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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK


_________________________________________
UNITED STATES OF AMERICA
Plaintiffs,

CASE NO.: S4 15 Cr. 667 (KPS)

VS.
TRAVELL THOMAS, et al.,
Defendants.
________________________________________

PLEASE TAKE NOTICE, that TRAVELL THOMAS, by her attorney, SCOTT F. RIORDAN
ESQ., upon the annexed affirmation and all the proceedings and papers heretofore had herein, hereby
moves for the following relief:
1. A Bill of Particulars;
2. Discovery;
3. Discovery with respect to FRE 403, 404(b) and 609;
4. Discovery with respect to FRE 702, 703 and 705;
5. Discover with respect to Selective Prosecution Material;
6. Disclosure of Brady Material;
7. Identity of Informants;
8. Production of Giglio material;
9. Early Disclosure of Jencks Act Material
10. Motion to Strike Language from the Indictment;
11. Motion to Dismiss Indictment;
12. Motion to Contravert the Search Warrrants;
13. Motion to Suppress Evidence;
14. Joinder in Motions of Co-defendants; and
15. Leave to file additional motions.
DATED: Buffalo, New York,
July 15, 2016
Respectfully submitted,
/s/Scott F. Riordan
SCOTT F. RIORDAN
Attorney for Defendant
3110 Delaware Avenue
Kenmore, New York 14217
(716) 362-0470

TO: EDWARD H. IMPERATORE, Esq.


Assistant United States Attorney

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK
_____________________________________
UNITED STATES OF AMERICA
vs.

AFFIRMATION

TRAVELL THOMAS,
Defendant.
__________________________________
SCOTT F. RIORDAN, ESQ., an attorney at law, pursuant to 28 U.S.C. 1746(2), declares the
following under penalty of perjury:
1.I represent the defendant, TRAVELL THOMAS, in the above-entitled action brought by
the United States of America and as such am familiar with the facts and circumstances of the case.
2.
requested.
3.

This affirmation has been divided into subheadings in accordance with the relief

The defendant has been charged by indictment with Conspiracy to Commit Wire Fraud, in

violation of Title 18 U.S.C. Section 1349, and Wire Fraud, in violation of Title 18, U.S.C. Section 1343. He
was arraigned and pleaded not guilty to the subject indictment.
1. BILL OF PARTICULARS
4.

Pursuant to Rule 7(f), of the Federal Rules Criminal Procedure, defendant asserts that

he requires the following information in order to adequately prepare a defense and avoid
surprise at trial.
5.

With respect to Count I of the subject indictment state:


CONSPIRACY
a)
The exact date on which t h e G o v e r n m e n t c l a i m s t h a t defendant,
TRAVELL THOMAS joined the alleged conspiracy;
b)

The identity of all known but unnamed co-conspirators;

c)
Each individual with which t h e G o v e r n m e n t c l a i m s t h a t defendant,
TRAVELL THOMAS had an agreement with respect to the conspiratorial goal;
d)

The nature of the alleged agreements described in (b) above;

e)

Whether it is alleged that defendant, TRAVELL THOMAS, had knowledge of the

alleged acts of wire fraud committed by co-defendants and/or unnamed co-conspirators;


f)
Whether it is alleged that defendant TRAVELL THOMAS, committed any acts of
wire fraud;
g)
Exactly how defendant TRAVELL THOMAS, "knew" that his co-defendants
and/or unnamed co-conspirators were committing wire fraud;
h)
The exact location of any evidence seized by authorities at the time of seizure that is
alleged to be part of the relevant conduct of the conspiracy;
j)
The exact location at which all acts were committed by defendant TRAVELL
THOMAS or any other co-conspirator, named or unnamed, in furtherance of the
conspiracy;
WIRE FRAUD

k)

Each violation of Title 18, U.S.C. Section 1343, alleged to be part of the conspiracy;

1)

The identity of each of the individuals with which whom t h e G o v e r n m e n t


c l a i m s t h a t defendant, TRAVELL THOMAS acted in concert;

m) The relationship which t h e G o v e r n m e n t c l a i m s t h a t of defendant


TRAVELL THOMAS had to each individual named in (1) above;
n)
The exact organizational, leadership, supervisory, or managerial actions or duties
which t h e G o v e r n m e n t c l a i m s w e r e undertaken by defendant TRAVELL
THOMAS with respect to the conspiracy;
o)
The amount of income which t h e G o v e r n m e n t c l a i m s w a s derived by
TRAVELL THOMAS from the activities described in k) above.
2. DISCOVERY
6.

The following categories of property are authorized for disclosure either under the literal

terms of Federal Rule of Criminal Procedure 16 and "are material to the preparation of the defendant's
defense or are intended for use by the government as evidence in chief at the trial, or were obtained from
or belong to the defendant", or are otherwise discoverable under other rules, or required to be disclosed in
order to protect the constitutional rights of the accused.
7.

The government has provided the defense with discoverable items, and the request

therefore encompasses those items not previously disclosed.


8.

Any written, recorded, oral or observed statement of the accused not already disclosed, or

of uncharged co-defendants or co-conspirators, or attributed to any uncharged co- defendant or

coconspirator, including notes, summaries or memoranda concerning such statements.


9.

Any transcript of testimony relating to the criminal action given by any uncharged

defendant or co-conspirator before any grand jury.


10.

Any hearsay evidence intended by the prosecutor to be introduced at trial.

11.

Each and every statement of any co-conspirator which will be relied upon at trial by the

Government to demonstrate the requisite existence of the conspiracy charged in the indictment
[in connection with an offer of otherwise hearsay testimony under Federal Rule of Evidence 801(d)(2)(E)].
See, Bourjail y v. United States, 483 U.S. 171 (1987).
12.

Since the accused is charged with conspiracy, he should have disclosure of the statements

of all uncharged co-defendants and/ or co-conspirators.


13.

Although Rule 803 (24) requires advance notice of hearsay statements thought to fall

within the "other expectations" exception to the hearsay rule, and in order to avoid confusion, waste of
time, and unfairness at trial, advance notice ought to be given of any out of court statements, sought
to be introduced at trial against the accused to the extent it is not contained in any of the recorded
conversations otherwise disclosed.
14.

Statements of all persons who offer hearsay testimony concerning statements

attributed to any alleged conspirator may be offered by the government to establish that a conspiracy
existed. Thus, to enable the accused to address the issue, such information must be disclosed.
SCIENTIFIC
15.

Any report, whether written or oral, or document, or portion thereof, concerning any

forensic or scientific test or experiment relating to the case. [As used herein, "report" includes both
written and oral communications; "document" includes reports, "lab notes" or, by any other designation,
memoranda, sketches, lists,

charts,

computations, electromagnetic recordings, videotapes, film,

photographs, and the like, Whether or not included in whole or part in any "report"; as used herein,
"concerning...examination,...test or experiment" includes preparation for, conducting of, immediate
results of, and evaluation of such procedures.

16.

It is necessary for the preparation of the defense, with respect to any matter at trial

concerning which there is expert opinion testimony, or where there have been physical examinations
or tests, to have not only simply a written "report" relating to that examination, but also the
immediate "results" and other documentation which was prepared in connection with all such
scientific procedures. The information is absolutely necessary to either prepare for cross examination
of scientific witnesses, or to obtain the assistance in advance of trial of appropriate expert witnesses
on behalf of the defense.
IDENTIFICATION
17.

Any visual or audio identification procedures utilized in the case, specifying the procedure,

the participants and the circumstances; any visual or audible representation of a person or voice used for
identification purposes.
FEDERAL DOCUMENTS
18.

All records of information routinely kept by the United States government or any of its

agencies or other persons operating on behalf of the United States, or shared with the United States by
local bodies of government and their correlative agencies which relate to any person or conduct relevant
to the charges in the indictment, including, but not limited to admission, exclusion, waivers, declarations,
or parole admission information.
19.

All investigative reports or documents prepared by the United States government or

local law enforcement agencies relating to the conduct charged in the present indictment or
considered by the Grand Jury in bringing the indictment or which are intended for use at trial or to be
relied upon at trial in presentation of the case or obtained for use in the examination of the accused or
any witness. The request includes criminal history information related to the accused and any
potential witness, and any documents concerning any alleged offenses underlying the indictment.
20.

All police investigative reports, complaints, evidence logs, interdepartmental memos, or

other documents maintained by any federal, state or local police or law enforcement agency, not yet

disclosed, relevant to any of the actions or conduct referred to in the indictment or considered by the
Grand Jury in bringing the within indictment, or which are intended for use at trial or to be relied
upon at trial in the presentation of the case or obtained for use in the examination of the accused or
any witness. The request includes criminal history information related to the accused and any
potential witness, and any documents concerning any alleged offenses underlying the indictment.
21.

