USA v. Moore

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v.
DERREL LEMORN MOORE, JR.,
a/k/a Derrel Austin,
Defendant.
REPORT, RECOMMENDATION
AND ORDER
Case No. 1:24-cr-162 (RJA)(JJM)
Defendant Derrel Lemorn Moore, Jr.1 is charged in a four-count Indictment [23]2
with controlled substance and firearm related offenses. Before the court are Moore’s pretrial
motions for: 1) suppression; 2) dismissal; 3) inspection of grand jury minutes; 4) costs; 5) Brady
materials; and 6) pre-trial notices. [37, 38]. The government cross-moved for reciprocal
discovery. [49] at 28. The motions have been referred to me by District Judge Richard J. Arcara
for initial consideration [25].
Having heard oral argument and considered the parties’ submissions, for the
following reasons the government’s cross-motion for reciprocal discovery is granted, Moore’s
non-dispositive motions are denied, and I further recommend that his motion to dismiss be
1 	Defendant was indicted under the name of Derrel Austin. See [23]. However, the indictment was
later amended to reflect his legal name, Derrel Lemorn Moore, Jr. See [77]. I will refer to defendant as
“Moore” throughout this decision.
2 	Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF
pagination.
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 1 of 21

- 2 -
denied. His motion for suppression is addressed in a separate Report and Recommendation
[138], which addresses most of the relevant factual background, as supplemented herein.
BACKGROUND
Moore was arrested and indicted on state charges related to the firearms and
controlled substances. Austin Declaration [37], ¶¶ 24-28. His case on the state charges
continued through October 21, 2024, when it was dismissed. Id., ¶ 63. Moore has been in
custody (state or federal) since his arrest on February 17, 2022. Id., ¶135.
Moore was charged with violations of federal law by Complaint on October 4,
2024. [1]. On December 17, 2024, he was indicted by a federal grand jury on four charges:
possession with intent to distribute fentanyl (Count 1) and cocaine (Count 2) (violations of 21
U.S.C. §841(a)(1) and 841(b)(1)(B)); possession with a firearm in furtherance of drug trafficking
(Count 3) (18 U.S.C. §924(c)(1)(A)(i)); and being a felon in possession of firearms (Count 4) (18
U.S.C. §§922(g)(1) and 924(a)(8)). [23].
DISCUSSION
A. 	Moore’s Motions
1. 	Suppression
Moore moves to suppress the evidence obtained from the search of his
apartment building on February 17, 2022 ([37], ¶¶ 68-117) and the subsequent statements he
made to FBI Special Agent Middlebrooks later that night ([38]). These motions are addressed
separately [138].
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 2 of 21

- 3 -
2. 	Dismissal of the the Indictment Pursuant to Rule 48(b)
Fed. R. Crim. P. (“Rule”) 48(b) states that the “[t]he court may dismiss an
indictment, information, or complaint if unnecessary delay occurs in: (1) presenting a charge to a
grand jury”. Moore moves to dismiss the Indictment due to the delay between the time of the
search (February 17, 2022) and the first filing of federal charges (October 4, 2024). Declaration
[37], ¶¶119-20. He points out that Special Agent Middlebrooks was present during the search,
interviewed him after the search, and had the information necessary to file the criminal
complaint (which Agent Middlebrooks signed) on February 17, 2022. Id., ¶121. He argues:
“The belated decision to prosecute federally was clearly aimed at
gaining a tactical advantage by restarting the speedy trial clock in
a new jurisdiction, thereby obtaining a second chance to prosecute
the defendant after deferring once before, and after the stated had
botched its case. This jurisdiction swapping back and forth and the
lengthy delay is inappropriate, and it clearly deviates from the
normal standards of ‘fair play and decency’”.
Id., ¶122 (citing United States v. Marion, 404 U.S. 307 (1971).
In support of his motion, Moore points to his lengthy period of pretrial detention
and the county prosecutor’s missteps in his Niagara County Court case. Id., ¶¶123-33, 135. He
asserts there are issues with the evidence procured during the county investigation. Id., ¶134.
Moore claims he is prejudiced by the delay in bringing federal charges. Id., ¶¶137-42.
In response, the government argues that it filed charges well within the statute of
limitations period, and points out that it is not responsible for the conduct of state prosecutors s.
[49] at 15-16. I agree with the government. Indictments filed within the applicable statute of
limitations “carry a strong presumption of validity and are only rarely dismissed”. United States
v. Alharbi, 2024 WL 939629, *1 (2d Cir. 2024) (Summary Order), citing United States v.
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 3 of 21

