EXHIBIT A

Case 1:22-cr-20340-KMW Document 163-1 Entered on FLSD Docket 08/14/2023 Page 1 of 6
MARK J. MACDOUGALL

+1 202.887.4510/fax: +1 202.887.4288

mmacdougall@akingump.com

Robert S. Strauss Tower | 2001 K Street, N.W. | Washington, DC 20006-1037 | 202.887.4000 | fax 202.887.4288 | akingump.com

CONFIDENTIAL

August 2, 2023

Vaughn A. Ary

Director, Office of International Affairs

U.S. Department of Justice

Criminal Division

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Re: Covert Extraterritorial United States Fish and Wildlife Service Investigation:

United States v. Masphal Kry, Case No. 1:22-cr-20340-KMW

Dear General Ary:

Our client, Mr. Masphal Kry, is a Cambodian national and Director of the Department of

Wildlife and Biodiversity within the Ministry of Agriculture, Forestry and Fisheries of the Royal

Government of Cambodia. Mr. Kry was named in a superseding indictment (the “Indictment”) in

the above-captioned case on November 3, 2022. The Indictment was unsealed on November 16,

2022, after Mr. Kry was arrested at JFK Airport in New York. See Exhibit A, Indictment.

The Indictment alleges that between December 19, 2017 and January 30, 2022 Mr. Kry,

seven codefendants—one of whom is another Cambodian government official—and two

unindicted U.S. companies: (i) conspired to import and smuggle wild-caught long-tailed macaques

(Macaca fascicularis) from Cambodia into the United States in violation of the Lacey Act, and (ii)

imported wild-caught macaques into the United States through the presentation of false and

fraudulent CITES Permits and FWS Form 3-177s. To be clear, Mr. Kry’s involvement in the

alleged conspiracy is limited to the assertion that he delivered 92 macaques to a CITES-approved

breeding farm in Cambodia (consistent with instructions given to him by the Ministry of

Agriculture, Forestry and Fisheries) and that farm later reclassified the macaques as captive-bred

and exported them to the United States.

In the course of conducting our own investigation since our client was arrested, we have

learned that U.S. Fish and Wildlife Service (“USFWS”) agents executed an unlawful covert

investigation in Cambodia, without the knowledge of law enforcement agencies in Cambodia and

with the obvious aim of prosecuting Cambodian government officials. In response to our initial

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Vaughn A. Ary

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inquiry, the Assistant U.S. Attorney overseeing this case1refused to confirm whether he and the

USFWS agents acting at his direction complied with the applicable Department of Justice policies

concerning international criminal investigations. Our several inquiries to the leadership of the U.S.

Attorney’s Office in Miami have likewise failed to yield a productive response – other than the

general suggestion that proper procedures were followed – although we understand that they have

been in contact with Jeffrey Olson of your Office since our initial inquiry.

The evidence that we have examined confirms that the USFWS, under the direction of an

Assistant U.S. Attorney in Miami, conducted a multi-year intelligence gathering scheme inside the

Kingdom of Cambodia without the consent or knowledge of that nation’s government. This

USFWS operation included the use of at least one paid Chinese-national as an undercover

operative to conduct secret electronic surveillance of multiple Cambodian government officials –

including our client – in clear violation of Cambodian law. To date, despite our repeated inquiries,

we have seen nothing to indicate that the prosecutor in Miami or his agents acted with the approval

or under the direction of the Office of International Affairs. Rather, all of the circumstances

suggest that these USFWS agents, without authorization, were engaged in a program of espionage

against a foreign government with which the United States maintains open and cooperative

relations.

We believe this serious misconduct has permeated the U.S. Attorney’s Office in Miami

and USFWS’s investigation of this case, and we respectfully request that an investigation be

initiated and appropriate action taken to include a motion to dismiss the Indictment.

1. USFWS Agents Conducted an Illegal Covert Investigation in Cambodia.

The criminal investigation in this case was initiated by the USFWS and is internally

referred to as “Operation Longtail Liberation.” This operation was not conducted with the consent

or knowledge of the Ministry of Justice of Cambodia or any other responsible element of that

government. The evidence in this case clearly establishes that, from 2018 through 2022, agents of

the USFWS engaged a paid operative (and a Chinese national) in Cambodia to conduct a

sophisticated undercover investigation.

