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United States v. Coronado

United States District Court, W.D. New York

February 7, 2017

United States of America
John W. Coronado, Jr., Defendant.




         On September 13, 2016, defendant John Coronado Jr. (“Coronado”) filed a motion to suppress statements that he made after his arrest on December 22, 2014. (Dkt. No. 321.) Among other issues raised in the motion, Coronado has argued that he “was represented by an attorney and should not have been subjected to custodial interrogation under the totality of the circumstances without notice to his counsel.” (Id. at 3.) The motion came with an affidavit from attorney Kevin Spitler, who noted that he was appointed to represent Coronado in late February 2012 in connection with a grand jury subpoena served around that time, and that “my representation of Coronado did not cease, and I have remained as his attorney since my assignment and up to the present date.” (Id. at 14.)

         On November 8, 2016, the Court issued a Decision and Order that set up a suppression hearing for Coronado's motion. (Dkt. No. 343.) With respect to the duration of Mr. Spitler's 2012 appointment, the Court explained that “when Magistrate Judge Schroeder covered arraignment for this Court on December 23, 2014, he re-qualified Coronado for counsel and assigned Assistant Federal Public Defender John Humann. Magistrate Judge Schroeder presumably would not have conducted a second qualification and assignment if either he or the parties at the time had understood the February 14, 2012 assignment not to have expired.” (Id. at 2.) Nonetheless, the Court ordered a suppression hearing for two reasons. Mr. Spitler's affidavit read as if he and Coronado maintained active communication about the case well beyond 2012 and through the time of Coronado's custodial interview. Coronado gave credence to the possibility of active communication when, at a status conference on October 18, 2016, he asserted that he had numerous conversations with Mr. Spitler after March 2012.

         The suppression hearing so far has run in parts on December 5, 2016, December 21, 2016, and January 17, 2017. (Dkt. Nos. 360, 373, 383.) The hearing currently is scheduled to resume on February 13, 2017. As part of his hearing preparation, Coronado has filed a number of motions or memoranda for pre-hearing discovery. (Dkt. Nos. 346, 349, 354, 369, 372, 382.) Coronado has stated that he could not continue with the hearing until he received the Government's responses to his motions. (Dkt. No. 382 at 2.) The Government now has responded (Dkt. No. 389), but Coronado's statement about continuing with the hearing implies that he would want a ruling from the Court if the Government objected to any of the discovery demands. To keep the hearing on track for February 13, the Court now will examine each of Coronado's motions.


         A. Motion for Discovery of November 22, 2016 (Dkt. No. 346)

         Coronado makes several requests in this motion. Coronado seeks the transcript of the arraignment that Magistrate Judge Schroeder held on December 23, 2014. That transcript now has been filed at Docket No. 364. Coronado seeks certain statements made and documents signed by him; the Court accepts the Government's representation that these materials already have been provided.

         Coronado also wants the Government “to produce for examination any statement of each of these witnesses [i.e., FBI Special Agent Sakovics, AUSA Frank Pimentel, and former AUSA Robert Moscati] that is in their possession that relates to the issues presented. In order to avoid a recess to examine any such statements, pursuant to Rule 26.2(d) it is respectfully requested that these prior statements be produced prior to the hearing.” (Dkt. No. 346 at 3.) The Government responds that Coronado should not receive any information “other than the statements made and documents signed by the defendant in that regard (which have been provided). All other information requested is either not discoverable under Rule 16, or attorney work product.” (Dkt. No. 389 at 2-3.)

         A review of Rule 26.2 of the Federal Rules of Criminal Procedure (“FRCP”) is warranted.[1]The rule begins with language that assumes that it would be invoked at trial. “After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the government or the defendant and the defendant's attorney to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness's testimony.” FRCP 26.2(a). Rule 26.2 has to be read, for Coronado's purposes, in conjunction with Rule 12(h), which states that “Rule 26.2 applies at a suppression hearing under Rule 12(b)(3)(C). At a suppression hearing, a law enforcement officer is considered a government witness.” FRCP 12(h); see also United States v. Gonzalez, No. CRIM.A.97CR61RSP/GJD, 1998 WL 146407, at *2 (N.D.N.Y. Mar. 24, 1998). In turn, Assistant United States Attorneys are considered government agents for purposes of production under FRCP 26.2 since the same principle applies to the rule's statutory counterpart, 18 U.S.C. § 3500. See United States v. Aviles, 315 F.2d 186, 191 (2d Cir. 1963) (citations omitted). Subdivision (h) of FRCP 12 was added in 1983, [2] and the Advisory Committee on the Federal Rules of Criminal Procedure explained the significance of the change in a note:

This change will enhance the accuracy of the factual determinations made in the context of pretrial suppression hearings. As noted in United States v. Sebastian, [497 F.2d 1267 (2nd Cir. 1974)], it can be argued most persuasively that the case for pre-trial disclosure is strongest in the framework of a suppression hearing. Since findings at such a hearing as to admissibility of challenged evidence will often determine the result at trial and, at least in the case of fourth amendment suppression motions, cannot be relitigated later before the trier of fact, pre-trial production of the statements of witnesses would aid defense counsel's impeachment efforts at perhaps the most crucial point in the case. * * * [A] government witness at the suppression hearing may not appear at trial so that defendants could never test his credibility with the benefits of Jencks Act material.
The latter statement is certainly correct, for not infrequently a police officer who must testify on a motion to suppress as to the circumstances of an arrest or search will not be called at trial because he has no information necessary to the determination of defendant's guilt. See, e.g., United States v. Spagnuolo, [515 F.2d 818 (9th Cir. 1975)] (dissent notes that “under the prosecution's own admission, it did not intend to produce at trial the witnesses called at the pre-trial suppression hearing”). Moreover, even if that person did testify at the trial, if that testimony went to a different subject matter, then under rule 26.2(c) only portions of prior statements covering the same subject matter need be produced, and thus portions which might contradict the suppression hearing testimony would not be revealed. Thus, while it may be true, as declared in United States v. Montos, [421 F.2d 215 (5th Cir. 1970)], that “due process does not require premature production at pre-trial hearings on motions to suppress of statements ultimately subject to discovery under the Jencks Act, ” the fact of the matter is that those statements-or, the essential portions thereof-are not necessarily subject to later discovery.
Moreover, it is not correct to assume that somehow the problem can be solved by leaving the suppression issue “open” in some fashion for resolution once the trial is under way, at which time the prior statements will be produced. In United States v. Spagnuolo, supra, the court responded to the defendant's dilemma of inaccessible prior statements by saying that the suppression motion could simply be deferred until trial. But, under the current version of rule 12 this is not possible; subdivision (b) declares that motions to suppress “must” be made before trial, and subdivision (e) [now (d)] says such motions cannot be deferred for determination at trial “if a party's right to appeal is adversely affected, ” which surely is the case as to suppression motions. As for the possibility of the trial judge reconsidering the motion to suppress on the basis of prior statements produced at trial and casting doubt on the credibility of a suppression hearing witness, it is not a desirable or adequate solution. For one thing, as already noted, there is no assurance that the prior statements will be forthcoming. Even if they are, it is not efficient to delay the continuation of the trial to undertake a reconsideration of matters which could have been resolved in advance of trial had the critical facts then been available. Furthermore, if such reconsideration is regularly to be expected of the trial judge, then this would give rise on appeal to unnecessary issues of the kind which confronted the court in United States v. Montos, supra-whether the trial judge was obligated either to conduct a new hearing or to make a new determination in light of the new evidence.

FRCP 12(h) Advisory Committee's note to 1983 amendment. One other procedural issue needs a brief comment. Rule 26.2, on its face, is limited to “a party who did not call the witness.” Technically, Coronado is the party calling the three witnesses in question. Again, however, Rule 26.2 primarily contemplates a trial, not a suppression hearing. The Court's experience provides that at suppression hearings, defendants sometimes call family members or other minor witnesses for ancillary testimony, but the primary witnesses always are law enforcement agents. Given that Rule 12(h) already adapts Rule 26.2 to suppression hearings, defendants would face unfair prejudice in not being able to use Rule 26.2 if the Court did not make one more adaptation to deem law ...

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