Motion to Dismiss for Failure to Provide Indictment In Haec Verba

Francis Williams Montenegro

Attorney for Christopher Rad

1

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA *

*

v. * Crim. No. 11-161

*

CHRISTOPHER RAD *

Defendant, *

MOTION TO DISMISS

FOR FAILURE TO PROVIDE INDICTMENT

IN HAEC VERBA

COMES NOW, Defendant Christopher Rad, by and through his attorney of record, 

Francis W. Williams Montenegro, and moves this court to dismiss the indictment 

against him for the Government’s failure to provide the tenor of the alleged 

instrument(s) in haec verba, in violation of his right to a fair trial, the Fifth 

Amendment to the United States Constitution’s guarantee of due process of law and 

the United States Constitution’s 6

th Amendment right to be informed of the nature 

and cause of the accusation against him as well as to have effective assistance of 

counsel, and in support thereof would show as follows:

I. Defendant Christopher Rad is charged in a 25 page indictment with 

A) Conspiracy to Commit Securities Fraud by 1) use of manipulative devices, 2) 

making untrue statements of material facts and omitting other material facts, and 3) 

acts and practices and courses of conduct which would operate as a fraud; 

B) Materially falsifying header information in multiple electronic messages in 

furtherance of said securities fraud, and 

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Motion to Dismiss for Failure to Provide Indictment In Haec Verba

Francis Williams Montenegro

Attorney for Christopher Rad

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C) Registering, using information that materially falsified the identity of actual 

registrant five or more e-mail accounts, and intentionally initiating the transmission 

of multiple commercial e-mails from any combination of such accounts in 

furtherance of said securities fraud.

II. The allegations in the indictment describe a “pump and dump scheme” and 

accuse Defendant of orchestrating and conspiring to orchestrate a fraud involving 

materially false statements, materially falsifying the header information of 

“spammed” e-mail, and materially falsifying the registration of e-mail accounts. 

The multiple allegations can be summed up as involving deceit and fraud through 

written misrepresentations. 

III. For all the redundant allegations of falsifying or materially falsifying 

information, nowhere in the indictment does the Government provide a single 

document, e-mail, header, or even the tenor of such to state that such-and-such 

document is materially falsified. 

Paragraph 2a on page 3 of the indictment states “Usually the pump involved 

disseminating misleading promotional materials – unsolicited advertisements 

touting a particular stock and encouraging others to purchase the stock – which 

often were sent to millions of recipients by fax or “blasts” of e-mails. The 

indictment does not include even a summary of what those misleading materials 

might be or how they were misleading. It does not include a copy of the 

“advertisements” or of any single one of the emails or faxes attributable to 

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Motion to Dismiss for Failure to Provide Indictment In Haec Verba

Francis Williams Montenegro

Attorney for Christopher Rad

3

Defendant’s responsibility. The allegation of millions of faxes is especially 

interesting both because out of so many faxes it seems that at least one of them 

would have survived to attach to the indictment and well as because Defendant has 

never sent a fax solicitation nor directed anyone else to do so either, yet the 

implication in the indictment is that he must defend himself against millions of sent 

faxes whose content everyone including the Defendant and the jury should only 

imagine.

By failing to lay out the material misrepresentations, the Government has 

failed to provide the Defendant with adequate notice of the exactly what it he is 

supposed to have materially falsified and how. 

The Government’s failure to provide such document(s) in haec verba also 

failed to provide the grand jury with the gravamen of the offenses charged, instead 

confusing them with redundant allegations, many of which are attributed to 

“perpetrators”, unnamed co-conspirators, or even no one at all. The failure to 

provide the allegations of materially falsified text according to its tenor deprives the 

Defendant of the nuanced text which he is alleged to have gotten wrong to the extent 

that it is criminal. The Defendant cannot defend himself against accusations which 

are only oft-repeated legal conclusions but never describe the exact tenor of the 

alleged falsity. For example, Defendant will show that his messages were targeted to 

persons who opted to receive updates concerning the goods about which he provided 

information which was otherwise available to the public but which would require 

knowledgeable or specialized Google queries and assimilation of various facts from 

different resources. For any e-mail that is presented as false, misleading, and 

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Motion to Dismiss for Failure to Provide Indictment In Haec Verba

Francis Williams Montenegro

Attorney for Christopher Rad

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unsolicited, Defendant will show that the email is sent to a person who requested 

such information, that the information sent was timely and accurate, that due 

diligence was performed on his part to assure that such information was accurate 

and included all necessary or desirable disclaimers. But without having the tenor of 

the accusation laid out in the accusation in haec verba, Defendant is left with 

general, conclusory accusations and a defense which can only a general statement of 

what his customary practice was which necessarily is conclusory but would appear 

to be statements made in self-interest. A self-interested defense is perfectly valid, 

but when offered against general, conclusory accusations, it is more likely to be 

viewed with suspicion and result in a conviction although he is entitled to confront 

specific accusations according to their tenor, in haec verba so that he may prepare a 

direct response to a specific accusation and thereby be entitled to a defense.

