Do reputational or financial issues warrant this?
Does the unindicted co-conspirator's public employment (or other status) change the analysis? And should it? What about the Equal Protection Clause? Aren't we all equally subject to the law, and equally protected?
And what about the Sixth Amendment's Confrontation Clause? (More on that later.)
These and other issues are going to be involved in. or affected by the Third Circuit Court of Appeals' consideration Monday of a motion by a "John Doe" to keep his name secret.
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Some other facts: first, John Doe is an unindicted co-conspirator as that term is used by the federal government. It means that prosecutors have labelled him as such.
Understandably, John Doe is upset over the characterization. And unless John Doe is indicted, and takes the case to a jury, John Doe will never get the chance to confront the government, its witnesses and its evidence to determine whether he has in fact committed a federal crime.
This means that John Doe could be impugned by the characterization AND have no way to "confront his accusers." John Doe is actually deprived of his Constitutional right, because he is not an "accused." He gets the right to confront, and clear his name, only if he is "accused," that is, charged with a crime.
For that, let's turn to the Sixth Amendment of the U.S. Constitution, which provides:
" . . . in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."To be simple, this means that you need a prosecution to trigger the right. No prosecution, no right. So anything short of being charged, and it sort of means the government gets to go open season on your reputation. Particularly since John Doe is not specifically identified. The rationale may be that any government action short of charging someone is not sufficiently injurious enough to implicate Constitutional rights. (A fascinating sidebar that should be explored more by the federal appellate and even the Supreme Court.)
Except that John Doe is listed in court documents in the ongoing criminal cases of two other people as being a potential witness. This means that if those other two cases go to trial, the public may find out who John Doe is -- and John Doe could be a witness and testify and be subject to cross examination. It also means the testimony might be John Doe's way to "exonerate" himself, but it might also be a danger by showing things he might wish had never occurred or he had never said. He might never be charged but the revelations might be very damaging to his reputation and career.
One can also see how the government can use these considerations to bargain for the cooperation of people whom it could charge, but would agree not to, in exchange for witness testimony.
There are Justice Department guidelines on the naming of unindicted co-conspirators. See the following, straight from the United States Attorneys' Manual (with my emphasis in bold text):
In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments. The practice of naming individuals as unindicted co-conspirators in an indictment charging a criminal conspiracy has been severely criticized in United States v. Briggs, 514 F.2d 794 (5th Cir. 1975).
Ordinarily, there is no need to name a person as an unindicted co-conspirator in an indictment in order to fulfill any legitimate prosecutorial interest or duty. For purposes of indictment itself, it is sufficient, for example, to allege that the defendant conspired with "another person or persons known." In any indictment where an allegation that the defendant conspired with "another person or persons known" is insufficient, some other generic reference should be used, such as "Employee 1" or "Company 2". The use of non-generic descriptors, like a person's actual initials, is usually an unnecessarily-specific description and should not be used.
If identification of the person is required, it can be supplied, upon request, in a bill of particulars. See USAM 9-27.760. With respect to the trial, the person's identity and status as a co-conspirator can be established, for evidentiary purposes, through the introduction of proof sufficient to invoke the co-conspirator hearsay exception without subjecting the person to the burden of a formal accusation by a grand jury.
In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments.
Perhaps the solution is to have the Department of Justice further revise its guidelines governing how its prosecutors refer to unindicted co-conspirators. One way is to standardize how they are identified so that their identities cannot be ascertained, not even by investigative lawyers like the author.
The above guideline is overtly critical of certain practices. (The same United States Attorney's Office in New Jersey handling the Bridgegate investigation and related criminal cases, when under the auspices of possible current co-conspirator Governor Chris Christie as U.S. Attorney, used to identify co-conspirators with initials and residence hometowns, for example.) Clearly, there are ways to identify the players. For instance, if an indictment referred to a certain white former basketball player with curly blonde hair, you'd be pretty certain we're talking about Larry Bird.
Sometimes the opaque "CC-1" is used (CC for co-conspirator). But other times an acronym or phrase is used, often in conjunction with additional narrative detail as to the person's job, title, age or residence (any of which might serve absolutely no purpose for the purposes of a charging document relating to someone else) and it allows for good educated guesses. The problem is that the descriptions can and do allow for the identification of uncharged persons, who never get a chance to clear their names. This is not only unfair to the unindicted co-conspirator, who may never be charged and thus may suffer permanent and irreparable harm (basically, this is the "John Doe" situation), but his very safety may be jeopardized.
And it is quite possible that this reputational damage is done, quite on purpose, whether to pressure the uncharged and unindicted into cooperation (an exchange of testimony for a promise not to reveal or damage the person's reputation). A cynic could argue that this is exactly the type of psychological coercion designed to induce an investigative target to "agree to cooperate," essentially to safeguard his own safety. But then again, anyone who testifies -- and in open court, it's all public -- loses any anonymity or secrecy hopes anyway.
This was the case years ago in a high profile public corruption case where the U.S. Attorney's Office wrote up a charging indictment that referred to an unindicted co-conspirator as "State Official 1." Everyone quickly figured out who the Governor was. And that Governor -- now out of public life -- was never charged.
And never able to exonerate himself either. Indeed, the "cloud" still hovers over that ex-Governor (whom by now you've probably been able to identify).
Let's remember these important issues and the need for reasoned balancing of the considerations at stake here. Perhaps this is a judgment to eventually be made by Congress.
A good news source to follow this emerging saga is the Record of Hackensack, which will be updating this story over the next few days. A link to their current story is here: