Peter Vaira

By Peter F. Vaira, for the May 12, 2020 edition of The Legal Intelligencer newspaper COVID-19 has brought numerous changes to the practice of law. Some were ordered by the courts, some instituted by practitioners, others simply have evolved. Some practice changes will be temporary, others may be long lasting. As with any change brought about by emergency circumstances, today’s changes may have downsides that outweigh their temporary advantages. I have asked for comments/views on the changing practices from judges, civil and criminal practitioners. A major result of the COVID-19 virus is the very widespread use of remote hearings due to restrictions on travel and public gatherings. These remote hearings by conference call or video technology, common practice in other professions and industries, has surprised leading members of the bar. Chief Justice Nathan Hecht of the Texas Supreme Court, in a discussion on April 16, held by the American Law Institute said, “I imagine that three weeks ago no Texas court had had more than one or two video conference hearings ever. As of April 10, we have had 2,000 hearings involving more than 14,000 people.” The remote hearings are the result of court closures, as well as executive orders limiting official and social functions. Judge Idee Fox, president judge of the Philadelphia Court of Common Pleas, ordered the court closed until May 29; however, in a separate order urged depositions held by remote communications where possible, and stated that court reporters need not be present where the deponent is located. In a program sponsored by the Philadelphia Bar Association on April 23, featuring the chief judges of the U.S. Court of Appeals for the Third Circuit, the federal court for Eastern District of Pennsylvania and the clerk of the Eastern District of Pennsylvania, 80% of the discussion dealt with remote hearings. In weighing the pros and cons of the new techniques, Kate Barkman, the clerk of court for the Eastern District of Pennsylvania said, “The question becomes, what is the new normal?” Chief Judge Brooks Smith of the Third Circuit said that remote oral appellate arguments are easily handled, but some problems exist. He noted that the difficulty will be with the court’s panel members who are well known for interrupting the arguments with questions, often out of turn. He said that he would advise the judges beforehand to figure out some order of questioning. He further commented that he did not envy counsel who had to argue without seeing the visual expressions of the judges. One practice area that has been greatly affected is mediation and arbitration. Ben Picker, one of the leading mediators and arbitrators in Philadelphia, said, “The emergence of COVID-19 has turned the world of mediation and arbitration upside down. While many participants have initially resisted virtual mediation and arbitration because of their unfamiliarity with the technology, a 30-minute training session is likely to overcome these concerns. While remote mediation is less than perfect, I have found it can be highly effective. Arbitrators are working to create flexible methods of conducting remote hearings to be able to handle review of documents and other physical issues. I predict when we return to normalcy, there will be much greater use of remote mediation and arbitration, permitting participants to save time and money resulting from travel and lodging expenses.” Michael Engle, chair of the white collar defense group of Buchanan Ingersoll & Rooney, said, “The COVID-19 pandemic will create long-lasting changes in the practice of law. Work-related travel for internal investigations and meeting with clients will be significantly curtailed, as firms realize that technology may be a cost-efficient substitute to travel. Perhaps it will become economically desirable for law firms to reduce overhead by downsizing physical office spaces.” Another major area of concern is jury trials. Kate Barkman, clerk of court for the Eastern District of Pennsylvania, said, “Jurors may not show up.” Barkman noted that in the current climate it would be impossible for 12 jurors to sit shoulder to shoulder in a jury box. She added that bringing in 200 people in for a jury venire was equally impossible. Ann Flannery, a Philadelphia criminal lawyer said, “Many jurors may be asked to be excused because they are in an ‘at risk’ group—including those over 60 years old. Criminal defendants will be faced with tension between two important constitutional rights: the right to a speedy trial and the right to a jury selected from representative cross section of the entire community, a right recently reference by Justice Neil Gorsuch in Ramos v Louisiana, no. 18-05924’ 2020 Lexis 2407.” She added, “Jurors anxious about being in close accommodations could insidiously or subconsciously undermine the defendant’s right to an impartial jury by rapidly truncating deliberations and reaching a quick compromise verdict.” There has been no serious discussion of changing the actual jury trial. In a jury trial it is imperative that the jurors be in the same room as the witness to watch the witness testifying. In-person testimony is a major aspect in the fact-finding aspect of the Anglo-Saxon system in the United States and Great Britain. That is one of the principal reasons why depositions are rarely permitted in the criminal law.  