Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 1 of 21 PageID 3091 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA v. JOHN WILEY PRICE, KATHY LOUISE NEALY, and DAPHENY ELAINE FAIN § § § § § § § Cause No. 3:14-CR-293-M ECF DEFENDANTS’ SECOND MOTION FOR CONTINUANCE Shirley Baccus-Lobel Shirley Baccus-Lobel Law Office of Shirley Baccus-Lobel, PC 8350 Meadow Road, Suite 186 Dallas, Texas 75231 214.220.8460 214.987.3169 (f) sbl@lobellaw.com Attorney for John Price Thomas W. Mills, Jr. Mills & Williams 5910 N. Central Expressway, Suite 900 Dallas, Texas 75206-5141 214.265.9265 214.363.3167 (f) tmills@millsandwilliams.com Attorney for Dapheny Fain Second Motion for Continuance - Page 1 Cheryl Brown Wattley Cheryl Brown Wattley Law Office of Cheryl B. Wattley 3737 Atlanta Street Dallas, Texas 75215 214.882.0855 cheryl.brown.wattley@gmail.com Attorney for Kathy Nealy Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Chris Monroe Knox Law Office of Chris Knox 900 Jackson St., Suite 650 Dallas, Texas 75202 214.741.7474 214.747.7711 (f) chrisknox@knoxcriminaldefense.com Attorney for John Price Marlo P. Cadeddu Law Office of Marlo P. Cadeddu 3232 McKinney Ave., Suite 700 Dallas, Texas 75204 214.220.9000 214.744.3015 (f) mc@marlocadeddu.com Attorney for Dapheny Fain Second Motion for Continuance - Page 2 Page 2 of 21 PageID 3092 Russell Wilson, II Law Office of Russell Wilson, II 1910 Pacific Ave., Suite 15100 Dallas, Texas 75201 469.573.0211 Attyrwilson@msn.com Attorney for Kathy Nealy Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 3 of 21 PageID 3093 TABLE OF CONTENTS Page I. INTRODUCTION 5 II. PRODUCTION OF THE DISCOVERY MATERIALS 9 III. ONGOING ACTIVITY TO ADDRESS THE DISCOVERY PRODUCTIONS 17 IV. A SECOND CONTINUANCE OF THE TRIAL DATE IS NECESSARY IN ORDER TO PROVIDE AN ADEQUATE OPPORTUNITY FOR THE DEFENSE TO REVIEW THE DISCOVERY, INVESTIGATE THE CASE, AND PREPARE FOR TRIAL, AND IN ORDER TO PROVIDE TO THESE DEFENDANTS THE EFFECTIVE ASSISTANCE OF COUNSEL AND THE DUE PROCESS OF LAW TO WHICH THEY ARE ENTITLED 18 V. CONCLUSION 20 VI. CERTIFICATE OF CONFERENCE 21 VII. CERTIFICATE OF SERVICE 21 ATTACHMENTS 1. Approval of request for continuance, Defendant Price 2. Approval of request for continuance, Defendant Nealy 3. Approval of request for continuance, Defendant Fain 4. Declaration by Daniel J. James and Chart of Discovery Productions 5. Government’s original discovery chart Second Motion for Continuance - Page 3 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 4 of 21 PageID 3094 AUTHORITIES Page Amendment V, U.S. Constitution 7, 20 Amendment VI, U.S. Constitution 7, 19 Wardius v. Oregon, 412 U.S. 470 (1973) 18 U. S. C. 3161(h)(7)(B)(i)(ii) and (iv) Second Motion for Continuance - Page 4 19, 20 19 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 5 of 21 PageID 3095 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA v. JOHN WILEY PRICE, KATHY LOUISE NEALY, and DAPHENY ELAINE FAIN § § § § § § § Cause No. 3:14-CR-293-M ECF DEFENDANTS’ SECOND MOTION FOR CONTINUANCE (With Supporting Memorandum) COME NOW Defendants PRICE, NEALY AND FAIN and move this Court to grant a second continuance of the trial of this case, and to enlarge the corresponding pretrial deadlines, in order to provide an adequate opportunity for review of those materials obtained by the government which have been (and are continuing to be) produced to the defense and also to fully investigate and prepare for trial; and in support of this motion the Defendants submit the following: I. INTRODUCTION A. On July 23, 2014, an indictment was filed which claims that Defendants Price and Nealy conspired [18 U.S.C. 371] to violate 18 U.S.C. 666 (count 1, indictment at pages 11-83) and committed mail fraud [18 U.S.C. 1341 and 1346] (counts 2-7, indictment at pages 84-86). In addition, the indictment claims there existed a Second Motion for Continuance - Page 5 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 6 of 21 PageID 3096 conspiracy to obstruct the IRS, in violation of 18 U.S.C. 371 (count 8, indictment at pages 87-100), an allegation brought against Defendants Price, Nealy, and Fain; further, the government lodges against Defendant Price claims that false tax returns were submitted for tax years 2007, 2008 and 2009, in violation of 26 U.S.C. 7206(1) (counts 9-11, indictment at page 101), and the government lodges against Defendant Nealy a claim of attempt (October 2003 through June 2011) to defeat payment of tax for calendar tax years 2002-2009, in violation of 26 U.S.C. 7201 (count 12, indictment at pages 102-103). Finally, the government asserts that Defendant Fain made a purportedly false statement to the FBI on June 27, 2011, in violation of 18 U.S.C. 1001 (count 13, indictment at page 104). Pursuant to 18 U.S.C. 981(a)(1)(C) and 28 U.S.C. 2461 (c), the indictment seeks forfeiture of proceeds attributable to any violations, in the event there are any convictions on Counts 1-7 (indictment at pages 105-106; defendants Price and Nealy).1 B. The 107-page indictment covers a 10 ½ year time period and concludes more than 4 years ago (“in or about January 2001 and continuing through on or about June 27, 2011"). Search warrants were executed with respect to these Defendants in June 2011, and the investigation which preceded these warrants commenced years earlier. 