Fight Over Barrett Brown Continuance and Gag Order

8/22/2019 Fight Over Barrett Brown Continuance and Gag Order

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Government's Opposition to Continuance Page 1

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION___________________________________________

UNITED STATES OF AMERICA '' No. 3:12-CR-317-L

v. ' No. 3:12-CR-413-L' No. 3:13-CR-030-L

BARRETT LANCASTER BROWN '

GOVERNMENTS OPPOSITION TO CONTINUANCE

1. The United States Attorney for the Northern District of Texas, by and through the

undersigned Assistant United States Attorney, files its opposition to the continuance

requested by the defense.

BROWNS POSITION SUMMARIZED

2. Brown complains that he has been unable to prepare for a September 2013 trial due

to the volume of discovery. Brown requests the trials be continued until February 2014.

GOVERNMENTS POSITION SUMMARIZED

3. The government requests that this Honorable Court deny Browns motion for a

continuance. Browns cases have not been deemed complex, and therefore Browns right

to a speedy trial is at issue. Brown failed to address Browns right to or waiver of a speedy

trial.

4. The defense has had adequate time to prepare for trial. Brown has had the bulk of

discovery for at least seven (7) months, since approximately February 1, 2013. Browns

Case 3:12-cr-00317-L Document 81 Filed 08/07/13 Page 1 of 13 PageID 307


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attorney failed to explain why seven (7) months was insufficient in a non-complex case to

prepare for trial.

5. Knowing that the trials were set in September 2013, the new defense team accepted

representation of Brown on May 1, 2013, and stated to the United States Magistrate Judge

that they were confident that [they would] be able to get up to speed and anticipate[d]

trying the case on time.

6. Brown now requests a trial date in February 2013. The undersigned is unavailable

in February 2013 to try these cases. If the Court deems a continuance necessary and

appropriate in light of Browns right to a speedy trial, the government requests, in the

alternative, that the following weeks be considered when setting these matters for trial:

March 10, 2014March 17, 2014April 28, 2014Any week in May 2014

7. The undersigned conferred with the defense, and they have no conflicts on these

dates. The government estimates that its case in chief in the 3:12-317-L trial should last

no more than three days. The government estimates that its case in chief in the second

trial (3:12-413-L and 3:13-CR-030-L) should last no more than eight days. The

government will file a list of its conflicts in camera.

SPEEDY TRIAL

8. A defendants trial must commence within 70 days of the date the indictment was

filed, or from the defendants initial appearance, whichever is later. See 18 U.S.C.



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3161(c)(1). Browns cases have not been declared complex, nor has any party moved to

declare the cases complex. Therefore the Speedy Trial exclusions pursuant to 18 U.S.C.

3161(h)(7)(B)(ii) do not apply. Per 18 U.S.C. 3161(h)(1)(B), the delays associated

with respect to other charges against the defendant were excluded from this 70 day period

(i.e. the Indictments returned in 3:12-CR-413-L and 3:13-CR-030-L).

9. Per 18 U.S.C. 3161(h)(1)(A) the time during which Browns mental capabilities

were being examined were excluded from this 70 days. The competency hearing in

3:12-CR-317-L was held on January 30, 2013, and the courts order finding Brown

competent to stand trial was filed on February 4, 2013 (Document 30). The government

contends that Browns speedy trial clock did not start to run until February 4, 2013.

10. Any delay resulting from pretrial motions, or from any proceeding concerning the

defendant that is actually under advisement by the court is excluded from the 70 day

period. See 18 U.S.C. 3161(h)(1)(D) and (H). Per the docket in 3:12-CR-317-L, the

following motions and/or actions occurred:

a. 2/13/2013 Governments Motion (Document 34). (2/4 through 2/13 = 9 days)Court denied the motion without prejudice on 3/29/2013 (Document 41) butordered a review of the matter, and later referred the matter to the MagistrateCourt (see e. below).The Magistrate Court orally denied the Motion on May 1, 2013, but did notissue the Order until May 30, 2013 (Document 64). (106 days tolled).

b. 2/26/2013 Governments Motion for Reciprocal Discovery (Document 37).The Motion is pending a resolution.



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c. 2/26/2013 Governments Motion Under Fed. R. Crim. P. 12.2 (Document 38).The Motion is pending a resolution.

d. 3/4/2013 Defendants Unopposed Motion to Continue Trial from May 6, 2013 toAugust 2013 (Document 40).

Court granted on March 6, 2013, and set trials for September 3, 2013 andSeptember 23, 2013.

e. 4/16/2013 Court remanded matter to Magistrate Judge Stickney to determineBrowns need for appointed counsel.

Magistrate Judge Stickney set matter for status conference on May 1, 2013,and ultimately issued an order on May 30, 2013. (see a. above).

f. 5/1/2013 Defendants Motion to Substitute Counsel (Document 56 and 57).Court granted Motion on May 7, 2013 (Document 63). (6 days tolled).

g. 6/18/2013 Governments Motion for a Protective Order (Document 65).Court granted Motion on 6/20/2013 (Document 66). (2 days tolled).

h. 6/21/2013 Defendants Motion to Continue DeadlinesCourt granted Motion on 7/3/2013 (Document 68). (12 days tolled).

i. 7/9/2013 Governments Motion (Document 69).Court granted Motion on 7/9/2013 (Document 70). (0 days tolled).

j. 7/12/2013 Government Motion (Document 41).Court granted Motion on 7/15/2013 (Document 72). (3 days tolled).

k. 7/16/2013 Governments Motion (Document 73).Court granted Motion on 7/17/2013 (Document 72). (1 day tolled).

l. 7/19/2013 Defendants Motion (Document 75).



