SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA CRIMINAL DIVISION FELONY BRANCH

Transcription

1 SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA CRIMINAL DIVISION FELONY BRANCH UNITED STATES OF AMERICA v. MATTHEW HESSLER, CHRISTOPHER LITCHFIELD, DANIEL MELTZER DYLAN PETROHILOS, CALY RETHERFORD, and CAROLINE UNGER Defendants. Case Nos. 0 CF 0 CF 0 CF 0 CF 0 CF 0 CF Chief Judge Robert E. Morin Trial: June, 0 Next Event: May, 0 Trial Readiness Hearing (Continued) REPLY TO GOVERNMENT S OPPOSITION AND MOTION FOR ADDITIONAL FINDINGS OF BRADY VIOLATIONS FOR NOT DISCLOSING AN ADDITIONAL SIXTY-NINE PROJECT VERITAS RECORDINGS AND ADDITIONAL SANCTIONS, INCLUDING DISMISSAL Comes Now, Dylan Petrohilos Matthew Hessler, Christopher Litchfield, Clay/Caly Retherford, Daniel Meltzer and Caroline Unger (collectively, Defendants ), by Counsel, pursuant to D.C. Super. Court R. and, hereby replies to the Government s Opposition to the Motion to Dismiss, and we now, in light of the Government s additional Brady violations, request the Court find additional Brady violations and grant Sanctions in the form of dismissal of the indictment, and for its Motion, states the following: Our adversarial system is premised on the belief that [s]ociety wins not only when the guilty are convicted but when criminal trials are fair. Brady v. Maryland, U.S. at, S.Ct.. In Brady, the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or

2 to punishment, irrespective of the good faith or bad faith of the prosecution. Favorable information is any information that might help the defense attack the Government s case or mount an affirmative defense. In determining what must be disclosed under Brady the [prosecution s] guiding principle must be that the critical task of evaluating the usefulness and exculpatory value of the information is a matter primarily for defense counsel, who has a different perspective and interest from that of the police or prosecutor. Zanders v. United States, A.d, - (D.C. 0). Accordingly, while a finding of bad faith should result in nearly universal dismissal, a court may still dismiss if the conduct is perceived as willful or with a reckless disregard for the requirements of Brady, which places an obligation on the prosecutor to: ) learn of potential Brady in the possession of the prosecution team, see Kyles v. Whitley, U.S., - (); ) disclose the information with no time for strategic delay, Biles, A.d at ; and, ) have systems in place to ensure that it was alerted to [exculpatory] information. Vaughn v. United States, A.d, (D.C. 0). Factors relevant to a recklessness inquiry include timing of Brady disclosures, United States v. Chapman, F.d, (th Cir. 00) ( the dates on many of the subsequently disclosed documents post-date the beginning of trial ); representations by the Government of compliance with discovery obligations, id. ( The AUSA repeatedly represented to the court that he had fully complied with Brady and Giglio, when he knew full well that he could not verify these claims. ); and failure to provide the Court and defense with complete information or to correct misapprehensions of the Court. Vaughn, A.d at ( The Government not only failed to give the defense (or the court) accurate or complete information, it then stood by at trial

3 and allowed the defense s ignorance and the court s erroneous understanding of the pertinent facts to persist. ). See Chapman, F.d. at. All of the above factors are present here. The Government s most recent disclosure comes less than one week before trial, the Government again failed to give accurate or complete information to defense counsel and the Court, and already went through two other trials knowing it had Brady evidence in its possession. THE GOVERNMENT S UNDERSTANDING OF BRADY EVIDENCE IS FLAWED On May 0, 0, the Government sent an to the Chambers of the Honorable Chief Judge Morin in an attempt to explain why sixty-nine additional Project Veritas recordings were not disclosed to defense. In that , the following is noted: I focused my review of the recordings on the following: () did the recording contain information about the ACB[Anti-Capitalist Block]; () did the recording contain statements by or conduct of defendants in this case; () was there anything on the recording that could constitute evidence of a defendant s knowledge, intent, purpose for the charged conduct (innocent or otherwise); and () did the recording contain Brady information for the charged conduct. Although this contains reasons for the Government recklessly not disclosing sixtynine additional Project Veritas recordings, a majority of which are Brady violations, the instant motion focuses on another misrepresentation to the Court. Counsel has not attached the due to privacy concerns. Further, it is unnecessary because the Court was copied on the . Other recordings may have violated Brady but due to time constraints, Counsel is only focused on one and will allude to the others on the record during the Trial Readiness hearing tomorrow morning.

4 THE GOVERNMENT INTENTIONALLY FAILED TO DISCLOSE THIRTY-FIVE VIDEOS FROM THE ACTION CAMP Yet again, the Government provided false information to the Court. In Vaughn, the District of Columbia Court of Appeals overturned a conviction for Aggravated Assault and Assault on a Law Enforcement Officer for the same conduct as the instant matter. In Vaughn, the Government failed to timely provide the defense with Brady information regarding one of its witnesses. The Court of Appeals overturned the conviction based on the fact that the Government did not disclose to the Court the entirety of Brady evidence in its possession. The Government, in its case in chief, plans to introduce evidence that an undercover officer attended an action camp that took place on several days from January -, 0. During the first trial in this matter, Officer Adelmeyer testified that he did not remember faces of people at the action camp. So much so, that the Judge precluded him from testifying. On April, 0, during a hearing to determine whether co-conspirator statements heard by Officer Adelmeyer could come in as evidence, Ms. Kerkhoff begins to discuss a meeting Officer Adelmeyer attending on January. See, April, 0 Hr g Transcript at :-:, attached hereto as Exhibit. Counsel for Mr. Litchfield, then alerts the Court that Judge Leibovitz previously precluded Officer Adelmeyer regarding any statements made at a spokes council meeting on January th and then again on January, 0. See, April, 0 Hr g Transcript at 0:- :, attached hereto as Exhibit. Ms. Kerkhoff retorted that Officer Adelmeyer attending an action camp that was going on for several days. See, April, 0 Hr g Transcript at :- : attached hereto as Exhibit.

