1 

 UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

UNITED STATES OF AMERICA ) 

) 

) 

v. ) No. 12 CR 22 

) 

) Judge Virginia M. Kendall 

STEPHEN LINDER ) 

 ) 

MEMORANDUM OPINION AND ORDER

On January 12, 2012, a federal Grand Jury indicted Defendant Stephen Linder, a Deputy 

United States Marshal for the Northern District of Illinois, in a four-count Indictment charging that 

he violated the civil rights of two individuals by using excessive force against them on two 

separate occasions and then attempted to conceal or prevent information regarding those incidents 

to be presented in the course of the investigations that followed. (Doc. 1, Indict. at 1-2.)1 

Specifically, the Indictment charges that Linder struck and choked Individual S.S. on July 8, 2010 

(Count I) and head-butted Individual E.U. on May 18, 2008 (Count III), both acts in violation of 18 

U.S.C. ' 242. (Id.) The Indictment also charges that Linder then attempted to corruptly 

persuade two other individuals, known respectively as Individual H.S. and Individual S.M., to 

withhold evidence concerning the conduct charged in Counts I and III from federal authorities 

with the intent to hinder, delay, and prevent the communication of information relating to the 

possible commission of a federal offense in violation of 18 U.S.C. ' 1512(b)(3) (Counts II and IV). 

 

1

 Citations to the pleadings, orders, minute entries, motions, transcripts, notices, and other materials filed in the 

Docket for this case are designated, A(Doc. __.).@ Citations to the evidentiary hearing transcript, sequentially 

numbered from pages 1 to 847, are designated, A(Tr. at __.).@ Citations to the exhibits received into evidence by the 

Court are, with respect to Defendant Linder=s exhibits, designated, A(Doc. 48-1, Def.=s Exs. __.),@ and with respect to 

the Government=s exhibits, designated, A(Docs. 50-1-50-9, Gov.=s Exs. __.).@
2 

(Id.) Linder moved to dismiss the Indictment against him, alleging that the prosecution team 

violated his Sixth Amendment right to compulsory process of witnesses in his favor and his Fifth 

Amendment right to due process of law through its intentional interference with his right to 

conduct a defense investigation and interview prospective witnesses. (Doc. 26, Def.=s Mot. to 

Dismiss the Indict.) Because after an evidentiary hearing on the matter, this Court finds that the 

prosecution team substantially interfered with Defendant=s access to victims, exercised an overly 

aggressive approach to witnesses by threatening them with prosecution, and violated the 

Defendant=s constitutional rights, the Court dismisses the Indictment. 

PROCEDURAL HISTORY

On January 12, 2012, after presentation by Assistant United States Attorneys for the Civil 

Rights Division of the Department of Justice, a Grand Jury returned the four-count Indictment 

against Linder. (Doc. 1, Indict.) There is no explanation in the record as to why the United States 

Attorney for the Northern District of Illinois or Assistant United States Attorneys for the Northern 

District of Illinois did not participate in the investigation or presentation of the case before the 

grand jury. Although one might conjecture that the reason for the United States Attorney=s Office 

for the Northern District of Illinois not participating in the investigation might be due to their 

reluctance to prosecute a deputy marshal from their own district, this has not been the case in the 

past. United States v. Ambrose, 668 F.3d 943, 948 (7th Cir. 2012). 

On April 20, 2012, Linder filed five pretrial motions, requesting that the Court grant him 

assorted forms of relief and provide him with various remedies at law. (Doc. 22, Def.=s Mot. for 

the Early Ret=n of Tr. Subps.; Doc. 23, Def.=s Mot. for Disc=l. of Fav. Evid.; Doc. 24, Def.=s Mot. 

for a Bill of Partic=s; Doc. 25, Def.=s Mot. to Suppress; Doc. 26, Def.=s Mot. to Dismiss the Indict.) 
3 

On August 9, 2012, in a written Memorandum Opinion, the Court resolved two of Linder=s 

remaining motions. See United States v. Linder, No. 12 CR 22-1, 2012 WL 3264924, at *3, *15 

(N.D. Ill. Aug. 9, 2012); (Doc. 42, Mem. Op. at 6, 35-36). First, the Court granted Linder=s 

motion for a Bill of Particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, 

(Doc. 24, Def.=s Mot. for a Bill of Partic=s) (citing Fed. R. Crim. P. 7(f) (AThe court may direct the 

government to file a bill of particulars. The defendant may move for a bill of particulars before or 

within 14 days after arraignment or at a later time if the court permits. The government may 

amend a bill of particulars subject to such conditions as justice requires.@)). See Linder, 2012 WL 

3264924, at *3, *15; (Doc. 42, Mem. Op. at 6, 35-36). Second, the Court denied Linder=s motion 

to suppress evidence obtained by the Government allegedly pursuant to a warrantless search and 

seizure of his electronic property in violation of the Fourth Amendment to the United States 

Constitution, (Doc. 25, Def.=s Mot. to Suppress at 1.) See Linder, 2012 WL 3264924, at *3, *15; 

(Doc. 42, Mem. Op. at 6, 35-36). However, the Court was unable at that time to resolve Linder=s 

motion to dismiss the Government=s Indictment against him, (Doc. 26, Def.=s Mot. to Dismiss the 

Indict.). See Linder, 2012 WL 3264924, at *23; (Doc. 42, Mem. Op. at 55) (ABased on the 

partially disputed factual record in this case it cannot be determined at this time whether Linder=s 

Fifth Amendment right to due process of law or his Sixth Amendment right to compulsory process 

of witnesses have been violated.@). 

After reviewing the briefs, motions, and papers submitted by both parties, (Doc. 26, Def.=s 

Mot. to Dismiss the Indict.; Doc. 28, Gov.=s Resp. to Def.=s Mot. to Dismiss the Indict.; Doc. 33, 

Def.=s Reply in Supp. of Def.=s Mot. to Dismiss the Indict.), in addition to conducting a 

comprehensive independent assessment of the relevant governing caselaw, this Court entered an 
4 

Order on August 9, 2012, requiring that an evidentiary hearing be held on Linder=s Motion to 

Dismiss the Indictment because on the record then before the Court a determination was not 

possible of whether Linder=s constitutional rights had been violated or whether the Government 

had engaged in prejudicial misconduct against him. See Linder, 2012 WL 3264924, at *23; (Doc. 

42, Order at 55-56) (AAn evidentiary hearing is required in this case to resolve the issue of whether 

the indictment against Linder should be dismissed. On the record currently before the Court it is 

not possible to ascertain many of the facts that will be dispositive of the instant [m]otion.@). 

Specifically, the Court identified two principal areas in which inquiry at an evidentiary 

hearing was deemed necessary to making a determination of whether the motion now under 

consideration should be granted and the Government=s Indictment against Linder dismissed. See 

Linder, 2012 WL 3264924, at *23; (Doc. 42, Mem. Op. at 56-57). The first area related to 

whether the United States Marshal for the Northern District of Illinois, Darryl McPherson, as well 

as those acting under his command, constituted part of the prosecution team and whether their acts 

in the investigation and prosecution of Linder could be imputed to the prosecution team. See 

Linder, 2012 WL 3264924, at *23; (Doc. 42, Mem. Op. at 56-57) (AFirst, the Court must determine 

whether McPherson was acting as part of the >government= when he e-mailed the guidelines. The 

degree of participation of McPherson and the people under his command with the investigation is a 

necessary fact that must be adduced. It must be determined whether the guidelines can be 

imputed onto the prosecution.@). 

The second area of inquiry that the Court deemed critical to resolving the instant motion 

related to whether the Government=s actions actually deterred witnesses from meeting with Linder 

and the defense team in violation of his Sixth Amendment right to compulsory process of 
5 

witnesses in his defense, or otherwise violated Linder=s constitutional rightsCand if soCwhether 

Linder suffered prejudice as a consequence. See Linder, 2012 WL 3264924, at *15, *23; (Doc. 

42, Mem. Op. at 36, 56-57) (AThis Court is empowered, and indeed it possesses a duty, to dismiss 

an indictment when it violates the Constitution or laws of the United States .... [I]t is necessary to 

know whether any USMS employees actually felt threatened or intimidated by the e-mails and for 

that reason chose not to speak with Linder=s defense counsel. . . . Most importantly, the Court has 

to determine whether the government interfered with a potential defense witness=s free choice to 

testify[.]@). 

Pursuant to its Order of August 9, 2012, (Doc. 42, Order at 55-56), the Court conducted a 

four-day evidentiary hearing on Linder=s motion to dismiss the Indictment, commencing on 

September 18, 2012 and concluding on September 21, 2012. (Docs. 54-57, Min. Entries; Docs. 

61-68, Tr. of Hr=g.) The Government called three witnesses to testify at the hearing: (1) Stanley 

Griscavage, Jr., former Chief, United States Marshals Service (AMarshals Service@), Office of 

Inspection, Internal Affairs; (2) Kimberly Thomas, Assistant Special Agent, United States 

Department of Justice, Office of the Inspector General (AOIG@); and (3) Darryl McPherson, United 

States Marshal, Northern District of Illinois. (Docs. 54-55, Min. Entries; Docs. 61-64, Tr. of 

Hr=g; Tr. at 4-306.) 

Linder called eleven witnesses to testify for him: (1) John O=Malley, Chief Deputy, 

Marshals Service, Northern District of Illinois; (2) James Smith, Deputy United States Inspector, 

Judicial Security Division, Marshals Service, Northern District of Illinois; (3) Ed Farrell, 

Supervisory Inspector, Marshals Service, Northern District of Illinois and Supervisor, Great Lakes 

Regional Fugitive Task Force (AGLRFTF@); (4) Theodore Stajura, Lieutenant, Cook County 
6 

Sheriff=s Police Department; (5) John Hadjioannou, Detective, Berwyn Police Department; (6) 

Richard Walenda, Inspector, Marshals Service, Northern District of Illinois; (7) Paul Zitsch, 

Deputy United States Marshal (ADUSM@), Marshals Service, Northern District of Illinois; (8) Troy 

Brejc, DUSM, Marshals Service, Northern District of Illinois; (9) Lorne Stenson, DUSM, 

Marshals Service, Northern District of Illinois; (10) George Peters, DUSM, Marshals Service, 

Northern District of Illinois; and (11) Kevin Shirley, Senior Special Agent, United States 

Department of Justice, OIG. (Docs. 56-57, Min. Entries; Docs. 64-68, Tr. of Hr=g; Tr. at 

306-840.) All of the witnesses Linder called to testify at the evidentiary hearing were compelled 

to attend by force of subpoenas served on them by the defense. (See Tr. at 10, 308, 382, 394, 465, 

553, 567, 693.) 

In addition to the testimony that was adduced at the hearing, the parties submitted 

pre-hearing briefs and memoranda that contained exhibits and affidavits. (Doc. 48, Def.=s 

Pre-Hr=g Br.; Doc. 48-1, Def.=s Exs.; Doc. 50, Gov.=s Pre-Hr=g Mem.; Docs. 50-1-50-9, Gov.=s 

Exs.) All of these exhibits and affidavits were received into evidence by the Court and placed into 

the record. (See Tr. at 306.) 

At the conclusion of the testimony and presentation of the evidence, the Court entered an 

Order requiring the parties to submit post-hearing position papers, (Doc. 85, Min. Entry; Tr. at 

841; Doc. 57, Min. Entry; Doc. 68, Tr. of Hr=g.), which both parties did, (Doc. 86, Def.=s Post-Hr=g 

Br.; Doc. 87, Gov.=s Post-Hr=g Br.). The Court conveyed specific instructions to the parties, 

which came in the form of an Order, clearly stating exactly what the Court wanted the parties=

post-hearing position papers to contain. (Doc. 85, Min. Entry; Tr. at 841; Doc. 57, Min. Entry; 

Doc. 68, Tr. of Hr=g.) In addition, the Court ordered the parties to submit their post-hearing 
7 

position papers in a format consisting of proposed findings of fact and conclusions of law. (Doc. 

85, Min. Entry; Tr. at 841; Doc. 57, Min. Entry; Doc. 68, Tr. of Hr=g.) The Government failed to 

follow the Court=s Order, (Doc. 85, Min. Entry; Tr. at 841; Doc. 57, Min. Entry; Doc. 68, Tr. of 

Hr=g.; Doc. 87, Gov.=s Post-Hr=g Br.), and instead submitted a conclusory and argumentative brief 

without findings of fact from the record. The Government=s failure to comply with the clear and 

explicit Order only further exposes some of the weaknesses in the Government=s position with 

respect to Linder=s Motion to Dismiss the Indictment. (Tr. at 841; Doc. 26, Def.=s Mot. to Dismiss 

the Indict.; Doc. 87, Gov.=s Post-Hr=g Br.) 

The prosecution of this case against Linder, like all federal prosecutions for the alleged 

violations of the laws of the United States, is being conducted under the authority of the United 

States Attorney.2

 The United States Attorneys (and Assistant United States Attorneys) are the 

officers within the Executive Department of Article II of the Constitution charged with the 

responsibility and discretionary power to decide whether prosecutions should be commenced or 

maintained for violations of the criminal laws of the United States, and the federal courts are 

generally advised not to interfere with the United States Attorney=s discretion in the exercise of 

their control over federal criminal prosecutions. See United States v. Batchelder, 442 U.S. 114, 

124 (1979) (AWhether to prosecute and what charge to file or bring before a grand jury are 

decisions that generally rest in the prosecutor=s discretion.@); Bordenkircher v. Hayes, 434 U.S. 

357, 363 (1978) (AIn our system, so long as the prosecutor has probable cause to believe that the 

accused committed an offense defined by statute, the decision whether or not to prosecute, and 

what charge to file or bring before a grand jury, generally rests entirely in his discretion.@); United 

 

2

 Specifically, the case is being prosecuted by Assistant United States Attorney AeJean Cha and Assistant United 

States Attorney Mark Blumberg, who are AUSAs in the Department of Justice=s Civil Rights Division. 
8 

States v. Nixon, 418 U.S. 683, 693 (1974) (ASince the Executive Branch has exclusive authority 

and absolute discretion to decide whether to prosecute a case, it is contended that a President=s 

decision is final in determining what evidence is to be used in a given criminal case.@). 

Notwithstanding the proposition that the federal courts are counseled not to interfere with 

the United States Attorneys= discretion in their authority over federal criminal prosecutions, A[t]he 

judiciary has always borne the basic responsibility for protecting individuals against 

unconstitutional invasions of their rights by all branches of the Government.@ United States v. 

Falk, 479 F.2d 616, 624 (7th Cir. 1965); see also Zivotofsky ex rel. Clinton, CU.S.C, 132 S. Ct. 

1421, 1440 (March 26, 2012) (Breyer, J., dissenting) (ANor, importantly, does [the defendant] 

assert an interest in vindicating a basic right of the kind that the Constitution grants 

to individuals and that courts traditionally have protected from invasion by the other branches of 

Government.@); United States v. Butler, 297 U.S. 1, 62-63 (1936) (AThere should be no 

misunderstanding as to the function of this court in such a case. It is sometimes said that the court 

assumes a power to overrule or control the action of the people=s representatives. This is a 

misconception. The Constitution is the supreme law of the land ordained and established by the 

people.@); A. Hamilton, Federalist Paper No. 78, reprinted in Cooke (ed.), The Federalist, 521, 

524-25 (1961). 

In Berger v. United States, 295 U.S. 78, 88 (1935), the United States Supreme Court stated: 

The United States Attorney is the representative not of an ordinary party to a 

controversy, but of a sovereignty whose obligation to govern impartially is as 

compelling as its obligation to govern at all; and whose interest, therefore, in a 

criminal prosecution is not that it shall win a case, but that justice shall be done. 

As such, he is in a peculiar and very different sense the servant of the law, the 

twofold aim of which is that guilt shall not escape or innocence suffer. He may 

prosecute with earnestness and vigorCindeed, he should do so. But, while he may 

strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to 
9 

refrain from improper methods calculated to produce a wrongful conviction as it is 

to use every legitimate means to bring about a just one. 

Adherence to this standard by the United States Attorneys is necessary to the proper administration 

of justice. When prosecutors fail to fulfill their obligations under the law it is justice that suffers.3 

The D.C. Circuit has said of this Apeculiar@ nature of the United States Attorneys that A[a]n attorney 

for the United States, as any other attorney, however, appears in a dual role. He is at once an 

officer of the court and the agent and attorney for a client; in the first capacity he is responsible to 

 

3

 The regulations promulgated by the Office of Government Ethics contain AStandards of Ethical Conduct for 

Employees of the Executive Branch,@ which United States Attorneys are. The Abasic obligation of public service@ is 

as follows: 

Public service is a public trust. Each employee has a responsibility to the United States Government 

and its citizens to place loyalty to the Constitution, laws and ethical principles above private gain. 

To ensure that every citizen can have complete confidence in the integrity of the Federal 

Government, each employee shall respect and adhere to the principles of ethical conduct set forth in 

this section, as well as the implementing standards contained in this part and in supplemental agency 

regulations. 

The following general principles apply to every employee and may form the basis for the standards 

contained in this part. Where a situation is not covered by the standards set forth in this part, 

employees shall apply the principles set forth in this section in determining whether their conduct is 

proper. (1) Public service is a public trust, requiring employees to place loyalty to the Constitution, 

the laws and ethical principles above private gain. (2) Employees shall not hold financial interests 

that conflict with the conscientious performance of duty. (5) Employees shall put forth honest 

effort in the performance of their duties. (7) Employees shall not use public office for private gain. 

(8) Employees shall act impartially and not give preferential treatment to any private organization or 

individual. (11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate 

authorities. (13) Employees shall adhere to all laws and regulations that provide equal opportunity 

for all Americans regardless of race, color, religion, sex, national origin, age, or handicap. (14) 

Employees shall endeavor to avoid any actions creating the appearance that they are violating the 

law or the ethical standards set forth in this part. Whether particular circumstances create an 

appearance that the law or these standards have been violated shall be determined from the 

perspective of a reasonable person with knowledge of the relevant facts. 

5 C.F.R. ' 2635.101(a); (b)(1)-(14) (2013). 

The basic policy of the Department of Justice as to the standard of conduct of the United States Attorney=s Office 

personnel as set forth in the United States Attorney=s Manual is as follows: 

Employees shall . . . conduct themselves in a manner that creates and maintains respect for the 

Department of Justice and the U.S. Government. In all their activities, personal and official, they 

should always be mindful of the high standards of behavior expected of them. . . . 
10 

the Court for the manner of his conduct of a case, i.e., his demeanor, deportment and ethical 

conduct; but in his second capacity, as agent and attorney for the Executive, he is responsible to his 

principal and the courts have no power over the exercise of his discretion or his motives as they 

relate to the execution of his duty within the framework of his professional employment.@ 

Newman v. United States, 382 F.2d 479, 481 (D.C. Cir. 1967) (Per Chief Justice Burger, Circuit 

Justice). 

MOTION TO DISMISS 

Linder moves this Court to dismiss the Indictment with prejudice arguing that the 

prosecution team violated his Sixth Amendment right to compulsory process of witnesses in his 

favor and his Fifth Amendment right to due process of law through its Aintentional interference 

with the [D]efendant=s right to conduct a defense investigation and interview prospective 

witnesses.@ (Id. at 1.) In particular, Linder claims that Marshal McPherson, while acting as an 

arm of the prosecution, Adirected employees under his command to not communicate with Linder 

and his legal counsel, thereby thwarting Linder=s due process and fair trial constitutional 

protections.@ (Id. at 5.) Linder claims that two e-mails which were issued on behalf of the 

United States Marshal must be imputed to the prosecutors because the Marshal and his employees 

have served as an arm of the prosecution. (Id. at 8.) The e-mails threatened deputies to not speak 

with the defense and have contact with Linder, or they would suffer employment consequences or 

disciplinary proceedings. 

 Linder argues that aside from the e-mails that prevented his access to witnesses, prospective 

defense witnesses have also been threatened and intimidated by the Office of Inspector General 

investigator and the prosecutors to cooperate with the prosecution or they would potentially lose 

their jobs or be prosecuted as coconspirators of the defendant. Witnesses, he alleges, are not only 
11 

afraid of losing their jobs, they are afraid of being charged with crimes and being prosecuted. 

Recognizing this, Linder claims the witnesses will not tell the truth even if the Marshal were to 

withdraw the access restrictions and the threats ceased. In fact, the Marshal has already modified 

his directions to the deputies; yet, according to Linder, the witnesses are scared and the defense has 

lost its opportunity to interview these witnesses without restriction or fear of retaliation. (See Id.) 

Linder concludes by declaring that the Avery fundamental element of due process of law is broken 

here and it is beyond repair.@ (Id.) 

FINDINGS OF FACT4

On July 8, 2010, Stephen Linder, acting in his capacity as a Deputy United States Marshal 

for the Northern District of Illinois, allegedly used excessive force against Santiago Solis, the 

father of a fugitive of federal law enforcement who was wanted for murder. (Tr. at 179, 544-49; 

Doc. 48-1, Ex. Walenda July 13, 2010 Report of Investigation.) Another DUSM, Harry Sims, 

believing that he had witnessed Linder use excessive force against Solis, informed Supervisor Ken 

Robinson that it was his belief that Linder had committed a civil rights violation against a civilian. 

(Tr. at 179) Sims is therefore the reporting complainant against Linder in this matter. (Id. at 

174). According to Sims, Linder, with a closed fist, punched Solis, who was handcuffed at the 

time. (Id. at 179.) The alleged 2008 civil rights violation charged in Count III of the indictment 

proceeded through administrative review at the time of its occurrence over three years ago and was 

 

4

 The Court=s findings of fact are derived from the testimony of the witnesses adduced at the evidentiary hearing, in 

addition to all other forms of evidence received into the record, (Docs. 54-57, Min. Entries; Docs. 61-68, Tr. of Hr=g), 

and the Court=s own credibility determinations after observing the demeanor of the witnesses on the stand. 
12 

declined for prosecution at that time but has been revived and charged in this Indictment.5 (Id. at 

321.) 

On July 12, 2010, Sims and Robinson made management within the District office of the 

Marshals Service, including United States Marshal Darryl McPherson and Chief Deputy Marshal 

John O=Malley, aware of the allegations regarding Linder. (Id. at 170, 308.) McPherson became 

the United States Marshal for the Northern District of Illinois a matter of weeks prior to the Linder 

incident, in June of 2010. (Id. at 163-64.) O=Malley has been with the Marshals Service for 23 

years, and is the second in command of the Marshals Service within the District. (Id. at 307-08.) 

O=Malley testified that in the entire course of his 23 year career with the Marshals Service he has 

never dealt with an OIG investigation concerning an allegation of excessive force. (Id. at 

363-64.) When he heard the allegations against Linder, McPherson appropriately considered it to 

be serious and, along with Sims and Robinson, went to O=Malley=s office to discuss the matter with 

him. (Id. at 117, 179.) 

Upon hearing the allegations from Sims, Robinson, and McPherson, and A[a]s soon as 

everyone cleared [his] office,@ O=Malley contacted Herman Brewer, who at that time was the Chief 

of the Marshals Service=s Office of Inspection. (Id. at 170, 309-10, 365.) The Office of 

Inspection is, according to former Chief of Internal Affairs Stanley Griscavage,6 Athe entity in the 

Marshals Service responsible for the integrity of the Marshals Service programs, activities, and 

personnel.@ (Id. at 16.) At the time of the Linder investigation, Griscavage was the Chief of 

 

5

 No facts were presented by the Government regarding this resurrected charge. 6

 The Government called Griscavage as its first witness. (Doc. 54, Min. Entry; Tr. at 16.) Griscavage had no 

contact with the District office, and has no first-hand knowledge of what the Office of Inspection told the District 

office to do, if anything. (Tr. at 25-26.) Brewer simply gave Griscavage the complaint for review and processing. 

(Id. at 26.) 
13 

Internal Affairs. (Id. at 31.) Internal Affairs is a Asubcomponent@ of the Office of Inspection. 

(Id. at 16, 43.) The office of Internal Affairs is located in Washington, D.C., and Marshals 

Service district offices do not have their own Internal Affairs offices. (Id. at 18.) Internal 

Affairs receives complaints and allegations of misconduct by Marshals Service personnel. (Id. at 

17.) Its primary responsibility is to process those complaints and allegations, to investigate when 

appropriate, and if substantiated, to refer them Aon to another office for adjudication.@ (Id.) 

Internal Affairs ordinarily refers complaints and allegations to the Department of Justice=s 

Regional OIG for review and potential criminal investigation. (Id. 17, 20.) 

In a civil rights case Athere=s one additional step;@ not only does Internal Affairs make its 

standard referral to the Regional OIG, it also refers the case to the Department of Justice=s Civil 

Rights Division. (Id. at 24.) In the Linder matter, Internal Affairs made formal referrals of the 

complaint to both the Department of Justice, Civil Rights Division and the OIG, Chicago Field 

Office. (Id. at 27.) 

