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uNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK-- --- - - - - - - - -- -- - - -- - -- - -- - - - - - - --- -- - - -- - -- -- - - - -- - - - -x
UNITED STATES OF AMERICA,
v. NOTICE OF MOTION
CHRISTIAN BROS. CONTRACTINGCORP. AND JASON VALE 02 C~tJ ~~\
t iLt.:1J~N aUERK's OFHCE
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u.~, D!!8TfHCT OOURT, ED.N.Y,
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Defendant.
- -- - - - - - -,- -- - - - - -- - - - -- -- --- -~ -- - - -- -- - -- - -- - - -- -- - -- - --x. ., -
PLEASE TAKE NOTICE, that the defendant JAS6RiC~~lfl'~9Kdl~r~ugh his attorney'
JAN A. ROST AL, ESQ., of the Federal Defender Division of the Legal Aid Society, and upon
the annexed declaration and all papers and proceedings heretofore and herein, will move the
Court, before the Honorable John Gleeson for the Eastern District of New York, 225 Cadman
Plaza East, Brooklyn, New York, on January 24,2003 at 3:00 p.m., for an Order:
- 1. Pursuant to the Fifth and Fourteenth Amendments to the US: Constitution, disIllissing
the Order to Show Cause, based on the government's failure to obtain an indictment;
n. Pursuant to the Fifth and Fourteenth Amendments to the US. Constitution, and
FR.Cr.P. 42(a)(3), disqualifying the Hon~John Gleeson and Charles Kleinberg, Esq., from this
case; and
m. Pursuant to the Federal Rules of Criminal Procedure, ordering the government to,
provide the defendant with a Bill of Particulars and with certain discovery; and
IV. Pursuant to the Fifth and Fourteenth Amendments to the US. Constitution,
suppressing statements made by the defendant as a civil deposition; and
V. Allowing defendant to make further motions after reviewing computerized discovery
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turned over too late to review prior to the filing of motions; and
VI. . Granting such other and further relief as the Court may deem just and proper.
DATED: BROOKLYN, N.Y.December 16, 2002
JAN A. ROSTAL, ESQ.FEDERAL DEFENDER DIVISIONTHE LEGAL AID SOCIETY16 COURT ST., 3RDFLOOR
. .BROOKLYN, N.Y. 11241ATTORNEY FOR DEFENDANTJason Vale
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TO: ASSISTANT U.S. ATTQRNEY Charles KleinbergCLERK Of THE COURTDEFENDANT
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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF .t\TEWYORK
-- - -- - - - - - - - -- --- - -- -- --- -- - - - ---x
UNITED STATES OF AMERICA,
v. AFFIRMA TION
CHRISTIAN BROS. CONTRACTINGCORP. AND JASON VALE 02 CR 466 (JG)
Defendant.--- -- -- --x
STATE OF NEW YORK)) sS.:
KINGS COUNTY )
JAN ROST AL, an attorney admitted to practice in this Court, affirms under penalties of
pe~jury pursuant to Title 28, United States Code, Section 1746, that:
1. I am a staff attorney at the Federal Defender Division of the Legal Aid Society and I
am assigned to represent the defendant in the above-captioned case, Jason Vale. This declaration
is made in support of Jason Vale's for relief in the NOTICE OF MOTION submitted herewith.
2. This at1irmation is based upon my review of the discovery provided by the
government, all court proceedings, and conversations with the prosecutor and my client.
3. This prosecution for criminal contempt arises out of the government's allegations that
Jason Vale violated a Preliminary and Permanent Injunction issued by this Court in April and
November, 2000. On November 24, 1999, the government filed a Civil Complaint, CV 99-7683,
against Mr. Vale and his corporation, requesting that they be enjoined from, among other things,
continuing to run their business of selling amygdalin products. The parties conducted discovery
pursuant to the Federal Rules of Civil Procedure, including Notice to Mr. Vale and the taking of
his deposition on April 14, 2000. At the time of the deposition, there were no pending criminal
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charges against T'v1r.Vale. I have reviewed the transcript of that deposition, and there were no
warnings gi ven to Mr. Vale of any contemplated criminal charges. I have also spoken with the
attorney who appeared on Mr. Vale's behalf at the deposition, and he tells me that the
government represented during the deposition that the deposition was being taken only for the
civil case and that there was at that time no active criminal investigation against Mr. Vale. The
parties agreed to an Order Granting Preliminary Injunctive Relief On Consent on April 20, 2000.
The parties agreed to an Order Granting Permanent Injunctive Relief on Consent on November
16,2000.
4. On April 16, 2002, the government filed an Order to Show Cause (OSC) why he
should not be held in contempt of court. The government did not prosecute MT. Vale by way of
indictment. The alleged contemptuous conduct involves the sale of apricot seeds and related
amygdalin products by persons whom the government contends were working on Me Vale's
behalf. See Government's Declaration In Support of Order to Show Cause.
5. The prosecutor who filed the OSC is Charles Kleinberg, Esq, an Assistant United
States Attorney for the Civil Division of the United States Attorney's Office. To my knowledge,
no Assistant United States Attorney for the Criminal Division has been involved in this case.
Me Kleinberg represented the ED.A. in its civil lawsuit against Mr. Vale for injunctive relief.
6. While the civil case was pending, the F.D.A. continued to conduct undercover
operations, and it will attempt to introduce evidence obtained in these operations in the criminal
contempt case.
