Case; 1:15-mc-00124 Document #: 1 Filed: 02/27/15 Page 11 of 32 PagelD #:25 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN IN THE MATTER OF THE SEARCH OF INFORMATION ASSOCIATED WITH ozbyrdbennett@aol.com THAT IS STORED ATPREMISES CONTROLLED BY AOL, Filed Under § Case No. AFFIDAVIT IN SUPPORT OF AN APPLICATION FOR A SEARCH WARRANT. 1, Joseph R. Jensen, being first duly sworn, hereby depose and state as follows: INTRODUCTION AND AGENT BACKGROUND 1. [make this affidavit in support of an application for a search warrant for {information associated with a certain account that is stored at premises controlled by AOL, LLC, (AOL) an e-mail provider headquartered at 22000 AOL Way, Dulles, Virginia. The information to be searched is described in the following paragraphs and in Attachment A. This affidavit is made in support of an application for a search warrant under 18 U.S.C. §§ 2703(a), 2703(b)(1\A) and 2703(6)(1)(A) to require AOL to disclose to the government copies of the information (including the content of communications) further described in Section Lof. Attachment B, Upon receipt of the information described in Section Iof Attachment B, sgovernment-authorized persons will review that information to locate the items described in Section If of Attachment B. 2. Lama Special Agent with the Federal Bureau of Investigation (FBI) and have been since May 2010. Ihave investigated a number of federal violations, including racketeering, interstate transportation of stolen property, cargo theft, bank fraud, money laundering, civil rights violations, and fraud against the government. I have gained experience in conducting such investigations through training and everyday work related to these types of cases.Case: 1:15-me-00124 Document #: 1 Filed: 02/27/15 Page 12 of 32 PagelD #:26 3. This affidavit is intended to show merely that there is sufficient probable cause forthe requested warrant and does not set forth all of my knowledge about this matter. 4. Based on my training and experience and the facts as set forth in tis affidavit, thr is probable caus to believe tht Violations of 18 U.S.C § 666 (Theft or bribery concerning Drograms receiving Federal funds), 18 U.S.C § 1343 (Fraud by wire, radio, or television), 18 USC § 1341 (Mail Fraud), and 18 U.S.C §371 (conspiracy to defraud the United States) have been committed by Barbara Byrd-Bennett and others unknown. There is also probable cause to search the information described in Attachment A for evidence of these crimes further described in Attachment B. JURISDICTION 5. This Court has jurisdiction to issue the requested Warrant because itis “a court of competent jurisdiction” as defined by 18 U.S.C. § 2711. 18 US.C. §§ 2703(a)(b\I)(A) & (CHUA). Specifically, the Court is “a district court of the United States... that — has Jurisdiction over the offense being investigated.” 18 U.S.C. § 2711G\ANG). PROBABLE CAUSE 6. From February 2006 until March 2009, Barbara Byrd-Bennett was employed as a Superintendent in Residency for Houghton-Mifflin Harcourt (HMH) School Publishers, Ptioc to that, from 2008 through 2006, Barbara Byrd-Bennett had been Chief Executive Officer ofthe ‘Cleveland Public Schools system. On May 11, 2009, Detroit Public Schools (DPS) hired Barbara Bycd-Bennett as an independent contractor with the title “Chief Academic and Accountability Officer.” A Letter of Engagement between Barbara Byrd-Bennett DPS was signed by Robert Bobb, DPS Emergency Financial Manager, and Barbara Byrd-Bennett, Article XIII ofthe Letter ‘of Engagement i titled “Conflict of Interest,” and states: 2Case: 1:15-me-00124 Document #: 1 Filed: 02/27/15 Page 13 of 32 PagelD #:27 Consultant undersands and acknowledges thatthe Districts a public educational agency and, consequently, members ofthe District’s Board of Education and eertain ofits employees are subject to legally mandated conflict of interest provisions. With this understanding, Consultant shall not take any action that creates a sitution, which would oF could appear to result in violation of applicable conflict of interest provisions. This Article shall survive the expiration, termination, or cancellation of this agreement. As part of her.employment with