U.S. v. Doe

• Decision Date: 09 August 1995
• Docket Number: No. 95-8010,95-8010
• Citation: 63 F.3d 121
• Parties: UNITED STATES of America, Appellee, v. John DOE, Defendant-Appellant, James Roe, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

Page 121

63 F.3d 121

UNITED STATES of America, Appellee, v. John DOE, Defendant-Appellant James Roe, Defendant.

No. 95-8010.

United States Court of Appeals Second Circuit.

Aug. 9, 1995.

Before: VAN GRAAFEILAND, WALKER, and CABRANES, Circuit Judges.

WALKER, Circuit Judge:

Defendant John Doe ("Doe") appeals from a judgment of conviction following a jury trial in the Southern District of New York. Doe was convicted on all counts of the indictment and was sentenced to a lengthy prison term.

On appeal, Doe attacks both his conviction and sentence. First, he contends that the district court erred in failing to determine, after an evidentiary hearing, whether the government breached its cooperation agreement with him and whether he was thereby entitled to dismissal of the indictment. Second, he argues that the district court misapplied the law in denying his pretrial motions for closure of preliminary proceedings and the trial. Doe sought closure out of fear of retribution from his criminal associates for his work as a confidential government informant. Doe contends that the district court's decision impaired his constitutional right to defend against the charges since he could not raise his public authority defense without jeopardizing his safety and that of his family. Third, Doe argues that, if the conviction is upheld, the district court erred in not adjusting his offense level downward for acceptance of responsibility.

BACKGROUND

A full opinion in this case was filed under seal. Because of the defendant's interest in confidentiality, any references which would serve to identify the defendant have been expunged from this published version of the opinion. Our description of the facts is therefore necessarily terse.

Defendant John Doe was arrested after he participated in a controlled criminal transaction under government surveillance. Before trial, Doe moved to close pretrial hearings and seal motion papers, and subsequently moved to close the trial. Doe, who had infiltrated an international criminal syndicate as a government informant, alleged that he feared retaliation against himself and his family if his informant activities were revealed.

After the district court decided to hold open pretrial hearings, Doe withdrew his motion to suppress statements given to federal agents. At trial, Doe rested without presenting any evidence and was convicted.

Doe detailed his activities as an informant in a sealed affidavit that he submitted to support his pretrial motion to seal papers and close pretrial hearings. According to the affidavit, Doe voluntarily contacted federal law enforcement authorities about a year before his arrest. He spoke to Agent David Smith and volunteered that he had information about an organization that laundered millions of dollars per week in criminal proceeds. Doe, an illegal alien, told Agent Smith that he was coming forward because he needed help with immigration problems and also hoped to become a federal agent. Agent Smith convinced him instead to become a confidential informant. They agreed that Doe would take part in the money-laundering activities of the organization and would be allowed to keep any money the organization paid him. Agent Smith assured Doe that doing so would not be a crime since he would be working for the government.

Over the next few months Doe contacted Agent Smith or another federal agent every day or two with information on the syndicate. He provided the agents with names, telephone and beeper numbers, and photographs of the members of the organization. Doe and Agent Smith also taped conversations Doe had with some of those persons. At some point during that period, Doe signed what he understood, through his interpreter, to be a cooperation agreement with the agents. In return, he received a stipend and a promise of payment of one to three percent of any money seized from the laundering operation.

Later that year, Doe told Agent Smith that he had information about other criminal activities of the organization. The agent urged him to collect whatever information he could but warned him to avoid as much as possible participating in the other criminal activities. According to the affidavit, Agent Smith nonetheless agreed that Doe would have to "do some work" so that he could gather good information.

Doe informed Agent Smith every time his "bosses" in the organization ordered him to participate in a criminal transaction. Unable to decline their invitations without arousing suspicion, Doe participated in one such transaction, but turned the contraband over to Agent Smith. Doe fabricated a story about the fate of the contraband, and was interrogated at length by his suspicious bosses. The bosses came to believe that the persons they sent to retrieve the contraband had stolen it. In all, more than ten persons were killed in retribution, and the bosses were hunting for yet another man suspected of involvement in the caper. Doe told Agent Smith about all of these killings.

