UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA,
ATLAS IRON PROCESSORS, INC.
Case No. 97-0853-CR-Nesbitt
Magistrate Judge Robert L. Dubé
(February 11, 1998 Order of Reference)
RESPONSE OF THE UNITED STATES
DEFENDANTS' MOTION TO STRIKE
BRIEF OF UNITED STATES TO
MEMORANDUM OF THE GIORDANO
IN OPPOSITION TO
MOTION IN LIMINE OF THE UNITED
TO EXCLUDE FROM
ADMISSION AT TRIAL ALL
TESTS AND RESULTS, OR IN THE
TO FILE SURREPLY, AND
On June 19, 1998, the United States filed an enlarged Reply Brief in
response to the Giordano defendants' memorandum opposing the United States'
Motion in limine to exclude from admission at trial private, ex parte polygraph
tests. Along with its enlarged Reply Brief, the United States also filed a separate
Motion and supporting memorandum requesting leave of Court to file its enlarged
Reply Brief instanter. In short, the enlarged Reply Brief was necessitated by the
complexity of the issues and the need to fully meet the numerous factual and legal
arguments raised by the defendants and their two experts.
Although the Giordano defendants suggest otherwise, the United States'
Motion for leave to file its Enlarged Reply Brief instanter was filed pursuant to (and
fully consistent with) Local Rule 7.1C(2), which requires prior permission of the
Court to file a reply brief in excess of 10 pages.
For reasons discussed more fully below, the Giordano defendants' motion to
strike the United States enlarged Reply Brief should be denied. In addition, the
Giordano defendants should not be permitted to file a surreply brief, since they
have raised no legitimate basis for doing so.
LAW AND ARGUMENT
What is really going on here is the Giordano defendants are upset that the
United States did not agree to allow them to file yet another "uncontested" surreply
brief -- this time in response to the government's Instanter Enlarged Reply Brief at
issue here. As discussed below, the Giordano defendants already have filed several
surreplies in this case. On or about July 7, 1998, counsel for David Giordano,
Roberto Martinez, called counsel for the United States, Richard Hamilton, and
offered not to contest our Instanter Enlarged Reply Brief if we agreed not to contest
giving them additional time within which to file yet another surreply in this case.
The United States rejected this offer on July 8, 1998. After having agreed
(generously) not to contest three previous surreplies filed by the Giordano
defendants, the proposed quid pro quo arrangement did not sit well with the United
States. Now, the Giordano defendants are trying to get even by belatedly asking
this Court to strike our Instanter Enlarged Reply Brief, even though they are out of
rule as to time. Their motion should be denied.
- THE MOTION TO STRIKE SHOULD BE DENIED
- The Giordano Defendants' Motion to Strike
Is Procedurally Defective And Should Be Denied
The Motion for leave to file the Instanter Enlarged Reply Brief which the
Giordano defendants' ask this Court to strike was filed by the United States on
June 18, 1998. Pursuant to Local Rule 7.1C: "Each party opposing a motion shall
serve and file an opposing memorandum of law no later than 10 days after service
of the motion as computed in the Federal Rules of Civil Procedure." L.R. 7.1C
(emphasis provided). Accordingly, under Local Rule 7.1C, the Giordano defendants'
motion to strike was required to be filed on or before July 2, 1998. The Giordano
defendants ignored Local Rule 7.1C and filed their motion to strike on July 15, 1998
-- 13 days after it was due.(1) The Giordano defendants' motion to strike, or in the
alternative, to file a surreply brief, is out of rule and should be denied.
