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UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-20715-CR-COOKE
UNITED STATES OF AMERICA,
Plaintiff,
v.
SALO SCHAPIO, et al.,
Defendants.
_____________________________/
DEFENDANT SALO SCHAPIROS REPLY MEMORANDUM
IN SUPPORT OF MOTION TO DISMISS OR FOR
DISQUALIFICATION OF PROSECUTION TEAM
Defendants motion sought two distinct remedies outright dismissal of the
indictment or disqualification of the prosecution team. With respect to the request for
dismissal, a showing of prejudice is indeed normally required. See United States v.
Morrison, 449 U.S. 361 (1981)). Defendant intends to make that showing at the
scheduled hearing. Moreover, if it proves to be true that the United States Attorneys
Office (USAO) has been deliberately engaged in surreptitiously spying on the
defense bars work product (document selection) since 2006, we believe that the
Court retains the authority to dismiss the Indictment under its supervisory powers
without a showing of prejudice. Federal courts have a general authority to require
procedures deemed desirable from the viewpoint of sound judicial practice although
in no-wise commanded by statute or by the Constitution. Cupp v. Naughten, 414

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U.S. 141, 146 (1973). See also Communist Party v. Subversive Activities Control
Board, 351 U.S. 115, 124 (1956); Ballard v. United States, 329 U.S. 187, 193
(1946). As the Supreme Court declared in Communist Party, [t]he untainted
administration of justice is certainly one of the most cherished aspects of our
institutions, and [i]ts observance is one of our proudest boasts. 351 U.S. at
124. Through their supervisory powers, courts ensure that the administration of
justice conforms to civilized standards of procedure and evidence. McNabb v.
United States, 318 U.S. 332, 340 (1943). Though rare, courts have dismissed
indictments under their supervisory powers because of serious misconduct. See, e.g.,
United States v. Hogan, 712 F.2d 757 (2d Cir. 1983). And, Morrison did not
completely eliminate that power.
With respect to the disqualification request, the government says very little
other than suggesting that Morrison governs there as well. It does not. The less
severe sanction of disqualification is governed by completely different and less
burdensome standards. We use the remainder of this Reply primarily to focus the
Court on the disqualification remedy.

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I.

PRELIMINARY STATEMENT OF FACTS


A.

The Undisputed Facts and Legal Principles

While the facts need to be flushed out at the scheduled hearing, at this point
there seems to be (or should be) agreement on some basic facts, including:
! Since at least 2006 the USAO has required defense counsel in every
criminal case to utilize one and only one third-party vendor, companies
owned by Ignacio Montero, for photocopying those portions of
discovery isolated by defense counsel as sufficiently important for
reproduction.
! In this case, a government agent, Deanne Lindsey, served as the
conduit between defense counsel and Mr. Monteros companies.
! Until the conduct at issue herein was uncovered in April 2016, the
government had never issued written instructions to Mr. Montero (or,
we assume, to supervising agents, if any) to maintain the confidentiality
of the documents defense counsel were selecting for copying.
! Mr. Montero has alleged in an email that since 2006 he has been
providing the U.S.D.O.J. in a majority of the cases disks (for free)
containing copies of the discovery that defense counsel selected for
copying.

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! Although the USAO claims that, in reality, the number of instances


in which defense counsel had selected only portions of the discovery for
copying were infrequent and rare, the government appears to concede
that this occurred at least 3 or 4 times. Govt. Opp., p. 16 n. 8.1/
! Therefore, the USAO knew or should have known that it was the
recipient of privileged material (discrete sets of discovery documents
selected as important by defense counsel) but never disclosed that fact
to anyone, never notified defense counsel in question and never took
steps to stop the practice.
! A central member of the prosecution team, FBI Special Agent
Deanne Lindsey, received, over a 16-month period, 11 computer disks
from Mr. Montero containing copies of those portions of the discovery
that undersigned counsels office had selected for copying and use in
defending Dr. Schapiro. Id., p. 8.
! SA Lindsay reviewed at least 4 of the disks a few times beginning
on some unidentified date in March 2016. Id., pp. 8-10.2/

1/

As discussed below, Mr. Schapiro does not agree with the accuracy of this estimate given the short
time the USAO has been investigating the allegation.
2/

None of the assertions about what SA Lindsay actually allegedly saw or used were supported by
sworn statements of any kind.

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! SA Lindsay knew or reasonably should have known3/ that defense


counsels choices in selecting documents important enough to copy is
protected by both the work product privilege and the Fifth and Sixth
Amendments.
! When defense counsel discovered what had happened, including Mr.
Monteros allegations about a systemic problem going back to 2006, the
USAO chose to investigate the matter itself, rather than refer the
matter to the Department of Justice for an independent investigation.
! As part of its attempt to investigate itself, the USAO has already
interviewed several important witnesses in this dispute, including SA
Lindsay, Mr. Montero, and two USAO staff members who dealt with
Mr. Montero (Sandra Ortiz and Lazaro Feliciano).
! The USAO has not walled off the prosecution team from its
investigation and, indeed, has allowed Dr. Schapiros own prosecutors
to both litigate this dispute (to date at least) and interview witnesses
(specifically including Mr. Montero).4/

3/

Although the government has not conceded this point, every experienced FBI agent and certainly
the ones assigned to assist in discovery should be expected to know privilege-related issues.
4/

The government has revealed that the prosecutors themselves interviewed Mr. Montero but is
vague about who conducted the other interviews. See Govt. Opp., pp. 14-16.

