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SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA

CRIMINAL DIVISION – FELONY BRANCH

Case No. 2017 CF2 1235


UNITED STATES OF AMERICA
Chief Judge Robert E. Morin
v.

CHRISTOPHER LITCHFIELD,

Defendant.

DEFENDANT CHRISTOPHER LITCHFIELD’S APPLICATION


FOR ATTORNEYS’ FEES

Defendant Christopher Litchfield respectfully requests an award of reasonable attorneys’

fees pursuant to the Hyde Amendment. On January 20, 2017, Mr. Litchfield and most other

protesters in the DisruptJ20 anti-capitalist march peacefully walked and exercised their First

Amendment Rights in protest of the incoming presidential administration. When a handful of

individuals destroyed or defaced property, the Government indicted 212 individuals and charged

all of the protesters with the same nine counts, including felony rioting, conspiracy, and several

counts of felony property destruction.1 See Ex. 1, Superseding Indictment. Before the case could

go to trial, however, the Court found that the Government made a series of misrepresentations

about the relevant evidence in its possession, concealed multiple pieces of exculpatory evidence,

and intentionally failed to disclose evidence during discovery. As a result, the Court imposed the

rare finding of a Brady violation and even rarer, the sanction of a dismissal with prejudice of a

significant portion of the Government’s case. Since then, the Government has filed a Motion to

Reconsideration on one limited aspect of the Court’s rulings. The Government’s Reconsideration

Motion, however, does not contest the Court’s ultimate findings of Brady and Rule 16 violations

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Some Defendants were also charged with different counts of assault on a police officer. In 2018, shortly before the
case was scheduled to go to trial, the Government added more charges against Mr. Litchfield as well from the events
of January 20, 2017.
or the imposed sanction.

In light of the Government’s misconduct and the outcome of this case, Mr. Litchfield now

submits this application requesting an award of reasonable attorneys’ fees and costs under the

Hyde Amendment. See 18 U.S.C. § 3006A. The Court should grant these fees because Mr.

Litchfield is the prevailing party, the Government’s conduct was in bad faith, and no other reasons

exist to prevent an award. Notably, the Government’s pattern of deceptive and dishonest conduct

here—which violated Brady and Rule 16 and led to the imposition of a sanction by this Court—

makes clear that its position was in bad faith and justifies an award.

Since the Government has a pending motion for reconsideration, which continues to

require time and expenses by Mr. Litchfield’s attorneys, Mr. Litchfield respectfully requests, in the

interest of judicial economy, that the Court allow him to submit a final itemized amount of fees

and costs with supporting documentation within 30 days of the Court’s ruling on the

Government’s Reconsideration Motion or the completion of any related appeals or filings,

whichever is later.

I. ARGUMENT

The Court should grant reasonable attorneys’ fees to Mr. Litchfield because he falls

squarely within the class of persons for whom the Hyde Amendment seeks to provide recourse.

Congress enacted the Hyde Amendment “to allow wrongfully prosecuted criminal defendants ‘a

means to sanction the Government for prosecutorial misconduct.’” United States v. Claro, 579

F.3d 452, 456 (5th Cir. 2009) (quoting United States v. Hristov, 396 F.3d 1044, 1046 (9th Cir.

2005)). The Government’s pattern of misrepresentations about key pieces of evidence and

withholding of exculpatory evidence allowed Mr. Litchfield to be wrongly prosecuted until the

Court sanctioned the Government and dismissed the majority of charges against him, and the

Government in turn dismissed the remaining charges against Mr. Litchfield.

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Under the Hyde Amendment, a criminal defendant may recover attorneys’ fees if he is the

“prevailing party,” “the position of the United States was vexatious, frivolous, or in bad faith,” and

there are no other “special circumstances” that would make such an award unjust. Pub. L. No.

105–119, Title VI, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A, Historical

and Statutory Notes) (hereinafter “18 U.S.C. § 3006A”). Courts grant Hyde Amendment awards

under the “procedures and limitations” for Equal Access to Justice Act (“EAJA”) awards. See id.

Here, Mr. Litchfield is the “prevailing party,” the Government’s conduct was “in bad faith,” no

“special circumstances” make an award of attorneys’ fees otherwise unjust, and Mr. Litchfield has

complied with the appropriate “procedures and limitations.” Thus, the Court should award Mr.

Litchfield reasonable attorneys’ fees.

A. Mr. Litchfield Is a Prevailing Party

Mr. Litchfield is clearly a “prevailing party.” The phrase “prevailing party” is a “term of

art” in attorneys’ fee statutes referring to the “prevailing litigant.” See Astrue v. Ratliff, 560 U.S.

586, 586 (2010) (internal citation omitted). A prevailing party is a “successful party”; a party

“who has been awarded some relief by the court.” Buckhannon Bd. & Care Home v. W. Va. Dep’t

of Health & Human Res., 532 U.S. 598, 603 (2001) (citing Black’s Law Dictionary 1145 (7th ed.

1999)); see also United States v. Wade, 93 F. Supp. 2d 19, 22 (D.D.C. 2000) (“The key language

requires a successful criminal defendant to establish that the position the government took in the

prosecution was vexatious, frivolous, or in bad faith” (internal quotation marks omitted) (quoting

United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir. 1999)). Here, Mr. Litchfield is the

“prevailing litigant.” As a result of the Government’s prosecutorial misconduct, the Court

awarded him relief, dismissing six counts with prejudice and accepting the Government’s request

to dismiss the remaining counts without prejudice at the same hearing. See Ex. 2, Litchfield May

31, 2018 Tr. at 37:10-21. Thus, Mr. Litchfield is a “successful criminal defendant” and a

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“prevailing party” in this case.

B. The Government’s Position Was in Bad Faith

The Government’s position in this case was “in bad faith” as required for an award of

attorneys’ fees. A position is “in bad faith” “if it is intentionally deceptive or dishonest.” United

States v. Bove, 888 F.3d 606, 608 (2d Cir. 2018) (citing Black’s Law Dictionary and Oxford

English Dictionary). The Government’s position is also “in bad faith” when it violates its Brady

obligation. See United States v. Ranger Elec. Commc’ns, Inc., 22 F. Supp. 2d 667, 675 (W.D.

Mich. 1998), rev’d on other grounds, 210 F.2d 627 (6th Cir. 2000). Here, the Government’s

position was in “bad faith” because the Court determined that it (1) was intentionally deceptive

and dishonest about key pieces of evidence and (2) violated Brady by withholding exculpatory

evidence.

In this case, the Government did not allege that Mr. Litchfield personally committed any

acts of property destruction or violence on January 20, 2017. Instead, it alleged Mr. Litchfield

attended a planning meeting and participated in the march, and therefore knew and intended for

the anti-capitalist march to be violent. During the prosecution of its case, the Government made a

series of misrepresentations and discovery violations, concealing multiple pieces of exculpatory

evidence relating to this and other planning and organizational meetings.

Remarkably, the Government withheld and concealed for nearly 15 months a portion of the

January 8, 2017 planning meeting video (“Planning Meeting Video”), the core of the

Government’s conspiracy theory. This undisclosed portion, which the Government had secretly

edited out before producing the video to the Defendants, revealed that even a member of right-

wing provocateur group Project Veritas who ideologically opposed the DisruptJ20 organization

and surreptitiously filmed the meeting to identify the DisruptJ20 organizers, did not believe the

June 4 Trial Group Defendants knew about the “upper echelon stuff”—i.e., what violence or

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destruction was going to happen on January 20, 2017. This evidence, which was not produced to

the Defendants until five days before their original scheduled trial date, cut against the

Government’s theory of a pre-January 20 conspiracy.

Another video that the Government failed to disclose revealed that the DisruptJ20

organizers actually provided de-escalation training to those interested in attending the

Inauguration Day protests. This evidence—which the Government initially told the Court did not

exist,2 finally disclosed five days before the June 4 trial, and never even produced to the

Defendants or the Court3—not only contradicted the Government’s theory of a pre-January 20

conspiracy but also contradicted the testimony of a key Government witness. These revelations

were significant pieces of evidence that would no doubt have had a profound impact on the case

had it gone forward.

Furthermore, this evidence was only revealed because the Defendants persistently pressed

for more discovery. The June 4 Trial Group’s4 Motion to Compel led to the production of 58

minutes and four seconds of new footage from before, during, and after the originally produced

version of the Planning Meeting Video. This also led to the discovery of the exculpatory “upper

echelon” statement. As a result of these revelations, the Court found on May 23, 2018 that the

Government violated its discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963) and

Superior Court Rule of Criminal Procedure 16 by (1) withholding the exculpatory “upper echelon”

2
This de-escalation training took place at the DisruptJ20 “Action Camp.” The Government’s representations at the
April 6, 2018 hearing left the Court and the Defendants with the impression that it possessed no Action Camp videos
or any Brady material about this event.
3
The Government has not produced these videos to the June 4 Trial Group or any Defendants with pending cases
before the Court; the Government has merely acknowledged its possession of these videos. Moreover, the
Government represented to the Court at the May 31 hearing that “from this point, we’re not intending to use any sort
of video, any sort of statements elicited from any videos used by Project Veritas.” Ex. 2, Litchfield May 31, 2018 Tr.
at 10:18-20.
4
Defendants Christopher Litchfield, Matthew Hessler, Daniel Meltzer, Dylan Petrohilos, Clay/Caly Retherford, and
Caroline Unger (“June 4 Trial Group”).

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statement from its initial production of the Planning Meeting Video and (2) failing to identify the

clip in its subsequent Court-ordered production of the Planning Meeting Video. See Ex. 3,

Litchfield May 23, 2018 Tr. at 74:24 – 75:2, 75:10-15. As the Court held, when the Government

finally produced the video, it insufficiently disclosed the Brady material because it “should have

been turned over to the defense” “with some clarity, not under the cloud that we are going to give

you a redacted portion of the video and all it shows is a particular thing and, in fact, there’s

additional information.” Ex. 3, Litchfield May 23, 2018 Tr. at 75:1-2, 75:10-15. The Court in turn

suggested the Government make the videographer who made the statement available for interview.

At this interview, one week before trial, the Defendants received helpful information. The

defendants from the May 29 Trial Group5 then shared this information with the Court. When the

Court learned that Project Veritas likely coordinated with law enforcement and provided many

recordings of infiltrated DisruptJ20 planning meetings, it requested an “accounting” from the

Government about all Project Veritas recordings in its possession. Five days before the June 4

trial, this chain of events finally culminated in the revelation that the Government possessed an

additional 69 undisclosed recordings.

On May 31, 2018, the Court finalized its findings on this Brady issue. See Ex. 2, Litchfield

May 31, 2018 Tr. at 15:21 – 16:11. The Court held that, despite many opportunities, the

Government ultimately “offered no explanation as to why it did not appraise the Court of the

existence of these additional videos.” Id. at 36:2-4; see also id. at 11:3-18, 32:19-21. The Court

further found that the Government made a “serious violation” and intentionally failed to disclose

the additional 69 recordings. See id. at 36:5-24. Specifically, the Court held:

And the Court’s memory and the reading of the transcript is, the Government left
the Court and the parties with the distinct impression that there were no additional

5
Defendants Arturo Vasquez, Phillip Glaser, Christian Valencia, and Molly Carter (“May 29 Trial Group”).

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videos other than what had been previously disclosed. . . . I do think it’s a serious
violation. It was intentional in the sense that the Government made intentional
decisions that it made not to disclose.

Id. Accordingly, the Court sanctioned the Government for making this series of

misrepresentations about its possession and editing of relevant evidence and intentional decisions

not to produce much of this evidence to the Defendants. The Court dismissed six counts with

prejudice for failing to turn over the trove of recordings. Id. at 37:10-14.

In sum, as this Court has already found, the Government was intentionally deceptive and

dishonest and violated Brady. Its position therefore was “in bad faith” and Mr. Litchfield is

entitled to attorneys’ fees and costs under the Hyde Amendment. Mr. Litchfield hereby adopts and

incorporates his July 23, 2018 Opposition to Government’s Reconsideration Motion, which

provides a more detailed description of the Government’s misconduct in this case. See Ex. 4,

Opposition to Government’s Reconsideration Motion.

C. No Other Reasons Exist to Prevent an Award

Lastly, no “special circumstances” render an attorneys’ fees award unjust, and Mr.

Litchfield has complied with the appropriate “procedures and limitations” in timely filing this

application. Although Wiley Rein LLP represents Mr. Litchfield in this matter on a pro bono

basis, such a representation has no bearing on this application for attorneys’ fees. Courts routinely

award attorneys’ fees when pro bono counsel represent the prevailing party. See, e.g., Claro, 579

F.3d at 463 (remanding for determination of amount of fees awarded to pro bono counsel).

Extending fee awards to pro bono counsel “insure[s] that legal services groups, and other pro bono

counsel, have a strong incentive to represent indigent . . . claimants.’” Claro, 579 F.3d at 465

(internal quotations and citations omitted). “[C]urbing an otherwise eligible [defendant’s] right to

collect EAJA [or Hyde] fees based upon the identity or financial status of the attorney, firm, or

organization that has provided the legal services” would cause a chilling effect. Froio v.

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McDonald, 27 Vet. App. 352, 360 (2015) (“EAJA does not seek to punish profitable law firms for

their generosity in assisting those who possess little power to assert their rights against the Federal

bureaucracy.”). Thus, Wiley Rein’s pro bono representation does not impact Mr. Litchfield’s

eligibility for an attorneys’ fees award under the Hyde Amendment. If able to recover fees, Wiley

Rein plans to use these fees to support further Wiley Rein pro bono efforts.

II. CONCLUSION

For the foregoing reasons, the Court should grant Mr. Litchfield’s application and award

reasonable attorneys’ fees under the Hyde Amendment. As this case remains active and continues

to require attorney time and expenses, Mr. Litchfield respectfully requests an opportunity to submit

an itemized amount of fees and expenses with supporting documentation within 30 days of this

Court’s ruling on the Government’s Reconsideration Motion or the completion of any related

appeals or filings, whichever is later.

Dated: July 30, 2018 Respectfully submitted,

/s/ Mark B. Sweet


Mark B. Sweet (Bar # 490987)
Michelle B. Bradshaw (Bar # 241341)
WILEY REIN LLP
1776 K Street NW
Washington, DC 20006
202-719-4649
msweet@wileyrein.com
mbradshaw@wileyrein.com

Counsel for Christopher Litchfield

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on July 30, 2018, a true and correct copy of the foregoing was
electronically filed and served via CaseFileXpress on counsel for the Government as listed below:

Jessie K. Liu
Alessio D. Evangelista
David B. Goodhand
Jennifer Kerkhoff
Rizwan Qureshi
Ahmed Baset
U.S. Attorney’s Office for the District of Columbia
555 Fourth Street, N.W.
Washington, DC 20530

And served via email on counsel for Defendants as listed below:

Andrew O. Clarke
ANDREW CLARKE LAW, PLLC
1712 I Street NW, Suite 915
Washington, DC 20006
(202)780-9144
a.clarke@aclarkelaw.com

Counsel for Dylan Petrohilos

Cary Clennon
P.O. Box 29302
Washington, D.C. 20017
(202) 269-0969
clennonlegal@hotmail.com

Counsel for Matthew Hessler

Mark L. Goldstone
1496 Dunster Lane
Rockville, Maryland 20854
(301) 346-9414
mglaw@comcast.net

Counsel for Daniel Meltzer


Sharon Weathers
717 D. Street, N.W., Suite 300
Washington, D.C. 20004
703-725-9674
sweathers@verizon.net

Counsel for Clay/Caly Retherford

Charles P. Murdter
601 Pennsylvania Avenue NW
Suite 900 South
Washington, D.C. 20004
(202) 638-6959
murdterlaw@hotmail.com

Counsel for Caroline Unger

Respectfully,

/s/ Mark B. Sweet


Mark B. Sweet
Exhibit 1
Exhibit 2
1 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

2 CRIMINAL DIVISION

3 ----------------------------x
:
4 UNITED STATES OF AMERICA :
:
5 versus : Criminal Action Numbers
:
6 ARTURO VASQUEZ, : 2017 CF2 1369
PHILLIP GLASER, : 2017 CF2 1368
7 CHRISTIAN VALENCIA, : 2017 CF2 1203
MOLLY CARTER, : 2017 CF2 1380
8 DANIEL MELTZER, : 2017 CF2 1176
CALY RETHERFORD, : 2017 CF2 1378
9 CHRISTOPHER LITCHFIELD, : 2017 CF2 1235
CAROLINE UNGER, : 2017 CF2 1355
10 MATTHEW HESSLER, : 2017 CF2 7212
DYLAN PETROLHILOS, : 2017 CF2 7216
11 :
Defendants. :
12 ----------------------------x

13 Washington, D.C.
Thursday, May 31st, 2018
14
The above-entitled action came on for motions
15 before the Honorable ROBERT MORIN, Associate Judge, in
Courtroom Number 302.
16
THIS TRANSCRIPT REPRESENTS THE PRODUCT
17 OF AN OFFICIAL REPORTER, ENGAGED BY THE
COURT, WHO HAS PERSONALLY CERTIFIED THAT
18 IT REPRESENTS TESTIMONY AND PROCEEDINGS OF
THE CASE AS RECORDED.
19

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1 APPEARANCES:

2 On behalf of the Government:

3 BRITTANY KEIL, Esquire


AHMED BASET, Esquire
4 Assistant United States Attorney

5 On behalf of the Defendants:

6 PATRICK LINEHAN, Esq. (Defendant VASQUEZ)


DAVID FRAGALE, Esq. (Defendant VASQUEZ)
7 JON FELLNER, Esq. (Defendant GLASER)
MICHAEL BRUCKHEIM, Esq. (Defendant GLASER)
8 REBECCA LEGRAND, Esq. (Defendant VALENCIA)
MEHREEN IMTIAZ, Esq. (Defendant VALENCIA)
9 WILLIAM COFFIELD, Esq. (Defendant CARTER)
MARK GOLDSTONE, Esq. (Defendant Meltzer)
10 SHARON WEATHERS, Esq. (Defendant Retherford)
MARK SWEET, Esq. (Defendant Litchfield)
11 MICHELLE BRADSHAW, Esq. (Defendant Litchfield)
CHARLES MURDTER, Esq. (Defendant Unger)
12 CARY CLENNON, Esq. (Defendant Hessler)
ANDREW CLARKE, Esq. (Defendant Petrolhilos)
13

14 Stephanie M. Austin, RPR, CRR (202) 879-1289


Official Court Reporter
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1 P R O C E E D I N G S

2 THE DEPUTY CLERK: United States versus

3 Arturo Vasquez, 2017 CF2 1369; United States versus

4 Phillip Glaser, 2017 CF2 1368; United States versus

5 Christian Valencia, 2017 CF2 1203; United States versus

6 Molly Carter, 2017 CF2 1380; United States versus

7 Daniel Meltzer, 2017 CF2 1176; United States versus

8 Clay Retherford, 2017 CF2 1378; United States versus

9 Christopher Litchfield, 2017 CF2 1235; United States

10 versus Caroline Unger, 2017 CF2 1355; United States versus

11 Matthew Hessler, 2017 CF2 7212; United States versus

12 Dylan Petrolhilos, 2017 CF2 7216.

13 MR. BASET: Good morning, Your Honor. For the

14 United States, Ahmed Baset.

15 MS. KEIL: Good morning, Your Honor.

16 Brittany Keil for the United States.

17 MR. LINEHAN: Good morning, Your Honor. Patrick

18 Linehan for Mr. Vasquez. Mr. Vasquez is present.

19 MR. FRAGALE: David Fragale also for

20 Mr. Vasquez.

21 MR. COFFIELD: Good morning, Your Honor.

22 Bill Coffield for Molly Carter. Ms. Carter is present and

23 ready to proceed.

24 MS. LEGRAND: Good morning, Your Honor.

25 Rebecca Legrand for Christian Valencia, who is present as


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1 well.

2 MR. BRUCKHEIM: Good morning, Your Honor.

3 Michael Bruckheim and Jonathan Fellner are here present on

4 behalf of Mr. Glaser, who is presently seated in the front

5 row.

6 THE COURT: Good morning.

7 MR. MURDTER: Good morning, Your Honor.

8 Charles Murdter on behalf of Caroline Unger, who is

9 present.

10 MR. SWEET: Mark Sweet and Michelle Bradshaw on

11 behalf of Mr. Litchfield, who is present.

12 MR. CLENNON: Cary Clennon for Matthew Hessler,

13 who is present.

14 MR. CLARKE: Andrew Clarke, counsel for

15 Dylan Petrolhilos, who is present.

16 MR. GOLDSTONE: Good morning, Your Honor.

17 Mark Goldstone, appearing for Daniel Meltzer, who's seated

18 in the back row.

19 MS. WEATHERS: Good morning, Your Honor.

20 Sharon Weathers for Clay Retherford, who's presently

21 seated.

22 THE COURT: Okay. Everybody can be seated.

23 I'll hear from the Government.

24 MR. BASET: Thank you.

25 I'll take some of the wind out of the sails here


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1 by announcing, the Government does intend to dismiss

2 several cases without prejudice today, and it impacts both

3 trial groups.

