WILLIAM F. KUNTZ, II, District Judge.
Jose Barrera ("Defendant" or "Barrera") is charged with six counts in a seventeen-count indictment (the "Indictment"), which alleges various crimes on the part of several members of the street gang La Mara Salvatrucha, also known as MS-13 ("MS-13"). Currently pending before the Court are several of Defendant's pre-trial motions. First, Defendant moves to suppress evidence procured through the use of a wiretap on the phone of an alleged co-conspirator. Second, Defendant moves for an evidentiary hearing pursuant to Franks v. Delaware to ascertain whether and to what extent the Government provided misleading information in its applications for the wiretaps at issue, thereby affecting the determination of probable cause. Third, Defendant seeks discovery of law enforcement reports and witness or
MS-13 is a violent street gang that was recently designated a transnational criminal organization by the U.S. Department of Treasury. Press Release, U.S. Department of Treasury, Treasury Sanctions Latin American Criminal Organization (Oct. 11, 2012), available at http://www.treasury. gov/press-center/press-releases/pages/tg 1733.aspx. The gang operates in more than forty states through local "cliques," which report and funnel money to the group's central leadership in El Salvador. Id. MS-13 is involved in various serious transnational crimes, "including drug trafficking, kidnapping, human smuggling, sex trafficking, murder, assassinations, racketeering, blackmail, extortion, and immigration offenses." Id.
Upon joining MS-13, gang members agree to attack "chavallas"—i.e., members of other gangs—whenever possible. Gov't Opp. Br. at 2. Since at least 1998, members of MS-13 in Queens and Long Island have carried out violent attacks against members of rival gangs. Id. at 1. Specifically, in Queens, MS-13 has been engaged in street wars against the Latin Kings, the Bloods and the Original Flushing Crew ("OFC"). Id. These street wars have resulted in multiple murders, shootings, and assaults on members of both MS-13 and rival gangs, as well as their family members and innocent bystanders. Id. at 1-2. Members of MS-13 often carry out orders "from regional, national, and international MS-13 leaders, including orders to kill witnesses, rival gang members, and potential cooperating or defecting MS-13 members." Id. at 2.
Defendant is accused of being a member of an MS-13 clique based in Flushing, Queens, and of committing numerous crimes on behalf of the gang. Id. Defendant is charged in the first, second, fourth, fifth, eighth, and ninth counts of the Indictment. Count One charges Defendant with engaging in racketeering from July 2009 to December 2011, committed as part of his involvement with MS-13, based on predicate acts of conspiracy to murder ("Racketeering Act One") and attempted murder ("Racketeering Act Three"). Indictment, Dkt. No. 1, at ¶¶ 6-8, 10. The Government alleges that between July 2009 and December 2011, Defendant conspired with co-defendants to murder members of the OFC, a rival gang located in Flushing, Queens. Id. at ¶ 8. The Government also alleges Defendant attempted to kill an unnamed victim ("John Doe") on September 24, 2010. Id. at ¶ 10. Count Two charges Defendant with racketeering conspiracy, based on an agreement with two co-defendants to commit the acts alleged in Count One. Id. at ¶¶ 12-14. Counts Four, Five, Eight and Nine charge Defendant with wrongs in connection with the predicate acts underlying Count One. Count Four charges Defendant with conspiracy to murder one or more persons, to wit: members of the OFC. Id. at ¶¶ 18-19. Count Five charges Defendant with unlawful use of a firearm in connection with conspiracy to murder as alleged in Count Four. Id. at ¶ 20. Count Eight charges Defendant with attempted murder of John Doe. Id. at ¶¶ 25-26. And, last, Count Nine charges Defendant with assault with
On December 2, 2010, during its investigation of MS-13, the Government submitted an application, pursuant to 18 U.S.C. § 2518, for authorization to wiretap a cell phone used by Christian Merino ("Merino" a/k/a "Casper"), the alleged "primero" or leader of the Flushing, Queens clique of MS-13. See generally Def.'s Br., Ex. A ("Dec. 2, 2010 Aff."). On the same day, the Hon. Jack B. Weinstein issued an order authorizing the wiretap. Id.
Special Agent Sean Sweeney of Homeland Security Investigations ("HSI") submitted an affidavit in support of the Government's application for the wiretap. Id. According to the affidavit, the Government was provided a wealth of information regarding the activities of MS-13 by a cooperating witness ("CW1"). For instance, CW1 recounted to Agent Sweeney a conversation with defendants Christian Merino, Nelson Quinteros ("Quinteros" a/k/a "Sonic"), and Alex Machado ("Machado" a/k/a "Negro") in which the three admitted to stabbing a member of a rival gang on September 24, 2010. Id. at ¶ 16a. CW1 also recorded phone calls in which Merino admitted to the September 24, 2010 stabbing, discussed an upcoming gang clique meeting, and mentioned a firearm that had been seized by the NYPD from co-defendant Wilber Baires in August 2010. Id. at ¶¶ 17, 20-21.
Furthermore, CW1 provided Agent Sweeney with information regarding two assaults planned by MS-13 members, which information allowed law enforcement to intervene and prevent those assaults. Id. at ¶¶ 16b-16c. On September 29, 2010, CW1 informed Agent Sweeney that a gang-related assault would occur that night in Murray Park, Flushing, Queens. Id. at ¶ 16b. HSI Special Agents and NYPD Detectives immediately responded to the location and encountered co-defendants Merino, Quinteros, and Negro hiding behind a fence, armed with a baseball bat. Id. The arrival of law enforcement caused the intended victims of the assault to flee. Id. On October 28, 2010, CW1 recorded an in-person conversation with Merino in which Merino indicated MS-13 gang members were planning to conduct a drive-by shooting against members of La Familia, a rival gang in Flushing. Id. at ¶ 16c. The next day, on October 29, 2010, a strong police presence near the area of the intended shooting caused the gang members to abort the plan. Id.
Agent Sweeney's affidavit explained why alternative investigative techniques—including some of the techniques outlined above, such as the use of a confidential witness and consensually recorded phone calls—were insufficient to achieve the goals of the investigation or were otherwise too dangerous to be attempted. Id. at ¶¶ 50-69. The affidavit asserted CW1 did not have complete knowledge of MS-13's criminal activities or unrestricted access to its member base, either domestically or internationally. Id. at ¶¶ 52-55. Nor did law enforcement officers believe CW1 would be able to develop the types of relationships necessary to acquire such knowledge. Id. Furthermore, the affidavit claimed surveillance was of limited effectiveness due to MS-13's covert operating procedures and wariness of law enforcement. Id. at ¶¶ 52, 56, 58-61. Finally, Agent Sweeney explained in his affidavit that it would be difficult for an undercover agent to penetrate MS-13 and that the use of search warrants, grand jury subpoenas, and witness interviews would be premature. Id. at ¶¶ 56-57, 62-64.
On January 6, 2011, Agent Sweeney submitted an affidavit requesting an order of
Agent Sweeney submitted affidavits in support of additional extensions of the wiretap on February 3, March 2, and April 1, 2011. See generally Def.'s Br., Ex. F ("Feb. 3, 2011 Aff."); Def.'s Br., Ex. H ("March 2, 2011 Aff."); Def.'s Br., Ex. I ("April 1, 2011 Aff."). Every application for authorization to extend the wiretap explained that alternative investigative techniques would, as previously described in the December 2, 2010 affidavit, be ineffective in achieving the goals of the investigation or otherwise be too dangerous to try. See Jan. 6, 2011 Aff. at ¶¶ 58-77; Feb. 3, 2011 Aff. at ¶¶ 57-76; March 2, 2011 Aff. at ¶¶ 56-77; April 1, 2011 Aff. at ¶¶ 46-67. The Court granted each of the Government's applications for authorization to extend the wiretap. See, e.g., Jan. 6, 2011 Aff. at 55.
