Opinion
02 Cr. 883 (DAB)
December 5, 2003
JAMES B. COMEY, Miriam E. Rocah, New York, NY, for the Government
Frederick P. Hafetz, New York, NY, for Defendant
OPINION
Defendant Solomon Kaplan ("Defendant" or "Kaplan") is charged in an eleven-count Indictment, and now moves for a bill of particulars, additional discovery, and to suppress certain evidence.
I. BACKGROUND
On March 1, 2002, a sealed criminal complaint was filed in this matter. (Rocah Aff. Ex. A.) On March 6, 2002, United States Magistrate Judge Lois Bloom, having been "satisfied that the affidavit(s) and any recorded testimony establish probable cause to believe that the . . . property described is now concealed" in Defendant's law offices, issued a search warrant for Defendant's law office. (Hafetz Aff. Ex. B.) The search warrant specified for seizure "files relating to the firm's representation" of a list of 137 individuals, who were listed by name. (Hafetz Aff. Ex. B Schedule A-B.)
The affidavit in support of the search warrant alleges that a cooperating witness sold to Defendant a Law Office, and transferred some 3,000 cases to Defendant. (Hafetz Aff. Ex. C.) The affidavit further alleges that "upon information and belief there probable cause [sic] to believe that there are presently concealed" in Defendant's law offices "evidence and instrumentalities of violations of federal law . . ." (Rocah Aff. Ex. B at 1.) In a section entitled "Special Procedures to Protect Privileged Materials from Disclosure," the affidavit in support states "there is probable cause to believe that the files and documents sought all relate to on-going fraud and, therefore, do not implicate the attorney-client privilege." (Rocah Aff. Ex. B Aff. at 27.) The affidavit in support details procedures, through which privileged materials that were not in furtherance of the fraud would be screened from review by the prosecution team by an "ethical wall" attorney, a lawyer in the United States Attorney's office who was not working on the prosecution of this case. (Rocah Aff. Ex. B at 27-29.) Pursuant to the Search Warrant, 71 files were seized from Defendant's law offices. (Rocah Aff. ¶ 5.)
Defense counsel states that, from public documents, they were able to identify the cooperating witness as Alexander Galkovich the lawyer that the Indictment states sold the law firm to Defendant. (Def. Bill of Part, and Disc. Mem. at 3.)
On July 8, 2002, the Government filed an eleven-count Indictment in this case. Count One charges Defendant with conspiracy to commit five acts, including mail fraud, wire fraud, false statements relating to health care matters, health care fraud, and witness tampering, in violation of 18 U.S.C. § 371. Counts Two through Six charge Defendant with mail fraud and use of a fictitious name and address, in violation of 18 U.S.C. § 1341 and 1342. Counts Seven and Eight charge Defendant with wire fraud and use of a fictitious name and address, in violation of 18 U.S.C. § 1343 and 1342. Count Nine charges Defendant with making false statements relating to a health care benefit program, in violation of 18 U.S.C. § 1035 and 1332. Count Ten charges Defendant with submitting false and fraudulent claims for insurance based on staged accidents, in violation of 18 U.S.C. § 1347 and 1332. Count Eleven charges Defendant with witness tampering, in violation of 18 U.S.C. § 1512 (b).
Count One of the Indictment alleges that on May 9, 2000, two unnamed co-conspirators ("CC-1" and "CC-2") traveled to Manhattan to stage an automobile accident with a cooperating witness ("CW") who was working under the supervision of the Federal Bureau of Investigation ("FBI"). (Indictment ¶ 7a.) Four additional unnamed co-conspirators ("CC-3," "CC-4," "CC-5," and "CC-6") allegedly traveled to Manhattan on May 17, 2000, to stage a second automobile accident. (Indictment ¶ 7b.) According to the Indictment, in May and June 2000, CC-1, CC-2, CC-3, C-4, CC-5, and others who were involved in the "staged" accidents of May 9 and May 17, 2000 went to a medical clinic (the "Medical Clinic") operated by two additional unnamed co-conspirators ("CC-7" and "CC-8") for "treatment" of their "injuries." (Indictment ¶ 7c.) The Indictment further alleges that on May 17, 2000, CC-8 paid to yet another unnamed co-conspirator approximately $6,000 to distribute to the participants in the May 17, 2000 staged automobile accident. (Indictment ¶ 7d.)
The Indictment alleges that on April 5, 2001, a copy of the police report regarding the May 9 staged accident was sent by facsimile from New York to New Jersey, and that on June 23, 2001, State Farm Insurance Companies sent through the United States mail letters regarding the allegedly fraudulent claims pertaining to the May 9, 2000 staged accident. (Indictment ¶ 7f-7g.)
According to the Indictment, on October 11, 2001, Defendant traveled to a law office located in Manhattan to complete documents relating to the sale to him of a law firm. (Indictment ¶ 7h.) The Indictment also states that on January 8, 2002, Defendant and others instructed a witness, who was cooperating with an investigation by the FBI, to lie about facts relating to, among other things, the operation of Defendant's law firm. (Indictment ¶ 7i.)
The Indictment alleges that from about January 2000 to February 2002, Defendant submitted false and fraudulent claims for insurance and health care benefits and services, based on staged automobile accidents and fictitious injuries claimed by individuals who had been in legitimate accidents. (Indictment ¶¶ 10, 11.) The Indictment further alleges that between June 1, 2000 and June 27, 2000, as part of a scheme to defraud insurance companies by submitting the fraudulent insurance claims, Defendant and others mailed from a law office two pieces of correspondence pertaining to the May 9, 2000 staged automobile accident, and received four other pieces of correspondence from State Farm Insurance Companies, acknowledging receipt of the allegedly fraudulent claims. (Indictment ¶ 8.) The Indictment further alleges that in furtherance of the same conspiracy, on June 5, 2000 and April 5, 2001, Defendant and other members of the conspiracy faxed from a law office in New York City to a car rental agency in New Jersey a police accident report pertaining to the May 9 staged automobile accident. (Indictment ¶ 9.)
The Indictment further alleges that from approximately July 31, 2001 through February 2002, Defendant and other members of the conspiracy persuaded and attempted to persuade a witness who was cooperating with the FBI to lie about facts relevant to a grand jury investigation of health care and insurance fraud. (Indictment ¶ 12.)
In discovery, the Government turned over to defense counsel approximately 33,000 pages of documents, approximately 25,000 of which appear to be material from approximately 64 case files that were seized from the Defendant's law firm, including,inter alia, client intake forms, handwritten notes, accident reports, medical records, transcripts of examinations, correspondence with insurance companies, and litigation documents. (Hafetz Aff. ¶ 8.) In addition, the Government has also turned over to defense counsel some 208 pages of transcripts of taped conversations. (Hafetz Aff. ¶ 9.) Defendant also received from the Government a 14-page Complaint, a 34-page Search Warrant Affidavit and two complaints filed against two of Defendant's former clients. (Gov. Mem. at 11-12.)
As discussed, supra, it is not clear exactly how many files are being held by the Government. The parties agree that 74 files were seized. (Campanella Aff. 9/19/03 ¶ 3; Gov. Mem. at 9; Def Suppr. Mem. at 3.) Defendant's affidavit states that discovery includes 64 of these case files. (Hafetz Aff. ¶ 8.)
However, the Government has provided lists of the seized files, identified by the client name(s) written on the outside of the files, with each list containing files that fit a given basis for the Government's assertion of the crime fraud exception. (Capanella Aff. 9/19/03, Ex. 1-6.) Taking account of the fact that a single file may fit into more than one of the Government's lists, (Capanella Aff. 9/19/03 ¶ 8), it appears the Government may have as few as 63 files (including fourteen files for which the Government is not asserting the crime-fraud exception); however, since it is also possible that there were multiple files with a single name, the total number of files is not certain.
