Govn Sent

Case 3:04-cr-00373-AET Document 48
Filed 11/12/04 Page 1 of 75
Document Filed Electronically UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY UNITED STATES OF AMERICA v. : STOP HUNTINGDON ANIMAL CRUELTY USA, INC., KEVIN KJONAAS, a/k/a Kevin Jonas, a/k/a Steve Shore, a/k/a Jim Fareer, LAUREN GAZZOLA, a/k/a Angela Jackson, a/k/a Danielle Matthews, JACOB CONROY, JOSHUA HARPER, ANDREW STEPANIAN, DARIUS FULLMER, and JOHN MCGEE : : : : : : : : Criminal No. 04-373 (MLC)
MEMORANDUM OF THE UNITED STATES IN OPPOSITION TO PRELIMINARY MOTIONS OF DEFENDANTS
CHRISTOPHER J. CHRISTIE United States Attorney 970 Broad Street Newark, New Jersey 07102 (973) 645-2700
On the Memorandum: Charles B. McKenna Ricardo Solano Jr. Assistant U.S. Attorneys
TABLE OF CONTENTS Preliminary Statement . . . . . . . . . . . . . . . . . . Statement of Facts Argument I. . . . . . . . . . . . . . . . . . . . 1 2 16
. . . . . . . . . . . . . . . . . . . . . . . HAVING ALREADY PROVIDED A COMPREHENSIVE AND DETAILED SUMMARY OF THE MOTIONS CHALLENGING THE SUPERSEDING INDICTMENT THAT HE INTENDS TO FILE, THIS COURT SHOULD DENY DEFENDANT KJONAASS REQUEST TO DELAY THE FILING OF THOSE MOTIONS . . . . . . . . . . . . . . . . THE UNITED STATES HAS COMPLIED WITH ALL OF ITS OBLIGATIONS UNDER RULE 16 AND THE STANDING ORDER OF THIS COURT . . . . . . . . .
16
II.
24
III. THE SUPERSEDING INDICTMENT SHOULD NOT BE DISMISSED AGAINST DEFENDANTS FULLMER AND HARPER . . . . . . . . . . . . . . . . . . . . IV. V. DEFENDANT FULLMERS REQUEST FOR SEVERANCE LACKS FACTUAL AND LEGAL BASIS . . . . . . . . . THE DEFENDANTS' REQUEST FOR A BILL OF PARTICULARS LACKS A FACTUAL AND LEGAL BASIS . . . . . . . . . . . . . . . . . . . . . THIS COURT SHOULD REJECT DEFENDANTS REQUEST FOR DISCLOSURE OF GRAND JURY MATERIALS BASED UPON MERE SPECULATION AND BARE ASSERTIONS . . .
27 34
37
VI.
47
VII. THE GOVERNMENT WILL PROVIDE THE DEFENDANTS WITH THE WIRETAP INFORMATION THEY HAVE REQUESTED . . . . . . . . . . . . . . . . . . . VIII. THIS COURT SHOULD DENY DEFENDANT HARPERSS MOTION TO SUPPRESS BECAUSE THE WARRANT TO SEARCH HARPERS RESIDENCE WAS BASED UPON PROBABLE CAUSE AND IT DESCRIBED THE ITEMS TO BE SEIZED WITH PARTICULARITY . . . . . . .
55
58
IX.
THE GOVERNMENT HAS NO OBJECTION TO THE DEFENDANTS' REQUESTS TO JOIN IN THE -i-
APPLICABLE MOTIONS FILED BY THEIR RESPECTIVE CO-DEFENDANTS . . . . . . . . . . . . . . . . . X. THE DEFENDANTS SHOULD NOT BE PERMITTED TO FILE ADDITIONAL BRIEFS WITHOUT FIRST OBTAINING LEAVE OF COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
70
71 72
Conclusion
-ii-
PRELIMINARY STATEMENT The United States respectfully submits this memorandum of law in response to preliminary motions submitted by the defendants in this case. The United States respectfully reserves
its right to supplement its responses by oral argument.
STATEMENT OF FACTS The instant action arises from a conspiracy on the part of the defendants, to force the closing of Huntingdon Life Sciences, (HLS) an animal testing laboratory that operates a facility in East Millstone, New Jersey. Huntingdon Life Sciences (HLS) is a Delaware corporation engaged in the business of contract animal testing, largely for pharmaceutical companies. It has testing laboratories in the Stop Huntingdon
United Kingdom and East Millstone, New Jersey.
Animal Cruelty, USA, Inc., (SHAC) is a Delaware corporation whose avowed purpose is shut down the HLS because it is involved in the scientific testing of laboratory animals. As alleged in the Superseding Indictment, SHAC was formed with the specific purpose of interrupting the business of HLS and to ultimately force it to cease operations altogether thereby causing a disruption of its business1. SHAC was operated from a Defendant
residence at 101 Home Street in Somerset, New Jersey.
Kjonaas, the then President of SHAC, lived at 101 Home street with defendants Gazzola, Conroy and others. As is set forth in
In his memorandum of law, defendant Kjonaas quotes liberally from SHACs own propaganda material in both touting SHAC as a grass roots activist organization and besmirching HLS. The Government will move in limine to suppress defendants attempts to paint HLS as a company that mistreats animals or violates the law. Simply put, information of that sort, even were it true and the Government does not concede that it is is irrelevant as to whether or not the defendants violated the law. Vigilantism the best that coud be said of defendants criminal activity is not a defense to the charges in the Superseding Indictment. -2-
the Superseding Indictment, SHAC has, by its own account, used a multi-pronged attack against HLS targeting its employees and shareholders as well as companies (and their employees) which receive services from, or provide services to, HLS. SHAC has
distributed a newsletter and operated a series of websites that disseminated its animal rights ideology and furthered its mission by, among other things, posting information relating to individuals and organizations that SHAC targeted for action2. Among the websites that SHAC has operated was www.shacamerica.net. Information that has appeared on the SHAC
website has included names and addresses as well as other personal information about individuals who were employed by HLS and other targeted companies. The SHAC website and its other
means of communication were designed to target individuals and companies for the purpose of direct action in order to force them from doing business with HLS. Indeed, the purpose of the
SHAC website was to provide information to SHAC sympathizers and to incite them to cause physical harm to property and emotional harm to individuals all in furtherance of driving HLS out of business thereby disrupting its business by forcing it to cease its operations. The Superseding Indictment alleges specific postings on the
2
Defendant Kjonaas states at page 5 of his memorandum of law (hereinafter referred to as Kjonaas Mem.) that the Indictment alleges that SHAC USA is a newsletter and website. The impression left is that all SHAC USA does is operate these two means of communication. However, SHAC engages in conduct beyond the mere supplying of information. -3-
SHAC website and when those postings were made.
The Superseding
Indictment also alleges the date, time and place of specific attacks that occurred after the SHAC website postings. Further,
the Superseding Indictment alleges the specific dates of postings on the SHAC website that reported the accounts of attacks that occurred and alleged the purpose of the postings to bring about other attacks at the same locations or other locations provided by the SHAC website. In short, the Superseding Indictment sets
forth a pattern of activity on the part of the defendants that is specific as to time, place and manner. It fully appraises the
defendants of what they are charged with and permits them information necessary to mount a defense. Based upon this and other information, a grand jury sitting in Newark, New Jersey returned a five Count Indictment against SHAC and seven individuals3 charging in Count One a conspiracy to violate Tile 18, United States Code, Section 43, the Animal Enterprise Terrorism statute, in that the individual defendants conspired with one another and with others to use a facility in interstate and foreign commerce for the purpose of causing the physical disruption to the functioning of HLS and to intentionally damage and cause tho loss of property used by HLS in an amount exceeding $10,000. Specifically, the defendants
targeted individuals and companies for the purpose of causing the
The Indictment was returned on or about May 20, 2004. The individual defendants were Kevin Kjonaas, the then-president of SHAC; Lauren Gazzola; Jacob Conroy; Joshua Harper; Andrew Stepanian; Darius Fullmer; and John McGhee. -4-
disruption of HLS business.4 Count Two charges SHAC and three of the individual defendants with conspiring to violate the interstate stalking statute, 18 U.S.C. 2261A(2), and Counts Three through Five charged SHAC and the same three defendants5 with substantive counts of stalking. On September 16, 2004, the grand jury
returned a Superseding Indictment which added a sixth count charging SHAC and four individual defendants with conspiring to use a telecommunications device to abuse threaten and harass persons contrary to 47, U.S.C. 223(a)(1)(C), in violation of 18 U.S.C. 371. The essence of the conspiracy to violate the Animal Enterprise Terrorism Statute is that the defendants, through the use of the SHAC corporate entity, embarked on a campaign to enlist and incite animal rights activists to engage in activity meant to harm the business of HLS in any manner available -including violence. SHAC utilized e-mail and web-based
communications to disseminate information and inflame its constituency and call them to violent action. The defendants
also coordinated the activities of individuals in furtherance of the campaign to shut down HLS and thereby disrupt its business
Defendants argue that only direct harm to HLS can violate 18 U.S.C. 43. However, harm to companies doing business with HLS for the express purpose of disrupting the business of HLS in the course of the conspiracy is actionable under the statute. The individual defendants were Kevin Kjonaas; Lauren Gazzola; Jacob Conroy. -55
operations. SHAC espoused and encouraged others to engage in what it termed direct action. The SHAC website described direct action
as activities which operate outside the confines of the legal system. For instance, the SHAC website posted what it termed
the top 20 terror tactics which described various types of direct actions that could be taken against individuals6. tactics included: demonstrations at ones home using a loudspeaker; abusive graffiti, posters and stickers on ones car and house; invading offices and, damaging property and stealing documents; chaining gates shut, and blocking gates; physical assault including spraying cleaning fluid into ones eyes; smashing the windows of ones house while the individuals family was at home; flooding ones home while the individual was away; vandalizing ones car; firebombing ones car; These
Defendant Kjonaas argues that this posting and certain others, alleged in the Superseding Indictment to have occurred outside the time frame of the conspiracy, fail in and of themselves to state a cause of action. See Kjonnas mem at p. 13. As with other postings which occurred before the time frame for the conspiracy in the Superseding Indictment, they remained on the website after the start of the conspiracy and were therefore adopted by the conspirators. In addition, they had an impact on the victims who became aware of the activities of SHAC through the postings that remained on the website when they themselves became SHAC-targets. -6-
Filed 11/12/04 Page 10 of 75
bomb hoaxes; threatening telephone calls and letters including threats to kill or injure ones partner or children . . . . . . ; e-mail bombs in an attempt to crash computers; sending continuous black faxes causing fax machines to burn out; telephone blockades by repeated dialing to prevent the use of the telephone; and arranging for an undertaker to call to collect ones body. SHAC also coordinated telephone and e-mail blitzes as well as computer blockades of HLS and companies that it targeted for direct action. In order to facilitate these activities, the SHAC
website would list telephone numbers, facsimile numbers and computer downloads which assisted individuals in sending massive amounts of e-mails to targeted addresses. SHAC and the
defendants, through the use of the SHAC website, coordinated the days that certain companies would be acted against in order to maximize the damage caused by various methods of attack. Perhaps the most insidious aspect of the SHAC campaign to shut down HLS was the posting of personal information of people who either worked for HLS or for companies that did business with HLS. This information included home addresses, home telephone
numbers, the names of spouses and children of the employees and other information such as the types of vehicles they owned, where they went to church and where their children attended school. Postings on the website encouraged and incited direct acting against these people and very often acts of vandalism were
-7-
Filed 11/12/04 Page 11 of 75
perpetrated on the homes and personal property of the individuals whose personal information appeared on the website. Once direct action was carried out against these individuals, the SHAC website reported on the vandalism in a manner designed to foster additional acts of terror against those employees as well as others whose information had been posted on the SHAC website. For instance, the SHAC website posted
information on or about April 15, 2001 which stated in part that well be at their offices, at their doorsteps and on their computers. There will be no rest for the wicked.
As set forth in the Superseding Indictment, on or about March 31, 2001, the SHAC website listed the name and address of an HLS employee and within days, rocks were thrown through the individuals home windows. One of his cars was overturned in his When the individual
driveway and a second car was vandalized.
ultimately left the employ of the HLS, the SHAC website touted that he had resigned after months of pressure, including protests property destruction, [and] home blockades at home and work. This message was designed not only to spur others on to
similar actions but to warn other HLS employees that they too were in harms way and could be targeted at any moment. as is set forth in the Superseding Indictment, other HLS employees have also had information posted on the website about them which led to acts of vandalism and destruction at their homes. The end game of this conspiracy of terror was the Indeed,
destruction of HLS. -8-
Filed 11/12/04 Page 12 of 75
This pattern of personal information being posted on the SHAC website about employees of companies along with language inciting violence against them; followed by attacks upon their homes and personal property due to the incitement; followed by SHAC website postings touting the attacks that occurred in a manner designed to spur individuals on to additional direct action; continued time and again over the years since 2001. Not
only were homes vandalized but clubs that employees belonged to were also vandalized or harassed. For instance, as is set forth
in the Superseding Indictment, after posting the name of the golf club where an employee of a company that provided insurance services for HLS was to be,7 the golf green of the golf course were vandalized. That employees home was also vandalized.
These acts of violence, as set forth in the Superseding Indictment, were then reported on the SHAC website. Indeed, in
one posting on the SHAC website, it boasted that [d]amages from this action may in fact exceed hundreds of thousands of dollars between the damage to the well maintained golf course, the disruption to the PGA event and to the club itself. In yet
another instance set forth in the Superseding Indictment an employee of a company that SHAC targeted because SHAC believed it did business with HLS had information about an orienteering club that she belonged posted on the SHAC website stating in part:
SHAC and the defendants believed that if they could force the insurance broker from providing insurance services to HLS, it would be forced to shut down its operations due to a lack of liability and other insurance. -9-
Filed 11/12/04 Page 13 of 75
K**** the killer S****** of C***** Corp.s toxicology department has been infiltrated. She is a long time treasurer of the Cascade Orienteering Club .. The Clubs Officers; board members; and co-ordinators , and members have all been written polite e-mails explaining the nature of K**** S*******dirty business. They were asked for personal or embarrassing information on K****. When no one responded in days they were bombarded with e-mails depicting K**** as the cold blooded killer she is. The Clubs e-mail list had also been infiltrated, and now nothing is secret. After a demonstration of this same employees home, the SHAC website reported that at about 12 am we bid him a fond goodnight and left questioning. So K****, did you tuck your family in to
bed and explain why we were out there, or were you too cowardly to be home? Either way, we win. Because WE ALWAYS WIN. The
purpose of targeting these individuals for violence was because they worked for companies that did business with HLS. The
