Ted Kang, partner in the firm’s Litigation & Trial Practice Group, was quoted in a Washington Post article discussing the recent disclosure that a specialized unit at the DEA has concealed its use of NSA surveillance data to further criminal investigations, and the potential impact that this disclosure could have on pending and future prosecutions.
According to the article, prosecutors could have a tactical advantage not to reveal their surveillance assets as a result of two landmark Supreme Court cases decided decades ago. In Roviaro v. United States, the Supreme Court decided that the government must disclose the identity of an undercover witness if doing so is relevant and helpful to the defendant. The case of Brady v. Maryland established that if the prosecution deliberately held evidence that helped the defendant, it would be a violation of due process, which may cause the case to be thrown out.
Kang said that the security agency’s intelligence could be analogous to the relevant and helpful testimony provided by the confidential informant in Roviaro. Kang noted that the government might argue that releasing the information would harm national security, but if a judge orders that it be handed over by reference to Roviaro or Brady, the prosecution would have to comply.
“If the government fails to make that disclosure,” said Kang, “the defense could potentially move to dismiss the indictment either for failing to turn over exculpatory material under Brady—because one of the remedies that a court can consider for Brady violations is dismissal of the indictment—or due process under a theory that the government has exhibited outrageous conduct.”
“If the DEA is hiding the source of its investigative leads from the public, are they also hiding it from the judges whose job it is to approve further surveillance?” Kang asked.
“If it’s done knowingly and intentionally, then that’s a criminal offense for making a false statement to a judicial officer. That could also be a separately punishable felony offense, or viewed in the context of civil or criminal contempt,” Kang said.
According to the article, prosecutors could have a tactical advantage not to reveal their surveillance assets as a result of two landmark Supreme Court cases decided decades ago. In Roviaro v. United States, the Supreme Court decided that the government must disclose the identity of an undercover witness if doing so is relevant and helpful to the defendant. The case of Brady v. Maryland established that if the prosecution deliberately held evidence that helped the defendant, it would be a violation of due process, which may cause the case to be thrown out.
Kang said that the security agency’s intelligence could be analogous to the relevant and helpful testimony provided by the confidential informant in Roviaro. Kang noted that the government might argue that releasing the information would harm national security, but if a judge orders that it be handed over by reference to Roviaro or Brady, the prosecution would have to comply.
“If the government fails to make that disclosure,” said Kang, “the defense could potentially move to dismiss the indictment either for failing to turn over exculpatory material under Brady—because one of the remedies that a court can consider for Brady violations is dismissal of the indictment—or due process under a theory that the government has exhibited outrageous conduct.”
“If the DEA is hiding the source of its investigative leads from the public, are they also hiding it from the judges whose job it is to approve further surveillance?” Kang asked.
“If it’s done knowingly and intentionally, then that’s a criminal offense for making a false statement to a judicial officer. That could also be a separately punishable felony offense, or viewed in the context of civil or criminal contempt,” Kang said.