UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA

 v.

CHRISTOPHER RAD

:

: Hon. Joel A. Pisano, U.S.D.J.

:

:

: Crim. No. 11-161

:

:

:

_________________________________________________________________

UNITED STATES’ OPPOSITION TO DEFENDANT’S MOTION 

TO DISMISS THE INDICTMENT

_________________________________________________________________

Paul J. Fishman

United States Attorney

970 Broad Street; Suite 700

Newark, New Jersey 07102

(973) 645-2700

On the brief:

EREZ LIEBERMANN

ANDREW PAK

Assistant U.S. Attorneys

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TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

POINT I: THE INDICTMENT AND DISCOVERY PROVIDE AMPLE 

NOTICE OF THE CHARGED OFFENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

POINT II :DEFENDANT’S VOID FOR VAGUENESS MOTION IS SIMPLY A

REHASHING OF THE IN HAEC VERBA ARGUMENT. . . . . . . . . . . . . . . . . . 11

POINT III: SECTION 1037(a)(3) IS NOT OVERLY BROAD AND DOES NOT

RUN AFOUL OF DEFENDANT’S FIRST AMENDMENT RIGHT TO FREE

SPEECH.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

POINT IV: SECTION 1037 DOES NOT RUN AFOUL OF DEFENDANT’S

FIRST AMENDMENT RIGHT TO FREEDOM OF THE PRESS.. . . . . . . . . . . 16

POINT V: DEFENDANT’S AMENDED MOTION TO SUPPRESS EVIDENCE

SHOULD BE DENIED BECAUSE HE DID NOT MEET HIS INITIAL

BURDEN OF SETTING FORTH A COLORABLE CLAIM FOR RELIEF. . . . 18

POINT VI: DEFENDANT’S MOTION FOR AN ORDER REQUIRING THE

PRODUCTION OF BRADY EVIDENCE IS MOOT. . . . . . . . . . . . . . . . . . . . . . 19

POINT VII: DEFENDANT HAS FAILED TO MEET HIS BURDEN OF

DEMONSTRATING EXCEPTIONAL CIRCUMSTANCES FOR A RULE 15

DEPOSITION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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INTRODUCTION

Christopher Rad received over $2,000,000 in less than two years for his services in

purported stock awareness campaigns. Except, defendant Rad provided no services of his own. 

He was a middle man that connected stock promoters with spammers and hackers located

overseas. To effectuate his pump and dump scheme, he and his co-conspirators created false

disclaimers in e-mails, engaged in manipulative stock trading, and entered into sham consulting

agreements. Overseas, his coconspirators used computers infected with a virus as part of a botnet

and used other illegal techniques to distribute spam. When one coconspirator told him about the

botnets, he literally told him to stop telling him about it, and kept working with him. 

Where law abiding citizens would turn away, defendant Rad kept going. When he

learned that one of the spammers did not follow the law, he kept using him. When he learned

that another spammer used botnets, he kept using him. When a spammer asked him to note on

the wire transfer that the money was for “Dell monitors,” he kept using him. When a spammer

asked to be paid via third party countries, he kept using him. Nothing phased defendant Rad in

his pursuit of money. He felt that as long as he told people to follow the law, he was safe. But

defendant Rad’s repeated lip service to following the law was betrayed by his actions to the

contrary. 

Defendant Rad filed seven motions. In support of these seven motions, which include

requests to dismiss the indictment and suppress all the evidence, defendant Rad has cited a total

of twelve cases, all but one of which are Supreme Court cases which provide general principles,

but none of which contain analogous facts. He has not cited a single case from the Third Circuit

or any other district or circuit court. Nor could he, as there is no support in the law for

1

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defendant’s motions. Defendant Rad’s motion to suppress the search warrant results, for

example, is a boilerplate motion that contains not one cite. Nor does it mention what, if any,

alleged infirmity the warrant contained, be it probable cause, particularity, or overbreadth. The

void for vagueness motion likewise contains no cites and does not even attack the statute as

vague, a critical omission in a void for vagueness motion. Instead, defendant Rad uses his void

for vagueness motion to ask for an order of proof regarding numerous allegations in the

Indictment. The boilerplate Brady motion was not even updated to refer to the District of New

Jersey, as it asks that attorneys for the State of Texas turn over evidence in Texas’s custody. 

