Case 3:12-cr-00317-L Document 84 Filed 08/09/13

Page 1 of 8 PageID 338

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ________________________________ UNITED STATES OF AMERICA v. BARRETT LANCASTER BROWN

No: 3:12-CR-317-L No: 3:12-CR-413-L No: 3:13-CR-030-L

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. 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

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, that 1

Case 3:12-cr-00317-L Document 84 Filed 08/09/13

Page 2 of 8 PageID 339

conduct a meaningful review, until processing is complete.2 Given the amount of material, simply having the material ready for review, does not mean that it has been reviewed.3 There is no reason to believe that substitution of counsel has delayed this case significantly, if at all.4 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. The ESI images must be processed by a forensics expert before counsel can conduct a meaningful review. 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

does not change the fact that undersigned counsel cannot prepare for trial without reviewing the ESI. 2 As stated in the moving papers, the forensic vendor estimates that processing the ESI images will take an additional two months time. 3 As previously indicated, counsel estimates one month of review from completion of the processing. 4 As noted by Magistrate Stickney, counsels acceptance of this case has relieved the public of a significant financial burden. 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 due to viruses and malware present within the medium, in addition to time constraints caused by the furlough. 2

Case 3:12-cr-00317-L Document 84 Filed 08/09/13

Page 3 of 8 PageID 340

telephonic meetings with the government on numerous occasions regarding various case issues, including discovery and other pretrial issues.5 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. The government argues that Browns attorney failed to explain why seven months was insufficient to in a non-complex case to prepare for trial Id. at 1-2. In fact, 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 their review 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. 18 U.S.C. 3161(h)(8)(B)(iv). 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.

5 For

instance, in the week of June 4, counsel had numerous phone and email communications with the government about the Protective Order, and mentioned that discovery had yet to be received. 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 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. 3

Case 3:12-cr-00317-L Document 84 Filed 08/09/13

Page 4 of 8 PageID 341

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.6 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 undermining or interfering with the selection of impartial jury members. Therefore, the governments request for a gag order should be flatly rejected as unwarranted. 6 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 the extent the Court is inclined to grant the governments cross-motion, the Defense would request an opportunity to fully brief the matter. 4

Case 3:12-cr-00317-L Document 84 Filed 08/09/13

Page 5 of 8 PageID 342

The cases cited by the government all included statements regarding the specific 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). 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 429-30.7 Notably, and in stark contrast to the case law cited, the government does not cite any statements 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,8 GB at 10 ( 23, 24), and a series of irrelevant allegations that do not merit a gag order. For instance, the government states that Browns friend confirmed 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. The government also references numerous conversations in April 2013 between Mr. Brown and an individual who wanted to do a documentary on Brown. GB at 10 (25). Counsel has made limited statements, including a comment to Rolling Stone magazine for a forthcoming publication. All comments are in full accordance with Gentile, Brown, et al. 8 The government does not recite statements made by Mr. Brown in these interviews that it claims are in violation of Gentile, Brown, et al.
7

Case 3:12-cr-00317-L Document 84 Filed 08/09/13

Page 6 of 8 PageID 343

Indeed, counsel has received numerous requests from members of the media, including documentary filmmakers, to interview Mr. Brown. To the extent possible, 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.9 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. The governments assertions are without merit. Rather than citing to actual misconduct, the government makes a leap that counsel condones false coverage.10 This is not a basis to issue a gag order. See Brown, 218 F.3d at 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.11 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. 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. 10 The government 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. 11 The medias interest in Mr. Brown long precedes counsels involvement in the case, and the case itself. 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.
9

Case 3:12-cr-00317-L Document 84 Filed 08/09/13

Page 7 of 8 PageID 344

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 10 ( 26, 30) (making references to Mr. Browns friends and supporters.). When 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. Finally, the government takes issue with Mr. Browns journalism.12 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.13 See Exh. A. Mr. Browns publications do not discuss this case at all.14 Therefore, any mischaracterization of Mr. Browns publications as misconduct should have no bearing on the issue before the Court. Brown, 218 F.3d at 429 (citing Procunier 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). CONCLUSION For the reasons set forth above, Mr. Brown respectfully requests the Court to grant the his Motion, and deny the governments request for a gag order. Respectfully submitted, -s- Ahmed Ghappour .