II. DISCUSSION
Defendant now moves for various forms of relief. Defendant seeks an Order suppressing evidence seized from Defendant Kaplan's law office pursuant to a search warrant, and leads obtained therefrom. (Def. Notice of Motion at 1.) Defendant also seeks an Order directing the Government to file a bill of particulars. See id. Finally, Defendant seeks an Order directing the Government to provide: 1.) disclosure of evidence it seeks to introduce at trial pursuant to Fed.R.Evid. 404(b), 2.) witness names, 3.) identification of documents the Government will seek to introduce at trial, 4.)Brady/Giglio materials, and 5.) witness statements.See id.A. Motion to Suppress Evidence
Defendant moves to suppress client case files that were seized by FBI agents from Defendant's law office, and that Defendant alleges contain attorney-client and work product privileged documents. Because the Government argues that the crime-fraud exception applies and the materials are therefore not privileged, Defendant further requests that the Court Order: 1) the appointment of a Special Master, 2) a preliminary showing by the Government to the Special Master, based solely on non-privileged information, that a reasonable person would conclude that an in camera review of the privileged materials in each client file would reveal evidence to establish that the crime-fraud exception applies, 3) review by the Special Master of privileged documents in each client file for which the Government has satisfied its preliminary burden, to determine whether there is probable cause to believe that a crime or fraud was committed and that the attorney-client or work product privileged documents were intended to facilitate or conceal misconduct, 4) the Government to return to Defendant all privileged materials for which the Special Master does not find the requisite probable cause, and 5) suppression of any evidence derived from privileged materials that the Government may have improperly reviewed. (Def. Suppr. Mem. at 1-2.)
The Government argues that: 1) Defendant has not met his burden in demonstrating that the documents and information contained in the files are protected by either the work-product or attorney-client privilege, 2) 57 of the files fall within the crime-fraud exception to the attorney-client privilege and the work-product doctrine, 3) even within the 14 files for which the Government does not assert the crime-fraud exception, numerous documents are not privileged, and 4) the Government's procedures, which have been used and allegedly approved in similar cases in the Southern District of New York, are adequate to safeguard the applicable privileges. (Gov. Mem. at 13.)
The Government argued initially that its "privilege" team had determined that fifty-nine of the seized files related to the fraudulent accident cases, (Gov. Mem. at 25), and that in "an excess of caution," the Government was not seeking to view any of the arguably privileged materials in the remaining twelve files. (Gov. Mem. at 25.) Subsequently, the Government notified the Court that it does not "intend to argue" thatfourteen of the seventy-one seized files fall within the crime-fraud exception, because "the Government has elected out of an abundance of caution not to use these files at trial due to the lack of specificity of the cooperators' information with respect to these 14 files." (Campanella Aff. 9/19/03 ¶ 7.)
The Government cites five cases in which an "ethical wall" has been employed; however, there is no indication that this practice has been approved. See discussion, supra.
On September 4, 2003, this Court issued an Order, noting the lack of clarity in the Government's position that probable cause existed to believe that some of the seized files were in furtherance of a crime or fraud, but others were not. (9/4/03 Order at 1.) The Order directed the Government to submit to the Court and Defendant a chart setting forth six factors, referred to in the Government's factual submissions, that were used by cooperating witnesses to identify files covered by the crime-fraud exception. (9/4/03 Order at 2.) The Order further directed the Government to submit to the Court and the Defendant an Affidavit setting forth the criteria used by the cooperating witnesses to distinguish the 59 files that the Government argues are within the crime fraud exception from the 12 files for which the Government is not asserting the crime fraud exception. (9/4/03 Order at 2.) The Government was also ordered to describe with specificity what was done by the cooperating witnesses in their review of the seized files. (9/4/03 Order at 3.)
1. Defendant's Asserted Privileges
a. Attorney-Client Privilege
In general, the attorney-client privilege "forbids an attorney from disclosing confidential communications that pass in the course of professional employment from client to lawyer." United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989) ("Narrowly defined, riddled with exceptions, and subject to continuing criticism, the rule affording confidentiality to communications between attorney and client endures as the oldest rule of privilege known to the common law"). Because the attorney-client privilege "stands in derogation of the public's *right to every man's evidence, . . . it ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.'" Teamsters, 119 F.3d 210, 214 (2d Cir. 1997) (quoting In re Horowitz, 482 F.2d 72, 81 (2d Cir. 1573)).
The attorney-client privilege attaches: "(1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor . . ." In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1037 (2d Cir. 1984). "It is well settled that '[t]he burden of establishing the existence of an attorney-client privilege, in all of its elements, rests with the party asserting it.'"In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000),quoting United States v. Int'l Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997); see also United States v. Schwimmer, 892 F.2d 237, 244 (2d Cir. 1989). Furthermore, it is "[c]lear that subsequent disclosure to a third party by the party of a communication with his attorney eliminates whatever privilege the communication may have originally possessed, whether because disclosure is viewed as an indication that confidentiality is no longer intended or as a waiver of the privilege." In re Horowitz, 482 F.2d 72 (2d Cir. 1973).
Defendant argues that because "many of the documents in the files were based on conversations between the legal staff and the particular client," the attorney-client privilege applies to "many of the documents seized." (Def. Suppr. Mem. at 9.) In his affidavit, defense counsel affirms that the files include, inter alia:
client intake forms prepared by the firm's paralegals and handwritten notes by firm personnel based on interviews with clients, accident reports, medical reports, transcriptions of Examinations Under Oath, correspondence with insurance companies, and litigation documents such as verified complaints. Some of these items are marked with notations indicating the thought processes of the attorneys, their staff and the clients. Confidential information regarding the clients' inclination to settle is also included.
(Hafetz Aff. ¶ 8.)
Defendant's vague statement that "many of the documents seized" are privileged is far too broad for this Court to "strictly confine" application of the privilege, Teamsters, 119 F.3d at 214 (quoting In re Horowitz, 482 F.2d 72, 81 (2d Cir. 1973)); moreover, defense counsel's affirmation does not establish what material in the files, if any, contains communications that meet all the elements required for the privilege. Moreover, Defense counsel has not identified which, if any, materials in the seized files might be excluded from privileged status because of subsequent disclosure to third parties.
b. Work Product Privilege
The work-product privilege protects documents that were "created because of anticipated litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation."United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998) (analyzing work-product doctrine in the context of its codification for civil proceedings, Fed.R.Civ.P. 26(b)(3)). This standard protects materials that were prepared "because of" anticipated litigation, but not documents that were prepared "in the ordinary course of business or that would have been created in essentially similar form irrespective of litigation." Adlman, 134 F.3d at 1202-03.
Defendant argues that even though some of the documents in the seized case files were prepared by or disclosed to third parties, nonetheless the work product privilege protects them because "their selection and compilation in the case files reveals the legal strategy, evaluation of the case, and anticipated lines of proof to be relied on" by the Defendant. (Def. Suppression Mem. at 8.) While third-party or previously-disclosed materials that, by their organization or selection, reflect the thought processes of the attorney may be protected by the work product privilege, the Second Circuit has cautioned that the "selection of records for protection depends upon the existence of a real, rather than speculative, concern that the thought processes of . . . counsel in relation to pending or anticipated litigation would be exposed." Gould Inc. v. Mitsui Mining Smelting Co., 825 F.2d 676, 680 (2d Cir. 1987); In re Grand Jury Subpoenas dated March 19 and August 2, 2002, 2002 WL 31040322, at *6 (denying privilege for "materials assembled during routine investigations by counsel" since "the mere acquisition of documents from an unrelated third party does not by itself impose upon them the status of work product") (internal quotations and citations omitted).
