FBI, Prosecutors Given Copies Of Defense Documents By Duplication Service Defense Was Instructed To Use

from the pixels-are-cheap dept

So much for attorney-client privilege. According to a report by Dan Christensen of Florida Bulldog, the feds' insistence that defendants utilize its contracted document duplication system has led to FBI access of privileged work product.

Court papers filed last week by attorneys for Dr. Salo Schapiro contend the secret practice was not the action of “just one rogue agent or prosecutor.” Rather, it was apparently an “office-wide policy” of both the U.S. Attorney’s Office and the FBI that’s gone on for “at least 10 years.”

The unwritten policy involves “surreptitiously copying defense counsel’s work product through the government-contracted copy service that the government requires defense counsel to use to obtain the discovery documents’’ needed to properly prepare for trial, according to court papers that seek either the dismissal of Schapiro’s indictment or the disqualification of the entire prosecution team.

[...]

Specifically, the court papers allege that Fort Lauderdale-based copying service Imaging Universe and president Ignacio E. Montero provided the government with CDs containing duplicates of documents Schapiro’s defense team culled from 220 boxes of evidentiary records in preparation for trial.

The government has responded with a filing [PDF] claiming it has done nothing wrong. It acknowledges the FBI and the US Attorney's office received copies of the files from the duplication service, but claims it never asked the company to perform this "service." That's at odds with other information gleaned by the defense, as well as an admission by a federal prosecutor.

The motion contends that company president Montero “lied” to Arteaga-Gomez about the copying process, and instead of making sure the government did not see the defense’s hand-selected files, provided FBI case agent Deanne Lindsey with duplicate copies.

[...]

Hayes, the federal prosecutor on Schapiro’s case, first informed Srebnick and his associate that agent Lindsey “had been surreptitiously receiving the CDs” on April 22, according to the defense motion.

“Hayes proposed to immediately destroy the CDs,” but the lawyers asked instead that he give them to the defense, “which he did,” the motion says.

The defense also claims to have a document in hand written by the owner of the duplication company stating that he has turned over duplicates of defense documents to the government multiple times over the past decade.

The government's response to the defense's motion makes a couple of points -- one more credible than the other.

The first is the government's assertion that all work product is not created equal, in terms of privilege.

The sole issue before the Court is whether the file name titles created by the defense late in the discovery process, or the patient files that SA Lindsey viewed, can be considered protected opinion work product, and if so, whether there is any legal basis to sanction the United States based upon her exposure to them.

Simply, there has been no showing that the documents at issue were protected work product, and there is no basis for the sweeping remedies Defendant seeks. Work product protection does not apply to every selection, opinion or mental process of an attorney. While Defendant’s argument conflates fact work product, which enjoys no protection or privilege, and opinion work product, which may be protected, he bears the burden of showing that work product protection covers each document at issue—and he has failed to do so.

This is an interesting assertion considering the government -- in response to FOIA requests -- tends to treat all work product as privileged and thus out of the reach of requesters. Here, it claims there are varying levels of privilege and tosses the burden of proof over to the defense to show why these documents should not have been seen by prosecutors.

The second assertion the government makes, however, undercuts the severity of the defense's claims -- if only in this particular case. All documents duplicated by the third-party service for the defense (and shared with the government) were already in the FBI's possession. They were taken from 220 boxes of medical/patient files seized by the FBI during its investigation. While viewing the illicit duplicates may have given the government some insight into the defense's preparations, it did not give prosecutors access to documents they otherwise wouldn't have had access to.

The government has also instructed the duplication service to stop providing "courtesy copies" (as the owner of the service refers to them) of defense documents to prosecutors.

Whether or not there was any impropriety, there's certainly the appearance of impropriety. The prosecutor's office, along with the FBI, apparently accepted the unauthorized duplicates without complaint, only seeing fit to provide clear instructions to the duplication service after its improper access was exposed.


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  • icon
    DannyB (profile), 6 Jun 2016 @ 8:54am

    Would Ethics classes fix this?

    The DOJ was recently ordered to send its lawyers to ethics classes.

    Maybe the FBI needs to attend the same classes? After all, they received copies, without raising any protest.

