United States v. Trombetta
| Decision Date | 16 November 2015 |
| Docket Number | Criminal No. 13-227-01 |
| Court | U.S. District Court — Western District of Pennsylvania |
| Parties | UNITED STATES OF AMERICA, v. NICHOLAS TROMBETTA, Defendant |
Defendant Nicholas Trombetta ("defendant") is accused, in an eleven-count indictment, of committing mail fraud, theft or bribery concerning a program receiving federal funds, filing a false tax return, and conspiracy to commit tax fraud. (ECF No. 4.) Defendant filed a motion to dismiss the indictment or suppress evidence based upon the government's alleged intrusion into his attorney-client relationships with four different attorneys (hereinafter "Defendant's Motion"). (ECF Nos. 68, 70, 83 at 5-7.) The court bifurcated the proceedings concerning Defendant's Motion, with the first phase focusing on the existence and scope of defendant's purported personal attorney-client relationships with each of the attorneys whose conversations he claimed were wrongfully recorded by the government. (ECF No. 165 ¶¶ FOF 70-85, ¶¶ COL 29-34, 66-72.) In an opinion issued on July 20, 2015, the court found that defendant established a personal attorney-client relationship with only one of the four attorneys at issue, attorney Timothy Barry ("Barry"). (ECF No. 165 at 1 n.1, ¶¶ COL 49-62.)1
Having defined the scope of defendant's personal attorney-client relationships, the proceedings on Defendant's Motion advanced to the second phase, during which the three elements of defendant's governmental misconduct claim, i.e., objective awareness of the attorney-client relationship, deliberate intrusion into the attorney-client relationship, and actual and substantial prejudice, would be considered. (Id. ¶ COL 83.) After the court scheduled an evidentiary hearing focusing on the actual and substantial prejudice prong of defendant's governmental misconduct claim, the government moved for a ruling that the hearing is not warranted, based upon this court's July 20, 2015 opinion and the undisputed record. (ECF No. 168, hereinafter the "Government's Motion".) Because there are no material facts in dispute with respect to defendant's ability to demonstrate actual and substantial prejudice, the government is correct that a further evidentiary hearing is unnecessary. The Government's Motion must be granted, and Defendant's Motion must be denied.
When governmental misconduct is found to violate a defendant's due process rights, the indictment must be dismissed if the government conduct renders "the prosecution of the defendant fundamentally unfair." United States v. Lakhani, 480 F.3d 171, 181 (3d Cir. 2007). This claim is reserved for only the most intolerable, shocking, outrageous, and egregious governmental misconduct; that which violates "that fundamental fairness, shocking to the universal sense of justice mandated by the Due Process Clause." United States v. Voigt, 89 F.3d 1050, 1065 (3d Cir. 1996); see United States v. Hoffecker, 530 F.3d 137, 154 (3d Cir. 2008) (); United States v. Nolan-Cooper, 155 F.3d 221, 231 (3d Cir. 1998) (). As evidence of the exceptionality of this claim, the Court of Appeals for the Third Circuit has not sustained a due process challenge based upon governmental misconduct since 1978. United States v. Twigg, 588 F.2d 373 (3d Cir. 1978); see United States v. Tolentino, 486 F.App'x 286, 288-89 (3d Cir. 2012); United States v. Fortuna, No. 12-636, 2013 WL 1737215, at *7-8 (D.N.J. Apr. 22, 2013).
Even where there is not a due process violation, a court may fashion a remedy for governmental misconduct from its supervisory power. United States v. Nieves, No. 97-46, 1997 WL 447992, at *6 (E.D. Pa. July 24, 1997) (). One purpose of the court's supervisory power is "to secure enforcement of 'better prosecutorial practice and reprimand of those who fail to observe it.'" Nieves, 1997 WL 447992, at *6 (citing United States v. Osorio, 929 F.2d 753, 763 (1st Cir. 1991)).
A governmental misconduct claim can be based upon allegations that the prosecutors, or their investigative agents, intruded into or violated a defendant's attorney-client relationship during the investigation of a case. A defendant is entitled to relief based upon the government's intrusion into his attorney-client relationship if he demonstrates: (1) the government's objective awareness of an ongoing, personal attorney-client relationship; (2) deliberate intrusion into that relationship; and (3) actual and substantial prejudice. Voigt, 89 F.3d at 1067; Hoffecker, 530 F.3d at 154; Nieves, 1997 WL 447992, at *5.
The burdens of both production and persuasion fall on defendant. Voigt, 89 F.3d at 1067, 1070.
An affirmative showing of prejudice is essential to prevailing on any governmental misconduct claim. In United States v. Voigt, the Court of Appeals for the Third Circuit rejected the argument that intrusion into the attorney-client relationship, standing alone, is per se prejudicial, and instead held that "a claim of outrageous government conduct premised upon deliberate intrusion into the attorney-client relationship will be cognizable where the defendant can point to actual and substantial prejudice." Voigt, 89 F.3d at 1066, 1070-71. Even where governmental misconduct is proven to be deliberate, defendant must nevertheless demonstrate prejudice to obtain a remedy. Id. at 1071 n.9 ().
It is the defendant's duty to "demonstrate that he suffered [] ill effects flowing from the government's allegedly improper investigative activity." Voigt, 89 F.3d at 1070. Voigt leaves no doubt that a defendant's failure to make an affirmative and specific showing of actual and substantial prejudice is fatal to his governmental misconduct motion. Id. at 1066, 1070-71. Defendant recognizes that Voigt sets forth the legal standards pertinent to his motion to dismiss or suppress. (ECF No. 171 at 5.)
Prejudice may manifest itself in a number of ways, including the government's use of evidence gained by intercepting privileged communications, destruction of the attorney-client relationship, or other actions designed to give the government an unfair advantage at trial. United States v. Marshank, 777 F.Supp. 1507, 1521 (N.D. Cal. 1977). The actual and substantial prejudice requirement, however, does not include "some vague notion of unfairness;" instead, it imposes upon a defendant the duty to demonstrate that the criminal proceedings were adversely affected in some concrete way. United States v. Renzi, 722 F.Supp.2d 1100, 1131 (D. Ariz. 2010) ().
Defendant cites two decisions in his brief in opposition to the Government's Motion to support his contention that he "has been prejudiced to the extent that the government used recordings that it should not have made to develop its case:" United States v. Marshank, 777 F.Supp. 1507 (N.D. Cal. 1977) and United States v. Nieves, No. 97-046, 1997 WL 447992 (E.D. Pa. July 24, 1997). (ECF No. 171 at 5-6.) Instead of supporting defendant's assertion that he is entitled to relief in this case, these decisions reinforce the concept that identifying and substantiating actual and substantial prejudice is essential to any claim of governmental misconduct.
In Marshank, defendant's attorney, Ron Minkin ("Minkin"), provided information to government agents about his client's whereabouts and criminal activity both before and after defendant was indicted. Marshank, 777 F.Supp. at 1512-18. The court found that the government was aware of Minkin's conflict of interest, failed to notify the court or defendant about it, and "went so far as to participate in efforts to mask the conflict of interest from the defendant." Id. at 1519-20. The district court concluded that it was "clear that [defendant] was prejudiced" by the government's intrusion into his attorney-client relationship with Minkin because "most, if not all" of the government's evidence against him came from Minkin, and without Minkin's cooperation, the defendant would not have been indicted. Id. The court held that being indicted qualifies as actual and substantial prejudice and dismissed the indictment. Id. at 1523, 1524, 1528, 1530.
The district court reached a similar conclusion in Nieves. In that case, Nieves' codefendant, who shared an attorney with Nieves, volunteered privileged information to government agents during their investigation, and agreed to record future conversations of the same nature for the government. Nieves, 1997 WL 447992, at *5-6. The court faulted the government for suggesting that Nieves' codefendant raise "[c]ounsel as a topic for his phone conversations" with defendant, and for failing to discourage the codefendant's disclosure of privileged communications. Id. Relying upon the investigating agent's admission that money laundering charges were added to Nieves' indictment based upon the privileged conversations that Nieves' codefendant disclosed to the government, the district court concluded that "[a] criminal indictment surely constitutes 'actual and substantial prejudice.'" Id. at *6. Notably, the court did not dismiss the indictment in Nieves, but only excluded certain recorded telephone...
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