Opinion
NO. 1:06-CR-00111.
November 5, 2007
OPINION AND ORDER
This matter is before the Court on the government's Post-hearing Memorandum (doc. 203), Defendants' Post-hearing Submission (doc. 204), Defendant Chavan's Supplemental Post-Hearing Brief (doc. 202), Defendant Kellogg's Post-Hearing Brief (doc. 216), the government's Response (doc. 217), Defendants' Response (doc. 218), and Chavan's Response (doc. 219). Having conducted a "Kastigar-like" hearing, reviewed the filings, and heard the arguments, this matter is now ripe for the Court's decision.
For the reasons indicated herein, the Court now unequivocally DENIES Defendants' Corrected Joint Motion to Bar the Government from Using the Evidence Obtained in Violation of the Defendants' Attorney-Client and Work Product Privileges and to Dismiss the Indictment Since Privileged Material Was Used to Secure It (doc. 116). The Court has arrived at such conclusion because the government met its burden in showing its case is untainted by privileged material and that its agents acted in accordance with the law.
I. Background
In Defendants' July 5, 2007 motion (doc. 116), they requested the Court convene a hearing in the framework of Kastigar v. United States, 406 U.S. 441 (1972), at which the government would bear the burden of establishing that its case was untainted by attorney-client and work product privileged materials (doc. 116). The Court granted Defendants' motion, in part, to the extent that it set a "Kastigar-like" hearing, which it later clarified "should serve the narrow purpose of eliciting the sworn testimony of government agents as to their handling of evidence in this matter" (doc. 193). The Court found that Defendants had raised enough of a question about the amount of time that U.S. Postal Inspector Alejandro Almaguer ("Almaguer") possessed privileged data, as well as the government's methodology in screening data for privileged information, to merit a response (doc. 157, fn 1., citing In re: Grand Jury Subpoenas, 454 F.3d 511, 517 (6th Cir. 2006) ("the leakage of privileged materials to investigators would raise the specter of Kastigar-like evidentiary hearings").
Kastigar v. United States, 406 U.S. 441, 460 (1972), involved immunity issues and the interplay with the Fifth Amendment right against self-incrimination. The Supreme Court found in Kastigar if a person is compelled to give testimony under a grant of immunity from the use in any criminal case of such testimony or any evidence derived therefrom, and if the person is subsequently prosecuted for an offense to which his compelled testimony relates, the prosecution must negate the taint and prove that all the evidence it intends to use is derived from a legitimate source wholly independent of the compelled testimony.
Although Defendants desired to broaden the inquiry at the hearing so as to force the government to proffer all of its evidence and prove that all such evidence was untainted by privileged information and not obtained derivative to privileged information, the Court found well-taken the government's position that while Kastigar had analogous purposes, the privilege issues in question here are on a different plane than those involving constitutional immunity (doc. 193).
II. The Kastigar -like Hearing
On September 27 and 28, 2007, the Court held the hearing, at which time the government proffered evidence and the testimony of Almaguer, the Defendants were afforded opportunity to cross-examine Almaguer and examine other agents on direct, and the parties argued their respective positions concerning the propriety of the government action in this case. The government, central to its presentation, proffered a demonstrative exhibit of the timeline of events in its criminal investigation, as well as Almaguer's testimony. Subsequent to Almaguer's testimony, the government closed its case. Defendants cross-examined Almaguer, and then called the other agents involved in document review: FBI Agent John Maser, ("Maser"), Special Agent Richard Bowers of the Office of Inspector General, formerly of the U.S. Postal Inspection Service, ("Bowers"), and IRS Special Agent Elizabeth Shorten ("Shorten"). Defendants also proffered a witness, Peter Horstmann, who used software to analyze the electronic documents the government produced to Defendants. The following is a brief overview of the evidence:
A. Almaguer's Testimony
Almaguer testified as to the various sources of information in this case, including the Boone County, Kentucky Sheriff's Office ("Boone County"), internet service providers ("ISPs"), evidence seized from Berkeley facilities on March 16, 2005 pursuant to warrant, and the proffers of cooperating witnesses. Almaguer stated the Boone County production was unreadable and had no value for the purpose of the Berkeley search warrants. Almaguer further explained that though the government obtained or attempted to obtain Defendants' email account information from the ISPs Verio, Yahoo, and MSN, nothing from such production was used. Due to technical difficulties the Verio information was not used in the investigation at all, Yahoo refused to produce information, and MSN sent a password protected CD that agents never opened. Almaguer testified that when he received a CD of Defendant Steve Warshak's business email account from NuVox, he opened it in the presence of another postal inspector, put it in another envelope, and mailed it to Postal Inspector McGowan, in Pittsburgh, for keyword screening of attorney names. Almaguer testified that after McGowan returned to him the screened NuVox production, he reviewed it only "briefly," and that such review played very little role in his probable cause determination on the March 16, 2005 warrant.
