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Case 1:15-cr-00157-RJA-HKS

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

THE UNITED STATES OF AMERICA,

v.

COREY KRUG,

Defendant.

15-CR-157-A

GOVERNMENT'S RESPONSE TO DEFENDANT= S PRETRIAL MOTIONS AND GOVERNMENT= S CROSS MOTION FOR DISCOVERY

THE UNITED STATES OF AMERICA, by and through its attorneys, William J.

Hochul, Jr., United States Attorney for the Western District of New York, and John E.

Rogowski, Assistant United States Attorney, hereby responds to the pretrial motions of

defendant COREY KRUG (Dk. # 14 filed December 7, 2015) for various forms of relief.

PRELIMINARY STATEMENT

The defendant, employed as a police officer by the City of Buffalo, is charged in a

four-count Superseding Indictment with violations of Title 18, United States Code, Sections

242 and 1519.

Counts 1, 3, and 4 allege violations of Section 242 in that the defendant,

while acting under color of law, deprived certain individuals of their constitutional rights to

be free from the use of unreasonable and excessive force and to due process, and in doing so

caused physical injuries to those individuals.

Count 2 alleges that the defendant knowingly

concealed, covered up, and falsified and made a false entry in a Buffalo Police Department

Use of Force Report P-1374, reflecting his actions in relation to the use of physical force

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described in Count 1 of Indictment, with the intent to impede, obstruct, and influence the

investigation and proper administration of a matter within the jurisdiction of a department

and agency of the United States.

The government submits this Memorandum in opposition to the defendants’ motions

and presents a cross motion for discovery.

For the reasons stated in this memorandum the

motions of the defendants have no merit and should be denied.

PROCEDURAL BACKGROUND

The defendant was first charged in a Criminal Complaint filed on August 12, 2015.

The complaint alleged a violation of Title 18, United States Code, Section 242, relating to

events which took place on November 27, 2014.

Thereafter, on August 27, 2014, a Grand

Jury returned a two-count Indictment which alleged violations of Title 18, United States

Code, Sections 242 and 1519, relating to events which took place on August 29, 2010.

Finally, on September 3, 2015, the same Grand Jury returned the Superseding Indictment

which is now before the Court.

The Superseding Indict relates to the events of August 29,

2010 (Counts 1 and 2) that were the basis of the original Indictment; events of February 4,

2011 (Count 3); and the events of November 27, 2014 (Count 4) that were the basis of the

Criminal Complaint .

FACTUAL BACKGROUND

At all times relevant to the Indictment, the defendant was employed as a police officer

by the City of Buffalo, having been appointed to the force in July 2002.

2

At the time of the

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incidents alleged in the Superseding Indictment, the defendant was assigned to the Buffalo

Municipal Housing Authority Unit (“BMHAU”).

The officers assigned to the BMHAU

respond to calls throughout the City of Buffalo as needed.

Events of August 29, 2010 (Counts 1 and 2)

On August 29, 2010, at approximately 10:30 pm, BPD broadcast a radio call of a

possible domestic disturbance involving a male (tee shirt and shorts) waving a gun at a female

(white shirt and skirt) in the vicinity of 52 Langmeyer.

Several BPD police cars responded to

the call and proceeded to Langmeyer.

When the BPD officers arrived on the scene, M.W., a

male matching the description of the male described in the radio call, was standing in front of

46 Langmeyer conversing with a female.

At the time, M.W. was working two jobs (ECMC

and BryLin Hospitals), possessed a firearms license, and had no criminal record.

M.W.

legally possessed a gun which was concealed under his shirt.

One of the first BPD officers on the scene, Officer Melinda Jones, approached M.W.

with her gun drawn and yelling words to the effect that M.W. put his hands up in the air.

As

other BPD officers approached M.W., Officers Thomas Herbert and Joseph Paszkiewicz

grabbed M.W. and placed against a car.

Officer Herbert saw the gun on M.W. person and,

after announcing he saw the gun, he took possession of the gun.

M.W. was handcuffed.

At

some point during the encounter, KRUG struck M.W. in the head with his flashlight.

Some

of the officers on the scene observed KRUG strike M.W. and observed that Worthy was

bleeding.

At least two civilians observed KRUG strike M.W.

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KRUG and his partner, BPD Officer William Macy then took M.W. to ECMC where

M.W. received 3 staples in his scalp.

Worthy was charged with Criminal Possession of a

Weapon 2 nd , Menacing of a Police Officer, Menacing 2 nd , and Obstructing Governmental

Administration

2 nd .

The

presentation to a Grand Jury.

charges

were

dismissed

in

Buffalo

City

Court

for

The Grand Jury issued a no bill on February 5, 2011.

has a civil suit pending against the City of Buffalo.

direct

M.W.

KRUG filed a Use of Force Report P-1374 with the BPD.

However, KRUG claimed

on the form to only having made physical contact with M.F., and checked “no” in the

question asking if used an impact weapon to strike the individual.

Following the filing of a complaint by M.W with the BPD, BPD conducted a 50-h

hearing at which M.W. testified.

In addition, members of the BPD who were present at the

sight of M.W. incident also testified.

Events of February 4, 2011 (Count 3)

On February 4, 2011, at approximately 11:04 pm, BPD broadcast a radio call of a

suspicious person in the vicinity of 68 Bissell in the City of Buffalo.

Several police units

responded.

After the police units arrived and were located on Bissell avenue, D.R. was

walking north on Bissell, from Walden, towards his residence at 79 Bissell.

D.R. had

completed his work shift at a local steak shop.

D.R., who was listening to music with ear

buds, observed police cars in the area as he continued walking towards his residence.

After

observing two police cars pass by him, one car backed up and KRUG, the sole police officer

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in the car, called out to D.R.

KRUG then got out of the vehicle and approached D.R.

KRUG placed D.R. against the patrol car, patted him down, and found a diet pill on D.R.

KRUG then kicked D.R.’s legs out from under D.R. and D.R. fell to the ground.

While

D.R. was on the ground, the KRUG put his knee in D.R.’s chest and hit D.R. once with his

flashlight in the area of D.R.’s right eye which caused him to bleed.

(There is a scar).

Officer KRUG handcuffed D.R. and placed D.R. in the patrol car.

witnesses to the event.

There were no other

BPD Officer William Rezabek, KRUG’S partner who KRUG had dropped off a few

blocks away prior to Krug’s encounter with D.R., arrived on the scene of the encounter after

D.R. had been hand-cuffed and placed in the police vehicle.

KRUG told Officer Rezabek

that D.R. had been combative and that he, KRUG, had hit D.R. on the head.

KRUG and

Officer Rezabek transported D.R. downtown to police headquarters where D.R. was charged

with criminal offenses, processed and held overnight.

After D.R. was released the following

morning, he went to the emergency room for treatment.

receive any stiches.

