Democratic National Committee v. The Russian Federation et al

Filing 236

MEMORANDUM OF LAW in Support re: #235 MOTION to Dismiss . . Document filed by Roger J. Stone, Jr. (Attachments: #1 Exhibit Guccifer 2.0 tweet, #2 Exhibit Podesta's time n the barrel tweet)(Buschel, Robert)

Case 1:18-cv-03501-JGK Document 232 Filed 03/04/19 Page 1 of 24

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DEMOCRATIC NATIONAL COMMITTEE
CASE NO. 1:18-CV-03501-JGK

Plaintiff,
v.
THE RUSSIAN FEDERATION, et. al.,
Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
ROGER STONE’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
PURSUANT TO RULES 12(B)(1) AND 12(B)(6)

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 232 Filed 03/04/19 Page 2 of 24

TABLE OF CONTENTS

INTRODUCTION ………………………………………………………………………….…….1
ARGUMENT…………………………………………………………………………………….10
I.

THE COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION
BECAUSE PLAINTIFF LACKS ARTICLE III STANDING ……………………...10

II.

PLAINTIFF FAILS TO STATE A CLAIM UPON WHICH RELIEF
CAN BE GRANTED.………………………………………………….………….....13
A. Standard of Review ……………………………………………………………..…...13
B. Stone Did Not Join Any Conspiracy………...……………………………………….14
1. Conspiracy between Stone and Russian agents ………………………………....14
2. 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
C. Lying to Congress and Witness Intimidation are Not Overt or Predicate Acts……...19

CONCLUSION ………………………………………………………………………………….19
CERTIFICATE OF SERVICE ………………………………………………………………….20

Case 1:18-cv-03501-JGK Document 232 Filed 03/04/19 Page 3 of 24

TABLE OF CITATIONS
Cases
All. For Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82 (2d Cir. 2006)................ 11
Ashcroft v. Iqbal, 556 U.S. 662 (2009). ................................................................................. 13, 14
Bartnicki v. Vopper, 532 U.S. 514 (2001). ............................................................................. 12, 15
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................ 13, 14
Central Bank of Denver v. First Interstate Bank, 511 U.S. 164 (1994)). ..................................... 18
Cedric Kushner Productions, Ltd. v. King, 533 U.S. 158 (2001)………………………………..16
Cockrum v. Donald J. Trump for President, Inc.,
319 F. Supp.3d 158 (D.D.C. 2018) ............................................................................... 10, 12, 19
D'Addario v. D'Addario, 901 F.3d 80 (2d Cir. 2018)……………………………………………17
DeFalco v. Bernas, 244 F.3d 286 (2d Cir. 2001) ......................................................................... 18
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) ...................................................................... 14
Frydman v. Verschleiser, 172 F. Supp. 3d 653 (S.D.N.Y. 2016) ................................................. 14
Gross v. Waywell, 628 F. Supp. 2d 475 (S.D.N.Y. 2009) ............................................................ 16
Grunewald v. United States, 353 U.S. 391, 402 (1957)………………………………………….18
Hecht v. Commerce Clearing House, Inc., 897 F.2d 21 (2d Cir. 1990) ....................................... 18
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ........................................................................... 11
In re: Ins. Brokerage, 618 F.3d 300 (3d Cir. 2010) ..................................................................... 16
Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014). ........................................................... 15
Lopez v. Council on Am.-Islamic Relations Action Network, Inc.,
657 F. Supp. 2d 104 (D.D.C. 2009)…..……………………………………………………….19

Case 1:18-cv-03501-JGK Document 232 Filed 03/04/19 Page 4 of 24

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................... 11
Pyramid Sec. Ltd. V. IB Resolution, Inc., 924 F.2d 1114 (D.C. Cir. 1991)……………..……….19
Reves v. Ernst & Young, 507 U.S. 170 (1993)........................................................................ 16, 17
United States v. Andrews, 532 F.3d 900 (D.C. Cir. 2008)………………….……………………19
Statutes
Communications Decency Act of 1996, 47 U.S.C. §230 ............................................................. 14

Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §1962(c)…16, 18
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. ............................................................................................................. 10, 11
Rules
Rule 12(b)(1)……………………………………………………………………………..……..11
Rule 12(b)(6) ........................................................................................................................... 13, 18

Case 1:18-cv-03501-JGK Document 232 Filed 03/04/19 Page 5 of 24

INTRODUCTION
Plaintiff, the Democratic National Committee (“DNC”) alleges Russians, working on
behalf of their own 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” political strategies. Roger
Stone is not alleged to have hacked, transferred, or touched the emails or other data the DNC
claims were disseminated. In the Second Amended Complaint, Plaintiff does not clearly
articulate Roger Stone’s objectives. 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, nonetheless,
concludes that Stone conspired with Russian hackers and WikiLeaks -- for the publication (i.e.
only the dissemination) of those emails for distinct and evolving goals. 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 (by others) of DNC emails with people and entities Roger

1

GET

ME

ROGER

STONE,

a

NETFLIX

https://media.netflix.com/en/only-on-netflix/128318

Original

Documentary,

(2017).

Case 1:18-cv-03501-JGK Document 232 Filed 03/04/19 Page 6 of 24

Stone does not know or barely knows. The DNC can only seek remedies for torts relating to the
misuse of its data, not the data of or injuries to others. As a matter of law this proposition is
critical to the analysis of Roger Stone’s alleged culpability. The DNC, however, 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, the purported case against
Stone relates to “the Podesta’s” allegedly stolen emails which 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 racketeering enterprise and conspiracy Stone did not join. Similar allegations
about lying to Congress and intimidating witnesses are unproven allegations that occurred well
after the DNC’s “conspiracy” and the enterprise had ended. In this version of the lawsuit, the
DNC attempts to solve this problem by alleging the enterprise is open-ended and still ongoing
since Trump is still the president.
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 Stone because it thinks he
may have been involved in a larger, yet different, conspiracy in a purported effort to tilt the

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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. No doubt, if it were
allowed to try, the effort would invite the Special Counsel’s Office to intervene. 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 with prejudice.2
ALLEGATIONS
Roger Stone is a defendant in the RICO (count II), RICO conspiracy (count III), wiretap
act violation (count IV), violation of Uniform Trade Secrets Act, a statute in D.C. (count VIII),
conspiracy to trespass chattels, a Virginia common law claim (count XII), and violation of
Virginia Computer Crimes (count XIV). 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 tranche of DNC data released and hack of both D.C. and Virginia servers), what acts
he allegedly committed to in fact join the enterprise or any conspiracy, and do those acts allege a
conspiracy or torts to which the DNC can seek a remedy in this Court. The second amended
complaint alleges that in August 2016, Stone began communicating "secretly" with GRU
operatives and bragged about his contacts with Assange. (SAC ¶ 21). Stone did not brag to GRU
operatives even though the allegation, as a matter of grammar, seems to suggest it. Other than the

2

Defendant Roger Stone, pursuant to this Court’s Order (Dkt. 181 at 2), adopts the argument

made in the global motion to dismiss, as well as other Defendants’ supplemental briefs, so
applicable.

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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.
Next, the DNC alleges Roger Stone was prophetic because he "revealed information he
could not have had unless he were communicating with WikiLeaks, Russian operatives or both.
(SAC ¶ 22). An example cited is: In August of 2016, nobody in the public sphere knew that
Russia had stolen emails from John Podesta, 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 Podesta’s emails on a near-daily basis until Election
Day—as Stone had predicted. (SAC ¶91).
WikiLeaks merely telling Stone that it has non-specific information is not a tort. But the
DNC emphasizes that “Stone discussed highly confidential and strategic information stolen from
another Democratic party institution and disseminated to the public.” (SAC ¶ 23). This
admission in and of itself proves that the Podesta emails were not part of the DNC records.
Since the DNC alleged that Stone's prediction about “the Podesta’s” proves Stone joined the
relevant conspiracy and enterprise it is absolutely defeated by the fact John Podesta's emails were
not on the DNC server or that of the other “Democratic party institution.” Similarly, in midSeptember 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.” Id. And,
beginning on October 7, 2016, WikiLeaks began releasing stolen emails at least once a week—as
Stone had predicted. Id.
Then the DNC alleges Stone and other defendants misled various government agencies.
Stone did not lie to the Special Counsel or the FBI; he only appeared or testified to one

