Opinion
21 Cr. 444 (JSR)
11-22-2022
United States of America v. YOSEF COHEN, a/k/a “Joe,” and VAGUE SHAGENOVICH TERGALSTANYAN, a/k/a “Vahe,” a/k/a “Vic,” Defendants.
United States Attorney Micah Fergenson Assistant United States Attorney Anthony Solis, Esq. Counsel for Yosef Cohen Edward Sapone Esq Counsel for Vague Tergalstanyan
United States Attorney Micah Fergenson Assistant United States Attorney
Anthony Solis, Esq. Counsel for Yosef Cohen
Edward Sapone Esq Counsel for Vague Tergalstanyan
[PROPOSED] AMENDED PROTECTIVE ORDER
HONORABLE JED S. RAKOFF UNITED STATES DISTRICT JUDGE
Upon the application of the United States of America, with the consent of the undersigned counsel, and the defendants having requested discovery under Rule 16 of the Federal Rules of Criminal Procedure, the Court hereby finds and orders as follows:
1. Sensitive Material. The Government will make disclosure to the defendants of documents, objects, and information, including electronically stored information (“ESI”), pursuant to Rule 16 of the Federal Rules of Criminal Procedure; Title 18, United States Code, Section 3500; and the Government's general obligation to produce exculpatory and impeachment material in criminal cases, all of which will be referred to herein as “disclosure material.” Certain of the Government's disclosure material, referred to herein as “Sensitive Material,” includes information that (i) affects the privacy and confidentiality of individuals and entities; (ii) impacts the safety of individuals; (iii) would impede, if prematurely disclosed, the Government's ongoing investigation of uncharged individuals; (iv) would risk prejudicial pretrial publicity if publicly disseminated; and (v) is not authorized to be disclosed to the public or disclosed beyond that which is necessary for the defense of this criminal case. Disclosure material produced by the Government to the defendants or their counsel that are marked as “Sensitive” shall be deemed Sensitive Material.
2. Attorney's Possession Only (“APO”) Material. Certain discovery materials in this case may raise a heightened risk to the privacy and confidentiality of individuals or to an ongoing investigation of uncharged individuals. Discovery materials produced by the Government to the defendant or their counsel that are either (1) designated in whole or in part as “APO” by the Government in emails or communications to defense counsel, or (2) that include a Bates or other label stating “APO,” shall be deemed “APO Material.”
3. Attorney's Eyes Only (“AEO”) Material. Certain discovery materials in this case may raise particular concerns about the safety of witnesses and other individuals. Discovery materials produced by the Government to the defendant or his counsel that are either (1) designated in whole or in part as “AEO” by the Government in emails or communications to defense counsel, or (2) that include a Bates or other label stating “AEO,” shall be deemed “AEO Material.” NOW, THEREFORE, FOR GOOD CAUSE SHOWN, IT IS HEREBY ORDERED:
4. Disclosure material designated as Sensitive Material shall not be disclosed by the defendants or their counsel, including any successor counsel (“the defense”), other than as set forth herein, and shall be used by the defense solely for purposes of defending this case. The defense shall not post any Sensitive Material on any Internet site or network site to which persons other than the parties hereto have access, and shall not disclose any Sensitive Material to the media or any third party except as set forth below.
5. Sensitive Material may be disclosed by the defense to:
(a) Personnel for whose conduct defense counsel is responsible, i.e., personnel employed by or retained by counsel, as needed for purposes of defending this action;
(b) Prospective witnesses for purposes of defending this action;
(c) The defendants; and
(d) Such other persons as hereafter may be authorized by the Court.
6. The restrictions on APO Material are the same as Sensitive Material, except that APO Material may only be disclosed to the defendant for review at the offices of defense counsel, or in the presence of defense counsel or any member of the defense team (e.g., attorneys, experts, consultants, paralegals, investigators, support personnel, and secretarial staff involved in the representation of the defendant in this case), for purposes related to this case. The defendant shall not maintain, retain, or keep copies of any records containing APO Material outside of the offices or presence of defense counsel. APO Material may otherwise be disclosed to Designated Persons consistent with the terms of Sensitive Material.
7. The restrictions on AEO Material are the same as APO Material, except that AEO Material shall not be disclosed to or possessed by the defendant, and may only be disclosed to defense counsel and personnel for whose conduct counsel is responsible, i.e., personnel employed by or retained by counsel, as needed for purposes of defending this action.
8. The Government may authorize, in writing, disclosure of disclosure material beyond that otherwise permitted by this Order without further Order of this Court.
9. The defense shall provide a copy of this Order to any individual or entity to whom the defense discloses Sensitive, APO, or AEO Material in accordance with the provisions of this Order. All such persons shall be subject to the terms of this Order. Defense counsel shall maintain a record of what Sensitive, APO, or AEO Material has been disclosed to which such persons.
10. This Order does not prevent the disclosure of any disclosure material in any hearing or trial held in this case, or to any judge or magistrate judge, for purposes of this case. All filings should comply with the privacy protection provisions of Rule 49.1 of the Federal Rules of Criminal Procedure.
11. At any time, the defense may seek leave from the Government to alter the designations for materials designated as Sensitive, APO, or AEO Material (“Requested Material”). The Government will promptly review such Requested Material and (i) consent to the requested designation alteration or sharing of the material; or (ii) provide the defense with an explanation as to why the Requested Material cannot be designated or shared in the manner requested, so as to facilitate the Court's consideration of any disputes regarding the Requested Material. The Government's designation of material will be controlling absent contrary order of the Court.
12. Except for such material that has been made part of the record of this case, the defense shall return to the Government or securely destroy or delete all such material within 30 days of the expiration of the period for direct appeal from any verdict in this case; the period of direct appeal from any order dismissing any of the charges in this case; or the granting of any motion made on behalf of the Government dismissing any charges in this case; or the expiration of the period in which habeas relief may be sought, whichever date is later. If Sensitive Material is provided to any prospective witness, counsel shall make reasonable efforts to seek the return or destruction of such materials.
13. This Order places no restriction on a defendant's use or disclosure of ESI that originally belonged to that defendant.
Retention of Jurisdiction
14. The provisions of this Order shall not terminate at the conclusion, of this case and the Court shall retain jurisdiction to enforce this Order following termination of the case.
SO ORDERED