STATE OF ILLINOIS ) ) SS .

COUNTY OF COOK )

IN THE CIRCUIT COURT OF COOK COUNTY COUNTY DEPARTMENT - CRIMINAL DIVISION

The People of the State of Illinois, Plaintiff,

v.

Annabel Melongo, Defendant.

) ) ) ) ) ) )

08-CR-I0502

PEOPLE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS INDICTMENT

PI LED JUOGE STEV~N J. GOEBEL 1954

AUG 28 2012

CLERK OF THE CIRCUIT COURT CRIMINAL DIVISION

The People of the State of Illinois, by and through their Attorney, ANITA ALVAREZ,

State ' s Attorney of Cook County, through her Assistant, Robert Podlasek, respectfully move this

Court to deny Defendant' s Motion to Dismiss Indictment.

On July 26, 2010, Defendant through her attorney at the time, 1. Nicholas Albukerk, filed

a motion to dismiss the indictment against her. The basis of the motion is a claim of perjury

based on a misreading of the May 28, 2008 grand jury testimony of Detective Martin of the

Schiller Park Police Department. Further, the claim of perjury is based on a misreading of the

grand jury transcript, and because the alleged misrepresentation is not material, Defendant' s

motion must be denied.

The Defendant's motion argues that the indictment should be dismissed for "fraud and

perjury given by the State ' s witness, Detective William Martin" in the grand jury. Taking the

Defendant's claims more broadly, she has not demonstrated any denial of her due process rights

prejudicing her defense.

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A trial court has limited authority to dismiss charges prior to trial. The court may do so

only under the grounds set forth in section 114-1 (a) of the Code of Criminal Procedure or "where

there has been a clear denial of due process which prejudiced the defendant." People v. Knopp,

557 N .E.2d 970, 973 (Ill. App. Ct. 1990). The Defendant has not made such a showing.

The Defendant is claiming that Detective Martin of the Schiller Park Police Department

perjured himself and made materially false and misleading testimony while testifying before the

grand jury on May 28, 2008. To commit perjury one must make a false statement, material to

the issue or point in question, which one does not believe to be true. 720 Ill. Compo Stat. 5/32-

2(a).

The relevant parts of the May 28, 2008, grand jury transcript of Detective Martin reads as

follows (from pages 6 and 8):

16 Q. During that investigation did you learn she had

17 been accused of stealing e-mail from the president's e-mail

18 account and intruding into the computer servers and

19 deleting files?

20 A. Yes.

And then later on page 8:

15 Q. These experts that were hired by Save a Life, did

16 your investigation reveal that they were able to trace the

17 individual responsible for intruding on the system?

18 A. Yes.

19 Q. And this was done by tracing the actual intrusion

20 by back stepping it?

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21 A. Yes. They went into the server log which kept

22 track of every single computer that accessed the server and

23 using those logs and an IP address search we tracked it

24 back to Ms. Melongo ' s computer.

The key fact from the first excerpt is that the intrusion into Save a Life' s computer

systems had two elements: an intrusion into the email servers and an intrusion into the file

servers. Although the word "steal" is used to refer to the emails instead of the word "intrude,"

clearly stealing emails from an email server constitutes an intrusion into the email server.

This is important since the crux of defendant's perjury claim is that "it was either a

discovery violation or a material misrepresentation to the Grand Jury to say that the experts hired

by SALF traced the deletion of data back to the Defendant." (Def. motion ~1 0). This is partially

correct in that the experts hired by SALF did not trace the file server intrusion - SALF personnel

only traced the intrusion into the email server (see attached exhibit 1). But there is no perjury

since if you look at the second excerpt from the grand jury transcript, Detective Martin does not

claim that SALF personnel traced the file server intrusion: he does not even reference the

deletion of files , he just says that SALF personnel traced an intrusion in general, which could

refer to the email server intrusion. Thus there is no misrepresentation to base a perjury claim

upon.

Even assuming, arguendo, that Detective Martin said it was SALF personnel that traced

the file server intrusion, rather than Illinois Attorney General ' s Office investigators (who did

trace the file server intrusion after searching Defendant' s laptop) this is not material. The issue in

question is whether there was probable cause to indict for computer tampering.

