VERNON S. BRODERICK, United States District Judge:
Currently pending before me are Defendants' pretrial motions. Each Defendant moves for an order directing the United States Attorney's Office for the Southern District of New York (the "Government" or "USAO") to (1) conduct a Brady review of and/or produce certain files of the United States Securities and Exchange Commission (the "SEC"), and materials seized or obtained from certain individuals, (2) produce Rule 16 material seized or obtained from certain individuals, and (3) produce the interview notes and the FBI interview reports ("FBI 302s") of two former staffer members of Defendant Christopher Collins. Defendant Christopher Collins also moves for an order compelling the Government to produce materials bearing on the Speech or Debate Clause of the United States Constitution.
Because the Superseding Indictment was not the product of a joint investigation between the Government and the SEC, and the Government does not have the legal right to search the non-responsive materials in, or produce the entire contents of, the devices and/or accounts at issue, Defendants' motions related to the SEC materials and Brady/Rule 16 materials is denied. With regard to the two FBI 302s and related notes, the Government fulfilled its Brady obligation by disclosing the substance of the exculpatory statements of the two former staff members. With regard to Defendant Christopher Collins's motion related to the Speech or Debate Clause, because Defendant Collins has failed to demonstrate (1) that he is legally entitled to the discovery he seeks, (2) that the Speech or Debate Clause was violated by the Government in obtaining either the indictment or superseding indictment, or (3) that the Government—with
Defendant Christopher Collins is a Congressman representing the 27th District of New York. (Sup. Ind. ¶ 3.) He was also a member of the Board of Directors of Innate, a biotechnology company headquartered in Sydney, Australia, and held approximately 16.8% of its stock. (Id. ¶ 1, 3). "Innate's primary business was the research and development of a drug called MIS416, which was intended to treat Secondary Progressive Multiple Sclerosis ("SPMS")." (Id. ¶ 2.) As part of Innate's work on developing MIS416, it undertook a drug trial designed to determine its "clinical efficacy in treating SPMS" (the "Drug Trial"). (Id.) "Because there were few or no alternative treatments for SPMS, MIS416 had the potential to be enormously profitable if the Drug Trial was successful." (Id.)
As a member of Innate's Board of Directors, Defendant Christopher Collins "regularly had access to material, nonpublic information, including about MIS416 and the Drug Trial." (Id. ¶ 3). On June 22, 2017, the initial results from Phase 2B of the Drag Trial were made available to Innate's Chief Executive Officer ("CEO"), and the results established that "MIS416 lacked therapeutic value in the treatment of SPMS." (Id. ¶¶ 12, 15.) However, the results were not publicly released, and Innate issued a press release stating that (1) it had requested that the Australian Securities Exchange ("ASX") halt trading in Innate stock because Innate had received the Phase 2B results, and (2) that Innate expected that the halt would be lifted by June 27, 2017. (Id. ¶ 16.) Such a request was not unusual since the ASX "routinely halts trading at a company's request in situations in which the company has become aware of material information, either positive or negative, but is not yet ready to announce that information to the public." (Id. ¶ 17.) Although trading was halted in Australia, it was not halted in the United States over-the-counter ("OTC") market. (Id.)
On June 22, 2017 at approximately 6:55 PM, Innate's CEO sent an email concerning the Drug Trial results in which he stated, in part, "I have bad news to report... the top line analysis of the `intent to treat' patient population (ie every subject who was successfully enrolled in the study) would pretty clearly indicate[s] `clinical failure.'" (Id. ¶ 20 (alteration in original).) The CEO went on, stating "Top-line 12-month data ... show no clinically meaningful or statistically significant differences in [outcomes] between MIS416 and placebo... No doubt we will want to consider this extremely bad news...." (Id. (alteration in original).) Defendant Christopher Collins received the CEO's email while
Defendant Christopher Collins did not trade himself, because "he was virtually precluded from trading his own shares," which were held in Australia "and thus subject to the Australian trading halt."
