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United States v. Larson

December 29, 2008


The opinion of the court was delivered by: Honorable Hugh B. Scott United States Magistrate Judge


Hon. Hugh B. Scott

Before the Court are defendants' separate omnibus motions*fn1 which seek various forms of discovery and other relief. In particular, defendants moved for production of Brady material; production of discovery; production of Federal Rule of Evidence 404(b) materials; production of Jencks Act materials; search of agents' personnel files; preservation of evidence; production of Federal Rule of Evidence 807 residual evidence; notice, pursuant to Federal Rule of Criminal Procedure 12(b)(3), of the Government's intention to use evidence that defense is entitled to under Federal Rule of Criminal Procedure 16 (Docket No. 65, Dewald Atty. Aff. ¶ 51), reserving the right to file a motion to suppress statements (id. ¶ 55), as well as to suppress evidence (id. ¶ 51); request an audibility hearing; and disclosure of witness statements and grand jury testimony. Some defendants moved to join in the motions of other defendants. Defendants also sought severance of their case from the main prosecution; the right to conduct voir dire of the Government's experts or hold a hearing on the experts. The Court separately will consider these defendants motions for individual bills of particulars (Docket No. 90). The Government also moves for reciprocal discovery (Docket No. 85, Gov't Omnibus Response at 74-75).

The Government has filed responding papers (Docket No. 85) and oral argument was heard on December 2, 2008 (text entry, Dec. 2, 2008), and the motions were deemed submitted on that day.


This is a racketeering conspiracy, Hobbs Act conspiracy, racketeering forfeiture, and aiding and abetting prosecution involving International Union of Operating Engineers, Local 17, AFL-CIO (hereinafter " Local No. 17") (Docket No. 4, Superseding Indict.). In the Superseding Indictment, the Government alleges that Local No. 17 functioned as a criminal enterprise from about January 1997 to December 2007 (id. ¶ 1).

Defendants Dewald (Docket No. 65), Eddy (Docket No. 80), Larson (Docket No. 77), and Kirsch (Docket No. 73) each seek most of the forms of relief, with most of the remaining defendants joining in these motions. For purposes of simplicity, the motions will be deemed to be made by all defendants, although each individual defendant may request slightly different relief, and will be discussed by the particular moving defendant or typical moving defendant.


I. Discovery

Defendants*fn2 seek various items of pretrial discovery. Although there is no general constitutional right to pretrial discovery in a federal criminal case, a defendant does have a pretrial discovery right with respect to certain matters. For example, under the Fifth Amendment's due process clause, a defendant is entitled to specific exculpatory evidence which is material either to guilt or punishment. In addition, the Government has certain disclosure obligations under Rule 16 of the Federal Rules of Criminal Procedure and the Jencks Act, 18 U.S.C. § 3500.

A. Statements

Pursuant to Rule 16(a)(1)(A) the defendants seek any written or oral statements made by the defendants which are within the possession custody or control of the Government, or which through the exercise of due diligence, may become known to the Government (e.g., Docket No. 73, Kirsch Atty. Affirm. ¶ 39). In particular, Eddy seeks disclosure of Grand Jury testimony (Docket No. 80, at 22).

Defendant must state a particularized need for these transcripts "in order to present a vigorous defense" which outweighs grand jury secrecy, Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959). There are occasions "when the trial judge may in the exercise of his discretion order the minutes of a grand jury produced for use on his cross-examination at trial. Certainly 'disclosure is wholly proper where the ends of justice require it,'" Pittsburgh Plate Glass, supra, 360 U.S. at 400 (quoting United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234 (1940)). The burden is upon defendant to show a particularized need exists that outweighs the policy of grand jury secrecy, id. Particularized need includes impeachment of witness at trial, refresh recollection, and testing witness credibility, United States v. Proctor & Gamble Co., 356 U.S. 677, 683 (1958).

As was held in the Pittsburgh Plate Glass case, supra, 360 U.S. at 400, defendant here has not made a showing of particularized need, but cf. Dennis v. United States, 384 U.S. 855, 872-73 (1966) (Court found that defense did not fail to make out a particularized need, listing the circumstances of particularized need). Merely stating the desire to make a vigorous defense in general does not show a particular need for a given portion of the grand jury testimony (such as specify which witness's testimony is necessary for that vigorous defense) or show whether that grand jury testimony is needed for impeachment, refreshing recollection or testing credibility.

Defendants' motions on this ground are denied.

Rule 16(a)(1)(A) provides that, upon request, the Government must disclose any written or recorded statements made by a defendant, before or after arrest, in response to interrogation by any person known to the defendant to be a Government agent; and recorded testimony of the defendant before the grand jury which relates to the offense charged.*fn3 Failure of the Government to disclose a defendant's statements to a Government agent may rise to the level of constitutional due process violation, Clewis v. Texas 386 U.S. 707 (1967).

In this case, the Government has represented that it believes that it has already disclosed all statements made by the defendants. To the extent that the Government has not yet done so, pursuant to Rule 16 (a)(1)(A) the Government is hereby directed to produce all such statements made by the defendants.

B. Statements of Co-Conspirators

Defendants*fn4 have also requested production of all statements of any co-conspirator, whether charged or uncharged. This request is denied. It is well established that the statements of co-conspirators are not discoverable under Rule 16(a). In re United States, 834 F.2d 283, 286 (2d. Cir. 1987); United States v. Percevault, 490 F.2d. 126 (2d Cir. 1974); United States v. Green, 144 F.R.D. 631, 638 (W.D.N.Y. 1992). The Jencks Act provides the exclusive procedure for discovering statements that Government ...

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