Barrett Brown Court Documents

Case 3:12-cr-00317-L Document 112 Filed 04/23/14
Page 1 of 2 PageID 868
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ___________________________________________ UNITED STATES OF AMERICA v. BARRETT LANCASTER BROWN | | | | | No. 3:12-CR-317-L No. 3:12-CR-413-L No. 3:13-CR-030-L
ORDER Before the court is Governments Unopposed Motion to Vacate the Agreed Order Re: Extrajudicial Statements and to Unseal Documents, filed April 21, 2014. After reviewing the Unopposed Motion and the provisions of the Plea Agreement signed by the parties, the court finds that Barrett Brown waived his right to a jury trial in causes numbered 3:12-CR-317-L and 3:12-CR-413-L, and the government agreed to dismiss any remaining counts in those matters and to dismiss the Indictment in cause number 3:13-CR-030-L. Therefore, the court finds that the motion should be and is hereby granted. It is hereby ordered that, the courts September 4, 2013 Agreed Order Re: Extrajudicial Statements (document number 93 in cause number 3:12-CR-317-L, document number 55 in cause number 3:12-CR-413-L, and document number 53 in cause number 3:13-CR-030-L) is hereby vacated.
ORDER - Page 1
It is further ordered that the following documents are hereby unsealed: DOCUMENT Factual Resume Plea Agreement Motion to seal the Plea Agreement and Factual Resume Opposition to Browns Motion to Dismiss the Indictment Motion to Seal Governments Opposition to Browns Motion to Dismiss Governments Opposition to Browns Motion to Dismiss Sealed Order re: Motion to Seal Motion to Seal Governments Opposition to Browns Motion to Dismiss 3:12-CR-317-L 109 108 104 3:12-CR-413-L 76 75 68 3:13-CR-030-L
61 59
101 100 99
It is so ordered this 23rd day of April, 2014.
_________________________________ Sam A. Lindsay United States District Judge
ORDER - Page 2
Case 3:12-cr-00317-L Document 104-2 Filed 03/31/14
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ___________________________________________ UNITED STATES OF AMERICA v. BARRETT LANCASTER BROWN ' ' ' ' '
No.
3:12-CR-317-L
GOVERNMENTS OPPOSITION TO BROWNS MOTION TO DISMISS THE INDICTMENT, HIS REQUEST TO STRIKE SURPLUSAGE, AND FOR A BILL OF PARTICULARS
1.
The United States Attorney for the Northern District of Texas, by and through the
undersigned Assistant United States Attorney, files this opposition to Browns Motion to Dismiss the Indictment. BROWNS CLAIMS SUMMARIZED 2. Brown sets out two points in support of his motion to dismiss. First he claims that
Counts One and Three fail to state an offense regarding a true threat. Second he claims that Count Two fails to allege the essential elements of the crime charged, specifically an unlawful agreement and an overt act. 3. Third, as an alternative to his first two points, Brown requests that the court strike
surplusage or order the government to file a Bill of Particulars.
Government's Opposition to Motion to Dismiss - Page 1
THE GOVERNMENTS OPPOSITION SUMMARIZED 4. Regarding Browns first point, Counts One and Three adequately state an offense.
Browns statements are not entitled to First Amendment protection under the true threat doctrine because his [statements] would have reasonably been considered a threat to Federal Bureau of Investigation (FBI), Special Agent (SA) [RS]. Porter ex re. LeBlanc v. Ascension Parish School Bd., 301 F.Supp.2d 576, 585 (M.D.La. January 21, 2004). The question of whether Browns statements constituted a true threat is an issue of fact for the jury. 5. 6. Regarding Browns second point, Count Two adequately states an offense. Regarding Browns request to strike surplus, the challenged language is relevant
and inextricably intertwined with the charged conduct. Brown fails in his burden to show that the requested language is not relevant to the governments case and is prejudicial and inflammatory. PROCEDURAL BACKGROUND 7. In or about September 2012, the United States Magistrate Judge Paul D. Stickney
issued a Criminal Complaint for the arrest of Barrett Brown. On the same evening, the Federal Bureau of Investigation arrested Brown pursuant to an arrest warrant issued for the complaint. On October 3, 2012, a federal Grand Jury returned a true bill of Indictment charging Brown with three separate violations of federal law. 8. Count One charged Brown with violations of 18 U.S.C. 875(c), that being
transmitting threats via the Internet to injure another person.

From on or after March 6, 2012, through and including on or about September 12, 2012, in the Dallas Division of the Northern District of Texas, the defendant Barrett Lancaster Brown, knowingly and willfully did transmit in interstate and foreign commerce communications containing threats to injure the person of another, that being, Barrett Lancaster Brown transmitted messages through the Internet on his Twitter.com account and his YouTube.com account, threatening to shoot and injure agents of the Federal Bureau of Investigation, and specifically focusing on Federal Bureau of Investigation Special Agent [RS]. 9. Count Two charged Brown with conspiring with another to make restricted personal
information about a specific FBI agent and his family publically available (18 U.S.C. 371 and 119). Between on or about March 5, 2012 through on or about September 12, 2012, in the Dallas Division of the Northern District of Texas, the defendant Barrett Lancaster Brown, knowingly and willfully did combine, conspire, confederate, and agree with other persons known and unknown to the grand jury, to commit an offense against the United States, to wit: to make restricted personal information about Federal Bureau of Investigation Special Agent [RS] and his immediate family publically available with the intent to threaten and intimidate the Special Agent and to incite the commission of a crime of violence against the Special Agent in violation of 18 U.S.C. ' 119, in that in September 2012 in the Northern District of Texas, Barrett Lancaster Brown requested another person known to the grand jury to assist him find on the Internet restricted information about Federal Bureau of Investigation Special Agent [RS] and [RS]=s family, and that other person agreed to do so, and furthermore, the other person did conduct a search on the Internet for the restricted information. 10. Finally, Count Three charged Brown with retaliation against a law enforcement
officer in violation of 18 U.S.C. 115(a)(1)(B) and (b)(4). Between on or about March 5, 2012 through on or about September 12, 2012, in the Dallas Division of the Northern District of Texas, the defendant Barrett Lancaster Brown, did knowingly and willfully threaten to assault a Federal Law enforcement officer, with the intent to impede, intimidate, and interfere with such Federal Law enforcement officer while engaged in the
performance of official duties, and with the intent to retaliate against such Federal Law enforcement officer on account of the performance of official duties. RESPONSE TO BROWNS FIRST POINT: COUNTS ONE AND THREE ADEQUATELY STATE AN OFFENSE 11. Count One (18 U.S.C. 875(c)) requires the government to prove that (1) Brown
knowingly transmitted a communication in interstate commerce, and (2) the communication contained a threat to injure the person of another. Count Three
(18 U.S.C. 115(a)(1)(B) and (b)(4)) requires the government to prove that (1) Brown knowingly threatened to assault a federal law enforcement officer, (2) at the time of the threat, the individual threatened was a federal law enforcement officer, and (3) Brown acted with the intent to impede, intimidate, or interfere with a federal law enforcement officer while engaged in the performance of his official duties or Brown acted with the intent to retaliate against that official on account of the performance of his official duties. The only aspect of the essential elements complained about by Brown is whether the threat was a true threat. Brown statements constituted true threats, especially when viewed
in light of the surrounding circumstances. The determination of whether this is a true threat is an evidentiary issue, and the task of interpretation is for the jury. If a reasonable recipient, familiar with the contents of the communication, would interpret it as a threat, the issue should go to a jury. United States v. Raymer, 876 F.2d 383, 391 (5th Cir. 1989), quoting Martin v. United States, 691 F.2d 1235, 1240 (8th Cir.1982).
