Fight Over Barrett Brown Continuance and Gag Order

Case 3:12-cr-00317-L Document 81 Filed 08/07/13
Page 1 of 13 PageID 307
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ___________________________________________ UNITED STATES OF AMERICA v. BARRETT LANCASTER BROWN ' ' ' ' '
No. 3:12-CR-317-L No. 3:12-CR-413-L No. 3:13-CR-030-L
GOVERNMENTS OPPOSITION TO CONTINUANCE
1.
The United States Attorney for the Northern District of Texas, by and through the
undersigned Assistant United States Attorney, files its opposition to the continuance requested by the defense. BROWNS POSITION SUMMARIZED 2. Brown complains that he has been unable to prepare for a September 2013 trial due
to the volume of discovery. Brown requests the trials be continued until February 2014. GOVERNMENTS POSITION SUMMARIZED 3. The government requests that this Honorable Court deny Browns motion for a
continuance. Browns cases have not been deemed complex, and therefore Browns right to a speedy trial is at issue. Brown failed to address Browns right to or waiver of a speedy trial. 4. The defense has had adequate time to prepare for trial. Brown has had the bulk of
discovery for at least seven (7) months, since approximately February 1, 2013. Browns
Government's Opposition to Continuance
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attorney failed to explain why seven (7) months was insufficient in a non-complex case to prepare for trial. 5. Knowing that the trials were set in September 2013, the new defense team accepted
representation of Brown on May 1, 2013, and stated to the United States Magistrate Judge that they were confident that [they would] be able to get up to speed and anticipate[d] trying the case on time. 6. Brown now requests a trial date in February 2013. The undersigned is unavailable
in February 2013 to try these cases. If the Court deems a continuance necessary and appropriate in light of Browns right to a speedy trial, the government requests, in the alternative, that the following weeks be considered when setting these matters for trial: March 10, 2014 March 17, 2014 April 28, 2014 Any week in May 2014 7. The undersigned conferred with the defense, and they have no conflicts on these
dates. The government estimates that its case in chief in the 3:12-317-L trial should last no more than three days. The government estimates that its case in chief in the second trial (3:12-413-L and 3:13-CR-030-L) should last no more than eight days. The government will file a list of its conflicts in camera. SPEEDY TRIAL 8. A defendants trial must commence within 70 days of the date the indictment was
filed, or from the defendants initial appearance, whichever is later. See 18 U.S.C.
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3161(c)(1). Browns cases have not been declared complex, nor has any party moved to declare the cases complex. Therefore the Speedy Trial exclusions pursuant to 18 U.S.C. 3161(h)(7)(B)(ii) do not apply. Per 18 U.S.C. 3161(h)(1)(B), the delays associated
with respect to other charges against the defendant were excluded from this 70 day period (i.e. the Indictments returned in 3:12-CR-413-L and 3:13-CR-030-L). 9. Per 18 U.S.C. 3161(h)(1)(A) the time during which Browns mental capabilities
were being examined were excluded from this 70 days. The competency hearing in 3:12-CR-317-L was held on January 30, 2013, and the courts order finding Brown competent to stand trial was filed on February 4, 2013 (Document 30). The government contends that Browns speedy trial clock did not start to run until February 4, 2013. 10. Any delay resulting from pretrial motions, or from any proceeding concerning the
defendant that is actually under advisement by the court is excluded from the 70 day period. See 18 U.S.C. 3161(h)(1)(D) and (H). Per the docket in 3:12-CR-317-L, the following motions and/or actions occurred: a. 2/13/2013 Governments Motion (Document 34). (2/4 through 2/13 = 9 days) Court denied the motion without prejudice on 3/29/2013 (Document 41) but ordered a review of the matter, and later referred the matter to the Magistrate Court (see e. below). The Magistrate Court orally denied the Motion on May 1, 2013, but did not issue the Order until May 30, 2013 (Document 64). (106 days tolled). b. 2/26/2013 Governments Motion for Reciprocal Discovery (Document 37). The Motion is pending a resolution.
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c. 2/26/2013 Governments Motion Under Fed. R. Crim. P. 12.2 (Document 38). The Motion is pending a resolution. d. 3/4/2013 Defendants Unopposed Motion to Continue Trial from May 6, 2013 to August 2013 (Document 40). Court granted on March 6, 2013, and set trials for September 3, 2013 and September 23, 2013. e. 4/16/2013 Court remanded matter to Magistrate Judge Stickney to determine Browns need for appointed counsel. Magistrate Judge Stickney set matter for status conference on May 1, 2013, and ultimately issued an order on May 30, 2013. (see a. above). f. 5/1/2013 Defendants Motion to Substitute Counsel (Document 56 and 57). Court granted Motion on May 7, 2013 (Document 63). (6 days tolled). g. 6/18/2013 Governments Motion for a Protective Order (Document 65). Court granted Motion on 6/20/2013 (Document 66). (2 days tolled). h. 6/21/2013 Defendants Motion to Continue Deadlines Court granted Motion on 7/3/2013 (Document 68). (12 days tolled). i. 7/9/2013 Governments Motion (Document 69).
Court granted Motion on 7/9/2013 (Document 70). (0 days tolled). j. 7/12/2013 Government Motion (Document 41). Court granted Motion on 7/15/2013 (Document 72). (3 days tolled). k. 7/16/2013 Governments Motion (Document 73). Court granted Motion on 7/17/2013 (Document 72). (1 day tolled). l. 7/19/2013 Defendants Motion (Document 75).
Government's Opposition to Continuance Page 4
Court granted Motion on 7/22/2013 (Document 76). (3 days tolled). m. 7/31/2013 Defendants Motion to Continue Trial (Document The Motion is pending a resolution. 11.
Date Feb. 4, 2013
The government summarizes its interpretation of Browns speedy trial issue:

Action see 9. Speedy Trial clock begins to run Court finds Brown competent see 10(a) and (e) Governments Motion is not resolved fully until the Magistrate Court issues its order on May 30, 2013 see 10(b). 106 days Days Tolled Days Run Total Days Run
Feb. 13, 2013
9 days Since these motions are still pending, the clock may be tolled indefinitely. If not tolled indefinitely due to 10(b), 2 days If not tolled indefinitely due to 10(b), 12 days 1 day
9 days
Feb. 26, 2013
June 18, 2013 June 20, 2013 June 21, 2013 July 3, 2013
see 10(g). see 10(h).
*19 days 28 days
29 days
July 12, 2013 July 15, 2013
see 10(j).
If not tolled indefinitely due to 10(b), 3 days 9 days 38 days
July 16, 2013 July 17, 2013
see 10(k).
If not tolled indefinitely due to 10(b), 1 day 1 day 39 days
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Date July 19, 2013 July 22, 2013
Action see 10(l).
Days Tolled If not tolled indefinitely due to 10(b), 3 days
Days Run
Total Days Run
2 days July 31, 2013 see 10(m). Pending
41 days 50 days (as of July 31, 2013)
9 days
*For purposes of this chart, the government began counting from May 30, 2013. 12. If the Court grants Browns motion to continue the trial dates, the government
requests that this Court find that only 9 days have elapsed on the Speedy Trial Act, that being the length of time between this court finding Brown competent to stand trial and the date the government filed its pretrial motions which are still pending. In the alternative, the government requests that this Court (1) require Brown to waive his rights to a speedy trial, and (2) make appropriate findings pursuant to 18 U.S.C. 3161. BROWN FAILS TO WAIVE HIS RIGHT TO A SPEEDY TRIAL 13. Browns cases have not been deemed complex. In his motion, Brown has not
produced or articulated his waiver of his speedy trial rights. INACCURACIES IN BROWNS MOTION 14. In his motion, Brown identified four categories of discovery: (1) the 2 Terabyte
hard drive containing most of the data from the electronic devices seized during the search warrants at Browns and his mothers residence, (2) DVDs containing digital evidence (either obtained digitally from the source of the data or by scanning from paper
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documents), (3) the search warrant documents, and (4) the transcript of a court proceeding (Browns initial appearance, probable cause, and detention hearing). 1 15. The government produced item #2 to the defense in January 2013 and #1 to the
defense on February 1, 2013. The government understands its obligation to continue to produce any newly obtained items obtained during its preparation for trial. The search warrant documents (Item #3), while discoverable, did not constitute evidence as is commonly associated with discovery. The government produced the seven search 2 warrants in a timely manner for the defense to review. The production of the search warrant documents also constituted an early production of Jencks. Item #4 is not an item of discovery. (See 16). 16. Brown wrongfully claimed that the initial appearance, probable cause, and
detention hearing transcript (Item #4) is a category of discovery. Brown wrongfully stated that it was the governments obligation to provide him a copy of a transcript of a court proceeding that had not yet been transcribed. Brown is wrong on both points. Brown and his prior attorney of record were present and participated at the initial appearance, probable cause, and detention hearing. If Brown wanted the transcript of a court proceeding, it was his responsibility to order the same from the court. In this case the proceedings were sealed, but Brown had the ability and responsibility to file a motion
The defense failed to identify other already items produced by the government, including but not limited, to all the forensic reports, the chain of custody documents, Browns statements, Browns criminal history, the recorded jail calls from Mansfield and FCI Fort Worth, Browns emails from FCI Fort Worth, and visitation records. 2 The seven search warrants related to the searches of 2 different physical locations and two different sources of data. The affidavits for the search warrants contained substantially the same information.
1 Government's Opposition to Continuance Page 7
to unseal and transcribe the proceedings, if he wanted a transcript. Since the hearing date (September 13, 2012) to the filing date of his motion (July 31, 2013), Brown failed to exercise due diligence and failed to order the transcript from the Magistrate Judges court. 17. If the government had such a transcript, it would normally turn over the transcript to
the defense pursuant to Jencks, and that production would not happen until a day before the witness testified pursuant to local practice. In this case, the government did what the defense could have done, it submitted a request for the transcript to be conditionally unsealed and transcribed. However, the government has agreed to assist the defense and produce this particular Jencks material early; that is, to provide a copy of its transcript to the defense, once the same has been transcribed and delivered to the undersigned. DISCOVERY AND DUE DILIGENCE 18. The defense contends in its motion that they are preparing for this case with due
diligence. The government disagrees. The current defense team failed to consult with the undersigned prior to agreeing to represent Brown. It has been the undersigneds experience that defense counsel commonly confer with the prosecution to ascertain the amount of discovery expected in the case. 19. The current defense team has not meet in person with the prosecution team to
discuss the discovery, the cases, or the upcoming trials. It has been the undersigneds experience that defense counsel commonly meet in person on numerous occasions with the
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prosecution to facilitate the discovery process. The undersigned has extended numerous invitations to the defense to meet with them regarding the discovery and upcoming trials. 3 20. The bulk of the discovery was in the possession of the prior defense counsel since
approximately February 1, 2013. Browns new defense team has been representing Brown since the hearing on May 1, 2013. In his motion, the new defense team did not retrieve Browns file from the prior attorney until sometime in June 2013. 21. The current defense team describes the discovery in Browns cases as substantial.
While the 2 Terabyte hard drive contains a substantial amount of data (i.e. less than 2 Terabytes), it pales in comparison to other more complex cases tried in this district with hundreds of Terabytes of data. PUBLICITY 22. Further delays in the trial date will allow the defense to continue to defy the United
