Government Motion to Reconsider Ruling in J20 Case

SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA CRIMINAL DIVISION - FELONY BRANCH UNITED STATES OF AMERICA v. DANIEL MELTZER, CLAY RETHERFORD CHRISTOPHER LITCHFIELD, CAROLINE UNGER, MATTHEW HESSLER, and DYLAN PETROHILOS : : : : : : : : : : Criminal Case Nos. 2017 CF2 1176 2017 CF2 1378 2017 CF2 1235 2017 CF2 1355 2017 CF2 7212 2017 CF2 7216 Chief Judge Morin GOVERNMENT’S RECONSIDERATION MOTION On May 31, 2018, this Court found that an Assistant United States Attorney prosecuting these cases inaccurately represented to the Court that only one video — of a January 8, 2017 planning meeting at St. Stephens Church — was turned over by Project Veritas to Metropolitan Police Department (MPD) Detective Greggory Pemberton during the course of the investigation. The Court described the prosecutor’s conduct as “intentional” and a “serious violation,” but stopped short of making a “complete decision” because the prosecutor herself was not before the Court. The government appreciates this Court’s patience in forestalling a final determination about the nature of the prosecutor’s representations. Upon learning of this Court’s finding, the government examined the record in this case. After a careful review, the government respectfully submits that the Court’s finding is not supported by the record. At no point in this litigation has the prosecutor represented that the January 8, 2017 planning meeting video was the only video turned over by Project Veritas to Detective Pemberton. Though the defendants have asserted that the prosecutor made such a misrepresentation at a hearing on April 6, 2018, those comments related exclusively to edits made

to the January 8, 2017 planning meeting video and the government’s pre-trial designation of coconspirator statements. Moreover, the defendants’ claim that they were misled by the prosecutor at the April 6 hearing is contradicted by their own representations to this Court approximately a week earlier. On March 30, 2018, these same defendants filed a joint motion to exclude the January 8, 2017 planning meeting video and two additional videos relating to two different events that were turned over by Project Veritas to Detective Pemberton during the investigation. The defendants even submitted a thumb drive to this Court containing these two additional Project Veritas videos. The Court’s finding that an Assistant United States Attorney made an intentional misrepresentation to the Court is a serious matter. We ask the Court to review the record and reconsider its finding. BACKGROUND 1. On January 20, 2017, the day of the presidential inauguration, approximately 235 individuals were arrested after an unpermitted march known as an “anti-capitalist bloc” resulted in more than $100,000 in property damage in the District of Columbia. 2. Prior to January 20, 2017, an umbrella organization called DisruptJ20 had planned numerous permitted and unpermitted events on and around Inauguration Day. These events included, but were not limited to, permitted peaceful protests, a dance party, blockades, and the unpermitted anti-capitalist bloc (ACB). 3. In the days and weeks leading up to January 20, 2017, organizers with DisruptJ20 held several planning events. One of these events was a January 8, 2017 planning meeting at St. Stephens Church where attendees, including some of the charged defendants, met in a break-out session to discuss the ACB. During this break-out session, individual participants were instructed 2

to meet at Logan Circle on the morning of January 20, 2017, and were encouraged to wear all black clothing. The term “black bloc” was also used during this meeting by one of the defendants who led the meeting. 4. Disrupt J20 also organized (in partnership with American University) three days of “action camps” that were held from January 14 through 16, 2017, and consisted of more than twenty different trainings, informational sessions, and workshops designed to inform individuals about a variety of protest-related issues. 5. Working in an undercover capacity, MPD Officer Bryan Adelmeyer attended several events, including: (1) the January 8 planning meeting at St. Stephens Church; (2) certain sessions and workshops at the “action camp” on January 14 at American University; (3) another informal meeting at St. Stephens Church on the evening of January 14 (that preceded a formal “spokes council” meeting) during which a number of events were discussed, including the ACB; (4) a January 18, 2017 orientation meeting sponsored by an affinity group; (5) the “DeploraBall” event on January 19, 2017, during which individuals engaged in a practice “black bloc”; and (6) a blockade in the area of the D.C. Superior courthouse on the morning of January 20, 2017. See, e.g., 11/28/17 Tr. 125 (Officer Adelmeyer’s testimony). Consistent with MPD policy, Officer Adelmeyer made no audio or video recordings of any of these events. 6. Unbeknownst to MPD, members of Project Veritas also attended some of these events, as well as other events, and secretly recorded them. Prior to and shortly after January 20, 2017, Project Veritas posted portions of these videos online. The videos posted online included: (1) portions of the January 8, 2017 planning meeting at St. Stephens Church; (2) a planning meeting where individuals discussed chaining Metro trains together; (3) a planning meeting 3

