Democratic National Committee v. The Russian Federation et al

Filing 205

MOTION to Dismiss Memorandum of Points and Authorities to support Motion to Dismiss. Document filed by Roger J. Stone, Jr. (Attachments: #1 Exhibit Guccifer 2.0 thanks, #2 Exhibit Podesta's time in the barrel, #3 Exhibit Stone Timeline)(Buschel, Robert)

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 1 of 23

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DEMOCRATIC NATIONAL COMMITTEE
Plaintiff,
v.

Case No. 1:18-cv-03501-JGK

THE RUSSIAN FEDERATION, et. al.,
Defendants.
___________________________________________/

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT ROGER STONE’S MOTION TO DISMISS
AMENDED COMPLAINT

Grant J. Smith
(admitted pro hac vice)
StrategySmith, P.A.
401 East Las Olas Boulevard
Suite 130-120
Fort Lauderdale, FL 33301
[phone]
[e-mail]

Robert C. Buschel
Counsel of Record
(admitted pro hac vice)
BUSCHEL GIBBONS , P.A.
ONE FINANCIAL PLAZA – SUITE 1300
100 S.E. THIRD AVENUE
FORT LAUDERDALE, FL 33394
[phone]
[e-mail]

Counsel for Roger Stone

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 2 of 23

TABLE OF CONTENTS

INTRODUCTION ……………………………………………………………………….1
ALLEGATIONS ……………………………………………………………………...…3
ARGUMENT ……………………………………………………………………………9
I.

THE COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION
BECAUSE PLAINTIFF LACKS ARTICLE III STANDING ……………..9

II.

PLAINTIFFS FAIL TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED …………………………………………… 12
A. Standard of Review ………………………………………………………. 12
B. The allegations are vague and do not support a complete and plausible set
of facts ……………………………………………………………………. 13
1. Conspiracy between Stone and the Campaign …………………………… 14
2. Conspiracy between Stone and Russian agents ………………………….. 15
3. Conspiracy between Stone and WikiLeaks ……………………………… 15

III.

PLAINTIFF FAILS TO ALLEGE A CLAIM UNDER RICO
AGAINST STONE ………………………………………………………. 16
A. Roger Stone did not participate in management of enterprise affairs ……. 16
B. Roger Stone did not commit a predicate act ………………………………17

CONCLUSION ………………………………………………………………………. 18
CERTIFICATE OF SERVICE ………………………………………………………. 19

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 3 of 23

TABLE OF CITATIONS
Cases
All. For Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82 (2d Cir. 2006).................. 9
Ashcroft v. Iqbal, 556 U.S. 662 (2009). ................................................................................. 12, 13
*Bartnicki v. Vopper, 532 U.S. 514 (2001). ........................................................................... 11, 16
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................ 12, 14
Central Bank of Denver v. First Interstate Bank, 511 U.S. 164 (1994)). ..................................... 18
Cockrum v. Donald J. Trump for President, Inc., 319 F. Supp.3d 158 (D.D.C. 2018) ................ 10
*D'Addario v. D'Addario, 901 F.3d 80, 103 (2d Cir. 2018) ......................................................... 17
DeFalco v. Bernas, 244 F.3d 286, 330 (2d Cir. 2001) ................................................................. 18
Dickerson v. Alachua County Comm., 200 F.3d 761 (11th Cir. 2000) ......................................... 14
Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724 (D.C. 2000) ................... 14
First Capital Asset Mgmt. v. Satinwood, Inc., 385 F.3d 159 (2d Cir. 2004) ................................ 17
Franklin v. Curry, 738 F.3d 1246 (11th Cir. 2013) ...................................................................... 15
Frydman v. Verschleiser, 172 F. Supp. 3d 653 (S.D.N.Y. 2016) ................................................. 12
Gross v. Waywell, 628 F. Supp. 2d 475, 479-80 (S.D.N.Y. 2009) ............................................... 16
Hecht v. Commerce Clearing House, Inc., 897 F.2d 21 (2d Cir. 1990) ....................................... 18
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ............................................................................. 9
In re: Ins. Brokerage, 618 F.3d 300 (3d Cir. 2010) ..................................................................... 16
Jacobson v. Deutsche Bank, A.G., 206 F. Supp. 2d 590 (S.D.N.Y. 2002) ................................... 14
Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014). ........................................................... 15
Little Professor Book Co. v. Reston N. Pt. Vill., 41 Va. Cir. 73 (1996)........................................ 14

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 4 of 23

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................................... 9
Reich v. Lopez, 38 F. Supp. 3d 436, 464 (S.D.N.Y. 2014) .......................................................... 14
Reves v. Ernst & Young, 507 U.S. 170 (1993).............................................................................. 16
Tabb v. D.C., 477 F. Supp. 2d 185 (D.D.C. 2007) ....................................................................... 14
Statutes
Communications Decency Act of 1996, 47 U.S.C. §230 ............................................................. 15
Other Authorities
GET
ME
ROGER
STONE,
a
NETFLIX
Original
Documentary,
(2017).
https://media.netflix.com/en/only-on-netflix/128318 ................................................................. 1

