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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
DANIEL RUSH,
)
)
Defendant.
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___________________________________ )

Criminal No: CR 15-00454 - HSG

DEFENDANT’S STATUS REPORT AND REQUESTS FOR DECLARATION OF
COMPLEX CASE STATUS, FOR VACATING PRESENT TRIAL DATE AND FOR
ESTABLISHING A BRIEFING SCHEDULE
FOR DISPOSITIVE AND NON-DISPOSITIVE MOTIONS

I. INTRODUCTION.
A. Overview.
Defendant is submitting the instant pleading to present further acquaint the Court with the
wide range of legal and factual issues that must be addressed by the parties and Court before this
case will be ready for trial. Undersigned counsel have been making a sincere effort to work
through the voluminous discovery provided by the government to date, despite the fact that it has
been presented in a form that requires a highly labor-intensive effort just to open, read and label
the literally thousands of files and hundreds of thousands of pages delivered to them by the
government.
A government investigation into “corruption” by “state and local public officials” (codenamed “Operation Limelight”) was initiated on December 12, 2011. The investigation quickly

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came to focus on the relationship between medical marijuana advocates and promoters, and
various public officials. Such focus coincided with the stirrings of a campaign against medical
marijuana and its providers by the Northern California United States Attorney. That repressive
effort grew more intense over the next few years, notwithstanding the efforts of the President and
the United States Attorney General to de-emphasize federal marijuana prosecutions and to
respect state efforts to make marijuana lawfully available to patients for medical use.
Mr. Rush appeared on the government’s “radar” in the “Limelight” investigation partly as
a result of telephone records indicating that he was in communication with a Nevada marijuana
advocate who was being targeted for prosecution. Mr. Rush had long been a supporter of making
medical marijuana available to needy patients, and for many years had been employed as a
special operations director with Local 5 of the United Food and Commercial Workers Union
(UFCW).
In August 2011 he went to work for the International Union as Organizing Coordinator of
the UFCW. He quickly saw the advantages to both the International and the movement to
decriminalize medical marijuana by organizing cannabis workers in this emerging industry. Soon
he helped create and became director of Cannabis Workers Risingdivision within the union, as
he became an active spokesperson for California Proposition 19, which would have
decriminalized medical marijuana.
He began to travel widely throughout California and in other states with pending
legalization efforts, encouraging public officials to support such legalization. These actions
brought him into conflict with the (former) United States Attorney and the drug enforcement
bureaucracy, a conflict which grew sharper as California law came to allow counties to establish

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medical cannabis regulations. At least by October 17, 2013,1 Mr. Rush was a clear target of the
federal investigation, which proactively utilized large scale illegal growers seeking to curry favor
with the government or to work off their cases, actual or threatened.
Massive consensual monitoring and recording of his conversations followed, as the
government sought to build its case against him, eventually turning even his lawyer into a proactive government informant against him.

Yet Mr. Rush was not indicted on the instant charges

until September 17, 2015. Against this background we respectfully suggest that vacating the
present trial date and establishing the schedule proposed herein is eminently reasonable under the
circumstances.
Defendant will detail counsels’ considerable efforts to review discovery below, and will
also make the Court aware of a substantial amount of additional discovery that they have
previously requested but which has either not yet provided or entirely refused. In the next section
of this Introduction they will generally outline the overarching issues surrounding the
government’s aiding, abetting and facilitating egregious violations of Mr. Rush’s attorney-client
privilege by and through its chief cooperating witness, Attorney Martin Terbeek.
The discovery that they have received, as well as their own investigation, has
demonstrated that during the course of its investigation and prosecution of Mr. Rush the
government has violated his Fifth and Sixth Amendment Constitutional rights. As a result,
undersigned counsel must prepare detailed dispositive motions to dismiss this case with

This information was gleaned from an FBI Form 1057 “Electronic Communication”,
(hereinafter “FD 1057”), dated October 17, 2013. Because there are other names in the Report,
undersigned counsel have not appended a copy hereto; however they will have it available for the
Court’s review at the Status Conference.
1

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prejudice based upon Outrageous Government Conduct and Vindictive Prosecution, each of
which will require substantial additional discovery and evidentiary hearings.
Undersigned counsel must also prepare and file motions to suppress evidence from at
least four (4) separate searches, and from other conversations involving Mr. Rush that were
recorded without authorization by any court and in violation of the laws of the States of
California and Nevada. If any of these motions were granted the government is unlikely to be
able to present most, if not all of its evidence against Mr. Rush.
Even if the Court were to deny all of the foregoing dispositive motions for relief, there are
likely to be myriad pretrial motions in limine to address evidence that the parties may seek to
introduce at trial, including defenses of entrapment and lack of mental capacity, and the
admissibility of evidence pursuant to Rules 403, 404(b), 501-502, and 801(d)(2)(E) of the
Federal Rules of Evidence. Therefore defendant respectfully asserts that the scheduling relief
requested herein would provide the most thorough, expeditious and fair process to ready this
highly complex case for trial, assuming the Court does not dismiss it for reasons suggested
above.

B. Attorney-Client Privilege.
In this section of the Status Report, defendant will outline some of the pertinent details in
regard to the repeated violations of Mr. Rush’s attorney client privilege by its cooperating
witness, Marc Terbeek, which were carefully orchestrated and monitored by government agents
and prosecutors. This will form the basis for a Motion to Dismiss the Indictment for Outrageous
Government Conduct that will be filed after the government completes its duty to provide
relevant discovery, only a portion of which has been received by defendant to date.

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In the succeeding paragraphs, undersigned counsel will provide some detailed
background on this issue, because to adequately address it in pretrial motions will require careful
review of thousands of documents, many of which have not yet been provided in discovery. The
privilege issue impacts every aspect of the government’s investigation, and also this Court’s
obligation to determine the admissibility of much of the prosecution’s evidence at trial.
In January 2015, six (6) months before the instant indictment was returned, the law office
of his private attorney (and alleged co-conspirator) Marc Terbeek was searched. Apparently
Terbeek immediately decided to become a cooperating witness in an effort to minimize his
criminal exposure.
As noted above, in numerous documents and pleadings the government has repeatedly
characterized Terbeek’s role in the alleged conspiracies charged against Mr. Rush, as his
“co-conspirator”. After the January 2015 search of his law office and his immediate decision to
work for the government against his client Mr. Rush, Terbeek participated PROACTIVELY in
the government's investigation of Mr. Rush on almost a daily basis for a period of 7 months.
Over that lengthy period of time he recorded numerous person-to-person and telephonic
conversations with Mr. Rush, each of which was approved in advance and carefully orchestrated
by the FBI agents and government prosecutors to attempt to incriminate Mr. Rush. Terbeek also
voluntarily provided numerous documents to the government which were privileged.
Terbeek’s efforts have obviously satisfied the government. Although characterized by the
government in various application and in the initial Complaint herein as Mr. Rush’s
“co-conspirator”, and also having perpetrated many crimes that have nothing whatsoever to do
with Mr. Rush, Terbeek has not yet been charged with any criminal offense, and remains “in

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good standing” with the State Bar of California. [See “screenshot” from State Bar of California
Web Site, attached hereto as “Exhibit A”.]
Undersigned counsel have been concerned from the beginning of this case with the extent
to which the government and Terbeek’s actions outlined above impacted the privacy of
defendant’s attorney-client privileged communications with Terbeek. In 2015 government
counsel agreed to provide them with copies of all documents from the Terbeek law office search
in January 2015, including the search warrant application and affidavit, the search warrant, the
return from the search, and all other documents related to the search.
Therefore at Pages 2-3 of their comprehensive 17 page discovery request sent to the
government on May 4, 2016, a copy of which is attached hereto as “Exhibit B”, they reiterated
their requests in great detail.2 However it failed to do so until 10:30 am on July 14, 2016, the
date of the filing of the instant status statement, when materials pertaining to the search were
delivered by Federal Express.3
Based upon information from government counsel, as well as assertions in the application
for the July 2015 search warrant for Mr. Rush’s residence, it appears that the government was
well aware of the attorney-client privilege issue in searching Terbeek’s law office (presumably
for files related to his client, defendant Rush). According to the undocumented assertions of
government counsel, its “solution” to the obvious privilege issues was to have a “taint team”

2

This discovery letter will be referred to again, infa.