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Court granted Motion on 7/22/2013 (Document 76). (3 days tolled).

m.7/31/2013 Defendants Motion to Continue Trial (DocumentThe Motion is pending a resolution.

11. The government summarizes its interpretation of Browns speedy trial issue:

Date Action Days Tolled DaysRun

Total

Days Run

Feb. 4, 2013 see 9. Speedy Trialclock begins to run -Court finds Browncompetent

Feb. 13, 2013 see 10(a) and (e)Governments Motionis not resolved fullyuntil the MagistrateCourt issues its orderon May 30, 2013

106 days

9 days 9 days

Feb. 26, 2013 see 10(b). Since these motions arestill pending, the clockmay be tolled indefinitely.

June 18, 2013 -

June 20, 2013

see 10(g). If not tolled indefinitely

due to 10(b), 2 days *19 days 28 days

June 21, 2013 -July 3, 2013

see 10(h). If not tolled indefinitelydue to 10(b), 12 days

1 day 29 days

July 12, 2013 -July 15, 2013

see 10(j). If not tolled indefinitelydue to 10(b), 3 days

9 days 38 days

July 16, 2013 -July 17, 2013

see 10(k). If not tolled indefinitelydue to 10(b), 1 day

1 day 39 days



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Date Action Days Tolled DaysRun

Total

Days Run

July 19, 2013 -July 22, 2013

see 10(l). If not tolled indefinitelydue to 10(b), 3 days

2 days 41 days

July 31, 2013 see 10(m). Pending

9 days

50 days (asof July 31,2013)

*For purposes of this chart, the government began counting from May 30, 2013.

12. If the Court grants Browns motion to continue the trial dates, the government

requests that this Court find that only 9 days have elapsed on the Speedy Trial Act, that

being the length of time between this court finding Brown competent to stand trial and the

date the government filed its pretrial motions which are still pending. In the alternative,

the government requests that this Court (1) require Brown to waive his rights to a speedy

trial, and (2) make appropriate findings pursuant to 18 U.S.C. 3161.

BROWN FAILS TO WAIVE HIS RIGHT TO A SPEEDY TRIAL

13. Browns cases have not been deemed complex. In his motion, Brown has not

produced or articulated his waiver of his speedy trial rights.

INACCURACIES IN BROWNS MOTION

14. In his motion, Brown identified four categories of discovery: (1) the 2 Terabyte

hard drive containing most of the data from the electronic devices seized during the search

warrants at Browns and his mothers residence, (2) DVDs containing digital evidence

(either obtained digitally from the source of the data or by scanning from paper



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documents), (3) the search warrant documents, and (4) the transcript of a court proceeding

(Browns initial appearance, probable cause, and detention hearing).1

15. The government produced item #2 to the defense in January 2013 and #1 to the

defense on February 1, 2013. The government understands its obligation to continue to

produce any newly obtained items obtained during its preparation for trial. The search

warrant documents (Item #3), while discoverable, did not constitute evidence as is

commonly associated with discovery. The government produced the seven search2

warrants in a timely manner for the defense to review. The production of the search

warrant documents also constituted an early production ofJencks. Item #4 is not an item

of discovery. (See 16).

16. Brown wrongfully claimed that the initial appearance, probable cause, and

detention hearing transcript (Item #4) is a category of discovery. Brown wrongfully

stated that it was the governments obligation to provide him a copy of a transcript of a

court proceeding that had not yet been transcribed. Brown is wrong on both points.

Brown and his prior attorney of record were present and participated at the initial

appearance, probable cause, and detention hearing. If Brown wanted the transcript of a

court proceeding, it was his responsibility to order the same from the court. In this case

the proceedings were sealed, but Brown had the ability and responsibility to file a motion

1 The defense failed to identify other already items produced by the government, including but notlimited, to all the forensic reports, the chain of custody documents, Browns statements, Browns criminalhistory, the recorded jail calls from Mansfield and FCI Fort Worth, Browns emails from FCI Fort Worth,and visitation records.2 The seven search warrants related to the searches of 2 different physical locations and two differentsources of data. The affidavits for the search warrants contained substantially the same information.



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to unseal and transcribe the proceedings, if he wanted a transcript. Since the hearing date

(September 13, 2012) to the filing date of his motion (July 31, 2013), Brown failed to

exercise due diligence and failed to order the transcript from the Magistrate Judges court.

17. If the government had such a transcript, it would normally turn over the transcript to

the defense pursuant toJencks, and that production would not happen until a day before the

witness testified pursuant to local practice. In this case, the government did what the

defense could have done, it submitted a request for the transcript to be conditionally

unsealed and transcribed. However, the government has agreed to assist the defense and

produce this particularJencks material early; that is, to provide a copy of its transcript to

the defense, once the same has been transcribed and delivered to the undersigned.

DISCOVERY AND DUE DILIGENCE

18. The defense contends in its motion that they are preparing for this case with due

diligence. The government disagrees. The current defense team failed to consult with

the undersigned prior to agreeing to represent Brown. It has been the undersigneds

experience that defense counsel commonly confer with the prosecution to ascertain the

amount of discovery expected in the case.