Both the Civil Rights Division and the OIG exercise a great deal of discretion in 

determining whether and when one of these two investigative and prosecutorial departments wants 

to open an investigation into the matter referred to it by the Marshals Service=s office of Internal 

Affairs. (Id. at 24.) When a case is being investigated by the OIG, the Marshals Service 

maintains an open case file on the subject. (Id. at 21.) Furthermore, Marshals Service 

procedures call for assigning an investigator from Internal Affairs to act as Athe point of contact for 

the [OIG] investigator@ in order A[t]o assist the external agency investigator with collecting 

documents, setting up witness interviews,@ and A[w]hatever else is needed.@ (Id. at 22.) The 

individual assigned to the Linder case was Internal Affairs Investigator Jeremy Honaker. (Id.) 
14 

Once a case is reported to the OIG, the Department of Justice typically takes one of three 

actions. (Id. at 21, 44.) One course is for the OIG to retain the case for itself and conduct the 

investigation on its own. (Id. at 21, 44.) Another option is for the OIG to refer the complaint 

back to the Marshals Service as a Amanagement issue,@ meaning that the issue is one for the 

Marshals Service to resolve on its own. (Id. at 21, 44.) Finally, the OIG might send the 

complaint back to the Marshals Service with the intention of conducting a joint investigation. (Id. 

at 21, 44.) 

Upon receiving O=Malley=s call, Brewer instructed him to Aput all of the facts together in a 

summary form@ and to send the information directly to him. (Id. at 310.) Brewer said that he 

would Ahave it assigned out or referred to@ the OIG. (Id.) On July 14, 2010, O=Malley sent an 

e-mail with attachments, including a memorandum and a Report that he had written, to Brewer at 

the Office of Inspection, thereby giving written notice of the allegations against Linder and 

formally requesting an investigation. (Id. at 27, 30; Doc. 48-1, Ex. O=Malley July 14, 2010 

E-mail and Memo.; Doc. 48-1, Ex. O=Malley July 14, 2010 Report.) Once Brewer received the 

e-mail he forwarded it to Griscavage on July 15, 2010. (Tr. at 27, 31.) All cases concerning the 

use of excessive force are reported as a matter of course to the OIG. (Id. at 58.) Griscavage 

testified that a district office would not be asked to do an investigation, including conducting 

witness interviews, at the initial stages of an investigation, and definitely not before the Office of 

Inspection and the OIG had conducted their own reviews. (Id. 46.) The Office of Inspection 

would never ask a district office to investigate an allegation of excessive use of force; such cases 

are referred to the Department of JusticeCeither to the OIG or the Civil Rights Division. (Id. at 
15 

57.) In Linder=s case, the OIG determined that it would retain the case and handle the 

investigation itself. (Id. at 28.) 

After learning of the allegations from Sims, McPherson testified that he was present in the 

District office when O=Malley called Brewer and that they all communicated on a speaker phone. 

(Id. at 116-17, 171.) According to McPherson, Brewer told him and O=Malley that they were 

Awithin their rights . . . to bring Deputy Linder into the office and speak to him.@ (Id. at 172.) 

McPherson further testified that Brewer Aalso advised [them] to send out a couple of deputies@ to 

speak to the alleged victim or anyone at the alleged victim=s residence in order A[t]o see how valid 

the accusations were that were being made by@ Sims and whether they had any merit. (Id. at 117, 

174.) In his 23 years with the Marshals Service, O=Malley testified that he has Anever@ heard of a 

DUSM going out into the field to conduct an interview of an alleged victim in a civil rights 

investigation. (Id. at 324.) 

 Deputies Banos and Walenda were selected to conduct the interview of Solis because they 

were removed from the warrant unit and assigned to the threat unit. (Id. at 180.) McPherson 

testified that Walenda and Banos were brought into O=Malley=s office and that McPherson and 

O=Malley Aboth spoke to them@ and both gave them instructions. (Id. 176-77.) McPherson stated 

that they gave Walenda and Banos the name and address of Solis, the alleged victim, and the fact 

that there was an incident that occurred that involved the Marshals Service.7

 (Id. at 177-78.) 

Walenda testified that McPherson told him the name of the alleged victim, the alleged victim=s 

address, and the subject matter of the interview, namely, the events surrounding the fugitive 

investigation. (Id. at 567, 570, 573-75, 578.) 

 

7

McPherson and O=Malley disagree about who selected the deputies and directed them. Regardless, Banos and 

Walenda went at the direction of a superior in the Marshals Service and that is not disputed. 
16 

On July 12, 2010, the day that the Marshals Service management learned of the allegation 

against Linder, McPherson summoned Linder into a meeting in his office and confronted him and 

questioned him about Sims=s allegations for approximately 15 to 20 minutes in the presence of 

O=Malley, as well as Linder=s supervisors, Supervisory Inspector Ed Farrell, and Matthew Block, 

Linder=s direct supervisor. (Id. at 120-21, 202, 346, 402.) McPherson testified that he only 

informed O=Malley, Farrell, and Block that there was an Aincident that occurred out on the street 

involving Deputy Linder.@ (Id. at 196.) Farrell expressed his concerns to the group about 

questioning Linder without providing him with any form of warning and in the absence of legal 

counsel. (Id. at 397-98.) According to the United States Marshals Service Policy Directives, in a 

misconduct investigation the Marshals Service employee has certain rights, including rights to 

notice and warnings. (Id. at 211.) However, no one advised, warned, or provided Linder with 

any forms. (Id. at 218.) O=Malley testified that Linder=s interview was Aout of the ordinary,@ (id. 

at 315), but that he nevertheless complied with the directions of his superior. (Id. at 316). 

According to McPherson, after Linder was summoned into his office, he and O=Malley 

questioned Linder and the Aquestioning was led by O=Malley.@ (Id. at 204.) O=Malley testified 

that Linder answered the questions they asked of him. (Id. at 317, 320, 401-03.) O=Malley asked 

Linder if there was any reason he could think of as to why he would be called into the Marshal=s 

office, to which Linder answered that he had no idea. (Id. at 121, 317.) McPherson then 

questioned Linder about his fugitive cases. (Id. at 200.) After that, Linder was informed that an 

allegation had been made against him. (Id.) Either McPherson or O=Malley brought up the topic 

of the alleged incident reported by Sims. (Id.) McPherson or O=Malley questioned Linder about 

whether he had used force in the fugitive operation that was the subject of Sims=s allegation against 
17 

him. (Id. at 122, 204-05.) According to McPherson, Linder confirmed that he did use force 

during the incident. (Id. at 123.) Linder claimed that the force that was used was putting up his 

arms to block Solis from possibly head-butting him. (Id. at 123.) This was consistent with 

O=Malley=s July 14, 2010 e-mail to Internal Affairs concerning the use of force, which stated that 

A[w]hen asked if at any time [Linder] used physical force on the individual, he stated that he may 

have placed his elbow towards the face.@ (Id. at 347; Doc. 48-1, Ex. O=Malley July 14, 2010 

E-mail.) 

McPherson continued the interview by questioning Linder about the forms that the 

Marshals Service uses in connection with the use of force, the USM-133 Use of Force Report 

Form, and he asked Linder whether he had completed a USM-133 Form in connection with the 

subject incident. (Tr. at 123, 205, 357.) McPherson conceded that when Linder asked whether 

he needed legal counsel, the participants in the meeting decided that Linder Adidn=t need to answer 

any more questions,@ and the interview essentially ceased. (Id. at 221, 322-23, 357.) Finally, 

Linder asked if he was permitted to leave, to which McPherson replied that he was. (Id. at 

123-24, 349.) Linder did not say anything incriminating during this meeting. (Id. at 124.) 

After the meeting ended, O=Malley wrote a Report about it and forwarded it to Internal Affairs. 

(Id.) McPherson explained that Brewer gave him directions to interview Linder. (Id. at 220.) 

On July 13, 2010, upon the direction of the Marshal, Walenda and Banos traveled to Solis=s 

residence in Cicero, Illinois, at which time they interviewed Solis, the alleged victim, and took a 

photograph of him. (Id. at 182.) During the visit, Walenda and Banos asked Solis three different 

times what happened on the day of the incident before Solis ever stated that he had been hit by Aa 

Cicero police officer.@ (Id. at 183-84.) Later that day, Walenda and Banos reported back to 
18 

McPherson and met with him and O=Malley. (Id.) Walenda and Banos advised McPherson and 

O=Malley about the substance of the interview that they had conducted and displayed the 

photograph that they had taken of Solis. (Id. at 183, 312; Doc. 48-1, Ex. Solis July 13, 2010 

Photograph.) They informed them that it had taken three attempts before Solis stated anything 

about being hit and that he did not show any injuries to his face. (Id. at 583-84) 

The next day Walenda and Banos were sent to Solis=s residence for a second time. (Tr. at 

312.) Walenda testified that he believed that it was McPherson who told him to go back and take 

more photographs of Solis, the alleged victim. (Id. at 588.) O=Malley testified that when he 

discovered that Walenda and Banos had interviewed Solis and taken a single photograph, he sent 

them back out to Solis=s residence because the first interview was conducted poorly and the 

photograph was insufficient. (Id. at 312.) Walenda and Banos interviewed Solis, the alleged 

victim, a second time and took eleven additional photographs of him. (Id. at 588-89.) After they 

conducted the second interview of the alleged victim, Walenda and Banos again reported back to 

McPherson. (Id. at 589-90.) Nobody from the Office of Inspection was contacted or made 

aware of the investigative decision, by either McPherson or O=Malley, to send Marshals Service 

personnel out to interview Solis, the alleged victim, a second time. (Id. at 48.) 

On July 15, 2010, McPherson confronted Linder a second time in the presence of his 

supervisors. (Id. at 222.) The meeting occurred at 700 North Sacramento Blvd., Chicago, 

Illinois, which is the office of the Great Lakes Regional Fugitive Task Force (AGLRFTF@), where 

Linder was working. (Id.) According to Farrell, the GLRFTF A[i]s a conglomerate of law 

enforcement agencies. [The] lead agency is the U.S. Marshals Service. [The GLRFTF] work[s] 

with federal, state, and local partners as a team, capturing violent fugitives in the greater 
19 

Chicagoland area.@ (Id. at 393.) The GLRFTF looks Afor fugitivesYbased on warrants coming 

from both state courts as well as federal courts.@ (Id. at 394.) The GLRFTF is Acongressionally 

mandated to go after violent fugitives. Those would be anyone wanted from homicide, to sexual 

assault, to rape, to battery .... Any crime of violence where they=re a significant threat to the 

community.@ (Id.) Present at the July 15 meeting was McPherson, O=Malley, Farrell, Block, 

Commander Jason Grunwald, and Assistant Chief Decker. (Id. at 223.) Before Linder came into 

the meeting, there was a discussion concerning the possible reassignment of Linder to the District 

office from the GLRFTF. (Id. at 223.) Linder was eventually brought into the meeting and 

informed that he was being brought back to the District. (Id. at 228.) 

There are deputies from Marshals Service from the District assigned to the GLRFTF. (Id. 

at 395.) The Marshal retains the ultimate authority to pull those deputies back to the District 

office of the Marshals Service and off of the GLRFTF. (Id. at 168, 395.) With respect to the 

Marshal=s authority over the GLRFTF, Farrell testified: AThere are deputies from the district that 

are assigned to the Great Lakes Task Force. He has the ability to pull those deputies back.@ (Id. 

at 395.) Following the July 15 meeting, McPherson reassigned Linder back to the District office, 

as he said he was going to, to do court operations. (Id. at 227.) McPherson pulled Linder off of 

the GLRFTF and back to the District office notwithstanding the fact that both O=Malley and 

Grunwald agreed that Linder should remain on desk duty at the GLRFTF. (Id.; Doc. 48-1, Ex. 

Group E-mails No. 1.) 

On July 26, 2010, the OIG officially confirmed in a memorandum that it intended to 

investigate the Linder matter. (Id. at 42; Doc. 48-1, Ex. OIG July 26, 2010 Notice.) Kimberly 
20 

Thomas,8 the Assistant Special Agent in Charge of the OIG in Chicago, testified that Senior 

Special Agent Kevin Shirley was assigned to the Linder investigation. (Tr. at 87.) 

On July 30, 2010, Shirley contacted McPherson. (Id. at 218-19.) Shirley immediately 

questioned McPherson about the interview of Linder that he had conducted eighteen days earlier. 

(Id. at 728.) Shirley was also informed that McPherson had sent out two Marshals Service 

employees to interview Solis, Linder=s alleged victim. (Id. at 743.) Shirley requested and 

received Walenda=s Report of Investigation of Solis.9

 (Id. at 726; Doc. 48-1, Ex. Walenda June 

13, 2010 Report of Investigation.) In addition, Shirley requested and received O=Malley=s Report 

to Internal Affairs, (Doc. 48-1, Ex. O=Malley July 14, 2010 Report), the photographs that Banos 

took of Solis, (Doc. 48-1, Ex. Banos Aug. 30, 2010 E-mails and Attachments), and an e-mail from 

Banos containing the contents of a confidential text message conversation between Banos and 

Linder, (Doc. 48-1, Ex. Banos Aug. 25, 2010 E-mail), among other things (id. at 726, 742, 746, 

749). Shirley testified that both O=Malley and Farrell told him that Linder was not advised that 

the interview was voluntary. (Id. at 733-34.) 

On August 5, 2010, Robinson, following the directions of his superior, McPherson, sent an 

e-mail to Linder pulling him off of a judicial security detail that had been assembled to protect a 

Justice of the Supreme Court of the United States, and ordering him to meet with McPherson on 

August 6, 2010. (Tr. at 228-31, 372.) This action was Aout of the ordinary@ because of the 

extensive advance security measures taken to protect members of the judiciary and the sudden loss 

of a member of the security team. (Id. at 372.) Smith testified that Afor security purposes, we do 

an extensive advance of what the Justice is going to do while he=s in Chicago. So it=s important 

 

8

 The Government called Thomas as its second witness. Thomas did not participate in any investigative interviews 

and has no first-hand knowledge of the allegations in this case. 

9

Shirley misidentified the author of the Report of Investigation as Banos in his testimony. (Tr. 726.) 
21 

that with the advance team that we go through everything. We meet extensively at the venues that 

we=re going to go. So when we lose a member of the team, it=s significant.@ (Id. at 371.) 

Shirley tried to conduct an interview of Linder on August 6, 2010. (Id. at 774, 778.) 

Shirley first contacted Honaker in the Marshals Service=s office of Internal Affairs to advise him 

that he was going to be at the Marshals Service=s office in the District and that he was going to 

attempt a voluntary interview of Linder. (Id. at 774-75.) Shirley also informed McPherson that 

he wanted to conduct an interview of Linder. (Id. at 130.) He then notified Honaker and 

McPherson, either by e-mail or by telephone call, that he was coming to the District office of the 

Marshals Service. (Id. at 775.) According to McPherson, Shirley contacted him to set up an 

interview with Linder. (Id. at 130, 779.) Shirley testified that he solicited McPherson to assist 

him in obtaining a confession from Linder. (Id. at 785.) Shirley gave McPherson special 

instructions not to tell Linder that Shirley and another OIG agent, Jill Semmerling, were coming to 

interview Linder. (Id. at 130, 779, 782) (AQ: What exactly did you say to [the Marshal]? Shirley: 

Please do not advise Mr. Linder that he would be meeting with the OIG.@). Following Shirley=s 

directions, McPherson did not tell Linder what the purpose of the meeting was. (Id. at 231.) 

Semmerling was required to attend the interview because the OIG=s procedures require two agents 

to be present during interviews. (Id. at 88.) 

In Robinson=s e-mail of August 5, 2010, in which he informed Linder that he was pulling 

him from his detail on August 6, 2010, he instructed Linder to meet McPherson at 10:00 a.m. on 

that day, on the 24th floor of the Dirksen Federal Courthouse. (Id. at 776-78; Doc. 48-1, Ex. 

Robinson August 5, 2010 E-mail.) Meanwhile, Shirley and Semmerling had concealed 

themselves in an office provided to them by McPherson that is about a one minute walk from 
22 

McPherson=s office on the same floor of the Dirksen building. (Tr. at 130-31, 781.) At the 

hearing, Linder=s counsel asked Shirley: AYou didn=t want to give Linder a heads up, that you were 

going to pretty much surprise him and try to interview him?@ (Id. at 779.) To which Shirley 

answered simply: AYes.@ (Id.) Shirley testified that everybody he interviewed during the course 

of the Linder investigation was notified in advance, with the exception of Linder himself. (Id. at 

781.) 

On August 6, 2010, Linder met McPherson at 10:00 a.m. on the 24th floor of the Dirksen 

building as instructed, and McPherson immediately told Linder: AHere, come with me.@ (Id. at 

232.) McPherson led Linder to the office in which Shirley and Semmerling were waiting, opened 

the door, indicated that Linder should enter, and then quickly closed the door, turned away, and left 

Linder alone with Shirley and Semmerling, the investigating agents. (Id. at 130-31, 233, 782.) 

Shirley and Semmerling were standing with their arms outstretched holding their badges and 

credentials. (Id. at 783.) They identified themselves to Linder and advised him that they were 

investigating a claim of excessive force. (Id.) Shirley then provided Linder with a voluntary 

interview form. (Id.) The OIG agents, Shirley and Semmerling, proceeded to attempt an 

interview of Linder. (Id. at 783.) Linder decided to call an attorney, who spoke with the OIG 

agents and asked a question or two. (Id. at 784.) Ultimately, the interview did not go forward. 

(Id.) McPherson took all of the actions described above in the pursuit of obtaining a voluntary 

interview from Linder because Shirley directed him to and he was merely following Shirley=s 

directions. (Id. at 131, 235.) 

On August 25, 2010, Banos sent an e-mail to Shirley containing a private text message 

conversation between himself and Linder. (Doc. 48-1, Ex. Banos August 25, 2010 E-mail.) On 
23 

August 30, 2010, Banos sent three e-mails to Shirley containing the eleven photographs of the 

alleged victim, Solis, which he had taken at the Marshals Service management=s direction on July 

14, 2010. (Doc. 48-1, Ex. August 30, 2010 E-mails and Attachments.) 

On September 27, 2010, Linder=s Blackberry was seized at the direction of Shirley. (Tr. at 

133, 787, 791.) The OIG wanted Linder=s Blackberry seized because the OIG agents 

investigating the case believed that it contained incriminating evidence that could be used against 

Linder based on information reported to them by DUSM Sims, and therefore the OIG wanted to 

search the Blackberry. (Tr. 132-33, 248, 350.) McPherson testified that on September 24, 2010, 

Shirley contacted him because he wanted to seize Linder=s Blackberry in order to search it for 

evidence. (Id. at 132-33, 242.) The Blackberry was owned by the Marshals Service. (Id. at 

132.) McPherson contacted the Office of General Counsel (AOGC@) about whether Linder=s 

Blackberry could lawfully be confiscated by the Marshals Service, and the OGC confirmed that it 

was appropriate. (Id. at 133.) Furthermore, OIG agents have the authority to take possession of 

property that is issued by the subject agency, here the Marshals Service. (Id. at 85-86.) Shirley 

initiated the process of seizing the Blackberry by notifying Honaker in the Marshals Service=s 

office of Internal Affairs that he intended to confiscate Linder=s Blackberry. (Id. at 785-86.) 

Shirley then e-mailed McPherson and Honaker specific and detailed instructions as to how he 

wanted McPherson to confiscate the Blackberry from Linder=s possession. (Id. at 791; Doc. 48-1, 

Ex. Group E-mails No. 3.) Shirley wrote: 

Mr. McPherson: Per my telephone conversation with you yesterday, I will be 

arriving at your office at 9:30 a.m. for Linder=s government-issued phone. Linder 

will be instructed by the Marshals Service to turn in his government-issued cell 

phone and the current password for the cell phone to the Marshals Service. The 

Marshals Service will then, in turn, transfer custody of the cell phone to OIG. 

Linder should not be informed that he is turning in his government-issued cell 
24 

phone until he is in the presence of the Marshals Service representative. If Linder 

does not bring the cell phone with him when he=s summoned by the Marshals 

Service, he should be escorted to the area that the cell phone is located. We would 

ask that no one in your office be informed of Linder turning in his cell phone until 

the transfer has occurred due to Linder=s personal relationship with management 

officials within the Marshals Service. If you have any further questions, you may 

contact me via cell phone [number given] at any time or Senior Inspector Jeremy 

Honaker. 

(Tr. at 787; R. 48-1, Ex. Group E-mails No. 3.) 

Throughout the hearing, Shirley expressed his belief that A[a]lmost every supervisor in the 

Chicago area@ had a personal relationship with Linder, and that Athey would give confidential or 

sensitive information to Linder.@ (Tr. at 787-88.) Upon further questioning, Shirley admitted 

that McPherson did not have such a personal relationship with Linder, but he testified that he 

believed that O=Malley, Grunwald, Farrell, Block, Robinson, Travis Huke, and others did have this 

kind of personal relationship with Linder. (Id. at 788.) Shirley felt that these Marshals Service 

management officials Awere trying to sabotage [the] investigation.@ (Id. at 789.) No facts to 

support such a conclusion were presented in either testimony or other form by the government at 

the hearing. 

After receiving the instructions from Shirley regarding Linder=s Blackberry, McPherson 

decided not to take the Blackberry from Linder personally. (Id. at 245.) Instead, McPherson 

delegated the responsibility of seizing Linder=s Blackberry to O=Malley and Robinson. (Id. at 

133, 245-46, 329.) McPherson called O=Malley into his office where OIG agents Shirley and 

Semmerling were present and told O=Malley that he was to take custody of Linder=s Blackberry 

and then turn it over to the OIG agents. (Id. at 330.) While he was participating in the seizure of 

the Blackberry, McPherson testified that he was aware that it contained evidence that could be 

used against Linder. (Id. at 134, 248.) He became aware of this from Sims. (Id. at 135, 248.) 
25 

Linder was called into O=Malley=s office, whereupon Linder was told by O=Malley and Robinson 

to turn over his Blackberry. (Id. at 791-92.) Shirley and McPherson waited together in 

McPherson=s office while O=Malley and Robinson procured the Blackberry. (Id. at 329-30, 792.) 

After confiscating it from Linder, O=Malley delivered the Blackberry into Shirley=s custody in 

O=Malley=s own office. (Id. at 332.) 

Shirley also communicated with McPherson and Honaker concerning the OIG taking 

possession of Sims=s cell phone. (Id. at 248-49.) Shirley provided McPherson with specific and 

detailed instructions regarding how the OIG wanted McPherson to obtain Sims=s phone. (Id.) 

McPherson also delegated this assignment to either O=Malley or Robinson. (Id. at 249.) Shirley 

further directed McPherson and Honaker about producing documents and records for him. (Id. 

249-50; Doc. 48-1, Ex. Group E-mails No. 5.) 

Shirley made Aa lot@ of inquires of McPherson with respect to the scheduling of witnesses. 

(Tr.at 738.) Shirley gave McPherson notice whenever he wanted to interview a certain individual 

employed by the Marshals Service. (Id. at 125-26.) Shirley sent McPherson an e-mail stating: 

AIf you decide that you would like to notify the individuals in question of the pending interview, I 

would ask they be notified separately and not informed of any other individual who may be 

interviewed.@ (Id. at 241.) Shirley would provide a time to McPherson so that he could make 

sure that he had enough resources available to cover the times that Shirley wanted to speak with a 

witness employed by the Marshals Service. (Id. at 126.) On certain occasions, Shirley contacted 

McPherson for the purpose of setting up interviews of individuals working under McPherson=s 

command. (Id. at 240.) Shirley granted McPherson the discretion to tell all of his subordinates, 

with the exception of Linder, that the purpose of these meetings was to be interviewed by OIG 
26 

agents. (Id. at 240-24; Doc. 48-1, Ex. Group E-mails No. 2.) Shirley testified that he had a 

Alarge number@ of telephone calls and Aseveral@ meetings on Amultiple occasions@ with the 

Marshals Service in the District. (Tr. at 762, 764.) Shirley gave McPherson special instructions 

with respect to his interview of Linder as compared to other witnesses. (Id. at 241.) 

McPherson could not put a number on how many telephone calls he had with Shirley. (Id. 

at 256.) Shirley testified that he had Anumerous contacts@ with McPherson, and estimated that 

they had over 30 telephone calls. (Id. at 738.) McPherson could not come up with a rough 

estimate of the number of e-mails he exchanged with Shirley. (Id. at 257.) McPherson estimated 

that he met with Shirley in his office approximately five to ten times. (Id. at 257-58.) Shirley 

testified that he could not recall the number of meetings he had with McPherson, (id. at 757), nor 

the number of times he was in McPherson=s office, (id. at 758). 

Shirley also met McPherson in several places other than his office, including in the back of 

a courtroom, (id. at 759), in the cafeteria on the second floor of the Dirksen Federal Courthouse, 

(id. at 796), in a room behind one of the courtrooms, (id.), and outside the Dirksen building at 

sporting events involving their children, (id. at 761). 

Throughout the OIG investigation, complaints occurred from deputies regarding Shirley=s 

behavior and in response Shirley complained to McPherson about tension and division within the 

Marshals Service in the District over the Linder case. (Id. at 137-39.) According to McPherson, 

Shirley complained that he was Anot having any success@ with the voluntary interviews he was 

trying to conduct of Marshals Service personnel. (Id.) Shirley admitted to McPherson that he 

was having issues with speaking to witnesses and that witnesses felt as if they were being retaliated 

against and intimidated. (Id. at 137.) Shirley also came to the Marshal=s office to express 
27 

concern about what was being said to the deputies and Marshals Service personnel in the District. 

(Id. at 253.) Throughout the investigation, individual witnesses felt like they were being singled 

out, ostracized, and retaliated against due to the investigation of Linder. (Id. at 255.) In addition, 

witnesses, including Sims, DUSM Sean Malecha, DUSM Erick Brown, and DUSM Zitsch 

brought complaints to McPherson directly about the investigation. (Id. at 251-52.) McPherson 

testified that: A[Shirley] just explained a concern that I should have over the district and the 

division and people feeling like they were being retaliated against and they were intimidated about 

coming forward and even speaking with him.@ (Id.) 

On a separate occasion, Shirley sought to include McPherson in a meeting with the 

prosecutors assigned to the case, Assistant United States Attorneys Aejean Cha and Mark 

Blumberg, to address these concerns. (Id. at 139.) Shirley e-mailed McPherson about the 

proposed meeting, writing: AA situation has come up in regards to the Linder investigation and 

myself and two prosecutors from D.C. would like to discuss this with you personally.@ (Id. at 

253-54; Doc. 48-1, Ex. Group E-mails No. 6.) McPherson agreed to meet with them in his office 

sometime around May of 2011, which was right in the middle of the investigation of Linder. (Tr. 

at 139.) Cha and Blumberg, along with Shirley, met with McPherson in his office and discussed 

the way in which certain Government witnesses were allegedly being intimidated about the Linder 

case by Marshals Service management officials. (Id. at 140, 798-99.) The Assistant United 

States Attorneys conveyed the same concerns that Shirley had previously expressed to McPherson. 

(Id. at 254.) Shirley testified that he believed Farrell and Grunwald Awere the two main individual 

managers who were harassing the witnesses.@ (Id. at 799.) Although he provided no factual 

specifics, Shirley stated that he had instructed McPherson on how to proceed in several areas 
28 

during the investigation, and that McPherson followed all of Shirley=s instructions. (Id. at 828.) 

Shirley further testified that McPherson never once said Ano@ to him, or refused to comply with any 

of his requests. (Id.) 

On January 12, 2012, a four count Indictment against Linder was returned by the Grand 

Jury. (Doc. 1, Indict.) McPherson sought guidance from the Office of the General Counsel on 

how best to handle the public indictment and how best to give guidance to his staff. The OGC 

provided McPherson with the wording of an e-mail to send to all deputies and other Marshal 

Service personnel in the District regarding Aspecific rules@ for dealing with, among other things, 

Linder, his legal counsel, and his investigator, as well as the Government. (Tr. at 261; Doc. 48-1, 

Ex. McPherson Jan. 13, 2012 E-mail.) This being a unique situation, McPherson testified that he 

contacted the OGC and that the OGC had crafted these specific rules and sent them to McPherson, 

who proceeded to forward them on to all Marshals Service deputies and Marshals Service 

personnel within the District. (Tr. at 146-47.) McPherson testified that he had asked OGC for 

guidelines to help continue the day-to-day operations of the Marshals Service in the District; he 

didn=t tell OGC anything about what the content should be. (Id. at 146.) McPherson testified 

that given the disruptions to the operations of the Marshals Service leading up to the Indictment, he 

wanted some kind of formal guidance so that the Marshals Service personnel would not have 

questions as to what they should or should not be doing. (Id.) 

The e-mail that McPherson sent to all Deputy Marshals and Marshals Service personnel 

within the District did not indicate that it was drafted by the OGC or otherwise derived from the 

OGC; rather it gave the appearance of coming directly from the Marshal. (Id. at 262.) The 

e-mail stated that there were Aspecific rules that must be adhered to@ during the criminal 
29 

proceedings against Linder. (Id. at 262-63.) McPherson conceded that the Deputy Marshals and 

other Marshals Service personnel would interpret the rules as a command from the Marshal, (id. at 

263), and that they would be expected to follow them. (Id. at 264.) McPherson=s e-mail stated: 

Below are specific rules that must be adhered to by [United States Marshals 

Service] employees during the pendency of federal criminal proceedings against a 

DUSM from our district, including rules that outline certain limitations on [United 

States Marshals Service] employee contact with said DUSM. 

*** 

Any contact with prosecutors and investigators involved in the case must be 

handled in a polite, professional, and appropriate manner. 

*** 

[United States Marshals Service] employees may not discuss any Government 

information or any matter about the case with DUSM Linder or anyone else except 

as authorized or as a matter of official duty. 

*** 

[United States Marshals Service] employees must limit their personal contact and 

socialization with DUSM Linder to not create any appearance of the above. 

*** 

[United States Marshals Service] employees may not discuss the case with DUSM 

Linder=s attorneys or associates except after notifying management and receiving 

authorization. 

(Doc. 48-1, Ex. McPherson Jan. 13, 2012 E-mail.) The reference to Aprosecutors@ pertained to 

Assistant United States Attorneys Cha and Blumberg, and the reference to Ainvestigators@

pertained to Shirley, among others. (Tr. at 264.) O=Malley testified that the e-mail Awent out to 

the whole district, at one time,@ and that he received the e-mail just like everyone else in the 

District. (Id. at 337.) After sending out this first e-mail to all Marshals Service personnel, no 

one sought permission from management to speak with Linder or his legal counsel. (Id. at 

274-75.) 
30 

After being indicted on federal charges, Linder retained an investigator, James Delorto, a 

retired federal agent, who tried to contact eight Deputy Marshals, as well as McPherson, as part of 

Linder=s defense investigation. (Doc. 48-1, Ex. Delorto Contact Report.) In his telephone calls, 

Delorto identified himself, stated the purpose of the call, and informed the recipient of the call of 

the fact that he was working for Linder and Linder=s counsel. (Tr. at 290-91.) 

McPherson did not answer Delorto=s telephone call and did not call him back. (Id.) 

McPherson never spoke to Linder=s attorneys or investigator, and has not spoken to Linder since 

the Indictment was returned by the Grand Jury. (Id. at 291.) By contrast, McPherson met with 

the Assistant United States Attorneys on at least two occasions and had numerous contacts with 

Shirley, a Department of Justice investigator. (Id. at 139-40, 253, 256-58, 296.) McPherson 

testified that he did not return Delorto=s telephone call because he wanted to Aremain neutral.@ (Id. 

at 162, 291.) 

On February 2, 2012, a second e-mail was dispatched from the Marshal=s office. (Doc. 

48-1, Ex. McFarden February 2, 2012 E-mail.) This e-mail was sent by McPherson=s Assistant 

Chief Deputy, Tim McFarden, who sent the proposed e-mail to McPherson prior to sending it to all 

deputies and other Marshals Service personnel within the District. (Tr. at 278.) McFarden sent 

out the second e-mail because he had been told there was harassment of witnesses who were 

cooperating with the Government taking place among Marshals Service personnel in the District. 

(Id. at 298.) O=Malley testified that McFarden Awas getting word back that people had questions 

or that they were, you know, water cooler talk, chatting about the case, and he felt the need to kind 

of make it clear what the guidelines were.@ (Id. at 343.) In addition there was A[a] deputy that 

was on the assignment, we have details and assignments, et cetera, away from the district, on an 
31 

assignment. He had referenced various individuals in our office, referring to them as I believe 

rats. And there was a few individuals that were meetingCthat hadCthat had met with the 

government, so it was. . . a follow-up to an incident that occurred.@ (Id. at 298.) Zitsch testified 

that Athe second e-mail was pertaining to a specific incident that took place[.]@ (Id. at 637.) 

The second e-mail, like the first, did not make any reference to the OGC. (Id. at 279.) 

The McFarden e-mail reads in relevant part: 

It is incomprehensible that I find it necessary to send this e-mail at all, let alone 

such a short time after the Marshal sent a very forthright, clearly worded e-mail 

providing guidance on matters involving DUSM Linder and the case that is now 

being litigated in our District Court. I have copied and pasted the Marshal=s e-mail 

below. Please re-read it carefully. If it is confusing, or you find you need 

clarification on a particular portion, please ask to meet with me in person. I will 

answer any questions you have and put out further guidance if I believe it will 

benefit the situation. 

 

[Marshal McPherson=s e-mail] 

If I become aware of behavior that is contrary to the above listed guidance, it will be 

dealt with through the U.S. Marshals Service=s official discipline process and 

Employee Relations. For your reference, I have attached a Table of Marshals 

Service and DOJ Offenses. The list is not all exhaustive. Please take time to 

review it. 

(Doc. 48-1, Ex. McFarden February 2, 2012 E-mail.) McFarden=s e-mail was sent to all Deputy 

Marshals and Marshals Service personnel under the Marshal=s command within the Northern 

District of Illinois. (Tr. at 277.) O=Malley testified that McFarden=s e-mail was Aa little 

stronger,@ and that the reference to disciplinary processes and criminal offenses in the e-mail 

caused him some concern and that it was Aover the top.@ (Id. at 343-44; Doc. 48-1, Ex. McFarden 

February 2, 2012 E-mail.) After sending out the second e-mail, no subordinate Marshals Service 

employee asked management for permission to speak to Linder or his defense team. (Tr. at 
32 

281-82.) McPherson expected all Deputy Marshals and personnel in the Marshals Service within 

the District to follow his orders. (Id. at 305.) 

On May 17, 2012, four months after the initial e-mail was sent out, McPherson sent a 

Aclarifying e-mail@ to all Deputy Marshals and other personnel in the District. (Doc. 48-1, Ex. 

McPherson May 17, 2012 E-mail.) He sent the e-mail in response to receiving information that 

the first e-mail was causing problems within the Marshals ServiceCparticularly witness 

intimidation and retaliation issues. (Tr. at 161-62.) This second e-mail was sent out 27 days 

after Linder=s defense counsel filed the present Motion to Dismiss the Indictment alleging that the 

e-mail was preventing access to witnesses and violating his client=s Constitutional rights. (Doc. 26, 

Def.=s Mot. to Dismiss the Indict.) In addition, the first e-mail had apparently caused confusion 

among Marshals Service personnel about whether they were permitted to meet with the defense. 

(Tr. at 160.) O=Malley testified that this third e-mail clarified information about contact with 

Linder Aduring duty hours.@ (Id. at 345.) McPherson contacted the OCG to help him resolve the 

problem, and the OCG drafted a clarifying e-mail for McPherson to send to all Marshals Service 

personnel in the District, after the defense brought the issue to the attention of the Court and the 

Government by filing the instant motion. (Id. at 283-84; R. 26, Def.=s Mot. to Dismiss the Indict.) 

That e-mail was an attempt to clarify the first two e-mails, and read in relevant part: 

The previous guidelines provided by the district regarding the current Linder 

investigation stated that AMarshals Service employees may not discuss the case 

with DUSM Linder=s attorneys or associates except after notifying management 

and receiving authorization.@ This e-mail is to clarify that guidance as follows: 

AMarshals Service employees may not discuss the case with DUSM Linder=s 

attorneys or associates during duty hours except after notifying management and 

receiving authorization. Marshals Service employees are reminded that they are 

forbidden from discussing prisoner security information and Marshals Service 

investigative techniques at any time without prior authorization from 

management.@
33 

(Doc. 48-1, Ex. McPherson May 17, 2012 E-mail; Doc. 50-1, Gov. Ex. 1, Clarifying E-mail.) 

The e-mails sent in 2012 were in stark contrast to the Marshals Service guidance provided 

to deputies in 2008 when a previous deputy marshal was being investigated. That deputy, John 

Ambrose, a former DUSM in the District who is now incarcerated, was indicted on federal charges 

in 2004. Ambrose, 668 F.3d at 948 (Tr. at 376, 383, 409.) A number of the deputy marshals who 

testified were deputies at the time of the Ambrose indictment. The United States Marshal at that 

time, Kim Widup, advised all of the Marshals Service personnel within the District that Ambrose 

remained a Deputy Marshal, notwithstanding the indictment, and that he had not been found guilty 

of the charges against him, so he was presumed to be innocent. (Tr. at 267, 377.) Smith testified 

about Ambrose that A[w]e needed to support him, talk to him, and be his friend[.]@ (Id. at 377.) 

Smith further testified that the e-mails that were sent out regarding the Linder matter by 

McPherson and McFarden were Adefinitely concerning@ because the Linder case was not Abeing 

looked upon the same way@ as the Ambrose case was. (Id.) Farrell testified that A[i]t seemed like 

the Marshals Service had changed its permission@ regarding whether Marshals Service personnel 

could contact Linder, versus the Marshals Service=s permission regarding whether Marshals 

Service personnel could contact Ambrose. (Id. at 409.) 

Farrell also testified that in the course of the Ambrose investigation there were no 

guidelines distributed to the Marshals Service personnel like the guidelines that were e-mailed by 

Marshal McPherson to every member of the Marshals Service in the course of the Linder 

investigation. (Id. at 408.) Farrell stated that Athe most important thing is, you know, we all have 

a responsibility to anyone involved in this case, to check in on their well-being, to make sure 

they=re okay,@ and it bothered him that he had to scale back on this in dealing with Linder, while, 
34 

by contrast, he had been able to perform these Aresponsibilities@ with Ambrose. (Id. at 409-10.) 

Farrell testified that in the Ambrose case, the Marshals Service employees got their instructions 

from Ambrose himself, and that unlike the Linder case, there were no restrictions or limitations on 

talking to Ambrose. (Id. at 410.) Farrell further stated that the directions he received years ago 

in connection with the Ambrose case were different from the directions he received in the Linder 

case. (Id. at 410.) 

DUSM Lorne Stenson testified that he was approached by Linder=s counsel in a courtroom 

in early 2012, and that the attorney stated that he wanted to ask him some questions. (Id. at 693.) 

Stenson responded that there was a Astanding order@ by the Marshal stating that AI could not answer 

any questions or talk to you or any other third party without getting permission from the U.S. 

Marshals Service here in Chicago.@ (Id. at 694.) Stenson had received and reviewed the e-mails 

from both McPherson and McFarden. (Id. at 695.) From those e-mails he understood that he 

Awould be disciplined@ if he spoke to the defense without receiving permission from the Marshal. 

(Id. at 694.) 

Stenson testified that he was not a friend of Linder=s, but that he was a friend of Sims, the 

reporting complainant. (Id. at 695.) Stenson stated that he had material information about the 

allegations that Sims had made against Linder. (Id.) Stenson testified that Sims had recanted to 

him the allegations he had made against Linder shortly after he had reported the alleged assault to 

McPherson. (Id. at 695-703.) Stenson further admitted to him that he did not see what preceded 

the alleged force used by Linder on the victim. (Id. at 699-700.) Among other things, Sims told 

Stenson: AI jumped the gun. I made a mistake. I should have [taken] the time to file an accurate 

complete report.@ (Id. at 703-04.) Stenson further testified that Sims told him: AI was scared that 
35 

if I didn=t file it immediately that I would be accused of, myself, of some wrongdoing.@ (Id. at 

704.) Finally, Stenson testified that Sims told him that he Afelt bad about filing an inaccurate 

report,@ and that he Awas going to take the initiative to contact the investigators to let them know he 

made a mistake, that he didn=t write a complete and accurate report, and he jumped the gun.@ (Id.) 

Stenson did not want to discuss the case with Linder=s defense team because of 

McPherson=s e-mail. (Id.) Stenson further testified that he would not speak to the defense team, 

even now, A[u]nless they subpoena me.@ (Id. at 712, 717.) This is because Stenson remains 

concerned about working with the defense, as McPherson has the power to make determinations 

about a deputy=s career. (Id. at 717.) Stenson was also approached for a voluntary interview by 

Shirley, but he stated that he had retained counsel and declined to be interviewed. (Id. at 765, 

767.) Stenson told Shirley: AI don=t want anything to do with this case.@ (Id. at 767.) 

 O=Malley testified that minutes after McPherson=s first e-mail went out to the entire District 

he received a call from DUSM George Peters, asking: AWhat the fuck is this?@ (Id. at 337, 

342-43.) Peters is a very close friend of Linder, and was upset because of the context of the 

e-mail and his relationship with Linder. (Id. at 342.) O=Malley told Peters that it was Ajust an 

e-mail . . . to give some guidelines so [that the Deputy Marshals] know what=s going on . . . but it 

seems to me it=s language from General Counsel.@ (Id.) O=Malley also testified that he heard 

from other supervisors that they had received questions from Deputies trying to obtain clarification 

of the rules so that they could be understood in plain language. (Id. 343.) 

Peters testified about receiving the three e-mails, and the fact that he became upset upon 

reading McPherson=s first e-mail. (Tr. at 719.) He testified: A[T]he tone of it seemed as though it 

was essentially saying that Deputy Linder was guilty[.]@ (Id.) The first e-mail scared him and 
36 

made him feel that he would be scrutinized by Marshals Service management for his contacts with 

Linder. (Id. at 721.) The second e-mail had rules of conduct attached to it, which broadened the 

impact of the first e-mail. (Id. at 720.) Peters maintains that he could offer testimony at trial for 

Linder as a character witness. (Id. at 722.) 

Farrell, having 16 years of experience with the Marshals Service, is a Supervisory 

Inspector on the GLRFTF. (Id. at 393.) He was surprised by McPherson=s e-mail, believing it 

was unreasonably restrictive, but acknowledging that he had to follow the rules contained therein. 

(Id. at 406.) When he was approached by Linder=s counsel for an interview, Farrell stated: AI can=t 

talk to you because of official Marshal policy.@ (Id. at 412.) Farrell=s understanding of 

McPherson=s rule regarding contact with Linder=s attorney was that he would need to get 

permission from a supervisor, who would in turn have to get permission from headquarters or the 

Government=s prosecutors. (Id. at 413.) Because of this understanding, Linder=s attorneys have 

not been able to interview Farrell. (Id.) Farrell interpreted the second e-mail as Astrong@ and 

Athreatening@ because of the references to disciplinary measures. (Id. at 415.) 

According to Farrell, all GLRFTF members, including local officers, either read or were 

aware of the e-mails. (Id. at 417.) Farrell testified that they believed that if they violated the 

rules they could be removed from the GLRFTF by Grunwald. (Id. at 418.) The officers also 

believed that they could also lose benefits that they received as a result of working on the 

GLRFTF, such as overtime, training, vehicles, computers, cell phones, and other benefits. (Id. at 

419.) Even after receiving the so-called Aclarifying e-mail,@ Farrell refused to be interviewed by 

Linder=s counsel without permission from the Government. (Id. at 433.) Farrell supervised 

Linder on the GLRFTF and would testify that, to his knowledge, Linder never used excessive 
37 

force. (Id. at 457-58.) He was also present when McPherson interviewed Linder and the 

Government interviewed him on multiple occasions regarding his contacts with Linder on the day 

of the alleged assault. (Id.) 

Farrell testified that he was present at the July 12, 2010, meeting held in the Marshal=s 

office in which Linder was questioned by four Marshals Service management personnel. (Id. at 

395-96.) He testified that McPherson, O=Malley, Block and himself were present at the meeting 

before Linder was brought in for questioning. (Id. at 396.) Everyone in the room had some rank 

in the Marshals Service or the Investigative Operations Division. (Id. at 397.) Farrell testified 

that there was a conversation among the four participants before Linder was brought in for 

questioning. (Id. at 396.) He testified that A[w]hat I recall is Marshal McPherson brought us into 

the room. Laid out somewhat of a framework of what we were going to talk to Steve [Linder] 

about. And they were going to bring him in shortly . . . . The Marshal kind of said we were going 

to ask Steve [Linder] questions in general about what happened, at which point I said are you sure 

we can do that? And he replied yesCand I said do we need to advise him of his Kalkine rights? 

And he said no, I spoke to Internal, and they said we could ask him questions in general . . . . At 

which point after I talked about what I said that I recall, Matt handed me the written form of the 

complaint or alleged allegation. I=m not sure what it was. I started skimming it. They sent Matt 

out to get Steve [Linder]. And I didn=t get to finish it.@ (Id. at 397-99.) Farrell testified that 

after being brought into the Marshal=s office, Linder was asked questions; Athe majority of the 

questions were asked by Marshal McPherson, . . . Chief O=Malley . . . may have interjected once or 

twice. But I would say the lion=s share was by Marshal McPherson.@ (Id. at 399-400.) Farrell 

did not ask any questions, largely because he was Aconcerned that we should have read him his 
38 

rights,@ particularly his Kalkine rights. (Id. at 398, 400.) Farrell further testified that Athe extent 

of the questions were, you know, kind of tell me what happened that day or what happened on the 

day of the alleged accusation. And Steve [Linder] responded.@ (Id. at 401.) Everyone Ain the 

room understood that this was coming from another deputy . . . [a]nd that deputy had made some 

allegations that Steve [Linder] assaulted by physical means a civilian witness[.]@ (Id. at 401-02.) 

During the meeting there came a time when Linder asked if he needed legal counsel. (Id. at 403.) 

Shirley approached Farrell to conduct an interview of him, but Farrell initially refused to 

submit to a voluntary interview with Shirley. (Id. at 767.) Ultimately, Farrell agreed to be 

voluntarily interviewed by Shirley and the Assistant United States Attorneys in the presence of his 

attorney. (Id. at 767-68.) Shirley testified that during Farrell=s interview, Farrell mentioned that 

he had information on his cell phone that he was not going to share with the Government. (Id. at 

806.) Shirley immediately got on the telephone during a break in the middle of Farrell=s 

interview, while Farrell was conferring privately with his counsel, to inform Honaker at the 

Marshals Service Office of Internal Affairs that he was going to take Farrell=s cell phone. (Id. at 

805-07.) Blumberg took the cell phone from Farrell and did not return it to him. (Id. at 808.) 

Farrell testified that during the Government=s investigation, both Shirley and the Assistant United 

States Attorneys intimidated, threatened, and made misrepresentations to him. (Id. at 422-28.) 

Farrell stated that if he were subpoenaed by the defense, he could serve as a character witness for 

Linder at trial. (Id. at 458.) 

Inspector James Smith has been with the Marshals Service for 25 years, and during that 

time he has worked with Linder. (Id. at 370-71.) Smith works in the Judicial Security Division 

of the Marshals Service, where he acts as a liaison to the Unites States Court of Appeals for the 
39 

Seventh Circuit, providing them security. (Id. at 370-71.) The Judicial Security Division also 

provides security for Justices of the Supreme Court of the United States when they travel within 

the District; the Division also handles security for judicial conferences, meetings, and does 

courtroom assessments. (Id. at 371.) Smith is a friend of Linder=s, who has worked for him on 

Athree to four [security] details.@ (Id. at 371, 382.) Smith has Atried to support him@ throughout 

the investigation, and has had discussions with Linder about the case. (Id. at 382, 387.) Smith 

assured the Court that neither his friendship nor his working relationship with Linder were 

affecting his testimony at the hearing. (Id. at 389.) Smith received the e-mails from McPherson 

and McFarden and found them to be Aconcerning.@ (Id. at 376.) Smith testified that he had not 

seen or heard of anything like those e-mails in his entire 25-year career with the Marshals Service. 

(Id. at 373, 376.) Smith was concerned about the threat that violations of the rules could cause 

problems for him personally and professionally. (Id. at 377.) Smith discussed the Linder case 

and the e-mails with different deputies because they were voicing concerns about the e-mails to 

him. (Id. 375, 378.) Smith testified that certain deputies felt intimidated and fearful about 

maintaining a relationship with Linder because of Athe edict sent out by the management team.@ 

(Id. 378, 380.) Smith stated that: Adeputies from the district that have worked for me on 

protection details have voiced concerns about Y reaching out to Steve or trying to talk to him in 

any manner because of theCe-mails. I think they felt somewhat intimidated or fearful of trying to 

be his friend or reach out to him. . . . I think [they] have been afraid to have a relationship with 

Steve [Linder] because of the e-mails.@ (Id. at 378.) The second e-mail was even more 

surprising to Smith because it referenced federal offenses, which came attached to the e-mail, for 

violating the rules that the Marshal had e-mailed to everyone in the Marshals Service in the 
40 

District. (Id. at 382.) Smith testified that various deputies voiced concerns to him about Linder 

and the e-mails, but that he was not comfortable disclosing the names of any of those deputies to 

the Court at the evidentiary hearing because he didn=t want any of them to Abe impacted by the 

Marshals Service@ or retaliated against in any way because Athey=re not supposed to have contact 

with Steve [Linder].@ (Id. at 380.) He further testified: AI think people were concerned because 

of theCthe edict sent out by the management team. . . . Whether or not [a DUSM] had evidence or 

not, they wereCthey were concerned about coming forward, no matter what, if they were reaching 

out to Steve or not. . . . I said there was a concern of the deputies that have worked for me about 

talking about the case at all. . . .They were just afraid to talk about the case.@ Smith stated that he 

could and would testify for Linder as a character witness at trial. (Id. at 380-81.) 

Detective John Hadjioannou, of the Berwyn Police Department and a member of the 

GLRFTF, is a percipient witness to the alleged assault of July 8, 2010, as he was present at the 

scene that forms the basis of the charge alleged in Count I of the Indictment. (Id. at 531.) He has 

been interviewed by the Government twice, once by Shirley and another agent, and once for 

several hours by Shirley, Cha and Blumberg. (Id. at 532-33.) Linder=s attorneys attempted to 

contact Hadjioannou more than once about Linder=s case. (Id. 535.) Hadjioannou has not 

spoken with Linder=s counsel, and has refused to speak with the defense, because his team leaders 

on the GLRFTF informed him of McPherson=s e-mails and because of the intimidating manner in 

which he was treated by Shirley and the Assistant United States Attorneys. (Id. at 537, 540-41.) 