1 A fourth defendant, Christian Campbell, is also named in the indictment’s forfeiture notice. He was charged only in count 1. He entered a plea of guilty to that count (Docs. 120, 122, 124, 125, 126). Second Motion for Continuance - Page 6 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 C. Page 7 of 21 PageID 3097 The government and all defendants filed a joint motion for continuance of the trial date and also asked this Court to declare the case complex (Doc. 34). Based upon the multiple factual allegations of the indictment and its complexity, as well as its 10 1/2-year time span, and the voluminous discovery, this Court found the case was complex, granted the joint motion, and continued trial of the case to January 19, 2016 (Doc. 36). D. In an ordinary case, the discovery is provided and reviewed as an initial phase of the proceeding. This is followed by the next phase, the defendant’s informed and independent investigation, which relies in no small measure upon the information gleaned from review of the discovery. After this, a determination is made with respect to pretrial motions and, finally, when cases proceed to trial, the trial preparation commences. E. This second motion for continuance is not brought for purpose of delay but, rather, in order to provide these Defendants with the effective assistance of counsel secured by the 6th Amendment. Effective assistance of counsel cannot be achieved unless and until these Defendants receive (1) full access to the discovery and (2) an adequate opportunity to review the materials provided. Without this, the adversarial balance required by the due process of law guaranteed by the 5th Amendment cannot be achieved. This second motion for continuance is necessary for two reasons: (1) Second Motion for Continuance - Page 7 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 8 of 21 PageID 3098 the Defendants do not yet have actual access to substantial portions of the discovery, including material produced early in the discovery phase of this proceeding; and (2) much of the discovery was produced only recently. F. On an even playing field, the time actually required to review the staggering volume of discovery in this case would equate to a time period equivalent to that which the government has enjoyed for its review of the material. At the very least, the government man hours (prosecutors, agents and other officials, financial analysts, para-legals, legal assistants, etc.) devoted to this investigation and case would provide the Court with a revealing measure of what this case actually requires of the defense. G. For a long time prior to execution of the searches and seizures in this case (in June 2011), and for over four (4) years thereafter, the prosecution has used the considerable resources at its disposal to gather, process, and review an extraordinary volume of material. This includes nearly 1,000 grand jury subpoenas.2 The ability to navigate that material is crucial to the ability to provide effective assistance of counsel to the Defendants, and no meaningful defense investigation can occur without it. Thus, this Court’s directive that “the Government must make every reasonable effort to produce the documents for the Defendants’ use in a way that is 2 See Attachment 5. We are aware of no other case in this district or elsewhere which has involved this volume of grand jury subpoenas. Second Motion for Continuance - Page 8 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 9 of 21 PageID 3099 relatively easy, efficient, and convenient for the Defendants to access, process, and search” (Doc. 32). H. It is important to observe that the collected data in this case is often mis- described as “evidence”. It is not evidence, and the percentage of this material which actually constitutes evidence is likely to be minuscule. That said, the whole body of material must of course be searched and much of it reviewed, to the extent possible given the constraints of time and manpower. II. PRODUCTION OF THE DISCOVERY MATERIALS A. The prosecution’s discovery productions were completed only recently, in September 2015.3 General descriptions of the data productions are set forth below (in date sequence). See Attachment 4 to this motion.4 This review of the productions also includes brief mention of other circumstances pertinent to the pace of the discovery (more fully discussed in Part III). September 9, 2014: Production 1 3 There likely will be additional productions (as often occurs, in any case). By way of example only, it appears there as yet have been no productions of grand jury transcripts and witness statements. That material is expected to be fairly voluminous, given the duration of the investigation. Moreover, some witnesses have been brought before the grand jury several times. Compare United States v. Menendez, No. 2:15-cr-00155 (D.N.J.), the prosecution of a sitting U.S. Senator, where grand jury transcripts and witness statements were produced to the defense early in the proceeding, and where the total volume of material produced in discovery is but a tiny fraction of what is involved here (Doc. 113-1). 