19. The current defense team has not meet in person with the prosecution team to

discuss the discovery, the cases, or the upcoming trials. It has been the undersigneds

experience that defense counsel commonly meet in person on numerous occasions with the



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prosecution to facilitate the discovery process. The undersigned has extended numerous

invitations to the defense to meet with them regarding the discovery and upcoming trials.3

20. The bulk of the discovery was in the possession of the prior defense counsel since

approximately February 1, 2013. Browns new defense team has been representing

Brown since the hearing on May 1, 2013. In his motion, the new defense team did not

retrieve Browns file from the prior attorney until sometime in June 2013.

21. The current defense team describes the discovery in Browns cases as substantial.

While the 2 Terabyte hard drive contains a substantial amount of data (i.e. less than 2

Terabytes), it pales in comparison to other more complex cases tried in this district with

hundreds of Terabytes of data.

PUBLICITY

22. Further delays in the trial date will allow the defense to continue to defy the United

States Magistrate Judges admonishment on May 1, 2013, that being not to try the case in

the media. The government is aware of dozens of instances (before and after the

admonishment) wherein Brown has or others on his behalf have solicited the services of

the media or media-types to discuss his cases. Since May 1, 2013, the government has

reason to believe that Browns attorney coordinates and/or approves the use of the media.

Most of the publicity about Brown thus far contain gross fabrications and substantially

false recitations of facts and law which may harm both the government and the defense

3 Browns prior counsel and forensic examiner met with the government in February 2013, to discussthe evidence contained in the 2 Terabyte hard drive.



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during jury selection. The following are a few examples of the

defense-solicited/encouraged publicity.

23. On March 7, 2013, from the Mansfield Jail, Brown telephoned a person with

Vice.com on several occasions, wherein the person interviewed Brown regarding his case

and Project PM. The article was made public on March 26, 2013 at vice.com.

24. In March 2013, from the Mansfield Jail, Brown telephoned a person with The

Guardian, wherein the person interviewed Brown regarding his case. The article was

made public on March 21, 2013.

25. In April 2013, Brown had numerous conversations with an individual who wanted

to do a documentary on Brown and Project PM. In June 2013 and July 2013, the

documentary was being worked on, but has yet to be made public.

26. On May 3, 2013, the self-proclaimed founder and director of the website

www.freebarrettbrown.org told Brown on the telephone that he coordinated all media

through Browns legal counsel. He told Brown that RT America requested to do a

program about Brown, and there were inquiries from dallasnews.com. Brown confirmed

that he and his attorney have a media strategy, and acknowledged that the attorney will be

reviewing the possibility of a documentary. Browns friend produced and made public

two articles about Brown and his criminal cases, one on July 13, 2013 and the other on July

31, 2013.



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

that Browns lawyers had discussions with a specific media person to arrange an in-person

interview with Brown at the jail.

28. On June 6, 2013, Brown told a person from the Rolling Stone to do a story on

Brown, and instructed the person to coordinate with his attorney.

29. During July 2013 and August 2013, Brown discussed with other persons the

probability of Esquire, Rolling Stone, and/or Vice making certain articles public. Brown

commented that his attorney was involved.

30. Between May 1, 2013 and current date, part of the media strategy included

soliciting comments from journalists, authors, and other high profile individuals to

comment publically about Browns criminal charges, said public comments being posted

at http://freebarrettbrown.org/supporters/.

31. Several times a week since his incarceration, Brown requested another person to

search the Internet for Browns name and to tell Brown what comments had been made

about him or articles had been written about him. Brown also requested that the person

access Twitter.com and tell Brown how many times those commentaries or articles had

been retweeted.

32. Brown has shown his intent to continue to manipulate the public through press and

social media comments, in defiance of the admonishment by the United States Magistrate

Judge. Based on the articles already published, there is a substantial likelihood that

extrajudicial commentary made by or condoned by the defense will undermine a fair



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trial. United States v. Brown, 218 F.3d 415, 428 (5th Cir. 2000). Whether or not the

trial is continued, the government requests this Honorable Court to instruct the parties to

refrain from making any statement to members of any television, radio, newspaper,

magazine, internet (including, but not limited to, bloggers), or other media organization

about this case, other than matters of public record. United States v. Hill, 420 Fed.Appx.

407, 410 (5th Cir. 2011), United States v. Davis, 904 F.Supp 564 565 (E.D.La. 1995).4

CONCLUSION

33. The government respectfully requests that this Honorable Court deny the defenses

second motion to continue the trial date; or in the alternative, after (1) finding good cause

for the continuance, (2) finding that the speedy trial act will accommodate a continuance,

and (3) restricting the parties use of the media, continue the trial to the weeks of March 10,

2014, March 17, 2014, April 28, 2014, or any week in May 2014.

Respectfully submitted,

SARAH R. SALDAAUNITED STATES ATTORNEY

S/ Candina S. HeathCANDINA S. HEATHAssistant United States AttorneyState of Texas Bar No. 093474501100 Commerce Street, 3rd FloorDallas, Texas 75242Tel: 214.659.8600 Fax: [email protected]

4 Upon request, the government can provide to the Court more detail on the above examples, as wellas additional examples.



