UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW …online.wsj.com/public/resources/documents/valle.pdf · GILBERTO VALLE 52 Duane Street - 10. th. Floor New York, New York 10007

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------ X UNITED STATES OF AMERICA

- v. -

GILBERTO VALLE,

Defendant.

: : : : : : : :

No. 12-cr-847 (PGG)

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DEFENDANT GILBERTO VALLE’S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO COMPEL IMMEDIATE DISCLOSURE

DAVID PATTON Federal Defenders of New York, Inc. Attorney for Defendant GILBERTO VALLE 52 Duane Street - 10th Floor New York, New York 10007

JULIA GATTO ROBERT BAUM EDWARD S. ZAS JOHN J. HUGHES, III Of Counsel

Case 1:12-cr-00847-PGG Document 107 Filed 02/24/13 Page 1 of 24

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................................................................................... ii

PRELIMINARY STATEMENT ..................................................................................................1

BACKGROUND ............................................................................................................................4

A. Contemporaneous Evidence of Mr. Valle’s Post-Arrest Statements .................4 B. Recent § 3500 Disclosures Concerning Mr. Valle’s Post-Arrest Statements ....5 C. Defense Attempts to Resolve Concerns that the United States Is Withholding

Brady, Giglio, Rule 16, or Jencks Act Material .................................................7

ARGUMENT ..................................................................................................................................9

I. Rule 16 Requires Disclosure of All Written Records of Mr. Valle’s Post-Arrest Statements. ..............................................................................9

II. The Government’s Disclosure Is Insufficient Under the Jencks Act. ..........................11

III. The Government’s Failure to Disclose Grand Jury Testimony and Exculpatory Evidence Violates the Due Process Clause. ............................................13 A. Grand Jury Testimony on Mr. Valle’s Post-Arrest Statement

Is Highly Material and Potentially Exculpatory. .............................................14 B. Agent Foto’s Cellular Communications During Mr. Valle’s Interview

May Be Material, Impeachment Evidence. ......................................................15

IV. All Grand Jury Minutes Must be Disclosed Because Grounds May Exist to Dismiss the Indictment. ..........................................................................16

V. The Court Should Take Appropriate Prophylactic Measures to Minimize the Prejudice to Mr. Valle. ......................................................................18

CONCLUSION ............................................................................................................................20


TABLE OF AUTHORITIES

Page(s) CASES

Brady v. Maryland, 373 U.S. 83 (1963) ........................................................................................................... passim

Dawkins v. New York, No. 08-CV-2441 NGG, 2011 WL 3625150 (E.D.N.Y. Aug. 16, 2011) ..................................15

Giglio v. United States, 405 U.S. 150 (1972) ......................................................................................................... passim

Strickler v. Greene, 527 U.S. 263 (1999) .................................................................................................................14

United States v. Aaron, 457 F.2d 865 (2d Cir. 1972).....................................................................................................12

United States v. Bari, 750 F.2d 1169 (2d Cir. 1984)...................................................................................................17

United States v. Baugh, No. 3:09-CR-00240-17, 2012 WL 6555003 (M.D. Tenn. Dec. 14, 2012) ..............................16

United States v. Bibbero, 749 F.2d 581 (9th Cir. 1984) ...................................................................................................11

United States v. Blatt, No. 06-CR-0268, 2007 WL 1795685 (E.D. Pa. June 18, 2007) ..............................................10

United States v. Briggs, 831 F. Supp. 2d 623 (W.D.N.Y. 2011) ....................................................................................16

United States v. Burke, 571 F.3d 1048 (10th Cir. 2009) ...............................................................................................18

United States v. Coppa, 267 F.3d 132 (2d Cir. 2001).....................................................................................................14

United States v. Dixon, 7 M.J. 556 (A.C.M.R. 1979), aff’d, 8 M.J. 149 (C.M.A. 1979).........................................11, 12

United States v. Morel, No. 09-CR-493 KAM, 2010 WL 4457773 (E.D.N.Y. Nov. 1, 2010) ...............................11, 12

United States v. Reynolds, No. 10CR32A, 2012 WL 5305183 (W.D.N.Y. Oct. 25, 2012) ...............................................17

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United States v. Stein, 424 F. Supp. 2d 720 (S.D.N.Y. 2006)......................................................................................10

United States v. Taylor, No. 3:04CR130, 2006 WL 4643321 (S.D. Ohio July 31, 2006)..............................................18

United States v. Treacy, 639 F.3d 32 (2d Cir. 2011).......................................................................................................15

United States v. Weston, No. 2:06-CR-303, 2007 WL 1555798 (D. Utah May 22, 2007) ..............................................10

STATUTES

18 U.S.C. § 3500 .................................................................................................................... passim

OTHER AUTHORITIES

Fed. R. Crim. P. 6(e)(3)(E)(i), (ii)..................................................................................................16

Fed. R. Crim. P. 16 ................................................................................................................ passim

Fed. R. Crim. P. 16(a) ....................................................................................................................18

Fed. R. Crim. P. 16(a)(1)(B)(ii) .................................................................................................8, 10

Fed. R. Crim. P. 26.2(c) .................................................................................................................13

Fed. R. Evid. 611(b) .....................................................................................................................6, 7

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------ X UNITED STATES OF AMERICA

- v. -

GILBERTO VALLE,

Defendant.

: : : : : : : :

No. 12-cr-847 (PGG)

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PRELIMINARY STATEMENT

The government’s 18 U.S.C. § 3500 disclosures arrived Wednesday night, and

contained very little of substance to this case. Indeed, the disclosures were noteworthy

principally for how skimpy they are. In a case that could result in imprisonment for the

remainder of the defendant’s natural life, the United States was unable to fill even a single binder

with evidence from the witnesses it intends to present starting tomorrow. There was one

noteworthy disclosure concerning an FBI agent, however, and based on that disclosure and the

record in this case, the defense is now concerned that there may be an alarming reason for the

skimpiness of the government’s production: The United States may be withholding potentially

exculpatory evidence.

The potentially withheld evidence relates to Mr. Valle’s post-arrest statement.

After his arrest, Mr. Valle was interviewed by Anthony Foto, an agent with the Federal Bureau

of Investigation. Although only Mr. Foto was present in the interview room, it appears that at

least one other FBI agent, Corey Walsh, was listening to or viewing the interview using a hidden

microphone, camera, or similar device. Mr. Foto claims he did not take any notes, but

Mr. Walsh did. Acccording to Mr. Walsh’s notes, at one point, Mr. Valle told Mr. Foto that,


while it is difficult to find the line between fantasy and reality in online chats, Mr. Valle would

be willing to help the FBI to figure out if anyone in the chat rooms could be at risk of acting out

cannibalistic fantasies in “reality.” Mr. Valle also explained that he sometimes blended real life

into fantasy (using real people as inspiration for fantasy chats)—but never went beyond fantasy.

