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United States v. Herr

United States District Court, D. Massachusetts

August 2, 2016

UNITED STATES OF AMERICA
v.
CODY HERR, Defendant

          ORDER ON DEFENDANT’S MOTION TO COMPEL

          David H. Hennessy United States Magistrate Judge

         Before the court is Defendant Cody Herr’s motion to compel discovery, in accordance with Local Rule 116.6. (Docket No. 40). The United States filed an opposition (Docket No. 43). At the request of Defendant, the court heard oral argument on July 7, 2016. Thereafter, the court directed Defendant to prepare a proposed protective order, and invited the United States to submit any opposition to the protective order. (Docket No. 49). Defendant submitted a proposed protective order (Docket No. 51), and the United States filed an opposition to the protective order on July 22, 2016. (Docket No. 56). The matter is now ripe for adjudication. For the reasons discussed below, the motion is granted in part and denied in part.

         Procedural History

         Defendant Herr is charged by indictment with Murder for Hire, and Possession of a Firearm in Furtherance of a Crime of Violence. See Docket No. 6. Pursuant to 18 U.S.C. § 924(c), the latter charge carries a penalty of five years on and after any sentence imposed on the charge of murder for hire. Apart from the instant motion to compel discovery, there is pending Defendant’s motion to dismiss the Section 924(c) charge. See Docket No. 50. Despite this litigation posture, Defendant requested at the July final status conference, that the case be transferred to the District Judge for a Rule 11 hearing. See Docket No. 48. As discussed below, this request factors into the court’s determination of the instant motion.

         The genesis of the instant motion is a discovery request dated April 25, 2016, in which Defendant seeks discovery regarding a cooperating witness (“CW”) who assisted agents in investigating this case. See Docket No. 40-1. The discovery request seeks 15 items. The United States responded by letter dated May 26, 2016. See Docket No. 40-2. It agreed to comply with requests 14 and 15, but declined to produce information responsive to Requests 1 through 13.

         Requests 1 through 4 are so-called 28-day materials; that is, information that the District Court’s Local Rule 116.2(b)(1) requires the government to produce within 28 days of arraignment. Defendant cites Local Rule 116.2 as authority for three of these requests.

         Requests 5 through 12 seek materials that the government characterizes as 21-day materials; that is, information the District Court’s Local Rule 116.2(b)(2) requires the government to produce not later than 21 days before trial. The government supports its position by comparing the requests to the categories of information called for by this Local Rule. Defendant’s letter cites no authority for production of such 21-day materials.

         A last contested item seeks an unredacted video and audio recording of a meeting in which Defendant, a cooperating witness and -- at least for part of the meeting -- an undercover agent participate. An unredacted audio has been produced; the government objects to producing an unredacted video which may show an image of the CW and thereby identify him to Defendant.

         Relevant Factual History

         In 2015 the CW was the cellmate of one Adam Bradley. Bradley was awaiting trial for a 2012 murder. See Complaint Affidavit (“Aff.”) ¶¶4, 6-7. Bradley asked the CW to murder a trial witness and gave the CW the witness’s name, description, and place of employment. See Aff ¶ 7. This witness had already testified at the trial of two of Bradley’s codefendants. One was convicted of murder and received a life sentence; the other was convicted of obstructing a police investigation and received a 5 to 7-year sentence. See Aff. ¶ 5. To facilitate their communications about the murder, the CW and Bradley adopted a code as follows: a cell phone meant a gun; a battery meant ammunition; make it snow meant do the murder; Snowman was the CW; Gingerbread man was Bradley. See Aff. ¶ 7.

         After the plan was made, the CW was released from custody on conditions, including electronic monitoring. See Aff. ¶ 11. Through his attorney, the CW reported the plan to the Massachusetts State Police (“MSP”). See Aff. ¶ 8. The CW said he never intended to commit the murder and that he was coming forward in part to protect the witness. See id. The CW also got a message to Bradley through an intermediary that, as a result of the electronic monitoring condition, the CW would not be able to kill the trial witness. See id. In response, Bradley sent the CW a letter dated September 30, 2015, in which he urged the CW to carry out the hit if the CW could and that Bradly would pay the CW $30, 000 and more, but that if the CW could not, then Bradley would send his cousin to come pick up the ‘cell phone.’ See Aff. ¶ 11. Bradley said that he would give his cousin the CW’s number so that they could arrange the delivery of the gun. See id. Bradley also told the CW that if the CW could not deliver the gun “then call my mom [providing phone number and name] and tell her to tell me ‘that you still have the same cell phone number’ code as in you still have the ‘cell phone’ with batterys [sic].” See id.

         In early November 2015, the CW was contacted by an individual, later identified as Defendant. See Aff. ¶ 12. Defendant asked the CW for the “cell phone.” See Id. Defendant had recently been released from custody where he had been housed with Bradley. See id. The CW did not know Defendant. See id. On November 11 and 20, 2015, the CW and Defendant exchanged text messages arranging a meeting so Defendant could retrieve the gun. See Aff. ¶¶13-14. On December 3, 2015, the CW made a recorded phone call to Defendant during which the CW told Defendant that “it’s a 9 millimeter” and asked if that was “OK.” See Aff. ¶ 15. Defendant said that he could handle it, that he had handled “Barettas, Glocks” and that guns were his forte. See id. The CW asked about the murder: whether Defendant knew where to go and the witness’s name, and Defendant indicated that he did. See id.

         On December 8, 2015, under the direction of law enforcement, the CW sent Bradley a letter, writing that he had been in contact with his cousin “Cash” (the nickname Defendant provided) and asked: “So this dude Cash this is the dude? You OK with me giving him cellphone [the gun]? Cuz even even tho I aint making it snow I’m still getting my part.” See Aff. ¶ 16. Then the CW made a recorded phone call to Defendant, reporting that he had written Bradley and was waiting for confirmation from Bradley before he proceeded. See Aff. ¶ 17. Defendant expressed disappointment, indicating that he had wanted to see the CW that day and saying that his time span was short and he was “trying to get this done as soon as possible.” However, he agreed to wait. See id.

         Bradley thereafter contacted the CW through others, including by causing the girlfriend of another inmate to send the following text message: “My name is Payton I’m his cellies girlfriend they told me to text you…the ginger bread man said the he got your letter he said it’s okay to give to his cousin kush and he needs his number asap if you want give it to me and I canpass the message…sorry I’m working but no I’m Julian’s ...


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