discussing a planned assault at the DeploraBall; and (4) portions of a workshop from the “action camp” at American University. 7. Following the arrests on January 20, 2017, MPD Detective Pemberton was assigned as lead detective. As part of this investigation, Detective Pemberton discovered the aforementioned Project Veritas-created videos on the internet. He contacted Project Veritas, which provided him with a hard drive containing hours of videos from numerous meetings. See 12/11/17 Tr. 31-32. 8. Detective Pemberton and government counsel reviewed the hours of videos provided by Project Veritas. The only Project Veritas video in which individuals discuss the ACB is video from the January 8, 2017 planning meeting at St. Stephens Church. Other than the January 8, 2017 planning meeting video, the government is not in possession of any other Project Veritas video in which the ACB is discussed, and it is not aware of any other Project Veritas video that captures or records Officer Adelmeyer. 9. MPD’s investigation led to charges against hundreds of defendants. The massive scale of this highly complex prosecution necessitated several unique procedures, including the creation of an electronic discovery portal and the sequential scheduling of numerous multidefendant trials before different Superior Court judges. 1 Initially, Judge Lynn Leibovitz was the trial judge assigned to all of the cases, and she ruled on all pre-trial motions through December 31, 2017. She also issued all pre-trial discovery rulings before December 31, 2017, including placing limitations on discoverable material relating to cell-phone data. 1 For ease of reference, “Group 1” refers to the trial conducted before Judge Leibovitz in late 2017, “Group 2” refers to the trial before Judge Kimberly S. Knowles in May 2018, “Group 3” refers to the trial that was scheduled to be held before Judge Danya A. Dayson on May 29, 2017, and “Group 4” refers to the trial that was scheduled to be held on June 4, 2018, before this Court. 4

10. Notably, early in the case, Judge Leibovitz rejected the government’s request to produce, under a protective order, all data obtained from the charged defendants’ cell phones after defendants objected and argued, in part, that the government was dumping large amounts of irrelevant data on the defense. Citing the defendants’ argument and privacy concerns, Judge Leibovitz required government counsel to conduct a Rule 16 and Brady analysis of all data contained in the cell phones, and to produce only the data that constituted Rule 16 or Brady material. See, e.g., 6/9/17 Tr. 65-72; 7/21/17 Tr. 5, 44-45; 8/4/17 Tr. 7-32, 37-38. As discussed in hearings held before Judge Leibovitz, the government also engaged in a Rule 16 and Brady analysis for other forms of evidence, including radio runs, traffic cameras, and use of force investigations. See, e.g., Gov’t Omnibus Opp. to Motion to Compel 4 n.1 (addressing use of force investigations). 11. The government produced six Project Veritas-created video segments (capturing three separate events) via the discovery portal. 2 In March 2017, the government produced four Veritas-created video segments of the January 8, 2017 planning meeting at St. Stephens Church and discussions with individual defendants after the planning meeting. Then, on September 14, 2017, the government produced a video segment recording a December 29, 2016 planning meeting for the DeploraBall and a video segment recording a January 14, 2017 discussion between a Project Veritas member and defendant Aaron Cantu about recruiting individuals to assist in taking a bridge during an Inauguration Day protest. Endeavoring to adhere to the extant discovery rulings, the 2 The video for some events was broken up into separate segments, while for other events the video consisted of a single segment. For example, the video of the January 8, 2017 meeting (both before, during, and after the planning meeting) actually consisted of seven video segments. The defendants’ motion claims that there were 66 videos, (5/30/18 Mot. 3, 10) but there were 66 video “segments” recording only seven events. 5

