UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 22-CR-20340-WILLIAMS 

UNITED STATES OF AMERICA, 

vs. 

MASPHAL KRY, 

 Defendant. 

_________________________________ 

SUPPLEMENTAL SUBMISSION IN SUPPORT OF MOTION TO DISMISS THE 

INDICTMENT AND, IN THE ALTERNATIVE, FOR SANCTIONS FOR 

GOVERNMENT’S DESTRUCTION OF AND LATE DISCLOSURE OF EVIDENCE 

The government falsely states that no electronic communications between its agents 

and the Cooperating Witness (“CPI”) were lost through the “wiping” of its agents’ phones in 

late-Summer 2023. Materials produced to the defense confirm that the agents communicated 

with the CPI during the periods in which communications were purportedly lost.1 

Accordingly, due to the government’s willful destruction of material evidence, Mr. Kry 

submits that an appropriate sanction is either (a) dismissal of the Indictment, or (b) an order 

barring SA Manera and SA Gattorno from providing testimony as the trial continues. 

1. SA Manera 

The government produced messages between SA Manera and the CPI during the 

following time periods: 

 February 26, 2018 to March 20, 2022 (WhatsApp) 

 October 4, 2022 to November 21, 2022 (Signal) 

1

 As reflected in the demonstrative chart, attached as Exhibit 3. 

Case 1:22-cr-20340-KMW Document 310 Entered on FLSD Docket 03/13/2024 Page 1 of 6
2

 September 22, 2023 to December 13, 2023 (text messages)2 

The government has not produced any texts or messages between SA Manera and the CPI 

for the following time periods: 

 March 21, 2022 to October 3, 2022 

 November 22, 2022 to September 21, 2023 

The following facts make clear that the government, or the agents, destroyed communications 

between SA Manera and the CPI. 

First, on October 13, 2022, either SA Manera or the CPI sent a Signal message stating, 

“Sent you a WhatsApp.” See ECF 307-2 at 9.3 The recipient of this message responded with 

a thumbs-up emoji. See id. The WhatsApp messages reference in this Signal exchange were 

not produced. The Court must conclude that the government’s representation that no 

communications have been lost or destroyed is not factual. 

Second, on November 8, 2022, either SA Manera or the CPI instructed the other via 

Signal, “Bad service, text me.” See ECF No. 307-2. Clearly SA Manera and the CPI 

communicated via text message around this time. Yet the government has only produced text 

messages between SA Manera and the CPI dated after September 2023. The Signal messages 

between SA Manera and the CPI provide strong evidence that the government has destroyed 

text messages with the CPI. 

2

 The defense’s Motion, ECF No. 301 initially represented to the Court that it had text 

messages from September 2023 to February 2024. This representation was based on the 

government’s representation to the defense. See Ex. 1 at 1. The government’s production only 

includes text messages between the CPI and SA Manera through December 13, 2023. See Ex. 2 

at 39. The final page of the production is cut off, confirming that additional texts were exchanged 

and not produced. See id. The Court should compel the government to produce any subsequent 

communications and, if destroyed, justify such misconduct. 

3

 The Signal messages produced by the government do not clearly designate who wrote the 

message. 

Case 1:22-cr-20340-KMW Document 310 Entered on FLSD Docket 03/13/2024 Page 2 of 6
3

Third, SA Manera declared in her March 12, 2024 affidavit, that “I advised the CPI 

not to contact me on Signal or Whatsapp applications due to cell phone issues in and around 

[October/November 2022].” ECF No. 307-2 at 1. It is not evident from SA Manera’s 

affidavit how this direction was given, but no documentary evidence to support this 

contention has been provided to the defendant. 

What is more likely is that SA Manera instructed the CPI to not contact her on Signal 

or WhatsApp on Monday, September 25, 2023—ten months after the date that she affirmed 

to be true—as follows: “[M]y WhatsApp and Signal are not online due to IT issues. Text is 

best. My apologies if you have sent messages on the other apps.” See Ex. 2 at 1.4 This text 

is strong evidence that there had been such messages in the recent past—or the update would 

be senseless. However, the government has produced no messages (on any platform) 

between the CPI and SA Manera since March 2022. Consistent with this text message, and 

as one would expect, the CPI and SA Manera proceeded to communicate via text message 

from September 25, 2023 through December 13, 2023. See generally, id. 

SA Manera fails to make any representations to the Court regarding efforts to backup her WhatsApp messages with the CPI. Manera does not declare that she provided all 

communications with the CPI to the government’s attorneys prior to the wiping of her phone 

in late-Summer 2023. The reason for this omission is that she actually did communicate with 

the CPI via WhatsApp and text message during this period, and cannot truthfully make such 

affirmation. SA Manera and the CPI exchanged thousands of WhatsApp messages from 

February 2018 to May 2022. The government’s productions reflect a fifteen-month gap in 

4

 The message denotes that it was sent on “Mon, Sep 25.” September 25, 2023 was a 

Monday. See Ex. 2 at 1. September 25, 2022 was a Sunday. Thus, the Court can easily conclude 

that this text message was sent in 2023, not 2022. 