All investigative reports or documents prepared by the United States government or

local law enforcement agencies or persons operating on their behalf, not already disclosed, relating to
the conduct charged in the present indictment or considered by the Grand Jury in bringing the
indictment or which are intended for use at trial or to be relied upon at trial in the presentation of the
case or obtained for use in the examination of the accused or any witness. The request includes
criminal history information related to the accused and any potential witness, and any documents
concerning any alleged offenses underlying the indictment.
LAW ENFORCEMENT DOCUMENTS
22.

Those investigative reports and documents prepared by the United States Government

or its agencies, or the Erie County Sheriff's Department, Drug Enforcement Administration, New York
State Police, Buffalo Police and/ or any other law enforcement agencies, in connection with the current
investigation and prosecution would ordinarily be disclosed at the time of trial. However, their early
disclosure is necessary for the orderly and meaningful preparation by the accused.
23.

Although, with certain exceptions, Rule 16 literally exempts many such documents

from disclosure, and 18 U.S.C. 3500 merely sets a later time for disclosure of some, neither of these
rules have been or can be inflexibly applied, especially where the denial of discovery threatens the
fairness of the trial.
SUMMARIES, LOGS OF CONVERSATIONS
24.

All monitoring logs, or summaries, or other documents concerning intercepted

conversations or observed conversations.

TITLE III WIRETAP, PEN REGISTER, SEARCH WARRANT


APPLICATIONS
25.

All applications for visual, electronic or other surveillance, pen registers, search

warrants, or any other type of seizure of information from the accused, other targets, or third persons
related in any way to the current indictment or the investigation which led up to the indictment.
26.

This includes any applications or relevant documents used to obtain the wiretap

27.

All information obtained as a result of such surveillance, seizures and any physical

orders.

property obtained, describing for each where, from whom, when, and under what authority it was
obtained as well as the current location of the property or information.
SURVEILLANCE
28.

In order to litigate any issues relating to the enforcement of the constitutional rights of

the accused in the investigatory stage of these proceedings, it is necessary for the accused to have
all summaries or logs of intercepted conversations, as well as any applications for eavesdrops, search
warrants, and pen registers, and the like. Including all such information from Texas and Canada that is
relevant to the case.
29.

It is necessary for the defendants to be provided with an inventory of exactly what

information was obtained as a result of each such surveillance techniques.


THIRD PARTY DOCUMENTS
30.

Any documents, not already disclosed, obtained from any banks, financial institutions,

or the like relating in any way to the indictment or the investigation which lead up to the indictment.
31.

Any documents, not already disclosed, obtained from any common carriers Whether for

packages, information, data, or persons, including telephone records, or the like relating in any way to
the indictment or the investigation which lead up to the indictment.
32.

The government and the grand jury may have obtained records from a variety of third

party record keepers. As the collection of that information was or may have been material to the
preparation of the case from the government's point of view, its review by the defense is also now

required in order to allow the defense to prepare.


OTHER DOCUMENTS
33.

Any other documents, not already disclosed, in the possession, custody or control or

with which by the exercise of due diligence could come within the control of the prosecution that
were prepared in connection with the case or are intended to be used in the trial of the accused.
34.

Rather than requiring the accused to guess about other types of documentary

information or evidence which has been collected in connection with the case or which might be material
to the preparation of the defense or may be used by the government at trial or which might be
favorable to the accused, the government should be required to specify any additional documents in its
possession or under its control which relate in any way to the present case so that the discoverability
of that information might be evaluated at the present time.
TAPES, PHOTOGRAPHS
35.

Copies of all video or audio tapes made in connection with the investigation which led

to the within indictment by any state, local, federal or foreign governmental agency.
36.

A precise description of the form and location of the original recordings, and the

process by which the current copy was created.


37.

Any photographs made in connection with the case.

38.

Any charts, graphs, maps, or drawings related to the investigation and prosecution of the

39.

Rather than requiring the accused to guess

case.
about other types

of

documentary

information or evidence which has been collected in connection with the case or which might be material
to the preparation of the defense or may be used by the government at trial or which might be favorable to
the accused, the government should be required to specify any additional documents or tapes or
photographs in its possession or under its control which relate in any way to the present case so that
the discoverability of that information might be evaluated at the present time.
TRANSCRIPTS

40.

Verbatim transcripts of all conversations identified by the government as being

relevant to the case.


41.

Verbatim transcripts of all additional conversations identified by any defendant as

being relevant in an ex parte proceeding to be conducted at least 30 days after the government
supplies the transcripts disclosed under the preceding paragraph.
PHYSICAL EVIDENCE
42.

All physical evidence collected or seized in connection with the case, including copies

of all property capable of being photocopied or reproduced. The request includes any seized
correspondence. The source and date and time of recovery, as well as the authority under which the
property was obtained, must also be disclosed.
43.

The defense has only selective knowledge concerning the physical evidence seized in

connection with the case. All physical evidence seized or obtained by any surveillance or evidence
gathering technique used by the government ought to be made available for inspection by the
accused, and, if subject to reproduction, copies should be provided to the defense.
WITNESSES
44.

The accused requests a list of the witnesses intended to be called by the government in

the trial of the action, in order to be able to prepare for trial and effectively present a defense.
45.

The conspiracy charged covers many incidents over an extended period of

time.

Knowledge of who are the witnesses and a complete bill of particulars will allow the defense to
properly prepare for trial and permit some element of fairness in the case.
46.

There is no prejudice to the government in requiring a list of witnesses to be given to

the defense.
47.

There is no possibility that supplying the witnesses' names prior to trial will increase

the likelihood that the government's witnesses will not appear or will be unwilling to testify.
3. DISCOVERY WITH RESPECT TO FRE 403,404(B) AND 609
48.

In order to permit defendant to determine whether or not grounds exist for objection,

defendant requests that the government be required, in accord with Fed. R. Crim. P. 12(d), to disclose
any evidence intended to be offered at trial that would cause undue surprise or prejudice, evidence of
other crimes intended to prove character, or evidence of prior convictions the government intends to
use for purposes of impeachment of defendant should he testify.
4. DISCOVERY WITH RESPECT TO FRE 702, 703 and 705
49.

Defendant requests the government provide your deponent with a list of the

government's expert witnesses, if any, and the substance of any reports from these witnesses that may
be in their possession, as well as written summaries of their anticipated testimony.
DISCOVERY OF CO-CONSPIRATOR STATEMENTS
AND A HEARING PURSUANT TO FRE 104
50.

Defendant requests the production of co-conspirator statements which the Government

intends to introduce at trial since such statements will be attributed to the defendant under FRE
801(d)(2)(E).
51.

Your deponent would also request a hearing pursuant to FRE 104 to determine whether

the Government can make a sufficient showing that a conspiracy, as opposed to a mere
employer-employee relationship, existed and that the statements to be introduced are admissible
under the co-conspirator hearsay exception.
5. DISCOVERY FOR SELECTIVE PROSECUTION
52. Under Rule 12(b)(3)(A), an indictment may be dismissed due to a defect in instituting the
prosecution, such as selective or vindictive prosecution and must be brought before trial. In order to prevail on a
selective prosecution or vindictive prosecution, the defendant must provide ... evidence of discriminatory intent
specific to [his] case. Id. (citing United States v. Barnes, 532 F.Supp.2d 625, 637 (S.D.N.Y.2008)) (emphasis
omitted). That is, to establish the discriminatory intent element in support of a request for discovery on a
selective [enforcement] claim, a defendant must produce some evidence that the decisionmakers in his case acted
with discriminatory purpose. Barnes, 532 F.Supp.2d at 637 (quoting McCleskey v. Kemp, 481 U.S. 279, 292
(1987)) (emphasis in Barnes ); see also Cousins, 2014 WL 5023485, at *5 (To establish discriminatory intent, [a
defendant] must show that the decision makers in [his] case acted with discriminatory purpose. )

(quoting Chavez, 251 F.3d at 645). As a result, the decision making process is an essential part of the discovery.
Mr. Thomas seeks such discovery as well as statistical evidence.
53.

In United States v. Armstrong, 517 U.S, 456 (1996), the Supreme Court held that a defendant

seeking to obtain discovery on a selective prosecution claim must set forth some evidence tending to show the
existence of the essential elements of the [selective prosecution] defense, discriminatory effect and discriminatory
intent. Armstrong, 517 U.S. at 468 (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). That
showing must include some evidence that similarly situated defendants of other races could have been
prosecuted, but were not. Id. at 469. The Court did not decide the question of what showing of discriminatory
intent sufficed to support discovery. United States v. Alameh, 341 F.3d 167, 174 (2d Cir.2003).
54.