defendants attempted through this activity and in many cases succeeded in driving companies from doing business with HLS for the purpose of making it impossible for HLS to do business, thereby disrupting its operation. In addition to the violence perpetrated on certain individuals and companies due to the concerted activity of the defendants, certain victims set forth in the Superseding Indictment were placed in fear of death and serious bodily injury, and feared for the lives of their spouses and children, based upon the publication of their names, home addresses, telephone numbers and other personal information over the interstate lines of the internet in the context of the SHAC website as well as the various visits to their homes by angry - 10 -
Filed 11/12/04 Page 14 of 75
groups dressed in menacing garb.
These individuals, and the
activities which occurred to cause the emotional distress they live with, are set forth in the Superseding Indictment and borne out in the discovery provided to the defendants. Indeed, various
videotapes chronicling the stalking activity has been turned over during discovery. Finally, as is set forth in the Superseding Indictment, certain of the defendants conspired to use a telecommunications device to abuse, threaten and harass persons without disclosing their identity in violation of 47 U.S.C. 223(a)(1)(c). The
defendants caused the flooding of business with telephone calls, caused individuals to be harassed at their homes with telephone calls and caused black faxes to be sent to companies all with the purpose of abusing and harassing the recipients of the calls and faxes8. Any doubt about the intent of the defendants is
dispelled by a review of the SHAC web postings as well as the statements of the defendants themselves. Indeed, defendant
Harper, in a tape that was provided to the defendants in discovery stated: as I explained earlier, how to use black faxes, if youve got access to a fax machine, boy, I cant tell ya how great it is. Like uh, ya hit star six seven, ya dial the fax number and you feed it about three sheets of those and ya tape em end to end to end and I - it knocks out the entire line of communication. And Ive
8
In order to ensure the anonymity of the callers and senders of faxes, as is set forth in the Superseding Indictment, the SHAC website instructed its followers to utilize the *67 function to successfully block caller identifications systems from divining the callers telephone number. - 11 -
Filed 11/12/04 Page 15 of 75
worked for-for like, the dumb corporations like Horus before well not exactly Corus, but I know that doing like secretarial work at places like that, it you had to deal with that sort of thing coming through all the time, it would definitely, uh, raise a siege mentality level, in uh, the workplace. Unfortunately for the victims of SHACs campaign, defendant Harper was correct. Following the arraignment of the defendants on June 15, 2004, the Court entered its Standing Order for Discovery and Inspection. The Standing Order was augmented with a Complex Case
Order entered by this Court on August 3, 2004 which set forth an amended schedule for pretrial motions and trial. Consistent with
Courts orders and Rule 16 of the Federal Rules of Criminal Procedure, the United States made voluminous discovery available to the defendants including: 1. 2. 3. 4. 5. Statements of the defendants; The defendants' criminal records to the extent applicable; FBI Reports (302's); Wiretap and electronic surveillance applications, affidavits and orders; A large amount of electronic media, including, over 50 floppy disks, zip drives, nine computer hard drives, and various CD ROMS; Approximately 72 videocassette tapes; More than 500 cassette tapes; Transcripts for most of the cassette tapes.
6. 7. 8.
In addition, the Government has made available for defendants and their attorneys to view, the large amount of items seized from
- 12 -
Filed 11/12/04 Page 16 of 75
the search of 101 Home Street9 as well as the items seized form Joshua Harper during a Court-authorized search. It should be
noted that while the discovery is large in volume, it deals mostly (save for the wiretap material) with information peculiarly within the possession and knowledge of the defendants. Indeed, all of the electronic media belonged to the defendants. They understand how it was created, how it was organized, how it was encrypted and what it means. Accordingly, the defendants are
in a far better position than to Government to quickly assess the information and its meaning. The defendants would have this
Court believe that the information is alien to them when in fact, save for the Title III information, it all belongs to or was created by them. Hence their claims that they are overwhelmed by
the material ring somewhat hollow. The United States also informed defendants on June 25, 2004 that it was not then aware of any exculpatory evidence within the purview of Brady v. Maryland, except to the extent that the statements included in the aforementioned discovery list represented such evidence. Notwithstanding all of the discovery already provided, the defendants, now claim that the lack sufficient information to understand and prepare a defense. following motions: 1. Seeking an Order dismissing The Indictment against Defendants have made the
Save for a few hours, counsel for the defendants have largely ignored this material. - 13 -
Filed 11/12/04 Page 17 of 75
defendant Fullmer for failure to set forth a cause of action against him; 2. Seeking an Order dismissing the Indictment against defendant Harper because the Superseding Indictment is vague and lacks probable cause as to him; 3. 4. Seeking a Bill of Particulars; Seeking an Order compelling the Government to turn over grand jury transcripts and texts of any charge instructions provided by the United States Attorneys Office foe use by the grand jury: 5. Seeking on order compelling the Government to present in camera to the Court an Affidavit setting forth information about the grand jury that heard the case; 6. Compelling discovery of information cited as the basis for the wiretap intercept surveillance and search orders issued by federal courts in this case; 7. Seeking an Order suppressing evidence obtained during a Court-authorized search of the residence of defendant Harper; 8. Seeking an Order severing defendant Fullmers case from the other defendants; 9. 10. Seeking an adjournment of later motions; and Permitting defendants to join in the applicable motions filed by their co-defendants. For the reasons set forth below, the United States asserts that each of the motions, with the exception of number 8, should - 14 -
Filed 11/12/04 Page 18 of 75
be denied.
- 15 -
Filed 11/12/04 Page 19 of 75
ARGUMENT I. HAVING ALREADY PROVIDED A COMPREHENSIVE AND DETAILED SUMMARY OF THE MOTIONS CHALLENGING THE SUPERSEDING INDICTMENT THAT HE INTENDS TO FILE, THIS COURT SHOULD DENY DEFENDANT KJONAASS REQUEST TO DELAY THE FILING OF THOSE MOTIONS. In Point I of his memorandum, defendant Kjonaas lays out a comprehensive, 25-page preview of the motions he intends to file challenging the Superseding Indictment in this case. Notwithstanding this detailed and lengthy exercise, Kjonaas concludes that he cannot file his motions to dismiss the Superseding Indictment because he needs additional discovery, and asks this Court to adjourn the date for filing those motions. Kjonaas Mem. at 61. Kjonaass assertion that an adjournment is
necessary is contradicted by his own discourse in Point I. Indeed, the motions that defendant Kjonaas identifies in Point I of his Memorandum of Law target the validity of the Superseding Indictment. Whether the Superseding I ndictment is
valid on its face, however, is not dependent upon the discovery (or alleged lack of discovery) provided to a defendant. This is
so because a defendant cannot use the discovery provided to challenge the sufficiency of an indictment. See United States v.
Gallagher, 602 F.2d 1139, 1142 (3d Cir. 1979) (recognizing that "the sufficiency of an indictment may not be properly challenged by a pretrial motion on the ground that it is not supported by adequate evidence") (citations and quotation marks omitted); United States v. DAlessio, 822 F. Supp. 1134, 1140 (D.N.J. 1993) - 16 -
Filed 11/12/04 Page 20 of 75
(concluding that defendants arguments to dismiss certain parts of the indictment are without merit because they require the court to make factual findings regarding the sufficiency of the Governments evidence). Accordingly, this Court should require
defendant Kjonaas to proceed with the motions he has already set forth in Point I without further delay. Until such time as defendant Kjonaas actually files his motions to dismiss the Superseding Indictment, this Court should disregard Point I of defendant Kjonaass memorandum (i.e., pages 9 through 34). A litigant is not entitled to obtain, and this E.g.,
Court lacks the authority to issue, an advisory opinion.
In re Coffin, 90 F.3d 851, 853 (3d Cir. 1996) ("The oldest and most consistent thread in the federal law of justiciability is that federal courts will not give advisory opinions.") (quoting Wright, Miller, Cooper, Federal Practice and Procedure, 3529.1, p. 293 (2d ed.1984)). Hence, because Kjonaas is not seeking any
actual relief in Point I, it is inappropriate to brief and argue the bases for his prospective motions to this Court for no apparent purpose other than to orient (or disorient) the Court as to the merits of his future motions and the applicable case law. This gambit of arguing matters to the Court for no apparent reason but to gain an advantage at some later point, seems superfluous and improper. Presenting a preview of the motions defendant Kjonaas
- 17 -
Filed 11/12/04 Page 21 of 75
intends to raise, without placing the issue squarely before this Court, wastes this Courts resources requiring it to consider non-issues. It also wastes the Governments resources because
it requires the Government to either answer to motions not yet filed or allow defendants version of the facts and skewed presentation of the case law to go unanswered. For example, defendant Kjonaas alleges that the Superseding Indictment fails to state a valid cause of action under the Animal Enterprise Terrorism statute, 18 U.S.C. 43. Mem. at 10-19. See Kjonaas
For the reasons discussed in the Governments
Statement of Facts, the Superseding Indictment is sufficient on its face. The Government, however, reserves its right to respond
to defendant Kjonaass arguments until such time as he actually presents his motion. Defendant Kjonaas also attempts to persuade this Court that the activities alleged in the Superseding Indictment are protected speech and clearly not a crime. 14, 22, 31-34. Kjonaas Mem. at
Notwithstanding defendant Kjonaass conclusory
assertions and citations to numerous First Amendment opinions, this Court will ultimately have to decide this issue after complete briefing from all parties. At such time, the Government
intends, among other things, to point out that defendant Kjonaass contention that speech is protected under the First Amendment unless it rises to the level of inciting violence
- 18 -
Filed 11/12/04 Page 22 of 75
ignores Supreme Court precedence which holds that the First Amendments protections do not extend to acts of intimidation, a type of true threat i.e., where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. S. Ct. 1536, 1548 (2003). Virginia v. Black, 123
Simply put, speech that is intended to
intimidate others is not protected even if it does not rise to the level of inciting unlawful conduct. Furthermore, the
Government will argue that, when placed in its proper context, the defendants conduct in this case fell well outside First Amendment protection. While it is clear that the First Amendment
protects ones right to engage in political activity, simply citing the First Amendment does not give anyone carte blanche to engage in unlawful acts of intimidation, harassment, and stalking.10 Defendant Kjonaass also incorrectly suggests to this Court that the Interstate Stalking statute is not applicable in this
10
The Government will also argue that the Supreme Courts definition of a true threat i.e., speech made with the intent of placing the victim in fear of bodily injury or harm encompasses the elements of interstate stalking i.e., using the mail or any facility of interstate commerce with the intent to place a person in another State in reasonable fear of the death of, or serious bodily injury to, that person, a member of the immediate family . . . or a spouse or intimate partner fo that person. 18 U.S.C. 2261A(2). As a result, if the jury finds beyond a reasonable doubt that the defendants charged in Counts Two through Five engaged in interstate stalking in violation of 2261A, their conduct by definition would not be protected under the First Amendment. - 19 -
Filed 11/12/04 Page 23 of 75
case.
Kjonaas Mem. at 19-20.
Contrary to Kjonaass suggestion,
however, the Interstate Stalking statute is not limited to flagrant incidents of domestic stalking. also Comment, Cyberstalking: Id. at 19; see
Can Communication Via The Internet
Constitute A Credible Threat, And Should An Internet Service Provider Be Liable If It Does?, 17 Santa Clara Computer & High Tech. L. J. 115 (Dec. 2000) (available on Westlaw at 17 SCCHITLJ 15) (discussing the concept of cyberstalking i.e., use of the Internet, e-mail or other electronic communications devices to stalk another person through threatening behavior). Section
2261A makes it unlawful for any person to use a facility of interstate commerce for the purpose of placing a person in another State, a member of that persons family, or that persons spouse or intimate partner in reasonable fear of death or serious bodily injury. 18 U.S.C. 2261A. Hence, if any individual as
the Government has alleged in the Superseding Indictment and intends to prove at trial the defendants have done uses (or conspires to use) the internet and e-mails to place others in reasonable fear of serious bodily, then it is a violation of the interstate stalking statute. Compare United States v. Bowker,
372 F.3d 365, 389 (6th Cir. 2004) (finding that evidence of defendants threats, including I know all of your neighbors . . . . I know the names of all your relatives and where they live, were sufficient to satisfy cyberstalking count under 18 U.S.C.
- 20 -
Filed 11/12/04 Page 24 of 75
2261A) with Superseding Indictment 48 (SHAC website posting stating: We have been monitoring the protection and home for quite some time now, FT we were well aware of the security patrols at your home . . . . Did you think that armed guards or the installation of motion sensors, cameras, lights, and steel grating around your basement windows would somehow make the animal liberation movement go away?); and 64 (SHAC website posting warning C. Corp. employees, We know where you are, we know what you look like we know where you socialize and best of all we know where you live). Similarly, defendant Kjonaass argument that the Communications Act of 1934, 47 U.S.C. 223(a)(1)(C) (the offense charged in count six of the superseding indictment), cannot be constitutionally applied in this case fails because it ignores the particular facts of this case. Defendant Kjonaas relies upon In Pope,
United States v. Popa, 187 F.3d 672 (D.C. Cir. 2003).
the Court of Appeals found that the statute was unconstitutional as applied to that particular defendant because he engaged in protected speech i.e., he called the U.S. Attorneys Office to complain about the actions of a government official. at 677-78. 187 F.3d
In reaching this conclusion, the Court agreed with
the Third Circuit that the interest protected by 223(a)(1)(C) is the protection of innocent individuals from fear, abuse, or annoyance at the hands of persons who employ the telephone, not
- 21 -
Filed 11/12/04 Page 25 of 75
to communicate, but for other unjustifiable motives.
Id. at 677
(quoting United States v. Lampley, 573 F.2d 783, 787 (3d Cir. 1978)). The superseding indictment in this case charges that Kjonaas and others conspired to send black faxes. Indictment 2. Superseding
Unlike the political discourse at issue in Pope,
an anonymously sent black fax does not express any message.11 Indeed, as set forth in 6, black faxes according to the top 20 terror tactics posted by the SHAC website are not intended to send a message, but rather, to caus[e] fax machines to burn out. Hence, as the evidence at trial will establish,
the clear purpose of conspiring with others to send the black faxes was to annoy and harass the recipient the very interest the Third Circuit has recognized 223 intends to protect. For
that reason, the violation of 47 U.S.C. 223 charged in the superseding indictment is not barred by the First Amendment. Last, defendant Kjonaass lengthy discussion of his intent to file a claim of selective prosecution should also be disregarded by this Court. See Kjonaas Mem. at 25-30. Missing
from defendant Kjonaass argument, is any discussion of the relevant legal standard. In particular, defendant Kjonaas has
not proven that (1) similarly situated individuals were not

