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U.S. v. JENSEN

March 25, 2002

UNITED STATES OF AMERICA,
V.
PATRICK JENSEN, DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

In this case, the Court is dealing with issues which may be more comfortably handled in a state court in Wyoming.

This case involves charges against the defendant Patrick Jensen ("Jensen" or the "defendant") for making false statements to an officer in the United States Fish and Wildlife Service ("USFWS") in violation of 18 U.S.C. § 1001(a)(2). Presently before the Court is a motion by the defendant to (1) inspect the grand jury minutes; (2) dismiss the indictment; (3) suppress statements made by the defendant; (4) require a bill of particulars; (5) produce all documents and tangible objects; (6) produce all Brady material; and (7) produce Jencks Act material.

I. BACKGROUND

The Federal Government owns the Wertheim National Wildlife Refuge in Shirley, New York (the "Wertheim Refuge" or the "Refuge"). USFWS, a division of the United States Department of the Interior, is responsible for the preservation and protection of wildlife in the Wertheim Refuge. In particular, USFWS is responsible for providing law enforcement to protect wildlife from poaching activities and ensure the safety of visitors at the Refuge.

Marto then asked the defendant whether he was involved in the gunshots. The defendant responded that he had heard the gunshots but had no involvement with them. The defendant also stated that he entered the Refuge without permission at the northern end of the fire trail and was merely walking through the Refuge to observe wildlife. Next, Marto asked the defendant whether he was in possession of a firearm. The defendant responded that he was not in possession of a firearm and he did not own a firearm of any kind. Marto then allowed the defendant to walk north on the fire trail in the direction of the exit of the Refuge.

Shortly thereafter, Marto discovered a large antlered 8-point white-tailed deer with a fresh gunshot wound to the back of its neck. Immediately, Marto proceeded in the direction of the defendant attempting to find him. At the exit of the Refuge, Marto saw the defendant and approached him.

Now joined by police officers from the Suffolk County Park, Marto asked the defendant about his involvement or knowledge concerning the gunshots and the wounded deer. The defendant again denied having any knowledge of the gunshots and denied any involvement in the wounding of the deer. The defendant also stated that he saw several dead deer in the vicinity where Marto discovered the wounded deer.

Apparently, after this questioning, Marto allowed the defendant to leave the area. Thereafter, unidentified USFWS officers searched the field and discovered three headless white-tailed deer carcasses and one freshly killed large antlered 15-point white-tailed deer carcass.

On November 21, 2000, unidentified officers of the Refuge, unidentified personnel from the New York State Department of Environmental Conservation ("DEC") and DEC Forest Ranger Mark St. Claire ("St. Claire") discovered a black soft-sided case containing a 30-06 Remington rifle model 700 DBL, bearing serial number B6720779 (the "Remington rifle") leaning against a tree which was located about three feet outside the boundary of the Refuge. Later that day, Marto and St. Claire removed a discharged bullet from the 15-point white-tailed deer carcass. Marto and St. Claire also recovered spent shell casings in and around the vicinity of where the Remington rifle was found.

Subsequently, the bullet and shell casings were sent to the National Fish and Wildlife Forensics Laboratory (the "NFWFL") for ballistic tests. After its investigation, the NFWFL determined conclusively that the shell casings were from bullets discharged from the Remington rifle and that the discharged bullet in the deer had the same rifling characteristics and could have been fired though the barrel of the Remington rifle.

On December 4, 2000, the Bureau of Alcohol, Tobacco and Firearms ("ATF") conducted a trace on the serial number of the Remington rifle. The trace revealed that one John DiPalermo ("DiPalermo") purchased the Remington rifle from Edleman's in Farmingdale, New York on October 11, 1986. On January 4, 2001, Special Agent Carmine Sabia of the USFWS ("Sabia") spoke with DiPalermo concerning the Remington rifle. DiPalermo told Sabia that he sold the rifle about one year ago. DiPalermo also produced the bill of sale for the rifle which was signed by the defendant as the purchaser.

II. DISCUSSION

A. As to the Inspection of the Grand Jury Minutes

Rule 6 of the Federal Rules of Criminal Procedure provides that a district court may permit the disclosure of matters before the grand jury "upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. . . ." Fed.R.Crim.P. 6(e)(3)(C)(ii). "Grand jury proceedings carry a `presumption of regularity.'" United States v. Torres, 901 F.2d 205, 232-33 (2d Cir. 1990) (citing Hamling v. United States, 418 U.S. 87, 139 n. 23, 94 S.Ct. 2887, 2918 n. 23, 41 L.Ed.2d 590 (1974) (internal quotations and citations omitted).

However, review of the grand jury minutes is "rarely permitted without specific factual allegations of government misconduct." Torres, 901 F.2d at 233 (citation omitted). Further, "`as a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.'" Id. (quoting Bank of ...


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