That covert investigation involved the paid operative making secret video recordings of

subjects of the investigation, including Cambodian government officials, at the direction of

USFWS agents and in direct violation of Cambodian law. The USFWS covert operative also stole

commercial records of a regulated entity within the Kingdom of Cambodia – and delivered these

stolen records to the USFWS agents who directed his activities. This troubling conduct suggests

1 Assistant United States Attorney Thomas Watts-Fitzgerald, Southern District of Florida.

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that lawyers for the United States government (a) presented stolen and otherwise illegally-obtained

evidence to a grand jury, (b) caused to be issued an indictment that relied upon illegally-obtained

evidence, and (c) engaged in a series of activities that raise grave questions regarding the integrity

of the criminal investigation that led to the Indictment of Mr. Kry.2

The U.S. Attorney’s Office in Miami has confirmed that the Cambodian Ministry of Justice

was never informed of this covert investigation throughout the nearly five-year period during

which this operation was ongoing. Cambodian law prohibits the recording and surveillance of

Cambodian citizens on private property3 – and likewise punishes secret foreign espionage by

foreign agents (as does the United States and every other sovereign state). The espionage activities

undertaken by the USFWS agents and their paid Chinese informant on private property resulted in

clear violations of Cambodian law.

2. The Government Attorney and Prosecuting Agents Were Required to Engage OIA.

Section 9-13.500 of the Justice Manual requires DOJ attorneys and investigating agents to

obtain approval from the Office of International Affairs (“OIA”) before attempting any unilateral

investigative act outside the United States relating to a “criminal investigation or prosecution,

including contacting a witness by telephone or mail.” Section 9-13.510 of the Justice Manual

further instructs that OIA should be contacted as soon as investigating agents become aware that

they may need to acquire evidence in another country.

Mr. Kry’s counsel have specifically asked the government lawyers in this case to produce

records indicating that USFWS agents followed Department of Justice policy and obtained

authorization from OIA prior to (i) commencing their foreign intelligence-gathering operation in

Cambodia, (ii) engaging a paid informant to act as their agent outside the United States, (iii)

2 This conduct runs afoul of the government lawyer’s ethical obligations, which prevent

him from obtaining and relying upon illegally-obtained evidence. See ABA Ethics R. 3-1.2(b)

(“The primary duty of the prosecutor is to seek justice within the bounds of the law”); id. at 3-

3.4(d) (“The prosecutor should . . . not use methods of obtaining evidence that violate legal

rights”).

3 Article 301 of the Kingdom of Cambodia Criminal Code provides that intercepting or

recording words uttered in private circumstances without the consent of the person concerned,

except where authorized by law, is punishable by imprisonment of one month to one year and a

fine of one hundred thousand to two million Riels. Article 302 of the Kingdom of Cambodia

Criminal Code provides that recording the image of a person who is in a private place, without

their consent, except where authorized by law, is punishable by imprisonment of one month to one

year and a fine of one hundred thousand to two million Riels.

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secretly recording Cambodian government officials, and (iv) collecting evidence for a U.S.

criminal case in Cambodia without the knowledge or consent of Cambodian law enforcement

officials. Despite these facts, the lawyer for the government has consistently refused to provide

documentation of any such authorization or requests for authorization. See Exhibit B, May 8, 2023

Email.

We are prepared to submit dispositive documentation to support each of the assertions of

fact conveyed in this letter. We believe that the Indictment of our client was returned by the grand

jury in reliance on evidence developed by unlawful means and in direct contravention of

Department of Justice policy and international convention. We would respectfully request that

this situation be given immediate attention and appropriate action be taken to include a motion to

dismiss the Indictment in this case as it relates to Mr. Kry.

Sincerely,

Mark J. MacDougall

Stacey H. Mitchell

Enclosures

Exhibit A, Indictment in United States v. Masphal Kry, Case No. 1:22-cr-20340-KMW.

Exhibit B, May 8, 2023 Email from AUSA T. Watts FitzGerald.

cc: Bruce C. Swartz

Deputy Assistant Attorney General

and Counselor for International Affairs

U.S. Department of Justice

Criminal Division

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

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Markenzy Lapointe

United States Attorney

United States Attorney’s Office

for the Southern District of Florida

99 N.E. 4th Street

Miami, FL 33132

Todd Kim

Assistant Attorney General

Environment and Natural Resources Division

Robert F. Kennedy Department of Justice Building

950 Pennsylvania Avenue NW

Washington, D.C 20530-0001

Deborah L. Harris

Chief, Environmental Crimes Section

Environment and Natural Resources Division

U.S. Department of Justice

4 Constitution Square

150 M St., N.E.

Washington, D.C. 20530

John Byrne

Maderal Byrne & Furst PLLC

2800 Ponce de Leon

Suite 1100

Coral Gables, FL 33134

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