The affidavits submitted in support of each of the Government's applications described in detail multiple phone and text message conversations captured as a result of the wiretap, in which Merino discussed plans to commit murder, assault, and other crimes with fellow MS-13 members. See, e.g., Feb. 3, 2011 Aff. at ¶¶ 17-31 (transcribing and interpreting conversations intercepted by the subject telephone). The communications also revealed contact information for various members of MS-13. See, e.g., id. For example, on December 20, 2010, Merino spoke with co-defendant Rudy Guembes-Lorena
The affidavits in support of the Government's wiretap applications asserted the wiretap on Merino's phone would continue to enable the Government to further the following goals: (1) discover the full scope of MS-13's criminal activities; (2) discover the identities and roles of all MS-13 members; (3) discover the stash locations of firearms, narcotics, and gang paraphernalia; (4) discover the management and disposition
Defendant claims Agent Sweeney provided the Court with two sets of material misrepresentations in the affidavits underlying the wiretaps at issue. Def.'s Br. at 12-13. The first set relates to co-defendant Rudy Guembes-Lorena, who was first identified as a suspect in the case in Agent Sweeney's January 6, 2011 affidavit. Id.; Jan. 6, 2011 Aff. at ¶ 12c. According to Defendant, Agent Sweeney testified on January 21, 2011 that he had no information about Guembes-Lorena's criminal activity. Def.'s Br., Ex. D (Excerpts from Sept. 7, 2011 Suppression Hearing, 07-CR-116) ("9/7/2011 Tr.") at 11:12-20. However, this testimony is contradicted by the fact that Guembes-Lorena had been identified by Agent Sweeney as a subject of the wiretap weeks earlier, on January 6, 2011. Jan. 6, 2011 Aff. at ¶ 12c.
As recounted earlier, the wiretap recorded a conversation between Merino and Guembes-Lorena regarding the planned killing of an MS-13 member who had been stealing money from the gang. Jan. 6, 2011 Aff. at ¶ 25. In addition, the wiretap captured a conversation between Merino and Guembes-Lorena on December 21, 2010 about running background checks on current and potential MS-13 gang members. Id. at ¶ 26. In a third conversation, recorded on January 2, 2011, Guembes-Lorena tells Merino he spent the night of New Year's Eve in jail with co-defendant Abraham Iraheta due to a fight with members of the Bloods gang. Id. at ¶ 27. Based on these conversations, Guembes-Lorena was a known suspect in the instant case since January 6, 2011 at the latest.
Guembes-Lorena was not only a suspect in the instant case, but also a known former federal cooperator. Def.'s Br., Ex. C (Excerpts from June 20, 2011 Suppression Hearing, 07-CR-1 16) ("6/20/2011 Tr.") at 47. In fact, Agent Sweeney visited Guembes-Lorena's home on January 21, 2011 to inform him of a threat to his life. 9/7/2011 Tr. at 11:9-15. Despite his knowledge of this information, Agent Sweeney testified in a suppression hearing
Guembes-Lorena was later arrested on February 4, 2011 for an "administrative violation" relating to his immigration status. 6/20/2011 Tr. at 7:19-21, 15:1-9. Following his arrest, Guembes-Lorena was interviewed by Agent Sweeney. 9/7/2011 Tr. at 6:20-10:9. During the interview, Guembes-Lorena admitted to associating with other MS-13 members during his term of supervised release, during which time he had committed multiple crimes and violent assaults with his fellow gang members. Id.
The second set of alleged misrepresentations relates to statements made in the March and April affidavits regarding co-defendant Alex Machado (a/k/a "Negro"). Defendant alleges that two of the Government's affidavits falsely represented that alternative investigative means were unsuccessful because the Government was unable to identify the true name of an MS-13 member known as "Negro." However, one of those two affidavits clearly identified Machado by name in a separate paragraph. In the March affidavit, Agent Sweeney provides a "toll analysis" of Merino's phone, explaining that Merino had used the phone to exchange thirteen "dirty" wire communications with Machado. Mar. 2, 2011 Aff. at ¶¶ 34, 37-38 ("Dirty Telephone # 2, Alex Machado, also known as `Negro'"). The March affidavit clearly indicated the Government was aware that "Negro" was an alias of Alex Machado. Id. Nevertheless, both the March and April affidavits assert alternative investigative means were unsuccessful because CW1 and law enforcement had been unable to verify Machado's name. Id. at ¶ 75 ("[A]lthough CW1 has identified two MS-13 members by their nicknames, `Negro' and `Estrano,' he has not been able to fully identify these individuals, and special agents participating in this investigation have similarly been unable to identify them."); Apr. 1, 2011 Aff. at ¶ 65 (same).
