The FBI used an informant, a Vice President of SK Foods, (who had been caught after stealing a million dollars and proprietary records from his prior employer) to conduct over 40 searches and seize over 1300 pages of internal records from Scott Salyer’s business (the alleged RICO Enterprise): including financial statements, product inventory records, pack plans and business forecasts, laboratory registers, emails and product labels in violation of a published handbook privacy and proprietary information policy. All of the records filled an investigative goal and tainted search warrants and Title IIIs.
The informant took product samples from the business, also against written policy manuals, and gave them to the FBI agent, who had them tested by the USDA and then destroyed. (The results of the tests by the USDA were misrepresented in Title III and search warrant affidavits prepared by the agents – product had no mold but was represented as such.) The agent was told in advance the informant was going to look for the samples with high mold and drove hundreds of miles from facility to facility looking for samples – this after the people in charge refused to let him look for them at one facility.
The FBI agent withheld from the Judge and DOJ the fact that his informant was taking the records when seeking the Title III and disguised the few he acknowledged by saying that he had told the informant not to access records he didn’t have access to “in the usual course of business.” He later didn’t tell the Magistrate Judge in six search warrant affidavits that he already had the records he was seeking, having received them from the informant.
The FBI agent did not tell the judge that he had complete access to the records when he expressed the requisite necessity for the Title III. He also did not disclose the fact that he had a second registered informant making undercover calls because to do so would have eliminated the necessity. On two occasions he instructed the informant to “shred scripts” for the calls and emails after making them. (In the 302’s)
The US Attorney has had the Sheriff’s Department record at least 35 telephone calls placed by the defendant to his attorneys, two of whom are registered with the jail as counsel in the criminal case, and on which counsel identified the call as attorney client privilege. At government direction the recordings were delivered to the US Attorney’s Office. (Counsel and the defendant discussed bail issues, defense plans and the case on the tapes.) The recordings were withheld for months until counsel demanded to know if he was being recorded and began asking for them under Rule 16. (The jail, paid overtime by the FBI for the custodial arrangements for this specific defendant, was instructed to hold and copy all of his personal mail and turn it over to the US Attorney.
This is not the first problem with the privilege – the FBI, just prior to the defendant’s arrest, sought a search warrant for the defendant’s Google emails knowing in that contained attorney client communications with defense counsel. They did not disclose the fact that they knew the emails were privileged to the Magistrate Judge and appointed another Criminal Division AUSA to serve as a taint team – he in turn read the entirety of the emails and resisted reporting the issue internally to the Department deciding “not to use them”. That conduct in reading privileged documents was a violation of California Bar Rules and could be the basis for the Office’s disqualification – I have my letter to him). Also, at the time of the searches in April 2008, the agents did not have a taint team with them and seize plainly marked attorney client privileged records – Scott says that there were multiple file cabinets of the same.
The prosecution has violated the Ogden policy by showering a million and a half documents on the defense (an in custody defendant) on dozens of CDs and hard drives with no index. Some of the documents are shuffled to make it more difficult to review them. 302s and are scattered throughout. They are still gathering the records from the constituent agencies 5 months after arresting the defendant. (FBI, Antitrust Division, USDA, FDA, and US Attorney). In one instance, the agent prepared a 302 a couple of weeks ago, three years after the events he was describing, and he created an after the fact paper trail with the USDA lab to explain why he had caused them to improperly destroy samples.
The agent in a personal press release on the FBI website characterized himself as a “victim” of the crime, along with other consumers.
The agent exceeded the scope of a judicial authorization to “video only” a meeting by recording the audio. (The DOJ authorization was for the DOJ attorney, an AUSA signed the application and the wrong sections were cited.)