DPS, Barbara Byrd-Bennett was assigned the email address Barbara byrd-bennett@detroitk!2.org. 7. On June 1, 2009, DPS hired Sherry Ulery and Tracy Martin as Consultants In ‘their Consultant Agreements, their duty overview states: “Work with the Chiof Academie and Accountability Officer and her team to address the priorities identified in the Academic Plan.” ‘Tracy Martin and Sherry Ulery had both worked in the Cleveland Public School system when Bubara Byrd-Bemett was the CEO, The Consultant Agreements for Tracy Martin and Sherry ‘Ulery both had the same Article XIU, “Conflict of Interest” as in Barbara Byrd-Bennett’s Letter ‘of Engagement. 8. As shown below, there i probable cause to believe that email messages found in ‘the AOL email account ozbyrdbennett@ao]com will support the conclusion that Barbara Byrd- Bennett misrepresented her relationship with HIMH to DPS, that she had a conflict of interest with regard to contracting between DPS and HIME, and that she worked with and through Sherry ‘Ulery, Tracy Martin, and John Winkler to fraudulently steer approximately $40,000,000 in Title 14 American Recovery Restitution Act (AARA) federal funding to HMH through a contract with DPS, 9. On ‘Thursday, August 13, 2009, DPS issued Request for Proposals (RFP) numbered 10-198-2, for “Managed Instruction Program Reading and Mathematics.” Bids on this REP were due in days, on Tuesday, August 19, 2009, Three companies responded to the REP, 3Case: 1:15-me-00124 Document #: 1 Filed: 02/27/15 Page 14 of 32 PagelD #:28 with bids in the following amounts: Lm2innovate ($222,000), HMH ($39,959,825), and Cuiriculum Associates ($4,130,000). The HMH product that was the basis for its RFP was titled “Learning Village 10, Thee individuals were assigned to evaluate the bids for RFP 10-198-2. They ‘were Sherry Ulery and Tracy Martin, the consultants who had been hired by DPS approximately two months earlier to work directly under the supervision of Barbara Byrd-Bennett, and Sophia Lafayette, who was Barbara Byrd-Bennet's Chief of Staff. This committe rated HMH's bid highest during the evaluation, and it was selected by DPS. A contract was drafted stating that ‘between August 31, 2009 and December 31,2010, DPS would purchase $39,959,825.00 in goods and services from Houghton Mifflin Harcourt. Michael P, Lavelle, President, 1-12,” Houghton Miffin Harcourt, and Robert C. Bobb, Detroit Public Schools Emergency Financial “Manager, signed the contract on September 3, 2009, HMB subsequently provided goods and services under this contract, and was paid. 11. Thave reviewed email messages that have been provided by DPS for the DPS email addresses of Barbara Bryd-Bennett, Sandra Senders, Tracy Martin, and Sherry Ulery, for May 1,2009 through August 1, 2011. The emails cited in this Affidavit were found in one or more of the above four email accounts, Each email was sent from a DPS email address unless otherwise noted, 12, Theemails described in paragraphs 13 through 23, below, establish probable cause to believe that HMH’s educational product, “Leaming Village,” was selected by Barbara Byrd-Bennett, Trecy Martin, and Sherry Ulery as erly as June 2009, two months before che REP ‘was released, and thus that the bidding process was rigged to award the contract to HMH-Case: 1:15-mc-00124 Document #: 1 Filed: 02/27/15 Page 15 of 32 PagelD #:29 13, On Thursday, June 18, 2009, Sophia Lafayette sent an email to sta.schaefer@hmhpub.com with the subject line “Learning Village Presentation.” The body of ‘the email stated: “Rits, everything is set for your (sic) to come next Tuesday, June 23, 2009 at 10:00a.m. The presentation will be located at Detroit Public Schools headquarters located at 3011 W. Grand Bivd, Detroit, Mi 14, On Thursday, June 18, 2009, Sophia Lafayette sent an email to Sandra Sanders, Barbara Byrd-Bennett’s executive assistant, and to Tracy Martin's personal email address ‘smaoyyardena@sbeglobal.net, with oc: to Barbara Byrd-Bennett, The subject line was “EW:Leaming Village Presentation.” The body of the email stated: “We have confirmed that Learning Village will come to Detroit next Tuesday for a presentation. 