"On the night of Monday, June 26, 2017, after the U.S. markets had closed, Innate issued a press release publicly stating, in substance and in part, that MIS416 had failed its Drug Trial (the `Public Announcement')." (Id. ¶ 18.) Innate's stock price crashed. (Id. ¶ 19.) Specifically, on June 26, 2017, Innate's stock had closed at approximately $0.455 per share on the United States OTC market and on June 27, 2017, after the Public Announcement, the stock closed at approximately $0.0351 per share, a drop of over 92% in value. (Id.)
The Indictment was returned on August 7, 2018, and unsealed the following day. On August 8, 2018, the SEC filed insider trading charges against Defendant Christopher Collins, Defendant Cameron Collins, and Defendant Stephen Zarsky. (See generally 18-cv-7128, Doc. 1.) On that same day, the SEC filed insider trading charges against Defendant Cameron Collins's fiancée, (see generally 18-cv-7129, Doc. 1), and simultaneously
On August 6, 2019, the Government filed Superseding Indictment S1 18 Cr. 567.
On February 8, 2019, Defendant Christopher Collins filed his motion to compel production of materials related to the Speech or Debate Clause of the United States Constitution, (Doc. 62), and a memorandum in support of that motion, (Doc. 63). That same day, all defendants filed a motion to compel production of Brady and Rule 16 material, (Doc. 64), a memorandum, (Doc. 65), and declaration with exhibits, (Doc. 66), in support of that motion. Both memoranda and the declaration were filed on the public docket in redacted form, and several exhibits were filed under seal.
The Government filed an omnibus memorandum in opposition to these motions on March 8, 2019, (Doc. 69), and Defendants filed their reply memoranda on March 22, 2019, (Docs. 71-73).
In a motion filed on April 2, 2019, the United States House of Representatives ("House") sought leave to file an amicus curiae brief. (Docs. 75-76.) By endorsement the following day, I granted the request of the House and directed that it file its memorandum of law on the docket, (Doc. 77), and that memorandum was filed on April 4, 2019, (Doc. 80).
On May 3, and May 10, 2019, I held oral argument on the Defendants' motions. (Docs. 98, 100.) Prior to the oral argument held on May 3, I issued an order directing the parties to be prepared to answer certain questions listed in the order. (Doc. 84.) The order also directed that certain documents related to the motions be produced to me. (Id.) By order filed on June 10, 2019, I directed the Government to provide me with answers to certain questions and
On August 7, 2019, I held a telephone conference to discuss the implications of the Superseding Indictment for the pending motions.
Defendants seek an order compelling the Government to produce material pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Federal Rule of Criminal Procedure 16 ("Rule 16"). Specifically, Defendants seeks an order directing the Government to:
(Brady/Rule 16 Mem. 1
Defendants also argue that since the Government imaged the devices and/or copied the entire electronic and/or social media accounts of certain individuals alleged to be uncharged co-conspirators and downstream tippees
With regard to the statements of the two former staffers, Defendants seek an order directing the production of the interview notes and the FBI interview reports ("FBI 302s") so that they can understand "nature, scope, and full context of the exculpatory statements." (Brady/Rule 16 Mem. 5-6.) In response, the Government asserts that (1) Defendants are not entitled to the interview notes and the FBI 302s, and (2) it has met its obligations by providing descriptions of the substance of the exculpatory statements. (See Govt. Opp. 24-25.)
I find that because the Superseding Indictment was not the product of a joint investigation between the Government and the SEC, and the Government does not have the legal right to search the non-responsive materials in, or produce the entire contents of, the Individuals' devices and/or accounts, Defendants' motion related to the SEC Materials and Brady/Rule 16 Materials is denied. With regard to the FBI 302s and related notes, the Government fulfilled its Brady obligation by disclosing the substance of the exculpatory statements; therefore, Defendants' motion seeking the production of the FBI 302s and related notes is denied.