U.S. Const. art. 3, § 2. ..................................................................................................................... 9
Rules
Federal Rule of Civil Procedure 12(b)(6) ............................................................................... 12, 18

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 5 of 23

INTRODUCTION
Plaintiff, the Democratic National Committee (“DNC”) alleges Russians, working on
behalf of their government as part of a military operation, hacked the Democratic National
Committee’s emails and other data, transferred it to WikiLeaks, which then disclosed it to the
world via the internet. The data was disclosed to the world without redaction and the DNC
claims it suffered damage (mostly political) to their trade secret strategies. Roger Stone is not
alleged to have hacked, transferred, or touched the emails or other data the DNC claims were
disseminated. Roger Stone is not alleged to have spoken to any Russians or hackers about the
alleged theft of DNC data or its transfer to WikiLeaks. The DNC concludes that Stone conspired
with the Trump Campaign, Russian hackers, and WikiLeaks -- for the publication of those emails.
Stone, however, is a journalist, political strategist, pundit, and commentator. Like or dislike him
for whom he campaigns or his political advocacy; that is a personal choice. Stone is an “agent
provocateur.” 1 He is the First Amendment running, not walking; but his conduct cannot be
adjudged a civil wrong.
Nevertheless, Plaintiff has filed what is predominately a civil RICO lawsuit with a
tagalong conspiracy, and supplemental D.C. statutory and Virginia common law claims relating
only to the theft and dissemination of DNC emails with people and entities Roger Stone does not
know or barely knows. The DNC can only seek remedies for torts relating to its own data. As a
matter of law this proposition is critical to the analysis of Roger Stone’s alleged culpability.

1

GET ME ROGER STONE, a NETFLIX Original Documentary, (2017). https://media.netflix.com/en/only-on-

netflix/128318

1

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 6 of 23

Assuming the DNC’s best position, the DNC seeks to prosecute Roger Stone for the wrong
conspiracy for the simple reason: John Podesta’s emails (which Stone allegedly had early notice
of their release, which Stone denies), did not reside on the DNC’s servers in Virginia or the
District of Columbia. Because, as the DNC focuses its case against Stone on “the Podesta’s”
allegedly stolen emails did not reside on the DNC’s servers and John Podesta is not a plaintiff in
this case, the DNC has improperly attempted to link Roger Stone to a conspiracy Stone did not
join.
This case is meritless and filed for sensational and politically partisan reasons. The hope
is this Court will authorize a private investigation through civil discovery, into the President of
the United States and as a consequence, Roger Stone; an adviser and friend to President Donald
Trump. In essence, litigate the 2016 presidential campaign. Proof of this lies with a lawsuit that
does not allege Roger Stone conspired to damage the DNC; rather allegations that are only
inferences of another conspiracy against John Podesta. Because the DNC alleged Stone injured
John Podesta, therefore, he must be a part of a conspiracy against the DNC does not follow and
is not a sufficiently plausible conclusion.
As a general proposition, the DNC cannot successfully sue Roger Stone because it thinks
he may have been involved in a larger, yet different, conspiracy in a purported effort to tilt the
election against the Democratic Candidate for President, in favor of Donald Trump. Although
allegations may be fodder for media speculation, in the Courts there must be a wall against a
lawsuit that without doubt is implausible and near impossible to prove. At the outset, and at a
minimum, the DNC must establish standing and a legitimate claim for relief. Here there is
neither. This case should be dismissed.

2

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 7 of 23

ALLEGATIONS
Roger Stone is a defendant in the RICO (count I), RICO conspiracy (count II), violation
of Uniform Trade Secrets Act, a statute in D.C. (count VIII), conspiracy to trespass chattels, a
Virginia common law claim (count XI), and violation of Virginia Computer Crimes (count XII).
The specific facts alleged as to Roger Stone make him a unique defendant. While analyzing these
allegations, it is critical for the Court to note when Stone is alleged, by Plaintiff to have joined
the conspiracy (post-July 22, 2016, first DNC dissemination), what acts he allegedly committed
to in fact join the conspiracy, and do those acts allege a conspiracy to which the DNC can seek a
remedy in this Court. As to Roger Stone, the amended complaint alleges:
19.
Throughout the summer and fall of 2016, during the height
of the Presidential campaign, Trump’s associates continued to
communicate secretly with Russian agents and WikiLeaks, who
strategically disseminated information stolen from Democratic
targets. For example, in August 2016, Stone began communicating
secretly with GRU operatives and bragged about his contacts with
Assange. Similarly, Gates, who served as the Trump Campaign’s
deputy chairman and then liaison to the Republican National
Committee, maintained secret communications with an individual
he knew to be connected to the GRU.
(emphasis added).
Other than the private messages (communication on the social network platform, twitter),
between Guccifer 2.0 and Stone there are no additional allegations about what they
communicated about. The communications are attached as exhibits to this motion.
20.
In the summer and fall of 2016, Stone revealed
information that he could not have had unless he were
communicating with WikiLeaks, Russian operatives, or both about
their hacking operations in the United States. For instance, in
August of 2016, nobody in the public sphere knew that Russia had
stolen emails from John Podesta, the chairman of Secretary Hillary
Clinton’s presidential campaign. Nevertheless, on August 21,
2016, Stone predicted that damaging information about Podesta
would be released, tweeting “it will soon [be] the Podesta’s time in
the barrel.” Weeks later, WikiLeaks began releasing batches of
3