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! The USAO has only have been investigating this matter since late
April apparently through an email blast sent only to the currently
employed AUSAs.5/
B.

The USAO Doubles Down

Not surprisingly in light of the foregoing choices, the prosecutors have doubled
down in their Opposition, arguing among other things that neither they nor any other
member of the prosecution team should be disqualified because:
! Dr. Schapiros prosecutors did not have actual knowledge that this
was going on and are not vicariously responsible for the conduct of
other members of the prosecution team, including SA Lindsey.
! So far at least, no current AUSA in the office has acknowledged
knowing that this practice has been going on since 2006.

The

government ignores what the Miami Office of the FBI knew.


! Dr. Schapiros prosecutors acted with sufficient promptness in
notifying counsel about this matter on April 21, 2016 apparently
regardless of SA Lindsays failure to say anything for 16 months (and
the USAOs failure to say anything for years).

5/

It is unclear whether this investigation encompasses the FBI whose agents would have been the
ones in direct contact with Mr. Montero.

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! Mr. Montero had allegedly been acting unilateral[ly] i.e., without


being asked or instructed by anyone to provide defense work product to
AUSAs or agents working under their supervision.
! Defense counsels decision-making in selecting and compiling subsets
of discovery for copying is not protected by either the work product
privilege or the constitution.
! Even if protected in theory, Dr. Schapiro has the burden of proving
actual prejudice allegedly meaning that he must prove that the
prosecution team actually used the knowledge gained from the
document review in preparing their case.
! In any event, defense counsel presumably both the undersigned and
every defense counsel since 2006 have waived their work product
and Sixth Amendment protections by never protesting the involvement
of agents in coordinating with Mr. Monteros companies.
! While conceding that the investigation is only getting started, the
USAO is nonetheless asking this Court to already conclude that this
matter is all much ado about nothing.

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II.

DISQUALIFICATION IS REQUIRED UNDER THE PROPER STANDARD


A.

The Multi-Factor Test

In determining whether disqualification is warranted when the attorney-client


or work product privileged material is seen by or conveyed to opposing counsel
(whether inadvertently, accidentally or deliberately), courts have analyzed a number
of important factors, including:
1) Whether the attorney knew or should have known that the material
was privileged upon receipt;
2) The adequacy and timeliness of any screening safeguards employed
to shield against intrusions into the privilege or to investigate possible
violations;6/
3) The promptness with which the attorney notifies the opposing side
that he or she has received privileged information;7/

6/

See generally Preventive Med. Assocs. v. Commonwealth, 465 Mass. 810, 992 N.E.2d 257 (2013)
(listing four essential component[s] a sine qua non of a valid taint team procedure); Kala v.
Aluminum Smelting & Ref. Co., 688 N.E.2d 258, 266 (Ohio 1998) (listing elements of an effective
screen); RESTATEMENT (THIRD) OF LAW GOVERNING LAWYERS 124 cmt. d (2000)
(discussing screening).
7/

See generally In re Meador, 968 S.W.2d 346, 351-52 (Tex. 1998) (noting that a trial court should
consider ... the promptness with which the attorney notifies the opposing side that he or she has
received its privileged information); ABA/BNA LAWYERS MANUAL ON PROFL CONDUCT
51:1905 (noting that courts will consider [w]hether the lawyer took prompt action to attempt
resolve the problem once it came to light).

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4) The extent to which the attorney reviews and digests the privileged
information;
5) The significance of the privileged information; i.e., the extent to
which its disclosure may prejudice the privilege holders claim or
defense;
6) The extent to which the privilege holder may be at fault for the
unauthorized disclosure; and
7) The extent to which the violator will suffer prejudice from the
disqualification.
See Richards v. Jain, 168 F. Supp. 2d 1195 (W.D. Wash. 2001) (adopting In re
Meador, 968 S.W.2d 346 (Tex. 1998)). Accord Maldonado v. New Jersey, 225 F.R.D.
120, 138 (D. N.J. 2004). Although the appearance of impropriety is usually not
enough, standing alone, to require disqualification, many courts at least consider it
to be a relevant factor, specifically including the Florida Supreme Court.8/
8/

See Optyl Eyewear Fashion Intl Corp. v. Style Companies, Ltd., 760 F.2d 1045, 1049 (9th Cir.
1985) (holding that the appearance of impropriety can be a sufficient ground for disqualification);
Arnold v. Cargill Inc., No. 01-2086 (DWF/AJB), 2004 U.S. Dist. LEXIS 19381, at *16 (D. Minn.
Sept. 24, 2004) (Among the facts to be considered in determining whether [the law firms] conduct
warrants disqualification are the Courts duty to maintain public confidence in the legal profession
and its duty to insure the integrity of the judicial proceedings.) (citation omitted); Lewis v. Capital
One Servs., No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *13-14 (E.D. Va. June 10, 2004)
(noting that there are many cases where attorneys were disqualified despite no violation of the
attorneys duty to his or her client, but to avoid the appearance of impropriety); MMR/Wallace
Power & Indus., Inc. v. Thames Assoc., 764 F . Supp. 712, 718 (D. Conn. 1991) (where the asserted

(continued...)