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To the extent that the defendant disputes findings of the SALF and the Illinois Attorney

General ' s Office investigation, whether the defendant could have accessed SALF computers,

whether it was the defendant's intrusion and tampering with emails that ultimately led to the loss

of data, a motion to dismiss is not the appropriate way to address these concerns. "Grand jury

proceeding are not intended to approximate a trial on the merits." People v. Fassler, 605 N.E.2d

576 (Ill. 1992). Indictments are proper when the People have presented any evidence from

which an inference of criminal conduct can be drawn. People v. Rodgers, 442 N.E.2d 240, 245

(Ill. 1982). In this case, the People have provided ample evidence in the form of Detective

Martin's testimony implicating the Defendant.

The Defendant's arguments that alleged discovery violations require dismissal of the

indictment also must fail. The court in People v. Beu 644 N.E.2d 27, 30 (2nd Dist. 1994) held

that:

The trial court has the inherent authority to dismiss an indictment where there has been "an unequivocally clear denial of due process." ( People v. Lawson (19 77), 67 Ill. 2d 449, 456, 10 Ill. Dec. 478, 367 NE2d 1244; see also People v. Knop (1990) , 199 Ill. App. 3d 944, 949, 146 Ill. Dec. 28, 55 7 NE2d 970.) However, this power should be utilized with restraint, and a due process violation will warrant dismissal only where the violation is clear and can be ascertained with certainty. ( People v. Polonowski (1994), 258 Ill. App. 3d 497, 500, 196 Ill. Dec. 318, 629 NE2d 1162.) An indictment returned by a lawfully constituted grand jury is presumed valid and sufficient to justify a trial of the charges on the merits. People v. Torres (1993), 245 Ill. App. 3d 297, 300, 184lll. Dec. 311, 613 NE2d 338.

The merits of a case are not meant to be decided "in the vacuum of a motion to dismiss." ( People v. Gerdes (1988), 173 Ill. App. 3d 1024, 1031, 123 Ill. Dec. 535, 52 7 NE2d 1310, citing People v. Rose (19 76), 44 Ill. App. 3d 333, 338, 2 Ill. Dec. 899, 357 NE2d 1342.) In ruling on a motion to dismiss the indictment, the trial court is not permitted to "recognize and act upon any defenses it considers may exist to the indictment." People v. Lightner (1986) , 145 Ill. App. 3d 741, 745, 99lll. Dec. 694, 496 NE2d 269; see also Knop, 199 Ill. App. 3d at 950.

******** However, the prosecutor has no duty to present exculpatory evidence to the grand jury. (United States v. Williams (1992), 504 U.S. 118 L. Ed. 2d 352,368, 112 S. Ct. 1735, 1745-46; People v. Torres (1993), 245 Ill. App. 3d 297, 300-OJ, 184 Ill. Dec. 311, 613 NE2d 338.) "It is axiomatic that the grand jury sits, not to determine guilt or innocence, but to

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assess whether there is adequate basis for bringing a criminal charge." (Williams, 504 U.S. at 118 L. Ed. 2d at 368, 112 S. Ct. at 1744.) Grand jury proceedings are "not intended to approximate a trial on the merits." ( People v. Fassler (1992), 153 Ill. 2d 49, 59, 178 Ill. Dec. 782, 605 N E.2d 576.) The prosecutor's duty is to present to the grand jury information that tends to establish probable cause. Fassler, 153 Ill. 2d at 60.

If this Court were to find that discovery violations have occurred the proper remedy is a

continuance to correct said violations.

Wherefore, for all the foregoing reasons, the People urge this Honorable Court to deny

Defendant's Motion to Dismiss the Indictment.

By:

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Respectfully submitted, ANIT A ALVAREZ Cook County State' s Attorney

Robert Podlasek, Assistant State 's Attorney

"

Carol Spizzirri

From: Sent: To: Subject:

Technical Support [tsupport@gmail,com) Thursday, May 04, 20069:41 PM Carol Spizzirri Re: FW: Regarding the prior email...

