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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA :
:
vs. : 3:CR-09-272
: (Kosik, J.)
: (Electronically Filed)
MICHAEL T. CONAHAN, and :
MARK A. CIAVARELLA, JR. :
:
Defendants :
MOTION OF DEFENDANT, MICHAEL T. CONAHAN, FOR
DISCLOSURE OF EXCULPATORY EVIDENCE AND EVIDENCE/
MATERIALS IMPEACHING OR BEARING UPON THE CREDIBILITY
OF A GOVERNMENT WITNESS
The Defendant, Michael T. Conahan, by and through his undersigned
counsel, pursuant to the dictates of Kyles v. Whitley, 514 U.S. 419 (1995), Brady v.
Maryland, 373 U.S. 83 (1963), U.S. v. Agurs, 427 U.S. 97 (1976), U.S. v. Bagley,
473 U.S. 667 (1985), Giglio v. U.S., 405 U.S. 150 (1972) and Rule 16 of the
Federal Rules of Criminal Procedure, respectfully moves this Honorable Court for
the entry of an order requiring the government to disclose and provide the
2
following specific information and material known to, or that with the exercise of
due diligence, should be known to the government.
INTRODUCTION
1. Pursuant to the above, the Defendant requests all evidence not
otherwise specified herein, which may be favorable to the Defendant and material
to the issue of guilt or punishment, or could reasonably weaken or affect any
evidence proposed to be introduced against the Defendant, or could be used in any
way to impeach or discredit government witnesses, or which is relevant to the
subject matter of the Indictment, or in any manner may aid the Defendant in the
ascertainment of the truth, whether or not such evidence is deemed admissible at
trial, in addition to any other matters known to the government that may be
exculpatory or otherwise favorable to the defendant.
2. If the requested materials contain statements which the government
determines fall within the scope of the Jencks Act, the government should be
required to disclose said documents, since the obligation of the government to
produce Brady and Giglio materials is of a constitutional dimension. U.S. v.
Bagley, 473 U.S. 667(1985).
3. If the government’s attorney questions the exculpatory nature of any
information requested herein or the materiality or relevance of any information
3
requested herein, and on that basis seeks to deny disclosure, the Defendant, in the
alternative, requests that such information be submitted to the Court for an in
camera inspection . U.S. v. Marshall, 985 F.2d 901 (7th
Cir. 1993); U.S. v.
Walden, 578 F.2d 966 (3rd
Cir. 1978) ; U.S. v. Quinn, 364 F.Supp 432 (ND Ga
1973).
4. In order to comply with the requests contained in his Motion, the
Defendant requests that the government make an affirmative search of all its
records and information and those of all related government agencies and
repositories of possible evidence responsive to these requests, as well as all state
agencies involved. See, Strickler v. Greene, 527 U.S. 263 (1999); Kyles v. Whitley,
514 U.S. 419 (1995).
5. Pursuant to Strickler, supra, and Kyles, supra, a certification from the
government is requested that an inquiry was made of all law enforcement
authorities involved in this prosecution for the foregoing exculpatory evidence; the
prosecutor’s certification is requested that a good faith effort was made in seeking
the discovery requested, and to the extent that such discovery was found, it was
provided, and to the extent the prosecutor believed such discovery should not be
provided, it was refused.
4
6. In addition, the Defendant requests a certification from the
government that the requirements outlined in Deputy Attorney General David W.
Ogden’s memorandum of January 4, 2010 to federal prosecutors entitled Guidance
for Prosecutors Regarding Criminal Discovery has been followed in this case and
that all information uncovered during this process has been disclosed to the
Defendant.
7. 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.
SPECIFIC REQUESTS
8. The name and address of every person who the government has
interviewed in connection with this case, even if it does not intend to call the
person as a witness at trial.
9. Every written statement, transcript, recording, summary or notes of
oral statements given by any person described in Paragraph 9 above.
10. Any written or recorded statement including any testimony before any
court or grand jury or the substance of any oral statement obtained from any person
who will not be called as a government witness at trial, which may assist the
Defendant in the preparation of his defense or which may discredit any
5
government witness or which may otherwise be exculpatory. Brady v. Maryland,
supra.
