United States District Court, W.D. New York
HUGH B. SCOTT UNITED STATES MAGISTRATE JUDGE.
this Court is plaintiff's attempt to obtain from the
Buffalo Police Department (Ortiz v. Wagstaff, , Case
No. 16CV321, hereinafter “Wagstaff”) and
the Erie County District Attorney's (Ortiz v.
Case, , Case No. 16CV322, hereinafter
“Case”) files of the investigation and
prosecution of his state homicide case and the investigation
of two homicides. Presently before this Court in this action
is plaintiff's motion to compel (Docket No.
essentially based upon the Order of Erie County Court Judge
Thomas Franczyk (e.g., Docket No. 8, Defs. Atty.
Decl. ¶ 7, Exs. A, E). An identical motion was filed in
Case (Case, Docket No. 32). These motions
were briefed and argued together, with defendants'
respective responses due by May 31, 2017, and argument held
on June 7, 2017 (Docket Nos. 24-25, 27, 29). Defendants duly
filed their respective responses (Docket No. 28). On June 7,
2017, the motion was deemed submitted (Docket No. 29).
defense in Wagstaff produced for in camera
inspection the police department's file (with privilege
log), raising several privilege arguments against full
disclosure to plaintiff. The defense in Case,
however, declined to produce the prosecution file until they
had assurances from the United States Attorney's office
that they could produce the items without avoiding
inadvertent disclosure of federal Grand Jury proceedings or
violation of the Orders of Judge Richard Arcara, In re
May 2011 Grand Jury Impaneled May 6, 2011, Misc. No.
13MR17, Order of Nov. 8, 2012; id., Order of Mar. 7,
Court requested the view of the United States Attorney about
the propriety of disclosing these materials and set a status
conference for April 19, 2017 (Wagstaff, Docket No.
20; Case, Docket No. 25), see Fed.R.Civ.P.
24; 6-24 Moore's Federal Practice-Civil §
24.23 (2017). Assistant U.S. Attorney Michael Cerrone replied
in Case (Case, Docket No. 26) that, absent
a motion to compel from plaintiff specifying which Grand Jury
material was being sought and the grounds for the request,
the Government could not respond, reinforcing secrecy of
Grand Jury proceedings (id.).
then filed the present motion to compel (Docket No. 26) in
both actions (see Case, Docket No. 32). These
motions were briefed and argued together, with
defendants' respective responses due by May 31, 2017, and
argument on June 7, 2017 (Docket Nos. 25, 29). Defendants
duly filed their respective responses (Docket No. 28). As
noted by the Wagstaff defense counsel during oral
argument, these cases are separate and the defendants in each
are in different postures; hence this Court is entering
separate Orders in each case for the respective motions.
an action against members of the Buffalo Police Department
responsible for investigation of the murders of Nelson and
Miguel Camacho and for the arrest and prosecution of
plaintiff for those offenses. Both this case and
Case arise from plaintiff's conviction for and
subsequent exoneration from the Camacho murders, with
plaintiff alleging wrongful conviction and imprisonment, as
well as state law claims for malicious prosecution.
November 2004, plaintiff was arrested, tried and convicted of
the murders of the Camachos. Plaintiff in Wagstaff
alleges that defendants failed and refused to accept proof
that exonerated plaintiff (Wagstaff, Docket No. 1,
Compl. ¶ 51), that they were negligent in failing to
investigate all leads (id. ¶ 53). Similarly, in
Case, plaintiff alleges that the then-District
Attorney Frank Sedita, III, failed to accept proof that
plaintiff was wrongfully convicted. Plaintiff concludes that
this willful refusal led plaintiff to be incarcerated for ten
years (e.g., Case, Docket No. 1, Compl.
¶ 54), including the period from November 2012 (with the
commencement of the federal prosecution) until his
exoneration in May 2015.
November 2012, the Federal Bureau of Investigation and the
U.S. Attorney's office conducted an investigation of the
10th and 7th Street gangs, learning
that three other men were responsible for the Camacho
murders, see United States v. Montalvo, , No.
11CR366 (hereinafter “Montalvo”), Docket
No. 68, Superseding Indict. In Montalvo, defendants
Misael Montalvo, Efrain Hidalgo, and Brandon Jonas eventually
were charged with discharging a firearm causing the deaths of
Nelson and Miguel Camacho, Montalvo, supra,
Docket No. 68, Superseding Indict., Counts 2, 3, Special
Findings. Montalvo (Montalvo, Docket No. 249),
Hidalgo (Montalvo, Docket No. 239), and Jonas
(Montalvo, Docket No. 244) each entered guilty
pleas, with Hidalgo (Montalvo, minute entry, Feb.
26, 2015) and Jonas (Montalvo, minute entry Mar. 11,
2015) pleading guilty to Count 2 of the Superseding
Indictment (Montalvo, Docket No. 68) for discharging
a firearm causing death with special finding that the victims
were the Camacho brothers (id.). One of these three
defendants has been sentenced (Montalvo, Docket No.
