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uNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK-- --- - - - - - - - -- -- - - -- - -- - -- - - - - - - --- -- - - -- - -- -- - - - -- - - - -x

UNITED STATES OF AMERICA,

v. NOTICE OF MOTION

CHRISTIAN BROS. CONTRACTINGCORP. AND JASON VALE 02 C~tJ ~~\

t iLt.:1J~N aUERK's OFHCE

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Defendant.

- -- - - - - - -,- -- - - - - -- - - - -- -- --- -~ -- - - -- -- - -- - -- - - -- -- - -- - --x. ., -

PLEASE TAKE NOTICE, that the defendant JAS6RiC~~lfl'~9Kdl~r~ugh his attorney'

JAN A. ROST AL, ESQ., of the Federal Defender Division of the Legal Aid Society, and upon

the annexed declaration and all papers and proceedings heretofore and herein, will move the

Court, before the Honorable John Gleeson for the Eastern District of New York, 225 Cadman

Plaza East, Brooklyn, New York, on January 24,2003 at 3:00 p.m., for an Order:

- 1. Pursuant to the Fifth and Fourteenth Amendments to the US: Constitution, disIllissing

the Order to Show Cause, based on the government's failure to obtain an indictment;

n. Pursuant to the Fifth and Fourteenth Amendments to the US. Constitution, and

FR.Cr.P. 42(a)(3), disqualifying the Hon~John Gleeson and Charles Kleinberg, Esq., from this

case; and

m. Pursuant to the Federal Rules of Criminal Procedure, ordering the government to,

provide the defendant with a Bill of Particulars and with certain discovery; and

IV. Pursuant to the Fifth and Fourteenth Amendments to the US. Constitution,

suppressing statements made by the defendant as a civil deposition; and

V. Allowing defendant to make further motions after reviewing computerized discovery

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turned over too late to review prior to the filing of motions; and

VI. . Granting such other and further relief as the Court may deem just and proper.

DATED: BROOKLYN, N.Y.December 16, 2002

JAN A. ROSTAL, ESQ.FEDERAL DEFENDER DIVISIONTHE LEGAL AID SOCIETY16 COURT ST., 3RDFLOOR

. .BROOKLYN, N.Y. 11241ATTORNEY FOR DEFENDANTJason Vale

i

TO: ASSISTANT U.S. ATTQRNEY Charles KleinbergCLERK Of THE COURTDEFENDANT

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF .t\TEWYORK

-- - -- - - - - - - - -- --- - -- -- --- -- - - - ---x

UNITED STATES OF AMERICA,

v. AFFIRMA TION

CHRISTIAN BROS. CONTRACTINGCORP. AND JASON VALE 02 CR 466 (JG)

Defendant.--- -- -- --x

STATE OF NEW YORK)) sS.:

KINGS COUNTY )

JAN ROST AL, an attorney admitted to practice in this Court, affirms under penalties of

pe~jury pursuant to Title 28, United States Code, Section 1746, that:

1. I am a staff attorney at the Federal Defender Division of the Legal Aid Society and I

am assigned to represent the defendant in the above-captioned case, Jason Vale. This declaration

is made in support of Jason Vale's for relief in the NOTICE OF MOTION submitted herewith.

2. This at1irmation is based upon my review of the discovery provided by the

government, all court proceedings, and conversations with the prosecutor and my client.

3. This prosecution for criminal contempt arises out of the government's allegations that

Jason Vale violated a Preliminary and Permanent Injunction issued by this Court in April and

November, 2000. On November 24, 1999, the government filed a Civil Complaint, CV 99-7683,

against Mr. Vale and his corporation, requesting that they be enjoined from, among other things,

continuing to run their business of selling amygdalin products. The parties conducted discovery

pursuant to the Federal Rules of Civil Procedure, including Notice to Mr. Vale and the taking of

his deposition on April 14, 2000. At the time of the deposition, there were no pending criminal

charges against T'v1r.Vale. I have reviewed the transcript of that deposition, and there were no

warnings gi ven to Mr. Vale of any contemplated criminal charges. I have also spoken with the

attorney who appeared on Mr. Vale's behalf at the deposition, and he tells me that the

government represented during the deposition that the deposition was being taken only for the

civil case and that there was at that time no active criminal investigation against Mr. Vale. The

parties agreed to an Order Granting Preliminary Injunctive Relief On Consent on April 20, 2000.

The parties agreed to an Order Granting Permanent Injunctive Relief on Consent on November

16,2000.

4. On April 16, 2002, the government filed an Order to Show Cause (OSC) why he

should not be held in contempt of court. The government did not prosecute MT. Vale by way of

indictment. The alleged contemptuous conduct involves the sale of apricot seeds and related

amygdalin products by persons whom the government contends were working on Me Vale's

behalf. See Government's Declaration In Support of Order to Show Cause.

5. The prosecutor who filed the OSC is Charles Kleinberg, Esq, an Assistant United

States Attorney for the Civil Division of the United States Attorney's Office. To my knowledge,

no Assistant United States Attorney for the Criminal Division has been involved in this case.

Me Kleinberg represented the ED.A. in its civil lawsuit against Mr. Vale for injunctive relief.

6. While the civil case was pending, the F.D.A. continued to conduct undercover

operations, and it will attempt to introduce evidence obtained in these operations in the criminal

contempt case.

