A developer accused of defrauding foreign investors in an alleged EB-5 visa scheme has filed a motion to dismiss his indictment, or in the alternative, a request for a Kastigar hearing in United States v. Quiros. The defendant is alleging that prosecutors reviewed communications with his counsel.
The developer, Ariel Quiros, was indicted in May 2019. Prior to the indictment, Quiros was represented by attorney David Gordon in response to an SEC investigation. As part of the investigation, an SEC receiver turned over Quiros’s laptop and other materials in his office to prosecutors in the criminal case., The prosecutors hired a third-party vendor to divide the privileged emails from other documents, however, despite these controls, the vendor turned over at least 2,000 emails between Quiros and Gordon.
All parties were well aware that Gordon represented Quiros; in fact, Gordon accompanied Quiros to one interview with the SEC.
Quiros alleges in his motion to dismiss that the government reviewed the privileged emails and relied on them in bringing its indictment against him.
Quiros also accuses the government of executing a search warrant on his email account without assigning a taint team to review and segregate privileged emails.
Quiros has threatened filing additional motions to suppress evidence.
The District of Vermont’s order on Quiros’s motion will be telling. The government would be well advised to institute taint protocol when reviewing emails to avoid potentially fatal flaws in its prosecutions.