Undersigned counsel will review these materials and be prepared to address them substantively
at the July 18, 2016 Status Hearing, but do not have time to address them in further detail in this
pleading.
3

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review the files during the Terbeek law office search (whatever that process may actually have
entailed).
Six months later, the government’s position on the attorney-client privilege between
defendant and Attorney Terbeek was described as follows in Paragraph 18 of the Application for
the Search Warrant for Mr. Rush’s residence:
“TERBEEK has been informed by the United States Attorney’s Office that he is a target
of this investigation and is likely to be prosecuted. He is represented by counsel, Edward
Swanson and August Guglemann. TERBEEK is cooperating with the FBI investigation
for the purpose of mitigating his culpability and reducing any potential sentence.
Terbeek is an attorney. He has informed me that he has considered the issue of attorney
client privilege and consulted with Mr. Swanson and Mr. Guglemann regarding
whether the information he has provided to the FBI is protected by the attorney-client
privilege, and has not provided the FBI with privileged information.” (Emphasis
added).
Therefore the government chose to vest total discretion and responsibility in Terbeek to
determine whether any of his actions during the investigation, and any of the documents and
information he provided and information he later solicited during recorded conversations
violated Mr. Rush’s attorney-client privilege.
This process created inherent and unresolvable conflicts of interest between Terbeek and
Rush, because Terbeek wanted to “mitigate his culpability” and “reduce any potential sentence”
by maximizing his production of “incriminating information”. Likewise Terbeek’s criminal
defense lawyers owed no duty to Mr. Rush, and had the primary responsibility of assisting and
facilitating their client Terbeek in his mitigation and potential sentence reduction efforts.4

Indeed, defendant asserts that every disclosure of attorney-client communications by Terbeek to
his criminal defense lawyers Swenson and Guglemann (third parties who owed no duty of
confidentiality whatsoever to Mr. Rush), further violated Rush’s right to the confidentiality of his
communications with Terbeek.
4

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Most egregious of all, the government attempted to separate itself from all responsibility
for determining whether Mr. Rush’s rights were in any way violated. Thus for six months, the
government carefully orchestrated conversations between Terbeek and Rush that Rush believed
were privileged, while third parties (agents and prosecutors) listened to the conversations and
reviewed the Terbeek-produced documents without a shred of concern about Mr. Rush’s
privilege.
Undersigned counsel are well-aware of the crime-fraud exception to the attorney-client
privilege. There are numerous cases wherein an attorney is required to respond to questions
before a grand or petit jury, the answers to which would otherwise be privileged, if a court
determines in advance that the crime/fraud exception is applicable in that particular instance.
Likewise, counsel understand that upon advance judicial approval and a finding of
probable cause, conversations between lawyers and clients may be “bugged”, and portions later
used in evidence under the crime-fraud exception. However all of these instances involve and
relate to past events.
The only case that counsel have yet found that involved proactive involvement of a
lawyer against a client is United States v. Marshank, 777 F.Supp, 1507 (N.D.Ca. 1991), wherein
Judge Patel dismissed a prosecution for outrageous government conduct in violation of
Marshank’s Fifth and Sixth Amendment rights. In doing so, after extensive evidentiary hearings,
she granted defense motions for such dismissal and also did so in the exercise of her inherent
supervisory powers over the case.
At all points in time until he read the complaint after his arrest in July 2015, Mr. Rush
believed that all of his conversations with Attorney Terbeek had been completely privileged.

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Undersigned counsel will go into much further detail as to these matters in their moving papers,
once they have received the requested and promised discovery.
C. Discovery Issues.
1. Form of Discovery.
Regardless of whether it was intentional, undersigned counsel respectfully suggest that
the voluminous discovery provided to date by the government effectively constitutes a
“document dump”. In cover letters dated October 27, 2015, May 23, 2016 and May 24, 2016, the
government summarized the discovery it provided. [Copies of these letters are attached hereto as
“Exhibit C, Exhibit D, and Exhibit E”].
The difficulties inherent in the manner in which the discovery information has been
presented to counsel for Mr. Rush has been the basic impediment to their ability to determine
what is relevant to their trial preparation and what is not. The following example will hopefully
explain their dilemma.
In the cover letter dated May 24, 2016 (a part of Exhibit E), item (3) is described as:
“A collection of key documents, in chronological order, describing the investigation.
Although these documents have been produced in other forms, we thought it would be
helpful for you to see these documents in an assembled form. These documents bear
Bates labels DR-001871 to -002368.”
This would constitute approximately 600 pages.
However when opening the CD to that Bates Range, each of the approximately 384
separate documents is identified and labeled solely with its opening Bates number. In “Exhibit
F” attached hereto, counsel have provided “screen shots” showing what one can observe upon
opening the folder.

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In order to view and identify the contents, each of the files must be separately opened.
After opening and reading each of the files, counsel must then execute a “Save As” command, to
enable them to enter a new descriptive name so that they may more easily search and find it again
as necessary, and/or print it out.
This is a highly labor intensive process that undersigned counsel must perform
themselves. If they were applying the Ninth Circuit CJA standards for reading of transcripts (60
pages per hour), just reading those 384 files would require at least 10 hours; further, the process
of opening, labeling, saving and cataloguing them would require substantial additional time.
2. Volume of Discovery.
As noted above, the government has already delivered an extensive amount of discovery
to Mr. Rush, and in this subsection counsel will summarize its contents. In the following
subsection, he will review what the government has refused to provide to them, which may
require counsel to file motions to compel discovery.
In its first production of discovery on October 27, 2015, [Exhibit C”], the government
delivered 61 CDs, and mentioned that 4 additional CDs may contain privileged information, and
they would be sent “to counsel for Mr. Terbeek to review these for potential privilege”. On
October 29, 2015, counsel for Mr. Rush sent the government a brief response, in which it sought
some additional discovery, and also questioned its determination to send potentially privileged
conversations to Terbeek’s counsel, when the privilege belongs to Mr. Rush. [A copy of
defendant’s October 29, 2015 response has been attached hereto as “Exhibit G”.]
The government’s May 23, 2016 discovery cover letter listed and described, inter alia,
ten (10) categories of discovery materials that were loaded onto the one Terrabyte external hard

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drive provided to it by defendant at the government’s request. When undersigned counsel logged
onto the hard drive, each file was again identified solely by its beginning Bates number, as was
the case above in Exhibit F.
Subsection (8) alone of that production letter lists Bates numbers for approximately
886,000 pages of documents produced by the UCFW in response to a grand jury subpoena,
which according to government counsel sought documents pertaining to Mr. Rush and to
Medical Cannabis. At least another 4 gigabytes of files are included in the other nine (9)
categories of “non-UCFW” files that are on that hard drive.
Undersigned counsel have not begun to review these UCFW files, and in a conversation
with government counsel on July 8, 2016, they were given to understand that the government had
not done so either. Assuming the UCFW grand jury subpoena was issued in good faith, the
government must have believed that there was pertinent information to be gleaned from such
production, and it is respectfully submitted that:
The UCFW may have provided documents that are relevant to Mr. Rush’s defense.
There is no way that undersigned counsel can make that determination without reviewing
each of the tens of thousands of documents, which would be prohibitively
time-consuming for them to attempt.
The government should bear the burden of initially reviewing all of the subpoenaed
documents to determine what may be relevant to the charges in the instant indictment.
If the government provided defendant with copies of the UCFW grand jury subpoena,
undersigned counsel might be able to narrow their review to certain specific categories of
sought documents. The government could then use its personnel and IT expertise to
extract such documents from among the 800,000 pages.
In addition to the discovery included on the external hard drive, the prosecution’s May
23, 2016 disclosure included a CD with “information seized from computers” during the July