Defendant here has provided argument, but no evidence, that the organization and selection of the unprivileged materials in the files that were seized from his law office in any way reflects the thought process of counsel in relation to pending or anticipated litigation.
c. Iron Wall
The Government has submitted the affidavit of Benjamin Gruenstein, an Assistant United States Attorney ("AUSA"). Mr. Gruenstein affirms that he was assigned to act as one of the "Wall Assistants," in order "to ensure that the prosecution team does not review any privileged materials in this case." (Gruenstein Aff. ¶ 2.) Mr. Gruenstein identifies the following categories of documents, which are contained in "most, if not all, of the files" and "are potentially subject to" the attorney-client and the attorney work-product privileges:
A. correspondence between employees of the Law Office and its clients, including: (1) status reports; (2) scheduling letters; and (3) requests for information from the client; and
B. information sheets, containing basic information about the clients and the facts of their case.
(Gruenstein Aff. ¶ 5.)
Mr. Gruenstein also found that "a small fraction" of the files contain the following additional potentially privileged materials:
A. court documents that do not appear to have been filed and thus are potentially attorney work-product
B. "file notes" and other stand-alone pages of notes that appear to be written by a lawyer or other employee of the Law Office; and
C. signed settlement authorization forms.
(Id.)
In addition, Mr. Gruenstein found the following "isolated documents and objects that are potentially subject to the attorney client and/or the work-product privileges":
A. one document containing a list of clients with the medical treatment each client received;
B. one map with extensive handwriting on it;
C. a notepad with notes; and
D. one document containing what appear to be draft deposition questions.
(Id.)
Thus, although Defendant has not established that the seized files contained privileged materials, the Government's own evidence alleges that the files contain materials that potentially fall within the attorney-client and the attorney work-product privileges.
2. Crime-Fraud Exception
Although conceding that materials in the seized files are potentially privileged, the Government argues these materials are subject to the "crime-fraud exception" to the attorney-client and work-product privileges, and therefore should not be suppressed. (Gov. Mem. at 23.)
Pursuant to the search warrant, the Government seized and kept 71 files from Defendant's office. The Government has notified the Court that it does not "intend to argue" that fourteen of the seventy-one seized files fall within the crime-fraud exception, because "the Government has elected out of an abundance of caution not to use these files at trial due to the lack of specificity of the cooperators' information with respect to these 14 files." (Campanella Aff. 9/19/03 ¶ 7.) These fourteen files in their entirety shall be returned to the Defendant immediately; the Government shall not use any of the contents of these fourteen files in its investigation or at trial.
The purpose of the protections accorded attorney-client communications and work product is to facilitate the rendering of sound legal advice; however, since "advice in furtherance of a fraudulent or unlawful goal cannot be considered 'sound,'" it is well settled that the attorney-client privilege and work product doctrine do not protect communications that further contemplated or ongoing criminal or fraudulent conduct. In re Grand Jury Subpoena Duces Tecum Dated September 15. 1983, 731 F.2d 1032, 1038 (2d Cir. 1984). Thus, the crime-fraud exception applies where a communication, otherwise protected by the attorney-client or work-product privileges, is made in furtherance of a crime or fraud. Clark v. United States, 289 U.S. 1, 15 (1933) (attorney-client); In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1038 (2d Cir. 1984) (attorney-client and work-product); In re Sealed Case, 676 F.2d 793, 812 (D.C. Cir. 1985) (attorney-client and work-product); In re John Doe Corp., 675 F.2d 482, 489-93 (1982) (attorney-client and work-product). More precisely, the crime-fraud exception excludes from the scope of the attorney-client and work-product privileges communications made in furtherance of a crime or fraud. In re Grand Jury Subpoena Duces Tecum Dated Sept. 15. 1983, 731 F.2d at 1038.
The parties here agree that, to gain disclosure of otherwise privileged materials under the crime-fraud exception, the Government must show that there is probable cause to believe that: 1) a fraud or crime has been attempted or committed, and 2) that the communications or materials in question were in furtherance of the fraud or crime. (Def. Memorandum at 10; Gov't Response at 19) (citing United States v. Jacobs, 117 F.3d 82, 87 (2d Cir. 1997)).
a. Probable Cause to Believe a Fraud or Crime Has Been Attempted or Committed
The Affidavit in support of the Search Warrant application states that a confidential informant, who worked at the Medical Clinic that handled "injuries" sustained by "victims" of faked "accidents," had told an FBI Agent that the Medical Clinic paid "victims" for their participation in staged accidents. (Rocah Aff. Ex. B ¶ 10a). The confidential informant told the FBI Agent that Defendant gave his business card to the informant, so that the informant could refer automobile accident cases to Defendant, and that Defendant's law firm began receiving case referrals from the informant's Medical Clinic. (Rocah Aff. Ex. B ¶ 10f.) The search warrant affidavit also states that another confidential informant, who worked at the law offices eventually acquired by Defendant, said that the law office was owned and controlled by the same individuals who operated the Medical Clinic, and said he knew the cases handled by the law office were fraudulent because the law offices' clients frequently did not know what their own "injuries" were, and that the informant had to prepare clients for interviews with the insurance examiners. (Rocah Aff. Ex. B ¶ 12a-d.) The affidavit states that the law offices were sold to Defendant shortly after the confidential informant's arrest. (Rocah Aff. Ex. B ¶ 12e.)
Probable cause may be established using affidavits as evidence.E.g. United States v. $1.5 Million Letter of Credit, 1992 WL 204357, *1,*6 (S.D.N.Y. 1992) (court found probable cause established by government through submission of affidavits of Special Agent and attorney.)
The Search Warrant Affidavit states that over 40% of the automobile accident cases handled by the law office were referred from the Medical Clinic, (Rocah Aff. Ex. B ¶ 21), and that after Defendant purchased the law office, it continued to operate under the control of the same individuals who operated the Medical Clinic. (Rocah Aff. Ex. B ¶ 22.)
This evidence is sufficient to establish probable cause to believe that a crime or fraud was committed at the Defendant's law offices. Subsequent to the Search Warrant, an Indictment finding probable cause to believe Defendant committed wire fraud, bank fraud, and health care fraud was returned by a Grand Jury.
b. Communications in Furtherance
To establish that the communications or materials in question are "in furtherance" of a fraud or crime, the Government must show "that the particular communication with counsel or attorney work product wasintended in some way to facilitate or conceal the criminal activity." In re Richard Roe. Inc. v. Richard Roe Inc.; et. al., 168 F.3d 69, 71 (2d Cir. 1999) (emphasis in original). This requires a showing that a communication was in furtherance of the crime or fraud and not simply related to the crime or fraud. United States v. Jacobs, 117 F.3d at 88. However, a fraudulent objective need not be established definitely; "there need only be presented a reasonable basis for believing that the objective was fraudulent." In re Grand Jury Subpoena Duces, 731 F.2d at 1039.
The Search Warrant Affidavit identifies by client name 137 accident files that were believed fraudulent. (Rocah Aff. Ex. B ¶ 25 Sched. B.) Pursuant to the Search Warrant, the FBI seized and kept 71 files from the Defendant's law offices. (Campanella Aff. 9/19/03 ¶ 3.) After the files were seized, an FBI Agent met with two of the Government's cooperating witnesses, identified as "the Attorney" and "CW-2." The Attorney was the original attorney for many of the cases for which files were seized, and was eventually directed by the conspiracy principals to sell the Law Offices to the Defendant. Agent Campanella reviewed the names of the clients listed on the face of each file with the Attorney and CW-2, and the police accident reports contained in the files. (Campanella Aff. 9/19/03 ¶ 6.) Based on the information provided by the Attorney and CW-2, the Government has identified six categories of files that were seized from the Defendant's law offices.
