GoalTwo former television executives ensnared in the latest salvo of the long-running FIFA corruption scandal have petitioned the Eastern District of New York for an opportunity to review cellphone evidence from a government cooperating witness that might have been languishing on the shelf for the past six years.

Carlos Martinez and Hernan Lopez (the “Defendants”) are just the latest sports marketing operatives to be caught up in the wide-ranging probe that centers on bribes paid in exchange for broadcasting rights for lucrative soccer tournaments. The first FIFA corruption trial took place in 2017. During the course of that trial it became clear that Alejandro Burzaco, a former executive of the sports communication firm Torneos y Competencias, was the government’s primary cooperating witness. Martinez and Lopez have been charged with, among other things, conspiring with Mr. Burzaco to commit wire fraud and launder money. Now, Defendants have sought to subpoena Mr. Burzaco’s cellphone evidence which the government apparently claims it never reviewed.

In their recent filing seeking the subpoena (the “Motion”), the Defendants note that in 2017 Mr. Burzaco testified that he used an iPhone and a BlackBerry during the timeframe of the alleged conspiracy, that he turned those phones over to his attorneys in 2015, and that – to his knowledge – those phones had not been wiped of their data.[1] According to the Motion, when asked for that cellphone data the government indicated that it “does not have, and has never had, possession of any electronic devices – including cell phones or computers – of Alejando Burzaco’s and thus has no images to produce[,]” and that is likewise does not have any ESI from the phones.[2] This despite the fact that Mr. Burzaco testified to taking part in approximately 50 proffers with the DOJ and FBI, and the fact that Defendants have indicated that they received evidence of encrypted messages between Burzaco and others which were apparently taken from the phones of third parties.[3]

The Defendants have taken the position that the phones are likely to have admissible evidence tending to bear on Burzaco’s credibility and whether they were actual participants in the alleged conspiracy.

Defendants’ efforts to subpoena Burzaco’s phones is a smart tactical move for several reasons.

First, the Motion is an opportunity for the Defendants to play some offense, while potentially strengthening their defense. The Motion raises several questions about the government’s case, which Defendants likely hope to use to highlight reasonable doubt. Why would the government have declined to take possession of and review Burzaco’s cellphones? Especially if it has since done so with other cooperating witnesses? How did the government corroborate intelligence gleaned from Burzaco?

Second, locating and producing the cellphone data is unlikely to be burdensome given Burzaco’s testimony. During the 2017 trial, Burzaco indicated that his counsel operated according to best practices by obtaining and sequestering Burzaco’s cellphone records – here, they apparently went so far as to take the literal phones. Maintaining control over such records is not only a smart tactical decision by any defense team, it is also an ethical obligation as part of an attorneys’ duty of competence regarding the handling of Electronically Stored Information.[4] If Burzaco’s attorneys maintain access to the cellphones, providing the necessary data is only a matter of securing a copy, or “image,” of those phones’ data.[5]

Finally, securing access to Burzaco’s cellphone records could change the substantive dynamics of this case. The typical smartphone contains, at a minimum, logs of the user’s calls, texts and emails, voicemails, contact information, calendars, web browsing and search engine history, photos and videos, and GPS information.[6] While some of this information might be retrievable via a company’s servers or cloud software, much of it “may be irretrievable from anywhere but the device itself.”[7] Defendants’ access to even a limited subset of such information would provide an invaluable opportunity to test Burzaco’s credibility and potentially poke holes in the government’s case.

Any opportunity for a criminal defendant to go on the offensive is one which should be carefully considered. Especially where, as here, valuable cellphone records may be at stake. Here, defense counsel’s creative offensive play has created an opportunity to change the narrative and, perhaps, the fundamentals of this case.

 

[1] Defendants Hernan Lopez and Carlos Martinez’s Application for Pretrial Subpoena Pursuant to Fed. R. Crim. P. 17 and Letter Rogatory, United States v. Carlos Martinez, Hernan Lopez, et al., No. 15-cr-252 (PKC) at 9-11.

[2] Id. at 11-13.

[3] Id. at 13, 15.

[4] Forensic Examination of Digital Devices in Civil Litigation: The Legal, Ethical and Technical Traps, 24 The Professional Lawyer, American Bar Association (March 1, 2016), https://www.americanbar.org/groups/professional_responsibility/publications/professional_lawyer/2016/volume-24-number-1/forensic_examination_digital_devices_civil_litigation_legal_ethical_and_technical_traps/#ref38.

[5] The Motion also seeks a Letter Rogatory for certain data from Burzaco’s BlackBerry phone, which the Defendants claim is accessible via Torneos y Competencias’ “BlackBerry Enterprise Server.” The practicability and procedure for accessing such data via a Letter Rogatory is outside the scope of this post. Typically, the ability to secure cellphone data, and the scope of such available data, depends on a company’s data management policies.

[6] See Mobile Devices, Data Collection and the Next E-discovery Front, FTI Technology, https://www.ftitechnology.com/resources/white-papers/mobile-devices-data-collection-and-the-next-e-discovery-front.

[7] Id.