Concord Witness Testimony

Case 1:18-cr-00032-DLF Document 241 Filed 11/11/19 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA, CRIMINAL NUMBER: v. 1:18-cr-00032-2-DLF CONCORD MANAGEMENT AND CONSULTING LLC, Defendant. DEFENDANT CONCORD MANAGEMENT AND CONSULTING LLC’S MOTION TO COMPEL COMPLIANCE WITH FED. R. CRIM. P. 16 Pursuant to Fed. R. Crim. P. 16, Defendant Concord Management and Consulting LLC (“Defendant” or “Concord”), by and through undersigned counsel, respectfully submits this Motion to Compel the government’s compliance with Federal Rule of Criminal Procedure 16(a)(1)(G). In support of this motion, Concord states as follows: Introduction Nineteen months after Concord first requested that the government provide notice of any expert testimony the government now says it has no experts at all, but instead fact witnesses who will testify about the internet, social media web sites, and government functions. That is the sum and substance of the notice the government provided to Concord, which in fact is no notice at all because of its scope and breadth. When undersigned counsel challenged the lack of fairness in this approach the government’s sententious solution was to put off the issue for two more months until the government produces its exhibits which will then, according to it, make ripe the issue of whether the government is complying with its legal obligations under Rule 16. But the government’s preferred approach puts Concord two months closer to trial without any ability whatsoever to prepare to address proposed testimony based on specialized knowledge the 1 Case 1:18-cr-00032-DLF Document 241 Filed 11/11/19 Page 2 of 7 substance of which should be disclosed now. This is simply one more government tactic of trial by surprise, and the Court should not allow it. Facts Concord originally requested that the government comply with Fed. R. Crim. P. 16(a)(1)(G) by providing notice of expert testimony on April 11, 2018. Ex. 1, April 11, 2018 Letter from E. Dubelier to J. Rhee. Concord raised this issue at the March 7, 2019 hearing, Mar. 7, 2019 Hr’g Tr. 41:20-42:10 and 72:12-16, and followed up with the government via email on March 11, 2019, Ex. 2, March 11, 2019 email from E. Dubelier to J. Kravis. The government did not respond and undersigned counsel followed up again on April 1, 2019 and April 11, 2019. Ex. 3, April 2019 email exchange. On April 12, 2019, the government stated that it intends to introduce evidence related to reports produced in discovery regarding how accounts allegedly controlled by the co-conspirators were identified, but that it had not yet decided whether that evidence would be introduced through an expert witness or through lay witness testimony. Id. The government finally responded by letter on November 1, 2019. Ex. 4, Nov. 1, 2019 Letter. The government states in relevant part that it intends to call witnesses to testify “regarding topics that may be unfamiliar to jurors,” including but not limited to, “the Internet, social media websites, and the role of particular government agencies.” Id. The parties held a telephonic meet and confer on November 6, 2019, during which the government continued to maintain that the above topics will be covered by fact witnesses, not expert witness and, as such, the government is not obligated to provide further notice or any disclosure of the substance of the testimony. The government proposed delay resolution of this issue until after it provides its exhibit list in January 2020. See Ex. 5, November 5, 2019 Email from K. Rakoczy to E. Dubelier. 2 Case 1:18-cr-00032-DLF Document 241 Filed 11/11/19 Page 3 of 7 Law and Argument Rule 16 provides that “[a]t the defendant’s request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. . . . The summary provided under this subparagraph must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.” Fed. R. Crim. P. 16(a)(1)(G). Federal Rule of Evidence 702 governs testimony by expert witnesses and permits a witness who is qualified by knowledge, skill, experience, training, or education to testify “in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. By its very language, Rule 702 is not limited to opinions; rather, it includes any testimony based on “specialized knowledge,” and thus applies regardless of “whether [the testimony] is limited to facts or includes the expert’s opinion.” United States v. Mosley, 339 F. App’x 568, 573 (6th Cir. 2009); see also Fed. R. Evid. 702, Adv. Comm. Note (“Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts.”). “Where testimony is based on specialized knowledge within the scope of Rule 702, it has to comply with some safeguards of expert testimony, which include a requirement that such testimony be disclosed to the defendant prior to trial.” United States v. Jones, 739 F.3d 364, 368 (7th Cir. 2014) (citing United States v. York, 572 F.3d 415, 421 (7th Cir. 2009)). 