11
Contrary to Kjonaass claim that the black faxes were not anonymous, when a victim receives a black fax from a blocked number, it is unquestionably an anonymous communication. - 22 -
Filed 11/12/04 Page 26 of 75
prosecuted; and (2) the decision to prosecute him was intentionally based upon an unconstitutional motive. See United
States v. Armstrong, 517 U.S. 456, 464, 465 (1996); United States v. Bell, 113 F.3d 1345, 1351 n.6 (3d Cir. 1997) (stating that a defendant must make out a difficult prima facie showing that she was selected for prosecution for an invidious reason). Kjonaas,
therefore, has failed to even articulate a valid claim of selective prosecution.12 In sum, the Government will respond to defendant Kjonaass motion with these arguments and others when he actually files his motions. Until such time, this Court should disregard the issues
itemized by Kjonaas in Point I.
In the context of this discussion, defendant Kjonaas summarily asserts that only acts involving HLS directly could be argued by the Government to fall within the scope of the Animal Enterprise Terrorism statute, 18 U.S.C. 43. Kjonaas Mem. at 25. This assertion misses the mark. The Governments allegation is that the defendants conspired to shut down HLS through unlawful means including intimidating, harassing, and threatening companies and its employees that are clients of HLS or do business with HLS. It is in that context that the defendants actions targeted at these companies and their employees are probative of the defendants criminal conduct under 18 U.S.C. 43. - 23 -
12
Filed 11/12/04 Page 27 of 75
II.
THE UNITED STATES HAS COMPLIED WITH ALL OF ITS OBLIGATIONS UNDER RULE 16 AND THE STANDING ORDER OF THIS COURT. Through their motions, the defendants seek additional
discovery beyond that required by Fed. R. Crim. P. 16, Brady, the Jencks Act, and the Court's Discovery Order. To date, the
government has complied with all of the legal obligations imposed upon it and has provided the defendants with extensive discovery materials. Therefore, any additional requests are without basis.
Rule 16 sets forth the various categories of items subject to disclosure. The rule provides for discovery of four types of
information: (1) the defendants' written and recorded statements and the substance of statements they made to those they knew were government agents at the time of the utterance; (2) the defendants' prior records; (3) documents and objects; and (4) scientific reports. Beyond the dictates of Rule 16, the Standing Order of the Court further obligates the United States to disclose with its pretrial discovery any exculpatory evidence within the purview of Brady v. Maryland. Stated succinctly, Brady requires the
disclosure of all evidence favorable to the defendant that is material to guilt or to punishment. 83, 87 (1963). Brady v. Maryland, 373 U.S.
The Government acknowledges the Brady
requirement, but does so mindful of the contours of its obligation. As former Chief Judge Seitz has made clear, "there
is no constitutional obligation on the prosecution to disclose all materials that would be helpful to the defendant in preparing
- 24 -
Filed 11/12/04 Page 28 of 75
a defense.
If there were such an obligation, the prosecution
would be obliged to 'open its files' because it would obviously be helpful to know the government[s] entire case, including incriminat[ory] as well as exculpatory evidence." United States
v. Cuthbertson, 651 F.2d 189, 200 (3d Cir.) (Seitz, C.J., concurring), cert. denied, 454 U.S. 1056 (1981). The United States has already provided the defendants with more information than the Federal Rules or the Court's Order require, and with all information that may contain exculpatory materials. statements. Specifically, no defendant made any post-arrest However, the United States has attempted to provide
t0 defendants all statements in its possession that any defendant did make. This is a rather daunting task given the amount of
statements that were made during the course of this investigation. Because of that, the Government continues to
provide to defendants the substance of any statements they have made. In addition, the Government has provided the defendants
with voluminous reports and other documents concerning the investigation of this action, as well as voluminous documents and other items including computer hard drives, CD ROMS, zip drives, items seized from searches, wiretap applications and orders, hundreds of cassette tapes embodying conversations of the defendants and other statements made by them and numerous videotapes. Indeed, in defendant Kjonaas memorandum he states
that [t]he discovery has been voluminous in this case. Moreover, in addition to the discovery provided to the - 25 -
Filed 11/12/04 Page 29 of 75
defendants, there is a large amount of additional discovery that they have been invited to view at their convenience. Based upon this information, the defendants can easily discern the thrust of the prosecution and adequately prepare a defense. Thus, both the letter and the spirit of the discovery The
rule and the Order of the Court have been satisfied.
additional material that the defendants have requested does not fall within any category of discoverable information, and therefore the defendants' request for additional disclosure lacks legal basis and should be denied.
- 26 -
Filed 11/12/04 Page 30 of 75
III. THE SUPERSEDING INDICTMENT SHOULD NOT BE DISMISSED AGAINST DEFENDANTS FULLMER AND HARPER. Defendant Darius Fullmer and Joshua Harper argue, for similar reasons, that the Superseding Indictment should be dismissed as against them. Defendant Fullmer argues that the
Government has not set forth a cause of action as to him (Fullmer Mem. at 713), while defendant Harper argues that no probable cause is revealed to support the Superseding Indictment. (Harper Mem. at 7). In essence, both defendants argue that the
case should be dismissed as against them because the Superseding Indictment itself is lacking14. For purposes of ruling on a motion to dismiss an indictment, all well pleaded allegations in the indictment are taken as true. United States v. Eichman, 756 F. Supp. 143, 146 (S.D.N.Y. 1971), aff'd, 957 F.2d 45 (2d Cir. 1992). Moreover, as the Eichman
The Fullmer memorandum of law is not paginated. Citations to it will be made by using the page beginning with STATEMENT OF FACTS AND PROCEDURAL HISTORY as page 1 and counting from there. Defendant Harper alludes to the First Amendment in his argument to dismiss. It is the Governments understanding at this time that the First Amendment attack on the Superseding Indictment an attack which the Government understands will be made or joined in by all defendants will be made in future motions to this Court. Rather than argue that point at this time on a less-than-complete record, the Government will address the claimed facial invalidity of the Superseding Indictment as to defendant Harper and leave the First Amendment claims for the later motions. In this manner, the Court will have before it an in-depth analysis of the issue by all parties which will place it in the best position to make a decision. The Government does not and will not object to defendant Harper joining in that future motion whether by additional argument or by joining in the arguments made by his co-defendants. - 27 14
13
Filed 11/12/04 Page 31 of 75
Court stated, "[a] motion to dismiss is not a device for the summary trial of the evidence; it is addressed only to the facial validity of the Indictment." Indeed, if an Indictment is valid
on its face, it cannot be challenged on the ground that it cannot be supported by competent evidence. Costello v. United States,
359, 363 (1956); United States v. Eisenberg, 773 F. Supp. 662, 709 (D.N.J. 1991). In Costello, the Supreme Court held that
"[a]n indictment returned by a legally constituted grand jury ... if valid on its face, is enough to call for a trial of the charges on the merits," reasoning: If indictments were to be held open to challenge on the ground that there was inadequate and incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. So long as the indictment sets forth the elements of the offense in sufficient detail to provide the defendant with notice of the charges against him and does not present double jeopardy problems, it is impervious to attack on a motion to dismiss. Hamiling v. United States, 418 U.S. 87, 117 (1974), United States v. Donsky, 825 F.2d 746, 749 n.5 (3d Cir. 1987); v. Eichman, 756 F. Supp. at 146. United States
It is sufficient for an
Indictment to track the statutory language, "so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution." United States v. Shirk, 981 F,2d 1382, - 28 -
Filed 11/12/04 Page 32 of 75
1389 (3d Cir. 1992), quoting, United States v. Olatunji, 872 F.2d 1161, 1166 (3d Cir. 1989); United States v. Eufrasio, 935 F.2d 553, 575 (3d Cir. 1991), cert. denied, 112 S.Ct. 340 (1991). also, United States v. Scanzello, 832 F.2d 18, 22 (3d Cir. 1987)(conspiracy indictment sufficient if elements of offense are alleged). The elements of the charged offenses are: that each See
defendant conspired and agreed with others to use the facilities of interstate commerce for the purpose of causing a physical disruption to the functioning of Huntingdon Life Sciences, an animal enterprise as defined under the statute and intentionally agreed to cause a loss of property to HLS in an amount exceeding $10,000. The allegations in the Superseding Indictment allege
that the defendants conspired to shut down HLS which would have caused a cessation of its business and therefore a disruption of its work, causing a loss in excess of $10,000. The Superseding
Indictment, coupled with the voluminous discovery produced to date, clearly indicates how each defendant was involved in the conspiracy. The second conspiracy, involving defendant Harper, alleges that he and others, including defendants Kjonaas, Gazzola and Conroy, knowingly agreed to utilize a telecommunications device to abuse, threaten and harass persons at the called number who received the communication without disclosing the identity of the person utilizing the telecommunications device. In particular,
the Superseding Indictment alleges that the defendants charged in - 29 -
Filed 11/12/04 Page 33 of 75
Count Six urged and agreed to have people send what are known as black faxes to companies for the express purpose of annoying them by monopolizing the recipients fax machines which printed out totally black pages, thereby using excess amounts of ink, taking large amounts of time, and in instances, burning out he facsimile unit altogether15. The Superseding Indictment also
alleges that each of the defendants performed certain acts in furtherance of the scheme. Thus, the charges are specifically set forth in the Superseding Indictment and there is a more than ample factual orientation to permit the defendants to prepare their defenses. Moreover, there is sufficient particularity in the Superseding Indictment to permit the defendants to invoke double jeopardy in the event of a subsequent prosecution for the same offense. Defendant Fullmer cites two cases in support of his argument, both of which are inapposite to the instant motion and both of which favor the denial of his motion. In United States
v. Lyons, 53 F.3d 1198 (11th Cir. 1995), the Court affirmed the conviction of a defendant after trial. The case does not deal
with dismissal of a matter based upon an infirmity in the indictment. argument. Thus, citation to Lyons does not support defendants
In addition, the Superseding Indictment also chronicles the use of what SHAC referred to as e-mail and telephone blitzes which were designed to harass and annoy various individuals at HLS and companies that HLS did business with in furtherance of the defendants campaign to shut down HLS. - 30 -
15
Filed 11/12/04 Page 34 of 75
United States v. Locasio, 6 F.3d 924 (2d Cir. 1993) is similar to Lyons. after trial. In Locasio, the defendants were convicted
Defendant Locasio argued on appeal that he should
not have been convicted merely for his presence at certain meetings. Locasio, 6 F.3d at 944. The Government had proven at
trial that he presence at certain meetings, even thought he did not speak, was an important fact in the full panorama of events. Id. Ultimately, the Court, in rejecting the defendants arguments
and holding that the jury was entitled to consider whether it was likely that the defendants mere presence was in furtherance of the conspiracy, stated that the government did far more than establish mere presence. Id. at 945. So too here, the ultimate
resolution of this matter should await the presentation of evidence by the Government and the deliberation of the facts by a jury. Both defendants Fullmer and Harper misperceive the pleading and proof requirements of the overt acts in furtherance of the conspiracies in this case. Both seem to understand that the
Government must allege all of the overt acts in furtherance of the conspiracy in the Superseding Indictment. Indeed, both argue
that they are not named in many of the overt acts and that in some way supports their argument for dismissal. However, the
Government is not limited in its proof at trial to those overt acts alleged in the Indictment. F.2d 31, 38 (3d Cir. 1976). United States v. Adamo, 534
Moreover, the Government is under Id. All that
no obligation to prove every overt act alleged. - 31 -
Filed 11/12/04 Page 35 of 75
is required is that the Government prove that a single overt act in furtherance of the Superseding Indictment be proven to the jury beyond a reasonable doubt. in itself illegal. The overt act need not even be
