2019 12 10 DeCicco USA Response To Hyde

Case 1:17-cr-10092-NMG Document 381 Filed 12/10/19 Page 1 of 11
UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA )

) Crim. No. 17-10092-NMG
v. )
)
GARY P. DECICCO, )
)
Defendant. )
GOVERNMENT’S OPPOSITION TO DEFENDANT’S

MOTION FOR LEGAL FEES AND EXPENSES
Defendant has filed a motion for attorney’s fees and litigation expenses pursuant to the
so-called Hyde Amendment (Pub.L. No. 105-119, 111 Stat. 2440, 2519 (1997), reprinted in 18
U.S.C. § 3006A (statutory note)). See Dkt. No. 369. As discussed below, that motion should be
denied because it is untimely, the underlying motion lacks merit, and the motion has been filed in
an attempt to gain advantage in a pending case against Defendant. See United States v. DeCicco
and Avedisian, Crim. No. 18-10013-RGS.
I. THE MOTION IS UNTIMELY
As a threshold matter, Defendant’s motion should be denied as it was filed 17 months
late. Title 18, United States Code, Section 3006A, Note “Attorney Fees and Litigation Expenses
to Defense” provides in pertinent part,
Such awards shall be granted pursuant to the procedures and

limitations (but not the burden of proof) provided for an award
under section 2412 of title 28, United States Code.
The First Circuit and the majority of federal courts having considered the issue have held that
“this reference incorporates the ‘procedures and limitations’ contained in 28 U.S.C. § 2412(d).”
United States v. Knott, 256 F.3d 20, 27 (1st Cir. 2001); Masterson v. United States, 200
F.Supp.2d 94, 99 (D.R.I. 2002) (collecting cases); United States v. Sherburne, 249 F.3d 1121,
1129 (9th Cir. 2001); United States v. Aisenberg, 358 F.3d 1327, 1339 (11th Cir. 2004). Title
28, United States Code, Section 2412(d) provides in pertinent part,
A party seeking an award of fees and other expenses shall, within

thirty days of final judgment in the action, submit to the court
an application for fees and other expenses which shows that the
party is a prevailing party and is eligible to receive an award under
this subsection, and the amount sought, including an itemized
statement from any attorney or expert witness representing or
appearing in behalf of the party stating the actual time expended
and the rate at which fees and other expenses were computed.
(Emphasis added).
Final judgment was entered in this matter approximately seventeen months ago, on June
13, 2018. See Judgment of Acquittal, Dkt. No. 360, attached hereto as Exhibit A. Failure to file
a Hyde Amendment application within thirty days of final judgment bars an award under the
Hyde Amendment. See, e.g., Masterson, 200 F.Supp.2d at 101; United States v. Ranger Elec.
Communications, Inc., 210 F.3d 627, 632-33 (6th Cir. 2000); United States v. Convertino, 2008
WL 2008613, *2 (E.D. Mi. 2008); United States v. Brattin, 2017 WL 1246336, *2 (D. Nev.
2017); Boone v. United States Attorney, 2006 WL 1075010 (W.D. Va. Apr. 21, 2006); United
States v, Lange, 2005 WL 8160512, *2 (N.D. Fl. Oct. 14, 2005). Cf. Scarborough v. Principi,
124 S.Ct. 1856, 1861, 1869 n. 7 (2004) (timely filed EAJA attorney’s fees application could be
amended by “relation back” to include omitted allegation so long as government would not be
prejudiced). Thus, Defendant’s motion is time barred and should be dismissed as untimely. 1
1
In addition to the requirement that the party seeking an award of fees must file an
application for fees within thirty days of final judgment, the statute provides that an application
must “show that the party is a prevailing party and is eligible to receive an award” under Section
2412. 28 U.S.C. § 2412(d)(1)(B). Under Section 2142(d), a “party” means “an individual whose
net worth did not exceed $2,000,000 at the time the [] action was filed.” 28 U.S.C.
§ 2412(d)(2)(B). Courts typically require at least an affidavit of an applicant that his or her net
worth falls short of two million dollars. See United States v. Heavrin, 330 F.3d 723, 732 (6th
Cir. 2003) (“A movant’s bare assertion that his or her net worth falls short of two million dollars
will generally be insufficient to satisfy this burden. Rather, the movant should at least proffer an
2
II. THE MOTION LACKS MERIT
A. The Legal Standard
Even if the motion were timely filed, it fails as a matter of law. In affirming the
applicability of Section 2412 to the Hyde Amendment, the First Circuit noted that the burden of
proof for a Hyde Amendment claim sets a higher bar, requiring more than a finding that the
government’s position was “not substantially justified” or “without foundation.” Knott, 256 F.
3d at 27-28 (“Indeed, the legislative history of the Hyde Amendment shows that in drafting the
provision, Congress considered and rejected as too easily met both the ‘not substantially
justified’ standard of the EAJA and a standard (modeled after the Firearms Owners’ Protection
Act of 1986, see 18 U.S.C. § 924(d)(2)(B)) which would have awarded fees, inter alia, where the
United States’ position was ‘without foundation.’”) (internal citations omitted). The Hyde
Amendment places the burden of proof on the defendant “to demonstrate that the government’s
position was ‘vexatious, frivolous, or in bad faith.’” Knott, 256 F.3d at 28.
In order to constitute a “vexatious” prosecution, the criminal case must have been
“objectively deficient, in that it lacked either legal merit or factual foundation,” and the
government’s conduct, “when viewed objectively,” must have manifested “maliciousness or an
intent to harass or annoy.” Id. at 29 (requiring both a deficiency in the legal merits of the case
and a malicious intent to harass). Indeed, probable cause defeats vexatiousness. See United
States v. Monson, 636 F.3d 435, 439 (8th Cir. 2011).
affidavit showing that the statutory criteria has been met.”) (citations omitted). Defendant has
not even made a bare assertion that his net worth falls short of two million dollars, let alone filed
an affidavit attesting to such. It should be noted that prior counsel told the Court at a detention
hearing that Defendant owned a business valued at more than three million dollars. See Dkt. No.
18, Tr. March 22, 2017, at pp. 128-29.
3
Frivolousness requires the criminal case to be “groundless, with little prospect of
success.” United States v. Reyes-Romero, 364 F. Supp. 3d 494, 510 (W.D. Pa. 2019) (internal
citations and quotations omitted). “A frivolous position includes a position that is foreclosed by
binding precedent, obviously wrong, lacking a reasonable basis, or lacking a reasonable
expectation of attaining sufficient material evidence by the time of trial, but a position is not
frivolous merely because it lacks precedent.” Id. (citing United States v. Manzo, 712 F.3d 805,
810–811 (3d Cir. 2013)).
Finally, “bad faith” requires an “objective” finding that the government “affirmatively
operat[ed] with furtive design or ill will.” See Manzo, 712 F.3d at 811 (citing United States v.
Gilbert, 198 F.3d 1293, 1299 (11th Cir. 1999) and United States v. Shaygan, 652 F.3d 1297,
1313–14 (11th Cir. 2011)). “In determining whether a position is vexatious, frivolous or in bad
faith, courts ‘make only one finding, which should be based on the case as an inclusive whole. A
count-by-count analysis is inconsistent with this approach.’” Id. at 810 (citing United States v.
Heavrin, 330 F.3d 723, 730 (6th Cir.2003)).
B. Argument
1. The Case Against Defendant
Viewed objectively, the case against Defendant was strong. In his opening statement,
counsel for Defendant admitted that his client sent flowers to the victim with a threatening note
and subsequently employed an individual to deliver a vicious beating to the victim. See Tr. June
5, 2018 at p. 17. The beating was recorded on videotape. The victim suffered serious injuries.
The individual who conducted the beating admitted that he had received $1,000 to beat the
victim and there was direct evidence linking this individual to Defendant, including testimony
from the individual who negotiated directly with Defendant. Furthermore, Defendant’s
4
girlfriend admitted that Defendant instructed her to send the flowers with the threatening note to
the victim. This undisputed evidence overwhelmingly demonstrated that the government’s case
was not “objectively deficient, in that it lacked either legal merit or factual foundation,” and
“when viewed objectively” cannot be deemed to show that the prosecution was “malicious” or
simply “inten[ded] to harass or annoy.”
As the Court is aware, the key issue in the case was whether the motive underlying the
admitted criminal conduct of Defendant was to extort an interest for Defendant in the victim’s
luxury automobile business. Evidence of Defendant’s motive and intent was supported by
language in the note accompanying the flowers sent to the victim by Defendant, the testimony of
the victim, testimony from Defendant’s former business partner who toured the construction site
with Defendant, and testimony from John Lloyd, the architect who designed the victim’s
automobile showroom.
In this regard, the language of the note clearly supported the government’s theory that
Defendant was engaged in an economic extortion of the victim. The note read,
Congrats Gary – We all know who’s place that is. We

