The opinion of the court was delivered by: BROTMAN
Count 1 of the redacted indictment underlying this prosecution alleges that defendants Morris Levy, Howard Fisher and Dominick Canterino conspired with Gaetano Vastola to use physical violence against John LaMonte in an attempt to extort funds from LaMonte. In furtherance of this conspiracy, the government alleges that John LaMonte was beaten by Gaetano Vastola on May 18, 1985. Defendants contend that the government does, or at least at some point did, possess surveillance photographs of the alleged beating, which the government is required to make available to the defense, pursuant to Rule 16(a)(1)(C) of the Federal Rules of Criminal Procedure and the Supreme Court's holding in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The government vehemently denies that surveillance evidence of this incident ever existed.
As a result, defendants Levy, Fisher and Canterino moved for an evidentiary hearing to determine whether the government possessed photographs of the LaMonte beating. That motion was granted by order of this court dated March 3, 1988, 680 F. Supp. 709, and an evidentiary hearing was commenced on March 10, 1988 and continued on March 17, 1988 (hereinafter referred to as the " Brady hearing"). At the close of the proceedings on the 17th, two interrelated issues required resolution: (1) whether further evidence should be adduced on the issue of the existence of the sought-after surveillance material and, if so (2) whether subpoenas served by defendants on two journalists, William Knoedelseder and Dan Moldea (hereinafter referred to collectively as "Reporters"), for the purpose of compelling their testimony at the Brady hearing, should be quashed on the basis of the Reporters' privilege.
For the reasons that follow, the court is satisfied that no surveillance of the alleged May 18, 1985 beating occurred. Therefore, the Brady hearing will not be reopened, and the Reporters' motion to quash the subpoenas served on them will be granted.
After the court reviewed these in camera submissions, the parties were notified, in a letter dated March 15, 1988, that the court had "concluded that none of the documents turned over by the government indicate the existence of surveillance evidence of the alleged beating of John LaMonte on May 18, 1985." That letter did, however, provide defendants with the names of those F.B.I. agents assigned to the investigation underlying this prosecution who were on duty on May 18, 1985. Those agents were John J. Mahoney, David E. Von Holle and Robert C. McGonigel.
On March 10, 1988, the court heard oral argument on the Reporters' motion to quash and also took testimony from Dennis Eisman, John LaMonte's lawyer. At the end of that proceeding, the court continued the Brady hearing until March 17, 1988, and reserved on the Reporters' motion to quash.
On March 17, 1988, testimony was adduced from the following witnesses: (1) Lane Bonner, Chief of the Press Office at F.B.I. headquarters; (2) Agent Mahoney; (3) John LaMonte; and (4) Donald V. North, Supervising Special Agent in the Organized Crime Section at F.B.I. Headquarters. Following that testimony, the court heard further oral argument by the parties, and then reserved decision on the motion to quash the subpoenas served on the Reporters and the question of whether a continuation of the Brady hearing was warranted.
Before evaluating the evidence presented both prior to and during the Brady hearing to determine whether enforcement of the subpoenas served on the Reporters and/or further proceedings on the issue of the existence of surveillance are necessary, it is important to emphasize the court's purpose in having granted defendant's motion for an evidentiary hearing. It is well established that,
in the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland, 373 U.S. 83 [10 L. Ed. 2d 215, 83 S. Ct. 1194], it is the [government] that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final.
Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 1003, 94 L. Ed. 2d 40 (1987).
In the present case, defendants alerted the court to the possible existence of photographs of the alleged beating of John LaMonte at the hands of Gaetano Vastola -- items to which, as the government conceded during the February 25, 1988 oral argument on the motion for an evidentiary hearing, the defendants would be entitled. This court then found that defendants' proffer, as detailed in Part III(A) of this opinion, raised a genuine issue of disputed fact as to the existence of these photographs and, accordingly, directed that a hearing be held, which would be "strictly limited to material which is relevant to the existence of surveillance evidence of the alleged beating of John LaMonte on May 18, 1985." United States v. Vastola, 680 F. Supp. 709 (D.N.J. 1988). The Third Circuit has approved this approach for insuring that the prosecution has not wrongly withheld exculpatory evidence. Virgin Islands v. Martinez, 780 F.2d 302, 306 (3d Cir. 1985); United States v. Dansker, 565 F.2d 1262, 1264 (3d Cir. 1977), cert. dismissed, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1978).