5 The following back and forth ensued regarding the action camp: No, no, it took me a while to figure out you were speaking about two different things. She is not speaking about the spokes-council meeting. She was speaking about the -- purportedly, a meeting that occurred before that. Did you understand that when you were looking at the video? MS. BRADSHAW: There's no video of this. What is it? MS. BRADSHAW: This -- this is just -- we're going off the paper description and the testimony that happened and Ms. Kerkhoff's representations. I'm a little confused here, Your Honor. The designations are as content, out of spokescouncil meeting, attending - Right. We have that clarified now. So is there -- is there a video or a tape of this or what is there? No, Your Honor. The officer attended. The officer reported back to his officials. This is in part where -- as there was testimony, they received information from their undercover in advance of January 0th, that individuals were anticipating breaking property during the anticapitalist block, and it is documented in his after-the-fact notes that he took. So live testimony? Correct. It's live testimony. The Government, at the time of making that affirmation, knew that it was in possession of thirty-five videos from the action camp that took place over the course of several days. Since

6 one of the Government s factors for determining whether evidence should be disclosed was codefendant involvement, it is certainly relevant, material, and exculpatory to the defense that there were videos of this action camp, and without any appearance from the co-defendants in this matter. Especially because Ms. Kerkhoff proffered to the Court that co-defendants were present at the action camp. Like in Vaughn, had the Court been alerted to the lack of codefendant attendance over the days this event was going on, it would have likely precluded those statements from being entered into evidence. Also analogous to Vaughn, the government unilaterally decided that evidence that directly controverts the government s witness s account of what happened at the action camp would not help prepare a defense or was not favorable to the defense and therefore not discoverable under Rule or Brady. Additionally, the content of the action camp discussions is relevant, material, and exculpatory. As the government admitted in its May 0, 0 to the Court, many of these videos from the action camp at American University involved discussions of de-escalation tactics. So if Officer Adelmeyer did see co-defendants at the action camp, it is disturbing that the government is taking the position that videos showing co-defendants teaching other codefendants how not to engage in violent protest is irrelevant to a case about violent protests. The Government is in possession of at least videos that show that this action camp had many facets and that attendance at the camp did not mean that a defendant conspired to riot. But for the recent uncovering of Brady violations by the Government and its agents, they would not have informed defense counsel they were in possession of this exculpatory evidence.

7 THE GOVERNMENT MISLED THE COURT AND FAILED TO COMPLY WITH A COURT ORDER REGARDING THE PROJECT VERITAS VIDEOS The defense has also learned since the last hearing that the government misled the Court and the defense and failed to comply with a Court Order compelling production of the entirety of Project Veritas videos in the government s possession. In the same April th hearing as discussed above, the Court heard argument regarding a Motion to Compel discovery filed by this trial group. At the time, the defense moved to compel the original Project Veritas video that it had received in discovery the only video the defense knew existed. The Court began the argument by asking the government for its position on what it had in its possession and what was available to the defense counsel: Now, I'd like to deal next is the motion to compel discovery.... And that primarily has to do with the proffer of exhibit -- of a video of the planning meetings; is that correct? DEFENSE COUNSEL: That's correct, Your Honor. What don t I -- do you mind if I get the government's position on what they have and what's available to them or not before you argue? Yes, Your Honor. As outlined and as testified to by the detective during the first trial, the government -- the Metropolitan Police Department requested from a number of sources where we got information they may have videos, such as news organizations or in this case, the Veritas group that we had observed portions of edited video. Detective Cumberson contacted the group and asked if they would be willing to provide unedited video. They provided unedited video. We posted the video. It's not the original. We did not

8 have a witness. We did not take any testimony. See April, 0 Hr g Transcript at :-:, attached as Exhibit. Here, the government misled the Court and the defense counsel to believe that it had received only one video and that the government had posted the video to the discovery portal. As we have now learned, the government actually received video and audio recordings from Project Veritas, but only posted a small fraction of them to the discovery portal. The government proceeded to discuss two edits made to the January, 0 planning meeting video, never revealing the existence of the third redaction or the other videos. The government concluded: They have exactly what we have as I've described. Id. at :-. Counsel for Mr. Hessler continued to press the issue, requesting the original video files that were introduced to the government. Id. at :-. The Court, unaware of the existence of additional video files, pushed back. MR. CLENNON: Well, Your Honor, I think that we're entitled to the original video files that were introduced to the government. You're misunderstanding what the government is saying. They have [been] representing that those have been produced to you. Am I misunderstanding what the government's saying? They've indicated that they've produced that to you. Now, if you're talking about the original, they appear to be in the possession of a third party, unless I'm misunderstanding something. Id. at :-. The government remained silent, failing again to correct the misunderstanding that it had many more videos in its possession from Project Veritas that had not been produced. At the conclusion of the argument, despite these misleading positions from the government, the Court ruled broadly:

9 I'm going to order the uncropped or the cropped portions be turned over to the defense. And again -- let me just put a formal order here and it's not to suggest -- I doubt the government's representations. It's -- you are officers of the Court, but I am ordering you, the entirety of whatever is in the government's possession to be turned over to the defense. Id. at :-0. It is clear on the face of this Order that the Court intended the government to produce all of the videos and audio recordings received from Project Veritas. But if there were any doubt about the breadth of this Order, the government should have at that point requested a clarification that it was not required to produce other Project Veritas videos from events it deemed to be irrelevant to the case. Although the defense would have objected, at least all parties could have addressed this issue with at least a few months before trial. Instead, the government remained silent. Based on the government s representations today, it is clear that the government did not produce the entirety of whatever is in the government s possession. Rather, it selectively produced seven videos in response to this Order. Four of these videos were unedited videos of the January, 0 planning meeting. Three new videos, which had never before been disclosed, were also produced from pre-planning videos. Although the government attempted in an to defense counsel to distinguish these events, they were filmed at the same location on the same day by the same person and provided by the same source, Project Veritas. Even with this disclosure, the government still failed to produce (or even disclose) the remaining Project Veritas videos. THE GOVERNMENT CANNOT CURE ITS RECKLESS CONDUCT The Inauguration Protest occurred on January 0, 0, over months ago. The

10 Superseding Indictment in this matter was returned over a year ago. The Government has succeeded in misleading over 00 co-defendants, their attorneys, and three Honorable Superior Court Judges to believe there were only seven videos in its possession from Project Veritas. Only by Order of the Court and more recently, its own disclosures, we now know the truth, that the Government withheld additional recordings by Project Veritas and altered others. The fairness of these proceedings are now called into question and cannot be cured through continuance or other means. The defense has lost any opportunity it had to further investigate the newly discovered evidence and provide its clients with a fair trial. Over time, memories of witnesses fade, witnesses have moved, all of which affect defense investigation strategy. When defense counsel interviewed the maker of the original planning meeting video, there were many answers of I don t recall. When Officer Adelmeyer testified at the November trial, he also answered I don t recall. When Detective Pemberton testified during the trial earlier this month, he answered I don t recall. The Government s plethora of witnesses who don t recall facts occurring over a year ago speak to the fact that defense has lost any opportunity to investigate the action camp and its infiltrators. THE ONLY APPROPRIATE SANCTION IS DISMISSAL The Supreme Court has held that when the State suppresses or fails to disclose material exculpatory evidence, the good or bad faith of the prosecution is irrelevant: a due process violation occurs whenever such evidence is withheld. Illinois v. Fisher, 0 U.S., - (00). See, Vaughn, A.d at ( If the information was favorable, suppressed, and material, then reversal is required, irrespective of the good faith or bad faith of the prosecution. ) (quoting Brady, U.S. at ). See also United States v. Mitchell, F.d

11 , (d Cir. 00) ( [A]s a legal matter, the question of good faith versus bad faith is a distinction without a difference in the Brady context. ). For instance, the Court of Appeals in Vaughn wrote: [W]e are left with many questions about the Government s behavior in this case, including: () How could the Government have so misconstrued the findings of the OIA investigation as memorialized in the full OIA Final Report as ultimately unrevealing regarding Officer Childs credibility? () How could the Government have failed to realize at trial that it had not given the court the full OIA Final report, particularly when the trial court specifically asked if the five-page copy it had in hand was the complete report? () How could the Government have made the representations it did about the consequences of the Inmate A incident or have allowed Officer Childs to testify without qualification about his lack of notice or understanding of those consequences, in light of the information contained in OIA Investigator Collins's sworn affidavit? But these questions ultimately go to whether the Government acted in bad faith, which, as we noted at the outset, is irrelevant to the issue raised before this court: whether the Government violated its constitutionally imposed disclosure obligations. The question of bad faith is not relevant here. Nor is the question of the motives behind the late disclosure. The question for the Court is what appropriate remedy will level the scales of justice. Mr. Petrohilos, Mr. Litchfield, Mr. Rutherford, Ms. Unger, and Mr. Meltzer have all had their constitutional right to due process violated by the United States Government and its Agents. The misconduct goes deeper than clipping one video. The Government has now provided the Court with at least additional reasons why the Indictment should be dismissed. Respectfully submitted, s/ Andrew O. Clarke (DC Bar # ) ANDREW CLARKE LAW, PLLC I Street NW, Suite Washington, DC 000 (0)0- a.clarke@aclarkelaw.com Counsel for Dylan Petrohilos

12 s/ Mark B. Sweet (DC Bar # 0) Michelle Bradshaw (DC Bar # ) WILEY REIN LLP K Street NW Washington, DC msweet@wileyrein.com mbradshaw@wileyrein.com Counsel for Christopher Litchfield s/ Charles P. Murdter (DC Bar # 0) 0 Pennsylvania Avenue NW Suite 00 South Washington, D.C. 000 (0) - murdterlaw@hotmail.com Counsel for Caroline Unger s/ Cary Clennon (DC Bar # ) P.O. Box 0 Washington, D.C. 00 (0) -0 clennonlegal@hotmail.com Counsel for Matthew Hessler s/ Sharon Weathers (DC Bar # ) D. Street, N.W., Suite 00 Washington, D.C sweathers@verizon.net Counsel for Clay/Caly Retherford s/ Mark L. Goldstone, Esq. Bar # Dunster Lane Rockville, Maryland 0 (0) - mglaw@comcast.net Counsel for Daniel Meltzer

13 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Motion for Sanctions was sent via case file express to Jessie K. Liu, United States Attorney, and all remaining co-defendants in this case on this 0 th day of May 0. /s/ Andrew O. Clarke Andrew O. Clarke, Esq.

