THE UNITED STATES COURT OF APPEALS FOR THE TENTH...

THE UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

vs. No. 12-701

(Dist. Colo. No. 10-cr-00509-REB)

RAMONA CAMELIA FRICOSU,

Defendant/Petitioner.

__________________________________________________________________

UNITED STATES’ RESPONSE AND MOTION TO DISMISS PETITION FOR PERMISSION TO APPEAL

Pursuant to the court’s order of February 6, 2012, and Fed. R.

App. P. 27(a) and 10th Cir. R. 27.2, the United States provides its

response to the Petition for Permission to Appeal (“Petition”), and

moves to dismiss the Petition for lack of jurisdiction. The defendant,

Ramona Camelia Fricosu (“Fricosu”) is charged with multiple fraud

offenses, and trial is likely to be scheduled during the summer of 2012.

The district court recently entered an order granting: (1) an application

by the United States that Fricosu be directed to provide an

unencrypted copy of a hard drive previously seized under search

warrant; and (2) Fricosu’s motion to receive a copy of the encrypted

Appellate Case: 12-701 Document: 01018795338 Date Filed: 02/16/2012 Page: 1

hard drive. This court lacks jurisdiction to review Fricosu’s appeal at

this time because the ruling below is not a final order under 28 U.S.C.

§ 1291, does not involve circumstances that satisfy any of the narrow

exceptions to § 1291's finality requirements, and is not appealable

under 28 U.S.C. § 1292.

CASE STATEMENT

Ms. Fricosu is charged in a 49-count indictment in the District of

Colorado with bank and wire fraud, money laundering, false

statements to financial institutions and aiding and abetting, in

violation of 18 U.S.C. §§ 1344, 1343, 1957(a), 1014 and 2. (Att. at 17-1

37, [doc. 1]). The government filed an application in the district court2

under the All Writs Act, 28 U.S.C. § 1651, seeking an order requiring

that Ms. Fricosu provide an unencrypted version of the contents of a

Ms. Fricosu is charged in 38 of the 49 counts. 1

Pursuant to Fed. R. App. P. 27(a)(2)(B), pertinent documents that were2

not submitted as attachments to the Petition are attached to the

government’s response. Citations to attachments hereto are to the

consecutively paginated attachment, with district court document numbers

noted parenthetically, in the form “Att. at ____ [doc. __]”. The Petition’s

attachments do not contain the district court document numbers but do

contain the Tenth Circuit case header. References to the Petition’s

attachments will be to the consecutive page numbers in the upper right hand

corner, in the form “Pet. Att. at ___.”

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computer previously seized from her residence under a search warrant.

(Pet. Att. at 11-21). Fricosu filed a motion requesting a copy of the

encrypted hard drive. (Att. at 38-39, [doc. 101]). After briefing and

multiple hearings (Att. at 40-85, [docs. 102, 104, 179, 180, 183, 213,

219, 235]), the district court entered an order granting the

government’s application and Fricosu’s motion for a copy of the

encrypted drive (“Order”). (Pet. Att. at 1-10).

Now, in her Petition, Fricosu argues that interlocutory appeal is

warranted because the Order: (1) represents a “novel use of the All

Writs Act” and “breaks new legal ground;” (2) “implicates at least the

4 and 5 Amendments” and “is a matter of significant public interestth th

and importance;” and (3) absent appeal, the Order is unreviewable.

(Pet. at 3-4). Fricosu claims that the Order is appealable under 28

U.S.C. § 1291 and F. R. App. P. 5, and is within the “collateral order

doctrine.” (Pet. at 3). 3

Fricosu moved in the district court for a stay of the Order and for an3

extension of time to file an appeal. (Pet. Att. at 28-30). The district court

denied the motion, concluding that its interlocutory Order is not appealable.

(Pet. Att. at 39-41).

The district court conducted hearings on other pending defense motions

on February 7, 2012, and scheduled a further hearing for March 9, 2012, at

which time it will rule on a pending defense motion for a continuance and to

schedule trial during or after July 2012. (Att. at 89-91, [doc. 260]).

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ARGUMENT

This Court Lacks Jurisdiction To Review

The District Court’s Interlocutory Order

A. The Order is Not A Final Decision Reviewable Under 28 U.S.C. § 1291

This Court’s jurisdiction is conferred by 28 U.S.C. § 1291, which

authorizes the courts of appeals to review “all final decisions of the

district courts of the United States. . .” In construing § 1291, this Court

has held that ”[a] final decision is one that ‘ends the litigation on the

merits and leaves nothing for the court to do but execute the

judgment.’” See United States v. Harper, 545 F.3d 1230, 1232 (10th Cir.

2008) (citations omitted). This court’s case law is consistent with the

Supreme Court’s decision in Flanagan v. United States, 465 U.S. 259

(1984), where the Court held that “[i]n a criminal case the [final

judgment] rule prohibits appellate review until conviction and

imposition of sentence.” 465 U.S. at 263, citing Berman v. United

States, 302 U.S. 211 (1937). The Flanagan court held the policy concern

underlying the final judgment rule “is at its strongest in the field of

criminal law,” where the “rule serves several important interests. It

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helps preserve the respect due trial judges by minimizing

appellate-court interference with the numerous decisions they must

make in the pre-judgment stages of litigation.” Id. at 263-64. It

protects society’s interest in a Speedy Trial because “as time passes, the

prosecution’s ability to meet its burden of proof may greatly diminish.”

Id. at 264. And, delay increases “the period during which defendants

released on bail may commit other crimes” and “may also adversely

affect the prospects for rehabilitation.” Id. at 264-65 (citations omitted).

Those concerns apply here. This case has been delayed by multiple

requests for continuance by the defendants, and trial will likely be

scheduled for the summer of 2012. (Att. at 1-16, 89-91).

Nonetheless, Fricosu argues that the Order is appealable because

of its novelty, and the fact that it is of public interest and importance.

(Pet. at 3). But courts have properly rejected the claim that otherwise

non-final orders should be reviewed on such grounds. See United States

v. White, 743 F.2d 488, 492 (7th Cir. 1984) (finding no jurisdiction to

review government’s appeal of a denial of a motion to disqualify a

criminal defense lawyer; “[U]nfortunately, no matter how interesting

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and no matter how important this case may be, and we have outlined

the facts simply to illustrate the nature of a conflict that seems to be

recurring in great frequency, we cannot address it unless we have

jurisdiction.”); Cf. Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 8 (D.D.C.

2010) (“[A] court without jurisdiction is a court without power, no

matter how appealing the case for exceptions may be.”) (citation

omitted).

B. The Order is Not A Collateral Order Under Cohen

The Petition also argues that Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541 (1949) allows an appeal of the Order. (Pet. at 3-4).

The United States recognizes that in some instances interlocutory

appeals may be heard as an exception to the final judgment rule under

Cohen. For an appeal to satisfy the Cohen exception, three

requirements must be met: “the order must conclusively determine the

disputed question, resolve an important issue completely separate from

the merits of the action, and be effectively unreviewable on appeal from

a final judgment.” United States v. Ambort, 193 F.3d 1169, 1171 (10th

Cir. 1999), citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468

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(1978). This court noted that in criminal cases, this limited exception is

applied “with the utmost strictness . . . .”Id. at 1171, citing Flanagan v.

United States, 465 U.S. at 265. The Supreme Court has held that “in

addition to satisfying the other requirements of Cohen,” an

interlocutory appeal in a criminal case must involve “an asserted right

the legal and practical value of which would be destroyed if it were not

vindicated before trial.” United States v. Hollywood Motor Car Co., Inc.,

458 U.S. 263, 266 (1982) (per curiam) (quoting United States v.

MacDonald, 435 U.S. 850, 860 (1978)).

The Petition fails to make the necessary showing. First, the issues

in the Order are not ”completely separate from the merits” of this case.

The Order grants Fricosu’s motion for discovery pertinent to the

ongoing litigation. (Pet. Att. at 10). The Order also effectuates two

previous search warrants issued and executed during the investigation

leading to the charges against Fricosu, and relates to evidence relevant

to charges as to which Fricosu will be tried. (Pet. Att. at 2-5 [reciting

findings of fact regarding seizure of encrypted drive and Fricosu’s

recorded conversation regarding its contents]). Indeed, the issue is no

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more “separate from the merits” than any order compelling production

of information or denying suppression of statements or evidence based

on alleged violations of 4th or 5th Amendment rights. Those situations,

like that presented in the Petition, are reviewable only after conviction.

United States v. Ryan, 402 U.S. 530, 532-33 (1971) (“[W]e have

consistently held that the necessity for expedition in the administration

of the criminal law justifies putting one who seeks to resist the

production of desired information to a choice between compliance with

a trial court’s order to produce prior to any review of that order, and

resistance to that order with the concomitant possibility of an

adjudication of contempt if his claims are rejected on appeal.”);

Di Bella v. United States, 369 U.S. 121, 131 (1962) (preindictment

orders granting or denying suppression of evidence procured through

unlawful search and seizure are not immediately appealable); United

States v. Challoner, 3 Fed. Appx. 936 (10th Cir. 2001) (dismissing

defendant’s appeal of a denial of suppression motion for lack of

jurisdiction because denial was not a final, appealable order).

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Second, the Petition argues that the Order is effectively

unreviewable because Fricosu will either “decrypt the encrypted drive”

or “be sent to jail for contempt of court for failing to do so.” (Pet. at 4).

In the first scenario, if Fricosu decrypts the drive, and the United

States offers evidence from the drive, and Fricosu is convicted, Fricosu

can appeal her conviction – just as defendants do when compelled to

produce documents pursuant to subpoena or when denied suppression

of evidence or statements pre-trial. See Cobbledick v. United States, 309

U.S. 323, 325-26 (1940) ("The correctness of a trial court's rejection

even of a constitutional claim made by the accused in the process of

prosecution must await his conviction before its reconsideration by an

appellate tribunal."); DiBella v. United States, supra, 369 U.S. at 131

(preindictment orders granting or denying suppression of evidence

procured through unlawful search and seizure are not immediately

appealable). The Petition fails to supply a rationale as to the difference

between this Order and those cases, and the United States submits

there is none.

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In the second scenario, if Fricosu fails to comply with the Order

by failing to provide the unencrypted contents, and the United States

initiates contempt proceedings, a finding by the district court that Ms.

Fricosu is in contempt is appealable. See Church of Scientology of

California v. United States, 506 U.S. 9, 18 n.11 (1992) ("A party that

seeks to present an objection to a discovery order immediately to a

court of appeals must refuse compliance, be held in contempt, and then

appeal the contempt order.").

The Petition, nonetheless, asserts that, if this second scenario

comes to pass, because she “would likely spend time in jail” during the

appeal, “no appeal will give her back” that time, referencing family

responsibilities. (Pet. at 4). The Petition cites no authority supporting

the notion that speculative future events overcome the finality

requirement of § 1291 or bring the Order within its narrow exceptions.

Fricosu is entitled to review of the Order – but she has no right to delay

trial on the criminal charges against her because her claim can be

adequately reviewed following judgment. See Abney v. United States,

431 U.S. 651, 656 (1977) (”[i]t is well settled that there is no

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constitutional right to an appeal. . .The right of appeal, as we presently

know it in criminal cases, is purely a creature of statute; in order to

exercise that statutory right of appeal one must come within the terms

of the applicable statute - in this case 28 U.S.C. § 1291").

C. The Order is not Appealable Under 28 U.S.C. § 1292 or Fed. R. App. P. 5

The Petition invokes Fed. R. App. P. 5, and this court directed a

response as to whether 28 U.S.C. § 1292 provides jurisdiction for the

Petition. Neither authorizes review by this court.

