Case 1:17-cr-10092-NMG Document 370 Filed 11/12/19 Page 1 of 22

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA

Case No. 1:17-cr-10092-NMG

v.

Gary P. DeCicco,

Defendant.

MEMORANDUM IN SUPPORT OF DEFENDANT GARY DECICCO’S

MOTION FOR LEGAL FEES AND EXPENSES
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The Government first brought unfounded charges against Mr. DeCicco, then engaged in

repeated discovery violations and repeated a troubling series of false statements to the Court, all

in a quest to convict Defendant Gary DeCicco of a federal offense he did not commit. The

Government did so because Mr. DeCicco refused to cooperate in a separate high-profile

investigation. After Mr. DeCicco refused, the Government came after him with the full force of

the U.S. Attorney’s Office and the FBI, causing Mr. DeCicco to suffer 15 months of pre-trial

detention, significant legal fees, loss of business income as well as the stress and anxiety that

naturally accompanies any federal charge.

Fortunately, the jury saw through the veneer of the Government’s case and acquitted Mr.

DeCicco in just one hour. However, that acquittal did not remedy all the harms Mr. DeCicco

endured. Mr. DeCicco’s father suffered a heart attack the day after his arrest and Mr. DeCicco

was unable to visit him in the hospital. Mr. DeCicco lost time with his children. In addition to

the legal fees he incurred, Mr. DeCicco also lost significant business opportunities. The Court

cannot give Mr. DeCicco back the 15 months he spent locked up awaiting trial or take back the

years of stress he continues to suffer, but it can award him the attorneys’ fees and expenses he

incurred in defending himself. This Court has already found the Government’s conduct

disconcerting. It should also find that the Government’s conduct was vexatious, frivolous and/or

in bad faith and find that the United States Attorney’s Office and the FBI are jointly and

severally liable for Mr. DeCicco’s attorneys’ fees and expenses in the amount of $3,041,989.98.

I. BACKGROUND

The FBI initially approached Mr. DeCicco on August 12, 2013, seeking his cooperation

in the high-profile casino investigation involving Charlie Lightbody and others. See Ex. A, 1

1
Exhibits to the Affidavit of Tracy A. Miner in Support of Gary DeCicco’s Motion for Legal Fees and Expenses.

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150:18-21, 151:18-20, 153:1-4. Mr. DeCicco answered the FBI’s questions at that interview but

did not enter into a cooperation agreement with the Government, stating he did not have the

information they sought. The FBI agent then indicated they would go after Mr. DeCicco.

The FBI kept its promise. The U.S. Attorney’s Office brought a criminal complaint

charging Mr. DeCicco with extortion in violation of 18 U.S.C. § 1951 on March 16, 2017. An

Indictment followed. Mr. DeCicco had sold his neighbor, Medi Mirnasiri, a parcel of land

located in Saugus, and helped Mr. Mirnasiri obtain the necessary permits to construct an

automobile dealership on the property. Ex. B, ¶¶ 5-6. On August 4, 2014, Mr. DeCicco

allegedly caused flowers, in a vase shaped like a cross, to be delivered to the dealership with a

threatening note. Id. at ¶ 10. The Government informed the Court that Mr. Mirnasiri also

reported receiving two threatening phone calls, one later the same day and a second two days

later on August 6. Id. at ¶¶ 10-11. The Government originally claimed (falsely) that Mr.

Mirnasiri did not report these threats to the FBI until December 28, 2014, shortly before he was

assaulted at his auto dealership on January 11, 2015. Id. at ¶¶ 13 n.2, 15. 2

In his affidavit in support of the criminal complaint, Special Agent Matthew Elio stated

that Mr. Mirnasiri was an FBI source from 2006 through 2011, and was reactivated again in July

2015. Id. at ¶ 5. Agent Elio specifically represented that Mr. Mirnasiri “has no criminal history”

and that he was “not aware of any information that would adversely affect the credibility of [Mr.

Mirnasiri’s] information.” Id. Notably, although the Government reviewed telephone records of

at least four individuals prior to filing the complaint, id. at ¶ 23, it either did not review records

of Mr. Mirnasiri’s personal or business phones to verify his claims that he had received

2
The Government reiterated much of the same information in another affidavit executed by IRS Special Agent
Sandra Lemanski in support of detention. See Ex. C, ¶¶ 8, 10-11, 22.

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threatening phone calls or reviewed them and ignored the evidence that contradicted their theory.

A. Mr. DeCicco is Detained Pending Trial After the Government Makes a Series
of Misrepresentations to the Court at Detention Hearings

Mr. DiCicco vigorously contested pre-trial detention after his arrest. However, given the

violent nature of the charges, the Court agreed with the Government’s position that detention

was warranted and Mr. DeCicco was ultimately detained for 15 months before he was acquitted.

The Court’s decision to detain Mr. DeCicco was based on a series of troubling

misrepresentations the Government made over the course of several detention hearings.

Mr. DeCicco maintained from the outset that his dispute with Mr. Mirnasiri was over

some comments Mr. Mirnasiri had made about Mr. DeCicco’s daughter. See, e.g., Ex. D,

115:18-20; Docket No. 70 at 2; Docket No. 84 at 1. 3 The Government alleged the dispute was

actually due to Mr. DeCicco’s alleged desire to obtain an interest in the auto dealership.

