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United States v. Piekarsky

August 11, 2010


The opinion of the court was delivered by: A. Richard Caputo United States District Judge



Presently before the Court are the Joint Pre-Trial Motions of Defendants Brandon Piekarsky and Derrick Donchak. (Doc. 59.) Defendants' motions request that the charges against them be dismissed, or in the alternative that certain evidence be excluded from trial and that the government be compelled to produce additional discovery. For the reasons discussed below, Defendants' motions will be denied.


The Indictment ("Indict.") alleges the following: On or about July 12, 2008, at approximately 11:30 p.m., a group of six males including Defendants Derrick Donchak ("Donchak") and Brandon Piekarsky ("Piekarsky"), along with Participant #1 and Participant #2, confronted L.R., a Latino male, in a public park. (Indict. ¶ 3.) The group assaulted L.R. on a public street by striking and kicking him while members of the group yelled racial slurs at L.R. (Id. ¶ 3.) After the assault, L.R. lost consciousness and remained comatose until dying on July 14, 2008. (Id. ¶ 4.) L.R.'s death was ruled a homicide caused by blunt-force trauma to the head. (Id. ¶ 5.)

Donchak, Piekarsky, Participant # 1, and others were stopped by Patrolman Jason Hayes ("Hayes") and Lieutenant William Moyer ("Moyer") of the Shenandoah Police Department while fleeing the scene of the assault. (Id. ¶ 6.) Hayes was at all relevant times dating Piekarsky's mother, and knew of all individuals involved in the assault on L.R.. (Id. ¶ 12.) Moyer's son played on the same football team as those individuals who assault L.R. (Id. ¶ 13.) Piekarsky went with Hayes and Moyer to the scene and described the assault. (Id., Count II, ¶ 6.) Shortly after the assault, several assailants, including Donchak, met at Donchak's home to discuss the assault. (Id., Count II, ¶ 7.) Piekarsky called Donchak and informed him that he had spoken to the police. (Id., Count II, ¶ 8.) Piekarsky then traveled to Donchak's home and agreed with Donchak and others to give a false account of the assault in official statements to the authorities. (Id., Count II, ¶ 9.) The group agreed to provide a false version of the events omitting Piekarsky's kicking L.R. and the racial motivation for the assault. (Id., Count II, ¶ 11.) Donchak later discussed the need to dispose of shoes worn by co-conspirators during the assault of L.R. (Id., Count II, ¶ 13.) On July 13, 2008, Donchak gave false and misleading statements to the authorities about the assault on L.R. (Id., Count II, ¶ 16.) Donchak and Piekarsky disposed of sneakers they wore on the night L.R. was assaulted. (Id., Count II, ¶ 20.) Members of the Shenandoah Police Department, including Chief Matthew Nestor ("Nestor"), Hayes, and Moyer failed to memorialize or record inculpatory statements made by Piekarsky about the attack on L.R. (Id., Count II, ¶ 4.) Nestor was a friend of Piekarsky's mother. (Id. ¶ 6.) Nestor, Moyer, and Hayes also knowingly and intentionally filed false and misleading reports about their investigation into the assault on L.R. (Id., Count II, ¶¶ 22-27.)

On December 10, 2009, the Grand Jury charged Defendants Piekarsky and Donchak with intentionally intimidating a person from occupying a dwelling because of their race pursuant to 42 U.S.C. § 3631. The Grand Jury also charged Donchak with two counts of obstruction of justice pursuant to 18 U.S.C. §§ 1519 and 2, and one count of conspiracy to violate 18 U.S.C. § 1519 pursuant to 18 U.S.C. § 371. Defendants filed the present joint pre-trial motions on April 20, 2010. (Doc. 59.) These motions have been briefed by both sides and are now ripe for disposition.



Rule 7(c)(1) requires an indictment to contain "a plain, concise, and written statement of the essential facts constituting the offense charged" and a statement of which statutes the defendant is alleged to have violated. Fed. R. Crim. P. 7(c)(1). Under Federal Rule of Criminal Procedure 12(b)(3)(B), motions claiming a defect in the indictment must be raised prior to trial. In ruling on a Rule 12(b)(3)(B) motion to dismiss, the court's role is not to determine the sufficiency of the evidence, but to determine whether the allegations in the indictment are sufficient to charge the named offense. See United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir. 2000) (citing United States v. Sampson, 371 U.S. 75, 78-79 (1962)). The trial court should consider only those objections "that are capable of determination without the trial of the general issue." United States v. Carlos Alberto Diaz-Gomez, No. CRIM. 88-484-1, 2000 WL 1868394, at *3 (E.D. Pa. 2000) (quoting United States v. Donsky, 825 F.2d 746, 751 (3d Cir. 1987)). Because a motion to dismiss should not be decided based on weigh of the evidence, the allegations in the indictment are assumed to be true. See Diaz-Gomez, 2000 WL 1868394, at * 3.

To determine the sufficiency of an indictment, courts utilize a two part test: (1) "whether the indictment contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and (2) enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Oliver, No. 01-3223, 2002 WL 31474532, at *1 (3d Cir. 2002) (quoting United States v. Hodge, 211 F.3d 74, 76 (3d Cir. 2000)). "No greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution." United States v. Bryant, 556 F.Supp.2d 378, 383 - 84 (D. N.J. 2008) (quoting United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007)). In reviewing an indictment, a court should use "common sense" to determine "whether [a defendant's] conduct, as charged 'reflect[s] a proper interpretation of criminal activity under the relevant criminal statute.'" Id. at 384 (quoting Hodge, 211 F.3d at 76; United States v. Delle Donna, 552 F.Supp.2d 475, 483 (D. N.J. 2008)).


There is no constitutional right to discovery in a criminal case. United States v. Mariani, 7 F.Supp.2d 556, 561 (M.D. Pa. 1998) (citing Weatherford v. Bursey, 429 U.S. 545, 559 (1977)). However, some evidence, courts have reasoned, must be disclosed to protect defendants' due process rights. For instance evidence which is both exculpatory and material must be disclosed by the government. Id. (citing Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v. Higgs, 713 F.2d 39, 42 (3d Cir. 1983)). Exculpatory evidence is evidence which "goes to the heart of the defendant's guilt or innocence as well as that which might alter the jury's judgment of the credibility of a crucial prosecution witness." Giglio v. United States, 405 U.S. 150, 154 (1972). Exculpatory evidence should be found to be material if it raises reasonable ...

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