"The prosecution's affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20th-century strictures against misrepresentation and is of course most prominently
The Government's "Brady obligations extend only to materials within prosecutors' possession, custody or control or, in appropriate cases, that of the Department of Justice, perhaps another part of the Executive Branch, or a comparable state authority involved in the federal prosecution." United States v. Blaszczak, 308 F.Supp.3d 736, 742 (S.D.N.Y. 2018) (footnote omitted). A prosecutor's duty to review documents in the possession, custody, or control of another agency arises where the Government conducts a "joint investigation" with another agency. See United States v. Rigas, No. 02-CR-1236 (LBS), 2008 WL 144824, at *2 (S.D.N.Y. Jan. 15, 2008) (holding that there was "no joint investigation with the SEC" and therefore the Government did not need to produce documents in the custody of the SEC), aff'd, United States v. Rigas, 583 F.3d 108 (2d Cir. 2009); SEC v. Stanard, No. 06 Civ. 7736 (GEL), 2007 WL 1834709, at *3 (S.D.N.Y. June 26, 2007) (holding that FBI and SEC did not conduct a joint investigation where they participated in joint interviews but only the FBI took notes). Although the Second Circuit has not specifically addressed what criteria or factors a district court should evaluate when making a determination concerning whether an investigation is a joint investigation for purposes of triggering an extension of the Government's Brady search obligation, courts in this district have addressed the issue. In this regard, Judge Paul Oetken's decision in United States v. Middendorf, 18-CR-36 (JPO), 2018 WL 3956494 (S.D.N.Y. Aug. 17, 2018), is instructive. Judge Oetken found that "[a] number of factors are relevant in determining whether the prosecution conducted a `joint investigation,' including whether the other agency: (1) participated in the prosecution's witness interviews, (2) was involved in presenting the case to the grand jury, (3) reviewed documents gathered by or shared documents with the prosecution, (4) played a role in the development of prosecutorial strategy, or (5) accompanied the prosecution to court proceedings." Id. at *4.
According to the Fourth Amendment, "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Fourth Amendment rights are personal. Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In order to assert the protections of the Fourth Amendment a person "must show that he had a `legitimate expectation of privacy' in the place searched." United States v. Hamilton, 538 F.3d 162, 167 (2d Cir. 2008) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)); see also United States v. Villegas, 899 F.2d 1324, 1333 (2d Cir. 1990) ("A defendant has no right to have evidence suppressed on Fourth Amendment grounds unless the breached privacy expectation was his own rather than that of a third party."). "This inquiry involves two distinct questions: first, whether the individual had a subjective expectation of privacy; and second, whether that expectation of privacy is one that society accepts as reasonable." Hamilton, 538 F.3d at 167 (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)).
As support for their claim that the Government and the SEC conducted a joint investigation Defendants point to the following: (1) the reference by Special Agent Nicholas Anderson to his reliance on, among things, his "review of notes of conversations with representatives of the [SEC]" as a basis for his affidavit seeking historical cellphone location information and therefore "the fruits of the SEC investigation were relied on to obtain search warrants in the criminal investigation"; (2) the fact that information gathered from search warrants executed in the criminal investigation was shared with the SEC; (3) the participation of SEC attorneys in witness interviews with prosecutors from the Government; (4) the alleged reliance on the interviews to bring the civil and criminal cases against Defendants; (5) the alleged reliance by the Government "on a considerable number of documents from the SEC through an access request approved by the SEC"; and (6) the circumstances of a July 18, 2018 a meeting with defense counsel for Defendants Christopher Collins and Cameron Collins—despite a request for separate meetings without the participation of the SEC—attended by prosecutors, including leadership of the USAO SDNY, and both Co-Directors of the SEC's Enforcement Division." (Brady/Rule 16 Mem. 6-8.)