    I wonder if they realize that they are supposed to prosecute actual crimes, and not go looking for people to 'slot' or pigenhole into manufactured cases or crimes?

    reply to this | link to this | view in chronology ]

    • identicon
      I.T. Guy, 6 Jun 2016 @ 10:49am

      Re: Would Ethics classes fix this?

      Convictions Trump Justice.
      You can fit a square peg into a round hole... you just have to beat around the edges a little.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jun 2016 @ 2:11pm

      Re: Would Ethics classes fix this?

      only if the ethics classes took place in North Korea on how to abuse the citizenry

      reply to this | link to this | view in chronology ]

    • icon
      techflaws (profile), 6 Jun 2016 @ 9:52pm

      Re: Would Ethics classes fix this?

      I'd say the chances are similar to those of ethics class fixing something at Comcast. Maybe less.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jun 2016 @ 8:55am

    Whether or not there was any impropriety, there's certainly the appearance of impropriety.

    You have fallen for the governments line of defence. It does not matter what the documents where, or whether the government already had copies, the the FBI and prosecution should not be looking over the defences shoulders in secret. This was an improper practice, full stop.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jun 2016 @ 8:59am

    why do they bother with the sham of legality, etc. why not just run roughshod over us all. it would save a huge amount of time and expense and the end result would be the same.

    i know the answer, so don't explain it. we have to maintain the image in order to claim the high road. i bet the entire rest of the world laughs at that, but there's no laughter here. people here still joyfully celebrate our good, kind-hearted government and still hope to infect the rest of the world with it.

    reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 6 Jun 2016 @ 11:44am

      Re:

      It's also more demoralizing and harder to fight. They long, long ago figured out that direct, open tyranny or exploitation only works for so long, and there is no guaranteed return from that when it falls apart.

      And yes, because some people love it, some people will condemn it on one side and defend it on the other, and others won't care until it personally affects them.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jun 2016 @ 2:12pm

      Re:

      As a Canadian it is more of a feeling of pity and the desire to never ever set foot in the hell hole of a country America has become.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jun 2016 @ 9:13am

    Is it a wonder we keep moving towards lawlessness with such stunning examples of corruption and surely no accountability?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jun 2016 @ 9:49am

      Re:

      It is the natural flow of government to move towards tyranny.

      It will only be prevented by a population that understands what liberty means. The average American does not know shit about liberty and are living on borrowed time.

      There is a constant cry by the people to be saved by the government when the cry should be for the people to gather and go save the Nation from the government instead. Instead there is a pseudo war of ideologies going on right know where both sides are completely dishonest or hypocritical.

      We are in shaky territory. There really could be something stupid that launches a civil war, and the Government sees it, and does nothing but foment trouble while they claim to be trying to stop it.

      reply to this | link to this | view in chronology ]

  • identicon
    David, 6 Jun 2016 @ 10:04am

    No impropriety since the FBI already had the documents

    In fact, nothing in the documents could be found that would have concerned attorney-client privilege since it only consisted of repeated instances of 26 well-known letters in upper- and lower case as well as a sizable amount of standard punctuation.

    The occasional diacritic certainly cannot be considered enough to warrant tossing the case. Either upper or lower.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 6 Jun 2016 @ 10:11am

      Re: No impropriety since the FBI already had the documents

      I'm speaking here from common sense rather than the bizarro-land of legal thinking, but...

      Whether or not the documents revealed anything new has absolutely nothing to do with whether or not the means to obtain them was corrupt.

      See this case as an example.

      reply to this | link to this | view in chronology ]

  • icon
    Dave Cortright (profile), 6 Jun 2016 @ 10:25am

    Honeypot to prevent future copying

    Going forward if I were a defense attorney, I would plant false documents in with the legit ones. They'd be crafted to contain what appears to be incriminating evidence, but not so outrageous as to raise suspicions. Record a video of someone talking through what is going on, why you are doing this, upload it to YouTube (or another video service that can set an unalterable date stamp) as a private video that can be made public if necessary. Then wait and see...

