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March 8, 2001


The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge.


On March 2, 2001, on the fifth day of trial, the Government moved for a declaration that the testimony of Jay J. Hait — an attorney who had represented defendant Michael T. Gasparik in his capacity as an associate of co-defendant Roger L. Fidler, also an attorney — is not precluded by the attorney-client privilege.*fn1 Defendants object to the admission of Hait's testimony on several grounds. For the reasons discussed below, Hait may not testify in the Government's direct case. The Government may call Hait as a rebuttal witness, should that be warranted by the defense case, subject to the limitations set forth in this Opinion.


The trial in this securities fraud prosecution commenced with jury selection on February 26, 2001. Several days prior to jury selection, the Government submitted its witness list to the Court for the purpose of jury voir dire. On the morning of jury selection, the Government submitted an additional list of witnesses, which was also included in the voir dire. The name Jay J. Hait was not on either list submitted by the Government.

Immediately following jury selection counsel made opening statements. Gasparik's counsel told the jury that:

Although Mr. Pokross [the Government's cooperating witness] keeps calling throughout the month of May and into early June trying to get Mr. Fidler to start moving as he keeps telling him, you got to do something, you got [to] do something, they never do and nothing happens and they don't go forward and do anything improper. They make no false filing with the SEC, they make no false registration statements, they never prepare a registration statement, they do nothing.

Trial Transcript ("Tr.") at 121 (emphasis added). Fidler's counsel told the jury:

He [Fidler] handled an average caseload of about six or seven cases. He was one of those local guys where you would say to your neighbor, who did you use for a real estate closing and they said Roger Fidler and you would call him up at home and his wife might answer, his son might answer, Roger might answer. In the middle of dinner he would talk to you about the situation you had. He might have gone to criminal court once or twice, handled some speeding tickets.

Id. at 127. At this point, the Court questioned counsel and asked "Is this what you intend to prove?" Id. Counsel responded, "Yes, your Honor." Id. Counsel thereby committed himself, before the jury, to calling Fidler as a witness.

At the close of the fifth day of trial, March 2, 2001, the Government wrote to the Court and opposing counsel alerting everyone to its intention to call a previously unnamed and unidentified witness, Hait, in its direct case. The Government's letter provided a detailed proffer of Hait's testimony. Both defense counsel submitted written responses to the Government's letter on March 3 and March 5, respectively. Not surprisingly, they strenuously objected to his testimony. Their primary objection was to the late notice which they assert sandbagged them into making certain statements in their openings which they may not have made had they known of the Government's intention to call Hait as a witness. Other grounds for their objection included lack of relevance, the invasion of the attorney-client privilege and the highly prejudicial content of some of the proffered testimony, pursuant to Rule 403 of the Federal Rules of Evidence. These issues were argued at length during a telephone conference held on March 6, 2001.


It is well settled that a defendant has no general right to pretrial disclosure of the Government's witnesses. See United States v. Bejasa, 904 F.2d 137, 139 (2d Cir. 1990); United States v. Edwards, 47 F.3d 841, 844 (7th Cir. 1995). However, the "`district courts have authority to compel pretrial disclosure of the identity of government witnesses.'" Bejasa, 904 F.2d at 139 (quoting United States v. Cannone, 528 F.2d 296, 300 (2d Cir. 1975)) (emphasis in original). Moreover, where such disclosure has been made, the decision whether to admit the testimony of a witness not included on the Government's witness list lies within the sound discretion of the Court. See United States v. Cruz, 156 F.3d 22, 29 (1st Cir. 1998).

A. Late Notice and Prejudice

Defendants argue that Hait's testimony should be precluded due to unfair surprise. In order to assess this argument, it is important to know when the Government could have, and should have, disclosed its intent to call Hait as a witness. Because Hait had signed opinion letters and because his name had been mentioned during tape-recorded conversations, the Government knew, or should have known, of his existence for several months prior to trial. Despite that, the prosecutor represented that he did not become aware of Hait's existence until he obtained the share transfer records and reviewed certain transcripts within the two to three weeks prior to trial. Once he learned of Hait, he attempted to interview him, but was rebuffed. On February 26, 2001, he sought an Order of Immunity which he received on February 27, 2001. See Tr. at 586-87. Only then did Hait speak to the prosecutor, an interview which occurred on February 28, 2001. Two days later, the prosecutor wrote his letter to the Court and counsel. In addition to providing this explanation, the prosecutor argued that the Court had not ordered the production of a witness list, and he did not understand the requirement to provide the names of witnesses for voir dire purposes to constitute such an order. See Tr. at 585.

The defense made a timely request for the identification of all witnesses or potential witnesses. See Pre-Trial Motions at Request 28(g) and (y). The Government opposed this request in its Memorandum of Law in Opposition to Gasparik's Pretrial Motions, dated December 8, 2000.*fn2 The defense request was denied at a conference held on January 25, 2001. Nonetheless, the Court required the parties to submit witness lists as part of their proposed voir dire. In its Proposed Examination of Prospective Jurors, submitted on February 21, 2001 (five days prior to trial), the Government identified thirteen potential witnesses in Request #17. At the close of that request the Government noted in bold letters "[names to be supplemented on morning of trial]". On the morning of trial, the Government supplied the Court with the names of four additional witnesses and three companies. All the names were read to the jury. As noted earlier, Hait was not on either list.

Had defendants learned that Hait might be a witness, even on the morning of trial, they might have adjusted their trial strategy or, at the very least, presented different opening statements. In any event, such notification would have provided defense counsel with a reasonable opportunity to address the complicated privilege issues that arise from this ...

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