As an initial matter, Defendants concede that "many materials were produced by the SEC" as part of the "SEC's agreement to produce a significant portion of its investigative file to Defendants" pursuant to a consent order issued staying the SEC's civil case ("Consent Order"). (Id. at 9.) Specifically, "the SEC agreed to produce its investigative file minus certain materials the government directed it to withhold until the production of Jencks Act/§ 3500 material in this case." (Id. at 19.) Based upon the descriptions provided by the parties, it appears that only a limited number of unproduced documents remain in the sole possession, custody, and control of the SEC. Defendants now seek production of these carved out documents, described as: "Transcripts of testimony and notes of or memoranda describing interviews with; written statements made or adopted in the course of an interview by; or correspondence concerning interviews
With regard to Defendants' assertion that the SEC and the Government conducted a joint investigation, a review of the circumstances of the investigation demonstrates that the investigation was not joint. With regard to witness interviews, the SEC and the Government both participated in only 16 of 60 interviews of 37 distinct witnesses; witnesses were told that "the two agencies were conducting parallel but separate investigations"; the USAO arranged all but three of the interviews; virtually all of the interviews were conducted at the offices of the USAO; the USAO did not participate in interviews held at the offices of the SEC; during interviews in which both the USAO and SEC participated that were conducted pursuant to a proffer agreement, "the witness executed separate proffer agreements with the USAO and the SEC"; the SEC did not take notes during interviews in which both agencies participated; and the SEC did not—with the exception of one interview whose report was produced to Defendants in civil discovery—create reports of the witness interviews. (5/3/19 Tr. 38-39; 6/14/19 Ltr. 1-2)
Similarly, personnel, information and documents were not shared in any material
These facts distinguish this case from the circumstances addressed by Judge Jed Rakoff in United States v. Gupta, 848 F.Supp.2d 491 (S.D.N.Y. 2012), and Judge Paul Gardephe in United States v. Martoma, 990 F.Supp.2d 458 (S.D.N.Y. 2014), upon which Defendants rely. In Gupta, the Government and the SEC jointly interviewed "no fewer than 44 witnesses," and an SEC attorney, "within a day or two after each interview, prepared memoranda that summarized what he felt were the relevant parts of the interviews." Gupta, 848 F.Supp.2d at 494. Here, the SEC and the Government both participated in only 16 of 60 interviews, and the SEC did not take notes during interviews and does not have any notes from the interviews. In Martoma, the issue was "whether the USAO's Brady and Giglio obligations extend[ed] to communications between the SEC and [counsel for two witnesses expected to testify at trial who allegedly supplied non-public information to Martoma] that are in the sole possession of the SEC." As an initial matter, there has been no suggestion or evidence presented to me that the SEC independently communicated with counsel for witnesses in this case as in Martoma. Indeed, the USAO arranged all but three of the 60 witness interviews. In addition, Judge Gardephe found that the USAO and SEC conducted a joint investigation because (1) "the SEC and the USAO jointly conducted twenty interviews of twelve witnesses" during the investigation of Martoma; (2) the SEC shared documents with the USAO, including all documents it received from SAC Capital, Martoma's employer; (3) "[t]he SEC and the USAO also coordinated their efforts in conducting depositions," and (4) the SEC provided the USAO with updates in the middle of and after the deposition of the founder and principal of SAC Capital. Martoma, 990 F.Supp.2d at 461. Here, the level of participation in interviews by the SEC, and coordination and sharing of information between the SEC and the Government does not rise to the level documented in Martoma and do not support a
The facts here do not support a finding that the Government and the SEC were conducting either a joint investigation or the type of joint fact-gathering sufficient to trigger the Government's Brady obligation. Even if the Government and the SEC were engaged in joint fact-finding in this case—and they were not—unlike in Gupta and Martoma, there is no evidence suggesting that the SEC is in sole possession of notes of witness interviews or communications with counsel for witnesses.
With regard to the Defendants' request for an order directing the Government to search the ESI of the Individuals for Brady/Rule 16 Material, the Government asserts that such a search was conducted at the time the Government searched the ESI for responsive documents. (See Govt. Opp. 22-25; 5/3/19 Tr. 61-64.) In light of this representation the issue to be determined is whether or not the Government must either go back and review the non-responsive ESI for Brady/Rule 16 Material or turn over the entire contents of the electronic devices and/or accounts of the Individuals.
