A trip to the United Kingdom to take depositions might be a welcome diversion for many lawyers, but not during the weeks leading up to a major, document-intensive, white collar criminal trial.  In United States v. Vilar, 05 CR 0621 (RJS), 2008 WL 2944654 (S.D.N.Y. July 31, 2008), previously blogged about here and here, the trial had been scheduled to begin on September 8, 2008.  On July 21, 2008, almost three years to the day after the indictment had been returned, the government moved to take the depositions of four witnesses in the U.K., claiming it had only just learned the witnesses were unwilling to testify at a U.S. trial.  The defendants opposed, pointing out that the government had inexplicably dragged its feet on this matter for too long, and conducting foreign depositions at this stage would unfairly prejudice their ability to prepare for trial.  Granting the motion as to two of the proposed witnesses as well as a two-week adjournment (in part to ensure the depositions could be completed without disrupting trial preparation), the court’s decision is an interesting spotlight on this rarely-used mechanism in criminal cases.

Requirements for Rule 15 Depositions

The court held that, as to two witnesses, all the requirements for depositions under Fed.R.Crim.P. 15 were met here: (1) they were unavailable (they were outside the subpoena power of the court, and refusing to testify, despite the government’s promise of an all expenses paid trip), (2) their testimony was material (it was “highly relevant” to one of the defendant’s alleged knowledge of and participation in the fraudulent schemes at issue, and to both defendants’ alleged misrepresentations), and (3) their testimony was necessary “to prevent a failure of justice” (a requirement usually satisfied when the first two are met, and here, the government’s delay did not represent such “as serious lack of due diligence” as to justify denying the motion). 

Showing Necessary to Succeed on Rule 15 Motion

Notably, in reaching its decision, the court rejected the defendants’ demand that in order to evaluate the availability prong, the government be directed to provide affidavits from the witnesses themselves confirming that they would not travel to the U.S, and in particular, that the government confirm that it had advised one of the witnesses that he himself may be a target in the case, which may impact his willingness to participate in any deposition.  In addition, the court rejected a similar demand that in order to satisfy the materiality prong, the government must produce affidavits from the witnesses as to their proposed testimony, or at a minimum, produce all of the notes and memoranda of the witness interviews.

Timing of Rule 15 Motion

Also noteworthy is the court’s rejection of the defendants’ argument that in considering whether the government had engaged in “unexcused delay,” the court should take into account the government’s failure to seek these depositions during the three-year period following the indictment.  “[T]hese prior periods of delay are simply unrelated to the issue of whether conducting the proposed depositions at this time would unfairly prejudice defendants . . . More importantly, defendants have failed to cite any order that the government violated by failing to bring a Rule 15 motion at an earlier date or any authority indicating that the government’s failure to file a Rule 15 motion prior to the two previously scheduled trial dates constituted a waiver of its ability to file such a motion at this time.”

Comment

This case is an interesting counterpoint to United States v. Mason, discussed here, where the court precluded evidence due to a late Rule 16 disclosure rather than adjourn a firm trial date in a multi-defendant case.  Of course, Rule 16 disclosures, unlike Rule 15 notices, have timing constraints: they are to be made upon request, and newly obtained Rule 16 materials are to be “promptly” disclosed before trial.  Moreover, in Vilar, unlike Mason, the only prejudice the defense could identify was disruption of trial preparation.  There was no suggestion that the depositions themselves might open a hornet’s nest requiring additional investigation or a severance.  Finally, the defendants’ laches claim might have had more traction if Mr. Vilar wasn’t simultaneously seeking his own adjournment of the trial until November. 

As noted by this blog previously, see here, the Adam Walsh Act of 2006 prohibits the reproduction of child pornography during legal proceedings, and in particular, permits the government to refuse to supply copies of child pornography to the defense in a child pornography prosecution as long as the material is made “reasonably available” to the defendant.  The “reasonably available” concept (the so-called “safety valve” of the Act) is defined in the statute as “ample opportunity for inspection . . . at a Government facility.”  The Second Circuit has not yet defined what constitutes “ample opportunity,” but several district courts have required it to be “due-process-level” access to the original material, or the defense team gets a copy of the hard-drive in question.

In United States v. Patt, 06-cr-6016, 2008 WL 2915433 (W.D.N.Y. July 24, 2008), the court further refined the meaning of “ample opportunity,” concluding that there was no due process violation where the defense expert may have found it time-consuming and inefficient to do his job at the government facility, but was nonetheless able to “conduct a complete and independent analysis of the hard-drives” at issue.  In the absence of any claim that the results were “incomplete or compromised . . Patt was provided ample opportunity to inspect and analyze the computer drives that were seized and are alleged to contain child pornography.” 

As this blog has previously lamented (see here), the discovery rights of defendants in criminal cases, unlike in civil cases, are oddly in inverse proportion to the high stakes at issue.  Three new decisions address discrete issues relating to pre-trial disclosure in criminal cases.  Two provide little comfort to defendants, but one – dealing with the disclosure of classified information – sets out some important procedures to balance the defendant’s right to a fair trial against the need to protect national security. 

Aref – Standard for Disclosure of Classified Material

In United States v. Aref, 2008 WL 2598018 (2d Cir. July 2, 2008) (a money-laundering prosecution that arose out of a terrorist sting operation), the Second Circuit addressed an issue of first impression: the standard for determining what relevant classified information a criminal defendant is entitled to receive during discovery. 

In Aref, the government had moved under Fed.R.Crim.P. 16(d)(1) (which authorizes a district court to issue protective orders denying or restricting discovery for good cause) and Section 4 of the Classified Information Procedures Act (“CIPA”) (which sets out procedures for “[d]iscovery of classified information by defendants”) for a protective order permitting it to withhold certain classified information that would otherwise be discoverable. 

On the defendants' appeal, the Second Circuit held that while the government may invoke the common-law state-secrets privilege underlying Section 4 of CIPA, that “privilege can be overcome when the evidence at issue is material to the defense.”  In Aref, the Court adopted the following three-step analysis – reviewable under an abuse of discretion standard – for a district court to follow in determining when the government’s privilege must give way in a case where classified information is at issue:

First, is the classified information discoverable?

Second, if it is, does the state-secret privilege apply because (1) there is “a reasonable danger that compulsion of the evidence will expose ... matters which, in the interest of national security, should not be divulged,” and (2) the privilege is “lodged by the head of the department which has control over the matter, after actual personal consideration by that officer”?

Third, if the information is both discoverable and privileged, then is it also “helpful or material to the defense,” i.e., not necessarily Brady material, but useful “to counter the government’s case or to bolster a defense”?

In Aref, conducting its own review of the classified information at issue and the government’s sealed submissions, the Court found no abuse of discretion and affirmed the district court’s findings.  Notably, in reaching its conclusions, the district court had held a series of ex parte conferences, not just with the government (as authorized under CIPA and approved by the Aref Court), but also with defense counsel “to assist the court in deciding what information would be helpful to the defense.”

Vilar – Early Production of 3500 Material Denied

United States v. Vilar, 05 Crim. 621, currently pending before Judge Sullivan in the Southern District, has already produced a very interesting search and seizure decision discussed here.  Now, in a new decision in this case, 2008 WL 2531195 (S.D.N.Y. June 22, 2008), the court has considered but rejected a creative motion from the defense requesting early disclosure of 18 U.S.C. § 3500 material (prior statements of government witnesses), so that the defense could determine whether evidence to be presented at trial is tainted by illegal seizure. 

First, the court reiterated, as it had pointed out in its earlier decision, that the defense had no right to litigate taint issues prior to trial.  Second, and more significantly, the court pointed out that it had no authority to compel early disclosure of Section 3500 material bearing on alleged violations of Fourth Amendment rights.  The language of Section 3500 itself only requires disclosure after the witness’s direct testimony, and the only carve-out of these mandates in Second Circuit case-law is for exculpatory or impeaching evidence under Brady, which concededly was not at issue here. 

The court concludes: “The Court expects the government to abide by its disclosure obligations under Brady as well as its pledge to produce Section 3500 material no later than two weeks prior to the trial in this action.”