Government accordingly took pains to tie the assault to the August 4, 2014 flower delivery

purporting to congratulate Gary on the new dealership. In response to a question from the Court

about what Mr. Mirnasiri was doing between the flower delivery and the assault, the Government

told the Court, “He’s not talking to DeCicco.” Ex. E, 31:17-24. That statement was false. Mr.

Mirnasiri’s phone records later revealed he was regularly communicating with Mr. DeCicco

throughout the relevant time period and was keeping the FBI apprised of those communications.

Mr. DeCicco opposed detention, arguing that the Government’s factual basis for the case

was very weak at best. The defense argued it was “very surprising” there were no recordings of

Mr. DeCicco threatening Mr. Mirnasiri, who was a longtime FBI informant. See Ex. F, 60: 12-

25; Ex. E, 36:5-13; see also Docket No. 70 at 3; Docket No. 84 at 3. The Government

3
The Government confirmed Mr. DeCicco mentioned this dispute to one cooperating witness. See Ex. D, 16:17-25.

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maintained the lack of recordings did not undermine its case because the “FBI goes and talks to

[Mr. Mirnasiri] . . . I think it was December 28,” shortly before he was assaulted on January 11.

See Ex. F, 67:10-16. This was no idle remark; the Government repeatedly represented to the

Court that the FBI did not speak with Mr. Mirnasiri until December 28, 2014. See id. 73:17-

-74:15 (“I think he was interviewed December 28. The assault was January 11. So it was over

the holidays.”); Ex. E, 30:13-20 (“they ultimately get to talk to [Mr. Mirnasiri] on December

28”); Ex. E, 55:24-56:5 (“The point about the wire, Your Honor, we’ve been over this a number

of times before. Between the time when the FBI interviews [Mr. Mirnasiri] and the time when

he’s beaten, it’s 13 days, and that includes New Year’s and Christmas vacation. They simply

didn’t have a chance to pursue this investigation before Mr. DeCicco took matters again into his

own hands.”). It later became clear the FBI had been in communication with Mr. Mirnasiri as

early as August 27, 2014. Further, although the Government initially scoffed that it would be

“preposterous” to have Mr. Mirnasiri wear a wire after the assault, that claim too turned out to be

false. The Government later disclosed that the FBI had provided Mr. Mirnasiri with recording

equipment in February 2015, the month after the assault. See Ex. F, 67:21-25; Ex. E, 56:6-10.

The Government continued to credit Mr. Mirnasiri’s version of events during the

detention hearings, without evidence. The Government continued to rely on Mr. Mirnasiri’s

claim that he had received two threatening phone calls on August 4 and 6, 2014, shortly after the

flower delivery. See Ex. D, 96:2-18; 98:1-6. In fact, the Government made no effort to confirm

that those calls occurred, and phone records later demonstrated no such calls were made.

Mr. DeCicco vigorously disputed Mr. Mirnasiri’s reliability, despite SA Elio and SA

Lemanski’s attestations that they were “not aware of any information” that would adversely

impact Mr. Mirnasiri’s credibility. Ex. B, ¶ 5; Ex. C, ¶ 3. Among other concerns, Mr. DeCicco

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argued Mr. Mirnasiri, who was a long time FBI informant, had a “pattern of vindictively

threatening or precipitating investigations against individuals to spite them,” including making

death threats. 4 Docket No. 84 at 12-15. In response, the Government represented to the Court

that “it was the Saugus Police who referred the case to the FBI, not [Mr. Mirnasiri] . . . The FBI

subsequently reached out to [Mr. Mirnasiri] about the incident, not the other way around.”

Docket No. 87 at 16 (emphasis in original). The Government repeated this assertion at the next

hearing, telling the Court “I’d also point out, Your Honor that [Mr. Mirnasiri] did not proactively

report any of this to the FBI. The Saugus P.D. turned it over to the FBI, and the FBI approached

[Mr. Mirnasiri]. . . . [Mr. Mirnasiri] told this to the Saugus P.D., and they turned it over to the

FBI, and the FBI then went and talked to [Mr. Mirnasiri].” See Ex. G, 47:19-21, 48:1-3. This

claim too was false. Phone records later proved Mr. Mirnasiri first contacted the FBI, not the

other way around, long before the Saugus Police referred the matter.

The Court ordered Mr. DeCicco detained pending trial. See Ex. D, 132:24-25. The

Court noted “some weaknesses in the government’s case,” but nevertheless found the strength of

the evidence “marginal[ly]” supported detention. Id. at 136:5-8. Of course, at the time the Court

did not know that much of the Government’s “evidence” was false. As a result, Mr. DeCicco

lost 15 months of freedom while he waited to clear his name.