- 4 -
Cornielle, 171 F.3d 748, 752 (2d Cir. 1999). Nevertheless, Moore is correct that a pre-
indictment delay can be a constitutional violation.
“An indictment brought within the time constraints of the statute
may nevertheless violate due process where pre-indictment delay
has been shown to cause substantial prejudice to the defendant’s
ability to present his defense and the delay was an intentional
device to gain a tactical advantage over the accused. . . . A
defendant bears the heavy burden of proving both that he suffered
actual prejudice because of the alleged pre-indictment delay and
that such delay was a course intentionally pursued by the
government for an improper purpose.”
United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999) (emphasis added). I will address
each prong of the test in turn.
a. 	Prejudice
Moore points to several types of prejudice he has suffered due to the particular
circumstances of this case and the county prosecutor’s missteps, including: a significant period
of pretrial detention; deterioration of his physical and mental health; not seeing his daughter or
grandchildren; the death of nine family members since his arrest; and the loss of his property,
vehicles, the opportunity to earn wages, and many thousands of dollars on attorneys to represent
him in the county case. [37], ¶¶135, 140; [63] at 25.
Although I certainly understand Moore’s frustration, this is not the sort of
prejudice that can satisfy the test. “Prejudice in this context has meant that sort of deprivation
that impairs a defendant’s right to a fair trial. . . . This kind of prejudice is commonly
demonstrated by the loss of documentary evidence or the unavailability of a key witness”.
Cornielle, 171 F.3d at 752; see also Alharbi, 2024 WL 939629, *1 (“Actual prejudice means
prejudice that is not speculative”).
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 4 of 21

- 5 -
Moore has not identified any such prejudice. Moore contends that he “has
difficulty remembering some things about that night” and that “it is likely that witnesses called
by the government no longer have a fresh recollection of what happened almost 3 years ago”.
[]37], ¶137. However, this type of speculative prejudice in the context of a pre-indictment delay
is insufficient:
“Appellees rely solely on the real possibility of prejudice inherent
in any extended delay: that memories will dim, witnesses become
inaccessible, and evidence be lost. In light of the applicable statute
of limitations, however, these possibilities are not in themselves
enough to demonstrate that appellees cannot receive a fair trial and
to therefore justify the dismissal of the indictment. Event of the
trial may demonstrate actual prejudice, but at the present time
appellees’ due process claims are speculative and premature.”
Marion, 404 U.S. at 325-26.
Mooer also alleges prejudice to his ability to produce evidence because “some law
enforcement witnesses have retired, and the location of one Niagara Falls police officer who the
defendant intended to call as a witness was allegedly unknown by the state prosecutor”. [37],
¶138. In addition, he asserts that “in September of 2024 the People admitted on the record that
P.O. Michelle Hunsinger’s location was unknown and that they had not known her whereabouts
for at least a year.” Id. Ms. Hunsinger “is one of the three different people who conducted
ballistics tests of the firearms on three separate occasions”. Id. Moore argues that if Ms.
Hunsinger “was terminated (as seems to be the case) the defendant has a right to cross examine
[this] officer about the reasons for her termination”. Id. Finally, he asserts that, had the
government indicted him in February 2022 instead of deferring to county’s prosecution,
“Summer Cook never would have been threatened and intimidated by [the ADA] and the
defendant would have an exculpatory witness”. Id., ¶139.
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 5 of 21

