Defense Supplemental Trial Brief; and Reply to Governments Response Filed on 2/23/23 — United States v. Nsahlai (Dkt. 114, E.D. Va.)

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A defense supplemental trial brief and reply to the government's response filed February 23, 2023, submitted February 24, 2023 as Document 114 by attorney Mark Petrovich of Petrovich & Walsh, P.L.C. for Rose-Marie Nsahlai in United States v. Nsahlai, Case No. 1:21-CR-234, in the U.S. District Court for the Eastern District of Virginia, ahead of a trial from February 27, 2023 through March 2, 2023. The defense objects to the admission of all electronic communications associated with Mr. Kindambu, Mr. Amankwah and Ms. Nsahlai, raising chain of custody and authenticity. It also responds to the government's position that it may offer statements as non-hearsay co-conspirator statements.

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Case 1:21-cr-00234-RDA Document 114 Filed 02/24/23 Page 1 of 5 PageID# 567




                        IN THE UNITED STATES DISTRICT COURT

                       FOR THE EASTERN DISTRICT OF VIRGINIA

                                       Alexandria Division

UNITED STATES OF AMERICA                                )
                                                        )
vs.                                                     )      Case No.: 1:21-CR-234
                                                        )
                                                        )
                                                        )
ROSE-MARIE NSAHLAI,                                     )      Court Date: February 27, 2023
                                                        )       through March 2, 2023
      Defendant.                                        )

                     DEFENSE SUPPLEMENTAL TRIAL BRIEF;
             AND REPLY TO GOVERNMENTS RESPONSE FILED ON 2/23/23

         The Defense respectfully submits this supplemental Trial Brief and Reply to

Government’s Response (original Trial Brief submitted on 2/21/23).

       1. Based on the exhibits being offered and the anticipated witness testimony, the
defense objects to the admission of all electronic communications associated with Mr.
Kindambu, Mr. Amankwah and Ms. Nsahlai

                a. Chain of Custody/Authenticity

         The Government intends to offer into evidence a substantial amount of electronic

communications in the form of emails and message communications relating to the three

individuals noted above. With regard to the emails, upon information and belief, the

Government is apparently relying on a process by which it obtained access to an online folder

from an email sent to Oath Holdings, Inc. An online folder was then forwarded to Agent Sublett

who forwarded it to Special Agent Nash. She then downloaded the folder, and separated it into

two subfolders based on an analysis of what may have been “privileged.” Her created folders

were then copied by Special Agent Erwin, who then transferred them to a hard drive, which the

government used to produce its proposed exhibits. There is no indication or offering of exactly

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 Case 1:21-cr-00234-RDA Document 114 Filed 02/24/23 Page 2 of 5 PageID# 568




how Oath Holdings, Inc., a private company, archives its data; so information relating to who has

access to it, who handles transferring the data to different “cloud” spaces over time, what

security measures are undertaken to ensure no data is accessed by unauthorized entities, how the

integrity of the data is maintained and/or how often it’s files have been jeopardized, hacked,

corrupted and/or subject to viruses or any other negative impact. While this would be much

easier to address if the Government were producing any participants in the communications,

apparently they are not intending to do so. Accordingly, these other issues must be addressed

before the Government may try to move this information into evidence.

       The Government is also offering into evidence WhatsApp message communications

concerning the same individuals. Upon information and belief, these communications were

produced by obtaining a cell phone that was one of five that apparently Didier Kindambu owned.

The chain of custody with regard to that recovery is not adequately established. It was left at his

house after he was arrested, and remained there for a substantial period of time (it is believed to

be months). He had given his password to the phone to his daughter and son, and the phone was

not secured in any way. In addition to any other individuals who may have had access to the

phone over that extended period of time, his children’s Aunt was living with them. The phone

then passed from Kindambu’s daughter, to his attorney, to Special Agent Baker, to Special Agent

Erwin. She then performed an extraction using a “Grayshift device.” The information sought to

be introduced by the Government is based on Cellebrite software, which software has a known

potential drop-out of data under certain circumstances. Nonetheless, there is no proposed expert

to testify regarding what a “Grayshift device” is or about Cellebrite, and how and why people

should rely on the produced data as being accurate. As with the emails described above, this

issue is much easier to address if the Government were producing any participants in the


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 Case 1:21-cr-00234-RDA Document 114 Filed 02/24/23 Page 3 of 5 PageID# 569




communications, apparently they are not intending to do so. Accordingly, these other issues

must be addressed before the Government may try to move this information into evidence.

        For these reasons, the communications should be excluded.

               b. Foundation

        As noted above, the Government is not intending to produce any of the witnesses who

participated in the electronic communications it seeks to offer into evidence. There will be no

one to verify that he or she was actually the one who sent or received the communication. There

are a number of ways a communication may not on its face reflect accurately who sent or

received it.

        For these reasons also, the communications should be excluded.

               c. Marital Privilege

        For the reasons previously stated, on this basis also, the communications involving Ms.

Nsalai and Mr. Kindambu should be excluded.



       2. If the Court allows any of the electronic communications involving Kindambu,
Amankwah and Ms. Nsahlai, the WhatsApp message chain is admissible for the reasons
previously stated.

        To supplement the previous arguments to the court, it should be noted that there is no

issue as to whether it is “relevant.” The Government itself noted in its response (footnote 1) that

“[t]he Government may offer the statements as non-hearsay co-conspirator statements made

during and in furtherance of the conspiracy . . . . “ Despite seemingly arguing to the contrary, the

Government apparently concedes this point.

       3. In order to avoid multiple subpoenas, the Defense has relied on the
Government’s subpoenas relating to their anticipated witnesses. Accordingly, the Defense
requests that the Government not excuse any witness without first checking with counsel as
to whether the wintes is needed.

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 Case 1:21-cr-00234-RDA Document 114 Filed 02/24/23 Page 4 of 5 PageID# 570




                                              Respectfully Submitted,

                                              ROSE-MARIE NSAHLAI
                                              By Counsel




WE ASK FOR THIS:


________/s/_____________
Mark Petrovich
Virginia Bar No. 36255
Counsel for the Defendant
PETROVICH & WALSH, P.L.C.
10605 Judicial Drive, Suite A-5
Fairfax, Virginia 22030
Phone: (703) 934-9191
Fax: (703) 934-1004
Email: mp@pw-lawfirm.com




____________/s/_______________________
Jessica A. Richardson (VSB# 90158)
Counsel for Defendant
333 North Fairfax Street, Suite 310
Alexandria, Virginia 22314
jrichardson@pnalaw.com
T: (703) 519-7100
F: (703) 519-7104
jrichardson@pnalaw.com




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 Case 1:21-cr-00234-RDA Document 114 Filed 02/24/23 Page 5 of 5 PageID# 571




                           CERTIFICATE OF SERVICE

       I hereby certify that on or before the 24th day of February, 2023, I will
electronically file the foregoing with the Clerk of Court using the CM/ECF system, which
will then send a notification of such filing (NEF) to all parties of record.



_____________/s/_________________
Mark Petrovich
Virginia Bar No. 36255
Counsel for the Defendant
PETROVICH & WALSH, P.L.C.
10605 Judicial Drive, Suite A-5
Fairfax, Virginia 22030
Phone: (703) 934-9191
Fax: (703) 934-1004
Email: mp@pw-lawfirm.com




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