States Magistrate Judges admonishment on May 1, 2013, that being not to try the case in the media. The government is aware of dozens of instances (before and after the admonishment) wherein Brown has or others on his behalf have solicited the services of the media or media-types to discuss his cases. Since May 1, 2013, the government has reason to believe that Browns attorney coordinates and/or approves the use of the media. Most of the publicity about Brown thus far contain gross fabrications and substantially false recitations of facts and law which may harm both the government and the defense
3 Browns prior counsel and forensic examiner met with the government in February 2013, to discuss the evidence contained in the 2 Terabyte hard drive. Government's Opposition to Continuance Page 9
during jury selection. The following are a few examples of the defense-solicited/encouraged publicity. 23. On March 7, 2013, from the Mansfield Jail, Brown telephoned a person with
Vice.com on several occasions, wherein the person interviewed Brown regarding his case and Project PM. The article was made public on March 26, 2013 at vice.com. 24. In March 2013, from the Mansfield Jail, Brown telephoned a person with The
Guardian, wherein the person interviewed Brown regarding his case. The article was made public on March 21, 2013. 25. In April 2013, Brown had numerous conversations with an individual who wanted
to do a documentary on Brown and Project PM. In June 2013 and July 2013, the documentary was being worked on, but has yet to be made public. 26. On May 3, 2013, the self-proclaimed founder and director of the website
www.freebarrettbrown.org told Brown on the telephone that he coordinated all media through Browns legal counsel. He told Brown that RT America requested to do a program about Brown, and there were inquiries from dallasnews.com. Brown confirmed that he and his attorney have a media strategy, and acknowledged that the attorney will be reviewing the possibility of a documentary. Browns friend produced and made public two articles about Brown and his criminal cases, one on July 13, 2013 and the other on July 31, 2013.
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27.
Browns friend confirmed in a statement to the press (posted on August 7, 2013)
that Browns lawyers had discussions with a specific media person to arrange an in-person interview with Brown at the jail. 28. On June 6, 2013, Brown told a person from the Rolling Stone to do a story on
Brown, and instructed the person to coordinate with his attorney. 29. During July 2013 and August 2013, Brown discussed with other persons the
probability of Esquire, Rolling Stone, and/or Vice making certain articles public. Brown commented that his attorney was involved. 30. Between May 1, 2013 and current date, part of the media strategy included
soliciting comments from journalists, authors, and other high profile individuals to comment publically about Browns criminal charges, said public comments being posted at http://freebarrettbrown.org/supporters/. 31. Several times a week since his incarceration, Brown requested another person to
search the Internet for Browns name and to tell Brown what comments had been made about him or articles had been written about him. Brown also requested that the person access Twitter.com and tell Brown how many times those commentaries or articles had been retweeted. 32. Brown has shown his intent to continue to manipulate the public through press and
social media comments, in defiance of the admonishment by the United States Magistrate Judge. Based on the articles already published, there is a substantial likelihood that extrajudicial commentary made by or condoned by the defense will undermine a fair
Government's Opposition to Continuance Page 11
trial. United States v. Brown, 218 F.3d 415, 428 (5th Cir. 2000). Whether or not the trial is continued, the government requests this Honorable Court to instruct the parties to refrain from making any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record. United States v. Hill, 420 Fed.Appx. 407, 410 (5th Cir. 2011), United States v. Davis, 904 F.Supp 564 565 (E.D.La. 1995).4 CONCLUSION 33. The government respectfully requests that this Honorable Court deny the defenses
second motion to continue the trial date; or in the alternative, after (1) finding good cause for the continuance, (2) finding that the speedy trial act will accommodate a continuance, and (3) restricting the parties use of the media, continue the trial to the weeks of March 10, 2014, March 17, 2014, April 28, 2014, or any week in May 2014. Respectfully submitted, SARAH R. SALDAA UNITED STATES ATTORNEY S/ Candina S. Heath CANDINA S. HEATH Assistant United States Attorney State of Texas Bar No. 09347450 1100 Commerce Street, 3rd Floor Dallas, Texas 75242 Tel: 214.659.8600 Fax: 214.767.2846 candina.heath@usdoj.gov
4 Upon request, the government can provide to the Court more detail on the above examples, as well as additional examples. Government's Opposition to Continuance Page 12
CERTIFICATE OF SERVICE I hereby certify that on August 7, 2013, I electronically filed the foregoing document with the clerk for the U.S. District Court, Northern District of Texas, using the electronic case filing (ECF) system of the court. The ECF system sent a "Notice of Electronic Filing" to Browns attorneys of record Ahmed Ghappour, Charles Swift, and Marlo Cadeddu, who consented in writing to accept this Notice as service of this document by electronic means. S/ Candina S. Heath CANDINA S. HEATH Assistant United States Attorney
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ________________________________ UNITED STATES OF AMERICA v. BARRETT LANCASTER BROWN No: 3:12-CR-317-L No: 3:12-CR-413-L No: 3:13-CR-030-L
MOTION FOR LEAVE TO REPLY TO GOVERNMENTS RESPONSE BARRETT LANCASTER BROWN, through his counsel, pursuant to L.Cr.R.47.1(f), respectfully request leave to file replies in support of the following motions: 1. Defendants Motion to Continue Trial and Pretrial Deadlines. 3:12-CR-317-L, Dkt. 80. 2. Defendants Motion to Continue Trial and Pretrial Deadlines. 3:12-CR-413-L, Dkt. 43. 3. Defendants Motion to Continue Trial and Pretrial Deadlines. 3:13-CR-030-L, Dkt. 43. Counsel have received and reviewed the Governments responses to these motions and seek leave to reply to the arguments therein as the Governments responses (1) introduce a new issue; (2) rely on case law that is distinguishable from the present case, and (3) are predicated on inaccurate assumptions which the defendants must explain in order for this Court to fairly rule on the issues raised in their motions. CONCLUSION For the reasons set forth above, the Defendant respectfully request that the Court grant the defendants motion for leave to file the above replies.