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Among other attributes of the appearance standard, it can require


disqualification even in the absence of actual prejudice.9/ Indeed, pursuant to 5 C.F.R.
2635.501, government employees, including prosecutors, are directed to take [ ]
appropriate steps to avoid an appearance of loss of impartiality in the performance of
his [/her] official duties. Unless he or she receives prior authorization from an
8/

(...continued)

course of conduct by counsel threatens to affect the integrity of the adversarial process, [the court]
should take appropriate measures, including disqualification, to eliminate such taint) (citation
omitted); State ex rel. Winkler v. Goldman. , No. ED104030, 2016 Mo. App. LEXIS 320, at *15
(Mo. App. Apr. 5, 2016) (ordering disqualification of prosecutors office for privilege violation in
part to remove any appearance of impropriety).
Many states have amended their rules to eliminate specific references to the appearance of
impropriety. However, Florida and many courts still consider it a factor. Baybrook Homes, Inc. v.
Banyan Const. & Dev., Inc., 991 F. Supp. 1440, 1444 (M.D. Fla. 1997) (The Supreme Court of
Florida removed the express requirement to avoid the appearance of impropriety when it modified
the Rules Regulating the Florida Bar.... Nevertheless, according to the Supreme Court of Florida and
the United States District Court for the Middle District of Florida, Florida law retains a requirement
to avoid even the appearance of impropriety.). See also Gomez v. Superior Court, 717 P.2d 902,
904 (Ariz. 1986); Villalpando v. Reagan, 121 P.3d 172, 177 (Ariz. App. 2005); Turbin v. Superior
Court, 797 P.2d 734, 738 (Ariz. App. 1990); Speckels v. Baldwin, 512 N.W.2d 171, 176 (S.D. 1994)
(internal citations omitted).
9/

See State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630, 633-34 (Fla. 1991) ([W]e do not
believe that a different standard now applies because the specific admonition to avoid the appearance
of impropriety does not appear in the Rules of Professional Conduct.... Accordingly, we disagree
with the court below that actual proof of prejudice is a prerequisite to disqualification under these
circumstances.); People v. Davenport, 760 N.W.2d 743, 748-50 (Mich. App. 2008) (The trial court
erroneously focused on whether defendant could prove actual prejudice arising from the conflict of
interest, instead of requiring the prosecutor to prove the absence of impropriety.); id. at 748 n.3
(quoting People v. Doyle, 406 N.W.2d 893, 899 (Mich. App. 1987)) (The general rule is that a
conflict of interest involving the elected county prosecutor himself requires recusal of the prosecutor
and the entire staff. Since assistant prosecutors act on behalf of the elected county prosecutor and
are supervised by him, the policies of fairness to the defendant and the avoidance of an appearance
of impropriety require this result.); Pisa v. Commonwealth, 393 N.E. 2d 386, 389 (Mass. 1979)
(The rules of disqualification ... are applied not only to prevent prejudice to a party, but also to
avoid even the appearance of impropriety.).

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appropriate agency official, an attorney should not participate in a particular matter.


. . .if he[/she] determines that a reasonable person with knowledge of the relevant
facts would question his impartiality in the matter. See also 5 C.F.R. 2635.502;
28 C.F.R. 45.2(b)(2). See generally American Bar Association, Standards, The
Prosecution Function, 1.2 (1971) (A prosecutor should avoid the appearance or
reality of a conflict of interest with respect to his official duties.).
B.

Application of the Factors to the Prosecution Teams


Conduct
1.

The Prosecution Team knew or should have


known that it had obtained privileged
materials

The government disputes this factor on two fronts. First, it argues that the there
was not even a potential work product or constitutional violation here and,
presumably, also nothing wrong with the USAOs conduct over the past ten years
even if it was deliberate because a defense lawyerss document selection process
is allegedly not protected at all. Govt. Opp., pp. 23-28. Second, the government
argues that even if it might be, SA Lindseys conduct is not attributable to them
because the prosecutors themselves did not have actual knowledge of the intrusion.
The Court should reject both arguments.

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a.

Document selection by counsel for internal


use is protected by both the work product
doctrine and the constitution

The court in United States v. Horn, 811 F. Supp. 739 (D. N.H. 1992), affd in
relevant part, revd in part on other grounds, 29 F.3d 754 (1st Cir. 1994), squarely
held that the document selection process is protected under a similar fact pattern a
federal prosecution team secretly keeping track of discovery documents chosen by the
defense for photocopying. See Horn , 811 F. Supp. at 747 (recognizing that the [t]he
high degree of selectivity resulting in a relatively small number of documents being
copied would convey defense counsels thought processes).10/
In apparently arguing that Horns threshold privilege holding was wrongly
decided, the only authorities cited by the government are civil cases which involve
documents provided by counsel to witnesses who used the documents to prepare for
their testimony and thus would not remain secret. See In re San Juan Dupont Plaza
Hotel Fire Litig., 859 F.2d 1007, 1017 (1st Cir. 1988) (... the challenged order does
not result in the evulgation of matters which would otherwise remain perpetually
hidden. When the deposition is held and examination commences, the questioners

10/

See also Sporck v. Peil, 759 F.2d 312, 315-317 (3d Cir. 1985) (selection process can create
opinion work product even though the documents themselves do not qualify for work product
protection); Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613, 616 (S.D.N.Y. 1977)
(notebooks representing counsels ordering of facts, referring to the prospective proofs,
organizing, aligning, and marshaling empirical data categorized as work product).

