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Kroll Report 1-13-2004.pdf Moll The Risk Consulting Company Prepared for: Cristina Cuervo The City of Miami Beach CONFIDENTIAL REpORT January 13,2004 RESTRICTED USE WARNING This report was prepared by Kroll Associates, Inc. at the request of the client to whom it is furnished. The client agrees that reports and information received from Kroll Associates are strictly confidential and are intended solely for the private and exclusive use of the client. Any other use and any communication, publication or reproduction of the report or any portion of its contents without the written consent of Kroll Associates, Inc. is strictly forbidden. The client agrees to indemnify and hold harmless Kroll Associates, Inc. against any damages or claims resulting from such unauthorized use. TABLE OF CONTENTS INTRODUCTION ............... .................................... .................. ................................................................... 1 METH 0 DO LOGy................... ................. ............................................ ........................ ............................... 1 EXECUTIVE SUMMARY ............................................................................... ........................................... 1 KEY FIND IN GS ....................... ................................ ........... ......................................................................... 3 MARK A. SIFFIN ... ....... .......... ......... ... ....... ........ ......... ...... ........... ............... ...... ............ 3 Personal....................................................................................................................... 3 Professional Licenses ....... ...... ...... ....... ... ................. ... ...... ..... ... .......... ...... ............... .... 3 Business Affiliations. .... .... ...... ...... ................ ... ............. ... .... ........ ......... .... ...... ......... ... 4 PUB LI C RECORDS ....... .............................................................................................................................. 5 o HI 0 ...................................................................................................................... ....................................... 5 U.S. District Court for the Northern District of Ohio ..................................................... 5 Court of Common Pleas - Cuyahoga County, Ohio ....................................................... 6 6200 Oak Tree Blvd. LLC vs. Fremont Investment & Loan, et al., Case No. 03512877, Filed: October 20, 2003..... ......... .......... ...... .............. ........ ..... ........ ........... .......... ..... .... 6 NEW JERSEy.... ...................................................................................... ............................. ....................... 7 U.S District Court for the District of New Jersey - Newark Division ............................ 7 Superior Court of New Jersey- Bergen County............................................................ 7 The State of New Jersey vs. Mark Alfred Sijfin............................................................. 7 ILLINOIS ..... ................................................................................................................................................. 7 U.S. District Court for the Northern District of lllinois.................................................. 7 U.S. District Court for the Central District of lllinois- Danville Division .................... 7 Central District of lllinois- Danville Division ............................................................ 7 United States of America vs. Robert E. Miller, MarkA. Sijfin, et al.............................. 7 CALIFORNIA ............. ................................................................................................................................. 8 U.S. District Court for the Northern District of California- San Francisco Division ..... 8 Superior Court of California- County of Sonoma......................................................... 8 U.S. District Court for the Central District of California ............................................... 8 Los Angeles Superior Court. ............ ........ ...... ..... ...... ................ ......... .......... ........ .... .... 8 Williams Wayne S., vs. Maefield Development, et ai., Case No. BC269103, Filed: February 28, 2002 .... .......... ... ...... ....... ......... ......... ....... ... ..... ... .......... ............. .............. 8 Media ......... ...... ............ ..... .... ..... .... .......... .... .................. ........... ... ......... .... ............... ....... 9 NEVADA .......................... ........................................... .................................................................................. 9 Media ... ...... ....... ............. ........ ............ ...... ........ .... .... ...... ...... ........ .... ........ ...... .... ..... ........ 9 John Francis Mazzan vs. Ely State Prison, E.K. McDaniel, Respondent, Case No. C79126, Filed: December 1979.. ... ...... ..... ...... .... ...... ...... ........ ....... ... ........ .... ...... ....... 10 INDIANA... ........................... ............................................................................ ........................................... 11 U.S. District Court for the Southern District of Indiana ............................................... 11 Monroe County. .......... ...... .......... .............. ................ ............ ...... ............ ...... ........ ........ 11 Recorder's Office....... ............ ..... ... ... ...... .... ........ ...... .... ........ .... .... .............. .... .... .... ... 11 Liens and Judgments.. ....... .... .......... .......... .............. ....... ........... .... ................... .......... 11 Uniform Commercial Code- Financial Statements................................................... 12 ARIZONA ....................... ...... ........................................ .......... ................ ........ .......... .......................... ........ 12 U.S. District Court for the District of Arizona.............................................................. 12 Coconino County... .............. ...... ........ .... ...... ........ ...... .... ......... ... ...... ...... .......... ........ ..... 12 Misdemeanor Records ...... ........ .... ........ ............, ...... ..... .... .......... ........ ......... ..... .... .... 12 FLORID A .................................................................................................................................................... 13 U.S. District Court for the Southern District of Florida ............................................... 13 INTERNA TIONAL - TANGIERS, MOROCCO ..................................................................................13 Arrest of Mark Siffin .... ...... ........ .... .............. .... ..................... ..... .......... ...... ...... ........ .... 13 ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL INTRODUCTION Kroll, Inc. ("Kroll") was retained by the City of Miami Beach to conduct a due diligence investigation of Mark A. Siffin. The objective of the assignment was to develop public information regarding Mr. Siffin's legal, financial, and business history and to determine if there were any issues of current or potential concern. The City of Miami Beach was interested in said information in order to assess the possibility of entering into a business relationship with the subject. METHODOLOGY Our investigation was conducted through a review of electronically available databases which included, but were not limited to, litigation records (both civil and criminal), bankruptcy filings, Unites States Tax Court petitions, liens, judgments, Secretary of State filings, limited partnership records, DBAs ("doing business as"), property ownership records, and media. Our database research focused on the states of Indiana, California, Ohio, Florida, Arizona, New Jersey, lllinois, and Nevada. However, limited database research involved nation-wide searches when feasible. I In addition to database research, Kroll conducted comprehensive on-site public record searches in the specific counties in which the subjects resides or resided and/or conducts or conducted significant business. EXECUTIVE SUMMARY Our investigation has revealed that Mark Alfred Siffin, the subject, and entities associated with him have been involved or associated with several controversial criminal and civil matters: · A 1979 Nevada Supreme Court record involving a murder and drug trafficking, which resulted in the conviction of the defendant, made reference to a Mark Siffin. Although not directly involved in the crime nor considered a suspect, Siffin was cited as an individual that may have been acquainted with the murder victim and defendant and who may be a valuable source of information in relation to the case. Court document cited Siffin at the time as being the subject of a Drug Enforcement Agency investigation involving drug trafficking and smuggling activities in Indiana and the same documents describe Siffin as a "major cocaine trafficker". 1 Database research has certain inherent limitations. Some databases and jurisdictions put information on line in a less timely and comprehensive manner than others. Further inaccuracies on the part of the database provider can include keystroke errors, etc. Accordingly, we rely on a combination of database research and public record analysis. ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL · Records from the Reno Police Department, dated February 5, 1979, indicated that Harry Douglas Warmbier and a friend and associate, Mark Alfred Siffin, "were involved in narcotics trafficking all the way from Ecuador through the Florida area into Bloomington and apparently all the way across the United States into Marin County, California, South Lake Tahoe, and EI Dorado County, California, the San Francisco area and Honolulu and Kona Hawaii." · DEA reports in the public record contained within the case file of the Nevada Supreme Court criminal case reported on November 21, 1978 that United States Customs records revealed an arrest of a Mark Alfred Siffin in Tangiers, Morocco in 1971 or 1972. The arrest charges included possession of approximately one kilogram of hashish. · The same DEA reports revealed that Mark Siffin was suspected of being "a major cocaine trafficker" and that as a partner in the Mae Company, he was "funneling large amounts of money in order to reinvest the funds in legitimate business areas". Furthermore, Mark Siffin was linked by the DEA to a nation-wide marijuana distribution operation based out of Gainesville, Florida. · In a 1973 case, The State of New Jersey vs. Mark Alfred Siffin, Mark Alfred Siffin was indicted on August 20, 1973 for unlawful possession of heroin with intent to distribute. · In a 1982 case, United States of America vs. Robert E. Miller et aI., Mark A. Siffin, along with several other defendants, was indicted for willfully and knowingly conspiring to distribute more than 1,000 pounds of marijuana. · Mark Siffin is associated with a defendant in a $50 million lawsuit in which the defendant foreclosed on a property owned by 6200 Oak Tree Blvd., LLC. Allegedly, the defendant, a holder of a loan note against the plaintiff, came to an agreement by which the property owner and plaintiff would transfer the property to the defendant in exchange for granting the plaintiff the right of first refusal on the sale of the property. However, according to court documents, the defendant, at the time of this agreement, had already sold the note in question, to LAM- Independence, LLC, a developer, without the Court or the plaintiff's knowledge. LAM is a limited liability corporation that lists the same Los Angeles property tax-mailing address as that of Maefield Development Corp., an Indiana based company whose president is Mark A. Siffin. · According to press reports, Siffin apparently lost credibility among West Hollywood, California leaders after being accused of buying the support of neighbors of a large real estate development project. 2 ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL Siffin reportedly also sought to replace a planned 350-room hotel construction on the property with a housing project, without prior consultation with the city. A furor arose after Siffin, who had been named a managing partner in the development project, was also granted the billboard advertising rights, which were quite valuable, on the same property and was subsequently accused of making a payment to a public official in relation to the granting of these rights. Ultimately, Siffin was removed by the City of West Hollywood as the managing partner in this development project. KEY FINDINGS MARK A. SIFFIN Personal Mark Alfred Siffin was born on October 5, 1950 and is the bearer of Social Security Number 305-58-6064, issued in Indiana in January 1, 1968. We were unable to obtain a driver's license number, although records indicate that he may have been issued one in Bloomington or Carmel, Indiana. Currently, Mark Siffin resides at 527 E. Dilido Drive, Miami Beach, Florida 33139. He has been associated with this address since January 2003. The telephone number associated with this address is (305) 604-8447. Mr. Siffin is also associated with the following addresses: · 1526 Blue Jay Way, Los Angeles, California 90069 (March 1998- February 2003) · 14975 Mia Drive, Carmel, Indiana 46033 (July 1999-September 1999) · 328 Walnut Street, Ste. 2, Bloomington, Indiana 47401 (November 1998- October 2000) · 4420 Maefield Street, Bloomington, Indiana 47404 (July 1994- January 1999) · 9100 Wilshire Boulevard, Beverly Hills, California 90212 (April 1986- December 1990) Professional Licenses Research did not disclose any professional licenses registered to Mark Siffin. 3 ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL Business Affiliations A number of corporate affiliations were identified for Mark Siffin through a nation-wide review of Secretary of State records. A great number of these corporate affiliations have been dissolved, although the following companies are still active: Maefield Development Corporation- An active Indiana corporation registered under Charter number 1991090357. Mark Siffin is listed as the Secretary for this entity; the corporate address for Maefield Development Corporation, while originally located at 4420 Maefield Street, Bloomington, Indiana 47404, has been moved to its present address at 328 S. Walnut Street, Bloomington, Indiana 47401. Maefield Development LLC- An active Indiana corporation registered under Charter number 1998021446. Mark Siffin is listed as the registered agent; the corporate address for Maefield Development LLC is 328 S. Walnut Street, Bloomington, Indiana 47401. Nobel West, LLC- An active Indiana corporation registered under Charter number 2003072-800391. Mark Siffin is listed as a registered officer; the corporate address for Nobel West ILC is 328 S. Walnut Street, Bloomington, Indiana 47401. Maeburg, LLC- An active Indiana corporation registered under Charter number 2003021301029. The registered agent is Mark Siffin; the corporate address for Maeburg, LLC is 328 S. Walnut Street, Bloomington, Indiana 47401. Mae-Independence, LLC- An active Indiana corporation registered under Charter number 2002062000319. Mark Siffin is listed as a registered officer; the corporate address for Mae- Independence LLC is 328 S. Walnut Street, Bloomington, Indiana 47401. Mae-Ocean Blvd, LLC- An active Indiana corporation registered under Charter number 2002062000317. The registered agent is Mark Siffin; the corporate address for Mae- Ocean Blvd, LLC is 328 S. Walnut Street, Bloomington, Indiana 47401. Maedeavor, LLC- An active Indiana corporation registered under Charter number 2002062000318. The registered agent is Mark Siffin; the corporate address for Maedeavor, LLC is 328 S. Walnut Street, Bloomington, Indiana 47401. Maeventure, LLC- An active Indiana corporation registered under Charter number 2002123100020. The registered agent is Mark Siffin; the corporate address for Maeventure, LLC is 328 S. Walnut Street, Bloomington, Indiana 47401. Mae Crest, LLC- An active Indiana corporation registered under Charter number 1999121400072. The registered agent is Mark Siffin; the corporate address for MaeCrest, LLC is 328 S. Walnut Street, Bloomington, Indiana 47401. 4 ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL Fox Chase Homeowners Association, Inc. - An active Indiana corporation registered under Charter number 1997051237. Mark Siffin is listed as a registered officer; the corporate address for Fox Chase Homeowners Association, Inc. is 3909 Fox Chase Run, Bloomington, Indiana 47401. Silver Thome Homeowners Association, Inc. - An active Indiana corporation registered under Charter number 1995120932. The president is Mark Siffin and the corporate address, while originally located at 6434 N. College A venue, Suite C, Indianapolis, Indiana 46220, has been moved to its present address at 714 E. 65th Street, Indianapolis, Indiana 46220. Golf Corporation - An active Indiana corporation registered under Charter number 1994110922. The president is Mark Siffin; the corporate address for Golf Corporation is 328 S. Walnut Street, Bloomington, Indiana 47401. Hazel Dell, LLC- An active Indiana corporation registered under Charter number 1994110922. The president is Mark Siffin; the corporate address for Hazel Dell LLC is 328 S. Walnut Street, Bloomington, Indiana 47401. Woodgate Subdivision Community Association, Inc. - An active Indiana corporation registered under Charter number 1993031465. The president is Mark Siffin; the corporate address for Woodgate Subdivision Community Association, Inc. is 328 S. Walnut Street, Bloomington, Indiana 47401. PUBLIC RECORDS Kroll conducted public record research in the appropriate federal and local jurisdictions in Ohio, New Jersey, lllinois, California, Nevada, Indiana, Arizona, and Florida. In each jurisdiction, civil and criminal litigation, bankruptcy filings, liens, judgments, property indices, media and business certificates were reviewed for records involving Mark Siffin. The summary of this research is as follows: OHIO u.s. District Court for the Northern District of Ohio A review of criminal litigation indices was completed with negative results. A review of civil litigation indices was completed with the following results: 5 ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL Court of Common Pleas - Cuyahoga County, Ohio A review of media sources revealed the existence of a case in Ohio regarding a $50 million lawsuit brought by a limited liability company run by realty developer Lewis Wallner II against the lender/defendant which had foreclosed on his 6200 Oak Tree office building in Independence, Ohio. (Please See Exhibit 1 - Copy of Case Documents) The Defendant and lender, Fremont Investment & Loan of Anaheim, California, allegedly hid its plans to transfer the note on the property to LAM- Independence, LLC, a developer, from the Court and the plaintiff, 6200 Oak Tree, LLC. LAM- Independence, liC, a limited liability corporation, lists the same Los Angeles property tax-mailing address as that of Maefield Development Corp., an Indiana based company whose president is Mark A. Siffin. 6200 Oak Tree Blvd. LLC vs. Fremont Investment & Loan, et aI., Case No.03512877, Filed: October 20, 2003 A review of public records revealed that this case, number 03512877, was filed on October 20, 2003 and remains open. According to the facts in the case, Oak Tree Blvd., LLC was the owner of an approximately 225,000 square foot commercial office building located at 6200 Oak Tree Boulevard, Independence, Ohio. In 2000, Oak Tree acquired the property using a loan provided by Heller Financial Inc. in the amount of approximately $15,000,000. The loan was comprised of two promissory notes, Notes "A" and "B". Note "A" was prepared in the amount of $9,834,500 and Note "B" in the amount of $5,295,000. Note "B" is not relevant to this lawsuit since a separate company, not related to Fremont became the assignee for Note B. Note "A" was acquired by Fremont on or about March 28, 2002. Subsequently, Fremont instituted a foreclosure action against the plaintiff, 6200 Oak Tree Blvd., LLC based upon the plaintiff's breach of an obligation to repay the loan amount associated with Note "A". Fremont represented that it or a bank would remain the controlling entity of the property, intentionally leading 2600 Oak Tree Blvd., LLC to believe that the right of first refusal embedded in the Deed in Lieu Agreement was a useful and realistic possibility from which Oak Tree could regain its property. However, the complaint alleged that Fremont had breached the Settlement Letter and Deed in Lieu Agreement because it had sold the property without permitting 2600 Oak Tree to exercise its right of first refusal. According to the complaint, after agreeing to transfer the property to Fremont in exchange for the right of first refusal, the plaintiff discovered that Fremont had failed to disclose to both the plaintiff and the Court that it had already conveyed the property known as 6200 Oak Tree Blvd. to LAM, a developer. 6 ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL The plaintiff therefore alleged that Fremont had defrauded Oak Tree, thereby rendering the right of first refusal provision in the Deed in Lieu Agreement illusory and worthless. This is an ongoing matter. NEW JERSEY U.S District Court for the District of New Jersey - Newark Division A review of civil litigation indices was completed with negative results. A review of criminal litigation indices was completed with the following results: Superior Court of New Jersey- Bergen County The State of New Jersev vs. Mark Alfred Siffin The following arrest record was found for Mark A. Siffin, dated December 12, 1973. According to the indictment, on or about August 20, 1973, Mark A. Siffin unlawfully possessed heroin with the intent to distribute it. Additional information regarding this case was not available. (Please See Exhibit 2 - Indictment) ILLINOIS U.S. District Court for the Northern District of Illinois A review of civil litigation indices was completed with negative results. A review of criminal litigation indices was completed with the following results: U.S. District Court for the Central District of IIlinois- Danville Division Central District of Illinois- Danville Division United States of America vs. Robert E. Miller, Mark A. Siffin, et al. The following arrest record was found for Mark A. Siffin, dated August 24, 1982. According to the indictment, the defendants in this case willfully and knowingly conspired to distribute more than 1,000 pounds of marijuana. 7 ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL It was further part of said conspiracy that at least as of 1980, defendants, Robert E. Miller, Mark A. Siffin and N. Jerry Paxton traveled and arranged for certain of the other defendants to travel from the Central District of Illinois and Indiana to Florida and elsewhere for the purpose of delivering hundreds of pounds of marijuana on each occasion and transporting it to Illinois and Indiana for distribution. Additional information regarding this case was not available. (Please See Exhibit 3- Indictment) CALIFORNIA u.s. District Court for the Northern District of California- San Francisco Division A review of criminal litigation indices was completed with the following results: A review of civil litigation indices was completed with negative results. Superior Court of California- County of Sonoma State of California vs. Mark Alfred Siffln, CaseNo.MCR-49140, Filed: December 2,1985 According to the court docket that we obtained for this arrest, case number MCR-49140, dated December 2, 1985, a complaint was filed against Mark Siffin by the California Highway Patrol for a possession charge and a motor vehicle violation. The criminal hearing for this felony charge for possession was scheduled for March 13, 1986. It was not possible to obtain further information or documentation regarding this arrest, which according to the docket is technically "pending", because the case file has been destroyed as part of the normal court procedure for archived matters (Please See Exhibit 4- Docket Sheet). u.S. District Court for the Central District of California A review of criminal litigation indices was completed with negative results. A review of civil litigation indices was completed with the following results: Los Angeles Superior Court Williams Wayne S., vs. Maetield DeveloTJment, et ai., Case No. BC269103, Filed: February 28, 2002 8 ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL This case was filed on February 28, 2002 as civil case number BC269103 (Please See Exhibit 5- Docket Sheet). The Plaintiff is Wayne S. Williams and the defendants are listed as: 1. Maefield Development 2. PCL Construction Services Inc. 3. Siffin, Mark 4. Sunset Millennium Association, LLC 5. Apollo Real Estate Advisors IV No further information regarding this matter is currently available. Media Media inquiries in California revealed the existence of a 2002 lawsuit against the City of West Hollywood's city clerk and City Council over the text of an anti-billboard initiative petition that the Plaintiff claimed was flawed and misleading. The initiative petition had challenged the approval of the controversial Sunset Millennium project billboards. The approval of the billboards by the City Council was challenged by a number of critics who contended that Mark Siffin, a partner in the Sunset Millennium Project and the individual who had received the rights to the use of billboard advertising from the City Council, bought a "yes" vote through a $21,000 donation to a charity closely affiliated with Mayor Pro Tern Sal Guarriello. Another article, dated April 2, 2002, reported that Apollo Real Estate Advisors had replaced Mark Siffin as managing partner of the $300 million Sunset Millennium project in West Hollywood, California, after Siffin angered community leaders and became involved in a series of "costly and embarrassing setbacks". Siffin had apparently lost credibility among West Hollywood leaders after project opponents accused the developer of "buying the support of neighbors with hundreds of thousands of dollars". Additionally, Siffin reportedly sought to replace a planned 350-room hotel in the development with a housing project without prior consultation with the city. NEVADA Media Media and database inquiries revealed the existence of a Supreme Court criminal case in Nevada involving murder and drug trafficking. 9 ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL Mark Siffin (Narcotics and Dangerous Drugs Information System or NADDIS number 907506), although not directly involved in the crime nor considered a suspect, was cited a number of times in court documents, specifically Drug Enforcement Agency ("DEA") reports, as a person that was possibly acquainted with the murder victim and defendant, as well as being involved in drug trafficking. John Francis Mazzan vs. Elv State Prison, E.K. McDaniel, ReslJondent, Case No. C79126, Filed: December 1979 A 1979 murder case, under case number C79-126, against John Francis Mazzan, resulted in Mazzan's conviction for first degree murder. (Please See Exhibit 6 - Copy of Case Summary) Since it was believed that the presumed death of the victims, Richard Minor and his estranged girlfriend April Barber, were directly connected to narcotics activities, Mark Siffin's name was mentioned not only for possibly being an acquaintance of Richard Minor and John Francis Mazzan, but also because at the time, Siffin was the subject of DEA investigations involving drug trafficking and smuggling activities in Indiana as well as Florida. DEA reports referred to Siffin as a "major cocaine trafficker." (Please See Exhibit 7 - Report of Investigation of DEA made public in criminal case C79- 126) According to this report, dated November 14, 1978, based on a request for background information and banking records of Siffin 's Mae Company, it stated that Mark Siffin was "suspected of being a major cocaine trafficker, presently residing in Bloomington, IN. Siffin is a partner in the Mae Company, through which he appears to be funneling large amounts of money, in order to reinvest the funds in legitimate business areas. " Furthermore, reference made in another DEA report dated October 26, 1978, based on intelligence conducted on Fred Gordon, et al., revealed information that Mark Siffin had made numerous calls to Fred Gordon in Melrose, Florida. According to records, Gordon was alleged to be connected with the David Carli Organization that operated in Gainsville, Florida and considered a multi-ton marijuana trafficking group. (Please See Exhibit 8 - Report of Investigation of DEA made public in criminal case C79-126). In addition to Siffin' s drug related activities on or about this time, a supplemental information report prepared by the Reno Police Department on February 5, 1979, indicated that Harry Douglas Warmbier and a friend and associate, Mark Alfred Siffin, "were involved in narcotics trafficking all the way from Ecuador through the Florida area into Bloomington and apparently all the way across the United States into Marin County, California, South Lake Tahoe, and El Dorado County, California, the San Francisco area and Honolulu and Kona Hawaii." (Please See Exhibit 9 - Reno Police Department Report) 10 ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL In 2000, Mazzan was freed on $100,000 bail. He was arrested again in September of the same year for the murder of Minor's girlfriend, April Barber (for which he was not originally tried in 1979), under case number CR-012135. The charges against Mazzan involving the death of April Barber surfaced, after tennis shoes found at Mazzan's home were retested and found to contain minute amounts of Barber's DNA. Prosecutors attempted to contact Mark Siffin, who, at the time, would not volunteer to be interviewed in relation to the new murder trial, although according to Judge Peter Breen, the judge in the case, Siffin would appear at the trial as a witness, but could not be subjected to questioning by Mazzan's lawyers beforehand. According to public records, a trial was initiated in order to allow new information in the case that was not on the record in 1979 to be used in Court regarding Doug Warmbier and Mark A. Siffin. In the new case, Mazzan negotiated a deal with the Court. He plead guilty for the murder of Richard Minor with the stipulation that the charges for April Barber's murder be dropped. Mazzan's sentence in this trial was set at life in prison with the possibility of parole in a period of ten years. That sentence may be reduced as a result of previous time served by Mazzan. INDIANA u.s. District Court for the Southern District of Indiana A review of criminal litigation indices was completed with negative results. A review of civil litigation indices was completed with the following results: Monroe County Recorder's Office Liens and Judgments A review of the lien and judgment indices was completed with the following results: State Tax Warrant Release Debtor: Mark A. Siffin 4420 Maefield Street, Bloomington, Indiana 47404 Debtor amount: $416.00 (Please See Exhibit 10 - Lien Filing Record Docket) 11 ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL Uniform Commercial Code- Financial Statements A comprehensive review of financing statements was completed with the following results: The following order DCC was filed on 10/08/2002 in the State of Delaware for an Indiana-based company for file number 22536492 with the Secretary of State of Delaware DCC Division at Federal and York Streets, Dover, Delaware 19901 Debtor: Ocean Blvd, LLC c/o Maefield Development, Attention: Mark A. Siffin 328 South Walnut Street, Suite 2, Bloomington, Indiana 47401. Secured Party: Fremont Investment & Loan 175 N. Riverview Drive, Anaheim, California 92808 Collateral: Right! Title and Interest including the proceeds and products. (Please See Exhibit 11 - UCC Report Docket) ARIZONA U.S. District Court for the District of Arizona A review of civil litigation indices was completed with negative results. A review of criminal litigation indices was completed with negative results. Coconino County Misdemeanor Records Name: Mark A. Siffin Carmel, Indiana 46033 Date: August 26, 1999 Case # J0302-TR-99001211 Lap and Shoulder Belts Required- Traffic Jurisdiction- Williams Justice Court Plead Guilty, Local Charge, Paid in Full (Please See Exhibit12 - Docket Sheet for Misdemeanor) 12 ATTORNEY WORK PRODUCT PRIvILEGED AND CONFIDENTIAL FLORIDA U.S. District Court for the Southern District of Florida A review of civil1itigation indices was completed with negative results. A review of criminal litigation indices was completed with negative results. INTERNA TIONAL - TANGIERS, MOROCCO Arrest of Mark Siffin According to reports prepared by DEA agents, United States customs records indicated that Mark Alfred Siffin was arrested in Tangiers, Morocco in 1971 or 1972 for possession of approximately one kilogram of hashish. No other documents are available {Please See Exhibit 13 - Report of Investigation of DEA made public in criminal case C79-12).2 2 According to a 1997 interview conducted by a public defender with Douglas Warmbier, an individual cited by the DEA as being involved with Mark Siffin and narcotics trafficking, Siffin's father, allegedly a high-ranking Central Intelligence Official at the time of Siffin's arrest, arranged to have the arrest dropped. It should be noted however, that Warmbier's statement regarding this matter was not corroborated by any actual evidence. 13 rn >< ::r c: ;::;: - ~, ;'" )~OMMON PLEAS COURT CUYAHOGA COUNTY, OHIO DESIGNATION FORM._TO BE USED BY COUNSEL TO INDICATE THE CA tE.~G@JO' OF THE CAUSE 6200 Oak Tree Blvd., LLC ZlIUJ OCT 20 P I: 31 No. - vs - , f Judge: JOHN D SUTULA Fremont Investment & Loan and CLE) LAM- Independence, LLC CU '(A 111111111111111111111111111111111111111111111111111111111111 CV 03 512877 Has this case been previously tiled and dismissed? Check or _. _.._ J~~::1";' .. ~' I 1 f i t ~ ~ Pending or Closed Related Case(s) list case number and judge. Fremont Investment & Loan v. 6200 Oak Tree Blvd., LLC; Case No. 466719; Kenneth Callahan, J. TORT 1310 D 1330 D 1311 D 1312 D 1313 D 1314 D 1350 D Civil Categories: Place (X) in ONE CA TEGORY ONL Y. CONTRACT MOTOR VEHICLE ACCIDENT PRODUCT LIABILITY MEDICAL MALPRACTICE LEGAL MALPRACTICE OTHER MALPRACTICE CONSUMER RELIEF (O.R.C. 1345) MISCELLANEOUS 1382 D 1384 ~ 1390 ~ 1391 D BUSINESS REAL ESTATE COGNOVIT OTHER ADMINISTRATIVE APPEALS 1540 D 1550 D 1551 D EMPLOYMENT SERVICES WORKMEN'S COMPENSATION OTHER REAL PROPERTY 1460 D 1470 D 1480 D 1481 D AMOUNT OF CONTROVERSY FORECLOSURE QUIET TITLE PARTITION OTHER D 500 - 20,000 D 20,000 -100,000 D 100,000 - 500,000 ~ OVER 500,000 D NON STATE PARTIES HAVE PREVIOUSLY ATTEMPTED ONE OF THE FOLLOWING DISPUTE RESOLUTION METHODS BEFORE FILING D ARBITRATION D EARLY NEUTRAL EVALUATION D MEDIATION D NONE , MISCELLANEOUS 1500 D 1501 D REPLEVIN/GARNISHMENT OTHER I certify that to the best of my knowledge the within case is not related to any now pending or previously filed, except as noted above. COLLINS & SCANLON, LLP Harvey Labovitz Atto~,r,~ n,'fY of Record (Print or Type), !h/ /6<[ S7gRalu2) Firm Name (Print or Type) 3300 T-':l'minal Tower, 50 Public Square, Cleveland, Ohio 44113 Address 216-696-0022 .. '" -, Case No. 5128 7 7 C 01 C 20513427 DATE DESTINATION TELEPHONE PRINT NAME AND SIGN ov-( _f. > ~ ~~~;:i#~~~~'rro~"B\~~ 'ir,j.' f(... c: - fOo", . Court File Taken From GERALD E. FUERST. Clerk of the Court of Common Pleas .