The opinion of the court was delivered by: Judge Caputo
Presently before the Court are various motions by Defendant William Moyer, including a motion to dismiss Count One and Count Two of the Indictment for failure to sufficiently allege a violation of 18 U.S.C. §1519 (Doc. 99), a motion to dismiss Count One and Count Two of the Indictment because §1519 is unconstitutionally vague (Doc. 97), a motion to dismiss Count Three and Count Four of the Indictment for failure to sufficiently allege violations of 18 U.S.C. §§ 1512(c)and 1512(b)(3) (Doc. 101), a motion to compel uncharged misconduct evidence (Doc. 91), a motion for disclosure (Doc. 89), a motion for Brady and Giglio material (Doc. 94), a motion for early production of Jencks material (Doc. 90), a motion to inspect Grand Jury minutes (Doc. 86), a motion to preserve and produce notes, reports, and evidence (Doc. 87), a motion to preserve and produce tapes (Doc. 92), a motion for notice (Doc. 95), and a motion for leave to file additional pretrial motions (Doc. 88.)*fn1 For the reasons discussed below, Defendant's motions will be granted in part and denied in part.
On December 10, 2009, the Grand Jury charged Defendant Moyer with one count of conspiracy under 18 U.S.C. §371, one count of falsification of records under 18 U.S.C. §1519, one count of attempt to conceal a physical object under 18 U.S.C. §1512(c), one count of corrupt persuasion under 18 U.S.C. §1512(b)(3), and one count of making false statements under 18 U.S.C. §1001. The Indictment ("Indict.") alleges the following:
On July 12, 2008 a group of six males, including, Derrick Donchack ("Donchack"), Brandon Piekarsky ("Piekarsky"), Participant # 1, and Participant # 2, assaulted L.R., a Latino Male, while members of the group yelled racial slurs. Specifically, the group yelled: "Spic," "Fucking Spic," "Go back to Mexico," and "Tell your Mexican friends to get the fuck out of Shenandoah." On July 14, 2008, as a result of the assault, L.R. died from blunt-force trauma to the head. (Indict. at 1, Doc. No. 1.)
At the time of the assault, Defendant Hayes was a patrolman for the Shenandoah Police Department, was dating the mother of Piekarsky, and knew the individuals involved in the assault. Defendant William Moyer, a lieutenant in the Shenandoah Police Department, has a son who, at the time of the assault, was a high school freshman on the same football team as the individuals who assaulted L.R. Defendant Matthew Nestor, Shenandoah Chief of Police at the time of the assault, was a friend of Piekarsky's mother and had vacationed with her. (Indict. at 2.)
Defendants Nestor, Moyer, and Hayes conspired in relation to and contemplation of a matter within United States jurisdiction to falsify police reports with the intention of impeding or influencing the investigation and administration of that United States matter. (Indict. at 3.) As part of the means, manner, and object of the conspiracy, Donchak, Piekarsky, Participant # 1, Participant # 2, and two others, Person # 1 and Person # 2, provided false statements to officials regarding the assault. Furthermore, Defendants Moyer, Hayes, and Nestor intentionally failed to record inculpatory statements by Piekarsky and intentionally wrote false and misleading reports and false statements by those involved in the racially motivated assault. (Indict. at 3 - 4.)
In furtherance of the conspiracy, Defendants Moyer and Hayes detained Piekarsky, Donchak, Participant # 1, and others as they were fleeing the scene of the crime, and then released them despite the fact that Person # 3, a 911 caller, identified them as L.R.'s attackers. (Indict. at 4.) Following the assault, Piekarsky took Defendants Hayes and Moyer to the crime scene and told them about the assault. Afterwards, Piekarsky's mother, T.P., spoke to Defendant Hayes, and, while at Donchack's home told Piekarsky, Donchak, Participant # 1, Participant # 2, and others that Hayes said to "get their stories straight" because there could be a murder investigation. (Indict. at 5.) Prior to leaving Donchak's home, Donchak, Piekarsky, Participant # 1, Participant # 2, and others, created a false story which omitted the racial motivation for the assault. (Indict. at 6.) On July 13, 2008, Defendant Moyer went to Participant # 1's home to tell him to decide on a version of events to tell authorities. Between July 13 and July 16, 2008, Donchak, Participant # 1, Participant # 2, Person # 1, and Person # 2 gave false statements to police about the assault. Id.
Weeks following the assault, Defendant Moyer contacted the parents of Participant # 2, telling them to dispose of the sneakers worn on the night of the assault, and following this, Piekarsky and Donchak disposed of the sneakers they wore that night. (Indict. at 7.) On July 29, 2008, Defendant Hayes knowingly created a false report about the investigation of the assault. On or about August 1, 2008, Defendants Moyer and Hayes deliberately mischaracterized witness accounts in official reports to exculpate Piekarsky and falsely implicate Participant # 2, and Defendant Nestor reviewed and approved Hayes' report, which Nestor knew to be false. On or about July 20 and August 1, 2008, Defendant Nestor knowingly created a false report about the assault. (Indict. at 7.) Defendant Moyer created two false reports, one soon after the assault, titled "Lt. William Moyer's Incident Report regarding Case # 125-424," and one on or about August 1, 2008, titled "Investigation of Kids Running from Homicide Scene." (Indict. at 8.)