In order to approve a wiretap application, the district court must determine that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c). This statutory language "is simply designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). As the Second Circuit has explained:
United States v. Torres, 901 F.2d 205, 231 (2d Cir. 1990) (internal editing and citation omitted), abrogated on other grounds as recognized by United States v. Marcus, 628 F.3d 36, 41 (2d Cir. 2010). Therefore, to comply with the requirements of 18 U.S.C. § 2518, "[t]he government must demonstrate only that normal investigative techniques would prove difficult, not that they would be doomed to failure." United States v. Scala, 388 F.Supp.2d 396, 404 (S.D.N.Y. 2005) (Kaplan, J.). Furthermore, the Court is mindful that a reviewing court's determination as to whether a wiretap was properly authorized "is not de novo but is limited to determining whether
Defendant moves to suppress all evidence against him flowing from the wiretaps on Merino's phone. Defendant points to the wealth of evidence the Government was able to uncover through alternative investigative techniques, arguing the Government did not satisfy its burden under 18 U.S.C. § 2518. Def.'s Br. at 9-11. Defendant focuses primarily on CW1 and the information he was able to provide to the Government through his association with Merino, the leader of the Flushing MS-13 clique. For example, CW1 recounted or recorded multiple conversations where Merino discussed future assaults, admitted to past assaults, and mentioned the seizure of a firearm from co-defendant Wilber Baires in August 2010. Id. at 10. CW1 also recorded a lengthy gang meeting with a body wire, which resulted in a 182-page transcript. Id. Defendant also points out that several individual members of MS-13 provided incriminating statements to law enforcement before and during the course of the wiretaps. Id. at 9-10. Thus, Defendant argues, "[t]here is no reason to believe that the successful means the government employed would have stopped producing results in the absence of a wiretap." Def.'s Br. at 11.
The Government responds that the "[p]iecemeal information obtained from individual gang members" would not have given the Government access to the full scope of the gang's criminal activities. Gov't Opp. Br. at 17-18; see also Dec. 2, 2010 Aff. at ¶ 48 (stating that the Government was seeking, inter alia, "the full nature, extent and methods of operation of the gang activities" of MS-13 members, both known and unknown, as well as "the identities and roles of accomplices, aiders and abettors, co-conspirators and participants in their illegal activities"). As indicated in Agent Sweeney's affidavits, MS-13 "compartmentalizes aspects of its operations so as to impede law enforcement's ability to identify and dismantle the entire organization." See, e.g., Dec. 2, 2010 Aff. at ¶ 55. Therefore, the Government asserts, alternative investigative techniques were inadequate, as they could only uncover discrete pieces of evidence implicating individual gang members or crimes. While such evidence could lead to successful prosecutions of individual gang members, it would not necessarily allow the Government to dismantle MS-13 as an organization. On the other hand, a wiretap of the Flushing clique leader's phone would yield the type of top-down intelligence necessary to accomplish that goal. Gov't Opp. Br. at 17-18. Defendant responds that under the "full nature, extent and methods" standard propounded by the Government, "the existence of any information beyond investigative intelligence immediately available would justify authorization to intercept communications." Def.'s Reply Br. at 2.
Defendant's argument sweeps too broadly, and the Court concludes there was a substantial basis for the authorizing courts' determination that alternative investigative means were too difficult or dangerous to use in achieving the stated objectives of the investigation.
The use of a wiretap was permissible in this case not because any information was beyond law enforcement's immediate investigative reach—i.e., an argument based on mere expediency—but because normal investigative techniques were incapable of uncovering a specific type of information: operational information privy only to high-level MS-13 members such as Merino. Agent Sweeney's affidavits chronicled in great detail why the use of confidential informants, undercover agents, surveillance, search and arrest warrants, grand jury interviews, witness interviews, pen register data, consensually recorded phone calls, trash inspection, and criminal database checks was of limited value in uncovering the full scope of MS-13's criminal activities. At best, evidence discovered through these techniques would have allowed law enforcement to prosecute individual members of a local chapter of an international criminal gang for gang-related assaults. As Defendant correctly points out, there is no reason to doubt these techniques would have continued to produce results in the absence of a wiretap. But those results would have been of limited value in uncovering the full scope of MS-13's activities and ultimately dismantling the organization.
