Flaherty Decision on Motion for Discovery

Female IRA fighter, 1970sTim Flaherty has his case scheduled for tomorrow. It had been continued until the judge made a decision on his motion for discovery. That decision was made at the last minute, today. For those interested I have copied it and posted it below.  As expected and as usual the judge a former federal prosecutor in the same office that is prosecuting Flaherty went along with that office’s position.

I should note that the issue is whether there was a real civil rights action in existence which Flaherty was interfering with. I’ve pointed out before that every case that the Wyshak unit receives they mark it as a civil rights case whether they ever intent to pursue a civil rights case or not. That gives them the pretext, as was done here, for doing other types of investigations and hoping that the person they are after will either lie to an FBI agent or tell another not to do something that can be said to be an interference with their investigation.

Anyway, there has been no civil rights action that I know of nor is there likely to be one. Flaherty was caught in their snare when they set up phone calls with him from the alleged “victim” who was already working with the FBI so in reality anything Flaherty said to him about not contacting the FBI was meaningless since he was already in contact with them. But Flaherty making those statements fell victim to the federal sting.

The decision follows”





Pending before the Court are three motions: (1) Defendant’s Motion and Incorporated Memorandum of Law Seeking an Order Requiring the Government to Produce Department of Justice and United States Attorney’s Office Records Demonstrating the Unlikelihood of Any Federal Investigation and/or Prosecution for Violations of 18 U.S.C. §249; (2) Government’s Motion to Strike the Defendant’s Untimely Motion for Early Discovery; and (3) Defendant’s Supplemental Motion for Discovery and Incorporated Memorandum of Law, which essentially incorporates and expounds upon the defendant’s initial motion. (Dkt. Nos. 17, 19 and 28). For the reasons discussed below, the defendant’s discovery motions are DENIED and the government’s motion to strike is DENIED as moot.


In 2014, the defendant, an attorney, represented a client facing criminal charges in the Cambridge District Court. The client, Ralph Feinberg (Feinberg), was involved in a traffic incident with a person of Middle Eastern descent named Reda Bichri (Bichri), and in the course of the incident allegedly assaulted and battered Bichri and uttered racial epithets at him. According to the indictment, the defendant thereafter allegedly attempted on numerous occasions to dissuade Bichri from communicating with officials involved in investigating the incident. Broadly speaking, there were four such episodes. First, on or about December 15 and 17, 2014, the defendant allegedly offered Bichri $2,500 if Bichri would agree not to cooperate with the Middlesex District Attorney’s Office. Second, on or about December 24, 2014, the defendant met Bichri and gave him the money and instructed him to ignore any contact he might receive “from the court.” Third, on or about May 6, 2015, the defendant instructed Bichri during a telephone conversation to tell the D.A.’s office that he had no interest in testifying against Feinberg, that he should “duck” any subpoena, and that he should “blow her off” and not return a call Bichri said he had received from the civil rights section of the U.S. Attorney’s Office. Lastly, on or about May 21, 2015, the defendant told Bichri during another telephone conversation that he should not return a call he had received from the FBI regarding the incident with Feinberg. See Indictment, ¶¶ 1- 12.

The government subsequently obtained an indictment charging the defendant with one count of witness tampering, in violation of 18 U.S.C. § 1512(b)(3). Section 1512(b)(3) provides in pertinent part that “[w]hoever…corruptly persuades another person, or attempts to do so,…with intent to…hinder, delay or prevent the communication to a law enforcement officer…of information relating to the commission or possible commission of a Federal offense…shall be [guilty].” See 18 U.S.C. § 1512(b)(3). The indictment alleges that the criminal conduct spanned from on or about December 15, 2014 to on or about May 21, 2015, so it presumably encompasses all of the incidents summarized above, and further alleges that the possible “federal offense” at issue is a civil rights related hate crime under 18 U.S.C. § 249, i.e., the Feinberg-Bichri incident.