7. At the defendant's request, the government has provided cel1ain discovery after the
defense visited the F.D.A. offices and reviewed some boxes containing physical evidence and
written materials seized pursuant to a search warrant. We requested copies of some of the
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materials, and those copies have numbered in the thousands. (While I have not personally
counted them, my eyeball estimate of the documents I have organized into binders suggests that
the discovery includes between 8,000 and 10,000 pages). These documents do not include the
physical evidence, of which there are several boxes of materials. The defendant also requested a
Bill of Particulars, which the government refused to answer. See Letter of Jan A. Rostal, dated
November 19, 2002; Letter of Charles Kleinberg, dated November 27,2002. Attached as Exhibit
A. As of this writing, the government contends that it has turned over "all Rule 16 discovery
materials, although it has been unclear whether the government fully understands its obligations
under Rule 16 (a)(l)(A) where it has charged both an individual and a corporation. After a
specific request was made under Rule 16(a)(1)(A) requesting that all discovery be provided under
the last section of the Rule (applying where the defendant is a corporation), Mr. Kleinberg
responded that "I am not turning over any discovery for Christian Bros., since nobody has
demanded that on behalf of Christian Bros. That can only be demanded by Christian Bros. itself
which must be represented and it's not in the case."
8. The government also agreed at our last status conference in October, 2002, to turn
over computers seized in a search of a residence in the year 2000. I expected to get copies of the
hard drives from the computers, but those copies were never forthcoming. Instead, the
government dropped off a number of computers at my office while I was on vacation during the
week of Thanksgiving. When I returned to the office on December 2, 2002, I had to consult with
a computer expert to detennine how to get the hard drive information out of the computers. My
expert tells me that this is going to take time, and I do not believe that I will receive the
information until January, 2003. I have no idea at this point how long it will take me to review
it. Once I have reviewed these materials, I my need to seek the Court's permission to file further
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motions.
9. The continuation of Mr. Kleinberg as the criminal prosecutor as well as the civil
attorney representing the FDA in the underlying presents various conflicts of interests as well as
unfair advantage. Among others, Mr. Kleinberg represents the government on Mr. Vale's
continuing obligations under the Permanent Injunction. Should Mr. Vale anyone associated with
him wish to file a civil action for modification or clarification of the injunction, the attorney
representing the FDA would presumably be Mr. Kleinberg.
10. Mr. Vale is a cancer survivor who attributes his recovery to the ingestion of apricot
seeds and the use of their related products. He continues to believe in the efficacy of the
products for both himself and others, based on his own experience, his religious convictions (he
believes that the Bible prescribes foods containing amygdalin), and his observations of others'
experiences. He may in the future wish to bring a civil action for clarification of the underlying
Injunction against him as it applies to his future conduct. I cannot represent Mr. Vale on any
civil action in this regard, and he would have to retain an attorney to do so. However, I do not
believe that the FDA can regulate "pure speech" on the subject. There is nothing in the FDCA to
prohibit pure speech, so long as it is not coupled with labeling or selling of products, and if the
issue were properly raised to the Court for clarification, I believe that Mr. Vale might prevail.
See, e.g., Thompson v. Westem States Medical Center, 122 S.Ct 1497 (2002) (pharmacies
brought action for declaratory relief against FDA Modemization Act, prohibiting advertising and
promotion of particular compounded drugs; provisions held unconstitutional rest11ctions of
commercial speech); Ashcroft v. Free Speech Coalition, Inc., 122 S.Ct 1389 (2002)
(pomographers brought action to enjoin prosecution against purveyors of vi11ual child pom; held
that application of law to vil1ual, as opposed to real, child porn violated the First Amendment);
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Conant v. Walters, 2002 WL 31415494 (9th Cir. 2002) (upholding injunction prohibiting
government from investigating physicians who recommend, but do not prescribe, medical
marijuana to patients).
Dated: Brooklyn, New YorkDecember 16, 2002
Signed and Sworn,
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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK
x
UNITED STATES OF AMERICA,
MEMORANDUM OF LAWv.
CHRISTIAN BROS. CONTRACTINGCORP. AND JASON VALE
02 CR 466 (JG)
Defendant.x
PRELThflNARYSTATEMENT
This prosecution for criminal contempt arises out of the government's allegations that
Jason Vale violated a Preliminary and Permanent Injunction issued by this Court in April and
November, 2000. The government has already taken the position that the case is serious enough
to warrant a jury trial. The alleged contemptuous conduct involves the sale and promotion of
apricot seeds and related amygdalin products in violation of the Food Drug and Cosmetic Act
(FDCA) by Mr. Vale, his corporation, and persons whom the government contends were working
on Mr. Vale's behalf.
Despite the grave consequences that the government believes Mr. Vale should suffer for
his involvement with these products-which are for the most part regulated by the Food and Drug
Administration (FDA) only to the extent that claims are made about their efficacy--it has
proceeded against Mr. Vale in a most unusual way.
Instead of conducting an investigation and turning the case over to the Criminal Division
of the United States Attorney's Office for prosecution under 21 U.S.c. sec. 331-the statute
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Congress enacted proscribing the very conduct the FDA sought to stop-the FDA chose instead to
embroil Mr. Vale in a lengthy and costly civil action to enjoin him from doing what the law
already apparently proscribed: selling apricot seeds while making claims they could treat, cure,
or mitigate disease.
The government's strategy was clever. In the civil proceeding, Mr. Vale had retain
counsel. Prolonged litigation with the FDA would have cost him more than he could afford to
stay in business. That the government fully expected Mr. Vale to violate the order is clear from
the fact that it continued undercover operations throughout the pendency of the civil litigation.
Nearly two years after the end of the civil case, the government brought this contempt
action by way of an Order to Show Cause (OSC) rather than by indictment despite having
acknowledged the serious penalties for the crime alleged. The government attorney who pursued
the contempt charges, Charles Kleinberg, is an Assistant United States Attorney from the Civil
Division who was intimately involved in the underlying civil action, and whose name appears as
representing the FDA on both the Preliminary and Permanent Injunctions. Furthering the
appearance of a conflict of interest, the government did not put the case in the "wheel" for
random selection of judges, but rather brought the case directly before Your Honor, knowing that
this Court had presided over and made rulings concerning the very Injunctions that will be at
issue in the contempt case.