As a result, it is left to the court to satisfy itself to a reasonable degree as to the non-existence of the sought-after material and, upon doing so, end the inquiry. This method provides defendants with a court determination of the Brady issue based on "a hearing appropriate to the factual inquiry," United States v. Alexander, 748 F.2d 185, 193 (4th Cir. 1984), and defendants are entitled to nothing more.
(A) Defendants' Original Proffer
Defendants submitted, in support of their motion for an evidentiary hearing, affidavits and exhibits which outlined the following factual circumstances.
First, defendants pointed to the testimony of F.B.I. Agent Mahoney, given during the bail hearing for Gaetano Vastola. That testimony indicates that the F.B.I. began periodic surveillance of Vastola and others four months prior to the date of the alleged beating of John LaMonte, that the F.B.I. had discovered through their surveillance that Vastola intended to physically harm LaMonte, and that Agent Mahoney and an Agent Thomas Cupples notified LaMonte of this discovered threat of harm, in an effort to recruit LaMonte into the Federal Witness Protection Program. Defendants argue in the affidavit of Martin London, Esquire, counsel for defendant Levy, that, "in light of the F.B.I.'s demonstrated concern for LaMonte's safety and their ongoing surveillance of Vastola, it would be difficult to accept that LaMonte attended the meeting with Vastola by himself, unwatched, unrecorded." See London Affidavit at para. 6.
Second, defendants submitted a passage from a book entitled Dark Victory: Ronald Reagan and the Mob, authored by Dan Moldea, which states that the F.B.I. photographed the LaMonte beating. Defendants also presented the affidavit of Stuart M. Cobert, Esquire, one of the counsel for defendant Levy, which recounts a conversation between Cobert and Moldea wherein Moldea told Cobert that his source of information for the above passage was a Los Angeles Times reporter by the name of William Knoedelseder. See Cobert Affidavit at para. 3. The Cobert affidavit also indicates that Moldea said that he spoke with sources at the F.B.I., who told Moldea that the F.B.I. had "memorialized" the alleged beating, but that Moldea refused to divulge the identity of these sources. Id.
Third, defendants provided an article written by William Knoedelseder, which appeared in the Los Angeles Times on March 3, 1986. The article asserts that the May 18, 1985 incident was photographed by the F.B.I. Additionally, the affidavit of Leon Baer Borstein, Esquire, counsel for defendant Fisher, submitted in support of defendants' motion, states that Borstein spoke with Knoedelseder, who told him that the source of his information regarding photographs of the LaMonte beating was Dennis Eisman, Esquire, attorney for John LaMonte. See Borstein Affidavit at para. 6. The Borstein affidavit also indicates that Knoedelseder refused to tell Borstein whether the F.B.I. had confirmed or denied the Los Angeles Times article, but that Knoedelseder had told Borstein that he was a "careful reporter." Id.
Fourth, defendants submitted the complaint filed in a civil action captioned Scorpio Music, Inc. v. MCA Corp., C.A. #85-1591 (E.D.Pa.), which was signed by Dennis Eisman and alleges that the beating of LaMonte was photographed by the F.B.I. Also, the Borstein affidavit states that Eisman told Borstein that the former had been informed by one of more F.B.I. agents that they had observed and photographed the May 18, 1985 incident.
(B) The Evidence Presented At The Brady Hearing
The court makes the following findings of fact, predicated on the substantially uncontradicted testimony of Agent Mahoney and John LaMonte adduced at the Brady hearing on March 17, 1988.
1. Based on surveillance information obtained by the F.B.I. during their investigation of Gaetano Vastola and others named in the indictment herein, Agents Mahoney and Cupples met with LaMonte two to four weeks prior to May 18, 1985, and informed him that they believed he was in danger of getting a beating from Vastola. (T. 3/17/88 -- Mahoney at 53-54; LaMonte at 102).
Despite this warning, LaMonte, who did not feel that he was in danger, told Agents Cupples and Mahoney that he could "handle himself." (T. 3/17/88 -- Mahoney at 53-54; LaMonte at 107-108).
2. On May 18, 1985, at approximately 11:00 a.m., LaMonte left his home by car and drove to a meeting with Vastola that was to take place in the parking lot of a hotel located in Hightstown, New Jersey. (T. 3/17/88 -- LaMonte at 95). On his way to the hotel, LaMonte missed the Hightstown exit off the New Jersey Turnpike, and had to make a U-turn at the toll booth at the next exit, in order to backtrack. In doing this, LaMonte noticed another car making a similar U-turn at the toll booth. ...