The defendant’s discovery motions principally revolve around section 1512(b)(3)’s requirement that the information at issue relate “to the commission or possible commission of a Federal offense.” The defendant contends, in essence, that there was never a “federal offense” to be tampered with, and thus no violation of section 1512(b)(3). The defendant contends that, although the government has invoked the Feinberg-Bichri incident as the basis for the possible federal offense, it was in fact never interested in investigating or prosecuting that matter and has only used it as a pretext to target the defendant and bring his conduct within the purview of the witness tampering statute. This matters, the defendant argues, because the Supreme Court held in Fowler v. United States, 131 S.Ct. 2045 (2011) that the government must show a reasonable likelihood that, but for the tampering, the relevant communication would have been conveyed to a federal official. The defendant argues that if it could be shown that there was in fact no federal civil rights investigation, the government would necessarily be unable to satisfy this element, and the indictment would be subject to dismissal. The defendant does acknowledge the government’s representations that it received information regarding both a civil rights and witness tampering case as early as December 23, 2014, and that it officially opened a federal investigation on December 24, 2014, but contends that these assertions are not credible.

Against this backdrop, the defendant seeks discovery in two areas. First, he seeks so called “Fowler” material from several entities, including the U.S. Attorney’s Office, the FBI, the Massachusetts State Police, the Middlesex District Attorney’s Office, and the Cambridge and Malden police departments, in order to explore whether and when a federal civil rights investigation of Feinberg ever existed. Among other requests, the defendant seeks discovery tending to show that the government used the Feinberg-Bichri incident as a pretext to bring federal charges against the defendant, information regarding the existence (or not) of a civil rights investigation of Feinberg, data regarding the number of federal hate crimes the U.S. Attorney’s Office actually investigated from 2012-2015, data regarding the number of state prosecutions during that time period that involved hate crime allegations but were not prosecuted federally, data regarding the number and fate of any hate crime matters the Civil Rights Division of the U.S. Department of Justice reviewed or investigated during that same time period, and guidelines used by U.S. Department of Justice, the U.S. Attorney’s Office or the FBI with respect to the initiation and investigation of hate crimes. Second, the defendant seeks “Silver Platter” discovery related to an alleged warrantless interception of the defendant’s communications, to explore whether there is a basis to file a motion to suppress evidence.


Fowler Materials

Section 1512(b)(3) makes it a crime to attempt to corruptly persuade another person with the intent to prevent a communication to a law enforcement officer of information relating to the possible commission of a federal offense. See 18 U.S.C. § 1512(b)(3) (“[w]hoever knowingly…corruptly persuades another person, or attempts to do so,… with intent to…prevent the communication to a law enforcement officer… of information relating to the commission or possible commission of a Federal offense…”). The parties disagree as to what is required or sufficient to show that a particular communication relates to the possible commission of a federal offense, and thus what may be relevant, material or exculpatory for discovery purposes. Underlying that disagreement is the Supreme Court’s decision in Fowler.

In Fowler, Fowler and several other men were in a cemetery preparing to rob a bank. When a police officer unexpectedly came upon the men, Fowler subsequently shot and killed the officer before the officer could convey any information about the group to anyone else. Fowler was subsequently charged and convicted of violating a similar federal witness tampering statute, 18 U.S.C. § 1512(a)(1), which made it a crime to kill another person with the “intent to…prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission or a Federal offense.” Fowler appealed and argued that the evidence was insufficient to show that he killed the police officer to prevent him from communicating with a federal officer. The Supreme Court vacated Fowler’s conviction and held that where a defendant acts with an intent to prevent a communication about a possible commission of a federal offense, but to law enforcement officers in general rather than to some specific law enforcement officer, the government must for purposes of the intent element show a “reasonable likelihood” that that the communication would have been made to a federal law enforcement officer had it in fact been made. This means that the likelihood of communication to a federal officer must be more than remote, outlandish, or simply hypothetical. Fowler, 131 S.Ct. at 2048-2052.

