Case 3:16-cr TJC-JRK Document 31 Filed 07/18/16 Page 1 of 8 PageID 102

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1 Case 3:16-cr TJC-JRK Document 31 Filed 07/18/16 Page 1 of 8 PageID 102 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION UNITED STATES OF AMERICA v. Case No. 3:16-cr-93-TJC-JRK CORRINE BROWN ELIAS SIMMONS UNITED STATES MOTION FOR A PROTECTIVE ORDER The United States of America, through undersigned counsel, moves this Court, pursuant to Rule 16(d)(1) of the Federal Rules of Criminal Procedure, to enter into force the attached proposed protective order governing discovery in this matter. See Ex. A. On July 13, 2016, the government provided the proposed order to defense counsel, and by letter dated July 15, 2016, counsel for defendant Brown opposed entry of the order. See Ex. B. On July 18, 2016, defendant Simmons, through counsel, concurred with defendant Brown s position. Pursuant to this Court s Standing Order Pertaining to Discovery, Motions, Hearings, Conferences, and Trial ( Standing Order ), Doc. 28, the government s initial discovery production is due on or before Friday, July 22, In light of the September 6, 2016 trial date, and the government s expansive approach to discovery, the government currently anticipates making substantial productions that both meet and exceed its obligations pursuant to Rule 16 of the Federal Rules of Criminal Procedure, 18 U.S.C. 3500, Giglio v. United States, 405 U.S. 150 (1972), Brady v. Maryland, 373 U.S. 83 (1963), and the Court s Standing Order. For example, although the Court s Standing Order encourages production of Jencks materials just five days prior to trial i.e., September 1, 2016 the government intends to make a large production of FD-302s (reports of interviews) and transcripts of grand jury testimony available

2 Case 3:16-cr TJC-JRK Document 31 Filed 07/18/16 Page 2 of 8 PageID 103 to the defense well in advance of that date, assuming there is an appropriate protective order in place. To date the government has yet to redact any of the discovery. This material contains personally identifiable information e.g., birth dates, Social Security numbers, bank account numbers, phone numbers, and addresses of not only the defendants but also dozens of thirdparties, including many victim-donors of the charged conspiracy and fraud scheme involving One Door for Education. In addition to the basic categories of personally identifiable information, the government s anticipated initial disclosures also contain voluminous amounts of other sensitive and personal information, including, among other things: (1) bank and credit card statements of the defendants, victims, and third-parties that reveal account balances and credit and debit history; (2) non-public business records of victims and third-parties, including communications bearing unredacted addresses; (3) personal communications of defendant Simmons and cooperating defendant Carla Wiley, among other third-parties; (4) tax records of the defendants; (5) audio recordings; and (6) witness statements and grand jury testimony of individuals, many of whom may not be witnesses at trial. See, e.g., Douglas Oil v. Petrol Stops Nw., 441 U.S. 211, 218, (1979) (discussing the policies underlying grand jury secrecy requirements and noting that they remain in effect after the grand jury s proceedings conclude). Rule 16 provides that [a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. Fed. R. Crim. P. 16(d)(1). Good cause... generally signifies a sound basis or legitimate need to take judicial action. In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987). A district court has broad discretion when fashioning protective orders. Id at 357. [T]he trial court can and should, 2

