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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF PUERTO RICO

UNITED STATES OF AMERICA

Plaintiff

v.

ANIBAL ACEVEDO VILA, et al

Defendants

CRIM. NO. 08-36 (PJB)

GOVERNMENTS RESPONSE TOMOTION TO VACATE PROTECTIVE ORDER

On May 30, 2008, this Court entered a Protective Order in the above-captioned case

governing the use and disclosure of all material shared in discovery. Dkt. No. 156. The Protective

Order applies to the Government and the defense only, and specifically commands that:

all parties to this matter shall refrain from releasing, or authorizing

anyone within his or her control to release, information pertaining to

the above-captioned matter and documents and materials exchanged

in the course of pre-trial discovery in connection with the above-captioned matter for public use or dissemination . . . .

Dkt. No. 156 at 2. The Protective Order also notes that all parties have concurr[ed] in the need for

issuance of a Protective Order to govern all pre-trial discovery exchanged between the parties, Dkt.

No. 156 at 1, and that it is the further finding of this Court that the parties have made a sufficient

showing to authorize entry of a Protective Order as required by Fed. R. Crim. P. 16(d)(1), Dkt. No.

156 at 2. Finally, the Protective Order admonished that within 90 days of the conclusion of the case

all such documents were to either be returned to the disclosing party or, in the alternative, destroyed

and so certified by the attorney who received the original disclosure. Dkt. No. 156 at 5.

Case 3:08-cr-00036-PJB Document 812 Filed 09/15/11 Page 1 of 8


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United States v. Anbal Acevedo Vil, et. al.

Crim. No. 08-36 (PJB)

Governments Response to Mo tion to Vacate Protective Order

Page 2

On September 7, 2011, El Vocero newspaper, a non-party to these proceedings, filed an

amicus curiae motion to vacate the Protective Order, and further requesting that the public and El

Vocero [] be allowed access to all of the documents included in the Protective Order . . . . Dkt. No.

810 at 12. As a non-party that is not governed by the Protective Order, El Vocero does not have the

legal standing to request such relief. Additionally, the order requiring the parties to destroy or return

the documents within 90 days of the conclusion of the case moots the requested relief. Moreover,

the reasoning employed by El Vocerothe Protective Order violates its First Amendment

rightschallenges the use of Protective Orders generally, undermines the validity of Rule 16(d)(1),

which specifically contemplates the use of Protective Orders, and threatens the vitality of the

criminal justice system. Finally, it cannot be ignored that El Vocero is requesting this Court to

intervene itself in a current political dispute in the District of Puerto Rico, something the law1

unequivocally forbids. Accordingly, the United States opposes the motion to vacate the Protective

Order.

I. The El Vocero Newspaper Has No Right to Intervene in the Case.

Although the request to vacate the Protective Order is not procedurally couched as a motion

to intervene, El Vocero is seeking to do just that, to intervene as a non-party in this case and assert

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El Vocero grounds its requested relief in order to obtain a copy of the case-related documents that

Acevedo Vila reportedly sent to former Governor Sila Maria Calderon. See Dkt. No. 810. The

details surrounding that incident are fully recounted in the Motion to Vacate the Protective Order,

and therefore, will not be repeated in this response. Those details are of limited evidentiary and legal

significance for purposes of the disclosure issue before the Honorable Court.

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disclosure rights to case-related documents and information which are presumptively private

pursuant to the terms of the Protective Order. The propriety of this intervention is not directly

addressed in El Voceros motion. However, it is noteworthy that the Federal Rules of Criminal

Procedure do not provide a right of intervention in a criminal case, such as contemplated in civil

litigation. Furthermore, even where intervention falls within the ambit of the rule, the intervention2

must be timely. Fed. R. Civ. P. 24. This belated petition, three and a half years after entry of the

Protective Order strains notions of timeliness. Furthermore, the parties exchanged liberal

discovery in the case in full and justifiable reliance on the protections of the order.3

As El Vocero observes in its motion, the First Amendment implicitly guarantees the right to

access criminal trials, but this First Amendment right of access should not be confused or conflated

with a right of access to documents protected by a court order issued under Rule 16(d)(1) and not

used in any part of the proceedings, as asserted by El Vocero. Indeed, even in cases where the

common law right of intervention has been judicially validated, it has been strictly conditioned on

claims for inspection and copying of public records and documents, including judicial records, not

investigative and other law enforcement reports which are the subject of a criminal investigation.

See, e.g.,Nixon v. Warner Communications, 435 U. S. 589, 597 (1978) ([C]ourts of this country

recognize a general right to inspect and copy public records and documents, including judicial

records and documents.);In re: Associated Press, et al., v. Ladd, et al.,162 F.3d 503 (7 Cir. 2998)th

/ Federal Rule of Civil Procedure 24 provides for Permissive Intervention.2

/ The Protective Order has been in effect since May 30, 2008.3

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(permitting access to the trial testimony of the Governor of Illinois, in a case in which the defendant

had been charged with defrauding the Illinois Department of Public Aid). There can be no fair

dispute that confidential investigative documents that were never filed with the Court nor used by

the parties in the litigation of the case do not fall into the category of judicial records.

El Vocero sidesteps this dispositive distinction and relies instead on fundamental, yet

inapposite, First Amendment principles. These principles of First Amendment right of access to

criminal trials do not advance the merits of a request by a non-party to vacate a Protective Order that

applies only to the parties in a case.

