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United States of America v. David Curran

April 12, 2011

UNITED STATES OF AMERICA
v.
DAVID CURRAN, BRADLEY BARNDT, COSMO FAZIO, AND FRANCO BADINI, DEFENDANTS.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

OMNIBUS PRETRIAL MOTIONS ORDER

Presently before the Court for disposition are numerous pre-trial motions (Document Nos. 342, 343, 348, 356, 359, 360, 361, 363, 483, 484, 489, 493, 494, and 495) which have been filed by the remaining Defendants*fn1 in this large drug conspiracy case. The government, with the Court's permission, filed an Omnibus Response to the motions (Document No. 521). The motions are now ripe for disposition.

Factual and Procedural Background

On March 30, 2010, a nine-count Superseding Indictment was returned by the Grand Jury which charged sixteen (16) defendants as follows: Count 1 of the Superseding Indictment charges all sixteen (16) Defendants with conspiracy to distribute and possess with intent to distribute five (5) kilograms or more of cocaine, from in or around January 2009 to on or about December 15, 2009, in violation of 18 U.S.C. § 846. Counts 2, 4, 6 and 8 of the Superseding Indictment charges Defendants David Curran (Counts 2, 4, 6) and Michael Lucerne (Counts 2, 8) with distribution of a quantity of cocaine, on or about August 21, 2009 (Counts 2 and 4), October 3, 2009 (Count 6), and October 29, 2009 (Count 8), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Counts 3 and 7 of the Superseding Indictment charge Defendants Christopher Neiport (Count 3) and Joseph Sciarretti (Count 7) with possession with intent to distribute a quantity of cocaine, on or about August 21, 2009 (Count 3) and October 3, 2009 (Count 7), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Count 8 of the Superseding Indictment charges Defendant Jeffrey Kachmar with possession with intent to distribute a quantity of cocaine, and five (5) grams or more of cocaine base, in the form commonly known as crack, on or about September 3, 2009, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 841(b)(1)(B)(iii). Count 9 of the Superseding Indictment charges Defendant William Davis with possession of ammunition by a convicted felon on or about December 15, 2009, in violation of 18 U.S.C. § 922(g)(1).

To date, nine (9) defendants have pleaded guilty before this Court, two (2) additional defendants are scheduled to plead guilty in April, 2011, and one defendant is scheduled to plead guilt in May, 2011.*fn2

Defendant David Curran has filed the following pretrial motions: Motion to Compel Production of Brady Materials (Document No. 483), Motion to Produce Evidence That The Government Intends to Use Under Federal Rules of Evidence 404(b) and 609 (Document No. 484), and Motion for Disclosure of Promises of Leniency and/or Existence of Plea Bargain Agreements (Document No. 489).*fn3

Defendant Bradley Barndt has filed the following pretrial motions: Motion for Discovery (Document No. 342-1), Motion for Bill of Particulars (Document No. 342-2), Motion for Government Agents and State and Local Law Enforcement Officers to Retain Rough Notes and Writing (Document No. 342-3), Motion to Disclose and Exclude Uncharged Misconduct Evidence (Document No. 342-4), Motion for Notice By the Government of Intention to Use Evidence Arguably Subject to Suppression (Document No. 342-5); Motion for Early Disclosure of Jencks Material (Document No. 343-1), Motion to Preserve Evidence (Document No. 343-2), Motion to Exclude Evidence of Defendant's Prior Convictions (Document No. 343-3), Motion for Leave to File Additional Pretrial Motions (Document No. 343-4), Motion to Require the Prosecution to Reveal Any Agreement, Concession or Grant of Immunity (Document No. 348), Motion for Discovery (Document No. 356), Motion for Notice to Use Evidence Arguably Subject to Suppression (Document No. 359), Motion to Disclose and Exclude Uncharged Misconduct Evidence (Document No. 360), Motion to Require Law Enforcement Personnel to Retain Rough Notes (Document No. 361), and Motion to Compel Disclosure of Plea Bargains, Preferential Treatment and Promises to Governmental Witnesses (Document No. 363).

Defendant Franco Badini has filed the following pretrial motions: Motion for Discovery (Document No. 493), Motion to Produce Evidence Which The Government Intends to Use Under FRE 404(b) and 609 (Document No. 494), Motion to Compel Notice by the Government of Its Intention to Use Certain Evidence (Document No. 495), and Motion to Join in Pretrial Motions of Co-Defendants (Document No. 496).

Legal Analysis

The Court turns now to the pending motions. The Court has elected to follow the "grouping" methodology used by the government in its Omnibus Response as the most efficient and easiest to follow, for the convenience of all concerned.

1. General Discovery Motions (Nos. 342-1, 356, and 493)*fn4

At the outset, the Court notes that the government has acknowledged its obligations under Brady and its progeny, Federal Rules of Criminal Procedure 12 and 16, and the Jencks Act.

The Court notes that it interprets relevant case law of the Court of Appeals for the Third Circuit as encouraging the early disclosure of all exculpatory evidence, including strictly impeachment evidence. See United States v. Starusko, 729 F.2d 256, 261 (3d Cir. 1984)(re-affirming appellate court's longstanding policy which encourages early production of Brady material); United States v. Kaplan, 554 F.2d 577, 578 (3d Cir. 1977) ("we disapprove and discourage a practice of delayed production"); Government of the Virgin Islands v. Ruiz, 495 F.2d 1175, 1179 (3d Cir. 1974) (encouraging "an affirmative policy of prompt compliance").

Local Criminal Rule 16(c) requires "subject to a continuing duty of disclosure, the government shall notify the defendant of the existence of exculpatory evidence, . . . ." For the purpose of compliance with this Memorandum Order, "exculpatory evidence" as referenced in Local Criminal Rule 16(C) is defined by the Court based on case law as follows: all material information favorable to the accused because it tends to:

(1) cast doubt on the defendant's guilt as to any essential element in any count in the indictment or information; (2) cast doubt on the admissibility of evidence that the government anticipates offering in its case-in-chief, that might be subject to a motion to suppress or exclude, which would, if allowed, be appealable pursuant to 18 U.S.C. § 3731; (3) cast doubt on the credibility or accuracy of any evidence that the government anticipates offering in its case-in-chief; or (4) diminish the degree of the defendant's culpability or defendant's Offense Level under the United States Sentencing Guidelines.

The Court is confident that the government is well aware of its due process continuing obligation to provide all exculpatory material in its files to Defendants, including Brady / Giglio impeachment evidence, and that it takes that obligation seriously and will faithfully discharge its duty without ...


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