Defendant’s additional motions are equally baseless, and should be denied.

2

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STATEMENT OF FACTS

In 2007, defendant Rad was approached by several stock promoters to assist in”stock

awareness campaigns.” The stock promoters, including coconspirator D.E., sought defendant

Rad’s assistance in procuring the services of “mailers” to distribute news, new or old, about a

particular stock. The Superseding Indictment contains nine counts alleging that together with the

promoters and mailers, defendant Rad engaged in securities fraud, sent spam by using false

names and registration information, and sent spam through the unauthorized use of hijacked third

party computers as part of a “botnet.”

Stock Promotions

The promoters were typically hired by companies whose shares were traded over the

counter. The companies sought the promoters, such as D.E., as a means of raising capital. In

reality, the promoters were engaged in pump and dump schemes. The promoters were typically

paid by the companies in advance with restricted shares of the company’s stock. That is, the

shares could not be freely traded. 

D.E. and other promoters sought to effectuate the pump in the value of the stock in

numerous ways, including purported e-mail “awareness” campaigns. Through various

connections in the industry, defendant Rad connected with D.E. and others and entered into deals

whereby he would arrange the e-mail campaigns. Defendant Rad was paid in cash and through

shares of the stock to be promoted. 

To transfer shares of restricted stock to defendant Rad, D.E. made misrepresentations to

lawyers so he could secure letters which converted restricted shares to free-trading shares. D.E.

also entered into sham “consulting” contracts with Rad designed to persuade brokerage houses to

3

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transfer the shares. Rad never provided any consulting services, as he admitted in one of three

interviews with the FBI. 

Mailers

Defendant Rad did not generate the e-mail campaigns on his own. Instead, he hired

“mailers” that he found online. To communicate with the mailers, Rad often used a messaging

service known as Skype. Hundreds of pages of Skype chats were found during searches in the

FBI’s investigation. The Skype chats reveal that Rad found the mailers, paid them, and gave

them “news” to put into the mailings. The purported news was not always new “news.” Instead,

Rad often regurgitated old articles, under the guise that even information the market already

absorbed could generate interest in a company. 

In chatting with the mailers, defendant Rad invariably asked if they complied with the

CAN-SPAM laws and had lists of people who actually wanted spam e-mail. Rad’s statements

about CAN-SPAM, however, were hollow. He knew that the mailers did not comply with CANSPAM, and simply chose to pretend otherwise. He also never stopped dealing with a mailer that

was not compliant, he simply offered an empty promise to help the mailer become compliant.

Rad paid his mailers by means consistent with the dark alley transactions he was

undertaking. One mailer, D.S., was paid through wires sent to third party countries, including

Canada, Poland, New Zealand, British Virgin Islands, Spain, United Kingdom, Cyprus, and

Seychelles. In the comments section explaining the purpose of the wires, Rad provided false

statements, never indicating that the payment was for stock promotion or mailings. Additionally,

Rad often had to change his methods of paying the same mailer, using wires, digital currency,

and third-party payors.

4

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To generate widespread mailings and avoid spam filters established by the e-mail

providers, the mailers had to use sophisticated techniques. One of Rad’s mailers employed a

botnet, which is a collection of computers infected with a virus and controlled by the “bot

herder.” Rad knew that D.S. used a botnet to distribute his spam. An additional technique for

avoiding spam filters was the use of false names, email addresses and e-mail addressing

information. Rad’s mailers used each of these techniques and Rad received samples of the emails. Indeed, Rad sometimes inquired about the type of mailings and how they would get to

inboxes. 

Manipulative trading

Mailings that relied on old news, no matter how widely distributed, were insufficient to

pump up the value of the stock. Defendant Rad therefore had to work with the promoters and

mailers to create extra incentive for the recipients of the spam to trade. Rad, D.E., and others

engaged in manipulative stock trading designed to create the impression that there was interest in

the stock being promoted. Defendant Rad also made false representations in the disclosures

found at the bottom of the mailings, misrepresenting the amount of money he was making and

the amount of shares he would dump when the stock value was pumped up. 

