USA v. Busch et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v.
Cody Busch, et al,
Defendants.
Hon. Hugh B. Scott
09CR331A
Decision &
Order
Before the Court are the following motions filed by the respective defendants: Cody
Busch (“Busch”)(Docket Nos. 544, 561, 664, 701, 736, 825); Tony Peebles (“Peebles”)(Docket
No. 522); Johnathan Serrano (“Serrano”)(Docket No. 918); Justin Augus (“Augus”)(Docket
Nos. 551 , 873); Mathew Deynes (Docket Nos. 546, 657, 684, 737) Nourooz Ali (“Ali”)(Docket
Nos. 545, 596, 667); Desmond Ford (“Ford”)(Docket Nos. 556, 674, 927); Omar Hernandez
(“Hernandez”)(Docket No. 550); Melvin Medina (Docket No. 507, 925); Michael Bobbitt
(“Bobbitt”)(Docket Nos. 660, 948); Daniel Colon (“Colon”)(Docket Nos. 557, 659, 700, 860,
937); Mattthew Smith (“Smith”)(Docket No. 519, 705, 762); Chaztity Fluellen
(“Fluellen”)(Docket No. 527); David Deynes (Docket Nos. 500, 663); Charles Watkins
(“Watkins”) (Docket Nos. 509, 732); Derrick Yancey (“Yancey”)(Docket Nos. 651, 759); Sam
Thurmond (“Thurmond”)(Docket No. 553); Jonathan Delgado (“Delgado”)(Docket No. 512,
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926); Ismael Lopez (“Lopez”) (Docket Nos. 614, 669, 730); Domenico Anastasio
(“Anastasio”)(Docket No. 548); Darnell McIntosh (“McIntosh”)(Docket No. 513); Miguel
Moscoso(“Moscoso”)(Docket Nos. 342, 432).1
Background
On February 2, 2012, the Grand Jury for the Western District of New York issued a 74-
count Fourth Superceding Indictment naming 29 individual defendants. (Docket No. 408). The2
The following motions are moot inasmuch as the respective defendants have entered1
guilty pleas in this matter: Hector Hernandez (Docket Nos. 549, 665); Douglas Harville (Docket
No. 349); Benjamin Medina (Docket Nos. 533, 559, 806). Various motions seeking extensions
of time have been previously determined and are also moot. (Docket Nos. 533, 633, 631, 668,
675, 680). In addition, motions by some of the defendants to waive their appearance at the
evidentiary hearings (Docket Nos. 759, 754, 767) are also moot. Finally, defendant Miguel
Moscoso has made a motion for an immediate trial which was resolved by District Judge Richard
J. Arcara (Docket No. 834). In connection with that motion, Moscoso has withdrawn his requests
for pretrial hearings (See Docket No. 731, ¶8).
The initial indictment was issued on September 30, 2009 charging only Busch with2
various drug crimes (Docket No. 1). On November 25, 2009, the First Superceding Indictment
was issued charging defendants Busch; Peebles, Kyle Eagan, Serrano, Augus, and Saul Santana
with racketeering and various other drug trafficking and gun charges. (Docket No. 9). The
Second Superceding Indictment was issued on September 15, 2010 naming 27 defendants: 27
defendants – Busch (1) Peebles (2) Eagan (3) Serrano (4) Augus (5) Santana (6) M. Deynes (7)
Ali (8) Efrain Barreto (9) Ford (10) Jimmarlan Sessions (11) Omar Hernandez (12) Melvin
Medina (13) Moscoso (14) Rodriguez (15) Jimmy Sessions (16) Michael Bobbitt (17) Brandon
Bobbitt (18) Renel Velasquez (19) Colon (20) Douglas Harville (21) Jairo Hernandez (22)
Matthew Smith (23) Hiram Lopez (24) Edwin Rivera (25) Jimmy Reuther (26) Chaztity Fluellen
(27). (Docket No. 69). A Third Superceding Indictment was issued on April 28, 2011 adding
David Deynes, Watkins, Yancey as defendants, bringing the total number of defendants up to 30.
(Docket No. 226). The Fourth Superceding Indictment, issued February 2, 2012, added
defendants Christopher Pabon, McIntosh, Ismeal Lopez, Anastasio, Michael Hernandez, Delgado
and Thurmond. This indictment only lists 29 defendants because the following previously named
defendants entered into plea agreements: Eagan (Docket No. 284), Barreto (Docket No. 339),
Jimmarlan Sessions (Docket No. 330), Velasquez (Docket No. 323), Harville (Docket No.
392), Jairo Hernandez (Docket No. 391), Hiram Lopez (Docket No. 196), Edwin Rivera
(Docket No. 173) and Jimmy Reuther (Docket No. 122). The following defendants have entered
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remaining defendants include the following 22 individuals: Busch, Peebles, Serrano, Augus,
Matthew Deynes, Ali, Ford, Hernandez, Medina, Moscoso, Bobbitt, Colon, Smith, Fluellen,
David Deynes, Watkins, Yancey, McIntosh, Lopez, Anastasio, Delgado and Thurmond. The
underlying charges are based upon the alleged activities of a purported criminal street gang
referred to as “the 10 Street Gang.” The Fourth Superceding Indictment asserts a racketeeringth
conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”)(18
U.S.C. § 1962(d)) against all the remaining defendants except Fluellen and McIntosh [Count I].
