55 F.3d 58 (2nd Cir. 1995), 599, United States v. Wolfson

Docket Nº:599, Docket 94-1158.
Citation:55 F.3d 58
Party Name:UNITED STATES of America, Appellee, v. Louis E. WOLFSON, Defendant-Appellant.
Case Date:May 10, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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55 F.3d 58 (2nd Cir. 1995)

UNITED STATES of America, Appellee,


Louis E. WOLFSON, Defendant-Appellant.

No. 599, Docket 94-1158.

United States Court of Appeals, Second Circuit

May 10, 1995

Argued Jan. 10, 1995.

Donald E. Clark, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., S.D.N.Y. and Guy Petrillo, Asst. U.S. Atty., on the brief), for appellee.

David G. Leitch, Washington, DC (Gregory G. Garre, Hogan & Hartson, Washington, DC, Ira G. Greenberg, Edwards & Angell, New York City, on the brief), for defendant-appellant.

Before: KEARSE, McLAUGHLIN, and PARKER, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Louis E. Wolfson appeals from an order of the United States District Court for the Southern District of New York, John F. Keenan, Judge, denying his motion for disclosure of documents that had been sealed and retained in a court vault for purposes of appellate review during Wolfson's criminal trial in 1967. The district court ruled that Wolfson failed to show any changed circumstance

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sufficient to warrant the unsealing of the documents. On appeal, Wolfson argues principally that the district court erred in placing on him the burden to show such a change in circumstances, rather than requiring the government to prove that the circumstances warranted continued nondisclosure. We disagree and affirm the denial of the motion.


The material facts are not in dispute. In 1967, Wolfson was tried, along with a codefendant, on a charge of violating Sec. 5 of the Securities Act of 1933, 15 U.S.C. Sec. 77e(a), by selling a large quantity of stock of an issuer Wolfson controlled, for which no registration statement had been filed. Wolfson's primary defense was that he had not known of the registration requirements. One of the witnesses against him was his broker, John J. Morely, who testified that he had explained the registration requirements to Wolfson.

In order to attack Morely's credibility, Wolfson sought disclosure of earlier testimony by Morely before the Securities and Exchange Commission ("SEC"), along with the notes made by SEC investigators and an Assistant United States Attorney during interviews with Morely (collectively the "Morely documents"). Wolfson contended that the testimony and notes were discoverable under both the Jencks Act, 18 U.S.C. Sec. 3500, and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The government provided Wolfson with a redacted copy of Morley's SEC testimony, omitting testimony that related to a separate indictment against Wolfson, and it refused to turn over the requested notes. The government marked the unproduced documents for identification and submitted them to the trial court, Edmund L. Palmieri, Judge, for review in camera.

After conducting its in camera review, the trial court ruled that, with the exception of one page of the SEC testimony, the government was not required to disclose any of the material Wolfson had requested. Judge Palmieri ordered that the documents be sealed by the clerk of the court for possible review by the Court of Appeals. The pertinent docket entry begins...

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