U.S. v. Vasconcellos, Cr. No. 1:07-CR-226.

• Decision Date: 29 September 2009
• Docket Number: Cr. No. 1:07-CR-226.
• Citation: 658 F.Supp.2d 366
• Parties: United States of America, v. Charles VASCONCELLOS; Sherwin Maxwell; McKinsey Williams; Lee Wallace; Christina Santana; and Tony Jordan, Defendants.
• Court: U.S. District Court — Northern District of New York

658 F.Supp.2d 366

United States of America, v. Charles VASCONCELLOS; Sherwin Maxwell; McKinsey Williams; Lee Wallace; Christina Santana; and Tony Jordan, Defendants.

Cr. No. 1:07-CR-226.

United States District Court, N.D. New York.

September 29, 2009.

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Andrew T. Baxter, United States Attorney, Daniel Hanlon, Esq., Assistant U.S. Attorney, of Counsel, Albany, NY, for United States.

Luibrand Law Firm, PLLC, Kevin A. Luibrand, Esq., of Counsel, Latham, NY, for Defendant Charles Vasconcellos.

Pelagalli, Weiner Law Firm, Frederick Rench, Esq., of Counsel, Clifton Park, NY, for Defendant Sherwin Maxwell.

Office of Mark J. Sacco, Mark J. Sacco, Esq., of Counsel, Schenectady, NY, for Defendant McKinsey Williams.

Office of David J. Rynkowski, David J. Rynkowski, Esq., of Counsel, Rensselaer, NY, for Defendant Lee Wallace. Office of Michael D. Jurena, Michael D. Jurena, Esq., of Counsel, Albany, NY, for Defendant Christina Santana.

Corrigan, McCoy Law Firm, Joseph M. McCoy, Esq., Rensselaer, NY, for Defendant Tony Jordan.

Memorandum-Decision and Order

GARY L. SHARPE, District Judge.

I. Introduction

The six captioned defendants and twenty-one others were indicted for participating in a cocaine trafficking conspiracy during a five-month period in 2007. (See Indictment, Count 1, Dkt. No. 1; see also 21 U.S.C. §§ 846, 841(b)(1)(A).) Nineteen pled guilty, and of the remaining eight, six filed pending pretrial motions. (See Vasconcellos Mot., Dkt. No. 339; Maxwell Mot., Dkt. Nos. 340, 395-96; Williams Mot., Dkt. No. 342; Santana Mot., Dkt. No. 343; Jordan Mot., Dkt. No. 277; Wallace Mot., Dkt. No. 356.) The government filed responses. (See Dkt. Nos. 360, 400.)

The indictment followed a joint local, state, and federal investigation. The government's primary evidence consists of conversations intercepted over state-authorized wiretaps on seventeen cellular telephones, and physical evidence seized during searches that followed the electronic surveillance.

Mounting a multi-faceted wiretap attack, all defendants seek to suppress intercepted conversations, and several seek to suppress physical evidence. Maxwell, Williams, Santana, and Wallace seek to join the motions of others. Jordan seeks to preclude the government's use of uncharged crimes, and Wallace and Santana seek permission to file additional motions. Wallace seeks dismissal of the indictment, further discovery, a bill of particulars, a severance, and an audibility and Franks hearing. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

For the reasons that follow, the motion to join other motions is granted in part, and all remaining motions are denied.

II. Miscellaneous Applications for Omnibus Relief

A. Background

After the defendants' arraignment, the court issued this district's standard Criminal Pretrial Scheduling Order (Order). (See, e.g., Dkt. No. 11.) In United States v. Elliott, 363 F.Supp.2d 439, 442-48 (N.D.N.Y.2005), familiarity with which is presumed, this court discussed the impact of that Order and the local and federal rules on discovery, other pretrial matters and motion practice. See also United States v. Miller, 382 F.Supp.2d 350, 355, 359-61 (N.D.N.Y.2005); United States v. DeLouya, No. 1:04-CR-588, 2005 WL 3244173, at *5-7 (N.D.N.Y. Nov. 30, 2005); United States v. Tudoran, 476 F.Supp.2d 205, 216 (N.D.N.Y.2007) ("The time is ripe to articulate the concept one last time...."). If nothing else, the defense bar should understand that these decisions mandate the following: those seeking pretrial relief must specifically identify the relief sought, must recite the factual and legal bases for the requests, and must recite the measures employed to obtain relief without judicial intervention.

