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Case 4:15-cr-00454-HSG Document 34 Filed 07/14/16 Page 1 of 62

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
DANIEL RUSH,
)
)
Defendant.
)
___________________________________ )

Criminal No: CR 15-00454 - HSG

DEFENDANTS STATUS REPORT AND REQUESTS FOR DECLARATION OF


COMPLEX CASE STATUS, FOR VACATING PRESENT TRIAL DATE AND FOR
ESTABLISHING A BRIEFING SCHEDULE
FOR DISPOSITIVE AND NON-DISPOSITIVE MOTIONS

I. INTRODUCTION.
A. Overview.
Defendant is submitting the instant pleading to present further acquaint the Court with the
wide range of legal and factual issues that must be addressed by the parties and Court before this
case will be ready for trial. Undersigned counsel have been making a sincere effort to work
through the voluminous discovery provided by the government to date, despite the fact that it has
been presented in a form that requires a highly labor-intensive effort just to open, read and label
the literally thousands of files and hundreds of thousands of pages delivered to them by the
government.
A government investigation into corruption by state and local public officials (codenamed Operation Limelight) was initiated on December 12, 2011. The investigation quickly

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came to focus on the relationship between medical marijuana advocates and promoters, and
various public officials. Such focus coincided with the stirrings of a campaign against medical
marijuana and its providers by the Northern California United States Attorney. That repressive
effort grew more intense over the next few years, notwithstanding the efforts of the President and
the United States Attorney General to de-emphasize federal marijuana prosecutions and to
respect state efforts to make marijuana lawfully available to patients for medical use.
Mr. Rush appeared on the governments radar in the Limelight investigation partly as
a result of telephone records indicating that he was in communication with a Nevada marijuana
advocate who was being targeted for prosecution. Mr. Rush had long been a supporter of making
medical marijuana available to needy patients, and for many years had been employed as a
special operations director with Local 5 of the United Food and Commercial Workers Union
(UFCW).
In August 2011 he went to work for the International Union as Organizing Coordinator of
the UFCW. He quickly saw the advantages to both the International and the movement to
decriminalize medical marijuana by organizing cannabis workers in this emerging industry. Soon
he helped create and became director of Cannabis Workers Risingdivision within the union, as
he became an active spokesperson for California Proposition 19, which would have
decriminalized medical marijuana.
He began to travel widely throughout California and in other states with pending
legalization efforts, encouraging public officials to support such legalization. These actions
brought him into conflict with the (former) United States Attorney and the drug enforcement
bureaucracy, a conflict which grew sharper as California law came to allow counties to establish

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medical cannabis regulations. At least by October 17, 2013,1 Mr. Rush was a clear target of the
federal investigation, which proactively utilized large scale illegal growers seeking to curry favor
with the government or to work off their cases, actual or threatened.
Massive consensual monitoring and recording of his conversations followed, as the
government sought to build its case against him, eventually turning even his lawyer into a proactive government informant against him.

Yet Mr. Rush was not indicted on the instant charges

until September 17, 2015. Against this background we respectfully suggest that vacating the
present trial date and establishing the schedule proposed herein is eminently reasonable under the
circumstances.
Defendant will detail counsels considerable efforts to review discovery below, and will
also make the Court aware of a substantial amount of additional discovery that they have
previously requested but which has either not yet provided or entirely refused. In the next section
of this Introduction they will generally outline the overarching issues surrounding the
governments aiding, abetting and facilitating egregious violations of Mr. Rushs attorney-client
privilege by and through its chief cooperating witness, Attorney Martin Terbeek.
The discovery that they have received, as well as their own investigation, has
demonstrated that during the course of its investigation and prosecution of Mr. Rush the
government has violated his Fifth and Sixth Amendment Constitutional rights. As a result,
undersigned counsel must prepare detailed dispositive motions to dismiss this case with

This information was gleaned from an FBI Form 1057 Electronic Communication,
(hereinafter FD 1057), dated October 17, 2013. Because there are other names in the Report,
undersigned counsel have not appended a copy hereto; however they will have it available for the
Courts review at the Status Conference.
1

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prejudice based upon Outrageous Government Conduct and Vindictive Prosecution, each of
which will require substantial additional discovery and evidentiary hearings.
Undersigned counsel must also prepare and file motions to suppress evidence from at
least four (4) separate searches, and from other conversations involving Mr. Rush that were
recorded without authorization by any court and in violation of the laws of the States of
California and Nevada. If any of these motions were granted the government is unlikely to be
able to present most, if not all of its evidence against Mr. Rush.
Even if the Court were to deny all of the foregoing dispositive motions for relief, there are
likely to be myriad pretrial motions in limine to address evidence that the parties may seek to
introduce at trial, including defenses of entrapment and lack of mental capacity, and the
admissibility of evidence pursuant to Rules 403, 404(b), 501-502, and 801(d)(2)(E) of the
Federal Rules of Evidence. Therefore defendant respectfully asserts that the scheduling relief
requested herein would provide the most thorough, expeditious and fair process to ready this
highly complex case for trial, assuming the Court does not dismiss it for reasons suggested
above.

B. Attorney-Client Privilege.
In this section of the Status Report, defendant will outline some of the pertinent details in
regard to the repeated violations of Mr. Rushs attorney client privilege by its cooperating
witness, Marc Terbeek, which were carefully orchestrated and monitored by government agents
and prosecutors. This will form the basis for a Motion to Dismiss the Indictment for Outrageous
Government Conduct that will be filed after the government completes its duty to provide
relevant discovery, only a portion of which has been received by defendant to date.

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In the succeeding paragraphs, undersigned counsel will provide some detailed


background on this issue, because to adequately address it in pretrial motions will require careful
review of thousands of documents, many of which have not yet been provided in discovery. The
privilege issue impacts every aspect of the governments investigation, and also this Courts
obligation to determine the admissibility of much of the prosecutions evidence at trial.
In January 2015, six (6) months before the instant indictment was returned, the law office
of his private attorney (and alleged co-conspirator) Marc Terbeek was searched. Apparently
Terbeek immediately decided to become a cooperating witness in an effort to minimize his
criminal exposure.
As noted above, in numerous documents and pleadings the government has repeatedly
characterized Terbeeks role in the alleged conspiracies charged against Mr. Rush, as his
co-conspirator. After the January 2015 search of his law office and his immediate decision to
work for the government against his client Mr. Rush, Terbeek participated PROACTIVELY in
the government's investigation of Mr. Rush on almost a daily basis for a period of 7 months.
Over that lengthy period of time he recorded numerous person-to-person and telephonic
conversations with Mr. Rush, each of which was approved in advance and carefully orchestrated
by the FBI agents and government prosecutors to attempt to incriminate Mr. Rush. Terbeek also
voluntarily provided numerous documents to the government which were privileged.
Terbeeks efforts have obviously satisfied the government. Although characterized by the
government in various application and in the initial Complaint herein as Mr. Rushs
co-conspirator, and also having perpetrated many crimes that have nothing whatsoever to do
with Mr. Rush, Terbeek has not yet been charged with any criminal offense, and remains in

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good standing with the State Bar of California. [See screenshot from State Bar of California
Web Site, attached hereto as Exhibit A.]
Undersigned counsel have been concerned from the beginning of this case with the extent
to which the government and Terbeeks actions outlined above impacted the privacy of
defendants attorney-client privileged communications with Terbeek. In 2015 government
counsel agreed to provide them with copies of all documents from the Terbeek law office search
in January 2015, including the search warrant application and affidavit, the search warrant, the
return from the search, and all other documents related to the search.
Therefore at Pages 2-3 of their comprehensive 17 page discovery request sent to the
government on May 4, 2016, a copy of which is attached hereto as Exhibit B, they reiterated
their requests in great detail.2 However it failed to do so until 10:30 am on July 14, 2016, the
date of the filing of the instant status statement, when materials pertaining to the search were
delivered by Federal Express.3
Based upon information from government counsel, as well as assertions in the application
for the July 2015 search warrant for Mr. Rushs residence, it appears that the government was
well aware of the attorney-client privilege issue in searching Terbeeks law office (presumably
for files related to his client, defendant Rush). According to the undocumented assertions of
government counsel, its solution to the obvious privilege issues was to have a taint team

This discovery letter will be referred to again, infa.