14 SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA CRIMINAL DIVISION FELONY BRANCH UNITED STATES OF AMERICA v. MATTHEW HESSLER, CHRISTOPHER LITCHFIELD, DANIEL MELTZER DYLAN PETROHILOS, CALY RETHERFORD, and CAROLINE UNGER Defendants. Case Nos. 0 CF 0 CF 0 CF 0 CF 0 CF 0 CF Chief Judge Robert E. Morin Trial: April, 0 Next Event: April, 0 Trial Readiness Hearing [PROPOSED] ORDER Upon consideration of Defendants Matthew Hessler, Christopher Litchfield, Daniel Meltzer Dylan Petrohilos, Clay/Caly Retherford and Caroline Unger s Motion for Sanctions in this matter, it is this day of, 0, ORDERED that the Government s Superseding Indictment Against Matthew Hessler, Christopher Litchfield, Daniel Meltzer, Dylan Petrohilos, Clay/Caly Retherford, and Caroline Unger is dismissed with prejudice. The Honorable Robert E. Morin Superior Court of the District of Columbia

15 EXHIBIT

16 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CRIMINAL DIVISION : UNITED STATES OF AMERICA : : v. : : MATTHEW HESSLER : CHRISTOPHER LITCHFIELD : DYLAN PETROLHILOS : CALY RETHERFORD : CAROLINE UNGER, : : Defendant : : Criminal Action No. 0 CF 0 CF 0 CF 0 CF 0 CF Washington, D.C. Friday, April, 0 0 The above-entitled matter came on for HEARING before the Honorable Robert Morin, Chief Judge, in Courtroom Number, commencing at : p.m. THIS TRANSCRIPT REPRESENTS THE PRODUCT OF AN OFFICIAL REPORTER, ENGAGED BY THE COURT, WHO HAS PERSONALLY CERTIFIED THAT IT REPRESENTS HER NOTES AND RECORDS OF TESTIMONY AND PROCEEDINGS IN THE CASE AS RECORDED. APPEARANCES: On behalf of the Government: Jennifer Kerkoff, Esquire Amed Basset, Esquire Rizwan Querishi, Esquire Assistant United States Attorney On behalf of the Defendant: Michelle Bradshaw, Esquire Mark Sweet, Esquire Sharon Weathers, Esquire Cary Clennon, Esquire (Defendant Litchfield) (Defendant Litchfield) (Defendant Retherford) (Defendant Hessler)

17 Andrew Clarke, Esquire Charles Murdter, Esquire (Defendant Petrolhiles) (Defendant Unger) Mahalia M. Davis, RPR Official Court Reporter (0) - 0

18 PROCEEDINGS THE DEPUTY CLERK: Calling the United States versus Matthew Hessler, 0 CF -- I'm sorry,, calling co-defendant matter, United States versus Christopher Litchfield, 0 CF, calling co-defendant matter, United States versus Dylan Petrolhilos, 0 CF, co-defendant matter with Caly Retherford, 0 CF and co-defendant matter with Caroline -- United States versus Caroline Unger, 0 CF. Okay. Good afternoon, Your Honor, Jennifer Kerkhoff for the United States. MR. BASSETT: United States. MR. QUERISHI: the United States. Good afternoon, Amad Bassett for the Good afternoon, Rizwan Querishi for MR. SWEET: Mark Sweet for Mr. Litchfield. 0 Litchfield. MS. BRADSHAW: MS. WEATHERS: Michelle Bradshaw for Mr. Sharon Weathers for Quade Retherford, also known as Caly Retherford. MR. CLENNON: Cary Clennon for Mr. Hessler, who's present. who is present. MR. CLARKE: Andrew Clarke For Dylan Petrolhilos,

19 MR. MURDTER: Charles Murdter for Caroline Unger, who is present and before the Court. Okay. Thank you. Thank you. You can be seated. So I'm going to try to work through these motions maybe from -- well -- MR. CLARKE: Your Honor, so this morning, I actually compiled, I tried to do my best on trying to identify everything that we're going to be talking about today. I have a copy for the government and if they approve, I can hand it up to the Court. our compilations. Okay. Thank you. I think we all have DEFENSE COUNSEL: Very good, thank you. So what I -- with regard to the motion to suppress, which I believe all defendants are joining in. I'm not certain about that, Your Honor. Well, that's what I'm going to -- that 0 was a question more than an answer. Which defendants are not joining in the motion? MR. CLENNON: Your Honor, on behalf of Mr. Hessler, I don't believe we have joined that. Okay. Thank you. DEFENSE COUNSEL: May I approach, Your Honor?

