Case 3:08-cr-00036-PJB Document 812

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO UNITED STATES OF AMERICA Plaintiff v. ANIBAL ACEVEDO VILA, et al Defendants CRIM. NO. 08-36 (PJB)

GOVERNMENTS RESPONSE TO MOTION TO VACATE PROTECTIVE ORDER On May 30, 2008, this Court entered a Protective Order in the above-captioned case governing the use and disclosure of all material shared in discovery. Dkt. No. 156. The Protective Order applies to the Government and the defense only, and specifically commands that: all parties to this matter shall refrain from releasing, or authorizing anyone within his or her control to release, information pertaining to the above-captioned matter and documents and materials exchanged in the course of pre-trial discovery in connection with the abovecaptioned matter for public use or dissemination . . . . Dkt. No. 156 at 2. The Protective Order also notes that all parties have concurr[ed] in the need for issuance of a Protective Order to govern all pre-trial discovery exchanged between the parties, Dkt. No. 156 at 1, and that it is the further finding of this Court that the parties have made a sufficient showing to authorize entry of a Protective Order as required by Fed. R. Crim. P. 16(d)(1), Dkt. No. 156 at 2. Finally, the Protective Order admonished that within 90 days of the conclusion of the case all such documents were to either be returned to the disclosing party or, in the alternative, destroyed and so certified by the attorney who received the original disclosure. Dkt. No. 156 at 5.

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United States v. Anbal Acevedo Vil, et. al. Crim. No. 08-36 (PJB) Governments Response to Motion to Vacate Protective Order Page 2

On September 7, 2011, El Vocero newspaper, a non-party to these proceedings, filed an amicus curiae motion to vacate the Protective Order, and further requesting that the public and El Vocero [] be allowed access to all of the documents included in the Protective Order . . . . Dkt. No. 810 at 12. As a non-party that is not governed by the Protective Order, El Vocero does not have the legal standing to request such relief. Additionally, the order requiring the parties to destroy or return the documents within 90 days of the conclusion of the case moots the requested relief. Moreover, the reasoning employed by El Vocerothe Protective Order violates its First Amendment rightschallenges the use of Protective Orders generally, undermines the validity of Rule 16(d)(1), which specifically contemplates the use of Protective Orders, and threatens the vitality of the criminal justice system. Finally, it cannot be ignored that El Vocero is requesting this Court to intervene itself in a current political dispute in the District of Puerto Rico,1 something the law unequivocally forbids. Accordingly, the United States opposes the motion to vacate the Protective Order. I. The El Vocero Newspaper Has No Right to Intervene in the Case.

Although the request to vacate the Protective Order is not procedurally couched as a motion to intervene, El Vocero is seeking to do just that, to intervene as a non-party in this case and assert

/ El Vocero grounds its requested relief in order to obtain a copy of the case-related documents that Acevedo Vila reportedly sent to former Governor Sila Maria Calderon. See Dkt. No. 810. The details surrounding that incident are fully recounted in the Motion to Vacate the Protective Order, and therefore, will not be repeated in this response. Those details are of limited evidentiary and legal significance for purposes of the disclosure issue before the Honorable Court. 2

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disclosure rights to case-related documents and information which are presumptively private pursuant to the terms of the Protective Order. The propriety of this intervention is not directly addressed in El Voceros motion. However, it is noteworthy that the Federal Rules of Criminal Procedure do not provide a right of intervention in a criminal case, such as contemplated in civil litigation.2 Furthermore, even where intervention falls within the ambit of the rule, the intervention must be timely. Fed. R. Civ. P. 24. This belated petition, three and a half years after entry of the Protective Order strains notions of timeliness. Furthermore, the parties exchanged liberal discovery in the case in full and justifiable reliance on the protections of the order.3 As El Vocero observes in its motion, the First Amendment implicitly guarantees the right to access criminal trials, but this First Amendment right of access should not be confused or conflated with a right of access to documents protected by a court order issued under Rule 16(d)(1) and not used in any part of the proceedings, as asserted by El Vocero. Indeed, even in cases where the common law right of intervention has been judicially validated, it has been strictly conditioned on claims for inspection and copying of public records and documents, including judicial records, not investigative and other law enforcement reports which are the subject of a criminal investigation. See, e.g., Nixon v. Warner Communications, 435 U. S. 589, 597 (1978) ([C]ourts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.); In re: Associated Press, et al., v. Ladd, et al.,162 F.3d 503 (7th Cir. 2998)
2

/ Federal Rule of Civil Procedure 24 provides for Permissive Intervention. / The Protective Order has been in effect since May 30, 2008. 3

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(permitting access to the trial testimony of the Governor of Illinois, in a case in which the defendant had been charged with defrauding the Illinois Department of Public Aid). There can be no fair dispute that confidential investigative documents that were never filed with the Court nor used by the parties in the litigation of the case do not fall into the category of judicial records. El Vocero sidesteps this dispositive distinction and relies instead on fundamental, yet inapposite, First Amendment principles. These principles of First Amendment right of access to criminal trials do not advance the merits of a request by a non-party to vacate a Protective Order that applies only to the parties in a case. II. El Vocero Attempts to Challenge the Validity of Protective Orders Generally.