Section 1292(a) confers jurisdiction as to appeals from specified

orders in civil cases, namely, involving injunctions, receiverships,

admiralty matters, etc. Section 1292(b) specifies that a district court

may in civil cases certify an order for appeal if certain criteria are

met. Courts consistently reject the application of § 1292(b) to criminal

cases. See White, supra, 743 F.2d at 493 (order denying motion to

disqualify defense counsel was not appealable; noting that § 1292(b)

applies to civil cases only); United States v. Russell, 804 F.2d 571, 573

n.3 (9th Cir. 1986) (“There is no provision for district court certification

of interlocutory criminal appeals analogous to 28 U.S.C. § 1292(b)

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regarding interlocutory civil appeals.”); United States v. Moscony, 1988

WL 124576, *1 (E.D. Pa. 1988) (unpublished) (“[I]t appears that those

courts that have addressed the question have held that interlocutory

orders in criminal cases are not appealable under § 1292(b).”)

Rule 5 sets forth the procedures by which to petition for

permission to appeal but is also applicable only to civil matters. 16A

Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Catherine

T. Struve, Federal Practice and Procedure § 3951 (4th ed. 2008) (“Rule 5

sets out the procedure for seeking the permission of a court of appeals

to take a civil appeal in instances in which appeals are within the court

of appeals’ discretion.”) (emphasis supplied). Thus, neither 28 U.S.C.

§ 1292 nor Rule 5 provide authority for the Petition.

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CONCLUSION

The Petition should be denied and dismissed for lack of appellate

jurisdiction.

Respectfully submitted,

JOHN F. WALSHUnited States Attorney

By: s/Patricia Davies Patricia DaviesAssistant United States Attorney1225 17 Street, Suite 700th

Denver, CO 80202Phone: 303/454-0100Fax: 303/454-0461Email: [email protected]:[email protected]

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mailto:[email protected]

CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing

(1) all required privacy redactions have been made;

(2) if required to file additional hard copies, that the ECF submission is an exact copy of those documents;

(3) The digital submissions have been scanned for viruses withthe most recent version of a commercial virus scanning program,TREND MICRO Office Scan for Windows, Version 10.5.1997,Engine Version 9.500.1002, Virus Pattern File 8.779.00, dated2/15/12 and according to the program are free of viruses.

s/Dorothy Burwell U.S. Attorney’s Office

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CERTIFICATE OF SERVICE

I hereby certify that on February 16, 2012, I electronically filedthe foregoing using the CM/ECF system which will send notification ofsuch filing to the following e-mail addresses:

Philip L. Dubois [email protected]

Mark Johnson [email protected]

s/Dorothy Burwell Dorothy BurwellU.S. Attorney’s Office

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Criminal Case No.


Plaintiff,

v.

1. SCOTT ANTHONY WHATCOTT, aka Michael Scott Smith,aka Scott Vasadi, and

2. RAMONA CAMELIA FRICOSU, aka Ramona Smith,

Defendants._____________________________________________________________________

INDICTMENT18 U.S.C. §§ 1344 & 2 [Bank Fraud and Aiding/Abetting];18 U.S.C. §§ 1343 & 2 [Wire Fraud and Aiding/Abetting];

18 U.S.C. § 1957(a) [Money Laundering];18 U.S.C. § 1028A(a)(1) [Aggravated Identity Theft];

18 U.S.C. §§ 1014 & 2 [False Statements To Financial Institutions and Aiding/Abetting]_____________________________________________________________________

The Grand Jury charges that:

Introductory Allegations

1. The defendant, SCOTT ANTHONY WHATCOTT conducted real estate

transactions using the names Scott Whatcott, Michael Smith and Scott Vasadi

(hereinafter WHATCOTT). In or about December 14, 2007, WHATCOTT changed his

name to Michael Smith, but continued using WHATCOTT and other names, as set forth

below. SCOTT WHATCOTT resided in and conducted his real estate transactions in the

Colorado Springs, Colorado area.

2. The defendant, RAMONA CAMELIA FRICOSU was for certain pertinent

Case 1:10-cr-00509-REB Document 1 Filed 09/30/10 USDC Colorado Page 1 of 17

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periods married to and throughout relevant times conducted real estate transactions

with WHATCOTT using the names Ramona Fricosu and Ramona Smith (hereinafter

FRICOSU). On or about December 14, 2007, FRICOSU changed her name to Ramona

Smith, but also continued using FRICOSU, as set forth below. RAMONA FRICOSU

resided in and conducted her real estate transactions in the Colorado Springs, Colorado

area.

The Scheme to Defraud

3. Between in or about July 2007, and continuing through in or about

September 2010, in the State and District of Colorado, defendants, SCOTT

WHATCOTT and RAMONA FRICOSU:

(A) knowingly executed and attempted to execute a scheme or artifice to defraud

or to obtain money or property by means of materially false and fraudulent pretenses,

representations and promises from financial institutions, including Wells Fargo Home

Mortgage (“WF”) and USAA Federal Savings Bank (“USAA”), financial institutions

whose deposits were insured by the Federal Deposit Insurance Corporation; and

(B) knowingly devised a scheme or artifice to defraud and to obtain money and

property by means of materially false and fraudulent pretenses, representations and

promises from various commercial lenders, including Sun Trust Mortgage, Taylor, Bean

& Whitaker, Nexgen Lending, Inc., and National City Mortgage dba PNC Mortgage, and

from persons who were attempting to sell residential real property in the Colorado

Springs, Colorado area.

4. During the scheme to defraud, SCOTT WHATCOTT and RAMONA

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FRICOSU located sellers in the Colorado Springs area who sought to sell their homes

due to imminent foreclosure or the sellers’ relocation from Colorado.

5. It was part of the scheme for WHATCOTT to tell each owner that he

wished to buy the home and that he would obtain a new mortgage or assume the

existing mortgage, and would make the seller’s future mortgage payments.

6. It was part of the scheme for WHATCOTT to convince the home seller to

transfer the property to him by quit claim or other deed, and/or to sign a power of

attorney, purportedly as part of WHATCOTT assuming the mortgage, obtaining a new

mortgage or for other purposes to avoid foreclosure of the property.

7. It was part of the scheme for WHATCOTT and/or FRICOSU to make

mortgage payments to the mortgage lender for some period while the scheme to

defraud continued.

8. It was part of the scheme for WHATCOTT or FRICOSU to file a complaint

to quiet title regarding the properties they sought to obtain, and in such lawsuits,

WHATCOTT or FRICOSU, using one of their aliases, would be the plaintiff and claim to

be the “sole owner” of the residence, and would falsely allege that WHATCOTT or

FRICOSU had made diligent efforts to ascertain anyone who might have an interest in

the particular residential real property.

9. It was further part of the scheme that in some instances, WHATCOTT or

FRICOSU would file with the court in the quiet title lawsuits a “Return of Service” that

would contain materially false and fraudulent representations that WHATCOTT or

FRICOSU, using one of their various aliases, had delivered the quiet title documents to

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the seller and/or to the mortgage lender when WHATCOTT or FRICOSU had not done

so.

10. It was further part of the scheme that in other instances, WHATCOTT or

FRICOSU would list as defendants in the quiet title action and file with the court

“Returns of Service” on mortgage lenders that WHATCOTT or FRICOSU knew had no

interest in the particular residential real property and so would not contest the quiet title

lawsuit.

11. It was further part of the scheme that WHATCOTT or FRICOSU, in one of

their various aliases, would be named as a defendant in the quiet title action for

particular residential real property, and as a defendant, for WHATCOTT or FRICOSU to

file a document with the court disclaiming any interest in the property.

12. It was further part of the scheme that WHATCOTT or FRICOSU would

then file a “Motion For Decree Quieting Title” as to particular residential real property

based on the disclaimer by WHATCOTT or FRICOSU as described in paragraph 11,

above, and their claim that “no other person has come forward to assert an interest in

the subject matter of this action.”

13. It was further part of the scheme for WHATCOTT or FRICOSU to obtain

title to the residential real property, through the scheme alleged in paragraphs 3-12,

above. Once WHATCOTT and FRICOSU obtained the court’s decree quieting title as

to particular property, they sold such property and received the sales proceeds without

paying the outstanding mortgage.

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Executions of the Bank Fraud

Counts 1 - 1218 U.S.C. §§ 1344 & 2

14. The Grand Jury re-alleges and incorporates paragraphs 1-13.

15. On or about the dates set forth below in the State and District of Colorado,

the defendants, SCOTT WHATCOTT and RAMONA FRICOSU, for the purpose of

knowingly executing and attempting to execute the scheme or artifice to defraud or

obtain money or property from financial institutions, as described in paragraphs 3(A),

and 4 through 13, above, committed the acts described below:

Count Date Property Bank Execution

1 7/13/07 9070 Christy Court,Colorado Springs, CO

WF Filed Scott Whatcott;Ramona Fricosu v.Donald H. Maier, et al.,07cv236 (quiet titlecomplaint)


WF False “Returns ofService” filed, 07cv236


WF Recorded warranty deedtransferring title fromScott Whatcott andRamona Fricosu toMichael Smith


WF Sale by Michael Smith toHeather McLean withoutpayment of WFmortgage

5 4/30/08 20670 Calle PacificoPoint, ColoradoSprings, CO

WF Filed Michael Smith v.Michael I Johnson andWashington MutualBank, 08cv189 (quiettitle complaint)

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6 5/5/08 9419 TranquilMorning Terrace,Colorado Springs, CO

WF Filed Michael Smith v.Ramona Smith, et al.,08cv192 (quiet titlecomplaint)


WF “Return of Service” filed,08cv192

8 5/13/08 20670 Calle PacificoPoint, ColoradoSprings, CO

WF False “Return ofService” filed, 08cv189


WF Sale by Michael Smith toAbrahm and Amy Jarrielwithout payment of WFBmortgage

10 6/10/09 2633 Cinnabar Road,Colorado Springs, CO

USAA Filed Michael Smith v.Ramona Smith, et al.,09cv267 (quiet titlecomplaint)


USAA False “Return ofService” filed, 09cv267


USAA Sale by Michael Smith toKurt Gardner withoutpayment of USAAmortgage

All in violation of Title 18, United States Code, Sections 1344 and 2.

Use of Interstate Wire Transmissions to Execute Fraud

Counts 13 - 1618 U.S.C. §§ 1343 & 2


17. On or about the dates set forth below in the State and District of Colorado

and elsewhere, the defendants, SCOTT WHATCOTT and RAMONA FRICOSU, for the

purpose of executing the scheme or artifice to defraud or to obtain money or property by

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means of materially false and fraudulent pretenses and representations, as described in

paragraphs 3(B), and 4 through 13 above, transmitted and caused to be transmitted by

means of wire communication in interstate commerce the items set forth below:

Count Date Property Mortgage Co. Wire Transmission

13 4/13/08 10436 Ross LakeDrive, Peyton, CO

National CityMortgage,PNCMortgage

Email transmission [email protected] toRyan Yates attachingblank power of attorneyfor Ross Lake dealings

14 5/2/08 9028 SunningdaleRoad, Peyton, CO

Taylor, Bean& Whitaker

Email transmission [email protected] [email protected] confirming mortgagepayment

15 4/8/09 9028 SunningdaleRoad, Peyton, CO

Taylor, Bean& Whitaker

$241,589.76 wire transferfrom Ocala, FL to ClearTitle in Colorado Springs(sale proceeds to Fricosu)

16 1/21/10 2757 Crooked VineCourt, ColoradoSprings, CO

Sun Trust $3,062.41 onlinemortgage payment fromEnt FCU in ColoradoSprings to Suntrust Bankin Orlando, FL

All in violation of Title 18, United States Code, Sections 1343 and 2.