Count 2 asserts substantive RICO charges against 14 defendants (11 of the remaining defendants:
Ali, Ford, Hernandez, Peebles, Augus, Medina, Moscoso, Busch, Yancey, Colon, and Smith)
[Count 2]. These charges are supported by 42 alleged racketeering acts. (Docket No. 408 at
pages 43-76). Smith, Anastasio and Lopez are charged with the murder of Brandon MacDonald
and Darinell Young [Counts 3 & 4]. Peebles, Ford and Hernandez are charged with attempted
murder and related crimes involving victims “B.C.” and “B.W.” [Counts 5-7]. Hernandez is also
charged with attempted murder and related weapons charges involving victim “J.B.” [Counts 8-
10]. Yancey and Ford are charged with the murder of Omar Fraticello-Lugo [Count 11].3
Yancey is charged with a weapons crime related to the Fraticello-Lugo murder. [Count 12].4
Moscoso is charged with the murder of Christian Portes and a a related weapons crime [Counts
into plea agreements since the filing of the Fourth Superceding Indictment: Santana (Docket No.
473), Jimmy Sessions (Docket No. 564), Brandon Bobbitt (Docket No. 654), Pabon (Docket
No. 573), Michael Hernandez (Docket No. 776) and Benjamin Medina (Docket No. 804).
Brandon Bobbitt, who has entered into a plea agreement, was also charged in these3
counts.
Counts 13-14 and 17-18, involving the attempted murder and murder of Anthony4
Colon, are asserted only against Santana, who has entered into a plea agreement.
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15-16]. Moscoso is also charged with assault with a dangerous weapon and a related weapons
charge involving victim “E.L.” [Counts 19-20]. Peebles and Augus are charged with attempted
murder and attempted assault of “rival gang members” along with related weapons crimes.
[Counts 21-23]. Peebles, Ford and Busch are charged with attempted murder, attempted assault
and various weapons crimes involving victim “M.S.” [Counts 24-27]. Peebles is also charged
with assault with a dangerous weapon and related weapons crimes involving victim “E.L.”
[Counts 28-29]. Peebles and Busch are charged with assault with a dangerous weapon and
related weapons crimes involving victim “M.C.” [Counts 30-32]. Peebles and Busch are also5
charged with the attempted murder, attempted assault and related weapons crimes involving
victim “E.H.” [Counts 33-35]. Augus is charged with the attempted murders and attempted
assaults of victims “C.M.” and “W.J.”, along with related weapons charges. [Counts 36-40].
Busch is charged with the attempted murder, attempted assault and related drug and weapons
crimes involving victim “V.M.” [Counts 41-46]. Moscoso is charged with attempted assault of6
victim “J.R.”, witness tampering and related weapons crimes. [Counts 48-50]. Moscoso is also
charged with another incident of witness tampering [Count 51]. Peebles and Colon are charged
with the attempted murder, attempted assault and related weapons crimes involving victim
“C.M.” [Counts 52-54]. Ali is charged with the attempted murder and related weapons crimes
involving victim “E.H” [Counts 55-56]. Peebles and Augus are charged with the attempted
murder, attempted assault and related weapons crimes involving victim “L.M.” [Counts 57-59].
Santana is also named in these counts.5
Count 47, involving cocaine possession, is asserted only against Rodriguez, who has6
entered into a plea agreement.
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Colon is charged with assault with a dangerous weapon and related weapons crimes involving
victim “J.H.” [Counts 60-61]. All of the remaining defendants, with the exception of Colon and
Anastasio, are charged with a narcotics conspiracy involving the possession and distribution of
cocaine, cocaine base and marijuana from 2000 to 2011. [Count 62]. All of the remaining7
defendants, with the exception of Colon, Anastasio, McIntosh and Fluellen, are charged with
possession of firearms in furtherance of a drug crime. [Count 63]. Defendants Hernandez,
Peebles, Ford, Fluellen and Smith are also charged, respectively, in various drug and weapons
crimes. [Counts 64-74]. The Fourth Superceding Indictment also includes forfeiture allegations.
Discovery
The defendants’ respective motions seek various types of pretrial discovery. During oral
argument, the defendants acknowledged that the government has produced voluminous discovery
in this case. (Docket No. 687 at 29, 39). The discovery in this case has been provided in
searchable electronic format (Docket No. 687 at page 81). In addition, the government has
provided each defendant with a summary chart of the discovery provided including the bates
numbers and a description of the discovery. For example, “000155 -000170- ** REDACTED**
BPD Crime Scene Unit & BPD report re: 08/12/2009 Assault/Shooting at 211 Bird.” and
“000171-000182: color photos as they relate to 08/12/2009 incident.” (Docket No. 612-1 at page
1). This information provides the respective defendants with a roadmap to the discovery relating
to the various incidents in which they are alleged to have participated.
Defendants Santana, Rodriguez, Jimmy Sessions, Brandon Bobbitt, Michael7
Hernandez and Benjamin Medina, all of whom have entered into plea agreements, are also
named in this count.
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Specific discovery issues were addressed in the Court’s previous post-argument Orders
(Docket Nos. 691, 719, 739 and 797). In addition, the defendants argue generally that they
should be provided with all witness statements, various unredacted materials, immediate
disclosure of the identities of informants and expanded pretrial discovery in light of Missouri v.
