United States v. Nickas
| Decision Date | 08 July 2022 |
| Docket Number | 3:21-CR-143 |
| Parties | UNITED STATES OF AMERICA, v. SUSAN MELISSA NICKAS and JEREMY JOHNSON, Defendants |
| Court | U.S. District Court — Middle District of Pennsylvania |
Before the court in this case with charges of drug trafficking conspiracy and distribution of illicit drugs resulting in death, are three pre-trial motions, (Docs. 77, 79 & 81) including one discovery motion, a suppression motion, and a motion to sever the trial with her co-defendant, filed by defendant Susan Melissa Nickas, (“Nickas”). The motions of defendant Nickas have been briefed and Exhibits have been submitted. For the reasons set forth below, the court will GRANT IN PART and, DENY IN PART the pre-trial discovery motion of defendant Nickas. The court will rule on Nickas' other two pending motions in separate Memoranda.[1]
On May 18, 2021, a grand jury charged Nickas and Johnson with two counts in an Indictment, to wit: Count 1, Conspiracy to Distribute Controlled Substances Resulting in Death, in violation of 21 U.S.C. §846 and §841; and, Count 2, Distribution of a Controlled Substance Resulting in Death, in violation of Title 21 U.S.C. §841(a)(1). (Doc. 1).
On May 26, 2021, Nickas and Johnson were arraigned, and they both entered pleas of “Not Guilty” to the charges. Johnson was ordered detained by the court and has remained detained at Lackawanna County Prison to the present time. Nickas was originally detained but was later released from custody pending trial by the court.
On May 17, 2022, Nickas filed her three pre-trial motions, (Docs. 77, 79 & 81), namely, a motion to sever her trial from Johnson's trial, a motion to suppress evidence and her statements, and a motion for a pre-trial disclosure timetable for discovery material under Fed.R.Crim.P. 16. Nickas concedes that the government has produced “several” discovery materials to date, but she seeks the court to order the government to produce additional material based on a timetable she proposes for pretrial disclosures, speculating that she and her counsel “believe[] that government counsel has withheld production or not gathered for production” the following: information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), as well as Giglio material; copies of any recorded interviews of her co-defendant Johnson and any witnesses, including Kaleigh Watson; disclosure of all Brady impeachment information relating to the testimony of the government's witnesses, including Kaleigh Watson, as well as any information that may be admissible to impeach them under Fed.R.Evid. 608(b), (see Doc. 97-1); notice pursuant to Fed.R.Evid. 403 and 404(b) for the government to disclose all evidence of other or similar crimes, wrongs, or acts, allegedly committed by her or by her co-defendant to be used at trial; the names of each expert witness and related information who the government plans on calling to testify at trial; all witness statements required to be produced under Jencks, 18 U.S.C. §3500; certain witness interview memos and rough notes, particularly information regarding Kaleigh Watson, such as information “bearing upon Watson's alleged lack of memory, drug use, inconsistent statements”; the identities of witnesses the government expects to call in its case-in-chief; and a pre-marked copy of exhibits the government expects to use in its case-in-chief.
Nickas also appears to seek a time certain for the government to produce all of the co-conspirators and the overt acts it will attempt to prove at trial, as well as any information relevant to the drug trafficking conspiracy count, Count 1.
Nickas simultaneously filed her brief in support of her pre-trial discovery motion on May 17, 2022. (Doc. 82).
After being granted an extension of time, on June 15, 2022, the government filed its brief in opposition to Nickas' discovery motion. (Doc. 89).
On June 17, 2022, Nickas filed her reply brief in support of her discovery motion with an attached Exhibit. (Doc. 97).
The court conducted the final pre-trial conference, (“FPTC”), in this case on June 22, 2022, and the trial date is set for July 25, 2022.
The court will address Nickas' pre-trial discovery motion, (Doc. 81), in this Memorandum.[2]
Initially, Nickas, (Doc. 82 at 3), admits that “[t]o date, government counsel has made several discovery productions, a large production of material on or about June 11, 2021, and smaller supplemental productions in April and May 2022. . However, Nickas contends that a timetable is necessary for remaining discovery materials because:
the government has alleged Ms. Nickas' participation in a drug trafficking conspiracy that existed in excess of a year and has not identified all of the coconspirators or the overt acts it will attempt to prove at trial. Defense counsel expects the proposed timetable to ensure a fair trial by preventing surprise and providing adequate time for the defense to review evidence, investigate, and attempt to interview unanticipated witnesses in advance of trial.
Nickas' detailed proposed disclosure timetable is set forth in her brief. (Doc. 82 at 8-9). Based on Nickas' proposed “Disclosure Schedule”, the court will now address the specific discovery requests of the defendant, which are as follows:
At the outset, the court recognizes that the government has already provided Nickas and Johnson with “voluminous disclosure of evidence”, which the government indicates, (Doc. 89 at 2), includes the following:
The Government has to date essentially provided its entire investigative file, including all electronic communications in their entirety (mirror images) (e.g. cell phone, Facebook) obtained pursuant to search warrants and/or court orders, along with all certificates of authenticity. The Government has turned over all photographs, call detail records detailing GPS location data, additional other relevant GPS location data generated via employer software (TRIPS report), medical records, toxicology results, all lab reports, the defendants' recorded interviews, prison records, inmate prison/text communications, ambulance reports, bank records, guardianship documents, expert notices and reports, and other miscellaneous but not particularly relevant information. All physical evidence seized has been available to the defendants] for inspection.
The government is also cognizant of its duty to supplement the discovery materials it has already provided to the defendants “as the investigation continues and information becomes available [prior to the trial].” Insofar as the government has made all of the physical evidence seized available to the defendants, and represents that “[a]ll tangible physical evidence has been continuously available for review since the time of arraignment”, if the defendants and their counsel want to inspect the stated evidence, it is incumbent upon them to make the arrangement with the government before the trial.
In U.S. v. Yawson, 2014 WL 3401663, *1 (W.D. Pa. July 10, 2014), the court stated:
Generally, governmental disclosure of evidence in criminal cases is governed by Federal Rule of Criminal Procedure 16(a). The United States Court of Appeals for the Third Circuit has recognized that discovery in criminal cases is limited to those areas delineated in Rule 16(a)(1) “with some additional material being discoverable in accordance with statutory pronouncements and the due process clause of the Constitution.” United States v. Ramos, 27 F.3d 65, 68 (3d Cir. 1994). As a general matter, these other areas are limited to the Jencks Act and materials available pursuant to the “Brady doctrine.” Id.
Regarding Nickas' requests numbers 1, 2 and 4, above, the government responds, in part, as...
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