United States District Court, D. Massachusetts
ORDER ON DEFENDANT’S MOTION TO COMPEL
H. Hennessy United States Magistrate Judge
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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 ...