4
For example, in 2010 Mr. Mirnasiri himself made an extortionate threat to an individual who had bounced a check.
Mr. Mirnasiri left his victim the following voicemail:
Larry, this is [Medi]. I had people in front of me so I couldn’t talk to you but let me tell you
something asshole. Not only kiss my ass you fucking piece of shit, but you can kiss good-bye to
River INADIBLE Cre-, Credit Union also, account and business as well. Obviously you don’t
know INAUDIBLE to me. Next time I see you face-to-face mother fucker, you’d better prepare
yourself cock sucker because I’m coming after you, mother fucker piece of shit. You think I’m
afraid of you, mother fucker. Obviously you don’t know me. I’m gonna cut you to pieces, you
cocksucker. If you got balls, tell me where you are and I’ll come right now and I’m gonna show
how deeply I’m gonna fucking stick my foot up in your fucking piece of shit ass, cocksucker. I’ve
got a score to settle with you, mother fucker, now.
Docket No. 90-3. Additionally, John Lloyd, the architect who designed Mr. Mirnasiri’s auto dealership, testified at
trial that he threatened to “cut my head off” over a disagreement about the building’s design. Ex. J, 172:21.

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B. The Government’s Inadequate Productions

Counsel for Mr. DeCicco sought the Court’s assistance in resolving several discovery

disputes that arose before trial. The defense identified a number of serious concerns regarding

the adequacy of the Government’s investigation and productions.

First, defense counsel questioned why the Form 302 memorializing the December 28,

2014 interview of Mr. Mirnasiri was drafted years after that meeting, rather than within five days

as required by the FBI Manual of Administrative Operations and Procedures, Part 2, Section 10-

13.3, and why the 302 appeared to be missing a page. See Ex. H, 27:6-10; Ex O. The

Government acknowledged it had initially produced only a Draft 302, and only after realizing its

“inadvertent[ ]” error, produced the Final 302 on March 20, 2018. See Docket No. 171 at 13; Ex

O. There were critical differences between the Draft 302 and Final 302. Importantly, only the

Final 302, dated March 1, 2017, includes a statement by Mr. Mirnasiri attributing the assault to

Mr. DeCicco. Ex. H, 29:21-30:1. That statement was itself contradicted by a belatedly-

produced FBI Form 1057 Report, which indicated that shortly after the assault, Mr. Mirnasiri had

attributed the attack to a debt he owed Mr. DeCicco. See Docket No. 165 at 16; Ex. I. 5

Second, Mr. DeCicco argued the Government had never confirmed that Mr. Mirnasiri

actually received threatening phone calls on August 4 and 6, 2014, as he had reported to the

Saugus Police Department. 6 Although the Government conducted extensive phone analysis as

part of its investigation and obtained phone records of nearly every individual allegedly involved

in the assault on Mr. Mirnasiri before Mr. DeCicco was charged, see Ex. B, ¶ 23, the prosecutors

and FBI agents inexplicably failed to obtain the phone records of the most important individual

5
The FBI Form 1057 also turned out to be incorrect. At trial, Mr. Mirnasiri admitted he did not owe Mr. DeCicco
any money at the time of the assault. See Ex. J, 79:19-23.
6
Mr. Mirnasiri reported to the Saugus Police that at least the August 6 call was made to his cell phone. Ex. K.

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of all, Mr. Mirnasiri himself. The Government did not subpoena Mr. Mirnasiri’s cell phone

records until April 4, 2017, over two years after he was attacked and over two and a half years

after he purportedly received the threatening phone calls. 7 Even then, the Government made a

critical mistake, subpoenaing a number that was one digit off of Mr. Mirnasiri’s cell phone

number. T-Mobile responded that the number was assigned to another carrier, which did not

retain records longer than two years. See Docket No. 309 at 5; Ex. X. The Government should

have realized something was wrong at this point. The Government knew Mr. Mirnasiri’s carrier

was T-Mobile, and did not need a subpoena to get its own cooperator’s phone records.

Nevertheless, the Government claims it did not notice it subpoenaed records for the wrong phone

number until the defense discovered the error. Ex. H, 42:8-13.

Third, Mr. DeCicco sought production of communications between Mr. DeCicco and Mr.

Mirnasiri, which would demonstrate the informant was not afraid of Mr. DeCicco during the

period of the alleged extortion and that the two were in fact in contact during the period between

the flower delivery and the assault. See Docket No. 165 at 28. Although Mr. Mirnasiri was a

longtime FBI informant and had met with the FBI in 2014, the Government said the month

before trial that it had just received Mr. Mirnasiri’s phone “a couple of weeks ago” and had been

unable to find anything that “predates a certain point.” Ex. H, 21:17-22.

Finally, believing he had been meeting with the FBI well in advance of December 28,

2014 and that the Government would have had ample opportunity to tape any purported threats

from Mr. DeCicco, the defense sought Mr. Mirnasiri’s communications with the FBI. Docket

No. 165. The Government told the Court it had “produced all communications with the agents.”

7
Additionally, although Mr. Mirnasiri was an FBI informant and was cooperating with the investigation since 2014,
the Government did not bother to image Mr. Mirnasiri’s phone until May of 2018.

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Ex. H, 19:22-23, 20:17-19. In fact, the Government had produced only text messages between

FBI agents and Mr. Mirnasiri that took place after the assault and omitted communications from

prior to the assault. When the defense noted this deficiency, the Government clarified it had

produced “written communications” such as text messages, but not the agent’s phone records.