Finally, the government has pressed for an early trial date knowing that the only party
unfamiliar with the underlying civil litigation is defense counsel, and has even denied defense
counsel the most rudimentary information she needs to mount a defense, such as when, where,
and by and to whom the apricot seeds were sold.
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Based on all of these concerns, the defense most respectfully submits the following
motions for the Court's consideration. We also request the opportunity to present any further
motions that become apparent after defense counsel has had an opportunity to review computer-
generated discovery material provided by the government too late to review prior to the motions
filing deadline.
MOTION TO DISMISS ORDER TO SHOW CAUSE BASED ON GOVERNMENT'SBYPASSOFTHEF~THAMENDMENTGRANDJURYCLAUSE
The first question presented in this motion is whether the defendant in a serious criminal
contempt proceeding should have the right to be indicted by a Grand Jury. Although other
motions (such as the Motion to Disqualify, discussed below) might logically be considered first,
the issue of what constitutional procedures applies in a contempt case informs the remaining
motions, and it will be discussed first.
It is clear under the United States Supreme Court precedent that an accused contemnor is
entitled to fundamental fairness as guaranteed under the Fifth and Fourteenth Amendments to the
Consititution. We respectfully submit that a recent Supreme Court trend toward procedurally
conforming serious criminal contempt cases to other criminal cases supports the Grand Jury right
as necessary to guarantee fundamental fairness.
The Fifth Amendment to the United States Constitution states: "No person shall be held
to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger." Federal Rule of Criminal Procedure 7 also states that
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an offense which may be punished by imprisonment for a term exceeding one year or at hard
labor shall be prosecuted by indictment.
In early discussions concerning which constitutional rights apply in a criminal contempt
prosecution, the United States Supreme Court stated that the Grand Jury Clause does not. Green
v. United States, 356 US. 165, 187,78 S.Ct. 632, 645, 2 L.Ed.2d 672 (1958). Nevertheless, the
rule in Green v. United States, supra, has been undermined, if not overruled, by more recent
Supreme Court decisions, particularly Bloom v. illinois, 391 US. 194,88 S.Ct. 1477,20 L.Ed.2d
522 (1968), where the Supreme Court held that jury trials are indeed constitutionally required
under the Fifth and Fourteenth Amendments in serious criminal contempt cases. See also Taylor
v. Hayes, 418 US. 488,500 (1974). The Bloom decision calls Green into serious question, as
Green itself relies upon a long line of cases holding that no jury trial is constitutionally required
in criminal contempt-a proposition Bloom reversed. 356 U.S. at 183 n.14, 187,78 S.Ct. at 643
n.14,644-645.
In reversing the earlier decisions, the Bloom Court acknowledged that the historical view
of contempt as wholly distinct from other types of "crime" had to fall in the face of fundamental
fairness:
Given that criminal contempt is a crime in every fundamental respect, the question iswhether it is a crime to which the jury trial provisions of the Constitution apply. We holdthat it is, primarily because in terms of those considerations which make the right to jurytrial fundamental in criminal cases, there is no substantial difference between seriouscon tempts and other serious crimes. Indeed, in contempt cases an even more compellingargument can be made for providing a right to jury trial as a protection against thearbitrary exercise of official power. Contemptuous conduct, though a public wrong, oftenstrikes at the most vulnerable and human qualities of a judge's temperament. Even whenthe contempt is not a direct insult to the court or the judge, it frequently represents arejection of judicial authority, or an interference with the judicial process or with theduties of officers of the court.
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Bloom v. State of Illinois, 391 U.S. 194,202 (1968).1
More recently, the Supreme Court further extended the right to a jury trial in a case where
the trial court tried to avoid one by characterizing a multimillion dollar fine against a union for
violating an injunction as "civil" rather than "criminaL" United Mine Workers v. Bagwell, 512
U.S. 821 (1994). The United Mine Workers case settled the rule that petty summary contempt
procedures are now permissible only when the contempt occurs in the court's presence (and thus
must be dealt with immediately to maintain order and judicial authority). United Mine Workers,
supra, at 832. However, even where the contempt is committed in the court's presence, it cannot
deny the contemnor the right to trial by jury if he delays punishment until the end of the trial.
See Taylor v. Hayes, 418 U.S. 488, 496-503 (1974).
l In a recent article, Professor Robert Pushaw describes the Supreme Court's evolutionbetween Green and Bloom, noting that
in his dissent in Green, Justice Black chided the Court for distorting Englishhistory and ignoring that the Constitution's criminal procedure provisions(including those guaranteeing a jury trial) cQntained no exception for contempt.Moreover, he rejected a claim of inherent power, as courts would never truly needto act with "special dispatch in punishing criminal contempts, especially thoseoccurring beyond the courtroom(:]" "(N]ecessity," if it can justify at all, must atleast refer to a situation where the extraordinary power to punish by summaryprocess is clearly indispensable to the enforcement of court decrees and theorderly administration of justice. Or as this Court has repeatedly phrased it, thecourts in punishing contempts should be rigorously restricted to the "least possiblepower adequate to the end proposed." Here the trial judge had used summaryprocess merely because it was "convenient or desirable"-- i.e., "faster and cheaperthan a jury." The Constitution, however, required impartial juries to ensurejustice--an especially compelling need in the crime of contempt, where judgeswere often biased and could not be effectively checked. A decade later, the Courtaccepted Justice Black's reasoning, overruled Green, and held that theconstitutional right to a jury trial for serious criminal contempts outweighedconcerns for preserving judicial independence, dignity, and efficiency.
Pushaw, Robert 1., Jr., "The Inherent Powers of Federal Courts and the Structural Constitution,"86 Iowa Law Rev. 735, 771-72 (March 2001).
