Case 4:12-cr-00578 Document 213

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

UNITED STATES OF AMERICA VS. TAM NGUYEN

CR. NO. H - 12 -578

GOVERNMENT RESPONSE TO DEFENDANTS MOTION TO DISMISS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW the United States of America, by and through Kenneth Magidson, the United States Attorney for the Southern District of Texas, and would show this Honorable Court in response to the defendants Motion to Dismiss as follows: 1. The first paragraph of Mrs Silvermans Motion to dismiss contain several misstatements of facts. On October 9, 2012, the experts were at DEA and had began selecting samples of the plants pursuant to the Courts Order of October 4, 2012 [Docket #194]. The defense expert had been at DEA for about an hour collecting the samples pursuant to the Courts Order before Mr. Silverman arrived. I had been informed by the Agents assisting in the collection, that the experts had stated that they were under instructions to collect only stems and root balls and not plant material. The Agents, along with the experts who wanted a break, went to the lobby area to escort Mr. Silverman into the vault area. The Agents informed Mr. Silverman that he would be recorded while he was in the vault area. Mr. Silverman stated that would be fine, lets

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go. When all arrived in the vault area Mr. Silverman met briefly with the experts in private by stepping down the hall. Nothing was overheard nor recorded by the agents. When Mr. Silverman finished his conversation with the experts, he was informed that we needed to clarify exactly what was going to be collected. Mr. Silverman was never interrogated, confronted nor were demands made of him. He was simply asked if the experts were instructed to collect stems and not plant material. We needed to be clear to avoid any miscommunications about any collections of plants to be tested pursuant to the Courts Order. This part of our conversation was recorded and yes Mr. Silverman asked not to be recorded even after he stated to the Agent that he was not opposed to it. He did state that he did not give such instructions to the experts. It did not matter what the experts collected as samples. The purpose of the recorded conversation was to avoid any confusion later or claims that the experts did not follow Mr Silvermans instructions. The only true allegation in the first paragraph of the Motion is that a recording was made of the conversation with Mr. Silverman. Because of his previous false statement that he and his experts were told by me to leave DEA on October 1st, he was called a liar: It is an outright false statement that Mr. Silverman was harassed and not allowed to consult with his experts without being recorded. One cannot ever envision Mr. Silverman ever feeling harassed by a prosecutor, particularly this one. 2. After Mr. Silverman left DEA on October 9, 2012, Mr. Wimbish and his assistant completed the collection of what samples they thought sufficient, to comply with Mr. Silvermans wishes and the Courts Order. They inspected and took photographs of every bag of the houses searched on August 21, 2012, but only selected samples of stems and root balls from 19 locations. None of the samples collected contain leafy matter and were -2-

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not truly representative samples. 3. Since Mrs. Silverman chose to bring up what happen on the prior occasions, her mis-statements of the facts require correcting again. Magistrate Judge Nancy Johnson gave the defense a specific time frame until September 16th to count and inspect the marijuana plants, allowing for the destruction of the plants after that time. The plants were counted taking the entire week of September 10th. What followed next was a series of Motions and responses ending up with the defense collecting samples of the marijuana on October 1, 2012, to be tested by an independent lab. The defense experts arrived first on October 1, 2012, and began to collect samples. All was going well until Mr. Silverman arrived. Mr. Silverman was shown by his experts what samples they had collected and Mr. Silverman was visibly upset. The following conversation occurred in the vault among the marijuana plant with the Agents present. Mr. Silverman stated that he was not pleased. He stated that he wanted samples from the plants that did not contain THC. The expert informed Mr. Silverman that all parts of the plants have THC with various levels of THC being present. Mr. Silverman instructed the expert to only collect samples from the area of the plants that would not have THC. At this point, Mr. Silverman and the experts left DEA to confer and returned a short time later. It seemed that Mr. Silverman and the experts had come to an agreement as to what was to be collected. Shortly after their return to DEA, the Agent called and informed me that Mr. Silverman wanted to count the plants over again. The plants had already been counted by the same experts taking the full week of September 10th. I informed Mr. Silverman over the telephone that the current Order allowed the taking of samples and not counting. -3-

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Further that the plants had already been counted and he could not count the plants again since the order was clear. The Agent called me shortly after my conversation with Mr. Silverman and informed me that Mr. Silverman and the experts had packed up their things and abandoned the collection of samples. They had left DEA and did not return. 4. The next thing to occur is the filing of the Motion of October 4, 2012 [Docket #191] followed by the hearing before the Court. The Motion had an attached affidavit by the expert Mr. Wimbish. The affidavit contains misleading statements, in particular his statement that I ordered him and Mr. Silverman to leave DEA and not return. I never ordered Mr. Silverman to leave DEA and most certainly did not order the expert Mr. Wimbish to leave. The expert was never a party to the conversation over the telephone nor was the subject matter discussed in his presence at DEA . It would have been impossible for me to order anything of him or from him. The only way he could have made that statement a part of his affidavit is if Mr. Silverman falsely told him, he was ordered to leave by me. This not the first affidavit the expert has filed in which mis-leading statements have been made. When they left and abandoned the collection of samples of the plants, it was at Mr. Silvermans decision and no one elses. Mr. Silverman was simply informed that he could not count the plants again since the order only called for the collection of samples. 5. Mrs. Silverman continues to repeat allegations that are inconsistent with the facts. Any impediment or delay in the selection of the sample plant material has been directly caused by the defense, in particular, Mr. Silverman. As stated, Mr. Silverman abandoned the selection of the plants on October 1, 2012, the first occasion they had to collect their samples. Mr. Silverman made the decision to leave DEA on his own. He was -4-

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not ordered to leave. The only reason that can be surmised for the abandonment of the collection is that Mr. Silverman was not happy that he had to follow the Courts Order allowing the collection of samples instead of counting them. The Government has never objected to the defense collecting their samples for independent testing. The Government objected to Mr. Silvermans attempt to circumvent the Courts Order to accomplish some other agenda other then the collection of samples. On September 9, 2012, Mr. Silverman, according to what Mr. Wimbish told the agents, wanted them to collect only stems and root balls. The Government was not objecting to whatever sample the defense wanted to collect, but merely wanted a clarification by Mr. Silverman on what the experts were instructed to collect. As stated, a clarification was needed to prevent any future argument by the defense, that the experts misunderstood the Courts order or Mr. Silvermans instructions. Mr. Silverman decided to leave, which was his right. 6. With Mr. Silverman gone, Mr. Wimbish and his assistant successfully continued to collect samples following whatever instruction they were given by Mr. Silverman. The Government never interfered with the collection of any of the samples from the bags from each of the locations. Nor did the Government interfere in any manner with Mr. Silverman ability to consult with his experts in private. On one occasion, they left the vault and went outside to confer. Mrs. Silvermans statement that the Government refused defense counsel to privately meet with the experts without it being recorded is an outright fabrication. That she is simply repeating what Mr. Silverman told her, does not make it less of a fabrication. The Government was never a party to any discussions or instructions Mr. Silverman may have given his experts. Mr. Silverman was always free to leave the vault

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area to confer with his experts, which he did on a couple of occasions. To make it clear the only thing that was recorded was my conversation with Mr. Silverman on the 9th. 7. Mrs. Silverman makes a statement and allegation in paragraph 4, that requires specific mention. The statement further illustrates that it is the defense who has been creating the issues which delayed the selection of the samples ordered by the Court. Mrs. Silvermans statement that; [T]he government has prevented defense counsel from having reasonable access to the defense consulting expert, because the government refuses to allow defense counsel to privately consult with the defense expert while he was examining and selecting evidence for testing in the evidence room. The government has prevented defense from accomplishing a reasonable inspection of the evidence, because it prevented the consultation between counsel and the defense expert during examination

is without a doubt the most outrageous and unreasonable demand and statement yet made. Mr. and Mrs. Silverman must know, that DEA is prohibited and will never allow anyone in the evidence room containing not only the marijuana in this case, but other controlled substances from other cases without an Agent escort. I would think that even a lay person not familiar with the legal process would know that letting anyone free and unescorted access to the DEA vault containing controlled substances is a ridiculous notion.

8. The defendants Motion is without merit and the allegations in the defense Motion are perversions of the facts. The Government request that the defendants Motion to Dismiss be denied. Further that there are no violations of Rule 16 and any such

allegations are without merit. The Government submits that it has not interfered with the constitutional rights of this or any other defendant joining in the Motion by taking the steps necessary to ensure that the Courts orders are adhered to by the defense. -6-

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Further, that the Motion is moot as the defense samples have been successfully selected by the defense experts. The discovery process in this complex case pursuant to Rule 16 is just beginning. The Government respectfully request that the defendants Motion for Sanctions be summarily denied

Respectfully Submitted, KENNETH MAGIDSON United States Attorney

By:

////JR/////// JESSE RODRIGUEZ Assistant United States Attorney

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Response to the Defendants Motion to Dismiss the indictment was sent to defense counsel via the ECF email system on this day of October 2012.

///JR/// Jesse Rodriguez Assistant U.S. Attorney (713) 567-9581

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

UNITED STATES OF AMERICA VS. TAM NGUYEN

CR. NO. H - 12 -578

ORDER On this day came to be heard the Defense Motion for Rule 16 Sanctions and the Governments Response in the above numbered and styled cause. The Court finds that the Defense expert has completed selecting the samples making the Defense motion moot. Further that there have not been any violation of Rule 16. Said Defense Motion for Sanctions is hereby, DENIED .

SIM LAKE UNITED STATES DISTRICT JUDGE

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