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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 10-60194-CR-COHN/SELTZER

UNITED STATES OF AMERICA, Plaintiff, v. STEVEN STOLL, et al. Defendants. ____________________________________/ DEFENDANT STOLLS MOTION FOR MISTRIAL OR IN THE ALTERNATIVE FOR REMEDIAL SANCTIONS FOR BRADY VIOLATIONS REGARDING LENDER MISCONDUCT AND INCORPORATED MEMORANDUM OF LAW Defendant Steven Stoll, by and through the undersigned counsel, requests this Court Order a mistrial in this case, or in the alternative impose remedial sanctions against the Government for Brady violations regarding lender misconduct and complicity based upon newly discovered evidence of undisclosed Government investigations and law suits against lenders, and in support thereof states as follows: I. Introduction and Summary of the Argument On September 2, 2011, the United States of America, through the Federal Housing Finance Authority, announced that it had filed seventeen (17) separate law suits against numerous lenders and other financial institutions in an effort to recover hundreds of millions of dollars in losses suffered by Fannie Mae and Freddie Mac as a result of their purchase of mortgage backed securities that contained residential home loans that had not been underwritten to lender guidelines as represented by the lenders and underwriters in related securities offerings.

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Among the revelations contained in the Complaints filed in the suits was the disclosure that the Department of Justice is actively investigating allegations of lender misconduct relating to the widespread and willful failure of lenders to follow loan underwriting guidelines. This revelation is most pertinent to this case because the prosecution, in response to specific Brady demands, has mostly denied the existence of information in the Governments possession regarding lender misconduct in loan origination, and has failed to provide any information regarding the current Department of Justice investigation and the sweeping allegations contained in the Complaints filed on September 2, 2011. Moreover, the prosecution has repeatedly sought in this trial to exclude evidence of lenders failure to follow underwriting guidelines, and has sought through its experts to establish that lenders did follow the underwriting guidelines, and that the adherence to these guidelines by the lenders made the alleged false statements and omissions in this case factually material to the lenders. As the allegations in the recently filed Government law suits describe in great detail, nothing could be further from the truth. The inconsistent position taken by the Government in the case against Mr. Stoll regarding lender adherence to underwriting standards, and the resulting misleading testimony sponsored by the Government through its lender and mortgage industry experts, cannot be allowed to stand. The prejudice resulting from the Brady violation in this case is exponentially compounded by the fact that the Government failed to call a single lender representative witness that was actually involved in the underwriting and approval of any of the loans in this case. None of the three lender representatives the Government called as witnesses had any personal knowledge of the underwriting of any of the loans, and the failure of the Government to disclose

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the information in its possession regarding an active Department of Justice investigation(s) of lender underwriting practices deprived Mr. Stoll of the ability to impeach these witnesses testimony, as well as the hearsay evidence of the lenders files, with the fact that lenders were under government investigation for failing to follow and making false statements regarding their adherence to the very same underwriting guidelines these witnesses were called as witnesses to explain. As a consequence of these significant Brady violations, Mr. Stoll has been deprived of a fair trial, thereby necessitating a mistrial. Alternatively, in order to remedy the Governments Brady violations, to correct the false and misleading position taken by the Government in this case regarding lender misconduct and complicity in loan underwriting, and to ensure that Mr. Stoll receives a fair trial in this case, Mr. Stoll requests the Court impose remedial sanctions against the Government as set forth below. II. A. Factual Background The Government Law Suits Against the Lenders

The seventeen (17) separate law suits filed this past Friday on behalf of the Federal Housing Finance Agency contain numerous and detailed allegations of a complete abandonment of normal and expected lender underwriting practices during the last decade. The failure of lenders to follow their stated underwriting guidelines and criteria resulted in countless loans being packaged into mortgage backed securities that were not as creditworthy as represented in the securities offering materials. As a consequence of the lenders purposeful failure to underwrite loans in accordance with the underwriting guidelines, the default rate of the loans contained in mortgage backed

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securities purchased by Fannie Mae and Freddie Mac was far higher than expected, costing these government agencies (and taxpayers) hundreds of millions of dollars in losses. The allegations of lender and underwriter misconduct are chronicled in the more than one thousand pages of civil Complaints filed by the Federal Housing Finance Agency on September 2, 2011. The allegations and supporting documents are so numerous that it is impractical to attach them to this Motion. However, copies of the Complaints can be found at

http://www.fhfa.gov/Default.aspx?Page=110.

