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Document Filed Electronically

UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA : Criminal No. 04-373 (MLC)

v. :STOP HUNTINGDON ANIMAL :CRUELTY USA, INC.,KEVIN KJONAAS, a/k/a :Kevin Jonas, a/k/a SteveShore, a/k/a Jim Fareer, :LAUREN GAZZOLA,a/k/a Angela Jackson, a/k/a :Danielle Matthews,JACOB CONROY, :JOSHUA HARPER,

ANDREW STEPANIAN, :DARIUS FULLMER, andJOHN MCGEE :

MEMORANDUM OF THE UNITED STATES IN OPPOSITIONTO PRELIMINARY MOTIONS OF DEFENDANTS

CHRISTOPHER J. CHRISTIEUnited States Attorney970 Broad StreetNewark, New Jersey 07102(973) 645-2700

On the Memorandum:

Charles B. McKennaRicardo Solano Jr.Assistant U.S. Attorneys

Case 3:04-cr-00373-AET Document 48 Filed 11/12/04 Page 1 of 75

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TABLE OF CONTENTS

Preliminary Statement . . . . . . . . . . . . . . . . . . 1

Statement of Facts . . . . . . . . . . . . . . . . . . . 2

Argument . . . . . . . . . . . . . . . . . . . . . . . 16

I. HAVING ALREADY PROVIDED A COMPREHENSIVE ANDDETAILED SUMMARY OF THE MOTIONS CHALLENGING

THE SUPERSEDING INDICTMENT THAT HE INTENDS

TO FILE, THIS COURT SHOULD DENY DEFENDANT

KJONAASS REQUEST TO DELAY THE FILING OF

THOSE MOTIONS . . . . . . . . . . . . . . . . 16

II. THE UNITED STATES HAS COMPLIED WITH ALL OFITS OBLIGATIONS UNDER RULE 16 AND THESTANDING ORDER OF THIS COURT . . . . . . . . . 24

III. THE SUPERSEDING INDICTMENT SHOULD NOT BEDISMISSED AGAINST DEFENDANTS FULLMER ANDHARPER . . . . . . . . . . . . . . . . . . . . 27

IV. DEFENDANT FULLMERS REQUEST FOR SEVERANCELACKS FACTUAL AND LEGAL BASIS . . . . . . . . . 34

V. THE DEFENDANTS' REQUEST FOR A BILL OFPARTICULARS LACKS A FACTUAL AND LEGALBASIS . . . . . . . . . . . . . . . . . . . . . 37

VI. THIS COURT SHOULD REJECT DEFENDANTS REQUESTFOR DISCLOSURE OF GRAND JURY MATERIALS BASED

UPON MERE SPECULATION AND BARE ASSERTIONS . . . 47

VII. THE GOVERNMENT WILL PROVIDE THE DEFENDANTSWITH THE WIRETAP INFORMATION THEY HAVEREQUESTED . . . . . . . . . . . . . . . . . . . 55

VIII. THIS COURT SHOULD DENY DEFENDANT HARPERSSMOTION TO SUPPRESS BECAUSE THE WARRANT TOSEARCH HARPERS RESIDENCE WAS BASED UPONPROBABLE CAUSE AND IT DESCRIBED THE ITEMS

TO BE SEIZED WITH PARTICULARITY . . . . . . . 58

IX. THE GOVERNMENT HAS NO OBJECTION TO THEDEFENDANTS' REQUESTS TO JOIN IN THE


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APPLICABLE MOTIONS FILED BY THEIR RESPECTIVECO-DEFENDANTS . . . . . . . . . . . . . . . . . 70

X. THE DEFENDANTS SHOULD NOT BE PERMITTED TOFILE ADDITIONAL BRIEFS WITHOUT FIRST OBTAININGLEAVE OF COURT . . . . . . . . . . . . . . . . 71

Conclusion . . . . . . . . . . . . . . . . . . . . . . 72


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PRELIMINARY STATEMENT

The United States respectfully submits this memorandum of

law in response to preliminary motions submitted by the

defendants in this case. The United States respectfully reserves

its right to supplement its responses by oral argument.


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1 In his memorandum of law, defendant Kjonaas quotes liberally

from SHACs own propaganda material in both touting SHAC as a

grass roots activist organization and besmirching HLS. The

Government will move in limine to suppress defendants attemptsto paint HLS as a company that mistreats animals or violates the

law. Simply put, information of that sort, even were it true

and the Government does not concede that it is is irrelevant as

to whether or not the defendants violated the law. Vigilantism

the best that coud be said of defendants criminal activity

is not a defense to the charges in the Superseding Indictment.

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STATEMENT OF FACTS

The instant action arises from a conspiracy on the part of

the defendants, to force the closing of Huntingdon Life Sciences,

(HLS) an animal testing laboratory that operates a facility in

East Millstone, New Jersey.

Huntingdon Life Sciences (HLS) is a Delaware corporation

engaged in the business of contract animal testing, largely for

pharmaceutical companies. It has testing laboratories in the

United Kingdom and East Millstone, New Jersey. Stop Huntingdon

Animal Cruelty, USA, Inc., (SHAC) is a Delaware corporation

whose avowed purpose is shut down the HLS because it is involved

in the scientific testing of laboratory animals.

As alleged in the Superseding Indictment, SHAC was formed

with the specific purpose of interrupting the business of HLS and

to ultimately force it to cease operations altogether thereby

causing a disruption of its business1. SHAC was operated from a

residence at 101 Home Street in Somerset, New Jersey. Defendant

Kjonaas, the then President of SHAC, lived at 101 Home street

with defendants Gazzola, Conroy and others. As is set forth in


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2 Defendant Kjonaas states at page 5 of his memorandum of law

(hereinafter referred to as Kjonaas Mem.) that the Indictment

alleges that SHAC USA is a newsletter and website. The

impression left is that all SHAC USA does is operate these two

means of communication. However, SHAC engages in conduct beyond

the mere supplying of information.

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the Superseding Indictment, SHAC has, by its own account, used a

multi-pronged attack against HLS targeting its employees and

shareholders as well as companies (and their employees) which

receive services from, or provide services to, HLS. SHAC has

distributed a newsletter and operated a series of websites that

disseminated its animal rights ideology and furthered its mission

by, among other things, posting information relating to

individuals and organizations that SHAC targeted for action2.

Among the websites that SHAC has operated was

www.shacamerica.net. Information that has appeared on the SHAC

website has included names and addresses as well as other

personal information about individuals who were employed by HLS

and other targeted companies. The SHAC website and its other

means of communication were designed to target individuals and

companies for the purpose of direct action in order to force

them from doing business with HLS. Indeed, the purpose of the

SHAC website was to provide information to SHAC sympathizers and

to incite them to cause physical harm to property and emotional

harm to individuals all in furtherance of driving HLS out of

business thereby disrupting its business by forcing it to cease

its operations.

The Superseding Indictment alleges specific postings on the


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3 The Indictment was returned on or about May 20, 2004. The

individual defendants were Kevin Kjonaas, the then-president of

SHAC; Lauren Gazzola; Jacob Conroy; Joshua Harper; Andrew

Stepanian; Darius Fullmer; and John McGhee.

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SHAC website and when those postings were made. The Superseding

Indictment also alleges the date, time and place of specific

attacks that occurred after the SHAC website postings. Further,

the Superseding Indictment alleges the specific dates of postings

on the SHAC website that reported the accounts of attacks that

occurred and alleged the purpose of the postings to bring about

other attacks at the same locations or other locations provided

by the SHAC website. In short, the Superseding Indictment sets

forth a pattern of activity on the part of the defendants that is

specific as to time, place and manner. It fully appraises the

defendants of what they are charged with and permits them

information necessary to mount a defense.

Based upon this and other information, a grand jury sitting

in Newark, New Jersey returned a five Count Indictment against

SHAC and seven individuals3 charging in Count One a conspiracy to

violate Tile 18, United States Code, Section 43, the Animal

Enterprise Terrorism statute, in that the individual defendants

conspired with one another and with others to use a facility in

interstate and foreign commerce for the purpose of causing the

physical disruption to the functioning of HLS and to

intentionally damage and cause tho loss of property used by HLS

in an amount exceeding $10,000. Specifically, the defendants

targeted individuals and companies for the purpose of causing the


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4

Defendants argue that only direct harm to HLS can violate 18U.S.C. 43. However, harm to companies doing business with HLS

for the express purpose of disrupting the business of HLS in the

course of the conspiracy is actionable under the statute.