Mike Snyder, Chancellor of the Philadelphia Bar Association, is not concerned that trials will become a thing of the past. “Trials are still the cornerstone our justice system,” he said. A special area of concern of the criminal bar is the grand jury. Grand juries generally meet in one room with 23 jurors, the government attorney, the witness, and, in Pennsylvania state grand juries, the attorney for the witness. There is no effective way to separate the grand jurors from the other parties, as all the participants need to see and hear the witness. In the civil practice area, Robert Peirce, a well-known Pittsburgh plaintiffs attorney, said that there were negative, as well as positive, impacts on his practice. He further said, “There is the problem of not being readily able to meet with clients. Holding depositions is more difficult. On the positive side, we found that many jobs we thought could not be done at home actually can, and a trained staff can deal with many of these practical problems.” Joseph Guerrieri, a Washington, D.C. labor lawyer who represents railroad and airline union employees across the country, said that remote conferences are a poor substitute for actual meetings with his clients who have numerous employment problems as the result of the slowdown of passenger travel. One of the most serious issues is the restriction of the lawyer in conducting interviews, in-person depositions, and meetings with clients. Michael Engle, an experience criminal trial lawyer, said, “Many of the innovations regarding remote meetings and hearings will diminish our effectiveness as lawyers and our ability to best serve our clients.” It is this writer’s opinion, a lawyer’s personal skill in determining the actual factual circumstance he is dealing with, described by the courts as attorney opinion work product, must be preserved. Interviewing potential witnesses is a prime example. Good lawyers and investigators must see and hear a person to determine if the he is being truthful. More than one time the writer of this column has interviewed a possible witness and concluded he was “holding back.” Sometime later, it was discovered that the witness was less than candid in his interview.  Remote interviews make those findings nearly impossible. The lawyer’s job in both civil and criminal cases is to learn the truth; only face to face interviews will produce that result in questionable situations. Lawyers, judges, jurors, and investigators need that confrontation, in many situations, to be effective. Certain aspects of the criminal law practice will be affected. An issue currently being addressed is the release of prisoners who are medically vulnerable to the COVID-19 virus. The Philadelphia court system has been criticized by both the Philadelphia District Attorney’s Office and several criminal defense lawyers for the slow release of vulnerable prisoners. See “Still Behind Bars in Philadelphia,” by Samantha Malamed, The Philadelphia Inquirer, April 30. Dean April Barton of Duquesne Law School said that she cannot count on operating as normal on campus next semester. She commented, “It will be either having a safe social distancing arrangement with professors and students or conducting classes completely online. We owe it to the students to offer the best as possible.” She further added that a major academic emphasis in the coming year will include instruction on individual leadership, a discipline not usually included in a law school curriculum. The courts and the bar will adapt procedures to deal with changing circumstances. Some changes were long overdue, such as the remote notarization of witness statements. Others must meet the test of time and circumstances. The remarks of U.S. District Chief Judge Mark R. Hornak of the U.S. District Court of the Western District of Pennsylvania, are relevant here. Hornak said, “I hope a by-product of this crisis is a renewed sense of perspective and gratitude for all of us. For example, in discovery disputes, emotion and personality often get in the way of what really is at stake. I hope that after seeing medical and first responders daily doing their duty, we can approach our work in a way that appreciates what is really involved and what can be done to resolve disputes with civility.” Peter Vaira is a member of Greenblatt Pierce Funt and Flores. He is a former U.S. attorney and the author of a book on Eastern District practice. He acts as special hearing master for Pennsylvania courts and clients. He can be reached at p.vaira@gpfflaw.com.