Count 1718 U.S.C. §§ 1028A(a)(1) [Aggravated Identity Theft]

18. Between in or about December 2007 through in or about October 2008, in

the State and District of Colorado, the defendant SCOTT WHATCOTT, using the name

Michael Smith, knowingly possessed and used, without lawful authority, a means of

identification of another person, to wit: Social Security Number XXX-XX-0072, during

and in relation to the felony violations alleged in Counts 4 and 9 of this Indictment, that

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is, WHATCOTT used SSN XXX-XX-0072 to open WFB acct # XXXXXX6030, and

thereafter, received therein proceeds of bank fraud, in violation of Title 18, United States

Code, Section 1028A(a)(1) and 1028A(c)(5).

Count 1818 U.S.C. §§ 1028A(a)(1) [Aggravated Identity Theft]

19. On or about February 27, 2008, in the State and District of Colorado, the

defendant SCOTT WHATCOTT, using the name Michael Smith, knowingly possessed

and used, without lawful authority, a means of identification of another person, to wit:

Social Security Number XXX-XX-0072, during and in relation to a felony violation, that

is, WHATCOTT presented SSN card number XXX-XX-0072 to Clear Title in connection

with his sale of 9070 Christy Court, Colorado Springs, CO, the bank fraud charged in

Count 4 of this indictment, all in violation of Title 18, United States Code, Section

1028A(a)(1) and 1028A(c)(5).

Counts 19 - 33 18 U.S.C. §§ 1957(a) [Money Laundering]


21. On or about the dates listed below, in the State and District of Colorado

and elsewhere, the defendants, SCOTT WHATCOTT and RAMONA FRICOSU, as

identified in each count below, knowingly engaged and attempted to engage in a

monetary transaction by, through, or to a financial institution affecting interstate and

foreign commerce, involving criminally derived property of a value greater than $10,000,

and which was derived from specified unlawful activity; namely, defendants withdrew

moneys that were proceeds of bank fraud, as charged in Counts 1-4, 6-7 and 9-12, and

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wire fraud, as charged in Counts 14-16, as follows:

Count Date Defendant Monetary Transaction

19 2/27/08 Whatcott $30,000 withdrawal from WFB acct #XXXXXX6030 (Christy Court proceeds)



22 10/3/08 Whatcott $30,000 withdrawal from WFB acct #XXXXXX6030 (Tranquil Morning Terraceproceeds)



25 11/23/09 Whatcott $27,426.12 withdrawal from JP Morgan ChaseBank acct # XXXXX7570 for a cashier’s checkpayable to “El Paso County Public Trustee”(Cinnabar Road proceeds)

26 12/3/09 Whatcott $25,000 withdrawal from JP Morgan ChaseBank acct # XXXXX7570 (Cinnabar Roadproceeds)

27 4/9/09 Fricosu $40,000 withdrawal from JP Morgan ChaseBank acct # XXXXX1213, from Austin BluffsPkwy branch (Sunningdale Road proceeds)

28 4/9/09 Fricosu $40,000 withdrawal from JP Morgan ChaseBank acct # XXXXX1213 (Sunningdale Roadproceeds)


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32 5/11/10 Fricosu $60,000 withdrawal from Ent Federal CreditUnion acct # XXX667 (Crooked Vine Courtproceeds)

33 5/11/10 Fricosu $24,000 withdrawal from Ent Federal CreditUnion acct # XXX667 (Crooked Vine Courtproceeds)

All in violation of Title 18, United States Code, Sections 1957(a).

Count 34 18 U.S.C. § 1344 [Bank Fraud]

22. Between in or about March 2006 and in or about September 2006, in the

State and District of Colorado, defendant SCOTT WHATCOTT knowingly executed and

attempted to execute a scheme or artifice to defraud Wells Fargo Bank, NA (“WFB”), a

financial institution whose deposits were insured by the Federal Deposit Insurance

Corporation, as follows.

a. WHATCOTT and Ramona Fricosu obtained a mortgage from WFB, loan #

XXX-XXXXXX9164, for the purchase of 5473 Thresher Lane, Colorado Springs, CO

(“Thresher Lane”).

b. On March 29, 2006, WHATCOTT attended the closing for the purchase of

Thresher Lane, and WFB loan # XXX-XXXXXX9164 funded WHATCOTT’s purchase.

c. Shortly following the closing, title company personnel discovered that the

Note and Deed of Trust signed by WHATCOTT for Thresher Lane were missing.

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WHATCOTT was contacted by title company personnel and his realtor but WHATCOTT

refused to sign an additional copy of the Note and Deed and Trust for Thresher Lane.

d. On June 8, 2006, WHATCOTT and Ramona Fricosu executed a warranty

deed transferring title to Thresher Lane to WHATCOTT’s father-in-law, Augustin Vasadi,

without paying off the $177,036 WFB loan # XXX-XXXXXX9164

e. In or about July 2006, WHATCOTT, caused the Thresher Lane property to

be listed for sale with Augustin Vasadi as the seller. Thereafter, WHATCOTT used the

name Scott Vasadi to further the sale.

f. On September 11, 2006, Thresher Lane was sold to a buyer without

paying off WHATCOTT’s WFB loan # XXX-XXXXXX9164. The $188,916 in proceeds

from the sale of Thresher Lane were sent to an account in the name of Augustin Vasadi,

who thereafter, transferred the monies to WHATCOTT.

23. The foregoing was in violation of 18 U.S.C. § 1344.

Counts 35- 3918 U.S.C. §§ 1014 & 2

[False Statements to Financial Institutions and Aiding/Abetting]

24. On or about the dates listed below, in the State and District of Colorado,

the defendants SCOTT WHATCOTT and RAMONA FRICOSU knowingly made false

statements for the purpose of influencing Wells Fargo Bank, N.A. (WFB), and

Washington Mutual, the deposits of which are insured by the Federal Deposit Insurance

Corporation, in connection with defendants’ loan applications, as follows:

11


000027


Count Date Financial Institution False Document

35 9/15/05 WashingtonMutual

Loan application and supportingdocuments by Fricosu and Whatcottfor Christy Court mortgage

36 1/4/06 WFB Loan application and supportingdocuments by Fricosu and Whatcottfor Thresher Lane mortgage

37 2/6/06 WFB False Bank of America employmentverification letters and earningsummaries (for Thresher Lanemortgage)

38 2/15/06 WFB False bank statements re RamonaFricosu’s Security Service FederalCredit Union account (for ThresherLane mortgage)

39 2/16/06 WashingtonMutual

False verification re Woodcraftersemployment for Scott Whatcott andRamona Fricosu (for Christy Courtmortgage)

:All in violation of Title 18, United States Code, Sections 1957(a) and 2.

Counts 40 - 4918 U.S.C. §§ 1344 & 2 [Bank Fraud and Aiding/Abetting]

25. Beginning in or about April 2006 and continuing thereafter until in or about

May 2006, within the State and District of Colorado, defendants SCOTT WHATCOTT

and RAMONA FRICOSU knowingly executed and attempted to execute a scheme or

artifice to defraud Bank of America, whose deposits are insured by the Federal Deposit

Insurance Corporation, by means of materially false and fraudulent pretenses,

representations and promises.

26. As part of said scheme, WHATCOTT and FRICOSU, caused the names

12


000028


on cards issued to them to be changed to “Ramona Wilson” and “Scott Wilson”, namely

credit card account number ending in 3089 (Fricosu ) and credit card account number

ending in 9831 (Whatcott).. Thereafter, WHATCOTT and FRICOSU, while working as

customer service representatives at Bank of America’s Colorado Springs call center

fraudulently caused credits to be added to the balances on those credit cards.

27. Once the credits were added to the defendants’ Bank of America Credit

cards, WHATCOTT and FRICOSU used their increased credit balance to make

purchases or withdraw cash amounts from the cards.

28. Through their scheme to defraud Bank of America by causing fraudulent

credits to be added to the credit cards for “Scott Wilson” and “Ramona Wilson”,

WHATCOTT and FRICOSU obtained a total approximate amount of credit of $330,291,

and using these cards, spent or withdrew cash totaling $47,240.21,

29. To knowingly execute and attempt to execute the scheme described in

paragraphs 25-28, above, on or about the dates listed below, in the State and District of

Colorado, the defendants caused the following transactions with respect to the credit

cards for WHATCOTT and FRICOSU, as follows:

Count Date Transaction to Execute the Fraud

40 4/26/06 $50 “Credit Purchase Balance” added to Fricosu’s creditcard account #3089

41 4/26/06 $50 “Credit Purchase Balance” added to Whatcott’s creditcard account #9831

42 5/5/06 $330 “Credit Purchase Balance” added to Friscosu’scredit card account #3089

13


000029


43 5/11/0611:31 p.m.

$400 “Credit Purchase Balance” Friscosu’s credit cardaccount #3089

44 5/11/0611:37 p.m.

$400 “Credit Purchase Balance” added to Whatcott’scredit card account #9831

45 5/11/0611:47 p.m.

$400 “Credit Purchase Balance” added to Whatcott’scredit card account #9831

46 5/12/06 $250 “Credit Purchase Balance” added to Whatcott’scredit card account #9831

47 5/12/06 $400 “Credit Purchase Balance” added to Friscosu’scredit card account #3089

48 5/15/06 Cash advance from card #9831 for $1,200 by Fricosu

49 5/18/06 Cash advance from card #9831 for $1,240 and cashadvance from card #3089 for $1,900 by Whatcott

All in violation of Title 18, United States Code, Sections 1344(1) & 2.

Notice of Forfeiture Allegation

30. The allegations contained in Counts 1 - 16, and 19 - 49 of this Indictment

are hereby re-alleged and incorporated by reference for the purpose of alleging

forfeiture pursuant to the provisions of Title 18, United States Code, Section

981(a)(1)(C), Title 18, United States Code, Sections 982(a)(1) and 982(a)(2) and Title

28, United States Code, Section 2461(c).

31. Upon conviction of the violations alleged in Counts 1 through 12, and 34-

49, of this Indictment involving violations of Title 18, United States Code, Section 1344

(Bank Fraud); and Counts 13-16 and Title 18, United States Code, Section 1343 (Wire

Fraud), defendants SCOTT WHATCOTT and RAMONA FRICOSU shall forfeit to the

United States, pursuant to Title 18, United States Code, Section 981(a)(1)(C), Title 18,

United States Code, Section 982(a)(2), and Title 28, United States Code, Section

14


000030


2461(c), any and all of the defendants’ right, title and interest in all property constituting

and derived from any proceeds the defendants obtained directly and indirectly as a

result of such offense.

32. Upon conviction of the violations alleged in Counts 36 - 39 of this

Indictment involving violations of Title 18, United States Code, Section 1014 (False

statements to financial institutions), defendants SCOTT WHATCOTT and RAMONA

FRICOSU shall forfeit to the United States, pursuant to Title 18, United States Code,

Section 981(a)(1)(C) and Title 28, United States Code, Section 2461(c), any and all of

the defendant’s right, title and interest in any property, real or personal, that constitutes

or is derived from proceeds traceable to the commission of such offense, or any

property traceable to such property.

33. The assets to be forfeited, pursuant to Title 18, United States Code,

Section 982(a)(2), Title 18, United States Code, Section 981(a)(1)(C), and Title 28,

United States Code, Section 2461(c), for the violations of Title 18, United States Code,

Sections 1344, 1343, and 1014 described herein, include but are not limited to:

a. A money judgment in the amount of proceeds obtained by thescheme and by the defendants, for violations of Title 18, United States Code, 1344;

b. A money judgment in the amount of proceeds obtained by thescheme and by the defendants, for violations of Title 18, United States Code, 1343;

c. A money judgment in the amount of proceeds obtained by thescheme and by the defendants, for violations of Title 18, United States Code, 1014; and

d. A vehicle, more particularly known as a 2008 Dodge Dakota pickup,representing property obtained directly or indirectly as a result of the offenses inviolation of Title 18, United States Code, Section 1344 and 1343.