5 The individual defendants were Kevin Kjonaas; Lauren Gazzola;

Jacob Conroy.

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disruption of HLS business.4

Count Two charges SHAC and three of the individual

defendants with conspiring to violate the interstate stalking

statute, 18 U.S.C. 2261A(2), and Counts Three through Five

charged SHAC and the same three defendants5with substantive

counts of stalking. On September 16, 2004, the grand jury

returned a Superseding Indictment which added a sixth count

charging SHAC and four individual defendants with conspiring to

use a telecommunications device to abuse threaten and harass

persons contrary to 47, U.S.C. 223(a)(1)(C), in violation of 18

U.S.C. 371.

The essence of the conspiracy to violate the Animal

Enterprise Terrorism Statute is that the defendants, through the

use of the SHAC corporate entity, embarked on a campaign to

enlist and incite animal rights activists to engage in activity

meant to harm the business of HLS in any manner available --

including violence. SHAC utilized e-mail and web-based

communications to disseminate information and inflame its

constituency and call them to violent action. The defendants

also coordinated the activities of individuals in furtherance of

the campaign to shut down HLS and thereby disrupt its business


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6 Defendant Kjonaas argues that this posting and certain

others, alleged in the Superseding Indictment to have occurred

outside the time frame of the conspiracy, fail in and of

themselves to state a cause of action. See Kjonnas mem at p. 13.

As with other postings which occurred before the time frame forthe conspiracy in the Superseding Indictment, they remained on

the website after the start of the conspiracy and were therefore

adopted by the conspirators. In addition, they had an impact on

the victims who became aware of the activities of SHAC through

the postings that remained on the website when they themselves

became SHAC-targets.

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operations.

SHAC espoused and encouraged others to engage in what it

termed direct action. The SHAC website described direct action

as activities which operate outside the confines of the legal

system. For instance, the SHAC website posted what it termed

the top 20 terror tactics which described various types of

direct actions that could be taken against individuals6. These

tactics included:

demonstrations at ones home using a loudspeaker;abusive graffiti, posters and stickers on ones car andhouse;

invading offices and, damaging property and stealingdocuments;

chaining gates shut, and blocking gates;

physical assault including spraying cleaning fluid intoones eyes;

smashing the windows of ones house while the individualsfamily was at home;

flooding ones home while the individual was away;

vandalizing ones car;

firebombing ones car;


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bomb hoaxes;

threatening telephone calls and letters including threats tokill or injure ones partner or children . . . . . . ;

e-mail bombs in an attempt to crash computers;

sending continuous black faxes causing fax machines to burnout;

telephone blockades by repeated dialing to prevent the useof the telephone; and

arranging for an undertaker to call to collect ones body.

SHAC also coordinated telephone and e-mail blitzes as well

as computer blockades of HLS and companies that it targeted for

direct action. In order to facilitate these activities, the SHAC

website would list telephone numbers, facsimile numbers and

computer downloads which assisted individuals in sending massive

amounts of e-mails to targeted addresses. SHAC and the

defendants, through the use of the SHAC website, coordinated the

days that certain companies would be acted against in order to

maximize the damage caused by various methods of attack.

Perhaps the most insidious aspect of the SHAC campaign to

shut down HLS was the posting of personal information of people

who either worked for HLS or for companies that did business with

HLS. This information included home addresses, home telephone

numbers, the names of spouses and children of the employees and

other information such as the types of vehicles they owned, where

they went to church and where their children attended school.

Postings on the website encouraged and incited direct acting

against these people and very often acts of vandalism were


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perpetrated on the homes and personal property of the individuals

whose personal information appeared on the website.

Once direct action was carried out against these

individuals, the SHAC website reported on the vandalism in a

manner designed to foster additional acts of terror against those

employees as well as others whose information had been posted on

the SHAC website. For instance, the SHAC website posted

information on or about April 15, 2001 which stated in part that

well be at their offices, at their doorsteps and on their

computers. There will be no rest for the wicked.

As set forth in the Superseding Indictment, on or about

March 31, 2001, the SHAC website listed the name and address of

an HLS employee and within days, rocks were thrown through the

individuals home windows. One of his cars was overturned in his

driveway and a second car was vandalized. When the individual

ultimately left the employ of the HLS, the SHAC website touted

that he had resigned after months of pressure, including

protests property destruction, [and] home blockades at home and

work. This message was designed not only to spur others on to

similar actions but to warn other HLS employees that they too

were in harms way and could be targeted at any moment. Indeed,

as is set forth in the Superseding Indictment, other HLS

employees have also had information posted on the website about

them which led to acts of vandalism and destruction at their

homes. The end game of this conspiracy of terror was the

destruction of HLS.


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7 SHAC and the defendants believed that if they could force the

insurance broker from providing insurance services to HLS, it

would be forced to shut down its operations due to a lack of

liability and other insurance.

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This pattern of personal information being posted on the

SHAC website about employees of companies along with language

inciting violence against them; followed by attacks upon their

homes and personal property due to the incitement; followed by

SHAC website postings touting the attacks that occurred in a

manner designed to spur individuals on to additional direct

action; continued time and again over the years since 2001. Not

only were homes vandalized but clubs that employees belonged to

were also vandalized or harassed. For instance, as is set forth

in the Superseding Indictment, after posting the name of the golf

club where an employee of a company that provided insurance

services for HLS was to be,7the golf green of the golf course

were vandalized. That employees home was also vandalized.

These acts of violence, as set forth in the Superseding

Indictment, were then reported on the SHAC website. Indeed, in

one posting on the SHAC website, it boasted that [d]amages from

this action may in fact exceed hundreds of thousands of dollars

between the damage to the well maintained golf course, the

disruption to the PGA event and to the club itself. In yet

another instance set forth in the Superseding Indictment an

employee of a company that SHAC targeted because SHAC believed it

did business with HLS had information about an orienteering club

that she belonged posted on the SHAC website stating in part:


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8 In order to ensure the anonymity of the callers and senders

of faxes, as is set forth in the Superseding Indictment, the SHAC

website instructed its followers to utilize the *67 function to

successfully block caller identifications systems from divining

the callers telephone number.

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groups dressed in menacing garb. These individuals, and the

activities which occurred to cause the emotional distress they

live with, are set forth in the Superseding Indictment and borne

out in the discovery provided to the defendants. Indeed, various

videotapes chronicling the stalking activity has been turned over

during discovery.

Finally, as is set forth in the Superseding Indictment,

certain of the defendants conspired to use a telecommunications

device to abuse, threaten and harass persons without disclosing

their identity in violation of 47 U.S.C. 223(a)(1)(c). The

defendants caused the flooding of business with telephone calls,

caused individuals to be harassed at their homes with telephone

calls and caused black faxes to be sent to companies all with the

purpose of abusing and harassing the recipients of the calls and

faxes8. Any doubt about the intent of the defendants is

dispelled by a review of the SHAC web postings as well as the

statements of the defendants themselves. Indeed, defendant

Harper, in a tape that was provided to the defendants in

discovery stated:

as I explained earlier, how to use black faxes, ifyouve got access to a fax machine, boy, I cant tellya how great it is. Like uh, ya hit star six seven, yadial the fax number and you feed it about three sheetsof those and ya tape em end to end to end and I - itknocks out the entire line of communication. And Ive


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worked for-for like, the dumb corporations like Horusbefore well not exactly Corus, but I know that doinglike secretarial work at places like that, it you hadto deal with that sort of thing coming through all thetime, it would definitely, uh, raise a siege mentalitylevel, in uh, the workplace.

Unfortunately for the victims of SHACs campaign, defendant

Harper was correct.

Following the arraignment of the defendants on June 15,

2004, the Court entered its Standing Order for Discovery and

Inspection. The Standing Order was augmented with a Complex Case

Order entered by this Court on August 3, 2004 which set forth an

amended schedule for pretrial motions and trial. Consistent with

Courts orders and Rule 16 of the Federal Rules of Criminal

Procedure, the United States made voluminous discovery available

to the defendants including:

1. Statements of the defendants;

2. The defendants' criminal records to the extentapplicable;

3. FBI Reports (302's);

4. Wiretap and electronic surveillance applications,affidavits and orders;

5. A large amount of electronic media, including,over 50 floppy disks, zip drives, nine computerhard drives, and various CD ROMS;

6. Approximately 72 videocassette tapes;

7. More than 500 cassette tapes;

8. Transcripts for most of the cassette tapes.

In addition, the Government has made available for defendants and

their attorneys to view, the large amount of items seized from


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9 Save for a few hours, counsel for the defendants have largely

ignored this material.