Frye, — U.S. — , 132 S. Ct. 1399 (2012) and Lafler v. Cooper, — U.S. — , 132 S. Ct. 1376
(2012). In Frye and Lafler, the Supreme Court held that defense counsel can he held to be
ineffective in the context of advice provided with respect to plea discussions. In Frye, the
prosecutor provided defense counsel with two plea offers – one allowing the defendant to pled
guilty to a misdemeanor, however, counsel did not convey these offers to the defendant. The
defendant was ultimately convicted of a felony. The Court held that the right to effective
assistance of counsel extends to the consideration of plea offers and remanded the question of
whether counsel’s deficient performance prejudiced the defendant back to the state court. Frye,
132 S.Ct. at 1411. In Lafler, the defendant was charged with assault with intent to murder and
other crimes arising from an incident in which the defendant shot the victim in her buttock, hip
and abdomen. The prosecution offered a plea deal with a recommended sentence of 51 to 85
months. The defendant communicated with the Court, admitting guilt and expressing a
willingness to accept the offer. Subsequently, the defendant rejected the offer after his attorney
convinced him that the prosecution would be unable to establish his intent to murder the victim
because the victim had been shot below the waist. On appeal, the parties agreed that the advice
provided was deficient. The defendant was convicted at trial and sentenced to 185 to 360 months
imprisonment. Lafler, 132 S. Ct. at 1383.
Neither Frye, nor Lafler, addressed the scope of pretrial discovery in a criminal case.
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These decisions do not abrogate the Jencks Act relating to the disclosure of the statements of
witnesses, or trump well-established case law allowing for the consideration of various factors,
including the safety of witnesses, when determining the need for the disclosure of informants,
redacted material or grand jury transcripts. Fairly read, Frye and Lafler stand for the proposition
that the Sixth Amendment right to effective assistance applies to advice relating to plea
negotiations, and that to do that an attorney must: (a) convey plea offers to the defendant; and (b)
provide reasonable advice in light of the information that is available to the defense at that time
under the applicable law.
To the extent that the defendants seek expanded discovery of witness statements,
unredacted materials, a bill of particulars, disclosure of informants or grand jury transcripts based
upon Frye and Lafler, the motions are denied.
Rule 12 Notice
Various defendants have included requests for notice under Rule 12 in their respective
motions. The government’s respective responses to such motions often included notice under
Rule 12. The defendants have not articulated that such notice was inadequate. In any event, if
not already provided, the government shall provide notice to the defendants pursuant to Rule 12.
Exclusion of Non-Testifying Co-Conspirators
Several of the defendants seek to compel disclosure of and preclusion of statements made
by co-conspirators. Rule 801 of the Federal Rules of Evidence has been cited in support of this
request. Rule 801(d)(2)(E) is a provision which defines whether certain statements are to be
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considered “hearsay.” This provision does not provide for the disclosure of such statements. In
any event, it does not appear that the statements of co-conspirators are discoverable under Rule
801(d)(2)(E). The Jencks Act provides the exclusive procedure for discovering statements that
government witnesses have given to law enforcement agencies. U.S. v. Covello, 410 F.2d 536,
543 (2d. Cir.) cert. denied 396 U.S. 879 (1969).
The defendants are not entitled to a pretrial hearing to determine the admissibility of co-
conspirator statements under U.S. v. James, 590 F.2d. 575 (5th Cir. 1979). James hearings are
not required in the Second Circuit. Instead, in this circuit the judge presiding over the trial of the
case makes a ruling pursuant to U.S. v. Geaney, 417 F.2d 1116 (2d Cir. 1969) during the trial
regarding the admissibility of the statements. See also U.S. v. Feola, 651 F.Supp 1068 (SDNY
1987), aff'd 875 F.2d 857 (2d Cir. 1989, cert. denied 493 U.S. 834 (1989); U.S. v. Margiotta, 688
F.2d 108 (2d Cir. 1982) cert. denied 461 U.S. 913 (1983); U.S. v. Mastropieri, 685 F.2d 776 (2d
Cir. 1982) cert. denied 459 U.S. 945 (1982); U.S. v. Persico, 621 F.Supp 842 (SDNY 1985) aff'd
774 F.2d 30 (2d Cir. 1985).
Similarly, challenges to the admissibility of a statement under Bruton v. United States,
391 U.S. 123 (1968) are more appropriately determined by the presiding District Judge at trial.
Identity of Informants
The defendants seek the pretrial disclosure of the identity of any informants in this case.
Generally, the government is not required to furnish the identities of informants unless it
is essential to the defense. Roviaro v. United States, 353 U.S. 52, 60-61 (1957); United States v.
Saa, 859 F.2d 1067, 1073 (2d Cir.) cert. denied 489 U.S. 1089 (1988). Rule 16 does not require
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the government to disclose the names of witnesses prior to trial. United States v. Bejasa, 904
F.2d 137, 139 (2d. Cir.) cert. denied 498 U.S. 921 (1990).
The Court has the discretion to compel pretrial disclosure of the Government's witnesses,
at least where the defendant makes “a specific showing that disclosure [is] both material to the
preparation of his defense and reasonable in light of the circumstances surrounding his case.”
United States v. Cannone, 528 F.2d 296, 300-301(2d. Cir. 1975). (“[D]istrict courts have
authority to compel pretrial disclosure of the identity of government witnesses.”). Thus, the
burden is on the defendant to make “some particularized showing of need,” United States v.