34. Upon conviction of the violations alleged in Counts19 - 33 of this

15


000031


Indictment involving violations of Title 18, United States Code, Section 1957,

defendants SCOTT WHATCOTT and RAMONA FRICOSU shall forfeit to the United

States, pursuant to Title 18, United States Code, Section 982(a)(1) any and all of the

defendant(s)’ right, title and interest in all property, real or personal, involved in such

offense, or all property traceable to such property, including, but not limited to:

a. A money judgment in the amount $254,426,12 against defendantSCOTT WHATCOTT, which represents the amount of the property involved in theseoffenses and or traceable to such property; and

b. A money judgment in the amount $230,000.00 against defendantRAMONA FRICOSU, which represents the amount of the property involved in theseoffenses and or traceable to such property;

35. If any of the property described in the paragraphs above, as a result of

any act or omission of the defendants:

a) cannot be located upon the exercise of due diligence;b) has been transferred or sold to, or deposited with, a third party;c) has been placed beyond the jurisdiction of the Court;d) has been substantially diminished in value; ore) has been commingled with other property which

cannot be subdivided without difficulty;

it is the intent of the United States, pursuant to Title 21, United States Code, Section

853(p), as incorporated by Title 18, United States Code, Section 982(b) and Title 28,

United States Code, Section 2461(c), to seek forfeiture of any other property of said

defendants up to the value of the forfeitable property.

All pursuant to 18 U.S.C. § 982(a)(2)(A) and 28 U.S.C. § 2461(c).

A TRUE BILL:

16


000032


Ink signature on file in the Clerk’s Office FOREPERSON


s/ Patricia DaviesBy: Patricia DaviesAssistant U.S. Attorney1225 Seventeenth Street, Suite 700Denver, CO 80211Telephone: 303-454-0100Facsimile: 303-454-0403Email: [email protected] for the Government

17


000033


(Rev. 04/07)

DEFENDANT: 1. SCOTT ANTHONY WHATCOTT, a.k.a. Michael Scott Smith,

aka Scott Vasadi YOB: 1974

ADDRESS (CITY/STATE): CO Dept. Of Corrections

COMPLAINT FILED? YES X NO

IF YES, PROVIDE MAGISTRATE CASE NUMBER: IF NO, PROCEED TO “OFFENSE” SECTION

HAS DEFENDANT BEEN ARRESTED ON COMPLAINT? YES NO

IF NO, A NEW WARRANT IS REQUIRED

OFFENSES:

Counts 1 - 12, 34, 40 - 49: Bank Fraud & Aiding/abetting, 18 U.S.C.. §§ 1344 & 2Counts 13 - 16: Wire Fraud & Aiding/Abetting, 18 U.S.C. §§ 1343 & 2Counts 17 - 18: Aggravated Identity Theft, 18 U.S.C. § 1028A(a)(1)Counts 19-26: Money laundering, 18 U.S.C. § 1957(a)Count 35 - 39: False Statements to Financial Institutions & Aiding/Abetting, 18 U.S.C. §§1014 & 2

LOCATION OF OFFENSE (COUNTY/STATE): El Paso County, CO

PENALTY:

Counts 1 - 12, 34, 40 - 49: NMT 30 years imprisonment, NMT $1,000,000 fine, or both;NMT 5 years supervised release; $100 special assessment.

Counts 13 - 16: NMT 20 years imprisonment, NMT $250,000, or both; NMT 3 years supervised release; $100 special assessment.

Counts 17 - 18: NLT 2 years imprisonment, consecutive to any other period of imprisonment, NMT $250,000, or both; NMT 3 years supervised release; $100 specialassessment.

Counts 19 - 26: NMT 10 years imprisonment, NMT $250,000 or NMT twice the amount ofcriminally derived property; or both fine and imprisonment; NMT 3 years supervised release;$100 special assessmentCount 35 - 39: NMT 30 years imprisonment, NMT $1,000,000 fine, or both; NMT 5 years

1

Case 1:10-cr-00509-REB Document 1-1 Filed 09/30/10 USDC Colorado Page 1 of 2

000034


supervised release; $100 special assessment.

AGENTS: Special Agent Justin McCarthyU.S. Secret Service

Special Agent Scott SchonsFederal Bureau of Investigation

Special Agent Patricia NelsonIRS-CID

AUTHORIZED BY: Patricia DaviesAssistant U.S. Attorney

ESTIMATED TIME OF TRIAL:

five days or less X over five days other

THE GOVERNMENT

X will seek detention in this case will not seek detention in this case

The statutory presumption of detention is or is not applicable to this defendant. (Circle one)

OCDETF CASE: Yes X No

2


000035


(Rev. 04/07)

DEFENDANT: 1. RAMONA FRICOSU, aka Ramona Smith,

YOB: 1974

ADDRESS (CITY/STATE): Peyton, CO

COMPLAINT FILED? YES X NO

IF YES, PROVIDE MAGISTRATE CASE NUMBER: IF NO, PROCEED TO “OFFENSE” SECTION

HAS DEFENDANT BEEN ARRESTED ON COMPLAINT? YES NO

IF NO, A NEW WARRANT IS REQUIRED

OFFENSES:

Counts 1 - 12, 40 - 49: Bank Fraud & Aiding/abetting, 18 U.S.C.. §§ 1344 & 2Counts 13 - 16: Wire Fraud & Aiding/Abetting, 18 U.S.C. §§ 1343 & 2Counts 27 - 33: Money laundering, 18 U.S.C. § 1957(a)Count 35 - 39: False Statements to Financial Institutions & Aiding/Abetting, 18 U.S.C. §§1014 & 2

LOCATION OF OFFENSE (COUNTY/STATE): El Paso County, CO

PENALTY:

Counts 1 - 12, 40 - 49: NMT 30 years imprisonment, NMT $1,000,000 fine, or both; NMT 5years supervised release; $100 special assessment.

Counts 13 - 16: NMT 20 years imprisonment, NMT $250,000, or both; NMT 3 years supervised release; $100 special assessment.

Counts 27 - 33: NMT 10 years imprisonment, NMT $250,000 or NMT twice the amount ofcriminally derived property; or both fine and imprisonment; NMT 3 years supervised release;$100 special assessment

Count 35 - 39: NMT 30 years imprisonment, NMT $1,000,000 fine, or both; NMT 5 yearssupervised release; $100 special assessment.

AGENTS: Special Agent Justin McCarthy

1


000036


U.S. Secret Service

Special Agent Scott SchonsFederal Bureau of Investigation

Special Agent Patricia NelsonIRS-CID

AUTHORIZED BY: Patricia DaviesAssistant U.S. Attorney

ESTIMATED TIME OF TRIAL:

five days or less X over five days other

THE GOVERNMENT

X will seek detention in this case will not seek detention in this case

The statutory presumption of detention is or is not applicable to this defendant. (Circle one)

OCDETF CASE: Yes X No

2


000037



000038



000039



Criminal Case No. 10-cr-00509-REB-02


Plaintiff,

v.

2. RAMONA CAMELIA FRICOSU, aka Ramona Smith

Defendant.

GOVERNMENT’S RESPONSE REGARDINGDEFENDANT FRICOSU’S MOTION FOR DISCOVERY - SEIZED HARD DRIVE

(Document # 101)

The United States of America, by United States Attorney John F. Walsh, and

through Assistant United States Attorney Patricia Davies, hereby responds to Defendant

Fricosu’s Motion for Discovery - Seized Hard Drive (Document #101). In support of its

response, the Government states as follows:

I. Summary of Position

Defendant’s motion asserts that she seeks an order requiring the government to

comply with a previously entered order. (Doc. 101, pg. 1) The government would not

fail or refuse to comply with any order it understood to have been issued, and has not

done so here. Upon learning of this motion, the undersigned Assistant United States

Attorney immediately requested that an expedited transcript of the January 19, 2011


000040


hearing referenced in defendant’s Motion be prepared,1 and expects to receive that

transcript in the near future. In the meantime, the government hereby responds to this

motion, objecting to the copying of the encrypted drive and suggesting that:

(1) the defendant may inspect the encrypted seized hard drive on a stand-alone

computer located at the offices of the Federal Bureau of Investigation; and

(2) defendant should not be permitted a copy of the encrypted drive for the

reasons discussed below; namely, (a) inspection satisfies defendant’s rights to

discovery; and (b) the encrypted drive may contain contraband.

II. Summary of Relevant Factual Background

On May 14, 2010, agents of the Federal Bureau of Investigation, Internal

Revenue Service - Criminal Investigation Division and Secret Service executed a

federal search warrant at 10436 Ross Lake Drive, Peyton, Colorado, issued in 10-sw-

5230-MJW. Among the items seized were documents pertaining to allegedly fraudulent

real estate transactions and other bank fraud later charged in the indictment, and

computers and computer storage devices. See Document 54, Exhibit B.

Thereafter, computer forensic examiners at the Rocky Mountain Regional

Computer Forensic Laboratory (“RMRCFL”) attempted to create forensic images of the

seized computers so that they could be reviewed for items identified in the search

warrant. Two of the seized computers were encrypted and delays followed when the

1The relevant portion of the January 19, 2011 hearing is expected to be deliveredto the U.S. Attorney’s Office within one (1) week from April 28th.

2


000041


RMRCFL sought to overcome the encryption, ultimately succeeding in “decrypting” one

of the seized computers. The remaining encrypted computer is at issue here (“Subject

Computer”).2 Additionally, investigating agents became concerned that a separate

warrant authorizing search and seizure of additional items was needed with respect to

the Subject Computer, and on August 24, 2010, they obtained the warrant issued in 10-

sw-05377-MJW.

On September 30, 2010, a federal grand jury for this district returned an

indictment, charging Ramona Fricosu and co-defendant Scott Whatcott with federal

criminal violations of bank fraud (18 U.S.C. § 1344); wire fraud (18 U.S.C. § 1343); false

statements to financial institutions (18 U.S.C. § 1014); and money laundering (18

U.S.C. § 1957), and including forfeiture allegations (Document 1). Thereafter, the

government produced discovery. Both defendants moved for a declaration of

complexity and/or for continuances of trial and other deadlines, which relief was

granted. (Documents 20, 30, 37, 40).

2The seized computers are as follows: Six computers were seized. The computers are listed on the property receipt that

was left at 10436 Ross Lake Drive with a copy of the search warrant.1) Toshiba Laptop – Satellite L455-55000 ---- laptop returned to Ramona Fricosu on

3/25/11,2) Toshiba Laptop – Satellite M305 (encrypted) [Subject Computer],3) HP Pavilion s/n CNF8161088 -- data copied to hard drive for defense,4) Dell Dimension 2350 -- data copied to hard drive for defense,5) Gateway GT5 426E -- data copied to hard drive for defense,6) HP Pavilion s/n CNH7091FGM (encrypted) – decrypted -- data copied to hard

drive for defense.

3


000042


As the case proceeded, investigating agents began reviewing the imaged

computers but became concerned that the media might contain attorney-client

privileged information, and alerted government counsel. In December 2010, the

undersigned AUSA contacted defense counsel to discuss means by which the seized

computers could be reviewed without exposing the prosecution team to potentially

privileged materials. The government proposed a taint review process whereby agents

or AUSAs not involved in the instant case would perform keyword searches and review

for possible privileged items. Defendant Whatcott’s attorney promptly responded to

resolve the issue. At the time of the January 19th hearing, the government was awaiting

resolution of this privilege issue so that the agents could continue their review of the

imaged computers.

In early January 2011, defendant Fricosu moved for return of items seized under

search warrant (document 54). The government responded, identifying: (1) items it

would return based on the investigating agents’ determination that the items were no

longer needed in the prosecution; (2) additional items the government would supply

copies of, including images of computer media as soon as defendants provided hard

drives for computer media to be imaged on; and (3) certain items that were

instrumentalities or fruits of the charged crimes. (Document 72, Att. 1). Prior to the

hearing, the undersigned AUSA had been advised that RMRCFL personnel did not

believe that the Subject Computer, which was “whole disk” encrypted could be imaged

without an unencrypted version being available.