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congressional committee. 3 He is alleged to have intimidated a witness who “threatened to
contradict his narrative about his communications with WikiLeaks.” (SAC ¶ 30). But neither the
testimony to Congress, nor the “intimidation” occurred prior to the 2016 presidential election.
The DNC describes the decades' earlier relationship between Defendants Manafort and
Stone who worked together in 1977, the 1980s, and over ten years ago. (SAC ¶ 58). Stone
worked against Manafort’s candidate during a Ukrainian election. Id. The above allegation alone
or in conjunction with the other allegations fails to create a plausible allegation that Roger Stone
joined a conspiracy with Paul Manafort to steal and disseminate the DNC’s emails.
It is impossible to analyze the plausibility of allegations where the DNC lumps several
defendants together claiming, for the first time in the second amended complaint, “were in
frequent contact with individuals connected to Russian intelligence and the Russian government.”
(See SAC ¶89). The DNC drafts allegations that imply two allegations have a relationship to
each other, but never provides anything but hollow words. For example, Stone believed Assange
had emails belonging to Secretary Clinton (not DNC), and the same day Guccifer 2.0
disseminated another set of stolen documents, but not Clinton's. (SAC ¶165).

3

Roger Stone has been indicted in the District of the District of Columbia. (Case No.

1:19-cr-18-ABJ). The indictment charges Stone with lying to Congress and intimidating a
witness, Randy Credico in relation to Credico asserting his Fifth Amendment right to a House
Committee. The indictment is not for conspiracy, RICO, theft, or trespass. The DNC alleges an
open-ended RICO, something the Special Counsel has not been willing to allege against any
American.

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Stone then “began secretly communicating with GRU operatives. . . .” (SAC ¶ 167).
That "secret" communication was a direct message on Twitter, they were not secret, just not
public, but now they are public. The message: “please tell me if i can help u anyhow. it would
be a great pleasure to me.” (sic). Id.4
Another attempted showing of prophesy: 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." (SAC ¶ 172). On
October 1, 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." (SAC ¶ 174). "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. (SAC ¶ 175). (emphasis added).
Four days later was not a Wednesday, so this tweet was not as predictive as alleged. (See
id.). Again, the stolen Podesta emails were not on the DNC’s servers. Lastly, claiming Stone

4

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, Dkt. -1).

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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.
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. (See SAC ¶ 164)
(Stone claims communication with Assange "the next tranche of his documents pertain to the
Clinton Foundation, but there’s no telling what the October surprise may be.”). 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 Dkt. 182, Am. Compl. ¶¶ 142-145) (“Assange appeared on
British television”).
New allegations in the second amended complaint state Stone directed Jerome Corsi (not
a defendant) to "connect with Assange and WikiLeaks." (SAC ¶ 162). This allegation ignores the
fact that the communications to which the DNC cites all took place after the July 22, 2016,
release of information by WikiLeaks. There is no allegation that Corsi did communicate with
Assange or WikiLeaks. And information supposedly relayed an October surprise was a planned
unspecified release of information a month before the November election. Id. The next allegation
is that Stone "dined" with his "pal" Julian Assange. (SAC ¶163). First, the allegation does not
describe the context of the remark. Second, there are no allegations Stone got into the
Ecuadorian Embassy (or was even in London on the date specified), or that Assange left the
Embassy in London. If it is a reference to an online meeting, the DNC does not allege it occurred
or that the direction from Stone to Assange occurred. Because if Assange told Stone, ‘WikiLeaks