Respectfully submitted, -s- Ahmed Ghappour .
AHMED GHAPPOUR Pro Hac Vice Civil Rights Clinic University of Texas School of Law 727 East Dean Keeton St. Austin, TX 78705 415-598-8508 512-232-0900 (facsimile) aghappour@law.utexas.edu CHARLES SWIFT Pro Hac Vice Swift & McDonald, P.S. 1809 Seventh Avenue, Suite 1108 Seattle, WA 98101 206-441-3377 206-224-9908 (facsimile) cswift@prolegaldefense.com MARLO P. CADEDDU TX State Bar No. 24028839 Law Office of Marlo P. Cadeddu, P.C. 3232 McKinney Ave., Suite 700 Dallas, TX 75204 214.744.3000 214.744.3015 (facsimile) mc@marlocadeddu.com Attorneys for Barrett Lancaster Brown CERTIFICATE OF CONFERENCE I certify that on August 8, 2013, I conferred with Ms. Candina Heath, counsel for the government and she is in agreement with the relief requested. /s/ Ahmed Ghappour AHMED GHAPPOUR /s/ Charles Swift CHARLES SWIFT /s/ Marlo P. Cadeddu MARLO P. CADEDDU Attorneys for Barrett Brown
CERTIFICATE OF SERVICE I certify that today, August 8, 2013, I filed the instant motion using the Northern District of Texass electronic filing system (ECF) which will send a notice of filing to all counsel of record. /s/ Ahmed Ghappour AHMED GHAPPOUR /s/ Charles Swift CHARLES SWIFT /s/ Marlo P. Cadeddu MARLO P. CADEDDU Attorneys for Barrett Lancaster Brown
Case 3:12-cr-00317-L Document 82-1 Filed 08/08/13
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ________________________________ UNITED STATES OF AMERICA v. BARRETT LANCASTER BROWN No: 3:12-CR-317-L No: 3:12-CR-413-L No: 3:13-CR-030-L
REPLY TO GOVERNMENTS RESPONSE IN OPPOSITION TO MOTION TO CONTINUE TRIAL AND PRETRIAL DEADLINES BARRETT LANCASTER BROWN, through his counsel, respectfully submits this memorandum in Reply to the governments Response in Opposition to his Motion to Continue Trial and Pretrial Deadlines. INTRODUCTION Defendant Barrett Lancaster Brown moved to continue trial and pretrial deadlines on July 31, 2013 explaining that more time is required in order to adequately prepare his defense in light of the ongoing forensic processing of the Electronic Stored Information (ESI) images. The government opposed on August 8, 2013, and, in its Opposition requested the Court issue a Gag Order to [i]nstruct the parties to refrain from making any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record. GB at 12. For the reasons articulated in Points I and II, below, the Court should grant Mr. Browns continuance and deny the Governments request.
I. THE COURT SHOULD GRANT THE CONTINUANCE A. A Continuance is Needed in Order to Process and Review Forensic Evidence. As stated in Mr. Browns motion, the basis of Mr. Browns request for a continuance is that more time is required by the forensic vendor in order to adequately prepare the Electronic Stored Information (ESI) images for attorney review. The ESI images contain, inter alia, data from Mr. Browns laptops, which are directly relevant to all charges in all indictments, in addition to being at the center of conduct charged in the 12:CR:413 and 13:CR:030 Indictments. Thus, Mr. Brown cannot prepare for trial without reviewing the content of the ESI images still being processed.1. However, Mr. Brown cannot access the content of the ESI images, let alone conduct a meaningful review, until processing is complete. As stated in the moving papers, the forensic vendor estimates that processing the ESI images will take an additional two months time. Given the amount of material, simply having the material ready for review, does not mean that it has been reviewed. As previously indicated, counsel estimates one month of review from completion of the processing. There is no reason to believe that substitution of counsel has delayed this case significantly, if at all. When counsel entered the case on May 1, 2013, the ESI images were still being processed by the FPD Investigator, who indicated repeated delays in the ESI processing
1 While the government is correct that the size of the ESI in this case pales in comparison to other more complex cases tried in this district with hundreds of Terabytes of data, GB at 9, that does not change the fact that undersigned counsel cannot prepare for trial without reviewing the ESI. 2
due to viruses and malware present within the medium, in addition to time constraints caused by the furlough.2 As stated in Mr. Browns motion, counsel for the defendant has worked diligently to prepare for trial. The government disagrees, arguing that [t]he bulk of the discovery was in the possession of the prior defense counsel since approximately February 1, 2013, and the new defense team did not retrieve Browns file from the prior attorney until sometime in June 2013. To be clear, counsel conferred with the Office of the Federal Public Defender (FPD) prior to, and on, May 1, 2013, and requested the discovery materials in their possession. The defense has diligently catalogued the discovery received in June of 2013, and continues to review that which is accessible. As noted, simply because the ESI images have been received does not mean that they can be accessed. The ESI images must be processed by a forensics expert before counsel can conduct a meaningful review. Simply put, the defense cannot review the bulk of the discovery until it has been processed. The government also argues that the current defense team has not meet [SIC] in person with the prosecution team to discuss the discovery, the cases, or the upcoming trials, GB at 8 (emphasis added). To the contrary, counsel for Mr. Brown has conferred, corresponded and had telephonic meetings with the government on numerous occasions regarding various case issues, including discovery and other pretrial issues. For instance, on June 25, 2013, counsel emailed the government indicating that he had received discovery from the FPD, that he had catalogued the files that were in an accessible format, and requested the search warrants and related affidavits in this case. Again, on July 1, 2013 counsel sent the government a discovery letter. See Defense Motion to Continue, Ex. A. As noted, the government did not reply to that letter 2 As noted by Magistrate Stickney, counsels acceptance of this case has relieved the public of a significant financial burden. 3