Hadjioannou has seen the e-mails because they were printed out and accessible at the GLRFTF 

office. (Id. at 541-42.) He testified that because of the e-mails: AI don=t want to get involved 
41 

with this case.@ (Id. at 542.) He further testified that he Adidn=t want to be thrown off the Task 

Force for doing something that other U.S. Marshals were actually told not to do.@ (Id. at 543.) 

Hadjioannou testified that he has information that could benefit Linder at trial. (Id. at 

562.) The information that Hadjioannou has is important to the underlying facts of the case, yet 

he feels that he has been hampered in communicating that information to the defense in part due to 

the intimidation by Shirley and in part due to the e-mail from the Marshal. (Id.). The Court even 

questioned Hadjioannou on the subject: AThe Court: Do you have information that you think that 

you have not conveyed to the Government that would be beneficial to Mr. Linder? Hadjioannou: 

Yes.@ (Id. at 565.) Shirley intimidated Hadjioannou and indirectly impacted his decision not to 

speak with the defense. (Id. at 564-65.) Hadjioannou testified that Shirley was Aintimidating@

during their interview. (Id. at 537.) Shirley threatened him that he would be the target of an 

investigation if he was not cooperative. (Id. at 539.) Cha and Blumberg made him feel like he 

had received a Abeat down@ during their interview with him. (Id.) They accused him of lying and 

they threatened him with consequences. (Id.) 

DUSM Troy Brejc met with Shirley and was interviewed by the Assistant United States 

Attorneys concerning the events of July 8, 2010, as well as Linder=s character. (Id. at 667-68.) 

Brejc also testified before the Grand Jury. (Id. at 670.) He was contacted by Delorto, the 

defense investigator, but he has not spoken with the defense about the case. (Id. at 671.) Delorto 

took notes of his calls, he wrote the following about Brejc: 

Troy Brejc: Contacted on 4-13-12 @ 10:09 a.m. . . . Left a voice message 

identifying myself as James Delorto, a licensed private investigator working on 

behalf of Mr. Steven Linder and his attorney Mr. Frank Lipuma and requested that 

return my call . . . At 10:48 a.m. on 4-13-12 Marshal Brejc returned my call and 

advised me that he is awaiting advice from his union attorney about setting up a 

meeting with his attorney present and will re-contact me ASAP. He advised that 
42 

Steve Linder is a good guy and a friend and wants to cooperate as much as possible 

but at the same time be represented by counsel. On the afternoon of 4-13-12 Troy 

again called and advised me that he could meet me without his attorney and answer 

questions about the Linder case . . . On 4-18-12 @ 10:15 a.m. Troy advised me he 

could talk to me but was reluctant to talk to both me and attorney Frank La Puma 

[sic] at the same time without his attorney present. I told him I would advise Mr. 

La Puma [sic] and contact him by phone in a few days. 

(Doc. 48-1, Ex. Delorto Contact Report.) Brejc testified that while he wanted to cooperate with 

the defense, eventually he Adidn=t believe [he] was allowed to.@ (Id. at 671-72.) Brejc sought 

legal advice because he was scared and felt the need to protect himself. (Id. at 684.) Ultimately 

he decided not to cooperate with the defense, in part because of the McPherson and McFadden 

e-mails. (Id. 672-73.) Brejc has also ceased contact with Linder because of the e-mails. (Id. 

674-75.) Brejc did not seek authorization from McPherson to speak with Linder or his counsel 

because he did not want to deal with the Aramifications.@ (Id. at 685.) He believed that 

McPherson and the Marshals Service management generally Awere taking a side when they sent 

out those e-mails[.]@ (Id. at 689.) 

DUSM Paul Zitsch is also a percipient witness to the events charged in Count I of the 

Indictment as he was present at the scene of the alleged assault on July 8, 2010. (Id. at 615, 

624-25.) Zitsch spoke with the Government Aseveral@ times, met with Shirley and the Assistant 

United States Attorneys, and testified before the Grand Jury. (Id. at 616-20.) Zitsch drove with 

Sims from Cicero, the location of the alleged assault, to the Dirksen Federal Courthouse 

immediately after the alleged assault, and yet Sims said nothing about the alleged assault. (Id. at 

628.) Zitsch testified that in the car ride Sims Asaid absolutely nothing@ about observing Linder 

assault someone. (Id.) Linder contends that this is evidence held by Zitsch that is favorable to 

him. (Doc. 86, Def.=s Post-Hr=g Br. at 25.) Linder also claims that Zitsch saw the alleged victim 
43 

without any marks or bruising after the purported assault which is also favorable defense evidence. 

(Id.) Zitsch received and read the McPherson and McFarden e-mails. (Tr. at 635.) He was 

subsequently contacted by Delorto. (Id. at 632-34.) However, he did not feel comfortable 

returning Delorto=s call. (Id. at 633.) Zitsch testified that he was obligated to follow the rules set 

forth by the Marshal. (Id. at 636.) 

Lieutenant Theodore Stajura, of the Cook County Sheriff=s Police Department and a former 

member of the GLRFTF, is another percipient witness. (Id. at 464, 466-67.) He testified that he 

was on the scene on July 8, 2010, when Linder allegedly assaulted Solis. (Id. at 463-67.) Given 

his rank with the Cook County Sheriff=s Police Department, Stajura had supervisory command 

over 12 officers on the GLRFTF. (Id. at 468.) Stajura knew Linder because he served with him 

on the GLRFTF. (Id.) Stajura was interviewed by Shirley and later by the Assistant United 

States Attorneys, and he testified before the Grand Jury. (Id. at 467.) McPherson=s e-mail was 

delivered directly to Stajura=s Marshals Service-issued Blackberry. (Id. at 485, 492.) Stajura=s 

immediate reaction to the e-mail was to Astay away@ from Linder given the Avery severe@ tone of 

the e-mail. (Id. at 486-87, 512.) Stajura testified that he thought the e-mail basically said to 

Acease and desist@ all contact with Linder. (Id. at 488.) Stajura followed McPherson=s directive, 

(id. at 486), especially after he asked Farrell about it and Farrell told him to Aheed it and listen to 

it.@ (Id. at 488-89.) 

Stajura, as a supervisor, spoke to the officers under his command on the GLRFTF about the 

e-mails. (Id. at 488.) He told the officers about the rules, which he described as coming from the 

Ahighest level,@ and instructed the officers to limit their association with Linder. (Id.) Stajura 

gave these instructions to at least five officers with knowledge of the events of July 8, 2010, the 
44 

date of the alleged assault charged in Count I of the Indictment. (Id. at 490.) While Stajura told 

his officers to cease contact with Linder, he simultaneously told them that they Ahad to cooperate 

with the investigation that was being conducted by Senior Special Agent Shirley.@ (Id. at 494, 

509-10.) 

Linder=s defense team attempted to contact Stajura, but he never spoke to them. (Id. at 

504.) Stajura did not speak with the defense because he had concerns about meeting with 

Linder=s attorneys because of Shirley=s aggressive conduct and the repercussions that might befall 

him and his officers if he met with any member of the defense team. (Id. at 504-05.) Stajura 

believed that Aeverything should be coordinated through the government.@ (Id. at 516-17.) 

Stajura testified that he feared prosecution from Shirley and Cha. (Id. at 505.) He also testified 

about having contact with Linder and that he had Aconcerns@ and Asome issues . . . based on the 

conduct of Special Agent Shirley and how this was playing out that . . . [his] personal belief is there 

might be some repercussions . . . from Marshals= management if [he] were to cooperate with the 

defense team.@ (Id. at 504-05.) Stajura followed Shirley=s orders and collected documents for 

Shirley and helped him arrange interviews for the Linder matter. (Id. at 501.) 

As characterized by Linder, Stajura Aalso testified about Agent Shirley=s rogue conduct.@ 

(Doc. 86, Def.=s Post-Hr=g Br. at 26.) Shirley and Stajura had an agreement concerning how 

Shirley would conduct interviews of sheriff=s officers and how he would effect service of 

subpoenas on them so that they could be cleared with management in the sheriff=s office. (Tr. at 

421, 474-75.) However, Shirley subsequently pulled officers off of their job assignments without 

obtaining Stajura=s approval or even giving him notice. (Id. at 421, 477-78.) Shirley also 

violated the agreement by serving officers with subpoenas directly. (Id. at 421-22, 476.) Shirley 
45 

told some officers that they needed to cancel their scheduled work assignments at any given 

moment in order to meet with him. (Id. at 424.) At one point, Stajura discovered an officer, 

Myron Weres, who had been pulled off his assignment, talking with Shirley and another agent. 

(Id. at 477-78.) Stajura ordered Weres to write a Aformal to/from@ memorandum Ato document his 

actions@ as a consequence for leaving his assignment without Stajura=s knowledge. (Id. at 479.) 

Stajura testified that when he attempted to point out Shirley=s disruption with his supervisees= work 

schedule, ASpecial Agent Shirley got confrontational with me and basically threatened to bring me 

before the grand jury.@ (Id. at 478-79.) Due to the aggressive nature of Shirley=s interaction with 

his staff, Stajura reported this incident and others involving Shirley to his Chief, Dwayne 

Holbrooke. (Id. at 479-80.) 

Another member of the GLRFTF also expressed concern about the aggressive and 

threatening behavior of Shirley during the investigation. Holbrooke, Chief of Police of Cook 

County and a member of the GLRFTF, wrote a formal letter of complaint to the OIG and the 

Department of Justice against Shirley. (Id. at 420, 480-81; Doc. 48-1, Ex. Holbrooke Nov. 16, 

2011 Letter.) Other GLRFTF members told Farrell that Shirley had treated them in a 

Aheavy-handed@ manner. (Tr. at 422.) Grunwald was approached by Shirley to give a voluntary 

interview, but he declined. (Id. at 769-71.) Shirley, therefore, instructed Grunwald to appear at 

his office on January 19, 2012, at a specified time to sit for a compelled interview conducted by 

Shirley. (Id.) Shirley told Holbrooke that Ahe owned [Holbrooke=s] officers.@ (Id. at 481.) A 

couple of officers told Farrell that Shirley had Athreatened@ them. (Id. at 422.) Since the time of 

these events Holbrooke has retired. (Id. at 482. 
46 

Shirley testified falsely a number of times during the hearing on this Motion. (Doc. 86, 

Def.=s Post-Hr=g Br. at 27.) For example, Shirley testified that he never shared with McPherson 

information about whether any witnesses had agreed to be interviewed. (Tr. at 816.) However, 

an exhibit introduced by the defense establishes that Shirley sent McPherson a courtesy copy of an 

e-mail in which Shirley explained that Grunwald=s interview was being compelled because he had 

refused to sit for a voluntary interview. (Doc. 48-1, Ex. Group E-mails No. 8.) Shirley also 

testified that he never discussed with McPherson how to approach a witness. (Tr. at 816.) 

However, the hearing testimony makes clear that Shirley gave McPherson clear directions on 

multiple occasions, including about delivering Linder to OIG agents Shirley and Semmerling to be 

interviewed. (Id. at 130.) Shirley further testified that he never discussed the strengths of the 

case against Linder with McPherson. (Id. at 817.) The evidence is to the contrary; Shirley 

complained to McPherson about Anot having any success with@ Government witnesses, and he 

accordingly secured meetings with McPherson to discuss witness participation, including one in 

which Cha and Blumberg also discussed witness issues with McPherson. (Id. at 139-40, 798.) 

Cha took over the investigation of this case from another AUSA, Nicole Ndumele, in 

December of 2010, and Shirley worked in concert with Cha thereafter. (Id. at 835-36.) Shirley 

testified that he was in constant contact with Cha, sometimes communicating with her, either by 

telephone or e-mail, multiple times a day, nearly every day throughout the course of the 

investigation. (Id. at 821-22, 835.) Cha (or another AUSA) was aware of everything Shirley 

was doing during the investigation. (Id. at 835.) 

Linder asserts that he has been prevented from interviewing witnesses. (Doc. 86, Def.=s 

Post-Hr=g Br. at 28.) Shirley, by contrast, admitted at the evidentiary hearing that he was able to 
47 

interview everyone he wanted to during the course of the 18-month investigation of Linder. (Tr. 

at 772, 774.) Although the Government admitted that if Shirley could not secure a voluntary 

interview from a witness, he would force the witness to submit to a compelled interview, it made 

no effort to interview Stenson, the one deputy with whom Sims discussed the case. (Id. at 767, 

770; Doc. 48-1, Group E-mails No. 8.) Shirley testified that McPherson did everything that 

Shirley asked of him in the course of the investigation of Linder and Acomplied with everything 

that [Shirley] requested.@ (Tr. at 828.) 

THE COURT=S POWER TO DISMISS THE INDICTMENT

Article III courts draw their power to dismiss an indictment from three discrete sources. A 

federal court may dismiss an indictment pursuant to the Constitution, pursuant to the court=s 

supervisory powers, or pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure. See 

United States v. Caruto, 663 F.3d 394, 397 (9th Cir. 2010) (internal citation and quotation marks 

omitted) (noting that the power of a federal court to dismiss an indictment is derived from Athe 

Constitution, [or] the courts= inherent supervisory powers@); United States v. DeLaurentis, 230 

F.3d 659, 660B61 (3d Cir. 2000) (AFederal Rule of Criminal Procedure 12(b)(2) authorizes 

dismissal of an indictment if its allegations do not suffice to charge an offense, but such dismissals 

may not be predicated upon the insufficiency of the evidence to prove the indictment=s charges.@); 

United States v. Isgro, 974 F.2d 1091, 1094 (9th Cir. 1992) (AFirst, a court may dismiss an 

indictment if it perceives constitutional error . . . Second, a district court may draw on its 

supervisory powers to dismiss an indictment.@); United States v. McKenzie, 678 F.2d 629, 631 (5th 

Cir. 1982) (AThus, whether the court is acting under its supervisory authority or its duty to protect 

the constitutional rights of defendants, an indictment may be dismissed only where the defendants=
48 

case has been unfairly prejudiced.@). AWhile responsibility for keeping federal criminal 

investigations and prosecutions within the bounds appropriate on the assumptions inherent in a 

federal system should rest, in the first instance with United States Attorneys under the active 

guidance of the Attorney General, we are not prepared to say that, absent Congressional limitation, 

a federal court may never dismiss a prosecution as an abuse of federal power.@ United States v. 

Archer, 486 F.2d 670, 678 (2d Cir. 1973) (Friendly, J.). 

The first source of authority for the federal courts to dismiss an indictment is their power 

and duty to dismiss an indictment obtained in violation of the Constitution or the laws of the 

United States. United States v. Holloway, 74 F.3d 249, 253 (11th Cir. 1996) (a federal court may 

dismiss an indictment when it violates the Constitution or laws of the United States); see also 

United States v. Harris, 832 F.2d 88, 89 (7th Cir. 1987) (AOn appeal, [the defendant] asserts that 

his indictment offends the Double Jeopardy Clause of the federal Constitution because each count 

of the indictment charges him with the same offense.@); United States v. Hyder, 732 F.2d 841, 843 

(11th Cir. 1984) (AFederal courts possess the power and duty to dismiss federal indictments 

obtained in violation of the Constitution or laws of the United States.@); United States v. Pabian, 

704 F.2d 1533, 1536 (11th Cir. 1983) (AFederal courts possess the power and duty to dismiss 

federal indictments obtained in violation of the Constitution or laws of the United States.@); see, 

e.g., United States v. Thomas, 534 F. Supp. 2d 912, 915 (N.D. Iowa 2008) aff'd sub nom. United 

States v. Howell, 552 F.3d 709 (8th Cir. 2009) (internal quotation marks omitted) (AThe court 

possesses an inherent power to dismiss federal indictments obtained in violation of the 

Constitution of the United States.@); United States v. Weekley, 389 F. Supp. 2d 1293, 1297 n.3 

(S.D. Ala. 2005), aff=d, 189 F. App=x 903 (11th Cir. 2006) (internal quotation marks omitted) (AThe 
49 

law is clear that federal courts possess the power and duty to dismiss federal indictments obtained 

in violation of the Constitution or laws of the United States.@); In re Grand Jury Proceedings, 700 

F. Supp. 626, 628 (D.P.R. 1988) (AFederal courts have the power and duty to dismiss federal 

indictments obtained in violation of the Constitution or laws of the United States.@). In other 

words, dismissal of an indictment may be warranted where the government has committed 

constitutional error. United States v. Mills, 995 F.2d 480, 486 (4th Cir. 1993) (AWe review 

indictments for constitutional error and prosecutorial misconduct.@); Isgro, 974 F.2d at 1094 

(quoting United States v. Larrazolo, 869 F.2d 1354, 1358 (9th Cir. 1989)) (internal quotation 

marks omitted) (A[A] court may dismiss an indictment if it perceives constitutional error[.]@). 

The second source of authority from which the federal courts draw their power to dismiss 

an indictment, generally on nonconstitutional bases and usually for governmental misconduct, lies 

in the courts= supervisory powers. The Supreme Court has long recognized that A[c]ertain implied 

powers must necessarily result to our Courts of justice from the nature of their institution.@ 

United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812). These powers are Agoverned not by 

rule or statute but by the control necessarily vested in courts to manage their own affairs so as to 

achieve the orderly and expeditious disposition of cases.@ Link v. Wabash R. Co., 370 U.S. 626, 

630B631 (1962). AIn this posture we have then a case that raises not a constitutional question but 

one concerning our supervisory powers over federal law enforcement agencies.@ Rea v. United 

States, 350 U.S. 214, 216-17 (1956). 

AThe court has inherent authority to regulate the administration of criminal justice among 

the parties before the bar.@ United States v. Cortina, 630 F.2d 1207, 1214 (7th Cir. 1980). The 

lower federal courts are creatures of statute. Thus, Athe exercise of the inherent power of lower 
50 

federal courts can be limited by statute and rule.@ Chambers v. NASCO, Inc., 501 U.S. 32, 47 

(1991). ANevertheless,@ the Supreme Court has explained, Awe do not lightly assume that 

Congress has intended to depart from established principles such as the scope of a court=s inherent 

power.@ Id. (internal quotation marks omitted). For Congress to displace or repudiate the lower 

federal courts=s supervisory powers, the Supreme Court has demanded something akin to a clear 

statement from Congress expressing its intent to do so. Id.; see also Hobby v. United States, 468 

U.S. 339, 349 (1984) (AAt oral argument, petitioner eschewed primary reliance upon any particular 

constitutional provision and instead invoked this Court=s supervisory power over the federal courts 

as a basis for the relief he seeks.@); Lee v. United States, 432 U.S. 23, 37 (Marshall, J., dissenting) 

(AIt is apparent to me that this Court has today deliberately passed up an opportunity to exercise its 

supervisory power to prohibit rather than to condone fundamental errors in criminal procedure.@);

United States v. LaMantia, 59 F.3d 705, 707 (7th Cir. 1995) (A[T]he court=s supervisory authority 

can be used to dismiss an indictment.@); United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978) 

(AUnder its inherent supervisory powers, a federal court is empowered to dismiss an indictment on 

the basis of governmental misconduct.@) 

The doctrine of the federal courts= supervisory powers, sometimes referred to as the courts=

inherent authority, finds its roots as far back as the founding era. See Hudson, 11 U.S. (7 Cranch) 

at 34 (A[O]ur Courts no doubt possess powers not immediately derived from statute.@). The 

Amoment the courts of the United States were called into existence and invested with jurisdiction 

over any subject . . . they became possessed of [inherent] power.@ Ex parte Robinson, 86 U.S. (19 

Wall.) 505, 510 (1873). The supervisory powers of the federal courts, though Anot specifically 

required by the Constitution or the Congress,@ United States v. Hasting, 461 U.S. 499, 505 (1983), 
51 

are nevertheless Anecessary to the exercise of all others,@ Roadway Exp., Inc. v. Piper, 447 U.S. 

752, 764 (1980); see also Chambers, 501 U.S. at 43 (internal citations and quotation marks 

omitted) (AIt has long been understood that certain implied powers must necessarily result to our 

Courts of justice from the nature of their institution, powers which cannot be dispensed with in a 

Court, because they are necessary to the exercise of all others.@); McNabb v. United States, 318 

U.S. 332, 341 (1943) (internal citations and quotation marks omitted) (AGuided by considerations 

of justice, and in the exercise of supervisory powers, federal courts may, within limits, formulate 

procedural rules not specifically required by the Constitution or the Congress.@); United States v. 

Williams, 504 U.S. 36, 46 (1992) (quoting Hasting, 461 U.S. at 505) (same); Bank of Nova Scotia 

v. United States, 487 U.S. 250, 254 (1988) (quoting Hasting, 461 U.S. at 505) (same); United 

States v. Goodson, 204 F.3d 508, 513 (4th Cir. 2000) (quoting Hasting, 461 U.S. at 505) (internal 

quotation marks omitted) (A[T]he court may have been relying on its general supervisory power to 

administer its docket and preserve the integrity of the judicial process. A court=s supervisory 

power authorizes it to formulate procedural rules not specifically required by the Constitution or 

by Congress.@). In the words of the Seventh Circuit, A[t]he >supervisory power= of the federal 

courts is a power to formulate rules of the common law when neither Constitution nor statute 

supplies a rule of decision.@ United States v. Schwartz, 787 F.2d 257, 267 (7th Cir. 1986).

There are three purposes underlying the federal courts= use of their supervisory powers: the 

first is to implement a remedy for the violation of recognized rights; the second is to preserve the 

integrity of the judicial system by ensuring that a conviction rests on appropriate considerations 

validly before a jury; and the final purpose is to provide a remedy designed to deter illegal conduct. 

Hasting, 461 U.S. at 505. A[G]iven the constitutionally-based independence of each of the three 
52 

actorsCcourt, prosecutor and grand juryCwe believe a court may not exercise its >supervisory 

power= in a way which encroaches on the prerogatives of the other two unless there is a clear basis 

in fact and law for doing so. If the district courts were not required to meet such a standard, their 

>supervisory power= could readily prove subversive of the doctrine of separation of powers.@ 

United States v. Chanen, 548 F.2d 1306, 1313 (9th Cir. 1977) (emphasis supplied). As one 

commentator has observed, A[t]he judicial temptation to supervise [prosecutors] is powerful. It 

seems so natural: judges are more experienced, more dispassionate, better able to weigh the 

investigators= legitimate interests against principles of fairness and, presumably, wiser. . . . [United 

States v. Ming He10] demonstrates the increasing pressure judges feel to take back, or at least 

balance, some of the power that has been vested in the executive branch.@ Gleeson, ASupervising 

Criminal Investigations: The Proper Scope of the Supervisory Power of Federal Judges,@ 5 J.L. & 

Pol=y 423 (1996-1997). 

The third source of authority from which the federal courts draw their power to dismiss an 

indictment emanates from Rule 12(b) of the Federal Rules of Criminal Procedure, which allows 

for the consideration by this Court, at the pretrial stage, of Aany defense, objection, or request that 

the court can determine without a trial of the general issue. . . . that [a] party may raise by pretrial 

motion.@ Fed. R. Crim. P. 12(b)(2). A motion to dismiss an indictment usually can be 

determined without a trial. United States v. Nukida, 8 F.3d 665, 669 (9th Cir. 1993) (AA motion to 

dismiss is generally capable of determination before trial.@); United States v. Shortt Accountancy 

Corp., 785 F.2d 1448, 1452 (9th Cir. 1986) (internal quotation marks omitted) (AA pretrial motion 

is generally capable of determination before trial[.]@); United States v. Jones, 542 F.2d 661, 664 

 

10 94 F.3d 782 (2d Cir. 1996). 
53 

(6th Cir. 1976) (A[Federal Rule of Criminal Procedure 12(b)] was written to encourage the making 

of motions prior to trial.@). Pursuant to the Federal Rules of Criminal Procedure the following 

must be raised prior to trial: A(A) a motion alleging a defect in instituting the prosecution; (B) a 

motion alleging a defect in the indictment or information. . . .@ Fed. R. Crim. P. 12(b)(3)(A) and 

(B); see generally United States v. Rodriguez, 738 F.2d 13, 15 (1st Cir. 1984). 

Rule 12(b)(1) of the Federal Rules of Criminal Procedure permits a defendant to raise a 

motion to dismiss an indictment based on defects in the prosecution of the indictment after it is 

returned but before trial on the merits. Deaver v. Seymour, 822 F.2d 66, 70 (D.C. Cir. 1987) 

(Silberman, J.). AMoreover, district courts may make preliminary findings of fact necessary to 

decide questions of law presented by pretrial motions so long as the trial court=s conclusions do not 

invade the province of the ultimate finder of fact.@ United States v. Levin, 973 F.2d 463, 467 (6th 

Cir. 1992). Federal Rule of Criminal Procedure 12(b) allows that a pretrial motion to dismiss an 

indictment is well-taken where the government, as a matter of law, is incapable of proving beyond 

a reasonable doubt the charges against the defendant, or where the government has violated the 

defendant=s constitutional rights or has committed constitutional error in the prosecution of the 

indictment. Id. at 468. Rule 12(b) of the Federal Rules of Criminal Procedure Aserves the 

salutary purpose of preventing unnecessary trials and deterring the interruption of a trial on the 

merits for any objection relating to the institution and presentation of the charge,@ such as a motion 

to dismiss an indictment. Sewell v. United States, 406 F.2d 1289, 1292 (8th Cir. 1969). 