~106 F: \ t. E:sQ IN THE COURT OF COMM:ON PLEI . ) A \\: Sq IU01 NO~ 2\.\ :.?ERALO E. FI~~SE NO.: 505826 0\ ERK OF CcillRTS (,~UYpJ\OG~ CQUfifJl!)GE JOHN D. SUTULA ) ) ) STIPULATION FOR LEA VB TO ) PLEAD AND JOURNAL ENTRY ) ) ( STATEOFomo COUNTY OF CUYAHOGA BETSEY SAFF AR, et aI. PLAINTIFFS -vs- KIMBERL Y N. CHRISTIAN, et al. DEFENDANTS ( We, the attorneys for the respective parties, do hereby stipulate that Defendants, '. - $ 0\ VI \JJ \JJ VI iii - iii !!II - . - Iii iii iiii Kimberly N. Christian and Paulette Hudson, shall have until December 21,2003 to move or plead to answer Plaintiffs Complaint and to any written discovery filed contemporaneously therewith and that the Court may enter an order accordingly, notice by the Clerk being hereby waived. The Defendant has previously been granted zero leaves to plead for a total of zero days. IT IS SO ORDERED ~ 11-, ~ ALAN H KRAUSE (0025100) (per Telephone Consent) Attorney for Plaintiffs ~ 7 ~ --- Richard S. Matas (0064946) Attorney for Defendants NOTE: The Court may terminate or shorten any leave to plead when in its discretion, excessive time has been requested. (') < 8 VI o VI oc N 0\ , ( . ! r-o ~ t.- .... 1..........., - 0\ ~ VI ~ N o ~ - - - - - ..... - iii - . - - - .. - iii (J -< ffi VI - N OCI ....:j ....:j iliD] NOV 24 A \I: 03 ,.,., CF'I!'bi'I#JCOURT OF COMMON PLEAS ':,(j\HC:c;:\ cotflUYAHOGA COUNTY, OHIO 6200 OAK TREE BLVD., LLC, CASE NO. CV 03 512877 Plaintiff, vs. JUDGE JOHN D. SUTULA FREMONT INVESTMENT & LOAN, et aI., STIPULATION FOR LEAVE TO ANSWER, PLEAD, OR OTHERWISE MOVE Defendants. We, the attorneys for plaintiff 6200 Oak Tree Blvd., LLC and defendant LAM- Independence, LLC, respectively, do hereby stipulate that LAM-Independence, LLC shall have a thirty (30) day leave, through and including December 24,2003, in which to answer, plead, or otherwise move in response to the Complaint. No prior extensions have previously b e -, h~.M.~~ ~. Sl-lo. ~la",,-l ~~~ Thomas J. Scanlon (0017308) (per telephone consent) Harvey Labovitz (0021851) Collins & Scanlon LLP 3300 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2294 Telephone: (216) 696-0022 Facsimile: (216) 696-1166 Attorneys for Plaintiff 6200 Oak Tree Blvd., LLC granted toe L-Independence. , ;j / J' / - ~) ~(JJl&# , , v' ------ .'-- Tliomas R. Lu hes (0025790) Rebecca C. L 069288) BAKER & HOSTETLER LLP 3200 National City Center 1900 East Ninth Street Cleveland,OH 44114-3485 Telephone: (216) 621-0200 Facsimile: (216) 696-0740 Attorneys for Defendant LAM-Independence, LLC -v>>-. DMMONS IN A CIVIL ACTION COURT OF COMMON PLEAS, CUYAHOGA COUNTY JUSTICE CENTER CLEVELAND, OHIO 44113 \ '-', CASE NO. CV03512877 D1 CM SUMMONS NO. 4261726 Rule 4 (B) Ohio Rules of Civil Procedure 6200 OAK TREE BLVD., LLC VB FREMONT INVESTMENTS & LOAN ETAL PLAINTIPP SUMMONS DEPENDANT FREMONT INVESTMENT & LOAN % CT CORPORATION SYSTEM -STATUTORY AGENT 1300 EAST NINTH STREET CLEVELAND OH 44114-0000 You have been named defendant in a complaint (copy attached hereto) filed in Cuyahoga County Court of Common Pleas, Cuyahoga County Justice Center, Cleveland, Ohio 44113, by the plaintiff named herein. Said answer is required to be served on: You are hereby summoned and required to answer the complaint within 28 days after service of this summons upon you, exclusive of the day of service. . Said answer is required to be served on Plaintiff's Attorney (Address denoted by arrow at left.) PlantiWs Attorney THOMAS J SCANLON 3300 TERMINAL TOWER Your answer must also be filed with the court within 3 days after service of said answer on plaintiffs attorney. 50 PUBLIC SQUARE CLEVELAND, OH 44113-0000 If you fail to do so, judgment by default will be rendered against you for the relief demanded in the complaint. I Oct DATE 21, 2003 By Case has been assigned to Judge: JOHN D SUTULA Do not contact judge. Judge's name is given for attorney's reference only. COMPLAINT FILED 10/20/2003 111111111111111111111111111111111111111111111 . FREMONT INVESTMENT & LOAN 1300 EAST NINTH STREET 1300 EAST NINTH STREET CLEVELAND OH 44114-0000 :MSN130 UMMONS IN A CIVIL ACTION COURT OF COMMON PLEAS, CUYAHOGA COUNTY JUSTICE CENTER CLEVELAND, OHIO 44113 CASE NO. CV03512877 D2 CM SUMMONS NO. 4261727 Rule 4 (8) Ohio Rules of Civil Procedure 6200 OAK TREE BLVD., LLC VS FREMONT INVESTMENTS & LOAN ETAL PLAINTIFF SUMMONS DEFENDANT LAM-INDEPENDENCE LLC % CSC LAWYERS INCORPORATING SERVICE -STATUTORY AGENT 50 WEST BROAD STREET COLUMBUS OH 43215-0000 You have been named defendant in a complaint (copy attached hereto) filed in Cuyahoga County Court of Common Pleas, Cuyahoga County Justice Center, Cleveland, Ohio 44113, by the plaintiff named herein. Said answer is required to be served on: You are hereby summoned and required to answer the complaint within 28 days after service of this summons upon you, exclusive of the day of service. . Said answer is required to be served on Plaintiff's Attorney (Address denoted by arrow at left.) Plantiers Attorney THOMAS J SCANLON 3300 TERMINAL TOWER Your answer must also be filed with the court within 3 days after service of said answer on plaintifrs attorney. 50 PUBLIC SQUARE CLEVELAND, OH 44113-0000 If you fail to do so, judgment by default will be rendered against you for the relief demanded in the complaint. I Oct DATE 21, 2003 By Case has been assigned to Judge: JOHN D SUTULA Do not contact judge. Judge's name is given for attorney's reference only. COMPLAINT FILED 10/20/2003 t 111111111111111111111111111111111111111111111 LAM-INDEPENDENCE LLC 50 WEST BROAD STREET 50 WEST BROAD STREET COLUMBUS OH 43215-0000 Judge: JOHN D SUTULA Judge: JOHN D SUTULA 111111111111111111111111111111111111111111111111111111111111 CV 03512877 1111111111111111111111111111111111111111111111111111111 CV 03512877 Judge: JOHN D SUTULA Judge: JOHN D SUTULA I 1111111 III 111111 11111 1111111111 11111 11111 11m 111111111111 CV 03512877 1111111111111111111111111111111111111111111111111111111. CV 03512877 Judge: JOHN D SUTULA Judge: JOHN D SUTULA C C 111111111111111111111111111111111111111111111111111111111111 CV 03512877 11111111111111111111111111111111111111111111111111111111 CV 03512877 V V Judge: JOHN D SUTULA Judge: JOHN D SUTULA 111111111111111111111111111111111111111111111111111111111111 CV 03512877 111111111111111111111111111111111111111111111111111111111 CV 03512877 0 0 Judge: JOHN D SUTULA 3 3 . 111111111111111111111111111111111111111111111111111111111111 CV 03512877 5 5 1 1 2 2 8 8 7 7 7 7 ~ " - w (!) - - w ~ - W I c: I-' t"' - w ;:l>I ;;;;;;;; ro - "'" () - <: <::) w = (J1 -.;;;; I-' - N ;;;;;;;; ro -.I - -.I - t:I - N == .,; ,... IN THE COUJft ~F\OMMON PLEAS 9Ml AHOG;{-c6UNTY, OHIO VCT 20 p /: ] I ;;\ J r) ,_ 6200 OAK TREE BLVD., LLC,rr".;-'2-' FUtnST Case' 24650 Center Ridge Road, Shhe:l.OO,;;; f9~~t.s Westlake OH 44145, '-'vi)/ Y ) ) v. /~ FREMONT INVESTMENT & LOA~ c/o Statutory Agent ) CT Corporation System ) 1300 East Ninth Street ) Cleveland OH 44114, ) ) ) ) ) ) ) ) ) ) ) ~ r ) ',/ ~, ,/f1 {'j // Ai c Plaintiff, and LAM-INDEPENDENCE, LLC c/o Statutory Agent CSC-Lawyers Incorporating Service 50 West Broad Street Columbus OH 43215, Defendants. / CV03512877 /1111 ~Dllml III 111111111/1111111 16747780 CV 03 512877 Complaint I glllllllll fillllllU 1III/IIm 1111/1/111/11/111 16735048 Judge: COMPLAINT FOR MONEY AND FOR EQUITABLE RELIEF (Trial by Jury Demanded) STATEMENT OF FACTS S /00 .(90 D::r:,:'Si i ED .s-- \( C)- Q-rT ? n ?~03 ''U'' I... v ~......; s::c:;..;~:: cc:~-: GER,-\LD E. ;'_=-- ~-. : .::~. :~ ~ ::..:":: PER For its complaint against Fremont Investment & Loan ("Fremont") and LAM- . Independence, LLC ("LAM"), Plaintiff 6200 Oak Tree Blvd., LLC ("Oak Tree") states the following: 1. Oak Tree is a limited liability company organized and existing pursuant to the laws of the State of Ohio. ,1/ r . f: 2. Fremont is a corporation organized and existing pursuant to the laws of the 3. LAM is a limited liability company organized and existing pursuant to the State of California, and which has made, and continues to make, loans in Cuyahoga County, Ohio. laws of the State of Delaware and doing business in Cuyahoga County, Ohio. 4. At all pertinent times, Oak Tree was the owner of an approximately 225,000 square foot commercial office building located at 6200 Oak Tree Boulevard, Independence, Ohio (the "Property"), the legal description of which is as follows: Situated in the City of Independence, County of Cuyahoga, and State of Ohio and known as being Parcel No.5 in the plat of Lot-Split and Sanitary Sewer Easement for B.S.G. Properties, Inc. and Centerior Properties Company of part of Original Independence Township Lot No. 23, Tract 2, West ofthe Cuyahoga River, as shown by the recorded Plat in Volume 286 of Maps, Page 45 of Cuyahoga County Records, be the same more or less, and being more particularly bounded and described as follows: Beginning at an iron pin at the southwesterly comer of said Original Lot No. 23; Thence North 000 04' 37" East along the westerly line of said Original Lot No. 23, being also the corporation line common to the City of Independence and the City of Seven Hills, a distance of757.29 feet to the southwesterly comer of Land Conveyed to Duke Realty, LTD. Volume 97-08794, Page 2 thru 4 of Cuyahoga County Records at which point a 5/8" iron pin set with Cap (Ciuni & Lynn #7394). .. Thence North 89047' 14" East along the southerly line of said Land, a distance of 735.66 feet to the westerly line of Oak Tree Boulevard, 100 feet wide, dedicated on the plat recorded in Volume 226 of Maps, pp 99-100 of Cuyahoga County Records, and extended. Thence South 00012' 46" East along said westerly line of Oak Tree Boulevard, a distance of 756.46 feet to the southerly line of Original Lot No. 23, at which point 5/8" iron pin was set with cap (Ciuni & Lynn #7394). Thence South 89043' 23" West along said southerly lot line, a distance of 739.49 feet to the Principal Place of Beginning and containing 12.8156 acres ofland according to a survey made by Ciuni & Lynn Associates dated June 16,2000. Permanent Parcel No.: 562-28-015 2 " ,,,~ t I ~ J' 5. In 2000, Oak Tree acquired the Property using a loan provided by Heller Financial, Inc. ("Heller") in the aggregate amount of Fifteen Million One Hundred Thirty Thousand Dollars ($15,130,000.00) (the "Loan"). The Loan was evidenced by two promissory notes ("Note A" in the amount of $9,834,500.00 and "Note B" in the amount of $5,295,000), a mortgage securing Note A ("Mortgage"); and other documents prepared by Heller and executed by Oak Tree (collectively, the "Loan Documents"). 6. In 2001, Fremont acquired from Heller by assignment Note A and the Mortgage and, pursuant thereto, became substituted as the lender under the relevant Loan Documents (hereinafter called the "Fremont Loan Documents"). (General Electric Capital Corporation became the assignee of Note B, but Note B is not an issue in this matter.) In February, 2001, Fremont notified Oak Tree that it was the owner and holder of Note A and the other Fremont Loan Documents. Fremont never notified Oak Tree that Fremont was no longer the owner and holder of Note A and the Fremont Loan Documents. ~ 7. On or about March 28,2002, Fremont instituted a foreclosure action (the "Foreclosure Action") against Plaintiff based upon a ~laim of breach of Note A and the other Fremont Loan Documents. The Foreclosure Action was styled Fremont Investment & Loan v. 6200 Oak Tree Blvd., Inc., et ai., Cuyahoga County Common Pleas Case No. CV 02 466719. 8. The pleadings filed by Fremont in the Foreclosure Action stated that Fremont was the owner and holder of Note A, the Mortgage, and other Fremont Loan Documents executed by Oak Tree, and that the balance of Note A was payable to 3 ~\ , }! (~ Fremont. In addition, at various Court hearings during the pendency ofthe Foreclosure Action, Fremont represented to the Court that Fremont was the owner and holder of Note A, the Mortgage, and other Fremont Loan Documents. 9. At the inception of the Foreclosure Action, Fremont demanded the appointment of a receiver for the Property, and the Court appointed as receiver the individual requested by Fremont. 10. During the pendency of the Foreclosure Action, Fremont's receiver proposed a large new tenant for the Property, offering substantial monetary inducements to such prospective tenant, and Fremont agreed to advance funds for tenant improvements should the prospective tenant be approved and signed. 11. During the pendency of the Foreclosure Action, the parties resolved their differences by agreeing to an arrangement whereby Oak Tree would promptly transfer the ownership of the Property to Fremont by a deed in lieu of foreclosure months and probably years before such transfer would have occurred at the normal pace of foreclosures. One of the conditions to Oak Tree's agreeing to the Deed in Lieu Agreement was the right of Oak Tree to possess a "right of first refusal," exercisable through August 28,2004, to repurchase the Property in the event a third party made an offer to Fremont to purchase the Property. 12. As part ofthe global settlement referred to in Paragraph 11, Oak Tree agreed to consent to the receiver's entering into a lease with the prospective tenant, thereby allowing Fremont to not only obtain control of the Property much more quickly than if the Foreclosure Action had proceeded at its normal pace, but also obtaining a very favorable lease substantially enhancing the value of the Property for Fremont's benefit. . 4 ~!' I ..1 , Another aspect of the Agreement was the payment by Oak. Tree of several hundred thousand dollars to remove mechanics liens encumbering the Property. 13. The global agreement was entered into before the Court and reduced to a letter executed by the parties. This letter (the "Settlement Letter," attached hereto as Exhibit A) was thereafter reduced to a formal agreement (the "Deed in Lieu Agreement," attached hereto as Exhibit B, except for all of its exhibits, which are voluminous), prepared by counsel for Fremont and signed by Plaintiff. The principal reason for Oak. Tree's entering into the Deed in Lieu Agreement was its ability to repurchase the Property in the event of an offer to Fremont, knowing that Fremont, like other lending institutions, would have an incentive to sell the Property to recoup the money it had lent to Oak. Tree, coupled with the knowledge that lenders do not ordinarily retain real property because they are not in the business of owning and operating real property. 14. It was agreed by the parties, both in chambers and pursuant to the Settlement Letter and the Deed in Lieu Agreement, that the conveyance from Plaintiff would be to a designee of Fremont, and, in fact, based upon statements of Fremont and/or its counsel, it was Oak. Tree's belief that the transferee would be a wholly-owned subsidiary of Fremont, it being common in the industry for a lending institution to temporarily hold real property in the name of a subsidiary to avoid the possible liabilities that would arise during such ownership. 15. After the execution of the Deed in Lieu Agreement and the conveyance of the Property by Plaintiff to Fremont's designee, Oak Tree discovered that, in fact, Fremont had, prior to the institution ofthe Foreclosure Action, sold the Fremont Loan Documents to the entity that became the designee. That entity is LAM. 5 t ~ d , 1 4{ 16. The sale of the Fremont Loan Documents had theretofore not been known by Oak Tree; it was not made a matter of public record; and it was not disclosed to the Court during the pendency ofthe Foreclosure Action. On the contrary, Fremont represented to the Court as well as to Oak Tree that it was the owner and holder of Note A and the Fremont Loan Documents. 17. LAM is, in fact, a real estate developer that is in the business of owning, operating, leasing, and otherwise dealing in office buildings, rather than an entity wholly- owned and! or controlled by Fremont that is in the business of holding the bare title to real property until it can be sold or otherwise dealt with in the open market. 18. In effect, the conveyance of the Property to LAM has rendered the right of first refusal in the Deed in Lieu Agreement useless because LAM has no incentive to sell the Property, whereas Fremont, as a lending institution, has every incentive to sell the Property so that it can recover the proceeds of its loan. It is in the business of lending money at interest rates sufficient to realize profits, not of owning property. 19. Oak Tree believes, and therefore alleges, that LAM has attempted to obtain financing for the Property, the effect of which would further impair Oak Tree's rights with respect to the Property. COUNT I (Fraud) 20. Plaintiff restates all ofthe allegations set forth in Paragraphs 1 through 19 hereof as if fully set forth herein. 21. Fremont has committed a fraud upon Oak Tree and the Court by causing the conveyance of the Property to a third-party entity over whom it has no control and which has no incentive to sell or offer to sell the Property. 6 '. ':x . ..:l' 22. Fremont misrepresented to the Court and to Plaintiff, orally and in writing, that it was the owner and holder of Note A and the Fremont Loan Documents and that it was the real party in interest in the F orec1osure Action, whereas it was not the owner and holder of the Loan Documents and was not the real party in interest. 23. Fremont represented that the designee was a controlled entity, intentionally leading Oak Tree to believe that the right of first refusal embedded in the Agreement was a useful, palpable and realistic possibility for which Oak Tree bargained in good faith. Fremont intentionally and fraudulently induced Oak Tree to enter into the Settlement Letter and Deed in Lieu Agreement by making such misrepresentation. 24. Plaintiff would never have entered into the Settlement Letter or Deed in Lieu Agreement; would never have consented to the new lease or to Fremont's advance of funds for tenant improvements for the new lease; and would never have paid approximately Three Hundred Thousand Dollars to satisfy and extinguish the mechanics liens, had it known that Fremont was not the owner and holder of the Fremont Loan Documents; that the designee was not an entity controlled by Fremont; and that Plaintiff had no realistic possibility of exercising its right of first refusal for which it had bargained. IP 25. Plaintiff has been damaged in the amount of at least Twenty-Five Million Dollars ($25,000,000.00) as a direct and proximate result of Fremont's fraud. COUNT II (Breach of Agreement) 26. Oak Tree restates all of the allegations set forth in Paragraphs 1 through 25 hereof as if fully set forth herein. 7 ., '. , . 27. Fremont has breached the Settlement Letter and Deed in Lieu Agreement because it has sold the property for valuable consideration without permitting Oak Tree to exercise its right of first refusal. 28. Oak Tree has fulfilled its obligations under the contracts and, as a result of Fremont's breaches, Oak Tree has been damaged in the amount of at least Twenty-Five Million Dollars ($25,000,000.00). COUNT III (Breach of Agreement) 29. Oak Tree restates all of the allegations set forth in Paragraphs I through 28 hereof as if fully set forth herein. 30. Fremont has breached the Settlement Letter and Deed in Lieu Agreement because it has failed to negotiate and deal in good faith. 31. The duty of good faith is implicit in every contract and Fremont has failed to deal in good faith with Plaintiff or with the Court in the negotiation and execution of such contracts. 32. Oak Tree has fulfilled its obligations under the contracts, and as a result of Fremont's breaches, Plaintiff has been damaged in the amount of at least Twenty-Five " Million Dollars ($25,000,000.00) . COUNT IV (Civil Conspiracy) 33. Oak Tree restates all of the allegations set forth in Paragraphs I through 32 hereof as if fully set forth herein. 34. Defendants engaged in a malicious combination to injure Oak Tree and that combination resulted in actual damages. 8 35. Fremont and LAM engaged in a civil conspiracy, the purpose of which was to defraud Oak Tree and to render the right of first refusal provision in the Deed in Lieu Agreement illusory and worthless. 36. As a direct and proximate result of the civil conspiracy, Oak Tree has been damaged in the amount of at least Twenty-Five Million Dollars ($25,000,000.00). COUNT V (Prima Facie Tort) 37. Oak Tree restates all of the allegations set forth in Paragraphs 1 through 36 hereof as if fully set forth herein. 38. Defendants, jointly and severally, inflicted intentional harm, resulting in damage upon Oak Tree, without excuse or justification, by their respective acts which may otherwise have been lawful. 39. The acts committed by Defendants include all those set forth in the Statement of Facts portion of this Complaint. 40. As a direct and proximate result of Defendants' actions, Oak Tree has been damaged in the amount of at least Twenty-Five Million Dollars ($25,000,000.00). COUNT VI (Constructive Trust) " 41. Oak Tree restates all of the allegations set forth in Paragraphs 1 through 40 hereof as if fully set forth herein. 42. The actions of Defendants have served to defraud Oak Tree out of the right to own and operate the Property. 43. LAM currently is in possession of the Property and obtains all of the financial benefits of the Property. 9 " 44. Oak Tree believes, and therefore alleges, that the price LAM paid for the Property wasthe amount of the balance of Note A that would otherwise have been due to Fremont had Fremont still owned Note A due to Fremont. 45. Oak Tree has no adequate remedy at law. 46. A constructive trust should be imposed upon LAM for the benefit of Oak Tree effective as of the date the Court appointed a receiver in the Foreclosure Action. COUNT VII (Accounting) 47. Oak Tree restates all of the allegations set forth in Paragraphs 1 through 46 hereof as if fully set forth herein. 48. Oak Tree is entitled to an accounting of the revenues received by LAM since the date of conveyance of the Property. WHEREFORE, Plaintiff demands judgment against Fremont as follows. 1. On Counts I, II, III, IV, and V, the amount of at least Twenty-Five Million Dollars ($25,000,000.00). 2. On Count I, punitive damages in the amount of Twenty-Five Million Dollars " ($25,000,000.00). 3. On Count VI, an order that the constructive trust be imposed on the property for the benefit of Oak Tree effective as of the date the Court appointed a receiver for the Property. 4. On Count VII, an accounting of the revenues received by LAM since it acquired the property. 10 .. 5. That the Court issue an order permanently enjoining the Defendants from encumbering the Property and from selling or otherwise conveying or alienating the Property. 6. Interest, costs, attorney fees, and such other relief as the Court may allow. Respectfully submitted, nlon (0017308) tscanlon c lins-scan10n.com Harvey L ovitz (0021851) hlab@collins-scanlon.com COLLINS & SCANLON LLP 3300 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2294 Telephone: 216-696-0022 Facsimile: 216-696-1166 JURY DEMAND Pursuant to Ohio Civil Rule 38(B), Plaintiff demands a trial by jury on all issues so triable. " p:\hl\oak tree\pleadings 6200\complaint 11 .' , . 6200 Oak Tree Blvd, LLC ...1. J4650 c.......... ' - W"'b, OWe 44145 MImh io, 2003 Fnmont~4x... 115 NodhRivemow Drive J\naNijm~ CaHfiw,d. 92808 Atta2ti-= . Scott MIDlin Be: "'&-.1. '-d" LHa ~ v.GeI o.tTne BmL LLC N2OI.....d. Ladiat and Galt!emeil: ' 1tdreuce Js ~ IIIIde 10 tie fincbun ICtioIl JNIIdbtJ ia CIJyabop County, Ohio' Coqrt of o-~()Il pJeai ItyJed ~im.""''''' A Loa v. GOO 0Ik 1NeBlvd.. u.c. etll. mf~ II Cue Nvm1lerCV02-46611' Ctlw "E~ ktioaj. Capildzcd ta:ma 1JIOcI herein lad DOt defined bereIn IhaII have the maniap IIOribed mlllCb tenu in lie Amertded Complaint. . ThiI Jetter ~ Iball 0011<<,," .. PnIaoat and 6200 haw ... to aeaotiatc tile t8ImI ofa deed in lieu ot1brec1anre~ro-iD u.~ 6'OIIlMan:h20, 200310 ad iDMvf....Mmi126, 2003 (1ha 'T~iPolbarlDoe Pedod"), witboat eik pllt)'Wliviq 'Ill)' rlIbta ornmedfea 80UIht or &'fIIiJahJe UDder tho p~ Aotion or otberwiIe at law or at equity. ad othcrwiJe IIIbjoc:t to tho tCIIDI ofam. Letter. In DO way iI Fnmclut WIiriDa lay defiult UDder tbe ... ofdt.e Loan Dooumera.1JOl' 116200 W'Ii'vfDa Iftyrishts. nmedies or defeaJes it hu av.u.&Je to it. In the CMIIt tbe P8die11ft 1IDIbIe to adIfY the TtIIIIpODly BodJoazaDco amm~ (doftD.:c' below) on Olbo1breMarch2f. 2003 (tho ~~DIce"), aD ~cbIriq the DCIOtiIdon oflhc Deed in U. Aanem-1JIaIl be deemed diJcloIures iIlfiarthDllce of settJem._ and IbaIl ~ be admfJl2Dle for any parpo.e, and .. FonoloAn Aedoa IbaU r.o1Itimt~, ' . The ~~~i Parbe.rauco CoucIition&" iDo1ude the foIlowiDg: (a) Tho Deed in Lieu A.areaiat is tbIly GICIIteclIDd delivered by Fremom. 6200 IIId ifn:qui:n:d, hy P&Yid~ (tJac ~VGt? m acc:ordaDce wi1h the tIlrmI oftbiJ Letter; (b) 6200 1I8eI belt eflbrts to IllIist tile Receivw in the oompletion of tbo Leue betweeo tile Recc:ivcr IDd Novutar M'arfpp, 1iIc. M"ant''). BludiDJ, bat DOt limited to. the JaOlBUoa oran iIIUeI m.aa, to ~ (c) The R.eceiver, FI'eIDDat, 6200 IIDd .u mcMann' lillll cJ~im.llW (hereiufter ~~ to coDecciwly as the ''U1Il cr.a-ft") IbaU bavo eDtered into. or tIH; " , . " Court.... haw pated....1Jy 1CipaJ" or otbertrilc: (i) ..ap.J..... ...... , ~viq llelllDtioa by......." IJII1l'D'II of1bo]Mle (1be"'" CJafcIi')' 1114 (B) ~I ~ fbtlJ'JllOVll otlltclilfoMt JRfeCIlft...... . tor a.o__ ~"'1D beClOlllpleteclJD ~.a with .... LeaI_ - . 'c..motlMir ,..v~__ a4~ to the baiIdiq. 'lbeLeMeOnler sbaIl.. 0.-,.,.. the pmSea. ~ bubo CiOD-iMODI paylbJe to" bratem in'~ wi1h IImh Leue ... appnmcJ; IIId (d) . Tbeltlceiwz:, &.cmt. 6200 IIUI the UIIl CJaiJ~ aha11 Jaave ....kda. or the Court 1bI111iavt JtIIIIed. oita1iy ~~ or otiMrwiIo. . order , 1pplO" lie pIJ)'JIlld otdeht III'Yice lam JIlt opIlIItiac iDoome pIIa'Me4 by Ihc JII'OJ*tY IUd ~~ that the fimdapdd by.. Rcoc:iva'_~ ~"'1Dd 1Irokcn' l!ftIIIMl-., it." far 1beDeciliaa (bt 1_ are fidure Idvmcel Cu.._Old by CIte CcnIft', prmoulbture.waco Older. 6200 ~ that JUGh IItuIe UvIacet.-, iDcludecfin 1be portion or. PUIdIuo Price let fbrtb laBel) below. ' , . 'IbGparties apcto~ tri pod fIitb. tbetsmsofdll DCecliD1Jea~dadqthe TcmpadlY Pom.a- Period. TboDcecJ in Lieu Aareeaaeat IhaI1 CODtaiD. at..... tho tbUowiDI teDDI: A. Coawwaceotv...rf~.I>-J ~. &....... 6200 shall upon" Bflictive D.- ddiwr fDfD -=row It CbicIap TU1e IDIaraace Compaay (1be "Title ~ in QDnIIDd, 0Jd0 aJimited wmaat)' deed(fhe"'Deecr) ~ the ~to Pftmam or aa edy..... by PraaoDtprior1D the BffiIct:ive Date. The DOCICIIhtIl coavcy tide to PNmaat lDbJece aaly II) tile Loa ~ -....01.... wiJhfDCUkd __ a of tile dMeJunof_ ibtIn.... .~ 1Jy dID 1teceiver. pm\'ided, bcMGYW if the Deed iam:osde4 on <<befin May 10,2003. tbm lbc.Dccdmaybe aabject to the Mech-".,' Liam, IUbject to 6200', ob~ to depoIit tile Pay-OJI'F'l1DdI (.wined bcIow) -reIeIIe "~CI' U- u M;(JLed hebv. 11aeDeeclIbaU....-w tile ~lpp. . The '11de CcliDpa.y. 6200 lad JlremcDt IhIU .... iDto II 0I&lmW ~ .......1ziqtho Titlo Cclapayto ~lt4lyrecord the Deed. wit1Iout fbrtbm-~Aum or DOfict to 6200 or lIlY o6er party upoa the BIcrow TCIJIlinIaoaDate (defined below) 1IIII_11e 11de Compaay IhaJlIIavD rccmcct the PurcbaIe Prioe (dofiDecl below) ill itllCc:oaat.1CeyBak NatioDal A-:"~ftft qd Iaoh 1DGDi. ~ whe tnaIfamd by the Title Compaay to :J?l-..-4 (receipt cnn~ OIl or hdn 5:00 ]J.m. as.T. on the BaQow 1'~..J...eiGG Date (defined below). " B. 62OO'IIUahtto T~BIamw. 6200dWlbawtberishttotmmimlte Ibt cscmw by deJivering to .... TitIo CoaIpaIIf, in bmDecIi.ae1y IMilablo fuacIe. OD or beIbn M.-y 10, 2003 (the t'Btc:low TODDiDatior1 Date") 1I11Dl0UD! equal to tho IUD1 oIthe1bllowf:n: ~ rofcu~ to conectively .. the"Parchue Prlce": '(1) Piftea1 MiJJioa Two HDudn.d Pifty-Two 1'IIoUIIIl4 Two Huadrecl T. and 7S1100DoDan ($15,252,210.75); , , " (2) the-_ or.u ......hy~...._......dIte hweot ~.. hlatJlDtJiJldted tD....... fbrlntin. OOM',.....1IDIDt a..JIM'~ IIIlI pu....._ ottJae~ PIo.Pcwt:.t; ... III Gkaoltt -'.,... C.,..ly IIOlacJDtB ....COVCRd by B(2) Ibow) ~ by A~ lIIIl'*s04 Wi benimlRlned byLolD noeun.ac. (oo~t -ea.t'); prorided, 1MnwM:c. lilt.. ColIS CIIJI..aACd SewIlty-Phe 'I'hoaIIad IDd 001100 DoIJam ($15.000.00). 6200 IhaU bavetbo OM (1) dmoJiaht to GIaLd 1110 Btcaow T-fn~ DD to 1uae 24, 2003; PIOvidIcL .., 6200 deliVID 10 Pi---. in immectitrely av6b1e bids, on 01' beIn "'10,2OO3.tJse lDIOUDtofODo Haadrod Pifty~ IDl! 001100 DoDln ($lso.ooo.oo) {tho ~Feej. 'l'JJeEztcalioa Pee I1d be Daln.tbildabJeIll4Ih1D 11M be tppUMh18 to tho PuzdIua Price. C. Ji.ofPiDlt~l n.Dee4iD.tieu~.. tbeDeeclahaU... 6200 aziaht orh1W1bulto puraIaMe die Marrppd~~ &mJ Jraaat (the ....0P1t."). TIle ROft.IIbaIl.~ .,.Minh 26, ZOO4. 6200t, tIdJun to ~.",.",.,..... tImIs ofey1bird-plltyo. ("Qftir") daImmI to 6200 by Prflmuad.ClIl arbain $:00 p.IIL !.S.T. of1be 1bUd C3"')ctay....1DOb DOtioe (die ..~ DIre, Iba1l he "--' 6200'.1!Idato awrof. . , ~ with 1IIpec.t 110 IIIda Oller. '...ad tlJaJlttaw fine (3) JIIOI1ths to olDIe the tI~ llOIIta'apJltId bydao 0Ber. 1f6200 e'" tD ~ ill J.OlIR, tbeQ 6200 tbIIl de1iwr in in".~~ aniIIbJeAlDdl to 1'l~ 011<<.... 5:00p.m. BAT. ottbe IIOOad (2-') day ....Acc:CJ'4aa~Dafe, the....at 'l1ne IIaDdrecl Tbon.MIJ ID4 001100 DoDm (S3OO,OOO.OO) Cas. ...01llt.... ~. TheROPa.....P_lbaDbc ~lo to tire,..... lit ..... iu die om.; -uan IIOC bo ft6ncIab10. If6200 fills to cJoec the ~--.Aiaa ~tat.I hytbe Offilr witbiD Iixty (60) da)'I after the ~DIte. then tho R.OPR.1haJ1 immediately expire. (3) D. ~L.J LiCIJI. 6200 IItaU have die -.o)qto oWiption to --1hc""-oaf the If-''IIIk.' Ueu em. or before 1mID 24. 2003. If6200 doeI DOt cJeHver die Purchae Price Gl'tho ~ Fcc pdor to .May 10.2003, ..6200 (1) tba1l uae belt efI'orta to CIII8e IU leD 110..... to c1Ipotit liea nMn (the "Liea W~, lrith tbc Tttt. eom.-y IIId (2) J1sIU deposit _amount equal to 125% of tho aareaare l'IIue old nch Jiem, ,Jus __ fbtnoa (tho "Pay..Qfr Fundsj. The LieaWliva (it6200 fa .1f'U1IIfid in obtafDifta such IJec WaLv_) aad tbe Pay..Oft'PuIIda IhaII be depolited wi. Title ~ 1m or bretore the Btcrow Ttlmm.tfoa Dade with__ hrevOClhJe iDstructicms to the Title Couipaoy to ncord IUdI LiCll2 WliftlW aid dcdiver the 8ID01II1ts 1+ ~uDled by Ibe~.' Litlll to Krill Q)~ mv. on 1uao 24. 2003. B. Farm of ~ The Deed iaLieu.JWI caatain aU DOJD3tl8Dd~.,. tepf II! ~ \IV"" md coveaa. bmd Ua IimiIIr aareementI.!nclwting IIICh otthe same u zelate to tho ~t11 COIldi.1:loa oltbe ~ " .' , PtvpeIty. To die extIIIt 1MIiII1JJe. ibDda .-wad by1k~ l11l1I.. uIed to ,.,.111 ClCMItI, ~ _toeIllttldl1nlldca ........ m-i_ n.1leed iIlU.~UaJ1pmvicletlalt. qpcm ~ oflle... CoItcIitbI (cIo6aocIbe1ow).PnmcIlt sIIiD __ Lewia B. W.... Btommyothit~ .....oat ofllldl,.ia COIUIIOtiOll will the ~ 1lId~ ofPrJDcipal. At IOGIlMJIIIDIioal .... tile.. htno( Pra..v.41h1JJ diImia wit1aollpniaclice die 1Gtioa""" .... LcrwiI B. W"'U ill 1M UDitall StIteI DiIDfClt Court, aac.. man. The...... CcmdfIioa" IbaIl be deemed lllWied 1IpClO die moue olaD M-'-UCI Ueas a4 thc~ ofaU o1aUu 1114law1uitl apimt tbePJopmy IlIdPremoat. In DO mIIJt Iba1l Lewia I. w....n be mle.. fRa his IiabUlty 1JDdcr~ aa.~J'or ~ofPriacipa1" aDM'~ LieDI are~~ It tbe M-h-qt u.. 8_ ...... piotto:Juae 24. ~t or if6200 &fJa to dClpCIIit the Liea Wama or Pay..o<<PaadI pdarto the BIcaow T~...;.~ Date, tbca ~0..-4D1Jl.Juwe" _to ..rid.. proIeOIItfon ofllllCiicms ~ by" Gaaaty IDClAplemeDt~PriDo.fpII; ~however.'" it d1a Dcc:d ia ~ _the .,;.... ..... wldch Lew!. B. WaDaerB IhaI1 ' be UbJe fiJrlUCla Mecll8iOl' U. ..1IIIGUDt equal to tile IIIlO1Dlt ~td to ~ - releae atrecanl tbeM..CI' U....~ Wnot JiltiW1o, all 00ItI1ID4...... (iIdacUaa"""" .,...,.' Ieea) nfadDa tit.. . fDJeIbIr 1dh~M OD tile ..~ ofnell IIIIOUIdI at tbc amJJI1 tI1r:of twelve percoa4 (12%) per IIUIIIIl t.'!II~J"~ OD.T1JDe 24.2003 aa4""1IJNIl the dIee IIpOD wId~ .u 1IIOh... ..pDt. 6200 IOImowledaee 1Ut au Letiar IIId tile ~Deecl in U. ApeecDent lie beiDa eatered into IIId COIIIidered whmtarily IIId fIithaut caercicut of lIlY kiDd. . Please acbowWae)'OUr ~ to tboinsofaa by GeCIIIiDa wheroprovided heJcw. SiDeerely. F. 6200 Oak: Tree Blvd., u.c ~fM/ . =':jC,M,(f {".8...'1'/ Title: S..c c,~St.. t & LOAN Name: ' cott S. Manl in Title: Vice President ~ r r , . COpy Loan No.: 950113959 DEED IN LIEU AGREEMENT THIS DEED IN LIEU AGREEMENT ("Agreement") is entered into as of May 8, 2003 (the "Effective Date"), by and among 6200 OAK TREE BLVD., LLC. an Ohio limited liability company ("Seller"), LEWIS E. WALLNER, II, an individual ("Wallner") (Wallner, along with Seller, each, individually. a "Guarantor" and collectively, the "Guarantors"), and FREMONT INVESTMENT & LOAN, a California industrial bank ("Lender") with respect to the following Recitals: RECITALS A. Seller is the owner in fee simple of certain land and improvements thereon (the "Real Estate"), having a street address of 6200 Oak Tree Boulevard, Independence, Ohio, and more fully described in Exhibit A attached hereto and made a part hereof, and the owner of certain Personal Property (as hereinafter defined) associated with the ownership and operation of the Real Estate. B. Pursuant to the terms of that certain Loan Agreement dated October 23, 2000, by and between Seller and Heller Financial, Inc., a Delaware corporation ("Original Lender") (together with all amendments, modifications, extensions and renewals thereof, collectively, the "Loan Agreement"), Original Lender made a loan to Seller in the maximum principal amount of Fifteen Million One Hundred Thirty Thousand Dollars ($15,130,000) (the "Loan"). The Loan is evidenced by (a) a Promissory Note (Note A) dated October 23. 2000, made by Borrower, payable to Original Lender in the face principal amount of $9,834,500 (together with all amendments, allonges, modifications, extensions and renewals thereof, collectively, the "Primary A Note") and (b) a Promissory Note (Note B) dated October 23, 2000, made by Borrower, payable to Original Lender in the face principal amount of $5,295,500 (together with all amendments, allonges, modifications, extensions and renewals thereof, collectively, the "Primary B Note") (the Primary A Note and the Primary B Note shall collectively be referred to herein as the "Note"). All initially-capitalized terms not otherwise define d herein shall have the meanings given such terms in the Loan Agreement. C. The repayment of the Loan and Seller's performance of its obligations under the Note are secured, among other things, by that certain (i) Open-End Mortgage, Assignment of Rents and Security Agreement dated October 23, 2000, made by Seller in favor of Original Lender. recorded October 26, 2000, in the Official Records of Cuyahoga County, Ohio, under Instrument No. 200010260007 (the "Official Records"), and encumbering the Property (together with all amendments, modifications, extensions and renewals thereof, collectively, the "Security Instrument"); and (ii) Assignment of Leases and Rents dated October 23, 2000, made by Seller in favor of Original Lender and encumbering the Property, recorded October 26, 2000, as Instrument No. 200010260008 in the Official Records (together with all amendments, modifications, extensions and renewals thereof, collectively, the "Assignment of Rents"). " D. The Loan is guaranteed by that certain Agreement of Principal (the "LROG ") dated October 23. 