GOVERNMENT MAY DEPOSE DEFENSE COUNSEL IN PURSUIT OF CLIENT’S FORFEITED ASSETS
Neither the Fifth Amendment or Attorney Client privilege stands in the way of the Government to depose defense attorneys in their efforts to locate a client’s forfeited assets.
See U.S. v. Saccoccia, 823 F. Supp. 994 (D.C. 1995).
Rule 16(d)(2) provides that as a sanction for failure to comply with Rule 16 the Court “may order such party to permit the discovery or inspection, grand a continuance, or prohibit the party from introducing evidence not disclosed.”
The appropriate standard in a particular case is left to the “discretion of the trial court,” see Advisory Committee Notes, Rule 16(d), and “in an unusual case the court might be justified in taking the extreme measure of ordering the prosecution dismissed.” 8 MOORE’S FEDERAL PRACTICE § 16.05 at 16-64.
The Sixth Amendment Compulsory Process Clause may be violated by the imposition of a discovery sanction that entirely excludes the testimony at a material defense witness. The clause confers on the accused the fundamental right to present witnesses in his own defense. However, the clause does not create an absolute bar to the preclusion of the testimony of a defense witness as a sanction for violating a discovery rule. Although a trial court may not ignore the fundamental character of the defendant’s right to offer testimony of witnesses in his favor, the mere invocation of that right cannot automatically outweigh public interests. Taylor v. Illinois, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). If discovery violations are willful and motivated by a desire to obtain a tactical advantage or to conceal a plan to present fabricated testimony, it would be entirely appropriate to exclude the witness’s testimony regardless whether other less drastic sanctions are available. Taylor, supra.
See Escalera v. Coombs, F.Supp. (E.D.N.Y. 1987);
Chappee v. Rose, F.2d (1st Cir. 1988).
Rule 26.2, in even stronger language than Rule 16(d)(2), provides that a sanction for failure to comply is that the Court “shall order that the testimony of the witness be stricken from the record and that the trial proceed.” R. 26.2(e), F.R.Cr.P..
It is interesting to note that under Rule 16, the appropriate standard in a particular case is left to the “discretion of the trial court,” see Advisory Committee Notes, Rule 16(d), and “[I]n an unusual case the court might be justified in taking the extreme measure of ordering the prosecution dismissed.” 8 MOORE’S FEDERAL PRACTICE § 16.05 at 16-64, where the prosecution fails to comply. See also US v. Wallace, 848 F.2d 1464 (9th Cir. 1988) (noting the sanction of dismissal appropriate where notes of government’s principal witness were not disclosed and subsequently lost); US v. Carrigan, (1986) (stating defense counsel permitted to depose government witness as sanction for government’s interference with defense counsel’s access to the witnesses).