United States v Palmeri, 630 F.2d 192, 200
(3d Cir. 1990), citing Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed.2d 23 (1942). Thus, this matter
must await trial where the Government will be put to its burden of proof. Accordingly, defendants motion to dismiss at this
time should be denied. Defendant Harper seeks dismissal of the Superseding Indictment because it is vague and lacks probable cause (Harper Mem. at 7) yet cases that he cites do not address either of those points. Rather, he argues that the First Amendment precludes the See Terminiello v. Chicago, 337
Government from prosecuting him.
U.S. 1, 69 S.Ct. 894, 93 L.Ed. 113 (1949); Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941); Craig V. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); and Herndon ve Lowrey, Sheriff, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066 (1937). As is set forth above, that argument and its resolution The argument made
should await further briefing by all parties.
here -- that the Superseding Indictment is vague and lacks probable cause is, for the reasons set forth above, lacking in
merit and should be dismissed.
- 32 -
Filed 11/12/04 Page 36 of 75
IV.
DEFENDANT FULLMERS REQUEST FOR SEVERANCE LACKS FACTUAL AND LEGAL BASIS. Defendant Fullmer asserts that he cannot receive a fair
trial unless he is severed for trial from his co-defendants. the reasons set forth below, this is not supported by law or fact. Rule 8(b) permits the joinder of defendants in the same
For
indictment if they are alleged to have participated in the same act or transaction or series of acts or transactions constituting an offense. If the pleadings allege participation in the same
act or series of acts, this is sufficient to justify joinder, even if the count of the indictment alleging this participation is ultimately dismissed. 511, 514 (1960). Schaeffer v. United States, 362 U.S.
The Court of Appeals for the Third Circuit has
found that since a conspiracy claim "provides a common link, and demonstrates the existence of a common scheme or plan" it satisfies the "series of acts" requirement. United State v.
Somers, 496 F.2d 723, 729 (3d Cir.), cert. denied, 419 U.S. 832 (1974). Relatedly, the Third Circuit has expressed a clear
preference in conspiracy cases "to have all of the parties tried together so that the full extent of the conspiracy may be developed." United States v. Provenzano, 688 F.2d 194, 199 (3d
Cir.), cert. denied, 459 U.S. 1071 (1982); accord United States v. Dickens, 695 F.2d 765, 773 (3d Cir. 1982), cert. denied, 460 U.S. 1092 (1983). In such cases, the important interest in
judicial economy usually weighs in favor of trying the defendants
- 33 -
Filed 11/12/04 Page 37 of 75
in a single trial.
Dickens, supra at 779.
Under Rule 14 of the Federal Rules of Criminal Procedure, however, the court has the discretion to grant a severance of the defendants if it appears that the defendant or government will be prejudiced by a joint trial. Neither mere allegations of
prejudice nor the assertion that a severance would improve a defendant's chance for acquittal justifies a severance. States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981). Similarly, a defendant is not entitled to severance merely on the basis of a disparity in the strength of the evidence against a co-defendant, since "if that were the case, a joint trial could rarely be held." United States v. Dansker, 537 F.2d 40, 62 (3d See also United United
Cir. 1976), cert. denied, 429 U.S. 1038 (1977).
States v. Adams, 759 F.2d 1099, 1113 (3d Cir.), cert. denied, 474 U.S. 906, 971 (1985); United States v. Simmons, 679 F.2d 1042 (3d Cir. 1982), cert. denied, 462 U.S. 1134 (1983). Instead, a defendant must show that the evidence is so complex or confusing that a jury could not compartmentalize the evidence and consider it for its proper purposes, Dansker, 537 F.2d at 62; United States v. DeLarosa, 450 F.2d 1057 (3d Cir. 1971), cert. denied, 405 U.S. 957 (1972), and that the failure to sever clearly and substantially prejudices him to the point of depriving him of a fair trial. Reicherter, 647 F.2d at 400.
In the case at bar, each defendant is on trial for conspiring with others, through illegal actions, to shut down HLS. Each of the defendants including Fullmer - has - 34 -
Filed 11/12/04 Page 38 of 75
participated in one or more acts in furtherance of the object of the conspiracy. This conspiracy, and the acts engaged in to
further its object, provide a satisfactory basis for a joint trial of these defendants. Moreover, the nature of the evidence against each defendant is not complex or confusing. Rather, the evidence against each
defendant can be compartmentalized by the jury and the Court can instruct the jury regarding the proper use of the evidence.16 For all these reasons, the defendant's request for severance is without basis and should be denied.
To this end, the United States respectfully suggests that the Court instruct the jury in accordance with the dictates of the case law cited above regarding the consideration it should give the evidence offered against each defendant. - 35 -
16
Filed 11/12/04 Page 39 of 75
V.
THE DEFENDANTS' REQUEST FOR A BILL OF PARTICULARS LACKS A FACTUAL AND LEGAL BASIS. The defendants assert that they need a Bill of Particulars
to prepare their defense.
Indeed, they claim that they need this
information in order to challenge the constitutionality of the statutes under which they are charged. in law and fact. This request lacks basis
Since the Superseding Indictment provides
adequate notice of the factual bases for the charges, and in light of the discovery that they have received to supplement the facts contained therein, the defendants request seeks information far beyond that permissible in a bill of particulars and beyond the scope of permissible discovery. request should be denied17. Under the law of this circuit, a "motion for a bill of particulars should be granted whenever an indictment's failure to provide factual or legal information significantly impairs the defendant's ability to prepare his defense or is likely to lead to prejudicial surprise at trial." F.2d 1063, 1066-67 (3d Cir. 1989). United States v. Rosa, 891 As the Court of Appeals Therefore, the
stated in United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1971), cert. denied, 405 U.S. 936 (1972): The purpose of the bill of particulars is to inform the
17
Moreover, Point I of the memorandum of law of defendant Kjonaas sets forth the arguments that will be made to dismiss the Superseding Indictment and none appear to be wanting for additional factual underpinnings. Indeed, the instant motion seems more a tactical ploy for more time than a request seeking information that is needed in order to file dispositive motions. - 36 -
Filed 11/12/04 Page 40 of 75
defendant of the nature of the charges brought against him to adequately prepare his defense, to avoid surprise during the trial and to protect him against a second prosecution for an inadequately described offense . . . . A bill of particulars should fulfill this function when the indictment itself is too vague and indefinite for such purposes. (Quotation marks omitted). A bill of particulars is not an
investigative vehicle for the defense and it is not a discovery tool to obtain disclosure of the Government's case prior to trial. United States v. Kilrain, 566 F.2d 979, 985 (5th Cir), Rather, the bill is "intended
cert. denied, 439 U.S. 819 (1978).
to give the defendant only that minimum amount of information necessary to permit the defendant to conduct his own investigation." Cir. 1985). United States v. Smith, 776 F.2d 1104, 1111 (3d
If the defendant can derive this information from
the indictment and discovery, see United States v. Boffa, 513 F. Supp. 444, 485 (D. Del. 1980), aff'd in part, rev'd in part on other grounds, 688 F.2d 919 (3d Cir. 1982), cert. denied 460 U.S. 1022 (1983), then there is no need for the bill to issue. as long as the Superseding Indictment itself enables the defendants to understand the accusations against them and the facts that the Government will present at trial, a bill of particulars is unnecessary and inappropriate. See United States Thus,
v. Deerfield Specialty Paper, 501 F. Supp. 796, 810 (E.D. Pa. 1980). Consequently, a bill should be granted only where the
indictment is so vague as to be unfair. Moreover, in evaluating a request for a bill of particulars, the court must examine the information already - 37 -
Filed 11/12/04 Page 41 of 75
provided by the government through discovery or by other means. United States v. Parlavecchio, 903 F.Supp. 788, 795 (D.N.J. 1995); see also United States v. Caruso, 948 F. Supp. 382, 393 (D.N.J. 1996) (when discovery provided by the government fills in the outline of the indictment, the necessity of the bill of particulars declines). In this case, the defendants have been supplied with the "central facts" via the details set forth in the Superseding Indictment, and the discovery that the Government has provided to date. See United States v. Vastola, 670 F. Supp. 1244, 1269
(D.N.J. 1987, aff'd in part, rev'd in part on other grounds, 899 F.2d 211 (3d Cir. 1990). The breadth of this information will
enable the defendants to prepare their defense as well as to avoid both surprise and the risk of double jeopardy. 513 F. Supp. at 458. See Boffa,
Viewed together, the defendants have been
sufficiently informed of the nature of the charges against them so as to adequately prepare a defense and receive a fair trial. Moreover, [a] bill of particulars, unlike discovery, is not intended to provide the defendant with the fruits of the governments investigation, United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985). Therefore, the defendants thinly
veiled demand for impermissible discovery through the issuance of a bill of particulars should be denied. Defendant Kjonaas relies heavily upon United States v. Bin Laden, 92 F.Supp. 2d 225 (S.D.N.Y. 2000), for his argument that a bill of particulars should issue. - 38 However, a reading of the Bin
Filed 11/12/04 Page 42 of 75
Laden decision reveals that it is factually dissimilar to the instant case. Moreover, the law set forth by the district court,
when applied to the facts of the instant case counsels against the issuance of a bill of particulars. In Bin Laden, fifteen defendants were charged with 267 discrete criminal offenses. Each of the defendants was charged
with participating in at least five distinct criminal conspiracies and two defendants were charged with being involved in six separate conspiracies. criminal objectives. The six conspiracies involved four The criminal conspiracies were
Id. at 228.
alleged to have been committed over a ten year period and overt acts were alleged to have occurred in Afghanistan, Pakistan, the Sudan, Somalia, Kenya, Tanzania, Malaysia, the Philippines, Yemen, the United Kingdom, Canada and the United States. 234. a Id. at
The Court found that the Indictment in the case, impose[d]
a seemingly unprecedented and unique burden on the Defendants
and their counsel in trying to answer the charges that have been made against them. Id. at 235. Indeed, one of the overt acts
in furtherance of one of the conspiracies read as follows: At various times from at least as early as 1989 until the date of the filing of this Indictment, the defendants USAMA BIN LADEN, and MAMDOUH MAHMUD SALIM, and others known and unknown to the grand jury, engaged in financial and business transactions on behalf of al Qaeda including but not limited to: purchasing land for training camps; purchasing warehouses for storage of items including explosives; purchasing communications equipment; transferring funds between corporate accounts; and transporting currency and weapons to - 39 -
Filed 11/12/04 Page 43 of 75
members of al Qaeda and its associated terrorist organizations in various countries throughout the world. To carry out some of these financial transactions, the defendant MAMDOUH MAHMUD SALIM traveled to various places on behalf of al Qaeda and its affiliated groups, including, among other places to Sudan, Afghanistan, Malaysia and the Philippines. Id. at 237. Thus, in the Bin Laden case, the conspiracies were alleged against more defendants (15 individuals as opposed to seven), were more vast (six as opposed to two), covered a much longer time frame (ten years compared to three), and spanned the world. While the overt acts alleged in the Bin Laden case, illustrated above, were temporally broad, encompassing many ill-defined acts committed around the world, the overt acts alleged in the instant Superseding Indictment are limited to a specific time and a single act in one place. Thus, the instant case, unlike Bin
Laden, does not present the Court or defense counsel with a seemingly unprecedented and unique burden. Id. At 235.
The Court in Bin Laden set out certain parameters in deciding whether a bill of particulars should issue, noting that [e]ven under the amended rule, a bill of particulars is not a matter of right. Id. at 233, quoting 1 Charles Alan Wright, Federal Practice and Procedure 129 at 648 (3d ed. 1999). The court found that in exercising its discretion it must examine the totality of the information available to the defendant through the indictment, affirmations, and general pre-trial
- 40 -
Filed 11/12/04 Page 44 of 75
discovery and determine whether, in light of the charges that the defendant is required to answer, the filing of a bill of particulars is warranted. Bin Laden, 92 F.Supp.2d at 233. The