15. On Friday, June 19, 2009, Barbara Byrd-Bennett sent an email from her personal ‘email address, ozbyrdbennett@aol.com, to Sophia Lafayette, Sandra Sanders, and Tracy ‘Martin's personal email, tracyyardens@sboglobal net, with cc: to Barbara. Byrd- Bennety@detroitk12.org. The subject line was “Re:Leaming Village Presentation.” The body of the email stated: “Yes, the Regional Superintendents and the guy (Chris) from IT. Also have ‘someone tell Teresa about it. Thanks. BBB.” 16. On Monday, June 22, 2009, Tracy Martin sent an email from her personal email address, racyvandena@sboglobal.net, to Barbara Byrd-Bennett, Sherry Ulery's personal address, sherryju@sboglobal.net, and Sophia Lafayette. The subject line was “Action Required Checklist.” The body of the email stated: “All, Ihave reviewed my notes and took a stab at creating an ‘Action Required” list of critical issues, topics, projects, et. we discussed over the past week, We ean use this type of tool to help us keep track of everything. Please add any topicsCase: 1:15-mo-00124 Document #: 1 Filed: 02/27/15 Page 16 of 32 PagelD #30 1 forgot to include.” The attachment on this email js a Word document. On this Word document there is a hoader titled “Tasks.” One of the tasks on this list is “Learning Village.” 17, OnAngust 12, 2009, Joan Brown, a Program Associate in the DPS Office of Contacts and Procurement, sent an email to Tracy Martin with the subject “FWD:REP.” The body ofthe email tated: “Tracy, Please see attached RFP for Learning Village I forgot to copy you.” 18, On August 13,2009, Sophia Lafayette sent an email to Tracy Martin with the subject “Leaming Village.” The body ofthe email stated: “Hi Tracy, Please don’t forget to email se or send me any documents notes, eo. you would like me to review regarding Learning offering help implementing Learning Village, came on the same dey thatthe RFP was released. 19. On July 31,2009, two weeks before DPS issued the REP, John Winkler, Vice resident, National Enterprise Solutions at HIMH School Publishers, sent an email from ‘ohn Winkdler@hmhpub.com to Tracy Martin's personal email, tracyyardena@sbeptobal.net, and Sherry Ulery's personal email, sheryu@sbeelobalznet, with the subjest “LV and content proposals.” The body of the email stated: “Hello — pr our conversation sir inthe werk, attached are the updated proposals for Learning Village, Destination, Data Director, andthe content programs we have discussed. I wil bring printed copies of there with me Mondey. Iwill send a separate email with the Purchase Agreement forthe Leaning Village solution, Zohn.” 20, On Axigust 26, 2009, one week after the bids had been submited, Tracy Martin sent an em fom her personal emall, racwardens(@sboslobalne, to David Costs, Interim Chief Procurement Officer at DPS, withthe subject"FW:LV and content proposals.” The body of the email stated: “Per our conversation, see attached.” The attachments to this ‘email were the 6Case: 1:15-me-00124 Document #: 1 Filed: 02/27/15 Page 17 of 32 PagelD #:31 ‘materials that had been forwarded by John Winkler in the email described in paragraph 19, above, 21. On August 28, 2009, David Costa replied to Tracy Martin’s personal email, traowyandena@sboslobi.net, along with several other DPS officiel, with ac: to Barbara Byrd- Bennett. The body of the email stated: Tracy, May this email find you well, It seems that my efforts to save the District some money has become mare complicated than any value at this late hour. | apologize for that and hope that you know that | will do everything in my power to keep my promise to you that nothing | do will slow the speed of progress on this transaction or the delivery of needed ‘education materials to students. To that end, | have reviewed the Houghton Miffin Harcourt Standard Purchase Agreement against the attached files. ‘As | have shared with you earlier, because the purchase involves goods In excess of the statutory limits, it must be competitively bid. Also, because | understand that federal funds which will be Tite | funds wll bbe used to fund the purchase and because there are services Involved, the requirements of the Michigan Department of Education set forth in @ letter dated November 24, 2008 are triggered. The requirement states {hat all