Beruflich Dokumente
Kultur Dokumente
Gary P. DeCicco,
Defendant.
The Government first brought unfounded charges against Mr. DeCicco, then engaged in
repeated discovery violations and repeated a troubling series of false statements to the Court, all
in a quest to convict Defendant Gary DeCicco of a federal offense he did not commit. The
investigation. After Mr. DeCicco refused, the Government came after him with the full force of
the U.S. Attorney’s Office and the FBI, causing Mr. DeCicco to suffer 15 months of pre-trial
detention, significant legal fees, loss of business income as well as the stress and anxiety that
Fortunately, the jury saw through the veneer of the Government’s case and acquitted Mr.
DeCicco in just one hour. However, that acquittal did not remedy all the harms Mr. DeCicco
endured. Mr. DeCicco’s father suffered a heart attack the day after his arrest and Mr. DeCicco
was unable to visit him in the hospital. Mr. DeCicco lost time with his children. In addition to
the legal fees he incurred, Mr. DeCicco also lost significant business opportunities. The Court
cannot give Mr. DeCicco back the 15 months he spent locked up awaiting trial or take back the
years of stress he continues to suffer, but it can award him the attorneys’ fees and expenses he
incurred in defending himself. This Court has already found the Government’s conduct
disconcerting. It should also find that the Government’s conduct was vexatious, frivolous and/or
in bad faith and find that the United States Attorney’s Office and the FBI are jointly and
severally liable for Mr. DeCicco’s attorneys’ fees and expenses in the amount of $3,041,989.98.
I. BACKGROUND
The FBI initially approached Mr. DeCicco on August 12, 2013, seeking his cooperation
in the high-profile casino investigation involving Charlie Lightbody and others. See Ex. A, 1
1
Exhibits to the Affidavit of Tracy A. Miner in Support of Gary DeCicco’s Motion for Legal Fees and Expenses.
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150:18-21, 151:18-20, 153:1-4. Mr. DeCicco answered the FBI’s questions at that interview but
did not enter into a cooperation agreement with the Government, stating he did not have the
information they sought. The FBI agent then indicated they would go after Mr. DeCicco.
The FBI kept its promise. The U.S. Attorney’s Office brought a criminal complaint
charging Mr. DeCicco with extortion in violation of 18 U.S.C. § 1951 on March 16, 2017. An
Indictment followed. Mr. DeCicco had sold his neighbor, Medi Mirnasiri, a parcel of land
located in Saugus, and helped Mr. Mirnasiri obtain the necessary permits to construct an
automobile dealership on the property. Ex. B, ¶¶ 5-6. On August 4, 2014, Mr. DeCicco
allegedly caused flowers, in a vase shaped like a cross, to be delivered to the dealership with a
threatening note. Id. at ¶ 10. The Government informed the Court that Mr. Mirnasiri also
reported receiving two threatening phone calls, one later the same day and a second two days
later on August 6. Id. at ¶¶ 10-11. The Government originally claimed (falsely) that Mr.
Mirnasiri did not report these threats to the FBI until December 28, 2014, shortly before he was
assaulted at his auto dealership on January 11, 2015. Id. at ¶¶ 13 n.2, 15. 2
In his affidavit in support of the criminal complaint, Special Agent Matthew Elio stated
that Mr. Mirnasiri was an FBI source from 2006 through 2011, and was reactivated again in July
2015. Id. at ¶ 5. Agent Elio specifically represented that Mr. Mirnasiri “has no criminal history”
and that he was “not aware of any information that would adversely affect the credibility of [Mr.
Mirnasiri’s] information.” Id. Notably, although the Government reviewed telephone records of
at least four individuals prior to filing the complaint, id. at ¶ 23, it either did not review records
of Mr. Mirnasiri’s personal or business phones to verify his claims that he had received
2
The Government reiterated much of the same information in another affidavit executed by IRS Special Agent
Sandra Lemanski in support of detention. See Ex. C, ¶¶ 8, 10-11, 22.
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threatening phone calls or reviewed them and ignored the evidence that contradicted their theory.
A. Mr. DeCicco is Detained Pending Trial After the Government Makes a Series
of Misrepresentations to the Court at Detention Hearings
Mr. DiCicco vigorously contested pre-trial detention after his arrest. However, given the
violent nature of the charges, the Court agreed with the Government’s position that detention
was warranted and Mr. DeCicco was ultimately detained for 15 months before he was acquitted.
The Court’s decision to detain Mr. DeCicco was based on a series of troubling
misrepresentations the Government made over the course of several detention hearings.
Mr. DeCicco maintained from the outset that his dispute with Mr. Mirnasiri was over
some comments Mr. Mirnasiri had made about Mr. DeCicco’s daughter. See, e.g., Ex. D,
115:18-20; Docket No. 70 at 2; Docket No. 84 at 1. 3 The Government alleged the dispute was
actually due to Mr. DeCicco’s alleged desire to obtain an interest in the auto dealership.