Court noted that a bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused. Id., quoting United States v. Feola, 651 F.Supp. 1068,1132 (S.D.N.Y. 1987), affd 875 F.2d 877 (2d Cir. 1989). Moreover, the court found that the acquisition of evidentiary detail is not the function of a bill of particulars, [United States v. Feola, 651 F.Supp. 1068,1132 (S.D.N.Y. 1987), affd 875 F.2d 877 (2d Cir. 1989)] and that it is not the bills function to allow defendants a preview the evidence or the theory of the governments case. Bin Laden, 92 F.Supp.2d at 233, quoting
United States v. Taylor, 707 F. Supp. 696, 699 (S.D.N.Y. 1989). Finally, the court wrote that in deciding whether a bill of particulars is needed, the court must determine whether the information sought has been provided elsewhere, such as in other items provided by discovery, responses made to requests for particulars, prior proceedings, and the indictment itself. Laden, 92 F.Supp.2d at 233-34, quoting United States v. Strawberry, 892 F.Supp. 519, 526 (S.D.N.Y. 1995). Given the standards discussed in the Bin Laden decision, the defendants in this case are not entitled to a bill of Bin
- 41 -
Filed 11/12/04 Page 45 of 75
particulars.
First, given the totality of information provided
to the defendants, they can easily discern the thrust of the Governments case and prepare a defense. Indeed, the allegations
in the Superseding Indictment are narrowly drawn and specific as to time and place. The overt acts deal largely with postings on
SHAC website involving the targeting of individuals or companies, followed by acts of violence directed at those targets, followed by a SHAC website posting touting the violence and spurring others on to additional acts of violence as directed by the website. This is much unlike the broad and unspecific acts set
forth in the Bid Laden Indictment18. Further, the discovery in this matter has also particularized the Governments case. The tape recorded
conversations between various co-defendants, touting their victories when companies ceased doing business with HLS under the threat of further actions and discussing other of their targets particularizes the conspiratorial allegations. Moreover, tape
recordings and videotapes already provided show certain defendants giving speeches wherein they gloat about the violence that has occurred at their direction, tout how well the campaign
18
Contrast, the overt act set forth at page 237 of the Bin Laden opinion, 92 F.Supp. 2d at 237, where the Court required the Government to provide particulars, with the overt act set forth in the first full paragraph of page 238 of the opinion where the Government was not required to provide further information. The overt acts in the instant Superseding Indictment more closely track the latter. - 42 -
Filed 11/12/04 Page 46 of 75
has worked in driving businesses from HLS, and predicts the demise of HLS so long as the pressure is kept on the company and the various targets. Thus, what defendants truly seek by the
bill or particulars is that to which they are not entitled, the acquisition of evidentiary detail and a preview of the evidence. See Bin Laden, 92 F.Supp.2d at 225. That the defendants are merely seeking to have the Government preview the case for them is most particularly exhibited in the requests for various information regarding the attack on TPs home19 and threats at RHs home20. In both those
instances, the defendants Kjonaas and Gazzola have sought information about the descriptions of people who were at the homes of the respective victims. In both cases, the Government
has already provided videotapes of those events in discovery which clearly provide the answers defendants have sought by way of a bill of particulars. Thus, not only do the defendants seek
discovery, they seek to have the Government explain how the discovery operates and what particular parts of the discovery
These requests are embodied in request numbers 21 and 22 of Exhibit O to the affidavit of Isabel McGinty, Esq. and five separate requests (unnumbered) on page 8 of the letter of Michael Armstrong, Esq., dated November 8, 2004. These requests are embodied in request numbers 12 and 13 of Exhibit O to the affidavit of Isabel McGinty, Esq. and two separate requests (unnumbered) on page 7 of the letter of Michael Armstrong, Esq., dated November 8, 2004. - 43 20
19
Filed 11/12/04 Page 47 of 75
pertain to specific allegations21.
The Government is not See Bin Laden, 92
required to preview its case in discovery. F.Supp.2d at 233.
It is only required to provide the defendants
with the information necessary to mount a defense if that is their choice. The adversary system requires both sides of an The defendants in this case wish
issue to perform certain tasks.
the Government to provide the defendant with the fruits of its investigation. Parlavecchio, 948. F2d. Supp 382, 393. In this
the defendants go too far. Finally, defendants request for information as to when they joined the indictment and other particulars regarding when the conspiracy was formed seeks information which the Government is not required to provide. Indeed, in the Bin Laden decision,
relied upon by the defendants, the Court held that requests, such as those made by the Defendants here, for particulars as to
21
This practice of seeking large amounts of discovery and then complaining that it cannot understand the material has most recently manifested itself in defendant Kjonaas request that the Government provide him with copies of all the videotapes seized during a search. See Motion of Kjonaas filed on or about November 8, 2004. The Government has already copied and provided to defendants some 72 videotapes which it believes are relevant to this case. In addition, the Government has invited all defense counsel to view all the other tapes in its possession. Not a single defense counsel has sought to view the tapes, but rather defendant Kjonaas has sought to be provided copies of all the tapes copies which the discovery rules do not require him to be provided with. Given that defendant Kjonaas has requested in his bill of particulars information already provided by way of videotape, defendants request for extraneous material will only place a further burden on the Government and generate a useless expense. - 44 -
Filed 11/12/04 Page 48 of 75
when, where, how and with whom each individual defendant joined an alleged conspiracy have almost uniformly been denied. Bin Laden, 92 F.Supp.2d at 242, quoting United States v. Kahner, 203 F.Supp. 78, 84 (S.D.N.Y.1962). Accordingly, defendants motion for a bill of particulars should be denied.
- 45 -
Filed 11/12/04 Page 49 of 75
VI.
THIS COURT SHOULD REJECT DEFENDANTS REQUEST FOR DISCLOSURE OF GRAND JURY MATERIALS BASED UPON MERE SPECULATION AND BARE ASSERTIONS. Defendant Kjonaas has moved for the disclosure of grand jury
materials based upon the bare assertion that access to the grand jury transcript [is needed] in order to proceed with his challenge to the indictment. Kjonaas Mem. at 44. In doing so,
defendant Kjonaas has failed to set forth the appropriate standard for the disclosure of grand jury materials, he has failed to satisfy that standard, and he has failed to acknowledge let alone distinguish unfavorable, binding precedent in the Supreme Court and this Circuit. In particular, defendant
Kjonaas has not shown with particularly a need for the grand jury materials that outweighs the public interest in secrecy. United States v. McDowell, 888 F.2d 285, 289 (3d Cir. 1988). Accordingly, this Court must deny his motion. Defendant Fullmer has also moved for the disclosure of grand jury materials. He, too, has failed to show a particularized
need for disclosure, relying on the empty assertion that [o]ne cannot think of a greater situation than that of Mr. Fuller when his connection to this case is marginal. Fullmer suggests that
the disclosure of the materials might support his claim that his connection to this case is marginal. As discussed further below,
however, a defendants great desire to engage in a fishing expedition does not justify disregarding the secrecy of grand
- 46 -
Filed 11/12/04 Page 50 of 75
jury proceedings.
See Thomas v. United States, 597 F.2d 656,
658 (8th Cir. 1979) (explaining that an expression of a generalized hope by [defendant] that he might find some defect in the grand jury proceedings is a "fishing expedition[]" that does not provide sufficient grounds for disclosure [of grand jury transcripts] prior to or at trial). Similarly, defendant Harper has moved for the disclosure of grand jury materials without satisfying the appropriate standard for the disclosure of grand jury materials. Instead, defendant
Harper is relying on the general claim that he needs the materials to prepare a defense. As noted above, the
generalized hope that the grand jury materials might reveal grounds for a defense does not justify disregarding the secrecy of grand jury proceedings. The need for secrecy of grand jury proceedings is wellestablished. See, e.g., Douglas Oil Co. v. Petrols Stops As the Supreme Court
Northwest, 441 U.S. 211, 218 (1979).
emphasized in Douglas Oil Co., the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. Id. Although the need for secrecy diminishes
when the grand jury whose transcripts are sought has concluded its operations, remain. the interests in maintaining confidentiality (recognizing that there are possible
Id. at 223.
detrimental effects upon the functioning of future grand
- 47 -
Filed 11/12/04 Page 51 of 75
juries, including the possibility that witnesses may be hesitant to testify if they know their testimony will one day be disclosed). Given the indispensable secrecy of grand jury proceedings, disclosure of grand jury materials is not warranted unless there is a compelling necessity that is shown with particularity. United States v. Proctor & Gamble Co., 356 U.S. 677, 681 (1958). In United States v. McDowell, this Court explained that [t]o support a motion for judicially ordered disclosure of grand jury testimony, a party must show a particularized need for that information which outweighs the public interest in secrecy. F.2d 285, 289 (3d Cir. 1988). The burden of proof is on the 888
party seeking disclosure in this case, the defendants to show a particularized need. See Pittsburgh Plate Glass Co. v. United
States, 360 U.S. 395, 400 (1959) (The burden [] is on the defense to show that 'a particularized need' exists for the [grand jury] minutes that outweighs the policy of secrecy.). As stated above, none of the defendants have shown a particularized need that justifies the disclosure of grand jury materials. Defendant Kjonaas incorrectly suggests to this Court
that [d]isclosure of grand jury materials is particularly warranted in a conspiracy case and relies on the Supreme Courts opinion in Dennis v. United States, 384 U.S. 855 (1966). Kjonaas
further relies on Dennis in support of his claim that the grand
- 48 -
Filed 11/12/04 Page 52 of 75
jury materials should be turned over to the defense for the attorneys for the individual defendants to determine how the materials should be used. As the Supreme Court has subsequently
explained, however, the request for disclosure of grand jury records in Dennis occurred in quite different circumstances. Douglas Oil Co., 441 U.S. at 221. In Dennis, the defendants (prior to a retrial) were seeking the transcripts of the grand jury testimony of four witnesses who already had testified in public concerning the same matters; the defendants had also shown it to be likely that the [four] witnesses testimony at [the first] trial was inconsistent with their prior grand jury testimony. 221. Douglas Oil Co., 441 U.S. at
The Supreme Court relied on prior case law recognizing a
particularized need for grand jury transcripts to impeach a witness, to refresh his recollection, [or] to test his credibility and found that the defendants were entitled to examine the transcripts of these four witnessess grand jury testimony. Dennis, 384 U.S. at 870 (quoting Proctor & Gamble Therefore, contrary to Kjonaass
Co., 356 U.S. at 683).
suggestion, Dennis does not stand for the general proposition that in any conspiracy case, grand jury materials should be disclosed to a defendant without showing a particularized need
- 49 -
Filed 11/12/04 Page 53 of 75
for the information.22 Similarly, defendant Kjonaass reliance on a form order from the District of Idaho is not a substitute for the particularized showing mandated by Supreme Court and Third Circuit precedence. That the District of Idaho has a form order available for litigants to use does not show that [s]uch disclosure is routinely given by courts in other districts. 46 (emphasis added). Kjonaas Mem. at
Such a routine would conflict with the
Third Circuits position that grand jury proceedings generally must remain secret except where there is a compelling necessity. McDowell, 888 F.2d at 289. Moreover, the defendants contention that disclosure of the grand jury materials might disclose the basis for a motion to dismiss the indictment or some other defense is not a compelling necessity. See, e.g., Kjonaas Mem. at 45 (the material is
needed for the proper analysis of whether this prosecution is barred by the First Amendment . . .); Fullmer Mem. at 14 (a review of the grand jury must be looked at to determine whether or not appropriate correct information was presented . . .) (emphasis added). As the Third Court has made clear, mere
speculation that gross or prejudicial irregularities in the
Furthermore, in accordance with the Jencks Act and this Courts discovery order, the defendants will already receive any transcripts of the grand jury testimony of any trial witness before that witness testifies at trial. - 50 -
22
Filed 11/12/04 Page 54 of 75
grand jury may have occurred will not suffice to support that required showing. United States v. Budzanoski, 462 F.2d 443,
