United States v. Smith

985 F.Supp.2d 506

UNITED STATES of America,

v.Malcolm A. SMITH, Daniel J. Halloran, Vincent Tabone, Joseph J. Savino, Noramie Jasmin, and Joseph Desmaret, Defendants.

Case No. 13–CR–297 (KMK).

United States District Court, S.D. New York.

Dec. 4, 2013.

Douglas B. Bloom, Esq., Justin Anderson, Esq., U.S. Attorney's Office, SDNY, New York & White Plains, NY, for the Government.

Vinoo P. Varghese, Esq., Varghese & Associates, P.C., New York, NY, for Defendant Daniel J. Halloran.

Deborah N. Misir, Esq., Lally & Misir, LLP, Mineola, NY, for Defendant Vincent Tabone.

Benjamin Ostrer, Esq., Ostrer & Hoovler P.C., Chester, NY, for Defendant Noramie Jasmin.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

In this multi-defendant case, the Government seeks a protective order governing the discovery materials it has produced and will be producing. Three of six Defendants oppose the Government's Application. For the reasons discussed herein, the Government's Application is granted, though with some modifications.

I. Background

A. Factual Background

1. The Arrests and the United States Attorney's Press Conference

The Defendants in this case were arrested on April 2, 2013, and charged in a 28–page, 75–paragraph criminal complaint.¹ The Complaint contained six counts and described in extensive detail allegations of bribery and fraud involving all six Defendants. Defendant Daniel J. Halloran (“Halloran”) alleges that he was arrested in the early-morning hours and taken from his residence “before a throng of reporters.” (Letter from Vinoo P. Varghese, Esq., to the Ct., Oct. 16, 2013 (“Oct. 16 Varghese Dr.”) 2.); see also Josh Margolin, State Sen. Malcolm Smith, City Councilman Halloran Arrested in ‘Bribery Plot’ To Rig Mayor Race, N.Y. Post (Apr. 2, 2013), http:// nypost. com/ 2013/ 04/ 02/ state- sen- malcolm- smith- city- councilman- halloran- arrested- in- bribery- plot- to- rig- mayor- race/ (noting that a handcuffed Halloran was asked by reporters at his residence about his arrest and that Smith made no comment as “he was hauled off”).

Later that day, the United States Attorney held a press conference to announce the arrests. Defendants base their opposition to the Government's Application, in part, on statements made by the United States Attorney at this press conference (and on other occasions). The United States Attorney began the press conference by introducing himself and then stating that “[t]oday is another sad and disappointing day for every New Yorker who hasn't yet given up on the dream of honest government.” Preet Bharara, U.S. Att'y for the S. Dist. of N.Y., United States v. Malcolm Smith et al., Prepared Remarks (Apr. 2, 2013), available at http:// www. justice. gov/ usao/ nys/ press conference/ malcolmsmith/ remarks. pdf. The United States Attorney then stated that this case “demonstrate[d], once again, that a show-me-the-money culture seems to pervade every level of New York government.” Id. He also said that this case involved “an unappetizing smorgasbord of graft and greed.” Id. The United States Attorney then described in some detail the allegations in the criminal complaint that had been filed. Id. After noting that the “case against these defendants will unfold in federal court, and each is presumed innocent unless and until proven guilty,” the United States Attorney went on to “make a general point” about how common corruption was in New York. Id. After citing the public-corruption cases the United States Attorney's Office has brought as proof of how common corruption was in New York, the United States Attorney said, “don't take my word for it,” and asked those in attendance to “[c]onsider the words of [Defendant] Halloran, caught on tape in this case.” Id. After quoting from Halloran, the United States Attorney observed that “[p]utting dirty politicians in prison may be necessary but it is not sufficient.” Id. He then went on to explain that “even after a parade of politicians have been hauled off to prison,” “it's time for others to step up” to also combat public corruption. Id.

2. The Indictment

On April 18, 2013, a grand jury returned an Indictment in ten counts, ² ( See Dkt. No. 42.) Count One charges Defendants Halloran, Malcolm A. Smith (“Smith”), Vincent Tabone (“Tabone”), and Joseph Savino(“Savino”) with conspiring, in violation of Title 18, United States Code, Section 371, to commit honest-services wire fraud and to violate the Travel Act related to an alleged scheme to bribe leaders of the New York City Republican Party in exchange for a so-called Wilson Pakula certificate that would have allowed Smith to seek the Republican nomination for New York City mayor. ( Id.) Count Two charges these same four Defendants with substantive honest-services wire fraud and attempt to commit honest-services wire fraud as part of the same bribery scheme, in violation of Title 18, United States Code, Sections 1343, 1346, 1349, and 2. Count Three charges these same Defendants with a substantive violation of the Travel Act in connection with the same bribery scheme, in violation of Title 18, United States Code, Sections 1952 and 2, and New York Penal Law Sections 200.45 and 200.50.