The ESI encompassed within Defendants' request is limited. The complete contents of the electronic devices for Individual-1 and Individual-2 have already been produced to Defendants. (6/14/19 Ltr. 2.) With regard to the ESI from the devices of Individual-3, Individual-5, and Individual-6, the Government represented that it "is not in possession of materials belonging to [Individual-3] or [Individual-6] beyond those that have already been provided in discovery."
As an initial matter, as noted above, the Government already conducted a search for Brady/Rule 16 Material when it searched Individual-5's iCloud data for responsive documents. (See Govt. Opp. at 22-25; 5/3/19 Tr. at 61-64.) Based on this search, the Government asserts that it "has complied with its Brady obligations, and there is no basis for the defendants to demand that the Government essentially check the same materials again." (Govt. Opp. at 23.) I agree. Defendants have not articulated a sufficient reason to believe that the Government's efforts were deficient such that it has failed to meet its Brady obligations. Therefore, I find that the Government has met its Brady obligations with regard to Individual-5's iCloud data.
Even if the Government's search of Individual-5's iCloud data was an insufficient search for Brady material, Defendants' assertion that since the Government copied and/or imaged the entirety of the contents of the electronic devices of the Individuals, including the iCloud data of Individual-5, the Government is entitled to conduct another search of the non-responsive material
The parties do not dispute that Individual-5 has a privacy interest in his iCloud data, and that the Government obtained that data apparently through the use of a search warrant.
Defendants claim that the Government has not met its Brady obligation with regard to exculpatory statements made by two former staff members of Defendant Christopher Collins, and request an order directing the production of the interview notes and the FBI 302s. According to Defendants, the production of the notes and FBI 302s is necessary to enable them to understand "the nature, scope, and full context of the exculpatory statements." (Brady/Rule 16 Mem. 5-6.) Because the Government has met its Brady obligation with regard to the exculpatory statements in question, Defendants are not entitled to the production of the notes or FBI 302s at this stage of the case.
As an initial matter, Defendants do not claim that the Government failed to disclose the exculpatory statements. Indeed, Defendants concede that the Government "provided abbreviated descriptions `in substance and in part' of limited, unquestionably exculpatory statements by these two witnesses." (Id. at 5.) Defendants do not cite case law that supports their argument that the Government is required to produce primary materials containing exculpatory statements in order to meet its Brady obligation. This is not surprising because such disclosure is not legally required; rather, in order to meet its Brady obligation the Government need only disclose "the essential facts which
The Speech or Debate Clause of the United States Constitution provides that "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place." U.S. Const., art. I, § 6, cl. 1. "The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process." United States v. Gravel, 408 U.S. 606, 616, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). However, according to the Supreme Court, "the Speech or Debate Clause must be read broadly to effectuate its purpose of protecting the independence of the Legislative Branch, but no more than the statutes we apply, was its purpose to make Members of Congress super-citizens, immune from criminal responsibility." United States v. Brewster, 408 U.S. 501, 516, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972).
The Speech or Debate Clause provides testimonial immunity as well as immunity from criminal or civil liability for "legislative acts or the motivation for actual performance of legislative acts." Id. at 509, 92 S.Ct. 2531. The protection from prosecution or civil liability is derived from the freedom from questioning, the rationale being that "[r]evealing information as to a legislative act ... to a jury would subject a Member to being `questioned' in a place other than the House or Senate...." United States v. Helstoski, 442 U.S. 477, 490, 99 S.Ct. 2432, 61
The Speech or Debate Clause also prohibits the Government from charging legislative action as an offense or offering evidence of a member's legislative action against him. Myers, 635 F.2d at 937 (Under the Speech or Debate Clause, "[c]onduct that falls within the broad category of legislative action may not be charged as an offense ..., nor may evidence of a Member's legislative action be offered in evidence against him."). The protection also extends to things done by staff members of a Senator or Representative "which would have been legislative acts, and therefore privileged, if performed by [a Senator or Representative.]" Gravel, 408 U.S. at 616, 92 S.Ct. 2614.