until July 12, 2013, and did not produce the search warrants until July 15, 2013. Between July 15, 2013, and the filing date of the motion at issue, July 31, 2013, the defense has exchanged several emails and telephone calls with the government. Undersigned counsel welcomes the opportunity to meet government counsel in person and negotiate additional pre-trial issues, once discovery review is completed. Finally, no prejudice will result to the government by continuing this trial. In addition, the government continues to provide discovery, the most recent batch of which was received between July 29-31, and contained electronic data. B. Speedy Trial The governments Opposition states Brown failed to address Browns right to or waiver of a speedy trial. As addressed in the moving papers, a district court may continue a case when: the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), [but] would . . . deny counsel for the defendant or the attorney for the government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence. 18 U.S.C. 3161(h)(8)(B)(iv). The government argues that Browns attorney failed to explain why seven months was insufficient to in a non-complex case to prepare for trial Id. at 1-2. In fact, as articulated above, and in the moving papers, the defense has worked diligently since appearing in the case three months ago. The hurdle faced by the defense at this juncture does not pertain to their review of the discovery, rather the processing time required in order to make the ESI images accessible for review. As such, the Speedy Trial Act provides the basis to exempt the case from the Acts time limitations in order to allow defense counsel to adequately prepare the defense. Alternatively, Mr. Brown waives his speedy trial rights. Counsel has confirmed his waiver orally, and intends on submitting a signed waiver by August 20, 2013.
II. THE COURT SHOULD DENY THE GOVERNMENTS REQUEST FOR A GAG ORDER Mr. Browns Motion to Continue is not in any way related to the governments implication that he intends to use the expanded time in order to try the case in the media, nor does the evidence reflect as much.3 Upon entry into the case, counsel has advised Mr. Brown that making statements about the charges he faces is not in his best interests. Counsel has also advised Mr. Brown as to the Courts Protective Order, in addition to the guidelines imposed by Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), and its progeny, including United States v. Brown, 218 F.3d 415, 430 (5th Cir. 2000). Mr. Brown has complied. As such, a gag order is not warranted in this case, for several reasons. First, as detailed below, Mr. Brown has made no statements to the media since undersigned counsel appeared on the case. Second, Mr. Browns counsel have not made any statements to the media, except to state matters of public record or to explain the steps of the legal process. Third, although Mr. Browns purported associates may be making statements about this case, those statements were not attributed to (and, at least as of May 1, 2013, are not properly attributable to) Mr. Brown. Mr. Brown and his counsel are well aware of the importance of maintaining a large potential jury pool in the Northern District of Texas, and at least since May 1, 2013, neither Mr. Brown nor his counsel have engaged in any acts that could even arguably be characterized as effectively 3 At the outset, counsel objects to the governments use of a Response in Opposition to request a gag order from the Court, noting that the government has not conferred with counsel. To the extent the Court is inclined to grant the governments cross-motion, the Defense would request an opportunity to fully brief the matter. 5
undermining or interfering with the selection of impartial jury members. Therefore, the governments request for a gag order should be flatly rejected as unwarranted. The cases cited by the government all included statements regarding the specific evidence in the case. See United States v. Hill, 420 F. App'x 407, 412 (5th Cir. 2011) (defendant referenced a clear statistical and anecdotal body of evidence); Brown, 218 F.3d at 429 (defendants released wiretap recordings to press and participated in extensive interviews about the same). By contrast, the government does not cite any statements as the basis for their request for a gag order. Rather, the government admonishes the defense for condoning media coverage of Mr. Brown, GB at 11, and argues that the defense coordinates and/or approves of the use of the media. GB at 9. In support, the government recites a number of interviews granted by Mr. Brown before undersigned counsel entered the case,4 GB at 10 ( 23, 24), and a series of allegations that are irrelevant and do not merit a gag order. For instance, the government states that Browns friend confirmed in a statement to the press (posted on August 7, 2013) that lawyers had discussions with a specific media person to arrange an in-person interview with Brown in jail. GB at 11 (27). Presumably, the specific media person referenced by the government is Michael Hastings, a journalist, friend and colleague of Mr. Brown who passed away on June 18, 2013 in Los Angeles California. Counsel does not dispute that Mr. Hastings, as with many other members of the media, contacted counsel seeking an in-person interview with Mr. Brown. To counsels knowledge, Mr. Hastings did not visit or conduct an in-person interview Mr. Brown before his death. The government also references numerous conversations in April 2013 between Mr. Brown and an individual who wanted to do a documentary on Brown. GB at 10 (25). 4 The government does not recite statements made by Mr. Brown in these interviews that it claims are in violation of Gentile, Brown, et al. 6
Counsel has received numerous requests from members of the media, including documentary filmmakers, to interview Mr. Brown. Counsel has advised members of the media seeking an inperson interview with Mr. Brown that there is a Protective Order in place, that members of the media would need authorization from all the relevant parties including the authorities at Mansfield Correctional, and that Mr. Brown would be advised not to answer any questions unless submitted in advance, and in writing, so that counsel could screen questions to comply with the Courts Protective Order, Gentile, Brown, et al. After being advised of these conditions, no media outlet has conducted an in-person or telephonic interview with Mr. Brown that counsel is aware of.5 One media outlet, Rolling Stone magazine, has complied with counsels conditions and received comments by Mr. Brown that were well within the standards set forth in Gentile, Brown, et al. Additionally, counsel for Mr. Brown has made brief comments about the case comprising general statements about the nature of the allegations and the defense, and statements of matters of public record, Brown, 218 F.3d at 429-30.6 Indeed, an inspection of the visitor log at Mansfield Correctional should reveal that no members of the media, including Mr. Hastings, or a documentary filmmaker have met with Mr. Brown since counsels entry in the case. Thus, the governments assertion that counsel is coordinating prison visits by journalists, documentary filmmakers and other members of the media to manipulate the media is without merit.
