United States District Court, W.D. New York
DECISION AND ORDER
H. KENNETH SCHROEDER, Jr., Magistrate Judge.
This case was referred to the undersigned 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.
The defendant, Joseph Whitely ("the defendant"), is charged in a Superseding Indictment, along with a number of co-defendants, with having violated Title 18 U.S.C. § 1962(d) (Count 1); Title 21 U.S.C. § 846 (Count 24); and Title 18 U.S.C. §§ 924(c) and 2 (Count 25). Dkt. #87.
This Court has previously filed its Report, Recommendation and Order (Dkt. #379) with respect to defendant's motion wherein he sought to suppress statements allegedly made to agents on May 25, 2012 following his arrest. In addition, this Court has also previously filed its Report, Recommendation and Order with respect to the defendant's motion to dismiss Count One of the Superseding Indictment. Dkt. #388. Presently pending is defendant's omnibus motion wherein he seeks: discovery under Rules 16 and 12 of the Federal Rules of Criminal Procedure; a bill of particulars; disclosure of evidence pursuant to Rules 404(b), 608 and 609 of the Federal Rules of Evidence; "Brady Material;" disclosure of witness statements; motion for a conspiracy hearing; disclosure of informant identity; search of personnel files of government agent witnesses; preservation of evidence; joinder and leave to make further motions. Dkt. #225. The government has filed a response in opposition to the requests of the defendant, as well as a reciprocal request for discovery pursuant to Rule 16(b) of the Federal Rules of Criminal Procedure. Dkt. #238.
DISCUSSION AND ANALYSIS
Discovery Under Rules 16 and 12
Pursuant to Rule 16 of the Federal Rules of Criminal Procedure, the defendant seeks, the defendant's statements; statements of co-defendants; statements of "unindicted co-conspirators;" the defendant's prior criminal record; any documents or items which are material to preparing the defense, that the government intends to use in its case-in-chief or was obtained from the defendant; the results of any physical and/or scientific examinations, tests and/or experiments; and, the identities, qualifications and summary of testimony of all expert witnesses the government intends to call as witnesses. Dkt. #225, pp.10-12. Pursuant to Rule 12 of the Federal Rules of Criminal Procedure, the defendant seeks the following: intercepted communications; pen-register/trap and trace; search and seizure; identification; statements; and mobile tracking devices. Dkt. #225, pp.9-10.
In its response, the government states,
Since the date of the return of the Superseding Indictment, the United States has complied, and intends to continue to comply, with the requirements of Rule 16. To that end, the United States has provided comprehensive voluntary discovery, including surveillance reports, search warrant photos, search warrants, laboratory reports, FBI 302s relating to surveillance and arrest of the defendant and his co-defendants, Buffalo Police Department reports, New York State Police Reports, transcripts, photographs of narcotics purchases, statements of the co-defendants, redacted statements of some government witnesses, photo array identifications, numerous crime scene photos, crime scene reports, firearm reports, NIBIN ballistic reports, MYSPACE photos, audio and transcripts of jail recordings of co-defendants, search warrants and returns. Additionally, all physical evidence recovered in connection with this investigation is, and has been, available for inspection by the defendant's attorney.
Certain search warrant applications were ordered sealed until further order of United States Magistrate Judge H. Kenneth Schroeder, Jr., among others. The government submits that unsealing the search warrant applications at this early juncture would be premature, is unnecessary for the defendants to prepare a defense in light of the voluminous discovery provided, and would only serve as a means to potentially place cooperating witness(es) in jeopardy of reprisal.
As the government identifies any other evidence which falls within the scope of Rule 16, it will provide such evidence to defendants and their counsel. The government will continue to comply with its continuing duties to disclose set forth in Rule 16(c). Consistent with the defendant's request, (see Docket 225, p. 6), the government herein notifies the defendant that it intends to introduce all of this evidence at trial pursuant to Rule 12(b)(4). (Emphasis added.) Expert disclosures and expert summaries will be provided as expert witnesses who will testify at trial are identified by the government. It should be noted that a number of expert reports have already been provided.
Dkt. #238, pp.5-6. With respect to certain of the defendant's requests, specifically, those requests which the government asserts are outside the parameters of Rule 16, the government submits a separate response.
1. Defendant's Statements
In response to the defendant's request for the defendant's statements, the government states that it "believes it has disclosed the defendant's statements to law enforcement personnel during discovery pursuant to Fed. R. Crim. P. Rule 16(a)(1)(A)." Dkt. #238, p.6. Moreover, this Court has previously issued its Report, Recommendation and Order addressing the defendant's motion to suppress his statements. See Dkt. #379. Accordingly, based on the government's response and this Court's prior Report, Recommendation and Order issued following an evidentiary hearing, defendant's request for the disclosure of his statements is denied as moot.
2. Co-Defendant and Co-Conspirator Statements
With respect to the defendant's request for co-defendant and coconspirator statements, the government opposes this request stating that such request is beyond the scope of the definition of defendant's statements under Rule 16(a)(1)(A)-(B) and such statements are not subject to pre-trial disclosure. Dkt. #238, p.7. Rule 801(d)(2)(E) F.R.E. does not contain a required pretrial notice and therefore, there is no requirement on the part of the government to make any such disclosure of this type of evidence at this time. The government does, however, agree that it will proffer evidence in support of the admission of out-of-court co-conspirator statements at the time designated by the trial court. As a result, defendant's request in this regard is denied.
3. Grand Jury Transcripts
Insofar as the defendant has joined in the motions of his co-defendants, defendant Whitely also seeks the disclosure of Grand Jury transcripts. "A review of grand jury minutes is rarely permitted without factual allegations of government misconduct." United States v. Torres, 901 F.2d 205, 233 (2d Cir. 1990). The defendant "has the burden of showing that the government's use of the grand jury was improper." United States v. Salameh, 152 F.3d 88, 109-110 (2d Cir. 1998); see also United States v. Leung, 40 F.3d 577 (2d Cir. 1994). As the United States Supreme Court has stated:
We begin by reiterating that the law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority. See United States v. Mechanik, 475 U.S. 66, 75, 89 L.Ed.2d 50, 106 S.Ct. 938 (1986) (O'Connor, J., concurring in judgment) ("The grand jury proceeding is accorded a presumption of regularity, which generally may be dispelled only upon particularized proof of irregularities in the grand jury process"). See also Hamling v. United States, 418 U.S. 87, 139, n 23, 41 L.Ed.2d 590, 94 S.Ct. 2887 (1974); United States v. Johnson, supra, at 512-513, 87 L.Ed. 1546, 63 S.Ct. 1233.
United States v. R. Enterprises, Inc.,
498 U.S. 292, 300-301 (1991). The defendant has failed to overcome the presumption of regularity applicable to grand jury proceedings and therefore, his motion seeking a ...