Undersigned counsel will review these materials and be prepared to address them substantively
at the July 18, 2016 Status Hearing, but do not have time to address them in further detail in this
pleading.
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review the files during the Terbeek law office search (whatever that process may actually have
entailed).
Six months later, the governments position on the attorney-client privilege between
defendant and Attorney Terbeek was described as follows in Paragraph 18 of the Application for
the Search Warrant for Mr. Rushs residence:
TERBEEK has been informed by the United States Attorneys Office that he is a target
of this investigation and is likely to be prosecuted. He is represented by counsel, Edward
Swanson and August Guglemann. TERBEEK is cooperating with the FBI investigation
for the purpose of mitigating his culpability and reducing any potential sentence.
Terbeek is an attorney. He has informed me that he has considered the issue of attorney
client privilege and consulted with Mr. Swanson and Mr. Guglemann regarding
whether the information he has provided to the FBI is protected by the attorney-client
privilege, and has not provided the FBI with privileged information. (Emphasis
added).
Therefore the government chose to vest total discretion and responsibility in Terbeek to
determine whether any of his actions during the investigation, and any of the documents and
information he provided and information he later solicited during recorded conversations
violated Mr. Rushs attorney-client privilege.
This process created inherent and unresolvable conflicts of interest between Terbeek and
Rush, because Terbeek wanted to mitigate his culpability and reduce any potential sentence
by maximizing his production of incriminating information. Likewise Terbeeks criminal
defense lawyers owed no duty to Mr. Rush, and had the primary responsibility of assisting and
facilitating their client Terbeek in his mitigation and potential sentence reduction efforts.4

Indeed, defendant asserts that every disclosure of attorney-client communications by Terbeek to


his criminal defense lawyers Swenson and Guglemann (third parties who owed no duty of
confidentiality whatsoever to Mr. Rush), further violated Rushs right to the confidentiality of his
communications with Terbeek.
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Most egregious of all, the government attempted to separate itself from all responsibility
for determining whether Mr. Rushs rights were in any way violated. Thus for six months, the
government carefully orchestrated conversations between Terbeek and Rush that Rush believed
were privileged, while third parties (agents and prosecutors) listened to the conversations and
reviewed the Terbeek-produced documents without a shred of concern about Mr. Rushs
privilege.
Undersigned counsel are well-aware of the crime-fraud exception to the attorney-client
privilege. There are numerous cases wherein an attorney is required to respond to questions
before a grand or petit jury, the answers to which would otherwise be privileged, if a court
determines in advance that the crime/fraud exception is applicable in that particular instance.
Likewise, counsel understand that upon advance judicial approval and a finding of
probable cause, conversations between lawyers and clients may be bugged, and portions later
used in evidence under the crime-fraud exception. However all of these instances involve and
relate to past events.
The only case that counsel have yet found that involved proactive involvement of a
lawyer against a client is United States v. Marshank, 777 F.Supp, 1507 (N.D.Ca. 1991), wherein
Judge Patel dismissed a prosecution for outrageous government conduct in violation of
Marshanks Fifth and Sixth Amendment rights. In doing so, after extensive evidentiary hearings,
she granted defense motions for such dismissal and also did so in the exercise of her inherent
supervisory powers over the case.
At all points in time until he read the complaint after his arrest in July 2015, Mr. Rush
believed that all of his conversations with Attorney Terbeek had been completely privileged.

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Undersigned counsel will go into much further detail as to these matters in their moving papers,
once they have received the requested and promised discovery.
C. Discovery Issues.
1. Form of Discovery.
Regardless of whether it was intentional, undersigned counsel respectfully suggest that
the voluminous discovery provided to date by the government effectively constitutes a
document dump. In cover letters dated October 27, 2015, May 23, 2016 and May 24, 2016, the
government summarized the discovery it provided. [Copies of these letters are attached hereto as
Exhibit C, Exhibit D, and Exhibit E].
The difficulties inherent in the manner in which the discovery information has been
presented to counsel for Mr. Rush has been the basic impediment to their ability to determine
what is relevant to their trial preparation and what is not. The following example will hopefully
explain their dilemma.
In the cover letter dated May 24, 2016 (a part of Exhibit E), item (3) is described as:
A collection of key documents, in chronological order, describing the investigation.
Although these documents have been produced in other forms, we thought it would be
helpful for you to see these documents in an assembled form. These documents bear
Bates labels DR-001871 to -002368.
This would constitute approximately 600 pages.
However when opening the CD to that Bates Range, each of the approximately 384
separate documents is identified and labeled solely with its opening Bates number. In Exhibit
F attached hereto, counsel have provided screen shots showing what one can observe upon
opening the folder.

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In order to view and identify the contents, each of the files must be separately opened.
After opening and reading each of the files, counsel must then execute a Save As command, to
enable them to enter a new descriptive name so that they may more easily search and find it again
as necessary, and/or print it out.
This is a highly labor intensive process that undersigned counsel must perform
themselves. If they were applying the Ninth Circuit CJA standards for reading of transcripts (60
pages per hour), just reading those 384 files would require at least 10 hours; further, the process
of opening, labeling, saving and cataloguing them would require substantial additional time.

2. Volume of Discovery.
As noted above, the government has already delivered an extensive amount of discovery
to Mr. Rush, and in this subsection counsel will summarize its contents. In the following
subsection, he will review what the government has refused to provide to them, which may
require counsel to file motions to compel discovery.
In its first production of discovery on October 27, 2015, [Exhibit C], the government
delivered 61 CDs, and mentioned that 4 additional CDs may contain privileged information, and
they would be sent to counsel for Mr. Terbeek to review these for potential privilege. On
October 29, 2015, counsel for Mr. Rush sent the government a brief response, in which it sought
some additional discovery, and also questioned its determination to send potentially privileged
conversations to Terbeeks counsel, when the privilege belongs to Mr. Rush. [A copy of
defendants October 29, 2015 response has been attached hereto as Exhibit G.]
The governments May 23, 2016 discovery cover letter listed and described, inter alia,
ten (10) categories of discovery materials that were loaded onto the one Terrabyte external hard

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drive provided to it by defendant at the governments request. When undersigned counsel logged
onto the hard drive, each file was again identified solely by its beginning Bates number, as was
the case above in Exhibit F.
Subsection (8) alone of that production letter lists Bates numbers for approximately
886,000 pages of documents produced by the UCFW in response to a grand jury subpoena,
which according to government counsel sought documents pertaining to Mr. Rush and to
Medical Cannabis. At least another 4 gigabytes of files are included in the other nine (9)
categories of non-UCFW files that are on that hard drive.
Undersigned counsel have not begun to review these UCFW files, and in a conversation
with government counsel on July 8, 2016, they were given to understand that the government had
not done so either. Assuming the UCFW grand jury subpoena was issued in good faith, the
government must have believed that there was pertinent information to be gleaned from such
production, and it is respectfully submitted that:

The UCFW may have provided documents that are relevant to Mr. Rushs defense.

There is no way that undersigned counsel can make that determination without reviewing
each of the tens of thousands of documents, which would be prohibitively
time-consuming for them to attempt.

The government should bear the burden of initially reviewing all of the subpoenaed
documents to determine what may be relevant to the charges in the instant indictment.

