United States v. Bulger

• Decision Date: 17 July 2012
• Docket Number: Criminal No. 99-10371-RGS
• Parties: UNITED STATES OF AMERICA v. JAMES J. BULGER
• Court: U.S. District Court — District of Massachusetts

UNITED STATES OF AMERICA

v.JAMES J. BULGER

Criminal No. 99-10371-RGS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

July 17, 2012

MEMORANDUM AND ORDER RE:

DEFENDANT'S MOTION TO LIFT THE PROTECTIVE ORDER

(DOCKET ENTRY # 667); DEFENDANT'S REVISED

MOTION TO LIFT THE PROTECTIVE ORDER (DOCKET

ENTRY # 681); MOTION OF GLOBE NEWSPAPER

COMPANY TO VACATE PROTECTIVE ORDER

(DOCKET ENTRY # 675)

BOWLER, U.S.M.J.

Pending before this court are the above styled motions seeking to lift or amend a protective order issued by this court on August 9, 2011. (Docket Entry # 625). The protective order restricted disclosure of all discovery material exchanged between the United States Government ("the government") and defendant James J. Bulger ("defendant") in this widely publicized criminal prosecution. After hearing oral argument on July 6, 2012, this court took the motions (Docket Entry ## 667, 675 & 681) under advisement.

BACKGROUND

The history of this criminal prosecution is well known and need not be repeated at length. The Third Superceding Indictment charges defendant inter alia with a racketeering conspiracy that includes predicate acts of murders; racketeering; an extortionconspiracy; extortion; a narcotics distribution conspiracy; a money laundering conspiracy; money laundering; possession of firearms and possession of machine guns each in furtherance of a violent crime; possession of unregistered machine guns; transfer and possession of machine guns; and possession of firearms with obliterated serial numbers. (Docket Entry # 215). This case also includes an apparent leak of confidential information to the press "by the FBI and other law enforcement agents," as represented by defendant in a June 2011 motion (Docket Entry # 609), and leaks by law enforcement personnel no longer associated with this prosecution, see, e.g., Litif v. United States, 670 F.3d 39, 47 (1st Cir. 2012) (noting in related case "there was a pattern of FBI leaks of informants to Bulger and Flemmi"). Likewise, by affidavit dated June 28, 2011, the United States Attorney for the District of Massachusetts expressed her "grave concern regarding information being reported to the media" and the need to take measures to prevent the release of information "prior to its introduction in court." (Docket Entry # 614).

Consequently, on August 8, 2011, the government filed a motion for a protective order under Rule 16(d)(1), Fed. R. Crim. P. ("Rule 16(d)"), to guard against prejudicial pretrial publicity affecting the "defendant's and the government's rights to a fair trial." (Docket Entry # 624). Defendant assented to the entry of the protective order attached to the motion. In themotion, the government represented that the discovery materials contained "highly sensitive documents" including "grand jury transcripts, FBI informant reports known as FD-209s, internal government memoranda, and extensive Title III materials." (Docket Entry # 624).

Without making an express finding of good cause, this court entered the proposed protective order on August 9, 2011. Once in place, the protective order facilitated the disclosure by the government to defendant of a multitude of discovery materials.¹ By its terms, the protective order applied to "any discovery materials" but did "not apply to any such materials which are already in the public record." (Docket Entry # 625). It reads as follows:

As to any discovery materials produced by the government to the defendant during the discovery process in this case, defense counsel may question or confront potential witnesses about matters or information contained in the discovery materials produced by the government and may disclose such materials and their contents to the defendant and to those members of defense counsel's staff who are necessary to assist counsel in this case. The discovery materials and information they contain shall be used solely for the purpose of litigating matters in this case and shall not be divulged to any other person.

This Order does not apply to any such materials which are already in the public record.

(Docket Entry # 625).

With the protective order in place, the government'sdisclosure and production of discovery material proceeded relatively smoothly given the breadth and volume of the material. Compliance with the protective order, however, proved difficult for defense counsel because the order did not apply to discovery material "already in the public record" (Docket Entry # 625). As a result, the order prevented defense counsel from filing relevant discovery material as an exhibit or referring to such discovery in a motion or legal memorandum unless defense counsel filed the exhibit or reference under seal or, alternatively, undertook a burdensome and time consuming task of cross referencing discovery materials in related cases to determine if the material at issue was in the public record.

