Professional Documents
Culture Documents
CHRISTOPHER LITCHFIELD,
Defendant.
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
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
1
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
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
2
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.
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
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.
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
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
Another video that the Government failed to disclose revealed that the DisruptJ20
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
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
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”).
5
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
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
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”).
6
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,
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.
7
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
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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
Andrew O. Clarke
ANDREW CLARKE LAW, PLLC
1712 I Street NW, Suite 915
Washington, DC 20006
(202)780-9144
a.clarke@aclarkelaw.com
Cary Clennon
P.O. Box 29302
Washington, D.C. 20017
(202) 269-0969
clennonlegal@hotmail.com
Mark L. Goldstone
1496 Dunster Lane
Rockville, Maryland 20854
(301) 346-9414
mglaw@comcast.net
Charles P. Murdter
601 Pennsylvania Avenue NW
Suite 900 South
Washington, D.C. 20004
(202) 638-6959
murdterlaw@hotmail.com
Respectfully,
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.
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1 APPEARANCES:
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1 P R O C E E D I N G S
20 Mr. Vasquez.
23 ready to proceed.
5 row.
9 present.
13 who is present.
21 seated.
3 trial groups.
15 7216.
19 go.
22 sorry.
2 violations.
7 Daniel Meltzer.
14 prejudice.
22 that.
13 four.
18 proceeding?
21 rioting.
24 a misdemeanor.
3 points as far as --
8 property.
10 Yes.
15 Count.
16 Her --
18 count.
20 inciting.
7 this case has always been about the conduct and the
10 D.C.
13 case.
17 the defendants.
7 just to consult --
20 Ten minutes.
5 argues --
11 the --
14 without prejudice.
18 now.
22 suppress?
10 decide.
19 matters.
3 evidence.
8 dismissed, it doesn't --
14 hear --
16 further issues.
20 Dylan Petrolhilos.
10 conceding.
12 Brady violation.
18 factors in which --
22 mind, there are two distinct Brady issues. One was -- one
20 the defense.
22 factors.
25 block.
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1 The second was: Did the recording contain
7 conduct?
24 testifying about.
4 Brady violation.
8 the fact that, again, we would not have had any of this
15 anything."
11 earlier.
15 Vaughan.
4 Mr. Litchfield.
5 Court's order.
15 FBI?
7 information, what videos they may have had about the day
11 that information.
16 the fact that Project Veritas and the FBI had met.
4 met with an agent. They had sent them two clips, one was
7 cause a disturbance.
9 interrupt.
15 about meetings that occurred between the 13th and the 20th
18 Do you --
4 Office had.
8 interaction with them. And that was the extent. And that
16 that they met with them on the 13th. But it says that
11 received.
15 relevant.
17 ability, to --
19 communications?
2 with that.
23 Adelmeyer attended.
2 plannings.
15 thing.
18 One was relevance; but two was also the privacy of the
18 criminal prosecutions.
23 exculpatory information.
17 extreme of a sanction.
21 Pemberton?
24 Court.
7 represented.
9 moment.
23 video.
25 at this time.
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1 If I could take a moment, if there's a specific
10 talking about. I'm not sure exactly what that one was,
2 Veritas videos.
11 Dylan Petrolhilos.
12 counsel.
12 on a Pinkerton theory.
21 prejudice.
5 to riot?
9 at Logan Circle --
2 trial judge?
4 counsel --
21 property.
11 hoping --
16 be proceeding on Counts 1 --
19 4 and 5?
23 Monday?
25 dire day --
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1 THE COURT: Jury selection, yes.
3 Court, that --
9 week?
15 Everybody else?
19 stay in town.
23 Thank you.
25 to on Monday?
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1 THE COURT: Judge Dayson.
21 in their trial.
3 resources?
7 understand --
12 very much.
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1 CERTIFICATE OF REPORTER
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1 I further certify that the foregoing 44 pages
9 ____________________________
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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:
5 general categories.
13 Court.
48
1 the government had provided planning videos for the
6 was a moment where his face was visible and so that part
8 where the camera was panning and captured the image of the
10 cropped.
22 IWW Union and it doesn't seem like they are aware of the
25 statement by the --
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1 MR. BASET: Creator of the video after he left
2 the planning meeting and had left for the day, it appears.
7 Paratos (sic).
11 part was cut out. It was edited and I think Ms. Kerkhoff
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1 tends to -- and maybe I'm not smart enough to figure it
22 MR. BASET: So --
24 investigate.
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1 THE COURT: Okay. So why are you saying that's
2 not Brady?
10 or --
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1 would be at this point where their meet -- statements made
11 context of it.
24 right position.
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1 making these representations to the Court.
