Good morning and welcome to Day 34 of the Proud Boys seditious conspiracy trial. We started in winter and it is nearly spring. Exhibit A pictured below. Today should be a doozy as we get into cross of an FBI Agent who worked the PB investigation. Live tweets start at 9am ET. 
And of course, I am only here covering this without interruption because of @emptywheel, so please, if you are somehow not following there -- do it today!
I am covering this with empty wheel through the verdict and then I will be on the market and looking for a great new reporting job! Tips for new opportunities are always welcome and my DMs are open.
In the meantime:
https://twitter.com/emptywheel/status/1630205298353766405?t=YRekVFD3TGzl2pFIWKoTpw&s=19
NOW: The trial day will not officially begin until 10 a.m. so the parties can address a series of issues and motions that arose yesterday and overnight, including the defense's claims that an FBI agent now under cross withheld statements as part of Jencks production
For now, it sounds like the jury will be brought back at 10 a.m. but that could change. Given the nature and tenor of this trial, I would expect nothing less.
While we wait - let's start unpacking some of what happened late yesterday.
When FBI Special Agent Nicole Miller came under cross by atty Nick Smith (for Ethan Nordean), Smith raised questions about a spreadsheet cataloging several msgs sent in the FBI's msging system, Lync.
When FBI Special Agent Nicole Miller came under cross by atty Nick Smith (for Ethan Nordean), Smith raised questions about a spreadsheet cataloging several msgs sent in the FBI's msging system, Lync.
The messages were between Miller and another agent identified as T. Wang in the docs. Smith contends that when he began reviewing the spreadsheet, he uncovered hidden rows containing msgs between the agents and that those msgs suggest there's been a violation of atty-client priv
Smith's motion below.
Per Smith, there's an Oct. 21 '21 msg between Wang/Miller where Wang seems to indicate that he's reviewed or overheard discussion between defendant Proud Boy Zachary Rehl and his then-attorney, Jonathan Moseley (since suspended)
documentcloud.org/documents/2369…
Per Smith, there's an Oct. 21 '21 msg between Wang/Miller where Wang seems to indicate that he's reviewed or overheard discussion between defendant Proud Boy Zachary Rehl and his then-attorney, Jonathan Moseley (since suspended)
documentcloud.org/documents/2369…
Now, Smith is also claiming in the previously linked motion that there was destruction of other evidence too. That's his claim and not one I am able to unpack at this point without more info. Adding to this...
It's difficult to say at this pt (and w/o the govt responding just yet) exactly what happened here and what is permitted vs what is arguably accidental (i.e. feds listening in on jailhouse phone call/rding emails beyond pt that its clear there's a privileged convo happening or...
if this all came to the surface because the attorney involved lacked awareness of the time and place and potential exposure of the communications.
I'm not a lawyer (as I underline often) but this is my rudimentary understanding of some of the dynamics here.
I'm not a lawyer (as I underline often) but this is my rudimentary understanding of some of the dynamics here.
A question raised immediately in my mind is whether there *was* an actual 6th Amendment violation for Rehl.
It wasn't clear as this began to unfold yesterday whether Agent Miller in fact withheld materials tied to her testimony on purpose.
It wasn't clear as this began to unfold yesterday whether Agent Miller in fact withheld materials tied to her testimony on purpose.
Smith's cross is about impeaching Miller's credibility and these issues go toward that end. From the bench, Judge Kelly didn't seem immediately inclined to side with the defense, suggesting that issues over the msgs may be beyond the scope of Miller's testimony.
We should be underway shortly.
And away we go. Judge Kelly begins with first issue: the govt's Jencks production and the Jencks obligations.
I do think based on what Kenerson laid out, it does make sense to pause trial until govt can comply with Jencks obligations.
The jury will be sent home for the day.
I do think based on what Kenerson laid out, it does make sense to pause trial until govt can comply with Jencks obligations.
The jury will be sent home for the day.
Judge Kelly says its reasonable to believe govt needs time to provide defendants with all available Jencks materials.
