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United States v. Myers

United States District Court, W.D. New York

November 16, 2017

UNITED STATES OF AMERICA,
v.
NATHANIEL MYERS, Defendant.

          DECISION AND ORDER

          H. KENNETH SCHROEDER, JR. UNITED STATES MAGISTRATE JUDGE

         This case was referred to the undersigned by the Hon. Frank P. Geraci, Jr., in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report on dispositive motions.

         PRELIMINARY STATEMENT

         The defendant, Nathaniel Myers (“the defendant”), along with a number of co-defendants, is charged with having violated Title 21 U.S.C. §§ 846 and 856(a)(1). Dkt. #1. He has filed an omnibus discovery motion wherein he seeks (1) “discovery of any items or information to which [he] is entitled” pursuant to Rule 16(a)(1)(A)(B)(C) & (D) of the Federal Rules of Criminal Procedure; (2) “documents and tangible objects;” (3) “intercepted communications;” (4) evidence relating to the “identification” of the defendant; (5) “disclosure of witnesses identities;” (6) “disclosure of informant's file;” (7) “grand jury transcripts;” (8) a “bill of particulars;” (9) Brady, Giglio and Jencks materials; (10) “disclosure of evidence pursuant to Rules 404(b), 608 and 609 of the Federal Rules of Evidence;” and (11) “preservation of rough notes and other evidence.” The defendant also joins in the motions filed by the co-defendants herein. He also seeks to reserve his right to “ask the court to hold an audibility hearing to determine whether recordings that the government seeks to introduce at trial are audible.” Lastly, he seeks permission “to voir dire government experts outside the presence of the jury.” Dkt. #152.

         The government has filed its opposition to the defendant's requests and has made reciprocal requests for discovery pursuant to Rule 16(b) of the Fed. R. Crim. P. Dkt. #161, ¶ 2.

         DISCUSSION AND ANALYSIS

         1. Rule 16 Fed. R. Crim. P. Discovery

         Based on the government's representation that “it [has] provided all material presently within its possession that is within the purview of Rule 16, ” the defendant's request is denied as being moot. See Dkt. #161, ¶ 2.

         2. Defendant's Demand for “Documents and Tangible Objects”

         Based on the government's representation that it “has made available all tangible objects obtained pursuant to search warrants or otherwise, the defendant's request is denied as moot. See Dkt. #161, ¶ 4.

         3. Defendant's Request Regarding “Intercepted Communications”

         The defendant seeks “materials [that] are necessary to challenge the necessity of the wiretaps and whether or not there are any Franks issues or fruit of the poisonous tree issues as well as whether or not minimization and sealing requirements were properly followed.” Dkt #152, ¶ 28. The government has responded that it has provided the wire interception applications, affidavits, orders filed and intercepted wire communications and draft transcripts of these communications to the defendant. See Dkt. #161-1, Exhibits A and B attached thereto. As a result, the defendant's request is denied as being moot.

         4. Defendant's Request for Evidence Relating to the Identification of the Defendant

         The defendant has not established that any form of identification procedure was utilized by the government for purposes of making an “identification” of the defendant. Although the government has not directly responded to this request of the defendant, it is this Court's understanding that no such identification procedure was utilized by the government for purposes of making an identification of the defendant. Therefore, this request of the defendant is denied as being moot.

         5. Defendant's Request for Disclosure of Witness Identities

         The defendant has moved for disclosure of the identity of witnesses who will testify at trial, but has offered no “particularized showing of need” for same. See United States v. Hennings, No. 95-CR-0010A, 1997 WL 714250, at *13. Fed.R.Crim. P. 16 does not require such disclosure, and because there has been no showing of need, the motion is denied. See id.; United States v. Bejasa, 904 F.2d 137, 139 (2d Cir.), cert. denied, 498 U.S. 921 (1990); United States v. Johnson, No. 92-CR-39A, 1994 WL 805243 (W.D.N.Y. May 26, 1995), aff'd, 108 F.3d 1370 (1997); United States v. Pastor, 419 F.Supp. 1318, 1320 (S.D.N.Y. 1975).

         6. Defendant's Request for Disclosure of Informant's File

         The defendant requests that the government be directed to identify all informants on whom the government has relied or will rely in any way in its investigation and/or prosecution of this case and disclosure of information received from informants. However, the defendant has failed to sufficiently state a basis for requiring the disclosure of this information or “that the testimony of the informant would [be] of even marginal value to the defendant's case.” As a result, the holding of the Court of Appeals for the Second Circuit in United ...


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