If the government provided defendant with copies of the UCFW grand jury subpoena,
undersigned counsel might be able to narrow their review to certain specific categories of
sought documents. The government could then use its personnel and IT expertise to
extract such documents from among the 800,000 pages.
In addition to the discovery included on the external hard drive, the prosecutions May

23, 2016 disclosure included a CD with information seized from computers during the July

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2015 search of Mr. Rushs residence. It would not open despite being inserted in three (3)
different disk drives.
A second CD included in the May 23, 2016 disclosure contains five categories of
materials totaling 364 separate files, each one (1) page in length, and identified in the index
solely by its Bates number. Therefore to review these files, again each must be opened
individually, reviewed, possibly printed-out, and then renamed with a description that facilitates
locating it in the future, a highly labor-intensive process.
The governments further disclosures on May 24, 2016, Exhibit E, included three (3)
CDs, the first of which contained an additional 950 pages of documents broken down into seven
separate categories. Upon opening this disk there are 5 folders that generally describe the
contents, but each of the files within such folders is identified solely by its initial Bates number.
One of the folders, labeled FBI reports contains 44 files, each of which must be
individually opened, read, and renamed for future use and/or printed out for review. The other
two (2) CDs included in the May 24, 2016 disclosure will not open.

3. Unproduced Discovery.
As summarized above, defendant requested discovery in a lengthy request dated May 5,
2016, Exhibit B. On the date of this filing, the government provided information pertaining to
the search of the Terbeek law office, in response to undersigned counsels written request on
October 29, 2015, Exhibit G. They will be prepared to address this disclosure at the July 18,
2016 Status Conference.
In its May 23, 2016 letter to undersigned counsel, the government agreed to respond to
defendants detailed 17 page discovery request of May 4, 2016.:

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We are also preparing a substantive response to your letter dated May 5, 2016. Although we
have now produced the vast majority of the items requested in the letter, there will be several
items that we believe need to be addressed in a more substantive fashion. I will send this
letter to you shortly, but we wanted to make sure that we continue providing discovery as
quickly as possible, in order to keep moving forward.
Counsel for Mr. Rush have not yet received such letter, and in a conversation with government
counsel on July 8, 2016 they were informed that the government no longer intended to provide
the promised substantive response.
Defendant respectfully suggests that while the government has provided voluminous
discovery as described above, the form in which it has been presented precludes swift review and
cataloguing. The discovery requested but not provided will require substantial further discussion
between the parties, and a likelihood of motions to compel discovery to be determined by the
Court.
In Addition, the Terbeek law office search documents just received this morning must be
carefully reviewed for completeness. It will also require substantial legal research and
preparations of pleadings to address not only the ordinary search and seizure issues, but also
the extremely complex and unique concerns inherent in the impact of the search upon Mr. Rushs
attorney-client privilege.

II. THE TRIAL DATE OF OCTOBER 11, 2016 SHOULD BE VACATED AND A
CONTINUANCE SHOULD BE GRANTED PURSUANT TO 18 U.S.C.
3161(h)(7).
A continuance of the trial date may be granted under the ends of justice provision of the
Speedy Trial Act, 18 U.S.C. 3161(h)(7)(A), which requires a finding by the Court that the
ends of justice served by [granting such continuance] outweigh the best interest of the public and
the defendant in a speedy trial, sometimes hereinafter referred to as an ends of justice

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continuance. Defendant will address two of the four factors identified in subsection (B) of
3161(h)(7)(B), that this Court shall consider in determining whether to grant the requested
continuance in the context of the case at bar. The third factor and fourth factors,
3161(h)(7)(B)(iii) and (iv) are not applicable to the circumstances of this prosecution.
(i): Whether the failure to grant such a continuance in the proceeding would be
likely . . . [to] result in a miscarriage of justice.
Undersigned counsel begin by stating that they truly understand and appreciate the
Courts concern that this case move forward to resolution expeditiously. That is why they have
gone into great detail herein to show that the requested continuance is a matter of necessity and
not for convenience of counsel.
Undersigned counsel together have had almost 100 years of experience in the preparation
of defenses for trial in complex federal and state criminal cases, and have never addressed factual
and legal issues that are any more complicated, convoluted and thorny than those presented by
the instant investigation and indictment.
They have carefully outlined these difficulties above in this Status Report. Therefore they
must respectfully inform the Court they cannot possibly prepare this case and answer ready for
trial on the presently established trial date of October 11, 2016.
They believe that to do so would violate ethical duties which require them to provide an
adequate defense for Mr. Rush, and would constitute per se ineffective assistance of counsel. To
begin trial without reviewing all of the numerous documents for relevance, and without an
adequate opportunity to do the necessary factual and legal research essential to filing the abovedescribed dispositive and non-dispositive pleadings would clearly constitute a miscarriage of
justice pursuant to 3161(h)(7)(B)(i).

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(ii) Whether the case is so unusual or so complex, due to . . . the nature of the
prosecution, or the existence of novel questions of fact or law, that it is unreasonable
to expect adequate preparation for pretrial proceedings or the trial itself within the
time limits established by this section.
Undersigned counsel respectfully assert that for reasons set forth above, the
circumstances of this prosecution are indeed highly unusual and complex, and
unquestionably present novel questions of both fact and law. They note that based upon the
information and circumstances outlined above, it would be unreasonable to expect that they
can be adequately prepared for pretrial proceedings and the trial itself on the presently set dates.
As explained above, the sheer volume of discovery already provided, and the inherent
difficulties in accessing it and rendering it usable for pretrial and trial preparation, are
overwhelming. The unique attorney-client privilege issues that pervade every aspect of the
governments multi-year investigation are highly unique.
Counsel must do further investigation and legal research to prepare and file numerous
dispositive motions, including motions to suppress at least four (4) searches and motions to
dismiss for Outrageous Government Conduct and Vindictive Prosecution of Mr. Rush. These
efforts will be time-consuming and are likely to require further discovery from the government as
well as evidentiary hearings and thereafter further briefing for the Court.
The circumstances of this case also require counsel to investigate the defense of
entrapment and defendants mental capacity during the last year of the governments
investigation. Finally, there are numerous complex evidentiary issues that must be addressed in
pretrial motions in limine, if the case is not dismissed upon granting of one or more of their
dispositive motions.
//

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III. CONCLUSION.
The government has pursued this case for many years, amassing an enormous war chest
of surreptitiously recorded private conversations. In the course of their pursuit of Mr. Rush these
Agents and prosecutors turned his lawyer into a proactive informant, recording a vast number of
calls and conversations that Mr. Rush reasonably believed were confidential and protected by the
attorney-client Privilege.
They compensated and promised leniency to a motley crew of criminals and opportunists
to create a case against him, a government onslaught that coincided with Mr. Rushs vigorous
efforts to make medical marijuana available to needy patients though distribution centers staffed
by Union workers he helped organize under the auspices of the UFCW. His efforts were in
accordance with the will of California citizens but very much in opposition to the United States
Attorneys sinister, punitive and ill-advised campaign against decriminalization.

In the course of this pursuit of Mr. Rush the government trampled on his constitutional
right to privacy and to due process of law, and his Sixth Amendment right to the assistance of
counsel who was not operating under a secret government-created conflict of interest while
working to save himself at his clients expense. When the charges against Mr. Rush were finally
brought to light the government provided voluminous discovery in a disjointed and extremely
confusing manner that defies efficient or expeditious use by the defense, while withholding for a
long period important documents that have been requested since the dawn of the prosecution.
Experienced counsel view the case as complex and have set out in detail their clear need
for additional time to prepare. Under these circumstances we respectfully request that the Court
grant Mr. Rush the following relief:

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1. Declare this case complex pursuant to 18 U.S.C. 3161(h)(7)(A);


2. Vacate the present trial date of October 11, 2016;
3. Order to government to complete its discovery production by September 1, 2016;
4. Require that defense substantive and dispositive motions be filed by October 28,
2016, and establish additional filing dates for any government opposition and defense
replies to such opposing pleadings;
5. Set a hearing date for the motions and a trial setting date after they are decided;
6. Issue such further orders as may be necessary and appropriate.

Respectfully submitted:
/s/ William L. Osterhoudt
Law Office of William L. Osterhoudt
135 Belvedere Street
San Francisco, CA 94117
Telephone: 415-664-4600
Email: Osterhoudt @aol.com
/s/ Alan P. Caplan
ALAN P. CAPLAN
Attorney at Law
1336 Villa Barolo Avenue
Henderson, Nevada 89052
Telephone: 702-331-1294
Email: apc716@gmail.com
Co-Counsel for Defendant
DAN RUSH

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CERTIFICATE OF SERVICE
I, Alan P. Caplan, co-counsel for defendant Dan Rush, hereby certify that I have
caused copies of the above Status Statement and requests for relief to be served
electronically through the ECF system and procedures to all parties herein on July 14, 2016.

