U.S. Department of Justice United States Attorney
District of New Jersey
970 Broad Street, Suite 700 (973)645-2700 Newark, New Jersey 07102
September 10, 2013 BY ECF FILING Hon. Kevin McNulty United States District Judge United States District Court for the District of New Jersey Frank R. Lautenberg Post Office & Courthouse Federal Square Newark, New Jersey, 07101
Re: United States v. Felix Roque, et al. Criminal No. 12-540 (KM) Dear Judge McNulty:
The Government respectfully submits this letter in support of its motion in limine
to admit evidence related to uncharged acts of the defendants.
BACKGROUND
Overview of the Defendants’ Offense Conduct This case involves a conspiracy between Felix Roque, the mayor of West New
York, and his son, Joseph Roque, to disrupt a website devoted to comment and criticism
of Felix’s administration of the town (the “Website”) and to harass individuals associated
with the Website through computer hacking.1
1 This summary is based on the allegations contained in the Superseding Indictment and exhibits that the Government intends to offer into evidence at trial.
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In furtherance of the conspiracy, Joseph hacked into an e-mail account that Victim
1, the website’s administrator, used to operate the Website. Once inside that account,
Joseph obtained: (1) information about the domain name and web hosting services that
Victim 1 used to operate the Website; and (2) information about individuals who
contributed or offered assistance to the Website. Joseph also hacked into the social
media account that Victim 1 used to promote the Website to obtain information about the
people behind the Website. Finally, Joseph cancelled and deleted the domain name and
web hosting accounts that enabled the Website to operate and, as a result, the Website
was shut down (i.e., its content was rendered unavailable to the public).
After Joseph identified the people involved (or believed by the defendants to be
involved) with the Website, Felix contacted them in order to harass and intimidate them
in retaliation for offering assistance to the Website. In a recorded meeting with Victim 1,
Felix stated, in substance and in part, that: (1) “I have access, or should I say, somebody
has access” to the Website; (2) he has seen documents showing who was involved; (3) he
learned of Victim 5’s involvement with the Website from Victim 5’s communications
with the Website, but “[l]ittle did [Victim 5] know that somebody else was
communicating with him that works for me”; and (4) “What I am doing is not very
kosher.” (Government Exhibit 604TR).
The Charges On April 18, 2013, a grand jury sitting in Newark returned a two-count
Superseding Indictment in this case. Count 1 of the Superseding Indictment charges that
between on or about February 6, 2012 and on or about February 17, 2012, in Hudson
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County, in the District of New Jersey, and elsewhere, defendants Felix Roque and Joseph
Roque did knowingly and intentionally conspire and agree with each other to commit
offenses against the United States, namely, to:
(a) intentionally access a computer without authorization and exceed authorized access and thereby obtain information from a protected computer, that is, a Microsoft computer used in and affecting interstate commerce and communication to host the contents of an e-mail account:
(i) in furtherance of criminal acts in violation of the laws of the United
States, namely, knowingly causing the transmission of programs, information, codes, and commands, and as a result of such conduct, intentionally causing damage without authorization to protected computers, that is, Go Daddy and Weebly computers used in and affecting interstate commerce to host the domain name and content for a website, contrary to Title 18, United States Code, Section 1030(a)(5)(A); and
(ii) in furtherance of criminal acts in violation of the laws of the State of
New Jersey, namely, harassment, contrary to N.J.S.A. Sections 2C:33-4(a) and (c), all contrary to Title 18, United States Code, Sections 1030(a)(2)(C) and (c)(2)(B)(ii); and
(b) intentionally access a computer without authorization and exceed
authorized access and thereby obtain information from a protected computer, (a Facebook computer) used in and affecting interstate commerce and communication to promote a website, in furtherance of criminal acts in violation of the laws of the State of New Jersey, namely, harassment, contrary to N.J.S.A. Sections 2C:33-4(a) and (c),
all contrary to Title 18, United States Code, Sections 1030(a)(2)(C) and (c)(2)(B)(ii), in
violation of Title 18, United States Code, Section 371.