Government accordingly took pains to tie the assault to the August 4, 2014 flower delivery
purporting to congratulate Gary on the new dealership. In response to a question from the Court
about what Mr. Mirnasiri was doing between the flower delivery and the assault, the Government
told the Court, “He’s not talking to DeCicco.” Ex. E, 31:17-24. That statement was false. Mr.
Mirnasiri’s phone records later revealed he was regularly communicating with Mr. DeCicco
throughout the relevant time period and was keeping the FBI apprised of those communications.
Mr. DeCicco opposed detention, arguing that the Government’s factual basis for the case
was very weak at best. The defense argued it was “very surprising” there were no recordings of
Mr. DeCicco threatening Mr. Mirnasiri, who was a longtime FBI informant. See Ex. F, 60: 12-
25; Ex. E, 36:5-13; see also Docket No. 70 at 3; Docket No. 84 at 3. The Government
3
The Government confirmed Mr. DeCicco mentioned this dispute to one cooperating witness. See Ex. D, 16:17-25.
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maintained the lack of recordings did not undermine its case because the “FBI goes and talks to
[Mr. Mirnasiri] . . . I think it was December 28,” shortly before he was assaulted on January 11.
See Ex. F, 67:10-16. This was no idle remark; the Government repeatedly represented to the
Court that the FBI did not speak with Mr. Mirnasiri until December 28, 2014. See id. 73:17-
-74:15 (“I think he was interviewed December 28. The assault was January 11. So it was over
the holidays.”); Ex. E, 30:13-20 (“they ultimately get to talk to [Mr. Mirnasiri] on December
28”); Ex. E, 55:24-56:5 (“The point about the wire, Your Honor, we’ve been over this a number
of times before. Between the time when the FBI interviews [Mr. Mirnasiri] and the time when
he’s beaten, it’s 13 days, and that includes New Year’s and Christmas vacation. They simply
didn’t have a chance to pursue this investigation before Mr. DeCicco took matters again into his
own hands.”). It later became clear the FBI had been in communication with Mr. Mirnasiri as
early as August 27, 2014. Further, although the Government initially scoffed that it would be
“preposterous” to have Mr. Mirnasiri wear a wire after the assault, that claim too turned out to be
false. The Government later disclosed that the FBI had provided Mr. Mirnasiri with recording
equipment in February 2015, the month after the assault. See Ex. F, 67:21-25; Ex. E, 56:6-10.
The Government continued to credit Mr. Mirnasiri’s version of events during the
detention hearings, without evidence. The Government continued to rely on Mr. Mirnasiri’s
claim that he had received two threatening phone calls on August 4 and 6, 2014, shortly after the
flower delivery. See Ex. D, 96:2-18; 98:1-6. In fact, the Government made no effort to confirm
that those calls occurred, and phone records later demonstrated no such calls were made.
Mr. DeCicco vigorously disputed Mr. Mirnasiri’s reliability, despite SA Elio and SA
Lemanski’s attestations that they were “not aware of any information” that would adversely
impact Mr. Mirnasiri’s credibility. Ex. B, ¶ 5; Ex. C, ¶ 3. Among other concerns, Mr. DeCicco
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argued Mr. Mirnasiri, who was a long time FBI informant, had a “pattern of vindictively
death threats. 4 Docket No. 84 at 12-15. In response, the Government represented to the Court
that “it was the Saugus Police who referred the case to the FBI, not [Mr. Mirnasiri] . . . The FBI
subsequently reached out to [Mr. Mirnasiri] about the incident, not the other way around.”
Docket No. 87 at 16 (emphasis in original). The Government repeated this assertion at the next
hearing, telling the Court “I’d also point out, Your Honor that [Mr. Mirnasiri] did not proactively
report any of this to the FBI. The Saugus P.D. turned it over to the FBI, and the FBI approached
[Mr. Mirnasiri]. . . . [Mr. Mirnasiri] told this to the Saugus P.D., and they turned it over to the
FBI, and the FBI then went and talked to [Mr. Mirnasiri].” See Ex. G, 47:19-21, 48:1-3. This
claim too was false. Phone records later proved Mr. Mirnasiri first contacted the FBI, not the
other way around, long before the Saugus Police referred the matter.
The Court ordered Mr. DeCicco detained pending trial. See Ex. D, 132:24-25. The
Court noted “some weaknesses in the government’s case,” but nevertheless found the strength of
the evidence “marginal[ly]” supported detention. Id. at 136:5-8. Of course, at the time the Court
did not know that much of the Government’s “evidence” was false. As a result, Mr. DeCicco
4
For example, in 2010 Mr. Mirnasiri himself made an extortionate threat to an individual who had bounced a check.