The FBI’s Investigation

In 2007, the FBI learned that trades going through Knight Securities, located in New

Jersey, and at accounts maintained at broker-dealers were breached by hackers. The hackers

subsequently liquidated the shares in the account and used the money in the account to buy

shares of stocks that were in the midst of pump and dump schemes. By refraining from taking

the money directly out the account, the hackers were avoiding a money trail. One such hacker

5

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was D.S., whose contributions to the pump and dump schemes also included sending spam

through botnets.

The investigation revealed that on 22 different occasions, relating to 22 account

intrusions, and 22 pump and dump schemes, Rad paid D.S. tens of thousands of dollars the day

after the account intrusions occurred. 

Searches

Searches of e-mail accounts and review of subpoenaed bank account records led the

investigation to D.E., defendant Rad, and others. In February 2009, pursuant to search warrants

authorized by Magistrate Judges in the respective districts, the FBI conducted simultaneous

searches in Florida, Texas and California, including Rad’s home and business in Texas. The

results revealed the Skype chats discussed above and numerous other records.

Interviews

During the search of his residence, defendant Rad agreed to talk with the FBI agents

without counsel present. He was not in a custodial situation at the time. Subsequently,

defendant Rad traveled to the U.S. Attorney’s office to conduct to interviews with the FBI, SEC

and U.S. Attorney’s office. He was represented by counsel at both interviews. No proffer letter

was offered or requested.

The Indictment and Discovery

Defendant Christopher Rad was charged by Indictment on March 17, 2011, and a

Superseding Indictment on January 12, 2012. The 25-page detailed Superseding Indictment lays

out the specific manner and means employed by the conspirators to perpetrate the charged

conspiracy, commit securities fraud, and distribute spam through false registration information

6

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and botnets. The indictment includes two conspiracy counts and seven substantive counts. 

Defendant Rad is identified as a middle-man, connecting the stock promoters with skilled

hackers and spammers. 

Since the date of the Indictment, the Government has disclosed 5,680 pages of batesmarked documents. In addition, defendant has requested and received copies of the contents of

an additional 15 CDs, one DVD, and over 4 terabytes of data. The discovery includes memos

summarizing defendant’s voluntary statements to law enforcement; bank and brokerage records;

internet chat conversations between defendant and others; e-mail accounts of defendant and

others; defendant’s own work files from his computer; e-mails collected by the Federal Trade

Commission regarding spam; and other Rule 16 discoverable material.

7

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ARGUMENT

POINT I

THE INDICTMENT AND DISCOVERY PROVIDE AMPLE 

NOTICE OF THE CHARGED OFFENSES

Defendant argues that the Government did not provide the indictment in haec verba.

1

Under Rule 7(f) of the Federal Rules of Criminal Procedure, “the court may direct the

government to file a bill of particulars.” The Rule further specifies that “[t]he defendant may

move for a bill of particulars before or within 10 days after arraignment or at a later time if the

court permits.” Here, a motion for a bill of particulars was not filed “before or within 10 days

after arraignment.” Instead, months after the Superseding Indictment, which used much of the

language from the initial Indictment, defendant made his motion, which essentially seeks an

order of proofs from the Government. 

In United States v. Urban, the Third Circuit explained: 

The purpose of the bill of particulars is to inform the defendant of the nature of

the charges brought against him, to adequately prepare his defense, to avoid

surprise during the trial and to protect him against a second prosecution for an

inadequately described offense. Only where an indictment fails to perform these

functions, and thereby “significantly impairs the defendant's ability to prepare his

defense or is likely to lead to prejudicial surprise at trial[,]” will we find that a

bill of particulars should have been issued.”

404 F.3d 754, 771-72 (3d Cir. 2005) (citations omitted) (emphasis added). Here, the

Superseding Indictment provides details not only about the time of the alleged conspiracy, but

also of the particular individuals and stocks involved in the conspiracy. Defendant is on notice

While defendant did not identify his motion as one for a bill or particulars, both Bartell 1

v. United States, 227 U.S. 427 (1913) and Rosen v. United States, 161 U.S. 29 (1896), cited by

defendant, are cases in which the Court discusses the issue as one for a bill of particulars.

