United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
Before the Court are defendant Kevin Allen ("Allen") and defendant Thamud Eldridge's ("Eldridge") (collectively referred to as "defendants") motions for inspection and disclosure of grand jury transcripts, modification of the protective order, and an order striking surplusage from the Superseding Indictment. For the reasons set forth below, the Court finds the following: (1) defendants were not prejudiced by perjured testimony before the grand jury and their motion for further disclosure of the grand jury minutes is denied; (2) defendants' motion for modification of the protective order is denied; and (3) defendants' motion to strike surplusage from the Superseding Indictment is granted.
RELEVANT FACTS AND PRIOR PROCEEDINGS
Defendants Thamud Eldridge, Kashika Speed, Kevin Allen, and Galen Rose are charged with various offenses including racketeering, racketeering conspiracy, murder in aid of racketeering, conspiracy to distribute controlled substances, possession of firearms in furtherance of drug trafficking crimes, violent crime in aid of racketeering-kidnapping, Hobbs Act robbery/conspiracy, use, carry and brandish of a firearm during and in relation to and in furtherance of crimes of violence, use, carry and discharge of a firearm during and in relation to crimes of violence causing death, and felon in possession of a firearm. (Dkt. No. 164)
In sum, it is alleged that defendants were members of a criminal organization that engaged in the distribution of cocaine, cocaine base, marijuana and heroin and also committed acts of violence in furtherance of their drug trafficking enterprise, including murder, robbery and extortion. (Dkt. No. 164) The organization allegedly operated principally on the East Side of Buffalo, New York. Id. The Government contends that defendants robbed, murdered and attempted to rob and murder other individuals involved in drug distribution and that they carried, brandished and discharged firearms in furtherance of these activities. Id. The murder counts set forth in the Superseding Indictment involve the deaths of Thedrus Laster and Sam Jones who were killed, in separate incidents, in April 2005. Id.
Defendants filed extensive pre-trial motions and a number of hearings were conducted before Magistrate Judge Hugh B. Scott. Magistrate Judge Scott issued a comprehensive Report and Recommendation and two Decision and Orders with respect to defendants' pre-trial motions. (Dkt. Nos. 216, 217 and 221) Defendants filed objections, the Government filed responses, and the defendants were permitted to file replies. Oral argument as to defendants' objections was held on September 6 and September 11, 2013. On November 20, 2013 this Court issued a Decision and Order adopting the Magistrate's findings in their entirety. (Dkt. No. 249)
On October 17, 2013, defendant Allen filed a motion requesting an order returning this matter to Magistrate Judge Scott for various forms of relief as well as additional discovery. (Dkt. No. 244) Defendant Eldridge joined in the motion. (Dkt. No. 246) Specifically, defendants requested that the case be returned to the Magistrate Judge for the following: (1) a hearing addressing the existence of any report or memorandum memorializing the exculpatory statements allegedly made by defendant Allen to the Buffalo Police Department; (2) a hearing addressing the seizure and sale of the vehicle defendant Allen was allegedly driving on the night of one of the murders; (3) an in camera inspection, and disclosure, of grand jury minutes; (4) determination of additional discovery issues;
(5) modification of the protective order; and (6) an order striking surplusage from the Superseding Indictment.
On January 23, 2014, this Court issued a Decision and Order with respect to defendants' motion for an order returning the case to the Magistrate Judge for various forms of relief. (Dkt. No. 257) Therein, the Court granted the portion of defendants' pre-trial motion requesting that the case be returned to Magistrate Judge Scott for a determination as to whether an evidentiary hearing was necessary with respect to the existence of exculpatory statements and/or facts surrounding the same, as well as seizure of the car. This portion of defendants' motion remains pending before Magistrate Judge Scott.
This Court further found that an in camera review of the testimony presented to the grand juries regarding the Jones murder was warranted to determine: (1) whether there was sufficient independent evidence to indict defendants absent the perjured testimony; and (2) whether defendants were unduly prejudiced by the perjured testimony. The Court ordered the Government to produce all grand jury transcripts pertaining to the Jones murder and reserved decision, pending an in camera review, as to defendants' request for disclosure of the grand jury minutes in order to supplement a motion to dismiss. The Court's findings with respect to the grand jury issues, as well as defendants' requests for modification of the protective order and to strike surplusage from the Superseding Indictment, are as follows.
Grand Jury Testimony
According to submissions by the Government and defense counsel, one of the witnesses who testified before the May 2008 grand jury regarding the murder of Sam Jones committed perjury. Specifically, after this individual testified, the Government learned that the so-called witness was actually incarcerated at the time of the incident and could not have been a witness to the murder. In order to remedy this, the Government superseded the indictment, presented the superseding indictment to a new grand jury impaneled in November 2010, and called a law enforcement officer to correct the perjured testimony. A second cooperating witness had also testified, before the May 2008 grand jury, regarding the Sam Jones murder. That witness's testimony, along with testimony of other witnesses, was presented to the November 2010 grand jury.
Defendants claim that there are outstanding issues as to how the second cooperating witness identified defendant Allen, and as to whether the perjured testimony affected the second witness's identification of defendant Allen. Defendants request the release of grand jury minutes to defense counsel in order to "supplement the argument in support of dismissal of those counts of the indictment" involving the Sam Jones murder. The Government maintains that the perjured testimony was corrected, that no prejudice occurred, and ...