US Court allows binary options fraudster Lee Elbaz to take depositions of Yossi Herzog

Maria Nikolova

The Court’s ruling, however, does not address whether such deposition testimony will be admissible during trial.

As the start of the trial against Lee Elbaz, also known as Lena Green, the former CEO of Israel-based Yukom Communications who stands accused of binary options fraud in the United States, gets closer, the arguments about evidence and testimony arise frequently. One such argument concerns the defendant’s request to take depositions of a number of individuals in Israel.

On April 24, 2019, Lee Elbaz filed a Motion for Rule 15 Depositions, seeking an Order permitting her to take videotaped depositions in Israel of Yossi Herzog, Elad Bigelman, Nissim Alfasi, and Chanan Tabarko. The US Government opposed Ms. Elbaz’s Motion.

As an initial matter, the US Government said the defendant’s motion should be denied in the absence of a compelling explanation in her ex parte submission for the delay in seeking these depositions until two months before trial. Elbaz was indicted over a year ago (in March 2018). The Government has not been made privy to any explanation for this delay. Further, the Government argued that it is unclear whether the proposed deponents are unavailable to testify at trial. Also, according to the US Government, it is unclear whether the defendant has shown that the proposed testimony is material.

In the face of the Government’s arguments, the Court has sided with the defendant. On May 15, 2019, Judge Theodore D. Chuang of the Maryland District Court granted Elbaz’s request.

Upon notice to counsel for the United States, consistent with the requirements of Federal Rule of Criminal Procedure 15, Ms. Elbaz may take videotaped depositions of Yossi Herzog, Elad Bigelman, Nissim Alfasi, and Chanan Tabarko in Israel.

The Court’s ruling does not address whether such deposition testimony will be admissible during trial.

Elbaz was arrested by the FBI in September 2017. The Indictment charges her with one count of conspiracy to commit wire fraud and three counts of wire fraud. The Indictment alleges that Elbaz participated for over three years (from approximately May 2014 and continuing through approximately June 2017) in a fraudulent scheme involving the sale and marketing of binary options – including as the Chief Executive Officer of Yukom Communications. Yukom was an Israel-based business that provided sales and marketing services, including investor “retention services,” for two internet-based businesses that sold and marketed binary options with the brand names BinaryBook and BigOption.

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