4 THE COURT: Okay. Could you announce the

5 motion -- the cases which you're seeking to dismiss?

6 MR. BASET: Yes.

7 That would include the entirety of the June 4th

8 trial group to include: United States versus

9 Daniel Meltzer in 2017 CF2 1176; United States versus

10 Clay Retherford, 2017 CF2 1378; United States versus

11 Christopher Litchfield, 2017 CF2 1235; United States

12 versus Caroline Unger, which is 2017 CF2 1355; United

13 States versus Matthew Hessler, 2017 CF2 7212; as well as

14 Dylan Petrolhilos, U.S. v Dylan Petrolhilos, 2017 CF2

15 7216.

16 THE COURT: Okay. Mr. Hessler, Mr. Litchfield,

17 Mr. Meltzer, Mr. Petrolhilos, Mr. Retherford and

18 Ms. Unger, your case has been dismissed. You're free to

19 go.

20 MR. CLARKE: Your Honor, before that --

21 THE REPORTER: What's your name, please? I'm

22 sorry.

23 MR. CLARKE: I'm sorry. This is Andrew Clarke,

24 counsel for Mr. Petrolhilos.

25 I'm going to object to with it being without


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1 prejudice, just because we haven't discussed the Brady

2 violations.

3 I think if Your Honor makes a decision on the

4 evidence and the evidence is out, the Government is not

5 going to be able to bring the case back.

6 MR. GOLDSTONE: Your Honor, Mark Goldstone for

7 Daniel Meltzer.

8 I would join Mr. Clarke's motion that it be with

9 prejudice. Your Honor has already decided the

10 constitutional violation. The only issue we're here for

11 today was to decide the sanction.

12 On the basis of a constitutional due process

13 violation, we ask that this case be dismissed with

14 prejudice.

15 THE COURT: All other defendants join in that?

16 SIMULTANEOUS SPEAKERS: Yes, Your Honor.

17 THE COURT: Do you have to make a call to your

18 office? Because I will move forward on --

19 MR. BASET: That's fine. We are prepared to

20 proceed. There are other charges in cases as well.

21 THE COURT: Okay. So why don't you go through

22 that.

23 MR. BASET: Sure.

24 MS. KEIL: And additionally in the May 29th

25 group, the Government will be dismissing the United States


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1 versus Molly Carter, 2017 CF2 1380.

2 The remaining defendants in that group, the

3 United States versus Phillip Glaser, the United States

4 versus Christian Valencia, and the United States versus

5 Arturo Vasquez, the Government will only be proceeding on

6 Counts 2, 3, 4 and 5. Those are all misdemeanor counts.

7 THE COURT: So they're still a jury trial?

8 MS. KEIL: It's a bench trial, Your Honor.

9 THE COURT: There are four misdemeanors. It's

10 got to be five now?

11 (Court and clerk confer.)

12 THE COURT: Is it five now? I thought it was

13 four.

14 MS. KEIL: My understanding is four is still a

15 bench trial, Your Honor.

16 THE COURT: Okay. Could you announce the --

17 could you announce the charges upon which you're

18 proceeding?

19 MS. KEIL: Yes, Your Honor.

20 Count 2 is rioting, which is misdemeanor

21 rioting.

22 Count 3, conspiracy to riot.

23 Count 4 is a destruction of property charge, as

24 a misdemeanor.

25 And Count 5 is also destruction of property, as


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1 a misdemeanor.

2 MR. BASET: And, Your Honor, if I could make two

3 points as far as --

4 THE COURT: I'm sorry.

5 Can I just get -- destruction of property. What

6 was that other one?

7 MS. KEIL: The final two are both destruction of

8 property.

9 THE COURT: Both destruction of property.

10 Yes.

11 MR. BASET: Just for the record, as a basis of

12 our decision today, it was informed at two levels. The

13 first is: Judge Knowles' ruling yesterday on the motion

14 to dismiss on the -- Count 1, which was the felony rioting

15 Count.

16 Her --

17 THE COURT: You mean the -- not the rioting

18 count.

19 MS. KEIL: It's -- yeah. It's the urging or

20 inciting.

21 THE COURT: Inciting count.

22 MR. BASET: It's inciting a riot.

23 And, in her decision, she laid out a standard

24 for what the intent would be to maintain that sort of a

25 charge moving forward.


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1 That's a more specific standard that we've

2 received from the Government that we didn't quite receive

3 in the first case. And so that's -- knowing that, that's

4 informed our decision moving forward as far as how we can

5 prosecute future cases.

6 The second is that the Government's focus in

7 this case has always been about the conduct and the

8 participation in a black block between the hours of 10 and

9 11 in the morning on January 20th, 2017 in Washington,

10 D.C.

11 And to that end, the Government intended and has

12 used a single video from a planning meeting that took

13 place in Washington, D.C. on June 8th -- or rather

14 January 8th of 2017.

15 Now, that video, of course, was recorded

16 surreptitiously by a group called Project Veritas, and we

17 understand that that was controversial.

18 That being said, we didn't have any reason to

19 doubt the reliability, the authenticity, the accuracy of

20 what was depicted on that video, which we believed was

21 evidence, and still believe, to this day, is evidence of

22 the planning of this event.

23 In looking at the video, we had no reason to

24 deny or doubt the reliability. And that video was

25 actually determined to be admissible evidence, reliably


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1 admissible evidence, at least for purposes of trial.

2 But that being said, as we've been able to

3 observe in the ongoing trial, the issue of Veritas has

4 resulted in, what we believe to be a distraction from the

5 conduct of the defendants.

6 Now, it's understandable why, as a trial tactic,

7 that's happening. But what it's done, in effect, is we

8 are now not focused as much on the conduct of the

9 defendants; it's now become more of a focus and an inquiry

10 on what the motivations and tactics were of this

11 particular group. Which, from the Government's point of

12 view, does not undercut the evidence that we had in this

13 case.

14 But that being said, the Government's decision

15 is based on an attempt to refocus the ongoing trials and

16 the trials moving forward on specifically the conduct of

17 the defendants.

18 And so from this point, we're not intending to

19 use any sort of video, any sort of statements elicited

20 from any videos used by Project Veritas.

21 THE COURT: In the non-jury matters?

22 MR. BASET: Correct.

23 THE COURT: Okay. So I appreciate you coming in

24 and announcing, because it clarifies what the Court has to

25 do. But there is an objection to the motion to dismiss


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1 without prejudice, so I will be hearing and deciding on

2 sanctions with regard to the Brady violation.

3 Do you want to just take a pass to consult with

4 your office about whether or not you wish to --

5 MR. BASET: We're prepared to proceed.

6 I would, if I may have just about ten minutes

7 just to consult --

8 THE COURT: Yes.

9 MR. BASET: -- and make one final consultation?

10 THE COURT: No. No. That's fine.

11 MR. BASET: But we're prepared to proceed today

12 with the arguments about Brady and why they should be

13 dismissed without prejudice.

14 THE COURT: Okay. So how do you wish to proceed

15 with regard to the defense?

16 MR. CLARKE: After the ten minutes we can

17 proceed on the Brady violations. I think that will clear

18 up some things for everyone.

19 THE COURT: Okay. Thank you.

20 Ten minutes.

21 MR. BASET: Thank you.

22 THE COURT: Well, can I ask the Government why

23 you're seeking dismissal without prejudice?

24 MR. BASET: Well, we believe because the issue

25 that's been raised, at least the issue of Brady, has


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1 emanated from the Government's use or obtaining videos

2 from Veritas. We believe that moving forward, if we're

3 not using these videos, that, as far as the trials moving

4 forward, they're not affected to the extent the defense

5 argues --

6 THE COURT: No. I'm not talking about the

7 trials moving forward. I'm talking about --

8 MR. BASET: So as far as these trials are

9 concerned, the sanction that they've always sought was

10 dismissal. They've received that sanction. We've made

11 the --

12 THE COURT: Okay. I just want to refocus you.

13 I'm asking you why you're seeking dismissal

14 without prejudice.

15 Do you have an intent to refile charges?

16 MR. BASET: At this stage, I can't speak to

17 that. I know that that's not part of the discussion right

18 now.

19 THE COURT: Okay. Could you discuss that, and

20 if you're not intending to go forward at a later time,

21 could you reconsider the nature of your motion to

22 suppress?

23 MR. BASET: Understood.

24 THE COURT: Do you see what I'm saying?

25 MR. BASET: Yes.


12
1 THE COURT: In other words --

2 MR. BASET: And to be frank, I don't know if

3 that's a determination that's been made or can be made at

4 this point, but I'll certainly inquire.

5 THE COURT: But the point is, if your motion to

6 dismiss is to dismiss the case and not go forward --

7 MR. BASET: Sure.

8 THE COURT: -- then we're going to go through,

9 with many different counsel, the issues that I have to

10 decide.

11 MR. BASET: Understood.

12 THE COURT: We may still have to go through it

13 with other counsel on the people you're proceeding with,

14 but it will be three defense counsel as opposed to ten.

15 MR. BASET: Understood. Thank you.

16 THE COURT: Thank you. Ten minutes, please.

17 (A brief recess was taken.)

18 THE COURT: We're back in session in the

19 matters.

20 I'll hear from the Government.

21 MR. BASET: I did have an opportunity to

22 inquire. And it's the Government's position that we would

23 ask for this to be dismissed without prejudice.

24 While we don't necessarily intend to re-bring

25 these cases, if there was somebody who, for example, came


13
1 in and gave us evidence, additional evidence, it would

2 behoove us not to be able to at least consider the

3 evidence.

4 THE COURT: Okay.

5 MR. BASET: So we do think that this could be

6 then decided if the Government did re-bring it at that

7 juncture. Because, at this point where the cases are

8 dismissed, it doesn't --

9 THE COURT: Well, they're not dismissed.

10 There's a motion to dismiss.

11 MR. BASET: I understand.

12 THE COURT: So the motion to dismiss hasn't been

13 granted, and they're objecting to it, so I'll have to

14 hear --

15 MR. BASET: We're fully prepared to litigate any

16 further issues.

17 THE COURT: Okay. Thank you.

18 Who wants to argue?

19 MR. CLARKE: Andrew Clarke, counsel for

20 Dylan Petrolhilos.

21 I assume we're operating under the assumption

22 that the case is going to be dismissed?

23 THE COURT: I think we're only operating -- I

24 mean, unless -- the only argument I'm going to be

25 entertaining is whether the cases should be dismissed


14
1 without prejudice for the violation, correct?

2 MR. BASET: Yes.

3 THE COURT: Is that the Government's view?

4 MR. BASET: Yes.

5 THE COURT: Thank you.

6 MR. CLARKE: Another clarification.

7 So the Government -- is the Government conceding

8 that there was another Brady violation or ...

9 THE COURT: I don't know what the Government's

10 conceding.

11 MR. BASET: The Government's not conceding a

12 Brady violation.

13 THE COURT: Okay. Thank you.

14 MR. CLARKE: Thank you. Okay.

15 So the Government has, again, violated its Brady

16 obligations on the May 30th email. The Government used

17 four factors -- or sent to the Court four different

18 factors in which --

19 MR. BASET: If I could just inquire with the

20 Court. I apologize for interrupting.

21 There was the -- in the Government's point of

22 mind, there are two distinct Brady issues. One was -- one

23 that was raised with respect to the clipping of the

24 planning meeting video.

25 THE COURT: Correct.


15
1 MR. BASET: And that's something that the

2 Government has responded to on the papers just last night.

3 And then there's the other Brady issue that was

4 raised by counsel, at least in a filing last night, with

5 respect to additional Veritas videos.

6 So, in my mind, at least from the Government's

7 point of view, these are two distinct issues. And in

8 terms of the analysis, I think it really delves or is

9 centered on that first Brady issue.

10 THE COURT: Right. And, in the Court's view, is

11 they're not distinct.

12 MR. BASET: Okay.

13 THE COURT: Thank you.

14 MR. CLARKE: I agree with the Court's view.

15 It's cumulative, and it all goes to why this case should

16 be dismissed with prejudice.

17 On the May 30th email to the Court, the

18 Government laid out four different factors in which they

19 used to determine whether or not to disclose evidence to

20 the defense.

21 Court's indulgence while I pull up those

22 factors.

23 The first factor was: Did the recording contain

24 information about the ACB? Which is the anti-capitalist

25 block.
16
1 The second was: Did the recording contain

2 statements by or conduct of defendants in this case?

3 The third was: Was there anything on the record

4 that could constitute evidence of a defendant's knowledge,

5 intent, purpose for the charged conduct? And did the

6 recording contain Brady information for the charged

7 conduct?

8 And in that email, they also admitted to not

9 disclosing 69 recordings from Project Veritas. 66 videos,

10 and three audio clips.

11 My motion focuses on 35 of those videos that

12 were from an action camp taken by Project Veritas to which

13 a Government -- an undercover Government agent was

14 present, Officer Adelmeyer.

15 The Government planned to introduce evidence

16 that violence was discussed at that action camp, but,

17 again, in its email, they discuss that the group was --

18 that the recordings from January 14th and 15th appear

19 to -- they appear to have a workshop teaching -- how to

20 de-escalate conflict when you observe someone being

21 targeted or harassed based on their race or religion.

22 That's in direct conflict with what the

23 Government -- the Government's witness is going to be

24 testifying about.

25 When asked, on April 6th during a trial


17
1 readiness hearing, about the videos from this action camp,

2 the Government denied any of those videos existed. We now

3 know that this is wholly untrue. I think that's a clear

4 Brady violation.

5 The reason why the case should be dismissed with

6 prejudice is because now we have cumulative actions.

7 If we start from the beginning and we start from

8 the fact that, again, we would not have had any of this

9 evidence had our trial group not filed a motion to compel

10 the raw video from the planning meeting, to which we

11 discovered that there were three additional minutes at the

12 end of the video, to which the Government never alerted us

13 to, which has evidence that exonerates our clients. And

14 the operative says "I don't think that they know

15 anything."

16 That led, again, to three additional videos from

17 Project Veritas being disclosed by the Government totaling

18 a little bit over 50 minutes.

19 That then led to a meeting with another trial

20 group with the Project Veritas operative where he stated

21 that he "didn't think anyone was planning violence,

22 especially" -- and he also stated that he didn't think

23 that Dylan Petrolhilos, the person who was in front of the

24 group, was planning any violence. And he also disclosed

25 that he took other videos, and other Project Veritas


18
1 operatives took other videos before January 20th.

2 This then led to the May 30th email, which

3 counsel -- which chambers received, in which they

4 disclosed that there's now 69 more recordings from Project

5 Veritas that the Government seemingly has had since

6 January of 2017, or around January of 2017, and to which

7 now on June -- or sorry, May 31st of 2018 or May 30th of

8 2018, we are now being disclosed.

9 Again, Your Honor, I think that it's very clear

10 that there's a Brady violation here. The Government's

11 witness is going to testify that the group planned to be

12 confrontational but non-violent. That's his observation

13 from that action camp.

14 The Government's attorney was asked whether or

15 not videos existed from that action camp. The

16 Government's attorney said there were not any videos.

17 Now, on May 30th, they're saying that there are

18 videos. I just don't know what the Government's

19 opposition to that could possibly be.

20 Now, for the prejudice argument, it's now too

21 late for us to go back and investigate any of those

22 circumstances. These circumstances happened back in

23 January of 2017. During our meeting with the Project

24 Veritas -- during the meeting with the Project Veritas

25 operative, they stated that they didn't know anything.


19
1 Seemingly so because this was over a year and -- a year

2 and five months ago.

3 They also stated -- the Government's witness,

4 Officer Adelmeyer, also stated that he doesn't remember

5 some things. The Government's detective says that he

6 doesn't remember some things. That's because of the

7 length of time that's passed.

8 Had we known about all of this evidence from the

9 beginning, all of the defense counsel would have been able

10 to at least investigate some of those circumstances

11 earlier.

12 And again, I rest on Vaughan, because this case

13 is actually worse than Vaughan, because in Vaughan --

14 THE COURT: I know. I was the trial judge on

15 Vaughan.

16 MR. CLARKE: Okay.

17 THE COURT: I'm pretty familiar with that case.

18 MR. CLARKE: I just want to make it clear the

19 reasons why this case is worse than Vaughan.

20 It's worse than Vaughan because of the fact that

21 there's 69 different recordings that were not disclosed.

22 We had to file a motion to even get those

23 disclosures from the Government, and we're asking that the

24 case be dismissed with prejudice. I think that's the only

25 remedy at this point for the defendants in the June 4th


20
1 trial group.

2 THE COURT: Thank you.

3 MR. SWEET: Your Honor, Mark Sweet on behalf of

4 Mr. Litchfield.

5 I agree with everything that Mr. Clarke has

6 said. I just wanted to add one additional point. It was

7 also in the motion last night.

8 The Court had previously found a violation of

9 Brady and Rule 16, but we believe there's actually a third

10 violation now, and that is a violation of the Court's

11 order to compel the Government to produce the entirety of

12 whatever is in the Government's possession to the defense.

13 This was in the April 6th hearing that we had in response

14 to our motion to compel.

15 At the time, we went back and forth, several

16 times, with the Government about what existed. The Court

17 accepted the representations from the Government as to

18 what video evidence it had from Project Veritas. And I

19 think if there was any confusion about the scope of the

20 Court's order -- and I don't think there should be,

21 because I think it's clear on the face.

22 But if there's any confusion at all at that time

23 by the Government as to whether it applied to just the

24 January 8th meeting or the entirety of all the Project

25 Veritas videos that it had, it was incumbent upon the


21
1 Government to disclose, at that time, that it had many

2 other videos from Project Veritas; that it had determined

3 these videos to be not relevant; and it was choosing not

4 to produce those; and that those would be beyond the

5 Court's order.

6 And they never spoke up; they never said

7 anything to the Court; they never said anything to the

8 defense; and I think it not only violated the Court's

9 order, but it missed many opportunities to clarify the

10 record for everybody. And so it's because of that that

11 we're in this situation right on the eve of trial.

12 THE COURT: Thank you.

13 Before you can make -- can you give

14 clarification? Have you had further discussions with the

15 FBI?

16 MS. KEIL: I have, Your Honor.

17 THE COURT: Okay. Could you make

18 representations about that?

19 MS. KEIL: Yes, Your Honor.

20 So when I spoke with them yesterday, the

21 questions -- I'll start with the questions the Court asked

22 me yesterday. Which was: First, when did the U.S.

23 Attorney's Office know that there had been an interaction

24 between the FBI and Project Veritas.

25 The Government did know that in February of


22
1 2017. They knew that as it related to the deplorable

2 action that was also being undertaken. There was actually

3 a criminal case about that, a separate case. And the

4 Government did receive, at that time, the 302, which the

5 Government provided yesterday.

6 That was provided in response to what -- the FBI

7 information, what videos they may have had about the day

8 of the event of January 20th. Then the Project Veritas

9 video, the Government realized there was a video of a

10 planning meeting and reached out to Project Veritas to get

11 that information.

12 The first time defense counsel, I believe, was

13 actually notified of who made that video was in November

14 during a pretrial hearing for the November defendants.

15 There was no agreement by the Government to hide any -- of

16 the fact that Project Veritas and the FBI had met.

17 I spoke with the agent who met with the Project

18 Veritas personnel. They were contacted, initially, by the

19 attorney for Project Veritas through their public line.

20 Basically, as the FBI understood it -- and I don't want to

21 speak for them, but it's my understanding of what they

22 told me is that they received this information, that

23 Project Veritas had been doing their own investigation

24 into leftist organizations, from their perspective, and,

25 at some point, they came across material that they


23
1 determined somebody might be getting hurt and they needed

2 to tell the FBI this.

3 So they reached through their public line, they

4 met with an agent. They had sent them two clips, one was

5 one minute, one was two minutes. They both related to

6 chaining Metro trains together during the inauguration to

7 cause a disturbance.

8 THE COURT: Can I ask you -- and I don't mean to

9 interrupt.

10 If you can -- the memo indicates -- 302

11 indicates there was a meeting on January 13th.

12 MS. KEIL: Yes.

13 THE COURT: The memo indicates it's posted on

14 January 27th. And it appears a lot of the discussion

15 about meetings that occurred between the 13th and the 20th

16 are in the past tense, as if they're reporting on events

17 that had occurred.

18 Do you --

19 MS. KEIL: They informed me they only met with

20 them one time, and so my understanding was that was on the

21 13th, but that does read --

22 THE COURT: Was there any oral update or ...

23 MS. KEIL: I asked them after that one meeting

24 that they had -- they didn't bring any videos to the

25 meeting. They didn't bring anything to the meeting. The


24
1 only videos they ever received, like I said, was that one

2 two-minute video. They didn't even receive the planning

3 videos or any of the things that the U.S. Attorney's

4 Office had.

5 That they -- that after that, they never asked

6 them, please keep us updated, let us know if you find

7 anything. And, in fact, they never had any more

8 interaction with them. And that was the extent. And that

9 they did meet with those individuals, that there were

10 three individuals from Project Veritas who reported on the

11 meetings that they had attended on January 8th.

12 THE COURT: So when there's a discussion in the

13 302 about future -- is that a discussion about future

14 events or past events? That's what's unclear to me.

15 MS. KEIL: Right. It appears -- it does appear

16 that they met with them on the 13th. But it says that

17 there's -- it says that they're going to be hosting these

18 things, like, on the 14th and the 16th.

19 THE COURT: Did you look at the tense of the

20 verbs and the later descriptions of those events?

21 MS. KEIL: Right. I see that.

22 I mean, I personally spoke with the agent who

23 wrote this yesterday.

24 THE COURT: Okay.

25 MS. KEIL: So he told me he's met with them one


25
1 time.

2 THE COURT: Okay.

3 MS. KEIL: So I don't know why it is written

4 this way, but I -- the person who signed this is the

5 person who made those representations to me.

6 THE COURT: Thank you.

7 MS. KEIL: And so that was what their -- the

8 FBI's perspective was that this was a concerned citizen

9 group, heard about upcoming criminal activity, so they

10 spoke with them, and that was the information they

11 received.

12 Those two clips relating to the train-chaining

13 situation were not disclosed to us, from the FBI to us.

14 We did -- and I believe that's discussed

15 somewhere in the memo, that we did have an audio clip that

16 also discussed the train, which is actually the same one

17 that the FBI had had.

18 So that was their -- there was no intention to

19 not disclose anything purposefully to defense from the

20 Government. And that was the knowledge of the FBI's --

21 the FBI's scope of their knowledge of what Project Veritas

22 was doing, is that it was their understanding that they

23 were a right organization trying to infiltrate a left

24 organization for their own purposes and came across what

25 they believed might be actions that would cause harm to


26
1 people, and that's why they sent --

2 THE COURT: Thank you.

3 MR. BASET: With respect to why these cases

4 should not be dismissed with prejudice, I think that that

5 would be the ultimate sanction, one that even is not

6 supported by the facts.

7 I think, for one, at the onset of this case,

8 it's my understanding that what the Government was

9 receiving was server information, Facebook information and

10 other types of private information from citizens.

11 The concern that the Court had expressed was the

12 privacy of these individuals, and that the Government

13 should engage in a Rule 16 analysis, an inquiry into the

14 scope of all this evidence to whittle it down to what is

15 relevant.

16 And the Government has tried, to the best of its

17 ability, to --

18 THE COURT: That's with regard to the cell phone

19 communications?

20 MR. BASET: Well, that's the prism through

21 which -- and it was specific when it came up with regard

22 to cell phone communications, and I believe DreamHost, and

23 our subpoena, in that regard, that because there was so

24 much information, a lot of it was private, and we needed

25 to focus. Because the --


27
1 THE COURT: No. The DreamHost has nothing to do

2 with that.

3 MR. BASET: Well, that was --

4 THE COURT: That was the Government attempting

5 to seek information of other individuals. We're talking

6 about your Brady obligation.

7 MR. BASET: Understood. But that required an

8 analysis under Rule 16 of what was relevant.

9 And as far as what was relevant, the videos that

10 have been discussed that Veritas has taken, just to

11 provide some context, they infiltrated a lot of

12 conversations, a lot of meetings, from meetings in

13 New York to Chicago to D.C. And all of these meetings had

14 only one thing in common, that they seemed to be planning

15 of various legal protests in response to -- or in

16 preparation of the inauguration.

17 Now, the Government's focus on this case has not

18 been every single protest that's planned for the

19 inauguration, but rather specifically, the black block

20 that moved between 10 and 11 a.m. on Logan Circle, and

21 those individuals involved in that black-block activity.

22 But, conversations that people are having about,

23 for example, de-escalation tactics, if you were to witness

24 a hate crime, which, I believe, is something that's

25 captured on these videos. That's an example. Or people


28
1 explaining their own political views or their political

2 philosophy about what's happening in the world.

3 These are conversations that -- a lot of them

4 were private conversations that the person who created

5 this video was having with individuals that had nothing to

6 do with the conduct at issue.

7 And so, that was the prism through which we

8 evaluated all the evidence that we received. Because the

9 investigation that was done by agencies, whether it was

10 Secret Service, whether it was our own office, whether it

11 was MPD, there were a lot of investigations, and there was

12 a lot of protests that were planned that day.

13 So, we received a lot of evidence that had

14 nothing to do with the anti-capitalist black-block march,

15 but rather, other events that were planned.

16 Now, counsel talked specifically about action

17 camp. And I want to be clear about a couple things.

18 The first is that they represented, or their

19 assertion, is that we were provided a video of an action

20 camp meeting that Officer Adelmeyer attended. That's not

21 true. We were never provided any sort of video by Veritas

22 of any meeting -- an action camp meeting, that is -- that

23 Adelmeyer attended.

24 To be clear, though, when those action camps

25 were planned at American University, that was a week-long


29
1 event with numerous types of sessions and meetings and

2 plannings.

3 And so Adelmeyer, as our understanding, went to

4 some of that. It seems to be, from the Government's point

5 of view, that Veritas went to some of those meetings. But

6 we don't have any reason to believe we have no -- to

7 believe that Adelmeyer's attendance at that action camp

8 was ever recorded by anyone, let alone from Veritas.

9 The second assumption or assertion that's made

10 is that we've used evidence from action camps. That's not

11 accurate. While Officer Adelmeyer has testified that he

12 attended an action camp, there's nothing of substance that

13 he testified to that went to the conduct at issue. Just

14 the fact that he attended. So that would be the first

15 thing.

16 The additional aspect of this is that, at the

17 end of the day, the Government's concern was also twofold.

18 One was relevance; but two was also the privacy of the

19 number of citizens that Project Veritas had captured on

20 video talking about their own politics, talking about

21 things that have absolute no relevance to this case.

22 And, in fact, Your Honor had requested that we

23 provided a summary of the videos that were not released.

24 And we provided those summaries. And within those

25 summaries, at least from what we gather, there's no


30
1 relevance.

2 And so while the defense can claim that they're

3 entitled to these videos, it would be akin to requiring

4 the Government then to turn over, for example, all body

5 cam from every type of arrest that was made in a two-block

6 square mile, even though those other arrests had nothing

7 to do with the crime at hand.

8 And I think that was, at least the Government's

9 way of looking at it. Especially in light of some of --

10 or at least the prior rulings granted. And I readily

11 agree with you that that was with respect to different

12 matters with respect to DreamHost or Facebook and our sort

13 of processing of that evidence.

14 But it's through that same lens that we also

15 looked at this evidence, too. And there was no reason for

16 us to believe that that lens should have been different.

17 It's the same lens that we apply to all other types of

18 criminal prosecutions.

19 So to be sure, there were a lot of things that

20 were captured by Veritas. We gave them what is relevant

21 in this case, and we still have not heard anything that

22 the defense is claiming that is Brady in the sense of

23 exculpatory information.

24 Granted, I understand that they would like to

25 investigate these things. And just like they wanted to


31
1 investigate the clipping of the video that occurred that

2 was the basis of the first Brady argument. But as we've,

3 at least learned from our investigation of that case, that

4 statement had no relevance, at least in our case. And I

5 think that the same sort of analysis would apply here.

6 And I also think, too, because the Government

7 has dismissed the case --

8 THE COURT: No. It's moved to dismiss the case.

9 MR. BASET: Has moved to dismiss the case, that

10 that is the ultimate sanction here. The cases are not

11 proceeding against them.

12 And I think absent a showing of some real bad

13 faith on the part of the Government where we were

14 intentionally trying to hide relevant probative evidence

15 that would exculpate their clients, I think that

16 dismissing this case with prejudice would be far too

17 extreme of a sanction.

18 THE COURT: Could you explain your office's

19 representation to this Court that left a clear impression

20 that there was only one video received by Detective

21 Pemberton?

22 MR. BASET: Now --

23 THE COURT: That was made personally to this

24 Court.

25 MR. BASET: I understand.


32
1 To be sure, I was not there making the

2 representations. But what I can say is that it was our

3 understanding that that discussion was based off of that

4 specific planning meeting.

5 THE COURT: Because your office represented

6 there was only one video. That's what your office

7 represented.

8 MR. BASET: I can't speak to that at this

9 moment.

10 THE COURT: So you're not providing any argument

11 on behalf of your office as to why those representations

12 were made to the Court?

13 MR. BASET: And I had a brief opportunity to

14 review at least parts of the transcript that were attached

15 to the motion that was provided last night.

16 My quick reading of that is, at least -- and

17 again, I can't speak for Ms. Kerkhoff, who was standing in

18 on that day, but my understanding is that the inquiry was

19 focused on the planning meeting video. There were --

20 THE COURT: That's because your office

21 represented that was the only video turned over to

22 Detective Pemberton. That's why it was limited to that

23 video.

24 MR. BASET: I can't speak to that, Your Honor,

25 at this time.
33
1 If I could take a moment, if there's a specific

2 inquiry that's dispositive on this issue --

3 THE COURT: No. If you weren't prepared to

4 answer it now, I'm not going to give you time.

5 MR. BASET: I was not.

6 THE COURT: Anything else?

7 MR. BASET: Brief indulgence.

8 MS. KEIL: Your Honor, may I just add, again, we

9 were not here when -- whatever representation the Court is

10 talking about. I'm not sure exactly what that one was,

11 and I understand that the Court --

12 THE COURT: No. I have a very clear

13 recollection of that representation.

14 MS. KEIL: I know.

15 I will say that, in conversations, it has always

16 been, I believe, the understanding that it was limited to

17 January 8th. That is my understanding is that was why

18 that comment, perhaps, had been made.

19 THE COURT: Again, this becomes circular.

20 That's because your office represented that.

21 MR. BASET: And if I could add just one thing.

22 The Government did disclose Veritas videos that

23 were not from January 8th.

24 THE COURT: I agree with that.

25 MR. BASET: So we -- we didn't represent that


34
1 this was the only video that we had. There were other

2 Veritas videos.

3 THE COURT: Okay. Anything else?

4 MR. BASET: Nothing additional.

5 THE COURT: Anything?

6 MR. CLARKE: Your Honor, the Government has

7 provided us with co-counsel's statements. I just want to

8 give you -- co-conspirator statements. I'm going to be

9 brief. Thank you.

10 This is Andrew Clarke, counsel for

11 Dylan Petrolhilos.

12 In that chart -- and I can hand this up to the

13 Court -- the UC attended "action camp at American

14 University on January 14th, 2017." It can't be any more

15 clearer that that's what he attended.

16 That's all I have. And the Government is --

17 that's all I have, Your Honor.

18 THE COURT: Okay. Thank you.

19 Well, the Court did find previously a Brady

20 violation, but what the Court indicated, at that time, was

21 the defense had a right to that information so they could

22 conduct an appropriate investigation. And as with any

23 investigation, additional facts can be revealed. And

24 that's what happened with regard to the Court's ordering

25 of the disclosure and the finding of the Brady violation.


35
1 I don't know what the Government's

2 explanation -- and they have offered no explanation as to

3 why it did not appraise the Court of the existence of

4 these additional videos.

5 And the Court's memory and the reading of the

6 transcript is, the Government left the Court and the

7 parties with the distinct impression that there were no

8 additional videos other than what had been previously

9 disclosed. And we come to find out, there are additional

10 videos, in the Court's mind, that would be relevant to the

11 conduct of any investigation of a competent defense

12 counsel.

13 With regard to the alleged videos of the action

14 camps, the defendant could be present or not present, each

15 of which would be relevant to any defendant's defense of

16 conspiracy. And it's hard to put the defense in a

17 position to make them whole.

18 I do think it's a serious violation. It was

19 intentional in the sense that the Government made

20 intentional decisions that it made not to disclose.

21 I'm not prepared to find that it was necessarily

22 malevolent, but counsel before me is not able to make

23 representations, so I can't make a complete decision with

24 regard to that. But, to me, it was, at this point, not

25 explainable to the Court, the representations that were


36
1 made, particularly in light of Vaughan and the directions

2 of the Court of Appeals.

3 I agree with the Government's submission that

4 dismissal is a very severe sanction for the Government.

5 In balancing all the factors -- and this is with regard to

6 the remaining defendants as well -- I'm going to dismiss,

7 with prejudice, the conspiracy --

8 Excuse me. Please, don't react.

9 A DEFENDANT: I'm sorry.

10 THE COURT: Dismiss, with prejudice, the

11 conspiracy charge, and not allow the Government to proceed

12 on a Pinkerton theory.

13 That will be the extent of the Court's sanctions

14 with regard to the Government. They will not be able to

15 proceed on any conspiracy to riot or Pinkerton theory with

16 regard to liability on behalf of any defendant.

17 I'm going to deny the motion to dismiss, with

18 prejudice, the remaining counts. I do take into account

19 the Government's offer to dismiss without prejudice, and

20 the Court will grant the motion to dismiss without

21 prejudice.

22 Mr. Hessler, Mr. Litchfield, Mr. Meltzer,

23 Mr. Petrolhilos, Mr. Retherford and Ms. Unger, as well as

24 Ms. Carter, you're free to go.

25 MR. BASET: Your Honor, if I may ask a point of


37
1 inquiry.

2 THE COURT: Uh-huh.

3 MR. BASET: For clarification, I understand that

4 the Government is not allowed to proceed on the conspiracy

5 to riot?

6 THE COURT: Correct.

7 MR. BASET: The Government's evidence and theory

8 in that indictment is that the conspiracy to riot begins

9 at Logan Circle --

10 THE COURT: Right.

11 MR. BASET: -- once the movement occurs but does

12 not include any sort of --

13 THE COURT: But what I'm saying is: The

14 evidence concerning conspiracy and the conspiracy charge,

15 because the Government did not disclose these videos and

16 allow proper investigation, I'm sanctioning the Government

17 from proceeding on that count or on that theory.

18 You still have aiding and abetting. I'm not

19 precluding that. But the conspiracy count and Pinkerton

20 liability flowing from that, the Government is prohibited

21 from going forward on.

22 MR. BASET: Thank you.

23 THE COURT: Thank you.

24 SIMULTANEOUS SPEAKERS: Thank you, Your Honor.

25 THE COURT: So who is left? Or do you need time


38
1 now, or do you just want me to certify your trial to the

2 trial judge?

3 MS. KEIL: I -- oh, I don't know if other

4 counsel --

5 THE COURT: No, I'm asking the Government.

6 MS. KEIL: Yes, Your Honor. For the remaining

7 three defendants, I think we would be prepared to -- I

8 don't know when they would be prepared to start, but

9 Monday would be our preference, if the Court is willing to

10 give us that. Because Mr. Qureshi is still in trial.

11 THE COURT: Oh, I see. Okay.

12 So who's left? Ms. Weathers is left?

13 MS. WEATHERS: Yes, I'm here. No. No. No.

14 I'm not left, Your Honor. You've dismissed my client.

15 Sharon Weathers for Clay Retherford.

16 I just have one question I would like to pose to

17 the Court before my client leaves. And that is: Since

18 the case has been dismissed, partially with prejudice,

19 partially without prejudice, I hereby make a demand upon

20 the Government for the return of my client's personal

21 property.

22 THE COURT: Okay. You can discuss that with the

23 Government. I'm sure they're -- they will make whatever

24 appropriate decision. We don't have to do it here.

25 MS. WEATHERS: Thank you.


39
1 THE COURT: Who are the defendants left?

2 MR. LINEHAN: Mr. Vasquez.

3 MS. LEGRAND: Mr. Valencia.

4 MR. BRUCKHEIM: And Michael Bruckheim and

5 Jonathan Fellner on behalf of --

6 THE COURT: Okay. There's a request from the

7 Government to proceed on Monday.

8 MS. LEGRAND: Just because my client's here, how

9 long do you think we'll need?

10 MS. KEIL: I mean, since it's a bench trial, I'm

11 hoping --

12 THE COURT: Days, as opposed to weeks.

13 MS. KEIL: Yeah. Two days, perhaps, for the

14 Government's evidence, I think should be --

15 MS. LEGRAND: And just to be clear now, we would

16 be proceeding on Counts 1 --

17 MR. LINEHAN: 2, 4 and 5.

18 MS. LEGRAND: Not the conspiracy counts. So 2,

19 4 and 5?

20 MS. KEIL: Correct. Yes.

21 THE COURT: Okay.

22 MS. LEGRAND: And -- sorry. You proposed

23 Monday?

24 MS. KEIL: Yes. Today was going to be a voir

25 dire day --
40
1 THE COURT: Jury selection, yes.

2 MS. KEIL: -- so I feel, if that's okay with the

3 Court, that --

4 THE COURT: No. The parties shouldn't have been

5 prepared with witnesses today.

6 MS. KEIL: Right. So Monday we would be

7 prepared to start with witnesses and openings.

8 MS. LEGRAND: Do you think we could be done next

9 week?

10 MS. KEIL: I hope, depending on counsels'

11 questions, that we would be done within two to three days

12 with the Government's case.

13 MS. LEGRAND: I'm just asking -- I'd like to --

14 that probably makes sense.

15 Everybody else?

16 MR. FRAGALE: It makes sense.

17 MR. LINEHAN: We're fine.

18 MS. LEGRAND: Okay. My client has to travel and

19 stay in town.

20 THE COURT: And if this were a jury trial, we

21 wouldn't have been starting until Monday anyways with

22 witnesses, so I think that's a fair resolution.

23 Thank you.

24 MS. KEIL: Is there a courtroom we should report

25 to on Monday?
41
1 THE COURT: Judge Dayson.

2 MS. KEIL: Okay. Thank you, Your Honor.

3 MR. LINEHAN: Thank you, Your Honor.

4 MR. FRAGALE: Do they need to sign?

5 THE DEPUTY CLERK: Yes.

6 Mr. Glaser, Mr. Valencia and Mr. Vasquez, you

7 each will be signing notice to return to court on Monday,

8 which is June 4th, at -- in Courtroom 203 before

9 Judge Dayson. If you fail to appear at that date and

10 time, you'll subject yourself to an additional $12,500

11 fine, five five years in jail or both.

12 Do you understand the warning?

13 DEFENDANT VALENCIA: Yes.

14 DEFENDANT VASQUEZ: Yes.

15 DEFENDANT GLASER: Yes.

16 (Court and clerk confer.)

17 THE COURT: Can I remind the Government with

18 regard to motions to return property. I think the process

19 we had before is notifying other defendants to make sure

20 that they are not requesting their property for evidence

21 in their trial.

22 MS. KEIL: Yes. I'm sure -- if that process has

23 been done before, I will speak with the --

24 THE COURT: I wanted to remind the Government

25 with regard to that.


42
1 MS. KEIL: Okay. Yes, Your Honor.

2 MS. LEGRAND: Can I make a request to save

3 resources?

4 If there's any chance you could call the exhibit

5 list now, that -- I know that might be a lot of work on

6 your end. If you can, that would be great, but I

7 understand --

8 MS. KEIL: Well, we can all talk --

9 MS. LEGRAND: Yeah, we'll talk.

10 MS. KEIL: -- about what we're doing on Monday.

11 MS. LEGRAND: Okay. Totally fine. Thank you

12 very much.

13 (Proceedings adjourned at 10:50 a.m.)

14

15

16

17

18

19

20

21

22

23

24

25
43
1 CERTIFICATE OF REPORTER

3 I, Stephanie M. Austin, RPR, CRR, an Official

4 Court Reporter for the Superior Court of the District of

5 Columbia, do hereby certify that I reported, by machine

6 shorthand, in my official capacity, the proceedings had

7 and testimony adduced upon the motions in the case of the

8 UNITED STATES OF AMERICA versus ARTURO VASQUEZ, Criminal

9 Action Number 2017 CF2 1369; UNITED STATES OF AMERICA

10 versus PHILLIP GLASER, Criminal Action Number 2017 CF2

11 1368; UNITED STATES OF AMERICA versus CHRISTIAN VALENCIA,

12 Criminal Action Number 2017 CF2 1203; and UNITED STATES OF

13 AMERICA versus MOLLY CARTER, Criminal Action Number 2017

14 CF2 1380; UNITED STATES OF AMERICA versus DANIEL MELTZER,

15 Criminal Action Number 2017 CF2 1176; UNITED STATES OF

16 AMERICA versus CALY RETHERFORD, Criminal Action Number

17 2017 CF2 1378; UNITED STATES OF AMERICA versus CHRISTOPHER

18 LITCHFIELD, Criminal Action Number 2017 CF2 1235; UNITED

19 STATES OF AMERICA versus CAROLINE UNGER, Criminal Action

20 Number 2017 CF2 1355; UNITED STATES OF AMERICA versus

21 MATTHEW HESSLER, Criminal Action Number 2017 CF2 7212; and

22 UNITED STATES OF AMERICA versus DYLAN PETROLHILOS,

23 Criminal Action Number 2017 CF2 7216, in said court on the

24 31st day of May, 2018.

25
44
1 I further certify that the foregoing 44 pages

2 constitute the official transcript of said proceedings, as

3 taken from my machine shorthand notes, together with the

4 backup tape of said proceedings to the best of my ability.