Browns Conduct as Set Out in the Introduction to the Indictment is Intrinsic to Browns Indicted Conduct 12. Viewing Browns comments and conduct as a whole, there is no doubt the
statements by Brown set out in the Introduction to the Indictment constituted a true threat, reasonably causing his target, FBI SA [RS] to be apprehensive and to have concern for his own personal safety and the safety of his family. Browns past involvement with Anonymous is crucial to understanding the significance of his threatening comments and conduct. On many occasions, Brown bragged about his association with Anonymous and claimed that he created ProjectPM to further those actions of Anonymous that he supported. Brown recruited personnel to work for him by culling from the participants in Anonymous. Brown communicated with his associates through the Internet via e-mail, Twitter.com, Youtube.com, Tinychat.com, IRC channels related to Anonymous and ProjectPM, and through interviews he gave to media outlets. Furthermore, Brown has privately stated that he intended ProjectPM to be a front organization for Anonymous which secretly plotted the overthrow of the government. Brown used Anonymous and ProjectPM to target government employees on multiple occasions, particularly government employees in or associated with the United States justice system. 13. Brown assisted Anonymous members by identifying targets; providing advice to the
Anonymous hackers on what data to steal; and using the stolen data for further targeting, as well as to harass and occasionally to threaten those targets. In some cases, Brown offered
monetary bounties for producing personal identifying information on law enforcement officers whom he had targeted. 14. More specific to the indicted threats, Brown targeted FBI SA [RS] for (1) seizing
Browns computers and property during the legal execution of a search warrant, and (2) Browns fabricated contention that [RS] harassed and threatened Browns mother. Brown publically vented his anger at the government, at the FBI, and specifically at FBI SA [RS]. Brown sought the assistance of Anonymous members and followers to provide information to identify and locate FBI SA [RS] and his children. Brown encouraged his associates to retaliate, revolt, take to the streets, act, and kill every government. [sic] Brown personally threatened to shoot any law enforcement officer that appeared at his door, and announced publically that he was armed, came from a military family, and knew how to shoot. As evidence of his abilities, he posted a video of himself shooting a long gun. Brown tweeted, the [t]hreat to put my mom in prison last mistake #Agent[RS] will ever fucking make and posted links to three fifteen minute home-made videos in which he ranted and raged and threatened physical harm to FBI SA [RS]. On the videos, Brown stating that he was fucking angry at FBI SA [RS], that [RS]s life [was] over and that he was going to ruin [[RS]s] life and look into his fucking kids. Brown specifically said he would shoot all of them and kill them if they came to his door, referring to law enforcement in general and specifically to the FBI. Browns concluding remarks in the third video predicted a standoff, resulting in Browns death and the death of at least two FBI agents. Brown stated, A[a]nd frankly, you know, it was pretty obvious I
was going to be dead before I was forty or so, so, I wouldnt mind going out with two FBI side arms like a fucking Egyptian Pharaoh. Adios.@ True Threat 15. Crimes that contain a "threat" element such as a violation of 18 U.S.C. 875(c)
should be interpreted "with the commands of the First Amendment clearly in mind." Watts v. United States, 394 U.S. 705, 707 (1969). True threats are a historic and traditional exception to the bar against content-based restrictions on speech. See United States v. Alvarez, 132 S.Ct. 2537, 2544 (2012). They are statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. Virginia v. Black, 538 U.S. 343, 359 (2003) (Emphasis added). Per the Fifth Circuit Pattern Jury Instructions 2012 Edition, [a] "threat" is a serious statement expressing an intention to injure [kidnap] any person, which under the circumstances would cause apprehension in a reasonable person, as distinguished from mere idle or careless talk, exaggeration, or something said in a joking manner. See United States v. Daughenbaugh, 49 F.3d 171, 173 n.2 (5th Cir. 1995) (approving this instruction on the definition of threat with respect to 18 U.S.C. 876); United States v. Turner, 960 F.2d 461, 464 & n.3 (5th Cir. 1992). 16. It is not necessary to prove that the defendant actually intended to carry out the
threat made. United States v. Morales, 272 F.3d 284, 288-289 (5th Cir. 2001). It is not necessary to prove that the defendant actually wrote or created the communication. United States v. Turner, 960 F.2D 461, 463-464 (5th Cir. 1992). It is not necessary to
prove that the defendant communicated the threat directly to the victim. Morales, 272 F.3d at 288. It is not necessary to prove that the defendant was even capable of carrying out the threat. United States v. Guevara, 408 F.3d 252, 258 (5th Cir. 2005) (dealing with a violation of 18 U.S.C. 2332a). What the government must prove beyond a reasonable doubt is that the defendant transmitted or sent the communication containing a "threat" in interstate commerce, and the threat was such to cause a reasonable person to be apprehensive, i.e. anxious or uneasy. 17. Fed. R. Crim. P. 7(c)(1) provides that an indictment must be a plain, concise, and Rule
definite written statement of the essential facts constituting the offense charged.
7(c)(1) is designed to simplify indictments by eliminating unnecessary phraseology which needlessly burdened many indictments under the former practice. United States v. Debrow, 203 F.2d 688, 701-02 (5th Cir. 1953). Counts One and Three track the language in the applicable statutes, thereby providing the defendant notice of the charges against him. Case Law Examples of True Threats 18. Most courts view the intent element in a threat crime as objective. A 875(c)
prosecution, then, generally requires the government to establish [a threat that] a reasonable observer would construe as a true threat to another. Once the government makes this showing . . . it matters not what the defendant meant by the communication, as opposed to how a reasonable observer would construe it. United States v. Jeffries, 692 F.3d 473 (6th Cir. 2012). See also United States v. Martinez, 2013 WL 6182973 (11th Cir.