hope this cross will help you get rid of that MUSLIM
PRICK. From all RT. 1 Autodealers.
The plain language of this note dictated by Defendant is sufficient proof that Defendant believed
that he was entitled to an interest in the victim’s automobile dealership, and that Defendant was
obviously angry that the victim was not agreeable.
Additional proof of Defendant’s motive and intent came from the victim who testified
extensively that Defendant had told the victim that Defendant wanted to be a partner in the
victim’s automobile business. See Tr. June 5, 2018 at pp. 36, 55, 61, 75, 97, 241; Tr. June 6,
2018 at pp.16-17. Defendant’s assertion was illustrated through the testimony of Phillip Baldi,
5
Defendant’s partner in another business venture, who testified that Defendant brought him to the
victim’s car dealership when it was under construction at least twice and walked Baldi around
the site, displaying knowledge of the construction and materials being used. Notably, the victim
was not at the site when these tours occurred. See Tr. June 7, 2018 at pp. 18-19.
Finally, John Lloyd, the architect who designed the victim’s automobile showroom
testified that Defendant instructed Lloyd to designate one of the offices shown on the plans as
Defendant’s office.
This evidence strongly supported the government’s decision to pursue the prosecution of
Defendant. In fact, the government would have been remiss if it had not prosecuted Defendant.
2. Prior Litigation Regarding the Same Claims
Defendant’s quarrel with the prosecution revolves around the conduct of the underlying
investigation by the FBI agent who had the initial contacts with the victim, the credibility of the
victim, and delayed discovery by the government of alleged exculpatory evidence. To the extent
that those issues have previously been briefed and argued, the government will rely on its prior
submissions rather than regurgitating them herein. See United States’ Opposition To Motion To
Dismiss Indictment, Dkt. No. 309 filed on May 25, 2018 attached hereto as Ex. B and
incorporated by reference herein.
A hearing was held regarding Defendant’s allegations on May 30, 2018. After a lengthy
argument the Court found,
Nonetheless, the Government’s conduct is indicative of a lack of

diligence and competence, rather than bad faith. There is no
evidence that the Government’s conduct has been nefarious or
dishonorable. Accordingly, the Defendant’s motion to dismiss the
indictment, Docket 301, is denied.
With respect to the late production of evidence, the unavailability

of Defendant’s voicemails and the alleged misrepresentations to
6
the Magistrate Judge, there is no evidence that such actions were

deliberate.
The Court concludes that the Defendant has not been prejudiced by
the Government’s conduct, and by virtue of the continuance of the
trial till June 4th, defense counsel has been afforded additional time
to review the evidence and prepare his defense.
Tr. May 30, 2018 at p. 47.
The findings of the Court regarding Defendant’s allegations provide no basis for the
instant motion. Nothing that happened during the trial of this matter should change the Court’s
original determination.
3. Analysis
The nature of Defendant’s allegations simply provide no support for a Hyde Amendment
claim. Although there may have been errors and missteps in the prosecution of this matter which
caused the Court consternation, none were malicious or intentional. There has been no finding
of prosecutorial misconduct, nor should there be. The law is clear that a defendant is not entitled
to attorneys’ fees under the Hyde Amendment due to law enforcement misconduct; rather, the
focus is on the prosecutors and whether the prosecutors themselves engaged in vexatious
conduct. United States v. Mixon, 930 F.3d 1107, 1112 (9th Cir. 2019) (citing United States v.
Monson, 636 F.3d 435, 439 (8th Cir. 2011) (“the intent of the Hyde Amendment is to deter
prosecutorial misconduct, not prosecutorial mistake. Requiring proof of prosecutorial
misconduct thus means that a defendant seeking to prove entitlement to a Hyde Amendment
award faces a ‘daunting obstacle.’”) (citations omitted).
The fact that Defendant was acquitted does not mean that the prosecution was frivolous.
For Hyde Amendment purposes, the court must assess the basis for pursuing charges from the
perspective of the government at the time. United States v. Knott, 256 F.3d 20, 35 (1st Cir.
7
2001); see also United States v. Manfredi, No. CIV. S 06-416 FCD, 2008 WL 686859, at *8
(E.D. Cal. Mar. 11, 2008) (However, “[t]o say in hindsight that a case could not be proved
beyond a reasonable doubt is hardly the same as showing that the case was unfounded and
intended to harass.”). As discussed above, the government’s view of this case throughout was
that it was a strong case, and one that was deserving of federal prosecution.
Defendant’s allegations primarily surround the conduct of the investigation by the FBI
including contacts between an FBI agent and the victim prior to the assault in December 2014 as
well as the provision by the agent of a recording device to the victim. As discussed above, the
government will rely upon it prior submissions and arguments regarding the impact of these
allegations on the proceedings, but errors or missteps by investigators cannot provide the basis
for a Hyde Amendment claim.
To the extent that Defendant alleged delayed disclosure of evidence that he perceived as
exculpatory, Defendant was provided with that evidence prior to trial and obtained a continuance
of the trial to review those materials. Furthermore, there exists no evidence that the prosecutor
was aware of those materials prior to their disclosure. To the extent that the government may be
subject to criticism for its failure to obtain those materials earlier in the litigation, this failure was
not intentional and, therefore, cannot support a claim of vexatiousness.
Finally, Defendant’s subjective belief that he was prosecuted because he failed to
cooperate in another matter is immaterial. First, there was no objective evidence to support such
a claim. Second, there was adequate evidence to support the prosecution. Indeed, the fact that
the Court did not grant Defendant’s Rule 29 motions is evidence that the prosecution was not
frivolous. See United States v. Manchester Farming Partnership, 315 F.3d 1176, 1184 (9th Cir.
2003); accord United States v. Gugnani, 178 F.Supp.2d 538, 542-43 (D. Md.2002); United
8
States v. Pritt, 77 F.Supp.2d 743, 747 (S.D. W.Va.1999); United States v. Convertino, No. 06-
20173, 2008 WL 2008613, at *3 (E.D. Mich. May 8, 2008).
III. THE MOTION IS NOT MADE IN GOOD FAITH
As set forth above, the Court should deny Defendant’s motion not only because it is time
barred, but also because it is without merit. Additionally, the Court should be aware that the
government believes that the motion was not filed in good faith, but rather to gain strategic
advantage in another criminal case currently pending against Defendant. 2
As this Court is aware, during the pendency of this extortion case, Defendant and his
long-time girlfriend were indicted on charges of wire fraud, conspiracy, and money laundering.
See United States v. DeCicco and Avedisian, 18-cr-10013, Dkt. No. 3 (the “Fraud Case”). A
First Superseding Indictment was returned in January 2019, adding tax charges. See id., Dkt.
No. 99. AUSA Kristina E. Barclay, who is the target of Defendant’s claims in the instant case, is
one of the prosecutors assigned to the Fraud Case.
On July 2, 2018, shortly after Defendant’s acquittal, Defendant’s prior counsel met with
AUSA Barclay and stated, inter alia, that Defendant was considering filing complaints against
the FBI and IRS case agents with the Department of Justice’s Office of Professional
Responsibility (“OPR”). He further told AUSA Barclay that the government should dismiss the
Fraud Case. AUSA Barclay told Defendant’s counsel that it would be inappropriate to dismiss a
case to avoid an OPR complaint.
2
Consistent with the government’s belief of improper motive, despite the fact that the
memorandum of law in support of Defendant’s Hyde Amendment claim repeatedly referenced
the First Circuit’s Knott decision, Defendant failed to bring to the attention of the Court that the
EAJA statutory requirements (i.e., timing and net worth) operate to bar his claim.
9
On October 17, 2019, sixteen months after the verdict in this case, but less than a month
after the Fraud Case was referred to Judge Stearns by Magistrate Judge Dein for trial (United
States v. DeCicco, et al., 18-cr-10013, Dkt. No. 190 (Report and Order on Final Status
Conference, September 26, 2019)), an attorney retained by Defendant contacted the United
States Attorney’s Office, leaving a voicemail in which she expressed a desire to discuss a
“solution” to the Fraud Case, given the “briefing that’s coming” and “the allegations that are
going to be made against [AUSA Barclay] as well as the Office.” That attorney subsequently
spoke with undersigned counsel for the government several times by phone and email, detailing
the claims Defendant would make against AUSA Barclay and the FBI in a Hyde Amendment
motion and an OPR filing. The attorney indicated that Defendant would consider not filing such
claims if the office dismissed the pending Fraud Case. The government declined to dismiss the
Fraud Case, explaining that it would be unethical for the government to agree to dismiss the
Fraud Case in order to avoid an ethics complaint.
Thus, the filing of the instant motion results from Defendant’s failed efforts to use the
threat of making ethical complaints against AUSA Barclay and filing a Hyde Amendment claim
against the government. If there has been any unethical conduct in the case at bar, it has been the
conduct of Defendant’s attorneys in attempting to extort the government to dismiss the pending
charges against Defendant. If Defendant’s attorneys truly believed that AUSA Barclay had
engaged in unethical conduct, they have their own ethical obligations to report that misconduct.
See Massachusetts Rules of Professional Conduct 8.3(a). The fact that they have failed to make
such report and instead have opted to use the threat of doing so to gain a strategic advantage for
their client speaks volumes about the merits of their claim.
10
IV. CONCLUSION
For the reasons set forth above, Defendant’s motion should be denied.
Respectfully submitted,
ANDREW LELLING
United States Attorney
By: /s/ Fred M. Wyshak, Jr.