    (This is a bit like how map makers add fake info to maps to foil copiers).

    reply to this | link to this | view in chronology ]

    • icon
      PRMan (profile), 6 Jun 2016 @ 10:36am

      Re: Honeypot to prevent future copying

      I would give them all fake information and then copy the real information somewhere else.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Jun 2016 @ 10:51am

        Re: Re: Honeypot to prevent future copying

        Both honeypot ideas assume that the defense had enough autonomy that this was practical. Given that the originals were in FBI custody, it may well be the case that the flow was:

        - FBI gives copying service access to everything.
        - Copying service duplicates records according to instructions from defense.
        - Copying service returns everything to FBI (or, if the items at the copying service were themselves copies, destroys them)

        This flow would also provide a plausible reason for the FBI to insist on a particular copying service. They could argue that they have vetted the service and its employees enough to entrust it with the non-public evidence, so defense must use this service because no other copying services are certified to handle the evidence to the FBI's standards. This flow allows the defense to get duplicates of whatever documents it requested. The originals remain reasonably safe from tampering (including tampering by unscrupulous defense lawyers). In such a flow, it would be trivial for the copying service to either make an extra copy in step #2 and send those extras to the FBI or to furnish to the FBI sufficient details of what the copying service was asked to do that the FBI can identify which documents were copied.



        As regards the impropriety, I would contend that the defense's choice of which documents it would need reflects the defense lawyer's opinion, likely colored by conversations with the defendant, about which documents would be most useful in exonerating the defendant. Thus, while it may be a fact that the defense wanted the document, it is the defense's opinion that the document is worth having. This would shift the argument back to whether that opinion is a protected work opinion. It seems to me like it ought to be.

        If the prosecution knows which documents are most useful for exoneration, it can spend extra effort trying to understand why the defense believes them to be exculpatory and trying to identify ways in which to prevent the defense from using them to win, perhaps by discrediting the document (or its authors) or by identifying a legal interpretation under which the information in the document is inadmissable or is not exculpatory.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jun 2016 @ 10:46am

    Some Lawyers Agreed?

    "... the feds' insistence that defendants utilize its contracted document duplication system."

    Won't be hiring these guys.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 6 Jun 2016 @ 10:56am

    That the DoJ is systematically cheating the legal system

    Strongly implies that without such cheating, they could not mount an effective case at all.

    Once again, all our convicts are shown to be political prisoners, not criminals.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 6 Jun 2016 @ 11:38am

      Re: That the DoJ is systematically cheating the legal system

      Just because the prosecution is too lazy or incompetent to build a proper case does not mean that the convicts are innocent. There is nothing "political" about the prisoners, criminal or not. It's just that the quality of U.S. justice, like a number of other products, has become indistinguishable from "made in China".

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 6 Jun 2016 @ 12:48pm

        Re: Re: That the DoJ is systematically cheating the legal system

        But we don't know, do we? We don't have sufficient oversight to determine in how many cases the DoJ bent the system in favor of conviction, or to what degree. We don't have a review system in place to assure our convicts a fair trial. We do know that public defenders are understaffed, that agents and officials notoriously lie in court, that judges favor police over suspects, and prosecutors get to choose who they try or don't, and that agents and officials are, themselves, deflected from the court system.

        So is it better that we let an unknown number of innocent lives, possibly more than half of our inmates, languish in prison? Or is it better to let them all free, knowing that some of them are guilty, and will get to escape justice in these circumstances?

        We're not even counting those in on victimless charges getting longer time than murderers and rapists due to mandatory minimums. We're talking the uncountable numbers that have been convicted by lies and deception and rights bypasses, some of them to death. We know the courts are gamed.

        Blackstone's ratio suggests that 10% is unbearable (or rather that it's better that ten guilty people to go free than one innocent to be convicted). It's very likely we have at least twice that in falsely imprisioned, considering how eager the US is lock people up.

        And then there's the matter that our prisons are horrid, teeming with corruption and abuse, and the people of the US don't give a fuck. And we sometimes kill people for their crimes, or for the crime of not fitting in to prison.

        It doesn't really matter whether a convict was actually guilty. We have no way to determine that without a system that actually tries to determine guilt or innocence. What matters is that our suspects were denied actual due process, and rather got a show trial. That makes their imprisonment extrajudicial.