He was given pain meds but did not

Despite admitting to having struck D.R. in the head, KRUG did not file a Use of

Force Report P-1374 with the BPD.

D.R. was charged with criminal possession of a

controlled substance and obstructing governmental administration.

The charges were

dismissed at the defendant’s first court appearance.

received a settlement.

D.R. filed a lawsuit against the city and

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Following the filing of a complaint by D.R. with the BPD, BPD conducted a 50-h

hearing at which D.R. testified.

Events of November 27, 2015 (Count 4)

November 27, 2015, was Thanksgiving Day.

The evening of the night before

Thanksgiving and the early morning hours of Thanksgiving Day is often referred to as the

“busiest party night of the year” in Buffalo.

downtown Buffalo’s entertainment district.

This is especially true in the Chippewa area of

Because of the high volume of bar customers in

the area, the Buffalo Police Department (“BPD”) employs officers from other districts to

patrol the entertainment district which is located in the “B” district.

Defendant Corey

KRUG was one of several BPD officers who opted to work that assignment.

In the early morning of November 27, a bar patron identified as “D.F.” was banished

from the nightclub “Indulge” following a scuffle with another patron.

also escorted out of Indulge.

Both individuals were with friends.

The other patron was

After exiting Indulge,

several individuals associated with both ejected patrons congregated on Chippewa Street in

the vicinity of Indulge.

Several BPD officers, including KRUG interacted with the

individuals, including D.F., and the crowd dispersed without further altercation after one

officer discharged pepper spray.

The event on the street was recorded by a video

photographer for the WKBW new department.

Shortly thereafter, the same video photographer recorded KRUG as KRUG walked at

fast pace east on Chippewa towards Pearl Street.

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As KRUG arrived at a parking lot at the

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northwest Corner of Chippewa and Pearl, he encountered D.F., who was leaning against a

vehicle with another individual nearby.

KRUG is then video and audio recorded grabbing

D.F., throwing D.F. against a car as D.F. is heard saying "I didn't do nothing." KRUG is

recorded pushing D.F. to the ground and placing one knee on D.F. chest. KRUG is seen

standing up as two other uniformed officers appeared to attempt to intervene. With the two

other officers next to KRUG, KRUG proceeded to strike D.F. four or five times with his

night stick as he was yelling at D.F. to "get the fuck up."

A third officer is recorded arriving next to KRUG and is heard telling KRUG to

"relax." The recording also captures one of the officers alerting KRUG that he was "on

fucking camera." The recording shows KRUG allowing D.F. to get back on his feet and

telling D.F. to "walk."

At no time during the recorded incident did D.F. appear to resist or

strike KRUG other than to use his arms to deflect KRUG'S strikes. KRUG did not arrest

D.F.

Despite clearly using his night stick to strike D.F., KRUG did not file a Use of Force

Report P-1374 with the BPD.

There were several BPD officers on the scene who witnessed portions of KRUG’s

encounter with D.F.

VOLUNTARY DISCOVERY

The government has provided the defendant with significant voluntary discovery.

The government provided a copy of the defendant=s personnel file which includes all reports

and complaints relating to KRUG’s use of force throughout his career, including numerous

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“Use of Force” report forms filed by the defendant 1.

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The defendant was provided with all

the paperwork maintained by the BPD concerning the arrests of the three individuals

referenced in the superseding Indictment.

In addition, the defense was provided with the

civil complaints and EBTs filed in connection with Counts 1, 2, and 3, along with medical

reports in connection with Counts 1 and 2.

The government turned over all the transcripts in

its possession of the 50-h hearings conducted in connection with events in the Superseding

Indictment.

The defense was provided with the videos, raw and broadcast, taken of the

events relative to Count 4, as well as photos depicting the injuries to D.F.

THE DEFENDANT= S MOTIONS

The defendant has filed pretrial motions seeking various forms of relief including

dismissal of the Indictment, suppression of statements, and additional discovery (including

disclosure of witness statements, Rule 404(b) evidence, Brady material, preservation of agent

notes).

The government=s responses to the defendant=s requests are set forth below.

I. Motion to dismiss the Superseding Indictment

a. Pre-Indictment Delay

The defendant claims that the Superseding Indictment should be dismissed because

Counts 1, 2 and 3 occurred more than 4 years prior to the return of the Superseding

1 In reviewing the discovery material provided to the defendant, the government observed that a number of the 2 page “Use of Force” forms provided included only the first page of the

form.

sides and will forward to the defense upon receipt.

8

The government is in the process of obtaining a new set of copies containing both

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Indictment and that the government’s delay in seeking the Indictment was a deliberate

attempt to gain an unfair tactical advantage over the defendant.

Relevant Factual background

The FBI began its investigation of the defendant only after the publicity surrounding

the November 27, 2014, events alleged in Count IV of the Superseding Indictment.

The

video footage of KRUG striking D.F. was broadcast on local television newscasts.

In

December 2014, the Buffalo Police Department referred the matter to the FBI for possible

investigation.

The FBI undertook an investigation of KRUG and presented the matter to

United States Attorney’s Office in December 2014.

Following review by the USAO, the

Grand Jury investigation commenced with the issuance of subpoenas.

In conducting their

investigation, FBI agents reviewed KRUG’S BPD personnel file.

The investigating agents

found numerous civilian complaints against KRUG which alleged excessive force.

While

most of the complaints involved events which took place outside the five year statute of

limitations, the agents reviewed the incidents involving M.W. and D.R., and decided to

conduct further investigation of those two incidents along with the November 2014 incident

with D.F.

The investigation involved identifying and interviewing witnesses to all three

events.

The Grand Jury returned the original Indictment on August 28, 2015, just prior to the

expiration of the statute of limitations for the August 29, 2010, incident that was the subject of

the Indictment.

Just one week later, on September 3, the Superseding Indictment was

returned.

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The Law

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“[T]he statute of limitations is the primary guarantee against bringing overly stale

criminal charges.

A set period within which prosecution must be initiated safeguards

citizens from standing trial on charges whose underlying facts have grown dim with age, and

from having to face possible punishment because of acts committed in the distant past.

Accordingly, [the Second Circuit has] held that timely brought criminal prosecutions are only

rarely dismissed.”

United States v. Cornielle, 171 F.3d 748, 751-52 (2d Cir. 1999) (citations

and internal quotation marks omitted).

Prosecutions commenced within the statute of

limitations may be dismissed on Fifth Amendment Due Process grounds when “the

defendant can prove that the Government's delay in bringing the indictment was a deliberate

device to gain an advantage over him and that it caused him actual prejudice in presenting his

defense.” United States v. Gouveia, 467 U.S. 180, 192, citing United States v. Lovasco, 431

U.S. 783, 788-89 (1977), and United States v. Marion, 404 U.S. at 322, 324.

