BARRY J. PORTMAN
Federal Public Defender
Assistant Federal Public
Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant XXX
XXX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA, Plaintiff, v. Defendants.
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No. CR XX-XXX-XX Honorable William H. Alsup July 31, 2001 2:00 p.m. |
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The United States, in its
opposition to Mr. XXX XXX' second motion for reconsideration, sets forth two
procedural challenges to the motion and asks leave to respond to the merits of
the motion should the in camera proffer be unsealed. In sum, the prosecution asserts that it is
improper to support a motion with a proffer, and that, independently, it is
improper to support a motion with ex parte in camera materials. Finally, the prosecution set forth a speedy
trial calculation with which the defense concurs. As stated in the defendant's second motion for relief from
prejudicial joinder, if a severance is granted, time may properly be excluded
in the trailing case because of the pending prosecution in the first trial.
As to the first objection,
the defense has no objection to submitting the proffer as a declaration under
penalty of perjury. The defendant will
do so but respectfully asks leave to do so ex parte and in camera. As explained below, such a procedure is an
approved means of safeguarding a
defendant's fifth amendment rights. It
bears noting, however, that proffers are routinely used in the in limine
process, for example, during requests for jury instructions. It is understood that, like all
representations to the court, a proffer must be made in good faith. Under the Local Rules, the court has wide
discretion in the treatment of noncompliant declarations. See Civil L.R. 7-5(b) ("An affidavit .
. . . may be stricken.") (emphasis added). Where as here, a procedure is employed to
protect a defendant's constitutional rights, the Local Rules must clearly
contemplate flexible application. As
said, if the court requires a signature to enforce veracity, the defendant will
sign the proffer, but the defendant merely wishes to do so without waiving his
right to remain silent.
The second procedural
argument of the prosecution is more weighty; it presents the question whether
the factual submission in support of the second motion for relief from joinder
may be made ex parte and in camera. The answer is that in camera proceedings are routinely
employed in situations assessing the defendant's fifth amendment
privilege. See United States v.
Drollinger, 80 F.3d 389, 393 (9th Cir. 1996) ("[T]he required inquiry
is best made in an in camera proceeding, where the defendant is given
'the opportunity to substantiate his claims of the privilege and the district
court is able to consider the questions asked and the documents requested by
the summons.'") (citation omitted).
In United States v. Bohn,
the United States Court of Appeals for the Ninth Circuit addressed the question
whether an in camera hearing on the defendant's right to invoke the
fifth amendment during trial is a critical stage of the prosecution mandating
assistance of counsel. The court held
that it is:
An in camera hearing
on the validity of a fifth amendment assertion, then, is plainly a situation in
which skilled counsel would be useful in helping the accused understand the
legal confrontation. This conclusion is
only amplified where, as here, the district court's decision on the validity of
the privilege will determine whether a criminal conviction is possible. This
decision clearly "tests the merits of the accused's case. We hold that the in camera proceeding
to determine the validity of Bohn's fifth amendment claim was a critical stage
of the prosecution . . . .
Bohn, 890 F.2d at 1081 (9th Cir.
1989) (internal citations and quotations omitted). This holding implicitly endorses the in camera hearing
process, even where the determination made outside the presence of the
prosecution is case dispositive.
In this case, the defendant must satisfy two prongs to mandate
severance: possession of important
testimony on one charge and a strong need to refrain from testifying on another. One of these prongs is essentially an
assertion of Fifth Amendment privilege, as in Bohn; the other is a
waiver of fifth amendment privilege. If
in camera proceedings are appropriate with a mere assertion of the right
to remain silent, they are a fortiori appropriate when there is an assertion
of the right as to one charge and a forced waiver of the right as to
another. Moreover, if in camera
proceedings are appropriate in the circumstance of a case dispositive
invocation of the right to remain silent, they are a fortiori
appropriate in the case of a nondispositive procedural motion which lies
soundly within the court's discretion, sua sponte, ex parte, or
otherwise.
The Ninth Circuit case of United
States v. Eshkol implicitly endorses the use of an in camera proffer
to prevent the government from learning the defense theory. In that case, the defendant argued that he
was forced to waive his right to remain silent while moving to dismiss an
indictment for counterfeiting. He
argued that pre-indictment delay had caused him to lose a key witness who could
have testified that the counterfeit images were to be used in an advertising
poster. The government was unaware of
this "advertising" theory of defense, and based on this new
information, shored up its case to cover such a contingency: it brought a superseding indictment adding
the charge of "creating a likeness" of currency. The defendant argued that the superseding indictment was based on the
information gained from a forced waiver of the right to remain silent, because
the defendant had to state his need for the missing witness in order to prevail
on the motion to dismiss for delay. The
court found the argument meritless, in part because the defendant had not
submitted an affidavit of his own testimony, but merely a proffer suggesting a
defense theory. He had not waived his
own right to remain silent. But, more
importantly, the court noted that any waiver was chosen, rather than forced: "Eshkol's attorney's failure to request
an in camera proffer, which could have prevented the government from
learning the defense theory," was the cause of the incriminating
revelation. United States v. Eshkol,
108 F.3d 1025, 1027-1028 (9th Cir. 1997).
Eshkol not only endorses the exact procedure followed in the
instant case, it strongly suggests that to do otherwise may be dangerous and
ineffective lawyering.
III. CONCLUSION
For the aforementioned
reasons, the Court should grant Mr. XXX XXX= motion for severance of counts one
through three of the indictment and do so without unsealing Mr. XXX XXX' in
camera proffer.
Dated: July 25, 2001
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
JOHN PAUL REICHMUTH
Assistant Federal Public
Defender
CERTIFICATE OF SERVICE
The undersigned hereby
certifies that on this day, he did deliver to Lisa V. Tenorio AUSA, a copy of
Defendant XXX XXX=
DEFENDANT'S REPLY TO UNITED
STATES' OPPOSITION TO SECOND MOTION FOR RELIEF FROM PREJUDICIAL JOINDER AND
RECONSIDERATION
July 25, 2001 _______________________________________
