Opinion
Case No. 15-cr-30001-DRH-SCW
03-07-2016
UNITED STATES OF AMERICA, v. DAVID L. BRADFORD Defendant.
REPORT AND RECOMMENDATION WILLIAMS, Magistrate Judge :
This Report and Recommendation is submitted to United States District Court Judge David R. Herndon pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C). On January 29, 2016, the district judge in this matter issued a Show Cause Order (Doc. 145) asking why Defendant and his former attorney should not be held in contempt of the protective order entered in this case on February 2, 2015. (Doc. 30). The Show Cause Order was prompted by the government filing a notice of violation of the protective order (Doc. 143). The Notice maintained that Defendant's counsel at the time, Dan Schatnikk, and a law clerk working for Mr. Shatnikk, provided detailed summaries of discovery to the Defendant, which included the names of witnesses and three confidential informants. A portion of these summaries were evidently sent to another individual by Mr. Bradford. The matter was referred to the undersigned to determine the facts surrounding the series of events addressed in Doc. 143 and the issues of contempt and sanctions, on February 1, 2016. (Doc. 148). Pursuant to the District Court's order, the parties briefed the issues prior to the hearing before this Court. In its notice and brief in support of its position, the government maintains that the act of providing Mr. Bradford with detailed summaries of discovery in this case - to include the names of confidential informants identified by counsel - violated the first provision in the protective order which required counsel to maintain the discovery in its possession at all times. The undersigned held a hearing on this matter on February 22, 2016.
Kit Morrissey and Suzanne Garrison appeared for the government. John O'Gara appeared as counsel for Dan Schattnik who also appeared. Eugene Howard appeared for Defendant David Bradford who also appeared.
For the following reasons this Court RECOMMENDS that the district judge find that the protective order was not violated. Accordingly, this Court further RECOMMENDS that the district judge NOT initiate criminal contempt proceedings, find any party in civil contempt, or impose sanctions of any kind.
FACTS
On February 2, 2015 the government filed a motion for a protective order setting forth good cause for restricting the dissemination of discovery materials and restricting the filing of information identifying witnesses and confidential informants. (Doc. 28). The government also filed an ex parte affidavit from ATF Agent Adam Ulery in support of the motion. (Doc. 29). In that motion the government indicated that discovery materials to be produced in the case "reveal the names and identities of confidential informants who worked with the ATF in the investigation of this matter." (Doc. 28 at 1). The government further maintained that "[r]edaction of names and other personal identifiers is insufficient to protect the identity of these witnesses and confidential informants because other information in the materials tends to reveal them." (Doc. 28 at 1 - 2). The motion then states that "[p]ublic dissemination of the Rule 16 and Jencks Act materials containing the names and identities of individuals who provided information to the ATF, and confidential informants who worked with the ATF in the investigation of this matter, could jeopardize the safety of those individuals, and thus, the integrity of the case and the ongoing investigation." (Doc. 28 at 2). In the motion, the government sought a protective order that was very specific as to its wording. (Doc. 28 at 2 - 3). Judge Herndon granted the motion in an order that provided the exact relief the government requested, word for word. It provides as follows:
a) That Rule 16 and Jencks Act materials and any copies of the materials, be maintained in the sole custody and care of counsel for the defense, including counsel's office personnel; andHaving reviewed the parties' filings, at the beginning of the hearing on February 22, 2016, the Court made the following findings of fact which were not in dispute and to which all of the parties agreed:
b) That any pleadings or other filings not use the names of potential witnesses or confidential informants.
During the course of Mr. Schattnik's representation of Mr. Bradford, Mr. Shattnik and a law student clerk traveled to meet with Mr. Bradford and allowed him to view the Rule 16 and Jencks Act materials (hereinafter "discovery materials"). The discovery materials were kept in the possession of Mr. Schattnik or the law student and were never left with Mr. Bradford. Additionally, Mr. Schattnik provided Mr. Bradford with a detailed summary of the discovery materials, which included the names of witnesses and identified at least three individuals that were confidential informants. One such summary is in the record at Doc. 143-3. The summary in question is labeled "NOTICE: THIS DOCUMENT IS ATTORNEY WORK PRODUCT IN THE CASE US V BRADFORD." This particular document summarizes 336 pages of discovery materials in 9 pages. The summary identifies confidential informants by name and numbers, and in some places by street address. That summary managed to make its way in some manner to an individual outside of the jail.