Fred M. Wyshak, Jr.
Assistant U.S. Attorney
CERTIFICATE OF SERVICE
I, Fred M. Wyshak, Jr., Assistant United States Attorney, do hereby certify that this
document, was filed on the above date through the ECF system which sends copies electronically
to the registered participants as identified on the Notice of Electronic Filing (NEF) and that paper
copies will be sent to those indicated as non-registered participants on this date.
/s/ Fred M. Wyshak, Jr.

FRED M. WYSHAK, JR.
11
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EXHIBIT A
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UNITED STATES OF AMERICA

CRIMINAL ACTION
NO. 17-10092-NMG
v.
GARY P. DeCICCO
JUDGMENT OF ACQUITTAL
The Defendant having been found not guilty at trial by jury, the Court orders entry of
judgment of acquittal. IT IS ORDERED that the Defendant is acquitted, discharged, and any
bond exonerated.
_/s/ Nathaniel M. Gorton

The Honorable Nathaniel M. Gorton
Judge, United States District Court
6/13/2018
Date
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UNITED STATES OF AMERICA )

)
v. ) CRIMINAL NO. 17-10092-NMG
)
GARY P. DECICCO, )
)
Defendant. )
UNITED STATES’ OPPOSITION TO

MOTION TO DISMISS INDICTMENT
The United States, through undersigned counsel, respectfully opposes the Motion of
Defendant Gary DeCicco to Dismiss Indictment for Government Misconduct [Docket No. 301]
(the Motion). As set forth below, the government had a typographical error in its attachments to
subpoenas to phone companies when it sought the cellular telephone records of the victim in this
case. That typo, and a mistake in producing text messages between an agent with the Federal
Bureau of Investigation (the FBI) and the victim in this case, have now morphed into accusations
of material misrepresentations, withholding discoverable information, and spoliation of
exculpatory evidence, none of which are grounded in fact, all of which are based on pure
speculation, and some of which are based on the word of a convicted fraudster who admittedly
arranged both the delivery of the threatening flowers to and the beating of the victim in this case.
The Motion should be denied because the government has produced all relevant and exculpatory
information within its possession, custody and control, and because the government did not
destroy or direct the destruction of any evidence in this case.

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I. Relevant Background
A. The August 4, 2014 Incident.
On August 4, 2014, the Defendant admittedly sent flowers and a crystal cross to Medi
Mirnasiri, the owner of Auto Excellence Group (AEG) with the following message:
Congrats Gary – We all know who’s place that is. We hope this cross
will help you get rid of that MUSLIM PRICK. From all RT. 1
Autodealers. 1
(Emphasis added). On the same date, Mirnasiri reported the incident to the Saugus Police
Department (the SPD), not the FBI. Mirnasiri also reported to the SPD that he received a
blocked harassing phone call on that date, and that $75 worth of pizza that he did not order had
been delivered to AEG. The Defendant’s business associate, Philip Baldi, has admitted that he
(with the Defendant’s approval) had the pizza delivered to Mirnasiri.
SPD investigated the incident, and received a physical description of the woman who had
ordered the flowers. Mirnasiri told SPD that the woman could have been Kimberly
DeBenedictis, one of the Defendant’s girlfriends. Mirnasiri reported that DeCicco had sold him
the land where AEG was located, although the land had actually been titled in the names of
Charles Lightbody and Pamela Avedisian. Mirnasiri further stated that DeCicco wanted to be a
1
The note dictated by the Defendant said nothing about his family, girlfriend, or any
other of the various purported motives the Defendant has floated in his multiple filings in this
case. In fact, the Defendant himself told Mirnasiri in the card delivered with the flowers that the
threat related to the ownership of AEG. To allege that the government pursued this case based
only on the word of Mirnasiri is patently false and ignores the most critical piece of evidence in
the government’s case: the Defendant’s own admission.
2
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partner in his business. 2
Due to the possible connection of the incident to individuals with known associations
with organized crime, SPD Detective Frank Morello got in touch with SPD Detective James
Donovan, who was a Task Force Officer (TFO) with the FBI. At some point, the referral made
its way to FBI Special Agent Jesse Chizmadia, who was also assigned to the FBI’s organized
crime squad, presumably because SA Chizmadia had some involvement in the investigation
which led to the indictment in United States v. DeNunzio, et al., 14-CR-10284, during which the
Defendant’s name had also surfaced. 3
B. Contact Between The FBI And Mirnasiri