11. Any information or evidence, which would tend to show bias or
prejudice against the Defendant on the part of any government witness,
investigator or prosecutor or that said witness or investigator has a motive to falsify
or distort his/her testimony. See, Pennsylvania v. Ritchie, 480 U.S. 39 (1987); U.S.
v. Strifler, 851 F.2d 1197 (9th Cir. 1988). This request shall be deemed to include
any evidence or information which may tend to impeach the credibility of any
government witness whether or not such information or evidence is deemed
admissible at trial. Brady v. Maryland, supra.
12. Any reports, memoranda, press releases or other documents made by
any federal agent in connection with this investigation, which is material or
relevant to the preparation of a defense or which may assist the Defendant in
impeaching the credibility of any government witness or which is otherwise
exculpatory. Brady v. Maryland, supra.
13. The names and addresses of all persons known by the government
who may give testimony or information favorable to the Defendant in this case and
a summary of that testimony or information. Brady v. Maryland, supra.; U.S. ex
rel. Meers v. Wilkins, 326 F.2d 135 (2nd
Cir. 1964) .
6
14. Material of any kind whatsoever bearing upon the guilt or innocence
of the Defendant, or upon the credibility of any witness, or the reliability of any
tangible evidence.
15. Any evidence that any prospective witness is under investigation by
federal, state or local authorities for any criminal or official misconduct. U.S. v.
Chitty, 760 F. 2d 425 (2d Cir.), cert. denied, 474 U.S. 945 (1985).
16. Any information and/or evidence, including any medical or
psychiatric reports or evaluations, tending to show that any prospective witness' s
ability to perceive, remember, communicate, or tell the truth is impaired; and any
evidence that a witness has ever used narcotics or other controlled substance, or is
an alcoholic. U.S. v. Strifler, 851 F. 2d 1197 (9th Cir. 1988); Chavis v. North
Carolina, 637 F. 2d 213, 224 (4th Cir. 1980); U.S. v. Butler, 567 F. 2d 885 (9th
Cir.1978).
17. State whether any payment, grant or promise of immunity, promise or
agreement not to prosecute for any offense, recommendation or non-
recommendation at sentencing or any other favorable consideration, in federal or
state court, direct or indirect, has been made to any witness, any person or entity
interviewed by any federal, state or local law enforcement officer, or any other
7
person or entity, in connection with the investigation or prosecution of this case, or
the agents or relatives of any such person.
18. If the answer to Paragraph 17, above, is in the affirmative, the
Defendant requests the name, address, and telephone number of each person who
received or benefitted from such payment, grant, promise, agreement,
recommendation, non-recommendation, or any other favorable consideration, and
requests to be permitted to inspect and copy every document or paper in the
possession of the government which authorizes, approves, implements, or
evidences any such payment, grant, promise, agreement, recommendation, non-
recommendation, or any other favorable consideration or the summary of any oral
agreement to such effect.
19. Any and all statements, testimony, memoranda, interviews,
documents or summaries, relating to this case, or any portion thereof, by any
person, that contradict, in whole or in part, any statement (by that person or any
other person) that the government does not intend to use or rely on in any manner
in connection with the trial of this case. Kyles v. Whitley, 514 U.S. 419 (1995).
20. Any evidence that tends to minimize or negate the probative effect of
the government's evidence of Defendant’s participation in the alleged crimes set
8
forth in the Indictment. See, U.S. ex rel. Smith v. Fairman, 769 F.2d 386 (7th Cir.
1985).
21. Any written or oral statement and/or confession made by the
Defendant which is, or may be, unknown to defense counsel. See, Prosecutor of
Virgin Islands v. Martinez, 780 F.2d 302 (3d Cir. 1985).
22. Any information about any eyewitness for whom the prosecution has
a name and/or address, but whom the government does not intend to call at trial
and a copy of any statement made by or summary of an interview with such a
witness. Kyles v. Whitley, 514 U.S. 419 (1995); U.S. v. Cadet, 727 F.2d 1453 (9th
Cir. 1984).
