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United States v. Marte

United States District Court, D. Massachusetts

February 20, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
[1] ALBERTO MARTE and [8] JUAN PEREZ, Defendants.

          MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION TO COMPEL DISCOVERY (DKT. NOS. 341 [PEREZ] & 347 [MARTE])

          KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Defendant Alberto Marte is charged in a second superseding indictment with one count of conspiring to distribute heroin and to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846, two counts of aiding and abetting distribution of heroin and possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2, four counts of distribution of heroin and possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841, one count of conspiring to distribute fentanyl and to possess fentanyl with intent to distribute, in violation of 21 U.S.C. § 846, and one count of possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924 (Dkt. No. 300). The same indictment charges Defendant Juan Perez with one count of conspiring to distribute heroin and to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846 (id.).

         Defendants made twenty-one discovery requests by their July 11, 2017 letter (Dkt. No. 326 at 2). See LR 116.3. The government responded by letter on September 26, 2017 (Dkt. No. 326).[1] Id. Defendant Perez rejoined with a motion to compel production of material in response to five of his original requests (Dkt. Nos. 341, 342). The court allowed Defendant Marte's motion to join Defendant Perez's motion to compel (Dkt. No. 347), and the government responded to Defendants' motion (Dkt. No. 353). After hearing the parties' arguments on December 5, 2017 and considering the parties' submissions, the court ordered the government to provide factual information regarding whether or not the United States Drug Enforcement Administration ("DEA") and law enforcement agents in the Dominican Republic were engaged in a joint investigation when Defendant Marte's communications were intercepted by Dominican authorities pursuant to a Dominican judge's order(s) (Dkt. No. 394). On February 14, 2018, the government responded to the court's order by providing the affidavit of DEA Special Agent ("SA") John Barron (Dkt. Nos. 414 and 414-1). For the reasons set forth below, the court DENIES Defendants' motion to compel.

         II. Background

         Defendants' charges resulted from their alleged involvement in a large-scale narcotics trafficking organization in Springfield, Massachusetts. The Springfield Resident Office ("SRO") of the DEA undertook an investigation "to determine how [the Defendants' organization] operated, who supplied [it with] heroin . . ., and how [it] distributed heroin in Western Massachusetts" (Dkt. No. 353 at 1-2). Based on evidence that the SRO obtained from a confidential source who made controlled purchases of heroin, from court-authorized interceptions of wire and electronic communications occurring over the cellular telephones of members of the organization, and from searches conducted pursuant to warrants, the government charged nineteen alleged participants and recovered more than six kilograms of heroin, two kilograms of fentanyl, and "several" firearms (id.).

         The government represents that "[d]uring the course of the SRO's investigation, agents learned that communications of [D]efendant . . . Marte were intercepted on a judicially authorized wiretap by authorities of the Dominican Republic in that country" ("Dominican wiretap") (id. at 2). According to the government, these communications showed that a source of Defendant Marte's heroin "operated" in the Dominican Republic (id.). In addition, agents learned that Defendant Marte made frequent trips to Bronx, New York to purchase heroin (id.). "Consequently agents of the SRO frequently passed information to their counterparts working in the New York Field Division of the DEA [who] utilized that information in their investigations of various drug trafficking organizations operating in their district" (id.).

         In the government's response to Defendants' motion to compel, it represents that it has provided Defendants with the following: "more than 3, 000 pages of discovery and recordings in addition to the complete recordings and summaries of all interceptions made on court authorized wiretaps. These documents include reports written by agents that detail the investigation from its inception to its takedown" (id.).

         III. Discussion

         A. Legal Standards

         Defendants cite Fed. R. Crim. P. 16(a)(1)(E), Brady v. Maryland, 373 U.S. 83 (1963), and LR 116.2 to support their motion (Dkt. No. 342 at 2). Rule 16(a)(1)(E) says:

[u]pon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense . . . .

Fed. R. Crim. P. 16(a)(1)(E). "The defendant, as the moving party, bears the burden of showing materiality." United States v. Goris, 876 F.3d 40, 44 (1st Cir. 2017). The First Circuit recently indicated that "a showing of materiality requires 'some indication' that pretrial disclosure of the information sought 'would . . . enable[] the defendant significantly to alter the quantum of proof in his favor.'" Id. at 45 (quoting United States v. Ross, 511 F.2d 757, 762 (5th Cir. 1975)).

         "In 1963, Brady v. Maryland, 373 U.S. at 87, clearly established that the government has a duty to disclose to a defendant exculpatory evidence that is material to guilt or punishment." Ferrara v. United States, 384 F.Supp.2d 384, 397 (D. Mass. 2005), aff'd, 456 F.3d 278 (1st ...


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