Opinion
1:19-CR-00155 EAW
2021-06-18
UNITED STATES of America, v. Jariel COBB a/k/a Doobie a/k/a Black, James Reed a/k/a Fatts, Jahaan McDuffie a/k/a Wanka, Destenee Bell a/k/a K, Deandre Wilson a/k/a D, and Deshema Clark, Defendants.
Brendan T. Cullinane, U.S. Attorney's Office, Buffalo, NY, for USA. Alan S. Hoffman, Buffalo, NY, for Defendants.
Brendan T. Cullinane, U.S. Attorney's Office, Buffalo, NY, for USA.
Alan S. Hoffman, Buffalo, NY, for Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
A second superseding indictment returned on August 26, 2020, charges all of the defendants in the above-captioned matter with drug trafficking crimes, and some of the defendants with offenses arising out of the deaths of Miguel Anthony Valentin-Colon, Nicole Marie Merced-Plaud, and Dhamyl Roman-Audiffred, on or about September 15, 2019. (Dkt. 106). Pending before the Court are certain pretrial motions filed by some of the defendants. This Decision and Order addresses those pending motions and grants some of the relief sought, denies some of the relief, and otherwise reserves decision.
BACKGROUND
This action was commenced by the filing of a criminal complaint on March 22, 2019, against defendant Deanna Olbert ("Olbert"). (Dkt. 1). On July 24, 2019, a two-count indictment was returned against Olbert, charging her with drug trafficking crimes. (Dkt. 9). Two months later, on September 25, 2019, a two-count superseding indictment was returned alleging drug trafficking crimes and adding defendants James Reed a/k/a Fatts ("Reed"), Jariel Cobb a/k/a Doobie a/k/a Black ("Cobb"), Jahaan McDuffie a/k/a Wanka ("McDuffie"), and Destenee Bell a/k/a K ("Bell") . (Dkt. 14). Almost one year later, on August 26, 2020, a second superseding indictment was returned significantly expanding upon the charges to include additional drug trafficking crimes and offenses related to the murders on September 15, 2019. (Dkt. 106). Additionally, defendants Deandre Wilson a/k/a D ("Wilson") and Deshema Clark ("Clark") were added as defendants. The second superseding indictment contains the following counts against the following defendants:
The second superseding indictment spells Bell's first name as "Destenee" but in the affidavit that she recently filed she spells her first name "Destanee." (See Dkt. 235).
The initially-charged defendant, Olbert, was not included as a defendant in the second superseding indictment, as she had entered into a plea agreement with the government on or about June 18, 2020. (Dkt. 91; Dkt. 92).
| COUNT | CHARGE | DEFENDANTS |
|---|---|---|
| Count 1 | Narcotics Conspiracy in violation of 21 U.S.C. § 846 | Cobb, Bell, Wilson, Clark, Reed, McDuffie |
| Count 2 | Distribution of 100 kilograms or more of Marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2 | Cobb, Bell, Reed, McDuffie |
| Count 3 | Distribution of 1 kilogram or more of Heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2 | Cobb, Bell, Reed, McDuffie |
| Count 4 | Distribution of 5 kilograms or more of Cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2 | Cobb, Reed |
| Count 5 | Maintaining a Drug-Involved Premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 | Cobb, Bell, Reed |
| Count 6 | Maintaining a Drug-Involved Premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 | Cobb, Bell, Reed |
| Count 7 | Possession with Intent to Distribute 500 grams or more of Cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2 | Cobb, Reed |
| Count 8 | Hobbs Act Conspiracy in violation of 18 U.S.C. § 1951(a) | Cobb, Wilson |
| Count 9 | Hobbs Act Robbery in violation of 18 U.S.C. §§ 1951(a) and 2 | Cobb, Wilson |
| Count 10 | Murder while engaged in a Narcotics Conspiracy in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2 | Cobb, Wilson |
| Count 11 | Discharge of Firearm in furtherance of Crime of Violence and Drug Trafficking Crimes in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2 | Cobb, Wilson |
| Count 12 | Discharge of Firearm causing Death in furtherance of Crime of Violence and Drug Trafficking Crimes in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j)(1) and 2 | Cobb, Wilson |
| Count 13 | Discharge of Firearm causing Death in furtherance of Crime of Violence and Drug Trafficking Crimes in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j)(1) and 2 | Cobb, Wilson |
| Count 14 | Conspiracy to Obstruct Justice in violation of 18 U.S.C. § 1512(k) | Cobb, Wilson, Reed |
| Count 15 | Obstruction of Justice in violation of 18 U.S.C. §§ 1512(c)(1) and 2 | Cobb, Wilson |
| Count 16 | Obstruction of Justice in violation of 18 U.S.C. §§ 1512(c)(1) and 2 | Cobb, Wilson, Reed |
| Count 17 | Conspiracy to Use Fire to Commit a Felony in violation of 18 U.S.C. §§ 844(m) and 2 | Cobb, Wilson, Reed |
| Count 18 | Use of Fire to Commit a Felony in violation of 18 U.S.C. §§ 844(h) and 2 | Cobb, Wilson |
| Count 19 | Use of Fire to Commit a Felony in violation of 18 U.S.C. §§ 844(h) and 2 | Cobb, Wilson, Reed |
| Count 20 | Conspiracy to Damage and Destroy a Vehicle Used in Interstate Commerce by Fire in violation of 18 U.S.C. §§ 844(n) and 2 | Cobb, Wilson |
| Count 21 | Damaging and Destroying a Vehicle Used in Interstate Commerce by Fire in violation of 18 U.S.C. §§ 844(i) and 2 | Cobb, Wilson |
| Count 22 | Accessory After the Fact in violation of 18 U.S.C. § 3 | Reed |
| Count 23 | Maintaining a Drug-Involved Premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 | Wilson, Clark |
| Count 24 | Possession with Intent to Distribute Marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) and 18 U.S.C. § 2 | Wilson, Clark |
Between February 24 and 26, 2021, pursuant to the scheduling order set by the undersigned (Dkt. 166), pretrial motions seeking various forms of relief were filed by Wilson (Dkt. 186), Cobb (Dkt. 190), Clark (Dkt. 189), and Bell (Dkt. 187). On March 12, 2021, the government filed notice that the Attorney General of the United States had authorized and directed that the death penalty not be sought against Cobb or Wilson. (Dkt. 192; Dkt. 193). That same day, a status conference was held before the undersigned, and the Court set a deadline for the filing of any supplemental pretrial motions. (Dkt. 194; Dkt. 196).
Consistent with the Court's scheduling order, Wilson filed a supplemental pretrial motion on March 31, 2021 (Dkt. 203) and Cobb filed a supplemental motion on April 1, 2021 (Dkt. 208; Dkt. 210). The government filed opposition papers responding to the pretrial motions on April 30, 2021, and May 3, 2021. (Dkt. 213 (response to Bell's motions); Dkt. 214 (response to Wilson's motions); Dkt. 215 (response to Clark's motions); Dkt. 216, Dkt. 217, Dkt. 219 (responses to Cobb's motions)). Wilson, Clark and Cobb filed reply papers in further support of their motions (Dkt. 222 (Wilson reply); Dkt. 224 (Clark reply), Dkt. 223, Dkt. 226 (Cobb reply)). Oral argument was held before the undersigned on May 20, 2021, at which time the Court reserved decision on the pending motions. (Dkt. 229). By email communication, the Court requested and received further briefing from the government and Cobb on certain aspects of his motion that were filed under seal. (Dkt. 233). Moreover, Bell filed a supplemental submission in support of her request for the search warrant application related to her residence and vehicle. (Dkt. 235).
DISCUSSION
For the reasons discussed in detail below, the Court grants some of the requested relief, denies other aspects of the requested relief, and otherwise reserves decision.
I. Motions for Severance
A. Standard for Severance under Rule 14
Pursuant to Rule 14, "[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires." Fed. R. Crim. P. 14(a). The decision to sever a trial pursuant to Rule 14 is "confided to the sound discretion of the trial court." United States v. Feyrer , 333 F.3d 110, 114 (2d Cir. 2003). A trial court's decision concerning severance is considered "virtually unreviewable," and the denial of such a motion "will not be reversed unless appellants establish that the trial court abused its discretion." United States v. Cardascia , 951 F.2d 474, 482 (2d Cir. 1991) (citations and quotations omitted). In order to successfully challenge the denial of a request for severance, a defendant "must establish prejudice so great as to deny him a fair trial." Id. "It is well established that a defendant cannot avoid the risks of a joint trial simply because he might have a better chance of acquittal in a separate trial." United States v. Figueroa , 618 F.2d 934, 944 (2d Cir. 1980).
The party requesting severance must demonstrate substantial prejudice: "When defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." United States v. Astra Motor Cars , 352 F. Supp. 2d 367, 369-70 (E.D.N.Y. 2005) (alteration omitted and quoting Zafiro v. United States , 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) ); see also United States v. Friedman , 854 F.2d 535, 563 (2d Cir. 1988) ("[T]he defendant must show that he or she suffered prejudice so substantial as to amount to a ‘miscarriage of justice.’ "). "[D]iffering levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials." United States v. Chang An-Lo , 851 F.2d 547, 557 (2d Cir. 1988) (citation omitted). "That the defendant would have had a better chance of acquittal at a separate trial does not constitute substantial prejudice." United States v. Carson , 702 F.2d 351, 366 (2d Cir. 1983). Rather, there is a powerful presumption in favor of joint trials of defendants indicted together based upon the underlying policies of efficiency, avoiding inconsistent verdicts, providing a "more accurate assessment of relative culpability," avoiding victims and witnesses having to testify repeatedly, and avoiding the random favoring of "the last-tried defendants who have the advantage of knowing the prosecutor's case beforehand." Richardson v. Marsh , 481 U.S. 200, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) ; see also United States v. Spinelli , 352 F.3d 48, 55 (2d Cir. 2003) ("[c]onsiderations of efficiency and consistency militate in favor of trying jointly defendants who were indicted together...." (citations omitted)); Cardascia , 951 F.2d at 482 ("The deference given by an appellate court to a trial court's severance decision reflects the policy favoring joinder of trials, especially when the underlying crime involves a common plan or scheme and defendants have been jointly indicted.").