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is continuing to release information,’ that would not be a tort. Lastly, WikiLeaks denies any
communication with Stone. (SAC ¶ 176).
The DNC also alleges that Stone visited the Ecuadorian Embassy in London where
Assange lives in March 2017. (SAC ¶215). Stone visited Assange in the same way someone
visits the Pope by walking by the Vatican. The DNC does not even cite the timeframe correctly.
In fact, the article it cites states that Mr. Stone was in London in February of 2018. (SAC n.195).
Also, this is a meaningless allegation because the allegation is a year after Trump is elected as
president. In fact, the DNC alleged requests by Stone, for Corsi to write a supportive article for
Stone and Stone communicating to Credico that he is trying to secure a pardon for Assange, or
any threats to Credico, all occur after Trump was elected and the most expansive objective of a
conspiracy or racketeering enterprise could not be met. (SAC ¶¶ 214, 226, 228, 229).
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 SAC ¶ 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.
170. 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.
(SAC ¶ 170)(emphasis added).
The tweet was materially misquoted by Plaintiff. It should read: “Trust me, it will soon [ ]
the Podesta’s time in the barrel.” (See SAC ¶ 22 and Exhibit No.-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

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the DNC's database. Short of three weeks later, the Podesta emails were allegedly disseminated
by WikiLeaks. (SAC. ¶ 170). 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. And
any allegations that Stone knew about Podesta’s emails does not support its theory Stone gave
advice to WikiLeaks regarding dissemination of DNC emails.
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
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.
The DNC then alleges the GRU asked for Stone’s assistance in its scheme.
179. 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.”
(SAC ¶ 179)(emphasis added).
This communication does not support a conspiracy or a managing membership in a
racketeering enterprise. 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. Plaintiff’s Second 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 of a United States political consultant that was in the
public domain.

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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 15, and referenced as the
turning point in this racketeering enterprise throughout the Plaintiff’s Second 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. 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 mentioned 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.
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 through WikiLeaks. (SAC ¶¶ 34, 84, 101, 347, 362). But some of its
allegations, mostly about Roger Stone’s involvement, relate to a completely different set of data
– the Democratic Congressional Campaign Committee (“DCCC”) and Hillary Clinton’s
campaign, and the source of her campaign manager John Podesta’s emails. See Cockrum v.
Donald J. Trump for President, Inc., 319 F. Supp.3d 158, 166 (D.D.C. 2018). To the extent that

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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.
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. See
also Fed.R.Civ.P. 12(b)(1). 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 enterprise or conspiracy to injure the DNC, steal its “trade
secrets,” or trespass on the DNC’s computers.
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

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publication of emails from the DCCC or John Podesta, Chairman of Hillary Clinton's 2016
presidential campaign.” Cockrum, 319 F. Supp.3d at 166. 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.” (SAC § VI. at 24). 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.
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 predicted future
disseminations, which means he knew of it in advance, 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)
(Campaign Mot. to dismiss at 6-10). Stone is not alleged to have seen the DNC emails or given
advice on their publication to WikiLeaks. Stone commenting on what was to come is a teaser
that any news media has done and continues to do today. But once WikiLeaks had the DNC’s

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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’s allegations are based only on
tenuously connected events that occurred at or near the time they felt they were injured, they fail
to establish 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. PLAINTIFF FAILS 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.

Case 1:18-cv-03501-JGK Document 232 Filed 03/04/19 Page 18 of 24

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 or coached 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. Stone Did Not Join Any Conspiracy Claims
1.

Conspiracy Between Stone and Russian Agents.