4 A listing of the productions, together with volume estimates and guesstimates, are submitted with this motion, with the forensic expert’s declaration. Attachment 4. Second Motion for Continuance - Page 9 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 10 of 21 PageID 3100 » 276 discs of Commissioner’s Court [CC] recordings for 2002-2011 for which no transcripts have been provided. The recordings are not identified by any pertinent information other than the dates of the sessions. » 10 discs of unindexed material seized by search warrant from Defendants Price, Nealy and Fain (estimated volume: 7 gigabytes [GBs]). November 25, 2014: Production 35 » 493 gigabytes in Concordance format. This is represented to include documents intended for the prosecution’s case-in-chief and will become accessible to the defense upon completion of the Federal Public Defender’s [FPD’s] uploading of the discovery and its availability on the Summation database, as discussed infra. Like all materials produced in Concordance load files, these materials have not been available to these Defendants. Concordance load files were produced by the prosecution to Defendant Campbell’s attorneys, with the concurrence of other defense counsel appointed pursuant to the Criminal Justice Act [CJA], to become accessible once the discovery productions were processed and uploaded to a hosting server.6 » 7 hard drives of pole camera videos, for which no surveillance markers are 5 Production 2 consists of materials produced by the government as pertinent to ancillary legal issues. 6 Because certain of the Concordance productions were not included in the data provided to the FPD for uploading to its server (Productions 4, 5.1 and 5.2), that material is currently being re-copied. Second Motion for Continuance - Page 10 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 11 of 21 PageID 3101 provided and for which the only pertinent information disclosed is the locale under surveillance and the period of time the cameras operated (these were in operation at several locales for substantial periods of time; estimated volume: 3.533 terabytes [TBs] 7). December 2014, Productions 3, 4 and 6 [no additional material]: » The 276 recordings in Production 1 are again provided, on 20 DVDs, and are re-designated as part of Production 3 [estimated volume: 94 gigabytes8]. » The 493 gigabytes in Concordance format in Production 3 are re-designated as Production 4. » The 7 hard drives with pole camera videos in Production 3 are re-designated Production 6. February 6, 2015: Productions 3.a and 5.1 » 10 discs of additional CC recordings. Production 3.a [estimated volume: 7 gigabytes] » 387 gigabytes of subpoenaed materials in Concordance format, with index. Production 5.1 7 A gigabyte will (very) roughly approximate 30 minutes of video which would translate to approximately 106,000 minutes or 1,766 hours of viewing time. Although the defense has vetted the problem of how to review this material, we have not yet come up with a solution. 8 Only very rough estimates (better described perhaps as guesstimates) can be provided with respect to audio and video files, and these estimates may be significantly understated. Second Motion for Continuance - Page 11 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 12 of 21 PageID 3102 March 26, 2015: Production 8 » 2100 gigabytes of ESI (electronically stored information), digital data in various formats, extracted from multiple electronic devices, processed and retained at North Texas Regional Computer Forensic Lab [RCFL], produced with list of the devices (over 100). The total body of this digital data is 8 TBs, of which 4 TBs was designated under the heading “Relativity”. See Attachment 5, Government’s original discovery chart. Eventually that 4 TB volume changed to 2.1 TBs. That 2.1 terabytes has been imaged and produced to the FPD. Production 8 remains an outstanding discovery issue.9 It is the position of the defense that this data must be inspected at RCFL in order to ascertain the exact nature of the data which must be processed and analyzed by the defense. ___________________________________________ April 2015: As discussed infra (Part III), once sufficient data was compiled (that is, best guesstimates of volume, format, etc.), bids were solicited for