12 See GB at 11 (29) [d]uring 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. 13 See, e.g., The Guardian, The cyber-intelligence complex and its useful idiots, Barrett Brown (July 1, 2013) (Exhibit A). 14 Mr. Brown has a First Amendment right to speak and publish on matters unrelated to his case. Nonetheless, Mr. Brown sends all publications to counsel for review to ensure that the publications are not case related. 7

Case 3:12-cr-00317-L Document 84 Filed 08/09/13

Page 8 of 8 PageID 345

AHMED GHAPPOUR Pro Hac Vice Civil Rights Clinic University of Texas School of Law 727 East Dean Keeton St. Austin, TX 78705 415-598-8508 512-232-0900 (facsimile) aghappour@law.utexas.edu CHARLES SWIFT Pro Hac Vice Swift & McDonald, P.S. 1809 Seventh Avenue, Suite 1108 Seattle, WA 98101 206-441-3377 206-224-9908 (facsimile) cswift@prolegaldefense.com MARLO P. CADEDDU TX State Bar No. 24028839 Law Office of Marlo P. Cadeddu, P.C. 3232 McKinney Ave., Suite 700 Dallas, TX 75204 214.744.3000 214.744.3015 (facsimile) mc@marlocadeddu.com Attorneys for Barrett Lancaster Brown

CERTIFICATE OF SERVICE I certify that today, August 9, 2013, I filed the instant motion using the Northern District of Texass electronic filing system (ECF) which will send a notice of filing to all counsel of record. /s/ Ahmed Ghappour AHMED GHAPPOUR /s/ Charles Swift CHARLES SWIFT /s/ Marlo P. Cadeddu MARLO P. CADEDDU Attorneys for Barrett Lancaster Brown

The cyber-intelligence complex and its useful idiots | Barrett Brown | Comment is free | theguardian.com

Case 3:12-cr-00317-L Document 84-1 Filed 08/09/13

Page 1 of 4 PageID 346

8/8/13 2:42 PM

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. Photograph: Bettmann/Corbis

It's a fine thing to see mainstream American media outlets finally sparing some of their attention toward the cyber-industrial complex that unprecedented conglomeration of state, military and corporate interests that together exercise growing power over the flow of information. It would be even more heartening if so many of the nation's most influential voices, from senator to pundits, were not clearly intent on killing off even this belated scrutiny into the invisible empire that so 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 do over the whistleblowers who reveal such things, we have New York Times columnist Thomas Friedman, who argues that we can trust small cadres of unaccountable spies with broad powers over our communications. We must all wish Friedman luck with this prediction. Other proclamations of his including that Vladimir Putin would bring transparency and liberal democracy to Russia, and that the Chinese regime would not seek to limit its citizens' free access to the internet have not aged especially well. An unkind person might dismiss Friedman as the incompetent harbinger of a dying republic. Being polite, I will merely suggest that Friedman's faith in government is as misplaced as faith in the just and benevolent God that we know not to exist Friedman having been the winner of several of the 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 of Americans, who tell pollsters they're fine with the NSA programs that were until recently hidden
http://www.theguardian.com/commentisfree/2013/jul/01/cyber-intelligence-complex-useful-idiots Page 1 of 4

The cyber-intelligence complex and its useful idiots | Barrett Brown | Comment is free | theguardian.com

