Prosecutors challenge alleged email violations in Portage Mayor James Snyder's federal criminal case
NWI Times
Mar 7, 2018
http://www.nwitimes.com/news/local/porter/prosecutors-challenge-alleged-email-violations-in-portage-mayor-james-snyder/article_b62db74f-9cf1-5668-a1ad-1b0e071938e0.html
HAMMOND — Federal prosecutors in Portage Mayor James Snyder's public corruption case say his claims of constitutional rights violations are unfounded.
Snyder's defense team filed a motion in U.S. District Court last week claiming a "taint test" to review emails for potential attorney-client privilege had failed, allowing prosecutors to read certain privileged emails. The failure, the motion claimed, had violated Snyder's Sixth Amendment rights to a fair trial. The motion asked for the government's trial team to be dismissed and/or that the federal case against him be dropped.
Snyder was indicted Nov. 18, 2016, on two counts of bribery and one count of tax evasion.
A hearing on the matter has been set for 10:30 a.m. March 15 in Hammond federal court. His trial is scheduled for June 4.
Federal prosecutors Wednesday filed a response asking for the court to rule against Snyder's motion without a hearing. A spokesman for the U.S. Attorney's Office declined further comment on the filing.
Snyder's defense attorney, Jackie M. Bennett of Indianapolis, did not immediately return a request for comment.
According to the court documents, the FBI began investigating Snyder in 2013. Snyder was questioned by FBI and IRS agents in July 2014. He soon hired Thomas L. Kirsch II as his defense attorney. The emails seized by a warrant in September 2015 went through a "three-stage filter" process by the FBI and U.S. Attorney's Office to determine whether the content would be considered for attorney-client privilege.
Kirsch, who was appointed U.S. attorney for the Northern District in November 2017, recused himself from Snyder's case.
The review was "to be conducted by individuals with no prior (or subsequent) involvement in the investigation to ensure the prosecution team was not exposed to privileged attorney-client communications," according to the filing, which detailed the filter process. Of the about 900 emails and attachments examined, 573 were designated "not privileged." Those included the 35 emails under dispute.
An FBI special field agent, who was a member of the prosecution team at the time, reviewed some of the emails in question in spring 2016, but was transferred to Washington, D.C., in May 2016, months prior to the November 2016 indictment against Snyder. Acting U.S. Attorney John R. Lausch Jr. also reviewed all of the emails in late 2017 and early 2018.
After the prosecution team was informed of Snyder's concerns that the 35 emails had been inappropriately viewed, the emails went through another review that concluded "the 35 disputed emails did not constitute privileged attorney-client communications."
Prosecutors outlined eight specific reasons why the 35 emails were not considered attorney-client privilege. Reasons included some were forwarded to third parties or copied to third parties; some were inquiries from the media that did not include any comments seeking legal advice; some included information or attachments from third parties; did not include comments seeking or giving legal advice; were answered with information available publicly or dealt with administrative tasks.
The emails, according to the filing, were taken before Snyder was indicted and "lack any discussion between lawyer and client that can be reasonably be described as 'trial strategy.' The timing of the messages underscores this point. The emails were all sent or received by Defendant prior to September 2015 — over a year before he was charged."
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