service contracts and involces should have clear and measurable deliverables or outcomes that go beyond time and attendance and measure direct impact on student achievement, improvement in the effectiveness and efficiency of the District or positive impact on the other Important objectives in the District. Further, the District is requiréd to Include in each such contract that should the contract fail to produce ‘results in measurable deliverables or outcomes within a defined timeframe, it shall be terminated. ‘The challenges with the current draft of the agreement are as follows: ‘A determination needs to be made regarding the source of funds so that wo may know whether the foregoing language needs to be added. 3) _ Regarding the competitive bidding process, do you have responses from HMH dated after the date of the RFP with price information waich adds up to the contract amount of $39,316,939. What you have provided me here are documents dated in May, June, and July. itis my understanding that the RFP process was conducted in August. 1Case: 1:15-mc-00124 Document #: 1 Filed: 02/27/15 Page 18 of 32 PagelD #:32 Please provide me with responses to 1-3 above so that | may prepare an ‘Agreement for Mr. Bobb's signature for Monday morning. 22, OnAugust29,2009, at331 pm, Leon Glaster, DPS Deputy Chief of Staff, replied to David Costa's email from his personal email address, leonglaster@sboglobal.net. The tbody of the email states: “David, All items (1-3 that you are requesting of Trecy have been satisfactorily completed, Could I suggest that you contact me directly as agreed to yesterday so the DPS students can have their textbooks on the first day of school (Sept. 8). Again, my ‘cellphone is 510-862-8842.” 23:~-- On August 29, 2009, at 4:04 pin: Leon Glaster sent arother reply 0 David Costa's email from his personal émail adress, leonglster@sbcelobal.net. The body of the email states: “David, This emails follow up to our recent phone conversation. We have agreed that have satisfactorily answered the three questions posed to Tracy Martin in your email, Since you will be out of the office until September th, 2009 [have relieved you ofthe responsibility of culminating this contract agreement for Ms. Bobb signature. I will work with Kevin White complete the contract and forward to Bob Boi for Mr. Bobb signeture on Monday morning 9 veo may insure timely delivery of the textbooks and learning materials for the DPS studens.” 2A, The contract between DPS and HMH was signed on September 3, 2009. 25, Ananalysis of bank accounts belonging to Barbara Byrd-Bennett shows a deposit into her Money Market account on July 20, 2009, inthe amount of $26,530.26 fom “Houghton ‘Mifflin Harcourt.” This is an ‘unusual financial transaction that ‘occurred approximately three weeks before the RFP was issued. Previous deposits to Barbara Byd-Bennett’s accounts from [Mi can be broken into two categories: payroll deposits and expense reimbursements, Payro 8(ase: 1:15-mc-00124 Document #: 1 Filed: 02/27/15 Page 19 of 32 PagelD #:33 posits went into a checking account, nd were sent fom “Houghton Mifin Payroll.” Expense reimbursement payments were made into the Money Market account, but were sent from “Harcourt Exp Remb." 26, Additional emails reveal thet Barbara Byrd-Bennet continued a relationship with HIME while she was employed by DPS. Emuils described in paragraphs 27 though 30, below, Show that John Winkle from FIM offered to supply Barbara Byrd-Bennet witha plane ticket ‘in January 2010, and that Barbera Byrd-Bennett still had an active HME email address, body ofthe email stated: “Tho $150 is only applied when changing in same class which was Couch. The new fare is pricing at $1317.40 for fist class from Washington to Atlanta ONLY. First clas i.not offered on the connestng flight from Atlanta to Miami Please advise me if you Still want to book.” Sandra Sanders sen. follow up email to ozbyrdbennett@sol.com that stated: “The travel agency called back to indicate that the fair (sic) would be $1073.90." 