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In court documents filed Monday, prosecutors in the upcoming Malheur refuge trial detailed their version of what happened surrounding Facebook evidence they mishandled.
“Due to an issue in the discovery process, the government inadvertently provided 11 Facebook accounts in their entirety to all defendants in Volume 39 of discovery,” Assistant U.S. Attorney Scott Bradford wrote in a memo to the court.
The 17-page document, along with several sworn statements from FBI agents and employees in the U.S. Attorney’s Office in Portland, were filed in response to an order from U.S. District Court Judge Anna Brown.
Despite calling witnesses at a hearing last week, Brown said the government’s explanation of what transpired was ultimately inadequate. Following that hearing, Brown reversed an earlier order that effectively allows the defense to re-argue why Facebook evidence should not be part of the evidence at trial.
Eight defendants are scheduled to go to trial Sept. 7. The government has accused them of conspiring to prevent federal employees from doing their jobs at the Malheur National Wildlife Refuge near Burns, Oregon.
“While inadvertent, the disclosure of the 11 Facebook accounts to all defendants did not violate the Fourth Amendment, the terms of the warrant or any order from this Court,” Bradford wrote. “Accordingly, the government properly executed the warrant.”
But defense attorneys have questioned that, arguing the warrant was too broad to begin with and the government essentially violated the search warrant when it mishandled the data during the discovery process.
In his memo, Bradford named Doug Angel, an automated litigation support specialist in the U.S. Attorney’s Office in Portland, as the potential person who created the error.
Angel served on what’s called a “filter team” — a group of people who sift through the raw data before a separate team of trial prosecutors gets the information. At last week’s hearing the government said the procedure ensures only the information outlined in a given search warrant is seen by the prosecutors who will argue a case in court.
Angel’s work was overseen by Assistant U.S. Attorney Michelle Holman Kerin, who ran the filter team.
“Doug Angel was involved in the Facebook filter process as the individual who physically separated privileged materials from non-privileged materials,” Bradford wrote. “He created privileged and non-privileged folders for the Ammon Bundy and Bundy Ranch accounts and, thereafter, burned the potentially privileged material to a disk to give to defense counsel.”
That information was given to Rena Rallis, an automated litigation support specialist working with prosecutors. She then uploaded that information to a shared network, where occupier David Fry’s defense attorney, Per Olson, discovered the government had shared private information as part of discovery.
Bradford noted in his memo that none of the defendants going to trial next month are among the 11 accounts that had information shared. He also said members of the prosecuting team did not see any of the private information.
“Regardless, the government acted in good faith and wholesale suppression is not required,” Bradford wrote.
Monday’s filings also detail how the FBI originally gathered the data it sent to the U.S. Attorney’s Office for review.
Once Facebook had released the requested data in the warrant, FBI Special Agent Matthew Heimstra and other members of the Domestic Terrorism Operations Unit downloaded the information. They used a software program to query the data for potentially responsive items.
Heimstra and his team used search terms like “kill,” “boots on the ground,” “Malheur,” “call to arms,” “Operation Hammond Ranch” and many more to sift through the Facebook evidence.
Defense attorneys will file a motion by Thursday in response to the prosecutor’s account of events. They’re expected to argue why the judge should keep Facebook evidence out of the September trial.