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The United Mine Workers Court stressed that the contempt power is "uniquely. . . liable
to abuse." United Mine Workers, 512 US. at 831 (quoting Bloom, 391 U.S. at 202 and Ex parte
Terry, 128 U.S. 289 (1888). "Unlike most areas of law, where a legislature defines both the
sanctionable conduct and the penalty to be imposed, civil contempt proceedings leave the
offended judge solely responsible for identifying, prosecuting, adjudicating, and sanctioning the
contumacious conduct." United Mine Workers, 512 U.S. at 831. The United Mine Workers
Court also discussed the different types of contempt, and appears to conclude that in the unique
case of indirect contempt involving "out-of-court disobedience to complex injunctions," the most
pressing case can be made for the full ballast of criminal procedural protections to "protect the
due process rights of the parties and prevent the arbitrary exercise of judicial power. Id. at 834.
Perhaps of even greater significance to Mr. Vale's case is Young v. United States ex reI.
Vuitton, 481 US. 787,808 (1987). In Young, the district court appointed Vuitton's own
attorneys to prosecute a criminal contempt charge of violating the court's injunction prohibiting
Young from infringing Vuitton's trademark. While acknowledging that federal judges have
inherent power and discretion to appoint a private prosecutor to vindicate the Court's authority to
punish disobedience of their orders, the Court held that the attorney appointed cannot be an
interested party (i.e., the attorney representing the beneficiary of the order allegedly violated).
Young, 418 US. at 804-09. 2
2 In his concurrence, Justice Scalia argued that courts had no "judicial power" toprosecute, either directly or by appointment, disobedience of their judgments (includinginjunctions). Young, id. at 815-825 (Scalia, J. concurring in the judgment). Justice Scaliaappears to take a distinct view toward criminal contempt cases that would require even moreprocedural protections than the Court's majority has explicitly afforded. In his Youngconcurrence, Justice Scalia writes: "That one and the same person should be able to make therule, to adjudicate its violation, and to assess its penalty is out of accord with our usual notions of
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The Young case is particularly instructive on the question of whether Green should be
considered overruled by the Supreme Court and the defendant viewed as constitutionally (at least
through the Fifth and Fourteenth Amendments) guaranteed the right to be indicted by a grand
jury. We submit that Young further solidifies the Supreme Court's evolving approach toward
applying the traditional checks and balances inherent in our criminal justice system to contempt
cases. In reaching its conclusion requiring an independent prosecutor, the Young Court stated:
It is a fundamental premise of our society that the state wield its formidablecriminal enforcement powers in a rigorously disinterested fashion, for liberty itselfmay be at stake in such matters. We have always been sensitive to the possibilitythat important actors in the criminal justice system may be influenced by factorsthat threaten to compromise the performance of their duty.
418 U.S. at 810.
Thus, the Supreme Court has stated that a defendant in a serious contempt case has a right
fairness and separation of powers." Id. at 841. Indeed, Justice Scalia's opinions in theenforcement of injunctions and the contempt area reflect a "profound suspicion of expansiveinterpretations of judicial power." Slotnick, David M., "Justice Scalia and His Critics: AnExploration of Scalia's Fidelity to His Constitutional Methodology," 48 Emory L.J. 1377, 1429(Fall 1999). See Lewis v. Casey, 518 U.S. 343, 362 (1996) (Justice Scalia writing for themajority stated that "the injunction imposed by the District Court was inordinately--indeed,wildly--intrusive [I]t is the ne plus ultra of what our opinions have lamented as a court's 'in thename of the Constitution, becom [ring] ... enmeshed in the minutiae of prison operations." ');Madsen v. Women's Health Ctr. Inc., 512 U.s. 753, 815 (1994 (Scalia, J.,concurring in part,dissenting in part) (describing a "misguided trial court injunction" permitted by the Court as a"powerful loaded weapon lying about"); United Mine Workers v. Bagwell, 512 U.S. 812, 842(1994) (Scalia, J, concurring) (criticizing contemporary court that "routinely issue complexdecrees which involve them in extended disputes and place them in continuing supervisory rolesover parties and institutions" without historical foundation); Harper v. Virginia Dep't ofTaxation, 509 U.S. 86, 106-07 (1993) (Scalia, J., concurring) (supporting "traditional view. . .that prospective decision making is quite incompatible with the judicial power" and is clearly a"practical tool of judicial activism.").
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to criminal procedural protections that include the most fundamental to our system. Bloom,
supra. It has also been careful to focus on the particular need for those protections in cases
involving out-of-court violations of complex injunctions. United Mine Workers, supra. And,
finally, the Court has reiterated the unique threats to liberty present in contempt cases, and the
resulting heightened need for prosecutorial disinterest. Young, supra.
The trend signaled by the Supreme Court in these modem cases appears to answer
affirmatively the question of whether fundamental fairness requires the insertion of a Grand Jury
as a check on the discretion of an interested prosecutor who represented the plaintiff in the civil
lawsuit, and the power of the Court whose Order was allegedly violated.3 By bypassing the
Grand Jury process, the prosecutor has asked the very Court which issued the order to pass on
whether there is probable cause to believe the order was violated. As in Bloom, an "even more
compelling argument can be made for providing a right" to be indicted by a grand jury "as a
protection against the arbitrary exercise of official power." 394 US. at 202. The Court should
not be placed in the position of victim, judge, and Grand Jury all at once.
One last point should not be forgotten. The defendant is charged with having engaged in
conduct that Congress has independently described as a crime. 21 US.c. §331. The prosecutor,
presumably unhappy with the one year, or at most, three year, maximum incarceratory penalty
Congress associated with that crime, chose to charge him with contempt, a crime carrying no
statutory maximum at all. 18 U.S.C. § 403. The fact that the very conduct that the government
3 We note that there are many reported cases in which the grand j ury process has beenused, without discussion, in criminal contempt cases. See,~, US. v. Duncan, 502 F2d 1021(1oth Cir. 1974) (contemnor indicted by grand jury on charges of violating inj unction against him
by the SEC); US. v. Neely, 966 F2d 1445 (4th Cir. 1992) (unpublished); US. v. Sweeny, 52FSupp 2d 164 (D.Mass. 1999); US. v. Brummitt, 503 FSupp 852 (D.C.Texas 1980).