4


000043


Multiple motions were argued during the January 19, 2011 hearing, including

hearing on Defendant’s Motion for Return of Property (Document 54). The undersigned

AUSA advised the court, consistent with information given to her, that the encrypted

drive could not be imaged. The government also opposed defendant’s demand that the

computers be returned, arguing that the computers were “instrumentalities” of

defendants’ alleged crimes and thus not subject to return. Thus, the government agreed

to have forensic images made of the four unencrypted computers and, on information

and belief (awaiting the transcript), the court so ordered.3

Following the hearing, the undersigned AUSA contacted defendant Fricosu’s

attorney several times to request that defendant Fricosu pick up the “to be returned

items” from the FBI, and to determine if defendant would supply a hard drive to the

government on which the imaged computers could be copied. Defendant Fricosu

ultimately picked up the items from the FBI on March 25, 2011. Defendant Fricosu did

not provide a hard drive for copies of the imaged computers, advising through counsel

that she would rely on co-defendant counsel’s copy.

On or about March 17, 2011, the government advised defense counsel that

further research by FBI computer forensic personnel had determined that the encrypted

computer could be copied, that is, although a “processed image” could not be made, a

3To be clear, because the undersigned AUSA had been advised that theencrypted drive could not be imaged and so advised the magistrate court, the hearingdid not further address the merits of whether the encrypted drive should be copied fordefendants. Had the issue been before the court, the government would have opposedfor the reasons stated herein.

5


000044


forensic copy could be made. The government thereafter requested that the defendants

agree that, in exchange for “act of production immunity as to their possession and

knowledge of the password,” they provide the password so that an unencrypted version

of the Subject Computer could be copied and provided to the defense. Defendant

Fricosu did not respond to this request, and instead the instant motion followed.

The RMRCFL has made forensic images of the unencrypted seized computers,

and on April 18, 2011, counsel for defendant Whatcott picked up the hard drive

containing those forensic images.

The government objects to providing a copy of the encrypted computer for three

reasons. First, due to the encryption, the government does not currently know the

contents of the Subject Computer and is troubled at the possibility of providing

contraband to the defendants. Second, the defendants’ crime resulted in their gain and

victims’ losses of over $900,000 – monies which remain unaccounted for, which are the

subject of forfeiture allegations and which the Subject Computer may hold information

regarding. Third, in two separate warrants, this Court found probable cause and

authorized the search of the Subject Computer. The encryption has thwarted the

court’s orders. The government submits that allowing defendants’ access to the Subject

Computer, as discussed below, satisfies the defendants’ rights under Rule 16.

Providing defendants with a full copy exceeds the relief that is appropriate here.

6


000045


III. Allowing Inspection But No Copying of the Subject Computer Is Proper

The government submits that allowing inspection of the Subject Computer

facilitates defendants’ rights to discovery while not providing possible contraband to

defendants. Fed.R.Crim.P. 16(a)(1).

No case authority found for this briefing addresses the issue of how the

government satisfies its discovery obligations where encrypted computer media from a

defendant is at issue. However, other courts have concluded that providing defendant

with access to seized hard drives in discovery is sufficient. United States v. Cameron,

672 F.Supp.2d 133, 140 (D. Me. 2009) (denying defendant’s motion for discovery

regarding computers seized from him during investigation of alleged transportation,

receipt and possession of child pornography, noting that offer of inspection complies

with discovery obligations).4 Here, the encrypted state of the computer poses technical

issues of “first impression” for the undersigned, the investigating agents and the

RMRCFL. However, the undersigned AUSA is now advised that the encrypted drive

can be mounted in a stand-alone computer at the offices of the FBI.5 Defendant

Fricosu will be afforded privacy and sufficient time to inspect the encrypted drive.

4The Cameron court notes that inspection only is appropriate based on thepossible contraband (i.e., child pornography) content. Although understanding that thealleged crimes here differ from Cameron, the government notes that different types ofcontraband may be at issue in this case given the charged offenses and items found onother seized computers.

5As a “stand alone,” the computer used for this purpose will not be connected toother FBI computers that could be used to copy the unecrypted data and will not beconnected to a printer by which defendants could copy items from the computer.

7


000046


IV. Conclusion

The government submits that the defendant’s Motion for Discovery - Seized Hard

Drive, demanding a copy of the encrypted drive should be denied because:

(1) allowing defendant access to the encrypted drive properly satisfies her rights

under Rule 16;

(2) providing a copy of the encrypted drive may provide defendants with

contraband; and

(3) providing a copy of the encrypted drive to defendants rewards defendants’

continued thwarting of the court’s orders authorizing search of the encrypted drive.

WHEREFORE, the United States respectfully requests that this Court deny

Defendant Fricosu’s Motion for Discovery - Seized Hard Drive (Document 101).

Dated this 2nd day of May, 2011.


By: s/Patricia Davies PATRICIA DAVIESAssistant United States AttorneyUnited States Attorney’s Office1225 17th Street, Suite 700Denver, CO 80202Phone: 303/454-0100Fax: 303/[email protected] for Government

8


000047



I hereby certify that on this 2nd day of May, 2011, I electronically filed the foregoingGovernment’s Response Regarding Defendant Fricosu’s Motion for Discovery - Seized HardDrive (Document # 101) with the clerk of the Court using the CM/ECF system which will sendnotification of such filing to the following email addresses:

Mark Johnson [email protected]

Philip L. Dubois [email protected]

Tonya Andrews [email protected]

Martha Paluch [email protected]

By: s/ Maureen Carle MAUREEN CARLE

Legal Assistant1225 Seventeenth Street, Suite 700Denver, Colorado 80202Telephone: (303) 454-0100Facsimile: (303) 454-0406E-mail: [email protected]

9


000048



000049



000050



000051





Plaintiff,v.

2. RAMONA CAMELIA FRICOSU,a/k/a Ramona Smith,

Defendant.

AMENDED GOVERNMENT’S REPLY TO AMICUS CURIAE BRIEF OF ELECTRONICFRONTIER FOUNDATION IN SUPPORT OF DEFENDANT FRICOSU’S OPPOSITION

TO GOVERNMENT’S APPLICATION UNDER THE ALL WRITS ACT REQUIRINGDEFENDANT TO ASSIST IN THE EXECUTION OF PREVIOUSLY ISSUED SEARCH

WARRANTS (Docket #172-1) and MS. FRICOSU’S RESPONSE TO DOCUMENT 111(Docket #174)

The United States of America, by and through the undersigned Assistant United

States Attorneys, and the undersigned Department of Justice Attorney, files this

Amended Reply to Amicus Curiae Brief of Electronic Frontier Foundation in Support of

Defendant Fricosu’s Opposition to Government’s Application under the All Writs Act

Requiring Defendant to Assist in the Execution of Previously Issued Search Warrants

(Docket #172-1) and Ms. Fricosu’s Response to Document 111 (Docket #174). This

amended filing reflects the fact of consultation participation with a lawyer from the

Department of Justice whose signature has been added. The government replies as

follows:


000052


A. The All Writs Act authorizes this Court to issue orders upholding its searchwarrants

Ms. Fricosu challenges the appropriateness of using an All Writs Act order, 28

U.S.C. § 1651(a). However, the Supreme Court has explicitly endorsed the use of the

All Writs Act to ensure that a court’s search warrants are not frustrated. The Court held

that the All Writs Act permits federal courts to “issue such commands… as may be

necessary or appropriate to effectuate and prevent the frustration of orders it has

previously issued in its exercise of jurisdiction otherwise obtained.” United States v.

New York Tel. Co., 434 U.S. 159, 172 (1977). New York Telephone explicitly applied to

a search warrant; the Court even explained how Rule 41 (the Federal Rule of Criminal

Procedure governing the issuance of search warrants) applied. Id. at 168-70.

While Ms. Fricosu suggests that New York Telephone Company was the only

case to apply the All Writs Act to search warrants, (Doc. 174 at 2), in fact the use of the

All Writs Act in support of search warrants is well-established. In the years before

Congress enacted the Pen Register and Trap and Trace Statute in 1986, see 18 U.S.C.

§§ 3121 et seq., the government often used the All Writs Act in support of search

warrants to compel telephone companies to assist in the “search” for dialed phone

numbers. For example, in Application of United States for an Order Authorizing an In-

Progress Trace of Wire Communications over Tel. Facilities, 616 F.2d 1122 (9th Cir.

1980), the Court held that “the Order of the district court was a proper exercise of its

discretion under Rule 41 and the All Writs Act.” Id. at 1132. See also Application of

United States for Order Authorizing Installation of Pen Register or Touch-Tone Decoder

and Terminating Trap, 610 F.2d 1148, 1155 (3d Cir. 1979) (“The telephone companies

-2-


000053


in the present cases fall within the reach of the district courts’ All Writs Act powers…”);

Michigan Bell Tel. Co. v. United States, 565 F.2d 385, 389 (6th Cir. 1977) (“the district

court had authority under the All Writs Act, 28 U.S.C. § 1651(a), to require the

telephone company to provide the necessary assistance for the tracing of calls”); cf.

United States v. Illinois Bell Tel. Co., 531 F.2d 809, 814 (7th Cir. 1976) (“analogous

authority for the proposition that the telephone company cannot frustrate the exercise of

the district court’s order by refusing to make available its facilities and know-how, is the

All Writs Act”).

The same concerns that motivated the use of the All Writs Act in the pen register

cases apply here, as well. The Supreme Court was concerned that “without the

Company’s assistance there is no conceivable way in which the surveillance authorized

by the District Court could have been successfully accomplished.” New York Tel. Co.,

434 U.S. at 175. So, too, with the warrants issued by this Court: barring a triumph in

cryptanalysis, without Fricosu’s assistance, there is no conceivable way in which the

search authorized by this Court could be successfully accomplished. Just as the Court

may use its authority to ensure that grand jury subpoenas are not frustrated, see

Shillitani v. United States, 384 U.S. 364, 370-71 (1966), it also may use its authority

under the All Writs Act to ensure that search warrants are not frustrated.

B. The Application seeks the decrypted contents of the computer, not information from Ms. Friscou’s head

Ms. Fricosu’s opposes the Application by characterizing it as requesting an

invasion into her mind. She states that the Application would demand a “key” that is “in

Ms. Fricosu’s head,” (Doc. 174 at 3), analogizing it directly to the “compelled disclosure

-3-


000054


of a safe’s combination.” To the contrary, the applied-for order would not give the

government access to anything “in Ms. Fricosu’s head,” (Doc. 174 at 3); nor would it

require Fricosu to “disclose” anything “that exists in her mind,” (Doc. 172-1 at 6). It

does not require her to disclose the key to the government, or to anyone else. The

Application requires only that Fricosu “make available the unencrypted contents of the

Subject Computer.” (Doc. 111 at 2). As of today, the government does not know the

encryption key. Should the Court grant the order, the government still would not know

the encryption key. Ms. Fricosu argues that the proposed order is closer to “the

compelled disclosure of a safe’s combination” than it is to her being “forced only to

provide ‘the key to a strongbox.’” (Doc. 174 at 3). To the contrary, the government

seeks the strongbox’s contents, not the ability to open the strongbox for itself.

While Ms. Fricosu describes this Application as unprecedented, (Doc. 174 at 4),

Amicus Electronic Frontier Foundation describes the Application as containing an

“aggressive argument” with “far-reaching consequences.” (Doc. 172-1 at 1). The Fifth

Amendment privilege against self-incrimination is not a privilege against disclosing data

in an unencrypted format. For example, in a publication entitled “Know Your Rights!,”

the Electronic Frontier Foundation answered the question “If the police ask for my

encryption keys or passwords, do I have to turn them over?,” this way:

No. The police can’t force you to divulge anything. However, a judge or agrand jury may be able to. The Fifth Amendment protects you from beingforced to give the government self-incriminating testimony. If turning overan encryption key or password triggers this right, not even a court canforce you to divulge the information. But whether that right is triggered is adifficult question to answer. If turning over an encryption key or passwordwill reveal to the government information it does not have (such asdemonstrating that you have control over files on a computer), there is astrong argument that the Fifth Amendment protects you. If, however,

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turning over passwords and encryption keys will not incriminate you, thenthe Fifth Amendment does not protect you. Moreover, even if you havea Fifth Amendment right that protects your encryption keys orpasswords, a grand jury or judge may still order you to disclose yourdata in an unencrypted format under certain circumstances. If youfind yourself in a situation where the police are demanding that you turnover encryption keys or passwords, let EFF know.