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CERTIFICATE OF SERVICE

I hereby certify that on August 7, 2013, I electronically filed the foregoingdocument with the clerk for the U.S. District Court, Northern District of Texas, using the

electronic case filing (ECF) system of the court. The ECF system sent a "Notice ofElectronic Filing" to Browns attorneys of record Ahmed Ghappour, Charles Swift, andMarlo Cadeddu, who consented in writing to accept this Notice as service of this documentby electronic means.

S/ Candina S. HeathCANDINA S. HEATHAssistant United States Attorney



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DALLAS DIVISION________________________________

UNITED STATES OF AMERICA No: 3:12-CR-317-Lv. No: 3:12-CR-413-L

No: 3:13-CR-030-LBARRETT LANCASTER BROWN

MOTION FOR LEAVE TO REPLY TO GOVERNMENTS RESPONSE

BARRETT LANCASTER BROWN, through his counsel, pursuant to L.Cr.R.47.1(f),

respectfully request leave to file replies in support of the following motions:

1. Defendants Motion to Continue Trial and Pretrial Deadlines. 3:12-CR-317-L, Dkt. 80.2. Defendants Motion to Continue Trial and Pretrial Deadlines. 3:12-CR-413-L, Dkt. 43.3. Defendants Motion to Continue Trial and Pretrial Deadlines. 3:13-CR-030-L, Dkt. 43.

Counsel have received and reviewed the Governments responses to these motions

and seek leave to reply to the arguments therein as the Governments responses (1) introduce

a new issue; (2) rely on case law that is distinguishable from the present case, and (3) are

predicated on inaccurate assumptions which the defendants must explain in order for this

Court to fairly rule on the issues raised in their motions.

CONCLUSION

For the reasons set forth above, the Defendant respectfully request that the Court

grant the defendants motion for leave to file the above replies.


-s-Ahmed Ghappour .



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AHMED GHAPPOURPro Hac Vice

Civil Rights ClinicUniversity of Texas School of Law

727 East Dean Keeton St.

Austin, TX 78705415-598-8508512-232-0900 (facsimile)

[email protected]

CHARLES SWIFTPro Hac Vice

Swift & McDonald, P.S.1809 Seventh Avenue, Suite 1108

Seattle, WA 98101206-441-3377

206-224-9908 (facsimile)[email protected]

MARLO P. CADEDDU

TX State Bar No. 24028839Law Office of Marlo P. Cadeddu, P.C.

3232 McKinney Ave., Suite 700Dallas, TX 75204

214.744.3000214.744.3015 (facsimile)

[email protected]

Attorneys for Barrett Lancaster Brown

CERTIFICATE OF CONFERENCE

I certify that on August 8, 2013, I conferred with Ms. Candina Heath, counsel for the

government and she is in agreement with the relief requested.

/s/ Ahmed GhappourAHMED GHAPPOUR

/s/ Charles Swift

CHARLES SWIFT/s/ Marlo P. CadedduMARLO P. CADEDDU

Attorneys for Barrett Brown



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I certify that today, August 8, 2013, I filed the instant motion using the Northern Districtof Texass electronic filing system (ECF) which will send a notice of filing to all counsel of

record.


/s/ Charles SwiftCHARLES SWIFT

/s/ Marlo P. CadedduMARLO P. CADEDDU




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DALLAS DIVISION________________________________

UNITED STATES OF AMERICA No: 3:12-CR-317-Lv. No: 3:12-CR-413-L

No: 3:13-CR-030-LBARRETT LANCASTER BROWN

REPLY TO GOVERNMENTS RESPONSE IN OPPOSITION

TO MOTION TO CONTINUE TRIAL AND PRETRIAL DEADLINES

BARRETT LANCASTER BROWN, through his counsel, respectfully submits this

memorandum in Reply to the governments Response in Opposition to his Motion to Continue

Trial and Pretrial Deadlines.

INTRODUCTION

Defendant Barrett Lancaster Brown moved to continue trial and pretrial deadlines on July

31, 2013 explaining that more time is required in order to adequately prepare his defense in light

of the ongoing forensic processing of the Electronic Stored Information (ESI) images. The

government opposed on August 8, 2013, and, in its Opposition requested the Court issue a Gag

Order to [i]nstruct the parties to refrain from making any statement to members of any

television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other

media organization about this case, other than matters of public record. GB at 12. For the

reasons articulated in Points I and II, below, the Court should grant Mr. Browns continuance

and deny the Governments request.

Case 3:12-cr-00317-L Document 82-1 Filed 08/08/13 Page 1 of 10 PageID 323


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I.

THE COURT SHOULD GRANT THE CONTINUANCE

A. A Continuance is Needed in Order to Process and Review Forensic Evidence.As stated in Mr. Browns motion, the basis of Mr. Browns request for a continuance is

that more time is required by the forensic vendor in order to adequately prepare the Electronic

Stored Information (ESI) images for attorney review. The ESI images contain, inter alia, data

from Mr. Browns laptops, which are directly relevant to all charges in all indictments, in

addition to being at the center of conduct charged in the 12:CR:413 and 13:CR:030 Indictments.

