Case 0:13-cr-60240-WPD Document 65 Entered on FLSD Docket 03/05/2014 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. 13-60240-CR-DIMITROULEAS

UNITED STATES OF AMERICA, Plaintiff, vs. RICHARD ALTOMARE, Defendant. ______________________________/ DEFENDANTS MOTION FOR NEW TRIAL AND RENEWED MOTION FOR JUDGMENT OF ACQUITTAL

Defendant RICHARD ALTOMARE, through counsel, and pursuant to Fed.R.Crim.P. Rule 29[c] and Rule 33, hereby files this his Motion for New Trial and Renewed Motion for Judgment of Acquittal, as to all counts of conviction, and in support thereof, states the following: 1. Defendant Altomare was charged by an Indictment with a substantive mail fraud case and three counts of securities fraud. 2. 3. 4. On February 25, 2014, a jury found Defendant guilty of all four counts in the Indictment. This Court denied the Rule 29 motions for judgment of acquittal, during the trial. Judgment of acquittal is required on Count 1 for three reasons: 1) the Indictment contains a defect in the date of the alleged mailing of the stock (it contains year 2009 as opposed to year 2013 which was presented at trial in 9 of the Indictment); 2) the Government did not establish an actual mailing or the use of mails (as there was no proof at trial that mails were used to send stock certificates no witness established the foundation for use of the mails); and because: 3) the standard jury instruction on entrapment is defective in that it replicates

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(and therefore draws undue attention) the reasons why entrapment is not applicable. 5. Judgment of acquittal is required on Counts 2 through 4 because the Government failed to establish that Defendant caused three stock transactions to take place by the undercover law enforcement officer (FBI Agent Spota) after a press release was issued, and that such a transaction actually constituted stock fraud as defined in 15 USC 78j(b) and 78ff(a). Furthermore, the Government failed to prove that the press release that preceded the stock transactions in Counts 3 and 4 was actually false. Finally, for the same reasons as in Count 1, the standard jury instruction on entrapment is defective on its face. Defendant Altomare did not chose the dates of the stock transactions (1 on March 15, 2013 and 2 on March 26, 2013), and even if he did, he was entrapped as a matter of law. 6. This Court determined that Defendant was not entrapped as a matter of law, and reasoned that any issue of intent must be presented to the jury. However, in Jacobsen v. U.S., 503 U.S. 540 (1992), the U.S. Supreme Court held that a court may find entrapment as a matter of law: (The prosecution failed, as a matter of law, to adduce evidence to support the jury verdict that Jacobson was predisposed, independent of the Government's acts and beyond a reasonable doubt, to violate the law by receiving child pornography through the mails. In their zeal to enforce the law, Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.). 7. In this case, there was ample evidence that Defendant Altomare was first contacted by the informant, Robert Weidenbaum. Weidenbaum knew that Altomare was financially strapped from his prior dealings with the U.S. Government and the S.E.C., and therefore, convinced 2

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him to try to have stock sent to him from Sunset Brands. However, it was equally clear from the evidence adduced at trial that Defendant Altomare resisted this request for quite some time, and persisted in assistance from Weidenbaum in providing capital that would be collateralized by gems and diamonds (an object of which was clearly not subject to securities regulations). Then, the Government created a rouse to steer Defendant Altomare away from the otherwise legal gem and diamond deals (by using a fake appraiser) and then persisted in the stock transactions. Accordingly, the Government certainly did not produce ample

evidence for the jury to determine that Defendant Altomare was predisposed to commit a stock fraud rather, all that the Government adduced was that Defendant Altomare was desperately seeking funding based on gems and diamonds. WHEREFORE, Defendant Altomare respectfully requests that this Court enter a judgment of acquittal pursuant to Rule 29[c] or grant a new trial pursuant to Rule 33, as to all counts of conviction, or grant any other relief that is just and appropriate under the circumstances, for any or all of the reasons herein. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished to: Alejandro Soto, Esq., Assistant United States Attorney, by filing with CM/ECF, on this 5th day of March, 2014. Respectfully submitted,

/s/ Valentin Rodriguez

___________________________ VALENTIN RODRIGUEZ, ESQ. Valentin Rodriguez, P.A. 120 S. Dixie Highway, Suite 204 West Palm Beach, FL 33401 (561) 832-7510 (561) 537-7050 (facsimile) Fla Bar No. 047661 Counsel for Defendant Altomare