1 1 2 3 4 5 6 7 8 9 10 11 12 13 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON IN TACOMA __________________________________________________________ UNITED STATES OF AMERICA, ) ) Plaintiff, ) No. CR15-274RJB ) CR15-387RJB vs. ) ) BRUCE LORENTE & GERALD ) LESAN, ) ) Defendants. ) __________________________________________________________ MOTION TO WITHDRAW PLEAS __________________________________________________________ BEFORE THE HONORABLE ROBERT J. BRYAN UNITED STATES DISTRICT COURT JUDGE July 28, 2016 14 15 APPEARANCES: 16 Matthew Hampton Assistant United States Attorney Representing the Plaintiff 17 18 19 20 21 22 23 24 Mohammad Hamoudi Federal Public Defender's Office Representing Defendant Lorente Robert Goldsmith Attorney at Law Representing Defendant Lesan Also Present: Colin Fieman Federal Public Defender's Office Representing Defendant Sobaski 25 Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 2 09:31:58AM 1 THE COURT: This is a continuing hearing, 09:32:04AM 2 combined, in Cause No. 15-387, United States versus Gerald 09:32:11AM 3 Lesan; and 15-274, United States versus Bruce Lorente. 09:32:27AM 4 09:32:38AM 5 information. 09:32:52AM 6 whatever you want to say about this, I have a question, 09:32:56AM 7 and then a report of my own. 09:33:00AM 8 09:33:04AM 9 Since our last hearing I have received additional Before I call on counsel to supplement The first question is, there is apparently one more case assigned to me, Sobaski. 09:33:10AM 10 MR. FIEMAN: What is the status of that? Your Honor, I represent Mr. Sobaski. 09:33:14AM 11 He had entered a plea some months ago. 09:33:21AM 12 sticking with that plea agreement. 09:33:23AM 13 THE COURT: 09:33:25AM 14 MR. FIEMAN: 09:33:27AM 15 As of now, he is As of now what? As of now he is sticking with his plea agreement, and has a sentencing date. 09:33:30AM 16 THE COURT: All right. Now, I just went to a 09:33:35AM 17 Federal Judicial Center seminar in San Diego. Among the 09:33:46AM 18 other materials I received was -- even though this was not 09:33:53AM 19 really the subject of a class down there, I received a 09:34:04AM 20 list of cases arising from this same search warrant and 09:34:13AM 21 event. 09:34:21AM 22 recently here, just within the last few days, that all of 09:34:26AM 23 the cases mentioned on their list were mentioned in the 09:34:30AM 24 material you provided me. 09:34:38AM 25 except for two cases that were cited regarding Rule 41, I noticed when I looked at the material you filed So there is nothing new there, Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 3 09:34:50AM 1 where warrants -- one was allowed and one was not allowed. 09:34:57AM 2 One was a Nebraska case, 13-108. 09:35:03AM 3 with this particular search warrant, but it had to do with 09:35:06AM 4 Rule 41. 09:35:09AM 5 Texas, another 2013 case, that can be found at 958 Federal 09:35:20AM 6 Supplement 2d 753, where a warrant was not allowed under 09:35:25AM 7 Rule 41. 09:35:35AM 8 of what was presented at the -- at least available in the 09:35:41AM 9 written work at the seminar. 09:35:43AM 10 That had nothing to do And another case from the Southern District of I have not read those cases, but they are part Now, there was another very interesting thing that 09:35:46AM 11 occurred at the seminar that I wanted to pass on to you. 09:35:52AM 12 We had a speaker named Ovie Carroll, who is with the 09:35:58AM 13 Cybercrime Laboratory of the Department of Justice. 09:36:04AM 14 talked to us about data breaches and cybercrimes, 09:36:10AM 15 et cetera. He 09:36:11AM 16 I was surprised to hear him urge the federal judges 09:36:17AM 17 present, a hundred or so of them, that they should use the 09:36:28AM 18 TOR network to protect their personal information on their 09:36:32AM 19 computers, like work or home computers, against data 09:36:43AM 20 breaches, and the like. 09:36:51AM 21 I did not respond to that. I almost felt like saying, 09:36:59AM 22 "That's not a good way to protect stuff, because the FBI 09:37:06AM 23 can go through that like eggshells." 