5 One media outlet, Rolling Stone magazine, has solicited and received comments by Mr. Brown that were well within the standards set forth in Gentile, Brown, et al. 6 Mr. Swifts statements were limited to those made immediately after his appearance. Mr. Ghappour has also made limited statements, including a comment to Rolling Stone magazine for a forthcoming publication. Both Mr. Swift and Mr. Ghappours comments were made in full accordance with the standards set by Gentile, Brown, et al. 7
The government also states that most of the publicity about Brown thus far contain gross fabrications and substantially false recitations of facts and law which may harm both the government and the defense during jury selection. GB at 9-10. Rather than citing to actual misconduct, the government makes a leap that counsel condones false coverage. This is not a basis to issue a gag order. See United States v. Brown, 218 F.3d 415, 430 (citing to Smith v. Goguen, 415 U.S. 566 (1974)) (A restraining order of any type is unconstitutionally vague if it fails to give clear guidance regarding the type of speech that an individual may not utter.) This cases profile, on its own, should have no bearing on the Courts disposition in this matter. Members of the media are interested in Mr. Brown. Their interest long precedes counsels involvement in the case, and the case itself.7 To the contrary, the media interest in this case, coupled with Mr. Browns radio silence and counsels minimal commenting on general matters, only underscores that the governments request for a gag order is without merit. The government also makes several references to Mr. Browns friends and supporters. GB at 10 ( 26, 30). While counsel was retained by the Barrett Brown Legal Defense Fund, it was made clear at the onset of the case that the Fund could not have any input on Mr. Browns legal matters. Similarly, counsel cannot and does not control Mr. Browns supporters. Nor would relief requested by the government bind members of the public including Mr. Browns supporters, and the media. As such, the governments statements regarding First Amendment activities by Mr. Browns supporters, and other members of the public, are irrelevant and should have no bearing on the issue. GB at 26, 30. Finally, the government states that [d]uring July 2013 and August 2013, Brown discussed with other persons the probability of Esquire, Rolling Stone, and/or Vice making 7 Prior to his arrest, Mr. Brown made frequent media appearances on networks such as MSNBC, and Fox News, and was a featured commentator in several recent documentary films. 8
certain articles public. Brown commented that his attorney was involved. Indeed, Mr. Brown is a journalist that has published in Vanity Fair, the Guardian, Huffington Post, and other media outlets. Mr. Brown continues to write op-eds for publication. See, e.g., The Guardian, The cyber-intelligence complex and its useful idiots, Barrett Brown (July 1, 2013) (Exhibit A). However, Mr. Browns publications do not discuss the case at all. Mr. Brown has a First Amendment right to speak and publish on matters unrelated to his case. Brown, 218 F.3d at 429 (citing Procunier v. Martinez, 416 U.S. 396 (1974)) (It is axiomatic that the limitation on First Amendment freedoms must be no greater than is essential to the protection of the particular governmental interest involved). Nonetheless, Mr. Brown sends all publications to counsel for review to ensure that the publications are not case related. Therefore, any mischaracterization of Mr. Browns publications as misconduct should have no bearing on the issue before the Court. CONCLUSION For the reasons set forth above, the Mr. Brown respectfully request that the Court grant the defendants Motion to Continue Trial and Pretrial Deadlines, and deny the governments request for a gag order. Respectfully submitted, -s- Ahmed Ghappour . AHMED GHAPPOUR Pro Hac Vice Civil Rights Clinic University of Texas School of Law 727 East Dean Keeton St. Austin, TX 78705 415-598-8508 512-232-0900 (facsimile) aghappour@law.utexas.edu CHARLES SWIFT Pro Hac Vice Swift & McDonald, P.S.
1809 Seventh Avenue, Suite 1108 Seattle, WA 98101 206-441-3377 206-224-9908 (facsimile) cswift@prolegaldefense.com MARLO P. CADEDDU TX State Bar No. 24028839 Law Office of Marlo P. Cadeddu, P.C. 3232 McKinney Ave., Suite 700 Dallas, TX 75204 214.744.3000 214.744.3015 (facsimile) mc@marlocadeddu.com Attorneys for Barrett Lancaster Brown CERTIFICATE OF SERVICE I certify that today, August 8, 2013, I filed the instant motion using the Northern District of Texass electronic filing system (ECF) which will send a notice of filing to all counsel of record. /s/ Ahmed Ghappour AHMED GHAPPOUR /s/ Charles Swift CHARLES SWIFT /s/ Marlo P. Cadeddu MARLO P. CADEDDU Attorneys for Barrett Lancaster Brown
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The cyber-intelligence complex and its useful idiots | Barrett Brown | Comment is free | theguardian.com
8/8/13 2:42 PM
The cyber-intelligence complex and its useful idiots
J Edgar Hoover (right, with President Richard Nixon) ran the FBI's illegal Cointelpro domestic political surveillance scheme. Photograph: Bettmann/Corbis
It's a fine thing to see mainstream American media outlets finally sparing some of their attention toward the cyber-industrial complex that unprecedented conglomeration of state, military and corporate interests that together exercise growing power over the flow of information. It would be even more heartening if so many of the nation's most influential voices, from senator to pundits, were not clearly intent on killing off even this belated scrutiny into the invisible empire that so thoroughly scrutinizes us at our own expense and to unknown ends. Summing up the position of those who worry less over secret government powers than they do over the whistleblowers who reveal such things, we have New York Times columnist Thomas Friedman, who argues that we can trust small cadres of unaccountable spies with broad powers over our communications. We must all wish Friedman luck with this prediction. Other proclamations of his including that Vladimir Putin would bring transparency and liberal democracy to Russia, and that the Chinese regime would not seek to limit its citizens' free access to the internet have not aged especially well. An unkind person might dismiss Friedman as the incompetent harbinger of a dying republic. Being polite, I will merely suggest that Friedman's faith in government is as misplaced as faith in the just and benevolent God that we know not to exist Friedman having been the winner of several of the world's most-coveted Pulitzer Prizes. If Friedman is, indeed, too quick to trust the powerful, it's a trait he shares with the just over half of Americans, who tell pollsters they're fine with the NSA programs that were until recently hidden
