FEDS REBUTTAL IN PROTECTION ORDER ON DISCOVERY, LACKS EVIDENCE, CONTAINS SUGGESTIONS.
Updated: Apr 5
In case you haven't followed on this site, and over on our radio show, you know we have discussed the "protection order," that the feds want in place for the ongoing indictment/trial in Philadelphia.
The main argument the feds initially sought was a wide ranging protection order in so that, defendants could not have physical copies of the discovery in the ongoing indictment. They merely and widely suggested that these materials, which the defendants should rightfully have acquired by now, or at least begun by now, has been stalled by a stubborn prosecution, who wholeheartedly believes they are attempting to convict Al Capone. Last week the judge overseeing the case, refused to accept the feds wide encompassing, long winded sermon on murder and mayhem, and instructed them to scale it down and resubmit the paperwork, which the feds did, and it laded on pacer this afternoon.
The feds first set of arguments prior to today, used words like disseminate, murder, mafia, mob, LCN, retribution and more. There stance, was simple and basic. They did not want under any circumstance, any defendant, having a physical copy of any of the discovery in this case. Even though they didn't get specific about one portion, they certainly did today. The feds stance was, they were (A) afraid that physical copies of the discovery would be handed out to journalists, or others. (B)who would attempt, or would, intimidate witnesses. Keep in mind a few of the defendants in this case, are under house arrest, and the idea that they can just up and leave the house, and meet with their attorneys, especially with an ongoing pandemic, would be extremely difficult. You also have to take into consideration the sheer bulk of the discovery involved in this case. It's not a simple, get up and go four days a week for six hours. Attorneys have other clients and other obligations, which further made the feds "wants" a little extreme. The idea that a defendant cannot access materials, which are being used to attempt to convict them from home, is a little absurd. Prior, as we said, the feds claimed that on the basis of discovery they felt that the defendants in this case, would in fact be able to 100% identify who the known informants in this case were via the paperwork, and were very apprehensive about it. They felt that "the defendants surely would disseminate who the cooperators were, and may seek to intimidate, threaten, and or harm the cooperators."
Before we get to todays "fed revelation," let me point out a few things. The feds consistently use the words "mob" "mafia" "LCN" "Capo" "Associate" and they weave these words like Dr. Suess. They claim, that the mafia is a secret organization, meanwhile they talk about it like a professor would. When Carmine Galante was snuffed out, just a few months prior, the DEA and FBI worked together to fabricate a story that Carmine Galante was a heavy narcotics trafficker, and the new boss of the Bonanno crime family. While Galante at the time was warring with a faction of the Bonanno crime family(Rastelli and Massino) and the Gambino crime family, what was dubious of the FBI and the DEA is that they lied. They fed the newspapers information they made up in order to (A) Enhance their case, and by doing so, allowed them not only to acquire more money for prosecutions and investigations, but also drove those warring into a more vicious turf war. The DEA was looking to acquire more funding to take on Narco traffickers, and by launching a narrative that Galante was the new boss in town and correlating that to narcotics, they were given a big surplus. Galante was no longer the narcotics trafficker they said he was, but he wasn't even the boss. They have admitted along with the feds in the last few years about "fabricating that story for more funds, and more newspaper headlines." I bring all that up, because what dropped today, while not imaginary in any sense, is an old tale from 1960, not 2021. I would buy the retribution line if it was 1960 or hell even 1980, 1991. Not now. So let's get to the feds arguments, everything in bold we will talk about here.
Hereby moves for a protective order concerning the discovery, Jencks Act, and Giglio materials provided in this case. The government seeks an order preventing the defendants from possessing Jencks Act and Giglio materials outside the presence of their attorneys. The government also seeks an order prohibiting the dissemination of discovery, Jencks Act and Giglio materials to third parties.
After considering the filings of the parties, this Court denied the government’s motion on January 29, 2021. ECF Doc. No. 169. This Court reasoned that the government’s request was overly broad and unduly burdensome especially in light of the COVID-19 pandemic. However, the Court permitted the government leave to file an amended motion for a protective order.
With this instant filing, the government files a revised request for a narrowly tailored protective order. As outlined herein, the government no longer seeks to prevent the defendants’ possession of all discovery materials in this matter. Instead, the government seeks to prohibit the defendants from possessing any Jencks Act and Giglio materials.
Additionally, the government seeks to prohibit the defendants or their attorneys from disseminating any disclosed materials that they are permitted to possess (discovery as to the defendants, and discovery, Jencks Act, and Giglio as to counsel) to third parties. As explained below, the government seeks this order out of a concern that allowing dissemination of the materials could endanger the safety of government witnesses.
