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By Peter F. Vaira, for the January 14, 2020 edition of The Legal Intelligencer newspaper On Dec. 17, 2019, a Foreign Intelligence Surveillance Court (FISA) judge issued what The New York Times described as an “extraordinary public order” criticizing the FBI for misusing the process to obtain warrants for electronic surveillance on an American citizen (refer to In re Accuracy Concerns Regarding FBI Matters Submitted to the FISC, Docket No. Misc. 19-02). The FISA court was created by the Foreign Intelligence Surveillance Act, hence the term FISA court or FISA judge. Today’s article is a primer on the required procedure for obtaining warrants from the FISA court to install wiretaps and electronic hearing devices in the investigation of certain persons, and a guide to understanding the current allegations that the FBI has misused that procedure to gain permission to use secret electronic surveillance as described in the foregoing order. I will begin with a short background. When the FBI seeks a warrant to install a wiretap on a private phone, or install a secret listening device in a private home or office, in order to obtain evidence of a crime, the investigative agency must file an application for the warrant with a federal court judge. The initial process for the FISA court is the same as required for obtaining electronic surveillance warrants in federal district courts for criminal investigations. The investigative case agent must file an application for a warrant with a federal judge of that particular court. FISA court judges are federal court judges from across the country sitting by designation. The investigative agent is generally overseen by the relevant U.S. attorney or Department of Justice attorney. In the FISA court, the affiant must allege that the targeted person is a foreign national or an American citizen operating on behalf of a foreign power. In both the federal district court and FISA court, this is a secret procedure and the judge must rely on the credibility of the information in the affidavit. Hearsay is often included, including information about past events and information supplied by unnamed confidential informants, whose reliability is sworn to by the affiant. As this is an ex parte process, the court must rely upon the professionalism and integrity of the affiant. U.S. Magistrate Judge Timothy R. Rice of the Eastern District of Pennsylvania, who has issued numerous search warrants in his career, said, “The candor of the affiant is absolutely critical to this process. Information the affiant omits from the warrant can adversely affect the reliability of the information he submits. This is not an adversary proceeding, and there is no separate investigation of the affiant’s information before the warrant is issued. Failure to maintain this high standard will destroy the system.” The results of a FISA warrant are treated differently. The FISA court is a highly secretive court with judges from the various federal courts whose primary responsibility is to decide whether the U.S. government has enough evidence against foreign powers or individuals believed to be foreign agents to allow for their electronic surveillance by the intelligence community. It is the only court permitted to issue such warrants. The FISA court is not a criminal court and evidence obtained by its warrants is not tested in an open court proceeding. The results of the FISA warrants are used by intelligence and security services to discover secret foreign agents or efforts of foreign powers to penetrate the security of the United States. The procedure for obtaining a FISA warrant has the same requirements as required for a warrant to obtain criminal evidence. The affiant has the same legal and ethical responsibility of candor to the court as one who is applying for a criminal warrant. The key difference is that the FISA warrant does not result in an adversarial hearing. The current controversy is with FISA warrants that were obtained to surveil the actions and conversations of an American citizen, who the affiant alleged was operating on behalf of a foreign power. The problem is not that the FBI was mistaken in starting the investigation, but what the FBI did or did not do in pursuing the investigation. A separate investigation by the inspector general of the Department of Justice found that the FBI agents applying for the warrants continually supplied misleading information to the FISA judge, knowing it was misleading on a number of occasions and took steps to mischaracterize it. Special Counsel Robert Mueller, in his investigation, subsequently found that the American citizen who was the subject of electronic surveillance was not acting as a foreign agent. The inspector general of the Department of Justice found that early in the investigation the FBI had substantial information in its files that indicated the FBI’s original premise was incorrect, and that the agency continued to pursue electronic surveillance notwithstanding this conflicting information. The actions of the FBI violate unwritten rule No. 1 for federal prosecutors and federal agents: do not omit or mischaracterize critical information supplied to a federal judge in applying for federal search warrants. An example of the reaction to such conduct is the strongly worded court order, cited above, issued Dec. 17, 2019, by U.S. District Senior Judge Rosemary M. Collyer of the District of Columbia, the FISA judge who signed the warrants. She detailed various acts by FBI agents, and one Department of Justice attorney, that misled her when she signed the warrants. Collyer said, “the frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable.” She ordered the FBI and Department of Justice to make swift changes in the application process. A FISA court judge, as a federal court judge, has the power to hold those agents in contempt and fine them for unprofessional conduct. She very well may do so based upon the incidents described in her order. Unfortunately, this is not the first such problem the FISA court has had with the FBI. The following is reported in an article in the 41 Suffolk Law School Law Review 445, 2007-2008, by Stephen Gard, “In 2002 the FISA court reported that in 2000 the federal government admitted to ‘misstatements and omissions of material acts’ in ‘75 FISA applications related to major terrorist attacks directed against the United States.’ As a result, the court refused to accept inaccurate affidavits from FBI agents and even prohibited one FBI agent from appearing before the court as a FISA affiant,” citing In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611, 620 (FISA Ct. 2002,) abrogated by In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002). The inspector general’s report and Collyer’s order has produced calls for more strict review of FISA court applications and FISA court procedure, and even calls for removing the FISA court from federal procedure. This controversy is only further proof that the FBI and Department of Justice need a long overdue critical review of their basic operational procedure and structure. Peter Vaira is a member of Greenblatt Pierce Funt and Flores. He is a former U.S. attorney and the author of a book on Eastern District practice. He acts as special hearing master for Pennsylvania courts and clients. He can be reached at p.vaira@gpfflaw.com.

