Opinion
02 Cr. 395 (JGK)
November 3, 2003
OPINION and ORDER
In a pretrial motion, defendant Stewart requested an evidentiary hearing to determine whether the Government negotiated an oral agreement with her former counsel in which the Government allegedly agreed to forgo any SAM-related prosecution of Stewart in exchange for her agreement to certain restrictions on her visits with Sheikh Omar Abdel Rahman. In an Opinion and Order dated July 22, 2003, the Court concluded that, based upon the submissions of the parties then before the Court on the issue, an evidentiary hearing was warranted under United States v. Aleman, 286 F.3d 86 (2d Cir. 2002), to determine whether an agreement existed, what its terms were, and whether there was compliance with those terms. The hearing was held on September 29, 2003, and the Court heard testimony from Stanley Cohen, Esq., Stewart's former counsel, and from Patrick Fitzgerald, Esq., the current United States Attorney for the Northern District of Illinois and a former Assistant United States Attorney for the Southern District of New York. Both parties also submitted various exhibits to the Court. Both witnesses were called by defendant Stewart, and she now moves for specific performance of the alleged nonprosecution agreement and dismissal of the indictment against her. Having considered the witnesses' testimony and assessed their credibility, and having considered all of the submissions of the parties, the Court makes the following findings of fact and conclusions of law.
With the agreement of the parties, the Court bifurcated the hearing. The parties presented evidence regarding whether there was a non-prosecution agreement and what its terms were, awaiting a decision on this issue by the Court before presenting evidence regarding any breach of such an agreement. (Tr. 4-5.)
I.
Beginning in the summer of 2000, Cohen represented defendant Stewart in negotiations with then-AUSA Fitzgerald regarding the Special Administrative Measures ("SAM") that governed Stewart's access to, and communication with, Sheik Abdel Rahman, who was incarcerated in federal prison following his conviction on terrorism-related charges. (Tr. 14.) In a letter dated July 28, 2000, Fitzgerald informed Stewart that the Government was concerned that Stewart had violated the SAMs imposed on Sheik Abdel Rahman in June 2000 when she released a statement of Sheik Abdel Rahman to the press. (Government Exhibits ("GX") 11, 12, at 1.) The letter informed Stewart that the Government considered the consequences of violations of the SAMs to include getting "people killed and buildings blown up." (Id. at 2.) The letter further explained that the United States Attorney's Office ("USAO") was recommending to the Department of Justice that Stewart be required to execute an amended affirmation of the SAMs "recognizing the severity of the consequences of a violation of the [SAMs] before any more legal visits can even be contemplated." (Id.) A copy of the proposed amended affirmation was attached to the letter. (GX 11A, 12A.)
Cohen did not believe at that time that the letter indicated the Government's intention to prosecute Stewart, although he contemplated that charges against her were a possibility. (Tr. 17-18, 23, 36-37.) Cohen understood his role as Stewart's attorney to be limited to quickly negotiating the terms of a one-time SAM that would permit Stewart to see-Sheik Abdel Rahman, so that Sheik Abdel Rahman could approve the terms of the SAM going forward. (Tr. 21-22, 39-40.) Cohen recalls having three or four telephone conversations with Fitzgerald concerning Stewart's signing the new affirmation. (Tr. 34, 42.) In these conversations, Cohen and Fitzgerald never discussed whether Stewart was the target or subject of a criminal investigation and Cohen never asked whether Stewart was the subject or target of a criminal investigation, and Cohen and Fitzgerald never discussed the possibility of entering into a nonprosecution agreement for Stewart. (Tr. 37-44.) Similarly, while Cohen recalled other Assistant United States Attorneys becoming involved in the discussions, he was clear that in none of those discussions was there a discussion of whether Stewart was a target or subject of a criminal investigation, and there was no discussion of a non-prosecution agreement for Stewart. (Tr. 43-44.) Cohen testified that he never asked or told any Assistant United States Attorney that he wanted assurances from them that they would not prosecute Stewart. (Tr. 44.)
As a result of the negotiations, Cohen did not believe that he had obtained a formal nonprosecution agreement with the Government for Stewart. (Tr. 55.) Cohen in fact studiously avoided directly addressing "the specter of misconduct attributed to Ms. Stewart," because he hoped quickly to get Stewart access to Sheik Abdel Rahman on terms with which she would be comfortable, without anything more being made of the situation. (Tr. 56-57.) Cohen did not know whether the specter of misconduct attributed to Stewart was "high on [the Government's] radar screen, and [he] certainly didn't want to suggest it." (Tr. 56.) When Stewart was eventually arrested and charged in this case, Cohen called the USAO to determine the basis of the arrest and the possibility of a bail package, but he never indicated that the charges violated a nonprosecution agreement between Stewart and the USAO. (Tr. 54-55.)
