The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are several moving defendants' separate omnibus motions (Docket Nos. 74, Charles Palmer, Sr.; 75, 76, George Krajas; 84, Michael Smerka; 72, Aleathea Stone; and 85, 86, Charles Palmer, Jr.) seeking various forms of relief. Some of the other defendants joined in these motions (Docket Nos. 81 (William Bart Alexander); 80, 96 (Timothy Borkowski); 82 (Christopher Carluccio); 77 (James Simmons)), with some of the moving defendants also joined in co-defendants' motions, Docket Nos. 84 (Smerka), 85 (Charles Palmer, Jr.), 86 (Charles Palmer, Jr., amended motion), 78 (Charles Palmer, Jr.)*fn1 . This Order considers the common requests by defendants for non-dispositive discovery relief. A separate Report & Recommendation will consider the various suppression motions made by some of these moving defendants.
Responses to these motions were duly filed (Docket Nos. 90 (Government response to Palmer, Sr., motion), 87 (response to Krajas's motion), 95 (supplemental response to Krajas's motion), 91 (response to Smerka motion), 89 (response to Stone motion), 88 (response to Palmer, Jr., motion)) and the Government also moved for reciprocal discovery from these defendants (Docket Nos. 90 ¶ 32; 87 ¶ 31; 91, ¶ 15; 89, ¶ 13; 88, ¶ 31). These motions were argued on March 28, 2012 (text minute entry, Mar. 28, 2012), with further briefing ordered on the Franks hearing issue by April 10, 2012, and Government response by April 20, 2012. That briefing was filed (see Docket Nos. 93 (Krajas Memo. of Law), 95 (Government supplemental response to Krajas)) and the motions were initially deemed submitted as of April 20, 2012. Meanwhile, on March 30, 2012, this Court had to recuse as to one defendant, Gregory Miller (Docket No. 92)*fn2 and Chief Judge Skretny referred the entire case to Magistrate Judge Schroeder (Docket No. 98). This referral was modified, however, on June 13, 2012, to refer this case (save Miller) back to the undersigned (text Order, June 13, 2012). At a status conference held on June 19, 2012, this Court deemed the motions fully submitted as of that date and calculated the time remaining on the Speedy Trial Act clock (text of minute entry, June 19, 2012).
Charles Palmer, Sr., moved, on April 10, 2012, for a two-week extension of the supplemental motion date (Docket No. 94) and Krajas separately moved on April 18, 2012, for extension of time (to May 4, 2012) to file his supplemental motion (Docket No. 97). These motions were never formally decided, although Krajas filed his memorandum on May 8, 2012 (see Docket No. 99) and Palmer, Sr., did not file any supplemental papers. Upon further consideration, the preliminary Speedy Trial Act calculation made on June 19, 2012, is amended; the Speedy Trial Act has not expended any time given this pending motion for extension of time, see 18 U.S.C. § 3161(h)(1)(D). Those motions (Docket Nos. 94, 97) are now denied as moot given Krajas' filing and this Court's determination of the underlying motions.
Defendants were indicted in a multiple count Indictment for conspiracy by all eleven defendants to possess with intent to distribute cocaine, cocaine base, marijuana, and hydrocodone from at least November 2010 to the date of the Indictment (Docket No. 1, Indict., Count 1). Two defendants also were charged with seven individual counts of possession of cocaine, cocaine base or marijuana by George Krajas or Charles Palmer, Sr., or by both Krajas and Palmer, Sr., together (id. Counts 2-8). The Indictment also charges a forfeiture allegation against premises on Broadway in Buffalo, New York (id. at pages 7-8). The alleged possessions occurred in November of 2010, May and June of 2011 (id., Counts 2-8).
Defendants seek the pre-trial disclosure of the identity of any informants in this case (e.g.,
Docket No. 72, Stone Atty. Affirm. ¶ ¶ 7-11; Docket No. 74, Palmer, Sr., Atty. Affirm. ¶¶ 11-16). In general, the Government objects to defendants' expansive discovery requests (e.g., Docket No. 90, Gov't Response re Palmer Sr. ¶ 10).
The Government is not required to furnish the identities of informants unless it is essential to the defense. Roviaro v. United States, 353 U.S. 52, 60-61 (1957); United States v. Saa, 859 F.2d 1067, 1073 (2d Cir.), cert. denied, 489 U.S. 1089 (1988). Nor does Rule 16 require the Government to disclose the names of witnesses prior to trial. United States v. Bejasa, 904 F.2d 137, 139 (2d Cir.), cert. denied, 498 U.S. 921 (1990).
Defendants each have not established that the pre-trial disclosure of the identities of any informants is essential to their respective defenses. This request is denied.
Defendants next seek various forms of discovery. The Government responds that in general it has complied fully with its discovery obligations to each defendant (e.g., Docket No. 90, Gov't Response to Palmer, Sr., Motion ¶ 1).
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 ...