In addition to the above facts, the government called Agent Ulery. Agent Ulery testified about a number of facts and issues that the Court views as relevant to the initial determination of good cause for the protective order. These facts relate to Mr. Bradford's dangerousness and propensity for threatening others. But the Court does not consider these facts relevant to its determination that the protective order was not violated. So they will not be recited here. Agent Ulery also testified that the need for a protective order has increased since the names of the witnesses and confidential informants were released. One potential confidential informant, Witness 2, declined to work with the ATF as a result of this information being in the street. Agent Ulery further testified that the confidential informants at issue were readily identifiable from the videotaped statements made by the informants that were provided to the defense with the discovery materials.
The government also called Witness 1. Witness 1 is a childhood friend of Mr. Bradford's. Witness 1 and Mr. Bradford corresponded while Mr. Bradford was in prison. Mr. Bradford said he was going to send Witness 1 some documents because he thought that Witness 3 was "telling on him" but he was not sure. Witness 1 received some paperwork from Mr. Bradford approximately two to three months ago. Witness 1 identified the documents he received from Mr. Bradford as the summary at Doc. 143-3. Witness 1 showed the documents to Witness 2, but did not give him a copy. Witness 1 showed the document to at least one other person (possibly more) that had had a federal case and that person told him it was fake because it wasn't written in a way an official report would be written. Witness 1 gave the paperwork to Witness 3, his cousin. Witness 1 testified that he did not believe the information in the summary he was provided was real. Rather, he believed it was a fake. The Court credits the testimony of Witness 1. Although Witness 1's testimony was not entirely clear at points, there was no evidence submitted that would contradict his testimony and his demeanor was such that the Court cannot conclude that Witness 1 was being deceptive. Additionally, during argument, counsel for Mr. Bradford conceded that Mr. Bradford has sent the summary to Witness 1.
ANALYSIS
The government's position, as expressed clearly at the hearing, is that providing the summary in the record to the defendant was a willful violation of the Court's order directing counsel to maintain all copies of the discovery in its possession. The government contends that these actions were intended to circumvent the Court's order by simply providing the defendant with all of the same information in the discovery in a different format. At the hearing, the government conceded that orally identifying the confidential informants would not violate the protective order, nor would providing a less detailed summary of the discovery to the defendant. However, the government argues that the act of providing the summary to the defendant is the equivalent of giving the defendant the discovery materials because the summary was in writing, too detailed, and identified confidential informants.
The evidence adduced at the hearing reveals that the law student's only actions relevant here were bringing the discovery materials to the jail where Bradford was housed. The government does not contend, and the Court does not find, that these actions violate the protective order. Accordingly, the law student's conduct is not analyzed separately here.
The elements of criminal contempt are: 1) a lawful and reasonably specific order of the court, and 2) a willful violation of that order. U.S. v. Hoover, 240 F.3d 593, 596 (7th Cir. 2001); see also Doe v. Maywood Hous. Auth. 71 F.3d 1294, 1297 (7th Cir. 1995). Similarly, while civil contempt differs in some important respects, it also requires: 1) a court order that sets forth an unambiguous command; 2) a violation of that command; 3) a significant violation, or substantial failure to comply with the order; and 4) a failure to make a reasonable and diligent effort to comply. SEC v. Hyatt, 621 F.3d 687, 692 (7th Cir. 2010). While the procedural due process requirements and burdens of proof are different, both types of contempt first require that there be a "reasonably specific," or "unambiguous" order that has been violated. This requirement has also been described as "an order that sets forth in specific detail an unequivocal command from the court." United States v. Dowell, 257 F.3d 694, 699 (7th Cir. 2001). There appears to be no real distinction in the analysis given to the level of specificity required of a court order whether considering criminal or civil contempt.