Shortly before July 24, 2008, Defendant Moyer, knowing that Piekarsky was guilty in the assault, advised the parents of Participant # 2 that the Shenandoah Police Department did not intend to file serious charges, but the District Attorney had taken over the case and Participant # 2 should take full responsibility for the assault. On March 30, 2009, T.P. called the father of Participant # 1, referencing Participant # 1's cooperation with federal authorities. She told the father that Piekarsky would not get indicted if Participant # 1 did not testify against him. (Indict. at 8.) Defendant Moyer corruptly persuaded Participant # 1 to coordinate a story with the other assailants with the intention of hindering the investigation of a federal offense. (Indict. at 11.) Defendant Moyer, in relation to a matter under FBI jurisdiction, lied about Person # 3, a 911 caller, stating that Person # 3 said they saw a man with a gun when Person # 3 actually stated he saw the group of six boys assault L.R. (Indict. at 12.)
I. MOTION TO DISMISS FOR FAILURE TO ALLEGE A VIOLATION OF 18 U.S.C. §1519
Defendant is charged with one count of obstruction of justice under 18 U.S.C. §1519 and one count of conspiracy to violate §1519 under 18 U.S.C. §371. Chapter 73 of Title 18 of the United States Code deals with criminal liability for obstruction of justice. §1519 of that chapter provides:
[w]hoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
18 U.S.C. §1519. Defendant claims that the Indictment must be dismissed because §1519 requires a nexus between the alleged obstructive action and some matter within the jurisdiction of the United States and that the Government has failed to sufficiently allege such a nexus.
Defendant claims that §1519 requires a nexus between the alleged act of obstructing justice and a federal investigation. Defendant relies on two United States Supreme Court decisions which required such a nexus in §§1503 and 1512(b)(2), both of which are obstruction of justice statutes under Chapter 73. Defendant claims that because of the similarities between these statutes and §1519, the nexus requirement in those provisions should be read into to §1519.
First, in United States v. Aguilar, the Court found that 18 U.S.C. §1503 requires a nexus between an obstructive action and the administration of justice which it affects. 515 U.S. 593, 598-600 (1995). Under §1503, anyone who "corruptly or by threats of force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede the due administration of justice" is criminally liable. 18 U.S.C. §1503. This "omnibus clause" is a broad, catch-all provision attached at the end of §1503 and is designed to encompass acts not covered by earlier, more specific provisions in §1503. Aguilar, 515 U.S. at 598. It was under this general provision that the Aguilar was charged. Id.
In finding a nexus requirement in §1503, the Court looked to prior precedent which held that a person was not "sufficiently charged" with obstruction of justice unless that person "had notice that justice was being administered." Id. (quoting Pettibone v. United States, 148 U.S. 197, 207 (1893)). Viewing this precedent, the Court adopted a nexus requirement which had been imposed upon §1503 by some circuit courts; this requirement mandated that "the [obstructive] act must have a relationship in time, causation, or logic with the judicial proceedings" that the action was alleged to have obstructed. See Aguilar, 515 U.S. at 599 (citing United States v. Wood, 6 F.3d 692, 696 (10th Cir. 1993); United States v. Walasek, 527 F.2d 676, 679 (3d Cir. 1975)). This nexus requirement demands that the obstruction has the "'natural and probable effect' of interfering with the due administration of justice." Id. at 599 (quoting Wood, 6 F.3d at 695).
The Court read this nexus requirement into §1503 because the broad, catch-all provision could encompass innocent acts; absent a nexus between the act and the official proceeding, there is no "evil intent to obstruct" or criminal culpability which is normally associated with criminal prosecutions Id. at 599 (citing Pettibone, 148 U.S. at 207). Therefore, "if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding [the nexus], he lacks the requisite intent to obstruct." and is not properly charged under §1503. Id. at 599.
Secondly, in Arthur Anderson LLP v. United States, the Court held that 18 U.S.C. §1512(b)(2) requires a nexus between threats and an official proceeding which those threats obstructed or could obstruct. 544 U.S. 696, 708 (2005). §1512 provides penalty for anyone who: knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to cause any person to: (A) withhold testimony, or withhold a record, document, or other object from an official proceeding or (B) alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding.
18 U.S.C.A. §1512(b)(2). In finding a nexus requirement in §1512(b)(2), the Court focused specifically on the language "knowingly" and "corruptly persuades." See Arthur Anderson, 544 U.S. at 703-08. Joining together the terms knowledge, meaning "awareness, understanding, or consciousness," and corrupt, meaning "wrongful, immoral, depraved, or evil," the Court found that in order to be criminally culpable under §1512(b)(2), a person must be conscious of their wrongdoing. Id. at 706. The Court found that the parties must have had the specific intent to taint the official proceedings in order to meet this requirement. See id. While §1512 does not require a pending or ongoing proceeding in order to bring prosecution, the Court found that such a proceeding must actually have been foreseen or contemplated in order to foster the evil intent mandated by the "knowingly... corruptly persuade" language. Id. at 707-08. This requirement, the Court noted, is essentially the nexus mandated by Aguilar. Id. at 708.