Thus, Mr. Brown cannot prepare for trial without reviewing the content of the ESI images still

being processed.1. However, Mr. Brown cannot access the content of the ESI images, let alone

conduct a meaningful review, until processing is complete. As stated in the moving papers, the

forensic vendor estimates that processing the ESI images will take an additional two months

time. Given the amount of material, simply having the material ready for review, does not mean

that it has been reviewed. As previously indicated, counsel estimates one month of review from

completion of the processing.

There is no reason to believe that substitution of counsel has delayed this case

significantly, if at all. When counsel entered the case on May 1, 2013, the ESI images were still

being processed by the FPD Investigator, who indicated repeated delays in the ESI processing

1

While the government is correct that the size of the ESI in this case pales in comparison to

other more complex cases tried in this district with hundreds of Terabytes of data, GB at 9, thatdoes not change the fact that undersigned counsel cannot prepare for trial without reviewing the

ESI.



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due to viruses and malware present within the medium, in addition to time constraints caused by

the furlough.2

As stated in Mr. Browns motion, counsel for the defendant has worked diligently to

prepare for trial. The government disagrees, arguing that [t]he bulk of the discovery was in the

possession of the prior defense counsel since approximately February 1, 2013, and the new

defense team did not retrieve Browns file from the prior attorney until sometime in June 2013.

To be clear, counsel conferred with the Office of the Federal Public Defender (FPD) prior to, and

on, May 1, 2013, and requested the discovery materials in their possession. The defense has

diligently catalogued the discovery received in June of 2013, and continues to review that which

is accessible. As noted, simply because the ESI images have been received does not mean that

they can be accessed. The ESI images must beprocessedby a forensics expert before counsel

can conduct a meaningful review. Simply put, the defense cannot review the bulk of the

discovery until it has been processed.

The government also argues that the current defense team has not meet [SIC] in person

with the prosecution team to discuss the discovery, the cases, or the upcoming trials, GB at 8

(emphasis added). To the contrary, counsel for Mr. Brown has conferred, corresponded and had

telephonic meetings with the government on numerous occasions regarding various case issues,

including discovery and other pretrial issues. For instance, on June 25, 2013, counsel emailed

the government indicating that he had received discovery from the FPD, that he had catalogued

the files that were in an accessible format, and requested the search warrants and related

affidavits in this case. Again, on July 1, 2013 counsel sent the government a discovery letter.

See Defense Motion to Continue, Ex. A. As noted, the government did not reply to that letter

2

As noted by Magistrate Stickney, counsels acceptance of this case has relieved the public of a

significant financial burden.



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until July 12, 2013, and did not produce the search warrants until July 15, 2013. Between July

15, 2013, and the filing date of the motion at issue, July 31, 2013, the defense has exchanged

several emails and telephone calls with the government. Undersigned counsel welcomes the

opportunity to meet government counsel in person and negotiate additional pre-trial issues, once

discovery review is completed.

Finally, no prejudice will result to the government by continuing this trial. In addition,

the government continues to provide discovery, the most recent batch of which was received

between July 29-31, and contained electronic data.

B.

Speedy Trial

The governments Opposition states Brown failed to address Browns right to or waiver

of a speedy trial. As addressed in the moving papers, a district court may continue a case when:

the failure to grant such a continuance in a case which, taken as a whole, is not sounusual or so complex as to fall within clause (ii), [but] would . . . deny counsel

for the defendant or the attorney for the government the reasonable time necessaryfor effective preparation, taking into account the exercise of due diligence.

18 U.S.C. 3161(h)(8)(B)(iv).

The government argues that Browns attorney failed to explain whyseven months was

insufficient to in a non-complex case to prepare for trialId. at 1-2. In fact, as articulated above,

and in the moving papers, the defense has worked diligently since appearing in the case three

months ago. The hurdle faced by the defense at this juncture does not pertain to theirreview of

the discovery, rather the processing time required in order to make the ESI images accessible for

review. As such, the Speedy Trial Act provides the basis to exempt the case from the Acts time

limitations in order to allow defense counsel to adequately prepare the defense.

Alternatively, Mr. Brown waives his speedy trial rights. Counsel has confirmed his

waiver orally, and intends on submitting a signed waiver by August 20, 2013.



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II.

THE COURT SHOULD DENY

THE GOVERNMENTS REQUEST FOR A GAG ORDER

Mr. Browns Motion to Continue is not in any way related to the governments

implication that he intends to use the expanded time in order to try the case in the media, nor

does the evidence reflect as much.3

Upon entry into the case, counsel has advised Mr. Brown

that making statements about the charges he faces is not in his best interests. Counsel has also

advised Mr. Brown as to the Courts Protective Order, in addition to the guidelines imposed by

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), and its progeny, including United States v.

Brown, 218 F.3d 415, 430 (5th Cir. 2000). Mr. Brown has complied.

As such, a gag order is not warranted in this case, for several reasons. First, as detailed

below, Mr. Brown has made no statements to the media since undersigned counsel appeared on

the case. Second, Mr. Browns counsel have not made any statements to the media, except to

state matters of public record or to explain the steps of the legal process. Third, although Mr.

Browns purported associates may be making statements about this case, those statements were

not attributed to (and, at least as of May 1, 2013, are not properly attributable to) Mr. Brown. Mr.

Brown and his counsel are well aware of the importance of maintaining a large potential jury

pool in the Northern District of Texas, and at least since May 1, 2013, neither Mr. Brown nor his

counsel have engaged in any acts that could even arguably be characterized as effectively

3

At the outset, counsel objects to the governments use of a Response in Opposition to request a

gag order from the Court, noting that the government has not conferred with counsel. To theextent the Court is inclined to grant the governments cross-motion, the Defense would request

an opportunity to fully brief the matter.



