Case 3:14-cr-00534-CRB Document 59 Filed 11/13/15 Page 1 of 5 1 5 LATHAM & WATKINS LLP Daniel M. Wall (Bar No. 102580) dan.wall@lw.com Ashley M. Bauer (Bar No. 231626) ashley.bauer@lw.com 505 Montgomery Street, Suite 2000 San Francisco, California 94111-6538 Telephone: +1.415.391.0600 Facsimile: +1.415.395.8095 6 Attorneys for Defendant Abraham S. Farag 2 3 4 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 UNITED STATES OF AMERICA, 12 Plaintiff, 13 v. 14 15 16 17 18 JOSEPH J. GIRAUDO, RAYMOND A. GRINSELL, KEVIN B. CULLINANE, JAMES F. APPENRODT, and ABRAHAM S. FARAG, Defendants. CASE NO. CR 14-00534 CRB DECLARATION OF ASHLEY M. BAUER IN SUPPORT OF DEFENDANTS’ NOTICE OF MOTION AND MOTION TO SUPPRESS EVIDENCE; MEMORANDUM OF POINTS AND AUTHORITIES The Honorable Charles R. Breyer Courtroom 6, 17th Floor Date: January 21, 2016 Time: 10:00 am 19 20 21 22 23 24 25 26 27 28 ATTORNEYS AT LAW SAN FRANCISCO DECLARARTION OF ASHLEY M. BAUER CASE NO. CR 14-00534-CRB Case 3:14-cr-00534-CRB Document 59 Filed 11/13/15 Page 2 of 5 1 I, Ashley M. Bauer, declare as follows: 2 1. I am a partner at the law firm of Latham & Watkins, LLP, licensed to practice law 3 in the State of California, admitted to practice before this Court, and counsel for Defendant 4 Abraham S. Farag in this matter. 5 2. Pursuant to Criminal Local Rule 47-2(b), I submit this declaration in support of 6 the accompanying Defendants’ Notice of Motion and Motion to Suppress Evidence; 7 Memorandum of Points and Authorities. 8 9 10 11 3. I have personal knowledge of the matters set forth herein, except those matters stated upon information and belief, which I believe to be true. If called to testify as a witness, I would testify competently under oath. 4. Attached as Exhibit A is a true and correct copy of a July 2, 2015 email from 12 counsel for the Government to defense counsel, stating that the Government “did not obtain any 13 electronic intercept orders from the court, nor did it submit to the court any applications for 14 wiretap or other electronic surveillance authorizations” in connection with the investigation of 15 this case. 16 5. Attached as Exhibit B is a true and correct copy of a September 3, 2015 letter 17 from counsel for the Government to defense counsel, disclosing the specific locations of 18 stationary audio and video recording devices at the 401 Marshall Street entrance to the San 19 Mateo County courthouse. 20 6. Attached as Exhibit C is a diagram of the 401 Marshall Street entrance to the San 21 Mateo County courthouse. The measurements on the diagram are true and correct upon 22 information and belief. 23 7. Attached as Exhibit D (filed under seal) is a true and correct copy of a 24 spreadsheet titled “NDRE Voluntary Disclosure: San Mateo Stationary A/V,” which I received 25 from counsel for the Government on September 17, 2015. 26 8. As indicated on Exhibit D, the Government has identified 362 audio and video 27 files as being recorded by electronic listening devices placed at the San Mateo County 28 courthouse. On information and belief, these files total over 200 hours of recordings. ATTORNEYS AT LAW SAN FRANCISCO 1 DECLARATION OF ASHLEY M. BAUER CASE NO. CR 14-00534-CRB Case 3:14-cr-00534-CRB Document 59 Filed 11/13/15 Page 3 of 5 1 9. As indicated by the “BEG TIME” and “END TIME” on Exhibit D, the recordings 2 from listening devices at the San Mateo County courthouse often began more than an hour 3 before the auctions started and generally ran until after the auctions concluded, in some cases for 4 up to five hours continuously. 5 10. Attached as Exhibit E is a true and correct copy of the Declaration of Roahn 6 Wynar, a Special Agent of the Federal Bureau of Investigation, which I received from counsel 7 for the Government on October 1, 2015. 8 9 11. Attached as Exhibit F (filed under seal) is a true and correct copy of the video and audio recording with file number 1D045.002.avi, which shows several individuals talking into 10 their cellphones away from the auction area. Other individuals can be heard (but not always 11 seen) speaking on cellphones. 12 12. Attached as Exhibit G (filed under seal) is a true and correct copy of the audio 13 recording with file number 1D564.001_part1.wav, which captures both ends of a cell phone 14 conversation at approximately minute 27:20. 15 13. Attached as Exhibit H (filed under seal) is a true and correct copy of a 16 surveillance photograph bearing Bates number NDRE-SM100125-W-DSC-0256, which shows 17 Defendant Raymond Grinsell talking to another individual next to the sprinkler box in which the 18 Government hid an eavesdropping device. 19 14. Attached as Exhibit I (filed under seal) is a true and correct copy of a still from 20 the video and audio recording with file number 1D566.001.avi at 19:55, which shows alleged co- 21 conspirator Dan Rosenbledt speaking privately with an unknown woman near the sprinkler box 22 in which the Government hid an eavesdropping device. 