09:37:11AM 24 me probable, although there is no -- I have no evidence to 09:37:17AM 25 support this, just general experience with these things, And it also seems to Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 4 09:37:23AM 1 it appears probable that the material that I suppressed in 09:37:38AM 2 the Michaud case is likely to be the result of some 09:37:43AM 3 non-FBI hacker, and likely to be available to the whole 09:37:46AM 4 world. 09:37:56AM 5 09:38:04AM 6 filings from both sides in both cases. 09:38:14AM 7 filed a disk that I have not looked at, but I understand 09:38:25AM 8 basically what is in it. 09:38:29AM 9 which lists a lot more cases. But it is not yet, at least that we know of. Now, since our last hearing I received the additional The defendant I did look at the spreadsheet, They call that spreadsheet 09:38:38AM 10 the NIT tracker. 09:38:48AM 11 not heard about before, that are apparently part of the 09:38:52AM 12 various prosecutions arising from this particular NIT and 09:39:05AM 13 search warrant. 09:39:10AM 14 It listed a number of cases that I had On the NIT tracker, filed at Docket No. 83-1 -- I 09:39:18AM 15 didn't count the cases, but there are a lot more cases 09:39:20AM 16 listed than what we had notice of before. 09:39:38AM 17 is no attempt to list the bottom line on various rulings 09:39:44AM 18 that have been made. 09:39:51AM 19 there are a lot of cases with suppression motions that are 09:39:57AM 20 either in process or have been ruled on, and some are 09:40:06AM 21 pending possible appeal. 09:40:10AM 22 What is apparent, however, is that What else, counsel, do you want to tell me? 09:40:18AM 23 MR. HAMOUDI: 09:40:27AM 24 THE COURT: 09:40:30AM 25 I guess there Good morning, your Honor. I didn't identify everybody here. Perhaps you should when you speak so the reporter can be Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 5 09:40:34AM 1 sure he gets the right name attached with what you say. 09:40:38AM 2 09:40:42AM 3 09:40:45AM 4 09:40:50AM 5 is that the government does not actually provide a list of 09:40:55AM 6 cases, and they just provide a number, which initially was 09:41:01AM 7 137 individuals, and then now it appears to have grown to 09:41:06AM 8 186 individuals. 09:41:09AM 9 MR. HAMOUDI: Good morning, your Honor. Mohammad Hamoudi on behalf of Mr. Lorente. Your Honor, one of the concerns that the defense has The problem that presents is that apparently they know 09:41:14AM 10 a number to provide a number. 09:41:19AM 11 there is somebody who is counting things, they would 09:41:22AM 12 appear to know names associated with those numbers. 09:41:26AM 13 So logic tells me that if I know that Mr. Michaud's counsel, Mr. Fieman, moved 09:41:31AM 14 to have this court disclose the list of cases that Main 09:41:35AM 15 Justice has. 09:41:39AM 16 important is twofold: 09:41:46AM 17 to last week, it informs this court's inquiry, either 09:41:52AM 18 today and proceeding forward. 09:41:54AM 19 And the reason we believe that list is One, because, as the court alluded Secondarily, our office is coordinating nationally 09:41:57AM 20 with other defense counsel to insure that these issues are 09:42:00AM 21 preserved. 09:42:05AM 22 don't have contact with everybody who is involved. 09:42:09AM 23 And we are particularly disadvantaged when we And then what happens is that not every defense 09:42:13AM 24 counsel may be attuned into what is going on nationally, 09:42:17AM 25 they may fail to raise the issue, and consequently that Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 6 09:42:21AM 1 results in there being adverse rulings entered, and it 09:42:25AM 2 would ultimately, for precedential value, have an adverse 09:42:31AM 3 effect on Mr. Lorente. 09:42:33AM 4 09:42:37AM 5 complete list, and names on those lists, so we can 09:42:40AM 6 effectively litigate the issue, should the court allow 09:42:43AM 7 Mr. Lorente to withdraw his plea. 09:42:46AM 8 09:42:51AM 9 So for that reason we believe we are entitled to the Secondly, the cases that the government does identify in its motion, three of those, Matish, Darby, and Eure, 09:42:58AM 10 are actually Eastern District of Virginia cases. 09:43:03AM 11 think those raise Rule 41 issues, because the magistrate 09:43:06AM 12 who issued the original warrant was out of the Eastern 09:43:09AM 13 District of Virginia. 09:43:13AM 14 motion to suppress presentation, not the Rule 41 problems 09:43:16AM 15 that are presented with a warrant that is issued for an 09:43:21AM 16 extraterritorial search, which would be out of that 09:43:25AM 17 district. 09:43:27AM 18 I do not Those motions primarily address So, effectively, the government has really identified 09:43:30AM 19 three cases in their motion, the one out of the Eastern 09:43:33AM 20 District of Pennsylvania, one out of the Eastern District 09:43:36AM 21 of Louisiana, and one out of the Southern District of 09:43:39AM 22 Ohio. 09:43:44AM 23 our last motion, they never raised the Rule 41 issue in 09:43:47AM 24 that motion. 09:43:48AM 25 The opinion out of Wisconsin, which I described in Those are the only things I would like to add to the Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 7 09:43:53AM 1 09:43:56AM 2 09:44:00AM 3 Goldsmith appearing for Gerald Lesan, who is also present. 09:44:04AM 4 I just want to comment on the fact that both filings from 09:44:07AM 5 the government and from the defense -- 09:44:09AM 6 THE COURT: 09:44:10AM 7 MR. GOLDSMITH: 09:44:16AM 8 issues are still at a very early stage of development, 09:44:19AM 9 both the issues regarding discovery of the NIT program the 09:44:23AM 10 09:44:27AM 11 court before it rules today. MR. GOLDSMITH: Thank you. Good morning, your Honor. Robert A little louder, please. Both filings show that these government used, as well as the search issues. I know that another defendant, Mr. Tippens, I believe 09:44:32AM 12 pending before this court as well, will be filing a motion 09:44:35AM 13 to suppress on search issues, some of which the court has 09:44:39AM 14 ruled on, but some of which are -- because of the ferment 09:44:45AM 15 going on in all of these cases, are issues the court 09:44:48AM 16 hasn't ruled on yet. 09:44:50AM 17 So what these show to me is that they totally support 09:44:54AM 18 our motion to withdraw the guilty plea, because not only 09:44:59AM 19 has this court already ruled on the discovery issue, which 09:45:02AM 20 we believe would apply equally to both Mr. Lorente and 09:45:06AM 21 Mr. Lesan, but also because there are so many other issues 09:45:10AM 22 now that are coming to a head that are new and I think 09:45:16AM 23 deserve litigation on this unique and evolving area. 09:45:21AM 24 09:45:23AM 25 And so I think not only because this court has ruled favorably on discovery, but because it is such an area of Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 8 09:45:27AM 1 ferment, Mr. Lesan's motion to withdraw should be granted. 09:45:30AM 2 Thank you. 09:45:37AM 3 09:45:45AM 4 Hampton on behalf of the government. 09:45:49AM 5 address the issue of the case list. 09:45:52AM 6 the government doesn't have a case list, as I had stated 09:45:56AM 7 last week at the hearing. 09:45:59AM 8 09:46:01AM 9 MR. HAMPTON: Good morning, your Honor. Matt I will first just I want to be clear, What we did do, as we had done in the Michaud proceeding, we went back to the FBI -- or my colleague at 09:46:06AM 10 CEOS went back to the FBI to ask for updated numbers of 09:46:10AM 11 arrests. 09:46:14AM 12 of, approximately 180 -- I believe it is 186 arrests that 09:46:19AM 13 have resulted in charges, state and federal. 09:46:23AM 14 a list of all cases pending, or a list of all cases in 09:46:27AM 15 every district. 09:46:30AM 16 U.S. Attorney's Office makes individual charging 09:46:33AM 17 decisions. 09:46:34AM 18 prosecutions, those are individual decisions, as well. 09:46:38AM 19 That list is what we know about arrests. 09:46:41AM 20 the number of arrests that have been made. 09:46:45AM 21 So we know there have been, so far that we know There is not Every judicial district, every To the extent there have been state But it is just The defendant Michaud did make that request. It was 09:46:50AM 22 the subject of a motion to compel. The government 09:46:52AM 23 responded. 09:46:56AM 24 All I guess I would say is, I don't know that Rule 16 09:47:00AM 25 compels the government to assemble a list of all I don't believe that the court ruled on that. Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 9 09:47:03AM 1 litigation pending. It is an enormous burden, actually, 09:47:07AM 2 to ask the government to go and pull every district and 09:47:10AM 3 get a name of a defendant and a case number. 09:47:14AM 4 course, there would be concerns about is the government 09:47:16AM 5 then required to constantly update that list and provide 09:47:19AM 6 additional updates about the docket. 09:47:23AM 7 I did, in filing my supplement, try to make sure that 09:47:26AM 8 I identified all the cases that I knew about, and that we 09:47:30AM 9 are aware of, where there have been rulings on these 09:47:35AM 10 issues. 09:47:40AM 11 nine or ten cases cited. 09:47:44AM 12 other rulings. 09:47:45AM 13 I believe we have done that. And, of I think there is I don't believe there are any But what's going on in the country, I think, is not 09:47:50AM 14 really relevant to the issue here today. 09:47:55AM 15 question is, should the defendants be allowed to withdraw 09:47:57AM 16 their pleas. 09:48:00AM 17 The ultimate Every defendant who is charged with a crime -- every 09:48:04AM 18 defendant who is charged with a crime that arises out of 09:48:06AM 19 some larger operation has a choice to make. 09:48:11AM 20 raise novel issues, they can challenge the government's 09:48:14AM 21 proof, or they can decide to enter a plea. 09:48:20AM 22 here made that choice. 09:48:22AM 23 They can The defendants The question is, given the fact that there is pending 09:48:26AM 24 litigation around the country, and this case does raise 09:48:30AM 25 some novel issues and some not so novel issues, but there Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 10 09:48:33AM 1 are novel issues, should that entitle the defendants to 09:48:37AM 2 reconsider their earlier decision? 09:48:42AM 3 09:48:46AM 4 discretion to determine whether this is an appropriate 09:48:48AM 5 case to let the defendants take back their plea and 09:48:51AM 6 reconsider their earlier decision. 09:48:54AM 7 09:48:58AM 8 weigh the costs and benefits of pleading guilty. 09:49:01AM 9 chose to plead guilty. Ultimately, it is up to the court to exercise its In the government's view, they had an opportunity to They They did what many defendants do, 09:49:05AM 10 which is decide to forego litigation for the certainty of 09:49:09AM 11 a plea. 09:49:13AM 12 is to hold the defendants to their bargain. 09:49:16AM 13 In the government's view, the appropriate answer But, of course, if the court feels the unique issues 09:49:20AM 14 in this case merit withdrawal, that's why the court is 09:49:24AM 15 here, and we certainly respect that is the court's 09:49:26AM 16 decision to make. 09:49:30AM 17 THE COURT: 09:49:32AM 18 MR. HAMPTON: 09:50:45AM 19 THE COURT: Thank you. Thank you, your Honor. Let me talk to Mr. Lesan and 09:50:51AM 20 Mr. Lorente about this for a minute. 09:51:04AM 21 rule on this question of whether you should be allowed to 09:51:07AM 22 withdraw your pleas, I want to be sure you understand what 09:51:13AM 23 you're doing and what you're facing. 09:51:21AM 24 09:51:27AM 25 Before I ultimately We now know, from the defendants showing some 48 cases that are similar to yours, and arose from the same basic Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 11 09:51:32AM 1 facts, it is clear from what we do have that in the 09:51:48AM 2 majority of the cases where there have been rulings, the 09:51:54AM 3 evidence was not suppressed, and the various judges that 09:52:01AM 4 have ruled on these similar issues, the majority of them 09:52:05AM 5 have ruled that there should not be a suppression. 09:52:13AM 6 09:52:20AM 7 is no assurance that in your cases, or the case of 09:52:25AM 8 Mr. Tippens that is set next week, that I will rule the 09:52:30AM 9 same way. 09:52:33AM 10 I have suppressed evidence in the Michaud case. There There is now a whole lot of -- there are a whole lot 09:52:40AM 11 of opinions that judges have given orally or in writing 09:52:48AM 12 about the similar issues, in the Michaud case. 09:52:55AM 13 when I am faced with ruling on similar issues I have a lot 09:53:00AM 14 more judicial thinking from other judges that I would 09:53:06AM 15 typically look at and consider in deciding what the proper 09:53:12AM 16 course of action is. And so 09:53:16AM 17 Also, the facts presented to the court may be 09:53:18AM 18 different in your cases, either from you or from the 09:53:23AM 19 government. 09:53:26AM 20 no assurance that this court or any other court will rule 09:53:34AM 21 a particular way on the same issues. 09:53:40AM 22 There may be other information. So there is Do both of you understand that? 09:53:48AM 23 DEFENDANT LORENTE: 09:53:49AM 24 DEFENDANT LESAN: 09:53:50AM 25 THE COURT: Yes, your Honor. Yes. Now, there are a lot of issues pending Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 12 09:53:54AM 1 arising from these searches. There is no telling where 09:53:57AM 2 the law is going to end up after everybody gets rulings 09:54:04AM 3 and the cases go on appeal. 09:54:13AM 4 law will end up on appeal because there is a lot of 09:54:16AM 5 difference among the judges that have already ruled on 09:54:18AM 6 these issues. 09:54:26AM 7 level, it leads to appeals, and appellate courts are not 09:54:37AM 8 very predictable. 09:54:40AM 9 There is no telling where the When judges don't agree on the trial court If you withdraw your pleas, it is likely to be many 09:54:45AM 10 months, and possibly years, before your cases are totally 09:54:51AM 11 resolved. 09:54:59AM 12 we try not to let things drag out, but once cases go on 09:55:05AM 13 appeal, we trial judges think it is like putting the case 09:55:13AM 14 in a dark hole, it may or may not come out at any 09:55:21AM 15 reasonable time. 09:55:22AM 16 I like to think that my court is efficient, and Your custody status, of course, may affect your 09:55:33AM 17 judgment in regard to the unknown amount of time that you 09:55:37AM 18 would be facing before resolution. 09:55:46AM 19 Counsel, you may be able to help me with this. I have 09:55:51AM 20 not looked at the law on this. 09:55:59AM 21 statements made in plea negotiations and the colloquy with 09:56:05AM 22 the court at the time of the entry of the plea -- is there 09:56:11AM 23 any risk of those things being admissible at the time of 09:56:15AM 24 trial? 09:56:21AM 25 What is the risk of I haven't looked at the law. MR. HAMPTON: Your Honor, I would have to look at Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 13 09:56:25AM 1 the rule to be certain, but I believe those statements 09:56:28AM 2 would not be admissible. 09:56:32AM 3 that, but I believe the rules of evidence may cover that 09:56:34AM 4 precise issue. 09:56:35AM 5 09:56:37AM 6 admissible, but I haven't looked at the law. 09:56:39AM 7 taking your chance on whatever the law is on that subject. 09:56:43AM 8 Your lawyers can tell you more about that. 09:56:45AM 9 THE COURT: I am not 100 percent certain on My recollection is it is not You are You need to be aware, and I have touched on this I 09:56:50AM 10 think last week, the United States Attorney, if you 09:56:57AM 11 withdraw your pleas, can go back to the original charges, 09:57:07AM 12 but they can also charge you with any other crimes that 09:57:11AM 13 they think they can prove. 09:57:17AM 14 they would supersede your indictments with additional 09:57:21AM 15 charges. And so it is possible that 09:57:27AM 16 One of the important things here that you need to 09:57:29AM 17 think about is that the benefits that you gained in your 09:57:39AM 18 plea negotiations and your plea agreements are lost. 09:57:50AM 19 let me recite, looking at Mr. Lesan's -- 09:57:59AM 20 your name right? 09:58:02AM 21 DEFENDANT LESAN: 09:58:08AM 22 THE COURT: And Do I pronounce It's Lesan, your Honor. You bargained for an acceptance of 09:58:11AM 23 responsibility graded on the guidelines. 09:58:16AM 24 lost. 09:58:24AM 25 not greater than 60 months. That will be You bargained for a sentencing recommendation of That recommendation will be Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 14 09:58:28AM 1 lost. 09:58:44AM 2 agreements in regard to testing. 09:58:57AM 3 government agreed not to prosecute you for additional 09:58:59AM 4 offenses in the plea agreement, but that agreement will be 09:59:02AM 5 lost, as I have just indicated. 09:59:20AM 6 09:59:27AM 7 but let me refer to the plea agreement. 09:59:55AM 8 lose the guideline acceptance of responsibility. 10:00:01AM 9 lose the sentencing recommendation that you had agreed to. 10:00:09AM 10 You give up the right to be free from prosecution of other 10:00:13AM 11 cases that you agreed to -- or other charges that you 10:00:18AM 12 agreed to in the plea agreement. 10:00:31AM 13 government can, if they choose to, charge you with 10:00:34AM 14 additional offenses. 10:00:39AM 15 the plea agreements that will be lost. 10:00:45AM 16 those plea agreements will be lost, as well, if you change 10:00:48AM 17 your pleas. 10:00:51AM 18 There is a waiver of -- or there is confidentiality The As to Mr. Lorente's plea, much the same, I believe, Again, you will You will As I indicated, the Those are just some of the things in Everything else in Now, do both of you understand that? 10:00:56AM 19 DEFENDANT LESAN: 10:00:59AM 20 DEFENDANT LORENTE: 10:00:59AM 21 THE COURT: 10:01:01AM 22 That will be lost. Yes, your Honor. Yes, your Honor. Have you discussed those risks with your lawyers? 10:01:02AM 23 DEFENDANT LESAN: 10:01:04AM 24 DEFENDANT LORENTE: 10:01:05AM 25 THE COURT: Yes, your Honor. I have. Counsel, you are satisfied that the Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 15 10:01:06AM 1 defendants understand their rights and what they are going 10:01:09AM 2 to be giving up if they should change their pleas? 10:01:15AM 3 MR. HAMOUDI: 10:01:17AM 4 MR. GOLDSMITH: 10:01:39AM 5 THE COURT: 10:01:42AM 6 discretionary call, but it is not totally discretionary. 10:01:47AM 7 It is not just what I think ought to happen. 10:01:51AM 8 defendants have to show a fair and just reason for 10:01:56AM 9 withdrawal of their pleas. 10:01:58AM 10 I do, your Honor. Likewise, your Honor, yes. As counsel pointed out, this is a The I think the law indicates there should be a liberal 10:02:02AM 11 application of that rule. 10:02:08AM 12 judgment that there are intervening circumstances since 10:02:14AM 13 their plea that did not exist at the time of the plea, and 10:02:21AM 14 those circumstances justify a change of plea. 10:02:29AM 15 In this circumstance it is my Typically non-binding rulings from other courts are 10:02:32AM 16 not sufficient to justify a plea change, but an impending 10:02:42AM 17 review of the law by the Supreme Court is sufficient. 10:02:50AM 18 And when you look at the number of cases, 180-some, 10:02:56AM 19 now filed, and the 48 listed in the defense 10:03:10AM 20 listing/spreadsheet that are similar cases, and when you 10:03:17AM 21 look at the motions pending in those cases, and the 10:03:23AM 22 rulings that have been made, even though those rulings are 10:03:26AM 23 not binding on this court, what is apparent is that the 10:03:31AM 24 rulings go different ways. 10:03:37AM 25 from the various courts that have ruled on these Not only that, but the rulings Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 16 10:03:41AM 1 suppression issues are based on different rationales, 10:03:47AM 2 different reasoning by different judges. 10:03:56AM 3 10:04:00AM 4 made, but I have looked at some of them, and it is 10:04:04AM 5 important that some judges have given this whole 10:04:07AM 6 suppression motion rather short shrift, and others have 10:04:11AM 7 found parts of it very troubling. 10:04:19AM 8 seem to be going all sorts of different directions, even 10:04:23AM 9 though the majority of the district court rulings so far 10:04:28AM 10 10:04:38AM 11 I have not looked at all of the rulings that have been There are cases that deny suppression motions. It appears to me that there is impending review of the 10:04:46AM 12 issues raised in these motions to suppress in various 10:04:51AM 13 courts of appeal around the country. 