Id. at 23:20-24:1. This too turned out to be a lie. There were numerous text messages between

Mr. Mirnasiri and the FBI prior to the assault that had not been produced.

C. The Government’s Misrepresentations and Discovery Violations are Exposed

on the Eve of Trial

The Government’s story quickly unraveled in the days leading up to the final pre-trial

conference. The week before the final pre-trial, on May 17, 2018, the Government finally

produced phone records from Mr. Mirnasiri’s cell phone, the same phone he had in 2014. Ex. L,

10:22-11:3; Ex. M. Once again the production was missing critical information. The

Government failed to produce records for a critical month, December 2014, until the day before

the final pre-trial conference. Ex. L, 12:1-5; Ex. N.

With Mr. Mirnasiri’s phone records finally in hand, Mr. DeCicco’s attorneys made an

astonishing discovery. Although the Government had repeatedly told the Court that the FBI did

not meet with Mr. Mirnasiri until December 28, 2014, that the FBI did not have the opportunity

to record Mr. DeCicco before the January 11, 2015 assault, and that Mr. DeCicco and Mr.

Mirnasiri were not in contact between the August 4 flower delivery and the January 11 assault,

those representations were simply false. Special Agent Jesse Chizmadia was in regular

communication with Mr. Mirnasiri before December 28, 2014, including on occasions when Mr.

DeCicco and Mr. Mirnasiri exchanged phone calls. There were at least 45 communications

between the two going as far back as August 27, 2014. Ex. L, 14:2-8, 21:5-6; Ex. P. For

example, the defense was focused on December 9, 2014 as a key date when Mr. DeCicco and

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Mr. Mirnasiri exchanged potentially exculpatory voicemail messages. As it turned out, SA

Chizmadia communicated with Mr. Mirnasiri multiple times on December 9, 2014. Ex. L,

12:14-22; Ex. P. That pattern, in which Mr. Mirnasiri is in contact with SA Chizmadia at or

around the same time he was in touch with Mr. DeCicco, repeats itself on multiple occasions in

September, October, and December 2014. Ex. L, 16:16-18:4; Ex. P. Although SA Chizmadia

was a member of the prosecution team, the Government supposedly was surprised by these

revelations. Ex. L, 29:5-6, 29:25-30:5. The Government asserted there had been “all sorts of

miscommunications” with Mr. Mirnasiri’s phone carrier. Ex. L, 31:17-32:12.

In light of these revelations, which concerned a “matter of great import,” the Court

continued the trial by one week to allow the defense to file a motion to dismiss. Ex. L,

35:22-36:4, 38:14-17. Much to the defense’s surprise, the Government used that time to produce

additional exculpatory material which should have been produced well in advance of trial, which

it claimed had been “inadvertently” or “inexplicably” omitted from previous productions. Ex. Q.

Those materials included SA Chizmadia’s text messages with Mr. Mirnasiri from 2014 and

additional text messages from 2016 through 2018; the cell phone number of Massachusetts State

Police Detective Lieutenant Mark Frenzo, who worked closely with SA Chizmadia, and who

communicated with Mr. Mirnasiri over 40 times in October and November 2014; and additional

text messages between Mr. Mirnasiri and SA Matthew Elio from 2018.

The Government’s belated productions on the eve of trial contained several staggering

revelations, in addition to those the defense had already called to the Court’s attention. First, the

allegedly threatening phone calls made from a blocked number on August 4 and 6, 2014 were

almost certainly a fiction. There are no calls from blocked numbers to Mr. Mirnasiri’s cell phone

on either of those days. Ex. R. Although the defense had long requested phone records from Mr.

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Mirnasiri’s auto dealership, the Government never produced them.

Second, despite the Government’s repeated representations that agents initially contacted

Mr. Mirnasiri after the Saugus Police referred the investigation to the FBI, the phone records

demonstrate that it was Mr. Mirnasiri who contacted the FBI, and he did so before the Saugus

Police referred the matter. Ex. P.

Third, stunningly, the Government advised the defense for the first time on May 25, 2018

that SA Chizmadia had provided Mr. Mirnasiri with recording equipment, including a phone

recording device and a recording device hidden in a water bottle in Mr. Mirnasiri’s office. Ex. S.

SA Chizmadia apparently believed that equipment was provided in February 2015, although the

Government had previously said it would be “preposterous” to have asked Mr. Mirnasiri to make

consensual recordings at that time after the assault. See Ex. F, 67:21-25; Ex. E, 56:6-10.

Shockingly, the Government produced no records whatsoever showing the chain of custody of

these recording devices or authorizing their use. Although Mr. Mirnasisi apparently recalled

recording an individual allegedly not connected with Mr. DeCicco’s case, the Government

claimed that recording no longer existed. Ex. S.

Fourth, the text messages between Mr. Mirnasiri and his FBI handlers evidenced an

inappropriate personal relationship between them, including offers of meals, offers to assist Mr.

Mirnasiri with tax issues, sharing an obscene photograph, and the FBI agents keeping Mr.

Mirnasiri apprised of plans for Mr. DeCicco’s arrest, allowing him to record the event. Ex. T.