For illustration purposes, the Complaints filed against GMAC, and its subsidiary Residential Funding Company, LLC, (the parent company of Homecomings Financials Network, LLC a lender in this case), and Countrywide are attached hereto as Exhibits 1 and 2, respectively. By way of brief excerpt and summary, the allegations of lender misconduct regarding underwriting include the following: 1. GMAC Complaint -Among other things, the Registration Statements presented the loan origination guidelines of the mortgage loan originators who originated the loans that underlay the Certificates. The Registration Statements falsely represented that those guidelines were adhered to except in specified circumstances, when in fact the guidelines systematically were disregarded in that the loans were not originated in accordance therewith. (GMAC Complaint, Exhibit 1, Page 2 at 5). -The Prospectus Supplements for each of the Securitizations made similar representations with respect to the underwriting guidelines employed by each of the originators in the Securitizations, which included: Aegis Mortgage Corporation, Decision One Mortgage Company, LLC, EFC Holdings Corporation and its subsidiary EquiFirst Corporation, Finance 4

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America, LLC, First National Bank of Nevada, Home123 Corporation, Homefield Financial Inc., Mortgage Lenders Network USA, Inc., New Century Mortgage Corporation, Ownit Mortgage Solutions Inc., Peoples Choice Home Loan, Inc., Pinnacle Financial Corporation and SCME Mortgage Bankers, Inc. (GMAC Complaint, Exhibit 1, Page 28 at 75). -Contrary to those representations, however, these originators routinely and egregiously departed from, or abandoned completely, their stated underwriting guidelines . . . As a result, the representations concerning compliance with underwriting guidelines and the inclusion and descriptions of those guidelines in the Prospectus Supplements were false and misleading, and the actual mortgages underlying each Securitization exposed the purchasers, including Freddie Mac, to a materially greater risk to investors than that represented in the Prospectus Supplements. (GMAC Complaint, Exhibit 1, Page 28 at 76). -The Non-Party Originators -- companies such as New Century, Decision One, and others -- systematically disregarded their respective underwriting guidelines, as confirmed not only by the pervasively false owner-occupancy and LTV figures . . , but also by: (1) government investigations and private actions relating to their underwriting practices, which have revealed widespread abandonment of their reported underwriting guidelines during the period of the Securitizations; . . . (GMAC Complaint, Exhibit 1, Page 42 at 106). -Further, on June 29, 2011, the SEC and the DOJ launched investigations of, among other things, potential fraud related to the origination and/or underwriting of mortgage loans by GMAC. As an originator of residential mortgage loans for the GMAC entities, the scope of the SEC and the DOJs investigation will likely include a review of HFNs compliance with its own loan origination underwriting guidelines. (GMAC Complaint, Exhibit 1, Page 48 at 120)(Emphasis added).

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-In the case of GMAC, the GMAC entities were so closely integrated and the abusive lending practices so rampant from the top down that the depositors (RALI, RAMP and RASC), the sponsor (RFC) and the underwriter (RFS), knew -- or were reckless in not knowing -- that HFN -- a subsidiary of the sponsor -- systematically was disregarding prudent underwriting standards and that its loans lacked the characteristics represented in the Offering Materials. As detailed above, a sampling of GMACM loans conducted by MBIA has revealed a noncompliance rate of at least 89 percent. 161)(Emphasis added). 2. Countrywide Complaint (GMAC Complaint, Exhibit 1, Page 63 at

-The SEC and the U.S. Department of Justice investigated potential securities law violations by Countrywide and its personnel in the securitizations of mortgage loans and offerings of mortgage-backed securities in the secondary market, including allegations that Countrywide made false and misleading disclosures to influence the stock trading price, and allegations of insider trading by the three most senior executives of Countrywide Financial: Angelo Mozilo (Countrywides CEO), David Sambol (Countrywides President and COO), and Individual Defendant Eric Sieracki (Countrywides CFO). (Countrywide Complaint, Exhibit 2, Page 71 at 145)(Emphasis added). -To apply its matching strategy effectively, Countrywide expanded the number of employees who were authorized to grant [loan underwriting] exceptions. A wide range of employees were given authority to grant exceptions and to change the terms of a loan, including underwriters, their superiors, branch managers, and regional vice presidents. If Countrywides automated system recommended denying a loan, for example, an underwriter could override that

