USA v. Alrai

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Civil No. 1:18-cr-192-JL
Opinion No. 2021 DNH 075
Imran Alrai
ORDER
Defendant Imran Alrai moves for leave to conduct discovery related to his post-
conviction, pre-sentencing Motion to Dismiss based on alleged violations of Brady v. Maryland,
373 U.S. 83 (1963). For the reasons discussed below, the court grants the motion in part and
denies it in part.
Background
Around July 2018, John J. Commisso, counsel for United Way, hired Greg Naviloff, a
Director in the Dispute Advisory Services practice at RSM US LLP, to conduct an internal
investigation into the losses the United Way incurred from its engagement with Alrai. RSM also
completed other work for the United Way, including a data security investigation, and continued
working for the United Way into 2019.1 Alrai was indicted in November 2018. About six
months later, the prosecution engaged Naviloff as an expert witness on the issue of the United
Way’s loss resulting from Alrai’s alleged fraud.2 At trial, Naviloff testified that the prosecution
hired him “to provide the evaluation that [he] already had done . . . .”3
1 December 3, 2020 Evidentiary Hearing Transcript (doc. no. 214) at 33:6-9.
2 See doc. no. 164-22.
3 December 11, 2019 Trial Transcript (doc. no. 130) at 85:15.
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At the close of the December 2019 bench trial, this court found Alrai guilty of 44 counts
of wire fraud, money laundering, and transportation of stolen property. The court acquitted Alrai
on nine counts of money laundering, aggravated identity theft, and failure to file the FBARs.
After the trial, defense counsel submitted a number of discovery requests, many of which
pertained to Naviloff’s opinion, and the prosecution produced materials in response to some of
these requests. In September 2020, Alrai filed a motion (“Brady motion”) requesting a new trial
or the dismissal of the charges, arguing that he post-conviction discovery revealed that the
prosecution suppressed exculpatory evidence in violation of Brady. Id.
In the Brady motion, Alrai contends, in part, that the purportedly suppressed evidence
“would have provided counsel with an opportunity to challenge the good faith and integrity of
the [government’s] entire investigation” by showing that “the government’s investigation, expert,
witnesses, and case against Mr. Alrai were largely orchestrated by [the United Way’s] attorney,
John Commisso,” who exhibited a bias against Alrai and withheld exculpatory evidence.4 Alrai
also argues that the allegedly suppressed evidence, including billing information for RSM’s
services for the prosecution, could have been used to impeach Naviloff, as they revealed that he
partially based his opinion on the analysis of a relatively inexperienced IT associate—contrary to
Naviloff’s testimony at trial.5
This court held a three-day evidentiary hearing on the Brady motion on November 17,
December 3, and December 7, 2020. The parties then submitted post-hearing briefs. On March
17, 2021, Alrai moved for discovery related to the Brady motion. Specifically, Alrai seeks: “(1)
4 Doc. no. 164 at 2.
5 The court does not attempt to summarize each of the arguments in the Brady motion here, but
rather to briefly recount the arguments that are most pertinent to this discovery motion.
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unredacted copies of the 19 emails listed in the pre-trial privilege log; (2) any emails sent to,
received by, forwarded to and by [both internal and external recipients] the US Attorney’s Office
regarding the RSM billing records that are the subject of the [Brady motion]; (3) unredacted
copies of the emails that are the subject of the post-conviction privilege log; and (4) any
documents or information that are relevant to either the merits of the defendant’s Brady claim or
the remedy sought for that alleged Brady violation.”6 Alrai had already sent the prosecution a
letter in February 2021 listing the first three discovery requests.7 The prosecution disputes that
Alrai is entitled to the requested discovery and objects to this motion.8
Applicable legal standard
Alrai avers that he is entitled to the requested discovery under Brady. “Under Brady, the
government has a duty to disclose evidence in its possession that is favorable to the accused and
material to guilt or punishment.” United States v. Prochilo, 629 F.3d 264, 268 (1st Cir. 2011).
“The government is primarily responsible for deciding what evidence it must disclose to the
defendant under Brady.” Id. (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987)).
“When the defendant seeks access to specific materials that the government maintains are not
discoverable under Brady, however, a trial court may in some instances conduct an in camera
review of the disputed materials.” Id. (citing Ritchie, 480 U.S. at 58 n.15)).