The Supreme Court in Brewster discussed various acts that are not protected by the Speech or Debate Clause, stating that
Brewster, 408 U.S. at 512, 92 S.Ct. 2531; see also Gravel, 408 U.S. at 625, 92 S.Ct. 2614 ("That Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature. Members of Congress are constantly in touch with the Executive Branch of the Government and
Moreover, an indictment "is not subject to dismissal on the ground that there was `inadequate or incompetent' evidence before the grand jury." United States v. Myers, 635 F.2d 932, 941 (2d Cir. 1980); see also United States v. Williams, 644 F.2d 950, 952 (2d Cir. 1981); United States v. Murphy, 642 F.2d 699, 700 (2d Cir. 1980). In other words, the fact that a grand jury may have heard some evidence protected by the Speech or Debate Clause does not alone warrant dismissal of an indictment. Myers, 635 F. 2d at 941; see also United States v. Jefferson, 546 F.3d 300, 312 (4th Cir. 2008) ("a facially valid indictment is not subject to dismissal simply because the grand jury may have considered improper evidence, or because it was presented with information or evidence that may contravene a constitutional privilege."). Indeed, where a grand jury is presented with "significant and sufficient evidence unprotected by the Speech or Debate Clause" a judge need not review grand jury minutes that led to an indictment for protected material. See Murphy, 642 F.2d at 700.
Neither the Supreme Court nor the Second Circuit has addressed whether or not the Speech or Debate Clause protects a legislator from having to disclose materials covered by the Clause. Moreover, there is a split in the Circuits concerning whether or not the Speech or Debate Clause affords protection from the disclosure of protected materials. The Third and Ninth Circuits hold that the Speech or Debate Clause does not limit the Executive Branch's ability to compel disclosure of records that may include such materials. See In re Fattah, 802 F.3d 516, 529 (3d Cir. 2015) (holding that although "the Speech or Debate Clause prohibits hostile questioning regarding legislative acts in the form of testimony to a jury, it does not prohibit disclosure of Speech or Debate Clause privileged documents to the Government. Instead, as we have held before, it merely prohibits the evidentiary submission and use of those documents."); United States v. Renzi, 651 F.3d 1012, 1035-39 (9th Cir. 2011) (holding that the Speech or Debate Clause does not include the privilege from disclosure when disclosure is sought in the context of an investigation into otherwise unprotected activity). The D.C. Circuit, on the other hand, has held that the Clause precludes the compelled disclosure of privileged documents. See United States v. Rayburn House Office Bldg., 497 F.3d 654, 655 (D.C. Cir. 2007) ("the testimonial privilege under the [Speech or Debate] Clause extends to non-disclosure of written legislative materials."); Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421 (D.C. Cir. 1995) ("A party is no more entitled to compel congressional testimony—or production of documents—than it is to sue congressmen.") The D.C. Circuit in Rayburn noted that "a key purpose of the [Speech or Debate Clause] privilege is to prevent intrusions in the legislative process and that the legislative process is disrupted by the disclosure of legislative material, regardless of the use to which the disclosed materials are put.... The
Defendant Collins asserts that although he believes that the Speech or Debate Clause has been violated, his motion only seeks discovery "to assess the complete scope and severity of the government's abuses and the extent to which those infringements have tainted the evidence or indictment in this case." (Collins Speech/Debate Mem. 1.)
Defendant Collins has failed to (1) demonstrate that he is legally entitled to the discovery he seeks, (2) that the Speech or Debate Clause was violated by the Government in obtaining the Indictment or Superseding Indictment, or (3) that the Government—with the exception of materials related to the OCE investigation—intends to use documents or elicit testimony that implicate the Speech or Debate Clause. With regard to the OCE investigation, I find that the mere facts that Defendant Collins was the subject of an investigation by the OCE related to Innate and that he was interviewed in connection with that investigation are not themselves protected by the Speech or Debate Clause.