8

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that the conspiracy relates to his interaction with these individuals during certain dates. 

Specifically, the Superseding Indictment is clear that the charged conduct relates to any pump

and dump schemes carried out through spam campaigns from 2007 through 2009. These facts

alone provide defendant with a clear delineation of the time frame, coconspirators and stocks

involved in the conspiracy and remove any possibility of a second prosecution for an

inadequately described offense.

The Government need not rely on the Superseding Indictment alone to fully apprise

defendant of the charges against him, permit an adequate defense, and avoid the prospect of

future prosecutions. Extensive discovery is an additional avenue by which the Government may

satisfy its obligations of particularity. See Urban, 754 F.3d at 772 (finding that extent of

discovery weakens case for bill of particulars) (citing United States v. Giese, 597 F.2d 1170,

1180 (9th Cir.1979) (“Full discovery . . . obviates the need for a bill of particulars.”)); United

States v. Glecier, 923 F.2d 496 (7 Cir. 1991). For this reason, motions for a bill of particular are th

appropriate immediately after the indictment, when no discovery can aid a defendant.

In the present case, defendant has received full discovery, including copies of spam email collected by the FTC, copies of internet chats which further included verbatim language

included in spam e-mails, copies of e-mails sent to defendant; and 5,680 pages of additional

bates-stamped discovery. Considering the detailed allegations set forth in the Superseding

Indictment and the extent of discovery, a bill of particulars is not necessary to apprise defendant

of the nature of the charges or avoid the possibility of a second prosecution. Nor is a bill of

particulars necessary to address defendant’s argument that more details are necessary about

venue. The Superseding Indictment contains allegations of conduct in New Jersey, and the

9

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Government has produced discovery relating to New Jersey. 

Defendant relies on Bartell v. United States, 227 U.S. 427 (1913) and Rosen v. United

States, 161 U.S. 29 (1896) for the proposition that the exact words of a fraud must be provided. 

However, neither of these cases stands for the cited proposition, as the cases merely speak to the

proposition that in cases of obscenity, exact words are not required. Nor has defendant cited a

case from the last 99 years that addresses this issue. Instead, defendant spends seven pages

quoting from the indictment and alleging that the exact words of the fraud must be copied. 

In United States v. Moyer, the defendant was accused of false statements. The defendant

moved for a bill of particulars and was denied. The Third Circuit affirmed the denial and

explained that the Government need not identify in the pre-trial phase each “omission or

inclusion that rendered false the documents . . .” 674 F.3d 192, 203 (2012). The court stated that

a bill of particulars was needed when an indictment merely quoted the language of a statute, not

where additional facts are provided. Id. The court went on to quote United States v. Addonzio: 

“‘[A]t the pre-trial stage, [the Government is not required to] weave the information at its

command into the wrap of a fully integrated trial theory for the benefit of the defendant.’” Id.,

citing Addonzio, 451 F.2d 49, 64 (3d Cir. 1971).

Consistent with Moyer, the Government has far exceeded the requirements for a bill of

particulars, both with the very much “speaking” Superseding Indictment and the extensive

discovery. The Government respectfully submits that no additional information is required and

defendant’s motion for a bill of particulars should be denied.

10

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POINT II

DEFENDANT’S VOID FOR VAGUENESS MOTION IS SIMPLY A 

REHASHING OF THE IN HAEC VERBA ARGUMENT

Defendant moves to dismiss the indictment under the void for vagueness doctrine. 

However, defendant’s void for vagueness motion is simply a request for more particular facts,

not a void for vagueness challenge to a statute. Defendant cites no law in his void for vagueness

motion, presumably because he has misapplied the legal provisions for his challenge.

A void for vagueness argument can be made against statutes which are unconstitutionally

vague. In criminal matters, such challenges must be “as applied”. United States v. Mazurie, 419

U.S. 544, 550 (1975). In the only published decision on the matter, the District Court for the

Southern District of California found that Title 18, United States Code, Sections 1037(a)(3) and

(a)(4) were not void for vagueness. 475 F.Supp. 2d 1019, 1023 (S.D. Cal. 2007). 

