United States v. Weaver

• Citation: 992 F.Supp.2d 152
• Decision Date: 10 January 2014
• Docket Number: No. 13–CR–120 (SJF)(AKT).,13–CR–120 (SJF)(AKT).
• Parties: UNITED STATES of America, v. Edward Morris WEAVER, a/k/a Ned, Lawrence A. Kaplan, Scott M. Doumas, Mark Benowitz, Richard R. Goldberg, Richard Linick, Paul E. Raia, Howard S. Strauss, Wallace W. Direnzo, a/k/a Wally, James P. Ellis, a/k/a Max Braddock, a/k/a Patrick Cosgrove, a/k/a Todd Parker, Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

992 F.Supp.2d 152

UNITED STATES of America,

v.Edward Morris WEAVER, a/k/a Ned, Lawrence A. Kaplan, Scott M. Doumas, Mark Benowitz, Richard R. Goldberg, Richard Linick, Paul E. Raia, Howard S. Strauss, Wallace W. Direnzo, a/k/a Wally, James P. Ellis, a/k/a Max Braddock, a/k/a Patrick Cosgrove, a/k/a Todd Parker, Defendants.

No. 13–CR–120 (SJF)(AKT).

United States District Court,

E.D. New York.

Jan. 10, 2014.

Adrienne E. Fowler, Patrick Jasperse, U.S. Department of Justice, Washington, DC, for United States of America.

Matthew D. Umhofer, James W. Spertus, Spertus, Landes & Umhofer, LLP, Los Angeles, CA, Henry Eduardo Marines, Law Offices of Henry E. Marines, P.A., Silvia Pinera–Vazquez, Pinera–Vazquez Law Firm, Miami, FL, Vincent J. Martinelli, Attorney at Law, Staten Island, NY, Peter J. Tomao, Law Office of Peter J. Tomao, John F. Carman Garden City, NY, Nicholas Gregory Kaizer, Levitt & Kaizer, New York, NY, Francis X. Casale, Jr., Melville, NY, Jonathan H. Rosenthal, Malman, Malman & Rosenthal, Fort Lauderdale, FL, Terrence P. Buckley, Terrence P. Buckley, Esq., Commack, NY, Joseph R. Conway, Larusso & Conway, Mineola, NY, for Defendants.

ORDER

FEUERSTEIN, District Judge:

The twelve (12) count superseding indictment, filed May 1, 2013 (“Indictment”) charges defendants with various crimes in connection with their activities at Vendstar, a company that sold vending machine business opportunities. [Docket Entry No. 39]. The charges include conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 371, and substantive mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343. Jury selection and trial are scheduled as to all defendants ¹ on September 29, 2014. [Docket Entry No. 72].

According to the government, since November 2012, it has produced the following discovery: (1) recordings made by cooperating witnesses, undercover federal investigators, and others; (2) documents from victims; (3) documents from cooperators and third parties; (4) hard copy documents seized during the execution of a search warrant on Vendstar's former business premises; (5) text-based and media files from the computer server imaged during the search; (6) complete forensic images of thirty-eight (38) computers seized during the search, along with all of the text-based files from these computers; and (7) Vendstar customer records stored by cloud provider NetSuite, United States' Opposition to Defendant Weaver's Motion for Identification of Brady Materials (“ Brady Opp.”) [Docket Entry No. 100], at 3–5. The majority of these documents were produced as searchable PDF files organized into categorized folders, and also as “load-ready” files that can be uploaded into a database and searched for keywords, phrases, and file types. Id. at 6. The government also provided “detailed indices that describe, specify the source of and list the bates numbers of the materials.” Id. at 7.

Now before the Court are defense motions seeking: (1) identification of Brady materials (“ Brady Motion”) [Docket Entry No. 82]; (2) production of documents in the possession of cooperators, government communications with cooperating witnesses, and rough notes of government agent interviews (“Motion to Compel”) [Docket Entry No. 83]; (3) immediate disclosure of Jencks and Giglio material (“ Jencks/Giglio Motion”) [Docket Etnry No. 84]; ² and (4) disclosure of government exhibits and identification of 404(b) material one hundred twenty (120) days before trial and production of a witness list two (2) months before trial (“Pretrial Motion”) [Docket Entry Nos. 88, 90].³ For the following reasons, these pretrial motions are granted in part and denied in part.

I. DiscussionA. Brady Motion

Defendants ask that the government be instructed “to conduct immediate review of all documents in its possession in this matter, and identify all Brady materials for all defendants.” Brady Mot. at 1. For the following reasons, this motion is denied.

