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UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
UNITED STATES OF AMERICA

:
:
v.
:
:
GABRIELA RAURELL-GOMEZ
:
and MARISELA ARREAZA
:
_______________________________:

Case No. 16-20477-CR-SCOLA

DEFENDANTS JOINT MOTION TO DISMISS


THE SUPERSEDING INDICTMENT BASED ON THE
GOVERNMENTS DELIBERATE INVASION OF THE DEFENSE CAMP
Defendants

GABRIELA

RAURELL-GOMEZ

and

MARISELA

ARREAZA, through counsel, and pursuant to the Fourth, Fifth and Sixth
Amendments to the Constitution, respectfully move this Court for an Order
dismissing the Superseding Indictment. Defendants request an evidentiary hearing
on this motion. Moreover, as argued below, Defendants request such other and
further relief that may be warranted under the circumstances. In support of this
motion, Defendants state:
INTRODUCTION
On October 3, 2016, only six weeks prior to the scheduled trial date, the
government executed a post-indictment search warrant at a location that the
prosecution team knew was being used exclusively by the defense team as a

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satellite law office or litigation war room for trial preparation. Even after defense
counsel cautioned the prosecutor that she was jeopardizing the integrity of the
prosecution by invading the defense camp, she nevertheless directed government
agents to proceed onward. Refusing to provide the defendants or their attorneys a
copy of the warrant, agents entered the space, seized and boxed up documents and
electronic data that the defense team had itself generated and was reviewing and
using to prepare for trial. In effect, the post-indictment search stripped the defense
naked and paralyzed a significant component of the defense.
Perhaps more troubling, government agents became exposed to substantial
defense work product, including records that revealed defense strategies.
Government agents observed which documents were deemed relevant by defense
counsel and consultants. Government agents observed how the defense was
preparing for trial. The governments decision to utilize a search warrant to
circumvent discovery and trial procedures contemplated by the rules of criminal
procedure see, e.g., Rules 16 and 17, Fed. R. Crim. P. resulted in a quagmire of
its own creation.
This unprecedented post-indictment invasion of the defense camp, which has
disrupted trial preparation and given the government access to insider information
about defense strategy, warrants dismissal of the Superseding Indictment.

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Alternatively, the Court should, at a minimum, a) suppress and order the return of
all records seized; b) disqualify the prosecution team from further participation in
this case; c) prohibit the governments review of any materials until a procedure
for determining privilege is established; and d) order other and further relief that
may be appropriate after an evidentiary hearing.
FACTUAL BACKGROUND
Since November 2006, defendants Raurell-Gomez and Arreaza operated
D&D Psych, Inc. (D&D), a licensed business in Miami-Dade County, providing
psychiatric services to patients, including Medicaid beneficiaries. Ms. RaurellGomez holds a Masters Degree in Mental Health Counseling from Nova
Southeastern University, which she earned in 1996. Ms. Arreaza earned her
Masters Degree from Memphis State University in 1979.
In November and December 2014, prior to the return of the indictment,
Inspector Julie McNichols and Investigator Pedro Pidermann of the State of
Florida Medicaid Fraud Control Unit visited the offices of D&D on multiple
occasions to request certain patient files for inspection. D&D complied and
provided 88 patient files, as requested. See Exh. 1 (Receipts signed by Inv.
Pidermann) (redacted to protect patient confidentiality).
Twenty months later, on June 16, 2016, the grand jury indicted the two

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defendants on one count of conspiracy to pay health care kickbacks, in violation of


18 U.S.C. 371 and two substantive counts of payment of kickbacks, in violation
of 42 U.S.C. 1320a-7b(b)(2)(A), in connection with their operation of D&D. The
Indictment alleged that the conspiracy lasted until December 2014; the substantive
offenses alleged that kickback payments occurred on June 4, 2012, and August 1,
2013. Inspector McNichols and Investigator Pidermann were investigating agents
assigned to the prosecution team, which was spearheaded by DOJ prosecutor
Katherine Payerle of the Fraud Section of the Department of Justice.
In early July 2016, in the wake of the Indictment, the defendants closed the
clinical operations of D&D and, at the direction of undersigned counsel, converted
the premises into a satellite law office, a so-called litigation war room, where
defense attorneys, experts and investigators could work together to prepare for
trial. The satellite law office consisted of approximately six rooms and a reception
area. It maintained the business records of D&D e.g., patient files, supervisors
reviews of therapists work, and financial records as well as materials prepared
solely for the defense in this case.
Over the course of the next three months, the defense team worked in that
satellite law office on a daily basis. The defense team was comprised of, at times,
up to as many as 12 people, including counsel, the defendants, an expert/consultant