In its motion to dismiss, the defense argued the FBI had been running a stealth

investigation of Mr. DeCicco for months in 2014, failing to document their efforts and failing to

preserve exculpatory voicemails. The phone records demonstrated the FBI had been working

with Mr. Mirnasiri to attempt to record Mr. DeCicco before December 28, 2014. Docket No.

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324 at 6-8. The U.S. Attorney’s Office “evidently failed to understand or appreciate what was

afoot,” resulting in numerous false statements to the Court during Mr. DeCicco’s detention

hearings, and numerous Brady violations and other irregularities. Docket No. 304 at 1-2.

In response, the Government chose to repeat its previous misstatements in the face of

contradictory evidence. For example, the Government insisted there was no investigation of Mr.

DeCicco before December 28, 2014, and that SA Chizmadia had only talked briefly on the phone

and exchanged text messages with Mr. Mirnasiri prior to that date, in a “lengthy game of phone

tag.” Docket No. 309 at 3-4, 12. Despite the fact that Mr. Mirnasiri indisputably called SA

Chizmadia before the Saugus Police referred the matter to the FBI, the Government insisted the

investigation was first referred by the Saugus Police, who must have given Mr. Mirnasiri a phone

number to contact the FBI. Docket No. 309 at 3 n.3. The Government also vehemently disputed

the claim that it had failed to secure Mr. Mirnasiri’s phone records, arguing it subpoenaed all

“relevant” phone records during the investigation, despite the fact that it inarguably had failed to

secure the very phone records that could have led to the identity of the individual who was

allegedly threatening Mr. Mirnasiri. Docket No. 309 at 14. The Government also claimed that

discovery violations identified by the defense were merely mistakes, despite the fact that there

were at least four such “mistakes.” See Docket No. 309 at 1, 5 (failure to subpoena correct

telephone records for Mr. Mirnasiri was a “typo”); id. at 6 (government realized T-Mobile “had

sent incomplete records” in response to second trial subpoena); id. at 1, 7 (Government did not

“realize[ ]” its “mistake” that it failed to produce SA Chizmadia texts from 2014 until final pre-

trial); id. at 7 (Government did not “realize[ ]” it had not produced SA Chizmadia’s texts after

2015 until May 24, 2018); id. at 16 (Government “inadvertently omit[ed]” third spreadsheet).

At oral argument, the Court “note[d] its concern with the prosecution and the FBI’s

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handling of this case.” Ex. U, 46:25-47:1. The Court found “disconcerting” the “prosecution’s

failure to communicate with Special Agent Chizmadia, the repeated belated production of

exculpatory evidence to the Defendant and Special Agent Chizmadia’s inappropriate relationship

with Mir. Mirnasiri,” and noted that “without the dogged persistent of defense counsel, much of

this evidence may never had seen the light of day.” Id. at 47:1-9; see also id. at 48:13-17 (“There

certainly has been late disclosures here that suggest carelessness and poor communication

between the Assistant United States Attorney and Special Agent Chizmadia.”). The Court

attributed these errors to “a lack of diligence and competence, rather than bad faith,” and denied

Mr. DeCicco’s motion to dismiss due to lack of evidence that the Government’s conduct was

“nefarious or dishonorable.” Id. at 47:10-15.

The Court did, however, allow the defense to depose SA Chizmadia. Id. at 47:25-48:3.

SA Chizmadia also repeated the Government’s misstatements at his deposition, testifying that

there “was no official investigation” of Mr. DeCicco before December 28, 2014. Ex. V, 9:7-10.

However, SA Chizmadia “may have” met Mr. Mirnasiri before December 9, 2014. Id. at 19:4-8.

SA Chizmadia explained the reference to a “debt” on the Form 1057 to mean that Mr. DeCicco

allegedly “felt he . . . was owed a piece of the business,” although that is not an ordinary

understanding of the term “debt.” Id. at 22:14-18. He also acknowledged the reference to “an

assault on Mirnasiri allegedly orchestrated by DeCicco” was not added to the FBI 302 until the

day before the complaint was issued in this case. Id. at 31:12-14, 31:20-23, 32:17-18. Contrary

to the Government’s previous representations, SA Chizmadia testified that Mr. Mirnasiri first

reached out to him. Id. at 39:10-13. Finally, SA Chizmadia stuck to the story that Mr. Mirnasiri

was not given recording equipment until after the assault. Id. at 86:17-23.

D. The Jury Immediately Returns a Verdict of Not Guilty

The Government continued to stand by its fictional story at trial. It elicited testimony
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from Mr. Mirnasiri that he received a threatening phone call on the same day as the flower

delivery, although that claim was contradicted by his phone records and even Mr. Mirnasiri

himself on cross examination. See Ex. W, 56:8-21, 165:25-166:1. The Government also elicited

testimony from Mr. Mirnasiri that it was SA Chizmadia who contacted him, although phone

records also showed that claim was false. See id. at 62:19-23.