By Peter F. Vaira, for the November 19, 2019 edition of The Legal Intelligencer newspaper The purpose of today’s column is to examine what exceptions there are to the federal grand jury secrecy rules, and how grand jury transcripts may be obtained by practitioners for use in litigation in civil or criminal cases. Recently the chief judge of the U.S. District Court for the District of Columbia authorized the disclosure to the Judiciary Committee of the House of Representatives, certain grand testimony from the grand jury investigation conducted by special counsel Robert Mueller. As discussed below, the subject matter of the release of grand jury transcripts goes well beyond the use in proceedings for the impeachment of the president. Federal Criminal Rules protect the secrecy of grand jury testimony and documents utilized in grand jury investigations. As a general rule, once a person has testified before a federal grand jury, that testimony is regarded as secret, and the identity of the witness and his testimony is protected from general discovery. Rule 6 (e) provides exceptions to this rule, as some grand jury transcripts may be used in a later civil or criminal trial. Federal Criminal Rule 6 (e) (3) (E) provides: “The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs— of a grand jury matter: preliminary to or in connection with a court proceeding.” That short sentence is subject to the interpretations of many complicated court decisions, which will be discussed below. The discussion in the next six paragraphs is generally taken from my work, “Corporate Responses to Federal Grand Jury Investigations,” Lexis-Nexis, Business Monograph Series. A judicial proceeding in the meaning of Rule 6 (e) has been defined as any proceeding determinable by a court that has its object, the compliance of any person, subject to judicial control, with standards set in the public interest. See Doe v. Rosenberry, 255 F.2d 118, 120 (2d Cir. 1958); In re Grand Jury, 932 F.2d 481 (6th Cir. 1991). Translated that means the issue must be one that is justifiable by a court of proper jurisdiction. The prospect of litigation must be more than a remote contingency, as in United States v. Baggot, 463 U.S. 476 (1983). The use of the material in the ordinary or investigative functions of a government agency where the agency does not require litigation to achieve its goal is not preliminary to a judicial proceeding. If the agency’s proceedings are purely administrative or investigative, and the possibility of judicial review is remote, the nexus with a judicial proceeding may be lacking. The petitioning party must demonstrate there is a  particularized and compelling need for the disclosure, as held in United States v. Proctor & Gamble, 356 U.S. 677 (1958). Numerous factors have been considered by the courts in determining particularized need, with inconsistent results. The U.S. Supreme Court has said that a particularized need means that the seeking party must show the material they seek is needed to avoid a possible injustice in another proceeding, and also must show the need for the disclosure is greater than the need for continued secrecy, as in Illinois v. Abbotts and Associates, 460 U.S. 557 (1983). Particularized need was shown where the material was necessary to impeach a witness or refresh his recollection at trial, Proctor & Gamble, supra; Puriccelli v. Borough of Morrisville, 136 F.R.D. 393 (E.D. Pa. 1991), or at a deposition, In re Grand Jury Testimony, 832 F.2d 60 (5th Cir. 1887). However, several courts have held the determination whether grand jury transcripts were necessary to refresh a witness’ recollection or impeach his testimony could not be made until the witness had testified, see Illinois v. F.E. Moran, 740 F.2d 533 (7th Cir. 1984). As a general rule, particularized need will be recognized where the use of the material is necessary to prevent misleading the trier of fact or otherwise to prevent injustice, as in Douglas Oil v. Petrol Stops Northwest, 441 U.S. 221, 222 (1979). Only as much of the material as necessary to satisfy the particular need will be disclosed, as in Missouri v. W.E.R., 55 F.3d 350, 354 (8th Cir. 1995). The petitioning party must also show that the particularized need