In its causes of actions, Plaintiff lumps “Defendants” together as if there were sufficient
specific allegations above. Stone did not conspire to trespass the DNC database in Virginia
because there is no allegation he joined the conspiracy before the hacking occurred. The lawsuit
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-

Case 1:18-cv-03501-JGK Document 232 Filed 03/04/19 Page 19 of 24

51 (11th Cir. 2013) (district court should identify and remove conclusory allegations not entitled
to the assumption of truth).
2.

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 Plaintiff's 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.
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. ‘[T]he 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;” his 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).

Case 1:18-cv-03501-JGK Document 232 Filed 03/04/19 Page 20 of 24

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 failed to do – Plaintiff must also allege that each defendant conducted or
participated in the conduct of the enterprise’s affairs. Plaintiff does not describe Stone's role in
the campaign or in the enterprise as anything other than an "informal adviser." (SAC ¶ 58). 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 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)

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(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. He was merely an
informal adviser. 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 an alleged 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.
B. Roger Stone Did Not Commit a Predicate Act that Supports RICO
Roger Stone is not alleged to have committed any predicate act in relation to a stated goal
of the racketeering enterprise; therefore, he cannot be liable under RICO. The DNC realized it
did not sufficiently allege predicate acts against Stone in previous iterations of the complaint so
it relied upon lying to Congress and witness intimidation. The allegations of lying to Congress
and witness intimidation occurred well after the presidential campaign. Therefore they occurred
well after the injury to the DNC. Stone's motivation for the intimidation is alleged to be an
avoidance of detection of participation in a conspiracy or crime that had already occurred. The
Campaign thoroughly explained the law and Plaintiff's pleading deficiency in its brief. (See §
II.C, Campaign's Motion at 27-34). 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.

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The first allegation against Stone pertaining to the DNC is after July 22, 2016, so he
could not have joined the RICO enterprise until that date. 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.
C. Lying to Congress and Witness Intimidation are Not Overt or Predicate Acts
New to this version of the complaint are allegations that Stone lied to Congress and
intimidated a witness. It is noted that without these allegations there would be no overt or
predicate acts attributable to Stone. The purpose for these acts is for Stone to avoid detection of
managing membership in the purported racketeering enterprise or membership in the conspiracy.
As hot as partisan passions may run, the DNC has not alleged the Trump campaign to reelect him is a function of a criminal enterprise. Thus, the day of WikiLeaks' final release of DNC
data had been disseminated was the end of the conspiracy and the close of the enterprise. This is
because the objective of any purported conspiracy or enterprise has been met. See Grunewald v.
United States, 353 U.S. 391, 402 (1957). Courts have applied Grunewald and its progeny to civil
conspiracies. Cockrum, 319 F. Supp.3d at 182 (citing Pyramid Sec. Ltd. V. IB Resolution, Inc.,
924 F.2d 1114, 1118 (D.C. Cir. 1991)). Lying to Congress did not further the conspiracy to harm
the DNC by way of disseminating its data. Intimidating a witness did not further the conspiracy

Case 1:18-cv-03501-JGK Document 232 Filed 03/04/19 Page 23 of 24

to harm the DNC by way of disseminating its data. While lying to Congress or intimidating a
witness may serve as a predicate act of a racketeering enterprise, it does not here since the object
of the conspiracy and enterprise had been met. Since the successful completion of the conspiracy
did not require concealment, the allegations that Stone lied to Congress and intimidated Randy
Credico do not serve to extend the conspiracy, United States v. Andrews, 532 F.3d 900, 909-910
(D.C. Cir. 2008), or considered predicate acts to support a RICO claim. Lopez v. Council on Am.Islamic Relations Action Network, Inc., 657 F. Supp. 2d 104, 113 (D.D.C. 2009), aff'd, 383 Fed.
Appx. 1 (D.C. Cir. 2010) (citations omitted).
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.
Respectfully submitted,

Dated: March 4, 2019

/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 March 4, 2019, 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.

Case 1:18-cv-03501-JGK Document 232 Filed 03/04/19 Page 24 of 24

/s/ Robert Buschel
Robert C. Buschel
Counsel for Roger Stone