Mr. Mirnasiri left his victim the following voicemail:
Larry, this is [Medi]. I had people in front of me so I couldn’t talk to you but let me tell you
something asshole. Not only kiss my ass you fucking piece of shit, but you can kiss good-bye to
River INADIBLE Cre-, Credit Union also, account and business as well. Obviously you don’t
know INAUDIBLE to me. Next time I see you face-to-face mother fucker, you’d better prepare
yourself cock sucker because I’m coming after you, mother fucker piece of shit. You think I’m
afraid of you, mother fucker. Obviously you don’t know me. I’m gonna cut you to pieces, you
cocksucker. If you got balls, tell me where you are and I’ll come right now and I’m gonna show
how deeply I’m gonna fucking stick my foot up in your fucking piece of shit ass, cocksucker. I’ve
got a score to settle with you, mother fucker, now.
Docket No. 90-3. Additionally, John Lloyd, the architect who designed Mr. Mirnasiri’s auto dealership, testified at
trial that he threatened to “cut my head off” over a disagreement about the building’s design. Ex. J, 172:21.
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Counsel for Mr. DeCicco sought the Court’s assistance in resolving several discovery
disputes that arose before trial. The defense identified a number of serious concerns regarding
First, defense counsel questioned why the Form 302 memorializing the December 28,
2014 interview of Mr. Mirnasiri was drafted years after that meeting, rather than within five days
as required by the FBI Manual of Administrative Operations and Procedures, Part 2, Section 10-
13.3, and why the 302 appeared to be missing a page. See Ex. H, 27:6-10; Ex O. The
Government acknowledged it had initially produced only a Draft 302, and only after realizing its
“inadvertent[ ]” error, produced the Final 302 on March 20, 2018. See Docket No. 171 at 13; Ex
O. There were critical differences between the Draft 302 and Final 302. Importantly, only the
Final 302, dated March 1, 2017, includes a statement by Mr. Mirnasiri attributing the assault to
Mr. DeCicco. Ex. H, 29:21-30:1. That statement was itself contradicted by a belatedly-
produced FBI Form 1057 Report, which indicated that shortly after the assault, Mr. Mirnasiri had
attributed the attack to a debt he owed Mr. DeCicco. See Docket No. 165 at 16; Ex. I. 5
Second, Mr. DeCicco argued the Government had never confirmed that Mr. Mirnasiri
actually received threatening phone calls on August 4 and 6, 2014, as he had reported to the
Saugus Police Department. 6 Although the Government conducted extensive phone analysis as
part of its investigation and obtained phone records of nearly every individual allegedly involved
in the assault on Mr. Mirnasiri before Mr. DeCicco was charged, see Ex. B, ¶ 23, the prosecutors
and FBI agents inexplicably failed to obtain the phone records of the most important individual
5
The FBI Form 1057 also turned out to be incorrect. At trial, Mr. Mirnasiri admitted he did not owe Mr. DeCicco
any money at the time of the assault. See Ex. J, 79:19-23.
6
Mr. Mirnasiri reported to the Saugus Police that at least the August 6 call was made to his cell phone. Ex. K.
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of all, Mr. Mirnasiri himself. The Government did not subpoena Mr. Mirnasiri’s cell phone
records until April 4, 2017, over two years after he was attacked and over two and a half years
after he purportedly received the threatening phone calls. 7 Even then, the Government made a
critical mistake, subpoenaing a number that was one digit off of Mr. Mirnasiri’s cell phone
number. T-Mobile responded that the number was assigned to another carrier, which did not
retain records longer than two years. See Docket No. 309 at 5; Ex. X. The Government should
have realized something was wrong at this point. The Government knew Mr. Mirnasiri’s carrier
was T-Mobile, and did not need a subpoena to get its own cooperator’s phone records.
Nevertheless, the Government claims it did not notice it subpoenaed records for the wrong phone
Third, Mr. DeCicco sought production of communications between Mr. DeCicco and Mr.
Mirnasiri, which would demonstrate the informant was not afraid of Mr. DeCicco during the
period of the alleged extortion and that the two were in fact in contact during the period between
the flower delivery and the assault. See Docket No. 165 at 28. Although Mr. Mirnasiri was a
longtime FBI informant and had met with the FBI in 2014, the Government said the month
before trial that it had just received Mr. Mirnasiri’s phone “a couple of weeks ago” and had been
Finally, believing he had been meeting with the FBI well in advance of December 28,
2014 and that the Government would have had ample opportunity to tape any purported threats
from Mr. DeCicco, the defense sought Mr. Mirnasiri’s communications with the FBI. Docket
No. 165. The Government told the Court it had “produced all communications with the agents.”