In order to

merit dismissal of an indictment brought within the applicable statute of limitations, the

defendant must demonstrate that pre-indictment delay “cause[d] ‘substantial prejudice’ to the

defendant's ability to present his defense and ‘the delay was an intentional device to gain [a]

tactical advantage over the accused.”

(W.D.N.Y. 2005 ) (Foschio, M.J.).

United States v. Ullah, 2005 WL 629487 at *17

“[W]here delay prejudices the presentation of a defense and is engaged in for an

improper purpose it violates the Due Process Clause because such conduct departs from

fundamental notions of ‘fair play.’”

Cornielle, 171 F.3d at 752, quoting United States v.

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Lovasco, 431 U.S. at 795.

A defendant bears a “heavy burden” of proving that he suffered

actual prejudice because of the alleged pre-indictment delay and that such delay was a course

intentionally pursued by the government for an improper purpose.

Cornielle, 171 F.3d at

752, citing United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir. 1990) and United States v.

Hoo, 825 F.2d 667,671 (2d Cir. 1987).

Argument

In the instant case, the government did not deliberately delay in bringing an

Indictment against the defendant.

While two of the events being investigated were over four

years old, the actual FBI and Grand Jury investigations were completed in approximately 8

months after being initiated.

The government was not responsible for the time period

between the 2010 and 2011 events and the commencement of the investigations.

Until the

matter was referred to the USAO in December 2014, the government had no knowledge of

the events.

Thus, the government did not intentionally delay the return of the indictment as

to the in order to gain an unfair tactical advantage.

While the defense claims that evidence,

including possible eye witnesses may have been lost, and witness recollection diminished, the

government suffered the same, if not greater, loss.

The defendant, because of the BPD 50-h

hearings resulting from the complaints filed as to both the 2010 and 2011 incidents, as well as

the filing of civil law suits, was aware of the seriousness of the matters and in a position to

investigate and preserve evidence long before the government even knew of the incidents.

The defendant has failed to meet his “heavy burden” of proving that he suffered actual

prejudice because of the alleged pre-indictment delay and that such delay was a course

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intentionally pursued by the government for an improper purpose.

motion to dismiss must be denied.

b. Grand Jury taint.

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Thus, the defendant’s

The defendant asserts that filing of the August 12, 2015, complaint against the

defendant improperly tainted the Grand Jury as the Grand Jury conducted its investigation of

the defendant.

The defendant’s claim is unsubstantiated, lacks merit and should be denied.

The Law

Grand jury proceedings carry a presumption of regularity.

Furthermore, “as a general matter, a district court

may not dismiss an indictment for errors in grand jury proceedings unless such errors

The high profile case of United States v. Silver, 103 F.Supp.3d 370 (S.D.N.Y. 2015) is

almost identical to case at bar.

During the period immediately prior to defendant Silver

being indicted, the USAO for the Southern District of New York was conducting a much

publicized investigation into public corruption within the highest level of New York State

government.

Silver, the long-time Speaker of the New York State Assembly, was charged

with corruption offenses in a Criminal Complaint on January 21, 2015.

Following Silver’s

surrender on the complaint, the Unites States Attorney not only held a press conference and

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issued a press release, but over the next few days also published messages on Twitter, gave a

much publicized speech at a New York City law school, and was interviewed on national

television news programs.

On February 19, 2015, less than a month after the Criminal

Complaint, a Grand Jury returned an indictment against Silver.

Shortly after the Silver indictment was returned, the defendant claimed the publicity in

the case caused by the filing of the Complaint and subsequent press activity unfairly tainted

the grand jury, and moved to dismiss the indictment, or at least have the Court make an

inquiry of the grand jury as to the possibility it had been improperly influenced.

The District

Court characterized the defendant’s argument as follows:

The Defendant argues that the U.S. Attorney improperly and “substantially” influenced the grand jury in several ways. First, the Defendant complains that the Government improperly initiated this case by means of its 35–page Complaint, rather than by indictment, and claims the Government did so solely for the purpose of “maximiz[ing] exposure” and prejudicing the Defendant before the grand jury. See Mot. at 18. Second, the Defendant asserts that the Government improperly leaked news of the Defendant's arrest to the press hours before the Complaint was unsealed or the arrest was made. Id. Third, the Defendant claims that the Government “orchestrated the arrest and arraignment to maximize the opportunity for a ‘photo op’” to enhance the “perp walk” effect. Id. at 4, 18. Finally, the Defendant argues that the U.S. Attorney created a “media circus” around Silver's arrest through his improper and prejudicial comments during the press conference, New York Law School speech and MSNBC interview. Id. at 11.

Silver at 377-78.

The District Court quickly disposed of the issue surrounding the filing of a complaint

prior to indictment, holding that

the Government has discretion to proceed via complaint pursuant to the Federal Rules of Criminal Procedure; although the Complaint filed against Silver may have included more information than was absolutely necessary to establish probable cause the Defendant does not argue that the Complaint itself was improper or the source of any prejudice.”

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Silver, at 377.

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Although the District Court was somewhat more troubled by the United States

Attorney’s speech and press interviews, it nevertheless denied the defendant’s motion.

The

Court first noted that dismissal of an indictment because of a defect in the grand jury

proceedings is a “drastic remedy” that is “rarely used.” Silver at 376, citing United States v.

Martinez, No. 10–CR–233S (1)(2)(4), 2014 WL 1794934, at *2 (W.D.N.Y. May 6, 2014)

Fields, 592 F.2d 638, 647 (2d Cir.1978) (noting that dismissal of an indictment is an “extreme

sanction”).

The Court went on to find:

Significantly, while the Defendant seeks to distinguish the relevant precedent, he is unable to cite a single case where a court has taken the extreme step of dismissing an indictment solely based on pre-indictment publicity, whether instigated by the prosecutor or simply derived from the media at large. See Myers, 510 F.Supp. at 325 (“[W]hile the issue has been raised innumerable times, defendants have been unable to point to a final decision in a single case where an indictment has been dismissed upon the ground that the grand jury was prejudiced by pre-trial publicity.” (citing cases)); see also In re Grand Jury Investigation, No. 87–CV–0163, 1987 WL 8073, at *7 n. 4 (E.D.N.Y. Feb. 23, 1987) (noting the absence of any case in which a court exercised its supervisory powers to dismiss an indictment solely due to pre-indictment publicity (citation omitted)). While dismissal might be appropriate in instances where the defendant can show “a history of prosecutorial misconduct, spanning several cases, that is so systematic and pervasive as to raise a substantial and serious question about the fundamental fairness of the process which resulted in the indictment,” the Court finds that standard has not been met here. See Bank of Nova Scotia, 487 U.S. at 259, 108 S.Ct. 2369.