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claims gives rise to the contempt charge is itself a crime suggests that the prosecutor is
attempting to circumvent both the applicable punishments and the constitutional process that
would apply without question had he charged 21 U.S.C. §331.
MOTION DISQUALIFY THE DISTRICT COURT JUDGE WHOIS THE VICTIM OF THE CHARGED CRIME
AND APPOINTMENT OF A DISINTERESTED PROSECUTOR
Under the unique circumstances of this case and the authority cited above, the defendant
respectfully moves for disqualification of both the Judge and the prosecutor, as both were
involved in the underlying civil litigation.
As to the question of judicial disqualification, we are mindful of F.R.Cr.P. 42(a)(3).
While Rule 42(a)(3) does not require disqualification except where the contempt involves
"disrespect to or criticism of a judge," there may be cases "in which it is the better practice to
assign a judge who did not preside over the case in which the alleged contumacy occurred to hear
the contempt proceeding." Nilva v. U.S., 77 S.Ct 431 (1957) (discussing F.R.Cr.P. 42(b), the
predecessor to F.R.Cr.P. 42(a)(3)). Furthermore, in the Nilva dissent, Justice Black, joined by
then Chief Justice Warren, Justices Douglas and Brennan, wrote:
The majority relies on [Rule 42(b)'s] silence to reject petitioner's contention that the trialjudge here should have stepped aside. . . But at most Rule 42(b) only permits a negativeinference that a judge who prefers contempt charges for violations of his orders and whois intimately involved in related proceedings bearing on these charges can sit in judgmenton the alleged contempt. In any event, Rule 42(b) is a rule promulgated by this Court andwhere it is not explicit we should not interpret it in a manner to deny a fair trial before animpartial arbiter.
Nilva, 77 S.Ct. at 404 (Black, J. dissenting); see also Mayberry v. Pennsylvania, 91 S.Ct 499,
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505 (1971) (in in-court contempt case, "[o]ur conclusion is that by reason of the Due Process
Clause of the Fourteenth Amendment a defendant in criminal contempt proceedings should be
given a public trial before a judge other than the one reviled by the contemnor."); U.S. v. Martin-
Trigona, 759 F.2d 1017,1025 (2d Cir. 1985) (suggesting that where contempt is not summary,
i.e. the trial and sentence for contempt can be delayed until after trial on the underlying matter,
"the desirable procedure is to cite the indi vidual and refer the contempt charge to another
judge").
Even if viewed as discretionary, judicial disqualification seems particularly appropriate
where, as here, the defendant has been charged in an Order to Show Cause, thus bypassing the
Grand Jury's neutral role in passing upon the question of whether probable cause exists to charge
the defendant. The Court was also privy to information submitted in the underlying civil case in
support of the original complaint, and during the ongoing litigation, that is beyond the time
period charged in the indictment. It presents an appearance of impropriety for this Court, which
has viewed evidence in the civil case that is inadmissible in the criminal case, to preside over the
criminal matter.
Once again, the Young case, discussed supra, represents a shift in the Supreme Court's
view of contempt cases that supports the defense position that both this Court and the prosecutor
ought to disqualify themselves. Specifically as to the continuation of the same prosecutor who
represented the plaintiff in the civil case, theYoung Court held that "counsel for a party that is the
beneficiary of a court order may not be appointed as prosecutor in a contempt action alleging a
violation of that order." Young v. United States ex reI. Vuitton, 481 U.S. 787, 809 (1987).
In United States v. Terry, 17 F.3d 575 (2d Cir. 1994), the Second Circuit considered the
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question of whether the Supreme Court's ruling in Young extended to the appointment of a
government attorney as the contempt prosecutor. In Terry, the government attorney was the
Attorney General for the State of New York, who had litigated the underlying petition for
injunctive relief. The Young court reviewed two post- Young cases, S.E.c. v. Carter, 907 F.2d
484 (5th Cir. 1990) and F.T.C. v. American National Cellular, 868 F.2d 315 (9th Cir. 1989), both
of which held that Young's concerns may be implicated by appointment of a government
attorney as prosecutor in a contempt proceeding. The Terry court ultimately sided with the Ninth
Circuit in American National Cellular, finding that while Young "does not automatically
disqualify government attorneys who bring a civil action from serving as special prosecutors in a
subsequent contempt proceeding," the unique facts and circumstances of a given case may give
rise to disqualification. Terry, 17 F.3d at 578.
We respectfull y submit that the Young: case compels a finding that because Charles
Kleinberg, Esq. represented the F.D.A. in the underling civil action, and continues to do so, he
represents an interested party and is not the sort of disinterested attorney contemplated under
Young. Once cast in his role as advocate for his client, the F.D.A., and embroiled in civil
litigation, Mr. Kleinberg loses his ability to distinguish between his duty to the public in even-
handedly enforcing the law and his obligations to his client in advancing their interests.
Moreover, he continues to represent the F.D.A. on the ongoing enforcement power over the
Permanent Injunction, and could unfairly use information obtained in one case to gain leverage in
further civil proceedings against Mr. Vale, or anyone else it claims is or was involved with him.
Mr. Kleinberg has already suggested in court proceedings that he is continuing to monitor
the defendant's compliance with the outstanding Injunction. Moreover, we have asked the Court
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and the government for some clarification of whether Mr. Vale would be violating the injunction
if he engages in public discussions regarding his personal belief in amygdalin products and their
role in his personal struggle with cancer. The government has not been specific as to what "pure
speech" it would consider violative of the injunction. To the extent that there are outstanding
issues about the terms of the Injunction, or any possible action for modification or clarification,
Mr. Kleinberg continues to represent the F.D.A. in the underlying civil action. This presents a
conflict of interest, as he would have access to information in negotiations in the civil case that
he should not have in the criminal case.