Although ... the Supreme Court ... [has not] articulated a framework for evaluating the sufficiency

of a motion for ... discovery on a selective enforcement claim under the Equal Protection Clause, [several] Circuits
have in such cases ... applied the standard set forth by the Supreme Court in United States v. Armstrong ...
regarding the showing necessary to obtain discovery on a claim of selective prosecution. United States v.
Dixon, 486 F.Supp.2d 40, 4445 (D.D.C.2007) (citing United States v. AlcarezArellano, 441 F.3d 1252, 126465
(10th Cir.2006); United States v. Barlow, 310 F.3d 1007, 101012 (7th Cir.2002)); see also United States v.
Viera, No. 14 CR. 83(ER), 2015 WL 3833797, at *2 n. 4 (S.D.N.Y. June 19, 2015) ( for discovery purposes,
[selective enforcement and selective prosecution claims] are analyzed under the same legal standard ); United
States v. Cousins, No. 12 Cr. 865, 2014 WL 5023485, at *2 (N.D.Ill. Oct. 7, 2014) (Although Armstrong dealt
only with a selective prosecution claim, a defendant seeking discovery on a selective enforcement claim also must
make the showing Armstrong requires.) (citing Barlow, 310 F,3d at 1010).
55.

To show discriminatory effect under the Armstrong standard, a defendant seeking discovery on

a selective enforcement claim must make a credible showing that similarly situated individuals of a different
race were not [targeted]. United States v. Bass,536 U.S. 862, 863 (2002) (quoting Armstrong, 517 U.S. at 465,
470). The Seventh Circuit has stated that [a]though statistics alone rarely establish an equal protection violation,
they may be sufficient to establish the discriminatory effect prong of the Armstrong test. Barlow, 310 F.3d at
1011 (citing Chavez v. Illinois State Police, 251 F.3d 612, 640 (7th Cir.2001)).
56.

After the verdict, a Southern District of New York district court sua sponte directed

the prosecution to provide it with a chart showing the number of black and white FBI agents indicted and
convicted for filing false statements over a 10-year period. (T.T. 611). Upon reviewing the chart, the District Court
declined to hold a hearing or otherwise take action. (Sentencing Hr'g 8-10). United States v. Busby, 524 F.App'x
744 745 (2d Cir. 2013) (cited in In U.S. v. Busby, 2016 WL 47450 (January 4, 2016) (J. Carter)). See also, United
States v. Cousins, No. 12 Cr. 8651 (AJSE), 2014 WL 5023485 at *4 (N.D.Ill. October 7, 2014) (rejecting the
contention that the entire white population of the Northern District of Illinois was the appropriate pool of
similarly situated persons and requiring that defendant must show that the ATF chose not to conduct stash-house
sting operations to ensnare members of another race who fell within the ATF's guidelines regarding whom those
operations may target.).
57.

Indeed, despite the Cousins court's finding that defendants failed to satisfy the Armstrong standard,

the court allowed for limited discovery of ATF's policies and procedures in place at the time of defendant's arrest
regarding the selection criteria for targets of phony stash-house robbery stings. 2014 WL5023485 at *4. The
court explained it was sympathetic ... to the argument that without information as to what ATF is using as its
selection criteria ... defendant faces a difficult task of identifying similarly-situated non-minorities who were not
targeted. Id. United States v. Brown, 12 Cr. 632 (N.D.Ill. Oct. 3, 2014) (where the court ordered
additional discovery to determine whether the Government was targeting minorities in connection with
investigating and prosecuting fake stash house cases)
58.

As to the evidence of discriminatory intent necessary to support a request for discovery, the Second

Circuit has acknowledged that [t]he Court [in Armstrong ] did not decide the question of what showing of
discriminatory intent sufficed to support discovery, Alameh, 341 F.3d at 174. The defense acknowledges that a
defendant must at least produce some evidence of discriminatory intent. See Bass, 536 U.S. at 863; Alameh, 341
F.3d at 173. Startling statistics provide credible evidence that the decision to prosecutor Mr. Thomas and another
defendant, John Todd Williams, was based on discriminatory intent.
59.

It is the usual practice of the Federal Trade Commission (the FTC) to handle debt collection

companies and owners through civil fines and settlement or disposition and often to work out a civil agreement as
the disposition of this case. The owners are often unaware of many tactics that are employed by those in their
companies and once they are advised by the FTC as to any issues they agree not to engage in any such practices

and ensure their employees do not do so and pay a substantial civil fine. In short, civil disposition is the traditional
method. See Debt collector faces 20 years in prison for a scheme that victimized 6,000 people nationwide, (June
5, 2016) http://www.reuters.com/article/us-usa-debtcollection-idUSKCN0ZL1GI attached hereto as Exhibit A
(emphasis added) (discussing the more recent aggressive approach of the Southern District over behavior
traditionally pursued civilly by regulators).
60.

Prior to the criminal charge, Mr. Thomas went voluntarily to the FTC and cooperated fully. The

parties worked out an agreement resulting in a civil stipulation and order signed by the parties. Mr. Thomas paid
the fines and agreed to refrain from any problematic conduct. See Stipulation attached as Exhibit B. The FTC
case was handled through the Western District of New York (15-cv-112S). Despite the case being handled
through the civil FTC process and in a different jurisdiction, the United States Attorney for the Southern District
of New York chose to prosecute Mr. Thomas criminally among the many debt fraud cases that have been handled
by the FTC. Mr. Thomas is the owner of debt collection companies at issue in this case. Mr. Thomas is a black
male.
61.

According to the Reuters article, the Southern District of New York United States Attorneys

Office has prosecuted four consumer-focused cases since 2013. Two involve debt collection cases against the
owners of companies and their companies: U.S. v. John Todd Williams (14 cr 00784) and U.S. v. Travell Thomas,
the Defendant in this case. In the Reuters article it is conceded that [t]he prosecution is part of the more
aggressive approach taken by Manhattan U.S. Attorney Preet Bharara against consumer-focused scams, which
includes filing criminal charges over behavior traditionally pursued civilly by regulators. See Exhibit A
(emphasis added)
62.

John Todd Williams owned Williams Scott and Associates a debt collection company also

prosecuted by the United States Attorneys Office for the Southern District of New York. Like Mr. Thomas, Mr.
Williams was involved in a civil case with the FTC (14-cv-1599), his case arising out of the Northern District of
Georgia. His civil case resulted in a stipulation as well. Nevertheless, he too was prosecuted by the United States
Attorneys Office for the Southern District of New York. John Todd Williams is a black male. See Exhibit A
photograph.
63.

Neither case brought by the United States Attorneys Office for the Southern District originated in

the Southern District of New York civillyinstead, the Western District of New York and the Northern District of
Georgia. The FTCs website lists over 40 cases involving debt collection since 2013. See List attached as Exhibit
C. That list is even higher not even accurate because it does not include Mr. Thomas case which is listed in the
2668 cases on the FTC website but not their own selection of debt selection cases. See FTC.gov Cases and
Proceedings
64.

Other owners of debt collection companies have settled with the FTC on debt collection cases and

criminal charges were not brought though they could have as the orders and stipulations were similar. See list of
cases and FTC.gov website for accompanying orders. These companies are not known to be black male owned.
Indeed, according to SBA.gov, in 2012 the number of business owners who were minority was 14.6% with black
business owners accounting for 49.9% of those owners. See https://www.sba.gov/.../Issue%20Brief%202,%20
Business% 20Owner%20Demographics.pdf.
65.

It is evident that the prosecution was deliberate. These two cases were taken by Preet Bharara as

part of his aggressive strategy to take on more cases and he chose two cases to take on both of them with black
male owners. As a result, whereas most cases are traditionally handled civilly, 100 percent of the debt collection
cases that are being prosecuted against owners of debt collection companies by Mr. Bhararas office are being
brought against black male business owners. This statistic is more than sufficient to justify the motion, but at a
minimum to permit discovery.
66.

As to discovery, Mr. Thomas seeks statistical evidence of the race of the owners of debt collection

companies that came before the FTC that were settled civilly and were not prosecuted criminally. Mr. Thomas
seeks discovery of the internal memorandum and documents that involve the decision making that went into
deciding to prosecute the two cases against male black owned companies and their owners including
documentation sent by the FTC. Mr. Thomas also seeks a deposition of Preet Bharara and the Assistant United
States Attorneys or other entities including agents and officers, involved in the decision to go after the two black
male company owners and their companies.
6. DISCLOSURE OF BRADY MATERIAL
67.

Deponent requests that all relevant and material evidence or information, Whether

admissible at trial or not, Whether regarding facts known or occurrences known, or the absence of

such facts or occurrences, which are known to the prosecutor or which could become known upon
diligent inquiry to either the prosecutor or to any persons under the prosecutor's direction or control
which is in any way favorable to the defendant, Whether by detracting from the prosecution's case or
detracting from the credibility of any of the prosecution's witnesses, be disclosed.
68.

