United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION
TO COMPEL DISCOVERY (DKT. NOS. 341 [PEREZ] & 347
KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE.
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.).
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). 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
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
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"
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
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)).
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 ...