Harris v. United States of America
ORDER denying 195 Motion to Compel Production of Documents; denying 196 Motion to Compel Answers to Certified Deposition Questions. Signed by Judge James I. Cohn on 4/4/2012. (npd)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 07-21559-CIV-COHN/SELTZER
MARC M. HARRIS,
UNITED STATES OF AMERICA,
ORDER DENYING MOVANT’S MOTIONS TO COMPEL
THIS CAUSE is before the Court upon the Motion of Movant Marc M. Harris to
Compel Production of Documents [DE 195] (“Documents Motion”) and the Motion of
Movant Marc M. Harris to Compel Answers to Certified Deposition Questions [DE 196]
(“Deposition Motion”) (collectively “Motions”). The Court has carefully considered the
Motions, the Government’s Opposition to Motion of Movant Marc M. Harris to Compel
Production of Documents [DE 197] (“Documents Response”), the Government’s
Opposition to Motion of Movant Marc M. Harris to Compel Answers to Certified
Deposition Questions [DE 198] (“Deposition Response”), Movant’s Reply [DE 201]1,
and is otherwise fully advised in the premises.
On November 24, 2003, Movant Marc M. Harris (“Harris”), represented by
attorneys Frank Rubino and Joaquin Fernandez (“Fernandez”), was convicted of tax
fraud and money laundering offenses. Thereafter, on May 21, 2004, the Court
The Reply is filed in support of both Motions.
sentenced Harris to serve 204 months followed by three years of supervised release.
The Court also fined Harris $20,324,560.00, ordered restitution of $6,588,949.50, and
imposed a special assessment of $1,500.
On October 9, 2007, Harris filed a Section 2255 motion.2 See Motion to Vacate,
Set Aside, or Correct a Sentence [DE 15-1] (“2255 Motion”). As a result, United States
Magistrate Judge Barry S. Seltzer held a two-day evidentiary hearing before issuing a
Report and Recommendation on June 27, 2008. The Report and Recommendation
recommended that the Court deny the 2255 Motion. See Report and Recommendation
[DE 83]. Consequently, on May 18, 2009, Harris filed his “Motion to Supplement,
Expand And/or Amend His 2255 Motion with Newly Discovered Evidence That
Fernandez Was Conflicted by Danger of Federal Criminal Prosecution” [DE 109]
(“Motion to Supplement”).
In his Motion to Supplement, Harris alleged that defense attorney Fernandez
was conflicted because he failed to disclose that he was the target of three grand jury
investigations concerning potential narcotics, money laundering, and tax violations. Id.
at 3-4, 10.3 On September 18, 2009, the Court granted Harris’s Motion, but delineated
the specific area in which it agreed to give Harris’s 2255 Motion further consideration:
The 2255 Motion sought relief based upon twenty-one separate grounds.
Specifically, the 2255 Motion raises eight allegations of ineffective assistance of
counsel, six allegations of prosecutorial misconduct and perjured testimony, one claim
of newly discovered evidence, one venue challenge, three assertions regarding the Presentence Investigation Report and the constitutionality of the United States Sentencing
Guidelines, and two other grounds that allege the trial impinged upon Harris’
constitutional rights. DE 15-1.
The Government timely opposed this motion on June 5, 2009, DE 112,
and Harris filed a reply, DE 128.
[T]he focus of any expansion of the record is limited to Mr. Fernandez’s
pretrial representation of Mr. Harris and any actual conflict that existed
which affected Mr. Fernandez’s representation. In addition, the parties
should address the following:
1. Evidence that Fernandez knew he was the subject of a criminal
2. If so, whether it affected his pre-trial representation of Mr. Harris;
3. Whether Mr. Harris was prejudiced.
DE 137 at 2-3 (“September 18, 2009 Order”). On May 4, 2010, Harris filed an
additional Motion for Leave to Conduct Discovery [DE 156]. On June 1, 2010, the
Court granted in part the Motion for Leave to Conduct Discovery. See DE 163 (“June 1,
2010 Order”). In the June 1, 2010 Order, the Court reiterated that Harris would be
restricted to take discovery of the matters set forth in the September 18, 2009 Order
only. Id. at 4. After the Government provided the Court with a copy of the United
States Attorney’s Office file from the 2003 grand jury investigation of Fernandez, the
Court conducted an in camera review and determined that only one document in the file
need be disclosed to Harris. See DE 172.