the considerable forensic processing and hosting needs of this case. Due to the costs revealed by the 9 Several discovery issues are pending, including the need to inspect the ESI so that the defense can independently determine precisely what is included in the material from which Production 8 is derived. In light of the government’s position that its productions are for the most part (but not entirely) completed (Doc. 172), it is anticipated that the parties will confer in order to determine those issues which can be resolved satisfactorily without recourse to the Court’s time. Another critical issue will be whether the sources of data can be determined from the productions. Second Motion for Continuance - Page 12 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 13 of 21 PageID 3103 bids ultimately received, this Court and Magistrate Judge Toliver sought an alternative solution. The Federal Public Defender [FPD] agreed to serve as the coordinating discovery attorney for the case and was appointed in May. The FPD’s cooperation and assistance resulted in savings of close to $1,000,000. In July 2015, the FPD received the necessary funding for the equipment required for the hosting server. This innovation is a pilot project and is expected to be used in future cases involving voluminous document production, in order to minimize the substantial costs to the public which would otherwise accrue as a consequence of essential forensic needs. ____________________________________________ May 15, 2015: Production 5.2 » 473.2 gigabytes of subpoenaed materials in Concordance format » 70.8 gigabytes of Commissioner’s Court videos + miscellaneous audios June 25, 2015: Productions 710, 8 Updated, and 9 » 9.31 gigabytes of subpoenaed and other material in Concordance format. Production 7. » Production 8 Update providing requested formats for the digital data. » 14 bankers’ boxes of documents made available for inspection. Production 10 There exists a discrepancy between Production 7's volume (9.31 GBs) according to the prosecution’s letter and the file size received by the FPD (1.12 GBs). Second Motion for Continuance - Page 13 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 14 of 21 PageID 3104 9 [estimated volume, 16.8 GBs]. July 1, 2015: Production 12 » Search warrant photographs, produced on compact discs (estimated volume: 1.9 GBs). ____________________________________________ July 17, 2015, budget notice received. ____________________________________________ July 31, 2015: Productions 5.3, 14, and 15 » 500 gigabytes of emails and documents produced by Dallas County and subpoenaed materials, in Concordance. Production 5.3 » Bulky materials and valuables, with index. Production 14 (volume unknown). » Surveillance photographs. Production 15 (volume not calculated). August 11, 2015: Productions 10, 11, 16, 18, 19, 20 » Privilege logs. Production10 (estimated volume 1.09 GBs) » 29 gigabytes of “1-D recordings and data”. Production 11. » Additional data. Production 16 (estimated volume: .46 GBs) » IRS tax returns and audits. Production 18 (estimated volume: .39 GBs). » Access to 9 banker’s boxes of “filtered documents” provided by Dallas County. Production 19 (estimated volume: 10.8 GBs). The defense request for detail Second Motion for Continuance - Page 14 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 15 of 21 PageID 3105 regarding this “filtering” remains outstanding. » Criminal records. Production 20. August 27, 2015: Production 17 » 4 discs with some of the materials from the civil forfeiture case (estimated volume: 2.8 GBs). September 16, 2015: Productions 4.a, 5.3 additions, 7.a, 14 update, 19 update » Additional materials obtained by search warrants and electronic data obtained by court order, in Concordance format. Production 4.a (estimated volume: 4.07 GBs) » Additional subpoenaed items. Production 5.3 (estimated volume 500 GBs). » Additional “Main 1A” material, in Concordance. Production 7.a (estimated volume: .11 GBs) » Revised index to Production 14 received. » 9 banker’s boxes of “filtered documents” scanned and provided in Concordance. Production 19 update. September 22, 23, 2015: Production 13 » Search warrant materials. B. In early October 2015, soon after these last productions, several productions (4.a, 5.3, 7, 7a, 8, 10, 11, 16, 18, 19) began to be uploaded to the server hosted by the Second Motion for Continuance - Page 15 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 16 of 21 PageID 3106 FPD. This included some but not all of the productions in Concordance load files.11 Other productions (3, 3.a, 6, 9, 12, 13, 14, 15, 17, and 20) are not hosted on the FPD’s server but are independently available to the Defendants. These are principally audio and video files and photographs, as well as bulky material. The total volume of all productions has not been finally determined but the volume to date is estimated to be approximately 