3 Case 1:18-cr-00032-DLF Document 241 Filed 11/11/19 Page 4 of 7 Rule 701, by contrast, limits lay opinion testimony to situations which are “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701 (emphasis added). Put another way, Rule 701 makes sure that litigants do not try to “proffer[] an expert in lay witness[] clothing and thereby avoid the disclosure and other requirements for expert opinion testimony under FRE 702.” United States v. Williams, 827 F.3d 1134, 1156 (D.C. Cir. 2016); see also Fed. R. Evid. 701 Adv. Comm. Notes (recognizing that the 2000 amendment was an attempt “to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing”); United States v. Philip Morris USA, Inc., No. 992496 (GK), 2004 WL 5916877, at *1 (D.D.C. Aug. 17, 2004) (excluding, in part, lay witness testimony that was, in fact, expert testimony under Rule 702). The dividing line between true expert testimony under Rule 702 and lay testimony under Rule 701 is based “‘on the reasoning process by which a witness reached his proffered opinion. If the opinion rests in any way upon scientific, technical, or other specialized knowledge, its admissibility must be determined by reference to Rule 702, not Rule 701.’” Williams, 827 F.3d at 1160 (quoting United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005)). “[A]ny part of a witness’ testimony that is based upon scientific, technical, or other specialized knowledge within the scope of Rule 702 is governed by the standards of Rule 702 and the corresponding disclosure requirements of the Civil and Criminal Rules.” Fed R. Evid. 701 Adv. Comm. Notes. The failure to enforce this boundary on lay-opinion testimony can be the basis for reversible error. See United States v. Hampton, 718 F.3d 978, 983 (D.C. Cir. 2013) (recognizing that allowing a government agent to testify as a lay opinion witness runs the risk of “induc[ing] the jury to trust the 4 Case 1:18-cr-00032-DLF Document 241 Filed 11/11/19 Page 5 of 7 Government’s judgment rather than its own view of the evidence”) (internal quotation marks omitted). Courts have required government witnesses who testify about technology that is beyond the common understanding of the jury to meet the heightened standard in Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See SEC v. Johnson, 525 F. Supp. 2d 66, 69-70 (D.D.C. 2007) (testimony about internet marketing and e-commerce met Rule 702 requirements); see also United States v. Machado-Erazo, 950 F. Supp. 2d 49, 51 (D.D.C. 2013) (testimony about cellular tower location analysis met Rule 702 requirements); United States v. Bradbury, No. 14 CR 71 PPS, 2015 WL 4627018, at *1 (N.D. Ind. July 31, 2015) (testimony about the general behavior of social media users met Rule 702 requirements). Similarly, proffered testimony about the role of government agencies and how they interact with those subject to regulation have similarly been qualified as expert witnesses. See Adams v. United States, No. CV-03-49-E-BLW, 2009 WL 1085481, at *3 (D. Idaho Apr. 20, 2009) (“Applying these principles [to the proffered experts], the Court finds proper their testimony . . . about the general roles of the EPA, the registrant, and the state in the registration process for pesticides; [and] the general regulatory framework set up by FIFRA . . . ”); see also United States v. Carrillo-Morones, 564 F. Supp. 2d 707, 711-12 (W.D. Tex. 2008) (“Testimony regarding law enforcement protocols and evidence gathering is the product of specialized knowledge and thus, constitutes expert testimony under Rule 702.”). While the government’s letter contains no details that would allow Concord to prepare to respond to this testimony or exhibits, the government conceded that the testimony it intends to introduce will be outside the scope of knowledge of the jury. See Ex. 4. If the government had looked at the case law instead of just seeking an improper tactical advantage it would have seen that testimony as it relates to the internet and social media is sufficiently “technical” that it falls 5 Case 1:18-cr-00032-DLF Document 241 Filed 11/11/19 Page 6 of 7 within the scope of Rule 702. See, e.g., Johnson, 525 F. Supp. 2d at 69-70. The same is true of testimony regarding the regulatory function of government agencies. See, e.g. Adams, 2009 WL 1085481, at *3. Put simply, this is