        Ergo political prisoners. Not criminals.

        reply to this | link to this | view in chronology ]

      • identicon
        Median Wilfred, 6 Jun 2016 @ 12:51pm

        Re: Re: That the DoJ is systematically cheating the legal system

        Dude, I cannot believe you wrote that.

        "Innocent until PROVEN guilty" is said to be a pretty sacred part of US law. The DoJ and state's Attorney Generals are supposed to PROVE stuff, not be lazy and gaff it all off. When the percent conviction is more important than actually figuring out if some random schmo did it, then that particular conviction is political. When all law enforcement appears to get that lazy, then every conviction looks political.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Jun 2016 @ 2:14pm

        Re: Re: That the DoJ is systematically cheating the legal system

        We only have their word that these are "criminals" and not people targeted out of spite. their word has been proven to be meaningless

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jun 2016 @ 11:00am

    The FBI is spinning this as some sort of half-assed "we've digitized some of the document in your archive, you might as well keep them instead of having to digitize them again" effort on the part of the copy shop. Might even be how it all started.

    What they ended up with was a half-assed partial digitization of the evidence boxes, poorly indexed. They even said that they had to rummage about those disks when they wanted to provide copies of some stuff to their expert.

    And, of course, "we didn't ask for these copies" doesn't shed light on why they were still accepting them, or how the arrangement was first set up.

    I can only guess that they didn't want to pay for the labor of digitizing the documents in some coherent and comprehensive fashion. ... for instance, to make the job for the Defense harder (sorting through paper files vs doing searches on electronic ones). Or to avoid paying for digitization of stuff they'd be tossing in 2 or 5 or 10 years.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jun 2016 @ 11:36am

    Footnote 7, Page 13

    Read this in the embedded document for an idea of what kind of business they were dealing with.

    reply to this | link to this | view in chronology ]

  • icon
    kenichi tanaka (profile), 6 Jun 2016 @ 12:29pm

    This is going to have a detrimental effect on any cases that were prosecuted by the government because those who were convicted could claim that their due process was violated by leaking confidential information to the government.

    Even if this wasn't done deliberately, there is impropriety because of the fact that the documents and files were delivered and received by the government. It would be akin to a police officer bringing a witness to the courthouse when they were supposed to be brought to the police station for identification through a line-up process.

    Even if it was accidental, that evidence can't be admitted because the witness identification was tainted.

    In this case, since the prosecutor/government received files improperly from the defense via the duplicating company, it's the prosecution who will end up paying the price over this screw-up.

    I don't recall the court ruling, but there was a case where a police officer brought a witness to the courthouse in error when the witness was supposed to be brought to the police department for a line-up regarding suspects in a criminal case.

    This case is no different. The government screwed up.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jun 2016 @ 2:24pm

      Re:

      You are assuming the court will rule against the government. That is rather naive don't you think considering how things have been going as of late.

      As of late it has been the government says they were justified in breaking basic laws and rights because they were after someone they knew was guilty. The court says we trust in your judgement and will overlook you knowingly breaking the law because your word means more for some reason. Even though you keep getting caught lying to the courts.


      That is the reality from what I have seen

      reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 8 Jun 2016 @ 6:52am

      Re:

      "This case is no different. The government screwed up."

      If the thing they "screwed up" was that they got caught engaging in obviously nefarious behavior, then you're correct.

      However, the actual nefarious behavior itself was not a screwup. It was a deliberate, systemic policy that predates this particular case. That's not a mistake. That's systemic corruption.

      reply to this | link to this | view in chronology ]

  • identicon
    John, 6 Jun 2016 @ 1:23pm

    Corrupt

    How does the Govt get away with these kind of egregious acts. They are as corrupt as it comes. They try to build a case on innocent people by lying and cheating. If someone on the defense cheats, they are only punished. Why should it be any different for the government or the prosecutors in this case?

    Our "Justice" system is a joke. In a country where you can buy witnesses with plea bargains, make innocent look guilty, and counter a defense with lies and deceit, this country is fucked.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jun 2016 @ 2:08pm

    they see nothing wrong with what they did, just like they see nothing wrong with having the police arrest a lawyer for refusing to let them intimidate her client without her present.