In Franks v. Delaware, the Supreme Court held that although a presumption of validity attaches to a law enforcement affidavit, the Fourth Amendment entitles a criminal defendant to challenge the veracity of a warrant under certain circumstances. 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Such a challenge may be brought in the context of a wiretap application and authorization under 18 U.S.C. § 2518. United States v. Bianco, 998 F.2d 1112, 1126 (2d Cir. 1993), abrogated on other grounds as recognized by United States v. Rosa, 626 F.3d 56, 57 (2d Cir. 2010). In Franks, the Supreme Court established a two-part test to determine whether a criminal defendant should be entitled to an evidentiary hearing regarding whether the Government provided misleading or false information in a warrant affidavit. 438 U.S. at 171-72, 98 S.Ct. 2674. First, the defendant must make "allegations of deliberate falsehood or of reckless disregard for the truth," and those allegations "must be accompanied by an offer of proof." Id. at 171, 98 S.Ct. 2674. Second, even if those requirements are met, "if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required." Id. at 171-72, 98 S.Ct. 2674.
In the context of the Franks doctrine, "[a] misrepresentation or omission is intentional when the claimed inaccuracies or omissions are the result of the affiant's deliberate falsehood or reckless disregard for the truth." United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003) (internal quotation marks and citation omitted). "A false statement is material when the alleged falsehoods or omissions were necessary to the issuing judge's probable cause finding." United States v. Martin, 426 F.3d 68, 73 (2d Cir. 2005) (internal quotation marks, editing, and citation omitted). "[T]he ultimate inquiry is whether, after putting aside erroneous information and material omissions, there remains a residue of independent and lawful information sufficient to support probable cause." Id. at 74 (internal quotation marks, citation, and editing omitted). "A judge's probable-cause determination is not overly strict." Id. When presented with a warrant, the court must "simply ... make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ..., there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
Second, Defendant takes issue with statements in the March and April 2011 affidavits that law enforcement had been unable to determine the true name of an MS-13 gang member known as "Negro." Elsewhere in the affidavits, Agent Sweeney notes the Government had identified Negro as Alex Machado, and recorded Merino speaking with Machado about criminal activity. Although the Government's stated inability to identify "Negro" is contradicted by the identification noted elsewhere, this "misrepresentation" also does not call for a Franks hearing. The December 2010, January 2011, and February 2011 affidavits all contain the same statement regarding law enforcement's inability to determine Negro's identity. Dec. 2, 2010 Aff. at ¶ 67, Jan. 6, 2011 Aff. at ¶ 75, Feb. 3, 2011 Aff. at ¶ 74. Under these circumstances, the Court finds it unlikely that the inclusion of the statement in the March and April 2011 affidavits was a calculated effort to mislead the Court. Instead, the inclusion of the erroneous statement regarding law enforcement's inability to determine Negro's true name appears to have been an unfortunate oversight in updating prior versions of the affidavit—a failure to account for new facts learned in the course of the investigation. This isolated mistake does not constitute an intentional or reckless falsehood.
Even assuming arguendo that Agent Sweeney's misrepresentation in the March and April 2011 affidavits was intentional or reckless, Defendant has not shown the falsehood was "necessary to the issuing judge's probable cause finding." Martin, 426 F.3d at 73 (internal editing omitted). The inability to learn Negro's identity was but one of many reasons cited in the affidavits as to why alternative investigative techniques were inadequate to achieve the goals of the investigation. There is no reason to believe Judge Weinstein would not have granted the Government's applications to extend the wiretap in March and April 2011 absent the single sentence regarding the Government's inability to learn Negro's true name. By contrast, had Defendant pointed to inconsistencies regarding crucial statements such as Agent Sweeney's representation that CW1 "does not hold a high-level leadership position in MS-13, and thus is not privy to
Pursuant to Rule 16 of the Federal Rules of Criminal Procedure, Defendant seeks the following material from the Government:
Def.'s Br. at 13-14.
Rule 16 of the Federal Rules of Criminal Procedure states, in pertinent part, that upon a defendant's request, "the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and ... the item is material to preparing the defense." Fed.R. Crim.P. 16(a)(1)(E)(i).