Hanni Fakhoury, Know Your Rights!, ELECTRONIC FRONTIER FOUNDATION 2-3

(June 2011), https://www.eff.org/files/EFF_Know_Your_Rights_2011.pdf (footnotes

removed; bold italics added).

This Application falls exactly into that latter category: It does not require Ms.

Fricosu to turn over an encryption key, or to “disclose” or testify to anything. The

proposed order would require the production of data in an unencrypted format. EFF’s

“Know Your Rights!” publication correctly states that a judge may properly order the

production of unencrypted data consistent with the Fifth Amendment.

C. The Fifth Amendment privilege against self-incrimination does not apply tothe production of voluntarily created, pre-existing documents

Amicus, though not Ms. Fricosu, argues that “the fact the witness might type the

information into a keyboard rather than speak it aloud” makes no difference. (Doc. 172-

1 at 7). But the Supreme Court has, to the contrary, attached great importance to the

distinction between a compelled communication and a compelled production of pre-

existing documentary evidence.

The Fifth Amendment’s protection against self-incrimination “applies only when

the accused is compelled to make a testimonial communication that is incriminating.”

Baltimore City Dept. of Social Services v. Bouknight, 493 U.S. 549, 554 (1990)

(emphasis added). A communication is testimonial when it “explicitly or implicitly,

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relate[s] a factual assertion or disclose[s] information.” Id. A communication is non-

testimonial when a person is “not required ‘to disclose any knowledge he might have,’

or ‘to speak his guilt.’” United States v. Doe, 487 U.S. 201, 210 (1988) (hereinafter, Doe

II) (quoting United States v. Wade, 388 U.S. 218, 222-23 (1967)). However, the self-

incrimination protection applies only to communications: “Unless some attempt is made

to secure a communication—written, oral or otherwise—upon which reliance is to be

placed as involving [the accused’s] consciousness of the facts and the operations of his

mind in expressing it, the demand made upon him is not a testimonial one.” Id.

(emphasis added).

Thus, “certain acts, though incriminating, are not within the privilege” against self-

incrimination, because they are not communications at all. Id. These include furnishing

a blood sample, providing a handwriting exemplar, providing a voice exemplar, standing

in a lineup, wearing particular clothing, id. (citing cases), and producing a child in

response to a court order, see Bouknight, 493 U.S. at 559.

The Supreme Court has also treated the compelled production of pre-existing,

voluntarily created documents as a non-testimonial act—except to the extent that the

act of producing the documents might incriminate the defendant, an issue dealt with

below. See United States v. Doe, 465 U.S. 605, 611-612 (1984) (hereinafter, Doe I).

Doe I involved grand jury subpoenas served on the owner of several small

proprietorships, demanding the production of business records. The subpoena

recipient moved to quash under the Fifth Amendment, arguing that the contents of the

records could incriminate him. The Supreme Court rejected that argument, holding that

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so long as a defendant “does not contend that he prepared the documents involuntarily

or that the subpoena would force him to restate, repeat, or affirm the truth of their

contents,” then “the contents of those records are not privileged.” Id. at 611-12; see

also In re Foster, 188 F.3d 1259, 1269 (10th Cir. 1999). Ms. Fricosu does not claim

that she saved files to her hard drive involuntarily. The applied-for order also does not

require her to “restate, repeat, or affirm the truth of” any statements in those files.

Thus, requiring her to produce decrypted data is consistent with the Fifth Amendment.

The Court is on even safer Fifth Amendment ground here, because the

government has obtained the evidence through a search warrant, not a grand jury

subpoena. Evidence obtained through search warrants does not implicate the self-

incrimination clause because search warrants do not compel individuals to make

statements. In Andresen v. Maryland, 427 U.S. 463 (1976), the Supreme Court

considered whether the search of the defendant’s offices for business records, their

seizure, and subsequent introduction into evidence violated the Fifth Amendment. The

court held that the Fifth Amendment did not apply, because the defendant “was not

asked to say or to do anything. The records seized contained statements that petitioner

had voluntarily committed to writing.” Id. at 473; see also Fisher, 425 U.S. at 407-408

(“any notion that ‘testimonial’ evidence may never be seized and used in evidence is

inconsistent with” cases upholding wiretaps). Here, too, the applied-for order would use

as the source of evidence only material seized with a warrant; it would not make use of

any compelled statements.

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D. Ms. Fricosu’s act of producing the unencrypted hard drive contents would not incriminate her, especially given the proposed act-of-production immunity

In limited circumstances, the act of turning over a document could inherently

communicate incriminating facts and thus be protected by the Fifth Amendment. United

States v. Hubbell, 530 U.S. 27, 40-41 (2000). “[T]he testimonial aspect of a response

to a subpoena duces tecum does nothing more than establish the existence,

authenticity, and custody of items that are produced.” Id. However, when the

“existence and location” of documents under a subpoena are a “foregone conclusion”

and the witness “adds little or nothing to the sum total of the Government’s information”

by conceding he has them, the privilege against self-incrimination does not apply.

United States v. Fisher, 425 U.S. 391, 411 (1976). That is the case here.

1. Ms. Fricosu’s production of the unencrypted documents would not be a testimonial act of production

Ms. Fricosu argues that complying with the order would be a testimonial act of

production, because “the existence and location of incriminating evidence on the

encrypted hard drive are not a foregone conclusion;” moreover, she argues that “the

government does not know that the computer belongs to or was used by Ms. Fricosu or

that she had or has access to the drive.” (Doc. 174 at 3). Both her premises and

conclusions are wrong.

Her premises are wrong because, as explained in the Application, the

government does have evidence showing to whom the Subject Computer belongs and

what it contains: the Subject Computer “was found on the floor of her bedroom sitting

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on top of its laptop case. And, as set forth in the application and affidavit in 10-sw-

05377-MJW, Ms. Fricosu discussed the Subject Computer with co-defendant and ex-

spouse Scott Whatcott while he was incarcerated (and the telephone call was being

recorded) and referenced specific information relevant to the case that the Subject

Computer contains.” (Doc. 111 at 5).

Yet even if the government were ignorant of these facts, Ms. Fricosu’s argument

still fails because she confuses what the government could learn from the act of

production with what the government could learn from the contents of what is

produced. The act of production is privileged, see Doe I, 465 U.S. at 612, but the

contents of production are not, see id. at 610-12; United States v. Hubbell, 530 U.S. 27,

40 (2000) (“The ‘compelled testimony’ that is relevant in this case is not to be found in

the contents of the documents produced in response to the subpoena. It is, rather, the

testimony inherent in the act of producing those documents.”); In re Foster,188 F.3d

1259, 1269 (10th Cir. 1999) (“The Fifth Amendment does not shield from discovery the

contents of any documents Foster voluntarily created, even if the contents incriminate

him.”). Both Ms. Fricosu and Amicus erroneously focus their “foregone conclusion”

analysis on the contents of the documents produced, rather than on the act of

producing them. While conclusions the government might draw from the contents of

the laptop certainly are not foregone, the limited conclusions that the government might

draw from Ms. Fricosu’s producing those contents are foregone. An act of production

might reveal “the existence, authenticity, and custody of items,” Hubbell at 40, but the

existence, authenticity, and custody of the decrypted data are already foregone

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conclusions because the government possesses the laptop, having seized it with a

lawful search warrant, and already has ample evidence linking Ms. Fricosu to the

laptop. Thus, the government knows the data exists, and knows where it is.

If it were really the case that the government had to already know the contents of

the evidence before the defendant produced it, (Doc. 174 at 4), then the

act-of-production privilege would swallow the authority, recognized by the Supreme

Court, to compel the production of pre-existing voluntarily created incriminatory

evidence. See Doe I, 465 U.S. at 611-612; United States v. Fisher, 425 U.S. 391

(1976). This is also exactly the reasoning rejected by the district court in In re Boucher,

2009 WL 424718 (D. Vt. 2009). There, the court clarified that the existence, location,

and authenticity of the contents of an encrypted drive in the government’s possession

were foregone conclusions. Id. at *3-*4. This was so because the government “knows

of the existence and location of the [encrypted] drive and its files.” Id. at 3. Although

that knowledge in Boucher was additionally confirmed by an officer’s “view[ing] the

contents of some of the [encrypted] drive’s files,” id., the Boucher court pointedly did not

rely on the fact, instead noting that “Second Circuit precedent, however, does not

require that the government be aware of the incriminatory contents of the files; it

requires the government to demonstrate ‘with reasonable particularity that it knows of

the existence and location of subpoenaed documents.’” Id. at *3 (quoting In re Grand

Jury Subpoena, 1 F.3d 87, 93 (2d Cir. 1993)). Boucher sets a standard that is met

here. The government knows the “existence” of decrypted data, because it knows of

the existence of encrypted data, and the one is generated from the other. The

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government knows the “location” of decrypted data, because the laptop’s location is

known. The act of producing the contents of that encrypted drive would, therefore,

merely be cumulative evidence that would support what the government already

knows—in other words, it would support foregone conclusions.

The requirement that Ms. Fricosu produce all of the encrypted laptop

distinguishes this case from United States v. Hubbell, 530 U.S. 27 (2000). In Hubbell,

the Supreme Court held that a defendant’s assembly of documents in response to a

grand jury subpoena violated his privilege against self-incrimination. The Court held

that the subpoena required not just documents, but “respondent’s assistance both to

identify potential sources of information and to produce those sources.” Id. at 41. This

was “tantamount to answering a series of interrogatories asking a witness to disclose

the existence and location of particular documents fitting certain broad descriptions,”

id.; hence, “[i]t was unquestionably necessary for respondent to make extensive use of

‘the contents of his own mind’ in identifying the hundreds of documents responsive to

the requests in the subpoena,” id. at 43. By comparison, the applied-for order here

would not require Fricosu to select responsive documents, or answer anything

resembling an interrogatory; it requires her to provide the entire contents of a single

hard drive, particularly described in a search warrant approved by a detached and

neutral magistrate. While Ms. Fricosu might use the contents of her mind in the course

of complying (as would, for example, “an accused… required to submit a handwriting

exemplar,” Fisher, 425 U.S. at 411) the order would not require her to disclose those

contents.

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Amicus (although not Ms. Fricosu) additionally argues that Ms. Fricosu’s act of

producing the decrypted hard drive would incriminate her because “The act would be an

admission that she had control over the computer and the data stored on it before it

was seized from her residence.” (Doc. 172-1 at 7). But custody and control were

foregone conclusions: an agent executing a search warrant found the computer not

only in Ms. Fricosu’s home, but on the floor of her personal bedroom. Additionally, Ms.

Fricosu discussed the Subject Computer with co-defendant and ex-spouse Scott

Whatcott while he was incarcerated (and the telephone call was being recorded) and

referenced specific information relevant to the case that the Subject Computer contains.

Hence, it is a foregone conclusion that Ms. Fricosu had sufficient control over the

computer to decrypt and use it.

2. The grant of act-of-production immunity would, alternatively, satisfy the act-of-production privilege

Even if the Court were to conclude that producing the contents of the decrypted

drive would be a testimonial act of production, the United States has, with its

application, asked the court to grant Ms. Fricosu act-of-production immunity.