Jocelyn Balantine; As we reviewed the Jencks issue overnight, it appears the issue is more complicated than we appreciated yesterday in court and appears Jencks production may include a spill of classified information.
Balantine: We have FBI personnel in courtroom, we have a procedure to suggest to court that would be appropriate.
We think we can resolve this fairly expeditiously and agree with court to send jury home to return on Monday.
We think we can resolve this fairly expeditiously and agree with court to send jury home to return on Monday.
Judge Kelly: And that's apart from the Jencks issue...maybe its intertwined...
Nick Smith for Nordean: There's a primary question about filtering for spreadsheet - if its prosecutors office filtering msgs, creating hidden rows, then no claims of surprise because all of these...
Nick Smith for Nordean: There's a primary question about filtering for spreadsheet - if its prosecutors office filtering msgs, creating hidden rows, then no claims of surprise because all of these...
msgs would have been available in Nov.
We want to know if filtering was done here or in another location,
Kelly: They have obligations to you, they have either fulfilled them or not fulfilled them and if not, they need to do it because direct testimony is completed.
We want to know if filtering was done here or in another location,
Kelly: They have obligations to you, they have either fulfilled them or not fulfilled them and if not, they need to do it because direct testimony is completed.
Smith: If spreadsheet was filtered by prosecutors office, that means they had access to msgs we're referring to. I don't know if that's the case and its totally possible that someone might not be aware of hidden msgs or sent to prosecutors msgs totally unaware & simply repro'd
to the defense....
Kelly: Regardless, they have obligation to produce this to you and they say its not going to take long, it'll take to the end of the day, maybe.
I don't know how I can't allow them opportunity to fulfill those obligations.
Kelly: Regardless, they have obligation to produce this to you and they say its not going to take long, it'll take to the end of the day, maybe.
I don't know how I can't allow them opportunity to fulfill those obligations.
Smith: is it still possible to ask govt whether filter was done by prosecutors office or the fbi because this goes towards objections when govt says defense has known about this for some time now... if filtering by prosecutors office, this is not something surprising...
Norm Pattis for Joe Biggs asks for a brief adjournment to discuss a spill of classified information.
If' we've been given material inadvertently we cant have... I don't know what this means but seems more fundamental than the trial right now.
Judge Kelly seems to agree...
If' we've been given material inadvertently we cant have... I don't know what this means but seems more fundamental than the trial right now.
Judge Kelly seems to agree...
Kelly: This spill issue also creates a need for parties to interact not in my courtroom about that.
Even if not talking about spill issue... the govt's not asking for a week, they're asking for a business day.
Even if not talking about spill issue... the govt's not asking for a week, they're asking for a business day.
Pattis: Here's the problem, much was made over our strenuous objections.....now our opponent is unknowingly giving us classified information We shouldn't have to abandon any strategic advantage we could reap from this apparent mistake.
Pattis joins Smiths motion opposing delay
Pattis joins Smiths motion opposing delay
We didn't pick this fight, we've come here to win it, Pattis says, and if govt has erred and stepped into a minefield, it's our obligation to force govt over each and every mine... we do want to go fwd with the jury now
Sabino Jauregui for H. Tarrio agrees w/ Smith; everytime there's a prob with govt's case, they come in here and say the magic word classified
Kelly: No, no they've never said the word classified
Jauregui disagrees, say everything in this case has been in secret. Kelly disagrees
Kelly: No, no they've never said the word classified
Jauregui disagrees, say everything in this case has been in secret. Kelly disagrees
Jauregui thinks Smith's "gotcha" moment w/Agent Miller was ruined and he wants an evidentiary hearing with the agent.
Kelly asks for Roger Roots to weigh in. Roots for Dominic Pezzola. Roots wants jury sent home - this trial cannot go fwd, he says.
Other defense attys disagree
Kelly asks for Roger Roots to weigh in. Roots for Dominic Pezzola. Roots wants jury sent home - this trial cannot go fwd, he says.
Other defense attys disagree
Kelly: I've heard you all...
