Friday, June 03, 2016

Has the government been using its copy service to spy on defense work product for the past 10 years?

Those are the allegations in this motion to dismiss filed by Howard Srebnick and Rossana Arteaga-Gomez in U.S. v. Schapiro before Judge Cooke. 

Those who practice in this District know that in large fraud cases, the government stores its documents at a facility in Miramar.  If you want to see or copy the documents, you need to go there.  The Schapiro defense alleges that it flagged documents for copying from the warehouse.  The copy service scanned those documents and gave the defense a CD, which included the documents, titles the defense assigned to those documents, and post-it notes on the documents.  Unbeknownst to the defense, the copy service would also give that CD with this material to government agents.  And the copy service has been doing this for 10 years.  From the motion:
Mr. Montero [the copy service guy] then stated that he had been providing to the U.S. Attorney’s Office for the past 10 years duplicate copies of the discovery documents selected by defense counsel in other cases. On that day, Mr. Montero forwarded to Ms. Arteaga-Gomez his April 21, 2016 email to Cori Weiss [the government paralegal] (discussed above). In the forwarded email, Mr. Montero writes:
Here is the email I sent the FBI and this practice has been one that has been going on since 2006 that both Xpediacopy my old company and Imaging Universe have provided the U.S.D.O.J. in the majority of the cases where the government was not paying for the discovery services or were paying for half of the services.
To the prosecutor's credit, he informed the defense of this when he found out about in this case.  But query why it took 10 years for any prosecutor or agent to speak up. 

Judge Cooke remarked at the initial status conference on the motion that if true, the conduct was "repulsive."  In fact, she issued an order asking the parties to address the following issue: "What remedies, if any, are available to the court were the court to find that the described conduct in Defendant Shapiro’s motion is a systemic, consistent and/or pervasive practice of or on behalf of the United States Attorney’s Office?"

The Government filed a 49-page response here in which it claims, no harm no foul and that this isn't really work-product.  It also makes the surprising claim that the defense has waived any claim because it either knew or should have known about this procedure.  Wow.

An evidentiary hearing has been scheduled for next week.  This is worth following.

Kudos to Dan Christensen from Broward Bulldog as the first to report on the story here, which will soon be national news.  From the intro:
In a stunning twist in a long-running Medicare fraud case, both the Miami U.S. Attorney’s office and the FBI stand accused of spying on a defendant’s lawyer by illegally and secretly obtaining copies of confidential defense documents.
Court papers filed last week by attorneys for Dr. Salo Schapiro contend the secret practice was not the action of “just one rogue agent or prosecutor.” Rather, it was apparently an “office-wide policy” of both the U.S. Attorney’s Office and the FBI that’s gone on for “at least 10 years.”
The unwritten policy involves “surreptitiously copying defense counsel’s work product through the government-contracted copy service that the government requires defense counsel to use to obtain the discovery documents’’ needed to properly prepare for trial, according to court papers that seek either the dismissal of Schapiro’s indictment or the disqualification of the entire prosecution team.


Anonymous said...

"What remedies, if any"?? I would recommend one very large hammer.

Anonymous said...

Years ago, during a trial before Judge Eaton, I ordered portions of government witness testimony to use for closing argument. The court reporter told me that the government ordered a copy. Judge Eaton ruled that was my work product- what I thought was important to the defense -and told the court reporter not to provide the copiews.

Anonymous said...

In the civil context, it is common on large document cases for each side to go to the other's office and tab those docs or files they want to have copied. If opposing counsel handled it in house, wouldn't opposing counsel "know" what documents were requested to be copied. Couldn't opposing counsel instruct its in house copier to make an extra set of copies or write down what you copied. I cant imagine the defense left substantive comments about the documents with the government. That is why the instruction is usually copy everything and then look through it at your own office on your own time.

Anonymous said...

anyone surprised by this? The government plays dirtier than most, and most judges look the other way because the see themselves as being on the same team as the US Attorney. Judge Cooke, however, actually expects the feds to play fair.