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United States v. Robare

July 25, 2008

UNITED STATES OF AMERICA,
v.
ROGER ROBARE, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Defendant is charged in a four-count Superseding Indictment with possession of a "sawed-off" shotgun and ammunition. Count I alleges that Defendant knowingly possessed a shotgun with a modified overall length of less than 26 inches and a barrel less than 18 inches in violation of 26 U.S.C. §§ 5845(a)(2), 5861(c), and 5871. Count II alleges that Defendant knowingly possessed a firearm with a serial number not registered to him in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Count III alleges that Defendant, having a prior felony conviction, knowingly possessed a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Count IV alleges that Defendant, having a prior felony conviction, knowingly possessed ammunition for a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).*fn1

The Court denied Defendant's previous motion to dismiss the original Indictment pursuant to an April 1, 2008 Memorandum-Decision and Order. See Memorandum-Decision and Order, dated April 1, 2008, at 6. Rejecting Defendant's arguments that the evidence was legally insufficient, the Government presented the grand jury with false or misleading evidence, and the Government failed to properly instruct the grand jury in the law, the Court held that, since the Indictment was facially valid, Defendant did not demonstrate a ground for dismissal. See id. at 5. Additionally, the Court held that Defendant did not demonstrate a "particularized need" for disclosure or in camera review of the grand jury minutes. See id. at 5-6.

Currently before the Court are Defendant's seven pretrial motions seeking various forms of relief. See Dkt. Nos. 37, 43, 47, 51, 53, 57, 59. As a result of Defendant's numerous filings in this case, the Court consolidated these motions and allowed the parties to present oral argument on them in one single proceeding on June 19, 2008. After oral argument, the Court ruled on some of Defendant's requests and reserved decision on others. The following represents the Court's written determination of all of the issues that Defendant raised in his submissions and at oral argument. The Court will address the issues according to the forms of relief requested. Part III.A will discuss Defendant's discovery requests. Part III.B will discuss Defendant's requests to suppress physical evidence. Part III.C will discuss Defendant's motions to dismiss the Indictment.

II. BACKGROUND

On July 19, 2007, at 12:30 p.m., a New York State Police trooper responded to a domestic complaint that April Robare made against her husband, Defendant Roger Robare. According to April Robare, Defendant assaulted her at their home in Peru, New York. She stated that, during the conflict, Defendant brandished a shotgun and threatened to kill himself; however, he did not discharge the firearm.

The next day, on July 20, 2007, the state police located Defendant at his sister Wendy Robare's home in Plattsburgh, New York. Wendy Robare had agreed to let Defendant stay as an overnight guest in a camper located on her property while he cooled down from his dispute with his wife. Wendy Robare was not home when the state police first arrived at her house at 10:00 a.m. However, the officers observed that there was someone moving around inside a camper behind her house. The officers approached the camper and announced themselves, ordered the person inside the camper to come out, and stated that they were looking for Roger Robare. The person inside the camper did not respond at first, and the officers could hear what sounded like drawers opening and closing. Again, the officers ordered the individual out of the camper; and, when Defendant finally came out, they placed him under arrest. The police did not search the camper at that time.

Later, in an effort to find the shotgun that April Robare had described, police obtained April Robare's consent to search Defendant's and her home in Peru. The police also obtained a warrant to search the Peru home and Defendant's car. When they did not find the weapon at those locations, the police telephoned Wendy Robare at her place of employment to inform her of Defendant's arrest and to ask for her consent to search the camper. She gave the police consent over the phone and later reaffirmed her consent in writing when she spoke to the police at her home. A subsequent search of the camper uncovered what the Government alleges to be a "sawed-off" shotgun and ammunition. Wendy Robare told police that neither she nor her children owned the gun and that she had never seen it before. On January 29, 2008, the Court denied Defendant's motion to suppress the physical evidence that police officers seized from Wendy Robare's camper, holding that Wendy Robare had actual authority to consent to the state police's search.

III. DISCUSSION

A. Discovery Requests

In various submissions, Defendant requested that the Court compel the Government to provide him with a number of items pursuant to Rule 16 of the Federal Rules of Criminal Procedure. See Dkt. No. 37 at 1-3; Dkt. No. 53 at 1-2. The Government contends that it has complied with all of Defendant's discovery requests. Based on the list of items that it claims it has provided to Defendant, this appears to be true.*fn2 Additionally, Defendant withdrew his Rule 16 requests at oral argument.*fn3 Thus, the Court denies Defendant's motion to compel as moot.

Defendant also wishes to depose two witnesses pursuant to Rule 15(a)(1) of the Federal Rules of Criminal Procedure. See Dkt. No. 53at 3. Defendant argues that exceptional circumstances require the preservation of their testimony for trial. According to Defendant, "[b]oth witnesses suffer from serious heart conditions; either could expire any day. . . . [One of the witnesses] claims her doctor advises against traveling; her breathing is assisted by an oxygen tank. [The other witness] has had open-heart surgery. I'm not sure about his ability to travel long distance." See id. at 3-4.

Rule 15(a) provides that "[a] party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice." Fed. R. Crim. P. 15(a). When considering whether exceptional circumstances exist, a court must determine whether (1) the witness is unavailable to testify at trial, (2) the witness' testimony is material to the defendant's case, and (3) the testimony is necessary to prevent a failure of justice. See United States v. Singleton, 460 F.2d 1148, 1154 (2d Cir. 1972) (quotation omitted).

At oral argument, the Court denied Defendant's motion to depose the proposed witnesses because he could not show how their testimony would be material to his defense. Defendant contends that their testimony would demonstrate that ATF Special Agent Mark Meeks attempted to compel them to state that they saw Defendant with a sawed-off shotgun even though they told Special Agent Meeks that they did not. However, Defendant did not demonstrate how this would be relevant to the central issues in this case. The Government stated that it would not call these witnesses to testify. Furthermore, it is too speculative at this point in the litigation to anticipate a relevant impeachment use for their testimony.*fn4 Therefore, as stated at oral argument, the Court denies Defendant's motion to depose these witnesses without prejudice to renew if Defendant demonstrates their unavailability and if the case's development renders their proposed testimony material to the central issues at trial.

B. Suppression Motions

1. Motion for Reconsideration

Defendant moves the Court to reconsider its January 29, 2008 Memorandum-Decision and Order denying his motion to suppress the physical evidence that law enforcement officials seized from Wendy Robare's camper.*fn5 See Dkt. No. 43. Specifically, he argues that Wendy Robare did not have authority to consent to the search because he was the sole inhabitant of the camper at the time that law enforcement officials executed the search. He claims that there was no mutual use as United States v. Matlock, 415 U.S. 164 (1974), requires. ...


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