B. Wilson Motion for Severance
Wilson seeks severance as follows: (1) severance of his trial from the defendants charged in counts two through seven based on a claim of unfair prejudice (Dkt. 186 at 4-6); (2) severance of his trial from that of Cobb and Reed on the ground that there may be mutually antagonistic arguments of mitigation during the potential penalty phase of the trial (id. at 6-7); and (3) severance of the capital counts from the non-capital counts (id. at 7-8). Wilson's arguments for severance of his trial from that of Cobb and Reed because of potentially mutually antagonistic arguments during the penalty phase, and his arguments for severance of the capital counts from the non-capital counts, have been rendered moot by the government's decision not to seek the death penalty in this case. Accordingly, Wilson's severance motion based on grounds two and three are denied as moot.
With respect to the first ground for Wilson's severance motion—seeking a severance from the "substantive drug count defendants"—the motion is denied. Cobb, Reed, McDuffie, and Bell are charged in one or more of the substantive drug counts set forth in counts two through seven. (Dkt. 106 at 3-6). Those counts charge substantive drug trafficking crimes related to marijuana, heroin, and cocaine. The narcotics conspiracy charged in count one—in which Wilson is named as a defendant—similarly allegedly involves marijuana, heroin and cocaine, and encompasses the time periods at issue in the substantive drug counts. (Id. at 1-2). Wilson does not argue that the counts are improperly joined. Rather, he bases his severance motion on unfair prejudice and moves pursuant to Rule 14. (Dkt. 186 at 5). However, Wilson's motion contains only conclusory allegations of prejudice. The Court would be hard-pressed to find prejudice from trying a defendant alleged to be involved in a narcotics conspiracy with his alleged co-conspirators who also are charged in substantive drug counts, and the record here certainly does not support such a finding. See , e.g. , United States v. Bin Laden , 109 F. Supp. 2d 211, 216 (S.D.N.Y. 2000) (denying request to sever trial of defendants charged only in conspiracy from trial of defendants also charged in substantive offenses, explaining that "adequate protections exist, or can be designed, to prevent any undue prejudice to the moving Defendants from being joined for trial with those Defendants charged with substantive offenses"), aff'd sub nom. In re Terrorist Bombings of U.S. Embassies in E. Afr. , 552 F.3d 93 (2d Cir. 2008).
Defense counsel all conceded at oral argument that they were not arguing improper joinder with respect to any of the counts. (See Dkt. 230 at 68). If a defendant had challenged the joinder of counts, it likely would have been made pursuant to Federal Rule of Criminal Procedure 8(b). Second Circuit "cases indicate that when a defendant in a multiple-defendant case challenges joinder of offenses, his motion is made under 8(b) rather than 8(a)." United States v. Turoff , 853 F.2d 1037, 1043 (2d Cir. 1988) (internal quotations and citation omitted). This means that the acts alleged in the separate counts "must be ‘unified by some substantial identity of facts or participants,’ or ‘arise out of a common plan or scheme.’ " United States v. Attanasio , 870 F.2d 809, 815 (2d Cir. 1989) ; cf. United States v. Pizarro , No. 17-CR-151 (AJN), 2018 WL 1737236, at *3 (S.D.N.Y. Apr. 10, 2018) (if a defendant in a multi-defendant case seeks severance of counts in which he is the only defendant charged, "the Second Circuit has signaled that ‘Rule 8(a) standards apply....’ ") (quoting United States v. Biaggi , 909 F.2d 662, 676 (2d Cir. 1990) ). Of course, pursuant to the express language of Federal Rule of Criminal Procedure 8(b), "defendants may be charged in one or more counts together or separately" and "[a]ll defendants need not be charged in each count."
C. Cobb Motion for Severance
Cobb moves for a severance based on three separate grounds. The first ground is sealed and the Court concludes that a determination on that ground is premature, as no trial date has yet been set and the landscape of any trial—including the defendants who remain—is unclear at this stage. Thus, the Court denies that aspect of Cobb's motion with leave to renew at a time closer to trial. See , e.g. , United States v. Heatley , No. S2 96 Cr. 515, 1997 WL 12961, at *2 (S.D.N.Y. Jan. 14, 1997) (Sotomayor, J.) (denying motion to sever as premature with leave to renew before trial and collecting similar cases).
The second and third grounds for Cobb's severance motion are as follows: (1) his alleged statements to the government necessitate severance pursuant to Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (Dkt. 208-7 at 23-25); and (2) the anticipated time he needs to review discovery necessitates a severance (id. at 25-27).
In Bruton , the Supreme Court held that a defendant is deprived of his Sixth Amendment right to confrontation when the facially incriminating confession of a non-testifying co-defendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the co-defendant. 391 U.S. at 126, 88 S.Ct. 1620. However, in Richardson v. Marsh , 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the Supreme Court limited the scope of Bruton , concluding that the Bruton doctrine applies to a co-defendant confession that is "incriminating on its face." Id. at 208, 107 S.Ct. 1702. Furthermore, because "[t]he [Confrontation] Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted," Crawford v. Washington , 541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the admission of a non-testifying co-defendant's confession does not implicate the confrontation rights of the trial defendant when offered for a non-hearsay purpose, Tennessee v. Street , 471 U.S. 409, 413, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985) ; see United States v. DeVillio , 983 F.2d 1185, 1193-94 (2d Cir. 1993) (no Bruton violation where "the statements at issue fall within the purview of Rule 801(d)(2)(E) and were admissible as statements made ‘in furtherance of’ the conspiracy"). Additionally, "a non-obvious redaction of a co-defendant's confession to eliminate any references to the defendant will eliminate any Bruton problem." United States v. Lyle , 856 F.3d 191, 203 (2d Cir. 2017) (citing Gray v. Maryland , 523 U.S. 185, 195-97, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998) ; Richardson , 481 U.S. at 208-09, 107 S.Ct. 1702 ), vacated on other grounds , ––– U.S. ––––, 138 S. Ct. 2024, 201 L.Ed.2d 276 (2018).
The government contends that there is no basis to sever based on Bruton concerns. (Dkt. 217 at 22-23). Like the first ground for Cobb's motion, the Court concludes that it is premature to resolve a severance motion at this stage based on Bruton , as it is not even clear what statements, if any, the government will seek to introduce at trial. Accordingly, the Court denies this aspect of Cobb's motion without prejudice and with leave to renew at a time closer to trial. See , e.g. , United States v. Mirilishvili , No. 14 Cr. 810( ), 2015 WL 5820966, at *15 (S.D.N.Y. Oct. 2, 2015) (denying motion to sever without prejudice to renewal closer to the date of trial, where basis for severance motion was Bruton because the trial was still five months away, and it was unclear which defendants would actually go to trial and which, if any, statements the government might seek to introduce that would create a Bruton issue).
Unlike the first two grounds, the Court is able to resolve the third ground of Cobb's motion, and the severance motion on that basis is denied. Cobb bases this aspect of his motion on Rule 14, and argues that it will take considerable time for him to review the voluminous discovery and "[h]is Sixth Amendment right to prepare and present a defense necessitates that he be given sufficient time to complete this review." (Dkt. 208-7 at 26-27). However, a trial date has not been set, and given the outstanding issues with respect to both Cobb's and the other co-defendants’ motions, it will take some time before the case is ready for trial. Moreover, while as Cobb points out the discovery may not need to be reviewed by the co-defendants who are not charged with the murders or the Hobbs Act counts (id. at 27), there is no reason that at least some of the co-defendants may not need to engage in the same discovery review as Cobb, and thus this reason is not a sufficient basis to sever Cobb.
D. Bell and Clark Motions for Severance
Bell cites to Bruton in support of her severance motion, although she does not provide any specifics as to this argument. (Dkt. 187 at ¶ 5). Bell also argues that severance is warranted based on the danger of spillover prejudice in being tried with co-defendants who are charged with more violent crimes, including murder. (Id. at ¶¶ 16-21). Similarly, Clark seeks a severance on the basis of general claims concerning Bruton and unfair prejudice. (Dkt. 189-1 at ¶¶ 32-41). Simply being joined in an indictment with co-defendants who are charged with more serious crimes—even murder—does not ordinarily justify granting a severance, and the Court is skeptical that it would grant a severance based on the claims of prejudice made by Bell and Clark. Certainly, the current record does not support a severance. Nonetheless, because of the early stages of this proceeding, the motions for severance filed by Bell and Clark are denied without prejudice with leave to renew at a time closer to trial.
II. Motions for Bills of Particulars
A. Legal Standard
Pursuant to Fed. R. Crim. P. 7(f), a defendant may seek a bill of particulars "in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Bortnovsky , 820 F.2d 572, 574 (2d Cir. 1987). A bill of particulars amplifies the pleading (i.e. the indictment), and therefore, the Government will be "strictly limited to proving what it has set forth in it." United States v. Germain , 33 Fed. App'x 565, 566 (2d Cir. 2002) (quoting United States v. Glaze , 313 F.2d 757, 759 (2d Cir. 1963) ). As a result, a bill of particulars should not be substituted for a form of discovery—it "should not function to disclose evidence, witnesses, and legal theories to be offered by the Government at trial or as a general investigative tool for the defense." United States v. Henry , 861 F. Supp. 1190, 1197 (S.D.N.Y. 1994). As explained by the Second Circuit:
While a bill of particulars is not intended, as such, as a means of learning the government's evidence and theories, if necessary to give the defendant enough information about the charge to prepare his defense, it will be required even if the effect is disclosure of evidence or of theories. A district court judge, however, has the discretion to deny a bill of particulars if the information sought by defendant is provided in the indictment or in some acceptable alternate form.