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undermining or interfering with the selection of impartial jury members. Therefore, the

governments request for a gag order should be flatly rejected as unwarranted.

The cases cited by the government all includedstatements regarding thespecific evidence

in the case. See United States v. Hill, 420 F. App'x 407, 412 (5th Cir. 2011) (defendant

referenced a clear statistical and anecdotal body of evidence);Brown, 218 F.3d at 429

(defendants released wiretap recordings to press and participated in extensive interviews about

the same). By contrast, the government does not cite anystatements as the basis for their request

for a gag order. Rather, the government admonishes the defense for condoning media

coverage of Mr. Brown, GB at 11, and argues that the defense coordinates and/or approves of

the use of the media. GB at 9. In support, the government recites a number of interviews

granted by Mr. Brown before undersigned counsel entered the case,4

GB at 10 ( 23, 24), and a

series of allegations that are irrelevant and do not merit a gag order.

For instance, the government states that Brownsfriendconfirmed in a statement to the

press (posted on August 7, 2013) that lawyers had discussions with a specific media person to

arrange an in-person interview with Brown in jail. GB at 11 (27). Presumably, the specific

media person referenced by the government is Michael Hastings, a journalist, friend and

colleague of Mr. Brown who passed away on June 18, 2013 in Los Angeles California. Counsel

does not dispute that Mr. Hastings, as with many other members of the media, contacted counsel

seeking an in-person interview with Mr. Brown. To counsels knowledge, Mr. Hastings did not

visit or conduct an in-person interview Mr. Brown before his death.

The government also references numerous conversations in April 2013 between Mr.

Brown and an individual who wantedto do a documentary on Brown. GB at 10 (25).

4

The government does not recite statements made by Mr. Brown in these interviews that it

claims are in violation ofGentile, Brown, et al.



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Counsel has received numerous requests from members of the media, including documentary

filmmakers, to interview Mr. Brown. Counsel has advised members of the media seeking an in-

person interview with Mr. Brown that there is a Protective Order in place, that members of the

media would need authorization from all the relevant parties including the authorities at

Mansfield Correctional, and that Mr. Brown would be advised not to answer any questions

unless submitted in advance, and in writing, so that counsel could screen questions to comply

with the Courts Protective Order, Gentile,Brown, et al.

After being advised of these conditions, no media outlet has conducted an in-person or

telephonic interview with Mr. Brown that counsel is aware of.

5

One media outlet, Rolling Stone

magazine, has complied with counsels conditions and received comments by Mr. Brown that

were well within the standards set forth in Gentile, Brown, et al. Additionally, counsel for Mr.

Brown has made brief comments about the case comprising general statements about the nature

of the allegations and the defense, and statements of matters of public record,Brown, 218 F.3d

at 429-30.6

Indeed, an inspection of the visitor log at Mansfield Correctional should reveal that no

members of the media, including Mr. Hastings, or a documentary filmmaker have met with

Mr. Brown since counsels entry in the case. Thus, the governments assertion that counsel is

coordinating prison visits by journalists, documentary filmmakers and other members of the

media to manipulate the media is without merit.

5

One media outlet, Rolling Stone magazine, has solicited and received comments by Mr. Brown

that were well within the standards set forth in Gentile, Brown, et al.6

Mr. Swifts statements were limited to those made immediately after his appearance. Mr.

Ghappour has also made limited statements, including a comment to Rolling Stone magazine fora forthcoming publication. Both Mr. Swift and Mr. Ghappours comments were made in full

accordance with the standards set by Gentile, Brown, et al.



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8

The government also states that most of the publicity about Brown thus far contain gross

fabrications and substantially false recitations of facts and law which may harm both the

government and the defense during jury selection. GB at 9-10. Rather than citing to actual

misconduct, the government makes a leap that counsel condones false coverage. This is not a

basis to issue a gag order. See United States v. Brown, 218 F.3d 415, 430 (citing to Smith v.

Goguen, 415 U.S. 566 (1974)) (A restraining order of any type is unconstitutionally vague if it

fails to give clear guidance regarding the type of speech that an individual may not utter.) This

cases profile, on its own, should have no bearing on the Courts disposition in this matter.

Members of the media are interested in Mr. Brown. Their interest long precedes counsels

involvement in the case, and the case itself.7

To the contrary, the media interest in this case,

coupled with Mr. Browns radio silence and counsels minimal commenting on general matters,

only underscores that the governments request for a gag order is without merit.

The government also makes several references to Mr. Browns friends and

supporters. GB at 10 ( 26, 30). While counsel was retained by the Barrett Brown Legal

Defense Fund, it was made clear at the onset of the case that the Fund could not have any input

on Mr. Browns legal matters. Similarly, counsel cannot and does not control Mr. Browns

supporters. Nor would relief requested by the government bind members of the public

including Mr. Browns supporters, and the media. As such, the governments statements

regarding First Amendment activities by Mr. Browns supporters, and other members of the

public, are irrelevant and should have no bearing on the issue. GB at 26, 30.