As an aside, although Almaguer did not testify in detail at the hearing as to his application and affidavit for search warrant, which he swore before Magistrate Judge Hogan on March 14, 2005, the Court has reviewed such application. The facts and circumstances listed in the application supporting probable cause stem from numerous mail fraud complaints from consumers, made to the United States Postal Inspection Service and the Cincinnati Better Business Bureau, that Defendant Warshak's companies had charged their credit card without authorization (doc. 1, Case 1:05-MJ-0061). The application further cites to detailed information from current and former employees of Warshak, documents obtained from sources within the company, consultation with the VISA credit card company fraud team, and banking records. Almaguer's application was clearly supported by a host of information that had no link to privileged communications, all of which gave rise to probable cause.
In the related civil forfeiture proceeding, based upon the same affidavit, the Hon. Susan J. Dlott stated during a May 11, 2005 hearing that "[t]here's no doubt in my mind there's probable cause in those affidavits."
The resulting search of Berkeley facilities on March 16, 2005, which Defendants characterized as the "big bang," created a "universe" of documents: truckloads of hard copies, as well as copies of nearly 100 computer hard drives. Almaguer testified that he was present at the execution of the search warrant, and that he took action to protect privileged information by cordoning off the offices of in-house counsel, not searching the attorneys' offices, and not taking or copying attorney computers. Almaguer explained that the seized hard copy and electronic evidence was taken back to the Postal Inspection Office and secured. Almaguer stated that neither he nor other case agents ever looked at the electronic evidence, and that in any event, they lacked the specialized software and hardware to do so.
Almaguer testified that on May 13, 2005, he submitted requests to the Pittsburgh lab, which had the capacity to access the electronic evidence. Specifically, Almaguer stated he requested screening on four high-level Berkeley employees' computers and two Berkeley servers, so as to segregate out legal folders with the names of in-house counsel, but to return all other information. Pittsburgh responded with a partial return on July 22, 2005, of only two of the computers — that of Defendant Chavan, and that of former Chief Operations Officer Jim Teegarden. According to Almaguer, due to a virus issue Pittsburgh was only able to provide 2,200 emails from Defendant Chavan's computer, which Almaguer testified "just didn't produce much in the way of evidence to use in the indictment." Similarly, according to Almaguer, "not much came of" Teegarden's computer, because the results comprised a very short time period.
Almaguer testified that following the issuance of target letters to a number of Berkeley employees, in late September 2005, the investigation turned to proffer sessions with cooperators who would ultimately plead guilty to the fraud as alleged in the indictment. Almaguer recounted eleven initial proffer sessions with four individuals, all of whom gave interviews pursuant to agreements to cooperate with the government: 1) Greg Cossman, a former president of Berkeley, 2) Sue Cossman, a former customer care director and sister to Defendant Steve Warshak, 3) Mike Wagner, who performed accounting functions for Berkeley, and 4) Jim Teegarden. Almaguer testified that these four individuals all occupied high-level positions at Berkeley, and they essentially outlined almost every aspect of the Berkeley fraud scheme during the eleven sessions. When asked whether any of the cooperators were shown privileged documents or emails so as to convince them to cooperate at any time before or during the interviews, Almaguer squarely testified in the negative. Moreover, Almaguer indicated that up until this point in the investigation, he had not seen any attorney-client privileged communications at all.
Defendants challenged Almaguer on cross examination, taking the position that when Mike Wagner brought a laptop to an interview session on October 20, 2005, Wagner showed Almaguer various electronic documents supporting Wagner's explanation of the alleged fraud scheme. In Defendants' view, Almaguer showed no respect to the corporate privilege attached to the presumably privileged documents Wagner showed Almaguer, as the privilege was not Wagner's to waive. Almaguer testified as to one email that Wagner showed him, authored by Warshak's nephew, Jason Cossman, on February 25, 2005. The message was copied to numerous recipients, including Kellogg, contained no legal advice, but outlined a purported scheme to make more money from the Berkeley clients. Finally, Almaguer testified more generally with respect to the proffer sessions that "if anybody raised a specter of what an attorney said, the case agents and the AUSA would say `WHOA, WHOA, we don't want to know anything about that. We don't care about that.'"