In United States v. Russell, 411 U.S. 423, 432 (1973), the Supreme Court recognized Aa 

situation in which the conduct of law enforcement agents is so outrageous that due process 

principles would absolutely bar the government from invoking judicial processes to obtain a 
54 

conviction.@ (internal citation omitted) (emphasis supplied). The Court acknowledged that such 

conduct by law enforcement would violate that Afundamental fairness, shocking to the universal 

sense of justice, mandated by the Due Process Clause of the Fifth Amendment.@ Id.

(quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 (1960)) (internal quotation 

marks omitted). Although the Russell Court did not provide a context in which to clarify the level 

of outrageousness that would be necessary to trigger the protections of the Fifth Amendment, the 

Court made it clear that a defendant asserting such outrageous conduct must show actual prejudice 

to warrant the dismissal of an indictment with prejudice. Russell, 411 U.S. at 432; see also United 

States v. Morrison, 449 U.S. 361, 364-66 (1981). 

 Unlike in a civil action, a grand jury indictment is generally not subject to dispositive 

motion practice, and the remedy of dismissal is rarely invoked because it is deemed to be 

extraordinary. United States v. Li, 206 F.3d 56, 62 (1st Cir. 2000) (quoting United States v. 

Stokes, 124 F.3d 39, 44 (1st Cir. 1997)) (internal quotation marks omitted) (ABecause the public 

maintains an abiding interest in the administration of criminal justice, dismissing an indictment is 

an extraordinary step.@); see, e.g., United States v. George, 839 F. Supp. 2d 430, 435 (D. Ma. 2012) 

(AIn contrast to civil actions, an indictment generally is not subject to dispositive motion 

practice.@); United States v. Goodrich, 804 F. Supp. 2d 64, 67 (D. Me. 2011) (same); United States 

v. Cameron, 662 F. Supp. 2d 177, 179 (D. Me. 2009), aff=d, 699 F.3d 621 (1st Cir. 2012) (same). 

In the ordinary course of a federal criminal prosecution, a facially valid indictment returned by a 

properly constituted grand jury generally calls for a trial on the merits. Costello v. United States,

350 U.S. 359, 363-64 (1956) (AAn indictment returned by a legally constituted and unbiased grand 

jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of 
55 

the charge on the merits. The Fifth Amendment requires nothing more.@); United States v. Wills, 

346 F.3d 476, 488-89 (4th Cir. 2003) (same); United States v. Reyes-Echevarria, 345 F.3d 1, 5 (1st 

Cir. 2003) (same); United States v. Short, 671 F.2d 178, 181 (6th Cir. 1982) (same). 

Nevertheless, dismissal of an indictment may be used Ato insure proper standards of conduct by the 

prosecution.@ United States v. Pino, 708 F.2d 523, 530 (10th Cir. 1983). 

A[D]ismissing an indictment is an extraordinary step,@ Li, 206 F.3d at 62, because by 

returning an indictment, the grand jury is carrying out a constitutionally prescribed function 

enshrined in the Bill of Rights. See U.S. Const., amend. V (ANo person shall be held to answer for 

a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.@). 

Furthermore, because of the Anecessity for preserving society=s interest in the administration of 

criminal justice,@ dismissing an indictment is an infrequently utilized remedy in the arsenal of the 

federal courts. Morrison, 449 U.S. at 364 (concluding that the dismissal of an indictment is 

unwarranted absent a constitutional violation that prejudices the defendant=s case). Federal courts 

are advised to exhibit a modicum of restraint when considering whether to dismiss an indictment 

because a dismissal encroaches not only upon the fundamental role of the grand jury, but also upon 

the role of the prosecutor, who is the constitutional actor charged with enforcing federal criminal 

law within the Executive Department, a coordinate and coequal Department of our government 

with a degree of constitutionally mandated independence. See U.S. Const., art. II, ' 3 (The 

President Ashall take Care that the Laws be faithfully executed@); United States v. Samango, 607 

F.2d 877, 881 (9th Cir. 1979) (AThe Court=s power to dismiss an indictment on the ground of 

prosecutorial misconduct is frequently discussed but rarely invoked. Courts are rightly reluctant 

to encroach on the constitutionally-based independence of the prosecutor and grand jury.@). The 
56 

Executive Department is represented in most criminal litigation by the United States Attorney. 

AA district judge may not limit the U.S. Attorney=s authority to decisions that garner the support of 

each law-enforcement agency, or the majority of some committee.@ United States v. Zingsheim, 

384 F.3d 867, 872 (7th Cir. 2004) (Easterbrook, J.); see also United States v. Armstrong, 517 U.S. 

456, 464 (1996) (quoting U.S. Const., art. II, ' 3) (AThe Attorney General and United States 

Attorneys retain broad discretion to enforce the Nation=s criminal laws. They have this latitude 

because they are designated by statute as the President=s delegates to help him discharge his 

constitutional responsibility to >take Care that the Laws be faithfully executed.=@); Whitehouse v. 

United States Dist. Court, 53 F.3d 1349, 1359 (1st Cir. 1995) (AWhen a federal court uses its 

supervisory power to dismiss an indictment it directly encroaches upon the fundamental role of the 

grand jury. That power is appropriately reserved, therefore, for extremely limited 

circumstances.@); United States v. Giorgi, 840 F.2d 1022, 1030 (1st Cir. 1988) (quoting United 

States v. Ogden, 703 F.2d 629, 636 (1st Cir. 1983)) (internal quotation marks omitted) (AThe basic 

rule is that, because of the constitutionally mandated independence of the grand jury and the 

prosecutor, courts should be reluctant to dismiss an indictment.@). AA dismissal, therefore, will be 

ordered only for serious and blatant prosecutorial misconduct that distorts the integrity of the 

judicial process.@ Ogden, 840 F.2d at 1030. 

Taking into account these principles and after reviewing the facts and testimony set forth in 

the hearing and after judging the credibility of the witnesses, this Court finds that this is one of 

those rare circumstances where the Court must dismiss an indictment due to the Constitutional 

violations committed and the need to sanction the extreme and damaging conduct which violated 
57 

Linder=s Sixth Amendment right to compulsory process of witnesses and his Fifth Amendment 

right to due process of law. 

THE LEGAL STANDARD 

When considering a motion to dismiss an indictment the Court assumes all of the facts 

alleged in the indictment as true and views all of the facts alleged in the indictment in the light 

most favorable to the government. United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999). 

This Court=s findings of fact must be accepted as true unless they can be shown to be clearly 

erroneous. United States v. Burke, 425 F.3d 400, 412 (7th Cir. 2005). Rule 7(c)(1) of the 

Federal Rules of Criminal Procedure requires that an indictment Abe a plain, concise, and definite 

written statement of the essential facts constituting the offense charged.@ Fed. R. Crim. P. 7(c)(1). 

AThe true test of the sufficiency of the indictment is whether it contains the elements of the offense 

intended to be charged.@ United States v. Senak, 477 F.2d 304, 306 (7th Cir. 1973) (quoting 

Hagner v. United States, 285 U.S. 427, 431 (1932)) (internal quotation marks omitted). AWhen 

grading an indictment=s sufficiency, [a court must] look to see whether the document sketches out 

the elements of the crime and the nature of the charge so that the defendant can prepare a defense 

and plead double jeopardy in any future prosecution for the same offense.@ United States v. 

Guerrier, 669 F.3d 1, 3 (1st Cir. 2011); see also United States v. Locklear, 97 F.3d 196, 199 (7th 

Cir. 1996) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)) (internal quotation marks 

omitted) (AIn general terms, an indictment is sufficient if it first, contains the elements of the 

charged offense and fairly informs a defendant of the charge against him which he must defend, 

and second, enables him to plead double jeopardy as a bar to a future prosecution.@). 
58 

The defendant bears the burden of proving that the government=s conduct Ainterfered 

substantially with a witness=s free and unhampered choice to testify.@ United States v. Skilling, 

554 F.3d 529, 567 (5th Cir. 2009), vacated in part on other grounds, CU.S.C, 130 S. Ct. 2896 

(June 24, 2010). Even if the defendant can satisfy his burden of proving that the government 

substantially interfered with a witness=s decision to cooperate with the defendant, there can be no 

constitutional violation unless the defendant can also make some plausible showing that the 

witness=s testimony would have been both material and favorable to the defendant; in other words, 

that the defendant suffered prejudice as a result of the witness=s choice not to cooperate with the 

defendant. United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (A[R]espondent cannot 

establish a violation of his constitutional right to compulsory process merely by showing that [the 

government] deprived him of [witness=s] testimony. He must at least make some plausible 

showing of how their testimony would have been both material and favorable to his defense.@). 

This Court is empowered to dismiss an indictment when it violates the Constitution or laws 

of the United States, when there has been some constitutional error in the prosecution of the 

indictment, or subject to a motion pursuant to Rule 12(b) of the Federal Rules of Criminal 

Procedure. See DeLaurentis, 230 F.3d at 660B61 (AFederal Rule of Criminal Procedure 12(b)(2) 

authorizes dismissal of an indictment if its allegations do not suffice to charge an offense, but such 

dismissals may not be predicated upon the insufficiency of the evidence to prove the indictment=s 

charges.@); Holloway, 74 F.3d at 253 (AFederal courts possess the power and duty to dismiss 

federal indictments obtained in violation of the Constitution or laws of the United States.@); United 

States v. Van Engel, 15 F.3d 623, 631-32 (7th Cir. 1993), abrogated by United States v. Canoy, 38 

F.3d 893 (7th Cir. 1994) (AA federal judge is not authorized to punish the misconduct of a 
59 

prosecutor by letting the defendant walk, unless the misconduct not only violated the defendant=s 

rights but also prejudiced his defense[.]@); Mills, 995 F.2d at 486 (AWe review indictments for 

constitutional error and prosecutorial misconduct.@); United States v. Calzada, 579 F.2d 1358, 

1363 (7th Cir. 1978) (emphasis supplied) (A[W]e cannot say that the district court erred in finding 

that the defendants= constitutional rights to compulsory process had been violated, nor that it 

abused its discretion in concluding that the only reasonable remedy for that violation was the 

dismissal of the indictment.@). Furthermore, the Court may dismiss an indictment on other 

grounds pursuant to its supervisory powers, such as when the government exhibits outrageous 

misconduct in prosecuting the indictment, causing prejudice to the defendant; such a dismissal is a 

prophylactic tool used to discourage future deliberate governmental impropriety. See United 

States v. Derrick, 163 F.3d 799, 807 (4th Cir. 1998) (A[A] court=s supervisory power cannot be 

exercised to dismiss indictments for government misconduct absent a showing of prejudice to the 

defendants.@); United States v. Samango, 607 F.2d 877, 884 (9th Cir. 1979) (quoting United States 

v. Owen, 580 F.2d 365, 367 (9th Cir. 1978)) (internal quotation marks omitted) (AUnder its 

inherent supervisory powers, a federal court is empowered to dismiss an indictment on the basis of 

governmental misconduct.@). 

ANALYSIS 

The Supreme Court of the United States Ahas had little occasion to discuss the contours of 

the Compulsory Process Clause.@ Penn. v. Ritchie, 480 U.S. 39, 55-56 (1987). Perhaps the most 

celebrated, in addition to the first, analysis of the Clause comes from a Virginia federal court in 

1807, in the course of the treason and misdemeanor trials of Aaron Burr. Chief Justice Marshall, 

who presided as the trial judge, ruled that Burr=s compulsory process rights under the Sixth 
60 

Amendment entitled him to serve a subpoena on President Jefferson requesting the production of 

allegedly incriminating evidence. United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (C.C.D. 

Va. 1807) (Marshall, C.J.). In ruling for Burr, Chief Justice Marshall declared the Compulsory 

Process Clause to be Asacred@ among the rights of criminal defendants. Id. (A[T]he right given by 

this article must be deemed sacred by courts, and the article should be so construed as to be 

something more than a dead letter.@). Despite the implications and the promise of the Burr

decision for the direction of federal criminal procedure, the Compulsory Process Clause 

languished and rarely was employed by the Court over the next 160 years. However, starting 

during the Warren Court and flourishing during the Burger Court, the Supreme Court began to 

articulate a number of the specific rights secured by this particular Clause of the Sixth 

Amendment. The Court has observed, A[o]ur cases establish, at a minimum, that criminal 

defendants have the right to the government=s assistance in compelling the attendance of favorable 

witnesses at trial and the right to put before a jury evidence that might influence the determination 

of guilt.@ Ritchie, 480 U.S. at 56. See, e.g., Chambers v. Mississippi, 410 U.S. 284 (1973); Cool 

v. United States, 409 U.S. 100 (1972) (per curiam); Webb v. Texas, 409 U.S. 95 (1972) (per 

curiam); Washington v. Texas, 388 U.S. 14 (1967). 

ATh[e] [Supreme] Court has never squarely held that the Compulsory Process Clause 

guarantees the right to discover the identity of witnesses, or to require the government to produce 

exculpatory evidence.@ Ritchie, 480 U.S. 39 at 56; but cf. Nixon, 418 U.S. at 709 (suggesting that 

the Clause may require the production of evidence). Rather, the Court has traditionally evaluated 

claims brought pursuant to the Sixth Amendment=s Compulsory Process Clause under the broader 

protections of the Due Process Clauses of the Fifth and Fourteenth Amendments. See 
61 

Valenzuela-Bernal, 458 U.S. at 872 (AHaving borrowed much of our reasoning with respect to the 

Compulsory Process Clause of the Sixth Amendment from cases involving the Due Process Clause 

of the Fifth Amendment, we have little difficulty holding that at least the same materiality 

requirement obtains with respect to a due process claim.@); see also United States v. Bagley, 473 

U.S. 667, 678, 682 (1985) (AThe constitutional error, if any, in this case was the Government=s 

failure to assist the defense by disclosing information that might have been helpful in conducting 

the cross-examination. . . . evidence is material only if there is a reasonable probability that, had 

the evidence been disclosed to the defense, the result of the proceeding would have been 

different.@); United States v. Agurs, 427 U.S. 97, 107 (1976) (AWe are not considering the scope of 

discovery. . . . We are dealing with the defendant=s right to a fair trial mandated by the Due Process 

Clause of the Fifth Amendment to the Constitution.@); Wardius v. Oregon, 412 U.S. 470, 472 

(1973) (AWe hold that the Due Process Clause of the Fourteenth Amendment forbids enforcement 

of alibi rules unless reciprocal discovery rights are given to criminal defendants.@); Brady v. 

Maryland, 373 U.S. 83, 87 (1963) (AWe now hold that the suppression by the prosecution of 

evidence favorable to an accused upon request violates due process where the evidence is material 

either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.@). 

Because the Court=s Fifth and Fourteenth Amendment jurisprudence addressing the fundamental 

fairness of trials establishes a clear framework for review, the Court has adopted a due process 

analysis for the purposes of Sixth Amendment claims. Ritchie, 480 U.S. 39 at 56. AAlthough we 

conclude that compulsory process provides no greater protections in this area than those afforded 

by due process, we need not decide today whether and how the guarantees of the Compulsory 

Process Clause differ from those of the Fourteenth Amendment.@ Id.
62 

A defendant=s right to present his own witnesses in establishing a defense is a fundamental 

aspect of due process of law and is strictly protected by the Fifth and Sixth Amendments to the 

United States Constitution. Washington, 388 U.S. at 19 (AThe right to offer the testimony of 

witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a 

defense, the right to present the defendant=s version of the facts as well as the prosecution=s to the 

jury so it may decide where the truth lies. Just as an accused has the right to confront the 

prosecution=s witnesses for the purpose of challenging their testimony he has the right to present 

his own witnesses to establish a defense. This right is a fundamental element of due process of 

law.@). This right encompasses a defendant=s Sixth Amendment right to compulsory process for 

obtaining witnesses in his favor. Id. at 19-23. AThe Supreme Court in Washington v. Texas held 

that the right to compulsory process guaranteed by the Sixth Amendment is a fundamental element 

of due process of law, and as such it should be interpreted broadly.@ Calzada, 579 F.2d at 1360 

(internal citation omitted) (emphasis supplied). 

I. Whether Marshal McPherson and Those Acting Under His Command 

Acted as Part of the Prosecution Team 

The threshold issue in this case is whether Marshal McPherson, or those acting under his 

command, can be deemed to have been part of the prosecution team in the Linder investigation. 

For if McPherson is not held to be a member of the prosecution team, then there is no 

constitutional violation, and Linder=s motion must fail. See United States v. Locascio, 6 F.3d 924, 

949 (2d Cir. 1993) (AEven assuming the reports= materiality, there is no evidence that the 

prosecution team in the instant case was aware of the reports that have subsequently come to light. 

. . .[therefore] we hold that the district court did not abuse its discretion in denying the motion for a 

new trial and the renewed motion for a new trial.@). 
63 

A prosecutor will be held responsible for the conduct (and misconduct) committed by 

members of the Aprosecution team,@ as that phrase is defined under federal law. The term 

Aprosecution team@ has been broadly construed, and it includes both investigative and 

prosecutorial personnel. See United States v. Morris, 80 F.3d 1151, 1170 (7th Cir. 1996) (the 

prosecution team is Athe team that investigated [the] case or participated in its prosecution@); 

Sargent v. Sec=y, Fla. Dep=t of Corrs., 480 F. App=x 523, 529 (11th Cir. 2012) (internal quotation 

marks omitted) (AThe prosecution team is defined as the prosecutor or anyone over whom he has 

authority, and includes both investigative and prosecutorial personnel.@); Avila v. Quarterman, 

560 F.3d 299, 307 (5th Cir. 2009) (same); United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 

1991) (same); United States v. Meros, 866 F.2d 1304, 1309 (11th Cir. 1989) (same); United States 

v. Antone, 603 F.2d 566, 569-70 (5th Cir. 1979) (same). AThe government is reasonably expected 

to have possession of evidence in the hands of investigators, who are part of the >prosecution 

team.=@ United States v. Gil, 297 F.3d 93, 106 (2d Cir. 2002). 

 AAn >arm of the prosecution= is any government agent or agency that investigates and 

provides information specifically aimed at prosecuting a particular accused.@ Perez v. United 

States, 502 F. Supp. 2d 301, 309 (N.D.N.Y. 2006); see also United States v. Stewart, 433 F.3d 273, 

298 (2d Cir. 2006) (citing Morell, 524 F.2d at 555) (internal citation omitted) (A[T]he propriety of 

imputing knowledge to the prosecution is determined by examining the specific circumstances of 

the person alleged to be an >arm of the prosecutor.= It does not turn on the status of the person with 

actual knowledge, such as a law enforcement officer, prosecutor or other government official. In 

other words, the relevant inquiry is what the person did, not who the person is.@); United States v. 

Trevino, 556 F.2d 1265, 1272 (5th Cir. 1977) (stating in dictum that the term Aarm of the 
64 

prosecution@ includes the prosecutor and closely connected investigative agencies); Morell, 524 

F.2d at 555 (holding that when Aa DEA agent who had kept a confidential file on an informant, the 

Government=s key witness . . . [and] participated actively in the investigation . . . [the court] 

deemed it fair to treat him as an >arm of the prosecutor=@). The United States Attorney=s Manual 

provides that: AMembers of the prosecution team include federal, state, and local law enforcement 

officers and other government officials participating in the investigation and prosecution of the 

criminal case against the defendant.@ U.S. Dep=t of Justice, U.S. Attorney=s Manual 

9-5.001(B)(2) (Oct. 1, 2006) (citing Kyles v. Whitley, 514 U.S. 419, 437 (1995)). 

Exactly who constitutes a member of the prosecution team is determined using a 

Acase-by-case analysis of the extent of interaction and cooperation between@ a potential member of 

the team and the prosecutor. Avila, 560 F.3d at 308. Whether someone is part of the prosecution 

team depends on the degree of interaction between the prosecutor and the agency or individual. 

See Locascio, 6 F.3d at 949 (holding that the reports made by FBI agents in the course of 

investigations apparently unrelated to the defendants= prosecutions should not be imputed to the 

prosecution); Pina v. Henderson, 752 F.2d 47, 49 (2d Cir. 1985) (holding that a prosecutor=s 

constructive knowledge did not extend to a parole officer who Adid not work in conjunction with 

either the police or the prosecutor@ but did extend to a police officer who was the investigating 

officer on the case). 

The prosecution team in any given case may have many members with diverse duties. At 

its core, members of the team perform investigative duties and make strategic decisions about the 

prosecution of the case. See, e.g., Kyles, 514 U.S. at 438 (police investigator); Giglio v. United 

States, 405 U.S. 150, 154 (1972) (fellow prosecutor). The prosecution team may also include 
65 

individuals who are not strategic decision-makers, including members of the Marshals Service 

who perform tasks at the prosecution=s request. See United States v. Bin Laden, 397 F. Supp. 2d 

465, 481 (S.D.N.Y. 2005) (finding that agents of the United States Marshals Service=s Witness 

Security Program were members of the prosecution team because, at the prosecutors= request, the 

agents installed and continuously operated video-teleconference equipment Ain order to further the 

Government=s investigation.@). Members of the prosecution team may include testifying police 

officers and federal agents who submit to the directions of the prosecutor and aid the Government 

in its investigation. See Pina, 752 F.2d at 47; Bin Laden, 397 F. Supp. 2d at 481. Under the 

totality of the circumstances, the more involved an individual is with the prosecutor, the more 

likely he is a team member. United States v. Stewart, 323 F. Supp. 2d 606, 616-18 (S.D.N.Y. 

2004), aff=d, 433 F.3d 273 (2d Cir. 2006). Among many others, these circumstances include 

whether the individual actively investigates the case, acts under the direction of the prosecutor, or 

aids the prosecution in crafting trial strategy. See United States v. Diaz, 176 F.3d 52, 106B07 (2d 

Cir. 1999). Witness interference or intimidation committed on behalf of the government, such as 

by law enforcement agents or government administrators, may be imputed to the prosecution and 

the government actors held to be members of the prosecution team. United States v. Lorefice, 192 

F.3d 647, 651-52 (7th Cir. 1999) (citing United States ex rel. Smith v. Fairman, 769 F.2d 386, 391 

(7th Cir. 1985)). A[F]rom a legal standpoint, misconduct by the investigating law enforcement 

agents is indistinguishable from misconduct by the prosecuting attorneys.@ Lorefice, 192 F.3d at 

651-52. 

AThe government cannot compartmentalize the Department of Justice and permit it to bring 

a charge affecting a government employee in the [Marshals Service] and use him as its principal 
66 

witness, but deny having@ possession of Marshals Service records, files, and other evidence. 

United States v. Deutsch, 475 F.2d 55, 57 (5th Cir. 1973), overruled on other grounds by United 

States v. Henry, 749 F.2d 203, 206 n.2 (5th Cir. 1984); see, e.g., United States v. Sanchez, 813 F. 

Supp. 241, 247 (S.D.N.Y. 1993), aff'd on other grounds, 35 F.3d 673 (2d Cir. 1994) (imputing to 

the prosecutor knowledge of the perjury of local police officers who had been deputized as federal 

agents and worked as part of a joint task force investigating a narcotics conspiracy of which the 

defendant was charged as a member). Furthermore, knowledge of evidence or anything held by 

any federal agency is imputed to the prosecutors if it lies within an agency that is Apart of the team 

that investigated [the] case or participated in its prosecution.@ Morris, 80 F.3d at 1169-70; see 

also United States v. ZunoBArce, 44 F.3d 1420, 1427 (9th Cir. 1995) (The Aprosecutor is deemed to 

have knowledge of and access to anything in the custody or control of any federal agency 

participating in the same investigation of the defendant.@); United States v. Heller, 830 F.2d 150, 

153 n.3 (11th Cir. 1987) (holding that the conduct of a government actor who threatens a witness 

with potential prosecution based on his relationship with the defendant in an attempt to Ascare@ or 

Acontrol@ the witness will be imputed to the prosecution for determining whether the defendant=s 

Fifth Amendment right to due process of law has been violated). 

In United States v. Vole, 435 F.2d 774, 778 (7th Cir. 1970), the Seventh Circuit had the 

occasion to consider a situation in which the criminal defendants claimed that the United States 

Marshal was preventing them from accessing certain witnesses. AAt the beginning of the trial, 

Vole moved on behalf of all defendants for an order to the United States Marshal permitting them 

access to co-defendants and witnesses in the custody of the government . . . contend[ing that] his 

defense counsel was prevented by the Marshal from interviewing such witnesses.@ Id. The 
67 

Seventh Circuit remanded the case to the district court on different grounds, but it noted that it 

Awish[ed] to make it clear that witnesses are the special property of neither party[.]@ Id. (citing 

Gregory v. United States, 369 F.2d 185, 188 (D.C. Cir. 1966); Callahan v. United States, 371 F.2d 

658, 660 (9th Cir. 1970)). The court held that on remand, Athe district court should facilitate 

access to [these witnesses] before trial whenever it is requested@ by the defense. Vole, 435 F.2d at 

778. The Vole court cited two cases to support its holding with respect to the issue of the United 

States Marshal preventing access to witnesses, both of which deal with the constitutional 

violations that can arise under the Fifth Amendment=s Due Process Clause or the Sixth 

Amendment=s Compulsory Process Clause when the defendant is prevented by the government 

from accessing witnesses. Id. 