The defendant argues that after Fowler, it is clear that the government must prove in the context of this case that there was a real civil rights investigation rather than a hypothetical one, that is, that there was a reasonable likelihood that Bichri would have provided information to federal officials regarding the Feinberg-Bichri civil rights incident. The government by contrast argues that Fowler does not apply to this case because the Fowler Court was addressing the wholly separate issue of how to prove a defendant had an intent to prevent a communication to a federal officer where the defendant did not think specifically about any particular communication or its recipient, and the communication was never made. See id. at 2050. The government argues that because Bichri was already speaking with a federal law enforcement officer at the time the defendant paid him money to agree not to cooperate, Fowler is not applicable (and the discovery the defendant seeks is thus not warranted).

In the Court’s view, Fowler most likely does not control the present issue, because the indictment alleges that the present defendant here, unlike the defendant in Fowler, acted with an intent to prevent a witness from conveying information about the Bichri-Feinberg incident to law enforcement officials. As such, this is not the sort of situation presented in Fowler where it was necessary to speculate as to whether and to whom a communication might be made. But, even assuming Fowler does apply, the indictment coupled with the government’s representations, including those made through the Declaration of Assistant U.S. Attorney Fred M. Wyshak, Jr., alleges that the government had commenced a federal civil rights investigation regarding the Feinberg-Bichri incident as of December 24, 2014. At a minimum then, the defendant’s alleged conduct from December 24, 2014 onward would arguably still come within the scope of section 1512(b)(3) because the government would have a good faith basis to assert that there was a reasonable likelihood that Bichri’s communications would be conveyed to someone who turned out to be a federal law enforcement officer.

To be sure, the defendant devotes considerable time and space to arguing that the notion of a true, active federal civil rights investigation was a pretext and that, indeed, the discovery he seeks is in part to prove that thesis. The response to this is twofold. First, the Court credits the defendant’s good faith in advancing this argument but is not inclined at this juncture to question the veracity of the government’s affidavit as well as its stated acknowledgement of its ongoing Brady obligations in order to justify what appears to be a burdensome request. See United States v. Roberts, No. 01 CR 410 RWS, 2001 WL 1602123, at *16 (S.D.N.Y. Dec. 14, 2001) (“… a defendant may be denied a request for a pre-trial discovery order made pursuant to Brady where the [g]overnment has made a good-faith representation to the court and defense counsel that it recognizes and has complied with its disclosure obligations under Brady.”); United States v. Jacobs, 650 F. Supp. 2d 160, 166-167 (D. Conn. 2009) (where the government represented to the court that it had fully and completely complied with its obligations under Brady, the court held that “[p]lacing reliance upon that representation, I see no reason to order the government to produce broad, speculative categories of information which may not exist, or which the government may have withheld upon a determination that such information is not ‘material’ to the fairness of the trial”). Second, the defendant has indicated elsewhere that he intends possibly to assert this issue in the context of a Rule 12(b) motion. In the Court’s view, that is the better vehicle in which to raise and explore this issue. Accordingly, to the extent the defendant seeks discovery beyond that which the government represents in its opposition it has already produced, this portion of the defendant’s motion is denied.

Silver Platter Doctrine

The defendant seeks discovery related to an alleged warrantless interception of the defendant’s communications, as well as information relating to the Massachusetts State Police’s application for a Blood warrant pursuant to Commonwealth v. Blood, 507 N.E. 2d 1029 (Mass. 1987), or a warrant pursuant to M.G.L. c. 272, § 99, authorizing the interception of communications between the defendant and Bichri. The government has responded that it is not aware of any Blood warrant being obtained and the Court accepts this representation. With respect to the defendant’s remaining requests for policies relating to the interception of oral or wire communications of defense attorneys, these guidelines would not on their own create any enforceable rights and thus are not discoverable as Brady or material information. United States v. Craveiro, 907 F.2d 260, 264 (1st Cir. 1990). This portion of the motion is accordingly denied


For the foregoing reasons, the defendant’s initial and supplemental motions for an order requiring the government to produce DOJ and USAO records demonstrating the unlikelihood of a federal prosecution or investigation are DENIED. (Dkt. No. 17 and 28). Further, the government’s motion to strike is DENIED as it is now moot. (Dkt. No. 19).

