The PDF transcript of journalist Barrett Brown's December 16, 2014 sentencing hearing (see my article Barrett Brown vs. the Dept of Justice -- Blurring the Lines of Journalism), provided by the court reporter, redacts the content of two sealed bench conferences. However, the redacted text was liberated through use of the PDF program Okular. I clicked "Selection", highlighted the redacted text, picked "Copy to clipboard", and pasted it into a text editor.
******SEALED BENCH CONFERENCE******
(THE FOLLOWING PROCEEDINGS WERE HAD AT THE BENCH, WITH ALL COUNSEL PRESENT.)
THE COURT: All right, I let Counsel bring their iPads and telephones and computers in here as a courtesy. I do not want to see anything and I repeat anything in this courtroom in the media later on. Does everybody understand me?
MS. CADEDDU: I'm sorry?
THE COURT: Well, I said Counsel is allowed to bring telephones, iPads, and other equipment as a courtesy, so they can properly represent their client, do research or whatever. What I am saying is as a result of the Court allowing that, I do not want to see anything that happens in this courtroom out there in any type of media. Does anybody have any questions?
MS. CADEDDU: Is the Court referring to recordings?
THE COURT: Recordings, photographs?
MS. CADEDDU: Of course.
THE COURT: I just want you to know, which dovetails into another issue. There was a request by the defense to release or unseal the sentencing memorandum. The same day the sentencing memorandum was filed, there was information tweeted about its filing. There is nobody outside who could know that that sentencing memorandum was filed unless somebody leaked it to them.
MS. CADEDDU: Well, Your Honor --
THE COURT: Here is what I am going to say. The reason being is when the public goes to the -- to the Court's filing system, it doesn't show anything, so for the media to express any type of opinion of that release, somebody had to tell them.
MS. CADEDDU: I will address this because I filed the motion and will respond that the sentencing and pleadings they know are filed. In terms of the sentencing memorandum, that was improper, but the problem is that I was under instructions from my client to give the sentencing memo to his mother and the gentleman that runs the fund, so I provided to them advising them that they were under seal which is what I normally do with family members.
THE COURT: I have no problem with that, but you need to tell your clients and effected persons not to get cute to get around instructions with the Court. Now, as far as I am concerned, it is probably really a moot issue at this point.
First of all, I would say that the sentencing memorandum, that is, the motion to unseal I really think it is untimely. The sentencing memorandum filed November 14, 2014. I don't know why the motion to unseal was not filed within a few days afterwards instead of just this past Thursday, but I don't think it was timely filed.
I think it is pretty much moot now anyway.
MS. CADEDDU: Again, Your Honor, I will address that because that was me.
THE COURT: Okay.
MS. CADEDDU: That is that there have been -- I actually never had requests to access to sentencing pleadings. This case has a lot of media interest, and so that flurry sort of began this week, and, you know, I told people all sentencing pleadings are under seal and was asked if there was any way to unseal, and I did the research, and sentencing memos were not supposed to be sealed. They are sealed by rule, but they are accessible, so that's why I filed it.
THE COURT: All right, now, on this case I see really several major objections, maybe two major objections, the loss amount issue and the number of victims. That is what appears to me to.
MS. CADEDDU: And grouping.
THE COURT: The grouping; that is correct.
MS. CADEDDU: Yes.
THE COURT: Three major areas. As to the loss amount, in light of the plea agreement, is there really an issue on that? I thought the agreement on the loss amount was between $400,000 up to one million.
MS. CADEDDU: It is, but probation calculates it at $3.4 million dollars.
THE COURT: Let me say this. This is my position on that. While there may be some evidence to support that in light of the agreement between the parties, I think that should prevail.
MS. CADEDDU: Understood, Your Honor.
THE COURT: So we are all on the same page.
MS. CADEDDU: We are.
THE COURT: I will make sure that statement is on the record. I understand she has $3,670,000 and some change, but in light of the agreement contained in paragraph -- I believe it is 5 of the plea agreement -- I think that is to control it, if that is the agreement the parties reached.
MS. HEATH: Yes, Your Honor I believe it is 11C1.1(b), so it is a recommendation not binding upon the Court, but it is recommendation and agreement between the parties as to what loss they thought was attributable.
THE COURT: Also, I thought I read something from the government that they would not oppose that they would honor that agreement.
MS. HEATH: Yes, Your Honor.
THE COURT: I guess the real question is, is there really any need for us to go into that if that is an agreement of the parties?
MS. CADEDDU: I don't believe so, Your Honor.
THE COURT: Mr. Ghappour?
MR. GHAPPOUR: Well, Your Honor, I would just note that the agreement actually binds the government from not seeking more than the $4 million dollars of loss.
MS. CADEDDU: It doesn't necessarily bind the defense. If Your Honor believes there is no way that we will argue and be successful getting the loss figure lower than $400,000, then Your Honor is correct and there is no need in getting into it.
THE COURT: I thought the agreement was that the government agreed that that would be the appropriate amount, that that provision would apply. In other words, based upon my reading of the paragraph, that is, paragraph 5 of the plea agreement and applicable section of the guidelines, there would be a 14-level increase based upon the $400,000 to one-million-dollar range as opposed to the 18-level increase recommended by the probation officer.
MR. GHAPPOUR: You're right.
MS. CADEDDU: That is correct, and that would forestall a lot of argument if that were the inclination of the Court.
THE COURT: I just want to know what we are up against and if that is the agreement of the parties then --
MS. CADEDDU: I will be doing the argument on the guidelines, Your Honor, so I can just tell you what I see as remaining issues.