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the search of 101 Home Street9 as well as the items seized form

Joshua Harper during a Court-authorized search. It should be

noted that while the discovery is large in volume, it deals

mostly (save for the wiretap material) with information

peculiarly within the possession and knowledge of the defendants.

Indeed, all of the electronic media belonged to the defendants.

They understand how it was created, how it was organized, how it

was encrypted and what it means. Accordingly, the defendants are

in a far better position than to Government to quickly assess the

information and its meaning. The defendants would have this

Court believe that the information is alien to them when in fact,

save for the Title III information, it all belongs to or was

created by them. Hence their claims that they are overwhelmed by

the material ring somewhat hollow.

The United States also informed defendants on June 25, 2004

that it was not then aware of any exculpatory evidence within the

purview of Brady v. Maryland, except to the extent that the

statements included in the aforementioned discovery list

represented such evidence.

Notwithstanding all of the discovery already provided, the

defendants, now claim that the lack sufficient information to

understand and prepare a defense. Defendants have made the

following motions:

1. Seeking an Order dismissing The Indictment against


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defendant Fullmer for failure to set forth a cause of

action against him;

2. Seeking an Order dismissing the Indictment against

defendant Harper because the Superseding Indictment is

vague and lacks probable cause as to him;

3. Seeking a Bill of Particulars;

4. Seeking an Order compelling the Government to turn over

grand jury transcripts and texts of any charge

instructions provided by the United States Attorneys

Office foe use by the grand jury:

5. Seeking on order compelling the Government to present

in camera to the Court an Affidavit setting forth

information about the grand jury that heard the case;

6. Compelling discovery of information cited as the basis

for the wiretap intercept surveillance and search

orders issued by federal courts in this case;

7. Seeking an Order suppressing evidence obtained during a

Court-authorized search of the residence of defendant

Harper;

8. Seeking an Order severing defendant Fullmers case from

the other defendants;

9. Seeking an adjournment of later motions; and

10. Permitting defendants to join in the applicable motions

filed by their co-defendants.

For the reasons set forth below, the United States asserts

that each of the motions, with the exception of number 8, should


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be denied.


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ARGUMENT

I. HAVING ALREADY PROVIDED A COMPREHENSIVE AND DETAILED SUMMARY

OF THE MOTIONS CHALLENGING THE SUPERSEDING INDICTMENT THAT

HE INTENDS TO FILE, THIS COURT SHOULD DENY DEFENDANT

KJONAASS REQUEST TO DELAY THE FILING OF THOSE MOTIONS.

In Point I of his memorandum, defendant Kjonaas lays out a

comprehensive, 25-page preview of the motions he intends to file

challenging the Superseding Indictment in this case.

Notwithstanding this detailed and lengthy exercise, Kjonaas

concludes that he cannot file his motions to dismiss the

Superseding Indictment because he needs additional discovery, and

asks this Court to adjourn the date for filing those motions.

Kjonaas Mem. at 61. Kjonaass assertion that an adjournment is

necessary is contradicted by his own discourse in Point I.

Indeed, the motions that defendant Kjonaas identifies in

Point I of his Memorandum of Law target the validity of the

Superseding Indictment. Whether the Superseding I ndictment is

valid on its face, however, is not dependent upon the discovery

(or alleged lack of discovery) provided to a defendant. This is

so because a defendant cannot use the discovery provided to

challenge the sufficiency of an indictment. See United States v.

Gallagher, 602 F.2d 1139, 1142 (3d Cir. 1979) (recognizing that

"the sufficiency of an indictment may not be properly challenged

by a pretrial motion on the ground that it is not supported by

adequate evidence") (citations and quotation marks omitted);

United States v. DAlessio, 822 F. Supp. 1134, 1140 (D.N.J. 1993)


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(concluding that defendants arguments to dismiss certain parts

of the indictment are without merit because they require the

court to make factual findings regarding the sufficiency of the

Governments evidence). Accordingly, this Court should require

defendant Kjonaas to proceed with the motions he has already set

forth in Point I without further delay.

Until such time as defendant Kjonaas actually files his

motions to dismiss the Superseding Indictment, this Court should

disregard Point I of defendant Kjonaass memorandum (i.e., pages

9 through 34). A litigant is not entitled to obtain, and this

Court lacks the authority to issue, an advisory opinion. E.g.,

In re Coffin, 90 F.3d 851, 853 (3d Cir. 1996) ("The oldest and

most consistent thread in the federal law of justiciability is

that federal courts will not give advisory opinions.") (quoting

Wright, Miller, Cooper, Federal Practice and Procedure, 3529.1,

p. 293 (2d ed.1984)). Hence, because Kjonaas is not seeking any

actual relief in Point I, it is inappropriate to brief and argue

the bases for his prospective motions to this Court for no

apparent purpose other than to orient (or disorient) the Court as

to the merits of his future motions and the applicable case law.

This gambit of arguing matters to the Court for no apparent

reason but to gain an advantage at some later point, seems

superfluous and improper.

Presenting a preview of the motions defendant Kjonaas


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intends to raise, without placing the issue squarely before this

Court, wastes this Courts resources requiring it to consider

non-issues. It also wastes the Governments resources because

it requires the Government to either answer to motions not yet

filed or allow defendants version of the facts and skewed

presentation of the case law to go unanswered.

For example, defendant Kjonaas alleges that the Superseding

Indictment fails to state a valid cause of action under the

Animal Enterprise Terrorism statute, 18 U.S.C. 43. See Kjonaas

Mem. at 10-19. For the reasons discussed in the Governments

Statement of Facts, the Superseding Indictment is sufficient on

its face. The Government, however, reserves its right to respond

to defendant Kjonaass arguments until such time as he actually

presents his motion.

Defendant Kjonaas also attempts to persuade this Court that

the activities alleged in the Superseding Indictment are

protected speech and clearly not a crime. Kjonaas Mem. at

14, 22, 31-34. Notwithstanding defendant Kjonaass conclusory

assertions and citations to numerous First Amendment opinions,

this Court will ultimately have to decide this issue after

complete briefing from all parties. At such time, the Government

intends, among other things, to point out that defendant

Kjonaass contention that speech is protected under the First

Amendment unless it rises to the level of inciting violence


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10 The Government will also argue that the Supreme Courts

definition of a true threat i.e., speech made with the intent

of placing the victim in fear of bodily injury or harm

encompasses the elements of interstate stalking i.e., using the

mail or any facility of interstate commerce with the intent to

place a person in another State in reasonable fear of the death

of, or serious bodily injury to, that person, a member of theimmediate family . . . or a spouse or intimate partner fo that

person. 18 U.S.C. 2261A(2). As a result, if the jury finds

beyond a reasonable doubt that the defendants charged in Counts

Two through Five engaged in interstate stalking in violation of

2261A, their conduct by definition would not be protected

under the First Amendment.

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ignores Supreme Court precedence which holds that the First

Amendments protections do not extend to acts of intimidation, a

type of true threat i.e., where a speaker directs a threat to

a person or group of persons with the intent of placing the

victim in fear of bodily harm or death. Virginia v. Black, 123

S. Ct. 1536, 1548 (2003). Simply put, speech that is intended to

intimidate others is not protected even if it does not rise to

the level of inciting unlawful conduct. Furthermore, the

Government will argue that, when placed in its proper context,

the defendants conduct in this case fell well outside First

Amendment protection. While it is clear that the First Amendment

protects ones right to engage in political activity, simply

citing the First Amendment does not give anyone carte blanche to

engage in unlawful acts of intimidation, harassment, and

stalking.10

Defendant Kjonaass also incorrectly suggests to this Court

that the Interstate Stalking statute is not applicable in this


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case. Kjonaas Mem. at 19-20. Contrary to Kjonaass suggestion,

however, the Interstate Stalking statute is not limited to

flagrant incidents of domestic stalking. Id. at 19; see

also Comment, Cyberstalking: Can Communication Via The Internet

Constitute A Credible Threat, And Should An Internet Service

Provider Be Liable If It Does?, 17 Santa Clara Computer & High

Tech. L. J. 115 (Dec. 2000) (available on Westlaw at 17 SCCHITLJ

15) (discussing the concept of cyberstalking i.e., use of the

Internet, e-mail or other electronic communications devices to

stalk another person through threatening behavior). Section

2261A makes it unlawful for any person to use a facility of

interstate commerce for the purpose of placing a person in

another State, a member of that persons family, or that persons

spouse or intimate partner in reasonable fear of death or serious

bodily injury. 18 U.S.C. 2261A. Hence, if any individual as

the Government has alleged in the Superseding Indictment and

intends to prove at trial the defendants have done uses (or

conspires to use) the internet and e-mails to place others in

reasonable fear of serious bodily, then it is a violation of the

interstate stalking statute. Compare United States v. Bowker,

372 F.3d 365, 389 (6th Cir. 2004) (finding that evidence of

defendants threats, including I know all of your neighbors . .