Defendant Collins primarily relies on the line of cases from the D.C. Circuit and a decision by Judge Gardephe to argue that the Speech or Debate Clause includes a non-disclosure privilege, and that the production of the requested discovery "is a necessary prerequisite for the Congressman to be put into a position in which he can effectively file substantive motions to suppress and to seek and obtain further relief sufficiently in advance of trial as required by this Court." (Collins Speech/Debate Mem. 22.) As an initial matter and as Judge Gardephe acknowledged, neither the Supreme Court nor the Second Circuit have found that the Speech or Debate Clause includes a non-disclosure
Here, as discussed further below, "the allegations in this case have nothing whatsoever to do with the [Defendant Collins's] legislative acts." (See Govt. Opp. at 31.) In connection with its investigation of Defendant Collins's alleged criminal conduct in his personal capacity, the Government obtained search warrants for the personal electronic devices and online accounts of, among others, certain current and former staff members of Defendant Collins. Unlike the cases cited by Defendant Collins, the searches at issue did not involve the Congressional offices and/or official accounts of current and/or former staffers, (5/10/19 Tr. 4), and the materials sought related to Defendant Collins's alleged criminal conduct and not legislative acts or the motivation for such acts.
Moreover, the facts in Rayburn were unique, and are not analogous to the facts presented in this case. In Rayburn, the search conducted was of the congressional office of Congressman William J. Jefferson, "a location where legislative materials were inevitably to be found," Rayburn, 497 F.3d at 661, and involved the search of the Congressman's documents for "non-legislative evidence," id. at 656. The D.C. Circuit, after finding that the protections afforded under the Speech or Debate Clause include a non-disclosure privilege, also found that the review procedures "outlined in the warrant affidavit would not have avoided the violation of the Speech or Debate Clause because they denied the Congressman any opportunity to identify and assert the privilege with respect to legislative materials before their compelled disclosure to Executive agents." Id. at 662. Here, in stark contrast, the searches did not involve congressional offices or official accounts but were of the personal electronic devices and accounts of certain current and/or former staff members of Defendant Collins. Defendant Collins is essentially requesting that I extend the non-disclosure privilege to the facts and circumstances presented here. I decline to do so. In addition, I find that even if the protections provided by the Speech or Debate Clause includes a non-disclosure privilege—an issue that neither the Supreme Court nor the Second Circuit has addressed—the procedures undertaken by the Government to identify and segregate any protected materials without involving the prosecution team were sufficient under the facts and circumstances presented here.
Defendant Collins is also not entitled to interview memoranda, notes of interviews, or grand jury minutes of his current and/or former staffers related to the Indictment. First, he has not made a showing that the memoranda, notes, or grand jury minutes are likely to contain protected material. As an initial matter, the elements of the charges contained in the Superseding Indictment do not require proof that Defendant Collins is a member of Congress
The law is clear in this Circuit that an indictment "is not subject to dismissal on the ground that there was `inadequate or incompetent' evidence before the grand jury." Myers, 635 F.2d at 941. Here, Defendant Collins concedes that the grand jury minutes and exhibits related to the Superseding Indictment do not contain anything protected by the Speech or Debate Clause. (8/26/19 Ltr. 3-4.) Therefore, Defendant Collins has no legal basis to challenge the Superseding Indictment or the grand jury process that led to its filing on the basis that the Speech or Debate Clause has been violated.