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hired by counsel, an investigator, and former D&D staff members who had been
retained to work as paralegals to assist counsel in organizing records needed to
adequately prepare for trial. The satellite law office was used to segregate and
review thousands of documents and to create spreadsheets of relevant information.
During this process, post-it notes with handwritten comments were placed on some
of the documents. Other defense work product was stored on thumb drives and on
computers at the premises. The satellite law office contained a dry-erase board
(approximately 2 feet by 3 feet), listing different projects that the defense team was
working on. In addition to D&Ds records and legal defense projects, the satellite
law office contained discovery produced by the government with notations made
by either defense counsel or the defendants.
Months before the October 3 search, defense counsel had informed DOJ
prosecutor Payerle that the premises occupied by D&D were operating exclusively
as a satellite law office. As recently as August 26, 2016, while discussing a
modification to defendant Arreazas bond conditions, defense attorney ArteagaGomez reminded Payerle that she was working with the defendants at the satellite
law office on an almost daily basis. And in a September 7, 2016 email to all
defense counsel, DOJ prosecutor Payerle acknowledged that defense counsel had
notified her that certain D&D Psych employees have become part of a defense

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team working under [defense counsels] supervision[.] See Exh. 2 (Sept. 7 email
from Payerle to defense counsel). Among the former D&D employees identified
by defense counsel as working on the defense team were Lisa Perez and Marlene
Hernandez.
On Tuesday, September 27, 2016, the government filed several sealed
documents in the court file, ex parte, i.e., without copying the defense. Then on
Friday, September 30, 2016, Payerle emailed defense counsel to schedule a
conference call for Monday morning October 3, 2016 (the first day of the Jewish
High Holiday, Rosh Hashana). Defense counsel requested that the call be
scheduled for that same day (Friday, September 30) because of defense counsels
limited availability on Monday (October 3). Defense counsel assumed that the
purpose of the call was to announce that a superseding indictment had been
returned, as the docket sheet reflected the September 27 sealed entries and several
unidentified, sealed co-defendants added to the roster of parties. Payerle claimed
that she was not available that same day (Friday) and set the call for Monday at
9:15 a.m.
On that Monday morning October 3, Payerle emailed counsel to advise that
she would be delayed in joining the call. At approximately 9:30am, she joined the
call and informed defense counsel Howard Srebnick, Alan Ross, and Rossana

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Arteaga-Gomez that law enforcement agents were at the former offices of D&D
about to begin executing a search warrant. Payerle also informed defense counsel
that a taint attorney, Richard Powers, would be the attorney overseeing the
execution of the search warrant and that FBI agent Clint Warren would be the lead
taint agent on site handling the execution of the search warrant.
Defense attorney Srebnick reminded Payerle that D&Ds former offices
were now functioning as a satellite law office. Srebnick suggested to Payerle that,
with a warrant, she could secure the area and exclude everyone from the
premises to prevent any risk of spoliation of the items sought, but that the
government should not seize anything until the parties agreed upon a procedure,
given the attorney-client and work-product issues at stake. Srebnick specifically
cited United States v. Salo Shapiro, Case No. 14-Cr-20715-MGC another case
prosecuted by the Fraud Section of the Department of Justice to alert her that the
government was inviting litigation by executing a search warrant in a space
functioning as a law office preparing for trial. Payerle declined to delay the
execution of the warrant. Srebnick then insisted that no one from the prosecution
team enter the premises and that attorney Arteaga-Gomez would drive to D&D
immediately. Srebnick and Ross were not available on that day. Srebnick requested
that the agents not touch any of the records until attorney Arteaga-Gomez arrived,

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so that, at a minimum, she could photograph the space before agents began
rummaging through documents and so that Arteaga-Gomez could identify for the
taint agents those items that could not conceivably fall within the scope of the
warrant e.g., attorney-created documents. Srebnick promptly followed up his
conversation with Payerle with an email:
[R]ichard, Kate
[T]he search of the space previously used by [D&D] is the functional
equivalent of searching a law office, because that space has been used
exclusively for the last many weeks as a trial preparation space.
[D&D] ceased operating many weeks ago, as we informed you
previously.
I insist that no one from the prosecution team participate in the search
or seizure of that space. I have asked Richard Powers to have the
space photographed, prior to anything being taken from the space.
[Rossana] is on her way there along with our private investigator in
order to photograph the space as well.
See Exh. 3 (Oct. 3, 2016 email at 10:24am from Srebnick to Payerle and Powers).
In response, Payerle wrote back, instructing that all further communication should
be directed exclusively to taint prosecutor Powers. Id.
While driving to the satellite law office, attorney Arteaga-Gomez called
Agent Warren and asked him whether all of the agents involved in executing the
search warrant were taint agents, i.e., not involved in the prosecution of the case.
Agent Warren stated that no case agents were on scene. Upon arriving at the

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satellite law office, defense attorney Arteaga-Gomez learned that agents had
already begun seizing items from the premises. Attorney Arteaga-Gomez asked
Agent Warren and taint prosecutor Powers to provide her a copy of the search
warrant and the supporting affidavit, which they refused to do.1
Agent Warren stated again, in-person, that all of the agents on the scene
were taint agents. Defense attorney Arteaga-Gomez requested from Agent
Warren a list of the names, phone numbers, and email addresses of all of the agents
executing the search warrant. Agent Warren told Arteaga-Gomez that he would
provide a list of who participated in the search warrant after it was executed.
Arteaga-Gomez then emailed taint prosecutor Powers requesting that Powers ask
Agent Warren to circulate a legal pad and have all of the agents write down their
names, phone numbers and email addresses. See Exh. 4 (Oct. 3, 2016 email at
11:25am from Arteaga-Gomez to Powers). Powers responded that the government
would keep a record of who participated in the execution of the search warrant. Id.
After arriving, Arteaga-Gomez learned that four agents, without advance
notice to the defense, had interrogated Lisa Perez and Marlene Hernandez during