By Peter F. Vaira, for the January 14, 2020 edition of The Legal Intelligencer newspaper On Dec. 17, 2019, a Foreign Intelligence Surveillance Court (FISA) judge issued what The New York Times described as an “extraordinary public order” criticizing the FBI for misusing the process to obtain warrants for electronic surveillance on an American citizen (refer to In re Accuracy Concerns Regarding FBI Matters Submitted to the FISC, Docket No. Misc. 19-02). The FISA court was created by the Foreign Intelligence Surveillance Act, hence the term FISA court or FISA judge. Today’s article is a primer on the required procedure for obtaining warrants from the FISA court to install wiretaps and electronic hearing devices in the investigation of certain persons, and a guide to understanding the current allegations that the FBI has misused that procedure to gain permission to use secret electronic surveillance as described in the foregoing order. I will begin with a short background. When the FBI seeks a warrant to install a wiretap on a private phone, or install a secret listening device in a private home or office, in order to obtain evidence of a crime, the investigative agency must file an application for the warrant with a federal court judge. The initial process for the FISA court is the same as required for obtaining electronic surveillance warrants in federal district courts for criminal investigations. The investigative case agent must file an application for a warrant with a federal judge of that particular court. FISA court judges are federal court judges from across the country sitting by designation. The investigative agent is generally overseen by the relevant U.S. attorney or Department of Justice attorney. In the FISA court, the affiant must allege that the targeted person is a foreign national or an American citizen operating on behalf of a foreign power. In both the federal district court and FISA court, this is a secret procedure and the judge must rely on the credibility of the information in the affidavit. Hearsay is often included, including information about past events and information supplied by unnamed confidential informants, whose reliability is sworn to by the affiant. As this is an ex parte process, the court must rely upon the professionalism and integrity of the affiant. U.S. Magistrate Judge Timothy R. Rice of the Eastern District of Pennsylvania, who has issued numerous search warrants in his career, said, “The candor of the affiant is absolutely critical to this process. Information the affiant omits from the warrant can adversely affect the reliability of the information he submits. This is not an adversary proceeding, and there is no separate investigation of the affiant’s information before the warrant is issued. Failure to maintain this high standard will destroy the system.” The results of a FISA warrant are treated differently. The FISA court is a highly secretive court with judges from the various federal courts whose primary responsibility is to decide whether the U.S. government has enough evidence against foreign powers or individuals believed to be foreign agents to allow for their electronic surveillance by the intelligence community. It is the only court permitted to issue such warrants. The FISA court is not a criminal court and evidence obtained by its warrants is not tested in an open court proceeding. The results of the FISA warrants are used by intelligence and security services to discover secret foreign agents or efforts of foreign powers to penetrate the security of the United States. The procedure for obtaining a FISA warrant has the same requirements as required for a warrant to obtain criminal evidence. The affiant has the same legal and ethical responsibility of candor to the court as one who is applying for a criminal warrant. The key difference is that the FISA warrant does not result in an adversarial hearing. The current controversy is with FISA warrants that were obtained to surveil the actions and conversations of an American citizen, who the affiant alleged was operating on behalf of a foreign power. The problem is not that the FBI was mistaken in starting the investigation, but what the FBI did or did not do in pursuing the investigation. A separate investigation by the inspector general of the Department of Justice found that the FBI agents applying for the warrants continually supplied misleading information to the FISA judge, knowing it was misleading on a number of occasions and took steps to mischaracterize it. Special Counsel Robert Mueller, in his investigation, subsequently found that the American citizen who was the subject of electronic surveillance was not acting as a foreign agent. The inspector general of the Department of Justice found that early in the investigation the FBI had substantial information in its files that indicated the FBI’s original premise was incorrect, and that the agency continued to pursue electronic surveillance notwithstanding this conflicting information. The actions of the FBI violate unwritten rule No. 1 for federal prosecutors and federal agents: do not omit or mischaracterize critical information supplied to a federal judge in applying for federal search warrants. An example of the reaction to such conduct is the strongly worded court order, cited above, issued Dec. 17, 2019, by U.S. District Senior Judge Rosemary M. Collyer of the District of Columbia, the FISA judge who signed the warrants. She detailed various acts by FBI agents, and one Department of Justice attorney, that misled her when she signed the warrants. Collyer said, “the frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable.” She ordered the FBI and Department of Justice to make swift changes in the application process. A FISA court judge, as a federal court judge, has the power to hold those agents in contempt and fine them for unprofessional conduct. She very well may do so based upon the incidents described in her order. Unfortunately, this is not the first such problem the FISA court has had with the FBI. The following is reported in an article in the 41 Suffolk Law School Law Review 445, 2007-2008, by Stephen Gard, “In 2002 the FISA court reported that in 2000 the federal government admitted to ‘misstatements and omissions of material acts’ in ‘75 FISA applications related to major terrorist attacks directed against the United States.’ As a result, the court refused to accept inaccurate affidavits from FBI agents and even prohibited one FBI agent from appearing before the court as a FISA affiant,” citing In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611, 620 (FISA Ct. 2002,) abrogated by In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002). The inspector general’s report and Collyer’s order has produced calls for more strict review of FISA court applications and FISA court procedure, and even calls for removing the FISA court from federal procedure. This controversy is only further proof that the FBI and Department of Justice need a long overdue critical review of their basic operational procedure and structure. Peter Vaira is a member of Greenblatt Pierce Funt and Flores. He is a former U.S. attorney and the author of a book on Eastern District practice. He acts as special hearing master for Pennsylvania courts and clients. He can be reached at p.vaira@gpfflaw.com.

