Government’s Supplemental Brief in Opposition — United States v. Fontrell Antonio Baines (No. 2:20-cr-00522)

Summary

Government's Supplemental Brief in Opposition to Defendant's Application for Reconsideration of Release Due to Changed Circumstances, Document 34, Case 2:20-cr-00522-MWF, filed 01/13/21, with a stated hearing date of Jan. 14, 2021. It states that the brief addresses an issue raised by the Court at the hearing on January 7, 2021: whether the defendant can review discovery while subject to quarantine procedures at the Metropolitan Detention Center. It states that the discovery is subject to a Protective Order barring the defendant from possessing it outside the presence of counsel. The government proposes giving the defendant a redacted copy during the quarantine, to be returned afterward. The brief is signed /s/ Ranee A. Katzenstein and dated January 13, 2021.

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     Case 2:20-cr-00522-MWF Document 34 Filed 01/13/21 Page 1 of 6 Page ID #:197



1    TRACY L. WILKISON
     Acting United States Attorney
2    BRANDON D. FOX
     Assistant United States Attorney
3    Chief, Criminal Division
     RANEE A. KATZENSTEIN (Cal. Bar No. 187111)
4    Assistant United States Attorney
     Chief, Major Frauds Section
5         1100 United States Courthouse
          312 North Spring Street
6         Los Angeles, California 90012
          Telephone: (213) 894-2432
7         Facsimile: (213) 894-6269
          E-mail:    ranee.katzenstein@usdoj.gov
8
     Attorneys for Plaintiff
9    UNITED STATES OF AMERICA

10                            UNITED STATES DISTRICT COURT

11                     FOR THE CENTRAL DISTRICT OF CALIFORNIA

12   UNITED STATES OF AMERICA,               No. CR 20-522-MWF(AFM)

13               Plaintiff,                  GOVERNMENT’S SUPPLEMENTAL BRIEF IN
                                             OPPOSITION TO DEFENDANT’S
14                    v.                     APPLICATION FOR RECONSIDERATION OF
                                             RELEASE DUE TO CHANGED
15   FONTRELL ANTONIO BAINES,                CIRCUMSTANCES

16               Defendant.                  Hearing Date:     Jan. 14, 2021
                                             Hearing Time:     1:30 p.m.
17

18        Plaintiff United States of America, by and through its counsel
19   of record, the Acting United States Attorney for the Central District
20   of California and Assistant United States Attorney Ranee A.
21   Katzenstein, hereby files this supplemental brief in opposition to
22   defendant’s application for reconsideration of release due to changed
23   circumstances. (Dkt. 25.)      This brief addresses the issue raised by
24   the Court at the hearing on January 7, 2021, namely, whether
25   defendant can review the discovery in this case in order to prepare
26   for trial while he is subject to the quarantine procedures instituted
27   by the Metropolitan Detention Center (MDC) to address the COVID-19
28   pandemic.    The issue arises because the discovery is subject to a
     Case 2:20-cr-00522-MWF Document 34 Filed 01/13/21 Page 2 of 6 Page ID #:198



1    Protective Order that prohibits defendant from possessing the

2    discovery outside the presence of his counsel in order to protect the

3    unredacted personal identifying information (PII) of third parties

4    that the discovery contains.      Defendant is unable to meet with his

5    counsel while the quarantine persists at MDC and, thus, is currently

6    unable to review the discovery.

7         As discussed below, the government proposes to reconcile the

8    need to protect the PII – which is the purpose of the Protective

9    Order – with defendant’s need to prepare for trial by providing

10   defendant with a copy of the discovery in which the PII is redacted.

11   The government will seek an amendment to the protective order to

12   allow defendant to review this redacted discovery outside the

13   presence of his counsel during any period in which quarantine

14   procedures prevent him from being able to meet with his counsel.

15   I.   The Discovery Produced in this Case and the Protective Order
16        The discovery produced by the government in this case comprises

17   2715 pages of records.     The records fall into the following

18   categories:

19        •     Applications for unemployment insurance (UI) benefits

20        submitted to the California Employment Development Department

21        (EDD) (approximately 438 pages);

22        •     Identification records for the debit cards administered by

23        Bank of America by which EDD disburses the UI benefits (BofA

24        Debit Cards) (approximately 591 pages);

25        •     Transaction records for the BofA Debit Cards (approximately

26        423 pages);

27

28
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     Case 2:20-cr-00522-MWF Document 34 Filed 01/13/21 Page 3 of 6 Page ID #:199



1         •     ATM photos showing the BofA Debit Cards being used

2         (approximately 491 pages);

3         •     BofA Debit Card account spreadsheets (approximately 120

4         pages);

5         •     YouTube, Instagram and other provider screen shots

6         (approximately 476 pages);

7         •     Defendant’s Bureau of Prisons health records (approximately

8         129 pages);

9         •     Reports of interviews (approximately 24 pages); and

10        •     Store receipts and surveillance regarding use of the BofA

11        Debit Cards (approximately 11 pages).

12        The remainder of the records include spreadsheets and other

13   information from EDD, subscriber information from Internet Service

14   Providers, records from the Las Vegas Metropolitan Police Department,

15   and the arrest warrant and other filings in this case.

