Opinion
Criminal No. 21-017 (FAB)
2023-04-05
UNITED STATES of America, Plaintiff, v. Sixto Jorge DÍAZ-COLÓN, Defendant.
Myriam Y. Fernández-Gonzalez, AUSA, United States Attorneys Office District of Puerto Rico, San Juan, PR, Michael Nicholas Lang, United States Department of Justice, Criminal Division, Washington, DC, for Plaintiff. Rafael F. Castro-Lang, Castro & Castro Law Office, San Juan, PR, for Defendant.
Myriam Y. Fernández-Gonzalez, AUSA, United States Attorneys Office District of Puerto Rico, San Juan, PR, Michael Nicholas Lang, United States Department of Justice, Criminal Division, Washington, DC, for Plaintiff. Rafael F. Castro-Lang, Castro & Castro Law Office, San Juan, PR, for Defendant.
OPINION AND ORDER
BESOSA, District Judge.
Before the Court is defendant Sixto Jorge Díaz-Colón ("Díaz")'s motion to set aside the protective order issued on January 29, 2021. (Docket No. 373.) For the reasons set forth below, Díaz's motion is MOOT.
I. Background
The jury returned a guilty verdict on February 3, 2023, convicting Díaz of attempted extortion in violation of 18 U.S.C. §§ 1951 and 2 (count one), interstate extortion in violation of 18 U.S.C. §§ 875(d) and 2 (count two), and destruction of records in a federal investigation in violation of 18 U.S.C. § 1519 (count three). (Docket No. 365.) The Court issued two protective orders at the inception of this litigation "as a cautionary measure to protect the rights of all parties and to preserve the integrity of all future proceedings." (Docket No. 10 at p. 1; Docket No. 20.)
II. The First Protective Order
On January 29, 2021, the Court enjoined the parties from "divulging, talking to, or discussing with the press, media and public, including without limitation, through social networks, any information other than that entered without restriction on the docket or disclosed in open court, relating to the facts of [this] case." (hereinafter, "first protective order"). (Docket No. 10 at p. 1.) The first protective order remains in force "from the date of its execution until the conclusion of trial." Id. at p. 2. This expiration clause is unambiguous. A perfunctory review is sufficient for the parties to decipher its meaning. Because the prohibitions set forth in this order are no longer in effect, Díaz's motion to set aside the first protective order is MOOT. (Docket No. 373.)
Because the first protective order is moot, Díaz's motions requesting a judgment of acquittal and new trial, Docket Nos. 341 and 384, need not be restricted to "selected parties." Accordingly, the Clerk of the Court SHALL grant the public access to these docket entries.
III. The Second Protective Order
On February 20, 2021, the Court issued a protective order pursuant to Federal Rule of Criminal Procedure 16(d)(1) ("Rule 16(d)(1)") (hereinafter, "second protective order"). (Docket No. 20.) This order provides in pertinent part that:
All Discovery Material shall be used solely for the purpose of conducting pretrial, trial, and appellate proceedings in this action and for no other purpose whatsoever. In no event will the Defense Team disclose, directly or indirectly, Discovery Material or the substance thereof to anyone, including the media (excepting any disclosures that may occur during public proceedings at a hearing, trial, or appeal in connection with this matter), except as provided herein. The use of Discovery Material at trial or at any pre- or post-trial hearing will be resolved at the time of the trial or hearing in question.Id. at p. 2. The second protective order does not contain an expiration clause.
According to the United States, Díaz's motion to rescind the first protective order is a mere "subterfuge for the defendant to begin disclosing to the press discovery materials that were not presented at trial." (Docket No. 388 at p. 4.) By his own admission Díaz has, in fact, disseminated discovery material to the press in violation of the second protective order. In an interview conducted on the courthouse steps during jury deliberations and in the presence of counsel, Díaz stated:
When I - when the evidence arrives and we started see [sic] gossip and gossip and gossip and gossip and gossip, I called like three journalists - like three journalists. My people of trust told me, 'You need to know this in confidence, in confidentiality. Since you can't literally, talk, you have a gag order . . . I believe this female journalist, this male journalist, and this female journalist are high-level, serious, people that you can call to see the evidence,' so they see the trashy evidence, so they see - look - so you see how the FBI accused me of being Russian, that I have conversations with Putin. And, what is the evidence? My Puerto Rico driver's license. It's disgusting. The evidence is disgusting. To the three journalists that we called, the three, cowards. Three cowards that ignored me. 'Oh, we could give you an interview.' Look, lady, I don't want an interview. What I want is for you to see the evidence so you see with your own eyes - because I think you have a brain, I didn't know you are a coward, but I believe you have a brain, for you to say, 'Wow, Sixto! Wow, what is this? They are accusing you of - of - of one thing and, the closest thing is your driver's license? That is the evidence?' Brother, what I'm facing is not for children, it's not for children. The evidence are [sic] imaginary. The evidence is imaginary. And I hope that the jury not only has seen that the evidence is a disgusting imagination of the Prosecutors, but I also hope that the jury has been - has seen how Judge Besosa hindered the truth from being shown. I have nothing else to say.Docket No. 388, Ex. 1 at pp. 2-3 (emphasis added). This constitutes a blatant violation of the first protective order, and a contemptuous disregard for this Court's authority. (Docket No. 10.) That Díaz provided discovery material to three journalists "in confidence" demonstrates that the second protective order is a necessary prophylactic measure. (Docket No. 388, Ex. 1 at p. 1.)