Without in any way limiting the prosecutor's duty to disclose such favorable material, the

defense requests that the following specific information, if it exists, should be disclosed:
a) Any statements, records, or information indicating that any prospective witness has
given contradictory or untrue information in the course of the investigation.
b) Any information which may indicate that a prospective witness
given information deemed inconsistent or materially different from
the information received from other more reliable sources.
c) The names and addresses and/ or statements of any persons who
may have been interviewed by or on behalf of, the prosecution, or
who are known to have been witnesses to the events which underlie
the charges, who the People do not intend to call as witnesses.
d) The existence of any Government agents or informants or
information or cooperating individuals in the case any representation,
offer or agreement or understanding regarding any past, present or
future benefit to be given such person or persons as a result of or in
relation to cooperation with the prosecution.

e) Any information to the effect that the present prosecution is based


upon or derived from evidence acquired as a result of Governmental
action vocative of Constitutional standards. Such request encompasses
any information which might affect the Court's decision or any
suppression issue in a way that is favorable to the defendant.
f)
Any information and/ or documentation which reflects any
misidentification or non-identification, whether it be corporeal, voice,
photograph or otherwise, of the defendant as a participant in any of the
alleged crimes.
69.

Defendant also requests information which may be utilized for the impeachment of

prosecution witnesses, including the specific disclosure of the following which may be in the
possession, custody or control of the prosecution or which, with due diligence, could become known to
the prosecution:
g)
Any records or information revealing prior convictions
attributed to any witness to be called by the People, including, but

not limited to, relevant police records, or "rap sheets".


h)
Any records, including police personnel records, or
information revealing the prior misconduct or any bad,
vicious, or immoral acts on the part of any witness.
i)
Any consideration, or promise of consideration, or any
expectation of consideration which obtains with respect to any
witness intended to be called by the prosecution or given to
anyone Whether such person has provided information in the
matter, Whether or not intended to be called by the prosecution.
Such "consideration" is not limited to leniency, favorable treatment
or assistance, with respect to any pending legal proceeding but also
includes any witness fees or any special provisions for protection
or any other motive or bias on the part of any such person in favor
of the prosecution, or against the defense, or which may act as an
inducement for information or testimony or to color such
information or such testimony if provided.
j)
Any threats, Whether expressed or implied, Whether
direct or indirect, or any other measures which may be directed
against any witness, including threats of criminal prosecution or
investigation, or the potential of such prosecution or investigation
or any probationary parole or deferred prosecution or custodial
status of any witness over which the prosecution has real, apparent,
or perceived influence.
k)
Any information as to any prospective prosecution
witness having a history of mental or emotional disturbance.
Any information as to any Governmental agent or informant
who may have a history of mental or emotional disturbance.
l)
Existence and identification of each occasion on which
any witness and/ or any Governmental agent or informant has
testified or provided information before any Court, Grand Jury,
or other tribunal given in relation to the defendant, the
investigation, or any of the facts in the case.
m)
The existence and identification of each occasion on
which any witness or any person who was or is an informant,
accomplice, or co-conspirator has testified before any Court,
Grand Jury, or other tribunal.
n)
The same records and information requests in the
above paragraphs "a" through "g". Supra, is also requested
with respect to each and every non-witness declarant whose
statements may be offered in evidence.
o)
Defendant requests any and all information possessed by
the government and not previously requested under Brady, that
casts a shadow on government witnesses' credibility.
7. IDENTITY OF INFORMANTS

70.

Review of material disclosed to date reveals that many of the informants referred to

were participants in the criminality alleged in the Indictment.

71.

In order to prepare an adequate defense it is necessary that informant identities be

revealed so that counsel may attempt to interview them and otherwise investigate their allegations,
biases, and benefits derived from cooperating with the government.
72.

In the event the Government should decline to identify these informants, your deponent

requests an in camera review to evaluate the competing interests in such disclosure.


7. REVEAL ANY AGREEMENT, CONCESSION OR GRANT IMMUNITY
73.The defendant moves the Court to require the Government to reveal any agreement,
concession, or grant of immunity and its terms, Whether the same be formally granted or informally
granted, by the United States of America to any witness or prospective witness in the case. The motion
refers, but is not limited to, the following:
p)
Full disclosure of all immunity transaction with
witness, prospective witnesses, or co-defendants in the case,
pursuant to Giglio v. United States, 405 U.S. 105 (1979).
q)
The text and/or substance of any initial plea bargain,
offer, or agreement of leniency, in return for cooperation made
prior to the indictment of defendant or co-defendant between the
government of the United States or any state, and any person
who is co-defendant, informant, witness, or participant in any
act alleged in the indictment or any previous or current
investigation conducted by any law enforcement agency or
agencies upon any person or persons which might affect:
r)
The charges, state or federal which might be brought
against said unknown witness;
s)
The charges, state or federal, which might be brought
against any member of said unknown witness, family,
including in-laws or relations by previous marriages;
t)
The degree of cooperation required of the said
unknown witness to assist the government beyond the limits

of the subject matter of the indictment to provide information of other criminal


activities;
f)
The text and/or substance of any plea bargain or offer or agreement of
leniency in return for cooperation made af ter the indictment of Defendant or codefendant between the government of the United States or any state and any
person who is informant, witness to or a participant in any act alleged in the
indictment or any previous or current investigation conducted by any law
enforcement agency or agencies upon any person which might affect:

g)
The charges, state or federal, which might be brought against said
unknown witness;
h)
The charges, state or federal, which might be brought against any
member of said unknown witness, family, including in laws or relations by
previous marriages;
i)
The degree of cooperation required of the said unknown witness to assist
the government beyond the limits of the subject matter of the indictment to provide
information of other criminal activities;
j)
Any and all grants of immunity from prosecution of the terms and
conditions of any agreements to dismiss, reduce charges, or not bring charges
against an alleged co-conspirator or codefendant, or anyone else involved in the
investigation which preceded the investigation who could have been a
coconspirator or co-defendant, including any confidential informant, if in
writing, and, if not in writing, any memorandum or any oral agreement
concerning same as regards the case of the initial investigation which gave rise
to the investigation and indictment.

k)
All evidence or other information in the possession of the United States of
America which arguably reflects adversely on the credibility of any prosecution
witness, including, but not limited to, mental and physical examination and
reports thereof.

1)

Evidence obtained from or relating to any government informant which is


arguably exculpatory in nature, pursuant to Brady v. M aryland, 373 U.S. 83
(1963).

m)
All other information known by or available to the
prosecuting attorney or any other law enforcement agency
connected with the investigation in the case which is
arguably exculpatory in nature, Id.
n)
Under the 1995 United States Supreme Court case, Kyles
v. Whitley, the prosecutor has an affirmative duty to seek out
exculpatory evidence, even if it is being concealed by law
enforcement. 373 U.S. 83 (1995). Thus, the motion includes a
request that the prosecutor order a review of the relevant Federal
Bureau of Investigation field off ice's I-drive and any other FBI
or other relevant law enforcement agency's temporary records
storage drive for potential Brady material, and provide the
discovery to Defendant. Furthermore, under Brady and its

progeny, prosecutors are not supposed to decide what is, or is


not, material and exculpatory, if in doubt, that decision must be
made by a judge. Brad y v. Maryland, 373 U.S. 83 (1963).
74.

Further, Defendant respectfully requests that the Court's order in connection herewith be

a continuing order which shall persist throughout and until the conclusion of the trial on the merits in the
case or thereafter during any appellate process if such should be the case.
75.

The Defendant requests that the Court issue an order requiring the Government to

reveal any agreement, concession, or grant of immunity, whether formally or informally granted, by
the United States to any witness or potential witness in the case. The Defendant also requests that the
terms of any agreement, concession, or grant of immunity be revealed as well.
76.

The disclosure of the requested information falls within the gambit of the Supreme Court

case Giglio v. United States, 405 U.S. 150 (1972). The progeny of Giglio have extended its holding to
require disclosure of all forms of impeaching evidence affecting the credibility of a witness, which
would include the fact that a witness made an agreement or concession with the Government, or was
granted immunity by the Government. See United States v. Bagley, 473 U.S. 667 (1985).
77.

When the reliability of a given witness may well be determinative of guilt or

innocence, non-disclosure of evidence affecting credibility falls within the general rule requiring
disclosure of such beneficial treatment of witnesses. Napue v. Illinois, 360 U.S. 264 (1959).
78.

