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United States v. Foley

United States District Court, D. Connecticut

November 4, 2019

UNITED STATES OF AMERICA
v.
AMBER FOLEY Defendant.

          PRE-TRIAL ORDERS

          Hon. Vanessa L. Bryant United States District Judge.

         Trial in this matter is scheduled to commence with jury selection on November 19, 2019. The Court reviewed the parties' Joint Trial Memorandum (“JTM”)[Dkt. 111] and issues the following Orders.

         Defense witness and exhibit lists

         Before considering the motions set forth in the JTM, the Court must address the inadequacy of the discussion of the defense's case in the JTM. The defense case does not set forth witnesses that the Defendant intends to call or exhibits that she may introduce. Id. at 15. Instead, the Defendant generally reserves the right to call witnesses, offer exhibits, and testify on her own behalf. Id “[T]he Federal Rules of Criminal Procedure do not require disclosure of trial witnesses by a particular date in advance; the timing and manner is left up to the discretion of the Court. U.S. v. Ulbricht, No. 14-CR-68 KBF, 2014 WL 7273954, at *1 (S.D.N.Y. Dec. 12, 2014)

         Here, Chambers Practices state that: “Counsel shall set forth the name and address of each witness to be called at trial, including a brief summary of the anticipated testimony and the expected duration of the witness's testimony. Counsel shall indicate which witnesses are likely to testify and which witnesses will be called only if the need arises.” Chamber Practices (available at http://www.ctd.uscourts.gov/content/vanessa-l-bryant). See [Dkt. 105] (directing parties to closely follow Chambers' Practice regarding submission of the JTM) (underlining in original). Chambers Practices also require a list of all exhibits and their description in the JTM: “Generally, exhibits that are not included in the submission will be inadmissible unless all parties agree that they may be admitted or they are offered for impeachment or rebuttal.” Chambers Practices.

         The Defendant shall supplement the JTM by including any witness list or exhibits, should the Defendant intend to call any witnesses, other than the Defendant, or introduce exhibits, not included in the Government's case in chief. The Defendant's supplemental filing is due no later than November 7, 2019.

         1. Partial redaction of exhibits

         The Government requests that only redacted versions of images that the Government argues constitute “child pornography, ” 18 U.S.C. § 2256(8) be displayed to the public gallery at trial. [Dkt. 111 at 16]. The Government proposes that the redacted images will be sanitized to cover the genitalia. Id. Unredacted images will be provided to the Court, the jury, witnesses, and the Defendant in envelopes collected and maintained by the Government. No. objection by the Defendant is presented in the JTM. Id.

         “The public has a right of access to court documents. That right is both recognized by the common law and protected by the first amendment.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98 (1978). The Sixth Amendment also guarantees a defendant the right to a public trial. U.S. Const. Amend. VI. “This right, however, “may give way in certain cases to other rights or interests.... Such circumstances will be rare, ... and the balance of interests must be struck with special care.” Waller v. Georgia, 467 U.S. 39, 45 (1984) (internal citations omitted). Waller sets forth four factors for the Court to consider when consider when restriction public access to a proceeding: (1) the closure must “advance an overriding interest that is likely to be prejudiced”; (2) the closure must be “no broader than necessary to protect that interest”; (3) the trial court must consider “reasonable alternatives to closing the proceeding”; and (4) the trial court must make “findings adequate to support the closure.” Id. at 48.

         U.S. v. Killingbeck, 616 Fed. App'x 14, 16 (2d Cir. 2015), the Second Circuit held that, even if “assuming that restricting the display of trial exhibits [showing images of child pornography] to the courtroom audience constitutes a partial “closure” for Sixth Amendment purposes, the government presents substantial reasons for doing so, [namely] limiting the continuing harm to victims of child pornography.” Like Killingbeck, the procedure is narrowly tailored as the public will not be excluded from the courtroom and can see the witnesses and their testimony. Id. “A trivial closure, even if intentional and unjustified, may not rise to the level of a Sixth Amendment violation.” Id. (citing Carson v. Fischer, 421 F.3d 83, 92 (2d. Cir. 2005). Here, the proposed procedure for displaying exhibits provides even greater access public access to the proceeding than the procedure affirmed in Killingbeck.

         The Court, therefore, GRANTS the parties' proposed procedure for handling and displaying materials that the Government argues are child pornography.

         2. Protection of the identity minor children

         The JTM also indicates that the Government anticipates testimony and evidence, which would reveal the name of the children depicted in the alleged child pornography during trial. 18 U.S.C. § 3509(d)(A) provides that “…the court may issue an order protecting a child from public disclosure of the name of or any other information concerning the child in the course of the proceedings, if the court determines that there is a significant possibility that such disclosure would be detrimental to the child.”

         “While the public interest in access to the full information about witnesses' identities is less significant than the public interest in being present during criminal proceedings, access to this information still implicates the right to participate in informed “discussion of governmental affairs” and is thus also protected by the First Amendment.” See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604, (1982) (invalidating rule requiring courts to be automatically closed during testimony of underage sexual assault victims on First Amendment grounds).

         The Court finds that disclosure of the children's identities would be likely be ‘detrimental, ” to the children's psychological wellbeing, given their young age the nature of the conduct charged. Referring to the minor female child as “Minor Child 1” or (MC1) and the male child as “Minor Child 2” (MC2) is narrowly tailored to protect the ...


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