5 In witness whereof, I have hereto subscribed my

6 name, this 31st day of May, 2018.

9 ____________________________

10 Stephanie M. Austin, RPR, CRR


Official Court Reporter
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
45
Exhibit 3
1 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CRIMINAL DIVISION
2

3 ----------------------------x
:
4 UNITED STATES OF AMERICA :
:
5 versus : Criminal Action Numbers
:
6 DANIEL MELTZER : 2017 CF2 1176
CALY RETHERFORD : 2017 CF2 1378
7 CHRISTOPHER LITCHFIELD : 2017 CF2 1235
CAROLINE UNGER : 2017 CF2 1355
8 MATTHEW HESSLER : 2017 CF2 7212
DYLAN PETROLHILOS : 2017 CF2 7216
9 :
Defendants. :
10 ----------------------------x

11 Washington, D.C.
Wednesday, May 23rd 2018
12
The above-entitled action came on for
13 a hearing before the Honorable ROBERT MORIN, Chief Judge,
in Courtroom Number 315.
14
THIS TRANSCRIPT REPRESENTS THE PRODUCT
15 OF AN OFFICIAL REPORTER, ENGAGED BY THE
COURT, WHO HAS PERSONALLY CERTIFIED THAT
16 IT REPRESENTS TESTIMONY AND PROCEEDINGS OF
THE CASE AS RECORDED.
17 APPEARANCES:

18 On behalf of the Government:

19 AHMED BASET, Esquire


Assistant United States Attorney
20
On behalf of the Defendants:
21
MARK GOLDSTONE, Esq. (Daniel Meltzer)
22 SHARON WEATHER,Esq. (Caly Retherford)
MARK SWEET, Esq. (Christopher Litchfield)
23 ANDREW CLARKE, Esq. (Dylan Petrolhilos)
CHARLES MURDTER (Caroline Unger)
24 CARY CLENNON (Matthew Hessler)

25 Melissa Brock, RMR, CRR (202) 879-1084


Official Court Reporter
1
1 THE COURT: Anything else?

2 MR. SWEET: No, your Honor.

3 THE COURT: Two concepts only, educational

4 witness. No extremist type language. Those are the

5 general categories.

6 MR. BASET: I will be ordering this transcript.

7 THE COURT: Thank you. I'm sure. Okay.

8 Let me talk about -- so we have the motion to

9 suppress and then there was a recently-filed motion.

10 Have you seen the recently-filed motion? Are

11 you able to respond to that?

12 MR. BASET: I can make representations to the

13 Court.

14 THE COURT: Okay. Can you -- why don't I deal

15 with that because that might affect what we do. Hold on a

16 second. Why don't I take your representation as in

17 response to the motion.

18 MR. BASET: Sure. So, I had an opportunity to

19 speak with Ms. Kerkhoff about this, and I reviewed most of

20 these planning videos and I was present for some of the

21 hearings where these issues were discussed, so that's what

22 my representations are based off of --

23 THE COURT: Okay.

24 MR. BASET: -- at this point.

25 What I can say is this: I know that initially

48
1 the government had provided planning videos for the

2 January meeting, and Ms. Kerkhoff had represented that

3 there were two specific edits.

4 The edits pertain to one with respect to the

5 creator of the video when he was in the bathroom. There

6 was a moment where his face was visible and so that part

7 was clipped. There was another portion she had indicated

8 where the camera was panning and captured the image of the

9 undercover officer that was on scene and so that was

10 cropped.

11 And so at the last hearing where this was

12 discussed, your Honor had ordered the government to

13 disclose all of the videos in an unedited format, which is

14 what we did on April 12th.

15 In that video, in under -- in reading the Brady

16 motion, my understanding is that one of those videos of

17 the planning meeting that was provided in an unedited

18 format, reflects that the creator of this video exited the

19 planning meeting. He went and he made a phone call. And

20 it's during this phone call that he made a statement to

21 the effect of I spoke with some people or someone from the

22 IWW Union and it doesn't seem like they are aware of the

23 upper echelon or something to that effect. And --

24 THE COURT: So -- I'm sorry. This is a

25 statement by the --

49
1 MR. BASET: Creator of the video after he left

2 the planning meeting and had left for the day, it appears.

3 And he, it appears, is contacting someone from his

4 organization, at least, and I don't know specifically but

5 that's what it sounds like. And I guess --

6 THE COURT: His organization being Project

7 Paratos (sic).

8 MR. BASET: Project Paratos, correct.

9 THE COURT: Okay.

10 MR. BASET: And so what I can say is that that

11 part was cut out. It was edited and I think Ms. Kerkhoff

12 in explaining what was edited neglected to mention that.

13 I think she simply forgot to mention that.

14 What I understand in how that editing occurred

15 is that the detective in -- had cut off the end of it

16 because that was the end of any sort of planning meeting,

17 grouping or associations, and so he had left. It was done

18 from his point of view, and so he had cut it off there.

19 So, in terms of now what that statement means

20 and how that constitutes Brady, that's what I'm unclear

21 about. In reading the motion, it's not quite clear how

22 that theory supports any sort of Brady. I would also --

23 THE COURT: You were saying --

24 MR. BASET: Well, I don't know from that

25 statement what the theory of Brady is in terms of how that

50
1 tends to -- and maybe I'm not smart enough to figure it

2 out, I readily admit that, but at least it's not readily

3 apparent what that statement -- how that would tend to at

4 least for Mr. Petrolhilos, for example, whose attorney

5 filed this motion, how that would undermine his guilt in

6 terms of he's at the planning video -- planning meeting.

7 He's making statements about organizing this particular

8 Black Bloc. And so the statement by this creator I don't

9 think undercuts any of those statements from the

10 government's point of view.

11 THE COURT: Mr. Basser, don't you think -- I

12 mean, I'm not necessarily the smartest person either, but

13 you don't think the defense is entitled to that video that

14 may lead to a witness who heard statements indicating that

15 certain individuals are not familiar, not knowledgeable of

16 the quote upper echelon decisions made by the group?

17 MR. BASET: So I think within that question is

18 an assumption that those certain individuals are people

19 within this group and what that upper echelon means. I

20 just don't know what that means.

21 THE COURT: No, no. So that's the point.

22 MR. BASET: So --

23 THE COURT: The defense has the right to

24 investigate.

25 MR. BASET: And that I would agree with.

51
1 THE COURT: Okay. So why are you saying that's

2 not Brady?

3 MR. BASET: Well, let me clarify then. I don't

4 think that that --

5 THE COURT: Because this is a very, very

6 important representation your office is making. I want

7 you to think about it.

8 MR. BASET: Understood.

9 THE COURT: If you need time to consult more

10 or --

11 MR. BASET: So what I will say this -- is this:

12 That video was disclosed to the defense on April 12th.

13 That was almost two months in advance of trial.

14 In terms of their ability to investigate the

15 source of that information or what that statement means to

16 understand and place it in its proper context, I think

17 that time has existed for them to be able to do that and I

18 think we are still in advance of trial by over a week.

19 And so I think any opportunity to investigate is there.

20 THE COURT: Um-hmm.

21 MR. BASET: So I -- ultimately, the government's

22 argument is that the video was disclosed. It is in their

23 possession. They have had an opportunity to investigate

24 those statements. I think in terms of the prejudice

25 that -- is not articulated and is not clear what that

52
1 would be at this point where their meet -- statements made

2 at the meetings about the Black Bloc which is the focus of

3 the government's case in chief.

4 THE COURT: We also note Black Bloc can be both

5 violent and non violent.

6 MR. BASET: That's accurate.

7 THE COURT: That's the point.

8 MR. BASET: Yes, absolutely.

9 THE COURT: So that statement in and of itself

10 may or may not be evidence of guilt, depending on the

11 context of it.

12 MR. BASET: And -- I understand that. And if

13 there are additional questions --

14 THE COURT: So what is your -- and, again, I

15 don't -- I know you are coming in. You are

16 representing -- I don't want you personally to be in a

17 position that you are uncomfortable in, but is it your

18 position now that it is Brady and that they've had enough

19 time to investigate or that it's not Brady?

20 MR. BASET: So let me -- let me do this: Let me

21 take ten minutes, if I may --

22 THE COURT: Yes.

23 MR. BASET: -- to make sure that we are in the

24 right position.

25 THE COURT: Right. Because this is a -- you are

53
1 making these representations to the Court.

2 MR. BASET: Understood.

3 THE COURT: Thank you. Ten minutes.

4 MR. BASET: Thank you.

5 THE CLERK: Court stands in recess.

6 (Break.)

7 THE CLERK: Please remain seated and come to

8 order.

9 THE COURT: Okay. We are resuming all counsel

10 and defendants are present.

11 Mr. Basser.

12 MR. BASET: So additional representations

13 include when that particular video was reviewed, you had

14 the creator walking out of the meeting and there were

15 minutes where nothing was happening. It was just he left.

16 From the government's point of view that was the

17 end of it because it didn't incorporate or involve any

18 sort of statements that were made in a planning video. So

19 we thought it was done, I think from our prospective.

20 Now there was that statement several minutes

21 after he left that is what is being referenced here. And

22 from the government's point of view, we didn't appreciate

23 the import of that statement, especially because it's made

24 of -- by a layperson. It is an opinion of what other

25 people might know and it is based off of conversations

54
1 that were recorded and already disclosed to the defense.

2 And so, that's not an opinion that would

3 otherwise be admissible or relevant per se, and it wasn't

4 something that I think at the time the government

5 understood how this would in any way be something the

6 defense would want to further investigate.

7 Now, standing here presented with sort of the

8 context that your Honor has presented, I can see at least

9 from that point of view why it would warrant further

10 follow up.

11 Now at this point, though, it's seems as if that

12 opportunity for follow up existed when the government

13 disclosed that portion of the video in April. I

14 understand, too, and I wasn't present at this hearing but

15 that they had also requested the name of the creator of

16 who made this. And I think if I understand correctly, and

17 I maybe wrong, but that your Honor had ruled something to

18 the effect of you do have the ability to subpoena this

19 information yourself because they are a third party that

20 produced this.

21 THE COURT: Yeah. I know you weren't there but

22 that was a request -- was a request for the original

23 video.

24 MR. BASET: Understood.

25 THE COURT: I don't remember it to be a request.

55
1 And, again, the representations made by your office at

2 that point in time were they were just two cropped pieces.

3 This was not identified as a particular cropped piece.

4 MR. BASET: That's accurate.

5 THE COURT: And I thought you had said earlier

6 Ms. Kerkhoff forgot about this statement. Are you now

7 saying you didn't know about this statement because --

8 MR. BASET: So what I think I -- I think the

9 government was aware of this statement, yes.

10 THE COURT: Oh, okay.

11 MR. BASET: I think what I was saying, though,

12 at the time and I was seated, you know, in the audience.

13 I was listening to Ms. Kerkhoff's statement about what was

14 clipped and it seemed as if it just kind of came up, the

15 question of what was clipped and I think she was just

16 trying to remember what was clipped. And I -- it seems as

17 if she just inadvertently forgot --

18 THE COURT: Oh, forgot at that hearing when she

19 was --

20 MR. BASET: At that hearing because she was kind

21 of coming off the top of her head what was clipped and

22 neglected to mention that. I don't think that was

23 intentional by any stretch.

24 But that being said because this is an opinion

25 by a layperson that would otherwise be inadmissible or

56
1 irrelevant and because the basis of that opinion is based

2 on conversations that were disclosed prior to any sort of

3 editing, as I understand it, that any sort of prejudice in

4 that sense or Brady aspect of it was not readily apparent

5 to the government at the time.

6 THE COURT: Could you also respond to the

7 portion of the motion that says it was an additional video

8 posted of -- 45-minute video that the defense's impression

9 is it's from a separate individual.

10 MR. BASET: My understanding is that there are

11 three videos that I believe each one is about 17 or so

12 minutes long and so combined it's 45 minutes. Those are,

13 as I understand it, of breakout sessions that aren't part

14 of this planning meeting. They do not incorporate or have

15 any sort of statements that the government intended to use

16 at trial and they don't really discuss what is at issue in

17 this case, and that's the anti capitalist Black Bloc

18 march.

19 And so we disclosed that information back on

20 April 12th per your orders to disclose all of the video at

21 that point. So, there is 45 minutes in total in those

22 three videos.

23 THE COURT: Can I just get, again, context, your

24 understanding. There is -- is this at the same time of

25 the planning videos they were at the -- of the planning

57
1 meeting? They were breakout sessions that you have videos

2 of?

3 MR. BASET: That's correct.

4 THE COURT: And were they turned over or not

5 turned over previously?

6 MR. BASET: They were turned over on April 12th.

7 THE COURT: Okay. And did the government have

8 those, have knowledge of those --

9 MR. BASET: We did have --

10 THE COURT: -- prior to April --

11 MR. BASET: Prior to.

12 THE COURT: And maybe I was under misimpression.

13 I thought the government had represented it was turning

14 over all videos in its possession.

15 MR. BASET: And that we did on April 12th, all

16 those videos.

17 THE COURT: Okay. Maybe I'm dis --

18 misunderstanding the history of this case but I thought --

19 the Court was operating under the assumption that the

20 government was disclosing prior to April 12th all the

21 videos that it had concerning this matter except for the

22 two cropped pieces from the January meeting.

23 Did I misunderstand?

24 MR. BASET: So my understanding is what the

25 government had disclosed prior to April 12th are the four

58
1 planning videos. There was a deplorable video from a

2 different day, and there were a couple of conversations, I

3 believe, that were initially disclosed. The breakout

4 session videos were not disclosed.

5 THE COURT: And is there a reason for that?

6 MR. BASET: And it's because the government

7 didn't believe that they were relevant to this

8 investigation.

9 THE COURT: But was this at the same time of the

10 January 8th meeting?

11 MR. BASET: I believe it was. I believe that --

12 THE COURT: So --

13 MR. BASET: -- it was -- they would break out

14 into smaller sessions where they would discuss certain

15 things, but -- and then they would reconvene in a larger

16 group.

17 THE COURT: Okay. But I'm just sitting here

18 listening to this saying you don't think counsel would

19 want to investigate those videos to see whether or not

20 their client was present at a break out session --

21 MR. BASET: And so --

22 THE COURT: -- to where other matters were not

23 discussed.

24 MR. BASET: So, they weren't discussing the

25 march itself as I understand it.

59
1 THE COURT: Right. But at the same time, the

2 planning video was going on, there was breakouts. Who

3 attended those break out maybe important. I'm not

4 suggesting. I'm just suggesting as a matter material to

5 the preparation of the defense.

6 MR. BASET: So, I -- I don't know who was at

7 those planning meetings, perhaps Ms. Kerkhoff can

8 elaborate. I can't at this point.

9 THE COURT: Okay.

10 MR. BASET: But what I can also say, too, is

11 that while they reference that -- they are not being

12 referenced in terms of containing any sort of Brady

13 statements or Brady, at least, with respect to this

14 motion. I know that it's an argument that's being made.

15 THE COURT: Oh, I see.

16 MR. BASET: But there is no allegation that

17 those videos contained any Brady at this point.

18 THE COURT: That's fair enough. That's fair

19 enough.

20 Anything else?

21 MR. BASET: Nothing additional.

22 THE COURT: It's your motion, Clennon? Whose

23 motion?

24 MR. CLARKE: Your Honor, I apologize. In

25 response to the government just saying that --

60
1 THE COURT: You have to identify yourself and

2 who you represent.

3 MR. CLENNON: Cary Clennon counsel for Matt

4 Hessler. In response to the government just saying that

5 AUS Kerkhoff was just speaking, you know, off the top of

6 her head during that hearing, I would like to request

7 just -- I'm sorry, your honor, just a ten-minute recess.

8 There's actually an email in which this information was

9 set.

10 THE COURT: Okay. We've had a recess so --

11 MR. CLENNON: I understand. So there's an email

12 in which Ms. Kerkhoff says that we are providing you the

13 unedited version of the video of the -- the only thing

14 that was new was -- and I'm generalizing because I don't

15 have it in front of me -- the only thing that was new was

16 just the two parts in the beginning that your Honor is

17 speaking to.

18 There was never any mention that at the end

19 after Matt Hessler was interviewed by this undercover,

20 that there was another, you know, three minutes worth of

21 video during which there was this admission by the

22 undercover that this group was not part of the upper

23 echelon.

24 I think my motion joined by my co-counsel speaks

25 for itself and to what we are asking for here today. I

61
1 think the Brady violation is clear. At this point,

2 there's volumes and volumes and hours and hours of video

3 evidence in this case which counsel cannot go through to

4 check to see if, again, as the government has pointed out,

5 that they chose unilaterally to just not to disclose this

6 information.

7 THE COURT: No. But they have never represented

8 that with respect to any other video, any other video was

9 edited.

10 MR. CLENNON: Correct, your Honor. But if you

11 remember, during that hearing, they never disclosed that

12 there was an additional 50 minutes worth --

13 THE COURT: No.

14 MR. CLENNON: -- of it.

15 THE COURT: But there has been no suggestion by

16 anyone that they haven't provided anything but unedited

17 videos with regard to every other matter. This is the

18 only video that I'm aware of that the government has

19 indicated it edited prior to being provided to the

20 defense.

21 MR. CLENNON: There were other videos that the

22 government chose not to include in its case in chief that

23 were actually edited by Prosper (sic) or the government

24 I'm not sure but at this point, but this has been a

25 running trend throughout these proceedings that there has

62
1 been videos that have been edited. The government has

2 said, oh, there's nothing to worry about. We have taken

3 them on their word and now here we are, you know, two

4 weeks before trial.

5 THE COURT: Okay. I'm just not familiar of

6 those other incidents you.

7 MR. CLENNON: And I understand, your Honor, and

8 you know, your Honor, there's been a trial that's already

9 happened. There have been plea agreements that have

10 already been entered into. There's a trial going on

11 downstairs in this matter --

12 THE COURT: I know. I'm familiar.

13 MR. CLENNON: -- in which this video has already

14 been entered into. I think these entire proceedings have

15 been tainted by the fact that we can no longer rely on the

16 proffer of the government if she's just speaking off the

17 top of her head and not to facts in this matter.

18 I do have the email pulled up on the computer

19 from April 12th where she does not mention that this end

20 half of the video which contains the exculpatory

21 information was actually -- was identified.

22 Lastly, I would like point out that the

23 government can't just dump exculpatory evidence on the

24 defense and say, you know, go figure it out yourself.

25 I would stand on United States v. Vaughn on

63
1 that, your Honor.

2 And would your Honor like to see the email?

3 THE COURT: I'm accepting your proffer. Do you

4 have any dispute about that?

5 MR. BASET: I have actually not seen the email.

6 THE COURT: Why don't you take a look at it and

7 see if you dispute the proffer.

8 MR. BASET: If I could just read into the

9 record what that statement is.

10 In addition -- and this is an email from

11 Ms. Kerkhoff on April 12th of 2017 to counsel.

12 In addition pursuant to Judge Morin's ruling on

13 April 6th, 2018, regarding the planning meeting --

14 THE COURT: Slow down, please, Mr. Baset.

15 MR. BASET: Sure. My apologies. Plan meeting

16 videos, you will find two sub folders under the planning

17 meeting videos folder on the main page USAFS. Number one,

18 planning meeting videos unedited which contains the same

19 four videos originally posted to the planning meeting

20 videos folder without the first part of video one edited

21 out and without the cropping of the UC space at the end of

22 meeting in video three.

23 And then, number two, preplanning meeting videos

24 unedited which contains three videos, the captured

25 conversations occurring before the planning meeting.

64
1 THE COURT: Well, that's what counsel proffered.

2 MR. BASET: Yes.

3 MR. CLENNON: And, your Honor, the government

4 has also stated that the 45 minutes of video that was

5 dumped on the defense on April 12th contains no

6 exculpatory information but it actually does go with the

7 theory of the case that there were separate events being

8 planned, all of which were non violent. So for them to

9 say that that's not Brady information, is just not true

10 your Honor.

11 And, again, I'm standing on my motion. I don't

12 want to belabor the point. I think that it's clear --

13 THE COURT: So you have had this since

14 April 12th? When did you discover --

15 MR. CLENNON: Yes, sir. Yesterday morning, your

16 Honor, because I -- to my fault, I was relying on the fact

17 that I thought the only thing that was different was in

18 the beginning, and I was able to go through the entirety

19 of the video -- I think it was about a hour long between

20 the four videos -- and discover this information.

21 THE COURT: Okay. Assuming that the Court is

22 not gonna dismiss as a sanction, what is -- what is your

23 argument?

24 MR. CLENNON: I'm -- my argument is that the

25 planning meeting video in its entirety, given the issues

65
1 with do we have the entire -- well, given the fact the

2 government has represented has misrepresented to the

3 Court, I think the violation is clear, but I think the

4 only appropriate sanction is that if -- the Court is not

5 inclined to dismiss, is to not allow the government to

6 proffer any evidence about that being on January 8th.