Moreover, Mr. Kleinberg possesses leverage as the criminal prosecutor that could be
overbearing in any civil negotiations. See Terrv, 17 F.3d at 578 (Attorney General was not
involved in the type of simultaneous activity in both the civil and criminal cases that would give
him an unfair advantage in either proceeding.) Unlike the injunction in Terry, which covered
precise conduct during a five day period that had long passed at tbe time the criminal contempt
case was filed, the injunction against Mr. Vale has no time limits and covers a wide array of
activity. The Terry court found "quite significant" to its holding the fact that the civil case was
essentially completed (as it had to be given that it enjoined conduct during a limited time period).
That factor is not present in this case.
Finally, the Permanent Injunction in the civil case requires the defendant to pay attorney's
fees, expert witness fees, investigational expenses, travel expenses incurred by witnesses, and
other costs should "plaintiff. . . prevail in, a civil or criminal contempt action arising out of a
violation of the terms of this Decree." See Consent Decree of Permanent Injunction, 99 CV
7683, filed 11/17/00.
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We do not go so far as to request disqualification of the United States Attorney's Office
altogether. We believe, however, that a disinterested attorney from the Criminal Division of the
U.S. Attorney's Office who has not been involved in the underlying civil litigation ought to be
assigned to the case. This is an important and reasonable limitation on the defendant's request,
and our reading of Young, which would ensure conflict-free lawyering while not limiting the
Executi ve Branch's authority.
In summary, where both the judge and the prosecutor were intimately involved in the
underlying civil litigation, notions of fundamental fairness and the need to avoid even the
appearance of impropriety compel the requested disqualifications. While Young did not
specifically discuss the standards for disqualification of the judge in these circumstances, it
notably indicated an even greater degree of sensitivity to judicial conflicts than for prosecutoIial
conflicts. See Young, 481 U.S. at 810 (suggesting that unmoved that the "standards of neutrality
for prosecutors are not necessarily as stringent as those applicable to judicial. . officers."). Id. at
810.
MOTION FOR BILL OF PARTICULARS
The government has refused to provide information the defendant needs to prevent
surprise and prepare for trial. The precise questions put to the government are contained in the
November 19, 2002 discovery letter (attached to Affirmation of Jan A. Rostal as Exhibit A).
A bill of pm1iculars functions to provide a defendant with such details of the charge
against him that are "necessary to the preparation of his defense and to avoid prejudicial surprise
at the trial." See 1 C. Wright, Federal Practice and Procedure: Criminal 2d §129 at 434-35 (2d
ed. 1982). As the Second Circuit has explained: "A bill is appropriate to permit a defendant to
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identify with sufficient particularity the nature of the charge pending against him, thereby
enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double
jeopardy should he be prosecuted a second time for the same offense." U.S. v. Davidoff, 845
F.2d 1151,1154 (2d Cir. 1988). Here such a bill is appropriate.
The OSC's lack of detail leaves Mr. Vale unable to determine the charges against him as
required by due process and significantly impairs his ability to defend against them. It also
limits his ability to plead his acquittal or conviction in bar of any further prosecution of the same
offense. Accordingly, the motion for a bill of particulars should be granted.
In United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987), the Second Circuit
explained:
Rule 7(f) of the Federal Rules of Criminal Procedure permits adefendant to seek a bill of particulars in order to identify withsufficient particularity the nature of the charge pending againsthim, thereby enabling the defendant to prepare for trial, to preventsurprise, and to interpose a plea of double jeopardy should he beprosecuted a second time for the same offense.
Id. at 574 (citations omitted). Each concern applies here.
Mr. Vale has asked the government for 9 separate particulars. These requests fall into
three general categories: (1) those seeking to determine the dates of the contemptuous acts, the
particular product sold (and its relation to the scientific analyses), and the nature of the
transactions (Bill of Particulars Request, l(a)-(c),(e),(f), attached to Rostal Affirmation as
Exhibit A); and (2) those seeking to establish the details of how Mr. Vale purportedly "caused"
the introduction of products subject to the injunction (Bill of Particulars Request, l(d), attached
to Rostal Affirmation as Exhibit A); and (3) those seeking to determine the means by which the
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government claims Mr. Vale "promoted" products in violation of the injunction, (Bill of
Particulars Request, 2(a)-(c), attached to Rostal Affirmation as Exhibit A).
Dates/Products/Transactions Request
During the nearly two year time period covered by the OSC (April, 2000 and January,
2002), Mr. Vale was engaged in the business of selling nutritional supplements. The government
has turned over to the defense thousands of pages of documents it seized. Most of these relate to
this and other businesses, and it is clear that the government does not claim that all of them relate
to the contemptuous acts covered by the Osc. The volume of material leaves it to the defense to
sort through which documents relate to business transactions that the OSC addresses.
We must be apprised of the specific transactions or communications that make out a
crime. The "who, what, when, and where" of how Mr. Vale violated the injunction must be
specified, for proof of the offense requires the government to show that Mr. Vale knew or had
reason to know that the specific act fell within the purview of the injunction. This is not a charge
involving a conspiracy or a "scheme to defraud." On the contrary, it alleges discrete violations of
the Injunctions without pinpointing them by time, place, or person.
The Court is experienced in trials of drug cases prosecuted by the Criminal Division of
the United States Attorney's Office for the Eastern District where the government routinely sets
forth when and where drug deals took place. Presumably this is because it would be unfair to
expect the defense to wait until trial to find out what dates these details out. Counsel must be
able to discuss with her client, prior to trial, the specific transactions alleged to be illegal, and to
explore any defenses that may be available to him with respect to each transaction. Moreover,
the government has provided scientific analyses of products without any information about when
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and where these products were recovered, sold, or obtained. If the government fails to specify
the particular contemptuous transactions or communications, we must be prepared to defend any
single transaction or communication over a nearly two year period in both his business and
others-an impossible task. Furthermore, without more specification, we have no future ability to
bar future prosecutions that could arise out of that time period.
