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Ortiz v. Wagstaff

United States District Court, W.D. New York

June 23, 2017

JOSUE ORTIZ, Plaintiff,
v.
RICHARD WAGSTAFF, Defendants.

          ORDER

          HON. HUGH B. SCOTT UNITED STATES MAGISTRATE JUDGE.

         Before 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. 26[1]), 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).

         The 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, 2013.

         This 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.).

         Plaintiff 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.

         BACKGROUND

         This is 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.

         In 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.

         Around 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).

         Pursuant 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.

         In Camera

         The 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.

         This 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.

         The 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 materials.

         This 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.

         After a 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).

         A 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 gang ...


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