More than one week later, the government provided the defense with the first
page of the search warrant, without the attachment describing the items to be seized or
the affidavit in support of the warrant. After repeated requests, on October 19, 2016 the
government finally produced the search warrant, its attachments and the supporting
affidavit, none of which disclosed to the issuing magistrate that the subject location
was functioning as a satellite law office. More about that later.
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the hour or so that Arteaga-Gomez was driving to the satellite law office. Perez and
Hernandez are two of the former D&D staff members whose names were provided
to DOJ prosecutor Payerle so that she would know that they were employed as part
of the defense team after D&D ceased operations. Attorney Arteaga-Gomez told
Agent Warren and taint prosecutor Powers that the four agents who had
interviewed Perez and Hernandez should be excluded from any further
involvement in the search, as they had assumed the role of investigating agents, not
merely taint agents executing a warrant. See Exh. 5 (Oct. 3, 2016 email at 11:14am
from Arteaga-Gomez to Powers). Powers agreed to remove those agents from the
premises.
Arteaga-Gomez also learned later that day that Inspector McNichols and
Investigator Pidermann the two agents who first obtained the 88 patient files in
November 2014 were participating in the execution of the search warrant. Here is
how: During the course of the search, one of the D&D employees on scene notified
defense attorney Arteaga-Gomez that she recognized two of the law enforcement
agents participating in the execution of the search warrant because they were the
same law enforcement agents who had requested the 88 patient files back in 2014.
Arteaga-Gomez approached the female agent and asked for her name. The female
agent refused to identify herself to Arteaga-Gomez, who then approached the male

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agent; he did provide Arteaga-Gomez with his business card, which identified him
as Investigator Pidermann. Ms. Arteaga Gomez has since confirmed with the D&D
employee that the female agent who refused to identify herself was, in fact,
Inspector McNichols.
Having learned that investigating agents were involved in the execution of
the search warrant, attorney Arteaga-Gomez confronted Agent Warren about his
earlier assurance that all agents on scene were taint agents. Defense attorney
Arteaga-Gomez reminded Agent Warren that she had been cautioning him all
morning as to what records were privileged and, in many instances, providing him
details as to why the records were privileged, only to later learn that investigating
agents had been within earshot of their conversations the entire morning. Agent
Warren acknowledged that he had not been responsible for putting together the
search team. Agent Warren then called taint prosecutor Powers so that defense
attorney Arteaga-Gomez could explain to Powers that at least two case agents had
participated in the execution of the search warrant. Nevertheless, Inspector
McNichols and Investigator Pidermann remained on scene after defense attorney
Arteaga-Gomez spoke with Powers.
Agents spent the better part of 12 hours at the satellite law office conducting
the search and seizure. During that time, investigating agents involved in this

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prosecution were exposed to defense work product, such as the list of defense
projects on the dry-erase board and post-it notes on records, even if some of those
items were not physically seized. Moreover, in connection with the search, the
agents actually seized hard documents, computers and electronic data (e.g., thumb
drives) which undoubtedly contain work product and, by virtue of how/where they
were stored in the satellite law office, also reflect work product the mental
processes of defense counsel and consultants preparing for trial. The agents boxed
up the items seized and transported them to a Miramar warehouse used by the
government for health care fraud cases.
On the day after the search, attorney Srebnick emailed taint prosecutor
Powers to inform him that the defense would be filing a motion objecting to the
search and seizure and requested that no one on the prosecution team be given
access to the records. See Exh. 6 (Oct. 4 email at 9:13pm from Srebnick to
Powers). Powers agreed to wait until the Court rules on this motion before he
allows anyone on the prosecution team access to the seized items. Id.
That same day, defense Arteaga-Gomez emailed taint prosecutor Powers
requesting access to the items that had been seized. The following day, Powers
responded that the warehouse where the boxes were being stored would be closed
for several days due to Hurricane Matthew.

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On October 10, 2016, attorney Arteaga-Gomez once again requested access


to the seized items, a copy of the search warrant and supporting affidavit, and the
list of agents present during the execution of the search warrant. See Exh. 7 (Oct.
10-11 email string between Arteaga-Gomez and Powers). On October 11, 2016,
Powers responded that he would provide a copy of the search warrant, but not the
supporting affidavit nor the list of agents who executed the search warrant. Id.
Powers also responded that the records could be made available to the defense on
October 12, 2016. Id. In the same email, he asked attorney Arteaga-Gomezs input
regarding what he described as her two options for reviewing the records: (1)
Arteaga-Gomez could identify what specific boxes she wanted the agents to move
to the warehouses conference room, or (2) all the boxes could be moved to the
conference room for as long as Arteaga-Gomez would be coming out to review the
materials. Id. Powers cautioned:
My concern with option 2, however, is that we cannot limit access to
the conference room in the same way that we can with the warehouse.
So if we go with option 2, Id like your assurance that you will not
argue later that members of the prosecution team couldve had access
to potentially privileged material in the unsecured conference room
before there was a decision on the issue of any applicable privilege.
Id.
Attorney Arteaga-Gomez then informed Powers that boxes containing work
product were already in what Powers himself had described as the unsecured

