Unites States v. Pokerstars, et al
Filing
218
AFFIRMATION of Richard Levitt in Support re: 217 FIRST MOTION to Stay Civil Proceedings as to Raymond Bitar.. Document filed by Raymond Bitar. (Attachments: # 1 Text of Proposed Order Staying Proceedings)(Levitt, Richard)
UNITED STATES DISTRICT COURT
SOUTERN DISTRICT OF NEW YORK
-------------------------------------------------------X
UNITED STATES OF AMERICA,
Plaintiff,
11 CV 2564 (LBS)
v.
POKERSTARS, et al.,
AFFIRMATION IN
SUPPORT OF UNOPPOSED
MOTION FOR STAY
Defendants,
ALL RIGHT, TITLE AND INTEREST IN
THE ASSETS OF POKERSTARS, et al.,
Defendants-In-Rem.
-------------------------------------------------------X
RICHARD LEVITT affirms the following under penalties of perjury:
1.
I represent Claimant Raymond Bitar in the above-captioned matter and
submit this affirmation in support of the within motion, without opposition from the
government, to stay these proceedings pending the outcome of the criminal charges
pending against Mr. Bitar in United States v. Raymond Bitar, 12 CR. 529 (BSJ). A
proposed Order is attached.
2.
On March 10, 2011, Mr. Bitar and ten others were charged in the Southern
District of New York, in a sealed nine-count indictment, with conspiracy to violate the
Unlawful Internet Gambling Enforcement Act, operation of an illegal gambling business,
conspiracy to commit bank and wire fraud, and conspiracy to commit money laundering.
See United States v. Scheinberg et al., 10 Cr. 336 (LAK).
3.
On April 15, 2011 and September 20, 2011 the United States filed a civil
Verified Complaint and First Amended Verified Complaint, respectively. The claims in
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these Complaints substantially overlap with those allegations made in the initial
Indictment and added additional claims that the Full Tilt defendants, including Bitar,
defrauded their customers. This Complaint seeks, among other relief, in rem forfeiture of
all Full Tilt assets and all proceeds derived from the alleged illegal acts, including
gambling (First Claim for Relief), bank and wire fraud (Second Claim for Relief) and
money laundering (Third Claim for Relief). In all, one billion dollars is sought from Full
Tilt Poker and $40,954,783.53 is sought from Mr. Bitar. See First Amended Complaint,
p. 89. Additionally, numerous of Full Tilt’s and Mr. Bitar’s bank accounts have been
seized pursuant to the Post-Indictment Restraining Order.
4.
Mr. Bitar was not in the United States when the initial indictment was
filed, but returned voluntarily on or about July 2, 2012 and has been arraigned on a
superseding indictment that added charges reflecting the broader fraud allegations of the
First Amended Verified Complaint. United States v. Bitar, 10 Cr. 336 (LAK)(S8).
Subsequently, Mr. Bitar’s case was severed, reassigned to Judge Jones and given a new
docket number: 12 Cr. 529 (BSJ). Mr. Bitar is presently at liberty on bail.
5.
“The weight of authority in this Circuit indicates that courts will stay a
civil proceeding when the criminal investigation has ripened into an indictment.” In re
Par Pharmaceutical, 133 F.R.D. 12, 13 (S.D.N.Y. 1990) (citing cases for this
proposition); see also Dresser Industries, 628 F.2d at 1375-76 (A “strong[] case for
deferring civil proceedings until after completion of criminal proceedings is where a
party under indictment for a serious offense is required to defend a civil or administrative
action involving the same matter.”); Hicks v. New York, 268 F. Supp. 2d 238, 242
(E.D.N.Y. 2003); American Express, 225 F. Supp. 2d at 265; Brock v. Tolkow, 109
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F.R.D. 116, 119 (E.D.N.Y. 1985); Judge Milton Pollack, Parallel Civil and Criminal
Proceedings, 129 F.R.D. 201, 203 (S.D.N.Y 1989) (“The most important factor at the
threshold is the degree to which the civil issues overlap with the criminal issues”). This
rule reflects constitutional, statutory and commonsense concerns. Although stays are not
constitutionally mandated, see Nosik v. Singe, 40 F.3d 592, 596 (2d Cir. 1994), courts
recognize that a defendant’s Fifth Amendment rights are jeopardized by parallel
proceedings where, e.g., a defendant is required to choose between incriminating himself
at a deposition or suffering a negative inference should he refuse to speak. See Sterling
Nat. Bank, 175 F. Supp. 2d at 578 (“There is no question that any defendant facing
parallel criminal and civil litigation is hard put to decide whether to waive the privilege
and give potentially damaging testimony or to assert it at the risk of having a Court or
jury draw adverse inferences against him in the civil case.”).
6.
Here, Mr. Bitar, without opposition from the government, posits that a
stay of these proceedings pending the outcome of the pending indictment is in the mutual
interest of the parties and is otherwise appropriate upon application of the relevant
criteria, including: 1) the extent to which the issues in the criminal case overlap with
those presented in the civil case; (2) the status of the case, including whether the
defendants have been indicted; (3) the private interests of the plaintiff in proceeding
expeditiously weighed against the prejudice to plaintiffs caused by the delay; (4) the
private interests of and burden on the defendants; (5) the interests of the courts; (6) the
interests of persons not parties to the civil litigation; and (7) the public interest.
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WHEREFORE, Raymond Bitar respectfully requests that the Court endorse the
accompanying proposed Order staying the instant proceedings against Mr. Bitar until the
conclusion of the parallel criminal proceedings in United States v. Bitar, 12 Cr. 529
(BSJ).
Dated: New York, New York
July 12, 2012
Respectfully submitted,
____________________________________
RICHARD LEVITT
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