/s/ Alan P. Caplan


ALAN P. CAPLAN
Attorney at Law
1336 Villa Barolo Avenue
Henderson, Nevada 89052
Telephone: 702-331-1294
Email: apc716@gmail.com
Co-Counsel for Defendant
DAN RUSH

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STATUS STATEMENT
JULY14, 2016
___________________

EXHIBIT A

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STATUS STATEMENT
JULY14, 2016
___________________

EXHIBIT B

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ALAN P. CAPLAN
ATTORNEY AT LAW
1336 VILLA BAROLO AVENUE
HENDERSON, NEVADA 89052*
TELEPHONE: (702) 331-1294
E-MAIL: apc716@gmail.com
Web Site: www.alancaplan.com

May 5, 2016

John H. Hemann
Adam Wright
Assistant United States Attorneys
9th Floor, Federal Building
450 Golden Gate Avenue
San Francisco, CA 94102-3495
Re: United States v. Rush; Case No. 4:15-cr-00454-HSG Discovery Demand.
Dear John and Adam:
Although, to date, the government has provided us with a substantial amount of pretrial
discovery in the above-entitled matter, co-counsel Bill Osterhoudt and I also felt it would
be appropriate to make a formal demand as well. Our requests will be delineated by the
requirements of the Federal Rules of Criminal Procedure (FRCrP), and also by various
federal Constitutional and statutory provisions.
We realize that you may already have provided us with some materials that will fall
within the parameters of our requests; however we felt it easier for all concerned to make
them, and if we already have the discovery at issue, you can just state that it has been
provided, and identify the disc(s), folder(s) and file(s) where such information may be
found.
This Discovery Demand seeks not only the information, materials and evidence detailed
below that is presently known to the government, but also that which in the exercise of
due diligence may or should become known during the course of further proceedings in
this case.
We have numbered the demands sequentially, so that in future communications and
pleadings, we all may more easily identify the matter at issue with specificity. We will
also insert some categorical headings, e.g. Fifth Amendment - United States
Constitution, and Vindictive Prosecution, that may serve to more easily locate the
detailed requests.

*Member of Massachusetts Bar Not Licensed by State of Nevada

Case 4:15-cr-00454-HSG Document 34 Filed 07/14/16 Page 23 of 62

\
Rule 12, Federal Rules of Criminal Procedure.
1. Pursuant to 12(b)(3)(C) and Rule 12(b)(4)(B), in order to prepare and file motions
to suppress evidence, defendant Rush demands that the government disclose its
intention to use in its evidence in chief at trial, any evidence that he may be
entitled to discover under Rule 16 that falls within one or more of the following
categories:
a) Evidence sized pursuant to the execution of search warrants, including
(without limiting the scope of the instant request) searches of:
i) The January 7, 2015 search of the law office of Marc Terbeek that was
located at 2648 International Boulevard, Oakland, California;
ii) The residence of Dan Rush at 472 W. MacArthur Boulevard, Oakland,
California.
For such searches, defendant asks that he be provided copies of the
application for each search warrant, any amendments to such application
and/or supplemental information provided to the magistrate that approved it.
He further requests that he be provided with a copy of each search warrant.
He further requests that he be given a copy of the return of service for each
search warrant, together with each report prepared by law enforcement
personnel who participated in each such search that details the manner,
location and circumstances of such seizures.
With respect to the Terbeek Law Office search, he demands production of all
written materials and protocols prepared in advance of such search that
instructed law enforcement personnel in regard to protecting against improper
disclosure and review of materials that would violate the attorney-client
privilege with respect to Terbeeks clients.
b) A description and copies of all documentary evidence pertaining to Dan Rush
that was voluntarily delivered to law-enforcement by Marc Terbeek without
the authorization of a search warrant.
c) All law-enforcement reports and grand jury testimony that incorporated
unrecorded statements attributed to defendant Rush by government
cooperating witnesses Kaufman, Peterson, Anderson and Terbeek.
d) All law-enforcement reports and grand jury testimony that incorporated
unrecorded statements attributed to defendant Rush by law-enforcement
agents.

Case 4:15-cr-00454-HSG Document 34 Filed 07/14/16 Page 24 of 62

e) All information pertaining to court-authorized electronic surveillance and


unauthorized electronic surveillance specified and requested infra in this
discovery demand.

Rule 16, Federal Rules of Criminal Procedure.


2. Pursuant to Rule 16(a)(1)(A) of the FRCrP, please provide us the substance of any
relevant oral statement made by defendant Rush, before or after arrest, in response
to interrogation by a person known to him to be a government agent, if the
government intends to use the statement at trial.
In that regard, defendant takes the position that any such statement that the
government does not intend to use at trial is either so prejudicial as to be
inadmissible under the Federal Rules of Evidence, or alternatively it is
exculpatory, and must be included with Brady discovery as more fully outlined
infra. In either event it should be produced.

3. Pursuant to Rule 16(a)(1)(B) of the FRCrP, please provide us with copies of any
of the following:
a) All written and/or recorded statements that you know to be within the
governments possession, custody and control, or which through due diligence
you would know exist; Rule 16(a)(1)(b)(i); and
b) The portion of any written record containing the substance of any oral
statement made by defendant Rush before or after his arrest in response to
interrogation by a person Mr. Rush knew to be a government agent; Rule
16(a)(1)(B)(ii); and
c) Any recorded testimony by Mr. Rush before a grand jury that was considering
or investigating the events and circumstances that culminated in the
above-numbered indictment. Rule 16(a)(1)(B)(iii).
4. Pursuant to Rule 16(a)(1)(D) of the FRCrP, please provide us with an up-to-date
copy of Mr. Rushs prior criminal record that is clearly within the governments
possession, custody and control.
5. Pursuant to Rule 16(a)(1)(E) of the FRCrP, please permit us to inspect, and also
provide us with copies of books, documents, data, photographs, tangible objects
(inspection and photographs), buildings or places (inspection and photographs), or
portions of any of these items if the item is within the governments possession,
custody or control, and:
(i)

the item is material to preparing Mr. Rushs defense;


3

Case 4:15-cr-00454-HSG Document 34 Filed 07/14/16 Page 25 of 62

(ii)

the government intends to use it in it6s case-in-chief at trial; or

(iii)

the item was obtained from or belongs to Mr. Rush.

6. Pursuant to Rule 16(a)(1)(F) of the FRCrP, please provide us with copies, and
further permit us to inspect copy or photograph, the results and reports of any
physical or mental examination and of any scientific test or experiment if:
(i)

The item is within the governments possession, custody or control;

(ii)

You know, or with the exercise of due diligence could knowthat the
item exists; and

(iii)

The item is material to preparing the defense or the government intends to


use the item in its case in chief at trial.

7. Pursuant to Rule 16(a)(1)(G) of the FRCrP, please provide us with a written


summary of any expert witness testimony that the government intends to use
under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case in
chief at trial, including each such witnesss opinions, the bases and reasons for
those opinions, and his/her qualifications.

Informers, Northern District of California Local Rule 16-1(c)(2).


8. Pursuant to Northern District of California Local Rule 16-1(c)(2), please provide
us with a statement of the governments intent to use informants as witnesses at
trial of the above-numbered indictment.
We have already been made aware of the identities of several persons who have
been cooperating with the government, including Marc Terbeek, Carl Anderson,
Martin Kaufman and Derek Peterson.
Please provide us with a statement that identifies each informant whom the
government may call as a trial witness, including the above-named four
individuals, and identify (i) all direct and indirect benefits that were given to each
such witness in the past by any law-enforcement or prosecutorial agency, and (ii)
any and all benefits promised to or expected by each such witness in the future as
a result of his/her as cooperation
In regard to determining what constitutes benefits, please include not only
direct or indirect monetary payments of every nature whatsoever, but also any

Case 4:15-cr-00454-HSG Document 34 Filed 07/14/16 Page 26 of 62

determination not to prosecute any such witness for criminal acts or criminal
conduct of any kind.
Included within the scope of this request are all admissions of criminal offenses
and conduct to which each such witness admitted in any interview with federal,
state and/or local law enforcement agents and officers, or which became known to
prosecutors and/or law enforcement through investigative efforts (including
investigation of third parties or 3rd party statements).