In November 2005, Almaguer said the Pittsburgh lab completed its review of the electronic evidence he had submitted in May 2005, and returned such evidence, with legal folders excluded.
On January 25, 2006, the Cossmans, Mike Wagner, and Jim Teegarden, all entered plea agreements. Shelley Kinmon, former Vice President of Sales, followed suit on February 14, 2006. On March 23, 2006, CPA William Bertemes proffered testimony implicating Defendant Kellogg in obstruction charges.
Almaguer stated that he and other agents reviewed the electronic evidence, seeking to corroborate the testimony he obtained during the interview sessions. Almaguer testified he did not see any privileged materials during this review, but that out of an abundance of caution, he took steps to set up a "taint" review in April 2006, so that emails with the name of Paul Kellogg were set aside and sent to U.S. Attorney Mark D'Alessandro. Proffer sessions continued into the summer of 2006 with Mike Wagner and William Bertemes, who had also entered into a plea agreement on May 11, 2006.
On September 21, 2006, the Grand Jury handed down the 112-count indictment in this case. Almaguer testified that out of the total of the information and evidence he obtained in this case, he only used a "very small portion" of electronic evidence. It was rather "the words of the cooperators, themselves" that drove the case to indictment.
B. Maser's Testimony
Maser testified on the second day of the hearing that he and Shorten assisted Almaguer at some point between July 2005 and April of 2006 in reviewing emails from, to, and/or copied to in-house counsel, Paul Kellogg. Maser testified that he did not remember the contents of any of the emails, and that as soon as he saw the name of in-house counsel on any document, he set the document aside. Maser further testified that he was involved in proffer interviews and that no attorney communications were discussed during the interviews.
C. Bowers' Testimony
Bowers testified that he spent about a week screening the hard copy paperwork that had been seized from Berkeley, pulling all documents with lawyer or firm names and segregating them for taint review. Bowers further testified that Almaguer gave him access to the Berkeley case computer so Bowers could run a similar key-word search on the electronic evidence, and burn documents containing "hits" onto a separate disk. Counsel represented that Bowers' computer key-word screening resulted in some 55,000 documents. Bowers testified that he never read the emails, but merely copied the hits onto a disk for taint review.
D. Shorten's Testimony
Shorten testified that her involvement with the case began in late 2004. She stated she reviewed evidence leading up to the search warrant, later helped to interview witnesses, and reviewed hard copies of emails from the Teegarden, Chavan, Wagner and Kinmon computers. Shorten further testified that she reviewed paper copies of some of Warshak's NuVox emails and that she provided such emails to agents who interviewed Bertemes on March 16, 2005. On cross-examination, Shorten testified that to her knowledge she did not rely on any privileged document to conduct her investigation, and she did not use any privileged documents to obtain evidence or proffers.
E. Horstmann's Testimony
According to Peter Horstmann's testimony, he was hired to assist in representing Defendant Warshak by reviewing electronic evidence provided by the government. Horstmann testified that he reviewed the evidence produced by the government which was presumably sent to Pittsburgh on May 13, 2005, filtered for legal folders, and then returned to Almaguer. Horstmann used "Concordance" a software program to examine the evidence with keyword searches for attorney and law firm names. Horstmann's review yielded some 68,000 emails to and from attorneys. Horstmann testified that for purposes of the hearing, he compiled a sampling of these attorney-client privileged materials, which Defendants moved to admit into the record under seal. Out of an abundance of caution the Court admitted the documents as Defendants' Exhibit G.
III. The Post-Hearing Briefing
A. The Initial Memoranda
The government argues that a review of the testimony, exhibits, and other evidence establishes there was no use of any attorney-client privileged materials to further the investigation or to compel cooperation (doc. 203). The United States further argues that there is no basis to support any claim that its agents engaged in outrageous conduct so as to warrant dismissal of the Indictment or suppression of evidence (Id.). The government argues the burden is on the Defendants to show the existence of attorney communications entitled to protection, that is having unwaived claims of privilege, or communications not subject to the crime-fraud exception (Id.). The evidence at the hearing demonstrates, claims the government, that the prosecution does not intend to use any privileged communications, or any of the materials submitted to the taint team (Id.).
