Circuit Split
Despite virtually identical circumstances between this Second Circuit case and
that of Cordero-Rosario , a First Circuit case, the result is two opposing outcomes. It
is in the interest of fairness that this Court should rule on this matter in order to
give the circuits guidance to avoid diametrically opposed rulings in cases involving
virtually identical circumstances.

Attenuation Factors
Temporal Proximity: The Appeals Court cited "The long delay between the search and the
discovery of the CD" as a "Significant gap". However the proper measure of time should
be between Agent Mullen's and Det. Nagle's discussion of seized evidence with Condon
— despite being aware that said evidence was the subject of an upcoming Suppression
Hearing - and her mention of (and later production of) the CD.

Intervening Circumstances: The Appeals Court cited "Condon's unanticipated production
of the CD" as the intervening circumstance. This is directly conflicting with Agent
Mullen's credited testimony that he sought Condon — in part - because she might
provide "other potential victims, potential witnesses" which is exactly what she did
by providing the CD. This is further contested by credited testimony that Condon
provided the CD at "the end" of a 1 hour and 45 minute long interview and only after
Agent Mullen brought up and discussed seized evidence.

Flagrant Misconduct of the Official(s): With regards to the original search the
Appeals Court said it "cannot say that the officer's misconduct was insignificant" but
this overlooks Agent Mullen's continued misconduct when he chose to discuss evidence
that he knew was the subject of an upcoming suppression hearing with a person that he
believed could provide information on "other potential victims, potential witnesses"
in order to induce the cooperation of that person.

Finucan Factors
In Finucan two factors are articulated to provide guidance on this very issue;
(l) Absent the illegal search, would investigators have known the identity of all
third parties or what to ask, and (2) Whether those third parties would have come
forward on their own.

First Factor: Agent Mullen testified "well, he has a child", a fact revealed during
the interrogation, "we should speak to that child's mother", because "she'd be able to
shed some light on... other potential victims". Agent Mullen asked Condon "Who is
Tiffany Carrol?", the answer he already knew based on the interrogation and his
previous investigation of her and her daughter.

Second Factor: Condon possessed the CD for 13 years, 2% of which Asmodeo was being
prosecuted for charges similar to those of his later conviction, 1% of which Asmodeo
had been incarcerated on federal charges, she still did not seek out law enforcement,
and she only mentioned/provided the CD after agents first sought her out and then
chose to discuss evidence that was illegally seized with her.

Purpose of Condon's Interview
The Appeals Court "credited Nagle's and Mullen's testimony that they interviewed
Condon not to find evidence of Asmodeo's illegal activity" but ignored other credited
testimony by Mullen when he was asked (in substance) "absent the suppression hearing
would you have interviewed Condon anyway?", to which he replied "absolutely". .."We

Whether the attenuation doctrine applies when law enforcement officials deliberately discuss illegally seized evidence with a third party in order to induce their cooperation