06252018 - News Article - Feds offer latest volley in battle over Mayor Snyder's emails

Feds offer latest volley in battle over Mayor Snyder's emails
NWI Times
June 25, 2018
https://www.nwitimes.com/news/local/crime-and-courts/feds-offer-latest-volley-in-battle-over-mayor-snyder-s/article_b56478a1-d02a-5f38-8a21-c8545e9fef38.html

The U.S. attorney's office in Hammond has filed the latest in a flurry of legal briefs in U.S. District Court over whether any of indicted Portage Mayor James Snyder's subpoenaed emails improperly influenced the legal case against him.

"The Court can and should assume that Defendant has chosen to cast aspersions on the investigation into his criminal conduct instead of addressing the legal issues raised by his motion because he knows the latter lack merit," the U.S. attorney's office brief filed Friday said.

Snyder was indicted in November 2016 on charges of felony bribery, extortion and tax dodging counts, which can carry long prison terms if he is convicted. He has pleaded not guilty.

Snyder was represented by Thomas L. Kirsch II before the latter was named U.S. attorney for northern Indiana. Snyder's current counsel, Jackie M. Bennett of Indianapolis, contends the "taint team" set up by federal investigators to make sure email shared with prosecutors doesn't violate attorney-client privilege, failed to protect Snyder.

The federal prosecutors' brief filed Friday explained the three-step process to protect Snyder's rights. FBI Supervisory Special Agent Eric Field, who interviewed all potential witnesses, didn't have access to the quarantined files identified in the first round of review, and only two FBI employees had access to the winnowed messages. Field told them to be "overly cautious" during their review, prosecutors said.

"The government admits that its filter review was not perfectly executed; copies of a handful of the same or similar emails were inconsistently tagged," but none of the six emails contained legal advice or "anything remotely approaching trial strategy," prosecutors said.

Snyder's defense took issue with 38 emails shared with prosecutors.

"Simply put, there is no 'there' there; nothing in or about the 38 contested emails provided insight into Defendant's defense," prosecutors said.

Snyder's defense has sought the disqualification of the prosecution team or dismissal of the case against him. Prosecutors contend the contested emails don't contain any information that would prejudice the case against him.

Snyder declined the opportunity to speak publicly Monday about this latest brief.

06252018 - News Article - Prosecutors defend process used to screen indicted Portage mayor's emails

Prosecutors defend process used to screen indicted Portage mayor's emails
Chicago Tribune
June 25, 2018
http://www.chicagotribune.com/suburbs/post-tribune/news/ct-ptb-snyder-prosecutor-brief-st-0623-story.html

In a Friday filing, federal prosecutors said indicted Portage Mayor James Snyder has offered no proof that potentially privileged material reviewed by the trial team affected its corruption probe.

Assistant U.S. Attorney Jill Koster said that Snyder has not presented any evidence that shows his email communications were used in any improper way during the investigation, according to court documents, and that a judge should not disqualify the prosecutors on the case or dismiss any charges against the Portage mayor.

“Defendant has failed to establish that the 38 disputed emails are privileged or that he has suffered any actual prejudice resulting from the government’s taint team procedure,” Koster said. “Defendant’s motion should therefore be denied.”

Snyder’s defense attorneys say the charges should be dismissed or trial attorneys disqualified if those email communications were accessed. Defense attorneys have argued that emails seized in 2015 were put through a faulty screening process, according to court documents, and the trial team accessed and used privileged communications.

“In keeping with his other filings in the aptly described ‘months-long detour,’ defendant’s brief attempts to unnecessarily complicate the issues,” Koster said.

Koster said the judge only needs to consider two things: if any of the contested emails were privileged attorney-client communication or work product, and if they are, whether the disclosure to the trial team created any prejudice toward Snyder’s case.

“If the answer to either question is no, defendant’s motion must be denied,” Koster said.

Snyder and John Cortina, of Kustom Auto Body in Portage, were charged in November 2016 with allegedly violating a federal bribery statue. Federal prosecutors said the mayor allegedly solicited money from Cortina and “Individual A” and gave them a towing contract for Portage.

Snyder received an additional bribery indictment for alleged accepting $13,000 in connection with a Board of Works Contract, and allegedly obstructing internal revenue laws.

Snyder and Cortina both pleaded not guilty to the charges, according to court documents.

Since February, Snyder’s defense team has filed motions accusing federal investigators of setting up a faulty screening process to review seized emails, and Judge Joseph Van Bokkelen heard evidence during three days of closed-door hearings on the issue.

“The court can and should assume that defendant has chosen to cast aspersions on the investigation into his criminal conduct instead of addressing the legal issues raised by his motion because he knows the latter lack merit,” Koster said.

Jackie Bennett Jr., Snyder’s defense attorney, said the flawed screening process warrants the recusal of the trial team who was potentially exposed to attorney-client privileged material, according to court documents filed Friday.

Bennett said the procedure used by federal investigators was designed give broader access to the communications to the government, according to court documents, and limit protections for privileged communications between Snyder and his attorneys.

“Nothing forced the government to adopt the procedure used here. Instead of adopting a procedure utilized in previous cases, or one recommended by the U.S. Attorney’s Manual, the government designed a procedure that maximized its own convenience — a procedure whose benefits accrue solely to the government and whose costs accrue solely to Snyder and similarly situated defendants.”

Bennett said the process used in the Snyder case failed to use comprehensive search terms during the first phase to better filter the communication; used FBI agents without law degrees to screen for privileged material; and finally duplicate communications were flagged as privileged and non-privileged during the third stage and were passed to the trial team.

“The notion that there were three layers of protection for Snyder is categorically false,” Bennett wrote.

Koster said out of the 109,000 emails seized and screened, the defense team has taken issue with the classification of 38 communications.

None of the testimony presented has shown that the disclosure of those 38 emails prejudiced Snyder, Koster said.

“The content of the messages contained neither requests for, no the provision of, legal advice, much less any discussion of trial strategy,” Koster said.

Koster said several communications were tagged “not privileged” during earlier stages of review but later tagged “privileged” during the third phase. Koster said none of those emails were privileged because they did not contain a request for, or the provision of, legal advice or anything about trial strategy.

“The government admits that its filter review was not perfectly executed; copies of a handful of the same or similar emails were inconsistently tagged,” Koster said.

06112018 - News Article - Portage Mayor Snyder's defense team claims even better email review processes -- including one proposed in Trump attorney Michael Cohen's case -- rejected by the courts

Portage Mayor Snyder's defense team claims even better email review processes -- including one proposed in Trump attorney Michael Cohen's case -- rejected by the courts
NWI Times
June 11, 2018
https://www.nwitimes.com/news/local/crime-and-courts/portage-mayor-snyder-s-defense-team-claims-even-better-email/article_0538f867-75af-5b05-905f-f575c35edaf2.html

HAMMOND — Indicted Portage Mayor James Snyder's defense team contends that even better email review processes than used in his case have been rejected by courts.

That includes, according to a 37-page brief filed in U.S. District Court late Friday, a procedure proposed to review and vet privileged communications between President Donald Trump's personal attorney Michael Cohen and his clients.

"Compared with the haphazard methods employed by the government in the Snyder case, the careful approach proposed by prosecutors involved in the Cohen search is notable and telling," reads the brief, which was filed in response to public testimony held May 24. "Whatever else one may think about the Michael Cohen raid, at a minimum the parties demonstrated a seriousness of purpose in protecting privileged materials, standing in stark contrast to the slapdash process used for Snyder."

The district court in New York rejected that email review process, notes the document, saying a retired federal judge was appointed as a special master.

The latest brief is in response to the testimony of FBI supervisory special agent Eric Field and Jesse Rodgers, a litigation technology specialist for the U.S. district attorney’s office held in open court May 24. At that hearing, the two explained the "taint team" or email review process used to determine which of Snyder's emails with his former attorney were privileged.

Snyder contends that prosecutors read emails seized by a search warrant in 2015 between himself and his former attorney, now U.S. District Attorney Thomas Kirsch II. He claims those emails contained attorney/client privilege information and work product and that his constitutional rights have been violated. Snyder asked that the three-count public corruption indictment against him be dismissed or that the current prosecution team be disqualified.

The issue has been argued for some four months through briefs filed in court as well as open and closed court hearings.

The filing by Snyder's present attorney, Jackie M. Bennett of Indianapolis, contends the entire "taint team" process was tilted in favor of federal prosecutors.

Among several issues raised in the brief, the filing questions why Field would have eliminated certain "protective" keywords from an initial search of the emails.

"The record leaves open Field's motivation behind erasing these more protective terms when executing a privilege search of Snyder's personal email account, but nothing suggests it was an accident," the brief reads.

