1 SUPERIOR COURT OF THE DISTRICT OF COLUMB I A 2 CRIMINAL DIVISION 3 ----------------------------x 4 UNITED STATES OF AMERICA 5 6 7 8 9 10 versus ARTURO VASQUEZ, PHILLIP GLASER, CHRI ST I AN VALENC I A, MOLLY CARTER, DANIEL MELTZER, CALY RETHERFORD, CHRISTOPHER LITCHF I ELD, CAROLINE UNGER, MATTHEW HESSLER, DYLAN PETROLH I LOS, Criminal Action Numbers 2017 2017 2017 2017 2017 2017 2017 2017 2017 2017 CF2 CF2 CF2 CF2 CF2 CF2 CF2 CF2 CF2 CF2 1369 1368 1203 1380 1176 1378 1235 1355 7212 7216 11 12 13 Defendants. ----------------------------x Washington, D.C. Thursday, May 31st, 2018 14 15 The above-entitled action came on for motions before the Honorable ROBERT MORIN, Associate Judge, in Courtroom Number 302. 16 17 18 THIS TRANSCRIPT REPRESENTS THE PRODUCT OF AN OFFICIAL RE PORTER, ENGAGED BY THE COURT, WHO HAS PERSONALLY CERTIFIED THAT IT REPRESENTS TESTIMONY AND PROCEEDINGS OF THE CASE AS RECORDED. 19 20 21 22 23 24 25 1 1 AP PEARANCES: 2 On behalf of the Government: 3 4 BRITTANY KEIL, Esquire AHMED BASET, Esquire Assistant United States Attorney 5 On behalf of the Defendants: 6 PATRICK LINEHAN, Esq. (Defendant VASQUEZ) DAVID FRAGALE, Esq. (Defendant VASQUEZ) JON FELLNER, Esq. (Defendant GLASER) MICHAEL BRUCKHEIM, Esq. (Defendant GLASER) REBECCA LEGRAND, Esq. (Defendant VALENCIA) MEHREEN I MTIAZ, Esq. (Defendant VALENCIA) WI LL I AM COFF I ELD, Esq. (Defendant CARTER) MARK GOLDSTONE, Esq. (Defendant Meltzer) SHARON WEATHERS, Esq. (Defendant Retherford) MARK SWEET, Esq. (Defendant Litchfield) MICHELLE BRADSHAW, Esq. (Defendant Litchfield) CHARLES MURDTER, Esq. (Defendant Unger) CARY CLENNON, Esq. (Defendant Hessler) ANDREW CLARKE, Esq. (Defendant Petrolhi los) 7 8 9 10 11 12 13 14 Stephanie M. Austin, RPR, Official Court Reporter CRR (202) 879-1289 15 16 17 18 19 20 21 22 23 24 25 2 P R 0 C E E D I N G S 1 2 THE DEPUTY CLERK: United States versus 3 Arturo Vasquez , 2017 CF2 1369; United States versus 4 Phillip Glaser, 2017 CF2 13 68 ; United States versus 5 Christian Valencia , 2017 CF2 1203; United States versus 6 Molly Carter, 2017 CF2 1 380 ; United States versus 7 Daniel Meltzer , 2017 CF2 1176; United States versus 8 Clay Retherford, 2017 CF2 1378; United States versus 9 Christopher Litchfield, 2017 CF2 1235; United States 10 versus Caroline Unger, 2017 CF2 1355; United States versus 11 Matthew Hessler, 2017 CF2 7212; United States versus 12 Dylan Petrolhilos, 2017 CF2 7216. 13 14 15 16 17 18 19 20 21 MR . BASET: Good morning, Your Honor. United States, Ahmed Baset. MS. KEIL: Good morning, Your Honor. Brittany Keil for the United States. MR . LINEHAN: Linehan for Mr . Vasquez . MR . FRAGALE: Good morning, Your Honor. David Fragale also for Mr. Vasquez. MR . COFFIELD: Good morning, Your Honor. Bill Coffield for Molly Carter. 23 ready to proceed. 25 Patrick Mr. Vasquez is present. 22 24 For the MS . LEGRAND: Ms. Carter is present and Good morning, You r Honor. Rebecca Legrand for Christian Valencia, who is present as 3 1 well. 2 MR. BRUCKHEIM: Good morning, Your Honor. 3 Michael Bruckheim and Jonathan Fellner are here present on 4 behalf of Mr. Glaser, who is presently seated in the front 5 row. 6 THE COURT: 7 MR. MURDTER: Good morning. Good morning, Your Honor. 8 Charles Murdter on behalf of Caroline Unger, who is 9 present. 10 11 MR. SWEET: behalf of Mr. Litchfield, who is present. 12 13 Mark Sweet and Michelle Bradshaw on MR. CLENNON: Cary Clennon for Matthew Hessler, who is present. 14 MR. CLARKE: Andrew Clarke, counsel for 15 Dylan Petrolhi los, who i s present. 16 MR. GOLDSTONE: Good morning, Your Honor. 17 Mark Goldstone, appearing for Daniel Meltzer, who's seated 18 in the back row. 19 MS. WEATHERS: Good morning, Your Honor. 20 Sharon Weathers for Clay Retherford, who's presently 21 seated. 22 THE COURT: Okay. Everybody can be seated. 23 I 'll hear from the Government. 24 MR. BASET: 25 I'll take some of the wind out of the sails here Thank you. 4 1 by announcing, the Government does intend to dismiss 2 several cases without prejudice today, and it impacts both 3 trial groups. 4 5 THE COURT: Okay. Could you announce the motion -- the cases which you're seeking to dismiss? 6 MR. BASET: Yes. 7 That would incl ude the entirety of the June 4th 8 trial group to include: United States versus 9 Daniel Mel tzer in 2017 CF2 1176; United States versus 10 Clay Retherford, 2017 CF2 1378 ; United States versus 11 Christopher Litchfield, 2017 CF2 1235; United States 12 versus Caroline Unger, which is 2017 CF2 1355; United 13 States versus Matthew Hessler, 2017 CF2 7212; as well as 14 Dylan Petrolhilos, U.S. v Dylan Petrolhilos, 2017 CF2 15 7216. 16 THE COURT: Okay. Mr. Hessler, Mr. Litchfield, 17 Mr . Meltzer , Mr . Petrolhi los, Mr. Retherford and 18 Ms . Unger, your case has been dismissed. 19 go. 20 MR. CLARKE: 21 THE REPORTER: 22 23 24 25 You 're free to Your Honor, before that -What's your name, please? I'm sorry. MR. CLARKE: I 'm sorry. This is Andrew Clarke, counsel for Mr. Petrolhilos. I'm going to object to with it being without 5 1 prejudice, just because we haven 't discussed the Brady 2 violations . 3 I think if Your Honor makes a decision on the 4 evidence and the evidence is out, the Government is not 5 going to be able to bring the case back. MR. GOLDSTONE: 6 7 Daniel Meltzer. 8 9 Your Honor, Mark Goldstone for I would join Mr. Clarke's motion that it be with prejudice. Your Honor has already decided the 10 constitutional violation. 11 today was to decide the sanction. 12 The only issue we're here for On the basis of a constitutional due process 13 violation, we ask that this case be dismissed with 14 prejudice. 15 THE COURT: 16 SIMULTANEOUS SPEAKERS: 17 THE COURT: 18 off ice? 19 20 21 Do you have to make a call to your That's fine. Okay. 23 MR . BASET: Sure. 24 MS . KEIL: 25 We are prepared to There are other charges in cases as well. THE COURT: 22 Yes , Your Honor. Because I will move forward on -MR . BASET: proceed. All other defendants join in that? So why don't you go through that. And additionally in the May 29th group, the Government will be dismissing the United States 6 1 versus Molly Carter, 2017 CF2 1380. 