7 THE COURT: I guess I will hear from you on

8 that, Mr. Baset. It's what I'm contemplating frankly.

9 THE GOVERNMENT: So I think that that remedy

10 would be too extreme and wouldn't be proportional to sort

11 to --

12 THE COURT: So assuming I find it to be a Brady

13 violation, what are you suggesting the remedy should be?

14 MR. BASET: There could be -- and I'm just

15 speaking off the top of my head.

16 THE COURT: Well, I don't want people -- we are

17 getting in trouble when people are speaking off the top --

18 I don't mean you personally.

19 MR. BASET: Sure. I'm a little on the spot

20 right now but --

21 THE COURT: I understand that. I want you to

22 think about --

23 MR. BASET: So I think in similar types of

24 situations what I have seen happen is where certain videos

25 were not disclosed or certain portions were not disclosed

66
1 that there would be some sort of missing evidence type of

2 instruction.

3 In other words, what that would state is that

4 this part of the video was not initially disclosed but was

5 disclosed on such and such date. I'm not sure to be

6 perfectly honest, and it's something that I would like to

7 consult, if this is where the decision is heading. But I

8 would state to that, again, this is the type of statement

9 that is speculative at this point as far as what it means.

10 And I understand that there -- they have an opportunity

11 and should have an opportunity to investigate this.

12 I think that any sort of prejudice in that sense

13 is limited. It's not a situation where the government is

14 disclosing this evidence on the day before or the day of

15 or in the middle of trial, but rather almost two months in

16 advance.

17 I understand that counsel had relied on some of

18 Ms. Kerkhoff's representations as far as what was clipped

19 and to that intent, the reason why they wanted these

20 videos as I understand it is because they believed that

21 there were other unedited or other parts of it that

22 weren't disclosed. And so it's -- in one sense they are

23 saying we wanted the time to investigate. We have

24 investigated. This is what we've discovered. And I think

25 they still have time to continue that investigation

67
1 between now and then. And the government can certainly

2 assist to whatever extent it can to facilitate that but I

3 think for your Honor --

4 THE COURT: What are you suggesting you could do

5 to assist?

6 MR. BASET: Well, I do think that we've already

7 disclosed or provided information about how we obtained

8 this video. It would at least seem to me that the person

9 or the creator of this video would be someone who would be

10 able to assist in that investigation since he's the source

11 of this comment.

12 I don't know -- as far as I know, the government

13 doesn't have the information as far as who this person is

14 or how to even get in touch with this person, but it would

15 seem to me that that would be a natural place to continue

16 this investigation.

17 I think for your Honor to sanction the

18 government at this stage with suppressing this video would

19 be too drastic of a remedy without even realizing or

20 appreciating what the import of the statement is in the

21 first place or the ability to figure that out.

22 It could be very well that after an

23 investigation, they realize that this has no

24 admissibility. That this isn't Brady, in which case a

25 video would have been suppressed that really shouldn't

68
1 have been because of an inadmissible, non-Brady statement.

2 And so I think that there should at least be some

3 investigation to reveal that. This is a critical piece of

4 evidence. I think that sanction would be too extreme for

5 this specific scenario, especially, especially where the

6 statements on that video are unedited and they speak for

7 themselves.

8 What we are talking about here are statements

9 made well after the planning. It doesn't necessarily

10 undermine what those statements are that were made by the

11 people in that -- in that meeting. What we are talking

12 about is the opinion of a layperson based off a

13 conversation that was disclosed to the defense. That

14 they've had an opportunity to investigate the basis of

15 those conversations well in advance when the initial

16 disclosures were made.

17 Because when the disclosures were made, those

18 conversations that were the basis of this layperson's

19 opinion were readily available. And so I don't think that

20 this is the type of prejudice that would warrant

21 suppressing this video, and certainly not at this stage.

22 I think it would be too premature without fully

23 determining what the import of that statement is and if it

24 truly is Brady in that sense.

25 THE COURT: Okay.

69
1 MR. CLENNON: Before your Honor rules, I just

2 want to make --

3 THE COURT: I'm not going to rule --

4 MR. CLENNON: I'm sorry.

5 THE COURT: -- today.

6 MR. CLENNON: I just want to make the record

7 clear on this issue. I think that the government is going

8 I think a little bit too far left field on what the actual

9 issue is here.

10 The only reason that we are in possession of

11 unedited videos today is because we had to file a motion

12 to compel those videos. If we never filed that motion to

13 compel, your Honor, we would never have seen these videos.

14 The government had to have been forced to hand

15 over Brady information. Not regular discovery, Brady

16 information.

17 And I think that the Court needs to understand

18 that it's not the issue of the timing. I mean, it's the

19 issue of the fact that there's kenner to the court and

20 proffer to the Court and the government has made several

21 proffers to the court as the Court has relied on those

22 proffers and we find out now that those proffers are

23 not -- that some of those proffers are just not true.

24 MR. CLARKE: If I may briefly, your Honor Andrew

25 Clarke for Matthew Hessler. I don't think the Court

70
1 should be left with the misimpression that may have been

2 unintentionally created by Mr. Baset based on a lack of

3 knowledge.

4 But he told the Court that this editing was

5 something that was accomplished at the end of the meeting

6 after the officer saw the parties leave and the officer

7 was not even present during the time that the video was

8 made.

9 THE COURT: Correct.

10 MR. CLARKE: The undercover officer cannot

11 authenticate the video. The edit that took away the

12 exculpatory statement was not made by the detective

13 because he was not there to review that portion of what he

14 saw because he wasn't present and didn't see it or hear

15 it.

16 THE COURT: I'm sorry. I'm missing that part.

17 MR. CLARKE: There's four planning meeting

18 videos. The forth video involves a separate place.

19 THE COURT: You mean the breakouts.

20 MR. CLARKE: They are not breakouts.

21 THE COURT: Okay.

22 MR. CLARKE: Actually, the planning meeting

23 video that they plan to introduce is of a breakout

24 session.

25 THE COURT: Okay.

71
1 MR. CLARKE: And that's how it's described by

2 the detective. There was a main meeting convened. They

3 broke into groups.

4 THE COURT: Okay. So what are you saying?

5 MR. CLARKE: I'm saying that the officer,

6 undercover officer, present was not physically present at

7 the time video number 4 was recorded.

8 THE COURT: This is the so-called new video?

9 MR. CLENNON: Portions of it, yes. It's --

10 THE COURT: It's described in your -- in the

11 motion as a 45 additional minutes of a video.

12 MR. CLARKE: No, that's not the new video.

13 THE COURT: Okay. That's what I'm trying to

14 understand.

15 MR. CLARKE: No. We are talking about the

16 recorded statement where the exculpatory declaration is

17 made by the so-called lay witness who remains under

18 identified.

19 THE COURT: Correct.

20 MR. CLARKE: Who used false credentials to

21 present himself as a reporter at the meeting. So we have

22 his fake name but we don't know his real name.

23 The officer was not present. The undercover

24 officer who authenticated the video for the first trial

25 was not present during the recording of video number 4 on

72
1 which this redaction was made that we are not made aware

2 of.

3 THE COURT: Was video number 4 admitted into the

4 first trial?

5 MR. CLARKE: It was not.

6 THE COURT: Oh, okay. So this is an additional

7 video.

8 MR. CLARKE: Correct. Identified as a planning

9 meeting video but it's never been authenticated. We don't

10 know who the statement is made by. Presumably it's made

11 by the person recording the video but all we have is a

12 fake reporter's name.

13 The undercover officer who authenticated the

14 planning meeting videos did not edit or review this

15 portion and, say, okay that's the end of it. They are

16 leaving, because he wasn't even there. So the edit --

17 THE COURT: I'm trying --

18 MR. CLARKE: -- the edit had to have been made

19 by someone in the U.S. Attorney's Office.

20 THE COURT: Well, the U.S. Attorney's Office has

21 represented it was the detective who was reviewing the

22 videos on their behalf.

23 MR. CLARKE: And I'm -- and I'm trying to

24 correct that misimpression. The detective was not present

25 at the time for the video was made.

73
1 THE COURT: No, I understand. As I understood

2 the representation is that judgment was made based on the

3 fact that the meeting had ended and the individual was

4 walking somewhere or something. That's what Mr. Baset

5 represented. And so the judgment was made that nothing

6 occurred after that by the detective who was editing the

7 video.

8 MR. CLARKE: And I'm trying to correct that

9 misimpression. The detective would not have been editing

10 that video because he wasn't present when it was made.

11 THE COURT: No. I don't think Mr. Baset

12 represented that the detective who was editing the video

13 was present at the meeting. Mr. Baset never represented

14 that. It was just the detective who was assisting in the

15 preparation of the video. Am I correct, Mr. Baset?

16 THE GOVERNMENT: That's accurate.

17 MR. CLARKE: And the fact that he's editing

18 video of a event that he wasn't present for lends some

19 credence to our belief that this was either slip shod or

20 deliberate.

21 THE COURT: Okay. I have your argument on that.

22 MR. CLARKE: Thank you.

23 THE COURT: Anything else? Okay.

24 So I do find that it's a Brady violation. I

25 think this information should have been turned over either

74
1 Brady or Rule 16. It should have been turned over to the

2 defense.

3 Actually it seems somewhat persuasive to me that

4 the failure to disclose was not necessarily an intentional

5 attempt to mislead the defense, particularly in light of

6 the fact that the government has disclosed and has been

7 compliant by many defense attorneys hours and hours of

8 videos and I have representation by the government as to

9 how it occurred.

10 That still doesn't negate the fact that it is --

11 should have been turned over to the defense with some

12 clarity, not under the cloud that we are going to give you

13 a redacted portion of the video and all it shows is a

14 particular thing and, in fact, there's additional

15 information.

16 I'm putting the government on notice that I'm

17 contemplating in my mind I think only one of the sanctions

18 I'm considering is not allowing introduction of the video,

19 but I will give the government an opportunity, time,

20 whatever, because you believe you can demonstrate that

21 this is an irrelevant statement or could be irrelevant.

22 I'll give you a short period of time to develop

23 what investigation or you maybe able to produce this

24 individual, make him available to the defense. That still

25 may -- I'm not suggesting that will be enough to assuage

75
1 the Court's concern, but why this statement was not turned

2 over or the entirety of the video was not turned over,

3 particularly in light of the representations that were

4 made as to what was on the video, but it's going to be a

5 short period of time. And I'm trying to give you notice

6 of what's going to happen.

7 MR. BASET: I appreciate that.

8 THE COURT: So you can adjust whatever trial

9 strategy.

10 So what I'm contemplating is giving the

11 government until next Wednesday to complete its

12 investigation. Make whatever representations can be made

13 and I will make my decision then. But I think I have

14 indicated to counsel what my decision is likely to be

15 unless I hear something different.

16 And I will go through the Lee factors as to why

17 I made the decision but, you know, I was somewhat

18 surprised by the motion because I know the diligence the

19 government has taken to provide discovery and -- okay.

20 MR. CLENNON: Just -- I'm sorry. Just for

21 clarification, when you said the video, you mean the

22 series of planning meeting videos?

23 THE COURT: I'm talking in particular about the

24 statement, the video that contains the statement that was

25 described in the motion.

76
1 MR. CLENNON: Okay.

2 THE COURT: The planning meeting videos. I mean

3 it's 45 minutes. I'm assuming defense counsel can go

4 through those videos as I understand it. I haven't heard

5 necessarily prejudice, sufficient prejudice in the Court's

6 mind to adopt a sanction concerning that -- the so called

7 45 additional minutes of videos, but I mean once you go

8 through it and - you may make additional arguments.

9 MR. SWEET: Can we just clarify. I'm still a

10 little bit confused. So is the potential sanction that no

11 video evidence of the planning meeting as a whole to be

12 admissible or is it just this portion that was not

13 produced, the statement at the very end?

14 THE COURT: No. It would be excluding the video

15 of January 8th, 2017, meeting.

16 MR. SWEET: Thank you, your Honor.

17 THE COURT: The government understood.

18 MR. BASET: I do. And is this a Brady finding

19 or Rule 16 finding, both one or the other?

20 THE COURT: Both.

21 MR. BASET: Okay.

22 THE COURT: I think I do think it's Brady. It

23 may be an unintentional Brady violation, but -- so, we

24 have left is --

25 MR. BASET: There's --

77
1 THE COURT: -- a motion to suppress.

2 MR. BASET: And, there was, I believe, a motion

3 I believe dismiss Count 11 of -- I believe that's with

4 respect to -- based off the late filing of the

5 information.

6 THE COURT: Okay. I can hear that. I think

7 Mr. Goldstone has a separate -- have you looked at his

8 case? Mr. Goldstone's client's case. I mean I'm just

9 asking. Don't you have statute of limitations problems or

10 do you because that was filed late?

11 MR. BASET: I believe technically, yes, the

12 government's position would be that he had had notice

13 previously.

14 THE COURT: You might want to check with

15 Ms. Kerkhoff because I think she -- I don't think

16 Mr. Goldstone's client had notice. I maybe wrong.

17 MR. BASET: I will doublecheck.

18 MR. GOLDSTONE: Mark Goldstone for Daniel

19 Meltzer. There's no formal notice. Ms. Kerkhoff made

20 reference to some communication she had with me --

21 THE COURT: Oh, I see.

22 MR. GOLDSTONE: -- but no formal notice.

23 THE COURT: Okay.

24 MR. BASET: And I think in that regard, the

25 notice that we had discussed was that it was initially

78
1 part of the indictment as Count 11. We had indicated --

2 THE COURT: That you would rebring.

3 MR. BASET: That we would rebring it. That it

4 was being dismissed at the time.

5 THE COURT: Are you disputing that,

6 Mr. Goldstone?

7 MR. GOLDSTONE: No.

8 THE COURT: Okay. Thank you.

9 Okay. So I have a grand jury return. I have

10 got to go to a Senate hearing this afternoon, so are you

11 all available Wednesday to come back? Am I available

12 Wednesday firs off.

13 MR. MURDTER: Next witness, your Honor.

14 MR. BASET: At the pleasure.

15 MR. SWEET: Yes, your Honor.

16 MR. ALLEN: I'm not available Wednesday.

17 THE COURT: Are you here?

18 MR. ALLEN: I'm out of the jurisdiction. I'm

19 returning Wednesday.

20 THE COURT: Thursday.

21 MR. SWEET: Yes, your Honor.

22 MR. CLARKE: Yes, your Honor.

23 MR. MURDTER: I think I will be available. I

24 just picked up a grand jury matter. I think it's set for

25 next Wednesday.

79
1 THE COURT: That's fine.

2 MR. GOLDSTONE: Are we anticipating the

3 defendants have to be here in person on that if it's an

4 evidentiary only matter?

5 THE COURT: It is -- it's a ruling on the motion

6 to suppress and a ruling on the discovery violation so I

7 think I would like the defendants here, unless --

8 presumptively I would like the defendants here.

9 MR. GOLDSTONE: All right.

10 THE COURT: Thank you. What's a good time for

11 you? We work off calendars.

12 MS. WEATHERS: I'm not available, your honor.

13 THE COURT: When?

14 MS. WEATHERS: Because --

15 THE COURT: You are not available when?

16 MS. WEATHERS: I'm not available on Wednesday.

17 THE COURT: We are not talking about Wednesday.

18 We are talking about Thursday.

19 MS. WEATHERS: I'm not available on Thursday.

20 THE COURT: Where are you?

21 MS. WEATHERS: Because, your Honor, as you may

22 recall, I had a prior detained client jury trial that was

23 moved one week ahead.

24 THE COURT: Oh, yeah, but we'll -- working

25 around your schedule. I know we can put it at 1:00 on

80
1 Thursday. I think we have about a half hour worth of

2 discussion.

3 MS. WEATHERS: So, I'm available -- I'm in

4 trial. I'm assuming I will make representations to Judge

5 McKenna. She will excuse me to come to this hearing.

6 THE COURT: I know Judge McKenna. I think we

7 will be able to work it out.

8 MS. WEATHERS: So with that caveat.

9 THE COURT: Yes. So why don't I discuss with

10 Judge McKenna whether it's better to have you here at 9:30

11 or during the day.

12 MS. WEATHERS: Of course.

13 THE COURT: Thank you.

14 MS. WEATHERS: You are welcome.

15 THE COURT: In fact, why don't we set it at

16 9:30. I'll talk to Judge McKenna.

17 MS. WEATHERS: Okay.

18 THE COURT: Thank you.

19 THE CLERK: 9:30?

20 THE COURT: Yeah, 9:30. We might be in

21 communication if that time changes but we will

22 presumptively set it at 9:30.

23 MR. BASET: Your Honor, if I may inquire.

24 THE COURT: Hold on a second. Hold on.

25 MR. BASET: And I don't know if this is

81
1 something that can be answered at this juncture, but

2 because there's an ongoing trial right now in Judge

3 Knowles' courtroom that involves this particular video --

4 THE COURT: I know. I'm receiving inquiries

5 from that trial judge. I don't -- unless you are willing

6 to accept the sanction now.

7 MR. BASET: I would rather not.

8 THE COURT: Yes.

9 MR. BASET: Okay. Just -- I thought I would

10 inquire.

11 THE COURT: I was hoping to resolve it but you

12 made an argument at the end that persuaded me that you

13 should have more time on this issue, so, I'm aware that

14 this may -- my ruling is the same issue that's being dealt

15 with by that trial judge. It's just I didn't see a way of

16 resolving it today with your representation and request

17 unless again --

18 MR. BASET: I can't think of anything off the

19 top of my head that would change your mind.

20 THE COURT: No, I'm --

21 MR. BASET: We could use the time, too.

22 THE COURT: That's what I'm saying.

23 MR. BASET: Further develop.

24 THE COURT: The trial judge is waiting to hear

25 what I'm doing and I'm sure. She's going to be

82
1 disappointed but I have to decide for the defendants in

2 this case.

3 MR. BASET: Understood.

4 THE COURT: Okay. Thank you.

5 MR. MURDTER: This courtroom, your Honor?

6 THE COURT: Yes.

7 MR. BASET: And --

8 THE COURT: Hold on one second.

9 MR. BASET: One last clarifying question, the

10 finding itself is that being made specifically against an

11 individual or the office on the whole?

12 THE COURT: No, I'm not making any against a

13 particular individual.

14 MR. BASET: Okay. Thank you.

15 THE COURT: I am not making any against any

16 particular -- I think the people who have appeared before

17 me, including you, have represented the United States

18 honorably. I accept your representations. I don't have

19 any reason to doubt any of the representations you have

20 made.

21 MR. BASET: Thank you.

22 THE COURT: And, frankly, my conclusion at this

23 time, I haven't heard from Ms. Kerkhoff, I don't have

24 any -- I'm not persuaded that any of the representations

25 she made to me was intentionally misrepresented.

83
1 MR. BASET: Thank you, your Honor.

2 THE COURT: But the net result is the same.

3 MR. BASET: Understood.

4 THE COURT: Okay.

5 THE CLERK: Ms. Meltzer, Mr. Rutherford

6 Ms. Lichfield, Ms. Unger, Mr. Hessler and Mr. Petrolhilos

7 you are receiving notice to return to court on May 31st at

8 9:30 a.m. same courtroom 315, Chief Judge Morin.

9 If you fail to appear on that date and time, you

10 subject yourself to an additional $12,500 fine, five years

11 in prison or both simply for failing to appear.

12 Do you understand the notice, Mr. Meltzer?

13 THE DEFENDANT: Yes.

14 THE CLERK: Do you understand?

15 THE DEFENDANT: I understand.

16 THE COURT: Mr. Rutherford?

17 THE DEFENDANT: Yes.

18 THE COURT: Mr. Lichfield?

19 THE DEFENDANT: I understand.

20 THE CLERK: Ms. Unger?

21 THE DEFENDANT: Yes, I understand.

22 THE COURT: Mr. Hessler.

23 DEFENSE ATTORNEY: Yes.

24 THE COURT: Mr. Petrolhilos.

25 THE DEFENDANT: Yes, I do. Thank you.

84
1 (Proceedings concluded at 1:06.)

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1 CERTIFICATE OF REPORTER

3 I, Melissa C Brock, RPR, RMR, an Official Court

4 Reporter for the Superior Court of the District of

5 Columbia, do hereby certify that I reported, by machine

6 shorthand, in my official capacity, the proceedings had

7 and testimony adduced upon the hearing in the case of the

8 UNITED STATES OF AMERICA versus CHRISTOPHER LITCHFIELD,

9 Criminal Action Number 2017 CF2 1235, in said court on the

10 23rd day of May, 2018.

11 I further certify that the foregoing 85 pages

12 constitute the official transcript of said proceedings, as

13 taken from my machine shorthand notes, together with the

14 backup tape of said proceedings to the best of my ability.

15 In witness whereof, I have hereto subscribed my

16 name, this 23rd day of May, 2018.