Silver, at 380-81.

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Argument

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The government’s filing of a criminal complaint prior to seeking an indictment is a

most common occurrence.

The defendant’s argument concerning “grand jury taint” in this

case suggests that the government be prohibited from filing a criminal complaint whenever it

contemplates seeking an indictment down the road.

As noted above, the Silver case makes

clear that the “[g]overnment has discretion to proceed via complaint pursuant to the Federal

Rules of Criminal Procedure.” Silver at 377. The defendant merely makes the unsupported

claim that the filing of a complaint in this case “influenced the grand jury.” (Defense Motion

p. 11).

Based on the law cited above, the defendant’s motion to dismiss based on “grand jury

taint” should be denied.

c. Count 2 is not facially insufficient

The defendant argues that Count 2 of Superseding Indictment is facially insufficient

because it fails to allege that the defendant’s actions (1) related only to the BPD and not

impede a matter within the jurisdiction of any department or agency of the United States; and

(2) that the defendant’s denial of the use of an “impact weapon” on the Use of Force Report

P-1374 was not a false statement insofar as a flashlight is not an “impact weapon.”

For the

reasons set forth below, the defendant’s arguments lack merit and should be denied.

The Law

Pursuant to Fed.R.Crim.P. 7(c)(1), an indictment A must be a plain, concise, and

definite written statement of the essential facts constituting the offense charged

@ In order

to comply with the pleading requirements of Fed.R.Crim.P. 7(c)(1), A an indictment need do

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little more than to track the language of the statute charged and state the time and place (in

approximate terms) of the alleged crime.@

United States v. Stavroulakis, 952 F.2d 686, 693

(2d Cir. 1992), quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975).

An

indictment A must be read to include facts which are necessarily implied by the specific

allegations made.@

Id., quoting United States v. Silverman, 430 F.2d 106, 111 (2d Cir.

1970).

Courts have found that A an indictment is sufficient if it, first, contains the elements of

the offense charged and fairly informs a defendant of the charge against which he must

defend, and, second, enables him to plead an acquittal or conviction in bar of future

prosecutions for the same offense.@

Hamling v. United States, 418 U.S. 87, 117 (1974).

The elements of 18 U.S.C. 1519 are: (1) that the defendant altered, falsified, destroyed,

mutilated, concealed, covered up, made a false entry in any record, document, or object that

can be used to record or preserve information; (2) the defendant acted knowingly; (3) that the

defendant acted with the intent to impede, obstruct or influence an investigation or a matter

within the jurisdiction of, or in relation to or in contemplation of, a department or agency of

the United States Government. 2 L. Sand, et al., Modern Federal Jury Instructions-Criminal

(2015), ¶46.13. See also United States v. Kernell, 667 F.3d 746 (6th Cir. 2012).

Using the standard articulated above, there is no question that Count 2 of the

Superseding Indictment satisfies the pleading requirement.

A plain reading of the count

unequivocally sets forth the required elements of the charge in that the defendant did: (1)

“conceal, cover up, falsify and make a false entry in a record and document, specifically a

Buffalo Police Department Use of Force Report P-1374”; (2) “knowingly”; and (3) “in

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relation to and in contemplation of a matter within the jurisdiction of a department and

agency of the United States, and with the intent to impede, obstruct, and influence the

investigation and proper administration of the matter.”

The Indictment identifies the date

on which the defendant allegedly committed the crime, provides details regarding the

defendant’s conduct, and specifies that “the Federal Bureau of Investigation was an agency of

the United States Department of Justice and responsible for investigating the deprivation of

rights secured and protected by the Constitution and laws of the United States by persons

acting under color of law.”

offense.

As such, the Indictment is facially valid, and states a cognizable

The defendant claims that a false statement in a Buffalo Police Report cannot

constitute a violation of 18 U.S.C. 1519.

The defendant is wrong.

In United States v. Gray,

642 F.3d 371 (2 nd Cir. 2011), the Second Circuit rejected the proposition championed by

KRUG, holding that:

by the plain terms of § 1519, knowledge of a pending federal investigation or proceeding is not an element of the obstruction crime”. See United States v. Ionia Mgmt. S.A., 526 F.Supp.2d 319, 329 (D.Conn.2007) (“In comparison to other obstruction statutes, § 1519 by its terms does not require the defendant to be aware of a federal proceeding, or even that a proceeding be pending.”).

Gray, at 378.

In reaching its decision in Gray, the Second Circuit quoted from the Senate Record:

Section 1519 is meant to apply broadly to any acts to destroy or fabricate physical evidence so long as they are done with the intent to obstruct, impede or influence the investigation or proper administration of any matter, and such matter is within the jurisdiction of an agency of the United States, or such acts done either in relation to or in contemplation of such a matter or investigation. This statute is specifically meant not to include any technical requirement, which some courts have read into other obstruction of justice statutes, to tie the obstructive conduct to a pending or imminent proceeding or matter. It is also sufficient that the act is done “in contemplation” of or in relation to a matter or

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investigation. It is also meant to do away with the distinctions, which some courts have read into obstruction statutes, between court proceedings, investigations, regulatory or administrative proceedings (whether formal or not), and less formal government inquiries, regardless of their title. Destroying or falsifying documents to obstruct any of these types of matters or investigations, which in fact are proved to be within the jurisdiction of any federal agency are covered by this statute. S.Rep. No. 107–146, at 14–15 (2002), 2002 WL 863249, at *12–13 (emphases added) (footnotes omitted).

Gray, at 377.

The defendant also argues that language in Count 2 relating to the defendant’s use of a

flashlight as an impact weapon renders the Count facially insufficient because a flashlight is

not an “impact weapon.”

Again, the defendant’s argument is without merit.

Webster’s

Dictionary defines a weapon as “something (as a club, knife, or gun) used to injure, defeat, or

destroy.”

A large flashlight, as possessed and used by KRUG to strike M.W., is certainly an

weapon used to “impact,” or forcibly strike an individual.

In any event, whether the

flashlight as wielded by KRUG constituted an impact weapon, is a question of fact for the

jury to determine and does constitute a legal issue sufficient to sustain a motion to dismiss at

this stage of the proceedings.

II.

Severance

The defendant seeks to have Counts 3 and 4 severed from each other and from Count

1 and claiming that he would suffer “severe prejudice” if all the counts were not severed.

The defendant does not contest the joint trial of Counts 1 and 2.

Although the government

believes that the decision to severe is best left to the trial court and would urge such deference

in this case, it will set forth its argument below as to why severance should be denied.

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The Law

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Federal Rule of Criminal Procedure 8(a) provides: The indictment or information

may charge a defendant in separate counts with two or more offenses if the offenses charged –

whether felonies or misdemeanors or both – are of the same or similar character or are based

on the same act or transaction or are connected with or constitute parts of a common scheme

or plan.