    "We are above the law" is what they are being trained to do, not the actions of a few bad apples.

    To harass, to intimidate, to coerce, to brutalize and murder anyone that stands up to us.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Blowhard, 6 Jun 2016 @ 2:19pm

    Get out if you can

    I don't think the ruse of free country, government for the people blah blah blah is going to hold much longer. I think it's only a matter of time before even the illusion is abandoned. We are in danger in the same way the victims of current and former fascist dictatorships are. The NSA spied on Sen. Howard Baker simply because people liked him. That's influential enough for our paranoid government I guess.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 6 Jun 2016 @ 3:08pm

    Very simple test to check for validity of argument

    If the defense had gained access to the prosecution's documents in a similar matter, would the prosecution(in this case the FBI) be screaming about how terrible it was and demanding harsh penalties, rather than buying the defense's claim that it's no big deal?

    Yeah, didn't think so.

    If it wouldn't be acceptable for the defense to do it, it shouldn't be acceptable for the prosecution to do it either, and if the defense would be punished for it then so should the prosecution.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 6 Jun 2016 @ 7:39pm

      The inability for people to hypothetically reverse roles to test the merits of arguments is distubingly common.

      Hearing Kim Davis complain that she shouldn't have to change because someone disagrees with her, I realized she just cannot fathom that the gays against whom she discriminated should have the same right.

      Similarly law enforcement agencies that argue that crypto should be backdoored can't fathom using such a hobbled encryption scheme for police files, or their own personal files.

      It seems to be this weird blind spot.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 7 Jun 2016 @ 3:13am

        Walking a mile in someone's shoes requires you be willing to take yours off first

        The ability to switch roles like that, to check the validity of an argument by asking 'Now what would I think if the roles were reversed?' requires that one be able to consider that they might be wrong, that their position, their argument might not be the correct one, even if only for a moment of honest consideration.

        If you start from the position that your stance, your argument is absolutely right then even 'switching sides' you're still going to come to the same conclusion, that you're right, because clearly the other side is wrong from the get-go.

        "I know that being able to wiretap any phone without a warrant is a great way to stop and prevent crime, but for the sake of argument lets say I was one of those people who might have their phones tapped at any time.

        ...

        Nope, so long as I'm not doing anything wrong I've got nothing to worry about, so all those 'privacy' concerns aren't valid as the only people that will be affected by this are criminals, and they don't have rights."

        Or...

        "My holy book of choice says that it's perfectly acceptable to treat this other group badly, but for the sake of argument what would it feel like to be in their shoes...

        ...

        Nope, they're the ones choosing to be that way so it's still their fault, in their shoes I could and would change, and my book says treating them bad is acceptable, and since my book can't possibly be wrong then clearly it is in fact acceptable to do so."

        reply to this | link to this | view in chronology ]

  • icon
    Anon E. Mous (profile), 6 Jun 2016 @ 5:14pm

    The real sad thing is that a persons rights as laid out in the constitution seem to not mean a thing and do not matter at all to the Government, the US DOJ or Law Enforcement.

    It is the same with the rights an accused has when they have been charged with a criminal offense. It is no longer you are innocent until proven guilty, now it is more you are guilty unless you can prove your innocence, and these days that is starting to be a very uphill battle.

    There is way to much collusion between prosecutors, law enforcement and judges and when it comes to following the letter of the law most judges seem to give the government , prosecutes and law enforcement a wide birth in which to operate.

    An accused nowadays faces an uphill battle with forces that conceal, lie, mislead and fail to be forth right in disclosure to the defense counsel and the accused in way of due process.

    I believe if the forefathers could see how the constitution and the rights enshrined in it are being trampled over and discard like gum on a shoe, they'd be pissed and would be of mind at a travesty that is taking place.

    The Goverment now seeks to win at all costs, whether the playing field is fair matters not, as long as they get the win that is all the care about.

    What a mess they have made of the one thing Americans have always had pride in.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 6 Jun 2016 @ 7:34pm

      There really is little different between established government and organized crime.

      It's more unnerving when establishment goes criminal then when criminal organizations go legit.

      reply to this | link to this | view in chronology ]


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