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 8 of 23

Podesta’s emails on a near-daily basis until Election Day—as
Stone had predicted. Similarly, in mid-September 2016, Stone said
that he expected “Julian Assange and the WikiLeaks people to
drop a payload of new documents on Hillary [Clinton] on a weekly
basis fairly soon.” And, beginning on October 7, 2016, WikiLeaks
began releasing stolen emails at least once a week—as Stone had
predicted.
(emphasis added).
WikiLeaks merely telling Stone that it has specific information is not a tort. Additionally,
since the DNC alleged that Stone's prediction about “the Podesta’s” proves Stone joined the
relevant conspiracy is belied by the fact John Podesta's emails were not on the DNC server. The
DNC cannot properly allege Stone joined the conspiracy and committed torts based upon this
allegation in which the DNC cannot claim a concrete injury fairly traceable to Stone. An analysis
of the DNC’s standing and misuse of inferences to attempt to sufficiently plead this conspiracy
will be discussed below.
49.
Defendant Stone is Trump’s long-time confidant. “[F]ew
people go as far back [as] Trump [and] Stone,” and Stone has
“nurtured the dream of a [Trump] presidential run . . . for 30
years.” Stone also has a long history with Manafort: Manafort
helped run Stone’s campaign for national chairman of the Young
Republicans in 1977, and the two co-founded a consulting firm—
Black, Manafort, Stone, and Kelly—in the 1980s. In 2007, Stone
worked on the parliamentary campaign of a Ukrainian candidate
who formed a coalition with pro-Russian politician Viktor
Yanukovych, whose closest political advisor was Manafort. Upon
information and belief, Stone served as an informal adviser to
Trump and remained in contact with him and other senior officials
in the Trump Campaign throughout the 2016 election. Stone
resides in Florida.
(emphasis added).
This allegation claims that Defendants Manafort and Stone worked together in 1977, the
1980s, and over ten years ago Stone worked against Manafort’s candidate during a Ukrainian
election. The above allegation alone or in conjunction with the other allegations fails to create a
4

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 9 of 23

plausible explanation that Roger Stone joined a conspiracy with Paul Manafort to steal and
disseminate the DNC’s emails.
119. In mid-September 2016, Stone accurately predicted on Boston
Herald Radio that he expected "Julian Assange and the WikiLeaks
people to drop a payload of new documents on Hillary on a weekly
basis fairly soon."
121. On October 2, 2016, Stone stated on Twitter: "Wednesday
@HillaryClinton is done. #WikiLeaks." And on October 3, 2016,
Stone reiterated that he was confident WikiLeaks would continue
disseminating hacked materials: "I have total confidence that
@WikiLeaks and my hero Julian Assange will educate the
American people soon."
122. Four days later, on October 7, 2016-and just one hour after
the release of the infamous Hollywood Access recording in which
Trump admitted to sexually assaulting women- WikiLeaks
released 2,000 emails stolen from Podesta. WikiLeaks continued to
release documents stolen from Podesta on a near-daily basis until
November 9, 2017 (sic) - just as Stone had predicted.
(emphasis added).
Four days later was not a Wednesday, so this tweet was not as predictive as alleged. (See
Am. Compl. ¶ 121). Again, the stolen Podesta emails were not on the DNC’s servers, so the
DNC has no standing to prosecute the theft of Podesta’s emails. Lastly, claiming Stone predicted
this is permitting speculation to be science -- assigning the meaning of causation to a correlation
without a plausible explanation of how this was done.
157. Beginning in the spring of 2016, Trump’s longtime friend
and political advisor Roger Stone revealed on multiple occasions
that he was in contact with Assange and WikiLeaks as well as
Guccifer 2.0 about information in their possession that would be
damaging to the Clinton campaign, to prominent members of the
Democratic Party, and to Clinton campaign chairman John
Podesta. Many of these reports from Stone occurred well before it
was publicly known that the DNC’s computer systems and
Podesta’s emails had been hacked by the same Russian intelligence
entities.

5

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 10 of 23

Outside of stating the obvious, the allegations in this paragraph are as obtuse as an
astrological forecast. More importantly, this allegation is confirmation Podesta’s emails were
separate from the DNC’s computer systems. Other allegations do no better.