Díaz moves to "make public some of the discovery material used/excluded during trial." (Docket No. 391 at p. 11.) He sets forth three arguments in support of this request. First, Díaz invokes "the First Amendment right of freedom of expression and the right of the press to keep the public informed about government misconduct, and any other exception . . . to disclose Grand Jury transcripts excerpts containing false and perjured testimony." Id. at p. 13. Second, Díaz suggests that Federal Rule of Criminal Procedure 6 is overly broad, affording grand jury transcripts unnecessary protection. Id. at pp. 9-11. Third, he alleges that the "United States wants to destroy [the] evidence." Id. at p. 3. These arguments are meritless.
A. The Public Has No Right to Access Criminal Discovery
Federal Rule of Criminal Procedure 16(d)(1) ("Rule 16(d)(1)") provides that "[at] any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief." Fed. Crim. P. 16(d)(1). "[A] finding of good cause must be based on a particular factual demonstration of potential harm, not on conclusory statements." United States v. Padilla-Galarza, 990 F.3d 60, 77 (1st Cir. 2021) (citation and quotation omitted); see United States v. Wecht, 484 F.3d 194, 211 (3d Cir. 2007) (holding that "[broad] allegations of harm unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing"). This Court possesses "wide latitude in the management of discovery," including the issuance of protective orders. Danny B. v. Raimondo, 784 F.3d 825, 834 (1st Cir. 2015).
Díaz cites Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), for the proposition that trials are public endeavors. (Docket No. 391 at p. 9.) This argument is a non-sequitur, disregarding a critical distinction between discovery and trial evidence.
The Rhinehart court held explicitly that "pretrial depositions are not public components of a civil trial." 467 U.S. at 33, 104 S.Ct. 2199. The First Circuit Court of Appeals reaffirmed this principle in Anderson v. Cryovac, holding that the public has no right to access "documents submitted to the court in connection with discovery proceedings." 805 F.2d 1, 9 (1st Cir.1986). This distinction is applicable in the criminal context, shielding material such as grand jury testimony from public view. See United States v. Kravetz, 706 F.3d 47, 54 (1st Cir. 2013) (holding that "there is no tradition of [public] access to criminal discovery") (citing United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986) ("Discovery, whether civil or criminal, is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation.")); United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985) (noting that Federal Rules of Criminal Procedure instructs that the United States "furnish [discovery] to the defendant," negating the presumption of public access to this material); United States v. Carriles, 654 F. Supp. 2d 557, 572 (W.D. Tex. 2009) (citing Rhinehart for the proposition that criminal discovery is private, granting the United States' motion for a protective order).
Precedent interpreting Federal Rule of Civil Procure 26 is relevant to the Rule 16(d)(1) analysis. See, e.g., United States v. Swartz, 945 F. Supp. 2d 216, 219 (D. Mass. 2013) (holding that "it is appropriate to analyze the 'good cause' requirement under the criminal rules in light of precedent analyzing protective orders entered in civil cases") (citation omitted).
Díaz cites extensively to precedent involving the public's right to access material adduced at trial, suppression hearings, and other proceedings. (Docket No. 391 at p. 9.) These authorities are irrelevant. Unlike proceedings held in open court, the exchange of discovery between adverse parties is not a public occurrence. Because the second protective order concerns discovery material, public access is an irrelevant consideration. See Docket No. 20 at p. 1 (defining "Discovery Material" as "all documents and electronically-stored information disclosed by the government to the Defense Team as Jencks material or otherwise during discovery in this case").
B. Grand Jury Materials are Secret
Díaz invokes "his right to disclose Grand Jury transcripts." (Docket No. 391 at p. 13.) Defense counsel is an experienced practitioner, fully aware that this statement is incorrect and inconsistent with well-established law. To support this claim, Díaz cites United States v. Hogan, an inapplicable case pertaining to the dismissal of an indictment due to "flagrant and unconscionable" acts by federal prosecutors. (Docket No. 391 at p. 13) (citing 712 F.2d 757, 762 (2d Cir. 1983)).
"Since the 17th century, grand jury proceedings have been closed to the public." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 n.9, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); Lepore v. United States, 27 F.4th 84, 87 (1st Cir. 2022) ("Unlike an ordinary judicial inquiry, where publicity is the rule, grand jury proceedings are secret.") (quoting Levine v. United States, 362 U.S. 610, 617, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960)). Grand jury proceedings are governed by Federal Rule of Criminal Procedure 6(e). This rule provides that "[r]ecords, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent unauthorized disclosure of a matter occurring before a grand jury." The Court may authorize disclosure in certain circumstances not relevant to this litigation. See Fed. R. Crim. P. 6(e); Lepore, 27 F.4th at 86 (holding that "a federal court does not have the authority to order the release of grand jury records based on a finding that historical interest in [these] records outweighs any countervailing considerations," but declining to decide whether Rule 6(e) "exhausts the universe of possible justifications for disclosing" secret material).
