Barrett Brown Moves to Dismiss Obstruction.pdf

Case 3:13-cr-00030-L Document 56 Filed 03/03/14 Page 1 of 23 PageID 224

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

________________________________

UNITED STATES OF AMERICA

Case No: 3:13-CR-030-L

Hon. Sam A. Lindsay

BARRETT LANCASTER BROWN

MOTION TO DISMISS THE INDICTMENT

Defendant BARRETT LANCASTER BROWN files this motion to dismiss the

indictment, or in the alternative elect between multiplicitous counts. In support thereof, he

would show the Court the following:

INTRODUCTION

The Indictment is fatally flawed for several reasons. As POINT I illustrates, the alleged

act—placement of an object within the scope of a search warrant—cannot constitute

“concealment” within the meaning of the charging statutes. Nor can it be used to demonstrate

that Mr. Brown acted with culpable state of mind to interfere with justice. Moreover, as

illustrated in POINT II, Count 1 must be understood to require a corrupt mens rea. Otherwise,

this provision is unconstitutionally vague and overbroad and the charge must be dismissed. In

addition, as illustrated in POINT III, §1512’s applicability is limited to witness tampering; it is

not meant to be a catch-all obstruction of justice crime and does not encompass the charged

conduct. Finally, in the alternative to dismissal, the Court should compel the government to elect

between multiplicitous counts, as discussed in POINT IV.

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FACTS

Mr. Brown is charged in a two count indictment with placing “two laptop computers

within KM’s residence in the Northern District of Texas, prior to execution of a search warrant

on KM’s premises.” Indictment at 1. Count 1 charges a violation of 18 U.S.C. §1519. Count 2

charges a violation of 18 U.S.C. §1512(c)(1).

KM subsequently pled guilty to a misdemeanor violation of 18 U.S.C. 1501. According

to the Factual Resume in that case, two FBI agents visited KM’s residence at 6:30 AM on March

6, 2012. See Factual Resume (hereinafter “FR”), 13-CR-00110-N Dkt. 4 at 2. They notified Mr.

Brown that they had just executed a search warrant at his residence. Id. They asked Mr. Brown

if he would voluntarily produce the laptops. Id. According to the Factual Resume, KM and Mr.

Brown then agreed to “hide and conceal” the laptop computers. Id. Between the hours of

6:30AM and 1:55PM, “KM placed two laptops belonging to Barrett Brown in the back of a

lower corner cabinet in the kitchen in an attempt [to] prevent them from being located and seized

by the FBI.” According to the Factual Resume, the FBI agents arrived at approximately 1:55PM.

They found the laptops shortly thereafter.

Nearly a year later, Mr. Brown was charged with two counts of obstruction of justice.

Count One charges a violation of §1519 for “concealing two laptop computers [..] prior to the

execution of a search warrant.” Section 1519 provides up to 20 years imprisonment for:

Whoever knowingly . . . conceals . . . any record, document, or

tangible object with the intent to impede, obstruct, or influence the

investigation or proper administration of any matter within the

jurisdiction of any department or agency of the United States

18 U.S.C. §1519.

Similarly, Count Two charges a violation of §1512(c)(1) for “corruptly conceal[ing] [..]

two laptop computers, with the intent to impair the integrity and availability for use in an official

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proceeding specifically related to the search warrants” Section 1512(c)(1) provides up to 20

years imprisonment for:

Whoever corruptly . . . conceals a record, document, or other

object, or attempts to do so, with the intent to impair the object's

integrity or availability for use in an official proceeding

18 U.S.C. §1512(c)(1).

ARGUMENT

POINT I

COUNTS 1 AND 2 SHOULD BE DISMISSED FOR

FAILURE TO ALLEGE FACTS SUFFICIENT TO SUPPORT AN OFFENSE

This case presents an issue of first impression for the Court—whether placement of an

object within the scope of a search warrant can, as a matter of law, constitute concealment in

violation of §1519 or §1512. Mr. Brown respectfully submits that the act of placing an item

within the scope of a search warrant cannot constitute obstruction of justice, particularly when

the item is found. This is because the act (1) does not have the probable consequence of

obstructing justice, (2) cannot be used to demonstrate that the defendant acted with a culpable

state of mind, (3) is not in violation of any duty to preserve or produce records, and (4) renders

other terms superfluous in the statutory scheme.