7
Additionally, although Mr. Mirnasiri was an FBI informant and was cooperating with the investigation since 2014,
the Government did not bother to image Mr. Mirnasiri’s phone until May of 2018.
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Ex. H, 19:22-23, 20:17-19. In fact, the Government had produced only text messages between
FBI agents and Mr. Mirnasiri that took place after the assault and omitted communications from
prior to the assault. When the defense noted this deficiency, the Government clarified it had
produced “written communications” such as text messages, but not the agent’s phone records.
Id. at 23:20-24:1. This too turned out to be a lie. There were numerous text messages between
Mr. Mirnasiri and the FBI prior to the assault that had not been produced.
The Government’s story quickly unraveled in the days leading up to the final pre-trial
conference. The week before the final pre-trial, on May 17, 2018, the Government finally
produced phone records from Mr. Mirnasiri’s cell phone, the same phone he had in 2014. Ex. L,
10:22-11:3; Ex. M. Once again the production was missing critical information. The
Government failed to produce records for a critical month, December 2014, until the day before
With Mr. Mirnasiri’s phone records finally in hand, Mr. DeCicco’s attorneys made an
astonishing discovery. Although the Government had repeatedly told the Court that the FBI did
not meet with Mr. Mirnasiri until December 28, 2014, that the FBI did not have the opportunity
to record Mr. DeCicco before the January 11, 2015 assault, and that Mr. DeCicco and Mr.
Mirnasiri were not in contact between the August 4 flower delivery and the January 11 assault,
those representations were simply false. Special Agent Jesse Chizmadia was in regular
communication with Mr. Mirnasiri before December 28, 2014, including on occasions when Mr.
DeCicco and Mr. Mirnasiri exchanged phone calls. There were at least 45 communications
between the two going as far back as August 27, 2014. Ex. L, 14:2-8, 21:5-6; Ex. P. For
example, the defense was focused on December 9, 2014 as a key date when Mr. DeCicco and
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Chizmadia communicated with Mr. Mirnasiri multiple times on December 9, 2014. Ex. L,
12:14-22; Ex. P. That pattern, in which Mr. Mirnasiri is in contact with SA Chizmadia at or
around the same time he was in touch with Mr. DeCicco, repeats itself on multiple occasions in
September, October, and December 2014. Ex. L, 16:16-18:4; Ex. P. Although SA Chizmadia
was a member of the prosecution team, the Government supposedly was surprised by these
revelations. Ex. L, 29:5-6, 29:25-30:5. The Government asserted there had been “all sorts of
In light of these revelations, which concerned a “matter of great import,” the Court
continued the trial by one week to allow the defense to file a motion to dismiss. Ex. L,
35:22-36:4, 38:14-17. Much to the defense’s surprise, the Government used that time to produce
additional exculpatory material which should have been produced well in advance of trial, which
it claimed had been “inadvertently” or “inexplicably” omitted from previous productions. Ex. Q.
Those materials included SA Chizmadia’s text messages with Mr. Mirnasiri from 2014 and
additional text messages from 2016 through 2018; the cell phone number of Massachusetts State
Police Detective Lieutenant Mark Frenzo, who worked closely with SA Chizmadia, and who
communicated with Mr. Mirnasiri over 40 times in October and November 2014; and additional
text messages between Mr. Mirnasiri and SA Matthew Elio from 2018.
The Government’s belated productions on the eve of trial contained several staggering
revelations, in addition to those the defense had already called to the Court’s attention. First, the
allegedly threatening phone calls made from a blocked number on August 4 and 6, 2014 were
almost certainly a fiction. There are no calls from blocked numbers to Mr. Mirnasiri’s cell phone
on either of those days. Ex. R. Although the defense had long requested phone records from Mr.
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Second, despite the Government’s repeated representations that agents initially contacted
Mr. Mirnasiri after the Saugus Police referred the investigation to the FBI, the phone records
demonstrate that it was Mr. Mirnasiri who contacted the FBI, and he did so before the Saugus
Third, stunningly, the Government advised the defense for the first time on May 25, 2018
that SA Chizmadia had provided Mr. Mirnasiri with recording equipment, including a phone
recording device and a recording device hidden in a water bottle in Mr. Mirnasiri’s office. Ex. S.
SA Chizmadia apparently believed that equipment was provided in February 2015, although the
Government had previously said it would be “preposterous” to have asked Mr. Mirnasiri to make
consensual recordings at that time after the assault. See Ex. F, 67:21-25; Ex. E, 56:6-10.
Shockingly, the Government produced no records whatsoever showing the chain of custody of
these recording devices or authorizing their use. Although Mr. Mirnasisi apparently recalled
recording an individual allegedly not connected with Mr. DeCicco’s case, the Government
Fourth, the text messages between Mr. Mirnasiri and his FBI handlers evidenced an
inappropriate personal relationship between them, including offers of meals, offers to assist Mr.