17

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21 Melissa C. Brock, RPR, RMR


Official Court Reporter
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86
Exhibit 4
SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA
CRIMINAL DIVISION – FELONY BRANCH

UNITED STATES OF AMERICA


Case Nos. 2017 CF2 7212
v. 2017 CF2 1235
2017 CF2 1176
MATTHEW HESSLER, 2017 CF2 7216
CHRISTOPHER LITCHFIELD, 2017 CF2 1378
DANIEL MELTZER, 2017 CF2 1355
DYLAN PETROHILOS,
CALY RETHERFORD, and Chief Judge Robert E. Morin
CAROLINE UNGER

Defendants.

DEFENDANTS CHRISTOPHER LITCHFIELD, MATTHEW HESSLER, DANIEL


MELTZER, DYLAN PETROHILOS, CLAY/CALY RETHERFORD, AND CAROLINE
UNGER’S OPPOSITION TO GOVERNMENT’S RECONSIDERATION MOTION

Defendants Christopher Litchfield, Matthew Hessler, Daniel Meltzer, Dylan Petrohilos,

Clay/Caly Retherford, and Caroline Unger (collectively, “Defendants” or “June 4 Trial Group”)

hereby oppose the Government’s Reconsideration Motion.

On January 20, 2017, thousands of concerned citizens took to the streets of the District of

Columbia to protest the incoming presidential administration. One of the many protests that

morning was the DisruptJ201 anti-capitalist march. Dressed mostly in black, protesters gathered at

Logan Circle and marched through the streets exercising their First Amendment rights. While the

overwhelming majority of protesters peacefully walked that day—including all of the Defendants

in this case who participated in the march—a handful of individuals destroyed or defaced property

along the way. Rather than identify and arrest those perpetrators, the Metropolitan Police

Department launched sting-ball grenades at protesters, doused protesters with pepper spray,

pushed protesters violently with wooden sticks, and herded protesters and even bystanders clad in

1
DisruptJ20 is an umbrella organization that planned a variety of protests on Inauguration Day.
colorful clothing. Officers even failed to follow their Standard Operating Procedures, failing to

issue warnings before deploying munitions or a formal dispersal order that would have allowed

protesters reasonable time to disperse. Officers treated the protesters who were peacefully

exercising their First Amendment rights the same as the few individuals who engaged in property

destruction, kettling and arresting over 200 individuals. Among those arrested were journalists,

legal observers, and peaceful protesters who did not participate in the destruction of property.

Ultimately, 212 individuals were indicted in connection with the anti-capitalist march.

Ignoring the fact that only a few individuals engaged in violent and destructive conduct, the

Government continued its uniform treatment and charged all the protesters with the same nine

counts, which included felony rioting, conspiracy, and several counts of felony property

destruction, among others.2 See Superseding Indictment.

The Government’s case hinged on its conspiracy charge. No one in the June 4 Trial Group

was alleged to have personally committed any acts of property destruction or violence on January

20, 2017. Rather, according to the Government, the June 4 Trial Group consisted mostly of

individuals who allegedly participated in or attended planning organizational meetings. The

Government alleged that the protester defendants, especially the planners and organizers of the

June 4 Trial Group, knew and intended for the anti-capitalist march to be violent.

During the prosecution of its case, however, the Government concealed multiple pieces of

exculpatory evidence contradicting the main thrust of its case. One notable piece of evidence that

was withheld and concealed for much of the case was a portion of the January 8, 2017 planning

meeting video, the meeting at the heart of the Government’s conspiracy theory. This undisclosed

footage, which the Government had secretly edited out before producing the video to the

2
Some protester defendants were also charged with different counts of assault on a police officer.

2
Defendants, revealed that even a member of a right-wing provocateur group who vehemently

ideologically opposed the DisruptJ20 organization, who infiltrated and surreptitiously filmed the

meeting with the sole purpose of identifying the DisruptJ20 organizers, did not believe these

Defendants knew what was going to happen on January 20, 2017. In addition, nearly an hour of

undisclosed video of this same DisruptJ20 meeting shows previously undisclosed angles and

masses of attendees, highlighting that this meeting was a widely attended event in which

participants heard about a range of non-violent protests planned for Inauguration Day. This

evidence, which was not produced to the Defendants until five days before their original scheduled

trial date, cut against the theory that the January 8 meeting was an exclusive, secretive meeting to

plan unlawful conduct. This evidence also supported the June 4 Trial Group’s theory that these

were benign planning discussions that were common for large political demonstrations. Yet

another video that the Government withheld from the Defendants revealed that the DisruptJ20

organizers actually provided de-escalation training to those interested in attending the

Inauguration Day protests. These revelations were significant pieces of evidence that would no

doubt have had a profound impact on the case had it gone forward.

In a pair of hearings on May 23 and May 31, 2018, this Court found that the Government

violated its discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963) and Superior

Court Rule of Criminal Procedure 16 by making a series of misrepresentations about its possession

and editing of relevant evidence and intentional decisions not to produce much of this evidence to

the Defendants. Balancing all of the factors, this Court sanctioned the Government by dismissing

with prejudice the charge of conspiracy to riot and prohibiting the Government from proceeding

on a Pinkerton theory of liability against the Defendants.

3
The Government now files a Motion for Reconsideration but provides no basis for this

Court to reconsider its rulings regarding the misconduct of the U.S. Attorney’s Office and the

appropriate sanction. In particular, the Government’s Reconsideration Motion fails to contest the

Court’s initial finding of a violation of the Government’s discovery obligations under Brady and

Rule 16 that the Government misrepresented the extent to which it edited exculpatory evidence

from a video of the January 8, 2017 meeting to plan the Inauguration Day anti-capitalist march

(“the Planning Meeting Video”). Nor does the Motion contest the Court’s supplemental finding of

a Brady and Rule 16 violation that the Government intentionally decided not to disclose to the

Court or produce to the Defendants all of the relevant recordings in its possession that were

obtained from Project Veritas. The Motion also does not provide any new law or evidence that

was not known at the time of the ruling. Indeed, the Motion does not provide any information at

all from the individuals who made these misrepresentations and violations.

Instead, this Motion is just a rehashing and remaking of arguments that the Government

already made or could have made during proceedings before this Court over a month ago when the

Court ruled definitively on this subject. What’s more, the Motion relies on a series of cherry-

picked—and in at least one important instance, manipulated—quotes rather than the complete

transcripts or the Court’s distinct recollection of these events. In doing so, the Government fails to

acknowledge or take responsibility for the series of misrepresentations and discovery violations

that led to its sanctioning and the dismissal of these cases. For these reasons, the Motion provides

no basis to disturb the Court’s ruling that the Government violated Brady and Rule 16 and should

be sanctioned with dismissal with prejudice of six counts. If anything, the Government’s refusal

to accept responsibility, repeated denials, and continuing pattern of misrepresentations suggest this

Court should reconsider its ruling by dismissing the entire case with prejudice.

4
I. THE GOVERNMENT HAS MADE A SERIES OF MISREPRESENTATIONS AND
DISCOVERY VIOLATIONS IN THIS CASE

Although the Government focuses its brief on one particular misrepresentation regarding

the quantity of recordings obtained from Project Veritas, that misrepresentation is actually part of

a larger pattern of misrepresentations, discovery violations, and failures to clarify the record

regarding those recordings. The Government has repeatedly misled the Court and Defendants

about the extent to which the recordings had been edited, the quantity of recordings, and even the

content and relevance of those recordings. Adding to the confusion, the Government disclosed

different information to different trial groups without communicating what it possessed and

withheld, leaving the Defendants to attempt to assemble the scattered jigsaw pieces. And at the

relevant hearings in this case, the Government had opportunities for recess to gather more

information and at times took them. Despite multiple chances, the Government failed to make

accurate representations or provide explanations for its misconduct.

A. The Government Misrepresented the Extent to Which it Edited the Planning


Meeting Video

The first misrepresentation, which led the Court to conclude that the Government had

violated its obligations under Brady and Rule 16, concerned the extent to which the Government

had edited the Planning Meeting Video. The Government relied extensively on this video in the

November 2017 Trial3 and the May 14, 2018 Trial4 to show that those defendants allegedly knew

that violence and destruction would occur and had conspired to riot. The video was expected to be

a centerpiece of the Government’s evidence against the Defendants in this case as well, especially

since these Defendants were alleged to have been the planners and organizers of the protest, and

3
Defendants Michelle Macchio, Jennifer Armento, Christina Simmons, Alexei Wood, Oliver Harris, and Brittne
Lawson (“November Trial Group”).
4
Defendants Michael Basillas, Seth Cadman, Anthony Felice, Casey Webber (“May 14 Trial Group”).

5
the Government had admitted in pretrial hearings that these Defendants had not personally

committed any acts of violence or destruction at the January 20, 2017 protest. The Government

also relied on statements from this video during pretrial hearings in this case to argue the existence

of a conspiracy that began before January 20, 2017, which provided a basis for admission as co-

conspirator statements of both the video itself and other pre-protest communications to and from

the Defendants. See Litchfield April 6, 2018 Tr. at 59:6-11; Lawson November 11, 2017 Tr. at

29:7 – 40:3.

Although an undercover Metropolitan Police Department (“MPD”) attended the January 8,

2017 meeting,5 the Planning Meeting Video was obtained by the Government from Project

Veritas, which had attended and filmed the meeting surreptitiously. Project Veritas is a right-wing

organization known for using pretexts to engage liberal activists and then manipulating and

publishing video of those interactions to further the organization’s political agenda.

Beginning with the November Trial Group, the protester defendants repeatedly challenged

the authenticity of this video and questioned whether Project Veritas or the Government edited it.

See Macchio November 28, 2017 Tr. at 59:19 – 84:14; Litchfield April 6, 2018 Tr. at 8:8 – 19:20.

Accordingly, the June 4 Trial Group filed a Motion to Compel the production of the original

Planning Meeting Video files the Government received from Project Veritas on March 30, 2018.

See Motion to Compel.

At the April 6, 2018 hearing, just as it did with the November Trial Group’s coconspirator

statement arguments, the Government disclosed two edits it made to the video, never revealing

that it had withheld footage from immediately before and after the video:

We provided to defense counsel the video. The only editing that was done by my
office was at the very beginning of the video, and it recorded in segments, and I'm

5
The undercover MPD officer did not film the meeting. His notes from the meeting consist of two paragraphs devoid
of any mention of an anti-capitalist march, violence, or destruction of property.

6
not sure why, if that's how the button camera was recording. That's common with
cameras that it records in segments. At the very beginning, it shows an individual
who's wearing the camera in the bathroom. It shows their face. We cut that part
out, and then provided everything else to defense counsel. We did crop out the
undercover officer's face, which is after the communication of planning meeting.
The camera pans around and you can see him, and the defense has the exact video
we have.

Litchfield April 6, 2018 Tr. at 9:17 – 10:3 (emphasis added).6 The Government further assured the

Court, “They have exactly what we have as I’ve described.” Litchfield April 6, 2018 Tr. at 12:3-4

(emphasis added).

Counsel for Defendant Petrohilos pressed the Court, explaining the Government’s

representation of its editing was “impossible” because if the Government only edited the

individual’s face in the bathroom, then there should be footage of the videographer exiting the

bathroom, walking to the meeting, and joining the meeting. See Litchfield April 6, 2018 Tr. at

15:8-19. Instead, the video provided to the Defendants began with the videographer seated at the

meeting. See A17_Planning Meeting Video 1.mp4., A18_Planning Meeting Video 2.mp4.,

A19_Planning Meeting Video 3.mp4., A20_Planning Meeting Video 4.mp4. The Government

remained silent, failing to admit the Defendants were correct—namely, that the Government had

in its possession a video from immediately before the Planning Meeting (the so-called “Pre-

Planning Meeting Video”). The Government also failed again to admit that it had cut the ending

of the Planning Meeting Video. Nevertheless, the Court ordered the Government to produce the

“entirety of whatever is in the government's possession.” Litchfield April 6, 2018 Tr. at 19:14-20

(emphasis added). At the time, the Defendants were eleven days away from trial.7

6
This is actually the second time the Government misrepresented its edits. At the November Trial, Detective
Pemberton testified he received the video from Project Veritas, reviewed it, and personally made these two edits and
no others. See Macchio December 11, 2017 Tr. at 31:19-13 – 32:18, 50:2 – 51:15.
7
The June 4 Trial Group was supposed to go to trial on April 17, 2018 but the Government moved for a continuance
for a fourth attempt to find an expert. See Motion for Continuance.

7
On April 12, 2018, after the Defendants continued to ask about the production of the video,

the Government emailed the Defendants that it had posted “Planning Meeting Videos – unedited”

and claimed to have complied with the Court’s Order. See April 12, 2018 Kerkhoff Email. The

Government’s email made no mention that the unedited versions of the Planning Meeting Videos

contained new footage at the end of the video. Additionally, for the first time, the Government

also revealed that it had in its possession and was producing “pre-planning meeding [sic] videos –

unedited” to USAfX. April 12, 2018 Kerkhoff Email. Without explaining why these videos had

not been produced previously, the Government simply stated that the production “contain[ed]

three videos that capture conversations occurring before the planning meeting.” April 12, 2018

Kerkhoff Email.8

1. Unedited Planning Meeting Video

When the Government produced the unedited version of Project Veritas Planning Meeting

Video on April 12, 2018 unbeknownst to the Defendants, the last four minutes and 23 seconds of

produced footage were new. During this portion of the video, the Project Veritas videographer

exits the building and makes a call to one of his cohorts, reporting, “I was talking with one of the

organizers from the IWW and I don’t think they know anything about any of the upper echelon

stuff.” FNQI0873_20130511210716.MOV at 12:38 (emphasis added). Because the Government

failed to identify this new portion of the video, the Defendants did not find this exculpatory

evidence until May 22, less than two weeks before trial, as they were preparing for the May 23

trial readiness hearing and the June 4 trial. Litchfield May 23, 2018 Tr. at 65:13-20 (“I was

relying on the fact that I thought the only thing that was different was in the beginning . . . .”).

8
The Government’s initial redacted production of January 8, 2017 video totaled one hour, three minutes, and 52
seconds. The Government’s April 12, 2018 unredacted production of January 8 video totaled two hours, one minute,
and 56 seconds.

8
Upon discovery of the new material, the Defendants immediately filed a Motion for Sanctions and

Dismissal. See Motion for Sanctions and Dismissal.

Since the Defendants filed that Motion, the Government has struggled to explain the reason

why it had misrepresented the edits to the Planning Meeting Video. And since the Defendants’

discovery of this statement, the Government’s position about its knowledge of the clip and who

within the Government edited the clip has changed. Initially, the Government represented to the

Court that Metropolitan Police Detective Gregg Pemberton had edited the “upper echelon”

statement out of the video and that Assistant U.S. Attorney Jennifer Kerkhoff knew this edit

occurred, but that she simply forgot to mention it to the Court and Defendants:

MR. BASET: And so what I can say is that that part was cut out. It was edited and I
think Ms. Kerkhoff in explaining what was edited neglected to mention that. I think
she simply forgot to mention that. What I understand in how that editing occurred is
that the detective in – had cut off the end of it because that was the end of any sort
of planning meeting, grouping or associations, and so he had left. It was done from
his point of view, and so he had cut it off there.

Litchfield May 23, 2018 Tr. at 50:10-18. After a recess, specifically granted to give Government

counsel an opportunity to consult with the U.S. Attorney’s Office given the importance of the

representations that were being made, the Government clarified that the Government was aware of

the “upper echelon” statement when it made the edits, but did not appreciate the importance of the

statement when it had edited it:

MR. BASET: So additional representations include when that particular video was
reviewed, you had the creator walking out of the meeting and there were minutes
where nothing was happening. It was just he left. From the government’s point of
view that was the end of it because it didn’t incorporate or involve any sort of
statements that were made in a planning video. So we thought it was done, I think
from our prospective [sic]. Now there was that statement several minutes after he
left that is what is being referenced here. And from the government’s point of
view, we didn’t appreciate the import of that statement, especially because it’s
made of – by a layperson.

Litchfield May 23, 2018 Tr. at 54:12-24 (emphasis added). When the Court asked Mr. Baset to

9
clarify whether Ms. Kerkhoff knew at the time of the misrepresentation that the statement had

been edited out or merely that the end of the video had been edited, Mr. Baset confirmed the

Government was aware of the statement at the time of the editing:

THE COURT: And I thought you had said earlier Ms. Kerkhoff forgot about this
statement. Are you now saying you didn't know about this statement because --

MR. BASET: So what I think I -- I think the government was aware of this
statement, yes.

Litchfield May 23, 2018 Tr. at 56:5-9.

The Court concluded the May 23, 2018 hearing by finding the Government violated Brady

and Rule 16 by (1) withholding the Planning Meeting Video and (2) failing to identify the

Planning Meeting Video in its Court-ordered production. Litchfield May 23, 2018 Tr. at 74:24 –

75:2, 75:10-15. In other words, the edited portion at the end of the Planning Meeting Video

“should have been turned over to the defense” “with some clarity, not under the cloud that we are

going to give you a redacted portion of the video and all it shows is a particular thing and, in fact,

there’s additional information.” Litchfield May 23, 2018 Tr. at 75:1-2, 75:10-15. The Court did

not decide if the Government acted intentionally but seemed inclined to find it did not because it

believed “the government has disclosed and has been compliant by many defense attorneys hours

and hours of videos and [the Court has] representation by the Government as to how it occurred.”

See Litchfield May 23, 2018 Tr. at 75:3-9; see also Litchfield May 23, 2018 Tr. at 77:22-23 (“I

think I do think it’s Brady. It may be an unintentional Brady violation.”).9

One week later, in its May 30, 2018 Opposition to Defendants’ Motion for Sanctions and

9
After further consideration, at a pre-trial hearing in a parallel case, the Court determined that the editing was
unintentional given how open it perceived the Government had been with discovery. See Vasquez May 29, 2018 Tr.
at 37:25 – 38:6 (“I have no information that it was intentionally done by the Government, In other words, the
Government has been very robust in its discovery and the idea that it would splice out this one little piece that is, I
don't want to say inaudible, but after the video is completed and it's just the audio that's recorded, I don't think is
persuasive.”).

10
Dismissal, the Government backtracked from its earlier acknowledgements and refused to concede

that the failure to disclose or produce the edited statement was a violation of Brady and Rule 16—

even though the Court had already found that such violations had occurred. The Government

explained how it intentionally clipped the end of the Planning Meeting Video to format it for

production (something it did not have to do with any of the hundreds of other videos it produced),

but claimed it had not realized it had edited out anything “substantive”:

The decision to clip the end of the video was made after having watched the video
creator leave the church, zip his coat over the camera lens, and walk for several
seconds without saying a word. The video was therefore clipped after the planning
meeting was completed and once the creator left the church since it appeared there
was no additional substantive records.

Opposition to Motion to Dismiss at 3.

Now in its Reconsideration Motion, the Government again changes its story and backtracks

even further on its earlier admissions of responsibility. Buried in a footnote, the Government

asserts for the first time that “the assigned prosecutor was unaware of the edit and statement until

it was raised” by the June 4 Trial Group because “[o]nce the videographer left the January 8

planning meeting and zipped up his coat, the assigned prosecutor believed there was nothing else

on the video and stopped watching.” Reconsideration Motion at 10 n.6. It also asserts, for the first

time, that “government counsel”—not Detective Pemberton—“made an unintentional third ‘edit’

by stopping the conversion process when the videographer left the meeting.” Reconsideration

Motion at 10 n.6.10 The Reconsideration Motion makes no mention of whether anyone else at the

Government knew the statement had been edited out.

10
Detective Pemberton testified in the November Trial that he received the video from Project Veritas, reviewed it,
and personally made the two disclosed edits and no others. See Macchio December 11, 2017 Tr. at 50:6-25.

11
2. “Pre-Planning Meeting” Video

The Government has also failed to disclose that it possessed video footage from

immediately before the Planning Meeting Video. The April 12, 2018 production, which occurred

almost 15 months after the Government charged the Defendants, included, for the first time, 53

minutes and 41 seconds of new video filming what the Government labeled a “Pre-Planning

Meeting.” Although the Government has tried to characterize this as a separate video of a separate

event, the video was in fact filmed by the same person (“Matt” from Project Veritas), using the

same button camera, on the same day (January 8, 2017), in the same location (the basement of St.

Stephen’s Church), at the same event (a DisruptJ20 organizational meeting) as the Planning

Meeting Video. The video also shows some of the same people who appear in the Planning

Meeting Video. It simply occurs immediately before the participants in the meeting broke out into

smaller groups for discussions of specific DisruptJ20 events, among which was the discussion in

the Planning Meeting Video.

Significantly, the Pre-Planning Meeting Video contains a statement by Defendant

Petrohilos, who informed everyone of when and where to meet and the purpose of the “anti-

capitalist black bloc march”:

Unidentified Speaker: “We have an anti-capitalist black bloc march… which Dylan
will talk about”

Defendant Petrohilos: “Hey, I’m over here!”

* * *

Defendant Petrohilos: “Hi everyone! At 10 AM at Logan Circle, there’s going to


be a mobile anti-capitalist bloc, that’s gonna be, hopefully, to probably like, disrupt
the business as usual in downtown DC that day, and help like continue to make this,
uh, the city into a clusterfuck that day. ”

Crowd: Woos and cheers.