Nov. 27, 2013); United States v. Elonis, 2013 WL 5273118 (3d Cir. Sept. 19, 2013); United States v. White, 670 F.3d 498, 506-12 (4th Cir. 2012). 19. In Virginia v. Black, 538 U.S. 343 (2003), one defendant burned a cross at a Ku
Klux Klan rally that could be seen by the public; the other two defendants burned a cross on the lawn of their African-American neighbors home. Defendants appealed, arguing that the cross-burning statute violated the First Amendment. In Virginia v. Black, the Supreme Court noted that [t]rue threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. However, the Supreme Court stressed that the speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. (internal citations and quotations omitted). 20. In United States v. Stefanik, 674 F.3d 71 (1st Cir. 2012), the defendant was upset
because a notice of default had issued in a civil case. During a telephone call to a clerks office employee, he said: What kind of douche bags do you hire? I'll come down there with my shotgun and show you who means business. A few minutes later the defendant added, You're lucky I'm only talking on the phone and not driving down there with my shotgun. The First Circuit Court of Appeals found these statement to constitute a true threat, and affirmed the district courts use of a pattern jury instruction (Sand and Seifert) defining the
term intimidate to mean make timid or fearful, to inspire or affect with fear, to frighten, deter, or overawe. 21. In United States v. Stinnett, 313 F. Appx 711 (5th Cir. 2009), a defendant sent
letters to an Immigration and Customs Enforcement agent threatening to shoot him in the head with a gun or plant bombs in the ICE office. The government offered evidence to show that the agent was concerned for his safety and his familys safety. The Fifth Circuit opined that [a] communication is a true threat if in its context it would have a reasonable tendency to create apprehension that its originator will act according to its tenor. 22. In United States v. Guevara, 403 F.3d 252 (5th Cir. 2005), a defendant sent a letter
to a District Judge, stating I am sick and tired of your games[.] All [A]mericans will die as well as you. You have been now [sic] exposure [sic] to anthrax. Mohammed Abdullah. The substance turned out to be hair gel and powdered cleanser. Following the rationale in United States v. Reynolds, 381 F.3d 404, 406 (5th Cir.2004) (see below), the Fifth Circuit Court of Appeals opined that there was no requirement of a reference to a future act. The court also reiterated that the government need not prove that the defendant intended, or was able, to carry out the threat and further held that it was not error for the jury to be so instructed. 23. In United States v. Reynolds, 381 F.3d 404 (5th Cir. 2004), during a dispute with his
mortgage company, a defendant told the customer service agent over the telephone that he just dumped anthrax in [their] air conditioner. The Fifth Circuit Court of Appeals adopted the definition of threaten in 2332a as articulated in United States v. Myers, 104
F.3d 76, 79 (5th Cir. 1997), that being a communication that has a reasonable tendency to create apprehension that the originator of the communication will act as represented. 24. In United States v. Morales, a defendant had the following conversation another
person in a chat room: Morales: I will kill Lees: huh? me You will kill whatme Morales: TEACHERS AND STUDENTS AT MILBY (Defendant's high school) Lees: Why do you want to do that Where is Milby? Morales: CAUSE AM TIRED...HOUSTON Lees: are you really going to go and kill people Who has made you mad r u ok do you want to talk to me Morales: YES F NE ONE STANDS N MY WAY WILL SHOT Lees: r u ok Morales: I HATE LIVE Lees: I am here Morales: YES MY NAME S ED HARRIS SEE U N A COUPLE OF MONTHS The other person alerted the Milby High School, and extra security measures were taken. The Fifth Circuit Court of Appeals held that defendant's statements constituted true threats, stating that the statute did not require that the threats be made directly to the intended target. The court iterated its prior standard: the communication in its context would have a reasonable tendency to create apprehension that its originator will act according to its tenor. United States v. Morales, 272 F.3d at 288, citing United States v. Myers, 104 F.3d 76, 78 (5th Cir. 1997), quoting United States v. Bozeman, 495 F.2d 508, 510 (5th Cir. 1974).
25.
In United States v. Myers, 104 F.3d 76 (5th Cir. 1997), a defendant who was
disgruntled with the VA, told a congressional staff member on the telephone that he "would take matters into his own hands" and that they should be sure to have plenty of body bags around. When questioned about his intention during a follow up telephone call, the defendant stated that he was still talking about body bags. He then said he was going to get retribution for my and my family's suffering. You can take that to the bank. When asked what that meant, the defendant said it meant he would do what, ah, like we said in Nam, whatever it takes. Later in the conversation, the defendant said that he had a friend in Seattle who had TOW missiles, and spoke of "coming up there to die." A few weeks later, the defendant called the office of the Paralyzed Veterans of America. In that conversation, the defendant threatened the VA and Congress with damage severe enough to make the explosion in the World Trade Center look like a picnic. He stated that he was head of the militia in this area and made reference to AK-47 rifles being shoved into the faces of congressmen. 26. The Fifth Circuit held in Meyers that whether a statement amount[ed] to a threat
under 875(c) depend[ed] on its context. In order to convict, a fact finder must determine that the recipient of the in-context threat reasonably feared it would be carried out. It was entirely appropriate, then, for the jury to consider the context . . . for the context was directly relevant to how [the victim] perceived the threat. Indeed, it probably would have been inappropriate for the jury not to consider these statements. The Fifth Circuit also
opined that 875(c) was a general intent, not a specific intent, crime, thus the government need not prove that the defendant intended his statements be threats. 27. In Shackelford v. Shirley, 948 F.2d 935 (5th Cir. 1991), a defendant told his former
supervisor on the telephone that the next time the supervisor appeared at the defendants place of business, he would be toting an ass whipping. The Fifth Circuit Court of Appeals held that, as expansive as the First Amendment's conception of social and political discourse may be, threats made with specific intent to injure and focused on a particular individual easily fall into that category of speech deserving of no First Amendment protection. 28. In his motion to dismiss, Brown erroneously represented that the unpublished Fifth
Circuit opinion in United States v. ODwyer, 443 Fed.Appx 18, 2011 WL 4448739 (C.A.5 (La)) set out a Fifth Circuit standard for a statement to qualify as a true threat. In reality, the Court in ODwyer only dealt with the specific facts in that case, finding that the threat in that case did not qualify as a true threat. 29. The actual factors considered by the Circuits to determine a true threat include
(1) the recipients reaction, 1 (2) whether the threat was conditional, (3) to whom the threat was communicated, 2 (4) the history of the relationship between the defendant and the victim, and (5) the context in which the threat was made. Brown seeks to have this Honorable Court invade the province of the jury by opining on the existence of a true
1 United States v. Morales, 272 F.3d 284, 287-8 (5th Cir. 2001) (explaining that statement is a true threat if recipient placed in fear of bodily harm and holding that the fact that recipient felt apprehension was factor in true threat analysis.) 2 United States v. Morales, 272 F.3d 284, 288 (5th Cir. 2001) (finding that statements made to a third party in an internet chat room were true threats under 18 U.S.C. 875(c).) Government's Opposition to Motion to Dismiss - Page 13
threat. The question of whether Browns statements constituted a true threat is an issue of fact for the jury. RESPONSE TO BROWNS SECOND POINT: COUNT TWO ADEQUATELY STATES AN OFFENSE
Conspiracy (18 U.S.C. 371) to Make Restricted Personal Information of a Government Employee Publically Available (18 U.S.C. 119) 30. Brown claims that Count Two failed to allege the elements of the 18 U.S.C. 371
conspiracy, specifically an agreement and an overt act. The government contends that the Indictment more than adequately sets out the essential elements of the offense, gives the defendant sufficient notice of the charges against him, and absolutely protects the defendants rights against double jeopardy. 31. Count Two adopts the allegations in the Introduction of the Indictment and reads as
follows: Between on or about March 5, 2012 through on or about September 12, 2012, in the Dallas Division of the Northern District of Texas, the defendant Barrett Lancaster Brown, knowingly and willfully did combine, conspire, confederate, and agree with other persons known and unknown to the grand jury, to commit an offense against the United States, to wit: to make restricted personal information about Federal Bureau of Investigation Special Agent [RS] and his immediate family publically available with the intent to threaten and intimidate the Special Agent and to incite the commission of a crime of violence against the Special Agent in violation of 18 U.S.C. ' 119, in that in September 2012 in the Northern District of Texas, Barrett Lancaster Brown requested another person known to the grand jury to assist him find on the Internet restricted information about Federal Bureau of Investigation Special Agent [RS] and [RS]=s family, and that other person agreed to do so, and furthermore, the other person did conduct a search on the Internet for the restricted information.
32.
An Indictment adequately charges an offense if it (1) enumerates each prima facie
element of the charged offense, (2) notifies the defendant of the charges filed against him, and (3) provides the defendant with a double jeopardy defense against future prosecutions. United States v. McBirney, 2006 WL 2432675, at 8 (N.E. Tex. Aug. 21, 2006) (Fitzwater, J.). The test for validity is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards. United States v. Gordon 780 F.2d 1165, 1169 (5th Cir. 1986). 33. To establish a violation of 18 U.S.C. 371 in the Fifth Circuit, the government must
prove that (1) Brown and at least one other person made an agreement to commit a violation of 18 U.S.C. 119 3 as described in the Indictment; (2) Brown knew the unlawful purpose of the agreement and joined in it willfully, that is, with the intent to further the unlawful purpose; and (3) one of the conspirators during the existence of the conspiracy knowingly committed at least one of the overt acts described in the Indictment, in order to accomplish some object or purpose of the conspiracy. 34. Count Two enumerates the prima facie elements of a violation of 18 U.S.C. 371.