But “Brady does not permit a defendant ‘to conduct an in camera fishing expedition
through the government’s files.’” United States v. Caro-Muniz, 406 F.3d 22, 29 (1st Cir. 2005)
6 Doc. no. 251 at 3.
7 Doc. no. 249-1 at 2-3.
8 Doc. no. 254.
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(quoting United States v. Pou, 953 F.2d 363, 367 (8th Cir.1992)). Thus, to warrant in camera
review of the materials, the defendant “must make some showing that the materials in question
could contain favorable, material evidence.” Prochilo, 639 F.3d at 269 (internal citations
omitted); see United States v. Espinal-Almeida, 699 F.3d 588, 618 (1st Cir. 2012) (“To establish
a Brady violation a defendant must provide the court with at least some indication that the
materials he seeks to access contain material and potentially exculpatory evidence.” (internal
quotation omitted)). The defendant cannot rely on “mere speculation” to make this showing, but
should instead “articulate with some specificity what evidence he hopes to find in the requested
materials, why he thinks the materials contain this evidence, and finally, why this evidence
would be both favorable to him and material.” Prochilo, 639 F.3d at 269 (citing Rosario-Peralta,
175 F.3d at 55-56).
Analysis
A. Request 3: Unredacted copies of the emails listed in the post-conviction
privilege log
This request pertains to a September 9, 2020 privilege log that Commisso created.9 The
documents listed on the post-conviction privilege log are withheld as “[p]rivileged, non-
responsive, [and] Data Security Investigation.” Some entries are additionally withheld because
they contain information pertaining to “eDiscovery [p]rocedures.” Alrai argues that the United
Way waived any attorney-client privilege over its documents by failing to object to RSM being
hired as the prosecution’s expert and by failing to quash the grand jury subpoena issued to
United Way in June 2018, which requested “any and all documents concerning Imran Alrai and
9 September 9, 2020 Privilege Log (doc. no. 181-1).
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Digitalnet Technology Solutions, LLC.”10 Alrai also argues that the term “data security” has not
been defined, and the privilege asserted over documents on this subject matter is “baseless.”11
Alrai’s arguments are unavailing. He provides no support for the assertion that the
United Way’s failure to quash the grand jury subpoena constitutes a waiver of privilege. Also,
the United Way has been clear about the basis for its assertion of attorney-client privilege over
documents pertaining to the data security investigation that RSM conducted. For example,
Commisso explained in a September 18, 2020 declaration that “[t]here are other areas of RSM’s
work and [the United Way’s] internal investigation which are unrelated to Naviloff’s loss
analysis and which remain privileged, including for example documents regarding the data
security investigation.”12 Commisso further detailed the United Way’s engagement with RSM’s
Digital Forensics and Incident Response team regarding data privacy and security issues in a
November 20, 2020 filing.13 Moreover, the court previously recognized that the materials related
to the data security investigation are not part of this case and stated in a discovery order that any
production ordered regarding RSM’s material and activities is limited to RSM’s forensic
accounting investigation, and not RSM’s other, unrelated work for the United Way.14 Finally,
contrary to Alrai’s contention, Commisso testified during the Brady motion hearing that the
10 June 4, 2018 Grand Jury Subpoena (doc. no. 251-2).
11 Doc. no. 251 at 14.
12 Doc. no. 170-4 at ¶ 35.
13 Doc. no. 198 at 3-5.
14 August 24, 2020 Discovery Order (doc. no. 161) at 2.
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United Way “has always asserted the privilege with respect to the data security investigation,”15
including when the prosecution hired Naviloff as an expert.16
Alrai does not articulate with the necessary specificity what he thinks he will find in the
post-conviction privilege log or why the communications in the log would be favorable and
material, as is needed to justify discovery under Brady. See Prochilo, 639 F.3d at 269. Instead,
Alrai speculates that the data security privilege is a “ruse” and contends that the documents
should be turned over because Commisso and the prosecution previously suppressed evidence
and are generally unreliable. The court denies this request, as Alrai does not make an adequate
showing for the disclosure of the evidence under Brady, and the court finds no reason to change
course and stop honoring a privilege that the United Way has consistently asserted.17
B. Request 1: Unredacted copies of the emails listed in a pre-trial privilege log
Alrai seeks unredacted copies of 19 emails listed in a pre-trial privilege log that
Commisso created on November 26, 2019.18 The genesis of the privilege log is relevant to the
court’s analysis. Naviloff’s October 17, 2019 expert report contains a footnote stating that, in the
course of developing his report, RSM “collected” a number of potentially relevant United Way
documents, including laptop images, email records, and “documents relevant to [the United
15 December 7, 2020 Evidentiary Hearing Transcript (doc. no. 232) at 86:7-11.
16 December 3, 2020 Evidentiary Hearing Transcript (doc. no. 214) at 44:13-24.
17 Alrai also requests unredacted copies of the documents in the post-conviction privilege log in
his Motion to Compel Compliance with the August 10, 2020 Discovery Order (doc. no. 181),
which Alrai describes as “a post-trial discovery motion related to forfeiture and sentencing.”
Doc. no. 251 at 1. The court expresses no opinion, at this juncture, about the arguments in the
Motion to Compel, including whether Alrai’s due process rights at sentencing require disclosure
of these documents.
18 November 26, 2019 Privilege Log (doc. no. 181-10).
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Way’s] procurement of IT related services,” which were then compiled into an e-discovery
database in which Naviloff conducted “ad hoc searches.”19 The prosecution asserts that, in
response to requests from Alrai’s counsel, it identified and produced each document in the
database that RSM viewed or accessed prior to trial.20 Commisso testified that the documents
were produced “without making a determination if [they were] relevant or not.”21 Commisso
reviewed the documents for privilege, however, and withheld 19 documents that “contain
attorney client communication” and/or are attorney work product.22
Alrai argues that the United Way waived any privilege over these documents by sharing
them with RSM and failing to quash the grand jury subpoena, and he again asserts that
Commisso and the prosecution are unreliable and previously suppressed exculpatory evidence.
The prosecution avers that it does not possess these documents and thus cannot be compelled to
produce them.
The court will review these documents in camera for two reasons, which are somewhat
separate from the parties’ arguments. First, unlike in the case of the post-conviction privilege
log, Commisso has not classified these documents as pertinent to the data security investigation
or otherwise irrelevant to RSM’s loss analysis. Since the United Way does not assert privilege
19 November 22, 2019 Chambers Teleconference Transcript (doc. no. 218) at 17:19-18:4;
October 17, 2019 Expert Report of Greg T. Naviloff (doc. no. 50-1 at 4 n.1).
20 November 22, 2019 Chambers Teleconference Transcript (doc. no. 218) at 5:14-22.
21 December 7, 2020 Evidentiary Hearing Transcript (doc. no. 232) at 102:5-12 (Testimony of J.
Commisso).
22 November 22, 2019 Chambers Teleconference Transcript (doc. no. 218) at 13:22-14:13; doc.
no. 198 at 7.
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over documents pertaining to the loss analysis that RSM conducted for it,23 it is unclear to the
court what United Way documents would be both responsive to a discovery request in this case
and privileged, such that they belong on this privilege log. Second, RSM either reviewed or
accessed the documents on the privilege log. The court does not make any judgment about the
reliability or accuracy of Commisso’s privilege determination, but the court does have
reservations about a victim’s attorney acting independently to withhold documents that the
prosecution’s expert accessed and potentially relied upon in developing his opinion. Given that
the prosecution’s expert accessed these documents and their content is unknown to the
government and unclear to the court, the court will view these documents in camera to determine
whether they are privileged and, if they are not privileged, whether they are Brady material.
C. Request 2: U.S. Attorney’s Office emails regarding the RSM billing records
Alrai seeks emails involving the U.S. Attorney’s Office which pertain to RSM billing
records for RSM’s engagement with the prosecution. The court disagrees with Alrai’s argument
that the U.S. Attorney’s Office waived privilege over all such communications when AUSA
Davis stated during the Brady motion hearing that he looked at his email inbox to find an email
containing a bill from RSM, which Alrai argues was improperly suppressed. Nor does Alrai
make a “showing that the [emails] in question could contain favorable, material evidence,”
merely by declaring that the billing records themselves were Brady material. Prochilo, 639 F.3d
at 269. The court accordingly denies this request.
23 December 3, 2020 Evidentiary Hearing Transcript (doc. no. 214) at 35:3-5.
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D. Request 4: Documents or information relevant to the defendant’s Brady claim
or the remedy sought for that alleged Brady violation
In this final request, Alrai seeks additional discovery related to his Brady claim. He
largely supports this request by recounting the purported prejudice that resulted from other
evidence that the prosecution and/or Commisso allegedly suppressed. Alrai fails to articulate the
scope or content of this request or explain its potential materiality with the requisite specificity.
The court denies this request, as it is tantamount to a “fishing expedition into the government’s
files,” which is not permitted under Brady. Caro-Muniz, 406 F.3d at 29.
Conclusion
Alrai’s discovery motion24 is granted in part and denied in part.25 The United Way is
ordered to produce to the court, for in camera review, the 19 documents listed in the November
26, 2019 privilege log, no later than April 23, 2021.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: April 16, 2021
cc: John S. Davis, AUSA
Cam T. Le, AUSA
Matthew Hunter, AUSA
Donna J. Brown, Esq.
24 Doc. no. 251.
25 The court’s in camera review of the documents in the November 26, 2019 privilege log could
reveal information that may potentially impact the court’s analysis of the other three discovery
requests in this motion. If that is the case, the court will notify counsel and let them address the
issue.
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Michael Gregory Eaton
Kevin M. Sibbernsen, Esq.
John J. Commisso, Esq.
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