United States v. Barnes , 158 F.3d 662, 665 (2d Cir. 1998) (internal quotation marks and citations omitted). "The granting of a bill of particulars rests within the sound discretion of the district court." United States v. Strawberry , 892 F. Supp. 519, 526 (S.D.N.Y. 1995).
B. The Defendants’ Requests
Cobb seeks a bill of particulars with respect to counts one, two, three, four, seven, eleven, twelve, and thirteen. (Dkt. 190-2 at 5-8). For count one, Cobb seeks information concerning the place that Cobb allegedly agreed to use and maintain for the purposes of the charged conduct, as well as the place where he allegedly agreed to possess with intent to distribute and to distribute each of the alleged drugs. (Id. at 5). Cobb also seeks the date when he allegedly entered into the agreement. (Id. ). For counts two, three, four and seven, Cobb seeks the place where he allegedly possessed with intent to distribute, and distribute, the drugs at issue, and for counts two, three, and four he also seeks the dates he purportedly engaged in the charged conduct. (Id. at 5-7). For counts eleven, twelve, and thirteen, Cobb seeks the identity of the firearms, where they were used, and for count eleven when it was used. (Id. at 7-8).
Wilson seeks a bill of particulars with respect to the narcotics conspiracy charged in count one, ranging from the identity of all co-conspirators (including any unindicted co-conspirators), the specifics regarding any conspiratorial agreement, when each individual joined the conspiracy and left it, all uncharged overt acts undertaken by any co-conspirator including Wilson, the exact weight of all controlled substances involved in the conspiracy, and Wilson's role in the conspiracy. (Dkt. 186 at 34-35). Clark seeks a bill of particulars with respect to each of the counts with which she is charged, asking for information ranging from each overt act that the government intends to prove concerning her conduct to the identity of any individual present for the overt act. (Dkt. 189 at 4-5).
The government responds to the motions for bills of particulars contending that the second superseding indictment, combined with the voluminous discovery produced in this case, is more than sufficient to apprise the defendants as to the pending charges and that a bill of particulars is not warranted here. (Dkt. 214 at 23-25; Dkt. 215 at 3-6; Dkt. 216 at 5-7).
For the most part, the Court agrees with the government that the defendants have not met their burdens to establish the need for bills of particulars in this case. While reciting a litany of information that they desire, the defendants fail to articulate why a bill of particulars is essential, instead citing in a conclusory form the legal standard for a bill of particulars. The defendants’ requests seek evidentiary detail that is outside the scope of a bill of particulars. For instance, with the requests related to the narcotics conspiracy charged in count one, "courts almost uniformly have denied demands for bills of particulars regarding the formation of a conspiracy." United States v. Davidson , No. 92-CR-35, 1992 WL 402959, at *2 (N.D.N.Y. Dec. 16, 1992) (collecting cases). Likewise, "criminal defendants are not automatically entitled to identification of co-conspirators ... [and o]ther details of a conspiracy, including requests for ‘the nature of the "wheres, whens, and with whoms" ’ of a conspiracy, are frequently ‘held to be beyond the scope of a bill of particulars.’ " United States v. Raniere , 384 F. Supp. 3d 282, 322 (E.D.N.Y. 2019) (citations omitted). "Similarly, ‘[t]here is no general requirement that the government disclose in a bill of particulars all the overt acts it will prove in establishing a conspiracy charge.’ " Id. Even the defendants acknowledge that the government has provided voluminous discovery in this case, and nowhere in their motion papers do they detail the basis for concluding that the discovery, combined with the allegations in the second superseding indictment, are insufficient to apprise the defendants of the charges against them.
The one exception to this ruling is Cobb's request for a bill of particulars with respect to counts four and seven. Cobb contends that particularization of these counts is essential so that he is not prosecuted in multiple counts for the same conduct. (Dkt. 190-2 at 7 n.2). Cobb subsequently filed a motion to dismiss alleging that these counts are multiplicitous. (See Dkt. 208-7 at 12-13). As noted below, the Court reserves decision on that aspect of Cobb's motion to dismiss, as well as the motion for a bill of particulars with respect to those counts, because further information is needed before the Court can render a decision.
III. Cobb's Motion to Dismiss
Cobb seeks dismissal of one or more counts of the second superseding indictment on various grounds, as follows: (1) a ground that is identified under seal (see Dkt. 210-1 at 5-11); (2) on the ground that several of the counts are multiplicitous (Dkt. 208-7 at 8-14); and (3) on the ground that counts eleven, twelve, and thirteen invoke statutory provisions that are void for vagueness (id. at 14-17).
Specifically, Cobb argues that the drug crimes charged in counts four and seven are multiplicitous (Dkt. 208-7 at 12-13), that the § 924(c) charges in counts eleven, twelve, and thirteen are multiplicitous (id. at 13), that the obstruction of justice charges in counts fifteen and sixteen are multiplicitous (id. ), that the use of fire to commit a felony charges in counts eighteen and nineteen are multiplicitous of each other and of the obstruction of justice charges in counts fifteen and sixteen (id. ), and that the conspiracy to use fire to commit a felony charged in count seventeen is multiplicitous of the conspiracy to obstruct justice charged in count fourteen (id. ).
The Court reserves decision on the first two grounds identified by Cobb in support of dismissal. With respect to the third ground, as Cobb acknowledges, his argument that Hobbs Act robbery—which serves in part as a predicate offense for counts eleven, twelve, and thirteen—is not categorically a crime of violence, is precluded by Second Circuit precedent, see United States v. Hill , 890 F.3d 51, 53 (2d Cir. 2018), cert. denied , ––– U.S. ––––, 139 S. Ct. 844, 202 L.Ed.2d 612 (2019), and therefore that aspect of Cobb's motion is denied.
IV. Cobb's Motion to Strike Surplusage
Cobb has moved to strike from the second superseding indictment the special findings, as they are no longer relevant in view of the government's decision not to seek the death penalty. (Dkt. 208-7 at 17). As the Court indicated at oral argument on May 20, 2021, that portion of the second superseding indictment will not be published to the jury, but the Court declines to strike the allegations from the second superseding indictment. (Dkt. 230 at 65-66). Cobb's counsel agreed that avoiding publication to the jury would address their concerns. (Id. ).
V. Motions for Disclosure pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
As part of his omnibus motions, Wilson seeks "the immediate disclosure of all exculpatory and/or impeaching material in the prosecution's possession, custody or control," and he proceeds to list for several pages in single-spaced type the information that he contends falls within the scope of this demand, ranging from impeachment evidence related to any prospective government witness to the identity of any witness who has information helpful to the defense. (Dkt. 186 at 8-12). In addition, as part of this aspect of his motion, Wilson contends that his interview by law enforcement reflects statements by law enforcement that are not consistent with the allegations in the second superseding indictment to the extent the officers advised Wilson that Cobb and Reed are behind the murders, and thus the government must be in possession of "statements and information that call into question the validity of the Government's theory of the case." (Id. at 20-21).
Cobb also seeks the disclosure of information pursuant to Brady , arguing that the Court should issue an order requiring its production no later than three months prior to trial. (Dkt. 190-2 at 13). Like Wilson, Cobb lists in single-spaced type, for several pages, the items that he contends fall within the scope of this request, ranging from "[a]ny information that in any way is contrary to any government theory or contention," to impeachment materials related to potential witnesses. (Id. at 14-18).
Clark seeks similar relief as part of her omnibus motions. (Dkt. 189-1 at 5-7).
In response to each of these motions, the government acknowledges its Brady obligations, states that it is unaware of any Brady information in the case, and further states that it will disclose impeachment Brady information in accordance with this Court's pretrial schedule and no later than the disclosure of Jencks Act material. (Dkt. 214 at 12-15; Dkt. 215 at 21-24; Dkt. 216 at 11-14). Further, at oral argument on May 20, 2021, the government represented that it was not aware of any Brady material that had not been produced, and that if it became aware of any, it would be provided in accordance with the government's obligations. (Dkt. 230 at 53).
The Supreme Court held in Brady that "the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. 1194. The government has the duty to disclose Brady information even without a request by the defense. United States v. Agurs , 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The information includes not just evidence that affirmatively exculpates a defendant, but also may include information that impeaches the credibility of government witnesses. See United States v. Bagley , 473 U.S. 667, 676-77, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ; Giglio v. United States , 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
Brady information must be disclosed in time for its effective use at trial. United States v. Coppa , 267 F.3d 132, 135, 142 (2d Cir. 2001) ("[T]he prosecutor must disclose ‘material’ (in the Agurs / Bagley sense) exculpatory and impeachment information no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made."). As held by the Second Circuit in Coppa : "[A]s a general rule, Brady and its progeny do not require immediate disclosure of all exculpatory and impeachment material upon request by the defendant...." Id. at 146. Rather, the "time required for the effective use of a particular item of evidence will depend on the materiality of that evidence as defined by the Supreme Court in Agurs and Bagley , as well as the particular circumstances of the case." Id. ; cf. United States v. Rodriguez , 496 F.3d 221, 226 (2d Cir. 2007) (" Brady information must be disclosed ... in a manner that gives the defendant a reasonable opportunity either to use the evidence in the trial or to use the information to obtain evidence for use in the trial. Thus, the Government must make disclosures in sufficient time that the defendant will have a reasonable opportunity to act upon the information efficaciously."); Leka v. Portuondo , 257 F.3d 89, 100 (2d Cir. 2001) ("It is not feasible or desirable to specify the extent or timing of disclosure Brady and its progeny require, except in terms of the sufficiency, under the circumstances, of the defense's opportunity to use the evidence when disclosure is made. Thus disclosure prior to trial is not mandated.").