Fitzgerald testified that at the time he sent the July 28, 2003 letter to Stewart, he was considering a criminal investigation of Stewart, but that any such investigation was held in abeyance to avoid compromising national security by undermining an ongoing intelligence investigation. (Tr. 72-75.) In his subsequent negotiations with Cohen, Fitzgerald did not tell Cohen that Stewart might become the target of a criminal investigation, because he did not want to compromise the intelligence investigation. (Tr. 79-80.) Fitzgerald confirmed Cohen's testimony that the negotiations between the two of them focused exclusively on the terms of any future visits that Stewart would have with Sheik Abdel Rahman. (Tr. 80.) The two of them never discussed any future prosecution of Stewart. (Id.) Indeed, Fitzgerald categorically and credibly denied ever having entered into a nonprosecution agreement with Cohen. (Tr. 88.)
II.
"It is well settled that the government may in its discretion make agreements in which it exchanges various levels of immunity from prosecution for the defendant's cooperation." Aleman, 286 F.3d at 89. Any such agreements, including nonprosecution agreements, must be interpreted "according to principles of contract law." Id.;see also United States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990). Due process requires that courts "to construe agreements strictly against the government in recognition of its superior bargaining power. . . ." Aleman, 286 F.3d at 89.
Interpretation of alleged nonprosecution agreements is more difficult when those agreements are oral. But the same contract principles apply, because "[w]hether the agreement is written or oral, the court must determine what the parties reasonably understood to be its terms, including intended remedies in the event of a breach." Id. (internal quotation marks and citation omitted). When the agreement is oral, the court "must consider the possibility that immunity discussions . . . never progressed to a meeting of the minds and formation of an enforceable-bargain." Id. However, even if no actual agreement is determined to exist, according to principles of promissory estoppel, the Government can be held to any clear and unambiguous promise of immunity it makes to a defendant, upon which the defendant reasonably relied to his or her detriment.See United States v. Rosario, 237 F. Supp.2d 242, 244-45, 248 (E.D.N.Y. 2002). The defendant bears the burden of proving the existence of any agreement or promise not to prosecute. See id. at 245.
There is no credible basis for Stewart's contention that there was an enforceable agreement or promise not to prosecute her. First, there was no actual agreement under the principles of contract law, because there was never a meeting of the minds between Stewart and the Government concerning a nonprosecution agreement. Both Cohen and Fitzgerald testified unequivocally that no formal nonprosecution agreement was ever reached by them. Cohen deliberately never placed the specter of Stewart's possible misconduct on the table because he did not want to raise it. There could never have been an agreement on the nonprosecution of Stewart because that subject was never even the topic of conversation between Cohen and the Government. While Cohen and the Government discussed Stewart's access to Sheik Abdel Rahman, it is clear beyond any doubt that there was never any agreement that the Government would not prosecute Stewart.
Second, the Government never made any clear and unambiguous promise not to prosecute Stewart. Indeed, the Governments-never made any promise at all on that subject. Cohen and Fitzgerald never once discussed even the possibility that Stewart might become the target of a criminal investigation or the subject of criminal charges. Therefore, there was no reason for Fitzgerald to make any assurances to Stewart or her counsel that might be construed as a promise not to prosecute her, and no such assurance or promise was ever made. If an agreement had been reached or a promise made by the Government not to prosecute, then Cohen's response upon learning of Stewart's arrest and indictment should have been "an anguished howl of protest over the breach of the agreement." See United States v. Aaronoff, No. 91 Cr. 221, 1992 WL 30680, at *12 (S.D.N.Y. Feb. 10, 1992),aff'd, 990 F.2d 622 (2d Cir. 1993) (table). Cohen made no such objection, but instead called the USAO to determine the basis for the charges and the possibility of a bail package. The reason Cohen made no howl of protest is plain: no reasonable person could have construed any aspect of the conversations between Cohen and Fitzgerald (or any other prosecutor), or any provision of the SAMs they negotiated, to have constituted, explicitly or implicitly, either an agreement or a promise not to prosecute Stewart.
