Recall Roque Court Documents

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.

Case 2:12-cr-00540-KM Document 54 Filed 09/11/13 Page 1 of 16 PageID: 403

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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


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


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


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)


Case 2:12-cr-00540-KM Document 54-1 Filed 09/11/13 Page 1 of 29 PageID: 419





























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