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In re Motion to Quash Grand Jury Subpoena

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


August 16, 2006

IN RE MOTION TO QUASH GRAND JURY SUBPOENA

The opinion of the court was delivered by: Siragusa, J.

Decision and Order

On August 2, 2006, potential grand jury witness Karen Francati moved to quash a subpoena issued by the government in United States v. Sheldon English, 05-CR-6142-DGL.*fn1 Ms. Francati is employed by the Federal Public Defender's Office as an Investigator and Paralegal, and her testimony was sought in connection with that office's former representation*fn2 of Sheldon English in a criminal case now pending before Judge David G. Larimer of this Court. Ms. Francati is represented on her application to quash by Robert Smith, Esq., also of the Federal Public Defender's Office. Paul D. MacAullay, Esq., currently representing Mr. English in the case before Judge Larimer, also moved on behalf of Mr. English to quash the subpoena.

Although the subpoena, properly served on Ms. Francati, directed her to bring "all documents relating to this matter," the government has conceded that there has been no showing that such documents furthered the crime of false statements. Therefore, as to such documents, Ms. Francati's motion to quash is granted.

As to Ms. Francati's testimony, the government maintains it is relevant to a grand jury investigation into possible criminal charges relating to a violation of Title 18, United States Code, Section 1001 (False Statements). Both Ms. Francati and Mr. English maintain that her testimony is precluded by the attorney client privilege or that it is protected attorney work product. The government contends that her testimony is permissible pursuant to the "crime fraud exception."

After hearing oral argument, and considering the papers filed in support of, and opposition to the motions to quash, including the government's sealed submission, the Court held an in camera examination of Ms. Francati on Wednesday, August 9, 2006, in the presence her attorney, Mr. Smith, and Jay Ovsiovitch, Esq.. also of the Federal Public Defender's Office. The Court finds that based upon the submissions and in camera examination, the government has demonstrated "that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime." United States. v. Jacobs, 117 F.3d 82, 87 (2d Cir. 1997).

Accordingly, it is hereby

ORDERED, that the motions to quash are granted with respect to "all documents relating to this matter," but denied with respect to Ms. Francati's testimony, however it is further

ORDERED, that the grand jury examination of Ms. Francati is limited to the "Court Approved Questions to Ms. Francati" attached hereto and made part of this order.

CHARLES J. SIRAGUSA United States District Judge

COURT APPROVED QUESTIONS TO MS. FRANCATI

Question: Ms. Francati, can you first tell me who you're employed by?

Anticipated Answer: The Federal Defender's Office.

Question: In what capacity are you employed?

Anticipated Answer: I'm employed as an investigator and paralegal in the Federal Defender's Office.

Question: And how long have you been employed in the Federal Defender's Office?

Anticipated Answer: 14 years.

Question: And were you so employed by the Federal Defender's Office From April of 2005 through March of 2006?

Anticipated Answer: Yes, I was.

Question: In connection with your duties as an investigator/paralegal with the Federal Defender's Office, did you come to known individual by the name of Sheldon English?

Anticipated Answer: Yes.

Question: Could you explain how you came to know Sheldon English?

Anticipated Answer: The Federal Defender's Office was assigned to represent Sheldon English. Robert Smith was assigned as his lawyer, and I assisted Mr. Smith in the investigation of Sheldon's case.

Question: Do you recall the approximate time when that assignment commenced?

Anticipated Answer: I don't. Sometime in 2005.

Question Would the assignment have been shortly after Mr. English's arrest on April 22nd, 2005?

Anticipated Answer: Yes.

Question: In connection with the Federal Public Defender's representation of Sheldon English did you become aware of an individual by the name of Jay?

Anticipated Answer: Yes.

Question: Could you explain how you became aware of Jay?

Anticipated Answer: On one of the occasions I was over at the jail meeting with Sheldon English, he had said, "Jay came to see me at the jail, and Jay told me that it was his gun and he wants to tell you. So I told him to come and see you. I gave him your address at your office, and he'll be coming to see you."

Question: When did Sheldon English tell you this?

Anticipated Answer: ?????

Question: Did you ask Mr. English what Jay's full name was?

Anticipated Answer: ?????

Question: What did Mr. English say in response?

Anticipated Answer: ?????

Question: When Mr. English told you Jay would be coming to your office, did you make any comment to him to the effect that you would try to get a written statement from Jay because it would be helpful to Mr. English's case

Anticipated Answer: I said, "If he comes to see me and he says it's his gun, I am going to ask him to sign an affidavit."

Question: And did you tell Mr. English what you would do with the affidavit?

Anticipated Answer: We discussed whether -- we discussed when that would be revealed to the U.S. Attorney's Office, and I said, "I don't know. That would be the attorney's call."

Question: Did this person named Jay in fact come to your office to see you?

Anticipated Answer: Yes.

Question: When?

Anticipated Answer: It was sometime at the end of December 2005.

Question: Where is your office located?

Anticipated Answer: 28 East Main Street.

Question: When Jay came into see you, did you learn his real name?

Anticipated Answer: Yes

Question: What did you learn?

Anticipated Answer: He told that his real name was Ulises Vargas and his street name, or the name he goes by, is Jay.

Question: Describe in detail what occurred when Mr. Vargas came to your office?

Anticipated Answer: He came unannounced. The secretary said, "Ulises Vargas is here." I went and met him and brought him into my office. He said, "I'm Jay. My real name is Ulises Vargas." I said, "Why are you here?" He said, "I want to tell you it was my gun in the incident involving Sheldon English. It was my gun, and I want to give you a statement." I said to him, "Why are you doing this?" And he said, "Well, I know Sheldon is facing a lot of time. It wasn't his gun. It's not right that he go down for my gun, and I don't have a long criminal history, and I am not going to get as much time as Sheldon would." He then said to me, "How much time will I get?"

Question: What did you say anything in response?

Anticipated Answer: I said, "I can't tell you how much time you'll get. I am not a lawyer, ".but he He kept asking, so I told him to sit tight and went down and saw Mr. Smith.

Question: What Happened when you saw Mr Smith?

Anticipated Answer: Mr. Smith said, "I can't tell him how much time he is going to get. I don't know."

Question: What did you do then?

Anticipated Answer: I went back to Mr. Vargas and said, "I can't tell you and Mr. Smith can't tell you how much time you could get."

Question: What happened then?

Anticipated Answer: Mr. Vargas said, "All right, I am going to come back." I said, "You don't want to sign a statement today?" And he said, "No. I'll come back." So he left.

Question: Did there come a time when he returned to your office to see you?

Anticipated Answer: Yes, about a week later he came back; again, unannounced.

Question: Do you recall the date?

Anticipated Answer: Tuesday January 3, 2006.

Question: What occurred when he returned about a week later?

Anticipated Answer: He said, "All right, I'll give you a statement now." He gave me a statement; I wrote it up; he signed it; we had it notarized.

Question: How was the statement prepared; was it question and answer or was it a narrative?

Anticipated Answer: He gave me a narrative. We sat down and talked, and he told me what happened first and then we went over it; and as we went over it, I wrote it out and read it back to him, and he signed it.

Question: And after you read it back to him, did you ask him if it was the truth?

Anticipated Answer: Yes.

Question: Did you ask him anything else?

Anticipated Answer: Yes. I also asked him, you know, "Did anybody threaten you?" It's included in his statement, but I asked him, "Did anybody threaten you? Did Sheldon threaten you? Is anybody making you do this?"

Question: Did he respond?

Anticipated Answer :He said no.

Question: And then he leaves your office?

Anticipated Answer: Yes, he leaves my office.

Question: Before Mr. Vargas left your office did you tell him what you would be doing with the statement?

Anticipated Answer: I believe he asked, "What's going to happen with this?" I said, "I don't know right now. I will give this to Mr. Smith. He'll review it. I don't know what he'll do it with immediately; but eventually we would like to make the prosecutor aware of the fact that you're saying it was your gun. When that's going to happen, I don't know."

Question: After you took the signed statement from Mr. Vargas on January 3, 2006 did you go back to Mr. English him Mr. Vargas' statement?

Anticipated Answer: Yes, I did.

Question: When did that occur?

Anticipated Answer: I don't know exactly when I went back. It would have been very soon after that, within a week.

Question: When you went back to Mr. English, what did you do; what did you say and what did Mr. English say?

Anticipated Answer: When I went back to see Mr. English, I told him, "Ulises came in. He gave a statement. Here's a copy of the statement." And I asked him, "Sheldon, did you threaten him? Did you make him come in?" He said, "No." I said, "I don't understand why this kid would do this, Sheldon." He said, "You know, he's been a friend of the family for a while. He doesn't want to see me go down for something that's not mine."

Question: Did you ask him if it was the truth?

Anticipated Answer: I'm sure I did.

Question: What did he say?

Anticipated Answer: He said, "Yeah, it's the truth. I've been telling you all along it was Jay's gun."

Question: Did he ask you anything?

Anticipated Answer: Yes, he asked me when we would be divulging this information to the prosecutor.

Question: Did you respond?

Anticipated Answer: Yes. I told him eventually it would be, but I told him I didn't know when.

Question: Were you aware that Mr. Smith subsequently presented an oral account of Mr. Vargas' statement to Magistrate Judge Payson in connection with a hearing ?

Anticipated Answer: Yes.

Question: Prior to that presentation to Judge Payson, did you have any further discussions with Mr. English about Mr. Vargas' statement?

Anticipated Answer: Yes.

Question: Could you explain?

Anticipated Answer: When -- sometimes, and I can't recall whether it was every time I saw Mr. English or when, but he would inquire,

"What have you done with the statement? When are you going to give the statement to the prosecutor?"


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