The LCN also, traditionally, attempts to intimidate, harm or kill cooperating witnesses that the government relies upon in connection with its prosecutions. As is set forth in the superseding indictment in this case, the government will call several cooperating witnesses and civilians to testify about the crimes alleged in the indictment. And therefore, the government believes that, as further explained below, a protective order is needed to ensure the safety of government witnesses.
The government also has disclosed and will continue to disclose, other non-discoverable reports and documents that mention and/or identify government witnesses or otherwise clarify the nature of the government’s evidence.1 To protect the safety, privacy, and identity interests of non-agent government witnesses and other third-party victims and witnesses, the government respectfully requests that the Court enter a protective order limiting the possession of Jencks Act and Giglio materials to defense counsel.
Protective orders are appropriate when, for among other reasons, the discovery materials contain personal identifying information, and when needed for the protection of witnesses that may appear before the court. Rule 16 of the Federal Rules of Criminal Procedure provides in pertinent part that: “At any time the court may, for good cause, deny restrict, or defer discovery or inspection, or grant other appropriate relief“ While Rule 16 does not set forth specific instances that justify a protective order “it is obvious that one would be appropriate where there is reason to believe that a witness would be subjected to physical or economic harm if his identity is revealed.”02/07/21 Page 5 of 11 To protect the privacy and safety of the witnesses in this matter, and in light of the above-cited, and previously cited, precedent, the government seeks a protective order prohibiting defense counsel and the defendants from providing copies, or writings that contain the substance, of the discovery materials provided by the government to third-parties. Similarly, the government seeks a prohibition on the defendants possessing the Jencks Act and Giglio materials to ensure the safety of witnesses.
Dissemination of the materials to third parties serves no legitimate litigation related function and only serves as a means to identify, intimidate or influence witnesses. A number of the defendants’ criminal associates will be cooperating witnesses for the government at trial. The government believes that the public dissemination of these materials would place the cooperating witnesses at significant risk of harm if publicly identified. In the government’s view, the concern for the safety of the witnesses is great and warranted. Case 2:19-cr-00071-RBS Document 177 Filed 02/07/21 Page 6 of 11 The government believes that many witnesses in criminal cases face a degree of risk of harm due to their cooperation or testimony; however, the risk to a witness is considerably higher given the nature of the offenses and if the disclosed materials are disseminated to third parties. Indeed, the government is aware of several instances of threats being made against witnesses in this case. When faced with potential lengthy sentences, the defendants, particularly defendants who have demonstrated a capacity for violence and/or association with individuals with a capacity for violence, are more likely to commit or orchestrate violence against witnesses in order to prevent conviction. The government has identified many witnesses for trial some of whom are incarcerated and others that are at liberty and residing within the area. Some of the government’s witnesses are people who are very closely associated with the defendants. The potential for intimidation of those witnesses is great if this Court does not limit the ability to copy and disseminate the materials.
The government believes that there is a significant risk that the discovery, Jencks Act and Giglio materials will be circulated in public if the Court does not prohibit such dissemination. The government is aware of instances in other recent cases in which material provided by the government to defense counsel, and by counsel to a defendant, has been widely disseminated. For instance, in a recent prosecution of a member of the Philadelphia LCN, Phillip Narducci, and an associate of the LCN, James Gallo, the Honorable Timothy J. Savage issued an order prohibiting the dissemination of the disclosed materials. EDPA Crim. No. 19-72, Doc. No. 52. However, despite that order, items of discovery and Giglio information were disseminated to online websites in which the government’s witnesses were identified. Soon thereafter, a government witness in that case was subjected to threats of violence and intimidation and was Case 2:19-cr-00071-RBS Document 177 Filed 02/07/21 Page 7 of 11 forced to relocate away from the Philadelphia area in order to ensure their safety. Those same websites, journalists and social media outlets have been reporting upon, and following the prosecution of, this instant case. Given the LCN’s reputation for and use of violence and intimidation, prior recent behavior of intimidating witnesses by its members, and the reality that the current defendants are facing charges that involve inherent risks of harm to others, there is good cause to limit the dissemination of materials in this case. For similar reasons, as a result of multiple instances of intimidation and threats against cooperators, the Clerk for the District Courts of the Eastern District of Pennsylvania no longer uploads plea or sentencing documents to PACER, as a universal (i.e., not case-specific) safeguard to prevent cooperator information from being electronically searched or disseminated from court web sites. By keeping the Jencks Act and Giglio materials out of the possession of the defendants, and in the sole possession of their counsel, there will be no risk that other individuals will have possession of the material. By keeping these materials out of the defendants’ possession there will be less basis for verification and full knowledge of witnesses’ cooperation, and hopefully a lowered safety risk to the witnesses. The government’s request will not adversely affect the defendants in their legitimate preparation for trial.