government did not produce the remaining video segments provided by Project Veritas to Detective Pemberton. 12. The Group 1 defendants moved to exclude all six Project Veritas video segments from trial, arguing in a motion in limine that the videos could “not be assumed to be an unbiased account” of what they depict because Project Veritas is “an organization that infiltrates and attempts to ‘shut down’ groups whose viewpoint it opposes.” 10/31/17 Mot. 2-4. As support for this claim, the Group 1 defendants cited a website, “Project Veritas, DisruptJ20 Exposed,” which contained links to numerous video clips of Disrupt J20 events recorded by Project Veritas “journalists,” including recordings from the “action camps” at American University. Id. at 3 n.6. 13. At the Group 1 trial in late 2017, Detective Pemberton testified in open court that, as part of his investigation, he contacted Project Veritas, which “provided [him] with a hard drive which contained hours of video that [Veritas] had obtained through their investigation.” 12/11/17 Tr. 31-32. Specifically, the “hard drive contained individual files of what appeared to be a number of meetings. And in each of those files were separate segments of video, some of which were 15 minutes, some of which were 20 minutes. But it was not a running stream of video of each one of the events.” Id. at 32-33; see also 11/29/17 Tr. 50-51 (Officer Adelmeyer: “I was told that [the January 8 planning meeting video] was being followed up on along with a couple of [Project Veritas’] other videos.”). 14. Before this Court, the Group 4 defendants filed a nearly verbatim version of the Group 1 defendants’ motion in limine, seeking to exclude the Veritas videos produced in discovery by the government. Specifically, on March 30, 2018, the defendants filed a motion claiming that the January 8 planning meeting and DeploraBall “videos were recorded by the ultra-conservative media outlet, Project Veritas” and had been selectively edited by Project Veritas, “an organization 6

that infiltrates and attempts to ‘shut down’ groups whose viewpoint it opposes.” 3/30/18 Mot. 2. This motion also cited the “Project Veritas, DisruptJ20 Exposed” website and provided all six video segments the government had produced in discovery, including two additional events captured by Project Veritas. Id. at 2-3 & n.3. 15. The Group 4 defendants also filed a motion with this Court to compel seeking the original — unedited — January 8 planning meeting videos and details about the Project Veritas recording device because, defendants maintained, Project Veritas had a reputation for “pernicious editing.” 3/30/18 Mot. 2-3. 16. On April 5, 2018, the government filed its designation of proposed co-conspirator statements, which included discussions about property destruction overheard by Officer Adelmeyer at the January 14, 2017 meeting preceding the formal “spokes council” at St. Stephens Church, and a January 18, 2017 orientation meeting hosted by an affinity group called SURJ. See 4/5/18 U.S. Group 4 filing. 17. On April 6, 2018, this Court held a hearing to address, among other things, the defendants’ motion to compel and the government’s designation of proposed co-conspirator statements. a. At the outset of the April 6 hearing, this Court clarified the scope of defendants’ motion to compel by confirming with defense counsel that that motion “has to do with the proffer of exhibit — of a video of the planning meetings.” 4/6/18 Tr. 8. This Court then asked the “government’s position on what they have and what’s available to them.” Id. In response, government counsel explained that law-enforcement officials had requested videos “from a number of sources,” including Project Veritas; Project Veritas, in turn, “provided unedited video,” though not “the original video.” Id. at 8-9. And, government counsel added, “we posted th[is] 7

video,” i.e., produced it to the defendants. Id. at 9. But, government counsel also explained, the government had “edit[ed]” the January 8 planning meeting video by cropping out two portions that revealed the identities of the creator of the Project Veritas video and Officer Adelmeyer. Id. at 910. Otherwise, government counsel stated, “the defense has the exact video we have.” Id. at 10. To ensure clarity about the extent of the government’s edits, this Court asked the prosecutor the following: “other than the two pieces of information, you don’t have any other presentation of that meeting other than what’s been provided to you?” Id. She affirmed that the government did not. 3 Id. Finally, after defense counsel argued that the defendants were entitled to the “cropped portions” in the government’s possession, this Court agreed and “order[ed]” the government to produce to defendants “the cropped portions . . . the entirety of whatever is in the government’s possession.” Id. at 11-17, 19. 4 b. Later in the April 6 hearing, this Court addressed the admissibility of the proposed co-conspirator statements. As to the January 14 spokes council pre-meeting, government counsel emphasized that the statements made at that pre-meeting did not raise any “authenticat[ion]” issues because Officer Adelmeyer heard them himself, noting that “[t]here was no rerecording [sic] of [the pre-meeting], he’s just going to talk about it.” 4/6/18 Tr. 79. Thus, government counsel further explained, Officer Adelmeyer attended the January 14 spokes council pre-meeting in 3 The other videos that Project Veritas provided to Detective Pemberton capture events other than the January 8, 2017 planning meeting. 4 The government complied with the Court’s order on April 12 by providing defendants with completely unedited versions of the January 8 planning meeting videos, which consisted of four video segments. See 5/23/18 Tr. 64. The government also provided defendants with three additional video segments from the January 8, 2017 meeting. These three additional video segments were recorded before the ACB break-out session and the subsequent discussions with defendants that were produced in March 2017. The government noted that the three video segments were not “part of this [January 8] planning meeting” and did not “incorporate or have any sort of statements that the government intended to use at trial and th[at] don’t really discuss what is at issue in this case.” Id. at 57. The production to defense counsel of the three additional video segments of the January 8 meeting brought the total number of Veritas video segments produced by the government to nine video segments of three separate events occurring on three separate dates. 8

person and “was present for the discussions among organizers of the anticapitalist bloc[].” Id. at 79-80, 83-84; see also id. at 84-85 (no “video or a tape” of this pre-meeting, just “documents” in the form of Officer Adelmeyer’s “after-the-fact notes”). Further, after defense counsel raised “foundational issues” about the admissibility of the proposed January 14 co-conspirator statements, including the government’s uncertainty about precisely “who attended” that orientation meeting, this Court similarly asked government counsel about recordings of that meeting: THE COURT: Is that [sic] a video or audio recording at all at this point? [GOVERNMENT COUNSEL]: It is not. The undercover officer was not recording. There were – it was an orientation meeting, and then there were other individuals speaking about the event. He did attend another meeting on the 19th. This is specific to the 18th. He did take after-the-fact notes, but it was several individuals from certain affinity groups were saying that what they planned, that there was a[n] attempt to break windows and damage property during the march. Id. at 91-92. Ultimately, this Court “reserve[d]” decision on the proposed co-conspirator statements, asking the government to identify those “coconspirators who were indicted” that Officer Adelmeyer recognized. Id. at 88. This Court also asked the government to “flush out through proffer” what was said at these meetings, including “the entire context of what [Officer Adelmeyer] overheard,” which “has to be provided to the defense.” Id. at 89-90. Specifically, this Court focused government counsel’s attention on any “statements about nonconfrontation, nonviolence,” which could constitute Brady material. Id. at 90-92. 5 18. On May 22, 2018, the Group 4 defendants moved for sanctions, claiming that the government withheld “information favorable to the defense” by failing to identify a third edit to 5 On April 17, 2018, the government provided defendants (and the Court) with more details about these meetings and Officer Adelmeyer’s notes. The Court then reviewed the admissibility of the co-conspirator statements in light of the detailed proffer provided by the government. 9