Siraj – Early Disclosure of Statements Made to UC Officer Denied

Finally, in United States v. Siraj, 2008 WL 2669321 (2d Cir. July 9, 2008) (also a case involving a foiled terrorist plot), the Court addressed another issue of first impression: whether written police reports that memorialize non-interrogation oral statements made by a defendant to an undercover officer must be produced upon demand under Federal Rule of Criminal Procedure 16(a)(1)(B)(i) (which provides that upon a defendant’s request, the government must disclose to the defendant “any relevant written or recorded statement by the defendant”).  Answering in the negative, the Court reasoned that to hold otherwise would render other provisions of Rule 16 superfluous.  As the Second Circuit Blog points out, however, the defendant would at least have received these reports as last minute disclosures under 18 U.S.C. § 3500, and so could not claim unfair surprise.  Having them earlier, however, would certainly have helped the defense strategize for trial, and more importantly, may have encouraged more meaningful plea negotiations.

As an agent points out in United States v. Graziano, 07-cr-508 (JFB), 2008 WL 789886 (E.D.N.Y. March 20, 2008), computers can be repositories of one’s most private, even subconscious, thoughts.  Asked why he examined Internet history files when searching a defendant’s computer for gambling records, he explained they “help[ ] to give you what the user was thinking about . . . at this particular time.”  As a result, the agent uncovered and tagged an AOL search entitled “Arson RICO laws,” ostensibly for use in the gambling investigation, because RICO is “a federal statute that is used to prosecute illegal gambling offenses.”  In the end, however, it became key evidence in a parallel investigation that led to an indictment charging the defendant with arson of a competitor’s business.

The Computer Search

The defendant moved to suppress the search of the AOL search records as beyond the scope of the search warrant, which authorized a search for gambling records.  In denying the motion, the district judge reached two notable conclusions:

(a)     Overbreadth

First, the Court rejected the defendant’s challenge that the search warrant was overbroad because it failed to include a “search protocol,” delineating the particular computer files to be searched and the search terms that could be utilized.  Noting that “courts are ill-suited to micromanage in advance how the computer will be searched,” the court emphasized, however, that in seeking the warrant, “law enforcement must establish the basis for searching the computer and particularize the evidence being sought during such search.”

But computers can contain warehouse loads of documents, including the equivalent of boxes of photographs, personal e-mails and Internet search histories.  It is hard to see how any of this information could yield the specific documents sought in this search warrant: “records of bets, accounts and transactions, including betting slips, made in the course of illegal bookmaking activity.”  Thus, where is the prejudice from precluding law enforcement in advance from searching those files (and denying the agents an opportunity to turn the computer search into a general fishing expedition)? 
 
(b)        Reasonableness

The court also rejected the defendant’s argument that the manner of the search here was unreasonable, because the search involved a cursory review of every file, including Internet search files, and was not confined solely to obvious gambling files and documents.  Citing Supreme Court precedent that a brief review of apparently innocuous documents is permissible in searches for papers, the district court held that “it was entirely reasonable for the [forensic examiner] to engage in a cursory review of files and documents, by opening them, to determine whether they contained evidence of illegal gambling that was within the scope of the warrant.”

The court found that the bookmarking of the “arson RICO laws” search, once it had been uncovered, was reasonable given the agent’s credible testimony that he saved the evidence because gambling is prosecuted under the federal RICO statute (though, perhaps more plausibly, the evidence comes under the “plain view” exception to the warrant requirement).

The more critical issue is whether it was reasonable for the agent to search records containing Internet search histories at all (such files are listed with the designation “htm” or “html,” and are thus readily identifiable to the examiner in advance as Internet search history files).  The district court credited the agent’s “reasonable belief that evidence related to an illegal gambling operation might be contained in AOL search records.”  That may be true (searches for sports scores, etc.), but, as noted above, the search warrant here did not authorize a search for all documents related to an illegal gambling operation.  Rather, it specified particular gambling-related records that may be searched for and seized, documents that would not be contained in files with Internet search histories. 

The court does not address how Internet search records could reasonably be related to or produce the specific gambling records at issue.  (The case also does not address another interesting issue – raised by Judge Weinstein in United States v. Polizzi, 2008 WL 1886006 (E.D.N.Y. April 1, 2008) – that is, whether the searched files could have been independently obtained from AOL itself, as some courts have held that an Internet user can have no expectation of privacy in their Internet search histories).