20 Sure. So the defendant is not joining the motion to suppress. MR. CLARKE: motion to suppress. Dylan Petrolhilos is not joining the Okay. So that would leave Mr. Litchfield, Mr. Retherford and Ms. Unger. MS. WEATHERS: Sharon Weathers on behalf of Mr. Retherford. Mr. Retherford is joining, Your Honor. Right. Everybody else is joining. So what I was wondering is whether or not we could set that for a hearing, either one of the Fridays coming up before the trial. And it would be anticipated that -- are you going to call the same witness, government? Yes, Your Honor. It's anticipated that the government will call the same witness and incorporate their testimony at the prior suppression hearing, and then we'd allow the defense counsel to cross-examine. DEFENSE COUNSEL: It's fine, Your Honor, for us. 0 Okay. Anybody object to that? DEFENSE COUNSEL: No, Your Honor. Which is preferable, this coming Friday or the week from Friday. MS. WEATHERS: Your Honor, may I -- may I be heard on that issue? I understand the government wants to

21 streamline the process of putting its witness in this hearing in court today. No, the Court wants to streamline the process. MS. WEATHERS: But it's not the Court's motion and the Court certainly -- and I certainly understand the need to streamline testimony that took three days to present. However, it does seem to me that even with that, defense will have an opportunity to cross-examine the witness. But it -- there's just a difference in hearing live testimony and reading through a transcript. And so I do, for the record, object to -- First of all, we will have live testimony. MS. WEATHERS: Well, we'll have live testimony through cross-examination, Your Honor, not through direct examination. Well, the government may have 0 additional witnesses -- additional testimony, I don't know. So we'll just see where it goes. MS. WEATHERS: Very well, Your Honor, but for the record, I just note -- I note my objection. is admissible. Well, again, motions hearing, hearsay MS. WEATHERS: Yes, Your Honor.

22 Adoptions of affidavits and other forms of testimony are pretty routinely done and other formats as well. So unless there's specific prejudice, I think I'll proceed in that fashion. So that will be next Friday. That's next Friday will be -- MS. WEATHERS: Your Honor, can I just have a moment, please, to verify? We can start at a later time in the morning if that's easier for people. MS. WEATHERS: So is Your Honor suggesting that -- I just need a start time. MS. WEATHERS: I anticipate that that will be a rather long hearing, Your Honor. my calendar. I do have other matters on I need a start time, Ms. Weathers. MS. WEATHERS: Is the afternoon better for Your Honor? Any -- any time is better. 0 MS. WEATHERS: Your Honor, :00? :0. MS. WEATHERS: :0. MR. CLENNON: I was actually going to suggest earlier, Judge, but time really is ruling the -- Well, I mean, whatever we don't get accomplished, we're just going to carry it until Monday,

23 so -- MR. CLENNON: MS. WEATHERS: Very well, Your Honor. Thank you, Your Honor, the th and the th will be reserved. The th is a court holiday. Oh, it is? Thank you for reminding me, correct. Now, I'd like to deal next is the motion to compel discovery. I apologize, just one second. And that primarily has to do with the proffer of exhibit -- of a video of the planning meetings; is that correct? DEFENSE COUNSEL: That's correct, Your Honor. What don't I -- do you mind if I get the government's position on what they have and what's available to them or not before you argue? Yes, Your Honor. 0 As outlined and as testified to by the detective during the first trial, the government -- the Metropolitan Police Department requested from a number of sources where we got information they may have videos, such as news organizations or in this case, the Veritas group that we had observed portions of edited video. Detective Cumberson contacted the group and asked if they would be willing to provide unedited video. They provided unedited video. We

24 posted the video. It's not the original. We did not have a witness. We did not take any testimony. And can I just get you to flush out a little -- your representations that it's unedited is based on what? It was based on -- he made the request for unedited video. We received it, watched it. It did not appear to skip or move. continuous conversation. It appeared to be In addition, what we learned as we were watching the video is we observed an undercover officer in the room. We asked the undercover officer, who had been unaware it was recorded if he could come and watch the video. The officer came and watched the video and said that's what happened. That is true and accurate to what I observed and what I was present for, that appears to be the same. We provided to defense counsel the video. The 0 only editing that was done by my office was at the very beginning of the video, and it recorded in segments, and I'm not sure why, if that's how the button camera was recording. That's common with cameras that it records in segments. At the very beginning, it shows an individual who's wearing the camera in the bathroom. It shows their face. We cut that part out, and then provided everything else to defense counsel. We did crop out the undercover

25 officer's face, which is after the communication of planning meeting. The camera pans around and you can see him, and the defense has the exact video we have. Do you -- other than the two pieces of information, you don't have any other presentation of that meeting other than what's been provided to you? Correct. And we doesn't have an original. So the request very much appeared to me, something they can go subpoena or try to get from the third party. We don't have it. We have this, it's how we received it. We believe it to be authentic, based on a number of things and corroborated by text messages and reports about that, but principally by the undercover officer. And so just if I could get your representation on the Court, the individual taking the video was not in coordination with law enforcement efforts -- Correct. That you're aware of? 0 No. And, in fact, the Metropolitan Police Department were not aware of the meeting. The undercover officer was not aware that anyone was there recording it. He was not recording it. He was simply present. We did not find out until later about it and that was simply because we had observed on the news they had put

