was so vague that trial might have proceeded upon an entirely different concept of the scheme than that contemplated by the grand jury when it returned the indictment. By contrast, the indictment in this case explicitly outlines the elements of the fraudulent plan."), cert. denied, 429 U.S. 841 (1976). https://www.justice.gov/archives/jm/criminal-resource-manual-971-sufficiency-indictment-generally#:~:text=(en%20banc)%20(%22The,the%20nature%20of%20the%20offense."

Combining this lack of notice and the Merchan court's alleged mandated 24 hours to submit all evidence after the judge informed the jury that this case would be called "election interference case" appear to combine to deprive Trump of Constitutional rights to Due Process and the right to a 5th and 6th Amendments Grand Jury indictment with particulars noticed. Subsequently, during the trial weeks after commencement, for the first time, Judge Merchan allegedly informed the Trump defense that D.A. Alvin Bragg was alleging that the alleged crime that was being covered up, but not alleged in the indictment, was Election Law § 17-152. "Conspiracy to promote or prevent election. Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor." Fundamental Due Process requires prior notice and an opportunity to be heard. This hardly seems to comply.

How is it that Judge Merchan allegedly Gets All the Trump Orbit Cases? “In late 2022, (Judge) Merchan oversaw the five-week criminal trial of the Trump Organization; the organization was convicted of 17 counts of tax fraud. He also (allegedly) presided over the criminal case of Donald Trump's former financial chief Allen Weisselberg, who (allegedly) pleaded guilty to his role in a 15-year-long tax-fraud scheme. Weisselberg (allegedly) admitted to evading taxes by accepting $1.7 million in off-the-books compensation and entered a plea agreement, in which he testified against The Trump Organization and helped to secure the company's conviction. (Judge) Merchan (allegedly) sentenced Weisselberg to five months at Rikers Island and (allegedly) said he would have imposed a substantially longer sentence but for the plea agreement. (Judge) Merchan was (allegedly) the judge assigned to preside over the (criminal trial) of Steve Bannon, a former Trump adviser who was indicted in September 2022 on charges of fraud and money laundering in connection with a fundraising scheme...” See, https://en.m.wikipedia.org/wiki/Juan_Merchan

The Trump defense lawyers raised several different issues in their Omnibus Motion. See, https://outlook.live.com/mail/0/sentitems/id/AQMkADAwATM3ZmYAZS0wNmZkLWQ5MDEtMDACLTAwCgBGAAADZVW3dX%2BS8k2UfOlG%2Fq3x8gcATOBaxlnp4Eeo9nUX5X0nbAAAAgEJAAAARWGwe2Sxo0%2BQ0Wsm8%2FfVBQAGYGh%2FFwAAAA%3D%3D Most were denied. See, https://s3.documentcloud.org/documents/24485359/dec-on-defendants-mil.pdf

THIS PAPER IS NOT A POLITICAL COMMENTARY; IT IS JUST PRESENTED AS A LEGAL OPINION FOR THE PURPOSE OF PRESERVATION OF LIBERTY UNDER OUR LEGAL SYSTEM AND TO PROTECT AND DEFEND THE USA CONSTITUTION. IT IS NOT MEANT TO DISPARAGE THE D.A., THE JUDGE, THE JURY, THE WINESSES, THE LAWYERS, THE COURT SYSTEM OR ANYBODY ELSE. IT IS FURTHER NOT MEANT TO INTERFERE WITH THE ADMINISTTION OF JUSTICE OR TO INFLUENCE OR INTIMIDATE ANY JUROR. IT IS FOR NON POLITICAL INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE READ ANY OTHER WAY.

Copyright © 2024 by David William Jedell Email: d.w.jedell@gmail.com