Carmen Hernandez for Rehl, says she was not heard, but says she joins her fellow defense attys. Kelly acknowledges her.
Carmen Hernandez for Rehl, says she was not heard, but says she joins her fellow defense attys. Kelly acknowledges her.
Kelly: The govt is asking for basically 1 day to sort of get under the hood of this and make sure they comply with Jencks obligations. Frankly, if I didn't stop now and all the sudden in 2 days they came up w/ a document that 1 of the defendants could have made use of for cross..
Kelly cont.: we would be in a pickle. They have to be able to comply with Jencks obligation, so I am going to send the jury home for the day and we'll pick up on these issues.
Kelly said hopefully parties wont spend a lot of time in court today so the parties can always contend with the classified materials issue
Break is over.
Smith: We hae a concern if only source of info is coming from this witness and what she recalls about classification, this could [result] in over classification...
Smith wants a 3rd party to review relevant materials if nec.; wants to flag it and Kelly flags it
Smith: We hae a concern if only source of info is coming from this witness and what she recalls about classification, this could [result] in over classification...
Smith wants a 3rd party to review relevant materials if nec.; wants to flag it and Kelly flags it
Balantine: We do need to discuss potential for the spill and I would like to address that in presence of court as opposed to addressing it informally with counsel.
Kelly: Do you need to do it under seal?
Bal: I do not at this point need to be under seal
Kelly: Do you need to do it under seal?
Bal: I do not at this point need to be under seal
Balantine: When the FBI conducts pulls of its Jencks materials, in this case we had deadline of nov 28 '22, we directed agents to begin pulling material on nov 1. Agent Miller complied with that request, One bucket she pulled from were Lync msgs (internal, informal comms for FBI)
Bal: Sometimes they're talking about lunch, whether a case file is opened, if new agent is on probation etc. Those msgs are housed on FBI's classified systems. When Miller asked HQ to perform the pull, it gave back to her a spreadsheet that had 12k+ lines in it.
Miller from there was instructed by HQ that HQ can't determine whether msgs themselves are classified. Its something agent has to do msg by msg.
What we don't know and haven't spoken o Miller to confirm is the order in which Miller proceeded.
What we don't know and haven't spoken o Miller to confirm is the order in which Miller proceeded.
One possiblity, she reviewed all lines for classified information, removed anything that was classified and what she appears to have done next is filtered the spreadsheet so it only showed her msgs she sent to other people and she sent the filtered spreadsheet to US Attys Office
Regretably USAO didn't know it was in filtered form...
What we don't know sitting here today is if msgs from agents were reviewed or whether she filtered it didn't appreciate other msgs were in spreadsheet and only reviewed her own msgs for classified equities
What we don't know sitting here today is if msgs from agents were reviewed or whether she filtered it didn't appreciate other msgs were in spreadsheet and only reviewed her own msgs for classified equities
While several of us in courtroom have clearances, its not nec. sufficient, Balantine says.
We need to appreciate the extent to which Special Agent Miller scrubbed that entire spreadsheet of classified equities.
And we need to know whether or not, if she need a full scrub...
We need to appreciate the extent to which Special Agent Miller scrubbed that entire spreadsheet of classified equities.
And we need to know whether or not, if she need a full scrub...
We will still need to claw back some materials from defense because they are secret materials.
If Miller did not scrub the entire unfiltered dataset for classified info, we'll need to clawback that spreadsheet, meaning simply return it to us and confirm they've deleted...
If Miller did not scrub the entire unfiltered dataset for classified info, we'll need to clawback that spreadsheet, meaning simply return it to us and confirm they've deleted...
all copies from any hard drive they may have....
We've got a team working behind the scenes to make this work as quickly as possible but in order for me to leave and conduct that process, i have to do that inquiry of Miller.
We've got a team working behind the scenes to make this work as quickly as possible but in order for me to leave and conduct that process, i have to do that inquiry of Miller.
Balantine suggests this inquiry with Agent Miller is done in front of court and counsel so nothing is secret.
Kelly: Depending on how she conducted the review, it could alleviate some concern
Balantine: It could. After Mr. Smith alerted us to filtered msgs, when we unfiltered it, we see M. communicating at least with one other special agent who...
Balantine: It could. After Mr. Smith alerted us to filtered msgs, when we unfiltered it, we see M. communicating at least with one other special agent who...
Bal. continued: ...works on a squad that does covert activity and is involved with classified materials though not specific to this case
Smith: I hear 2 step procedure - witness coming back and examination by Balantine and immediate return of Jencks material to govt. The latter would be inappropriate before we even know whats classified. There are potentially 100s of rows not classified....
Smith: I dont think procedure would be appropriate to have immediate return of documents and deletion of material that is not classified.
What does the witness ID as classified information?
Then if certain pieces of info are classified, the defense should be able to copy info..
What does the witness ID as classified information?
Then if certain pieces of info are classified, the defense should be able to copy info..
Smith cont: ...that's not classified. If we don't, it'll be hard to go back to govt say, produce Row XYZ and rely on govt to return back to us whatever is appropriate.
If witness comes out &s examined by Bal. we should have opportunity to cross.
Kelly: you're misunderstanding
If witness comes out &s examined by Bal. we should have opportunity to cross.
Kelly: you're misunderstanding
Kelly: She's not going to be able to know what's classified.
It's just the process she went through as a starting pt. Did you do A or did you do B to classify
It's just the process she went through as a starting pt. Did you do A or did you do B to classify
The agent is here right now, Kelly elicits from Balantine. This could be done right now.
Kelly: All they need to know is how she processed her spreadsheet
Balantine: That's correct
K: There may be other things you want to elicit from her before jury or outside presence but...
Kelly: All they need to know is how she processed her spreadsheet
Balantine: That's correct
K: There may be other things you want to elicit from her before jury or outside presence but...
in order for them to go back and do due diligence, they have to do this...
Smith says he understands but he still pushes: the material should not be immediately returned to govt; the defense should be given chance to contest facts
Smith says he understands but he still pushes: the material should not be immediately returned to govt; the defense should be given chance to contest facts
Kelly: she's not going to testify that any one thing was classified.
(Again, Judge Kelly explains, this is about the process of the agent's filtering, this is not a substance issue)
(Again, Judge Kelly explains, this is about the process of the agent's filtering, this is not a substance issue)
Hernandez: There is a metadata document on this Excel database and as I read it --
Balantine: I'm going to ask the court to intervene, the doc she's reading from is classified
Crosstalk by defense from every side; they claim its metadata.
Kelly reprimands everyone for talking
Balantine: I'm going to ask the court to intervene, the doc she's reading from is classified
Crosstalk by defense from every side; they claim its metadata.
Kelly reprimands everyone for talking
Hernandez: I won't read from it but I think it would make more sense, since govt has it & defense has it, that the court is able to see it. You can set it up so its not shown to the public.
H'dez is trying to connect her computer to display doc, I think, Kelly tells her not to
H'dez is trying to connect her computer to display doc, I think, Kelly tells her not to
Hernandez: As I read this document it doesn't contain classification that requires this hyper secrecy....
She adds, if we do go fwd, she wants a third party to review not the agent who is now in middle of cross
She adds, if we do go fwd, she wants a third party to review not the agent who is now in middle of cross
Kelly: The classification agent cant tell us how the agent processed the spreadsheet so I don't see how your proposal can...
Hernandez: If it is classified, it should have some notification on the document itself
Kelly: No, that's not true, they can't tell the scope until they...
Hernandez: If it is classified, it should have some notification on the document itself
Kelly: No, that's not true, they can't tell the scope until they...
Kelly cont.: determine the filtering.
Kelly tells Hernandez she's offering an opinion about the basis of classification that she doesn't have authority to offer.
Hernandez says these are text msgs and if govt says they're classified, govt should have to mark it.
(I promise I'm not picking on atty, but that's wrong)
Hernandez says these are text msgs and if govt says they're classified, govt should have to mark it.
