Informal Response Brief by USA in U.S. Court of Appeals for the Fourth Circuit in case no.: 09-7572

1

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...

GOVERNMENT’S RESPONSE TO INTERVENOR/APPELLANT’S 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 Senator’s 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

Case: 09-7572 Document: 26 Date Filed: 09/30/2009 Page: 1

The government is aware of the reasons for the sealing of three separate1

categories of documents, but believes there may be other items under seal to whichit was not privy.

2

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. When1

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. Bond’s 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.


3

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


4

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. Bond’s 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


The following redactions relate to the specific witness issue:2

1. Redactions on pages 1-2 of Defendant’s Motion for Discovery andContinuance (Doc. #119), filed on February 26, 2007;

2. Redactions on pages 11-12 of Defendant’s Sealed Motion to Dismiss theSuperseding Indictment for Prosecutorial Misconduct and Memorandum inSupport (Doc. # 120), filed on February 26, 2007;

3. The redaction on page 8, line 13 of the transcript of the March 6, 2007hearing;

4. The redaction on page 12 of the Government’s Opposition toDefendants’ Sealed Motion for Discovery and Continuance (Doc. #122), filed onMarch 2, 2007;

5. The redaction on page 3, footnote 2, of the defendants’ Supplement toMotion for Discovery and Continuance (Doc. #115), filed on March 2, 2007;

6. The redaction on pages 1-2 of the defendants’ Omnibus Motion forContinuance (Doc. # 116), filed on March 2, 2007; and

7. The second redaction on page 2 and the redactions on page 7 of theGovernment’s Opposition to Defendants’ Motion to Dismiss Alleging Misconduct(Doc. # 126), filed on March 5, 2007.

5

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 Court’s

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

public’s right of access to court filings, that presumption can be outweighed by


6

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 (4 Cir. 1991). The district court’s denial of Mr. Bond’sth

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 government’s attorney work product. In February of 2006, the trial court

appointed the Federal Public Defender’s 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 Attorney’s 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


7

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 (4 Cir. 1994).th

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 (4 Cir.th

1981)(citations omitted).

The protections afforded to the government’s 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 court’s denial of Mr. Bond’s 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 court’s decision to keep under seal the records


8

relating to the specific witness issue and attorney work product.

Respectfully submitted,

Rod J. RosensteinUnited States Attorney

By:_________/s/__________________Kathleen O. GavinAssistant United States Attorney36 South Charles StreetFourth FloorBaltimore, Maryland 21201(410) 209-4800

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 30 day of September, 2009, copies of th

the foregoing redacted version of the Government’s Response to

Intervenor/Appellant’s 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 RoadBaltimore, Maryland 21218;

Barry J. Pollack, EsquireMiller & Chevalier655 Fifteenth Street, N.W.


9

Suite 900Washington, D.C. 20005

William B. Purpura, Esquire8 East Mulberry StreetBaltimore, Maryland 21202

Jeffrey Risberg, EsquireAssistant Federal Public Defender100 South Charles StreetSuite 1100Baltimore, Maryland 21201

David B. Irwin, EsquireIrwin, Green & Dexter, L.L.P.301 West Pennsylvania AvenueTowson, MD 21204

_______/s/__________________________Kathleen O. GavinAssistant United States Attorney


Documents

Informal Response Brief by USA in U.S. Court of Appeals for the Fourth Circuit in case no.: 09-7572