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United States v. Morris

United States District Court, D. Minnesota

July 24, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL MORRIS (1), PAWINEE UNPRADIT (4), GREGORY ALLEN KIMMY (6), THOUCHARIN RUTTANAMONGKONGUL (16), and WARALEE WANLESS (20), Defendants.

          Laura M. Provinzino and Melinda A. Williams, Assistant United States Attorneys, (for the Government);

          Robert D. Sicoli, Sicoli Law, Ltd., (for Defendant Michael Morris);

          Daniel L. Gerdts, (for Defendant Pawinee Unpradit);

          Jean M. Brandl, Brandl Law, LLC, (for Defendant Gregory Allen Kimmy);

          Daniel C. Guerrero, Meshbesher & Spence, Ltd., (for Defendant Thoucharin Ruttanamongkongul); and

          Bruce M. Rivers, Rivers Law Firm, P.A., (for Defendant Waralee Wanless).

          ORDER

          Tony N. Leung United States Magistrate Judge

         This matter is before the Court, United States Magistrate Judge Tony N. Leung, following a May 14, 2018 Order which ruled on the majority of pretrial motions filed in this case, but held several motions in abeyance to permit the parties additional time to reach a mutually-agreeable resolution prior to court intervention. (May 14, 2018 Order ¶¶ 16- 17, at 27-29, ECF No. 801).[1] These motions fall into two categories: motions concerning the Government's confidential informants and motions concerning the protective order governing discovery this case. (See May 14, 2018 Order ¶¶ 16-17, at 27-29). As noted in the May 14, 2018 Order, the parties had until June 15, 2018 to attempt to work together to reach a mutually-agreeable resolution before this Court would issue an order resolving the motions. (May 14, 2018 Order ¶¶ 16-17, at 27-29). The parties have not filed anything in response to the Court's May 14, 2018 Order. Accordingly, this Order addresses the following motions: Defendant Morris's Motion to Disclose and Make Informant Available to Interview, (ECF No. 468); Defendant Unpradit's Motion for the Production of Informants for the Purpose of Conducting Pretrial Interviews, (ECF No. 617); Defendant Wanless's Motion for Disclosure of the Identity of All Participant-Witnesses, (ECF No. 594); Defendant Morris's Motion to Modify Protective Order, (ECF No. 589); Defendant Unpradit's Motion to Strike the Protective Order, (ECF No. 626); and Defendant Ruttanamongkongul's Motion for Leave to Adopt Motions Filed by Co-Defendants, (ECF No. 610).

         As noted in the May 14, 2018 Order, a hearing was held on March 8, 2018 at which the Court heard argument from the parties' respective counsel on these motions. (ECF No. 708). The parties submitted post-hearing briefing. (ECF Nos. 754, 756, 771). Given the overlapping nature of these motions and to ensure that the Government and Defendants in this litigation are proceeding in a consistent manner, this Court finds it prudent to address the pending motions in a single order. Based upon the record, memoranda, and oral arguments of counsel, IT IS HEREBY ORDERED as follows:

         1. Defendant Morris's Motion to Modify Protective Order, (ECF No. 589), Defendant Unpradit's Motion to Strike the Protective Order, (ECF No. 626), and Defendant Ruttanamongkongul's Motion for Leave to Adopt Motions Filed by Co-Defendants, (ECF No. 610), [2] are GRANTED IN PART and DENIED IN PART as follows: The Court issued a Protective Order on June 6, 2017. (Protective Order, ECF No. 88). The Protective Order notes that discovery in this case includes “personal identifiers of a variety of individuals, including non-party victims and witnesses, ” such as “names, nicknames, dates of birth, social security numbers, driver's license numbers, bank account numbers, home addresses, visas, passports, and other immigration identifiers, and other personal information.” (Protective Order, at 1-2). The discovery also includes “numerous escort-style photographs of nude and partially-nude women, including non-party victims.” (Protective Order, at 2). The Court found that, in a “case where threats have been made to victims, including threats involving the families of victims located outside of the United States, ” the United States had shown good cause why dissemination should be limited. (Protective Order, at 2). Thus, the Protective Order limits the dissemination of “Protected Material, ” which is defined as names and nicknames of any non-party individuals, dates of birth, social security numbers, driver's license numbers, bank account numbers, home addresses, telephone numbers, photographs of individuals, visas, passports, and other immigration identifiers, family identifiers, and other similar personal identity information, as well as escort-style photographs. (Protective Order, at 2). Protected Materials were not to be copied or disseminated and were not to be shared to any party outside the “defense team” consisting of attorneys and their staff and agents. (Protective Order, at 2-3). Protected Materials were not to be shared with Defendants. (Protective Order, at 3).