Defendant’s Offer to Take a Polygraph

In the same decision, the court ruled on an issue of first impression in the Second Circuit - whether the defendant’s offer during an interview with the prosecutor to take a polygraph should be admitted at trial as consciousness of innocence.  Granting the government’s motion in limine to preclude the evidence, the found the offer had no probative value because it was not made in the context of an agreement that the results of the polygraph, whatever they were, would be admissible.  “Given the lack of adverse consequences from such an offer, there is no way to distinguish between the offer being made by an innocent defendant and the offer being made by a guilty defendant for purely strategic reasons.”

Advising Jury of Potential Penalties

Finally, in an interesting counterpoint to Judge Weinstein’s decision in Polizzi, the court ruled that the defendant could not cross-examine the cooperating witnesses as to the mandatory minimum sentences they had faced prior to their plea agreements, because “such reference would advise the jury as to the punishment the defendant is facing.”

Limiting instructions are the opium of judges, but of little solace to a defendant, like Douglas Brandon, charged with securities fraud in an indictment that also charged an entirely separate securities fraud scheme against some of his co-defendants.  A substantial portion of the trial, therefore, involved evidence of wrongdoing that had nothing to do with him, leading to the possibility of substantial spillover prejudice and dilution of an important exculpatory statement from a cooperating witness that Brandon was not a knowing participant in the fraud scheme charged against him.

At issue in his appeal and that of one of his co-defendants was the district court’s denial of their misjoinder/severance motions under Rules 8(b) and 14.  Affirming in United States v. Rittweger, 05-3600-cr, 2008 WL 1808260 (2d Cir. April 23, 2008), the Court found that the indictment satisfied Rule 8(b)’s joinder requirements – either a “common plan or scheme” or a “substantial identity of facts and participants” – where it charged that both fraud schemes involved efforts to induce customers of a certain investment entity to invest in a particular investment program, and involved an overlap of two other defendants.

Significantly, the Court rejected the defendants’ argument that they should only have been joined in the same trial where their separate and distinct conspiracies could have been charged as a single conspiracy.  “Provided that the defendants are ‘alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses,’ Fed.R.Crim.P. 8(b), members of two or more conspiracies may be joined as defendants even where the members have not been charged as participating in one overarching conspiracy.” 

In addition, the Court rejected the defendants’ efforts to broaden appellate review of the Rule 8 joinder question to encompass an analysis of the evidence adduced at trial.  “Under the plain language of Rule 8(b), the decision to join parties turns on what is ‘alleged’ in the ‘indictment.’ Fed.R.Crim.P. 8(b).  Events that transpire at trial are thus not relevant to the Rule 8(b) inquiry.” And in a footnote, the Court observes, without deciding, that “the plain language of Rule 8(b) does not appear to allow for consideration of pre-trial representations not contained in the indictment, just as the language of the Rule does not allow for the consideration of evidence at trial.” 

The defendants were then left with arguing the uphill battle that the court should have exercised its discretion to sever under Rule 14, a burden that requires a showing of “prejudice so severe that [their] conviction[s] constituted a miscarriage of justice.”  The Court dispatched this claim quickly, finding that the evidence was “straightforward” as to each defendant, and – you guessed it – the Court gave limiting instructions throughout the trial.

This is a very unfortunate ruling, since it effectively insulates the government’s joinder decision from appellate review – and indeed, in light of the Court’s footnote, greatly stymies the district court’s analysis of the issue – as long as the government manages to make sufficient, however tenuous, allegations in the indictment to satisfy Rule 8(b).  At  least, the court recognized itself the carte blanche it is granting prosecutors with this decision, since it “question[s] the government’s decision to try the two conspiracies together,” given the lack of connection between the two conspiracies and the two defendant-appellants, the improbability that evidence of one conspiracy would have been admissible as background in the trial of the other had the defendants been tried separately, and the dangers of “lumping together” minor participants with discrete roles with the more prominent members of overlapping conspiracies.  The Court goes on, in language worth quoting in all severance motions: “Rule 8(b) does not provide the government with limitless discretion to join defendants and does not absolve the government from an independent obligation to consider the unfairness that may result from joinder.”