Finally, the government states that [d]uring July 2013 and August 2013, Brown

discussed with other persons the probability of Esquire, Rolling Stone, and/or Vice making

7

Prior to his arrest, Mr. Brown made frequent media appearances on networks such as MSNBC,

and Fox News, and was a featured commentator in several recent documentary films.



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9

certain articles public. Brown commented that his attorney was involved. Indeed, Mr. Brown

is a journalist that has published in Vanity Fair, the Guardian, Huffington Post, and other media

outlets. Mr. Brown continues to write op-eds for publication. See, e.g., The Guardian, The

cyber-intelligence complex and its useful idiots, Barrett Brown (July 1, 2013) (Exhibit A).

However, Mr. Browns publications do not discuss the case at all. Mr. Brown has a First

Amendment right to speak and publish on matters unrelated to his case. Brown, 218 F.3d at 429

(citingProcunier v. Martinez, 416 U.S. 396 (1974)) (It is axiomatic that the limitation on First

Amendment freedoms must be no greater than is essential to the protection of the particular

governmental interest involved). Nonetheless, Mr. Brown sends all publications to counsel for

review to ensure that the publications are not case related. Therefore, any mischaracterization of

Mr. Browns publications as misconduct should have no bearing on the issue before the Court.

CONCLUSION

For the reasons set forth above, the Mr. Brown respectfully request that the Court

grant the defendants Motion to Continue Trial and Pretrial Deadlines, and deny the

governments request for a gag order.


-s-Ahmed Ghappour .AHMED GHAPPOUR

Pro Hac ViceCivil Rights Clinic

University of Texas School of Law727 East Dean Keeton St.

Austin, TX 78705415-598-8508

512-232-0900 (facsimile)[email protected]

CHARLES SWIFT

Pro Hac ViceSwift & McDonald, P.S.



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10

1809 Seventh Avenue, Suite 1108Seattle, WA 98101

206-441-3377206-224-9908 (facsimile)

[email protected]

MARLO P. CADEDDUTX State Bar No. 24028839

Law Office of Marlo P. Cadeddu, P.C.3232 McKinney Ave., Suite 700

Dallas, TX 75204214.744.3000

214.744.3015 (facsimile)[email protected]



I certify that today, August 8, 2013, I filed the instant motion using the Northern Districtof Texass electronic filing system (ECF) which will send a notice of filing to all counsel of

record.


/s/ Charles SwiftCHARLES SWIFT

/s/ Marlo P. CadedduMARLO P. CADEDDU




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8/8/13 2:he cyber-intelligence complex and its useful idiots | Barrett Brown | Comment is free | theguardian.com

Page ttp://www.theguardian.com/commentisfree/2013/jul/01/cyber-intelligence-complex-useful-idiots

The cyber-intelligence complex and its useful idiots

J Edgar Hoover (right, with President Richard Nixon) ran the FBI's illegal Cointelpro domestic political surveillance scheme. Photogra

Bettmann/Corbis

It's a fine thing to see mainstream American media outlets finally sparing some of their attentio

toward the cyber-industrial complex that unprecedented conglomeration of state, military an

corporate interests that together exercise growing power over the flow of information. It would

even more heartening if so many of the nation's most influential voices, from senator to pundi

were not clearly intent on killing off even this belated scrutiny into the invisible empire that

thoroughly scrutinizes us at our own expense and to unknown ends.

Summing up the position of those who worry less over secret government powers than they d

over the whistleblowers who reveal such things, we have New York Times columnist Thom

Friedman, who argues that we can trust small cadres of unaccountable spies with broad powe

over our communications. We must all wish Friedman luck with this prediction. Other proclam

tions of his including that Vladimir Putin would bring transparency and liberal democracy

Russia, and that the Chinese regime would not seek to limit its citizens' free access to the interne

have not aged especially well.

An unkind person might dismiss Friedman as the incompetent harbinger of a dying republic. Beipolite, I will merely suggest that Friedman's faith in government is as misplaced as faith in the ju

and benevolent God that we know not to exist Friedman having been the winner of several of t

world's most-coveted Pulitzer Prizes.

If Friedman is, indeed, too quick to trust the powerful, it's a trait he shares with the just over half

Americans, who tell pollsters they're fine with the NSA programs that were until recently hidd

http://www.theguardian.com/world/nsahttp://www.nytimes.com/2013/06/12/opinion/friedman-blowing-a-whistle.html?_r=0


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from their view. Why, our countrymen wonder, ought we to be disturbed by our state's desire

know everything that everyone does? Given the possibility that this surveillance could perha

prevent deaths in the form of terrorist attacks, most Americans are willing to forgo some abstra

notion ofprivacy in favor of the more concrete benefits of security.

Besides, the government to which we're ceding these broad new powers is a democracy, overse

by real, live Americans. And it's hard to imagine American government officials abusing thepowers or at least, it would be, had such officials not already abused similar but more limite

powers through repeated campaigns of disinformation, intimidation and airtight crimes directed

the American public over the last five decades. Cointelpro, Operation Mockingbird, Ultra an

Chaos are among the now-acknowledged CIA, FBI and NSA programs by which those agenci

managed to subvert American democracy with impunity. Supporters of mass surveillance condu

ed under the very same agencies have yet to address how such abuses can be insured against in t

context of powers far greater than anything J Edgar Hoover could command.