Mirnasiri with tax issues, sharing an obscene photograph, and the FBI agents keeping Mr.
Mirnasiri apprised of plans for Mr. DeCicco’s arrest, allowing him to record the event. Ex. T.
In its motion to dismiss, the defense argued the FBI had been running a stealth
investigation of Mr. DeCicco for months in 2014, failing to document their efforts and failing to
preserve exculpatory voicemails. The phone records demonstrated the FBI had been working
with Mr. Mirnasiri to attempt to record Mr. DeCicco before December 28, 2014. Docket No.
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324 at 6-8. The U.S. Attorney’s Office “evidently failed to understand or appreciate what was
afoot,” resulting in numerous false statements to the Court during Mr. DeCicco’s detention
hearings, and numerous Brady violations and other irregularities. Docket No. 304 at 1-2.
In response, the Government chose to repeat its previous misstatements in the face of
contradictory evidence. For example, the Government insisted there was no investigation of Mr.
DeCicco before December 28, 2014, and that SA Chizmadia had only talked briefly on the phone
and exchanged text messages with Mr. Mirnasiri prior to that date, in a “lengthy game of phone
tag.” Docket No. 309 at 3-4, 12. Despite the fact that Mr. Mirnasiri indisputably called SA
Chizmadia before the Saugus Police referred the matter to the FBI, the Government insisted the
investigation was first referred by the Saugus Police, who must have given Mr. Mirnasiri a phone
number to contact the FBI. Docket No. 309 at 3 n.3. The Government also vehemently disputed
the claim that it had failed to secure Mr. Mirnasiri’s phone records, arguing it subpoenaed all
“relevant” phone records during the investigation, despite the fact that it inarguably had failed to
secure the very phone records that could have led to the identity of the individual who was
allegedly threatening Mr. Mirnasiri. Docket No. 309 at 14. The Government also claimed that
discovery violations identified by the defense were merely mistakes, despite the fact that there
were at least four such “mistakes.” See Docket No. 309 at 1, 5 (failure to subpoena correct
telephone records for Mr. Mirnasiri was a “typo”); id. at 6 (government realized T-Mobile “had
sent incomplete records” in response to second trial subpoena); id. at 1, 7 (Government did not
“realize[ ]” its “mistake” that it failed to produce SA Chizmadia texts from 2014 until final pre-
trial); id. at 7 (Government did not “realize[ ]” it had not produced SA Chizmadia’s texts after
2015 until May 24, 2018); id. at 16 (Government “inadvertently omit[ed]” third spreadsheet).
At oral argument, the Court “note[d] its concern with the prosecution and the FBI’s
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handling of this case.” Ex. U, 46:25-47:1. The Court found “disconcerting” the “prosecution’s
failure to communicate with Special Agent Chizmadia, the repeated belated production of
exculpatory evidence to the Defendant and Special Agent Chizmadia’s inappropriate relationship
with Mir. Mirnasiri,” and noted that “without the dogged persistent of defense counsel, much of
this evidence may never had seen the light of day.” Id. at 47:1-9; see also id. at 48:13-17 (“There
certainly has been late disclosures here that suggest carelessness and poor communication
between the Assistant United States Attorney and Special Agent Chizmadia.”). The Court
attributed these errors to “a lack of diligence and competence, rather than bad faith,” and denied
Mr. DeCicco’s motion to dismiss due to lack of evidence that the Government’s conduct was
The Court did, however, allow the defense to depose SA Chizmadia. Id. at 47:25-48:3.
SA Chizmadia also repeated the Government’s misstatements at his deposition, testifying that
there “was no official investigation” of Mr. DeCicco before December 28, 2014. Ex. V, 9:7-10.
However, SA Chizmadia “may have” met Mr. Mirnasiri before December 9, 2014. Id. at 19:4-8.
SA Chizmadia explained the reference to a “debt” on the Form 1057 to mean that Mr. DeCicco
allegedly “felt he . . . was owed a piece of the business,” although that is not an ordinary
understanding of the term “debt.” Id. at 22:14-18. He also acknowledged the reference to “an
assault on Mirnasiri allegedly orchestrated by DeCicco” was not added to the FBI 302 until the
day before the complaint was issued in this case. Id. at 31:12-14, 31:20-23, 32:17-18. Contrary
to the Government’s previous representations, SA Chizmadia testified that Mr. Mirnasiri first
reached out to him. Id. at 39:10-13. Finally, SA Chizmadia stuck to the story that Mr. Mirnasiri
was not given recording equipment until after the assault. Id. at 86:17-23.