Count 2 of the Superseding Indictment charges that between on or about February
6, 2012 and on or about February 17, 2012, in Hudson County, in the District of New
Jersey, and elsewhere, defendants Felix Roque and Joseph Roque, did knowingly and
intentionally access a computer without authorization and exceed authorized access and
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thereby obtain information from a protected computer, that is, a Microsoft computer used
in and affecting interstate commerce and communication to host the contents of an e-mail
account:
(i) in furtherance of criminal acts in violation of the laws of the United States, namely, knowingly causing the transmission of programs, information, codes, and commands, and as a result of such conduct, intentionally causing damage without authorization to protected computers, that is, Go Daddy and Weebly computers used in and affecting interstate commerce to host the domain name and content for a website, contrary to Title 18, United States Code, Section 1030(a)(5)(A); and
(ii) in furtherance of criminal acts in violation of the laws of the State of New
Jersey, namely, harassment, contrary to N.J.S.A. Sections 2C:33-4(a) and (c),
in violation of Title 18, United States Code, Sections 1030(a)(2)(C) and (c)(2)(B)(ii) and
Section 2.
DISCUSSION
I. Legal Standards Governing the Admissibility of Evidence of a Defendant’s Uncharged Acts
In United States v. Cross, 308 F.3d 308, 320 (3d Cir. 2002), the Third Circuit
explained that evidence that is “intrinsic” to the charged offense is not subject to the
requirements of Fed. R. Evid. 404(b). In United States v. Green, 617 F.3d 233, 248-49
(3d Cir. 2010), the Circuit identified two “narrow” categories of evidence of uncharged
acts that qualified as “intrinsic”:
First, evidence is intrinsic if it “directly proves” the charged offense. This gives effect to Rule 404(b)’s applicability only to evidence of “other crimes, wrongs, or acts.” If uncharged misconduct directly proves the charged offense, it is not evidence of some “other” crime. Second, uncharged acts
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performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime.
Id. (internal citations and quotations omitted); see Cross, 308 F.3d at 320; United States
v. Bowie, 232 F.3d 923, 929 (D.C.Cir.2000). If evidence is deemed “intrinsic” it may be
admitted without providing advance notice or a limiting instruction. Id. at 249.
For all other evidence of uncharged acts to be admitted, the proponent must satisfy
the requirements of Fed. R. Evid. 404(b), which states, in part: “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident[.]” FED. R. EVID. 404(b). “Rule 404(b) is a rule of
inclusion rather than exclusion.” United States v. Cruz, 326 F.3d 392, 395 (3d Cir. 2003).
Federal courts “favor the admission of evidence of other crimes, wrongs, or acts if such
evidence is relevant for any purpose other than to show a mere propensity or disposition
on the part of the defendant to commit the crime.” Id. (internal quotation marks omitted);
see Huddleston v. United States, 485 U.S. 681, 688-89 (1988) (“Congress was not nearly
so concerned with the potential prejudicial effect of Rule 404(b) evidence as it was with
ensuring that restrictions would not be placed on the admission of such evidence”).
To satisfy Rule 404(b), other-acts evidence must (1) have a proper evidentiary
purpose; (2) be relevant; (3) satisfy Rule 403; and (4) be accompanied by a limiting
instruction (when one is requested) about the purpose for which the jury may consider it.
Green, 617 F.3d at 249; see also United States v. Davis, -- F.3d --, 2013 WL 4035547, at
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*5 (Aug. 9, 2013) (“All this [test] really means is that such evidence must have a
nonpropensity purpose and satisfy the same relevancy requirements as any other
evidence.”). Proponents of Rule 404(b) evidence “must do more than conjure up a proper
purpose – they must also establish a chain of inferences no link of which is based on a
propensity inference.” United States v. Smith, -- F.3d --, 2013 WL 3985005, at * 4 (3d
Cir. Aug. 6, 2013) (citing authorities). The Third Circuit recently recognized:
all Rule 404(b) evidence is at least somewhat prejudicial to the party against whom it is admitted and will invite the jury to make inferences about his or her character. This alone cannot lead to exclusion. We resolve this inherent tension by requiring that the purpose of the Rule 404(b) evidence be established without an inference that the party against whom it is admitted acted in conformity with whatever the evidence of the prior act says about his or her character. We therefore do not exclude evidence simply if it invites character inferences, but only evidence that is used to prove a person's character and that invites the inference that the person acted in conformity with that character, and was therefore more likely to have committed the charged crime.