Additionally, the Court has inherent authority to sanction lawyers or litigants to punish them for misconduct. See S.E.C. v. First Choice Manage. Servs., 678 F.3d 538, 543 - 545 (7th Cir. 2012). But again, while the level of process and burden of proof required for the imposition of such a sanction may differ from contempt, the reasonable specificity requirement remains where the sanction to be imposed results from the violation of a court order. See generally First Choice, 678 F.3d at 543-45.
In this case the government claims that the command in the protective order that requires counsel to maintain the discovery in his possession has been violated. On its face, the protective order is clear. Discovery material and copies of discovery materials must "be maintained in the sole custody and care of counsel for the defense, including counsel's office personnel." But the government is not claiming that defense counsel did not maintain the discovery materials in his possession or gave them to Mr. Bradford. Instead, the government maintains that there was an additional implied unambiguous command in the protective order that prohibited counsel from providing defendant, in writing, an overly detailed summary of the discovery. Further, the government also maintains that there was an implied unambiguous command that prohibited defense counsel from mentioning the names of the confidential informants in any written correspondence with Defendant.
The government contends that these additional commands can be implied by looking at the "timing and context" in which the order is issued. See Government's Brief, doc. 161 at 9. The government relies on three cases for this assertion. First Choice, 678 F.3d at 543; Hoover, 240 F.3d at 596; Dowell, 257 F.3d at 699. As argued by the government, the phrase "timing and context" appear to refer to the timing and context within the litigation in which the order is entered. And while timing and context may be useful when interpreting an ambiguity in the words of an order, the government would have this Court consider timing and context for the purpose of adding previously unspecified commands to an order.
The cases the government relies upon provide no support for this position. In Hoover, the court didn't rely on context or timing at all. There, after the Defendant was found guilty of filing false income tax returns, the district court ordered defendant not to "cash, negotiate, or transfer any United States savings bonds, period." 240 F.3d at 594 & 596. For emphasis the court stated it was ordering defendant "not to do anything with them." Id. at 596. Within weeks Hoover gave his son about half the bonds in his possession. Id. at 594. After being found in contempt for this act Hoover maintained that giving physical possession of the bonds to his son did not constitute a transfer of title or ownership as he had previously had the bonds issued in his son's name. This argument was a nonstarter. Although the court touched upon the intent of the order when issued, it held that the order was "abundantly clear" in upholding the contempt. Id. at 596. Importantly, the case turned upon the interpretation of a specific command of an order, not some implied term.
Similarly, in Dowell, the Court analyzed whether a notice commanding the appearance of an attorney (Morano) for trial constituted an unequivocal command. The notice stated that "[A]ttorneys Gavras, Morano, and Daly are to appear at 8:00 a.m. on 12/19/00." 257 F.3d at 699. The Court held that this notice was "unequivocal" pointing out that it did not say "Morano may appear" or "Gavras or Marano is to appear." Id. The Court could have rested on that alone. Instead, it further emphasized that the timing and context of the order only reinforced the clarity of the command. Morano's motion to withdraw had been denied the day prior to the notice and Morano acknowledged being warned by co-counsel that the district judge had stated during a conference call that Morano would be cited for contempt if he did not appear for trial. Id. Again, to the extent the government can find support in Dowell, it is simply for the proposition that timing and context may inform the interpretation of an explicit command of an order.
Lastly the government most heavily relies on the First Choice case. While the facts of the case are complicated, understanding the result is not. In First Choice, defendant SunCo entered into an agreed order with a receiver that required SunCo to replace a bond that had been posted by another defendant - Alco - for the operation of an oil and gas lease. 678 F.3d at 541. Replacing the bond would allow the receiver to recoup from Alco the money it had previously posted for the bond. The agreed order specifically provided "SunCo shall obtain a bond . . . that shall replace Alco's bond so that Alco and the Receiver may obtain the release of its bond paid for with defrauded investor funds." Id. SunCo didn't replace the bond. To do so, SunCo would have been required to become the operator of the lease - a step it did not take. The lower court held Sunco in contempt.