Count Two stated that Brown knowingly and willfully did combine, conspire, confederate, and agree with other persons, satisfying element number one (see preceding paragraph for the elements). Count Two stated that Brown and the other(s) conspired to commit an offense against the United States, to wit: to make restricted personal
3 The essential elements of a violation of 18 U.S.C. 119 are that (1) the defendant knowingly made restricted personal information about a covered person, or a member of the covered persons immediate family, publicly available; (2) the defendant did so with the intent to threaten, intimidate, and incite the commission of a crime of violence against that covered person; (3) FBI SA Robert Smith was a covered person; and (4) the information made public was restricted personal information. Government's Opposition to Motion to Dismiss - Page 15
information about Federal Bureau of Investigation Special Agent [RS] and his immediate family publically available with the intent to threaten and intimidate the Special Agent and to incite the commission of a crime of violence against the Special Agent in violation of 18 U.S.C. ' 119, satisfying element number two. Lastly, Count Two stated that Brown requested another person . . . to assist him find on the Internet restricted information about Federal Bureau of Investigation Special Agent [RS] and [RS]=s family, and that other person agreed to do so, and furthermore, the other person did conduct a search on the Internet for the restricted information, satisfying element number three and further satisfying element number one. 35. The Introduction to the Indictment clearly outlined Browns rage and anger with
FBI Special Agent [RS] and Browns unwavering obsession with hunting down and hurting FBI Special Agent [RS] and his children. Brown encouraged the doxing 4 of law enforcement 5 while he railed against law enforcement and Special Agent [RS] specifically. Brown claimed we are investigating [RS] now 6 (emphasis added) and asked others to [s]end all info on Agent [RS] to [Browns email address] so FBI can watch [Brown] look up his kids. 7
4 To dox meant to acquire personal information about an individual, without that individuals knowledge or permission. The information acquired could include names and aliases, physical addresses, email addresses, phone numbers, social security numbers, financial information (bank, credit card), employment information, identifiers of the individuals family members, etc. 5 Introduction to the Indictment 3:12-CR-317-L, paragraph 2.b. 6 Introduction to the Indictment 3:12-CR-317-L, paragraph 12.a. 7 Introduction to the Indictment 3:12-CR-317-L, paragraph 13.
36.
In his motion, Brown complains that search on the Internet cannot be in
furtherance of making restricting [sic] information public. As Brown well knows, restricted information is defined at 18 U.S.C. 119, as information to include the Social Security number, the home address, home phone number, mobile phone number, personal email, or home fax number of the covered person. 8 A search on the Internet absolutely can result in the acquisition of restricted information. 9 Plus, Browns previous acquisition of restricted information from known hackers, and his continued association with these known hackers leaves no doubt that Brown was more than capable of obtaining whatever information he sought. THERE IS NO SURPLUSAGE 37. Brown asks for following items to be struck from the Indictment: Paragraphs 2-4,
7(a-e),8(a, c, e-f). In the same surplusage argument, Brown requests that the time frame of the criminal conduct as alleged in the indictment be limited to only acts occurring after September 2012. 38. The paragraphs identified as surplusage by Brown are part of the introduction to the
Indictment and are relevant to the offenses charged. Brown fails to prove that the language is not relevant, much less not relevant and prejudicial and inflammatory. 39. Brown mistakenly identifies paragraph 7 as a paragraph with subparts. Paragraph
7 is a stand-alone paragraph. The challenged language sought to be stricken as surplusage
8 18 U.S.C. 2725(4) provides that highly restricted person information means an individuals photograph or image, social security number, medical or disability information.
9 Johnson v. West Pub. Corp., 504 Fed.Appx. 531, **1, (C.A.8 (Mo.) April 9, 2013). Government's Opposition to Motion to Dismiss - Page 17
is relevant and material to the charges alleged in the Indictment. Because the contested language is relevant to proving the crimes charged, it cannot and should not be stricken as surplusage. Also, although an indictment need not set forth the evidentiary details of the offenses charged, see, e.g., United States v. Moody, 923 F.2d 341, 351 (5th Cir. 1991); see also United States v. Williams, 679 F.2d 504, 508 (5th Cir. 1982) (noting that Rule 7(c) does not mean that the indictment must set forth facts and evidentiary details necessary to establish each of the elements of the charged offense.), there is no prohibition against pleading evidentiary allegations, and Brown has cited none. As Brown well knows, the Indictment is not evidence and the parties must establish the admissibility of evidence at trial, despite the Indictments allegations. 40. Fed. R. Crim. P. 7(d) provides that A[t]he court on motion of the defendant may Fed. R. Crim. P. (7)(d). AIt is well settled that a
strike surplusage from the indictment."
motion to strike surplusage from an indictment may be granted only if the challenged allegations are not relevant to the charges and are inflammatory." United States v. Eisenberg, 773 F. Supp. 662, 700 (D. N.J. 1991) (emphasis added) citations omitted except for United States v. Bullock, 451 F.2d 884, 888 (5th Cir.1971). A defendant must establish that the challenged language is Airrelevant, inflammatory, and prejudicial@ to successfully move to strike. United States v. Graves, 5 F.3d 1546, 1550 (5th Cir.1993); (cited in United States v. Solomon, No. 00-11210, 273 F.3d 1108, at * 1 (5th Cir. Sept. 21, 2001). If Athe charge is not materially broadened and the accused is not misled,@
then the surplusage should remain in the indictment. United States v. Quintero, 872 F.2d
107, 111 (5th Cir.1989); United States v. Trice, 823 F.2d 80, 89 n. 8 (5th Cir.1987). Accordingly, if the challenged language is relevant and prejudicial, it should not be stricken as surplusage. United States v. Climatemp, 482 F. Supp. 376, 391 (N.D. Ill. 1979) (A[I]f the language in the indictment is information which the government hopes to properly prove at trial, it cannot be considered surplusage no matter how prejudicial it may be (provided, of course, it is legally relevant)."). The decision to grant or deny a
motion to strike portions of an indictment is left to the sound discretion of the district court. Graves, 5 F.3d at 1550. The standard for striking surplusage is an Aexacting [one]
which is met only in rare cases." Eisenberg, 773 F. Supp. at 700; Solomon, 273 F.3d 1108, at *1 (citing Bullock, 451 F.2d at 888). 41. In effect, the defense has a two-pronged burden. To prevail, the defense must first If the Court
show that the challenged language is not relevant to the charges.
determines that the challenged language is irrelevant, it must then determine whether the language is inflammatory and sufficiently prejudicial to be stricken. Only if the
language is so inflammatory and prejudicial that it cannot be cured with a jury instruction is it appropriate to strike the language. See United States v. Daniels, 159 F. Supp. 2d 1285, 1300 (D.Kan July 13, 2001) ("a proper instruction to the jury ordinarily can alleviate the potential prejudicial effect of contested allegations in the indictment."); Lowther v. United States, 455 F.2d 657, 666 (10th Cir. 1972) (language not prejudicial because of Court's curative instructions); United States v. Figueroa, 900 F.2d 1211, 1218 (8th Cir. 1990) (denial of motion to strike surplusage proper where court repeatedly
instructed jury that the indictment was not evidence of any kind); United States v. Ramirez, 710 F.2d 535, 544-45 (9th Cir.1983) ("court properly instructed the jury both at the outset and at the completion of the trial that the indictment is not evidence against the accused and affords no inference of guilt or innocence"). 42. Brown has failed to prove that the challenged language is not relevant and is
inflammatory and prejudicial, and further that the challenged language, if relevant, is so inflammatory and sufficiently prejudicial that a curative jury instruction could not be used. 43. During the Introduction to the Indictment, Brown was quoted as posting references These references are
to # 10Anonymous, #ProjectPM, Echelon2.org, and blackbloc.
essential to the governments case, to show the context in which Brown made the threatening statements. 44. Paragraph 2a-e of the Introduction of the Indictment sets out postings by Brown Although not all inclusive,
on his Twitter.com account on or about September 4, 2012.
the below sets out at least one reason why each of the below items are relevant. Indictment a. ADon't be a pussy. Call up every facist and tell them you're watching. http://www.youtube.com/watch?v=4gcpt Y8ne14 Y #ProjectPM.@ Relevance In this posting, Brown encouraged his associates to harass government-related authority figures. The attached link contained a recording of Brown calling and harassing such a person using personal identifying information exfiltrated during the breach of H.B.Gary.