The United States may try to distort Mr. Valle’s statements at trial. Mr. Foto—

who apparently took no notes during Mr. Valle’s interview and never wrote a report about it—

told counsel for the United States in a “prep” session on February 14, 2013, that Mr. Valle said

that the line between fantasy and reality began to blur for Mr. Valle, and did so in connection

with a specific alleged victim.

Mr. Foto’s testimony appears to be at odds with the contemporaneous records of

the interview. Mr. Walsh’s handwritten notes clearly indicate that Mr. Valle’s statements about

the line were made in connection with an offer to help the FBI, and that Mr. Valle’s thoughts

about cannibalism never went beyond fantasy. Mr. Walsh and agent Rocky Warden coauthored

a typewritten “302” summary that also makes these points clear. But the United States seems to

regard the actual contemporaneous records of what Mr. Valle said as a mere inconvenience—the

impact of which can be minimized through a combination of suppression of relevant, probative

and constitutionally mandated evidence, and interference with Mr. Valle’s right to confront the

witnesses against him.

The government may be maneuvering to obfuscate this evidence at trial. On the

same day that Mr. Foto described his contemplated testimony to the government, counsel for the

United States requested a ruling from the Court limiting the defense’s ability to cross-examine

law enforcement witnesses. The government claimed it was “streamlining [its] case” and wanted

to avoid needless duplication. Accordingly, the government asked this Court to rule that, “if

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there was an agent who saw a portion of an interview that we don’t ask them about on direct

examination,” the defense could not cross-examine the witness about the interview. The Court

granted this seemingly innocuous request.

It now appears that this may have been a ruse to make it more difficult for the

defense to elicit exculpatory testimony from Mr. Walsh (or potentially other agents) concerning

Mr. Valle’s post-arrest statement. After reviewing various disclosures the government has made,

it now appears reasonably clear that the only “interview” that any FBI agent could possibly

address (consistent with hearsay rules) is Mr. Foto’s interview of Mr. Valle. That the

government was trying to conceal something with respect to this interview became clear when

the defense received the government’s § 3500 disclosures. It is customary in this District for the

U.S. Attorney’s Office to produce substantially all grand jury testimony of any witness who will

be called to testify. Here, there was no grand jury testimony from any law enforcement witness.

When the defense confronted the government about this, the government refused

to disclose whether any of the witnesses whom the government intended to call at trial had

testified against Mr. Valle in the grand jury. The government further explained that it had

limited the § 3500 disclosures based on the “subject matter” of testimony the government intends

to elicit from its witness on direct examination. It appears that the government may have

concluded that, by declining to call some agents or cleverly limiting their direct examinations,

the government could withhold potentially exculpatory testimony or Giglio material.

The defense believes the government’s interpretation of § 3500 is incorrect, but

even setting that aside, the government’s position ignores a number of other disclosure

obligations. Rule 16 requires disclosure of any “written record[s]” of Mr. Valle’s post-arrest

statement—including testimony about that statement in the grand jury. And Brady and Giglio

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require disclosure of any material evidence favorable to the accused, whether exculpatory or

impeaching. The government now appears to recognize this problem, and tried to avoid it

through an artfully worded statement about what disclosures the government has made. When

pressed by the defense, the United States certified that it “ha[d] produced all 3500 material”—a

representation that presumably rests on the government’s aggressive interpretation of the

“subject matter” limitation—but did not certify compliance with Brady, Giglio, or Rule 16.

This Court should not countenance such gamemanship by the United States in a

prosecution that could send a man to jail for the rest of his life. The government’s evasive

responses and efforts to withhold evidence that may be helpful to the defense interfere with the

truth-seeking function of this tribunal—and fly in the face of decades of settled jurisprudence

defining the government’s constitutional duty to produce exculpatory evidence to a criminal

defendant. The Court should strictly enforce the government’s duties in this case.

BACKGROUND

A. Contemporaneous Evidence of Mr. Valle’s Post-Arrest Statements

During Mr. Valle’s post-arrest interview on October 24, 2012, only Mr. Foto was

present in the interview room. Mr. Foto allegedly did not take any notes, but he was frequently

checking his cell phone— intermittently apologizing to Mr. Valle for the interruption. Based on

recent disclosures, it appears likely that Mr. Walsh (and potentially other agents) listened to the

interview through a hidden microphone or similar device, and these agents may have

communicated with Mr. Foto during the interview via cellular telephone.

Unlike Mr. Foto, Mr. Walsh apparently took notes of the interview. His

typewritten notes (the “302”) contain the following summary:

VALLE stated he may have told BLUES that [Ms. S] lives in New York, while she in fact resides in Maryland. VALLE advised the line between fantasy and

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reality blurred when he met [Ms. S] for lunch in Maryland with MANGAN and his daughter. After the lunch, VALLE advised he talked about it with BLUES online.

. . . .

VALLE advised DFN is a different world to him, where other people have similar interests. VALLE believes DFN is a small group of people and they enjoy the site and that it arouses them and makes them tick. VALLE advised people come and go on and off these types of websites, including DFN, and that it is hard to draw the line between fantasy and reality but he would be willing to help the FBI figure out what is fantasy versus reality on the chat rooms.

(Interview of Gilberto Valle (drafted Nov. 7, 2012), GB0030006-10, at 08.) In addition,

Mr. Walsh’s handwritten notes from the interview contain the following:

-likes being a cop -wants to help people. -taking bad people off the street -husbands who [illegible] to their wives -cares about the people who need help -some girl called IAB to say how good he was -hard to draw a line between fantasy + reality. cooperating to help us figure fantasy from reality -willing to help 100% -I’m on your side. -I’m on board. -2 separate lives – me and the computer [illegible] cross the line [Break] -levels of fantasy –you get deeper in -creating of boundaries –change w moody blues -first time seeing [Ms. S] in 2 yrs -had lunch w/wife/daughter/[Ms. S] -says to people that he say one of [illegible] but he really didn’t -never go past fantasy -blended real life into fantasy [illegible] -consent to search phone nothing to hide

(Handwritten Notes (Oct. 24, 2012), GV003584-3595, at 3593 (emphasis added).)