26 out edited portions. And while we observed edited portions that appeared to be the meeting, we didn't have anything that appeared complete. The other thing I would note is that there is a time stamp and counter on the video, and indication, and that's also there as well. Okay. Thank you. Counsel? MR. CLENNON: Well, Your Honor, I don't believe that we have received what they -- I think the prosecutor represented during the first trial that they played the video and recorded it from a screen and that's what we have. We don't even have the original files that they have. I don't think that we are -- should have to rely. They said what, first off? Your Honor, if I could clarify. At the first trial, we had these clips. Detective Pemberton and myself were trying to put the clips together. To use 0 that, we used a program called Camtasia which captures the screen so you can -- instead of clip one, stop, replay clip two, it ran it together. When we played what they had been produced in original form, there was no -- or however we got it, we had screen captured for the compiled exhibit. We had screen captured and left the time stamp at the bottom for the

27 compiled. For the compilation. Correct. They have exactly what we have as I've described. the screen capture. That's what was testified to about Okay. Thank you. MR. CLENNON: Well, Your Honor, I think that we're entitled to the original video files that were introduced to the government. government is saying. You're misunderstanding what the They have representing that those have been produced to you. Am I misunderstanding what the government's saying? produced that to you. They've indicated that they've Now, if you're talking about the original, they appear to be in the possession of a third party, unless I'm misunderstanding something. MR. CLENNON: Well, I don't think the government 0 should be allowed to rely on the representations of the third party that these videos have been unedited and I don't think that we should have to rely on their representation that they appear to be unedited. As we know, date stamps, time stamps, counters can all be easily manipulated with digital files, and the digital files that our expert has looked at has had said -- has said, I can't really analyze

28 these form manipulations or edits. It doesn't have the original metadata. It doesn't have what anything any videographer analyzer would need to determine whether the videos are, in fact, what they purport to be. But it appears that that's in the possession of the third party, again. MR. CLENNON: It was sought out and requested by the United States, and therefore, they've involved themselves in the process of producing this material and they're basically vouching for it, so I think it's -- They have to authenticate it, I agree with that, but that's a separate objection. I mean, if they don't authenticate it at trial, obviously, you'll have an objection to that. But I'm not aware of authority that allows me to order the government to go to a third party that they're not -- that's why I asked the particular question, whether they were doing it in coordination with the law enforcement and government has represented no. MR. CLENNON: Well, I think the fact that the law 0 enforcement officer approached the group and said, do you have some video here that may be useful to us, that's the coordination right there. That's done on a daily basis, as you know, with regard to convenient store robberies. Failure -- a fairly common law enforcement technique is to go around to

29 third parties and ask for videos. I don't think. MR. CLENNON: Well, the government has -- has represented that they, what they produced to us, they have edited, and so I think we're entitled to at least the original videos that were provided to them, so we can see what they're claiming to have edited out. To the -- so that's the identity of the person making the video, which they cropped at the beginning and the identity of the -- MR. CLENNON: Undercover officer who was present and testified in public at trial. Correct. Okay. So I have your two points on that. Anything else? MR. CLENNON: No. Okay. Anybody else wish to be heard on that? 0 MR. CLARKE: MR. CLARKE: Petrolhilos. Your Honor, if I may? If you could just state your name. Andrew Clarke, counsel for Mr. There's actually audio of the beginning of that meeting where there's someone that stands up and talks about everything that they're going to be talking about the entire day. I apologize, audio on the video or

30 some -- MR. CLARKE: No, it's a -- it's a separate audio of that, that meeting in the beginning. cited to it on our motion -- I actually -- we MR. CLARKE: Correct. -- our motion in limine, and the reason that I bring this up and this is relevant here is because the government has stated that the only thing that -- the only thing that's missing in this video is someone in the bathroom putting on a button with a camera, and an undercover officer. But that's impossible. If you look at the video, there's no bathrooms around at all. So there has to be some portion of that video that's missing from the time he goes to the bathroom, puts on his -- puts on his camera button, and then walks into the meeting, sits down in a meeting that's already taking place. So that's why we're asking for the raw video so that we can understand everything that happened in the video and if they have that, that beginning portion. 0 I understand your desire for the raw video. It -- I understand the government, they're not in possession of it, it's in possession of the third party. MR. CLARKE: I understand, Your Honor, but counsel has just stated that the only thing that they cropped out was from the portion when the project Veritas agent was in

31 the bathroom. What I'm saying is that there has to be more than that that's missing in the video, from just off of what they're saying. Okay. May -- we may be talking about two different things. You -- you may be correct or incorrect, I have no idea whether the third-party videotaped more matters. MR. CLARKE: No, no, what I'm saying is that the government has just stated on the record that the only thing that they've cropped out is when the undercover party was actually in the bathroom. MR. CLARKE: Correct. What I'm saying is that when you look at the videos, the video that we got only starts when the undercover person is sitting down at the meeting. There has to be some portion -- and I don't -- I guess I don't understand how this -- how the undercover camera works, but I don't think that it's something that you can just turn on 0 and turn off. on, it's on. I think it has to be something that once it's So if someone's in the bathroom, it's on, once they're talking towards the meeting, it's still on. Once they sit down, it's still on. There's a portion that they say that the undercover -- that another -- that the undercover officer is in. We don't know when that is. So that's why we're asking for the raw video. If