158. On August 8, 2016, speaking to a local Republican Party
group in Florida, Stone predicted the future disclosure of hacked
materials: “I have actually communicated with Assange. I believe
the next tranche of his documents pertain to the Clinton
Foundation, but there’s no telling what the October surprise may
be.”
(emphasis added).
This prediction was also hardly prophetic since WikiLeaks disclosed the first tranche of
DNC emails on July 22, 2016 and since it did not disclose all the data it possessed – there were
going to be other disclosures by WikiLeaks. (See Am. Compl. ¶¶ 142-145) (“Assange appeared
on British television”). There was no telling what the October surprise might be (although every
presidential campaign angles for one), and the DNC did not follow up and allege that the next
tranche was about the Clinton Foundation – because the next dump was not about the Clinton
Foundation.
159. On August 12, 2016, Stone said that he believed Assange
had emails belonging to Secretary Clinton. That same day, GRU
officers posing as Guccifer 2.0 disseminated another set of stolen
documents – this time containing personal information about
Democratic candidates. Shortly thereafter, on August 12, Guccifer
2.0 sent a thank-you note to Stone.
(emphasis added).
The above allegation is not about DNC emails. In the original complaint, the DNC posted
the actual message, yet removed it in the amended complaint. The post from "Guccifer 2.0" to
Stone read: "Thanks that u believe in the real #Guccifer2," demonstrates that post by the alleged
hacker(s) was innocuous (in its context) and did not create an agreement by Stone to enter any
supposed conspiracy. (See Exhibit, -1).
6

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 11 of 23

161. On August 14, 2016, Stone began secretly communicating
with Guccifer 2.0. On August 17, 2016, one of these operatives
tweeted to Stone, "please tell me if i can help u anyhow. it would
be a great pleasure to me."
(emphasis added).
The date of the first allegation of Stone’s communications with Guccifer 2.0 is after the
first dissemination of DNC documents cited as July 22, 2016. (See Am. Compl. ¶ 18). The DNC
did not allege Stone asked for help from Guccifer 2.0 or that he had knowledge Guccifer 2.0 was
Russian military intelligence.
164. On August 21, 2016, amidst his communications with
Assange and Russian intelligence, Stone prophesized the future
dissemination of Podesta's emails, tweeting: "Trust me, it will soon
[be] (sic) Podesta's time in the barrel." There had been no public
disclosure that Podesta's emails had been hacked at that time.
(emphasis added).
The tweet was materially misquoted by Plaintiff. It should read: “Trust me, it will soon
the Posdesta’s time in the barrel.” (See ECF No. 182, Am. Compl. ¶ 20 and Exhibit -2). “The
Podesta’s,” demonstrates the plausible explanation Roger Stone has given that he was referring
to the Podesta brothers who had business dealings with the Russian energy company, Gazprom.
The Court should also note, the DNC recognizes Podesta's emails had been "hacked," separate
from the DNC's database. Short of three weeks later, the Podesta emails were allegedly
disseminated by WikiLeaks. (Am. Compl. ¶167). John Podesta is not a plaintiff in this case. The
DNC does not have standing to sue Stone based upon a claim that Podesta's data was hacked and
disseminated.
To borrow from the title of episode 2 of season 1 from the popular television series: The
West Wing, the DNC is guilty of violating the philosophical rule – Post hoc, ergo propter hoc
(after this, therefore because of this). The DNC is correlating events in the 2016 presidential
campaign with Roger Stone’s online political advocacy, and claiming Stone’s actions were
7

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 12 of 23

because of the other. The “other” being communications with the Russians or WikiLeaks. This
cannot be considered plausible allegations to support any cause of action against Roger Stone.
171. On September 9, 2016, GRU operatives posing as Guccifer
2.0 contacted Stone to ask him for his reaction to the “turnout
model for the Democrats’ entire presidential campaign.” Stone
replied, “pretty standard.”
(emphasis added)
This communication does not support a conspiracy. This communication was after the
theft and dissemination of the first tranche of DNC emails by WikiLeaks. This is a standard
remark that would have been an answer to anyone that asked him. The amended complaint does
not allege what the turnout model entails, nor that it is a trade secret that was stolen off the DNC
server. Assuming Guccifer 2.0 is a group of Russian intelligence officers, it was a question about
an internet hyperlink to documents posted on a website from a United States political consultant
that was in the public domain. (Exhibit, -3).
The Court should keep in mind: Roger Stone was not alleged to have been part of the
meeting in Trump Tower in June, 2016 as described in paragraph 13, and referenced as the
turning point in this conspiracy throughout the amended complaint. Furthermore, the allegations
attempt to support multiple causes of action against Stone. But, even if the Court were to assume
Stone had previous knowledge of the subject matter of WikiLeaks disclosures, the DNC merely
alleges Stone had previous knowledge of future publication of truthful disclosures. They do not
allege Stone advised the Russian Federation or the GRU on how to hack (break into the DNC
servers), steal the data from the servers, or who to give that data to once it was taken. The DNC
does not allege Stone advised WikiLeaks on an effective method of dissemination of anyone’s
data – let alone the DNC’s. At best, the DNC claims Stone received information about what was
going to be disseminated and disclosed to the world via social media, as if he were a journalist.
8

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 13 of 23

The journalism community refers to that as a “scoop,” not a tort. Even if status matters, which it
does not, as a political advocate for Donald Trump, Stone campaigned that information would be
revealed to the world that will affect Hillary Clinton’s campaign. None of this is a tort. It is
protected free speech.