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document selection, and the stratagems it reveals, will become obvious to all.
Requiring preidentification merely moves up the schedule, accelerating disclosures
which would inevitably take place.). See also Avant Garde Engg & Res. Ltd. v.
Nationwide Equip. Co., No. 11-cv-525-J-20TEM, 2013 U.S. LEXIS 69075, at **2324; 2013 WL 2106817, at *9 (M.D. Fla. May 15, 2014) (deposition witness); In re
Trasylol Products Liab. Litig., No. 08-MD-1928, 2009 U.S. Dist. LEXIS 46488, 2009
WL 936597 (S.D. Fla. Apr. 7, 2009) (Middlebrooks, J.) (important fact witness).11/
The line of cases relied upon by the government is wholly inapposite, because it
involves situations where counsel used the selection process to prepare witnesses who
could be subject to cross-examination about the bases for their testimony or opinions.
Courts simply do not permit a party to wield the work product privilege as both a
shield and a sword using it not only for internal preparation but to bar otherwise
proper cross-examination. See Hambarian v. Comm'r of Internal Rev., 118 T.C. 565,
570 (2002) (to be subject to work product protection, party must show both that the
disclosure might reveal the lawyers thoughts and the lawyer had [a] justifiable
expectation that such mental impressions revealed by the materials would remain
private )(emphasis added). See also Gould Inc. v. Mitsui Mining & Smelting Co., 825

11/

The only criminal case cited by the government was an unpublished opinion by the Second Circuit
involving a search warrant which was used to seize company records which included a handful of
documents concededly protected by the attorney client privilege. See United States v. Walker, 243
Fed. Appx. 621 (2d Cir. 2007).

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F.2d 676, 680 (2d Cir. 1987). Indeed, that waiver principle has been codified in
various civil rules, including Fed. R. Evid. 612 (requiring a party to reveal any
writing if a witness uses a writing to refresh memory for the purposes of testifying
. . . .)12/ and Fed. R. Civ. P. 26(a)(2)(B)(requiring description of the information that
partys expert considered while preparing to testify).13/ In the instant case as well
as the many cases over the past decade when this practice was in place the
government obtained insights into defense counsels thought processes without

12/

See Chavis v. N.Carolina, 637 F.2d 213, 223-24 (4th Cir. 1980) (witness referred to work product
material and used it to bolster his credibility at trial. As a result, court ordered the material
produced). See also Lawson v. U.S. Dep't of Veterans Affairs, No. 97 Civ. 9239, 1998 WL 312239
(S.D.N.Y. June 12, 1998); In re Atl. Fin. Mgmt. Sec. Litig., 121 F.R.D. 141, 143-44 (D. Mass.
1988); James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144-46 (D. Del. 1982). Some courts
hedge and take a balancing approach in these situations. See, e.g., Sporck v. Peil, 759 F.2d 312, 318
(3d Cir. 1985); Bloch v. Smithkline Beckman Corp., No. Civ. A. 82-510, 1987 WL 9279 (E.D. Pa.
Apr. 9, 1987); Omaha Pub. Power Dist. v. Foster Wheeler Corp., 109 F.R.D. 615, 616-17 (D. Neb.
1986). For a thorough discussion of the competing rules and interests at stake in the civil witness
preparation context, see In re Xarelto (Rivaroxaban) Prods. Liab.Litig., MDL No. 2592, 2016 U.S.
Dist. LEXIS 47750 (E.D. La. Apr. 8, 2016).
13/

Most courts have concluded that Rule 26(a)(2)(B) requires the disclosure of all documents
reviewed by an expert witness while preparing to testify, including opinion work product. See, e.g.,
Ling Nan Zheng v. Liberty Apparel Co., Inc., No. 99 Civ. 9033 RCCHBP, 2004 WL 1746772, at *23 (S.D.N.Y. Aug. 3, 2004); S. Scrap Material Co. v. Fleming, No. Civ. 01-2554, 2003 WL
21474516, at *20 (E.D. La. June 18, 2003); Baum v. Village of Chittenango, 218 F.R.D. 36, 39-40
(N.D.N.Y. 2003); Mfg. Admin. and Mgmt. Sys., Inc. v. ICT Group, Inc., 212 F.R.D. 110, 115
(E.D.N.Y. 2002); Suskind v. Home Depot Corp., No. Civ. A. 99-10575, 2001 WL 92183 (D. Mass.
2001); Aniero Concrete Co. v. New York City Sch. Const. Auth., No. 94 Civ. 9111, 2002 WL
257685, at *2 (S.D.N.Y. Feb. 22, 2002); Musselman v. Phillips, 176 F.R.D. 194, 197 (D. Md. 1997);
Karn v. Ingersoll Rand, 168 F.R.D. 633, 635 (N.D. Ind. 1996); Furniture World, Inc. v. D.A.V. Thrift
Stores, 168 F.R.D. 61, 62 (D.N.M. 1996). Not all courts agree. See In re Cendant Corp. Sec. Litig.,
343 F.3d 658, 664-65 (3d Cir. 2003); Bogosian v. Gulf Oil Corp., 738 F.2d 587 (3d Cir. 1984);
Absolute United States v. 215.7 Acres of Land, 719 F. Supp. 273 (D. Del. 1989); Hamel v. Gen.
Motors Corp., 128 F.R.D. 281 (D. Kan. 1989).