- 6 -
This argument does not satisfy his burden to demonstrate actual prejudice.
Moore’s supposition concerning a possible alternative outcome of events concerning Ms. Cook
had the federal government taken the lead in pursuing a case against the defendant is entirely
speculative. Moreover, he does not indicate what the expected testimony of the retired officer(s),
P.O. Hunsinger, or Summer Cook’s would be, or how it would be material to his defense. Nor
has he shown that the information cannot be obtained from other evidence available in his case.
See United States v. Baptiste, 84 Fed. Appx. 153, *1 (2d Cir. 2004) (Summary Order)
(“defendant claims her father’s death prior to trial prejudiced her defense. The father’s
unavailability as a witness, however, does not constitute actual prejudice because the availability
of other evidence, including other witnesses, diminishes, or even eliminates, the prejudicial
effect of a witness’ unavailability”).
b. 	Intentional Delay for an Improper Purpose
“Having decided there is no prejudice, we need not examine whether the
government’s reasons for the . . . delay were proper”. Cornielle, 171 F.3d at 753. However,
even if Moore’s showing of prejudice was sufficient, I would nonetheless recommend that his
motion be denied. Prejudice to a defendant’s ability to mount a defense is insufficient on its
own. He must also demonstrate that the government intentionally delayed his indictment for an
improper purpose. 	Moore makes no such showing here.
Moore argues that “[t]he belated decision to prosecute federally was clearly aimed
at obtaining a tactical advantage by restarting the speedy trial clock in a new jurisdiction, thereby
obtaining a second chance to prosecute the defendant after deferring once before, and after the
state had botched its case.” [37], ¶122. He details at some length the missteps of the county
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 6 of 21

- 7 -
prosecutor. [37], ¶¶123-33. Moore characterizes the county prosecutor’s actions as improper
and outlines communications with the presiding judge that suggest he was frustrated with the
prosecutor’s handling of Moore’s case. Id., ¶¶ 123-132. However, all of the allegations of
misbehavior are directed at the county prosecutor, not the United States Attorney’s office.
Moore points out that the government here did not justify the timing of its filing
by claiming a need for further investigation. [63] at 24. However, none of the caselaw
concerning pre-indictment delays which he cites, or that I have reviewed, states that is the only
proper purpose that the government might delay an indictment. Nor does the case law state, or
even suggest, that in the absence of ongoing investigation, an improper purpose can be
presumed.
Here, the government represents:
“In this district, it is a regular occurrence of the United States
Attorney’s Office for the Western District of New York to work
with local law enforcement and District Attorney’s Offices.
Sometimes the federal government will take a case outright,
sometimes cases are adopted from the state, and sometimes the
government will decline a case and the state to handle prosecution.
Defendant[s] benefit from these decisions by not having to
simultaneously defend themselves in multiple forums at the same
time.
The delay in indicting the defendant was not due to some tactical
plan or collusion with Niagara County. . . . [A]t the time of the
defendant’s arrest the Niagara County District Attorney’s Office
took the lead on prosecution. The federal government neither filed
a complaint nor indicted the defendant at that time. In the fall of
2024, upon being informed that the Niagara County District
Attorney’s Office was planning to dismiss the case against the
defendant, the government reviewed the case and determined that
it would be within the statute of limitations and appropriate to file
charges.”
[49] at 17.
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 7 of 21

- 8 -
Moore suggests that the U.S. Attorney’s pursuit of his case after being informed
that the Niagara County District Attorney’s Office was planning to dismiss his case was not “a
routine example of the coordination between state and federal cases”, and argues that the
government here “fil[ed] federal charges after almost three yeas at the behest of a state
prosecutor for the purpose of preventing a defendant from exercising his right to trial”. [63] at
24.
However, aside from his supposition, Moore presents no evidence that suggests
the U.S. Attorney’s Office did anything other than what it said - namely, reviewed the available
evidence after learning that the state charges were being dismissed, and made an independent
decision to pursue federal charges that were within the statute of limitations. Nothing in the way
that the U.S. Attorney’s Office has conducted itself in this matter suggests that office made its
decision “for the purpose” of preventing defendant from exercising his right to a trial on the state
charges. Moore points to no interaction, submission, or statement with or from the U.S.
Attorney’s Office that suggests any such purpose for the pre-indictment delay, nor any collusion
with the Niagara County District’s Attorney’s Office to purposely delay filing an indictment in
the event the state case went poorly.
Moore suggests that the U.S. Attorney’s Office changed its view of his case once
“defendant was poised to win and the state prosecutor asked for and received a favor”. [37],
¶143. He states that one of his attorneys contacted the U.S. Attorney’s Office to inquire about
the possibility of a federal prosecution and was told that “the federal government was not
interested in this case”. Id. His implication that the reasons for the U.S. Attorney’s actions were
improper is conjecture. Further, he cites no case suggesting that a U.S. Attorney’s office cannot
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 8 of 21