A >Similar= charges include those that are >somewhat alike,= or those >having a general

likeness= to each other.

United States v. Riviera, 546 F.3d 245, 253 (2d Cir. 2008), quoting

United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980).

Additionally, counts A that have a

>sufficient logical connection= to each other can be tried together, as can those >where the same

evidence may be used to prove each count.=@

omitted).

Riviera, 546 F.3d at 253 (internal citations

The Second Circuit has recognized the “important policy” underlying Rule 8(a),

namely,

“that

of

trial

convenience

and

economy

of

judicial

and

prosecutorial

resources—considerations of particular weight when the Government and the courts have

been placed under strict mandate to expedite criminal

trials

1037, 1043 (2d Cir.1988) (Congress authorized consolidation in the belief that public

considerations of economy and speed outweigh possible unfairness to the accused).

Although properly joined, the Court may order separate trials or grant a severance

under Rule 14 of the Federal Rules of Criminal Procedure if it appears that the defendant is

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prejudiced by the joinder.

Werner, 620 F.2d at 928.

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However, A in order to prevail, the

defendant must show not simply some prejudice but substantial prejudice.@ (emphasis added)

United States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004), citing Werner, 620 F.2d at 928.

Granting a severance under Rule 14 requires more than a showing of some adverse effect.

A

defendant who seeks separate trials under Rule 14 carries a heavy burden of showing that

joinder will result in substantial prejudice.

Amato, 15 F.3d 230, 237 (2d Cir. 1994).

Sampson, 385 F.3d at 190, citing United States v.

Severance is not warranted “merely because [the

defendant] may have a better chance of acquittal in separate trials.” Zafiro v. United States,

Moreover, “less drastic measures [than severance], such as

limiting instructions, often will suffice” to cure any risk of prejudice and permit joinder.

United States v. Page 657 F.3d 126, 129 (2 nd Cir. 2011), quoting Zafiro at 539.

The Court

may presume that the jury is capable of understanding and following limiting instructions

provided during the course of and at the conclusion of the trial with regard to the manner in

which it may use evidence.

Argument

In the instant case, the three incidents charged are “of similar nature.”

In each

instance, the Superseding Indictment alleges that defendant, while on duty and in uniform,

used excessive force on an individual by striking that individual with a nightstick or flashlight.

The government would call witnesses from the Buffalo Police Department to explain the

training and standards regarding use of force within the department.

The government is also

contemplating calling an expert witness regarding use of force. Thus, there would be

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significant inefficiency in conducting multiple trials when the explanation of the government

witness(es) would explain the force used in each count of the Superseding Indictment.

The defendant quotes extensively from United States v. Halper, 590 F. 2d 442 (2 nd Cir.

1978).

In Halper, the Court ruled that severance was necessary because the crimes tried

together, tax fraud and Medicare fraud, were not of “similar nature.”

The Court rejected the

government’s argument that the cases were of similar nature in that they were both crimes of

dishonesty for personal profit.

Instead, the Court ruled that the Medicare and tax frauds

were two separate schemes and did not involve any common evidence.

Here, the three

instances of excessive force are of similar nature and involve common evidence and therefore

are properly joined.

The defendant’s reliance on United States v. Alverado, 1994 U.S. Dist. LEXIS 17062

(S.D.N.Y. 1994) also is misplaced.

In Alverado, the defendant was indicted on 2 separate

robberies.

In the first robbery, there was very weak identification of the defendant as one of

the perpetrators while the identification in the second robbery was much stronger.

The

Court sanctioned severance because the identification in the first case was unfairly buttressed

by the subsequent event.

The same rationale applies to another case cited by the defense, United States v. Ernle,

2012 U.S. Dist. LEXIS 48630 (W.D.N.Y. 2012).

In Ernle, the Court severed three bank

robberies because there was no physical evidence linking the defendant to the first two

robberies while the defendant was caught with dye-stained money taken during the third

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robbery.

The only evidence linking the defendant to the first two robberies was that of modus

operendi.

Here, there is no issue of unfairly buttressing one unlawful use of force with any of the

others in the Superseding Indictment, nor is there an issue of identification of the defendant.

The acts of the defendant in each count be judged separately by the jury for that particular

count.

In addition, the court can provide a limiting instruction if necessary.

motion for severance should be denied.

As such the

The defendant also claims that he is entitled to severance because he may wish to

testify as to Counts 1

and 3, but

not

as to

Count 4.

Such a claim does not meet the

defendant’s heavy burden to justify severance.

The case cited by the defendant, United

States v. Sampson, 385 F. 3d 183 (2 nd Cir. 2004) reinforces that point:

We stated in United States v. Werner, however, that “a mere unexplicated assertion” of the desire to testify on only one count is not enough to require severance. Werner, 620 F.2d at 930. In Werner, we pointed to the D.C. Circuit's statements in Baker that “ ‘no need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other.’ ” Id. at 930 (quoting Baker, 401 F.2d at 977). The court in Baker said further:

In making such a showing, it is essential that the defendant present enough information—regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other—to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant's interest in having a free choice with respect to testifying.

Baker, 401 F.2d at 977 (footnote omitted); see also United States ex rel. Tarallo v. LaVallee, 433 F.2d 4, 6 (2d Cir.1970) (“Moreover, in order for a defendant to be granted a

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severance, he must make a ‘convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other.’ ”) (quoting Baker, 401 F.2d at 977), cert. denied, 403 U.S. 919, 91 S.Ct. 2235, 29 L.Ed.2d 697 (1971). Footnote omitted.

Sampson, at 191.

In Sampson, the Court ruled that severance of certain counts should have

been granted by the trial court based on a detailed presentation by the defense explaining why

the defendant would testify as to certain counts and not others.

Here, the defendant makes a weak assertion that “he may wish” to testify regarding

certain counts and not others.

However, the defendant has failed to meet the burden set

forth in Sampson.

The defendant has failed to provide a detailed presentation regarding

such testimony and, therefore his motion to must be denied.

Based on the foregoing, the defendant’s motion for severance based on Rule 8(a), Rule

14, and his assertion that he may testify should be denied.

III. Garrity Statements

The government recognizes that statements made by persons under compulsion to

speak or, alternatively, lose their jobs, cannot be used in a criminal prosecution.

Garrity v.

New Jersey, 385 U.S. 493 (1967).

The government has not had access to any such

statements that may have made by the defendant in a Garrity situation.

The FBI, or any

other federal investigative or law enforcement agency, did not supervise, monitor, or

otherwise participate in the “internal affairs” investigation conducted by the Professional

Standards Division (PSD) of the BPD.

Although the FBI did obtain the files of the BPD, the

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FBI employed a taint agent to review the BPD file to ensure that any such statements would

not be disclosed to the criminal investigative team.