Stewart attempts to rely on various theories that ostensibly support a conclusion that the Government's failure to alert her to the possibility that she could be indicted permitted the reasonable inference on her part that the Government had decided not prosecute her. Stewart contends that because she was allowed to resume her relationship with Sheik Abdel Rahman if she signed a new affirmation, a relationship that Stewart would allegedly be conflicted out of if she were implicated in criminal charges involving her client, she could rightly assume that no criminal investigation of her conduct was contemplated. She also contends that even if Fitzgerald was duty bound not to disclose the existence of FISA surveillance or an ongoing intelligence investigation, he could simply have refused Stewart access to Sheik Abdel Rahman. Indeed, Stewart maintains that this course of action was Fitzgerald's ethical obligation under his duty of candor as a government attorney.
None of Stewart's arguments is persuasive. She cites no persuasive authority for the proposition that the Government was obligated to disclose to her that she could be indicted, and indeed she recognizes that it would have been improper for Fitzgerald to disclose any FISA surveillance. And while-Stewart might have hoped that the Government's silence concerning her prosecution meant that none was contemplated, no reasonable person could have interpreted Fitzgerald's conduct or his representations to have been, explicitly or implicitly, an agreement or promise not to prosecute her. Because Stewart has failed to show that a nonprosecution agreement was reached or that the Government made any promise at all not to prosecute her, her motion to dismiss the indictment on the basis of a nonprosecution agreement is denied.
III.
The Government also requests that it be permitted to withdraw from evidence Government Exhibits 20, 21, and 22, and that the defense be required to return all copies of those exhibits to the Government. Government Exhibits 20, 21, and 22 are internal Government memoranda which, at the defendant's suggestion, were sealed at the conclusion of the hearing. (Tr. 106-07.) At the outset of the evidentiary hearing, the parties consented to the admission of all exhibits, and the Court received them into evidence. (Tr. 8-9.) Following Cohen's testimony, the Government decided not to call Fitzgerald as its own witness, but defendant Stewart did subsequently call him as her witness. At that time, the Government requested that the defense be directed to return all copies of the Rule 26,-2 material for Fitzgerald, which includes but is not limited to Exhibits 20, 21, and 22. (Tr. 62-63.) The Court did not rule on the issue, and the Government now renews that request as well. Stewart opposes the Government's request with respect to all of the documents turned over by the Government.
Stewart points out that the 26.2 material for Fitzgerald-other than Exhibits 20, 21, and 22-was all previously turned over to the defense pursuant to the Government's obligations under Rule 16. Therefore, there is no basis to require the return of that material to the Government. The dispute, therefore, centers on Exhibits 20, 21, and 22.
The parties agree that the decision whether to permit a party to withdraw evidence that has been previously admitted is left to the Court's discretion. See United States v. Bayne, 612 F.2d 952, 953 (5th Cir. 1980).
The Government correctly notes that the Court has already determined that there is nothing in the exhibits that is required to be produced pursuant to Brady v. Maryland, 373 U.S. 83 (1963), orGiglio v. United States, 405 U.S. 150 (1972). (Order dated Sept. 26, 2003, at 2.) The testimony by Fitzgerald is consistent with those exhibits and underscores that the exhibits do not constituteBrady or Giglio material. The Government argues that the exhibits should be returned because they were disclosed for possible use at a hearing on a motion that was ultimately baseless, and because Stewart is not otherwise entitled to them.
The Government's argument has merit. Nevertheless, the Court concludes that there is no reason to order that the exhibits be withdrawn from evidence and require that all copies be returned to the Government. It is sufficient at this time that the exhibits, which have not been relied upon, remain under seal. The evidentiary hearing was scheduled in part because the Government did not submit affirmations in opposition to those submitted by Stewart's counsel claiming that a nonprosecution agreement existed. The Government agreed to the entry of the exhibits into evidence before any witnesses had been called. Moreover, there is nothing of substance in the exhibits that has not already been elicited from Fitzgerald in his testimony at the hearing, and that testimony is now in evidence. Because withdrawal of the exhibits is an unusual measure, because they remain under seal and cannot be used without court permission, and because they are now largely duplicative of Fitzgerald's testimony, the Court is not inclined to exercise its discretion to grant the Government's request.
CONCLUSION
For the reasons explained above, defendant Stewart's motion to dismiss the indictment on the grounds of a nonprosecution agreement is denied. The Government's request that the 26.2 material for Fitzgerald be returned to the Government is denied.
The Court has considered all of the other arguments raised by the parties. To the extent not specifically discussed above, they are either moot or without merit.