By Peter F. Vaira, for the November 19, 2019 edition of The Legal Intelligencer newspaper The purpose of today’s column is to examine what exceptions there are to the federal grand jury secrecy rules, and how grand jury transcripts may be obtained by practitioners for use in litigation in civil or criminal cases. Recently the chief judge of the U.S. District Court for the District of Columbia authorized the disclosure to the Judiciary Committee of the House of Representatives, certain grand testimony from the grand jury investigation conducted by special counsel Robert Mueller. As discussed below, the subject matter of the release of grand jury transcripts goes well beyond the use in proceedings for the impeachment of the president. Federal Criminal Rules protect the secrecy of grand jury testimony and documents utilized in grand jury investigations. As a general rule, once a person has testified before a federal grand jury, that testimony is regarded as secret, and the identity of the witness and his testimony is protected from general discovery. Rule 6 (e) provides exceptions to this rule, as some grand jury transcripts may be used in a later civil or criminal trial. Federal Criminal Rule 6 (e) (3) (E) provides: “The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs— of a grand jury matter: preliminary to or in connection with a court proceeding.” That short sentence is subject to the interpretations of many complicated court decisions, which will be discussed below. The discussion in the next six paragraphs is generally taken from my work, “Corporate Responses to Federal Grand Jury Investigations,” Lexis-Nexis, Business Monograph Series. A judicial proceeding in the meaning of Rule 6 (e) has been defined as any proceeding determinable by a court that has its object, the compliance of any person, subject to judicial control, with standards set in the public interest. See Doe v. Rosenberry, 255 F.2d 118, 120 (2d Cir. 1958); In re Grand Jury, 932 F.2d 481 (6th Cir. 1991). Translated that means the issue must be one that is justifiable by a court of proper jurisdiction. The prospect of litigation must be more than a remote contingency, as in United States v. Baggot, 463 U.S. 476 (1983). The use of the material in the ordinary or investigative functions of a government agency where the agency does not require litigation to achieve its goal is not preliminary to a judicial proceeding. If the agency’s proceedings are purely administrative or investigative, and the possibility of judicial review is remote, the nexus with a judicial proceeding may be lacking. The petitioning party must demonstrate there is a  particularized and compelling need for the disclosure, as held in United States v. Proctor & Gamble, 356 U.S. 677 (1958). Numerous factors have been considered by the courts in determining particularized need, with inconsistent results. The U.S. Supreme Court has said that a particularized need means that the seeking party must show the material they seek is needed to avoid a possible injustice in another proceeding, and also must show the need for the disclosure is greater than the need for continued secrecy, as in Illinois v. Abbotts and Associates, 460 U.S. 557 (1983). Particularized need was shown where the material was necessary to impeach a witness or refresh his recollection at trial, Proctor & Gamble, supra; Puriccelli v. Borough of Morrisville, 136 F.R.D. 393 (E.D. Pa. 1991), or at a deposition, In re Grand Jury Testimony, 832 F.2d 60 (5th Cir. 1887). However, several courts have held the determination whether grand jury transcripts were necessary to refresh a witness’ recollection or impeach his testimony could not be made until the witness had testified, see Illinois v. F.E. Moran, 740 F.2d 533 (7th Cir. 1984). As a general rule, particularized need will be recognized where the use of the material is necessary to prevent misleading the trier of fact or otherwise to prevent injustice, as in Douglas Oil v. Petrol Stops Northwest, 441 U.S. 221, 222 (1979). Only as much of the material as necessary to satisfy the particular need will be disclosed, as in Missouri v. W.E.R., 55 F.3d 350, 354 (8th Cir. 1995). The petitioning party must also show that the particularized need outweighs the traditional need for secrecy, as in United States v. McDowell, 888 F.2d 285 (3rd Cir. 1989); and In re Grand Jury Matter (Catania), 682 F.2d 61, 64 (3rd Cir. 1982). Among the reasons given by the courts for protecting the grand jury secrecy is that secrecy encourages free disclosure by witnesses and protects the reputation of the accused if he is exonerated. Particularized need is not satisfied where the request is made merely for general discovery in a civil proceeding, as in Wilson v. City of New York, (E.D.N.Y. Dec 21, 2007); Cullen v. Margiotta, 811 F. 2d 698, 715 (2nd Cir. 1987), or to merely shortcut the process of obtaining evidence otherwise available, as in United States v. Rutherford, 509 F.3d 791 (6th Cir. 2007); Federal Deposit Insurance v. Whinney, 921 F.2d 83,86 (6th Cir. 1990). The courts are reluctant to come to the aid of a claimant who through his own lack of due diligence has lost the other means that were available to him to obtain the evidence, as in United States v. Lopaz, 779 F. Supp. 13, 16 S.D.N.Y. 1991. The courts weigh a party’s needs in proportion to the degree of access he has to other sources of information. As the need for secrecy decreases, the burden on the seeking party decreases. If the grand jury has returned an indictment, the reasons for secrecy are diminished. If the grand jury does not return an indictment there is a strong argument that the need for secrecy remains intact, and there is a continuing need to protect the target of the investigation. See United States v. Rose, 215 F.2d. 617 (3rd. Cir. 1954) cited with approval, Proctor & Gamble, supra 681. Disclosure of grand jury transcripts was once frequently permitted in suits for treble damages brought against persons who were found guilty of criminal antitrust violations. According to James A. Backstrom, former head of the U.S. Department of Justice antitrust Dallas field office, that practice has almost disappeared. Backstrom said the Antitrust Division has a hard and fast policy of resisting disclosure of grand jury material, and those motions that were once granted for plaintiffs in civil antitrust cases are now unheard of. Backstrom said the Antitrust Division will also oppose discovery of documents defendants produced pursuant to a grand jury subpoena. Recently the Judiciary Committee of the House of Representatives requested certain grand jury transcripts from the grand jury conducted by Mueller into activities of certain persons regarding the 2016 presidential election. The Judiciary Committee intended to utilize the material in preparation for articles of impeachment of President Donald Trump. The Department of Justice objected. In a 71-page opinion, U.S. District Chief Judge Beryl A. Howell of the District of Columbia ordered the Department of Justice to turn over the documents, memorandum opinion of Oct. 25, application of the Committee of the Judiciary for an order authorizing the release of certain grand jury documents. Howell applied the tests discussed above, and found that a trial before the Senate, when it is acting as the court of impeachment, is a judicial body. Thus the hearing before the House Judiciary Committee is a proceeding preliminary to a judicial proceeding. The opinion dealt at length with historical discussion by the drafters of the Constitution describing the intended purpose of the impeachment process. It is an intriguing historical analysis. The court found that the importance of the disclosure outweighed the continued need for secrecy. I agree with the rule of strict compliance of the rule for grand jury secrecy. As a former federal prosecutor, I am of the opinion the grand jury should only be used to determine probable cause to issue criminal indictments. The nature of grand jury testimony is completely one-sided, based only upon questioning by the prosecutor. Grand jury transcripts should not be used for other hearings, nor for grand jury reports when no indictment is returned. Peter F. Vaira is a member of Greenblatt Pierce Funt and Flores. He is a former U.S. attorney and the author of a book on Eastern District practice. He acts as a special hearing master for Pennsylvania courts and clients. He can be reached at p.vaira@gpfflaw.com.