23 15. Attached as Exhibit J (filed under seal) is a true and correct copy of a still from 24 the video and audio recording with file number 1D034.007.avi at 23:34, which shows alleged co- 25 conspirator Dan Rosenbledt sitting in a chair adjacent to the sprinkler box in which the 26 Government hid an eavesdropping device, while speaking on his cellphone. 27 28 ATTORNEYS AT LAW SAN FRANCISCO 16. Attached as Exhibit K (filed under seal) is a true and correct copy of a still from the video and audio recording with file number 1D085.001.avi at 3:07, which shows alleged co2 DECLARATION OF ASHLEY M. BAUER CASE NO. CR 14-00534-CRB Case 3:14-cr-00534-CRB Document 59 Filed 11/13/15 Page 4 of 5 1 conspirator Dan Rosenbledt standing next to the chair adjacent to the sprinkler box in which the 2 Government hid an eavesdropping device, while speaking on his cellphone. 3 17. Attached as Exhibit L (filed under seal) is a true and correct copy of a still from 4 the video and audio recording with file number 1D230.003.avi at 17:57, which shows alleged co- 5 conspirator Dan Rosenbledt speaking privately with an unknown woman adjacent to the 6 sprinkler box in which the Government hid an eavesdropping device. 7 18. Attached as Exhibit M (filed under seal) is a true and correct copy of a still from 8 the video and audio recording with file number 1D453.001.av at 13:49, which shows alleged co- 9 conspirator Dan Rosenbledt and an unknown man, having walked away from others to have a 10 11 private discussion, speaking in front of the courthouse entrance. 19. Attached as Exhibit N (filed under seal) is a true and correct copy of an FBI 12 report bearing Bates number NDRE-FBI-FISUR-000056. The report states that agents observed 13 Defendant Kevin Cullinane and alleged co-conspirator Craig Rogers abruptly separate 14 themselves from the auction crowd, engage in a brief discussion, and then return to the auction 15 crowd on at least four occasions. The report also states that agents observed alleged co- 16 conspirator Rosenbledt speaking into Defendant Cullinane’s ear. 17 20. Attached as Exhibits O and P (filed under seal) are true and correct copies of the 18 recordings with file numbers 1D098.002_part2.wav and 1D098.002_part3.wav, respectively. At 19 approximately minute 52 of file 1D098.002_part2.wav and continuing onto 20 1D098.002_part3.wav, the recordings capture alleged co-conspirator Dan Rosenbledt and 21 Defendant Cullinane discussing private matters such as criticisms of business partners, opinions 22 on attorneys with whom the speakers had had interactions during the course of business, whether 23 a particular business partner should be allowed to continue with the group, and issues related to 24 funding certain purchases. The recordings indicate that while Rosenbledt and Cullinane were 25 engaged in this conversation, a man approached them and requested directions to traffic court. 26 After providing directions, Rosenbledt and Cullinane resumed their discussion in a lower 27 volume, while the man’s footsteps can be heard retreating from them. The conversation between 28 Rosenbledt and Cullinane lasts approximately 35 minutes. ATTORNEYS AT LAW SAN FRANCISCO 3 DECLARATION OF ASHLEY M. BAUER CASE NO. CR 14-00534-CRB Case 3:14-cr-00534-CRB Document 59 Filed 11/13/15 Page 5 of 5 1 21. Attached as Exhibit Q (filed under seal) is a true and correct copy of an FBI report 2 of an interview of Defendant Cullinane, bearing Bates number NDRE-FBI-I-000101, in which 3 Defendant Cullinane describes the use of joint venture arrangements. 4 22. On October 3, 2013, Chris Wheeler, then counsel for the Government, informed 5 me in an oral communication that the Government recognized that there was legitimate joint 6 bidding activity at the auctions and would not challenge that conduct. 7 23. Attached as Exhibit R (filed under seal) is a true and correct copy of an FBI report 8 of an interview of alleged co-conspirator Mohammad Rezaian, bearing Bates number NDRE- 9 FBI-I-000221, in which Rezaian describes auction behavior that Defendants and others referred 10 11 to as “piggybacking.” 24. Attached as Exhibit S (filed under seal) is a true and correct copy of an FBI report 12 bearing Bates number NDRE-FBI-FISUR-000068, which states that a recording device was 13 activated but contains no report of visual surveillance. 14 25. Attached as Exhibit T (filed under seal) is a true and correct copy of an FBI report 15 bearing Bates number NDRE-FBI-FISUR-000071, which states that a recording device was 16 activated but contains no report of visual surveillance. 17 I declare under penalty of perjury that the foregoing is true and correct. 18 Executed on November 13, 2015, in San Francisco, California. 19 20 21 /s/ Ashley M. Bauer Ashley M. Bauer Attorney for Defendant ABRAHAM S. FARAG 22 23 24 25 26 27 28 ATTORNEYS AT LAW SAN FRANCISCO 4 DECLARATION OF ASHLEY M. BAUER CASE NO. CR 14-00534-CRB