Caldwell, Rhodes, Et Al - Opposition To DOJ Motion For Protective Order - September 2022

Case 1:22-cr-00015-APM Document 343 Filed 09/26/22 Page 1 of 7
UNITED STATES DISTRICT

FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA

)
)
v. ) Case No. 22-cr-00015-APM
STEWART RHODES, ET. AL. )

)
)
Defendant )
)
DEFENDANTS’ RESPONSE/OPPOSITION TO GOVERNMENT’S MOTION FOR

PROTECTIVE ORDER REGARDING TRIAL TESTIMONY OF CONFIDENTIAL
HUMAN SOURCES
Defendants Thomas Caldwell, Stewart Rhodes, Kelly Meggs, Jessica Watkins and
Kenneth Harrelson respectfully submit this Response/Opposition to the Government’s
Motion for Protective Order Regarding Trial Testimony of Confidential Human Sources.
The Government seeks to limit the inquiry into the identities, actions, and communications of
the CHSes employed by the FBI during its investigation of the Oath Keepers organization,
including Defendants herein, out of concern for the safety of those individuals and to avoid
disclosing details of the workings of the FBI Confidential Human Source program.
The Defendants are before this Court with their liberty interests at stake. The
Government has paid individuals to gather information and evidence about the Oath Keepers
and the Defendants. The Government has made use of some of that information and
evidence in building its case for trial. Although the Government has disclosed to the defense
– only after being ordered to do so by this Court – the activities of five CHSes, it has
communicated to defense counsel that only one will be called to testify as a witness at trial.
With its Motion for Protective Order, the Government has now lifted the veil on its
use of CHSes in this case, a fact that has been concealed from public knowledge by another
Protective Order the Government obtained as a precondition to producing Brady/Giglio
material to the Defendants. The Government had good cause for doing so – but not only for
the reasons set forth in the application for that Order. What the Government knew – but only
recently disclosed to the Defendants – was that none of the CHSes provided evidence of guilt
on the part of the Oath Keepers as an organization, or the individual Defendants in this case.
This fact is confirmed by the Government’s acknowledgment that only one CHS will be
called to testify during its case-in-chief.
The indictment in this case makes repeated reference to the “Rhodes Plan” – the plan
by which the Oath Keeper defendants are claimed to have organized themselves into a
conspiracy to use force to prevent the lawful transfer of presidential power in January 2021
or corruptly interfere with the electoral vote certification by Congress or both. The
heretofore concealed CHSes, notably, were in regular communication with their FBI
handlers before, during, and after January 6, 2021, but none of them reported the existence of
any such “Rhodes Plan,” and they have all denied having known any information about a
“Rhodes Plan” when questioned by their FBI handlers after January 6, 2021.
The potential testimony of these CHSes, along with the corroborating testimony of
their FBI handlers, will establish either 1) that the “Rhodes Plan” was so secret that even
members of Oath Keeper leadership who interacted regularly with Defendant Rhodes and
others alleged to have been involved were kept in the dark both before and after January 6, or
2) that there never was any such “Rhodes Plan.” The Defendants are entitled to examine the
totality of the Government’s investigation and prosecution for the purposes of undermining
the jury’s confidence in the work done and the conclusions reached by the agents and
prosecutors over the course of the past 20 months.
The Government’s case relies on suppositions and conclusions in many critical
respects, while at the same time ignoring or discounting documented exculpatory evidence
undermining many if those suppositions and conclusions. At various points in time,
however, the Government received information from those five CHSes, none of whom
communicated knowledge of the “Rhodes’ Plan” as described in the instant indictment. The
Defendants are entitled to have those facts made known to the jury from the CHSes
themselves as exculpatory evidence.
Further, one or more FBI handlers were explicitly told by CHSes that there was never
an Oath Keepers or Rhodes “plan” to attack the Capitol for any purpose – whether to
interfere with the lawful transfer of presidential power or to corruptly obstruct the electoral
vote certification. The FBI chose to ignore that exculpatory information and along with DOJ
has “reverse-engineered” the existence of such a “plan” through selective use of “evidence”
it has cherry-picked out of context, while ignoring all evidence to the contrary.
In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court pointed out that when
the government withheld statements from a confidential source that were potentially
exculpable, the defendant lost the opportunity before the jury to make law enforcement’s
investigation of him look unreliable. As the Court explained, “the defense could have
examined the police to good effect on their knowledge of Beanie's statements and . . .
attacked the reliability of the investigation in failing even to consider Beanie's possible
guilt.” Id. at 446. The Court proceeded to re-construct the detective’s testimony in the case:
By demonstrating the detectives' knowledge of Beanie's affirmatively self-

