U.S. v. Allen
| Decision Date | 20 October 2003 |
| Docket Number | No. 5:01-CR-554 (HGM).,5:01-CR-554 (HGM). |
| Citation | 289 F.Supp.2d 230 |
| Parties | UNITED STATES of America, Plaintiff, v. Mark ALLEN and Karen Allen, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Glenn T. Suddaby, United States Attorney for the Northern District of New York (Lisa M. Fletcher, Esq., Assistant United States Attorney, of Counsel), Syracuse, NY, for Plaintiff.
James C. Hopkins III, Esq., Syracuse, NY, for Defendant Mark Allen.
James H. Medcraf, Esq., Syracuse, NY, for Defendant Karen Allen.
Currently before the court are defendants' criminal omnibus motions for relief.1 On December 19, 2001, a grand jury returned a two-count Indictment against defendants Mark Allen and Karen Allen. Count One of the Indictment charges defendants with conspiring to manufacture, distribute and possess with intent to distribute marijuana from 1992, up to and including September 11, 2001, in the Northern District of New York. Count One also provides notice that the total number of marijuana plants involved in the conspiracy exceeded 1,000 units, thereby implicating the enhanced penalty provisions of 21 U.S.C. § 841(b)(1)(A). Count Two charges defendants with knowingly and intentionally manufacturing more than 100 marijuana plants in or about September 2001. Lastly, the Indictment contains a forfeiture allegation seeking, inter alia, defendants' forfeiture of three real estate properties and numerous items used in their marijuana manufacturing process. See Dkt. No. 1, Indictment.
Defendant Mark Allen moves: (1) for an order pursuant to Rule 16(a)(1)(A)-(E) of the Federal Rules of Criminal Procedure granting inspection and discovery of defendant's statements, prior record, material documents and tangible objects, reports of examinations and tests, and expert witness testimony under Rules 702, 703, and 705 of the Federal Rules of Evidence; (2) for an order pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure granting a Bill of Particulars with respect to Count One of the Indictment; (3) for an order pursuant to United States v. Konefal, 566 F.Supp. 698 (N.D.N.Y. 1983) and Rule 16(a)(1)(A) for discovery of co-conspirator statements; (4) for an order pursuant to Rule 12 of the Federal Rules of Criminal Procedure and Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) to compel the government to reveal the identity of any informants; (5) for an order pursuant to Rule 104 of the Federal Rules of Evidence and United States v. James, 590 F.2d 575 (5th Cir.1979) for a pre-trial hearing regarding the admissibility of co-conspirator statements; (6) for an order pursuant to Rules 403 and 404(b) of the Federal Rules of Evidence directing the government to provide reasonable notice (seven days), in advance of trial, of its intent to offer defendant's character evidence; (7) for an order pursuant to Rule 609 of the Federal Rules of Evidence directing the government to provide reasonable notice (seven days), in advance of trial of its intent to offer evidence of defendant's prior criminal convictions as well as those of any potential witnesses; (8) for an order pursuant to United States v. Cannone, 528 F.2d 296 (2d Cir.1975) directing the government to provide a witness list reasonably in advance (seven days) of trial and a daily witness list; (9) for an order pursuant to Rule 12(d)(2) of the Federal Rules of Criminal Procedure directing the government to provide notice of its intent to use (in its evidence in chief at trial) any evidence, which defendant may be entitled to discover under Rule 16; (10) for an order pursuant to 18 U.S.C. § 3504 directing the government to disclose the existence of any electronic surveillance; (11) for an order pursuant to United States v. Feola, 651 F.Supp. 1068 (S.D.N.Y.1987) for preservation of notes of law enforcement officials; (12) for an order pursuant to 18 U.S.C. § 3500 (Jencks Act) for early disclosure of Jencks material; (13) for an order pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) for disclosure of all exculpatory material; (14) for an order pursuant to Rule 24(b) of the Federal Rules of Criminal Procedure to grant additional peremptory challenges and permit defendant to exercise them separately from his co-defendant; (15) for an order pursuant to Rule 16 of the Federal Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) directing the government to disclose information relative to the identification procedures it employed; (16) for an order allowing defendant to join in the motion(s) of any other attorney or co-defendant submitting motion(s); (17) for an order authorizing the suppression of all evidence seized at the three search sites and a dismissal of all charges leveled against defendant; and, (18) an order pursuant to Rule 12(f) of the Federal Rules of Criminal Procedure allowing defendant to bring such further motions as he deems appropriate pending review of the discovery material provided by the government in response to defendant's omnibus motion. See Dkt. No. 29, Notice of Mot.