The first case is the D.C. Circuit=s seminal opinion in Gregory, 369 F.2d at 188, in which 

the court stated that Athe defendant was denied that opportunity which, not only the statute, but 

elemental fairness and due process required that he have.@ (emphasis supplied). The second case 

cited by the Vole court is Callahan, 371 F.2d at 660, in which the court held that Aappellant=s 

counsel requested that the indictment be dismissed on the grounds that the defendant=s rights under 

the 5th and 6th Amendments of the United States Constitution had been violated by actions of the 

United States Attorney and the witnesses subpoenaed by the Government, counsel for the 

appellant asserted, >these persons were advised that they need not talk to anyone about this case, 

and that such advice was in such form that it was understood by at least one of these persons to 

mean that he could not talk to me= . . . . No evidence was presented in support of the assertions. . . 

.[therefore] [a]ppellant=s specification that the District Court erred in failing to dismiss the 

indictment is without merit.@ Callahan is strikingly similar to the facts of the present case, as 
68 

there the defendant claimed that the United States Attorney and the United States Marshal advised 

witnesses not to communicate with defense counsel. Id. 

In United States v. Wilson, 237 F.3d 827, 832 (7th Cir. 2001), another Seventh Circuit case 

concerning the United States Marshals Service, the court held that when members of the Marshals 

Service discover any information that might plausibly be helpful to the defense, the Marshals 

Service becomes a part of the prosecution team and is acting as an arm of the government. (AWe 

agree with the defendants that such imputation is proper in these circumstances; it is impossible to 

say in good conscience that the U.S. Marshal=s Service was not >part of the team= that was 

participating in the prosecution, even if the role of the Marshal=s Service was to keep the 

defendants in custody rather than to go out on the streets and collect evidence.@). The Seventh 

Circuit=s decisions in Vole, 435 F.2d at 778, and Wilson, 237 F.3d at 832, may be read together for 

the proposition that in the Seventh Circuit the Marshals Service becomes part of the prosecution 

team when it is in possession of evidence favorable to the defendant or when it obstructs the 

defendant=s access to witnesses, and that therefore the Marshals Service may be liable for violating 

a criminal defendant=s Fifth Amendment right to due process of law or Sixth Amendment right to 

compulsory process of witnesses in his favor. 

Marshal McPherson first began investigating the Linder excessive force incident after 

reporting it to potential members of the prosecution team who advised him that he should move 

forward with an interview of Linder. McPherson directed deputies to conduct the victim 

interviews, take photographs of the victim, and write reports regarding the investigation. The 

Marshal also provided the OIG investigator with his employees whenever the Investigator 

requested them for interview. He complied with the Investigator=s request for seizure of the 
69 

Blackberry smart phone and computer from Linder and he complied with each request for 

information or help throughout the investigation. It was clear from the Marshal=s testimony at the 

hearing that his motivation was in good faith and he acted as a professional seeking to fulfill his 

obligations as the senior law enforcement officer facing a unique set of circumstances. Marshal 

McPherson sought regular legal advice from Office of General Counsel to verify his actions and to 

seek guidance on how to address each of the concerns facing him in an effort to maintain efficient 

operations at the Marshals Service. 

Although his motivation was clear, in analyzing whether he was a member of the 

prosecution team, the Court must not look to his motives but rather to his actions. While 

attempting to be cooperative and helpful, and by following the directions of the OGC, and the 

directions of the OIG Investigator, the Marshal=s actions were relied upon significantly by the 

investigative team to build its case and to prosecute the defendant. In fact, a significant portion of 

evidence presented at the hearing was evidence that was obtained in part due to the Marshal=s 

support, whether that was in the form of facilitating interviews, gathering evidence or directing 

others to provide investigative steps to the Investigator. The Marshal, in his efforts to do the right 

thing under difficult circumstances became a part of the prosecution team due to his significant 

involvement in the gathering of evidence to be used by the team. Agent Shirley essentially used 

the Marshal as an arm of the prosecution to aid him in his work. 

Specifically, Marshal McPherson, or another Marshals Service employee under his 

control, twice sent DUSM Banos and Inspector Walenda out to interview and photograph Solis, 

the alleged victim of the charges contained in Count I of the Indictment against Linder. On July 

13, 2010, after conducting their first interview with Solis and taking a photograph of him, Banos 
70 

and Walenda returned to the District office and reported back to McPherson and Chief O=Malley. 

O=Malley testified that when he discovered that Walenda and Banos had interviewed Solis and 

taken a single photograph, he sent them back out to Solis=s residence a second time because the 

first interview was conducted poorly and the photograph was insufficient. 

Although McPherson does not recall sending Banos or Walenda to take photographs of 

Solis, the alleged victim, Walenda testified that McPherson had, in fact, instructed him to go back 

out a second time and take more photographs. During the second interview, on July 14, 2010, 

Banos took 11 additional photographs of Solis. After they conducted the second interview of 

Solis, Walenda and Banos again reported back to McPherson. The Report of Interview prepared 

by Walenda and the photographs taken by Banos were eventually given to Agent Shirley of the 

OIG, as well as the Assistant United States Attorneys who are prosecuting this case. 

On August 25, 2010, at Shirley=s direction, Banos sent an e-mail to Shirley that contained a 

private text message conversation between himself and Linder. Again, on August 30, 2010, at 

Shirley=s direction, Banos sent three e-mails to Shirley containing the eleven photographs he had 

taken of Solis during the course of the second interview; photographs which were taken at the 

direction of Marshals Service management. 

McPherson also personally and actively interviewed Linder on at least two occasions and 

those interviews became part of Shirley=s case. On July 12, 2010, the day that the Marshals 

Service management learned of the allegation, McPherson summoned Linder into his office for the 

purpose of questioning him after he was informed that it was appropriate to do so. Also present 

were O=Malley, Supervisory Inspector Farrell, and Supervisory Deputy United States Marshal 

Block. Although Ferrell testified that he expressed concern that Linder should be informed of his 
71 

rights, all of those who testified stated that he was not. His statements to the Marshals Service 

management in the room that day were provided to Shirley for his investigation. The United States 

Marshals Service Policy Directives state that in a misconduct investigation, the Marshals Service 

employee under investigation has certain rights, including the right to notice and the right to 

certain warnings. The interview, however, was conducted after the Marshal verified that it was 

appropriate to conduct the interview and it was provided to Shirley in spite of the lack of any 

warnings issued to Linder. 

Three days later, on July 15, 2010, McPherson confronted Linder a second time. This 

meeting occurred at the headquarters of the GLRFTF, where Linder worked. The meeting 

occurred in the presence of Marshals Service management, as well as Linder=s supervisors. 

McPherson, O=Malley, Farrell, Block, Grunwald, and Decker were all present at the meeting. The 

purpose of this meeting was to discuss Linder=s placement, and afterwards McPherson reassigned 

Linder from the GLRFTF back to the District office. The statements attributable to Linder were 

shared with the OIG agents investigating this case, as well as the Assistant United States Attorneys 

who are prosecuting it. McPherson also agreed to participate in the ruse to bring Linder to the 

OIG agents Shirley and Semmerling in an effort to interview him and obtain a confession. The 

Marshal followed Shirley=s directions to lead Linder to a room where Shirley and Semmerling 

were surreptitiously waiting for him. Shirley devised this scheme and gave McPherson special 

instructions as to how Shirley wanted it carried out. McPherson followed all of Shirley=s 

instructions. The Government even concedes that AMcPherson complied with SSA Shirley=s 

request.@ (Doc. 87, Gov.=s Post-Hr=g Br. at 8.) This ruse was an effort by Shirley to get Linder in 

an interview situation where he would be off guard and would possibly confess to the allegations 
72 

against him. The Marshal=s role unfortunately had a manipulative effect in that Linder would 

naturally follow the Marshal=s directions to appear at the time and place of a requested meeting, 

which he did, only to learn that he was being interviewed by Shirley and investigators and not 

having a voluntary meeting with his boss. (R. 48, Def.=s Pre-Hr=g Br. at 8.) The Marshal in this 

way played an active role in the investigation. 

In less direct ways, the Marshal also facilitated the investigation by helping to coordinate 

interviews. Shirley, as Aa courtesy@ gave McPherson notice when he wanted to interview a certain 

individual under McPherson=s command before he would meet with him. Yet, Shirley=s notices 

were less notifications of courtesy than they were requirements that the Marshal cooperate in his 

investigation by directing exactly how Shirley wanted to approach any specific individual. For 

example, Shirley sent McPherson an e-mail, stating: AIf you decide that you would like to notify 

the individuals in question of the pending interview, I would ask they be notified separately and 

not informed of any other individual who may be interviewed.@ Shirley gave McPherson special 

instructions about his interview with LinderCinstructions that called for deception, duplicity, and 

active participation in the investigation. For all other Marshals Service personnel that Shirley 

wanted to interview, he would simply provide a time to McPherson so that McPherson could 

ensure that he had enough resources available to cover the times that Shirley wanted to speak with 

a witness employed by the United States Marshals Service. Shirley contacted McPherson for this 

purpose on an unknown number of occasions. Shirley granted McPherson the discretion to tell all 

of his subordinates, except Linder, that the purpose of these meetings was to be interviewed by 

OIG agents. Shirley testified that he had a Alarge number@ of telephone calls and Aseveral@

meetings on Amultiple occasions@ with the Marshals Service in the District. Yet, where Shirley 
73 

may have been cooperative with the Marshal about accommodating witnesses under McPherson=s 

control, the behavior was drastically different when approaching members of the GLRFTF - the 

coworkers of Linder. 

Shirley testified that he informed the Marshal that there was tension and division within the 

Marshals Service in the District. Indeed, Shirley brought this matter to McPherson=s attention Aa 

few times.@ Shirley complained to McPherson that he was Anot having any success@ securing 

voluntary interviews from Marshals Service personnel under McPherson=s command. When 

Shirley=s attempts to interview Government witnesses did not get any easier, he summoned the 

prosecutors and they asked McPherson for a meeting. McPherson agreed to meet with Shirley 

and the Assistant United States Attorneys, Cha and Blumberg, in his office around May of 2011, 

which was right in the middle of the OIG=s investigation of Linder. Thereafter, AUSA Cha and 

Blumberg, along with Agent Shirley, met with McPherson and discussed the way in which they 

believed potential Government witnesses were allegedly being intimidated and how best to 

improve the situation. 

In an effort to separate themselves from the Marshal, the Government argues that 

McPherson knew nothing about matters involving witnesses. (Doc. 87, Gov.=s Post-Hr=g Br. at 

5-10.) This requested meeting belies that position. The prosecutors and the investigative agents 

personally petitioned McPherson to intervene regarding the apparent difficulties they were having 

with McPherson=s subordinates who were witnesses to the alleged crime. The only reason to meet 

with the Marshal was to rally his support in their efforts to get certain potential witnesses to 

cooperate with them. 
74 

In addition, when the OIG wanted to search Linder=s Blackberry for evidence, Shirley 

instructed McPherson to seize the Blackberry from Linder and deliver it to him. McPherson 

delegated this task to O=Malley and Supervisor Robinson. McPherson testified that he knew 

Linder=s Blackberry contained evidence that could be used against Linder in a criminal case. The 

Marshals Service thus acted on behalf of, and in concert with, the OIG by obtaining the Blackberry 

and giving it to OIG agents. 

Also, following the directions of the Government, the Marshal interviewed Linder. It is 

undisputed that during that interview, Linder was not provided with any statement of his rights. 

Both McPherson and O=Malley confirmed to the Court at the evidentiary hearing on this motion 

that no one at any time during the course of the 18-month investigation of Linder administered 

either the Garrity or the Kalkines warnings to him. (Tr. at 209, 317) (citing Garrity v. New 

Jersey, 385 U.S. 493, 500 (1967) (holding that where police officers being investigated were given 

the choice to either incriminate themselves or to forfeit their jobs under a New Jersey statute 

dealing with forfeiture of office or employment tenure, as well as pension rights of persons 

refusing to testify on the grounds of self-incrimination, and the officers chose to make confessions, 

the confessions were not voluntary, but were coerced, and the Fourteenth Amendment prohibited 

the use of the officers=s confessions in any subsequent criminal prosecutions of the officers in State 

court); Kalkine v. United States, 473 F.2d 1391, 1392-93 (Ct. Cl. 1973) (holding that a Customs 

Bureau employee could not be discharged from his post for his failure to answer questions by the 

Bureau concerning his finances and payments from importers, where, although there was a 

pending criminal investigation of the Customs Bureau employee, he was not advised that his 

answers or their fruits could not be used in any criminal prosecution that might be brought against 
75 

him)). AIn recent years the courts have given more precise content to the obligations of a public 

employee to answer his employer=s work-related questions where, as here, there is a substantial 

risk that the employee may be subject to prosecution for actions connected with the subject of 

management=s inquiry. It is now settled that the individual cannot be discharged simply because 

he invokes his Fifth Amendment privilege against self-incrimination in refusing to respond.@ 

Kalkine, 473 F.2d at 1392-93 (citing Gardner v. Broderick, 392 U.S. 273, 278 (1968); Uniformed 

Sanitation Men Ass’n, Inc. v. Comm=r of Sanitation, 392 U.S. 280, 284-85 (1968) (Uniformed 

Sanitation I)). 

The Garrity warning, derived from the United States Supreme Court=s decision in Garrity 

v. New Jersey, 385 U.S. at 500, is an advisement of rights, usually administered by State or local 

government investigators, to an employee of the State or a local government who is the subject of 

an internal investigation or disciplinary proceeding. Id. at 499. The warning finds its basis in the 

Fifth Amendment to the United States Constitution, which declares that the government cannot 

compel a person to be a witness against himself, a protection that was incorporated against the 

States via the Fourteenth Amendment in Malloy v. Hogan, 378 U.S. 1, 6 (1964) (AWe hold today 

that the Fifth Amendment=s exception from compulsory self-incrimination is also protected by the 

Fourteenth Amendment against abridgment by the States.@). Garrity, 385 U.S. at 497; see also 

U.S. Const., amend. V (ANo person . . . shall be compelled in any criminal case to be a witness 

against himself.@). 

The Court identified the question posed by Garrity as Awhether a State, contrary to the 

requirement of the Fourteenth Amendment, can use the threat of discharge to secure incriminatory 

evidence against an employee.@ Garrity, 385 U.S. at 499. The Garrity Court answered the 
76 

question in the negative, holding that it presented a constitutional infirmity and explicitly stating 

its holding that Athe protection of the individual under the Fourteenth Amendment against coerced 

statements prohibits use in subsequent criminal proceedings of statements obtained under threat of 

removal from office, and that it extends to all, whether they are policemen or other member of our 

body politic.@ Id. at 500. The Garrity warning advises employees who are under investigation 

or subject to disciplinary measures of their criminal and administrative liabilities for any statement 

that they may choose to make, and also advises the employees of their right to remain silent on any 

issue that has the potential of implicating or exposing them to criminal liability. Id. at 499-500. 

By invoking Garrity, an employee raises his right against compulsory self-incrimination, and any 

statement given under threat of discipline or discharge made after the employee=s invocation of 

Garrity may only be used for internal investigation or disciplinary proceeding purposes and not for 

the purpose of criminal prosecution. Id. at 500. The Supreme Court stated in Garrity, 385 U.S. 

at 497, that A[t]he option to lose their means of livelihood or to pay the penalty of 

self-incrimination is the antithesis of free choice to speak out or to remain silent.@ 

The Kalkine warning, derived from the United States Court of Claims=s decision in Kalkine 

v. United States, 473 F.2d at 1392-93, is a similar advisement of rights to those provided by 

Garrity, however, instead of implicating State or local government employees, it is usually 

administered by United States federal agents to federal government employees and contractors in 

internal investigations and disciplinary proceedings, frequently when it is suspected that a crime 

has been committed. The Kalkine warning compels United States employees to make statements 

or else face disciplinary action, up to and including dismissal. Id. (citing Gardner, 392 U.S. at 

278; Uniformed Sanitation I, 392 U.S. at 284-85; Uniformed Sanitation Men Ass’n v. Comm=r of 
77 

Sanitation, 426 F.2d 619, 626 (2d Cir. 1970) (Friendly, J.) (Uniformed Sanitation II)). However, 

the Kalkine warning provides federal employees who are suspected of criminal conduct with 

immunity for their statements. Kalkine, 473 F.2d at 1393 (citing Garrity, 385 U.S. at 500). In 

the absence of a federal employer=s administration to an employee of the Garrity warning, a 

federal employer may not discipline, discharge, or remove an employee from his federal 

employment based on a charge that the employee failed to cooperate in the federal employer=s 

investigation or proceeding when such investigations or proceedings may possibly expose the 

employee to criminal liability. Id. 

Under Kalkine, a federal employee can be subjected to A[p]roper proceedings . . . in which 

the employee is asked only pertinent questions about the performance of his duties and is duly 

advised of his options and the consequences of his choice. . . . To require a public body to continue 

to keep an officer or employee who refuses to answer pertinent questions concerning his official 

conduct, although assured of protection against use of his answers or their fruits in any criminal 

prosecution, would push the constitutional protection beyond its language, its history or any 

conceivable purpose of the framers of the Bill of Rights.@ Kalkine, 200 Ct. Cl. at 1393 (quoting 

Uniformed Sanitation II, 426 F.2d 626-27) (Friendly, J.) (internal quotation marks omitted)). 

Thus, if a federal employee is granted immunity from prosecution for their testimony, yet 

nevertheless chooses not to answer the government=s questions, the government possesses the 

authority to discipline the employee for his refusal to answer the questions asked. Id. The United 

States Court of Claims (now the United States Court of Federal Claims (trial level jurisdiction) and 

the United States Court of Appeals for the Federal Circuit (appellate jurisdiction)) (see Federal 

Courts Administration Act of 1992, Court of Federal Claims Technical and Procedural 
78 

Improvements Act of 1992, PL 102-572, Oct. 29, 1992, 106 Stat 4506), stated in Kalkine, 473 F.2d 

at 1393, that Aa governmental employer is not wholly barred from insisting that relevant 

information be given; the public servant can be removed for not replying if he is adequately 

informed both that he is subject to discharge for not answering and that his replies (and their fruits) 

cannot be employed against him in a criminal case.” 

Under Garrity and Kalkine, government employees can be compelled, by threat of adverse 

employment action up to and including termination, to answer questions posed by their 

government employers in the course of investigations or proceedings, and in turn the employees 

are immunized from future criminal prosecution for any incriminating statements they may make 

in the course of answering their government employer=s questions. See Garrity, 385 U.S. at 500; 

Kalkine, 473 F.2d at 1393; see also Chavez v. Martinez, 538 U.S. 760, 768 (2003) (AWe have also 

recognized that governments may penalize public employees and government contractors (with 

the loss of their jobs or government contracts) to induce them to respond to inquiries, so long as the 

answers elicited (and their fruits) are immunized from use in any criminal case against the 

speaker.@); Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977) (APublic employees may 

constitutionally be discharged for refusing to answer potentially incriminating questions 

concerning their official duties if they have not been required to surrender their constitutional 

immunity@ against later use of their statements in criminal proceedings.); Lefkowitz v. Turley, 414 

U.S. 70, 78-79 (1973) (citing Kastigar v. United States, 406 U.S. 441 (1972)) (The Fifth 

Amendment permits a witness to refuse to answer any question asked of him Aunless and until he is 

protected at least against the use of his compelled answers and evidence derived therefrom in any 

subsequent criminal case in which he is a defendant. . . .[E]mployees of the State do not forfeit 
79 

their constitutional privilege and [ ] they may be compelled to respond to questions about the 

performance of their duties but only if their answers cannot be used against them in subsequent 

criminal prosecutions.@); Gardner, 392 U.S. at 278 (internal citation omitted) (AIf appellant, a 

policeman, had refused to answer questions specifically, directly, and narrowly relating to the 

performance of his official duties, without being required to waive his immunity with respect to 

the use of his answers or the fruits thereof in a criminal prosecution of himself, the privilege 

against self-incrimination would not have been a bar to his dismissal.@); Uniformed Sanitation I, 

392 U.S. at 285 (A[P]etitioners, being public employees, subject themselves to dismissal if they 

refuse to account for their performance of their public trust, after proper proceedings, which do not 

involve an attempt to coerce them to relinquish their constitutional rights.@); United States v. 

Moten, 551 F.3d 763, 766 (8th Cir. 2008) (AThe Fifth Amendment privilege against 

self-incrimination extends to statements a government employee is compelled to make under the 

threat of removal from public office.@); United States v. Vangates, 287 F.3d 1315, 1320-21 (11th 

Cir. 2002) (internal citations and quotation marks omitted) (AThus, a public employee may not be 

coerced into surrendering his Fifth Amendment privilege by threat of being fired or subjected to 

other sanctions, and cannot be forced to choose between self-incrimination or job forfeiture. 

Indeed, the protection against coerced statements prohibits use in subsequent criminal proceedings 

of statements obtained under threat of removal from office ... The state, of course, can compel a 

public employee to answer questions in a formal or informal proceeding by granting that employee 

immunity from future criminal prosecution based on the answers given.@); Riggins v. Walter, 279 

F.3d 422, 431 (7th Cir. 1995) (AIn contrast, this circuit requires that before taking disciplinary 

action, a public employer must inform the employee that any compelled statements could not be 
80 

used in criminal proceedings.@); Hester v. City of Milledgeville, 777 F.2d 1492, 1495 (11th Cir. 

1985) (A[A] governmental unit which requires an employee to make potentially incriminating 

statements may not burden the employee=s [Fifth Amendment] right to exercise the privilege in a 

later criminal proceeding by threatening to discipline or discharge the employee if he or she 

refuses to waive it.@); Gulden v. McCorkle, 680 F.2d 1070, 1075 (5th Cir. 1982) (citing Garrity, 

385 U.S. at 500) (AAn employee who is compelled to answer questions (but who is not compelled 

to waive immunity is protected by Garrity from subsequent use of those answers in a criminal 

prosecution. It is the very fact that the testimony was compelled which prevents its use in 

subsequent proceedings, not any affirmative tender of immunity.@); United States v. Devitt, 499 

F.2d 135, 141 (7th Cir. 1974) (citing Garrity, 385 U.S. at 500) (ANor may disciplinary action be 

taken against the witness for his refusal to testify, unless he is first advised that, consistent with the 

holding in Garrity, evidence obtained as a result of his testimony will not be used against him in 

subsequent criminal proceedings.@). 

The purpose of the Garrity and Kalkine warnings are to ensure that government employees=

constitutional rights, particularly their Fifth Amendment right against compelled 

self-incrimination, are preserved and protected, while simultaneously helping State, local, and 

federal employers effectively pursue and conduct internal or administrative investigations and 

carry out the functions of government. These two warnings are designed to strike a balance 

between the Fifth Amendment privilege against self-incrimination by government employees and 

the government=s interest in obtaining information necessary to the advancement of governmental 

functions. Turley, 414 U.S. at 81. The Garrity and Kalkine warnings Aultimately rest on a 

reconciliation of the well-recognized policies behind the privilege of self-incrimination and the 
81 

need of the State, as well as the Federal Government, to obtain information to assure the effective 

functioning of government.@ Id. Contained within the rationales of Garrity and Kalkine is the 

proposition that government employees should not be put to the Hobson=s choice of deciding 

between self-incrimination and the forfeiture of their employment. 

The Marshal, who sought advice during the first weeks of his position from both the OGC 

and the Government was not provided with any guidance on how to approach Linder with an eye 

to preserving his rights in light of Garrity and Kalkine. As such, by following the directions of 

the Government, the warnings were not provided to Linder. 

All of these actions that aided the OIG investigation, took on a more significant light when 

the Marshal followed the directions of the OGC and sent out e-mails to his staff regarding how 

they must interact with the investigators and with defense counsel. As is discussed more fully 

below, e-mails were sent from the Marshal=s office regarding Aspecific rules that must be adhered 

to@ by Marshals Service personnel in their interactions with Linder, the defense team, and the 

Government. In the first e-mail, which was sent to all Marshals Service personnel and employees 

in the District, McPherson instructed that A[a]ny contact with prosecutors and investigators 

involved in the case must be handled in a polite, professional, and appropriate manner.@ By 

contrast, the e-mail instructed the same personnel to not discuss the case with Linder or anyone 

else except as authorized or as a matter of official duty. The e-mail further instructed that 

Marshals Service employees must limit their personal contact with Linder. In addition, 

McPherson ordered that all Marshals Service employees were not to discuss the case with Linder=s 

attorneys or associates except after notifying management and receiving authorization. Assistant 

Chief McFarden sent a second e-mail to all Marshals Service personnel in the District. The 
82 

second e-mail attached potential disciplinary sanctions and criminal offenses for violation of the 

Marshal=s Aspecific rules.@ McFarden attached to the second e-mail a Table of Marshals Service 

and Department of Justice Offenses. Several witnesses testified at the evidentiary hearing that the 

e-mails intimidated them not to speak with the defense. This sort of witness intimidation 

committed on behalf of the Government may be imputed to the prosecution and the government 

actors held to be members of the prosecution team. 

II. Whether Linder=s Constitutional Rights Were Violated and Whether He 

 Consequently Suffered Prejudice 

Threats or intimidation made by the government that dissuade a potential defense witness 

from testifying constitute a violation of the defendant=s Fifth Amendment right to due process of 

law and his Sixth Amendment right to compulsory process for obtaining witnesses in his favor. 