. . I know the names of all your relatives and where they live,

were sufficient to satisfy cyberstalking count under 18 U.S.C.


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2261A) with Superseding Indictment 48 (SHAC website posting

stating: We have been monitoring the protection and home for

quite some time now, FT we were well aware of the security

patrols at your home . . . . Did you think that armed guards or

the installation of motion sensors, cameras, lights, and steel

grating around your basement windows would somehow make the

animal liberation movement go away?); and 64 (SHAC website

posting warning C. Corp. employees, We know where you are, we

know what you look like we know where you socialize and best of

all we know where you live).

Similarly, defendant Kjonaass argument that the

Communications Act of 1934, 47 U.S.C. 223(a)(1)(C) (the offense

charged in count six of the superseding indictment), cannot be

constitutionally applied in this case fails because it ignores

the particular facts of this case. Defendant Kjonaas relies upon

United States v. Popa, 187 F.3d 672 (D.C. Cir. 2003). In Pope,

the Court of Appeals found that the statute was unconstitutional

as applied to that particular defendant because he engaged in

protected speech i.e., he called the U.S. Attorneys Office to

complain about the actions of a government official. 187 F.3d

at 677-78. In reaching this conclusion, the Court agreed with

the Third Circuit that the interest protected by 223(a)(1)(C)

is the protection of innocent individuals from fear, abuse, or

annoyance at the hands of persons who employ the telephone, not


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11

Contrary to Kjonaass claim that the black faxes were not

anonymous, when a victim receives a black fax from a blocked

number, it is unquestionably an anonymous communication.

- 22 -

to communicate, but for other unjustifiable motives. Id. at 677

(quoting United States v. Lampley, 573 F.2d 783, 787 (3d Cir.

1978)).

The superseding indictment in this case charges that Kjonaas

and others conspired to send black faxes. Superseding

Indictment 2. Unlike the political discourse at issue in Pope,

an anonymously sent black fax does not express any message.11

Indeed, as set forth in 6, black faxes according to the

top 20 terror tactics posted by the SHAC website are not

intended to send a message, but rather, to caus[e] fax machines

to burn out. Hence, as the evidence at trial will establish,

the clear purpose of conspiring with others to send the black

faxes was to annoy and harass the recipient the very interest

the Third Circuit has recognized 223 intends to protect. For

that reason, the violation of 47 U.S.C. 223 charged in the

superseding indictment is not barred by the First Amendment.

Last, defendant Kjonaass lengthy discussion of his intent

to file a claim of selective prosecution should also be

disregarded by this Court. See Kjonaas Mem. at 25-30. Missing

from defendant Kjonaass argument, is any discussion of the

relevant legal standard. In particular, defendant Kjonaas has

not proven that (1) similarly situated individuals were not


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12 In the context of this discussion, defendant Kjonaas

summarily asserts that only acts involving HLS directly could be

argued by the Government to fall within the scope of the Animal

Enterprise Terrorism statute, 18 U.S.C. 43. Kjonaas Mem. at

25. This assertion misses the mark. The Governments allegation

is that the defendants conspired to shut down HLS throughunlawful means including intimidating, harassing, and

threatening companies and its employees that are clients of HLS

or do business with HLS. It is in that context that the

defendants actions targeted at these companies and their

employees are probative of the defendants criminal conduct under

18 U.S.C. 43.

- 23 -

prosecuted; and (2) the decision to prosecute him was

intentionally based upon an unconstitutional motive. See United

States v. Armstrong, 517 U.S. 456, 464, 465 (1996); United States

v. Bell, 113 F.3d 1345, 1351 n.6 (3d Cir. 1997) (stating that a

defendant must make out a difficult prima facie showing that she

was selected for prosecution for an invidious reason). Kjonaas,

therefore, has failed to even articulate a valid claim of

selective prosecution.12

In sum, the Government will respond to defendant Kjonaass

motion with these arguments and others when he actually files his

motions. Until such time, this Court should disregard the issues

itemized by Kjonaas in Point I.


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II. THE UNITED STATES HAS COMPLIED WITH ALL OF ITS OBLIGATIONSUNDER RULE 16 AND THE STANDING ORDER OF THIS COURT.

Through their motions, the defendants seek additional

discovery beyond that required by Fed. R. Crim. P. 16, Brady, the

Jencks Act, and the Court's Discovery Order. To date, the

government has complied with all of the legal obligations imposed

upon it and has provided the defendants with extensive discovery

materials. Therefore, any additional requests are without basis.

Rule 16 sets forth the various categories of items subject

to disclosure. The rule provides for discovery of four types of

information: (1) the defendants' written and recorded statements

and the substance of statements they made to those they knew were

government agents at the time of the utterance; (2) the

defendants' prior records; (3) documents and objects; and (4)

scientific reports.

Beyond the dictates of Rule 16, the Standing Order of the

Court further obligates the United States to disclose with its

pretrial discovery any exculpatory evidence within the purview of

Brady v. Maryland. Stated succinctly, Brady requires the

disclosure of all evidence favorable to the defendant that is

material to guilt or to punishment. Brady v. Maryland, 373 U.S.

83, 87 (1963). The Government acknowledges the Brady

requirement, but does so mindful of the contours of its

obligation. As former Chief Judge Seitz has made clear, "there

is no constitutional obligation on the prosecution to disclose

all materials that would be helpful to the defendant in preparing


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a defense. If there were such an obligation, the prosecution

would be obliged to 'open its files' because it would obviously

be helpful to know the government[s] entire case, including

incriminat[ory] as well as exculpatory evidence." United States

v. Cuthbertson, 651 F.2d 189, 200 (3d Cir.) (Seitz, C.J.,

concurring), cert. denied, 454 U.S. 1056 (1981).

The United States has already provided the defendants with

more information than the Federal Rules or the Court's Order

require, and with all information that may contain exculpatory

materials. Specifically, no defendant made any post-arrest

statements. However, the United States has attempted to provide

t0 defendants all statements in its possession that any defendant

did make. This is a rather daunting task given the amount of

statements that were made during the course of this

investigation. Because of that, the Government continues to

provide to defendants the substance of any statements they have

made. In addition, the Government has provided the defendants

with voluminous reports and other documents concerning the

investigation of this action, as well as voluminous documents and

other items including computer hard drives, CD ROMS, zip drives,

items seized from searches, wiretap applications and orders,

hundreds of cassette tapes embodying conversations of the

defendants and other statements made by them and numerous

videotapes. Indeed, in defendant Kjonaas memorandum he states

that [t]he discovery has been voluminous in this case.

Moreover, in addition to the discovery provided to the


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defendants, there is a large amount of additional discovery that

they have been invited to view at their convenience.

Based upon this information, the defendants can easily

discern the thrust of the prosecution and adequately prepare a

defense. Thus, both the letter and the spirit of the discovery

rule and the Order of the Court have been satisfied. The

additional material that the defendants have requested does not

fall within any category of discoverable information, and

therefore the defendants' request for additional disclosure lacks

legal basis and should be denied.


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13

The Fullmer memorandum of law is not paginated. Citations toit will be made by using the page beginning with STATEMENT OF

FACTS AND PROCEDURAL HISTORY as page 1 and counting from there.

14 Defendant Harper alludes to the First Amendment in his

argument to dismiss. It is the Governments understanding at

this time that the First Amendment attack on the Superseding

Indictment an attack which the Government understands will be

made or joined in by all defendants will be made in future

motions to this Court. Rather than argue that point at this time

on a less-than-complete record, the Government will address the

claimed facial invalidity of the Superseding Indictment as to

defendant Harper and leave the First Amendment claims for thelater motions. In this manner, the Court will have before it an

in-depth analysis of the issue by all parties which will place it

in the best position to make a decision. The Government does not

and will not object to defendant Harper joining in that future

motion whether by additional argument or by joining in the

arguments made by his co-defendants.

