U.S. v. TRAFICANT, (N.D.Ohio 2001)

LESLEY WELLS, United States District Judge.

The United States of America requests that this Court issue a protective order under Rules 6(e)(3) and 16(d)(1) of the Federal Rules of Criminal Procedure ordering that with respect to materials to be disclosed pursuant to Brady v. Maryland, 373 U.S. 83 (1963), Defendant Traficant and "any attorney with whom he may consult may not make additional copies of these materials, may not publicly disclose them or the substance of their contents (including but not limited to members of the news media) and may not reveal them to other persons except as necessary to preparing the defense." (Docket No. 30 at 2). The United States also notifies the Court that it intends to disclose to Defendant Traficant certain FBI FD-302 forms, including redacted forms, and one witness statement. It is the government's position that "absent the Brady rule," none of these materials would be subject to disclosure at this time. The Brady case addresses the prosecution's responsibilities regarding, and a defendant's due process entitlement upon request to, exculpatory information which is in the possession of the prosecution and is material either to guilt or to punishment.

Defendant Traficant broadly objects to the United States' request, emphasizing that "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .," and asserting that the government is asking the Court to make an unconstitutional order and that "(s)uch a gag order would also violate the Speech and Debate Clause of the U.S. Constitution." (Docket No. 36 at 2).

Defendant Traficant relies upon a Sixth Circuit criminal case, one which also involved a congressman, United States v. Ford, 830 F.2d 596, 603 (6th Cir. 1987). Unlike this case, the Ford case involved the sue sponte issuance by a trial judge of an overbroad gag order. Moreover, the judge's order failed to meet the clear and present danger standard, a prerequisite to issuance of judicial First Amendment restraints even when they are designed to ensure fair and impartial trials.

This case, unlike Ford, involves a request by the government for a protective order regarding a subset of discovery materials the government simply characterizes as not subject to disclosure and then, with little justification, legal or factual, asserts that "(p)ublic disclosure of these materials at this time is completely unwarranted". The proposed protective order would impose First Amendment restraints on Congressman Traficant, "any attorney with whom he may consult", and, arguably, members of the news media. It might also implicate the congressman's Privilege of Speech or Debate. See U.S. CONST. art. 1, § 6, cl. 1.

As Judge Nelson cautions in his concurring opinion in Ford: "A decision on whether to enjoin the defendant in a criminal case from making public statements always requires a careful exercise of judicial discretion, and in the case at bar that discretion would have to be exercised not only in the light of the First Amendment rights that everyone possesses, but also in the light of Mr. Ford's position as a Member of Congress." Id. at 605.

The fact is that although the government states that when this motion is ruled upon it "immediately" will provide all Brady material to the defendant, the government's actual obligation is only to provide such material "in sufficient time to permit the defendant to make effective use of that material at trial." United States v. Presser, 844 F.2d 1275, 1284 (6th Cir. 1988). Notably, the Sixth Circuit found that delaying production of Brady material that also fell under the Jencks Act, until the witness had testified on direct examination in the trial of the case, preserved the Brady mandate regarding defendant's ability to defend himself effectively at trial:

Therefore, so long as the defendant is given impeachment material, even exculpatory impeachment material, in time for use at trial, we fail to see how the Constitution is violated. Any prejudice the defendant may suffer as a result of disclosure of the impeachment evidence during trial can be eliminated by the trial court ordering a recess in the proceedings in order to allow the defendant time to examine the material and decide how to use it.

Presser at 12834. Given the generality of the governments motion, one can only guess, for example, whether the "witness statement" would fall under the Jencks Act. Nonetheless, it is clear that Brady does not command immediate turnover by the government to defendant of the grand jury transcripts, FBI FD-302 forms, and one witness statement for which the protective order is sought. They need only disclose Brady materials "in sufficient time to permit defendant to make effective use of that material at trial."

In short, the government has provided no justification for the issuance of its proposed order, and the government's motion, therefore, is denied.

IT IS SO ORDERED.