The police report, having been prepared by a third party, is not protected by privilege. However, it is not clear how Agent Campanella was able to obtain the police report from the seized files; since there had not yet been any determination of whether the crime fraud exception applied, Agent Campanella would not have been allowed to search through the seized files for individual police reports.
Category One consists of files bearing the names of clients who retained the Attorney to file an insurance claim, and the Attorney knew from conversations with the client, from face-to-face meetings with the client, and/or from discussions with other co-conspirators that the client was not injured and/or was involved in the fraudulent scheme at the time the claim was made. (Campanella Aff. 9/19/03 ¶ 6a.) Category Two consists of files bearing the names of clients that CW-2 recalled had been involved in a staged accident that CW-2 had helped arrange, and/or had received medical treatment although they were not injured. (Campanella Aff. 9/19/03 ¶ 6b.) Category Three consists of files that bear the names of persons who had been treated for more than one automobile accident in a short span of time, and/or had more than one automobile accident handled through the Attorney's law office during a short span of time. (Campanella Aff. 9/19/03 ¶ 6c.) Category Four consists of files that bear client names of individuals that CW-2 or the Attorney knew was a "runner" who staged automobile accidents. (Campanella Aff. 9/19/03 ¶ 6d.) Category Five consists of files bearing the names of persons that CW-2 or the Attorney knew was either a relative or friend of two principals in the alleged conspiracy. (Campanella Aff. 9/19/03 ¶ 6e.) Category Six consists of files bearing the names of persons CW-2 or the Attorney knew was either an employee of the Medical Clinic or of the Defendant's Law Office, or was a relative or friend of an employee of the Medical Clinic or of the Defendant's Law Office. (Campanella Aff. 9/19/03 ¶ 6f.)
According to one of the Government's confidential informants, "runners" are individuals who act as intermediaries between the medical clinics and the people who actually participate in the staged accidents. (Rocah Aff. Ex. B at 9.)
A number of the seized files fall into more than one of the six categories. (Campanella Aff. 9/19/03 ¶ 8.)
Since the Search Warrant was executed, the Government has developed further supporting probable cause to believe that potentially privileged materials in certain seized files were "in furtherance" of a crime or fraud. Two of the seized files bear the names of Nidal Jaber and Al Jaber, both of whom have been indicted by the New York State Attorney General on fraud charges relating to automobile insurance fraud. (Rocah Aff. Ex. F.) Nidal Jaber pleaded guilty to two counts of insurance fraud and grand larceny on April 14, 2003. (Campanella Aff. 9/19/03 ¶ 10.) Another seized file bears the name of Aleksey Prokopenko, who pleaded guilty to fraud charges similar to those at issue in this case. (Rocah Aff. Ex. H; Campanella Aff. 9/19/03 ¶ 9.) Three other seized files bear the name of Igor Kharchenko, who pleaded guilty to conspiracy to commit health care fraud on August 19, 2003, based on fraudulent insurance claims. (Rocah Aff. Ex. H; Campanella Aff. 9/19/03 ¶ 8.) Based on the Government's submission of this information, Defendant has withdrawn his suppression motion with respect to the files bearing the names of Igor Kharchenko, Aleksey Prokopenko, Bruce Lampert and Nidal Jaber. (Def. 9/25/03 at 1.)
From the Search Warrant Affidavit and the evidence generated since the search warrant was executed, there is ample independent, unprivileged evidence, sufficient for a reasonable person to find probable cause to believe that any potentially privileged materials in the files that the Government lists in Categories One, Two, Three, and Four were intended to facilitate criminal activity.
Because the seized files are listed by client name, the total number of files that fall within Categories One, Two Three, and Four is not clear from the Government's submissions. The Government lists names on files falling within each category, with each category listed separately. (Capanella Aff. 9/19/03, Ex. 1-6.) Taking account of the fact that a single file may fit into more than one category, (Capanella Aff. 9/19/03 ¶ 8), there may be as few as forty-nine files in Categories One through Four, since files listed in different categories with the same name may in fact be the same file. However, since it is also possible that there were multiple files with a single name, the total, number of files falling within Categories One through Four is not certain.
However, on the basis of the Government's current submissions, it is not apparent that the rationale for seizing materials in Categories Five and Six provide a "reasonable basis for believing that the objective was fraudulent." In re Grand Jury Subpoena Duces, 731 F.2d at 1039. As Defendant argues about Category Six,
it makes perfect sense that relatives or friends of employees of the law office would seek legal advice from the law office. If a person is injured in an accident, he would naturally ask his friend or relative who works in the law office for the name of an attorney who can handle the case. The employee would naturally suggest that the case be brought to the law office. Thus, the fact that a client of Mr. Kaplan's is a friend of one of Mr. Kaplan's employees is no evidence at all that such a person is engaged in fraud.
(Hafetz Letter of 9/25/03.)
This reasoning is equally applicable to Category Five, since the two principals of the conspiracy were also involved in the management and operations of the Law Office. (Rocah Aff. Ex. B ¶ 12a-d.) Thus, the Government has not established probable cause to believe that potentially privileged materials that fall solely within Categories Five and/or Six were "in furtherance" of a crime or fraud. Based on lists provided by the Government, files bearing the names Marina Feygelman, Nelly Levin, and Eduard Plikh fall solely within Categories Five and/or Six. Accordingly, these files in their entirety shall be returned to the Defendant immediately; the Government shall not use any of the contents of these files in its investigation or at trial.
c. In Camera Review
Defendant argues that to assist in determining which materials meet the requirements for the crime-fraud exception, the Court should appoint a special master or review the materials, in camera, to determine if they are excluded from the work product or attorney-client privileges. (Def. Suppr. Mem. at 15-16.) Defendant cites United States v. Zolin, 491 U.S. 554 (1989), in support of his position that in camera review should be employed in this case, to segregate privileged materials from those within the crime-fraud exception. However, Zolin and its progeny make clear that in camera review is a discretionary alternative to establishing the crime-fraud exception with independent evidence. See In re Sealed Case, 107 F.3d 46, 50 (D.C. Cir. 1997). Zolin does not require this Court to employ in camera review on these facts.
Given the Court's determination that independent evidence supports a finding of probable cause to believe that files in the Government's Categories One through Four and files bearing the names of individuals indicted or convicted of insurance fraud charges fall within the crime-fraud exception, in camera review is not necessary. (Rocah Aff. Ex. B. ¶ 31; Ex. E.)
Citing In re Search Warrant, 153 F.R.D. 55, 59 (S.D.N.Y. 1994) and United States v. Stewart, 2002 WL 1300059, *1, *6 (S.D.N.Y. 2002), Defendant argues that the law disfavors use by the Government of a "privilege" team to screen potentially privileged documents from the prosecution team. (Def. Suppr. Mem. at 14-16.) However, neither of the cases cited by Defendant controls the facts before this Court. In In re Search Warrant, 153 F.R.D. 55, 59 (S.D.N.Y. 1994), Judge Breiant concluded that the attorney client privilege was not waived where a law firm, whose client was the target of an investigation, provided documents to an AUSA who was acting as a "wall" with respect to privileged documents. In dicta, Judge Breiant noted that
reliance on the implementation of a Chinese Wall, especially in the context of a criminal prosecution, is highly questionable, and should be discouraged. The appearance of Justice must be served, as well as the interests of Justice. It is a great leap of faith to expect that members of the general public would believe any such Chinese wall would be impenetrable; this notwithstanding our own trust in the honor of an AUSA.153 F.R.D. at 59.