Requests Relating To "Causing" the Violations
With regard to Counts One and Two of the OSC, the government will have to prove that
Mr. Vale was either introducing or "causing to introduce" certain products into interstate
commerce in violation of the FDCA. The nature of how Mr. Vale "caused" the products to
be introduced is not detailed in the OSC. Does the government contend that he personally took
orders, or that he someone else took the order and he facilitated it? And if they are referring to
someone else, we should know by whom and when the order was taken.
Again, without some direction as to "who, what, where and when" this "causing" took
place, counsel cannot properly discuss the matter with her client, nor can she prepare a defense.
Requests Relating to "Promotion"
In Counts Three and Four, the government will have to prove that Mr. Vale "promoted"
products in willful violation of the preliminary and permanent injunctions. Again, the way in
which the government claims Mr. Vale effected this "promotion" is not set forth in the OSc.
Without some specification of what precisely the government will claim Mr. Vale said or did that
violates the injunctions, counsel cannot properly discuss the matter with her client, nor can she
prepare a defense. Must we be prepared to justify every conversation or writing he has made
over that time period?
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It must be stressed that this is not a situation in which the defendant is seeking revelation
of "the precise manner in which the crime charged in the indictment is alleged to have been
committed." United States v. Biaggi, 676 F. Supp. 790, 809 (S.D.N.Y. 1987), citing United
States v. Andrews, 381 F.2d 377,377-78 (2d Cir. 1967), cert. denied, 390 US. 960 (1968);
United States v. Carroll, 510 F.2d 507,509 (2d Cir. 1975), cert. denied, 426 US. 923 (1976).
Rather, Mr. Vale is seeking the most rudimentary sort of information concerning the charges
against him: which of his acts are alleged to have been criminal, and when and with whom they
are alleged to have been committed. Cf. United States v. Atkins, 661 F. Supp. 491 (S.D.N.Y.
1987) ("The defendants know from the indictment the nature of the deception, and also know
when they gave (or failed to give) information to its auditors," and therefore a bill of particulars
was not necessary.) with US. v. Fischbach and Moore, Inc. 576 F.Supp 1384, 1389 (D.C.Pa.
1983) ("We do not believe that it will unreasonably limit the government's case to require
identification of which contracts are alleged to be the subject of the conspiracy to allocate bids
among defendants, having bid prices fixed, or for which noncompetitive, collusive and rigged
bids were submitted, and/or on which defendants and co-conspirators refrained from bidding
pursuant to the alleged conspiracy.). Such information cannot be gleaned from this OSc.
The Second Circuit reversed convictions based upon a trial court's denial of the
defendant's bill of particulars in a case where the defendants were indicted for allegedly engaging
in a scheme to defraud the Federal Emergency Management Administration and the New York
Property Insurance Underwriting Association through the submission of false and inflated
insurance claims for, inter alia, burglary losses. United States v. Bortnovsky, 820 F.2d 572 (2d
Cir. 1987) The trial court should have required the government to identify "which of appellants'
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insurance claims for burglary losses were fraudulent and which of the many invoices submitted
to substantiate these claims were falsified." Id. at 573-574. As a result of the court's failure to do
so, the defendants were forced, at trial, to explain the circumstances of eight actual robberies and
to confront numerous documents unrelated to the charges, thus effectively and impermissibly
shifting the burden of proof from the Government to the defendant. Id. at 574-575.
Absent clear and specific identification of his supposed wrongful acts, Mr. Vale could be
placed in the untenable position of having to demonstrate the legitimacy of every transaction he
made, every conversation he had, and every written document he was associated with, during the
period covered by the OSC. Additionally, he could have to explain the circumstances of his
relationships with other people with whom the government dealt in an undercover capacity, to
prove that they were not the bases of showing violations of the injunctions. This is burden-
shifting and is impermissible.
In United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988), the Second Circuit again
reversed convictions based on the trial court's denial of a motion for a bill of particulars. In that
case, the defendants requested a bill of particulars concerning unspecified RICO violations
alleged in the indictment. Id. at 1153. The district court denied the motion, suggesting that the
bill of particulars would reveal the Government's proof and that some of the information
requested was already contained in documents provided to the defendants. Id. At trial, the
Government was permitted to introduce evidence concerning certain alleged extortions of three
companies which were not identified in the indictment. Id. The Second Circuit reversed, stating
that "it is simply unrealistic to think that a defendant preparing to meet charges of extorting funds
from one company had a fair opportunity to defend against allegations of extortions against
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unrelated companies." Id. at 1154. Furthermore, the Circuit concluded that the Government was
not excused from its obligation to inform the defendants of the charges against them merely
because it turned over some 6,000 pages of Jencks material. The volume of material was so great
and the references in the materials were too oblique to provide notice of one of the extortions;
further, the materials completely failed to mention the other two alleged extortion victims
altogether. Thus, the Court concluded that a bill of particulars should have been granted, and
reversed the convictions.
Here too, the government cannot hide behind the reams of documents provided in
discovery to cure the OSC's lack of specificity:
While the practice of voluntary discovery is to be encouraged, andin any event is required by Local Rule 18(b), it may not substitutefor straightforward identification in a bill of essentials matters thatthe defendant needs to avoid surprise at trial, to interpose a plea ofdouble jeopardy and to know "with sufficient particularity thenature of the charges against him." United States v. Bortnovsky,820 F.2d at 574.
United States v. DeGroote, 122 F.R.D. 131, 143 (W.D.N.Y. 1988).
Mr. Vale has a right to know the precise nature of the charges against him-at a bare
minimum he should be ready to defend against particular transactions that the government will
contend at trial violated the injunction. Accordingly, the Court should grant the motion and
direct the government to file a bill of particulars.
MOTION FOR PRODUCTION OF WITNESS STATEMENTS
The Defendant has moved under Rule 16(a)(1)(A) for all statements for production of all
statements of the defendant in both his individual capacity and as a corporation.