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denial by obtaining permission from his or her supervisor. SEC Complaint at 11-12. (Countrywide Complaint, Exhibit 2, Page 74 at 149). -The SEC action established that it was openly known at Countrywide that loans were being approved for securitization based solely on Countrywides ability to sell the loan in the market, rather than on compliance with underwriting criteria. Countrywides high-volume computer system, called the Exception Processing System, was known to approve virtually every borrower and loan profile, albeit with a pricing add-on by which Countrywide charged the borrowers extra points and fees. The Exception Processing System was known within Countrywide as the Price Any Loan system. Through the Exception Processing System, Countrywide was able not only to generate enormous profits from these higher fees, but also routinely approve loans that did not satisfy even its weakened theoretical underwriting criteria. (Countrywide Complaint, Exhibit 2, Page 74 at 150)(emphasis added). All totaled, the Complaints filed by the Federal Housing Finance Agency implicate at least 69 different lenders and underwriters in the securitization of mortgage loans originated without regard for underwriting practices and guidelines, including: 1) Homecomings; 2) Countrywide; 3) Fremont Investment & Loan; 4) Option One Mortgage Corporation; 5) Wachovia (AMNET); 6) National City; and 7) Accredited. III. Brady and Other Discovery Violations by the Government A. The Demands

Despite the receipt of multiple specific Brady demands and Motions seeking the disclosure of information regarding civil or criminal investigations of lenders, the Government failed to disclose the existence of the Department of Justice investigations revealed in the attached Complaints, and/or the substance thereof.

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More specifically, by way of letter on August 20, 2010 (a copy of which is attached as Exhibit 3), Mr. Stolls counsel specifically demanded disclosure of [a]ny criminal complaint and/or investigation to any state or federal investigative agency or any civil complaint or administrative action, relating to any lender involved in or associated with any defendant and/or the 68 loan transactions, as well as any civil litigation relating to these lenders. When no substantive response was received from the Government in response to the demand, Mr. Stoll repeated the specific Brady demand in a Motion to Compel the Government to produce Brady material regarding Government witnesses [D.E. 399] filed on October 8, 2010. The Government responded to this motion on November 5, 2010 (D.E. 516), and asserted that [t]he government has no information or documents that are responsive to Defendants request #8 concerning criminal and civil complaints and investigations against lenders involved with the 68 fraudulently acquired properties, or associated with any defendant. Although the Government has acknowledged the continuing nature of its Brady obligations to Mr. Stoll, no disclosure of the Department of Justice investigations or the damning allegations against the lenders regarding their failure to follow underwriting practices was provided to the defense by the prosecution in this case. Under Brady v. Maryland, 373 U.S. 83, 88 (1963), the Government was under an affirmative obligation to inquire and obtain the favorable information possessed within its own department, as well as the other agencies that comprised the prosecution team. Kyles v. Whitley, 514 U.S. 419, 437 (1995); United States v. Safavian, 233 F.R.D. 12, 17-18 (D.C.C. 2006)(prosecutor obligated to cause files to be searched that are not only maintained by the prosecutor's or investigative agency's office, but also by other branches of government "closely aligned with the prosecution."); United States v. Jennings, 960 F.2d 1488, 1490 (9th Cir.