On cross examination, Mr. Mirnasiri continued his pattern of lies, asserting he had

“never” been an FBI informant, see Ex. W, 80:5-7; Ex. J, 57:3-12, although the FBI had

acknowledged he was from the inception of this case. See Ex. B, ¶ 5. When confronted with

inconsistencies in his testimony, Mr. Mirnasiri – the Government’s star witness – says he

“forget[s] a lot of things” because he has “Alzheimer’s . . . in my family.” See Ex. J, 34:12-18.

Mr. Mirnasiri did tell the truth about at least one critical fact. He admitted the FBI had given

him recording equipment in 2014, not in 2015 as previously claimed, and he used that equipment

to record Charlie Lightbody. See Ex. W, 227:8-22. In other words, Mr. Mirnasiri admitted the

Government was not truthful when it told the Court he had no opportunity to record Mr. DeCicco

in 2014. Mr. Mirnasiri did have recording equipment, but he either failed to record his

conversations with Mr. DeCicco, or those recordings were never produced. See id. at 227:23-24.

Despite Mr. Mirnasiri’s repeated lies, SA Elio testified at trial that Mr. Mirnasiri “never

lied to me.” See Ex. A, 191:8-14, 192:7-12. The jury acquitted Mr. DeCicco in one hour.

II. ARGUMENT

A. Legal Standard

The Hyde Amendment provides, in relevant part:

[T]he court, in any criminal case (other than a case in which the defendant is
represented by assigned counsel paid for by the public) . . . may award to a
prevailing party, other than the United States, a reasonable attorney’s fee and
other litigation expenses, whether the court finds that the position of the United
States was vexatious, frivolous, or in bad faith, unless the court finds that special

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circumstances make such an award unjust. Such awards shall be granted pursuant
to the procedures and limitations (but not the burden of proof) provided for an
award under section 2412 of title 28, United States Code.

18 U.S.C. § 3006A (statutory note). As Representative Hyde, who offered the

Amendment, told Congress, the provision was intended to address situations where prosecutors

and investigators are “not just wrong, they are willfully wrong, they are frivolously wrong. They

keep information form you that the law says they must disclose. They hide information. They

do not disclose exculpatory information to which you are entitled. . . .” See 143 Cong. Rec.

H7786-04, H7791 (Sept. 24, 1997) (statement of Rep. Hyde).

Mr. DeCicco was represented by retained counsel throughout this litigation, including at

trial where he was indisputably the prevailing party. The Court should award Mr. DeCicco his

reasonable attorneys’ fees and litigation costs in the amount of $3,041,989.98 because the

Government’s position in instituting and maintaining this litigation was vexatious, frivolous, and

in bad faith, no special circumstances would make such an award unjust.

B. The Position of the United States was Vexatious, Frivolous, or in Bad Faith

An award under the Hyde Amendment is appropriate where, as here, the Government’s

position was vexatious, frivolous, or in bad faith. One prong is sufficient to support an award;

the Court need not find that the Government’s conduct was vexatious, frivolous, and in bad faith.

United States v. Knott, 256 F.3d 20, 29-30 (1st Cir. 2001). Mr. DeCicco bears the burden of

proof, but need only meet that burden by a preponderance of the evidence. The Court may

consider the conduct of the U.S. Attorney’s Office and the FBI, including conduct prior to

litigation. See United States v. Reyes-Romero, 364 F. Supp. 3d 494, 511 (W.D. Pa. 2019).

An award of fees under the Hyde Amendment for “vexatious” conduct requires “both a

showing that the criminal case was objectively deficient, in that it lacked either legal merit of

factual foundation, and a showing that the government’s conduct, when viewed objectively,

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manifests maliciousness or an intent to harass or annoy.” United States v. Knott, 256 F.3d 20, 29

(1st Cir. 2001). Mr. DeCicco need not prove the Government’s subjective motivation was

vexatious. United States v. Knott, 256 F.3d 20, 30-31 (1st Cir. 2001); see also United States v.

Gardner, 23 F. Supp. 2d 1283 (N.D. Ok. 1998) (vexatious conduct need not be brought in

subjective bad faith). Conduct is frivolous where “the government pursued a prosecution

without any foundation or basis to believe that it might prevail.” United States v. Knott, 256

F.3d 20, 29-30 (1st Cir. 2001); see also United States v. Reyes-Romero, 364 F. Supp. 3d 494,

510 (W.D. Pa. 2019) (frivolous position is “groundless with little prospect of success”). Bad

faith is also an “objective inquiry” in which there is an “implication of conscious wrongdoing”

and the Government “acted upon a state of mind affirmatively operating with furtive design or ill

will.” United States v. Reyes-Romero, 364 F. Supp. 3d 494, 510 (W.D. Pa. 2019).

The Government’s conduct here rose to the level of vexations, frivolous, or in bad faith.

The Government brought a weak case based on the testimony of a longtime informant, without

bothering to confirm even the most basic details of his story. The Government did so because it

wanted Mr. DeCicco to cooperate against a defendant in another high-profile investigation, an

individual Mr. Mirnasiri admitted to recording at trial, and not because the evidence warranted a

federal extortion charge. The Government continued to take vexatious, frivolous, or bad faith

positions by making a series of misrepresentations to the Court to take away Mr. DeCicco’s

freedom for a period of fifteen months. When the Government realized its earlier statements

were untrue or misleading, it still chose to defend them. Finally, the Government failed to

disclose exculpatory evidence in a timely manner as required by Brady. As a result, Mr.

