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United States v. Busch

United States District Court, W.D. New York

May 30, 2014

UNITED STATES OF AMERICA,
v.
Tyshawn Bradley Busch, et al, Defendants.

DECISION and ORDER

HUGH B. SCOTT, Magistrate Judge.

Before the Court are the following motions filed by the respective defendants: Darnell Brown (Docket Nos. 101, 103 and 105); Nanette Brown (Docket No. 104); Melvin Tucker (Docket No. 107); Latifah Donaldson (Docket No. 108); Brandon Atkins (Docket No. 109); Tyshawn Bradley (Docket No. 111); David Varner (Docket No. 112) Phayon Redmon (Docket No. 113); Dallas McLamore (Docket Nos. 115 and 151); Tara Robinson (Docket No. 117); Tashawn Gay (Docket Nos. 124 and 126); and Eric Ross (Docket No. 125).

Background

On March 27, 2013, the Grand Jury for the Western District of New York issued an indictment charging Tyshawn Bradley ("Bradley"), Darnell Brown ("D. Brown"), Dallas McLamore ("McLamore"), Eric Ross ("Ross"), Brandon Atkins ("Atkins"), Tashawn Gay ("Gay"), Melvin Tucker ("Tucker"), Nannette Brown ("N. Brown"), David Varner ("Varner"), Latifah Donaldson ("Donaldson"), Tara Robinson ("Robinson") and Phayon Redmon ("Redmon") with conspiracy to commit the following offenses:

(a) to possess and distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 841(b)(1)(B);

(b) to use and maintain a place for the purpose of manufacturing and distributing cocaine base in violation of 21 U.S.C. §856(a);

(c) possession with the intent to distribute cocaine base on and within 1000 feet of housing owned by the Buffalo Municipal Housing Authority, a public housing authority, in violation of 21 U.S.C. §860(a); and

(d) employing persons under the age of 18 to possess and distribute cocaine base in violation of 21 U.S.C. §861(a)(1). [Count 1].

The Grand Jury also charged: Bradley, D. Brown, McLamore, Ross and Varner with maintaining a drug involved premises at 305 Perry Street, Apt. 6C in violation of 21 U.S.C. §856(a) and 18 U.S.C. §2 [Count 2]; Bradley, D. Brown and McLamore with maintaining a drug involved premises at 124 Fulton Street, Apt. 4B in violation of 21 U.S.C. §856(a) and 18 U.S.C. §2 [Count 3]; Bradley, D. Brown, McLamore and Robinson with maintaining a drug involved premises at 119B Fulton Street in violation of 21 U.S.C. §856(a) and 18 U.S.C. §2 [Count 4]; Atkins with possession with the intent to distribute cocaine base on February 8, 2013 in violation of 21 U.S.C. §841(a)(1) and 841(b)(1)(C) [Count 5]; Atkins with possession with the intent to distribute cocaine base on February 15, 2013 in violation of 21 U.S.C. §841(a)(1) and 841(b)(1)(C) [Count 6]; Atkins with possession with the intent to distribute cocaine base on February 19, 2013 in violation of 21 U.S.C. §841(a)(1) and 841(b)(1)(C) [Count 7]; Atkins with possession with the intent to distribute cocaine base on March 5, 2013 in violation of 21 U.S.C. §841(a)(1) and 841(b)(1)(C) [Count 8]; Atkins with possession with the intent to distribute cocaine base on March 14, 2013 in violation of 21 U.S.C. §841(a)(1) and 841(b)(1)(C) [Count 9]. The indictment also includes various forfeiture allegations.

Discovery

The defendants' respective motions seek various types of pretrial discovery. The government has produced substantial discovery in this case. On April 22, 2013, Chief Judge William M. Skretny issued a Protective Order restricting the government's disclosure of wiretap information - allowing defense counsel to view the information and discuss the information with the defendants in counsel's respective offices, but counsel were not permitted to provide copies of the information to the defendants. (Docket No. 51). Defendant D. Brown objected to the protective order on First Amendment and Due Process grounds. Chief Judge Skretny rejected these arguments, but provided that to the extent that D. Brown argued that the terms of the protective order made it impractical for him to view the material because he is incarcerated, the parties were to discuss the issue to reach an agreement as to how to resolve the issue. During oral argument, counsel for D. Brown advised that the issue had not been resolved. To the extent that counsel for D. Brown reasserted First Amendment and Due Process arguments, those issues have been resolved by Chief Judge Skretny (Docket No. 51 at page 2). It appears that only a logistical issue remains as to how counsel can review this material with his client in a correctional facility. The Court directs that counsel for D. Brown and the government work together to make arrangements so that counsel can meet with D. Brown at the correctional facility in which he is housed to review the material subject to the terms of the Protective Order. The remaining terms of the Protective Order are to be followed. If a Court Order is necessary to obtain the cooperation of the correctional facility, the parties shall agree to the terms of a proposed order and submit it to the Court for consideration. D. Brown also argued that discovery as to the ownership of the housing project by the Buffalo Municipal Housing Authority ("BMHA") has not yet been provided. To the extent that the government must establish ownership of the housing project by the BMHA pursuant to 21 U.S.C. § 860(a), the government shall produce documentary evidence, if any, of such ownership to the defendants. Defendants Robinson and Bradley have asserted that they are still awaiting the production of laboratory reports. At oral argument, the government represented that the reports would be produced once they were obtained by the government. It appears that all other discovery issues have been resolved.

Rule 12 Notice

Various defendants have included requests for notice under Rule 12 in their respective motions. The government's respective responses to such motions often included notice under Rule 12. (i.e. Docket No. 130 at page 10). The defendants have not articulated that such notice was inadequate. In any event, if not already ...


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