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III. THE SUPERSEDING INDICTMENT SHOULD NOT BE DISMISSED AGAINSTDEFENDANTS FULLMER AND HARPER.

Defendant Darius Fullmer and Joshua Harper argue, for

similar reasons, that the Superseding Indictment should be

dismissed as against them. Defendant Fullmer argues that the

Government has not set forth a cause of action as to him (Fullmer

Mem. at 713), while defendant Harper argues that no probable

cause is revealed to support the Superseding Indictment.

(Harper Mem. at 7). In essence, both defendants argue that the

case should be dismissed as against them because the Superseding

Indictment itself is lacking14.

For purposes of ruling on a motion to dismiss an indictment,

all well pleaded allegations in the indictment are taken as true.

United States v. Eichman, 756 F. Supp. 143, 146 (S.D.N.Y. 1971),

aff'd, 957 F.2d 45 (2d Cir. 1992). Moreover, as the Eichman


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Court stated, "[a] motion to dismiss is not a device for the

summary trial of the evidence; it is addressed only to the facial

validity of the Indictment." Indeed, if an Indictment is valid

on its face, it cannot be challenged on the ground that it cannot

be supported by competent evidence. Costello v. United States,

359, 363 (1956); United States v. Eisenberg, 773 F. Supp. 662,

709 (D.N.J. 1991). In Costello, the Supreme Court held that

"[a]n indictment returned by a legally constituted grand jury ...

if valid on its face, is enough to call for a trial of the

charges on the merits," reasoning:

If indictments were to be held open to challenge on theground that there was inadequate and incompetentevidence before the grand jury, the resulting delaywould be great indeed. The result of such a rule wouldbe that before trial on the merits a defendant couldalways insist on a kind of preliminary trial todetermine the competency and adequacy of the evidencebefore the grand jury. This is not required by theFifth Amendment.

So long as the indictment sets forth the elements of the

offense in sufficient detail to provide the defendant with notice

of the charges against him and does not present double jeopardy

problems, it is impervious to attack on a motion to dismiss.

Hamiling v. United States, 418 U.S. 87, 117 (1974), United States

v. Donsky, 825 F.2d 746, 749 n.5 (3d Cir. 1987); United States

v. Eichman, 756 F. Supp. at 146. It is sufficient for an

Indictment to track the statutory language, "so long as there is

sufficient factual orientation to permit the defendant to prepare

his defense and to invoke double jeopardy in the event of a

subsequent prosecution." United States v. Shirk, 981 F,2d 1382,


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1389 (3d Cir. 1992), quoting, United States v. Olatunji, 872 F.2d

1161, 1166 (3d Cir. 1989); United States v. Eufrasio, 935 F.2d

553, 575 (3d Cir. 1991), cert. denied, 112 S.Ct. 340 (1991). See

also, United States v. Scanzello, 832 F.2d 18, 22 (3d Cir.

1987)(conspiracy indictment sufficient if elements of offense are

alleged).

The elements of the charged offenses are: that each

defendant conspired and agreed with others to use the facilities

of interstate commerce for the purpose of causing a physical

disruption to the functioning of Huntingdon Life Sciences, an

animal enterprise as defined under the statute and intentionally

agreed to cause a loss of property to HLS in an amount exceeding

$10,000. The allegations in the Superseding Indictment allege

that the defendants conspired to shut down HLS which would have

caused a cessation of its business and therefore a disruption of

its work, causing a loss in excess of $10,000. The Superseding

Indictment, coupled with the voluminous discovery produced to

date, clearly indicates how each defendant was involved in the

conspiracy.

The second conspiracy, involving defendant Harper, alleges

that he and others, including defendants Kjonaas, Gazzola and

Conroy, knowingly agreed to utilize a telecommunications device

to abuse, threaten and harass persons at the called number who

received the communication without disclosing the identity of the

person utilizing the telecommunications device. In particular,

the Superseding Indictment alleges that the defendants charged in


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15

In addition, the Superseding Indictment also chronicles the

use of what SHAC referred to as e-mail and telephone blitzes

which were designed to harass and annoy various individuals at

HLS and companies that HLS did business with in furtherance of

the defendants campaign to shut down HLS.

- 30 -

Count Six urged and agreed to have people send what are known as

black faxes to companies for the express purpose of annoying

them by monopolizing the recipients fax machines which printed

out totally black pages, thereby using excess amounts of ink,

taking large amounts of time, and in instances, burning out he

facsimile unit altogether15. The Superseding Indictment also

alleges that each of the defendants performed certain acts in

furtherance of the scheme.

Thus, the charges are specifically set forth in the

Superseding Indictment and there is a more than ample factual

orientation to permit the defendants to prepare their defenses.

Moreover, there is sufficient particularity in the Superseding

Indictment to permit the defendants to invoke double jeopardy in

the event of a subsequent prosecution for the same offense.

Defendant Fullmer cites two cases in support of his

argument, both of which are inapposite to the instant motion and

both of which favor the denial of his motion. In United States

v. Lyons, 53 F.3d 1198 (11th

Cir. 1995), the Court affirmed the

conviction of a defendant after trial. The case does not deal

with dismissal of a matter based upon an infirmity in the

indictment. Thus, citation to Lyons does not support defendants

argument.


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United States v. Locasio, 6 F.3d 924 (2d Cir. 1993) is

similar to Lyons. In Locasio, the defendants were convicted

after trial. Defendant Locasio argued on appeal that he should

not have been convicted merely for his presence at certain

meetings. Locasio, 6 F.3d at 944. The Government had proven at

trial that he presence at certain meetings, even thought he did

not speak, was an important fact in the full panorama of events.

Id. Ultimately, the Court, in rejecting the defendants arguments

and holding that the jury was entitled to consider whether it was

likely that the defendants mere presence was in furtherance of

the conspiracy, stated that the government did far more than

establish mere presence. Id. at 945. So too here, the ultimate

resolution of this matter should await the presentation of

evidence by the Government and the deliberation of the facts by a

jury.

Both defendants Fullmer and Harper misperceive the pleading

and proof requirements of the overt acts in furtherance of the

conspiracies in this case. Both seem to understand that the

Government must allege all of the overt acts in furtherance of

the conspiracy in the Superseding Indictment. Indeed, both argue

that they are not named in many of the overt acts and that in

some way supports their argument for dismissal. However, the

Government is not limited in its proof at trial to those overt

acts alleged in the Indictment. United States v. Adamo, 534

F.2d 31, 38 (3d Cir. 1976). Moreover, the Government is under

no obligation to prove every overt act alleged. Id. All that


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is required is that the Government prove that a single overt act

in furtherance of the Superseding Indictment be proven to the

jury beyond a reasonable doubt. The overt act need not even be

in itself illegal. United States v Palmeri, 630 F.2d 192, 200

(3d Cir. 1990), citing Braverman v. United States, 317 U.S. 49,

53, 63 S.Ct. 99, 101, 87 L.Ed.2d 23 (1942). Thus, this matter

must await trial where the Government will be put to its burden

of proof. Accordingly, defendants motion to dismiss at this

time should be denied.

Defendant Harper seeks dismissal of the Superseding

Indictment because it is vague and lacks probable cause (Harper

Mem. at 7) yet cases that he cites do not address either of those

points. Rather, he argues that the First Amendment precludes the

Government from prosecuting him. See Terminiello v. Chicago, 337

U.S. 1, 69 S.Ct. 894, 93 L.Ed. 113 (1949); Bridges v. California,

314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941); Craig V. Harney,

331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); and Herndon ve

Lowrey, Sheriff, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066

(1937). As is set forth above, that argument and its resolution

should await further briefing by all parties. The argument made

here -- that the Superseding Indictment is vague and lacks

probable cause is, for the reasons set forth above, lacking in

merit and should be dismissed.


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IV. DEFENDANT FULLMERS REQUEST FOR SEVERANCE LACKS FACTUAL ANDLEGAL BASIS.

Defendant Fullmer asserts that he cannot receive a fair

trial unless he is severed for trial from his co-defendants. For

the reasons set forth below, this is not supported by law or

fact.