After the Order issued, the court held a conference and discussed, inter alia, the scope of discovery, discovery deadlines and motion practice. (See, e.g., 6/15/07 Dkt. Entry.) Consistent with the Order and rules, the government began compliance with its discovery obligations beforehand, and submitted a letter cataloguing numerous materials it would disclose. (See Gov't Ltr., Dkt. No. 86; Gov't Disc. Disclosure Statement, Dkt. No. 91.) After the conference it continued to comply. (See Gov't Disclosure Statement, Dkt. No. 108.)¹

Eventually, the court held a final pre-motion conference, (see Dkt. No. 322), and the government stated, without objection, that it had fully satisfied its disclosure obligations. The court also discussed a possible joint wiretap motion. On behalf of Maxwell, Frederick Rench, Esq. said that he would submit a motion containing a multi-pronged wiretap attack, and he suggested that others might wish to join. While some of his brethren concurred, others did not, and most remained silent. The court stated that it favored a joint submission, but never intimated that defendants had unconstrained permission to join all other motions. Moreover, Elliott's mandate remained unaltered.

Regarding discovery, no defendant has filed the certification required by the Order and local rules. (See Order at ¶ II(G),² Dkt. No. 11; see also L.R.CRIM. P. 14.1(g).) The rationale for this rule is clear:

It is the Court's policy to rely on the discovery procedure as set forth in this Order as the sole means of the exchange of discovery in criminal actions ... [and t]his Order is intended to promote the efficient exchange of discovery without altering the rights and obligations of the parties, while at the same time eliminating the practice of routinely filing perfunctory ... discovery motions.

(Id. at ¶ II(A) (emphasis added); see also L.R.CRIM. P. at 14.1(a).) Lastly, the Order and Local Rule 14.1 control the timing and content of the government's disclosures.³ As confirmed by its disclosure statements and repeated written and verbal assurances, the government has fully complied with the rules.

Given this background, the court turns to what it characterizes as miscellaneous requests for relief.

B. Motions to Join

Maxwell, Williams, Santana, and Wallace seek to join the motions of others. Such a pro forma request makes little sense absent the particularization required by Elliott. Otherwise, the court must speculate about the basis for the request and the specific relief sought. Sometimes, joint motions might make sense such as a joint wiretap motion. No such motion was forthcoming.

Nonetheless, and with trepidation because of the escalated complexity caused this decision, the court permits the joining defendants to adopt the specific wiretap arguments of others, at least to the extent that they have standing to do so. Otherwise, the motions are denied.⁴

C. Indictment Dismissal

Wallace moves to dismiss the indictment. (See Wallace Mot. at ¶ 6, Dkt. No. 356.) In an accompanying twenty-two page affidavit and fifty-two page legal memorandum, he cites no facts or law. The court is not telepathic. The motion is denied.

D. Discovery

Wallace seeks discovery of virtually all things that occupied his stream of consciousness as he prepared his motion, and a companion order compelling the government to scour the world's archives in search of those things. Generically, those things include: (1) items specifically encompassed by Rules 12 and 16 of the Federal Rules of Criminal Procedure (e.g., defendant's statements and prior record; documents and objects; evidence to be used at trial); (2) so-called exculpatory or impeachment material; and (3) non-Rule 16 investigative and trial materials (e.g., a list of government witnesses; a list of anyone who may know something about the case; a list of informants and cooperating defendants; a list of all police officers involved in the investigation; disclosure of all federal, state and local police, military and prison records of all defendants, codefendants and coconspirators; and grand jury transcripts). (See, e.g., Wallace Mot., Rynkowski Aff. at ¶ 16(a)-(q), Dkt. No. 356.)

Wallace's motion is denied for the following alternative reasons: (1) he has failed to confer and certify as required by the Order and local rules; (2) the government has fully complied with its discovery obligations, and already disclosed most of what Wallace seeks; (3) the government has certified compliance with its current and continuing obligation to disclose exculpatory information, and Wallace has offered no facts suggesting the contrary; (4) despite the incredible breath and scope of his request, Wallace has cited no legal authority beyond a casual reference to Rule 16 and Brady; and (5) he is not legally entitled to the discovery he seeks absent a particularized showing of need.

Although unnecessary given the alternative reasons for denying the motion, the court offers a summary of controlling law. The principles are axiomatic and require no analysis because Wallace has neither recited nor discussed them. The government is not obligated to provide a witness list. See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); United States v. Alessi, 638 F.2d 466, 481 (2d Cir.1980). The court has discretion to order a witness list, but should do so only on a showing of particularized need and materiality, and subject to the government's right to seek a protective order. See United States v. Cannone, 528 F.2d 296, 300-01 (2d Cir. 1975). Absent a showing of materiality, the government is not required to identify persons it does not intend to call as witnesses, see United States v. Jordan, 399 F.2d 610, 615 (2d Cir.1968), which is especially true for grand jury witnesses whose identity is protected by rule, see FED. R.CRIM.P. 6(e). The government is not required to provide a detailed accounting of all police investigative work, nor disclose the identity of all police officers who worked in a case. See, e.g., Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).

Defe...