B. Recent § 3500 Disclosures Concerning Mr. Valle’s Post-Arrest Statements

The government produced 18 U.S.C. § 3500 disclosures to the defense on

Wednesday, February 20, 2013. These disclosures do not include grand jury testimony for any

law enforcement witness. There are no grand jury materials indicating what (if anything) was

presented to the grand jury regarding Mr. Valle’s post-arrest statement.

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Mr. Walsh’s typewritten “302” of Mr. Valle’s post-arrest statement, and his

handwritten notes, were not included in the § 3500 disclosures sent to the defense and to this

Court. The only disclosure for Mr. Walsh is an affidavit in support of a warrant to search

Mr. Valle’s e-mail account (with Hotmail, an e-mail service operated by Microsoft).

The principal disclosures for Mr. Foto are various statements he signed in support

of search warrants and the complaint Mr. Foto signed under oath. There are no

contemporaneous notes that Mr. Foto took during the October 24, 2012, interview of Mr. Valle,

but the disclosures do include handwritten notes titled, “Feb. 14, 2013 Anthony Foto Prep

*R. Jackson *H. Waxman.” On page three, these notes contain the following description of

Mr. Foto’s contemplated testimony of his interview with Mr. Valle:

-AF explained investigation + said do you know why you’re here -Valle said he thought he was under arrest for conspiracy to commit murder -Valle described his progression into cannibalism etc. & said line bw fantasy + reality began to blur in conversations w/ moody blues + ali khan, when he went to meet [Ms. S] -Valle claimed didn’t go back on dfn after wife left except once - was a lie

See Handwritten Notes (Feb. 14, 2013), 3509-F (emphasis added).

On the same day as Mr. Foto’s “prep” session with counsel for the government,

there was a lengthy conference in the afternoon in this case. The Court read a careful and

detailed opinion into the record, deciding a number of the motions that have been traded back-

and-forth in this case. After that opinion, counsel for the United States raised an issue with the

Court, presented as “a relatively simple inquiry,” concerning the application of Rule 611(b):

THE COURT: All right. Anything else anyone wants to raise?

MR. JACKSON: One final issue, your Honor. I think this is a relatively simple inquiry but it’s an evidentiary question just as to your Honor’s view on the applicability of a particular rule of evidence. Under Rule 611, as the Court is aware, the scope of cross-examination under 611(b) is limited to the subject matter of direct examination. There is a minority view among some of the judges in the district courts —

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THE COURT: I’m sorry?

MR. JACKSON: Sorry. There’s a minority view, your Honor, among some of the judges in the district courts that this rule has limited utility and that they won’t enforce it. We wanted to inquire with your Honor as to what your Honor’s position was on the applicability of Rule 611(b) at the forthcoming trial and just to explain just very briefly why.

We have a number of witnesses that we anticipate, they’re different agents who participated in different aspects of the investigation. We are streamlining our case and eliciting the portions of what the agents saw from agents where we think that they can provide the most useful information without duplicating things over and over again. What we would not like is for us to be surprised on cross-examination with defense counsel cross of particular witnesses outside of the scope of what we asked them about.

Obviously, we’re not saying these aren’t appropriate witnesses for that testimony. We’re just saying we think, for example, if there was an agent who saw a portion of an interview that we don’t ask them about on direct examination, it would be appropriate under 611(b) for that witness to be recalled in the defense case as opposed to cross-examined about it in our case. So we’re wondering if your Honor could give us any guidance on that issue.

(2/14/2013 Tr. 56:3-57:12 (emphasis added) (Ex. A).) The Court granted the government’s

request. (Id. at 60:11-19.)

Remarkably, the government failed to advise the Court that this Rule 611(b)

ruling was more than a “simple inquiry,” and that its real significance was to give the

government an excuse to sharply curtail its § 3500 disclosure obligations.

C. Defense Attempts to Resolve Concerns that the United States Is Withholding Brady, Giglio, Rule 16, or Jencks Act Material

On the same day the government transmitted its § 3500 disclosures, the defense

noticed that grand jury materials were missing for the law enforcement witnesses and e-mailed

the government to ask when those materials would be forthcoming. (E-mail from the Defense

(Feb. 20, 2013) (Ex. B).) The government did not reply to this e-mail.

The defense called counsel for the United States on Thursday, February 21, and

requested various grand jury materials pursuant to 18 U.S.C. § 3500, Federal Rule of Criminal

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Procedure 16 (particularly Rule 16(a)(1)(A) and (a)(1)(B)), Brady v. Maryland, 373 U.S. 83

(1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. This request was also

memoralized in a letter. (Letter from the Defense (Feb. 21, 2013) (Ex. C).)

On the call, counsel for the United States declined to state which law enforcement

officials had appeared to testify before the grand jury, or whether any of those officials described

any statements purportedly made by Mr. Valle. The United States advised that its position was

that it only had to disclose grand jury testimony relating to the subjects for which a particular

witness is being offered on direct examination. Counsel for the United States had difficulty

responding when asked how this position was consistent with the requirement in Rule 16 that the

government turn over any “written record” of Mr. Valle’s post-arrest statement. See Fed. R.

Crim. P. 16(a)(1)(B)(ii).

In response to the defense’s letter, the United States sent an e-mail message late

Friday night. The e-mail certifies that the government has produced “all 3500 material of which

we are aware,” and “every discoverable statement of the defendant under Rule 16.” (E-mail

from the United States (Feb. 22, 2013) (Ex. D).) The e-mail treats “written record[s]” of

Mr. Valle’s post-arrest interview separately, and only certifies that the defense has received “all

known notes and reports of the interview”—not any “written record” of it, as the rule requires.

The government stated it would produce discoverable information from Mr. Foto’s cell phone

“when we become aware of” any such information—but the government made no undertaking to

investigate whether any relevant information is contained on the cell phone. The e-mail did not

address the defense’s request that the government certify compliance with Brady and Giglio.

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ARGUMENT

The government’s assertion that it only has to turn over statements on subjects it

has selected from each witness for its direct examination case ignores well-settled Due Process

Clause jurisprudence and Rule 16—and it rests on an incorrect reading of the Jencks Act. Any

written record of Mr. Valle’s post-arrest statement, as described by any witness, must be

produced under Rule 16. Moreover, because Mr. Foto plans to testify about Mr. Valle’s post-

arrest statement, other witnesses’ more favorable recollection of the statements are Brady

material subject to disclosure.