(I promise I'm not picking on atty, but that's wrong)
Sabino Jauregui: To be clear, so your honor understands background of file - there's 3 different excel files. one that had the hidden rows. But there is another excel file, the one that was meant to be given to us and it does not have hidden rows and...
Jauregui: ...it was created by Kenerson on 11/28 at 2:25pm and modified by him that same day after 7pm and that eliminated the rows. This has all been one big screw-up. They inadvertently gave us that one full of exculpatory evidence and...
Jauregui:... stuff good for defense, but for govt to say there was nothing in those hidden rows, knowing they created a new doc with no hidden rows....
Kelly says he understands what Jauregui is saying and he moves to Pattis next.
Kelly says he understands what Jauregui is saying and he moves to Pattis next.
Norm Pattis, for Joe Biggs, now suggests a special master be assigned to review materials and tells court that he wont return materials absent an order from the judge because it would require him to sacrifice his duty to his client.
Pattis: If govt gave us exculpatory info... if govt made this error, then the govt must decide whether to proceed with prosecution
Kelly tells Pattis: but you're not giving up any right to abandon materials for your case....
Kelly tells Pattis: but you're not giving up any right to abandon materials for your case....
Whatever they want to do, I have a copy. A record of what you have is preserved, Judge Kelly tells Pattis.
Kelly: The question of what you can do with the witness is a different question... what you've had is preserved.
Pattis: But there's no neutral set of eyes to evaluate it
Kelly: The question of what you can do with the witness is a different question... what you've had is preserved.
Pattis: But there's no neutral set of eyes to evaluate it
Kelly: The evaluation is one thing but status quo of what you had is preserved.
Smith: I'm frustrated because everyone is talking about classified infor but no one is citing relevant rule, the classified information procedures act.
Kelly: Does that govern accidental spills?
Smith: I'm frustrated because everyone is talking about classified infor but no one is citing relevant rule, the classified information procedures act.
Kelly: Does that govern accidental spills?
Smith: It requires govt to ID pretrial when any matter is relating to classified info may arise in connection w/prosecution --- that was not complied with here.
Kelly: Obviously, this is inadvertent
Smith: Inadvertent or otherwise
Kelly: Obviously, this is inadvertent
Smith: Inadvertent or otherwise
Kelly: so your position is if govt inadvertently plans to...
Smith cuts in: since purpose of rule is notice, the issue isn't good or bad faith, its that there hasn't been notice. we cant allow party to throw a halt into proceedings when that prelim rule hasn't been complied with
Smith cuts in: since purpose of rule is notice, the issue isn't good or bad faith, its that there hasn't been notice. we cant allow party to throw a halt into proceedings when that prelim rule hasn't been complied with
Sabino Jauregui is nodding his head as Smith says this last bit.
Roger Roots for Pezzola: Your honor we have caught the FBI ---
Judge Kelly stops him. Asks him what his question is WITHIN THE SCOPE of the issues here.
Judge Kelly stops him. Asks him what his question is WITHIN THE SCOPE of the issues here.
Roots starts up again with same line of discussion about nefarious FBI activities
Kelly stops him again and asks him, as he holds his face in his own hands, what this is getting to
Roots: The American people need to know the full extent of this. These are serious federal crimes..
Kelly stops him again and asks him, as he holds his face in his own hands, what this is getting to
Roots: The American people need to know the full extent of this. These are serious federal crimes..
Roots starts talking about whether recess of congress was necessary on 1/6 and Judge Kelly says: get to your point right now.
This witness needs to be informed that she needs an atty, I don't believe she can be examined at all, Roots says and accuses agent of breaking law
This witness needs to be informed that she needs an atty, I don't believe she can be examined at all, Roots says and accuses agent of breaking law
Judge Kelly tells Roots, after Roots accuses FBI Agent Miller of committing crimes, and I'm paraphrasing lightly, he's off topic
AUSA Kenerson looks exhausted as Carmen Hernandez approaches and begins reading bits and pieces from materials she thinks are innocuous.