- The United States' Motion To File Its Enlarged
Reply Brief Instanter Is Well-Taken and Should Granted
The United States' Motion to file its Instanter Enlarged Reply Brief is well-taken. In short, the additional length was necessitated by three factors: (1) the
complexity of the legal and factual issues raised by the Giordano defendants in
their opposing memorandum; (2) the overwhelming amount of negative materials
discrediting the Giordano defendants' principal expert (Dr. David C. Raskin), who
is one of the leading pro-polygraph experts in the United States, that the United
States was compelled to set forth to rebut the large body of materials the Giordano
defendants submitted in support of their opposing memorandum; and (3) the
serious misrepresentations made about the quality of the work performance of the
Giordano defendants' private polygraph examiner (Clifford Cormany) while he was
employed by the FBI. The Instanter Enlarged Reply Brief was dedicated solely to
meeting the numerous factual and legal arguments (and side-arguments) raised by
the Giordano defendants in their memorandum in opposition to the United States'
Motion in limine. Indeed, even a quick read of our Instanter Enlarged Reply Brief
shows that the United States has not wasted this Court's time in rehashing
arguments previously made in its Motion in limine and supporting Memorandum.
Rather, the enlarged reply was intended to benefit the Court by fully addressing
issues (primarily factual ones) that the government believes are critical to this
Court's deciding the substantive motion in limine.
- The Giordano Defendants' Side-Argument
About Local Rule 88.9A Is Not Well-Taken
The Giordano defendants' suggestion that the United States' Motion to file its
Instanter Enlarged Reply Brief is contrary to Local Rule 88.9A is misplaced. The
Giordano defendants misread this Rule; reading into it something that makes no
sense. The United States reads this Rule to require opposing counsel to confer prior
to filing motions only where such a conference may result in some agreement
between the parties that resolve the subject matter of the contemplated motion (e.g.,
two parties agreeing not to file a motion pending resolution of outstanding issues.)
L.R. 88.9A. This Rule has no application here. Surely, the United States and the
defendants in this case could not agree to bind this Court and force it to grant the
government's Motion to file its enlarged Reply Brief instanter. Such a decision is
solely within the discretion of this Court. Because the subject matter of the
government's Motion to file its Instanter Enlarged Brief could be resolved only by
this Court and not by the parties; any such conference between the parties is
meaningless. The Giordano defendants' reading of this Rule represents an
intrusion on this Court's discretion.
Instead, the United States proceeded in the correct manner contemplated
under the Local Rule 7.1C(2). The United States filed its Instanter Enlarged Reply
Brief; accompanying it with a Motion and supporting Memorandum asking
permission of this Court to do so instanter.
Ironically, on July 9, 1998, the Giordano defendants filed an enlarged
surreply in connection with the government's Notice of Alibi defense pursuant to
Fed. R. Crim. P. 12.1(a). See Joint Response of Defendant's Anthony J. Giordano,
Sr., Anthony J. Giordano, Jr., and David Giordano to the Government's Reply and
Proposed Order Precluding Defendants from Presenting any Alibi Witnesses at
Trial. This surreply brief was 14 pages long -- exceeding the page limit provided
in Local Rule 7.1C by 4 pages. Unlike the correct procedure followed by the United
States when it filed the Instanter Enlarged Reply Brief at issue here, the Giordano
defendants never sought permission of this Court to file their enlarged surreply in
connection with the Notice of Alibi.(2) On July 22, 1998, the United States filed a
Motion contesting this blatant disregard of applicable procedural rules. See
Memorandum of the United States Opposing Joint Response of the Giordano
Defendants to the Government's Reply and Proposed Order Precluding Defendants
from Presenting any Alibi Witnesses at Trial (filed on July 22, 1998). Apparently,
the Giordano defendants believe that the procedural rules they now embrace run
only one way and apply to the United States alone.
The Giordano defendants cite three cases in support of their motion to strike.