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conference room. Id. Arteaga-Gomez had visited the warehouse on a different


matter the day after the search warrant was executed at the satellite law office.
While at the warehouse, Arteaga-Gomez had seen many of the seized boxes inside
the conference room. Thus, Arteaga-Gomez asked Powers to keep the boxes in the
conference room, instruct the prosecution team to stay out of the conference room,
and allow her to go to the warehouse the following day to photograph the boxes.
Id. Powers declined to allow Arteaga-Gomez to go to the warehouse to photograph
the boxes even after she made it clear that she would photograph only the boxes,
not the facility. Id. Additionally, after Arteaga-Gomez pointed out that boxes were
already in the unsecured conference room, Powers informed Arteaga-Gomez that
agents would not be available until October 14, 2016 to give her access to the
boxes. Id.
Meanwhile, on October 18, 2016, the court unsealed a six-count Superseding
Indictment, which had been returned on September 27, 2016, the week before the
execution of the search warrant. The Superseding Indictment charges defendants
Raurell-Gomez and Arreaza in three additional counts: a count of conspiracy to
commit health care and wire fraud, in violation of 18 U.S.C. 1349 and two
additional substantive counts of payment of kickbacks. The Superseding
Indictment adds four co-defendants, none of whom were part of the defense team

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working on trial preparation.


And on October 19, 2016 the government provided defense counsel with a
complete copy of the search warrant and the supporting affidavit. Exh. 8 (Affidavit
in support of the search warrant). The search warrant was signed by U.S Magistrate
Judge Patrick White on September 26, 2016 but remained under seal. Although the
affidavit in support of the warrant indicates, in a footnote, that the defendants had
been indicted on June 16, 2016, it failed to notify U.S. Magistrate Judge White that
the indictment had been unsealed, that the defendants had been arrested, that the
case had been assigned to U.S. District Judge Robert Scola, that Judge Scola had
set the case for trial on November 14, 2016, and that the defendants were
represented by counsel, who had alerted the government that the subject location
of the search was functioning as a satellite law office. Instead, the affidavit
suggests that the subject location was still functioning as a medical facility,
alleging that employees remained on staff to continue working at D&D Psych to
wind down the business, and that D&D Psych continues to be an active
corporation.

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MEMORANDUM OF LAW
A.

The Court Should Dismiss the Indictment for Invasion of the


Defense Camp and Circumvention of the Rules of Procedure

The government invaded the defense camp, severely disrupted defense trial
preparations, and circumvented the rules of criminal procedure by executing a
post-indictment search warrant at a location that the government was explicitly told
was functioning as a satellite law office. The search and seizure were unreasonable
under the Fourth Amendment, violated the defendants due process rights under
the Fifth Amendment, and interfered with the effective assistance of counsel and
right to a speedy trial guaranteed by the Sixth Amendment. The Superseding
Indictment should be dismissed.
To the extent the government utilized a search warrant to obtain documents
for use in its case-in-chief on the pending Indictment, the government
circumvented the discovery procedures set forth in Rule 16 and trial subpoena
procedure set forth in Rule 17, both of which are contained within Chapter IV of
the Federal Rules of Criminal Procedure entitled Arraignment and Preparation
for Trial. Rule 16(b)(1)(A) requires the defendant to produce, upon request, only
those documents within the defendants possession, custody, or control that the
defendant intends to use in her case-in-chief at trial. Nothing in that rule requires
the defendant to make available for the government additional documents that the

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government wishes to use in its case-in-chief. Moreover, nothing in Rule 16


authorizes the government, post-indictment, to simply seize evidence from
defense counsel for use in the governments case-in-chief. To the extent the
government seeks to offer documents at trial that it failed to obtain pre-indictment
by consent, grand jury subpoenas, or search warrants, the government was bound
to avail itself of Rule 17(c), provided, of course, that it could satisfy the standards
for relevance, admissibility, and specificity set forth in United States v. Nixon,
418 U.S. 683, 699-700 (1974).
The fact that Federal Rule of Criminal Procedure 41, which authorizes the
issuance of search warrants, is also contained within the rules of criminal
procedure, does not mean that it may be used to circumvent the discovery and
trial process. That rule is encompassed within Chapter VIII, entitled
Supplementary and Special Proceedings, and does not govern the discovery or
trial process. Just as the government is not permitted to use the grand jury
convened under Federal Rule of Criminal Procedure 6 to assist it in preparing an
already pending indictment for trial, see Beverly v. United States, 468 F.2d 732,
743 (5th Cir. 1972), the government should not be permitted to utilize the search
and seizure provisions of Rule 41 to circumvent the rules for discovery and

