DECISION AND ORDER
H. KENNETH SCHROEDER, Jr., Magistrate Judge.
This case was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Text Order of Referral dated August 12, 2010. Presently pending before the Court is defendant Felix J. Vasquez's [according to counsel for the defendant, the correct spelling of the defendant's last name is Vazquez] motion seeking an order:
a. requiring the government to produce to the Court for its in camera review the entirety of the Jencks material from the Rochester case [ United States v. Velez, et al., 08-CR-6210-CJS];
b. permitting counsel for defendants Martinez, Vazquez, Canales, and Marcial to review this Jencks material;
c. permitting counsel to identify to the Court, ex parte and under seal, the specific information each believes should be disclosed; and
d. thereafter, requiring the government to disclose this information - under the conditions of a protective order if deemed necessary - for the defendants to use as they deem appropriate.
Dkt. #305-1, ¶ 4(a)-(d). In support of the instant motion and for reasons that will be explained below, counsel for Vazquez submitted to this Court an ex parte affidavit which the Court will direct be filed under seal. Co-defendant Angel Luis Marcial, a/k/a "Bate" has filed a motion to join the instant motion. Dkt. #307. Co-defendant Marcial's motion to join (Dkt. #307) is granted with the further directive and finding that the decision made by this Court as set forth below as to defendant Vazquez's motion shall also be deemed to be the finding and Order of this Court as to the defendant Marcial. The government filed opposition to the instant motion. Dkt. #320. Oral argument on the instant motion was held on March 18, 2013.
On August 12, 2010, a Federal Grand Jury empaneled in the Western District of New York returned a six-count Indictment charging defendants, Jose Martinez, a/k/a "Noelle", Angel Luis Marcial, a/k/a "Bate", Juan DeJesus Santiago, a/k/a "Javi", Felix J. Vasquez [sic], a/k/a "Lolo" and Carlos A. Jorge Canales, a/k/a "Nito" with the following crimes: conspiracy to possess and distribute cocaine and cocaine base (Count 1) in violation of Title 21, United States Code, Section 846; conspiracy to kill Quincy Turner, a government witness, (Count 2) in violation of Title 18, United States Code, Section 1512(k); the killing and the conspiracy to kill Quincy Turner to prevent his communication with law enforcement (Count 3) in violation of Title 18, United States Code, Sections 1512(a)(1)(C), 1512(a)(3)(A) and 2; conspiracy to retaliate against Quincy Turner for providing information to a law enforcement officer (Count 4) in violation of Title 18, United States Code, Sections 1513(f) and 1513(a)(2)(A); retaliation against Quincy Turner for providing information to a law enforcement officer (Count 5) in violation of Title 18, United States Code, Sections 1513(a)(1)(B) and 1513(a)(2)(A) and 2; and the possession, use, and discharge of a firearm in connection with the killing of Quincy Turner (Count 6) in violation of Title 18, United States Code, Sections 924(c)(1)(A)(iii), 924(j)(1) and 2. Dkt. #1. As against each named defendant, the Indictment sets forth a Notice of Special Findings with respect to Counts 2 - 6 pursuant to Title 18, United States Code, Sections 3591 and 3592 indicating, inter alia, that the crimes charged in Counts 2 through 6 are crimes for which the government may seek a sentence of death. The government has since notified the defendants and the Court that it will not seek the death penalty against any of the defendants.
United States v. Velez, et al.
Matthew R. Lembke was assigned to represent Felix Vazquez in connection with the United States v. Velez, et al.; 08-CR-6210 matter that was pending in the Rochester division of the Western District of New York. Dkt. #305-1, ¶ 3. Although the instant matter and the Velez matter are not "related, " defendants Felix Vazquez and Juan DeJesus Santiago are common to both cases and upon information and belief, there are Velez defendants and/or witnesses who may be cooperating and may be witnesses in the instant matter. In or about July 2011, the trial for some of the Velez defendants (including Vazquez) was rapidly approaching and in anticipation of fulfilling its obligation to disclose Jencks Act material, the government filed a motion for a protective order to limit the defendants' ability to disseminate and use the material. Id. at ¶ 8. With the consent of counsel for the remaining Velez defendants, on August 1, 2011, United States District Judge Siragusa issued a protective order limiting the defendants' ability to use and disseminate information in the Jencks Act material. Id. at ¶ 9.
Among other things, the protective order required that at the conclusion of the Velez matter, the defendants had to return all copies of the Jencks Act material to the government. Id. Following the filing of the protective order on August 1, 2011, the government disclosed the Jencks Act material only to those defendants whose cases were still pending. Id. at ¶ 10. Specifically, the protective order provided,
ORDERED, that the material set forth above [Rule 3500/Jencks Act and Giglio materials] shall be used by counsel for the defendant and the defendant solely in connection with trial or other proceedings in this action, including any appeals, and shall not be disclosed, shown, or distributed in any manner to third parties by the defendant or counsel, except that counsel may provide said materials to those persons or entities employed or engaged for the purpose of assisting in the defense of this action...
Case No. 08-CR-6210, Dkt. #728. In September 2011, defendant Vazquez pleaded guilty to one-count of using a telephone to commit the crime of the distribution of heroin in violation of Title 21, United States Code, Section 843(b). Id. at ¶ 6. On May 8, 2012, Defendant Vazquez was sentenced to a term of imprisonment of 15 months, which he had ...