By Peter F. Vaira, for the September 25, 2019 edition of The Legal Intelligencer newspaper This is the first of a series on federal criminal discovery. This is a primer, not an exhaustive work, meant to give new practitioners to federal criminal practice an outline on the procedure. Criminal discovery still lags far behind the discovery available to both parties in a civil case. Many distinguished attorneys including Judge Billings Learned Hand, have been reluctant to provide a criminal defendant with much discovery. They believe that once the accused and his lawyer become aware of the prosecutor’s evidence, they will conjure a defense of perjured testimony and manufactured evidence. It is ironic that there is much more perjured testimony in everyday civil depositions than in criminal cases. Today’s column will discuss Rule 16, and Rule 26.2, of the Federal Rules of Criminal Procedure, and the required production of material by the prosecutor required by Brady v. Maryland, 373 U.S. 83 (1963).

Rule 16 Federal Rules of Criminal Procedure

 I will discuss Section 16 (a) (1) (E). It is important for counsel to be aware that Rule 16 requires that the defendant specifically request items subject to the rule. The government is under no obligation to produce items covered by Rule 16 without such a request. Once requested by the defense, the government must respond, and no further court order is necessary. The court will rule on contested requests and responses.

(E) Documents and Objects

This is the most important rule for federal criminal discovery and careful consideration should be given to making the requests. Upon the defendant’s request, the government must permit the defendant to inspect or copy books, papers, documents, data, photographs, tangible objects, buildings or places, if the items are material to preparing the defense, the government intends to use the item in its case in chief, or the item was obtained from or belongs to the defendant. This provision applies only to tangible items; they must exist, and the government cannot be directed to create them. Material to the defense means significant for the defense to have or know about in preparing to defend against the government’s case in chief. Materiality is defined as relating to the guilt or innocence of the defendant, and credibility of government witnesses. It is not intended to be limited to documents or items the government may use at trial but should also include items that may be helpful or detrimental to the government’s case. “The language and the spirit of the rule are designed to provide a defendant, in the interest of fairness, the widest possible opportunity to inspect and receive such materials in the possession of the government as may aid him in presenting his side of the case,” see United States v. Poindexter, 727 F. Supp. 1470, (D.D.C. 1989). The rule is not limited to admissible documents. A document is material as long as it will play a material role in uncovering admissible evidence, aiding witness preparation, impeachment of witnesses or rebuttal,as in United States v. Lloyd, 992 F.2d 348. D.C. Circuit (1993). See Cary, Singer, Latcovich, “Federal Criminal Discovery,” American Bar Association, 2011. The U.S. District Court for the Eastern District of Pennsylvania Local Criminal Rule 16.1 is particularly helpful. The rule requires counsel for the government and defense counsel to confer regarding discovery within seven days of the arraignment. At that conference, the government is obliged to either provide the discovery requested pursuant to Rule 16 or agree to produce it as soon as possible. If a discovery demand is refused, the government’s attorney must state in writing why disclosure is not proper. Parties are required to attempt to resolve the issues before submitting the matter to the court. The U.S. District Courts for the Middle and Western Districts of Pennsylvania do not have such a local rule.

Disparity Between Federal and State Practice

Practitioners should note that the extent of the pretrial discovery in the federal system is much more limited than in Pennsylvania state criminal practice. In state practice, the defendants, in the discretion of the court, may obtain the names and addresses of any eyewitnesses to the crime. Federal defendants are not entitled to any witness list at all, although any witness’ prior statements are available pursuant to Federal Criminal Rule 26.2 at the time the witness testifies, which is discussed below. See, Vaira, E.D. Pa. “Federal Practice Rules” (Gann), (2019); Comment on Local Rule 16.1.

Witness Statements Rule 26.2

Federal Rule of Criminal Procedure 26.2 pertains to producing prior statements of a witness who testifies at a prior trial or other criminal proceeding, including the grand jury. The rule provides that after a witness testifies in a criminal case, on motion of the party who did not call the witness, the court will order the party who called the witness to produce for examination any statement of the witness in possession of the attorney that relates to the subject matter of the witness’ testimony. The court may recess the proceedings to permit opposing counsel to examine the prior statement. Statement is defined as any statement the witness makes or signs or otherwise adopts, or any substantially verbatim statement of the witness’ oral testimony, including the witness’ prior grand jury testimony. The most common prior statements are FBI Form 302 witness interview reports. These are rarely adopted by the witness, (most likely never seen by the witness) and are not verbatim. Despite this apparent failure to qualify as a prior statement to be produced, federal practice in all federal courts is that the Form 302s are turned over to the defense counsel. The major problem with this rule is the time for turnover. Technically, the prosecutor does not have to turn over the statement until the witness has completed his direct examination. The court has the authority to grant a recess while the attorney examines it; however, that is not a good practice. The attorney needs time to run down all the facts disclosed and all leads therefrom, to conduct a good cross examination. In many federal districts, prosecutors distribute such statements several weeks ahead of trial, but that practice varies with each U.S. Attorney’s Office, and often varies with individual assistant U.S. attorneys in the same office. Although the court cannot formerly order such statements turned over in advance of trial, many district court judges make it known, unofficially, that the statements should be turned over well in advance of trial. Early production is good procedure. It permits the defense attorneys to be prepared for a trial on the facts. Early turnover of government witness statements generally produces early guilty pleas when the defendant is finally faced with the evidence, and the court usually does not have to grant a lengthy recess before cross examination. As in most criminal cases, defense counsel should seek advice from practitioners who have appeared before the trial judge. Each has his own procedure, and a knowledge of the judge’s position will be a great help in dealing with the prosecutor.