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obtaining documents for use at trial. The Court should suppress all of the records
unlawfully seized from D&Ds office.2
To be sure, the prosecution could have attempted to avail itself of the
subpoena power granted by Rule 17. 3 Had D&D received a subpoena, it could
have lodged its objections with the district judge. To the extent that the district
judge determined that the government had met the criteria for production under
Rule 17, it could have ordered D&D to produce the subpoenaed documents (or
risk being held in contempt). In that way, the production of those records could
have been achieved in an orderly fashion, with minimal disruption to the defense
preparation and without intruding upon the attorney-client or work product
privileges. After all, the defendants had been indicted almost four months earlier;
their counsel had maintained and were reviewing D&Ds records to prepare for a
2

Moreover, Rule 41 requires that the officer executing the search warrant provide
a copy of the warrant to the person who owns the property being seized. See Fed. R.
Crim. P. 41(f)(1)(C) (The officer executing the warrant must give a copy of the warrant
and a receipt for the property taken to the person from whom, or from whose premises,
the property was taken or leave a copy of the warrant and receipt at the place where the
officer took the property.). Thus, on the day the search warrant was executed, Agent
Warren should have provided a copy of the search warrant to defense attorney ArteagaGomez as she was a legal representative of one of the owners of D&D.
3

To the extent that the government claims the search was in furtherance of a
separate criminal investigation, the government could have issued a grand jury subpoena
for the documents it sought, which would have afforded an opportunity for the defense to
lodge objections with the district judge. The defendants had already complied with
previous requests for patient files and there was no basis whatsoever to believe that the
defendants would not have complied with a grand jury subpoena.
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November 2016 trial. There was no credible concern that anyone intended to
compromise the records in any way, especially given that D&D had previously
produced 88 patient files upon request. The prosecutions actions in
circumventing the federal rules of criminal procedure to seize from defense
counsel papers they are working with to prepare for trial was totally unnecessary
particularly once the government had secured the premises of the satellite law
office on the morning of October 3, 2016, thus eliminating any risk of spoliation.
There was no need to grab all of the documents, disrupt defense counsels
preparation (by boxing up all the records thus effectively reshuffling the deck of
documents) and expose members of the prosecution team to the work product of
the defense team.
Government intrusion into materials protected by the attorney-client
privilege and attorney work product threatens the very foundation of our legal
system. Our adversarial system of justice cannot function properly unless an
attorney is given a zone of privacy within which to prepare the clients case and
plan strategy, without undue interference. In re San Juan DuPont Plaza Fire
Litigation, 859 F.2d 1007, 1014 (1st Cir. 1988). The attorney-client privilege is the
oldest of the privileges for confidential communications known to the common
law, Upjohn v. United States, 449 U.S. 383, 389 (1981), dating back 500 years

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and arising as an exception to testimonial compulsion. 8 J. Wigmore, On Evidence,


2290 (McNaughton rev. ed. 1961). This privilege has been broadly construed in
our jurisprudence to encourage a client to make full disclosure to his attorney so
that the attorney may act justly and expeditiously on the clients behalf. Upjohn,
449 U.S. at 389; Fisher v. United States, 425 U.S. 391, 403 (1976). The purpose of
the privilege is to encourage full and frank communication between attorneys and
their clients and thereby promote broader public interest in the observance of law
and administration of justice without apprehension of subsequent disclosure.
Upjohn, 449 U.S. at 389. [A] communication between an attorney and his client
that is protected by the common law attorney-client privileged is also protected
from government intrusion by the sixth amendment. United States v. Noriega, 917
F.2d 1543, 1551 n.9 (11th Cir. 1990) (quoting United States v. Blasco, 702 F.2d
1315, 1329 (11th Cir. 1983)).
The attorney work product doctrine is equally critical to our system of
justice. In first recognizing that privilege nearly seventy years ago, the Supreme
Court stated:
In performing his various duties . . . it is essential that a lawyer work
with a certain degree of privacy, free from unnecessary intrusion by
opposing parties and their counsel. Proper preparation of a clients
case demands that he assemble information, sift what he considers to
be the relevant from the irrelevant facts, prepare his legal theories and
plan his strategy without undue and needless interference. . . . Were

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such materials open to opposing counsel on mere demand, much of


what is now put down in writing would remain unwritten. . . . The
effect on the legal profession would be demoralizing. And the
interests of the clients and the cause of justice would be poorly served.
Hickman v. Taylor, 329 U.S. 495, 510-11 (1947); see e.g., also Upjohn Co., 449
U.S. at 397-99. And specifically with respect to the representation of criminal
defendants, the Supreme Court has stated:
Although the work-product doctrine most frequently is asserted as a
bar to discovery in civil litigation, its role in assuring the proper
function of the criminal justice system is even more vital. The
interests of society and the accused in obtaining a fair and accurate
resolution of the question of guilt or innocence demand that adequate
safeguards assure the thorough preparation and presentation of each
side of the case.
United States v. Nobles, 422 U.S. 225, 238 (1975). The work product privilege
belongs to both attorney and client. See In re Sealed Case, 676 F.2d 793, 812 n.75
(D.C. Cir. 1982).
A defense attorneys selection and compilation of documents in preparation
for trial constitutes work product. United States v. Horn, 811 F. Supp. 739, 746
(D.N.H. 1992); see also United States v. June, 10-30021, 2011 WL 5330788,
at *2 (D. Mass Oct. 19, 2011). Courts have concluded that the selection
process itself reveals counsels mental impressions as to how evidence relates to
issues and defenses in the litigation. Horn, 811 F. Supp. at 746 (citing Sporck v.
Peil, 759 F.2d 312, 315 (3d Cir. 1985). The Horn court found that in a criminal