In addition, other evidence put before the grand jury is relevant impeachment

evidence under Giglio. For example, the defense has made no secret of the fact that it believes

the government made false statements to the Court regarding cell site data (including, in

Mr. Foto’s case, under oath). The defense is entitled to any statements made to the grand jury on

this subject, because they could be used to undermine the truthfulness or the competence of the

agents working on this case. Even testimony presenting Mr. Valle’s chats or computer history to

the grand jury could potentially be impeachment material. And in light of the government’s

conduct, there may be grounds to dismiss the indictment. Accordingly, the Court should order

the government to produce all grand jury material to the defense.

I. RULE 16 REQUIRES DISCLOSURE OF ALL WRITTEN RECORDS OF MR. VALLE’S POST-ARREST STATEMENTS.

Any grand jury testimony concerning Mr. Valle’s post-arrest statements—by any

witness, whether or not that witness will testify—must be disclosed pursuant to the federal rules,

which provide as follows: “Upon a defendant’s request, the government must disclose to the

defendant . . . the portion of any written record containing the substance of any relevant oral

statement made before or after arrest if the defendant made the statement in response to

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interrogation by a person the defendant knew was a government agent . . . .” Fed. R. Crim.

P. 16(a)(1)(B)(ii).

This rule is “is ‘not limited to a typed, formalized statement’ or ‘a verbatim or

near-verbatim transcription.’” United States v. Stein, 424 F. Supp. 2d 720, 728 (S.D.N.Y. 2006)

(quoting United States v. Vallee, 380 F. Supp. 2d 11, 12 (D. Mass. 2005)). Rather, the rule

requires disclosure of “all documents in [the government]’s possession which reflect statements

made by [the defendant] during interviews . . . regardless of who recorded the notes or whether

that individual will testify.” United States v. Weston, No. 2:06-CR-303, 2007 WL 1555798, at

*2 (D. Utah May 22, 2007) (emphasis added). “As the Advisory Committee Notes make clear,

the record requested ‘must only be some written reference which would provide some means for

the prosecution and the defense to identify the statement.’” Stein, 424 F. Supp. 2d at 728. 1

Any discussion of Mr. Valle’s statement in the grand jury plainly would satisfy

this standard. The grand jury testimony is reduced to a written transcript, which contains

sufficient information to allow any statements made by Mr. Valle to be identified. And a written

record of a defendant’s statement is not exempt from this rule simply because it involves grand

jury materials. Cf. United States v. Blatt, No. 06-CR-0268, 2007 WL 1795685, at *2 (E.D. Pa.

June 18, 2007) (noting government’s concession that grand jury transcripts or interview

summaries of over forty witnesses had to be produced). Accordingly, all grand jury testimony

1 For the same reason, Mr. Walsh’s handwritten notes of the interview are discoverable under Rule 16. The government has provided only a copy of the notes that is illegible at the margin (where several important words appear), and has told the defense only that it “plan[s] to produce [a legible copy] next week.” (E-mail from the United States (Feb. 22, 2013) (Ex. D).) This is unacceptable, and the Court should order immediate production. Opening statements and presentation of witnesses are scheduled to begin tomorrow. Mr. Walsh’s notes are crucial to cross-examination and opening statements.

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referring to Mr. Valle’s statements, whether or not by a witness the government intends to call,

should be produced to the defense immediately.

II. THE GOVERNMENT’S DISCLOSURE IS INSUFFICIENT UNDER THE JENCKS ACT.

The government has stated that it is only required to disclose statements

concerning the same event to which a law enforcement witness will testify during his direct

examination. The government’s application of this theory is so aggressive that apparently not a

single law enforcement witnesses gave any grand jury testimony “which relates to the subject

matter as to which the witness [will] testif[y].” 18 U.S.C. § 3500(b).

The government’s novel theory is incorrect, as the existing case law clearly

establishes. “The statement need relate only generally to the events and activities testified to by

the witness to come within [the] sweep” of 18 U.S.C. § 3500. United States v. Bibbero, 749 F.2d

581, 585 (9th Cir. 1984) (emphasis added). “The Second Circuit interpretation of what ‘relates

to’ a witness’s testimony is broad. It includes not only statements that relate to the witness’s

factual narrative, ‘but also to impeachment of [the witness’s] direct testimony by showing bias

and interest.’” United States v. Morel, No. 09-CR-493 KAM, 2010 WL 4457773, at *3

(E.D.N.Y. Nov. 1, 2010) (quoting United States v. James, 609 F. 2d 36, 48-49 (2d Cir. 1979);

United States v. Bin Laden, 397 F. Supp. 2d 465, 492 (S.D.N.Y. 2005)).

At least one court has interpreted the Jencks Act to require disclosure of all of a

law enforcement agent’s prior statements that relate to the same investigation of the same

defendant—even if the law enforcement agent is testifying only to one aspect of the

investigation. See, e.g., United States v. Dixon, 7 M.J. 556, 559 (A.C.M.R. 1979), aff’d, 8 M.J.

149 (C.M.A. 1979). As Dixon explained in finding that the government’s production was

inadequate, “To qualify as a ‘statement . . . which relates to the subject matter as to which the

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witness has testified,’ it is only necessary that the agent’s notes relate generally to the events as

to which he has testified (E.g., as in this case, the time of receipt and sources of information

leading to the apprehension of the appellant and the time and facts of his apprehension,

interrogation, and release).” Id. (emphasis added).

Moreover, the government cannot try to limit the scope of its § 3500 disclosures

by artfully limiting particular law enforcement testimony to certain subjects, and thereby avoid

disclosure of what would otherwise be § 3500 material adverse to the government’s position.

The relevance of § 3500 disclosures are measured by reference to the subject matter of all the

witnesses that the government intends to introduce in its case-in-chief. See, e.g., Morel, 2010

WL 4457773. In Morel, the court ordered the government to produce documents because the

“documents ‘relate to’ the anticipated testimony of the government witnesses in this case.” Id. at

*4 (emphasis added). The Morel court did not separately analyze each disclosure to determine

whether a particular statement was within the subject matter of the witness who intended to

present evidence on that statement. See also United States v. Aaron, 457 F.2d 865, 869 (2d Cir.

1972) (it is inappropriate to “attempt to weigh with mathematical precision whether the

withholding from the defense of a particular pre-trial statement made by a government witness

violated the defendant’s right to the full information the Jencks Act grants him”).