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2015 search of Mr. Rush’s residence. It would not open despite being inserted in three (3)
different disk drives.
A second CD included in the May 23, 2016 disclosure contains five categories of
materials totaling 364 separate files, each one (1) page in length, and identified in the index
solely by its Bates number. Therefore to review these files, again each must be opened
individually, reviewed, possibly printed-out, and then renamed with a description that facilitates
locating it in the future, a highly labor-intensive process.
The government’s further disclosures on May 24, 2016, Exhibit E, included three (3)
CDs, the first of which contained an additional 950 pages of document’s broken down into seven
separate categories. Upon opening this disk there are 5 folders that generally describe the
contents, but each of the files within such folders is identified solely by its initial Bates number.
One of the folders, labeled “FBI reports” contains 44 files, each of which must be
individually opened, read, and renamed for future use and/or printed out for review. The other
two (2) CDs included in the May 24, 2016 disclosure will not open.
3. Unproduced Discovery.
As summarized above, defendant requested discovery in a lengthy request dated May 5,
2016, Exhibit B. On the date of this filing, the government provided information pertaining to
the search of the Terbeek law office, in response to undersigned counsels’ written request on
October 29, 2015, Exhibit G. They will be prepared to address this disclosure at the July 18,
2016 Status Conference.
In its May 23, 2016 letter to undersigned counsel, the government agreed to respond to
defendant’s detailed 17 page discovery request of May 4, 2016.:

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“We are also preparing a substantive response to your letter dated May 5, 2016. Although we
have now produced the vast majority of the items requested in the letter, there will be several
items that we believe need to be addressed in a more substantive fashion. I will send this
letter to you shortly, but we wanted to make sure that we continue providing discovery as
quickly as possible, in order to keep moving forward.”
Counsel for Mr. Rush have not yet received such letter, and in a conversation with government
counsel on July 8, 2016 they were informed that the government no longer intended to provide
the promised substantive response.
Defendant respectfully suggests that while the government has provided voluminous
discovery as described above, the form in which it has been presented precludes swift review and
cataloguing. The discovery requested but not provided will require substantial further discussion
between the parties, and a likelihood of motions to compel discovery to be determined by the
Court.
In Addition, the Terbeek law office search documents just received this morning must be
carefully reviewed for completeness. It will also require substantial legal research and
preparations of pleadings to address not only the “ordinary” search and seizure issues, but also
the extremely complex and unique concerns inherent in the impact of the search upon Mr. Rush’s
attorney-client privilege.

II. THE TRIAL DATE OF OCTOBER 11, 2016 SHOULD BE VACATED AND A
CONTINUANCE SHOULD BE GRANTED PURSUANT TO 18 U.S.C. §
3161(h)(7).
A continuance of the trial date may be granted under the “ends of justice” provision of the
Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A), which requires a finding by the Court that “the
ends of justice served by [granting such continuance] outweigh the best interest of the public and
the defendant in a speedy trial”, sometimes hereinafter referred to as an “ends of justice”

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continuance. Defendant will address two of the four factors identified in subsection (B) of §
3161(h)(7)(B), that this Court “shall consider” in determining whether to grant the requested
continuance in the context of the case at bar. The third factor and fourth factors, §
3161(h)(7)(B)(iii) and (iv) are not applicable to the circumstances of this prosecution.
(i): “Whether the failure to grant such a continuance in the proceeding would be
likely . . . [to] result in a miscarriage of justice”.
Undersigned counsel begin by stating that they truly understand and appreciate the
Court’s concern that this case move forward to resolution expeditiously. That is why they have
gone into great detail herein to show that the requested continuance is a matter of necessity and
not for convenience of counsel.
Undersigned counsel together have had almost 100 years of experience in the preparation
of defenses for trial in complex federal and state criminal cases, and have never addressed factual
and legal issues that are any more complicated, convoluted and thorny than those presented by
the instant investigation and indictment.
They have carefully outlined these difficulties above in this Status Report. Therefore they
must respectfully inform the Court they cannot possibly prepare this case and answer “ready for
trial” on the presently established trial date of October 11, 2016.
They believe that to do so would violate ethical duties which require them to provide an
adequate defense for Mr. Rush, and would constitute per se ineffective assistance of counsel. To
begin trial without reviewing all of the numerous documents for relevance, and without an
adequate opportunity to do the necessary factual and legal research essential to filing the abovedescribed dispositive and non-dispositive pleadings would clearly constitute a “miscarriage of
justice” pursuant to § 3161(h)(7)(B)(i).