Unidentified Speaker: “Location?”

12
Defendant Petrohilos: “Location is 10am Logan Circle”

Unidentified Speaker: “13 and O Northwest”

Defendant Petrohilos: “Yes, 13 and O Northwest for y’all that do not know. And
the goal will be to like [incoherent remark] march around the city, trying to
continue to help shut the city down that day, and have another level where we can
kind of like build mass resistance to Trump and the capitalist system that we live
in.”

FNQI0873_20130511191053.MOV at 13:05; FNQI0873_20130511192859.MOV at 10:23.

At the May 23, 2018 Brady violation hearing, the Government explained it did not disclose

the Pre-Planning Meeting Video “because the government didn’t believe that they were relevant to

this investigation,” incorrectly stating that the Pre-Planning Meeting Video was not “discussing

the march itself.” Litchfield May 23, 2018 Tr. at 59:3-16, 59:24-25. Nonetheless, the Court

suggested this video was subject to disclosure under Brady. See Litchfield May 23, 2018 Tr. at

60:1-5 (“But at the same time, the planning video was going on, there was breakouts. Who

attended those break out [sic] maybe important. I’m not suggesting. I’m just suggesting as a

matter material to the preparation of the defense.”).11

B. Misrepresentations about Other Project Veritas Recordings in the


Government’s Possession

Contrary to the position it now takes, the Government also repeatedly misrepresented to

this Court and the June 4 Trial Group whether it had other relevant Project Veritas recordings in its

possession. At the beginning of the April 6, 2018 hearing on the Defendants’ Motion to Compel,

the Court clarified the scope of the Motion to Compel discovery “primarily has to do with the

proffer of exhibit –of a video of the planning meetings.” Litchfield April 6, 2018 Tr. at 8:8-13

11
At one point in this hearing, the Government erroneously, and confusingly, described the originally produced video
as the “planning meeting” and the later-produced Pre-Planning Meeting Video as “breakout sessions.” Litchfield May
23, 2018 Tr. at 57:19 – 58:6. This led to the Court adopting the phrase “breakouts” when it addressed whether the
Government should have produced the Pre-Planning Meeting Video at the beginning of discovery.

13
(emphasis added). The Court then made a broader inquiry: “[D]o you mind if I get the

government’s position on what they have and what’s available to them or not before you argue?”

Litchfield April 6, 2018 Tr. at 8:14-16 (emphasis added). In response, the Government stated:

“As outlined and as testified to by the detective during the first trial, the
government – the Metropolitan Police Department requested from a number of
sources where we got information they may have videos, such as news
organizations or in this case, the Veritas group that we had observed portions of
edited video. Detective Cumberson [sic] contacted the group and asked if they
would be willing to provide unedited video. They provided unedited video. We
posted the video. It’s not the original. We did not have a witness. We did not take
any testimony.”

Litchfield April 6, 2018 Tr. at 8:18 – 9:2 (emphasis added).

At the April 6 hearing, Counsel for Defendant Hessler continued to press the issue,

requesting the “original video files that were introduced to the Government.” Litchfield April 6,

2018 Tr. at 12:7-9. The Court, unaware of the existence of additional video files, pushed back.

MR. CLENNON: Well, Your Honor, I think that we're entitled to the original video
files that were introduced to the government.

THE COURT: You're misunderstanding what the government is saying. They


have [been] representing that those have been produced to you. Am I
misunderstanding what the government's saying? They've indicated that they've
produced that to you. Now, if you're talking about the original, they appear to be
in the possession of a third party, unless I'm misunderstanding something.

Litchfield April 6, 2018 Tr. at 12:7-17 (emphasis added). The Government remained silent, failing

to correct the misunderstanding that it in fact possessed many more Project Veritas recordings.

Expressing its faith in the Government’s representations, the Court nevertheless ruled broadly to

ensure that the Defendants would receive all of the Government’s video evidence:

THE COURT: I'm going to order the uncropped or the cropped portions be turned
over to the defense. And again -- let me just put a formal order here and it's not to
suggest -- I doubt the government's representations. It's -- you are officers of the
Court, but I am ordering you, the entirety of whatever is in the government's
possession to be turned over to the defense.

Litchfield April 6, 2018 Tr. at 19:14-20 (emphasis added).

14
At the May 23, 2018 Brady violation hearing, the Government again misled the Court and

Defendants as to how many Project Veritas videos it had in its possession and whether they had all

been produced. When the Government explained to the Court that it had waited until April 12 to

produce the Pre-Planning Meeting Video, the Court asked for confirmation that the Government

had produced all videos in its possession:

THE COURT: And maybe I was under misimpression. I thought the government
had represented it was turning over all videos in its possession.

MR. BASET: And that we did on April 12th, all those videos.

THE COURT: Okay. Maybe I'm dis -- misunderstanding the history of this case but
I thought -- the Court was operating under the assumption that the government
was disclosing prior to April 12th all the videos that it had concerning this matter
except for the two cropped pieces from the January meeting. Did I
misunderstand?

MR. BASET: So my understanding is what the government had disclosed prior to


April 12th are the four planning videos. There was a deplorable video from a
different day, and there were a couple of conversations, I believe, that were initially
disclosed. The breakout session videos were not disclosed.

Litchfield May 23, 2018 Tr. at 58:17 – 59:4.12 The Government again did not reveal that it had 69

additional recordings from Project Veritas in its possession that it had not previously disclosed.

At the conclusion of the May 23, 2018 hearing, after finding that the Government’s

withholding of the “upper echelon” statement violated Brady and Rule 16, the Court gave the

Government one week to “demonstrate that this is an irrelevant statement or could be irrelevant . .

. . or you may be able to produce this individual, make him available to the defense.” Litchfield

Litchfield May 23, 2018 Tr. at 75:19-24; see also Litchfield May 31, 2018 Tr. at 35:19-22 (“Well,

the Court did find previously a Brady violation, but what the Court indicated, at that time, was the

defense had a right to that information so they could conduct an appropriate investigation.”).

12
The “four planning videos” refers to the one Planning Meeting Video, which was split into four segments for
production purposes.

15
Allowed the opportunity to investigate, the Defendants discovered additional relevant facts.

See Litchfield May 31, 2018 Tr. at 35:22-25 (“And as with any investigation, additional facts can

be revealed. And that’s what happened with regard to the Court’s ordering of the disclosure and

the finding of the Brady violation.”). At the Court’s suggestion, the Government made the former

undercover Project Veritas videographer, “Matt,” who recorded the Planning Meeting Video and

Pre-Planning Meeting Video, available for a brief interview. During the interview, the Defendants

learned a plethora of helpful information, including:

 Matt’s goal was to identify the organizers of the DisruptJ20 protest.

 Matt’s “upper echelon” comment referred to the Industrial Workers of the World

Union (“IWW”) members who he spoke with, including Defendant Hessler, and

Matt meant that these IWW members were unaware of who planned DisruptJ20.

See Basillas May 29, 2018 Tr. at 9:16-20.

 As he left the January 8, 2017 meeting, Matt did not have the sense that

participants intended to engage in property damage on January 20. See Basillas

May 29, 2018 Tr. at 9:23-25.

 Project Veritas had eight individuals infiltrate various DisruptJ20 meetings. See

Basillas May 29, 2018 Tr. at 9:6-8.

 Matt attended several DisruptJ20 planning meetings, including the January 14

action camp at American University. See Basillas May 29, 2018 Tr. at 10:13 –

11:14.

 Matt did not recall any property damage discussion at any of the meetings he

attended. See Basillas May 29, 2018 Tr. at 10:15-19.

 Matt simultaneously recorded every meeting he attended with at least two,

16
sometimes three, recording methods. See Basillas May 29, 2018 Tr. 12:5-11. He

always used a button camera and an auxiliary audio recording device. See Basillas

May 29, 2018 Tr. 12:8-10. The latter is highly relevant as it may have picked up

audio that is otherwise indiscernible in the button camera footage the Government

produced.

 Matt gave all his recordings and related notes to Project Veritas, and thus no longer

had access to these materials. See Basillas May 29, 2018 Tr. 12:21-22.

 Matt spoke with Project Veritas members who said Project Veritas would give

these recordings to law enforcement. See Basillas May 29, 2018 Tr. 12:21 – 13:2.

Despite this helpful information, Matt was not entirely forthcoming. He refused to identify

relevant Project Veritas individuals. See Basillas May 29, 2018 Tr. 9:5-8, 12:21-24. He also did

not have access to his Project Veritas email because he no longer worked for the organization.

On May 29, 2018, the May 29 Trial Group13 informed the Court of these findings. The

Court was surprised to learn that Project Veritas may have been involved with law enforcement,

specifically citing the Government’s April 6 representations:

THE COURT: I had a specific conversation with the Government concerning, for
example, the original videos from Project Veritas . . . . [with] the June 4th trial
group. And I asked specifically - - paraphrasing, as I understood it, Project Veritas
was just a third party not related to law enforcement. And I specifically asked, I
believe, whether or not Project Veritas was involved or working with law
enforcement at the time . . . . I believe there was an answer no, which is why I
suggested that the Government was not responsible for producing the original
videos.

Vasquez May 29, 2018 Tr. at 32:11 – 33:2, 34:20 – 35:8. Upon learning the U.S. Attorney’s

Office in fact possessed additional Project Veritas recordings it had not previously disclosed, the

13
Defendants Arturo Vasquez, Phillip Glaser, Christian Valencia, and Molly Carter (“May 29 Trial Group”).

17
Court requested a proffer of these videos and why there were not produced. See Vasquez May 29,

2018 Tr. at 140:20-22, 141:5-7 (“I wasn't aware that Project Veritas was delivering to your office.

Maybe I misunderstood what you just said. . . . obviously tomorrow I’d like to have an accounting

of what the videos were and why there weren't included in discovery.”).

The next day, the Government submitted the Court-requested proffer.14 The email, which

was drafted by Ms. Kerkhoff and submitted to the Court by Assistant U.S. Attorney Brittany Keil,

stated: “Detective Pemberton received a hard drive from Veritas and we (Detective Pemberton and

I) reviewed the videos and audio recordings that were provided.” May 30, 2018 Keil Email. The

email explained the Government received seven total videos from the January 8, 2017 meeting, but

remained silent about the editing of the Planning Meeting Video and delayed production of the

Pre-Planning Meeting Video. See May 30, 2018 Keil Email. It identified a staggering total of 66

video and three audio undisclosed recordings. See May 30, 2018 Keil Email.

The Court heard argument about these additional recordings at the May 31, 2018 Brady

sanctions hearing. The Court informed the Government that this Brady issue of additional

recordings is “not distinct” from the Brady issue of editing out exculpatory evidence from the

Planning Meeting Video. See Litchfield May 31, 2018 Tr. at 15:21 – 16:11. The Government

represented to the Court that it was “prepared to proceed today with the arguments about Brady

and why the case should be dismissed without prejudice.” Litchfield May 31, 2018 Tr. at 11:1-13.

Even after taking a break to make “one final consultation” before arguments, the Government

ultimately “offered no explanation as to why it did not appraise the Court of the existence of these

additional videos.” Litchfield May 31, 2018 Tr. at 11:3-18, 32:19-21, 36:2-4 (emphasis added).

14
The Government only copied the May 29 Trial Group on the email, even though the June 4 Trial Group had a
hearing on the same issues the next day.

18
The Court reminded the Government that it had “left a clear impression that there was only

one video received by Detective Pemberton.” Litchfield May 31, 2018 Tr. at 32:19-21. The Court

continued to find:

And the Court’s memory and the reading of the transcript is, the Government left
the Court and the parties with the distinct impression that there were no additional
videos other than what had been previously disclosed. And we come to find out,
there are additional videos, in the Court’s mind, that would be relevant to the
conduct of any investigation of a competent defense counsel.

With regard to the alleged videos of the action camps, the defendant could be present
or not present, each of which would be relevant to any defendant’s defense of
conspiracy. And it’s hard to put the defense in a position to make them whole.

I do think it’s a serious violation. It was intentional in the sense that the
Government made intentional decisions that it made not to disclose.

I’m not prepared to find that it was necessarily malevolent, but counsel before me
is not able to make representations, so I can’t make a complete decision with regard
to that.

Litchfield May 31, 2018 Tr. at 36:5-24 (emphasis added). The only possible basis left

open for a “complete decision” was for an explanation from Ms. Kerkhoff, the prosecutor

who “made personally to this Court” the representations at issue, because the counsel

present were “not able to make representations” despite declaring they were “prepared to

proceed” with arguments. Litchfield May 31, 2018 Tr. at 11:11-13, 32:18-24, 36:21 –

37:2. Nonetheless, the Court sanctioned the Government by dismissing the conspiracy

count with prejudice and prohibiting the Government from “proceed[ing] on a Pinkerton

theory,” for failing to turn over a trove of recordings. Litchfield May 31, 2018 Tr. at

37:10-14. Thus, the Court terminated this case, dismissing six counts with prejudice and

accepting the Government’s request to dismiss the remaining counts without prejudice.

19
C. Misrepresentations About the Action Camp Videos

In addition to misrepresentations about the editing and existence of relevant videos, the

Government has misrepresented to the Court the existence and relevance of video related to the

DisruptJ20 “Action Camp,” an event held at American University and other locations in

Washington, DC during January 14-16, 2017 to educate and prepare individuals who were

interested in participating in the anti-capitalist march and other DisruptJ20 protests on and around

Inauguration Day.

The Government designated a January 14, 2017 statement in its coconspirator designations.

See Coconspirator Designations at 2-3; Amended Statement Designations at 4. Of all the

coconspirator statements the Government designated, this is the only statement in which a

participant allegedly was confrontational. See Coconspirator Designations; Amended Statement

Designations. This is also one of the only two statements in which the Government failed to

identify who was present.15 See Coconspirator Designations; Amended Statement Designations.

The Government’s designation vaguely stated: “Participants and organizers expressed intent to be

non-violent but confrontational with counter-protesters.” Coconspirator Designations at 2-3;

Amended Statement Designations at 4.

At the April 6, 2018 hearing, the parties argued about this January 14 coconspirator

statement and the Government misrepresented to the Court that there were no videos from the

Action Camp.16 See Litchfield April 6, 2018 Tr. at 80:15 – 85:21. The Government explained that

15
The Government only failed to identify who was present for the January 14 and January 18 statements.
Coconspirator Designations; Amended Statement Designations. Conveniently, these are also the only two statements
allegedly involving discussion of property damage. Coconspirator Designations; Amended Statement Designations.
16
The Government contends that these action camp videos are “recently disclosed.” Reconsideration Motion at 12
n.10. To clarify, the Government has not produced these videos to the June 4 Trial Group or any protester defendants
with pending cases before the Court; the Government has merely acknowledged its possession of these videos.
Moreover, the Government represented to the Court at the May 31 hearing that “from this point, we’re not intending to
use any sort of video, any sort of statements elicited from any videos used by Project Veritas.” Litchfield May 31,
2018 Tr. at 10:18-20.

20
the January 14 coconspirator statement designated as a “Spokes Council Meeting” was in fact “the

action camp.” Litchfield April 6, 2018 Tr. at 83:23. Fleshing out the difference between the

spokes council meeting and what the undercover attended, the Court clarified: “he attended, for

lack of a better word, a premeeting of the spokes-council.” Litchfield April 6, 2018 Tr. at 84:9-10.

The Government confirmed, “Correct, he was at the action camp.” Litchfield April 6, 2018 Tr. at

84:11.

In response to the Defendants’ foundational concerns about the January 14 coconspirator

statement, the Court asked whether any recording of this meeting exists. Instead of disclosing that

it had 35 Action Camp videos, the Government told the Court that there were no videos:

THE COURT: So is there – is there a video or a tape of this or what is there?

MS. KERKHOFF: No, your honor. The officer attended. The officer reported
back to his officials. This is in part where – as there was testimony, they received
information from their undercover in advance of January 20th, that the individuals
were anticipating breaking property during the anticapitalist block, and it is
documented in his after-the-fact notes that he took.

THE COURT: So live testimony?

MS. KERKHOFF: Correct. It’s live testimony. It’s like most of what we have
everyday in this courthouse.

Litchfield April 6, 2018 Tr. at 85:10-21 (emphasis added). The Court then requested “a specific

proffer as to what the officer’s going to testify to, vis-à-vis statements made by home [sic] to the

extent he can identify them as coconspirators who were indicted.” Litchfield April 6, 2018 Tr. at

88:17-24. It specifically directed the Government to disclose Brady material:

THE COURT: For example, Ms. Kerkhoff, if there were statements about
nonconfrontation, nonviolence that I mean, obviously, I’m not telling you
anything new, but –

MS. KERKHOFF: Yes, and I did flush that out with the undercover before I did
this, and his – he said – when he says nonviolence but confrontation, he’s referring
specifically to the discussion about how to act with counterprotesters, not about
breaking, but that they questioned, would we go out and start effectively punching

21
people or would we -- we’ll be in their face but not assaultive until they get
assaultive with us.

THE COURT: Right. I’m just saying from the Court’s point of view, the entire
context of what he overheard has to be provided to the defense.

Litchfield April 6, 2018 Tr. at 90:3-16.

With five days to confirm and further develop its representations about this January 14

statement, the Government provided a lengthy proffer at the April 11, 2018 hearing. Litchfield

April 11, 2018 Tr. at 8:13 – 15:2. Confusingly, Ms. Kerkhoff vacillated between whether the

statement was made at the Action Camp or at a separate pre-spokes council meeting. Litchfield

April 11, 2018 Tr. at 8:8 – 15:2.17 She also failed to correct her prior misrepresentation and

disclose the Government’s possession of 35 action camp videos. Despite the Court’s guidance to

disclose Brady material, Ms. Kerkhoff also omitted the Government’s possession of a January 14

Action Camp video of a de-escalation workshop. Because of these omissions, the Government left

the Court and Defendants with the impression that it possessed no Action Camp videos or any

Brady material about this event.

At the May 14 Trial, Officer Adelmeyer played a critical role, offering substantive

testimony about the purpose of the Action Camp and statements made by attendees: “They were --

DisruptJ20 was sponsoring what was called an action camp at American University and they

basically set out a - - what they label as training classes for people who are wanting to participate

in the disruptions occurring on and during the inauguration.” Basillas May 21, 2018 Tr. at 159:21-

25. He proceeded to testify about other meetings where participants discussed property

destruction, “violent behavior,” and “[getting] in [peoples’] faces.” Basillas May 21, 2018 Tr. at

163:6, 163:14. The Government planned to introduce similar evidence in the June 4 Trial. See

17
Notably when the Court asked Ms. Kerkhoff to “describe the nature of this event on January 14th,” Ms. Kerkhoff
described one overarching January 14 event. Litchfield April 11, 2018 Tr. at 12:13-24.

22
Coconspirator Designations at 2-3.

On May 30, 2018, the Government submitted the Court’s requested “accounting” of

Project Veritas recordings. Ms. Kerkhoff revealed the Government had 69 undisclosed Project

Veritas recordings including 35 videos from the January 14-16, 2017 Action Camp. May 30, 2018

Keil Email. Indeed, this was the first time that the Government admitted it received extensive

videos of the Action Camp from Project Veritas. May 30, 2018 Keil Email. At least one of these

videos clearly contradicted Officer Adelmeyer’s testimony and undermined the Government’s

allegations that the Defendants intended to commit violence. According to Ms. Kerkhoff’s

summary, the video showed a January 14 “workshop [that] discusses de-escalation techniques and

engages in role-playing on how to de-escalate.” May 30, 2018 Keil Email.

At the May 31 Brady sanctions hearing, the Government had no explanation for why these

recordings were not previously disclosed to the Court. Instead, the Government attempted to

downplay the significance of the Action Camp videos. It falsely represented to the Court, “While

Officer Adelmeyer has testified that he attended an action camp, there’s nothing of substance that

he testified to that went to the conduct at issue.” Litchfield May 31, 2018 Tr. at 30:11-14.

II. THE GOVERNMENT HAS PROVIDED NO BASIS TO EVEN CONTEMPLATE A


RECONSIDERATION

The Court should deny the Motion because the Government has provided no ground for

this Court to even contemplate reconsideration of its rulings. The Government misstates the

Court’s findings, has already exhausted its opportunities to address the issue, and fails to provide

any basis for reconsideration of the Court’s findings or ruling. Although this Court has the

inherent authority to decide a reconsideration motion, it is not required to “give the matter full de

novo review as if the original motion itself were before” it. Perry v. Sera, 623 A.2d 1210, 1218

(D.C. 1993). Reconsideration is appropriate when the moving party introduces new facts that

23
were (1) unknown at the time of the original decision and (2) material enough to warrant

reconsideration. See Whitaker v. United States, 616 A.2d 843, 849 (D.C. 1992) (explaining trial

judge denied motion for reconsideration because the new facts presented were “hardly dispositive”

to the outcome of the case).

