Fumo Res Re Gov Mil Admit Sprague Statements

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA

:

v.

: : :

VINCENT J. FUMO,

No. 06-CR-319-03 (Ronald L. Buckwalter, J.) FILED ELECTRONICALLY

Defendant.

:

RESPONSE OF DEFENDANT FUMO IN OPPOSITION TO MOTION TO ADMIT STATEMENTS OF FORMER COUNSEL FOR DEFENDANT The United States has filed a motion seeking leave of court to offer as evidence "certain statements of attorney Richard A. Sprague made during the time that Sprague represented" defendant Fumo.

Doc. 452 (Jan. 9, 2009).

This motion raises profound

questions of public policy, while simultaneously threatening to complicate and prolong the ongoing trial for little or no conceivable benefit to the government’s case.

For any number of

different reasons, the government’s motion should be denied. The starting point must be the vague nature of the offer of proof made in the motion.

What evidence exactly does the

government propose to offer?

The first paragraph of the motion

says that Sprague "repeatedly stated to the government on Fumo’s behalf" a certain position with respect to the Citizens Alliance charges, while the first two paragraphs of the "background" section assert that there are two such statements, one on an unspecified date "shortly []after" January 25, 2004, made to unspecified persons at an unspecified location, and the other on August 8, 2006, to "the assigned prosecutors and agents."

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Is

twice what is meant by "repeatedly," or are the particular meetings identified in the motion intended as mere examples? From the second meeting, three words are quoted. 2.

Mtn., at

Because the government proffers nothing documentary with its

motion, the defense assumes that there is nothing in writing to support even this snippet of quotation.

From this we can only

guess that the government proposes to call the case agent as a witness and ask her to recount (perhaps with the aid of undisclosed notes) her recollection (two-and-a-half to five years later) of just what Mr. Sprague said, and presumably what he did not say. witness.1

Or perhaps Mr. Sprague himself is the proposed Without a detailed offer of proof, no definitive

response can be made to the present motion.

If and when the

government makes a specific offer of proof, the defense may have to respond further. A defendant’s attorney is duty-bound to advocate to the attorneys for the government the position most favorable to his client, in hopes of persuading them to take appropriate action within their discretion, both pre- and post-indictment.

Such

meetings are generally held under express or implied "proffer" ground rules which protect the statements made from being used against the defendant, at least directly. such "attorney proffers" are common.

In this district,

While that category of

meeting may more often take place after indictment, it also includes pre-indictment meetings of the kind involved here.

It

_____________________ 1 If so, then complex issues of attorney-client privilege would surely arise. -2-

is widely understood that statements made at an attorney proffer are off the record and will not be used later against one’s client.2

An experienced defense attorney in that situation

necessarily chooses his or her words carefully, in accordance with the governing rules and expectations.3

Statements made at

such meetings cannot later be admitted in violation of those rules.

United States v. Margiotta, 662 F.2d 131, 142-43 (2d

Cir. 1981).

Before the statements proffered by the government

here could be used at trial, the surrounding expectations would have to be discovered and applied. Not only would the proposed evidence violate the unwritten rules governing attorney proffers, but it would also be inadmissible under Fed.R.Evid. 410.

An attorney presentation seeking a

declination of indictment, such as is described in the government’s present motion, can in any case serve as the opening of _____________________ 2 If necessary, the defense will call experienced practitioners, including former Assistant U.S. Attorneys, to establish these general practices and expectations. 3 Counsel may even have to parse his/her words at such a session, in order to protect confidences or for strategic reasons. For example, an assertion that someone received "no benefit" from associating with an organization may in context mean something very different from a representation that the person received "no benefits." A claim of having not received "any money" or "not one penny," to take a couple of other hypothetical examples, might not be inconsistent with having received compensation in kind. Neither statement means, for example, the same as "did not receive anything." Cf. Gov’t Mtn., at 2. Lying, of course, is off limits, Pa.R.Prof.Cond. 4.1, but selective disclosure is generally not. In this context, any claim by the government that two statements of counsel, made at different times and in different contexts, are so contradictory to one another as to constitute circumstantial evidence of consciousness of guilt on the client’s part would have to be very closely examined and runs a high risk of misleading and unfairly prejudicing the jury. -3-

plea discussions and in this as in any case must be viewed as such.

