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UNITED STATES DISTRICT COURT

DISTRICT MASSACHUSETTS

_____________________________
)
UNITED STATES OF AMERICA ) Criminal No. 14-CR-10221-WGY
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v. )
)
MICHAEL AFFA, )
ANDREW AFFA, )
MITCHELL BROWN, )
CHRISTOPHER PUTNAM, and )
CHRISTOPHER NIX, )
a/k/a GABE NIX, )
)
Defendants. )
_____________________________ )


GOVERNMENTS MOTION FOR PROTECTIVE ORDER

The United States respectfully requests that the Court enter the proposed protective order
(the Proposed Order), attached hereto as Exhibit A, relating to documents and information to
be produced in this case, for the reasons stated herein. Although the government negotiated the
terms of the Proposed Order with counsel for each of the five defendants and even revised the
Proposed Order to address certain objections that were raised, at this time the government has
not received assent to the Proposed Order from the defendants.
Background on the Charges
On J uly 23, 2014, the defendants were charged in an Indictment with securities fraud in
violation of 18 U.S.C. 78j(b) and 78ff, 17 C.F.R. 240.10b5, and 18 U.S.C. 2; wire fraud in
violation of 18 U.S.C. 1343, 1349, and 2; and conspiracy to commit securities fraud and wire
fraud in violation of 18 U.S.C. 371. The charges arise out of an FBI undercover operation
whereby the defendants engaged in a scheme to artificially inflate the price of Amogear Inc.s
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stock through manipulative trading and the issuance of false press releases and promotional
materials about the company, which was actually nothing more than a cardboard box of sample
clothing items. The defendants planned to sell Amogears stock to the public at the inflated
prices that they had engineered and then divide the proceeds amongst themselves. What the
defendants did not realize was that Amogears CEO was an FBI undercover agent and the
worthless Amogear stock that they intended to dump on the public had been provided to them by
a witness cooperating with the government.
Negotiations with Defense Counsel
On August 12, 2014, the government circulated a draft protective order to counsel for
each of the defendants and asked for their views, in the hope of reaching an agreement and filing
an assented-to motion with the Court. Then, over the course of the following weeks, the
government corresponded with and spoke with counsel for each of the defendants about the draft
protective order, which, among other things, included a provision requiring prospective
witnesses to endorse a copy of the order. During these discussions, the government explained
the need for a protective order, as set forth below, and listened to any concerns expressed by
defense counsel. When counsel for certain of the defendants expressed concern that there could
be a chilling effect on potential witnesses if such individuals were required to sign an agreement
to be bound by the protective order, the government responded by removing any such
requirement and recirculated the revised protective order to all defense counsel. Despite the
governments explanations as to the need for a protective order and the governments attempt to
reach agreement with defense counsel by revising the draft order, defense counsel has now taken
the position that they will not agree to any protective order without the benefit of reviewing the
governments motion.
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Good Cause for the Entry of the Protective Order
Pursuant to Fed. R. Crim. P. 16(d)(1), there is good cause for the entry of the Proposed
Order because the discovery materials will contain, among other things: (1) the identity of, and
information related to, government witnesses, including a confidential informant; (2) bank
records and phone records of several defendants; and (3) brokerage account information and
shareholder lists containing personal or other confidential information.
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Moreover, the Proposed
Order is similar to those entered in a number of financial fraud cases prosecuted in this District.
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1. The Confidential Informant
The government will produce discovery materials, including video and audio recordings
and e-mails, that disclose a confidential informant whose identity has not been made public.
While this individuals identity will obviously become public in the event that he/she is called to
testify at trial, as is likely, the protection of witnesses from coercion or intimidation provides
good cause for the entrance of a protective order. See, e.g., United States v. Fort, 472 F.3d 1106,
1131 (9th Cir. 2007) (The Rules Advisory Committee specifically designated Rule 16(d)(1) to
provide a mechanism for witness safety and to grant considerable discretion to the district court
in drafting orders under that rule.); Fed. R. Crim. P. 16 Advisory Committees Notes (1974
Amendment). Though none of the defendants in this case have violent criminal histories, the
confidential informant has expressed safety concerns to the government. Furthermore, witness