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1992)(the prosecutors "personal responsibility cannot be evaded by claiming lack of control over the files . . . of other executive branch agencies"). It is axiomatic that the Office of the United States Attorney is a part of the Department of Justice, and the prosecutors in this case therefore are charged with knowledge of the Department of Justice investigations of the lenders, were also charged with the obligation to inquire as to the existence of the investigations upon receipt of a specific Brady demand for the information, and were obligated to disclose the existence of the investigations to Mr. Stoll and his counsel. B. Prejudice Resulting From the Brady Violations

The Governments failure to disclose the information in its possession regarding active investigations of the lenders in this case, as well as the substantive information regarding the wholesale failure of lenders to adhere to their purported loan underwriting standards has resulted in overwhelming and irremediable prejudice to Mr. Stoll in this case. First, the purported importance and adherence to underwriting guidelines by the lenders is an essential underlying premise of the Governments theory of prosecution in this case. The fact that there exists significant evidence that the lenders regularly and willfully failed to follow these guidelines casts more than substantial doubt on the sustainability of the Governments prosecution theory. This is particularly true in light of the failure of the Government to call a single lender witness that was involved in the underwriting or approval of the loans in this case to testify that the underwriting guidelines were followed or that the alleged false statements and omissions had any potential impact (materiality) on the approval of the loans in this case. Said differently, the previously undisclosed evidence that an agency of the Government has determined, and that the Department of Justice was investigating allegations, that lenders approved loans without any regard for whether the loans met the guidelines, and that lenders

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routinely waived or made exceptions to compliance with the guidelines and criteria, that the lenders did so for their own financial gain, and that the lenders thereafter misrepresented their compliance with the underwriting guidelines to the purchasers of the loans, casts insurmountable doubt upon whether the Government could ever sustain its burden of proof without calling a lender witness that was actually involved in the underwriting or approval of any of these loans. At a minimum, the Government was required to disclose this information to the defense so that it could have been presented to the jury for its consideration in deciding this case. To add insult to injury, the Government has actively resisted, and for all intents and purposes, has succeeded in thwarting the defendants attempts to introduce evidence of lenders willful failure to follow the underwriting guidelines, their financial incentive for doing so, and the resulting impact upon the reliability of the lender files in evidence. The Government did so under the guise that there was no evidence that these lenders were engaged in these practices. However, as demonstrated in the 17 complaints recently filed by the Government, as well as existence of one or more Department of Justice investigations into the underwriting practices of these lenders, the Government has taken a diametrically opposed position regarding these lenders elsewhere. As the record stands, the jury in this case has been deprived of substantial favorable evidence to the defense regarding the lenders actions, intent, motive, and the lack of materiality of the statements and alleged omissions in dispute in this case. Moreover, the Government, in a disingenuous substitute for testimony from lender representatives with actual knowledge of the underwriting and approval of the loans in this case, has presented testimony from former lender employees and purported expert witnesses with no personal knowledge about these loans to testify that the lenders did actually follow underwriting

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guidelines, and to testify that the statements and alleged omissions in dispute in this case were material to the lenders decisions to approve these loans. In addition to being deprived of the favorable evidence regarding the failure of lenders to follow underwriting guidelines, the Governments failure to disclose the existence of the investigation(s) of the lenders by the Department of Justice also deprived the defense of the ability to impeach the credibility of the lender files being relied upon by the Government, as well as the potential motive and bias of the lender representatives called by the Government as witnesses in this case. Each of the lender witnesses, having been employed by lenders during a time period when according to the recently filed Complaints they were engaged in massive frauds on government agencies and others purchasing mortgage backed securities, had an undisclosed and unexplored motive to color their testimony so as to minimize their own potential culpability and involvement in the fraud. These witnesses had a similar motive to minimize the culpability of their former lender employers. Further, if the Government had informed the defendants of the investigation of the lenders, and the fact that the lenders had a financial motive to conceal their failure to follow underwriting guidelines within their own files, the defense would have had the ability to impeach the credibility of the lender files produced in this case, and would have been able to present a compelling explanation for the absence of certain documents (such as conversation logs, escrow agreements, emails, etc.) from the lender files. The Government, on the other hand, in taking full and unfair advantage of the lenders purging of files, has been pointing to the lack of such documents in the files as evidence that the lenders were never aware of the escrow withholds and sourcing of deposits from the third parties.