10:05:00AM 14 likely that some of these issues will find their way into 10:05:04AM 15 the Supreme Court, although nobody knows whether that 10:05:07AM 16 actually would happen, and nothing is pending there now 10:05:11AM 17 that I am aware of. 10:05:19AM 18 It looks to me very Now, these cases have been assigned to my court for 10:05:32AM 19 the sake of uniformity and the handling of the cases 10:05:36AM 20 within this district. 10:05:42AM 21 issues on only one of the similar cases, the Michaud case. 10:05:52AM 22 The last ruling in that case was made after the defendants 10:05:59AM 23 in these two cases entered their plea. 10:06:07AM 24 reason to hope at least that rulings will be consistent if 10:06:23AM 25 other motions are made, similar to the ones in Michaud, I have ruled on the suppression And there is Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 17 10:06:28AM 1 although there is no assurance of that. And in that case, 10:06:35AM 2 of course, a notice of appeal has been filed, leaving a 10:06:39AM 3 likelihood of review in Michaud. 10:06:47AM 4 10:06:50AM 5 on similar issues, and at least two have suppressed the 10:06:58AM 6 evidence. 10:07:03AM 7 10:07:08AM 8 appealable issues, because they are not -- the law is not 10:07:16AM 9 clearly decided. As we know, other cases around the country have ruled I wanted to address the issues that are likely The first, of course, is the validity of 10:07:19AM 10 the subject warrant under Criminal Rule 41. 10:07:27AM 11 underlying the validity of that warrant based on the 10:07:31AM 12 server being in Virginia is an issue that is ripe for 10:07:44AM 13 disagreement. 10:07:48AM 14 And the facts The nature of Rule 41 as a simple procedural rule or a 10:07:54AM 15 structural rule that has the force of the Constitution 10:08:00AM 16 behind it is not clear in the law, and different judges 10:08:10AM 17 have come down differently at this point on that subject. 10:08:14AM 18 And that, of course, has to do with the power of 10:08:17AM 19 magistrate judges, which is an issue in this case. 10:08:26AM 20 The application of the good faith exception to each 10:08:35AM 21 case is a subject that is likely to be the basis for 10:08:42AM 22 appeal. 10:08:49AM 23 The discoverability of the details of the so-called 10:08:55AM 24 NIT is also a subject for appeal. As you know, in the 10:09:09AM 25 Michaud case I had a hearing in camera. Whether I was Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 18 10:09:15AM 1 correct in my ruling is also a subject of appealable 10:09:21AM 2 issues. 10:09:25AM 3 10:09:32AM 4 also, I think, appealable under the facts of the cases 10:09:38AM 5 here. 10:09:50AM 6 disagree about that. 10:09:58AM 7 details of the NIT are not discoverable, what sanction, if 10:10:03AM 8 any, is appropriate, from none to suppression to 10:10:12AM 9 dismissal, are, I think, issues that are also appealable. 10:10:18AM 10 10:10:26AM 11 10:10:27AM 12 The application of the law enforcement privilege is Some have applied it, including myself. Others may If that privilege applies, and the So there is a lot here where the law is simply not well settled. And, of course, the facts are also in dispute. In 10:10:37AM 13 particular, I relied in some of the rulings I have made on 10:10:48AM 14 the expert evidence of a particular witness, and 10:10:55AM 15 discounted an FBI witness' testimony in comparison to the 10:11:02AM 16 other witness. 10:11:08AM 17 the credibility of the experts that have testified 10:11:14AM 18 basically to the same thing. 10:11:19AM 19 credibility issues, as well. 10:11:22AM 20 Other judges have come down differently on So you end up with So as I indicated, it appears highly likely to me that 10:11:26AM 21 the issues will go up to the various circuits, and it is 10:11:33AM 22 not unlikely that some of these issues will end up in the 10:11:36AM 23 Supreme Court. 10:11:44AM 24 going to happen. 10:11:47AM 25 various district court rulings on these subjects, because, It is complex and hard to forecast what is It becomes more complex as you read the Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 19 10:11:55AM 1 as I think I indicated before, the rulings were all over 10:11:58AM 2 the map as to what law applies, how it applies, what the 10:12:08AM 3 facts are, and so forth. 