Webb, 409 U.S. at 98. The right to offer testimony of a witness and compel their attendance is 

commensurate with the right to present evidence and a defense to a jury. Id. AJust as the accused 

has the right to confront the prosecution=s witness for the purposes of challenging their testimony, 

he has the right to present his own witnesses to establish a defense.@ Id.; see also United States v. 

White, 454 F.2d 435, 438-39 (7th Cir. 1971) (citing Gregory, 369 F.2d at 188) (AWhile it is true 

that witnesses to a crime are the property of neither the prosecution nor the defense and that both 

sides have an equal right and should have an equal opportunity to interview them,@ an indictment 

may be dismissed upon Aa clear showing that the government instructed the witness not to 

cooperate with the defendant.@). 

AThe importance to a litigant of interviewing potential witnesses is undeniable. In 

particular, in criminal cases, where a defendant=s very liberty is at stake, such interviews are 

especially crucial. Thus it is that one of the first things responsible counsel does in preparing a 
83 

case is to seek to interview those witnesses involved in the litigation.@ United States v. Fischel, 

686 F.2d 1082, 1092 (5th Cir. 1982). The constitutional right of a criminal defendant to call 

witnesses in his defense requires that they are free to testify without fear of reprisal or retaliation 

from the government. Skilling, 554 F.3d at 567; United States v. Blackwell, 694 F.2d 1325, 1334 

(D.C. Cir. 1982). AA defendant has the right to formulate his defense uninhibited by government 

conduct that, in effect, prevents him from interviewing witnesses who may be involved and from 

determining whether he will subpoena and call them in his defense.@ United States v. Tsutagawa, 

500 F.2d 420, 423 (9th Cir. 1974). As the Supreme Court has observed, Athe desirability of 

calling John Doe as a witness, or at least interviewing him in preparation for trial [is] a matter for 

the accused rather than the government to decide.@ Rovario v. United States, 353 U.S. 53, 64 

(1957). 

Government interferences generally occur when agents of the government instruct a 

witness not to speak with the defense or otherwise artificially restrict the defense=s access to a 

witness. See United States v. Agostino, 132 F.3d 1183, 1192 (7th Cir. 1997) (citing White, 454 

F.2d at 439; United States v. DeRobertis, 766 F.2d 270, 274 (7th Cir. 1985)). AIt is well-settled 

that substantial government interference with a defense witness=s free and unhampered choice to 

testify violates the defendant=s due process rights.@ Newell v. Hanks, 283 F.3d 827, 837 (7th Cir. 

2002) (citing United States v. Vavages, 151 F.3d 1185, 1191 (9th Cir. 1998) (the prosecutor 

substantially interfered with a witness=s decision whether to testify where he threatened to 

withdraw the witness=s plea agreement in her own unrelated criminal prosecution if she testified in 

support of the defendant=s alibi); Freeman v. Georgia, 599 F.2d 65, 69 (5th Cir. 1979) (a police 

detective who concealed the whereabouts of a witness committed a due process violation); Lockett 
84 

v. Blackburn, 571 F.2d 309, 314 (5th Cir. 1978) (where the prosecutor sent the witnesses out of 

State before trial he violated the defendant=s right to due process); Morrison, 535 F.2d at 

225-28 (where the prosecutor repeatedly warned and intimidated a prospective defense witness 

about the possibility of perjury charges if she testified falsely, the defendant=s right to due process 

was violated)); accord Burke, 425 F.3d at 411; Skilling, 554 F.3d at 567 (quoting United States v. 

Thompson, 130 F.3d 676, 686 (5th Cir. 1997)); United States v. Roach, 502 F.3d 425, 437 (6th Cir. 

2007) (citing United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995)). 

To challenge the government=s conduct on Sixth Amendment or due process grounds for 

witness interference, the defendant is required to make a Aclear showing@ that the government 

instructed the witness not to cooperate with the defense. Roach, 502 F.3d at 437. With respect 

to interviewing witnesses Aour constitutional notions of fair play and due process dictate that 

defense counsel be free from obstruction, whether it comes from the prosecutor in the case or from 

a state official or another state action under color of law.@ Int=l Bus. Machs. Corp. v. Edelstein, 526 

F.2d 37, 44 (2nd Cir. 1975). Government interference with potential defense witnesses requires 

dismissal of an indictment where a substantial right of the defendant has been jeopardized, such as 

the right to due process of law secured by the Fifth Amendment or the right to compulsory process 

of defense witnesses secured by the Sixth Amendment. United States v. Wilson, 715 F.2d 1164, 

1169 (7th Cir. 1983). 

A defendant=s Sixth Amendment right to compulsory process is violated when the 

defendant is deprived of testimony that would have been relevant, material and vital to his 

defenseCin other words, when he is prejudiced. ValenzuelaBBernal, 458 U.S. at 867 (quoting 

Washington, 388 U.S. at 16). Such a deprivation constitutes a violation of the defendant=s right to 
85 

due process of law. ValenzuelaBBernal, 458 U.S. at 867. To succeed on a motion to dismiss an 

indictment for violating the defendant=s Sixth Amendment right to compulsory process of 

witnesses or his Fifth Amendment right to due process of law, the defendant must make some 

plausible showing of how the witness=s testimony would have been both material and favorable to 

aiding him in his defense. Id. at 859. Such interference may involve threats of prosecution or 

other intimidating conduct. United States v. Pinto, 850 F.2d 927, 932 (2d Cir. 1988). 

An agent working on behalf of the government violates a defendant=s rights where the 

agent threatens to retaliate against a witness or makes intimidating statements to a witness that 

interfere with or prevent the witness from testifying. United States v. Hammond, 598 F.2d 1008, 

1012 (5th Cir. 1979), aff=d on reh=g, 605 F.2d 862 (5th Cir. 1979). The prosecution and the 

defense have an equal right to interview witnesses in criminal proceedings, although the 

defendant=s Sixth Amendment right of access is not violated when a witness chooses on his or her 

own accord not to be interviewed by the defense. United States v. Bittner, 728 F.2d 1038, 

1041-42 (8th Cir. 1984); see also United States v. Bowens, 318 F.2d 828, 829 (7th Cir. 1963) 

(holding that the witness is free to decide whether to grant or refuse an interview and that it is not 

improper for the government to inform the witness of that right). 

Witnesses Aare the special property of neither party,@ Vole, 435 F.2d at 778, and Aboth sides 

have an equal right and should have an equal opportunity to interview them,@ White, 454 F.2d at 

438-39. See also United States v. Soape, 169 F.3d 257, 270 (5th Cir. 1999) (quoting Gregory, 

369 F.2d at 188) (internal quotation marks omitted) (A[A]s a general rule, [w]itnesses ... to a crime 

are the property of neither the prosecution nor the defense. Both sides have an equal right, and 

should have an equal opportunity, to interview them.@). However, the prosecution may not 
86 

interfere with a witness=s free choice to speak with a defense attorney; such interference can 

amount to a denial of due process in violation of the Fifth Amendment or the defendant=s Sixth 

Amendment right to compulsory process of witnesses in his favor. Newell, 283 F.3d at 837;

Skilling, 554 F.3d at 567; Roach, 502 F.3d at 437. This is not to say that the government cannot 

advise a potential witness of his right to decline interviews with defense counsel; in such an 

instance, there is no interference and as such there is no violation of the defendant=s Sixth 

Amendment right of access to the witness no denial of due process. Bittner, 728 F.2d at 1041; 

(citing United States v. Scott, 518 F.2d 261, 267-68 (6th Cir. 1975); United States v. Long, 449 

F.2d 288, 295 (8th Cir. 1971)). Inherent in that advice is the ability for the witness to choose to 

accept it or deny it and therefore decide for himself whether he wants to speak with defense 

counsel. 

However, when the government=s actions substantially impair a witness=s decision to 

testify, such as by threat, coercion, interference, or intimidation, and the witness=s free decision to 

testify is hampered, the government has denied the defendant of his Fifth Amendment right to due 

process of law and his Sixth Amendment right to compulsory process of witnesses in his favor, and 

the proper remedy for such misconduct may be the dismissal of the indictment. Burke, 425 F.3d 

at 411 (holding that a federal court possesses the power to dismiss an indictment when the 

government violates the defendant=s right to due process); United States v. Antonino, 830 F.2d 798, 

804 (7th Cir. 1987) (quoting United States v. Gouveia, 467 U.S. 180, 192 (1984)) (internal 

quotation marks omitted) (AThe Fifth Amendment requires the dismissal of an indictment, even if 

it is brought within the statute of limitations, if the defendant can prove that the Government=s 

delay in bringing the indictment was a deliberate device to gain an advantage over him and that it 
87 

caused him actual prejudice in presenting his defense.@); Calzada, 579 F.2d at 1363 (emphasis 

supplied) (AOn the record before us, we cannot say that the district court erred in finding that the 

defendants= constitutional rights to compulsory process had been violated, nor that it abused its 

discretion in concluding that the only reasonable remedy for that violation was the dismissal of the 

indictment.@). A[P]rejudice to the defendant is an essential element when a criminal defendant 

seeks dismissal of an indictment due to prosecutorial misconduct.@ United States v. O=Keefe, 825 

F.2d 314, 318 (11th Cir. 1987). 

Against this backdrop of the law, the actions of the prosecution must be placed. Within 

one day after the Indictment against Linder was returned by the Grand Jury, the Marshal sent an 

e-mail to all Marshals Service personnel in the District. The e-mail commanded all Marshals 

Service personnel to follow Aspecific rules that must be adhered to@ with respect to Linder. In the 

e-mail the Marshal instructed that A[a]ny contact with prosecutors and investigators involved in the 

case must be handled in a polite, professional, and appropriate manner.@ In sharp contrast, the 

e-mail instructed the same personnel to not discuss Aany matter about the case with DUSM Linder

or anyone else except as authorized or as a matter of official duty.@ The e-mail further instructed 

that AMarshal Service employees must limit their personal contact and socialization with DUSM 

Linder to not create any appearance of the above.@ Finally, the most significant order for 

purposes of the Court=s constitutional analysis was the final instruction in the e-mail of Aspecific 

rules@ setting forth that A[USMS] employees may not discuss the case with DUSM Linder=s 

attorneys or associates except after notifying management and receiving authorization.@

After circulating this first e-mail throughout the Marshals Service, certain problems 

immediately arose with various deputies questioning the order especially those deputies who had 
88 

served in the Marshals Service during the previous management when a different deputy Marshal 

was under investigation. Because the orders were drastically different, some of the deputies 

testified that they were immediately concerned that they would be punished if they had contact 

with Linder. Of course, their concerns were only magnified when the second e-mail was issued. 

Assistant Chief McFarden sent a second e-mail to all Marshals Service personnel in the District. 

The second e-mail contained the Marshal=s original e-mail of Aspecific rules,@ but this e-mail also 

included a threat to all personnel if they failed to follow the Marshal=s rules. The second e-mail 

attached potential disciplinary sanctions and criminal offenses for violating the Aspecific rules.@ 

In addition, McFarden wrote in the second e-mail that A[i]f I become aware of behavior that is 

contrary to the above listed guidance, it will be dealt with and through the U.S. Marshals Service=s 

official discipline process and Employee Relations. For your reference, I have attached a Table 

of Marshals Service and DOJ Offenses. The list is not all exhaustive. Please take time to review 

it.@ The attachment had the in terrorem effect of making a violation of the Marshal=s rules a 

prosecutable offense. 

Once the second e-mail was sent, many of the deputies who testified at the hearing stated 

that they no longer questioned the directives; it became clear to them that any involvement with 

Linder or his defense attorney would result in being disciplined at best and fired from their position 

at worst. At a bare minimum, the deputies knew that their conduct would become the part of a 

disciplinary proceeding. The combination of the two e-mails, with the aggressive interviewing 

tactics of Shirley, and the threats of prosecution by the prosecutors, the deputies no longer had a 

choice to talk with Linder or his counsel. That choice had been taken away by the prosecution 

team because any choice that was not condoned by the government was a choice that would result 
89 

in sanctions, either civil or criminal. The e-mails substantially hampered Linder in his ability to 

conduct a defense investigation. Not only were the deputies warned that any discussion with the 

defense could result in discipline, the order stretched so far as to impair their right to associate with 

Linder socially. They were threatened with discipline if they interacted in any manner socially and 

personally with Linder if Management deemed that the personal interaction improper. 

The first deputies who testified at the hearing discussed the impact of the e-mails. Each 

testified that he wanted to interact with Linder, wanted to speak with the defense but feared that 

any interaction with the defendant or the defense would result in discipline. Most of the deputies 

offered that they would provide the defense with their statement that in all of their dealings with 

Linder he had never acted unprofessionally or had used excessive force. One might argue that the 

deputies were only providing character evidence and as such the defense here was not harmed. 

The problem with this analysis is that the witnesses were deprived of that choice to be interviewed, 

Linder was deprived of the ability to have his counsel explore whether they might be able to add 

more than merely character evidence, and Linder was blocked from being able to explore and 

develop a defense based on the information that they might have been able to provide to the 

defense. After all, a seasoned defense attorney may explore various tactics of defense and he 

knows better than the witness whether the answers to his questions are valuable to that defense. 

Often the witness=s belief of whether his statement is helpful or not is not evident to the witness but 

may be critical to the seasoned trial attorney. In short, even those alleged character witnesses who 

testified that they were intimidated into not speaking with the defense might be critical to the 

defense. The point is that the defense was never given the opportunity to even explore any 
90 

theories of defense due to his access to those witnesses being blocked by the direct and threatening 

e-mails and the aggressive nature of the investigator. 

Yet, at the hearing, there was more than merely character evidence suggested as being the 

only evidence that was blocked by the government. Deputy Stenson=s testimony constituted 

direct exculpatory evidence that undermined the entire prosecution. Stenson testified that Sims 

had recanted the allegations he had made against Linder to Stenson shortly after he had reported 

that alleged assault to McPherson and other Marshals Service management personnel. Sims told 

Stenson: AI jumped the gun. I made a mistake. I should have [taken] the time to file an accurate 

complete report.@ Stenson further testified that Sims told him: AI was scared that if I didn=t file it 

immediately that I would be accused of, myself, of some wrongdoing.@ Finally, Stenson testified 

that Sims told him that he Afelt bad about filing an inaccurate report,@ and that he Awas going to take 

the initiative to contact the investigators to let them know he made a mistake, that he didn=t write a 

complete and accurate report, and he jumped the gun.@ 

This testimony must be understood in context with the other evidence used to present this 

case to the grand jury. Critical to Stenson=s testimony is his own credibility. Unlike many of the 

other deputies who were friends with Linder and were obviously concerned about their friend 

being prosecuted, Stenson came with no predisposition. He stated that he is not friends with 

Linder. In fact, he is friends with Sims. His demeanor on the witness stand evidenced an 

impartial and even ethically torn individual who tried to provide mentoring advice to his friend to 

do the right thing carefully. In spite of that, he learned devastating information about the 

prosecution and believed that he could not share that information without fear of reprisal. He 

sought legal advice. 
91 

 There are only two complaining witnesses who provided the basis for the prosecution: 

Sims and Solis. Sims=s credibility is substantially undermined, if not eliminated, by this 

recantation of his original complaint to OIG as described through the credible testimony of 

Stenson. Without Sims=s testimony, the government must rely solely on Solis, the victim who 

needed to be interviewed three times before he even stated anything about an incident with a Atask 

force officer.@ The victim provided the statement only after being asked a number of times and 

after having photos taken of his face. None of this was provided to the defense due to the fear of 

discipline. Stenson refused to discuss this matter with Linder=s defense team because of the 

Marshal=s e-mails. Stenson also testified that he would not speak with the defense, even now, 

unless he is subpoenaed. Stenson is still concerned about interacting with the defense because the 

Marshal can make determinations about his career. 

Stenson=s testimony at the hearing revealed precisely the kind of evidence that the defense 

has been unable to gather because of the interference and intimidation caused by the government 

e-mails and the aggressive investigation tactics of Shirley and the prosecutors. 

Stenson made it perfectly clear during the hearing that he would not meet with Linder=s 

defense team because of the Marshal=s edict. Stenson testified that he was approached by Linder=s 

counsel in a courtroom in early 2012, and that the attorney stated that he wanted to ask him some 

questions. Stenson responded that there was a Astanding order@ by the Marshal stating that AI 

could not answer any questions or talk to you or any other third party without getting permission 

from the U.S. Marshals Service here in Chicago.@ Stenson had received and reviewed the e-mails 

and from those e-mails he understood that he Awould be disciplined@ if he spoke to the defense 

without receiving permission from the Marshal. 
92 

Stenson was not the only witness who testified beyond character evidence. Linder=s 

defense team also attempted to contact Theodore Stajura, from the GLRFTF, but he never spoke to 

them. He had concerns about meeting with Linder=s attorneys because of Shirley=s conduct and 

the repercussions that might befall him and his officers. Stajura believed that Aeverything should 

be coordinated through the government.@ He further testified that he was fearful about dealing 

with Shirley and Cha because the Investigator and the AUSA sent the clear message to him that he 

would be prosecuted if he was supporting Linder. 

Stajura was on the scene when Linder allegedly assaulted Solis, and the defense believes 

the he possesses material and favorable evidence and information to Linder. Stajura was 

interviewed by Shirley, and later by the Assistant United States Attorneys, Cha and Blumberg, and 

he testified in the Grand Jury. McPherson=s e-mail was delivered directly to Stajura=s Blackberry. 

Stajura testified that he thought the e-mail basically said to Acease and desist@ all contact with 

Linder. Stajura followed McPherson=s directive, especially after he asked Ed Farrell about it and 

Farrell told him to Aheed it and listen to it.@ Stajura=s testified as a credible witness who genuinely 

feared that he could lose his position with the Marshals Service if he spoke to Linder or even 

socialized with him. He candidly described how he did not want to put his position in jeopardy. 

Not only was Stajura concerned for himself, he took the warnings so seriously that he 

spoke to the officers under his command on the GLRFTF about the e-mails. He told the officers 

about the rules, which he described as coming from the Ahighest level,@ and instructed the officers 

to limit their association with Linder. Stajura gave these instructions to at least five officers with 

knowledge of the events of July 8, 2010, the date of the alleged assault charged in Count I of the 

Indictment. While Stajura told his officers to cease contact with Linder, he simultaneously told 
93 

them that they Ahad to cooperate with the investigation that was being conducted by Senior Special 

Agent Shirley.@ Stajura testified that he was Afearful of prosecution from Special Agent Shirley 

and [Cha] and the other prosecutors[.]@ Stajura was a believable witness who was not hyperbolic in 

his presentation but rather candid about his fear. 

The defense believes that Stajura would be able to provide evidence and information that 

refutes the Government=s allegations. He was in close proximity to the van in which the alleged 

assault occurred and was able to observe Linder, Sims, and others. He did not see or hear an 

assault, nor was there any discussion or activity indicating that an assault had taken place. The 

alleged victim did not request any medical attention, and none was required. Furthermore, the 

alleged victim did not display any marks or bruising consistent with an assault. Stajura has 

refused the defense=s requests for an interview to confirm his observations at the scene of the 

alleged assault. 

The testimony of Stajura when coupled with the recantation of Sims and the weakness of 

Solis’s delayed report of the incident to the investigators constitutes more evidence of a material 

and exculpatory nature that was blocked by the Government. Stajura=s statement that he was in 

proximity of the incident when it occurred and that he did not hear anything, see anything and most 

importantly that no one, including the victim stated anything, corroborates Linder=s version of the 

events. The lack of any discernible injury immediately after the incident further corroborates 

Linder=s version. Stajura, like the Stenson, another credible witness with no motivation to 

fabricate, had material and helpful information for the defense and he did not provide it due to his 

fear that he would be disciplined. 
94 

Stajura also offers insights into the Government behavior that takes this matter from a mere 

miscommunication to an intentional violation of Linder=s constitutional rights. If the case only 

involved the unfortunate misstep of the Marshal sending out poorly worded e-mails at the direction 

of OGC and then remedying those missives by sending out a follow-up e-mail a few months later, 

the Court might be analyzing this case differently. Certainly, the Government wants the Court to 

look at the e-mails as a mere administrative gaff that was rectified once it was brought to the 

Court=s attention. Yet, the e-mails were only one piece of an overly aggressive prosecution 

marked by a federal agent who threatened witnesses with prosecution and prosecutors who joined 

in by threatening witnesses who would not provide them with the statements they wanted to hear 

with either being charged with perjury or becoming a focus of the prosecution itself. 

One of the most credible witnesses to testify was Inspector Jim Smith, a seasoned veteran 

of the Marshals Service. Smith was candid and forthright that the messages that were received 

were so atypical that it was no wonder that the deputies acted in fear as they did. Having lived 

through the Ambrose investigation and prosecution, he highlighted how the difference in e-mails 

made all of the deputies fear that their jobs were at stake. His calm and professional demeanor on 

the witness stand was that of an experienced professional of over twenty five years and marked a 

stark contrast with that of Inspector Shirley. Smith was looked up to by other deputies who turned 

to him for advice about how to proceed. Having never seen such harsh warnings in his career, he 

took them seriously and conveyed to his supervisees that they should do so also. His concern was 

evident. He feared for both his position that he had served honorably for a quarter of a century 

and he feared for those who worked for him and he sought to warn them not to sacrifice their jobs. 
95 

In stark contrast, Inspector Shirley=s testimony was marked with his unfounded belief that 

he was being thwarted by the deputy marshals and the Marshals Service management at each step 

of his investigation. Rather than realize that it is the obligation of the trained investigator to 

develop his case in spite of individuals who may not want to speak with him, Shirley, and later 

AUSA Cha, chose to deem each reluctant witness as a target of the investigation. If the witness 

was not for them, he was against them. If the witness was deemed to be against them, he was 

deemed a target and a coconspirator. Shirley=s demeanor on the stand was more like that of an 

untrained investigator who developed an unfounded belief that each witness that did not want to 

volunteer evidence for him must be a criminal who was worthy of federal prosecution. When 

deputies did not want to speak with Shirley and Cha, they turned to the Marshal to complain that 

his employees were not doing their bidding. 

Shirley=s demeanor on the stand was less than credible as was pointed out earlier with his 

inconsistent statements. Shirley reached conclusions without support and developed a 

conspiratorial theory for anyone who did not speak with him. In response to a reluctant witness at 

the task force who did not want to be pulled from his official duties, Shirley unprofessionally and 

aggressively told the witness while the witness was on duty that Shirley Aowned him@ evidencing 

his aggressive belief that he was required to impose his authority over the witness to control him 

and instill fear in him. 

As a former federal prosecutor, the Court is well aware that it is within the Executive 

Branch=s power and authority to candidly warn a target of a prosecution that he can be charged 

with criminal offenses of which the prosecutor is aware and has evidence to support. This 

aggressive questioning can even include the candid threat of various sentences that a target could 
96 

receive based on the evidence. But there is a difference between candidly and aggressively 

threatening a target with prosecution for offenses for which the target can be charged and the 

flippant threat that a target will be prosecuted for lying simply because that witness is not 

answering the investigator=s questions in the way that the investigator believes they should be 

answered. Without support for such an accusation, the threat of prosecution for perjury or for 

conspiring with the defendant crosses the line and becomes a threat from an overbearing 

investigator used to bully the witness into compliance. The witnesses who testified that they were 

bullied, threatened, and treated like perjurors were not targets of the investigation. Not once did 

the Government state that these witnesses were targets who could be charged. Instead they used 

the threats of prosecution as a standard way of conducting business. When the witnesses did not 

provide them with the help they believed they should have received, they even went so far as to 

meet with the Marshal for the sole purpose of complaining to him that his employees were not 

being cooperative and therefore creating a division within his ranks. The sole purpose of such a 

meeting was to once again engage the Marshal to aid them in their investigation. Shirley=s 

demeanor on the stand verified that this was his belief B that he was entitled to complete 

compliance with each of his requests and his interviews and anything less would result in a severe 

result B prosecution. 

Even beyond this testimony, there was even more testimony that was material and helpful 

to Linder. John Hadjioannou, from the Great Lakes Task Force, is also a percipient witness to the 

assault alleged in Count I of the Indictment. Linder=s attorneys attempted to contact Hadjioannou 

more than once about Linder=s case. He has not spoken with Linder=s counsel and has refused to 

speak with the defense team. Hadjioannou saw the e-mails because they were printed out and 
97 

accessible at the GLRFTF office. He testified that because of the e-mails A[he] [didn=t] want to 

get involved with this case.@ He further testified that he Adidn=t want to be thrown off the Task 

Force for doing something that other U.S. Marshals were actually told not to do.@ Hadjioannou 

was another credible witness. It was clear that he genuinely believed that he could lose his job if 

he, in any way, had contact with Linder, whether socially or for the case. 