outweighs the traditional need for secrecy, as in United States v. McDowell, 888 F.2d 285 (3rd Cir. 1989); and In re Grand Jury Matter (Catania), 682 F.2d 61, 64 (3rd Cir. 1982). Among the reasons given by the courts for protecting the grand jury secrecy is that secrecy encourages free disclosure by witnesses and protects the reputation of the accused if he is exonerated. Particularized need is not satisfied where the request is made merely for general discovery in a civil proceeding, as in Wilson v. City of New York, (E.D.N.Y. Dec 21, 2007); Cullen v. Margiotta, 811 F. 2d 698, 715 (2nd Cir. 1987), or to merely shortcut the process of obtaining evidence otherwise available, as in United States v. Rutherford, 509 F.3d 791 (6th Cir. 2007); Federal Deposit Insurance v. Whinney, 921 F.2d 83,86 (6th Cir. 1990). The courts are reluctant to come to the aid of a claimant who through his own lack of due diligence has lost the other means that were available to him to obtain the evidence, as in United States v. Lopaz, 779 F. Supp. 13, 16 S.D.N.Y. 1991. The courts weigh a party’s needs in proportion to the degree of access he has to other sources of information. As the need for secrecy decreases, the burden on the seeking party decreases. If the grand jury has returned an indictment, the reasons for secrecy are diminished. If the grand jury does not return an indictment there is a strong argument that the need for secrecy remains intact, and there is a continuing need to protect the target of the investigation. See United States v. Rose, 215 F.2d. 617 (3rd. Cir. 1954) cited with approval, Proctor & Gamble, supra 681. Disclosure of grand jury transcripts was once frequently permitted in suits for treble damages brought against persons who were found guilty of criminal antitrust violations. According to James A. Backstrom, former head of the U.S. Department of Justice antitrust Dallas field office, that practice has almost disappeared. Backstrom said the Antitrust Division has a hard and fast policy of resisting disclosure of grand jury material, and those motions that were once granted for plaintiffs in civil antitrust cases are now unheard of. Backstrom said the Antitrust Division will also oppose discovery of documents defendants produced pursuant to a grand jury subpoena. Recently the Judiciary Committee of the House of Representatives requested certain grand jury transcripts from the grand jury conducted by Mueller into activities of certain persons regarding the 2016 presidential election. The Judiciary Committee intended to utilize the material in preparation for articles of impeachment of President Donald Trump. The Department of Justice objected. In a 71-page opinion, U.S. District Chief Judge Beryl A. Howell of the District of Columbia ordered the Department of Justice to turn over the documents, memorandum opinion of Oct. 25, application of the Committee of the Judiciary for an order authorizing the release of certain grand jury documents. Howell applied the tests discussed above, and found that a trial before the Senate, when it is acting as the court of impeachment, is a judicial body. Thus the hearing before the House Judiciary Committee is a proceeding preliminary to a judicial proceeding. The opinion dealt at length with historical discussion by the drafters of the Constitution describing the intended purpose of the impeachment process. It is an intriguing historical analysis. The court found that the importance of the disclosure outweighed the continued need for secrecy. I agree with the rule of strict compliance of the rule for grand jury secrecy. As a former federal prosecutor, I am of the opinion the grand jury should only be used to determine probable cause to issue criminal indictments. The nature of grand jury testimony is completely one-sided, based only upon questioning by the prosecutor. Grand jury transcripts should not be used for other hearings, nor for grand jury reports when no indictment is returned. Peter F. Vaira is a member of Greenblatt Pierce Funt and Flores. He is a former U.S. attorney and the author of a book on Eastern District practice. He acts as a special hearing master for Pennsylvania courts and clients. He can be reached at p.vaira@gpfflaw.com.

By Peter F. Vaira, for the September 25, 2019 edition of The Legal Intelligencer newspaper This is the first of a series on federal criminal discovery. This is a primer, not an exhaustive work, meant to give new practitioners to federal criminal practice an outline on the procedure. Criminal discovery still lags far behind the discovery available to both parties in a civil case. Many distinguished attorneys including Judge Billings Learned Hand, have been reluctant to provide a criminal defendant with much discovery. They believe that once the accused and his lawyer become aware of the prosecutor’s evidence, they will conjure a defense of perjured testimony and manufactured evidence. It is ironic that there is much more perjured testimony in everyday civil depositions than in criminal cases. Today’s column will discuss Rule 16, and Rule 26.2, of the Federal Rules of Criminal Procedure, and the required production of material by the prosecutor required by Brady v. Maryland, 373 U.S. 83 (1963).

Rule 16 Federal Rules of Criminal Procedure

 I will discuss Section 16 (a) (1) (E). It is important for counsel to be aware that Rule 16 requires that the defendant specifically request items subject to the rule. The government is under no obligation to produce items covered by Rule 16 without such a request. Once requested by the defense, the government must respond, and no further court order is necessary. The court will rule on contested requests and responses.

(E) Documents and Objects

This is the most important rule for federal criminal discovery and careful consideration should be given to making the requests. Upon the defendant’s request, the government must permit the defendant to inspect or copy books, papers, documents, data, photographs, tangible objects, buildings or places, if the items are material to preparing the defense, the government intends to use the item in its case in chief, or the item was obtained from or belongs to the defendant. This provision applies only to tangible items; they must exist, and the government cannot be directed to create them. Material to the defense means significant for the defense to have or know about in preparing to defend against the government’s case in chief. Materiality is defined as relating to the guilt or innocence of the defendant, and credibility of government witnesses. It is not intended to be limited to documents or items the government may use at trial but should also include items that may be helpful or detrimental to the government’s case. “The language and the spirit of the rule are designed to provide a defendant, in the interest of fairness, the widest possible opportunity to inspect and receive such materials in the possession of the government as may aid him in presenting his side of the case,” see United States v. Poindexter, 727 F. Supp. 1470, (D.D.C. 1989). The rule is not limited to admissible documents. A document is material as long as it will play a material role in uncovering admissible evidence, aiding witness preparation, impeachment of witnesses or rebuttal,as in United States v. Lloyd, 992 F.2d 348. D.C. Circuit (1993). See Cary, Singer, Latcovich, “Federal Criminal Discovery,” American Bar Association, 2011. The U.S. District Court for the Eastern District of Pennsylvania Local Criminal Rule 16.1 is particularly helpful. The rule requires counsel for the government and defense counsel to confer regarding discovery within seven days of the arraignment. At that conference, the government is obliged to either provide the discovery requested pursuant to Rule 16 or agree to produce it as soon as possible. If a discovery demand is refused, the government’s attorney must state in writing why disclosure is not proper. Parties are required to attempt to resolve the issues before submitting the matter to the court. The U.S. District Courts for the Middle and Western Districts of Pennsylvania do not have such a local rule.

Disparity Between Federal and State Practice

Practitioners should note that the extent of the pretrial discovery in the federal system is much more limited than in Pennsylvania state criminal practice. In state practice, the defendants, in the discretion of the court, may obtain the names and addresses of any eyewitnesses to the crime. Federal defendants are not entitled to any witness list at all, although any witness’ prior statements are available pursuant to Federal Criminal Rule 26.2 at the time the witness testifies, which is discussed below. See, Vaira, E.D. Pa. “Federal Practice Rules” (Gann), (2019); Comment on Local Rule 16.1.

