IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Transcription

1 Case 309-cr EMK Document 73 Filed 03/01/2010 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA vs. 3CR (Kosik, J.) (Electronically Filed) MICHAEL T. CONAHAN, and MARK A. CIAVARELLA, JR. Defendants MOTION OF DEFENDANT, MICHAEL T. CONAHAN, TO SUPPRESS EVIDENCE OBTAINED FROM RECORDED CONVERSATIONS OF THE DEFENDANT AND ANY FRUITS THEREOF The Defendant, Michael T. Conahan, by and through his undersigned counsel, respectfully moves this Honorable Court to suppress evidence obtained from recorded conversation between Robert Powell (Informant Powell) and the Defendant as well as any fruits thereof and in support thereof, represents the following

2 Case 309-cr EMK Document 73 Filed 03/01/2010 Page 2 of 9 1. On September 9, 2009, a federal grand jury sitting in this District returned a 48-Count Indictment against the Defendants, charging them with violations of 18 U.S.C. 1962(c) (Count 1), 18 U.S.C (d) (Count 2), 18 U.S.C. 1343, 1346 (Counts 3-10), 18 U.S.C. 1341, 1346 (Counts 11-14), 18 U.S.C. 666 (a)(1)(b) (Counts 15-24), 18 U.S.C. 1956(h) (Count 25), 18 U.S.C. 1956(a)(1)(B)(i) (Counts 26-30), 18 U.S.C (Counts 31-38), 18 U.S.C. 371 (Counts 39), 18 U.S.C (Counts 40-47), 18 U.S.C. 982, 1963 (Count 48). (Doc. Entry 1). 2. On September 15, 2009, the Defendants voluntarily appeared and were arraigned before the Honorable Magistrate Judge Thomas M. Blewitt, at which time, the Defendants entered pleas of not guilty and were released on bail with conditions. (Doc. Entries 8-23). 3. Upon an unopposed motion of the Defendants, this Honorable Court extended the deadline within which to file pretrial motions to March 1, 2010 and the instant motion is filed in accordance therewith. (Doc. Entries 30-33). 4. The protections of the attorney-client privilege and the work product doctrine, and the joint defense privilege are applicable in this case. 5. The joint defense privilege is an extension of the attorney-client privilege and protects communications between an individual and an attorney for 2

3 Case 309-cr EMK Document 73 Filed 03/01/2010 Page 3 of 9 another when the communications are part of an on-going and joint effort to set up a common defense strategy. 6. Contained in its disclosure on October 30, 2009 and in a previous disclosure, the government provided transcripts of certain recorded conversations involving the Defendant as well as audio recordings which formed the basis for certain transcripts disclosed (the Recorded Conversations ). 7. The Recorded Conversations are between Robert Powell ( Informant Powell ), the Defendant and others and occured between July 2008 and September At the time of the Recorded Conversations, an ongoing, personal attorney-client relationship existed between Robert Powell ( Informant Powell ), his counsel, the Defendant and his counsel as well as all other parties to the Joint Defense Agreement (JDA). Moreover, Informant Powell and his firm had represent Defendant previously when the Powell Law Firm represented W-Cat, Inc. in its land development project. 9. The government was fully aware of the JDA at the time Informant Powell began engaging in recorded conversation with the Defendant. Informant Powell did not withdraw from the JDA prior to his cooperation with the government despite the fact that the JDA required him to do so. Instead and at 3

4 Case 309-cr EMK Document 73 Filed 03/01/2010 Page 4 of 9 least with tacit consent of the government, Informant Powell engaged in recorded conversations with the Defendant, which revealed information that was protected by the attorney-client privilege, joint defense privilege, and/or work product doctrine. For example, the recordings revealed defense strategies concerning key government witnesses as well as other information. 10. In Motion of the United States for Disclosure of Unredacted Tape Recordings (MDPA Docket # 3CR , Doc. Entry 34), the government indicated that when contemplating the use of Informant Powell as a cooperating witness, a concern surfaced that potential recorded conversations between Informant Powell and the Defendants could yield the disclosure of defense strategy and/or privileged information. Government Motion, 4. In response thereto, the government formed a taint team. 1 Id. However, the procedures governing the taint team were deficient. 11. The use of the taint team in this case and its failure to redact certain portions of the tape recordings/transcripts caused the disclosure of defense strategy and/or privileged information to the government prosecution team. 1 The government taint team comprised of one (1) Assistant United States Attorney and one (1) legal assistant in Scranton, Pennsylvania and in the same office as members of the government prosecution team. 4