23. Any information which would tend to lessen the impact of the
advisory Sentencing Guidelines on the Defendant in the event of a conviction,
including but not limited to the role in the offense, ignorance of the true scope of
any conspiracy and/or other crimes charged in the Indictment and any evidence of
acceptance of responsibility.
24. With respect to any participant in any of the conduct giving rise to the
criminal charge in this case, or any other government witness or person, was then
or is now cooperating with, in the employ of, or working at the behest of the
9
United States government or any law enforcement agency, either directly or
indirectly, specify the following:
a. The name and address of each cooperating witness.
b. The dates on which he was employed or cooperated.
c. The scope of his employment or cooperation including any oral or
written instructions given to the individual by any law enforcement
agent.
d. The time, date and location of each meeting between such individual
and any law enforcement personnel concerning his employment or
cooperation and the names and titles of each law enforcement
personnel participating in such a meeting.
e. Any reports, notes, correspondence, memoranda or other documents
relating to the employment or cooperation of such an individual with
any law enforcement agency.
f. Any statement made, or information or document provided by a
prospective government witness that conflicts in part, or in whole,
with: (1) the statement of another prospective witness, (2) a prior
statement made by the same government witness with regard to the
10
subject matter of the expected trial testimony of witness, or (3) any
other document or witness.
g. Any “records” maintained by law enforcement agencies relating to the
cooperating witness utilized in this case, including, but not limited to,
records evidencing: 1.) that the witness was given a code name, 2.)
that the witness was given an assumed/false identify, 3.) reasons for
cooperation, 4.) that the witness was given a polygraph examination,
5.) that the witness was briefed on entrapment, 6.) that the witness
executed contracts with any law enforcement agency, 7.) that the
witness executed any release forms, 8.) that the witness was advised
to pay Federal Income Taxes, 9.) that the witness was advised he
could not violate the law, 10.) the witness is required to protect his
false identity, 11.) the witness cannot use any illegal drugs, and 12.)
the witness consented to the recording of any conversation with any
party.
h. If given a polygraph exam, the results of any polygraph examination
performed on any potential government witness, as well as any
information concerning the failure of any potential cooperating
witness to submit to a polygraph examination.
11
i. Any press releases issued by prosecuting agency or official
concerning the investigation or prosecution of the witness.
25. With respect to the individuals described in Paragraph 24, please
provide the following regarding the benefits received by or promised to the
witness:
a. The terms of any agreement or understanding between the individual
and any law enforcement agency relating to his/her cooperation;
b. The case number and name of the prosecutions in which the
cooperating witness utilized in this case has previously been utilized
as a cooperating witness and/or testified;
c. The case names and numbers of any trials or evidentiary hearings at
which the cooperating witness has testified concerning his own prior
criminal activity, payments or rewards provided him by the
government, efforts made to induce others to participate in criminal
activity, or other purported law enforcement-related matters;
d. Any and all compensation or other benefit given to or offered to any
such individual;
e. Any ledger, sheet, or other document which details the sums paid or
benefits provided to the cooperating witness or his family in this and
12
other cases in which the informant assisted the government and the
purpose of each such payment;
f. Any information, whether or not memorialized in a memorandum,
agent’s report or other writing, regarding promises of immunity,
leniency, preferential treatment or other inducements made to the
cooperating witness or any family member, friend or associate of the
informant in exchange for the informant's cooperation, including the
dismissal or reduction of charges, assisting in matters of sentencing or
deportation, promises or expectancies regarding payments for
expenses or testimony or eligibility for any award or reward; In
addition to information regarding payments, promises of immunity,
leniency, preferential treatment or other inducements made to the
government witnesses, any records or information regarding
payments, promises of immunity, leniency, preferential treatment
offered or afforded to any family member, friend or associate of any
prospective witness in exchange for said witness cooperation;
g. Any information or records concerning any actual or implied threats
of investigation or prosecution (including deportation, exclusion, etc.,
by ICE (formerly INS)) made by the government to any prospective
13
government witness or family member or associate of the witness,
including information as to the underlying conduct precipitating such
investigations.
h. Any report, document or information which details the criminal
activities of the cooperating witness which were undertaken by him
without the authority or approval of the government, but for which the
government has elected, formally or informally, not to prosecute.
26. With respect to the individuals described in Paragraph 24, please
provide the following regarding prior conduct of the witness:
a. FBI rap sheet, NCIC printout, NADDIS, EPIC, NLETS, ATS, TECS,
and any other records available to the government reflecting the
arrest, conviction and investigative history of the cooperating witness.
b. Information concerning prior misconduct by the cooperating witness
in the performance of his role as an informant including: any prior
refusal of the informant to testify for or assist the government; any
prior allegation that the informant entrapped another person to commit
an offense or made false statements in connection with a criminal
investigation; and any prior “blackballing” of the informant by any
law enforcement agency.
14
c. Information concerning misconduct by the cooperating witness other
than in his role as an cooperating witness, including misconduct that
reflects a lack of candor, truthfulness or law-abiding character of the
informant, such as uncharged criminal conduct or fraud.
d. All information, records and transcripts which in any way indicate or
reveal that any prospective government witness, in connection with
this or any other case, has provided untruthful, false, misleading,
incomplete, or inaccurate information or testimony to: 1.) Any state or
federal law enforcement officer, government attorney or agency, 2.)
Any state or federal grand jury, and 3.) Any state or federal trial court
while testifying at trial and/or any related or preliminary proceeding.
e. Information reflecting the nature and extent of assets obtained by the
informant in connection with his illegal activities over the past ten
years.
27. With respect to the individuals described in Paragraph 24, please
provide the following regarding the witness’ credibility:
a. Any government agency files or other information revealing matters
relevant to the cooperating witness' credibility, mental or physical
health, narcotic or alcohol use, or any other dependency.
15
b. All information and records revealing any potential impairment of the
capacity of any prospective cooperating witness to observe, recollect
and testify about the events giving rise to the charges filed in this case
including impairments or sight, hearing, memory, language, or any
other physical or psychological disability.
c. All information and records indicating that any prospective
cooperating witness (1) may have suffered from any physical, mental
or emotional disease, disorder, illness, or defect at any time during the
time-span alleged in the indictment filed in this case, or (2) sought or
received treatment for any such mental or emotional disease, disorder,
illness or defect at any time within the past seven (7) years.
d. All information and records indicating that the prospective
government witness (1) may have used cocaine, marijuana, or any
other controlled substance, or used alcohol, to excess, at any time
during the time span alleged in the Indictment filed in this case, or (2)
sought or received treatment for any substance abuse problem
(including alcohol) at any time within the past seven (7) years.
16
e. Any inconsistent statement made by a prospective government
witness or cooperating witness to law enforcement and/or government
attorney.
28. With respect to the individuals described in Paragraph 24, please
provide the following regarding the prior contact of the witness with the criminal
justice system:
a. Any applicable record of the United States Probation department,
including but not limited to, any and all presentence report prepared
relative to said witness, if the witness has been placed on probation or
a Pre-Sentence Investigation “PSI” has been conducted. U.S. v.
Strifler 851 F.2d 1197 (9th Cir. 1988).
b. Any government or State sentencing memorandum or other document,
report or transcript reflecting the position of the government or State
relative to the sentencing of the witness.
c. If said witness has been incarcerated during or subsequent to his
cooperation, provide the place and date of incarceration and any files,
reports or other documents prepared or maintained by the institution
where the witness was incarcerated or by any Federal or State Bureau
of Prisons or Corrections.
17
d. Any action taken by the government or by any State impacting on: i.)
The witness’ place of incarceration; ii.)Any parole determination
made relative to the witness; iii.)Any furlough determination made
relative to the witness; iv.)Any other considerations, accommodations
or privileges given to the witness while incarcerated, including
anything impacting on the type or length of incarceration of the
witness.
29. If any government witness or cooperating witness was arrested or
otherwise in custody, provide the following:
a. At the time of arrest, was bail set and if so, in what amount?
b. Specify each change in the bail status of the witness including any bail
violations, any increase or reduction in bail, any change in the
conditions of release.
c. Specify any act taken by any law enforcement agent, state or federal,
relating to the witnesses detention or release on bail including any
recommendation or agreement as to the amount of bail or conditions
of release.
30. All electronic surveillance of any government witness evidencing
their participation in criminal conduct.