Looking for the IP address of the IT person from the mail log on the server , ---------------------------------------------------------------------------~--------------

--------------------------------------------------- (. \ bash-2 . 0Sbll grep 24.1S.202 . 102 /var/log/exim_mainlog ~,...."rl '>((..!If J

2006-0S-01 20:31 : 40 1Fajjo-0002WM-Eb <= ~spizzirri@salf.org U=ftpsalf P=local S=6270 id=4849.24.1S.202.102.1146S33S00.squirrel@www.salf.org 2006-0S-01 23:01:31 IFam4o-0007NG-U3 <c cspizzirri@salf . org U=ftpsalf P=local S=4221 id=2431.24.1S . 202 . 102.1146542490.squirrel@www.salf . org

t" .... (.,,\ This is the actual record showing her sending the email FROM Carol ' s email address to her own Yahoo based email address. Note the IP in the log .. . ----------------------------------------------------------------------------,-------------

bash-2.0Sbll grep 1Fajjo-000 2WM-Eb / var / log / e x im_mainlog

2006-05-01 20 ; 31; 40 1Fajjo-0002WM-Eb <= cspizzirri@salf . org U=ftpsa1f P=local S=6270 id=4849.24.1S.202.102.1146533500.squirrel@www.salf . org 2006-05-01 20:31 : 41 1Fajjo-0002WM-Eb => .melongo_annabel@yahoo.com R=lookuphost T=remote smtp H=mx2 . mail . yahoo.com [67.28 . 113 . 70] 2006-0S-01 20:31:41 1Fajjo-0002WM-Eb Completed

Again second mes s a ge goi ng fr om Carol's address t o her Yahoo Email Addre ss:

2006- 0 5- 0 1 23: 0 1 :3 1 IFam 4o- 000 7NG-U3 <= c spiz z irri @salf.org U=f t psalf P=local S=4221 id=2431.24.1S.202 . 102.1146542490.squirrel @www . salf.org 2006-05-01 23:01:3S IFam40-0007NG-U3 => melongo annabel @yahoo.com R=lookuphost T=remote smtp H=mx2 . mail.yahoo . com-[67.28.l13.72] 2006-05-01 23:01 ; 3S 1Fam4o-0007NG-U3 Completed

On S/4/06, Carol Spizzirri <cspizzirri@salf . org> wrote: > > > -----Original Message---- -> From: Christian B. Sass [mailto : csass@salf.org] > Se n t: Monday , Ma y 01 , 20 0 6 11:31 PM > To : Carol Spi z zirri > Cc : dstolerow@salf . org; vdavis@salf . org; Brian J . Salerno > Subject: Regarding the prior email . . . > > Carol, > > > I noticed that you weren't actually included in the recipient list of the > following email, which may explain the cryptic voice mail you might have > already heard from me. > > > > > > > On May 1, 2006, at 8:17 PM, Mel o ngo Annabel wrote : > >

' .

> Hey Carol, > I've received this email forwarded to me and I can't imagine what a > pathological liar you're. I've learned about your issue today and I offeied > my help because while working there, I got the same issue. The problem with > you Carol, you lie too much just to get what you want. I do hope that yo~'re > still going to have your trial with Robert Half, I will expose you. > > From: Carol Spizzirri [mailto:cspizzirri@salf.orgj > Sent: Monday, May 01, 2006 6:04 PM > Subject: RE: downed system > > Think we found who -> Annabell called x4 and stopped in three - left message on my cell offering > to fix our problem. Very similar to former IT who corrupted system. Have ~ot > spoke with her - she refused to speak with Christian - go figure! > Tks much for your followthrough - we are so behind it hurts. > > > > from my initial observation the link in this email to your email address > leaves a interesting bread-crumb. it links to the cpanel interface. > > > [http://www.salf.org:2095 /3 rdparty/squirrelmail/src/compose.php?send to=cspizzirri% 40salf.org] -> > > This leads me to believe she was connecting through the webmail interface. I > will be reviewing all access logs and changing passwords tonight. As soon as > I have more information to report you will be the first to know. > >

\ > I had assumed that she only had the salf.org and perrymedic.org In response > to this I changed the root passwords on all accounts. This will not affect ' > your or others email. I find it highly unlikely that someone actually > forwarded anything to her and will be investigating further. > > > > > sorry you're being put through all this . I will do my best to protect your ' > interests. > > > Sincerely, > > > Christian > > > > > > > > > ps-> following is the entire email with all headers and raw code: > > > ---------------------------------------------------------------------------,------------

> > > > > Return-path: <me l ongo_annabel@yahoo . com>

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., ... > Envelope-to: csass@salf.org > Delivery-date: Mon, 01 May 2006 20:28:24 -0500 > Received: from [206.190.38.202) (helo=web51510.mail.yahoo.com) > by server2.vipgeek.com with smtp (Exim 4.52) > id IFajge-000253-FT > for csass@salf.org; Mon, 01 May 2006 20:28:24 -0500 > Received: (qmail 29180 invoked by uid 60001); 2 May 2006 01:17:43 -0000 > DomainKey-Signature: a=rsa-sha1; q=dns; c=nofws; > s=s1024; d=yahoo.com; > h=Message-ID:Received:Date:From:Subject:To:MIME-Version:Content-Type:Cont¢nt-Transfer-

Encoding; > b=Wj/DLEvG/3NWVPivrkJWfByOQTtiAvMHOJsQAOOP9tGTq4wFWEaC9DmnFDWxzW6Jxh2Rmw7~NISiLtRAnuj61n Qt006ZHIfjoI21lHiPiI9Eqkd+vH+/2BeAHaqclhTc/P057zUzvznsVBTWOpkKslc8rjMJ2MMZI~Sd75S/F6U~ > > Message-ID: > <20060502011743.29l78.qmail@web51510.mail.yahoo.com> > Received: from (24.15.202.102J by web51510.mail.yahoo.com via HTTP; Mon, Q1 > May 2006 16:17:43 PDT > Date: Mon, 1 May 2006 16:17:43 -0700 (PDT) > From: Melongo Annabel <melongo annabel@yahoo. com> > Subject: How far are you gOing-to go, Carol? > To: sgholar@sa1f.org, dneal@sa1f.org, dstolerow@sa1f.org, rbarnes@salf.org, > vdavis@sa1f.org, csass@salf.org, Brian.Salerno@True-Consult.com > MIME-Version: 1.0 > Content-Type: multipart/alternative; > boundary="0-1279636585-1146532663=:2887B" > Content-Transfer-Encoding: 8bit > > > --0-1279636585-1146532663=:28878 > Content-Type: text/plain; charset=iso-8859-1

, ~ Content-Transfer-Encoding: 8bit

> > Hey Carol, > I've received this email forwarded to me and I can't imagine what a > pathological liar you're. I've learned about your issue today and I offere~ > my help because while working there, I got the same issue. The problem with > you Carol, you lie too much just to get what you want. I do hope that you're > still going to have your trial with Robert Half, I will expose you.

> > > From: Carol Spizzirri [mailto:cspizzirri@salf.org) > Sent: Monday, May 01, 2006 6:04 PM > Subject: RE: downed system > > > Think we found who -> Annabell called x4 and stopped in three - left message on my cell offering ' > to fix our problem. Very similar to former IT who corrupted system. Have nqt > spoke with her - she refused to speak with Christian - go fiyure! > Tks much for your followthrough - we are so behind it hurts. > > > > > > > --0-1279636585-1146532663=:28878 > Content-Type: text/html; charset=iso-8859-1 > Content-Transfer-Encoding: Bbit

~ > > > <div>Hey Carol. </dlv> <div>I've received this email forwarded to me and I > can't imagine what a pathological liar you're. I've learned about your issue > today and I offered my help because while working there, I got the same > issue. The problem with you Carol, you lie too much just to get what you

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> want. I do hope that you're still going to have your trial with Robert Ha~f, > I will expose you.</div> <div>&nbsp;</div> <div>From: Carol Spizzirri > [mailto:<A > href=lIhttp://www.salf.org:2095/3rdparty/squirrelmail/src/compose.php?send_to=cspizzirri% 40salf.org">csplzzirri@salf.org</A» > <BR>Sent: Monday, May 01, 2006 6:04 PM<BR>Subject: RE: downed > system<BR><BR>Think we found who -<BR>Annabell called x4 and stopped in > three - left message on my cell offering<BR>to fix our problem. Very similar > to former IT who corrupted system. Have not<BR>spoke with her - she refused > to speak with Christian - go figure!<BR>Tks much for your followthrough - we > are ~o behind it hurts.<BR><BR></div> > --0-1279636585-1146532663=:28876--> > > > > >

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