U.S. v. Mazzola

• Decision Date: 26 November 2001
• Docket Number: No. CRIM. 01-10012-RGS.,CRIM. 01-10012-RGS.
• Citation: 183 F.Supp.2d 195
• Parties: UNITED STATES of America v. Stephen J. MAZZOLA Christina Svendsen Sebastian Mazzola James S. Konaxis Anthony D. Marek, and Frank V. Messina, Jr.
• Court: U.S. District Court — District of Massachusetts

183 F.Supp.2d 195

UNITED STATES of America v. Stephen J. MAZZOLA Christina Svendsen Sebastian Mazzola James S. Konaxis Anthony D. Marek, and Frank V. Messina, Jr.

No. CRIM. 01-10012-RGS.

United States District Court, D. Massachusetts.

November 26, 2001.

Victor A. Wild, United States Attorney's Office, Boston, MA, for Plaintiff.

Edward R. Gargiulo, Gargiulo, Rudnick & Gargiulo, Thomas J. Butters, Butters, Brazilian & Small, L.L.P., Gary C. Crossen, Foley, Hoag & Eliot, Daniel J. O'Connell, III, O'Connell & Pollenz, Walter H. Underhill, Martin Boudreau, Milton, Walter H. Underhill, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON PRETRIAL MOTIONS

BOWLER, United States Magistrate Judge.

Pending before this court is: (1) a motion under Rule 6(e), Fed.R.Crim.P., filed by defendants Anthony D. Marek and James S. Konaxis (Docket Entry # 64) and, through an Endorsed Order, joined in by defendant Frank V. Messina, Jr.; and (2) a motion for discovery filed by defendant Stephen Mazzola (Docket Entry # 61) and, through endorsed orders, joined in by various co-defendants. The government opposes the motions. (Docket Entry ## 71 & 72). Having reviewed the filings, a decision can be rendered on the papers.

I. OMNIBUS RULE 6(E) MOTION OF DEFENDANTS ANTHONY D. MAREK AND JAMES S. KONAXIS (DOCKET ENTRY # 64)

Defendants Marek, Konaxis and Messina ("defendants") move for disclosure of the following grand jury material: (1) copies of any material used to prepare for or as evidence before the grand jury "which materials were disclosed ... to persons not directly in the employ of the United States Government" as well as to entities not regular divisions of the United States government; (2) the names, addresses and titles of all such persons and entities; (3) copies of the grand jury testimony of such persons and entities and identification of the materials the persons or entities used in testifying; and (4) copies of the grand jury testimony of any person in the regular employ of the United States government who relied on the advice or assistance of the persons who were not directly in the employ of the United States government or of the representatives of the entities that were not regular divisions of the United States government.¹ Defendants also move: (1) for an order allowing them to conduct discovery upon any unforeseen need arising as a result of the disclosures of the aforementioned grand jury material; (2) for a hearing on the motion; and (3) a hearing on the issue of whether the government violated the secrecy provisions of Rule 6(e) ("Rule 6(e)"), Fed.R.Crim.P. (Docket Entry # 64).

The latter three items are DENIED. The request to conduct future unforeseen discovery is premature. In the event this court or the district judge allows disclosure of grand jury material in the future and such disclosure leads to unforseen discovery, defendants may seek discovery by filing a motion at that time. A hearing on this motion is not necessary inasmuch as the motion, the supporting memorandum and the government's opposition are all well briefed. A hearing on whether the government violated Rule 6(e) is also not necessary at this point in time.

As to the former matters, defendants seek access "to matters occurring before the grand jury" within the meaning of Rule 6(e)(2). Rule (6)(e), which "codifies the long-standing policy of secrecy provided grand jury proceedings," United States v. Tager, 638 F.2d 167, 168 (10th Cir.1980), sets forth six exceptions to the general rule of secrecy.² In Re Grand Jury Proceedings, 158 F.Supp.2d 96, 100 (D.Mass. 2001). For reasons stated below, defendants fail to sufficiently establish either a particularized need or that the exception embodied in Rule 6(e)(3)(C)(ii) justifies their discovery of the grand jury material.³

During the investigation leading to the indictment for the conspiracy to defraud the Internal Revenue Service, the government requested and in April 1998 obtained a court order authorizing the disclosure of grand jury documents and information to investigators and data analysts of the Insurance Fraud Bureau of Massachusetts ("IFB"). The IFB is a quasi-governmental agency created by statute to prevent and investigate fraudulent insurance transactions and composed of two voluntary private associations of insurance carriers. See United States v. Pimental, 199 F.R.D. 28, 29-30 (D.Mass.2001) (describing make up and functions of the IFB); accord In Re Grand Jury Proceedings, 158 F.Supp.2d at 98-99 (same); Commonwealth v. Ellis, 429 Mass. 362, 708 N.E.2d 644, 646-647 (1999) (same); see In Re Justices of the Superior Court, 218 F.3d 11, 13 (1st Cir.2000) (referring to IFB as "quasi-governmental entity"); United States v. Pimental, 201 F.R.D. 24, 26 (D.Mass.2001) (recognizing that federal government did not fund IFB).