Consistent with that immunity grant, Ms. Fricosu’s acts of decrypting the drive and

making its contents available could not “be used against [her] in any criminal case.” 18

U.S.C. § 6002. Thus, even to the extent that her act of decrypting the hard drive might

demonstrate that she had control over it, or that its contents were authentic, the United

States would be prohibited from using that act-of-production evidence at trial.

Consequently, Ms. Fricosu may not withhold the act-of-production on Fifth Amendment

grounds. See Kastigar v. United States, 406 U.S. 441 (1972).

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The immunity would also prevent the government from using “evidence derived

directly and indirectly” from the act of production. Id. at 453; see also 18 U.S.C. § 6002.

Ms. Fricosu argues that this means she must be given immunity “preventing the

government’s use of incriminating information derived… from the compelled decryption

of the hard drive.” (Doc. 174 at 4). Amicus, similarly, seems to characterize the

decrypted contents of the hard drive as evidence “derived” from the act of production.

Ms. Fricosu and Amicus again confuse the act of production with the contents of what is

produced. Their argument is inconsistent with Supreme Court cases holding that the

Fifth Amendment permits the government to subpoena pre-existing evidence from both

defendants and third parties. See Baltimore City Dept. of Social Services v. Bouknight,

493 U.S. 549, 554 (1990); United States v. Doe, 465 U.S. 605, 611-612 (1984); United

States v. Fisher, 425 U.S. 391 (1976). Had the Supreme Court believed the contents of

those productions were all “derived” from the acts of producing them, those cases

would have been decided differently. Under those cases, should the Court grant the

Application, then the decrypted contents of Ms. Fricosu’s laptop would not be

information impermissibly “derived” from a testimonial act of production—just as the

contents of paper business records are not information impermissibly “derived” from the

act of their production, and facts learned from a handwriting exemplar are not

impermissibly “derived” from the act of producing the exemplar.

E. The privilege against self-incrimination must be interpreted narrowly and isnot a mechanism to protect abstract privacy

Ms. Fricosu asks for a “liberal construction” of the self-incrimination clause, (Doc.

174 at 4), and Amicus similarly asks the court to decide the legal question presented “in

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a way that recognizes the substantial benefits of encryption to safeguard the security

and privacy of digital information stored on computers,” (Doc. 172-1 at 13). But the

Supreme Court has specifically cautioned against expansive readings of the self-

incrimination clause: all privileges are “exceptions to the demand for every man’s

evidence.” United States v. Nixon, 418 U.S. 683, 710 (1974). Because privileges

deprive the justice system of truthful evidence, the Court has cautioned that they should

be “not lightly created nor expansively construed, for they are in derogation of the

search for truth.” Id.

That encryption has “substantial benefits” does not mean that courts should

never require individuals to produce decrypted data. The government seeks this

application in connection with a search warrant, and relies upon the court’s discretion

under the All Writs Act to compel Ms. Fricosu to produce decrypted data. This

Application occurs only after a thorough investigation, supported by probable cause,

and intermediated by a judicial officer at two different points (the warrant and the All

Writs Act application). Granting the application, then, will not dissuade responsible

individuals from using encryption to safeguard trade secrets or sensitive customer

information; it is understood that this type of order is, like a search warrant, an event

that occurs only when “the individual’s interest in privacy must give way to the

magistrate’s official determination of probable cause.” United States v. Ross, 456 U.S.

798, 823 (1982). Granting the application would, however, recognize law

enforcement’s legitimate needs to obtain evidence with search warrants—needs that

encryption would otherwise thwart.

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Moreover, the Supreme Court has cautioned that the Fifth Amendment’s self-

incrimination clause is not a vehicle to protect abstract privacy. The Framers

“addressed the subject of personal privacy directly in the Fourth Amendment,” but “did

not seek in still another Amendment the Fifth to achieve a general protection of privacy

but to deal with the more specific issue of compelled self-incrimination.” Fisher, 425

U.S. at 400. While the prospect of subjecting a hard drive to forensic examination

unquestionably implicates privacy concerns, those concerns were addressed when the

government obtained search warrants. The question presented by this Application is

whether Ms. Fricosu may frustrate those warrants.

CONCLUSION

The government requests the application be granted.

Respectfully submitted this 21 day of July, 2011.st


By: s/Patricia Davies PATRICIA DAVIESAssistant United States AttorneyUnited States Attorney’s Office1225 17 Street, Suite 700th

Denver, CO 80202Phone: 303/454-0100Fax: 303/[email protected]

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s/Jeremy Sibert JEREMY SIBERTAssistant United States Attorney1225 Seventeenth Street, Suite 700Denver, Colorado 80202Telephone: (303) 454-0100Facsimile: (303) 454-0406E-mail: [email protected]

s/Josh Goldfoot JOSH GOLDFOOTSenior CounselComputer Crime & Intellectual PropertySection, Criminal DivisionU.S. Dept. of Justice1301 New York Ave NW, Suite 600Washington, D.C. 20530Telephone: (202) 514-1026Facsimile: (202) 514-6113E-mail: [email protected]

Attorneys for the Government

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I hereby certify that on this 21 day of July, 2011, I electronically filed thest

foregoing AMENDED GOVERNMENT’S REPLY TO AMICUS CURIAE BRIEF OFELECTRONIC FRONTIER FOUNDATION IN SUPPORT OF DEFENDANTFRICOSU’S OPPOSITION TO GOVERNMENT’S APPLICATION UNDER THE ALLWRITS ACT REQUIRING DEFENDANT TO ASSIST IN THE EXECUTION OFPREVIOUSLY ISSUED SEARCH WARRANTS (Docket #172-1) and MS. FRICOSU’SRESPONSE TO DOCUMENT 111 (Docket #174) with the clerk of the Court using theCM/ECF system which will send notification of such filing to the following emailaddresses:

Tonya Shotwell Andrews [email protected],[email protected],[email protected],[email protected],[email protected],[email protected],[email protected],[email protected]

Patricia W. Davies [email protected],[email protected],[email protected]

Philip L. Dubois [email protected],[email protected]

Hanni Meena Fakhoury [email protected],[email protected]

Josh Aaron Goldfoot [email protected]

Marcia Clare Hofmann [email protected],[email protected]

Mark Cameron Johnson [email protected]

Martha Ann Paluch [email protected],[email protected],[email protected],[email protected],[email protected],[email protected],[email protected],[email protected],[email protected]

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and a copy mailed to the following:

Electronic Frontier FoundationElectronic Frontier Foundation454 ShotwellSan Francisco, CA 94110

s/Valerie Nielsen VALERIE NIELSENLegal AssistantU.S. Attorney’s Office1225 Seventeenth Street, Suite 700Denver, Colorado 80202Telephone: (303) 454-0100Fax: (303) 454-0406E-mail: [email protected]

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Judge Robert E. Blackburn

Date: July 22, 2011

Deputy Clerk: Nel SteffensCourt Reporter: Suzanne Claar

Criminal Action No. 10-cr-00509-REB

Parties: Counsel:


Plaintiff,

v.

Patricia DaviesJeremy Sibert

2. RAMONA CAMELIA FRICOSU,

Defendant.

Phillip Dubois

COURTROOM MINUTES

Motion Hearing on #101 and #111

8:35 a.m. Court in session.

Appearances of counsel. Also seated at government’s table is FBI Special Agent, ScottSchons.

Defendant is present on bond.

Opening statements by the court.

8:38 a.m. Opening argument by Ms. Davies.

Exhibit Offered: Government’s Exhibit 1

Exhibit Admitted: Government’s Exhibit 1 (for this specific hearing only)


000070


9:00 a.m. Argument by Mr. Dubois.

9:21 a.m. Rebuttal argument by Ms. Davies.

Exhibit Offered: Government’s Exhibit 2

Court will issue its written ruling as soon as practicable.

9:35 a.m. Court in recess.

Total time in court: 01:00

Hearing concluded.


000071


1 This minute order is issued pursuant to the express authority of the Honorable Robert E. Blackburn,United States District Judge for the District of Colorado.





Plaintiff,v.


Defendant.

MINUTE ORDER1

On July 27, 2011, the court conducted a telephonic setting conference to set anevidentiary hearing on the government’s Applicationn Under the All Writs ActRequiring Defendant Fricosu To Assist in The Execution of Previously IssuedSearch Warrants [#111] filed May 6, 2011. After conferring with counsel and with theirconsent

IT IS ORDERED as follows:

1. That on October 19, 2011, commencing at 9:00 a.m., the court shall conductan evidentiary hearing on the government’s Applicationn Under the All Writs ActRequiring Defendant Fricosu To Assist in The Execution of Previously IssuedSearch Warrants [#111] filed May 6, 2011. The court reserves the remainder of theday for this hearing; and

2. That the telephonic setting conference set for August 2, 2011, is VACATED.

Dated: July 27, 2011


000072


1 This minute order is issued pursuant to the express authority of the Honorable Robert E. Blackburn,United States District Judge for the District of Colorado.





Plaintiff,v.


Defendant.

MINUTE ORDER1

On October 19, 2011, the court conducted a telephonic setting conference toreset the hearing on the government’s Application Under The All Writs Act RequiringDefendant Fricosu To Assist in the Execution of Previously Issued SearchWarrants [#111] filed May 6, 2011. After conferring with counsel and with theirconsent,

IT IS ORDERED that on November 1, 2011, commencing at 1:30 p.m., the courtshall conduct an evidentiary hearing on government’s Application Under The All WritsAct Requiring Defendant Fricosu To Assist in the Execution of Previously IssuedSearch Warrants [#111] filed May 6, 2011. The court reserves the remainder of theday for this hearing.

Dated: October 19, 2011


000073




Date: November 1, 2011

Deputy Clerk: Nel SteffensCourt Reporter: Tracy Weir


Parties: Counsel:


Plaintiff,

v.



Defendant.

Philip Dubois

COURTROOM MINUTES

Hearing on Government’s Application [#111]

1:45 p.m. Court in session.

Appearances of counsel. Also seated at government’s table is FBI Special Agent, ScottShons.

Defendant is present on bond.


Court’s sequestration order is in effect.

Ms. Davies asks that FBI agent Shons be allowed to remain at government’s table asadvisory witness.


000074


Response by Mr. Dubois.

Reply by Ms. Davies.


1. That the government’s request that Mr. Shons be allowed to remain atgovernment’s table as advisory witness, is GRANTED and that thedefendant’s objection is OVERRULED.

1:50 p.m. Opening statement/argument by Ms. Davies.

Mr. Dubois declines the opportunity for opening statement/argument.

1:54 p.m. Government’s witness, Scott Schons, called and sworn.

Direct examination by Ms. Davies.

Exhibits Identified: Government’s Exhibit 10, Government’s Exhibit 2, Government’sExhibit 9, Government’s Exhibit 8, Government’s Exhibit 1, Government’s Exhibit 3,Government’s Exhibit 2A, Government’s Exhibit 2B, Government’s Exhibit 6A,Government’s Exhibit 6B, Government’s Exhibit 7

Exhibits Admitted: Government’s Exhibit 2; Government’s Exhibit 9; Government’sExhibit 8;Government’s Exhibit 1; Government’s Exhibit 3; Government’s Exhibit 2A,Pages 2-4; Government’s Exhibit 2B, Government’s Exhibit 6A, Government’s Exhibit6B, Government’s Exhibit 7, Page 1

Parties stipulate that Room M on May14, 2010, was the bedroom of Ms. Fricosu.

3:10 p.m. Court in recess.


Government’s witness Schons has resumed the witness stand.

Ms. Davies offers authority as discussed prior to the break.

Continued direct examination by Ms. Davies.

Exhibits Identified: Government’s Exhibit 7, Page 3; Government’s Exhibit 4A;Government’s Exhibit 4B, Pages 11 & 12

Exhibit Admitted: Government’s Exhibit 7, Page 3; Government’s Exhibit 4A;Government’s Exhibit 4B, Page 12, Government’s Exhibit 10, as redacted sua sponte bythe court


000075


Parties stipulate that Room J was the room occupied by Elena Vasadi.