A. The Government Has Misstated the Court’s Findings

The first problem with the Government’s Motion for Reconsideration is that it misstates

the Court’s findings and thereby seeks reconsideration for a finding that never specifically

occurred. The Government requests that the Court reconsider the “finding that government

counsel intentionally misrepresented that ‘there was only one’ Project Veritas-created video

provided to MPD Detective Greggory Pemberton.” Reconsideration Motion at 16. There is no

such finding in either the May 23, 2018 or May 31, 2018 hearing.

It appears the Government has conflated two distinct findings from May 31, 2018: (1) on

April 6, 2018, the Government “left a clear impression that there was only one video received by

Detective Pemberton” and (2) “the Government made intentional decisions . . . not to disclose”

that it had additional videos. Litchfield May 31, 2018 Tr. at 32:19-21, 36:18-20. The Court’s

finding that the Government acted “intentionally” pertained to its decision not to disclose its

possession of 69 additional Project Veritas recordings, not its April 6 misrepresentation that

Detective Pemberton only received one video. Ultimately, though, the Court’s ruling was not

based on whether the Government had represented that there was one video or a handful of videos

received from Project Veritas. The Court’s ruling was based on the conclusion that the

“Government left the Court and the parties with the distinct impression that there were no

additional videos other than what had been previously disclosed. And we come to find out, there

are additional videos, in the Court’s mind, that would be relevant to the conduct of any

investigation of a competent defense counsel.” Litchfield May 31, 2018 Tr. at 36:6-12.

24
There was also nothing “preliminary” about the Court’s ruling on May 31, 2018, as the

Government now characterizes it. See Reconsideration Motion at 12. The Court’s rulings on May

31, 2018 were final in every sense—after two hearings and a full written briefing on the subject,

the Court determined that a violation of Brady and Rule 16 had occurred, the Court issued a

sanction, and the Court dismissed some of the charges with prejudice as a sanction. Indeed, the

Government ensured that the rulings were final in the same hearing when it requested that the

remaining charges be dismissed without prejudice, thus ending the case entirely.

B. The Government Has Had Multiple Opportunities to Clarify the Record and
Explain Itself

The second problem with the Government’s request for reconsideration is that it has

already had multiple opportunities to explain itself and failed to completely and accurately do so

each time. As discussed above, during the April 6, 2018 trial readiness hearing the Government

first made the misrepresentations regarding the extent to which it had edited Project Veritas videos

and then the existence of other relevant Project Veritas videos that it had in its possession. At

several points during that hearing, the Defendants challenged these representations and the Court

inquired whether the Government had made additional edits to the videos, had additional videos

from the same day, or had video of the Action Camp. See, e.g., Litchfield April 6, 2018 Tr. at

15:8-19 (Defendants asserting that the Government’s representations were “impossible”);

Litchfield April 6, 2018 Tr. at 8:14-16 (Court asking Government: “[D]o you mind if I get the

government’s position on what they have and what’s available to them or not before you argue?”).

Throughout this hearing, the Government affirmatively misrepresented what it had

produced. See Litchfield April 6, 2018 Tr. at 9:17-25 and 10:1-3 (“[T]he defense has the exact

video we have.”); Litchfield April 6, 2018 Tr. at 12:3-4 (“They have exactly what we have as I’ve

described.”). This led the Court to push back on further challenges by the Defendants. See, e.g.,

25
Litchfield April 6, 2018 Tr. at 12:7-17 (“You're misunderstanding what the government is saying.

They have [been] representing that those have been produced to you. Am I misunderstanding what

the government's saying? They've indicated that they've produced that to you.”). Rather than clear

up the misunderstanding and be transparent, the Government remained silent.

Nevertheless, the Court ordered the Government to produce the “entirety of whatever is in

the government's possession.” Litchfield April 6, 2018 Tr. at 19:14-20. It is clear on the face of

this Order that the Court intended the Government to produce all recordings received from Project

Veritas. If there were any doubt about the breadth of this order, the Government could have, and

should have, at that point requested a clarification that it was not required to produce other Project

Veritas videos from events it deemed to be irrelevant to the case. See Boyd v. United States, 908

A.2d 39, 61 (D.C. 2006) (“In arguable cases, the prosecutor should provide the potentially

exculpatory information to the defense or, at the very least, make it available to the trial court for

in camera inspection.”). Although the Defendants would have objected, at least all parties could

have addressed this issue with at least a few months before trial. Instead, the Government

remained silent and purported to comply with the Order. See April 12, 2018 Kerkhoff Email.

When the trial readiness hearing continued on April 11, 2018, the Government had another

opportunity to explain the additional videos in its possession, but once again failed to do so.

Counsel for Mr. Litchfield requested a deadline for the Government to produce the unedited video

in compliance with the Court’s April 6 Order. In response, the Government indicated, “And I

thought that that had been posted on [USAfX, the Government’s discovery portal]. I had it in a

folder. I'll go back and check that as soon as I get back from court. I believe that had been put up,

but I will confirm that.” Litchfield April 11, 2018 Tr. at 50:19 – 51:2. In other words, by this time

the Government had reviewed the videos, knew what would be in its production, and said nothing

to clarify its prior misstatements to the Court and Defendants.

26
When it finally did produce the unedited Planning Meeting Video and “Pre-Planning

Meeting” Video on April 12, 2018, the Government could have alerted the Defendants to

discovery of the new material at the end of the Planning Meeting Video and the statement by Mr.

Petrohilos on the new “Pre-Planning Meeting” Video. The Government made no mention of

either of these and made no effort to clarify or explain its prior inaccurate representations to the

Court.

Once the Defendants discovered the Government’s Brady violation, the Government had

two hearings on Brady issues. See Litchfield May 23, 2018 Tr.; see also Litchfield May 31, 2018

Tr. In both the May 23 and May 31, 2018 hearings, the Court fully analyzed and conducted a

thorough factual inquiry of the record. In each hearing, the Government was afforded a recess so

the Assistant U.S. Attorneys could consult with the U.S. Attorney’s Office to gather the necessary

information and provide complete and accurate explanations for its conduct to the Court.

In between the hearings, the Government also had one week to file an opposition to the

Defendants’ Motion for Sanctions and to attempt to remedy the harm its Brady violation caused

the Defendants. See May 30, 2018 Opposition to Motion to Dismiss. The Government had

another opportunity to provide a complete narrative with its written “accounting” for all Project

Veritas recordings in its possession and decision to withhold recordings from discovery. See May

30, 2018 Keil Email. Despite all of these opportunities afforded by the Court the Government

ultimately “offered no explanation as why it did not appraise the Court of the existence of these

additional videos.” Litchfield May 31, 2018 Tr. at 11:3-18, 32:19-21, 36:2-4. And finally, after

the Court issued its ruling, the Government requested that the case be dismissed in its entirety.

In short, the Government has exhausted its opportunities for the Court to consider the issue

of whether the Government made accurate representations about its editing and withholding of

relevant evidence. There is no need for the Court to reconsider this issue yet again, especially in a

27
case that is not even active.

C. The Government Has Not Provided Any New Law or Evidence

The third problem with the Government’s Motion is that it cites no new law or evidence

that has arisen since the Court’s May 31, 2018 rulings. Instead, the Government relies on the same

information available to it at the time of the original decision. The only possible basis the Court

left open for a “complete decision” on May 31, 2018 was for an explanation from Ms. Kerkhoff,

who made the initial representations on April 6, 2018 but was not present for the hearings on May

23 and May 31, 2018. See Litchfield May 31, 2018 Tr. at 11:11-13, 32:18-24, 36:21 – 37:2. Even

this opening, however, was specific to whether the Government’s intentional decision rose to the

level of malevolence. See Litchfield May 31, 2018 Tr. at 36:21-24 (“I’m not prepared to find that

it was necessarily malevolent, but counsel before me is not able to make representations, so I can’t

make a complete decision with regard to that.”).

Nevertheless, the Government has provided no new information from the individuals with

first-hand knowledge of the Government’s decisions during discovery and representations before

this Court. Ms. Kerkhoff has not signed the Reconsideration Motion or submitted an affidavit in

support of it. The Government has similarly failed to provide any explanation from Detective

Pemberton who also reviewed the recordings and previously testified to personally editing the

Planning Meeting Video. See Macchio December 11, 2017 Tr. at 50:6-25. Accordingly, there is

no new information that would warrant reconsideration.

III. THE GOVERNMENT DID INTENTIONALLY MISREPRESENT THE NUMBER


OF VIDEOS IT RECEIVED FROM PROJECT VERITAS

If this Court is inclined to entertain the Government’s Motion, it should have no trouble

concluding from the record that the Government did intentionally misrepresent how many videos

it obtained from Project Veritas.

28
A. The Government Misrepresented the Number of Project Veritas Videos in Its
Possession

As discussed above, in response to the Defendants’ Motion to Compel the unedited Project

Veritas videos from the Government, on April 6, 2018 the Court broadly asked the Government to

explain what “what [the Defendants] have and what’s available to them or not.” Litchfield April

6, 2018 Tr. at 8:14-16. In response, the Government stated:

As outlined and as testified to by the detective during the first trial, the government
– the Metropolitan Police Department requested from a number of sources where
we got information they may have videos, such as news organizations or in this
case, the Veritas group that we had observed portions of edited video. Detective
Cumberson [sic] contacted the group and asked if they would be willing to
provide unedited video. They provided unedited video. We posted the video. It’s
not the original. We did not have a witness. We did not take any testimony.

Litchfield April 6, 2018 Tr. at 8:18 – 9:2 (emphasis added). This left the Court and Defendants

with the impression that there was only one video—the Planning Meeting Video—that the

Government had received directly from Project Veritas.

Tellingly, in its Reconsideration Motion, the Government tries to minimize this

misrepresentation by altering the key language from the transcript. The Government writes:

In response, government counsel explained that law-enforcement officials had


requested videos ‘from a number of sources,’ including Project Veritas; Project
Veritas, in turn, ‘provided unedited video,’ though not ‘the original video.’ Id. at
8-9. And, government counsel added, ‘we posted th[is] video,’ i.e., produced it to
the defendants.

Reconsideration Motion at 7-8 (emphasis added). That is not what the Government said in the

April 6, 2018 hearing and not a fair paraphrase of the discussion either. The Government did not

say that Project Veritas “provided unedited video, we posted this video.” It said that Project

Veritas “provided unedited video, we posted the video.” This appears to be another attempt by the

Government to mislead this Court and avoid responsibility for its misconduct.

29
Regardless, the Government persisted in misrepresenting the number of Project Veritas

videos in its possession. On April 12, 2018, in its production transmittal email, the Government

revealed for the first time the existence of the “Pre-Planning Meeting” Video but failed to mention

any other Project Veritas videos. See April 12, 2018 Kerkhoff Email. On May 23, 2018, the

Court sought clarification of whether the Government had any more undisclosed or unproduced

videos from Project Veritas in its possession:

THE COURT: And maybe I was under misimpression. I thought the government
had represented it was turning over all videos in its possession.

MR. BASET: And that we did on April 12th, all those videos.

THE COURT: Okay. Maybe I'm dis -- misunderstanding the history of this case but
I thought -- the Court was operating under the assumption that the government
was disclosing prior to April 12th all the videos that it had concerning this matter
except for the two cropped pieces from the January meeting. Did I
misunderstand?

MR. BASET: So my understanding is what the government had disclosed prior to


April 12th are the four planning videos. There was a deplorable video from a
different day, and there were a couple of conversations, I believe, that were initially
disclosed. The breakout session videos were not disclosed.

Litchfield May 23, 2018 Tr. at 58:17 – 59:4.18 Although it admitted that it had a handful of videos

from Project Veritas—i.e., the Planning Meeting Video, the “Pre-Planning Meeting” Video, a

video of a planning meeting for a protest at the DeploraBall, and something it vaguely described as

“a couple of conversations”—the Government failed to reveal that it had 69 additional recordings

from Project Veritas in its possession that it had never disclosed or produced. Only after the

Defendants interviewed the Project Veritas witness and the May 29 Trial Group raised the issue

with the Court did the Government finally admit the full extent of Project Veritas recordings in its

possession.

18
The “four planning videos” refers to the one Planning Meeting Video, which was split into four segments for
production purposes.

30
The Government claims that the Government could not have misrepresented the amount of

video evidence it had from Project Veritas because Detective Pemberton vaguely testified that in

the November Trial that he received “hours of video” from Project Veritas on “a hard drive.”

Similarly, the Government claims that it could not have misrepresented the amount of video

evidence because the Defendants filed a motion in limine that was similar to one filed by the

November Trial Group that identified an additional Project Veritas video. These arguments miss

the point of the Court’s findings. The Government’s obligation to be transparent and candid with

the Court and the Defendants does not depend on what may be gleaned from reviewing transcripts

or filings in other cases. And further, neither of these instances change the fact that the

Government concealed from everyone that it had scores more undisclosed Project Veritas

recordings.19 See Vaughn v. United States, 93 A.3d 1237, 1256 (D.C. 2014) (quoting Miller v.

United States, 14 A.3d 1094, 1113 (D.C. 2011)) (“Brady does not authorize the government to

engage in a game of hide-and-seek, or require the defense to ‘scavenge for hints of undisclosed

Brady material.’”); see also Miller, 14 A.3d at 1108 (“We expect this constitutional duty to be

taken both literally and seriously; ‘[a] rule . . . declaring [that the] prosecution may hide, defendant

must seek, is not tenable in a system constitutionally bound to accord defendants due process.”

(quoting Banks v. Dretke, 540 U.S. 668, 696 (2004)) (alteration in original).

B. The Government Did So Intentionally

Although the Court did not explicitly find that the Government intentionally

misrepresented the number of Project Veritas videos in its possession, the record shows that this

clearly was intentional. First, the Government made the misrepresentation two times in separate

19
Since the inception of this case, the Government has selectively disclosed certain information to certain trial groups
and refused to serve all Defendants at once to keep everyone fully informed. Yet the Government now argues that
testimony buried in a month-long trial of other defendants put all Defendants on notice of the evidence in its
possession.

31
hearings in response to direct questions from the Court about what Project Veritas videos had and

had not been produced. The first time the Government said it had one Project Veritas video. See

Litchfield April 6, 2018 Tr. at 8:18 – 9:2. The second time the Government let on that it had a

handful of Project Veritas videos. See Litchfield May 23, 2018 Tr. at 58:17 – 59:4. But at no time

did the Government reveal anything close to what it actually possessed—more than 70 Project

Veritas recordings.

Second, the Government had multiple opportunities—during the April 6 hearing, the April

11 trial readiness hearing, the April 12 production transmittal email, the May 23 hearing, and its

May 30 opposition brief—to be transparent about what Project Veritas videos it had in its

possession or to clear up misunderstandings. Additionally, when the Court issued a broad “formal

order” that the Government must produce the “entirety of whatever is in the government’s

possession,” Litchfield April 6, 2018 Tr. at 19:14-20, the Government could have asked the Court

to clarify the scope of this Order. But at each juncture, the Government concealed the evidence in

its possession or remained silent while the Court and Defendants operated under a

misunderstanding. See Vaughn, 93 A.3d at 1262 (“The government not only failed to give the

defense (or the court) accurate or complete information, it then stood by . . . and allowed the

defense’s ignorance and the court’s erroneous understanding of the pertinent facts to persist.”).

Were it not for the Defendants pressing for more discovery, none of this would have come

to light. The Defendants’ Motion to Compel led to the production of 58 minutes and four seconds

of new footage. This led to the discovery of the exculpatory “upper echelon” statement, which led

to the Court finding the Government violated Brady and Rule 16. The Court in turn suggested the

Government make the videographer who made the statement available for interview. One week

before trial, the Defendants received helpful information at this interview, and the defendants from

the May 29 Trial Group shared this information with the Court. When the Court learned that

32
Project Veritas likely coordinated with law enforcement and provided a multitude of recordings of

infiltrated DisruptJ20 planning meetings, it requested an “accounting” from the Government about

all Project Veritas recordings in its possession. Five days before trial, this chain of events finally

resulted in the revelation that the Government possessed an additional 69 undisclosed recordings.

Third, the Government’s misrepresentation about the amount of Project Veritas videos was

part of a larger pattern of misrepresentations concerning key pieces of evidence in this case. As

discussed above, the Government first misrepresented at the April 6 hearing the edits that it made

to the Planning Meeting Video—edits that removed an exculpatory statement by a key witness,

whose interview by the Defendants ultimately exposed the full extent of Project Veritas evidence

in the Government’s possession. Then it misrepresented repeatedly the amount of videos from

Project Veritas it had in its possession. And finally, at the April 6 hearing and the May 31 hearing,

the Government misrepresented the existence and relevance of video evidence from the Action

Camp. When assessing whether any of these misrepresentations was intentional, the Government

should not receive the benefit of the doubt.

IV. CONCLUSION

For the foregoing reasons, the Defendants respectfully request that the Court deny the

Government’s Reconsideration Motion. If the Court is inclined to reconsider its rulings, the

Defendants request that the Court dismiss all charges with prejudice because of the Government’s

extensive misconduct and refusal to accept responsibility for its actions.

[Signatures on Following Pages]

33
Dated: July 23, 2018 Respectfully submitted,

/s/ Mark B. Sweet


Mark B. Sweet (Bar # 490987)
Michelle B. Bradshaw (Bar # 241341)
WILEY REIN LLP
1776 K Street NW
Washington, DC 20006
202-719-4649
msweet@wileyrein.com
mbradshaw@wileyrein.com

Counsel for Christopher Litchfield

/s/ Andrew O. Clarke


Andrew O. Clarke (DC Bar # 1032649)
ANDREW CLARKE LAW, PLLC
1712 I Street NW, Suite 915
Washington, DC 20006
(202)780-9144
a.clarke@aclarkelaw.com

Counsel for Dylan Petrohilos

/s/ Cary Clennon


Cary Clennon (DC Bar # 366816)
P.O. Box 29302
Washington, D.C. 20017
(202) 269-0969
clennonlegal@hotmail.com

Counsel for Matthew Hessler

/s/ Mark L. Goldstone


Mark L. Goldstone (D.C. Bar #394135)
1496 Dunster Lane
Rockville, Maryland 20854
(301) 346-9414
mglaw@comcast.net

Counsel for Daniel Meltzer

34
/s/ Sharon Weathers
Sharon Weathers (DC Bar # 467618)
717 D. Street, N.W., Suite 300
Washington, D.C. 20004
703-725-9674
sweathers@verizon.net

Counsel for Clay/Caly Retherford

/s/ Charles P. Murdter


Charles P. Murdter (DC Bar # 375905)
601 Pennsylvania Avenue NW
Suite 900 South
Washington, D.C. 20004
(202) 638-6959
murdterlaw@hotmail.com

Counsel for Caroline Unger

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on July 23, 2018, a true and correct copy of the foregoing was
electronically filed and served via CaseFileXpress on counsel for the Government as listed below:

Jessie K. Liu
Alessio D. Evangelista
David B. Goodhand
Jennifer Kerkhoff
Rizwan Qureshi
Ahmed Baset
U.S. Attorney’s Office for the District of Columbia
555 Fourth Street, N.W.
Washington, DC 20530

And served via email on counsel for Defendants as listed below:

murdterlaw@hotmail.com, davidsidbury@comcast.net, lauckland1@aol.com,


karenlminor@aol.com, nlotze@lotzemosley.com, wjacobson@orrick.com,
athomas@ahthomaslaw.com, a.clarke@aclarkelaw.com, anna@annascanlonlaw.com,
attycade@aol.com, aprilldowns@aol.com, clennonlegal@hotmail.com,
donald.salzman@skadden.com, colleen_archer@msn.com, vaughanlawdc@gmail.com,
scialpilaw@gmail.com, jerryraysmith@verizon.net, copacino@law.georgetown.edu,
johnlmachado@gmail.com, jtharvey3@comcast.net, jonnorrislaw@gmail.com,
jonathanzuckerlaw@gmail.com, jonwillmott@yahoo.com, joseph.mccoy.law@gmail.com,
kanita@kcwilliamslaw.com, ken.auerbach@yahoo.com, phillips.gppc@gmail.com,
lsapirstein@gmail.com, louis_kamara@yahoo.com, mlking@kinglaw.org,
hertzmr@smaclaw.com, dschertler@schertlerlaw.com, michael@brucklaw.com,
patrice.sulton@sultonlaw.com, rcotton@zuckerman.com, modonnell@zuckerman.com,
rblochlegal@gmail.com, rf@rfeitellaw.com, raustin@hwglaw.com, sbogash@mac.com,
susan@boreckilaw.com, patel@brucklaw.com, lawyer@thomasakey.com,
veroniceholt@msn.com, Jason@DownsCollins.com, sschr83309@aol.com, howard950@aol.com,
mglaw@comcast.net, sweathers@verizon.net, pauls411x@yahoo.com, plinehan@steptoe.com,
tbiswese@hwglaw.com, mpetry@schertlerlaw.com, jshiffrin@bredhoff.com,
pandonian@bredhoff.com, swu@dcwhitecollar.com, rgallena@ORRICK.COM

Respectfully,

/s/ Mark B. Sweet


Mark B. Sweet