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United States v. Krall

August 4, 2009

UNITED STATES OF AMERICA
v.
KENNETH KRALL



The opinion of the court was delivered by: R. Barclay Surrick, J.

SURRICK, J.

MEMORANDUM

Presently before the Court are Defendant Kenneth Krall's Motion for Discovery (Doc. No. 36), the Government's Omnibus Response to Defendant's Motions for an Evidentiary Hearing and for Discovery (Doc. No. 40), Defendant's Motion Requesting that the Government be Ordered to Produce a Confidential Informant Enabling this Court to Determine the Best Mechanism to Protect the Defendant's Due Process Rights (Doc. No. 42), the Government's Response to the Defendant's Motion Requesting that the Government be Ordered to Produce a Confidential Informant (Doc. No. 44), Defendant's Sur Reply to the Government's Response to his Motion Requesting that the Government be Ordered to Produce a Confidential Informant (Doc. No. 46), Defendant's Motion Requesting that the Government be Ordered to Produce for in Camera Inspection all Documents in its Custody or Control that are Responsive to the Subpoena Served upon DEA Special Agent David Morina so that the Court can Determine the Best Mechanism to Protect the Defendant's Due Process Rights (Doc. No. 45), the Government's Motion to Quash Defense Subpoenas and Government's Response to Defendant's Motion Requesting the Court's in Camera Inspection of Subpoenaed Documents (Doc. No. 50), and Defendant's Ex Parte Offer of Proof in Support of a Frank's Hearing and for an In-Camera Production of Records (Doc. No. 53). For the following reasons, Defendant's Motions will be denied and the Government's Motion will be granted.

I. BACKGROUND

On September 26, 2007, a grand jury returned an indictment charging Kenneth Krall ("Defendant") with one count of possession with intent to distribute approximately 638 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). (Doc. No. 16.) The charge is based upon evidence seized by DEA agents on August 30, 2007, when they executed a search warrant at Defendant's home at 1255 Friendship Lane, Upper Black Eddy, Pennsylvania. The search warrant was issued based upon the affidavit of DEA Special Agent David Morina. (See Doc. No. 45, Ex. 1 at 5-12 (hereinafter, "Morina Aff.").) Agent Morina's affidavit provided, in relevant part, that

7. During the course of this investigation, Detective [Michael] Mosiniak [of the Bucks County District Attorney's Office] and I have personally met with and spoken to an individual (hereinafter referred to as the confidential informant or "CI") who has periodically provided information to detectives of the Bucks County District Attorney's Office and agents of the DEA since approximately June 2005. In June 2005, the CI was stopped by law enforcement officers and found to be in possession of a small amount of methamphetamine; subsequent charges were not filed against the CI. Based on our training and experience, we believe the CI to be knowledgeable in the distribution of methamphetamine and marijuana in the Bucks County, Pennsylvania area. In the past, the CI has provided information to Detective Mosiniak and I in relation to other investigations involving the distribution of controlled substances that has been corroborated by other confidential sources, physical surveillances, records maintained by public databases, and other independent investigative methods, including a court-authorized wiretap. No information provided by the CI has been proven to be false. The CI has refused to testify out of concern for the CI's own safety and the safety of others close to the CI.

8. On August 27, 2007, Detective Mosiniak interviewed the CI regarding Kenneth Krall, a/k/a "Gypsy." Thereafter, Detective Mosiniak related the following information to me:

a. The CI advised that Kenneth Krall (whom the CI also knows as "Gypsy") is a known associate of the Warlocks outlaw motorcycle club and possibly other outlaw motorcycle gangs in the Philadelphia area. The CI stated that at some point in the past, Krall lived with the former president of the Bucks County chapter of the Warlocks, whom the CI knew as "Ajax." According to the CI, "Ajax" had been married to a woman named Brenda Hammerstone but they later separated.

b. According to the CI, Krall currently resides at 1255 Friendship Lane, in Upper Black Eddy, located in Bucks County, Pennsylvania (the subject premises). The CI stated that in addition to a trailer on the property, which serves as Krall's primary residence, Krall also maintains several shed-like structures on the subject premises, in close proximity to the trailer. According to the CI, there are also numerous cars, in various states of disrepair, located on the property.

c. The CI advised that on August 26, 2007, the CI went to the subject premises to retrieve a stolen motorcycle part belonging to the CI, which the CI believed was located at the subject premises. According to the CI, the CI went into the subject premise without Krall's knowledge or permission. (It should also be noted that law enforcement agents were not aware of, and in no way directed or encouraged, the CI's entry onto the subject premises on August 26, 2007.) The CI reported that while looking through some items located in the A-frame shed-like structure situated closest to the trailer on the subject premises, the CI observed a metal ammunition container in a white cabinet located to the left of the door of the shed. Inside the metal ammunition container, the CI saw several clear, vacuum-sealed bags containing a substance which the CI believed to be methamphetamine.

The CI estimated that these bags contained a total of approximately two (2) pounds of methamphetamine. The CI also observed a metal cash box in the white cabinet. Inside the metal cash box, the CI saw: 1) a bag containing a substance which the CI believed to be a smaller amount of methamphetamine; and 2) multiple packs of U.S. Currency, each wrapped in clear plastic and labeled "$5000," which the CI estimated totaled $50,000. (Morina Aff. ¶¶ 7-8.) The remainder of the affidavit detailed additional information that the CI provided about prior interactions between the CI and Defendant, as well as information from another cooperating witness ("CW") concerning five occasions in the Spring of 2006 when the CW went to Defendant's residence to purchase methamphetamine and marijuana.

On December 15, 2008, Defendant filed the Motion for Discovery.*fn1 (Doc. No. 36.) On April 28, 2009, Defendant issued subpoenas to Special Agent Morina and Bucks County Detectives Michael Mosiniak and Michael Walp for production of the following documents:

a. The Search Warrant Affidavit for the Search Warrant described in ¶ 12 of the Affidavit.

b. All documents commonly referred to as DEA 6's prepared from 1990 to the present which refer to Kenneth Krall NADDIS # 4528737.

c. Such documents in the custody and control of the government created during the relevant time period [from 1999 to the present], in connection with the investigation(s) as will show:

i. any and all communications concerning, pertaining to, or referring to the CI. This request includes any communications pertaining to, or referring to "consideration" to the CI . . . .

ii. any and all communications between or among any Law Enforcement Agent and the CI. This request includes any communications pertaining to, or ...


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