After allowing additional time for Harris to continue his investigation regarding
attorney Fernandez’s conflict of interest, the Court set a deadline of November 30,
2011, for Harris to complete depositions of Assistant United States Attorney Brian
Frazier, former Assistant United States Attorney Jacqueline Arango, and Drug
Enforcement Supervisory Special Agent Dennis Hocker (“Special Agent Hocker”). See
DE 181. Harris filed the instant Motions after the Government refused to produce
certain documents requested in connection with the depositions and to allow the
deponents to answer certain questions at the depositions. The Government opposes
the relief sought in both Motions on privilege and relevancy grounds. The Court will
address both Motions individually below.
A. Motion to Compel Production of Documents.
Harris seeks to compel production of various documents from the 2003 grand
jury investigation of Fernandez. Documents Motion at 1-2. Harris also seeks
production of interview notes and reports that Special Agent Hocker prepared in
connection with witness interviews of Jose I. Macia, Carmen Londono, and Carlos
Ramon Zapata. Id. at 2, 30-32 (discussing Requests for Production Nos. 15-18). The
Government represents that “[w]ith the exception of Special Agent Hocker’s reports and
notes, all of the records Harris now seeks were contained in the U.S. Attorney’s Office
grand jury file which has already been reviewed in camara by the Court to determine
whether it contained any documents bearing on the issue of whether Joaquin
Fernandez knew he was the subject of a grand jury investigation.” Documents
Response at 14. The Government objects to the production of Special Agent Hocker’s
notes and reports on relevancy grounds. Id. at 10-11.
The Court has re-reviewed the U.S. Attorney’s Office grand jury file and finds,
consistent with the prior ruling, that these documents are not relevant to the limited
scope of discovery permitted by the Court in its September 18, 2009 and June 1, 2010
Orders. Accordingly, the Court will deny the motion to compel as to Requests for
Productions Nos. 1-14. Because the reports of Special Agent Hocker requested in
Requests for Productions Nos. 15-18 were not previously reviewed in camera, the Court
entered an Order requiring the Government to “produce for in camera review any
reports and notes of Special Agent Hocker requested by Movant in Requests Nos.
15-18.” DE 202 at 2. The Government complied with this order on April 4, 2012. After
reviewing the document produced for in camera inspection, the Court concludes that
this document is also irrelevant to the narrow scope of discovery permitted by the Court.
Accordingly, the motion to compel will be denied as to Requests for Production Nos. 1518.
B. Motion to Compel Answers to Certified Deposition Questions.
Harris also seeks to compel answers to certified deposition questions that
counsel for the Government refused to allow Special Agent Hocker to answer on the
grounds of relevancy and speculation and Assistant United States Attorney Brian K.
Frazier to answer on the grounds of privilege. Deposition Motion at 1. The
Government opposes the Deposition Motion, arguing that the questions Harris seeks to
compel answers to are protected by privilege and/or speculative or irrelevant.
Deposition Response at 3.
1. Questions Directed to Special Agent Hocker.
Harris first argues that it was improper for the Government to object to questions
posed to Special Agent Hocker on relevancy grounds because these questions clearly
fall within the scope of discovery authorized by the Court. Deposition Motion at 5-6.
Harris cites Federal Rules of Civil Procedure 26(b), 30(c)(2), and Appendix A, Article II,
section 2(B)(2) to the Southern District of Florida local rules to support his argument
that it was improper for the Government to instruct Special Agent Hocker not to answer
his questions. Id. at 6.
Rule 26(b) explicitly provides that the scope of discovery may be limited by court
order. Fed. R. Civ. P. 26(b). Additionally, Rule 30(c)(2) provides that “[a] person may
instruct a deponent not to answer only when necessary to preserve a privilege, to
enforce a limitation ordered by the Court, or to present a motion under Rule 30(d)(3).”
Fed. R. Civ. P. 30(c)(2). Thus, the Government’s instructions to Special Agent Hocker
not to answer certain questions based on relevancy grounds would be proper if these
questions fell outside the narrow scope of discovery permitted by the Court in its
September 18, 2009 and June 1, 2010 Orders. The Court will individually address the
motion to compel as to each question posed to Special Agent Hocker.
Question One: “What would be the practice of policy in that time frame about
interviewing someone who was represented by counsel?”
