Case 2:12-cr-01055-FJM Document 16 Filed 05/31/12 Page 1 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LANNY A. BREUER Assistant Attorney General Attorney for the United States Acting Under Authority of 28 U.S.C. 515 JACK SMITH Chief, Public Integrity Section MONIQUE T. ABRISHAMI Trial Attorney Florida State Bar Member Public Integrity Section Criminal Division U.S. Department of Justice 1400 New York Avenue, NW , 12 th Floor W ashington, D.C. 20005 Telephone (202) 514-1412 Monique.Abrishami@usdoj.gov FREDERICK A. BATTISTA Assistant U.S. Attorney Maryland State Bar Member Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7500 Fred.Battista@usdoj.gov

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, CR-12-1055-001-PHX-FJM v. SECOND CONSENT MOTION FOR A PROTECTIVE ORDER Paul Ben Arredondo, Defendant.

The United States, with the consent of defendant P. Ben Arredondo, moves this Court, pursuant to Federal Rule of Criminal Procedure 16(d)(1), to enter into force the attached protective order governing discovery in this matter.

Case 2:12-cr-01055-FJM Document 16 Filed 05/31/12 Page 2 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

As noted in its Amended Consent Motion for a Protective Order (Doc. 10), the Government intends to produce or otherwise make available to the defense a large amount of material, much of which contains confidential and sensitive information related to other investigations (both closed and ongoing). If this information were to be publicly disclosed, such disclosure might impede those investigations which are ongoing and/or impair the privacy rights of third parties whose conduct is or was at one time under investigation. Moreover, some of this material contains sensitive information regarding witnesses, such as personal identifiers, addresses, and phone numbers. Magistrate Judge Lawrence Anderson denied the Governments motion on May 30, 2012, citing concerns with the breadth of the requested relief. In light of those concerns, the Government has amended its proposed Protective Order to limit its application to Confidential Material as that term is defined in the Order, and to exclude material that is otherwise publicly available. In its revised form, the Order would protect four classes of materials: (1) materials relating to the investigation of third persons and/or entities (both open and closed); (2) materials relating to individuals who have agreed to cooperate with the Government in the investigation of other persons or entities; (3) materials relating to individuals who provided background information to law enforcement regarding the investigation of other persons or entities and requested that their identities not be disclosed; (4) all financial records, tax records, and personal identifier information (including addresses, birthdates, and social security numbers) of all third parties. The materials in these four categories, representing the fruits of a largescale investigation, is only tangentially related, if related at all, to the charges against defendant ARREDONDO. The Government wishes to disclose this information out of an abundance of caution. However, to protect the third parties who are not involved in defendant ARREDONDOs case, and the parties who provided information regarding persons other than defendant ARREDONDO, the Government respectfully requests that a protective order be entered as to the Confidential Material provided in this matter. As the Supreme Court has noted, much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984). Rule 16(d) permits the 2

Case 2:12-cr-01055-FJM Document 16 Filed 05/31/12 Page 3 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Court to for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief, including a protective order. FED . R. CRIM . P. 16(d). The Government does not seek to seal otherwise public court records, but rather to protect otherwise non-public information produced to the defense in discovery. Protecting this information requires good cause. See San Jose Mercury News, Inc. v. U.S. District Court, 187 F.3d 1095, 1103 (9th Cir. 1999) (applying the good cause standard to evaluate a civil protective order under Rule 26(c) of the Federal Rules of Civil Procedure); c.f. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179-80 (9th2006) ([W]hen a district court grants a protective order to seal documents during discovery, it already has determined that good cause exists to protect this information from being disclosed to the public by balancing the needs for discovery against the need for confidentiality. [Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)]). In this case, the Government seeks to protect material that will likely have little to no impact on defendant ARREDONDOs defense, consisting of information regarding closed and ongoing investigations of other parties, as well as financial records and personal identifier information of other parties. As to the latter category, the release of this information could result in identity theft or harassment. In fact, the District of Arizona has already recognized the importance of concealing personal identifier information in court documents. District of Arizona General Order 08-11. This protective order would prevent that same sort of private information from being disseminated beyond those persons necessary to defendant ARREDONDOs defense, thereby limiting if not eliminating the risks associated with its public release. Mehl v. Blanas, 241 F.R.D. 653, 659-60 (N.D. Cal. 2007) (imposing a protective order for personal identifier information in part to protect persons from the possibility of identity theft). As to the former category information regarding ongoing and closed investigations of other parties, including information regarding sources for those investigations the dissemination of that material beyond a limited set of persons could impede criminal investigations, compromise witness safety, and deter potential witnesses from providing information to the Federal Bureau of Investigation. See, e.g., United States v. Smith, 776 F.2d 1104, 1114 (3d Cir. 1985) (recognizing that releasing the 3

Case 2:12-cr-01055-FJM Document 16 Filed 05/31/12 Page 4 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

names of unindicted persons who were suspected of criminal activity would expose those persons to irreparable harm warranting a protective order); Kelly v. City of San Jose, 114 F.R.D. 653, 661 (N.D. Cal. 1987) (And in the relatively rare case where there is a very real threat to obviously important law enforcement interests (as there could be, for example, if a plaintiff were seeking the names of confidential informants in on-going criminal investigations, or wanted to learn operational plans for imminent police activities), the moderate pre-weighting in favor of disclosure will not disable courts from protecting those law enforcement interests.). In light of the potential dangers associated with the public release of this information, the Government seeks to limit its exposure to defendant ARREDONDO and those persons necessary for the preparation of his defense. Accordingly, the Government respectfully requests that a protective order be entered as to the Confidential Material provided in this matter. Such materials will be handled pursuant to the procedures outlined in the proposed Order submitted contemporaneously to the Court, and those materials may only be disclosed or disseminated in accordance with the proposed Order, unless and until that Order is modified by the Court. The Government has contacted defense counsel for defendant Arredondo in this matter, who has indicated he has no objection to this proposed protective order. Excludable delay under 18 U.S.C. 3161(h)(1)(D) will occur as a result of this motion or of an order based thereon. Respectfully submitted,

