Pro tip for defendants -- do not text the undercover agent while he is testifying

Ooof.  That happened in Judge Bloom's courtroom this week, according to the Sun-Sentinel.  The defendant was then taken into custody:

South Florida jury convicted a California woman on Thursday of conspiring to send a $50 million missile-firing drone and jet fighter engines to China via Broward County.Wenxia Man, aka Wency, 45, of San Diego, was found guilty of conspiring to export military weapons, equipment and technical data to the People's Republic of China.
***
Authorities accused her of improperly sending text messages, in Chinese, to the federal agent who worked undercover on her case during a break in his testimony in her trial. The agent, from U.S. Immigration and Customs Enforcement/Homeland Security Investigations, reported the improper contact and U.S. District Judge Beth Bloom order Man taken into custody, according to court records.

Does anyone know what the text said?  Please email me if you have any further info! 

Annual CJA conference in Naples

It's that time of year again, when all of the CJA lawyers take the Alligator Alley adventure.  Hopefully there will be none of this during the drive.  Instead, lawyers will get the latest Johnson updates, schmooze with some judges, and get to bond.

While this is going on, Jose Baez will be preparing for the Aaron Hernandez case.

Fun times...

Evidentiary hearing today in Spy-gate (Updated)

UPDATE -- so the courtroom was packed this afternoon.  Every seat was taken.  (When that happens, shouldn't the security people move the interns/clerks to the jury box to make more room for the public.)  It was mostly prosecutors and interns/clerks in the audience.  

Only one witness was called today, Rossana Arteaga-Gomez, the lawyer for Mr. Schapiro who was in the warehouse with the documents.  After about 2 hours, the rest of the testimony was taken in camera without the line prosecutor so he wouldn't learn any of the work-product material that the agent is alleged to have learned from the copies provided to her.  

Hearing continued till Monday.  Not much to report on today.

I've gotten some push back from my prosecution friends for calling it Spy-gate (the Patriots probably didn't like it either).  What about Copy-gate instead?

Original Post:

We need a better name for the case (U.S. v. Schapiro)...

Background here on the defense's claims that the government has been spying on its work product for the past 10 years.  Judge Cooke will hear evidence this afternoon

In the meantime, the defense filed its reply last night.

Reply in Support of Sanctions

Rubio officially blocks Mary Barzee Flores

The Tampa Bay Times has this:

“Senator Rubio recently returned the blue slip for three judges to fill other vacancies throughout Florida, but he will not return the blue slip on Ms. Barzee Flores," spokeswoman Olivia Perez-Cubas said.
"Florida has very busy federal courts and Senator Rubio would like to see judicial vacancies filled promptly with consensus picks who can be swiftly confirmed in a period of divided government. During the Obama administration, there has been an unfortunate trend toward the judiciary playing a more active role in policy-making, which is why Senator Rubio would rather see a judgeship remain vacant than to fill it with the wrong person for a lifetime."

The Miami Herald did a longer story, with quotes from people in the community backing Mary:

 Barzee Flores’ supporters in the legal community — including Miami-Dade, state and national police organizations, as well as prominent former state and federal prosecutors on both sides of the political spectrum — say they are baffled by Rubio’s decision to block her confirmation hearing before the Senate Judiciary Committee.They noted that his reasoning, based on his office’s statement, was contradictory, evasive and reflective of the political divisiveness in the GOP-controlled Senate, which votes on the president’s judicial appointments.
“It’s unfortunate that Mary has apparently fallen victim to the extreme political partisanship that is plaguing federal judicial nominations,” said former U.S. Attorney Marcos Jimenez, who was appointed by President George W. Bush.
Jimenez, who had served on Bush’s legal team in Florida’s 2000 presidential election dispute with Democrat Al Gore, said Barzee Flores is “extremely qualified and would make a great judge.”
Last year, Jimenez joined four other former U.S. attorneys in Miami — Roberto Martinez, Thomas Scott, Guy Lewis and Jeffrey Sloman — in a letter supporting her confirmation to the Senate Judiciary Committee chairman, Sen. Charles Grassley, and a ranking member, Sen. Patrick Leahy.
“We know how important it is to have smart, fair, hard-working judges on the federal bench,” they wrote in March 2015. “Mary fits the bill.”
Their letter noted that three former U.S. attorneys in Miami who serve on Florida’s Federal Judicial Nominating Commission — Alex Acosta, Kendall Coffey and Dexter Lehtinen — recommended her to President Obama.

Really sucks.  I don't really get it either -- why back the person only to withhold the blue slip?

I guess the upside it that If HRC wins, Mary can be renominated.  And since Rubio's seat will also change, I wouldn't say this is over just yet.

Read more here: http://www.miamiherald.com/news/politics-government/article81786967.html#storylink=cpy

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.