Baranski v. United States of America

Filing 144

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Motion to Quash Deposition Subpoena of Raoul Williams, filed by movants United States Probation Office for the Eastern District of Missouri and Raoul Williams, is DENIED. [Doc. 129] IT IS FURTHER ORD ERED that former U. S. Probation Officer Mr. Raoul Williams shall appear for deposition in this matter and answer petitioner's questions on the topics set forth in the Touhy statement attached to the deposition subpoena previously issued to him. Signed by District Judge Charles A. Shaw on 6/17/2014. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KEITH BYRON BARANSKI,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:11-CV-123 CAS

MEMORANDUM AND ORDER
This coram nobis matter is before the Court on a motion to quash the deposition subpoena
issued to retired U.S. Probation Officer Raoul Williams, filed by movants the United States
Probation Office for the Eastern District of Missouri and Mr. Raoul Williams. Petitioner Keith
Byron Baranski (“petitioner”) opposes the motion and it is fully briefed. For the following reasons,
the motion to quash will be denied.
Background
The background of this action has been set forth in detail previously and will not be repeated
here. See, e.g., Mem. and Order of Feb. 27, 2013 (Doc. 103). In brief, petitioner was convicted of
conspiracy to defraud the United States in connection with false statements made on Bureau of
Alcohol, Tobacco and Firearms (“ATF”) forms related to imported machine guns. United States v.
Baranski, 4:02-CR-361 CAS (E.D. Mo.). On March 14, 2011, petitioner filed his Verified Petition
for Writ of Error Coram Nobis in this matter, asserting that his conviction was obtained through the
false testimony of the government’s key witness, James Carmi. On May 21, 2014, petitioner was
granted leave to file a second amended Verified Petition for Writ of Error Coram Nobis that asserts
additional claims.

On April 10, 2014, petitioner issued a deposition subpoena to former Probation Officer
Williams. The Touhy1 statement attached to the subpoena indicates that Mr. Williams’ testimony
is sought about, among other things, the following matters alleged to have occurred while James
Carmi was under Mr. Williams’ supervision:
a. conversations between P. O Williams and Mr. Carmi;
b. conversations between P. O. Williams and Mr. Carmi’s therapists; and
c. Mr. Carmi’s contact with other law enforcement agencies, such as ATF and DEA.
The Parties’ Positions
Movants seek to quash the deposition subpoena issued to Mr. Williams, arguing that because
United States Probation Office files are confidential court records compiled in the course of
fulfilling court-ordered responsibilities, it follows that the testimony of a probation officer regarding
information and communications exchanged during the probation period would also be confidential.
Movants state that under Local Rule 13.01, records created and maintained by the Probation
Office are subject to disclosure only by order of the Court after a movant has demonstrated a need
for specific information contained in the records, and argue that this restriction would logically also
apply to the subpoenaed testimony of a probation officer. Movants contend that petitioner has not
shown a compelling need for the Mr. Williams’ deposition testimony on matters related to Mr.
Carmi’s probation, and that the Court has not issued an order authorizing that testimony. Movants
contend that because the Court previously ordered the production of certain redacted portions of Mr.
Carmi’s probation file. (Doc. 104), there is no need for petitioner to take Mr. Williams’ deposition,
as his testimony would merely be cumulative or duplicative of what has already been produced.

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United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the regulations promulgated
pursuant thereto by the Department of Justice. See 28 C.F.R. §§ 16.21, et seq.
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Movants argue, too, that if petitioner plans to question Mr. Williams on matters regarding Mr.
Carmi’s Probation file beyond that which the Court ordered produced, such inquiry would involve
confidential matters not subject to disclosure and would violate the Court’s previous Order and
Local Rule 13.01.
Finally, movants assert that the information about which petitioner seeks to depose Mr.
Williams is available from other sources – specifically Mr. Carmi. Movants state that availability
from other sources of the information sought is a key factor in determining whether confidential
probation records should be disclosed.
Petitioner initially responds that the motion to quash should be denied as procedurally
defective because movants failed to comply with the good-faith effort to resolve requirement of
Local Rule 3.04(A), and the motion is untimely. Petitioner also asserts that the motion fails on the
merits, because (1) the Court has previously found that petitioner made a showing of compelling
need for the production of Probation Office records without objection by the government, so
petitioner has also made a showing of compelling need to depose Mr. Williams; (2) the fact that
petitioner has obtained some Probation Office records of Mr. Carmi’s supervision does not obviate
his need to ask questions of Mr. Carmi’s supervising probation officer to obtain additional
information based on those records; (3) the subpoena is consistent with and does not go beyond the
contents of the previously disclosed Probation Office records, so the government’s assertion that
petitioner is seeking information beyond that previously ordered disclosed is without merit; and (4)
Mr. Carmi did not write the Probation Office reports nor was he assigned as his own probation
officer, and given that the core of petitioner’s claims is that Carmi was untruthful in his testimony
and the offer of a Rule 35 motion by the government, the government’s implication that Mr. Carmi’s

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testimony is an alternative source for the testimony of the federal probation officer who authored
the records is meritless.
Movants reply, among other things, that petitioner’s argument concerning a showing of
compelling need is circular because he cannot claim he has a “compelling need” for information he
already possesses. Movants explain that because petitioner already has, in documentary form, the
“very same information he seeks to obtain by deposing Raoul Williams, Petitioner’s need for Raoul
Williams’ deposition can hardly be classified as ‘compelling.’ Duplicative and cumulative, yes.
Compelling, no.” Reply at 4.
Discussion
It is not necessary to address petitioner’s procedural challenges to the motion to quash, as
the Court concludes the motion should be denied on the merits. In this unusual case, after
recognizing the confidential nature of Pretrial Services and Probation Office records and considering
the law concerning release of such records, the Court found that petitioner made a showing of
compelling need for the production of certain limited portions of Mr. Carmi’s supervision and
Pretrial Services records.2 See Mem. and Order of Feb. 27, 2013 at 7-8. The Court described these

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The records sought by petitioner were:

any document in the custody of Pretrial Services and the United States Probation
Office located in St. Louis, Missouri concerning: 1) an agreement by James M.
Carmi to cooperate with the government; 2) a reduction in sentence for Carmi
pursuant to U.S.S.G. § 5K1.1 or Rule 35; 3) perjury by Carmi; 4) suborning of
perjury by Carmi; and 5) employment, potential employment, or attempted
employment of Carmi by the United States as a confidential informant. This motion
includes documents prepared by, and sent to, Susan McGuire, William Brown, or
any other therapist. Carmi has signed DOJ Form 361 (Certification of Identity)
authorizing the release to Baranski and [his] counsel of Carmi’s Pre-Trial Services
and U.S. Probation Offices records.
Baranski Mot. to Release at 1.
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records as “highly material to the ultimate resolution of this matter,” and determined they could not
be obtained from any other source. Id. at 9. Following in camera review, the Court ordered the
disclosure of certain redacted documents that it identified as responsive to petitioner’s request. See
Mem. and Order of Mar. 13, 2013 (Doc. 104).
The Court continues to recognize the confidential nature of Pretrial Services and Probation
Office records, the vital mission of those offices, and the need to ensure that Pretrial Services clients
and Probation Office supervisees are able to fully disclose information to their pretrial services or
probation officers in confidence.3 For purposes of this opinion, the Court finds that the “compelling
need” standard is appropriately applied to the determination of whether petitioner may take the
deposition of former Probation Officer Williams.
The Court finds that petitioner has established a compelling need to take Mr. Williams’
deposition. Movants’ argument that Mr. Williams’ testimony would merely be cumulative or
duplicative of the Probation Office records that have been produced is not persuasive. The portions
of Mr. Carmi’s records that the Court ordered released are clearly germane to the issues presented
in this case. The records do not speak for themselves, as they are summary notes and not narrative
statements of the topics listed in petitioner’s Touhy statement. The Court notes that former
Probation Officer Williams had a much different focus and purpose in carrying out his duties of
supervising Mr. Carmi following his release from incarceration, than petitioner presently has in
attempting to establish facts to support his coram nobis petition. Petitioner argues convincingly that
he must depose Mr. Williams to fully understand and possibly clarify the records, and to determine
if Mr. Williams has relevant information beyond that memorialized in the records, with respect to

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It is therefore significant that Mr. Carmi voluntarily waived any and all privacy rights and
interests in his pretrial services and supervision records.
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the Touhy statement topics. Finally, movants’ assertion that Mr. Carmi is an alternative source for
the information petitioner seeks is meritless. As petitioner observes, Mr. Carmi did not supervise
his own probation, and key disputed issues in this case concern Mr. Carmi’s truthfulness, his
memory, and the effects of the alleged brain damage he suffered as a result of trauma.
Conclusion
For the foregoing reasons, the Court concludes that movants’ Motion to Quash the
Deposition Subpoena of Raoul Williams should be denied, and that Mr. Williams should be required
to appear for deposition in this matter and answer petitioner’s questions on the topics set forth in the
Touhy statement attached to the deposition subpoena previously issued to him. Petitioner’s request
for attorney’s fees in connection with his opposition to the motion to quash is denied.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Quash Deposition Subpoena of Raoul
Williams, filed by movants United States Probation Office for the Eastern District of Missouri and
Raoul Williams, is DENIED. [Doc. 129]
IT IS FURTHER ORDERED that former U. S. Probation Officer Mr. Raoul Williams shall
appear for deposition in this matter and answer petitioner’s questions on the topics set forth in the
Touhy statement attached to the deposition subpoena previously issued to him.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 17th day of June, 2014.

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