It was a rough morning for U.S. attorneys arguing the federal government's case against Ammon Bundy, Ryan Bundy and six other defendants accused of conspiring to occupy an Oregon wildlife refuge.
A visibly frustrated Judge Anna Brown struck from the record a previous ruling that effectively allowed evidence from defendants' Facebook accounts into next month’s trial.
Despite calling an assistant U.S. attorney, two legal assistants and an FBI agent as witnesses, prosecutors weren't able to explain to the court how protected information from 11 Facebook accounts used by defendants ended up being shared as part of discovery.
Judge Brown ordered the government to file a full factual account of how it went about conducting a search warrant for Facebook data, which prosecutors intend to use to show occupiers planning the refuge takeover.
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Earlier this summer, Brown refused a defense request to suppress Facebook evidence. Now defense attorneys will have the opportunity to re-argue the issue with the hope of keeping photos, private messages and other social media material from being used in the trial, which begins Sept. 7.
If Brown finds the FBI or the U.S. attorney violated the terms of its Facebook search warrant, she could throw all the Facebook evidence out.
As part of their search warrant, prosecutors were supposed to filter out Facebook information deemed irrelevant to the occupation case. But defense attorney Per Olson, who represents refuge occupier David Fry, discovered earlier this month that federal prosecutors had included information outside the Facebook search warrant terms with defense teams as part of the pre-trial discovery process.
In a letter dated Aug. 5, prosecutors acknowledged the mistake but said it was inadvertent.
During an evidentiary hearing Tuesday, prosecutors attempted to describe the process they went through to filter Facebook evidence so only the relevant portions became part of the evidence.
Prosecutors said in cases like this it’s typical to use a “filter team” to sift through the raw data before a separate team of trial prosecutors gets the information. The government said that procedure ensures only the information outlined in a given search warrant is seen by the prosecutors who will argue a case in court.
The filter team for the Malheur Refuge case was led by Assistant U.S. Attorney Michelle Kerin. She testified Tuesday and said, in essence, that she didn't know how raw, unfiltered Facebook data made it into the reams of trial evidence.
Doug Angel, a litigation support specialist in the U.S. Attorney’s Office, was also unable to explain how the information ended up shared.
"I'm confused factually," Judge Brown said after Angel and Kerin's testimony.
Assistant U.S. Attorney Craig Gabriel attempted to clarify: “The mistake lies with the U.S. Attorney’s Office,” he said.
But the judge said that under the terms of the search warrant, the FBI was supposed to segregate the evidence, securing and sealing information not authorized by the Facebook search warrant.
FBI agent Ronnie Walker said that sometimes FBI agents conducting social media searches send the raw information from Facebook to the U.S. attorney’s filter team to have private information removed before carrying out the search warrant.
Walker said agents do that, “if they want to be extra careful.”
Brown ordered the government to file its account of what happened by next Monday using sources with direct knowledge of how the Facebook evidence was handled in the Malheur case. She'll reconsider the defense motion on Sept. 6, the day before jury selection is set to begin in the trial of the Bundy brothers and other occupation leaders.