10 The hash-tag (#) allows Twitter.com users to organize and categorize postings, which makes the topics easy to search and reference. Government's Opposition to Motion to Dismiss - Page 20
b. AHave you doxed a pig today? Be ready for the #revolution - have a list informationliberation.com/?id=40815 #Anonymous.@ c. ADon't know how to shoot? You've got five years to learn. Maybe less.http://www.youtube.com/watch?v= wkqSIZaBhUY&list=UUv1FlZ4TdveCy va7okPRmSA&index=1&feature=plcp Y #Anonymous #ProjectPM #blackbloc.@ d. A#DHS stocking up on ammo. Are you? http://www.youtube.com/watch?v=wkqS IZaBhUY&list=UUv1FlZ4TdveCyva7o kPRmSA&index=1&feature=plcp Y Don't wait. Retaliate.@ e. AHave a plan to kill every government you meet. #ProjectPM tinychat.com/BarrettBrown #Anonymous Echelon2.org.@
In this posting, Brown encouraged his followers to dox law enforcement. The attached link related to a law enforcement officer that was indicted in a shooting. The attached link accessed a video of Brown possessing, shooting, and reloading a long gun. The video was entitled If only all of Rome had just one neck. Blackbloc referred to a manner of demonstrating or protesting that included acts of violence. In this posting, Brown encouraged his associates to stock up on ammo and to retaliate. The attached link accessed a video of Brown possessing, shooting, and reloading a long gun. The video was entitled If only all of Rome had just one neck. In this posting, Brown encouraged his associates to have a plan to kill governments. On occasion, Brown used an online chat website called Tinychat.com to communicate and coordinate with regarding operations against certain targets of his group.
45.
Paragraph 3a-c of the Introduction of the Indictment sets out postings by Brown Although not all inclusive,
on his Twitter.com account on or about September 7, 2012.
the below sets out at least one reason why each of the below items are relevant. Indictment a. Kids! Overthrow the US government lol https://www.youtube.com/watch?v=pHC dS7O248g Y" b. A@Badger32d I've experienced other end of the gun, watching mom detained by U.S. armed thugs. See you on the streets!@ Relevance In this posting, Brown encouraged his associates to overthrow the US government.
In this posting, Brown gave an explanation as to why he was angry at the FBI and wanted to retaliate.
In this posting, Brown referenced his c. A#ProjectPM - Everyone in #Anonymous with balls is either with us connection to Anonymous and encourages his or awaiting trial. Don't wait. Retaliate.@ associates to retaliate.
46.
Paragraph 4 of the Introduction of the Indictment sets out a posting by Brown on Although not all inclusive, the below
his Twitter.com account on September 7, 2012.
sets out at least one reason why this posting is relevant. Indictment "Organize. Choose your pig. Make your move. Pastebin.com/HFxBIHv #ProjectPM #Anonymous #blackbloc #revolution." Relevance In this posting, Brown encouraged his associates to target a law enforcement officer and act.
47.
Paragraph 7 of the Introduction of the Indictment sets out a re-posting by Brown
on his Twitter.com account on September 10, 2012. Although not all inclusive, the below sets out at least one reason why this posting is relevant. Indictment A dead man cant leak stuff Illegally shoot the son of a bitch. Relevance In this posting, Brown promoted the idea of shooting a person because a dead person cannot talk.
48.
Paragraph 8a, c, e-f of the Introduction of the Indictment sets out postings by Although not all
Brown on his Twitter.com account on or about September 11, 2012.
inclusive, the below sets out at least one reason why each of the below items are relevant. Indictment a. 0 uploading now, dropping in 30 minutes #Anonymous #Wikileaks #ProjectPM #PantherModerns #FBI #Agent[RS]. Relevance In this posting, Brown referenced an ultimatum given to FBI SA [RS], and advised his associates and FBI SA [RS] that he was uploading the first Youtube.com threat video.
c. @AsheraResearch My mother is being threatened with charges by #FBI due in part to your lies. Mention her again and see what happens.
In this posting, Brown expressed his anger surrounding his incorrect perception that the FBI threatened his mother. Brown threatened to retaliate if his mother was mentioned again. e. #ProjectPM backs up its claims, In this posting Brown encouraged his threats. Don't wait. Retaliate. associates to retaliate, and assured his #OpClydeTolson #Anonymous associates that his entity ProjectPM would #Wikileaks back up its threats. The attached link http://www.youtube.com/watch?v=klvP1 accessed the first of three videos wherein Xx6OH4&feature=youtu.be . . . Brown threatened FBI SA [RS] and gave the Agent an ultimatum. Brown sought to retaliate for the search of his and his mothers residences. The video was entitled Why FBI Agent [RS] Has Two Weeks To Send My Property Back, Part 1/3 Brown provided the following information related to the posting of this video: See Echelon2.org for why I'm being raided, harassed, threatened, put at risk by law enforcement officers and private contractors. Echelon2.org is listed on my FBI search warrant which may be seen at Buzzfeed. f. AAs I'll explain further tomorrow, In this posting, Brown contended that any armed person appearing at his door, including I will regard any further armed raids as law enforcement, would be shot. potential #Zeta assassination attempts and respond accordingly.@
A BILL OF PARTICULARS IS NOT APPROPRIATE 49. Brown is correct in that the governments response to his request for a Bill of
Particulars is that the Indictment adequately presents the essential facts and apprises him of the charges against him. Also, the discovery provided by the government provides In January 2014, Brown took
additional information regarding the charged conduct.
advantage of the governments repeated suggestion to meet with the government to
obtain an overview of the governments evidence.
During this meeting the government
provided Brown with additional overt acts attributed to Brown and the identity of the coconspirators and associates referenced in the Indictment. 50. Under the Fourth Amendment to the United States Constitution a defendant in a
criminal action is entitled to be informed of the nature and cause of the accusation.... In order to assure that an accused is provided constitutionally adequate notice, under Fed. R. Crim. P. 7(f), the trial court may direct the filing of a bill of particulars. However, as case law holds, the basis for ordering a bill of particulars is limited. The function of a bill of particulars is to enable the defendant to prepare for trial and avoid prejudicial surprise as well as providing protection from a subsequent prosecution for the same offense. United States v. Burgin 621 F.2d 1352, 1358 (5th Cir. 1980); Wong Tai v. United States, 273 U.S. 77 (1927); United States v. Gorel, 622 F.2d 100, 104 (5th Cir. 1979), United States v. Haas, 583 F.2d 216 (5th Cir. 1978). 51. Courts have uniformly held that a bill of particulars is "not designed to compel the
government to detailed exposition of its evidence or to explain the legal theories upon which it intends to rely at trial," Burgin, 621 F.2d at 1358; United States v. Sheriff, 546 F.2d 604, 606 (5th Cir. 1977); Overton v. United States, 403 F.2d 444, 446 (5th Cir. 1968); Downing v. United States, 348 F.2d 594, 599 (5th Cir. 1965). A bill of particulars is not an investigative vehicle for the defense. "A defendant should not use the Bill of Particulars to obtain a detailed disclosure of the government's evidence prior to trial." United States v. Kilrain, 566 F.2d 979, 985 (5th Cir. 1978).