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regard to counsels purpose or intended use of the documents. Accordingly, the cases
cited by the government provide no shelter for its practice.
The government has also ignored the distinction between civil and criminal
cases. In civil cases, both sides have equal and extremely broad discovery rights. In
contrast, in criminal cases both sides work in far more secrecy. On the one hand,
defendants discovery rights are cabined by Fed. R. Crim. P. 16 and the Brady
doctrine. The trade off is that criminal defendants and their counsel have the
constitutional right to prepare defenses outside the prying eyes and ears of both
agents and prosecutors. The Sixth Amendment right to effective assistance of counsel
thus protects not only courtroom activities but preparation outside the courtroom. See
generally Ferri v. Ackerman, 444 U.S. 193, 204 (1979) (an indispensable element
of the effective performance of [defense counsels] responsibilities is the ability to act
independently of the Government and to oppose it in adversary litigation). Since
privacy is vital to effective representation, the government is forbidden from
eavesdropping or planting agents to hear or disrupt councils of the defense. See
generally United States v. Henry, 447 U.S. 264 (1980); Weatherford v. Bursey, 429
U.S. 545 (1977); Black v. United States, 385 U.S. 26 (1966); OBrien v. United
States, 386 U.S. 345 (1967); Hoffa v. United States, 385 U.S. 293, 306 (1966). As
one court succinctly put it, a defendant has the right to prepare in secret, seeing and

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inviting those he deems loyal or those with whom he is willing to risk consultation
and, therefore, the governments intrusion offends both the Fifth and Sixth
Amendment. In re Terkeltoub, 256 F. Supp. 683, 685 (S.D.N.Y. 1966) (citations
omitted). See generally United States v. Nobles, 422 U.S. 225, 238 (1975) (in criminal
cases the role of the work product privilege in assuring the proper functioning of the
criminal justice system is even more vital than in civil cases. Therefore, the Court
should reject the governments claim that defense counsels document selection
process is fair game for surreptitious intrusions.
b.

The entire prosecution team is responsible for


SA Lindseys conduct

Contrary to the government, as leaders of the prosecution team, their


constructive knowledge of facts did not end with their own personal knowledge.
See generally Kyles v. Whitley, 514 U.S. 419, 437-38, 115 S. Ct. 1555, 131 L. Ed. 2d
490 (1995); Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed.
2d 286 (1999); United States v. Martinez, 621 F.2d 184, 186-87 (5th Cir. 1980).
When SA Lindsey received discs containing only copies of what defense counsel
chose to copy, she knew or should have known that she was in possession of
potentially privileged material and that knowledge was attributable to the prosecutors.
See generally Arnold v. Secretary, Department of Corrections, 595 F.3d 1324 (11th
Cir. 2010) (per curiam), adopting Arnold v. McNeil, 622 F. Supp. 2d 1294, 1314-16
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(M.D. Fla. 2009) (finding a Brady violation where a police officer who was clearly
a key member of the prosecution team withheld evidence about his own
contemporaneous illegal involvement with local drug dealing and imput[ing] his
knowledge to the prosecution). The prosecution team for Brady purposes includes
anyone over whom the prosecutor has authority, Moon v. Head, 285 F.3d 1301,
1309 (11th Cir. 2002), and anyone acting on the government's behalf in the case.
United States v. Reyeros, 537 F.3d 270, 281 (3rd Cir. 2008) (citing Kyles). See also
United States v. Martinez, 621 F.2d 184, 187 (5th Cir. 1980) (information known by
an assistant medical examiner attributable to the State). Therefore, in a variety of
contexts, knowledge of information possessed by agents or others is vicariously
attributable to the prosecutors themselves.14/

14/

See, e.g., McCormick v. Parker, No. 14-7095, 2016 U.S. App. LEXIS7998, at *14 (10th
Cir. May 3, 2016) (imputing knowledge of nurse expert to prosecutors); United States v.
Thornton, 1 F.3d 149, 158 (3rd Cir. 1993) (charging prosecutors with constructive knowledge
of DEA payments to government witnesses because prosecutors have an obligation to make
a thorough inquiry of all enforcement agencies that have a potential connection with their
witnesses); United States v. Burnside, 824 F. Supp. 1215, 1252 (N.D. Ill. 1993) (holding
that even if none of the U.S. Attorneys personnel nor the federal agents nor the police
officers had been as aware of the undisclosed Brady material as they were, knowledge of the
information would still be attributed to the government since information possessed by
prison warden and jail personnel was readily available to the U.S. Attorneys Office for
the asking). See generally United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995)
(holding that the prosecution had constructive possession of information known only to an
agency, the Bureau of Prisons, that was not part of the prosecution team, explaining [w]e
therefore reject the district courts finding that the government has possession and control
over the files of only those agencies that participated in the investigation.).

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Similar principles apply to ethical rules. For example, under Rule 4-5.3(b) of
the Rules Regulating the Florida Bar, a lawyer having supervisory authority over nonlawyer assistants has a duty to make reasonable efforts to ensure that the nonlawyers conduct is compatible with the professional objections of the lawyer. Rule
4-5.3(c) similarly provides that lawyers must review and be responsible for the work
product of legal assistants. See also Rule 4-3.6(b) (in the publicity context, requiring
lawyers to prevent persons assisting in or associated with a case from making
extrajudicial statements that are prohibited under this rule).
2.

The inadequacy and untimeliness of the


safeguards employed
a.