454 (3d Cir. 1972); accord United States v. Harbin, 585 F.2d 904, 907 (8th Cir. 1978) (finding that District Court did not abuse its discretion in denying motion for disclosure based on defendant's general plea that an inspection of the minutes might yield a ground upon which to move to dismiss the indictment); see also United States v. Bennett, 702 F.2d 833, 836 (9th Cir. 1983) ([D]efendant's assertion that he had no way of knowing whether prosecutorial misconduct occurred does not constitute a particularized need . . . .). Defendants have not articulated how or why particular grand jury information is necessary for their motions or defenses. To
the contrary, defendant Kjonaas has taken every opportunity to brief and argue to this Court why this prosecution is barred by the First Amendment. See generally Kjonaas Mem. at 9-34
(providing a 25-page preview of motions including First Amendment defenses that Kjonaas intends on raising); Kjonaas Brief In Opposition to Motion to Revoke Bail at 19-21 (previewing First Amendment claim). Clearly, the non-disclosure of the grand Indeed, none of the
jury materials has not proven a barrier.
defendants have articulated how the issue of whether or not this prosecution is barred by the First Amendment is dependent upon what the grand jury heard.
- 51 -
Filed 11/12/04 Page 55 of 75
Likewise, whether or not defendant Fullmer is a member of the charged conspiracy is an issue of fact that a jury will ultimately decide based upon the evidence the Government will present at trial not the evidence presented to a grand jury. Defendant Fullmers claim to the contrary is not a compelling or particularized reason to justify disregarding the secrecy of grand jury proceedings. Finally, this Court should reject defendant Kjonaass request for the text of any charge, as well as the drafts of the indictment, prepared by the United States Attorneys Office (or any of its agents) for the grand jurys review and use. Mem. at 47. Kjonaas
Again, Kjonaas does not articulate any specific need
for this information, but rather, simply states that it is needed for future motions to dismiss on the grounds of selective prosecution and to strike extraneous material from the Indictment. Id. A request for the text of any charge read to
the grand jury is simply a different way of requesting the grand jury transcripts for that day and, thus, should be rejected for the reasons set forth above. In addition, although a draft of an
indictment falls outside Fed. R. Crim. P. 6(e) if it does not reveal grand jury information, it is still protected against disclosure under the work-product doctrine. See Manna v. United
States Department of Justice, 815 F. Supp. 798, 815 (D.N.J. 1993) (concluding that drafts of court-filings prepared by Department
- 52 -
Filed 11/12/04 Page 56 of 75
of Justice attorneys and the worksheets prepared for the indictment and prosecution were protected by the work-product privilege from disclosure under FOIA). In sum, the defendants have made nothing more than bare assertions that the disclosure of the grand jury transcripts in this case may reveal the bases for motions to dismiss the Superseding Indictment. The defendants have offered no evidence
in support of this allegation and, indeed, have not described with particularly what information they believe might be disclosed that is necessary for their motions or defense. Furthermore, the defendants have not shown that their vague assertions of need outweigh the strong interest of grand jury secrecy. Accordingly, this Court should deny their motions.
- 53 -
Filed 11/12/04 Page 57 of 75
VII. THE GOVERNMENT WILL PROVIDE THE DEFENDANTS WITH THE WIRETAP INFORMATION THEY HAVE REQUESTED. Defendants have requested various documents relative to the Title III applications in this case. Defendants have not alleged
any impropriety in the manner in which the Title III was obtained and have not articulated a specific need for the material. Nevertheless, they seek information beyond that to which they are entitled and beyond that to which Rule 16 of the Fed. R. Crim. P. provides. That having been said, to the extent that the
defendants have requested discrete pieces of information that underlie the applications to the Court, the Government has no objection to providing that information. Accordingly requests 1,
3, 4, 5, 7, 9 and 10 (to the extent that the defendants seek affidavits and applications, and not underlying reports or trap and trace orders) will be provided to the defendants to the extent that they have not already been disclosed and are obtainable. Requests 3 and 8 request search warrant information To
that may not be in the custody or control of the Government. the extent it can obtain the Massachusetts documents, the Government will do so and will make them available to the defendants. The Government notes that the defendants may very
well be in possession of the search warrant materials requested in item 3 because defendant Gazzola was a defendant in a Massachusetts case involving that search warrant and was probably provided the material in the context of that prosecution. The Government objects, however to requests numbered 2, 6,
- 54 -
Filed 11/12/04 Page 58 of 75
11 and 12 because they effectively seek trap and trace information and every law enforcement report generated in this case not only by federal authorities but also by every state authority that the agents have come in contact with. Defendants request in this instance is nothing more than a fishing expedition and runs afoul of the rules of discovery. Federal Rule of Criminal Procedure 16 (a)(2)states as follows: Information Not Subject to Disclosure. Except as Rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. 3500. Fed. R. Crim. P. 16(a)(2). See also, United States v. Rivera,
198 F.R.D. 48, 52 (W.D.N.Y. 1999)(holding defendants not entitled to pen register and trap and trace information) which the government here has agreed to provide. In United States v. Chimera, 201 F.R.D. 72 (W.D.N.Y. 2001), the defendants, like the defendants here, sought a panoply of information relating to the applications and interception of a Title III interception. The Chimera defendants sought progress
reports, minimization instructions, investigative reports and drafts of applications. Id. at 75, claiming that it would
enable then to determine whether the requirements for issuance of the intercept orders, particularly as provided in 2518(1)(c) (showing that other standard investigative techniques had been
- 55 -
Filed 11/12/04 Page 59 of 75
tried and that such techniques if utilized would be unsuccessful or dangerous) had been met and, in the case of extensions of such orders, whether the requirements for such extensions as provided in 2518(1)(c) were satisfied. Id. After discussing each item
the defendants sought, the court rejected each one and denied the defendants request for the Title III discovery. Id. at 81. So
too here, the Court should reject the defendants overbroad request to conduct a fishing expedition.
- 56 -
Filed 11/12/04 Page 60 of 75
VIII.
THIS COURT SHOULD DENY DEFENDANT HARPERSS MOTION TO SUPPRESS BECAUSE THE WARRANT TO SEARCH HARPERS RESIDENCE WAS BASED UPON PROBABLE CAUSE AND IT DESCRIBED THE ITEMS TO BE SEIZED WITH PARTICULARITY. Defendant Harper is challenging the search conduct by FBI
agents of his residence at 5526 17th Avenue, Seattle, Washington. The search of this residence was conducted pursuant to a search warrant issued by a United States Magistrate Judge for the Western District of Washington. As discussed further below, the
warrant was based upon probable cause that a search of Harpers residence would reveal evidence, fruits, or instrumentalities of the commission of crimes committed in violation of 18 U.S.C. 43, 371, and 875(c). In that regard, the warrant authorized a
search for, and the seizure of, specific items related to the violations of those federal offenses. Warrant. See Attachment A to
FBI agents relied upon the judicially issued warrant to
conduct the search of Harpers residence. Harper now argues that the warrant lacked probable cause that (1) he was a principal in SHAC; and (2) he engaged in specific illegal activity. Harper Mem. at 15. While
acknowledging that SHACs listed criminal activities [in the affidavit] may have been sufficient to search SHAC headquarter, and that it is clear Harper associated with SHAC, Harper nevertheless claims that these facts do not provide probable cause for a search of his residence because [m]ere association with an organization absent more, is never sufficient. Id.
Harper also suggests that probable cause is lacking because the
- 57 -
Filed 11/12/04 Page 61 of 75
affiant who submitted the affidavit in support of the warrant did not speak from personal knowledge. Id. at 16. In
addition, Harper asserts that the warrant lacks particularity. Id. at 17. All of Harpers arguments fail. As discussed below, the
affidavit did provide sufficient probable cause to support the issuance of the search warrant. Moreover, the items to be seized In any event,
were described with the requisite particularity.
the FBI agents relied upon the warrant in good faith, and thus, suppression is unjustified based upon the Leon good faith exception. A. The Warrant Demonstrated The Existence Of Probable Cause.
The warrant demonstrated the existence of probable cause. Probable cause is determined by a totality of the circumstances test. 1997). United States v. Williams, 124 F.3d 411, 419 (3d Cir. In determining whether there is probable cause based upon
the facts contained in an affidavit, this Court must give deference to the initial probable cause determination made by the magistrate judge . United States v. Conley, 4 F.3d 1200, 1205
(3d Cir. 1993); see also United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001) (explaining that the Court of Appeals sits like a district court and must, like the district court, give great deference to the magistrate judges probable cause determination). The task of the issuing magistrate is simply to determine
- 58 -
Filed 11/12/04 Page 62 of 75
whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. The
reviewing court is to uphold the warrant as long as there is a substantial basis for a fair probability that the evidence will be found. Id. Although in a particular case it may not be
easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. United States v. Ventresca, 380 U.S. 102,
109 (1965); accord United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001). Finally, in making this determination, the affidavit
must be read in a common sense and nontechnical manner. Williams, 124 F.3d at 420; Conley, 4 F.3d at 1205-06. The warrant in the case sub judice demonstrated the existence of probable cause that evidence of the commission of crimes in violation of 18 U.S.C. 43 (Animal Enterprise Terrorism), 371 (conspiracy), and 875(c) (threatening interstate communications) may be found at Harpers residence. The existence of such probable cause was sufficient to authorize a search of Harpers residence. See Illinois v. Gates, 462 U.S.
213, 238 (1983) (defining probable cause to search as a fair probability that contraband or evidence of a crime will be found in a particular place). First, the affidavit in support of the warrant showed that [n]otwithstanding SHACs claim that it is a legal organization
- 59 -
Filed 11/12/04 Page 63 of 75
that does not break the law, following their identification as targets of SHAC, HLS and its employees, and companies doing business with HLS and their employees, have been subjected to numerous criminal acts, including acts of violence. See Gutierrez Aff. 8 (Appendix A to Harpers Mem.). In
support, the affidavit noted that one of the managing directors of HLS in the United Kingdom was severely beaten and at least eleven of HLSs United Kingdom employees have had their cars firebombed. Id. The affidavit also noted that in March 2001,
animal rights activists broke into an HLS facility in New Jersey and stole fourteen beagles. Id. 9. The affidavit explained
that although the SHAC website posts these events anonymously and states that SHAC does not condone illegal activities, the affiant had probable cause to believe that this anonymity and these statements represent nothing more than an effort to evade responsibility for the crimes at issue. Id. In support, the
affidavit set forth one example in which resumes of students who submitted applications to HLS were stolen from a job fair at Rutgers University. Id. 10. SHAC placed a posting on its
website from the person responsible, but claimed it was anonymous. Id. 11. Within days, however, SHAC itself posted
the names and addresses of the students and posted a sample letter that others could send to the students to harass them. Id. at 11. In addition, the affidavit stated that the SHAC
- 60 -
Filed 11/12/04 Page 64 of 75
website itself (1) threatens individuals as to what will happen to them if they become targets of SHAC (and cited as an example the Top 20 terror tactics posted on the website), and (2) claims that its efforts have caused substantial disruption to HLS and its business. Id. 13, 15. Taken as a whole, these
factual assertions in the affidavit provided a fair probability that SHAC and its organizers were engaged in criminal activity, including violations of 18 U.S.C. 43. as much. See Harper Mem. at 15. Indeed, Harper concedes
Second, the affidavit provided probable cause that Harper was an active participant and leader in the SHAC campaign. Gutierrez Aff. 20. (1) In support, the affidavit stated that:
Harper was active at numerous SHAC events and protests