incriminating statements, the defense could have laid the foundation for a vigorous
argument that the police had been guilty of negligence.... Since the police admittedly
never treated Beanie as a suspect, the defense could thus have used his statements to
throw the reliability of the investigation into doubt and to sully the credibility of
Detective Dillman, who testified that Beanie was never a suspect.
Id. at 447. The Supreme Court reversed the defendant’s conviction in Kyles because the
suppressed evidence would have opened avenues of embarrassing cross-examination as to
the inadequacy of the police investigation which “would simply have underscored the
unreliability of the investigation and complemented the defense's attack on the failure to treat
Beanie as a suspect and his statements with a presumption of fallibility.” Id. at 450–51. The
Kyles Court ultimately concluded that, with the excluded material, the jury may have judged
the lead police detective to be “either less than wholly candid or less than fully informed”
and the investigation to be limited in scope, negligent in method, and “insufficiently
probing” of the cooperators' credibility.” Id. at 453–54.
Similarly, in United States v. Bagcho, 151 F. Supp.3d 60, 69 (D.D.C. 2015), this
Court cited Kyles (and two Circuit Court cases the Supreme Court cited favorably in Kyles)
as confirming the right of a defendant to attack the competency of the investigation in a
criminal case:
Impeachment evidence can be damaging when it allows defense counsel to attack the
reliability of an investigation. See Bowen v. Maynard , 799 F.2d 593, 613 (10th
Cir.1986) (“A common trial tactic of defense lawyers is to discredit the caliber of the
investigation or the decision to charge the defendant, and we may consider such use
in assessing a possible Brady violation.”); Lindsey v. King , 769 F.2d 1034, 1042 (5th
Cir.1985) (awarding a new trial after Brady evidence “carried within it the potential...
for the... discrediting... of the police methods employed in assembling the case”).
The Defendants do not intend to elicit any testimony for the sole purpose of
gratuitously exposing other investigations involving a testifying CHS. But relevant
information – such as the reliability and accuracy of the CHS’s information elicited from the
testimony of an FBI handler – might be found in cross-examination that explores other work
done by the CHS with the FBI or other law enforcement agency. The FBI chooses to use
Confidential Human Sources in criminal investigations knowing that those sources might be
cross-examined by defense counsel in a criminal case at some point in the future. That is a
risk the Government and the CHS knowingly and voluntarily assume as part of the
relationship they enter into.
The Defendants, moreover, do not intend to elicit testimony from a CHS for the sole
purpose of exposing the CHS to possible retribution or otherwise place his or her safety at
risk. However, given the physical proximity of certain CHSes to the Defendants,
cooperators, and unindicted co-conspirators in this case, it is unrealistic to seek to prevent the
geographic location of a testifying CHS from becoming known as a result of testifying in this
case.
Finally, the Government offers no legal support for the third restriction it seeks –
preventing examination of CHSes or FBI handlers with respect to the “FBI’s CHS program
and the training and methods used by the FBI as part of their undercover operations.” Such a
restriction contravenes the Supreme Court’s holding in Kyles. The FBI’s management of its
CHS program is bound up in the manner by which CHSes were “worked” in this
investigation. A blanket prohibition such as the one sought here by the Government’s third
requested limitation is likely to impede the Defendants’ opportunity before the jury to make
the FBI’s investigation of them look inept and unreliable.

WHEREFORE, the Defendants respectfully request that the Court deny the
Government’s request for a protective order regarding trial testimony of its Confidential
Human Sources.
Respectfully submitted,
/s/David W. Fischer, Esq.

David W. Fischer, Esq.
Federal Bar No. 023787
Law Offices of Fischer & Putzi, P.A.
Empire Towers, Suite 300
7310 Ritchie Highway
Glen Burnie, MD 21061
(410) 787-0826
Attorney for Defendant Thomas Caldwell
CERTFICATE OF SERVICE
I HEREBY CERTIFY that on this 26th day of September, 2022, a copy of the
foregoing Reply In Support of Motion to Dismiss Counts 1, 2, 3, & 4 was electronically filed
with the Clerk of the United States District Court using CM/ECF, with a notice of said filing
to the following:
Counsel for the Government: Office of the United States Attorney/DOJ
Kathryn Rakoczy, Esq.
Jeffrey Nestler, Esq.
Troy Edwards, Esq.
Louis Manzo, Esq.
Alexandra Hughes, Esq.
Justin Sher, Esq.
555 4th Street, NW
Washington, DC 20001
/s/___________________
David W. Fischer, Esq.

Caldwell, Rhodes, Et Al - Opposition To DOJ Motion For Protective Order - September 2022

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Case 1:22-cr-00015-APM Document 343 Filed 09/26/22 Page 1 of 7

UNITED STATES DISTRICT

UNITED STATES OF AMERICA

STEWART RHODES, ET. AL. )

DEFENDANTS’ RESPONSE/OPPOSITION TO GOVERNMENT’S MOTION FOR

Kenneth Harrelson respectfully submit this Response/Opposition to the Government’s

Protective Order the Government obtained as a precondition to producing Brady/Giglio

called to testify during its case-in-chief.

prosecutors over the course of the past 20 months.

The Government’s case relies on suppositions and conclusions in many critical

undermining many if those suppositions and conclusions. At various points in time,

themselves as exculpatory evidence.

By demonstrating the detectives' knowledge of Beanie's affirmatively self-

suppressed evidence would have opened avenues of embarrassing cross-examination as to

and the investigation to be limited in scope, negligent in method, and “insufficiently

probing” of the cooperators' credibility.” Id. at 453–54.

as confirming the right of a defendant to attack the competency of the investigation in a

gratuitously exposing other investigations involving a testifying CHS. But relevant

relationship they enter into.

the FBI’s investigation of them look inept and unreliable.

/s/David W. Fischer, Esq.

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