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Federal Election Commission v. Rivera

United States District Court, S.D. Florida, Miami Division

September 13, 2019

FEDERAL ELECTION COMMISSION Plaintiff,
v.
DAVID RIVERA, Defendant.

          ORDER GRANTING FEDERAL ELECTION COMMISSION'S PETITION FOR DISCLOSURE OF GRAND JURY MATERIALS

          JONATHAN GOODMAN, UNITED STATES MAGISTRATE JUDGE

         The Federal Election Commission (“FEC”) filed a petition [ECF No. 58] to disclose grand jury materials from United States v. Justin Lamar Sternad, Case No. 13-CR-20108-CMA-1 (S.D. Fla. Feb. 22, 2013) and United States v. Alliegro, Case No. 14-CR-20102-RNS-1 (S.D. Fla. Feb. 20, 2014), that are in the custody of the United States Attorney for the Southern District of Florida.

         The FEC's petition concerns the Amended Complaint it has filed here [ECF No. 41] against former U.S. Congressman David Rivera, who it alleged had secretly provided more than $55, 000 of in-kind contributions to the 2012 primary election campaign of Justin Lamar Sternad in Florida's 26th Congressional District, in violation of the Federal Election Campaign Act (“FECA”)'s prohibition on contributions in the name of another. Sternad and Ana Alliegro pled guilty to criminal charges for their roles in this activity, as well as other activity, and these criminal cases have concluded. Although revealed to be an unindicted coconspirator in the criminal cases, Rivera was not criminally prosecuted for his alleged role in the conspiracy.

         The grand jury materials at issue in the petition are: (1) business records provided by witnesses, such as invoices, vendor account documentation, payment forms, receipts, postal records, campaign mailers and/or flyers; (2) other documentary evidence collected from witnesses or defendants, such as email, texts, call logs and handwritten notes; and (3) the transcript of Alliegro's grand jury testimony.

         The United States Attorney's Office consented to the filing of the FEC's petition and does not object to the requested disclosure of the grand jury materials in its possession to the FEC and Rivera but requests entry of an Order. Rivera does not oppose the motion either. And Alliegro opposes only the disclosure of her grand jury testimony; she does not object to the disclosure of materials in the other two categories.

         United States District Judge Marcia G. Cooke has referred this petition to the Undersigned, both generally [ECF No. 25, referral for all non-dispositive pretrial matters] and specifically [ECF No. 66, referral of the instant petition].

         Because (1) no party objects to the disclosure of grand jury materials in the first two categories; (2) the FEC has established, pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E)(i), a “compelling and particularized need” for Alliegro's grand jury testimony under the “judicial proceedings” exception to the grand jury secrecy rule of Federal Rule of Criminal Procedure 6; and (3) Alliegro did not cite any caselaw or other authority supporting her conclusory objection to the requested disclosure of her grand jury testimony, the Undersigned grants the FEC's petition.

         I. Factual Background

         The FEC filed this civil action against Rivera in July 2017 after the criminal prosecution ended. The FEC's administrative proceedings had previously been abated. During its recent discovery efforts, the FEC learned that certain key witnesses with knowledge of facts material to this case provided documentary evidence to the Department of Justice (“DOJ”) many years ago but no longer have access to or copies of that evidence. Moreover, in his June 26, 2019 discovery responses to the FEC, Rivera provided no records relating to the transactions at issue in this case, but he did produce a declaration from Alliegro contradicting the factual basis of her criminal guilty plea. [ECF Nos. 51-53].

         Some of the materials at issue may have been provided pursuant to a grand jury subpoena, but some materials were given to the DOJ voluntarily by witnesses or otherwise collected from them but may have been considered by the grand jury. In addition, the FEC has explained [ECF No. 58, p. 3, n. 3] that some of the materials in the USAO's possession which were provided by, or collected from, witnesses may not have been considered by the grand jury.

         II. The FEC's Position

         The FEC contends that it has a compelling and particularized need justifying an exception under Rule 6(e)(3)(E)(i). First, the material it seeks is necessary to avoid injustice in this civil proceeding given that key witnesses no longer have access to or copies of documentary evidence they provided to the DOJ, or have recently disavowed testimony provided in the criminal proceeding. Second, the need for disclosure is significant given the identity of issues and witnesses in the civil and criminal proceedings and given that the materials the FEC seeks are critical to its ability to prove its case.

         On the other hand, the FEC argues, the need for secrecy, if any, is slight because (a) many of the materials it requests are documents that existed independent of the grand jury investigation and may have been voluntarily provided to the DOJ, so the need for secrecy is negligible or non-existent; (b) the criminal matters have long been completed and the grand jury released; (c) the identities of the relevant witnesses have been publicly reported; and (d) Rivera faces no threat of criminal prosecution and his status as an alleged unindicted co-conspirator in the Sternad and Alliegro matters is already public knowledge. Third, the FEC says its request is narrowly tailored to the facts of this case.

         Finally, the FEC points out that materials not considered by the grand jury are not even grand jury material within the meaning of Rule 6(e)'s secrecy provision and can be shared with the FEC (and Rivera) in this lawsuit. Nevertheless, it argues that an Order would generate a benefit because it would allow the parties to share information without forcing the USAO to segregate materials into categories: those obtained without a grand jury subpoena, those obtained with a grand jury subpoena, and those never considered by the grand jury. Thus, the FEC notes, an Order would eliminate this administrative burden, which it suggests might be cumbersome and problematic “after the passage of a number of years.” [ECF No. 58, p. 3, n. 3].

         III. Alliegro's Position

         Although her Court-ordered [ECF No. 59] opposition response (of less than two pages) does not cite any legal authority, Alliegro opposes disclosure of her grand jury testimony because it would supposedly

adversely affect the important public interests in (a) assuring that witnesses who provide needed testimony to federal grand juries may do so freely and cooperatively and (b) protecting cooperating witnesses from unnecessary exposure, embarrassment, and potential misuse of grand jury proceedings.

[ECF No. 64');">64, p. 1].

         Alliegro's response argues that the FEC's petition “fails to identify any compelling need” for her testimony and incorrectly contends that the FEC “appears to concede that it can obtain equivalent information by other means . . .” Id. But the FEC has not made such a concession. Indeed, it has taken the opposite position.

         Alliegro also focused on the apparent fact that the February 2019 declaration referenced in the FEC's petition as contradicting the factual basis of her plea [ECF No. 58-1, declaration from FEC counsel Shaina Ward] is uncounseled and argues that the declaration has “no independent evidentiary value.” [ECF No. 64');">64, p. 2].

         IV. Applicable Legal ...


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