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United States of America v. Neil Messina

August 8, 2011


The opinion of the court was delivered by: Matsumoto, United States District Judge:


Presently before the court is an oral application by defendant Neil Messina ("Messina" or "defendant") to compel discovery of a New York City Police Department ("NYPD") investigative file, presumably in the possession, custody, or control of the United States Attorney's Office,*fn1 concerning a 1992 murder with which defendant is charged in the instant case. The government opposes the motion. For the reasons set forth below, defendant's motion is granted.


On January 12, 2011, defendant was charged by an eight-count indictment with, inter alia, two racketeering conspiracies, alleging predicate acts including but not limited to murder, robbery, loansharking, and illegal gambling. (See ECF No. 1, Sealed Indictment; see also ECF No. 2, Order to Unseal Indictment.) Count One, Racketeering Act One charges Messina with conspiracy to rob and murder Joseph Pistone ("Pistone") on or about August 17, 1992. (Ind't ¶¶ 16-18.)

During a pretrial conference on June 3, 2011, defense counsel made an oral application to compel the production, pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E), of a file relating to the NYPD's investigation of Pistone's August 17, 1992 murder (the "Homicide File"). Pursuant to an Order by this court, on June 17, 2011, the government filed a letter in opposition to defendant's application for disclosure of the Homicide File. (See ECF No. 81, Motion To Quash Defendant's Request for Disclosure of the NYPD Homicide File ("Gov't Mem."); see also Minute Entry dated 6/3/2011.) On the same day, the government sent defense counsel a letter (the "Brady Letter") purporting to disclose, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Federal Rule of Criminal Procedure 16(a)(1)(E)(i), information from the Homicide File concerning Pistone's robbery and murder. (See Letter from Loretta E. Lynch to Gerald J. McMahon, Esq. and Vincent J. Romano, Esq., dated 6/17/2011 ("Brady Ltr.").) Defendant replied to the government's opposition on June 30, 2011. (See ECF No. 82, Defendant Neil Messina's Memorandum of Law In Support Of His Motion To Compel Production of the "NYPD Homicide File" ("Def. Mem.").)


Federal Rule of Criminal Procedure 16 ("Rule 16") provides the means by which a criminal defendant may seek pre-trial discovery. Rule 16(a)(1)(E) provides, in pertinent part:

Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:

(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.

Fed. R. Crim. P. 16(a)(1)(E). Evidence is material under Rule 16 if it "could be used to counter the government's case or to bolster a defense." United States v. Stevens, 985 F.2d 1175, 1180 (2d. Cir. 1993). "Materiality means more than that the evidence in question bears some abstract logical relationship to the issues in the case." United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991) (quoting United States v. Ross, 511 F.2d 757, 762-63 (5th Cir. 1975)). Rather, the requested information must "enable[] the defendant significantly to alter the quantum of proof in his favor." Id. Nevertheless, "[t]he materiality standard [of Rule 16] normally is not a heavy burden; rather, evidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal." United States v. Stein, 488 F. Supp. 2d 350, 356-57 (S.D.N.Y. 2007) (quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) (internal quotation marks omitted)).

The defendant bears the burden of making a prima facie showing that documents sought under Rule 16(a)(1)(E) are material to preparing the defense. United States v. McGuinness, 764 F. Supp. 888, 894 (S.D.N.Y. 1991); Maniktala, 934 F.2d at 28. To satisfy this burden, a defendant must offer more than conclusory allegations that the requested evidence is material or that it would be useful to the defense. United States v. Ashley, 905 F. Supp. 1146, 1168 (E.D.N.Y. 1995) (citing McGuinness, 764 F. Supp. at 895); see also United States v. Rigas, 258 F. Supp. 2d 299, 307 (S.D.N.Y. 2003) (rejecting defendants' "attempt to equate 'material' with 'useful'" where the production of documents would save defendants time in sifting through discovery).

Discovery in criminal cases is limited by Federal Rule of Criminal Procedure 16(a)(2), which states that "[e]xcept as Rule 16(a)(1) provides otherwise," defendants are not entitled to "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." Fed. R. Crim. P. 16(a)(2); see also United States v. Ghailani, 687 F. Supp. 2d 365, 369 (S.D.N.Y. 2010) (finding that a memorandum prepared by the United States Attorney's Office in connection with the prosecution of the case was protected against disclosure under Rule 16(a)(2) "regardless of its materiality" under Rule 16(a)(1)(E)); United States v. Batista, No. 06-CR-265, 2009 WL 910357, at *10 (E.D.N.Y. Mar. 31, 2009) (denying defendant's request for government reports and records because Rule 16(a)(2) "expressly prohibits such disclosures," without analyzing the application of Rule 16(a)(1)); United States v. Fort, 472 F.3d 1106, 1110 n.2 (9th Cir. 2007) (concluding that despite the "plain reading of the text," Rule 16(a)(2) provides an ...

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