7.74 terabytes. This volume estimate does not include Productions 13, 14, 15 and 20. As stated, a question remains regarding Production 8.12 C. In order for the Summation software to function optimally on the FPD server, the next phase (ongoing at this time) involves the removal of material per processing parameters for the electronically stored information [ESI] provided in forensic image format. These parameters have been determined by the defense, after which the forensic material will be loaded onto the server by the FPD’s staff. This process will also identify the software programs which CJA counsel must possess (or acquire) in order to receive and review the data. 11 Production 1 (10 discs of data obtained by search warrant) will be loaded to the FPD server but also has been independently available to the Defendants. 12 The government recently provided a revision to the ESI material. It is now 2.1 TBs (Doc. 172 and 172-1), which is the volume produced to the FPD in Production 8. The government’s original discovery chart reflects 8 TBs of ESI material. Attachment 5 to this motion. The government advises that this chart denotes the volume of the productions received by the government. Second Motion for Continuance - Page 16 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 17 of 21 PageID 3107 III. ONGOING ACTIVITY TO ADDRESS THE DISCOVERY PRODUCTIONS A. From early in this proceeding until April 2015, counsel investigated ways to meet the exceptionally demanding forensic processing and hosting needs of the case and ultimately compiled sufficient data to solicit and obtain bids for these functions. B. Due to the substantial costs involved, the Courts requested that the Federal Public Defender serve as the coordinating discovery attorney for the defendants and provide the forensic processing and hosting for the case. In mid-May, Magistrate Judge Toliver appointed the FPD to serve as the coordinating discovery attorney.13 This is a pilot project, an innovation envisioned for future cases as well. The FPD’s role is to provide the server, process the data, and host the discovery. This innovation has saved close to $1,000,000 in forensic processing and hosting costs. As the Court is aware, the FPD has no substantive involvement as a defense attorney for any of the Defendants, any more than a commercial vendor would. C. In May, the FPD submitted its request for funding to the Defender Services Office and on July 10, 2015 received funding approval for the equipment necessary to implementation of the pilot project.14 This large-scale project involved multiple 13 The appointment of the FPD did not delay this case, certainly not to any significant extent. Had the course of this proceeding resulted in acceptance of a bid from one of the commercial vendors, the procedures for acquiring and hosting the material would have been substantially the same. 14 On July 31, 2015, CJA counsel were notified regarding budgets. Second Motion for Continuance - Page 17 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 18 of 21 PageID 3108 equipment and software vendors. The equipment was ordered in July and most of the equipment was received in August. The FPD received the final component of the server mid-September, following an unexpected delay. D. Thereafter, the FPD’s staff met with vendor representatives to configure the server, after which representatives from the case management company began remotely installing and configuring their programs on the server. E. In early October, the FPD technical staff began processing the electronic discovery and loading it onto the server. The defense identification of parameters for the data culling for Summation was recently completed. This phase will also identify the various programs which CJA counsel must have in order to review the data. Following this, the FPD advises that additional training will be required and that he believes the system will be up and running and accessible to the defense in November, hopefully early November. IV. A SECOND CONTINUANCE OF THE TRIAL DATE IS NECESSARY IN ORDER TO PROVIDE AN ADEQUATE OPPORTUNITY FOR THE DEFENSE TO REVIEW THE DISCOVERY, INVESTIGATE THE CASE, AND PREPARE FOR TRIAL, AND IN ORDER TO PROVIDE TO THESE DEFENDANTS THE EFFECTIVE ASSISTANCE OF COUNSEL AND THE DUE PROCESS OF LAW TO WHICH THEY ARE ENTITLED A. The Defendants have proceeded in good faith to address the exceptional discovery and forensic demands of this case, as well as numerous other matters Second Motion for Continuance - Page 18 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 19 of 21 PageID 3109 pertaining to the law and facts of this case. Despite the unavailability of a substantial portion of the discovery materials in a completed searchable database, the Defendants have proceeded with diligence and have invested substantial time and effort in review of available discovery materials, independent investigation, and legal research of numerous issues raised by this case, which is not only factually complex but also legally complex. It will be impossible for the Defendants to review the voluminous discovery materials, or to complete an independent investigation, prior to the present trial date of January 19, 2016, even though the Defendants have exercised due diligence and continue to do so. In these circumstances, and given the complexity of the case and the extraordinary volume of discovery, much of which the Defendants have as yet had no opportunity to review, the failure to grant the requested continuance would be contrary to the best interests of justice and would in fact result in a miscarriage of justice, and would deny the Defendants and their counsel the reasonable time necessary for effective preparation. 18 U. S. C. 3161(h)(7)(B)Ii)(ii) and (iv). The requested continuance is essential to the ability to provide these Defendants with the effective assistance of counsel guaranteed by the Sixth Amendment. B. Ours is an adversarial system. “[I]t is hardly an end in itself; it is not yet a poker game . . ..” Wardius v. Oregon, 412 U.S. 470, 474 (1973), citing Williams v. Second Motion for Continuance - Page 19 Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 20 of 21 PageID 3110 Florida, 399 U.S. 78 (1970). To be fair, that system must afford a level playing field. While this may be more a goal than a reality of the criminal prosecution system, achieving that balance is fundamental to the Fifth Amendment’s guarantee of due process of law. Wardius, 412 U.S. at 474. Having investigated this Defendant for many years, including more than four years since the searches and seizures of June 2011, the due process precept of adversarial balance requires that these Defendants be afforded an adequate opportunity to review the massive volume of discovery in this case, conduct a thorough and independent investigation, and prepare for trial as informed advocates. V. CONCLUSION FOR THE REASONS STATED, this Court should grant a continuance which is commensurate with the volume of discovery which must be reviewed and which is on a level playing field with the prosecutions’ opportunity to review the same material. Respectfully submitted, Shirley Baccus-Lobel Shirley Baccus-Lobel Law Office of Shirley Baccus-Lobel A Professional Corporation 8350 Meadow Road, Suite 186 Dallas, Texas 75231 214.220.8460 214.987.3169 (f) sbl@lobellaw.com Second Motion for Continuance - Page 20 Cheryl Brown Wattley Cheryl Brown Wattley Law Office of Cheryl B. Wattley 3737 Atlanta Street Dallas, Texas 75215 214.882.0855 cheryl.brown.wattley@gmail.com Case 3:14-cr-00293-M Document 173 Filed 10/14/15 Page 21 of 21 PageID 3111 Thomas W. Mills, Jr. Mills & Williams 5910 N. Central Expressway, Suite 900 Dallas, Texas 75206-5141 214.265.9265 214.363.3167 (f) tmills@millsandwilliams.com Marlo P. Cadeddu Law Office of Marlo P. Cadeddu 3232 McKinney Ave., Suite 700 Dallas, Texas 75204 214.220.9000 214.744.3015 (f) mc@cadeddulaw.com Chris Monroe Knox Law Office of Chris Knox 900 Jackson St., Suite 650 Dallas, Texas 75202 214.741.7474 214.747.7711 (f) chrisknox@knoxcriminaldefense.com Russell Wilson, II Law Office of Russell Wilson, II 1910 Pacific Ave., Suite 15100 Dallas, Texas 75201 469.573.0211 Attyrwilson@msn.com CERTIFICATE OF CONFERENCE On October 12, 2015, I conferred with government counsel, Walt Junker, who advised that the government is not opposed to the continuance and defers to the Court as to the appropriate length of any continuance. Shirley Baccus-Lobel SHIRLEY BACCUS-LOBEL CERTIFICATE OF SERVICE I hereby certify that on October 14, 2015 I electronically submitted the foregoing document with the clerk of court for the U.S. District Court, Northern District of Texas, using the electronic case files system of the court. The electronic case files system sent a "Notice of Electronic Filing" to the following individuals who have consented in writing to accept this Notice as service of this document by electronic means: AUSA’s Walt, Katherine Miller, and Nick Bunch 3rd Floor, 1100 Commerce, Dallas, Texas 75242, and all counsel of record. Shirley Baccus-Lobel SHIRLEY BACCUS-LOBEL Second Motion for Continuance - Page 21 Case 3:14-cr-00293-M Document 173-1 Filed 10/14/15 Page 1 of 1 PageID 3112 mfg? John Wh?} . (36 Supplement to Defendant?s Second Motion for Continuance Cause No. 3: (1 Case 3:14-cr-00293-M Document 173-2 Filed 10/14/15 Page 1 of 1 PageID 3113 Approved: 1% >61, 73% \EEhy ise Nealy Supplement #2 to Defendant?s Second Motion for Continuance Cause No. 3: (2) Case 3:14-cr-00293-M Document 173-3 Filed 10/14/15 Page 1 of 1 PageID 3114 Approved: Dapheny Elaine Fain Supplement #3 to Defendant?s Second Motion for Continuance Cause No. 3: (3) Case 3:14-cr-00293-M Document 173-4 Filed 10/14/15 Page 1 of 4 PageID 3115 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA v. PRICE et al. § § § § § No. 3:14-CR-00293-M-1 Judge Lynn DECLARATION OF DEFENDANT’S INVESTIGATOR DAN JAMES I, Daniel James, declare as follows: 1. "My name is Daniel James, I am competent to make this declaration. The facts stated in this declaration are with my personal knowledge. 