The opinion of the court was delivered by: Jerome B. Simandle United States District Judge
These two cases are before the Court upon the petition of Richard Balter for a writ of mandamus [Civil No. 08-1475, Docket Item 1] to enforce an order of this Court entered upon the criminal docket in which he is a defendant [Criminal Docket No. 93-00536.] Mr. Balter has also filed a substantively identical motion on the criminal docket, captioned as a "motion for discovery." [Criminal No. 93-536-01, Docket Item 20]. Finally, Mr. Balter has moved for appointment of counsel in order to file new motions related to his conviction and/or incarceration [Civil No. 08-1475, Docket Item 10]. For the reasons explained below, the Court will deny all three motions.
Richard Balter was convicted of one count of murder-for-hire and three counts of mail fraud. This Court sentenced him to life imprisonment on September 14, 1994. [Criminal Docket No. 93-00536.] More than ten years later, on April 4, 2005, Mr. Balter moved pursuant to Rule 41(g), Fed. R. Crim. P.,*fn1 for the return of property seized prior to his criminal trial consisting of personal and business financial records [Criminal No. 93-536-01, Docket Item 6].*fn2
Mr. Balter was the president and CEO of Northeast Poly Products, Inc. ("NPP"). In 1993, as part of the criminal investigation leading to Mr. Balter's conviction, his business was searched and evidence was seized. The inventory of the search indicates that officers seized dozens of folders of unknown size, several business manuals, assorted business papers and correspondence, diskettes and CDs, and at least a dozen boxes of account records along with items such as desk calendars. (Davis Decl. attachment C.) It is impossible to accurately assess the volume of seized items from the search inventory because of the vagueness of some of the descriptions.*fn3
Respondent did not oppose Petitioner's motion for the return of the property, but did assert that the seized documents were so voluminous as to make transfer to Petitioner, who is incarcerated, difficult or impossible. [Criminal No. 93-00536, Docket Item 7]. On August 21, 2006, the Court, having communicated with authorities at Petitioner's place of incarceration, ordered that "the United States Attorney's Office shall immediately return all personal and business financial records of Richard Balter to him by mail or other package delivery service, at the rate of ten (10) boxes per week until concluded." [Criminal No. 93-00536, Docket Item 16, at 2.]
On February 26, 2007, Respondent submitted a letter from the paralegal assigned to the matter in order to demonstrate its compliance with the Court's order.*fn4 [Criminal No. 93-00536, Docket Item 17]. The letter indicates that Respondent was able to find only twenty-one boxes of materials related to Defendant, and the boxes included attorney work product, grand jury transcripts, as well as some of the seized documents covered by this Court's Order. A document-by-document determination of what was covered by the Order and Rule 41(g), Fed. R. Crim. P., narrowed the related files down to two boxes worth, which were shipped to Petitioner.
Surprised that only two boxes were sent to comply with an Order permitting ten boxes per week, Petitioner filed the present motion for writ of mandamus on March 24, 2008. He seeks the return of the other materials from the twenty-one boxes excluded from the two boxes ultimately sent to him, as well as any other property still in possession of Respondent that is covered by this Court's previous orders. [Civil No. 08-1475, Docket Item 1]. Petitioner has also filed a redundant motion seeking the same relief on the criminal docket [Criminal No. 93-00536, Docket Item 20], along with many ex parte letters requesting discovery of information related to the grand jury proceedings and his records, tangentially referring to other legal theories [E.g., Docket Item 21 (referencing First Amendment)].
The search warrant inventory indicates that the government did, at one time, have more of Petitioner's property than that contained in the boxes sent to him. Respondent's submission in response to the March 24, 2008 petition sheds some more light on what happened to this additional seized property. According to Special Agent James Glynn of the IRS, who participated in the execution of the initial search warrant, all of the evidence obtained on the search warrant inventory was initially transported to the US Attorney's Office in Newark. (Glynn Decl., at 1-2.) During trial in Camden, that portion of the documents needed to prove the crimes ultimately charged were moved to the US Attorney's Office in Camden. Special Agent Glynn's understanding is that after all appeals had been exhausted, the documents not used at trial were returned to NPP or destroyed. (Id.)
Postal Inspector Jeffrey DeFuria corroborates this account of what happened to the evidence. (DeFuria Decl., at 2.) He avers:
Information has been obtained that sometime after sentencing of the subject in 1994, a Postal Inspector from the Postal Inspection Service spoke with David Balter, brother of Richard Balter, to inquire if he had any interest in recovering any of the company's documents and records that were taken into custody during the execution of the search warrant on April 29, 1993 that were in the possession of the government. At that time, David Balter declined to accept return of any documents that related to the business, or his brother, Richard Balter. Afterwards, the case agent for the Internal Revenue Service, as per their agency policy and procedures, handled the destruction and/or disposal of these records. (Id.)
In June 2002, twenty-one boxes of materials retained from the case by the prosecutors were sent to the National Archives. The archives certified possession of the twenty-one boxes and no others. (Probst Decl. ¶ 1.) Judging from the inventories of these boxes, the seized property they contained was only that evidence actually used or intended to be used at trial. (Probst Decl. attachment A "WordPerfect Inventory;" Davis Decl. attachment D ("Rough inventory of the 21 boxes.") These were the boxes ...