32 he's already testified in open court like Mr. Clennon has stated, then I don't see what the problem is with seeing that. You said your request for the raw video. What's being presented to me by the government is they have turned over all the video that they have received to you. MR. CLARKE: No, that's -- that's not what they said. Other than the two things they cropped out. MR. CLARKE: Right. And that's -- that's what I'm saying is that there has to be more than just those two things -- MR. CLARKE: Okay. -- that they cropped out that's in 0 that video that they're in possession of. Thank you. Anything else? Is there any reason why the cropped portions should not be turned over at this point? Well, the government does object to the cropped portions, at least being produced without a protective order. I will say this that there have been individuals who has taken materials like that and disseminated them or

33 attempted to disseminate them. I am concerned about it, and it all being off in a public domain, and I don't necessarily think that whoever videotaped it, -- I don't know who that person is in terms of -- I don't know their name or anything. I don't think that person should be subjected to be -- I don't think the public has a right to that information. Maybe I'm missing something. Why doesn't the defense have the right to investigate that person? I'm not saying the defense, Your Honor. I'm talking pursuant to a protective order. protective order? And what would you mean by a That images, the image of the person shouldn't go out on social media or any other mechanism or be produced and -- Okay. 0 I'm talking about. -- disseminated. That's the part Anything else? MS. WEATHERS: Good afternoon, Your Honor, Sharon Weathers. May I respond to government counsel's concern about dissemination of the photo of the person who took the videotape?

34 I believe we're under a blanket protective order. Government has given to the Court numerous protective orders, all of the parties have signed them, and so the government's concern about the defense counsel sharing that information with the general public is a concern they need not have, because we're under a protective order right now, and so -- And you're speaking -- speaking on behalf of everybody, I take it? MS. WEATHERS: I believe I am, Your Honor. Okay. MS. WEATHERS: Thank you. Thank you. With that representation, I'm going to order the uncropped or the cropped portions be turned over to the defense. And again -- let me just put a formal order here and it's not to suggest -- I doubt the government's representations. It's -- you are officers of 0 the Court, but I am ordering you, the entirety of whatever is in the government's possession to be turned over to the defense. Okay. I have a motion to exclude identifying images. I think part of this motion is encompassed -- or maybe all of it's encompassed by Judge Leibovitz's previous ruling, but assuming that the Court is not going to allow any detective or witness who has reviewed the videos to

35 identify who has not -- wasn't involved with the defendant -- is not going to be able to express the opinion that they think an individual on the video is a particular person. That's what you want me to reinforce? our motion. MS. WEATHERS: Yes, Your Honor, that's the crux of Okay. So we'll be operating under the same rules that Judge Leibovitz imposed. MR. CLARKE: I apologize, Ms. Weathers. If we can just get a date that the government has to produce that video by, Your Honor? MS. WEATHERS: I don't need the video, Your Honor -- Okay. We'll get to that, because it there be other things that have to be produced, and I'm going to get the government's -- So is there anything left on that motion? MS. WEATHERS: No, Your Honor, not from the defense. 0 Okay. I have the government's motion to join, so we'll do that one when the defendants are arraigned at the -- when they're presented and arraigned but on the information. MS. WEATHERS: May I -- may I make argument on that? 0

36 Short argument since they haven't been arraigned. MS. WEATHERS: That's correct, Your Honor. Your Honor, it's my understanding from looking at government's motion to -- Sharon Weathers, by the way, Your Honor, for Caly Retherford, and on this matter. It's my understanding, Your Honor, that the basis of government's motion to join Mr. Retherford and Mr. Litchfield and the -- to join these two new counts, which are for one count of misdemeanor APO, one count of resisting is based on a ruling that Judge Leibovitz made in the first trial. And in some, the essence of Judge Leibovitz's ruling had to do with government charging in its original indictment under Charge Number, they charged party for misdemeanor APO under the old statute. After the new statute came out and there was the 0 two new charges, one for misdemeanor APO, one for misdemeanor resisting, the government stated on the record that it would strike the Charge from the indictment and at some later point in time bring new charges, which relates specifically to Charge. Now, I would bring to the Court's attention that in looking at the superseding indictment, which is what the government refers to, the superseding indictment, I'm assuming that's the April rd, 0 indictment. I've looked at this quite carefully and

37 Mr. Retherford was never charged under Charge, which means using government's argument that if he was charged under Charge in the superseding indictment, he therefore can be charged at a later date and time with misdemeanor APO and misdemeanor resisting. You actually want a separate trial on that? MS. WEATHERS: Yes, Your Honor, because he wasn't charged. Okay. MS. WEATHERS: Now -- Is there anything else? MS. WEATHERS: Well, I mean, I think we should have a hearing on that because I think I do have arguments that are quite important. And one of those arguments is whether or not the government can amend the indictment by simply saying we're going to strike that particular charge and amend the indictment. It's my understanding that they're not 0 amending the indictment. moving to consolidate. MS. WEATHERS: They're filing information and Well, I understand that, Your Honor, but there is one paragraph in government counsel's motion to join which simply, quite frankly is rather confusing. The government makes the statement to avoid any

38 confusion. The Court and counsel are expressly advised that the government does not intend to dismiss any count of the superseding indictment. Rather, the government expressly gives notice that it intends to pursue all charges in the superseding indictment and the charges in the attached information. Now, perhaps, it's just misstating what the government's intent is, but it seems to me what government is saying, is that if it charged Charge, which is misdemeanor APO under the old statute, it doesn't plan to strike that and it plans to proceed with all of the charges and to add these two new ones. can't be done. And I think legally that Okay. Thank you. MS. WEATHERS: Okay. So we'll wait for your client. MS. WEATHERS: All right. Your client can add or repeat. Can you take a look at that, particular issue? 0 The issue of whether he's initially charged? Uh-huh. I was just looking at the indictment, it does not appear that he was. But I would note that the government did produce to Ms. Weathers more