- 9 -
change its mind3 concerning a prosecution, especially where, as here, the state charges were
being dismissed and the government had sufficient evidence to pursue an indictment of a
violation of federal law.
Finally, Moore points to several evidentiary issues which he claims “will make
the burden of proof beyond a reasonable doubt much more difficult to meet”. [37], ¶134. Maybe
so, but these are issues for trial and do not appear to implicate either prong of the test for pre-
indictment delay. Thus, Moore has failed to satisfy his “heavy burden” to demonstrate that the
government “intentionally pursued” delay here “for an improper purpose”. 	Cornielle, 171 F.3d
at 752. For all these reasons, I recommend that Moore’s motion to dismiss the Indictment due to
pre-indictment delay be denied.
3. 	Motion to Dismiss Count 3 of the Indictment for Insufficient Evidence
Moore next moves to dismiss Count 3 of the Indictment for insufficiency of the
evidence. [37] at 49. Count 3 alleges:
“On or about February 17, 2022, in the Western District of New
York, the defendant [DERREL LEMORN MOORE, JR.], in
furtherance of drug trafficking crimes for which the defendant may
be prosecuted in a court of the United States, that is, a violation of
[21 U.S.C. §841(a)(1)], committed in a manner set forth in Counts
1 and 2 of this Indictment, the allegation of which are incorporated
herein by reference, did knowingly and unlawfully possess
firearms.
All in violation of [18 U.S.C. §924(c)(1)(A)(i).”
3 	I note that the U.S. Attorney for the Western District of New York in February of 2022 was Trini
Ross. She was replaced in February 2025 by Acting U.S. Attorney Joel Violanti following the
inauguration of a new administration in January 2025, who was succeeded by U.S. Attorney Michael
DiGiacomo on February 28, 2025.
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 9 of 21

- 10 -
[1] at 2.
Moore argues that this Count should be dismissed because there is “insufficient
evidence that [he] was in possession of any illegal items on February 17, 2022”. [37], ¶147. He
then outlines numerous issues that he perceives with the evidence in this case. See Id., ¶¶ 147-
57. However, these evidentiary issues identified are more appropriately argued before a jury.
“In general, an indictment is not defective because the defendant did not have an opportunity to
present his version of the facts before the grand jury.” United States v. Ciambrone, 601 F.2d
616, 623 (2d Cir. 1979). Nor was the government obligated to bring these evidentiary issues to
the grand jury’s attention. “[A] prosecutor is not presently obligated to search for and submit to
grand jury evidence favorable to the defense or negating guilt, when it has not been requested by
the grand jury.” Id. at 622.
In his Supplemental Reply, Moore makes a more specific argument based upon
the testimony of FBI Special Agent Curtis Middlebrooks. He argues that “the prosecutor offered
absolutely no evidence whatsoever of a ‘nexus’ between the firearm and the underlying crime
such that the firearm advances or promotes a drug crime”. [64] at 13. However, rather than “no”
evidence, a review of the evidence presented though Agent Middlebrooks’ testimony indicates
that the grand jury was aware that the firearms recovered on February 17, 2022 were found near
the drugs that were also recovered on that day at the same time, and in the same location. See
Transcript of Agent Middlebrooks, [64] at 8-9. The proximity of the firearms to the drugs
supports the grand jury’s finding of probable cause that there was a “nexus” between the
firearms and the drugs. Further, the grand jury had evidence that could support a finding of
probable cause that it was defendant who possessed both items, including the observations of
officers inside and outside of the building.
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 10 of 21