Evidence of "any statement made in the course of plea

discussions with an attorney for the prosecuting authority which do not result in a plea of guilty" are simply "not, in any ... criminal proceeding, admissible against the defendant ...." Rule 410(4).

See United States v. Hardwick, 544 F.3d 565, 569-

70 (3d Cir. 2008) (discussing Rule 410(4) and noting that in United States v. Mezzanatto, 510 U.S. 196 (1995), five Justices (among those concurring and dissenting) had warned against any construction of Rule 410 that would "undermine a defendant’s incentive to negotiate"). If defense counsel must fear having their words -- or a general recollection and characterization of their words -- used against their clients at a later trial if efforts to secure a non-prosecution agreement fail and no plea ensues, then counsel will not be willing or able to participate in an informal process which has heretofore served the justice system well in this District.

Under either Rule 410 or a proper understanding

of the unwritten rules of attorney proffers, the government’s motion to admit statements of Mr. Sprague and attribute them to Senator Fumo should be denied. In addition, at any meeting between defense counsel and the prosecutors the position advanced by the defense may or may not be based on information received from the client; it may on the other hand derive from independent investigation.

Counsel’s

investigation may have been conducted in good faith and yet at that time be incomplete.

Mr. Sprague, in particular, is far too

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experienced and savvy an attorney to have suggested in any such meeting as is described in the present motion the precise source of any information he relayed to the prosecutors or agents. Surely, he would never have said, in words or substance, "According to my client, the facts are these ..."4 If defense attorneys generally believe that agents’ characterizations of their words may later be used against their clients at trial if attempted negotiations do not succeed, the entire process will suffer terribly.

"The unique nature of the

attorney-client relationship ... demands that a trial court exercise caution in admitting statements that are the product of this relationship."

United States v. Harris, 914 F.2d 927, 931

(7th Cir. 1990); see United States v. Valencia, 826 F.2d 169 (2d Cir. 1987) (affirming district court order excluding defense counsel’s statements made to prosecutor in effort to secure agreement to bail).

The Court must take these policy issues

into consideration in ruling on the present motion.

See United

States v. Jung, 473 F.3d 837, 841-42 (7th Cir. 2007) (holding that district court had given too little weight to harmful impact on attorney’s proper role, and therefore had erred in

_____________________ 4 Such meetings are not ordinarily recorded or transcribed. Those in attendance may or may not take notes, and if they do the notes may not be detailed or verbatim. In the event that an issue should arise as to exactly what was said, or what was meant by what was said, the situation becomes even more complicated and problematic. Not only might a collateral minitrial erupt over such issues, but the prosecutors themselves may become essential witnesses, or by not testifying may be perceived to be vouching for the agent who does testify. See United States v. Vitillo, 490 F.3d 314, 327-29 (3d Cir. 2007). -5-

admitting evidence of a statement made by counsel five years before trial). The court should also reject the government’s motion because it proposes to treat statements made on Senator Fumo’s behalf by attorney Sprague too mechanically as representative assertions.5

If the Court were even to contemplate allowing the

presently tendered evidence, the extent of Mr. Sprague’s authority at the time,6 the nature of Senator Fumo’s involvement in directing and planning the presentation, and perhaps the sources of information on which Mr. Sprague relied would also have to be developed.

As Third Circuit authority, the government relies

principally on United States v. Catena, 500 F.2d 1319 (3d Cir. 1974), but the circumstances of the meeting in that case were nothing at all like those here.