The Government continued to stand by its fictional story at trial. It elicited testimony
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from Mr. Mirnasiri that he received a threatening phone call on the same day as the flower
delivery, although that claim was contradicted by his phone records and even Mr. Mirnasiri
himself on cross examination. See Ex. W, 56:8-21, 165:25-166:1. The Government also elicited
testimony from Mr. Mirnasiri that it was SA Chizmadia who contacted him, although phone
records also showed that claim was false. See id. at 62:19-23.
On cross examination, Mr. Mirnasiri continued his pattern of lies, asserting he had
“never” been an FBI informant, see Ex. W, 80:5-7; Ex. J, 57:3-12, although the FBI had
acknowledged he was from the inception of this case. See Ex. B, ¶ 5. When confronted with
inconsistencies in his testimony, Mr. Mirnasiri – the Government’s star witness – says he
“forget[s] a lot of things” because he has “Alzheimer’s . . . in my family.” See Ex. J, 34:12-18.
Mr. Mirnasiri did tell the truth about at least one critical fact. He admitted the FBI had given
him recording equipment in 2014, not in 2015 as previously claimed, and he used that equipment
to record Charlie Lightbody. See Ex. W, 227:8-22. In other words, Mr. Mirnasiri admitted the
Government was not truthful when it told the Court he had no opportunity to record Mr. DeCicco
in 2014. Mr. Mirnasiri did have recording equipment, but he either failed to record his
conversations with Mr. DeCicco, or those recordings were never produced. See id. at 227:23-24.
Despite Mr. Mirnasiri’s repeated lies, SA Elio testified at trial that Mr. Mirnasiri “never
lied to me.” See Ex. A, 191:8-14, 192:7-12. The jury acquitted Mr. DeCicco in one hour.
II. ARGUMENT
A. Legal Standard
[T]he court, in any criminal case (other than a case in which the defendant is
represented by assigned counsel paid for by the public) . . . may award to a
prevailing party, other than the United States, a reasonable attorney’s fee and
other litigation expenses, whether the court finds that the position of the United
States was vexatious, frivolous, or in bad faith, unless the court finds that special
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circumstances make such an award unjust. 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.
Amendment, told Congress, the provision was intended to address situations where prosecutors
and investigators are “not just wrong, they are willfully wrong, they are frivolously wrong. They
keep information form you that the law says they must disclose. They hide information. They
do not disclose exculpatory information to which you are entitled. . . .” See 143 Cong. Rec.
Mr. DeCicco was represented by retained counsel throughout this litigation, including at
trial where he was indisputably the prevailing party. The Court should award Mr. DeCicco his
reasonable attorneys’ fees and litigation costs in the amount of $3,041,989.98 because the
Government’s position in instituting and maintaining this litigation was vexatious, frivolous, and
B. The Position of the United States was Vexatious, Frivolous, or in Bad Faith
An award under the Hyde Amendment is appropriate where, as here, the Government’s
position was vexatious, frivolous, or in bad faith. One prong is sufficient to support an award;
the Court need not find that the Government’s conduct was vexatious, frivolous, and in bad faith.
United States v. Knott, 256 F.3d 20, 29-30 (1st Cir. 2001). Mr. DeCicco bears the burden of
proof, but need only meet that burden by a preponderance of the evidence. The Court may
consider the conduct of the U.S. Attorney’s Office and the FBI, including conduct prior to
litigation. See United States v. Reyes-Romero, 364 F. Supp. 3d 494, 511 (W.D. Pa. 2019).
An award of fees under the Hyde Amendment for “vexatious” conduct requires “both a
showing that the criminal case was objectively deficient, in that it lacked either legal merit of
factual foundation, and a showing that the government’s conduct, when viewed objectively,
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manifests maliciousness or an intent to harass or annoy.” United States v. Knott, 256 F.3d 20, 29
(1st Cir. 2001). Mr. DeCicco need not prove the Government’s subjective motivation was
vexatious. United States v. Knott, 256 F.3d 20, 30-31 (1st Cir. 2001); see also United States v.
Gardner, 23 F. Supp. 2d 1283 (N.D. Ok. 1998) (vexatious conduct need not be brought in
subjective bad faith). Conduct is frivolous where “the government pursued a prosecution
without any foundation or basis to believe that it might prevail.” United States v. Knott, 256
F.3d 20, 29-30 (1st Cir. 2001); see also United States v. Reyes-Romero, 364 F. Supp. 3d 494,
510 (W.D. Pa. 2019) (frivolous position is “groundless with little prospect of success”). Bad
and the Government “acted upon a state of mind affirmatively operating with furtive design or ill
will.” United States v. Reyes-Romero, 364 F. Supp. 3d 494, 510 (W.D. Pa. 2019).
The Government’s conduct here rose to the level of vexations, frivolous, or in bad faith.
