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USA v. CORNELL et al, Docket No. 1:11-cr-00402 (M.D.N.C. Nov 29, 2011), Court Docket Eric Fink Friday, July 27, 2012 - 8:37 PM

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 1:11-cr-402-1 UNITED STATES OF AMERICA v. JORGE PETER CORNELL ) ) ) ) )

DEFENDANT CORNELLS RESPONSE TO GOVERNMENTS MOTION FOR PROTECTIVE ORDER

Now Comes Jorge Cornell, in opposition the Governments Motion for Protective Order and hereby requests the Court to deny the motion. In addition, the Defendant hereby requests the Court to enter an order requiring the Government to provide unredacted copies of Government discovery and to allow defense counsel to provide their clients copies of certain categories of discovery even though the usual discovery policy does not permit counsel to give copies of discovery to client. In support of this motion the Defendant respectfully shows unto the Court the following: 1. The Government has produced to the defense voluminous discovery that includes well over 10,000 pages of interviews, transcripts, search warrant and various evidentiary documents. A more detailed description of the items produced is contained in the CDAs attorney report to the court that was filed in conjunction with a Motion to extend time to file motions filed by Defendant Kilfoil [Docket 161-1]. The discovery was produced under the usual policy of the U.S. Attorneys Office for the Middle District which prohibits defense counsel from furnishing copies of documents or other discovery to the client. 2. Much of the discovery is heavily redacted which often makes it difficult for counsel to understand the nature and context of the document. An example of a heavily redacted witness interview is attached as Sealed Attachment A to this Response.

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3.

Other portions of the Government discovery include documents that are public records which are available to anyone through other sources. Such documents include various court filings in cases that involving one or more of the defendants or potential witnesses in this case. Under the Governments discovery policy, copies of these documents furnished in discovery cannot be given to the defendant. The policy cannot prevent counsel for providing independently available copies of the same documents to a defendant but this adds substantially to time and effort required to provide such copies to a defendant.

4.

In addition, there are many hundreds of individual audio and video recordings that have been provided in discovery.1 These audio files were provided on more that 50 individual CD discs by the Government. These recordings are in a variety of recording formats some of which are in proprietary formats that make it difficult to review the recordings. The Government has also furnished many hundreds of pages of transcripts that it has made from these recordings.2 Counsel has found that the recordings are sometimes difficult to understand. Counsel has also found that there is no index of the recordings that correlates the recordings to a particular transcript and that in many cases counsel is unable to tell which transcript goes with which recording. Much of the assistance being provided by the CDA attorney is the indexing and organization of the documents and recordings. Counsel

There are 413 audio files according to the CDAs report. Some of these audio files are over 8 hours in length. There are approximate 500 pages of transcripts in PDF format and hundreds of pages of additional transcripts in Word format. Counsel is unable to estimate the total length of the transcripts in Word format. 2
2

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has had no benefit of this work as yet since the CDA has not yet produced its work product. 5. In June 2012, counsel for defendant wrote the U.S. Attorney asking the Government could provide the recordings in a format that would be playable on a common computer media player such as Windows Media Player and asked for an index of the recordings and transcripts.3 The DOJ attorney assigned to the case responded that the Government could not provide copies in a non-proprietary format and that no index of the transcripts and recordings existed. 4 6. Also in June 2012, counsel for defendant asked for an alteration in the U.S. Attorneys policy that would allow defense counsel to provide copies of some of the discovery to the defendant in the case.5 Although the Government claims that there are security issues that justify restriction of access to various discovery, an examination of the discovery indicates that there are many types of discovery documents that represent little or no security issues and restricting access to these documents adds little or nothing to security but it interferes with the defedants ability to assist counsel in preparing a defense in the case. Examples of some of this are the portions of discovery which consists of court records that are otherwise publicly available including search warrants, state court records, information available on the internet including YouTube videos and

See letter attached as Exhibit B to the Defendants Motion to Produce [Docket # 171-2]. See letter attached as Exhibit C to the Defendants Motion to Produce [Docket # 171See letter attached as Exhibit B to the Defendants Motion to Produce [Docket # 1713

3].
5

2].