The failure to bring in an independent taint team

When the prosecutors finally did obtain actual knowledge of SA Lindseys


conduct, they should have immediately disqualified themselves and anyone
associated with the prosecution team from investigating the matter. Instead, they took
charge of both the investigation and litigation themselves, even personally
interviewing Mr. Montero. Not only did they have a conflict in trying to, in effect,
investigate themselves, they risked gaining knowledge of the very privileged material
that the defense seeks to protect. Courts have been extremely critical of the
prosecutors who learn (for example, through the execution of search warrants) that
they may have come into possession of privileged material and failed to bring in
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independent taint teams to handle the situation. For example, the court in United
States v. Pedersen, No. 3:12-cr-00431-HA, 2014 U.S. Dist. LEXIS 106227, at *88
(D. Ore. Aug. 4, 2014), scathingly criticized the government for creating a filter team
protocol which allowed the same AUSA to work on both the filter team and the
prosecution team. As the court explained:
The second serious problem with the filter team protocol was that it
allowed [the filter AUSA] to assist the prosecution team. The protocol
specifically tasked her with reviewing privileged materials and then
allowed her to assist [the prosecution team] with other legal research,
writing, and analysis, at the district court level and in any appeals. Ex.
12 at 3. Even under the best of circumstances, there is a risk that
privileged material may flow from the taint team to the prosecution.
Renzi, 722 F. Supp. 2d at 1112 (the government taint team may have an
interest in preserving privilege, but it also possesses a conflicting
interest in pursuing the investigation, and, human nature being what it
is, occasionally some taint-team attorneys will make mistakes or violate
their ethical obligations) (citation and quotation omitted). The provision
allowing [the filter AUSA] to serve in dual roles, which she in fact did, is
difficult to understand and anathema to the very purpose of a taint team.
Id. at * 94.15/

15/

In rejecting the taint team approach entirely, the Sixth Circuit in In re: Grand Jury Subpoenas,
454 F.3d 511 (6th Cir. 2006), ruled that the presumed good faith of prosecutors and agents was not
enough:
....[T]he government taint team may have an interest in preserving the
privilege, but it also possesses a conflicting interest in pursuing the
investigation, and, human nature being what it is, occasionally some
taint-team attorneys will make mistakes or violate their ethical
obligations.... [A]n obvious flaw in the taint team procedure ... [is
that] the governments fox is left in charge of the appellants
henhouse, and may err by neglect or malice, as well as by honest

(continued...)

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In situations involving the seizure of privileged material, the United States Attorneys
Manual (USAM) expressly recommends that to ensure that the investigation is not
compromised by exposure to privileged material relating to the investigation or to defense
strategy, a privilege team should be designated, consisting of agents and lawyers not
involved in the underlying investigation. See USAM, Department of Justice, 913.000(E). See also United States Department of Justice, Searching and Seizing
Computers and Obtaining Electronic Evidence in Criminal Investigations, ch. 2(F)(2)(b)
(3d ed. 2009), at pp. 110-11 (requiring implementation of a taint procedure independent
of the prosecution team); In re Investigation of Bay Ingram, 915 F. Supp. 2d 761, 763
(E.D. La. 2012) (granting governments motion to order the use of an independent filter
team to avoid any disqualification of the agents and prosecutors pursing the criminal
investigation...) (quoting governments motion).
By choos[ing] to take matters into it own hands, the prosecutors should now
have the burden of proving that they did not learn and use any privileged material. United
States v. SDI Future Health, Inc., 464 F. Supp. 2d 1027, 1040 (D. Nev. 2006), quoting
United States v. Neill, 952 F. Supp. 834, 841 (D.D.C.1997) (placing burden on prosecutors
to rebut the presumption that tainted material was provided to the prosecution team).

15/

(...continued)
differences of opinion.

454 F.3d at 517.

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Case 1:14-cr-20715-MGC Document 188 Entered on FLSD Docket 06/07/2016 Page 21 of 30

b.

The inadequacy of the instructions given to the


non-lawyer agents and the third-party vendor

The prosecution team chose to entrust the document production process entirely to
an FBI agent and a third party vendor. Based on the USAOs prior experience with the
vendor, they knew or should have known that the vendor was routinely sending the Office
sets of everything defense counsel chose to copy. Yet, neither the USAO in general (over
a decade) or the prosecutors in this case took any steps to shield them from privileged
material. Nor did they assign any lawyer in the office to supervise the agent or vendor.
This pattern of willful blindness alone justifies disqualification. See Arnold v. Cargill Inc.,
No. 01-2086 (DWF/AJB), 2004 U.S. Dist. LEXIS 19381, at *25 (D. Minn. Sept. 24, 2004)
(disqualifying law firm, in part, for leaving it up to a witness not trained in the law and
therefore not in a position to determine what ... information [about his former employer]
was discloseable and what was not discloseable without the assistance of counsel);
Richards, 168 F. Supp. 2d at 1202-03 (granting disqualification because, although [a]
failure to properly supervise paralegals and other staff members would certainly not create
a per se rule of disqualification ... under the circumstances presented here ... failure to take
any reasonable measures to protect the attorney-client privilege through proper supervision
of a paralegal creates an appearance of impropriety).

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3.

