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United States v. Rydze

United States District Court, W.D. Pennsylvania

April 25, 2017

UNITED STATES OF AMERICA
v.
RICHARD A. RYDZE

          OPINION ON DEFENDANT'S MOTION TO COMPEL DOCUMENTS

          JOY FLOWERS CONTI CHIEF UNITED STATES DISTRICT JUDGE.

         I. Background

         A Motion to Require the Government to Produce Unredacted Reports Regarding Clark Sikorski was filed by defendant Richard A. Rydze (“defendant” or “Rydze”). ECF No. 492. Defendant moves to compel the government to turn over evidence of “the role of Sikorski as a government informant to the extent it may bear directly or indirectly on the government's case or Rydze's defense.” Def. Br. Require Gov. to Prod. Unredacted Reports re Clark Sikorski, at 3, ECF No. 481. Specifically, defendant sought disclosure of the entire unredacted FBI reports relating to Sikorski. Defendant argued that he is entitled to this material at the time of trial as it relates to the issue whether Clark Sikorski (“Sikorski”) acted in a coercive manner toward Rydze, and as it relates to an entrapment defense. Defendant expected that the evidence would show that Sikorski directly influenced William Zipf (“Zipf”) during the course of his obtaining prescriptions from Rydze.

         This dispute is not the first issue between the parties regarding Sikorski. On January 25, 2017, defendant filed a Motion to Compel Production of Documents Concerning Clark Sikorski requesting all potentially exculpatory or impeachment material referring or relating to Sikorski. ECF No. 392. The motion was determined to be moot after the government provided certain material to defense counsel, some of which was redacted.

         On February 14, 2017, defendant filed a Motion to Compel Disclosure of Whereabouts of Clark Sikorski and for In Camera Review of Redacted Agent Memoranda Regarding Sikorski. ECF No. 397. Prior to a hearing on the motion the court ordered the government to produce the unredacted material in camera. At the hearing on March 1, 2017, the court ordered one sentence of the redacted material to be unredacted and turned over to the defense.[1] Tr. Mot. to Compel, Mar. 1, 2017, at 2.

         After argument on the motion to compel the whereabouts of Sikorski, the court denied the motion without prejudice, depending upon whether some evidence of coercion would be adduced during the trial. Id. at 13. At this point in the trial it was known that Sikorski acted as a confidential informant for the government. The government also confirmed that it was not calling Sikorski as a witness in its case.

         The court permitted the defense to recall Zipf to testify about a letter Zipf wrote to defendant while he was in prison, which mentioned Sikorski, as well as to testify about any threats involving Sikorski, if evidence of such threats was introduced at trial. During Zipf's testimony on behalf of the government he testified that he never threatened Rydze, or conveyed any threats on behalf of Sikorski to Rydze, and that Rydze freely wrote prescriptions for him whenever he asked.

         During Rydze's direct testimony he testified that Zipf had threatened Rydze that unless he continued to write prescriptions for Zipf, Sikorski would physically injure Rydze or his children.[2] Rydze testified that it was fear of the threat relayed through Zipf that caused Rydze to write the prescriptions even though he knew there was no medical basis for the prescriptions. Evidence that Sikorski was physically big and was a “bad dude” was introduced at various times throughout the trial, including through the testimony of Rydze and Zipf.

         Having introduced circumstantial evidence in support of the defense of coercion, the court indicated that it would grant a renewed motion to compel the government to disclose the whereabouts of Sikorski.

         On cross-examination of Rydze, the government challenged the coercion theory in several ways, one of which was to question Rydze about his face-to-face interaction with Sikorski during several doctor-patient encounters the two had over the years. The gist of the government's cross-examination was to introduce evidence to the jury that despite Rydze's testimony that he feared he would be injured by Sikorski, Rydze nonetheless continued to treat Sikorski as a doctor.

         To emphasize the government's theory that Rydze did not fear Sikorski it played an audio recording of one of Sikorski's medical appointments with Rydze. The conversation between Rydze and Sikorski conveyed a typical doctor-patient encounter indicating that the two men knew each other and were friendly toward each other. The encounter was unremarkable and noncontentious.

         After the audio was played Rydze agreed with the government that during the encounter he “spent quite a bit of time talking to” Sikorski. Tr. Rydze Testimony, Apr. 6, 2017, 85. The government asked Rydze, “in the middle of your appointment, you even socialized some with [Sikorski] a little bit?” Id. Mr. Rydze responded, “We did talk, yes. He is very manipulative.” Id. The implication, apparently, being that despite the objectively friendly nature of the encounter revealed by the audio recording, Rydze did fear Sikorski, although Rydze never explicitly stated that he feared him during the encounter.

         On redirect, Rydze's counsel appropriately attempted to counter the audio recording evidence by asking Rydze, “did you consider Mr. Sikorski in that interaction to be behaving at all in a threatening manner?” Tr. Rydze Testimony, Apr. 10, 2017, 113-14. Rydze's response was he thought Sikorski made threatening remarks about (not to) another individual (not Rydze).[3] A reasonable jury could find that Rydze's response indicates that he did not consider Sikorski's behavior to be threatening “in that interaction, ” since he chose to characterize Sikorski's recounting of an event in his own life as indicating that Sikorski was threatening to someone else.

         Counsel asked Rydze if “that interaction that you had, that you supposedly referenced, [was] consistent with your experience with Mr. Sikorski, ” to which Mr. Rydze testified, “[Sikorski] always had that air that he could take care of you in one minute, yes.” Id. 114.

         Defendant recalled Zipf as his own witness, in part, to question Zipf about threats related to Sikorski. On cross-examination Zipf directly contradicted Rydze's testimony about threats relating to Sikorski.

Q. Mr. Zipf, was Clark Sikorski involved in you getting prescriptions from the defendant Richard Rydze as charged in the indictment in this case?
A. No, he was not.
Q. Did you ever tell Richard Rydze when you were asking for prescriptions in your name, Morgan's name, Clifford's name, your father's name that Clark was outside?
A. No.
Q. Did you ever tell the defendant that Clark had a gun?
A. No.
Q. Did you ever tell the defendant that if he didn't give you prescriptions, Clark knew where his sons lived?
A. No. That doesn't make any sense.
Q. Did you ever tell the defendant in order to get these Oxycodone or Oxycontin or Opana prescriptions, that Clark knew how he walked or how he walked to work?
A. No.
Q. Did you ever threaten Richard Rydze with the name of "Clark Sikorski" in order to get prescriptions for Oxycontin, Opana, or Oxycodone that are charged in this indictment?
A. None whatsoever.
Q. Did you have to threaten the ...

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