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Facebook postings. Much of this is independently available though at the cost of significant time and effort to obtain it. 7. The Government responded that it had security concerns but it would consider requests about specific types.6 As a result undersigned counsel suggested that counsel be allowed to share the transcripts of recordings that undercover government agents made during contacts with various defendants. 7 An example of such a transcripts is attached as sealed exhibit B to this response. If Counsel is required to go over the many hundreds of pages of individual transcripts in person with a defendant, many days of jail house visits by counsel would be required to accomplish this. The Government has not responded to this suggestion. 8. The security concerns of the Government are significantly lessened by the fact that the copies of investigative materials such as witness statements are heavily redacted to eliminate the identifiable information and addresses. 9. In the context of these requests, on or about July 16, 2012, the Government filed a sealed motion for protective order seeking further delay in providing unredacted documents to the defense and seeking to have the court order that defense counsel not provide copies of discovery to their clients. The Government made two allegations in support of this motion: (1) that unnamed defense counsel had provided some of the discovery to a defendant in apparent violation of the U.S. Attorneys discovery policy, and (2) that

See letter attached as Exhibit C to the Defendants Motion to Produce, [Docket # 171See letter attached as Exhibit D to the Defendants Motion to Produce [Docket # 1714

3].
7

4].

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unnamed threats had been made on the internet concerning the loyalty of the three codefendants who had plead guilty in this case. 10. In response to the receipt of the motion, undersigned counsel sent an email to the prosecutor asking for specific evidence to support the allegations of attorney misconduct in violation of the discovery policy and to support the allegation of threats being made. 8 As of the filing of this response, the U.S. Attorney has not responded to the request for specifics and has only made the unsupported allegations of its motion. Undersigned counsel can only speculate to the basis in fact for these allegations. 11. The only internet posting of which undersigned counsel is aware to which the Government may be referring is one posted by a support group for the defendants in this case. A copy of this posting is attached as Exhibit D hereto. An examination of this posting demonstrates that it is clearly speech protected by the First Amendment and the posting can hardly be categorized as a threat to anyone. Any suggestion by the Government that this is the threat that the Governments motion refers would be absurd. 12. This case presents serious issues concerning the Governments attempt to portray speech and association activities that are protected by the First Amendment as criminal conduct. For example, in paragraph 12 of the superseding indictment, the Government alleges that public criticism made of the Greensboro police department was conduct promoting the alleged RICO enterprise. This speech was clearly conduct protected by the First Amendment. The Government has continued in this vein by filing the motion for
8

See email attached as Exhibit C to this Response. The letter refers to counsel not receiving notice of the motion. Counsel has determined since sending the email that ECF notice of the motion was in fact received and notice is not an issue. 5

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protective order to attempt to further impede the defenses ability to prepare for trial by apparently pointing to First Amendment conduct by supporters of the defendants. 13. In sum, the Government has not supported the allegations made in its motion for protective order and has provided no basis for the relief it is requesting. Furthermore, as demonstrated above, the restrictions that the Government has placed, to date, on the use of discovery materials has significantly hampered the ability of defense counsel to review the materials and to consult their clients in preparation of a defense in this case. Wherefore, Defendant Jorge Cornell, by and through his undersigned counsel, respectfully requests the Court to enter an order denying the Governments Motion for a Protective Order in its entirety. Defendant further requests that the Court enter an order permitting defense counsel to provide copies of certain types of discovery documents to counsels client including: (1) transcripts of recorded conversations (not including Grand Jury transcripts), (2) discovery documents that are also available from public sources such as court records, (3) redacted copies of witness interviews. This the 27th day of July, 2012. LAW OFFICE OF MICHAEL W. PATRICK /s/ Michael W. Patrick N.C.S.B. No. 7956 312 West Franklin Street P.O. Box 16848 Chapel Hill, N.C. 27516 Attorney for Defendant Jorge Cornell 919-960-5848 mpatrick@ncproductslaw.com

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CERTIFICATE OF SERVICE I hereby certify that on the 27th day of July, 2012 I electronically filed the foregoing with the clerk of the court using the CM/ECF system which will provide a copy of the motion to counsel of record.

/s/ Michael W. Patrick Attorney for Defendant Jorge Cornell

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