- 11 -
Whether there is proof beyond a reasonable doubt to convict Moore of this charge
is a question for the jury. I therefore recommend that Moore’s motion to dismiss Count 3 be
denied.
4. 	Motion to Dismiss the Indictment Due to Outrageous Conduct
Moore moves to dismiss the Indictment in its entirety due to a lack of due process
at the time of the search of his apartment and due to the “collusion between the state prosecutor
and the federal government to deprive the defendant of a trial and appellate process in state court
to gain a tactical advantage by unfairly restarting the prosecutorial process in federal court while
the defendant has been detained since 2022 represents outrageous government conduct that
requires dismissal of the indictment”.
In his Supplemental Reply, Moore makes more specific arguments based upon the
testimony of FBI Special Agent Curtis Middlebrooks before the grand jury. See [64]. Based
upon Agent Middlebrooks’ testimony, he argues that the Indictment should be dismissed because
the government presented hearsay testimony to the grand jury (id. at 4-6), presented
Middlebrooks’ testimony through excessively leading questions (id. at 6), presented inaccurate
and misleading information to the grand jury (id. at 6-8), presented prejudicial information to the
grand jury for no reason (id. at 8-11), and presented scientific evidence to the grand jury through
an unqualified witness (id. at 11-13). I address each of these in turn.
a. 	Hearsay Testimony
While Moore correctly notes that the use of hearsay testimony before the grand
jury is “disfavored” (id. at 5), it remains the law of this Circuit that “[i]t is entirely permissible
for the government to use hearsay evidence in its presentation to the grand jury”. United States
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 11 of 21

- 12 -
v. Ruggiero, 934 F.2d 440, 447 (2d Cir., 1991); see also United States v. Hilts, 757 Fed. Appx.
56, 59 (2d Cir. 2018) (Summary Order) (“[g]rand juries may indict a defendant on hearsay
alone”). An indictment should be dismissed for use of hearsay evidence only where:
“(1) the government misleads the grand jury into thinking it is
receiving firsthand testimony when it is in fact receiving hearsay or
(2) if there is a high probability that the defendant would not have
been indicted had only nonhearsay evidence been used”.
Ruggiero, 934 F.2d at 447.
Neither of these circumstances is present here. The government made it clear at
the outset of Middlebrooks’ testimony that he was presenting information from a report written
by Detective Travis, and that the information in the report was not Middlebrooks’ statement or
based on his own observations. [64] at 21-22. After Middlebrooks’ reading of Travis’s
statement, the govenment clarified for the grand jury that the content of the report was from
Travis, not Middlebrooks. Id. at 29. Middlebrooks then went on to testify concerning his own
observations. Id. at 29-44.
With respect to Middlebrooks’ testimony concerning statements by Summer Cook
to law enforcement, the government and Agent Middlebrooks noted that her various statements
were inconsistent. Id. at 44. The statements themselves were exhibits available to the grand
jury, and the government made clear that those statements were Ms. Cooks’, not Moore’s. Id. at
45, 47. Middlebrooks testified about information in the various reports concerning further
investigation into Ms. Cooks’ statements. Id. at 45-47.
Because both the government and Middlebrooks made it clear during his
testimony what information was being presented from other sources, and what information was
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 12 of 21

- 13 -
based upon his own observations, I find that the use of hearsay evidence here did not mislead
the grand jury.
Further, there is no claim here that the information presented by Middlebrooks
and the government was not an accurate reflection of the documentary evidence. I therefore find
that, even had the information been presented by Travis himself, there is not a significant
probability that Moore would not have been indicted.
b. 	Leading Questions
Moore argues that the government’s use of leading questions during portions of
questioning of Middlebrooks warrants dismissal of the Indictment. The only case cited by
Moore in support of this position is United States v. Brito, 907 F.2d 392 (2d Cir. 1990). There,
the court noted that “leading questions tend to mute one of the chief functions of the grand jury,
the evaluation of the strength of the evidence and the credibility of witnesses”. Id. at 395. The
Indictment under consideration there was obtained by a prosecutor solely on the basis of hearsay
testimony that was elicited from a single witness using leading questions. That grand jury
presentation also involved “questionable instructions” given to the grand jury. 	The Second
Circuit concluded:
“Despite these failings, however, we cannot conclude at this time
either that the single-witness policy constitutes such ‘systematic
and pervasive’ prosecutorial misconduct as would undermine
fundamental fairness, or that the rights of either defendant were
violated before the grand jury. The testifying agent did establish
that his testimony about [defendants] was derived from
conversations with other agents and from a review of the case file;
the prosecutor did warn the grand jurors, however clumsily, about
the hearsay nature of the agent’s testimony; and most importantly,
the agent’s testimony to the grand jury was concededly accurate.
Thus , we cannot say that the grand jury was misinformed or
misled in this case, or that there was prejudice to the defendants”.
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 13 of 21

