Case 1:14-cr-10284-NMG Document 415 Filed 04/07/16 Page 1 of 5

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA,
v.
(1) DUSTIN J. DENUNZIO,
(2) ANTHONY GATTINERI, and
(3) CHARLES A. LIGHTBODY,
Defendants.

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Criminal No: 14-CR-10284-NMG

MOTION FOR A JUDGMENT OF ACQUITTAL

Defendants Dustin DeNunzio, Charles Lightbody, and Anthony Gattineri respectfully
submit this motion for a judgment of acquittal pursuant to the Due Process Clause and
Compulsory Process Clause of the United States Constitution. Although the Court has indicated
its intention to deny this motion to dismiss, Defendants file it in order to ensure preservation of
the record. Because this motion technically will not be ripe until FBTs business lawyer Paul
Feldman invokes his Fifth Amendment right to testify, the Court may hold it in abeyance until
that time.
BRIEF SUMMARY OF FACTS
As Defendants have laid out in a recent prior filing, FBTs business counsel, Paul
Feldman, is an indispensable witness in this case. Mr. Feldman is a highly-respected business
lawyer, receiving numerous awards and professional recognition over his roughly 30-year career,
and he is now on his second tenure as President of Davis Malm & DAgostine. For two years,
the Government considered Mr. Feldman an essential prosecution witness: The Government

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examined Mr. Feldman for roughly three hours in the grand jury, under a grant of statutory
immunity; the Government placed Mr. Feldman on its witness list; and the Government advised
defense counsel that it was no surprise that the Government would be calling Mr. Feldman in
its case-in-chief, even if it meant working around Mr. Feldmans prior scheduled trip to Israel.
However, very soon after receiving the defenses exhibit list which included emails
involving Mr. Feldman that deeply undermined the Governments fraud charges 1 the
Government abruptly shifted course. The Government informed Mr. Feldmans counsel that Mr.
Feldman would not be called as a prosecution witness. When the defense learned of this, it
contacted Government counsel to inform them that the defense would be calling Mr. Feldman as
a defense witness. The Government, however, told the defense that it would not seek an
additional order of statutory immunity for Mr. Feldman. The Government then made a public,
unredacted filing asserting that it has at least probable cause to believe Mr. Feldman was
complicit in the charged fraud scheme and then committed perjury and obstruction of justice in
the grand jury. The Governments explanation for this abrupt shift in course is that, less than
two weeks before trial, the Government suddenly recognized the significance of one email and
three lines of handwritten notes that it has had access to for years.
The defense has reason to believe that, in light of the Governments new position, Mr.
Feldman will, if and to the extent this Court allows, invoke his Fifth Amendment rights and
refuse to testify at trial. The result of this will be a loss of critical defense evidence that goes to
the heart of the case evidence that cannot be replaced merely with reading Mr. Feldmans
prior sworn grand jury testimony to the jury.

These emails were all within the scope of a prior privilege waiver, and thus the prosecution
team reasonably has had access to these emails for approximately two years.
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ARGUMENT
[T]he due process clause does constrain the prosecutor to a certain extent in her decision
to grant or not to grant immunity.

If a prosecutor abuses her discretion by intentionally

attempting to distort the fact-finding process, then a due process violation exists and a court may
order the prosecutor to grant immunity or face a judgment of acquittal. United States v. Angiulo,
897 F.2d 1169, 1191 (1st Cir. 1990). Such intentional distortion could occur in two ways. First,
the government could intimidate or harass potential defense witnesses to discourage them from
testifying for example, by threatening them with prosecution for perjury or other offenses. . . .
Second, the government could intentionally distort the fact-finding process by deliberately
withholding immunity from certain prospective defense witnesses for the purpose of keeping
exculpatory evidence from the jury. Id. at 1191-92.
The Governments response to Angiulo and its progeny is two-fold: First, the
Government says that it will be sufficient for Defendants to introduce Mr. Feldmans grand jury
transcript into evidence, transforming Mr. Feldman from a live witness into an out-of-court
declarant. Second, the Government says that providing Mr. Feldman statutory immunity for trial
will prejudice the Governments interest in potentially prosecuting Mr. Feldman for grand jury
perjury and obstruction of justice and conspiring with Defendants to defraud Wynn Resorts. The
Governments first explanation exaggerates the degree to which Mr. Feldmans prior sworn
testimony replaces, either in substance or in effect, an in-court examination.2 The Governments
second explanation makes very little sense: Mr. Feldmans prior grand jury testimony, provided
under a grant of statutory immunity, provides an insurmountable Kastigar problem to any fraud

The defense reserves the right to admit other out-of-court statements made by Mr. Feldman
either as non-hearsay or under an applicable Rule 804 exception or Rule 807s residual hearsay
exception.
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prosecution of Mr. Feldman; 3 and the Governments ability to prosecute Mr. Feldman for
misconduct in the grand jury (either perjury or obstruction) will not plausibly be impaired by Mr.
Feldman testifying at trial under an immunity grant. Because the Governments professed
interest in a potential prosecution of Mr. Feldman could not plausibly be impaired by Mr.
Feldman testifying at trial under an immunity grant, that professed interest can carry no weight in
the Angiulo analysis.
Respectfully submitted,
/s/ Joshua S. Levy
Joshua S. Levy (BBO #563017)
Aaron M. Katz (BBO #662457)
Alexandra L. Roth (BBO # 687847)
Ropes & Gray LLP
Prudential Center
800 Boylston St.
Boston, MA 02199
Phone: (617) 951-7000
Fax: (603) 951-7050
Joshua.Levy@ropesgray.com
Aaron.Katz@ropesgray.com
Alexandra.Roth@ropesgray.com
Attorneys for Dustin DeNunzio
/s/ Charles W. Rankin
Charles W. Rankin (BBO #411780)
Rankin & Sultan
151 Merrimac St. #200
Boston, MA 02114
crankin@rankin-sultan.com
Attorney for Charles Lightbody

Should it become inescapable that Mr. Feldman will validly invoke his Fifth Amendment rights,
such that this motion becomes ripe should the Government persist in its refusal to provide
immunity, the defense will submit to the Court an attorney proffer of the evidence it would have
elicited from Mr. Feldman on the stand.
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/s/ Michael J. Connolly

Michael J. Connolly (BBO #638611)
Laura B. Angelini (BBO #658647)
Hinckley, Allen & Snyder LLP
28 State Street
Boston, MA 02109
Phone: (617) 345-9000
Fax: (617) 345-9020
mconnolly@hinckleyallen.com
langelini@hinckleyallen.com
Attorneys for Anthony Gattineri
Dated: April 7, 2016

CERTIFICATE OF SERVICE
I, Joshua S. Levy, hereby certify that, on April 7, 2016, true and accurate copies of the foregoing
were served on counsel for the Government through ECF.
/s/ Joshua S. Levy