United States v. Kennard

• Decision Date: 15 November 2021
• Docket Number: 1:19-cr-00074-JAW-2
• Parties: UNITED STATES OF AMERICA v. NICHOLAS KENNARD
• Court: U.S. District Court — District of Maine

UNITED STATES OF AMERICA
v.
NICHOLAS KENNARD

No. 1:19-cr-00074-JAW-2

United States District Court, D. Maine

November 15, 2021

ORDER ON DEFENDANT’S MOTION FOR DISCOVERY

JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

Awaiting sentencing for his part in a drug trafficking conspiracy, a defendant seeks disclosure of his co-conspirators' presentence investigation reports, their criminal history categories, their designations as minor or minimal participants, their drug quantities, and a copy of a letter from the government detailing their cooperation. The Court denies each request. The Court concludes that this information is either publicly available or non-discoverable absent a special need, which the defendant fails to articulate.

I. FACTS

Beginning in May 2017, Rodney LaCroix founded and ran a drug trafficking organization (DTO) in Maine to distribute fentanyl. Presentence Investigation Report ¶ 5 (ECF No. 135) (Kennard PSR). Other participants in the DTO included the Defendant, Nicholas Kennard, as well as Chad Clement, Alicia Donnell, Sadie Davis, Patrick Hanson, Katrina Steiner, Jessica Santos, Brianna Maberry, Louis Malloy, Justin Checkowiz, Justin LaCroix, and Corey Schutz. Id. Of these participants, the Government indicted only Mr. Kennard, Mr. LaCroix, and Mr. Clement; all other participants remained unindicted federally. Id. The Probation Office (PO) concluded

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that Mr. Kennard was a customer of the DTO as well as a small, street-level distributor, and thus held a minor role in the conspiracy. Id. Regarding the two other participants, the PO assigned Mr. LaCroix an aggravating role, Mr. Clement a minimal role, and, even though none of the other participants was indicted federally, the PO described each of them as having an average role. Id. The PO recommended that the Court hold Mr. Kennard accountable for 439.7 grams of fentanyl. Id. ¶ 7.

II. PROCEDURAL HISTORY

On June 12, 2019, the Government charged Nicholas Kennard with two counts under a three-count superseding indictment.^[1] Superseding Indictment (ECF No. 33); Kennard PSR ¶ 2. Count One charged Mr. Kennard and Mr. LaCroix with engaging in a conspiracy to distribute and to possess with intent to distribute controlled substances from May 1, 2017, to October 14, 2018, Superseding Indictment at 1, and Count Three charged Mr. Kennard and Mr. LaCroix with attempted possession with intent to distribute controlled substances on July 8, 2019. Id. at 3; Kennard PSR ¶ 2. On April 29, 2021, Mr. Kennard pleaded guilty to both counts. Min Entry (ECF No. 124); Kennard PSR ¶ 3. On August 13, 2021, Mr. Kennard filed this motion for discovery in anticipation of sentencing. Def.’s Mot. for Disc. (ECF No. 142) (Def.’s Mot.). On August 30, 2021, the Government filed its response in opposition. Gov’t’s Opp’n to Def.’s Mot. for Disc. (ECF No. 143) (Gov’t’s Opp’n). On September 7, 2021,

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Mr. Kennard replied to the Government's response. Def.’s Reply to Gov’t’s Opp’n to Def.’s Mot. for Disc. (ECF No. 144) (Def.’s Reply).

III. PARTIES’ POSITIONS

A. Mr. Kennard’s Motion for Discovery

Mr. Kennard seeks six categories of information. First, the presentence investigation reports (PSR) for all co-conspirators named in Mr. Kennard’s own PSR. Def.’s Mot. at 1. Second, information as to how the Government treated co-conspirators not federally charged. Id. at 1-2. Third, information as to whether the co-conspirators named in Mr. Kennard’s PSR have been considered “minor” or “minimal” participants. Id. at 2. Fourth, information regarding the criminal history categories of all co-conspirators identified in Mr. Kennard’s PSR. Id. Fifth, information on the drug quantities for which all other co-conspirators are being held accountable. Id. Sixth, a copy of a letter filed by the Government addressing Mr. Clement’s “substantial” assistance. Id. at 2-3.

Mr. Kennard requests these items to ensure that “his sentence . . . [is] in conformity with the dispositions of [his co-conspirators]” under 18 U.S.C. § 3553(a)(6). Id at 6. Mr. Kennard quotes United States v. Reyes-Santiago, 804 F.3d 453 (1st Cir. 2015), stating that “[i]n fashioning an appropriate sentence, judges are directed by statute to consider the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” Id. (quoting Reyes-Santiago, 804 F.3d at 467). Mr. Kennard points to the First Circuit’s discussion in Reyes-Santiago of “the unusual circumstance of a sentence that is substantively unreasonable . . . because of its substantial disparity with the sentences

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given to co-defendants and the absence of any identified, supportable basis for the inconsistency.” Id. at 7 (quoting Reyes-Santiago, 804 F.3d at 473). To support his argument, Mr. Kennard points to language in Reyes-Santiago that describes “significant differences in the criminal histories among the co-defendants,” discusses Mr. Reyes-Santiago’s criminal history category, and mentions the fact that “[m]ost of the others had less substantial criminal backgrounds.” Id. (citing Reyes-Santiago, 804 F.3d at 472).