Díaz conflates grand jury material, discovery, and trial evidence, setting forth an aimless stream of inapposite precedent. For instance, on page 10 of his reply, Díaz refers to disclosure of grand jury testimony, followed immediately by case law concerning disclosure of discovery, ending with an allusion to disclosure of "material introduced at trial." (Docket No. 391 at p. 10.) The standards of disclosure for trial and discovery are inapplicable in the Rule 6(e) context. Because Díaz provides no reason to overcome the presumption of secrecy, the grand jury materials SHALL not be disclosed. See United States v. McMahon, 938 F.2d 1501, 1504 (1st Cir. 1991) ("The Supreme Court has repeatedly recognized the importance of secrecy in grand jury proceedings even after . . . the grand jury has concluded its function.") (citation and quotation omitted).
C. The Evidence Adduced at Trial Cannot be Destroyed
Díaz repeats the following phrase ad nauseam: "The United States wants to destroy this evidence." (Docket No. 391 at pp. 3-6.) The evidence that Díaz seeks to preserve includes inter alia recorded conversations, Telegram chats, documents from the Puerto Rico government, and "items" produced in discovery. Id. The United States introduced this evidence at trial. The record is preserved for appellate review and available to the litigants. Indeed, Díaz cites trial transcripts containing evidence susceptible to alleged destruction. Id. at p. 3. Allegations that the United States is attempting to destroy evidence are absurd. Accordingly, the Court will disregard these specious statements.
D. The Second Protective Order Shall Remain Applicable to All Parties in this Litigation
All parties remain subject to the second protective order. (Docket No. 20.) Violations of this order "may be punishable by contempt of court, or by whatever sanction the Court shall deem just." Id. at p. 4.
The Court issued a standing order on March 4, 2003, providing that the "availability and use [of Jencks statements] shall be limited to the duration of trial." In re Jencks Act Discovery Material, Misc. No. 03-021 (D.P.R. Mar. 4, 2003) (J., Laffitte). Pursuant to this order, defense counsel SHALL file a "certification of return to the United States of all copies of grand jury material produced to [Díaz] under 18 U.S.C. § 3500." Id. (emphasis in original); see Poliquin v. Garden Way, 989 F.2d 527, 535 (1st Cir. 1993) ("Where the district court does protect material during discovery, it is common to provide, as the magistrate judge did here, for post-trial protection including the return or destruction of protected material.").
IV. Order to Show Cause
Defense counsel is required to provide zealous representation. Allegations of misconduct without a basis in fact exceed the bounds of legitimate advocacy and are, themselves, suspect. See, e.g., United States v. Dubón-Otero, 98 F. Supp. 2d 187, 192 (D.P.R. 2000) (censuring an attorney for repeated accusations of government misconduct, noting that "zealous advocacy does not entail personal attacks against opposing counsel") (Fusté, J.). Not a scintilla of evidence suggests that the United States acted improperly before the grand jury or at trial. Díaz avers, however, that:
In an attempt to coverup a cloud of questionable ethics and judgment involving F.B.I. Special Agents Juan Carlos López-Velázquez, Miguel E. Rodríguez and Mariela Lajara and Assistant United States Attorneys Timothy Henwood, Myriam Fernández and Michael Lang in government misconduct involving the solicitation of false testimony and knowing presentation of perjured testimony before the Grand and Petit Trial Jury regarding the testimony of witnesses FBI S/A López, Lydmarie Torres and Anthony Maceira, the United States is now asking this Court to authorize the destruction of evidence proving how they interrupted the truth-seeking process in this case and avoid the press exposure their misconduct.(Docket No. 391 at p. 12.)
In the Opinion and Order issued on January 10, 2023, this Court placed Díaz on notice. (Docket No. 269.) Any accusation of prosecutorial misconduct by the United States must enumerate with specificity: (1) the allegedly wrongful act or omission; (2) the prosecutors and other government agents involved; and (3) the legal basis upon which he relies to argue that the act or omission constitutes misconduct. Id. at p. 15. The recent allegations of prosecutorial misconduct are not specific. (Docket No. 391.) That, Mr. Díaz has never done.
V. Conclusion
For the reasons set forth above, Díaz's motion to set aside the first protective order issued on January 29, 2021 is MOOT. (Docket No. 373.) The second protective order issued on February 12, 2021 remains in force. The parties continue to be prohibited from disclosing any discovery material not utilized during trial to third parties, including the press. (Docket No. 20.)
Defense counsel SHALL file a certification of return to the United States of all copies of grand jury material produced to Díaz pursuant to 18 U.S.C. § 3500 no later than April 21, 2023.
The Clerk of the Court SHALL grant the public access to Díaz's motions for judgment of acquittal and new trial. See Docket Nos. 341 and 384.
IT IS SO ORDERED.