The Government brought a weak case based on the testimony of a longtime informant, without
bothering to confirm even the most basic details of his story. The Government did so because it
individual Mr. Mirnasiri admitted to recording at trial, and not because the evidence warranted a
federal extortion charge. The Government continued to take vexatious, frivolous, or bad faith
positions by making a series of misrepresentations to the Court to take away Mr. DeCicco’s
freedom for a period of fifteen months. When the Government realized its earlier statements
were untrue or misleading, it still chose to defend them. Finally, the Government failed to
DeCicco lost fifteen months of his freedom and millions of dollars in legal fees only to be
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There is ample evidence that the Government’s decision to charge Mr. DeCicco with a
federal crime was vexatious, frivolous, and in bad faith. It is even worse that the Government
did so to pressure Mr. DeCicco into cooperating against another higher profile target or to
The case was without evidentiary support from inception and should never have been
brought. The charges rested on the say so of an informant, and the Government would have been
less sanguine about the strength of its case had it undertaken the most basic investigation of Mr.
Mirnasiri’s allegations. Had the Government obtained Mr. Mirnasiri’s phone records shortly
after the assault was first reported, an obvious step when a victim has reported receiving
threatening phone calls, it would have quickly realized that Mr. Mirnasiri was lying. His phone
records also would have undermined another critical aspect of Mr. Mirnasiri’s story; they would
have demonstrated that he was in regular contact with Mr. DeCicco during the period between
the flower delivery and the assault. Mr. Mirnasiri and Mr. DeCicco were neighbors with a
history of person disputes wholly unrelated to business. Had the Government realized the flower
delivery was not the last communication between the two, it would have questioned its chances
of proving beyond a reasonable doubt that the assault was motivated by any interest in Mr.
Mirnasiri’s auto dealership, as opposed to some other motivation. Likewise, had the U.S.
Attorney’s Office reviewed Mr. Mirnasiri’s phone records or asked the FBI agent working with
Mr. Mirnasiri, it would have known that he was in regular contact with the FBI during a period
when he would have had ample opportunities to record Mr. DeCicco or to retrieve the voicemails
the investigation, which led to the loss or destruction of exculpatory evidence. The FBI
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completely failed to document its provision of recording equipment to Mr. Mirnasiri in 2014 or
2015, in direct violation of the FBI’s own rules. See United States v. Holland, 34 F. Supp. 2d
346, 361, 367 (E.D. Va. 1999), vacated in part on other grounds at 48 F. Supp. 2d 571. The FBI
also failed to preserve exculpatory voicemails Mr. DeCicco left for Mr. Mirnasiri in December
2014, although the FBI was in frequent communication with Mr. Mirnasiri on the same day. The
U.S. Attorney’s Office failed to properly supervise the FBI during this early phase of the
The Government’s decision to bring an extortion charge against Mr. DeCicco was
malicious, vexatious and in bad faith. The Government was willing to overlook the weaknesses
in its case because it wanted to pressure Mr. DeCicco to cooperate in a high-profile investigation.
Even if Mr. DeCicco was not willing to cooperate, charging him benefited the FBI’s longtime
informant, who was delighted to see his neighbor arrested. It is troubling that the Government
charged a personal enemy of its informant, with whom the FBI had cultivated an inappropriate
friendship. See Holland, 34 F. Supp. 2d at 361 (awarding fees where FDIC “used the ‘in
terrorem’ threat of criminal prosecution and attendant publicity” to unduly force settlement).
The Government continued to take positions that were vexatious, frivolous or in bad faith
during this litigation. The Government made a serious of misrepresentations to the Court during
detention hearings. Those false statements are, at a minimum, the result of a breakdown in
communication between the U.S Attorney’s Office and the FBI. Had prosecutors closely
supervised the investigation or promptly reviewed Mr. Mirnasiri’s phone records, they would not
have told the Court that the investigation did not start until December 28, 2014 or that it had
been the FBI that initially reached out to Mr. Mirnasiri instead of the other way around. The
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prosecution likewise should have known and admitted that Mr. DeCicco and Mr. Mirnasiri had
been in contact between the flower delivery and the assault. That the Government did not
correct these misstatements, despite the FBI’s participation in multiple detention hearings, is
further evidence that the Government’s conduct was vexatious, frivolous and in bad faith.
critical materials in violation of Brady, the Rules of Criminal Procedures, and this Court’s Local
Rules likewise demonstrates vexatious, frivolous or bad faith conduct. Importantly, the
Government failed to subpoena Mr. Mirnasiri’s phone records in a timely manner, and even then
failed to subpoena records for the correct telephone number, a number FBI agents clearly had all
along, until defense counsel questioned the subpoena. The Government’s error was no mere
typographic mistake; the Government did not follow up when Mr. Mirnasiri’s carrier, T-Mobile,
said the number was actually assigned to a different carrier, which should have been a red flag.