2 The remaining defendants in that group, the 3 United States versus Phillip Glaser, the United States 4 versus Christian Valencia, and the United States versus 5 Arturo Vasquez, the Government will only be proceeding on 6 Counts 2, 3, 4 and 5. 7 THE COURT: 8 MS. KEIL: 9 THE COURT: 10 It's a bench trial, Your Honor. There are four mi sdemeanors. THE COURT: Is it five now? I thought it was four. 14 MS. KEIL: My understanding is four is still a bench trial, Your Honor. THE COURT: 16 Okay. Could you announce the 17 could you announce the charges upon whi ch you're 18 proceeding? 19 MS. KEIL: 20 Count 2 is rioting, which is misdemeanor 21 I t's (Court and clerk confer.) 12 15 So they're still a jury trial? got to be fi ve now? 11 13 Those are all misdemeanor counts. Yes, Your Honor. rioting. 22 Count 3, conspiracy to riot. 23 Count 4 is a destruction of property charge, as 24 25 a misdemeanor. And Count 5 is also destruction of property, as 7 1 a misdemeanor. 2 3 MR. BASET: And, Your Honor, if I could make two points as far as -- 4 THE COURT: 5 Can I just get -- destruction of property. 6 was that other one? 7 MS. KE I L: 8 I'm sorry. What The final two are both destruct i on o f property . THE COURT: 9 10 Yes. 11 MR. BASET: Both destruction of property. Just for the record, as a basis of 12 our decision today, it was informed at two levels. 13 first is: 14 to dismiss on the -- Count 1, which was the felony rioting 15 Count. Judge Knowles' ruling yesterday on the motion 16 Her 17 THE COURT: 18 You mean the -- not the riot i ng count. 19 20 The MS. KEIL: It's -- yeah. It's the urging or inciting. 21 THE COURT: Inciting count. 22 MR. BASET: It's inciting a riot. 23 And, i n her decision, she laid out a standard 24 for what the intent would be to maintain that sort of a 25 charge mov ing forward. 8 That's a more specific standard that we've 1 2 received from the Government that we didn't quite receive 3 in the first case. 4 informed our decision moving forward as far as how we can 5 prosecute future cases. And so that's knowing that, that's The second is that the Government's focus in 6 7 this case has always been about the conduct and the 8 participation in a black block between the hours of 10 and 9 11 in the morning on January 20th, 10 11 2017 in Washington, D.C. And to that end, the Government intended and has 12 used a single v ideo from a planning meeting that took 13 place in Washington, D.C. on June 8th -- or rather 14 January 8th of 2017. 15 Now , that video, of course, was recorded 16 surreptitiously by a group called Project Veritas, and we 17 understand that that was controversial. 18 That being said, we didn't have any reason to 19 doubt the reliability, the authenticity, the accuracy of 20 what was depicted on that video, which we believed was 21 evidence, and still believe, to this day, is evidence of 22 the planning of this event. 23 I n looking at the video , we had no reason to 24 deny or doubt the reliability. And that video was 25 actually determined to be admissible evidence, reliably 9 1 admissible evidence, at least for purposes of tr i al. 2 But that being said, as we've been able to 3 observe in the ongoing trial, the issue of Veritas has 4 resulted in, what we believe to be a distraction from the 5 conduct of the defendants. Now, it's understandable why, as a trial tactic, 6 7 that's happen i ng. But what it's done, in effect, is we 8 are now not focused as much on the conduct of the 9 defendants; it's now become more of a focus and an inquiry 10 on what the moti vations and tactics were of this 11 particular group. 12 view, does not undercut the evidence that we had in this 13 case. Which, from the Government's point of 14 But that being said, the Government's decision 15 is based on an attempt to refocus the ongoing trials and 16 the trials moving forward on specifically the conduct of 17 the defendants. 18 And so from this point, we're not intending to 19 use any sort of video, any sort of statements elicited 20 from any videos used by Project Veritas. 21 THE COURT: In the non-jury matters? 22 MR. BASET: Correct. 23 THE COURT; Okay. So I appreciate you coming in 24 and announcing, because it clarifies what the Court has to 25 do. But there is an objection to the motion to dismiss 10 1 without prejudice, so I will be hear ing and deciding on 2 sanctions with regard to the Brady violation. 3 4 Do you want to just take a pass to consult with your off ice about whether or not you wish to 5 MR . BASET: 6 I would, if I may have just about ten minutes 7 We're prepared to proceed. just to consult -- 8 THE COURT: Yes. 9 MR . BASET: -- and make one final consultation? 10 THE COURT: No. 11 MR . BASET: But we're prepared to proceed today No. That's fine. 12 with the arguments about Brady and why they should be 13 dismissed without prejudice. 14 15 16 THE COURT: Okay. So how do you wish to proceed with regard to the defense? MR. CLARKE: After the ten minutes we can 17 proceed on the Brady violations. 18 up some things for everyone. 19 THE COURT: 20 Ten minutes. 21 MR. BASET: Thank you. 22 THE COURT: Well, can I ask the Government why 23 24 25 Okay. I think that will clear Thank you. you're seeking dismissal without prejudice? MR. BASET: Well, we believe because the issue that's been raised, at least the issue of Brady, has 11 1 emanated from the Government's use or obtaining videos 2 from Veritas. 3 not using these videos, that, as far as the trials moving 4 forward, they're not affected to the extent the defense 5 argues -THE COURT: 6 7 trials moving forward. 8 9 We believe that moving forward, if we're MR. BASET: No. I 'm not talking about the I 'm talking about -So as far as these trials are concerned, the sanction that they've always sought was 10 dismissal. 11 the -- They've received that sanction. 12 THE COURT: 13 I 'm asking you why you're seeking dismissal 14 Okay. We've made I just want to refocus you . without prejudice. 15 Do you have an intent to refile charges? 16 MR. BASET: 17 that. 18 now. At this stage, I can't speak to I know that that's not part of the discussion right 19 THE COURT: Okay. Could you discuss that, and 20 if you 're not intending to go forward at a later time, 21 could you reconsider the nature of your motion to 22 suppress? 