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ___________________________________________ UNITED STATES OF AMERICA v. BARRETT LANCASTER BROWN ' ' ' ' ' FILED UNDER SEAL No. 3:13-CR-030-L
GOVERNMENTS OPPOSITION TO BROWNS MOTION TO DISMISS THE INDICTMENT 1. The United States Attorney for the Northern District of Texas, by and through the
undersigned Assistant United States Attorney, files this opposition to Browns Motion to Dismiss the Indictment. BROWNS CLAIMS SUMMARIZED 2. Brown sets out four points in support of his motion to dismiss. First he claims that
Counts One and Two fail to state an offense. Second he claims that Count One fails to allege a corrupt mens rea, or that the statute is unconstitutionally vague and overbroad. Third he claims that 18 U.S.C. 1512(c)(2) (Count Two) is inapplicable to Browns conduct. Browns fourth claim is that Counts One and Two are multiplicitous. THE GOVERNMENTS RESPONSES SUMMARIZED 3. Each count in the Indictment unambiguously alleged the elements of the offense,
provided notice to Brown of the charges against him, and provided Brown a double
jeopardy defense against future prosecutions. The statutes were not unconstitutionally vague. 4. Again, 18 U.S.C. 1519 is not unconstitutionally vague, and the Indictment
adequately alleged the elements of the offense including the statutorily prescribed mens rea. 5. The plain wording of 18 U.S.C. 1512(c)(2) (Count Two) and the definitions in
18 U.S.C. 1515 are appropriate to charge Browns conduct. 6. Due to the different elements and the proof needed to satisfy those elements, Count
One and Count Two are not multiplicitous. PROCEDURAL BACKGROUND 7. In or about September 2012, the United States Magistrate Judge Paul D. Stickney
issued a Criminal Complaint for the arrest of Barrett Brown. On the same evening, the Federal Bureau of Investigation arrested Brown pursuant to an arrest warrant issued on the complaint. On three different dates, a Federal grand jury returned true bills of Indictment charging Brown with criminal offenses. The first Indictment dealt with Browns threat to harm FBI Special Agent RS. The second Indictment dealt with the data Brown possessed from the intrusion or hack of the Strategic Forecasting Inc.s computer network. The third Indictment dealt with Brown and KM hiding two laptops during the execution of a Search Warrant in March 2012. 1
1 Brown notes that the third Indictment was returned almost one year after the conduct charged; however, as Brown well knows, the charges in the third Indictment could have been joined with the first or the second Indictments, but were delayed at KMs attorneys requests, so that KM could negotiate a Government's Opposition to Motion to Dismiss - Page 2
8.
Count One of the third Indictment charged Brown with violations of 18 U.S.C.
1519 and 2. Section 1519 provided that [w]hoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both. (Underlined for comparison) 9. Count One of the third Indictment tracked the statutory language and stated as
follows: On or about March 6, 2012, in the Dallas Division of the Northern District of Texas, the defendant Barrett Lancaster Brown, aided and abetted by KM, did knowingly conceal tangible objects, namely two laptop computers containing records, documents, and digital data, with the intent to impede, obstruct, and influence the investigation and proper administration of any matter within the jurisdiction of any department and agency of the United States, and in relation to and in contemplation of any such matter, in that Barrett Lancaster Brown and KM concealed two laptop computers in KMs residence in the Northern District of Texas prior to the execution of a search warrant at KMs residence, said search warrant having been issued by a United States Magistrate Judge in the Dallas Division of the Northern District of Texas, and the execution of the search warrant was in relation to an investigation conducted by the Dallas Division of the Federal Bureau of Investigation, an agency of the United States Department of Justice. (Underlined for comparison) 10. The essential elements of 18 U.S.C. 1519 are as follows: FIRST: that the defendant altered, destroyed, mutilated, concealed, covered up, falsified, or made a false entry in any record, document, or tangible object; that the defendant did so with intent to impede, obstruct, or influence the investigation or proper administration of any matter within the
SECOND:
pre-indictment plea of guilty.

jurisdiction of any department or agency of the United States, or any case filed under federal criminal laws, or in relation to or contemplation of any federal criminal case; and THIRD: 11. that the defendant did so knowingly
Count Two of the third Indictment charged Brown with violations of 18 U.S.C.
1512(c)(1) and 2. Section 1512(c)(1) provided that [w]hoever corruptly conceals a record, document, or other object, or attempts to do so, with the intent to impair the objects integrity or availability for use in an official proceeding, shall be imprisoned for not more than 20 years. (Underlined for comparison) 12. Count Two of the third Indictment tracked the statutory language and stated as
follows: On or about March 6, 2012, in the Dallas Division of the Northern District of Texas and elsewhere, the defendant Barrett Lancaster Brown aided and abetted by KM, did knowingly and corruptly conceal and attempt to conceal records, documents, and digital data on two laptop computers, with the intent to impair the integrity and availability of the records, documents, and digital data contained on the laptop computers for use in an official proceeding, that being (1) a proceeding before a federal Grand Jury in the Northern District of Texas, and (2) a proceeding before a United States Magistrate Judge in the Northern District of Texas specifically related to search warrants issued on March 5, 2012. (Underlined for comparison) 13. The essential elements of 18 U.S.C. 1512(c)(1) are as follows: FIRST: SECOND: The defendant concealed a record, document, or other object; The defendant did so with the intent to impair the integrity or availability of the record, document, or other object for use in a proceeding before a federal Grand Jury in the Northern District of Texas or before a United States Magistrate Judge in the Northern District of Texas; The defendant acted corruptly; and
THIRD:
FOURTH:
The proceeding before the Federal grand jury in the Northern District of Texas or before the United States Magistrate Judge in the Northern District of Texas was an official proceeding.
14.