Defendant argues he is entitled to the material listed above because it is necessary in order to prepare his defense with respect to two related issues: (1) whether alternative investigative techniques were indeed inadequate, justifying the authorization of the wiretap on Merino's phone; and (2) whether the Government provided misleading or false information that was material to the authorizing court's decision to authorize the wiretap, potentially calling for a Franks hearing. Def.'s Br. at 15. Specifically, Defendant argues the February 4, 2011 arrest of Guembes-Lorena and his post-arrest statements undermine Agent Sweeney's claim that arrests were premature. Id. Defendant also asserts incident reports relating to the September 24, 2010 stabbing and the failed September 29, 2010 assault would aid the defense in showing law enforcement was successful in gathering information through alternative investigative means prior to resorting to the wiretap. Id.
However, Rule 16(a)(2) of the Federal Rules of Criminal Procedure limits the information that a criminal defendant is entitled to receive. The rule states:
Fed.R. Crim.P. 16(a)(2). The plain language of Rule 16(a)(2) shields the Government from producing arrest or incident reports prepared by local or federal law enforcement. Furthermore, case law interpreting Rule 16(a)(2) is legion and overwhelmingly refutes Defendant's argument that he is entitled to the discovery material listed above.
"[I]n a federal prosecution based in part upon the investigative efforts of local or state law enforcement agents, Rule 16(a)(2) bars disclosure of reports generated by such agents; and ... it makes no difference whether the local or state agents generated their reports as part of an independent investigation or during the course of a joint federal operation." United States v. Cherry, 876 F.Supp. 547, 551 (S.D.N.Y. 1995) (Haight, J.). Therefore, any incident or arrest reports generated by law enforcement in connection with the case at hand, whether federal or local, are protected from disclosure under Rule 16(a)(2). See United States v. Koskerides, 877 F.2d 1129, 1133-34 (2d Cir. 1989) (protecting IRS agent's tax report from discovery on the ground that "reports, memoranda, or other internal government documents made by ... government agents in connection with the investigation or prosecution of the case are not subject to disclosure"); United States v. Feola, 651 F.Supp. 1068, 1142-43 (S.D.N.Y. 1987) (Brieant, J.) (DEA investigative files and interview reports protected from discovery), aff'd, 875 F.2d 857 (2d Cir. 1989) (mem.); Cherry, 876 F.Supp. at 551; United States v. Jenkins, No. 02 CR. 1384, 2003 WL 1461477, at *5 (S.D.N.Y. Mar. 21, 2003) (Casey, J.) (reports produced by local law enforcement agents protected from discovery). Defendant's Rule 16 motion for disclosure of those materials is therefore denied with prejudice.
Furthermore, the Second Circuit held long ago that "Rule 16(a) simply does not encompass [the statements of co-conspirators], nor does the Jencks Act [18 U.S.C. § 3500] permit their disclosure over the objection of the government." United States v. Percevault, 490 F.2d 126, 131 (2d Cir. 1974). The ambit of Rule 16 is far narrower and only entitles Defendant to disclosure of statements he himself made. See United States v. Mannino, 480 F.Supp. 1182, 1187 (S.D.N.Y. 1979) (Sweet, J.) ("[T]here is no basis in Rule 16 or in the reported decisions for disclosure of statements other than those made by the defendant or of documentary materials concerning the circumstances of any non-consensual recording [of the defendant]."); see also United States v. Taylor, 707 F.Supp. 696, 701 (S.D.N.Y. 1989) (Kram, J.) (statements of co-conspirators not subject to discovery if government does not intend to introduce such statements at trial, unless statements fall within Brady doctrine); United States v. Marquez, No. 91 CR 451, 1992 WL 88139, at *5 (S.D.N.Y. Apr. 22, 1992) (Kram, J.) ("Under Second Circuit law, the defendant is not entitled to other co-conspirator statements."); United States v. Morales, No. 93 Cr. 291, 1993 WL 465209, at *13 (S.D.N.Y. Nov. 15, 1993) (Conboy, J.) (denying motion for discovery of all prior statements of government witnesses, co-defendants, and unindicted co-conspirators). Accordingly, Defendant's discovery request for statements made to law enforcement by co-defendants or other individuals referenced in the affidavits regarding the charges, the defendants, or MS-13 is denied with prejudice.