In upholding the contempt finding, the Seventh Circuit reasoned that although the order was poorly drafted in that it did not explicitly state that SunCo was to become the operator of the leases, it did explicitly require that SunCo replace the bond. Id. at 542-43. This necessarily implied that SunCo become the operator of the leases, because without doing so, it could not replace the bond. Id. The implied command was only what was necessary to carry out the explicit command. Thus, the facts in First Choice are far afield from the situation presented here.
Here there is an explicit command that defense counsel maintain discovery materials in his possession. He did so. An additional implied command that defense counsel not provide a written summary of the discovery - or written correspondence identifying any confidential informants - to the defendant is not a necessary prerequisite to accomplishing this command.
What the government really asks is that the Court add implied commands to the protective order for the purpose of better accomplishing what it believes was the intent of the protective order. But following this line of reasoning reveals how untenable such an approach really is. One need look no further that the government's original motion requesting the protective order. First, the motion acknowledges that redacting names from the discovery materials will not mask the identities of the confidential informants because the information in the discovery would otherwise tend to reveal them. In fact, the discovery included video of the informants giving their statements. This implies that the Defendant was aware of the informants' identities at the time the protective order was sought. Additionally, the government conceded at the hearing that the order did not, and could not, forbid counsel from discussing the identity of the confidential informants with the Defendant orally. The subsequent order could not, then, be considered an effort to prevent that.
The motion also states that "public dissemination" of the discovery materials containing the identities of witnesses and confidential informants "could jeopardize the safety of those individuals, and thus, the integrity of the case and the ongoing investigation." So, the government's expressed intent related directly to public dissemination of the discovery materials. And the specific remedy it asked for was the discovery materials be maintained in the "sole custody and care of counsel for the defense." One reasonable interpretation of this motion and the requested order is that the government did not want official documents making their way onto the street because of the added weight that the official imprimatur of an investigative report may have on any question of whether someone was, in fact, a confidential informant. This point is borne out by government's Witness 1 who testified that he concluded that counsel's summary was a "fake" and should not be given any weight. This was based on his conclusion - a result of consultation with an ex-federal offender - that the summary did not resemble an official investigative report.
So counsel could, and did, reasonably conclude that the order did not prevent him from conveying a detailed summary of the discovery to the Defendant. The order itself contained no command to the contrary, and the motion seeking the order expressed concern over the public dissemination of the discovery materials themselves.
What's more, the government conceded at the hearing that some summary of the discovery could have been given to the defendant without running afoul of the order, just not an overly detailed summary. But that begs the question: when does a summary cross the line from being sufficiently vague to being overly detailed? After all, the concern is public dissemination. Here counsel provided Defendant with his work product in a clear attempt to aid Defendant in assisting in his own defense. The summary was labeled as attorney work product. The government says that it was too detailed and would have violated the protective order even if it hadn't named confidential informants. For the Court to so conclude it would have to append the implied command to the order that "defense counsel not provide defendant with an overly detailed summary of the discovery materials." Such an order could never be construed as clear. The command is ambiguous on its face and subject to innumerable interpretations, and would remain so whether written or implied.
At the hearing the government adamantly claimed that it could never have predicted that defense counsel would have provided a summary to the defendant such as the one at issue here. The Court accepts this position. But it matters not. What the government could have predicted has no bearing on the clarity of the commands it now asks the Court to graft onto the order proposed by the government and entered by the district judge. The government now knows what it previously did not predict.
CONCLUSION
For the foregoing reasons this Court RECOMMENDS that the district judge find that the protective order was not violated. Accordingly, this Court further RECOMMENDS that the district judge NOT initiate criminal contempt proceedings, find any party in civil contempt, or impose sanctions of any kind. Parties shall have until March 24, 2016 to object to this report and recommendation.
In the government's brief it raises two issues relating to Defendant Bradford: 1) whether a protective order pursuant to 18 U.S.C. §1514 would be appropriate, and 2) whether Bradford would be susceptible to a sentencing enhancement for witness intimidation or obstruction of justice. These matters are outside the purview of the issues referred to this Court and are not addressed here. --------
IT IS SO RECOMMENDED.
Dated: March 7, 2016
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge