Case 3:15-cr-05351-RJB Document 191 Filed 05/09/16 Page 1 of 8 1 JUDGE ROBERT J. BRYAN 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 5 6 7 UNITED STATES OF AMERICA, 8 Plaintiff, 9 v. 10 11 JAY MICHAUD, Defendant. 12 ) ) ) ) ) ) ) ) ) ) ) No. CR15-5351RJB REPLY TO GOVERNMENT’S RESPONSE TO SECOND DEFENSE MOTION TO DISMISS INDICTMENT 13 14 15 I. ARGUMENT Mr. Michaud submits this final memorandum in support of the Second Motion to 16 Dismiss Indictment in order to briefly respond to the Government’s May 6, 2016 17 Consolidated Response (Dkt. 188). 18 A. 19 Attached to this Reply are declarations from Dr. Matthew Miller (Asst. Professor Supplemental Expert Declarations. 20 of Computer Science at the University of Nebraska), Robert Young (a computer 21 forensics expert) and Shawn Kasal (a specialist in computer network security). The 22 declarations address several lingering misconceptions and errors in the Government’s 23 pleadings, including errors in Special Agent Daniel Alfin’s understanding of the 24 relationship between the various digital storage devices seized from Mr. Michaud and 25 the forensic analysis process for those devices. See, inter alia, exh. B (Declaration of 26 Robert Young) at ¶¶ 4-10. REPLY TO GOVERNMENT’S RESPONSE TO SECOND DEFENSE MOTION TO DISMISS INDICTMENT (United States v Michaud; CR15-5351RJB) - 1 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 191 Filed 05/09/16 Page 2 of 8 1 The declarations also explain more fully how the FBI’s use of an NIT to attack 2 Mr. Michaud’s personal computer opened a Pandora’s box of issues and problems that 3 the Government’s pleadings largely ignore. While Mr. Michaud is reluctant to preview 4 additional aspects of his anticipated defenses at trial, the declarations detail some of the 5 issues that the defense will seek to present to a jury that turn on the FBI’s compliance 6 with the Court’s discovery order. 7 Most broadly (and as previously outlined by the defense), the FBI’s deployment 8 of an NIT against Mr. Michaud’s computer rendered it (and all related devices) highly 9 vulnerable to the type of third-party attacks that are associated with the distribution of 10 child pornography. “Such attacks, often involving the transmission, storage and 11 distribution of child pornography in particular, are well documented. The illicit Internet 12 child pornography industry and distribution networks are massive, and some of the 13 most sophisticated efforts to remotely transmit and secretly store illegal content on the 14 computers of unwitting Internet users (including corporations and large networks) have 15 been developed by pornography distributors.” Exh. C (Declaration of Shawn Kasal) at 16 ¶ 7; see also United States v. Arterbury, CR15-182JHP (D. Okla. April 25, 2016) 17 (granting motion to suppress all evidence derived from the Virginia NIT warrant and 18 describing the NIT as a “Trojan horse,” a type of computer virus); Kaspersky Labs 19 (cyber security software provider), What is a Trojan Virus? (“A trojan horse…is a type 20 of malware that is often disguised as legitimate software” and can delete, block, and 21 modify data, and also render a computer vulnerable to third party attacks), available at: 22 https://usa.kaspersky.com/internet-security-center/threats/trojans#.VzDq06P2bct. 23 Further, “[w]ithout knowing what exploit was used by the FBI in this case,” 24 along with other discovery that the Court has ordered, it is not possible to “determine 25 whether the files [i.e. child pornography] that the government says were located on 26 various storage devices were put on those devices by Mr. Michaud.” Exh. A. REPLY TO GOVERNMENT’S RESPONSE TO SECOND DEFENSE MOTION TO DISMISS INDICTMENT (United States v Michaud; CR15-5351RJB) - 2 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 191 Filed 05/09/16 Page 3 of 8 1 (Declaration of Prof. Miller) at ¶ 7. This is a particular issue in this case, since the 2 Government has informed defense counsel that it cannot identify the source of most of 3 the pictures allegedly found on Mr. Michaud’s digital devices. 4 B. 5 The Government maintains that it does not need to meet the requirements of the 6 Classified Information Procedures Act (CIPA) because “the government is not arguing 7 that the discovery Michaud is seeking is itself currently classified.” Govt. Consolidated 8 Response at 8-9. 9 The Government’s Non-Compliance With CIPA. At the same time, however, the Government is relying on the classified nature of 10 the information it wants to present to persuade the Court to grant ex parte proceedings 11 and vacate its discovery order. Under these circumstances, the Government cannot rely 12 on Fed. R. Crim. P. 16(d) to circumvent CIPA’s requirements for ex parte proceedings. 13 See United States v. Sedaghaty, 728 F.3d 885, 903 (“CIPA establishes procedures for 14 handling classified information in criminal cases,” and § 6 in particular “sets out 15 procedures to safeguard classified information, both before and during trial”) (quotation 16 and citation omitted). 17 Typically, trial courts review unclassified records ex parte under Rule 16(d) 18 (such as informant files or police personnel records) to separate records that are relevant 19 to the defense from records that need not be disclosed at all, or to identify discovery 20 that could place people or pending investigations at risk. Relevant but sensitive 21 material can then be disclosed with restrictions, such as sealing and protective orders or 22 redaction. 23 Here, by contrast, the Government is relying exclusively on the classified nature 24 of its proposed pleading to prevent the defense from ever seeing that pleading and 25 effectively defending the Court’s discovery order. Congress enacted CIPA in part to 26 ensure that the Government cannot rely on an unelaborated claim of state secrecy, like REPLY TO GOVERNMENT’S RESPONSE TO SECOND DEFENSE MOTION TO DISMISS INDICTMENT (United States v Michaud; CR15-5351RJB) - 3 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 191 Filed 05/09/16 Page 4 of 8 1 the one the Government is asserting here, to gain an unfair advantage in the discovery 2 process. “CIPA does not alter established principles of discovery or create new 3 privileges against disclosure[.]” United States v. El-Hanafi, No. S5 10 CR 162(KMW), 4 2012 WL 603649, at *2 (S.D.N.Y. Feb. 24, 2012), citing United States v. Aref, 533 F.3d 5 72, 78 (2d Cir. 2008); accord, H.R.Rep. No. 96-831, pt. 1, at 27 (1980) (noting that 6 CIPA “is not intended to affect the discovery rights of a defendant”). In the discovery 7 context, what CIPA does is “clarify[y] the structure through which courts apply the 8 existing common-law privilege against the disclosure of state secrets.” El-Hanafi, 2012 9 WL 603649, at *2. 10 The Government’s suggestion that CIPA does not apply because the classified 11 information is not discovery itself, but instead material the Government is asking the 12 Court to review in resolving discovery issues, is without foundation. CIPA is not so 13 narrow. Title 18 U.S.C. app. 3 § 6 specifically calls for hearings for the court “to make 14 all determinations concerning the use, relevance, or admissibility of classified 15 information that would otherwise be made during the trial or pretrial proceeding.” The 16 determination of what use can be made of the Government’s proffered classified 17 information comes directly within that provision. Thus, while CIPA and Fed. R. Crim. 18 P. 16 overlap, the Government’s argument that it can ignore CIPA’s specific 19 requirements for dealing with classified information because of Rule 16’s general 20 discovery provisions is misguided. 21 The Court should also deny the Government’s request to submit an ex parte 22 pleading because, taking the Government’s representations about its contents at face 23 value, the pleading is irrelevant. Specifically, the Government has stated that the 24 proposed secret pleading has no bearing on the Court’s finding that the discovery it has 25 ordered is relevant and helpful to the defense. Instead, the proposed pleading only 26 REPLY TO GOVERNMENT’S RESPONSE TO SECOND DEFENSE MOTION TO DISMISS INDICTMENT (United States v Michaud; CR15-5351RJB) - 4 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 191 Filed 05/09/16 Page 5 of 8 1 addresses the harms that might arise if the discovery were made public. Govt. Motion 2 for Reconsideration (Dkt. 165) at 3. 3 For the sake of argument, the Court can assume that the proposed pleading 4 establishes that public disclosure of the NIT discovery (which the defense is not 5 seeking) would create substantial risks, even including such things as compromising the 6 surveillance of terrorist cells or revealing how the NSA is hacking into a foreign 7 government’s Internet traffic. The Court can also overlook the fact that the actual NIT 8 discovery is not classified, a fact that is otherwise hard to reconcile with the harms the 9 Government claims might arise from its disclosure. And the Court can go even further 10 and assume that it could not fashion a protective order of any kind that would prevent 11 the potential harms the Government wants to outline in its pleading. 12 The problem for the Government is that, even if all of that were true, the 13 situation in this case would remain the same: a choice between deferring to the 14 Government’s position that it will not or cannot comply with the Court’s discovery 15 order and upholding Mr. Michaud’s constitutional rights to effective representation and 16 a fair trial. As detailed in the accompanying declarations, the discovery ordered by the 17 Court goes to the heart of Mr. Michaud’s defense. The Supreme Court has already 18 made plain that, in situations like this, a defendant’s constitutional rights must prevail. 19 As a result, nothing in the Government’s proposed pleading about potential harms can 20 alter the ultimate choice it must make between disclosure and dismissal. Jencks v. 21 United States, 353 U.S. 657, 672 (1957) (“the criminal action must be dismissed when 22 the Government, on the ground of privilege, elects not to comply with an order to 23 produce[.]”). 24 25 26 REPLY TO GOVERNMENT’S RESPONSE TO SECOND DEFENSE MOTION TO DISMISS INDICTMENT (United States v Michaud; CR15-5351RJB) - 5 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 191 Filed 05/09/16 Page 6 of 8 C. 1 2 The Government’s Proposed “Lesser Sanction” is Unworkable and Would in Fact Place Mr. Michaud at an Even Greater Disadvantage. The defense agrees with the Government that it is not “unethical or dishonest” to 3 “dismiss charges at the FBI’s request if necessary to avoid disclosure.” Govt. 4 Consolidated Response at 6. To the contrary, the law is clear that dismissal is the 5 appropriate response if there is an irreconcilable conflict between legitimate national 6 security interests and a defendant’s right to a fair trial. While the defense firmly 7 believes that both full discovery and a fair trial can be achieved with appropriate 8 security measures, the FBI’s position that it will not comply with the Court’s discovery 9 order under any circumstances means that dismissal is not only ethical but required. 10 Nevertheless, the Government suggests that some “lesser sanction” may be 11 appropriate, but this suggestion is misguided. See id. at 13. Merely excluding the 12 evidence that was collected by the NIT directly is not an option because (as made plain 13 in the accompanying declarations) the Government’s use of an NIT and the effects it 14 may have had on other evidence are a central part of Mr. Michaud’s defense against the 15 entire indictment. 16 Moreover, the defense is seeking a fair trial, not one where the outcome depends 17 on speculation about how Mr. Michaud was targeted by the FBI or incomplete 18 testimony about how the complex technology at the heart of this case actually works. 19 Indeed, it is hard to envision what a trial would look like if the Court tried to excise the 20 NIT related testimony and evidence in bits and pieces, since the Government itself 21 recognizes that the NIT is a central part of the case narrative. See Govt. Consolidated 22 Response at 15; February 17, 2016 Hearing Transcript (dkt. 178, exh. A) at 13. 1 23 The Government’s proposed “lesser sanction” would also place the defense at a continuing disadvantage pre-trial. The premise of the Government’s lesser sanction is that the evidence collected by the NIT cannot be deemed sufficiently reliable to present to a jury if the defense does not have the opportunity to analyze and challenge that evidence. But in that case, the Court’s ruling on the defense’s suppression motions may need to be reconsidered. This is because the Court’s finding that there was probable 1 24 25 26 REPLY TO GOVERNMENT’S RESPONSE TO SECOND DEFENSE MOTION TO DISMISS INDICTMENT (United States v Michaud; CR15-5351RJB) - 6 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 191 Filed 05/09/16 Page 7 of 8 1 2 II. CONCLUSION For the reasons stated above and in Mr. Michaud’s Consolidated Response to the 3 Government’s Motion for Reconsideration, the Court should deny the motion for 4 reconsideration of its February, 2016 discovery order; deny the Government’s motions 5 for ex parte and in camera proceedings; and grant Mr. Michaud’s motion for dismissal 6 of the indictment. 7 Dated this 9th Day of May, 2016. 8 Respectfully submitted, 9 10 s/ Colin Fieman s/ Linda Sullivan 11 Attorneys for Jay Michaud 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 cause to seize Mr. Michaud’s computer and other devices assumes that the identifying data seized by the NIT was reliable. But that assumption has never been tested because of the Government’s refusal to disclose its “identifiers” and other key data. See exh B. (Young declaration) at ¶¶ 11-13; exh. C (Kasal declaration) at ¶ 9. If the court reverses its discovery order, the defense will be foreclosed from raising any new suppression issues based on identifier errors and other probable cause issues that only the discovery can resolve. REPLY TO GOVERNMENT’S RESPONSE TO SECOND DEFENSE MOTION TO DISMISS INDICTMENT (United States v Michaud; CR15-5351RJB) - 7 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 191 Filed 05/09/16 Page 8 of 8 1 CERTIFICATE OF SERVICE 2 I hereby certify that on May 9, 2016, I electronically filed the foregoing with the 3 Clerk of the Court using the CM/ECF system which will send notification of such filing 4 to all parties registered with the CM/ECF system. 5 6 s/ Carolynn Cohn, Paralegal Federal Public Defender Office 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REPLY TO GOVERNMENT’S RESPONSE TO SECOND DEFENSE MOTION TO DISMISS INDICTMENT (United States v Michaud; CR15-5351RJB) - 8 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710