Witness Statements Rule 26.2

Federal Rule of Criminal Procedure 26.2 pertains to producing prior statements of a witness who testifies at a prior trial or other criminal proceeding, including the grand jury. The rule provides that after a witness testifies in a criminal case, on motion of the party who did not call the witness, the court will order the party who called the witness to produce for examination any statement of the witness in possession of the attorney that relates to the subject matter of the witness’ testimony. The court may recess the proceedings to permit opposing counsel to examine the prior statement. Statement is defined as any statement the witness makes or signs or otherwise adopts, or any substantially verbatim statement of the witness’ oral testimony, including the witness’ prior grand jury testimony. The most common prior statements are FBI Form 302 witness interview reports. These are rarely adopted by the witness, (most likely never seen by the witness) and are not verbatim. Despite this apparent failure to qualify as a prior statement to be produced, federal practice in all federal courts is that the Form 302s are turned over to the defense counsel. The major problem with this rule is the time for turnover. Technically, the prosecutor does not have to turn over the statement until the witness has completed his direct examination. The court has the authority to grant a recess while the attorney examines it; however, that is not a good practice. The attorney needs time to run down all the facts disclosed and all leads therefrom, to conduct a good cross examination. In many federal districts, prosecutors distribute such statements several weeks ahead of trial, but that practice varies with each U.S. Attorney’s Office, and often varies with individual assistant U.S. attorneys in the same office. Although the court cannot formerly order such statements turned over in advance of trial, many district court judges make it known, unofficially, that the statements should be turned over well in advance of trial. Early production is good procedure. It permits the defense attorneys to be prepared for a trial on the facts. Early turnover of government witness statements generally produces early guilty pleas when the defendant is finally faced with the evidence, and the court usually does not have to grant a lengthy recess before cross examination. As in most criminal cases, defense counsel should seek advice from practitioners who have appeared before the trial judge. Each has his own procedure, and a knowledge of the judge’s position will be a great help in dealing with the prosecutor.

‘Brady’ Material

The U.S. Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963), set out a fundamental principle that in the criminal justice system in the United States the government must disclose information to the accused that is favorable either to guilt or punishment. Today’s column deals with Brady material which can influence sentencing. This application of the Brady principle is greatly overlooked by prosecutors, defense counsel, and the courts. Ninety percent of the federal criminal cases filed result in guilty pleas. Of those that go to trial, 95% result in guilty findings. Thus, in the vast majority of the federal criminal cases, the sentencing process is crucial. The Brady test in the guilt or innocence phase is whether the failure to disclose the information “undermines confidence in the outcome of the trial,” see Kyles v. Whitley, 514 U.S. 419 (1995). In the sentencing process, I propose the issue should further include whether the withheld information could have affected the punishment awarded. There is a division among the federal circuits whether the prosecutor should advise defense counsel of Brady material before the defendant enters a guilty plea. Regardless of the rule in the applicable circuit, I propose that immediately following a guilty plea, or soon after a finding of guilty at trial, the defense counsel should file a Brady motion regarding the issues at sentencing. A good practice would be for the trial court to order such a filing; however, the ethical responsibility is on the defense counsel. The federal sentencing guidelines require an examination of the defendant’s conduct in various aspects. These include: the defendant’s role in the offense; was the defendant a leader of two or more accomplices, or was the defendant acting alone; was the crime a violation of his professional responsibility; how much was the actual loss to the victims, as opposed to the intended loss. Each of these findings can substantially affect the sentence. It is important to note that the burden of proof for the government on each of these is mere preponderance of the evidence. A document or a statement of an accomplice known to the prosecutor of the investigators could easily change the weight of the evidence in favor of the defendant on one or more component. I am aware that prosecutors usually state that they are aware of their continuing Brady responsibilities including evidence pertaining to sentencing. I suggest a formal filing by defense counsel on the specific elements required by the sentencing guidelines that will direct the prosecutor to reexamine the proof and force him to notify the investigative agents, who are usually more aware of various aspects of the evidence. I suggest that the Brady request filed by defense counsel regarding sentencing also be sent directly to the probation officer who will be very interested in the prosecutor’s response. The obligation on the prosecutor, in the sentencing phase is more than the dictates of Brady. Rule 3.8. Pennsylvania Rules of Professional Conduct provides that “ … in connection with sentencing (the prosecutor) is to disclose to the defendant and the tribunal all mitigating information.” Rule 3.8 is applicable to federal prosecutors. This is much broader than the Brady test discussed above. Defense counsel should cite Rule 3.8 in the sentencing Brady request. Peter F. Vaira is a member of Greenblatt Pierce Funt and Flores. He is a former U.S. attorney and the author of a book on Eastern District practice. He acts as a special hearing master for Pennsylvania courts and clients. He can be reached at p.vaira@gpfflaw.com.