The USAOs failure to promptly notify the defense bar


in general and the prosecution teams failure to notify
Dr. Schapiro that potentially privileged information
had been obtained

The USAO has been on actual or constructive notice for years that Mr. Montero has
been providing them with potentially privileged information. And, SA Lindsey knew or
should have known that she was the recipient of privileged material upon her receipt of the
first disc some 16 months ago. Under Rule 4-4.4(b) of the Rules Regulating the Florida
Bar, [a] lawyer who receives a document or electronically stored information relating to
the representation of the lawyers client and knows or reasonably should know that the
document or electronically stored information was inadvertently sent must promptly notify
the sender.16/ Whatever the source of the duty, courts have made clear that [a]n attorney
who receives privileged documents has an ethical duty to cease review of the documents,
16/

To be sure, Rule 4.4(b) is phrased in terms of an attorneys inadvertent discovery of privileged


materials, rather than having privileged materials intentionally obtained by the agents of opposing
counsel. If anything, the deliberate nature of Mr. Monteros conduct and the USAOs knowledge
of it should have placed a greater, not a lesser, responsibility on the prosecution team in this case.
Cf. Pedersen, 2014 U.S. Dist. LEXIS 106227, at **83-87 (D. Ore. Aug. 4, 2014) (criticizing
prosecutors for not notifying defense counsel when they learned agents had reviewed privileged
materials but holding that Oregon bar rule 4.4(b) was inapplicable where an attorney is
intentionally, rather than inadvertently, provided with privileged attorney-client communications;
finding instead that prosecutors violated Rule 8.4(a) which provides that it is professional
misconduct for a lawyers to .... (4) engage in conduct that is prejudicial to the administration of
justice); Burt Hill, Inc. v. Hassan, No. 09-1285, 2010 U.S. Dist. LEXIS 7492, at **11-14, 2010 WL
419433 (W.D. Penn. Jan. 29, 2010) (holding that while Pennsylvania Rule 4.4(b) only applies to
inadvertent disclosures, substantive law places a duty on counsel, upon discovering the
confidential nature of documents, to cease review, notify the owner, and abide by the owners
instructions regarding the documents disposition and holding that [t]he justifications underlying
the protections afforded to inadvertent productions, however, apply with even greater, and stricter,
force in connection with advertent but unauthorized disclosures) (citations omitted).

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notify the privilege holder, and return the documents. Arnold, 2004 U.S. Dist. LEXIS
19381, at *30. Accord Maldonado, 225 F.R.D. at 139-40; Richards, 168 F. Supp. 2d at
1200-01. Cf. United States v. Taylor, 764 F. Supp. 2d 230, 235 (D. Me. 2011) (I conclude
that the government behaved reasonably here by immediately seeking judicial instructions
once its agent noticed that e-mail headers reflected communications between lawyer and
client).
The USAO knew that the vendor that it was requiring all defense counsel to use was
providing the Office whether unilaterallyor at someones direction with potentially
privileged material on a routine basis. SA Lindsey knew she received such material as
early as December 2014 but did nothing. To our knowledge, no defense lawyer in this
district was ever made aware of this practice until it was exposed in this case. The fact
that the prosecutors told counsel about it, only after-the-fact, in April 2016 does not,
contrary to the government, inure to its benefit under these circumstances. Had defense
counsel not questioned Mr. Montero about his activities, it is unlikely that the prosecutors
would have ever notified them. These facts strongly support disqualification. See Horn,
811 F. Supp. at 748 (disqualifying prosecutor, pointing out that [h]aving been placed on
notice of the existing problem, the lead prosecutor had the opportunity, the authority, and
the duty to maintain the status quo by sealing the documents pending judicial review,
thereby avoiding any prejudice to the defendants, until the court had ruled on the matter);

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Maldonado, 225 F.R.D. at 139-140 (Plaintiffs failure to notify defense counsel and did not
admit to having the materials until it was discovered by Defendants ... weights heavily in
favor of disqualification); Richards, 168 F. Supp. 2d at 1206 (Plaintiffs failure to
explicitly notify Defendants of the disclosure of privileged information weighs in favor of
disqualification and noting that [t]he Court would be faced with a different case if the
attorney had stopped all work and sealed or destroyed the documents).
Moreover, the lengthy time period in which the prosecution team had improper
possession of privileged materials some 16 months adds further weight to the
disqualification remedy. Compare Arnold, 2004 U.S. Dist. LEXIS 19381, at *31-33 (law
firm blatantly risked creating the appearance of impropriety by conducting its own
privilege review and keeping documents for 18 months conduct which [a]t a minimum
... recklessly disregarded the risks associated with playing fast and loose with the rules
protecting against disclosure of privileged and confidential material); Richards, 168 F.
Supp. 2d at 1200, 1209 ([I]t is apparent that eleven months of access to privileged
materials creates an appearance of impropriety and so taints the proceedings that the harsh
remedy of disqualification is justified.), with Merits Incentives, LLC v. Eighth Jud. Dist.
Ct., 262 P.3d 720, 725-26 (Nev. 2011) (denying disqualification because attorney promptly
notified opposing counsel after receiving its documents on disk from an anonymous
source); Neill, 952 F Supp. at 841 (denying motion to dismiss, in part, because agent acted

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responsibly by sealing the materials without reading them and then delivered them to a
taint team for review).
4.