‘Brady’ Material

The U.S. Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963), set out a fundamental principle that in the criminal justice system in the United States the government must disclose information to the accused that is favorable either to guilt or punishment. Today’s column deals with Brady material which can influence sentencing. This application of the Brady principle is greatly overlooked by prosecutors, defense counsel, and the courts. Ninety percent of the federal criminal cases filed result in guilty pleas. Of those that go to trial, 95% result in guilty findings. Thus, in the vast majority of the federal criminal cases, the sentencing process is crucial. The Brady test in the guilt or innocence phase is whether the failure to disclose the information “undermines confidence in the outcome of the trial,” see Kyles v. Whitley, 514 U.S. 419 (1995). In the sentencing process, I propose the issue should further include whether the withheld information could have affected the punishment awarded. There is a division among the federal circuits whether the prosecutor should advise defense counsel of Brady material before the defendant enters a guilty plea. Regardless of the rule in the applicable circuit, I propose that immediately following a guilty plea, or soon after a finding of guilty at trial, the defense counsel should file a Brady motion regarding the issues at sentencing. A good practice would be for the trial court to order such a filing; however, the ethical responsibility is on the defense counsel. The federal sentencing guidelines require an examination of the defendant’s conduct in various aspects. These include: the defendant’s role in the offense; was the defendant a leader of two or more accomplices, or was the defendant acting alone; was the crime a violation of his professional responsibility; how much was the actual loss to the victims, as opposed to the intended loss. Each of these findings can substantially affect the sentence. It is important to note that the burden of proof for the government on each of these is mere preponderance of the evidence. A document or a statement of an accomplice known to the prosecutor of the investigators could easily change the weight of the evidence in favor of the defendant on one or more component. I am aware that prosecutors usually state that they are aware of their continuing Brady responsibilities including evidence pertaining to sentencing. I suggest a formal filing by defense counsel on the specific elements required by the sentencing guidelines that will direct the prosecutor to reexamine the proof and force him to notify the investigative agents, who are usually more aware of various aspects of the evidence. I suggest that the Brady request filed by defense counsel regarding sentencing also be sent directly to the probation officer who will be very interested in the prosecutor’s response. The obligation on the prosecutor, in the sentencing phase is more than the dictates of Brady. Rule 3.8. Pennsylvania Rules of Professional Conduct provides that “ … in connection with sentencing (the prosecutor) is to disclose to the defendant and the tribunal all mitigating information.” Rule 3.8 is applicable to federal prosecutors. This is much broader than the Brady test discussed above. Defense counsel should cite Rule 3.8 in the sentencing Brady request. Peter F. Vaira is a member of Greenblatt Pierce Funt and Flores. He is a former U.S. attorney and the author of a book on Eastern District practice. He acts as a special hearing master for Pennsylvania courts and clients. He can be reached at p.vaira@gpfflaw.com.

