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United States v. Wilson

United States District Court, W.D. New York

April 24, 2017

THE UNITED STATES OF AMERICA
v.
GREGORY WILSON, et al., Defendants.

          DECISION AND ORDER

          MICHAEL J. ROEMER UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         On March 16, 2016, a second superseding indictment (the “Indictment”) was filed charging sixteen members of the Kingsmen Motorcycle Club (“KMC”) with various crimes including racketeering conspiracy, drug trafficking, firearms offenses, Hobbs Act robbery, assault, perjury, obstruction of justice, attempted murder in aid of racketeering and murder in aid of racketeering. (Dkt. No. 33). The Indictment alleges, inter alia, that defendants distributed cocaine, marijuana, and other controlled substances, maintained various premises for drug distribution, sold untaxed cigarettes for a profit, and possessed firearms and ammunition for unlawful purposes. With respect to the racketeering conspiracy, the Indictment alleges that purposes of the enterprise included the distribution of controlled substances as well as maintaining premises for the use and distribution of controlled substances, the sale of firearms, the sale of cigarettes and alcohol, the promotion of prostitution and other criminal activities. It is alleged that another purpose of the enterprise was to protect and preserve KMC's power through violence, threats of violence, intimidation, assaults and murder. The murder charges relate to the shooting deaths of Paul Maue and Daniel Szymanski on September 6, 2014.

         This case was initially referred by the presiding judge, the Honorable Elizabeth A. Wolford, to this Court, pursuant to 28 U.S.C. §636(b)(1), to determine all pretrial nondispositive matters and to issue a report and recommendation on all dispositive motions. (Dkt. No. 35). Defendants then filed extensive pretrial motions. On January 5, 2017, the Court held a status conference with counsel to discuss various issues, including briefing schedules as to the pending motions and the scheduling of supression hearings.[1]Counsel was informed, at that time, that Judge Wolford and Judge Roemer would divide the handling of motions between themselves in order to expedite the pretrial portion of the case. (Dkt. No. 436). Judge Wolford is to decide, in the first instance, all motions to dismiss, motions for a change of venue, motions for severance and motions for a bill of particulars. (Dkt. 436). Judge Roemer is to decide all remaining non-dispositive discovery motions, and issue a report and recommendation as to all suppression motions. Id.

         INSTANT MOTIONS AND JOINDER

         Presently before the Court are non-dispositive discovery motions filed by defendants Pirk, Enix, Scanlon, Olejniczak, Osbourne, Stachasczyck, Wood, McIndoo, Williams, and Caruso.[2] The Government filed responses to the motions on January 20, 2017 and replies were filed on February 3, 2017. Oral argument was held before this Court on March 17, 2017. On March 22, 2017, defendant Pirk filed a supplemental discovery request related to Brady materials. The Government responded on March 31, 2017, at which time the Court considered these matters submitted.

         The Court notes initially that each defendant has moved to join in the discovery motions made by his co-defendants. The Government opposes joinder on the basis that they have not been given sufficient notice. The vast majority of the discovery issues raised herein apply to all defendants, and defendants have made numerous overlapping requests. The Court has thoroughly reviewed the papers submitted in this matter and finds that the Government has had an opportunity to substantively respond to all of the arguments made by defendants, and that joinder would not be prejudicial to the Government. The request for joinder is granted with the further directive and findings that the decisions made by this Court as to each defendant's motions shall also be deemed a finding and order as to all other defendants in this case, to the extent relevant. Therefore, in the discussion below defendants Pirk, Enix, Caruso, Williams, Olejniczak, Wood, Scanlon, Stacharczyck, Osbourne, and McIndoo will be referred to collectively as “defendants.” In the event that an issue or motion applies only to one or more specific defendants, the defendant or defendants will be expressly named.

         DISCUSSION

         Rule 16 Requests

         Defendants move for discovery and inspection pursuant to Rule 16 of the Federal Rules of Criminal Procedure, which requires that the government disclose evidence and information upon request of the defendant. While Rule 16 was intended to provide for liberal discovery, a defendant is not entitled to discovery of “the entirety of the government's case against him.” United States v. Percevault, 490 F.2d 126, 130 (2d Cir. 1974). Rule 16 provides that a defendant is entitled to the following: (1) a defendant's written, recorded or oral statements in the possession of the government; (2) the defendant's prior record; (3) documents, objects, books, papers, photographs, etc. that will be used during the government's case-in chief; (4) reports of examinations or tests; (5) and information about expert witnesses in accordance with Federal Rules of Evidence 702, 703 and 705. See Fed. R. Crim. P. 16(a)(1). Rule 16 specifically exempts from disclosure “reports, memorandum, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.” See Fed. R. Crim. P. 16(a)(2).