Statements of Witnesses, Rule 26.2, Federal Rules of Criminal Procedure.


9. Pursuant to Rule 26.2, FRCrP, Mr. Rush is placing the government on notice that
it should be prepared to provide Mr. Rush with the following information:
(a) Any statement of that witness that is in the governments possession that
relates to the subject matter of the witnesss testimony, and more particularly
falls within the definition of statement as specified by FRCrP, Rule 26.2(f).
FRCrP, Rule 26.2(a).
(b) If the entirety of each such prior statement relates to the subject matter of the
witnesss testimony, Mr. Rush will ask the Court to order the government to
produce the entire statement. FRCrP, Rule 26.2(b).
(c) In the event that the government claims that the statement contains
information that is privileged or does not relate to the subject matter of the
witnesss testimony, defendant will request the Court to examine each such
statement in camera, to excise any privileged or unrelated portions and order
you then deliver the redacted statement to us.
In the event that we believe that any excision ordered by the Court is
objectionable, we will further request that the entire unredacted statement be
preserved under seal as a part of the record of this case. FRCrP, Rule 26.2(c).
As you know, the Rule requires that the statements be provided no later than
immediately after each of the witnesses testifies on direct examination at any
suppression or other pretrial hearing and after each of the governments
witnesses testifies on direct examination at trial. However, we request early
production of such statements to effectively prepare for trial and to avoid the
delays and mid-trial continuances that would otherwise be required.
This is particularly necessary in the present case wherein the bulk of the
governments evidence against Mr. Rush will consist of the testimony of
cooperating witnesses who will describe their contacts with Mr. Rush and
attempt to explain and give context to their recorded conversations with him.

Case 4:15-cr-00454-HSG Document 34 Filed 07/14/16 Page 27 of 62

Under these circumstances we request that the statements be produced to


defense counsel at least sixty days before trial.

Electronic Surveillance.
10. Court-authorized Electronic Surveillance Communications - Dan Rush.
Pursuant to 18 U.S.C. 3504, and 18 U.S.C. 2518(8)(d), (9) and (10), and Northern
District of California Local Rule 16-1(c)(1), defendant requests that you disclose to him
the following information, and in doing so that you review relevant federal and state
prosecutorial and law enforcement databases in Washington, D.C., California and
Nevada:
(a) All voice records, tapes, mechanical or electronic recordings, logs, records or
memoranda pertaining to any electronic surveillance or other surveillance:
(i) Of any wire or oral communication to which defendant Rush was a party;
(ii) Of any wire or oral communication at any place in which Mr. Rush has
any property right or any other nexus of use and reasonable expectation of
privacy;
(iii) Of any wire or oral communication at any place put under surveillance for
the purpose, in whole or in part, of gathering leads against Mr. Rush in the
governments investigation of this case;
(iv) Of any wire or oral communication at any place where the defendant was
at the time of this surveillance;
(v) Of any wire or oral communication intercepted pursuant to warrant or
application in which Mr. Rushs name appears, or in which such warrant
or application was based upon investigatory memoranda, reports, etc., in
which Mr. Rushs name appears.
Included within this category is any such communication intercepted
during any investigation in the Northern District of California or in the
District of Nevada of government cooperating witnesses MARC
TERBEEK, MARTIN KAUFMAN, CARL ANDERSON, and DEREK
PETERSON, all of whom were identified in the initial Complain filed
herein against Mr. Rush, as well as in the Application for Search
Warrant for Mr. Rushs residence at 468 W. MacArthur Boulevard,
Oakland, California.
(vi) Of any wire or oral communication in which Mr. Rush is named or
directly or indirectly refereed to;
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Included within this category is any such communication during any


investigation in the Northern District of California or District of Nevada
of government cooperating witnesses MARC TERBEEK, MARTIN
KAUFMAN, CARL ANDERSON, and DEREK PETERSON, all of
whom were identified in the initial Complain filed herein against Mr.
Rush, as well as in the Application for Search Warrant for Mr. Rushs
residence at 468 W. MacArthur Boulevard, Oakland, California.
(vii)

Of any wires, the contents of which evidence transfers of money.

(b) All actual voice records, digital recordings, tapes, memoranda, letters and
articles of any electronic or other surveillance of any wire or oral
communications to which any of Mr. Rushs attorneys (including without
limiting the scope of this request, Attorney Marc Terbeek of Oakland,
California), his or her agents or employees, were a party and any conversation
at which any of these attorneys, their agents or employees were present.
(c) The demand for disclosures in subparagraphs (a) and (b) of this Section 9
includes any wire or oral communications, logs, records, reports, etc.:
(i) to which any of the parties to such conversation allegedly consented;
(ii) which revealed the existence of such conversations but not the contents;
and
(iii) which were undertaken by a private person or corporation in addition to
any government agency.
(d) For any electronic or other surveillance described in subparagraphs (a), (b),
and (c) above for which there are no voice records. Tapes, digital, mechanical
or electrical recordings, logs, memoranda, records, letters or articles, the
names and business addresses of the persons who conducted or have
knowledge of such surveillance.
(e) For any electronic or other surveillance requested and described in
subparagraphs (a), (b), (c) and (d) above which either the prosecution or Court
refuse to provide or order, please confirm and acknowledge their existence,
and the circumstances underlying each such instance of surveillance,
including the date and location, the duration, the manner in which it was
conducted, and all other relevant facts.
(f) We also request that you provide all applications, affidavits, authorizations,
orders, memoranda and other papers submitted by any federal or state
prosecutorial and/or law-enforcement agency in support of applications for
executive, administrative, or judicial approval of such surveillance as
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Case 4:15-cr-00454-HSG Document 34 Filed 07/14/16 Page 29 of 62

described above, and all opinions and decisions responsive thereto or relating
to the surveillance described above.
11. Court-Ordered Electronic Surveillance Dan Rush Pen Registers, Traps
and Traces.
Please provide us with the following discovery pertaining to each use of any pen register
and/or any trap and trace device that was authorized pursuant to the requirements of 18
U.S.C. 3121 3127 during the investigation in the States of California and Nevada
that culminated in the above-numbered indictment of defendant Rush.
We are incorporating into this request:

The definitions of the terms pen register and trap and trace device that are
set forth in 18 U.S.C. 3127(3) and 3127(4) respectively, and we may refer to
them herein collectively as the devices.

That you disclose of each use of the devices that was made pursuant to 18 U.S.C.
3121(a)(3) an exception to the general prohibition against use of the devices in
the absence of a court order for where the consent of the user of that application
was obtained.

That you disclose to us the requisite information pertaining to any emergency


installation of the devices pursuant to the 18 U.S.C. 3125(a) and (b).

That you also include in your disclosures any application for a Court order made
by any State investigative or law enforcement officer from the States of California
and/or Nevada, as provided in 18 U.S.C. 3122(a)(2) and (b)(1) and
3123(a)(2)and (3).

The phrase the investigation that culminated in the above-numbered indictment


of Dan Rush is meant to include not only the investigation that led to the direct
charges in this case, but also any other investigations in the States of California
and Nevada between January 1, 2010 and the present date, of persons other than
Mr. Rush in which information from Mr. Rushs telephone was intercepted by one
or more of the devices.
Persons other than Mr. Rush includes, but is not limited to prosecution
cooperating witnesses MARC TERBEEK, MARTIN KAUFMAN, CARL
ANDERSON, and DEREK PETERSON Included in this request is whether
information from any of Mr. Rushs telephones was intercepted or acquired by
any such devices during any investigation of between January 1, 2010 and
approved by a Court in either the Northern District of California and/or the
District of Nevada.