Kelly, 91 F.Supp.2d 580, 586 (S.D.N.Y.2000) (internal quotation marks and citation omitted),
which “should be balanced against the possible dangers accompanying disclosure (i.e.
subornation of perjury, witness intimidation, and injury to witnesses),” United States v. Cafaro,
480 F.Supp. 511, 520 (S.D.N.Y.1979) (quoting Cannone, 528 F.2d at 302).
In conducting this analysis, district courts in this Circuit have frequently looked to the
factors set forth in United States v. Turkish,458 F.Supp. 874, 881 (S.D.N.Y.1978):
(1) Did the offense alleged in the indictment involve a crime of
violence?
(2) Have the defendants been arrested or convicted for crimes
involving violence?
(3) Will the evidence in the case largely consist of testimony
relating to documents (which by their nature are not easily altered)?
(4) Is there a realistic possibility that supplying the witnesses'
names prior to trial will increase the likelihood that the
prosecution's witnesses will not appear at trial, or will be unwilling
to testify at trial?
(5) Does the indictment allege offenses occurring over an extended
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period of time, making preparation of the defendants' defense
complex and difficult?
(6) Do the defendants have limited funds with which to investigate
and prepare their defense?
See United States v. Washington, 947 F.Supp. 87, 88 (S.D.N.Y.1996); United States v. Upton,
856 F.Supp. 727, 750-51 (E.D.N.Y.1994); United States v. Feldman, 731 F.Supp. 1189, 1199
(S.D.N.Y.1990).
The charges in the Fourth Superceding Indictment include four murders, 12 attempted
murders, and numerous assaults. In addition, the Fourth Superceding Indictment includes two
counts of witness tampering. The factors set forth in Turkish weigh heavily against the pretrial
disclosure of witnesses or informants in this case. Here, the defendants are charged with murder
and other violent crimes; much of the evidence against them appears to be in the form of
testimony (as opposed to documents); and there is a realistic possibility that supplying the names
of witnesses prior to trial will increase the likelihood that the prosecution’s witnesses will not
appear, or will be unwilling to testify, at trial. The defendants have not established a
particularized need for pretrial disclosure of the identities of any informants or the government’s
witnesses. The government shall disclose the names of witnesses and informants as directed by
the District Court in its trial Order.
Bill of Particulars
The defendants, respectively, seek a Bill of Particulars from the government typically
requesting information such as a list of all unindicted co-conspirators, the specific dates, times
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and locations of the conspiracy, a list of all uncharged overt acts (i.e. Docket No. 500 at ¶ 20), the
manner in which the racketeering activity was committed, whether any individual present during
the overt acts was acting for the government (i.e. Docket No. 503 at ¶ 6), as well as numerous
request relating to the various individual overt acts and substantive Counts in the Fourth
Superceding Indictment (i.e. Docket No. 561 at pages 5-38).8
The government argues that a Bill of Particulars is not required in this case. The
government points to the fact that, in addition to the Fourth Superceding Indictment, the
defendants have the details provided in the 282-page criminal complaint setting forth
information pertaining to the drug trafficking and Title III intercepts in this case. Further the
government has produced thousands of documents as part of the voluntary discovery in this case,
including all the wire tap applications and affidavits providing further details of the investigation.
The defendants have also been provided with audio and text files of the various intercepted
conversations involving the defendants, which include conversations which serve as evidence of
the RICO enterprise and conspiracy. (Docket No. 598 at page 3-4). The government asserts that
all this information, along with the lengthy Fourth Superseding Indictment, which includes pages
of “General Allegations,” which detail the background of the 10 Street Gang enterprise,th
provides that defendants with the purposes of the 10 Street Gang enterprise, the roles of the
defendants, and the means and methods of the enterprise.
Most of the defendants seek the exact places, dates and times of the alleged conspiracy.
At oral argument, defendant Augus requested that the Court go through each and every8
Brady request made by each of the respective defendants and make a preemptive ruling as to
whether the request fell within the scope of Brady. (Docket No. 687 at page 24). The Court
declines to rule preemptively on each Brady request. The Court will address only the specific
disputed issues presented by the parties.
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Several courts have held that the specific locations where acts in furtherance of the conspiracy
occurred or formed are evidentiary matters not subject to particularization. See e.g., United States
v. Feola, 651 F. Supp.1068, 1133 (S.D.N.Y. 1987).; United States v. Payden, 613 F. Supp. at
817; United States v. Bidloff, 82 F. Supp. 2d, 78, 83 (W.D.N.Y. 1999) (government need not
particularize "elsewhere" referred to in conspiracy indictment). It is settled that the government
should not be required to furnish particulars relating to the formation of a conspiracy, including
when and how it was formed and when a particular defendant joined, because such details need
not be proven at trial. United States v. Bin Laden, 92 F. Supp. 2d 225, 242-243 (S.D.N.Y. 2000);
United States v. Ianelli, 53 F.R.D. 482, 483 (S.D.N.Y. 1981); United States v. Crisona, 271 F.
Supp. 150 (S.D.N.Y. 1967); United States v. Malinsky, 19 F.R.D. 426, 428 (S.D.N.Y.