327, Judgment upon Efrain Hidalgo) and the remaining
defendants await decisions relative to sentencing
(Montalvo, Docket Nos. 264-66, 277, 300, 329).
to Judge Arcara's Orders, In re May 2011 Grand Jury
Impaneled May 6, 2011, Misc. No. 13MR17, Order of Nov.
8, 2012; id., Order of Mar. 7, 2013, the Government
provided information (first to the Erie County District
Attorney and then to plaintiff's criminal counsel, the
late John Nuncherino) of plaintiff's innocence due to the
involvement of the Montalvo defendants by allowing
release of federal Grand Jury minutes and materials. A motion
in state court to dismiss plaintiff's Indictment was
granted in May 2015 (despite the Case
defendants' initial opposition) and plaintiff commenced
Case and Wagstaff the next year.
parties in both cases obtained an Order from Erie County
Judge Franczyk (e.g., Docket No. 28, Defs. Atty.
Decl. Ex. E) unsealing the prosecution and police department
files surrounding the Camacho brothers' murders for
release to defense counsel in these two cases. Counsel then
was to identify to this Court objections and privileges for
in camera review.
Court reviewed in camera the materials produced by
the police department defendants in Wagstaff. The
Wagstaff defendants produced a privilege log of the
in camera documents shown to this Court, asserting
privileges that the documents contained sensitive law
enforcement information that may create safety risks
regarding confidential informants and witnesses; documents
that may reveal police tactics and strategies for
investigations; some may have been obtained from or
describing confidential proffers; at least one document
possibly containing attorney work product. The privilege log
also asserted that some of the items were not relevant to
plaintiff's claims. Defendants contend, but did not
specifically identify, that at least some of these materials
were obtained from the Grand Jury (pursuant to Judge
Arcara's Orders) and that Judge Arcara's Orders
limited disclosure of these items, In re May 2011 Grand
Jury Impaneled May 6, 2011, Misc. No. 13MR17, Order of
Nov. 8, 2012; see Case, Docket No. 26. Those Orders
disclosed Grand Jury documents and transcripts to the Erie
County District Attorney and to in the investigation that led
to the Indictment in Montalvo.
parties in both cases obtained an Order from County Judge
Franczyk unsealing the prosecution and police department
files surrounding the Camacho brothers' murders for
release to defense counsel in these two cases. These counsel
then were to identify to this Court objections and privileges
for in camera review. Defendants in Case,
however, declined to produce their records for in
camera and awaited guidance either from the United
States or this Court on releasing federal Grand Jury
Court had invited input from the United States Attorney
(including possible limited intervention in these cases)
because of the unknowns in the in camera material)
(Docket No. 20). Given these concerns, this Court will avoid
inadvertent disclosure of material that should remain
confidential. The in camera materials reviewed to
date were not clearly delineated to show that they were Grand
Jury materials or not.
series of status conferences jointly held for both cases
regarding production of the confidential information from the
defendants (e.g., Wagstaff, Docket Nos. 14,
16, 19, 21, 24), this Court reviewed in camera the
materials produced by the police defendants in
Wagstaff. From the privilege log and the in
camera items, most of the file post-dates
plaintiff's 2004 arrest and his 2006 guilty plea
(see, e.g., Case, Docket No. 1,
Compl. ¶ 22). One document in the in camera
materials is a synopsis of the police homicide investigation
(hereinafter cited as “[summary]”). According to
this summary, in November 2004, the police interviewed a
witness who revealed the whereabouts of Hidalgo at the time
of the murders [summary at 10]. In 2005, an informant told a
detective that two other men murdered the Camachos, but the
police in 2008 could not identify the incident referenced
because the Camacho murders were cleared according to their
records [summary at 11-12]. In 2011, that informant recanted
the statement [summary at 14]. The summary notes a 2008
proffer made to the United States Attorney that alleged that
someone other than plaintiff committed these murders [summary
at 12]. In September 2009, a federal task force was
established (including the Buffalo Police Department) to
investigate gang activity in the Lower West Side, with
Hidalgo becoming known to the task force [id.]. In
June 2011, two officers met an informant who said they had
information regarding Hidalgo's role in the murders
[id.]. The summary also makes references to
correspondence received by the United States Attorney's
office relative to the investigation. On July 11, 2012,
plaintiff was interviewed by officers, but he generally
declined to answer questions [summary at 21]. In August 2012,
another source was interviewed and said that plaintiff's
apartment was being monitored and that on the night of the
murder did not show anyone leaving the unit [statement at
23]. Proffer materials and interviews identified as
confidential sources or work product included in the in
camera have internal redactions (but not consistently).
cursory review of this in camera material reveals a
continuing investigation that occurred following
plaintiff's conviction, following up leads first raised
during the initial investigation of the Camacho murders and
leads arising from the overlapping West Side gang
interdiction investigation. Many of the documents concern the