However, defendant’s void for vagueness motion does not attack the statute. Instead,

defendant argues that the Superseding Indictment is vague in that many statements within the

Superseding Indictment can be interpreted in different ways. Defendant spends pages 2 through

6 of his motion arguing that statements in paragraphs 1-3of the Superseding Indictment, the

“Background” section, are vague. He then attacks other statements as either vague, false, or

lacking proof. For example, in paragraph S of his motion, defendant quotes paragraph 28c of the

Superseding Indictment, which states: “[the e-mail] falsely claimed that defendant Rad was

being paid 1,500,000 shares of stock of Company #1 for ‘corporate finance’ consulting services.” 

Defendant attacks this statement because the “indictment should state how the claim is false.” 

Not only is this not a void for vagueness challenge, it is also not a legitimate request for a bill of

11

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particulars. Instead, defendant is seeking the Government’s order of proofs. In support of his

requests, defendant has not cited a single case. As explained with respect to defendant’s motion

for a bill of particulars, the Government has satisfied its pleading requirements and need not lay

out a full order of proofs in advance of trial.

12

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POINT III

SECTION 1037(a)(3) IS NOT OVERLY BROAD AND DOES NOT RUN AFOUL OF

DEFENDANT’S FIRST AMENDMENT RIGHT TO FREE SPEECH

Defendant moves to dismiss the indictment under the overbreadth doctrine, arguing that

Title 18, United States Code, Section 1037(a)(3) violates his free speech rights under the First

Amendment of the United States Constitution. Although styled as a motion to dismiss the

indictment, the defendant’s motion focuses exclusively on Section 1037(a)(3), which is relevant

to only a portion of Count One of the Superseding Indictment. Count One alleges a conspiracy

to commit three types of offenses against the United States: (a) securities fraud contrary to Title

15, United States Code, Sections 78j(b) and 78ff; (b) illegal spamming contrary to Title 18,

United States Code, Section 1037(a)(3); and (c) illegal spamming contrary to Title 18, United

States Code, Section 1037(a)(4). Defendant’s motion focuses only on the criminal objective

described in paragraph 4(b) of the Superseding Indictment. Nevertheless, Section 1037(a)(3)

does not run afoul of defendant’s First Amendment rights. 

Defendant Rad claims that Section 1037(a)(3) is overly broad because it “punishes any

email transmission because it is at least IN interstate commerce by virtue of being on the

internet.” Def. Mtn at 3. However, reference to Section 1037(a)(3)'s statutory language clearly

undermines Defendant's assertion. As set forth in his own papers, Section 1037(a)(3) applies

only where: (1) header information is materially falsified; (2) the material falsification applies to

multiple email messages; (3) the email messages are commercial in nature; and (4) their

transmission is intentionally initiated. 

As support for his assertion that Section 1037(a)(3) violates the First Amendment,

13

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defendant Rad relies on the Virginia State Supreme Court opinion of Jaynes v. Commonwealth,

666 S.E.2d 303 (Va. 2008). However, in Jaynes, the statute at issue was a Virginia State statute

that the Jaynes court itself found to be distinguishable from the CAN-SPAM Act. Jaynes, 666

S.E.2d at 313 (striking down the Virginia statute criminalizing all unsolicited bulk email,

including email containing political speech, while distinguishing the Virginia statute from the

CAN-SPAM Act which focused on commercial bulk email). Indeed, the Jaynes court premised 2

its holding on the fact that the Virginia statute was overly broad because it was “not limited to

instances of commercial or fraudulent transmission of e-mail” and that the Virginia statute's

broad language did not lend itself to a narrowing construction making it applicable only to

commercial email, email involving criminal activity, defamation, or obscene material. Id. at

313-14.

Indeed, an overbreadth analysis is not even applicable here because the “overbreadth

doctrine does not apply to commercial speech.” Hoffman Estates v. Flipside, Hoffman Estates,

455 U.S. 489, 497 (1982) (citing Cent. Hudson Gas & Elec. Corp. v. Public Service Comm'n,

447 U.S. 557, 565 n.8 (1980)); see also Pitt News v. Fisher, 215 F.3d 354 (3d Cir. 2000)

(recognizing the “limitation of an overbreadth challenge in the commercial context”); see, e.g.,

United States v. Simpson, Crim., 2011 U.S. Dist. LEXIS 76881, at *77-82 (July 15, 2011)

(declining to apply the overbreadth doctrine to companion sections to Section 1037(a)(3));

United States v. Smallwood, Crim., 2011 U.S. Dist. LEXIS 76880, at *73-77 (July 15, 2011)

(same).