1956)(denying requests for particulars as to the details of the creation of the conspiracy and the
defendant's joinder therein). “Such requests — for when, where, how, and with whom each
individual joined a conspiracy — have “almost uniformly been denied.” United States v. Wilson,
565 F. Supp. 1416, 1438 (S.D.N.Y. 1983)(quoting United States v. Kahaner, 203 F. Supp. 78, 84
(S.D.N.Y. 1962)); see also United States v. Muyet, 945 F. Supp. 586, 599
(S.D.N.Y. 1996) (stating “defendants are not entitled to a bill of particulars setting forth the
‘whens’, ‘wheres’, and ‘with whoms’ of [a] conspiracy”).
To the extent that the defendants seek disclosure of the government’s legal theories, this
too, is not the proper subject of particularization. United States v. Parker, 165 F. Supp.2d 431,
467 (W.D.N.Y. 2001).
The defendants seek the names of all unindicted co-conspirators. The defendants have not
established that such disclosure is necessary prior to the disclosure of such information along
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with other Jencks material. See United States v. Gotti, 784 F. Supp. 1017, 1018 (E.D.N.Y. 1992)
(appellate case law is clear that refusal of a district court to direct the filing of a bill of particulars
as to the names of unindicted coconspirators is not an abuse of discretion) (collecting cases); see
also United States v. Torres, 901 F.2d 205, 233-34 (2d Cir.), cert. denied, 498 U.S. 906 (1990)
(request for bill of particulars seeking, among other things, names of coconspirators “known and
unknown,” denied).
Several defendants seek particularization relating to a specific overt act. The government
argues that the Courts have held that such particularization relating to overt acts is unwarranted,
particularly in light of the fact that the government need not prove the overt act. See Salinas v.
United States, 522 U.S. 52, 61-66 (1997); United States v. Kaminski, 1998 WL 275594, at *5
(N.D.N.Y. 1998) (holding “government is not required to provide detailed information about the
conspiracy, such as overt acts, how and when the conspiracy was formed, or when each
participant entered it”); Payden, 613 F. Supp. at 817-18 (S.D.N.Y. 1985). This is particularly so,
where as here, the United States is not required to prove any overt act in furtherance of the
charges. See e.g., United States v. Feola, 651 F. Supp. 1068, 1133 (S.D.N.Y. 1987) (citing cases).
The defendants rely upon United States v. Davidoff, 845 F.2d 1151, 1153 (2d Cir. 1988).
However, in that case, the government was permitted to offer evidence of extortions at trial
which were not alleged in the indictment or referenced during discovery. The Second Circuit
held that the District Court exceeded its discretion by denying a bill of particulars where the
discovery provided by the government did not cure the lack of notice in the indictment because
two of the three non-alleged extortions were not even referenced in the wiretap tapes provided by
the government during discovery. Moreover, in Davidoff, the Second Circuit cautioned:
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We do not mean to imply that even in a RICO case the prosecution
must always disclose, in advance of trial, every act it will prove
that may violate some criminal statute. But here it simply
unrealistic to think that a defendant preparing to meet charges of
extorting funds from one company had a fair opportunity to defend
against allegations of extortions against unrelated companies,
allegations not made prior to trial. Id. at 1154.
The Fourth Superceding Indictment does not lack such information in the instant matter. The
Court is also not persuaded by the argument that a bill of particulars is required because too
much discovery has been provided. As noted above, the discovery in this case has been provided
in searchable electronic format (Docket No. 687 at page 81). In addition, the government has
provided each defendant with a summary chart of the discover provided including the bates
numbers and a description of the discovery. For example, “000155 -000170- ** REDACTED**
BPD Crime Scene Unit & BPD report re: 08/12/2009 Assault/Shooting at 211 Bird.” and
“000171-000182: color photos as they relate to 08/12/2009 incident.” (Docket No. 612-1 at page
1). This information provides the respective defendants with a roadmap to the discovery which
relates to the various incidents in which they are alleged to have participated. This discovery also
often provides the respective defendants with the particulars relating to the alleged incidents.
Upon review of the Fourth Superceding Indictment, and the representations of the parties
regarding the scope and volume of discovery already provided by the government, the Court
finds that a bill of particulars is appropriate only as to certain defendants named in Count 63 of
the Fourth Superceding Indictment. As noted above, in Count 63 the indictment charges all of the
remaining defendants, except Colon, Anastasio, Fluellen and McIntosh, with possession of a
firearm in furtherance of a drug crime (that being the narcotics conspiracy alleged in Count 62).
Count 63 states that the individuals possessed such firearms “[b]eginning in or before 2000, and
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continuing to in or about 2011" (Docket No. 408 at page 119). Count 63 does not otherwise
describe the weapon or weapons that any particular defendant is alleged to have possessed; or the
time and location of such possession. This issue was addressed in United States v. Mason,
2007 WL 541653 (S.D.N.Y. 2007):
In addition, [defendant] requests similar information for Count
Two, including the specific dates, times, and locations where he
possessed a firearm, how it was in furtherance of drug trafficking,
and whether his possession was constructive or actual. ... The
purpose of a bill of particulars is to provide sufficient information
about an offense to permit the defendant to prepare for trial, to
avoid unfair surprise, and to preclude a second prosecution for the
same offense. ... However, “a bill of particulars is not a general
tool of discovery, nor is it a device to give the defense a road map
to the government's case.” ... Thus, it is only required “where the
charges of the indictment are so general that they do not advise the
defendant of the specific acts for which he is accused.”... Further,
“[a]cquisition of evidentiary detail is not the function of the bill of
particulars.” ... An Indictment need not identify all alleged co-
conspirators, nor specify the nature, time, and place of every overt
act the defendant or others allegedly took in furtherance of a
conspiracy, nor set forth all the evidence the Government seeks to
introduce. ... The superceding Indictment reveals that this case is
a generic narcotics conspiracy, wherein firearms were used to
further narcotics trafficking. It details specific overt acts
defendants allegedly undertook in furtherance of the conspiracy.