Even if the government’s chary reading of § 3500 were accurate, the government

still would need to turn over at least some of the grand jury testimony. Although it is impossible

to tell from the incomplete § 3500 material, we believe that Mr. Walsh may testify concerning

the search of Mr. Valle’s computer or e-mail account, and pornographic images, fantasy chats,

correspondence with alleged “co-conspirators,” and other similar evidence. Mr. Valle addressed

a number of these topics in his post-arrest statement, and Mr. Walsh’s statements to the grand

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jury on any of these topics would relate to Mr. Valle’s testimony even under a narrow standard.

For example, Mr. Valle told the FBI “that he was surfing the Internet . . . in the fall of 2010,” that

he “started a YAHOO chat account” in the spring of 2012, and that “he took the photographs of

women off of FACEBOOK and that he . . . post[ed] them on the Internet.” (Interview of

Gilberto Valle (drafted Nov. 7, 2012), GB0030006-10, at 08.) All of these statements relate

quite directly to Mr. Valle’s e-mail accounts, and images and records that may be found on his

computer. Accordingly, the government does not have a legitimate basis to withhold

Mr. Walsh’s grand jury testimony even if Mr. Walsh’s contemplated testimony on direct

examination is limited to records found on Mr. Valle’s e-mail accounts or computer.

To the extent that any dispute on this point remains, the Court must examine the

law enforcement witnesses’ statements in camera to determine whether additional material

should be disclosed. See Fed. R. Crim. P. 26.2(c) (“If the party who called the witness claims

that the statement contains information that . . . does not relate to the subject matter of the

witness’s testimony, the court must inspect the statement in camera . . . .”).

III. THE GOVERNMENT’S FAILURE TO DISCLOSE GRAND JURY TESTIMONY AND EXCULPATORY EVIDENCE VIOLATES THE DUE PROCESS CLAUSE.

It is now well-settled that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material either

to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v.

Maryland, 373 U.S. 83, 87 (1963). This rule has been extended to evidence relating to a

witness’s credibility, even if the evidence is not directly exculpatory. See Giglio, 405 U.S. at

155. The Supreme Court has established a three-part test for applying this principle: “The

evidence at issue must be favorable to the accused, either because it is exculpatory, or because it

is impeaching; that evidence must have been suppressed by the State, either willfully or

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inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82

(1999) (emphasis added).

The fact that evidence may be “inculpatory” is insufficient to remove it from the

sweep of Brady and Giglio. The Supreme Court’s “cases make clear that Brady’s disclosure

requirements extend to materials that, whatever their other characteristics, may be used to

impeach a witness.” Id. at 282 n.21. Because Brady and Giglio duties arise under the Due

Process Clause to the Constitution, these disclosure obligations trump statutory time frames, such

as those set forth in 18 U.S.C. § 3500. If the evidence is material to the proceeding, it must be

disclosed in time to allow its effective use at trial, even if § 3500 authorizes later disclosure. See

United States v. Coppa, 267 F.3d 132, 146 (2d Cir. 2001).

A. Grand Jury Testimony on Mr. Valle’s Post-Arrest Statement Is Highly Material and Potentially Exculpatory.

Evidence from the grand jury proceeding concerning Mr. Valle’s statements

plainly could be exculpatory and highly material. As noted, notes of a “prep” session indicate

that Mr. Foto will testify that the “line [between] fantasy + reality began to blur” for Mr. Valle.

The most effective rebuttal for this testimony would be a sworn statement of a law enforcement

witness to the grand jury. If Mr. Walsh or any other witness gave grand jury testimony

consistent with Mr. Walsh’s contemporaneous notes of the post-arrest interview, that evidence

would strongly refute Mr. Foto’s anticipated testimony at trial.

The mere fact that the defense has handwritten notes from Mr. Walsh does not

save the grand jury testimony from the scope of Brady. The jury could discount impeachment

evidence in the form of handwritten notes and unsworn “302” statements and instead believe

Mr. Foto’s sworn testimony in front of the jury. But sworn testimony that FBI agents gave to a

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grand jury would be much harder to discount. Favorable grand jury testimony therefore could be

material to the outcome of this proceeding.

B. Agent Foto’s Cellular Communications During Mr. Valle’s Interview May Be Material, Impeachment Evidence.

As noted, Mr. Foto was using his cellular telephone during the interview. The

cellular phone, and any text messages, e-mails, and other material that he sent or received during

the interview should be produced as potentially material impeachement evidence (as well as the

same records from any officer with whom Mr. Foto was communicating). The evidence suggests

that Mr. Foto and Mr. Walsh interpreted or remembered Mr. Valle’s comments very differently.

The credibilty of these two competing recollections could be important to the jury, particularly if

the government tries to rely on Mr. Foto’s recollection of Mr. Valle’s statement as important

evidence against Mr. Valle.

The fact that Mr. Foto was making such extensive use of his cellular telephone

would allow the jury to infer that Mr. Foto was not paying attention to Mr. Valle. Even if the

jury otherwise believed Mr. Foto and found him to be a credible witness, the jury might decide to

reject his recollection of Mr. Valle’s statements if the evidence shows that Mr. Foto was

distracted by use of his cellular telephone—particularly where, as here, the difference between

Mr. Foto’s version and Mr. Walsh’s version of the statement, while significant, is one of nuance.

United States v. Treacy, 639 F.3d 32, 44 (2d Cir. 2011) (“The Confrontation Clause guarantees a

criminal defendant the right ‘to delve into the witness’ story to test the witness’ perceptions and

memory’ and ‘to impeach, i.e., discredit, the witness.’” (quoting Davis v. Alaska, 415 U.S. 308,

316 (1974))); Dawkins v. New York, No. 08-CV-2441 NGG, 2011 WL 3625150, at *4 (E.D.N.Y.

Aug. 16, 2011) (applying Treacy’s discussion of the scope of impeachment to a Brady claim).

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IV. ALL GRAND JURY MINUTES MUST BE DISCLOSED BECAUSE GROUNDS MAY EXIST TO DISMISS THE INDICTMENT.

Although grand jury proceedings are generally secret, this secrecy is subject to

several explicit exceptions. Among others, “[t]he court may authorize disclosure . . . of a grand-

jury matter . . . at the request of a defendant who shows that a ground may exist to dismiss the

indictment because of a matter that occurred before the grand jury.” Fed. R. Crim.