Case 3:12-cr-00317-L Document 84-1 Filed 08/09/13

Page 2 of 4 PageID 347

8/8/13 2:42 PM

from their view. Why, our countrymen wonder, ought we to be disturbed by our state's desire to know everything that everyone does? Given the possibility that this surveillance could perhaps prevent deaths in the form of terrorist attacks, most Americans are willing to forgo some abstract notion of privacy in favor of the more concrete benefits of security. Besides, the government to which we're ceding these broad new powers is a democracy, overseen by real, live Americans. And it's hard to imagine American government officials abusing their powers or at least, it would be, had such officials not already abused similar but more limited powers through repeated campaigns of disinformation, intimidation and airtight crimes directed at the American public over the last five decades. Cointelpro, Operation Mockingbird, Ultra and Chaos are among the now-acknowledged CIA, FBI and NSA programs by which those agencies managed to subvert American democracy with impunity. Supporters of mass surveillance conducted under the very same agencies have yet to address how such abuses can be insured against in the 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 authority tend not to know what such things have led to in the recent past. Those who do know of such things may perhaps contend that these practices would never be repeated today. But it was just two years ago that the late Michael Hastings revealed that US army officials in Afghanistan were conducting psy-ops against visiting US senators in order to sway them towards continued funding for that unsuccessful war. If military and intelligence officials have so little respect for the civilian leadership, one can guess how they feel about mere civilians. Not that anyone need merely guess. Discussing the desirability of such "information operations" in his 2001 book, retired USAF Lt Col George Crawford noted that voters tend to view these sorts of programs with suspicion. "Consequently," he concludes, "these efforts must take place away from public eyes." And so they do. If we want to learn a thing or two about the latest round of such programs that is, if we are willing to disregard the Thomas Friedmans of this world we must look not just towards the three letter agencies that have routinely betrayed us in the past, but also to the untold number of private intelligence contracting firms that have sprung up lately in order to betray us in a more efficient and market-oriented manner. Our lieutenant colonel, scourge of "public eyes", is among the many ex-military and intelligence officials who have left public service, or public obfuscation or whatever we're calling it now to work in the expanding sphere of private spookery, to which is outsourced information operations by the Pentagon, spy agencies, and even other corporations who need an edge over some enemy (in Crawford's case, the mysterious Archimedes Global). So, how trustworthy is this privatized segment of the invisible empire? We would know almost
http://www.theguardian.com/commentisfree/2013/jul/01/cyber-intelligence-complex-useful-idiots Page 2 of 4

The cyber-intelligence complex and its useful idiots | Barrett Brown | Comment is free | theguardian.com

Case 3:12-cr-00317-L Document 84-1 Filed 08/09/13

Page 3 of 4 PageID 348

8/8/13 2:42 PM

nothing of their operations were it not for a chance turn of events that prompted Anonymous-affiliated hackers to seize 70,000 emails from one typical firm back in early 2011. From this more-or-less random sampling of contractor activity, we find a consortium of these firms plotting to intimidate, attack and discredit WikiLeaks and those identified as its key supporters, including the (then Salon, now Guardian) journalist Glenn Greenwald a potentially illegal conspiracy concocted on behalf of corporate giant Bank of America, which feared exposure by WikiLeaks, and organized under the auspices of the Department of Justice itself. We find several of the same firms which collectively referred to themselves as Team Themis involved in another scheme to deploy sophisticated software-based fake people across social networks in order to infiltrate and mislead. For instance, Themis proposes sending two of these "personas" to pose online as members of an organization opposed to the US Chamber of Commerce, another prospective Themis client, in order to discredit the group from within. Yet another revelation involves a massive cross-platform military program of disinformation and surveillance directed at the Arab world; still another relates how one NSA-inked firm can monitor and attack online infrastructure throughout the world, including western Europe, and will rent these capabilities out to those with a few million dollars to spend on such things. And Booz Allen Hamilton, which has received some belated scrutiny as the eminently powerful employer of NSA leaker Edward Snowden, was apparently in talks with Themis participant HBGary Federal regarding its own still-secret "project" involving, again, WikiLeaks. These are simply a few of the revelations stemming from a portion of the email correspondence among a handful of major contracting firms a tiny, serendipitous sampling of what such firms are doing for their government 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 partnerships with the state, yet existing beyond the view of Congress, the media and "public eyes". Even in the unlikely instance when their activities come to light, potentially illegal behavior goes unpunished; even calls by congressmen to investigate the sordid Themis conspiracy were ignored by the Department of Justice, which, of course, set the whole thing in motion to begin with through its recommendation. This, then, is the environment in which public officials and Beltway insiders like Friedman are asking us to trust the intelligence community and its private partner firms with increasing power over information. It's an age in which even the limited rules in place can be broken with impunity by the powerful even as journalists and activists who cross them are targeted for destruction by statecorporate alliances armed with increasingly sophisticated cyber weapons, propaganda techniques 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.theguardian.com/commentisfree/2013/jul/01/cyber-intelligence-complex-useful-idiots Page 3 of 4

The cyber-intelligence complex and its useful idiots | Barrett Brown | Comment is free | theguardian.com

Case 3:12-cr-00317-L Document 84-1 Filed 08/09/13

Page 4 of 4 PageID 349

8/8/13 2:42 PM

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

Page 4 of 4