Defendants argue that evidence demonstrates the government failed to protect privileged information. Defendants specifically argue the government's screening of privileged materials was ineffective because 1) Almaguer reviewed NuVox emails before the execution of the March 16, 2005 warrant, and such communications were used in interviewing Bertemes, 2) the decision to cordon off and not search attorney's computers in no way protected privileged materials existing on non-attorney computers, 3) Almaguer had access to all the seized materials as custodian, 4) Horstmann's scrutiny of the Pittsburgh production shows 68,000 attorney-client documents got through the inadequate screening process, 5) When Bowers conducted his key-word screening of the seized evidence, he made a copy of the computer evidence, but apparently did not delete the information from Almaguer's case agent laptop, and 6) there were 55,000 documents sent for taint review by Bowers, all of which had been accessible to Almaguer and his team prior to April 6, 2006 (doc. 204). Citing United States v. Hampton, 775 F.2d 1479, 1489-90 (11th Cir. 1985), Defendants emphasize that "[n]either speculation or conclusory denials of use or derivative use by government officials will substitute for an affirmative showing of an independent source required for each and every item of evidence presented at trial" (Id.). Defendants argue Almaguer's testimony is belied by the lack of transmittal letters to the Pittsburgh lab, and in any event the screening process as applied to the NuVox materials was wholly inadequate for failing to include the names of many firms and attorneys that had represented Berkeley and Warshak (Id.). Defendants argue the screening process used on the May 13, 2005 production to the lab was also deficient in that it only involved a search to exclude folders, as opposed to a key-word search to exclude all files with attorney names (Id.).
In addition to the evidence presented at the hearing, Defendants attach two affidavits to their brief, which the government argues should be stricken absent a showing that the affiants were unavailable to testify at the hearing. The United States argues it would be unfair to permit Defendants to proffer additional witnesses that the government cannot cross-examine (doc. 217). As the government is not prejudiced in this instance by the Court's consideration of such evidence, the Court will not strike it.
Given such evidence, Defendants argue that the government has failed to demonstrate to prove the evidence it proposes to use is derived from a legitimate source (Id.). For all of these reasons, Defendants argue the Court should exclude all emails acquired from NuVox and other ISP's, all emails or documents seized in connection with the execution of the March 2005 search warrant, as well as any evidence, including the witness proffers, derived therefrom (Id.). Finally, the Court notes Defendants renew their argument that the Court should appoint an independent forensic expert to examine the laptops used by the case agents, including at least the two laptops used by Almaguer in this case (Id.).
Defendants Chavan and Kellogg also filed individual post-hearing briefs (docs. 202, 216). Chavan argues that Almaguer was intentionally obstructive at the hearing, that he parsed words, played games, and was evasive on key issues (doc. 202). Chavan argues the Court should find Almaguer's testimony lacking in credibility, and thus order a forensic examination of the case computer (Id.). Chavan further argues that the government produced no evidence at the hearing that Chavan was a part of upper level management, and that the evidence of Chavan's role had to have been gained by the invasion of attorney-client communications between Kellogg and the information technology department (Id.). Chavan argues that unlike other laptops seized pursuant to the warrant, his laptop was immediately readable by Almaguer, and that even after it was sent to Pittsburgh, "it was never screened for privileged material" (Id.).
Kellogg argues that because the AUSA represented that she intended to use no attorney communications as evidence in this case, no email to, from, or copied to Kellogg or other inhouse or outside counsel should be used in this case (doc. 216). Kellogg reiterates many of the Defendants' general arguments, but also specifically defines the "use" of privileged materials to encompass the government's possession of such information where such possession creates the reasonable assumption by targeted individuals that the government has knowledge of the contents of such communications (Id.). Under this theory, should the government possess privileged information, but never even access it, it could use the fact of its possession to persuade cooperation from witnesses (Id.). In this case, argues Kellogg, it is not his burden to prove the motivation and intent of Mike Wagner in making a proffer that ultimately led to Kellogg's indictment, but rather it is the government's burden to prove that its case has not been tainted by its access and use of privileged information (Id.).
The Court outright rejects this argument. Should there be evidence falling within the crime-fraud exception, such evidence is not subject to privilege. State ex rel. Nix v. Cleveland, 83 Ohio St. 3d 379, 383, 700 N.E. 2d 12, 16 (1998) (a communication is excepted from the attorney-client privilege if it is undertaken for the purpose of committing or continuing a crime or fraud). Moreover, the mere existence of an attorney's name on a document does not render a communication privileged.