         Defendants assert that the Protective Order infringes on their rights to prepare a defense and impair the ability of defense counsel to discuss defenses with their clients. Moreover, Defendants assert that the Government has unilaterally modified the Protective Order by selectively abiding by its terms, despite being the party that sought the Protective Order. In the May 14, 2018 Order, this Court noted that it was “inclined to agree that the Protective Order needs modification at this time.” (May 14, 2018 Order ¶ 17, at 29). As noted in the May 14, 2018 Order, the Government indicated at the hearing that it would be coordinating with defense counsel to propose a modified protective order that met its concerns but also accommodated the concerns of defense counsel, including Defendant Morris's counsel's proposed modification which would allow defense counsel to share the names, nicknames, and photographs of non-parties with his client. Since the hearing, the parties have not been able to coordinate an agreed-upon approach for the Court's consideration.

         Under Rule 16, the Court may, at any time, “deny, restrict, or defer discovery or inspection, or grant other appropriate relief” for good cause. Fed. R. Crim. P. 16(d)(1); United States v. Lee, 374 F.3d 637, at 652 (8th Cir. 2004). This Court is highly concerned with the assertions that the Government has violated the Protective Order by selectively adhering to the terms contained therein; assertions the Government has not refuted. Moreover, in originally responding to Defendants' motions, the Government agreed “that some limited modifications to the protective order may be appropriate.” (ECF No. 694, at 10; ECF No. 698, at 22). As the Government and Defendants correctly point out, this case is shifting from the pretrial discovery stage to trial preparation. Defendants need to be able to participate more thoroughly in the review of discovery and the formulation of their defense at trial. As it stands, the current Protective Order does not permit “disclosure in a manner sufficient to facilitate preparation of a competent defense.” United States v. Johnson, 191 F.Supp.3d 363, 373 (M.D. Pa. 2016).

         Pursuant to Rule 16(d)(1), this Court finds it prudent to modify the current Protective Order in the manner much as requested by Defendants. United States v. Wecht, 484 F.3d 194, 211-12 (3d Cir. 2007) (noting that courts should use the same balancing test in amending protective orders as used when determining whether to grant such orders in the first instance). The Government maintains legitimate concerns related to witness safety as there have been threats made to victims and their families, located within and outside the United States. (Protective Order, at 2). Moreover, there is little need for Defendants to have the detailed personal identifiers found in much of the discovery, particularly where this case involves allegations of persons holding bondage debts over others. (See Protective Order, at 1-2). Accordingly, the names, nicknames, and photographs, including the escort-style photographs, of non-party individuals shall no longer be considered “Protected Material” under the Protective Order. The personal identity information which includes dates of birth, social security numbers, driver's license numbers, bank account numbers, home addresses, telephone numbers, visas, passports, and other immigration identifiers, and family identifiers shall remain “Protected Material” subject to the terms of the Protective Order.

         2. Defendant Morris's Motion to Disclose and Make Informant Available to Interview, (ECF No. 468), Defendant Unpradit's Motion for the Production of Informants for the Purpose of Conducting Pretrial Interviews, (ECF No. 617), and Defendant Wanless's Motion for Disclosure of the Identity of All Participant-Witnesses, (ECF No. 594), are GRANTED IN PART and DENIED IN PART as follows: Defendant Morris seeks “the identity of any information or informants utilized by the government in the investigation” and to make them available for interview. (ECF No. 468, at 1). Defendant Wanless seeks the “identity of all participant informants who are involved in this case” since “any such participants would likely be material witnesses who may have played a material role in the offense . . .” (ECF No. 594, at 1). Defendant Unpradit seeks the “identity of . . . all informants used in the investigation of this case.” (ECF No. 617, at 1). Defendant Unpradit notes that ...


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