28 On January 11, 2010 Barbara Byrd-Bennett sent an email from her personal ‘address, ozbyrdbennett@aol.com to Sandra Sanders, ce: to John. Winkler@hmhpub.com, with the subject line “FWD:REVISED: New Fare - $1073.90." The body of the email stated: “Sandy. ‘Thank you. Iwill try imy dam best to get there and I must really reconsider. A middle seat which have is out ofthe question. Lam copying John only as information on this only asa point of information. Iam not asking him to do anything but I cannot afford $1000 plus to travel but Ican also not test the surgery and push myself... also cannot test the potential for the other leg/knee. I will decide by tomorrow. John, I will let you know. Barbara.” 9-me-00124 Document #: 1 Filed: 02/27/15 Page 20 of 32 PagelD #:34 29. On January 11, 2010 John Winkler of HMH sent en email to Barbara Byrd- Bennett, at Barbara Byrd-Bennett@mbpub.com, withthe subject line “RE:REVISED: New are - $1073.90." The body of the email sated: “Hi Barbara ~ Ijust spoke with Kristine. She is going to call Travel first thing in the AM so we can take care ofthe seats and we will cover it. really want to try to make itso you can get there.” 30, On January 12, 2010 Barbora Byrd-Bennett sont an email from her personal email, ozbyrdbennett@aol.com, to John. Winklen@hmhpub.com, ce: to Sandra Sanders and Kaistina Howd@harcoutt.com, withthe subject line “Re:REVISED:New Fare - $1073.90." The body ofthe eml stated: “Sohn, I totally appreciate this. You now ths isnot about ‘whatever's that would place me in a position I do not want forthe near future. (: Thanks s0 much, Sandy. 1 just need you to work with Kristina 90 Thave the confirmation number and other pertinent info before Thursday.” ‘31. Based solely on the email records that have received ftom DPS, I have analyzed the frequency with which Barbara Byrd-Bennett used her various email addresses to send email. rom May 1, 2009 through August 1, 2011, Barbara Byrd-Bennett sent the following mumber of emails from het two DPS email accounts: Bazbar byd-bonnett@at.blackberry.net— 743 emails; Barbara byid-bennet@dtroi2.0r8 15 emails, From May 1, 2009 through August 1, 2011, Barbara Byrd-Bennett sent atleast 4423 emails from gzbyrdbennets@aol.com, The above number of emails sent from ozbyrdbennett@aol.com is captured by analyzing only the four DPS email addresses Thave obtained, so the total number of emails sent from ogbyrdbennet@aok.com is unknown. 10Case: 1:15-me-00124 Document #: 1 Filed: 02/27/15 Page 21 of 32 PagelD #:35 32, Teisreasonabloto conclude that there are a much larger number of emails sent from and received by ozbyrdbennett@ao.com, and there is probable cause to believe that some “of those emails relate tothe transactions that ae the subject of this affidavit. 33, Basbara Byrd-Bennet left the employment of DPS in June 2011, On or about September 6, 2011, Barbara Byrd-Bennett was again ernpoyed by Houghton Min Harcourt as a Superintendent in Resdeney. Employee revords obtained from HIMH show that while employed at HM from 2006-2009, Barbara Byrd-Bennett was paid an annual salary of $154,357.68 for 37 hours per week, Her employment eter from HIME dated August 8 2011, offers an. (000, for 21 hours per week. The summary for her Superintendent Superintendent in Residency wil assist sales leadership in targeted urban districts to promote HMH products and services and increase revenue.” 44, Preservation leters for ozbnidbennett@aol,com have been sent to AOL. The lst one's dated February 11,2013. In general, an e-mail thats sent to an AOL subseiber is stored sn the subscriber's “mailbox” on AOL's servers until the subseriber deletes the e-mall, fhe subsoriber doesnot delete the message, the message can remain on AOL's servers indefinitely. ven if the subsiber deletes the e-mail t may continue to be available on AOL's servers for@ certain period of time, BACKGROUND CONCERNING E-MAIL, 435, _Inmay tuning and experience, Lnaveleamed that AOL. provies a variety of on line services, including electronic mail ‘e-mail”) access, tothe publi, AOT. slows subsoribers to obtain e-mail accounts atthe domain mame aol.com like the e-mail accoin! iste “attachment A. Subscribers obtain an account by registering with AOL. During the registration nprocess, AOL asks subseribers to provide basic personal information. Therefore, the computers of AOL are likely to contain stored electronic communications (including rétveved and umetrieved e-mail for AOL’s subscribers) and information concerning subscribers and their use ‘of AOL services, such as account access information, e-mail transaction information, and account application information, In my training and experience, such information may constitute ‘evidence of the crimes under investigation because the information can be used to identify the account's user or users. 