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Accordingly, the Governments Brady violation has impacted this case in multiple, varied and profound ways to the detriment of Mr. Stoll. IV. Requested Relief A. Mistrial

The profound and cumulative effect of the Governments Brady violation, coupled with the exclusion of evidence of lender misconduct regarding the failure to follow underwriting guidelines, the deprivation of the ability to introduce evidence that the lenders are under Department of Justice investigation, and the loss of the resulting impact that evidence would have had on the jurys evaluation of the lender files and the lender witnesses, along with the Governments exploitation of the withholding of this information and evidence favorable to the defense, necessitates a mistrial in this case. Granting or denying a motion for a mistrial is a matter committed to the trial courts discretion. See United States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994). The court should grant a mistrial if the taint is ineradicable. See United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir. 1993). Although alternative remedies are proffered below, it is difficult to conceive how, at this stage of the trial, the substantial prejudice to Mr. Stoll that has resulted from the Governments misconduct described above could be adequately addressed short of a mistrial. Accordingly, Mr. Stoll respectfully moves for a mistrial with prejudice in this case. B. Alternative Remedies

While not retreating in any way from his request for a mistrial, but recognizing that a mistrial will generally be granted only as a last resort by the court, Mr. Stoll submits that the following remedies should be imposed should the court not declare a mistrial in this case.

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1) Ordering the immediate disclosure by the Government of all pertinent information regarding the current Department of Justice investigation of lender misconduct and complicity in loan underwriting, and any related information regarding same or similar allegations; 2) Taking Judicial Notice of the law suits filed by the Federal Housing Finance Agency, and grant Mr. Stoll surrebuttal to allow the introduction into evidence of the existence of the Department of Justice investigation of lenders and the allegations contained in the Complaints concerning lenders wholesale failure to follow loan underwriting guidelines, and the false statements made by the lenders to Fannie Mae, Freddie Mac regarding whether they followed loan underwriting guidelines; 3) Striking the testimony of Marta McCall, Michael Adams, Curt Lane, Douglas Pollock, and Rebecca Walzak with respect to the issue of whether lenders follow loan underwriting guidelines and any testimony as to the application of loan underwriting guidelines to the loans in this case; 4) Prohibiting the Government from arguing in closing argument that the lenders

followed loan underwriting guidelines and that no exceptions were made to loan underwriting guidelines, criteria or procedures in this case; and 5) Prohibiting the Government from arguing in closing argument that the absence of documents in the lender files, such as conversation logs, escrow agreements and emails, is evidence that the lenders did not previously have these documents and the information relating thereto. V. Conclusion For the reasons set forth above, and consistent with the mandates of the Due Process Clause of the Constitution, Steven Stoll requests the Court enter an order declaring a mistrial in

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this case, and any other relief the Court deems just and proper. Respectfully submitted, s/ Robert N. Nicholson Florida Bar No. 933996 Robert@NicholsonLawGroup.com Nicholson Law Group, P.A. 200 South Andrews Avenue, Suite 100 Fort Lauderdale, Florida 33301 Telephone: (954) 351-7474 Facsimile: (954) 351-7475 Michael S. Pasano Florida Bar No. 0475947 CARLTON FIELDS 100 S.E. 2nd Street 4200 Miami Tower Miami, Florida 33131-2114 Telephone: (305) 530-0050 Facsimile: (305) 530-0055 E-mail: mpasano@carltonfields.com Bruce Zimet, Esq. 1 Financial Plaza Suite 2612 Ft. Lauderdale, Florida 33394 Telephone: (954) 764-7081 Facsimile: (854) 760-4421 E-mail: bazimetlaw@aol.com Attorneys for Defendant Steven Stoll