Harris contends that this question is within the scope of discovery permitted by
the Court because “[i]f Mr. Macia was represented by counsel at the time, and if there
was a practice or policy in place at the time that required federal investigators to ask
permission, or otherwise inform defense counsel of impending interviews of their
clients, and if such counsel was actually informed of the impending interview, then the
identity of that person and other and other people potentially informed under this policy
would certainly aid in Harris’ investigation by providing more potential witnesses to the
question of Jack Fernandez’s knowledge that he was the target of criminal
investigation.” Deposition Motion at 7 (emphasis added). Harris’ rationale for why this
question falls within the limited scope of discovery authorized by the Court is premised
on no less than three “ifs.” Thus, the Court agrees with the Government that Harris is
not entitled to compel an answer to this question because it “bear[s] no direct
relationship to the specific issue of whether Fernandez knew he was the subject of a
grand jury investigation [or any other criminal investigation] at the time he represented
Harris.” See Deposition Response at 6.
Question Two: “What did [Carlos Ramon Zapata] say, during that phone conversation,
that he was continuing to assist law enforcement?”
Harris argues that this question, which addresses whether Carlos Ramon Zapata
was still cooperating with the government’s investigation, “could prove relevant in Harris’
investigation.” Deposition Motion at 8. Again, Harris premises the relevancy of this
question on a series of hypotheticals. See id. The Court does not find any relevance
between this question and whether Fernandez knew he was the subject of a criminal
investigation. Accordingly, the Court will deny the motion to compel as to this question.
Question Three: “Special Agent Hocker, let’s talk a little bit more about Carlos Ramon
Zapata. Was there anyone who might be referred to, at least casually, as Mr. Carlos
Ramon Zapata’s handler by law enforcement?”
Once again, Harris premises his argument regarding the relevancy of this
question on speculation that the answer to this question could lead to information within
the limited scope of discovery authorized by the Court. Because this question is too far
afield from the issue of whether Fernandez knew he was the subject of a criminal
investigation, the Court will deny the motion to compel as to this question.
Question Four: “Did you consider [Carlos Ramon Zapata] to be a valuable witness?”
Harris argues that this question is relevant because it “goes to the credibility of
Carlos Ramon Zapata as witness on the point of whether he ever informed Jack
Fernandez of the criminal investigation, or knows of anyone who did.” Deposition
Motion at 9. The Court will deny the motion to compel as to this question because
Special Agent Hocker’s opinion as to the value of Mr. Zapata as a witness is completely
irrelevant as to the issue of whether Fernandez knew he was the subject of a criminal
Question Five: “Did you ever learn who Jack Fernandez practiced law with?”
Question Six: “Did you ever learn who [Jack Fernandez] shared space with?”
Question Seven: “Did you ever learn who [Jack Fernandez] referred cases to?”
Question Eight: “Did you know what lawyers he was friendly with?”
Harris argues that these questions might lead to further witnesses on the issue of
whether Fernandez knew he was under a criminal investigation because Fernandez
might have confided that he was the subject of a criminal investigation to anyone he
practiced law with, shared space with, or referred cases to. Deposition Motion at 10-11.
The Government argues that the motion to compel must be denied because these
questions “are further illustrations of how just far afield Harris’s counsel traversed during
these depositions in an attempt to possibly stumble upon something useful.”
Deposition Response at 7. The Court agrees with the Government that these questions
are too speculative to fall within the scope of the Court’s discovery order. “[T]he
discovery rules do not permit the appellants to go on a fishing expedition.” Porter v.
Ray, 461 F.3d 1315, 1324 (11th Cir. 2006). If the Court were to permit the Harris to
pursue answers to these questions, there could potentially be no limit to the future
discovery that he would seek. In re Fontaine, 402 F. Supp. 1219, 1221 (E.D.N.Y. 1975)
(“While the standard of relevancy is a liberal one, it is not so liberal as to allow a party
to roam in shadow zones of relevancy and to explore matter which does not presently
appear germane on the theory that it might conceivably become so.”) (internal
quotations omitted). Thus, the Court will deny the motion to compel as to these
questions because the Harris cannot be allowed to engage in a speculative fishing
Question Nine: “Would you please try to think of ways by which Jack Fernandez might
have gotten wind of the fact that someone was investigating him?”
Harris argues that this question seeks information directly relevant to whether
Fernandez found out he was the subject of a criminal investigation. Deposition Motion
at 12. Harris also contends that it was improper for the Government to instruct the
witness not to answer a deposition question on the basis of speculation. Id. The Court
agrees with the Government that it was improper for Harris to ask “Special Agent
Hocker to ponder the different ways Fernandez ‘might have gotten wind of the fact that
somebody was investigating him.” See Deposition Response at 7. Special Agent’s
speculation cannot lead to admissible evidence as to whether Fernandez actually knew
that he was the subject of a criminal investigation. Accordingly, the Court will deny the
motion to compel as to this question.
Question Ten: “What were the possibilities that Jack Fernandez might have gotten
wind of the fact that he was being investigated?”
As with Question Nine, the Court finds that this question, which also asks Special
Agent Hocker to speculate how Fernandez might have learned that he was the subject
of a criminal investigation, cannot lead to admissible evidence. Thus the Court will
deny the motion to compel as to this question.
Question Eleven: “Putting aside your lack of personal knowledge, were there any clues
there collectively that he was, you know, fearful that he might be prosecuted?”
This question asks Special Agent Hocker whether Fernandez was fearful of
prosecution. Harris, however, asks Special Agent Hocker to speculate and answer the
question “[p]utting aside his lack of personal knowledge.” Accordingly, the Court will
deny the motion to compel because this question is too speculative to lead to
2. Questions Directed to Assistant United States Attorney Brian Frazier.
Harris next argues that it was improper for the Government to invoke the
deliberative process privilege when refusing to allow Assistant United States Attorney
Brian Frazier to answer certain questions. Deposition Motion at 13-15. Harris also
argues that the Government waived this privilege when “it disclosed in filings before this
Court that the reason the investigation into Jack Fernandez was dropped was
‘insufficient evidence.’” Id. at 15. Finally, Harris contends that his need for the
information protected by the privilege overcomes the qualified nature of the privilege.
Id. The Government opposes the motion to compel, arguing that Harris’ questions to
Assistant United States Attorney Frazier “go to the essence of a prosecuting office’s
confidential internal decision-making processes.” Deposition Response at 4. The
Government also contends that the challenged questions fall outside the scope of the
Court’s discovery order. Id. Finally, the Government also disputes that it waived any
privilege because the Court sua sponte unsealed Government’s “Ex Parte Disclosure of
a Grand Jury Matter.” Id.
The deliberative process privilege is intended to protect the quality of an
agency's decision-making process. Miccosukee Tribe of Indians of Fla. v. United
States, 516 F.3d 1235, 1263 (11th Cir. 2008). Two requirements must be met for the
deliberative process privilege to apply. Id. First, the material must be pre-decisional,
that is “prepared in order to assist an agency decision maker in arriving at his decision.”
Id. (internal citations and quotations omitted). Second, it must be deliberative, “a direct
part of the deliberative process in that it makes recommendations or expresses
opinions on legal or policy matters.” Id. Factual material contained in a “deliberative”
document may be withheld pursuant to the privilege if disclosure of the factual material
would reveal the deliberative process or if the factual material is so inextricably
intertwined with the deliberative material that meaningful segregation is not possible.
Challenged Questions: “Was the investigation [of Jack Fernandez] discontinued
because of insufficient evidence?”
“What was it that made the evidence insufficient?”
“What evidence was needed to make the case sufficient for prosecution?”
“What was lacking?”
The Court finds that is unnecessary to conclude whether the Government’s
assertion of the deliberative process privilege was proper as to these questions. It is
clear that these questions fall outside the scope of limited discovery permitted by the
Court, because they are not targeted to whether Fernandez knew that he was the
subject of a criminal investigation. Accordingly, irrespective of the basis of the objection
asserted by the Government at the deposition, the Court will deny the motion to compel
as to these questions.
Based on the foregoing, it is ORDERED AND ADJUDGED as follows:
Motion of Movant Marc M. Harris to Compel Production of Documents [DE 195]
Motion of Movant Marc M. Harris to Compel Answers to Certified Deposition
Questions [DE 196] is DENIED; and
Per the Court’s December 16, 2011 Order [DE 190], Harris may file any motion
for an evidentiary hearing no later than May 7, 2012.
DONE AND ORDERED in Chambers at Ft. Lauderdale, Florida this 4th day of
Copies provided to counsel of record via CM/ECF.
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