(including a presentation in which Harper explained that we at SHAC were telling people this guys the owner [i.e., Warren Stevens of S. Corp.], heres the board of directors, and thats what we were targeting); (2) Harper stayed at the SHAC headquarters while in New Jersey; and (3) Harper himself had publicly stated on several occasions that he was involved with the SHAC campaign. Gutierrez Aff. 20-22, 27. In addition,
the affidavit pointed out that an analysis of telephone toll records revealed that the telephone at Harpers residence had been in regular contact with the SHAC headquarters. Id. 23.
Similarly, an analysis of Harpers e-mail account indicated that
- 61 -
Filed 11/12/04 Page 65 of 75
he had been in regular contact with defendant Kjonaas.
Id. 24.
Taken as a whole, these factual assertions in the affidavit provided a fair probability that Harper was an active participant in the SHAC campaign. Given the factual assertions in the affidavit that SHAC was involved in criminal activity and that Harper was active in SHAC and in regular contact with others in SHAC, the search warrant was supported by probable cause that evidence of SHACs criminal activities may be found at Harpers residence. This Court,
therefore, should not set aside the magistrate judges probable cause determination. Harper appears to believe that if the warrant did not demonstrate that evidence of Harpers own criminal activity would be found within the residence, it did not demonstrate the existence of probable cause. This is incorrect. Although the
warrant did not necessarily provide direct evidence that proof of Harpers participation in criminal activity would be present in his residence, direct evidence linking the place to be searched to the crime is not required for the issuance of a search warrant. Conley, 4 F.3d at 1207. Instead, probable cause can
be, and often is, inferred from the type of crime, the nature of the items sought, the opportunity for concealment, and normal inferences about where a criminal might hide items. See id.
Here, the warrant provided evidence that SHAC engaged in illegal
- 62 -
Filed 11/12/04 Page 66 of 75
activities, that Harper was an active participant in SHAC, and that Harper had regular contact (via e-mail communications) with others engaged in SHACs illegal activities. Given these facts,
it was a reasonable inference that in his residence (and specifically in his computer) there might be evidence regarding these illegal activities. Harper also challenges the warrant by attempting to argue that the warrant lacked probable cause because it relied exclusively on information told to the affiant. 16. Harper Mem. at
This assertion, however, is refuted by the affidavit itself.
In the affidavit, Special Agent Gutierrez of the FBI, states that the information in the affidavit is based upon (1) his own investigation, which he had participated in for approximately one year; (2) his review of reports prepared by other law enforcement officers; and (3) information provided to him by other law enforcement officers. Gutierrez Aff. 1. Throughout
the affidavit, Agent Gutierrez indicates that he has personal knowledge of the information contained in the affidavit, e.g., id. 23 (I am aware that telephone calls regularly have been made . . .); 25 (I also know that Harper has continued to maintain e-mail contact with SHAC . . . . I am aware of e-mail sent between Harpers e-mail address and SHACs . . . headquarters). Agent Gutierrez also makes numerous references
to the materials he is relying upon in the affidavit, see, e.g.,
- 63 -
Filed 11/12/04 Page 67 of 75
id. 6 (According to a newsletter published by SHAC . . .; 8 (a posting on SHACs website . . .); 13 (The website also threatens individuals as to what will happen to them if they become targets of SHAC.); 14 (Another posting on the SHAC website gives tips on making harassing telephone calls.). affidavit makes clear that the affiant relied upon his own personal knowledge and information he reviewed. Consequently, The
Harpers assertion that Agent Gutierrez relied exclusively on information told to him by others is not accurate. Last, Harper suggests that probable cause to seize his computer was lacking because, as the affidavit recognizes, Harpers computer was struck by a tree and . . . he had used a special kind of software to wipe out information. at 17. Harper Mem.
Harper conveniently ignores the following explanation in
the affidavit: Although it has been reported that Harper used a wiping software that erased the hard drive on his own personal computer each time the computer was turned off, computer experts with whom I have consulted have informed me that it still is likely that they will be able to recover evidence from the computer using sophisticated software and/or techniques. Those same experts have informed me that they also believe that, even though Harpers personal computer was damaged when the tree fell and caused an electrical surge and rendered the computer inoperational in December 2002, they believe that it is likely that stored evidence still could be recovered from the computer. Therefore, Harpers argument that there was no probable cause to search his computers lacks merit. For all these reasons, the totality of the circumstances - 64 -
Filed 11/12/04 Page 68 of 75
regarding the evidence in the warrant was sufficient to establish probable cause a fair probability that contraband or evidence of crime will be found in a particular place. Gates, 462 U.S. at 238. B. Illinois v.
This was all that was required.
The Warrant Described The Items To Be Seized With Sufficient Particularity.
Harper also claims that the warrant failed to adequately particularize the property to be seized. is somewhat confusing. This argument, however,
Harper relies on the inventory of items
seized during the search to claim that the search warrant lacked particularly. See Harper Mem. at 17. It is not clear how an
inventory of items seized during the ensuing search either adds or subtracts from the particularly of a search warrant. In any
event, the warrant in this case described the items to be seized with sufficient particularity. A search warrants language describing the items to be seized must be sufficiently definite to enable the searcher to reasonably ascertain and identify the things authorized to be seized. United States v. Mosby, 101 F.3d 1278, 1281 (8th Cir. The purpose of this requirement is
1996) (quotations omitted).
to prevent general exploratory rummaging through a persons belongings. Id; Conley, 4 F.3d at 1207 (in order to prevent a
generally, exploratory rummaging, a warrant must give a particular description of the things to be seized). However, the
standard in reviewing the particularity requirement is not a - 65 -
Filed 11/12/04 Page 69 of 75
hypertechnical one; rather, a standard of practical accuracy is used. Mosby, 101 F.3d at 1281; United States v. Jones, 54 F.3d
1285, 1291 (7th Cir. 1995) (holding that the particularity requirement traditionally has been applied in a pragmatic fashion that recognizes realistically the needs of law enforcement and gives due regard for the practicalities of the situation). Here, the warrant provided the particularity required. allowed for the seizure of items that constituted evidence, fruits, or instrumentalities of violation of 18 U.S.C. 43, 371, and 875(c), including specifically: or relating to HLS, (2) SHAC, (3) (1) documents referring to It
documents referring to or relating to
documents referring to or relating to companies and
employees targeted by SHAC (and listed specific companies), (4) documents relating to animal enterprise terrorism or any illegal activity related to interstate travel in aid of those crime, (4) mailings lists, telephone books, and similar items, (5) all computers and computer-related items. This specificity
fulfilled the particularity requirement of the Fourth Amendment. This Court has upheld general categories when the categories are limited by the type of crime being investigated in this manner. For example, in Conley, the warrant used the phrase all However, this Court noted that the warrant
revenue records.
limited the search to items related to an illegal gambling operation, which had the requisite specificity. See United
- 66 -
Filed 11/12/04 Page 70 of 75
States v. Kepner, 843 F.2d 755, 762-63 (3d Cir. 1988); United States v. Johnson, 690 F.2d 60, 64-66 (3d Cir. 1982) (upholding warrant against particularity challenge where warrant allowed seizure of instrumentalities of the commission of the crime of conducting an illegal gambling business). Here, as in earlier
Third Circuit cases, the allegedly general authorization to seize the items is limited by the type of crimes identified in the affidavit namely, violations of 18 U.S.C. 43, 371, and 875(c). As this Court has noted, no tenet of the Fourth
Amendment prohibits a search merely because it cannot be performed with surgical precision. Conley, 4 F.3d at 1208.
Here, the warrant provided the requisite particularity to satisfy the Fourth Amendment. C. The Officers Relied On The Warrant In Good Faith And Thus Suppression Is Not Warranted.
In any event, suppression is unnecessary because the items seized were obtained in objectively reasonable reliance on the warrant issued. United States v. Leon, 468 U.S. 897, 920-26
(1984) Under Leon, even if warrant lacks probable cause, the exclusionary rule cannot be applied to suppress evidence obtained in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate. Id. (a warrant issued by a
magistrate normally suffices to establish that reliance on the warrant was objectively reasonable). Only where the warrant was
based on a barebones affidavit so lacking in indicia of - 67 -
Filed 11/12/04 Page 71 of 75
probable cause as to render official belief in its existence entirely unreasonable, can evidence be suppressed. 915, 919, 923.23 Here, the warrant was not so lacking in indicia of probable cause as to render the agents belief in its existence entirely unreasonable. As set forth supra, the warrant presented a number This was not a case in which the warrant 468 U.S. at
of specific facts.
contained mere conclusory assertions or a single piece of evidence which the law of the stationhouse shop would recognize as clearly insufficient. 124 F.3d at 421. Williams, 3 F.3d at 74. See Williams,
Accordingly, for this additional reason,
suppression is unjustified.
There are four exceptions to the Leon good faith exception: (1) the magistrate issued the warrant in reliance on a deliberately ro recklessly false affidavit; (2) the magistrate abandoned his judicial role and failed to preform his neutral and detached function; (3) the warrant was based on an affidavit so lacking in indicia of probable cause to render official belief in its existence entirely unreasonable; or (4) the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized. See Williams, 3 F.3d at 74 n.4. None of these exceptions is present here. - 68 -
23
Filed 11/12/04 Page 72 of 75
IX.
THE GOVERNMENT HAS NO OBJECTION TO THE DEFENDANTS' REQUESTS TO JOIN IN THE APPLICABLE MOTIONS FILED BY THEIR RESPECTIVE CO-DEFENDANTS. Each of the defendants has moved for leave to join in the
motions filed by their respective co-defendants.
The Government
has no objection to their request to join in the applicable motions of their co-defendants.
X.
THE DEFENDANTS SHOULD NOT BE PERMITTED TO FILE ADDITIONAL BRIEFS WITHOUT FIRST OBTAINING LEAVE OF COURT.
- 69 -
Filed 11/12/04 Page 73 of 75
On August 3, 2004 this Court issued an Order containing a schedule for pretrial motions. In that Order, the defendants
were to make dispositive motions by no later then November 12, 2004 and a second round of pretrial motions addressing discovery and other matters was to be filed on or before December 15, 2004. That Order notwithstanding, various defendants filed various motions at various times, responses to which are contained herein, that did not comport to the Courts Order. For instance,
defendant Kjonaas filed several motions on or about October 28, 2004. Defendant Harper filed motions on or about the same date
and defendant Fullmer filed motions a few days prior to that24. Defendant Gazzola filed motions on November 8, 2004. Some of
these motions (those of Fullmer and Harper to dismiss the Indictment; Fullmers severance motion and Harpers motion to suppress the search warrant) were contemplated by the Courts August 3, 2004 Order, to be filed at a later date. Moreover,
defendant Kjonaas has filed yet another motion seeking additional discovery on November 8, 2004. In short, motions are being made
in a rather scattershot manner which makes the schedule that this Court set rather superfluous. The Government will be at a
decided disadvantage if it is to respond to motions made by eight defendants whenever they deem it necessary or strategically advantageous to do so. Thus, the Government requests that prior
to any party in this action filing a motion not contemplated by
The Government doubts that these motions were filed independently of an organized time frame. - 70 -
24
Filed 11/12/04 Page 74 of 75
an existing Order of this Court, that he or she obtain leave of the Court to do so. In this manner, the Court can, in an orderly
fashion that does not impair any partys rights, control the pretrial proceedings in this case.
- 71 -
Filed 11/12/04 Page 75 of 75
CONCLUSION For the foregoing reasons, the Court should deny the defendants' motions.
Respectfully submitted, CHRISTOPHER J. CHRISTIE United States Attorney By: s/ Charles B. McKenna Charles B. McKenna Assistant U.S. Attorney s/ Ricardo Solano Jr. Ricardo Solano Jr. Assistant U.S. Attorney
Date: November 12, 2004 Newark, New Jersey
- 72 -

Govn Sent

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Govn Sent

Uploaded by

Copyright:

Available Formats

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 1 of 75

MEMORANDUM OF THE UNITED STATES IN OPPOSITION TO PRELIMINARY MOTIONS OF DEFENDANTS

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 2 of 75

TABLE OF CONTENTS Preliminary Statement . . . . . . . . . . . . . . . . . . Statement of Facts Argument I. . . . . . . . . . . . . . . . . . . . 1 2 16

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 3 of 75

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 4 of 75

its right to supplement its responses by oral argument.

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 5 of 75

United Kingdom and East Millstone, New Jersey.

residence at 101 Home Street in Somerset, New Jersey.

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 6 of 75

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 7 of 75

SHAC website and when those postings were made.

targeted individuals and companies for the purpose of causing the

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 8 of 75

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 9 of 75

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 10 of 75

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 11 of 75

driveway and a second car was vandalized.

destruction of HLS. -8-

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 12 of 75

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 13 of 75

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 14 of 75

groups dressed in menacing garb.

These individuals, and the

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 15 of 75

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 16 of 75

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 17 of 75

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 18 of 75

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 19 of 75

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 20 of 75

Court lacks the authority to issue, an advisory opinion.

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 21 of 75

For the reasons discussed in the Governments

Notwithstanding defendant Kjonaass conclusory

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 22 of 75

Simply put, speech that is intended to

Case 3:04-cr-00373-AET Document 48

Filed 11/12/04 Page 23 of 75

Kjonaas Mem. at 19-20.

Contrary to Kjonaass suggestion,