OneTaste is seeking the return of its stolen documents, but the government refuses to turn them over.
And it may lead to trouble – for the prosecutors.
OneTaste Inc. attorney Paul Pelletier filed a “Motion for Return of Confidential Private Property and For Sanctions” against prosecutors at the US Attorney’s Office in Brooklyn.
Pelletier, a former prosecutor himself, was for more than 25 years, the senior-most financial fraud prosecutor at the Department of Justice. He believes the sanctions could include criminal charges against bad actors in the Brooklyn US Attorney’s Office and the FBI.
OneTaste’s lawyer Paul Pelletier oversaw the entire DOJ’s enforcement efforts in Corporate Fraud, Health Care Fraud and violations of the Foreign Corrupt Practices Act.
Pelletier wants US Magistrate Judge Robert M. Levy to order Brooklyn federal prosecutors to return documents stolen from OneTaste by its former IT contractor and seeks sanctions, including possibly criminal charges against the prosecution team.
EDNY Prosecutors Deny Review, Yet Hold Onto Stolen Documents
EDNY prosecutors admit they received the stolen documents but claim they don’t intend to use them and never looked at them during the three years they possessed them.
The EDNY charged OneTaste founder Nicole Daedone and former company executive Rachel Cherwitz with forced labor conspiracy in a one-count indictment in 2023. US District Judge Diane Gujarati has scheduled the trial for January.
The government says they won’t return the original documents stolen by former OneTaste IT contractor Mitch Aidelbaum but has shared scanned images of cell phone photos of the hacked documents, devoid of metadata, with the defendants Daedone and Cherwitz.
Complicating the issue is that the stolen documents have an “attorney-client privilege” marking on virtually every page.
The government has only provided photos of the stolen documents. They are clearly marked attorney-client privileged, making the prosecutors’ argument they didn’t know it might be privileged suspicious.
Justice Department Ignored Filter Team Protocol, Says Pelletier
If documents are potentially protected as attorney-client privilege, the US Department of Justice internal policies and procedures require prosecutors to turn them over immediately to a “filter team” upon taking possession and before reviewing them.
A filter team, also known as a “taint team,” is typically composed of DOJ attorneys who are not involved in the investigation or prosecution of the case. Their role is to review seized materials and separate any privileged information before the investigative team can access the non-privileged materials to prevent the courts from disqualifying prosecutors or dismissing their cases on constitutional grounds.
This due process right of attorney-client privilege has been expressed in the 5th Circuit and quoted in this case: “Although the privilege may at times prevent the government from obtaining useful information, ‘this is the price we pay for a system that encourages individuals to seek legal advice and to make full disclosure to the attorney so that the attorney can render informed advice.'”
Prosecutors Claim Ignorance, OneTaste Suspects Deception
From a practical standpoint, a Justice Department filter team exists not to protect defendants’ due process rights but to prevent a judge from dismissing its case through prosecutors inadvertently (or deliberately) examining privileged evidence.
In their 2023 indictment, prosecutors in the EDNY allege Daedone and Cherwitz conspired from 2006-2018 to force OneTaste “members” to labor. Despite the alleged dozen-year conspiracy, prosecutors did not charge the women with forced labor, making it the first standalone conspiracy to commit forced labor in American legal history.
Defendants Rachel Cherwitz and Nicole Daedone stand charged with forced labor conspiracy, but not forced labor.
The Role of Witness #1 and Individual #13 in the Stolen Documents Saga
Mitch Aidelbaum told the FBI he hacked his former employer’s laptop and stole documents. Did he give the documents to the FBI?
The evidence shows that prosecutors obtained the stolen documents in 2021. Still, it is unclear who gave them the documents first—the man who admittedly stole them or one of two individuals named in the government filings as Witness #1 and Individual #13.
Based on the filings, Witness #1 is a former OneTaste student, Andrew Cortado, who gave photographs of the stolen documents to another former student, Kara Cooper (Individual #13), who gave the pictures of the stolen documents to FBI Special Agent Elliot McGinnis.
Andrew Cortado said he gave photos of the stolen documents to Kara Cooper.
Kara Cooper gave photos of the stolen documents to the FBI, which may have been an FBI ruse to disguise the fact that they had already obtained the original documents from the man who stole them, Mitch Aidelbaum.
The prosecution said in court filings that Cortado identified IT contractor Mitch Aidelbaum as a “possible source of the [privileged marked] document in [Cooper’s] possession.”
There may be more to the story.
AUSA Gillian Kassner is the lead prosecutor in the OneTaste case.
Allegations of Misconduct:
Did the FBI Solicit Stolen Documents?
The prosecutors claim they “did not obtain any of the [privileged] materials through a search warrant'” and “did not knowingly seek privileged materials.”
Instead, they claim Cooper, a disgruntled former OneTaste student suing the company in a separate civil suit, “voluntarily” gave the photographs to the FBI.
Former prosecutor Pelletier suggests the prosecution’s story about Cooper might be a ruse to conceal the fact that an FBI agent solicited and obtained stolen, privileged documents from the man who stole them—Aidelbaum. When Cooper “voluntarily” offered the stolen documents, the FBI may have already possessed them, which suggests prosecutors may have deceived the court with their “wordsmithing.”
Pelletier: FBI Knew the Documents Were Stolen, Kept Them Anyway
Pelletier says, “Aidelbaum informed the Prosecution Team in late January of 2021 that he had unlawfully removed it from the laptop of a OneTaste executive and provided a copy to the Prosecution Team. The Prosecution Team’s efforts to distance themselves from knowing the criminal source of the privileged materials speaks volumes in this regard.”
The argument that this is all harmless error is open to debate.
Prosecutors Insist No Harm, Pelletier Says ‘Malfeasance’
The prosecution said they “have not reviewed, and do not intend to review those materials for use in [the trial of] Cherwitz.”
The defendants claim that “the vast majority of the indictment” came from the stolen privileged documents.
Pelletier said the prosecution not only refuses to turn over the original stolen documents but will not even turn over the JPEG images of the photos of the stolen documents, provided by Cooper “because the meta-data may expose further evidence of their ‘malfeasance.'”
Pelletier cites potential criminal conduct by prosecutors.
A Federal Crime? Failure to Report Stolen Documents to the Court
“Title 18 USC §4 makes it a federal crime to, with knowledge of the commission of a federal felony, fail to report it to a court,” Pelletier wrote.
“Certainly, if the Prosecution Team knew that the Privileged Marked Document was retrieved in violation of US computer crimes laws and… that there is no legal or evidentiary basis for the government to solicit or receive attorney client/work product privileged material, maybe the Prosecution Team can explain why such conduct would not amount to a separate criminal act sanctionable herein?”
Prosecutors’ Failure to Use Filter Team: A Strategic Move?
In their court filings, the prosecution has not addressed why they did not use a Filter Team or seek the Court’s permission to review the material.
“Perhaps it’s because a truthful answer to that question would have dramatic consequences beyond the relief sought in this petition,” Pelletier said in his filing.
OneTaste seeks a hearing on the matter. Magistrate Judge Levy has yet to issue a ruling.
In addition to OneTaste’s legal representative Pelletier, the defendant Daedone is represented by Jennifer Bonjean and Cherwitz is represented by Arthur Aidala, both prominent defense attorneys in the greater NYC area, who have handled high profile, nationally reported cases, almost guaranteeing the matter of will be fully reported.
This is a breaking story and more news is expected soon.
Magistrate Judge Robert Levy will be asked to make the hard decision to call for a hearing on serious misconduct allegations against the prosecution. The double standard that prosecutors can act above the law may not apply in this case based on its high profile status and the attorney making the allegations.