Where the government fails to disclose evidence of any understanding or agreement as

to future prosecution of a key government witness, due process may require reversal of the conviction.
Haber v. Wainwright, 756 F.2d 1520 (11th Cir. 1985)(citing Giglio, 405 U.S. 150; Napue, 360 U.S. 264;
Smith v. Kemp, 715 F.2d 1459 (11th Cir.), cert. denied, 464 U.S. 1003 (1983); Williams v. Brown, 609 F.2d
216 (5th Cir. 1980)). The government has a duty to disclose such understandings for they directly affect
the credibility of the witness. Id. See also United States v. Irwin, 661F.2d 1063 (5th Cir. 1981), cert.
denied, 456 U.S. 907 (1982)(stating that the duty of disclosure applies even where evidence relates only
to credibility of the key government witness). The duty of disclosure is even more important where the
witness provides the key testimony against the accused. Id. (citing Giglio,405 U.S. 150). The evidence

allows the defendant to impeach the witness because the agreement directly bears on the witness' motive
or bias in testifying for the government.
79.

Giglio v. United States, 405 U.S. 150 (1972), did not speak in terms of the

government's duty to disclose only "bona fide enforceable grants of immunity." Id. Its reach
extends to "any understanding[s] or agreement[s]." Haber, 756 F.2d 1520. (emphasis in original).
Even mere "advice" by a prosecutor concerning the future prosecution of a key government
witness may fall into the category of discoverable evidence since it could constitute an informal
understanding which could directly affect the witness' credibility before the jury. Id. In Haber v.
Wainwright, 756 F.2d 1520, there arguably was an understanding that the witness would not be
prosecuted for a number of prior crimes. The court held that they would inherently affect the
credibility of the witness and the defendant was entitled to know about the agreement.
80.

In United States v. Gaev, 24 F.3d 473 (3d Cir. 1994), the court stated that when a

coconspirator appears as a witness and testifies that he took part in the crime with which the
defendant is charged, her credibility will automatically be implicated. The court furthe opined:
Questions will arise in the minds of the jurors
Whether the co-conspirator is being prosecuted, why
he is testifying, and what he may be getting in return.
If jurors know the terms of the plea agreement, these
questions will be set to rest and they will be able to
evaluate the declarant's motives and credibility.
Gaev,24 F.3d at 477.
81.

In Campbell v. Reed, 594 F.2d 4 (4th Cir. 1979), the court held that a tentative promise

of leniency might be interpreted by a witness as contingent upon the nature of her testimony. "Thus,
thee would be a greater incentive for the witness to try to make her testimony pleasing to the
prosecutor." Campbell, 594 F.2d 4. See also United States v. Sudikoff 36 F.Supp. 2d 1196 (U.S. Dist.
Ct.Ctrl. Dist. Cal. 1999)(where the court determined that evidence that weakens the credibility of
the prosecution witness has long been considered Brady material (citing Thomas v. United States, 343
F.2d 49 (9th Cir. 1965)) and thus, evidence that would show bias, motive to lie or exaggerate, or
dishonesty of the witness is within the scope of Brady).

83.

In Giglio, 405 U.S. 150 (1972), the Supreme Court found a Brady-type due process

violation by the government's suppression of evidence of a leniency agreement with an accomplice


witness. Specifically, the Supreme Court stated that the accomplice witness' "credibility as a
witness was . . . an important issue in the case, and evidence of understanding or agreement as to a
future prosecution would be relevant to her credibility and the jury was entitled to know of it."
Thus, the suppression by the Government of such evidence violated due process. Giglio, 405 U.S.
150.
84.

The Defendant is entitled to have revealed to him by the prosecution any agreement,

concession, or grant of immunity given to any witness or potential witness in the case.

The

information is detrimental to the defendant's adequate preparation of her defense.


85.

Finally, under Kyles v. Whitley, the prosecutor has an affirmative duty to seek out

exculpatory evidence, even if it is being concealed by law enforcement. 373 U.S. 83 (1995). Thus,
the motion includes a request that the prosecutor order a review of the relevant Federal Bureau of
Investigation field office's I-drive and any other FBI, DEA, or other relevant law enforcement
agency's temporary records storage drive for potential Brady material, and provide the discovery to
Defendant. Furthermore, under Brady and its progeny, prosecutors are not supposed to decide what
is, or is not, material and exculpatory, if in doubt, that decision must be made by a judge. Brady v.
Maryland, 373 U.S. 83 (1963).
8. EARLY DISCLOSURE OF JENCKS ACT MATERIAL
86.

The defendant moves for the entry of an Order by the Honorable Court to provide

him with all statements and reports within meaning of the Jencks Act, 18 U.S.C. 3500, not less than
forty-eight hours prior to the trial in the case.
87.

Defendant moves for the entry of an Order by the Honorable Court to provide him

with all statements and reports within the meaning of the Jencks Act, 18 U.S.C. 3500, not less than
forty-eight hours prior to the trial in the case.
88.

In the interests of judicial economy in avoiding the inevitable delay associated with

delayed production of Jencks Act material until after a government witness testifies and in order to
avoid jury confusion that necessarily results from such delay, the defendant asks that the Court
direct the government to turn Jencks Act material over to the defense prior to trial. Although the
provisions of the Jencks Act dictate that such material should be turned over after the witness has
testified, the preference for later disclosure was promulgated to protect the witness from harassment,
a threat that is not present in the case. Furthermore, due to the complexity of the case it is in the best
interest of justice to have the documents turned over prior to trial.
89.

Due to the complex nature of the case, early disclosure of Jencks Act material is

warranted. Only by early review of the Jencks Act material will the defense be able to properly put
forth a clear and concise case, avoiding the inevitable delays that come with turning over the
material after the witness has testified. Furthermore, the time considerations of reviewing such
material during the trial will necessarily prevent the defense from fully reviewing and evaluating the
material disclosed. Given the, due process, as well as effective assistance of counsel concerns dictate
that the material should be turned over to the defense pretrial. The Jencks Act itself, as noted by the
Third Circuit's decision in Holmes, requires ample time to prepare using the materials. Holmes, Id.
at 41. Without adequate preparation time the right of the defendant to have the information
disclosed is worthless. The value of the information to the defense is directly tied to the amount of
time that the defense has to evaluate the material and prepare for trial. Furthermore, the lack of any
threat of witness harassment or the need for witness protection, the underlying rational for the rule
against early disclosure, supports the motion for early disclosure.
90.

Based on these considerations, in addition to the case law set forth above, the

defendant respectfully requests that the Court grant the motion for early disclosure of Jencks Act
materials.
10.

91.

MOTION TO STRIKE LANGUAGE FROM THE INDICTMENT

Merely descriptive allegations in an indictment are irrelevant to the charges and may be stricken

on defendants motion. United States v. Root, 366 F.2d 377, 381 (9th Cir. 1966). When these irrelevancies are

prejudicial, they must be stricken. United States v. Mandel, 415 F. Supp. 997, 1009 (D. Md. 1976). The
descriptive language the defendant is moving to strike can serve only the prejudicial purpose condemned in
Brighton Building, supra: to persuade the jury that the charges have great and hidden implications.

92.

In the instant case, the defendant is charged with Conspiracy to Commit Wire Fraud, in

violation of Title 18 U.S.C. Section 1349, and Wire Fraud, in violation of Title 18, U.S.C. Section 1343.
Thus, the government has the burden to prove that the Defendant committed wire fraud, as defined by Title
18, United States Code, Section 1343, and also conspired to commit wire fraud on the dates and times alleged
in Counts 1 and 2 of the Indictment. However, on page 3 of the Indictment under the Relevant Persons and
Entities, the Indictment goes on to state that, From in or about January 2010 through in or about November
2014, the Company collected more than approximately $31 million thousands of victims contacted across the
United States. Of the money that was that the Company took in from the victims, approximately $850,000.00
in cash was paid to Maurice Sessum, the defendant, approximately $750,000.00 in cash was paid to Travell
Thomas, the defendant, approximately $1.4 million was cashed from banks and ATMs, and tens of thousands
of dollars was used to pay for Travell Thomass gambling expenses, tickets for professional sports games,
Travell Thomass wedding reception, jewelry, and cosmetic surgery for his wife, among other things.
93.

Clearly, even assuming, arguendo, that the information contained in that portion of the

Indictment was accurate, which the Defendant does not concede, how much the defendant profited and/or how
he spent the funds have absolutely no relevance as to whether the Defendant conspired to commit wire fraud
or actually committed wire fraud on the dates and times alleged in the Indictment. Moreover, the references to
how much money the Defendant made or how he allegedly spent it is not an element of any of the crimes
charged in the Indictment.
94.

Paragraph 12 of the Indictment states, in pertinent part, the defendant knowingly

misrepresented to victims over the telephone, including to a victim who stated that she was physically disabled
and unable to work, among other things
95.