None of these cases interpret the local rules applicable within the Southern District
of Florida. Moreover, each of these cases stand only for the simple proposition that
it is within this Court's discretion whether to grant the United States' Motion for
leave to file its enlarged Reply Brief instanter. In Goltz v. University of Notre
Dame du Lac, 177 F.R.D. 638 (N.D. Ill. 1998), the district court rejected a party's
enlarged reply brief, but did so because the party never sought permission (i.e.,
leave) of the court to do so. Goltz, 177 F.R.D. at 642. Unlike in Goltz, the United
States has sought permission of this Court to file its Instanter Enlarged Reply
The Giordano defendants' reliance on Haynes v. Shoney's Inc., No. 89-30093-RV, 1991 WL 354933 (N.D. Fla., Sept. 27, 1991) is also misplaced. In Haynes, the
defendant moved to strike the plaintiff's 20-page response to a motion for a
protective order, arguing that the plaintiff had exceeded the court-ordered limit of
15 pages. Haynes at *11. In fact, the Haynes Court resolved the dispute by
striking only the offending addendum (a 20-page attachment) to the plaintiff's
response, leaving the remaining response unaffected. Indeed, the Judge in Haynes
stated that although the plaintiff's violated his order: "I do not consider this a
grievous violation which would justify striking the entire response." Id. In the only
other case cited by the Giordano defendants, Anderson v. Aurora Township, No. 97-C-2477, 1997 WL 802099 at *2 (N.D. Ill. Dec. 29, 1997), the party filing the
enlarged reply brief did not seek permission of the court to do so. Thus, this case,
too, is inapposite.
- THE GIORDANO DEFENDANTS' ALTERNATIVE
REQUEST TO FILE A SURREPLY SHOULD ALSO BE DENIED
In the alternative, the Giordano defendants ask this Court for permission to
file a surreply. This request is not well-taken and should also be denied.
To date, the United States has filed no surreplies in this case. Sure, the
United States would like to have the first and last word in every pleading filed with
this Court; but the rules of pleading are not set up that way. The United States
understands this; the defendants do not. Unlike the United States, the Giordano
defendants (either through company counsel or their individual counsel) have filed
surreplies on at least three occasions.(3) If the Giordano defendants are permitted to
file a surreply here, it will be their fourth time overall. Indeed, the Giordano
defendants' counsel apparently feel that they are entitled always to have the last
word. The United States made no objection to their first three surreplies. After
three such strikes, however, the defendants should be out. This Court should not
allow them to have another swing.
There is no express provision for surreplies in the Local Rules. Nonetheless,
counsel for the Giordano defendants have taken this extraordinary pleading and
made it common place. In the instant motion to strike, the Giordano defendants
state that they "welcome the opportunity" to submit a surreply brief. Giordano
Defendants' Memorandum in Support of Motion to Strike, p. 4. This is not
surprising. The Giordano defendants, however, provide no legitimate basis for
being allowed to file such a pleading.
In its Instanter Enlarged Reply Brief, the United States did nothing more
than meet the numerous factual and legal arguments and misrepresentations
raised by the Giordano defendants in their opposing memorandum. Now, the
Giordano defendants complain that government's Reply Brief is comprised of
"unwarranted, excessive and personal" attacks on their counsel and their experts.
(In a nutshell, that is all they offer in support of their request to file a surreply.) In
fact, the government's Reply Brief does no such thing. Instead, the Reply Brief
exposes the credibility of the Giordano defendants' experts and undermines the
legal arguments made by their defense counsel. Surely, the Giordano defendants
knew that once they proffered Dr. Raskin as their principal expert, the United
States would have considerable grist to undermine his pro-polygraph views --
which have been widely discredited by his peers and in the relevant case law.
Furthermore, surely the Giordano defendants knew the United States would run an
FBI check to establish the "accuracy" of their polygraph examiner's over-stated
The Giordano defendants now want an opportunity to rehabilitate their
experts by filing yet another surreply in this case. Of course, this decision is
completely within this Court's discretion. The United States, however, respectfully
submits that this request should be denied. The United States believes that the
issues raised in its Motion in limine have been fully discussed and treated by the
For the reasons stated more fully above, the Giordano defendants' motion to
strike the Instanter Enlarged Reply Brief of the United States should be denied.
Moreover, the Giordano defendants request, in the alternative, to file a surreply is
wholly unfounded and should also be denied by this Court.