While the Coppa court recognized a trial judge's discretion to order pretrial disclosures as a matter of sound case management, it also plainly highlighted that it is the responsibility and problem of the prosecutor to ensure compliance with the government's Brady obligations. 267 F.3d at 143, 146. Cf. Rodriguez , 496 F.3d at 225-26 (explaining "special role" prosecutor plays in "the search for truth in criminal trials" and how that is juxtaposed with Brady obligations (quotations omitted)).
Here, the government has represented that it is fully aware of its Brady obligations, that it has complied with those obligations, and that it will continue to comply with those obligations. There is nothing in the record before this Court suggesting any Brady violations, and at best, the defendants are seeking early disclosure of impeachment information that may fall within the scope of Brady or other evidence that goes beyond the scope of Brady and its progeny. At this stage of the proceedings, based upon the government's representations concerning its compliance with Brady and its intent to continue to comply with its obligations in that regard, the Court concludes that it is unnecessary for it to issue an order setting a deadline for the government's compliance in this regard. However, particularly in view of the issuance on November 5, 2020, by the Chief Judge of this District of an Interim General Order pursuant to the Due Process Protections Act, P.L. No. 116-182, 134 Stat. Ann. 894 (Oct. 21, 2020), the Court intends to address these issues further at the appearance on June 21, 2021, and issue an order consistent with that Interim General Order.
Finally, in Wilson's reply memorandum he raises a specific request for Brady material relating to Buffalo Police Department Intra-Departmental Correspondence and P-73 Forms from its Homicide Unit, referencing individuals other than Wilson who are the persons depicted in the videos relevant to the homicide of the victims found in the burned vehicle in the vicinity of 111 Tonawanda Street, Buffalo, New York. (Dkt. 222 at 2-3). At oral argument, the government argued that it did not necessarily view the information as Brady material, but nonetheless the information had been produced with the names of the tipsters redacted due to safety concerns. (Dkt. 230 at 45-53).
The Court views the information as falling within the scope of Brady . While the Court is sensitive to the government's expressed safety concerns, the Court does not believe it is appropriate to require Wilson's counsel to wait until close to the time of trial to be able to investigate these reports by individuals who identified others as allegedly present at the scene depicted in the video. Accordingly, the Court will require the government to produce the subject documents without the identity of the tipsters redacted; however, the information is not only subject to the Protective Order entered in this case (Dkt. 148) but in addition, at least until further order of this Court, the information shall be for attorneys’ eyes only. The parties are directed to prepare a Protective Order for the Court's review memorializing the confidentiality protections for this specific information.
VI. Motions for Jencks Act Material
Wilson seeks "immediate disclosure of Jencks material ( 18 U.S.C. 3500 )." (Dkt. 186 at 21). Cobb similarly seeks early disclosure of Jencks Act material. (Dkt. 190-2 at 20-21). Clark also seeks similar relief, although she does not seek its immediate disclosure, but rather "not later than four weeks prior to the date of the trial....". (Dkt. 189-1 at 8-9). The government opposes each of these requests, arguing that it will comply with this Court's usual practice of directing the production of the material before trial, so long as the production will not jeopardize a witness’ safety, in which case the government reserves the right to withhold the material until after the witness testifies. (Dkt. 214 at 15-16; Dkt. 215 at 26; Dkt. 216 at 14).
This Court typically requires, as part of its pretrial order in any case, a request that the government produce material pursuant to the Jencks Act, 18 U.S.C. § 3500, at least 30 days before trial, in order to avoid lengthy delays during trial. The Court intends to issue such a pretrial order in this case once a trial date is set. To the extent any of the defendants are seeking an order from the Court requiring Jencks Act material to be produced at a date before the government is required to do so under the Act, the Court is without authority to issue such an order, and therefore the request is denied. See In re United States , 834 F.2d 283, 287 (2d Cir. 1987) (district court had no inherent power to modify or amend the provisions of the Jencks Act).
VII. Motions for Preservation of Rough Notes and Other Evidence
Wilson argues that the Court should order "all government agents and officers who participated in the investigation" to retain and preserve all rough notes, whether or not incorporated in official records, and that the Court should further require the government "to preserve and protect from destruction, alteration, mutilation or dilution any and all evidence acquired in their investigation of the defendants." (Dkt. 186 at 22-23). Clark seeks similar relief. (Dkt. 189-1 at 9-10).
Cobb similarly seeks an order requiring the preservation of all rough notes, and he also seeks an order requiring the government to "compile a list of documents discoverable under Federal Rule of Criminal Procedure 16 or under the Brady doctrine which were destroyed before, during, or after the investigation." (Dkt. 190-2 at 21-22).
The government states that it has no general objection to the request that government agents retain notes taken during investigation in the case, and that as a matter of routine practice, all federal law enforcement agencies already do so. (Dkt. 214 at 16-17; Dkt. 215 at 27; Dkt. 216 at 15-16). However, the government argues that the retention of rough notes is not required, so long as they are incorporated into a final record and, even if retained, they are not discoverable as Jencks Act material. (Id. ).
The government cites United States v. Koskerides , 877 F.2d 1129 (2d Cir. 1989), for the proposition that rough notes are not discoverable, even as Jencks Act material. The Court does not read that decision as broadly as the government. In Koskerides , the court found that the government was not required to produce handwritten notes of an agent because the notes contained the same information as the typewritten memoranda that was provided to the defendant, and because the notes did not pertain to anything discussed by the agent in his testimony on direct examination. See id. at 1133 ("Here, the district court reviewed the handwritten notes in camera and determined that the notes did not pertain to anything said by the agent on direct examination. We find no error in the district court's determination."). In other words, Koskerides does not stand for the proposition that the government is never required to produce the rough notes of a law enforcement officer, and there may be situations that require production of rough notes pursuant to the Jencks Act.
While the government is not required to preserve notes that have been incorporated into a final report, see United States v. Elusma , 849 F.2d 76, 79 (2d Cir. 1988), the defendants "may be entitled to production of at least a portion of the notes at trial if they were still in existence at the time of trial and were discoverable under the provisions of the Jencks Act." United States v. Bosch , 385 F. Supp. 2d 387, 390 (S.D.N.Y. 2005). See also United States v. Yarborough , No. 06-CR-190(A), 2007 WL 962926, at *7 (W.D.N.Y. Mar. 28, 2007) (ordering government to take steps to preserve any rough notes that have not been incorporated into final written reports). Given that the government has no general objection to the preservation of rough notes, and in view of the foregoing legal authority, the Court grants the defendants’ motions relating to preservation of rough notes and, to the extent it has not already done so, the government is directed to preserve all rough notes and items of evidence.
The government does not specifically address Cobb's request that it compile a list of documents discoverable under Federal Rule of Criminal Procedure 16 or under the Brady doctrine which were destroyed. The Court notes that other courts in this Circuit have granted similar relief. See, e.g., United States v. Wei , 862 F. Supp. 1129, 1139 (S.D.N.Y. 1994) (directing government to "produce to defendants a list and description of any investigative documents which would have been discoverable under Brady or Fed. R. Crim. P. 16 which were destroyed by government agents during the course of and following the investigation of this case"); see also United States v. Flores , No. 90 CR 166, 1990 WL 116732, at *1 (S.D.N.Y. Aug. 9, 1990) (granting motion for "identification of tapes and documents that have been destroyed or will be destroyed"). Accordingly, with no response from the government to this aspect of Cobb's motion, the government is directed to compile the requested list to the extent it is aware of any documents falling into these categories.
VIII. Clark's Motion for Grand Jury Transcripts
Clark has made a motion for the disclosure of all grand jury transcripts because she "is the subject of a bare bones indictment that does not state any particular acts or overt acts that she allegedly committed in the course of the conspiracy." (Dkt. 189 at 14; Dkt. 189-1 at 1). The government opposes Clark's request. (Dkt. 215 at 13-15).
Disclosure of grand jury proceedings is permitted upon a showing that a "ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Fed. R. Crim. P. 6(e)(3)(E)(ii). "[A] presumption of regularity attaches to grand jury proceedings...." United States v. Leung , 40 F.3d 577, 581 (2d Cir. 1994). Accordingly, "a defendant seeking disclosure of grand jury minutes has the burden of showing a ‘particularized need’ that outweighs the default ‘need for secrecy’ in grand jury deliberations." United States v. Forde , 740 F. Supp. 2d 406, 413 (S.D.N.Y. 2010) (citing United States v. Moten , 582 F.2d 654, 662 (2d Cir. 1978) ); see also Pittsburgh Plate Glass Co. v. United States , 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959) ("The burden ... is on the defense to show that a ‘particularized need’ exists for the minutes which outweighs the policy of secrecy."). "A party makes a showing of particularized need by proving ‘that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.’ " In re Grand Jury Subpoena , 103 F.3d 234, 239 (2d Cir. 1996) (quoting Douglas Oil Co. v. Petrol Stops Nw. , 441 U.S. 211, 222, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979) ). It is well-settled that "[h]ope and speculation are wholly insufficient to overcome the rule of secrecy in grand jury proceedings that is embodied in Fed.R.Crim.P. 6(e)." United States v. Donald , No. 07-CR-6208L, 2009 WL 270181, at *6 (W.D.N.Y. Feb. 4, 2009), report and recommendation adopted , 2009 WL 960209 (W.D.N.Y. Apr. 7, 2009).