the January 8 planning meeting video that was at “the end of the video.” 5/22/18 Mot. 2-3. In this omitted portion, defendants noted, the Project Veritas member who recorded the video can be heard communicating on his cell phone, “I was talking with one of the organizers from the IWW and I don’t think they know anything about any of the upper echelon stuff.” Id. at 3. 19. On May 23, 2018, this Court addressed defendants’ motion. 6 To alleviate any possible prejudice, the government offered to assist the defendants’ investigation of the “upper echelon” statement, an investigation, the government suggested, that could be completed before trial. 5/23/18 Tr. 67-68. This Court acknowledged “the diligence the government has taken to provide discovery,” but nonetheless found an “unintentional Brady violation.” Id. at 77. While “the failure to disclose” the third edit “was not necessarily an intentional attempt to mislead the defense,” the Court said, the unedited January 8 planning meeting video “should have been turned over to the defense with some clarity, not under the cloud that we are going to give you a redacted portion of the video and all it shows is a particular thing and, in fact, there’s additional information.” Id. at 75. This Court reserved judgment on a possible sanction. Id. at 76. 7 20. Consistent with its offer to assist defendants, the government facilitated a meeting between defense counsel and the January 8, 2017 Project Veritas videographer, who explained that 6 Initially, at that hearing, government counsel represented that the assigned prosecutor had forgotten about that particular edit and statement when earlier discussing it at the April 6, 2018 hearing. But the assigned prosecutor was unaware of the edit and statement until it was raised by the Group 4 defendants. (This latter representation was made to Judge Knowles when this question was posed to the assigned prosecutor while she was in trial with the Group 2 defendants, but she was not present at the May 23, 2018 hearing before this Court because she was in trial before Judge Knowles.) Once the videographer left the January 8 planning meeting and zipped up his coat, the assigned prosecutor believed there was nothing else on the video and stopped watching. As a result, when converting the video to an mp4 format to produce to the defense in March 2017, government counsel made an unintentional third “edit” by stopping the conversion process when the videographer left the meeting. 7 Although the defendants had also complained about the three breakout-session videos produced on April 12, see note 4 supra, claiming that that “video ha[d] never been uploaded prior to that date,” this Court did not address that claim, apparently agreeing with the government’s assertion that there had been “no allegation that these videos contained any Brady material.” 5/22/18 Mot. 3-4; 5/23/18 Tr. 60. 10

his cell-phone statement was simply his “opinion” that co-defendants Dalto and Hessler “were unaware of who was funding or backing their [J20] efforts.” 5/30/18 U.S. Opp. 4-5. 8 Notably, this opinion was based on the conversations the videographer had with Dalto and Hessler that were produced to the defense in March 2017 along with the January 8 planning meeting videos. At the meeting with the videographer, counsel questioned him about other videos that Project Veritas had recorded. See 5/31/18 Tr. 18-19. This, in turn, led to this Court’s request for a summary of all Project Veritas-created videos in the government’s possession, which the government described in a May 30, 2018 email. 21. Thereafter, the Group 4 defendants asked this Court to dismiss the indictment, claiming that the “Government provided false information to the Court.” 5/30/18 Mot. 4. Citing only the April 6 hearing transcript, defendants argued that the government had misrepresented that there were no Project Veritas-created “action camp” videos. Id. at 4-6. Defendants also asserted that the government had “misled the Court and the defense counsel to believe that it had received only one video” from Project Veritas. Id. at 7-9. Thus, defendants claimed, the “Government has succeeded in misleading over 200 co-defendants, their attorneys, and three Honorable Superior Court Judges to believe that there were only seven videos in its possession from Project Veritas.” Id. at 10. 9 22. At a hearing the next day, this Court found that government counsel had inaccurately represented that “there was only one [Project Veritas] video received by Detective Pemberton.” 5/31/18 Tr. 32; see also id. at 33 (“your Office represented that [there] was only one 8 This meeting was attended by attorneys for defendants in Groups 2, 3 and 4. 9 To be clear, this is a reference to video of the January 8 planning meeting, which contains “a total of seven continuous videos . . . captur[ing] th[at] meeting.” 5/30/18 U.S. Opp. 2 n.1. 11

