Motion by the United States to Take Deposition under Federal Rule of Criminal Procedure 15 — No. 1:24-cr-00528 (Dkt. 61, D.N.J.)

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A Motion by the United States to Take Deposition under Federal Rule of Criminal Procedure 15, Document 61 filed May 2, 2025 in the District of New Jersey (Case 1:24-cr-00528-ESK, Crim. No. 24-528), United States v. Arthur Spitzer, Mendel Deutsch and Joshua Feldberger, before Judge Edward S. Kiel, signed by Assistant U.S. Attorney Daniel A. Friedman. The government asks to depose a prospective witness referred to as Individual-6, whose signature it says was forged on two documents transferring control of limited liability companies that owned real estate, used to obtain a $4,500,000 mortgage. It argues the testimony is material and that the witness's illness makes unavailability at trial likely, and asks for a deposition in July or August 2025. Counsel for Feldberger does not oppose the motion.

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Case 1:24-cr-00528-ESK   Document 61       Filed 05/02/25   Page 1 of 11 PageID: 211




                      UNITED STATES DISTRICT COURT
                         DISTRICT OF NEW JERSEY



UNITED STATES OF AMERICA               :        Hon. Edward S. Kiel, U.S.D.J.
                                       :
            v.                         :
                                       :        Crim. No. 24-528 (ESK)
ARTHUR SPITZER,                        :
MENDEL DEUTSCH, and
JOSHUA FELDBERGER




        MOTION BY THE UNITED STATES TO TAKE DEPOSITION
         UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 15




                                             ALINA HABBA
                                             United States Attorney
                                             401 Market Street
                                             Camden, New Jersey 08101
                                             (856) 757-5026



On the Memorandum:
Daniel A. Friedman
Assistant United States Attorney
 Case 1:24-cr-00528-ESK                    Document 61               Filed 05/02/25        Page 2 of 11 PageID: 212



                                                   Table of Contents

                                                                                                                     Page

I.         PRELIMINARY STATEMENT .......................................................................... 1

II.        FACTUAL BACKGROUND ............................................................................... 2

       A. Relevant Allegations in the Indictment. ............................................................ 2

       B. Individual-6’s Anticipated Testimony. ............................................................... 4

       C. Individual-6’s Illness. .......................................................................................... 4

III.       ARGUMENT ....................................................................................................... 5

       A. Legal Principles Governing a Deposition. .......................................................... 5

       B. Individual-6’s Testimony is Material to the Government’s Case. ..................... 6

       C. Individual-6 Likely Will Be Unavailable to Testify at Trial. ............................ 7

IV.        CONCLUSION .................................................................................................... 8




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I.       PRELIMINARY STATEMENT

         The Government moves, pursuant to Federal Rule of Criminal Procedure 15(a),

 for an order permitting it to depose a prospective witness, Individual-6,1 in advance of

 trial.2 As described more fully below, Individual-6’s forged signature was applied to

 two documents that purported to transfer control of limited liability companies that

 owned valuable real estate properties. The defendants then conspired to obtain a

 $4,500,000 mortgage secured by the properties that they did not actually own or

 control. Individual-6 is expected to testify that he did not sign these documents; he

 did not authorize anyone to sign his name; he was not aware that his signature had

 been forged; and he was not even a member or manager of the companies whose

 interest he supposedly transferred. Individual-6’s testimony is therefore material to

 the Government’s proof of the fraudulent mortgage scheme and of the defendants’ use

 of identity theft in carrying out the scheme. Individual-6 has stage four metastatic

 colon cancer that has spread to his liver. Given that a trial date has not been set in

 this matter—and a trial will not take place until the middle of 2026 at the earliest—it

 is sadly likely that Individual-6 will be unavailable to testify at trial. The Government

 moves to take his deposition in advance of trial to preserve his testimony.




 1 This individual is identified as Individual-6 in the Indictment.
                                                               The Government is
 anonymizing Individual-6’s name in this motion because the motion discusses
 Individual-6’s medical condition.

 2 Counsel for Joshua Feldberger does not oppose this motion.Counsel for Arthur
 Spitzer and Mendel Deutsch have not yet offered substantive positions on the motion.

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II.       FACTUAL BACKGROUND

          A.    Relevant Allegations in the Indictment.

          The Indictment alleges a scheme to use fraudulent documents and false

  representations to defraud property owners and mortgage lenders by obtaining

  millions of dollars in mortgage loans for real estate properties that the defendants did

  not own.3 Although the Indictment alleges a series of interrelated fraudulent

  mortgage transactions, this motion focuses on a single transaction—underlying

  Counts 6-10—because Individual-6’s involvement was limited to that transaction.

          In July 2019, three limited liability companies purchased three contiguous

  mixed-use commercial and residential buildings located in Brooklyn, New York (the

  “Malcolm X Properties”). Count 6, ¶¶ 2, 5. The settlement statements for the July

  2019 transaction were signed by Individual-6, who was acting as an authorized

  representative for the purchasing entities. Id. ¶ 6. In the second half of 2019 and the

  beginning of 2020, Individual-6, again acting as an authorized representative of the

  owners of the Malcolm X Properties, sought to identify a buyer for the Malcolm X

  Properties. He met and engaged in discussions with defendants Arthur Spitzer and

  Mendel Deutsch, who were interested in purchasing the Malcolm X Properties. Id.

  ¶ 7. These discussions did not result in an agreement to sell the Malcolm X Properties

  to Spitzer or Deutsch. Id.

          The Indictment alleges that notwithstanding the lack of an agreement, Spitzer

  and Deutsch conspired with defendant Joshua Feldberger (the owner of a title



  3 The Indictment also alleges that defendants Spitzer and Deutsch fraudulently

  obtained millions of dollars of government loans that were intended for small
  businesses distressed by the COVID-19 pandemic.

                                              2
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company) to devise and execute a scheme to obtain a $4,500,000 mortgage loan

secured by the Malcolm X Properties by making it appear as if Spitzer actually owned

the Malcolm X Properties and that Spitzer had agreed to sell the Malcolm X Properties

to an entity controlled by Deutsch. Id. ¶ 8. A critical part of the scheme was to make

it appear as if the Malcolm X Properties were being legitimately conveyed to Deutsch

so that the bank would approve and disburse a mortgage to Deutsch. In that respect,

the defendants used two documents bearing purported signatures of Individual-6.

First, on or about June 11, 2020, Deutsch emailed a “time of essence” letter to his

mortgage broker, which was then forwarded to the bank that was funding the

mortgage. The “time of essence” letter stated that the seller of the Malcolm X

Properties was ready to close the sale of the Malcolm X Properties to Deutsch. Id.

¶ 13. The “time of essence” letter was purportedly written and signed by Individual-6

on behalf of the seller. Id. Second, the defendants used a document, dated August

2019, purportedly assigning membership in the Malcolm X Blvd LLCs from

Individual-6 to Spitzer. Id. This “Assignment” made it appear as if Spitzer owned the

Malcolm X Properties and therefore could sell them to Deutsch. Id. Emails obtained

in the investigation show that the “Assignment” was created not in August 2019, but

after the fraudulent Malcolm X transaction already had closed in 2020. Id. The

Indictment alleges that the bank approved the mortgage, the proceeds were used for

the benefit of the defendants, and then Spitzer and Deutsch defaulted on the

unauthorized loan. Id. ¶¶ 17-19. The defendants are charged with multiple crimes

based on the Malcolm X transaction: conspiracy to commit bank fraud and wire fraud

(Count 6); bank fraud (Count 7); wire fraud (Count 8); aggravated identity theft


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(Count 9); and making a false statement (Count 10).

      B.     Individual-6’s Anticipated Testimony.

      The government first interviewed Individual-6 on February 16, 2022 and

conducted a more extensive interview on August 16, 2024. Copies of the FBI 302

reports of those interviews have been provided to defendants in discovery. In those

interviews, Individual-6 stated that he had discussions with Spitzer and Deutsch

about them purchasing the Malcolm X Properties, but no agreement was reached.

Individual-6 confirmed that he did not sign either the “time of essence” letter or the

Assignment that purportedly bear his signature. He stated that he did not even have

the authority to sell or assign any interest in the Malcolm X Properties in 2020; he had

no further authority after he executed documents in July 2019 to facilitate the purchase

of the Malcolm X Properties. Individual-6 also recounted a discussion with Spitzer after

Individual-6 learned about the fake Assignment, during which Spitzer did not disclaim

knowledge of the document.

      C.     Individual-6’s Illness.

      In the spring of 2024, Individual-6 was diagnosed with stage four metastatic

colon cancer that has spread to his liver. He is receiving chemotherapy treatment, but

the treatment has not been effective in shrinking the tumors. His prognosis is not

good. According to the American Cancer Society, the 5-year survival rate for colon

cancer that has spread to the liver is 13%. https://www.cancer.org/cancer/types/colon-

rectal-cancer/detection-diagnosis-staging/survival-rates.html (last accessed April 24,

2025). The 2-year survival rate is 37%.




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   https://pmc.ncbi.nlm.nih.gov/articles/PMC10843884/.

III.       ARGUMENT

              A. Legal Principles Governing a Deposition.

           A court may order the taking of a deposition “in order to preserve testimony for

   trial . . . because of exceptional circumstances and in the interest of justice.” Fed. R.

   Crim. P. 15(a). In determining whether to order a Rule 15 deposition, courts consider

   two things: the materiality of the potential testimony and the unavailability of the

   witness. See United States v. Ismaili, 828 F.2d 153, 159 (3d Cir. 1987). The burden of

   proof rests “with the movant to demonstrate the necessity for preserving prospective

   witness’ testimony by a deposition.” Id. A defendant generally has a right to attend a

   Rule 15 deposition and his counsel has the right to cross examine the deponent. See

   Fed. R. Crim. P. 15(c), (e). Before the deposition takes place, “[t]he government must

   provide to the defendant or the defendant’s attorney, for use at the deposition, any

   statement of the deponent in the government’s possession to which the defendant

   would be entitled at trial.” Fed. R. Crim. P. 15(e)(3).

           A showing of a prospective witness’s unavailability “need not be conclusive

   before a deposition can be taken. United States v. Drogoul, 1 F.3d 1546, 1553 (11th

   Cir. 1993). “A potential witness is unavailable for purposes of Rule 15(a) whenever a

   substantial likelihood exists that the proposed deponent will not testify at trial. In

   that situation, justice usually will be served by allowing the moving party to take the

   deposition, thereby preserving the party's ability to utilize the testimony at trial, if

   necessary.” Id.; see also United States v. Omene, 143 F.3d 1167, 1170 (9th Cir. 1998)

   (“Rule 15(a) does not require any conclusive showing of ‘unavailability’ or ‘material



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testimony’ before a deposition can be taken in a criminal case. Rule 15(a) only

requires that the trial court find that due to exceptional circumstances it is in the

interest of justice that the testimony of a prospective witness be taken and preserved

for possible use at trial.”).

       A determination authorizing a deposition under Rule 15 is not a determination

of its admissibility at trial. See United States v. Blumberg, 2018 WL 878523, at *2

(D.N.J. Feb. 13, 2018). A Rule 15 deposition merely preserves the testimony, and

parties can argue its admissibility pursuant to the Federal Rules of Evidence at the

time of trial. See Fed. R. Crim. P. 15(f) (“An order authorizing a deposition to be taken

under this rule does not determine its admissibility. A party may use all or part of a

deposition as provided by the Federal Rules of Evidence.”). “When a prospective

witness is unlikely to appear at trial and his or her testimony is critical to the case,

simple fairness requires permitting the moving party to preserve that testimony—by

deposing the witness—absent significant countervailing factors which would render

the taking of the deposition unjust.” Drogoul, 1 F.3d at 1552.

          B. Individual-6’s Testimony is Material to the Government’s Case.

       As described above, the defendants relied on two documents purportedly signed

by Individual-6 to facilitate their scheme to obtain a $4,500,000 mortgage on a

property that they did not own. Individual-6’s testimony that he did not sign the

documents, authorize anyone to sign his name, or even know about the documents, is

material to proving the charges of bank/wire fraud conspiracy, bank fraud, wire fraud,

and making false statements to a financial institution. He also will testify about his

discussions with Spitzer and Deutsch about the Malcolm X Properties and the fact


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that no agreement was reached. This testimony will directly prove Spitzer’s and

Deutsch’s knowledge and mens rea that they were not authorized to obtain a loan

secured by the Malcolm X Properties. Individual-6’s testimony is also material to the

charge of aggravated identity theft. An element of aggravated identity theft is that a

means of identification, such as a signature, was used “without lawful authority.” See,

e.g., Seventh Circuit Model Jury Instruction 1028A. Individual-6 is the only witness

who can conclusively testify that his signature was forged on the documents and was

affixed without lawful authority.

          C. Individual-6 Likely Will Be Unavailable to Testify at Trial.

      There is a substantial likelihood that Individual-6 will be unavailable to testify

at trial in this matter. Under the operative scheduling order, pretrial motions will be

argued on September 30, 2025. A trial will not be set until after the motions are

decided, and realistically will not take place until sometime in the middle of 2026 due

to the complexity of the case, the anticipated length of the trial, and the need to

coordinate schedules of the Government, three defense lawyers, and the Court.

Individual-6’s stage four cancer diagnosis means he will likely be unavailable to testify

at a 2026 trial, either because he will not survive until then or because the progression

of his illness and the side effects from aggressive treatment will render him unfit to

testify. Courts recognize that a terminal illness satisfies the unavailability analysis.

See United States v. Carbone, 110 F.4th 361, 369-70 & n.5 (1st Cir. 2024) (authorizing

Rule 15 deposition of witness with stage four prostate cancer and an uncertain

prognosis); United States v. Caramadre, 882 F. Supp. 2d 295, 297 (D.R.I. 2012)

(authorizing Rule 15 depositions of material witnesses who were terminally ill and


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  expected to die prior to trial); United States v. Waddell, 151 F. Supp. 3d 1317, 1320

  (S.D. Ga. 2015) (same); United States v. Narang, 2023 WL 5489055, at *2 (S.D. Tex.

  Aug. 24, 2023) (authorizing Rule 15 deposition of witness with liver cancer and a

  “tenuous prognosis”). A deposition conducted under Rule 15 is the only way to

  preserve Individual-6’s important testimony for eventual use at trial.

IV.        CONCLUSION

           For the foregoing reasons, the Government submits that there are exceptional

  circumstances that justify the taking of a deposition of Individual-6 and that such a

  deposition would be in the interests of justice. Accordingly, the Government requests

  that the Court authorize a deposition of Individual-6, to take place in July or August

  2025.

                                                    Respectfully submitted,

                                                    ALINA HABBA
                                                    United States Attorney

                                                    /s/ Daniel A. Friedman
                                          By:       DANIEL A. FRIEDMAN
                                                    Assistant United States Attorney

  Dated: May 2, 2025




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                           CERTIFICATE OF SERVICE
      The undersigned certifies that, on this day I caused to be served, via the Court’s

Electronic Filing System (“ECF”), a copy of the Motion By the United States to Take

Deposition Under Federal Rule of Criminal Procedure 15.


                                             Respectfully submitted,


                                             ALINA HABBA
                                             United States Attorney

                                             /s/ Daniel A. Friedman
                                             DANIEL A. FRIEDMAN
                                             Assistant United States Attorney
Date: May 2, 2025


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