DeCicco lost fifteen months of his freedom and millions of dollars in legal fees only to be

acquitted after one hour of jury deliberations.

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1. The Government Improperly Brought a Weak Case

There is ample evidence that the Government’s decision to charge Mr. DeCicco with a

federal crime was vexatious, frivolous, and in bad faith. It is even worse that the Government

did so to pressure Mr. DeCicco into cooperating against another higher profile target or to

appease an informant who was already cooperating in that investigation.

The case was without evidentiary support from inception and should never have been

brought. The charges rested on the say so of an informant, and the Government would have been

less sanguine about the strength of its case had it undertaken the most basic investigation of Mr.

Mirnasiri’s allegations. Had the Government obtained Mr. Mirnasiri’s phone records shortly

after the assault was first reported, an obvious step when a victim has reported receiving

threatening phone calls, it would have quickly realized that Mr. Mirnasiri was lying. His phone

records also would have undermined another critical aspect of Mr. Mirnasiri’s story; they would

have demonstrated that he was in regular contact with Mr. DeCicco during the period between

the flower delivery and the assault. Mr. Mirnasiri and Mr. DeCicco were neighbors with a

history of person disputes wholly unrelated to business. Had the Government realized the flower

delivery was not the last communication between the two, it would have questioned its chances

of proving beyond a reasonable doubt that the assault was motivated by any interest in Mr.

Mirnasiri’s auto dealership, as opposed to some other motivation. Likewise, had the U.S.

Attorney’s Office reviewed Mr. Mirnasiri’s phone records or asked the FBI agent working with

Mr. Mirnasiri, it would have known that he was in regular contact with the FBI during a period

when he would have had ample opportunities to record Mr. DeCicco or to retrieve the voicemails

he left for Mr. Mirnasiri during the critical period.

Additionally, investigators failed to properly document and preserve critical aspects of

the investigation, which led to the loss or destruction of exculpatory evidence. The FBI
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completely failed to document its provision of recording equipment to Mr. Mirnasiri in 2014 or

2015, in direct violation of the FBI’s own rules. See United States v. Holland, 34 F. Supp. 2d

346, 361, 367 (E.D. Va. 1999), vacated in part on other grounds at 48 F. Supp. 2d 571. The FBI

also failed to preserve exculpatory voicemails Mr. DeCicco left for Mr. Mirnasiri in December

2014, although the FBI was in frequent communication with Mr. Mirnasiri on the same day. The

U.S. Attorney’s Office failed to properly supervise the FBI during this early phase of the

investigation, resulting in the destruction of Brady material.

The Government’s decision to bring an extortion charge against Mr. DeCicco was

malicious, vexatious and in bad faith. The Government was willing to overlook the weaknesses

in its case because it wanted to pressure Mr. DeCicco to cooperate in a high-profile investigation.

Even if Mr. DeCicco was not willing to cooperate, charging him benefited the FBI’s longtime

informant, who was delighted to see his neighbor arrested. It is troubling that the Government

charged a personal enemy of its informant, with whom the FBI had cultivated an inappropriate

friendship. See Holland, 34 F. Supp. 2d at 361 (awarding fees where FDIC “used the ‘in

terrorem’ threat of criminal prosecution and attendant publicity” to unduly force settlement).

2. The Government Committed Numerous Brady Violations and

Repeatedly Misled the Court

The Government continued to take positions that were vexatious, frivolous or in bad faith

during this litigation. The Government made a serious of misrepresentations to the Court during

detention hearings. Those false statements are, at a minimum, the result of a breakdown in

communication between the U.S Attorney’s Office and the FBI. Had prosecutors closely

supervised the investigation or promptly reviewed Mr. Mirnasiri’s phone records, they would not

have told the Court that the investigation did not start until December 28, 2014 or that it had

been the FBI that initially reached out to Mr. Mirnasiri instead of the other way around. The

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prosecution likewise should have known and admitted that Mr. DeCicco and Mr. Mirnasiri had

been in contact between the flower delivery and the assault. That the Government did not

correct these misstatements, despite the FBI’s participation in multiple detention hearings, is

further evidence that the Government’s conduct was vexatious, frivolous and in bad faith.

The Government’s failure to preserve or delayed disclosure of exculpatory and other

critical materials in violation of Brady, the Rules of Criminal Procedures, and this Court’s Local

Rules likewise demonstrates vexatious, frivolous or bad faith conduct. Importantly, the

Government failed to subpoena Mr. Mirnasiri’s phone records in a timely manner, and even then

failed to subpoena records for the correct telephone number, a number FBI agents clearly had all

along, until defense counsel questioned the subpoena. The Government’s error was no mere

typographic mistake; the Government did not follow up when Mr. Mirnasiri’s carrier, T-Mobile,

said the number was actually assigned to a different carrier, which should have been a red flag.

