United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
On June 16, 2010, Nicholas Djokich was convicted of conspiracy to commit kidnapping and murder. At trial, the jury heard recordings of conversations in which Djokich tried to hire an undercover police officer to kidnap Richard Devries, extort money from him, and then kill him. The court sentenced Djokich to 20 years in prison.
After unsuccessfully appealing his sentence, Djokich filed a motion to vacate under 28 U.S.C. §2255. In the course of briefing his motion, Djokich retained a forensic audio expert to analyze the recordings presented at trial. The expert found signs of possible tampering in several of the recordings. Relying on the expert's report, Djokich has moved for discovery relating to the creation and custody of the recordings. For the reasons explained below, the court is now allowing in part and denying without prejudice in part Djokich's motion for discovery.
A. Trial and Conviction
On November 20, 2008, Djokich and his co-defendant, Eginardo DeAngelis, were charged with conspiracy to commit kidnapping and conspiracy to commit murder for hire. The indictment alleged that the defendants had attempted to hire an undercover law enforcement officer to kidnap and kill Richard Devries. The allegations were based, in significant part, on conversations between Djokich and Massachusetts Bay Transportation Authority Detective Peter Pasciucco. See Docket No. 3 at 6-7. Pasciucco recorded these conversations. Id. The recordings were reviewed and transferred to a compact disc by Immigrations and Customs Enforcement Special Agent Derek Dunn. See id. at 1; see also Docket No. 28 9-1 at 2.
At trial, the government presented as evidence recordings of fifteen telephone conversations and two in-person conversations between Djokich and Pasciucco. See, e.g., June 3, 2010 Trial Tr. at 28, 31, 37, 41. Pasciucco testified that the recordings were fair and accurate records of his conversations with Djokich. Id. He also testified that "[his} contacts [with Djokich] were all audiotaped, " June 7, 2010 Trial Tr. at 40, with the exception of two initial conversations, June 1, 2010 Trial Tr. at 105.
On June 16, 2010, a jury found Djokich guilty on both counts. The First Circuit affirmed the conviction on August 30, 2012. See United States v. Djokich, 693 F.3d 37 (1st Cir. 2012). Djokich's conviction became final on November 28, 2012.
B. Section 2255 Proceedings
On November 26, 2013, Djokich filed a motion to vacate under 28 U.S.C. §2255. Docket No. 254. In his motion, Djokich asserts that his telephone records show several additional telephone calls between Pasciucco and himself that were not introduced into evidence at trial. He argues that the recordings produced admitted at trial may have been edited.
Djokich raises three grounds for relief based on these assertions. First, he contends that there were additional, exculpatory conversations as to which the government failed to produce evidence as required by Brady v. Maryland, 373 U.S. 83, 87 (1963), and its progeny. Second, he argues that if the government did not record the additional calls, Pasciucco was not truthful when he testified that he recorded all but two of his telephone conversations with Djokich. Third, he asserts that he was denied his Sixth Amendment right to effective assistance of counsel when his trial attorney failed to investigate the discrepancy between the government's evidence and Djokich's telephone records.
The government requested discovery regarding the additional telephone calls described in Djokich's motion to vacate. Docket No. 280. The court allowed this request. Docket No. 281. On February 18, 2014, the government filed its opposition to Djokich's motion to vacate. Docket No. 289.
Djokich filed a reply to the government's opposition on March 24, 2014. Docket No. 298. He included the affidavit of a forensic audio expert, Michael Garneau. Id. Ex. 4. Garneau stated that "[t]o definitively confirm or rule out possible tampering (aka. editing) would require either the examination of the actual original recordings or, at the very least, exact copies/clones of the original files." Id. The government provided Djokich with "cloned copies" of the original recordings. See Docket No. 301. The government also provided Garneau with the make and model of the devices used to record the ...