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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 Charles M. Humphrey, Jr.'s non-dispositive motions. This Court's Report, Recommendation and Order with respect to Charles M. Humphrey Jr.'s motion to suppress electronic evidence will be filed separately.

DISCUSSION AND ANALYSIS

Discovery under Rules 12 and 16 of the Federal Rules of Criminal Procedure Progress Reports

By this request, defendant Charles Humphrey seeks the disclosure of progress reports submitted to the issuing judge relating to the electronic eavesdrop warrants. Dkt. #50, ¶¶12-14. Although in its response, the government does not specifically respond to defendant Charles Humphrey's request for the disclosure of progress reports, the government does state that pursuant to voluntary discovery, the wiretap applications, affidavits, warrants, sealing orders, conversations, transcripts, line sheets and minimization instructions were disclosed. Dkt. #61, ¶4. In an Order filed February 18, 2011, Magistrate Judge Scott found, "[i]n connection with their application for a hearing, the defendants have requested production of... the progress reports... involved in this case. The defendants have not demonstrated any nexus between the progress reports and the issue of necessity as presented to the judges issuing the warrants. This request is denied." Dkt. #68, p.5. To the extent a further ruling is necessary, in accordance with the reasoning set forth in United States v. Chimera, 201 F.R.D. 72 (W.D.N.Y. 2001), defendant Charles Humphrey's request for the disclosure of progress reports is denied.

Pursuant to 18 U.S.C. § 2518(6), a judge who issues an intercept order in accordance with § 2518(1) may direct that reports "showing what progress has been made toward achievement of the authorized objective [of the order] and the need for continued interception" be provided. Such reports are to be filed with the judge "at such intervals as the judge may require." Id . The purpose of reports directed pursuant to § 2518(6) is "so that any possible abuses might be quickly detected and halted" by the court thereby furthering Congress' objective in enacting Title III of limiting the extent of court authorized intrusions on the privacy of oral communications. United States v. Kahn , 415 U.S. 143, 154-55, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974).

Chimera, 201 F.R.D. at 76. Here, the electronic eavesdropping warrants at issue were issued by New York State Supreme Court Justices Michalski and Buscaglia. The Court notes that New York State has a nearly identical provision to section 2518(6) insofar as it states, "[a]n eavesdropping or video surveillance warrant may require reports to be made to the issuing justice showing what progress has been made toward achievement of the authorized objective and the need for continued eavesdropping or video surveillance. Such reports shall be made at such intervals as the justice may require." N.Y. Criminal Procedure Law § 700.50(1) (McKinney 2013). Although each of the warrants at issue here provided the same language, "ORDERED, that the District Attorney or his agent shall submit progress reports to this Court, as the Court directs, showing what progress has been made toward achievement of authorized objectives of this warrant..., " there is nothing in the record before this Court to suggest that such progress reports were ever requested by the issuing Justices.

Sealing Orders

By this request, defendant Charles Humphrey seeks the disclosure of all the sealing orders issued with respect to the electronic surveillance warrants. Dkt. #50, ¶15. As noted above, in its response, the government noted that the sealing orders were previously disclosed. Dkt. #61, ¶4. The government indicated during the February 16, 2011 oral argument that to the extent any sealing orders had not been disclosed, they would be immediately disclosed. Furthermore, the Court notes that the sealing orders and the timeliness of the sealing of intercepted conversations (tapes) is a matter that was the subject of an evidentiary hearing before Magistrate Judge Scott and is presently pending before the undersigned. This Court's Report, Recommendation and Order with respect to defendants' motion to suppress for failure to properly seal will be forthcoming.

Physical Surveillance Reports

Citing United States v. Lilla, 699 F.2d 99 (2d Cir. 1983) and United States v. Concepcion, 579 F.3d 214 (2d Cir. 2009), defendant Charles M. Humphrey, Jr. seeks the disclosure of any physical surveillance reports. Dkt. #50, ¶¶16-22. In its response, the government states that it "declines to provide those other materials requested in the motions as outside the purview of Rule 16." Dkt. #61, ¶4. Thereafter, in a footnote, the government specifically references defendant Charles Humphrey's request for physical surveillance reports. Indeed, the government states that the case of United States v. Concepcion , cited by the defendant, provides "no support for defendant's proposition that physical surveillance reports are discoverable pursuant to Rule 16." Dkt. #61, ¶4, n.3. Following the February 16, 2011 oral argument, Magistrate Judge Scott ordered the disclosure of the surveillance reports up to the dates of the respective warrant applications. Dkt. #68, p.5. By reason of the fact that defendants have sought suppression of the wiretap evidence on the basis that, inter alia, necessity for electronic surveillance had not been established, because traditional investigative techniques such as physical surveillance had been successful (as evidenced by the disclosed reports), and the fact that Buffalo Police Department Detective Pittorf testified at length about specific instances of physical surveillance, defendant Charles Humphrey's request is denied as moot.

Expert Discovery

By this request, defendant Charles Humphrey requests that the government be ordered to comply with the requirements set forth in Rule 16 of the Federal Rules of Criminal Procedure concerning the disclosure of a written summary of anticipated expert testimony. Dkt. #50, ¶¶23-24. In its response, the government states, "[t]he government will comply with defendants' requests for expert testimony pursuant to Rule 16(a)(1)(G) of witnesses who will testify under Rules 702, 703 and 705 F.R.E." Dkt. #61, ¶5. Based on the government's response, defendant's request is denied as moot.

Bill of Particulars

In six separately lettered requests, defendant Charles Humphrey seeks information concerning the conspiracy to possess with intent to distribute cocaine and cocaine base charged in Count 1 of the Indictment. Dkt. #50, ¶¶30(a)-(f). In addition, defendant Charles Humphrey seeks particularization with respect to the first forfeiture allegation. More specifically, defendant Charles Humphrey requests that the government be required to state with particularity: the identity of each unindicted coconspirator known to the government; the actions taken by each individual in furtherance of the charged conspiracy; the identity of each unknown co-conspirator and the actions taken in furtherance of the charged conspiracy; the exact location, substance and identity of participants in each alleged act undertaken in furtherance of the charged conspiracy; and, the date, time, location and substance of each act performed by Charles Humphrey which rendered any of the assets set forth in the Indictment to be subject to forfeiture. Id.

In its response to defendant Charles Humphrey's request for particularization of the conspiracy charge and the forfeiture ...


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