Finally, the accusations in the indictment when not laid out according to 

their tenor provide the Defendant no protection from the Government against 

future accusations whether in this District or another for similar, ancillary, or even 

identical accusations because the Government can easily claim “This is a completely 

different document from his previous prosecution.” In fact, if Defendant does not 

protect himself by asking for the exact document in haec verba which he is alleged to 

have falsified, he not only makes a conviction on vague accusations more likely, but 

he is responsible for not having delineated the jeopardy which he previously 

defended. Defendant would like to think that the Government would not go so far 

as to spend enormous amounts of money to prosecute similar or even identical 

accusations in a second jeopardy, but the fact is, and it can be shown at pre-trial 

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Motion to Dismiss for Failure to Provide Indictment In Haec Verba

Francis Williams Montenegro

Attorney for Christopher Rad

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and at the jury trial, that despite the horrible accusations in the indictment (the 

most horrible of which are oddly enough attributed to NO ONE, “perpetrators”), 

the case against Defendant boils down to an extraordinarily technical violation -

different FROM names which may or may not have been sent by someone else. The 

use of different names may not actually be a 18 USC §1037 violation, 

notwithstanding that CAN-SPAM with its civil remedies defines “header 

information” as liberally as anything “purporting to identify” a sender. 18 USC 

§1037 provides a different standard focused on the materiality of the falsification. 

Materiality analysis requires a study of the words, word for word and then an 

analytical comparison with the end of determining whether the nuanced difference 

moves from the protected free speech realm all the way to the criminal realm, and 

that analysis cannot be done when the corpus delecti, which exists in material text is 

not provided to the grand jury as well as the Defendant so that he may prepare an 

adequate defense to that “word intensive” corpus delecti. For that reason, cases 

involving exact words have always required an allegation in haec verba in cases 

such as forgery, anonoymous letters, instruments of theft or deceit, and threats. 

Speaking so as distinguish instances in which the very indecency of the words justify 

not following that rule, the U.S. Supreme Court held in Bartell v. United States

“While it is true that ordinarily a document or writing essential to the charge of 

crime must sufficiently described to make known its contents or the substance 

thereof, there is a well-recognized exception. 227 U.S. 427, 33 S.Ct 383, 57 L.Ed. 583 

(1913). Justice Day goes on to quote Justice Harlan in Rosen v. United States, 161 

U.S. 29, at p. 40, 40 L ed. 606, 16 Sup. Ct. Rep. 434, 480, 10 Am. Crim. Rep. 251. 

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Motion to Dismiss for Failure to Provide Indictment In Haec Verba

Francis Williams Montenegro

Attorney for Christopher Rad

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“in such case, the accused may apply to the court before the trial is entered upon for 

a bill of particulars, showing what parts of the paper would be relied on by the 

prosecution as being obscene, lewd, and lascivious...” So even for the well-known 

exception to the 6th Amendment right to have the words attached the indictment in 

haec verba ̧ the Defendant would still have the right to those exact words relied upon 

by the Government so that he may mount the defense which the 6th Amendment 

allows him. The least the Government should do is provide the exact tenor of the 

material falsifications in haec verba, unless the Government believes the words to be 

obscene, lewd, or lascivious. Bartell’s point of error was “That the facts stated in 

said indictment are not sufficient to and do not constitute a crime.”

IV. Finally, at the Arraignment, pursuant to Your Honor’s questioning, the 

Government claimed venue in the District of New Jersey because someone in New 

Jersey received an e-mail promoting the subject stock which was allegedly 

materially falsified. In all fairness, the Government also alleged that a brokerage 

firm that was hacked or had processed transactions was also located in New Jersey.

The very first document attached to the indictment should lay out all the applicable 

allegations of alleged illegality, including the alleged misleading statements in the email, the alleged falsified header, the alleged false routing information, the alleged 

illicit proxy information, and/or, the name and location of the New Jersey recipient 

of such information.

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Motion to Dismiss for Failure to Provide Indictment In Haec Verba

Francis Williams Montenegro

Attorney for Christopher Rad

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WHEREFORE PREMISES CONSIDERED, Defendant prays that the Indictment 

be dismissed and that the Government be ordered to provide the alleged words 

alleged to be materially falsified in haec verba.

Respectfully submitted,

Francis Williams Montenegro

Attorney at Law

1604 San Antonio St.

Austin, TX 78701

Tel. 512-476-1212

Fax. 512-476-3178

Attorney for Defendant 

Christopher Rad

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Motion to Dismiss for Failure to Provide Indictment In Haec Verba

Francis Williams Montenegro

Attorney for Christopher Rad

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CERTIFICATE OF SERVICE

A true and correct copy of the above and foregoing Notice of Appearance of 

Francis Williams Montenegro Attorney for Christopher Rad is this 28th day of July 

2012 served on Christopher Kelly, Assistant United States District Attorney.

Francis W. Williams Montenegro

Attorney for Defendant 

Christopher Rad

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