1/28/2010 70 MOTION to Provide Access to Cooperating Government Witnesses by Benjamin Stanley. (King Grant, Ethenia) (Entered: 01/28/2010)
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MOTION FOR THE GOVERNMENT TO PROVIDE ACCESS TO COOPERATING GOVERNMENT WITNESSES
COMES NOW, BENJAMIN STANLEY defendant herein, who, makes, files and serves the above-titled motion.
FACTUAL BACKGROUND AND NATURE OF THE CHARGES
Benjamin Stanley is charged in an eight count indictment that was returned on November 9, 2009. Mr. Stanley is charged with conspiracy to commit securities fraud, mail fraud, wire fraud, and failure to certify financial reports pursuant to 18 U.S.C. §§ 1348, 1349, 1343 and 1350. Mr. Stanley is alleged to have knowingly participated in a scheme to defraud investors of the publicly traded entity, Conversion Solutions Holding Corporation “CSHC” of which he was the Chief Operating Officer. Specifically, Mr. Stanley is charged with conspiring to issue false press releases and financial statements about CSHC for the purpose of inflating the stock price of CSHC and transferring his shares to his family members who sold the stock at inflated prices. The discovery in this case is voluminous and consists of thousands of pages of documents; Yet, in spite of the seriousness of the charges, there are only a few pages at most referring to Mr. Stanley.
Discovery provided in this case indicates that the government intends to rely upon unindicted coconspirator cooperating individuals as key government witnesses against Mr. Stanley. This motion does not speak to the situation where indicted co-conspirators named in the indictment later enter into a plea and cooperation agreement. If those defendants are named in the style of the case and have counsel, defense counsel will be able locate them.
Rather, this motion speaks to the situation, as in this case, where seemingly some of the evidence of the conspiracy will be testimonial by unindicted co-conspirators. Defense counsel cannot ascertain their whereabouts because they do not even know who they are, much less where they are. The Government knows who these individuals are and how they can be located.
If, as is expected, most of the evidence intended to be used against Mr. Stanley is cooperating testimony or co-conspirator hearsay, then he must have access to them. Without access to the Government’s witnesses, and unless additional discovery exist and is provided to defense counsel other than the few pages pertaining to Mr. Stanley that have been received, he will be utterly powerless to mount a defense. He will be totally blindsided at trial.
In order to properly prepare for trial, and in order to render Mr. Stanley effective assistance of counsel, the defense must at least have access to these witnesses so they can be interviewed and/or subpoenaed. Otherwise, the Sixth Amendment rights to compulsory process and to effective assistance of counsel are impotent.
It is further believed by the defense, that some, if not all of the cooperating individuals and co-conspirator witnesses, have entered into, or will enter into, some form of a cooperating agreement with the government, including motions for a downward departure based on substantial assistance before sentencing or a further reduction of sentence after sentencing. These individuals and their counsel may be of the belief that if they agree to be interviewed by the defense, the government will hold it against them when assessing their level of cooperation for favorable sentencing or post-sentencing recommendations.
At a minimum, the government should be required to:
(1) Identify all cooperating government witnesses and how they can be contacted by defense counsel, including revealing the location of the facilities where the witnesses are being detained (whether detained locally or incarcerated in federal custody), so that defense counsel may interview them;
(2) Be instructed to notify each of the cooperating government witnesses and their respective attorneys, that if they agree to be interviewed by the defense, their doing so will not jeopardize their plea agreements with the government or be held against them when assessing their level of cooperation for favorable sentencing or post-sentencing recommendations.
LEGAL AUTHORITY
In United States v. Carrigan, 804 F.2d 599, 603 (10th Cir. 1986), the appellate court upheld the trial court’s order permitted the defense to take the deposition of government witnesses, based upon a finding that the government had, at least, strongly implied that these witnesses should not be interviewed by the defense, or otherwise chilled their willingness to do so. The court stated:
"As a general rule, a witness belongs neither to the government nor to the defense. Both sides have the right to interview witnesses before trial. Callahan v. United States, 371 F.2d 658 (9th Cir. 1967); United States v. Long, 449 F.2d 288 (8th Cir. 1971), cert. denied, 405 U.S. 974, 92 S. Ct. 1191, 31 L. Ed. 2d 247 (1972).Exceptions to this rule are justifiable only under the 'clearest and most compelling circumstances.' Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966)."
United States v. Cook, 608 F.2d 1175 (9th Cir. 1979), cert. denied, 444 U.S. 1034, 100 S. Ct. 706, 62 L. Ed. 2d 670 (1980); accord United States v. Pinto, 755 F.2d 150, 152 (10th Cir. 1985); United States v. Walton, 602 F.2d 1176, 1179-80 (4th Cir. 1979). This view is bolstered by the American Bar Association's Standards for Criminal Justice § 3-3.01(c), providing that the prosecutor will not discourage or obstruct communications between prospective witnesses and defense counsel and that it is unprofessional conduct for the prosecutor to advise a prospective witness to decline to give the defense information that person has a right to give. See also Model Rules of Professional Conduct Rule 3.4(f).
United States v. Carrigan, 804 F.2d 599, 603 (10th Cir. 1986). The court also recognized that innuendos, implications, and insinuations also constitute a chilling effect and discourages the witness to be interviewed; not just an overt, obvious, and open hindrance by the prosecution.
Furthermore, the government may not advise a government witness that s/he not talk to anyone unless the prosecution is present. If the government interviewed witnesses “unencumbered by the presence of the defense counsel,” then the same should be afforded to the defense. Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966). The court opined:
[W]e know of nothing in the law which gives the prosecutor the right to interfere with the preparation of the defense by effectively denying defense counsel access to the witnesses except in his presence. Presumably the prosecutor, in interviewing the witnesses, was unencumbered by the presence of defense counsel, and there seems to be no reason why defense counsel should not have an equal opportunity to determine, through interviews with the witnesses, what they know about the case and what they will testify to. In fact, Canon 39 of the Canons of Professional Ethics makes explicit the propriety of such conduct: "A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party." Canon 10 of the Code of Trial Conduct of the American College of Trial Lawyers is an almost verbatim provision.
Gregory v. United States, 369 F.2d 185, 188 (D.C. Cir. 1966). “A criminal trial, like its civil counterpart, is a quest for truth. That quest will more often be successful if both sides have an equal opportunity to interview the persons who have the information from which the truth may be determined. “Gregory v. United States, 369 F.2d 185, 188 (D.C. Cir. 1966).
Indeed, it is the government’s duty to seek the truth in every criminal prosecution, not to win at any cost. At the same time, the defense has the duty to interview witnesses and to make an independent examination of the factual circumstances. United States v. Johnson, 615 F.2d 1125, 1128 (5th Cir. 1980). Without access to the prospective government witnesses, defense counsel cannot meet this duty and render effective assistance of counsel.
If the defense can learn facts during an unfettered interview with government witnesses that could exonerate a defendant on trial, the government should applaud and encourage and arrange those interviews, because it will: further the truth, foster the system of justice, and forsake the conviction of an innocent person.
CONCLUSION
WHEREFORE, based upon the foregoing reasoning and authority, Benjamin Stanley respectfully requests that this Honorable Court will:
(a) GRANT this Motion For The Government to Provide Access to Government Witnesses;
(b) ENTER an Order (1) requiring the government to identify all cooperating government witnesses, including providing at least the city and state of current whereabouts and (2) instructing the government to notify its witnesses and their counsel that their plea agreements with, and favorable sentencing or post-sentencing recommendations by, the government will not be jeopardized if they agree to be interviewed by the defense;
(c) PERMIT Benjamin Stanley to supplement and amend this motion as the same may become necessary or dictated by the progress of the case;
(d) PERMIT Benjamin Stanley to file such other motions as the same may become necessary or dictated by the progress of the case;
(e) ALLOW Benjamin Stanley to file a reply to the government’s response; and,
(f) GRANT Benjamin Stanley such other and further relief in his favor as this Honorable Court deems just and proper.
Respectfully submitted this 28th day of January, 2010. .
/s/ Ethenia F. King Grant
Attorney for Benjamin Stanley
GA Bar No. 420252
KING GRANT & ASSOCIATES, LLC
149 S. McDonough St. ? Suite 160
Jonesboro, Georgia 30236
Tel: 770.210.4886
Fax: 770.477.1869
ekinggrant@kinggrantlaw.com |