6 (Break.)
8 order.
11 Mr. Basser.
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1 that were recorded and already disclosed to the defense.
10 follow up.
20 produced this.
23 video.
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1 And, again, the representations made by your office at
2 that point in time were they were just two cropped pieces.
19 was --
21 of coming off the top of her head what was clipped and
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1 irrelevant and because the basis of that opinion is based
18 march.
22 three videos.
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1 meeting? They were breakout sessions that you have videos
2 of?
16 those videos.
23 Did I misunderstand?
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1 planning videos. There was a deplorable video from a
8 investigation.
12 THE COURT: So --
16 group.
23 discussed.
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1 THE COURT: Right. But at the same time, the
19 enough.
20 Anything else?
23 motion?
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1 THE COURT: You have to identify yourself and
5 AUS Kerkhoff was just speaking, you know, off the top of
9 set.
17 speaking to.
23 echelon.
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1 think the Brady violation is clear. At this point,
6 information.
8 that with respect to any other video, any other video was
9 edited.
20 defense.
24 I'm not sure but at this point, but this has been a
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1 been videos that have been edited. The government has
3 them on their word and now here we are, you know, two
19 from April 12th where she does not mention that this end
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1 that, your Honor.
16 videos, you will find two sub folders under the planning
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1 THE COURT: Well, that's what counsel proffered.
10 your Honor.
23 argument?
65
1 with do we have the entire -- well, given the fact the
11 to --
22 think about --
66
1 that there would be some sort of missing evidence type of
2 instruction.
4 this part of the video was not initially disclosed but was
16 advance.
67
1 between now and then. And the government can certainly
5 to assist?
11 of this comment.
16 this investigation.
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1 have been because of an inadmissible, non-Brady statement.
7 themselves.
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1 MR. CLENNON: Before your Honor rules, I just
2 want to make --
8 I think a little bit too far left field on what the actual
9 issue is here.
16 information.
18 that it's not the issue of the timing. I mean, it's the
70
1 should be left with the misimpression that may have been
3 knowledge.
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.
15 it.
24 session.
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1 MR. CLARKE: And that's how it's described by
14 understand.
18 identified.
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1 which this redaction was made that we are not made aware
2 of.
4 first trial?
7 video.
15 portion and, say, okay that's the end of it. They are
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1 THE COURT: No, I understand. As I understood
3 fact that the meeting had ended and the individual was
7 video.
20 deliberate.
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1 Brady or Rule 16. It should have been turned over to the
2 defense.
6 the fact that the government has disclosed and has been
9 how it occurred.
12 clarity, not under the cloud that we are going to give you
15 information.
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1 the Court's concern, but why this statement was not turned
9 strategy.
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1 MR. CLENNON: Okay.
24 have left is --
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1 THE COURT: -- a motion to suppress.
5 information.
13 previously.
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1 part of the indictment as Count 11. We had indicated --
6 Mr. Goldstone?
19 returning Wednesday.
25 next Wednesday.
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1 THE COURT: That's fine.
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1 Thursday. I think we have about a half hour worth of
2 discussion.
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1 something that can be answered at this juncture, but
10 inquire.
13 should have more time on this issue, so, I'm aware that
17 unless again --
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1 disappointed but I have to decide for the defendants in
2 this case.
13 particular individual.
20 made.
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1 MR. BASET: Thank you, your Honor.
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1 (Proceedings concluded at 1:06.)
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1 CERTIFICATE OF REPORTER
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Exhibit 4
SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA
CRIMINAL DIVISION – FELONY BRANCH
Defendants.
Clay/Caly Retherford, and Caroline Unger (collectively, “Defendants” or “June 4 Trial Group”)
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
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
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
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
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
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.
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
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.
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
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
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
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
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
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.
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
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.
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
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
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
Petrohilos, who informed everyone of when and where to meet and the purpose of the “anti-
Unidentified Speaker: “We have an anti-capitalist black bloc march… which Dylan
will talk about”
* * *
12
Defendant Petrohilos: “Location is 10am Logan Circle”
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.”
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
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.”
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.
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.
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
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?
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
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.
As he left the January 8, 2017 meeting, Matt did not have the sense that
Project Veritas had eight individuals infiltrate various DisruptJ20 meetings. See
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
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,
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.
coconspirator statements the Government designated, this is the only statement in which a
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
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.
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:
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.
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
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.
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
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
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.
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”
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
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
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?”).
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
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
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.
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
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
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
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
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
misrepresentation by altering the key language from the transcript. The Government writes:
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
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?
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
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).
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
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
33
Dated: July 23, 2018 Respectfully submitted,
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
35
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
Respectfully,