It is well established that the Government must produce "evidence favorable to
However, Defendant's motion to compel the Government to produce Brady material is premature. The Second Circuit has held that "a rule that makes the timing of disclosure [of Brady materials] dependent on the defendant's demand is directly contrary to the principle that a prosecutor's Brady obligation is independent of a defendant's request for Brady materials." United States v. Coppa, 267 F.3d 132, 144 (2d Cir. 2001) (citing United States v. Bagley, 473 U.S. 667, 682-83, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)); see also United States v. Gustus, No. 02 CR. 888, 2002 WL 31260019, at *2 (S.D.N.Y. Oct. 8, 2002) (Swain, J.) ("[I]t is the Government's responsibility to determine what evidence is material and when such evidence should be disclosed in time for its effective use."). Ultimately, the guiding principle with respect to the timing of the Government's Brady disclosures states that
Coppa, 267 F.3d at 144. Defendant has neither asserted nor shown that failure to disclose any Brady material at this particular time would be prejudicial to his defense.
Furthermore, not only does the Government indicate that it "is not aware of any Brady material in victim reports or otherwise," but the Government also states it "understands its Brady obligations and will continue to comply with them." Gov't Opp. Br. at 26, n. 15. Because "the Government has made a good faith representation to the Court and defense counsel that it recognizes and has complied with its Brady disclosure obligations," the motion to compel the Government to provide Brady material is denied without prejudice as premature. United States v. Messina, No. 11-CR-31, 2012 WL 463973, at *12 (E.D.N.Y. Feb. 13, 2012) (Matsumoto, J.).
Defendant seeks a bill of particulars from the Government, pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, with respect to Racketeering Act One and Count Four of the Indictment, both of which charge Defendant with participating in a conspiracy to murder members of a rival gang, the OFC. Def.'s Br. at 17-18. Both Racketeering Act One and Count Four allege that "[i]n or about and between July 2009 and the date of this Indictment," December 30, 2011, Defendant and co-defendants Iraheta and Merino, together with others, conspired to murder "one or more other persons, to wit: members of a set of the rival Original Flushing Crew gang, located in Flushing, New York." Indictment, Dkt. No. 1, at ¶¶ 8, 19. Though Defendant does not explicitly define the particulars he is seeking, it appears he seeks particulars as to (1) the identities of the unnamed victims of the alleged conspiracy to murder, (2) the identities of the unnamed co-conspirators, and (3) the specific dates of the conspiracy.
Courts in this Circuit are divided on the question of when the Government should be required to identify alleged co-conspirators in a bill of particulars. United States v. Urso, 369 F.Supp.2d 254, 273 (E.D.N.Y. 2005) (Garaufis, J.) ("[T]here is no clear line dividing cases in which courts have mandated disclosure from those in which courts have declined to issue such orders."); see also United States v. Nachamie, 91 F.Supp.2d 565, 572 (S.D.N.Y. 2000) (Scheindlin, J.) ("A review of the case law in this district reveals no clear distinction among circumstances in which courts grant a request for the names of unknown unindicted co-conspirators and circumstances in which they do not."). Nevertheless, there is a common thread running through cases where courts have granted disclosure: "the identities of unindicted co-conspirators have been disclosed primarily in cases in which violence was not alleged." United States v. Santiago, 174 F.Supp.2d 16, 35 (S.D.N.Y. 2001) (Marrero, J.). And where courts have granted disclosure in cases involving allegations of violent crime, "there were other factors that convincingly militated in favor of disclosure," such as "the large number of defendants charged," "the large number of schemes alleged," "the wide-ranging nature of the predicate acts," and "the voluminous discovery." Id. at 35-36. By contrast, "identifying alleged co-conspirators in a bill of particulars is inappropriate in cases where the defendant is charged with `extreme acts of violence' in order to protect the government's investigation and the safety of unindicted co-conspirators." Wilson, 493 F.Supp.2d at 372.