Defendant Karen Allen moves: (1) for an order directing a Bill of Particulars; (2) for an order pursuant to Rules 702, 703 and 705 of the Federal Rules of Evidence directing the government to disclose any expert witness testimony; (3) for an order pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) requiring the disclosure of exculpatory evidence; (4) for an order pursuant to United States v. Konefal, 566 F.Supp. 698 (N.D.N.Y.1983) requiring the disclosure of co-conspirator statements; (5) for an order directing disclosure of confidential informants' background information; (6) for an order requiring early disclosure of Jencks material; (7) for an order pursuant to United States v. Cannone, 528 F.2d 296 (2d Cir.1975) directing the government to provide a witness list reasonably in advance of trial; (8) for an order pursuant to Rule 24(b) of the Federal Rules of Criminal Procedure directing additional peremptory challenges and permitting defendant to exercise them separately from her co-defendant; (9) for an order requiring disclosure of identification evidence; (10) for an order granting permission to join in co-defendant's motion(s); (11) for an order suppressing the admission into evidence of all items seized at the three search sites; (12) an order dismissing all charges against defendant; and, (13) an order granting such other and further relief as the court may deem proper. See Dkt. No. 27, Notice of Mot.
On July 9, 2001, an investigator at the Niagara Mohawk Power Corporation ("Niagara Mohawk") received information from a confidential informant ("CI") regarding the theft of electricity at 769 Center Street, Cleveland, New York ("769 Center Street"). See Dkt. No. 33, Government's Reply Mem. at 3. The Niagara Mohawk account at this address is in the name of defendant Karen Allen. During the investigation that followed the receipt of this information, Niagara Mohawk investigators learned from the New York State Police that Karen Allen is the wife of Mark Allen, and that they both lived at 7834 Kneeskern Road, Cicero (Bridgeport), New York ("7834 Kneeskern Road"). In addition, Niagara Mohawk investigators learned that Mark Allen held a Niagara Mohawk account at 323 Mellon Road, Williamstown, New York ("323 Mellon Road"). Niagara Mohawk investigators found evidence through the two houses' outside meters that the electrical output to the houses was much greater than the metered electrical output. See Dkt. No. 33, Government's Reply Mem. at 3-4.
After discovering the disparity between actual electrical output and metered electrical output, Niagara Mohawk investigators brought their findings to the attention of the New York State Police so that a search warrant could be issued for the properties located at 769 Center Street and 323 Mellon Road in order to determine to where the electrical power was being diverted. Investigator Douglas P. Davis, of the New York State Police, applied for two search warrants, and on September 11, 2001, at approximately 8:50 a.m., the Honorable Walter Hafner, Jr., of the Amboy Town Court, issued search warrants for 769 Center Street and 323 Mellon Road. The search warrants extended to "the premises located at [both properties], and any and all buildings, outbuildings, curtilage, sheds, storage areas and outdoor areas that it is determined that power has been diverted to, which are located on said property." See Dkt. No. 33, Government's Reply Mem. at 4. The search warrants continued by describing the property sought as "any apparatus, implements, and/or utensils utilized to obtain, divert or use power which has been illegally obtained." Id. at 4. Notably absent is any mention of marijuana.
New York State Police Investigators, with the assistance of Niagara Mohawk employees, executed the search warrants and determined that the lines indicating theft of power went into the buildings located on each of these two properties. After such determination, investigators entered the buildings in an attempt to find where within the buildings the theft of power was ultimately being utilized. Upon entering the buildings, investigators found extensive marijuana growing operations. Specifically, at 323 Melon Road, investigators found, inter alia, large quantities of marijuana, growth lights, fans, chemicals and other apparatus used in the indoor growing of marijuana, all of which were in plain view. Similarly, with respect to 769 Center Street, investigators observed, in plain view, large quantities of marijuana, growth lights, fans, chemicals and other apparatus used in the indoor growing of marijuana. See Dkt. No. 33, Government's Reply Mem. at 5-6.
After their discovery of the marijuana and related effects, investigators amended...
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