In addition, the Government has represented to this Court that the
extensive discovery produced to date includes items seized from
various locations, including marijuana, firearms, ammunition, and
large amounts of cash. ... It is appropriate in ruling on a motion for
a bill of particulars to consider whether the information sought has
been provided in another way. ... Moreover, defendants seek “the
very sorts of information with respect to which courts routinely
deny requests for particularization.” ... Defendants' motions are
denied, as no further specificity is required here.
Mason, 2007 WL 541653 at *4-5.
In the instant case, the Fourth Superceding Indictment sets forth a RICO and narcotics
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conspiracy providing dates and details of numerous violent crimes and other instances in which
the defendants are alleged to have possessed and used a firearm. With respect to the use of
firearms in support of the RICO and drug conspiracies, the overt acts allege: that David Deynes
“fired several shots” at victim “A.P.” on February 18, 2002 (Docket No. 408 at page 14);
Peebles and Smith possessed a .38 caliber revolver on May 17, 2005 (Docket No. 408 at page
15); Smith possessed cocaine, marijuana, heroin and a 9 millimeter magazine on September 2,
2005 (Docket No. 408 at page 15); Thurmond, Delgado, Lopez and Anastasio obtained firearms
on April 16, 2006 (Docket No. 408 at page 16); Pabon provided a handgun to Delgado on April
16, 2006 (Docket No. 408 at page 16); Anastasio provided a firearm to another 10 Street Gangth
member on April 16, 2006 (Docket No. 408 at page 16); Delgado and Thurmond existed
Lopez’s Ford Explorer with loaded firearms on April 16, 2006 (Docket No. 408 at page 16);
Delgado and Thurmond fired shots at individuals on April 17, 2006 (Docket No. 408 at page
17); Delgado was armed with a handgun on May 22, 2006 (Docket No. 408 at page 20); Peebles
shot at rival M&T Gang member on June 15, 2007 (Docket No. 408 at page 22); Hernandez shot
victim “J.B.” on March 23, 2008 (Docket No. 408 at page 24); Hernandez possessed a loaded
.38 caliber revolver in Amherst, New York on March 23, 2008 (Docket No. 408 at page 24);
Busch and Augus shot rival gang member “K.R.” on July 14, 2008 (Docket No. 408 at page 25);
Micahel Bobbitt possessed a Sturm Ruger 9mm semi-automatic pistol and a Kel-Tec 9mm semi-
automatice pistol on August 20, 2008 (Docket No. 408 at age 25); Augus fired several shots at a
residence located at 102 Pennsylvania Street on August 11, 2009 (Docket No. 408 at page 30);
Peebles shot rival gang member “M.S.” on August 12, 2009 (Docket No. 408 at page 31); Busch
shot at rival gang member “R.L.” on August 13, 2009 (Docket No. 408 at page 31); Peebles shot
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rival gang member “E.L.” on August 13, 2009 (Docket No. 408 at page 31); Peebles and Busch
shot victims “A.C” and “M.C.” on August 14, 2009 (Docket No. 408 at page 32); Peebles,
Busch and Santana shot at rival gang members on August 17, 2009 (Docket No. 408 at page 32);
Peebles, Ford and Santana shot at rival gang members on August 17, 2009 (Docket No. 408 at
page 32); Busch fired several shots at occupants inside a SUV on September 8, 2009 (Docket No.
408 at page 33); Busch possessed cocaine, and a loaded Strurm Ruger .45 caliber pistol on
September 8, 2009 (Docket No. 408 at page 33); Moscoso fired a round through the window of
“J.R.”’s residence on October 15, 2009 (Docket No. 408 at page 34); Peebles, Pabon and Colon
shot rival gang member “C.M.” on October 17, 2009 (Docket No. 408 at page 34); Ali fired
several shots into a residence on October 21, 2009 (Docket No. 408 at page 35); Peebles and
Augus shot rival gang member “L.M.” on November 8, 2009 (Docket No. 408 at page 35);
Colon shot victim “J.H.” on January 24, 2010 (Docket No. 408 at page 38); Ford possessed a
firearm, scale and crack cocaine on June 11, 2010. (Docket No. 408 at page 39). In addition,
Peebles, Ford and Hernandez are charged with attempted murder and weapons crimes involving
victims “B.C.” and “B.W.” on June 15, 2007 [Counts 5-7]. Yancey is charged with a weapons
crime related to the Fraticello-Lugo murder on September 15, 2008. [Count 12]. Moscoso is
charged with the murder of Christian Portes and a related weapons crime on June 13, 2009
[Counts 15-16]. Moscoso is also charged with assault with a dangerous weapon and a related
weapons charge involving victim “E.L.” on July 2, 2009 [Counts 19-20]. Peebles is also charged
with assault with a dangerous weapon and related weapons crimes involving victim “E.L.” on
August 13, 2009 [Counts 28-29]. Peebles and Busch are also charged with the attempted
murder, attempted assault and related weapons crimes involving victim “E.H.” on August 17,
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2009 [Counts 33-35]. Augus is charged with the attempted murders and attempted assaults of
victims “C.M.” and “W.J.”, along with related weapons charges on September 5, 2009. [Counts
36-40]. Busch is charged with the attempted murder, attempted assault and related drug and
weapons crimes involving victim “V.M.” on September 8, 2009 [Counts 41-46].