- 14 -
Id. at 395-96.
Here, where the information provided accurately reflected the documentary
evidence, and there is no evidence the jury was misled, the use of leading questions is not a basis
to invalidate the Indictment.
c. 	Inaccurate and Misleading Testimony
Moore takes issue with the manner in which the DNA analysis report was
presented to the grand jury. He contends that the government stated that the DNA testing was
“conducted by” the Erie County Central Police Services Forensic Laboratory, but that the testing
was actually conducted “at” the Erie County laboratory, but “by” an employee of the Niagara
County Forensics Laboratory. [64] at 7. He contends this was a “material misrepresentation” and
a “clever slight of hand” because the “Niagara County Forensics Lab . . . was under investigation
by the State Commission on Forensic Science in 2023 for various violations including
fabricating and backdating training documentation and conduct unbecoming of a laboratory”. Id.
I find this error harmless. Even if the preposition “at” was intentionally used in
lieu of “by”, the report submitted to the grand jury as an exhibit, which is on Erie County Central
Police Services Forensic Laboratory letterhead, was signed by K. Paul Meyers, who is clearly
identified under his signature as a “Niagara Co. Sr. Forensic Criminalist”. [64] at 62. Therefore,
this is not a basis to invalidate the Indictment.
d. 	Presentation of Prejudicial Information about Moore
Moore next argues that “there was no legitimate reason to disclose the
Defendant’s criminal history to the grand jury. His criminal history was not probative of an any
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 14 of 21

- 15 -
element of any crime charged in the federal complaint”. Id. at 9. This is incorrect. Count II of
the Complaint charged Moore with being a felon in possession of a firearm. [1]. This violation
is also charged in Count 4 the Indictment:
“On or about February 17, 2022, in the Western District of New
York, the defendant, [DERREL LEMORN MOORE, JR.],
knowing that he had previously been convicted on or about
January 31, 1996, and December 3, 2009, in Erie County Court,
Buffalo, New York, of crimes punishable by imprisonment for a
term exceeding one year, did knowingly possess, in and affecting
interstate commerce, firearms . . .
All in violation of [18 U.S.C. §§922(g)(1) and 924(a)(8)].”
[23] at 3.
Because Moore’s prior felony convictions are an element of the crime charged in
Count 4 of the indictment, it was necessary to present testimony concerning his criminal history
to the grand jury. While mentioning his parole-for-life status may have been superfluous and
unnecessary, it was not the sort of conduct that warrants dismissal on the Indictment.
For example, in United States v. Serubo, 604 F.2d 807 (3d Cir. 1979), cited by
Moore, the court found “the prosecutor’s misconduct was extreme”. Id. at 818. It included a
“graphic and misleading reference to Cosa Nostra hatchet men” which was “a blatant invitation
to associate the defendants with a disfavored criminal class”. Id. In United States v. Hogan, 712
F.2d 757 (2d Cir. 1983), also cited by Moore, the government characterized the defendant to the
grand jury as a “real hoodlum”, presented hearsay evidence that the defendant had committed
murders for which he was never charged, and stated to the grand jury that defendant should, “as
a matter of equity” be charged even if he had backed out of the drug deal that was the subject of
the grand jury proceeding. See id. at 760-61.
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 15 of 21