18
31. Whether any witness intended to be called at trial by the government
has been granted or offered any plea bargain or any benefits of any kind (monetary
or otherwise), whether by state or federal authorities and if so, specify:
a. The name and address of the witness.
b. Itemize all benefits offered or conferred upon said witness or any
family member, including dates on which said benefits were offered
or given.
c. Provide a copy of any written plea agreement and if not reduced to
writing, the substance of the plea agreement.
d. Provide any correspondence, notes, memoranda or other
documentation reflecting any discussions or negotiations concerning
plea agreements or other benefits for a government witness, whether
or not any final agreement was reached and provide the substance of
any oral negotiations or discussions concerning the same.
e. Provide the date of the entry of any guilty plea and identify the Court
where the plea was entered.
f. Provide the date of sentencing, the Court which imposed the sentence
and the sentence imposed.
19
32. Whether on behalf of any witness the government intends to call at
trial, the government has interceded or has offered to intercede with respect to any
criminal charge pending against said witness or any family member or with respect
to any criminal charges which was anticipated against any such witness or any
family member, including any representation made by any government agent to
any witness which intimated that said witness or any family member might be
investigated for a crime, charged with the crime or penalized in anyway if he did
not cooperate with the government.
33. Any information or evidence which would tend to show that
information provided to the government by any prospective witness was false or
misleading or which would in any way contradict any information provided by any
such witness.
34. Whether any proceedings have been instituted or are or were
anticipated against any government witness by the Internal Revenue Service, the
United States Bureau of Immigration and Naturalization (now U.S. Immigration
and Customs Enforcement (ICE)) or any other federal or state agency which might
result in the imposition of a fine, penalty or other sanction against any government
witness and if so, describe that proceeding in detail.
20
35. Any agreements or understandings by the government to help one of
its witnesses including without limitation any promise made to help a witness with
respect to employment or legal proceeding.
36. Any promise of anonymity or confidentiality made to any witness.
37. Any promise or other representation made by the government or the
State concerning any benefit to a witness under Section 5K1.1 of the Sentencing
Guidelines, Rule 35 of the Federal Rules of Criminal Procedure or 18 U.S.C. §
3553.
38. Provide any and all evidence or information which would in any way
support a defense of entrapment or prosecutorial overreaching.
39. Provide any and all evidence that in any way indicates that the
Defendant had voluntarily or involuntarily ceased or terminated his involvement
with the activities charged in the Indictment, or is probative of non-participation in
the conduct described in the Indictment as to any Defendant, including the date and
manner of such withdrawal, cessation or termination.
40. Any notes or memoranda of any government attorney containing or
relating to exculpatory information concerning any defendant and any exculpatory
information presented to the grand jury.
21
41. Documents showing the identification and whereabouts of all persons
known to the prosecution, or who may become known by the exercise of
reasonable diligence, who possess information relevant to the Indictment whom
the government does not intend to call as a witness at trial.
42. All records of governmental agencies reflecting any disciplinary
action taken against any governmental official or employee who is expected to
testify.
43. Provide any and all exculpatory evidence contained in personnel files
of local, state or federal law enforcement officers intended to be called by the
government at trial.
44. Provide any and all records of arrests and/or contact with local, state
and Federal law enforcement of government witnesses, the witnesses’ family,
including the witnesses’ children.
45. The defendant requests that the government examine the personnel
files and other files within its custody, care or control, or which could be obtained
by the government through due diligence, for all testifying witnesses, including
testifying officers and agents who may have been controlling or contacting any
confidential informants in this case. The defendant requests that these files be
reviewed by the government attorney for evidence of perjurious conduct or other
22
like dishonesty, or any other material relevant to impeachment, or any information
that is exculpatory. See, U.S. v. Henthorn, 931 F. 2d 29 (9th Cir. 1991).
WHEREFORE, the Defendant moves this Honorable Court for an order
requiring the government to provide him with the requested material as soon as
possible.
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
mailto:adonato@verizon.netmailto:p101699@verizon.net
23
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA :
:
vs. : 3:CR-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
mailto:adonato@verizon.net
24
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA :
:
vs. : 3:CR-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
mailto:p101699@verizon.netRecommended