20 21 22 S/Monique T. Abrishami 23 24 25 26 27 28 4 MONIQUE T. ABRISHAMI Trial Attorneys Public Integrity Section United States Department of Justice JACK SMITH Chief, Public Integrity Section United States Department of Justice

Case 2:12-cr-01055-FJM Document 16 Filed 05/31/12 Page 5 of 8

1 2 3 4 5

S/Frederick A. Battista FREDERICK A. BATTISTA Assistant U.S. Attorney United States Attorney's Office District of Arizona

CERTIFICATE OF SERVICE 6 I hereby certify that on May 30, 2012, I caused the attached document to be electronically 7 transmitted to the Clerks Office using the ECF system for filing and transmittal of a Notice of 8 Electronic Filing to the following ECF registrants: 9 10 11 12 S/Frederick A. Battista 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 FREDERICK A. BATTISTA Assistant U.S. Attorney Lee Stein Jean-Jacques Cabau Amy Chang Counsel for Defendant

Case 2:12-cr-01055-FJM Document 16 Filed 05/31/12 Page 6 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 THIS MATTER COMING BEFORE THIS COURT on the United States Unopposed Motion for a Protective Order concerning the disclosure of discovery material to defendant P. BEN ARREDONDO, in light of the confidential and law-enforcement-sensitive information which may be disclosed in accordance with the Governments discovery obligations, the Governments motion is GRANTED, and IT IS HEREBY ORDERED (subject to the exception set forth in Section 9 of this Order below) that: 1. All Confidential Material exchanged between the parties will be handled in v. ORDER Paul Ben Arredondo, Defendant. United States of America, Plaintiff, CR-12-1055-001-PHX-FJM UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

accordance with the terms of this Protective Order. The term Confidential Material shall be defined for the purposes of this Order as the following material provided by the United States

Case 2:12-cr-01055-FJM Document 16 Filed 05/31/12 Page 7 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

to the defendant: (1) materials relating to the investigation of third persons and/or entities (both open and closed); (2) materials relating to individuals who have agreed to cooperate with the government in the investigation of other persons or entities; (3) materials relating to individuals who provided background information to law enforcement regarding the investigation of other persons or entities and requested that their identities not be disclosed; (4) all financial records, tax records, and personal identifier information (including addresses, birthdates, and social security numbers) of all third parties. 2. All Confidential Material shall be reviewed by only (i) defendant ARREDONDO,

(ii) his attorneys of record, (iii) employees of those attorneys, (iv) a photocopying or data processing service to whom it is necessary that defendant ARREDONDO show the materials for the purposes of preparation, trial, direct appeal (if any), and collateral attack (if any) of this matter, (v) witnesses or potential witnesses, (vi) experts or investigators assisting in the preparation, trial, direct appeal (if any), and collateral attack (if any) of this matter, and (vii) attorneys for any person identified in this paragraph. Defendant ARREDONDO shall not disclose the contents of the Confidential Material to any individual or entity except as provided herein, as agreed to by the parties, or as further ordered by the Court. 3. Defendant ARREDONDO shall use Confidential Material and its contents solely

for the preparation, trial, direct appeal (if any), and collateral attack (if any) of this matter and for no other purpose whatsoever. No additional copies of the Confidential Material shall be made except as necessary for those purposes. 4. This Order applies to any and all individuals to whom defendant ARREDONDO (to

include any and all of his attorneys and agents), pursuant to this Order, shows or discloses the contents or substance of the Confidential Material produced to him by the Government. Before first Confidential Material or its contents to any of the individuals or entities listed above, defendant ARREDONDO or his counsel must give him or her a copy of this Order. By accepting such material or its contents, such persons agree to submit to the jurisdiction of the

Case 2:12-cr-01055-FJM Document 16 Filed 05/31/12 Page 8 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

United States District Court for the District of Arizona for the sole purpose of having the terms of this order enforced. 5. Defendant ARREDONDO may include Confidential Material or its contents in a

public filing only with the Governments prior approval, or, in the event the Government opposes such disclosure, prior approval of the Court. The Government may include reciprocal discovery materials or their contents that qualify as Confidential Material in a public filing only with defendant ARREDONDOs prior approval, or, in the event defendant ARREDONDO opposes such disclosure, prior approval of the Court. Neither party will unreasonably withhold approval. 6. Defendant ARREDONDO may not use Confidential Material, including but not

limited to the personal identifying information of third parties, to harass, intimidate, or coerce any individual whose personal identifying information is disclosed pursuant to this Order. 7. Should defendant ARREDONDO, his attorney of record, or any of the other

individuals or entities listed above find any material inadvertently produced by the Government that is marked as classified, they shall immediately double-seal the material and all copies of the material and inform the Government. By returning any such materials, defendant

ARREDONDO does not waive his right to use the materials at trial or on direct appeal (if any). 8. Within 60 days from the conclusion of these proceedings (if any) and any direct

appeal (if any) from or collateral attack (if any) upon these proceedings, the Confidential Material disclosed by the Government and any duplicates made in the preparation, trial, and direct appeal (if any) of this matter shall be returned to the Government or destroyed by defendant ARREDONDO, unless the Court gives specific permission for an exception to this requirement. 9. discovery. The Court finds excludable delay under 18 U.S.C. 3161(h)(1)(D) from ____ to _____. This Order does not apply to otherwise publicly available information produced in