specialized knowledge that must be presented to the jury through a qualified expert witness. See Fed. R. Evid. 702. And, to the extent the government intends to use these purported witnesses to explain, for example, how people use the internet or social media to interfere with government functions, that too involves “specialized knowledge” that is subject to Rule 702. See United States v. Shepard, 188 F.R.D. 605, 607-08 (D. Kan. 1999) (discussing how law enforcement testimony about the nature of criminal conduct “calls upon specialized knowledge and does not relate to matters common enough to qualify as lay opinion testimony” (internal quotation marks omitted)). In sum, the government is seeking to circumvent its obligations under Rule 16(a)(1)(G) by simply characterizing its witnesses as fact witnesses, when doing so is contrary to law, and is nothing more than an effort to “proffer[] an expert in lay witness clothing.” Fed. R. Evid. 701 Adv. Comm. Note. Nor can it avoid its Rule 16 obligations by stating that the witnesses will not offer an “opinion,” because “Rule 702 is not so limited and is intended to cover so-called skilled witnesses,” which is exactly the type of evidence identified in its letter. See United States v. Bidloff, 82 F. Supp. 2d 78, 82 (W.D.N.Y. 1999), report and recommendation adopted, 82 F. Supp. 2d 86 (W.D.N.Y. 2000) (internal quotation marks omitted). The government should be compelled to provide the names and written summaries required under Rule 16 for any testimony that it intends to use during its case-in-chief that is based on scientific, technical, or other specialized knowledge about any topic that may be unfamiliar to jurors, including but not limited to testimony regarding the internet, social media websites, and the role of particular government agencies. 6 Case 1:18-cr-00032-DLF Document 241 Filed 11/11/19 Page 7 of 7 Dated: November 11, 2019 Respectfully submitted, CONCORD MANAGEMENT AND CONSULTING LLC By Counsel /s/Eric A. Dubelier Eric A. Dubelier (D.C. Bar No. 419412) Katherine Seikaly (D.C. Bar No. 498641) REED SMITH LLP 1301 K Street, N.W. Suite 1000 – East Tower Washington, D.C. 20005 202-414-9200 (phone) 202-414-9299 (fax) edubelier@reedsmith.com kseikaly@reedsmith.com 7 Case 1:18-cr-00032-DLF Document 241-1 Filed 11/11/19 Page 1 of 6 Exhibit 1 To Defendant Concord Management and Consulting LLC’s Motion to Compel Compliance with Fed. R. Crim. P. 16 Case 1:18-cr-00032-DLF Document 241-1 Filed 11/11/19 Page 2 of 6 Eric A. Dubelier Direct Phone: +1 202 414 9291 Email: edubelier@reedsmith.com Reed Smith LLP 7900 Tysons One Place Suite 500 McLean, VA 22102-5979 Tel +1 703 641 4200 Fax +1 703 641 4340 reedsmith.com April 11, 2018 Via Electronic Mail Jeannie Sclafani Rhee United States Department of Justice Special Counsel’s Office 950 Pennsylvania Avenue, NW Washington, DC 20005 Re: DLF United States v. Concord Management and Consulting LLC, Case Number 1:18-cr-00032- Dear Ms. Rhee: This letter constitutes the initial discovery request on behalf of our client Concord Management and Consulting LLC (“Concord”). We intend to supplement this letter as necessary. In accordance with the Federal Rules of Criminal Procedure, the Federal Rules of Evidence, Local Criminal Rules, applicable federal statutes, cases and constitutional requirements, we ask the government to furnish or permit discovery, inspection and the right to copy the following materials in the possession, custody or control of the government, and/or the existence of which is known or by the exercise of due diligence may become known to the government. A. Rule 16 Requests 1. All written or recorded statements, or copies thereof, made by any owner, officer, agent or employee of Concord. This request calls for discovery of written or recorded statements as well as recordings of conversations by any means, including stenographically, mechanically, or by an electronic recording device, whether made before or after the indictment, and whether in response to interrogation or not. The term “statements” encompasses statements in whatever form preserved, including agents’ rough notes. 2. That portion of all written records containing the substance of any oral statement or utterance made by any owner, officer, agent or employee of Concord, whether before or after indictment, in response to interrogation by any person then known to be a government agent - without regard to whether the prosecution intends to use the statement at trial. 