Rule 8(b) permits the joinder of defendants in the same

indictment if they are alleged to have participated in the same

act or transaction or series of acts or transactions constituting

an offense. If the pleadings allege participation in the same

act or series of acts, this is sufficient to justify joinder,

even if the count of the indictment alleging this participation

is ultimately dismissed. Schaeffer v. United States, 362 U.S.

511, 514 (1960). The Court of Appeals for the Third Circuit has

found that since a conspiracy claim "provides a common link, and

demonstrates the existence of a common scheme or plan" it

satisfies the "series of acts" requirement. United State v.

Somers, 496 F.2d 723, 729 (3d Cir.), cert. denied, 419 U.S. 832

(1974). Relatedly, the Third Circuit has expressed a clear

preference in conspiracy cases "to have all of the parties tried

together so that the full extent of the conspiracy may be

developed." United States v. Provenzano, 688 F.2d 194, 199 (3d

Cir.), cert. denied, 459 U.S. 1071 (1982); accord United States

v. Dickens, 695 F.2d 765, 773 (3d Cir. 1982), cert. denied, 460

U.S. 1092 (1983). In such cases, the important interest in

judicial economy usually weighs in favor of trying the defendants


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in a single trial. Dickens, supra at 779.

Under Rule 14 of the Federal Rules of Criminal Procedure,

however, the court has the discretion to grant a severance of the

defendants if it appears that the defendant or government will be

prejudiced by a joint trial. Neither mere allegations of

prejudice nor the assertion that a severance would improve a

defendant's chance for acquittal justifies a severance. United

States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981).

Similarly, a defendant is not entitled to severance merely on the

basis of a disparity in the strength of the evidence against a

co-defendant, since "if that were the case, a joint trial could

rarely be held." United States v. Dansker, 537 F.2d 40, 62 (3d

Cir. 1976), cert. denied, 429 U.S. 1038 (1977). See also United

States v. Adams, 759 F.2d 1099, 1113 (3d Cir.), cert. denied, 474

U.S. 906, 971 (1985); United States v. Simmons, 679 F.2d 1042 (3d

Cir. 1982), cert. denied, 462 U.S. 1134 (1983).

Instead, a defendant must show that the evidence is so

complex or confusing that a jury could not compartmentalize the

evidence and consider it for its proper purposes, Dansker, 537

F.2d at 62; United States v. DeLarosa, 450 F.2d 1057 (3d Cir.

1971), cert. denied, 405 U.S. 957 (1972), and that the failure to

sever clearly and substantially prejudices him to the point of

depriving him of a fair trial. Reicherter, 647 F.2d at 400.

In the case at bar, each defendant is on trial for

conspiring with others, through illegal actions, to shut down

HLS. Each of the defendants including Fullmer - has


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16

To this end, the United States respectfully suggests that the

Court instruct the jury in accordance with the dictates of the

case law cited above regarding the consideration it should give

the evidence offered against each defendant.

- 35 -

participated in one or more acts in furtherance of the object of

the conspiracy. This conspiracy, and the acts engaged in to

further its object, provide a satisfactory basis for a joint

trial of these defendants.

Moreover, the nature of the evidence against each defendant

is not complex or confusing. Rather, the evidence against each

defendant can be compartmentalized by the jury and the Court can

instruct the jury regarding the proper use of the evidence.16

For all these reasons, the defendant's request for severance is

without basis and should be denied.


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17

Moreover, Point I of the memorandum of law of defendantKjonaas sets forth the arguments that will be made to dismiss the

Superseding Indictment and none appear to be wanting for

additional factual underpinnings. Indeed, the instant motion

seems more a tactical ploy for more time than a request seeking

information that is needed in order to file dispositive motions.

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V. THE DEFENDANTS' REQUEST FOR A BILL OF PARTICULARS LACKS AFACTUAL AND LEGAL BASIS.

The defendants assert that they need a Bill of Particulars

to prepare their defense. Indeed, they claim that they need this

information in order to challenge the constitutionality of the

statutes under which they are charged. This request lacks basis

in law and fact. Since the Superseding Indictment provides

adequate notice of the factual bases for the charges, and in

light of the discovery that they have received to supplement the

facts contained therein, the defendants request seeks

information far beyond that permissible in a bill of particulars

and beyond the scope of permissible discovery. Therefore, the

request should be denied17.

Under the law of this circuit, a "motion for a bill of

particulars should be granted whenever an indictment's failure to

provide factual or legal information significantly impairs the

defendant's ability to prepare his defense or is likely to lead

to prejudicial surprise at trial." United States v. Rosa, 891

F.2d 1063, 1066-67 (3d Cir. 1989). As the Court of Appeals

stated in United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir.

1971), cert. denied, 405 U.S. 936 (1972):

The purpose of the bill of particulars is to inform the


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defendant of the nature of the charges brought againsthim to adequately prepare his defense, to avoidsurprise during the trial and to protect him against asecond prosecution for an inadequately describedoffense . . . . A bill of particulars should fulfillthis function when the indictment itself is too vague

and indefinite for such purposes.

(Quotation marks omitted). A bill of particulars is not an

investigative vehicle for the defense and it is not a discovery

tool to obtain disclosure of the Government's case prior to

trial. United States v. Kilrain, 566 F.2d 979, 985 (5th Cir),

cert. denied, 439 U.S. 819 (1978). Rather, the bill is "intended

to give the defendant only that minimum amount of information

necessary to permit the defendant to conduct his own

investigation." United States v. Smith, 776 F.2d 1104, 1111 (3d

Cir. 1985). If the defendant can derive this information from

the indictment and discovery, see United States v. Boffa, 513 F.

Supp. 444, 485 (D. Del. 1980), aff'd in part, rev'd in part on

other grounds, 688 F.2d 919 (3d Cir. 1982), cert. denied 460 U.S.

1022 (1983), then there is no need for the bill to issue. Thus,

as long as the Superseding Indictment itself enables the

defendants to understand the accusations against them and the

facts that the Government will present at trial, a bill of

particulars is unnecessary and inappropriate. See United States

v. Deerfield Specialty Paper, 501 F. Supp. 796, 810 (E.D. Pa.

1980). Consequently, a bill should be granted only where the

indictment is so vague as to be unfair.

Moreover, in evaluating a request for a bill of

particulars, the court must examine the information already


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provided by the government through discovery or by other means.

United States v. Parlavecchio, 903 F.Supp. 788, 795 (D.N.J.

1995); see also United States v. Caruso, 948 F. Supp. 382, 393

(D.N.J. 1996) (when discovery provided by the government fills

in the outline of the indictment, the necessity of the bill of

particulars declines).

In this case, the defendants have been supplied with the

"central facts" via the details set forth in the Superseding

Indictment, and the discovery that the Government has provided to

date. See United States v. Vastola, 670 F. Supp. 1244, 1269

(D.N.J. 1987, aff'd in part, rev'd in part on other grounds, 899

F.2d 211 (3d Cir. 1990). The breadth of this information will

enable the defendants to prepare their defense as well as to

avoid both surprise and the risk of double jeopardy. See Boffa,

513 F. Supp. at 458. Viewed together, the defendants have been

sufficiently informed of the nature of the charges against them

so as to adequately prepare a defense and receive a fair trial.

Moreover, [a] bill of particulars, unlike discovery, is not

intended to provide the defendant with the fruits of the

governments investigation, United States v. Smith, 776 F.2d

1104, 1111 (3d Cir. 1985). Therefore, the defendants thinly

veiled demand for impermissible discovery through the issuance of

a bill of particulars should be denied.

Defendant Kjonaas relies heavily upon United States v. Bin

Laden, 92 F.Supp. 2d 225 (S.D.N.Y. 2000), for his argument that a

bill of particulars should issue. However, a reading of the Bin


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Laden decision reveals that it is factually dissimilar to the

instant case. Moreover, the law set forth by the district court,

when applied to the facts of the instant case counsels against

the issuance of a bill of particulars.

In Bin Laden, fifteen defendants were charged with 267

discrete criminal offenses. Each of the defendants was charged

with participating in at least five distinct criminal

conspiracies and two defendants were charged with being involved

in six separate conspiracies. The six conspiracies involved four

criminal objectives. Id. at 228. The criminal conspiracies were

alleged to have been committed over a ten year period and overt

acts were alleged to have occurred in Afghanistan, Pakistan, the

Sudan, Somalia, Kenya, Tanzania, Malaysia, the Philippines,

Yemen, the United Kingdom, Canada and the United States. Id. at

234. The Court found that the Indictment in the case, impose[d]

a a seemingly unprecedented and unique burden on the Defendants

and their counsel in trying to answer the charges that have been

made against them. Id. at 235. Indeed, one of the overt acts

in furtherance of one of the conspiracies read as follows:

At various times from at least as early as 1989 until

the date of the filing of this Indictment, the

defendants USAMA BIN LADEN, and MAMDOUH MAHMUD SALIM,

and others known and unknown to the grand jury, engagedin financial and business transactions on behalf of al

Qaeda including but not limited to: purchasing land for

training camps; purchasing warehouses for storage of

items including explosives; purchasing communications

equipment; transferring funds between corporate

accounts; and transporting currency and weapons to


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members of al Qaeda and its associated terrorist

organizations in various countries throughout the

world. To carry out some of these financial

transactions, the defendant MAMDOUH MAHMUD SALIM

traveled to various places on behalf of al Qaeda and

its affiliated groups, including, among other places to

Sudan, Afghanistan, Malaysia and the Philippines.

Id. at 237.

Thus, in the Bin Laden case, the conspiracies were alleged

against more defendants (15 individuals as opposed to seven),

were more vast (six as opposed to two), covered a much longer

time frame (ten years compared to three), and spanned the world.

While the overt acts alleged in the Bin Laden case, illustrated

above, were temporally broad, encompassing many ill-defined acts

committed around the world, the overt acts alleged in the instant

Superseding Indictment are limited to a specific time and a

single act in one place. Thus, the instant case, unlike Bin

Laden, does not present the Court or defense counsel with a

seemingly unprecedented and unique burden. Id. At 235.

The Court in Bin Laden set out certain parameters in

deciding whether a bill of particulars should issue, noting that

[e]ven under the amended rule, a bill of particulars is not a

matter of right. Id. at 233, quoting 1 Charles Alan Wright,

Federal Practice and Procedure 129 at 648 (3d ed. 1999). The

court found that in exercising its discretion it must examine

the totality of the information available to the defendant

through the indictment, affirmations, and general pre-trial


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discovery and determine whether, in light of the charges that

the defendant is required to answer, the filing of a bill of

particulars is warranted. Bin Laden, 92 F.Supp.2d at 233. The

Court noted that a bill of particulars should be required only

where the charges of the indictment are so general that they do

not advise the defendant of the specific acts of which he is

accused. Id., quoting United States v. Feola, 651 F.Supp.

1068,1132 (S.D.N.Y. 1987), affd 875 F.2d 877 (2d Cir. 1989).

Moreover, the court found that the acquisition of evidentiary

detail is not the function of a bill of particulars, [United

States v. Feola, 651 F.Supp. 1068,1132 (S.D.N.Y. 1987), affd 875

F.2d 877 (2d Cir. 1989)] and that it is not the bills function

to allow defendants a preview the evidence or the theory of the

governments case. Bin Laden, 92 F.Supp.2d at 233, quoting

United States v. Taylor, 707 F. Supp. 696, 699 (S.D.N.Y. 1989).

Finally, the court wrote that in deciding whether a bill

of particulars is needed, the court must determine whether the

information sought has been provided elsewhere, such as in other

items provided by discovery, responses made to requests for

particulars, prior proceedings, and the indictment itself. Bin

Laden, 92 F.Supp.2d at 233-34, quoting United States v.

Strawberry, 892 F.Supp. 519, 526 (S.D.N.Y. 1995).

Given the standards discussed in the Bin Laden decision, the

defendants in this case are not entitled to a bill of


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18

Contrast, the overt act set forth at page 237 of the BinLaden opinion, 92 F.Supp. 2d at 237, where the Court required the

Government to provide particulars, with the overt act set forth

in the first full paragraph of page 238 of the opinion where the

Government was not required to provide further information. The

overt acts in the instant Superseding Indictment more closely

track the latter.

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particulars. First, given the totality of information provided

to the defendants, they can easily discern the thrust of the

Governments case and prepare a defense. Indeed, the allegations

in the Superseding Indictment are narrowly drawn and specific as

to time and place. The overt acts deal largely with postings on

SHAC website involving the targeting of individuals or companies,

followed by acts of violence directed at those targets, followed

by a SHAC website posting touting the violence and spurring

others on to additional acts of violence as directed by the

website. This is much unlike the broad and unspecific acts set

forth in the Bid Laden Indictment18.

Further, the discovery in this matter has also

particularized the Governments case. The tape recorded

conversations between various co-defendants, touting their

victories when companies ceased doing business with HLS under the

threat of further actions and discussing other of their targets

particularizes the conspiratorial allegations. Moreover, tape

recordings and videotapes already provided show certain

defendants giving speeches wherein they gloat about the violence

that has occurred at their direction, tout how well the campaign


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19

These requests are embodied in request numbers 21 and 22 of

Exhibit O to the affidavit of Isabel McGinty, Esq. and five

separate requests (unnumbered) on page 8 of the letter of MichaelArmstrong, Esq., dated November 8, 2004.

20 These requests are embodied in request numbers 12 and 13 of

Exhibit O to the affidavit of Isabel McGinty, Esq. and two

separate requests (unnumbered) on page 7 of the letter of Michael

Armstrong, Esq., dated November 8, 2004.

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has worked in driving businesses from HLS, and predicts the

demise of HLS so long as the pressure is kept on the company and

the various targets. Thus, what defendants truly seek by the

bill or particulars is that to which they are not entitled, the

acquisition of evidentiary detail and a preview of the evidence.

See Bin Laden, 92 F.Supp.2d at 225.

That the defendants are merely seeking to have the

Government preview the case for them is most particularly

exhibited in the requests for various information regarding the

attack on TPs home19 and threats at RHs home20. In both those

instances, the defendants Kjonaas and Gazzola have sought

information about the descriptions of people who were at the

homes of the respective victims. In both cases, the Government

has already provided videotapes of those events in discovery

which clearly provide the answers defendants have sought by way

of a bill of particulars. Thus, not only do the defendants seek

discovery, they seek to have the Government explain how the

discovery operates and what particular parts of the discovery


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21

This practice of seeking large amounts of discovery and then

complaining that it cannot understand the material has most

recently manifested itself in defendant Kjonaas request that the

Government provide him with copies of all the videotapes seized

during a search. See Motion of Kjonaas filed on or about

November 8, 2004. The Government has already copied and provided

to defendants some 72 videotapes which it believes are relevant

to this case. In addition, the Government has invited all

defense counsel to view all the other tapes in its possession.

Not a single defense counsel has sought to view the tapes, but

rather defendant Kjonaas has sought to be provided copies of allthe tapes copies which the discovery rules do not require him

to be provided with. Given that defendant Kjonaas has requested

in his bill of particulars information already provided by way of

videotape, defendants request for extraneous material will only

place a further burden on the Government and generate a useless

expense.

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pertain to specific allegations21. The Government is not

required to preview its case in discovery. See Bin Laden, 92

F.Supp.2d at 233. It is only required to provide the defendants

with the information necessary to mount a defense if that is

their choice. The adversary system requires both sides of an

issue to perform certain tasks. The defendants in this case wish

the Government to provide the defendant with the fruits of its

investigation. Parlavecchio, 948. F2d. Supp 382, 393. In this

the defendants go too far.

Finally, defendants request for information as to when they

joined the indictment and other particulars regarding when the

conspiracy was formed seeks information which the Government is

not required to provide. Indeed, in the Bin Laden decision,

relied upon by the defendants, the Court held that requests,

such as those made by the Defendants here, for particulars as to


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when, where, how and with whom each individual defendant joined

an alleged conspiracy have almost uniformly been denied. Bin

Laden, 92 F.Supp.2d at 242, quoting United States v. Kahner, 203

F.Supp. 78, 84 (S.D.N.Y.1962). Accordingly, defendants motion

for a bill of particulars should be denied.


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VI. THIS COURT SHOULD REJECT DEFENDANTS REQUEST FOR DISCLOSURE

OF GRAND JURY MATERIALS BASED UPON MERE SPECULATION AND BARE

ASSERTIONS.

Defendant Kjonaas has moved for the disclosure of grand jury

materials based upon the bare assertion that access to the grand

jury transcript [is needed] in order to proceed with his

challenge to the indictment. Kjonaas Mem. at 44. In doing so,

defendant Kjonaas has failed to set forth the appropriate

standard for the disclosure of grand jury materials, he has

failed to satisfy that standard, and he has failed to acknowledge

let alone distinguish unfavorable, binding precedent in the

Supreme Court and this Circuit. In particular, defendant

Kjonaas has not shown with particularly a need for the grand jury

materials that outweighs the public interest in secrecy.