23 MR . BASET: Understood. 24 THE COURT: Do you see what I'm saying? 25 MR. BASET: Yes. 12 1 THE COURT: I n other words -- 2 MR. BASET: And to be frank, I don't know if 3 that's a determination that's been made or can be made at 4 this point, but I'll certainly inquire. 5 6 THE COURT: But the point is , if your motion to dismiss is to dismiss the case and not go forward -- 7 MR . BASET: Sure. 8 THE COURT: -- then we're going to go through, 9 10 with many different counsel, the issues that I have to decide. 11 MR. BASET: Understood. 12 THE COURT: We may still have to go through it 13 with other counsel on the people you're proceeding with, 14 but it will be three defense counsel as opposed to ten. 15 MR . BASET: Understood. 16 THE COURT: Thank you. 17 Ten minutes, please. (A brief recess was taken.) THE COURT: 18 19 Thank you. We're back in session in the matters. 20 I'll hear from the Government. 21 MR . BASET: I did have an opportunity to 22 inquire. 23 ask for this to be dismissed without prejudice. 24 25 And it's the Government's position that we would While we don't necessarily intend to re-bring these cases, if there was somebody who, for example , came 13 1 in and gave us ev i dence, addi t i onal evi dence, i t would 2 behoov e us not to be able to at least consider the 3 evidence. 4 THE COURT: Okay. 5 MR. BASET: So we do think that this could be 6 then decided if the Government did re-bring it at that 7 juncture. 8 dismissed, it doesn't THE COURT: 9 10 Because, at this point where the cases are Well, they're not dismi ssed. There's a motion to dismiss. 11 MR. BASET: I understand. 12 THE COURT: So the motion to dismiss hasn't been 13 granted, and they're objecting to it, so I'll have to 14 hear -- 15 16 MR. BASET: We're fully prepared to litigate any further issues. 17 THE COURT: 18 Who wants to argue? 19 MR. CLARKE: 20 21 22 23 Okay. Thank you. Andrew Clarke, counsel for Dylan Petrolhilos. I assume we're operating under the assumption that the case is going to be dismissed? THE COURT: I think we're only operating -- I 24 mean, unless the only argument I'm going to be 25 entertaining is whether the cases should be dismissed 14 1 without prejudice for the violation, correct? 2 MR. BASET: Yes. 3 THE COURT: Is that the Government's view? 4 MR. BASET: Yes. 5 THE COURT: Thank you. 6 MR. CLARKE: 7 So the Government -- is the Gove rnment conceding 8 that there was another Brady violation or ... 9 10 THE COURT: I don't know what the Government's MR . BASET: The Government's not conceding a conceding. 11 12 Another clarification. Brady violation. 13 THE COURT: 14 MR. CLARKE: 15 So the Government has, again, violated its Brady Okay. Thank you. Thank you. Okay. 16 obligations on the May 30th email. 17 four factors -- or sent to the Court four different 18 factors in which -- 19 20 21 MR . BASET: Court. The Government used If I could just inquire with the I apologize for interrupting. There was the -- in the Government's point of 22 mind, there are two distinct Brady issues. 23 that was raised with respect to the clipping of the 24 planning meeting video . 25 THE COURT: One was -- one Correct. 15 MR . BASET: 1 2 And that's something that the Government has responded to on the papers just last night. 3 And then there's the other Brady issue that was 4 raised by counsel, at least in a filing last night, with 5 respect to additional Veritas videos . 6 So, in my mind, at least from the Government's 7 point of view , these are two distinct issues. 8 terms of the analysis, I think it really delves or is 9 centered on that first Brady issue. 10 11 THE COURT: Right. And in And, in the Court's view, is they're not distinct. 12 MR. BASET: Okay. 13 THE COURT: Thank you. 14 MR. CLARKE: I agree with the Court's view. 15 I t's cumulative, and it all goes to why this case should 16 be dismissed with prejudice. 17 On the May 30th email to the Court, the 18 Government laid out four different factors in which they 19 used to determine whether or not to disclose evidence to 20 the defense. 21 22 Court's indulgence while I pull up those factors. 23 The first factor was: 24 information about the ACB? 25 block. Did the recording contain Which is the anti-capitalist 16 The second was: 1 2 Di d the recording contai n statements by or conduct of defendants in this case? The third was: 3 Was there anything on the record 4 that could constitute e v idence of a defendant's knowledge, 5 intent, purpose for the charged conduct? 6 recording contain Brady information for the charged 7 conduct? 8 9 10 11 And did the And in that email, they also admitted to not disclosing 69 recordings from Project Veritas. 66 videos, and three audio clips. My motion focuses on 35 of those videos that 12 were from an action camp taken by Project Veritas to which 13 a Government -- an undercover Government agent was 14 present, Officer Adelmeyer. 15 The Government planned to introduce evidence 16 that violence was discussed at that action camp, but, 17 again, i n its email, they discuss that the group was -- 18 that the recordings from January 14th and 15th appear 19 to -- they appear to have a workshop teaching -- how to 20 de-escalate conflict when you observe someone being 21 targeted or harassed based on their race or religion. 22 That's in direct conflict with what the 23 Government -- the Government's witness is going to be 24 testifying about. 25 When asked, on April 6th during a trial 17 1 readiness hearing, about the v i deos from this action camp, 2 the Government denied any of those videos existed. 3 know that this is wholly untrue. 4 Brady violation. 5 6 We now I think that's a clear The reason why the case should be dismissed with prejudice is because now we have cumulative actions. 7 I f we start from the beginning and we start from 8 the fact that, again, we would not have had any of this 9 evidence had our trial group not f i led a mot i on to compel 10 the raw v ideo from the planning meeting, to which we 11 discovered that there were three additional minutes at the 12 end of the video, to which the Government never alerted us 13 to, which has evidence that exonerates our clients. 14 the operative says "I don't think that they know 15 anything." And 16 That led, again, to three additional videos from 17 Project Veritas being disclosed by the Government totaling 18 a little bit o ver 50 minutes. 19 That then led to a meeting with another trial 20 group with the Project Veritas operative where he stated 21 that he "didn't think anyone was planning violence, 22 especially" -- and he also stated that he didn't think 23 that Dylan Petrolhilos, the person who was in front o f the 24 group, was planning any violence. 25 that he took other v ideos, and other Project Veritas And he also disclosed 18 1 operatives took other videos before January 20th. 2 This then led to the May 30th email, which 3 counsel -- which chambers received, in which they 4 disclosed that there's now 69 more recordings from Project 5 Ver itas that the Government seemingly has had since 6 January of 2017, or around January of 2017, and to which 7 now on June -- or sorry, May 31st of 2018 or May 30th of 8 2018, we are now being disclosed. 9 Again, Your Honor, I think that i t's very clear 10 that there's a Brady vio lation here. 11 witness is going to testify that the group planned to be 12 confrontational but non-violent. 13 from that action camp. 14 The Government's That's his observation The Government's attorney was asked whether or 15 not videos existed from that action camp. 16 Government's attorney said there were not any videos. 17 The Now, on May 30th, they're saying that there are 18 videos . 19 opposition to that could possibly be. 20 I just don't know what the Government's Now, for the prejudice argument, it's now too 21 late for us to go back and investigate any of those 22 circumstances. 23 January of 2017. 24 Veritas 25 operative, they stated that they didn't know anything. These circumstances happened back in During our meeting with the Project during the meeting with the Project Ve ritas 19 1 Seemingly so because this was over a year and -- a year 2 and five months ago. 3 They also stated -- the Government's witness, 4 Officer Adelmeyer, also stated that he doesn't remember 5 some things. 6 doesn't remember some things. 7 length of time that's passed. The Government's detective says that he That's because of the 8 Had we known about all of this evidence f rom the 9 beginning, all of the defense counsel would have been able 10 to at least investigate some of those circumstances 11 earlier. 12 13 And again, I rest on Vaughan, because this case is actually worse than Vaughan, because i n Vaughan -- 14 THE COURT: I know. 16 MR. CLARKE: Okay. 17 THE COURT: I 'm pretty familiar with that case. 18 MR. CLARKE: I just want to make it clear the 15 19 20 21 22 I was the trial judge on Vaughan. reasons why this case is worse than Vaughan. It's worse than Vaughan because of the fact that there's 69 different recordings that were not disclosed. We had to file a motion to even get those 23 disclosures from the Government, and we're asking that the 24 case be dismissed with prejudice. 25 remedy at this point for the defendants in the June 4th I think that 's the only 20 1 trial group. 2 THE COURT: Thank you . 3 MR . SWEET: Your Honor, Mark Sweet on behalf of 4 Mr. Litchfield. 5 I agree wi th everything that Mr . Clarke has 6 said. 7 also in the motion last night. 8 9 I just wanted to add one additional point. It was The Court had previously found a violation of Brady and Rule 16, but we believe there's actually a third 10 violation now, and that is a violation of the Court 's 11 order to compe l the Government to produce the entirety of 12 whatever is in the Government's possession to the defense. 13 This was in the April 6th hearing that we had i n response 14 to our motion to compel. 15 At the time, we went back and forth, 16 times, with the Government about what existed. 17 accepted the representations from the Government as to 18 what video evidence it had from Project Veritas . 19 think if there was any confusion about the scope of the 20 Court's order -- and I don't think there should be, 21 because I think it's clear on the face. 22 several The Court And I But if there's any confusion at all at that time 23 by the Government as to whether i t applied to just the 24 January 8th meeting or the entirety of all the Project 25 Veritas videos that it had, i t was incumbent upon the 21 1 Government to disclose, at that time, that it had many 2 other videos from Project Veritas; that it had determined 3 these videos to be not relevant; and it was choosing not 4 to produce those; and that those would be beyond the 5 Court's order. 6 And they never spoke up; they never said 7 anything to the Court; they never said anything to the 8 defense; and I think it not only violated the Court's 9 order, but it missed many opportunities to clarify the 10 record for everybody. And so it's because of that that 11 we 're in this situation right on the eve of trial. 12 THE COURT: 13 Before you can make -- can you give 14 clarification? 15 FBI? Have you had further discussions with the 16 MS . KEIL: 17 THE COURT: 18 Thank you. I have, Your Honor. Okay. Could you make representations about that? 19 MS . KEIL: 20 So when I spoke with them yesterday, the Yes, Your Honor. 21 questions 22 me yesterday. 23 Attorney's Office know that there had been an interaction 24 between the FBI and Project Veritas. 25 I'll start with the questions the Court asked Which was: First, when did the U.S. The Government did know that in February of 22 1 2017. 2 action that was also being undertaken. 3 a criminal case about that, a separate case. 4 Government did receive, at that time, the 302, which the 5 Government provided yesterday. 6 They knew that as it related to the deplorable There was actually And the That was provided in response to what -- the FBI 7 information , what videos they may have had about the day 8 of the event of January 20th. 9 video, the Government real i zed there was a video of a Then the Project Veritas 10 planning meeting and reached out to Project Veritas to get 11 that informat i on . 12 The first time defense counsel, I believe, was 13 actually notified of who made that video was in November 14 during a pretrial hearing for the November defendants. 15 There was no agreement by the Government to hide any 16 the fact that Project Veritas and the FBI had met. 17 of I spoke with the agent who met wi th the Project 18 Veritas personnel. They were contacted, initially, by the 19 attorney for Project Veritas through their public line. 20 Basically, as the FBI understood it -- and I don't want to 21 speak for them, but it's my understanding of what they 22 told me is that they received this information, that 23 Project Veritas had been doing their own investigation 24 into leftist organizations, f rom thei r perspective, and, 25 at some point, they came across material that they 23 1 determined somebody might be getting hurt and they needed 2 to tell the FBI this . 3 So they reached through their public line, they 4 met with an agent. 5 one minute, one was two minutes. 6 chaining Metro trains together during the inauguration to 7 cause a d i sturbance. 8 THE COURT: 9 They both related to Can I ask you -- and I don't mean to interrupt. 10 11 They had sent them two clips, one was If you can -- the memo indicates -- 302 indicates there was a meeting on January 13th. 12 MS. KEIL: 13 THE COURT: Yes. The memo indicates it's posted on 14 January 27th. And it appears a lot of the discussion 15 about meetings that occurred between the 13th and the 20th 16 are in the past tense, as if they 're reporting on events 17 that had occurred. 18 Do you -- 19 MS . KEIL: They informed me they only met with 20 them one time, and so my understanding was that was on the 21 13th, but that does read 22 THE COURT: 23 MS . KE IL : Was there any oral update or ... I asked them after that one meeting 24 that they had -- they didn't bring any videos to the 25 meeting. They didn't bring anything to the meeting. The 24 1 only videos they ever rece i ved, like I said, was that one 2 two-minute v ideo. 3 videos or any of the things that the U.S. Attorney's 4 Off ice had. 5 They didn't even receive the planning That they -- that after that, they never asked 6 them, please keep us updated, let us know if you find 7 anyth i ng. 8 interaction with them. 9 they d i d meet wi th those indivi duals, that there were And, in fact, they nev er had any more And that was the extent. And that 10 three indi v iduals from Project Veritas who reported on the 11 meetings that they had attended on January 8th. 12 THE COURT: So when there's a discussion in the 13 302 about future -- is that a discussion about future 14 e vents or past events? 15 MS. KE I L: That's what's unclear to me. Right. It appears -- it does appear 16 that they met with them on the 13th. 17 there's -- i t says that they're go i ng to be host i ng these 18 things, like, on the 14th and the 1 6th. 19 20 THE COURT: But it says that Did you look at the tense of the verbs and the later descriptions of those events? 21 MS. KEIL: 22 I mean, I personally spoke with the agent who 23 Right. I see that. wrote this yesterday. 24 THE COURT: 25 MS. KEIL: Okay. So he told me he's met with them one 25 1 time. 2 THE COURT: 3 MS. KEIL: Okay. So I don't know why it is written 4 this way, but I -- the person who signed this is the 5 person who made those representations to me. 6 THE COURT: 7 MS. KE I L: Thank you. And so that was what their -- the 8 FBI's perspective was that this was a concerned citizen 9 group, heard about upcoming cri mi nal act i v i ty, so they 10 spoke with them, and that was the information they 11 received. 12 13 14 Those two clips relating to the train-chaining situation were not disclosed to us, from the FBI to us. We did -- and I believe that's discussed 15 somewhere in the memo, that we did have an audio clip that 16 also discussed the train, which is actually the same one 17 that the FBI had had. 18 So that was their -- there was no intention to 19 not disclose anything purposefully to defense from the 20 Government. 21 the FBI's scope of their knowledge of what Project Veritas 22 was doing, is that it was their understanding that they 23 were a right organization trying to infiltrate a left 24 organization for their own purposes and came across what 25 they believed might be actions that would cause harm to And that was the knowledge of the FBI's -- 26 1 people, and that's why they sent 2 THE COURT: Thank you. 3 MR . BASET: With respect to why these cases 4 should not be dismissed with prejudice, I think that that 5 would be the ul timate sanction, one that even is not 6 supported by the facts. 7 I think, for one, at the onset of this case, 8 it's my understanding that what the Government was 9 receiving was server informatio n, Facebook information and 10 other types of private information from citizens. 11 The concern that the Court had expressed was the 12 privacy of these indi viduals , and that the Government 13 should engage in a Rule 16 analysis, an inquiry into the 14 scope of all this evidence to whittle it down to what is 15 relevant. 16 17 And the Government has tried, to the best of its ability, to -- 18 19 THE COURT: That's with regard to the cell phone communications? 20 MR. BASET: Well, that's the prism through 21 which -- and it was specific when it came up with regard 22 to cell phone communications, and I believe DreamHost, and 23 our subpoena, in that regard, that because there was so 24 much information, a lot of it was private, and we needed 25 to focus. Because the -27 THE COURT: No. 3 MR. BASET: Well, that was -- 4 THE COURT: That was the Government attempting 1 2 The DreamHost has nothing to do with that. 5 to seek information of other individuals. 6 about your Brady obligation. 7 8 9 MR. BASET: Understood. We're talking But that required an analysis under Rule 16 of what was relevant. And as far as what was relevant, the v i deos that 10 have been discussed that Veritas has taken, just to 11 provide some context, they infiltrated a lot of 12 conversations, a lot of meetings, from meetings in 13 New York to Chicago to D.C. 14 only one thing in common, that they seemed to be planning 15 of various legal protests in response to -- or in 16 preparation of the inauguration. 17 And all of these meetings had Now, the Government's focus on this case has not 18 been e very single protest that's planned for the 19 inauguration, but rather specifically, the black block 20 that moved between 10 and 11 a.m. on Logan Circle, and 21 those individuals involved in that black-block activity. 22 But, conversations that people are having about, 23 for example, de-escalation tactics, if you were to witness 24 a hate crime, which, I believe, is something that's 25 captured on these v ideos. That's an example. Or people 28 1 explaining their own political views or their political 2 philosophy about what's happening in the world. 3 These are conversations that -- a lot of them 4 were private conversations that the person who created 5 this video was having with individuals that had nothing to 6 do with the conduct at issue . 7 And so, that was the prism through which we 8 evaluated all the evidence that we rece ived . Because the 9 investigation that was done by agencies, whether it was 10 Secret Service, whether it was our own office, whether it 11 was MPD , there were a lot of investigations, and there was 12 a lot of protests that were planned that day. 13 So, we received a lot of evidence that had 14 nothing to do with the anti-capitalist black-block march, 15 but rather, other events that were planned. 16 17 Now, counsel talked specifically about action camp. 18 And I want to be clear about a couple things. The first is that they represented, or their 19 assertion, is that we were provided a video of an action 20 camp meeting that Officer Adelmeyer attended. 21 true . 22 of any meeting -- an action camp meeting, that is -- that 23 Adelmeyer attended. 24 25 That's not We were never provided any sort of video by Veritas To be clear, though, when those action camps were planned at American University, that was a week-long 29 1 event with numerous types of sessions and meet i ngs and 2 plannings. 3 And so Adelmeyer, as our understanding, went to 4 some of that. 5 of view, that Veritas went to some of those meetings. 6 we don't have any reason to believe we have no -- to 7 bel i eve that Adelmeyer's attendance at that action camp 8 was ever recorded by anyone, let alone from Veritas. 9 It seems to be, from the Government's point But The second assumpt i on or assertion that's made 10 is that we' ve used e v idence from action camps. 11 accurate. 12 attended an action camp, there's nothing of substance that 13 he testified to that went to the conduct at issue. 14 the fact that he attended. 15 thing. 16 That's not While Officer Adelmeyer has testified that he Just So that would be the first The additional aspect of this is that, at the 17 end of the day, the Government's concern was also twofold. 18 One was relevance; but two was also the privacy of the 19 number of citizens that Project Veritas had captured on 20 video talking about their own politics, talking about 21 things that have absolute no relevance to this case. 22 And, in fact, Your Honor had requested that we 23 provided a summary of the v ideos that were not released. 24 And we prov ided those summaries. 25 summaries, at least from what we gather, there's no And within those 30 1 2 relevance. And so while the defense can claim that they're 3 entitled to these videos, it would be akin to requiring 4 the Government then to turn over, for example, all body 5 cam from every type of arrest that was made i n a two-block 6 square mile, even though those other arrests had nothing 7 to do with the crime at hand. 8 9 And I think that was, at least the Government's way of looking at it. Especi ally i n l i ght of some of 10 or at least the prior rulings granted. 11 agree with you that that was with respect to different 12 matters with respect to DreamHost or Facebook and our sort 13 of processing of that evidence. 14 And I readily But it's through that same lens that we also 15 looked at this evidence, too. 16 us to believe that that lens should have been different. 17 I t's the same lens that we apply to all other types of 18 criminal prosecutions. 19 And there was no reason for So to be sure, there were a lot of things that 20 were captured by Veritas. 21 in this case , and we still have not heard anything that 22 the defense is claiming that is Brady in the sense of 23 exculpatory information . 24 25 We gave them what is relevant Granted, I understand that they would like to investigate these things . And just like they wanted to 31 1 investigate the clipping of the video that occurred that 2 was the basis of the first Brady argument. 3 at least learned from our investigation of that case, that 4 statement had no relevance, at least in our case. 5 think that the same sort of analysis would apply here. 6 7 But as we've, And I And I also think, too, because the Government has dismissed the case -- 8 THE COURT: No. It's moved to dismiss the case. 9 MR . BASET: Has moved to dismiss the case, that 10 that is the ultimate sanction here. 11 proceeding against them. 12 The cases are not And I think absent a showing of some real bad 13 faith on the part of the Government where we were 14 intentionally trying to hide relevant probative evidence 15 that would exculpate their clients, I think that 16 dismissing this case with prejudice would be far too 17 extreme of a sanction. 18 THE COURT: Could you explain your office's 19 representation to this Court that left a clear impression 20 that there was only one video received by Detective 21 Pemberton? 22 MR. BASET: Now -- 23 THE COURT: That was made personally to this MR. BASET: I understand. 24 25 Court. 32 1 To be sure, I was not there making the 2 representations. But what I can say is that it was our 3 understanding that that discussion was based off of that 4 specific planning meeting. THE COURT: 5 Because your office represented 6 there was only one v ideo. 7 represented. 8 9 That's what your office MR. BASET: I can't speak to that at this THE COURT: So you're not providing any argument moment. 10 11 on behalf of your off ice as to why those representations 12 were made to the Court? 13 MR. BASET: And I had a brief opportunity to 14 review at least parts of the transcript that were attached 15 to the motion that was prov ided last night. 16 My quick reading of that is, at least -- and 17 again, I can't speak for Ms. Kerkhoff, who was standing in 18 on that day, but my understanding is that the inquiry was 19 focused on the planning meeting video. 