Opinion
03-CR-929 (NGG).
June 29, 2006
MEMORANDUM ORDER
Defendant Vincent Basciano ("Basciano") seeks the release of material previously provided to the defense under 18 U.S.C. § 3500 ("3500 material") in the recent trial in this case. (Basciano Ltr. Br., at 1.) The United States ("Government") objects to this request. (Gov't Ltr. Br., at 1.) Although defendant Patrick DeFilippo ("DeFilippo") (together with Basciano, hereinafter referred to as "Defendants") has not submitted any briefing on this issue, he did argue in support of the release of the material at status conferences on May 17, 2006 and June 6, 2006. The court, therefore, reads DeFilippo as joining in Basciano's written request. Knowledge of the factual circumstances preceding this motion is presumed.
Background
Defendants were indicted in 2003 (DeFilippo) and 2004 (Basciano) for racketeering conspiracy and various substantive crimes including murder, loansharking, and gambling. The trial of the above-titled case began in January 2006. After four weeks selecting an anonymous jury and nine weeks of testimony and argument, the case was turned over to the jury on May 1, 2006. The jury returned a partial verdict on May 9, 2006. DeFilippo was convicted on five counts, including racketeering conspiracy, gambling, and loansharking, acquitted on two counts of loansharking, and the jury deadlocked on three counts related to the murder of Gerlando Sciascia. Basciano was convicted on one count of racketeering conspiracy, acquitted on one count of loansharking, and the jury was unable to reach a decision on one count of gambling. Although the jury found both defendants guilty of racketeering conspiracy, it was unable to reach a decision on several predicate acts, including the conspiracies to murder Gerlando Sciascia and Frank Santoro, and the solicitation to murder Dominick Martino. The court declared a partial mistrial on the portions of the indictment for which the jury did not return a verdict. At a status conference on May 17, 2006, the Government indicated its intent to retry the defendants on the charges where a verdict was not reached.
During the pretrial phase of this case, the Government requested, and the court granted, an order requiring the defense to keep 3500 materials private and for the return of the materials at the "completion" of the trial. (Memorandum of Jan. 3, 2006 ("MO 1/3/06,") at 28.) This request was made in response to the widespread dissemination of 3500 materials in a prior, related trial. After the Government indicated its intention to pursue a second trial, it requested the enforcement of the 3500 material order. Both defendants protested, requesting instead that the material be stored in their attorney's offices for safe-keeping until the completion of any retrial. The court has been storing the material since that time.
Analysis
The parties raise a number of issues that I will address. I will first consider whether my order of January 3, 2006 is enforceable at this time such that it would dispose of the Defendants' requests for release of the materials. Next I will examine the Jencks Act and Second Circuit precedent for further guidance.
1. January 3, 2006 Court Order
On January 3, 2006, I issued a Memorandum Order on a number of pre-trial issues. In reaction to the widespread dissemination of 3500 material from the related trial of Joseph Massino in 2004, and upon request of the Government, I ordered a protective order regarding the 3500 materials in this case. (See Tr. Oral Argument of Dec. 2, 2005, at 100; MO 1/3/06, at 28.) The order stated:
I hereby order that the distribution of any disclosed Jencks Act materials to any individual outside of the trial defendants, trial counsel and their paralegals or other legal staff is strictly prohibited and any such distribution will be met with sanctions. Moreover I order that all Jencks Act materials must be returned to the Government within forty-eight hours after the completion of the trial in this matter.
(MO 1/3/06, at 28.) As is discussed in more detail in the following section, the Jencks Act does not require the return or destruction of materials after use. While protective orders, such as the one issued in this case, are not encouraged, they are permitted in cases where legitimate security concerns support such an order. See, e.g., United States v. Rivera, 153 Fed. Appx. 758 (2d Cir. 2005) (finding that a protective order limiting defendant's access to 3500 material in detention to instances when counsel was present did not violate defendant's Sixth Amendment right to prepare a defense); United States v. Nicolapolous, 30 F.3d 381 (2d Cir. 1994); United States v. Garcia, 406 F. Supp. 2d 304, 307 (S.D.N.Y. 2005) ("Where there is a legitimate concern for witness safety, a protective order of the sort requested by the Government will facilitate the valuable practice of early and expansive disclosure of 3500 material while reducing the danger of obstruction of justice.").
In this case, a protective order was necessary for several reasons: (1) evidence of Defendants' participation in violent acts within a criminal conspiracy that has been involved in witness tampering; (2) the Government's plan to present witnesses whose locations were undisclosed; and (3) the wide distribution of 3500 material to members of the Bonanno organized crime family and members of the federal defense bar by the defendant Joseph Massino and his trial counsel, respectively, in a prior related case.
