Case 3:10-cr-00232-FAB Document 509

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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 (Docket whether No. anyone 29) by violated the Courts

Protective

Order

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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Criminal No. 10-232(FAB) filed a reply on the same date, alleging that

2 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. (emphasis added). (Docket No. 499)

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. 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, direct appeal (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 (Docket

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Criminal No. 10-232(FAB) for no other purpose if the whatsoever. discovery (Docket or No. its 29 at

3 2.) are

Additionally,

material

contents

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 Id. At 4. sanctions or contempt for

violation of this Order.

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. at 4.) (Docket No. 494

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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Criminal No. 10-232(FAB)

that he has seen the document that was in the possession of Senator Rivera-Schatz and from which he read on the Senate floor. Because the FBI document has undisputably been Id. 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. 2. Senator Thomas Rivera-Schatz Senator Roberto Arango

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Criminal No. 10-232(FAB) 3. 4. Richard Roark1 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. BESOSA United States District Judge

Mr. Roark appeared at a chambers conference on December 21, 2010 at which only attorneys were to be present. The minutes of that 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 Martinez 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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