Here, Clark is charged in count one with a narcotics conspiracy involving cocaine, heroin, marijuana, and butyryl fentanyl beginning in or about 2014 through September 25, 2019, in violation of 21 U.S.C. § 846. (Dkt. 106 at 1-2). "An indictment under § 846 ‘need only allege the existence of a narcotics conspiracy, a relevant time frame, and the statute alleged to be violated.’ " United States v. Mullen , 451 F. Supp. 2d 509, 548 (W.D.N.Y. 2006) (citations omitted). The government "does not need to specify any overt acts in a narcotics conspiracy charge." United States v. Russo , No. 20-CR-023 (DLI), 2021 WL 1723250, at *4 (E.D.N.Y. Apr. 30, 2021) (citing United States v. Bermudez , 526 F.2d 89, 94 (2d Cir. 1975) ). Thus, the basic premise of Clark's request for the grand jury transcripts is fundamentally flawed, and she has failed to come close to making a showing of a particularized need for the grand jury transcripts. As a result, Clark's motion is denied.
IX. Motions for Identity of Informants
Wilson seeks the identity of all informants possessing information that may be material to his guilt or innocence, all informants who were present at any of the events at issue in the second superseding indictment, and all government reports containing information received from any such informant. (Dkt. 186 at 26). Similarly, Clark argues that she is entitled to the identity of any informants who witnessed or participated in the criminal transactions. (Dkt. 189 at 6). She further argues that she is entitled to a variety of background and impeachment information related to each of these informants. (Id. at 7-8). In addition, she argues that she is entitled to the "DEA's internal informant file." (Id. at 8-9).
It is well-settled that the government, for non-testifying witnesses, has a "privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Roviaro v. United States , 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). This privilege "recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation." Id. However, "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. at 60-61, 77 S.Ct. 623. "[T]he trial judge must in each case weigh the interests of the defendant in obtaining such information against the government's desire to encourage the free flow of such information from its citizens." United States v. Manley , 632 F.2d 978, 985 (2d Cir. 1980).
"The defendant bears the burden of showing the need for disclosure of an informant's identity, and to do so must establish that, absent such disclosure, he will be deprived of his right to a fair trial." United States v. Fields , 113 F.3d 313, 324 (2d Cir. 1997) (internal citation omitted). "Disclosure is a matter which lies within the sound discretion of the district court," and "[s]peculation that disclosure of the informant's identity will be of assistance is not sufficient to meet the defendant's burden[.]" Id. Further, "it is not sufficient to show that the informant was a participant in and witness to the crime charged." United States v. Saa , 859 F.2d 1067, 1073 (2d Cir. 1988). "[T]he Supreme Court has indicated that the most persuasive case for disclosure is where the examination of the informant is necessary to vindicate a defense on the merits and where the withholding of the information will thereby compromise the truth-finding function of the trial," while "the need for disclosure is far less compelling when it is sought in connection with pretrial issues, such as the propriety of search or seizure, which do not bear upon the ultimate question of guilt or innocence." Manley , 632 F.2d at 985. Disclosure of an informant's identity is an "extraordinary remedy." United States v. Muyet , 945 F. Supp. 586, 602 (S.D.N.Y. 1996).
Courts routinely deny motions for disclosure of an informant's identity and related impeachment information when the basis for such disclosure is general and speculative. See id. at 602 (defendants not entitled to disclosure of identity of confidential informant where they argued that "it is likely that the informants will provide the only direct evidence in the case and that their testimony will be key," because "[m]ere speculation ... that the informer may possibly be of some assistance does not overcome the strong public interest in protecting informants" (quotations and citation omitted)); see also United States v. Brown , No. 1:19-CR-222 EAW( ), 2020 WL 2028538, at *5 (W.D.N.Y. Apr. 28, 2020) (denying defendant's request for identities of all informants utilized by government during the course of its investigation, as well as potential impeachment materials for these individuals, because defendant failed to offer any specific reason as to why informant identities were material or necessary to his defense, instead stating generally that "disclosure of informant information is necessary so that defense counsel may ‘attempt to interview them and otherwise investigate their allegations, biases, and benefits derived from cooperating with the government’ "); United States v. Barret , 824 F. Supp. 2d 419, 441-42 (E.D.N.Y. 2011) (defendant's contention that "key portions" of the government's case consisted of testimony of confidential informants, and that he sought information about these informants "to permit the defense an opportunity to interview them in preparation for trial," was insufficient to compel identification of government informants). As explained by the court in United States v. Ordaz-Gallardo , where the defendants sought disclosure of informant information, regardless of whether the government intended to call the informants at trial:
At this point, Defendants offer little more than speculation to suggest that any informants that have provided information to the Government in this matter would be of material value to the Defendants’ case. Defendants’ motion papers declare only that "it is apparent from review of discovery provided to date that the Government will rely on the testimony of Government informants in prosecuting this case. Their testimony will clearly be relevant to the guilt or innocence" of the Defendants. Such broad allegations, however, are insufficient to meet Defendants’ burden—at best, these statements constitute a level of speculation that, absent more, does not warrant disclosure of the identity of informants.
520 F. Supp. 2d 516, 520-21 (S.D.N.Y. 2007).
Both Wilson and Clark engage in similar speculation relating to the information they believe may be possessed by the confidential informants. Wilson states only that the informants are "percipient witnesses to the allegations contained in the instant Indictment, and may also possess exculpatory and exonerating information." (Dkt. 186 at 26). Similarly, Clark states merely that "[t]he allegations in this case establish that the informants participated in and/or were witnesses to the alleged conduct." (Dkt. 189 at 6). As explained above, simply stating that the informant was a participant in and witness to the crime charged is insufficient to warrant the extraordinary remedy of disclosure. Saa , 859 F.2d at 1073 ; see also United States v. Mullen , 243 F.R.D. 54, 72 (W.D.N.Y. 2006) (defendant's contention that informants were "percipient witnesses" and "may have exculpatory information" lacked sufficient specificity to require disclosure), aff'd , 243 F.R.D. 53 (W.D.N.Y. 2007). In other words, neither Wilson nor Clark have offered any specific reason as to why the informant identities are necessary to vindicate a defense on the merits and that withholding the information would compromise the truth-finding function at trial.
Weighed against Wilson's and Clark's speculation regarding the information possessed by the confidential informants is the government's interest in protecting the identifies of their informants which, in this case, is high. The second superseding indictment details a significant narcotics conspiracy, as well as firearms and murder charges. See, e.g. , United States v. Jimenez , 824 F. Supp. 351, 365 (S.D.N.Y. 1993) ("The presumption in favor of preserving the confidentiality of informants’ identities is particularly relevant to a narcotics case in which an arsenal of firearms was seized from locations controlled by the charged defendants.").
In connection with his request for disclosure of confidential informant information, Wilson also requests pre-trial access to the identity and location of prosecution witnesses "so that he may interview them prior to trial in order to put such witnesses in proper setting for purposes of credibility and cross-examination." (Dkt. 186 at 29-31). While "Fed. R. Crim. P. 16 does not require the Government to furnish the names and addresses of its witnesses in general ... ‘district courts have authority to compel pretrial disclosure of the identity of government witnesses ...’ " United States v. Bejasa , 904 F.2d 137, 139 (2d Cir. 1990) (quoting United States v. Cannone, 528 F.2d 296, 300 (2d Cir. 1975) ). "In deciding whether to order accelerated disclosure of a witness list, courts consider whether a defendant has made a specific showing that disclosure is ‘both material to the preparation of the defense and reasonable in light of the circumstances surrounding the case.’ " United States v. Maxwell , No. 20-cv-330 (AJN), 2021 WL 1518675, at *15 (S.D.N.Y. Apr. 16, 2021) (quoting Bejasa , 904 F.2d at 139-140 ). Wilson makes only general statements that he wants to interview government witnesses prior to trial, and therefore he has failed to make a specific showing that disclosure of witness identity and information is material and reasonable at this juncture. Accordingly, his request for disclosure of witness identities and related information is denied at this time. In advance of any trial in this matter, the Court will issue a pretrial order, setting deadlines for production of the government's witness list for any individuals the government intends to call as witnesses at trial.
To the extent Wilson and Clark seek impeachment information relating to any confidential informants—whether it be in the form of government reports, background information, or DEA internal informant files—for the reasons explained above, they have not made a sufficient showing that they are entitled to that information at this stage of the litigation. Should any confidential informant be called as a witness at trial, the defense will be entitled to learn the informant's identity and to relevant impeachment material. See Giglio , 405 U.S. 150, 92 S.Ct. 763 ; see also United States v. Frank , 11 F. Supp. 2d 322, 325 (S.D.N.Y. 1998) ("Provided that the defendant has sufficient time after receipt of Giglio material to use it effectively at trial, there is no violation of the defendant's rights from deferring production of this material until closer to the time of the witnesses’ testimony."). Further, if any of the information sought by Wilson or Clark can otherwise be characterized as Brady , the government has an obligation to disclose it in time for the defendants to make effective use of it at trial. Coppa , 267 F.3d at 142. However, at this stage of the litigation, neither Wilson nor Clark has carried their burden in demonstrating their need for disclosure of informant identities, or relevant impeachment information for these informants.
X. Wilson's Motion for Frye/Lafler Disclosure
Wilson argues that because of the "implications of the capital prosecution review process, the early disclosure of constitutionally required discovery, previously reserved for the effective use of the defense at trial, must be disclosed to the defense immediately...." (Dkt. 186 at 39). Wilson bases this argument on Missouri v. Frye , 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) and Lafler v. Cooper , 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). (Id. ). The Supreme Court in Frye and Lafler recognized that the right to effective assistance of counsel applies in the plea-bargaining process. Frye , 566 U.S. at 138-44, 132 S.Ct. 1399 (considering prejudice arising out of uncommunicated, lapsed plea offer); Lafler , 566 U.S. at 173-74, 132 S.Ct. 1376 (considering prejudice arising out of deficient advice to reject plea offer and go to trial).
Wilson has not cited any authority to support the notion that Frye and Lafler somehow changed the timing or scope of the government's discovery obligations in a capital case or otherwise. Nonetheless, the request appears to have been mooted by the government's decision not to seek the death penalty, and therefore this aspect of Wilson's motion is denied as moot.
XI. Wilson's and Cobb's Motions for Disclosure of Search Warrant Applications
Both Wilson and Cobb seek disclosure of search warrant applications. Specifically, Wilson seeks disclosure of "materials relating to court-ordered electronics," including cell-site, GPS location, Google Maps information, and search warrants (Dkt. 186 at 37-38), and Cobb seeks disclosure of "all search warrant applications and evidence submitted to the issuing magistrates" (Dkt. 208-7 at 31-32). Wilson has not explained why he believes he is entitled to these materials.
Cobb argues that the search warrant applications are material to the preparation of his defense "because without them defense counsel cannot fully evaluate potential suppression issues and advise Cobb whether he or she should assert standing or move to suppress." (Dkt. 208-7 at 31). At oral argument, Cobb clarified he relies on the Fourth Amendment, Rule 16, and Rule 12 as supporting his entitlement to these documents, even without demonstrating standing to challenge any particular search warrant. (See Dkt. 230 at 21-22, 73). In response, the government argues that Cobb is in possession of the search warrants executed in connection with the case, but because it has not received an affidavit from him establishing standing for any of the locations searched, it has not provided the applications submitted in support of the search warrants. (Dkt. 219 at 24-25; see also Dkt. 214 at 29-30 (government has provided Wilson with search warrants for locations and vehicles)).
At oral argument on May 20, 2021, counsel for Wilson clarified that while the government provided a "printout of the Google map" of the phones allegedly in the possession of Wilson and two victims in the case, the map shows only the location of the phones when they "pinged" off of a cell site, and that they are seeking how that information was derived and what technology generated the maps produced to them. (Dkt. 230 at 60-61). With regard to that information, the government explained that it had produced both the "raw data and the maps," but that it would again provide the "raw data" collected to Wilson. (Id. at 61-63). Accordingly, unless any further objection is raised as to the material provided by the government, Wilson's request for cell-site, GPS location, and Google Maps information appears to be moot at this juncture. The Court therefore turns to Wilson's and Cobb's requests for all search warrant applications and evidence submitted to the magistrate judge in support of the search warrants.
Fourth Amendment rights attach only to places and things in which the individual challenging the search has "an expectation of privacy that society is prepared to consider reasonable." O'Connor v. Ortega , 480 U.S. 709, 715, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (citation omitted); see, e.g. , Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ("[C]apacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place."). "It has been clear for a generation that ‘Fourth Amendment rights are personal rights that may not be vicariously asserted.’ " United States v. Haqq , 278 F.3d 44, 47 (2d Cir. 2002) (alterations omitted) (quoting Rakas , 439 U.S. at 133-34, 99 S.Ct. 421 ); see, e.g. , United States v. Osorio, 949 F.2d 38, 40 (2d Cir. 1991) ("The party moving to suppress bears the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure."). "In evaluating [standing] claims, the court generally considers whether the defendant had any property or possessory interest in the place searched or the items seized." Id. at 40. The burden is on the defendant to show that he has a reasonable expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) ; see also United States v. Cruz, 475 F. Supp. 2d 250, 253 (W.D.N.Y. 2007) ("The burden of establishing the existence of a reasonable expectation of privacy rests on the defendant.").
In support of his assertion that he is entitled to the search warrant applications, Cobb cites United States v. Tigano , No. 08CR281S, 2010 WL 2612315, at *1 n.2 (W.D.N.Y. June 25, 2010), where the court ordered that the government produce to defendant items submitted in support of the search warrant, explaining that review of the validity of the warrant requires review of the evidence presented to the issuing magistrate judge. Tigano is inapposite because the location searched in that case—30 Mill Street—served not only as the defendant's marijuana processing facility but also where defendant resided, and therefore he plainly had an expectation of privacy in that location. At oral argument on May 20, 2021, defense counsel conceded that he was not aware of any case law supporting the notion that a search warrant application is discoverable to a defendant in a criminal case, without that defendant establishing Fourth Amendment standing. (Dkt. 230 at 24).
Neither Wilson nor Cobb has articulated that he has a legitimate expectation of privacy in any of the search locations and therefore has standing to challenge their search. Absent any such showing, they are not entitled to this information. See United States v. Walker , No. 1:18-CR-237 RJA, 2021 WL 1725513, at *12 n.12 (W.D.N.Y. Jan. 6, 2021) (defendant not entitled to affidavit or in camera testimony submitted in support of search warrant application because defendant did not file an affidavit of standing, and he "therefore ha[d] no basis to challenge the validity of the warrant or the search of the premises"), report and recommendation adopted , 2021 WL 1723159 (W.D.N.Y. Apr. 30, 2021) ; United States v. Pirk , 282 F. Supp. 3d 585, 594 (W.D.N.Y. 2017) (no Fourth Amendment right to access affidavit in support of search warrant where defendant failed to establish standing to challenge warrant); United States v. Findley , No. 09-CR-267A(SR), 2010 WL 4273919, at *3 (W.D.N.Y. Oct. 28, 2010) ("Absent standing to challenge the search warrant for 468 Dartmouth Avenue, and without additional information from the defendant as to the basis for the request for the disclosure of the application and affidavits, the defendant's request is denied without prejudice."); see also United States v. Pennick , No. 17-CR-15-RJA-MJR, 2018 WL 4627138, at *3 (W.D.N.Y. Feb. 27, 2018) (denying defendant's request for disclosure of confidential informant's identity and sealed, in camera testimony given by the informant in support of search warrant because disclosing the warrant application would allow defendant and other individuals to identify the confidential informant, and defendant did "not have a strong interest in reviewing the in camera testimony because he lacks standing to challenge the searches authorized by the warrant").
To the extent Cobb and Wilson rely on the "material to the defense" standard articulated in Rule 16, the Court concludes that on this record, they have failed to make such a showing. In other words, if a defendant is unable to show that the information he seeks—in this case, the materials submitted in support of the search warrants—could support a potential suppression motion, the Court cannot determine that the information is material to the defense. United States v. Saltares , 301 F. Supp. 2d 305, 306-07 (S.D.N.Y. 2004) (where defendant sought unredacted copies of affidavits submitted in support of search warrants so that he could determine the viability of a challenge to them, finding that defendant "has not made a sufficiently specific showing under Fed. R. Crim. P. 16 that unredacted copies of the Affidavits are material to his defense at this stage of the proceedings," noting that defendant "has not made any assertion that the information in the Affidavits is likely to be false," and explaining that "at the present stage of the proceedings, the materiality to [defendant's] defense of the unredacted Affidavits and the identity of the informant is low and the Government's interest in protecting the identity of its informant is high").
Accordingly, because neither Wilson nor Cobb has submitted a sworn statement demonstrating that he had a subjective and reasonable expectation of privacy in any of the search locations, and absent their identification of additional information setting forth the basis for disclosure of these materials, Wilson's and Cobb's motions for disclosure of all search warrant information, including the underlying warrant applications, is denied without prejudice.
XII. Wilson's Motion to Suppress Statements
Wilson has filed a motion to suppress his statements made to law enforcement on October 9, 2019. (Dkt. 186 at 43-44). Wilson argues that the Court should conduct a hearing "to investigate the facts and circumstances surrounding the taking of the said statement to determine whether it was obtained voluntarily, knowingly and intelligently pursuant to a proper waiver of Constitutional rights by Mr. Wilson." (Id. at 43). On March 16, 2021, Wilson filed an affirmation in support of this motion wherein he states that the statements attributed to him at the time of this interview "were not freely and voluntarily given, in violation of my Constitutional rights." (Dkt. 197). In reply papers, Wilson further contends that a hearing is necessary and that the video shows circumstances "other than what the Government alleges in its response." (Dkt. 222 at 2-3).
At the direction of the Court, the government produced a copy of Wilson's interview, which was videotaped, for the Court's review. At the beginning of the interview, Wilson is read his Miranda warnings by law enforcement and initials a form confirming that he received the warnings. Wilson appears alert and is responsive to law enforcement's questions throughout the course of the interview. Nothing from a review of the video and audio of the interview appears to indicate that Wilson did not understand and comprehend the questions, nor does Wilson make any specific argument in that regard in support of his motion. Similarly, there is no use of force or threats applied by law enforcement during the court of the interview, and Wilson does not claim otherwise.
"A defendant seeking the suppression of evidence is not automatically entitled to an evidentiary hearing on the claim, but must make a preliminary showing of facts which, if proved would require the granting of relief." United States v. Longo , 70 F. Supp. 2d 225, 248 (W.D.N.Y. 1999). "Courts in this Circuit frequently require motions to suppress evidence—in order to raise factual issues warranting a hearing—be accompanied by affidavits describing the facts giving rise to a claim of inadmissibility[.]" United States v. Santiago , 174 F. Supp. 2d 16, 26 (S.D.N.Y. 2001). "Unlike an allegation that Miranda warnings were not given, where a conclusory assertion suffices for purposes of obtaining a hearing, other grounds for suppression ordinarily must be supported by a factual exposition." Id. The affidavit must contain allegations that are "definite, specific, detailed and nonconjectural." Longo , 70 F. Supp. 2d at 248 (quoting United States v. Pena , 961 F.2d 333, 339 (2d Cir. 1992) ); see also United States v. Viscioso , 711 F. Supp. 740, 745 (S.D.N.Y. 1989) ("A hearing is not required if the defendant's statements are general, conclusory or based on conjecture."). "A bald assertion that a statement was involuntary, for example, could be based on any of a number of factual premises such as coercion, lack of Miranda warnings, or lack of competence. Without specification of the factual basis for such a characterization, the district court is not required to have a hearing." United States v. Mathurin , 148 F.3d 68, 69 (2d Cir. 1998).
