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UNITED STATES v. SCOZZAFAVA

June 22, 1993

UNITED STATES OF AMERICA,
v.
LOUIS SCOZZAFAVA and ALVIN RHONEY, Defendants. UNITED STATES OF AMERICA, v. LOUIS SCOZZAFAVA, Defendant.


FOSCHIO


The opinion of the court was delivered by: LESLIE G. FOSCHIO

REPORT and RECOMMENDATION

JURISDICTION

 These matters were referred to the undersigned by the Hon. Richard J. Arcara, on April 8, 1992 and June 22, 1993, respectively, for disposition of all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and for report and recommendation pursuant to § 636(b)(1)(B). The matters are presently before the court on the motion of Defendant Scozzafava to suppress statements based on a purported violation of Disciplinary Rule 7-104(a)(1) of the Code of Professional Responsibility by the Assistant United States Attorney.

 BACKGROUND

 On July 31, 1992, this court issued a Memorandum and Order on Defendants' motions for pretrial discovery pursuant to Fed.R.Crim.P. 7(f) and 12(b)(4), granting in part and denying in part Defendants' various requests.

 On August 6, 1992, Defendant Scozzafava filed objections to the July 31st Order, requesting additional disclosure of electronic surveillance materials, and particularization in excess of what the court granted in its decision on Scozzafava's motion for a bill of particulars. The Government also moved for reconsideration of the court's schedule for disclosure of Brady material.

 On October 22, 1992, this court issued a Decision and Order directing the Government to supply to the court, for an in camera review, all of the disputed electronic surveillance material, along with an affidavit describing the materials and their contents. Scozzafava's motion for reconsideration of the court's decision on certain bill of particulars requests was denied, and the Government's motion for reconsideration was also denied, without prejudice.

 On October 28, 1992, Indictment 92-237A, dated September 29, 1992 was unsealed. In the Indictment, Defendant Scozzafava was charged with one count of accepting a bribe, in violation of 18 U.S.C. § 666(a)(1)(B).

 The Government complied with the court's October 22, 1992 order on November 9, 1992. In a Memorandum and Order dated November 25, 1992, this court concluded that the disputed wiretaps were not relevant to the instant Indictment and denied Scozzafava's motion for disclosure of the wiretap information.

 On December 8, 1992, Defendant Scozzafava filed a Notice of Motion in Indictment 92-CR-70A seeking the relief that is the subject of this Report and Recommendation. He also sought severance under Fed.R.Crim.P. 14 and an order in limine. Those matters will be addressed in a separate Decision and Order. The Government filed its response to the motions on January 4, 1993.

 On January 12, 1993, Scozzafava filed a notice of motion in Indictment 92-CR-237A, seeking a bill of particulars, disclosure pursuant to Fed.R.Evid. 404(b), and disclosure of Brady material. The Government filed its response to the motion, along with a bill of particulars on January 25, 1993. In his Reply Memorandum, Scozzafava requested further particularization and a disclosure schedule for Brady material similar to that ordered in Indictment 92-CR-70A. These matters will be addressed in the aforementioned separate Decision and Order.

 A suppression hearing was conducted on January 28, 1993. The testimony of Agent Richard B. Rozicki of the Internal Revenue Service (IRS), Agent David Todtenhagen of the Federal Bureau of Investigation (FBI), and Assistant United States Attorney Kathleen M. Mehltretter was taken. The following exhibits were entered into evidence: Government Exhibits 1-12, 14, 17-19, Defendant's Exhibits A-D, and Court Exhibits 1-3. At the suppression hearing, defense counsel requested that the motion to suppress in 92-CR-70A also be treated as filed under Indictment 92-CR-237A and the request was granted.

 On February 2, 1993, oral argument was heard on the motions for pretrial discovery in 92-CR-237A, and the motions for severance and an order in limine in 92-CR-70A.

 On February 5, 1993, Scozzafava filed a submission regarding additional disclosure of electronic surveillance materials and bill of particulars requests. These matters will also be addressed in the Decision and Order.

 Memoranda of law were filed on the suppression issue by Scozzafava on February 26, 1993, and by the Government on March 12, 1993. Scozzafava filed a Reply Memorandum on March 31, 1993. Oral argument on ...


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