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Gift From FNU LNU

Gift From FNU LNU

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Published by Houston Chronicle

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Published by: Houston Chronicle on Oct 29, 2012
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10/29/2012

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF TEXASHOUSTON DIVISIONUNITED STATES OF AMERICA §§ VS. §CR. NO. H - 12 -578§TAM NGUYEN § GOVERNMENT RESPONSE TO DEFENDANTSMOTION TO DISMISSTO THE HONORABLE JUDGE OF SAID COURT
:COMES NOW the United States of America, by and through Kenneth Magidson, theUnited States Attorney for the Southern District of Texas, and would show this HonorableCourt in response to the defendant’s Motion to Dismiss as follows:1. The first paragraph of Mrs Silverman’s Motion to dismiss contain several mis-statements of facts. On October 9, 2012 the experts were at DEA and had began
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selecting samples of the plants pursuant to the Court’s Order of October 4, 2012 [Docket#194]. The defense expert had been at DEA for about an hour collecting the samplespursuant to the Court’s Order before Mr. Silverman arrived. I had been informed by the Agents assisting in the collection, that the experts had stated that they were under instructions to collect only stems and root balls and not plant material.The Agents, along with the experts who wanted a break, went to the lobby area toescort Mr. Silverman into the vault area. The Agents informed Mr. Silverman that he wouldbe recorded while he was in the vault area. Mr. Silverman stated “that would be fine, let’s
Case 4:12-cr-00578 Document 213 Filed in TXSD on 10/12/12 Page 1 of 8
 
go”. When all arrived in the vault area Mr. Silverman met briefly with the experts in privateby stepping down the hall. Nothing was overheard nor recorded by the agents. When Mr.Silverman finished his conversation with the experts, he was informed that we needed toclarify exactly what was going to be collected. Mr. Silverman was never interrogated,confronted nor were demands made of him. He was simply asked if the experts wereinstructed to collect stems and not plant material. We needed to be clear to avoid any mis-communications about any collections of plants to be tested pursuant to the Court’s Order.This part of our conversation was recorded and yes Mr. Silverman asked not to berecorded even after he stated to the Agent that he was not opposed to it. He did state thathe did not give such instructions to the experts. It did not matter what the expertscollected as samples. The purpose of the recorded conversation was to avoid anyconfusion later or claims that the experts did not follow Mr Silverman’s instructions.The only true allegation in the first paragraph of the Motion is that a recording wasmade of the conversation with Mr. Silverman. Because of his previous false statement thathe and his experts were told by me to leave DEA on October 1, he was called a “liar:” It
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is an outright false statement that Mr. Silverman was harassed and not allowed to consultwith his experts without being recorded. One cannot ever envision Mr. Silverman ever feeling harassed by a prosecutor, particularly this one.2. After Mr. Silverman left DEA on October 9, 2012, Mr. Wimbish and his assistantcompleted the collection of what samples they thought sufficient, to comply with Mr.Silverman’s wishes and the Court’s Order. They inspected and took photographs of everybag of the houses searched on August 21, 2012, but only selected samples of stems androot balls from 19 locations. None of the samples collected contain leafy matter and were
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Case 4:12-cr-00578 Document 213 Filed in TXSD on 10/12/12 Page 2 of 8
 
not truly representative samples.3. Since Mrs. Silverman chose to bring up what happen on the prior occasions, her mis-statements of the facts require correcting again. Magistrate Judge Nancy Johnsongave the defense a specific time frame until September 16 to count and inspect the
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marijuana plants, allowing for the destruction of the plants after that time. The plants werecounted taking the entire week of September 10. What followed next was a series of 
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Motions and responses ending up with the defense collecting samples of the marijuana onOctober 1, 2012, to be tested by an independent lab.The defense experts arrived first on October 1, 2012, and began to collect samples. All was going well until Mr. Silverman arrived. Mr. Silverman was shown by his expertswhat samples they had collected and Mr. Silverman was visibly upset. The followingconversation occurred in the vault among the marijuana plant with the Agents present.Mr. Silverman stated that he was not pleased. He stated that he wanted samples from theplants that did not contain THC. The expert informed Mr. Silverman that all parts of theplants have THC with various levels of THC being present. Mr. Silverman instructed theexpert to only collect samples from the area of the plants that would not have THC. At thispoint, Mr. Silverman and the experts left DEA to confer and returned a short time later.It seemed that Mr. Silverman and the experts had come to an agreement as to what wasto be collected.Shortly after their return to DEA, the Agent called and informed me that Mr.Silverman wanted to count the plants over again. The plants had already been countedby the same experts taking the full week of September 10. I informed Mr. Silverman ove
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the telephone that the current Order allowed the taking of samples and not counting.
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Case 4:12-cr-00578 Document 213 Filed in TXSD on 10/12/12 Page 3 of 8

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