2. I am a Texas licensed private investigator specializing in Federal criminal defense. 3. Part of my duties include computer forensic examinations and Certified Fraud Examinations. I have forty (40) plus years of experience in computer forensics and I have twenty-one (21) plus years as a Certified Fraud Examiner. Additionally, I conduct digital forensic research and analysis regarding computer forensics and fraud examinations for private and court appointed cases. I am an appointed investigator for Defendant John Wiley Price in cause number 3:14-CR-00263-M. 4. I have made, and continue to make, efforts to organize and view the Discovery as it pertains to this case. At this time, I can attest to the following": A. The total volume of “Discovery” relevant to cause number 3:14-CR-00293-M is yet to be determined. To accurately calculate the total storage capacity of data it is necessary to have access to all the material at one time and, to date, I have been unable to achieve that task. Additionally, the chore of accurately determining the capacity of the data has been further complicated by the fact that some of the discovery productions have been directed to the Coordinating attorney while others have been directed to the defendants and, further, the discovery has been produced in many types of “file formats.” As such, this declaration is intended to represent, at best, an educated guess regarding the total volume of discovery and the tasks that will need to be accomplished to streamline the handling of the massive quantity of discovery. B. The attached exhibit is a condensed list of the Government Discovery Productions (GDP) and the number of Gigabytes (GB) relevant to each production. The various productions that will be hosted by the Federal Public Defender’s Office, via the “Summation Database”, are denoted with “*FPD.” Case 3:14-cr-00293-M Document 173-4 Filed 10/14/15 Page 2 of 4 PageID 3116 C. At the time this declaration is being drafted, the Defendants do not have access to the material hosted on Summation. Additionally, only approximately twenty percent of the material has been uploaded into Summation. The remaining eighty percent has been culled by the Defendants and will be uploaded upon completion of the necessary training for the use of the Summation database. The culling process and training are absolute necessities. If all the material provided to the FPD’s Office is uploaded into Summation, the database will be unable to function due to significant “drag.” The lag time will effectively make any attempt to search the database such a time consuming endeavor that it will, for all intents and purposes, render the entire database useless. Additionally, proper training of the FPD staff, as well as the attorneys, is also imperative so that use of the database is as efficient of a process as possible. The training process is expected to be completed by the week of November the 2nd. D. All other materials – the productions listed on the attached exhibit and not labeled with *FPD – will be handled by each defendant, independently. Forensically processing this additional material and arranging for the material to be hosted in a useful and productive manner is also an extremely challenging and time consuming effort. To organize the material and ultimately make it all accessible to the attorneys will require weeks of intense and meticulous work. And, to prevent duplicative effort, this undertaking cannot begin until the Summation database is complete and operational. E. Once Summation is fully loaded and accessible, the attorneys for the defendants will need to identify and obtain the necessary software to view much of the material. This is necessary because the data, collectively, contains many file types that can only be viewed and analyzed with specific programs. Each attorney will need to have the relevant programs loaded onto their computers in order to use the Summation database. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is, to the best of my knowledge, true and correct. BEFORE ME, the undersigned authority, on this day personally appeared Mr. Daniel James who swore or affirmed to the accuracy, to the best of his knowledge, of the above Declaration. NOTARIZATION I certify that, on this 14th day of October, 2015, before me, a Notary Public, Daniel James, whom I know personally to be the person who signed the above document, personally appeared before me and, upon being duly sworn, affirmed the accuracy of the above Declaration. NOTARY SEAL Heather Marie Malone County / State of: Dallas, Texas My commission expires April 2nd, 2019 Case 3:14-cr-00293-M Document 173-4 Filed 10/14/15 PRODUCTION NUMBER 01 *FPD DATE September 9, 2014 Page 3 of 4 PageID 3117 DESCRIPTION GIGABYTES (GB) • 10 discs of materials seized by search warrant 7 GBs2 • 276 discs of Commissioners Court (CC) proceedings1 02 September 19, 2014 Letter regarding ancillary issues 03 November 25, 2014 • Materials seized by search warrant; “GE” stamp = 1B materials likely to be used in Gov.’s case in chief • Pole camera videos Correction Letter 03 December 18, 2014 03(a) February 6, 2015 04 *FPD December 18, 2014 04(a) *FPD September 16, 2015 5.1 *FPD February 6, 2015 5.2 *FPD May 15, 2015 5.3 *FPD 5.3 Supplement 06 – Correction letter July 31, 2015 September 16, 2015 December 18, 2014 20 DVDs CC recordings (previously 276 discs) 10 CDs of CC recordings not previously produced • Materials seized by search warrant; “GE” stamp = 1B materials likely to be used in Gov.’s case in chief Additional materials obtained by search warrant and e-info by 18 U.S.C. 2703(d) order Subpoenaed materials with “SBP” stamp + index • Subpoenaed materials with SBP & Bates #s + index • CC videos & miscellaneous. Audios • Emails and documents provided by Dallas County • SBP-1A-560 • SBP-1A-562 Revised index Pole camera videos  493 GB (renumbered to GDP #4)  7 Hard Drives (renumbered to GDP #6) 94 GBs3 7 GBs4 493 GBs 4.07 GB 387 GBs  473.2 GBs  70.8 GBs 500 GBs (614 GBs)5 3,533 GBS 7 HARD DRIVES POLE CAM # 1 • 269 GB • 462 GB (1D3) • 923 GB (1D6) • 507 GB (1D9) POLE CAM # 2 • 295 GB (1D5) • 928 GB (1D7) • 149 GB (1D10) 1 File format and GDP # was subsequently changed Estimated volume based on the conversion rate of 1 CD having a storage capacity of .7 GBs 3 Estimated volume based on the conversion rate of 1 DVD having a storage capacity of 4.7 GBs 4 Estimated 5 500 GBs according to the Government’s letter; 614 GBs pursuant to the FPD's review of the file size for the file received from the government and identified as production 5.3 2 Case 3:14-cr-00293-M Document 173-4 Filed 10/14/15 07 *FPD June 25, 2015 07(a) *FPD September 16, 2015 08 *FPD March 26, 2015 Updated Spreadsheet 09 10 *FPD 11 12 13 August 11, 2015 14 August 11, 2015 July 1, 2015 September 22, 2015 & September 23, 2015 July 31, 2015 Revised Index 15 16 *FPD September 16, 2015 July 31, 2015 August 11, 2015 17 August 27, 2015 18 19 *FPD June 25, 2015 June 25, 2015 *FPD *FPD Update 20 August 11, 2015 August 11, 2015 September 16, 2015 August 11, 2015 TOTAL VOLUME PRODUCED 6 Page 4 of 4 PageID 3118 • Subpoenaed materials (“1C” bates stamped) • Materials acquired by other means (“Main 1A”) + Index 9.31 GBs (1.12 GB)6 Additional “Main 1A” materials Outline of 4 Terabytes of “digital evidence” from electronic devices and in the possession of North Texas Regional Computer Forensics Lab (RCFL) .11 GB Notice of 14 Banker’s Boxes of documents obtained by a “citizen” who bid on a storage unit in default Privilege logs from Dallas County, various businesses and individuals “1-D” recordings & data Search warrant photos Search warrants, applications, returns, etc. in 24 cause numbers Bulky materials & valuables + Index Surveillance photos Additional statements of Defendants, legal representatives and media materials 4 discs of materials from civil forfeiture cases IRS tax returns & audits Notice of 9 Banker’s Boxes of “filtered documents” provided by former Dallas County Clerk 9 Banker’s Boxes scanned Criminal Records 2100 GBs Materials were not produced with the letter but were subsequently produced to FPD to be uploaded to server and hosted on Summation Database 16.8 GBs7 1.09 GBs Logs were not produced with letter but were subsequently produced via FPD on 09/29/15 29 GBs 1.9 GBs Unknown Unknown .46 GBs 2.8 GBs8 .39 GBs 10.8 GBs Unknown 7,741.7 GBS OR 7.74 TERABYTES9 (7.84 TERABYTES) 9.31 GBs according to the Government’s letter; 1.12 GBs pursuant to the FPD's review of the file size for the file received from the government and identified as production 7 7 Estimated volume based on the conversion rate of 1.2 GBs per Banker’s Box (see production 19 after scanned) 8 Estimated 9 Estimate does not include Discovery Productions 13, 14 and 20 as the volumes are unknown at the current time ITEMS DATA FILE SIZE RELATIVITY DESCRIPTION lAs Subpoena productions Approx. 983 productions Yes Main-1A5 Voluntary productions Approx. 55 productions Yes Seized items - Doc Lab Boxes 122 boxes Yes 1C5 -financials Approx. 26 productions Yes RCFL Extracted Electronic Data 6 DVDs 6 Ext.Drives Yes Hot Docs GE Exhibits 932 documents Yes News articles No News audio video recordings No IRS Productions No Search Warrant Photos 2305 photos No Forf Case file 16 folders No Pole Cam Photos 212 photos No RCFL - Electronic Data 8TB *Partial FBI County Comm Ct Recordings 276 CDs Case Dgcument L73-5 Filed Ln n1 No FBI -1Bs Seized items Bulky No FBI 5,185 Seized items Valuables No FBI - Seized items - 4 boxe No FBI - 1Ds Recordings No Palge 1 cf 1 PagelD 3119