By Peter F. Vaira, for the July 16, 2019 edition of The Legal Intelligencer newspaper Organized crime has played a major role in the history of law enforcement of this country since the 1930s. It has been the subject of numerous legislative acts by congress, enforcement programs by presidents of the United States and federal law enforcement agencies. The effort was aided by the occurrence of several significant events as I will describe below. The government’s effort required skilled prosecutors, the educated use of the investigative power of the grand jury, dedicated U.S. senators who passed original legislation, and skilled investigators who knew how to develop informants and cooperating witnesses. For many reasons that combination of talent and energy has severely dwindled and the investigative effort against organized crime is no longer a national program. Organized crime in the United States is largely the operation of a criminal organization known as La Cosa Nostra (LCN). It is in the business of crime for profit. Although there are many other criminal organizations operating in the United States and other parts of the world, none are as organized and operate with the discipline as the LCN. I would select the actual beginning of the government’s efforts against organized crime with the creation of what became known as the McClellan Committee of the U.S. Senate in 1957. That committee formed the Permanent Subcommittee on Investigations with Sen. John McClellan as chairman. Sen. John Kennedy was a member of the committee; his brother, Robert Kennedy, became chief counsel. The committee exposed the nationwide operation of organized crime and its influence in labor unions. The committee drafted and successfully passed the Labor Management Reporting and Disclosure Act in 1959, which put labor unions under federal jurisdiction and exposed illegal practices that became known as labor racketeering. This was a milestone in the law enforcement effort against organized crime. The next significant event was the creation of the organized crime and racketeering section in the Criminal Division of the Department of Justice in the Kennedy administration. When John Kennedy became president, he appointed his brother as attorney general. Robert Kennedy soon discovered that the Justice Department in Washington, D.C., had very few attorneys with any familiarity with organized crime. The U.S. attorney’s offices in the field were no better. At that time, all assistant U.S. attorneys were political appointments who were generally replaced, along with the U.S. attorney, when a new political administration took office Attorney General Kennedy found he had very few experienced prosecutors in Main Justice in Washington or in the field. At that time, the FBI had little experience in dealing with organized crime as J. Edgar Hoover, the FBI director, was not enamored of pursuing organized crime cases because they required too much investigative work, the use of informants, and did not produce the numbers of arrests and convictions that he wanted. In response to this situation, Attorney General Kennedy formed the organized crime and racketeering section and began hiring experienced attorneys for service in that section. Kennedy sent these attorneys, designated as special attorneys, to certain U.S. attorney’s offices where they received little assistance from the individual assistant U.S. attorneys or the FBI. What they did have was the investigative power of the federal grand jury. Until that time the investigative power of the federal grand jury was little used by the federal prosecutors. Grand juries met to hear agents read their investigative reports and then vote on returning an indictment. The law has always been that the federal prosecutor does not need any probable cause to issue a grand jury subpoena for records or for personal appearance of individuals. The special attorneys began issuing subpoenas for organized crime figures to appear before the grand jury, or subpoenas for persons employed in companies they controlled, and subpoenas for the records of those companies. There were few grounds to object to such subpoenas. Therein lay the key to combating organized crime. The use of the grand jury is an investigative power that exists in no other civilized county. The special attorneys from the organized crime section took advantage of this power. This investigative effort led to the formal creation of the organized crime strike forces, which were groups of federal trial attorneys sent to key cities where organized crime groups were located. Buffalo, New York, Chicago, New Orleans, Boston and New York City were among the first strike forces. The total later came to over 10 key offices across the country. This concept continued in the Justice Departments of the administrations of Presidents Lyndon B. Johnson, Richard Nixon, Gerald Ford, Jimmy Carter and Ronald Reagan. Although the operation of the strike forces was sometimes hampered by bureaucratic conflicts between the politically appointed U.S. attorneys and the administrative