The analysis of whether §1519 requires such a nexus begins with one sound principle: federal courts, in deference to Congress and in order to provide fair warning to the citizenry that its actions would be illegal under federal law, should exercise restraint in construing the reach of federal criminal statutes. Aguilar, 515 U.S. at 600 (citing McBoyle v. United States, 283 U.S. 25, 27 (1931); Dowling v. United States, 473 U.S. 207 (1985)); Arthur Anderson, 544 U.S. at 703. This ideal led the Court to require a nexus in §1503 and §1512(b)(2) prosecutions. See id. Without the requirement of a nexus, the public may not know that their actions are illegal because they would not be aware of the federal proceeding they were obstructing. See id. Restraint is "particularly appropriate... where the act underlying the conviction... is by itself innocuous." Arthur Anderson, 544 U.S. at 703. For instance, in Arthur Anderson, the statute at issue, §1512(b)(2), prohibited someone from persuading a person with intent to cause that person to withhold documents from the government. Id. at 704. Restraint was appropriate because this law could apply to a family member advising a loved one to invoke their Fifth Amendment rights or to a lawyer counseling a client to withhold documents covered by attorney client privilege. Id. Similarly, restraint is appropriate when interpreting §1519. §1519 forbids someone to "knowingly... conceal... any record... with intent to... obstruct... the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States." 18 U.S.C. §1519. This provision, like that at issue in Arthur Anderson, would seemingly apply to a lawyer advising a client to withhold privileged documents, a perfectly innocent activity. It would also apply to the family member advising a loved one to invoke their Fifth Amendment right from self incrimination. Because these legitimate actions could be within the reach of §1519, restraint is required in interpreting this provision.
In light of this principle and established precedent, I find that the nexus requirement of Aguilar and Arthur Anderson should be applied to §1519. §1519 provides criminal liability for anyone who: knowingly alters, destroys, mutilates, conceals, or covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States... or in relation to or contemplation of any such matter or case.
18 U.S.C.A. §1519. First, this statute, when read alongside §§ 1503 and §1512(b)(2), contains similar language to that which led the Court to read a nexus requirement into those statutes. All three of these statutes are found under Section 73 of the criminal code under the heading "Obstruction of Justice" and share a similar spirit. Each statute was enacted with language which broadened previous obstruction laws under Section 73. However with the broadening of the statutes, the Supreme Court, through Aguilar and Arthur Anderson, reigned in the statute through the nexus requirement. The language of §1519, like the "knowingly... corruptly persuades" language in §1512(b)(2), requires that the accused "knowingly" destroy or alter evidence with "intent" to affect a federal investigation or matter within United States jurisdiction. Each statute requires an action of obstruction of justice: obstructing justice by threat of force, altering evidence, or destroying evidence. Each statute also requires some sort of federal proceeding: the due administration of justice, an official proceeding, or any matter within the jurisdiction of any department or agency of the United States. While each statute encompasses different actions and different proceedings, the effect of each statute is the same. The action must be intended to affect the federal proceeding covered in the statute. This is the nexus that is required by Aguilar and Arthur Anderson and also by §1519.
Secondly, the policy underlying the nexus requirement of §§1503 and 1512(b)(2) requires that the nexus requirement be applied to §1519. The nexus is required to maintain the culpable criminal mentality that is normally expected in criminal prosecutions. The nexus mandate is precisely designed to restrain broad, catch-all provisions like that in §1519 from overreaching. It is intended to ensure that ordinary citizens are put on notice as to whether or not the actions they commit are illegal or illegal. In order for citizens to know whether their actions are illegal under §1519, they must be aware of the link, or nexus, between their actions and the matter which is under United States jurisdiction. Absent this awareness, they cannot be said to have the culpable mind set required in criminal proceedings and under Arthur Anderson. See, e.g., Arthur Anderson, 544 U.S. at 703 - 04; Aguilar, 515 U.S. at 599 - 600. Therefore, policy dictates that the nexus requirement imposed on §§1503 and 1512(b)(2) by Aguilar and Arthur Anderson also be demanded under §1519.
The Government argues that Aguilar and Arthur Anderson should not apply to §1519 because Congress intended for the statute to cover a broad range of actions not covered by existing obstruction of justice laws. The argument focuses on a Senate Report pertaining to §1519 which states:
Other provisions, such as [§1503], have been narrowly interpreted by courts, including the Supreme Court in [Aguilar] to apply only to situations where the obstruction [is] closely tied to a pending judicial proceeding... the current laws regarding destruction of evidence are full of ambiguities and technical limitations that should be corrected. This provision is meant to accomplish those ends. Section 1519 is meant to apply broadly to any acts to destroy or fabricate physical evidence so long as they are done with intent to obstruct, impede or influence the investigation or proper administration of any matter, and such matter is within the jurisdiction of an agency of the United States, or such acts done either in relation to or in contemplation of such a matter or investigation... It also extends to acts done in contemplation of such federal matters, so that the timing of the act in ...