Agent Smith then instructed Doe to, in Doe's words, "work only with money and limit [his other] work to the collection of information." Doe requested that his bosses assign him only money-laundering tasks, but his bosses told him that he would have to do at least some more dangerous and less desirable assignments.

At one point, Doe informed Agent Smith about a killing in another country. Two law-enforcement agents from that country then came to New York and questioned Doe about what he knew. On two other occasions, Doe alerted Agent Smith to imminent criminal transactions.

Some time later Doe participated in the transaction that formed the basis of his conviction. According to his affidavit, Doe paged Agent Smith, inserting the code "911" to signal him to respond immediately since Doe was in the middle of criminal activity. Shortly thereafter, the federal agents arrived and arrested Doe. When he was alone with the agents, Doe advised them that he was an informant. One agent asked him whether he was the person who worked with Agent Smith. Doe replied that he would speak only to Agent Smith. When one agent identified himself as Agent Smith's supervisor, Doe told him that he had paged Agent Smith about the transaction before the agents arrived. The agents contacted Agent Smith, who confirmed Doe's earlier communication.

Following his arrest and indictment, Doe, his attorneys, and his family abroad received In a sealed opinion and order the district court, while noting that Doe's "perceived danger to his family causes concern," denied the motion to seal the papers and close pretrial hearings. The district court apparently did not request a response to Doe's affidavit from the government and did not hold a hearing on any fact issues raised in the affidavit. In denying the motion, the district court reasoned that Doe's past cooperation would "inevitably be made public at his trial," which would itself be public given the government's refusal to consent to a trial in camera and without a jury. In the district court's view, disclosure of Doe's status as a confidential informant "sooner than if it [were] revealed for the first time at trial" did "not constitute 'an overriding interest that is likely to be prejudiced.' " While denying Doe's motion, the district court did order the following safeguards:

repeated requests from unidentified persons for copies of motion papers, tapes, and discovery items received from the government. To avoid disclosing his informant activities, Doe instructed his attorneys to draft sanitized versions of the motions with all mention of his informant activities expunged so that he could send them to his family for distribution.

(1) [Codefendant] and his lawyer are directed not to communicate with anyone concerning the contents of the [Doe] motion papers without first informing the Court of the proposed communication.

(2) The Government is directed immediately to inform the Bureau of Prisons and the United States Marshal Service of the possible danger to [Doe], and that [Doe] be kept safe and segregated from the general prison population while in custody.

(3) [Doe], under Government monitoring and in the presence of his lawyer, may call his family ..., at Government expense, to advise them of the possible danger to themselves, so that they may take appropriate steps to safeguard themselves.

At a scheduling conference held on the same day, Doe informed the district court that, in light of its decision, he would withdraw his motion for severance and forego his public authority defense rather than risk exposure of his informant status. At a conference held five days later, Doe sought a stay of the hearings so that he could file an interlocutory appeal of the district court's order to minimize the possibility that he or his family would be "murdered" in retribution for his informant activities. ¹ The district court rebuked Doe's counsel for intimating on the record that specific death threats had been uttered indicating a likelihood of murder. The district court noted that it had "directed specifically that the government take extreme and very careful steps to insure [Doe's] protection," and that the federal prison system was adept at keeping cooperating witnesses secure. The district judge added, "I indicated in my decision, which is sealed, that I to a degree shared your concern [about safety]," and "I don't minimize ... [Doe's] welfare, and I certainly don't minimize his family's welfare." Nonetheless, the district judge concluded, "I set forth the only appropriate steps available to me in accord with a public trial that I was aware of that could be taken."

After Doe's codefendant pled guilty, thereby removing the risk that the codefendant would divulge Doe's testimony to the syndicate, Doe decided that he could safely raise his public authority defense if the trial were closed. Doe then moved that the trial be closed for the presentation of that defense...