This aspect of the protective order thus impeded defense counsel's ability to promptly prepare timely pleadings and other filings, according to defendant. Defendant also submits that because of prior trials, Congressional hearings and books involving this prosecution and related civil and criminal proceedings, defense counsel "cannot identify anything confidential left in this discovery" and "there are no medical records, no privileged material, and no documents implicating national security concerns."² (Docket Entry # 667). Defense counsel additionally contends that the protective order hampershis ability to speak about and discuss strategies with members of the bar and ordinary citizens comparable to prospective jurors. (Docket Entry # 667).

Accordingly, on May 24, 2012, defendant filed the motion to lift the protective order and one month later a revised motion to lift the protective order. Defendant seeks relief under Rule 16(d)(1) (Docket Entry # 667, pp. 1 & 3) but also supports the First Amendment argument made by the Globe Newspaper Company, Inc. ("the Globe").³ (Docket Entry # 681, n. 2). Although based upon Rule 16(d), defendant asserts that the protective order impairs defense counsel's ability to prepare for trial in violation of defendant's constitutional "right to due process, right to prepare and present a defense, right to the effective assistance of counsel, and right to public criminal proceedings under the Fifth and Sixth Amendments." (Docket Entry # 667). In the revised motion to lift the protective order, defendant moves to lift the protective order but stay the date of such action for two weeks to allow the government to identify the documents by Bates numbers that warrant continued protection. (Docket Entry # 681).

The Globe seeks to lift the protective order in its entirety as a violation of the First Amendment. First, the Globe arguesthat the protective order fails to comply with the standards adopted in a 2002 First Circuit case, In re Providence Journal Company, 293 F.3d 1 (1st Cir. 2002), because it requires the "automatic sealing of court filings" without judicial review or review on a document by document basis. (Docket Entry # 676). According to the Globe, the order therefore limits public access to presumptively public court filings in violation of the First Amendment and requires defendant to bear the burden of showing that the information is already in the public record.⁴ Second, the Globe contends that the protective order is an overly broad restriction of defendant's First Amendment right to speak and the public's First Amendment right to receive information. The Globe also points out, correctly, that the protective order does not limit itself to certain categories of protected documents.

The government, in turn, objects to lifting the protective order. (Docket Entry # 678). Contrary to defendant, the government submits that the discovery material "included sensitive informant information containing raw data that might identify the informant as well as smear the reputation of numerous individuals who have never been charged with a crime."(Docket Entry # 678). The protective order thus shields the categories of "grand jury information, Title III materials, informant files," privacy rights of third parties, "Giglio material,"⁵ and medical records from public disclosure prior to trial, according to the government.⁶ (Docket Entry ## 678 & 694).

In response to the Globe's arguments based on the Providence Journal case and the First Amendment, the government proposes to amend the protective order to include language specifically addressing documents filed as exhibits to court filings.⁷ The proposed language reads as follows:

The protective order dated August 9, 2011 remains in effect and includes the following modifications:

(1) Defendant, through counsel, may file motions in thiscase that refer to the discovery produced to date without quoting the actual discovery materials. The defendant shall submit under seal any documents that are appended to the pleading as exhibits. All such exhibits will be temporarily sealed for seven business days in order to provide the government sufficient time to review and object to any unsealing of the defendant's exhibits. If the government does not object after seven business days, all such exhibits will be unsealed. If the government does object, it shall do so in writing under seal within seven business days and the Court will resolve any such objections.

(Docket Entry # 672-1). The government also submits that it relied on the protective order in disclosing sensitive discovery material.

DISCUSSION

Federal courts ordinarily address nonconstitutional grounds for a decision prior to reaching a constitutional ground. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981) ("prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision"). Accordingly, this court initially turns to the inquiry of "good cause" under Rule 16(d).⁸ See Gulf Oil Co., 452 U.S. at 99 (considering "authority of district...