Between August And December 2014.
By the end of August 2014, the FBI had the referral from SPD of the delivery of flowers
with a threatening note to AEG. Mirnasiri was not then a source for the FBI, he was one of
many purported crime victims whose complaints get forwarded to the FBI’s attention.
Moreover, Mirnasiri had not yet been assaulted. The fact that SA Chizmadia had contacts with
2
The SPD report reflects that the SPD asked Mirnasiri whether he had any prior
incidents of harassment that were similar to this one. The report further states “He told us that he
had one prior incident that involved a neighbor of his. That neighbor is now identified as Gary
DeCicco (**/**/58). He told us that he had contacted the FBI about the matter and it stopped
shortly thereafter.” The FBI has no record of Mirnasiri contacting the agency about DeCicco. It
does have a record that Mirnasiri provided information to the FBI in April 2008 regarding the
Nahant Knights of Columbus, which neighbors Mirnasiri’s property.
3
Contrary to the repeated accusations in the Memorandum in support of the Motion, the
fact that Mirnasiri reached out first by phone to SA Chizmadia on August 27, 2014 does not
mean the government has made any sort of misrepresentation about how this case made its way
to the FBI. The SPD report states the matter was referred to the FBI, and the government
produced an FBI Form 302 of an interview with SPD Detective Morello in which he stated that
he brought the matter to the attention of the FBI. Indeed, Mirnasiri could not have called SA
Chizmadia’s cellular telephone number unless someone from SPD or the FBI provided it to him
and thereby invited the call.
3
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Mirnasiri during that time period does not mean that the FBI was conducting a “stealth
investigation of [the Defendant] for months.” Memo, at 21. Nor does it mean that the
government has misrepresented anything to the Court. In fact, SA Chizmadia took the complaint
but was busy with other matters, he talked briefly on the phone several times and exchanged text
messages with Mirnasiri, who was eager to have his complaint investigated, but the government
anticipates that SA Chizmadia will testify that he did not fully debrief Mirnasiri until December
28, 2014.
C. The January 2015 Assault.
On January 11, 2015, James Lundrigan viciously assaulted Mirasiri, resulting in a broken
jaw. It is undisputed that Lundrigan committed the assault on behalf of the Defendant, in
exchange for $1,000. The assault was captured on videotape, and the SPD responded to AEG.
The next day, the FBI collected evidence from AEG, including the videotape. Ultimately, the
fingerprint and DNA evidence collected from AEG did not result in the identification of the
assailant.
The FBI eventually identified Lundrigan as the assailant, and he confessed to the assault
in November 2015. In January 2017, the FBI learned from David Witham, who had hired
Lundrigan, that the assault was arranged through Jeffrey Prime on behalf of Gary DeCicco. On
March 16, 2017, Kimberly DeBenedictis admitted that she sent the flowers for the Defendant on
August 4, 2014, and that the Defendant had dictated the threatening note.
D. The Government’s Efforts to Secure Mirnasiri’s Phone Records.
Having tied the two critical events in this attempted extortion case – the flower delivery
and the assault – definitively to the Defendant, investigators in early April 2017 subpoenaed
phone records for Mirnasiri in an effort to identify the source of the calls he reported to SPD in
4
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2014. Comcast responded that it had no records for the AEG landline number. See Exhibit 1
(USAO_DECICCO_00003418 through USAO_DECICCO_00003419). Unfortunately,
investigators made a typographic error on the subpoena attachment for T-Mobile records related
to Mirnasiri’s cellular telephone, and the company provided records indicating that, during the
relevant time period, the number was assigned to a different carrier. That carrier in turn
responded that, due to its retention policies, it did not have records dating back to 2014 and 2015
for the phone number. See Exhibit 2 (USAO_DECICCO_00002838 through
USAO_DECICCO_00002839). 4
During preparations for trial, Mirnasiri reported that he might still have a cellular
telephone that he used during the 2014-2015 time period, which he was not currently using. On
April 18, 2018, Mirnasiri provided his phone to the FBI, and the FBI extracted all data on the
phone. The phone call logs, SMS and MMS messages extracted did not predate July 2016.
However, having the phone in its possession, the government endeavored to review all extracted
data, and produced on a rolling basis anything that was potentially relevant or exculpatory.
On May 4, 2018, hours after defense counsel notified the government of the
typographical error as to Mirnasiri’s cellular telephone number, the government issued a trial
subpoena to T-Mobile for records relating to the correct telephone number. The government
4
The Bates Numbers on these records indicate that they were produced to the Defendant.
The suggestion that the government “resisted production of information as to what efforts were
made by law enforcement to identify the alleged callers” is untrue. After the government
explained that it had produced all of the subpoena responses it received regarding the phone
records, Judge Hennessy repeatedly asked defense counsel at the May 10, 2018 hearing on the
Defendant’s motion to compel discovery what exactly they wanted the government to produce
regarding its “efforts” to obtain phone records, and ultimately stated, “If there are 302s that were
prepared regarding the attempts to identify the source of the calls, I want those produced and
order those produced. I can’t draw the line. I can’t actually identify what it is that you’re
seeking beyond that . . .” See Docket No. 271, at 48. No such FBI Form 302s exist.
5
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expedited the request. On May 17, 2018 at 3:05 p.m., the government received records from T-
Mobile and by 5 p.m. delivered all of those records to defense counsel. See Exhibit 3 (Receipt
from Speedy Delivery). After sending the records, and around the same time that defense
counsel notified the government of the same (at 6:12 p.m. on May 17), investigators realized that
T-Mobile had sent incomplete records. At 9:17 a.m. on May 18, the government notified T-
Mobile that the response was missing records, and followed up on May 21. See Exhibit 4 (May
18-21, 2018 emails between Ibrahim Salah and T-Mobile). On May 22 at 10:03 a.m., T-Mobile
provided records for the entire responsive time period, including the records that were missing
from the first response, and stated “I APOLOGIZE FOR THE ERROR ON THE RECORDS
SENT PRIOR. I HAVE ATTACHED THE TIME FRAME MISSING TO THE END OF THE
RECORDS.” See Exhibit 5 (May 22, 2018 email from T-Mobile). At 10:31 a.m., less than 30
minutes after receipt, the government produced the records to defense counsel. See Exhibit 6
(May 22, 2018 email from Ibrahim Salah). 5
In addition, out of an abundance of caution, the government issued a trial subpoena to
Comcast for all records for the landline phone number for AEG, even though Comcast had
previously responded that it had no such records. After escalating the matter, Comcast located
some records for the time period, but not complete records. See Exhibit 7 (May 23, 2018 email
from Timothy Derr), and Exhibit 8 (Records from Comcast). The government provided these
records to the Defendant promptly upon receipt.
5
The government provided defense counsel with copies of Exhibits 4 and 5 via email
before 9:20 a.m. on May 24, 2018. Accordingly, the Defendant had this information when it
filed its Motion alleging that the government had deliberately withheld critical records.
6
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E. The Production of FBI Text Messages.
On May 8, 2018, the government voluntarily made a production pursuant to 18 U.S.C.
§ 3500, which included two spreadsheets of text messages with Mirnasiri, who is on the
government’s witness list. One spreadsheet reflected communications with SA Chizmadia and
the other reflected communications with SA Elio. It was not until the May 23, 2018 Final
Pretrial Conference that the government realized that text messages from 2014 between SA
Chizmadia and Mirnasiri had not been produced on May 8. Those text messages were provided
by the FBI on a different spreadsheet, because SA Chizmadia had switched from a BlackBerry
device to an Android device around the end of 2014 or beginning of 2015. Upon realizing its
error, the government produced the missing 2014 text messages the morning of May 24, 2018. 6
Also on May 24, 2018, while reviewing the text messages for SA Chizmadia provided by
the FBI, the government realized that the FBI technicians had not provided text messages after
2015 for SA Chizmadia. The government reached out to the FBI technicians, and in the
meantime culled and produced the text messages between SA Chizmadia and Mirnasiri that had
been captured in the extraction of Mirnasiri’s phone, and produced those records (along with
recent texts between SA Elio and Mirnasiri), pursuant to the government’s agreement to provide
early Jencks Act materials to the Defendant.
6
The accusation that the government intentionally withheld information that SA
Chizmadia and Mirnasiri had contact before they met on December 28, 2014 is false. The
government has never represented to the Court that there was no contact at all before December
28, 2014. Moreover, the government immediately upon receipt produced the phone records that
reflected the contact and revealed the inadvertent omission of the 2014 texts.
7
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II. ARGUMENT
The Defendant contends that the government has engaged in “outrageous government
conduct” in four ways: (1) by destroying exculpatory evidence; (2) by making material
representations in support of its motion to detain the Defendant; (3) by withholding exculpatory
evidence until the eve of trial; and (4) by deliberately failing to investigate facts. See
Memorandum of Defendant Gary DeCicco in Support of Motion to Dismiss Indictment for
Government Misconduct (Docket No. 302-1) (the Memo), at 31. The government, however, has
not engaged in outrageous conduct, and the Motion must therefore be denied.
As this Court recognized in United States v. George, 839 F.Supp.2d 430, 438 (D. Mass.
2012):
“In rare and extreme circumstances, a federal court has the

authority to dismiss criminal charges as a sanction for government
misconduct.” United States v. Guzman, 282 F.3d 56, 59 (1st Cir.
2002). That power must be used “sparingly,” however, and is
“reserved for only the most appalling and egregious situations.”
Id. (citing United States v. Santana, 6 F.3d 1, 10 (1st Cir. 1993)
(“Potential elixirs should not be casually dispensed.”)). A
defendant invoking an outrageousness defense therefore has a high
hurdle to surmount: indeed, although the First Circuit has
confirmed the theoretical viability of the defense, it has never
dismissed criminal charges on the basis of outrageous government
misconduct. United States v. Luisi, 482 F.3d 43, 59 (1st Cir. 2007)
(citing cases); Santana, 6 F.3d at 4 (“The banner of outrageous
misconduct is often raised but seldom saluted.”).
A defendant claiming government misconduct must demonstrate