Defendant Roger Stone (“Stone”) respectfully moves that this Court dismiss the D.C.-law
and Virginia-law claims under Federal Rules of Civil Procedure12(b)(1); and, dismiss all claims
for failure to state a claim upon which relief can be granted under Federal Rules of Civil
Procedure12(b)(6).
Defendant Roger Stone, pursuant to this Court’s Order (ECF No. 181 at 2), adopts the
argument made in the global motion to dismiss, as well as other Defendants’ supplemental briefs,
so applicable.
ARGUMENT
I.

THE COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION BECAUSE
PLAINTIFF LACKS ARTICLE III STANDING.
Plaintiff in large part complains about the hacking, theft, transfer, and dissemination of

two of its databases (one in Virginia, the other in the District of Columbia), through WikiLeaks.
(Am. Compl. ¶¶ 81-84, 172). But some of its allegations, mostly about Roger Stone’s
involvement, relate to a completely different set of data – the Democratic

(“DCCC”) and

Hillary’s Clinton’s campaign, and the source of her campaign manager John Podesta’s emails.
To the extent that Plaintiff intends to remediate the rights of other people and organizations, the
below argument applies. The DNC does not have standing to object to a hack, theft, and transfer
of data that does not belong to the DNC.

9

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 14 of 23

Article III standing concerns subject matter jurisdiction. All. For Envtl. Renewal, Inc. v.
Pyramid Crossgates Co., 436 F.3d 82, 85 (2d Cir. 2006). The party invoking federal jurisdiction
bears the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). Plaintiff cannot sustain this action because they allege no cognizable injury that can be
fairly traced to Roger Stone’s alleged actions, and thus fail to clear a fundamental constitutional
threshold necessary to pursue their claims in federal court. Article III of the Constitution limits
the jurisdiction of federal courts to actual “cases and controversies.” U.S. Const. art. 3, § 2.
Central to that requirement is that a litigant has “standing.” This requires more than a “keen
interest in the issue.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013). To avoid dismissal,
the plaintiff bears the burden of demonstrating (1) he has suffered “a concrete and particularized”
injury, (2) that is “fairly … trace[able] to the challenged action of the defendant, and not … th[e]
result [of] the independent action of some third party [who is] not before the court,” and (3)
“likely … will be redressed by a favorable [judicial] decision.” Lujan, 504 U.S. at 560-61
(internal quotation marks and citation omitted). Stone challenges that his actions are fairly
traceable to the DNC’s alleged injury. The above analysis of the allegations made by the DNC
demonstrates Stone is only accused of a conspiracy relating to John Podesta’s emails. He is not
part of the RICO conspiracy to injure the DNC, steal its “trade secrets,” or trespass on the DNC’s
computers.
The DNC is not the first plaintiff to try and link Stone to the alleged DNC hacking
conspiracy. In the case where Stone and the Trump Campaign were sued in the District of
Columbia, the District Court found: "Plaintiffs do not seek to impose liability on defendants for
the publication of emails from the DCCC or John Podesta, Chairman of Hillary Clinton's 2016
presidential campaign.” Cockrum v. Donald J. Trump for President, Inc., 319 F. Supp.3d 158,
10

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 15 of 23

166 (D.D.C. 2018). This is because those plaintiffs’ emails were on the DNC servers and their
conspiracy claim was limited to only their alleged damages. The key point being Podesta's
emails and the DNC lie on separate computer databases. The DNC seems to recognize that the
conspiracy alleged is limited to a “conspiracy to disseminate stolen DNC data.” (Am. Compl., VI.
at 21; see also I. at 33). An allegation that Stone joined the conspiracy to hack, steal, and
disseminate Podesta's emails, is not a conspiracy to hack, steal, or disseminate the DNC's emails.
The DNC therefore cannot sue Stone for conspiracy because it lacks standing and cannot allege
that Stone was part of the DNC's conspiracy alleged in the complaint.
It is clear from the complaint that the DNC emails were going to be published. Perhaps
the Court is meant to infer Roger Stone was consulted without ever reviewing the thousands of
emails and gave strategic advice on how to disseminate the tranches of emails that included
Plaintiff’s data. It is implausible; however, that Stone could offer meaningful strategic advice on
dissemination without viewing the emails. The complaint fails to allege sufficient conduct fairly
traceable with the alleged effect because it is contingent on a chain of attenuated hypothetical
events and actions by third parties independent of Roger Stone.
In this case, it appears the DNC merely alleges Roger Stone knew about future
disseminations prior to them, but not prior to the hack, theft, or transfer to WikiLeaks. If the
DNC's lawsuit is based upon Stone receiving early notice of DNC emails directly from
WikiLeaks, then this is not a tort. See Bartnicki v. Vopper, 532 U.S. 514 (2001). Stone is not
alleged to have seen the DNC emails or given advice on their publication by WikiLeaks. Even
having notice that the Russian military was planning on stealing the emails and giving them to
WikiLeaks for dissemination, as long as Stone did not help them steal and distribute them, it is
not a crime or a tort. Stone commenting on what was to come is a teaser that any news media has
11