Because extreme acts of violence are alleged in this case, the Court adopts the same position taken by the Hon. Nicholas
Likewise, the Court denies with prejudice Defendant's motion for a bill of particulars as to the specific dates of the conspiracy. "As a general rule, a defendant is not entitled to receive details of the government's conspiracy allegations in a bill of particulars." Id. (denying motion for bill of particulars as to "the dates on which [defendant] and his codefendants allegedly joined the racketeering enterprise and related conspiracies, and the date(s) and location(s) of any related meetings [defendant] attended, the dates [defendant] and the other defendants last participated in the conspiracies, and the nature of overt acts" committed in furtherance of the conspiracies). "Details regarding the date on which the conspiracy was formed, or when each participant entered into the conspiracy need not be revealed before trial." Id. (citations omitted). Moreover, the Indictment sets forth the approximate dates during which Defendant allegedly conspired to kill members of the OFC— between July 2009 and December 30, 2011. MS-13 membership allegedly carries with it a standing obligation to assault or murder members of rival gangs whenever possible, and members of the MS-13 clique in Queens have long been engaged in street wars with members of the OFC. Gov't Opp. Br. at 1-2. Therefore, it is unsurprising that Defendant and other fellow gang members would allegedly conspire to kill members of the OFC over a period of time rather than on discrete dates. Because the Government has no obligation to disclose the details of its conspiracy allegations with respect to specific dates, and because the Indictment already adequately informs Defendant of the date range of the murder conspiracy, Defendant's motion for a bill of particulars as to the dates of the conspiracy is denied with prejudice.
Finally, the Court, in its sound discretion, denies with prejudice Defendant's motion for a bill of particulars as to the identities of the unnamed victims of the alleged murder conspiracy. A bill of particulars is required only where the "charges of an indictment are so general that they do not advise the defendant of the specific acts of which he is accused." Chen, 378 F.3d at 163. Here, the Indictment explains the intended victims of the murder conspiracy were members of the rival OFC gang, during a time when the OFC and MS-13 were engaged in an ongoing street war. Just as the Government is not obligated to disclose the specific dates of the murder conspiracy, the Government need not disclose the names of the murder conspiracy's intended victims in order for Defendant to be adequately apprised of the specific crimes of which he is accused. See Perryman, 881 F.Supp.2d at 430-31 (bill of particulars unwarranted, even where indictment did not disclose name of intended victim of gang-related murder conspiracy). This is especially true in this
Defendant fails to cite any controlling authority to the contrary. Defendant's lead case on this point is United States v. Davidoff, in which the Second Circuit found the trial court had exceeded its discretion in a RICO prosecution "by denying a bill of particulars identifying ... least the victims of discrete extortionate schemes that the prosecution intended to prove." 845 F.2d 1151, 1154 (2d Cir. 1988). In Davidoff, the defendant was charged with racketeering based on various predicate extortion schemes leveled against companies named in the indictment. Id. The district court declined to direct the Government to specify, prior to trial, any extortion schemes beyond those specified in the indictment. Id. At trial, the defendant was "confronted with evidence of extortions aimed at entirely different companies," none of them named in the indictment or otherwise disclosed prior to trial. Id. Therefore, the Second Circuit reversed the district court's denial, reasoning it was "simply unrealistic to think that a defendant preparing to meet charges of extorting funds from one company had a fair opportunity to defend against allegations of extortions against unrelated companies, allegations not made prior to trial." Id.
By contrast, in this case, there is no indication the Government intends to prove allegations of murder conspiracies other than those alleged in the Indictment. Moreover, as to the murder conspiracy alleged in Racketeering Act One and Count Four, the Indictment fairly informs Defendant that the Government intends to prove Defendant conspired with co-defendants Iraheta and Merino to murder members of the OFC between July 2009 and December 30, 2011, which information should allow Defendant to adequately prepare his defense. Under these circumstances, and especially given the aforementioned concerns regarding MS-13's reputation for violence, it would be inappropriate at this time to order the Government to disclose the names of the intended victims of the murder conspiracy. See Perryman, 881 F.Supp.2d at 430-31.
Furthermore, the Government has represented that, as the trial date approaches, it will file a Rule 404(b) motion setting out "other crime" evidence, as well as "further particularization regarding acts that were in furtherance of [the murder] conspiracy that are not described specifically in the indictment." Tr. of Oral Arg., Dkt. No. 142, at 24:9-15. "This concession by the Government goes far beyond its obligation at this point in this case" and serves to allay concerns that Defendant will be unable to adequately prepare his defense prior to trial. Perryman, 881 F.Supp.2d at 430.
The Court also notes that Defendant failed to move for a bill of particulars within fourteen days of his arraignment, as required by Rule 7(f) of the Federal Rules of Criminal Procedure.
For the reasons discussed above, Defendant's motions are denied. The Court DENIES WITH PREJUDICE Defendant's motions to suppress evidence derived