The only limitation the government seeks is on the physical possession and dissemination of these Jencks Act and Giglio documents to the defendants and third parties. For these reasons the government seeks an order prohibiting counsel from providing a physical copy of the Jencks Act and Giglio materials to the defendants or to third parties, or providing their substance in writing. The defendant shall not be allowed to print or email any item produced, or to in any way copy, reproduce, possess or disseminate any audio or video recordings included in the materials. The defendants have a strong incentive to disseminate the documents, and it would be nearly impossible to monitor their actions and to detect any such sharing of the material.
While I know that was long winded, of the 14 pages submitted, those are all highlights the feds are indeed asking for. Some may think that disallowing defendants from obtaining physical copies, is acceptable or understandable let's explain why that just isn't as easy as it sounds. For starters, they are asking for all copies, all documents, all discovery in certain instances only be accessed through attorney client privilege in- person. No emails, no copies, no nothing. This goes back to the idea that with a case involving thousands of pages, a defendant cannot have copies of his own case. He cannot have copies of what he is accused of. He cannot have copies of wiretaps. In a case of this volume, also considering a pandemic, and considering house arrests and scheduling I don't see how the feds can argue that it doesn't stop the defendants from preparing from trial. Of course it does. It's putting parameters on not what they receive but how they actually receive it. The secondary argument, while the first is understandable to an extent, is total nonsense. Dissemination of the discovery would endanger the safety of government witnesses. Furthermore, Dissemination of the materials to third parties serves no legitimate litigation related function and only serves as a means to identify, intimidate or influence witnesses. When it comes to dissemination, the feds encompass that non stop throughout the rebuttal. First and foremost, let's be LOGICAL here. If there are witnesses against you, surely by now, you know who they are. It doesn't take a government paper stamp to prove that. According to previous paperwork the feds have an induction ceremony taped. If that is the case, and the feds have left the cooperators on the streets, to fend for themselves, then I don't know what to say. The idea that somehow their paperwork is going to be the smoking gun to me, is an invalid argument. Go back to the "induction ceremony." Surely whomever was there, if such an event took place, knows who else was there, and knows who is no longer around. You need a government paper slip for that?
Taking it a step further, you think that those involved in certain crimes alleged don't know who also was allegedly there, and is now missing? The idea that the government argues that paperwork will prove it, is a bit of a stretch. Remember they claim to know all about the secret club, the "mafia." You mean to tell me they can't compute "word on the street" or "Charlie's not around, where'd he go?" It's like they want to play a game of "we think, we suspect, we figure;" meanwhile the paper work is the DNA swab. It's preemptive to suggest, and audacious to assert that someone hell bent on retribution would need the governments head nod to do what they gotta do. So disseminating, in their argument falls flat. A little pretentious too I might add. As if they hold the key to everything. Listen up, if you think nobody knows whose talking, your wasting your breath. Also, ensuring information doesn't get leaked to 3rd parties, last time I checked, is not going to stop someone from getting hurt in a retaliatory fashion. That's the most absurd argument I've ever heard. "Dissemination of the materials to third parties serves no legitimate litigation related function and only serves as a means to identify, intimidate or influence witnesses. " Buzzer. Nope, not at all, in fact dissemination helps defendants defend themselves in court, and not for any other reason. Shouldn't they know whose testifying against them? You've got to be kidding me.