The government requested court authorization to disclose the material pursuant to the exception set forth in Rule 6(e)(3)(A)(ii). This exception allows disclosure of matters occurring before the grand jury to "government personnel (including personnel of a state or subdivision of a state) as are deemed necessary by an attorney for the government to assist" the attorney in performing his "duty to enforce criminal law."⁴ Rule 6(e)(3)(A)(ii), Fed.R.Crim.P.

The court allowed the request for disclosure in April 1998 and signed the government prepared, form order. Although such Rule 6(e)(3)(A)(ii) requests had been allowed by various district judges in this circuit, In Re Grand Jury Proceedings, 158 F.Supp.2d at 97 n. 1, the rule is self executing. In Re Grand Jury Proceedings, 158 F.Supp.2d at 100-101 (rejecting government's position that rule requires court authorization and viewing government's attempt to obtain such authorization as attempt "to acquire `a little cover'"); accord United States v. Pimental, 199 F.R.D. at 32 n. 8 (rule is self executing and government's attempt to secure approval is "looking for a little `cover'"); see United States v. Sells, Engineering, Inc., 463 U.S. 418, 426, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983) (Rule 6(e)(3)(A), which includes subparagraph (ii), authorizes disclosure "as a matter of course, without any court order"). Contrary to certain case law at the time, see United States v. Pimental, 199 F.R.D. at 35 (setting forth relevant case law which predated the April 1998 order that similar state insurance investigators were not "government personnel" under Rule 6(e)(3)(A)(ii)),⁵ the form order prepared by the government and signed by the district judge states that the IFB investigators and data analysts "act as government personnel within the meaning of Rule 6(e)(3)(A)(ii)." (Docket Entry # 64, Ex. B).

"A defendant's effort to obtain grand jury materials can only succeed with a showing of `particularized need.'" United States v. Burke, 856 F.2d 1492, 1496 (11th Cir.1988) (affirming lower court's rejection of argument that government misconduct during investigative and grand jury stages, including flagrant Rule 6(e) violations by government of grand jury secrecy rule, warranted grand jury disclosure); see Douglas Oil Company v. Petrol Stops Northwest, 441 U.S. 211, 221-222, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); United States v. Procter & Gamble Company, 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). Even where such a particularized need is shown, access to grand jury material must be "`discreet and limited'" and "`structured to cover only the material need.'" United States v. Liuzzo, 739 F.2d 541, 545 (11th Cir.1984) (quoting Procter & Gamble, 356 U.S. at 683, 78 S.Ct. 983, with internal brackets omitted, and Douglas Oil, 441 U.S. at 222, 99 S.Ct. 1667).

Particularized need is lacking as to the request for documents and evidence shown to the grand jury inasmuch as the government represents that since the indictment and except for Jencks Act material, "the Government has disclosed all materials, necessarily including Grand Jury materials, to the defendants." (Docket Entry # 71). Moreover, such material more than likely constitutes business records and documents independent of the grand jury investigation. See United States v. Pimental, 199 F.R.D. at 36 n. 14 (quoting Church of Scientology International v. United States Department of Justice, 30 F.3d 224, 235 (1st Cir.1994)).⁶

Considerations justifying secrecy are even stronger with respect to defendants' request for grand jury testimony. See generally Douglas Oil Company of California v. Petrol Stops Northwest, 441 U.S. at 223, 99 S.Ct. 1667 (as "considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification"). Such testimony of non-government witnesses⁷ lies at the heart of a grand jury proceeding. Even after return of the indictment and discharge of the grand jury, disclosing the testimony of a grand jury witness discourages free and untrammeled disclosures by future grand jury witnesses and increases their legitimate fear of witness tampering. See Douglas Oil Company of California v. Petrol Stops Northwest, 441 U.S. at 222, 99 S.Ct. 1667.

Furthermore, defendants' need for the material to support a motion to dismiss does not outweigh the need for the grand jury proceedings to remain secret. Defendants fail to make a preliminary factual showing of serious government misconduct "sufficient to give rise to a motion to dismiss." United States v. DeGroote, 122 F.R.D. 131, 136 (W.D.N.Y.1988) (denying the defendant's motion to discover grand jury material inasmuch as he "made no `preliminary factual showing of serious misconduct'"). Even assuming that the government disclosed grand jury material to the four identified IFB officials and that these individuals participated in the grand jury proceedings, there is no indication that the IFB officials used the grand jury material to pursue civil proceedings of insurance fraud. See generally United States v. Sells Engineering, Inc., 463...