39 than a year ago, the composite scans where we identified her client charging the police line. Right. I'm not asking for whether or not it's a factual basis. Right. And it is in the overt acts also. MS. WEATHERS: I think that's inefficient. That's not sufficient, Your Honor, because government -- advocate -- Ms. Weathers, you're a very good MS. WEATHERS: Sorry, Judge. for short argument. -- but your introductory remark was MS. WEATHERS: Okay. It can wait. Thank you. MS. WEATHERS: Okay. Thank you. We'll hear argument in the future on that. 0 MR. SWEET: Mr. Litchfield. MR. SWEET: Your Honor, Mark Sweet for Uh-huh. We're also named in the joinder motion. We just ask for an opportunity to brief this. We passed the motions deadline when this was filed, but we'd like for an opportunity to brief before we move on.

40 Thank you. So your clients will be here next Friday, right? MS. WEATHERS: My client lives in Baltimore, Your Honor, I'd like to waive his presence if -- I don't think it should be waived for the suppression hearing. The rules allow me to waive for -- when it's discussion of legal matters, but we're going to be -- MS. WEATHERS: We'll be here. -- taking testimony. And your client will be here next Friday as well? MR. SWEET: We can be, yes, sir. All right. So what I think what we'll do is reserve on the joinder motion until next Friday. Thank you. MS. WEATHERS: Thank you, Your Honor. notes for a second. I apologize, let me just look at my Okay. I do have for Mr. Litchfield a motion in 0 limine to exclude a text message, and I didn't see that in the list of statements you were offering in your detailed evidence, so is that just a moot motion at this point? I think at this point it's a moot motion. I don't know if it will ripen as -- Okay.

41 think it's moot. Whatever the defense is, but I Counsel -- MS. BRADSHAW: Yes, Your Honor. So at this point the government is not seeking to introduce the particular text message you identified. MS. BRADSHAW: Understood. prejudice as moot. Okay. So that will be denied without Okay. I have a motion in limine -- a motion by the government to present its expert with a pseudonym. guess I'll hear the government on that. I Yes, Your Honor. The government is requesting that its expert be permitted to testify under an alias in court publically. We have what I would note is that the government did request -- or did make available the expert's true name and her CV to the defense attorneys under the terms of our proposed protective order. They agreed to 0 that pending ruling from the Court without waiving objection to it. The government has also for several weeks now offered to make the witness available. The government's concerns are as follows: Is that this particular witness, having her true identity outed could impact other

42 investigations not related to this case, but other investigations in which she has been involved. There has been -- since the filing of the government's motion a number of specific comments targeting and attempts to find out who she is, to find out her identity so that that can be circulated. And that is part of the government's concern regarding the pattern of behavior in this case and I'm not referring to the defendants. I'm saying individuals who have observed it. The government's belief is that this is not a violation of the confrontation clause. She will be present. She will be available to testify. She will be subject to cross-examination. All of this can be observed. The only thing is that the public itself, not defense counsel, won't know what her true name is. And the government has made steps to ensure that defense counsel can adequately prepare. But I do think that given the implications that a public doxing of her would be, I think that's what we're talking about here. I think that those -- the government 0 has tried to balance those concerns with ensuring that the defendant's have a right to a fair trial. I can go into specifics if the Court would like, but I'm not proposing that defense counsel doesn't know who she is. They, in fact, do know who she is. I've offered to make her available to them. I'm just am uncertain why the public

43 needs to know her true name when there have been efforts made to publically disseminate identities of individuals who testified in this case for purposes -- But as I understood your proposed order, you're seeking to not disclose it to the defendants either? And I understand the Court may -- the government is, if the Court is concerned about that willing to -- the Court believes it's appropriate have it to the defendants with the proposed protective order in place, meaning, it could not be disseminated outside -- I guess, how would the defense investigate this witness? This is an expert witness, Your Honor, so how would they investigate? Correct. But it's an expert based on experience. courthouse -- We've had experts in this courtroom, Yes that testified for a number of years and it ended up certain things they were saying were not true. And they have the same right to investigate any witness who testifies. And the government's concern, I guess would be less about -- I think the Court can fashion a

44 protective order as it relates to their ability to investigate. The government's concern is about -- not the ability to investigate, but about the punitive or retribution that seems to have been targeting once people are testifying. I understand that, but I mean, it's difficult for me to envision how counsel or their investigators or using their clients are going to investigate an individual without mentioning their name to third parties. Well, I think -- yeah. I understand the Court's point. What I was saying is in terms of investigating the individual based on her past work, her past work wasn't -- as it relates to the undercover work wasn't done under her true name. So I'm not sure that her true name aids in that portion of the investigation, if what the Court is saying. But we'd like the opportunity with the true name to combine that, and I think the Court can using what we used as a guide fashion an appropriate protective 0 order. The government's concern is really what happens in this courtroom, where that information is disseminated at large for purposes of retribution, not investigation. No, I'm sensitive to that, but I'm -- I mean, I think what we fashion -- I don't think people should be subject