MOTION TO RELEASE EXCULPATORY EVIDENCE BY CONAHAN

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

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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

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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.

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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

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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) .

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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

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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

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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

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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.

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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

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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

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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.


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.

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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.


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.

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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.

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e. Any inconsistent statement made by a prospective government

witness or cooperating witness to law enforcement and/or government

attorney.


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.

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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.

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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.

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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.

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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.

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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)

[email protected]

/s/ Philip Gelso, Esquire

PHILIP GELSO

Briechle & Gelso, LLC

63 Pierce Street

Kingston, PA 18704

(570) 763-0006

(570) 288-0243 (Fax)

[email protected]

Dated: March 1, 2010 Counsel for Michael T. Conahan

mailto:[email protected]


23




:

vs. : 3:CR-09-272

: (Kosik, J.)




:

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)

[email protected]



24




:

vs. : 3:CR-09-272

: (Kosik, J.)




:

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)

[email protected]