Id.
II. The Evidence of Uncharged Acts Is Admissible
The Government respectfully requests an in limine ruling concerning the evidence
of uncharged acts, as described below.2 While most of this evidence may not appear to
be “classic” Rule 404(b) material, the Third Circuit’s precedential decision in Green and,
more recently, those in Smith and Davis, prompt the Government’s broad disclosure of all
anticipated evidence that might conceivably implicate the rule.
2 The Government provided written notice of this evidence to the defendants by a letter dated September 2, 2013. The letter followed a conference call with counsel on August 22, 2013, in which the Government verbally identified this evidence.
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A. Content of the Website
1. The Proffered Evidence
The Government seeks an in limine ruling as to Government Exhibit 601, which
consists of print-outs reflecting the content of the Website. (See Attachment A, hereto,
which includes a copy of Government Exhibit 601). Those pages contain “blog” postings
authored by Victim 1 that refer to news articles and other public of sources of
information about the administration of West New York under defendant Felix Roque
and criticize the same. The content, while unflattering of Felix Roque and the West New
York officials who reported to him, is neither vulgar nor debased. Rather, it focuses on
what Victim 1 asserts to be the broken promises, self-enrichment, and unethical conduct
of public officials who serve West New York.
2. The Proffered Evidence is Admissible under Rule 404(b) and Satisfies Rule 403
The Government does not seek to introduce the content of the Website to prove
the truth of any matter asserted therein; rather, what is relevant is the fact that the
Website existed and that its content was open to the public. More specifically, the
Government will offer the content of the Website as proof (1) of Felix and Joseph’s
motive to engage in the charged computer hacking crimes, and (2) that they committed
the crimes with the requisite mens rea. These are matters of legitimate consequence to
the jury’s determinations in this case. Moreover, the probative value of this evidence
does not depend on an inference that Felix Roque has a propensity to commit bad or
criminal acts.
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First, the content of the Website answers the following question: Why would
Felix and Joseph Roque commit the crimes alleged in the Superseding Indictment, which
involved hacking into Victim 1’s password-protected e-mail and social media accounts?
The Website content strongly suggests the answer: The defendants did so to silence
critics of Felix’s administration and seek political advantage. Additionally, this evidence
establishes that Joseph was motivated to commit the charged crimes (e.g., to help his
father gain political advantage by shutting down the Website and silencing his critics)
and it tends to prove that Joseph committed the computer hacking attributed to him in the
Superseding Indictment.
Second, the charges in the Superseding Indictment require the Government to
prove a variety of mens rea elements to the jury unanimously and beyond a reasonable
doubt. See, e.g., Third Circuit Model Jury Instruction § 6.18.371E (conspiracy under 18
U.S.C. § 371 requires proof that the defendant joined the conspiracy knowing of its
objectives and intending to help further or achieve those objectives); United States v.
Moran -Toala, No. 08–CR–103 (FB), 2012 WL 748612, at *3 (E.D.N.Y. Mar. 8, 2012)
(instructing jury that “in furtherance” under 18 U.S.C. § 1030(a)(2)(C) means with “the
intent to help, advance, move forward, promote, or facilitate” an offense), vacated and
remanded on other grounds, Docket No. 12-2010-cr, 2013 WL 4046291, at *10 (2d Cir.