Count Four charges only Smith with extortion under the Hobbs Act, Title 18, United States Code, Section 1951, in connection with his alleged promise to obtain state funding for a community-center project in Spring Valley, New York, in exchange for bribes related to the scheme charged in Counts One through Three, Counts Five and Six charge Halloran with honest-services wire fraud and a Travel Act violation, in connection with his alleged acceptance of bribes in exchange for discretionary funds from the New York City Council.

Counts Seven through Ten charge Defendants Noramie Jasmin (“Jasmin”) and Joseph Desmaret (“Desmaret”) with honest-services mail fraud, in violation of Title 18, United States Code, Sections 1343 and 1346, and Hobbs Act extortion, in violation of Title 18, United States Code, Section 1951, in connection with a scheme in which Jasmin and Desmaret allegedly accepted bribes in exchange for their help in completing the community-center project to which Smith allegedly agreed to send state money.

3. Discovery Production

At the initial appearance before the Court, on April 23, 2013, the Government described the discovery materials it would be producing in this case. This discovery included line sheets, recordings, text messages, and transcripts from both court-authorized and consensually recorded electronic surveillance, ( See Apr. 23, 2013 Initial Conference Tr. (“Apr. 23 Conference Tr.”) 4–5.) The discovery also included financial records, the fruits of physical searches (including several computers), and the affidavits and other documents submitted in support of the court-authorized electronic surveillance and searches. ( See id.; see also Letter of Douglas B. Bloom, Esq. to the Ct., June 3, 2013 (“June 3 Bloom Ltr.”).) These materials were mostly provided to Defendants in electronic format by copying them onto a hard drive. ( See Apr. 23 Conference Tr. 4.)

Also, at this initial conference, counsel for Defendant, referring to a “local rule,” shared his concern about public statements that had been made by the United States Attorney for this District and the District Attorney for Rockland County. ( Id. at 9, 11 (noting that “there were a number of interviews given by law enforcement [in connection with this case],” and then specifically commenting, “I shouldn't say ‘law enforcement[ ]’[;] [t]he United States Attorney, the District Attorney of Rockland County”).) Counsel specifically expressed his concern about the possibility that the recorded conversations in this case might be leaked to the media. ( Id. at 9–10.) While counsel acknowledged that he trusted the Assistant United States Attorney (“AUSA”) assigned to this case, he noted that “there is a press office in the United States Attorney's Office,” and that the AUSA could not “guarantee that the press office wouldn't have a different view of things.” ( Id. at 10.) ³

Regarding the possibility that the recorded conversations might be leaked to the media, the Court inquired of the Government whether it would be seeking a protective order of some kind, without suggesting that such an order was necessary or appropriate. ( Id. at 12.) In response, the AUSA said that it was not the Government's intention to seek such an order, but noted that if “defense counsel have concerns about other defense counsel's conduct,” then the issue could be re-visited. ( Id.) The Court then reminded all counsel about the local rule of this District regarding extrajudicial statements by counsel, specifically citing the concern that no extrajudicial statements jeopardize the Parties' right to a fair trial. ( Id. at 13–12; see also S.D.N.Y. Local Crim. R. 23.1 (“Free Press–Fair Trial Directives”).)

The Court held a second conference on July 19, 2013. At that conference, the Government represented that it had produced the discovery it had promised to produce at the April 23 conference. (July 19, 2013 Conference Tr. (“July 19 Conference Tr.”) 4–5.) ⁴ The Government also stated that it had been receiving “additional documents, audiotapes, et cetera,” which it would be producing on a rolling basis. ( Id.) As to “some” of these materials, the Government indicated that it would be “seeking a protective order,” which it had been discussing with counsel for the Defendants. ( Id. at 5 (“There are some materials that the government has recently received that we are seeking a protective order.”).)

B. Procedural History

As noted, the Indictment in this case was returned on April 18, 2013. ( See Dkt. No. 42.) On August 21, 2013, the Government filed an Application requesting that the Court enter a protective order pursuant to Fed.R. Crim.P. 16(d)(1) “governing the use and disclosure of discovery materials containing personal, proprietary or other confidential information produced by the...