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proceeding where important constitutional rights of due process under the Fifth
Amendment and effective assistance of counsel under the Sixth Amendment
are at stake, along with the liberty interests of the defendant[], this work
product deserves special protection. Id. at 747 (citing Nobles, 422 U.S. at 238).
For that reason, the government is forbidden from eavesdropping or planting
agents to hear or disrupt councils of the defense. See, e.g., United States v. Henry,
447 U.S. 264 (1980); Black v. United States, 385 U.S. 26 (1966); see also In re
Terkeltoub, 256 F. Supp. 683, 685 (S.D.N.Y. 1966) (The defendant has the right
to prepare in secret . . . The prosecutions secret intrusion offends both the Fifth
and Sixth Amendment.) (citations omitted).
Although the Sixth Amendment is concerned primarily with
fairness at trial, it is not limited to that function. The right to counsel
protects the whole range of the accuseds interests implicated by a
criminal prosecution.
***
Moreover, the appellants need not prove that the prosecution actually
used the information obtained. The prosecution makes a host of
discretionary and judgmental decisions in preparing its case. It
would be virtually impossible for an appellant or a court to sort out
how any particular piece of information in the possession of the
prosecution was consciously or subconsciously factored into each of
those decisions. Mere possession by the prosecution of otherwise
confidential knowledge about the defense's strategy or position is
sufficient in itself to establish detriment to the criminal
defendant.
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Such information is inherently detrimental, ... unfairly advantage[s]


the prosecution, and threaten[s] to subvert the adversary system of
criminal justice. Further, once the investigatory arm of the
government has obtained information, that information may
reasonably be assumed to have been passed on to other
governmental organs responsible for prosecution.
Such a
presumption merely reflects the normal high level of formal and
informal cooperation which exists between the two arms of the
executive.
Briggs v. Goodwin, 698 F.2d 486, 494-95 (D.C. Cir.) (quoting Weatherford v.
Bursey, 429 U.S. 545, 556 (1977)), rehg granted and opinion vacated on other
grounds, 712 F.2d 1444 (D.C. Cir. 1983).
Agent

Warren

assured

defense

attorney Arteaga-Gomez

that

no

investigating agents were present for the execution of the search warrant. Defense
attorney Arteaga-Gomez later learned through a D&D employee that, in fact, two
investigating agents were present at the satellite law office during the execution
of the search warrant. Unbeknownst to defense counsel until too late, Inspector
McNichols (who refused to identify herself) and her colleague Investigator
Pidermann were present while defense counsel discussed with Agent Warren the
reasons for objecting on privilege grounds to the seizure of certain work-product
documents, which at times entailed disclosing details of the type of work being
done by the defense.

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Obtaining defense counsels work-product to obtain a tactical advantage is


shocking to the universal sense of justice, mandated by the Due Process
Clause of the Fifth Amendment. United States v. Russell, 411 U.S. 423, 432
(1973) (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246
(1960)). It upsets the balance of forces in the courtroom. Wardius v. Oregon,
412 U.S. 470, 474 (1973). To the extent the prosecution team can infer from the
defendants review of documents in the war room their thought processes, the
government has violated their Fifth Amendment right not to be compelled to be a
witness against themselves. This intrusion into the attorney-client relationship has
also violated the defendants Sixth Amendment right to the effective assistance of
counsel. See Massiah v. United States, 377 U.S. 201, 106 (1964) (finding a Sixth
Amendment violation where agent surreptitiously listened in on defendants
conversation after he was indicted and represented by counsel). And it has
interfered with the defendants right to a speedy trial.
Here, the intrusion was no accident. The decision to invade the defense
camp and disrupt trial preparation was deliberate. Dismissal with prejudice is the
appropriate remedy. See United States v. Levy, 577 F.2d 200, 208 (3rd Cir. 1978)
(dismissing indictment, rather than merely disqualifying prosecution

team,

where government invaded the defense camp and learned defense strategies:

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The government's knowledge of any part of the defense strategy might


benefit the government in its further investigation of the case, in the subtle
process of pretrial discussion with potential witnesses, in the selection of
jurors, or in the dynamics of trial itself. . . The government's knowledge of this
planned strategy would permit it not only to anticipate and counter such an
attack on its witnesses credibility, but also to select jurors who would be more
receptive. . . .).
Alternatively, this Court should disqualify the entire prosecution team from
any further participation in the prosecution of the defendants. The intrusion by
any member of the prosecution team taints them all no different than when a
conflict of interest of one lawyer in a law firm disqualifies the entire law firm
from representation. See Freund v. Butterworth, 165 F.3d 839, 863 (11th Cir.
1999) ([A]ny conflict of interest attributable to Colton imputes equally to his
current partners and employees.) (citing Cox v. American Cast Iron Pipe Co.,
847 F.2d 725, 729 (11th Cir. 1988)); see also Rule Regulating Fla. Bar 41.10(a)
(While lawyers are associated in a firm, none of them shall knowingly represent
a client when any 1 of them practicing alone would be prohibited from doing
so[.]).