Aug. 12, 2013). The content of the Website is circumstantial proof3 of these elements
according to the following chain of logical inferences: (1) the site offered a source of 3 Third Circuit Model Jury Instruction § 6.18.371E provides that jurors may consider circumstantial evidence, including whether the defendant had “some stake in the achievement of the conspiracy’s objective” to prove the required intent.
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public information and commentary dedicated to criticizing Felix Roque; (2) Felix and
Joseph wanted to silence that criticism and for the site to be shut down; (3) they engaged
in the acts alleged in the Superseding Indictment with the intent to achieve those goals.
There is no propensity inference in this chain. 4
Finally, the significant probative value of the Website’s contents is not
substantially outweighed by the danger of unfair prejudice to defendant Felix Roque.
The charges in this case are much more serious than anything asserted in the Website.
Moreover, in Green, the Third Circuit noted instances in which it found no error in
reviewing the admission of highly prejudicial “other acts” evidence under Fed. R. Evid.
403. 617 F.3d at 252 (citing United States v. Sriyuth, 98 F.3d 739, 748 (3d Cir. 1996)
(evidence of uncharged rape) and United States v. Scarfo, 850 F.2d 1015, 1020 (3d Cir.
1988) (evidence of uncharged murders). Last, any risk of unfair prejudice will be
eliminated by providing a limiting instruction when Government Exhibit 601 is
introduced and once again at the end of trial.
4 Additionally, should the defendants or their counsel (1) characterize the content of the Website as tortious or unlawful, or (2) impugn the witnesses for their involvement with such an endeavor, the content would be offered for the legitimate purpose of responding to those claims. The Government anticipates that both are likely based on the statements of counsel and their arguments in pretrial motions.
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B. Uncharged Acts of Social Engineering and Impersonation by Joseph Roque During and In Furtherance of the Conspiracy
1. The Proffered Evidence
The Superseding Indictment charges that between on or about February 6, 2012,
through on or about February 17, 2012, Joseph Roque engaged in numerous acts of
impersonation and misrepresentation in furtherance of the conspiracy charged in Count 1.
(See, e.g., Superseding Indictment, Count 1, ¶¶ 4.a., 4.b, 4.c., 4.e., 4.l., 4.n., 4.o., 4.s.,
4.v.). At trial, the Government will introduce evidence not only of those acts but of
certain other such acts that were (1) contemporaneous with the charged acts; (2) of a
similar nature; (3) committed in furtherance of the conspiracy. (See Attachment B,
hereto, which includes copies of the relevant exhibits).
Specifically, the Government will offer evidence that on or about February 7,
2012, at approximately 1:40 p.m. (EST), Joseph Roque created an e-mail account –
westnewyorknews2012@[Provider 1].com (hereinafter, the “WNYN2012 E-mail
Account”) – in the name of Cosmo Cirillo, a politically-active person in West New York
who had publicly criticized Felix Roque about his administration of the town.
(Government Exhibits 500-50; 500-51). Just minutes after creating the account, using the
“Contact Us” feature on the Website, Roque sent a message to the Website’s
administrator, Victim 1. (Government Exhibit 500-115). That message went to Victim
1’s WNYN E-mail Account, the account that Roque later hacked, as alleged in Count 2.
(Id.) In the message, Joseph Roque claimed to be Mr. Cirillo and wrote “please contact
me[.] I have valuable info for your group[.]” (Id.) In a follow-up e-mail, Joseph Roque
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continued to impersonate Cirillo: “I’m sure you’ve heard of me[.] I’ve been battling
Roque for a while now and whatever I can do to help please let me know.”5 (Government
Exhibit 500-54).
Additionally, the Government will offer evidence that on or about February 8,
2012, after hacking into the WNYN E-mail Account, Joseph Roque used it to contact
Tom Bertoli – another politically-active person who had contacted Victim 1 through the
Website and offered to help. (Government Exhibit 500-159). This time impersonating
Victim 1, Roque used the WNYN E-mail Account to attempt to trick Mr. Bertoli into
implicating himself as a contributor of leads for the Website.6 (Government Exhibits
500-159; 500-161; 500-162).