         Here, the Government indicates that it has and will continue to comply with the requirements of Rule 16. Specifically, the Government provided defendants with comprehensive voluntary discovery including surveillance reports, search warrant photos, search warrants and returns, laboratory reports, FBI 302's relating to surveillance and arrest of defendants, police reports, transcripts, photographs of narcotics purchases, statements of co-defendants, redacted witness statements, photo array identifications, crime scene photos and reports, firearms and ballistic reports, Facebook photos, and audio recordings of jail calls. The Government has also provided items and documents obtained as a result of searches of eight KMC clubhouses, phone records and analyses, historical cell site mapping, documents and forensic reports related to the investigations of the homicides of Maue and Szymanski, and video surveillance footage. The Government has provided pen register data, grand jury transcripts, KMC meeting minutes and by-laws, search results for electronic devices as well as materials found in connection with the search and arrest of various defendants. The Government has further provided redacted victim medical reports, police officer notes, reports from medical examiners, DNA reports, consensual recordings, and police body camera footage. The Government states that as it identifies any other evidence that falls under Rule 16, it will be provided to defendants. With respect to scientific tests and reports pursuant to Rule 16(a)(1)(F), the Government states that it provided forensic laboratory reports of controlled substances, firearms, ammunition, casings and DNA. The Government indicated both in its written submissions and during oral argument that to the extent it is still conducting tests or examinations on certain items, those reports or results will be produced when completed.

         In addition to the general Rule 16 demands made by all defendants, defendant McIndoo requests the Government provide: (1) an inventory of all matter in its possession which is in any way relevant to the instant charges; (2) a list of what materials, within that matter, have not been disclosed; and (3) an explanation as to why those materials are not subject to disclosure. The Federal Rules of Criminal Procedure do not entitle defendants to this type of inventory. Further, there is no evidence here to suggest that the Government is withholding discoverable information, has failed to comply with the rules of discovery in general, or is otherwise acting in bad faith. If defendants become aware of such evidence, they may bring it to the attention of the Court.

         Based upon the representations made by the Government including that it will continue to provide discoverable material and evidence as it becomes available, the Court finds that it is in compliance with Rule 16. The Court therefore denies defendants' Rule 16 motions as moot. The Government is reminded that its disclosure obligations continue up through and during trial. See Fed. R. Crim. P. 16(c).

         Expert Disclosures

         Defendants move for expert disclosure. The Government responds that, in accordance with Rule 16, Federal Rules of Evidence 702, 703, and 705, and the District Court's pretrial order, it will disclose the names of potential expert witnesses, the contents of their reports, a list of their credentials and qualifications, the methods used to support their opinion and a summary of their anticipated testimony. In light of these representations, defendants' motion with respect to expert testimony is denied as moot with the caveat that the Government is expected to comply with all requirements in Rule 16, the Federal Rules of Evidence, and Judge Wolford's pretrial order as they apply to expert testimony.

         Rule 12

         Defendants move, pursuant to Federal Rule of Criminal Procedure 12(b)(4)(B), for notice of the Government's intent to use, in their case-in-chief at trial, any evidence that defendants may be entitled to pursuant to Rule 16. The Government has noticed defendants that it intends to use, during its case-in-chief, all items, information or documents that defendants have been provided or made aware of. Defendants' Rule 12(b)(4)(B) motion is denied as moot, and the Government should continue to comply with Rule 12 if and when new evidence becomes available and is anticipated to be used at trial.

         Witness Statements

         Defendants move for the immediate disclosure of witness statements. Their requests essentially encompass all statements by witnesses regarding this case and the conduct alleged, regardless of whether that individual will be testifying at trial. The Government objects to providing the statements of any non-testifying witnesses and indicates that it will comply with its standard practice of disclosing prior statements of testifying witnesses in advance of trial.