10:12:10AM 4 10:12:23AM 5 I think these defendants should be allowed to withdraw 10:12:26AM 6 their plea. 10:12:35AM 7 that the United States Attorney applied time pressure to 10:12:37AM 8 them by short deadlines on plea offers. 10:12:42AM 9 forced into plea decisions before the companion and lead Now, there is another somewhat collateral reason that And that reason is the defendants' complaint So they were 10:12:50AM 10 case, the Michaud case, and its motion practices were 10:12:55AM 11 resolved. 10:12:58AM 12 The government's plea negotiation tactics are not 10:13:00AM 13 typically the court's concern, and I think they have to 10:13:06AM 14 make their own choices about how to conduct their plea 10:13:12AM 15 negotiations. 10:13:17AM 16 additional reason. 10:13:26AM 17 arguments for plea withdrawal, when they are put under 10:13:30AM 18 pressure to make a quick decision in matters that are as 10:13:35AM 19 complex as these are. 10:13:40AM 20 But in this situation, that is an Those tactics add to the defendants' So it is my judgment that in both cases the motion to 10:13:43AM 21 withdraw guilty plea is granted. 10:13:53AM 22 Mr. Lesan's case, and Docket No. 72 in Mr. Lorente's case. 10:14:04AM 23 And it is so ordered. 10:14:06AM 24 10:14:12AM 25 That's Docket 61 in The sentencing dates will be stricken, and the orders regarding sentencing procedure will also be stricken, and Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 20 10:14:18AM 1 we will set the matter for trial and pretrial deadlines. 10:14:25AM 2 10:14:33AM 3 trial date in September, like September 26th. 10:14:47AM 4 the clerk to issue a scheduling order with that date, and 10:14:59AM 5 the other pretrial dates that flow from that. 10:15:02AM 6 you a short time to make whatever motions you want to 10:15:10AM 7 make, but I don't think we can delay setting, because of 10:15:15AM 8 speedy trial rules. 10:15:21AM 9 things and so forth. 10:15:31AM 10 MR. HAMPTON: 10:15:33AM 11 9/26 for both cases? Speedy trial, according to my deputy, would require a 10:15:35AM 12 THE COURT: 10:15:36AM 13 MR. HAMPTON: 10:15:38AM 14 It gives And, of course, motions can delay We need to get these on track. Your Honor, just to clarify, is that Pardon? The trial date is for both? September 26th as to both cases? 10:15:40AM 15 THE COURT: 10:15:42AM 16 MR. HAMPTON: 10:15:45AM 17 I would ask That doesn't mean they are combined. I understand. The dates are the same? 10:15:47AM 18 THE COURT: Yeah, they should both be set the same 10:15:50AM 19 day. 10:15:54AM 20 that motions will be filed that will delay the trial date, 10:15:59AM 21 by operation of law anyway. 10:16:09AM 22 go to trial in September. 10:16:17AM 23 At this time it appears pretty clear and obvious MR. HAMOUDI: If you don't file a motion, Okay? Any questions? Your Honor, I do have a question. 10:16:19AM 24 had requested and made mention of these 186 cases. 10:16:24AM 25 the government made representations -- Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 And I 21 10:16:25AM 1 10:16:27AM 2 10:16:31AM 3 MR. HAMOUDI: 10:16:39AM 4 THE COURT: 10:16:46AM 5 That's the kind of thing I would hope you would talk with 10:16:49AM 6 the government about and come to some agreement on. 10:16:54AM 7 if you can't agree, well, certainly make your motion, and 10:16:58AM 8 we will decide. 10:17:01AM 9 information you want, so they should have a chance to 10:17:05AM 10 11 THE COURT: on that. respond. Yeah, you did. And I meant to comment Make your motion. Okay? Thank you, your Honor. I don't want to rule on them now. But They may have some trouble getting the Thank you. (Proceedings adjourned.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101 22 1 C E R T I F I C A T E 2 3 4 I, Barry Fanning, Official Court Reporter for the 5 United States District Court, Western District of 6 Washington, certify that the foregoing is a true and 7 correct transcript from the record of proceedings in the 8 above-entitled matter. 9 10 11 12 13 _________________ /s/ Barry Fanning Barry Fanning, Court Reporter 14 15 16 17 18 19 20 21 22 23 24 25 Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. - Seattle, WA 98101