B. The Responses
In summary, the government responds that it met its burden at the hearing and Defendants rely on speculation and innuendo to argue the contrary (doc. 217). The government argues that Defendants have failed to connect a single attorney-client communication to any count in the Indictment (Id.). Finally, the Court notes the government argues that the heavy burdens Defendants would impose under Kastigar simply do not apply to this case which involves no attempt by the government to use immunized testimony (Id.). Accordingly, argues the government, the only potential legal theory applicable is prosecutorial misconduct, a claim that fails for lack of outrageousness (Id. citing United States v. Kennedy, 225 F.3d 1187, 1194 (10th Cir. 2000)).
Defendants reiterate in their response that it is undisputed that Almaguer and other agents saw privileged materials, and that the government ineffectively screened for privileged materials as evidenced by Horstmann's affidavit and the fact that taint review has produced more than 5,000 privileged emails (doc. 218). Defendants argue Almaguer had the expertise to access the computers in his custody, and that he had no respect for the corporate attorney-client privilege when he accessed documents on Wagner's computer during the October 20, 2005 proffer interview (Id.). Defendants further argue that Almaguer's view, articulated in his affidavit in Case No. 1:06-CV-00234, that Kellogg's communications were not privileged shows a wrong-headed mind-set on the part of the lead investigator (Id.).
Defendants argue that other courts have extended the Kastigar approach where the government has impermissibly obtained confidential information, and cite to Briggs v. Goodwin, 698 F.2d 486, 494-95 (D.C. Cir. 1983) (possession by the prosecution of a Defendant's confidential defense strategy is a violation of the Sixth Amendment), and United States v. Danielson, 325 F.3d 1054, 1070-71 (9th Cir. 2003) (possession by the government of defense strategy shifts the burden to the prosecution to show there has been no prejudice to Defendants as a result of such information) (doc. 218). Defendants argue it is premature for the Court to weigh the question of the outrageousness of government behavior, because the hearing only involved the question of the government's handling of privileged information, and not the totality of the government's investigative behavior (Id. citing United States v. Haimowitz, 725 F.2d 1561, 1571 (11th Cir.), cert. denied, 469 U.S. 1072 (1984) ("Whether outrageous government conduct exists `turns upon the totality of the circumstances with no single factor controlling'"). Here, argue Defendants, the hearing only involved a single factor, the government's actions in relation to privileged materials (Id.).
Finally, Chavan argues that as to himself the government had no evidence other than witness statements to support a target letter (doc. 219). According to Chavan, such statements do not link him to any purported criminal acts, so therefore the government must have improperly viewed and relied on information on his computer (Id.). Chavan contends the prosecution against him is tainted, and therefore that he should be dismissed from Count One, or that the evidence against him should be excluded (Id.).
IV. Analysis
The Court finds it helpful to keep this dispute within the larger context. Although Defendants characterized the execution of the search warrants on March 16, 2005 as the "big bang" creating the universe of documents in this case, such metaphor fails to any extent it disregards the moving force behind the "big bang." Almaguer's application and affidavit for search warrant shows the government had plenty of information independent of any electronic or privileged sources, prior to the "big bang." Among such information, the application cites to interviews with consumers who filed complaints about Berkeley with the Cincinnati Better Business Bureau, interviews with unnamed current and former Berkeley employees, discussions with the VISA fraud team, and Almaguer's review of bank records. All of this information properly led to a probable cause determination, and all of this information correlates with the ultimate charges in the Indictment. The Court finds it difficult to conclude the government pieced together its Indictment by using improperly accessed information, when there exists so much information obtained through indisputably standard procedures.
To the extent unaddressed here, the Court will address in a forthcoming Order Defendants' theories further disputing the government's actions, as raised in their "Omnibus" motion (doc. 171).
The Court's original concerns that triggered the grant of the "Kastigar-like" evidentiary hearing were rooted in the amount of time that Almaguer allegedly had access to privileged materials, and in the fact the government had proffered no sworn statements backing its contention that it did not use privileged materials to obtain witness proffers. The government has completely allayed the Court's concerns. The United States has met its burden to demonstrate its agents have acted properly and that its case is untainted by privileged information.
