United States v. Krug
198 F. Supp. 3d 235
W.D.N.Y.2016Background
- Defendant is a Buffalo police officer indicted in a four‑count superseding indictment: three counts charging excessive force under 18 U.S.C. § 242 (2010, 2011, 2014 incidents) and one count charging falsification of a record under 18 U.S.C. § 1519 (alleged false entry on a use‑of‑force form regarding the 2010 incident).
- The 2014 incident was video‑recorded and broadcast, which prompted an FBI inquiry and a grand jury investigation; the grand jury later returned the superseding indictment adding the older incidents.
- Defendant moved to dismiss for (1) prejudicial pre‑indictment delay as to the 2010/2011 incidents, (2) grand jury taint from filing a complaint while the grand jury was deliberating, and (3) facial insufficiency of Count 2 (§ 1519).
- Defendant also moved for a Kastigar hearing based on Garrity (compelled) statements he gave to the Buffalo PD Professional Standards Division, and moved to sever the counts into separate trials.
- The magistrate judge recommended denying the dismissal motions; the district court adopted that recommendation, granted a Kastigar hearing (to be held during and/or after trial), and reserved decision on severance pending further briefing on Rule 404(b) issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Pre‑indictment delay (2010/2011) | Govt: delay explained by late referral and timely grand jury investigation once initiated | Krug: DOJ knew earlier and waited to charge to strengthen case for 2014 incident, causing prejudice | Denied — defendant showed prejudice but not intentional/governmental bad faith; delay was reasonable exercise of prosecutorial discretion |
| Grand jury taint (filing complaint while grand jury deliberated) | Govt: filing complaints and resulting publicity permissible; no evidence grand jury was influenced | Krug: filing a complaint mid‑deliberation and media exposure compromised grand jury independence | Denied — no clear rule violated and no showing the filing substantially influenced the grand jury |
| Facial sufficiency of Count 2 (§ 1519) | Govt: indictment tracks statute and alleges false entry in use‑of‑force form related to FBI jurisdiction | Krug: flashlight is not an "impact weapon" and form not related to federal investigation | Denied — questions of fact for jury (weapon definition); § 1519 pleads sufficient nexus to FBI matter; indictment facially sufficient |
| Kastigar hearing (use/derivative use of Garrity statements) | Krug: compelled PSD statements may have tainted evidence; requests hearing to force Govt to prove independence | Govt: avers agents received personnel file and performed Garrity review before investigators saw non‑tainted material | Granted — affidavit insufficient to make the required affirmative, non‑conclusory showing; hearing ordered during and/or after trial |
| Severance (Rule 8/14) | Govt: incidents are similar (same statute §242; similar methods) and joint trial is efficient; may seek 404(b) admission if severed | Krug: risk of spillover prejudice from a vivid 2014 video and missing evidence for 2010; may want to testify on some counts but not others | Decision reserved — joinder proper under Rule 8; Rule 14 severance denied for now but will be decided closer to trial after 404(b) briefing and clearer proffers of evidence |
Key Cases Cited
- Kastigar v. United States, 406 U.S. 441 (requirement that prosecution prove evidence is independent of compelled testimony)
- Garrity v. New Jersey, 385 U.S. 493 (statements compelled under threat of removal from office are inadmissible)
- Bank of Nova Scotia v. United States, 487 U.S. 250 (indictment dismissal for grand jury error requires substantial influence or grave doubt)
- United States v. Lovasco, 431 U.S. 783 (statutes of limitations primary protection; prosecutorial delay rarely violates due process)
- United States v. Marion, 404 U.S. 307 (limits on dismissal for pre‑indictment delay absent improper prosecutorial purpose)
- Zafiro v. United States, 506 U.S. 534 (Rule 14: severance required only if joinder causes substantial, not merely possible, prejudice)
- United States v. Cornielle, 171 F.3d 748 (defendant bears heavy burden to show actual prejudice and improper purpose for delay)
- United States v. Werner, 620 F.2d 922 (interpretation of "same or similar character" for Rule 8 joinder)