The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge
This case was referred to me by Hon. William M. Skretny for supervision of all pretrial proceedings .*fn1 Familiarity with the background of this case is presumed, and will be discussed only as necessary for purposes of this Decision and Order.
Defendants have filed a number of motions, including a motion to dismiss the Third Superseding Indictment  due to "outrageous government conduct" , and a motion to suppress all evidence obtained pursuant to Title III warrants signed by Judge Skretny . Defendants have requested an evidentiary hearing in connection with these motions. For the following reasons, I conclude that a hearing should be held. Resolution of all other issues raised in defendants' pretrial motions will be deferred pending conclusion of the hearing.
Defendants are allegedly members of the Chosen Few Motorcycle Club ("CFMC"). They are charged in a thirty-two count Third Superseding Indictment with, inter alia, numerous racketeering counts. The investigation leading to these charges arose because of increased hostilities between the CFMC and the Kingsmen Motorcycle Club ("KMC") beginning in or about July 2008. In connection with the investigation, the government made extensive use of a "confidential human source" ("CHS"), whom it subsequently identified as David Ignasiak, a (now former) CFMC member.
According to the government, when it first began utilizing Ignasiak as a CHS in 2006, he was warned that "he could not engage in any criminal activity without the prior approval of the FBI . . . and that if he did engage in criminal activity without this approval, he was subject to prosecution for it". Government's Bill of Particulars , p.3. In the summer of 2008, Ignasiak began wearing a wire in order to record conversations with CFMC members. Musitano Affirmation , ¶17. On August 20, 2008, he told FBI Special Agent Kenneth Jensen, Jr. that he had been asked to accompany CFMC members that evening in order to "find and assault any member of the KMC that the group came across". Jensen Affidavit , Ex. D, ¶30. According to the government, "prior to and in anticipation of that incident [the assault] the case agents instructed David Ignasiak that, to the extent possible, he was to act as a 'spectator,' and was to participate in the activities of the co-conspirators only to the extent necessary to prevent the participants from discovering that he (Ignasiak) was cooperating with the FBI". Government's Bill of Particulars , p.3 (emphasis added).
In Count nine of the Third Superseding Indictment, the government alleges that on the evening of August 20, 2008, several CFMC members attacked KMC member Eugene Siminski with an axe handle. SA Jensen referred to that incident in applying to Judge Skretny for a Title III intercept warrant on October 22, 2008. In his Affidavit in support of the application, SA Jensen downplayed Ignasiak's involvement in the assault, stating that Ignasiak (whom he referred to as "CHS" rather than by name) told him that he was in a vehicle at the time of the assault and that he "locked the door of the vehicle intentionally so that he would not have to participate in the violence". LaTona Declaration , Ex. D, ¶31. SA Jensen then vouched for Ignasiak's credibility, telling Judge Skretny that he had "listened to the portion of the recording where the above described events occurred and state that the information provided in the debriefing of the CHS appears accurate". Id., ¶32. He also told Judge Skretny that the "information provided by CHS is accurate and reliable and has never proved to be intentionally false or misleading". Id., ¶13.
Whereas he assured Judge Skretny that the recordings confirmed that Ignasiak did not participate in the attack on Siminski, several months later SA Jensen gave me a different version of events. In his May 6, 2009 Affidavit submitted in support of the Complaint which commenced this criminal proceeding, SA Jensen told me that "[b]ased on recordings, I am aware that on August 20, 2008, BRADLEY BEUTLER, MARTIN WHITEFORD, PAUL ROORDA, and David Ignasiak attacked a KMC member . . . with an axe handle." LaTona Declaration , Ex. F, ¶14 (emphasis added).
The government argues that "the fact that agent Jensen may have changed his description of the attack from October 28, 2008 to May 9, 2009 does not, as a matter of fact, mean the earlier representation was false". Government's Response , p.14.*fn2 Maybe so, but the discrepancy certainly warrants further inquiry. A review of the recording of that incident (Ignasiak was wired at the time) strongly suggests that, far from being a mere "spectator", Ignasiak was at least an avid cheerleader, if not the outright orchestrator of the assault. He can be heard telling CFMC members that "I talked to Al [Koschtschuk], he requested me to run the situation tonight . . . . Anyone that's not interested or don't like what I said then, leave. Simple as that". [386-1], p.3.*fn3 Later, he states "this is the opportunity, come on guys . . . . Paul why didn't you f*cking hit him". Id., pp.25, 27. In fact, when one of the other CFMC members at one point suggests that they damage Siminski's boat instead of assaulting him, Ignasiak replies that they are "going after individuals, not property . . . the boat didn't do nothing". Id., p.5.
The recording of the assault strongly suggests that Ignasiak was squarely in the midst of the fray, rather than locked in a car, as he allegedly told SA Jensen. Indeed, if Ignasiak were truly concerned about not arousing undue suspicion, then locking himself in the car while the assault was in progress would seem an unlikely thing to do. In fact, at one point, one of the other CFMC members says to make sure that the "child protection" door locks are not engaged, to which Ignasiak replies "nothing like being pinned in". [386-1] p.9.
The government's acknowledgment that "Ignasiak's conduct in that count [relating to the assault on Siminski] wasn't perhaps what it should have been" (, Ex. J, pp.2-3) leads to further questions as to whether Ignasiak was being truthful with SA Jensen when describing the August 20 incident, and/or whether SA Jensen was being truthful with Judge Skretny.*fn4
A. Outrageous Government Conduct
"The concept of fairness embodied in the Fifth Amendment due process guarantee is violated by government action that is fundamentally unfair or shocking to our traditional sense of justice . . . or conduct that is 'so outrageous' that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction against the accused." United States v. Schmidt, 105 F.3d 82, 91 (2d Cir.1997), cert. denied, 522 U.S. 846 (1997). "Especially in view of the courts' well-established deference to the Government's choice of investigatory methods . . ., the burden of establishing outrageous investigatory conduct is very heavy." United States v. Rahman, 189 F.3d 88, 131 (2d Cir.1999), cert. denied, 528 U.S. 982 ...