It also criticizes using two FBI agents during the second phase of the process who were not attorneys nor had participating in such a process previously and only being given a verbal explanation of what attorney/client privilege meant.

"There was no procedure in place to guard against these non-lawyers mistakenly marking a document 'non-privileged' when it was actually 'privileged'," the brief continues.

The brief also contends the utilized review process provided "absolutely no safeguard or protection against 'Type II' errors," which it defines as something "actually privileged but was mistakenly marked as non-privileged" and "would severely impact Snyder."

Prosecutors have until June 22 to respond to the latest defense brief.

Snyder was indicted in November 2016 on charges of felony bribery, extortion and tax dodging counts. He has pleaded not guilty. His trial is set for Oct. 9, however, deadlines for additional briefs to be filed by both the defense and prosecution teams extend until Aug. 13. Many of those briefs are expected to be sealed from the public as they will address testimony given in closed court.

06112018 - News Article - Indicted Portage mayor continues push to disqualify federal prosecutors from corruption case

Indicted Portage mayor continues push to disqualify federal prosecutors from corruption case
Chicago Tribune
June 11, 2018
http://www.chicagotribune.com/suburbs/post-tribune/news/ct-ptb-snyder-prosecutor-brief-st-0612-story.html

Attorneys for indicted Portage Mayor James Snyder say a flawed filter process used to screen his seized emails justifies disqualifying federal prosecutors from his corruption case.

Jackie Bennett Jr., Snyder’s defense attorney, said the screening process warrants the recusal of the trial team who was potentially exposed to attorney-client privileged material, according to court documents filed Friday. Snyder’s defense attorneys are seeking to not only disqualify the trial team but also get the charges dismissed because federal authorities reviewed the sensitive communications.

Bennett said the procedure used by federal investigators was designed give broader access to the communications to the government, according to court documents, and limit protections for privileged communications between Snyder and his attorneys.

“Nothing forced the government to adopt the procedure used here. Instead of adopting a procedure utilized in previous cases, or one recommended by the U.S. Attorney’s Manual, the government designed a procedure that maximized its own convenience – a procedure whose benefits accrue solely to the government and whose costs accrue solely to Snyder and similarly situated defendants.”

Snyder’s defense attorneys say the charges should be dismissed or trial attorney disqualified if those email communications were accessed. Defense attorneys have argued that emails seized in 2015 were put through a faulty screening process, according to court documents.

Snyder’s brief follows three days of closed-door hearings in May when Judge Joseph Van Bokkelen heard arguments and testimony on the email issue.

The U.S. Attorney’s Office does not comment on pending cases.

Bennett, in court documents, said the three-stage screening process was flawed at each step.

In court filings, Assistant U.S. Attorney Jill Koster said investigators screened the emails using a three-stage process, which first started by flagging emails using a system at FBI headquarters in Washington, D.C.; then another team of FBI employees filtered any emails flagged by the system; and finally an assistant U.S. attorney not involved in the case reviewed to ensure no privileged communication survived the quarantine process.

“The notion that there were three layers of protection for Snyder is categorically false,” Bennett wrote.

Bennett said the process used in the Snyder case failed to use comprehensive search terms during the first phase to better filter the communication; used FBI agents without law degrees to screen for privileged material; and finally duplicate communications were flagged as privileged and non-privileged during the third stage and were passed to the trial team.

Bennett drew comparison between Snyder’s case and that against New York attorney Michael Cohen, who worked for President Donald Trump and had his information seized by government officials.

In Cohen’s case, Bennett said government investigators used assistant U.S. attorneys to review the seized documents; any potentially privileged material was set aside until defense representation or a judicial officer reviewed the material; defense counsel aided in the filter process; and a special master was appointed to conduct the privilege review.

“Compared with the haphazard methods employed by the government in the Snyder case, the careful approach proposed by prosecutors involved in the Cohen search is notable and telling,” Bennett said.

Snyder and John Cortina, of Kustom Auto Body in Portage, were charged in November 2016 with allegedly violating a federal bribery statue. Federal prosecutors said the mayor allegedly solicited money from Cortina and “Individual A” and gave them a towing contract for Portage.

Snyder received an additional bribery indictment for alleged accepting $13,000 in connection with a Board of Works contract, and allegedly obstructing Internal Revenue Service laws.

Snyder and Cortina both pleaded not guilty to the charges, according to court documents.