P. 6(e)(3)(E)(ii). The Court also may authorize disclosure “preliminarily to or in connection with

a judicial proceeding.” Fed. R. Crim. P. 6(e)(3)(E)(i). “For the Court to authorize disclosure of

Grand Jury documents [under these provisions], Defendant must make ‘a showing of

“compelling necessity” demonstrated by a “particularized need”’ for the documents.” United

States v. Baugh, No. 3:09-CR-00240-17, 2012 WL 6555003, at *2 (M.D. Tenn. Dec. 14, 2012)

(finding a compelling necessity where the defendant needed grand jury information to determine

whether Rule 6 had been violated).

Here, the defendant has two sources of particularized need:

First, the grand jury minutes are needed for “impeachment of a witness at trial, to

refresh recollection, and to test witnesses’ credibility.” United States v. Briggs, 831 F. Supp. 2d

623, 631 (W.D.N.Y. 2011) (citing United States v. Procter & Gamble Co., 356 U.S. 677, 683

(1958)) (recognizing impeachment, refreshment of recollection, and the testing of witness

credibility as “particularized need”). Specifically, the defense believes that aspects of the grand

jury testimony may undermine the contemplated testimony of Mr. Foto. In addition, cell site

evidence could be used to impeach a number of government witnesses and the quality of the

government’s investigation. As it is, moreover, it is unclear even what the government presented

to the grand jury concerning the nature of Mr. Valle’s fantasy chats. This information is

necessary impeachment, and the court is well within its discretion to order it: “[T]he trial judge

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may in the exercise of his discretion order the minutes of a grand jury witness produced for use

on his cross-examination at trial.” United States v. Reynolds, No. 10CR32A, 2012 WL 5305183,

at *10 (W.D.N.Y. Oct. 25, 2012) (citing Pittsburgh Plate Glass Co. v. United States, 360 U.S.

395, 400 (1959)).

Second, grounds may exist to dismiss the indictment against Mr. Valle. Dismissal

of an indictment against a defendant is warranted if “the prosecutor’s conduct [before the grand

jury] amounts to a knowing or reckless misleading of the grand jury as to an essential fact.”

United States v. Bari, 750 F.2d 1169, 1176 (2d Cir. 1984). As noted in previous motions,

Mr. Foto may have misrepresented cell site evidence under oath. (See Compl. ¶ 16.) It appears

likely that this cell site evidence was put before the grand jury in some form. In light of

Mr. Foto’s proffer of incredible testimony, contradicted by contemporaneous documentation

made by his own colleagues, there is some question about whether Mr. Foto and others in the

prosecution team might have known that the cell site evidence was false or misleading, or at least

been reckless as to the possibility that it was. The government’s apparent attempts to limit the

defense’s access to the grand jury transcript also raise questions about whether the prosecution

was reckless in what it put before the grand jury. Among other issues, the claim that Mr. Valle’s

cell phone put him on the same block as Ms. F’s apartment ignores the obvious fact that cell

phone towers have a range of much more than one city block. And the government’s false

assertion that Mr. Valle was near Ms. F’s apartment “the very next day” after chatting about her

would have been avoided if the government had simply checked a calendar and noticed that 2012

was a leap year.

In these circumstances, the grand jury minutes may show that the prosecution

was at least reckless in the presentation of false evidence to the grand jury. Accordingly,

-17-


Mr. Valle has established sufficient grounds to warrant disclosure of all grand jury minutes so

the defense can decide whether to move to dismiss the indictment.

V. THE COURT SHOULD TAKE APPROPRIATE PROPHYLACTIC MEASURES TO MINIMIZE THE PREJUDICE TO MR. VALLE.

The government’s statements concerning its compliance with discovery

obligations have been vague and evasive. In these circumstances, it is appropriate to order all

counsel for the United States in this matter to certify, in a signed declaration, that the government

has produced all Brady, Giglio, Rule 16(a), and 18 U.S.C. § 3500 material, and is unaware of any

respect in which the government’s disclosures are or could be inadequate. See United States v.

Taylor, No. 3:04CR130, 2006 WL 4643321 (S.D. Ohio July 31, 2006) (requiring the government

to certify compliance with Rule 16(a)). The government should also be ordered to set forth any

arguable or debatable positions it adopted in completing its discovery obligations.

The defense also asks the Court to preclude, for now, testimony from (1) any

witness whose grand jury testimony has not already been produced in full to the defense, (2) any

witness for whom Brady or Giglio disclosures may be incomplete, and (3) any FBI agents.

Although the defense is hopeful that it can move forward with the current trial as scheduled, the

defense does need an opportunity to review the suppressed material to determine whether it is

appropriate to seek further remedies. “Where the district court concludes that the government

was dilatory in its compliance with Brady, to the prejudice of the defendant, the district court has

discretion to determine an appropriate remedy . . . .” United States v. Burke, 571 F.3d 1048,

1054 (10th Cir. 2009). A variety of remedies beyond disclosure might be appropriate here,

including “exclusion of the witness [affected by the inadequate disclosure], limitations on the

scope of permitted testimony, instructions to the jury, or even mistrial. The choice of remedy is

in the sound discretion of the district court.” Id.

-18-


Even in cases where the suppression was innocent and unintentional, courts have

imposed meaningful sanctions for delayed disclosure of Brady or Giglio material. If the

withheld evidence is indeed material, the defense may need to move for exclusion of certain

witnesses, exclusion of testimony on certain subjects, instructions advising the jury that the

United States has violated its obligations in this case, or cautionary instructions that the jury

should be skeptical of the testimony of specific witnesses. Witnesses who may be subject to

such remedies should not testify until the defense has an opportunity to determine whether it is

appropriate to seek any such remedies. The government can still present testimony on count

two, and presumably at least some of the witnesses regarding count one. Any interruption to the

government’s preferred manner of presentation of its case is a problem of its creation.

-19-


CONCLUSION

For these reasons, the Court should grant the defendant’s motion to compel

immediate disclosure.