Case 1:22-cr-20340-KMW Document 310 Entered on FLSD Docket 03/13/2024 Page 3 of 6
4

which no messages have been produced. The Court should conclude based on this clear 

circumstantial evidence, and the communications produced to date, that the government 

destroyed communications between its agents and the CPI from May 2022 to October 2022, 

as well as November 2022 to September 2023. 

2. SA Gattorno 

The government produced WhatsApp communications between SA Gattorno and the 

CPI from August 24, 2022 to May 30, 2023. The government has not produced any texts or 

messages between SA Gattorno and the CPI prior to August 24, 2022 and after May 30, 

2023.5 The Court should conclude that the government destroyed communications between 

SA Gattorno and the CPI for the following reasons. 

First, SA Gattorno communicated with the CPI before August 24, 2022 and such 

messages have not been produced. The first produced WhatsApp communication, dated 

August 24, 2022, is sent by SA Gattorno and states, “Testing new phone. Please let me know 

if you receive. Thank you.” See ECF No. 307-1 at 3. The most reasonable interpretation of 

this text message is that SA Gattorno and the CPI had previously exchanged messages. 

Communications from SA Gattorno’s previous cell phone were not produced to the defense. 

Second, SA Gattorno asserted, two months later, that he did not preserve data from 

his old cell phone. SA Gattorno sent a WhatsApp to the CPI, stating: “Please send me your 

gmail address to me [sic], so I can share the folder with you . . . Transferred phones and lost 

the note that had the information.” See ECF No. 307-1 at 10 (emphasis added). Any data 

exchanged between the CPI and SA Gattorno from SA Gattorno’s prior device was not 

produced to the defense. 

5

 SA Gattorno joined the investigation of this case on or about October 1, 2019. 

Case 1:22-cr-20340-KMW Document 310 Entered on FLSD Docket 03/13/2024 Page 4 of 6
5

Third, SA Gattorno communicated with the CPI via WhatsApp after May 2023 and 

such messages have not been produced. On Monday, December 4, 2023 and Tuesday, 

December 5, 2023, the CPI sent SA Manera screenshots of contemporaneous conversations 

he was having with SA Gattorno via WhatsApp. See Ex. 2 at 33-35. These communications 

are material under Giglio and the Jencks Act: the communications relate to SA Gattorno 

assisting the CPI in securing immigration benefits as part of his cooperation agreement. See 

id. The government has not produced the WhatsApp messages between SA Gattorno and the 

CPI in December 2023. The government has failed to produce any WhatsApp 

communications between SA Gattorno and the CPI dated after May 2023 even though such 

communications undeniably exist. 

SA Gattorno makes no representation to the Court regarding his communications with 

the CPI prior to August 2022 and after May 2023. Instead, SA Gattorno merely affirms that 

the government has produced SA Gattorno’s backup of WhatsApp communications dated 

from August 2022 to May 2023. The only explanation with any factual foundation, is that 

SA Gattorno destroyed communications that took place with the CPI before August 2022 and 

after May 2023. 

CONCLUSION 

 For the foregoing reasons, Mr. Kry respectfully moves the Court to dismiss the Indictment 

due to the government’s destruction of material evidence and failure to comply with its discovery 

obligations. In the alternative, due to the egregious nature of the government’s misconduct, 

Mr. Kry asks that the government be sanctioned, and SA Manera and SA Gattorno be barred 

from testifying as trial continues. 

Case 1:22-cr-20340-KMW Document 310 Entered on FLSD Docket 03/13/2024 Page 5 of 6
6

Dated: March 13, 2024 Respectfully submitted, 

 By: Stacey H. Mitchell 

 Stacey H. Mitchell (Pro Hac Vice) 

 Allison T. Coffin (Pro Hac Vice) 

Dakota L. Kann (Pro Hac Vice) 

 Jane M. Mahan (Pro Hac Vice) 

 Nicole L. Franklin (Pro Hac Vice) 

Counsel for Masphal Kry

 Akin Gump Strauss Hauer & Feld LLP 

 2001 K Street NW 

 Washington, DC 20006 

 Telephone: (202) 887-4000 

 Fax: (202) 887-4288 

 E-mail: shmitchell@akingump.com 

 acoffin@akingump.com 

 dkann@akingump.com 

 jmahan@akingump.com 

 Mark J. MacDougall

 Mark J. MacDougall (Pro Hac Vice) 

 Paola Pinto (Fla. Bar No. 1013933) 

 Counsel for Masphal Kry 

 Schertler Onorato Mead & Sears 

 555 13th Street, N.W., Suite 500 West 

 Washington, DC 20004 

 Telephone: (202) 628-4199 

 E-mail: mmacdougall@schertlerlaw.com 

 ppinto@schertlerlaw.com 

 John R. Byrne 

 John R. Byrne (Fla. Bar No. 0126294) 

Counsel for Masphal Kry

 Maderal Byrne & Furst PLLC 

 2800 Ponce de Leon Boulevard, Suite 1100 

 Coral Gables, FL 33134 

 Telephone: (305) 520-5690 

 E-mail: john@maderalbyrne.com 

Case 1:22-cr-20340-KMW Document 310 Entered on FLSD Docket 03/13/2024 Page 6 of 6