Opinion
06 Cr. 54 (SWK).
September 27, 2006
OPINION ORDER
On January 17, 2006, Kenneth Winters ("Winters" or "Defendant") was indicted on two counts of wire fraud in violation of 18 U.S.C. §§ 1343 and 2. On September 20, 2006, a grand jury sitting in the Southern District of New York issued a superseding indictment, which alleged two counts of wire fraud and one count of conspiracy to commit wire fraud. Essentially, the superseding indictment alleges that Winters and his co-conspirators sought to induce individuals, including an undercover federal agent, to invest millions of dollars in bogus, high-yield investment trading programs.
The Court now has before it two pretrial motions brought by the defendant. In the first, Winters requests at least four weeks' advance notice of any evidence the Government will seek to admit under Federal Rule of Evidence 404(b). In the second, Winters requests that the Court conduct an in camera review of certain documents seized by federal investigators in order to determine whether they are protected by the attorney-client privilege.
For the reasons stated below, the Court denies both motions.
I. Prior Bad Acts under Federal Rule of Evidence 404(b)
Under Rule 404(b), the prosecution is required to provide reasonable notice in advance of trial of evidence concerning other crimes, wrongs, or acts committed by the defendant that it intends to introduce at trial. Fed.R.Evid. 404(b). Although Rule 404(b) does not specify any minimum notice period, courts in the Second Circuit have routinely held that two weeks' notice is reasonable. See, e.g., United States v. Vega, 309 F. Supp. 2d 609, 617 (S.D.N.Y. 2004) (citing several cases). In conformity with this practice, the Government has promised to give the defendant two weeks' notice of any Rule 404(b) evidence it intends to introduce at trial.
The defendant nonetheless argues that more than two weeks' notice should be granted in this case because of the high likelihood that the Government will rely substantially on Rule 404(b) evidence, and the absence of any threat to witnesses posed by early disclosure. See United States v. Livoti, 8 F. Supp. 2d 246, 250 (S.D.N.Y. 1998); United States v. Nachamie, 91 F. Supp. 2d 565, 577 (S.D.N.Y. 2000). While the Court takes note that the complaint and search warrant application affidavit allege a pattern of fraudulent activity, most of which is not formally stated in the indictment, the Court is unwilling to speculate as to the prior bad acts' evidence that the Government will seek to introduce at trial. See United States v. Matos-Peralta, 691 F. Supp. 780, 791 (S.D.N.Y. 1988) (noting that "the evidence the government wishes to offer [under Rule 404(b)] may well change as the proof and possible defenses crystallize."). As a result, the Court sees no reason at this time to deviate from its traditional practice of requiring two weeks' advance notice of the Government's intent to introduce Rule 404(b) evidence.
Therefore, the Government is hereby ordered to give notice of the Rule 404(b) evidence that it intends to admit at trial at least two weeks before the trial begins. If upon communication of the Government's intent to introduce Rule 404(b) evidence the defendant finds that he has insufficient time before trial to object to such evidence and to have the Court decide his objections, see United States v. Livoti, 8 F. Supp. 2d 246, 250 (S.D.N.Y. 1998), the defendant may request additional time on those grounds.
II. In Camera Privilege Review
In the second motion before the Court, the defendant alleges that certain documents seized from his residence during the execution of a search warrant on July 6, 2005, are protected by the attorney-client privilege. These documents, totaling 115 in all, have been identified in a privilege log submitted to the Court by the defendant. The defendant requests that the Court conduct an in camera review of the documents in order to determine whether they are privileged, or appoint a special master for that purpose. On the other hand, the Government argues that a walled-off Assistant United States Attorney should be permitted to conduct an initial review of all documents identified as privileged in order to determine whether the Government objects to their classification as such.
Although the attorney-client privilege is essential to the proper functioning of our adversary system, see United States v. Zolin, 491 U.S. 554, 562 (1989), its protections are not absolute. See United States v. Stewart, No. 02 CR. 396 JGK, 2002 WL 1300059, at *5 (S.D.N.Y June 11, 2002). Rather, the attorney-client privilege must be balanced against competing public policies, including the public's interest in the enforcement of the criminal law. Id. In this case, the Court finds that the defendant's proposal for in camera review, though perhaps more protective of the privilege, does not adequately account for society's interest in the enforcement of its criminal law. See United States v. Grant, No. 04 Cr 207BSJ, 2004 WL 1171258, at *3 (S.D.N.Y. May 25, 2004).
The documents in question were gathered during the execution of a search warrant whose lawfulness and manner of execution have not, to this point, been challenged. The Government, having lawfully conducted the initial seizure of evidence, possesses a strong interest in prosecuting crimes revealed by the same. Id. at *2. In order to fully advance this interest, members of a Government privilege team should be permitted to review all allegedly privileged documents. Only in this manner can the privilege team acquire information necessary to challenge assertions of privilege. See id.
In addition, the Government's proposed employment of a "wall Assistant" adequately protects the defendant's asserted privilege. Id. In particular, the wall Assistant will not communicate any of the information learned through his document review to members of the prosecution team. More importantly, even if the wall Assistant determines that a particular item is not privileged, the defendant will at that time be permitted to make further submissions to the Court challenging the wall Assistant's determination.
As a result, the Court agrees with the Government's proposed appointment of a wall Assistant. This proposal shall be implemented in accord with the following procedures:
1. On or before October 6, 2006, the defendant shall communicate to the Government a list identifying all seized documents that are allegedly protected by the attorney-client privilege.
2. The Government shall then appoint a wall Assistant to conduct an initial review of these allegedly privileged documents. The wall Assistant shall be the only Government employee or agent permitted to view the content of the documents in question. In addition, the wall Assistant shall not communicate any information learned in the course of his document review to any person other than as permitted by this Order.
3. The wall Assistant's review shall be completed by October 13, 2006. At the conclusion of his review, the wall Assistant shall compile a list specifically identifying all documents, if any, which the wall Assistant believes are not protected by the attorney-client privilege. This list shall be filed with the Court and served on the defendant by October 13, 2006. All documents not on this list shall be immediately returned to the defendant.
4. The defendant will then have until October 20, 2006 to review the wall Assistant's determinations. At the conclusion of this period, the defendant shall serve on the wall Assistant and file with the Court any objections the defendant may have to the wall Assistant's determinations. If the defendant fails to object to the wall Assistant's classification of a document as non-privileged, such document will be deemed outside the protection of the attorney-client privilege.
5. After service and filing of the defendant's objections, if any, the wall Assistant and the defendant will have until October 27, 2006 to serve on each other and file with the Court papers setting forth the most appropriate means for resolving disagreements as to the wall Assistant's determinations.
SO ORDERED.