II. El Vocero Attempts to Challenge the Validity of Protective Orders Generally.

El Vocero complains that the documents underlying the political dispute between Acevedo

Vila and Ms. Calderon are governed by the Protective Order. Dkt. No. 810 at 2. El Vocero

continues, [d]ue to this fact, the contents of the Documents were not to be revealed to the public,

this, blocking the Puerto Rico medias access to the truth. This argument is telling. El Vocero is

not merely seeking to intervene as a non-party to vacate an order that does not apply to them. El

Vocero is also challenging the validity of Protective Orders generally. In the process, the newspaper

implicitly challenges the validity of Rule 16(d)(1) of the Federal Rules of Criminal Procedure, which

specifically contemplates the use of Protective Orders in criminal proceedings.

Protective Orders are used everyday in cases all across the country. This fact is fatal to El

Voceros First Amendment argument, more fully discussed below. Specifically, El Vocero observes

that the Supreme Court, in addressing a First Amendment claim for right of access, has focused on

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whether the place and process have historically been open to the press and the general public.

Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1, 8 (1986).

The fact that Protective Orders are commonly used in courtrooms across the country, and their

propriety in the context of criminal cases has been codified in the Federal Rules of Criminal

Procedure, fatally undermines El Voceros First Amendment argument.

III. The First Amendment Does not Entitle El Vocero to Documents Under theProtective Order.

El Vocero relies on the First Amendment to advance its position that the Protective Order

is legally infirm. But the First Amendment has never been interpreted so broadly. Even the cases

relied on by El Vocero are careful to make this distinction. For instance, El Vocero relies on

Sheppard v. Maxwell, 348 U.S. 333 (1966), for the proposition that the right to attend criminal trials

is implicit in the guarantees of the First Amendment . . . . Id. at 350. El Vocero also relies on

Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555 (1980), for the proposition that public access

to the criminal trial fosters an appearance of fairness, thereby heightening public respect for the

judicial process. Id. at 578. These basic constituents of First Amendment freedom are of neglible

consequence to El Voceros request, since the Supreme Court has never defined a criminal trial

so broadly as to include discovery, or confidential law enforcement reports. El Vocero has failed

to cite any legal authority to the contrary.

IV. El Vocero Conflates its First Amendment Rights with a Criminal DefendantsSixth Amendment Rights

El Vocero next attempts to avail itself of a defendants Sixth Amendment rights to support

its claim to documents governed by the Protective Order. Specifically, El Vocero mistakenly relies

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on the case ofBowden v. Keane, 237 F.3d 125 (2d Cir. 2001), for the proposition that the Sixth

Amendment public trial guarantee confers on criminal defendants the right to be tried in a courtroom

whose doors are open to any members of the public inclined to observe the trial. Id. at 129. But

El Vocero is not a criminal defendant in this case, and it cannot, therefore, rely on the Sixth

Amendment. Furthermore, the issue before the court is not the publics right to observe a criminal

trial, which has now concluded.4

V. The Court Should Not Intervene in a Political Dispute

El Vocero makes multiple references to the dispute between Acevedo Vila and Ms. Calderon,

and urges judicial intervention to protect its right to access case related materials connected with this

controversy. El Vocero attempts to bait the court by suggesting that the Protective Order prevents

the public from their right to know the whole story, whom this Honorable Court is protecting, and

why. Dkt. No. 810 at (emphasis in original). El Vocero also asserts that [i]f this Honorable Court

should deem that the Protective Order is still necessary to this day, it will have the effect of raising

even more suspicion an [sic] mistrust as to the contents of the Documents. Dkt. No. 810 at 9-10.

It is axiomatic that it would be improper for a court to consider such political and tabloid

consequences when issuing a legal ruling. But that is exactly what El Vocero urges in its motion,

perhaps because the law does not support its request. El Vocero could not be any more transparent

than when it asks this Court to issue an order that the public and El Vocero[] be allowed access to

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The trial in this case was open to the public and amply covered by the media in Puerto Rico.

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all of the documents included in the Protective Order . . . . Dkt. No. 810 at 12. Such relief is well

beyond the purview and jurisdiction of this Court.

VI. Conclusion.

Accordingly, this Court should deny the motion to vacate the Protective Order.5

RESPECTFULLY SUBMITTED.

In San Juan, Puerto Rico, this 15th day of September, 2011.

ROSA EMILIA RODRGUEZ-VLEZ U.S. DEPARTMENT OF JUSTICEUNITED STATES ATTORNEY CRIMINAL DIVISION

PUBLIC INTEGRITY SECTION

s / Mara A. Domnguez

Mara A. Domnguez Peter Koski

First Assistant United States Attorney Trial Attorney

USDC No. 210908 1400 New York Avenue N.W.

Torre Chardn, Suite 1201 Washington, DC 20530

350 Carlos Chardon St. Peter Koski ([email protected])

Hato Rey, Puerto Rico 00918 Phone (202) 307-3589

Phone (787) 766-5656, Fax (787) 766-5632

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Counsel for defendant Luisa Incln Bird has authorized the government to represent that he joins the

Government's opposition to El Voceros Motion to Vacate the Protective Order.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this same date, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system, which will send notification of such filing to counsel

for the Defendants.

s / Mara A. DomnguezMara A. Domnguez

First Assistant United States Attorney

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