4:01 p.m. Cross examination by Mr. Dubois.

Exhibits Identified: Fricosu Exhibit I, Fricosu Exhibit J, Fricosu Exhibit K, Fricosu ExhibitL, Fricosu Exhibit M, Fricosu Exhibit N, Fricosu Exhibit G, Fricosu Exhibit P, FricosuExhibit Q, Fricosu Exhibit R, Fricosu Exhibit S, Fricosu Exhibit T, Fricosu Exhibit U,Fricosu Exhibit E, Fricosu Exhibit D, Fricosu Exhibit V, Fricosu Exhibit W, Fricosu ExhibitC, Fricosu Exhibit F, Fricosu Exhibit X, Fricosu Exhibit H, Fricosu Exhibit A, FricosuExhibit B

IT IS FURTHER ORDERED as follows:

2. That this hearing is CONTINUED to Tuesday, January 3, 2012, at 8:30a.m., the court reserving, if necessary, the balance of that morning tocomplete this hearing, at which the defendant, counsel, the government’switness and advisory witness, and the witnesses subpoenaed by thedefense shall again appear without further notice, order, or subpoena; and

3. That the defendant’s bond is continued.



Hearing continued.


000076




Date: January 3, 2012



Parties: Counsel:


Plaintiff,

v.


2. RAMONA FRICOSU,a/k/a Ramona Smith,

Defendant.

Philip Dubois

COURTROOM MINUTES

Continued Motion Hearing on #111


Appearances of counsel. Also seated at government’s table is FBI Special Agent, ScottSchons.


Court’s sequestration order is in effect.

8:40 a.m. Government’s witness, Scott Schons, recalled and re-sworn.

Continued cross examination by Mr. Dubois.

9:07 a.m. Re-direct examination by Ms. Davies.


000077


9:15 a.m. Mr. Dubois requests that he be allowed to conduct re-cross examination.

Colloquy between the court and Mr. Dubois.

9:17 a.m. Re-cross examination by Mr. Dubois.

9:21 a.m. Witness is excused.

9:21 a.m. Government’s witness, Travis Johnson, called and sworn.

Exhibits Identified: Government’s Exhibit 11; Government’s Exhibit 7, Page 2;Government’s Exhibit 4B, Page 11

Exhibits Admitted: Government’s Exhibit 11; Government’s Exhibit 7, Page 2;Government’s Exhibit 4B, Page 11 9:53 a.m. Cross examination by Mr. Dubois.



Witness Johnson has resumed the witness stand.

Continued cross examination by Mr. Dubois.

10:34 a.m. Re-direct examination by Ms. Davies.

10:35 a.m. Witness is excused.

Ms. Davies addresses the court regarding admission of Government’s Exhibit 2A, Page1, as initially requested during the previous hearing on November 1, 2011. Defense hasno objection.

Exhibit Admitted: Government’s Exhibit 2A, Page 1

Government rests.

10:38 a.m. Defendant’s witness, Kimberly Ross, called and sworn.

Direct examination by Mr. Dubois.

Exhibit Identified: Defendant’s Exhibit A, Defendant’s Exhibit B

Court directs Mr. Dubois to reorganize the court’s exhibit book during a brief recess.


000078




Witness Ross has resumed the witness stand.

Continued direct examination by Mr. Dubois.

Exhibits Identified: Fricosu Exhibit C, Defendant’s Exhibit D, Defendant’s Exhibit E,Defendant’s Exhibit F, Defendant’s Exhibit G, Defendant’s Exhibit H, Defendant’s ExhibitI, Defendant’s Exhibit J, Defendant’s Exhibit K, Defendant’s Exhibit L, Defendant’sExhibit M, Defendant’s Exhibit N, Defendant’s Exhibit O, Defendant’s Exhibit P,Defendant’s Exhibit Q, Defendant’s Exhibit R, Defendant’s Exhibit S, Defendant’s ExhibitT, Defendant’s Exhibit U, Defendant’s Exhibit V, Defendant’s Exhibit W, Defendant’sExhibit X

Exhibits Admitted: Defendant’s Exhibit C, Defendant’s Exhibit D, Defendant’s Exhibit E,Defendant’s Exhibit F, Defendant’s Exhibit G, Defendant’s Exhibit H, Defendant’s ExhibitI, Defendant’s Exhibit J, Defendant’s Exhibit K, Defendant’s Exhibit L, Defendant’sExhibit M, Defendant’s Exhibit N, Defendant’s Exhibit O, Defendant’s Exhibit P,Defendant’s Exhibit Q, Defendant’s Exhibit R, Defendant’s Exhibit S, Defendant’s ExhibitT, Defendant’s Exhibit U, Defendant’s Exhibit V, Defendant’s Exhibit W, Defendant’sExhibit X

11:11 a.m. Cross examination by Ms. Davies.

11:16 a.m. Witness is excused and released from subpoena.

11:17 a.m. Defendant’s witness, Thomas Parsons, called and sworn.

Direct examination by Mr. Dubois.

Exhibit Identified: Defendant’s Exhibit Y

Defendant’s Exhibit Y is corrected as reflected on the record.

Court directs counsel to confer during the lunch recess to provide the court with thephoto log requested.



Witness Parsons has resumed the witness stand.

Mr. Dubois addresses the court regarding the stipulation reached by the parties as to


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Defendant’s Exhibit Y.

Exhibit Admitted: Defendant’s Exhibit Y, as redacted on the record

1:21 p.m. Cross examination by Ms. Davies.

1:23 p.m. Witness is excused and released from subpoena.

1:24 p.m. Defense rests.

1:24 p.m. Closing argument by Ms. Davies.

1:38 p.m. Closing argument by Mr. Dubois.

1:46 p.m. Rebuttal argument by Ms. Davies.

The court takes the matter under advisement and will issue its written ruling as soon aspracticable.



Hearing concluded.


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Criminal Case No. 10-cr-00509-REB

UNITED STATES OF AMERICA, Plaintiff

v.

1. SCOTT ANTHONY WHATCOTT,

2. RAMONA CAMELIA FRICOSU,

Defendants.

_______________________________________________________________________________

MS. FRICOSU'S MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL_______________________________________________________________________________

Ms. Ramona Fricosu requests an order permitting her to proceed without payment of costs in her

appeal of the court's ORDER GRANTING APPLICATION UNDER THE ALL WRITS ACT REQUIRING DEFENDANT

FRICOSU TO ASSIST IN THE EXECUTION OF PREVIOUSLY ISSUED SEARCH WARRANTS. Ms. Fricosu is

indigent, is represented by appointed counsel, and has no assets or income sufficient to pay the

ordinary fees and costs of an appeal. Her financial situation has not changed since the

undersigned counsel was appointed to represent her in trial-court proceedings.

Respectfully submitted on February 1, 2012,

_________________s/_Philip L. Dubois__________________Philip L. DuboisLawyer for Ramona Fricosu

MS. FRICOSU'S MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL, 10-cr-509-REB, page 1


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Philip L. Dubois, P.C.128 S. Tejon St. #301Colorado Springs, CO 80903-2227719-635-4848, fax 719-635-2222 [email protected]


The foregoing was served by means of the court's electronic case management system on

February 1, 2012:

__________________________s/_Philip L. Dubois___________________________

MS. FRICOSU'S MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL, 10-cr-509-REB, page 2


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Criminal Case No. 10-cr-00509-REB

UNITED STATES OF AMERICA, Plaintiff

v.

SCOTT ANTHONY WHATCOTT, et al., Defendants.

_______________________________________________________________________________

ORDER PERMITTING MS. FRICOSU TO PROCEED IN FORMA PAUPERIS ON APPEAL

_______________________________________________________________________________

MS. FRICOSU'S MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL is hereby granted, and she is

permitted to proceed without payment of costs in her appeal of this court's ORDER GRANTING

APPLICATION UNDER THE ALL WRITS ACT REQUIRING DEFENDANT FRICOSU TO ASSIST IN THE EXECUTION OF

PREVIOUSLY ISSUED SEARCH WARRANTS.

Date of order: __________________________________________, 2012.

______________________________________________________________

District Judge


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Date: February 7, 2012



Parties: Counsel:


Plaintiff,

v.


1. SCOTT ANTHONY WHATCOTT,a/k/a Michael Scott Smith,a/k/a Scott Vasadi, and


Defendants.

Mark Johnson

Philip Dubois

COURTROOM MINUTES

Motions Hearing on #93, #130, #134, #135, #142, #144


Appearances of counsel. Mr. Sibert is not present at this time, but will present argumentlater in the proceedings. Defendant Fricosu and her counsel are not, and are not yetrequired to be, present. Also seated at government’s table is FBI Special Agent ScottSchons.


Court addresses defendant Whatcott’s Motion Requesting Dismissal of Counts 40Through 49 Based Upon a Violation of Statutory Speedy Trial and Constitutional


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Speedy Trial [#130] filed June 6, 2011.

9:08 a.m. Argument by Mr. Johnson.

9:20 a.m. Response by Ms. Davies.

9:28 a.m. Reply by Mr. Johnson.



Defendant Fricosu and Mr. Dubois are now present.

Court addresses Ms. Fricosu’s Motion To Dismiss Indictment or Sever Counts[#134] filed June 7, 2011; Ms. Fricosu’s Motion To Sever Defendants [#135] filed June7, 2011; defendant Whatcott’s Motion Requesting Severance of Defendants as toCounts 40 Through 49 [#142] filed June 10, 2011; and defendant Whatcott’s MotionRequesting Severance of Counts 40 Through 49 from the Remaining Counts in theIndictment [#144] filed June 10, 2011.

10:06 a.m. Argument by Mr. Johnson.


10:17 a.m. Additional argument by Mr. Johnson.

10:22 a.m. Additional argument by Mr. Dubois.

10:25 a.m. Response by Ms. Davies.

10:41 a.m. Reply by Mr. Johnson.

10:46 a.m. Reply by Mr. Dubois.

Court addresses Ms. Fricosu’s Motion Regarding DNA Sample [#93] filed March 30,2011.

Court inquires whether defendant Whatcott wants to be present for this portion of hearing. Mr. Johnson confirms that he does.

Ms. Davies states that Assistant United States Attorney Jeremy Sibert, who will argue themotion, has planned on the previously set hearing time of 1:30 p.m. Ms. Davies willcontact Mr. Sibert during the upcoming recess.



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Assistant United States Attorney, Jeremy Sibert, is now present.

Court further addresses Ms. Fricosu’s Motion Regarding DNA Sample [#93] filedMarch 30, 2011.


11:26 a.m. Response by Mr. Sibert.

11:41 a.m. Reply by Mr. Dubois.

Court proposes setting a hearing on defendant Whatcott’s Motion Requesting an Endsof Justice Continuance To Cover Period Time Between Setting of Jury Trial andCommencement of Jury Trial To Insure Sufficient Time for Issuance of Subpoenas[#258] filed February 6, 2012.


1. That, after conferring with counsel and by agreement of all, the court willconduct a hearing on defendant Whatcott’s Motion Requesting an Ends ofJustice Continuance To Cover Period Time Between Setting of JuryTrial and Commencement of Jury Trial To Insure Sufficient Time forIssuance of Subpoenas [#258] filed February 6, 2012, on Friday, March 9,2012, at 9:00 a.m., at which the defendants and their counsel shall appearwithout further notice or order; and

2. That to the extent necessary the United States Marshal for the District ofColorado shall assist the court in securing the appearance of defendantWhatcott.

Ms. Davies addresses the court regarding procedure for copying the hard drive of theToshiba laptop.

Response by Mr. Bubois.

Reply by Ms. Davies.

Court requests that the parties submit a stipulation at their convenience.



Hearing concluded.


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