There is, consequently, no basis for the

Court to “suppress” such statements, nor to hold a hearing on this subject.

VI.

Discovery

a. Bill of Particulars

In his request for a Bill of Particulars, the defendant set forth five specific requests for

each Count.

Essentially, the defendant requests the exact time, date and manner in which

the defendant committed the crimes alleged in the Indictment, the names of all witnesses, and

specification as to how the government will prove each allegation in the Indictment.

with

The Indictment is this case is very straightforward.

The defendant has been provided

significant

discovery

materials.

In

addition,

the

Criminal

Complaint

provides

significant information concerning the government=s case against the defendant as to Count

4. For the reasons set forth below, the government refuses the requests for further

particularization, except to the extent agreed to below.

a. Legal foundation for a Bill of Particulars

Federal Rule of Criminal Procedure 7(f) authorizes a Court to direct a bill of

particulars only in certain limited circumstances.

According to settled law, a defendant may

only obtain a bill of particulars if such facts are A necessary to apprise the defendants of the

charges against him [or her] with sufficient precision so as:

(i) to enable him [or her] to

prepare his defense; (ii) to avoid unfair surprise at trial; and (iii) to preclude a second

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prosecution for the same offense.@ 2

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United States V. Persico, 621 F. Supp. 842, 868

(S.D.N.Y. 1985) (citing Wong Tai V. United States, 273 U.S. 77, 82 (1927); United States v.

Bortnovsky, 820 F.2d 572 (2d Cir. 1987)).

The rationale most frequently cited by Courts in refusing to order particularization

consists of the fundamental distinction between criminal and civil matters, and the

recognition that most bills of particulars are A ill-disguised attempts@ at discovery not

contemplated by the Constitution or Federal Rules of Criminal Procedure.

United States v.

Torres, 901 F.2d 205, 234 (2d Cir. 1990).

See also, United States v. Lavin, 504 F. Supp.

1356 (N.D. Ill. 1981) (defendants= requests nothing more than A improper attempts to discover

the evidentiary details of the prosecution =s case @ ); Shoher, 555 F. Supp. at 350 (requests

A border on frivolous@ and A probe too deeply into the Government= s theory of the case @ ).

In

Persico, the Court explained its denial A [b]ecause of the nature of the issues, the danger of

intimidation of witnesses, and the greater danger of perjury and subornation of perjury

caused by disclosure of particulars of the Government= s case.@

621 F. Supp. at 868 (quoting

United States v. Malinsky, 19 F.R.D. 426, 428 (S.D.N.Y. 1956) and United States v. Salazar,

485 F.2d 1272 (2d Cir. 1973)).

2 The A double jeopardy @ justification for awarding particularization appears to have limited

vitality in this Circuit given judicial recognition that the factor A does not >add anything to the functions previously described.=@ United States v. Payden, 613 F. Supp. 800, 816 n.14, aff=d,

768 F.2d 487 (2d Cir. 1985) (quoting 1 C. Wright, Federal Practice and Procedure (Criminal)

' 129, at 436-37 (2d Ed. 1982)). Concern over this factor has also been described as A unfounded@ given that following trial, defendants have available the entire record of proceeding, not simply the indictment, in the event they are later put in jeopardy for some aspect of a previously charged offense. United States v. Shoher, 555 F. Supp. 346, 351 (S.D.N.Y. 1983) (citing Russell v. United States, 369 U.S. 749, 764 (1962)).

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Cognizant of these principles, Courts have recognized their inherent discretion to award

particularization:

[M]ust be informed, however, by certain well established considerations: whether

the requested particularization is necessary to a defendant=s preparations for trial and

to the avoidance of unfair surprise at trial

would be useful to the defendant; if the defendant has been given adequate notice of the charges against him, the Government is not required to disclose additional details about the case. The court must be cognizant of the fact that a bill of particulars confines the Government=s evidence at trial to the particulars furnished.

It is not enough that the information

Payden, 613 F. Supp. at 816.

See also, Bortnovsky, supra, at 574 (court will not order

particularization where the government has provided the information requested either A in the

indictment or some acceptable alternative form.@ ); Torres, 901 F.2d at 234;

United States v.

Desantis, 802 F. Supp. 794, 797-798 (E.D.N.Y. 1992) (A as a general rule if the information

that the defendant seeks is to be found in the indictment or in some acceptable alternative

form, no bill of particulars is required@ ); United States v. Feola, 651 F. Supp. 1068, 1133

(S.D.N.Y. 1987)(whether the information sought has been provided elsewhere, such as in

other items provided by discovery, responses made to unobjected requests for particulars,

prior proceedings, and the indictment itself may be considered in deciding whether to order

particularization), aff'd, 875 F.2d 857 (2d Cir. 1989).

A bill of particulars A is not a discovery tool and is not intended to allow defendants a

preview of the evidence or the theory of the government= s case.@

United States v. Guerrerio,

670 F.Supp. 1215, 1225 (S.D.N.Y. 1987) (citing United States v. Andrews, 381 F.2d 377,

377 B 78 (2d Cir. 1967) (per curiam); United States v. Remy, 658 F.Supp. 661, 670 (S.D.N.Y.

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1987)). The United States is not obligated to disclose either the manner in which it will

attempt to prove the charges or the precise manner in which the defendant committed the

crime charged. See id.

While it is within this Court's sound discretion to order the filing of a

Bill of Particulars, the burden is upon defendants to show that non-disclosure of the requested

particulars would lead to prejudicial surprise at trial or would adversely affect defendants'

rights. Any particularization confines the Government's proof to the particulars furnished.

United States v. Anguiera, No. 11CR116S, 2012 WL 1232096, at *2 Further, A acquisition of

evidentiary detail is not the function of a bill of particulars,@ Torres, 901 F. Supp. at 234

(quoting Hemphill v. United States, 392 F.2d 45, 49 (8th Cir. 1968)), and A [a]n application for

a bill of particulars seeking, in effect, to obtain evidence must be rejected.@

United States v.

Facciola, 753 F. Supp. 449, 451 (S.D.N.Y. 1990), aff=d sub nom., United States v.

Skowronski, 968 F.2d 242 (2d Cir. 1992).

A Court also may not compel the Government to disclose its legal theory.

Persico,

supra; United States v. Biaggi, 675 F. Supp. 790, 809 (S.D.N.Y. 1987).

The Government

need not reveal A the precise manner in which the crime charged in the indictment is alleged to

have been committed

nor the exact time and place and persons present at each overt act

named in the indictment.@

Biaggi, 675 F. Supp. at 809 (internal citations omitted).

