IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIAUNITED STATES OF AMERICA:v.:CRIMINAL NO. 12-080ROCCO MARTINEZ:GOVERNMENT'S CHANGE OF PLEA MEMORANDUMI.INTRODUCTION/BACKGROUND
On February 28, 2012, an indictment was returned by the grand jury charging thedefendant with extortion using interstate communications, in violation of 18 U.S.C. § 875(d).The defendant will tender an open plea of guilty on September 10, 2012.
II.ELEMENTS OF THE OFFENSE
In order to prove a violation of 18 U.S.C. § 875(d), the government must provethe following beyond a reasonable doubt:(1)an intent to extort money or other thing of value(2)from any person, firm, association, or corporation;(3) by a transmission in interstate commerce of a communication containingany threat to injure property or reputation of the addressee or of another . .or any threat to accuse the addressee or any other person of a crime.
III.MAXIMUM STATUTORY SENTENCE
The maximum penalty the defendant faces for a violation of 18 U.S.C. § 875(d) is2 years imprisonment, a one-year period of supervised release, a $250,000 fine, and a $100special assessment.
IV.EVIDENCE IN SUPPORT OF THE CHARGES
On September 13, 2011, at approximately 2:31 p.m., Rocco Martinez, using thehis Gmail account, emailed Linda Miller, the Deputy Executive Director of the Philadelphia
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Parking Authority ("PPA"). Martinez wrote, "I have footage of one of ur PPA officers buying bootleg movies [. . .] and ppa officer saying give me two movies and I will remove ur tickets for free with no problem." Martinez instructed Miller, "contact me before I go public."Miller immediately told the PPA's Executive Director, Vince Fennerty, about thesituation. Fennerty instructed Miller to ask Martinez for his phone number so that Fennertycould talk with him.At approximately 3:33 p.m., Miller emailed Martinez, and said that after PPAviewed the video, management would have its investigator "gather any necessary information todetermine the appropriate disciplinary action towards the enforcement officer." Miller alsoadded, "I hope you will allow us to investigate this matter before you share it with the mediaoutlets."Martinez replied by email within fifteen minutes. He said, among other things, "Iwont put it on any networks till we come to an agreement .. So its 3:47 I can stall but not for longI am very upset about this and people of Philadelphia WOULD BE TO."D. Justin Price, a forensic examiner assigned to the Philadelphia regional
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Computer Forensic Lab would testify that Gmail is an e-mail service that can be accessedthrough secure webmail as well as through POP and IMAP protocols. Regardless of whichmethod is used, users of Gmail must access the internet when either sending or receiving e-mails.Because these e-mails were made via the internet, they were transmitted in interstate commerce.See United States v. MacEwan, 445 F.3d 237 (3d Cir. 2006).
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At approximately 6:02 p.m., Martinez again emailed Miller, informing her that he"just had a meeting with [ . . . ] the columnist from the daily news that wrote the article about uguys in todays newspaper she wants the video she has seen it and loved it so I am going to give utime for it not to go public. Call me @267 670-4611."Fennerty then called Martinez from his PPA office at about 6:40 p.m. Martinezdescribed the video's contents. Fennerty requested a copy so he could investigate the allegations.Martinez asked what was in it for him; Fennerty replied "being a good citizen." Martinez toldFennerty that being a good citizen wouldn't put food on his family's table. He said that the Daily News and Fox offered to pay for the video. Fennerty repeatedly told Martinez that a governmentagency could not pay for evidence, because it would be illegal. Martinez then suggested thatFennerty pay him "off the books." The conversation eventually ended without any resolution of the matter.Martinez contacted the PPA again shortly thereafter. At approximately 7:16 p.m.,Martinez emailed Miller telling her to "have the guy call again cause he said he cant anything."Miller did not respond.Less than ten minutes later, Martinez left Fennerty a voice mail on his PPA phone.He informed Fennerty that he had just spoken with the Daily News. Martinez said that he wantedto "sit down and talk" further with Fennerty, even though he knew "by law [Fennerty] can't dothings." Martinez said he was "leaning towards more PPA, and I just wanna, you know,something out of it, you know."Martinez emailed Miller two more times that evening. In the final email,Martinez wrote, "Channel 6 wants it now." Miller did not respond.
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