In Count Two, the term corruptly meant acting with an improper purpose,
personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information. 18 U.S.C. 1515(b). 15. The Indictment unambiguously alleged an act and an accompanying mental state for
each count. The essential elements of Counts One and Two contain different scienter requirements and are therefore not multiplicitous. RESPONSE TO BROWNS FIRST POINT 16. In his first point, Brown contends that the allegations are insufficient because
(1) Brown and KM concealed the laptops within the scope of the search warrant and the concealment was unsuccessful because the FBI found the laptops, (2) the Indictment does not set out the facts demonstrating the mens rea, (3) the Indictment did not allege a duty that Brown violated, and (4) either the statutory terms are superfluous or the statutes unconstitutionally vague. 17. An Indictment adequately charges an offense if it (1) enumerates each prima facie
element of the charged offense, (2) notifies the defendant of the charges filed against him, and (3) provides the defendant with a double jeopardy defense against future prosecutions. United States v. McBirney, 2006 WL 2432675, at 8 (N.E. Tex. Aug. 21,
2006) (Fitzwater, J.), Blockburger v. United States, 284 U.S. 299 (1932). The test for validity is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards. United States v. Gordon 780 F.2d 1165, 1169 (5th Cir. 1986). Those minimal constitutional standards therefore do not compel a ritual of words. The validity of an indictment is governed by practical, not technical considerations. United States v. Ramos, 537 F.3d 439 (5th Cir.2008) citing United States v. Crow, 164 F.3d 229, 235 (5th Cir.1999). 18. Browns first two contentions essentially challenge the sufficiency of the
governments evidence at trial, not what is required to be alleged in the Indictment. Since the trial has not occurred, this argument is premature. Brown fails to appreciate the difference between a challenge to the sufficiency of the indictment and a challenge to the evidence produced at trial. United States v. Bieganowski, 313 F.3d 264, 286 (5th Cir. 2002), citing United States v. McGough, 510 F.2d 598, 603 (5th Cir.1975) (holding that an indictment need only allege materiality in substance, and warning against the failure to draw a clear distinction between an allegation of materiality and proof of materiality.). The Indictment adequately conforms to constitutional standards. 19. On the merits of his argument, Brown failed to cite any authority in support of his
contention that a person cannot conceal an item within the physical area covered by the scope of the search warrant. In response, the government would first point out that the concealed laptops were the focus of the FBIs search. The concealed laptops contained key evidence of Browns and others involvement in criminal conduct. The concealed
laptops contained extensive evidence of computer intrusion and multiple attempts to gain access to credit card and other personal information in order to gain some leverage against the individuals or to harm the individuals. The concealed laptops have verbatim logs of Browns involvement and communications with the perpetrators of several computer intrusions, sometimes while the intrusions occurred. The logs revealed communications with the perpetrators of the unauthorized accesses to HBGary, Stratfor, SpecialForces, and Combined Systems. Also the logs revealed communications involving the plans to access without authorization other systems including but not limited to Qorvis and Northup Grumman. The concealed laptops contained logs documenting Browns attempts to orchestrate attacks on Qorvis and the Government of Bahrain on behalf of individuals known as Commander X and Amber Lyon, and involvement with the defacement of Combined Systems with a person using the name o. Brown received and reposted data containing website vulnerabilities and solicited individuals with the tools and the skills to exploit those vulnerabilities. The concealed laptops contained key identifiers for some of the participants in the actual and planned attacks. By concealing the laptops, Brown attempted to hinder law enforcements identification of others and to protect himself from criminal prosecution. 20. The government would also point out that during chats on ProjectPM IRC, Brown
stated that he expected law enforcement to search his apartment, and therefore he had intentionally moved the laptops from his apartment to KMs residence to prevent them from being seized by the FBI pursuant to a search warrant.
21.
In her factual resume in cause number 3:13-CR-110-BF, KM admitted the
following facts: Between 6:30 a.m. and 1:55 p.m. on March 6, 2012, KM and Brown believed that it was likely the FBI SAs would return with a Search Warrant for the computers that Brown had not volunteered. On or about March 6, 2012: a. KM agreed with Barrett Brown to hide and conceal Browns two laptops computers from FBI SAs. b. KM placed two laptops belonging to Barrett Brown in the back of a lower corner cabinet in the kitchen in an attempt conceal and prevent them from being located and seized by the FBI. c. When the FBI SAs arrived at approximately 1:55 p.m., KM and Brown knew that the FBI SAs had obtained a Search Warrant, cause number 3:12-MJ-110-BH, from a United States Magistrate Judge seeking data storage devices, to include the laptop computers. d. KM and Brown knew that it was unlawful to have hidden the laptops. By hiding the laptops, KM acted knowingly and willfully. e. KM and Brown knew that hiding the laptops would obstruct and impede the agents search for and attempt to locate the laptops. f. By hiding the laptops, KM intended to impede, obstruct, or influence the FBI investigation and the Search Warrant issued by the United States Magistrate Judge. 22. Evidence at trial will show that Brown always intended to conceal his laptops from
law enforcement. One of the two concealed laptops contains an IRC chat between Barrett Brown and an individual known as Topiary. In that chat, Topiary told Brown that another person has a meeting with Feds tomorrow morning. I might call his cell just before we take out the main target and lulz at him. Brown replied, I know, do so, record it, actually dont, be careful man, do what needs to be done, but stay safe, guess Ill start hiding laptops
23.
The governments evidence shows that Brown knew he was going to be raided, and
took steps to hide the laptops in anticipation of a search: a. On February 2, 2011 Brown had a chat with an individual known as Gabzorr.
In that chat Brown stated, for one thing, I have warrants, and expired ID, I have passport though. Second thing I may be raided too, so someone else will have to handle it b. During an NBC nightly news video dated March 8, 2011, Brown stated,
This is an act of warfare that we are involved in Laws have been broken by us. Our people break laws I am going to get prosecuted at some point. c. In January 2012, in a news interview on Russia TV (RT), Brown commented
on attacks on the United States Government and other illegal activities, stating he did not care about the rules of America. d. On November 16, 2011, Brown had a skype conversation with an individual
known as thesecondbase, in which Brown stated, my momKaren Lancaster has the laptopstwo of them 24. Evidence at trial will show that on the morning of March 6, 2012, KM and Brown
were aware that FBI Special Agents had searched Browns apartment, and that an agent was posted outside of KMs residence, making it impossible for KM or Brown to hide or conceal the laptops outside of the confines of the residence. KM and Brown underestimated the thoroughness of the search, and believed that they had sufficiently concealed the laptops in the kitchen cabinet behind some pots and pans.
25.
After the FBI Special Agents advised Brown and KM that they had searched
Browns apartment, Brown had the following discussion with others on the IRC: [07:39] <&BarrettBrown> yo [07:39] <&BarrettBrown> just got raided [07:40] <~Morpeth> pm [07:40] <+m> oh shit [07:43] <&BarrettBrown> long story short, the laptops they thought would be at my place weren't there [07:43] <&BarrettBrown> as I wasn't home [07:43] <&BarrettBrown> three other agents came to see me at mom's, where I stayed last night [07:43] <&BarrettBrown> this morning at 6:30 [07:43] <+m> did they had a warrant? [07:44] <%FriedSquid> lowest ebb [07:44] <&BarrettBrown> for my apartment, yep [07:44] <&BarrettBrown> not for my mom's husband's house [07:44] <&BarrettBrown> put a call in to my lawyer [07:45] <+m> BarrettBrown: you didnt let them in did you? [07:45] <&BarrettBrown> my mom did, there was nothing to see [07:45] <&BarrettBrown> it's her house [07:46] <%FriedSquid> did she say 'there's nothing to see here' [07:46] <&BarrettBrown> then she gave them coffee and shit while I came down stairs [07:46] <%FriedSquid> move along [07:46] <&BarrettBrown> more like she chatted with them like she does with everyone [07:46] <%FriedSquid> civilised, your mothersounds ace [07:47] <&BarrettBrown> so they talked to me for a minute, their purpose being to see if I'd be willing to give them any other laptops [07:47] <&BarrettBrown> not sure if they knew that the apartment raid will have produced nothing more than an old IMac in my closet [07:49] <&BarrettBrown> also, lead agent who left his card was named [RS] 26. And in a private chat with an individual known as Morpeth, Brown stated the
following: [07:41] <BarrettBrown> FBI came to my apartment this morning, busted up the door, but I wasn't there and neither were any of the laptops
[07:41] <BarrettBrown> my laptop is with me [07:41] <BarrettBrown> others are hidden [07:41] <BarrettBrown> so they got nothing [07:42] <BarrettBrown> three others came to my mom's house [07:42] <BarrettBrown> knew where I was [07:42] <BarrettBrown> one of them is [RS] [07:42] <BarrettBrown> supervisory special agent, CYBER DIVISION [07:43] <Morpeth> sigh [07:43] <Morpeth> so you didn't talk to them [07:43] <BarrettBrown> not really 27. To conceal is not defined by statute. A standard definition of conceal is to hide;
withdraw or remove from observation; cover or keep from sight. http://dictionary.reference.com/browse/conceal. Because Browns and KMs concealment was not successful does not undermine the fact that Brown and KM committed the criminal act of concealing the laptops with the intent specified in each count. The scope of the search warrant has no bearing on where the item was concealed. A defendant can conceal evidence without a search warrant even existing. 28. In his third contention, Brown complained that the Indictment did not allege a
duty and cited United States v. McRae, 702 F.3d 806 (5th Cir. 2012). Neither statute requires a violation of a known duty. Section 1519 requires the defendant to act knowingly. Section 1512 requires the defendant to act corruptly. Each statute also requires that the conduct be done with an obstructive intent. The Indictment properly alleges the mens rea. No violation of a known duty was required to be alleged in the Indictment. Also Browns reliance on McRae is misplaced because that opinion does not suggest that section 1519 requires a violation of a known duty.
