Feds Must Produce NSA Dragnet|Records for Criminal Defense

FORT LAUDERDALE (CN) - Citing the NSA telephone dragnet, a federal judge ordered the United States government to deliver telephone records demanded by a man on trial for an armored car robbery in which a Brink's employee was killed.

Terrance Brown is charged with the attempted robbery of armored cars, which culminated in the murder of a Brink's armored truck messenger on Oct. 1, 2010. Though Brown did not kill the Brink's employee, the government claims he was the mastermind behind the robberies.

The actual triggerman, Nathaniel Moss, pleaded guilty to several charges and is serving a life sentence. Brown and five others have pleaded not guilty, according to The Associated Press.

In light of the recently revealed National Security Agency surveillance program, Brown's attorneys challenged the government's claim that it has no access to records of Brown's phone calls.

Prosecutors claimed they were missing records of calls to and from two of Brown's telephones before Sept. 1, 2010. They claimed Brown's service provider, MetroPCS, no longer had the records. Prosecution relied on Moss's and other co-conspirators' cell phone records to try to prove Brown's involvement in the armed robberies.

But Marshall Dore Louis, the Miami attorney representing Brown, filed a motion to compel production of records, which he claims may show Brown was not involved in a July 2010 robbery attempt.

The NSA surveillance program that was exposed this month proves that the government can get data on Brown's calls, the attorney says in his motion to compel.

On June 5, the British newspaper The Guardian published classified material leaked by Edward Snowden, a former employee at an NSA contractor. The article revealed a classified NSA surveillance program created in 2006, which has been reauthorized by Congress several times. Under the program, the government, through NSA, collects cell phone carrier data to identify potential terrorism suspects. Although the leaked court order mentions only Verizon phone records, President Obama and members of Congress have said the phone data surveillance program covers many other service providers, according to court filings.

"The government must be ordered to turn over the records for the two telephones that it attributes to Mr. Brown for the dates which are relevant to this case - the month of July of 2010," attorney Louis wrote in the motion to compel.

The attorney claims the records are in the government's possession, and that it is required to turn them over.

"The records are material and favorable to Mr. Brown's defense; they are evidentiary and relevant to the issues in trial; they are not otherwise procurable by exercise of due diligence; the application is made in good faith and is not intended as a general fishing expedition; and, the records are necessary for Mr. Brown to meet the government's evidence in this matter," Louis wrote in the motion.

He asked the court to subpoena the NSA if it determines that the records are not within the government's possession or control.

U.S. District Judge Robin Rosenbaum ordered the government to respond to Brown's motion, and said the court would determine whether Brown's surveillance was lawfully authorized and conducted.

The U.S. attorney general may file an affidavit if he feels that disclosure or a hearing would harm national security interests, according to Judge Rosenbaum's June 10 order. The judge gave the government two days to produce the records.

"The Court regrets the short deadline for compliance but notes that the evidence that defendant Brown seeks pertains to a trial that has been underway since May 31, 2013, and any order requiring the production of any materials sought would become meaningless if such items were not produced in sufficient time for the defense to use them in its case," the judge wrote.

It was unclear at press time this morning whether the government has produced the records.

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