United States v. Kaplan
2:23-cr-00293
| E.D.N.Y | Aug 1, 2025Background:
- Adam and Daniel Kaplan, twin brothers, were indicted in the Eastern District of New York for conspiracy to commit wire fraud, wire fraud, investment advisor fraud, and money laundering, related to a multi-year scheme defrauding clients of at least $5 million.
- Adam Kaplan, while on bond, allegedly committed further crimes including wire fraud conspiracy, bank fraud conspiracy, and attempted obstruction of justice, resulting in bond revocation.
- A Superseding Indictment (SI) expanded charges, including additional counts against Adam related to subsequent criminal conduct and obstruction.
- The Kaplans filed extensive pre-trial motions to dismiss or sever counts, suppress evidence (notably a seized cell phone), obtain certain discovery, and compel the turnover of notes from their former counsel withheld on a retaining lien.
- All substantive pre-trial relief was denied, except for the court's decision to revisit certain suppression issues upon later factual development, specifically after disclosure of government witness material (so-called 3500 material).
Issues:
| Issue | Defendants' Argument | Government's Argument | Held |
|---|---|---|---|
| Dismiss Counts 1 & 17 as duplicitous | Counts combine separate conspiracies, risking juror confusion. | SI properly alleges a single, ongoing conspiracy via multiple means. | Denied; conspiracy may be charged as a single count if acts are part of one scheme. |
| Dismiss Money Laundering Counts 13–16 | Transactions not linked to separate wire fraud acts; double-charging. | Need not specify predicate activity; counts are sufficiently distinct. | Denied; indictment need not provide detail, merits addressed at trial. |
| Dismiss or Order Bill of Particulars (various counts) | SI too vague, conflates defendants, fails to specify victims/acts. | SI and discovery provide adequate notice; bill would improperly demand government trial strategy. | Denied; SI adequate and discovery sufficient. |
| Severance of Trials/Counts | Spillover prejudice (especially as twins); obstruction counts unrelated. | Evidence overlaps; proper joinder; limiting instructions suffice. | Denied; joinder appropriate, prejudice minimal or curable. |
| Compel Release of Counsel's Witness Statements | Essential to defense, prior counsel's retaining lien ought to yield. | Defendants must satisfy Pomerantz factors, particularly inability to pay. | Denied; retaining lien valid, no adequate showing by defendants. |
| Suppress Evidence from Seized Cell Phone | Warrantless seizure of phone violated Fourth Amendment. | Plain view doctrine applies, probable cause articulated, warrant later obtained for search. | Denied; plain view doctrine satisfied, no hearing needed. |
| Suppress Statements/Dismiss Counts under Hammad/Massiah | Statements elicited by government agent (CC-1) after right to counsel attached. | Government may investigate uncharged conduct, contact via informant after initial crimes. | Denied without prejudice, may renew post-disclosure of witness material. |
Key Cases Cited
- United States v. Bustos de la Pava, 268 F.3d 157 (2d Cir. 2001) (dismissal of indictment before trial is an extraordinary remedy)
- United States v. Sturdivant, 244 F.3d 71 (2d Cir. 2001) (duplicity in indictments and standards)
- United States v. Tutino, 883 F.2d 1125 (2d Cir. 1989) (single conspiracy can include varied means and acts)
- United States v. Peters, 543 F. App’x 5 (2d Cir. 2013) (alleging conspiracy to commit multiple crimes is not duplicitous)
- Maryland v. Buie, 494 U.S. 325 (1990) (permissible searches incident to arrest inside a dwelling)
- Horton v. California, 496 U.S. 128 (1990) (plain view doctrine for warrantless seizures)
- Minnesota v. Dickerson, 508 U.S. 366 (1993) (plain view doctrine requirements)
- Texas v. Brown, 460 U.S. 730 (1983) (probable cause required for plain view seizure)
- Bruton v. United States, 391 U.S. 123 (1968) (value of joint trials and limiting instructions)
- Zafiro v. United States, 506 U.S. 534 (1993) (severance under Rule 14 and curative instructions)
- United States v. Rittweger, 524 F.3d 171 (2d Cir. 2008) (joinder under Rule 8(b))
- United States v. Babilonia, 854 F.3d 163 (2d Cir. 2017) (plain view seizure of cell phones during arrest)
- Pomerantz v. Schandler, 704 F.2d 681 (2d Cir. 1983) (factors for overcoming attorneys’ retaining lien in criminal cases)