The Court’s Brady analysis in this decision – although of little consolation to Brandon – is also worth quoting in future Brady motions.  A cooperating witness had corroborated Brandon’s defense – that he had been kept in the dark as to the fraudulent nature of the investment scheme.  The government waited until a week before trial to turn over the grand jury testimony of this cooperating witness, and moments before an agent testified before turning over the witness’s proffer notes – notes which included the witness’s statement that she had been instructed: “Don’t tell Brandon anything” because he was “there for marketing purposes.”  (Imagine what fabulous fodder for an opening statement that would have been . . .)  The court quite rightly rejected the government’s justification for the late disclosure, that it had concluded from other circumstantial evidence that Brandon had gleaned knowledge of the fraudulent nature of the scheme from other sources.  The Court pointed out: “[f]requently, the government comes into possession of evidence by witnesses who identify another perpetrator or who attempt to exculpate another defendant. The fact that the government may have some evidence that a particular defendant is guilty does not negate the exculpatory nature of the testimony of a witness with knowledge that a defendant did not commit the crime as charged.”

A trial is primarily a theatrical event, and theatre depends on drama, narrative, development of expectation, choreography and timing.   As psychological research of juries has established, jurors seek narratives about guilt and innocence as the trial unfolds.  Mid-trial, if they have already constructed that narrative, they may not be as motivated to deconstruct the pieces and put them back together again.  When key exculpatory evidence is withheld until mid-trial, the defendant’s theatrical capabilities – and thus, ability to influence the jurors’ conception of the narrative – are severely handicapped.  But an appellate court does not address ephemeral and intangible matters like theatricality and story-construction.  In this case, not surprisingly given the scope of its review, the Court found that there was no “reasonable probability” that the late disclosure resulted in a different outcome.  The Court notes dryly, “[f]irst and foremost, the district court admitted into evidence Allen’s grand jury testimony and Agent Lubman’s debriefing notes.”  Yes, eventually.  But trial lawyers know better.  Mid-trial disclosure is no-where near as useful to the defendant, since it denies effective use of the information throughout the trial, and in particular, in opening statements, when jurors have not yet constructed any particular narrative.
 
At least, in demands for cooperating witness’s grand jury testimony and proffer notes, defense practitioners should make sure to quote the Court’s conclusion that “the government should have acted in favor of disclosing the Brady material earlier, particularly when earlier discovery would not have had the potential to harm the witness. . . . After all, the government produced 200 boxes of materials in the fall of 2002 to defense counsel, but withheld until May 1, 2003 (the eve of trial) the evidence that the government counsel surely should have known defense counsel was most interested in.”

When does good lawyering become criminal conduct?  This thorny question is at the heart of several recent prosecutions of lawyers for conduct within their role as lawyers, sending a chill down the spine  of many a committed advocate: prosecutions such as those of Mayer  Brown partner Joseph Collins, Gen Re general counsel Robert Graham, Sidley Austin partner Raymond Ruble, Hollinger International general  counsel Mark Kipnis, Lynne Stewart, Computer Associates general counsel Steve Woghin, Rite Aid general counsel Franklin Brown, to name but, well, several.

The issue is highlighted in two recent SDNY cases, addressing the right to counsel.  In the first, United States v. Hashmi, 06 CR 442  (LAP), 2008 WL 216936 (S.D.N.Y. January 16, 2008), a case involving  charges of providing material support to Al Qaeda, the court held that  a defendant's right to counsel was not violated by a requirement that  the defense lawyer obtain a security clearance under the Classified  Information Procedures Act (CIPA) before engaging in discovery, nor by the requirement that the lawyer sign an acknowledgement (but not an  endorsement) of the Special Administrative Measures ("SAMs") placing  limitations on communications between the defendant and his attorneys.  

Some SAMs included preventing the defendant from speaking with the defense lawyer's representatives unless the lawyer was present, requiring the use of a pre-cleared translator, giving the BOP discretion to make attorney visits "non-contact," and preventing the defendant from communicating with news media.

Holding that the government "has a strong interest in preventing the irreparable harm of disclosing classified information" and "it is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation," the court held that "requiring a security clearance does not infringe on the Defendant's right to counsel of choice." 

What is not elucidated in the decision is why the defendant's suggestion of a protective order would not achieve the same result.  Implicit in the decision is the assumption that the lawyers who would not succeed in obtaining, or would not choose to obtain, a security clearance are not trustworthy.  In the absence of any statistical analysis - and indeed the litany of advocates recently prosecuted for  their advocacy includes many who would no doubt have sailed through a  security clearance process - the court's conclusion appears speculative and unpersuasive. 