Dated: New York, New York February 24, 2013

Respectfully submitted,

DAVID PATTON Federal Defenders of New York

By: /s/ Julia Gatto Julia Gatto Attorney for Defendant GILBERTO VALLE 52 Duane Street, 10th Floor New York, New York 10007

JULIA GATTO ROBERT BAUM EDWARD S. ZAS JOHN J. HUGHES, III Of Counsel

-20-


EXHIBIT A

Case 1:12-cr-00847-PGG Document 107-1 Filed 02/24/13 Page 1 of 8

1 D2ELVALC Conference 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 UNITED STATES OF AMERICA, 3 4 v. 12 CR 847 (PGG) 4 5 GILBERTO VALLE, 5 6 Defendant. 6 7 ------------------------------x 7 8 New York, N.Y. 8 February 14, 2013 9 12:37 a.m. 9 10 10 Before: 11 11 HON. PAUL G. GARDEPHE, 12 12 District Judge 13 13 14 APPEARANCES 14 15 PREET BHARARA 15 United States Attorney for the 16 Southern District of New York 16 HADASSA WAXMAN 17 RANDALL W. JACKSON 17 Assistant United States Attorney 18 18 FEDERAL DEFENDERS OF NEW YORK 19 Attorneys for Defendant 19 BY: JULIA GATTO 20 ROBERT M. BAUM 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300


56 D2ELVALC Conference 1 opportunity to consult with Agent Shute a bit more and discuss 2 with him the Court's ruling today. 3 THE COURT: All right. Anything else anyone wants to 4 raise? 5 MR. JACKSON: One final issue, your Honor. I think 6 this is a relatively simple inquiry but it's an evidentiary 7 question just as to your Honor's view on the applicability of a 8 particular rule of evidence. Under Rule 611, as the Court is 9 aware, the scope of cross-examination under 611(b) is limited 10 to the subject matter of direct examination. There is a 11 minority view among some of the judges in the district 12 courts -- 13 THE COURT: I'm sorry? 14 MR. JACKSON: Sorry. There's a minority view, your 15 Honor, among some of the judges in the district courts that 16 this rule has limited utility and that they won't enforce it. 17 We wanted to inquire with your Honor as to what your Honor's 18 position was on the applicability of Rule 611(b) at the 19 forthcoming trial and just to explain just very briefly why. 20 We have a number of witnesses that we anticipate, 21 they're different agents who participated in different aspects 22 of the investigation. We are streamlining our case and 23 eliciting the portions of what the agents saw from agents where 24 we think that they can provide the most useful information 25 without duplicating things over and over again. What we would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300


57 D2ELVALC Conference 1 not like is for us to be surprised on cross-examination with 2 defense counsel cross of particular witnesses outside of the 3 scope of what we asked them about. 4 Obviously, we're not saying these aren't appropriate 5 witnesses for that testimony. We're just saying we think, for 6 example, if there was an agent who saw a portion of an 7 interview that we don't ask them about on direct examination, 8 it would be appropriate under 611(b) for that witness to be 9 recalled in the defense case as opposed to cross-examined about 10 it in our case. 11 So we're wondering if your Honor could give us any 12 guidance on that issue. 13 MS. GATTO: Your Honor, just to add to this, I think 14 that it is an issue. Many of the non-law enforcement witnesses 15 but the witnesses we anticipate the government calling are 16 witnesses that we intend we would call ourselves on our direct 17 case. So this is on our list of things to talk to the 18 government about because we also want the trial to be 19 streamlined and it certainly makes sense. I'm glad Mr. Jackson 20 brought it up to discuss it because I think the most 21 streamlined version of this trial would be to permit us to 22 elicit testimony from their witnesses that technically is 23 beyond the scope of their direct that we would then elicit, 24 especially since some of these witnesses and I'm thinking of 25 the witness and others I think don't all live close by and so SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300


58 D2ELVALC Conference 1 we'd have to call them back. 2 MR. JACKSON: And, your Honor, to clarify, we've 3 considered that and I think we are willing to waive our 611(b) 4 objections with regard to the civilian witnesses who were 5 traveling. We think the subject matter of their testimony is 6 relatively limited, and we also don't want them to have to 7 travel multiple times. 8 But with regard to witnesses who would be available 9 for the defense case, which includes all of the agent 10 witnesses, we would ask for the Court's guidance as to whether 11 or not 611(b) would be applicable. 12 THE COURT: Let me give you my view. I might say at 13 the outset this comes up on the civil side a lot more often and 14 because, of course, plaintiffs often call defense witnesses on 15 their case and the plaintiff, you know, brings up what's in the 16 interest of the plaintiff to be brought out and then defense 17 counsel is in a situation where they have the opportunity to 18 conduct cross-examination by them and they generally want to 19 get it over with. I mean they want to ask all their questions 20 while their person is on the stand and not bring them back say 21 a week later or two weeks later or whatever. And I have some 22 sympathy with that and let me tell you why. 23 When a witness first testifies, that's when the juror 24 interest in the witness is sort of at its premium. Once 25 they've testified and they're brought back to testify again, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300


59 D2ELVALC Conference 1 the level of interest on the juror's part is much diminished 2 because they sort of think they already know this person's 3 story already. And so I think the level of attention, the 4 level of interest they bring to hearing from the same witness 5 again say a week later, it's just not comparable to the 6 interest they bring the first time around. 7 So for that reason, I have allowed in civil cases 8 defense counsel who want to go beyond the scope of direct and 9 present everything that they intend to elicit from their 10 witness, I've allowed them to do that on cross-examination even 11 though it's not entirely consistent with 611(b). So that's my 12 practice in civil cases. It's just very practical and, as I 13 said, it's responsive to my belief that juror interest in a 14 witness is at its peak when they haven't heard from the person 15 before. Once they have heard substantial testimony from the 16 witness and they're brought back later, I just don't think it's 17 the same. 18 So looking at it in the context of this case, are you 19 asking me to apply 611(b) with rigor as to the agents? 20 MR. JACKSON: Yes, your Honor. 21 THE COURT: And, Ms. Gatto, you're arguing it's more 22 practical to just sort of get it all done at the same time? 23 MS. GATTO: Yes, your Honor, and for the reasons you 24 just articulated. We think it makes the most sense to deal 25 with the witness while the witness is on the stand. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300


60 D2ELVALC Conference 1 THE COURT: Let me make sure what we agree on and what 2 we don't agree on. 3 You agree, Mr. Jackson, for civilian witnesses coming 4 from some distance that we should put that person on once and 5 get that person done at the same time. 6 MR. JACKSON: Yes, your Honor, we believe that for all 7 of the civilian witnesses. 8 THE COURT: All the civilian witnesses. 9 You agree with that too, Ms. Gatto, obviously. 10 MS. GATTO: Yes, we agree to that. 11 THE COURT: So with respect to civilian witnesses, it 12 will be my assumption that once they're put on the stand, all 13 questions will be addressed at that one time by both sides. 14 With respect to government witnesses, 15 government-employed witnesses, agents, I will apply 611 such 16 that the government will ask whatever it wants of the witnesses 17 on its case in chief, and then if the defense counsel wants to 18 elicit unrelated matters from the witness, defense counsel will 19 have to call that person on their case. 20 MR. JACKSON: Thank you, your Honor. 21 MS. GATTO: Your Honor, is that ruling applying to NYP 22 witnesses? So I think the line kind of blurs between law 23 enforcement witnesses and civilian witnesses when talking about 24 some of the NYPD witnesses. I don't know if the government 25 anticipates calling some of them, but they're more factual SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300