video turned over to Detective Pemberton”). Although suggesting that the prosecutor’s misrepresentation was a “serious violation,” this Court “was not prepared to find that it was necessarily malevolent.” Id. at 36. This Court reasoned that, to make a “complete decision with regard to that,” the Court should hear from the prosecutor who made representations at the April 6 hearing. Id. at 36-37. 10 ARGUMENT “[I]n the absence of clear evidence to the contrary, courts presume that [public officers] have properly discharged their official duties.” United States v. Mezzanatto, 513 U.S. 196, 210 (1995) (citation omitted). Here, there is no evidence, let alone “clear” evidence, of a government misrepresentation. Government counsel never represented that the January 8 planning meeting video was the only Project Veritas-created video provided to Detective Pemberton. Accordingly, the government asks this Court to reconsider its preliminary determination to the contrary. See Bernal v. United States, 162 A.3d 128, 134 (D.C. 2017). In its ruling, this Court did not identify a specific part of the record purportedly reflecting a misrepresentation by the government that Detective Pemberton possessed only one Project Veritas-created video, and we have been unable to find any statement that we believe reasonably could be so interpreted. For their part, defendants have pointed to two April 6 colloquies in which the government supposedly stated or suggested that Detective Pemberton received only one Veritas-created video. See 5/30/18 Mot. 4-9 (citing 4/6/18 Tr. 8-19, 77-92). As we explain below, those colloquies contain no such representation. That is unsurprising because, by the time of the April 6 hearing, the government had already produced to defendants several Project Veritas- 10 This Court also found that the recently disclosed “action camp” videos were “relevant to any defendant’s defense of conspiracy” because the videos could have, for example, shown a defendant to “be present or not present” at those meetings. 5/31/18 Tr. 36. 12

created videos and had elicited testimony at the first trial from Detective Pemberton himself that Project Veritas had provided him a hard drive containing hours of videos. Indeed, the Group 4 defendants – the same defendants who now claim they were misled – themselves submitted two other Veritas-created videos of two other meetings to this Court. See 3/30/18 Mot. 2 n.3. We thus submit that there is no “clear evidence” of a government misrepresentation. Defendants first claim that, during the discussion of their motion to compel on April 6, the government “misled the Court and defense counsel to believe that it had received only one video” when “the government actually received 66 videos and 3 audio recordings from Project Veritas.” 5/30/18 Mot. 7-9. But the only topic discussed during this colloquy, reflected on pages 8-10 of the April 6 transcript, was the Project Veritas-created video of the January 8 planning meeting, which was the sole subject of defendants’ motion to compel. When this Court turned to that motion, this Court declared that it “has to do with a proffer of exhibit [sic] – of a video of the planning meetings.” 4/6/18 Tr. 8 (emphasis added). Thereafter, the parties’ discussion singularly focused on the January 8 planning meeting “video” and the two clips that the government had “crop[ped]” from it. Id. at 8-9. Thus, when this Court asked government counsel, “other than the two pieces of information, you don’t have any other presentation of that meeting,” counsel accurately affirmed that the government did not. Id. at 10 (emphasis added). 11 Second, defendants maintain that, in a later April 6 colloquy about co-conspirator statements, the government “intentionally failed to disclose” that it possessed 35 Project Veritascreated “action camp” videos. 5/30/18 Mot. 4-6. Again, defendants are mistaken. This colloquy 11 Accordingly, at the colloquy’s conclusion, this Court ordered the government to produce the “entirety of whatever is in the government’s possession,” i.e., all “cropped portions” that the government had edited out of the January 8 planning meeting video, 4/6/18 Tr. 15, 19, which the government did. It is thus not true that this “Court ordered the government to produce all the videos and audio recording received from Project Veritas,” as defendants have contended (5/30/18 Mot. 9 (emphasis added)). 13