A. The Act of Placing an Item Within The Scope Of a Search Warrant Cannot Have

the Probable Consequence of Obstructing Justice by Concealment, Especially

when the Item is Found.

As a threshold matter, the charging statutes do not require criminal liability for any act

done with intent to obstruct justice. United States v. Aguilar , 515 U.S. 593, 602 (1995) (rejecting

view that “any act, done with intent to ‘obstruct . . . the due administration of justice’ is sufficient

to impose criminal liability,” even while grand jury sitting). In Aguilar , the Court found that

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making a false statement to an investigating agent was not encompassed by the catch-all

obstruction statute, §1503, because it was not likely to obstruct justice.

Instead, violating conduct must have the probable consequence of obstructing justice. Id.

See United States v. Mix , 2013 WL 5588317 (E.D. La. Oct. 10, 2013)(“before a defendant may

be convicted of obstruction under § 1512(c)(1), he must believe that his acts will be likely to

affect a pending or foreseeable proceeding”)(quoting United States v. Matthews , 505 F.3d 698

(7th Cir.2007)).

In United States v. Aguilar , the Supreme Court confronted this issue with an obstruction

statute that encompassed a broader actus reus . Specifically, §1503 criminalized the “endeavor”

to corruptly influence the due administration of justice. The Court read the statute to give

endeavor an expansive meaning, giving §1503 a catch-all purpose for imposing criminal liability

in cases where a person attempts but fails to obstruct justice.

Our reading of the statute gives the term “endeavor” a useful

function to fulfill: It makes conduct punishable where the

defendant acts with an intent to obstruct justice, and in a manner

that is likely to obstruct justice, but is foiled in some way.

Id. at 610; see also United States v. Richardson , 676 F.3d 491, 502-03 (5th Cir. 2012);

As the Court stated in United States v. Russell , “The word of the section is ‘endeavor,’

and by using it the section got rid of the technicalities which might be urged as besetting the

word ‘attempt,’ and it describes any effort or essay to accomplish the evil purpose that the

section was enacted to prevent.” United States v. Russell, 255 U.S. 138, 143 (1921) (emphasis

added). Still, despite this expansive language, the Supreme Court found that §1503 did not

require criminal liability for acts that were not “likely to obstruct justice” even if done with the

intent to obstruct.

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Here, a blanket allegation of intent to obstruct is not sufficient to carry the Indictment.

The government must allege an act that, at minimum, has the probable consequence of

obstructing justice. Notably the two laptops allegedly “concealed” by the defendant were found,

within the scope of the search , during the standard execution of the search warrant. This fact

alone means that Mr. Brown’s alleged act had no possibility of interfering with justice. Indeed,

the agents were able to find the items sought with no alleged hurdle.

Nor should the location where an item was placed matter to the Court’s determination as

to whether an act had the “probable consequence” of obstructing justice. Here, for instance, KM

placed the laptop in the back of the kitchen cabinet. Would it have made any difference if she

had placed the items in the living room closet?—a drawer in the bedroom?—a cabinet in the

bathroom? None of these locations are “traditional” places to keep a laptop. But that should not

matter, because any test that relies on such information is flawed, and risks arbitrary.

enforcement).

As such, any item found within the scope of the search cannot be deemed “concealed”

per the statute. Any contrary rule or holding would require, for instance, the court to decide

whether the placement of an item inside a home is “concealment,” where the item was obtainable

as a matter of law (because it was found), where nothing was destroyed, and where the agents

executing the search did not appear to have to perform any extra tasks than those required to

execute the warrant. By contrast, removing an item from the scope of the search is obstruction.

See e.g. §1506.

B. The Indictment Fails to Allege Facts that Demonstrate the Defendant Acted with

Culpable State of Mind to Interfere with Justice.

For related reasons, the case law clearly requires that the act alleged demonstrate that the

defendant acted with a culpable state of mind to interfere with justice. See United States v.

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