7. At the defendant's request, the government has provided cel1ain discovery after the

defense visited the F.D.A. offices and reviewed some boxes containing physical evidence and

written materials seized pursuant to a search warrant. We requested copies of some of the

materials, and those copies have numbered in the thousands. (While I have not personally

counted them, my eyeball estimate of the documents I have organized into binders suggests that

the discovery includes between 8,000 and 10,000 pages). These documents do not include the

physical evidence, of which there are several boxes of materials. The defendant also requested a

Bill of Particulars, which the government refused to answer. See Letter of Jan A. Rostal, dated

November 19, 2002; Letter of Charles Kleinberg, dated November 27,2002. Attached as Exhibit

A. As of this writing, the government contends that it has turned over "all Rule 16 discovery

materials, although it has been unclear whether the government fully understands its obligations

under Rule 16 (a)(l)(A) where it has charged both an individual and a corporation. After a

specific request was made under Rule 16(a)(1)(A) requesting that all discovery be provided under

the last section of the Rule (applying where the defendant is a corporation), Mr. Kleinberg

responded that "I am not turning over any discovery for Christian Bros., since nobody has

demanded that on behalf of Christian Bros. That can only be demanded by Christian Bros. itself

which must be represented and it's not in the case."

8. The government also agreed at our last status conference in October, 2002, to turn

over computers seized in a search of a residence in the year 2000. I expected to get copies of the

hard drives from the computers, but those copies were never forthcoming. Instead, the

government dropped off a number of computers at my office while I was on vacation during the

week of Thanksgiving. When I returned to the office on December 2, 2002, I had to consult with

a computer expert to detennine how to get the hard drive information out of the computers. My

expert tells me that this is going to take time, and I do not believe that I will receive the

information until January, 2003. I have no idea at this point how long it will take me to review

it. Once I have reviewed these materials, I my need to seek the Court's permission to file further

motions.

9. The continuation of Mr. Kleinberg as the criminal prosecutor as well as the civil

attorney representing the FDA in the underlying presents various conflicts of interests as well as

unfair advantage. Among others, Mr. Kleinberg represents the government on Mr. Vale's

continuing obligations under the Permanent Injunction. Should Mr. Vale anyone associated with

him wish to file a civil action for modification or clarification of the injunction, the attorney

representing the FDA would presumably be Mr. Kleinberg.

10. Mr. Vale is a cancer survivor who attributes his recovery to the ingestion of apricot

seeds and the use of their related products. He continues to believe in the efficacy of the

products for both himself and others, based on his own experience, his religious convictions (he

believes that the Bible prescribes foods containing amygdalin), and his observations of others'

experiences. He may in the future wish to bring a civil action for clarification of the underlying

Injunction against him as it applies to his future conduct. I cannot represent Mr. Vale on any

civil action in this regard, and he would have to retain an attorney to do so. However, I do not

believe that the FDA can regulate "pure speech" on the subject. There is nothing in the FDCA to

prohibit pure speech, so long as it is not coupled with labeling or selling of products, and if the

issue were properly raised to the Court for clarification, I believe that Mr. Vale might prevail.

See, e.g., Thompson v. Westem States Medical Center, 122 S.Ct 1497 (2002) (pharmacies

brought action for declaratory relief against FDA Modemization Act, prohibiting advertising and

promotion of particular compounded drugs; provisions held unconstitutional rest11ctions of

commercial speech); Ashcroft v. Free Speech Coalition, Inc., 122 S.Ct 1389 (2002)

(pomographers brought action to enjoin prosecution against purveyors of vi11ual child pom; held

that application of law to vil1ual, as opposed to real, child porn violated the First Amendment);

Conant v. Walters, 2002 WL 31415494 (9th Cir. 2002) (upholding injunction prohibiting

government from investigating physicians who recommend, but do not prescribe, medical

marijuana to patients).

Dated: Brooklyn, New YorkDecember 16, 2002

Signed and Sworn,

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK

x

UNITED STATES OF AMERICA,

MEMORANDUM OF LAWv.

CHRISTIAN BROS. CONTRACTINGCORP. AND JASON VALE

02 CR 466 (JG)

Defendant.x

PRELThflNARYSTATEMENT

This prosecution for criminal contempt arises out of the government's allegations that

Jason Vale violated a Preliminary and Permanent Injunction issued by this Court in April and

November, 2000. The government has already taken the position that the case is serious enough

to warrant a jury trial. The alleged contemptuous conduct involves the sale and promotion of

apricot seeds and related amygdalin products in violation of the Food Drug and Cosmetic Act

(FDCA) by Mr. Vale, his corporation, and persons whom the government contends were working

on Mr. Vale's behalf.

Despite the grave consequences that the government believes Mr. Vale should suffer for

his involvement with these products-which are for the most part regulated by the Food and Drug

Administration (FDA) only to the extent that claims are made about their efficacy--it has

proceeded against Mr. Vale in a most unusual way.

Instead of conducting an investigation and turning the case over to the Criminal Division

of the United States Attorney's Office for prosecution under 21 U.S.c. sec. 331-the statute

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Congress enacted proscribing the very conduct the FDA sought to stop-the FDA chose instead to

embroil Mr. Vale in a lengthy and costly civil action to enjoin him from doing what the law

already apparently proscribed: selling apricot seeds while making claims they could treat, cure,

or mitigate disease.

The government's strategy was clever. In the civil proceeding, Mr. Vale had retain

counsel. Prolonged litigation with the FDA would have cost him more than he could afford to

stay in business. That the government fully expected Mr. Vale to violate the order is clear from

the fact that it continued undercover operations throughout the pendency of the civil litigation.

Nearly two years after the end of the civil case, the government brought this contempt

action by way of an Order to Show Cause (OSC) rather than by indictment despite having

acknowledged the serious penalties for the crime alleged. The government attorney who pursued

the contempt charges, Charles Kleinberg, is an Assistant United States Attorney from the Civil

Division who was intimately involved in the underlying civil action, and whose name appears as

representing the FDA on both the Preliminary and Permanent Injunctions. Furthering the

appearance of a conflict of interest, the government did not put the case in the "wheel" for

random selection of judges, but rather brought the case directly before Your Honor, knowing that

this Court had presided over and made rulings concerning the very Injunctions that will be at

issue in the contempt case.

Finally, the government has pressed for an early trial date knowing that the only party

unfamiliar with the underlying civil litigation is defense counsel, and has even denied defense

counsel the most rudimentary information she needs to mount a defense, such as when, where,

and by and to whom the apricot seeds were sold.

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Based on all of these concerns, the defense most respectfully submits the following

motions for the Court's consideration. We also request the opportunity to present any further

motions that become apparent after defense counsel has had an opportunity to review computer-

generated discovery material provided by the government too late to review prior to the motions

filing deadline.

MOTION TO DISMISS ORDER TO SHOW CAUSE BASED ON GOVERNMENT'SBYPASSOFTHEF~THAMENDMENTGRANDJURYCLAUSE

The first question presented in this motion is whether the defendant in a serious criminal

contempt proceeding should have the right to be indicted by a Grand Jury. Although other

motions (such as the Motion to Disqualify, discussed below) might logically be considered first,

the issue of what constitutional procedures applies in a contempt case informs the remaining

motions, and it will be discussed first.

It is clear under the United States Supreme Court precedent that an accused contemnor is

entitled to fundamental fairness as guaranteed under the Fifth and Fourteenth Amendments to the

Consititution. We respectfully submit that a recent Supreme Court trend toward procedurally

conforming serious criminal contempt cases to other criminal cases supports the Grand Jury right

as necessary to guarantee fundamental fairness.

The Fifth Amendment to the United States Constitution states: "No person shall be held

to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual

service in time of War or public danger." Federal Rule of Criminal Procedure 7 also states that

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an offense which may be punished by imprisonment for a term exceeding one year or at hard

labor shall be prosecuted by indictment.

In early discussions concerning which constitutional rights apply in a criminal contempt

prosecution, the United States Supreme Court stated that the Grand Jury Clause does not. Green

v. United States, 356 US. 165, 187,78 S.Ct. 632, 645, 2 L.Ed.2d 672 (1958). Nevertheless, the

rule in Green v. United States, supra, has been undermined, if not overruled, by more recent

Supreme Court decisions, particularly Bloom v. illinois, 391 US. 194,88 S.Ct. 1477,20 L.Ed.2d

522 (1968), where the Supreme Court held that jury trials are indeed constitutionally required

under the Fifth and Fourteenth Amendments in serious criminal contempt cases. See also Taylor

v. Hayes, 418 US. 488,500 (1974). The Bloom decision calls Green into serious question, as

Green itself relies upon a long line of cases holding that no jury trial is constitutionally required

in criminal contempt-a proposition Bloom reversed. 356 U.S. at 183 n.14, 187,78 S.Ct. at 643

n.14,644-645.

In reversing the earlier decisions, the Bloom Court acknowledged that the historical view

of contempt as wholly distinct from other types of "crime" had to fall in the face of fundamental

fairness:

Given that criminal contempt is a crime in every fundamental respect, the question iswhether it is a crime to which the jury trial provisions of the Constitution apply. We holdthat it is, primarily because in terms of those considerations which make the right to jurytrial fundamental in criminal cases, there is no substantial difference between seriouscon tempts and other serious crimes. Indeed, in contempt cases an even more compellingargument can be made for providing a right to jury trial as a protection against thearbitrary exercise of official power. Contemptuous conduct, though a public wrong, oftenstrikes at the most vulnerable and human qualities of a judge's temperament. Even whenthe contempt is not a direct insult to the court or the judge, it frequently represents arejection of judicial authority, or an interference with the judicial process or with theduties of officers of the court.

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Bloom v. State of Illinois, 391 U.S. 194,202 (1968).1

More recently, the Supreme Court further extended the right to a jury trial in a case where

the trial court tried to avoid one by characterizing a multimillion dollar fine against a union for

violating an injunction as "civil" rather than "criminaL" United Mine Workers v. Bagwell, 512

U.S. 821 (1994). The United Mine Workers case settled the rule that petty summary contempt

procedures are now permissible only when the contempt occurs in the court's presence (and thus

must be dealt with immediately to maintain order and judicial authority). United Mine Workers,

supra, at 832. However, even where the contempt is committed in the court's presence, it cannot

deny the contemnor the right to trial by jury if he delays punishment until the end of the trial.

See Taylor v. Hayes, 418 U.S. 488, 496-503 (1974).

l In a recent article, Professor Robert Pushaw describes the Supreme Court's evolutionbetween Green and Bloom, noting that

in his dissent in Green, Justice Black chided the Court for distorting Englishhistory and ignoring that the Constitution's criminal procedure provisions(including those guaranteeing a jury trial) cQntained no exception for contempt.Moreover, he rejected a claim of inherent power, as courts would never truly needto act with "special dispatch in punishing criminal contempts, especially thoseoccurring beyond the courtroom(:]" "(N]ecessity," if it can justify at all, must atleast refer to a situation where the extraordinary power to punish by summaryprocess is clearly indispensable to the enforcement of court decrees and theorderly administration of justice. Or as this Court has repeatedly phrased it, thecourts in punishing contempts should be rigorously restricted to the "least possiblepower adequate to the end proposed." Here the trial judge had used summaryprocess merely because it was "convenient or desirable"-- i.e., "faster and cheaperthan a jury." The Constitution, however, required impartial juries to ensurejustice--an especially compelling need in the crime of contempt, where judgeswere often biased and could not be effectively checked. A decade later, the Courtaccepted Justice Black's reasoning, overruled Green, and held that theconstitutional right to a jury trial for serious criminal contempts outweighedconcerns for preserving judicial independence, dignity, and efficiency.

Pushaw, Robert 1., Jr., "The Inherent Powers of Federal Courts and the Structural Constitution,"86 Iowa Law Rev. 735, 771-72 (March 2001).

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The United Mine Workers Court stressed that the contempt power is "uniquely. . . liable

to abuse." United Mine Workers, 512 US. at 831 (quoting Bloom, 391 U.S. at 202 and Ex parte

Terry, 128 U.S. 289 (1888). "Unlike most areas of law, where a legislature defines both the

sanctionable conduct and the penalty to be imposed, civil contempt proceedings leave the

offended judge solely responsible for identifying, prosecuting, adjudicating, and sanctioning the

contumacious conduct." United Mine Workers, 512 U.S. at 831. The United Mine Workers

Court also discussed the different types of contempt, and appears to conclude that in the unique

case of indirect contempt involving "out-of-court disobedience to complex injunctions," the most

pressing case can be made for the full ballast of criminal procedural protections to "protect the

due process rights of the parties and prevent the arbitrary exercise of judicial power. Id. at 834.

Perhaps of even greater significance to Mr. Vale's case is Young v. United States ex reI.

Vuitton, 481 US. 787,808 (1987). In Young, the district court appointed Vuitton's own

attorneys to prosecute a criminal contempt charge of violating the court's injunction prohibiting

Young from infringing Vuitton's trademark. While acknowledging that federal judges have

inherent power and discretion to appoint a private prosecutor to vindicate the Court's authority to

punish disobedience of their orders, the Court held that the attorney appointed cannot be an

interested party (i.e., the attorney representing the beneficiary of the order allegedly violated).

Young, 418 US. at 804-09. 2

2 In his concurrence, Justice Scalia argued that courts had no "judicial power" toprosecute, either directly or by appointment, disobedience of their judgments (includinginjunctions). Young, id. at 815-825 (Scalia, J. concurring in the judgment). Justice Scaliaappears to take a distinct view toward criminal contempt cases that would require even moreprocedural protections than the Court's majority has explicitly afforded. In his Youngconcurrence, Justice Scalia writes: "That one and the same person should be able to make therule, to adjudicate its violation, and to assess its penalty is out of accord with our usual notions of

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The Young case is particularly instructive on the question of whether Green should be

considered overruled by the Supreme Court and the defendant viewed as constitutionally (at least

through the Fifth and Fourteenth Amendments) guaranteed the right to be indicted by a grand

jury. We submit that Young further solidifies the Supreme Court's evolving approach toward

applying the traditional checks and balances inherent in our criminal justice system to contempt

cases. In reaching its conclusion requiring an independent prosecutor, the Young Court stated:

It is a fundamental premise of our society that the state wield its formidablecriminal enforcement powers in a rigorously disinterested fashion, for liberty itselfmay be at stake in such matters. We have always been sensitive to the possibilitythat important actors in the criminal justice system may be influenced by factorsthat threaten to compromise the performance of their duty.

418 U.S. at 810.

Thus, the Supreme Court has stated that a defendant in a serious contempt case has a right

fairness and separation of powers." Id. at 841. Indeed, Justice Scalia's opinions in theenforcement of injunctions and the contempt area reflect a "profound suspicion of expansiveinterpretations of judicial power." Slotnick, David M., "Justice Scalia and His Critics: AnExploration of Scalia's Fidelity to His Constitutional Methodology," 48 Emory L.J. 1377, 1429(Fall 1999). See Lewis v. Casey, 518 U.S. 343, 362 (1996) (Justice Scalia writing for themajority stated that "the injunction imposed by the District Court was inordinately--indeed,wildly--intrusive [I]t is the ne plus ultra of what our opinions have lamented as a court's 'in thename of the Constitution, becom [ring] ... enmeshed in the minutiae of prison operations." ');Madsen v. Women's Health Ctr. Inc., 512 U.s. 753, 815 (1994 (Scalia, J.,concurring in part,dissenting in part) (describing a "misguided trial court injunction" permitted by the Court as a"powerful loaded weapon lying about"); United Mine Workers v. Bagwell, 512 U.S. 812, 842(1994) (Scalia, J, concurring) (criticizing contemporary court that "routinely issue complexdecrees which involve them in extended disputes and place them in continuing supervisory rolesover parties and institutions" without historical foundation); Harper v. Virginia Dep't ofTaxation, 509 U.S. 86, 106-07 (1993) (Scalia, J., concurring) (supporting "traditional view. . .that prospective decision making is quite incompatible with the judicial power" and is clearly a"practical tool of judicial activism.").

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to criminal procedural protections that include the most fundamental to our system. Bloom,

supra. It has also been careful to focus on the particular need for those protections in cases

involving out-of-court violations of complex injunctions. United Mine Workers, supra. And,

finally, the Court has reiterated the unique threats to liberty present in contempt cases, and the

resulting heightened need for prosecutorial disinterest. Young, supra.

The trend signaled by the Supreme Court in these modem cases appears to answer

affirmatively the question of whether fundamental fairness requires the insertion of a Grand Jury

as a check on the discretion of an interested prosecutor who represented the plaintiff in the civil

lawsuit, and the power of the Court whose Order was allegedly violated.3 By bypassing the

Grand Jury process, the prosecutor has asked the very Court which issued the order to pass on

whether there is probable cause to believe the order was violated. As in Bloom, an "even more

compelling argument can be made for providing a right" to be indicted by a grand jury "as a

protection against the arbitrary exercise of official power." 394 US. at 202. The Court should

not be placed in the position of victim, judge, and Grand Jury all at once.

One last point should not be forgotten. The defendant is charged with having engaged in

conduct that Congress has independently described as a crime. 21 US.c. §331. The prosecutor,

presumably unhappy with the one year, or at most, three year, maximum incarceratory penalty

Congress associated with that crime, chose to charge him with contempt, a crime carrying no

statutory maximum at all. 18 U.S.C. § 403. The fact that the very conduct that the government

3 We note that there are many reported cases in which the grand j ury process has beenused, without discussion, in criminal contempt cases. See,~, US. v. Duncan, 502 F2d 1021(1oth Cir. 1974) (contemnor indicted by grand jury on charges of violating inj unction against him

by the SEC); US. v. Neely, 966 F2d 1445 (4th Cir. 1992) (unpublished); US. v. Sweeny, 52FSupp 2d 164 (D.Mass. 1999); US. v. Brummitt, 503 FSupp 852 (D.C.Texas 1980).

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claims gives rise to the contempt charge is itself a crime suggests that the prosecutor is

attempting to circumvent both the applicable punishments and the constitutional process that

would apply without question had he charged 21 U.S.C. §331.

MOTION DISQUALIFY THE DISTRICT COURT JUDGE WHOIS THE VICTIM OF THE CHARGED CRIME

AND APPOINTMENT OF A DISINTERESTED PROSECUTOR

Under the unique circumstances of this case and the authority cited above, the defendant

respectfully moves for disqualification of both the Judge and the prosecutor, as both were

involved in the underlying civil litigation.

As to the question of judicial disqualification, we are mindful of F.R.Cr.P. 42(a)(3).

While Rule 42(a)(3) does not require disqualification except where the contempt involves

"disrespect to or criticism of a judge," there may be cases "in which it is the better practice to

assign a judge who did not preside over the case in which the alleged contumacy occurred to hear

the contempt proceeding." Nilva v. U.S., 77 S.Ct 431 (1957) (discussing F.R.Cr.P. 42(b), the

predecessor to F.R.Cr.P. 42(a)(3)). Furthermore, in the Nilva dissent, Justice Black, joined by

then Chief Justice Warren, Justices Douglas and Brennan, wrote:

The majority relies on [Rule 42(b)'s] silence to reject petitioner's contention that the trialjudge here should have stepped aside. . . But at most Rule 42(b) only permits a negativeinference that a judge who prefers contempt charges for violations of his orders and whois intimately involved in related proceedings bearing on these charges can sit in judgmenton the alleged contempt. In any event, Rule 42(b) is a rule promulgated by this Court andwhere it is not explicit we should not interpret it in a manner to deny a fair trial before animpartial arbiter.

Nilva, 77 S.Ct. at 404 (Black, J. dissenting); see also Mayberry v. Pennsylvania, 91 S.Ct 499,

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505 (1971) (in in-court contempt case, "[o]ur conclusion is that by reason of the Due Process

Clause of the Fourteenth Amendment a defendant in criminal contempt proceedings should be

given a public trial before a judge other than the one reviled by the contemnor."); U.S. v. Martin-

Trigona, 759 F.2d 1017,1025 (2d Cir. 1985) (suggesting that where contempt is not summary,

i.e. the trial and sentence for contempt can be delayed until after trial on the underlying matter,

"the desirable procedure is to cite the indi vidual and refer the contempt charge to another

judge").

Even if viewed as discretionary, judicial disqualification seems particularly appropriate

where, as here, the defendant has been charged in an Order to Show Cause, thus bypassing the

Grand Jury's neutral role in passing upon the question of whether probable cause exists to charge

the defendant. The Court was also privy to information submitted in the underlying civil case in

support of the original complaint, and during the ongoing litigation, that is beyond the time

period charged in the indictment. It presents an appearance of impropriety for this Court, which

has viewed evidence in the civil case that is inadmissible in the criminal case, to preside over the

criminal matter.

Once again, the Young case, discussed supra, represents a shift in the Supreme Court's

view of contempt cases that supports the defense position that both this Court and the prosecutor

ought to disqualify themselves. Specifically as to the continuation of the same prosecutor who

represented the plaintiff in the civil case, theYoung Court held that "counsel for a party that is the

beneficiary of a court order may not be appointed as prosecutor in a contempt action alleging a

violation of that order." Young v. United States ex reI. Vuitton, 481 U.S. 787, 809 (1987).

In United States v. Terry, 17 F.3d 575 (2d Cir. 1994), the Second Circuit considered the

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question of whether the Supreme Court's ruling in Young extended to the appointment of a

government attorney as the contempt prosecutor. In Terry, the government attorney was the

Attorney General for the State of New York, who had litigated the underlying petition for

injunctive relief. The Young court reviewed two post- Young cases, S.E.c. v. Carter, 907 F.2d

484 (5th Cir. 1990) and F.T.C. v. American National Cellular, 868 F.2d 315 (9th Cir. 1989), both

of which held that Young's concerns may be implicated by appointment of a government

attorney as prosecutor in a contempt proceeding. The Terry court ultimately sided with the Ninth

Circuit in American National Cellular, finding that while Young "does not automatically

disqualify government attorneys who bring a civil action from serving as special prosecutors in a

subsequent contempt proceeding," the unique facts and circumstances of a given case may give

rise to disqualification. Terry, 17 F.3d at 578.

We respectfull y submit that the Young: case compels a finding that because Charles

Kleinberg, Esq. represented the F.D.A. in the underling civil action, and continues to do so, he

represents an interested party and is not the sort of disinterested attorney contemplated under

Young. Once cast in his role as advocate for his client, the F.D.A., and embroiled in civil

litigation, Mr. Kleinberg loses his ability to distinguish between his duty to the public in even-

handedly enforcing the law and his obligations to his client in advancing their interests.

Moreover, he continues to represent the F.D.A. on the ongoing enforcement power over the

Permanent Injunction, and could unfairly use information obtained in one case to gain leverage in

further civil proceedings against Mr. Vale, or anyone else it claims is or was involved with him.

Mr. Kleinberg has already suggested in court proceedings that he is continuing to monitor

the defendant's compliance with the outstanding Injunction. Moreover, we have asked the Court

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and the government for some clarification of whether Mr. Vale would be violating the injunction

if he engages in public discussions regarding his personal belief in amygdalin products and their

role in his personal struggle with cancer. The government has not been specific as to what "pure

speech" it would consider violative of the injunction. To the extent that there are outstanding

issues about the terms of the Injunction, or any possible action for modification or clarification,

Mr. Kleinberg continues to represent the F.D.A. in the underlying civil action. This presents a

conflict of interest, as he would have access to information in negotiations in the civil case that

he should not have in the criminal case.

Moreover, Mr. Kleinberg possesses leverage as the criminal prosecutor that could be

overbearing in any civil negotiations. See Terrv, 17 F.3d at 578 (Attorney General was not

involved in the type of simultaneous activity in both the civil and criminal cases that would give

him an unfair advantage in either proceeding.) Unlike the injunction in Terry, which covered

precise conduct during a five day period that had long passed at tbe time the criminal contempt

case was filed, the injunction against Mr. Vale has no time limits and covers a wide array of

activity. The Terry court found "quite significant" to its holding the fact that the civil case was

essentially completed (as it had to be given that it enjoined conduct during a limited time period).

That factor is not present in this case.

Finally, the Permanent Injunction in the civil case requires the defendant to pay attorney's

fees, expert witness fees, investigational expenses, travel expenses incurred by witnesses, and

other costs should "plaintiff. . . prevail in, a civil or criminal contempt action arising out of a

violation of the terms of this Decree." See Consent Decree of Permanent Injunction, 99 CV

7683, filed 11/17/00.

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We do not go so far as to request disqualification of the United States Attorney's Office

altogether. We believe, however, that a disinterested attorney from the Criminal Division of the

U.S. Attorney's Office who has not been involved in the underlying civil litigation ought to be

assigned to the case. This is an important and reasonable limitation on the defendant's request,

and our reading of Young, which would ensure conflict-free lawyering while not limiting the

Executi ve Branch's authority.

In summary, where both the judge and the prosecutor were intimately involved in the

underlying civil litigation, notions of fundamental fairness and the need to avoid even the

appearance of impropriety compel the requested disqualifications. While Young did not

specifically discuss the standards for disqualification of the judge in these circumstances, it

notably indicated an even greater degree of sensitivity to judicial conflicts than for prosecutoIial

conflicts. See Young, 481 U.S. at 810 (suggesting that unmoved that the "standards of neutrality

for prosecutors are not necessarily as stringent as those applicable to judicial. . officers."). Id. at

810.

MOTION FOR BILL OF PARTICULARS

The government has refused to provide information the defendant needs to prevent

surprise and prepare for trial. The precise questions put to the government are contained in the

November 19, 2002 discovery letter (attached to Affirmation of Jan A. Rostal as Exhibit A).

A bill of pm1iculars functions to provide a defendant with such details of the charge

against him that are "necessary to the preparation of his defense and to avoid prejudicial surprise

at the trial." See 1 C. Wright, Federal Practice and Procedure: Criminal 2d §129 at 434-35 (2d

ed. 1982). As the Second Circuit has explained: "A bill is appropriate to permit a defendant to

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identify with sufficient particularity the nature of the charge pending against him, thereby

enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double

jeopardy should he be prosecuted a second time for the same offense." U.S. v. Davidoff, 845

F.2d 1151,1154 (2d Cir. 1988). Here such a bill is appropriate.

The OSC's lack of detail leaves Mr. Vale unable to determine the charges against him as

required by due process and significantly impairs his ability to defend against them. It also

limits his ability to plead his acquittal or conviction in bar of any further prosecution of the same

offense. Accordingly, the motion for a bill of particulars should be granted.

In United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987), the Second Circuit

explained:

Rule 7(f) of the Federal Rules of Criminal Procedure permits adefendant to seek a bill of particulars in order to identify withsufficient particularity the nature of the charge pending againsthim, thereby enabling the defendant to prepare for trial, to preventsurprise, and to interpose a plea of double jeopardy should he beprosecuted a second time for the same offense.

Id. at 574 (citations omitted). Each concern applies here.

Mr. Vale has asked the government for 9 separate particulars. These requests fall into

three general categories: (1) those seeking to determine the dates of the contemptuous acts, the

particular product sold (and its relation to the scientific analyses), and the nature of the

transactions (Bill of Particulars Request, l(a)-(c),(e),(f), attached to Rostal Affirmation as

Exhibit A); and (2) those seeking to establish the details of how Mr. Vale purportedly "caused"

the introduction of products subject to the injunction (Bill of Particulars Request, l(d), attached

to Rostal Affirmation as Exhibit A); and (3) those seeking to determine the means by which the

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government claims Mr. Vale "promoted" products in violation of the injunction, (Bill of

Particulars Request, 2(a)-(c), attached to Rostal Affirmation as Exhibit A).

Dates/Products/Transactions Request

During the nearly two year time period covered by the OSC (April, 2000 and January,

2002), Mr. Vale was engaged in the business of selling nutritional supplements. The government

has turned over to the defense thousands of pages of documents it seized. Most of these relate to

this and other businesses, and it is clear that the government does not claim that all of them relate

to the contemptuous acts covered by the Osc. The volume of material leaves it to the defense to

sort through which documents relate to business transactions that the OSC addresses.

We must be apprised of the specific transactions or communications that make out a

crime. The "who, what, when, and where" of how Mr. Vale violated the injunction must be

specified, for proof of the offense requires the government to show that Mr. Vale knew or had

reason to know that the specific act fell within the purview of the injunction. This is not a charge

involving a conspiracy or a "scheme to defraud." On the contrary, it alleges discrete violations of

the Injunctions without pinpointing them by time, place, or person.

The Court is experienced in trials of drug cases prosecuted by the Criminal Division of

the United States Attorney's Office for the Eastern District where the government routinely sets

forth when and where drug deals took place. Presumably this is because it would be unfair to

expect the defense to wait until trial to find out what dates these details out. Counsel must be

able to discuss with her client, prior to trial, the specific transactions alleged to be illegal, and to

explore any defenses that may be available to him with respect to each transaction. Moreover,

the government has provided scientific analyses of products without any information about when

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and where these products were recovered, sold, or obtained. If the government fails to specify

the particular contemptuous transactions or communications, we must be prepared to defend any

single transaction or communication over a nearly two year period in both his business and

others-an impossible task. Furthermore, without more specification, we have no future ability to

bar future prosecutions that could arise out of that time period.

Requests Relating To "Causing" the Violations

With regard to Counts One and Two of the OSC, the government will have to prove that

Mr. Vale was either introducing or "causing to introduce" certain products into interstate

commerce in violation of the FDCA. The nature of how Mr. Vale "caused" the products to

be introduced is not detailed in the OSC. Does the government contend that he personally took

orders, or that he someone else took the order and he facilitated it? And if they are referring to

someone else, we should know by whom and when the order was taken.

Again, without some direction as to "who, what, where and when" this "causing" took

place, counsel cannot properly discuss the matter with her client, nor can she prepare a defense.

Requests Relating to "Promotion"

In Counts Three and Four, the government will have to prove that Mr. Vale "promoted"

products in willful violation of the preliminary and permanent injunctions. Again, the way in

which the government claims Mr. Vale effected this "promotion" is not set forth in the OSc.

Without some specification of what precisely the government will claim Mr. Vale said or did that

violates the injunctions, counsel cannot properly discuss the matter with her client, nor can she

prepare a defense. Must we be prepared to justify every conversation or writing he has made

over that time period?

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It must be stressed that this is not a situation in which the defendant is seeking revelation

of "the precise manner in which the crime charged in the indictment is alleged to have been

committed." United States v. Biaggi, 676 F. Supp. 790, 809 (S.D.N.Y. 1987), citing United

States v. Andrews, 381 F.2d 377,377-78 (2d Cir. 1967), cert. denied, 390 US. 960 (1968);

United States v. Carroll, 510 F.2d 507,509 (2d Cir. 1975), cert. denied, 426 US. 923 (1976).

Rather, Mr. Vale is seeking the most rudimentary sort of information concerning the charges

against him: which of his acts are alleged to have been criminal, and when and with whom they

are alleged to have been committed. Cf. United States v. Atkins, 661 F. Supp. 491 (S.D.N.Y.

1987) ("The defendants know from the indictment the nature of the deception, and also know

when they gave (or failed to give) information to its auditors," and therefore a bill of particulars

was not necessary.) with US. v. Fischbach and Moore, Inc. 576 F.Supp 1384, 1389 (D.C.Pa.

1983) ("We do not believe that it will unreasonably limit the government's case to require

identification of which contracts are alleged to be the subject of the conspiracy to allocate bids

among defendants, having bid prices fixed, or for which noncompetitive, collusive and rigged

bids were submitted, and/or on which defendants and co-conspirators refrained from bidding

pursuant to the alleged conspiracy.). Such information cannot be gleaned from this OSc.

The Second Circuit reversed convictions based upon a trial court's denial of the

defendant's bill of particulars in a case where the defendants were indicted for allegedly engaging

in a scheme to defraud the Federal Emergency Management Administration and the New York

Property Insurance Underwriting Association through the submission of false and inflated

insurance claims for, inter alia, burglary losses. United States v. Bortnovsky, 820 F.2d 572 (2d

Cir. 1987) The trial court should have required the government to identify "which of appellants'

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insurance claims for burglary losses were fraudulent and which of the many invoices submitted

to substantiate these claims were falsified." Id. at 573-574. As a result of the court's failure to do

so, the defendants were forced, at trial, to explain the circumstances of eight actual robberies and

to confront numerous documents unrelated to the charges, thus effectively and impermissibly

shifting the burden of proof from the Government to the defendant. Id. at 574-575.

Absent clear and specific identification of his supposed wrongful acts, Mr. Vale could be

placed in the untenable position of having to demonstrate the legitimacy of every transaction he

made, every conversation he had, and every written document he was associated with, during the

period covered by the OSC. Additionally, he could have to explain the circumstances of his

relationships with other people with whom the government dealt in an undercover capacity, to

prove that they were not the bases of showing violations of the injunctions. This is burden-

shifting and is impermissible.

In United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988), the Second Circuit again

reversed convictions based on the trial court's denial of a motion for a bill of particulars. In that

case, the defendants requested a bill of particulars concerning unspecified RICO violations

alleged in the indictment. Id. at 1153. The district court denied the motion, suggesting that the

bill of particulars would reveal the Government's proof and that some of the information

requested was already contained in documents provided to the defendants. Id. At trial, the

Government was permitted to introduce evidence concerning certain alleged extortions of three

companies which were not identified in the indictment. Id. The Second Circuit reversed, stating

that "it is simply unrealistic to think that a defendant preparing to meet charges of extorting funds

from one company had a fair opportunity to defend against allegations of extortions against

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unrelated companies." Id. at 1154. Furthermore, the Circuit concluded that the Government was

not excused from its obligation to inform the defendants of the charges against them merely

because it turned over some 6,000 pages of Jencks material. The volume of material was so great

and the references in the materials were too oblique to provide notice of one of the extortions;

further, the materials completely failed to mention the other two alleged extortion victims

altogether. Thus, the Court concluded that a bill of particulars should have been granted, and

reversed the convictions.

Here too, the government cannot hide behind the reams of documents provided in

discovery to cure the OSC's lack of specificity:

While the practice of voluntary discovery is to be encouraged, andin any event is required by Local Rule 18(b), it may not substitutefor straightforward identification in a bill of essentials matters thatthe defendant needs to avoid surprise at trial, to interpose a plea ofdouble jeopardy and to know "with sufficient particularity thenature of the charges against him." United States v. Bortnovsky,820 F.2d at 574.

United States v. DeGroote, 122 F.R.D. 131, 143 (W.D.N.Y. 1988).

Mr. Vale has a right to know the precise nature of the charges against him-at a bare

minimum he should be ready to defend against particular transactions that the government will

contend at trial violated the injunction. Accordingly, the Court should grant the motion and

direct the government to file a bill of particulars.

MOTION FOR PRODUCTION OF WITNESS STATEMENTS

The Defendant has moved under Rule 16(a)(1)(A) for all statements for production of all

statements of the defendant in both his individual capacity and as a corporation.

Under Rule 16(a)(1)(A), "where the defendant is a corporation, the government must

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disclose to the defendant any of the foregoing statements made by a person who the government

contends (1) was, at the time of making the statement, so situated as a director, officer, employee,

or agent as to have been able legally to bind the defendant in respect to the subject of the

statement; or (2) was, at the time of the offense, personally involved in the alleged conduct

constituting the offense and so situated as a director, officer, employee, or agent as to have been

able legally to bind the defendant in respect to that alleged conduct in which the person was

involved."

This discovery request includes all statements of persons whom the government will

claim at trial are, or were at the time the statements were made, employees of Mr. Vale or

Christian Brother's Inc. In the alternative, the Defendant has moved for all Brady material, and

we believe that this request specifically encompasses all statements by current or former

employees of Jason Vale or Christian Brothers who stated that Mr. Vale was not personally

involved, or was unaware, of the acts alleged in the OSC. U.S. v. Bestway Disposal Inc., 681

FSupp. 1027 (W.D.N.Y 1988).

The defendant has received no Rule 16 discovery containing statements of employees or

agents of the corporation regarding Mr. Vale's or the corporation's involvement in any of the

sales or promotion of amygdalin products. Nevertheless, the Declaration Attached to the OSC

states that the FDA agent "learned from a cooperating witness. . ." certain information that

implicated Mr. V ale in the crime. Declaration in Support of OSC, 17. This information from

witnesses who are employees or agents of Mr. Vale, must fall at the very least into Rule

16(a)(1)(A)(2). The government takes the position that we are not entitled to receive the

requested discovery because it was not requested by "Christian Bros. attorney." For all intents

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and purposes, the undersigned counsel has been assigned to represent the defendant in this action

and is entitled to the requested discovery. We ask the Court to order the disclosure of all agent or

employee statements that fall within the meaning of this rule.

MOTION TO SUPPRESS STATEMENTS MADE IN CIVIL DEPOSITION

During the pendency of the civil case against him brought by the FDA, Mr. Vale was

deposed pursuant to the Federal Rules of Civil Procedure. Had he refused to attend the

deposition he could have been held in contempt. F.R.C.P 45(e). Had he asserted his rights under

the Fifth Amendment, adverse inferences could have been drawn against him. Baxter v.

Palmigiano, 425 U.S. 308 (1976) (pointing to "the prevailing rule that the Fifth Amendment does

not forbid adverse inferences against parties to civil actions when they refuse to testify in

response to probative evidence offered against them"); see also SEC v. Muella, 578 F.Supp. 425

(S.D.N.Y. 1984) (the court may consider defendants' assertion of Fifth Amendment privilege as

a factor in determining whether the SEC is entitled to preliminary injunctive relief against future

violations of the securities laws). In some civil cases, summary judgment can be a consequence

of a defendant's assertion of the Fifth Amendment. US. v. Certain Real Property, 55 F.3d 78,83

(2d Cir. 1995). In other words, a "party who asserts the privilege against self-incrimination must

bear the consequence of lack of evidence," United States v. Taylor, 975 F.2d 402,404 (7th

Cir.1992), and the claim of pri vi lege will not prevent an adverse finding or even summary

1----- judgment if the litigant does not present sufficient evidence to satisfy the usual evidentiary

burdens in the litigation. US. v. Certain Real Property, 55 F.3d at 83.

In Garritv v. New Jersey, 385 US. 493 (1967), the Supreme Court held that the

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Fourteenth Amendment's protection against coerced statements prevented the use in later

criminal proceedings of answers the defendant police officers gave to official inquiries made in

earlier civil proceeding Id. at 500. Before being questioned in the civil investigation, the

policemen were advised of the their rights to remain silent, but that if they refused to answer they

could lose their jobs. Id. at 494. In reaching its conclusion, the Court reasoned that the Fifth

Amendment right could not be so burdened:

There are rights of constitutional stature whose exercise a Statemay not condition by the exaction of a price. Engaging ininterstate commerce is one. Western Union Tel. Co. v. State ofKnasas, 216 U.S. 1,30 S.Ct. 190,54 L.Ed 355. . . . We now holdthat the protection of the individual under the FourteenthAmendment against coerced statements prohibits use in subsequentcriminal proceedings of statements obtained under threat ofremoval from office, and that it extends to all, whether they arepolicemen or other members of our body politic.

Id. at 500.

Mr. Vale's assertion of his Fifth Amendment privilege in the deposition was

unconstitutionally burdened by the threat of losing his livelihood and his right to engage in

interstate commerce. He had to chose between his right to remain silent and inviting negative

consequences in the civil case such as adverse inferences and possible summary judgment.

The case of U.S. v. Kordel, 397 U.S. 1 (1970), is distinguishable. There, a corporation

and two of its officers were charged with violations of the FDCA, while the government brought

a nearly contemporaneous civil condemnation proceeding. Id. at 764. The FDA submitted

interrogatories to the defendant in conjunction with the civil seizure proceedings, but gave the

defendants notice of the potential criminal procedures. Id. at 3-6. Despite the risk of criminal

prosecution the defendants answered the interrogatories, and the Supreme Court found that they

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had waived their Fifth Amendment rights.

Unlike the defendants in Kordel, the government gave Mr. Vale no notice of his exposure

to criminal charges and the fact that his statement could be used against him. While we concede

that he was not in custody and that warnings were not required under Miranda, the Garrity

reasoning is based upon the Due Process clause. Here, as in Garrity, Mr. Vale's Fifth

Amendment right was impermissibly burdened by the adverse consequences of asserting it-he

could lose his business and his right to engage in interstate commerce. Unlike the defendants in

Kordel, however, the government was not careful to ensure that he understood the even more dire

consequences of waiving his right to remain silent.

The deposition testimony should therefore be suppressed in this criminal proceeding.

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