The prosecution teams possible uses of the


privileged information and its significance

This factor cannot be addressed in a public filing but will be addressed at the
scheduled hearing. We only point out here that the court in Richards found that the extent
of review factor weighed in favor of disqualification even though the paralegal who
reviewed privileged documents only viewed them on a computer screen and never printed
them out. See Richards, 168 F. Supp. 2d at 1207. The prosecution team appears to have
done far more than that. Lewis v. Capital One Services, Inc., 2004 U.S. Dist. LEXIS 26978
(E.D. Va. 2004) (plaintiffs counsel disqualified where the actual viewing of at least one
privileged document was established); In Re Mktg. Inv. Corp., 80 S.W.3d 44, 50-52 (Tex.
App. 1998) (because the former employees lawyer had reviewed the documents and
referenced them in new pleadings, the trial court abused its discretion in not
disqualifying [him].). Cf. Renzi, 722 F. Supp. 2d at 1116 (suppressing but declining to
disqualify the prosecutor for not promptly disclosing privileged emails inadvertently
discovered since the privileged communications were not accessed by the prosecution
team). Moreover, by any measure, the extent of the potential violation is enormous, a fact
that in and of itself weighs in favor of disqualification. See Richards, 168 F. Supp. 2d at
1207-08 (the sheer extent of the privileged material accessed, approximately 1,000
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privileged documents that were read, at least briefly, weighs factor in favor of
disqualification).
5.

The extent to which the defense can be faulted

The government bases much of its Opposition on the claim that defense counsel
invited the privilege intrusion because they allegedly knew that SA Lindsay was going to
personally see the documents set aside and replace them in the boxes after the
photocopying. That simply is not so. As will become clear at the hearing, the set aside
documents were placed in a box for delivery to Mr. Montero and counsel had no reason
to believe anyone associated with the prosecution team was going to be allowed to see
them upon their return to the FBIs facility for refiling. Moreover, the procedure itself has
been dictated by the government for over a decade. If that process creates a waiver then
all the judges in this District should expect: (1) defense counsel to refuse to allow any
government involvement in handling discovery; or (2) defense counsel including the
Federal Defenders Office and appointed CJA counsel to order the reproduction of all
the discovery in every case. Of course, the latter would mean that the Court itself will then
have to bear the cost for indigent defendants.
6.

Prejudice to the government from disqualification

In this case, the USAO is in no position to challenge disqualification based on the


prejudice to removing the prosecution team in this case when the Office has known

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about this practice for a decade. See Richards, 168 F. Supp. 2d at 1208 (Plaintiffs are
directly responsible for the breach of privilege, and thus, the deprivation of counsel of
choice does not weigh heavily against disqualification).
C.

Under the Totality of the Circumstances, Disqualification


Is Justified

As in Horn, Richards, Maldonado and Cargill, the foregoing factors strongly


support disqualification.
1) The USAO has known about Mr. Monteros practice for years and has
done nothing meaningful to stop it until now.
2 ) The prosecutors knew or should have known that the team had acquired
privileged material when SA Lindsay received the first free disc from Mr.
Montero 16 months ago..
3) Once the issue became known, the USAO eschewed the use of any
screening safeguards and has allowed the prosecution team itself to
investigate the issues, interview witnesses and, at least until now, conduct the
litigation on the governments behalf.
4) The defense was not notified that the prosecution team had received
privileged materials for 16 months and only admitted doing so when caught
red-handed.

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5) The defense has been prejudiced both by the sheer volume of material and
by the intrusion over a long time period, giving the prosecution team many
months to use the knowledge gained in ways that could probably never be
discovered.
6) The defense cannot seriously be faulted. The USAO set up this procedure,
required all defense counsel to use it, but never set up safeguards or notified
anyone when it learned of Mr. Monteros conduct years ago.
7) Any prejudice to the government from disqualification is of its own
making.
It is beyond dispute that SA Lindsey has seen and had the opportunity to review
privileged material for months. If the selection process is privileged, as the defense
maintains, there is no sanction short of disqualification that can undue the damage that has
been done. There is no way the memories of the subtle hints about what the defense learned
over such a long period of time could be excised from the memories of the prosecution
team (despite SA Lindseys self-serving assertions otherwise). See Richards, 168 F. Supp.
2d at 1209 (even if the Plaintiffs counsel returned the privileged materials, it would not
remove the taint on the proceedings because disclosure of privileged information cannot
be undone.). As the court in Arnold v. Cargill concluded under analogous circumstances
(albeit in a civil setting):

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At a minimum, S&Ls behavior recklessly disregarded the risks associated


with playing fast and loose with the rules protecting against disclosure of
privileged and confidential material. At worst, S&L is guilty of a serious
deception with respect to its role in the disclosure and retention of Cargills
privileged and confidential information. Either way, these proceedings have
been tainted by the mishandling of Cargills privileged and confidential
material....
Arnold v. Cargill Inc., No. 01-2086 (DWF/AJB), 2004 U.S. Dist. LEXIS 19381, at **3536 (D. Minn. Sept. 24, 2004).
For all of the foregoing reasons, the Court should order the disqualification of the
entire prosecution team.
Respectfully submitted,
BLACK, SREBNICK, KORNSPAN & STUMPF, P.A.
201 South Biscayne Boulevard, Suite 1300
Miami, Florida 33131
Ph.: (305) 371-6421 Fax: (305) 358-2006
E-mail: HSrebnick@RoyBlack.com
By:

/s/ Howard Srebnick


HOWARD SREBNICK
Florida Bar No. 919063

By:

/s/ Rossana Arteaga-Gomez


ROSSANA ARTEAGA-GOMEZ
Florida Bar No. 014932
Counsel for Salo Schapiro

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Case 1:14-cr-20715-MGC Document 188 Entered on FLSD Docket 06/07/2016 Page 30 of 30

CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was electronically filed by
CM/ECF on June 7, 2016.
/s/ Howard Srebnick

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