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 16 of 23

done and continues to do today. But once WikiLeaks had the DNC’s data, Roger Stone as a
political pundit, strategist, adviser, or journalist could seek to review it or publicly tease about its
future disclosure. This also is not a crime or a tort.
Most importantly, Stone did not do anything that made Russian hackers hack, or
WikiLeaks disseminate the DNC’s data. Because the DNC only alleges tenuous events that
occur at or near the time they felt they were injured, does not create a sufficient fairly traceable
connection between Stone’s acts and the injuries suffered. Thus, the Plaintiff does not have
standing to pursue this lawsuit against Stone.
II. PLAINTIFFS FAIL TO STATE A CLAIM UPON WHICH RELIEF CAN BE
GRANTED
A. Standard of Review
Pursuant to Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), to survive a motion to
dismiss, a complaint must now contain factual allegations which are “enough to raise a right to
relief above the speculative level . . . on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Id. at 555. “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations . . . a plaintiff’s obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. In all, determining
whether a complaint states a plausible claim for relief will “be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v.
Iqbal, 556 U.S. 662 (2009). Second, the court must determine whether the well-pled factual
allegations, if assumed to be true, “plausibly give rise to an entitlement to relief.” Id.. at 662.
When the factual allegations are “not only compatible with, but indeed [are] more likely
explained by” lawful activity, the complaint must be dismissed. Id. at 663.
12

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 17 of 23

A complaint must be dismissed if it consists only of “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.” Id. at 678. The plausibility
standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Thus,
“[f]actual allegations must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,
550 U.S. at 555. Following Iqbal, this District Court has applied the Iqbal standard strictly in
cases ranging from racketeering, theft of trade secrets, to the Computer Fraud and Abuse Act.
Frydman v. Verschleiser, 172 F. Supp. 3d 653, 659 (S.D.N.Y. 2016) (Koeltl, J.,).
Applying the Iqbal standard in this case, it is abundantly clear that Plaintiff’s allegations
of conspiracy fall short in crossing the line from “conceivable” to the “plausible” as they allege
fantastic claims that are conclusory and unlikely. See Iqbal, 556 U.S. at 680. As discussed below,
the allegations are implausible because they do not clearly identify how Stone encouraged
delivery of the data to WikiLeaks and coach its dissemination. Plaintiff fails to allege any facts
that could plausibly support a viable claim, relying instead on broad and conclusory allegations,
largely gleaned from various publications.
B. The allegations are vague and do not support a complete and plausible set of facts.
The case of Iqbal is instructive on delineating sufficient allegations from insufficient
conclusory allegations. The failure of Iqbal’s pleading is that he pled as fact allegations that were
“merely consistent with” a defendant's liability, it “stop[ped] short of the line between possibility
and plausibility of ‘entitlement to relief.’” Id. at 557. Like Plaintiff’s complaint, the essential
allegations are presented merely consistent with liability and are so outrageous and unexplained
that it comes nowhere near line of possibility and plausibility. See id. Plausibility of the
complaint is a “context-specific task” that requires the court to draw on its “judicial experience”
13

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 18 of 23

and “common sense.” Id. at 679. This complaint fails because it only alleges an implicit
conspiracy insufficient to make Roger Stone a coconspirator. The allegations merely imply that
Stone must have known about Podesta’s hack based upon one “tweet,” and so he must have
known about the theft of DNC data. But the amended complaint does not state a plausible factual
basis that Stone joined the conspiracy to steal and disseminate the DNC emails.
Looking at this complaint within only its four corners should lead this Court to conclude
in its experience that Plaintiff’s complaint is too vague to survive a motion to dismiss.
Referenced intelligence and news reports from various media are inadmissible hearsay when
used in motions for summary judgment. See Jacobson v. Deutsche Bank, A.G., 206 F. Supp. 2d
590, 593 (S.D.N.Y. 2002), aff'd, 59 Fed. Appx. 430 (2d Cir. 2003). It offers little more at the
motion to dismiss stage.
Without that level of specificity, Plaintiffs will never be able to show they are entitled to
relief. Without more specificity, Plaintiffs complaint fails to “nudge” their claim “across the line
from conceivable to plausible.” See id. at 683 (citing Twombly, 550 U.S. at 570). Plaintiffs fail to
state a claim for any conspiracy.
1.

Conspiracy between Stone and the Campaign.

Plaintiffs do not state a proper theory of conspiracy to support any claim. An agent of a
corporation cannot conspire with the corporation itself. Executive Sandwich Shoppe, Inc. v. Carr
Realty Corp., 749 A.2d 724, 739 (D.C. 2000) (referred to as the “intracorporate conspiracy
doctrine”); Little Professor Book Co. v. Reston N. Pt. Vill., 41 Va. Cir. 73 (1996) (circuit court
opinion); Reich v. Lopez, 38 F. Supp. 3d 436, 464 (S.D.N.Y. 2014), aff'd, 858 F.3d 55 (2d Cir.
2017); Tabb v. D.C., 477 F. Supp. 2d 185, 190 (D.D.C. 2007) (citing Dickerson v. Alachua
County Comm., 200 F.3d 761, 767 (11th Cir. 2000)). Stone worked as an independent contractor
14

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 19 of 23

for the Campaign for a few months in 2015. In short, the amended complaint alleges Stone was
always acting as an agent of the Trump Campaign for President. In the only footnote in the
amended complaint, the term “Trump Associate” is defined as an agent of the Campaign. (Am.
Compl. at 16 *).