addressed only whether Officer Adelmeyer had made any video or audio recordings of the January 14 and 18 “action camp” meetings, not whether Project Veritas had done so. Specifically, when this Court inquired how the government would “authenticate” the proposed co-conspirator statements, government counsel explained that Officer Adelmeyer was present at the January 14 meeting and heard the statements himself, adding that “[t]here was no rerecording of it, he’s just going to talk about [it].” 4/6/18 Tr. 78-79 (emphasis added). Further, when this Court later asked defense counsel if she had “look[ed] at the video” of that meeting, defense counsel corrected the court (“There’s no video of this”) and government counsel reiterated — correctly — that Officer Adelmeyer had not made a video: “The officer attended. The officer reported back to his officials.” Id. at 84-85. Similarly, when this Court asked government counsel if there was a “video or audio recording” of the January 18 meeting, she accurately declared that there was not — “The undercover officer was not recording . . . .” Id. at 90-91 (emphasis added). There was no discussion of Project Veritas videos at all. Thus, government counsel did not represent at the April 6 hearing that “there was only one” Project Veritas-created video provided to Detective Pemberton. 5/31/18 Tr. 33. 12 Such a representation would have defied logic because by April 6 the defendants themselves knew that the government possessed numerous Project Veritas-created videos in addition to the January 8 planning meeting video — and, indeed, that fact was a matter of public record after Detective Pemberton’s testimony at the first trial. Specifically, defendants knew that Project Veritas had produced a “hard drive” to Detective Pemberton sometime in early 2017. 12/11/17 Tr. 33. More specifically, defendants knew that this hard drive contained “hours of video that [Project Veritas] had obtained through their investigation,” including “what appeared to be a number of a meetings.” 12 At one point during the May 31 hearing, government counsel declared that the government “did disclose Veritas videos that were not from January 8th” and the Court responded, “I agree with that.” 5/31/18 Tr. 34. 14

Id. Further, the government produced nine distinct Project Veritas-created video segments, concerning three separate events, only seven of which captured the January 8 planning meeting. The Group 1 defendants attacked these Veritas-created video segments, arguing that those “videos” could not be trusted because they were “potentially edited” by Project Veritas, “an organization that infiltrates and attempts to ‘shut down’ groups whose viewpoint it opposes.” 11/1/17 Mot. 2-3. The Group 4 defendants repeated these claims, noting that the “videos were recorded by the ultra-conservative media outlet, Project Veritas.” 3/30/18 Mot. 2. Moreover, in each motion these defendants cited the publicly-accessible “Project Veritas, DisruptJ20 Exposed” website, which had links to Veritas-created videos of, among other things, portions of the J20 “action camp.” Far from demonstrating that the government “mislead[] over 200 co-defendants, their attorneys, and three Honorable Superior Court Judges to believe” that the government possessed “only” the January 8 planning meeting video, as defendants have argued, 5/30/18 Mot. 10, the record establishes that all parties understood that the government possessed several Project Veritas-created videos in addition to the January 8, 2017 planning meeting video. The record also establishes that counsel representing the government at the April 6 hearing — who was in trial and thus unavailable to address the Court’s questions posed during the May 31 hearing — was the same counsel who had already produced Veritas-created video segments to all defendants, capturing three separate events, and affirmatively elicited testimony from Detective Pemberton about a hard drive containing videos of a number of meetings created by Project Veritas. In such circumstances, it would make no sense for the prosecutor to represent that there “was only one video received by Detective Pemberton,” 5/31/18 Tr. 32. And, as we have shown, the prosecutor did not make such a representation. 15

CONCLUSION WHEREFORE, the government requests that this Court reconsider its finding that government counsel intentionally misrepresented that “there was only one” Project Veritas-created video provided to MPD Detective Greggory Pemberton. 5/31/18 Tr. 33. Respectfully submitted, /s/ Jessie K. Liu JESSIE K. LIU UNITED STATES ATTORNEY United States Attorney’s Office 555 Fourth Street, N.W. Washington, D.C. 20530 /s/ Alessio D. Evangelista ALESSIO D. EVANGELISTA Principal Assistant United States Attorney United States Attorney’s Office 555 Fourth Street, N.W. Washington, D.C. 20530 /s/ David B. Goodhand DAVID B. GOODHAND Senior Counsel to the United States Attorney United States Attorney’s Office 555 Fourth Street, N.W. Washington, D.C. 20530 16

CERTIFICATE OF SERVICE I hereby certify that I caused a copy of the foregoing opposition to be served on counsel for the above-captioned defendants on this 28th day of June, 2018. /s/ Alessio D. Evangelista ALESSIO D. EVANGELISTA Principal Assistant United States Attorney 17