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from their view. Why, our countrymen wonder, ought we to be disturbed by our state's desire to know everything that everyone does? Given the possibility that this surveillance could perhaps prevent deaths in the form of terrorist attacks, most Americans are willing to forgo some abstract notion of privacy in favor of the more concrete benefits of security. Besides, the government to which we're ceding these broad new powers is a democracy, overseen by real, live Americans. And it's hard to imagine American government officials abusing their powers or at least, it would be, had such officials not already abused similar but more limited powers through repeated campaigns of disinformation, intimidation and airtight crimes directed at the American public over the last five decades. Cointelpro, Operation Mockingbird, Ultra and Chaos are among the now-acknowledged CIA, FBI and NSA programs by which those agencies managed to subvert American democracy with impunity. Supporters of mass surveillance conducted under the very same agencies have yet to address how such abuses can be insured against in the context of powers far greater than anything J Edgar Hoover could command. Many have never heard of these programs; the sort of people who trust states with secret authority tend not to know what such things have led to in the recent past. Those who do know of such things may perhaps contend that these practices would never be repeated today. But it was just two years ago that the late Michael Hastings revealed that US army officials in Afghanistan were conducting psy-ops against visiting US senators in order to sway them towards continued funding for that unsuccessful war. If military and intelligence officials have so little respect for the civilian leadership, one can guess how they feel about mere civilians. Not that anyone need merely guess. Discussing the desirability of such "information operations" in his 2001 book, retired USAF Lt Col George Crawford noted that voters tend to view these sorts of programs with suspicion. "Consequently," he concludes, "these efforts must take place away from public eyes." And so they do. If we want to learn a thing or two about the latest round of such programs that is, if we are willing to disregard the Thomas Friedmans of this world we must look not just towards the three letter agencies that have routinely betrayed us in the past, but also to the untold number of private intelligence contracting firms that have sprung up lately in order to betray us in a more efficient and market-oriented manner. Our lieutenant colonel, scourge of "public eyes", is among the many ex-military and intelligence officials who have left public service, or public obfuscation or whatever we're calling it now to work in the expanding sphere of private spookery, to which is outsourced information operations by the Pentagon, spy agencies, and even other corporations who need an edge over some enemy (in Crawford's case, the mysterious Archimedes Global). So, how trustworthy is this privatized segment of the invisible empire? We would know almost
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nothing of their operations were it not for a chance turn of events that prompted Anonymous-affiliated hackers to seize 70,000 emails from one typical firm back in early 2011. From this more-or-less random sampling of contractor activity, we find a consortium of these firms plotting to intimidate, attack and discredit WikiLeaks and those identified as its key supporters, including the (then Salon, now Guardian) journalist Glenn Greenwald a potentially illegal conspiracy concocted on behalf of corporate giant Bank of America, which feared exposure by WikiLeaks, and organized under the auspices of the Department of Justice itself. We find several of the same firms which collectively referred to themselves as Team Themis involved in another scheme to deploy sophisticated software-based fake people across social networks in order to infiltrate and mislead. For instance, Themis proposes sending two of these "personas" to pose online as members of an organization opposed to the US Chamber of Commerce, another prospective Themis client, in order to discredit the group from within. Yet another revelation involves a massive cross-platform military program of disinformation and surveillance directed at the Arab world; still another relates how one NSA-inked firm can monitor and attack online infrastructure throughout the world, including western Europe, and will rent these capabilities out to those with a few million dollars to spend on such things. And Booz Allen Hamilton, which has received some belated scrutiny as the eminently powerful employer of NSA leaker Edward Snowden, was apparently in talks with Themis participant HBGary Federal regarding its own still-secret "project" involving, again, WikiLeaks. These are simply a few of the revelations stemming from a portion of the email correspondence among a handful of major contracting firms a tiny, serendipitous sampling of what such firms are doing for their government and corporate clients as they compete for contracts. Hundred of these sorts of companies have come about in the last few years, operating in close partnerships with the state, yet existing beyond the view of Congress, the media and "public eyes". Even in the unlikely instance when their activities come to light, potentially illegal behavior goes unpunished; even calls by congressmen to investigate the sordid Themis conspiracy were ignored by the Department of Justice, which, of course, set the whole thing in motion to begin with through its recommendation. This, then, is the environment in which public officials and Beltway insiders like Friedman are asking us to trust the intelligence community and its private partner firms with increasing power over information. It's an age in which even the limited rules in place can be broken with impunity by the powerful even as journalists and activists who cross them are targeted for destruction by statecorporate alliances armed with increasingly sophisticated cyber weapons, propaganda techniques and surveillance authority. This is the world we accept if we continue to avert our eyes. And it promises to get much worse.
8/8/13 2:42 PM
http://www.theguardian.com/commentisfree/2013/jul/01/cyber-intelligence-complex-useful-idiots
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Fight Over Barrett Brown Continuance and Gag Order