Defendants take an overly expansive view of the government's burden in relation to this matter. Defendants adopt the entire framework of Kastigar, citing U.S. v. Hampton, 775 F.2d at 1485, for the proposition that the government cannot meet its burden merely by proffering testimony of agents' denials of use or derivative use of immunized testimony. However, this case involves no immunized testimony, and the Court finds the burden on the government is not at the same threshold. For this very reason, the Court designated the evidentiary hearing as an analog to "Kastigar," to wit: "Kastigar-like."
Each agent testified under oath that they have not seen or used any privileged emails or documents at any time during the course of the investigation, nor were any attorney-client emails or materials used in any of the proffer interviews with cooperators or their counsel. The Court found all the testimony credible. The Court rejects Chavan's arguments that Almaguer was obstructive and evasive. Almaguer's testimony was careful and deliberate, and in no way came across as disingenuous.
Defendants pile speculation upon speculation, and proffer no real evidence to impeach the government's witnesses. The fact that agents briefly viewed privileged materials in no way shows the Indictment resulted from outrageous action and disregard for the attorney-client and work product privileges. Even should the Court defer to Defendants' argument that it should not apply a standard of outrageousness to the government's actions here, the fact that agents credibly swore they did not use privileged information ends the analysis.
In the Court's view, Defendants could have impeached the government's witnesses had they proffered specific materials they could establish as privileged, that were in possession of the government, that contained information relevant to the Indictment, and that were not subject to the crime-fraud exception. Defendants did not do so. The most Defendants achieved, through Horstmann's testimony, was to show that despite the protections put in place by the government, protected materials got through the screening. This would have given the Court pause, if any of such documents involved explicit discussions between attorneys and Defendants concerning matters related to the charges in the Indictment. However, the mere existence of privileged documents does not nullify the agents' credible testimony that they did not use or rely upon privileged information.
In such a case, the assistance of a forensic examiner might be appropriate. However, the Court's review of Defendants' Exhibit G yielded no such materials. Indeed, many of the documents could be viewed as favorable to the defense. The Court found no "smoking gun." That said, too many attorney communications sifted through the government's screening. The government should have used key word searches to screen documents rather than relying on the removal of folders. Regardless, the government's action here resulted in no prejudice to Defendants.
Although Defendants protest that Almaguer allegedly violated Berkeley's corporate privilege when Wagner brought in and showed his laptop during an interview session, Defendants fail to designate a single document from such session that involved attorney communications. The only document any of the agents remembered — the Cossman email — was not transformed into a privileged document by the mere fact it was copied to an attorney.
The Court rejects Defendant Kellogg's theory that the government "used" privileged information by its simple possession of such information. The Court has found no evidence that the government coerced the cooperators for information based on the possession of privileged materials. The testimony elicited squarely refutes the notion that privileged materials were used or referred to. The fact that agents stopped cooperators from discussing privileged matters with a "WHOA, WHOA . . . we don't want to hear that!" shows they held the doctrines of attorney client and work product privileges in due regard.
Chavan's argument that the government must have relied upon evidence on his computer is speculative. By virtue of Chavan's information technology position in the company, and the technical expertise necessary to support the activities charged in the Indictment, the government had a basis to target Chavan for investigation. In the Court's view, a jury can ultimately determine relative culpability of each Defendant based on the evidence, or lack thereof, at trial.
Finally, the Court found credible Almaguer's testimony that the statements of the cooperators drove this case to Indictment. The government has expressed it has no intention to use privileged materials or any of the materials submitted to the taint team at trial. Under these circumstances, the Court finds no basis to dismiss the Indictment, to exclude any evidence in this case on the basis of alleged violations of privileges, or to pursue this matter further by appointing a forensic examiner.
V. Conclusion
Having reviewed this matter, the Court finds the government has met its burden of showing its case is untainted by the improper use of privileged information. The Court found credible the agent testimony to the effect that this case was driven to Indictment primarily on the basis of proffers of cooperators. The government represented it does not intend to use privileged communications or documents submitted to the taint team at trial. With these facts in mind, the Court REJECTS Defendants' arguments raised at the Kastigar-like hearing and in the accompanying memoranda, and unequivocally DENIES Defendants' Corrected Joint Motion to Bar the Government from Using the Evidence Obtained in Violation of the Defendants' Attorney-Client and Work Product Privileges and to Dismiss the Indictment Since Privileged Material Was Used to Secure It (doc. 116).
SO ORDERED.