orden besosa divulgacion fbi
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA,
Plaintiff,
v.
JUAN BRAVO-FERNANDEZ [1] and
HECTOR MARTINEZ MALDONADO [2],
Defendants.
CRIMINAL NO. 10-232 (FAB)
MEMORANDUM AND ORDER
BESOSA, District Judge.
On May 25, 2011, the government filed a motion for an order to
show cause to determine whether anyone violated the Courts
Protective Order (Docket No. 29) by disclosing sensitive
information taken from an official FBI document, provided to the
defense in discovery, and what action should be taken, if any,
against them. (Docket No. 494.) The issue came to light when, on
May 23, 2011, Senator Thomas Rivera-Schatz, a self-proclaimed
supporter and agent of defendant Martinez, publicly read the
contents or part of the contents of the FBI document from the
Senate floor. (Docket No. 494 at 3-4.) On May 26, 2011,
defendants filed a response to the governments motion, as well as
affidavits and sworn declarations by defendants and their counsel
of record stating that they had not disclosed the FBI document at
issue to Senator Schatz. [sic] (Docket No. 498.) The government
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filed a reply on the same date, alleging that defendants
affidavits and sworn declarations were insufficient, because the
Courts Protective Order prohibits the defense from disclosing the
documents to anyone outside the defense team. (Docket No. 499)
(emphasis added). On May 27, 2011, defendants filed supplemental
declarations in response to the governments motion, stating that
defendants and their counsel of record had not disclosed the FBI
document to anyone not covered by the protective order. (Docket
No. 500.)
The Courts Protective Order states in relevant part:
Any and all discovery materials the United States
produces to defendants Bravo and Martinez shall be
reviewed by only (i) them, (ii) their attorneys of
record, (iii) employees of those attorneys, (iv) a
photocopying or data processing service to whom it may be
necessary that defendants Bravo and Martinez show the
materials for the purposes of preparation, trial, directappeal (if any), and collateral attack (if any) of this
matter, (v) witnesses or potential witnesses, and
(vi) experts or investigators assisting in the
preparation, trial, direct appeal (if any), and
collateral attack (if any) of this matter. Defendants
Bravo and Martinez shall not disclose the contents of any
discovery material to any individual or entity except as
provided herein, as agreed to by the parties, or as
further ordered by the Court.
(Docket No. 29 at 1-2.)
The Protective Order explicitly provides that the discovery
material shall be used solely for the preparation, trial, direct
appeal (if any), and collateral attack (if any) of this matter and
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for no other purpose whatsoever. (Docket No. 29 at 2.)
Additionally, if the discovery material or its contents are
disclosed to any of the individuals or entities listed above,
defendants . . . or their attorneys of record must give to the
individual or entity a copy of this Order and maintain a copy
signed and dated by the individual or a representative of the
entity until such time as all appeals in this matter (if any) are
concluded. Id. Any individual or entity, by signing and dating
the Protective Order, who receives copy of any material produced,
submits himself, herself or itself to the jurisdiction of this
Court for all purposes including sanctions or contempt for
violation of this Order. Id. At 4.
The FBI document at issue summarized an interview of Jorge de
Castro-Font and was produced to defendants by the government as
part of the discovery production in this case. (Docket No. 494
at 4.) The Courts Protective Order, which was requested by the
government and to which defendants consented, unequivocally covers
the FBI document. Id. at 5. The government claims that the
document in the possession of Senator Rivera-Schatz has been
identified with absolute certainty to be the identical document
that the government produced to defendants as part of its discovery
obligations. Id. Senator Roberto Arango has also publicly stated
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that he has seen the document that was in the possession of Senator
Rivera-Schatz and from which he read on the Senate floor. Id.
Because the FBI document has undisputably been publicly
disclosed in contravention of this Courts Protection Order, the
Court GRANTS the governments motion for an order to show cause to
determine who violated the Courts Protective Order, and what
action should be taken, if any, against them. A hearing shall be
held on July 15, 2011 commencing at 9:00 a.m., to determine it.
Prior to the hearing, on or before July 1, 2011, the parties
are ordered to provide to the Court, in chambers, ORIGINALS of the
copies of the Protective Order signed and dated by any individual
or representative of an entity who has received the discovery
material or has been notified of its contents. At the hearing set
for July 15, 2011, the Court will hear testimony from all persons
or representatives of any entities who have signed a copy of the
Protective Order as evidence of receipt of discovery material,
including, but not limited to, defendants, attorneys, employees,
photocopying or data processing personnel, witnesses or potential
witnesses, and experts or investigators. Additionally, the
following persons are ORDERED to appear at the hearing to provide
testimony:
1. Senator Thomas Rivera-Schatz
2. Senator Roberto Arango
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3. Richard Roark1
4. Edgar Vega-Pabon2
The United States Marshal will serve a copy of this Order to
Senators Rivera-Schatz and Arango and Messrs. Roark and Vega-Pabon.
The parties may subpoena any other person they may feel should
testify at the hearing.
Finally, all government agents involved in this case are
ordered to provide declarations or affidavits, similar to those
provided by defendants in Docket No. 500, to the Court on or before
July 1, 2011.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 9, 2011.
s/ Francisco A. Besosa
FRANCISCO A. BESOSAUnited States District Judge
Mr. Roark appeared at a chambers conference on December 21,1
2010 at which only attorneys were to be present. The minutes ofthat conference identify him as an attorney for defendant Martinez.
(Docket No. 129.) The Clerk is ordered to remove the restriction
on Docket No. 129.
Mr. Vega-Pabon appeared as counsel for defendant Martinez2
until he withdrew on February 10, 2011, on the eve of the trial.
(Docket Nos. 308 and 318.) The Clerk is ordered to remove the
restriction on Docket No. 308.
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