2. The Proffered Evidence Is “Intrinsic”
The Government seeks an in limine ruling as to this evidence. These acts of social
engineering and impersonation directly prove the instant charges and, therefore, are
“intrinsic” to the instant charges. They show that Joseph Roque was working covertly
5 Joseph Roque’s creation and use of WNYN2012 E-mail Account is relevant for other reasons, as well. First, an e-mail from the WNYN 2012 E-mail Account reflects Joseph Roque’s attempt to elicit from Victim 1 the answer to a security question associated with the WNYN E-mail Account. Security questions are commonly used by computer service providers to validate requests they receive for access to online account where a user claims to have lost or forgotten his password. Second, another e-mail contained in the WNYN 2012 E-mail Account is consistent with Joseph Roque using that account to research Provider 1’s methodology for sending password links to alternative e-mail accounts. Finally, the relevance of the WNYN2012 E-mail Account is underscored by Joseph Roque’s statement to Felix Roque: “that’s my e-mail that I used against them.” (Government Exhibit 500-88). 6 Felix Roque referred to Mr. Bertoli in a recorded conversation that the Government will offer at trial. Thus, Joseph Roque’s attempt to probe Mr. Bertoli’s suspected involvement in the Website is relevant because it informs the content and significance of Felix Roque’s statements on the recording in which he boasts of uncovering Mr. Bertoli’s offer of assistance to the Website.
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and purposefully to contact individuals who had contributed to the Website to identify
them and determine the scope of their involvement in the Website. They are probative of
Joseph Roque’s commitment to the object of the conspiracy, namely, to gather and
provide information that his coconspirator, Felix Roque, could use to intimidate, harass,
and retaliate against the Website’s contributors. These acts – which are contemporaneous
with the others alleged in the Superseding Indictment – reveal a degree of sophistication
and an intent to deceive others, which are probative of Joseph Roque’s mens rea at that
time. Finally, notwithstanding that they are not charged these acts are overt acts in
furtherance of the harassment object of the conspiracy charged in Count 1. See United
States v. Schurr, 794 F.2d 903, 908 n.4 (3d Cir. 1986) (“It is well settled that the
government can prove overt acts not listed in the indictment, so long as there is no
prejudice to the defendants thereby”); United States v. Adamo, 534 F.2d 31, 38-39 (3d
Cir.), cert. denied, 429 U.S. 841 (1976).
Accordingly, the Court should allow this evidence and make a finding on the
record that the evidence is “intrinsic” under the formulation in Green.
3. Alternatively, the Proffered Evidence is Admissible under Rule 404(b) and Satisfies Rule 403
In the alternative, the Government asks the Court to admit this evidence consistent
with Fed. R. Evid. 404(b) and related Circuit precedent. As discussed above, the
evidence is offered for proper purposes and is relevant. From this evidence the jury can
logically infer that Joseph Roque’s hacking conduct was purposeful and methodical, not
committed on a whim or absent-mindedly. No part of this depends on an inference that
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Joseph has a propensity for committing bad acts. Finally, the probative value, which is
very high, is not substantially outweighed by the risk of unfair prejudice to the defendant
because, among other things, the other acts evidence in question is not more serious than
the conduct charged in the Superseding Indictment. Further, the evidence can be
introduced subject to a limiting instruction.
C. Defendants’ Joint Activity to Shape Opinion of Felix Roque on the Internet
1. The Proffered Evidence
On February 10, 2012, Felix Roque sent an e-mail to Joseph Roque directing him
to post favorable comments about Felix’s administration of West New York that Felix
had apparently written about himself. (Government Exhibit 500-84). In addition, on
February 7, 2012, Joseph Roque sent an e-mail to Felix Roque stating, in sum and
substance, that he (Joseph) would get to the bottom of who was posting comments under
username “ROQUELIED.” (Government Exhibit 200-114). Those e-mails were
exchanged during the conspiracy and “book-ended” the computer hacking activity
charged in this case.
2. The Proffered Evidence is Admissible under Rule 404(b) and Satisfies Rule 403
The Government respectfully requests an in limine ruling as to this evidence.
First, the evidence is probative of the relationship between Joseph and Felix at the time of
the offense and, specifically, shows that (1) Felix directed Joseph to take action on the
Internet to cast Felix and his administration of West New York in a positive light, and (2)
that Joseph readily complied. See generally, United States v. Simmons, 679 F.2d 1042,
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1050 (3d Cir. 1982) (recognizing that other crimes evidence may be admissible if offered
for any non-propensity purpose, and identifying the need “to provide necessary
background information” about the relationships among the players as a proper purpose).
The evidence also shows that at the time of the events alleged in the Superseding
Indictment the defendants were working in concert on managing public perception of
Felix’s administration of West New York on the Internet. In light of the charges of
conspiracy (Count I) and aiding and abetting computer hacking (Count II), evidence that
fleshes out their relationship and shows their shared objectives is particularly
consequential here. Second, the relationship between the evidence and the purpose for
which the Government offers it is fairly direct and no “propensity” inference is part of
this equation. Third, the balancing test under Rule 403 favors the admission of the
evidence. There is significant probative value to this evidence and the risk of unfair
prejudice to the defendants, if there is any, is negligible given that nature of these “other
acts.”
D. Victim 1’s Motivation for Creating the Website and Related Use of an Alias
1. The Proffered Evidence
The Government intends to elicit testimony from Victim 1 concerning his
motivation for creating the Website. It is anticipated that Victim 1 will testify that he did
so, among other things, to expose what he perceived to be the lies, corruption, and
unethical behavior of Felix Roque’s administration of West New York. The Government
will not seek to have Victim 1 elaborate further. Additionally, Victim 1 will be asked to
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explain his reason for setting up the Website anonymously and using an alias – Maria
Pascuale – to promote and administer it. The Government anticipates Victim 1 will
testify that he feared retribution from Felix Roque and his allies if his (Victim 1’s)
involvement with the Website were revealed. The Government does not intend to elicit
information about any specific acts.
2. The Proffered Evidence is Not Subject to But Nonetheless Satisfies Rule 404(b), as well as Rule 403
Because the Government intends to elicit only Victim 1’s motivation and will not
inquire about specific instances of conduct by Felix Roque, there is no need to evaluate
the proffered evidence under Rule 404(b). Should the Court conclude that it is prudent
to do so, the Government easily satisfies the rule. Victim 1’s anticipated testimony
regarding his motivation to create the Website and related use of an alias will be offered
for the legitimate, non-propensity purpose of “completing the story” of the case and to
offer background information about the relationship between Victim 1 and Felix Roque.
Both have been recognized by the Third Circuit as legitimate purposes. See Green, 617
F.3d at 249 (“Thus, most, if not all, other crimes evidence currently admitted outside the
framework of Rule 404(b) as “background” evidence will remain admissible under the
approach we adopt today.”); Simmons, 679 F.2d at 1050; Cross, 308 F.3d at 320. The
connection between this evidence and the non-propensity purpose for which it is offered
is direct, not inferential – thus, there is no weak link. Finally, given that Victim 1 will not
testify about particular events involving Felix Roque, the danger of unfair prejudice is
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reduced and, together with limiting instructions, does not substantially outweigh the
probative value of this evidence.
CONCLUSION
Accordingly, the Government respectfully requests that the Court admit the
evidence described herein and place on the record the requisite findings under Fed. R.
Evid. 401, 404(b), and 403.
Respectfully submitted,
PAUL J. FISHMAN United States Attorney
/s/ L. Judson Welle
By: BARARA R. LLANES L. JUDSON WELLE Assistant United States Attorney Attachments Cc: John P. McDonald, Esq. (counsel for defendant Felix Roque) (by ECF & e-mail) John A. Azzarello, Esq. (counsel for defendant Joseph Roque) (by ECF & e-mail)
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