Mimesis Law
28 June 2017

Are Florida Prosecutors Spying on Defense Attorneys?

July 7, 2016 (Mimesis Law) — Going to trial must be so frightening for the government. How do you know what issues defense counsel will raise? What are the problems with your case? Have you missed any potential credibility problems with your witnesses? Wouldn’t it be great if there was a way to get a preview of the potential defense months, even years, in advance of trial?

Defense attorneys for Salo Schapiro allege that the Miami U.S. Attorney’s office may have found a way to do this by requiring defense attorneys to print and scan all of their discovery at a particular printer, Imaging Universe. That print shop’s owner, Ignacio E. Montero, would then covertly make CD copies of everything that defense attorneys found noteworthy enough to scan or print, and hand those copies directly to agents of the FBI.

The defense attorneys in this case, Howard Srebnick and Rossana Arteaga-Gomez, found out about the practice because a  prosecutor, James V. Hayes, tipped them off that he had discovered that an agent had been collecting the CDs. In its brief, available at Techdirt, the government claimed that the agent only failed to alert prosecutors because the CDs seemed totally unremarkable.

And this seems like a pretty credible claim. Maybe Mr. Montero was just copying some CDs in this one case, an agent happened to get some of the CDs, and thinking nothing of it, glanced at them a little bit to help prep her for the case. The government asserts in its brief that no prosecutor or agent had ever requested the duplicates be made. That would be a strong, credible claim.

Except, according to Mr. Montero, he’s been doing it for ten years. If someone brings you a copy of the New York Times one morning, it’s a surprise. If they keep doing it for ten years, whether you’re paying for it or not, you’re a subscriber. Is it really plausible that not one of these likely Ivy League lawyers noticed they kept getting unsolicited CDs from the copy shop that defense attorneys regularly use?

Potentially even more damning, the defendant’s attorneys claim that Montero told them he began copying the CDs at the request of an “agent,” although the federal government’s brief argues that defense counsel may have misunderstood him or he may have been confused. Even more likely, if Montero was acting alone, he may have wanted to cover himself by saying he only did it because someone in the government asked him.

Now, even if these allegations are true, and the government did participate, it might not seem like a huge deal. After all, the FBI wasn’t looking at privileged conversations between defense attorneys and their client, or hacking into the lawyers’ servers to see drafts of documents they were prepping for the case. In the grand scheme of things, just getting copies of copies might seem relatively benign.

Until you realize that this case had over 220 boxes of physical evidence kept in a secure warehouse in Miramar, Florida. The volume of documents was so huge that the government couldn’t scan or even stamp the documents in a coherent way. It would take an absolutely massive amount of manpower to dig through all of it for relevant information.

Unless, of course, you could just use the defense attorneys as bloodhounds. By allowing defense counsel into the warehouse “as a courtesy,” and then seeing what they made a record of, prosecutors could get an idea for what their areas of concern might be. For instance, let’s imagine that their client felt that some of his more suspect transactions happened in August of 2013. The attorneys, diligently enough, begin poring through that area of discovery to see what the federal government has uncovered. Suddenly, what looks like simple rudeness turns into a pretty clever plot to get the defendant to incriminate himself through his lawyers.

It can be said with some confidence that absolutely no one is likely to get in trouble over this. Not Mr. Montero, who describes his actions only as providing “courtesy copies” to the federal government. Not the FBI agent who had been receiving copies. And not the three US Attorneys who may have presided over this practice without comment or incident. Far more obvious, deliberate, and prejudicial conduct has gone without punishment in the past. There’s certainly no smoking gun so far.

Still, the district judge is currently investigating:

What remedies, if any, are available to the court were the court to find that the described conduct in defendant Schapiro’s motion is a systemic, consistent and/or pervasive practice of or on behalf of the United States Attorney’s Office?

If this truly was an innocent mistake that is being diligently investigated by federal officials, then the case should likely trundle on to its natural ending. It’s hard to say at this point whether defense counsel simply jumped the gun on the word of a confused copy shop owner or whether there really is a long-standing conspiracy to spy on defense attorneys.

But if the federal government really did mandate the use of a particular copy shop, knowing that it would give them insight into a potential defense, dismissal of the case alone will not be a sufficient remedy. Only time will tell what remedy is appropriate when the government uses the printing press as a weapon.

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