Although the Jaynes court cited the act’s civil provisions, Section 1037(a)(3) like its 2

civil counterpart applies only to commercial emails, as indicated in the text of the statute.

14

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Finally, Defendant appears to argue that Section 1037(a)(3) does not survive the

balancing test set forth in Cent. Hudson Gas & Elec. (Free Speech Motion at 4.) However, the

Supreme Court in Cent. Hudson Gas & Elec. held that a First Amendment balancing inquiry only

applies where the commercial speech in question concerns lawful activity that is not misleading. 

See Cent. Hudson Gas & Elec., 447 U.S. at 566 (“For commercial speech to come within [the

First Amendment], it at least must concern lawful activity and not be misleading.”). Here, not

only does the Superseding Indictment allege that the content of the spam sent by defendant Rad

is misleading and was used to promote an unlawful “pump and dump” scheme, but the statute

itself only applies to commercial bulk emails with headers that are falsified to make them

materially misleading to the recipient.

15

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POINT IV

SECTION 1037 DOES NOT RUN AFOUL OF DEFENDANT’S 

FIRST AMENDMENT RIGHT TO FREEDOM OF THE PRESS

Defendant argues that Title 18, United States Code, Section 1037 violates the United

States Constitution’s guarantee of the freedom of the press. See Defendant's Motion to Dismiss

Freedom of the Press (“Free Press Motion”). Defendant does not specify which counts he is

challenging, but appears to be challenging all of the counts premised on any subsection of Title

18, United States Code, Section 1037. 

Defendant Rad grounds his argument in a line of cases that are wholly inapposite. The

cases cited in the Free Press Motion all involve prior restraints on speech of a commercial nature

regardless of whether that speech is truthful or misleading. See Lowell v. City of Griffin, 303

U.S. 444, 450-51 (1938) (a complete ban on the distribution of any literature without a license);

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 749

(1976) (a complete ban on any advertisement in any manner by a licensed pharmacist); Bates v.

State Bar of Ariz., 433 U.S. 350, 355 (1977) (a complete ban on advertisement of legal services);

Cent. Hudson Gas & Elec., 447 U.S. at 558 (a complete ban on all promotional advertising by an

electrical utility); Lowe v. SEC, 47 U.S. 181, 183 (1985) (a permanent injunction preventing the

publication of any “nonpersonalized investment advice and commentary in securities newsletters

because they are not registered as investment advisers under ... the Investment Advisers Act of

1940”).

However, here there is no prior restraint on speech, and indeed there is no ban on

anyone’s ability to disseminate commercial speech. Section 1037 does not ban the content of any

16

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commercial messages but requires that the sender not mislead the recipient as to the source of the

message. In other words, Section 1037 compels disclosure of accurate information regarding the

source of commercial email messages, and does not punish the dissemination of such messages

when the disclosure is properly made. Unlike “[r]egulations on nonmisleading commercial

speech [which] triggers [a] form of intermediate scrutiny .... Disclosure requirements for

commercial speech trigger a rational basis test.” United States v. Marzzarella, 614 F.3d 85, 96

(3d Cir. 2010) (citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471

U.S. 626, 651 (1985)); see United States v. Bell, 414 F.3d 474, 484-85 (3d Cir. 2005) (“In a

commercial setting, the government may impose reasonable regulations on content to prevent

deception of customers”). Here, Section 1037 applies only to commercial email messages, and

only where the recipient is materially misled as to the source of the message.

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POINT V

DEFENDANT’S AMENDED MOTION TO SUPPRESS EVIDENCE SHOULD BE

DENIED BECAUSE HE DID NOT MEET HIS INITIAL BURDEN OF SETTING

FORTH A COLORABLE CLAIM FOR RELIEF

A defendant seeking to suppress evidence bears the initial burden of proof to establish a

basis for his claim. United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995). Further, a

“defendant's moving papers must demonstrate a 'colorable claim' for relief .... [and] [i]n order to

be 'colorable,' a defendant's motion must consist of more than mere bald-faced allegations of

misconduct.” United States v. Cummings, 156 Fed. Appx. 438, 444 (3d Cir. 2005).