WILLIAM J. OBERDICK
Cleveland Field Office
RICHARD T. HAMILTON,
Court I.D. No. A5500338
PAUL L. BINDER
Court I.D. No. A5500339
IAN D. HOFFMAN
Court I.D. No. A5500343
U.S. Department of Justice
55 Erieview Plaza, Suite 700
Cleveland, OH 44114-1816
FAX: (216) 522-8332
CERTIFICATE OF SERVICE
I hereby certify that true and correct copies of the following:
- Response of the United States Opposing the Giordano Defendants' Motion to
Strike the Instanter Enlarged Reply Brief of United States to Memorandum of
the Giordano Defendants in Opposition To Motion in Limine of the United
States to Exclude from Admission at Trial All Evidence Related to Polygraph
Tests and Results, or in the Alternative, for Leave to File Surreply, and
Supporting Memorandum; and
- Order Denying Giordano Defendants' Motion to Strike the Reply Brief of
United States to Memorandum of the Giordano Defendants in Opposition To
Motion in Limine of the United States to Exclude from Admission at Trial All
Evidence Related to Polygraph Tests and Results, or in the Alternative, for
Leave to File Surreply, and Supporting Memorandum.
were sent via Federal Express to the Office of the Clerk of Court on this 22nd day of
July, 1998. Copies of the above-captioned pleadings also were served upon the
defendants via U.S. Mail on this 22nd day of July, 1998.
Benedict P. Kuehne, Esq.
Sale & Kuehne, P.A
Nationsbank Tower, Suite
100 Southeast 2nd Street
Miami, FL 33131-2154
Robert C. Josefsberg, Esq.
Podhurst, Orseck, Josefsberg,
Eaton, Meadow, Olin &
City National Bank Building, Suite 800
25 West Flagler
Miami, FL 33130-1780
Roberto Martinez, Esq.
Colson, Hicks, Eidson, Colson
Matthews, Martinez &
First Union Financial Center, 47th Floor
200 South Biscayne
Miami, FL 33131-2351
WILLIAM J. OBERDICK
Cleveland Field Office
Ralph E. Cascarilla, Esq.
Walter & Haverfield
Cleveland, OH 44113-2253
Patrick M. McLaughlin, Esq.
McLaughlin & McCaffrey, L.L.P.
Plaza, Suite 740
1801 East Ninth Street
Cleveland, OH 44114-3103
Marc S. Nurik, Esq.
Ruden, McClosky, Smith, Schuster,
First Union Plaza, 15th Floor
200 East Broward Boulevard
Post Office Box
Fort Lauderdale, FL 33301
RICHARD T. HAMILTON, JR.
I.D. No. A5500338
U.S. Department of Justice
55 Erieview Plaza, Suite 700
Cleveland, OH 44114-1816
FAX: (216) 522-8332
1. The certificate of service accompanying the Giordano defendants' motion to
strike and supporting memorandum states that these pleadings were filed on July 15,
1998. Inexplicably, the United States did not receive these pleadings until 11:31 a.m. on
July 21, 1998. The late receipt of these pleadings deprived the United States of the
opportunity of filing a more prompt response.
2. Moreover, the Giordano defendants never conferred with the United States
seeking an agreement to allow them to file this enlarged surreply response. Thus, the
Giordano defendants violated their own understanding of Local Rule 88.9.
3. The surreplies filed by the Giordano defendants, either individually or on behalf of their company (defendant Atlas Iron Processors, Inc.) include the following: (1)
defendant Atlas Iron Processors, Inc., filed a surreply in response to the United States'
Reply Brief in support of its Motion for a Protective Order governing the disclosure of grand
jury materials; (2) the defendant Anthony J. Giordano, Jr. filed a surreply in response to
the United States' Reply Brief in support of its Motion to Disqualify Ralph E. Cascarilla
from representing Giordano, Jr. at trial; (3) the Giordano defendants filed a joint surreply
in response to the United States Reply Brief in Support of its Request for Notice of Alibi
Defense Pursuant to Rule 12.1 and proposed Order precluding alibi witnesses from
testifying at trial. Essentially, the Giordano defendants' request for a supplemental Bill of
Particulars is accompanied by a memorandum that also is best characterized as a surreply,
though not styled as such. If nothing else, the Giordano defendants have demonstrated a
willingness to put pen to paper until being shut down by this Court, making surreplies a
common staple of their pleading practice.