Wilson has not made a preliminary showing for his entitlement to a hearing. As an initial matter, Wilson has not sufficiently articulated why he believes a hearing is necessary, and because his statement was video and audio recorded, it is unclear what Wilson believes a hearing will accomplish, given that the entirety of his statement is preserved and available for the Court's review. See, e.g. , United States v. Watkins , No. 18-CR-00131-LJV-MJR, 2019 WL 937856, at *2 (W.D.N.Y. Jan. 18, 2019) (where defendant initially moved for a hearing as to the voluntariness of his statements, explaining that "[a]fter some discussion with the Court, the parties agreed that an evidentiary hearing was unnecessary because the entire interview was on video," and therefore "the Court could view the video and determine if defendant was coerced into making any statements based on the agents’ conduct"), report and recommendation adopted , 2019 WL 936231 (W.D.N.Y. Feb. 26, 2019). This is not a situation, for example, where the parties have advanced differing accounts of what occurred during a post-arrest interview, and the Court must make a credibility finding to determine whether a statement was freely and voluntarily given. Further, although Wilson has submitted an affirmation in support of his request for a hearing, the affirmation is conclusory. Wilson states only that he was interrogated by two members of law enforcement at Buffalo Police Headquarters, and that his statements "were not freely or voluntarily given." (Dkt. 197 at ¶¶ 4-5). Wilson has not pointed to any specific aspect of the videotaped interview that he contends represents statements given in a non-voluntary manner justifying suppression. At oral argument, defense counsel referenced the "technique" used by investigators in questioning Wilson (see Dkt. 230 at 59-60); however, counsel offered no explanation as to how this "technique" somehow rendered Wilson's statement not voluntary. In other words, even if law enforcement suggested that they were focused on Reed and Cobb for the murders as opposed to Wilson, in an attempt to gain Wilson's confidence and elicit statements, this so-called "technique" in and of itself would not render Wilson's statements involuntary so as to justify suppression. "Ploys to mislead a suspect or to lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns." Illinois v. Perkins , 496 U.S. 292, 296, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) ; see , e.g. , United States v. Pryor , 474 F. App'x 831, 834 (2d Cir. 2012) (rejecting argument that defendant's "statement was not voluntarily given because the law enforcement agents with whom he was speaking told him that they were not interested in pursuing robbery charges and that he was not going to be arrested"); United States v. Peterson , No. 3:18-CR-00049 (JCH), 2018 WL 6061571, at *6 (D. Conn. Nov. 20, 2018) (denying motion to suppress where law enforcement "led [the defendant] into falsely believing that he was the victim, rather than the suspect, in their investigation"); United States v. Samia , No. (S9) 13 CR 521-LTS, 2016 WL 7223410, at *6 (S.D.N.Y. Dec. 13, 2016) (rejecting argument that "false and misleading statements made by the agents during the course of the questioning, in which the agents told [the defendant] that they had already taken an incriminating statement from his co-defendant" rendered statements involuntary), on reconsideration on unrelated grounds , No. S9 13 CR 521-LTS, 2017 WL 980333 (S.D.N.Y. Mar. 13, 2017).
Because Wilson has provided nothing beyond his own bald assertion that his statement was not voluntary, a hearing is not required. See Viscioso , 711 F. Supp. at 745-46 (evidentiary hearing not required where affidavit was conclusory and did not present disputed factual issues). Accordingly, Wilson's request for an evidentiary hearing is denied, and the Court will resolve the motion to suppress based on the current record by separate decision.
XIII. Motions for Rule 16 Discovery
Bell, Wilson, Clark, and Cobb each move for production of any material covered by Fed. R. Crim. P. 16. (Dkt. 186 at 23-25; Dkt. 187 at 8-9; Dkt. 189 at 9-14; Dkt. 190-2 at 8-11; see also Dkt. 190-1 at 3). In making these requests, they acknowledge that the government has already provided them with voluntary discovery, but formally move for production and inspection of documents and information not previously disclosed during the course of discovery. (Id. ).
" Rule 16 governs the conduct of discovery in criminal cases. It is a rule of checks and balances," and covers "[s]everal specific forms of evidence." United States v. Cherry , 876 F. Supp. 547, 549 (S.D.N.Y. 1995) ; see also United States v. Pitts , No. 19-CR-125(RJA)(JJM), 2020 WL 1668699, at *5 (W.D.N.Y. Feb. 18, 2020) ("Rights of discovery in criminal cases, unlike in civil cases, are severely circumscribed." (citation omitted)), report and recommendation adopted , 2020 WL 1667219 (W.D.N.Y. Apr. 3, 2020) ; United States v. Louis , No. 04 CR 203(LTS), 2005 WL 180885, at *2 (S.D.N.Y. Jan. 27, 2005) (" Rule 16 is ... the sole authorized vehicle under the Federal Rules of Criminal Procedure for pre-trial discovery in criminal cases").
Rule 16 provides for discovery of the following enumerated information: a defendant's oral statement; a defendant's written or recorded statement; a defendant's prior record; documents and objects material to preparing the defense, used during the government's case-in-chief, or obtained from the defendant; reports of examinations and tests; and information about expert witnesses. Fed. R. Crim. P. 16(a)(1). Exempted from production under Rule 16 includes discovery or inspection of 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, as well as statements made by prospective government witnesses, except as provided in 18 U.S.C. § 3500, id. at (a)(2), or discovery and inspection of grand jury proceedings, id. at (a)(3).
To the extent the defendants’ request for production of Rule 16 material seeks disclosure of information that falls outside the scope of Rule 16, any such request is denied. While Rule 16 requires disclosure of specific information, a defendant is not entitled to discovery of "the entirety of the Government's case against him." United States v. Percevault , 490 F.2d 126, 130 (2d Cir. 1974) ; see also United States v. Gerace , No. 1:19-CR-86 JLS( ), 2020 WL 4227990, at *4 (W.D.N.Y. June 26, 2020) (denying request for Rule 16 discovery where information sought was plainly outside the scope of Rule 16, such as "co-conspirator statements, witness names and statements, grand jury testimony, notice of hearsay evidence pursuant to Federal Rule of Evidence 807, and ‘lab bench notes’ "), report and recommendation adopted , 2020 WL 4227374 (W.D.N.Y. July 23, 2020). In advance of trial, the Court will issue a pretrial order setting forth various deadlines for disclosure of information such as witness and exhibit lists, Jencks Act material, and impeachment information. However, the Court finds that it would be premature to order production of that information at this juncture. Furthermore, the Court concludes that the defendants have not otherwise established the materiality of this information requiring its production at this time.
"Where the Government makes good faith representations that it is complying with Rule 16, and that it will continue to do so, courts in this Circuit deny specific discovery requests." United States v. Zelaya-Romero , No. 15 Cr. 174, 2018 WL 1033235, at *3 (S.D.N.Y. Feb. 21, 2018) ; United States v. Santana , No. 13 CR 147(KMW), 2015 WL 5781413, at *2 (S.D.N.Y. Oct. 1, 2015) ("The Court accepts the Government's affirmation that it has complied and will continue to comply with its Rule 16 obligations and thus denies [defendant's] motion."). Here, the government has represented to the Court that to date, it has complied with the requirements of Rule 16 and that if additional discovery materials subject to Rule 16 become available, it will disclose them without undue delay. (Dkt. 213 at 12; Dkt. 214 at 20; Dkt. 215 at 13; Dkt. 216 at 10). Based on the government's representation that it has produced all discovery falling within the scope of Rule 16 to the defendants and that it will continue to produce material within the scope of Rule 16 as it becomes available, the defendants’ request for production of Rule 16 material is denied as moot.
XIV. Wilson's Motion for Rule 12 Discovery
Pursuant to Rule 12(b)(4) of the Federal Rules of Criminal Procedure, Wilson also moves for notification of any evidence the government intends to use in its case-in-chief at trial, so that he may make any motions to suppress if appropriate. (See Dkt. 186 at 25). Wilson points specifically to Rule 12(b)(4)(B) , which he contends establishes a procedure for notifying a defendant of the government's intent to use certain evidence at trial.
Cobb also cites to Rule 12(b) as a basis for disclosure of all search warrant applications (see Dkt. 208-7 at 31-32; Dkt. 230 at 72-73); however, he does not specifically seek a notice of evidence the government intends to use at trial. To the extent Cobb also seeks notice of the government's intent to use evidence in its case-in-chief, any such request is denied as moot.
Although Wilson cites to Rule 12(c)(4)(B) in his papers, there is no such subsection in Rule 12, and the Court presumes that he is referring to Rule 12(b)(4)(B), which discusses Notice of the Government's Intent to Use Evidence at the Defendant's Request.
Pursuant to Rule 12(b)(4)(B), "[a]t the arraignment or as soon afterward as practicable, the defendant may, in order to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), request notice of the government's intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16." Fed. R. Crim. P. 12(b)(4)(B) ; see also United States v. White , 489 F. Supp. 3d 274, 280 (S.D.N.Y. 2020) (discussing Rule 12(b)(4)(B) ).