- 16 -
No such inflammatory rhetoric was present here. I therefore find that the government’s
presentation of Moore’s criminal history had a legitimate purpose and was not prejudicial.
e. 	Scientific Evidence Presented by Unqualified Witness
Finally, Moore argues that the Indictment should be dismissed because
Middlebrooks testified about the DNA report in lieu of someone with technical or scientific
expertise. Moore does not cite any case that supports this argument. He cites United States v.
Estepa, 471 F.2d 1132 (2d Cir. 1972) to support the statement that “[t]he prosecutor’s choice to
present scientific evidence via an unqualified witness demonstrates an inappropriately, ‘casual
attitude with respect to the presentation of evidence to a grand jury,’” [64] at 11, citing Estepa,
471 F.2d at 1135. However, Estepa did not involve the presentation of DNA evidence (or any
other forensic evidence) to a grand jury. It primarily concerned hearsay testimony being
delivered to the grand jury by a policeman with “extremely limited personal knowledge” of the
facts to which he testified, without making it clear to the grand jury that his testimony was
hearsay. Id. at 1134.
Here, Middlebrooks testified about the DNA report, but did not claim to be an
expert. [64] at 47. He made it clear that he did not personally conduct the testing. Id. He
identified the report and explained how he received it. Id. at 48. He then explained what
evidence was tested and read from the conclusions of the report. Id. at 49-50. At no point did he
or the government attempt to mislead the grand jury concerning the contents of the report, the
tested evidence, or the conclusions stated in the report. Moreover, the report was an exhibit
given to the grand jury and they were able to assess its contents on their own.
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 16 of 21

- 17 -
For these reasons, including those stated above concerning Moore’s
arguments to dismiss the Indictment pursuant to Rule 48(b), I recommend that the court deny his
motion.
5. 	Motion for Disclosure of Grand Jury Minutes
Moore seeks disclosure of grand jury materials. See [37], ¶¶ 159-168; [63] at 32-
35. “The burden is on the party seeking disclosure to show a particularized need that outweighs
the need for secrecy.” In re Grand Jury Subpoena, 103 F.3d 234, 239 (2d Cir. 1996). Moore
argues that “the secrecy that shrouds most cases is not present in the Defendant’s case because he
already knows the general substance of what would have been testified to as well as the identities
of who would have testified”. [63] at 33. He has not, however, identified any “particularized
need” for the grand jury testimony.
Further, Moore was provided with Middlebrooks’ grand jury testimony. Even so,
as discussed above, he has failed to identify any misconduct or irregularity concerning the grand
jury proceedings that would warrant disclosure of the remaining grand jury minutes. The
supposition in his moving papers that allegedly false testimony provided by probation officers to
the grand jury in the county proceeding concerning how they obtained the key code to his
building ([37], ¶¶ 161-64) was replicated here is not persuasive. There is no showing of any
misconduct before the federal grand jury. Furthermore, he is contesting those facts in his motion
for suppression, and they are discussed in my separate Report and Recommendation [138]. There
is no “particularized need” for disclosure of the remaining grand jury minutes in this proceeding.
Next, Moore argues that he should be permitted to review the grand jury minutes
to “determine if the presentation was misleading in any way with respect to identification
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 17 of 21

- 18 -
testimony”. Id., ¶54. He did not repeat that argument after reviewing the grand jury testimony
of Agent Middlebrooks. However, Middlebrooks’ testimony accurately reflected that the officer
stationed outside Moore’s apartment building described the person he saw on the rear landing as
“a male” wearing “light gray attire”. [64] at 25. This argument, therefore, cannot be a
“particularized need” that warrants disclosing the remaining grand jury minutes.
Moore’s final argument for releasing the balance of the grand jury minutes is “to
verify that the DNA evidence was appropriately presented”. [37] at 54. The “DNA Analysis
Report” was submitted to the grand jury. Neither the government nor Middlebrooks
misrepresented its contents. Accordingly, this argument also does not show a “particularized
need” for those materials. Moore’s motion to inspect the remaining grand jury minutes is
therefore denied.
6. 	Motion for Brady and Giglio Material
“The government’s obligations under Brady4 . . . are seemingly well-established.
The prosecution has a constitutional duty to disclose evidence favorable to an accused when such
evidence is material to guilt or punishment . . . . This duty covers not only exculpatory material,
but also information that could be used to impeach a key government witness.” United States v.
Coppa, 267 F.3d 132, 135 (2d Cir. 2001) (citing Giglio v. United States, 405 U.S. 150, 154
(1972)). “[A]s a general rule, Brady and its progeny do not require immediate disclosure of all
exculpatory and impeachment material upon request by a defendant”. Id. at 146. “[A]s long as a
defendant possesses Brady evidence in time for its effective use, the government has not
4 	Brady v. Maryland, 373 U.S. 83 (1963).
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 18 of 21

