Motion Point 4: Unfair Advantage

I consider the main issue to be whether the monitored communications were legally turned over to the U.S. Attorney's Office. Most of us are aware that an inmate in a federal facility has minimal right to privacy and when a person signs-up for a Corrlinks account to exchange emails with an inmate, they are acknowledging that the communications are monitored and by clicking the "accept" button, they're accepting this.

The Bureau of Prisons (BOP) monitors every form of inmate communication, from snail-mail letters to telephone calls to emails. The inmate has no right to privacy from the BOP. The party communicating with the inmate may read the Corrlinks FAQ section and No. 9 states:

Are my messages monitored?

The institution housing an inmate determines its need for monitoring messages, letters and other communication. If desired, the institution may monitor any or all messages for any or all inmates. CorrLinks staff does not monitor your messages but may need to assist the institution in such monitoring from time to time.

The problem lies in who is given these communications and how they're used. BOP monitors for the purpose of security and maintaining order in the institution. This is clear and understandable. However, is it legal for BOP to turn those communications over to other government agencies when there is no mention or evidence of any sort of crime?

In the case of Ana DeStefano, her communications with Paul Bergrin were turned over to the government to be used as potential impeachment material. Both Ms. DeStefano and Bergrin were unaware that their personal communications would be used by the government. Keep in mind that there was nothing illegal or in any way related to a crime in the communications and they were very personal. Clearly Ms. DeStefano was shocked that AUSA John Gay used the communications to assist his questioning of her when she testified.

Was it legal for the government to make such use of Ms. DeStefano's personal communications? Did BOP turn all communications over as the result of an ex parte court order, or are all forms of communications sent to the US Attorney's Office and the FBI?

In the situation of Lemont Love, his communications with an outside party (his younger brother) were turned over to the government for the purpose of impeachment (or attempted impeachment) in this trial. Mr. Love is in a New Jersey State prison. Does he have a lawsuit or is it absolutely legal for the State of NJ to turn over his communications to any government agent that asks? Was there an ex parte order that the defense was unaware of?

Doesn't such a practice give the government an unfair advantage at trial? If the US Attorney's Office and the FBI received all of Bergrin's communications prior to trial, they already knew the entire defense strategy. When one side is aware of every move the other side intends to make in advance, that is the definition of unfair advantage.

Finally, did the government have any obligation to disclose the use of the monitored communications prior to the defense witness testimony?

It is entirely possible that these questions will end-up with the SCOTUS. There is no clear precedent or applicable law from what I have been told.

Read the entire Motion: Motion for Reconsideration

IV. THE GOVERNMENT’S UNAUTHORIZED ACCESS TO AND MONITORING OF BERGRIN’S COMMUNICATIONS WITHOUT A COURT ORDER WERE IMPROPER AND CAUSED ACTUAL AND EXTREME PREJUDICE TO BERGRIN’S DEFENSE.

The government's use and abuse of electronic surveillance in the seizure of Bergrin's emails and telephone conversations, while incarcerated at the Metropolitan Detention Center, Brooklyn, New York clearly violated the Department of Justices’ Electronic Surveillance Manual and Title III of the Wire Intercept Act as well as the auspices and spirit of the Fourth Amendment prohibition against unreasonable search and seizures.

Inmates consent to the screening of telephone conversations and emails while detained within the Bureau of Prisons. This consent, however, is not limitless. It is implicitly understood that interception and monitoring is for security purposes only. These communications are not intended to provide the prosecution with unfettered access to an inmate’s personal and legal communications. The purpose of the monitoring, and consenting to the monitoring, is not to give the prosecution a means to gather evidence for impeachment purposes. Nor is the monitoring intended to be used to scrutinize defense strategies and gather intelligence to determine defense posture in the defense of charges. Moreover, it is improper to use this information to detrimentally affect the defense’s case. Yet, that is precisely what the Government did in this case.

The detention of an inmate, especially a pro se defendant, by its very nature inhibits case preparation and detrimentally affects the ability to prepare a defense. It deleteriously precludes a defendant from properly preparing his case, affects one's ability to properly prepare witnesses for testimony, stymies the ability to concentrate fully on the legal and factual aspects of the defense, and limits the ability to review discovery and fully research issues. The time allotted for case preparation is materially affected and Sixth Amendment rights are extremely hampered. A pro se incarcerated inmate does not have the same opportunities and ability to attain an equivalent level of preparedness as the government as he has diminished resources and assistance.

Consequently, inmates rely on the ability to effectively communicate by use of the telephone and email with co-counsel, paralegals, investigators, experts, family and friends. In sum, Defendants materially use emails and the telephone to foster case preparation. It is impossible to prepare a case for trial without material reliance on them.

The Department of Justice policy is that, in the event that a telephone conversation, monitored routinely by prison officials for the purpose of prison security, is found to contain information relating to the violation of law, prison officials may disclose that information to the proper law enforcement authorities for prosecution. Law enforcement authorities outside the Bureau of Prisons are not supposed to be given carte blanche and unfettered access to an inmate’s monitored telephone calls and electronic communications. In the cases when outside law enforcement agencies ask the Bureau of Prison officials to monitor and disclose future telephone and electronic communications of specific inmates in connection with a criminal investigation being conducted of activities outside the confines of the prison, not affecting prison security or administration, this monitoring is only properly conducted when an interception order has been procured under the authority of Title III.2

In the case sub judice, the government obtrusively, and in contravention of Bergrin's Fourth Amendment, Constitutional and due process rights, seized all of Bergrin's e mails and telephone conversations, without judicial authorization or prior notice to Bergrin. The communications were devoid of any security issues to the Bureau of Prisons and did not contain any indicia of law violations. The seizure paralyzed Bergrin's ability to communicate with Stand-By-Counsel, enabled the government to obtain advance notice of defense trial strategy and the scope and substance of defense investigation and was done with for no other purpose than to unjustly and unfairly obtain impeachment materials for use at trial. It also enabled the government to further the course of its investigation and to prepare their witnesses to counter the defense case. All matters that weighed heavily in the outcome of the trial and gave the government unfair advantage; especially since Bergrin was a Pro Se litigant whom relied heavily on communicating with his defense team, telephonically and through the use of the email system. The prejudice suffered by Bergrin and his case as the result of the government's actions was extremely detrimental. It resulted in denying Bergrin a fair trial.

The extent of the monitoring, how the Government used this information to counter the defense’s strategy and impede the defense’s investigation and trial preparation, and whether other actions were taken to interfere with the defense must be ascertained to determine the full impact on Bergrin’s due process rights and, in particular, whether acts prejudicial to the administration of justice were engaged in by members of the Department of Justice.

Accordingly, the defense respectfully requests that this Honorable Court Order a hearing to compel the government to provide a copy of all communications seized and in its possession, disclose the manner in which the Government seized these communications and the extent to which they were used. Moreover, it is respectfully requested that, if the government obtained telephone conversations and mails of defendant, which included legal communications with members of the defense trial team, that this Court find that defendant's Due Process and Sixth Amendment rights were violated, set aside the verdict and dismiss the Indictment.

I thank the Court for its thoughtful consideration of these issues.