Case 309-cr-00272-EMK Document 57 Filed 03/01/2010 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA vs. 3CR-09-272 (Kosik, J.) (Electronically Filed) MICHAEL T. CONAHAN, and MARK A. CIAVARELLA, JR. Defendants MOTION OF DEFENDANT MICHAEL T. CONAHAN FOR EARLY DISCLOSURE OF STATEMENTS, PURSUANT TO THE JENCKS ACT, 18 U.S.C. 3500 AND FEDERAL RULE OF CRIMINAL PROCEDURE 26.2 The Defendant, Michael T. Conahan, by and through his undersigned counsel, moves this Honorable Court to order early and complete disclosure of Jencks material pursuant to 18 U.S.C. 3500 and Federal Rule of Criminal Procedure 26.2 as well as the Fifth and Sixth Amendments of the United States Constitution, and in support thereof, represents the following
Case 309-cr-00272-EMK Document 57 Filed 03/01/2010 Page 2 of 7 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. 1962 (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. 1951 (Counts 31-38), 18 U.S.C. 371 (Counts 39), 18 U.S.C. 7206 (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. On September 15, 2009, counsel for the Defendant delivered to the government an informal discovery request. On or about October 5, 2009, the government sent a letter to counsel for the Defendant indicating that certain items described therein would be disclosed in the near future. On or about October 30, 2009, the government disclosed 2 CD ROMS containing various items. 2
Case 309-cr-00272-EMK Document 57 Filed 03/01/2010 Page 3 of 7 5. Thereafter, counsel for the Defendant requested additional information including, but not limited to, items governed by 18 U.S.C. 3500. Although the government provided verbal descriptions of several of the requested items, the government refused to provide any items in response to counsel s request. 6. The Defendant respectfully moves the Court for an Order compelling and directing the Government to disclose to the Defendant the following Jencks material pursuant to 18 U.S.C. 3500 and Federal Rule of Criminal Procedure 26.2 as well as the Fifth and Sixth Amendments of the United States Constitution a. A statement written by a witness; and signed, adopted or approved by the witness; or substantially verbatim transcript made contemporaneously with witness oral statement; or witness grand jury testimony; b. Rough notes of FBI agents, IRS agents, ICE Agents, agents of the Pennsylvania Attorney General s Office, Luzerne County District Attorney s Office and/or Detective s Office, agents of the Pennsylvania Judicial Conduct Board, municipal police officers, or state police who were working with federal authorities. U.S. v. Ramos, 26 F.3d 65 (3 rd Cir. 1994); U.S. v. Dekle, 768 F.2d 1256 (11 th Cir. 1985); 3
Case 309-cr-00272-EMK Document 57 Filed 03/01/2010 Page 4 of 7 c. Case Summary Memos from agents involved in the investigation; d. Any notes used by witnesses when testifying before the grand jury. U.S. v. Wallace, 848 F.2d 1464 (9 th Cir. 1988); e. The prosecutor s notes of witness interviews regardless of whether the notes had been read back to the witness for corrections and/or otherwise adopted by the witness. Goldberg v. U.S., 425 U.S. 101 (1976), Deputy Attorney General David W. Ogden s memorandum of January 4, 2010 to federal prosecutors entitled Guidance for Prosecutors Regarding Criminal Discovery; f. Diaries or notebooks kept by witnesses. U.S. v. Rivera Pedin, 861 F.2d 1522 (11 th Cir. 1988). 7. In general, it is a better practice not to receive Jencks material in front of the jury or during trial. Gregory v. U.S., 369 F.2d 185 (D.C. Cir. 1966); U.S. v. Gardin, 382 F.2d 601 (2 nd Cir. 1967). 8. Due to the anticipated volume of the Jencks materials, it appears that even if the government adheres to its standard policy of disclosing the same three (3) days before the commencement of trial, the Defendant will be compelled to move for a continuance of trial pursuant to F.R.Cr.P. 26.2(d) in order to render effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. 4
Case 309-cr-00272-EMK Document 57 Filed 03/01/2010 Page 5 of 7 9. It has been held that early disclosure of Jencks is permissible pursuant to Court Order. See, e.g., U.S. v. MacFarlane, 759 F.Supp. 1163 (W.D. Pa. 1991). 10. The Defendant respectfully requests disclosure of Jencks material at least thirty (30) days prior to trial of this matter so as to avoid unnecessary delay prior to cross examination. 11. 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 moves this Honorable Court for an order compelling the Government to provide early and complete disclosure of the Jencks materials, at least thirty (30) days prior to the commencement of trial in this matter. Respectfully submitted, /s/ Arthur T. Donato, Jr. Esquire ARTHUR T. DONATO 216 Front Street, 2nd Floor Media, PA 19063 (610) 565-4747 (610) 892-9786 (Fax) adonato@verizon.net /s/ Philip Gelso, Esquire PHILIP GELSO Briechle & Gelso, LLC 63 Pierce Street Kingston, PA 18704 (570) 763-0006 (570) 288-0243 (Fax) philip.gelso@briechle-gelso.com Dated March 1, 2010 Counsel for Michael T. Conahan 5
Case 309-cr-00272-EMK Document 57 Filed 03/01/2010 Page 6 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA vs. 3CR-09-272 (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. /s/ Arthur T. Donato, Jr. Esquire ARTHUR T. DONATO 216 Front Street, 2nd Floor Media, PA 19063 (610) 565-4747 (610) 892-9786 (Fax) adonato@verizon.net Dated March 1, 2010 Counsel for Michael T. Conahan 6
Case 309-cr-00272-EMK Document 57 Filed 03/01/2010 Page 7 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA vs. 3CR-09-272 (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 18708 Scranton, PA 18501 /s/ Philip Gelso, Esquire PHILIP GELSO (PA 81934) Briechle & Gelso, LLC 63 Pierce Street Kingston, PA 18704 (570) 763-0006 (570) 288-0243 (Fax) philip.gelso@briechle-gelso.com Dated March 1, 2010 Counsel for Michael T. Conahan 7