The Government also did not seek those records from Mr. Mirnasiri himself, although he still
had the telephone he used during the critical period. The result is that significant exculpatory
evidence available in those records was not produced until the eve of trial, after numerous
requests from the defense. The Government also failed to review or collect FBI communications
with Mr. Mirnasiri until gaps in its production were identified by defense counsel, although those
communications were in the possession of the FBI. See United States v. Reyes-Romero, 364 F.
Supp. 3d 494, 520 (W.D. Pa. 2019) (finding failure to produce exculpatory records in possession
of DHS was bad faith). Although it is the prosecution that labors under a constitutional duty to
disclose exculpatory evidence, these errors would never had been discovered were it not for the
dogged persistence of defense counsel. The Government never took responsibility for its failure
to produce discovery in accordance with its ethical obligations, instead calling its failure
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“inadvertent,” “inexplicable,” “typos,” or “errors,” all described in the passive voice blaming
others or without taking responsibility for those errors, at least eleven times. 8
The Government’s vexatious, frivolous, and bad faith conduct continued in the lead up to
trial, even after some of its false statements had been brought to light. It is frankly astonishing
that the prosecutor was surprised at the final pretrial conference to learn the FBI had been in
regular communication with the informant for months before the first reported interview and the
assault. Even worse, upon learning the FBI had not kept prosecutors fully apprised of the early
stages of the investigation, the U.S. Attorney’s Office nevertheless chose to explain away the
inconsistencies in the Government’s initial account of the investigation. When it became clear
that the Government had made false statements during detention hearings, it did not accept
responsibility, apologize and correct them but instead repeated those errors with improbable
explanations. See United States v. Reyes-Romero, 364 F. Supp. 3d 494, 502-03 (W.D. Pa. 2019)
(awarding fees under Hyde Amendment where Government persisted in repeating argument that
had become untenable and attempted to explain away inconsistent and incorrect testimony).
Thus, at least 45 telephone communications between investigators and Mr. Mirnasiri over a
period of months merely became a long game of phone tag. Docket No. 309 at 12. The
indisputable fact that Mr. Mirnasiri first called SA Chizmadia, and not the other way around as
the Government had steadfastly maintained, became a story about how the Saugus Police must
have passed on SA Chizmadia’s phone number, although that was never documented in any
police report. Id. at 3. The Government’s persistence in sticking by its original story, in the face
8
See Ex. Q at 1 (“inexplicably”), 2 (noting mistaken “belie[f]”), 3 (blaming Massachusetts State Police for
Government’s failure to “notice[ ]” text messages with Mr. Mirnasiri), 4 (“inadvertently”); Ex. U 9:6-7 (“I realized
the error.”); Docket No. 171 at 13 (“inadvertently”); Docket No. 309 at 1 (“typographical error”), 5 (same), 6
(“realized that T-Mobile had sent incomplete records”), 7 (“error” and “inadvertent”), 16 (“inadvertently”).
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of clear evidence to the contrary, was frivolous at the very least. See Reyes-Romero, 364 F.
Supp. 3d at 515 (Government’s litigation position frivolous relied on incorrect position in the
face of affirmative reasons to believe its confidence in previous argument was misplaced).
When there is smoke there is fire. The amount of misconduct in this case goes far
beyond mere negligence or benign misjudgment, and a finding of bad faith is warranted. 9
In light of the extraordinary efforts that were required on the part of defense counsel to
uncover the Government’s misconduct, Mr. DeCicco’s attorneys’ fees and costs in the amount of
$3,041,989.98 are reasonable. Miner Aff. ¶ 25. This was an unusual case, warranting an hourly
rate ranging from $485 to $1139.50, for experienced defense counsel well-suited to uncover the
Government’s misconduct. Defense counsel worked 3,538 to defend this case, a number that
was inflated by the need to review the Government’s untimely productions and to prepare a
motion to dismiss while simultaneously preparing for trial. The Government should, in turn, be
required to compensate Mr. DeCicco for his fees and expenses in successfully defending this
case.
III. CONCLUSION
For the foregoing reasons, the Court should find that the United States Attorney’s Office
and the FBI are jointly and severally liable for Mr. DeCicco’s attorneys’ fees and litigation
9
Although the Court did not find bad faith on the part of the U.S. Attorney’s Office on the eve of trial, when the
Government’s conduct first came to light, that was in the context of a rare motion to dismiss for prosecutorial
misconduct. Even if the evidence of bad faith was insufficient to warrant dismissal of the Indictment, it is
nevertheless sufficient to support a finding of bad faith by a preponderance of the evidence such that an award of
fees under the Hyde Amendment is appropriate.
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GARY DECICCO
By his attorneys,
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was served by ECF on counsel for the
Government on November 12, 2019.
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