The Government also did not seek those records from Mr. Mirnasiri himself, although he still

had the telephone he used during the critical period. The result is that significant exculpatory

evidence available in those records was not produced until the eve of trial, after numerous

requests from the defense. The Government also failed to review or collect FBI communications

with Mr. Mirnasiri until gaps in its production were identified by defense counsel, although those

communications were in the possession of the FBI. See United States v. Reyes-Romero, 364 F.

Supp. 3d 494, 520 (W.D. Pa. 2019) (finding failure to produce exculpatory records in possession

of DHS was bad faith). Although it is the prosecution that labors under a constitutional duty to

disclose exculpatory evidence, these errors would never had been discovered were it not for the

dogged persistence of defense counsel. The Government never took responsibility for its failure

to produce discovery in accordance with its ethical obligations, instead calling its failure

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“inadvertent,” “inexplicable,” “typos,” or “errors,” all described in the passive voice blaming

others or without taking responsibility for those errors, at least eleven times. 8

The Government’s vexatious, frivolous, and bad faith conduct continued in the lead up to

trial, even after some of its false statements had been brought to light. It is frankly astonishing

that the prosecutor was surprised at the final pretrial conference to learn the FBI had been in

regular communication with the informant for months before the first reported interview and the

assault. Even worse, upon learning the FBI had not kept prosecutors fully apprised of the early

stages of the investigation, the U.S. Attorney’s Office nevertheless chose to explain away the

inconsistencies in the Government’s initial account of the investigation. When it became clear

that the Government had made false statements during detention hearings, it did not accept

responsibility, apologize and correct them but instead repeated those errors with improbable

explanations. See United States v. Reyes-Romero, 364 F. Supp. 3d 494, 502-03 (W.D. Pa. 2019)

(awarding fees under Hyde Amendment where Government persisted in repeating argument that

had become untenable and attempted to explain away inconsistent and incorrect testimony).

Thus, at least 45 telephone communications between investigators and Mr. Mirnasiri over a

period of months merely became a long game of phone tag. Docket No. 309 at 12. The

indisputable fact that Mr. Mirnasiri first called SA Chizmadia, and not the other way around as

the Government had steadfastly maintained, became a story about how the Saugus Police must

have passed on SA Chizmadia’s phone number, although that was never documented in any

police report. Id. at 3. The Government’s persistence in sticking by its original story, in the face

8
See Ex. Q at 1 (“inexplicably”), 2 (noting mistaken “belie[f]”), 3 (blaming Massachusetts State Police for
Government’s failure to “notice[ ]” text messages with Mr. Mirnasiri), 4 (“inadvertently”); Ex. U 9:6-7 (“I realized
the error.”); Docket No. 171 at 13 (“inadvertently”); Docket No. 309 at 1 (“typographical error”), 5 (same), 6
(“realized that T-Mobile had sent incomplete records”), 7 (“error” and “inadvertent”), 16 (“inadvertently”).

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of clear evidence to the contrary, was frivolous at the very least. See Reyes-Romero, 364 F.

Supp. 3d at 515 (Government’s litigation position frivolous relied on incorrect position in the

face of affirmative reasons to believe its confidence in previous argument was misplaced).

When there is smoke there is fire. The amount of misconduct in this case goes far

beyond mere negligence or benign misjudgment, and a finding of bad faith is warranted. 9

C. The Requested Attorneys’ Fees and Litigation Expenses Are Reasonable

In light of the extraordinary efforts that were required on the part of defense counsel to

uncover the Government’s misconduct, Mr. DeCicco’s attorneys’ fees and costs in the amount of

$3,041,989.98 are reasonable. Miner Aff. ¶ 25. This was an unusual case, warranting an hourly

rate ranging from $485 to $1139.50, for experienced defense counsel well-suited to uncover the

Government’s misconduct. Defense counsel worked 3,538 to defend this case, a number that

was inflated by the need to review the Government’s untimely productions and to prepare a

motion to dismiss while simultaneously preparing for trial. The Government should, in turn, be

required to compensate Mr. DeCicco for his fees and expenses in successfully defending this

case.

III. CONCLUSION

For the foregoing reasons, the Court should find that the United States Attorney’s Office

and the FBI are jointly and severally liable for Mr. DeCicco’s attorneys’ fees and litigation

expenses in the amount of $3,041,989.98 under the Hyde Amendment.

Dated: November 12, 2019 Respectfully submitted,

9
Although the Court did not find bad faith on the part of the U.S. Attorney’s Office on the eve of trial, when the
Government’s conduct first came to light, that was in the context of a rare motion to dismiss for prosecutorial
misconduct. Even if the evidence of bad faith was insufficient to warrant dismissal of the Indictment, it is
nevertheless sufficient to support a finding of bad faith by a preponderance of the evidence such that an award of
fees under the Hyde Amendment is appropriate.

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GARY DECICCO

By his attorneys,

/s/ Tracy A. Miner

Tracy A. Miner (BBO No. 547137)
Miner Orkand Siddall LLP
470 Atlantic Ave, 4th Floor
Boston, MA 02110
Tel.: (617) 273-8377
Fax: (617) 273-8004
tminer@mosllp.com

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document was served by ECF on counsel for the
Government on November 12, 2019.

/s/ Tracy A. Miner

Tracy A. Miner

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