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Ortiz v. Case

United States District Court, W.D. New York

June 23, 2017

JOSUE ORTIZ, Plaintiff,
KENNETH F. CASE, et al., Defendants.



         Before the Court is plaintiff's motion to compel production (Docket No. 32[1]), essentially based upon the Order of Erie County Judge Thomas Franczyk unsealing certain otherwise confidential prosecution documents from the investigation of the murders of Nelson and Miguel and Camacho (id., Ex. C). An identical motion was filed in Ortiz v. Wagstaff, , Case No. 16CV321 (Wagstaff, Docket No. 26). 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. 30, 31, 33). Defendants duly filed their respective responses in this case (Docket No. 34). Following argument of these motions in both cases decision was reserved (Docket No. 35). But, as noted by defense counsel in Wagstaff during oral argument, the cases are separate and defendants in each case are in different postures; hence, this Court enters separate Orders in each case for the respective motions.


         This is the action against officials[2] in the Erie County District Attorney's office for the prosecution of plaintiff for the murders of Nelson and Miguel Camacho. Both this case and Wagstaff arise from plaintiff's conviction 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 Camacho brothers. 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 argues 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 (after the commencement of the federal prosecution described below) 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 later 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) admitting to discharging a firearm causing death, with a special finding that the victims were the Camacho brothers (id.). One of these three defendants has been sentenced (Montalvo, Docket No. 327, Judgment as to Efrain Hidalgo) and the remaining defendants await decisions relative to their respective sentencing (Montalvo, Docket Nos. 264-66, 277, 300, 329).

         Pursuant to Judge Richard 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 Nunchereno) of plaintiff's innocence due to the involvement of the Montalvo defendants by allowing release of federal Grand Jury minutes and materials. The second Order released a copy of the Grand Jury materials to plaintiff's criminal defense counsel, Mr. Nunchereno, In re May 2011 Grand Jury Impaneled May 6, 2011, Misc. No. 13MR17, Order of Mar. 7, 2013. A motion in state court to dismiss plaintiff's Indictment was granted in May 2015 (despite the Case defendants' initial opposition) and plaintiff commenced in this Court Case and Wagstaff the next year.

         In Camera

         The parties in both cases obtained an Order from Erie County Judge Thomas Franczyk 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.

         After a series of status conferences regarding production of the confidential information from the defendants (Docket Nos. 20, 24, 27, 30), this Court reviewed in camera the materials produced by the police defendants in Wagstaff. Presuming that the prosecution files in Case would be similar and that plaintiff's motion to compel is identical in both cases, this Court considered together production in both cases. The defendants in Wagstaff produced a privilege log of the in camera documents, 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.

         Defendants in Case, however, declined to produce their records for in camera inspection or production to plaintiff and awaited guidance either from the United States or this Court on releasing federal Grand Jury materials. They insisted upon some form of clearance to produce their files given the federal Grand Jury material they contained.

         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. 25), see Fed.R.Civ.P. 24; 6-24 Moore's Federal Practice-Civil § 24.23 (2017). Given these concerns, this Court will avoid inadvertent disclosure of material that should remain confidential. The in camera materials from Wagstaff, however, were not clearly delineated to show that they were federal Grand Jury materials or not.

         From the privilege log and the Wagstaff in camera items, most of the police investigative file post-date plaintiff's 2004 arrest and his 2006 guilty plea (see Case, Docket No. 1, Compl. ¶ 22; Wagstaff, Docket No. 1, Compl. ¶ 22). One document in the Wagstaff in camera materials is a synopsis of the police homicide investigation. According to this summary (hereinafter cited as “[summary]” and page number cited), 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], but that informant recanted the statement in 2011 [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 house [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 the Wagstaff in camera materials reveals a continuing investigation of the Camacho murders that occurred following plaintiff's conviction, following up leads first raised during the initial investigation of the Camacho murders and the overlapping investigation of the West Side gang interdiction. Many of the documents concern the gang interdiction investigation(s) and lead to evidence for the prosecution of Montalvo, Hidalgo, and Jonas.

         At the status conference of April 19, 2017 (Docket No. 27), parties (with an Assistant U.S. Attorney appearing as special friend of the Court) were instructed to work out the disputes from production of in camera materials and determine the confidential or highly sensitive materials involved, and whether plaintiff's present civil counsel somehow obtained the materials sought through plaintiff's now deceased criminal counsel. On May 10, 2017, the parties received a redacted version of the Government's transmittal letter of the federal Grand Jury materials to the Erie County District Attorney and to plaintiff's late criminal attorney (Docket No. 30). After further discussion about production of the sought materials, this Court gave plaintiff until May 24, 2017 (id.; see Docket No. 31), to formally move to compel. Plaintiff then filed the present motion to compel (Docket No. 32).

         Plaintiff's Motion to Compel

         In plaintiff's motion (filed simultaneously in both cases, cf. Wagstaff, Docket No. 26), plaintiff noted that the records in the state criminal action were sealed pursuant to state law (Docket No. 32, Pl. Atty. Affirm. ¶ 4) and plaintiff through counsel sought to unseal them, obtaining the Order from Judge Franczyk to unseal (id. ¶¶ 5-6, 7-8, 9). This procedure is the means for a federal civil rights litigant to obtain otherwise confidential prosecution files by first applying for unsealing in state court (Docket No. 32, Pl. Memo. at first, second unnumbered pages), see Townes v. New York City, No. CV-94-2595, 1996 U.S. Dist. LEXIS 20220, at *29 (E.D.N.Y. Apr. 1, 1996), and therefore Judge Franczyk's Order is enforceable in this Court (id. at second unnumbered page). Following the January 19, 2017, status conference (Docket No. 20; see Docket No. 32, Pl. Atty. Affirm. ¶ 10, Ex. E), plaintiff wrote to have defendants either produce the unsealed confidential materials or provide them to this Court for in camera inspection (Docket No. 32, Pl. Atty. Affirm. ¶ 11, Ex. E), but (without objection) no such production or provision of the documents for in camera inspection occurred (id. ΒΆ 12). A further status conference occurred (Docket Nos. 22, 24, ...

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