The government responds that it "currently intends to use all of the evidence disclosed during voluntary discovery and discovery which falls within the scope of Rule 12(b)(4)." (Dkt. 214 at 21). Accordingly, Wilson's motion is denied as moot. See United States v. Castricone , No. 1:20-CR-00133-LJV-MJR, 2021 WL 841405, at *4 (W.D.N.Y. Mar. 5, 2021) (denying as moot defendant's motion pursuant to Rule 12, where the government provided notice that it intended to use all items defendant was provided or made aware of in accordance with Rule 12 ).
XV. Motions Pertaining to Matters Covered by Court's Pretrial Order
The defendants’ motions contain several requests that will be addressed in the Court's pretrial order, and if necessary litigated closer to the time of trial. For instance, Wilson requests that he be permitted to voir dire any government expert outside the presence of the jury as to both competency and admissibility. (Dkt. 186 at 36). Clark has also sought similar relief (Dkt. 189-1 at 4), and Cobb has also sought certain disclosures with respect to expert testimony (Dkt. 190-2 at 22). The Court's pretrial order will address the expert disclosure obligations of the parties as set forth in Federal Rule of Criminal Procedure 16, and to the extent there are any challenges to the admissibility or qualifications of those expert witnesses, they can be dealt with closer to the time of trial as part of motion practice in accordance with the schedule set forth in the Court's pretrial order.
Wilson has filed a motion for an audibility hearing with respect to any recordings that the government will seek to introduce at trial. (Dkt. 186 at 37). Again, the procedures for challenging any recordings the government seeks to use at trial will be addressed in the Court's pretrial order. Wilson seeks an order requiring the government to disclose any prior bad act evidence pursuant to Federal Rule of Evidence 404(b), as well as information pursuant to Federal Rules of Evidence 608 and 609 for any trial witness. (Dkt. 186 at 37-38). Clark also seeks similar relief (Dkt. 189-1 at 7-8), as does Cobb (Dkt. 190-2 at 23). Again, the disclosures in this regard will be addressed as part of the Court's pretrial order, and the Court declines to order such disclosures at the present time.
Wilson seeks the disclosure in advance of trial of any charts, graphs, diagrams and summaries that the government will seek to use at trial. (Dkt. 186 at 38-39). Advance disclosure of this type of information will be required as part of this Court's pretrial order.
Cobb requests that this Court require the requisite notice under Federal Rule of Evidence 807 now, as opposed to in accordance with the schedule set by the Court's pretrial order. (Dkt. 190-2 at 23). The government responds that it "has no present intention of introducing any statement within the residual hearsay exception, however, should we later find the exception applicable, we will provide the substance of the statement and the name and address of the declarant of the hearsay in time to permit defendants a fair opportunity to prepare to meet the testimony." (Dkt. 216 at 18). The Court directs that the government must comply with its obligations of notice under Rule 807, as must each of the defendants against whom reciprocal discovery has been requested and granted, as discussed below. However, in view of the government's response, the Court declines to issue an order setting a deadline for this notice, outside of the deadlines that will be set as part of the Court's pretrial order.
Cobb also seeks disclosure pursuant to Federal Rule of Evidence 806. (Dkt. 190-2 at 24). The Court agrees with the government that the request is not ripe and is more properly articulated as a motion in limine (Dkt. 216 at 18-19) which again, this Court's pretrial order will set forth motion in limine deadlines.
Wilson seeks to exclude the testimony of all "post-arrest statements by non-testifying coconspirators/co-defendants which may implicate him in any way." (Dkt. 186 at 42-43). The government responds that it is unaware of any statements implicating Bruton as to Wilson, that if there are any such statements then redactions can address any Bruton problems, and any issues with respect of the admissibility of co-conspirator statements can be dealt with consistent with the Court's pretrial order and closer to the time of trial. (Dkt. 214 at 32-33). The Court agrees with the government, and at this juncture, it would be premature to resolve Wilson's motion in this regard. Put simply, the Court lacks sufficient information to meaningfully address the issues raised by Wilson at this time.
Accordingly, these various issues discussed above fall within the scope of matters to be raised consistent with this Court's pretrial order, and they are more appropriately addressed closer to the time of trial. Accordingly, these aspects of the defendants’ motions are denied without prejudice and with leave to renew.
XVI. Bell's Motion for Disclosure
Bell seeks as part of her omnibus motions the search warrant application, supporting documents, reports of the search, and inventory, for 72 Marne Road, Buffalo, New York; 973 Filmore Avenue, Buffalo, New York; 211 Box Street, Buffalo, New York; and Bell's Dodge automobile. (Dkt. 187 at 8-9). Subsequent to the oral argument, Bell filed an affidavit establishing that 72 Marne Road was her residence at the time of the search on September 25, 2019, and that her personal automobile (a Dodge Journey) was searched the following day. (Dkt. 235). Based on this filing, the Court directed the government to provide the search warrant application for 72 Marne Road and the Dodge Journey vehicle to Bell, subject to previously-approved redactions. (See Dkt. 241). To the extent Bell requests search warrant applications for 973 Filmore Avenue and 211 Box Street, she has not established standing to challenge the searches of those locations, and for the same reasons discussed above with respect to Wilson's and Cobb's requests, her motion is denied. However, as a practical matter, since the search warrant application for 72 Marne Road and the Dodge Journey vehicle also included an application to search 973 Filmore Avenue and 211 Box Street, Bell will receive certain disclosures with respect to those search warrants.
XVII. Clark's Suppression Motion
Clark has sought suppression of statements she allegedly made to law enforcement on October 9, 2019, and evidence obtained from her cellphone purportedly pursuant to a consent to search that she gave on that date. (Dkt. 189-1 at 10-11). In support of that motion, Clark has submitted an affirmation of standing. (Dkt. 189-2). As the Court indicated at the oral argument on May 20, 2021, an evidentiary hearing is required to resolve these issues, and accordingly, the Court reserves decision on this motion until after the required evidentiary hearing and any necessary further briefing.
XVIII. Motions for Leave to Join Co-Defendants’ Motions
Each of the defendants who have filed motions have filed a boilerplate request to join in his or her co-defendants’ motions to the extent the requested relief applies factually or legally. (Dkt. 186 at 3; Dkt. 187 at 9; Dkt. 189-1 at 3; Dkt. 208-7 at 32). The government opposes these requests. (See , e.g. , Dkt. 213 at 12; Dkt. 215 at 20-21; Dkt. 217 at 28). The Court denies the defendants’ requests. The Court finds persuasive the comment by Magistrate Judge Feldman that it is prudent to adopt a policy "requiring each defense counsel to independently file motions on behalf of their clients and not simply file boilerplate motions seeking to ‘join in relevant motions of co-counsel.’ One of the reasons for this policy is that co-defendants may not pursue their motions for a variety of reasons, including entering a plea of guilty." United States v. Marshall , No. 09-CR-6116, 2011 WL 4745003, at *1 n.1 (W.D.N.Y. Sept. 15, 2011), report and recommendation adopted , 2011 WL 4753458 (W.D.N.Y. Oct. 7, 2011). Accordingly, the boilerplate requests for joinder filed by each of the defendants who filed motions are denied without prejudice. See United States v. Jones , No. 5:05-CR-322 (NAM), 2006 WL 8457523, at *12 (N.D.N.Y. Sept. 26, 2006) ("Defendants do not, however, specify which motions they believe are consistent with their positions. Thus, the Court has no basis on which to determine the propriety of any defendant joining any other defendant's motion. Accordingly, defendants’ motions to join co-defendants’ motions are denied.").
XIX. Leave to Make Other Motions
Each of the moving defendants also seeks leave to file further future motions that may become necessary. (Dkt. 186 at 44-45; Dkt. 187 at 9-10; Dkt. 189-1 at 11; Dkt. 190-2 at 24). The government opposes the defendants’ blanket requests in this regard. (Dkt. 213 at 13; Dkt. 214 at 37-38; Dkt. 215 at 33; Dkt. 216 at 19-20). Like the boilerplate motions for joinder, the Court denies the boilerplate motions for leave. In the event that the defendants desire to file a subsequent pretrial motion that is untimely, they should seek leave to do so and explain why the motion was not filed in a timely fashion (e.g. , based on newly discovered information, a good cause basis for not initially filing, etc. ). Thus, the motions for leave to file additional motions are denied without prejudice.
XX. Wilson's Supplemental Motion
Wilson filed a supplemental motion seeking specific discovery pertaining to prior Buffalo Police Department incident reports at certain relevant addresses and a June 2005 investigation of a shooting. (Dkt. 203). At oral argument on May 20, 2021, Wilson's counsel relied on his papers in support of that motion. (Dkt. 230 at 69-70). However, because the Court has questions about these requests and requires further information, the Court reserves decision on Wilson's supplemental motion.
XXI. Government's Requests for Reciprocal Discovery
The government has sought reciprocal discovery pursuant to Federal Rule of Criminal Procedure 16(b) from each of the moving defendants. (Dkt. 213 at 13-14; Dkt. 214 at 39-40; Dkt. 215 at 33-34; Dkt. 216 at 20; Dkt. 217 at 29). The government also has requested notice pursuant to Federal Rule of Evidence 807. (Id. ). Counsel for Wilson, Cobb, Clark and Bell voiced no objection to this request at the oral argument on May 20, 2021 (Dkt. 230 at 63), and accordingly the government's request for reciprocal discovery and notice pursuant to Rule 807 as to each of those defendants is granted.
CONCLUSION
For the foregoing reasons and as set forth in detail above, the defendants’ pretrial motions are granted in part, denied in part, and reserved in part.
SO ORDERED.