Defendant Collins claims that "the Government's Superseding Indictment maneuver is telling and troubling because it is a tacit admission that a violation occurred and it is a thin, eleventh-hour attempt to sidestep the consequences of that violation by suggesting that they did nothing wrong." (Id. at 5.) There is nothing "troubling" or nefarious about Government's decision to seek a Superseding Indictment. The desire to avoid pretrial litigation was a legitimate reason to seek to obtain the Superseding Indictment, particularly where such pretrial litigation might have included an interlocutory appeal to the Second Circuit, and thereby potentially a delay in the trial. In any event, I have reviewed the grand jury minutes and exhibits related to the return of the Indictment and find that the grand jury that returned the Indictment was presented with "significant and sufficient evidence unprotected by the Speech or Debate Clause." Murphy, 642 F.2d at 700. Contrary to Defendant Collins's assertion, no violation of the Speech or Debate Clause
Rule 16 of the Federal Rules of Criminal Procedure provides, in part, that the Government must permit a defendant to "inspect and copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items" in its "possession, custody, or control" if: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant." Fed. R. Crim. P. 16(a)(1)(E)(i-iii). Therefore, to the extent that the Government intends to offer any materials protected by the Speech or Debate Clause, it is required to produce those materials to Defendant Collins. The only documents Defendant Collins has identified in the Rule 16 discovery produced by the Government that he claims might be protected by the Speech or Debate Clause are (1) documents used and/or generated by the OCE in connection with its investigation of Defendant Collins, and (2) talking points produced by a current or former staff member that included the heading "Questions About Legislation that Might Affect Innate." (5/10/10 Tr. 22-23, 35.) These documents raise the following questions: (1) is the mere fact that Defendant Collins was under investigation by the OCE protected by the Speech or Debate Clause; (2) is the fact that Defendant Collins was interviewed in connection with the investigation by the OCE protected by the Speech or Debate Clause; (3) is the transcript of the interview of Defendant Collins by the OCE protected by the Speech or Debate Clause; (4) are the transcripts and documents from the OCE investigation of Defendant Collins protected by the Speech or Debate Clause; and (5) were any current or former staff members asked by the Government about whether any legislation that might affect Innate.
I find that the fact that Defendant Collins was the subject of an OCE investigation is not protected by the Speech or Debate Clause. The existence of the OCE investigation is not itself a legislative act, and the fact of the investigation is not "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Gravel, 408 U.S. at 625, 92 S.Ct. 2614. Similarly, I find that the fact that Defendant Collins was interviewed in connection with the investigation by the OCE also is not protected by the Speech or Debate Clause. Id. However, whether the transcript of the interview of Defendant Collins by the OCE, and the documents used in and transcripts generated during the OCE investigation of Defendant Collins are protected by the Speech or Debate Clause is a much closer question.
To the extent that the Government intends to offer the statement issued by one of Defendant Collins's staff to a reporter that "Neither Christopher Collins, [nor] his daughter ... have sold shares prior, during or after Innate's recent stock halt," and that "Cameron Collins has liquidated all his shares after the stock halt was lifted, suffering a substantial financial loss," (Ind. ¶ 42), I find that the statement is not protected by the Speech or Debate Clause.
Because I find that (1) the Government has complied with its Brady obligation as it relates to the carved out SEC materials, and (2) the Government and the SEC were not engaged in a joint investigation, I find that the Government has no Brady obligation as to any documents in the SEC's possession. With regard to materials from Individuals, I find that (1) the Government met its Brady obligation with regard to Brady/Rule 16 Material when it searched Individual-5's iCloud data for responsive documents, and (2) Defendants have provided an insufficient justification for their argument that the Government is obligated to search Individual-5's iCloud data over Individual-5's objection. Finally, I
In addition, I find that Defendant Christopher Collins is not legally entitled to the discovery he asserts bears on the privilege established by the Speech or Debate Clause, and so his motion to compel limited production of those materials is DENIED. However, within my inherent authority as a district judge, I preclude the Government from introducing at trial (1) Defendant Collins's OCE interview, (2) transcripts generated during the OCE investigation; (3) documents used during the OCE investigation; and (4) testimony concerning the "effect" of legislation—to the extent any such legislation was being considered—on Innate.
SO ORDERED.
In addition to the reasons stated above, my previous ruling that the Government does not have the right to search non-responsive materials gathered pursuant to the search warrants issued for the electronic devices and/or accounts of the Individuals, (supra Part III.A.2.b.), also applies to non-responsive materials gathered from the devices and accounts of current and former staffers of Defendant Collins.