United States v. McDowell, 888 F.2d 285, 289 (3d Cir. 1988).

Accordingly, this Court must deny his motion.

Defendant Fullmer has also moved for the disclosure of grand

jury materials. He, too, has failed to show a particularized

need for disclosure, relying on the empty assertion that [o]ne

cannot think of a greater situation than that of Mr. Fuller when

his connection to this case is marginal. Fullmer suggests that

the disclosure of the materials might support his claim that his

connection to this case is marginal. As discussed further below,

however, a defendants great desire to engage in a fishing

expedition does not justify disregarding the secrecy of grand


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jury proceedings. See Thomas v. United States, 597 F.2d 656,

658 (8th Cir. 1979) (explaining that an expression of a

generalized hope by [defendant] that he might find some defect in

the grand jury proceedings is a "fishing expedition[]" that does

not provide sufficient grounds for disclosure [of grand jury

transcripts] prior to or at trial).

Similarly, defendant Harper has moved for the disclosure of

grand jury materials without satisfying the appropriate standard

for the disclosure of grand jury materials. Instead, defendant

Harper is relying on the general claim that he needs the

materials to prepare a defense. As noted above, the

generalized hope that the grand jury materials might reveal

grounds for a defense does not justify disregarding the secrecy

of grand jury proceedings.

The need for secrecy of grand jury proceedings is well-

established. See, e.g., Douglas Oil Co. v. Petrols Stops

Northwest, 441 U.S. 211, 218 (1979). As the Supreme Court

emphasized in Douglas Oil Co., the proper functioning of our

grand jury system depends upon the secrecy of grand jury

proceedings. Id. Although the need for secrecy diminishes

when the grand jury whose transcripts are sought has concluded

its operations, the interests in maintaining confidentiality

remain. Id. at 223. (recognizing that there are possible

detrimental effects upon the functioning of future grand


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juries, including the possibility that witnesses may be hesitant

to testify if they know their testimony will one day be

disclosed).

Given the indispensable secrecy of grand jury proceedings,

disclosure of grand jury materials is not warranted unless there

is a compelling necessity that is shown with particularity.

United States v. Proctor & Gamble Co., 356 U.S. 677, 681 (1958).

In United States v. McDowell, this Court explained that [t]o

support a motion for judicially ordered disclosure of grand jury

testimony, a party must show a particularized need for that

information which outweighs the public interest in secrecy. 888

F.2d 285, 289 (3d Cir. 1988). The burden of proof is on the

party seeking disclosure in this case, the defendants to show

a particularized need. See Pittsburgh Plate Glass Co. v. United

States, 360 U.S. 395, 400 (1959) (The burden [] is on the

defense to show that 'a particularized need' exists for the

[grand jury] minutes that outweighs the policy of secrecy.).

As stated above, none of the defendants have shown a

particularized need that justifies the disclosure of grand jury

materials. Defendant Kjonaas incorrectly suggests to this Court

that [d]isclosure of grand jury materials is particularly

warranted in a conspiracy case and relies on the Supreme Courts

opinion in Dennis v. United States, 384 U.S. 855 (1966). Kjonaas

further relies on Dennis in support of his claim that the grand


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jury materials should be turned over to the defense for the

attorneys for the individual defendants to determine how the

materials should be used. As the Supreme Court has subsequently

explained, however, the request for disclosure of grand jury

records in Dennis occurred in quite different circumstances.

Douglas Oil Co., 441 U.S. at 221.

In Dennis, the defendants (prior to a retrial) were seeking

the transcripts of the grand jury testimony of four witnesses who

already had testified in public concerning the same matters;

the defendants had also shown it to be likely that the [four]

witnesses testimony at [the first] trial was inconsistent with

their prior grand jury testimony. Douglas Oil Co., 441 U.S. at

221. The Supreme Court relied on prior case law recognizing a

particularized need for grand jury transcripts to impeach a

witness, to refresh his recollection, [or] to test his

credibility and found that the defendants were entitled to

examine the transcripts of these four witnessess grand jury

testimony. Dennis, 384 U.S. at 870 (quoting Proctor & Gamble

Co., 356 U.S. at 683). Therefore, contrary to Kjonaass

suggestion, Dennis does not stand for the general proposition

that in any conspiracy case, grand jury materials should be

disclosed to a defendant without showing a particularized need


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22 Furthermore, in accordance with the Jencks Act and this

Courts discovery order, the defendants will already receive any

transcripts of the grand jury testimony of any trial witness

before that witness testifies at trial.

- 50 -

for the information.22

Similarly, defendant Kjonaass reliance on a form order from

the District of Idaho is not a substitute for the particularized

showing mandated by Supreme Court and Third Circuit precedence.

That the District of Idaho has a form order available for

litigants to use does not show that [s]uch disclosure is

routinely given by courts in other districts. Kjonaas Mem. at

46 (emphasis added). Such a routine would conflict with the

Third Circuits position that grand jury proceedings generally

must remain secret except where there is a compelling necessity.

McDowell, 888 F.2d at 289.

Moreover, the defendants contention that disclosure of the

grand jury materials might disclose the basis for a motion to

dismiss the indictment or some other defense is not a compelling

necessity. See, e.g., Kjonaas Mem. at 45 (the material is

needed for the proper analysis of whether this prosecution is

barred by the First Amendment . . .); Fullmer Mem. at 14 (a

review of the grand jury must be looked at to determine whether

or not appropriate correct information was presented . . .)

(emphasis added). As the Third Court has made clear, mere

speculation that gross or prejudicial irregularities in the


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grand jury may have occurred will not suffice to support that

required showing. United States v. Budzanoski, 462 F.2d 443,

454 (3d Cir. 1972); accord United States v. Harbin, 585 F.2d 904,

907 (8th Cir. 1978) (finding that District Court did not abuse

its discretion in denying motion for disclosure based on

defendant's general plea that an inspection of the minutes might

yield a ground upon which to move to dismiss the indictment);

seealso United States v. Bennett, 702 F.2d 833, 836 (9th Cir.

1983) ([D]efendant's assertion that he had no way of knowing

whether prosecutorial misconduct occurred does not constitute a

particularized need . . . .).

Defendants have not articulated how or why particular grand

jury information is necessary for their motions or defenses. To

the contrary, defendant Kjonaas has taken every opportunity to

brief and argue to this Court why this prosecution is barred by

the First Amendment. See generally Kjonaas Mem. at 9-34

(providing a 25-page preview of motions including First

Amendment defenses that Kjonaas intends on raising); Kjonaas

Brief In Opposition to Motion to Revoke Bail at 19-21 (previewing

First Amendment claim). Clearly, the non-disclosure of the grand

jury materials has not proven a barrier. Indeed, none of the

defendants have articulated how the issue of whether or not this

prosecution is barred by the First Amendment is dependent upon

what the grand jury heard.


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Likewise, whether or not defendant Fullmer is a member of

the charged conspiracy is an issue of fact that a jury will

ultimately decide based upon the evidence the Government will

present at trial not the evidence presented to a grand jury.

Defendant Fullmers claim to the contrary is not a compelling or

particularized reason to justify disregarding the secrecy of

grand jury proceedings.

Finally, this Court should reject defendant Kjonaass

request for the text of any charge, as well as the drafts of the

indictment, prepared by the United States Attorneys Office (or

any of its agents) for the grand jurys review and use. Kjonaas

Mem. at 47. Again, Kjonaas does not articulate any specific need

for this information, but rather, simply states that it is needed

for future motions to dismiss on the grounds of selective

prosecution and to strike extraneous material from the

Indictment. Id. A request for the text of any charge read to

the grand jury is simply a different way of requesting the grand

jury transcripts for that day and, thus, should be rejected for

the reasons set forth above. In addition, although a draft of an

indictment falls outside Fed. R. Crim. P. 6(e) if it does not

reveal grand jury information, it is still protected against

disclosure under the work-product doctrine. See Manna v. United

States Department of Justice, 815 F. Supp. 798, 815 (D.N.J. 1993)

(concluding that drafts of court-filings prepared by Department


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of Justice attorneys and the worksheets prepared for the

indictment and prosecution were protected by the work-product

privilege from disclosure under FOIA).

In sum, the defendants have made nothing more t

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