This comment was one that was repeated by various deputies in one form or another 

throughout the hearing. All of whom credibly testified that the fear of losing their job was a 

significant fear and one which they could not risk. It is important to take into account that the job 

of the deputy US Marshal and those task force members who serve with them are vocations that 

take years to obtain. Unlike the private sector, these positions are highly sought after and take 

years of training and testing before one will be accepted into the position. Aside from the years of 

education and training, the deputies must be reviewed in rigorous physical fitness testing, 

psychological testing, and an elaborate review process that culls out only the most qualified 

candidates. Once sworn in as a deputy Marshal, these men and women accept a low salary to do 

some of the most dangerous law enforcement tasks expected of federal law enforcement officers 

including apprehending criminal fugitives. It took the majority of the witnesses years to become 

deputies and records show that the attrition of deputy Marshals is minuscule in comparison to other 

job statistics. 

As such, when a deputy testified that he feared he would lose his job, it meant that it would 

essentially end a vocation that he had devoted his training, education and passion to fulfilling. 

Unlike a private sector position where an employee might reasonably choose to leave a position 

and take up another with another firm, these government servants would be sacrificing a career 
98 

that most would never envision leaving. The threat of discipline was equally as devastating to 

these deputies. Once a deputy carries the disciplinary sanction on his record, he is essentially 

rendered incapable of a significant portion of his duties: testifying in court. That disciplinary 

record would be required to be turned over to the defense in any case in which the deputy were to 

testify and would be used to attack the deputy=s credibility on the witness stand. As such, 

management may choose to move that deputy from a position where he would be in a position to 

testify so as to avoid the risk of weakening a prosecution. In short, discipline and discharge must 

be taken in the light of a deputy Marshal=s role and service and when it is, the threat of either 

carries a heavier weight than that threat levied against a civilian employee. 

With this understanding, the Court heard the testimony of Hadjioannou who also testified 

that he has information that could benefit Linder at trial. Hadjioannou believes that the 

information he has is important to the underlying facts of the case, yet he feels that he has been 

hampered in communicating that information to the defense. Shirley intimidated Hadjioannou and 

indirectly impacted his decision not to speak with the defense. His testimony was credible. 

Hadjioannou testified that Shirley was Aintimidating@ during their interview, and made him feel 

like he was the target of an investigation. Cha and Blumberg made him feel like he had received 

a Abeat down@ during their interview with him. They accused him of lying and they threatened 

him with consequences. 

Another credible witness, Farrell, testified that he had not been able to discuss important 

matters with the defense because of the e-mails and the fall-out since the e-mails were distributed. 

The defense contends that Farrell is an important witness because he supervised Linder on the 

GLRFTF, was present when McPherson interviewed Linder, and can testify as to what occurred 
99 

during that meeting, and because of his communications with Linder around the time of the alleged 

assault. Farrell feared the loss of position and testified credibly to the aggressiveness of Shirley 

and Cha who became confrontational with him because he could not remember details from a year 

earlier. 

Paul Zitsch of the Task Force was also present at the time of the incident alleged in Count I 

of the Indictment. He spoke with the Government Aseveral@ times, met with Shirley and the 

Assistant United States Attorneys, and testified in the Grand Jury. Zitsch received and read the 

McPherson and McFarden e-mails. He subsequently was contacted by the defense investigator. 

He did not feel comfortable calling him back. Zitsch told the defense investigator that he had to 

follow the rules. The defense believes that Zitsch also has information favorable to the defense, 

as he saw the alleged victim without any marks or bruising after the alleged assault. In addition, 

Zitsch drove with Sims from Cicero, Illinois, the site of the alleged assault, to the Dirksen Federal 

Courthouse in Chicago immediately after the alleged assault, and yet Sims said nothing about it to 

him. 

Another witness, Troy Brejc, met with Shirley, was interviewed by the Assistant United 

States Attorneys, and testified in the Grand Jury about the events charged in Count I, as well as 

about Linder=s character. Brejc was contacted by the defense investigator, but he has not spoken 

with the defense about the case. He testified that although he wanted to cooperate with the 

defense, A[he] didn=t believe [he] was allowed to.@ Brejc was another credible witness who 

testified that he was so fearful that he actually sought legal advice and believed he needed to 

protect himself. He ultimately did not cooperate with the defense, in part, because of the e-mails. 
100 

Brejc did not seek authorization from McPherson to speak with Linder or his counsel because he 

did not want to deal with the Aramifications.@ 

This evidence clearly demonstrates that the Government interfered with witnesses= free 

choice to testify and deprived Linder of material testimony. Valenzuela-Bernal, 458 U.S. at 867; 

Webb, 409 U.S. at 98. When the government=s actions substantially impair a witness=s decision to 

testify, such as by threat, coercion, interference, or intimidation, and the witness=s free decision to 

testify is hampered, the government has denied the defendant of his Fifth Amendment right to due 

process of law and his Sixth Amendment right to compulsory process of witnesses in his favor. 

Burke, 425 F.3d at 411; Agostino, 132 F.3d at 1192; Antonino, 830 F.2d at 804. In this case, the 

e-mails sent from the Marshal=s office threatened, interfered with, and intimidated potential 

defense witnesses. The proper remedy for such misconduct is the dismissal of the Indictment. 

Wilson, 715 F.2d at 1169. The Government=s action here goes well beyond merely advising 

witnesses of their choice to testify. See Bittner, 728 F.2d at 1041. AIt is well-settled 

that substantial government interference with a defense witness=s free and unhampered choice to 

testify violates the defendant=s due process rights.@ Newell, 283 F.3d at 837. The Court 

concludes that the Government substantially interfered with potential defense witnesses=s free and 

unhampered choice to testify and blocked the defense=s ability to interview potential witnesses 

who had material evidence that would be beneficial to the defense. 

III. The Government=s Infirm Legal Analysis 

The Court agrees with Linder that the Government Aoffers very little in terms of legal 

analysis[.] Instead, it merely mentions general rules of law from a handful of cases, and then fails 

to explain why any of those rules prevent the Court from dismissing the indictment in this case.@ 
101 

(Doc. 86, Def.=s Post-Hr=g Br. at 23.) The Government briefly cites to Burke, 425 F.3d 400, and 

Skilling, 554 F.3d 529, to establish the burden of proof that a defendant must meet for dismissal of 

an indictment based on the Fifth and Sixth Amendments and to note the general constitutional 

rights of a criminal defendant to interview and obtain access to witnesses pursuant to the 

Compulsory Process Clause. (Doc. 87, Gov.=s Post-Hr=g Br. at 4.) AWhile Linder does not 

object to the general propositions of law as cited in the government=s scant two-page legal 

discussion,@ (Doc. 98, Def.=s Resp. to Gov.=s Post-Hr=s Br. at 23), the Court finds that the 

Government=s string citations are to no avail in furthering its legal arguments in light of the 

evidence received during the evidentiary hearing. 

The Government cursorily raises Skilling, 554 F.3d 529, and Bittner, 728 F.2d 1038, in an 

effort to argue that none of the relevant witnesses refused to be interviewed by the defense due to 

the Marshal=s Aspecific rules@ disseminated in the McPherson and McFarden e-mails. (Doc. 87, 

Gov.=s Post-Hr=g Br. at 12.) However, this argument grossly mischaracterizes the testimonial 

evidence and the applicability of the cited jurisprudence. In Bittner, 728 F.2d at 1041-42, the 

defendant raised governmental interference where the victim refused to speak with the defense 

after a Federal Bureau of Investigations agent advised her, prior to trial, that she could refuse to be 

interviewed. The Eighth Circuit found that the victim simply exercised her right to refuse to be 

interviewed and that the agent did not interfere with her Afree choice@ by merely advising her of her 

rights. Id. The court held that A[c]ontacts of that nature do not constitute an impermissible 

interference with the defendant=s right of access to witnesses.@ Id. at 1042. While this is an 

accurate statement of law, the Government seems to misapprehend it, and has selectively and 

wrongfully applied it to the evidence in this case. 
102 

The Government focuses on the testimonies of McPherson, Walenda, and Zitsch, claiming 

that their refusals to meet with the defense were Aindependent@ of the Aspecific rules.@ (Doc. 87, 

Gov.=s Post-Hr=g Br. at 12.) However, the Government willfully and completely ignores the 

testimonies from seven other witnesses, all of whom testified that the Aspecific rules,@ in addition 

to the conduct of Shirley and other members of the prosecution team, prevented them in some way 

from communicating with the defense. (See Tr. at 373-77; 393; 406; 415-15; 421-28; 457-58; 

463-68; 474-76; 480-81; 485-90; 504-05; 516-17; 530-35; 537-39; 540-43; 562; 564-65; 671-75; 

684-85; 689; 693-704; 712; 717; 719-22.) As evidenced by the testimonies of Stenson, Farrell, 

Smith, Hadjioannou, Brejc, and Stajura, this was not a case of Afree choice@ like that in Bittner, 728 

F.2d at 1042, where the witness voluntarily chose on her own not to speak with the defense. 

As further demonstrated by the testimonies of O=Malley, Farrell, and Stajura, other 

Marshals Service and Task Force members were also intimidated by the e-mails, expressed 

concerns about the meaning and import of the Aspecific rules,@ and complained about Shirley=s 

threats and intimidations. (See Tr. at 343-44; 417-19; 488-90; 494; 509-10.) Thus, the evidence 

as a whole demonstrates that this was not a Bittner situation where the conduct at issue was 

harmless and only aimed at advising someone of her rights. 728 F.2d 1041-42. 

Similarly, in another attempt to rely on Skilling, 554 F.3d 529, the Government tries to 

portray the testimony of Brejc, arguing that as a Alegal matter@ there can be no A >substantial 

governmental interference= with the defendant=s right to access witnesses@ where a witness has 

Amultiple reasons@ for refusing a defense interview. (Doc. 87, Gov.=s Post-Hr=g Br. at 12.) In 

Skilling, 554 F.3d at 565-75, the defense raised its constitutional challenge based on various types 

of intimidation and interference that had allegedly been committed in several ways and involved 
103 

multiple witnesses. The rule raised by the Government relates to an attorney, Robert Sussman, 

who represented several witnesses who expressed concerns about meeting with Skilling=s lawyers. 

Id. at 568. Sussman testified at a hearing that Aa number of factors informed his advice to clients 

that they should not cooperate with Skilling,@ and that the potential for government retribution or 

reprisal was only one Aamong a number of other factors.@ Id. at 568-69. As parenthetically cited 

by the Government, the court refused to find a due process violation based on the Amultiple 

reasons@ that the witnesses refused to meet with the defense. Id. at 569 (Doc. 87, Gov.=s Post-Hr=g 

Br. at 12-13.) 

This is not, however, a bright-line rule as the Government portrays (and would like) it to 

be. The Government=s citation to this particular holding in Skilling overlooks a critical fact 

considered by the Fifth Circuit in that case. 554 F.3d at 569. This is a fact that altogether 

distinguishes Skilling from the interference and intimidation in the case at bar. Sussman 

specifically testified that Athe government had made no explicit or implicit statement that his 

clients should not meet with defense counsel.@ Id. The Skilling court found this fact of 

Aparticular importance@ in holding that the district court did not err in determining that the 

government did not substantially interfere with Skilling=s ability to interview Sussman=s clients. 

Id. 

Based on this rationale, the Government=s reliance on Skilling is inapposite for two primary 

reasons. First, even if Brejc had Amultiple reasons@ for not speaking with the defense, his 

testimony demonstrates that those Amultiple reasons@ were all based on his fear of the Government 

in some capacity. (See Tr. at 667-68; 670; 671-75; 685; 689.) Second, unlike Skilling, this case 

obviously involves an explicit statement from the Government the Marshals Service and Task 
104 

Force members that they were not allowed to meet with Linder=s counsel or have any contact with 

Linder himself. 

The evidence is much different in this case insofar as it involves explicitly prohibitive 

statements that were circulated, on more than one occasion, and that are identified as Aspecial 

rules@ with accompanying United States Marshals Service and Department of Justice offenses and 

disciplinary sanctions. As the testimony from the hearing shows, those Aexplicit@ statements also 

conveyed a very Aexplicit@ and Aimplicit@ message that reverberated throughout the Marshals 

Service in the District and the GLRFTF, instructing personnel not to meet with Linder or his 

counsel. See Skilling, 554 F.3d at 569 (AOf particular importance, . . . the government had made 

no explicit or implicit statement that his clients should not meet with defense counsel.@) (emphasis 

supplied). The constitutional violations in the instant case are far more egregious, and Skilling

weighs in favor of finding that Linder=s Fifth and Sixth Amendment rights were violated by 

Shirley and the prosecutors. Id. (AThe Sixth Amendment guarantees a criminal defendant the 

right to present witnesses to establish his defense without fear of retaliation against the witness by 

the government, and the Fifth Amendment protects the defendant from improper governmental 

interference with his defense.@) The Government=s assertion that Brejc=s testimony cannot 

Alegally or factually@ support a finding of substantial Government interference, (Doc. 87, Gov.=s 

Post-Hr=g Br. at 13), is unsupported by the record, as well as the holding in Skilling. 

The Government does expound somewhat substantially on the Supreme Court=s decision in 

Valenzuela-Bernal, 458 U.S. 858. (Doc. 87, Gov.=s Post-Hr=g Br. at 4.) Valenzuela-Bernal, as 

accurately stated by the Government, concerned a due process challenge after a prosecutor 

deported witnesses whom the defense had not had an opportunity to interview. In 
105 

Valenzuela-Bernal, the Government=s action in placing potential alien witnesses beyond the 

court=s subpoena power before the defendant was afforded an opportunity to interview and 

subpoena them was held not to violate the defendant's Fifth Amendment right to due process and 

Sixth Amendment right to compulsory process of witnesses in his favor. Id. at 874 (AIn this case 

the [defendant] made no effort to explain what material, favorable evidence the deported 

passengers would have provided for his defense. Under the principles set forth today, he 

therefore failed to establish a violation of the Fifth or Sixth Amendment, and the District Court did 

not err in denying his motion to dismiss the indictment.@). 

In Valenzuela-Bernal, the defendant was convicted of violating 8 U.S.C. ' 1324(a)(2), 

which proscribes the knowing transportation of an alien who last entered the United States within 

three year prior to the date of transportation. Id. at 860. The defendant, with five passengers in 

his vehicle, had refused to stop at a checkpoint upon the order of a Border Patrol agent. Id. at 861. 

A[The defendant] accelerated through the checkpoint and was chased at high speed for 

approximately one mile before stopping the car and fleeing on foot along with the five passengers. 

Three of the passengers and [the defendant] were apprehended by the Border Patrol agents.@ Id. 

After the passengers admitted to being in the Country illegally and identified the defendant as the 

driver, A[a]n Assistant United States Attorney concluded that the passengers possessed no 

evidence material to the prosecution or defense of [the defendant] for transporting illegal aliens, 

and two of the passengers were deported to Mexico.@ Id. The defendant argued Athat the 

deportation had deprived him of the opportunity to interview the two remaining passengers to 

determine whether they could aid in his defense.@ Id. 
106 

After a bench trial in the United States District Court for the Southern District of 

California, the defendant was found guilty of the charges against him. Id. at 860. However, the 

United States Court of Appeals for the Ninth Circuit overturned his conviction, United States v. 

Valenzuela-Bernal, 647 F.2d 72, 75 (9th Cir. 1981), holding that Athe Government here selected 

certain aliens for detention while returning others to Mexico; the deported aliens were 

eyewitnesses to, and active participants in, the crime charged, thus establishing a strong possibility 

that they could have provided material and relevant information concerning the events constituting 

the crime.@ The Ninth Circuit further stated that Athe Government=s action in placing potential 

alien witnesses beyond the court=s subpoena power before the defendant was afforded an 

opportunity to interview and subpoena them violated the defendant=s Fifth Amendment right to 

due process and Sixth Amendment right to compulsory process.@ Id. at 73. 

Certiorari was granted, 454 U.S. 963 (1981), and the Supreme Court of the United States 

reversed the judgment of the Ninth Circuit. Valenzuela-Bernal, 458 U.S. at 860. The Court 

began by noting that Athe Sixth Amendment does not by its terms grant to a criminal defendant the 

right to secure the attendance and testimony of any and all witnesses: it guarantees him 

>compulsory process for obtaining witnesses in his favor.=@ Id. at 867 (quoting U.S. Const., 

amend. VI; Washington, 388 U.S. at 16) (internal quotation marks omitted) (emphasis in original). 

Relying on this language, the Court stated that a criminal defendant Acannot establish a violation of 

his constitutional right to compulsory process merely by showing that deportation of the 

passengers deprived him of their testimony.@ Valenzuela-Bernal, 458 U.S. at 867. Rather, the 

Court held that in order to show a violation of his rights under the Fifth and Sixth Amendments to 
107 

the United States Constitution, the defendant must Aat least make some plausible showing of how 

their testimony would have been both material and favorable to his defense.@ Id. 

As mentioned by the Government, the Valenzuela-Bernal Court discussed the requirement 

that the unavailable evidence be material. Id. at 867-68, 872-74. ALinder does not object to these 

general propositions of law,@ however, the Government=s application of them is misplaced and 

overlooks that Valenzuela-Bernal is distinguishable from the instant case. (Doc. 98, Def.=s Resp. 

to Gov.=s Post-Hr=s Br. at 26.) 

To begin with, the holding of Valenzuela-Bernal was narrowly tailored it is to facts 

alleging a constitutional violation based on the government=s deportation of witnesses. 458 U.S. 

at 873 n.9 (Stating that A[i]n adopting this standard, we express no opinion on the showing which a 

criminal defendant must make in order to obtain compulsory process for securing the attendance at 

his criminal trial of witnesses within the United States.@) (emphasis supplied). The Seventh 

Circuit has adopted the Valenzuela-Bernal materiality requirement specifically in the context of a 

Sixth Amendment challenge to the government=s deportation of witnesses. See United States v. 

Pizarro, 717 F.2d 336, 345 (7th Cir. 1983) (quoting Valenzuela-Bernal, 485 U.S. at 873) (internal 

quotation marks omitted) (alteration in original) (AAs the Supreme Court has recently instructed 

us, absent some showing of intentional governmental misconduct, a defendant can establish no 

Sixth Amendment [or Due Process Clause] violation without making some plausible explanation 

of the assistance he would have received from the testimony of the [missing] witness.@); United 

States v. Chaparro-Alcantara, 226 F.3d 616, 624 (7th Cir. 2000) (noting that A[t]he principles of 

ValenzuelaBBernal have been followed uniformly by the courts of appeals@). 
108 

Additionally, the Government does not acknowledge the Court=s rationale in upholding the 

government=s conduct based on its own unique needs in ValenzuelaBBernal. The 

ValenzuelaBBernal Court considered the tension that the government is confronted with in 

upholding its Adual responsibility@ to prosecute those accused of violating the laws of the United 

States, while at the same time upholding Congress=s immigration policies, which may require the 

deportation of individuals who are witnesses to a crime. 458 U.S. at 864-65. The Court stated 

that A[t]he Government may, therefore, find itself confronted with the obligation of prosecuting 

persons in the position of [the defendant] on criminal charges, and at the same time obligated to 

deport other persons involved in the event in order to carry out the immigration policies that 

Congress has enacted.@ Id. at 864. The Court found that the power to regulate immigration is 

entrusted to the political Departments of the federal government, and that Congress=s immigration 

policy includes the prompt deportation of illegal alien witnesses. Id. at 864. AIn addition to 

satisfying immigration policy, the prompt deportation of alien witnesses who are determined by 

the Government to possess no material evidence relevant to a criminal trial is justified by several 

practical considerations. . . . Thus, the detention of alien eyewitnesses imposes substantial 

financial and physical burdens upon the Government, not to mention the human cost to potential 

witnesses who are incarcerated though charged with no crime.@ Id. at 865. The Court found that 

Athe responsibility of the Executive Branch faithfully to execute the immigration policy adopted by 

Congress justifies the prompt deportation of illegal-alien witnesses upon the Executive=s 

good-faith determination that they possess no evidence favorable to the defendant in a criminal 

prosecution. The mere fact that the Government deports such witnesses is not sufficient to 

establish a violation of the Compulsory Process Clause of the Sixth Amendment or the Due 
109 

Process Clause of the Fifth Amendment.@ Id. at 872-73. The Court held that the government had 

Agood reason@ to deport the witnesses Aonce it concluded that they possessed no evidence relevant 

to the prosecution or the defense@ and that the Adischarge of the obligations imposed upon it by 

Congress@ and A[t]he mere fact that the Government deports such witnesses is not sufficient to 

establish a violation of the Compulsory Process Clause of the Sixth Amendment or the Due 

Process Clause of the Fifth Amendment.@ Id. at 866, 872-73. 

In contrast to Valenzuela-Bernal and other cases in which deportation is at issue, the 

Government=s interference and intimidation in this case is neither required to uphold 

Congressional policies or acts, nor is it supported by any practical considerations, financial 

burdens, or other compelling needs of the Government to exercise its prosecutorial function. 

Furthermore, in Valenzuela-Bernal Athe [defendant] simply had no access to the witnesses who 

were deported;@ in this case the constitutional violations committed by the Government against 

Linder are not merely based on a general lack of access to witnesses. Id. at 869. On the contrary, 

in the instant case the Government put up and imposed affirmative and explicit barriers, upon 

threat of severe (and even criminal) consequences, to prevent defense access to witnesses. The 

Court acknowledges that witnesses with material and favorable evidence and information exist, 

and that they have refused to speak with Linder=s counsel. 

The Government incorrectly asserts that the Court should deny the motion under 

consideration Aunless the defendant conclusively demonstrates that the information sought is no 

longer available.@ (Doc. 87, Gov.=s Post-Hr=g Br. at 5.) The Government=s declaration is an 

inaccurate statement of a rule of law; it misconstrues the holding in Valenzuela-Bernal and is 

unsupported by law. The Sixth Amendment will be violated where the defendant can provide a 
110 

Aplausible explanation of the assistance he would have received from the testimony@ of a given 

witness, or where the defendant is able to make a showing that the witness had material and 

favorable evidence. Valenzuela-Bernal, 458 U.S. at 867-69 (discussing, inter alia, the 

Amateriality@ requirement of Washington, 388 U.S. at 16) (alterations in original) (AIn Washington, 

this Court found a violation of this Clause of the Sixth Amendment when the defendant was 

arbitrarily deprived of >testimony [that] would have been relevant and material, and . . . vital to the 

defense.@); Brady, 373 U.S. at 87 (holding Athat the suppression by the prosecution of evidence 

favorable to an accused upon request violates due process where the evidence is material@); Moore 

v. Illinois, 408 U.S. 786, 794 (1972) (holding that A[t]his materiality requirement was emphasized@

by the Court in Brady). Applying this rule of the government=s deportation of the witnesses in 

Valenzuela-Bernal, the Court declined to find a violation because the defendant Amade no effort to 

explain what material, favorable evidence the deported passengers would have provided for his 

defense.@ 458 U.S. at 874. 

Unlike the Defendant in Valenzuela-Bernal, Linder has provided this Court with abundant 

evidence of how the intimidated witnesses could have assisted him in his defense. Linder has 

provided the CourtCin pleadings, motions, testimonies, and exhibitsCwith numerous accounts of 

how the intimidated witnesses possessed material, and in some cases, exculpatory, evidence and 

information, all of which would assist and support him in defending against the Government=s 

charges in the Indictment. The Valenzuela-Bernal standard applies to deportation cases, and does 

not require a prima facie showing, but rather only demands that the defendant makes a sufficient 

explanation of materiality. 458 U.S. at 872 (citing United States v. Lovasco, 431 U.S. 783 (1977); 

United States v. Marion, 404 U.S. 307 (1971)) (emphasis supplied) (ASuch an absence of fairness 
111 

is not made out by the Government=s deportation of the witnesses in this case unless there is some 

explanation of how their testimony would have been favorable and material.@). 

Finally, the Court notes that the remedy of dismissal of the Indictment is the only sanction 

that can effectively remedy the severe violations committed by the government in this case. The 

government argues that there is no prejudice because the defense now has the information that it 

did not have before and as such, an extension of discovery can remedy the injury by allowing the 

defense to develop the witness testimony now B three years after the incident B and prepare for 

trial. The government fails to take into account the severe prejudice to the defendant that has 

occurred over the past three years while he has awaited trial. Defense counsel has informed the 

Court that his client no longer is willing to agree to any exclusion of time from the speedy trial 

clock because he is desperate to finish the matter due to the significant burden that the pretrial 

period has had on him personally and on his family both psychologically and financially. 

Therefore, the government would only be rewarded for its aggressive and unconstitutional 

behavior if a mere extension of discovery would effectively remedy the violation. The violations 

here cannot be remedied by a mere extension of time especially in light of defendant=s request for a 

speedy trial. 

THE REMEDY 

The e-mails sent by United States Marshals Service, at the direction of the Office of the 

General Counsel, directly interfered with the defendant=s constitutional right to compulsory 

process of witnesses in violation of the Sixth Amendment and the government investigator and 

prosecutors intentionally interfered with defendant=s right to conduct a defense investigation and 

interview prospective witnesses through the use of unsubstantiated threats of prosecution in 
112 

violation of the Fifth Amendment. The defense has presented numerous witnesses who were 

intimidated into silence who could have provided the defense with information that would be both 

material and helpful to the defense. The remedy for such a severe violation of the defendant=s 

constitutional rights is dismissal of the indictment. 

CONCLUSION

For the reasons set forth above, Linder=s Motion to Dismiss the Indictment (Doc. 26) is 

GRANTED. 

__________________________________________ 

Virginia M. Kendall 

United States District Court Judge 

Northern District of Illinois 

Date: March 5, 2013