36. An AOL subscriber can also store with the provider files in addition to emails, such as address books, contact or buddy list, calendar data, pictures (other than ones attached to e-mails), and other files, on servers maintained and/or owned by AOL. In my training and experience, evidence of who was using an e-mail account may be found in address books, contact or buddy ists, e-mail in the account, and atfachments to e-mails, including pictures and files. 37. Inmy training and experience, e-mail providers generally ask their subseribers to provide certain personal identifying information when registering for an e-mail account, Such information can include the subscriber's full name, physical address, telephone numbers and other identifiers alterative e-mail addresses, and, for paying subscribers, means and source of payment (including any credit or bank account number). In my training and experience, such information may constitute evidence of the crimes under investigation because the information can be used to identify the account’s user or users. 38, Inmy training and experience, e-mail providers typically retain certain transactional information about the creation and use ofeach account on thei systems, This information can include the date on which the account was created, the length of service, records 12Case: 1:15-me-00124 Document #: 1 Filed: 02/27/15 Page 23 of 32 PagelD #:37 of login (Le. session) times and durations, the types of service utilized, the status of the account (euch as loging nto the account via the provider's website), and other log files that reflect usage ‘ofthe account. In addition, e-mail providers often have records of the Internet Protocol address (IP address”) used to register the account and the IP addresses associated with particular logins tothe account, Because every device that connects to the Internet must use an TP address, IP address information can help to identify which computers or other devices were used to access the e-mail account, 39. Inmy training and experience, in some cases, e-mail socount users will ~éemimunicate directly with an e-mail service provider about Testes relating to the account, such as technical problems, billing inquiies, or complaints from other users, E-mail providers typically retain records about such communications, including records of contacts between the user and the provider's support services, as well records of any actions taken by the provider or ser asa result ofthe communications In my training and experience, such information may constitute evidence of the crimes under investigation because the information can be ‘used to identify the account's user of users. CONCLUSION 40, Based on the forgoing, I request thatthe Court issue the proposed search warrant ‘Because the warrant willbe served on AOL who will then compile the requested records at @ time convenient to it, there exists reasonable cause to permit the execution ofthe requested ‘warrant at any time in the day or night. 3Case: 1:15-me-00124 Document #: 1 Filed: 02/27/15 Page 24 of 32 PagelD #:38 mR. ING 41, further request thatthe Court order that all papers in support ofthis application, including the affidavit and search warrant, bo sealed until further order of the Court, These documents discuss an ongoing criminal investigation thet is neither public nor known to all of the targets of the investigation. Accordingly, thers is good cause to seal these documents because their premature disclosure may seriously jeopardize that investigation. Respectfully submitted, Toseph Richard Jensen — Spee Aen aaltisn et ‘Bureau of Investigation Subscribed and sworn to before me on MAR 2.5 2013 2013 RR. STEVEN WHALEN ‘Honorable R. Steven Whalen United States Magistrate Judge 14