There is conflicting case law as to whether retrial after a mistrial should be deemed the continuation of the same trial or a new trial, triggering the language in the January 3, 2006 order. Within double jeopardy case law, there is sometimes reference to a "first trial" and a "second trial." See, e.g., United States v. Castellanos, 478 F.2d 749, 753 (2d Cir. 1973). However, jeopardy itself does not end when a mistrial is declared and continues through the selection of a second jury in the same case, suggesting that for some purposes initial and subsequent trials are essentially continuations of each other. Richardson v. United States, 468 U.S. 317, 325 (1984) (". . . a mistrial following a hung jury is not an event that terminates the original jeopardy to which the petitioner was subjected."). In fact, in his concurrence in Richardson, Justice Brennan interprets the Court's holding to be, "the court declares that despite appearances, petitioner's trial did not really end with the dismissal of the jury and that therefore his imminent retrial is not really a new trial at all." Id. at 327. In other areas of law, there are some orders that stay in place after a mistrial and some that must be decided anew. See, e.g., United States v. McKeon, 738 F.2d 26 (2d Cir. 1984) (holding that evidence from a mistrial is not necessarily admissible at retrial). Case law of this circuit does not offer a definitive answer on how to interpret language requiring the return of information at the "completion" of the trial. Arguably this trial reached an endpoint without completion and that is why a new, or second, trial is required.
The order at issue was granted after Basciano consented and DeFilippo agreed to the order proposed by the Government. (Tr. Oral Argument of Dec. 2, 2005, at 100.) There was no discussion or argument about the precise meaning of the order, either written or oral. The current circumstances were never articulated or foreseen. The common practice, however, appears to be for protective orders to require the defense to return sensitive material after the completion of all appeals in the case. See, e.g., Garcia, 406 F. Supp. 2d. at 307 ("Defendants and defense counsel shall return to the attorney for the Government or destroy all 3500 material and copies thereof, at the close of the trial or when any appeal has become final."); United States v. Williams, 2005 WL 664933 (S.D.N.Y) ("at the conclusion of all appellate proceedings, unless defense counsel can explain a need to retain the sensitive 3500 material further, defense counsel shall return the sensitive 3500 material to the Government, which is required thereafter to maintain a complete file of the material."); cf. United States v. Eppolito, No. 05-CR-192, slip op. (E.D.N.Y. Feb. 23, 2006) (Weinstein, J.) ("The defendants and the defense attorneys in this case are hereby ordered to return to the U.S. Attorney's Office for the Eastern District of New York all FBI 302 reports pertaining to interviews of Anthony Casso at the conclusion of the trial.").
The same trend is apparent with respect to protective orders of contraband Rule 16 material. See, e.g., United States v. Cadet, No. 05-CR-918, slip op., at 7 (E.D.N.Y. Mar. 29, 2006) (Glasser, J.) ("At the conclusion of the case against Defendant, including any appeals, any hard copies of [the contraband discovery material] shall be destroyed and the disk shall be returned to the Assistant United States Attorney"); United States v. Aldeen, No. 06-CR-31, slip op., at 8 (E.D.N.Y. Mar. 16, 2006) (Townes, J.) ("The defense shall return to the government or destroy any [discovery] material deemed contraband by this Court at the conclusion of this case."); United States v. Kirzhner, No. 02-CR-387, slip op., at 7 (E.D.N.Y. June. 12, 2002) (Garaufis, J.) ("At the conclusion of the case against Defendant, including any appeals, any hard copies of the images generated by the psychiatrist shall be destroyed and the disk shall be returned to the Assistant United States Attorney.") This provides further context, although I note that Rule 16 material is intended for trial preparation, and not simply cross-examination.
The relevance of the language used in protective orders issued in other cases is twofold. First, these other orders provide an illustration of the measured approach that courts in the Second Circuit generally find most appropriate for protective orders. This measured approach is supported explicitly in Williams, where the Southern District of New York granted in part and denied in part the government's request for a protective order of 3500 material. To wit, the court categorized 3500 material into "documents that could pose a threat to the safety of witnesses and their families if improperly distributed . . . and those which did not pose such a danger and/or had been available to defendants in connection with prior proceedings or otherwise."Williams, 2005 WL 664933 at *1. Such documents were given different levels of protection: the defendants could only view documents from the former category in the presence of their attorneys, but could independently have copies of documents from the latter category. Id.; see also Garcia, 406 F. Supp. 2d at 306 (similarly distinguishing the restrictions and ruling that the fact "[t]hat defendants have no right to extended independent review of 3500 materials in the privacy of their cells does not mean that the Court should ordinarily preclude such review.") (emphasis in original).
Second, however, these orders also show that this order's language, which all parties agreed to in this case, provides greater protection than other orders. It is not irregular for courts to provide for access to sensitive discovery material through appeals, and even beyond. Nonetheless, in this case, the Government requested language limiting access to 3500 material only for use at trial. Both defendants agreed to follow this relatively restrictive language at oral argument. (Tr. Oral Argument of Dec. 2, 2005, at 100.)