Case 4:15-cr-00454-HSG Document 34 Filed 07/14/16 Page 30 of 62

Therefore, based upon the foregoing preamble and definitions please provide us with
the following:
(a) Copies of all applications for any of the devices that were filed pursuant to 18
U.S.C., 3122.
(b) Copies of all orders authorizing use of any of the devices that were issued
pursuant to 18 U.S.C., 3123(a)(1) and (2) and 3123(b).
(c) In the event that any law enforcement agency utilized any of its own devices
when implementing an ex parte Court order permitting their use, copies of
each record that is required to be kept by 18 U.S.C., 3123(a)(3).
(d) Copies of all filings, orders and other required documentation with respect to
any Emergency pen register and trap and trace installation that was
implemented pursuant to 18 U.S.C., 3125.
(e) Copies of the reports that the Attorney general is required to file pursuant to
18 U.S.C., 3126, reflecting usage of the devices for the years 2010 thru
2015, inclusive.
12. Court-authorized and Unauthorized Electronic Surveillance Dan Rush
Cell Site Simulators, Digital Analyzers/Triggerfish/Stingray.
(a) Definition.
A cell site simulator or digital analyzer, sometimes utilizing the trade
names Triggerfish or Stingray, is a device that can electronically force a
cellular telephone to register its mobile identification number whenever a
cellular telephone is turned on within its range.
Ordinarily, when turned on, the cell phone communicates myriad data to the
nearest cell site provided by the phones service provider.
Instead, when active, the cell site simulator intercepts all of the same data that
will also actually be captured by the phone service providers cell site,
including the cellular phone number, each calls incoming or outgoing status,
the telephone number dialed, the cellular telephones serial number, the date,
time and duration of each call, and the location of the cellular telephone when
the call was connected.
Cell site simulators may also be capable of intercepting the contents of
communications.

Case 4:15-cr-00454-HSG Document 34 Filed 07/14/16 Page 31 of 62

(b) Requested Information.


In requesting the following information, we call your attention to the
Electronic Surveillance Manual, Procedures, Case Law and Forms prepared
by the Electronic Surveillance Unit, Office of Enforcement Operations,
Criminal Division, United States Department of Justice, P. 40-41, wherein it
was stated that court approval must be obtained for use of cell site
simulators:
Because section 3127 of Title 18 defines pen registers and trap and trace
devices in terms of recording, decoding or capturing dialing, routing,
addressing or signaling information, a pen register/trap and trace order
must be obtained by the government before it can use its own device to
capture the ESN or MIN of a cellular telephone, even though there will be
no involvement of the service provider. Id. at 41.
Therefore, please provide us with complete information about each use of a
cell site simulator in the investigation of this case that occurred between 2010
and the date of the Mr. Rushs arrest herein, including:

The date(s) of each such use of a cell site simulator;

The state and/or federal law enforcement agency that utilized it;

Whether each such use was authorized by a Court order;

A copy of each application for a Court order to employ it;

A copy of each Court order that authorized it;

A copy of any return submitted to the Court with respect to each


Court order;

With respect to each use of a cell site simulator without having


obtained a Court Order, please provide us with copies of all
information gleaned from each such use of a cell site simulator, as
well as the identity of the state and/or federal law enforcement
agency that employed it, and the names and identities of the
specific law enforcement agents and/or employees who
participated in each such use.

In complying with this request for information pertaining to use of cell site
simulators in the investigation of this case, we ask that you make specific
written inquiries to the FBI in Nevada and California, as well as to each
California or Nevada state law enforcement agency that participated in any
way in the investigation that resulted in Mr. Rushs indictment herein.
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13. Monitored Conversations in Which Mr. Rush did NOT Participate but WAS
MENTIONED.
The government has admittedly monitored conversations involving its
cooperating witnesses MARC TERBEEK, MARTIN KAUFMAN, CARL
ANDERSON, and DEREK PETERSON, all of whom were identified in the initial
Complain filed herein against Mr. Rush, as well as in the Application for Search
Warrant for Mr. Rushs residence at 468 W. MacArthur Boulevard, Oakland,
California.
The government has also provided us with copies of recordings and transcripts of
several consensually-monitored conversations between Mr. Rush and Terbeek,
and between Mr. Rush and

14. Evidence of Other Crimes, Wrongs or Acts.


Pursuant to Northern District of California Local Rule 16-1(c)(3), please provide
us with a summary of other crimes, wrongs or acts by defendant Rush which the
government intends to offer under Federal Rule of Evidence 404(b).
As stated in the Local Rule, your disclosure should be supported by documentary
evidence or witness statements in sufficient detail that Mr. Rush may effectively
challenge and the Court may rule on the admissibility of the proffered evidence.

15. Co-Conspirator Statements.


Pursuant to Northern District of California Local Rule 16-1(c)(4), please provide
us with a summary of any statement by any witness that the government intends
to offer into evidence pursuant to Federal Rule of Evidence 801(d)(2)(E).
Each such summary should be in sufficient detail that Mr. Rush may effectively
challenge and the Court may rule of the admissibility of that statement.
We further request that you comply with this request at an early stage in your
discovery compliance, because of the vast numbers of statements gleaned from a
variety of individuals during the lengthy investigation that led to the filing of the
instant indictment.
We expect that given the revelations in the initial Complaint filed against Mr.
Rush herein, and in the Application for a Search Warrant for Mr. Rushs
residence, there are at least four (4) cooperating witnesses who have been actively
involved for between 1 and 4 years in the investigation, and that they have
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engaged in myriad conversations with Mr. Rush and other alleged


co-conspirators, some recorded and others not recorded. As a result, we expect
that the government will seek to introduce portions these conversations into
evidence at trial, and the defense will want to make timely and detailed objections
thereto.
We expect to file a motion or motions to request that the Court make a pretrial
ruling upon their admissibility. Although we understand that Courts often defer
such a ruling and admit such co-conspirator statements de bene, subject to a
later motion or ruling to strike them in the absence of adequate proof of the
charged conspiracy, we believe this case is an appropriate one for the Court to
exercise its discretion to make a pretrial ruling on their admissibility.

16. Attorney-Client Privilege.


The impact of active, secret cooperation with government prosecutors and law
enforcement agents in the investigation of this case for almost seven (7) months by Mr.
Rushs attorney MARC TERBEEK has engendered myriad issues pertaining to the
attorney-client privilege. It is therefore incumbent upon undersigned defense counsel to
carefully analyze all communications between the Terbeek and Mr. Rush that were
disclosed in any way by Mr. Terbeek to government investigators and prosecutors.
However under the unique circumstances of this case, the inquiry is also necessarily
much broader. It is defendant Rushs position that every revelation and disclosure by
Terbeek to ANY THIRD PARTY of the substance of ANY statement made to him by
Mr. Rush is presumptively subject to the attorney-client privilege of non-disclosure,
including:

Communications by Terbeek to government agents and prosecutors of the


substance of statements made by Rush to Terbeek;

Communications by Terbeek to his own lawyers of the substance of statements


made by Rush to Terbeek;

Communications by Terbeek of the substance of statements made by Rush to


Terbeek to any third party other than his own lawyers, government agents and
prosecutors that were not previously authorized by Mr. Rush, including, but not
limited to Carl Anderson, Martin Kaufman and Derek Peterson.

Therefore, please provide us with copies of all oral and written statements known to the
government, wherein MARC TERBEEK disclosed to any third party any statement(s)
that Mr. Rush had made directly to Terbeek under circumstances in which no third party
was present during the Rush/Terbeek conversation. Such information is essential to
enable Mr. Rush to comply with the requirement of Rule 12(b)(3)(C) that any motion for
suppression of evidence must be made before trial.
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Please provide us with letters, memoranda, directives and writings of every nature
whatsoever that pertain to or otherwise address requirements and efforts by investigators
and attorneys involved in any way with the investigation and prosecution of this case, to
protect and to avoid any violation of the attorney-client privilege that existed with respect
to all communications between Mr. Rush and government cooperating witness Marc
Terbeek.
We previously requested, and you have agreed to provide copies of the Application for
Search Warrant (including supporting affidavit), and Return of Service for the search that
was conducted of the Law Offices of Marc Terbeek in January 2015. To date these have
not been given to us, and we therefore repeat that request herein.

17. Evidence of Vindictive Prosecution.


It is defendants belief that he was targeted for investigation and prosecution herein
because he exercised his First Amendment rights as a long-time supporter of medical
marijuana legislation in California and elsewhere. His efforts were directly, vigorously,
and actively opposed over a period of years by former United States Attorney, Melinda
Haag.
Upon information and belief, (then) U.S. Attorney was personally involved in retaliating
against Mr. Rush because of his outspoken efforts to further the movement for medical
cannabis legislation. She apparently authorized the investigation that led to the instant
charges, and investigation in which she gave the equivalent of stay out of jail free cards
to a several criminal violators in return for participating in an FBI orchestrated effort to
attempt to involve Mr. Rush in crimes that they manufactured under her guidance.
As a result, Ms. Haag met her intended goal by signing-off on the instant Rush
indictment within the last 30 days of her tenure in that office. Therefore we request that
we be provides with the following discovery into the prosecutions charging decision
herein:

Copies of all memoranda and orders to initiate the investigation herein against
Mr. Rush that were initiated or approved by the United States Attorney.

Copies of all memoranda and orders initiated or approved by the United States
Attorney reflecting in any way all benefits that were extended to the governments
cooperating witnesses, including, but not limited to Derek Peterson, Carl
Anderson, Martin Kaufman, and Marc Terbeek.
Included in this term benefits are any monetary payments offered and/or made to
such cooperating witnesses, and any agreements not to prosecute such witnesses
for known criminal violations and/or agreements not to file civil forfeiture actions

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or otherwise exact penalties for any violation of federal law by any of these
witnesses.

18. Exculpatory and Impeachment Evidence, Brady and Giglio.


Although we understand that as highly experienced and ethical prosecutors, you are well
aware of your obligations to provide us with exculpatory and impeaching evidence that
comes under the broad canopy of Brady and Giglio. Nevertheless we feel it is incumbent
upon us to include such matters within the instant discovery request, and in so doing call
your attention to the requirements set forth in 9-5.001 of the United States Attorneys
Manual, and the summary thereof provided in the Memorandum for Prosecutors
Regarding Criminal Discovery, dated January 4, 2010 by Deputy Attorney general
David W. Ogden.
In accordance with these documents, we specifically request that in determining the
discovery to provide to us, that you review the following:

Investigative Agency Files, including those of the FBI, DEA, DHS, FBI and IRS,
and those of each law-enforcement and prosecutorial agency of the States of
California and Nevada that assisted in the investigation of this and any related
case.
In so doing, please review the entire investigative file, including for example
documents such as FBI Electronic Communications (ECs), inserts, emails, etc.
Please also discuss with the investigative agency whether files from other
investigations or non-investigative files such as confidential source files might
contain discoverable information, and review those files and/or relevant portions
thereof.

Confidential Informant Files, regardless of whether the subject is referred to as a


Confidential Informant (CI), Confidential Witness (CW), Confidential
Human Source (CHS), or Confidential Source (CS).
The entire informant/source file, not just the portion relating to the present case,
including all proffer, immunity and other agreements, validation assessments,
payment information, and other witness impeachment information should be
included within this review.
Also included within the scope of this request is the substance of all oral
promises, inducements, and/or rewards made to any witness by any
law-enforcement agent and/or prosecutor, and any writing that mentions or
memorializes any such promise, inducement or reward.

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Evidence and Information Gathered During the Investigation.


Although the Ogden Memorandum suggests that this obligation can be met by
choosing to make the voluminous information available to the defense, we ask
that it be indexed in some readily searchable form as opposed to a document
dump.

Documents or Evidence Gathered by Civil Attorneys and/or Regulator Agency in


Parallel Investigations.

Substantive Case-Related Communications, including, but not limited to those


occurring among prosecutors and/or agents; between prosecutors and/or agents
and witnesses and/or victims; and between victim witness coordinators and
witnesses and/or victims, and such reviews should include a determination as to
whether the entire communication or only a part of it is discoverable.
Such communications may be memorialized in emails, memoranda, or notes that
include factual reports about investigative activity, factual discussions about the
relative merits of evidence, factual information obtained during interviews or
interactions with victims/witnesses, and factual issues related to credibility.
If any prosecutor or agent in this case has received material exculpatory
information during a conversation with another agent, prosecutor and/or witness,
please provide a detailed written summary of such information.
Please also have candid conversations with investigating agents in this case for
potential Giglio issues.

Potential Giglio Information Relating to Non-Law Enforcement Witnesses and


Declarants Whose Testimony Will be Governed by Federal Rule of Evidence 806.
Such evidence may include prior inconsistent statements (including inconsistent
attorney proffers) and statements or reports reflecting witness statement
variations.
Such evidence should also include all benefits provided to witnesses, and all
benefits provided to third parties at the request of any witness, including, but not
limited to:
Dropped or reduced charges;
Immunity from prosecution;

15

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Expectations of downward departures or motions for reduction of


sentence;
Assistance in a state or local criminal proceeding;
Considerations regarding forfeiture of assets;
Stays of deportation or other immigration status considerations;
S-Visa;
Monetary benefits;
Non-prosecution agreements;
Letters to other law enforcement officials, including state prosecutors,
judges and parole boards setting forth the extent of a witnesss assistance
or making substantive recommendations on the witnesss behalf;
Relocation assistance;
Consideration or benefits to culpable or at risk third-parties;
Other known conditions that could affect the witnesss bias or prejudice,
including animosity toward Mr. Rush, animosity toward a group of which
the Mr. Rush is a member or affiliated, relationship with a victim or
known but uncharged criminal conduct (that may provide an incentive
to curry favor with any prosecutor or law-enforcement agent;
Prior acts under federal Rule of Evidence 608;
Prior convictions under Federal Rule of Evidence 609;
Admitted or known substance abuse or mental health issues, or other
issues that could affect the witnesss ability to perceive and recall events.
19. Agents Notes.
In complying with this discovery request, please provide us with copies of the
agents raw notes of interviews and observations (including visual surveillance),
whether handwritten or recorded on a digital device.

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20. Recorded witness interviews.


If any witness interviews were recorded by law enforcement agents and/or
prosecutors, please provide us with copies of the recorded interviews and of any
transcripts of such interviews that may have been subsequently prepared.

Thank you for your compliance with these requests. We will certainly make ourselves
available to review them with you if there are any of them that you feel need not be
produced, are unwarranted or not otherwise not required.
Sincerely,

Alan Caplan
William Osterhoudt
Alan Caplan and William Osterhoudt
Co-counsel for Defendant
DAN RUSH

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STATUS STATEMENT
JULY14, 2016
___________________

EXHIBIT C

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STATUS STATEMENT
JULY14, 2016
___________________

EXHIBIT D

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U.S. Department of Justice


United States Attorney
Northern District of California

11th Floor, Federal Building


450 Golden Gate Ave., Box 36055

(415)436-7200
FAX: (415) 436-7234

San Francisco, CA 94102-3495

May 23, 2016

VIA FEDERAL EXPRESS


William L. Osterhoudt, Esq.
135 Belevedere St.
San Francisco, CA 94117
Re:

Alan P. Caplan, Esq.


1336 Villa Barolo Avenue
Henderson, NV 89052

United States v. Daniel Rush


CR-15-0454-HSG

Dear Counsel:
Enclosed please find discovery in the above-referenced matter. We have enclosed with
this letter an external hard drive and two compact discs. Below is a more specific description as
to the items we are producing today.
A.