The Supreme Court's decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), “requires that the government disclose material evidence favorable to a criminal defendant.” United States v. Mahaffy, 693 F.3d 113, 127 (2d Cir.2012). “The government, however, need not provide Brady ... material immediately.”United States v. Messina, No. 11–CR–31, 2012 WL 463973, at *12 (E.D.N.Y. Feb. 13, 2012). Instead, “ Brady material must be disclosed in time for its effective use at trial.” United States v. Coppa, 267 F.3d 132, 135 (2d Cir.2001). “ ‘While the Supreme Court in Brady held that the Government may not properly conceal exculpatory evidence from a defendant, it does not place any burden upon the Government to conduct a defendant's investigation or assist in the presentation of the defense's case.’ ” United States v. Ohle, No. 08 Cr. 1109, 2011 WL 651849, at *4 (S.D.N.Y. Feb. 7, 2011) (quoting United States v. Marrero, 904 F.2d 251, 261 (5th Cir.1990)), aff'd,441 Fed.Appx. 798 (2d Cir.2011); see also United States v. Rubin/Chambers, Dunhill Ins. Servs., 825 F.Supp.2d 451, 454 (S.D.N.Y.2011) (same). “As a general rule, the government is under no duty to direct a defendant to exculpatory evidence within a larger mass of disclosed evidence.” United States v. Skilling, 554 F.3d 529, 576 (5th Cir.2009), aff'd in part and vacated on other grounds,561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010).

Defendants cite three (3) cases from other districts, in which the government was required to identify Brady material that it previously disclosed to the defendants. See United States v. Salyer, 271 F.R.D. 148, 155 (E.D.Cal.2010) (“[F]or documents already disclosed, the government shall specifically identify by Bate [sic] Stamp number or by specific title and location, the information which a reasonable prosecutor would view as exculpatory or impeaching.”); United States v. Hsia, 24 F.Supp.2d 14, 29 (D.D.C.1998) (“The Government cannot meet its Brady obligations by providing [defendant] with access to 600,000 documents and then claiming that she should have been able to find the exculpatory information in the haystack.”); United States v. Adan, 10–CR–260, No. 607–1 at 21 (M.D.Tenn. May 10, 2011) (“The Court concludes that the Government's blanket provision here of 142 disks including disks unrelated to this action does not discharge its Brady and Giglio obligations.”).⁴ However, these cases lack precedential value in this district.

Furthermore, as the government correctly notes, those decisions are factually distinguishable from the instant case. Brady Opp. at 19–21. See United States v. Salyer, 2010 WL 3036444 (E.D.Cal. Aug. 2, 2010) (discovery produced by government to the sole defendant, who had been detained and unable to assist in reviewing documents, included a large amount of hard copy documents that could not be electronically text searched); Hsia, 24 F.Supp.2d at 28 (government produced 600,000 documents without an index to sole defendant); Adan, 10–CR–260, No. 607–1 at 21 (government produced 142 disks, with no additional information or index, which contained a “significant amount of information unrelated to this action”). Here, the government has provided detailed indices for all the materials it produced, the majority of which were provided in both PDF and “load-ready” file format that could be easily searched. See Rubin/Chambers, 825 F.Supp.2d at 457 (holding that “the Government has provided Defendants with access to all potential Brady material and has taken additional steps to facilitate Defendants' review of that material” where disclosures included “searchable electronic productions,” “indices describing documents related to the Featured Transactions,” and “indices of audio recordings”). Because the Government has satisfied its obligation pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the defendants' motion is denied.

B. Motion to Compel

Defendants request that the Court order the government to produce “documents in the possession of any cooperators,” “government communications with cooperating witnesses, including communications regarding immunity and cooperation agreements,” and “rough notes of government agent interviews.” Mot. to Compel at 1.

1. Documents in the Possession of Cooperators

Defendants ask the Court to “order the government to produce any and all documents in the possession, custody, or control of cooperating witnesses that could aid [defendants] in preparing a defense.” Id. at 8. According to the government, it “made a broad request” that each cooperating witness “provide the government with any materials in the witness' possession relevant to the investigation,” and “provided the defense with everything cooperating witnesses provided in response.” United States' Opposition to Motion to Compel Discovery (“Compel Opp.”), at 3–4. Specifically, the government received materials from four (4) cooperating witnesses and the company operated by a fifth cooperating witness, which the government then provided or made available to defendants. Id. at 3. On November 18, 2013, the government received documents from a sixth cooperating witness, which have not yet been provided to the defendants. Id. at 3 n. 2. The government is directed to provide the documents from the sixth cooperating to the defendants by July 1, 2013.

Defendants contend that “documents in the possession, custody, or control of [a cooperating] witness are within the control of the government” because a cooperating witness “has a legal obligation to produce documents to the government on demand.” Mot. to Compel at 7. To the extent that the cooperating witnesses withheld documents relevant to the investigation from the government in response to its request, the government is not required to produce such documents to defendants. See United States v. Roldan–Zapata, 916 F.2d 795, 807 (2d Cir.1990) (“A prosecutor is not required to turn over material that he neither possesses nor knows...