See

also, United States v. Ferrarini, 9 F. Supp. 2d 284, 299-300 (S.D.N.Y. 1998) (rejecting

demand for bill of particulars outlining defendant's specific role in the charged conduct and

actions taken with respect to mail and insurance fraud counts). Nor may particularization be

used to A force detailed disclosure of acts underlying a charge,@

United States v. Mannino,

480 F. Supp. 1182, 1185 (S.D.N.Y. 1979), or as A a means to lock the government into its

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proof.@

United States v. Rigas, 258 F. Supp. 2d 299, 304 (S.D.N.Y. 2003)(citing United

States v. Fruchter, 104 F. Supp. 2d 289, 311-12 (S.D.N.Y. 2000); United States v. Perez, 940

F. Supp. 540, 550 (S.D.N.Y. 1996); United States v. Strawberry, 892 F. Supp. 519, 526

(S.D.N.Y. 1995).

Indeed, because a defendant A is only entitled to know those central facts

which will enable him to conduct his own investigation of the transactions that resulted in the

charges against him,@ a bill of particulars may not be employed A to give a defendant the

benefits of the Government=s investigative efforts.@

272 (E.D.N.C. 1988) (citations omitted).

United States v. Stroop, 121 F.R.D. 269,

With these limitations in mind, and because bills of particulars are confined to those

instances where information is A needed@ to prepare for trial, defendants seeking particular

information have the burden of articulating specific facts relating to the need for the

information, rather than only referring the Court to other cases in which similar information

has been provided.

Payden, 613 F. Supp. at 817. 3

b. Most of the requests in this case do not meet the legal threshold

In the instant case, for the most part, counsel fails to articulate any facts upon which

the Court could conclude that the defendant had met his burden of establishing need,

3 Payden provides valuable insight on a number of particularization issues, including A [a]s a general rule, the defendant does not >need= detailed evidence about the conspiracy in order to

prepare for trial properly @ , and A [b]ecause the government is entitled to prove a conspiracy

would unduly limit the

government's proof at trial.@ 613 F. Supp. at 817. A Judge in this District has made similar observations regarding particularization in a conspiracy case. United States v. Mullen, 243 F.R.D. 54, 62 (W.D.N.Y. 2006) (citing Feola, supra).

through the use of circumstantial evidence, disclosure

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especially in light of the talking Indictment, voluminous discovery and the detailed

information contained in Criminal Complaint as to Count 4.

As set forth above, the discovery production eliminates the need for a bill of

particulars.

Torres, 901 F.2d at 234; Payden, 613 F. Supp. at 817.

Accordingly, for all of

the foregoing reasons, defendant=s requests for a bill of particulars should be denied except as

follows:

1.

a. August 29, 2010, at approximately between 10:30 pm and 11:00 pm, in the vicinity of 46-52 Langmeyer, Buffalo, New York.

e.

Details of the injuries to M.W. are contained in the medical records provided in

discovery.

2.

a. The form was provided to the defense as part of discovery. The form was completed by the defendant in the City of Buffalo on or about August 29 or August 30, 2010.

b.

As set forth in the Superseding Indictment the FBI was, and is, empowered to

investigate all matters of civil rights violations included use of excessive force under color of law.

3

February 4, 2011, at approximately between 11:00 am and 11:30 pm, on Bissell Avenue between Walden Avenue and Genesee St., Buffalo, New York.

a.

e.

D.R. suffered pain and an injury to his head.

4.

November 27, 2014, at approximately between 3:00 am and 4:00 am, in the vicinity of Pearl and Chippewa, Buffalo, New York.

a.

e. D.F. suffered pain, swelling and bruising of his left leg.

VII.

Discovery

As set forth above, the government has provided the defendant with significant

discovery, including the defendant’s BPD personnel file relating to his use of force, the video

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recording of the events of November 27, 2015, transcripts of rule 50-h hearings, medical

records of M.W., and documents from the civil proceedings relating to Counts 1, 2, and 3.

The government is expecting to receive the audio tapes of the BPD radio calls leading up to

the events of August 29, 2010, and February 4, 2011, and will provide same to the defense

upon receipt.

The government has provided all the materials from its file except reports of

FBI interviews of witnesses and the Grand Jury testimony of witnesses.

This so called

“Jencks Act” material will be provided prior to trial as directed by the trial court.

Many of the defendants’ Rule 16 requests are inapplicable to this case.

For example,

there have been no search warrants; no wiretaps, no sound recordings (except radio calls that

will be provided by the government and the video/audio recordings of the events of

November 27, 2014, that have been provided to the defense).

Nor have there been any

corporeal or photo identification procedures.

There also have been no custodial statements

taken from the defendant.

Any additional discoverable evidence the government finds shall

be disclosed pursuant to the Rule.

The government has complied with the Rule and will continue to do so.

However, to

the extent the defendants request more, the Court must deny the requests.

In particular, the

defendant’s request must be denied to the extent they ask “for reports, memoranda, or other

internal

government

documents

made

by

an

attorney

for

the

government

or

other

government agent in connection with investigating or prosecuting the case.”

Fed.R.Crim.P.

16(a)(2).

Several requested items, either in whole or in part, clearly fall within this category

of non-discoverable material. To note only some examples, see, e.g., Dkt. No. 23, p. 27

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¶ ¶ 6-8, 10.

Finally, the Court must deny the defendants’ motions to the extent they apply

to materials obtainable only pursuant to the Jencks Act.

a. Brady/Giglio Material

The defendants seek production of materials under the authority of Brady v.

Maryland, 373 U.S. 83 (1963).

In the present case, the government is not aware of any

material that is exculpatory.

The government acknowledges its affirmative duty to provide

the defendants with exculpatory evidence, as well as evidence the defense might use to

impeach the government's witnesses at trial.

United States v. Bagley, 473 U.S. 667 (1985);

Giglio

v.

United

States,

405

U.S.

150

(1972).

Given

this,

and

the

government’s

acknowledgment of its Brady obligations, no order from the Court is required.

United States

v. Washington, 2014 WL 793320, *7 (W.D.N.Y. 2014).

Brady and Giglio, however, do not create a constitutional right of pretrial discovery in

a criminal proceeding.

Neither case requires the prosecution to reveal before trial such

things as the names of its witnesses.

See Weatherford v. Bursey, 429 U.S. 545, 559 (1977);

United States ex rel. Lucas v. Regan, 503 F.2d 1, 3 n. 1 (2d Cir. 1974).

Evidence that is not

exculpatory but is relevant for the purposes of impeachment, must be produced to the

defense, but need not be turned over in advance of trial.

See United States v. Nixon, 418

U.S. 683, 701 (1974); see also United States v. Dotel, 1994 WL 25787, slip op. at *3

(S.D.N.Y. 1994).

Brady impeachment material as to government’s witnesses -- i.e., Giglio

material -- is properly disclosed when the witness testifies at trial).

United States v. Feldman,

731 F. Supp. 1189, 1200 (S.D.N.Y. 1990).

Typical impeachment material, such as a

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witness’s beneficial treatment by the government, is normally disclosed at the time Jencks Act

(3500) material is turned over, i.e. after the government witness has testified on direct

examination.

18 U.S.C. 3500(b); United States v. Payden, 613 F. Supp. 800, 821 (S.D.N.Y.

1963).

The law in the Second Circuit is that Giglio material, like standard Brady material,

must be disclosed “in time for its effective use at trial."

United States v. Coppa, 267 F.3d

132, 142 (2d Cir. 2001).

The immediate disclosure of Brady and Giglio material upon a

defendant's request, or at any time prior to trial, is not required.

Coppa, at 140.

Brady also does

not

require

the

government to

do

defense

counsel's pretrial

preparation, nor develop defense strategy, nor does it require the government to point out the

obvious.

United States v. Larson, 567 F. Supp. 500, 503 (S.D.N.Y. 1983); United States v.

Ruggerio, 472 F.2d 599, 604 (2d Cir. 1973) (A purpose of the Brady rule is not to provide a

defendant with a 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).

As noted above, the government is not aware of any facts tending to exculpate a

defendant.

If the government discovers such evidence, it will be disclosed promptly.

The

government will provide impeachment Brady material in accordance with the schedule set by

the District Court prior to trial and not later than when the government produces and delivers

the Jencks Act material in this case. Brady impeachment material, if any should arise here,

would include promises of leniency or immunity agreements with government witnesses,

plea and/or non-prosecution agreements and letters or memorandum of understanding

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regarding such, criminal arrest records of all prosecution witnesses, immoral, vicious or

criminal acts committed by witnesses, prior inconsistent statements.

A prosecutor=s

compliance with the disclosure of material under the Jencks Act is timely disclosure under

Brady.

United States v. Martino, 648 F.2d 367, 384 (5th Cir. 1981) (“ ‘when alleged Brady

material is contained in Jencks Act material, disclosure is generally timely if the government

complies with the Jencks Act.’ ”);

United States v. Anderson, 574 F.2d 1347, 1352 (5th Cir.

1978); United States v. Persico, 621 F. Supp. 842, 870 n.3 (S.D.N.Y. 1985).

For the reasons stated above, no court-ordered relief regarding Brady/Giglio material

is required.

The defendants’ motions should be denied.

b. Jencks Act Material

Disclosure of a witness “statement” is governed by the Jencks Act, 18 U.S.C. § 3500.

The statute requires disclosure of the prior statement of a witness only after the witness has

testified on direct examination at trial.

United States v. Coppa, 267 F.3d 132, 145 (2d Cir.

2001).

District courts may not compel the government to disclose such material earlier.

Coppa, at 145; In Re United States, 834 F.2d 283, 286-87 (2d Cir. 1987).

The Jencks Act provides that no statement of a government witness shall be the subject

of a discovery demand, “until said witness has testified on direct examination in the trial of

the case.”

A “statement” is defined to include a statement made by a witness to a grand jury.

18 U.S.C. § 3500(e)(3).

The defendants’ request for earlier disclosure of Jencks material

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generally and grand jury material in particular seeks to circumvent the Jencks Act.

motion for such disclosure must be denied.

The

The government recognizes the practical difficulties that would arise upon precise

application of the timing prescribed by the statute.

As a matter of discretion and

accommodation, the government will disclose Jencks material a reasonable amount of time

prior to trial.

The defendants’ motions, however, demand more, and therefore they must be

denied.

Moreover, it also must be noted that the Jencks Act applies only to “statements.”

A

statement is defined by the Jencks Act as follows:

The term “statement”, as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means--

(1) a written statement made by said witness and signed or otherwise adopted or approved by him;

(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or

(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.

18 U.S.C. § 3500(e).

The meaning of “statement” is thus restricted to what the testifying witness states or

adopts

as

true.

This

would

not

extend,

for

example,

to

a

government

attorney’s

memorandum as described by Krug, except insofar as such a memorandum otherwise met

the statutory definition of “statement.”

Decisions such as United States v. Goldberg, 425

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U.S. 94 (1976), therefore, while not narrowing the definition to exempt certain items,

expressly do not expand the definition to apply to things not within it.

Goldberg, at 101-106.

To the extent the defendants request materials that are not statements as defined in the

statute, their requests also must be denied.

c. Preservation of agents’ notes

The government has notified the agents to preserve notes generated during the

investigation and will disclose same pursuant to Jencks.

d. Disclosure of expert witnesses

The government recognizes the obligations imposed by the applicable rules.

If the

government retains an expert witness for use at trial, the disclosure prescribed by the rules will

be made.

No such expert has been retained to date.

e.

Rule 807 disclosure

If the government offers intends to offer evidence subject to the residual hearsay

exception, the notice required by FRE 807(b) shall be provided.

f. Hearsay declarant disclosure

The government views this request for relief as an offshoot of its Brady obligations.

The government will continue to comply with its obligations under Brady.

the sort requested here is justified.

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g. Hearing pursuant to Rules 404(b) and 609

The issues raised pursuant to Rules 404(b) and 609 are matters that should be

addressed by the trial judge.

The government will provide reasonable advance notice of any

404(b) evidence.

There is no basis, however, for this matter to be ruled upon at the present

juncture.

The government does not have information that would fall under the provisions of

Rule 609.

h.

Leave to make further motions

The government defers to the discretion of the Court whether the defendant’s request

for leave to file further motions is appropriate.

THE GOVERNMENT= S REQUEST FOR DISCOVERY PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 16(B)(1)

Pursuant to Rule 16(b) of the Federal Rules of Criminal Procedure, the government

hereby requests reciprocal discovery.

Specifically, the government requests that it be

allowed to inspect and copy books, papers, documents, photographs, tangible objects, or

copies or portions thereof which are within the possession, custody or control of a defendant

and which a defendant intends to introduce as evidence-in-chief at the trial.

Additionally,

the government requests to inspect and copy any results or reports of physical or mental

examinations and/or of scientific tests or experiments made in connection with this case

within the possession or control of a defendant which a defendant intends to introduce as

evidence-in-chief at the trial or which was prepared by a witness whom a defendant intends to

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call at the trial when the results or reports relate to that witness =s testimony.

As of this date,

defendant has not provided any reciprocal discovery to the government.

CONCLUSION

WHEREFORE, for all of the foregoing reasons, the defendant=s motions should be

denied except where consented to by the government.

DATED:

Buffalo, New York, January 14, 2016.

WILLIAM J. HOCHUL, JR. United States Attorney

BY:

s/JOHN E. ROGOWSKI Assistant United States Attorney

United States Attorney= s Office Western District of New York 138 Delaware Avenue

Buffalo, New York

(716) 843-5873 John.E.Rogowski@usdoj.gov

14202

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