As for the SAMs, the court concluded that they were "reasonably  related to legitimate penological interests" where there was evidence of the defendant's "willingness to provide aid to Al-Qaeda," "stated intention to overthrow the United States through whatever means necessary," and "threatening statements to British authorities."

The shadow over the entire issue, of course, is the prosecution of  criminal defense lawyer, Lynne Stewart, for, among other things, making a false statement in signing the SAMs affirmation, on the  theory that when she signed it, she had no intention of abiding by it.  In response to Hashmi's lawyers' concern that the SAMs affirmation similarly subjects him to potential prosecution, the court had this to  say: "counsel would do well to avoid the conduct that formed the basis of that attorney's conviction - smuggling messages from her client to  co-conspirators, despite acknowledging the SAMs that forbade her from doing so."

The court's comment, however, doesn't really address the problem, which is the potentially chilling effect of the prospect of prosecution on lawyers subject to SAMs restrictions.  There are many extremely able advocates who could not stomach being subject to SAMs restrictions, or, more critically, being subject to the penalties for  violating SAMs and thus, potentially, the whim of a zealous prosecutor who decides the lawyer has failed to comply with their previous SAMs acknowledgement.  These able advocates would absent themselves from the already small pool willing to defend defendants subject to SAMS to  begin with, a scenario with deeply troubling implications about the quality of representation for the some of the most villified defendants in our criminal justice system. 

It is hoped that when these issues reach the Second Circuit, either through this case or another, that the balance will tip in favor of ensuring excellent representatives for accused terrorists, unfettered by conscientious or practical objections to the requirements of undergoing security clearances or signing SAMs acknowledgements.

It is one of the great ironies of the law that in criminal cases, where the stakes are the highest, defendants have less discovery rights than in civil cases, and far less than those prosecuting them.  As the judge points out in United States v. Tucker, 05 CR 711 (SAS), 2008 WL 361127 (S.D.N.Y. February 7, 2007), "the government has far more opportunity to obtain evidence than does a criminal defendant," something, she points out, that is an example of the lack of symmetry in the criminal justice system, where "defendants will virtually always be outmatched in investigatory resources, funds, and time to prepare for litigation." 

In Tucker, the government had disclosed to the defense a redacted excerpt of a cooperating witness's phone call, which the defense maintained indicated that the witness may have been offered some inducement for his testimony. The defense now sought court authorization under Federal Rule of Criminal Procedure 17(c) for a subpoena ordering the BOP to produce all recordings of all telephone conversations involving each of the incarcerated cooperating witnesses, so that the defense could gather information on any inducements offered to any witnesses.  The government moved to quash.

The court granted the defense request, modifying it slightly to encompass calls made after the witnesses' initial contact with the government, and exempting calls between the witnesses and their attorneys.  The decision also includes an interesting review of the methods of discovery available to both sides in a criminal prosecution, and cases addressing the scope of Rule 17(c).

What is most notable in Tucker, is the court's rejection of the Nixon standard in the context of defense subpoenas issued to non-parties.  That standard, announced in United States v. Nixon, 418 U.S. 683 (1974), requires that the information sought in a Rule 17(c) subpoena must be relevant, admissible and specific, and because of the requirement of specificity, holds that a Rule 17(c) subpoena may not be used for a "general fishing expedition."  In Tucker, the court held that the Nixon standard should be confined to the situation where the government issues a Rule 17(c) subpoena, or where the defense issues a Rule 17(c) subpoena to the government. 

Instead of the Nixon standard, the less stringent Tucker standard requires simply that "the request is (1) reasonable, construed as 'material to the defense,' and (2) not unduly oppressive for the producing party to respond."  Because the Tucker standard requires a threshold showing of materiality (which was satisfied here by the defense's "articulable suspicion" that the information may be material to the defense), the court emphasized, she was not turning Rule 17(c) into a "broad discovery device."  Rule 17(c) subpoenas "must be reasonably targeted to ensure the production of material evidence."

Given the paucity of discovery mechanisms available to defendants in criminal cases, this is a very important decision expanding a criminal defendant's right to discovery.