Moreover, the Supreme Court has noted that the alternative suggested by Defendant — in camera review — is not without its own problematic implications:
A blanket rule allowing in camera review as a tool for determining the applicability of the crime-fraud exception . . . would place the policy of protecting open and legitimate disclosure between attorneys and clients at undue risk. There is also reason to be concerned about the possible due process implications of routine use of in camera proceedings. Finally, we cannot ignore the burdens in camera review places upon the district courts, which may well be required to evaluate large evidentiary records without open adversarial guidance by the parties.United States v. Zolin, 491 U.S. 554, 571 (1989) (internal citations omitted).
In United States v. Stewart, 2002 WL 1300059, *6 (S.D.N.Y. 2002) the court addressed whether a Special Master or a government privilege team should review privileged materials,
in view of the special circumstances of [the] case — including the search of the office of a criminal defense attorney who represents defendants unrelated to any of the allegations in this case and the seizure of at least computerized information belonging to lawyers who are also unrelated to this case, and who represent clients unrelated to this case.United States v. Stewart, 2002 WL 1300059, *4 (S.D.N.Y. 2002).
Noting specifically that a search of the law offices of a criminal defense attorney raises Sixth Amendment concerns not otherwise present in the search of the offices of a civil litigation attorney, and noting the exceptional circumstances before it, in which privileged materials pertaining to unrelated criminal defendants and clients of other attorneys, for whom there had been no showing of probable cause of criminal conduct, the court in Stewart granted the defendant's request for a Special Master. Stewart, 2002 WL 1300059, *5.Stewart is of little aid to Defendant here, since in this case Defendant is a civil litigation attorney, the seized files are materials pertaining to civil cases, and the Sixth Amendment concerns implicated inStewart are clearly not present here.
Accordingly, neither Stewart nor In re Search Warrant require this Court to employ methods beyond those already used to safeguard potentially privileged materials from disclosure and review.
However, while it is apparent from a review of independent evidence available to this Court that the crime-fraud exception applies to files in Categories One through Four, it is also apparent that the procedures used by the Government in this case were of little use in protecting any privileged materials seized by the Government. It appears that the FBI case agent was given access to review materials from seized files even before it was determined whether or not the crime-fraud exception applied. From the Government's submissions, it also appears the FBI case agent — and not any member of the "ethical Wall Team" of Assistant United States Attorneys — made a determination that materials were not privileged because the crime-fraud exception applied, based on his review of file lists with cooperating witnesses. For a law enforcement agent involved with the prosecution and investigation of the case to have made determinations about whether or not materials are privileged conflicts with the procedures the Government affirmed to Magistrate Judge Bloom would be used in executing the search warrant, raises serious concerns about the admissibility of information gained in the investigation of leads developed as a result of review of materials that ultimately are determined to be privileged, and eviscerates any claim that an "ethical wall team" within the Government effectively screens the prosecution team from privileged materials.
See discussion, supra.
In his September 19, 2003 Affirmation, Agent Campanella affirms that "with respect to some of the files, I showed the cooperators the police accident reports contained in the file." (Campanella Aff. 9/19/03 ¶ 5.)
In his September 19, 2003 Affirmation, Agent Campanella affirms that, based on information provided to him by cooperating witnesses, "I believe that probable cause exists to establish that 57 of the 71 seized files pertain to fraudulent insurance claims and, therefore, are covered by the crime-fraud exception to the attorney-client privilege." (Campanella Aff. 9/19/03 ¶ 5.) In his Affirmation of January 10, 2003, Benjamin Grunstein, the ethical "Wall Assistant," makes no mention of any attempt to determine whether potentially privileged documents fall within the crime-fraud exception.
Although the Government cites five "recent publicly filed cases" in this district wherein an "ethical wall" has been employed, none of these cases resulted in opinions addressing the propriety of the use of ethical walls. Moreover, it is not clear that judges in the cases were even aware of the use of an ethical wall, since a review of court records does not show the practice was ever challenged by the defendants. Certainly this Opinion should be counted among thosedisapproving the Government's use of an ethical wall team to "protect" the attorney-client and work-product privileges or to determine whether the crime-fraud exception applies, where potentially privileged materials are turned over to the trial team and case agents before any challenge to those determinations can be raised by a Defendant and determined by a court.
In its Memorandum of Law, the Government cites United States v. Silvio Ramirez, et al., 01 Cr. 414 (KMW); United States v. Alien Wolf son. et al., 00 Cr. 628 (JGK); United States v. Ronald Perro, 00 Cr. 64 (KTD); United States v. Jeffrey Cohn, et al., 99 Cr. 807 (RWS); United States v. Zikorus, 99 Cr. 754 (BSJ). (Gov. Mem at 37 n. 17.)
B. Motion for a Bill of Particulars
"Rule 7(f) permits a defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense . . . Generally, if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required."United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987);United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988) (stating same standard and noting that "[t]he principles governing requests for a bill of particulars are well settled").
"Whether to grant a bill of particulars rests within the sound discretion of the district court." United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984). A "bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (quoting United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir. 1989)); see also United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999).
However, "[a]cquisition of evidentiary detail is not the function of a bill of particulars," Torres, 901 F.2d at 234, and in deciding a motion for a bill of particulars, "[t]he important question is whether the information sought is necessary, not whether it is helpful."United States v. Facciolo, 753 F. Supp. 449, 451 (S.D.N.Y. 1990). Thus, the Second Circuit has "consistently sustained indictments which track the language of a statute and, in addition, do little more than state time and place in approximate terms." United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973) (citing United States v. Fortunato, 402 F.2d 79, 82 (2d Cir. 1968), cert. denied, 394 U.S. 933 (1969)), cert. denied, 415 U.S. 985 (1974).
Moreover, a bill of particulars is not meant to be a tool to compel disclosure of the Government's case before trial. See United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir. 1974);United States v. Villanueva, No. 91 Cr. 976, 1992 WL 77573 (S.D.N.Y. Mar. 23, 1992); United States v. Facciolo, 753 F. Supp. 449, 451 (S.D.N.Y. 1990) (citing Torres, 901 F.2d at 234), aff'd, 968 F.2d 242 (2d Cir. 1992). Nor is it meant to require the Government to show how it will prove the charges, how the crimes charged were committed, United States v. Wilson 565 F. Supp. 1416, 1438-39 (S.D.N.Y. 1983), or the Government's legal theory of the case, Wilson, 565 F. Supp. at 1439; United States v. Shoher, 555 F. Supp. 346, 350 (S.D.N.Y. 1983), as the Government is not required to provide to Defendant information that would, in effect, provide the defendant with a pretrial preview of the Government's case. United States v. Simon, 30 F.R.D. 53, 55 (S.D.N.Y. 1962).
Nonetheless, a bill of particulars will be required even if the effect is disclosure of the Government's evidence or theories, if necessary to give the defendant enough information about the charge to prepare his defense. United States v. Barnes, 158 F.3d 662, 665 (2d Cir. 1998).
1. The Mail and Wire Fraud Counts
Count One of the Indictment alleges Defendant and others conspired to commit, inter alia, mail and wire fraud. Counts Two through Eight allege that Mr. Kaplan and others committed acts of mail and wire fraud. Each of Counts Two through Eight allege that the scheme involved "submitting fraudulent insurance claims for participants in staged automobile accidents and for fictitious injuries claimed by individuals who had been in legitimate automobile accidents . . ." (Indictment ¶¶ 8, 9.)