Information on Hard Drive

The hard drive contains materials in the following 10 categories:


(1)

Copies of documents seized during the search warrant executed at 468 West
MacArthur Blvd. in Oakland. These items, which are organized by the locations
from which they were seized, bear Bates prefixes 1B35, 1B36, 1B37, 1B37,
1B38, 1B39, 1B40, 1B42, 1B43, 1B44, 1B45, 1B46, 1B47, 1B48, 1B49,
1B50, 1B53, 1B61, 1B62, 1B63, and 1B64.

(2)

Government reports regarding the investigation, including 302s and other


memoranda describing the investigation. These documents bear Bates labels
FBI-00003 to -01276.

(3)

Documents relating to AMSG and stock certificates, which have been Bates
labeled DR-000152 to -000312.

(4)

Additional documents seized from the search warrant executed at 468 West
MacArthur Blvd. These documents have been labeled DR-000313 to -001154.

Case 4:15-cr-00454-HSG Document 34 Filed 07/14/16 Page 45 of 62


Letter to Counsel
May 23, 2016
Page 2
(5)

Criminal history information regarding the defendant. These documents have


been Bates labeled DR-001155 to -001215.

(6)

Warrant, affidavit, and related documents authorizing the search warrant at 468
West MacArthur Blvd. These documents have been Bates labeled DR-001216 to
-001284.

(7)

Documents obtained relating to Rushs credit activity. The documents obtained


from Equifax bear Bates labels EQF-0001 to -0034; from Experian labels EXP0001 to -0048; and from Transunion labels TRU-0001 to -0014.

(8)

E-mails involving communications with the defendant. Karl Anderson gave these
documents to the government early in the investigation, and they bear labels
COPENHAGEN-000001 to COPENHAGEN-000363.

(6)

Documents obtained from Instituto Laboral de la Raza. These documents bear


Bates label IDLR-0001 to -0285.

(7)

Financial records involving activities by Rush and Marc Terbeek. These


documents include Bank of America statements regarding Terbeeks activities in
conjunction with Rush, as shown in records from Bank of America (MTCARD0001 to -0231 and MT BoA-0001 to -0303), United Labor Bank (ULB-0001 to 0398), and Wells Fargo (WELLS FARGO-00001 to -0398).

(8)

Documents obtained from UFCW pursuant to grand jury subpoena. These


documents bear Bates labels UFCW2-0001 to -2002 and, for those documents
provided to us electronically, UFCWESI-000001 to -884062.

(9)

Documents regarding Rush obtained from Old Republic Title Company, which
bear Bates labels ORT1, ORT2, ORT3, ORT5, ORT6, ORT7, and ORT 129.

(10)

Documents obtained from Pacific Gas & Electric regarding Rushs property.
These documents bear Bates labels PG&E-0001 to -0306.

The password for the Checkpoint encryption on the hard drive is as follows: 1Dojeagle!
The hard drive contains searchable PDFs, with the PDFs bearing the Bates number of the first
page in the file. Attachments to the PDF have been maintained, and we have also included a .csv
file that contains the metadata for the electronic records for which we had metadata.
B.

Information in Compact Discs

We are also producing two separate compact discs. The first compact disc, which has
been Bates labeled DR-001285, contains information seized from computers during the search of
468 West MacArthur Blvd. This CD contains a summary of the information seized by the
government, although the underlying devices have been returned to you already.

-2-

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Letter to Counsel
May 23, 2016
Page 3

The second CD contains additional information in the following five categories:


(1)

Images of text messages between Terbeek and Rush, which have been Bates
labeled DR-001286 to -001456.

(2)

Photographs of surveillance done at Pho MeKong on June 22, 2015. These


photographs have been Bates labeled DR-001457 to -001510.

(3)

Photographs of the search warrant executed at 468 West MacArthur Blvd. These
documents have been Bates labeled DR-001511 to -001623.

(4)

Photographs of surveillance taken in the vicinity of 8th and 12th streets in


Oakland. These documents have been Bates labeled DR-001624 to -001638.

(5)

A package mailed from Marc Terbeek to an undercover agent, which is dated


January 15, 2013. These documents have been Bates labeled DR-001639 to 001649.

C.

Additional Information

We are preparing several additional items for production that we originally meant to send
today, but we ran into technical difficulties earlier today. These materials include the search
warrant affidavits relating to the cell phones, toll records, information obtained from Rushs cell
phones, and various other documents. We intend to produce these to you tomorrow, and we will
include a description of these items for your review at that time.
We are also preparing a substantive response to your letter dated May 5, 2016. Although
we have now produced the vast majority of the items requested in the letter, there will be several
items that we believe need to be addressed in a more substantive fashion. I will send this letter to
you shortly, but we wanted to make sure we continued producing discovery as quickly as
possible, in order to keep the case moving forward.
Should you have any questions regarding the foregoing, please feel free to contact me at
(415) 846-7216.
Very truly yours,
BRIAN J. STRETCH
United States Attorney
/s/
JOHN H. HEMANN
ADAM WRIGHT
Assistant United States Attorneys
-3-

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STATUS STATEMENT
JULY14, 2016
___________________

EXHIBIT E

Case 4:15-cr-00454-HSG Document 34 Filed 07/14/16 Page 48 of 62

U.S. Department of Justice


United States Attorney
Northern District of California

11th Floor, Federal Building


450 Golden Gate Ave., Box 36055

(415)436-7200
FAX: (415) 436-7234

San Francisco, CA 94102-3495

May 24, 2016

VIA FEDERAL EXPRESS


William L. Osterhoudt, Esq.
135 Belevedere St.
San Francisco, CA 94117
Re:

Alan P. Caplan, Esq.


1336 Villa Barolo Avenue
Henderson, NV 89052

United States v. Daniel Rush


CR-15-0454-HSG

Dear Counsel:
Per my letter from yesterday, enclosed please find additional discovery in the abovereferenced matter. We have attached three compact discs to this letter, and we will be sending
you each a copy of these discs. I am also enclosing two compact discs produced yesterday in the
mailing to Mr. Caplan, per his request.
This production includes documents and information that has been Bates labeled DR001651 to -002508. More specifically, these materials include the following:
(1)

Warrant, affidavit, and related documents authorizing the search of two cellular
phones belonging to Mr. Rush. These documents have been Bates labeled DR001651 to -001763.

(2)

Documents obtained from the city of Berkeley regarding Mr. Rushs role on the
Medical Cannabis Commission. These documents have been Bates labeled DR001764 to -001870.

(3)

A collection of key documents, in chronological order, describing the


investigation. Although these materials have been produced in other forms, we
thought it would be helpful for you to see these documents in an assembled form.
These documents bear Bates labels DR-001871 to -002368.

(4)

A copy of the iPhone with phone number 202-213-4166 (IMEI


013999001275906), which is on a CD bearing Bates label DR-002369.

Case 4:15-cr-00454-HSG Document 34 Filed 07/14/16 Page 49 of 62


Letter to Counsel
May 24, 2016
Page 2
(5)

A copy of the iPhone with phone number 510-301-1281 (IMEI


358811058960392), which is on a CD bearing Bates label DR-002370.

(6)

A collection of e-mails involving Martin Kaufman and Mr. Rush. These


documents have been Bates labeled DR-002371 to -002748.

(7)

A collection of e-mails involving Derek Peterson and Mr. Rush. These


documents have been Bates labeled DR-002749 to -002508.

The password for the Checkpoint encryption on the first CD is cr15-0454. There is no
password as to the other two new CDs, which contain information from Rushs two iPhones. As
with the production yesterday, we are producing these materials pursuant to the Protective Order.
We believe this is necessary given the amount of personal information, as well as information
regarding cooperating defendants, contained in these records.
Should you have any questions regarding the foregoing, please feel free to contact me at
(415) 846-7216.
Very truly yours,
BRIAN J. STRETCH
United States Attorney
/s/
JOHN H. HEMANN
ADAM WRIGHT
Assistant United States Attorneys

-2-

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STATUS STATEMENT
JULY14, 2016
___________________

EXHIBIT F

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STATUS STATEMENT
JULY14, 2016
___________________

EXHIBIT G

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