168 F. Supp. 3d 541
W.D.N.Y.2016Background
- Superseding indictment charges LRG-P gang members with a RICO conspiracy (Count 1), a narcotics conspiracy (Count 2), and maintaining a drug-involved premises (Count 21); Nance is charged in Counts 1, 2, and 21.
- Allegations span ~2009–Jan 23, 2012 and include maintaining “trap houses,” narcotics distribution, and planning/committing violent acts.
- Nance was subject to incarceration, halfway house placement, house arrest, and curfew at various times during the alleged conspiracy period and seeks particularization of when he allegedly joined the enterprise.
- Nance filed pretrial motions seeking dismissal, a bill of particulars, discovery (Rule 16/Jencks/Brady/404(b)), informant identities, suppression of evidence, severance, and to join co-defendants’ motions.
- The government represents Rule 16 discovery is complete and will produce Jencks/Giglio material one week before trial; many co-defendants’ discovery-related motions were previously addressed in adopted magistrate recommendations.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Nance) | Held |
|---|---|---|---|
| Motion to dismiss Counts 1 & 2 | Indictment is legally sufficient; prior R&R denying dismissal stands | Joined co-defendants’ motions to dismiss for vagueness/facial insufficiency but offered no new arguments | Denied (previous denials adopted; Nance raised no new grounds) |
| Bill of particulars — date of agreement | Indictment + Rule 16 discovery provide sufficient notice; extensive particulars not required | Seeks particularization of the date he first agreed to join RICO conspiracy given periods of confinement/curfew | Granted in part: government must state the date Nance allegedly first agreed to the enterprise; other particularization denied |
| Rule 16 / Jencks / Brady / 404(b) discovery timing | Rule 16 production complete; Jencks/Giglio to be produced one week before trial; government will comply with Brady obligations | Requests immediate production of Jencks, Brady, 404(b) and other materials; seeks broad previews | Rule 16 motion denied as moot; Jencks/Brady/404(b) requests denied without prejudice or as premature; government reminded of continuing obligations |
| Disclosure of informant identities | Asserts qualified privilege to protect informants; will disclose if relevance/necessity shown | Seeks identities and information to investigate biases/benefits of informants | Denied (Nance failed to show informant testimony is material/essential to defense) |
| Suppression (wiretaps, searches) | Prior R&R denied Title III suppression; no record of claimed home searches for government to address | Joins co-defendants’ Title III suppression and seeks suppression of two home searches (no affidavit/standing provided) | Denied (Title III suppression previously denied; home-search claim unsupported and no standing shown) |
| Severance | Joint trial is appropriate when defendants are properly joined; evidence admissible against all may cause only expected spillover | Argues spillover prejudice because he allegedly did not participate in violent acts; fears jury will conflate him with violent co-defendants | Denied (no specific trial right shown; predicate acts relevant to RICO may be admissible against all defendants) |
| Grand jury instructions & minutes | Grand jury secrecy protects instructions; disclosure rarely permitted absent specific misconduct allegations | Seeks legal instructions provided to grand jury and summary/hearsay usage statement | Denied (no particularized need shown) |
Key Cases Cited
- Salinas v. United States, 522 U.S. 52 (RICO conspiracy does not require an overt act)
- United States v. Davidoff, 845 F.2d 1151 (heightened bill-of-particulars concerns in RICO cases)
- United States v. Walsh, 194 F.3d 37 (bill of particulars not required where other disclosures are sufficient)
- United States v. Torres, 901 F.2d 205 (standards for bills of particulars and grand jury disclosure)
- Bortnovsky v. United States, 820 F.2d 572 (purpose of bill of particulars to avoid unfair surprise/double jeopardy)
- Zafiro v. United States, 506 U.S. 534 (severance standard; strong preference for joint trials)
- In re United States (Coppa), 267 F.3d 132 (timing of Brady disclosure: "in time for effective use")
- Roviaro v. United States, 353 U.S. 53 (informant identity privilege is qualified; balancing test)
- Bourjaily v. United States, 483 U.S. 171 (co-conspirator statements admissibility framework)
- Kyles v. Whitley, 514 U.S. 419 (prosecutor's Brady duty to learn of favorable evidence)
- United States v. Cain, 671 F.3d 271 (RICO conspiracy knowledge standards)