- 19 -
deprived the defendant of due process of law simply because it did not produce the evidence
sooner.” Id. at 144. “[T]he time required for the effective use of a particular item of evidence
will depend on the materiality of that evidence . . . as well as the particular circumstances of the
case”. Id. at 146.
The government generally contends that Moore’s motion should be denied, since
it “is fully aware of its obligations and responsibilities under Brady and acknowledges its
continuing duty under Brady to produce such material, if and when it is aware of it.” [49] at 18.
Consistent with the Due Process Protections Act and Rule 5(f)(1), earlier in this case I also
confirmed the government’s Brady obligations and cautioned it that the failure to timely make
such disclosures would result in a variety of consequences, including dismissal of charges and
sanctions [9, 29].
The government also “agrees to provide impeachment Giglio material . . . in
accordance with the schedule set by the District Court prior to trial and no later than when the
government produces and delivers the Jencks Act material in this case.” [49] at 20. I have no
reason to doubt that the government will fully comply with its Brady and Giglio obligations.
Therefore, this motion is denied.
7. 	Motion for Other Discovery under the Federal Rules of Evidence
Moore moves for pretrial notices pursuant to the Rules 408(b), 608, and 609 of
the Federal Rules of Evidence. The government agrees that it “will provide notice of such
information to the defense pursuant to the District Court’s trial Scheduling Order, which has yet
to be issued.” [49] at 26. Based on the government’s representations, this motion is denied.
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 19 of 21

- 20 -
B. 	Government’s Cross-Motion for Reciprocal Discovery
The government moves for reciprocal discovery pursuant to Rule 16(b). [49] at
28. Moore does not oppose this request, but states that “[a]t this time, [he] is not in possession of
any items of discovery thar the Government does not either have or have access to. Should such
items become available to the Defendant, he will comply to the best of his ability with all federal
rules of criminal procedure and evidence, as well as the order of the court”. [63] at 35.
Therefore, the government’s motion is granted. Moore “shall provide such discovery, if any, not
later than 30 days prior to trial or such other date as the District Judge may direct.” United States
v. Sikut, 488 F.Supp.2d 291, 304-05 (W.D.N.Y. 2007).
CONCLUSION
For these reasons, the government’s cross-motion for reciprocal discovery is
granted, Moore’s non-dispositive motions are denied, and I further recommend that his motions
to dismiss all or part of the Indictment be denied.
Unless otherwise ordered by Judge Arcara, any objections to this Report,
Recommendation and Order must be filed with the clerk of this court by November 7, 2025.
Any requests for extension of this deadline must be made to Judge Arcara. A party who “fails to
object timely . . . waives any right to further judicial review of [this] decision”. 	Wesolek v.
Canadair Ltd., 838 F. 2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Moreover, the district judge will ordinarily refuse to consider de novo arguments,
case law and/or evidentiary material which could have been, but were not, presented to the
magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal
Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 20 of 21

- 21 -
The parties are reminded that, pursuant to Rule 59(c)(2) of this Court’s Local
Rules of Criminal Procedure, “[w]ritten objections . . . shall specifically identify the portions of
the proposed findings and recommendations to which objection is made and the basis for each
objection, and shall be supported by legal authority”, and pursuant to Local Rule 59(c)(3), the
objections must include “a written statement either certifying that the objections do not raise new
legal/factual arguments, or identifying the new arguments and explaining why they were not
raised to the Magistrate Judge”. Failure to comply with these provisions may result in the
district judge’s refusal to consider the objection.
Dated: October 24, 2025
___/s/ 	Jeremiah J. McCarthy ___
JEREMIAH J. MCCARTHY
United States Magistrate Judge
Case 1:24-cr-00162-JLS-JJM Document 139 Filed 10/24/25 Page 21 of 21