Defendant notes that the accidents allegedly staged on May 9, 2000 and May 17, 2000 — alleged as overt acts in Count One and referred to in Counts Two through Eight . . . are the only staged accidents specifically identified in the Indictment. Defendant concedes that if the charges in the Indictment were limited to fraud upon insurance companies based solely upon the two staged automobile accidents, then the Indictment would be sufficiently particularized since Defendant would know what the alleged fraud was, what the fraudulent documents were, and what was fraudulent about the documents. (Def. Bill of Part, and Disc. Mem. at 7-8.) However, because the Indictment refers to "fraudulent insurance claims," based on "staged automobile accidents" and "fictitious injuries claimed by individuals who had been in legitimate automobile accidents," resulting in harm to "insurance companies" and "other entities" that were allegedly defrauded, Defendant argues the Indictment indicates the Government will prove a case of fraud and conspiracy to defraud that is "much broader" than the two allegedly staged car accidents. (Def. Bill of Part, and Disc. Mem. at 8.)
Defendant argues the Government should be required to identify: 1.) the false or fraudulent documents alleged to have been mailed or transmitted in Counts Two through Eight, 2.) the false or fraudulent statements or pretenses allegedly made in furtherance of the fraudulent scheme alleged in Count One, and 3.) the victims of the fraud schemes.
In response to defense counsel's request for particulars, the Government advised defense counsel that its position was that each of the cases seized in the search was fraudulent; moreover, the Assistant United States Attorney refused to identify what was fraudulent in any of the seized files. (Hafetz Aff. ¶ 5-7.) However, subsequent to briefing of Defendant's motion and pursuant to this Court's Order of September 4, 2003, the Government provided on September 19, 2003 detailed information regarding its basis for believing each of the files seized in the search of Defendant's offices was within the crime-fraud exception to the attorney-client and work-product privileges. Specifically, for each seized file not suppressed by this Court, supra, the Government set forth a basis for probable cause to believe that the file was in furtherance of a crime or fraud. This provides Defendant with substantial insight into the Government's theory of how each client file is connected to the fraud charges in this case.
Moreover, although voluminous in page count, the bulk of the discovery is documents from files seized from Defendant's own law firm, (Hafetz Aff. ¶ 8); thus, as Defendant is apparently aware of the organization and contents of the case files the burden on Defendant of reviewing discovery is significantly lessened. Most of the case files pertain to individual cases and contain form documents — client intake forms, accident reports, medical records, correspondence with insurance companies, and litigation documents, (Hafetz Aff. at ¶ 8), that are presumably also found in the other files.
Thus, from the materials provided by the Government to Defendant, including the Indictment, discovery materials, and submissions responsive to this Court's Order of September 4, 2003, Defendant is equipped to discern the specific acts of which he is being accused,Bortnovsky, 820 F.2d at 575, as well as sufficient facts about the charge to prepare his defense. United States v. Barnes, 158 F.3d 662, 665 (2d Cir. 1998).
The cases upon which Defendant relies, United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988) and United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987), are easily distinguishable from this case. In United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988), the indictment charged the defendant with one count of RICO conspiracy and four counts of extortion offenses directed at a single company. The RICO conspiracy count alleged a pattern of racketeering activity and that the extortion offenses "included but were not limited to" the four extortion counts in the indictment. The defendants' request for a bill of particulars about the unspecified violations indicated in the "not limited to" language was denied, and at trial, the Government was allowed to introduce evidence of extortions directed at three companies that had not been named in the indictment. The Second Circuit reversed the defendants' convictions, finding it "simply unrealistic to think that a defendant preparing to meet charges of extorting funds from one company had a fair opportunity to defend against allegations of extortions against unrelated companies, allegations not made prior to trial." Davidoff, 845 F.2d at 1154. However, in Davidoff the Second Circuit specifically noted that 6,000 pages of wiretap application materials and transcripts of wiretapped conversations turned over by the Government to the defendant — wherein "oblique" references were made to the victims not alleged in the indictment but proven at trial — were inadequate to provide the defendant with sufficient notice of the charges, in part because the tapes provided defendant with only incomplete information.Id. at 1155. By contrast, the discovery turned over to Defendant here is organized into files and, pursuant to this Court's September 4, 2003 Order, the Government has provided specific bases for each file's connection to the fraud charges here. Thus, here the discovery provided Defendant, along with accompanying materials, provides sufficient information for Defendant to discern the charges against him.
In Bortnovsky the indictment charged the defendant with mail fraud arising from fraudulent insurance claims for staged burglaries, and provided a list of suspect pieces of mail, along with the approximate dates of mailing and destination addresses. Defense counsel in the case were provided with some 4,000 documents to inspect and copy; however, the indictment did not specify the dates of staged burglaries, and did not enumerate which of the documents had been falsified. The Second Circuit cautioned that the Government "did not fulfill its obligation merely by providing mountains of documents to defense counsel who were left unguided about which documents would be proven falsified or which of some fifteen burglaries would be demonstrated to be staged," and held that the district court erred by failing to grant a bill of particulars that was "vital to appellants' understanding of the charges pending and to the preparation of a defense and which would have prevented the Government in its attempt to proceed furtively." Bortnovsky, 820 F.2d at 575. Here, however, Defendant has not been left "unguided" with "mountains of discovery" — to the contrary, much of the discovery provided to Defendant here is organized into case files, the contents and organization of which are already known to the Defendant, and for each of which the Government has provided a basis for its connection to the charges against Defendant. Thus, clearly the burden on Defendant here to discern the charges pending and prepare a defense is far less than that on the defendant in Bortnovsky. Accordingly, Defendant's request for a bill of particulars as to the mail and wire fraud counts is DENIED.
2. The Health Care Fraud Counts
Counts Nine and Ten of the Indictment allege health care fraud. (Indictment ¶ 10.) The Government has not specified the identity of any "health care benefit program" that might have been defrauded by Defendant's alleged conduct, has not identified what statements allegedly made by Defendant were fictitious or false, or even which documents contained such false or fictitious statements. Instead, the Government argues that the Defendant has "already received an abundance of information," from the Indictment, the Complaint, the Affidavit in Support of the Search Warrant, transcripts of recordings of conversations involving Defendant and his alleged co-conspirators, and "thousands of pages of discovery." (Gov. Mem. at 44-46.)
For the same reasons as those governing the denial of particulars about the mail fraud and wire fraud counts, the Defendant has received sufficient information about the health care fraud charges to discern the particular acts of which he is being accused and to prepare his defense. Accordingly,
Defendant's request for particulars about Counts Nine and Ten is DENIED.
3. Witness Tampering
Count Eleven of the Indictment charges the Defendant with witness tampering. Defendant argues the Government should be required to identify the "facts relevant to the investigation" about which Defendant and others allegedly attempted to persuade an individual to lie. Defendant also argues the Government should be required to identify the "official proceeding" at which the individual was allegedly pressured to lie, or to identify "the communication to a law enforcement officer or judge of the United States related to the commission of a federal offense." (Def. Bill of Part, and Disc. Mem. at 17.) Relying on United States v. Trie, 21 F. Supp.2d 1, 21-23 (D.D.C. 1998), Defendant argues that, where the charges against a defendant arise from alleged false statements, there is no reason the Government should not indicate why the statements are false. Defendant errs in relying on Trie.
To begin, the court in Trie made specific note of the fact that, to assist with identifying the false statements alleged in the indictment, discovery provided to the defendant "amount[ed] to making available for inspection at a central location approximately 1. 9 million documents." 21 F. Supp.2d at 21 n. 1.2. By contrast, here Defendant has been provided with specific information about the charges of witness tampering, of a much more limited volume than the discovery provided in Trie. Defendant here has received from the Government: the sealed Complaint in this case, which identifies by name two persons who, together with Defendant, allegedly pressured the confidential witness to lie (Rocah Aff. Ex. A at 11); some 208 pages of tape transcripts of these meetings, (Hafetz Aff. ¶ 9); and representations made by the Government that its theory is Defendant violated both 18 U.S.C. § 1512(f) and 18 U.S.C. § 1512 (e)(1) by "attempting to persuade the Attorney to lie to the FBI in its ongoing grand jury investigation of the fraud scheme at the Medical Clinic and the Law Office, as well as to a federal judge in plea proceedings about the same subject matter." (Gov. Mem. at 50.) These materials provide Defendant and defense counsel far greater clarity about the charges against Defendant here than the open discovery of 1.9 million documents did for the defendant in Trie.