“The facts regarding the government’s taint team, in and of themselves, justify Snyder’s request that the trial team be recused,” Bennett wrote.

06012018 - News Article - Potential privileged emails in Portage mayor's corruption case complicated, expert says

Potential privileged emails in Portage mayor's corruption case complicated, expert says
Chicago Tribune
June 01, 2018
http://www.chicagotribune.com/suburbs/post-tribune/news/ct-ptb-snyder-email-issue-st-0603-story.html

A federal judge will soon determine how the public corruption case against Portage Mayor James Snyder will move forward, but issues about seized email communications has left the judge with numerous briefs and hours of testimony to consider.

A former federal prosecutor says wading through these issues is complicated.

Attorneys for Snyder and federal prosecutors have, for months, argued about access to potentially attorney-client privileged emails, and Judge Joseph Van Bokkelen has held four hearings on the matter, including several days spent behind closed doors.

Snyder’s defense attorneys say the charges should be dismissed or the government’s trial attorney disqualified if those email communications were accessed. Defense attorneys have argued that emails seized in 2015 were put through a faulty screening process, according to court documents, and the trial team accessed and used privileged communications.

Tim Morrison, who spent 23 years with the U.S. Attorney’s Office for the Southern District of Indiana, including time as interim U.S. attorney, said the issue is often litigated because privilege is not always set in clear lines.

People often think attorney-client privilege is broader, said Morrison, now an adjunct professor at Indiana University’s Maurer School of Law in Bloomington.

“There’s all kinds of little tests,” he said.

Jackie Bennett Jr., Snyder’s defense attorney, has said, in court documents, that the government took a narrow view of privilege and did not adequately comb through seized emails to parse out that material.

Morrison said there’s three ways that seized communications are screened: by the court; by a “special master” appointed by the court; or by government agents known as a “taint team.”

In Synder’s case, federal investigators set up a three-phase review of the seized emails. Snyder’s emails were first screened by agents in Washington, D.C., then by two agents in the FBI’s Merrillville field office, and finally by an assistant U.S. attorney who wasn’t involved in the case.

Snyder’s defense attorneys have sought to show that he “taint team” process didn’t adequately screen out privileged communications and the trial team accessed those communications.

Morrison said if that happens, it depends on what federal prosecutors make of the information.

“It’s not good to have that but it’s not the end of the game,” Morrison said.

The discussions have focused on more than 30 emails that went to the trial team, according to court documents, but Bennett has said those should have not made it through the screening process.

Bennett, in court documents, said one of those communications was between Snyder, two city employees and copied to Kirsch about the bidding process used ahead of awarding a contract to Great Lakes Peterbilt, which is the subject on one of charges against the Portage mayor.

The defense says that information was prepared to aid in Snyder’s defense and should have been considered privileged.

Assistant U.S. Attorney Jill Koster refuted that description, according to court documents, and said the information in that email would otherwise be publicly available.

Another email discussed in court documents contains information from a prospective witness in the case against Snyder.

Cassandra Teesdale, a former employee of Snyder’s at First Financial Trust Mortgage, said after being interviewed by federal agents in 2014 she spoke with Kirsch about questions posed during that questioning, according to an affidavit, and was then asked to put her answers in writing.

Teesdale said, in the affidavit, she sent those answers to Snyder, who would have passed that document to Kirsch.

Prosecutors say that a disputed email was used during the grand jury phase of the case to question a witness.

“The witness’ testimony differed from the account she had given defendant in the email so the government showed the witness the document and inquired about the witness’ changed recollection,” Koster said in court document. “Other than that, the government does not recall making investigative use of any of the other disputed emails.”

Context is important in exploring these questions, Morrison said, and communications that look mundane could mean more when looked at in a whole strategy.

Morrison said if a client emails an attorney, discussing litigation, and mentions a potentially damaging statement made to a person asking what to do, noting the government might be aware of that potential witness, that would be privileged.

That email communication then comes into the possession of the government. Morrison said if the government already knew about that potential witness, the email would have little effect.

“It’s not really adversely affecting anybody,” Morrison said.

If the government did not know about that potential witness, Morrison said, and an investigator goes to interview that person, the email communication had more consequence.

“That is something that would be important,” Morrison said.

What distinguishes those situations is if the government gleans information from potentially privileged communication that it didn’t have independently.

“Then there’s trouble,” Morrison said.