As in Mason, the government asserts that the alleged violence outlined above was
undertaken in furtherance of the drug trafficking activities of a drug conspiracy. For the most
part, the Fourth Superceding Indictment provides significant particularization as to the dates and
circumstances relating to these instances of the use of firearms by various purported members of
the 10 Street Gang in furtherance of the alleged drug trafficking conspiracy. The Fourthth
Superceding Indictment does not include specific allegations asserting the possession of a firearm
with respect to defendants Matthew Deynes, Watkins or Medina. With respect to those
defendants, to the extent the government intends to rely upon incidents which are not referred to
in the Fourth Superceding Indictment, the government is directed to provide particulars,
including the date, the circumstances regarding the possession, and a description of the firearm
alleged to have been possessed. Except as provided above, the respective motions for bills of
particulars are denied.
Brady and Jencks Act Material
The defendants seek the disclosure of all potentially exculpatory materials, including
information to be used for the impeachment of the government’s witnesses, as required under
Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. Brady material, as those cases have
come to define it, includes all evidence which may be favorable to the defendant and material to
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the issue of guilt or punishment. Such evidence includes "[a]ny and all records and/or
information which might be helpful or useful to the defense in impeaching ... [and] [a]ny and all
records and information revealing prior misconduct ... attributed to the [government's] witness."
U.S. v. Kiszewski, 877 F.2d 210 (2d Cir. 1989). The defendants also seeks disclosure of the
statements of witnesses under the Jencks Act (15 U.S.C. §3500).
The government has acknowledged its obligations under Brady and Giglio v. United
States, 405 U.S. 150 (1972), as well as the Jencks Act. The government represents that it has
already produced much of this material and will provide all remaining Brady and Jencks material
as directed in the District Court’s trial order.
Neither the Supreme Court, nor the Second Circuit , have ruled directly on whether9
there is a meaningful distinction between "exculpatory Brady" and "impeachment Brady"
materials for purposes relating to the time within which such information must be disclosed.
Several other courts have discussed the issue at hand, which often arises in the context of a
potential, if not inherent conflict between the government's obligations to disclose under Brady,
and the governments right to delay disclosure of certain information pursuant to the Jencks Act.
Those cases suggest that the court has some discretion with respect to directing the timing of
such disclosure. U.S. v. Campagnuolo, 592 F.2d 852 (5th Cir. 1979)(the Court interpreted
Brady to require disclosure "at the appropriate" time, which often is prior to trial); U.S. v. Perez,
870 F.2d 1222 (7th Cir. 1989)(the government's delay in disclosing Brady material violates due
process only if the delay prevented the defendant from receiving a fair trial); U.S. v. Ziperstein,
In a footnote in its opinion in Lucas v. Regan, 503 F.2d 1, 3 n.1 (1974), the9
Second Circuit stated that "[n]either Brady nor any other case we know of requires that
disclosures under Brady be made before trial."
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601 F.2d 281 (7th Cir. 1979)(a defendant receives a fair trial, notwithstanding delayed disclosure
of Brady material, as long as disclosure is made before it is too late for the defendant to make use
of any benefits of the evidence). But see U.S. V. Wilson, 565 F.Supp 1416 (S.D.N.Y. 1983)
(impeachment material need not be produced prior to trial); U.S. Biaggi, 675 F.Supp 790
(S.D.N.Y. 1987)(information bearing on a witness' credibility may be turned over at the same
time as [Jencks Act] materials); U.S. V. Feldman, 731 F.Supp 1189 (S.D.N.Y. 1990)(it is
sufficient for the government to disclose Brady impeachment materials along with [Jencks Act]
materials).
The Jencks Act relates only to "statements" made by government witnesses. Such
statements may include inconsistencies which make them useful for impeachment purposes, and
thus, subject them to disclosure under Brady principles. To this extent, it has been suggested that
the constitutional requirements underlying Brady could act to modify the Jencks Act. U.S. v.
Campagnuolo, 592 F.2d 852, 860 (5th Cir. 1979). But see U.S. v. Presser, 844 F.2d 1275 (6th
Cir. 1988)(the government may not be compelled to pretrial disclosure of Brady or Jencks
material). The record in this case does not reflect whether any of the materials withheld by the
government may be considered both Brady and Jencks material. Certainly "impeachment Brady"
material may include several items which are not considered "statements" under the Jencks Act.
This Court believes that fundamental fairness and the constitutional due process
requirements which underlie Brady mandate that the court have some discretion with respect to
the timing of the disclosure of such information, even if it may be considered combined
Brady/Jencks material. Indeed, even with respect to purely Jencks Act materials, the Second
Circuit has stated that "pre-trial disclosure will redound to the benefit of all parties, counsel and
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the court, ... sound trial management would seem to dictate that Jencks Act material should be
submitted prior to trial ... so that those abhorrent lengthy pauses at trial to examine documents
can be avoided." U.S. v. Percevault, 490 F.2d 126 (2d Cir. 1974); U.S. V. Green, 144 F.R.D.