Moreover, whereas in Trie the indictment alleged that thedefendant had made false statements; here it is alleged that Defendant attempted to persuade another individual to lie. While it might have been difficult for the defendant in Trie, from voluminous discovery materials, to "identify the particular statements alleged to be false (and what about them is false)," Defendant here must identify from the Indictment, Complaint, and tape transcripts what statements he made that might give rise to a charge that he attempted to persuade a witness to make false statements.
Together with the Indictment, the Complaint, tape transcripts, and statements by the Government provide Defendant adequate information for him to "identify with sufficient particularity the nature of the charge pending against him, thereby enabling [him] to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense," United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987); moreover, Defendant here is not required to "waste precious pre-trial preparation time guessing which statements he has to defend against or which contributors may be witnesses against him at trial." Trie, 21 F. Supp.2d at 21.
Accordingly, Defendant's request for a Bill of Particulars on the Witness Tampering charges in Count Eleven is DENIED.
4. Identity of the Co-Conspirators
The Indictment does not fully identify Defendant's alleged co-conspirators. However, the Government has provided some particulars about Defendant's alleged co-conspirators in the Complaint, the Search Warrant Affidavit, and the Indictment, alleging Defendant conspired with nine co-conspirators, five of whom are named, plus "others known and unknown." Defendant argues he is entitled to particulars regarding the identity of his alleged co-conspirators. (Def. Bill of Part, and Disc. Mem. at 20.)
Courts in this district have noted that there is "no clear distinction among circumstances in which courts grant a request for the names of known unindicted co-conspirators and circumstances in which they do not."United States v. Nachamie, 91 F. Supp.2d 565, 572-573 (S.D.N.Y. 2000); see also United States v. Killeen, 1998 WL 760237, *5 (S.D.N.Y. 1998) (remarking that [c]ourts in this district have taken varying views as to the appropriateness of ordering the Government to provide the names of unindicted co-conspirators"). Thus, while the Government correctly states that courts in this Circuit have denied requests for identification of co-conspirators, see, e.g., United States v. Amendolara, 2002 WL 31368279 (S.D.N.Y. 2002), Defendant is also correct in stating that courts have ordered disclosure of the names of alleged co-conspirators. See, e.g., United States v. Bin Laden, 92 F. Supp.2d 225 (S.D.N.Y. 2000).
In deciding whether to grant a defendant's demand for the names of known unindicted co-conspirators,
courts should consider the following factors: (1) the number of co-conspirators; (2) the duration and breadth of the alleged conspiracy; (3) whether the Government otherwise has provided adequate notice of the particulars; (4) the volume of pretrial disclosure; (5) the potential danger to co-conspirators and the nature of the alleged criminal conduct; and (6) the potential harm to the Government's investigation. If there are a large number of co-conspirators and a long-running conspiracy, a defendant is more likely to be surprised by the identity of other co-conspirators, whom he may never have met. If the Government has failed to provide adequate notice of the particulars, or if the discovery has been voluminous, identification of known unindicted co-conspirators will help a defendant focus his investigation and prepare for trial. On the other hand, considering the potential danger to the co-conspirators and the risk of compromising continuing investigations allows a court to balance a defendant's need for the information against legitimate law enforcement concerns.Nachamie, 91 F. Supp.2d at 572-573.
Consideration of these factors weighs against requiring the Government to provide additional specificity to the Indictment.
The relatively limited breadth and scope of the conspiracy alleged weighs against requiring more specificity from the Government. As alleged in the Indictment, the conspiracy between Defendant and "others known and unknown," continued for two years, (Indictment at ¶ 11), and encompassed eight overt acts. (Indictment at ¶ 7.) Citing United States v. Lino, 2001 WL 8356, *13 (S.D.N.Y. 2001) (granting bill of particulars where "[t]he conspiracy alleged . . . involve [d] a large number of defendants, [was] wide-ranging in terms of the nature of the predicate acts and the amount of commerce affected, and [was] comprised of a number of schemes, some of which [we] re temporally removed from the main . . . scheme."), Defendant argues he is entitled to particulars about his co-conspirators' identities because he was, at most, a "late-comer" to the alleged conspiracy.
The facts of Lino emphasize that, in fact, the conspiracy alleged in this case is relatively narrow. The indictment inLino named twenty-three defendants in twenty-six counts, and encompassed one RICO enterprise, four conspiracies to commit securities fraud, wire fraud and commercial bribery, nine substantive securities fraud offenses, two money laundering conspiracies, a union pension fund fraud and illegal kickback conspiracy, and one count of witness tampering. The judge in Lino made special note of the fact that, in such a complex case, a defendant may be more likely to be surprised by the identity of an alleged co-conspirator whom he may never have met. The comparatively limited scope of the conspiracy alleged here does not suggest any potential for undue surprise that concerned the court in Lino.
While the volume of pretrial disclosure provided to Defendant might otherwise weigh in favor of particulars about Defendant's alleged co-conspirators, Nachamie, 91 F. Supp.2d at 571; Lino, 2001 WL 8356 at *13, the burden of the discovery is reduced because the bulk of the discovery consists of case files from Defendant's own law office — the contents and organization of which Defendant is aware, and because the Government has already set forth information about how the case files are related to the charges in the case. In addition, the Government has provided Defendant with transcripts of taped conversations. (Hafetz Aff. ¶ 9.)
Since Defendant has been indicted on one count of witness tampering, a grand jury has found probable cause that Defendant has threatened a potential witness against him. (Indictment ¶ 12.) Therefore, there is reason to believe that providing particulars to Defendant about his alleged co-conspirators could pose a risk to witnesses or other co-conspirators.
The Government has provided, in the Complaint, the identities of five of the eight alleged co-conspirators. In addition, the Government has provided transcripts to the Defendant of conversations Defendant allegedly had with co-conspirators. While further information might be helpful to Defendant, "[a]cquisition of evidentiary detail is not the function of a bill of particulars," Torres, 901 F.2d at 234; rather, in deciding a motion for a bill of particulars, "[t]he important question is whether the information sought is necessary, not whether it is helpful." United States v. Facciolo, 753 F. Supp. 449, 451 (S.D.N.Y. 1990).
In sum, the conspiracy alleged in the Indictment is relatively narrow in scope and duration, and involves relatively few co-conspirators; the discovery burden is reduced by Defendant's familiarity with it; and there is probable cause of danger to witnesses or co-conspirators. On these facts, four of the six factors set forth in Nachamie weigh against granting a Bill of Particulars about the identities of the alleged co-conspirators in this case. Accordingly, Defendant's request for a Bill of Particulars about Defendant's alleged co-conspirators is DENIED.
C. Motion for Additional Discovery
Defendant also moves the Court to compel: 1.) disclosure by the Government within 30 days of evidence of other or similar crimes, wrongs or acts upon which the Government intends to rely pursuant to Fed.R.Evid. 404(b); 2.) production of a witness list; 3.) a list of documents upon which the Government intends to rely at trial; and 4.) exculpatory and impeachment materials upon a judicially-imposed time line similar to that imposed in United States v. Lino, 2001 WL 8356 (S.D.N.Y. 2000).