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CERTIFICATE OF SERVICE I hereby certify that on September 5, 2011, 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 or pro se parties identified below in the manner specified, 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 electronically Notices of Electronic Filing. s/ Robert N. Nicholson SERVICE LIST United States v. Guaracino, et al. Case No. 10-60194-CR-COHN/SELTZER United States District Court Southern District of Florida
Jared Strauss, Esq. Jared.Strauss@usdoj.gov United States Attorneys Office 500 East Broward Boulevard, 7th Floor Fort Lauderdale, Florida 33301-3002 (954) 356-7255 x3593 (954) 356-7336 (fax) Attorney for Plaintiff United States of America Via Electronic Court Filing Michael Patrick Sullivan, Esq. Pat.sullivan@usdoj.gov 99 Northeast 4th Street Miami, Florida 33132 (305) 961-9274 (305) 536-4675 (fax) Attorney for Plaintiff United States of America Via Electronic Court Filing Jordan M. Lewin, Esq. Lewinlaw@gmail.com Downtown Legal Center 46 Northeast 6th Street, Suite 104 Miami, Florida 33132 (305) 577-8525 (305) 441-1423 (fax) Attorney for Defendant Dennis Guaracino, Jr. Via Electronic Court Filing Laurie E. Rucoba, Esq. laurie.rucoba@usdoj.gov United States Attorneys Office 500 East Broward Boulevard, 7th Floor Fort Lauderdale, Florida 33301-3002 (954) 356-7255 x3613 (954) 356-7336 (fax) Attorney for Plaintiff United States of America Via Electronic Court Filing Michael Dennis Walsh, Esq. mdwalsh@bellsouth.net 46 Northeast 6th Street Miami, Florida 33132 (305) 444-7700 (305) 441-1423 (fax) Attorney for Defendant Joseph Guaracino Via Electronic Court Filing Howard Leslie Greitzer, Esq. hgreitzer@lyonssanders.com Lyons & Sanders 1301 East Broward Blvd, Suite 220 Fort Lauderdale, Florida 33301 (954) 467-8700 (954) 763-4856 (fax) Attorney for Defendant Matthew Gulla Via Electronic Court Filing

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Anthony M. Livoti, Esq. amlpa@bellsouth.net 721 Northeast 3rd Avenue Fort Lauderdale, Florida 33304 (954) 463-3777 (954) 463-3792 (fax) Attorney for Defendant Joseph Lagrasta Via Electronic Court Filing

Deric Zacca, Esq. dericzacca@dczlaw.com Cabrera & Zacca, LLP Monarch Professional Centre 12781 Miramar Pkwy, Suite 303 Miramar, Florida 33027-2908 (954) 450-4848 (954) 450-4204 (fax) Attorney for Defendant Casey Mittauer Via Electronic Court Filing Fred Haddad, Esq. Dee@FredHaddadLaw.com 1 Financial Plaza Suite 2612 Fort Lauderdale, Florida 33394 (954) 467-6767 (954) 467-3599 (fax) Attorney for Defendant Rene Rodriguez, Jr. Via Electronic Court Filing Jayne Claire Weintraub, Esq. jweintraub@saleweintraub.com Wachovia Financial Center 200 South Biscayne Blvd. Miami, Florida 33131 (305) 374-1818 (305) 379-0069 (fax) Attorney for Defendant Robert Depriest Via Electronic Court Filing David William Macey, Esq. dm@davidmacey.com David W. Macey, P.A. 2699 South Bayshore Drive, 7th Floor Coconut Grove, Florida 33133 (305) 860-2562 (305) 675-5841 (fax) Attorney for Defendant Joseph Derosa Via Electronic Court Filing

Michael E. Dutko, Esq. medtko@aol.com Bogenschutz, Dutko & Kroll, PA 600 South Andrews Avenue Suite 500 Fort Lauderdale, Florida 33301 (954) 764-2500 (954) 764-5040 (fax) Attorney for Defendant Daryl Radziwon Via Electronic Court Filing Alan Randall Haas, Esq. arandallhaas@yahoo.com 600 South Andrews Avenue Fort Lauderdale, Florida 33301 (954) 763-9211 (954) 467-8806 (fax) Attorney for Defendant Jacqueline Trumbore Via Electronic Court Filing Steven Hunter Kassner, Esq. kassners@bellsouth.net 4000 Ponce de Leon Suite 470 Coral Gables, Florida 33146 (305) 740-5405 (305) 278-7795 (fax) Attorney for Defendant Joseph Derosa Via Electronic Court Filing

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Bradford M. Cohen, Esq. lawronin@aol.com Bradford Cohen Law 1132 Southeast 3rd Avenue Fort Lauderdale, Florida 33316 (954) 523-7774 (954) 523-2656 (fax) Attorney for Defendant John Velez Via Electronic Court Filing

Martin Alan Feigenbaum miamivicelaw@aol.com P.O. Box 545960 Surfside, Florida 33154 (305) 866-8334 (305) 866-8335 Attorney for Defendant Steven Orchard Via Electronic Court Filing

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