631 (W.D.N.Y. 1992).
In the instant case, and while balancing all of the above, the Court concludes that
disclosure of such inculpatory and impeachment material, if any exists, in accordance with the
common practice in this district (prior to trial so long as it is disclosed in sufficient time for the
defendants to have a fair opportunity to utilize the information at trial) is sufficient.
Rule 404, 608 and 609 Material
The defendants also seek information under Rules 404, 608 and 609 of the Federal Rules
of Evidence. Federal Rule of Evidence 404(b) governs requests for disclosure of all evidence of
prior bad acts that the government intends to use in its case-in-chief. Rule 404 requires that the
defendants be given "reasonable notice in advance of trial, or during trial if the court excuses
pretrial notice on good cause shown, of the general nature of any such evidence it intends to use
at trial." To the extent that the government intends to use any such evidence of a prior bad act
in its case in chief, the government shall produce all Rule 404(b) evidence as directed by the
District Court in the trial order.
With respect to the defendants’ requests under Rules 608 and 609, the only notice
requirement imposed by either Rule applies where a party intends to introduce evidence of a
conviction that is more than ten years old. Under such circumstances, Rule 609(b) mandates that
"the proponent [give] to the adverse party sufficient advance written notice of intent to use such
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evidence to provide the adverse party with a fair opportunity to contest the use of such evidence."
To the extent the government intends to use a conviction more than 10 years old, it must comply
with this requirement. The government has no obligation to provide the defendant with notice of
any material that will be used to impeach him pursuant to Rule 608 should he elect to testify.
See United States v. Livoti, 8 F.Supp.2d 246 (S.D.N.Y. 1998); United States v. Song, 1995 WL
736872, at *7 (S.D.N.Y. Dec.13, 1995).
Preservation of Rough Notes and Evidence
The defendants seek the preservation of notes taken by law enforcement personnel
involved in this matter and other evidence. The government is directed to preserve this material.
Grand Jury Transcripts
The defendants seek disclosure of the grand jury transcripts in this matter. There is a
presumption that grand jury proceedings are lawful and regular, (United States v. Torres, 901
F.2d 205, 232 (2d Cir.) (quoting Hamling v. United States, 418 U.S. 87, 139 n. 23, 94 S.Ct.
2887, 2918 n. 23, 41 L.Ed.2d 590 (1974), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112
L.Ed.2d 229 (1990)), and disclosure of grand jury proceedings is available only by order of the
Court. (See Fed.R.Crim.P. 6(e)). A party seeking disclosure of grand jury proceedings bears
the burden of establishing a "particularized need" or "compelling necessity" for such disclosure
which outweighs the policy of grand jury secrecy. Douglas Oil Co. v. Petrol Stops Northwest,
441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); Pittsburgh Plate Glass Co. v. United
States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959); In re Rosahn, 671 F.2d
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690, 695 (2d Cir.1982). Unspecified allegations of impropriety or mere speculation are not
sufficient to satisfy this heavy burden. United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct.
613, 618-19, 38 L.Ed.2d 561 (1974). Therefore, "review of grand jury minutes is rarely
permitted without specific factual allegations of governmental misconduct." Torres, 901 F.2d at
233.
The defendants have not presented any particularized need or advanced any proof
controverting the presumption of regularity in the grand jury proceedings in this case. This
request is denied.
Audibility Hearing
Several defendants seek an audibility hearing regarding tape recordings the government
intends to use at trial. The defendants do not allege that any particular tape is inaudible. It
appears that this issue is moot.
Requests under Rules 806 and 807
The defendants also request information pursuant to Rules 806 and 807 of the Federal
Rules of Evidence, relating to possible hearsay evidence the government intends to use at trial. If
the government should determine that it will attempt to introduce such hearsay statements, the
government is directed to notify the defendant of such in accordance with the trial order issued
by the District Court.
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Expert Disclosure, Summaries, Voir Dire Experts
The defendants have requested disclosure relating to any experts the government intends
to use at trial. To the extent not already provided, the government shall make disclosure of the
government’s experts as directed in the District Court’s trial order. The defendants have also
requested production of government summaries, leave to cross-examine any expert government
witnesses outside the presence of the jury, and to have an active role in the voir dire process.
These issues are more appropriately determined by the District Court Judge presiding over the
trial in this matter.
Severance and Trial Scheduling Motions
Many defendants have filed motions seeking severance from the other defendants in this
case, or severance of certain counts in the Fourth Superceding Indictment. (Docket Nos. 500,
509, 512, 513, 519, 545, 546, 548, 553, 556, 557, 614). Various defendants have also filed
motions to exclude them from being among the first group to proceed to trial in this matter
(Docket No. 918, 925, 926, 927, 937). Similarly, the government has filed a motion to sever the
defendants into various groups for trial. (Docket No. 932). Such motions are more appropriately
determined by the District Judge presiding over the trials in this matter. Thus, the Court defers
these motions to the District Judge.
So Ordered.
/ s / Hugh B. Scott
United States Magistrate Judge
Western District of New York
Buffalo, New York
July 15, 2013
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