1. Rule 404(b) Evidence
Under Rule 404(b), the Government must provide "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of" any evidence of other crimes, wrongs, or acts that the Government intends to introduce at trial. Fed.R.Evid. 404(b). Courts in this Circuit have held that two or three weeks notice is "reasonable;" however, a longer period may be appropriate, depending on the circumstances. See Nachamie, 91 F. Supp.2d at 577 ("a longer notice period is appropriate [where there is an] absence of any threat to the safety of prospective witnesses and the . . . Rule 404(b) evidence [is important to] this action") (quoting United States v. Livoti, 8 F. Supp.2d 246, 250 (S.D.N.Y. 1998)). Apart from a need to "give all parties and the Court time to brief and hear arguments on motions to preclude . . . evidence prior to trial," Defendant has identified no special circumstances warranting early production of Rule 404(b) materials. Accordingly, Defendant's request for early production of Rule 404(b) evidence is DENIED. See United States v. Falkowitz, 214 F. Supp.2d 365, 393 (S.D.N.Y. 2002) ("Obviously, every criminal defendant would find early production of Rule 404(b) materials to be of great assistance in preparing for trial. But the test concerns whether the evidence has particular importance in the action and whether there is any threat to the safety of prospective witnesses.").
2. Witness List
Defendant argues the Court should compel the Government to produce a list of witnesses upon whose testimony the Government intends to rely, 30 days prior to trial, "in order to permit the defendant an opportunity to prepare his defense." (Def. Bill of Part, and Disc. Mem. at 23-24.) The Government argues Defendant's request for disclosure of the Government' s witness list should be denied because it is too general, and because Defendant has not shown that disclosure of the Government's witnesses is both material to the preparation of his defense and reasonable in light of the circumstances of this case. (Gov. Mem. at 53-54) (citingUnited States v. Cannone, 528 F.2d 296, 301 (2d Cir. 1975);United States v. Torres, 1995 WL 261531, *12 (S.D.N.Y. 1995).
This Court has discretion to order disclosure of the identities of witnesses upon whose testimony the Government will rely at trial.United States v. Cannone, 528 F.2d 296 (2d Cir. 1975). A request for disclosure of witnesses may be granted where a defendant makes a specific showing that disclosure is "both material to the preparation of his defense and reasonable in light of the circumstances surrounding his case," and where such showing outweighs the government's grounds for resisting the request. Cannone, 528 F.2d at 301-302.
In evaluating the materiality and reasonableness of a request for a witness list, courts in this Circuit have evaluated whether (1) the offense alleged in the indictment involves a crime of violence, (2) the defendant has been arrested or convicted for crimes involving violence, (3) the evidence in the case largely consists of testimony relating to documents (which by their nature are not easily altered), (4) there is a realistic possibility that supplying witnesses' names prior to trial will increase the likelihood that the witnesses will not appear at trial, or will be unwilling to testify at trial, (5) the Indictment alleges offenses occurring over an extended period of time, making preparation of the defendant's case complex and difficult, (6) the defendant has limited funds with which to investigate and prepare his defense. United States v. Turkish, 458 F. Supp. 874, 881 (S.D.N.Y. 1978); see also United States v. Falkowitz, 214 F. Supp.2d 365, 394 (S.D.N.Y. 2002); United States v. Washington, 947 F. Supp. 87, 89 (S.D.N.Y. 1996).
Here, as Defendant notes, the of fenses alleged in the Indictment did not involve crimes of violence, the Defendant here was not arrested or convicted of crimes involving violence, and the evidence in the case will likely involve a significant number of documents, which by their nature are not easily altered. Thus, three of the factors weigh in favor of disclosing the witness list.
Apart from its argument that Defendant has not provided sufficient specificity in his request for disclosure of the witness list, the Government has made no showing or argument that disclosure of the witness list would increase the likelihood that the prosecution's witnesses might not appear at trial, or might be unwilling to testify at trial.
However, the fact that the Indictment contains a charge of witness tampering, "necessarily involved a finding by a grand jury of probable cause to believe that the crime had been committed," and is accordingly "sufficient to put the desirability of the discovery order into issue."United States v. Cannone, 528 F.2d at 302 (abuse of discretion for district court to grant, without explanation, discovery request for disclosure of witnesses' identities "despite the presence of specific evidence of the need for concealment and the absence of specific evidence of the need for disclosure").
Accordingly, in view of the fact that there has been a finding of probable cause to believe that Defendant attempted to tamper with a witness in an official proceeding, the Court DENIES Defendant's motion to compel the Government to disclose a list of witnesses at this stage in the proceedings.
3. Documents List
The Government has provided Defendant with some 33,000 pages of documents. (Hafetz Aff. ¶ 8.) Defendant argues that the Court should compel the Government to identify thirty days prior to trial which of document it intends to use at trial. (Def. Bill of Part, and Disc. Mem. at 24.)
Rule 16(a)(1)(E) requires simply that the Government disclose documents that are "material to preparing the defense," that the government intends to use "in its case-in-chief at trial," or that "was obtained from or belongs to the defendant." Fed.R. Grim. P. 16(a)(1)(E). Rule 16(a)(1)(E) does not expressly require the Government to identify which of the documents it has produced intends to use in its case in chief.
Defendant cites two district court cases in which the Government was ordered to identify the documents upon which it intended to rely at trial. United States v. McDonald, 2002 WL 2022215, *3 (E.D.N.Y. 2002) (although concluding that the Federal Criminal Rules do not require the Government to organize its documentary evidence, requiring the Government to identify documents upon which it intended to rely at trial); United States v. Upton, 856 F. Supp. 727, 746-47 (E.D.N.Y. 1994). However, neither of these cases is grounded in the version of Rule 16(a)(1)(E) that applied at the time.
In January 2003, the current Rule 16(a)(1)(E) was reworded and replaced Rule 16(a)(1)(C).
Rule 16(a)(1)(E) does not require the Government to identify which of the documents produced in discovery it intends to rely on at trial. Accordingly, Defendant's request for an Order compelling the Government to produce a list of documents upon which it intends to rely at trial is DENIED.
4. Brady, Giglio and Jencks Act Materials.
Defendant requests immediate disclosure of exculpatory materials,Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and disclosure of impeachment materials, Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), on the same schedule as that set forth in United States v. Lino, 2001 WL 8356 (S.D.N.Y. 2000). (Def. Bill of Part, and Disc. Mem. at 26.) In addition, Defendant requests disclosure of witness statements under the Jencks Act, 18 U.S.C. § 3500, at least 30 days prior to trial. (Def. Bill of Part, and Disc. Mem. at 28.)
The Government states that it recognizes its obligations underBrady, "is aware of no exculpatory material required to be disclosed under Brady or its progeny," and that "[s]hould any such material come to the attention of the Government, it will be disclosed promptly." (Gov. at 56-7.) In his Reply brief, Defendant accepted the Government's assurances. (Def. Reply Mem. at 24.)
III. CONCLUSION
For the foregoing reasons, Defendant's motion to suppress evidence seized from his law offices is GRANTED IN PART. The Government SHALL immediately return to Defendant the fourteen files that have been identified by the Government as not within the crime-fraud exception, the files bearing the names of bearing the names Marina Feygelman, Nelly Levin, and Eduard Plikh, and any files bearing names not listed in Categories One through Four.
Defendant Kaplan's motion for a bill of particulars and additional discovery is DENIED.
Counsel for the Government and Defendant Kaplan shall appear before this Court for a status conference on December 22, 2003 at 11:00 a.m. Pursuant to the Speedy Trial Act, 18 U.S.C. § 3161 (h)(8)(A), the period from the date of this Order until December 22, 2003 at 11:00 a.m. shall be excluded. The Court finds that such a continuance serves the ends of justice and outweighs the best interests of the Defendant and the public in a speedy trial.
SO ORDERED.