Hernandez says there are texts talking about lunch, "ugh ok" etc. and these, if Kelly could see, are not sensitive classified materials
Hernandez says there are texts talking about lunch, "ugh ok" etc. and these, if Kelly could see, are not sensitive classified materials
Kelly: The issue here is a legal one. By my thinking right now, the overall thrust of this is about the spill of classified [materials]. You all may disagree and we can litigate but as we sit here, this is not something we're doing before the jury.
Hernandez tells Kelly she thinks this is an abuse of discretion by the court and favors the govt.
Kelly says no, how the agent processed it is SEPARATE from the content.
This proposal by Balantine is a way to get through this
Kelly says no, how the agent processed it is SEPARATE from the content.
This proposal by Balantine is a way to get through this
Pattis wants to have the interview video recorded; suggesting that jurors should be able to see how she responds to various inquiries by govt about the materials because it will help them assess her credibility.
Kelly: I'm not sure how this is about credibility right now
Kelly: I'm not sure how this is about credibility right now
Judge Kelly also told Pattis he doesn't know if there's even a provision for that in federal court (re: video recording Agent Miller)
Kelly: The impact of her credibility is negligible
Pattis: Tell that to my client if there's a conviction
Cross-talk between Kelly and Pattis
Kelly: The impact of her credibility is negligible
Pattis: Tell that to my client if there's a conviction
Cross-talk between Kelly and Pattis
Kelly tells Pattis he's made his point and asks for the witness to be brought in.
Balantine begins with inquiry of Agent Miller to assess how she filtered messages.
Bal: Did you conduct a pull of your Lync msgs in connection with preparing Jencks packets in this case?
M: I did
Was the pull you requested from 1/6/21-11/1/22?
I believe so yes
Bal: Did you conduct a pull of your Lync msgs in connection with preparing Jencks packets in this case?
M: I did
Was the pull you requested from 1/6/21-11/1/22?
I believe so yes
Bal: Did you receive from HQ multi line excel spreadsheet tied to request for pull of msgs?
M: I did
Lync exists on FBI's classified systems?
Objection. Leading. Overruled.
Miller: Yes
M: I did
Lync exists on FBI's classified systems?
Objection. Leading. Overruled.
Miller: Yes
Bal: When you rec'd excel spreadsheet back from HQ did the cover memo to that spreadsheet
Smith: Objection. leading.
Bal: Can i finish my question?
Smith: this is inappropriate
Kelly reprimands Smith for overspeaking
Smith: Objection. leading.
Bal: Can i finish my question?
Smith: this is inappropriate
Kelly reprimands Smith for overspeaking
Bal: Did the cover letter advise you that the spreadsheet was classified?
Sabino for Tarrio objects, says govt is testifying.
Pattis says the best evidence is the memo.
Kelly calls for a sidebar.
Husher is on.
Sabino for Tarrio objects, says govt is testifying.
Pattis says the best evidence is the memo.
Kelly calls for a sidebar.
Husher is on.
Husher off.
Bal: When you rec'd spreadsheet of msgs back from HQ, what was overall classification level of that spreadsheet?
Objection. Leading
Secret, noforn (no foreign nationals)
Bal: When you rec'd spreadsheet of msgs back from HQ, what was overall classification level of that spreadsheet?
Objection. Leading
Secret, noforn (no foreign nationals)
Miller: I went through msgs and anything that was relevant to any stmt I made was what I provided
Bal: is it accurate to say you filtered and then did classification review?
Miller: yes
Bal: is it accurate to say you filtered and then did classification review?
Miller: yes
Smith begins with Miller: We were discussing the spreadsheet yesterday and what you produced to govt initially had about 26 rows of Lync stmts you may have sent related to this case?
Objection by DOJ.
Bal: this is not the spreadsheet i was discussing w/Miller
Objection by DOJ.
Bal: this is not the spreadsheet i was discussing w/Miller
Smith reads from transcript from yesterday:
Smith: so well 1st ms miler, are there hidden rows in this spreadsheet?
M: not that I'm aware of
you created this right?
there shouldn't be hidden rows in the memo
S: so when i click clear, do you see there are about 8k rows here?
Yes
Smith: so well 1st ms miler, are there hidden rows in this spreadsheet?
M: not that I'm aware of
you created this right?
there shouldn't be hidden rows in the memo
S: so when i click clear, do you see there are about 8k rows here?
Yes
so it appears someone hid rows, right?
m: i haven't seen it like this before
Smith: So my question, following on what Balantine just asked, whether witness filtered initial dump of Lnc msgs originally delivered to her from FBI HQ. She had indicated she had filtered but when
m: i haven't seen it like this before
Smith: So my question, following on what Balantine just asked, whether witness filtered initial dump of Lnc msgs originally delivered to her from FBI HQ. She had indicated she had filtered but when
Smith cont.: ...I showed you spreadsheet yesterday and click unfilter, you testified you had not seen a spreadsheet like that before.
Miller: After i provided my info, attys took that info and put it into a spreadsheet... then provided to me so i knew what was provided. so when you hit all those rows, that was not what i had been provided by the attys..
Smith: Im asking something slightly different; she asked you about spreadsheet given by FBI HQ...
you testified that you filtered those msgs...
Miller: just the msgs I sent because it was my statemts
S: you didn't remove any msgs of yours from spreadsheet given to you by FBI HQ?
you testified that you filtered those msgs...
Miller: just the msgs I sent because it was my statemts
S: you didn't remove any msgs of yours from spreadsheet given to you by FBI HQ?
M: i didn't remove any... if anything was related to this investigation, those were provided. internal conversations regarding admin things case files, adding things to case files, that wasn't provided because it didn't relate to my testimony
,
,
when you say provided, you're referring to what you provided to prosecutors office?
yes
Smith: but doc i showed you yesterday after i unfiltered it, is that the same info the FBI gave you?
Objection. Sidebar. Husher on.
yes
Smith: but doc i showed you yesterday after i unfiltered it, is that the same info the FBI gave you?
Objection. Sidebar. Husher on.
I told you it would be a doozy today.
Sidebar over.
Smith: Balantine asked you whether date in spreadsheet, Lync msgs, was extracted from an FBI classified database?
Miler: from FBI HQ... I'm not sure what FBI tools used to extract that info..
Does that mean extraction was classified
M:If on secret side, I think so
Smith: Balantine asked you whether date in spreadsheet, Lync msgs, was extracted from an FBI classified database?
Miler: from FBI HQ... I'm not sure what FBI tools used to extract that info..
Does that mean extraction was classified
M:If on secret side, I think so
Miller says she would need more information though, because she doesn't know system HQ used to pull.
But she thinks it is onthe secret side, so it would be, but she would have to look at the msg.
But she thinks it is onthe secret side, so it would be, but she would have to look at the msg.
Again, Miller: If its on hte secret side of our system as opposed to non-secret side, those msgs would likely be classified based on the side its on. I would need to see from HQ how its extracted in order to answer that question
Sabino Jauregui: What date did you send the spreadsheet approx?
Miller: I don't know
Jauregui elicits that she got copy of spreadsheet definitely after Nov 28.
Nothing further from govt, so Agent Miller is allowed to step down
Miller: I don't know
Jauregui elicits that she got copy of spreadsheet definitely after Nov 28.
Nothing further from govt, so Agent Miller is allowed to step down
Kelly: Based on what witness said, what is gov't's proposal for how we should proceed re: classified issue
Bal: What witness told us was she filtered msgs only sent from her BEFORE she reviewed info in spreadsheet for classification. That means no one has reviewed the msgs
Bal: What witness told us was she filtered msgs only sent from her BEFORE she reviewed info in spreadsheet for classification. That means no one has reviewed the msgs
Bal cont.:..sent from any other person in the spreadsheet. Now, the FBI needs to conduct that review and this information will allow us to conduct that review. I understand it would appear to counsel that some of these Lync msgs appear not to be classified and...