2000, executed by Wallner. in favor of Original Lender. and that certain Guaranty dated October 23.2000, executed by Guarantors in favor of Original Lender (the "Completion Guaranty," and together with the LROG, each, individually, a "Guaranty" and collectively, the "Guaranties"). E. Seller and Guarantors executed that certain Hazardous Materials Indemnity Agreement dated October 23, 2000 in favor of Original Lender (together with all amendments, modifications, extensions and renewals thereof, collectively, the "Environmental Indemnity"). F. Pursuant to (i) that certain Assignment of Deed of Trust dated February 15, 2001, executed by Original Lender in favor of Lender, and recorded on February 15, 2001. in the Official Records, as Instrument No. 200102150540, (ii) that certain Assignment of Assignment of Leases dated 28571622.10051403 1354P 063 , . j February 15, 2001, executed by Original Lender in favor of Lender, and recorded on February 15. 2001, in the Official Records, as Instrument No. 200102150541, and (iii) that certain Assignment of Collateral Loan Documents dated February 15, 2001, executed by Original Lender in favor of Lender, Original Lender assigned to Lender all of Original Lender's right, title and interest in the Loan and all doclments securing or executed in connection with the Loan including, without limitation, the Loan Agreement. the Note, the Security Instrument, the Assignment of Rents, the Guaranties. and the Environmental Indemnity. G. The total indebtedness currently outstanding under the Note as of April 15, 2003, is Sixteen Million Seven Hundred Ten Thousand Six Hundred Thirty-Five and 93/100 Dollars ($16,710,635.93), which includes the current outstanding principal balance of the Loan, plus accrued but unpaid interest thereon and fees and costs and protective advances incurred by Lender as of such date. As used herein, "Loan DocumentS' shall mean the Loan Agreement, the Note, the Security Instrument, the Assignment of Rents and all other documents securing, or executed in connection with, the Loan, but shall exclude the Environmental Indemnity. H. Seller is in default under the Loan Documents as a result of its failure to pay certain amounts to Lender due under the Loan Documents since January 24, 2002 (collectively, the "Default"). I. Seller and Guarantors desire that Lender covenant not to maintain any suit or action against Seller or Guarantors personally for foreclosure of the Security Instrument. or for payment of indebtedness under the Loan Documents except as expressly permitted hereunder, and Seller is willing to transfer the Property (as hereinafter defined) to Lender or to a third party designated by Lender to take title to the Property ("Lender's Designee") and Seller and Guarantors are willing to undertake the obligations and make the payments described herein in consideration therefor. NOW, THEREFORE, for good and valuable consideration, the receipt, fairness and adequacy of which are hereby acknowledged. Seller, Guarantors and Lender agree as follows: 1. Certain Definitions. In addition to the terms defined in the Recitals, the following terms shall have the meanings set forth below: "Additional Payments" is defined in Section 9,9. "Assignment of Leases' is defined in Section 2, "Bill of Sale" is defined in Section 2. "Claims" is defined in Section 7,3. . "Closing Date" is defined in Section 6.2. "Contracts" means all arrangements. obligations, agreements or cOl)1mitments, to which the Property or the owner thereof is subject, and all amendments thereof other than the Leases, including. without limitation, property management agreements, leasing agreements, all equipment leases, service or maintenance contracts and agreements. "Closing Documents" is defined in Section 2,1. "Deed" is defined in Section 2. "Disclosure Materials" is defined in Section 3.11. "Environmental Action" is defined in Section 3,15. 28571622.10 0514031354P 063 2 l .~ "Environmental LawS' means all federal, state or local laws, ordinances, requirements and regulations (including consent decrees and administrative orders) relating to health, safety, industrial hygiene, waste disposal, or the protection of the environment, including, without limitation: the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, the federal Superfund Amendments and Reauthorization Act of 1986, the federal Resource Conservation and Recovery Act of 1976, the federal Clean Air Act, the federal Water Pollution Control Act and federal Clean Water Act of 1977, the federal Insecticide, Fungicide and Rodenticide Act, the federal Pesticide Act of 1978, the federal Toxic Substances Control Act, the federal Safe Drinking Water Act, the federal Hazardous Substances Transportation Act, and all amendments thereto and regulations adopted and publications promulgated pursuant thereto. "ERISA" means the Employee Retirement Income Security Act of 1974. "Escrow Termination Date" is defined in Section 2.3.1. "Estoppel Affidavit" is defined in Section 2. "Extension Fee" means a non-refundable extension fee in the amount of One Hundred Fifty Thousand Dollars ($150,000), "FIRPT A Certificate" is defined in Section 2. "Fixtures and Tangible Personal Property" means all fixtures, furniture, furnishings, fittings, equipment, machinery, apparatus, appliances and other articles of personal property now located on the Real Property and used or usable in connection with any present or future occupation or operation of all or any part of the Real Property. "Fremont Foreclosure Action" means that certain foreclosure action pending in Cuyahoga County, Ohio Court of Common Pleas styled Fremont Investment & Loan v, 6200 Oak Tree Blvd.. LLC. et al. and designated as Case Number CV02-466719. "General Assignment" is defined in Section 2. "Governmental Agency" means each and every federal, state, municipal or otrer governmental or quasi-governmental agency "Hazardous SubstanceS' means (a) any chemical, compound, material, mixture or substance that is now or hereafter defined or listed in, or otherwise classified pursuant to, any " Environmental laws as a "hazardous substance", "hazardous material", "hazardous waste", "extremely hazardous waste", "acutely hazardous waste", "radioactive waste", "infectious waste", "biohazardous waste", "toxic substance", "pollutant", "toxic pollutant", "contaminant" as well as any formulation not mentioned herein intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity. carcinogenicity, toxicity, reproductive toxicity, "EP toxicity", or "TCLP toxicity"; (b) petroleum, natural gas. natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas) and ash produced by a resource recovery facility utilizing a municipal solid waste stream, and drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas, or geothermal resources; (c) "hazardous substance" as defined in any Environmental Law; (d) "waste" as defined in any Environmental law; (e) asbestos in any form; (f) urea formaldehyde foam insulation; (g) pOlychlorinated biphenyls (PCBs); (h) radon; and (i) any other chemical, material, or substance exposure to which is limited or regulated by any Governmental Agency because of its quantity, concentration, or physical or chemical characteristics, or which poses a significant present or potential hazard to human health or safety or to the environment if released into the workplace or the environment. "Hazardous Substances" shall not include ordinary office supplies and repair. maintenance and 28571622,10051403 1354P 063 3 ( f .J , cleaning supplies maintained in reasonable and necessary quantities and used in accordance with all Environmental Laws. "Intangible Property. shall mean all intangible property. if any, of any nature, including, without limitation, the Property Records and the Property Reports, relating to the Real Property, the Personal Property, the Leases, all permits, all financial and other books, records, correspondence and files (including leasing, marketing and sale files) maintained in connection with the operation or development of the Real Property, all final building plans and specifications (including "as-built" drawings) respecting the improvements, and all other documents pertaining to the Real Property and Personal Property which are within the possession of, under the control of, or reasonably available to Seller or Guarantors, all accounts. notes, letters of credit, accounts receivable, contract rights, drafts, and other forms of claims, demands, instruments, receivables and rights to the payment of money or other forms of consideration, whether for goods sold or leased, services performed or to be performed, or otherwise, owned by Seller or in which Seller has any interest, together with all warranties, guaranties. security agreements and rights and interests securing the same, all of the Property Claims and Seller's claims. causes of action, choses in action, litigation or arbitration judgments. awards, settlements, rights of recovery, rights of reimbursement and rights of set-off of any kind (including without limitation all claims against subcontractors, suppliers and their insurance companies); all contract rights. leases, computer systems, programs and operating systems, technology and technical information, marketing materials, copyrights, warranties. permits, plans, drawings, utility and similar deposits, and other items of intangible personal property relating to the ownership or operation of the Real Property and owned by Seller, excluding, however, (i) Contracts, (ii) the Leases, and (iii) Permits. "LeaseS' means the interest of Seller in and to all leases, subleases, licenses, franchises and other occupancy agreements, whether or not of record, which provide in any way for the use or occupancy of space or facilities on or relating to the Real Property, and all assignments, subleases and amendments thereto and guaranties thereof. "Lender Released Parties' is defined in Section 7,1. "Mechanics' Liens" is defined in Section 4,6. "Owner's Policy" is defined in Section 5.1.3. "Payoff Amount" means an amount equal to the sum of (a) Fifteen Million Two Hundred Fifty- Two Thousand Two Hundred Ten and 75/10 Dollars ($15,252,210.75), plus (b) the aggregate amount of all advances (including interest thereon) made by Lender under the Loan from and after March 20, 2003, including, without limitation, all advances for brokers' commissions, tenant improvements and protective advances for the Property, plus (c) all other costs and expenses (expressly excluding the advances covered by clause (b)) incurred by Lender that are required to be reimbursed by Seller in accordance with the terms of the Loan Documents (provided, however, that such costs and expenses referred to in this clause (c) shall not exceed Seventy-Five Thousand Dollars ($75.000). " "Permits" means all licenses and permits owned by Seller or used in or relating to the ownership. occupancy or operation of the Property or any part thereof, including. without limitation, all licenses. permits, certificates of occupancy, approvals, dedications, condominium rights, condominium plans, subdivision maps, development rights and entitlements issued, approved or granted by Governmental Agencies in connection with the Property. and all licenses, consents, easements, rights of way and approvals required from private parties to make use of utilities and to insure vehicular and pedestrian ingress and egress to the Property. "Person" means and includes natural persons, corporations, limited liability companies, limited liability partnerships, limited partnerships, general partnerships, joint stock companies, joint ventures. associations, companies. trusts, banks. trust companies, land trusts, business 28571622.100514031354P 063 4 . ' " trusts, real estate investment trusts or other organizations, whether or not legal entities, and governments, agencies and countries and political subdivisions thereof, "Personal Property" means all Property other than Real Property. including, without limitation, (i) the Fixtures and Tangible Personal Property, (ii) the Tenant Deposits, (iii) the transferable right, title and interest, if any, of Seller in and to the Leases and the Permits, (iv) the Property Records, and (v) the Intangible Property. "Property" means (i) the Real Property and (ii) the Personal Property. "Property Claims" means each claim, action, lawsuit, administrative proceeding, investigation, condemnation, governmental enforcement proceeding, or arbitration, pending or contemplated, to which Seller is (or is expected to be) a party, which relates in any way to the Property or the operation thereof, including, without limitation, claims of tort, breach of contract, violation of law or eminent domain, whether or not covered by insurance. "Property Records" means records, computer programs and software, statements, invoices, files, and books relating solely to the operation of the Property. "Property Reports" means all architectural drawings. environmental, geologic, geotechnical, soil, seismic, engineering, structural, drainage. sprinkler and other reports, assessments, audits, preliminary studies, reviews, estimates, appraisals, economic feasibility studies and surveys, whether prepared by Seller, Guarantors, an affiliate of Seller or Guarantors or any other Person, with respect to any aspect of the Property. "Real Property" shall mean the Real Estate together with all (i) privileges, rights, easements and appurtenances belonging to the Real Estate, (ii) development, air, mineral, and water rights relating to the Real Estate, (iii) streets, alleys, passages. easements and other rights- of-way or appurtenances included in, adjacent to or used in connection with the Real Estate, (iv) payments of any kind due from or payable by (x) any Governmental Agency. including, without limitation, refunds, rebates. reimbursements, reserves, deferred payments, deposits, costs savings and governmental subsidy payments and registered credits, authority or district or (y) any insurance or utility company relating to any or all of the Real Estate, (v) refunds, rebates, reimbursements and payments of any kind due from or payable by any Governmental Agency for any taxes, assessments, or governmental or quasi-governmental charges or levies impose with respect to the Real Property. and (vi) buildings, systems. facilities. fixtures, structures, fences, parking areas, machinery, equipment. apparatus and appliances, if any, used in connection with the operation, maintenance, use or occupancy of the Real Property. " "Receiver" is defined in Section 3,28, "Receiver Stipulation" shall mean that certain Order issued by Cuyahoga County, Ohio Court of Common Pleas styled Fremont Investment & Loan v. 6200 Oak Tree Blvd., LLC, etal., and designated as Case Number CV02-466719, ordered May 20,2002. "Revenues" means all revenues related to the Property, including, without limitation, (i) fixed monthly rents and other fixed charges payable under any of the Leases, (ii), any amounts payable under any of the Leases by reason of provisions of the Lease relating to escalations and pass-through of operating expenses and taxes, and adjustments for increases in the consumer price index and the like, (iii) any percentage rents payable under any of the leases, (iv) rents or other charges payable by under any of the Leases for services of any kind provided to it (including, without limitation, making of repairs and improvements. the furnishing of heat, electricity, gas, water, other utilities and air-conditioning) for which a separate charge is made, (v) all parking charges, and all other gross revenues from or in connection with the ownership operation. management, lease, or use of the Property, including, without limitation, rents, 28571622.100514031354P 063 5 .,' expense reimbursements, interest income, forfeited security deposits and extraordinary income and receipts. "Scheduled Closing Date" shall mean eith?r M~y ,tg,~QQ~, ()r, if Seller has paid the Extension Fee in accordance with Section 2.3.2(b)hereoT;~l:J'i1nif24;'2003, unless otherwise agreed in writing by both Lender and Seller.<" ...,. "Tenant Deposits" means all tenant security deposits and other d9posits delivered to Seller in connection with the Property. "Title Company" shall mean Lawyers Title Insurance Corporation. 2. Transfer of Prooertv. Subject to the terms and conditions set forth in this Agreement, Seller agrees to convey the Property to Lender or Lender's Designee. 2.1 Closing Documents. Not later than one (1) business day after the Effective Date, Seller shall execute (and acknowledge, as appropriate) in favor of Lender or Lender's Designee, and shall deliver to Title Company in escrow (the "Escrow"), the following (collectively, the "Closing Documents"): Jar ~ (t(' )dr )er ~. ~ ,^ ~ J (g) V \.IV'"' ~' / t Ii) Ii \J \ q(l ",iV... a limited warranty deed in the form of Exhibit B (the "Deed"); a bill of sale in the form of Exhibit C (the "Bill of Sale"); a general assignment in the form of Exhibit D (the "General Assignment"); an assignment of leases in the form of Exhibit E (the "Assignment of LeaseS'); an estoppel affidavit in the form of Exhibit F (the "Estoppel Affidavit"); a certification of non-foreign status in the form of Exhibit G (the "FIRPTA Certificate "); a notice to each holder of a utility deposit in the form attached hereto as Exhibit H, instructing such holder to pay any refund thereof to Lender or Lender's Designee ("Notice to Holder of Utility Deposif'); a Tenant Notification Letter for each Tenant and letters of notification to entities and persons who are issuers of the Permits, each in the form of Exhibit I attached hereto (a "Transfer Notification Letter"); " an opinion of counsel to Seller and Guarantors in form and substance reasonably satisfactory to Lender, with respect to due formation, authorization, power and authority, execution and delivery, enforceability and such other matters as are reasonably requested by Lender; and such transfer declarations, disclosure statements. affidavits, owner indemnities, evidence of due formation and organization, evidence of due authorization, execution and delivery, and other documentation that may be required by law or as may be reasonably required by Lender or Title Company. ~ ~2, ..,......,. .~~II~(~}r:~t~llctions t~,-i!!E:l~,S?!YlB.~ n'{.....8ElJJ~r!:1E;lf!18Y,91f,~~ts,:irm~,Compa'*yc~~..<. follows: in the .event (i) Seller fails to pay the Payoff Amount, bY:~~~'~;,H:~l1~fx.~''9it:;1?1':!~h)Qr'.c!iln;eI'lUunc:ls, to Lender on or before the Escrow Termination Date (which failure'~baR:Qe,oorifirmed.to~itle,OompaRy'in writing by Lender), and (ii) Lender delivers to Title Company Lender's written authorization to proceed 28571622,10051403 1354P 063 6 " 1/ ""i~h,1tJ,~ .s!R~!]~j~~;,~~{~~!l~Jt~r<iefined). Title Company shall consummate the Closing in accordance with the provisions OT Section 6 hereof. 2.3 Seller's Escrow Termination Riaht. 2.3.1 Termination of Escrow. Seller shall have the right to terminate the Escrow upon satisfaction of each of the following events on or before 5:00 pm (eastern standard time) on May 16, 2003 (any such date (as may be extended pursuant to Section 2.3.2 below) in which each of such events have been satisfied being referred to as the "Escrow Termination Date"): (a) Seller's deposit of the Payoff Amount, in cash or current funds, with Title Company, and (b) pursuant to the written instructions of Seller, Title Company's disbursement of the Payoff Amount to Lender and Lender's confirmed receipt thereof. As of the Escrow Termination Date, Lender shall instruct Title Company to return all of the Closing Documents to Seller, the Escrow shall be terminated, and this Agreement shall be terminated and of no further force or effect. 2.3.2 Extension of Escrow Termination Date. The Escrow Termination Date may be extended to on or before June 24, 2003, upon the satisfaction of all of the following tenns and conditions: (a) On or before May 16, 2003, Seller shall give Lender written notice that Seller desires to extend the Escrow Termination Date to on or before June 24, 2003; (b) Concurrently with Seller's notice to Lender pursuant to Section 2,3.2(a) above, Seller shall deliver to Lender the Extension Fee in cash or current funds, which Extension Fee shall be nonrefundable and shall not be applicable to the Payoff Amount; and (c) No default shall have occurred under this Agreement on or before the date of Seller's notice to Lender pursuant to Section 2.3,2(a) above. 3. Reoresentations and Warrqnties. Seller and Guarantors each represents and warrants to Lender, which representations and warranties shall be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, that: 3.1 Authorization of Seller. Seller has full power. authority and legal right and capacity to execute and deliver this Agreement, the Closing Documents and all other documents and instruments required to be delivered hereunder. This Agreement, the Closing Documents and all other documents and instruments required to be delivered hereunder constitute valid and legally binding obligations of Seller. IP 3,2 No Conflict. No consent. approval or authorization by any individ ual or entity or any court, administrative agency or other governmental authority is required in connection with the execution and delivery of this Agreement or the applicable Closing Documents or to make this Agreement or the applicable Closing Documents the legally binding obligations of Seller. 3.3 No Emoloyees, Seller does not now and has never employed any Person. 3.4 ERISA. Seller is not an employee benefit plan under ERISA. 3,5 Comoliance. Except as disclosed to Lender in writing, Seller has received no notice of and to Seller's knowledge. there is no violation or alleged violation of any legal requirement affecting the Property, including, without limitation, any violation or alleged violation of any local, state or federal environmental. zoning, handicap or fire law, ordinance, code, regulation, rule or order, and specifically including, without limitation, variances or special permits affecting the Property and the Americans With Disabilities Act. 28571622.10051403 1354P 063 7 , ' , 3.6 [Intentionally Omitted] 3.7 [Intentionally Omitted] 3.8 Bankruotcv Matters. Seller has not made a general assignment for the benefit of creditors, filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by its creditors. suffered the appointment of a receiver to take possession of substantially all of its assets, suffered the attachment or other judicial seizure of substantially all of its assets, admitted its inability to pay its debts as they come due, or made an offer of settlement, extension or composition to its creditors generally. 3.9 No Intent to Defraud. Seller is not transferring the Property with an interest to hinder, delay or defraud any of its creditors. Seller is solvent and will be solvent on the Closing Date and will not be rendered insolvent by the transfer of the Property. 3.10 Prooertv Claims, Schedule 1 contains a description of all Property Claims (other than the Fremont Foreclosure Action) pending as of January 31, 2003 (the "Seller Management Termination Date"), including, without limitation, the damage or relief sought, the name of counsel for Seller in charge of such matter and the current status of such action. Except as described in Schedule 1, there were no Property Claims as of the Seller Management Termination Date (other than the Fremont Foreclosure Action). 3.11 Disclosure. On or before the Scheduled Closing Date, Seller shall have delivered to Lender or made available to Lender for its review and examination, all files, correspondence, documents, agreements, tax bills, insurance certificates and premium bills, instruments, written materials and all other written information pertaining to the Real Property which Seller has in its possession or control (collectively, "Disclosure Materials). 3.12 Existino Aareements. All Contracts (other than Leases) entered into by Seller in connection with the operation or development of the Property have been terminated and are of no further force or effect. Seller has not assigned or granted a security interest in any of the Leases to anyone other than Lender, and its interests therein are not subject to any lien, encumbrance, claim, set-off or deduction. 3.13 Descriotion of Prooerty. Schedule 2 contains a complete list of all Fixtures and Tangible Personal Property. 3.14 Permits. Seller has not received notice of any intention on the part of the issuing authority to cancel, suspend or modify any of the Permits or to take any action or institute any proceeding to effect such cancellation, suspension or modification. Schedule 3 contains a complete list of all Permits in Seller's possession or control. " 3.15 [Intentionally Omitted]. 3,16 Access Devices. Seller does not have in its possession or control any keys for all or any portion of the Property, including, without limitation, the keys for leased space and any office, storage or other facilities used in connection with the Property, or any entry cards or opening devices for any security gates or garages in the Property. 3,17 Environmental Condition. To Seller's knowledge, no spillage, leakage, dumping. discharge or disposal (whether accidental or intentional) of any Hazardous Substances has occurred on, under, from or onto the Real Property, and there are no Hazardous Substances or underground storage tanks located on or under the Property. To Seller's knowledge, (i) no asbestos or PCB compounds were used in the construction of the Improvements nor are any asbestos or PCB compounds located in, at or upon the Real Property; (ii) the Real Property is not in violation of any Environmental Law; and (iii) there 28571622.10 0514031354P 063 8 " are no Hazardous Substances present on the Real Property. Seller has received no notice from any _ Governmental Agency of any investigation or proceeding by such agency concerning the presence or alleged presence of Hazardous Substances on the Real Property. To Seller's knowledge, there are no present, pending or threatened actions or proceedings by any Governmental Agency or any other entity regarding public health risks or the environmental condition of the Property, or the disposal or presence of Hazardous Material. or regarding any Environmental Law (collectively, "Environmental Actions"), and Seller has not received any notice of any such Environmental Actions. During Seller's period of ownership of the Property there have been no Environmental Actions and, to Seller's knowledge, prior to Seller's acquisition of the Property there were no Environmental Actions. To Seller's knowledge, the Property (including underlying groundwater), and the use and operation thereof, have been and are currently in compliance with all Environmental Laws. To Seller's knowledge, all Permits required under Environmental Laws are in effect, and Seller is in compliance therewith. 3.18 Expenses. As of the Closing Date. Seller will have no outstanding accounts payable. 3.19 Property Reports. Schedule 4 contains a complete list of all Property Reports in Seller's possession or control. Except as disclosed on Schedule 4, there are no Property Reports in Seller's possession or control. Seller has provided Lender with a true and correct copy of each of the Property Reports in Seller's possession or control. 3.20"N? .Brokeraae Commission,SeI1e(s sO,!e cOr1ta?tregar9ingthistran~~,ction has ~een djreqtIY'l(jtl;J,l,.end'~r:i:1i),!:l-hi5broker-is' owed. any cl)'rrlmission'ln connectieiiiWlth'th€/ tr~~;'aCtiorls' ... corit&mplafe<{tWhfhi's'Ag'reement. No broker or finder can properly claim a right to a commission or finder's fee based upon contacts between Seller and Lender with respect to the Property. Seller shall indemnify, defend and hold Lender and the Lender designee harmless from and against any loss, cost or expense, including, but not limited to, attorneys' fees and court costs, resulting from any claim for a fee or commission by any broker or finder in connection with the Property, and this Agreement resulting from Seller's actions. 3.21 Confirmation. The recitals to this Agreement are true and correct and the Loan Documents and the Environmental Indemnity are in full force and effect. Seller acknowledges its continuing obligations under the Loan Documents and the Environmental Indemnity, subject to this Agreement. 3,22 Offsets/Defenses. Seller has no (a) offsets or defenses against the payment of the Loan Documents or the Environmental Indemnity, or (b) claims against Lender or any employee, officer, director, or attorney of Lender in connection with the Loan Documents or the Environmental Indemnity, " 3.23 Absolute Conveyance. Seller and Lender acknowledge and agree that the transfer of titl~ to. the Property,toLenderorLender's Designee according to the tetmsof this Agreement is an absolute conveyanceof,all..of Seller's rights,-titleandinterestin and to the Propertyin.fact.aswellas form and yvasnqt l3l1d is not now intended as a mortgage, -trustconveyance,deedoftrustQr,Sep14Fity", interest of any kind; that the,considerationJor such .conveyanceJs exactly as recited,her~o;.alJdtlJat, , ex~~pt ..~9.. ~p~FiP9~,!IX.~~,t,f9r!bJqthis. Agreement, Seller shall have.. nofurtherJ.Qt€1r~,~L(in9t'lq!fl..Q,,~t1J.~;Rt redemption) 'or claims -in and to the Property or to the proceeds and profits which may be derived- tlie~ebf, of any kind whatsoever. 3.24 Consents. Seller has obtained any and all third party consents required for it to enter into this Agreement and for the Agreement to be legally binding against it. 3.25 Acknowledgement by Seller. Seller understands and acknowledges respectively, that (1) it is not obligated to enter into this Agreement, but is doing so of its own free will without interference, influence or coercion by Lender; (2) it has had the opportunity to consult with attorneys, appraisers and accountants of its choice for advice concerning the terms of this Agreement, the fair value 28571622.100514031354P 063 9 . . " of Seller's interest in the Property and the tax implications of the transaction contemplated herein; (3) Lender has pursued a course of fair dealing and the transaction contemplated herein is fair and equitable; and (4) it is entering into this Agreement to avoid the time, delay, expense and publicity attendant to foreclosure, and to enjoy the benefits of Lender's promises and covenants contained herein. 3.26 No Reliance uoon Lender. Neither Lender nor any of its agents. representatives, directors, officers. employees or attorneys have made any express or implied representations or warranties of any type, whether oral or written, respecting the Property, and Seller has not relied on any oral or written statements of Lender, or its agents, directors, officers, representatives, employees or attorneys regarding any aspect of this Agreement or the transaction contemplated herein. 3.27 Comoleteness of Schedules and Exhibits: Disclosure. The Schedules and Exhibits attached hereto, where provided by or on behalf of Seller, completely and correctly present the information required by this Agreement to be set forth therein. No representation or warranty by Seller herein, and no information disclosed in the Schedules and Exhibits hereto supplied by Seller, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading. 3.28 Acknowledgement of Receiver and Aoplication of Cash Flow. Seller acknowledges that, pursuant to the Receiver Stipulation, a receiver (the "Receiver") has been appointed in connection with the Property and that all cash flow from the Property shall be collected by the Receiver and may be applied by the Receiver, with the consent of Lender, to pay all payables arising in connection with the ownership or operation of the Property, or any portion thereof (including, without limitation, principal and interest payments due and payable under the Loan). Seller further acknowledges that any amounts paid by the Receiver to Lender in accordance with the terms of the Receiver Stipulation shall not in any way be included as part of the Payoff Amount. 4. Covenants. 4.1 [Intentionally Omitted]. 4,2 No New Leases or Contracts, For the period of time between the Effective Date and the Closing Date, Seller will not enter into any new contracts, leases or other agreements or terminate, modify or amend any of the Leases, and Seller shall not transfer or encumber any part of the Property or take any other action which would adversely affect the title of any of the Property. 4.3 Reasonable Coooeration. Seller agrees to cooperate in all reasonable respects, with Lender, to carry out the provisions of tl1is Agreement. The failure of Seller to perform its obligations under this Agreement shall be treated as a default by Seller hereunder. The provisions of this Section 4,3 shall survive the Closing Date. IP 4.4 [Intentionally Omitted]. 4.5 Mechanics'Liens. Seller shall be responsible for any mechanics' liens filed against the Property for any labor or materials in connection with the Property for any period on or prior to the Seller Management Termination Date. In the event the Property is conveyed to Lender or Lender's Designee in accordance with the terms of this Agreement, the Property shall be so conveyed free and clear of any mechanics' liens referred to in the preceding sentence. The provisions of this Section 4.5 shall survive the Closing Date. 4.6 Release of Wallner from Guaranties. Upon complete satisfaction of the Wallner Release Condition (as hereinafter defined), Lender shall execute and deliver a release of Wallner from his obligations under the Guaranties, which release shall be in the form attached hereto as Exhibit J. For purposes hereof, the 'Wallner Release Condition" shall mean (i) the release of any and all mechanics' liens (the "Mechanics' Liens") which may be filed against the Property in connection with any labor or 28571622.10051403 1354P 063 10 "t' materials used in connection with the Property on or prior to the Closing Date. and Qi) the dismissal of all claims and lawsuits against either the Property or against Lender in connection with the Property, all to occur on or before June 24. 2003. In the event the Wallner Release Condition is not satisfied, Wallner shall remain fully obligated under the Guaranties and Lender shall have all of its rights and remedies against Wallner thereunder; provided, however, if the Closing Date occurs (!&., the Deed is recorded in favor of Lender of Lender's Designee in accordance with the terms of this Agreement), then Wallner's maximum liability under the Guaranties for payment of the Mechanics' Liens shall be the amount required to fully satisfy and release the Mechanics' Liens of record, including, without limitation, all costs and expenses (including reasonable attorneys' fees) relating thereto, together with interest on such amounts accruing at a rate of twelve percent (12%) per annum commencing on June 24, 2003 (or such later date that any such Mechanics' Lien may be recorded) and ending on the date that all such sums are paid. The provisions of this Section 4.6 shall survive the Closing Date. 5. Conditions Precedent. 