3 Case 3:16-cr TJC-JRK Document 31 Filed 07/18/16 Page 3 of 8 PageID 104 where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect. Alderman v. United States, 394 U.S. 165, 185 (1969). In doing so, the court should seek to ensure that disclosure of discovery materials to a defendant involve[s] a minimum hazard to others. Id. Here, in light of the fact that the government s anticipated production contains not only personally identifiable information of the defendants and third-parties, including victims of the alleged conspiracy and fraud scheme, but also additional sensitive and personal information concerning the defendants and others, many of whom may never testify at trial, there is good cause for the Court to enter the proposed protective order. Cf. In re Alexander, 820 F.2d at (affirming protective order in civil litigation based on the fear of adverse publicity, intimidation or other outside forces that could interfere with the free flow of information, most of which would not be admissible during the actual litigation stage of [the] cases ). To that end, the proposed order imposes a single, narrow limitation on the defendants use of discovery material namely, that it be used solely for the preparation, trial, direct appeal (if any), and collateral attack (if any) of this case and for no other purpose whatsoever. Ex. A at 2. The proposed order otherwise places no limitations on the defendants ability to mount a vigorous defense to the charges, and, indeed, they would be free to share discovery with, among others, their attorneys, employees or agents of their attorneys, prospective witnesses, and experts. The order therefore strikes a reasonable and common-sense balance between the defendants right to defend themselves and the interests of numerous additional individuals to be protected from improper use of sensitive and personal information contained in the discovery material. Cf. Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985) (applying a balancing of interests approach to imposition of protective orders under analogous provision of 3

4 Case 3:16-cr TJC-JRK Document 31 Filed 07/18/16 Page 4 of 8 PageID 105 Federal Rule of Civil Procedure Rule 26(c)). Courts have entered virtually identical protective orders in other prosecutions involving members of Congress. See, e.g., United States v. Fattah, et al., No. 2:15-cr-346-HB, Doc. 35 (E.D. Pa. Aug. 21, 2015); United States v. Menendez, et al., No. 2:15-cr-155-WHW, Doc. 14 (D.N.J. Apr. 8, 2015). For her part, defendant Brown, through counsel, objects to entry of the proposed protective order exactly because it would prohibit her from disseminating discovery material for purposes other than the preparation of her defense. See Ex. B. Specifically, defense counsel s view is that defendant Brown should be free to pick and choose material and information obtained through discovery that she believes rebuts the allegations in the Indictment, and then disseminate that information to the public. In other words, defendant Brown objects to entry of the proposed protective order because it would inhibit her ability to use criminal discovery as an extrajudicial campaign tool irrespective of the privacy interests of both her co-defendant and third-parties, including victims of the fraud scheme she and defendant Simmons allegedly perpetrated. Defendant Simmons concurs with this position. Defense counsel have provided no legal support for this position, and, indeed, defendant Brown s stated desire to use discovery in this fashion provides further good cause for imposition of a protective order. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 (1984) ( [D]iscovery also may seriously implicate privacy interests of litigants and third parties. The Rules do not distinguish between public and private information. Nor do they apply only to parties to the litigation, as relevant information in the hands of third parties may be subject to discovery. There is an opportunity, therefore, for litigants to obtain incidentally or purposefully information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. (footnote omitted)). 4

5 Case 3:16-cr TJC-JRK Document 31 Filed 07/18/16 Page 5 of 8 PageID 106 As the Eleventh Circuit has recognized, [d]iscovery is neither a public process nor typically a matter of public record. United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986) (citing Seattle Times, 467 U.S. at 32-34). Indeed, [d]iscovery, whether civil or criminal, is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation. That is why parties regularly agree, and courts often order, that discovery information will remain private. If it were otherwise and discovery information and discovery orders were readily available to the public and the press, the consequences to the smooth functioning of the discovery process would be severe. Id. (citation omitted) (emphasis added). More generally, selective dissemination of discovery material poses a threat to the due administration of justice, as it could influence potential jurors and jeopardize the defendants right to a fair trial. See, e.g., United States v. McVeigh, 119 F.3d 806, 813 (10th Cir. 1997) (holding that disclosure of [sealed discovery materials] would play a negative role in the functioning of the criminal process, by exposing the public generally, as well as potential jurors, to incriminating evidence that the law has determined may not be used to support a conviction ); United States v. White, No. 04 CR 370, 2004 WL , at *5 (E.D. Pa. Sept. 22, 2004) (noting that [i]f the prosecutors and/or defense counsel had a practice of disclosing discovery materials to the media, this could be disruptive to a fair trial for all parties ). Indeed, Local Rule 4.10 codifies the prohibition on counsel making extrajudicial statements concerning pending criminal matters where such commentary could impair the due administration of justice: It is the duty of the lawyer not to release or authorize the release of information or opinion for dissemination by any means of public communication in connection with pending or imminent criminal litigation with which he is associated, if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice. Where there is any such reasonable likelihood, the following will apply: 5

