United States District Court, W.D. Pennsylvania
OPINION ON DEFENDANT'S MOTION TO COMPEL
FLOWERS CONTI CHIEF UNITED STATES DISTRICT JUDGE.
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.
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
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. Tr. Mot. to
Compel, Mar. 1, 2017, at 2.
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.
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
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. 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.
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.
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.
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.
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
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). 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
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.
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?
Q. Did you ever tell the defendant that Clark had a gun?
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?
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
A. None whatsoever.
Q. Did you have to threaten the ...