On October 3, 2016, only six weeks prior to the scheduled trial date, the government executed a post-indictment search warrant at a location that the prosecution team knew was being used exclusively by the defense team as a satellite law office or litigation “war room” for trial preparation. Even after defense counsel cautioned the prosecutor that she was jeopardizing the integrity of the prosecution by invading the defense camp, she nevertheless directed government agents to proceed onward. Refusing to provide the defendants or their attorneys a copy of the warrant, agents entered the space, seized and boxed up documents and electronic data that the defense team had itself generated and was reviewing and using to prepare for trial. In effect, the post-indictment search stripped the defense naked and paralyzed a significant component of the defense.I mean, this is getting ridiculous already. Let's see how this plays out.
Perhaps more troubling, government agents became exposed to substantial defense work product, including records that revealed defense strategies. Government agents observed which documents were deemed relevant by defense counsel and consultants. Government agents observed how the defense was preparing for trial. The government’s decision to utilize a search warrant to circumvent discovery and trial procedures contemplated by the rules of criminal procedure – see, e.g., Rules 16 and 17, Fed. R. Crim. P. – resulted in a quagmire of its own creation.
This unprecedented post-indictment invasion of the defense camp, which has disrupted trial preparation and given the government access to insider information about defense strategy, warrants dismissal of the Superseding Indictment. Alternatively, the Court should, at a minimum, a) suppress and order the return of all records seized; b) disqualify the prosecution team from further participation in this case; c) prohibit the government’s review of any materials until a procedure for determining privilege is established; and d) order other and further relief that may be appropriate after an evidentiary hearing.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Monday, October 24, 2016
More intrusions into the defense camp
This time, the case is before Judge Scola. But it's another Howard Srebnick case involving the DOJ Fraud section from DC. (You remember the last time this issue came up with the copy service). This time the government allegedly searched a defense team's war room. Srebnick's 32-page motion is here. The introduction summarizes truly outrageous conduct:
Wow! Who is the genius AUSA?
ReplyDeleteThis should not end well for the prosecution. Really, why would you execute a post-indictment search warrant?? I bet that affidavit supporting it did not disclose to the Magistrate Judge they were raiding a "satellite law office" or "litigation war room".
ReplyDeleteYou left out that the defense war room was previously the medical office where the defendants allegedly committed the fraud. Still shocking actions by DOJ.
ReplyDeleteMe thinks Judge Scola will no likey likey. I am giving even odds that he dismisses the case, 1-2 that the pros team is disqualified, and 1-5 that at some point he says "what were you thinking?"
ReplyDeleteI think that there is only one Judge is this district who would have put up with this nonsense and her last name does not start with an "S".
ReplyDeleteMemo to prosecutors:
ReplyDeleteBefore executing warrant at defense attorney's war room....please speak to supervisor.
Note:
It is not okay to make up for lack of discovery in criminal prosecutions with an abuse of the Fourth Amedment.
Recommendation:
Apologize and figure out a way to mitigate the wrong.
Trump responds:
ReplyDelete"Crooked DOJ". "In Hilary's pocket". "Sad". "Can't win playing by the rules. Rigged!"
at 2:28pm, true it was previously the medical office, but according to the motion, the prosecution "knew" it was a "satellite law office" and "litigation war room". Knowing that, they still went forward with the search. Amazing.
ReplyDeleteDid defense purposely choose the medical office for their 'war room' just to set this up? Don't they have offices for stuff like that? I'd be curious to hear both sides of the story. Maybe I'm alone on that one...
ReplyDeleteDid they also attempt to "deputize" witnesses by calling them paralegals and hire them to work for the defense? That would be, um, interesting ...
ReplyDelete