With respect to his co-conspirators’ PSRs, Mr. Kennard acknowledges that, as a general rule, information contained in PRSs disclosed under Rule 32(d) of the Federal Rules of Criminal Procedure should generally not be disclosed to third parties. Id. at 4-5. However, pointing to Fourth and Eighth Circuit precedent, Mr. Kennard argues that the confidentiality of PSR information may be lifted in the “interest of justice.” Id. at 4-5 (citing United States v. McKnight, 771 F.2d 388 (8th Cir. 1985); United States v. Figurski, 545 F.2d 389, 391 (4th Cir. 1976)). He says that when the information is “material,” the district court “should examine it in camera and disclose only those portions, if less than all, of the report which meet the [materiality] test.” Id. at 5 (quoting Figurski, 545 F.2d at 391). Here, Mr. Kennard argues that his requests are “in the interests of justice,” id. at 6, and put him in a “better position to make a reasoned sentencing argument with appropriate rationale.” Id. at 8.

B. The Government’s Response

In response, the Government argues that PSR disclosures are “contrary to the public interest and may adversely affect the sentencing court’s ability to obtain data

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on a confidential basis.” Gov’t’s Opp’n at 1-2 (quoting United States v. Martinello, 556 F.2d 1215, 1216 (5th Cir. 1997)). Second, the Government asserts that Mr. Kennard’s own “PSR . . . contains the information [he] needs to make his reasoned sentencing argument” and sufficiently explains how the Government assessed his role in the conspiracy and calculated drug quantities. Id. at 2. The Government further argues that PSRs do not exist for the unindicted co-conspirators and that any information related to the Government’s charging decisions is non-discoverable work product. Id. at 2 n.1.

Next, the Government contends that the criminal history designations of unindicted persons are non-discoverable, and moreover, criminal history is not relevant to role reduction determinations at sentencing. Id. at 2-3. The Government concludes by stating that Mr. Kennard “has identified no basis in either law or rule to suggest that he is entitled to the letter [regarding Mr. Clement’s assistance], or that the letter should be made public.” Id. at 3.

C. Mr. Kennard’s Reply

In reply, Mr. Kennard addresses five points made by the Government. First, Mr. Kennard contends that all of the cases the Governments cites “to support nondisclosure, actually support[] disclosure via in camera process.” Def.’s Reply at 1. Mr. Kennard “requests, at minimum, that the trial court sub judice review requested material on the named individuals and inform counsel as to the results of that review.” Id. at 2.

Second, Mr. Kennard seeks clarification as to whether the drugs attributed to Mr. LaCroix “relate[] to the present proceeding” and “whether any of the other named

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individuals were the subject of federal prosecution in other jurisdictions.” Id. at 2-3. Third, Mr. Kennard clarifies that “if no other drugs were attributed to Chad Clement than those identified in [his own] PSR, then [he] is satisfied on this point.” Id. at 3. However, if “Chad Clement had more drugs attributed to him than those identified in defendant’s PSR, then that information is vital to an assessment of defendant’s relative culpability.” Id. Mr. Kennard asserts that the parties can resolve the question of relative culpability “by comparing the amount of drugs attributed to Chad Clement in defendant’s PSR with the amount of drugs attributed to Chad Clement in Chad Clement’s PSR.” Id.

Fourth, in response to the Government’s argument that a person’s designated role in a conspiracy is based on the instant facts rather than on criminal history designations, Mr. Kennard argues that “a person’s criminal history and their designation within a conspiracy are in fact, ‘facts,’ utilized by courts to properly assess a defendant’s role in a conspiracy.” Id. at 3. As a result, Mr. Kennard asserts that access to other co-conspirators’ criminal history categories will enable him to make a more informed sentencing argument. Id. at 3-4.

Finally, as to the assistance letter, Mr. Kennard submits that he did provide caselaw support for his request, namely Reyes-Santiago, for the proposition that “[i]n fashioning an appropriate sentence, judges are directed by statute to consider ‘the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.’” Id. at 4 (quoting Reyes-Santiago, 804 F.3d at 467). Mr. Kennard further cites United States v. Kravetz, 706 F.3d 47 (1st Cir. 2013),

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to support his claim that he has a vested interest in the judicial records requested and that the “salutary effects serve to support access . . . [to]...