Paragraph 14 of the Indictment states, in pertinent part, the defendant knowingly

misrepresented to victims over the telephone, including to a victim who stated that she was homeless, among

other things
96.

Obviously, whether any particular victim may have been disabled, unable to work, or

homeless, even if true, is patently irrelevant to proving either of the charges, and there can be no question that
its sole purpose is to inflame the jury.
96.

The inclusion of the above-referenced language contained in the Indictment clearly

constitutes surplusage as defined by Rule 7(d) of the Federal Rules of Criminal Procedure. There is simply
no rational basis for including this inflammatory language in the Indictment. It is clear that this language
serves no purpose other than possible prejudice to the defendant. United States v. Verra, 203 F. Supp. 87,
90 (S.D.N.Y. 1962); United States v. Bonanno, 177 F. Supp. 106, 116 (S.D.N.Y. 1959) (obstruction-of-justice
allegations of grand jury subject-matter stricken), convictions revd on other grounds, 285 F.2d 408 (2d Cir.
1960).
97.

For those reasons, the above-referenced language should be struck from the indictment.
11.

98.

DISMISSAL OF THE INDICTMENT

As previously noted, Travell Thomas, the defendant, is charged with Conspiracy to Commit

Wire Fraud, in violation of Title 18 U.S.C. Section 1349, and Wire Fraud, in violation of Title 18, U.S.C.
Section 1343.
99.

15 U.S.C. 1692 (hereafter FDCPA) is a federal statute that regulates the conduct of debt

collectors, and specifically defines the conduct that is has been deemed an unfair practice, and has prohibited
debt collectors from engaging in misleading conduct. 15 U.S.C. 1692(e).
100.

In fact, the prohibitions contained in 15 U.S.C. 1692(e) describe the same conduct that the

defendant is alleged to have engaged in, namely, making misrepresentations to debtors in order to get them to
pay debts. See 15 U.S.C. 1692e.
101.

Significantly, 15 U.S.C. 1692(k) explicitly indicates that violations of the FDCPA are civil in

nature. 15 U.S.C. 1692(k). 15 U.S.C. 1692 is utterly devoid of any indication that violations of this statute
may result in a federal criminal prosecution.
102.

Clearly, if Congress had intended to criminalize the conduct delineated in 15 U.S.C. 1692, then

it could have; instead, understanding that debt collection is a legitimate business, decided to regulate the
industry by prohibiting certain conduct, and setting the civil consequences for violating this civil statute.
103.

Indeed, the normal consequences for violating the FDCPA are routinely handled by the FTC, the

agency designated to prosecute these violations, and result in civil penalties, the worst of which is a ban from
collecting debts in the future.
104.

Interestingly, only this U.S. Attorneys Office has elected to criminally prosecute violations of

the FDCPA, and it has yet to be seen whether those prosecutions ultimately stand up on appeal.
105.

Thus, even assuming that the Defendant engaged in the conduct alleged in the Indictment, the

Defendant would have been wholly unaware that this conduct could be deemed criminal, as the "fraud" that
was allegedly committed was merely a violation of the FDCPA.
106.

For these reasons, it is impossible for the defendant to have the requisite mens rea to commit a

crime, as the statute not only designates violations of the statute as civil in nature, it states the consequences for
any egregious conduct. 15 U.S.C. 1692(k).
107.

Moreover, the FDCPA specifically states that the FTC has the authority to prosecute violations

of the FDCPA. 15 U.S.C. 1692l. The U.S. Attorneys Office is not an agency authorized to prosecute these
violations under the statute.
108.

Consequently, the US Attorney's Office does not have jurisdiction to criminalize conduct that is

already regulated by federal law and has designated the FTC as the enforcement agency responsible for
prosecuting violations of the FTC.
109.

Lastly, the FDCPA actually allows debt collectors to add on fees to debts provided that the

original agreement allowed for such fees. 15 U.S.C. 1692f. For this reason, it would seem to follow that to
prove that there was "juicing" of the debts, there must be proof that the added on fees were not part of the
original agreements, as this is a necessary element under the FDCPA.
110.

Based upon the foregoing, it is respectfully submitted that violating the FDCPA is not a crime,

but a civil violation, that the FTC is the federally designated agency to prosecute any alleged violations of the
FDCPA (which, incidentally, has already been done in the Western District of new York under Docket Number

15-CV-112), and for these reasons, the Indictment must be dismissed for failing to allege a crime and for lack
of jurisdiction.
12.
111.

MOTION TO CONTROVERT A SEARCH WARRANT AND SUPPRESS EVIDENCE


In pretrial discovery the government has notified the defendant that various evidence was

seized as a result of the execution of a search warrant.


112.

On August 18, 2015 United States Magistrate Judge Debra Freeman from the Southern

District of New York issued a search warrant and non-disclosure order. The search warrant was based upon the
affidavit of Shawn Smyth, a criminal investigator for the United States Attorneys Office for the Southern
District of New York pursuant to Title 18 USC 2703(b)(1)(A) and 2703(c)(1)(A) (the Stored Communication
Act). Finding that there was probable cause to believe the e-mail account of defendant Travell Thomas
(travellthomas@yahoo.com) which was controlled by Yahoo and contained evidence, fruits and
instrumentalities of crime. The search warrant specified Attachment A. On November, 2015, United States
Magistrate Judge Gabriel W. Gorenstein from the Southern District of New York issued a search warrant for
defendants personal phones, and the accompanying affidavit was again from Shawn Smyth, and was virtually
identical to Attachment A on the application for the Yahoo search warrant.
113.

Attachment A directed Yahoo (the provider) to produce to law enforcement officers an

electronic copy of the information specified in the Attachment. The information to be produced by the
provided included:
1.

114.

E-mail content. All e-mails sent to or from, stored in draft form, in,
or otherwise associated with the Subject Account, including all
message content, attachments and header information (specifically
including the source and destination address associated with each email, the date and time at which e-mail was sent and the size and
length of each e-mail), limited to items sent, received or created
between April 1, 2012 and the present.

The Attachment also authorized the providing of all address book, content list or similar list

associated with the Subject Account and all subscriber and payment information regarding the account
including but not limited name, user name, address, telephone number, alternate e-mail addresses, registration
IP address, account creation date, account status, length of service, types of services utilized, means and source
of payment, and payment history.

115.

The search finally, Attachment A, included all transactional records, customer correspondence

and preserved records.


116.

In sum and substance, the search warrant authorized the seizure and search of everything

contained within Mr. Thomass account.


117.

It is apparent, therefore, that the search warrant authorization contained in Attachment A was

overbroad and amounted to a general warrant. And, more particularly, the Application by the investigator for
the search warrant was not incorporated by reference into the warrant itself. As will be set forth below, there
was no basis upon which to issue the warrant and neither was there a basis for the investigator from the
Southern District of New York or anyone associated thereto to search the information provided by AOL.
118.

General warrants are prohibited by the Fourth Amendments command that no warrants shall

issue [unless] particularly describing the place to be searched and the persons or things to be seized. (United
States Constitution, Fourth Amendment; Coolidge v. New Hampshire, 403 US 443, 467 (1971).
119.

Thus, courts have held that in order to prevent a wide-ranging exploratory search, (Maryland

v. Garrison, 480 US 79, 84 (1987)) the warrant must enable the executing officer to ascertain and identify
with reasonable certainty those items that the magistrate has authorized him to seize. United States v. George,
975 F2d 72 (2d Cir., 1992). See also Steele v. United States, 267 498, 503; United States v. Vargas, 621 F2d
54, 56 (2d Cir.) cert. denied, 449 US 854 (1980).
120.

Effectively, Attachment A allowed for an overbroad authorization to search for evidence of the

commission of a crime as set forth in the warrant itself. And, as we have noted, because the affidavit was not
incorporated by reference into the warrant, in effect the warrant became a general warrant which allowed the
agents to rummage through the premises and search and seize whatever they wanted.
121.

In United States v. George, 975 F2d 72 (2d Cir., 1992), the Court found that a sufficiently

specific affidavit will not itself cure an overbroad warrant. Resort to an affidavit to remedy a warrants lack of
particularity is only available when it is incorporated by reference in the warrant itself and attached to it.
That is not the case here. Indeed, in George, supra, the Court found the recitation in the instant warrant that it
is issued upon the basis of an application and affidavit [ ] of Patrolman Brickell does not direct the executing
officers to refer to the affidavit for guidance concerning the scope of the search and hence does not amount to

incorporation by reference. (at 76).


122.

