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with persons known or unknown to the grand jury. However, the factual proffer, and indeed
the only agreement alleged, commences in September of 2012.4 Count Three of the Indictment
alleges a date range between March 5, 2012 and September 12, 2012. Contrary to the time
period alleged in the indictment for all three Counts, the alleged factual conduct in support of the
Counts commences on September 4, 2012.
On July 1, 2013, Mr. Brown requested bill of particulars from the government seeking
specificity as to what, if any, additional steps or threats were alleged in the devoid period. The
government responded by indicating that the indictment, in combination with discovery
furnished the defense, provided sufficient specificity. However, counsel s review of discovery
has not identified any such statements or other evidence.
4
The indictment further alleges that Mr. Brown specifically requested another person known to
the grand jury to assist him find on the Internet restricted information about RS and his family
and that person subsequently conducted a search.
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As such, to the extent the Court finds that the indictment is sufficient to charge either
Count One or Three, and notwithstanding a provision of a bill of particulars to indicate
otherwise, the conduct should be limited that which occurred between September 10, 2012 to
September 12, 2012. In addition, the Court should direct the government to strike the phrase
between March 6, 2012 from Count One, and between March 5, 2012 from Count Three.
This corresponds to the only references to the alleged victim [RS] in the indictment s factual
proffer. Absent such limitation, the government would be free to produce evidence at trial
supporting threats allegedly made by Mr. Brown against the FBI and agent RS for which Mr.
Brown has received no notice and would be unprepared to meet.
Similarly, to the extent the Court finds the indictment sufficient to charge Count Two, the
conduct should be limited to that which occurred after September of 2012. In addition, the
government should not be permitted to use known and unknown persons as a catchall phrase in
the indictment. Marsh v. United States, 344 F.2d 317, 322 (5th Cir. 1965)(A district court may
strike terms such as and other from an indictment rather than require a bill of particulars for
such phrases.) United States v. Freeman, 619 F.2d 1112, 1118 (5th Cir. 1980)(courts should
strike language such as including but not limited to as surplusage.)
Thus, if the government wishes to allege that Mr. Brown conspired with multiple persons
outside of September 1, 2012 until September 12, 2012, then it should be required to present the
persons and times in a bill of particulars. Otherwise, the Court should direct the government to
strike the phrase Between March 5, 2012 and other persons known and known to the grand
jury.
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CONCLUSION
For the reasons set forth above, the Mr. Brown respectfully request that the Court
dismiss the indictment, or in the alternative strike surplusage.
Respectfully submitted,
-s- Ahmed Ghappour .
AHMED GHAPPOUR
Pro Hac Vice
Civil Rights Clinic
University of Texas School of Law
727 East Dean Keeton St.
Austin, TX 78705
415-598-8508
512-232-0900 (facsimile)
aghappour@law.utexas.edu
CHARLES SWIFT
Pro Hac Vice
Swift & McDonald, P.S.
1809 Seventh Avenue, Suite 1108
Seattle, WA 98101
206-441-3377
206-224-9908 (facsimile)
cswift@prolegaldefense.com
MARLO P. CADEDDU
TX State Bar No. 24028839
Law Office of Marlo P. Cadeddu, P.C.
3232 McKinney Ave., Suite 700
Dallas, TX 75204
214.744.3000
214.744.3015 (facsimile)
mc@marlocadeddu.com
Attorneys for Barrett Lancaster Brown
CERTIFICATE OF SERVICE
I certify that today, January 31, 2014, I filed the instant motion using the Northern
District of Texas s electronic filing system (ECF) which will send a notice of filing to all counsel
of record.
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Case 3:12-cr-00317-L Document 98 Filed 01/31/14 Page 14 of 14 PageID 755
/s/ Ahmed Ghappour
AHMED GHAPPOUR
/s/ Charles Swift
CHARLES SWIFT
/s/ Marlo P. Cadeddu
MARLO P. CADEDDU
Attorneys for Barrett Lancaster Brown
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