5,1 Conditions Precedent to Obliaations of Lender. The obligations of Lender under this Agreement are, at Lender's option, subject to the fulfillment of the following conditions: 5.1.1 Performance. Seller shall have performed and complied with each and all of the covenants and conditions to be performed and complied with by Seller prior to and at the Closing pursuant to the provisions of this Agreement, and, without limitation, the representations and warranties set forth in Section 3 hereof shall be true and accurate in. all material respects on the Scheduled Closing Date and Closing Date as if made as of the Scheduled Closing Date and Closing Date. 5.1.2 Phvsical Condition, Prior to the Scheduled Closing Date, but without limitation of the representations and warranties herein contained, Lender shall not have objected in writing to any matter revealed by its investigation of the Disclosure Materials, the physical condition of the Property and its investigation of any Hazardous Substances on the Property (including Phase I and, if requested, Phase II environmental surveys). 5.1.3 Jitl(3' Qo 9r bt3fore the Scheduled Closing Date, Title Company shalLbe prepared and irrevocably coml11itte;d to. issue toLend~rabindt3rfor..an.4.L"fA1970Jor',l1exten?ed . coverage own~r' s .policy. oJJ!t!~i.ris~l~n~e.~(th~' "(jirio~r;~.. '~~I.i~y'rVJl:1ichshalib~'-iSsued ii-r~ccordance with the Title POlicy"ReqU'ifEfmentssetforth in Schedule 5 attached hereto. Payment of any title preiT1iurns or other costs and expenses incOflnt3~~ionw!ththe Owner's Policy shall be the responsibility of . Seller, subject to the limitations set forth in Section 6.4: . .. " 5.1.4 Insoection. On or before the Closing Date, lender shall have approved (a) the results of any and all inspections, investigations, tests and studies (including, without limitation, investigations with regard to zoning, building codes and other governmental regulations, architectural inspections, engineering tests, economic feasibility studies and soils, seismic and geologic reports) with respect to the Property (including all structural and mechanical systems and leased areas) as Lender may elect to make or obtain, and (b) the Disclosure Materials, During the period of time between the Effective Date and the Closing Date, lender and lender's representatives, agents, and designees shall have the right, at reasonable times and upon reasonable notice to Seller to enter upon the Property for any purpose in connection with its proposed acquisition of the Property, including, without limitation, the right to examine all books, records and files of Seller relating to the Property and the right to make such inspections, investigations and tests (including all leased areas and mechanical systems) as lender may elect to make or obtain. Seller agrees to make all such books, records and files available to lender and lender's attorneys. accountants and other representatives at any time during business hours upon reasonable notice from lender. The exercise by lender of any of the preceding or any other act of lender shall not negate any representation, warranty or covenant of Seller or modify any of Lender's rights or Seller's obligations in the event of any breach by Seller of any of its representations, warranties or covenants under this Agreement. To the extent (i) lender undertakes inspections over and above what is permitted under the Loan Documents, and (ii) the Escrow Termination Date has occurred, Lender 28571622,10051403 1354P 063 11 ,," 1;" agrees to indemnify, defend, and hold Seller free and harmless from any loss, injury, damage. claim,/ien, cost or expense, including attorney's fees and costs, arising from lender's, its employees or agents (i) gross negligence or wrongful misconduct or (h) physical damage to the Property, in either case arising out of lender's inspection of the Property. 5.2 Conditions Precedent to Obliaations of Seller. The obligations of Seller under this Agreement are, at Seller's option, subject to Lender performing and complying with each and all of the covenants and agreements to be performed and complied with by lender prior to and at the Closing (as hereinafter defined) pursuant to provisions of this Agreement. 5.3 Failure of Conditions Precedent. If any of the conditions set forth in Sections 5.1 or 5,2 have not been satisfied by the date set forth therein for the satisfaction of such condition, and the condition has not been waived in writing by the party to whose benefit such condition accrues. then such party shall have the right, by written notice to the other parties, to terminate this Agreement and the obligations of the parties hereunder, but such termination shall not release Seller from liability for any breach of this Agreement occurring prior to such termination. and shall not release Seller from any of its obligations under the Loan Documents and the Environmental Indemnity. 6, Closing, Upon execution of this Agreement by Seller and Lender, an original copy hereof shall be delivered to Title Company for execution by Title Company with respect to matters relating to ~'Title Company. This Agreement shall constitute both an agreement between Lender and Seller and escrow instructions for Title Company. Subject to the terms and conditions hereof, the closing of the transactions contemplated by this Agreement (the "Closing") shall occur on the Closing Date. Seller, Lender and Title Company agree to execute such escrow instructions as Lender or Trtle Company may reasonably require to carry out the Closing in accordance with this Agreement; provided, however, in the event of any conflict between the terms of this Agreement and the terms of such escrow instructions, the terms of this Agreement shall govern. 6.1 Deliveries bv Seller at Closina. Seller shall deliver, or cause to be delivered, to Lender or Lender's Designee (or such other person listed below) at least one (1) business day before the Scheduled Closing Date: (a) the Disclosure Materials and original Leases; (b) all available plans and specifications for the improvements on the Real Property; (c) to the extent the same are in Seller's possession or control, the original Permits, except to the extent the same are required to be and are affixed at the Property; " (d) to the extent the same are in Seller's possession, original copies of all guaranties and warranties of workmanship and/or materials respecting the Property arising after any work performed at the Property; (e) true and complete copies of the Property Records in Seller's possession or control; (f) to the extent not previously delivered to the Receiver, possession of the Property; and (g) to the extent required by the Receiver, a letter of direction/authorization ("Receiver Direction Letter") in favor of the Receiver, executed by Seller, authorizing the Receiver to deliver the Tenant Deposits. and all Revenues received by the Receiver to Lender or Lender's Designee. 28571622.10051403 1354P 063 12 . ._r Promptly after the Escrow Termination Date, Lender shall return. or cause Lender's Designee to return, any of the above-referenced items delivered to Lender or Lender's Designee in accordance with the terms of this Section 6,1. 6.2 Actions of Title Comoanv. Subject to the fulfillment of the terms and conditions set forth herein, on the Scheduled Closing Date, Title Company shall take the following actions in the order indicated below: 6.2.1 Immediately record the Deed in the Official Records and obtain and deliver to Lender a conformed copy thereof (the recording date of the Deed shall be referred to herein as the "Closing Date"); 6.2.2 Deliver the remaining Closing Documents to Lender or Lender's Designee, as directed by Lender; 6.2.3 Deliver the Receiver Direction Letter to the Receiver; 6.2.4 Issue and deliver the Owner's Policy to Lender, as soon as reasonably possible. 6.3 Third Parties. It is expressly understood and agreed that Lender is not assuming any of the obligations or liabilities incurred by Seller in the use. operation, service or maintenance of the Property, unless expressly stated in this Agreement. Seller acknowledges and agrees that the acceptance by Lender of the Deed pursuant to the terms of this Agreement and the assignment to Lender of various contracts and agreements pertaining to the Property shall not create any obligations on the part of lender to third parties which have or may have claims of any kind whatsoever against Seller with respect to the Property, and that Lender does not assume. or agree to discharge, any liabilities pertaining to the Property which occurred prior to the Closing Date except as expressly stated herein. No person not a party to this Agreement shall have any "third party beneficiary" or other rights hereunder other than lender's Designee. 6.4 Closina Costs. At least one (1) business day before the Scheduled Closing Date, Sell~r shall deliver to Es~rowp(lymentsin,th~ a~ITl~)Unt of the total costs of: ((l) any doculllentary transfer tax and/or conve.yance fee with respect totl:1~ pe~d, {b} the cost of recording 'the Deed.:'(c) any 'escrow fees or charges incurr~9, i.n. ~9nrwct,onwitt1 this -trc:\f1saction, and {d} the cost ,()fthe. Owner's . Policy. Seller shall.alsodeliver'to Escrow. p~y~e.. msinthe amount of the total costs of alLot her costs and expenses " ,,'~ , ~,:-'" ' , ' .. _ . -, . ~. -_'i, .', ; ~ -,'_ :- _ _", " '. '. _,' "'.. .'.::' ,', __,'; . '. ':; ., .', " ,-- , -, incurr~d~yLE~i:ic.l(;)r. iri.qluding. rea.~of1~ble attorneys'fees,. jIJ9onn..e.!;tioJ:1, ,withJhe.,preparatio/l. and.,.;,...., negotiatio!l<?L(;iJJ,9g2!'!mrNftti9nf2~!.,(l.ng.U1e..;gQn~,!lm(1:l91i9fl.()f,t,l;1,~t,!r~.!J~Y9!!9Q~S;RO!~mgll:l.tE:lc.l.PY .this Agfe.~m@Qt!..(pr8yi.8~~~~Qi(ii:Y~J;~Jh~r~@.ti.~'2Q~!~';~i'j'~'.expenses refer-red to in this sentence shall not . exceed ;seventY~Five'Th'ousand Dollarsd ($75,OOO)). IP 6.4.1 . Tenant Deoosits and Prorations. At least one (1), ~usiness day'bef?r~ the Scheduled,<?los,i~~. 9~~El,.~~n~\".~MIL~2gg~it,QE ~Cl':lS~.!()REl,.~ep9$ItE3,c1ir-, S~9{9\f,{{t9~!r~e~rlt:il1,;,. . SeUerspossesslori or control} 'an am6untegual'to (lIlTenCln.f[)~pos.lt~,',~€l1lE:lL~9~Q9W!ec:Igesr and agrees that, . i~ con n ectiOlt with the Closingcoritemplafe'd-by - this Agreement. Seller has no right to any prorated amounts of ahy Revenues. 6.4.2. . All undisburs,ed REl,venues,collected. S.4P.~~gq(;)ntJQm~fPpointmel1!.of the Receiver, and all Revenues colleCted.. subSequentto'th"E{cioSIri'g' t5ate~Kclf(b'itfh~' prop';rtV(Wtfie'~~" . Lender: 6.4.3 Seller shall not be permitted after the Closing Date to institute proceedings against any party to collect any past due Revenues for periods prior to the Closing Date. 28571622,10051403 1354P 063 13 ~ 'if" 9.4,4 No credit shall be given either party for accrued and unpaid Revenues or any other non-current sums due until said sums are paid. 6.4.5 In the event that subsequent to the Closing Date Lender receives checks or other instruments or items payable to Seller with respect to the Property, Seller hereby authorizes Lender to endorse Seller's name thereon without recourse and apply the proceeds in accordance with the foregoing; similarly, any checks or other payment items received by Seller subsequent to the Closing Date with respect to the Property shall be endorsed by Seller without recourse and promptly forwarded to Lender. If Seller has made any deposit with any utility company or local authority in connection with services to be provided to the Property. such deposits shall, become the property of Lender. 7. Covenant Not to Sue: Seller's Right of First Refusal: Release of Lender. 7.1 Lender's Covenant Not to Sue. If and only if the Closing occurs and so long as neither Seller nor Guarantors brings suit against Lender or Lender's Designee. then, upon the Closing Date, Lender shall be deemed to have covenanted and agreed not to bring, file or commence any other action, suit, claim or cause of action against Seller or Guarantors with respe.ct to any obligation under the Loan Documents; provided, however. that the foregoing covenant and agreement shall be void from its inception, in the event: (a) Seller or Guarantors shall take any act or make any claim of rescission of this Agreement or make any other claim which is inconsistent with this Agreement; (b) a court of competent jurisdiction determines that (or any claim is made by Seller, or any trustee or receiver for Seller or Seller in its capacity as a debtor-in- possession, that) the transfer of the Property to Lender or Lender's Designee or the receipt of any funds by any party hereunder constitutes a preference ora fraudulent conveyance, or otherwise sets aside or holds ineffective such transfer of the Property or such funds; or (c) Seller or Guarantors have made to Lender any misstatement of any material fact relating to the Property, or failed to deliver to Lender any written materials now or at any time in Seller's or Guarantors' possession or control or of which Seller has knowledge which contain information that would have a material adverse impact on Lender's ability (or the ability of Lender's Designee) to use and operate the Property as it is currently being used and operated or the marketability of the Property, or any written materials delivered to Lender (including, without limitation, in connection with the origination of the Loan) shall fail to be true, accurate and complete in all material respects. " The foregoing covenant and agreement shall not defeat, limit or otherwise affect any right of Lender to commence or compete foreclosure proceedings under the Security Instrument, to bring actions to enforce this Agreement, including, without limitation, a breach of the representations and warranties contained herein, or the Closing Documents, or the Environmental Indemnity or to bring actions against any other parties. 7.2 Seller's Right of First Refusal. Subject to Lender's or Lender's Designee's acquisition of fee title to the Property in accordance with the terms of this Agreement, Lender grants to Seller a right of first refusal to purchase all or a portion of the Property on the terms and conditions set forth in this Section 7.2. 7.2.1 Third-Partv Offers. In the event the Deed is recorded and Lender or Lender's Designee (in either case, the "Fee Holder") acquires fee title to the Property in accordance with 28571622,10051403 1354P 063 14 Ii t {~~ the terms of this Agreement, subject to the terms of this Section 7.2, if, as, and when the Fee Holder shall receive a bona fide written offer from an unrelated third party to purchase the Property (the "Offered Property"), the Fee Holder, prior to accepting such bona fide written offer, shall promptly notify Seller of such offer ("Offer Notice"), and enclose with such Offer Notice a true, complete, and accurate copy of such offer. Subject to the terms of this Section 7.2, Seller shall have the right to unconditionally accept the terms of such offer and purchase the Offered Property in accordance with such terms by notifying the Fee Holder of such acceptance in writing ("Acceptance Notice") no later than 5:00 p.m. Eastern Standard Time on the third (3rd) day after Seller's receipt of the Offer Notice (the "Acceptance Date"). If Seller fails to deliver an Acceptance Notice by the Acceptance Date, Seller shall be deemed to have waived its right of first refusal with respect to that particular Offer Notice, and the Fee Holder shall have the right to sell the Offered Property to the third-party purchaser identified in the Offer Notice on the same terms and conditions as set forth in the Offer Notice. In the event the closing of the transaction for the purchase of the Offered Property by the third-party purchaser contemplated by the particular Offer Notice is not consummated within ninety (gO) days of the Acceptance Date, then, subject to the limitations set forth below, the Fee Holder shall not have the right to consummate the transaction with the third-party purchaser identified in such Offer Notice and Seller's rights hereunder shall be reinstated as to any subsequent offer to the Fee Holder. If, however, Seller elects to exercise the right of first refusal on the terms set forth in the Offer Notice, then Seller shall deliver to the Fee Holder by wire transfer of cash or current funds, on or before 5:00 p.m. Eastern Standard Time on the second (2nd) day after the Acceptance Date, a non-refundable acceptance confirmation deposit in an amount equal to Three Hundred Thousand Dollars ($300,000) (the "Acceptance Deposit"), which Acceptance Deposit shall be applicable to the purchase price set forth in the Offer Notice. If Seller fails to close the transaction contemplated by the Offer Notice within sixty (60) days after the Acceptance Date, then Seller's right of first refusal hereunder shall immediately expire. 7.2.2 Limitation of Rights. Notwithstanding any statement to the contrary contained in this Agreement, the right of first refusal granted to Seller in this Section 7 with respect to any Offered Property or any Offer Notice shall terminate and be of no further force or effect from and after March 26, 2004 (the 'ROFR Termination Date"), 7.2.3 Exclusions. The rights of Seller under this Section 7 are limited to notification and negotiation in anticipation of the Fee Holder offering the Offered Property for purchase by unrelated third parties. There shall be no notification or negotiation rights of Seller in any other case whatsoever, including but not limited to cases of (a) a conveyance by the Fee Holder to an affiliated party and any conveyance in connection with a merger or other corporate transaction, (b) a conveyance by the Fee Holder to a lender who then holds a lien on any or all of the Property, (c) a conveyance in connection with a foreclosure sale, or (d) a conveyance or taking in connection with a condemnation, No transfer of any or all of the ownership interests in the Fee Holder (for example, membership interests), a merger or other corporate reorganization shall be deemed a conveyance or sale of the Property or any portion thereof. IP 7.2.4 Personal Nature of Riahts. The rights granted pursuant to this Section 7 are personal to the originally named Seller. 7.2.5 Sale Terms. Once the Fee Holder has delivered a particular Offer Notice to Seller of an intended offering of any Offered Property and Seller's rights with respect to such offering have ended (from failure to deliver an Acceptance Notice within three (3) days, from failure to deliver the Acceptance Deposit within two (2) days, or from failure to consummate a sale on the terms set forth in the Offer Notice within sixty (60) days after the Acceptance Date, all as set forth in this Section Z), the Fee Holder shall be free to sell such Offered Property to the third-party purchaser identified in the Offer Notice upon the same terms and conditions as set forth in the Offer Notice without challenge by Seller as to any defect in the notice or negotiations. Notwithstanding any statement contained in this Agreement to the contrary, in the event Seller has not exercised its right of first refusal on or before the ROFR Termination Date, the Fee Holder shall be free to market such Offered Property and to sell the same without any challenge by Seller whatsoever. It is intended that the Fee Holder and any third party whomsoever shall be conclusively entitled to rely upon the lapse of the rights granted under this Section 7 and that Seller 28571622.10051403 1354P 063 15 d If', shall have no claim or right with respect to the purchase of such Offered Property, and the Fee Holder shall have the right to market, and sell such Offered Property on any terms desired, from time to time, after (i) complying with the notice and negotiation requirements of Section 7, or (ii) the ROFR Termination Date. 7.2.6 Seller Default. Seller shall not be entitled to notification or to exercise its rights hereunder if a default by Seller under this Agreement exists which Seller has been notified of and has failed to cure. 7.2.7 Fee Holder's Obliaations, To the extent the Fee Holder is Lender's Designee, Lender shall cause Lender's Designee to comply with all of the obligations of the Fee Holder as set forth in this Section 7.2, 7.3 Release of Lender. Seller and Guarantors, each for itself and all of its respective heirs, successors and assigns, as of the Effective Date and the Closing Date, hereby absolutely and irrevocably waives. releases, and forever discharges Lender and Lender's Designee and their officers, shareholders, directors, agents, servants, contractors, employees. parent and subsidiary corporations and predecessors-in-interest (collectively the "Lender Released Parties") from any and all claims, rights, demands, actions, suits, causes of actions, damages, counterclaims, defenses, losses, costs, obligations, liabilities and expenses of every kind or nature, known or unknown, suspected or unsuspected, fixed or contingent, foreseen or unforeseen, past, present or future (collectively, the "Claims") arising out of or relating directly or indirectly to any circumstances or state of facts pertaining to the Loan, the Loan Documents, the Environmental hdemnity or the Property, including claims related to the actions of Lender or its predecessors in administering the Loan or negotiating the Loan Documents or the Environmental Indemnity and claims of lender liability, fraud, duress, illegality, usury, waiver. bad faith, interference in Seller's business, or any nonperformance of any agreement or obligation related thereto, or any statements, representations, acts or omissions, intentional, willful, negligent or innocent, by any of the Lender Released Parties in any way connected with, relating to or affecting, directly or indirectly, the Loan, the Loan Documents, the Environmental Indemnity or the Property; provided, however, that the foregoing shall not constitute a release of any of Lender's obligations under this Agreement. Seller expressly understands and agrees that the release contained in this Section fully and finally releases and forever resolves the matters released and discharged in this Section, including those which may be unknown, unanticipated and/or unsuspected. Seller acknowledges that it is aware that it or its agents or employees may hereafter discover facts in addition to or different from those which it now knows or believes to exist with respect to matters released in this Section, but that it is its intention hereby fully, finally and forever to release all of the claims, disputes and differences known or unknown, suspected or unsuspected, which now exist, may exist or heretofore have existed against the Lender Released Parties with respect to the Loan, the Loan Documents, the Environmental Indemnity or the Property, except as otherwise expressly provided herein. In furtherance of this intention, as of the Effective Date, Seller expressly waives any and all rights conferred upon it by applicable law (expressly including its right of redemption), and expressly consents that this release shall be given full force and effect according to all of its express terms and provisions. .. Seller and Guarantors understand and acknowledge the significance and consequences of such release and each has been advised by independent legal counsel concerning the same. 8, Notices. All notices and communications to any party hereunder shall be in writing and shall be deemed properly given if delivered personally or sent by registered or certified mail, postage prepaid, or by Federal Express or similar generally recognized overnight carrier regularly providing proof of delivery, to the following addresses or at such other address as such party may specify from time to time by notice to the other parties: 28571622,10051403 1354P 063 16 " [}~ ~ To Lender: Fremont Investment & Loan 175 N. Riverview Drive Anaheim, California 92808 Attn: Commercial Real Estate Department Loan No.: 950113959 With a copy to: Mayer, Brown, Rowe & Maw 350 South Grand Avenue 25th Floor Los Angeles, California 90071 Attn: Alec G. Nedelman, Esq, To Seller: 6200 OAK TREE BLVD.. LLC 24650 Center Ridge Road, Suite 100 Westlake, Ohio 44145 Attention: Richard E. Batt To Guarantors: 6200 OAK TREE BLVD., LLC LEWIS E. WALLNER, II 24650 Center Ridge Road, Suite 100 Westlake, Ohio 44145 Attention: Lewis E. Wallner, 1\ For both Seller and Guarantors, with a copy to: Collins & Scanlon LLP 3300 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2294 Attn: Thomas J. Scanlon, Esq. Any notice so given by mail shall be deemed to have been given as of the date of delivery (whether accepted or refused) established by U.S. Post Office return receipt or the overnight carrier's proof of delivery, as the case may be. Any such notice not so given shall be deemed given upon receipt of the same by the party to whom the same is to be given. All notices to Lender shall be prominently marked ~Loan No, 950113959". 9. Miscellaneous. . 9.1 Entire Aareement. This Agreement and the Closing Documents supersede any prior agreement, oral or written, and contain the entire agreement among Lender, Seller and Guarantors with respect to the subject matter hereof. No subsequent agreement, representation or promise made by or to any party hereto shall be of any effect unless made in writing by the party to be bound thereby. Any amendment to this Agreement shall be in writing signed by all parties hereto. Neither this Agreement nor any of the Closing Documents shall create any rights in any third party, other than Lender's Designee, and may be amended by the parties hereto as set forth herein without liability to any third party. . 9.2 Further Assurances. Each party hereto shall, whenever and as often as it shall be requested to do so by another party hereto, cause to be executed, acknowledged or delivered any and all such further instruments and documents as may be necessary or proper, in the reasonable opinion of the requesting party, in order to carry out the intent and purpose of this Agreement. 9.3 Construction. This Agreement and the Closing Documents have been negotiated at arm's length by the parties hereto and their respective attorneys and shall not be strictly construed against either party. This Agreement and the Closing Documents shall be construed as a whole and in 28571622,10 0514031354P 063 17 .' 4. l. t.t' W accordance with their fair meaning. Captions and organizations are for convenience only and shall not be used in interpreting this Agreement or the Closing Documents. Whenever the words "including", "include. or "includes. are used in this Agreement or the Closing Documents, they shall be interpreted in a non-exclusive manner as though the words .without limitation" immediately followed the same. Masculine, feminine, or neuter gender and the singular and the plural number, shall each be considered to include the other whenever the context so requires. If any party consists of more than one person, each such person shall be jointly and severally liable, 9.4 No Waiver. The waiver by any party of the performance of any covenant, condition or promise shall not invalidate this Agreement, nor shall it be construed a waiver by any other party or of any other covenant, condition or promise. The waiver by any party of the time for performing any act shall not be considered a waiver of the time for performing any other act or an identical act required to be performed at a later time. No waiver shall be enforceable against any party unless signed by such party in writing. 9.5 Governinq Law. This Agreement and the Closing Documents shall be construed in accordance with and governed by the laws of the State of Ohio (without taking into account conflicts of law). 9.6 Counteroarts. This Agreement and the Closing Documents may be executed in any number of counterparts so long as each signatory hereto or thereto executes at least one such counterpart, Each such counterpart shall constitute one original but all such counterparts taken together shall constitute one and the same instrument. 9.7 Controversy. In the event of any controversy, claim or dispute between the parties hereto affecting or relating to the purposes or subject matter of this Agreement or the Closing Documents, the prevailing party or parties shall be entitled to recover from the nonprevailing party or parties all of its expenses, including, but not by way of limitation, attorneys' fees and costs. 9.8 Indemnification. Seller shall indemnify, defend, protect, and hold harmless Lender and the Lender Released Parties, and each of them, from and against any and all Released Claims arising directly or indirectly from (a) any inaccuracy in any representation or warranty made by Seller in this Agreement or any of the Closing Documents, (b) the failure of Seller to observe or perform any agreement, covenant or provision of this Agreement or the Closing Documents, (c) any breach of or default by Seller under any Contract or Lease, and (d) any acts or events with respect to the Property which occur on or prior to the Closing Date. 9.9 Fraudulent Convevances. Notwithstanding anything to the contrary in this Agreement, if and to the e<tent that any transfer of assets agreed upon herein between Seller and Lender " is later determined to have been a voidable preferential transfer, a fraudulent transfer or a fraudulent conveyance, under either state or federal law, and as a result thereof either (a) additional consideration for the transfer and any additional amounts of fees, expenses, interest or other affirmative damages (the .Additional Payments") become due and owing to Seller from Lender, or (b) the transfer must be undone and all or a portion of the assets must be returned to Seller for any reason whatsoever, then notwithstanding anything to the contrary in Section 7.1 hereof (which Section shall, in such eventuality, be of no further force or effect): (i) any and all rights and/or obligations owed to Lender and any and all remedies available to Lender under the terms of the Loan Documents, the Environmental Indemnity or in law or equity against Seller and/or the Property shall be automatically revived and reinstated; and (ii) Lender shall be entitled to file a proof of claim against the estate to recover either: (x) the entire then outstanding principal amount of the Loan, plus any accrued but unpaid interest thereon and other costs, expenses, additional amounts and other items which Seller is obligated to pay (or repay, as the case may be) to Lender pursuant to the Loan Documents, the Environmental Indemnity or this Agreement, and the amount of the Additional Payments, or (y) if the transfer has been undone and the assets returned in whole or in part to Seller, the value of the consideration paid to or received by Seller for the initial asset transfer, plus in each case any deferred interest from the date of the disgorgement to the date of distribution to Lender in any bankruptcy, insolvency, receivership or fraudulent conveyance or fraudulent 28571622,10051403 1354P 063 18 .~ l;'< t,'~ f transfer proceeding, and any costs and expenses due and owing. The parties acknowledge and agree that the provisions in this Section 9,9 shall be independent of the indemnification obligations contained in this Agreement. 9.10 References. References in this Agreement to paragraphs, Exhibits or Schedules shall refer to paragraphs, exhibits and schedules to this Agreement unless the context requires otherwise. All exhibits and schedules are hereby incorporated into this Agreement in their entirety by this reference. 9.11 No Meroer. It is the intent of Lender and Seller that (a) the interests of Seller conveyed to Lender hereunder and the interests of Lender existing under the Security Instrument shall not merge upon or after Closing, (b) the Security Instrument and the Note shall continue in full force and effect and the Security Instrument shall remain as a first priority lien against the Real Property notwithstanding the transfer of the Real Property to Lender and Lender's covenant not to sue Seller pursuant to Section 7, and (c) Lender shall retain the right to foreclose upon the Real Property, whether judicially or non-judicially pursuant to its power of sale under the Security Instrument, after the Closing. 9.12 Relief from Stav. As additional consideration for Lender's execution of this Agreement, Seller agrees that: (a) in the event of a bankruptcy filing by or against it, it shall not reject this Agreement, nor contest any claim or assertion by Lender that this Agreement is binding between the parties, and that valuable consideration has been received by Seller for same: (b) Lender shall receive immediate relief from the automatic stay provisions of the United States Bankruptcy Code following any bankruptcy petition which Seller may file or which may be filed against Seller and that Seller shall in no event contest a motion to lift the automatic stay filed by Lender; and (c) any contrary action taken by Seller with respect to the matters set forth above shall be deemed to be in bad faith and are agreed to constitute violations of Federal Rules of Civil Procedure 11 and Bankruptcy Rule 9011. 9,13 Confidentiality, Each party hereto shall keep the terms of this Agreement strictly confidential and shall not disclose or permit its employees or agents to disclose the terms of this Agreement (except for reasonably necessary disclosures to its attorneys, accountants and representatives and disclosures necessary by law). 9.14 Time of the Essence. Time is of the essence in this Agreement. 9.15 Severabilitv. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. IP 9,16 Effect on Loan Documents, Except for the release of Wallner under the Guaranties as set forth in Section 4.6 hereof, neither the provisions of, nor any performance under, this Agreement shall amend, modify, supplement, extend, delay, renew, terminate, waive, release or otherwise limit or prejudice (i) Lender's rights and remedies, or (ii) Seller's obligations under the Loan Documents (including Lender's right to receive full payment as well as late charges, delinquent interest and all other charges provided for in the Loan Documents) and the Environmental Indemnity, subject. however, to Section 7.1 in the event the Closing occurs. ,,e.!~t,~,~~~greeme{t:llig~.;i,[~~:~~~n~i~~l~~l~~~~(~i~;~~i4i~i~~f~~~;~~~ili~i~~'~Dj~i~:c~;f~~~e~ent ':enforce~",H~~~"UJJ!11~b9ree.Il'le.'1t,,!he. ~e..rm ~~tl()m~.ys,~,f~~~( .or . "at:! .. . ... .'. . es and expenses of counsel to the parties hereto, which rrt~Y"iriBjd~ .... ....,....: ..'re", ... .. ~al1dbt'He'f'g5<pehses;'~iHreigHt'dla(ges,and fees'billecffor lawclerks;paralegals,.iibrarians an 0 ers not-admittea to..the'ba.rJ)l.ftR~!f9D'DJng;senr!qe.~,unge.r.Jhe ~\jp'eKti$id,!,'ofan..a~oi~eY:lne1efln!;""a1tOTn~~:~!!~~~1~%i.~~~!etp~X~'iJ~~~,!~~9:~9~t~~}~D~iJi,~@)'::';.~"...~. Include, WIthout limitation, all suchfees'!:lf\qe.~\':)~ns-~s.:'!Oc;un:ed.Wlth r.esPe.ctto !:lP8eal~'l:lrl:>!trC1t19ns, bankruptcy proceedings and any postiuligrrleiifprdteedings!o'colle'et any'Judgment: andwh'etheror not 28571622,10051403 1354P 063 19 .~ ;' I ~,. ~ Ill- t ~ any a<::tion or proceeding is brought with respect to the matter for which said fees and expenses were iricoH.~(t The provisions allowing for the recovery of post-judgment fees, costs and expenses are separate and several and shall survive the merger of this Agreement into any judgment. 