6 Case 3:16-cr TJC-JRK Document 31 Filed 07/18/16 Page 6 of 8 PageID 107 From the time of arrest, issuance of an arrest warrant, or the filing of a complaint, information, or indictment in any criminal matter until the commencement of trial or disposition without trial, a lawyer associated with the prosecution or defense shall not release or authorize release of any extrajudicial statement, for dissemination by any means of public communication, relating to that matter and concerning:... the identity, testimony or credibility of prospective witnesses, except that the lawyer may announce the identity of the victim if the announcement is not otherwise prohibited by law;... or [] any opinion as to the accused s guilt or innocence or as to the merits of the case or the evidence in the case. M.D. Fla. R. 4.10; cf. Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979) (trial courts have an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity ); Sheppard v. Maxwell, 384 U.S. 333, 358 (1966) (noting that trial court has responsibility to avoid the creation of a carnival atmosphere in high-profile cases). As such, defense counsel s stated opposition to the proposed protective order runs contrary to the presumption that discovery material will remain private and the overarching need to preserve the integrity of judicial proceedings through the minimization of pretrial publicity. To be sure, defendant Brown is free to speak with the press and to the public concerning this matter, as she has already. See, e.g., Dan Wine, Corrine Brown: Maybe Feds Could Have Prevented Pulse Shooting if They Weren t Investigating Me, ORLANDO SENTINEL (July 13, 2016), story.html. At issue here, however, is whether the defendants, at their discretion, should be permitted to disseminate discovery material to individuals who are not affiliated with their defense, where such material contains sensitive and private information of third-parties, including victims of the defendants alleged crimes. The government submits the answer is no. The government therefore respectfully moves the Court to enter the proposed protective order in advance of July 22, 2016, so that the government can proceed with broad and early 6

7 Case 3:16-cr TJC-JRK Document 31 Filed 07/18/16 Page 7 of 8 PageID 108 disclosure of discovery materials to the defendants. See United States v. Mitrovic, 286 F.R.D. 683, 688 (N.D. Ga. 2012) ( But, more importantly, this is not a protective order that actually restricts the Defendant from accessing any information he would otherwise be entitled to receive in pre-trial discovery. Thus, the Court is particularly inclined to permit this protective order, as it only increases the discovery that the defense is receiving. (emphasis in original)). Respectfully submitted, A. LEE BENTLEY, III RAYMOND HULSER UNITED STATES ATTORNEY CHIEF /s/ A. Tysen Duva /s/ Eric G. Olshan A. TYSEN DUVA ERIC G. OLSHAN Assistant United States Attorney Deputy Chief Florida Bar No Public Integrity Section Criminal Division /s/ Michael Coolican U.S. Department of Justice MICHAEL COOLICAN 1400 New York Ave. NW, Suite Assistant United States Attorney Washington, DC U.S.A. No. 156 Telephone: (202) N. Hogan Street, Suite 700 Facsimile: (202) Jacksonville, Florida Eric.Olshan@usdoj.gov Telephone:(904) Facsimile: (904) Tysen.Duva@usdoj.gov Michael.Coolican@usdoj.gov 7

8 Case 3:16-cr TJC-JRK Document 31 Filed 07/18/16 Page 8 of 8 PageID 109 CERTIFICATE OF SERVICE I certify that I filed the foregoing on July 18, 2016 through the Court s CM/ECF system, which will provide notice to counsel of record for the defendants. /s/ Eric G. Olshan Eric G. Olshan Deputy Chief Public Integrity Section Criminal Division United States Department of Justice 1400 New York Ave. NW, Suite Washington, D.C Telephone: (202) Facsimile: (202) Eric.Olshan@usdoj.gov 8

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