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At a minimum, given the facts set forth above, this Court should hold a
hearing to determine the extent to which the prosecution team has invaded the
defense camp by executing the search warrant. A hearing would identify which
investigating agents had access to or learned of the defenses work-product and
would require that the government bear the burden of proving that it has not, nor
will it, make any direct or derivative use of any illegally obtained workproduct. See generally Kastigar v. United States, 406 U.S. 441 (1972).
B.

Procedure for Return of Privileged Materials

Rule 41(g) of the Federal Rules of Criminal Procedure provides that a


person aggrieved by an unlawful search and seizure of property or by the
deprivation of property may move for the propertys return . . . in the district
where the property was seized. The defendants have a constitutional right to be
free from an unreasonable search and seizure. A seizure of legal materials being
prepared in anticipation of a trial in a criminal case scheduled to begin in six weeks
is unreasonable; it violates the Fourth, Fifth and Sixth Amendments to the
Constitution.4
The government cannot seriously argue that it is entitled to retain or review
4

Inasmuch as the defendants were provided with a complete copy of the warrant
just this week, despite having requested it repeatedly during and since the execution of
the search warrant, the defendants need additional time to raise other challenges to the
search, such as overbreadth of the warrant and the manner of execution.
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documents, time lines, spreadsheets, and hand-written notes, and the like, that were
prepared by the defense team, including nurse consultants, in connection with the
trial preparation in this case. Those documents cannot legitimately be within the
scope of the search warrant and should be returned forthwith under Rule 41.
The relevant question is how should privileged documents be identified.
The government proposes to have a taint team of federal prosecutors and agents
conduct the review of hard documents and electronic data to segregate the
privileged documents from the non-privileged. The defendants object to such a
procedure and request that all of the seized documents be returned forthwith and
that the government be forced to proceed by trial subpoena under Rule 17. In the
alternative, the defendants request the appointment of a neutral third party to
conduct the privilege review.
The Sixth Circuit best described the obvious flaw in the taint team
procedure: the governments fox is left in charge of the appellants henhouse, and
may err by neglect or malice, as well as by honest differences of opinion. In re
Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006) (noting past breach of a
taint wall that occurred in United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla.
1991)). For that reason, courts have routinely appointed third parties to conduct a
privilege review under similar circumstances. See, e.g., United States v. Kaplan,

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No. 02 CR. 883, 2003 WL 22880914, at *11 (S.D.N.Y. Dec. 5, 2003)


(disapproving governments use of taint team to conduct privilege review where it
appear[ed] that the FBI case agent was given access to review materials from
seized files even before it was determined whether or not the crime/fraud exception
applied, which eviscerate[d] any claim that an ethical wall team within the
Government effectively screens the prosecution team from privileged materials).
Multiple courts have recognized that a taint team review is not appropriate
when the government seeks to search an attorneys files:
Courts exhibit particular concern over use of filter agents or taint
teams in searches of lawyers' offices, where privileged materials of
many clients could be compromised. There, judges have sometimes
required alternatives such as appointment of a special master, a
wholly independent third party.
United States v. Taylor, No. 10-86-P-H, 2011 WL 474738, at *2 (D. Me. Feb. 9,
2011) (emphasis added). When the government seeks to search an attorneys files,
the privilege review should be conducted by the Court or a special master, not a
government taint team. Kaplan, 2003 WL 22880914, at *12 (in case involving
search warrant executed on law office, court commented that [c]ertainly this
Opinion should be counted among those disapproving the Government's use of an
ethical wall team to protect the attorney-client and work-product privileges or to
determine whether the crime-fraud exception applies, where potentially privileged

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materials are turned over to the trial team and case agents before any challenge to
those determinations can be raised by a Defendant and determined by a court)
(emphasis in original); United States v. Stewart, No. 02 CR. 396 JGK, 2002 WL
1300059, at *7 (S.D.N.Y. June 11, 2002) (court appointed special master to
conduct privilege review of documents seized from law office over governments
request for a taint team review where attorney was willing to produce a privilege
log to expedite special masters review, and there was no indication that attorney
sought appointment of special master for purposes of delay); United States v.
Abbell, 914 F. Supp. 519, 519-22 (S.D. Fla. 1995) (in case involving search of law
office, court found that privilege issues raised in these proceedings are
exceptional and warrant referral to a Special Master, and set forth detailed
procedures for such review); In re Search Warrant for Law Offices Executed on
March 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y. 1994) (in case involving search
warrant executed on law office, court disapproved of use of taint team because
reliance on the implementation of a Chinese Wall, especially in the context of a
criminal prosecution, is highly questionable, and should be discouraged. The
appearance of Justice must be served, as well as the interests of Justice. It is a great
leap of faith to expect that members of the general public would believe any such
Chinese wall would be impenetrable; this notwithstanding our own trust in the