61 D2ELVALC Conference 1 witnesses who are -- so, anyway, I put that out there. 2 THE COURT: Have you thought about that, Mr. Jackson? 3 MR. JACKSON: We have, your Honor, and we think that 4 with regard to the limited number of witnesses we plan to call, 5 it's a short number the NYPD witnesses, we would ask the Court 6 to treat the same as the FBI witnesses. 7 THE COURT: All right. Then all government witnesses 8 will be treated the same as far as that goes. 9 So, Ms. Gatto, if you want to elicit unrelated matters 10 from government-employed people, whether they're agents or New 11 York City police, you will do that on your case. 12 MS. GATTO: Okay, your Honor. And we understand your 13 ruling regarding your application of 611(b). I do anticipate 14 there might be objections that they claim go beyond scope of 15 direct that we think are related to direct, so I anticipate 16 that being a problem. I put it out there for another reason to 17 consider our proposal as opposed to the government's. I do 18 think it's going to be awkward and a little difficult to get 19 through the case, but I just put that on the record for your 20 consideration. 21 THE COURT: All right. We'll see how it goes. 22 Mr. Jackson has that in mind and hopefully that won't become an 23 obstacle at trial. 24 MR. JACKSON: Thank you very much, your Honor. I 25 don't believe we have any additional issues. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300


EXHIBIT B


Julia Gatto/NYSG/02/FDO 02/20/2013 08:46 PM

To hadassa.waxman•usdoj.gov , Jackson, Randall (USANYS)" <Randall.Jackson•usdojgov>

cc Robert Baum/NYSG/02/FDO•FDO bcc

Subject 3500

in reviewing the 3500, it appears the case agents grand jury testimony is missing. will you be sending that over separately tonight? can you give us a sense of what else you will be adding to the 3500 materials, thanks.

Julia L. Gatto Assistant Federal Defender Federal Defenders of New York 52 Duane Street 10th Floor New York, N.Y. 10007 Office: (212) 417-8750 Fax: (212) 571-0392


EXHIBIT C



Hadassa Waxman, Esq./Randall Jackson, Esq. February 21, 2013 Page 2

whether or not you intend to produce the testimony. If you continue to refuse to disclose the testimony, please tell us in writing immediately so we can address this significant discovery dispute with the Court promptly before trial begins.

Please produce another copy of Agent Walsh’s handwritten notes of Mr. Valle’s post-arrest interview. The text on the margins of the copy previously produced is unreadable.

Please confirm in writing whether or not any other handwritten notes related to Mr. Valle’s post-arrest interview were created. If other notes were created, please produce. If other notes were created but subsequently destroyed, lost, or otherwise are no longer available, please identify the circumstances surrounding the loss of the notes, the parties involved in their loss, and the date on which the evidence was lost.

We have reason to believe that, while conducting Mr. Valle’s post-arrest interview, Agent Foto sent and received text or similar messages from his cellular telephone to and from other law enforcement agents in which matters related to the interrogation were communicated. Please produce all messages exchanged between law enforcement during or related to Mr. Valle’s post-arrest interview, including but not limited to text or similar messages exchanged between Agent Foto and other law enforcement. If such communications were generated but subsequently destroyed, lost, or otherwise are no longer available, please identify the circumstances surrounding their loss, the parties involved in their loss, and the date on which the evidence was lost.

Please produce all audio and/or video recordings that captured Mr. Valle’s post-arrest interview. If any recordings were created and subsequently destroyed, lost, or otherwise are no longer available, please identify the circumstances surrounding the loss of the recordings, the parties involved in their loss, and the date on which the evidence was lost.

Please identify in writing the names of all law enforcement agents who were present, saw, or heard any portion of Mr. Valle’s post-arrest interview or who have information relating to its substance or surrounding circumstances.

Please confirm in writing whether you take the position that your office has complied with all of its duties and obligations pursuant to 18 U.S.C. • 3500, Brady v, Maryland, 373 U.S. 83(1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny.


Hadassa Waxman, Esq./Randall Jackson, Esq. February 21, 2013 Page 3

Please respond to each above request, in writing, today so that we may address any outstanding issues with the Court before opening statements Monday, February 25, 2013 at 12:30.

(ry ty Q yours,

(%I!~aY. Gatto ert Baum

Assistant Federal Defenders 212.417.8750/8760


EXHIBIT D


Dear Julia and Bob, We have reviewed your letter sent yesterday regarding grand jury material. First, weare generally required under Rule 6(e) to maintain grand jury secrecy. We are permittedto disclose matters before the grand jury only to the extent that one of our other legalor ethical requirements so dictates. Second, we disagree with your characterizations ofour positions regarding this material. Again, we are certifying that it is our policy toproduce all grand jury testimony of any witness that constitutes 3500 material. We haveproduced all 3500 material of which we are aware for all of our witnesses, including anyapplicable grand jury testimony. We also certify that you have received everydiscoverable statement of the defendant under Rule 16, including any discoverablestatement constituting grand jury material. Third, we have produced to you all knownnotes and reports of the interview. We understand that you have requested another copyof Agent Walsh's notes, because of some blurring at the margins, and we plan to producethat to you next week. Fourth, if there are discoverable text or similar messages fromAgent Foto's cellular telephone, we will produce them to you when we become aware ofthem. Fifth, we are aware of no audio or video recordings of your client's post-arrestinterview. Sixth, as we have previously disclosed, FBI Agents Anthony Foto and CoreyWalsh were present for the entirety of the interview of Mr. Valle. We will attempt todetermine if there are other agents who heard portions of Mr. Valle's interview, and wewill provide additional appropriate information as we receive it.

Thank you.

Randall JacksonHadassa WaxmanAssistant U.S. Attorneys212-637-1029/2277

RE: US v. ValleJackson, Randall (USANYS) Friday, February 22, 2013 11:16PM

To: Julia Gatto, Waxman, Hadassa (USANYS) Show Details

Cc: Robert Baum, John J Hughes

New Reply Reply To All Forward

1 of 1 2/23/2013 7:14 PM


Documents

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW …online.wsj.com/public/resources/documents/valle.pdf · GILBERTO VALLE 52 Duane Street - 10. th. Floor New York, New York 10007