Bal cont.: ...that is correct but the FBI needs to conduct, consistent with nat sec obligations, that review. I would ask that counsel be instructed by court not to further review those spreadsheets, not to send them to anyone else while the FBI conducts a classification review..
Bal:...of msgs sent by other people in that spreadsheet. As soon as we have an answer to that, if we're in a position to, we'll provide a revised spreadsheet to the court and ask counsel to delete the existing spreadsheet in their materials.
Bal: I don't know if this will short circuit anything, but certainly, we overproduced Jencks here. One view of this is we could claw all back and just put Miller's Jencks forwd, I'm not intending that, our intention is merely to pull any classified information and provide them...
Bal: ...with something that looks substantially similar to what they do have
Kelly: I remember the email Kenerson sent (last night) and maybe, it was more focused on Jencks than the classified issue, but knowing what you know now...
Kelly: I remember the email Kenerson sent (last night) and maybe, it was more focused on Jencks than the classified issue, but knowing what you know now...
Kely cont:... what is the timeframe you can say ok, we found some small bit or whatever, to complete your review
Bal: I expect we can complete it today, my FBI counterparts left mid-argument to start the process seeing where we were headed.
Bal: I expect we can complete it today, my FBI counterparts left mid-argument to start the process seeing where we were headed.
As far as 6th amendment and scope issues, there's only 1 set of msgs that Balantine says she's concerned about and that's a msg from a special agent to Miller about being directed to destroy 338 items of evidence by her supervisor.
Balantine: That could impact classified equity so i would ask that this not be a portion of arguments. everything else counsel has raised to us does not implicate classified equity
Judge Kelly: I think to try and wrap this issue, I think it makes sense for me to order the defense to do what the govt asked until further notice which is not to further review that document and not to send it to anyone else. You're retaining possession of it for the moment
Kelly tells Balantine govt should file status report by tomorrow morning to give him and defense a sense of where we are and if there's something further the govt wants Kelly to order, he'll do that. But he cautions, not without hearing from defense first.
Balantine agrees.
Balantine agrees.
Status report will be filed by end of day, Balatine says.
Kelly says if its more productive to have it in by tomorrow morning, that's fine too.
Kelly says if its more productive to have it in by tomorrow morning, that's fine too.
Balantine says govt is happy to work with court security to make sure doc is filed properly. It's classified so you can't file it simply under ex parte seal.
Toggling away from this issue, Judge Kelly says, there's still issue with Smith's cross of witness...
Kelly: How much can Miller be tagged for this since she wasn't person who compiled it?...It's an interesting question about what the scope of the cross can be on this topic
Kelly: How much can Miller be tagged for this since she wasn't person who compiled it?...It's an interesting question about what the scope of the cross can be on this topic
Kelly: If any other party wants to file something along those lines and the process over next day and a half shows more information... by 5pm tomorrow, or whatever you'd like, I can read it over the weekend and if we're in position on Monday to plow fwd with cross...
Kelly cont.: we'll be in a better position...
Nick Smith thanks Judge Kelly for this.
Pattis then asks if we're seated next Friday.
Kelly says it's doubtful we'll get a half day at this pt; he's had too many sentencing piling up
Nick Smith thanks Judge Kelly for this.
Pattis then asks if we're seated next Friday.
Kelly says it's doubtful we'll get a half day at this pt; he's had too many sentencing piling up
Hernandez has a sentencing in front of another judge next Friday...
Kelly says we'll address it first thing Monday for sure but it doesn't look like we'll be able to clear any time for next Friday.
Kelly says we'll address it first thing Monday for sure but it doesn't look like we'll be able to clear any time for next Friday.
And with that, Judge Kelly adjourns the court day.
We will return on Monday.
I'll have a write up about this wild yet short week in court for @emptywheel on Friday.
We will return on Monday.
I'll have a write up about this wild yet short week in court for @emptywheel on Friday.
• • •
Missing some Tweet in this thread? You can try to
force a refresh