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honor of an AUSA); Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 962
(3d Cir. 1984) (in case involving search of law office, in order to vindicate both
the interests of the government in investigating and prosecuting crimes and the
confidentiality interests of the law firm, court ordered that any effort by
government to obtain documents from law firm was to be overseen by the district
court or a special master).
In fact, because of the inherent risks associated with putting a privilege
review in the hands of a government taint team, numerous courts have ordered that
privilege reviews be conducted by a neutral third party even when the government
seeks to search the legal files of a client rather than the attorney. See United States
v. Jackson, No. 07-0035 (RWR), 2007 WL 3230140, at *5 (D.D.C. Oct. 30, 2007)
(court appointed magistrate to conduct privilege review of non-attorneys e-mails
and text messages over governments request for a taint team review where the
defendant promptly challenged legality of search, and an independent privilege
review gave a stronger appearance of fairness); In re Grand Jury Subpoenas, 454
F.3d at 523 (ordering district court to employ a special master to perform privilege
review of documents to be produced by non-attorney in response to grand jury
subpoena where taint teams present inevitable, and reasonably foreseeable, risks
to privilege, for they have been implicated in the past in leaks of confidential

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information to prosecutors); In re the Seizure of all Funds on Deposit in Accts. in


the names of Natl Elecs., Inc., No. M-18-65 (HB), 2005 WL 2174052, at *3
(S.D.N.Y. Sept. 6, 2005) (court denied governments request for taint team review
of documents seized from corporate office and conducted privilege review itself
where court agree[d] that reliance on review by a wall Assistant in the context
of a criminal prosecution should be avoided when possible); Black v. United
States, 172 F.R.D. 511, 516 (S.D. Fla. 1997) (court denied governments request
for taint team review of contents of non-attorney criminal defendants computers
and conducted review itself in light of defense counsels serious concern that
disclosure to taint team prosecutors would not protect the confidentiality and
privacy interests they here assert).
There is no compelling reason to divert from the well-supported practice of
putting the privilege review in the hands of a neutral third-party. This is especially
so where, as here, the participation of the investigating agents in the search
demonstrates that the government, from the outset, failed to follow its own claimed
taint team procedure. The neutral third party would be required to determine
whether any documents were compiled and prepared in connection with this case.
Government taint agents are not in a better position to make that determination.
Nor are the seized materials too voluminous for a neutral third party to review.

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Courts have rejected government requests for taint teams in cases involving
equally, or more, voluminous materials. See Black, 172 F.R.D. at 512 (court
ordered that it would conduct privilege review of [s]everal computers and discs
and diskettes seized from criminal defendants residence); Abbell, 914 F. Supp. at
519 (ordering that special master conduct privilege review of extensive amount
of hard copy documents and computerized data seized from law firm and its
storage facility, which included at least 27 boxes of materials); see also Stewart,
2002 WL 1300059, at *8 (ordering that special master conduct privilege review of
three boxes of documents, twenty-eight floppy disks, and five computer hard
drives seized from criminal defense attorneys law office). The confidentiality and
fairness concerns motivating these decisions are particularly relevant here since
there already is an ongoing prosecution of the defendants and the legal materials
seized involve documents prepared specifically in defense of that prosecution.
CONCLUSION
WHEREFORE,

Defendants

GABRIELA

RAURELL-GOMEZ

and

MARISELA ARREAZA respectfully move the Court for an Order dismissing the
Indictment, disqualifying the prosecution team, prohibiting the government from
reviewing any materials until a procedure for determining privilege is established,
appointing a neutral third party to conduct a privilege review, returning all

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materials to the defendants, and such other and further relief that may be
appropriate after an evidentiary hearing.
Undersigned has notified the government that defendants would be filing
this motion. The government has not consented to the relief requested.

Respectfully submitted,
BLACK, SREBNICK, KORNSPAN
& STUMPF, P.A.
201 South Biscayne Boulevard, Suite 1300
Miami, Florida 33131
Tel: (305) 371-6421
/s/ Howard Srebnick
HOWARD SREBNICK, ESQ.
E-mail: HSrebnick@RoyBlack.com
Florida Bar No. 919063
/s/ Rossana Arteaga-Gomez
ROSSANA ARTEAGA-GOMEZ, ESQ.
E-mail: RArteaga-Gomez@royblack.com
Florida Bar No. 0014932
ROSS AMSEL RABEN & NASCIMENTO, PLLC
2250 S.W. 3rd Avenue, 4th Floor
Miami, Florida 33129
Tel: (305) 858-9550
/s/ Alan S. Ross
ALAN S. ROSS, ESQ.
E-mail: alanross@crimlawfirm.com
Florida Bar No. 0220868

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 21, 2016, a copy of the foregoing
was filed via CM/ECF and served upon DOJ Trial Attorney Katherine Payerle and
Richard Powers.
/s/ Howard Srebnick
HOWARD SREBNICK, ESQ.
Florida Bar No. 919063

34