5 Case 309-cr EMK Document 73 Filed 03/01/2010 Page 5 of Various federal courts are split on the propriety of using government taint teams to protect a defendant s privileged information in the context of a criminal prosecution. 13. Moreover, the taint team procedure employed by the government in this case deviated significantly from the taint team procedures when approved by the district courts elsewhere. In other federal jurisdictions, district courts approved procedures whereby the defendant was permitted to review the unredacted information prior to the disclosure of any materials to government prosecution team by the government taint team so as to afford the defendant an opportunity to object to the items designated for disclosure by the government taint team and seek Court intervention if necessary. The Defendant was not given this opportunity by the government in this case. 14. Accordingly, the government denied the Defendant an opportunity to review the entire recording and assert the joint-defense privilege, attorney-client privilege and/or work product doctrine when warranted prior to the disclosure of any recording/transcript to the government prosecution team. Since the information disclosed to the prosecution team included defense strategy, this denial by the government constitutes a violation of the aforesaid privileges, further support the above-referenced the Defendant s Motion to Dismiss the Indictment 5

6 Case 309-cr EMK Document 73 Filed 03/01/2010 Page 6 of 9 based upon Outrageous Government Misconduct, or in the alternative, warrant suppression of the recordings and the fruits thereof. 15. The herein motion should be considered in conjunction with the Defendant s Motion to Dismiss the Indictment for Outrageous Government Misconduct, filed on this date in the above-referenced matter. 16. The Defendant hereby incorporates by reference his brief in support, which will be filed pursuant to M.D.Pa. Local Rule 7.5, as if fully stated herein. WHEREFORE, the Defendant respectfully requests that a hearing be held on this Motion and that following said hearing, the Court order that communications seized as a result of the aforesaid recorded conversations was the result of one or more of the violations aforementioned, that none of the recordings/transcripts shall be received or admitted into evidence and no testimony or comment shall be received respecting the same, and that they shall be suppressed, along with the fruits thereof, and all evidence obtained as a direct and indirect result of said statements. 6

7 Case 309-cr EMK Document 73 Filed 03/01/2010 Page 7 of 9 Respectfully submitted, /s/ Arthur T. Donato, Jr. Esquire ARTHUR T. DONATO 216 Front Street, 2nd Floor Media, PA (610) (610) (Fax) adonato@verizon.net /s/ Philip Gelso, Esquire PHILIP GELSO Briechle & Gelso, LLC 63 Pierce Street Kingston, PA (570) (570) (Fax) philip.gelso@briechle-gelso.com Dated March 1, 2010 Counsel for Michael T. Conahan 7

8 Case 309-cr EMK Document 73 Filed 03/01/2010 Page 8 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA vs. 3CR (Kosik, J.) (Electronically Filed) MICHAEL T. CONAHAN, and MARK A. CIAVARELLA, JR. Defendants CERTIFICATE OF NON-CONCURRENCE On March 1, 2010, counsel for the Defendant contacted Assistant United States Attorney Michael A. Consiglio, to discuss the foregoing motion wherein he indicated that the government does not concur in the same at this time. However, the government may file an amended Certificate after reviewing the foregoing Motion. 8 /s/ Arthur T. Donato, Jr. Esquire ARTHUR T. DONATO 216 Front Street, 2nd Floor Media, PA (610) (610) (Fax) adonato@verizon.net Dated March 1, 2010 Counsel for Michael T. Conahan

9 Case 309-cr EMK Document 73 Filed 03/01/2010 Page 9 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA vs. 3CR (Kosik, J.) (Electronically Filed) MICHAEL T. CONAHAN, and MARK A. CIAVARELLA, JR. Defendants CERTIFICATE OF SERVICE I, Philip Gelso, do hereby certify that on March 1, 2010, I served a true and correct copy of the forgoing Motion to the following persons and in the manner indicated below. SERVED BY ECF Gordon A.D. Zubrod, AUSA William S. Houser, AUSA Michael A. Consiglio, AUSA Amy Phillips, AUSA United States Attorney s Office United States Attorney s Office 228 Walnut Street Federal Building - Room 309 Harrisburg, PA Scranton, PA /s/ Philip Gelso, Esquire PHILIP GELSO (PA 81934) Briechle & Gelso, LLC 63 Pierce Street Kingston, PA (570) (570) (Fax) philip.gelso@briechle-gelso.com Dated March 1, 2010 Counsel for Michael T. Conahan 9