The D.C.-law and Virginia law, therefore, does not support a claim of

conspiracy between Stone and the Campaign.
2.

Conspiracy between Stone and Russian agents.

In its causes of actions, Plaintiff lumps “Defendants” together as if there were sufficient
specific allegations above. It does not allege that Roger Stone knew Guccifer 2.0 was Russian
government. Because there is a dearth of allegations to establish Stone was part of any illegal
acts, the allegations in the causes of action are conclusory and therefore insufficient. See
Franklin v. Curry, 738 F.3d 1246, 1250-51 (11th Cir. 2013) (district court should identify and
remove conclusory allegations not entitled to the assumption of truth).
3.

Conspiracy between Stone and WikiLeaks.

WikiLeaks did not commit a tort; therefore Roger Stone could not have vicarious liability
for conspiring to participate in actions that do not amount to a tort. The Communications
Decency Act of 1996, 47 U.S.C. §230, shields interactive computer services from liability from
those who post on its site. Stone is not alleged to have taken the Plaintiffs’ data from the DNC
or transferred it to WikiLeaks. Mere encouragement of publication of Plaintiffs’ data on
WikiLeaks is not a tort and Stone cannot be held liable. See Klayman v. Zuckerberg, 753 F.3d
1354, 1358 (D.C. Cir. 2014). This protection from liability exists even if WikiLeaks fails to edit
the posts coming from third party users. See id. Since WikiLeaks could not be held liable for its
act of dissemination, then Stone cannot be held liable even if he were to have encouraged or
reveled in the dissemination or predicted more disclosure was forthcoming.
15

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 20 of 23

Because Stone did not participate in the hack, theft, or dissemination of the DNC’s data,
Stone’s public social media posts alleged in the complaint are therefore nothing more than
political speech. ‘the Podesta’s time in the barrel,’ ‘WikiLeaks will drop a payload of new
documents soon,’ ‘Wednesday Hillary Clinton is done,’ ‘Assange is my hero and will educate
the American people;’ and the like, is what political operatives do during a campaign. They
proclaim their candidate is great, the opposition candidate is bad. In the context of a campaign,
none of this demonstrates that Stone participated in the strategic dissemination of Plaintiff's
emails. Stone played no part in the “illegal interception;” access to the data was “obtained
lawfully,” and the subject matter was “a matter of public concern.” See Bartnicki v. Vopper, 532
U.S. 514 (2001).
III.

PLAINTIFF FAILS TO ALLEGE A CLAIM UNDER RICO AGAINST STONE.
Civil RICO claims are difficult to sustain. The “formidable intricacies and pitfalls”

inherent in these requirements have sent many a “crew of spellbound plaintiffs foundering
against the rocks.” Gross v. Waywell, 628 F.Supp.2d 475, 479-80 (S.D.N.Y. 2009) (granting
motion to dismiss RICO claims after describing how vast majority of RICO cases result in “total
loss” to plaintiffs). Plaintiff here—like others before them—have failed to plead the requisite
RICO elements.
A. Roger Stone did not Participate in Management of Enterprise Affairs
Even if Plaintiff was able to show that Roger Stone associated with an “enterprise”—
something it has not done—Plaintiff must also allege that each defendant conducted or
participated in the conduct of the enterprise’s affairs. The Supreme Court has held that the
“conduct or participate” element requires a defendant to “have some part in directing those
affairs.” Reves v. Ernst & Young, 507 U.S. 170, 179 (1993). More precisely, “one is not liable
16

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 21 of 23

under [§ 1962(c)] unless one has participated in the operation or management of the enterprise
itself.” Id. at 183; see also In re Ins. Brokerage, 618 F.3d 300, 370-71 (3d Cir. 2010) (“[m]ere
association with an enterprise does not violate § 1962(c)”). Indeed, the Supreme Court
previously has said that liability “depends on showing that the defendants conducted or
participated in the conduct of the ‘enterprise's affairs,’ not just their own affairs.” Cedric
Kushner Productions, Ltd. v. King, 533 U.S. 158, 163 (2001) (citing Reves, 507 U.S. at 185)).
"In Reves v. Ernst & Young, the Supreme Court interpreted the operative language to
require a RICO defendant charged with violating section 1962(c) to have had “some part in
directing [the enterprise’s] affairs.” D'Addario v. D'Addario, 901 F.3d 80, 103 (2d Cir. 2018)
(citing Reves, 507 U.S. at 179)) (emphasis in original). A RICO defendant will not be liable for
mere participation in a racketeering act, but will sustain liability under the statute for
participation in the “operation or management of an enterprise through a pattern of racketeering
activity.” D'Addario, 901 F.3d at 103 (citing Reves, 507 U.S. at 184; see also First Capital Asset
Mgmt. v. Satinwood, Inc., 385 F.3d 159, 176 (2d Cir. 2004)).
The management requirement applies also to Roger Stone. The lawsuit does not allege
Roger Stone had a management or operational position in the Campaign at all. It also does not
allege that Stone had a management role (or that he was even communicating with the other
“Trump associates”), the association in fact enterprise. In short, Stone did not have any part in
directing the enterprise's affairs as required by the law in this Circuit. See id. At best, Stone is
talking to a Russian hacker on twitter about a hack and theft after the DNC's data was stolen.
Those alleged communications do not allege a plausible scenario of coordination. This failure
requires dismissal of the RICO count.