El Vocero complains that the documents underlying the political dispute between Acevedo Vila and Ms. Calderon are governed by the Protective Order. Dkt. No. 810 at 2. El Vocero continues, [d]ue to this fact, the contents of the Documents were not to be revealed to the public, this, blocking the Puerto Rico medias access to the truth. This argument is telling. El Vocero is not merely seeking to intervene as a non-party to vacate an order that does not apply to them. El Vocero is also challenging the validity of Protective Orders generally. In the process, the newspaper implicitly challenges the validity of Rule 16(d)(1) of the Federal Rules of Criminal Procedure, which specifically contemplates the use of Protective Orders in criminal proceedings. Protective Orders are used everyday in cases all across the country. This fact is fatal to El Voceros First Amendment argument, more fully discussed below. Specifically, El Vocero observes that the Supreme Court, in addressing a First Amendment claim for right of access, has focused on 4

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whether the place and process have historically been open to the press and the general public. Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1, 8 (1986). The fact that Protective Orders are commonly used in courtrooms across the country, and their propriety in the context of criminal cases has been codified in the Federal Rules of Criminal Procedure, fatally undermines El Voceros First Amendment argument. III. The First Amendment Does not Entitle El Vocero to Documents Under the Protective Order.

El Vocero relies on the First Amendment to advance its position that the Protective Order is legally infirm. But the First Amendment has never been interpreted so broadly. Even the cases relied on by El Vocero are careful to make this distinction. For instance, El Vocero relies on Sheppard v. Maxwell, 348 U.S. 333 (1966), for the proposition that the right to attend criminal trials is implicit in the guarantees of the First Amendment . . . . Id. at 350. El Vocero also relies on Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), for the proposition that public access to the criminal trial fosters an appearance of fairness, thereby heightening public respect for the judicial process. Id. at 578. These basic constituents of First Amendment freedom are of neglible consequence to El Voceros request, since the Supreme Court has never defined a criminal trial so broadly as to include discovery, or confidential law enforcement reports. El Vocero has failed to cite any legal authority to the contrary. IV. El Vocero Conflates its First Amendment Rights with a Criminal Defendants Sixth Amendment Rights

El Vocero next attempts to avail itself of a defendants Sixth Amendment rights to support its claim to documents governed by the Protective Order. Specifically, El Vocero mistakenly relies 5

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on the case of Bowden v. Keane, 237 F.3d 125 (2d Cir. 2001), for the proposition that the Sixth Amendment public trial guarantee confers on criminal defendants the right to be tried in a courtroom whose doors are open to any members of the public inclined to observe the trial. Id. at 129. But El Vocero is not a criminal defendant in this case, and it cannot, therefore, rely on the Sixth Amendment. Furthermore, the issue before the court is not the publics right to observe a criminal trial, which has now concluded.4 V. The Court Should Not Intervene in a Political Dispute

El Vocero makes multiple references to the dispute between Acevedo Vila and Ms. Calderon, and urges judicial intervention to protect its right to access case related materials connected with this controversy. El Vocero attempts to bait the court by suggesting that the Protective Order prevents the public from their right to know the whole story, whom this Honorable Court is protecting, and why. Dkt. No. 810 at (emphasis in original). El Vocero also asserts that [i]f this Honorable Court should deem that the Protective Order is still necessary to this day, it will have the effect of raising even more suspicion an [sic] mistrust as to the contents of the Documents. Dkt. No. 810 at 9-10. It is axiomatic that it would be improper for a court to consider such political and tabloid consequences when issuing a legal ruling. But that is exactly what El Vocero urges in its motion, perhaps because the law does not support its request. El Vocero could not be any more transparent than when it asks this Court to issue an order that the public and El Vocero[] be allowed access to

/ The trial in this case was open to the public and amply covered by the media in Puerto Rico. 6

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all of the documents included in the Protective Order . . . . Dkt. No. 810 at 12. Such relief is well beyond the purview and jurisdiction of this Court. VI. Conclusion.

Accordingly, this Court should deny the motion to vacate the Protective Order.5

RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico, this 15th day of September, 2011.

ROSA EMILIA RODRGUEZ-VLEZ UNITED STATES ATTORNEY

U.S. DEPARTMENT OF JUSTICE CRIMINAL DIVISION PUBLIC INTEGRITY SECTION

s / Mara A. Domnguez Mara A. Domnguez First Assistant United States Attorney USDC No. 210908 Torre Chardn, Suite 1201 350 Carlos Chardon St. Hato Rey, Puerto Rico 00918 Phone (787) 766-5656, Fax (787) 766-5632

Peter Koski Trial Attorney 1400 New York Avenue N.W. Washington, DC 20530 Peter Koski (Peter.Koski@usdoj.gov) Phone (202) 307-3589

/ Counsel for defendant Luisa Incln Bird has authorized the government to represent that he joins the Government's opposition to El Voceros Motion to Vacate the Protective Order. 7

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this same date, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to counsel for the Defendants.

s / Mara A. Domnguez Mara A. Domnguez First Assistant United States Attorney