that the government has engaged in conduct “so appalling and
egregious as to violate due process by ‘shocking … the universal
sense of justice.’” Luisi, 482 F.3d at 59 (quoting United States v.
Russell, 411 U.S. 423, 432, 93 S. Ct. 1637, 36 L.Ed.2d 366
(1973)).
The Defendant has not met and cannot meet this heavy burden. Indeed, despite his best
efforts, his attempt to show any intentional misconduct fails.
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A. The Government Did Not “Destroy Exculpatory Evidence.”
The centerpiece of the Defendant’s claim that the Court should dismiss the indictment is
his contention that the government engaged in “outrageous government conduct” by destroying
exculpatory evidence. Memo, at 31-32. Specifically, the Defendant claims that “the
government knowingly destroyed the voicemails that [the Defendant] left for Mirnasiri on
December 9, October 8, and October 9, 2014.” Memo at 32. The Defendant maintains that this
purported destruction of evidence warrants dismissal under United States v. Femia, 9 F.3d 990,
993 (1st Cir. 1993) because (1) its exculpatory value was evident before it was destroyed, (2) the
Defendant cannot obtain comparable evidence by other reasonably available means, and (3) law
enforcement acted in “bad faith.” Memo, at 32-33. However, the government never had and
therefore did not “destroy” these voicemails, and the Defendant has otherwise failed to satisfy
the Femia formulation.
First, the Defendant, as the person who left the voicemails, has been aware of their
purported exculpatory content from the beginning of this case. 7 The only source for the
proposition that these voicemails were in any way exculpatory is the Defendant himself. He has
not claimed what it is about the October 8 and 9 voicemails that was exculpatory, but as to the
December 9 voicemail, he contends that he “told Mirnasiri that he had heard about Mirnasiri’s
backstabbing and gossip, and strongly and profanely advised Mirnasiri to stop talking about him
and his family, or else he would ‘beat the sh*t out of’ him.” Memo, at 27. But this account
does not make sense. As the Defendant recognizes, after leaving Mirnasiri a voicemail on
7
The Defendant failed in the extensive litigation over the government’s motion for
detention to allege that he had left an “exculpatory” voicemail for Mirnasiri. It is only now,
confident that no recording of this voicemail exists, that the Defendant has put forth the
purported substance of this voicemail.
9
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December 9, he spoke to Rick Scourtas, a friend of Mirnasiri, and, according to Scourtas, the
Defendant wanted Scourtas to deliver a message that Mirnasiri “gotta keep his mouth shut” and
stop talking badly about the Defendant. Memo at 13. Mirnasiri has confirmed that he had a
conversation with Scourtas in which Scourtas delivered, in substance, a message that the victim
was to stop talking and lying about the Defendant and should shut the hell up. Memo at 13.
There would have been no need to have Scourtas deliver any message at all if the Defendant had
already done it, far more effectively and frighteningly, via voicemail. Indeed, the Defendant is a
very intelligent man, and what strains credulity is that he would have left a voicemail message
containing an overt threat to assault the victim. What makes far more sense is that the Defendant
left a message for Mirnasiri to call him; Mirnasiri called back after speaking to Scourtas and left
a message; and the Defendant did not call Mirnasiri again because Scourtas had already spoken
to Mirnasiri.
Moreover, the fact that the Defendant may have had more than one reason for having
Mirnasiri viciously assaulted is simply not, as the Defendant appears to assume, fatal to the
government’s case. The government has requested that the Court give the following so-called
“mixed-motive” jury instruction:
The government also need not prove that the defendant’s actions
were solely motivated by an intent to obtain property from Medi
Mirnasiri. People rarely act for a single purpose, and the defendant
need not have used, or threatened to use, force, violence or fear,
including fear of economic loss or physical harm, solely in an
attempt to obtain property from Medi Mirnasiri. If you find
beyond a reasonable doubt that the defendant did attempt to obtain
property from Medi Mirnasiri, then it makes no difference that the
defendant may also have had another motive for the use, or
threatened use, of force, violence or fear, including fear of
economic loss or physical harm.
10
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United States’ Proposed Jury Instructions (Docket No. 235), at 25-26. So even if the Defendant
was angry with the victim for some other reason as well, as long as the jury finds that at least one
of the reasons for the threat and assault was the Defendant’s desire to have a piece of the victim’s
business, the Defendant has violated the Hobbs Act. See, e.g., United States v. Donna, 366 Fed.
App’x 441, 449 (2010) (3d Cir. 2010) (upholding dual motive jury instruction in extortion case);
see also United States v. Woodward, 149 F.3d 46, 70 (1st Cir. 1998) (“A defendant may be
prosecuted for deprivation of honest services if he has a dual intent, i.e., if he is found to have
intended both an lawful and an unlawful purpose to some degree. If the jury finds that the
unlawful purpose was present, it may convict the defendant.”); United States v. Coyne, 4 F.3d
100, 113 (2d Cir. 1993) (jury instruction that government must prove defendant accepted or
solicited thing of value “at least in part” for or because of his conduct as public official entirely
appropriate in light of defendant’s argument that he was motivated by friendship); United States
v. Vest, 639 F.Supp. 899, 904 (D. Mass. 1986) (“It is characteristic of human experience that
individuals usually—perhaps even always—act with mixed motives.”); Anderson v. United
States, 417 U.S. 211, 226 (1974) (“A single conspiracy may have several purposes, but if one of
them—whether primary or secondary—be the violation of a federal law, the conspiracy is
unlawful under federal law.”).
In addition, the Defendant’s claim that SA Chizmadia obtained copies of the voicemail
messages, Memo at 33, is simply wrong. The government does not now, and never did, have
recordings of these three voicemails. The Defendant thus has not “established possession,
custody, and control over the voicemails,” and the failure to produce them as recorded statements
of the Defendant, as Brady material, or “even in response to the defense’s direct requests,” see
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Memo at 33-34, does not, as the Defendant contends, establish bad faith under the third prong of
Femia.
Accordingly, the Defendant’s claim that the indictment should be dismissed because the
government destroyed evidence must be rejected.
B. The Government Did Not Make Material Misrepresentations

In Support of Its Motion To Detain The Defendant.
The government does not believe it has ever represented to the Court that the FBI had no
contact with Mirnasiri between August and December. Undersigned counsel has repeatedly
stated, believing it to be true, that the FBI did not sit down and interview Mirnasiri about the
threat until December 28, 2014. See Memo, at 20-22. Undersigned counsel was told that the
August to December gap between when the SPD referred the matter to the FBI and when SA
Chizmadia ultimately interviewed Mirnasiri was essentially a lengthy game of phone tag. While
undersigned counsel was not aware of the number of phone contacts between SA Chizmadia and
Mirnasiri during the August to December 2014 time period until May 2018, the contacts
themselves do not indicate that, in hindsight, there was any inadvertent material
misrepresentation to the Court.
By late August or early September, the FBI knew the gist of Mirnasiri’s complaint,
having received the police report from SPD. SA Chizmadia likely discussed the complaint
briefly during phone calls with Mirnasiri. Mirnasiri told SA Chizmadia that he was still in
contact with the Defendant, and SA Chizmadia told Mirnasiri to keep SA Chizmadia posted,
especially if Mirnasiri felt further threatened. But there was no active FBI investigation into the
attempted extortion before December 28, 2014, Mirnasiri did not record any conversations with
the Defendant, and SA Chizmadia neither heard nor arranged for the destruction of any
voicemails, let alone exculpatory voicemails. In fact, the FBI did not actively begin to
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investigate the flower incident until the Defendant followed up his threat with action, i.e., the
vicious beating on January 11, 2015.
The number of contacts between Mirnasiri and SA Chizmadia during the relevant time
period – 47 according to the Defendant – is misleading. Of the 33 phone contacts between SA
Chizmadia and Mirnasiro between August and December 2014, 29 were less than 3 minutes
long. 8 In fact, 13 were less than 1 minute in duration and 11 were less than 2 minutes in
duration, with the longest call being less than 7 minutes. SA Chizmadia could hardly have been
debriefing Mirnasiri during those calls, and the timing of many of the calls reflects a game of
phone tag. Further, a phone call that is noted as 1 minute on the phone records does not
necessarily mean that the phones even connected. For example, the 1-minute call from Mirnasiri
to the Defendant on December 9, 2014 at 1:19 p.m., which was included on the Defendant’s
chart (Memo, at 12), actually appears to have gone unanswered by the Defendant, because he
was on the other line with one of his girlfriends for 14 minutes starting at 1:12 p.m. See Exhibit
9 (highlighted phone records of Defendant and Mirnasiri).
The Defendant will have ample opportunity to cross-examine Mirnasiri at trial about his
contacts with the FBI during the August to December 2014 time period. Further, the Defendant
has indicated that he will call SA Chizmadia as a witness, and will likewise have an opportunity
to examine SA Chizmadia regarding his phone contacts with Mirnasiri before December 28,
2014. But the fact of the matter is, undersigned counsel did not knowingly make a representation
8
The phone records used for these calculations are billing records and not actual toll
records. Accordingly, it is the government’s understanding that any call that is even one second
more than one minute long will register on the billing records as a 2 minute call.
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to the Court about the contacts between the FBI and Mirnasiri between August and December
2014.
C. The Government Did Not Withhold Exculpatory Evidence

Until The Even Of Trial Or Deliberately Fail To Investigate Facts.
1. Mirnasiri’s Cellular Telephone Records.
As an initial matter, there is absolutely no evidence that the government intentionally
failed to secure Mirnasiri’s cellular telephone records. The fact that it did not send subpoenas
until April 2017 is a red herring; the government focused first on the threatening flowers and the
violent assault, and before the grand jury returned its indictment, the government had
subpoenaed all relevant phone records. The fact that the government mistakenly hit a dead end
with Mirnasiri’s cellular telephone phone records does not mean the government intentionally
failed to secure those records because it was hiding something – indeed, upon realizing the error,
the government immediately secured those records and produced them to the Defendant.
It is important to note that the Defendant’s complaint, at least with respect to Mirnasiri’s
phone records, is actually not one of non-disclosure, but rather one of delayed disclosure. A
prerequisite to obtaining relief in cases of delayed or non-disclosure of exculpatory evidence 9 is
a clear showing that the Defendant was prejudiced. Further, in cases of delayed disclosure of
material information, defense counsel have an obligation to request a continuance in order to
mitigate any prejudice. United States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993), cert.
denied, 512 U.S. 1223 (1994); United States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991).
The Defendant’s motion fails to allege any actual prejudice. In fact, the Defendant
describes the prejudice he would have suffered “were Mirnasiri’s phone records never
9
The government does not agree that the phone records are exculpatory.
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produced,” but in fact the government produced Mirnasiri’s cellular telephone records as soon as
they came into the government’s possession. Docket No. 302-1, at 35 (emphasis added). The
First Circuit held in Osorio that even when the prosecution is tardy in disclosing material
exculpatory evidence (which is not the case with respect to Mirnasiri’s phone records) the crucial
inquiry is whether the delay prevented defense counsel from employing the material to good
effect:
The court must determine first, whether the disclosed evidence was
material, and second, whether the defendant was denied the
opportunity to use the disclosed evidence effectively.
Osorio, 929 F.2d at 758 (citation omitted). See also Sepulveda, 15 F.3d at 1178; United States v.
Devin, 918 F.2d 280, 290 (1st Cir. 1990).
The Defendant had enough time with the phone records to prepare a Power Point
presentation for the Final Pretrial Conference on May 23, 2018, using details from those records
as its cornerstone. Moreover, the Court delayed the trial for one week, giving the Defendant
ample time to review and analyze the records. Based on fact that the government disclosed the
records when it received them, dismissal is not warranted.
2. SA Chizmadia’s 2014 Text Messages.
The Court did not order the government to provide information pursuant to 18 U.S.C.
§ 3500 (the Jencks Act) before trial in this case. Nevertheless, the government represented to
defense counsel in January 2018 that it would produce Jencks Act materials no later than 21 days
before trial. On May 8, 2018, the government produced two spreadsheets of text messages
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between SA Chizmadia and SA Elio with Mirnasiri (as part of its Jencks Act production), 10
inadvertently omitting the third spreadsheet from the production.
When defense counsel raised the issue of missing 2014 texts between Mirnasiri and SA
Chizmadia at the Final Pretrial Conference, the government was obviously surprised, and
represented that it would look into the issue forthwith. The government produced the missing
texts at 9:15 a.m. the next day. Had defense counsel raised the issue with the government on
May 18, 2018 (when they were apparently reviewing Mirnasiri’s records in preparation for the
surprise Power Point presentation regarding the missing texts), the government would have
produced the missing texts on May 18.
Again, at least with respect to the text messages, the Defendant’s complaint is not one of
non-disclosure, but rather one of delayed disclosure, and the Defendant has not demonstrated
that he suffered any prejudice as a result of the delayed disclosure. After having the missing text
messages for less than 9 hours, the defense was able to analyze them and incorporate them with
the phone records into a comprehensive 42-page memorandum in support of the Motion. The
Defendant has not and cannot demonstrate prejudice, especially given the one-week delay to the
start of trial.
D. Various Criticisms Of The Government’s Investigation.
The Defendant makes multiple and repeated allegations about the “unjustifiably reckless
and flawed investigation” into the Defendant’s attempted extortion of Mirnasiri. These
allegations are based on pure conjecture and supposition, and not grounded in the actual facts of
this case or the investigation. What is noticeably downplayed in the Defendant’s lengthy filing is
10
It is the government’s position that these text messages are in no way exculpatory.
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any mention of the key piece of evidence in this case, the Defendant’s own confession,
contained in the card delivered with the flowers, that the dispute with Mirnasiri was
related to ownership of AEG. While certainly the Defendant has a right to present testimony
regarding his allegations that the government’s investigation was flawed, none of his remaining
criticisms rises to the level of intentional government misconduct, and none of them merits
dismissal of the indictment.
Respectfully submitted,
ANDREW E. LELLING
By: /s/Kristina E. Barclay

KRISTINA E. BARCLAY
ROBERT E. RICHARDSON
Assistant U.S. Attorneys
U.S. Attorney’s Office
John J. Moakley U.S. Courthouse
1 Courthouse Way, Suite 9200
Boston, MA 02210
(617) 748-3100
Date: May 25, 2018
Certificate of Service
I hereby certify that this document was filed through the ECF system, and therefore it
was sent electronically to the registered participants as identified on the Notice of Electronic
Filing.
/s/Kristina E. Barclay
KRISTINA E. BARCLAY
Date: May 25, 2018
17
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EXHIBIT 1
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U.S. Department of Justice
Andrew E. Lelling
District of Massachusetts
Main Reception: (617) 748-3100 John Joseph Moakley United States Courthouse
1 Courthouse Way
Suite 9200
Boston, Massachusetts 02210
January 19, 2017
By Hand
Thomas C. Frongillo
Fish & Richardson
1 Marina Park Drive
Boston, MA 02210
Re: United States v. Gary P. DeCicco

Criminal No. 17-cr-10092-NMG
Dear Counsel:
The government responds to your discovery letter dated December 31, 2017, which I did
not receive until January 8, 2018, as follows:
1. The government will make appropriate disclosures under 18 U.S.C. § 3500 and Local
Rule 116.2(b)(2) no later than 21 days before trial.
2. The government will make appropriate disclosures under 18 U.S.C. § 3500 and Local
Rule 116.2(b)(2) no later than 21 days before trial.
3. Without waiving any objections to relevance or admissibility, the government

provides the following information pursuant to the Protective Order entered in this
case:
a. All telephone records for Kimberly DeBenedictis in the government’s

possession, custody and control were produced to defense counsel on May 26,
2017. See USA_DECICCO_00000502-567. Those records reflect no contact
between the cellular telephone or landline telephone associated with CW-1
and the cellular telephone number for Kimberly DeBenedictis between August
4, 2014 and April 14, 2015 (the last date for which we had phone records).
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b. According to information received from T-Mobile in June 2017, between May

29, 2012 and February 25, 2015, CW-1’s telephone number was owned by
Simple Mobile, a third-party whole seller that uses the T-Mobile network and
provides pre-paid cellular phone service. Call detail records for pre-paid
cellular telephone numbers are purged after 24 months. Accordingly, no call
detail records were produced in response to a grand jury subpoena served on
April 4, 2017 for such records relating to CW-1’s cellular telephone between
June 1, 2014 and March 1, 2015.
4. The government does not have such information in its possession, custody or control.
Enclosed are phone records which were either inadvertently omitted from or received
subsequent to previous productions. Please call the undersigned Assistant U.S. Attorney at 617-
748-3371 if you have any questions.
Very truly yours,
ANDREW E. LELLING
By: /s/Kristina E. Barclay

Kristina E. Barclay
Encl:
USAO_DECICCO_00002083 through USAO_DECICCO_00003072
Password for disc is:
Moakley123!
2
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EXHIBIT 3
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‐‐‐‐‐Original Message‐‐‐‐‐
From: customerservice@usacouriers.com <customerservice@usacouriers.com>
Sent: Friday, May 25, 2018 10:02 AM
To: Salah, Ibrahim (USAMA) <ISalah@usa.doj.gov>
Subject: YOUR DELIVERY STATUS

DELIVERY STATUS
USA COURIERS

e‐mail acknowledgement of your order submittal:

Account:USATTO Ticket:1792197 Date:05/17/18 Time:16:12

Client:US ATTORNEY'S OFFICE Caller:JULIA Ref:

U.S.ATTORNEY'S THOMAS C SIRONGILLO
1 COURTHOUSE WAY 9TH 1 MARINA PARK DR
99 99 99 99
Weight: 0.00 Pieces: 0
Pickup Time:16:12 Del. Time:17:00

Your delivery has been assigned to driver 87

1
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EXHIBIT 4
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From: Salah, Ibrahim (USAMA)

Sent: Monday, May 21, 2018 10:25 AM
To: 'LER2'
Cc: Barclay, Kristina (USAMA) (KBarclay@usa.doj.gov); Elio, Matthew D. (BS) (FBI); Lemanski,
Sandra (USAMA)
Subject: RE: Expedited Request - Tracking ID 1858920
Thank you very much. Just checking in on this.

From: LER2 <LER2@T‐Mobile.com>
Subject: RE: Expedited Request ‐ Tracking ID 1858920

I will have the specialist review.

Thanks,
Yesenia

From: Salah, Ibrahim (USAMA) [mailto:Ibrahim.Salah@usdoj.gov]
To: LER2 <LER2@T‐Mobile.com>
Cc: Barclay, Kristina (USAMA) <Kristina.Barclay@usdoj.gov>; Elio, Matthew D. (BS) (FBI) <mdelio@fbi.gov>; Loycano,
Stephanie A. (BS) (FBI) <saloycano@fbi.gov>

Thanks but we appear to be missing the records for the time period December 9, 2014‐January 8, 2015.

From: LER2 <LER2@T‐Mobile.com>

Good Morning Salah,

Your request was completed and sent via email to ibrahim.salah@usdoj.gov on 5/17/18. Your Tracking ID 1858920.

Thanks,

Yesenia Gonzalez
Contractor

Main: 973‐292‐8911 Email: Yesenia.Gonzalez85@T‐Mobile.com
This message contains information that is confidential or privileged. The information is intended for the use of the individual or entity named
above. Said information, when provided to a law enforcement agency to assist in its official duties may also be protected from disclosure by 5
U.S.C. 522, et seq (“the FOIA Act”) and 5 U.S.C. 552a, et seq. (“the Privacy Act”). If you are not the intended recipient, be aware that any disclosure,
copying, distribution or use of the contents of this information is prohibited. If you have received this electronic transmission in error, please notify
the sender and delete this message and any attachments.
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EXHIBIT 5
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From: LERinbound@T-Mobile.com
Sent: Tuesday, May 22, 2018 10:03 AM
To: Salah, Ibrahim (USAMA)
Subject: Tasks for Case Number: 1:17CR10092, T-Mobile US, Inc. Tracking ID: 1858920
Attachments: 7812444474.pdf; CDR_Mediations_7812444474_4893976.xls; RECEIPT 1858920.pdf;
1858920 Certification.pdf; SUB_Tibco_7812444474_4893977.xls;
eb919448-87a9-4055-9ef5-903bbfad3153.pdf; b7686421-b1d0-41d6-
a2cd-52658a5b9e77.pdf; Interpreting Call Detail Records - 170711.pdf; Interpreting
Subscriber Information.pdf; UTC Information Sheet 03302018.pdf
I APOLOGIZE FOR THE ERROR ON RECORDS SENT PRIOR. I HAVE ATTACHED THE TIME FRAME MISSING TO THE END OF
THE RECORDS.
THANK YOU
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EXHIBIT 6
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From: Salah, Ibrahim (USAMA)

Sent: Tuesday, May 22, 2018 10:30 AM
To: 'Caroline Simons'; 'frongillo@fr.com'; 'jperry@fr.com'; James Cipoletta
Cc: Barclay, Kristina (USAMA) (KBarclay@usa.doj.gov)
Subject: Supplemental discovery
Attachments: USAO_DECICCO_00025510.pdf
Good morning, attached please find the missing phone records associated to CW‐1 that T‐Mobile just provided to me.

Thank you,
Ibrahim Salah
Legal Administrative Specialist
U.S. Attorney's Office, D-MA
1 Courthouse Way, Suite 9200 | Boston, MA 02210
Email: ibrahim.salah@usdoj.gov
Phone: 617-748-3171
Fax: 617-748-3954

1
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EXHIBIT 9
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Statement for Account number Bil l close date
MEDI MIRNASIRI 236797294 Nov 08, 2014
Usage details
(781) 244-4474
Talk
The date and time corres(2onds to the local time where the mobile was located.
Date and time Number Description Type Min Amount
10/09/14, 8:20 AM 123 VM Retrieval (G) 3
10/09/14, 8:32 AM 123 VM Retrieval (G) 2
10/09/14, 8:36 AM (786) 326-2803 Incoming 6
10/09/14, 9:03 AM (781) 727-6036 Incoming 6
10/09/14, 9:12 AM (786) 326-2803 to MIAMI/FL 2
10/09/14, 10:15 AM (786) 326-2803 Incoming 2
10/09/14, 10:20 AM (786) 326-2803 to MIAMI/FL 4
10/09/14, 10:25 AM (786) 326-2803 Incoming 1
10/09/14, 10:27 AM (786) 326-2803 to MIAMI/FL 2
10/09/14, 10:30 AM (786) 326-2803 Incoming 4
10/09/14, 10:42 AM (786) 326-2803 to MIAMI/FL (A)
10/09/14, 10:42 AM (908) 725-2200 Incoming (A) 2
10/09/14, 10:44 AM (786) 326-2803 to MIAMI/FL
10/09/14, 10:50 AM (908) 725-2200 Incoming
10/09/14, 10:51 AM (786) 326-2803 to MIAMI/FL 5
10/09/14, 10:58 AM (508) 922-5367 to HOPKINTON/MA 2
10/09/14, 11 :00 AM (617) 970-3245 to EASTBOSTON/MA (F)
10/09/14, 11 :03 AM (617) 970-3245 Incoming (F)
10/09/14, 11:14AM (908) 725-2200 Incoming 2
10/09/14, 11 :23 AM (786) 326-2803 Incoming (A) 2
10/09/14, 11 :26 AM (508) 922-5367 to HOPKINTON/MA 2
10/09/14, 11 :30 AM (786) 326-2803 to MIAMI/FL 5
10/09/14, 11 :38 AM (617) 939-1462 to BOSTON/MA 3
10/09/14, 11 :42 AM (781) 558-2070 to SAUGUS/MA 2
10/09/14, 1:19 PM (781) 844-9253 to ARLINGTON/MA
10/09/14, 1:19 PM (617) 939-1462 to BOSTON/MA 2
10/09/14, 1 :27 PM (786) 326-2803 to MIAMI/FL 2
10/09/14, 2:30 PM (786) 326-2803 to MIAMI/FL 8
10/09/14, 3:42 PM (703) 996-1100 to DULLES/VA 2
10/09/14, 3:47 PM (786) 326-2803 to MIAMI/FL 6
10/09/14, 4:05 PM 123 VM Retrieval (G)
10/09/14, 4:32 PM (703) 996-1100 Incoming 3
10/09/14, 5:33 PM (617) 605-4500 to MALDEN/MA 7
10/09/14, 5:51 PM (617) 699-7798 to BOSTON/MA 4
10/09/14, 6:09 PM (781) 727-6036 to NEEDHAM/MA 3
10/09/14, 8:21 PM (781) 535-4126 to BRAINTREE/MA (F) 2
10/09/14, 8:23 PM (786) 326-2803 to MIAMI/FL 4
10/09/14, 8:28 PM (781) 727-6036 to NEEDHAM/MA 2
10/09/14, 8:46 PM (610) 509-9721 to ALLENTOWN/PA 7
10/09/14, 9:27 PM (617) 605-4500 Incoming 2
10/10/14, 8:16 AM (718) 844-3380 Incoming (F) 2
10/10/14, 8:19 AM (781) 760-2680 to V\1NCHESTER/MA 2
10/10/14, 8:42 AM (781) 760-2680 to V\1NCHESTER/MA 5
10/10/14, 8:47 AM (786) 326-2803 to MIAMI/FL
10/10/14, 8:50 AM 123 VM Retrieval (G)
10/10/14, 9:19 AM (718) 844-3380 Incoming (F)
10/10/14, 9:24 AM (786) 326-2803 to MIAMI/FL
10/10/14, 9:53 AM (617) 939-1462 Incoming
10/10/14, 10:52 AM 123 VM Retrieval (G) 3
10/10/14, 10:55 AM (773) 230-6900 to CHICAGO/IL 2
10/10/14, 10:59 AM (781) 385-9417 to HINGHAM/MA
10/10/14, 11:21 AM (561) 891-8554 Incoming 6
10/10/14, 1:15 PM (781) 760-2680 Incoming
10/10/14, 1:16 PM (508) 280-1312 to HYANNIS/MA
10/10/14, 1:20 PM (908) 725-2200 to SOMERVILLE/NJ 3
10/10/14, 1:25 PM (617) 538-6058 to WAL THAM/MA 3
10/10/14, 4:12 PM 123 VM Retrieval (G)
10/10/14, 4:12 PM (773) 230-6900 to CHICAGO/IL 2
10/10/14, 4:45 PM (773) 230-6900 Incoming 3
10/10/14, 4:56 PM (773) 230-6900 to CHICAGO/IL
10/10/14, 5:46 PM (781) 771-4456 to LYNN/MA (F) 4
10/10/14, 6:02 PM (786) 326-2803 to MIAMI/FL
10/10/14, 6:39 PM (617) 797-0200 Incoming 16
10/11/14, 9:17 AM (781) 760-2680 Incoming
10/11/14, 9:39 AM (617) 982-8080 to BOSTON/MA (F) 2
Page A1 of A43
Type: (A) Call Waiting (B) Call Forward (C) Conference Call (E) Data/Fax (F) Mobile2Mobile (G) Voicemail
(H) Free Calls (I) Intl Disc Call (J) Intl Disc Call to Mobile (K) WPS Call (M) AnyMobile (R) Roaming (T) T-Mobile Number
(V) myFaves Call (WJ Wi-Fi Call (X) T-Mobile @Home Call
USAO- DECICCO- 00025240

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~··
Verl:zR,.ff,wireless
Invoice NumbeIAccount Number Date Due Page
3157830162 481519252-00001 Past Due 42 of87
Detail for Gary Decicco: 781-844-9253

Voice, continued
Airtime Long Dist/
Date Time Number Rate Usage Type Origination Destination Min. Charges Other Chgs Total
10/09 9:21A 781-983-1254 Peak PlanAllow,CallWait Beverly MA Incoming CL 2
10/09 9:24A 617-571-8834 Peak PlanAllow Beverly MA Boston MA

10/09 9:28A 978-502-5594 Peak M2MAllow Peabody MA Incoming CL 2
10/09 9:31A 781-820-3207 Peak M2MAllow Beverly MA Incoming CL
10/09 9:33A 781-552-6023 Peak PlanAllow Topsfield MA Burlington MA
10/09 9:43A 508-783-4444 Peak M2MAllow Beverly MA Lawrence MA
10/09 9:44A 781-254-4673 Peak M2MAllow Peabody MA Lynn MA 2
10/09 9:47A 781-254-4673 Peak M2MAllow Topsfield MA Incoming CL 2
10/09 9:48A 781-552-6023 Peak PlanAllow,CallWait Beverly MA Incoming CL
10/09 9:49A 781-552-6023 Peak PlanAllow Topsfield MA Burlington MA 2
10/09 10:13A 781-983-5376 Peak M2MAllow Beverly MA Incoming CL
10/09 10:38A 978-387-4910 Peak PlanAllow Beverly MA Lawrence MA
10/09 10:39A 978-424-7357 Peak PlanAllow Beverly MA Fitchburg MA 2
10/09 10:41A 781-915-8127 Peak M2MAllow Beverly MA Dedham MA
10/09 10:44A 617-719-8253 Peak M2MAllow Beverly MA Boston MA
10/09 10:47A 781-983-5376 Peak M2MAllow Beverly MA Winchester MA
10/09 ll:06A 781-983-5376 Peak M2MAllow Topsfield MA Incoming CL
10/09 ll:45A 781-820-3207 Peak M2MAllow Beverly MA Incoming CL
10/09 12:00P 781-254-4673 Peak M2MAllow Beverly MA Lynn MA
10/09 12:05P 978-375-2120 Peak PlanAllow Beverly MA Incoming CL 2
10/09 12:47P 781-974-7114 Peak M2MAllow Beverly MA Incoming CL 2
10/09 12:49P 617-571-8834 Peak PlanAllow Beverly MA Boston MA 19
10/09 l:07P 978-502-5594 Peak M2MAllow,CallWait Salem MA Incoming CL
10/09 l:08P 781-333-1846 Peak M2MAllow Salem MA Malden MA
10/09 l:09P 978-376-5323 Peak PlanAllow,CallWait Salem MA Incoming CL
10/09 l:12P 781-333-1846 Peak M2MAllow Salem MA Malden MA 14
10/09 l:19P 781-244-4474 Peak PlanAllow,CallWait Peabody MA Incoming CL
10/09 l:26P 781-389-3418 Peak M2MAllow Middleton MA Winchester MA
10/09 2:28P 781-760-6535 Peak M2MAllow Middleton MA Winchester MA
10/09 2:36P 617-733-5587 Peak M2MAllow Beverly MA Boston MA 7
10/09 2:44P 617-571-8834 Peak PlanAllow Peabody MA Boston MA 16
10/09 2:51P 508-783-4444 Peak M2MAllow,CallWait Salem MA Incoming CL 2
10/09 3:00P 781-228-2218 Peak PlanAllow,CallWait Salem MA Incoming CL
10/09 3:0lP 781-228-2218 Peak PlanAllow Salem MA Braintree MA 2

10/09 3:02P 781-389-3418 Peak M2MAllow Lynn MA Winchester MA 2
10/09 3:05P 508-272-5287 Peak M2MAllow Lynn MA Easton MA 2
10/09 3:07P 954-336-2018 Peak PlanAllow Lynn MA Ftlauderdl FL 7
10/09 3:34P 781-248-5111 Peak M2MAllow Lynn MA Lynn MA
10/09 3:36P 781-389-3418 Peak M2MAllow Lynn MA Winchester MA 2
10/09 3:38P 781-974-7114 Peak M2MAllow Winthrop MA We1mouthMA
10/09 3:41P 617-780-9122 Peak PlanAllow Revere MA Boston MA 2
10/09 3:47P 781-248-5111 Peak M2MAllow Winthrop MA Lynn MA 27
10/09 4:15P 508-272-5287 Peak M2MAllow Malden MA Easton MA 2
USAO- DECICCO- 00000329

2019 12 10 DeCicco USA Response To Hyde

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Case 1:17-cr-10092-NMG Document 381 Filed 12/10/19 Page 1 of 11

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA )

GOVERNMENT’S OPPOSITION TO DEFENDANT’S

and Avedisian, Crim. No. 18-10013-RGS.

I. THE MOTION IS UNTIMELY

As a threshold matter, Defendant’s motion should be denied as it was filed 17 months

to Defense” provides in pertinent part,

Such awards shall be granted pursuant to the procedures and

28, United States Code, Section 2412(d) provides in pertinent part,

A party seeking an award of fees and other expenses shall, within

II. THE MOTION LACKS MERIT

A. The Legal Standard

government’s conduct, “when viewed objectively,” must have manifested “maliciousness or an

States v. Monson, 636 F.3d 435, 439 (8th Cir. 2011).

Frivolousness requires the criminal case to be “groundless, with little prospect of

binding precedent, obviously wrong, lacking a reasonable basis, or lacking a reasonable

810–811 (3d Cir. 2013)).

Heavrin, 330 F.3d 723, 730 (6th Cir.2003)).

1. The Case Against Defendant

simply “inten[ded] to harass or annoy.”

Congrats Gary – We all know who’s place that is. We

obviously angry that the victim was not agreeable.

2. Prior Litigation Regarding the Same Claims

incorporated by reference herein.

argument the Court found,

Nonetheless, the Government’s conduct is indicative of a lack of

With respect to the late production of evidence, the unavailability

the Magistrate Judge, there is no evidence that such actions were

Tr. May 30, 2018 at p. 47.

prosecutorial misconduct, not prosecutorial mistake. Requiring proof of prosecutorial

award faces a ‘daunting obstacle.’”) (citations omitted).

for a Hyde Amendment claim.

not intentional and, therefore, cannot support a claim of vexatiousness.

Finally, Defendant’s subjective belief that he was prosecuted because he failed to

20173, 2008 WL 2008613, at *3 (E.D. Mich. May 8, 2008).

III. THE MOTION IS NOT MADE IN GOOD FAITH

advantage in another criminal case currently pending against Defendant. 2

one of the prosecutors assigned to the Fraud Case.

case to avoid an OPR complaint.

Fraud Case in order to avoid an ethics complaint.

their client speaks volumes about the merits of their claim.

By: /s/ Fred M. Wyshak, Jr.

/s/ Fred M. Wyshak, Jr.

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA

_/s/ Nathaniel M. Gorton

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA )

UNITED STATES’ OPPOSITION TO

of material misrepresentations, withholding discoverable information, and spoliation of

destroy or direct the destruction of any evidence in this case.

A. The August 4, 2014 Incident.

(with the Defendant’s approval) had the pizza delivered to Mirnasiri.

partner in his business. 2

Defendant’s name had also surfaced. 3

B. Contact Between The FBI And Mirnasiri

C. The January 2015 Assault.

D. The Government’s Efforts to Secure Mirnasiri’s Phone Records.

(USAO_DECICCO_00003418 through USAO_DECICCO_00003419). Unfortunately,

for the phone number. See Exhibit 2 (USAO_DECICCO_00002838 through

(May 22, 2018 email from Ibrahim Salah). 5

In addition, out of an abundance of caution, the government issued a trial subpoena to