Many have never heard of these programs; the sort of people who trust states with secret authoritend not to know what such things have led to in the recent past. Those who do know of su

things may perhaps contend that these practices would never be repeated today. But it was ju

two years ago that the late Michael Hastings revealed that US army officials in Afghanistan we

conducting psy-ops against visiting US senators in order to sway them towards continued fundin

for that unsuccessful war. If military and intelligence officials have so little respect for the civili

leadership, one can guess how they feel about mere civilians.

Not that anyone need merely guess. Discussing the desirability of such "information operations"

his 2001 book, retired USAF Lt Col George Crawford noted that voters tend to view these sorts programs with suspicion. "Consequently," he concludes, "these efforts must take place away fro

public eyes."

And so they do. If we want to learn a thing or two about the latest round of such programs th

is, if we are willing to disregard the Thomas Friedmans of this world we must look not just t

wards the three letter agencies that have routinely betrayed us in the past, but also to the unto

number of private intelligence contracting firms that have sprung up lately in order to betray us

a more efficient and market-oriented manner. Our lieutenant colonel, scourge of "public eyes",

among the many ex-military and intelligence officials who have left public service, or public obfucation or whatever we're calling it now to work in the expanding sphere of private spookery,

which is outsourced information operations by the Pentagon, spy agencies, and even other corp

rations who need an edge over some enemy (in Crawford's case, the mysterious Archimedes Glo

al).

So, how trustworthy is this privatized segment of the invisible empire? We would know almo

http://www.archimedesglobal.com/Default.aspxhttp://www.guardian.co.uk/commentisfree/2013/jun/14/edward-snowden-investigate-booz-allenhttp://www.amazon.com/Manhunting-Reversing-Polarity-George-Crawford/dp/1604413328/ref=sr_1_1?s=books&ie=UTF8&qid=1372690473&sr=1-1http://www.rollingstone.com/politics/news/another-runaway-general-army-deploys-psy-ops-on-u-s-senators-20110223http://www.theguardian.com/world/fbihttp://www.theguardian.com/world/ciahttp://en.wikipedia.org/wiki/COINTELPROhttp://www.theguardian.com/world/privacyhttp://www.theguardian.com/world/surveillance


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nothing of their operations were it not for a chance turn of events that prompted Anonymous-aff

ated hackers to seize 70,000 emails from one typical firm back in early 2011. From this more-or-le

random sampling of contractor activity, we find a consortium of these firms plotting to intimida

attack and discredit WikiLeaks and those identified as its key supporters, including the (then S

lon, now Guardian) journalist Glenn Greenwald a potentially illegal conspiracy concocted on b

half of corporate giant Bank of America, which feared exposure by WikiLeaks, and organized u

der the auspices of the Department of Justice itself.

We find several of the same firms which collectively referred to themselves as Team Themis i

volved in another scheme to deploy sophisticated software-based fake people across social n

works in order to infiltrate and mislead. For instance, Themis proposes sending two of these "pe

sonas" to pose online as members of an organization opposed to the US Chamber of Commerce, a

other prospective Themis client, in order to discredit the group from within. Yet another revelatio

involves a massive cross-platform military program of disinformation and surveillance directed

the Arab world; still another relates how one NSA-inked firm can monitor and attack online infr

structure throughout the world, including western Europe, and will rent these capabilities out those with a few million dollars to spend on such things.

And Booz Allen Hamilton, which has received some belated scrutiny as the eminently powerf

employer of NSA leaker Edward Snowden, was apparently in talks with Themis participant H

Gary Federal regarding its own still-secret "project" involving, again, WikiLeaks. These are simp

a few of the revelations stemming from a portion of the email correspondence among a handful

major contracting firms a tiny, serendipitous sampling of what such firms are doing for their go

ernment and corporate clients as they compete for contracts.

Hundred of these sorts of companies have come about in the last few years, operating in close pa

nerships with the state, yet existing beyond the view of Congress, the media and "public eye

Even in the unlikely instance when their activities come to light, potentially illegal behavior go

unpunished; even calls by congressmen to investigate the sordid Themis conspiracy were ignor

by the Department of Justice, which, of course, set the whole thing in motion to begin with throu

its recommendation.

This, then, is the environment in which public officials and Beltway insiders like Friedman are as

ing us to trust the intelligence community and its private partner firms with increasing power ovinformation. It's an age in which even the limited rules in place can be broken with impunity by t

powerful even as journalists and activists who cross them are targeted for destruction by stat

corporate alliances armed with increasingly sophisticated cyber weapons, propaganda techniqu

and surveillance authority.

This is the world we accept if we continue to avert our eyes. And it promises to get much worse.

http://www.dailykos.com/story/2011/02/15/944614/-HBGary-Themis-bloggers-and-traditional-media-What-a-tangled-Web#http://www.dcbureau.org/201306148757/bulldog-blog/booz-allen-hamilton-corporate-intelligence.htmlhttp://www.theguardian.com/world/edward-snowdenhttp://www.theguardian.com/media/wikileakshttp://www.guardian.co.uk/commentisfree/2013/jun/24/surveillance-us-national-security


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8/8/13 2:he cyber-intelligence complex and its useful idiots | Barrett Brown | Comment is free | theguardian.comCase 3:12-cr-00317-L Document 82-2 Filed 08/08/13 Page 4 of 4 PageID 336

Documents

Fight Over Barrett Brown Continuance and Gag Order