29.
Brown confuses knowingly and corruptly with willfully. Willfulness is the mens
rea standard that in certain situations requires proof of a violation of a known duty. United States v. Miller, 588 F.3d 897, 907 (5th Cir. 2009). 30. Also, Brown contends on page 7 of his motion that Brown and KM behaved
exactly as they were supposed to and did not fabricate facts in an effort to prevent the administration of justice. The government disagrees with these statements. Brown and KM showed a complete lack of respect for the justice system by their efforts to conceal the laptops and to obstruct the execution of a Search Warrant. Both Brown and KM lied to law enforcement when asked about the existence of the laptops. 31. In his fourth contention, Brown attacked the constitutionality of the statutes and
claimed that the Indictment rendered other terms superfluous. Brown does not cite any authority in support of his contentions. Brown attempts to conflate the charges in Counts One and Two (18 U.S.C. 1519 and 1512) with an uncharged statute, 18 U.S.C. 1503. Brown was not charged with a violation of 18 U.S.C. 1503, so the definition of endeavor is irrelevant. The charges brought against Brown in Counts 1 and 2 properly and adequately track the statutory language of 18 U.S.C. 1519 and 1512(c)(1). McRae, which is cited as support in Browns motion, held that section 1519 was not unconstitutionally vague. McRae, 702 F.3d at 836-837. Likewise, the Court in United States v. Singleton, 2006 WL 1984467 *6 (July 14, 2006) opined that 18 U.S.C. 1512(c)(2) provided a defendant adequate warning of the charges, and was not unconstitutionally vague.
RESPONSE TO BROWNS SECOND POINT 32. The second point raised in Browns Motion to Dismiss contends that the absence of
a corrupt mens rea in 18 U.S.C. 1519 (Count One) causes the statute to be unconstitutionally vague and overbroad. As mentioned above, McRae held that section 1519 was not unconstitutionally vague. McRae, 702 F.3d at 836-837. McRae held that section 1519 requires some form of obstructive intent as can be seen from the statutory language with the intent to impede, obstruct, or influence the investigation or proper administration of any matter. 33. McRae, 702 F.3d at 834.
Browns arguments on pages 9 and 10 of his motion are more applicable to Browns
defense at trial, that being, whether Browns concealment of the laptops was appropriate or an innocent act. Thus, these arguments go to the proof at trial, not the sufficiency of the allegations in the Indictment. RESPONSE TO BROWNS THIRD POINT 34. In the third point raised in Browns Motion to Dismiss, he contends that the facts are
inappropriate to support a charge of 18 U.S.C. 1512(c)(2). Brown contends that because he was not tampering with a witness in a white collar fraud investigation, this statute is inapplicable. Although this specific argument was not raised in United States v. Simpson, 741 F.3d 539, 552 (5th Cir. 2014), the Fifth Circuit affirmed Simpsons conviction for a violation of 18 U.S.C. 1512(c)(2), for Simpson personally deleting data on some hard drives that he voluntarily turned over to the FBI. individual who obstructed a grand jury investigation.
Simpson, like Brown, was an
35.
The objective of a court called upon to interpret a statute is to ascertain
congressional intent and give effect to legislative will. The clearest indication of congressional intent is the words of the statute itself. When the language of a statute is unambiguous we must follow its plain meaning. Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.1998) (internal citations and quotation marks omitted). The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. United States v. Guidry, 456 F.3d 493, 502 (5th Cir.2006) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). 36. The plain wording of 18 U.S.C. 1512(c)(2) does not limit the criminal conduct
only to white-collar fraudsters or defendants directing other defendants to destroy data. Section 1512(c)(2) clearly makes it a felony for a person to corruptly conceal . . . a record, document, or other object, or attempt . . . to do so, with the intent to impair the objects integrity or availability for use in an official proceeding. (Emphasis added). Replete throughout section 1512 is the effect of the obstructive conduct on an official proceeding. An official proceeding is defined in 18 U.S.C. 1515(a)(1)(A) as a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury. Browns concealment of the laptops affected not only a proceeding before a United States Magistrate Judge relating to the Search Warrant, but also to the Federal grand jury
investigating Brown. On its face, the facts concerning Browns conduct fit squarely within the language of the statute. 37. Additionally, the definition of corruptly is defined as acting with an improper
purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.18 U.S.C. 1515(b). Corruptly does not limit the chargeable conduct to tampering with a witness. Corruptly includes the actors own obstructive behavior. RESPONSE TO BROWNS FOURTH POINT 38. In the fourth point raised in Browns Motion to Dismiss, Brown contends that
Counts One and Two of the indictment are multiplicitous. Browns ad hominem remarks are inappropriate and unhelpful to his argument. The Indictment is concise and properly drafted. 39. Pursuant to U.S v. Stevens, 771 F.Supp.2d 556, 562-563, (D.Maryland March 23,
2011), an indictment containing separate allegations pursuant to 18 U.S.C. 1512 and 1519 are not multiplicitous. 2 18 U.S.C. 1512 requires proof of an essential factual element that 18 U.S.C. 1519 does not, specifically proof of a pending or foreseeable official proceeding. Section 1519 simply requires proof that the concealment occurred with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or
2 See United States v. Galvan, 949 F.2d 777, 780 (5th Cir. 1991) (allowing prosecution of defendant under both 1512 and 1513, without discussing double jeopardy); United States v. Maggitt, 784 F.2d 590, 599 (5th Cir. 1986) (holding that witness tampering and retaliation charges under 1512 and 1513 are not multiplicitous, given that each is proscribed by a separate statutory provision and the facts necessary to one are not necessary to the other). Government's Opposition to Motion to Dismiss - Page 15
any case filed under title 11, or in relation to or contemplation of any such matter or case ... 18 U.S.C. 1519 (emphasis added). Section 1519 does not require a showing that the concealment was done with the intent to impair an object's integrity or availability for use in an official proceeding. 18 U.S.C. 1512(c)(1). 40. Additionally, 18 U.S.C. 1519 has a different jurisdictional element than 1512.
Section 1519 requires an allegation and proof that the matter obstructed was within the jurisdiction of any department or agency of the United States. United States v. McRae, 702 F.3d 806, 835 (5th Cir. 2012). Section 1512(c)(1) requires an allegation and proof that the obstruction was related to an official proceeding as defined in 18 U.S.C. 1515(a)(1)(A).

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Case 3:12-cr-00317-L Document 112 Filed 04/23/14

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It is so ordered this 23rd day of April, 2014.

_________________________________ Sam A. Lindsay United States District Judge

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surplusage or order the government to file a Bill of Particulars.

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transmitting threats via the Internet to injure another person.

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