20 THE COURT: There were That's because your office 21 represented that was the only video turned over to 22 Detective Pemberton. 23 v i deo. 24 25 MR. BASET: That's why it was limited to that I can't speak to that, Your Honor, at this time. 33 1 2 3 4 I f I could take a moment, i f there's a specific inquiry that's dispositive on this issue -THE COURT: No. If you weren't prepared to answer it now, I'm not going to give you time. 5 MR. BASET: I was not. 6 THE COURT: Anything else? 7 MR. BASET: Brief indulgence. 8 MS. KEIL: 9 Your Honor, may I just add, again, we were not here when -- whatever representat io n the Court is 10 talking about. 11 and I understand that the Court -- 12 13 I'm not sure exactly what that one was, THE COURT: No. I have a very clear recollection of that representation. 14 MS. KEIL: I know. 15 I will say that, in conversations, it has always 16 been, I believe, the understanding that it was limited to 17 January 8th. 18 that comment, perhaps, had been made. 19 20 That i s my understanding is that was why THE COURT: Again , this becomes circular. That's because your office represented that. 21 MR . BASET: 22 The Government did disclose Veritas videos that 23 And if I could add just one thing. were not from January 8th. 24 THE COURT: I agree with that . 25 MR. BASET: So we -- we didn't represent that 34 1 this was the only video that we had. 2 Veritas videos . There were other 3 THE COURT: Okay. Anything else? 4 MR. BASET: Nothing additional. 5 THE COURT: Anything? 6 MR. CLARKE: Your Honor, the Government has 7 provided us with co-counsel's statements. 8 give you 9 brief. 10 11 12 co-conspirator statements. I just want to I'm going to be Thank you. This is Andrew Clarke , counsel for Dylan Petro lhilos. In that chart -- and I can hand this up to the 13 Court -- the UC attended "action camp at American 14 University on January 14th, 2017." 15 clearer that that's what he attended. 16 That 's all I have. It can't be any more And the Government is 17 that's all I have, Your Honor. 18 THE COURT: 19 Well, the Court did find previously a Brady Okay. Thank you. 20 v iolation, but what the Court indicated, at that time, was 21 the defense had a right to that i nformat io n so they could 22 conduct an appropriate investigation . 23 investigation , additional facts can be revealed. 24 that's what happened with regard to the Court's ordering 25 of the disclosure and the finding of the Brady violation . And as with any And 35 1 I don't know what the Government's 2 explanation 3 why it did not appraise the Court of the existence of 4 these additional v ideos. 5 and they have offered no explanation as to And the Court's memory and the reading of the 6 transcript is, the Government left the Court and the 7 parties wi th the dist i nct impression that there were no 8 additional videos other than what had been previously 9 disclosed. And we come to f i nd out, there are addi tional 10 v ideos, in the Court's mind, that would be relevant to the 11 conduct of any investigation of a competent defense 12 counsel. 13 With regard to the alleged videos of the action 14 camps, the defendant could be present or not present, each 15 of wh i ch would be relevant to any defendant's defense o f 16 conspiracy. 17 position to make them whole. 18 And it's hard to put the defense in a I do think it's a serious violation. It was 19 intentional in the sense that the Government made 20 intentional decisions that it made not to disclose. 21 I'm not prepared to find that it was necessarily 22 malevolent, but counsel before me is not able to make 23 representat i ons, so I can't make a complete decision with 24 regard to that. 25 explainable to the Court, the representations that were But, to me, it was, at this point, not 36 1 made, particularly in light of Vaughan and the d i rections 2 of the Court of Appeals. 3 I agree with the Government's submission that 4 dismissal is a very severe sanction for the Government. 5 In balancing all the factors -- and this is with regard to 6 the remaining defendants as well -- I'm going to dismiss, 7 with prejudice, the conspiracy -- 8 Excuse me. 9 A DEFENDANT: 10 THE COURT: Please, don't react. I 'm sorry. Dismiss, with prejudice, the 11 conspiracy charge , and not allow the Government to proceed 12 on a Pinkerton theory. 13 That will be the extent of the Court's sanctions 14 with regard to the Government. 15 proceed on any conspiracy to riot or Pinkerton theory with 16 regard to liability on behalf of any defendant. 17 They will not be able to I 'm going to deny the motion to dismi ss, with 18 prejudice, the remaining counts. 19 the Government's offer to dismiss without prejudice, and 20 the Court will grant the motion to dismiss without 21 prejudice. 22 I do take into account Mr. Hessler, Mr. Litchfield, Mr. Meltzer, 23 Mr. Petrolhilos , Mr. Retherford and Ms . Unger, as well as 24 Ms . Carter, you 're free to go. 25 MR. BASET: Your Honor, if I may ask a point of 37 1 inquiry. 2 THE COURT: Uh-huh. 3 MR . BASET: For clarification, I understand that 4 the Government is not allowed to proceed on the conspiracy 5 to riot? 6 THE COURT: Correct. 7 MR. BASET: The Government's evidence and theory 8 in that indictment is that the conspiracy to riot begins 9 at Logan Circle -- 10 THE COURT: Right. 11 MR . BASET: -- once the movement occurs but does 12 13 not include any sort of -THE COURT: But what I'm saying is: The 14 evidence concerning conspiracy and the conspiracy charge, 15 because the Government did not disclose these videos and 16 allow proper investigation, I'm sanctioning the Government 17 from proceeding on that count or on that theory. 18 You still have aiding and abetting. I'm not But the conspiracy count and Pink erton 19 precluding that. 20 liability flowing from that, the Government is prohibited 21 from going forward on. 22 MR. BASET: Thank you. 23 THE COURT: Thank you. 24 SIMULTANEOUS SPEAKERS: 25 THE COURT: Thank you, Your Honor. So who is left? Or do you need time 38 1 now, or do you just want me to certify your trial to the 2 trial judge? MS . KEIL: 3 4 I -- oh, I don't know if other counsel 5 THE COURT: 6 MS. KEIL: No, I'm asking the Government. Yes, Your Honor. For the remaining 7 three defendants, I think we would be prepared to -- I 8 don't know when they would be prepared to start, but 9 Monday would be our preference, if the Court is willing to 10 give us that. Because Mr. Qureshi is still in trial. 11 THE COURT: 12 So who's left? 13 MS . WEATHERS: 14 Oh, I see. Okay. Ms. Weathers is left? Yes, I 'm here. I'm not left, Your Honor. No. No . No. You 've dismissed my client. 15 Sharon Weathers for Clay Retherford. 16 I just have one question I would like to pose to 17 the Court before my client leaves. 18 the case has been dismissed, partially with prejudice, 19 partially without prejudice, I hereby make a demand upon 20 the Government for the return of my client's personal 21 property. 22 THE COURT: 23 Government. 24 appropriate decision. 25 Okay. And that is: Since You can discuss that with the I 'm sure they're -- they will make whatever MS. WEATHERS: We don't have to do it here. Thank you. 39 1 THE COURT: Who are the defendants left? 2 MR. LINEHAN: Mr . Vasquez. 3 MS . LEGRAND: Mr . Valencia. 4 MR. BRUCKHEIM: And Michael Bruckheim and 5 Jonathan Fellner on behalf of 6 THE COURT: Okay. There's a request from the 7 Government to proceed on Mo nday. 8 MS . LEGRAND: 9 long do you think we'll need? MS . KEIL: 10 11 THE COURT: 13 MS . KEIL: Days, as opposed to weeks. Yeah. Two days, perhaps, for the Government's evidence, I think should be -- 15 16 I mean, since it's a bench trial, I'm hoping -- 12 14 Just because my client's here, how MS. LEGRAND: And just to be clear now, we would be proceeding on Counts 1 -- 17 MR . LINEHAN: 2, 4 and 5. 18 MS . LEGRAND: Not the conspiracy counts. 19 4 and 5? 20 MS. KEIL: 21 THE COURT: 22 MS. LEGRAN D: 23 Correct. Yes . Okay. And -- sorry. You proposed Monday? 24 25 So 2, MS . KEIL: Yes. Today was going to be a voir dire day 40 1 THE COURT: 2 MS . KEIL: 3 Jury selection, yes. -- so I feel, if that's okay with the Court, that -- 4 THE COURT: 5 prepared with witnesses today. MS. KEIL: 6 7 10 The parties shouldn't ha ve been Right. So Monday we would be prepared to start with witnesses and openings. 8 9 No. MS . LEGRAND: Do you think we could be done next week? MS . KEIL: I hope, depending on counsels' 11 quest i ons , that we would be done within two to three days 12 with the Government's case . 13 14 MS . LEGRAND: I 'm just asking -- I'd l ike to -- that probably makes sense. 15 Everybody else? 16 MR. FRAGALE: I t makes sense. 17 MR . LINEHAN: We'r e fine. 18 MS . LEGRAND: Okay. 19 20 My client has to travel and stay in town. THE COURT: And if this were a jury trial, we 21 wouldn ' t have been starting until Mo nday anyways with 22 witnesses, so I think that's a fair resolution. 23 Thank you. 24 MS . KEIL: 25 Is there a courtroom we should report to on Monday? 41 1 THE COURT: Judge Dayson. 2 MS . KEIL: 3 MR. LINEHAN: Thank you, Your Honor. 4 MR. FRAGALE: Do they need to sign? 5 THE DEPUTY CLERK: 6 Mr. Glaser, Mr. Valencia and Mr. Vasquez, you Okay. Thank you , Your Honor. Yes. 7 each will be signing notice to return to court on Monday , 8 which is June 4th, at -- in Courtroom 203 before 9 Judge Dayson. If you fail to appear at that date and 10 time, you'll subject yourself to an additional $12,500 11 fine, five five years in jail or both. 12 Do you understand the warning? 13 DEFENDANT VALENCIA : 14 DEFENDANT VASQUEZ: 15 DEFENDANT GLASER: 16 17 Yes. Yes. Yes . (Court and clerk confer.) THE COURT: Can I remind the Government with 18 regard to motions to return property. 19 we had before is notifying other defendants to make sure 20 that they are not requesting their property for evidence 21 in their trial. 22 23 MS. KEIL: Yes. I think the process I 'm sure -- if that process has been done before, I will speak with the -- 24 THE COURT: 25 with regard to that. I wanted to remind the Government 42 1 MS . KE I L: 2 MS. LEGRAND: 3 Okay. Yes , Your Honor. Can I make a request to save resources? 4 If there's any chance you could call the exhibit 5 list now, that -- I know that might be a lot of work on 6 your end. 7 understand If you can, that would be great, but I 8 MS . KEIL: 9 MS . LEGRAND: Yeah, we'll talk. 10 MS . KEIL: about what we're doing on Monday. 11 MS . LEGRAND: Okay. 12 13 Well, we can all talk Totally fine. Thank you very much. (Proceedings adjourned at 10:50 a.m.) 14 15 16 17 18 19 20 21 22 23 24 25 43 1 CERTIFICATE OF REPORTER 2 3 I, Stephanie M. Austin, RPR, CRR, an Official 4 Court Reporter for the Superior Court of the District of 5 Columbia, do hereby certify that I reported, by machine 6 shorthand, in my official capacity, the proceedings had 7 and testimony adduced upon the motions in the case of the 8 UNITED STATES OF AMERICA versus ARTURO VASQUEZ , Criminal 9 Action Number 2017 CF2 1369; UNITED STATES OF AMER I CA 10 versus PHILLIP GLASER, Criminal Action Number 2017 CF2 11 13 68 ; UNITED STATES OF AMERICA versus CHRISTIAN VALENCIA, 12 Criminal Action Number 2017 CF2 1203; and UNITED STATES OF 13 AMERICA versus MOLLY CARTER, Criminal Action Number 2017 14 CF2 1 380 ; UNITED STATES OF AMERICA versus DANIEL MELTZER, 15 Criminal Action Number 2017 CF2 1176; UNITED STATES OF 16 AMERICA versus CALY RETHERFORD, Criminal Action Number 17 2017 CF2 1378; UNITED STATES OF AMER I CA versus CHR I STOPHER 18 LITCHFIELD, Criminal Action Number 2017 CF2 1235; UNITED 19 STATES OF AMERICA versus CAROLINE UNGER, Criminal Action 20 Number 2017 CF2 1 355 ; UNITED STATES OF AMERICA versus 21 MATTHEW HESSLER, Criminal Action Number 2017 CF2 7212; and 22 UNITED STATES OF AMERICA versus DYLAN PETROLH I LOS, 23 Criminal Action Number 2017 CF2 7216, in said court on the 24 31st day of May , 2018. 25 44 1 I further certify that the foregoing 44 pages 2 constitute the official transcript of said proceedings, as 3 taken from my machine shorthand notes, together with the 4 backup tape of said proceedings to the best of my ability. 5 6 In witness whereof, I have hereto subscribed my name, this 31st day of May, 2018. 7 8 9 10 Stephanie M. Austin, RPR, CRR Official Court Reporter 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45