leaders in Justice Department in Washington, the strike forces broke major organized crime strongholds, including control of the New York waterfront and control of the Las Vegas casinos. There were many similar results in other parts of the country. As part of my career in the Department of Justice, I was fortunate to head the Philadelphia and the Chicago strike forces. Two important statutes were passed by Congress, which gave prosecutors enormous investigative power. The first was the enactment of the federal electronic surveillance act, which permitted law enforcement to install secret wire taps on the phones and bugging devices in the homes or offices of persons suspected of criminal activity, after getting formal approval from a federal judge. The second was the enactment of the federal immunity statute. This statute permitted prosecutors to petition a court to order a person to testify over his assertion of the protection of the right of self-incrimination in a grand jury, in return for immunity from prosecution of criminal acts disclosed in the person’s testimony. This included the power of the court to incarcerate the person if he continued to refuse to testify. Both these statutes were upheld by the courts. A major development was the use of the federal mail fraud statute, which permitted prosecutors to charge violations of local and state criminal acts that were not covered by federal criminal statutes. The mail fraud statute was originally passed to prevent fraud in the sale of goods bought or sent through the mail. The statute under the interpretation of the federal prosecutors permitted federal prosecution of conduct, which was illegal under local law, if the U.S. mail was used in some tangential manner, such as sending a message or a receipt for a transaction. The use of the mail fraud statute allowed federal prosecutors to bring criminal charges involving bribery or conspiracy against local officials and organized crime figures who otherwise would be beyond the reach of federal law. Another statute commonly called the RICO statute enabled federal prosecutors to use a combination of federal statutes to create a new federal crime, which also permitted forfeiture of property and funds gained by the illegal activity. These federal statutes caused J. Edgar Hoover to assign his agents to become actively involved in the investigative process. FBI agents began to investigate actions that were prohibited by federal statutes. Organized crime activity usually does not have persons voluntarily reporting such violations to law enforcement. There are few willing witnesses. Agents needed to develop confidential informants. These are persons who were involved in the criminal activities, or persons who were privy to such actions, but would never publicly come forward with information for fear of their lives, or fear of damage to their professional reputations. Many of the persons involved in criminal activity, when confronted with their incriminating actions, plead guilty and testified against their organized crime co-conspirators. This was an ongoing process in the federal law enforcement effort against organized crime. The effort to develop witnesses is essential to any intelligence or law enforcement program. For example, the national security program in the Clinton administration was criticized for concentrating on electronic surveillance measures, while downplaying the use of informants and cooperating individuals. The sophisticated effort I described above has become fragmented and has all but disappeared. Some officials have stated that the reason for the demise is that much agent and prosecutor time is now devoted to national security to prevent another 9/11 attack. Former prosecutors and agents that I have spoken with do not feel that the security effort is the reason for the decline of the effort against organized crime. Several factors are involved. As a former federal prosecutor with involvement in the strike forces in the organized crime section it is my opinion that a major reason for the decline in the effort against organized crime is the lack of a national program directed by the Justice Department and the FBI. There is no national program between prosecutors and agents to select targets and to develop informants or develop cooperating witnesses through prosecution. Without organized crime subjects or targets, trial attorneys are assigned other matters. Organized crime has not gone away; it is alive and always ready to penetrate areas of industry. The upheaval of the leadership of the FBI and the Department of Justice has added to this problem. National programs need national leadership. High-ranking officials in the Justice Department and the FBI need to make a realistic examination of what has caused the decline of the once unified effort against organized crime. Peter F. Vaira is a member of Greenblatt, Pierce, Funt & Flores. He is a former U.S. attorney, and is the author of a book on Eastern District practice that is revised annually. He can be contacted at p.vaira@gpfflaw.com.