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United States v. Humphrey

United States District Court, Second Circuit

July 1, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ERIC J. HUMPHREY, et al., Defendants.

DECISION AND ORDER

H. KENNETH SCHROEDER, Jr., Magistrate Judge.

This case was referred to the Hon. Hugh B. Scott by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #2. Thereafter, Magistrate Judge Scott issued an Order of Recusal in the case as to all defendants (Dkt. #131) and Judge Arcara referred the case to the undersigned, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #133.

PRELIMINARY STATEMENT

The defendants, Eric J. Humphrey, Charles M. Humphrey, Jr., James Humphrey, Jr., John E. Humphrey and Anthony Taylor are charged in a one-count indictment with conspiracy to possess with intent to distribute and to distribute 5 kilograms or more of cocaine and to manufacture, possess with intent to distribute, and to distribute, 50 grams or more of cocaine base in violation of Title 21, United States Code, Sections 846. Dkt. # 1. The defendants each also face forfeiture allegations. Id. Defendants Charles M. Humphrey, Jr., John E. Humphrey, Eric J. Humphrey and Anthony Taylor have filed dispositive and non-dispositive motions. See Dkt. ##50 (Charles Humphrey), 57 (John E. Humphrey), 60 (Eric J. Humphrey), 69 (Charles Humphrey (supplemental motion), 113 (Anthony Taylor). The government filed responses to the instant motions. Dkt. ##61, 70. Oral argument was held before Magistrate Judge Hugh B. Scott on February 16, 2011 and March 16, 2011.

This Decision and Order will address defendant John E. Humphrey's nondispositive motions seeking severance, preservation of evidence and to join in the motions filed by co-defendants. Dkt. #57. This Court's Report, Recommendation and Order with respect to John E. Humphrey's motion to suppress the evidence seized from 39 Phyllis Avenue was filed separately.

DISCUSSION AND ANALYSIS

Motion for Severance

By this request, defendant John Humphrey seeks severance from his codefendants. In support of this motion, defendant John Humphrey states, "John Humphrey's defense will be that he did not engage in any illegal activity relating to his co-defendants nor did he enter into any agreement to do so. As such, this defendant will be required to separate himself quite forcefully from his co-defendants' alleged criminal activities. In essence, John Humphrey's defense will be that he was not involved in his co-defendants' multiple wrongdoings." Dkt. #57, ¶11. A Decision and Order on defendant John Humphrey's motion to sever is left to the discretion of the District Judge to whom this case is assigned, District Judge Richard J. Arcara.

Preservation of Evidence

By this request, the defendant seeks an Order from this Court directing the government to "preserve and retain intact any evidence, tangible papers, reports, law enforcement agent notes, objects or other information relating in any way to the investigation which led to this indictment..." Dkt. #57, ¶13. In its response, the government states,

[t]he government has made available of [sic] all tangible objects obtained pursuant to search warrants or otherwise and will make available photographs material to the preparation of a defense or intended to be used as evidence-in-chief at trial or obtained from or belonging to the defendant. The defendants are apprised that they can examine such material in the custody of the DEA and pursuant to Rule 12(b)(4)(B), such evidence shall be used by the government against them at trial....
[r]egarding rough notes, no such basis exists at this time for providing the requested materials, if they exist. The government will endeavor to maintain such materials, if they exist. This in no way should be construed as any concession that said notes are subject to disclosure.

Dkt. #61, ¶¶6 and 8.

Although perhaps unnecessary, based on the representations made by counsel for the government concerning its acknowledgment of its obligation and its agreement to endeavor to maintain such materials, the express admonition of the Court of Appeals for the Second Circuit bears repeating in ...


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