The Court also noted that the failure to describe items to be seized with a specific degree of

particularity as the circumstances allow offends the Fourth Amendment because there is no assurance that
the permitted invasion of a suspects privacy and property are no more than absolutely necessary. (at 76)
Coolidge v. New Hampshire, supra; United States v. Marti, 421 F2d 1263, 1268 (2d Cir., 1970).
123.

Here, the breadth of the search was not limited in any way. Application B, at the very least,

permitted a search for virtually everything in Mr. Thomass e-mail account. Allowing the agents to search for
all of the items set forth therein was improper and overbroad.
124.

In this case, consistent with United States v. George, 975 F2d 72, 76 (2d Cir., 1992) the

reference to evidence of a crime without any particularity as to what could be seized did not provide readily
ascertainable guidelines for the executing officers as to what items to seize. There, the Court held that an
authorization to search for evidence of a crime in a manner similar to the circumstances herein was too broad
and to constituted a general warrant.
125.

Instead of identifying what particular issues of a crime, the search warrant improvidently

authorized the search for any evidence fruits and instrumentalities of wire fraud and conspiracy and attempt to
commit wire fraud, in violation of Title 18 USC 1343 and 1349. That type of language has been
condemned by the Second Circuit Court of Appeals. People v. George, supra.
126.

In United States v. Rosa, 626 F3d 56, (2d Cir., 2010), the Court of Appeals found that a

search warrant which directed officers to seize virtually all documents within electronic devices did not provide
the police officers with guidance as to the type of evidence which could be sought. There, the Court found that
the warrant was overbroad and did not describe with particularity the items to be seized. As we have set forth
above, the same is true here. That is because the search warrant itself was overbroad and provided the officers
with no judicial limit on the scope of their search. (United States v. Rosa, supra, citing United States v. Liu,
239 F3d 138, 140 (2d Cir., 2000)). The Court also found that a search warrant must always be sufficiently
specific to permit the rational exercise of judgment by the executing officers in selecting what items to seize.
Here, because the search warrant application was not incorporated or attached to the warrant, the search
warrant may not be saved, and, in any event, the warrant failed for lack of particularity. Groh v. Ramirez, 540

US 551 (2004).
127.

As we have indicated, the Fourth Amendment prohibits unreasonable searches and seizures

and provides that a warrant must particularly describe the place to be searched and the person and things to be
seized. That requirement is meant to prevent the issuance of general search warrants which authorize the
general exploratory rummaging of a persons belongings. United States v. Yusuf, 461 F3d 374, 393 (3rd Cir,
2006). Thus, the need for particularity makes general searches impossible and otherwise helps to prevent the
seizure of one thing under a warrant describing another. As to what is to be taken, nothing is to be left to the
discretion of the officer executing the warrant. United States v. Christine, 687 F2d 749, 752-53 (3d Cir.,
1982); Marron v. United States, 275 Us 192, 196 (1927).
128.

In order to determine if a warrant is general, the court must focus on the level of direction

given to the executing officer and the level of discretion required of them in conducting a search. United States
v. Leveto, 540 F3d 2000, 2011 (3d Cir., 2008). And, as we have set forth above, the Second Circuit has made
clear that simple reference to a statute in order to determine what items may be seized is inappropriate and the
evidence must be suppressed as well because the warrant must be controverted. United States v. Leveto, 540
F3d 2000 (3d Cir., 2008). An officer may not have unbridled discretion to conduct an exploratory rummaging
through a defendants papers or computers in order to search for criminal evidence.

Thus, the Fourth

Amendment requires the warrant to describe items to be seized in a particular way so that the officer
conducting the search can identify the documents with a reasonable effort. Here, the warrant was general
because the authority to seize the documents and to search computers and the like was overbroad and did not
provide the agents with a direction as to what they may seize. Marcus v. Search warrants, 367 US 717;
Stanford v. Texas, 379 US 476; United States v. Giresi, 488 F.Supp 445 (Dist. NJ, 1980) affirmed 642 F2d 444
(3d Cir., 1981).
129.

In Massachusetts v. Sheppard, 468 US 981, 988 n.5, the Court found that the Fourth

Amendment by its terms required particularity in the warrant not in the supporting documents. Here, however,
even the supporting documents did not try to limit the type of items which were seized in the instant case. The
Fourth Amendment requires more in that a warrant must particularly describe the things to be seized, not
generally just papers and computers. The judicial officer has no discretion in that regard. The presence of a

search warrant which is well defined and states with particularity the items to be seized serves a high function.
McDonald v. United States, 335 US 451, 455.
130.

It has also been held that particularity can only be judged from the contents of the warrant

alone. Doe v. Groody, 361 F3d, 232, 239 (3d Cir., 2004). There, resort to the supporting affidavit was held to
be inappropriate because, as here, the affidavit was not expressly incorporated by reference into the warrant.
Bartholomew v. Commonwealth of Pennsylvania, 221 F3d 425, 428 (3d Cir., 2000). Attachment A, by not
being incorporated into the warrant, provided no guidance.
131.

In United States v. Wecht, 619 F.Supp. 2d 213 (WDPa, 2009) the application for the search

warrant authorized the seizure of a box of contents containing private autopsy files. In determining the
sufficiency of the description, the Court found that the description failed to satisfy the Fourth Amendments
particularity requirement. This case requires no different result. United States v. Fuccillo, 808 F2d 173 (1st
Cir., 1987). As well, in this case there seems to have been no attempt by the executing officers or the issuing
court to clarify the description of items to be seized. The admission of this information resulted in a warrant
whose description was too vague to meaningfully guide the officers search. United States v. Wecht, supra at
231.
132.

In this case, the investigator asked for and received permission to search for virtually

everything in Mr. Thomass e-mails without limitations. As the Third Circuit has held, society will not sanction
the use of general warrant-abhorrence for which gave birth to the Fourth Amendment is intolerable by any
measure. No criminal case exists even suggesting the content. United States v. Christine, supra at 758.
133.

The search of the e-mails fails from a lack of particularity. In this case, there were virtually no

limits as to what could be viewed. Computers are unique devices as to their capacity to store an immense
amount of data. United States v. Wecht, supra. As well, as we have indicated, the common tendency is for the
individual using the computer to intermingle personal information with work-related information. United States
v. Riccardi, 405 F3d 852, 862 (2d Cir., 2005). Because there was no specificity in the warrant itself as to what
the agents were to look for and seize specifically and to where they could look, the search warrant fails relative
to the computers. The warrant was required to state with particularity what documents the warrant authorized
the investigators to seize. United States v. Kow, 58 F3d 423, 427 9th Cir., 1995).

134.

We do ask the government to provide to the defense a full and entire inventory of every item

seized and taken from e-mails. We have not been provided with an inventory of items which were seized. We
therefore request a hearing as to the appropriate execution of the warrant and request not only suppressions of
particular items but suppression of everything seized because the warrant execution amounted to nothing less
than mere rummaging. Counsel reserves his right to move to argue that items seized as a result of the searches
were overbroad.
135.

The defendant has standing within which to move to suppress the evidence because the e-mail

account was his and he had a reasonable expectation of privacy therein. If the court wishes an affidavit of
standing to be provided to the Court we will do so. In a recent decision issued by the United States Court of
Appeals for the Second Circuit, that court confirmed defendants position. In United States v. Galpin, 720 F3d
436 (2d Cir., 2013) the defendant appealed from the denial of a motion to controvert a search warrant and
suppress physical evidence seized as a result of a search warrant which had been issued by a New York State
judge. In that case, the warrant was issued by a Town of Owego justice for the search of the defendants
residence, vehicle and person for property believed to contain evidence that will constitute, substantiate or
support violations of NYS Corrections Law, 168-f (4), NYS Penal Law and/or Federal Statutes. (Warrant,
July 6, 2009).
136.

Ultimately, the District Court found that there was probable cause to believe that the defendant

was grooming or luring minor males for inappropriate sexual conduct or that he had engaged in unlawful
sexual conduct with a minor, based upon the warrant affidavits proffers concerning his criminal history,
surveillance and other information.
137.

An expert called by the government explained that in order to conduct an analysis of the

defendants computer and other devices, she made images and duplicates of the hard drive. The files were then
opened and examined individually. The court wrote that Pollo testified that, while the following name
signifies the file type, the name may bear no relationship to the files content; therefore, the only way to
determine the content is to open the file.
138.

Consequently, the District Court issued a written decision which denied the defendants

suppression motions finding that the government had probable cause to search the defendants computer for

various images and that discovery was inadvertent in that the witness had to open every file in order to
determine whether they fell within the scope of the warrant.

Finally, the District Court found that the

incriminating nature of the evidence was readily apparent by simply looking at the picture and drawing
logical inferences concerning the depictions therein.
139.

After reiterating that the Fourth Amendment to the Constitution of the United States

provides that the right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things
to be seized. (U.S. Const. amed. IV, the court went on to discuss the fact that the chief evil intended to be
eliminated is providing officers unbridled discretion to rummage at will among a persons private effects
which violates Constitutional standards.

Consequently, the Court found that to prevent such general,

exploratory rummaging of a persons belongings and the attendant privacy violations, Coolidge v. New
Hampshire, 403 US 443, 467 (1971), the Fourth Amendment provides that a warrant may not be issued unless
probable cause is properly established and the scope of the authorized search is set out with particularity.
(Kentucky v. King, 563 U.S. 452 (2011)).
140.

The court further explained that prior precedent required that a warrant must identify a specific

offense for which the police have established probable cause (United States v. Bianco, 998 F. 2d 1112, 1116
(2d Cir., 1993) (particular description); United States v. George, 975 F 2d 72, 76 (2d Cir., 1992); Second, the
warrant must describe the place to be searched (United States v. Voustianiouk, 684 F3d 206, 211 (2d Cir.,
2012); and, finally, the warrant must specify the items to be seized by their relation to designated crimes.
United States v. Williams, 592 F3d 511, 519 (4th Cir., 2010); United States v. Buck, 813 F2d 588, 590-92 (2d
Cir., 1987) (warrant authorizes seizure of papers, things or property relating to the previously described crime
fail the particularization requirement because it only described the crimes and gave no limitation on the kind of
evidence sought). Ultimately, the court noted that [A]n otherwise unobjectionable description of the objects
to be seized is defective if it is broader than can be justified by the probable cause upon which the warrant is
based. 2 W. LaFave, Search and Seizure, 4.6(a)(Fifth Edition, 2012).
141.

Significantly, the court ultimately found:

Where, as here, the property to be searched is a computer hard drive, the


particularity requirement assumes even greater importance. As numerous
courts and commentators have observed, advances in technology and the
centrality of computers in the lives of average people have rendered the
computer hard drive akin to a residence in terms of the scope and quantity of
private information it may contain. See United States v. Payton, 573 F3d 859,
861-62 (9th Cir., 2009) (there is no question that computers are capable of
storing immense amounts of information and often contain a great deal of
private information. Searches of computers therefore often involve a degree of
intrusiveness much greater in quantity, if not different in kind, from the
searches of other containers.); United States v. Otero, 563 F3d 1127, 1132 (2d
Cir., 2009). (Other citations omitted).
142.

As a consequence, the Court found that the potential for privacy violations on occasion by an

unbridled, exploratory search of a hard drive is enormous. This threat is compounded by the nature of the
digital storage. Where a warrant authorizes the search of a residence, the physical dimensions of the evidence
sought will naturally impose limitations on where an officer may pry: an officer cannot properly look for a
stolen flat-screen television by rummaging through the suspects medicine cabinet nor search for false tax
documents by viewing the suspects home video collection.
143. The court thus found that this threat demands a heightened sensitivity to the particularity
requirement in the context of digital searches.
144. The Second Circuit, therefore, found that the search warrant was itself facially overbroad and
violated the Fourth Amendment. The question for the court, therefore, was whether information contained in
the warrant was severable.
145.

The court found that in order to determine the admissibility of evidence, a court must also

decide whether the valid portions make up only an insignificant or tangential part of the warrant. United
States v. George, supra, at 80.

The court also found that severance may be inappropriate where the

sufficiently particularized portion is only a relatively insignificant part of a sweeping search; United States v.
Spilotro, 800 F2d 959, 967 (9th Cir., 1986), or where the warrant is generally invalid but as to some tangential
item meets the requirement of probable cause. United States v. Freeman, 685 F2d 942, 952 (5th Cir., 1982);
See also United States v. Kow, 58 F3d 423, 428 (9th Cir., 1995) (severance inapplicable where the
constitutionally compliant part is a relatively insignificant part of an otherwise valid search). Significantly,
the court found that the analysis should not simply be a technical exercise of counting words and phrases but,

rather, a holistic test that examines the qualitative as well as the quantitative aspects of a valid portion of the
warrant relative to the invalid portions. United States v. Sells, 463 F3d 1148 (10th Cir., 2006).
146. As we have set forth in our initial motions, the warrant, together with the authorization to search
was clearly overbroad. We continue to ask the Court to conduct a hearing as to those issues raised previously.
United States v. Cheruvu, 14-CR-000120 (WMS) (pending motion for reconsideration (Attachment B).
147.

This matter cannot be determined by the Court without a comprehensive hearing as to all of

the items which were seized and how they relate to what we had previously characterized as an overbroad
search warrant. Consequently, counsel continues to maintain that the Court grant the motion and consider the
information now provided as well as the most recent precedent from the Second Circuit Court of Appeals.
148.

We have not attempted by this motion to include all of the information and items which we

believe were improperly seized. We believe that that may be considered by the Court during the course of the
hearing. However, if the Court wishes us to compartmentalize and describe in more detail all of the items
which were seized of which we have knowledge, we will do so based upon the request of the Court.
149. Most recently, in re Search of Cell Phones, 2014 WL 7793690 (2014, District Court, Kansas), the
court in a comprehensive decision spelled out that search warrants cannot now be issued for electronic devices
without a proper protocol being set out in the application for the search warrant. That is because, as the court
found, too much information is stored in the computers and a general search of computers or any other
electronic devices would be overbroad. In this case, the search warrant, in essence, permitted the full search of
all e-mails without any limitations as to what information they may search for or what protocols would be used
in order to limit the searches. Simply put, the searches were overbroad.
13. MOTION TO SUPPRESS EVIDENCE SEIZED
FROM DEFENDANTS BUSINESS LOCATIONS
150. On February 10, 2015 United States Magistrate Judge William M. Skretny issued an ex parte
temporary restraining order with an asset freeze, appointment of receiver and other equitable relief. As part of
the temporary restraining order Judge Skretny ordered that the Federal Trade Commission would have access,
under the order, to all of the business premises including named properties in the City of Buffalo and
Cheektowaga, New York.
151. Upon information and belief, FTC, together with the appointed receiver entered into the premises

leased by the Company which is named as the Company in the indictment. The temporary restraining order
only permitted FTC to involve the assistance of law enforcement officers to the extent that they may effect
service, to implement peacefully the provisions of this Order and to keep the peace. Specifically, Judge
Skretny did not authorize FTC to take any evidence located and turn it over to any other law enforcement
agencies including the United States Attorneys Office for the Western District of New York. Indeed, the Order
indicated that the only individuals who would otherwise have access to the items seized were the defendants
named in the temporary restraining order. Travell Thomas and Maurice Sessum named in the indictment.
152. In this case, counsel believes that the Federal Trade Commission took the documentation set forth
herein together with other items of evidence and gave them to law enforcement. We believe that the actions by
the Federal Trade Commission were the direct result of the instant investigation and indictment.
153. Because of the Federal Trade Commissions misuse of the documents without permission from
Judge Skretny to turn the documents or other evidence over to any law enforcement agency, the Federal Trade
Commission abused the temporary restraining order and the authority granted to them by the District Court for
the Western District of New York. As a consequence, all of the evidence seized and provided to any law
enforcement agents, investigators or attorneys must be suppressed.
154. Your deponent asks that this Court conduct a hearing to determine the propriety of the Federal
Trade Commission in providing the evidence set forth above which eventually wound up in the hands of the
United States Attorneys Office for the Western District of New York. As well, counsel respectfully requests
that this Court conduct a taint hearing to determine what evidence the government was able to discover directly
as a result of the information provided to it by the Federal Trade Commission. Nardon v. United States, 308 US
338, 341 (1939) (when an illegal search has come to light the government has the ultimate burden of persuasion
to show that its evidence is untainted). See also United States v. Huss, 482 F2d 38 (2d Cir., 1973). (see also
United States v. Ghalani, 743 F.supp. 2d 242, 250 (SDNY, 2010)). (United States v. Ahmed, 94 F.supp. 3d 394
(EDNY, 2015).
14. INTENTION TO JOIN IN MOTIONS OF CO-DEFENDANTS

155.

Defendant TRAVELL THOMAS hereby proclaims her intention to join in the

motions of co-defendants insofar as they are relevant to her case and he has standing to do so.

15. LEAVE TO MAKE FURTHE MOTIONS


156.

Defendant reserves the right to make further motions as the factors and evidence

emerge through requested disclosure.


WHEREFORE, the defendant respectfully requests that the Court issue an ORDER granting
the foregoing requested relief.
DATED: Kenmore, New York,
July 15, 2016, 2016
/s/ Scott F. Riordan
SCOTT F. RIORDAN
Attorney for Defendant
3110 Delaware Avenue
Kenmore, New York 14217
(716) 362-0480