17

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 22 of 23

B. Roger Stone Did Not Commit A Predicate Act
Roger Stone is not alleged to have committed any predicate act nor conspire to commit a
predicate act, therefore he cannot be liable under RICO. The DNC wishes to include Roger Stone
in the RICO count but has not alleged he committed any of the predicate acts. The Campaign
thoroughly explained the law and Plaintiff's pleading deficiency in its brief. (See § II.C,
Campaign's brief). Stone did not commit economic espionage since he is not alleged to have
stolen or reviewed the DNC's emails; or helped them do it. He also did not commit theft of trade
secrets for the same reasons.
Stone's first allegation is after July 22, 2016, so he could not have committed the first
predicate acts on that date. (See Am. Compl. ¶¶ 237-38). Furthermore, Stone also only allegedly
communicated about John Podesta; therefore, he could not have committed economic espionage
or theft of trade secrets against the DNC. Lastly, RICO statute under § 1962(c) does not support
an aiding and abetting theory. DeFalco v. Bernas, 244 F.3d 286, 330 (2d Cir. 2001) (citing
Central Bank of Denver v. First Interstate Bank, 511 U.S. 164 (1994)).
This Circuit is clear: "Therefore, we hold that standing may be founded only upon injury
from overt acts that are also section 1961 predicate acts, and not upon any and all overt acts
furthering a RICO conspiracy." Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d
Cir. 1990). As a matter of standing and sufficiency of the pleadings under Rule 12(b)(6), Plaintiff
fails to make its RICO case and its tagalong conspiracy against Roger Stone.
CONCLUSION
The Court should dismiss the complaint for lack of subject-matter jurisdiction.
Alternatively, it should dismiss the complaint for failure to state a claim.

18

Case 1:18-cv-03501-JGK Document 205 Filed 12/07/18 Page 23 of 23

Respectfully submitted,

Dated: December 7, 2018

/s/ Robert Buschel
Robert C. Buschel
Grant J. Smith
(admitted pro hac vice)
STRATEGYSMITH, P.A.
401 EAST LAS OLAS BOULEVARD
SUITE 130-120
FORT LAUDERDALE, FL 33301
[phone]
[e-mail]

Robert C. Buschel
Counsel of Record
(admitted pro hac vice)
BUSCHEL GIBBONS , P.A.
ONE FINANCIAL PLAZA – SUITE 1300
100 S.E. THIRD AVENUE
FORT LAUDERDALE, FL 33394
[phone]
[e-mail]
Counsel for Roger Stone

CERTIFICATE OF SERVICE
I certify that on December 7, 2018, I electronically filed the foregoing with the Clerk of
Court using the CM/ECF system, which will send a notice of electronic filing to all registered
parties.
/s/ Robert Buschel
Robert C. Buschel
Counsel for Roger Stone

19

Case 1:18-cv-03501-JGK Document 205-1 Filed 12/07/18 Page 1 of 1

Case 1:18-cv-03501-JGK Document 205-2 Filed 12/07/18 Page 1 of 1

Case 1:18-cv-03501-JGK Document 205-3 Filed 12/07/18 Page 1 of 1

Roger Stone did not join alleged relevant conspiracy
Roger Stone never
mentioned by DNC
in complaint prior to
dissemination
(July 22, 2016)

Roger Stone member
of the Trump
Campaign March 2015

Roger Stone parts
ways with the
Trump Campaign
August 2015

Post email
dissemination allegation
against Roger Stone
July 22, 2016
First Tranche - DNC
emails released

June 14, 2016,
Guccifer 2.0 claims
credit for the DNC
materials provided
to WikiLeaks

“...it will soon the Podesta's
time in the barrel.”
(Amended complaint ¶ 20)
Aug. 21, 2016

July 22, 2016
Plaintiffs’ emails
posted by
WikiLeaks from
DNC database

Roger Stone’s FIRST and
ONLY 3 direct messages
with Guccifer 2.0 begin on
August 14, 2016

AFTER WikiLeaks disseminated
the DNC emails and the Podesta
emails, it was not until October 13,
2016, well after the release, that
Roger Stone had his FIRST
unrelated Direct Message
exchange with WikiLeaks

October 7, 2016, WikiLeaks
publishes emails of
John Podesta
(Not DNC Emails)

All communications with
WikiLeaks & Guccifer 2.0 are
post dissemination of
DNC emails