Under Rule 16(a)(1)(A), "where the defendant is a corporation, the government must
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disclose to the defendant any of the foregoing statements made by a person who the government
contends (1) was, at the time of making the statement, so situated as a director, officer, employee,
or agent as to have been able legally to bind the defendant in respect to the subject of the
statement; or (2) was, at the time of the offense, personally involved in the alleged conduct
constituting the offense and so situated as a director, officer, employee, or agent as to have been
able legally to bind the defendant in respect to that alleged conduct in which the person was
involved."
This discovery request includes all statements of persons whom the government will
claim at trial are, or were at the time the statements were made, employees of Mr. Vale or
Christian Brother's Inc. In the alternative, the Defendant has moved for all Brady material, and
we believe that this request specifically encompasses all statements by current or former
employees of Jason Vale or Christian Brothers who stated that Mr. Vale was not personally
involved, or was unaware, of the acts alleged in the OSC. U.S. v. Bestway Disposal Inc., 681
FSupp. 1027 (W.D.N.Y 1988).
The defendant has received no Rule 16 discovery containing statements of employees or
agents of the corporation regarding Mr. Vale's or the corporation's involvement in any of the
sales or promotion of amygdalin products. Nevertheless, the Declaration Attached to the OSC
states that the FDA agent "learned from a cooperating witness. . ." certain information that
implicated Mr. V ale in the crime. Declaration in Support of OSC, 17. This information from
witnesses who are employees or agents of Mr. Vale, must fall at the very least into Rule
16(a)(1)(A)(2). The government takes the position that we are not entitled to receive the
requested discovery because it was not requested by "Christian Bros. attorney." For all intents
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and purposes, the undersigned counsel has been assigned to represent the defendant in this action
and is entitled to the requested discovery. We ask the Court to order the disclosure of all agent or
employee statements that fall within the meaning of this rule.
MOTION TO SUPPRESS STATEMENTS MADE IN CIVIL DEPOSITION
During the pendency of the civil case against him brought by the FDA, Mr. Vale was
deposed pursuant to the Federal Rules of Civil Procedure. Had he refused to attend the
deposition he could have been held in contempt. F.R.C.P 45(e). Had he asserted his rights under
the Fifth Amendment, adverse inferences could have been drawn against him. Baxter v.
Palmigiano, 425 U.S. 308 (1976) (pointing to "the prevailing rule that the Fifth Amendment does
not forbid adverse inferences against parties to civil actions when they refuse to testify in
response to probative evidence offered against them"); see also SEC v. Muella, 578 F.Supp. 425
(S.D.N.Y. 1984) (the court may consider defendants' assertion of Fifth Amendment privilege as
a factor in determining whether the SEC is entitled to preliminary injunctive relief against future
violations of the securities laws). In some civil cases, summary judgment can be a consequence
of a defendant's assertion of the Fifth Amendment. US. v. Certain Real Property, 55 F.3d 78,83
(2d Cir. 1995). In other words, a "party who asserts the privilege against self-incrimination must
bear the consequence of lack of evidence," United States v. Taylor, 975 F.2d 402,404 (7th
Cir.1992), and the claim of pri vi lege will not prevent an adverse finding or even summary
1----- judgment if the litigant does not present sufficient evidence to satisfy the usual evidentiary
burdens in the litigation. US. v. Certain Real Property, 55 F.3d at 83.
In Garritv v. New Jersey, 385 US. 493 (1967), the Supreme Court held that the
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Fourteenth Amendment's protection against coerced statements prevented the use in later
criminal proceedings of answers the defendant police officers gave to official inquiries made in
earlier civil proceeding Id. at 500. Before being questioned in the civil investigation, the
policemen were advised of the their rights to remain silent, but that if they refused to answer they
could lose their jobs. Id. at 494. In reaching its conclusion, the Court reasoned that the Fifth
Amendment right could not be so burdened:
There are rights of constitutional stature whose exercise a Statemay not condition by the exaction of a price. Engaging ininterstate commerce is one. Western Union Tel. Co. v. State ofKnasas, 216 U.S. 1,30 S.Ct. 190,54 L.Ed 355. . . . We now holdthat the protection of the individual under the FourteenthAmendment against coerced statements prohibits use in subsequentcriminal proceedings of statements obtained under threat ofremoval from office, and that it extends to all, whether they arepolicemen or other members of our body politic.
Id. at 500.
Mr. Vale's assertion of his Fifth Amendment privilege in the deposition was
unconstitutionally burdened by the threat of losing his livelihood and his right to engage in
interstate commerce. He had to chose between his right to remain silent and inviting negative
consequences in the civil case such as adverse inferences and possible summary judgment.
The case of U.S. v. Kordel, 397 U.S. 1 (1970), is distinguishable. There, a corporation
and two of its officers were charged with violations of the FDCA, while the government brought
a nearly contemporaneous civil condemnation proceeding. Id. at 764. The FDA submitted
interrogatories to the defendant in conjunction with the civil seizure proceedings, but gave the
defendants notice of the potential criminal procedures. Id. at 3-6. Despite the risk of criminal
prosecution the defendants answered the interrogatories, and the Supreme Court found that they
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had waived their Fifth Amendment rights.
Unlike the defendants in Kordel, the government gave Mr. Vale no notice of his exposure
to criminal charges and the fact that his statement could be used against him. While we concede
that he was not in custody and that warnings were not required under Miranda, the Garrity
reasoning is based upon the Due Process clause. Here, as in Garrity, Mr. Vale's Fifth
Amendment right was impermissibly burdened by the adverse consequences of asserting it-he
could lose his business and his right to engage in interstate commerce. Unlike the defendants in
Kordel, however, the government was not careful to ensure that he understood the even more dire
consequences of waiving his right to remain silent.
The deposition testimony should therefore be suppressed in this criminal proceeding.
23
I