Here, Defendant’s boilerplate motion to suppress is devoid of anything other than

bald-faced, vague, and conclusory allegations. The motion moves to suppress essentially all

seized evidence, all statements made by defendant in connection with this case, all testimony of

law enforcement officers concerning their observations of defendant, and all testimony of anyone

concerning any such evidence. The ground presented in the motion is simply the broad statement

that all of the seized evidence was seized either without a warrant, without probable cause, or

without other lawful authority. These assertions are false and simply too broad and conclusory to

set forth a colorable claim for relief. 

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POINT VI

DEFENDANT’S MOTION FOR AN ORDER REQUIRING THE 

PRODUCTION OF BRADY EVIDENCE IS MOOT

Defendant moves this Court to enter an order requiring the disclosure of any exculpatory

or mitigating evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963). However,

defendant’s motion is clearly a boilerplate motion taken from another proceeding. It seeks that

the State of Texas prosecutor produce Brady material in the possession of the State of Texas. 

A correctly filed motion would be moot in light of this Court’s Standing Order for

Discovery and Inspection, entered on April 25, 2011, requiring the exact disclosure that

defendant seeks. The Government is in compliance with this Court’s order and will continue to

provide any Brady material if it exists and is discovered.

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POINT VII

DEFENDANT HAS FAILED TO MEET HIS BURDEN OF DEMONSTRATING

EXCEPTIONAL CIRCUMSTANCES FOR A RULE 15 DEPOSITION

Defendant moves to depose a witness, Scott Miller, outside of the United States pursuant

to Rule 15 of the Federal Rules of Criminal Procedure. As the Third Circuit Court of Appeals

has stated, “[a]ttendance of witnesses . . . is the favored method of presenting testimony, and

primarily for this reason depositions are not favored in criminal cases.” United States v. Wilson,

601 F.2d 95, 97 (3d Cir. 1979). Rule l5(a) itself states that courts should order depositions to be

taken only in “exceptional circumstances” and when “it is in the interest of justice” to do so. 

Fed. R. Crim. Pro. 15(a)(1). As the Wilson court stated, “[t]he antipathy to depositions is due in

large part to the desirability of having the factfinder observe witness demeanor.” Id.; see also

United States v. Mueller, 74 F.3d 1152, 1156 (11th Cir. 1996) (“Depositions, particularly those

taken in foreign countries, are generally disfavored in criminal cases.”). 

The Third Circuit has stated that two factors to consider in determining whether a movant

has established exceptional circumstances are whether the witness’s testimony is material and the

witness’s availability. United States v. Ismaili, 828 F.2d 153, 159-61 (3d Cir. 1987). Courts

typically expect a defendant seeking a foreign deposition to make “some showing, beyond

unsubstantiated speculation, that the evidence exculpates [him].” United States v Kelley, 36 F.3d

1118, 1125 (D.C. Cir. 1994). Defendant Rad asserts that Miller’s testimony is material because

he can provide narration, but does not explain why that narration would bear upon defendant’s

guilt or innocence. Defendant Rad also asserts that Miller is unwilling to travel to the United

States, but does not proffer what is hindering such travel, be it financial or otherwise. 

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Defendant’s unsubstantiated claims are insufficient to meet the burden established by the

courts. Only after defendant provides greater information can the Government respond to

defendant’s suggestions. Additionally, defendant has stated that he would not travel to the

deposition, but would be available by teleconference. If a deposition was ordered, the

Government would certainly want a live deposition, not one over video-conference. 

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CONCLUSION

The Government respectfully asks the Court to deny defendant’s motions.

Respectfully submitted,

PAUL J. FISHMAN

United States Attorney

/s/ Erez Liebermann

By: EREZ LIEBERMANN

ANDREW PAK

Assistant U.S. Attorneys

Dated: October 19, 2012

Newark, New Jersey

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