3. Any recorded testimony of any owner, officer, agent or employee of Concord that relates to the offenses charged, whether at a deposition before a governmental agency, entity or instrumentality, ABU DHABI  ATHENS  BEIJING  CENTURY CITY  CHICAGO  DUBAI  FRANKFURT  HONG KONG  HOUSTON  KAZAKHSTAN  LONDON  LOS ANGELES  MIAMI  MUNICH NEW YORK  PARIS  PHILADELPHIA  PITTSBURGH  PRINCETON  RICHMOND  SAN FRANCISCO  SHANGHAI  SILICON VALLEY  SINGAPORE  TYSONS  WASHINGTON, D.C.  WILMINGTON EME_ACTIVE-568985716.1 Case 1:18-cr-00032-DLF Document 241-1 Filed 11/11/19 Page 3 of 6 April 11, 2018 Page 2 4. The substance of any other relevant oral statement made by any owner, officer, agent or employee of Concord, whether before or after indictment, in response to interrogation by any person then known by any owner, officer, agent or employee of Concord to be a state or federal government agent if the government intends to use that statement at trial. This requested disclosure covers oral statements as to which there is no written record so long as the prosecution intends to make some use of the statement at trial, even if only for impeachment purposes. 5. Any books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defense. 6. Any books, papers, documents, photographs, tangible objects, buildings or places, or copies of portions thereof which are within the possession, custody or control of the government, and which are intended for use by the government as evidence in chief at trial. 7. Any books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which were obtained from or belonged to Concord, or any owner, officer, agent or employee thereof. 8. Any books, papers, documents, photographs, tangible objects, buildings, or places or copies thereof, which are within the possession, custody or control of the government, that (a) are referred to in the indictment; (b) relate to any statement of fact in the indictment; (c) relate to any element of the offenses set forth in the indictment; (d) constitute the fruits of or means of perpetrating any of the offenses set forth in the indictment; (e) relate to the involvement of uncharged participants in the alleged conspiracy. 9. All results or reports of physical or mental examinations and of scientific tests or experiments, or copies thereof, which are: (a) material to the preparation of the defense; (b) intended for use by the government as evidence in chief at trial; or (c) which were prepared by a witness whom the government intends to call at the trial when the results or reports relate to that witness’s testimony. 10. A written list of the names, addresses and qualifications of all experts the government intends to call as witnesses at trial, together with all reports made by such experts, or if reports have not been made, a written summary of the opinion and subject matter of the opinion to which each is to testify, and the bases and reasons therefor. 11. Please provide reasonable notice in advance of trial of the general nature of any evidence of “other crimes, wrongs, or acts” the prosecution intends to use at trial, under Rule 404(b). Case 1:18-cr-00032-DLF Document 241-1 Filed 11/11/19 Page 4 of 6 April 11, 2018 Page 3 B. Rule 12 Requests As a predicate to motions pursuant to Federal Rule of Criminal Procedure 12, the government is requested to turn over to defense counsel and to disclose: 1. From 1945 to present, each and every instance where any officer, employee and/or agent of the United States Government engaged in operations to interfere with elections and political processes in any foreign country; including but not limited to information relating to whether any such activity utilized propaganda in any format, including but not limited to the use of social media. This disclosure should include any and all information regarding the use of computer infrastructure inside and outside of the United States, false foreign identities, goals to sow discord in a foreign political system, assistance to a foreign elected official or candidate, attacks on a foreign elected official or candidate, assassination or conspiracy to assassinate a foreign elected official or candidate, buying political advertisements, posing as foreign persons and/or failure to honestly identify to foreign voters the involvement of any officer, employee or agent of the United States Government. 2. From 1945 to present, each and every instance where any United States or foreign person has been charged by the government with violating 18 U.S.C. 371, for allegedly impairing, obstructing and defeating lawful governmental functions of the United States by dishonest means in order to interfere with the United States’ political and electoral processes. 