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In re Motion to Quash Grand Jury Subpoena

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 ...


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