One Weird Trick to Beat the Government in a Click-Fraud Case
How Simone Bertollini won the landmark case may shock you
Published in 2018 New Jersey Super Lawyers magazine on March 19, 2018
Simone Bertollini earned his J.D. in December 2010; the next year was a mad dash. The Italian national secured his status in the U.S. before his visa expired, passed the bar then scrambled to find a firm to sponsor him. Then he opened his own business and applied for an investor visa—all within a few months.
“I had to show the government that I had a lot of potential, based on my degrees in law school from Italy and here,” Bertollini says. “And they granted it. It was a very stressful period.”
By 2016, Bertollini was a naturalized citizen. He segued into immigration law when along came U.S. v. Gasperini.
Fabio Gasperini was a 34-year-old citizen of Rome who was extradited to the U.S. and charged with five felony charges related to “click fraud.” He was accused of directing a network of computer servers that defrauded advertising companies by using bots to fake human clicks on internet ads. Gasperini insisted he was innocent, but had trouble finding a lawyer.
“I asked [Gasperini] why he picked me, and he explained that he contacted all the Italian lawyers in New York, and some Italian-American lawyers, but they told him, ‘You have no chance,’” Bertollini says.
It was billed as the first click-fraud case to go to trial, and Gasperini faced up to 70 years in prison.
“I had handled several criminal cases, but never tried one—or even watched someone do it,” Bertollini says. “I thought we’d reach an agreement where the prosecution would knock out two or three counts and find reasonable accommodation. Gasperini was asking about a deal because everybody at the detention center said, ‘You can’t beat a federal case.’ He was really scared.”
The prosecution never introduced a deal, Bertollini says, and the trial lasted for months. “They called 25 witnesses. But in the end, they had very little evidence.”
A four-hour cross-examination of the government’s computer experts may have turned the case. “They didn’t expect that I’d be prepared on the forensic side because it’s extremely difficult to understand,” he says. “I went over every detail and there were big flaws in their analysis. It was clear they reached their conclusions by guessing. I knew the jury wouldn’t understand the technical stuff, but what I did was show them they weren’t sure 100 percent.”
The jury acquitted Gasperini of all five felony charges and found him guilty of a computer intrusion misdemeanor. While he’s happy about the felony acquittals, Bertollini is appealing the court’s maximum penalty for the misdemeanor: a year in jail, a $100,000 fine and supervised release.
“If I was in front of an impartial court, the case would have been thrown out,” Gasperini says. “For now, we’re focusing on the appeal to the Second Circuit. If it doesn’t go through, I’ll petition the Supreme Court.”
Another client of Bertollini’s fled Russia in 2014—“He was persecuted for political reasons”—and came to the U.S. to apply for asylum. Instead, he was jailed without bond.
“It’s a big deal because it involves the detention of anyone in this country illegally. Even people with serious criminal records are entitled to be released after six months or a year if the government can’t prove they’re dangerous,” Bertollini says. “And here we have someone without a criminal record being held for 18 months without justification. I like these kinds of cases because they’re challenging and can potentially help a lot of people.”