05082018 - News Article - UPDATE: Indicted Portage mayor calls federal prosecutors' latest filing in case 'baffling'

UPDATE: Indicted Portage mayor calls federal prosecutors' latest filing in case 'baffling'
NWI Times
May 08, 2018
http://www.nwitimes.com/news/local/crime-and-courts/update-indicted-portage-mayor-calls-federal-prosecutors-latest-filing-in/article_2a84f98f-cd99-5d58-a4f4-1a0efc14049b.html

HAMMOND — Federal prosecutors and indicted Portage Mayor James Snyder continued to take shots at each other Tuesday in filings in federal court.

Prosecutors accused Snyder of going on another "fishing expedition," this time by planning to call up to a dozen witnesses at Thursday's hearing, including Snyder's former attorney and now U.S. District Attorney Thomas L. Kirsch II.

Snyder called the government's claim "baffling" and questioned why they are just now objecting to information they were aware of for more than a week.

In a filing Tuesday afternoon, prosecutors asked for either a status conference or "further direction" from the court prior to the 10:30 a.m. hearing Thursday, which should determine whether federal prosecutors and investigators violated Snyder's Sixth Amendment rights by reading privileged emails.

Snyder is asking for the indictment to be dismissed, or that the prosecution team be disqualified if the judge finds his rights were violated.

That filing comes a day after Magistrate Judge John E. Martin ruled against Snyder's request for additional information ahead of the Thursday hearing.

According to documents filed in U.S. District Court on Monday, Martin wrote that Snyder's request for additional information regarding whether prosecutors had access to privileged emails was not relevant.

"None of the information being sought by defendant in the instant motion appears relevant to that question, and, as described above, he has not specifically described how any of the materials he seeks would prove his case," Martin wrote.

"It may be that Judge (Joseph) Van Bokkelen will determine that he needs more information to reach a decision about the constitutional question raised by defendant, and, if so, will order specific discovery at that time. But defendant has not explained in these briefs exactly what discovery he is still seeking from the government, or how those materials both fall within the scope of discoverable material and support his claim of constitutional violation."

Defense slates dozen witnesses for Thursday hearing
In Tuesday's filing, prosecutors said they have learned that Snyder's attorney, Jackie M. Bennett Jr., intends to call up to a dozen witnesses at Thursday's hearing, including Kirsch, two FBI agents, two assistant U.S. attorneys, two IRS agents, "a confidential human source," and four others, in response to Monday's ruling.

"Based on the above information, it appears to the government that defendant intends to attempt to accomplish through witness testimony what Magistrate Judge Martin denied him the opportunity to do via Rule 16 discovery: embark on a wide-ranging fishing expedition into areas that have no bearing on defendant’s guilt or innocence as to the crimes charged, and, as will be shown below, also have no legal relevance to the resolution of defendant’s motion to disqualify government counsel," Tuesday's filing by the U.S. attorney's office reads.

Bennett struck back in the later filing Tuesday afternoon, saying the government "now two days before that hearing seeks to drastically limit the hearing's scope. The government's tactic of having Snyder prepare for one hearing and then seeking to limit that hearing two days before is yet another illegitimate procedural tactic."

Bennett also accused the government of withholding information and releasing it in a "trickle," and attempting to "keep its conduct secret."

Prosecutors seek to clarify witnesses' testimony
Prosecutors also are asking for clarification before Thursday's hearing on whether the 12 witnesses will be called "to explore issues not germane to the court's ruling on the pending motion." Prosecutors contend that defense attorneys should not be allowed to question "the filter team members' deliberative process."

Bennett said he, too, would like to have a status conference, but wants the court to confirm that the hearing "is actually going to be an evidentiary hearing with the witnesses the government has already agreed to subpoena."

The document also reveals of the initial 35 emails in question, only three are relevant to issues likely to arise at the trial slated to begin June 4, and that only one of those will be added to the government's exhibit list. That email, according to a footnote on the filing, was retrieved from Assistant Street Superintendent Randy Reeder's personal email.

"A process entailing the review of tens of thousands of email messages that resulted in dispute as to only 35, only one of which the government may seek to use at trial, cannot, in any logical way, be branded as outrageous government conduct. Thus, any inquiry by the defense into the filter team members’ deliberative process (i.e., their legal analysis of any particular email) would be meaningless and should not be allowed," government prosecutors wrote.