         There is no obligation that the Government produce the statements of individuals who are not testifying at trial. See United States v. Rigas, 583 F.3d 108, 125-26 (2d Cir. 2009). To the extent that defendants are requesting statements of non-testifying witnesses, their motion is denied.[3]

         With regard to witnesses who will provide testimony at trial, Section 3500 of Title 18 of the United States Code requires that the government, on motion of defendant, disclose a government witness's prior statements that are in the government's possession and relate to the subject matter of the witness's direct testimony (“3500 material”). See also Jencks v. United States, 353 U.S. 657 (1957); Fed. R. Crim. P. 26.2 (procedure for producing a witness statement). A witness statement is defined as: (1) a written statement by a witness that is signed or otherwise adopted or approved by the witness; (2) a substantially verbatim recording or transcription of a witness's oral statement; or (3) any statement however taken or recorded made by the witness to the grand jury. 18 U.S.C. 3500(e). Statements are not required to be produced, by law, until after the witness has testified on direct examination. See 18 U.S.C. §3500(a); Fed. R. Crim. P 26.2(a).

         Here, the Government has indicated that, prior to trial and in accordance with the District Judge's pretrial order, it will provide a witness list and a summary of each witness's anticipated testimony. The Government will also provide 3500 material as to each witness including FBI 302's, other law enforcement reports and grand jury transcripts.[4] The Government also intends to disclose, at that time, witness impeachment information such as criminal histories, plea agreements, cooperation agreements, proffer agreements and any other related material or documents. During oral argument, the Government indicated that it would work with defense counsel to formulate a protective order, and would then begin disclosing 3500 material expeditiously and well in advance of trial. Therefore, defendants' motion for statements of trial witnesses is denied as moot. The Government is encouraged to begin providing 3500 material as soon as practicable, in order to prevent delays at or immediately prior to trial.

         Brady and Giglio Material

         Defendants move for immediate disclosure of exculpatory materials under Brady and Giglio. The Government responds that it has complied with its obligation to provide exculpatory materials to defendants, and to the extent that additional exculpatory materials become known to the Government, that information will be disclosed in advance of trial and in sufficient time for defendants to make effective use of the information.

         The Government has an obligation to disclose exculpatory material, or material favorable to an accused as to either guilt or punishment, even when no affirmative request has been made. Brady v. Maryland, 373 U.S. 83, 87 (1963). Material “favorable to an accused” includes not only evidence that affirmatively tends to exculpate the defendant, but also information that impeaches the credibility of Government witnesses. See Giglio v. United States, 405 U.S. 150, 154-55 (1972). The test for materiality is whether “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). Evidence may be material for Brady purposes even if it is not admissible, as long as it could lead to the discovery of admissible evidence. United States v. Gill, 297 F.3d 93, 104 (2d Cir. 2002).

         The Second Circuit has qualified that “the purpose of the Brady rule is not to provide a defendant with complete disclosure of all evidence in the government's file which might conceivably assist him in the preparation of his defense, but to assure that he will not be denied access to exculpatory evidence known to the government but unknown to him.” United States v. Ruggerio, 472 F.2d 599 (2d Cir. 1973); United States v. Sessa, 711 F.3d 316, 322 (2d Cir. 2013) (“there is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case”). Importantly, it has also been recognized that information is not exculpatory merely because it is not affirmatively incriminating. United States v. Scarpa, 913 F.2d 993, 1010-11 (2d Cir. 1990). Indeed, Brady does not create an “open file” policy or give defendants the right to search through government files. Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987) (“Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention, the prosecutors decision on disclosure is final.”) There is no express timetable for disclosure of Brady material, however it must be disclosed in time for defendants to make effective use of it at trial. Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001).

         Defendants here are requesting extensive information and materials that reach beyond the purview of Brady. For example, defendants seek, inter alia, information regarding KMC members who were not charged in the Indictment, all documents and information in the Government's possession where KMC is not referred to as a “one percent club”, the mention or lack of mention of defendants during the Government's previous investigation of the Chosen Few Motorcycle Club (the “Chosen Few”), and any information that Maue and Szymanski did not intend to “jump patch”.[5] The Government does not have an obligation to produce this material. These examples, and defendants' other similar requests, consist of information that defendants already know or have access to, is publically available, or is not exculpatory as defined by Brady and the relevant case law. Indeed, information regarding uncharged members, references to KMC not being a one percent club, and the mention or lack of mention of defendants during the Chosen Few investigation may not be affirmatively ...


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