Case: 09-7572

Document: 26

Date Filed: 09/30/2009

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IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA v. : : APPEAL NO. 09-7572 REDACTED VERSION THOMAS BROMWELL, SR., et al. :

...oooOooo... GOVERNMENTS RESPONSE TO INTERVENOR/APPELLANTS INFORMAL BRIEF The United States of America, by its undersigned attorneys, submits this memorandum response to the Informal Brief filed by William C. Bond, the intervenor/appellant. INTRODUCTION William C. Bond, the intervenor/appellant, has brought this appeal in his ongoing effort to obtain sealed pleadings and other parts of the record from a now concluded public corruption and fraud prosecution in the District of Maryland involving a former State Senator, the Senators wife, and a local businessman. Mr. Bond claims that the trial court improperly refused to unseal the records out of a desire to protect the reputations of some of the defense attorneys who were
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disqualified on the eve of the scheduled trial due to irreconcilable conflicts of interest. In the court below, multiple records were sealed for diverse reasons.1 When Mr. Bond filed his motion to unseal in March of 2009, the government responded that it did not object to the unsealing of some of the records, but objected to the unsealing of two distinct categories of records, namely 1) records relating to a specific witness; and 2) work product materials. The government submits this response to Mr. Bonds Informal Brief solely with respect to those two categories of records. PROCEDURAL BACKGROUND In October of 2005, a Special Grand Jury returned a 30 count Superseding Indictment, charging former Maryland State Senator Thomas Bromwell Sr., Mary Patricia Bromwell, and W. David Stoffregen with one count of RICO conspiracy, as well as assorted charges against the various defendants for mail and wire fraud, Hobbs Act extortion, false statement and tax violations. Defendant Stoffregen pleaded guilty in November of 2006, and trial of the Bromwell defendants was scheduled for the spring of 2007. The government is aware of the reasons for the sealing of three separate categories of documents, but believes there may be other items under seal to which it was not privy.
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On March 16, 2007, shortly before the trial was scheduled to begin, the trial court issued an order disqualifying and removing the attorneys for both of the Bromwell defendants from further participation in the case on account of irreconcilable conflicts of interest. In July of 2007, after obtaining new counsel, both of the Bromwell defendants entered guilty pleas. The district court sentenced the Bromwell defendants in November of 2007. A number of pleadings were filed and hearings were held under seal during the course of the case. In March of 2007, the Baltimore Sun Company moved to intervene for the purpose of obtaining access to the sealed proceedings and pleadings. The trial court granted the motion to intervene and held a hearing on the motion for access on March 9, 2007. The trial court then issued an order on March 16, 2007, the same day that it removed the defense attorneys from the case, in which the court unsealed certain pleadings in their entirety, unsealed some of the pleadings and transcripts of hearings in redacted form, and ordered that certain other pleadings and transcripts remain under seal. The Baltimore Sun Company did not appeal that ruling. Two years later, on March 9, 2009, Mr. Bond filed a motion in the court below, demanding that the trial court unseal the entire record in the case. The government replied that it did not object to the unsealing of some of the records
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sought by Mr. Bond, but did object to the unsealing of the records relating to the specific witness issue and to government work product. The trial court then denied Mr. Bonds motion in its entirety. This appeal followed. ARGUMENT I. The Records Relating to the Specific Witness Issue Should Remain Sealed.

The reasons for the records relating to the specific witness issue to remain under seal are described in detail in the sealed document filed on February 7, 2007, and denoted on the trial court docket sheet as document # 105. As set forth below in the sealed, ex parte portion of this response, the trial court properly ordered that those records remain under seal.

REDACTED

When the trial court issued its unsealing order on March 16, 2007, it properly did not unseal the documents relating to the specific witness issue (Document #s 105, 121, 124, 125, 133, and 134) and it redacted portions of other
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documents that referenced that issue before unsealing those particular documents.2 As the trial court indicated, if any party seeks appellate review of this portion of this Order, the Fourth Circuit should refer to document 105 that reflects the reasons for the sealing of these documents on an ex parte basis. See Courts Order of March 16, 2007 (Doc. # 141) at p. 3. The reasons for sealing the records relating to the specific witness issue in 2007 are still applicable apply today. While there is a presumption in favor of the publics right of access to court filings, that presumption can be outweighed by
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The following redactions relate to the specific witness issue:

1. Redactions on pages 1-2 of Defendants Motion for Discovery and Continuance (Doc. #119), filed on February 26, 2007; 2. Redactions on pages 11-12 of Defendants Sealed Motion to Dismiss the Superseding Indictment for Prosecutorial Misconduct and Memorandum in Support (Doc. # 120), filed on February 26, 2007; 3. The redaction on page 8, line 13 of the transcript of the March 6, 2007 hearing; 4. The redaction on page 12 of the Governments Opposition to Defendants Sealed Motion for Discovery and Continuance (Doc. #122), filed on March 2, 2007; 5. The redaction on page 3, footnote 2, of the defendants Supplement to Motion for Discovery and Continuance (Doc. #115), filed on March 2, 2007; 6. The redaction on pages 1-2 of the defendants Omnibus Motion for Continuance (Doc. # 116), filed on March 2, 2007; and 7. The second redaction on page 2 and the redactions on page 7 of the Governments Opposition to Defendants Motion to Dismiss Alleging Misconduct (Doc. # 126), filed on March 5, 2007.

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other important interests, such as circumstances where the disclosure of a pleading would violate the attorney-client privilege, implicate national security concerns, compromise an ongoing investigation or endanger the safety of a witness. In re: Application and Affidavit for a Search Warrant (Washington Post Co. v. Hughes), 923 F.2d 324, 331 & n.4 (4th Cir. 1991). The district courts denial of Mr. Bonds motion to unseal the records relating to the specific witness issue should be affirmed. II. The Work Product Materials Should Remain Sealed.

The second category of documents that should remain under seal relate to the governments attorney work product. In February of 2006, the trial court appointed the Federal Public Defenders Office to represent defendant Stoffregen. Assistant Federal Public Defender Joseph Evans, who had previously served as an Assistant United States Attorney in Maryland, sought to represent defendant Stoffregen pursuant to that appointment. The government objected to Mr. Evans being involved in the case on the ground that his prior employment in the United States Attorneys Office created a conflict of interest. The government filed two affidavits ex parte and under seal in February of 2006 that contained work product information in support of its position that it would be a conflict of interest for Mr. Evans to participate in the case. The court
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then conducted a sealed hearing on February 23, 2006, during which some of that work product was discussed. It is well-established that the work product doctrine protects work that attorneys perform in anticipation of litigation and that the doctrine applies to grand jury proceedings. In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994). Moreover, the ability to protect work product normally extends to both clients and attorneys, and the attorney or client, expressly or by conduct, can waive or forfeit it, but only as to himself .... In re Doe, 662 F.2d 1073, 1079 (4th Cir. 1981)(citations omitted). The protections afforded to the governments attorney work product still apply and have not been waived by the government. Mr. Bond has not identified any reason why those protections should be lifted in this case. Accordingly, the trial courts denial of Mr. Bonds motion to unseal those particular records should be affirmed. CONCLUSION For the foregoing reasons, the government respectfully requests that this honorable Court affirm the lower courts decision to keep under seal the records

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relating to the specific witness issue and attorney work product. Respectfully submitted,

Rod J. Rosenstein United States Attorney By:_________/s/__________________ Kathleen O. Gavin Assistant United States Attorney 36 South Charles Street Fourth Floor Baltimore, Maryland 21201 (410) 209-4800 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 30th day of September, 2009, copies of the foregoing redacted version of the Governments Response to Intervenor/Appellants Informal Brief were filed with the Clerk of the Court using the CM/ECF System, which will send notice of such filing to the following users, if registered with the CM/ECF System, and if any are not so registered, copies were sent by mail, first-class, postage prepaid, to: William C. Bond 309 Suffolk Road Baltimore, Maryland 21218; Barry J. Pollack, Esquire Miller & Chevalier 655 Fifteenth Street, N.W.
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Suite 900 Washington, D.C. 20005 William B. Purpura, Esquire 8 East Mulberry Street Baltimore, Maryland 21202 Jeffrey Risberg, Esquire Assistant Federal Public Defender 100 South Charles Street Suite 1100 Baltimore, Maryland 21201 David B. Irwin, Esquire Irwin, Green & Dexter, L.L.P. 301 West Pennsylvania Avenue Towson, MD 21204

_______/s/__________________________ Kathleen O. Gavin Assistant United States Attorney