16        On November 20, 2020, an order was entered in this case to

17   protect the PII contained in the discovery from unnecessary

18   dissemination and/or misuse.      (Dkt. 22.)    The Protective Order

19   provides, among other things, that “defendant may review PII

20   Materials only in the presence of a member of the Defense Team, who

21   shall ensure that defendant is never left alone with any PII

22   Materials.”

23        The PII in the discovery is primarily found in the applications

24   for UI benefits, the identification records for the BofA Debit Cards,

25   and the reports of interview.      Although there are account numbers in

26   the transaction records for the BofA Debit Cards, these accounts have

27

28
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     Case 2:20-cr-00522-MWF Document 34 Filed 01/13/21 Page 4 of 6 Page ID #:200



1    been closed and, therefore, the potential for misuse of this

2    information is minimal.

3    II.   Trial
4          Trial is currently set for February 23, 2021.         The government

5    believes that this date will be continued because of the suspension

6    of certain court functions in response to the COVID-19 pandemic.              See

7    “Notice from the Clerk: Extension of Continuity of Operations Plan”

8    (Jan. 6, 2021), available at

9    http://www.cacd.uscourts.gov/sites/default/files/documents/2021-01-

10   06%20Notice%20-%20Extension%20of%20COOP%20Plan.pdf          Given the

11   continuing suspension of all jury trials under the COOP Plan; the

12   closure of court facilities to the public, except for hearings on

13   certain criminal duty matters, until at least January 29, 2021; the

14   continuing increase in the number of COVID-19 cases,

15   hospitalizations, and test positivity rates in this district, and the

16   time needed to summons jurors for trial once the court facilities

17   reopen, it is unlikely that trial in this matter can commence before

18   April 1, 2021.

19   III. Conditions at MDC
20         On October 16, 2020, this Court found that no condition or

21   combination of conditions would reasonably assure the appearance of

22   defendant as required or the safety of the community and ordered

23   defendant detained.     (Dkt. 6.)   On November 16, 2020, MDC, where

24   defendant is being held, instituted quarantine procedures to address

25   an outbreak of COVID-19.     MDC currently has 12 active cases (down

26   from the 99 reported at the beginning of the outbreak), one inmate

27   death, and 326 inmates recovered.       BOP, COVID-19 Coronavirus (updated

28
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     Case 2:20-cr-00522-MWF Document 34 Filed 01/13/21 Page 5 of 6 Page ID #:201



1    daily at 12pm Pacific), available at

2    https://www.bop.gov/coronavirus/index.jsp (last visited Jan. 13,

3    2021).    Although the outbreak is being brought under control,

4    defendant is still subject to quarantine procedures that preclude

5    meeting with his counsel in person or by VTC.         According to MDC

6    Attorney Advisor JoAnna Wilson, although defendant’s housing unit is

7    still considered “exposed quarantine,” testing is expected in the

8    next few days and it is hoped that the unit will convert to

9    “recovered” next week.

10   IV.   Government’s Proposal to Enable Defendant to Have Access to the
           Discovery in Order to Prepare for Trial
11
           In order to reconcile the need to protect the PII in the
12
     discovery and defendant’s need to prepare for trial, the government
13
     proposes the following:
14
           The government will prepare a set of the discovery in which the
15
     PII is redacted.    This redacted set will be prepared in phases.             The
16
     first phase will include the UI benefits applications, reports of
17
     interviews, and debit card identification records (approximately 1050
18
     pages).    The second phase of redactions will include the debit card
19
     transactions and spreadsheet records (approximately 543 pages) plus
20
     spot-checking of the remaining discovery to ensure that no PII is
21
     included.    The government believes it can complete Phase I by January
22
     22, 2021, and Phase II by January 29, 2021.
23
           The government will also seek entry of a proposed supplement to
24
     the Protective Order addressing procedures to enable defendant to
25
     have access to this redacted discovery while MDC continues to
26
     implement quarantine measures to deal with COVID-19.          The proposed
27
     procedures will allow defendant to possess the redacted discovery
28
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     Case 2:20-cr-00522-MWF Document 34 Filed 01/13/21 Page 6 of 6 Page ID #:202



1    while the quarantine remains in effect, but require him to return it

2    once the quarantine is lifted and he is able to meet with counsel to

3    review the unredacted discovery.       Returning the unredacted discovery

4    when access to it is no longer necessary is appropriate because, for

5    ease of understanding, the redacted discovery will still include the

6    claimants’ names and portions of their PII, i.e., the last four

7    digits of their SSN, the year of birth, the city and state of

8    residence, the last four digits of phone numbers and the last four

9    digits of driver’s licenses.

10        Counsel for defendant was informed of this proposal and asked

11   for defendant’s position regarding it and any objections to it.               As

12   of the filing of this supplemental brief, counsel for defendant has

13   not stated a position regarding this proposal.

14

15   Dated: January 13, 2021              Respectfully submitted,

16                                        TRACY L. WILKISON
                                          Acting United States Attorney
17
                                          BRANDON D. FOX
18                                        Assistant United States Attorney
                                          Chief, Criminal Division
19

20                                         /s/ Ranee A. Katzenstein
                                          RANEE A. KATZENSTEIN
21                                        Assistant United States Attorney

22                                        Attorneys for Plaintiff
                                          UNITED STATES OF AMERICA
23

24

25

26

27

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