The court generally presumes that both the government and defense attorneys will act in good faith at all times. Thus this court is inclined to trust the parties in this case not to misuse any documents provided to them. In Williams, although the defendants themselves were not to have access to any 3500 material after the guilt phase, the defense attorneys were given access through the appellate process. Williams, 2005 WL 664933 at 1. Similarly, the court in Cadet, a case dealing with child pornography, ruled that "there is no greater risk in granting defense counsel a copy of the files for the preparation of its defense under a suitable protective order than exists in the government's maintenance and use of the files in preparation of its own case." United States v. Cadet, No. 05-CR-918, slip op., at 5.
Without trying to formulate a uniform definition of "trial" for the purposes of protective orders on 3500 material, I find for the limited purposes of this case only, that in the protective order I issued on January 3, 2006, "trial" was intended to refer to the entire guilt phase of this case. The mistrial and the retrial of Defendants are all segments of the overall case. The initial trial, the retrial, which will occur early in 2007, along with hearings, status conferences, and other matters up until sentencing, are all part of the guilt phase. Therefore, the guilt phase of this case has not terminated and the protective order's requirement respecting the return of the materials will not be enforced at this time.
Having decided not to require the return of the 3500 material at this time, the court next examines other statutory and case law on 3500 material to determine who is currently entitled to the 3500 materials.
2. Jencks Act
The Jencks Act, as codified in 18 U.S.C. § 3500, provides:
(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
A defendant's rights under 18 U.S.C. § 3500 are limited and are centered around the necessity of cross-examination. As there is no imminent cross-examination of any government witnesses, the Government has no statutory obligation to produce 3500 material to the defense at this moment.
Nonetheless, the question facing this court is not whether the Government should turn over 3500 material to the defense, but rather if the defense should be allowed to hold on to the 3500 material from the Defendants' first trial. I note that Section 3500 itself does not grant defendants the right to 3500 material in a situation such as this. However, in the normal course of a trial, the government has no absolute right to reclaim 3500 material after a trial has completed, or even after all appeals.See, e.g., Williams, 2005 WL 664933, at 1 (at the end of any appeals process, "defense counsel shall return the sensitive 3500 material to the Government, which is required thereafter to maintain a complete file of the material. The non-sensitive material can be, but need not be, retained by defendants' counsel indefinitely.") In this case, the defense does not have the right to retain any of the files indefinitely, as the court issued in the protective order earlier this year.
The court is likewise unaware of any statutory or case law articulating a right of the Government to re-possess 3500 material in the middle of a case. I therefore find that the Government does not have a "right" to the possession of the material at this time.
The Jencks Act clearly does not provide a roadmap for a situation such as the one facing the court at this juncture. Nor does it address the particular concerns of the individual parties. The Government has already properly and voluntarily disclosed the 3500 material in question to the Defendants. Basciano's main concern appears to be the filing of post-trial motions and preparation for the January trial, particularly as Basciano has retained new counsel. (Basciano Ltr. Br. of Jun. 12, 2006.) Yet, the Supreme Court has stated that 3500 material is "useful in impeaching a witness but was not intended to be utilized in preparation for trial." Palermo v. United States, 360 U.S. 343, 344 (1959); see also United States v. Percevault, 490 F.2d 126, 129 (2d Cir. 1974). The Government, on the other hand, maintains that the defense has no right to the material. (Gov't Ltr. Br. of June 16, 2006.) The Government is concerned that if the defense is permitted to hold on to material, it could result in dissemination of the 3500 materials to other defendants or defense counsel in related cases. (Id.) The Second Circuit provides for protective orders in cases where there are legitimate security concerns and I share the Government's concerns that the materials not be disseminated. Nonetheless, the dissemination that occurred after United States v. Massino did so in a case with different counsel and without a protective order. The attorneys in this case have done nothing to undermine the presumption that they will follow court orders to maintain the files safely within their offices.
Underlying the legal arguments of both parties is an undercurrent of strategic advantage that cannot be ignored. If the Government is concerned about the strategic advantage gained by the defense in having additional time to prepare for its case for this second trial, I note that a retrial following a deadlocked jury helps and prejudices both sides, as the Government has also seen a preview of the defense case. If Basciano, on the other hand, feels prejudice because his new counsel is the only lawyer on the case who was not present at the last trial, he must realize that he agreed to a change of counsel. Furthermore, the transcript of the initial trial is a public record and Basciano's new attorney may consult with his client and prior trial counsel.
Most persuasive to the court is the fact that the defense has no right to, or use for, the 3500 material at the current time. The Jencks Act certainly does not foresee any use of the disclosed materials following cross-examination. Furthermore, it is not even apparent which, if any, of the materials will be relevant in the second trial as the Government has not issued its witness list. The second trial will not cover all of the issues in the first trial, as the Defendants are not being tried for all of the same crimes.
In order to accomplish the objectives of the protective order in a way that does not compromise the rights of any party, I hereby amend the protective order as follows:
All 3500 material turned over to the Defendants during the first trial in this case will be stored under seal by the Clerk of the Court indefinitely. If and when the Defendants have good cause to do so, they may petition the court for access to particular material. Until that time, no party in the case will have access to the 3500 material at issue. At an appropriate time, in consultation with the parties, the court will address the disposal of all the materials.
SO ORDERED.