THE COURT: Sure.
MS. CADEDDU: So we have the loss amount that was the agreement of the parties, and so we can leave that alone and I think that will shorten things significantly.
We do still have the remaining question of the number of victims. That objection was partially granted, and that objection, of course, is going to be -- there is also an issue of whether the -- whether those victims, in fact, were -- whether the case involved -- never mind, let me address that at the end.
We have the loss of figure and number of victims which was partially granted, and we also have the grouping which is a significant issue for us in light of that enhancement for an official victim and those are the issues we have left.
THE COURT: All right, Ms. Heath, will there be any testimony?
MS. HEATH: Your Honor, our presentation is entirely dependent on what argument is presented by defense to support their remaining objections. Yes, there will be testimony in the event that they bring up certain issues. I expect just one witness, Agent Robert Smith. If the government is in a position to need to respond to the threats to any significant detail, then I would have a second agent, Agent Lynn because he was the case agent on that, but that will be very, very short.
MS. CADEDDU: I guess there is certainly an issue about whether the threat should be grouped, so I am not sure I am understanding the government correctly in terms of a need for testimony. Would that be on the grouping issue?
MS. HEATH: Probably on the grouping, it depends on how the defense is presenting its objections. It is my understanding the defense usually goes first to present objections and the government's response to that.
THE COURT: That's correct. I am sorry. Go ahead, Ms. Cadeddu.
MS. CADEDDU: If you allow us to confer for a minute just to see if we can -- if we are going need.
THE COURT: How much time would you need? Ten minutes?
MS. CADEDDU: Ten minutes would be fine. We would need to talk to our client too.
THE COURT: You want him brought out?
MS. CADEDDU: If you wouldn't mind, Your Honor.
******SEALED BENCH CONFERENCE NO. 2******
(THE FOLLOWING PROCEEDINGS WERE HAD AT THE BENCH, WITH ALL COUNSEL PRESENT.)
MS. CADEDDU: So, Your Honor, we were just trying to determine from the defense what witnesses we want to call and what testimony we might need, so the question for us is in terms of loss amount that is already dealt with, but we still have the objection as to the number of victims and also whether it is, in fact, two points assessed for the fact that it was trafficking access devices. It was related all to the linking and credit card charges that are part of the $3 million dollar loss that the Court has not assessed against Mr. Brown under the agreement, so I guess our question is or our point is if the Court is inclined or if the Court believes that those enhancements are not appropriate because the credit card information is not appropriately included, then -- then really the only thing left is purely a legal argument as to grouping, in which case we wouldn't have any witness. If on the other hand, the Court wants to hear testimony about Mr. Brown's involvement in the credit card situation and how that all went, then we do have a witness and I am sure the government will have a witness.
THE COURT: So you are talking about relevant conduct then?
MS. CADEDDU: Yes, sir. Whether that is properly considered relevant conduct. If not, we don't have a witness. If it is, then yes, and that would be the unauthorized access device enhancement and the number of victims.
THE COURT: All right, that is something that will have to be decided probably during the course of the hearing. I guess we probably will need a witness as to the relevant conduct. All right, anything else?
MS. CADEDDU: I don't think so.
MR. SWIFT: Your Honor, how would you like to proceed? We said there are really two questions here from the defense's perspective on the guidelines. The first one is the grouping question which is from our viewpoint a purely legal question. We don't dispute the facts with regard to Agent Smith and what we pled to and the government, and you already have a complete transcript of the tape. We are not disputing here. It is a legal question whether we believe that would be part of a course of continuing conduct which involved the earlier Stratfor, and then we have the Stratfor part. Do you want to hear legal argument first on that or would you like to hear factual on the Stratfor Act or how do you want to proceed? Do you want the government to put on their evidence or us to go first? I am not sure.
THE COURT: Were you going to say something, Ms. Heath?
MS. HEATH: Yes, Your Honor, I believe their grouping argument goes to attacking the relevant conduct issue which then goes to the victims to some degree. Although they did not specifically object in their objections to the trafficking enhancement, they are now saying that is part of what is included in their objections because it is relevant conduct. I think before we get to legal argument though, the Court would need to hear facts, and the government has a witness for that, but since it is the defense's objection as to why relevant conduct would not be included, then, the government would suggest that they go first to present that and then the government can present its evidence regarding relevant conduct which goes to the grouping.
MS. CADEDDU: It is the government's burden to prove relevant conduct. That is the government's burden, so I would not -- I would contest. That it is not our burden.
THE COURT: You said you would contest or would not?
MS. CADEDDU: I do contest it is -- that relevant conduct is our burden. I think the government has the burden of proof here.
THE COURT: Isn't that correct that the government has to show that it has all been relevant conduct?
MS. HEATH: Yes, Your Honor.
THE COURT: When the person has the burden of proof whether it is in this case or any other case, I require that person to go first. For example, if, for example, like in a motion to suppress, if there is no search warrant, then the government has the burden of proof to show that the -- that the search was justified. If there is an issue of relevant conduct, I think the government has the burden. I think it is only right that the government go first. What I also will probably ask is when the government puts on its evidence, I also want to hear evidence that the Defendant has, so we will take that issue and move upon the next one.
MS. HEATH: That's fine, Your Honor. We can go first or we can go last, whatever sets out the relevant conduct, so --
THE COURT: Are you ready to proceed then?
MS. HEATH: Yes.
MS. CADEDDU: We are, Your Honor.
THE COURT: All right.