In Catena, the defendant was

personally present during the meeting and clearly ratified his

_____________________ 5 The government appears to invoke Fed.R.Evid. 801(d)(2)(C) and 801(d)(2)(D), Mtn. at 7, but those rules do not, in and of themselves, render any statement admissible. They merely declare that representative admissions "are not hearsay." Since it does not appear that the government wishes to introduce the statements at issue for their truth, the hearsay rule is not implicated. See Fed.R.Evid. 801(c) (definition of "hearsay"). As a result, the extent to which Rule 801(d)(2)(D) extends the admissibility of an agent’s statements on behalf of a principal has no bearing on the present matter. Cf. United States v. Vito, 1988 WL 78031, *2 (E.D.Pa. 1988) (Shapiro, J.). 6 The meetings at issue occurred during a period when this Court has held Sprague was acting under multiple conflicts of interest. See United States v. Fumo, 504 F.Supp.2d 6, 33-36 (E.D.Pa. 2007). Assertions made by attorney Sprague about the basis for Senator Fumo’s defense should therefore be presumed to have been influenced by one or more of his own interests, or those of his other clients. If those conflicts were disclosed to Senator Fumo and waived by him at the time of the meetings in question, no evidence of that fact has been adduced. -6-

attorney’s statement, which was in writing and in no way uncertain in content. The timing of the government’s first reason that the evidence should not be allowed is the discovery violation.

Oral

statements of the defendant must be disclosed in "substance," Fed.R.Crim.P. 16(a)(1)(A), along with any "written record containing the substance of any relevant oral statement," id.(a)(1)(B)(ii).7

Unlike documents, such statements are

disclosable whether or not the government intends to introduce them.

If, the prosecution contends -- as now asserted in the

present motion -- that statements uttered by a third party amount to statements of the defendant made through a representative, then a written summary of Mr. Sprague’s statements (assuming a verbatim transcription is not available) should have been produced long ago. 16(c).

The duty to produce continues.

Rule

Thus, even if Mr. Sprague’s statements became "evidence"

in the prosecutors’ minds only when (as they now dramatically profess, Mtn. at 3 n.1) the prosecutors heard the defense opening statements in court, they should have been produced then -- many weeks ago -- and if not then, at least in more detail now. alone.

The Court could deny the present motion for this reason Rule 16(d)(2)(C).

_____________________ 7 To be disclosable under Rule 16(a), the statement must be one made "in response to interrogation" (but not necessarily "custodial interrogation"). Of course, if the government claims that the prosecutors and investigators asked no questions of Mr. Sprague, then the rule would not apply. -7-

Finally, the Court will have to evaluate any specific offer the government makes under Fed.R.Evid. 403.

As the motion

itself admits, the government has presented at trial a direct statement of Senator Fumo to the same effect as the alleged representative assertions it now proposes to add. referencing Gov’t Exh. 920 (admitted 1/8/09).

Mtn. at 2,

Thus, the prose-

cutors concede that the evidence they now proffer is cumulative. The point on which the government suggests the evidence is relevant has already been made, they say, by "copious evidence." Mtn. at 11.

The extent of confusion, unfair prejudice, and

waste of time would greatly outweigh any probative value that the proffered evidence might have, regardless of the purpose for which it is offered.

See Mtn. at 10-12.

For any and all of these many reasons, the government’s motion should be denied. Respectfully submitted, Dated: January 12, 2009 PETER GOLDBERGER PA Atty. No. 22364 50 Rittenhouse Place Ardmore, PA 19003 (610) 649-8200 fax: (610) 649-8362

By:

s/Peter Goldberger DENNIS J. COGAN DENNIS J. COGAN & ASSOC. 2000 Market St., suite 2925 Philadelphia, PA 19103 (215) 545-2400 fax: (215) 988-1842

e-mail: [email protected]

e-mail: [email protected]

STEPHEN ROBERT LaCHEEN LaCheen Wittels & Greenberg, LLP 1429 Walnut Street, 13th Floor Philadelphia, PA 19102 (215) 735-5900 fax: (215) 561-1860 e-mail: [email protected]

Attorneys for Defendant Vincent J. Fumo

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CERTIFICATE OF SERVICE On January 12, 2009, I served a copy of the foregoing document through the Court’s electronic filing system on the attorneys for the government, as follows: John J. Pease, Esq. Robert A. Zauzmer, Esq. Assistant U.S. Attorneys 615 Chestnut St., suite 1250 Philadelphia, PA 19106

Edwin J. Jacobs, Esq. JACOBS & BARBONE, P.A. 1125 Pacific Ave. Atlantic City, NJ 08402 __s/Peter Goldberger____________

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