The opinion of the court was delivered by: Hugh B. Scott United States Magistrate Judge Western District of New York
Before the Court are omnibus motions filed on behalf of the respective defendants (Docket No. 26 and 51).*fn1
On October 2, 2008, the Grand Jury issued an Indictment charging Joseph Tigano III and Joseph Tigano, Sr. with various drug trafficking offenses. Both defendants are charged with the unlawful manufacture of 1,000 or more marijuana plants [Count 1]; the unlawful possession with the intent to distribute marijuana [Count 2]; the unlawful use of a place to manufacture and distribute marijuana [Count 3]; conspiring to commit the offenses set forth in Counts 1 through 3 [Count 4]; and possession of a firearm in furtherance of the drug trafficking offenses [Count 5]. Joseph Tigano III is also charged with unlawful possession of firearms [Count 6]. The Indictment also asserts various forfeiture counts [Counts 7 and 8].
The defendants' motion papers list various items of pretrial discovery which they have requested in this matter. During oral argument on May 27, 2010, the defendants identified the following items as being outstanding:
1. Production of reports prepared by IRS Criminal Investigator Special Agent Jaime Preston. Except as Rule 16(a) (1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500. See Federal Rules of Criminal Procedure Rule 16(a)(2). United States v. Newton, 2009 WL 2876169 (W.D.N.Y. 2009).
2. Any and all reports referred to in the search warrant application. The defendants are entitled to disclosure of any reports or documents which were presented to the judicial officer in connection with the issuance of the search warrant. To the extent that such materials have not yet been disclosed, the government is directed to produce such materials to the defendants.
3. The defendants seek copies of photographs and or video taken by law enforcement agents while surveilling 30 Mill Street. Similarly, they seek all reports, documents, photographs or video taken by Captain Kevin Caffery, including FLIR scan operations conducted on March 2, 13, and 23 of 2008. Pursuant to Rule 16(a)(1)(E), such photographs or video in the government's possession must be produced if "(i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant." The defendants have not articulated a basis upon which to conclude that the surveillance photographs are material to preparing their defense and do not claim that the photographs, video or reports belong to them. The items must be produced if the government intends to use them in its case-in-chief at trial. Further, the items must be produced if they were part of the search warrant application.*fn2 Finally, the items must be produced pursuant to the District Court's trial order if they constitute exculpatory material under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny.
4. The defendants acknowledge that the defendant's computer has been returned, but request copies of any forensic reports, if any. The government shall produce such reports, if any exist.
5. The defendants seek copies of all financial documentation reviewed as part of this investigation, including certain specified bank account records and IRS tax records. To the extent that they were used in support of the search warrant application or my otherwise be used in the government's case-in-chief, the government shall produce such documents.
6. The defendants seek copies of all utility records obtained from National Grid relating to the electrical usage at 30 Mill Street. To the extent such records are in the government's possession, custody or control, the government is directed to produce these documents.
7. The government has not produced any audio or video recordings (or transcripts), or any laboratory reports as identified in Docket No. 26, ¶¶ 7(m), (p), and (q). The defendants ask that the government clarify that the material has not been produced because it does not exist. The government ...