9.18 Successors and Assi9ns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. The rights and obligations of Seller and Guarantors hereunder may not be assigned, without the prior written consent of Lender, which may be withheld in Lender's sole discretion, and any purported assignment without Lender's prior written consent shall be null and void 2!2 initio. " 28571622,10 0514031354P 063 20 I ."\ J: i .~. 1 .. IN WITNESS WHEREOF, Seller, Guarantors and Lender have caused this Agreement to be executed as of the date first above written. LENDER: FREMONT INVESTMENT & LOAN, a California industrial bank 8y. 71- / 5: SELLER: 6200 OAK TREE BLVD., LLC, an Ohio limited liability company c- B~Z<- It~ . - -~-..--- ---- --- -- --~------------- GUARANTORS: 6200 OAK TREE BLVD., LLC, an Ohio limited liability cO$6pa - . L'- ^ B - -- ---- ---/r/---- ---- Its ----rv.t<2J4~-~Z---- --~. - - ---- ~--t:-~ - 'U4 ~ E. WAL.II#.II. an ;nd;v;d " AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN, AS TO PROVISIONS RELATING TO TITLE COMPANY: LAWYERS TITLE INSURANCE CORPORATION By: Its Authorized Signatory 28571622.9 0512031638P 063 S-1 f ,,' j~. ;fe'l" Ji".. t .. ."" IN WITNESS WHEREOF, Seller, Guarantors and lender have caused this Agreement to be executed as of the date first above written. LENDER: By: SELLER: 6200 OAK TREE BLVD., LLC, an Ohio limited liability company By________________________________ Its ________________________________ GUARANTORS: 6200 OAK TREE BLVD., LLC, an Ohio limited liability company By________________________________ Its ____________________________ LEWIS E. WALLNER, II, an individual IP AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN, AS TO PROVISIONS RELATING TO TITLE COMPANY: INSURANCE CORPORATION By: 28571622.10 051403 1354P 063 S-1 f{ ~ ~. <{ ,/ ,,-' . i ( (, t, . '- LIST OF EXHIBITS AND SCHEDULES Exhibits A: Legal Description of Real Estate B: Form of Limited Warranty Oeed C: Form of Bill of Sale D: Form of General Assignment E: Assignment of Leases F: Form of Estoppel Certificate G: Form of FIRPTA Affidavit H: Form of Notice to Holder of Utility Deposit I: Form of Transfer Notification Letter J: Form of Release of Wallner Schedules 1: Property Claims 2: Fixtures and Tangible Personal Property 3: Permits 4: Property Reports 5: Title Policy Requirements , 28571622.10051403 1354P 063 .t. . ,,, " "')'"' t ~ t , ). 4- EXHIBIT A LEGAL DESCRIPTION That certain real property located in the City of Independence, County of Cuyahoga, State of Ohio. having a street address of 6200 Oak Tree Boulevard, more particularly described as follows: Situated in the City of Independence, County of Cuyahoga, and State of Ohio and known as being Parcel No.5 in the plat of Lot-Split and Sanitary Sewer Easement for B.S.G. Properties, Inc. and Centerior Properties Company of part of Original Independence Township Lot No. 23, Tract 2, West of the Cuyahoga River, as shown by the recorded Plat in Volume 286 of Maps, Page 45 of Cuyahoga County Records, be the same more or less, and being more particularly bounded and described as follows: Beginning at an iron pin at the southwesterly corner of said Original Lot No. 23; Thence North 00 04'37" East along the westerly line of said Original Lot No. 23, being also the corporation line common to the City of Independence and the City of Seven Hills, a distance of 757.29 feet to the southwesterly corner of Land Conveyed to Duke Realty, LTD. Volume 97-08794, Page 2 thru 4 of Cuyahoga County Records at which point a 5/8" iron pin set with Cap (Ciuni & Lynn #7394). Thence North 8947'14" East along the southerly line of said Land, a distance of 735.66 feet to the westerly line of Oak Tree Boulevard, 100 feet wide, dedicated on the plat recorded in Volume 226 of Maps, pp 99-100 of Cuyahoga County Records, and extended. Thence South 00 12' 46" East along said westerly line of Oak Tree Boulevard, a distance of 756.46 feet to the southerly line of Original Lot No. 23, at which point 5/8" iron pin was set with cap (Ciuni & Lynn #7394). Thence South 89' 43'23" West along said southerly lot line, a distance of 739.49 feet to the Principal Place of Beginning and containing 12.8156 acres of land according to a survey made by Ciuni & Lynn Associates dated June 16, 2000. " 28571622:10051403 1354P 063 A-1 rn >< :::r 2: ... N 1st count: The. defendant .'WiS.S sentenced, to:,.Indeterminate ,.' ''\;erm at the"'Yout1l. Recept-i'on"ana"cc)rre'c'Eion"~'C:enter~' ... ,.. Yardvi11e. New Jersey SUSPENDED. Probation 3.years. Fined $400.00 atter.ms ~rough Probation _ Probation to be transferred. 2nd count: On a Motion by the State the count ~as DISMISSED. COUNl Y COURT OF BERGE1'J:COUNTY LA W DIVISION (CRIMINAL) . ....... ~~p.~~~.~~..~ ~;: .}..~?~..~........ 19.... ~EC~lv::~ 1'nr:: STAT!.': OF NEW JEHSEi'. ;)EP I D "32 AM '(~ . II' . ' .~ .0 C'l/ ~._.. ...-.:::z....( /" ./..~._~ . J UDG1tfE.Nr VIOLATION. N. J. S. 24:21-19A (1) 24:21-20A (1) .......... .~.('~~<, '~"" ?:rf.E:~.~~~.~~. ~~.~~~:. ~.~:~~.. DcIendant. pass. W/INT _ TO DIS . C.D.S. - lati' ct '.. ..'. ~}. pass. OleD.S. - 2nd ct.. . .'.. 5-1724:"'73 INDICT~,II:;Nl' FOR.. . . . . " .. .. . . ... . . ..... . . . .. . . " .. ., .. ........ . .., .:. ~O" . .. . . . . .... . .,., . . . . ,. . ... . September 1973 .' . First l'ER?rI ......................................................,. 51 A TED SESSION ..,..................... FILED: ................. ~:::~~.~ . .~~:. . ~~?~ . .. ........,...................,....,........,........... :\ IllLUG1'i.ED: .......... ~~~':1~.~ . ~.... .~~?~... . .. ...... .. ... . . . . .. . ..-:-:'.. ... ..... ...... . ... .. ... . .... . PI.EA: ...,.............. ~~:::. ~.~.I:'!;l..~~. .~~~. ........ .......... .... .... ........ ...... .... ........... ImTRACTEO: .......... ~~Y. ,2~:.. ~.~?~.. .~~~~. .;~.~. .~?~~. ?r:~Y:........,..................... 'l'l{IAL: .............................,...........................................................,.....,.. VERDICT: .... ................................ ...... ...,...,............... '" ............... .............., SENTENCE: Credit days served: 0 ~SON Fon iMPOSITION OF' SENn:l\'CE (~uJe 3:7.10(L): Defendant attempted to adjust Good family background. College Student 1)1~TEIIML"'A.l.ION OI~ S.t::NTI';~CI~ (Hulc 3:7.]O(c): Thj~ d('r"lIrJ..mt WII~ nL.idlCl' CO""'l:llHl nor ~enLCllccd \u:Hlcr th" Ira HON. MA: ",,,'1 I.... ._._, r".. c..., I:A -..J .~ .. 0:" .... ~~.~. .":t' . . .~:~!~. .:. .{l . ~. '..\J . .~ ii-! . .,:t . .~. ...-.;:.~ , '.ll '.~ U:' :~ ;~1 "I; .~~ . .:.; :; ,. ",of. 'i "''':';.-,: ._...:~t~"i':\l~j~'I~~~:cti1.'.i1 E11i ;:'r; ,,'~~.."'" l{ II' .... :..tr'..t.. :....~I.~!~.....ltrl...'~.:.r.'!.' , to.. '."'t:I"' .,..l'~J'I";''' irr.~iI' . '3~,~:.'. .' 't!2~.ji) ~~irrl'f;)!i~;;:(..,. " ~:' .." ~;',Ci.:~:",'.II' .:~~~-:~L1:"~'::.. ..~. '"!!A''' 1 \,'F~~" . -'1j" .r~ 1:;.. .t<. ';'l . . -,I<"c . ~~;o;'. .... -~ ~_ '._ l e.;~>> ~~;E~~~im~~~~~~~~ ~.tl~;~~t~~; ;jf;~~:;~I~~'~;~~",.. :,,~j~~4~~~iit~;.:~~'i!:t~~::.;;~'~~~~' ~ t ),7'." ~ {i '~ . - .:' ~\;~~~fi ~.l.4-:~~~''4~f~J;,J('i1\e;J'Ji'';':fl,fj:,,'!;\.'I''''~':.!;.'''J''f..$'': ~~'\'?"~:!'?l)l,'.v,k:l..,',,,"; ;""'..":}' ,'':: "4?b.~C .A~;..~.r., ' :..:~~"4 ~f~:t-'~~',,>~ I,ft! ~',l1~":'*W;ff'(~~lli ~.,..ot~t."t:1'-t\.i\.;)-~..'tt. I!wi! "~'~~~.~/F.:t::)~t~t'l'lL~^o6f,;"~" ) !:~.JllV~~.I',<< .~i~',' If. ..r.;t~''''''~J~ ..."....\SI"llt~II~.. "I' ''''.'-;, ".~ ,:.;{'"..-..#...J;,.H.....~:.1.1.,:....d! Il<'.~' ."" J1':;: 'n" , ,....... "-".,". ..~...~_-_..~i:_.~--- ~~"'~-_..._..'...-7" .... '. ..tl '.":~.'.~;~'. . ,< .~. ", :~~.,' ~:. .~:.i~~: ...... .'. /".":;;'h.l . ." -J}j~~? P.O. #1529-73 '.I..::::~~ ~~~ 12/12/73 l'<:~i SUPERIOR COURT OF. NEW JERSEY' I,;.;~~~~ BERGEN COUNTY- LAW DIVISION ~~~j SEPrEMBER TERM A~ . D. 1973 ...,:~~ FIRST STATED .SESSION ':':!.\:1-t .,:{.~~'i~ . :/.... .~ .. .~f-4i~i , 'c;:;11 : ".:-,;'j I .._~_ ! .'::~f /. ~t.;; , . :,:;~~ I uf'" I .~ I.:~~ ".::rJ. I ':::.jl; Il . '~:i i j;; :.~~ j. THE STATE OF NEW JERSEY vs. Indictment No.JI7:14~7~ MARK ALFRED SIFFIN Defendant The Grand Jurors of the State or New Jersey~ ;Cor the County of Bergen, upon their oaths present as a FIRST COUNT that MARK ALFRED SIFFIN, on or about the i 20th day of August, 1973j I I I in the Borough of Lodi, County of Bergen aforesaid, and within the jurisdiction of this Court, unlawfully did posseas with intent to distrlbute, a controlled dangerous 5ub6tance~ to wit, HEROIN, contrary to the provisions or N.J~8. 24:21-19a(1), and ae;<l1n~t the peace of this State, the government and dignity of the same, SECOND COUNT And the Grand Jurors aforesaid, upon their oaths afore- 5aid~ do further PRESENT that MARK ALFRED SIFFIN, on the date~ at the place and within the jurisdiction set forth in the First Coun~ herein,. did have and possess a control~ed dangerous sub- ~tance~ to wit, HEROIN, contrary to the provisions of N. J. S. ;~\C . .. "," ..' . ......, . . . ..~; 1:':t'~?:.':..~..l.;":'I'1', -... .i"..~"t':.'. -.-. . .~f""''':~7IrttC'~._. ", ....", "Y'.(.'l ""r,,:..,'..~.l'." :".l.; ~.f,... !,'~'J4a' ,.. \.". .... .', ..~'~.~iI:r.l. . or .O::'j', '..-, '.....d ..t: .~~f . ..,' ~.,:l. ..:.:}~ :...l~ .' ':1. . ~.~.~~!~~.~(_:.~.:.,.'.:.'.. ..~..:~~-:-., '.~.-. .~. ..~:~..:.'..-:.:.::~. ....: :," ':'~;1 ~:. ~.~.~ '.. ..~. ~::c.~'~ \:.r. :';,.' ,", . 1 '. - "" 'I . ,., ..' ,,"";(:':-:l-.:L' .," ...;.....:~~: :':;\~~" -' .,- , ' ,~~r;~ _. ':'":;;;,{ . :':;'~ /. ,:.:~~ ',"~'J! :'J~l I '~t I' ~;~':u'~ -. . ALFRED t. GENTON, ACTING PROSECUTO~)~' " "ffil /IAlj , .~;:~ I:::~l~ j '.:j: i. '::U , ....'f, /1. '.':;..%1 .iJi , "'!. /' :0:;';' "r' :1. . 'j ....... 24;21-20a(1), and against the peace of this state~ the govern- ment and dignity of the same. :i By: '~~'o~~ oreman ,"i ** TOTAL PAGE.04 ** . '~;. ~ .:~ .~tf . ;. ! .~ :~ . I:~ .1.' ..j, '.~ . .<~ ~~-.;: rn >< ::r c: ;:::;: w ~.. , .~ ~ /'''"'7 ~, /""'\ FILErY7\l -eLl AUG 24 1982 ROBER1 J. MUFfMAI~, Clerk ,.. u. S. DISTRICT COURT .- C:.:.NTRA~ .D.I~TRIGI Of ILLINOIS IN THE UNITED STATES DISTRICT COUR'r CENTRAL DISTRICT OF ILLINOIS DANVILLE DIVISION UNITED S~~ATES OF N-IERICA, Plaintiff, vs. ROBERT E. MILLER, ajkaj "Ram" HARK A. SIFFIN N. JERRY PAXTON, S'l'EPHEN S. PAX'l'ON, S'rEVEN A. LOCKE, RANDY FREDRICKSON, PEGGY PAXTON FREDRICKSON, MARJORIE MOROSE, ROBERT ZEI'i'LER, G. l'-lARK BARKER, ROBERT HARTHAN, WILL Ii'\.:"-l DZUIRKIE~tJICZ, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CRjl)- C<Oo<.../;> In Violation Of: Title 21, United States Code, Sections 841 (a) (1), 841 (0) (1) (B), 841 (b) (6) , and 846; Title 18, United States Code, Sections 1952 and 1503 and 2. I N DIe T MEN T THE G~~ND JURY CHARGES: COUNT 1 Beginning at least in 1976 and continuing to on or about the time of the filing of this indictment, in the Central District of Illinois and elsewhere, ROBER'r E. HILLER, ajkja "Ram", HARK A. SIFFIN, N. JERRY PAX'rON, STEPHEN S. PAXTON, STEVEN A. LOCKE~ RANDY FREDRICKSON, PEGGY PAX1'ON FREDRICKSON, i-1ARJORIE HOROSE, ROBERT ZEI'I'LER, G. HARK BARKER, ROBERT HAR'l'HAN, WILLIN~ DZUIRKIEWICZ '\ C\ 0-. (j) ,"'" (,,,/ (.""" {,..~_.l "def~ndants herein, wilfully and knowingly conspired with each other and with others both known and unknown to the Grand Jury to distri- bute more than 1,000 pounds of marijuana (a Schedule I non- na~cotic controlled substance), in violation of Title 21, United States Code, Sections 841 (a) (1) and 846. 2. As part of said conspiracy it was agreed that the defendants and co-conspirators would knowingly and intentionally distribute, and possess with intent to distribute, quantities of marijuana. 3. It was further part of said conspiracy that between the above dates, ROBERT E. MILLER, a/k/a "Ram", located in the Nashville- Bloomington area of Indiana, maintained a network of distrib~tors of marijuana in Indiana and the Central District of Illinois, and else- \vhere. 4. It was further part of said conspiracy that between the above dates ROBEHT E. MILLER, a/k/a "Ram", and ~IARK A. SIFFIN, main- tained liaison with persons known and unknown to the Grand Jury in Florida and elsewhere, who supplied them and persons within the network with thousands of pounds of marijuana. 5. It was further part of said conspiracy that between the above dates ROBERT E. HILLER, a/k/a "Ram", and HARK A. SIFFIN, tra- velled to Florida, and elsewhere for the purpose of arranging the receipt of thousands of pounds of marijuana and arranging payment therefore. 6. It was further part of said conspiracy that at least between 1976 through on.or about 1978, N. JERRY PAXTON and STEPHEN S. PAXTON, at Rural Route, Georgetown, Central District of Illinois, received and distributed marijuana as part of said network. 7. It was further part Df said conspiracy that from on or about 1979 through on or about the end of 1980, in the Central District of Illinois, N. JERRY PAXTON operated the network's Danville marijuana distribution point, and STEPHEN S. PAXTON, transported, warehoused, and distributed marijuana for N. JERRY PAXTON. 3. It was further part of said conspiracy that as of 1980 through on or about the filing of this indictment, ROBERT E. MILLER, a/ka/ "Ram", maintained at least two major points of distribution of marijuana: one, in Brown County, near Nashville, Indiana, operated by STEVEN A. LOCKE; and two, in Vermilion County, Danville, Central District of Illinois, operated by N. JERRY PAXTON, from which thousands of pounds of marijuana were distributed. 9. It was further part of said conspiracy that at least as of 1~80 through on or about the time of the filing of this indictment ROBER'l' E. MILLER, a/k/a "Ram", I>1ARK A. SIFFIN and N. JERRY PAX'EON travelled, and arranged for certain of the other defendants -2- '~.... \l :J \J /' t ,) ........._;1 .I ~hersin and other persons known and unknown to the Grand Jury, to travel from the Central District of Illinois and Indiana to Florida and elsewhere for the purpose of taking delivery of hundreds of pounds of marijuana on each occasion and transporting it to Illinois and Indiana for distribution. 10. It was further part of said conspiracy that at least from 1980 to on or about the time of the filing of this indictment, N. JERRY PAXTON in Danville, Central District of Illinois, supplied marijuana to distributors which included defendants, tffiRJORIE MOROSE (Universi ty City, Hissour i), Ri\NDY FREDRICKSON and PEGGY PAX'rON FREDRICKSON (Arnold, Missouri), ROBERT ZEITLER (Arnold-Maxville, Missouri), G. HI-\.RK BARKER (Fenton, Hissouri) ,S'EEPHEN S. PAX'rON (Georgetown-Danville, Illinois), ROBERT HARTMAN (Albion, Michigan), WILLIAN DZUIRKIEWICZ (Jackson, Michigan), and others both known and unknown to the Grand Jury. All in violation of Title 21, United States Code, Sections 841(a) (1) and 846. COUN'l' 2 On or about February 7, 1981, ROBERT ZEITLER, aided and abetted by N. JERRY PAXTON, as defined by 18 USC ~2(a)and (b), travelled in interstate commerce, that is from the State of Missouri to the City of Danville, in the Central District of Illinoi~, witl) the intent to promote, manage, carryon, and facilitate the promotion, management, and carrying on of an unlawful activity, said unlawful activity being a business enterprise involving the distribution of a controlled substance, to wif: marijuana, in violation of Title 21, United States Code, Section 841(a) (1), and thereafter did perform and attempt to perform acts to promote, manage, and carryon and facilitate the promotion, management and carrying on of said unlawful actiVity, in violation of Title 18, United States Code, 1952 (a) (3) and 2. COUNT 3 On or about February 7, 1981, ROBERT HART~~N and WILLIN~ DZIURKWICZ, aided and abetted by N. JERRY PAXTON, as defined by 18 USC 52(a)and (b), travelled in interstate commerce, that is from the State of MiChigan to the City of Danville, in the Central District of Illinois, with the intent to promote, manage, carryon, and faci- litate the promotion, management, and carrying on of an unlawful activity, said unlawful activity being a business enterprise involving the distribution of a controlled substance, to wit: mari- juana, in violation of Title 21, United States Code, Section 841(a) (I), and thereafter did perform and attempt to perform acts to promote, manage, and carryon and facilitate the promotion, manage- ment and carrying on of said unlawful activity, in violation of Title 18, United States, Code, Sections 1952(a} (3) and 2. -3- ~\ '-' . . ".,. f } ~. '." ..-,.""'--.... ~ :f:. .J 1l;t;;? .' COUNT 4 On or about May 4 through on or about May 8, 1981, STEPHEN S. PAXTON, travelled in interstate commerce, that is from the Central District of Illinois to West Palm Beach, Florida, and back to the Central District of Illinois, with the intent to promote, manage, carryon, and facilitate the promotion, management, and carrying on of an unlawful activity, said unlawful activity being a business enterprise involving the distribution of a controlled substance, to wit: marijuana, in violation of Title 21, United States Code, Section 841(a) (1), and thereafter did perform and attempt to perform acts to promote, manage, and carryon and facilitate the promotion, management and carrying on of said unlawful activity, in violation of Title 18, United States Code, Sections 1952(a) (3) and 2. COUNT 5 On or about July 14, 1981, ROBERT ZEITLER, aided and abetted by N. JERRY PAXTON, as defined by 18 USC j2(a)and (b), travelled in interstate commerce, that is from the State of I'1issouri to the City of Danville, in the Central District of Illinois, with the intent to promote, manage, carryon, and facilitate the promotion, management, and carrying on of an unlawful activity, said unlawful activity being a business enterprise involving the distribution of a controlled substance, to wit: marijuana, in vio~ation of Title 21, United States Code, Section 841(a)(1), and thereafter did perform and attempt to perform acts to promote, manage, and carryon and facilitate the promotion, management and carrying on of said unlawful activity, in violation of Title 18, United States Code, Sections 1952(a) (3) and 2. COUNT 6 On or about July 14, 1981, N. JERRY PAXTON, travelled in interstate commerce, that is from the Central District of Illinois to Brown County, Indiana, with the intent to promote, manage, carry on, and facilitate the promotion, management, and carrying on of an unlawful activity, said unlawful activity being a business enterprise involving the distribution of a controlled substance, to wit: marijuana, in violation of Title 21, United States Code, Section 841(a) (1), and thereafter did perform and attempt to perform acts to promote, manage, and carryon and facilitate the promotion, management and carrying on of said unlawful activity, in violation of Title 18, United States Code, Sections 1952(a) (3) and 2. COUNT 7 On or about July 14 through on or about July 19, 1981, STEPHEN S. PAXTON, travelled in inter~tate commerce, that is from the Central District of Illinois to a location unknown to the Grand Jury, but in doing so travelled in the State of Georgia, \'Jith the -4- '3~ ., . -, ~ ~1,. " "'. 5J ;~;T /,! fl". . \,;......" "intent to promote, manage, carryon, and facilitate the promotion, management, and carrying on of an unlawful activity, said unlawful activity being a business enterprise involving the distribution of a controlled substance, to wit: marijuana, in violation of Title 21, united States Code, Section 841(a) (1); and thereafter did perform and attempt to perform acts to promote, manage, and carryon and facilitate the promotion, management and carrying on of said unlawful activity, in violation of Title 18, United States Code, Sections 1952 (a) (3) and 2. COUNT 8 On or about August 11 through on or about August 14, 1981, N. J~RRY PAXTON, travelled in interstate commerce, from the Central District of Illinois to a location unknown to the Grand Jury, but in doing so travelled in the State of Tennessee, and back to the Central District of Illinois, with the intent to promote, manage, carryon, and facilitate the promotion, management, and carrying on of an unlawful activity, said unlawful activity being a business enterprise involving the distribution of a controlled substance, to wit: marijuana, in violation of Title 21, United States Code, Section 841(a) (1), and thereafter did perform and attempt to perform acts to promote, manage, and carryon and facilitate the promotion, management and carrying on of said unlawful activity, in violation of '1'i tIe 18, Uni ted States Code, Sections 1952 (a) (3) and 2. COUNT 9 On or about September 8, 1981, in the Central District of Illinois, ROBER'r E. HILLER, a/k/a "Ramll, N. JERRY PAX'rON and STEVEN A.LOCKE, aiding and abetting each other as defined by 18 use S2(a) and (b), possessed with intent to distribute in excess of 1,000 pounds of marijuana, a Schedule I non-narcotic controlled substance, in violation of Title 21, United States Code, Section 841(a) (1) and (b) (6) . COUNT 10 On or about September 18, 1981, in the Central District of Illinois, N. JERRY PAXTON, and STEVEN A. LOCKE, aiding and abetting each other, as defined by 18 USC S2(a) and (b), caused a person who is kno\~n to the Grand Jury to travel in interstate commerce, that is from Danville, Central District of Illinois, to Brown County, State of Indiana, and then back to Danville, Central District of Illinois, with intent to promote, manage, carryon, and facilitate the promotion, management, and carrying on of an unlawful activity, said unlawful activity being a busi- ness enterprise inVOlving the distribution of a controlled substance, to wit: marijuana, in violation of Title 21, United States Code, Section 84l(a) (I), and thereafter did perform and attempt to perform acts to promote, manage, and carryon of said unlawful activity, in violatio of Title 18, United States Code, Sections 1952(a) (3) and 2. -5- ? r) 'J"') ;0 .~ 'I. r ,-....- COUNT 11 ,- ". '" On or about the 27th day of April, 1982, in the Central District of Illinois, N. JERRY PAXTON, corruptly did endeavor to influence; obstruct and impede the due administraton of justice in the United States District Court for the District aforesaid, in that the said N. JERRY PAXTON, knowing that a person who unknown to the Grand Jury had received a subpoena to appear before the Grand Jury inquiring in said district into possible violation of the conttolled substance laws, urged, advised and persuaded said person to give false testimony before said Grand Jury in relation to the aforesaid violations, in violation of Title 18, United States Code, Section 1503. ~ . \) \~ GERALD D. FINES UNITED STATES ATTORNEY A TRUE BILL, -0- 'jL\ vi! (k/Jf/ ~ F~PERSON rn >< :::r s.: ::;:' ... 01/08/04 11:38 FAX 7075230852 KINKO'S SANTA ROSA [4J 003 MCR-49140 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA Page l CRIMINAL DOCKET Printed l/OS!2004 ll:17 Docket of DE l SIFFIN, MARK ALFRED DOB 10!05!l950 DLN CA X6176830 Offense Date: 12!02/l985 DA #: DAR-123000 Filed Charges F HS 11350 Pending M VC 23152 (a) Pending Arresting Agency: CALIFORNIA HIGHWAY PATROL Muni Location: Reel: ~====~~=~=====o__======~~======__======~~=====~;_;====~=~=====___======~=====~__ Agency #: CHP-GA36512 DA Location: 08234 01/03/1986 DE 1 COMPLAINT FILED F HS 11350 M VC 23l52(a) 03/07/1986 DE 1 CRIMINAL HEARING - 03/13/1986 at lO:30am MCCM ,TO SET ***** End of Docket **""** i-~ m >< ::J" 0- ::+ (J1 Search - 1 Result - Siffin, Mark Page 1 of 1 Source: Public Records> Public Records> Civil & Criminal Court Filings and Reaulatorv Actions> Combined State Civil and Criminal Filings G~l Terms: siffin, mark (Edit Search) WILLIAMS WAYNE S v. MAEFIELD DEVELOP, et at *** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY *** LOS ANGELES COUNTY SUPERIOR COURT CIVIL CASE INDEX CASE NAME: WILLIAMS WAYNE S v. MAEFIELD DEVELOP, et al CIVIL CASE NUMBER: BC 269103 FILING DATE: 02/28/2002 DISTRICT: CENTRAL (LOS ANGELES) CASE TYPE: CIVIL PARTY: PLAINTIFF DEFENDANT COMMENT WILLIAMS WAYNE S FILING DATE: 02/28/2002 WILLIAMS WAYNE S FILING DATE: 02/28/2002 WILLIAMS WAYNE S FILING DATE: 02/28/2002 WILLIAMS WAYNE S FILING DATE: 02/28/2002 WILLIAMS WAYNE S FILING DATE: 04/26/2002 MAEFIELD DEVELOP P C L CONSTR SERV INC SIFFIN MARK SUNSET MILLENNIUM ASSOC LLC APOLLO REAL EST ADVISORS IV AMENDMENT Source: P_L4-QJi9_8~qQf1t$. > Publi9_BecQgj~ >CivlL&J;:;ILlTltnl!LQQYrLFiliog~_@J:tfleg!Jli:!tQJY__~J;HQ..n~ > Combined State Civil and Criminal Filings liit Terms: siftin, mark (Edit Search) View: Full DatelTime: Wednesday, December 24, 2003 - 9:40 AM EST About LexisNexis I Terms and Conditions Copyright @ 2003 LexisNexis, a division of Reed Elsevier Inc. 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S l'- I'TI >< :::s- o: ;:;: en Se'lrch - I Result - Mark Siffin Page 1 of 23 Source: Legal> Cases - U.S, > Federal & State Cases, Combined Terms: mark siffin (Ec:ljJ_$~-'.3,rc;::b) 116 Nev. 48, *; 993 P.2d 25, **; 2000 Nev. LEXIS 6, ***; 116 Nev. Adv. Rep. 7 JOHN FRANCIS MAZZAN, Appellant, vs. WARDEN, ELY STATE PRISON, E.K. MCDANIEL, Respondent. No. 30998 SUPREME COURT OF NEVADA 116 Nev. 48; 993 P.2d 25; 2000 Nev. LEXIS 6; 116 Nev. Adv. Rep. 7 January 27, 2000, Decided PRIOR HISTORY: [***1] Appeal from an order of the district court dismissing a post- conviction petition for a writ of habeas corpus. Second Judicial District Court, Washoe County; Peter 1. Breen, Judge. DISPOSITION: Reversed and remanded. CASE SUMMARY PROCEDURAL POSTURE: Appellant criminal defendant appealed a Second Judicial District Court, Washoe County (Nevada) order, denying his habeas petition following protracted litigation regarding appellant's conviction of capital murder. OVERVIEW: Following protracted litigation regarding his conviction of capital murder, appellant challenged the trial court's denial of his habeas petition wherein appellant argued that he was denied Brady material both at trial and in post conviction proceedings. The court held that a Brady violation occurred when the evidence at issue was favorable to the accused, the evidence was withheld by the state, prejudice ensued, and the evidence was material, and that this determination often turned on the context of the existing or potential evidentiary record. Also, undisclosed evidence must be considered collectively, not item by item. The court ruled that, the State cannot satisfy Brady by informing defense counsel of evidence while telling counsel that the evidence was of no value to the defense. The court found that appellant demonstrated Brady violations, and it reversed the conviction and remand for further proceedings. OUTCOME: The court reversed conviction and remand for further proceedings because appellant's denial of Brady material violated due process rights. Appellant demonstrated prejudice and cause for failure to raise Brady claim earlier. The court reserved for the district court a decision whether conviction should have been vacated with prejudice. CORE TERMS: murder, prosecutor, investigator, alibi, exculpatory, favorable, withheld, sister, killed, defense counsel, police investigation, detective, murdered, disclosure, post- trial, cocaine, blood, shoe, new trial, interviewed, girlfriend, marijuana, big, disclose, eliminated, interview, custody, motive, night, gone LexisNexis (TM) HEADNOTES - Core Concepts - + Hide Concepts Criminal Law & Procedure> Discovery & Insoection > Bradv Materials ~~] HN1,!,Determining whether the State adequately discloses information under Brady Search - 1 Result - Mark Siffin Page 2 of 23 requires consideration of both factual circumstances and legal issues; thus, a reviewing court reviews de novo the district court's decision. More Like This Headnote Crio1inalJ.,f!'"L~J'LQc::edJ.lre > Di~c::QY,eI.Y_~In~P,e_c::t:tQD >~raQy.Mf!t,eri.9!~ t.;~~! HN2,!,Brady and its progeny require a prosecutor to disclose evidence favorable to the defense when that evidence is material either to guilt or to punishment. Failure to do so is a violation of due process regardless of the prosecutor's motive. More Like This Headnote Criminal Law & Procedure> Discovery & Inspection> Brady Materials ~~:J HN3,!, Where the State fails to provide evidence which the defense did not request or requested generally, it is constitutional error if the omitted evidence creates a reasonable doubt which did not otherwise exist. In other words, evidence is material if there is a reasonable probability that the result would have been different if the evidence had been disclosed. MQIeJJ.k_eJ:hi~LHgaQnQte CrimlnaL'=-a~__~_P'[Q_<:e_QlJ.re > .Qi~<:PVeIY_~Jm~Re_c::![Ql\ >!}ntcjY_MaleI[f!l~ ~;~; HN4,!,This materiality either to guilt or to punishment of Brady material does not require demonstration by a preponderance that disclosure of the evidence would have resulted in acquittal. Nor is it a sufficiency of the evidence test; a defendant need not show that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. A reasonable probability is shown when the nondisclosure undermines confidence in the outcome of the trial. In Nevada, after a specific request for evidence, a Brady violation is material if there is a reasonable possibility that the omitted evidence would have affected the outcome. M()reJ..,i~e__Ibj~ljef!gnClte CriminaLl"a-"'L~ Pmc::e<:!w:e > Disc::QYery__~_In~Re_<;:t[Qn >E?rC'!.d.yMQte[i9J~ t!:: HN5,!,In determining the materiality of Brady material, the undisclosed evidence must be considered collectively, not item by item. The character of a piece of evidence as favorable will often turn on the context of the existing or potential evidentiary record. More Like This Headnote CriminalLa~~J~r.Qc::gQJJX_e > Dl~S;P_'t.e[L~lmm_e<:.t!Qn > !?sj!Qy.J'1_Q.terjgl~ ~~1 HN6,!,The prosecutor is responsible for determining whether possible Brady evidence is material and should be disclosed. Thus, the prudent prosecutor will resolve doubtful questions in favor of disclosure. This is as it should be. More Like This Headnote Crimin91J.,a.w__~__Pr9_cg(;tWre > Dj~cove[y._~J!!~Rec::.tl.Qn > !1r51QY_M.9ted_a~ ~~l HN7,!,Due process does not require simply the disclosure of exculpatory evidence. Evidence also must be disclosed if it provides grounds for the defense to attack the reliability, thoroughness, and good faith of the police investigation, to impeach the credibility of the State's witnesses, or to bolster the defense case against prosecutorial attacks. Furthermore, discovery in a criminal case is not limited to investigative leads or reports that are admissible in evidence. Evidence need not be independently admissible to be material. More Like This Headnote Criminal Law & Procedure> Discovery & Inspection> Brady Materials 1;~:] HN8,!,In sum, there are three components to a Brady violation: the evidence at issue is favorable to the accused; the evidence was withheld by the state, either intentionally or inadvertently; and prejudice ensued, i.e., the evidence was material. More Like This Headnote Criminal Law & Procedure> Discovery & Inspection> Brady Materials ~L::l Search - 1 Result - Mark Siffin Page 3 of 23 HN9;t.To avoid procedural default under N~-Y_,_B~_Y,~it~t__s_34,JUQ, a defendant has the burden of pleading and proving specific facts that demonstrate both good cause for his failure to present his Brady violation claim in earlier proceedings and actual prejudice. N~Y.__R.gY,_St91,JLJ4_,{ttQ{JJ. Cause and prejudice parallel two of the three Brady violation components. If a defendant proves that the State withheld evidence, that will constitute cause for not presenting his claim earlier. If he proves that the withheld evidence was material under Brady, that will establish actual prejudice. More Like This Headnote Ql!DjnQLLqYL~_J)[9~edlJ[e > Qis_~Qy~r:yJ~', l[1~p.eJ;;tiQO HNI0;t.The United States Supreme Court has never held that the United States Constitution requires an open file policy by prosecutors. More Like This Headnote Criminal Law & Procedure> Discoverv & Insoection > Brady Materials ~ HNll;t.The State cannot satisfy Brady by informing defense counsel of evidence while telling counsel that the evidence is of no value to the defense. More Like This Headnote Criminal Law & Procedure> Discovery & Insoection > Brady Materials ~:J HN12;t.The proper question to determine the materiality of potential Brady material is whether the evidence is favorable, and this will often turn on the context of the existing or potential evidentiary record. Undisclosed evidence must be considered collectively, not item by item. ~Q[~l"i~eTtJis,Jie?lj:jDQte Criminal Law & Procedure> Discovery & Insoection > Brady Materials~;';i HN13;t.The failure to disclose evidence favorable to the defense violates due process irrespective of the good faith or bad faith of the prosecution. More Like This Headnote Criminal Law & Procedure> Discovery & Insoection > Brady Materials il:~.) HN14;t. When the State fails to disclose evidence which the defense does not request or requested generally, it is constitutional error if the omitted evidence creates a reasonable doubt, i.e., if there is a reasonable probability that the result would have been different if the evidence had been disclosed. A reasonable probability is shown when the nondisclosure undermines confidence in the outcome of the trial. After a specific request for evidence, a Brady violation is material if there is a reasonable possibility that the undisclosed evidence would have affected the outco me. More_I,.JJse-.I_hjs Jteggn<2te Crimina'-l-g~~_PIQ~edV[~ > Qls1;mL~[~'_!l!,JI}:.iP_e!";tLQfl > ~C9g-Y,Mi~ttertQls~;~J HN15;t.Brady evidence does not need to be independently admissible to be material. Evidence is material if it might be used to impeach a government witness. M9Ie_I,,'-~eItJJsJ:I~~;tI}51-te Criminal J"g'!'.L~PrQ~e(:.tlJIe > APPeg!s > Reyt!i~i'3bjllty > PIeSeJ'ti'3t!9RfQLBeYl!i'!Y .~~ HN16;t.Contentions unsupported by specific argument or authority should be summarily rejected on appeal. More Like This Headnote COUNSEL: JoNell Thomas, Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Chief Appellate Deputy District Attorney, Washoe County, for Respondent. Search - 1 Result - Mark Siffin Page 4 of 23 JUDGES: MAUPIN, J ., with whom YOUNG, J., agrees, concurring. OPINION: [*51] [**27] BEFORE THE COURT EN BANe. OPINION PER CURIAM: In 1979, appellant John Francis Mazzan was convicted of first-degree murder and sentenced to death in the Second Judicial District Court. The state's theory was that he stabbed Richard Minor to death in Minor's home and then took money and drugs from the home. On appeal, this court affirmed Mazzan's conviction but reversed his sentence. MQ~~n_Y_,.S191~_-'M9~_~!;m I). 100 Nev. 74. 675 P.2d 409 (1984). After a second penalty hearing, Mazzan again received the death penalty, and this court affirmed that sentence on the second appeal. Mazzan v. State <~g?:?;.gn_Il)L._1Q~.N.~Y,._92,.23J.J~-,-2~~L8.5Q_U,_~13ZL Mazzan [* * * 2] petitioned for post- conviction relief, the petition was denied, and this court affirmed the denial. Mazzan v. State (Mazzan III). 105 Nev. 745. 783 P.2d 430 (1989). Mazzan next petitioned for post-conviction habeas relief. After the First Judicial District Court summarily denied the petition, Mazzan appealed, and this court remanded the matter for reconsideration. After being transferred to Ely State Prison, Mazzan moved for a change of venue to the Seventh Judicial District Court. The district court denied the motion; this court dismissed Mazzan's interlocutory appeal of the denial without reaching the merits. Mazzan v. Stgle_ (J..1.i:l?:?;9J) IV}, J.Q9Nev, JQ6Z,893.. p. 20 JQ35.< 1993) , The district court then dismissed the habeas petition as procedurally barred. This court affirmed. Mazzan v. Warden, Nevada State Prison (Mazzan V), 112J~~Y.838,.921.e..2d.9~Q U99Q)-! Mazzan petitioned for rehearing, asserting that he had discovered that the state had withheld exculpatory police reports from him before his trial. This court denied rehearing, concluding that his remedy was to file another [*52] habeas petition in the district court. Mazzan v. State, Docket No. 26985 (Order [***3] Denying Rehearing, November 8, 1996). Mazzan did so. After an evidentiary hearing, the district court entered an order denying the habeas petition. The court concluded that although the police reports were material and exculpatory and were probably not provided to Mazzan, prosecutors had orally communicated to his defense counsel any information required by .6I9.d.Y_Y_LJ'1QryJgmL_JZ.J_J,.LS--,_~Jl-1Q.J",_fQ,_~0_.~15--1-~~_S. Ct. 1194 (1963). The court's order did not address other claims Mazzan had raised in his petition. Mazzan appeals. FACTS Facts disclosed at earlier proceedings Mazzan testified at trial to the following. He moved to Reno in April 1978 and worked as a hairdresser while his wife worked in Las Vegas as a dancer. Mazzan and his friends used marijuana and cocaine, and he obtained cocaine from April Barber, a prostitute at Mustang Ranch. He became friends with Barber's boyfriend, Richard Minor, who supplied him with marijuana. Mazzan spent the evening of Wednesday, December 20, 1978, at Minor's residence. The two smoked marijuana, snorted cocaine, and taped albums. Sometime in the early morning, Mazzan tried to leave, but his car would not start. Minor let [***4] him spend the night, and he bedded down behind Minor's couch and slept. Mazzan awoke to the sound of a scuffle in the kitchen and saw Minor struggling with someone. The person left through the door, and Mazzan heard two people running and then a car driving away. Minor had blood all over him. Search - 1 Result - Mark Siffin Page 5 of 23 Mazzan was confused and shocked; he stepped out the door, could not see anything, and went back inside. Minor was leaning against the wall and then collapsed and died. Mazzan left and did not report the crime because he was afraid that he would be implicated in the [**28] drug use and might be in danger from the perpetrators of the crime if they found out he knew anything. He was sure Minor was already dead, and he expected that Minor's younger brother would arrive that morning and discover Minor. When Mazzan returned home, he cleaned his shoes and washed his hands. He had his clothes laundered. When police later questioned him, he told them he had thrown away a pair of running shoes about a month earlier. The state provided evidence that that same type of running shoe had a pattern resembling bloody footprints in the kitchen at the crime scene. Minor's father, a justice of the peace, discovered his [***5] son's body on Friday, December 22, 1978, the day after the killing. On Wednesday he had gone to his son's residence. Mazzan was present, and Minor had introduced him as "my friend Jack." (M?lzzan [*53] was called both John and Jack.) Minor's younger brother also saw Mazzan at the residence Wednesday evening. He had met Mazzan a few times before, and Minor and Mazzan appeared to be friends. A little past midnight that same night, John Sullivan saw Mazzan at Minor's. Sullivan bought a quarter ounce of Hawaiian marijuana from Minor for $ 65.00 and left. Jim Shallman, a friend of Minor's, testified that Minor had traveled to Hawaii, evidently not long before his death, and returned with about two pounds of marijuana. Shallman saw Minor with $ 6,000.00 in cash in mid-October 1978. He had seen Mazzan with Minor a few times, and the two appeared to be friends. At the crime scene, investigators found a blanket with several cuts in it and blood on it. The residence was small, a converted garage. An investigator theorized that Minor was first attacked with a knife while lying on the couch with the blanket over him and that he then went into the kitchen toward the door and refrigerator. Minor was [***6] found on the floor near the couch. Prints left in blood by a kind of sports shoe were found on the kitchen floor and the blanket; only one print was distinct. No identifiable fingerprints were found. Most of the blood was found in the kitchen and where the body was lying. A smear of blood was later found on the inside of the driver's side window of Mazzan's car. Minor was stabbed fifteen times, including in the heart and lungs. There was no sign of forced entry to the residence. The prosecution theorized that he was killed for his money and drugs. However, other than the $ 65.00 received by Minor that night, there was no clear evidence of how much money or drugs Minor had the night he was killed. Two days after the murder, Mazzan flew to Las Vegas to see his wife for the holidays. Las Vegas police contacted him, informed him he was a suspect in Minor's killing, and told him he should contact the police in Reno when he returned there. He volunteered no information about Minor's death. Mazzan returned to Reno on December 26, 1978, and went to the police station the next morning around 11:30 a.m. He was questioned for about twelve hours and then arrested for murder. Mazzan first told [***7] the police that on the night in question, he had left Minor's place around midnight and did not see the murder. When told that blood had been found in his vehicle, Mazzan admitted that he had been present when Minor was killed. The police checked and found no apparent bruises on Mazzan. (Minor had been about six feet four inches tall and weighed about two hundred fifteen pounds.) Over the next few days, the police obtained a number of statements from Mazzan that showed some discrepancies, e.g., in regard to the position that he left Minor in, [*54] the shoes which he had worn at Minor's residence, and what he had done immediately after he left there. Mazzan's trial counsel, Larry McNabney, later stipulated to the voluntariness of these statements. Search - 1 Result - Mark Siffin Page 6 of 23 On January 3, 1979, a week after Mazzan's arrest, a garbage worker found a bloody coat belonging to Mazzan and a purse and bloody clothes belonging to April Barber, Minor's girlfriend, in a trash can not far from Mazzan's home. A key to a lock at Minor's residence was in Barber's purse. Barber had been missing for about a month. The evidence showed that these items were placed in the trash after Mazzan had been arrested and incarcerated. On February 13, [**29] 1979, the [***8] state filed an amended information alleging that Mazzan either murdered Minor or aided and abetted in his murder. During trial, as the state prepared to rest, District Attorney Cal Dunlap moved to block any inquiry by the defense into either the police investigation of Minor's drug connections or a statement by Minor's sister. The sister had informed police that Minor had told her not long before his death that he was in danger due to his drug dealings. Dunlap argued that it was all inadmissible hearsay evidence. McNabney countered that the defense case depended on showing that after Mazzan was in custody, the police went to Ohio, Indiana, and Hawaji and continued their investigation. The defense theory was that Minor was involved with drug traffickers who murdered him and left Mazzan "holding the bag. And, if we can't get into that, we might as well end the whole trial right here." The district court asked where Minor's sister was. McNabney said, "I don't know; I didn't even know about this sister's statement until I saw it in the police report today. I don't know where she is. That's the first I ever knew of it." The court considered the sister's statement admissible but concluded [***9] that "the fact that the police were following leads around the country" was not relevant. As a result, McNabney was not able to elicit any evidence other than that the police had investigated in the Midwest after Mazzan was in custody. After the court's ruling, the state called Minor's sister, Cynthia Shelley, to testify. About two weeks before his death, Minor told her and her husband "that he was afraid, that he had been involved in some sort of dealing, and he wanted to get out, and he was afraid." On cross-examination, McNabney asked Shelley who her husband was and where he was. She told him, "He is outside the door." The state then called the husband, who testified that Minor "was concerned that his involvement with drugs had brought him to the point where he was in trouble with the police." [*55] The state then rested. Mazzan testified in his own defense, as discussed above, and called several character witnesses who testified to his nonviolent nature. In closing argument, Dunlap dismissed the defense's suggestion that Minor was killed over some drug deal, telling the jury several times that police had uncovered no evidence of such a possibility. The jury found Mazzan guilty of [***10] first-degree murder and sentenced him to death. McNabney filed a notice of appeal and withdrew as Mazzan's counsel. The district court appointed the Washoe County Public Defender (WCPD) to represent Mazzan on appeal. In March 1981, about a year and a half after the verdict, Mazzan's new counsel, Patrick Flanagan, moved the district court for acquittal, on the basis of insufficient evidence, or for a new trial, based on newly discovered evidence that April Barber had been murdered. Barber's skeletal remains were found in November 1979 and indicated that, like Minor, she had been stabbed to death. Flanagan argued that Barber and Minor were murdered by the same persons, that Mazzan could not have murdered Barber, and thus that Mazzan had not murdered Minor. In April 1981, Flanagan moved to inspect and copy any records the state had of Minor's drug dealings. At a hearing on the motion in May 1981, Flanagan argued that the identity of Minor's drug contacts was critical to determining who murdered Minor and Barber. Dunlap opposed the motion. He asserted that the matter of Minor's drug dealings "was thoroughly litigated and argued to the jury." He also asserted that the evidence regarding [***11] Minor's drug dealings contained nothing exculpatory. Dunlap told the district court that Search - I Result - Mark Siffin Page 7 of 23 ordinarily he would not object to discovery of the material; however, if Mazzan's appeal in this case was successful, he intended to charge Mazzan with Barber's murder and therefore did not want to allow "a fishing expedition" through his files. Pursuant to the district court's request, Dunlap said that he would provide his entire file to the court for in camera review. In March 1982, at the start of the hearing on Mazzan's motions for acquittal or a new trial, the district court announced that it had considered a series of police reports provided by Dunlap and found nothing exculpatory. [**30] During the hearing on Mazzan's motions, Reno Police Department Detective Teglia testified. Flanagan asked Teglia if during his Midwest investigation he had developed any suspects that might have been involved in Minor's murder. Teglia replied, "No." The court denied the motions. The court stated that although it had thought Mazzan was innocent, it did not feel the evidence justified advising the jury to acquit. It concluded that the new evidence of Barber's remains did not exculpate Mazzan. [*56] On appeal, this [***12] court affirmed Mazzan's conviction; however, it reversed the sentence because of ineffective assistance of counsel at the penalty hearing. Mazzan I, 1 O_Q_N~_v:,_Z4,6Z5_J?_,2Q_'~to_2.. The second penalty hearing occurred in February 1985. McNabney again represented Mazzan. The jury returned a verdict of death, finding the murder occurred in the course of burglary and robbery. McNabney filed a notice of appeal and a motion to withdraw as counsel. The district court again appointed the WCPD to represent Mazzan on appeal. This court affirmed the death sentence.Mc:l.f:zgnJI,_JQ~Nev_.99,7~~. P.2c185.0.. Mazzan filed a petition for post-conviction relief in May 1987. In December 1987, the district court dismissed it, and on appeal, this court affirmed. MClf:Zi;\nJJJ,mlQ5_N~v.]45,_Z8J_.e,2.Q 4:iQ-,- In June 1988, Mazzan filed for post-conviction habeas relief. After the district court summarily denied relief, this court remanded to allow Mazzan an opportunity to show cause for his failure to raise his claims earlier. In February 1995, the district court again denied the petition. This court affirmed in 1996. Mazzan V, lJ.2NeY..8.~8,.22J.P..2-,.t_~;W-,_ [***13] Mazzan petitioned for rehearing, asserting that he had discovered that the state had withheld exculpatory information from him before his trial. In denying rehearing, this court stated: If appellant's allegations are true, then it appears that appellant is entitled to a new trial. Appellant's allegations require factual determinations which are best addressed in the district court. If true, appellant's claim that the state withheld exculpatory police reports demonstrates good cause and prejudice to excuse a procedural bar to the filing of a new petition for a writ of habeas corpus. We conclude that appellant's remedy is to now file a petition for a writ of habeas corpus in the Second Judicial District Court. Mazzan v. State, Docket No. 26985 (Order Denying Rehearing, November 8, 1996) (citations omitted). Facts disclosed after the filing of the instant petition Mazzan filed his instant petition seeking habeas relief in the district court in November 1996 and a supplement to his petition in May 1997. Mazzan's primary claim, briefly put, was the following. Upon receiving the police file on his case in 1996, he discovered that after Minor was murdered, police investigators [***14] uncovered information that Minor had been dealing drugs with Harry Douglas Warmbier and Mark Siffin. Minor had grown up with Warmbier in the Midwest. Warm bier and Siffin did extensive drug trafficking and were under investigation by the Drug Enforcement Agency (DEA) at the time. Warm bier was enrolled Search - 1 Result - Mark Siffin Page 8 of 23 [*57] at Indiana University but had actually hired an associate, Robert Carmichael, to impersonate him and attend classes for him. There was evidence that Warmbier and Siffin might have been in Reno at the time of Minor's murder. Through his attorney, Warmbier claimed to have an alibi and refused to be interviewed by Reno detectives. Siffin could not be contacted at all because he had dropped out of sight since the time of Minor's murder. Mills Lane, the initial prosecutor in this case, asked Warmbier's attorney to send documentation to back up the alibi. The documents sent in response were of questionable reliability, including unsworn statements by Warmbier's girlfriend, Dorothy Nyland, and by Carmichael's girlfriend. Carmichael not only impersonated Warmbier at college but was linked to Warmbier's drug activities. The following sets forth in more detail the information which the prosecution [***15] possessed. [**31] Reno Police Detectives Teglia and penegor were the lead investigators in the Minor homicide. A report by penegor in January 1979 included the following information. Three days after the murder, penegor telephoned Nola Minor, the victim's mother, in Ohio. She stated that Minor had called her on November 26, 1978 (about four weeks before his murder), from San Francisco. He told her that he was with two other people, apparently Doug Warmbier and a Mark whose last name she did not know. She knew that "Doug and Mark had come to Reno," and the three had driven to San Francisco in Minor's van. The report noted, "Mark could be a Mark Siffin." Nola Minor also received a call from Minor on December 2, 1978. He was in Hawaii, apparently with Warmbier and Mark. On December 8, 1978, she called and spoke to her son in Reno. According to the report, he told her that after he returned to Reno, April Barber had left him and was not at the residence. He was concerned because she had a car and a door key to his residence. Upon returning to the residence he found a burnt $ 20 bill that April had left for him, unknown what significance this was at this time. Nola Minor later learned from [***16] Tim Beck, a friend of her son's and Warm bier's, that Warmbier was supposed to be in the Reno area on December 20 or 21, 1978, to contact her son. (The murder occurred early in the morning on Thursday, December 21, 1978.) Warmbier was enrolled at Indiana University (IU). Reno police asked IU police to contact Warmbier and received an IU police officer's report with the following information. On January -18, 1979, the officer tried to interview Warmbier and discovered that a person was impersonating Warm bier. The person identified himself [*58] as Robert Carmichael, admitted that he was paid to attend classes for Warmbier, and telephoned Warmbier's attorney, Ira Zinman. The next day the officer met with Zinman, Warmbier, and Nyland, Warmbier's girlfriend. Warmbier admitted that he knew Minor but tried "to give the impression that they were not good friends." Warm bier stated that he had learned of Minor's death on the morning of December 22, 1978, when Nyland called Minor's residence and police answered. Warmbier also stated that he last visited Reno about three weeks before Christmas, and he and Minor flew from San Francisco to Hawaii. Minor had just broken up with Barber, whom Minor described [***17] "as a hooker, prostitute, and extortionist." Warmbier said that he knew several people named Mark, but only he and Minor had gone to Hawaii. Warmbier said that he was in Bloomington, Indiana, from December 8 until just before Christmas 1978. Police in Reno also obtained DEA investigative reports. One report covered suspected drug smuggling and trafficking in Bloomington, Indiana, in July 1978. Among other things, it noted suspicious activities by Siffin and Carmichael at an airport, carrying items to and from an airplane, and vehicular traffic between Siffin's residence and that of Nyland and Warmbier. Another DEA report stated that "Siffin is suspected of being a major cocaine trafficker." .t- Reno Police Detective Captain Ken Pulver spoke to reporters on January 25, 1979. The Nevada State Journal reported that Pulver said drug trafficking was a factor in Minor's murder Search - 1 Result - Mark Siffin Page 9 of 23 and he would "send officers to San Francisco, Ohio, Indiana and perhaps Hawaii to interview persons on the unsolved crime." The Reno Evening Gazette carried a similar article. The next day, prosecutor Mills Lane addressed a letter to Capt. Pulver, stating: The Mazzan case is a tough one at best. We're going to use all [***18] the facts and investigation to our best advantage, of course, keeping sound ethics and good police conduct in mind. I do not want any of our investigation or any of the facts that we have developed released to the press unless the same is discussed with me. The more the defense knows about our case, the more they are going to be able to try and work around it. In Nevada we do not have to give out police reports, and if the press knows what's in those reports it's the same as turning them over to the defense. Reno Police Sergeant Rodney Stock, who was an initial investigator of the murder, submitted a report on February 5, 1979, noting among other things the following. "In [**32] the original investigation it was learned that Harry Douglas Warm bier and a man named Mark were coming to Reno sometime around the twenty-first [*59] or twenty-second of December to meet [Minor] and possibly go on to Hawaii." "Mark Siffin apparently went underground sometime prior to the Christmas holidays and has not been seen since according to the Monroe County [Indiana] Sheriff's Department, IU Police, and apparently the DEA Task Force working this particular case." On February 2,1979, after Mazzan had been in [***19] custody for more than five weeks, an interoffice memo by Det. Teglia stated that investigators had information which indicates that there is a direct connection between Minor's death and certain persons/activities in the Midwest. Certain of Minor's activities immediately prior to his death have involved people from the Cincinnati and Bloomington, Ind. area. Also, numerous phone calls made by Minor to associates in these two cities and in adjacent areas seem to lend credence to information received from DEA that Minor and his associates were in fact involved in a major narcotics distribution ring. It is believed that Minor's death, and the presumed death of April Barber are directly } connected to these narcotics activities. It is also believed that direct contact with the other .:r persons believed to be involved will provide information which will assist in establishing motive, and information vital to the prosecution. About a week later, Dets. Teglia and penegor traveled to the Midwest to investigate leads there. The detectives interviewed Michele Cameron Abshire in Ohio, who told them that she and Minor had known each other for about seven years and at one time planned on marrying. [***20] Minor had worked for Warmbier, transporting marijuana. Minor dealt in only small amounts on consignment. A month or two before his death, Minor told Abshire that he and April Barber, who had money, planned to make cash deals. Once Mark Siffin "had slipped some cocaine on" Minor without his knowing, and Minor "was highly upset because of it." Abshire heard, apparently from Warmbier, Tim Beck, and Glenn Peterson (a Reno friend of Minor's), that Warmbier and someone else were supposed to meet Minor in Reno on Thursday (the day of the murder), but Minor failed to meet them at the airport; they may have gone to Minor's residence, found his body, and left. Abshire suspected that Barber and Minor were killed because Barber was extorting money from someone. (Barber was missing at the time; her body was discovered later.) Another police report shows that the detectives also contacted Warmbier's attorney, Zinman, in Indiana and asked to interview [*60] Warmbier. Zinman would not allow an interview Search - 1 Result - Mark Siffin Page 10 of 23 but suggested a polygraph examination based on questions made up by Zinman. This was unacceptable to the detectives. They telephoned Warmbier, but he refused to be interviewed. Another report summarizes [***21] the detectives' interview in Ohio of Tim Beck, Minor's friend since childhood. The day before the murder, Minor telephoned and told Beck that after Minor had returned from Hawaii in early December, he found that Barber was gone from his residence but her clothing and personal belongings were still there. Minor also found a burnt twenty-dollar bill, the significance of which he did not understand. After the murder, Warmbier told Beck that Warmbier flew into Reno early on Thursday, December 21, 1978. Minor failed to pick Warm bier up at the airport so Warmbier took a taxi and arrived at Minor's after police had discovered the body. The report states that Warmbier may have been accompanied by Mark Siffin. It also notes that police did not discover Minor's body until December 22, 1978, not December 21 as Warmbier said to Beck. Also, the time that Warmbier said he arrived in Reno did not correspond to flight schedules from the east, but could correspond to flights out of San Francisco or central California. Meanwhile, investigators in Reno interviewed Glenn Peterson, a friend of Minor's. Peterson said that Minor had talked about his drug connections from "back east" but never mentioned [***22] names. Minor intended to meet "the boys from back east" on Thursday, December 21 (the day of the murder) about [**33] the purchase of Thai sticks (a potent form of marijuana). Either they would come to Reno, or Minor would go to San Francisco. Minor was close to April Barber, but Peterson had "bad vibes" about her. She had a lot of money and cocaine, and Minor "seemed to change after he met" her and "seemed on edge after she left." James Shallman, who had worked with Minor, was also interviewed in Reno. Shallman told an investigator that Minor had said he had a big shipment of Thai sticks coming in and that he was leaving Wednesday, Thursday or Friday driving the van, and "this guy" was coming out or already here. This "guy" supposedly knew how to handle Hawaiian agricultural inspections by switching suitcases. Richard Minor had stated that he had been "burned" by this guy but "respected him" and thought that he was an "asshole". Most of the money Richard Minor had belonged to "the guy." [Shallman] then used the phrase "Mr. Big" stating that this "Mr. Big" had made lots of money trafficking narcotics. . . . [*61] Minor said cops in Bloomington [Indiana] had come down hard and affected [***23] "Mr. Big". During the fall of 1978, Minor apparently owed this person about $ 6,000.00 for fronting drugs to him; Shallman did not know if or when Minor had paid the debt. Investigators also learned that Minor had told his sister, Patti Ison, about a debt. Sometime after Minor's death, Ison wrote her father that "five or six months ago he [Minor] asked me if I could loan him some money, he owed it to someone and had to pay them back." On February 22, 1979, after returning from the Midwest, Dets. Teglia and penegor wrote an interoffice memo to their captain. They stated that they had gathered information that Warmbier was in Reno around the time Minor's body was discovered, that Minor was heavily involved in drug trafficking, and that "direct contact with Mr. Warmbier was of extreme importance in resolving this portion of the investigation." They detailed how Warmbier and his attorney had prevented such contact. Since they "did not have enough information to formally charge Mr. Warm bier as a principal or accessory" in the murder, "this aspect of the investigation could not be pursued any further." They advised DEA and Indiana investigators of the situation, and one investigator [***24] indicated that he would continue to investigate Warmbier and Siffin to try to obtain information useful to the murder Search - 1 Result - Mark Siffin Page 11 of 23 investigation. Teglia and Penegor stated that earlier the investigation "had reached a complete standstill," but on their Midwest trip "a number of new areas were opened up which are assisting investigators in establishing a more viable case for the prosecution." The same day that the detectives reported how Warmbier's attorney, Zinman, had "thwarted" their efforts to contact Warmbier, prosecutor Mills Lane wrote Zinman to thank him for "agreeing to furnish us with certain information to alibi your client, Mr. Warmbier." Two months later, on May 1, 1979, Zinman wrote to Lane and sent him two receipts and two handwritten letters. A letter by Dorothy Nyland stated that she was with Warmbier in Bloomington, Indiana, on "the 20th and 21st" and that she had verified this with shopping receipts. Debra Russell's letter stated that Warm bier had borrowed the car of her roommate, "R. Carmichael," on December 20 and returned it about 6:30 that evening. It appears that Lane did not know that Nyland was Warm bier's girlfriend or that Robert Carmichael was the person that Warmbier [***25] paid to impersonate him at Indiana University. In a letter dated May 4, 1979, Lane told Zinman that defense counsel McNabney "has advised me that he would not contest the fact that your client was in Bloomington if I could provide documentation to that." Because of the documents provided [*62] by Zinman, Lane did not believe that he would need to subpoena anyone regarding Warmbier's alibi. On February 14, 1979, Mazzan's trial counsel, McNabney, had moved for discovery of any material which the state knew or might learn of "which is exculpatory in nature or favorable to the accused or which may lead to exculpatory materiaL" In March 1979, he moved for discovery of the state's witnesses' [**34] statements. Lane opposed the motion, and it was denied. Mazzan was tried and convicted in October 1979. Almost seventeen years later, in July 1996, Michael Hodge, an investigator for the Nevada State Public Defender, subpoenaed the police file in Mazzan's case. The Reno City Attorney's Office eventually approved release of the file, containing 500 to 700 documents, but Hodge was told that he would not receive any confidential reports; to obtain those, he had to contact the District Attorney's Office. Nevertheless, [***26] Hodge's inspection of the file uncovered the police reports discussed above, some of them marked confidential. After Mazzan filed his instant petition for habeas relief, he moved the district court to bifurcate the issues raised in the petition, to consider first his claim that he was not provided with exculpatory evidence and, if necessary, to consider his other claims later. The state did not object. During a deposition in May 1997, former police sergeant Stock testified as follows. Stock was a supervisor in the detective division of the Reno Police Department and worked on the investigation of Minor's murder for about three weeks in early 1979. He believed that the investigation had not eliminated all possible suspects. Teglia's and Penegor's investigation of Warmbier and Siffin as suspects in Minor's murder had been frustrated. "I still think to this day that somebody back there [in the Midwest] has withheld information." Mazzan could have been "in the wrong place at the wrong time." He also might have been an accessory, but "we may have more people involved in the actual murder." When the state asked if it was true that "the police department in Reno had a man in custody and [***27] simply left it at that," Stock replied, "Yeah. It's probably true. But then again, it's up to the District Attorney's Office, which the police have no control over." In a capital case, Stock felt that "you would have to follow up, do everything you could to attempt to find [someone like Warmbier] and interview him or whatever, try and get additional evidence like, say, a plane ticket or passenger list or whatever to verify if he was here or not." Stock thought the police "did as much as they could under the circumstances. . . . You're talking time, manpower, and money. " [*63] On May 28 and 30, 1997, the district court held an evidentiary hearing, and a number of witnesses testified. Former detective Teglia testified that Warmbier was initially a Search - 1 Result - Mark Siffin Page 12 of 23 suspect in Minor's murder, but eventually the investigation focused solely on Mazzan. Mazzan's counsel asked Teglia if he had "specific evidence that eliminated Mr. Warmbier and Mr. Siffin as suspects," and Teglia replied, "We had specific lack of evidence that allowed for the possibility of anybody else but Mr. Mazzan being in the residence at the time the homicide occurred." Evidence showed that other people were "involved after the fact," but [***28] this was not relevant to who committed the killing. The police never determined whether or not Warmbier or Siffin was in Reno around the time of the murder. Mills Lane, the initial prosecutor, testified. Lane usually did not allow defense attorneys to look at his case file, and if he did not trust an attorney, he gave the attorney nothing more than was required by law. He did not copy reports for defense attorneys; he "would give a synopsis" of any Brady material. Lane remembered talking to McNabney about Warmbier, but McNabney said that he was not going to claim that Warmbier committed the murder. After that, Lane did not consider Warmbier "pertinent." He saw no nexus between Warm bier and the murder. When asked about the fact that "Warm bier may have been here in Reno on or about the day of the murder," Lane responded, "On or about doesn't do very much for me. If you say he was in Mr. Minor's house the night he was killed, that would be something different." Mazzan's counsel showed Lane the alibi documents, and Lane agreed that the two "Dorothy Nyland" signatures (one on a letter and the other on a receipt) slanted in different directions. He also conceded that it would "bother" [***29] him if he found out that Warmbier now admitted that he had been in Reno, contrary to the alibi. Lane was not sure if he told McNabney that the DEA was investigating Warmbier and Siffin. Lane did not remember information that Warm bier and a man named Mark were coming to Reno to meet Minor at the time of the murder, [**35] but he was satisfied that he would have given such information to McNabney. Cal Dunlap, the trial prosecutor, testified. Dunlap was not sure if he provided McNabney with an open file, and he did not recall giving any specific documents to McNabney. Whether he gave McNabney documents or just spoke with him, he knew that McNabney "knew a lot of that information that's in the [police reports]." McNabney "didn't seem the least bit interested in following up on these because. . . he didn't believe that there was any real substance and any need to pursue these leads." When asked if he told McNabney that "at least one witness said that [*64] Mr. Warmbier was in town on the day of the murder," Dunlap answered that he had no specific recollection, but "if I knew, I probably did." Dunlap answered similarly regarding whether he shared other specific facts. When Mazzan's post- trial attorney, [***30] nl Patrick Flanagan, specifically requested any written reports on Minor's drug transactions, Dunlap claimed that he refused to provide the documents because he thought that Mazzan was involved in April Barber's murder and defense counsel simply wanted discovery for that case. Dunlap admitted that at trial he had been convinced that other people were involved in Minor's murder. Mazzan's counsel asked Dunlap how he could tell the jury at trial that no evidence supported Mazzan's defense when his file contained such evidence. Dunlap said that he simply based his argument on the record before the jury and that other evidence was not relevant. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - nl We will refer to Flanagan's role as "post-trial" because it appears that he only represented Mazzan in his motion for a new trial, while Jane McKenna represented Mazzan on direct appeal. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Mazzan called as witnesses his trial attorney, McNabney; his trial investigator, Richard Terry Gilmartin; his post-trial attorney, Flanagan; his appellate attorney, Jane McKenna; Search - 1 Result - Mark Siffin Page 13 of 23 and [***31] his post-conviction attorney, Don Evans. In representing Mazzan, none had seen any of the police reports at issue. McNabney testified. Before trial, McNabney became aware through the District Attorney's Office that Warmbier was involved in drug trafficking with Minor. It was related to me that there may have been a possibility [Warmbier] was here in Reno. . . on the day of the murder. . . . In discussions with the prosecutor at some point in time I was satisfied in my own mind that Douglas Warm bier's alibi was solid and he wasn't in fact in Reno, and I didn't pursue the matter further. McNabney also telephoned Zinman, Warm bier's attorney, regarding the alibi. McNabney did not recall ever being told that one person had placed Warmbier in Reno around the time of the murder. This information would have been helpful to Mazzan's defense, but the representations McNabney received "indicated that [Warmbier] wasn't in fact here, that he had an alibi, and that's all I knew." Flanagan testified. He initially represented Mazzan after his conviction and moved for a new trial. In April 1981, he moved to inspect and copy any records the state had of Minor's drug dealings. [*65] Dunlap opposed [***32] the motion and asserted that the evidence regarding Minor's drug dealings contained nothing exculpatory. At the hearing, Mazzan also attempted to present evidence he had uncovered after obtaining the police reports. He offered it to show that the reports contained material information which could have led to further exculpatory information. The district court ruled that the evidence was not relevant because it had not been in the possession of the state. Testimony by Michael Hodge and an affidavit by Dean Taylor Brymer were therefore not considered by the court, but were submitted as offers of proof. According to Brymer's affidavit, in December 1978, less than two weeks before the murder, Brymer broke into Minor's residence and stole a large amount of marijuana and $ 6,000.00 in cash. Hodge, the investigator for the State Public Defender, provided an affidavit and notes. Hodge interviewed Dorothy Nyland in Indiana in April 1997. When shown the alibi letter over her name, Nyland did not remember writing it and did not think the signature was hers. Nyland said that Warmbier had called her from Reno on December 22, 1978, the day that Minor's body was discovered. Hodge also interviewed [**36] [***33] Warmbier, who was in a hospital after a serious accident. Warmbier "admitted being in Reno on the day of the murder." He said that he and Minor had worked for Siffin, who had been the "brains and money" behind the drug operation. Minor stole some drugs from Siffin, but Warmbier did not know the quantity; Siffin was capable of killing Minor, but Warmbier "would have killed Siffin if he even thought" Siffin did it. Warmbier did not recall seeing or authorizing the alibi letters. In response, the state submitted an affidavit by its own investigator. That affidavit stated in part that the investigator spoke to Warmbier, that Warmbier said he spoke to someone about Minor's murder while he was heavily medicated and did not recall what he said, and that Warmbier denied being in Reno at the time of the murder. On August 18, 1997, the district court entered an order denying the habeas petition. The court concluded that although the police reports had exculpatory value and were probably not provided to Mazzan, prosecutors had told McNabney orally any information required by Brady. McNabney "was fully apprised of Mr. Warmbier and his alleged activity in Reno" but chose not to pursue a defense [***34] involving Warmbier, believing it to be "frivolous." The court further concluded that any evidence pertaining to Siffin was not Brady material because it did not "sufficiently show that Mr. Siffin was ever in Reno at or near the time of the murder, or that his involvement somehow exculpates Mr. Mazzan." The court did not rule Search - 1 Result - Mark Siffin Page 14 of 23 on any other issues. [*66] DISCUSSION The failure to provide appellant with material information favorable to his defense Standard of review and applicable law HN1'i'Determining whether the state adequately disclosed information under6Jg(.;ty_y,_ Maryland, 373 U.s. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). requires consideration of both factual circumstances and legal issues; thus, this court reviews de novo the district court's decision. See Smitbv,_S~c::r~tgrYJ)ePt. Qt.c.::Qrrec::tlQns/_5Q_E,~cLaQ1JaZZJ1Qtb_.<::I[,_ 1~2~}, HN2'i'Brady and its progeny require a prosecutor to disclose evidence favorable to the defense when that evidence is material either to guilt or to punishment. See li.m~neLY.!___S.tQt~_llZ. Nev. 610, 618-19, 918 P.2d 687. 692 (1996). Failure to do so is a violation of due process regardless of the [***35] prosecutor's motive. Id. at 618, 918 P.2d at 692. HN3'i'Where the state fails to provide evidence which the defense did not request or requested generally, it is constitutional error if the omitted evidence creates a reasonable doubt which did not otherwise exist. Id. at 619, 918 P.2d at 692. In other words, evidence is material if there is a reasonable probability that the result would have been different if the evidence had been disclosed. Id. HN4~his materiality "does not require dem()nstration by a preponderance" that disclosure of the evidence would have resulted in acquittal. KyJe_~_Y-,--WbttleY,_~J4_U.._S.__119,_43~_J._31_L. Ed. _2d 4_9_Q,__U~S,-.c.::t,_J,55.2_Ll~9;?L Nor is it a sufficiency of the evidence test; a defendant need not show that "after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict." 1Q,-_Qt4_~!t-:4~}i, A reasonable probability is shown when the nondisclosure undermines confidence in the outcome of the trial. Id. at 434. In Nevada, after a specific request for evidence, a Brady violation is material if there is a reasonable [***36] possibility that the omitted evidence would have affected the outcome. Jtm~D_~~, _JJ.._2__Nev ._~LQJ.~_2J.JLP.!_2(L~tL692~. R-.9Q~Jt~_Y-,,__StatEh-J._LQ_Ne_v~12-.l.-J_ 1132, 881 P.2d L 8 (1994). HN5+In determining its materiality, the undisclosed evidence must be considered collectively, not item by item. Kyles, 514 U.S. at 436. "The character of a piece of evidence as favorable will often turn on the context of the existing or potential evidentiary [*67] record." Id. at 439. HN6'i'The prosecutor is responsible for determining whether evidence is material and should be disclosed. Thus, [**37] a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. See [ !,.1niteqJitate~u(-,1P.--9!Jr~<---4_Z.?_.u..!S..--L2ZL<;LtJJ)JHl-_96 S. Ct,_2.39~--.1~l-,- Ed. 2d 342 (1976)] ("The prudent prosecutor will resolve doubtful questions in favor of disclosure"). This is as it should be. Such disclosure will serve to justify trust in the prosecutor as "the representative. . . of a sovereignty. . . whose interest. . . in a criminal prosecution is not that it shall win a case, but that justice shall be done." BerQer v. United States. 295 U.S. 78. 88. 79 L. Ed. 1314, 55 S. Ct. 629 (1935). [***37] And it will tend to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations. 514 I!.s-,__~t_~!U9-:41Q, HN7+Due process does not require simply the disclosure of "exculpatory" evidence. Evidence also must be disclosed if it provides grounds for the defense to attack the reliability, Search - 1 Result - Mark Siffin Page 15 of 23 thoroughness, and good faith of the police investigation, to impeach the credibility of the state's witnesses, or to bolster the defense case against prosecutorial attacks. See5.14JJ,.S., gt!Et2.D,JJ.,445-:51.. Furthermore, "discovery in a criminal case is not limited to investigative leads or reports that are admissible in evidence." Jimenez, 112 Nev. at 620. 918 P.2d at 693. Evidence "need not have been independently admissible to have been material." CaIrigeLY., SJ:~~~J::t,..lJ2 . F,3Q4gJ,48 LC9.ttU:::.ir.J99Z1, cert. de n ied ,523l"J,S,.J1J.J,.J4Ql".!;!;t,.2<:J,.9.6J-l- 118 S. Ct. 1827 (1998). In HNB'i'sum, there are three components to a Brady violation: the evidence at issue is favorable to the accused; the evidence was withheld by the state, either intentionally or inadvertently; [***38] and prejudice ensued, i.e., the evidence was material. Strickler v. ~Le.e.ne,52Z l"J,S,.?J;iJ,119.S.,..Ct..J9_3Q,_.1248,..144.b,EQ..2d.286(19.99), Mazza n' s instant petition for habeas relief is a successive one; therefore, HN9'i'to avoid procedural default under NRS 34.810, Mazzan has the burden of pleading and proving specific facts that demonstrate both good cause for his failure to present his claim in earlier proceedings and actual prejudice.I'>IR.S34.,81QCJ). Cause and prejudice parallel two of the three Brady violation components. If Mazzan proves that the state withheld evidence, that will constitute cause for not presenting his claim earlier. If he proves that the withheld evidence was material under Brady, that will establish actual prejudice. SeeS.trj~J~!er:,._5?ZlJ,.S.2Q3.at_....,. 119 S. Ct. at 1949. [*68] Analysis Mazzan argues that whatever information prosecutors may have provided orally to his counsel before trial was inadequate under Brady. He stresses that only access to the documents themselves would have provided the range and detail of information necessary to fully understand the implications of the police investigation or to dismantle Warmbier's [***39] alibi. We conclude that Mazzan is correct and therefore that the record does not support the district court's finding that Mazzan was fully apprised regarding Warmbier. Further, the record and relevant law do not support the court's conclusion that the information regarding Siffin was immaterial. The state's behavior and arguments in this case have not always been consistent. At times, the state has downplayed the importance of the information at issue and has questioned or even denied Mazzan's right to receive it; nevertheless, the state now concedes that the information was material but maintains that it was fully handed over. The most obvious inconsistency is that former D.A. Dunlap maintains n2 that he provided Mazzan's trial counsel, McNabney, with all required Brady information on Minor's drug dealings even though in 1981 he refused to provide the same information to Mazzan's post- trial counsel, Flanagan, asserting that it included nothing exculpatory. Dunlap's testimony suggests that he did not convey the information to McNabney in any detail. [**38] First, because he did not consider it exculpatory, he had little reason to give McNabney a thorough accounting of the information. [***40] Second, if he had already provided the information in full detail and depth to McNabney, there would have been no reason to oppose giving it to Flanagan. Dunlap's concern that Flanagan wanted to conduct a "fishing expedition" is puzzling since Dunlap alleges that he had already disclosed the information in his files and neither he nor McNabney considered it favorable to the defense. Thus, Dunlap's refusal during post-trial proceedings to disclose the documents to Flanagan strongly suggests that Dunlap did not give McNabney all relevant information before the trial. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n2 In this context, the present tense is used to refer to what witnesses said at the 1997 evidentiary hearing on the instant petition. Search - 1 Result - Mark Siffin Page 16 of 23 - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Mills Lane also believes that he told McNabney everything required by Brady, yet before the trial he rebuked the police captain for providing the press with general information about the investigation because "it's the same as turning [police reports] over to the defense." This rebuke does not appear consistent [***41] with [*69] a thorough disclosure by the prosecution of the information in question. Lane is not sure if he told McNabney that the DEA was investigating Warmbier and Siffin, and he actually considers information that Warmbier was in Reno on the day of the murder of little significance. Dunlap similarly admits that he probably did not consider the information on Warmbier to be Brady material. Given this grudging view as to the materiality of the information regarding Warmbier and Siffin, it is evident that Lane and Dunlap did not provide McNabney with the relevant information in sufficient depth or detail to satisfy Brady. The district court found that the prosecution probably did not provide any documents to the defense. This finding is clearly supported by the record which shows that neither Lane nor Dunlap allowed McNabney to look in their file or provided him with copies of any reports. None of Mazzan's attorneys recalled seeing the documents. As Lane puts it, it was his practice to give defense attorneys a "synopsis" of information he considered relevant. We assume that the prosecutors tried to provide McNabney orally with the information they considered relevant, but it is [***42] clear that this effort fell short of satisfying Brady. For example, Lane informed McNabney that he had documents confirming Warmbier's alibi, but McNabney could not have questioned the authenticity of the signatures on two of the alibi documents without seeing them or questioned the reliability of the alibi sources without reviewing the police reports which connected the sources to Warmbier. Lane and Dunlap may have read the police reports and passed on what they considered the gist of those reports, but they could not have imparted a constitutionally adequate picture to McNabney simply because the picture was too subtle and complicated to be sufficiently conveyed in oral discussions. Moreover, it is almost inevitable that as prosecutors they did not peruse the potentially exculpatory information with the same incentive or attention that defense counsel would have brought to it. HN10+rhe United States Supreme Court has never held that the Constitution requires an open file policy by prosecutors. Kyles, 514 U.S. at 437. But providing defense counsel with copies of reports in a case like this would avoid the danger of prosecutors' "tacking too close to the wind," either [***43] consciously or inadvertently, by overlooking not only material facts but material implications and connections between facts. Unfortunately, Lane and Dunlap did not avoid that danger here. The state argues that McNabney knew all about the police investigation of Warmbier and Siffin as shown by McNabney's request at trial to question detectives about their investigation. We conclude, on the contrary, that the trial transcript really shows [*70] how little McNabney knew. First, McNabney's comments reveal no detailed knowledge of the investigation. Second, McNabney actually thought that police had gone to Hawaii to investigate, when they had never gone there. This indicates that his knowledge was based more on newspaper reports, which had said investigators would go to Hawaii, than accurate information supplied by prosecutors. Third, McNabney did not discover until the [**39] state's case was nearly complete that a police report contained a statement by Minor's sister that Minor had told her he was afraid because of his drug dealings. It is not clear whether this belated discovery was due to the state's late delivery of the report or McNabney's failure to read the report earlier even though he had [***44] it. What is clear, however, is that the prosecution did not inform McNabney that the sister's husband was a potential witness. Search - 1 Result - Mark Siffin Page 17 of 23 McNabney was completely unprepared when the state called the husband to the stand, and the husband's testimony largely nullified any benefit to the defense provided by Minor's sister's testimony. Dunlap's closing argument also suggests that prosecutors never fully informed McNabney of the evidence in question. If McNabney had known police investigators posited "a direct connection" between Minor's murder and his Midwest drug activities, it seems unlikely that Dunlap would have repeatedly asserted in closing argument, without apparent fear of contradiction: "There is no evidence [that Minor was killed over some drug deal]. The police were unable to find anything." n3 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n3 Mazzan asserts that these and similar remarks made by Dunlap were intentionally false and misleading. Since Mazzan's conviction must be reversed due to Brady violations, we need not decide this issue, but if the issue required resolution, the remarks would certainly warrant scrutiny. Cf. !)_,_S,__y,j,.lQe~bJJk'f(IJL,tLf,_Jc;LJJ,_QLJJJL6.jl~tCI[,-__l22_3) (it is improper for a prosecutor to question the existence of facts known by the prosecution to exist). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***45] McNabney and Mazzan's other former attorneys all testified that they did not see the police reports and were unaware of specifics of the police investigation. For example, it was related to McNabney that "there may have been a possibility" that Warmbier was in Reno at the time, but discussions with the prosecutor satisfied McNabney that Warmbier's alibi was solid. McNabney consistently states that he does not recall ever being told that one person (i.e., Tim Beck) had placed Warmbier in Reno near the time of the murder. Finally, if McNabney knew in any detail the information in the police reports, it is impossible to understand his failure at trial to cite or use it in any way. Dunlap and Lane both say that [*71] McNabney considered the information unimportant, but this cannot be reconciled with McNabney's statement to the trial court that "if we can't get into [the police investigation of Minor's drug connections], we might as well end the whole trial right here." Moreover, it is unconvincing to assert that a defense counsel would have found the information unimportant: the information was important, as the district court ruled n4 and the state now concedes. It appears that McNabney [***46] did not consider the information in the police reports unimportant; rather, he accepted the prosecutors' assessments that those reports were unimportant. Such assessments do not satisfy Brady. See United States v. Shaffer. 789 F.2d 682. 690 (9th Cir. 1986) (the HNll'+'state cannot satisfy Brady by informing defense counsel of evidence while telling counsel that the evidence is of no value to the defense). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n4 The district court's ruling in 1982 and its latest ruling were also inconsistent. After an in camera review of the District Attorney's file in 1982, the court found nothing exculpatory which needed to be handed over to the defense. In 1997, the court (the same district judge) found that the documents at issue had material exculpatory value. No explanation for this inconsistency is apparent. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Search - 1 Result - Mark Siffin Page 18 of 23 Thus, the record as a whole shows that the prosecution did not provide McNabney with favorable information in the amount or specificity required by Brady. The district court also did not apply [***47] the proper standard in assessing the materiality of the evidence in question. It considered the evidence in isolated bits and found that many of those bits were not exculpatory. HN12+rhe proper question is whether evidence is "favorable," and this "will often turn on the context of the existing or potential evidentiary record." Kvles. 514 U.S. at 439. Undisclosed evidence must be considered collectively, not item by item. Ic:I.at4~6_, The district court, for example, concluded that the fact that one of Warm bier's alibi witnesses was connected to one of Warm bier's drug associates was not "exculpatory." [**40] That fact, however, is favorable and material information under Brady because, along with other weaknesses in the alibi evidence, it casts doubt on the authenticity of the alibi n5 and_ supports Mazzan's theory that [*72] Warmbier is a viable suspect in the murder. It is also further evidence of the insufficiency of the prosecutors' disclosures to McNabney. Despite its dubiousness, Lane accepted the alibi and assured McNabney that it was sound. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - nS As Mazzan asserts and the state effectively concedes, the alibi appears false. None of the alibi documents were sworn statements. Signatures on two documents, purportedly by the same person, Nyland, are clearly dissimilar. Both sources for the alibi were connected to Warm bier: Nyland was his girlfriend, and the other source was apparently the girlfriend of Carmichael, Warm bier's drug associate. Moreover, according to Mazzan's investigator, Nyland does not remember writing her purported alibi letter or recognize the signature on it. The investigator also states that Nyland and Warm bier now admit that Warmbier was in Reno when Minor's body was discovered (consistent with Warm bier's admission to Beck). Thus, the alibi evidence supplied to Lane by Warmbier's lawyer was, to say the least, vulnerable to challenge. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***48] The district court thus erred in failing to discern that without including specific details and access to the written reports, the prosecutors' oral disclosures were constitutionally inadequate. The district court also concluded that the evidence pertaining to Siffin was not Brady material because it did not "sufficiently show" that Siffin was in Reno near the time of the murder or that Siffin's involvement "exculpated" Mazzan. Again, the court failed to consider all the evidence in context and erroneously required the evidence to be definitively exculpatory to be material. We conclude that the evidence as a whole regarding Siffin was favorable to Mazzan's case. The DEA suspected Siffin, who lived in Bloomington, Indiana, of being "a major cocaine trafficker." Warmbier told Mazzan's investigator that he and Minor worked for Siffin, who was the "brains and money" behind the operation. The three apparently went to Hawaii together about three weeks before the murder. According to one of Minor's friends, Siffin once "slipped some cocaine on" Minor, which highly upset Minor. Shortly before his death, Minor told another friend that he had a big drug deal pending on Wednesday, Thursday, [***49] or Friday (he was killed on Thursday) with a "Mr. Big," a large narcotics trafficker from Bloomington, Indiana; this person had once "burned" him and was an "asshole"; this person knew how to get drugs through Hawaiian agricultural inspections; most of the money Minor had belonged to this person; and Minor at one time apparently owed this person about $ Search - 1 Result - Mark Siffin Page 19 of 23 6,000.00. Months before his death, Minor told one of his sisters that he had a debt and needed money; two weeks before his death, he told another sister that he was afraid because of his drug dealings. Around the time of Minor's murder, Siffin "went underground," and drug investigators had not seen him since. This evidence casts a rather sinister light on Siffin and was therefore favorable to Mazzan's defense and should have been disclosed. Siffin is likely the "Mr. Big" whom Minor was planning to meet around the time of his murder. Relations were not good between the two men: Siffin had manipulated and endangered Minor before, and Minor disliked Siffin as a result. Minor worked for Siffin on consignment and may have owed him a good deal of money at the time of the murder. Mazzan has now uncovered evidence that Minor stole drugs from [***50] Siffin. n6 Finally, Siffin dropped [*73] out of sight right at the time of the murder. This evidence does not establish [**41] that Siffin was the murderer, but it was certainly favorable to Mazzan's case. We conclude that it would have: 1) contributed to reasonable doubt as to Mazzan's guilt; 2) provided a basis to challenge the thoroughness of the police investigation; and 3) provided a lead which the defense could have pursued to possibly gain further favorable evidence. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n6 Mazzan's investigator reports that according to Warmbier, Minor stole drugs from Siffin and Siffin was capable of killing Minor. Mazzan also has information that Minor lost $ 6,000.00 and a large amount of marijuana in a burglary not long before his death. The district court excluded this evidence from the 1997 hearing because the state did not possess or withhold this evidence at trial, and the state argues that this court should not consider it. However, this evidence is relevant to establish the materiality of the evidence which the state did possess. "The character of a piece of evidence as favorable will often turn on the context of the existing or potential evidentiary record." Kyles. 514 U.S. at 439 (emphasis added). The state must disclose "potentially exculpatory evidence" if it is material; it is up to the defense to deal with "problems concerning the extent to which the evidence [can] be used or expanded upon both before and during triaL" Jimenez. 112 Nev. at 62~18 P.2d at 693 (emphasis added). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [* * * 51] We have already discussed Dunlap's refusal to turn the police reports over to post-trial counsel Flanagan as evidence that he did not disclose sufficient information to trial counsel McNabney. This post-trial refusal also constitutes a Brady violation in its own right. In its order denying Mazzan's petition, the district court found that the information in the reports was exculpatory but that McNabney had received the necessary portions of it. The court did not consider that the state withheld this same information from Flanagan, nor have the parties addressed this as a distinct issue. In moving for a new trial in 1981, Flanagan specifically requested any records the state had of Minor's drug dealings. The state refused to provide them, and the district court at that time ruled in favor of the state. The court has now found that the records contained material, exculpatory information--information which the state refused to disclose in 1981. To sum up: the record does not support the district court's finding that the state fully apprised McNabney regarding Warmbier; the court erred in concluding that the information on Siffin was not material and that McNabney had no right to [***52] it; and the state also violated Brady when it refused Flanagan's post-trial request for records on Minor's drug dealings. We do not conclude that the prosecutors in this case acted in bad faith. HN13 +However, the failure to disclose evidence favorable to the defense violates due process "irrespective of the good faith or bad faith of the prosecution." 6Ii:!QY,JZ~ U.$_,gt~Z~ see Search - 1 Result - Mark Siffin Page 20 of 23 also Jimenez. 112 Nev. at 618, 918 f*74] P.2d at 692 (the prosecutor's motive for withholding exculpatory evidence is immaterial). The final question is whether the withheld evidence was HN14'i'material. When the state fails to disclose evidence which the defense did not request or requested generally, it is constitutional error if the omitted evidence creates a reasonable doubt, i.e., if there is a reasonable probability that the result would have been different if the evidence had been disclosed. Jimenez, 112 Nev. at 619. 918 P.2d at 692. A reasonable probability is shown when the nondisclosure undermines confidence in the outcome of the triaI.Ky:lgs~_511JJ.,::i.itt 434. After a specific request for evidence, a Brady violation is material if there is [***53] a reasonable possibility that the undisclosed evidence would have affected the outcome. Jlmgne.z;, 112Ng""mgtJ;19,_~18 P,_2J:Lc:ltQ~2,_, Though McNabney made only a general discovery request before trial, he also tried to examine witnesses in regard to the police investigation but was thwarted by the state's objection. n7 Thus, he made "the functional equivalent of a specific request for the information from the state." See id. at 619, 918 P.2d at 692-93. And Flanagan speCifically requested the withheld information. Therefore, the standard is whether there was a reasonable possibility of a different result. We conclude that even under the reasonable probability standard the withheld evidence was material. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n7 When McNabney sought to cross-examine the police witnesses on their investigation, the state objected that such evidence was irrelevant hearsay, and the district court agreed and excluded the evidence. This was error because it is a permissible defense tactic to attack the reliability, thoroughness, and good faith of a police investigation. SeeKy:tE;!_$L21~_Jl!_~,_~442 nJ_~L~JA5_~_51. HNl5'i'Evidence "need not have been independently admissible to have been material. Evidence is material if it might have been used to impeach a government witness. . . ." !:;gJIige.r, 1:32 f,3ctat481. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***54] There was sufficient evidence to convict Mazzan, but it was not overwhelming. Mazzan certainly had the opportunity to murder Minor, and he initially lied about being present when the murder occurred, but there was never a satisfying explanation of Mazzan's motive, and he had no violent background. The state said the motive was robbery, but the quantity of drugs and money Minor had [**42] when he was killed was never clearly established, and the state's closing argument conceded that motive presented some difficulty. The state depicted Mazzan as a calculating murderer who took careful actions, like changing his coat and shoes, to conceal his identity, but it was hardly careful for Mazzan to commit the murder when he knew that three people would be able to place him with the victim at the scene of the crime shortly before the [*75] murder. The evidence in the police reports provided support for Mazzan's defense that someone else murdered Minor because of his drug dealing. It also provided a basis to impeach the thoroughness of the state's investigation of the crime. We conclude that the evidence was material and the failure to disclose it undermines confidence in the outcome of the trial. n8 [***55] - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 In its statement of facts, the state asserts: "Ultimately, Warmbier and Siffin were eliminated as suspects in this case, primarily based on the efforts of the DEA." The state cites Search - 1 Result - Mark Siffin Page 21 of 23 Det. Teglia's testimony at the evidentiary hearing in 1997 to support this assertion, but nothing in Teglia's testimony or elsewhere in the record supports this assertion. Although Mazzan's counsel asked Teglia repeatedly if police ever specifically eliminated Warmbier and Siffin as suspects in this case, Teglia never answered with a simple affirmative; in Teglia's view, the evidence against Mazzan "eliminated" other suspects. The record supports Sgt. Stock's view that Teglia and Penegor were frustrated in their Midwest investigation and never eliminated all other possible suspects in this case. After returning from the Midwest in February 1979, Dets. Teglia and penegor reported that before their trip, the investigation "had reached a complete standstill," but now they had "new areas. . . establishing a more viable case for the prosecution." They had even asked authorities in the Midwest to help continue the investigation. At the time of that report, Mazzan had already been in custody for almost two months, and the record does not reflect any significant developments in the evidence against Mazzan after the report. It is clear that at the conclusion of their Midwest investigation, contrary to their later statements, Teglia and Penegor believed their efforts had been productive and they did not consider Mazzan to be their only suspect. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [* * * 56] Other claims Mazzan contends that he received ineffective assistance of counsel from his trial counsel. We need not decide this issue because of our conclusion that the violation of Brady requires reversal. Mazzan also lists six other claims which he raised in his petition and which the district court did not address: other instances of ineffective assistance of counsel; destruction of material evidence by the state; conflict-laden counsel; questioning by the state while Mazzan was held without a probable cause hearing; an unconstitutional instruction on reasonable doubt; and improper sentencing instructions. He does not cite the record regarding these claims, does not discuss their merits, and does not address whether they are procedurally HN16~barred. Contentions unsupported by specific argument or authority should be summarily rejected on appeal. See )QO~S v. State 113 Nev. 454 468 937 P.2d 5.> 64 .l1997)' Maresca v. State . ., "....... ........._.............__..______'J_...._.......___.... ,., ,.,___"__..__.._._______I_____._._.J_~.....__~__.____._....___..__n._...__.._ _.._., . "-J___.__ _n'"' _n__._'._.___._n_.. _I. ____....__.___.._____..__.___..________._..___..'...1. 103 Nev. 669. 673. 748 P.2d 3. 6 (1987). We therefore have not considered these claims. [*76] Remand to the same district judge Mazzan claims that his case must be remanded to a judge other than District Judge Breen because [***57] Judge Breen was "indifferent" to Mazzan's claims in the instant petition and does not respect the federal constitution. Mazzan cites the trial transcript from another appeal decided by this court, quoting comments made by the prosecutor in that case which were critical of the constitutional rights provided to criminal defendants. SeeM.iQ.c!J~tQ[LV-,- Stat~J. 4..Re'i,_H)8~JJ,_Q1J_.U.l~.n_._Q~68 J?--,--4Q_29.Q.__3Q_5.J_l.t2.lJ~_~..Ll.9..9Jn, cert. denied, 120 S. Ct. 322. 145 L. Ed. 2d 251. 68 U.S.L.W. 3249 (U.S. Oct. 12, 1999). These comments were made in Judge Breen's court, and Mazzan claims that Judge Breen did not respond to them and thus in effect adopted them. We conclude that this claim lacks any merit. We are confident that if any further proceedings are necessary in this case, Judge Breen will conduct them in a competent, impartial manner. Determining whether retrial is permissible Because his conviction resulted after the state withheld exculpatory evidence and he has been on death row for almost twenty [**43] years, Mazzan asks this court to vacate his conviction with prejudice to the state's right to retry him. He says it would be [***58] Search - 1 Result - Mark Siffin Page 22 of 23 unfair to require him to defend himself with stale evidence. We decline to make that determination and remand this case to the district court. On remand, if the state chooses to pursue the murder charge, Mazzan may raise this claim in district court by the appropriate motion. CONCLUSION The record shows that Mazzan's counsel never received full disclosure of material evidence favorable to the defense. This violated Mazzan's due process rights. Mazzan has demonstrated cause for not raising this claim before and prejudice. We therefore reverse the judgment of conviction and remand for further proceedings consistent with this opinion. n9 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n9 The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from the decision of this matter. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - CONCURBY: MAUPIN CONCUR: MAUPIN, J., with whom YOUNG, J., agrees, concurring: I agree that Mazzan is entitled to a new trial. The information obtained following his conviction and recapitulated by the majority comprises a body of circumstantial evidence, which undermines [***59] the original outcome below. Thus, a jury should hear this [*77] evidence in the interest of justice. However, to the extent that the police and members of the Washoe County District Attorney's Office stand accused of misconduct by Mazzan, separate comment is warranted. In the light of a retrospective analysis, the newly disclosed evidence does carry a certain persuasive force. This notwithstanding, we should remember that the investigators and the prosecutors were presented with a substantial body of highly probative evidence tying Mazzan to the murder of Richard Minor. Mazzan was present at the scene of the murder at the time of its occurrence. There were no signs of forced entry by other interlopers at Minor's residence. Mazzan was covered in Minor's blood immediately after Minor's homicide. Bloody shoe prints consistent with a pair of shoes Mazzanhad been wearing were found at the crime scene. Blood was found in Mazzan's vehicle after he fled without alerting the authorities. Mazzan failed to provide any information about the incident when contacted by Las Vegas police. Mazzan also lied about the events during his initial interaction with investigators in Reno. Finally, it was only [***60] after police confronted him with physical evidence incriminating him that Mazzan ultimately admitted to his presence at the crime scene. The evidence that Mazzan claims exonerates him will only raise inferences that mayor may not sufficiently undermine the considerably damning evidence against him. The prosecutors and investigators looking at the case prospectively could reasonably have determined that the evidence in support of Mazzan's theory was not convincing. It was not misconduct for the police and the prosecutors to subjectively conclude that the actual perpetrator was in custody and properly charged. Likewise, it was not misconduct under the then existing procedures for the prosecutors to make tactical decisions based upon their interpretation of the quality of information available, their interactions with the police Search - 1 Result - Mark Siffin Page 23 of 23 and their interactions with defense counsel. Certainly, the provision of a summary of exculpatory information to defense counsel and the statement by that counsel that he would not be contending that one of the other suspects had committed the murder was sufficient for the prosecutor to have concluded that further "Brady" disclosures were unnecessary. Finally, [***61] a theory that other persons may have been involved does not, of itself, exonerate a defendant who ultimately admitted his presence during the commission of the murder. Many of the decisions by these prosecutors, while arguably subject to some criticism in hindsight, were most likely born of a true [*78] belief in the validity of the original charges. [**44] Thus, the remand for another trial rather than a vacation of the charges is appropriate. Source: L~9I!! > Ca~~_:_lLS., > Federal & State Cases, Combined Terms: mark siffin (Edit Search) View: Full Dateffime: Wednesday, December 24, 2003 - 9:37 AM EST * Signal Legend: . - Warning: Negative treatment is indicated A - Caution: Possible negative treatment .. - Positive treatment is indicated 0- Citing Refs. With Analysis Available .0 - Citation information available * Click on any Shepard's signal to Shepardize@that case, About LexisNexis I Terms and Conditions Cooyriaht @ 2003 LexisNexis, a division of Reed Elsevier Inc, All rights reserved. rn >< ::r cr ::;: ...... ~ : : - - REPORT OF INVESJ IGATION ... av: Thomas H. Chown AT: Special Agent Indianapolis, India o o aD o "0 Page 1 of 2 4. G-DEP ICENTIFIER 'RCGRAM CODE 2. CROSS RELATED FILES 3.. FILE NO. FILE 6. FILE TITLE HAESTRALES J Gus Peter et a1. 7. 0 Closed 0 RlOqueshId AC'tion Compl.tIId ~on Requ~ By: 9. OTHER OFFICERS: 8. CATE PREPARED ~i 1D. REPORT ~E: Reque~'t For ~nh~rT'.;npo.,.. TTt-Fn"'"'l'IH,"'1.0Y9 ~Y9tf 'R~,"l-;:ng D"'co..-ds of 'ru: a>- DETAILS: 1. Reference is made ~o-DEA-6 by S/A ,Laurence M. Lillig. dated Nove~ber 8~ 1973, in Indianapo1is.-1ndiana, concerning background information on the MAE COMPANY.~ . 2. Mark SIFFIN~ suspe~~ed of being a major cocaine trafficker, presently residing" in Bloomington, IN. SIFFIN is a, partner in the 1~ COMPANY, ~hrough which he appears to be funneling large amounts of , money. in order to reinvest the funds in Iegit~ate business areas. ..3. On August 21~ 1978, SIFFIN purchased a Ford pick-up truck from Dave Waggoner Ford, Martinsville. Indiana. A review of the records of this dealership show twp payments for this vehicle, an initial $300.00 payment in cash, and a subsequent payaent of $10,312.00 by checx, drawn on the accoun~ of ~L\E COMPANY. Dave Waggoner Ford was able to verify that 'this check vas from a California bank, but was unable to supply the exact bank. 4. A review of the toll telephone calls placed to California, on August 21, verify that :~~ CO}'fPANY'S records of Dave Waggoner Ford shows two telephone number (714)558-2082" in Santa .~na, 1978. These calls are believed to be to bank 'accCnmt would' cover the $10,:'312.00 check. . .' 5. It is requested that the Los _~geles District Office obtain ~elephone subscriber info~ation on" (714)558-2082. It is further requested that the Los Angeles District Office, contact the bank it is believed that number is subscribed tobTJ and obtain all b~nk records concerning l-IAE cm.U'ANY, including, deposit slips, all outgoing checks, and any other pertinent information, from ~ray, 1978, until the present. . 11. CISTRIBUTION: 1X:SIGNA-TURE (Agent) i) (/-"'{ : REGION I J~~.~,._~.."::. ~ .~:'....:__ ~. ,,, .. CIc;-rRICT L 14. APi'-fiO~E' am. end tf ;. . '0 OS Angeles District .rJ/t"t/!,1. ,': (.' / ...~. -;,. ff' ,-f {' I r /1' ':t II ./.'..... :.I~'.: ""', (.-!A .\ OTHER. 0 1Ce ! I'~ ~.::.",.V""- I'''' . _ ... CQ~~,~g T~.~~~~_~~ ~~11 ~ ~ __.__ n~ ~ ~ _:rI - - ...-'-...1""- ~~ ~~~) - 6HQ- EUE- Di reet ." OFFICIAL USE ONLY , CRUG ENFORCEMENT ADMINISTRATION ~ ~ U ~.!:." ~~'Y fO~~: D'ntc ::r::l.:2rcc:= ~.d::-~~""==- Nether 11 na:r ita CDUt=U =-7 be diae~ outAd. ihAo 1I.&r:.:=T to whlclllo&:cd.. 13. DATE /f'..),. 15. CA TE . /II, ~.. i~-"Z..-1-7'8 \ c:) r__u'" n=_&_=_. ~rr- ~i. _~ ~.; ,.~-:::.' ~.~ >:;j,:;, -" *~.~., . .~~L- -"'104'';'" !~.:. ~ :-(~ ;. :.::,.... .:-t-... ~. .... r:. .'! .~. . ,", .f' ,. ~:: f ~. . , 1. FILE NO. REPORT Of INVESTIGATION' (Continuation) - GFI.2-78-4019 3. FILE TITLE 6a OFFICIAL USE ONLY DRUG ENFORCEMENT ADMINISTRATION This rrpon is ih~ llrOll~rty of the Orn,: Enforcel'Dent Adlniainratioo. Neit.her it nor 1tS. contents mal" be dissemin.2tr-d ~'U'hi"'. ..... ... _____._ __"'~_1.. Page 2 -.. -... -.-.. MAESIRALES, Gus .'.~'~ -- --. .....- . .1':--~" - Pe.t:er,,'.!;et:~j~ . "~':~-': ~~~~~ 2 of '. PROGRAM CODE 6. DATE PREPARED PHYSICAL DESCRIPTIONS: 1. Mar~ SIFFL~:~ddis 1901506. ~ ,~-- -;:~~rIt~ -- ..... -". . .- '~:~:~ii :_i~.-::':-:::~~.:=: : . ":'E~::~~.;.;.~~ . .'~ ,.. . ~,;.;;,.:,. ...' ...:. ':.': -.:..... '. . to. . ".'''".p:oo . "'_'_W' ".,'0. ,"~'~~ . .:..:~- ~..._- .. .. ~ ..... ." ;.'.....: '.:." ........ .. i.~~~~5~~ .:..:......~.~..:.: ........ ".- .:..",,". ..~.. ., .';': -. ...~ EA Form eb.19761 2. :.lAB COMPANY: "1faddis .negat:ive. .' , \ \rt m x ::T C' ;:::+: 00 1, ~"OGA.u.I COOl! 2. CROSS I'IILATIiD FILliS 3. FI"'! NO. flUE GFI2-7S-40l9 4.. G~E." IDi;NT~"'~ L IVI · . . Special A~n~ AT: Indianapolis. Indi CB-77-XOO5 6. FlU TITUi 7. 0 C10Md 0 R~...-d Acdcla c:ompcewd ActiOl\ R~_d 8." 8. OTHER OFFlCERSI S/A L.M. Lillig, Monroe Co. Dep. Sheriff David Platt 10. ""'ORT REI Intelligence Info~tlOD OD P~ed GORDON, et &1. o o a 0 o o Gus Peter MAEST:RALES . .. DATI! I'FlUARED Oc~ober 26, 1978 DETAILS: 1. Re!erence is ~de to DEA.- 6 by 51 A Bl1i$ A. DEAN, dated . September 19. 1978. in Jacksonville, Plorida, concerning ~ubsc:riber infamaticn.. .. 2. Information in the abov.. reEctrellcaci DBA-6 indieate,sthat Mark SIPPIN~as ...d. Jllmerous telephone c:all.s to Fred GORDON~. in Melro&e, Plordj.a-. ~ORDON is alleged to be connected with . ~ David CARLIl.1.frlaJltxation, a multi-ton -.ariluu.na .rraffickiDI ~oup operatinl ill the Gainesville, Plorida.. area.: . 3. Investiration by Cai118sville County Narco~lcs and Organized Crim. Unit has idcmtified Dpid CAlU.I as the owner of the Bowery South Clothing Store,W"fOS If. University AveJlue, Gainesville. Florida. CARLI is alleged to.have sont $S~O,OOO.OO frOlll Gainesville, Plorida, 'to San Jose, Cosu Rica, 1l0S't likely to Jon Michael HUNTER.~ review of phone ~oll$ fram ~e Bowery South Clothing Store hu shown several calls tG.. Blooming'ton. Indiana, telephon~ 1\lDlber (8-12l:S~i4..~520. This number isl.t.sted to the Bovery Clou1in~ Store,"'I"06 E. I1rkwood, Blooslugtol1.. Indiana. 4. Records of the Indiana Seaet3.Ty' of State Office show the iovery Inc., B~l1&tCD.. Indian,:. 'to have _ thefal1D~ dirKtors: Tam E. BRENN~~, Fted GORDON, ana Dale Xil11am JONES. s. Inv~stllation has shawn that Fred GORDON is ori,ittally fro. the Bloo~ington. Indiaua area. GORDON has been prev~ously mentioned in DEA case files, Ceneral Pile: Fred GORDON and GB-77-XOOS. Records of the ~nroe County, Indiana ~ecorder5 Office, aloDJIlington Indiana,. ~V'ie'Wed. b S t. D PI tt: 0-" , t. DISTRIBUTION: 12. SIGNATUft" (A;GnU ftEQION Miami \ .. . 1~. DATE "I. i. DISTRICT JacksonVille, FL R. O. 'Af""~ED (NM\~'.n.n t ,...", . Ii" ;'1" I , U.J . . '~'I' ~~cago .nt.ell genee ~:.'" .~.'.." \( , ." '.:i''4-',",' tli.DAn (l 'I ,/!., '. . I:,.. OTHER DEA ,"om. 6 (Dee. 1Q~61 - OFFICIAL use ONL v DRUG ENFORCEMENT ADMINISTRATION ~ npon 14 ch.e propctJ' ot th. Dt1lI Ji:~"m.ad A~ttGa. HakIoM Is _ ~ eo_It...,. b. .u..1IIL1Dal... o~ tha "&11.C7 to .h.i.c& f,oapaot. c,," a - DIIrtrIct 0.. \<:::>-L.'l-"~ . \ \ _ 0"1..-'"\ ~ ~ \~ .~. ~~:29.2~ .: 2:04PM....... INDI~IS DO " . "'!..:, .- - .. ~ I. '.'f": ...... : :~.::_1'lO.69e:.t'.} p..&n.~..\',~'~: \ , . '. ..r.' ............. ", os ........... __,' . .. '. ....j; .. )';rrv~ -0;, I,\I~. .~. r- " . PI ". &.~'" ~~~~.'J, ~.~ '.:i<:-.> ~ { ..' ..:. "-.~:"" '. . " .... : -.. ....... " "!~~"." : ';C." . .. .. ..- ~ ........ ~-, .;;. ,\_- ... :. . REP'ORT OF INVESTIGATION (C"n.tirul.aJin) IlAU 11..1; ITL.E .~.' OC'tob~~ %6 ~ 1911 10lNTlfle:1l ." '. :. *~ ....:.:,~:..~7': I"A(I~ Z' 0" 2 "ll.& NUI...IA Gus ht.er RABSTRALES GFI2-7a-~019 . ,.,.OGRAIII (;00 . th:.&'t 'reel :anct .lane GORDON cnm. approxiJU'telT IS acres m Iu.i:a . TO'IIllShip, Monroe CoW1~. Indiua. On.1121I8 16. ]'17S. Preel GOlm01i reec!y..a . perJlit to bld.lj . log cah:1Jl of 1..10"0 'squr. fa.~_ ri~ a ba.seJleJl~. en tills prcpertT. 6. Ft2rthe'r "Y!h 0% HQnroe County' records slow.. utat10Jl wt Prei GORDOli had puchased 200 aC'l"H ill Monroe County. I~'is':,,, lteUevad t:ha't ~h~ rest .of 1:he pr~rt;.y is fa 'the fo1~: :.' .John F. DHaI.~. Do~lu :amulS. aDd 'RasseU 14. SODIIM'. .A.ttaCltri to. this report are plJl.tt copie.s for the 'ahOY. properties. . . ~ . PHYSICAL DESCR.I-PTIONS: 1. Hark SIPFIN:Vf.Taddls 1907506. z. D~Tid CARLI:vNnddis '126%42. 3. Jred GORDON:/Haddis 1733S1S. ~. John ~~~4ddis negative. . S.. Ro. Douglas !mumsr";r~s '718864. 6., Russell L. 'ScmtIDT:~a.dciis negatlye. 7... Tom E. BlUSNNAH ,....-sOB. 9[9/45, SSAJJ Z16-'(Z-6218, an'8'st:ed iA Blo~ton. Indiana # on 7/23/73. for possession of marihuana. 1'1.addis negat.ive. S.. Dale William JONES~DOB 1~/1SI4S, s5AN 310-52-8889. ~ested in Bloo&ing1:.on, Indiana.. OD 7/'Z.ITJ. for possession of marihuana. ~addis nClat1ve. . . 9. Jon Michael HUN'I'ER:"Naddis 112Z01.. ~ OFFICIAL USE ONLY Drug Enforcement Administration Department of Justice Thil upon Ia ,h. prap.nv .f ~. Dru. enforcem.n' Ad...lnls,ra,ion. ~alth.r i, nor it'l c:o"unu ..., bo 1I1"...lfta,.d aunle;,. ,ha agancy '0 which laall.d. . .COpy DEA Forlll 51 (Au,. 1973) - \ \ m x ::T C" ;::+ co III III i: o u ,...--..... .0( C.'~ .' )( w .. J. INSP. C',.I. D. '~~""AUD . .. ._~ ',"C5 .....'..~SON .; .....s. '.."0,.. \ITa THC" ''W:CIAL 'SCIIV. IV. CHILC ~. n/ I ';nT II . ,.OUNa - ;COJlOS "(.\~C"TY SCCT. ":CH..~............... ~. ; ."--/ I. ". .AWUN'. r:ATtOH!i IL.._ ........ I ~~. I 'm~L'1 ~ ..UN! 'tOL ;Q~O I FOllOW-up INVESTIGATIr ~ND /'., RENO . pUPPLE:M!:NTAL IN'FOIL.'\1AT.h.,__,REPORT POLICE D~PARTMENT .I. O'''CIHAL Cltl..e .. c:U",,.,CATIOH (UNLC" CHAHGca .Y SUBSCQUCNT RCI'O"T, NRS 200.030 Hanicide ~. CHCCIC ONLT OHE Box. ;:J THIS IS THr 'OL..l.ow.u.. IItE.-OItT ." U"IT AS! LX S&.lP""-C"lE'NTA~. INrO"IIIATION IIII'l:rOJlT ~. c:O.....U..HAHT COR'G''''''&.. cOUP. U"1.I:.. CHANGLD IIY .U.SCQUENT 'U:,..OItTJ ,.: I~~;; :;.~ .. II. aATE 0,. O"'CINAL I ri/22/78 REPair Richard C. MIroR (deceased) ~ II. c.....HGe CIt'''1: .. CLA'.,nCAT'OH TO, "'; .~ 7. CHANGE HAMe . ADDRW:SS 0... COIfP'1-.AINANT TO, .. .. :.... - -." :~.. ~.~":c .c~ ~HIS "a:~~..,. . ~ :'7./5/79 ..'. ." u....~_ -. -- .-.'.:" .. """i:. o~, I',R~~~U '. _. ..':.:".To'.-.~'~~;;~~,:r:27~;'~ _: .. ~~;o~~~'~'~~lf~'.~~.~~.~foH ~': ~:~~,o~.I:ItY.. :~_O~,R~,'.S:~' .~.~~.- ":>~:-:,.;~:~~~':;~Er:~~A.~~E "'~~;'E:RTY ' . fS. CONOITfON 01' REC:OVE"EO "RO"I:RTT .-., '. '.. '__." ".', .. :....::~f"...i..:.,"-: =/ '. .:,.,...-:,:-.'. ~.: '~:._.. ... .:" .:...~..:,.,"i.<:;~.:;:;':,..:-. ::{,~;-;'::;,,:,~,~,,::~:;-:':,o _.. II. YA'-U~ 0": LOSS ... .' ~- .. . -'" ... .. ...~....~_..._...- -, .."a... ... ~ 01' ..Ec:~~ER~~ "!'O"EItT't:~.:::.' '~'.~~.~?\~",:":.~E ~ECo.~~nJ... -. ;:.:"..-:- "... ::: .... .. '~',",:.-- ...,;... I fll. ~.y WHO.~. ~.E~~:~~~;~~'i:!~~~~:;~~:.:.~;~<:,.~;~~~~ '7. , ".. '--'. -- - ..... THIS SECTION TO BE CONl"LETED ~:': ~"':r. R.CSl'OHSI8LE 1'0" THE IHVC":T1GATI~~. ~..,:;i,;:;~~',~",. . ..';-', "':; ., :::::.:::::::::-::.;,.= .'::.ig~~~tif~r#~"f.::;::::=;<.~;~'~/~;;~)~1i~~l*;;;:~; CONI'LAIHT "C,.USEO BY O.A.....r. '.-. ... '.0....0 TURt'~ED.C?~EJI.T!?~".It.ITA"Y ...UTHORITY ., .', "... ,.0 ,TUR'!IE:".~,OYDt:.TO .iuV.......Un.O'WITt "ROSECUTCO 1'011 ANOTHCR Or-r-ENSE 0 "OUND I'''C''ERTY RETURN CD TO OWNE.. ' - '0-. JUYOftLE. 'c:OU;::;;~ ciTATiON "';':'.:;. :~"';~:f::~ON ....... ., .,~.. . __.. ..~:...: g :;:~:I';I':::Rc;ED HONC ..... -. _. '. :.~g :;:~~;';=A;oO~;~t:::~,~~~~:~~',;f o a o o .0 o .8. H"'M~. 0,. eUS"ECTS RES~ONSJ8LE . .., "-/ -. .'. I I , ..;~.:- SEX.RACe_D.D.S. .. .. A.NEST NUMIII:JIt .' . '''1 I .::.:~~~~~~~~ .H~~~~ I,.INSTRUCT'ONS: L'ST AND OUC:R!"E ACOITIONAL SUS"ECTS . II' fN CUSTOay USC OUTLINE ABOVE ~...O ST"'TE "IH CUSTOOY." LIST NEW Wf""~.1:S HANE. AOD"ESS ANO ..HOtlE NU""~". 1"0" AOOITIONAL ..ROl'ER.,., 'NVOLVCO. 'TC"'ZE. ..1I0l'E"LY OESC..fBC. AHO SHOW VALUE. SUBJB::TS : 1) Sheriff John VAN C21l-U:>, C1.ainront County, aria, phone 513-732-2231, Batavia Ohio. 2) Capt. PENNIN:iTON, C1airrrcmt County Sheriff's Dept., ~tavia Ohio, phone 513-732-2231. 3) Det. Steve FISCUS, Indiana University Police Cept., B1oamington~diana, prDne 812-237-4111. 4} Sgt. Duve PIA'IT, l-bnroe County Sherifffs Office, B1a::rrri.nqton Indiana, prone 812-332-1111. ." CHle, DE'.I7UIS : Fran the second of January to the present Sgt. Stock, at t.l-:1e request of Cet. Nayne Teg1ia and Cet. Ibl::ert Penegor, c....c" - contacted the above people and their respective depart:rne.'1t: .TH I ~ ~~.-.~, requesting infonnaiton, particularly telephone numbers ~I that were on the final 0..0 bills sent to Ri.chard l1inor' 5 These are phone TT't. residence at 906~ !bloolrn Street, Reno. n:....-:!....~=s ~"..:!.t ~:..:lc r.ot be e.~lained by relatives. L \. \ 0,.111'.. In the ~- f 2-7':"'4-~l'lu r t. TT" _ ItlC>OorT J a. ~~C:;. t. &llT.. CClPle. .~ OI"P'ao.. a ..-0 = . CCNTINUAnON 1U:Po.ar .~ .. Of....... t" "'CUI "- , . "EHO P'OL'CI; D~A.T"OcT U -< .. CO"~'''_r. ...... .EJl:......c.c....T 7. CO"~'__T'. .~.u. cm '2047ItL''U78 ~r--. I: ... B .. DC.P"I:Nc....r. "A"'. .O:'X...ACZ....... r' Dcruo.......r. ""... ~ acx ... ,.. .. ClCP'DUlAHT". .....11: .o:.x-a.a.c:.c.....llrt. _rEND.....r.. """II: .u..... IN .... C. I. D. Supplemental Continued ~Aua 0 r::etails a:mt'd... Ohio area, area ca:ie 513, the follcwing numbers were che C.'Ma. a I'e".ON an::i infonnation obtained: c_,we. a ,..-. AUTO 513-241-0652 is listed to M. AB.SHIRE, 912 MJnestary St., a TM." . - Il.lRCOTl CS - #11, Cincinnati Ohio, 45202. ~s is in the Mount ~ a ~uv. Eden..., Park. area near the downtown.. ,~. ABS:HIRE is believe a eN'La " . I~...L. _.- r to be !-1iChelle Cameron ABSHIRE, who did go T,oD.th Ricr.a.rd .- - LO.T . ,a P'OUNO Mi.n::>r when he was in the Cincinnati area. "CCO"D. 0 ~"O"I:~ 513-752-6749 is listed to Charles OORDEN at 4444 Kitty In a _aCT. TOtCM. . RJute 32, .Batavia Ohio. nus number believed to 1:e the ....5!j_.UlV. number for I:::ebbie lXJRDEN, another ferrale friend of Richar, -,,' Minor's. \I.. I. 8. J 513-752-1285 is listed to tvilliarn R. BEa<, 4418 ~St CO....UNI. :J c...nON. Tobascn Ohio. This phone number belongs to Tim Beck, ave JA'L ..9--_ close friend of Ricl1ard l\1inor' s frem high school days to co u SLAVICES T"A.IPII"C the present. 0 NIT. 513-961-3026 is liste:i to James IAFOR:E, 39 Calhou..'1 St., 0 IOU" ....TJlO\. 7, Cincinnati quo. This is in the University of 0 .aUAD Apt. CH lID' 0 Cincinnati area . Unkricwn what the connection is with Rid: '.T. c.J CM'CP' Mimr. 0..,..,.. J ":)4,.." "."'\..TM J acPT. 513~651-3040 is listed to B. M. BUSSEY, 915 Monestary Dri\- 1In'. "' .'l'TT. - r' r Cincir.nati Ohio, this is in the M:>unt Adams Eden Park are -.. near the downtown section. -'" 513-724-6255 is listed to Ri~~d Minor's 0",,4 10. ~... o,..,c.zw ca C1..UIC -/ Sgt. Steck OTU_ ........C NO'1'" .CCONa O~.., LUMIC _I'.' ~..oYr .UPUYlaoa sister, Patti I'.. 'A.a. .. '.:l b - .Cant ..... r OJ: 7 .......:/ UI. COHT. _P'T. AT'T4C:': 0.,.... 0..0 lTT I A'l'TT. !!-lo-iS-J-:!lil ..... ~\J ~") v i;"" or ItO'CCT I J. N~(",,\ .,.,.. r. UTlIA CO"'U ''"'" o "'I'D<"; a ......UTa JP,U "%TII CO~rmrt1A nON lU:?Oar :, \ I, a .. Qf.....a. '...._0 "0. I . IIEHO p?LICI: COA:''':WVoIT U ~~~ .. COM~IN.....,.a NA". .U.llIACZ.AG& i 7. CO:.rPUIN.....T.. ....OC.z.. CJ"I .. c.a.ac NUllaa ~',' I: ~ B , 2047 L 78 F .. DC.nNDANT-. ........11 .U...AC....... J"' OC".........".,.. ....... .a.....c: '4. .. DVDIDA...,.a NA... .n......CIl:...ll..'.. _nNO......,.. ....... ...x....c IN.~. I C. r. D. SupplE!rental Continued P"'IItAUa a Details cont'd... rsa-r in Tab3.sco Ohio. c:.,.... o ".".0" Under t...~ 812 area code the following nurnl:ers ,';ere chedce c........ 0 "CPo "UTO arrl infonnation obt.ained: 0 TN." 'wueOTles 812-825-7264 is listed to D3.vid B. STEVENS , Route 6, ffia::; :J JUY. .- ington, Indiana, hc:JWever.,the town is Stanford, which is 0 ..NII.II ,- -......- , - :J just to the south and east of B10aningt0n on the a:nmty LO.T . . ;:J roUND line. . Unkn:Jwn what connection this number has to Richard ".COllle. 0 ""O"CIIITT Hinor. 0 .aCT. Tl'C'_ 812-876-7357 is a non-pub number in El]j\ tsville Indiana , 0;, 'w. - .-. approx. eight miles to the northv.est of Bloomington. 'rP.i.= ......." is nm by the 9ni.th.ville Prone Company, a private utility. w. I. _. 0 Attempts to get this. number proved negative by Det. Fiscus "'ONWUHI. ,J c.."e... it 'was only when he contacted Sgt. Platt of the Sheriff's JAI', C'" - - L'epartrr.ent and later Sgt. Stock Investigator. Cl)6<, contacted u SUvleES T.A~"lC: '1 .. Agent Dennis Ca:-reron of the ne.:,o DE.i.\ Task Force, and it we. NIT. o -UN e."ll<?' o .,.ATJIIOl.. o .QU.... lea..-ned that this num1:er ~vu.s apparently involved i."l an on- , going investiqation by the InclianapJlis Office of the Fede '.T. o CKllll' DEA Task Force. This number is believed. to beloncr to i'Iar:::- D:mqlas t~1I3IER, t'i1, dob 4/5/52, 55#279-42-6724. Iast 0_,...,.. o eK,ol ~u"'~VT'1 ~tST. --:-,~A~ . knavn address is 808 Diana Drive, Cincinnati Ohio. 'TI1at address is his father's. Investiaation bv Det. Fis'=US she- that F.arr'\! Cbuqlas NARMBIER was e.rrrolled in the fall of .-' Sqt . S t:cx-- k /h; 1978 at Tncli3i1a University -.vith Co rune address of 134 NJrt.: II.. r.... Cont'd 3 of . "....../1.2.. CoN"f'. ..,..,... ATTAC: a TU a,,, ~.\o :tn' J~ R-IO-7S-J-jDU j.... OPJ'. 10. .~... c"",CZ'W c:e a...ca. ........" "0"1"' ..c.,..o o~... ......... "0./'&' A;o7.UI'V1I.".0. . l.'';~ /2. ellftA I . ) -:-- :-.- ':.-. I.TT__~ .JOT. CO~IU :..:. - ". ~ .: -~.3= OI'7Of.. a ......-.aT a ~ CONr.I.L'lUAnON RE:Pon - :: I 1'-- ~. 4. CH....... Ie. Noc.D I"0Il I . '- . REHO l"CLICI: J:lEPA"T"~T r""'. U , - 0< e. co"~'........r. ........ .&ll....CZ.AG. I 7. CC""-A'H.uoT'. AOO..ca. an I .. CA.c "U.8ClIr- :3 II: ,- 8 2047 L 78 ,: - e. C&r'ENDA...r. NAMa .u.....c:a...... ,.. _rvoo.....r. ....... F lIQ "AC; -, I.. e. ~CANr. lOAM. ..a..Ace.AGe,.. DC~ND....ra .."... . iU.1lAC: IH.... -.- - - . -. ~ C. I. D. SupplerEIltal Continued ,. r . o. - 9'WAUD ... J ,- -."--' O:tails cant 'd... Clark St. , Blocminaton Indiana , ohone 339-4188. '!his - rriri e..... c. , 0 ......0. . - ._-.. .', . -.--. in the investiqation :...._.-. Cll'.... did not cane UP so far. Mter a- ntim a "1Il01'. .-....~.. AUTO of attanpts bv O:t. Fiscus and other rnerrbers of the ID ~~=- " TN." - - . .... .... ~.I.RCaTl cs . .,,~ :....: "::,:..~-:;:~: ....- "--. .....;.-..-. a .' - Investigations Unit, a subject answerinq to the !"EIre of .. . .. . .. -- .. .. _.._4.0" JUV. a/-CNILK O::mq Narmbierwas contacted in a labora torv class atthe<: - " tN', _-1.. :'" "~.--':.-. a University . '!his subject proved to be not Han:v ~q~~' _O.T . a "OUND -. ."COIlD. War.mbier but a rinqer that Mr. Wannbier was usinq to have 0 ...tIto,..~"'" him maintain attendance so he ~uld not lese his colleoe a ..CT. ."''''''"''' subject is known nf credi ts . 'lhis as Robert Cannichael , vN, ..... AV. ..... '. dab 8/24/54, usinq the address of 134 N. Clark St., B1cx:m- ~ ington. 'Ibis man was receivinq aporox. $30. a wee.i( to ta. '< w. I. _. :J these classes for Mr. Wannbier, allCl..n.nq Mr. tolarrnbier to - :O....UNI. J CAnON. r---. ITOVe alxmt fr~..l y . It is indicatoo that Harry D::JUqlas r: ~ ~. Nannbier and a friend and associate Mark Alfred SIFFnT , J SUVIC~S .....".c ~ descril:ed aPDrox. 6'1" 140 lbs. wi. th a . - M:=r1 .J as s liT. im/"'Ol'V"'ed in r.arcotics traffickinq all the J llUN are way fran . JAT_OL J aQUAD Fcuador throuqh the Florida area into Blocmington 2nd ~I,", - aoparentlv all the way across the United St-?It-P~ inm M::!rir .". ] CM'C" Cotm'b.l , California, South I..ake Tahoe, and El DJrcdo County ...,.. I CMIC,. California, the San Francisco area and Honolulu and Kona WALTH J C~. . IT.-... Havlaii. Th~ are dealing prirrarily in cocaine, h:.wever , l ,. '.,.. -' - ". handle all types of drugs. Mark Siffin apparently went , " underground saret:irne prior to the Christ:r.as holidays and r_ ~ ....., /'.. "AO. . A'nT. R-ID-1S -J-50V \t~ Cont'd 4 of . - ,..~. ....0.. 110.1_ I. a&c:o..a or". ....04& .....1'... AP~..aYIN~~""V'.o. .,AM"i I'. CO<<1". .JIII'T'. ATTAr orr 10. ~... O......c:.I:1l _ a..u. -: _c.rr+-- c: ....,.....-1~ 1"1.-."':' I On.. 0.. ...,.,-,.;.,.; ('.n~cw~ 1.&' "'0 ~ ,"",. 12. UT:I... CC~IU I~ o~..:a ....&.8TQ r, C..-nI I CO~AnON RI:PORT =. , \ I L 4,' CHAM" ,a. HOI.O '001 I ~ 0 "0.0 P'OLIC~ DEPA"TWI:IoIT U ct~ 0( e. COW""""I"'AHT" "...... .1CI.IlACC...,U: I 7. COWPLO.I...,un'. ...co.ca. ClTT I ., CAS. .. ,,.'.... .._" C - E ,2047 L 78 .. ~"DA"T.. HA.... -........~...... r' o.u-voo....r. ........ ~ .cx.....c e. ~o......r. ........c .u.....C&...o&/.. DCI'VCDNfr. .......& wu......c 14. INap. C. I. D. Suppl~ta1 Continued ~AUO 0 Details cant'd not .beo.-I1 seen since according to the r'bnroe County Sheriff c.t.... o ~...o... Departme.'1 t, IU Police, and apparently the DEA. Task Force C.lI'C. 0 ~1II0P. working this particular case. In the original investigati AUTa 0 TN." 'l.lRCOTl CS it lY'aS learned th3. t Harry DJuglas i'lannbier and a man na:rred 0 ,. .IUy. . , '. Mark w-ere caning..to 'REnO s~~~ around the twenty....first 0 .NIL& ,'--" 11 "_ or twenty-second of Cecernber to meet Richard ani FOssibly c.. LO.T . Previously it was :J ,.OUNO go on to fuwaii. learned that RicharG m. "SCOlto. 0 D:Jug Wannbier, who is an old high scheel friend of his fra ~1II0"CJITY 0 'CCT. OC;H......"'V. Amelia and 'lbbasco Ohio sanetirr.e late N:Jvember and it is - ..... believed bot.~ of them and ~nflril Bar1::er .-lent to P.awaii. 'lh:: -' is '-lhy it was imperative for the IU Police to locate ~1r. ... I. .. Wanr.bier and intcrvie~-l him. After it was 0 learne:3. that !.1r. ....,a.....uN.. .J C"'T10N. ~la.J:mbier ~"as not the tvarmbier we were looking for~his a ttor .....n. 0...."", - -, 'I). I] stUICES Mr. Ira B. zinman of Blcx::rnlIlgton Indiana, phone 8l2-334-llC T.AP'P'C brought t.m real .I-farry Douglas Warmbier to the IU Police t:J - "'T .a Depart::rr.ent Ll1vcstigative Section where he TNas inter.n.e.....ed. CJ .UN rATWee.. A follow up report is '. attached from t.r.e Indiana tJniversity o .OU"'D e.tlll<P :J Police Depa.rt:ccnt in getting the cru."{ of this interviE'N, .n. .J CHI.r however, Mr. Warrnbier did state that he rret Richard Minor a :I_PT. :J CNI., If..u..TM the Reno AirpJrt after flyiJlg there fran Indianapolis and J OS7'l'. 'IWT. Richard picked hi.'1l up in his va.'1, took him to the 906.~ .., ATTY. - (....... fblcolrn address where he met _%,ril BarJ:er. He stated that Richard intrcx1uced April to hilll as my e.'X-girlfriend, a hook :rn /1.' ~...a: ~ ATTY. R-IO-76-J-SDV \~~ cent'd 5 of . -. L -. 10. ~... O......cnt co CUUl.. .....0.. Mo.1 11. a&COtoIQ o,~. .....001: -,... "';;;7U,.VOVI80.. ......../,:1. coon-. Itrr. ...TT'" .~ Sgt. Stock/bj I CTU 0.. 0ftI_ II. ,",l"I: 0' .0'0<<1' 0.........& a .......UT a A I ~. N' 11.::::-T. ~. 4c:rT8 , r. IlXT..... ce",u ,a. "Of..D .~. COllTnWAnON lU:PoRr "OIl ....._~-.. ...~. . ~ RI:HO P'OLICE D~4ItT"I:HT .u.....a.....:.' 7. CC.."UI.......T.. AOO"U. .U."ACS....O. j"' a&......aA..r. HA... ..X..A<:&....O.,.. DIl......aAMr. ........ CJTT I .~ CA.al: "Ullt.Q>- : 2047 L 78 a.c:z""4. 14. 'N.~. C. I. D. I . Sllp91enental Cbntl.nued SU..A' ~"'UD o Details cont' d. . . prostitute and e.'ct:ortionist. He only saw April for a fe.., minutes the one t.i.me. He states that Richard a.~ he then caUIII. o "1l".OH cl"..&a o P'tt0... "'UTO o TN." II.uCDTl CS o drove in the. van to San Francisco airport where tl'..ey tcok ., flight to Honolulu and later toKona on the big island. JUY. o IlNIL.1l --- They sJ?eI1t several days just lying around, surfing and swi ..L. u He stateS' that at no time, to his kncwledge, was April Bar in contact with Richard Hinor nor did. she appear, eve..TJ. the '. l.O.T . o "OUND ".CORt>>. o ......0,....,." a nCT. she in::licated she would meet then there. He w:Juld not sta T1t~. C :KV. or aClrnit a:::ming to Reno at any other tiJre in 1978, i"Ja'ieV-er '-' aanitted he was here twice in 1977. He furt.,er indicated that he would be \-lilling to talk with investigators as lon( ... I. .. o as his attorney was present if they decid...cd to cane frem R~ ':O"UUNt. o CAno... J.......... r . to Blocnu.ngton. It ~s believ-ed tr.at D:Juglas t~er is r co... o SERVICES ., aware o,~ a Drn' Investigation 'against him a.t this tirre. De: "'-A"",c ~ Fiscus uncovered further infonnation that D:>ug Wannbier anc "IT .. c "u.. his girlfriend, D:Jrothy Nyland, of Blc:omington, have fol:!!1E!i . .t-T:10l.. ~_ 10""0 sort of an antiques cc:mpany for t:a"< purr;oses. It is belie'. C>o. '"' o .....eT. a CHI... thatl:.tEy occasionally travel together. Through the grace vine. it has been learned that D::mg tV'arrnbier has l:een in m.: :IIW,...,. a Clfl... W'EAl.TH a au.,.. a:mtact by phone with Tim Beck in the Cincinnati area. Tin- ,..,,". ~---"~. -.. Beck has voiced infornetion to people that D:Juq Warrrbier apparently was at the Reno A.iro::>rt on Cecerr.ber 22 aTJ.d w:"en ....." :,.,.., ....., ... 'IT\' . - R-I D-7 6 -3-5DII Ri.c~d did not meet hi'TI he took a taxi to the Holcol:n Stre t 1'6.' "OAfOI \!: (\ Cont'd :0..... J 0...... 10. .~..o O,.",CZ1I _ c..Dtrc ~rr+- C.....~~l_ Il....": ......0. Na_llle ..c:~c 0'''. ....Da.. JiIeoQ,,/ fa. A";;;Y';'t::f1"'-UP~V'.O. .ANIC," ,~. COIifT. It""'. ATT.s. n TEa 0 . l.'TTP"I: _ ~ 0..,...... 0 ARRIla'T 0 = ;' 4. <:H.....a a I'~<--... u '" ..:..; . < .. CO.."-A.........r. NA..a .~ I: 5 .. O&l"I:...o......r. ........0: F 14. IN.~. C. I. D. ~AUD ,0 c:....&. o "1:"'0'" CR'WI:I .0 "RO~. "'UTO o THe" -'&ReCTI es o .Iuv. o .I:NILe -- .. ,.. o \.O.T . 1 ,.OUNO ".eo.a. :J lI'''orRJIITT :J UCT. ...C....-., J t Y. .. I. 8. J "WUNI. J CATrON. ~IL--:-. J: . -N. : .1HvleE! ,,,,,...re I. IT . RUH ~T"O'" aOU"'D fl... r. CHI.., - ..-r. eN... - ALTH O_PT. - 1"1':. _/~~. ., . ATTY. - .... .. ~DANr. HA..I: ,~. ..0." 1'1". ,. AC. ::n'W I~ I r' zz~... CO~IU. ,.. "_0 CONTINUATION 1l.EPORT ..011 "EHD P'OL.CII: CEP"ltTWItNT .a.ll4cs.....e '7. CO....""'.N_.,.. ...__u. IU.R...C1t.A'l!l'" DCrn<O......,.. ........1: .u.....ce......,.. D.oIif"&Ho.....r. N.....o: cm I ;07; ~UM;; ..Q....c.: .u.....cz Details cont'd... Supplenental Continued P.-ID-76-J-SDII on. '0. W1POlrT1Jf 3 C"..", CZJI' CMI c::..o.lIt - Sgt. Stock;bj address where he observed police and coroner's people 'z:~g.'~ body fran the residence. At this ti..TtE he ;.i.n:li.~ted he paniced and walked saneplace back to the a.i.qx: ," whef~" "he' 'tcok an .imrediate flight back to Indianapolis. It . is'~ :if he was ~c~ed by Mark Siffin, h:::Jw-ever, . the name .Hark has surfaced during this investigation and he is described as a thin, tall, baldheaded rran. Observations by this investigator indicate that April Barter was appa..-en~ extorting saneone, \'rn it is not k:ncwn, possibly Richard Mir J;Ossibly a third or forth subject ';om may be a majo= drug trafficker. She was apparently e.'Ctorting this party for a large arrount of rroney, and this is possibly wny she has disaP?2ared and is presumed decease:i at this t:i.m:. Where Nr. Nazzan CCllTES into the picture is unknown unless he was the key to getting -Ricb.ard to o['en his door so he could .!:e liquidated by anof:l.1er party. It is p:Jssible that Richard earlier disp:Jsed of ,"l.pril Barrer and then was killed by Hazzan or sane other party. It is p:Jssible that Nazzan was in crJer his head and was also marked for a CXJntract killing and decided to take care of Richard first to please other people, poss.ibly he will l:::e revarded with rroney and is wilL to take a short jail sentence to save his cwn skin, again, these are only supp:Jsitions a'1d observations by t:J.l-ti.s invest..: gator. -=\-t /.... ,...... . 7 of: R,u""II.J:.. CONT.. .".. ATTAe: . o.,u OOlC END OF REPORI' -....oel: MOT" '''Cl:>N0 O~~. ...oos ...../'.. ":;:;Y~"VlY"o. m >< :J"' C" ;::;.: ....&. o LXEN FXLXNG RECORD This Filing Current Through:04/29/1997 Court Last Updated:12-16-2003 Court Current To:10-07-2003 Current Date:12/24/2003 Source:CIRCUIT COURT, XN FXLXNG XNFORMATXON Filing Number: 02832618 Filing Type: STATE TAX WARRANT RELEASE Volume or Book: 2 Page: 9 Filing Office/Address: CIRCUIT COURT 301 N COLLEGE AVE BLOOMINGTON, XN 47404 Filing County: MONROE Filing Date: 02/06/1997 DEBTOR XNFORMATXON Debtor:SIFFIN,MARK A, 4420 MAEFIELD ST BLOOMINGTON, XN 47404 Debtor Amount: $416.00 Debtor:S P C DEVELOPMENT INC/NR SHLDR, 4420 MAEFIELD ST BLOOMINGTON, XN 47404 CREDXTOR XNFORMATXON Creditor:STATE OF INDIANA TO ORDER ORIGINAL FILINGS OR OTHER RELATED DOCUMENTS, CALL 1-877-DOC-RETR (1-877-362-7387) . END OF DOCUMENT Copr. @ West 2003 No Claim to Orig, U,S, Govt. Works Page 2 of2 rn >< ::r c;: ;:::;: .... .... Page 2 of 2 2253649 2DE Page 1 UNIFORM COMMERCIAL CODE REPORT Information CUrrent Through:12-04-2003 Database Last Updated: 12-23-2003 update Frequency:Weekly Current Date:12/24/2003 Source: DE SECRETARY OF STATE FILING INFORMATION Filing Number: 22536492 Filing Date: 10/08/2002 Filing Type: ORIGINAL Filing Office: SECRETARY OF STATE/UCC DIVISION FEDERAL & DUKE OF YORK STS DOVER, DE 19901 DEBTOR INFORMATION Debtor(s): OCEAN BLVD, LLC C/O MAEFIELD DEVELOPMENT ATTENTION: MARK A. SIFFIN 328 SOUTH WALNUT, SUITE 2 BLOOMINGTON, IN 47401 SECURED PARTY OR CREDITOR INFORMATION Secured Party~ P~F.MONT INVESTMENT & LOAN 175 N. RIVERVIEW DRIV~ ANAHEIM, CA 92808 D&B DUNS Number: 00-914-0187 COLLATERAL INFORMATION Collateral Type: RIGHT/TITLE AND INTEREST INCLUDING PROCEEDS AND PRODUCTS TO ORDER ORIGINAL FILINGS OR OTHER RELATED DOCUMENTS, CALL 1-877-DOC-RETR (1-877-362-7387) . The preceding public record data is for information purposes only and is not the official record. Certified copies can only be obtained from the official source. The public record items reported above may have been paid, terminated, vacated or released prior to today's date. END OF DOCUMENT COpT. @ West 2003 No Claim to Orig. V,S, Govt. Works rn >< ::r c;: ;::;: .... N of'- ... o ... I) :ll) :lI L" "c:J * QI * > r.. * lU ~ II) ~.:.:... .~: QI ~:~:r~ Z a: 0 II) en .... .c ILl D tn en ii2 0 0 a:: A. - 0 * - a: c u * ~ .. W * A. U a:: * .... C ~ * G c ... Q ~ Z .. ~ a: II) ~ 0 "f tt: 0 8 ... .... U)tn U Vi t- o!! :2~ w III C DI a: ~ '0::( :E u ..J:) ~ ~ a: <(0 w 0 Q:: a: ~u en 1ii 0 II Z ~ .... ~ X &L II ..... W Z Q a:: II. 1ii .... U &L 0 0 c - 0 Oe a:: II <( w w 0 C * U) (I) i: 0 Z * 0 0 to) II. :w 0 * a. a. ^ In N * ~ ~ m ..... I .... z a: * .... c ..... :! <( I- W I- M Z a: Z C c w ~ ..... W ~ Q c U) <( ::> U) <( .~, N a. 0 a a. 0 In .... U)....o W (1)....0 "l::' tool .c QJW...... a: QJW...... ul :J: D Ua:NN ~ Ua::NN , . t- .- :i:i ......-t .- ......... .~.'.. . ^ r.. L.lIJ......O ~-O ';'- III * >- Oj~OO\ j~OO'l 'E ~ * 11. 1::"':...10\0\ W ":...10\0\ S 0 ~ * 0 1lJ1/I....0\0'I to lIJ_O"IO\ u Q) U ,.., CUE::>''"'" a:: E::>'..-t ~ CIJ III .2: ,.., a: Q) 0 cE/OCla::\D wu/Ol!la::\D .. rn Cii 0 In W CUo_<(I-N ClC'-<c~N .. .!:l Cl \D m "C= , .. - .... - I J5 '6 Z "it .... WUI"-WNC1 :...I1lJ=wNCl 3 L. Q..-:=....JO:::1 ::>a.;.S:..JO:::1 :::3W 0 ... z - U)~..a.,..,< .. a..- II. - Ul 01- 0.,..,<( :i- ^ c ~ II. 0 W .. I:: .. 9 .. J: .. i:: .,0 .. 1S rn ... ....J~ - > ~.2 g " .B U)~o cM QJ U) 0 :) W .... .... L. ... - . . ItS C 'C :i:i .2 .. 10 o ra U <( ~ c.ncu.!:!~L.C Z CD.~ ~ Cu C I) ~I E 0 a: .. J!! c.n > "C lIJ tU <(>'OlIJ ... a: .. u. ~ <( .c w WCUllJo-ec CUllJo.Q1:: .. u 0 a:: ~ /0 I- U(l)i:~ 0 o.(I)'cD.Eo ::l ... U I) ~Ie .E <C ::E ..... x CD :::1 .- :::1 ;jj :5 :J lIJ .- .- J: tU .-:J... ~ U :::E Vi III 3: w UI" C Z 'Uj III .., 0 Z 'Uj a.. 'u; .... L: ..I::~CUCLIO ,. I:: ~ CU CLI 0 Q) II) 0 QI QJ ~ :::1 III lIJ c.. QJCLI::JlIJUlQ. 1-- Qj in Cii QI ! "c:J a; lIJ OI'OIlJ..!:2 ~ If: 0 IlJ IlJ .!!! f::! E ~ E lU ~ouuuc :::3 ... "c:J .... C U QJouuuc .) aJ~ L Ia " II CD Ia It: ll::: a z c Q ~ a: 0 0 .) ') rn >< :::r a= ;:::;: ..... w . FEB. 29. 2000 1: S9PM 'INDI~IS 00 J i~ NO.698 P.2 ". ,. .".- REPORT OF IN"t:ST1GATION I. ",ROGRA" COOl!' a. CAOG FiLl Page 1 of 1 .. a.ou IQENTIFIER L av, Laurence U. Lillii ATt Special Ageut I .a.dianap a 1 is. Illdi o o Q Q o MAESTULBS. Gus Peth"_ at al. ~. 0 Co'" 0 R____ An_ COrnIII..... AedOft AeqvenN ey, L OYM"" OFFIC:ER5: . S/ A Chovn lG.. "EPORT RE: Cri_intl Re~ord of M~~~ ~T~~r~ .. DATi PflEPARcl) DETAILS: 1. lefsr~nc~ Is aad. to preTious Reports of Investi,ation rela~lYa to !:.he sUSpected 'trafficHn, aetiTities of Karl: Alfred SIFPIN. et at.. ~. Aceordinl to U.S. Customs records, Mark Aifrecl.SIPFnl~ arrested. ~t: Tangle-%'$. Morocco daring 1971 or 197Z. ~d chargecllllth possession of about one kilogram of .hashish. I~ is requested ~hat the Paris R.O. attempt to Yarify this arrest. and deteraine ~e 1dantiey of any cc.defenaants or associa~e$ who might s~il1 be associated with SIFPIH in drUg traf~icking. 3. Of:l AulUSt 20, 1913" SIFPIN vas a!'rested a't Bergen COUD.'t)', Hew .Jf:rsey, and charged with disttibutioD. of heroin. It is reques~ed ~.t the N~vart D.O. ob-eain and forward 'to the Indianapolis District Office copies Df arres~ and investigative reports relative ~o this arrest, Jerien County '19173A ~ PHYSICAL DEScRIPTION: Mark Alfred SIFFIN: Chas no record with Naddis) is describod as a white male, born October S, 1$50, at Bloomingtou, Indiana, , 6rou tall, 1.35 pOmlds, with broWD. hair andbl'l1e eyes. He has Social Security '305.58-6064. FBI '138825 Ml, and New 3ers8Y State Poliee '468110A. 11. DISTRIBUTION: 12.. SIGNATURE (AQent) ~?" <~. 1:1. OA TE "~GION 2 , 17 OISTRICT }lenrk D.D. OTHER ~ntellig~.n.ce DEAFonn -6 (Dee. 1Sl7&) .~ - '. . CB.O . I. .. . .' ,I' ,.. . . /.' . ~'1 .~ ~::.. ,~ t.L. _ : '.: : A j' r . '.6 ~ . . ' '~". t..J- .._ ~..,.. v'\,.,. OFFICIAL USE ONLY DRUG EN f-OACEMENT ACJ.(INISTAATION ~ Kllot1 W &Ii. >>:o1lG"-i of ~. Dftl& 2D1ara.m_' A,4Il11lairizatto.. N~ IS _1.. eo.tont.;.Cllllr lM 4!l;se~ .~i8i.4. ta. ....Il.C7.. Y!&klllo~", Cop~ 3. Oi#lct Off.c. C? - ~I.'''\ 'B f, .r. ("1-:;5" 'l~ '-1 . -~~