UPDATE -- At the plea hearing, the defense made the following statement:
In addition, as part of this plea, we are herebyAnd the prosecutor made this statement:
withdrawing the motion to dismiss and/or disqualify the
prosecution team, and I make the following representations as
to the reasons why we are prepared to withdraw the motion:
I and my colleague, Rossana Arteaga-Gomez, we have met
with the Government since the last court session, and we make
the following statements in support of withdrawing the motion:
First, we know that the allegations in the motion to
dismiss regarding that the practice was a long-standing
practice over the last 10 years of the U.S. Attorney's Office
to receive CD roms with electronic copies of the defendant's
selected document request were based solely on the statements
and e-mails of the owner of the copy service, whose
credibility, at a minimum, has come into question during this
I, and Rossana Arteaga-Gomez, have met with the Chief
of the Criminal Division of the U.S. Attorney's Office, we've
met with the trial attorneys, who are the ones who informed us
of their results of their own internal investigation after
reviewing the matter, and neither Ms. Rossana Arteaga-Gomez or
I have any information, aside from the copy service, that the
U.S. Attorney's Office has ever engaged in any pervasive
practice or pattern of receiving copies of CD roms and
potential defense work product in criminal cases in this
Second, as I've stated on a number of occasions in open
court, but I reiterate again today, that the prosecutors in
this case, Mr. Hayes, Ms. Miller, they acted appropriately and
ethically by immediately disclosing to Rossana and myself that
the Government had received duplicate CDs from the copy service
of the materials selected for copying by the defense.
We have no information that these prosecutors ever
looked at the CDs or even knew that the CDs were being given to
the Government. I so stated before, and I reiterate that point
again. And, of course, we credit these prosecutors for
disclosing the issue to us.
And we finally note that the prosecutors in this case,
frankly, they've been the most forthcoming and responsive
prosecutors in providing discovery, in my experience, and it's
my hope that the U.S. Attorney's Office would adopt that
practice of providing early discovery to us, including FBI 302
reports, well in advance of trial.
And as a result of our satisfaction of the statements I
just made, we are hereby withdrawing the motion to dismiss or
THE COURT: Thank you very much.
Your Honor, I'd like to thank Mr. Srebnick
for his statement to the Court. I'd like to reiterate, defense
counsel's not agreeing with this, but that's not what the
Government's saying, but the Government's investigation to date
has indicated that copying of defense selections was not
pervasive practice in this United States Attorney's Office.
What was a practice was one copier. The copier in this
case would provide a copy of what was provided to the defense
to the Government on CD, and it's the Government's position
that he can't differentiate between what a defense selection is
and what regular discovery is.
Our investigation to date has revealed that any copying
of defense selections as part of the discovery process, which
is fluid and it changes case to case, was exceedingly rare; and
that the Government is not in the practice of surrepetitiously
copying defense selections, and that, in some cases, defense
lawyers knew that this copying was being done and in other
cases they did not.
In any case, the Government is aware of no cases where,
other than, unfortunately, this one, where these copies were
accessed by an agent or a lawyer otherwise and, thus, our
position is that this was not a regular and pervasive practice.
THE COURT: Thank you very much.