Now, we get to the fun part. "The government believes that there is a significant risk that the discovery, Jencks Act and Giglio materials will be circulated in public if the Court does not prohibit such dissemination. The government is aware of instances in other recent cases in which material provided by the government to defense counsel, and by counsel to a defendant, has been widely disseminated. For instance, in a recent prosecution of a member of the Philadelphia LCN, Phillip Narducci, and an associate of the LCN, James Gallo, the Honorable Timothy J. Savage issued an order prohibiting the dissemination of the disclosed materials. EDPA Crim. No. 19-72, Doc. No. 52. However, despite that order, items of discovery and Giglio information were disseminated to online websites in which the government’s witnesses were identified. Soon thereafter, a government witness in that case was subjected to threats of violence and intimidation and was Case 2:19-cr-00071-RBS Document 177 Filed 02/07/21 Page 7 of 11 forced to relocate away from the Philadelphia area in order to ensure their safety. Those same websites, journalists and social media outlets have been reporting upon, and following the prosecution of, this instant case. Given the LCN’s reputation for and use of violence and intimidation, prior recent behavior of intimidating witnesses by its members, and the reality that the current defendants are facing charges that involve inherent risks of harm to others, there is good cause to limit the dissemination of materials in this case." This is the most laughable bit of nonsense I have ever seen. First of all, their allegations have never been tried in a court, these allegations have never been proven. While those documents were released, it was in NO CONNECTION to PHILIP NARDUCCI. The informant in that case, was publicly known before the paperwork ever hit the ground running. Also that informant was never still in Philadelphia after the indictment. He was moved after the arrest of Philip Narducci, not after "threats of violence and intimidation ," that's all nonsense, and should have no bearing on this case whatsoever. If your going to lop in prior instances of delusions, then how are you making a current and valid argument in the present? One instance of an allegation, which was never proven, nor prosecuted, nor confirmed other than hersey by an overbearing prosecutor John Han, has ZERO to do with this case or indictment. Additionally, that informant was a terrorist, who also was caught on wiretap attempting to borrow money from dozens of people in a scheme to rip people off, so if you're going to cite other allegations, perhaps be "full frontal" about it. Merely suggesting a lop sided viewpoint, and baseless allegations in an indictment prior to this one, is beyond pathetic. It's used as fodder to suggest, rather than using logic and facts of the matter. As if because the past of the informant in another case, ruined his life. He was a garbage pail, and lying terrorist here on an expired visa, and god forbid the feds ever have to acknowledge that. That's the point with their argument, what the hell does one have to do with another? If there was proof, that such an event took place with the people they named, believe me they would have prosecuted. They didn't. It's bullshit.
"By keeping these materials out of the defendants’ possession there will be less basis for verification and full knowledge of witnesses’ cooperation, and hopefully a lowered safety risk to the witnesses. The government’s request will not adversely affect the defendants in their legitimate preparation for trial. " Less verification and full knowledge of witnesses cooperation. Really? Everyone knows what they were arrested for. Everyone knows what could be and might not be. Stating that you don't want the defendants knowing, and assuming that a piece of paper is somehow going to be the all the end all, is a joke. Neverminded possessing materials, do you think people won't tell others what's going on with their own case? Why waste time arguing about paperwork, when the reality is, reading it, and telling others about it is NO DIFFERENT. The reason this argument is made, comes down to one GLOWING FACT. They DO NOT WANT, the informants in this case's past coming up. They don't want anyone calling the informants out on past transgressions and lies. They don't want the public to be faced with the facts that informants lie, cheat, rob, steal, and get paid for it as long as they tell on people, and tell the story the feds want them to tell. You can't tell me anything different. If a piece of paper is the HOLY GRAIL, then I feel bad for you. As if Joe Blow handing me a title page is going to somehow make everyone convulse and die on the spot. I would think rather, just the facts of whose ratting is worse than a coffee stained four pages. Choosing to become an informant, puts you in harms way, not the paper where you signed your name. Once again, they don't want it out, because the devil is in the details. Look at that puke, Anthony Persiano, and his past. He's the bottom of the barrel and we have talked about all the things he was up to while on the FBI payroll, and you think there isn't more? Of course their is, which is why they don't want it out, because God forbid any jury see them for the liars they are. That's the real reason, and don't accept anything else they say as fact. They make an argument about pacer, where everyone obtains court records. They don't want anything there either. They don't want the cushy deals these bums get to be seen. Why? You know why.
In final, is the worst thing that defendants cannot acquire physical copies? No. However it does limit their ability to defend themselves in a timely manner, and that's the truth. Keeping aspects away from a defendant handicaps them. Forcing an imposed schedule or variation of how anything is taken in, or explained, or digested, seems to me a little lopsided. Wouldn't it just be easier, to say, you can get copies, you can have what you want, but if any of these get out, your in deep shit. That's the better route, but because the feds want to control every single aspect of a case, especially publicly, god forbid they lose face, just makes zero sense to me. A defendant should have access to whatever they need to fight a case, and not be subjected to rules that the feds break routinely in other cases, and I know I don't need to go there. Give defendants what they need, stop worrying about public perception, conviction rates, and political power, and ego. Until the game is level, nobody can defend themselves in the proper manner. John Boone seeing paperwork won't change the jury, won't change anything for the informants. John Boone finding out that said informants are liars, cheats, and scumbags getting paid to inform on others while continuing to break the law is exactly what they fear and don't want. That's the only reason they are uptight about the Narducci thing. They lost, and not because any document got out, but the secret of the bastard they bed, did.