Defense attorneys told U.S. District Court Judge Anna Brown on Friday that the government hadn’t been honest with her or the defense about how it handled Facebook evidence for those accused of conspiring to occupy the Malheur National Wildlife Refuge.
“I’m just confounded that they can just come in [the courtroom] and — I don’t want to use the word 'lie' — but somebody did,” said attorney Per Olson, who is representing defendant David Fry.
Olson said on July 18, Assistant U.S. Attorney Craig Gabriel told the court the Facebook search was complete and all the material was deleted, destroyed or sealed at the FBI.
But Olson said — and court documents show — that wasn’t the case until more than a month later.
Information At Issue
On Aug. 3, Olson discovered a problem. Private information, outside the scope of the government’s Facebook search warrant, made its way into evidence.
Facebook provided the FBI with the defendants' entire account information. From there, the FBI was to search for relevant information, separate it for prosecutors and seal the rest. But that didn’t happen in every case.
Eleven of the defendants' entire Facebook accounts, none of whom are going to trial this month, were submitted into discovery and shared with all defendants. Prosecutors going to trial said they did not see the private information.
Since the discovery, Olson has tried to prove the government violated the search warrant, therefore the evidence should be kept out the trial.
Prosecution Explains Its Actions
Two previous times the government tried to explain how it handled the evidence, each only drew more questions from Brown.
Friday in court, the government offered its final version of events, one that showed evidence from Facebook was not sealed as they stated in court. The government maintains its actions were covered by the search warrant, and despite mistakes, it should be allowed to use private Facebook messages and other information as evidence at trial.
Related: An Occupation In Eastern Oregon
In a written declaration, FBI agent Travis Welter, said the evidence from Facebook was not fully sealed or destroyed until Aug. 23.
In his declaration filed with the court, Welter said on Aug. 4 he met with Gabriel, Assistant U.S. Attorney Geoff Barrow and Rena Rallis, a litigation support specialist who’s helping prosecutors with their case.
“During this meeting, the aforementioned AUSA’s asked me to seal and return the following Facebook response data to the Portland FBI Office,” Welter wrote. “AUSA’s Gabriel and Barrow also requested that I destroy all remaining copies of Facebook search warrant response data that were not sealed and stored in evidence.”
Welter said he was told to label all Facebook search warrant data that was in evidence: “Do not open without a court order.”
“On or about August 4th and/or 5th, I collected any remaining working copies of Facebook search warrant response data from the search team and shredded them,” Welter wrote.
Did The Government Lie?
“There is no evidence here that the government — either at the FBI or the U.S. Attorney’s Office — gave any level of respect to this process,” Olson said. “There is this element of hiding the ball.”
Olson also pointed out he didn’t think Gabriel lied knowingly, but that someone had provided him with bad information.
Assistant U.S. Attorney Scott Bradford argued the search warrant grants them 180 days to complete the search, which was originally authorized in April.
Related: Government Outlines Malheur Trial Facebook Evidence Fumble In Memo To Judge
“At the end of the 180 days is when the sealing would take place,” he said.
Brown asked Bradford why he was relying on the 180-day timeline.
“There isn’t a right to leave the non-responsive information unsealed,” she said.
Bradford repeated his argument.
“I don’t think that we’re communicating Mr. Bradford,” Brown replied.
“The court may find that the government failed to seal it at the appropriate time,” Bradford said. But he stressed again that the trial prosecutors didn’t see the private information and that no one intentionally misled the judge or the defense.
Bradford said Brown should allow the government to use the Facebook evidence at trial.
Previously Brown ruled the Facebook evidence could be used as evidence. But following the discovery, an annoyed Brown reversed that decision and reopened the question.
She’s promised to rule before Tuesday’s opening arguments.