3. Any documents reflecting or relating to any wire communications or oral communications intercepted by state or federal law enforcement authorities, to which any owner, officer, agent or employee of Concord was a party, or during which any such owner, officer, employee or agent was present. 4. Whether any evidence or information in the government’s possession, custody, or control was obtained by search and seizure, electronic surveillance, a beeper or other tracking device, a pen register or a mail cover from the defendant or its premises, together with a description of such evidence, all applications and affidavits submitted in support thereof, all court orders in connection therewith, and all inventory orders, inventories and reports of service thereof. C. Jencks Material For the purpose of meeting the government’s obligation to produce certain “statements” under 18 U.S.C. § 3500 (Jencks Act), Federal Rule of Criminal Procedure 26.2, and Brady v. Maryland, 373 U.S. 83 (1963), we request that any and all handwritten or informal notes of witness interviews be preserved. In order to move this case as expeditiously as possible, it is requested that required “statements” be provided as far in advance of trial as possible. Case 1:18-cr-00032-DLF Document 241-1 Filed 11/11/19 Page 5 of 6 April 11, 2018 Page 4 D. Brady Requests Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, including United States v. Agurs, 427 U.S. 97 (1976), and Giglio v. United States, 405 U.S. 150 (1972), defendants request disclosure of all exculpatory or impeaching material in the government’s possession, custody, or control or otherwise known to the government, including, without limitation: 1. The identity of any informant who was a participant in any transaction related to the subject of the indictment, and any and all records or other information related to applications by, promises made to, and payment or other things of value provided to any such informant/cooperating source, including any such records or information contained in the files of any law enforcement agency, or other federal agency. 2. Any and all records and information revealing prior criminal convictions of each witness the government intends to call at trial. 3. Any and all records and information revealing prior or subsequent misconduct, criminal acts or bad acts of any witness the prosecutor intends to call at trial. 4. Any and all considerations or promises of consideration given or suggested during the course of the investigation and preparation of this matter by any law enforcement officials, including prosecutors or agents, police, or informers, to or on behalf of any witness the government intends to call at trial, or any such consideration or promises solicited, expected or hoped for by any such witness at any future time. Such “considerations” refer to anything which arguably could be of value or use to a witness, including but not limited to all promises, understandings or agreements - formal or informal for leniency, favorable treatment or recommendations, or other assistance with respect to any pending or potential criminal, parole, probation, pardon, clemency, civil, administrative, regulatory, or other matter involving the state or federal government, any other authority, or other parties; civil, criminal, or tax immunity grants; relief from forfeiture; payments of money, rewards or fees, witness fees and special witness fees; provisions of food, clothing, transportation, legal services or other benefits; placement in a “witness protection” program; informer status of the witness; letters to anyone informing the recipient of the witness’s cooperation; recommendations concerning federal aid or benefits; recommendations concerning licensing, certification or registration; recommendations concerning ingress to and egress from the United States; promises to take affirmative action to help the status of the witness in a profession, business or employment or promises not to jeopardize such status; aid or efforts in securing or maintaining the business or employment of a witness; aid or efforts on behalf of the witness’s family; and anything else which arguably could reveal an interest, motive or bias in the witness in favor of the prosecution or against any defendant or act as an inducement to testify or to color his testimony. 5. Any written or oral statements, whether or not reduced to writing, made by any person which in any way reasonably or conceivably contradicts or is inconsistent with or different from the testimony or expected testimony of such person or any other person the government intends to call as a Case Document 241-1 Filed 11/11/19 Page 6 of 6 ReedSmith April 11, 2018 Page 5 witness at trial, or which otherwise re?ect upon the credibility, competency, bias or motive of any prosecution witness. We are available to confer with you with a view to completing the discovery aspect of this case in an ef?cient and expeditious manner. Very truly yours, . ?22/ 5c Eric A. Dubelier Case 1:18-cr-00032-DLF Document 241-2 Filed 11/11/19 Page 1 of 2 Exhibit 2 To Defendant Concord Management and Consulting LLC’s Motion to Compel Compliance with Fed. R. Crim. P. 16 Case 1:18-cr-00032-DLF Document 241-2 Filed 11/11/19 Page 2 of 2 From: Sent: To: Cc: Subject: Dubelier, Eric A. Monday, March 11, 2019 8:52 AM Kravis, Jonathan (USADC); Seikaly, Kate J Rakoczy, Kathryn (USADC); Curtis, Deborah (USADC); Jones, Luke (USADC); Jeannie Rhee ); Rush Atkinson ) Concord / Rule 16 (a)(1 )(G) Jonathan : Prior to the USAO and DOJ joining the case we requested in writing that the SCO provide testimony summaries pursuant to Rule 16(a)(l)(G). As with every request we have made to the SCO we received no written reply. As I mentioned in the hearing last week the discovery contains technical reports regarding how certain companies identified suspect accounts allegedly operated by IRA. Can you please let us know if the government intends to provide testimony summaries regarding these reports, or in the alternative whether you (1) do not intend to use any such evidence at trial, and/or (2) you maintain that any such evidence does not fall within the provisions of Rule 16(a)(l)(G). Thanks, Eric Eric A. Dubelier 202-414-9291 edubelier@reedsmith.com Reed Smith LLP 1301 K Street, N.W. Suite 1100 - East Tower Washington, D.C. 20005 202-414-9200 Fax 202-414-9299 1 Case 1:18-cr-00032-DLF Document 241-3 Filed 11/11/19 Page 1 of 3 Exhibit 3 To Defendant Concord Management and Consulting LLC’s Motion to Compel Compliance with Fed. R. Crim. P. 16 Case 1:18-cr-00032-DLF Document 241-3 Filed 11/11/19 Page 2 of 3 From: Sent: To: Cc: Subject: Kravis, Jonathan (USADC) <Jonathan.Kravis3@usdoj.gov> Friday, April 12, 2019 9:56 AM Seikaly, Kate J Dubelier, Eric A.;jsr@usdoj.gov; Curtis, Deborah (USADC); Rakoczy, Kathryn (USADC); Alpino, Heather (N SD) (JMD); Atkinson, Lawrence (CRM); Jones, Luke (USADC) RE: Concord EXTERNAL E-MAIU My apologies for not getting back to you on this sooner. I had been t ied up the last few w eeks trying to w ork out the details of the now -abandoned Concord employee review of sensitive discovery in the United States. Here are our responses to your inquiries: W ith respect to the materials identified in Eric's March 11, 2019 email, the government does intend to introduce evidence related to the reports about how the IRA accounts were identified. We have not yet decided whether that evidence w ill be introduced through an expert w itness or through lay witness testimony. We will certainly comply with any deadline for expert notice set by the Court as part of a pretrial scheduling order. W ith respect to your email dated March 12, 2019, the government is not aw are of any exculpatory evidence. As Concord has noted in its fi lings, including its motion to dismiss for failure to state an offense under 18 USC 371, the absence of certa in information from the target accounts (such as information reflecting an aw areness of the requ irements of the Federal Election Campa ign Act or the Foreign Agents Registration Act) cou ld be view ed as exculpatory. Thanks, Jonathan Jonathan Kravis Deputy Chief, Fraud and Public Corruption Section U.S. Attorney' s Office for the District of Columbia 202-252-6886 From: Seikaly, Kate J <KSeikaly@ ReedSmith.com> Sent: Thursday, April 11, 2019 2:31 PM To: Kravis, Jonathan (USADC) <JKravis1@usa.doj.gov> Cc: Dubelier, Eric A. <EDubelier@ReedSmith.com>; j sr@usdoj.gov; lra @usdoj.gov; Curtis, Deborah (USADC) <DCURTIS4@usa.doj.gov>; Rakoczy, Kat hryn (USADC) <KRakoczy2@usa.doj.gov> Subject: RE: Concord Jonathan, Can you please provide us with a date certain within the next week that we will have a response from you on the questions below? Thanks, Kate From: Kravis, Jonathan (USADC) <Jonathan.Kravis3@usdoj.gov> Sent: Tuesday, April 2, 2019 8:33 AM 1 Case 1:18-cr-00032-DLF Document 241-3 Filed 11/11/19 Page 3 of 3 To: Seikaly, Kate J <KSeikaly@ReedSmith.com> Cc: Dubelier, Eric A. <EDubelier@ReedSmith.com>; jsr@usdoj.gov; lra@usdoj.gov; Curtis, Deborah (USADC)  <Deborah.Curtis@usdoj.gov>; Rakoczy, Kathryn (USADC) <Kathryn.Rakoczy@usdoj.gov>  Subject: RE: Concord   EXTERNAL E‐MAIL I’ll get back to you on these.    Jonathan Kravis  Deputy Chief, Fraud and Public Corruption Section  U.S. Attorney’s Office for the District of Columbia  202‐252‐6886    From: Seikaly, Kate J <KSeikaly@ReedSmith.com> Sent: Monday, April 1, 2019 3:37 PM To: Kravis, Jonathan (USADC) <JKravis1@usa.doj.gov> Cc: Dubelier, Eric A. <EDubelier@ReedSmith.com>; jsr@usdoj.gov; lra@usdoj.gov; Curtis, Deborah (USADC)  <DCURTIS4@usa.doj.gov>; Rakoczy, Kathryn (USADC) <KRakoczy2@usa.doj.gov>  Subject: Concord   Jonathan, On March 11, Eric sent an email requesting that you let us know whether the government intends to provide testimony summaries pursuant to Rule 16(a)(1)(G) relating to technical reports contained in the discovery materials. On March 12, I sent an email requesting clarification of the government’s position regarding exculpatory information. We have not yet received responses to either of these requests. Will you please respond to both? Thanks, Kate Kate Seikaly 703.641.4231 kseikaly@reedsmith.com Reed Smith LLP 7900 Tysons One Place Suite 500 McLean, VA 22102-5979 +1 703 641 4200 Fax +1 703 641 4340   *** This E-mail, along with any attachments, is considered confidential and may well be legally privileged. If you have received it in error, you are on notice of its status. Please notify us immediately by reply e-mail and then delete this message from your system. Please do not copy it or use it for any purposes, or disclose its contents to any other person. Thank you for your cooperation. Disclaimer Version RS.US.201.407.01 2 Case 1:18-cr-00032-DLF Document 241-4 Filed 11/11/19 Page 1 of 2 Exhibit 4 To Defendant Concord Management and Consulting LLC’s Motion to Compel Compliance with Fed. R. Crim. P. 16 Case 1:18-cr-00032-DLF Document 241-4 Filed 11/11/19 Page 2 of 2 U.S. Department of Justice Jessie K. Liu United States Attorney District of Columbia Judiciary Center 555 Fourth St., N.W. Washington, D.C. 20530 November 1, 2019 Eric Dubelier, Esq. Katherine Seikaly, Esq. Re: U.S. v. Concord Management and Consulting, LLC, Case No. 18-CR-32-2 (DLF) Dear Counsel: At the trial of the above-captioned matter, the United States does not intend to introduce expert testimony pursuant to Federal Rule of Criminal Procedure 16(a)(1)(G), nor does it intend to introduce evidence pursuant to Rule 404(b) of the Federal Rules of Evidence. To be clear, the government does anticipate calling witnesses to testify regarding topics that may be unfamiliar to jurors. Examples of such topics include, but are not limited to: the Internet, social media websites, and the role of particular government agencies. It is the government’s position that such testimony will be admissible through fact witnesses. In addition, as you are aware, the government has obtained evidence in this case pursuant to legal process served on various electronic communications services providers and remote computing services providers. The government anticipates that a number of exhibits at trial will be derived from this evidence. It is the government position that such evidence will be admissible through the testimony of custodians of records and other fact witnesses. The government will provide its exhibit list on or before January 6, 2020, per the Court’s Scheduling Order [ECF No. 214]. Please do not hesitate to contact us if you have any questions about this information. Sincerely, /s/ Heather Alpino Trial Attorney National Security Division /s/ Jonathan Kravis Kathryn Rakoczy Luke Jones Assistant U.S. Attorneys 1 Case 1:18-cr-00032-DLF Document 241-5 Filed 11/11/19 Page 1 of 3 Exhibit 5 To Defendant Concord Management and Consulting LLC’s Motion to Compel Compliance with Fed. R. Crim. P. 16 Case 1:18-cr-00032-DLF Document 241-5 Filed 11/11/19 Page 2 of 3 From: Sent: Subject: Rakoczy, Kathryn (USADC) <Kathryn.Rakoczy@usdoj .gov> Tuesday, November 5, 2019 11 :28 AM Dubelier, Eric A.; Seikaly, Kate J Kravis, Jonathan (USADC); Jones, Luke (USADC); Alpino, Heather (NSD); Atkinson, Lawrence (CRM); Atkinson, Lawrence (CRM); Dickey, Ryan (CRM) RE: U.S. v. Concord - Expert Testimony & 404(b) Notice Deadline Filing Date: 11/5/20191 1:45:00AM To: Cc: EXTERNAL E-MAI Hi Eric, Thank you for taking the time to talk earlier. As we discussed, we do not expect to elicit testimony (opinion or otherwise) that wou ld trigger an obligation to provide notice under Rule 16(a)(l)(G), and we flagged the addit ional information in our letter (regarding anticipated fact testimony), because we thought it would be helpful context for you and the Court in advance of trial, but we believe conversations and litigation about the admissibility of th is evidence would be much more productive after the parties' exchange of exhibit lists at the beginning of January 2020. As I mentioned on the call, we are open to proposing to the Court amendments to the Scheduli ng Order to ensure that the defense has the opportunity to file any plead ings cha llenging the admissibility of th is evidence and/or to modify its own expert notice if you think it is appropriate after reviewing our exhibit list. I understand from our ca ll that you do not feel that such an option would be sufficient, and that you may soon file a motion to compel, but if you would like to discuss this matter further, please let us know. Thanks, Kate Kathryn L. Rakoczy Assistant United States Attorney Un ited States Attorney's Office 555 Fourth Street, N.W., Room 5239 Washington, D.C. 20530 (202) 252-6928 (office phone) (202) 740-3245 (cell phone) Kathryn.Rakoczy@usdoj.gov From: Dubelier, Eric A.<EDubelier@ ReedSm ith.com> Sent: Monday, November 4, 2019 2:43 PM To: Rakoczy, Kathryn (USADC) <KRakoczy2@usa.doj .gov>; Seika ly, Kate J <KSeikaly@ReedSmith.com> Cc: Kravis, Jonathan (USADC) <JKravis1@ usa.doj.gov>; Jones, Luke (USADC) <Uones2@usa.doj.gov>; Alpino, Heather (NSD) <halpino@jmd.usdoj.gov>; Atkinson, Lawrence (CRM) <Lawrence.Atkinson@crm.usdoj.gov>; Atkinson, Lawrence (CRM) <Law rence.Atkinson@crm.usdoj .gov>; Dickey, Ryan (CRM) <Ryan.Dickey@CRM.USDOJ.GOV> Subject: RE: U.S. v. Concord - Expert Testimony & 404(b) Not ice Deadline Kate: 1 Case 1:18-cr-00032-DLF Document 241-5 Filed 11/11/19 Page 3 of 3 Your letter does not provide sufficient information for us to determine if you will be “proffering an expert witness in lay  witness’s clothing and thereby avoid[ing] the disclosure and other requirements . . .” applicable to expert  testimony.  See U.S. v. Williams, 827 F.3d 1134, 1156 (D.C. Cir. 2016).  Your admission that you intend to call witnesses  to testify about topics that may be unfamiliar to jurors indicates to us that this testimony will be based on specialized  knowledge.  It is impossible for us to prepare for trial and determine what witnesses we may call to rebut this testimony  without knowing the substance of the testimony well in advance of trial.  That is the precise reason why F.R.Cr.P.  16(a)(1)(G) requites such notice and report.  If your letter is your final word on this issue then will we take it up with the  court.  But I figured it was worth one more communication with you to see if you will provide any further details of this  proposed testimony.    Thanks, Eric    Eric A. Dubelier 202-414-9291 edubelier@reedsmith.com Reed Smith LLP   1301 K Street, N.W.    Suite 1100 - East Tower   Washington, D.C. 20005   202-414-9200   Fax 202-414-9299     From: Rakoczy, Kathryn (USADC) <Kathryn.Rakoczy@usdoj.gov> Sent: Friday, November 1, 2019 6:55 PM To: Dubelier, Eric A. <EDubelier@ReedSmith.com>; Seikaly, Kate J <KSeikaly@ReedSmith.com> Cc: Kravis, Jonathan (USADC) <Jonathan.Kravis3@usdoj.gov>; Jones, Luke (USADC) <Luke.Jones@usdoj.gov>; Alpino,  Heather (NSD) <Heather.Alpino@usdoj.gov>; Atkinson, Lawrence (CRM) <Lawrence.Atkinson2@usdoj.gov>; Atkinson,  Lawrence (CRM) <Lawrence.Atkinson2@usdoj.gov>; Dickey, Ryan (CRM) <Ryan.Dickey@usdoj.gov>  Subject: U.S. v. Concord ‐ Expert Testimony & 404(b) Notice Deadline   EXTERNAL E-MAIL Dear Counsel,    Please see the attached letter regarding expert and 404(b) notice.    Have a good weekend,  Kate Rakoczy    Kathryn L. Rakoczy  Assistant United States Attorney  United States Attorney’s Office  555 Fourth Street, N.W., Room 5239  Washington, D.C. 20530  (202) 252‐6928 (office phone)  (202) 740‐3245 (cell phone)  Kathryn.Rakoczy@usdoj.gov    2 Case 1:18-cr-00032-DLF Document 241-6 Filed 11/11/19 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA, CRIMINAL NUMBER: v. 1:18-cr-00032-2-DLF CONCORD MANAGEMENT AND CONSULTING LLC, Defendant. PROPOSED ORDER Upon consideration of Defendant Concord Management and Consulting LLC’s Motion to Compel Compliance with Fed. R. Crim. P. 16, and any opposition thereto, it is hereby ORDERED that the motion is GRANTED. The government shall provide Defendant with the names of witnesses and written summaries required by Rule 16 for any testimony that the government intends to use during its case-in-chief that is based on scientific, technical, or other specialized knowledge about any topic that may be unfamiliar to jurors, including but not limited to testimony regarding the internet, social media websites, and the role of particular government agencies. SO ORDERED. Dated: __________________________________ Dabney L. Friedrich United States District Judge