1
This is a non-exhaustive list of the types of information that may be included in the discovery
materials because, as is often the case, the government may obtain additional discoverable non-
public information during its ongoing investigation and prosecution of this matter.
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See, e.g., United States v. Caplitz, 12-CR-10172-WGY; United States v. J ames Prange, et al.,
11-CR-10415-NMG; United States v. Black-White, et al., 11-CR-10416; United States v.
Sammon, 11-CR-10323-RGS; United States v. Celia Thomas, 11-CR-10172-WGY; United
States v. Robert H. Odimegwu, 11-CR-10137-J LT; United States v. Arthur Samuels, 10-CR-
10347-MLW; United States v. Prince Charles Eweka, 10-CR-10356-PBS; United States v.
Michael David Scott, et al., 10-CR-10264-RGS; United States v. Sentner, 09-CR-10099-NG;
United States v. Eric L. Levine, et al., 08-CR-10121-GAO.
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intimidation can take many forms, including substantial negative pretrial publicity and criticism.
A protective order, such as that sought in this case, prevents such damage before it happens.
See, e.g., Alderman v. United States, 394 U.S. 165, 185 (1969) (the trial court can and should,
where appropriate, place a defendant and his counsel under enforceable orders against
unwarranted disclosure of the materials which they may be entitled to inspect); In re Providence
J ournal Company, Inc., 293 F.3d 1, 14 (1st Cir. 2002) (approving trial courts protective order
designed to safeguard rights before they were violated).
In addition to the foregoing, the government has a legitimate interest in protecting the
integrity of ongoing criminal investigations in which the confidential informant has been
involved. These ongoing criminal investigations could be compromised if the Proposed Order is
not entered and information related to the confidential informant is not protected at this time.
2. Bank Records, Phone Records, Brokerage Account Information, Shareholder Lists
Discovery materials to be produced will also include several defendants bank records
and phone records, as well as brokerage account information and shareholder lists containing
personal or other confidential information about other individuals and entities, some of whom
have nothing to do with this case. Courts have routinely held that protective orders are
appropriate in order to protect the privacy interests of individuals, whether or not they are parties
to the case. See Seattle Times v. Rhinehart, 467 U.S. 20, 35 n. 21, 36-37 (1984); see also Gill v.
Gulfstream Park Racing Assn, Inc., 399 F.3d 391, 402-403 (1st Cir. 2005) (privacy interests
should be weighed when evaluating good cause). Here, absent a protective order, the release of
discovery information raises substantial privacy concerns not only for some of the defendants
whose financial information could be disclosed but also for others, including individuals who
may have transacted business with one or more of the defendants and innocent shareholders.
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Defendants Will Not Be Prejudiced By the Entry of the Proposed Order
To the extent that defendants argue that the Proposed Order would make it more difficult
for them to interview potential defense witnesses, this argument is unpersuasive. As written, the
Proposed Order does not prevent defendants from sharing any discovery information with
potential witnesses. It merely requires that witnesses be informed that they cannot disclose the
information. Witnesses are not required to sign anything, or even be identified to the
government or the Court. In short, the Proposed Order has been drafted so as to minimize, if not
entirely eliminate, any speculative chilling effect it may have on potential defense witnesses,
while protecting the very real privacy and security concerns outlined by the government above.
CONCLUSION
For the foregoing reasons, the government respectfully requests that the Court enter the
Proposed Order attached hereto as Exhibit A.
Respectfully submitted,
CARMEN M. ORTIZ
United States Attorney

By: /s/ Andrew J . Palid
ANDREW J . PALID
ERIC A. FORNI
Special Assistant U.S. Attorneys

VASSILI THOMADAKIS
Assistant U.S. Attorney
Dated: August 27, 2014


CERTIFICATE OF SERVICE

I certify that on August 27, 2014, this document was filed through the ECF system, which will
provide electronic notice to counsel as identified on the Notice of Electronic Filing.

/s/ Andrew J . Palid
ANDREW J . PALID
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