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“(ii) Whether the case is so unusual or so complex, due to . . . the nature of the
prosecution, or the existence of novel questions of fact or law, that it is unreasonable
to expect adequate preparation for pretrial proceedings or the trial itself within the
time limits established by this section.”
Undersigned counsel respectfully assert that for reasons set forth above, the
circumstances of this prosecution are indeed highly “unusual” and “complex”, and
unquestionably present “novel” questions of both fact and law. They note that based upon the
information and circumstances outlined above, it would be “unreasonable” to expect that they
can be adequately prepared for pretrial proceedings and the trial itself on the presently set dates.
As explained above, the sheer volume of discovery already provided, and the inherent
difficulties in accessing it and rendering it usable for pretrial and trial preparation, are
overwhelming. The unique attorney-client privilege issues that pervade every aspect of the
government’s multi-year investigation are highly unique.
Counsel must do further investigation and legal research to prepare and file numerous
dispositive motions, including motions to suppress at least four (4) searches and motions to
dismiss for Outrageous Government Conduct and Vindictive Prosecution of Mr. Rush. These
efforts will be time-consuming and are likely to require further discovery from the government as
well as evidentiary hearings and thereafter further briefing for the Court.
The circumstances of this case also require counsel to investigate the defense of
entrapment and defendant’s mental capacity during the last year of the government’s
investigation. Finally, there are numerous complex evidentiary issues that must be addressed in
pretrial motions in limine, if the case is not dismissed upon granting of one or more of their
dispositive motions.
//

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III. CONCLUSION.
The government has pursued this case for many years, amassing an enormous war chest
of surreptitiously recorded private conversations. In the course of their pursuit of Mr. Rush these
Agents and prosecutors turned his lawyer into a proactive informant, recording a vast number of
calls and conversations that Mr. Rush reasonably believed were confidential and protected by the
attorney-client Privilege.
They compensated and promised leniency to a motley crew of criminals and opportunists
to create a case against him, a government onslaught that coincided with Mr. Rush’s vigorous
efforts to make medical marijuana available to needy patients though distribution centers staffed
by Union workers he helped organize under the auspices of the UFCW. His efforts were in
accordance with the will of California citizens but very much in opposition to the United States
Attorney’s sinister, punitive and ill-advised campaign against decriminalization.
In the course of this pursuit of Mr. Rush the government trampled on his constitutional
right to privacy and to due process of law, and his Sixth Amendment right to the assistance of
counsel who was not operating under a secret government-created conflict of interest while
working to save himself at his client’s expense. When the charges against Mr. Rush were finally
brought to light the government provided voluminous discovery in a disjointed and extremely
confusing manner that defies efficient or expeditious use by the defense, while withholding for a
long period important documents that have been requested since the dawn of the prosecution.
Experienced counsel view the case as complex and have set out in detail their clear need
for additional time to prepare. Under these circumstances we respectfully request that the Court
grant Mr. Rush the following relief:

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1. Declare this case complex pursuant to 18 U.S.C. § 3161(h)(7)(A);
2. Vacate the present trial date of October 11, 2016;
3. Order to government to complete its discovery production by September 1, 2016;
4. Require that defense substantive and dispositive motions be filed by October 28,
2016, and establish additional filing dates for any government opposition and defense
replies to such opposing pleadings;
5. Set a hearing date for the motions and a trial setting date after they are decided;
6. Issue such further orders as may be necessary and appropriate.
Respectfully submitted:
/s/ William L. Osterhoudt
Law Office of William L. Osterhoudt
135 Belvedere Street
San Francisco, CA 94117
Telephone: 415-664-4600
Email: Osterhoudt @aol.com
/s/ Alan P. Caplan
ALAN P. CAPLAN
Attorney at Law
1336 Villa Barolo Avenue
Henderson, Nevada 89052
Telephone: 702-331-1294
Email: apc716@gmail.com
Co-Counsel for Defendant
DAN RUSH

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CERTIFICATE OF SERVICE
I, Alan P. Caplan, co-counsel for defendant Dan Rush, hereby certify that I have
caused copies of the above Status Statement and requests for relief to be served
electronically through the ECF system and procedures to all parties herein on July 14, 2016.
/s/ Alan P. Caplan
ALAN P. CAPLAN
Attorney at Law
1336 Villa Barolo Avenue
Henderson, Nevada 89052
Telephone: 702-331-1294
Email: apc716@gmail.com
Co-Counsel for Defendant
DAN RUSH

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