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Case 3:12-cr-00317-L Document 81 Filed 08/07/13

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No. 3:12-CR-317-L No. 3:12-CR-413-L No. 3:13-CR-030-L

GOVERNMENTS OPPOSITION TO CONTINUANCE

Government's Opposition to Continuance

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Government's Opposition to Continuance

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Government's Opposition to Continuance

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The government summarizes its interpretation of Browns speedy trial issue:

Feb. 13, 2013

Feb. 26, 2013

see 10(g). see 10(h).

*19 days 28 days

July 12, 2013 July 15, 2013

If not tolled indefinitely due to 10(b), 3 days 9 days 38 days

July 16, 2013 July 17, 2013

If not tolled indefinitely due to 10(b), 1 day 1 day 39 days

Government's Opposition to Continuance

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Date July 19, 2013 July 22, 2013

Action see 10(l).

Days Tolled If not tolled indefinitely due to 10(b), 3 days

Total Days Run

2 days July 31, 2013 see 10(m). Pending

41 days 50 days (as of July 31, 2013)

Government's Opposition to Continuance

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Government's Opposition to Continuance

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Government's Opposition to Continuance

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Browns friend confirmed in a statement to the press (posted on August 7, 2013)

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Government's Opposition to Continuance

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Respectfully submitted, -s- Ahmed Ghappour .

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