SO ORDERED :. /s/ Donald L. Cabell  DONALD L. CABELL United States Magistrate Judge

DATED: November 11, 2015

11 thoughts on “Flaherty Decision on Motion for Discovery

  1. Charles Murray, who is one of the few sociologists I can respect as a scientist, has an article: The Regulators’ Yoke, https://www.aei.org/publication/the-regulators-yoke/ which does a better job of telling why this is important than I can.

    “The de facto legislative power delegated to regulatory agencies is only one aspect of their illegitimacy. Citizens who have not been hit with an accusation of a violation may not realize how Orwellian the regulatory state has become. If you run afoul of an agency such as the FCC and want to defend yourself, you don’t go to a regular court. You go to an administrative court run by the agency. You don’t get a jury. The case is decided by an administrative judge who is an employee of the agency.”

    1. Dan:

      She has already done as much time as Kevin Weeks who murdered at least five people. The way things are going she will end up doing more time than Martorano who murdered twenty. She is not known to have committed a violent act in her life. She should be freed and so should Wyshak who should pack up his bags and get on with his life.

      1. To get her out you need much publicity, like the MIT professor who fought to get the Amireaults released.

  2. This is thin gruel, indeed. Right now, Preet Baraha , the u.s. attorney in Manhattan , has placed Sheldon Silver, one of the most powerful men in New York State, on trial. The former leader of the state Assembly is accused of taking millions of dollars in kickbacks. That’s right. If the charges are accurate , an actual big-time crook at the height of his power has been brought to justice. Compare this to our little friend Fred Wyshak, who still apparently dreams of locking up an elderly, out-of-power Billy Bulger. It’s pathetic. We want the prosecution of real criminals not the “assistant motor vehicles clerk who knocked over a mail box in contravention of federal postal laws …Mr. Wyshak thanked the 59 Boston FBI agents who worked on the case .. blah, blah, blah …:

    1. Dan:

      Great comment. The big problem with Wyshak is he thinks he is some state district court prosecutor looking for minor criminal acts. Watching him operate you’d think that the state pretty much went crime free since Whitey left town in January 1995. For twenty years there have been hardly any significant prosecutions from his office – I don’t count O’Brien because from my point of view he did not commit any crime but like with Flaherty he made up a crime to charge him with.

      There have to be guys like Whitey around who are not protected by the FBI – there has to be significant fraudulent acts being carried out — there has to be dirty money floating around among the politicians. As you say he should be prosecuting real criminals.

      One final comment – I do wish you hadn’t mentioned the postal property being damaged – that might give Wyshak ideas for additional prosecutions.

  3. Matt: As I remember from the 60s, Federal Rules give a ‘Civil Rights’ case precedence over all other court business and that’s often why it is cited. You skip over everything else.

    But of course it must be silly now if all the cases are ‘Civil Rights.’

    1. Henry:

      Civil rights meant one thing in the 1960s and a different thing now. We’ve become a nation of aggrieved people with everyone looking to attribute a discriminatory reason to any act one performed by another. A recent example was a person started talking about doing hard work and he was told that was a racist comment because only slaves had ever done hard work and by him saying that he was making light of their work.I was the president of an organization and the treasurer took control of the funds, moved them to another bank, refused to give anyone access to them except himself, so I sought to remove him. He accused me of being a racist. Michael Brown who tried to grab a cops gun after stealing things from a store is a hero; the cop who was defending himself is a racist. It’s only going to get worse especially since “civl rights violation’ is the new way the federals open cases.

  4. Matt, it’s disgusting to see Ortiz, Wyshak & Co. continue with their unseemly methods. What possible hope exists that this “Federal express train” will ever get derailed?

    1. GOK:

      Not much hope — too bad they wouldn’t spend their resources going after the complicated cases — there must be some but I guess it takes too much effort.

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