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United States v. Lombardo

United States District Court, M.D. Pennsylvania

July 26, 2017

UNITED STATES OF AMERICA
v.
SAMUEL M. LOMBARDO, Defendant

          MEMORANDUM

          JAMES M. MUNLEY JUDGE

         Before the court for disposition are several pretrial motions filed by Defendant Samuel M. Lombardo. The motions have been briefed, and they are ripe for disposition.

         Background

         On December 8, 2015, a grand jury returned a four-count indictment against Defendant Samuel Lombard. (Doc. 1 at 1). Counts 1 and 2 of the indictment charges defendant with violating 21 U.S.C. § 841(a)(1) for knowingly and intentionally distributing heroin on August 12, 2015 and August 13, 2015 in Luzerne County. (Id.) Count 3 charges defendant with violating 21 U.S.C. § 841(a)(1) for knowingly and intentionally possessing with the intent to distribute heroin on August 12, 2015 and August 13, 2015 in Luzerne County. (Doc. 1 at 2). Finally, Count 4 charges defendant with knowingly and intentionally possessing a firearm during and in relation to a drug trafficking crime on August 13, 2015 in Luzerne County in violation of 18 U.S.C. § 924(c). (Doc. 1 at 3). Count 4 of the indictment describes the weapon allegedly possessed by defendant as a .25 caliber Armi Tanfolio semi-automatic handgun with the serial number MI93340. (Doc. 1 at 3).

         The indictment includes forfeiture allegations pursuant to 18 U.S.C. § 924(d), 28 U.S.C. § 2461(c), and 21 U.S.C. § 853. (Doc. 1 at 3-4). Specifically, the indictment orders defendant, if convicted, to forfeit the .25 caliber Armi Tanfolio semi-automatic handgun with the serial number MI933403 and any other property or proceeds obtained directly or indirectly as a result of the offenses. (Doc. 1 at 4).

         On April 11, 2016, defendant filed a motion for discovery requesting video tape surveillance, any statements made by defendant or co-defendants, all FBI notes, memos, 302s and other discoverable prosecution reports about defendant, and any information regarding informants or cooperating witnesses. (Doc. 12 at 2).

         On April 11, 2016, defendant also filed a motion to compel the government to provide defendant with evidence of any uncharged misconduct pursuant to Federal Rules of Evidence 404(a) and 404(b) that will be used to impeach the defendant if he chooses to testify. (Doc. 13 at 4).

         Finally, on April 11, 2015 defendant filed a motion for a bill of particulars requesting the government specifically state how it intends to prove the defendant intentionally and knowingly used a firearm in relation to a drug trafficking crime on August 12, 2015 and August 13, 2015 in violation of 18 U.S.C § 924(c). (Doc. 11 at 2). Additionally, defendant requests the government identify specifically what property and proceeds beyond the handgun are included in the forfeiture allegation. (Doc. 11 at 3). The Government maintains a bill of particulars is inappropriate in this case because the indictment sufficiently described the charges filed against defendant. (Doc. 46 at 10).

         We will address each of the defendant's motions in turn.

         Discussion

         I. Defendant's Motion for Discovery

         Rule 16 of the Federal Rules of Criminal Procedure requires the government, upon defendant's request, to disclose any relevant written or oral statements made by defendant. Fed. R. Crim. P. 16(a)(1)(A-B). Rule 16 also requires the government to produce copies of “books, papers, documents, data photographs, tangible objects, buildings or places” if the item is under government control and is material to preparing a defense. Fed. R. Crim .P. 16(a)(1)(E)(i).

         Here, defendant filed a motion for discovery on April 11, 2015 and requested the government produce video tape surveillance, any written or recorded statements made by the defendant or co-defendant, any “FBI notes, memos, 302s, or other discoverable prosecution reports pertaining to defendant, and any information regarding informants or cooperating witnesses, including transcripts of the grand jury testimony.” (Doc. 12 at 2). The government responded to defendant's motion on June 15, 2017. (Doc. 43 at 1). As of June 16, 2017, the government provided defendant with the surveillance video in addition to recorded conversations between defendant and the CI, and photographs of the defendant and CI sitting in defendant's car on August 12, 2015 and August 13, 2015. (Doc. 46 at 3-4). Further, the government agreed to provide defendant with any additional discovery as it becomes available. (Doc. 43 at 1).

         It appears the government has endeavored to provide defendant with all material in its possession. (Doc. 43 at 1). Further, the government indicated it will continue to produce materials as they become available. (Doc. 43 at 1). Accordingly, we will deny this motion without prejudice because ...


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