United States v. Urena

989 F. Supp. 2d 253, 2013 WL 5272933
CourtDistrict Court, S.D. New York
DecidedSeptember 17, 2013
DocketNo. S5 11 Cr. 1032(PAE)
StatusPublished
Cited by4 cases

This text of 989 F. Supp. 2d 253 (United States v. Urena) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Urena, 989 F. Supp. 2d 253, 2013 WL 5272933 (S.D.N.Y. 2013).

Opinion

CORRECTED OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Three defendants in this multi-defendant racketeering case (Carlos Urena, Juan Franco, and Limet Vasquez) have moved for an order requiring the Government to reveal the redacted portions of certain recorded 911 calls that the Government has provided to them in discovery. These calls relate to a murder charged in the Indictment as a predicate act of racketeering. Dkt. 730, 754. The redactions from these recordings consist of the names, and other identifying information, of the person(s) who placed these calls. Following defendants’ initial request, the Government produced some of the withheld information, leaving in dispute only the redactions from one 911 call, identified here as call number 24. Defendants argue that 911 calls such as call number 24 are subject to the disclosure requirements of Federal Rule of Criminal Procedure 16, that call number 24 meets the requirements of Rule 16, and that the recording of call number 24 should therefore be produced in its entirety to the defense. The Government argues in response that 911 calls are not required to be produced under Rule 16, because they are instead subject to the terms of the Jencks Act, 18 U.S.C. § 3500, under which pretrial disclosure of statements by government witnesses is not required. Alternatively, the Government argues, even if such calls are covered by Rule 16, it was appropriate for the Government to withhold the name and other identifying information as to the caller of call number 24, either because the name is not material to the defense or because the interests of protecting the caller’s safety justified the withholding.

For the reasons that follow, the Court holds that call number 24 is subject to Rule 16 and is not subject to the Jencks Act, but that the sole redaction at issue, involving identifying information as to the 911 caller, was justified as a valid means of assuring the caller’s safety. Defendants’ motion is therefore denied, without prejudice to defendants’ right to pursue such [257]*257discovery later in the case upon an appropriate showing of need sufficient to outweigh the Government’s legitimate concerns about witness safety.

I. Background

The fifth Superseding Indictment (“Ind.”) in this case (Dkt. 239) was returned on February 6, 2013. Relevant here, Count One charges Urena, Franco, and Vasquez, among others, with racketeering, in violation of 18 U.S.C. § 1962(c), in connection with a gang identified as the Bronx Trinitarios Gang (“BTG”). Ind. ¶¶ 1-71. Count Two charges these same defendants with participation in a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d), again with the BTG identified as the racketeering enterprise. Id. ¶¶ 72-83. Among the predicate acts of racketeering identified in the Superseding Indictment are the conspiracy to murder, and the murder of, Ka’Shawn Phillips in Yonkers, New York, on September 3, 2005. Id. ¶¶ 9-11. Urena, Franco, and Vasquez, among others, are named in connection with those alleged racketeering acts.

By letter dated March 29, 2013, Urena’s counsel, upon learning that there were recordings of 911 calls made in relation to the Phillips murder, asked the Government to disclose those recordings. Dkt. 730. The Government then requested recordings of such calls from the Westchester County District Attorney’s Office. Dkt. 788. On May 17, 2013, Urena’s counsel, stating that he had not received these recordings, requested a conference with the Court to discuss the matter. Dkt. 730. On May 24, 2013, the Government provided to counsel for the three defendants an electronic file containing recordings of 911 calls, which it had requested and received from the Westchester County District Attorney’s Office. Dkt. 755, 788, 811. The file contained recordings of 26 phone calls, which the Government represents are all the calls it received. Dkt. 754. From these calls, however, the Government had redacted names and other personal identifying information as to “a few of the callers.” Dkt. 788.

On June 3, 2013, the three defendants, in' a joint letter submitted by Urena’s counsel, objected to these redactions. They argued that the call was required to be produced, in its entirety, under Rule 16, and asked the Court to order the Government to promptly provide an unredacted copy of all the 911 calls. Dkt..754.

On June 10, 2013, the Government responded. It argued that Rule 16 does not require it to produce 911 calls to defense counsel at all and that it had voluntarily produced the recordings of the various 911 calls to defense counsel, in order to assist them in their preparation for trial. Dkt. 755. Instead, the Government argued, the Jencks Act, 18 U.S.C. § 3500, governs production of witness statements, and production of Jencks Act material is not required until the witness’s testimony at trial. Id. Further, the Government noted, in cases involving heightened safety concerns, it has waited until the evening before or the morning of the witness’s testimony to disclose the name of a civilian witness, and it cited cases in which courts in .this District have approved this procedure as consistent with the Jencks Act. Id. In any event, the Government stated, the dispute in this case had narrowed: It had now produced additional caller identification information. This production left only one caller’s identifying information redacted from call number 24. Id.; see also Dkt. 788.

On June 20, 2013, defense counsel responded and requested a conference, Dkt. 762, which the Court held on July 1, 2013. At the end of the conference, the Court asked the parties to submit letter briefs addressing whether production of the 911 [258]*258calls was required by Rule 16. Both parties submitted letters addressing that issue. Dkt. 786 (defense letter), 788 (Government letter). Defendants’ letter added that defendants also requested unredacted portions of the “sprint runs,” which are short summaries of the 911 calls. The Government had produced these sprint runs to defense counsel in January 2013 but redacted the same identifying information. Dkt. 786.

On August 22, 2013, the Court directed the Government to provide it with a tape recording of call number 24, the remaining redacted call. The Government has aptly described that call as follows: “The caller, in near hysterics, tells the 911 operator that she is pregnant, that there is a hoard [sic] of men gathering outside her basement apartment, and that she believes that they are going to harm her and her family members.” Dkt. 788. The call was placed about 15 minutes after the Phillips murder. The identifying information redacted from the call reflects that the address given by the caller was near the site of the murder. The caller reports that the men outside her window say that they just killed a man on her block.

II. Discussion

Federal Rule of Criminal Procedure Rule 16

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Cite This Page — Counsel Stack

Bluebook (online)
989 F. Supp. 2d 253, 2013 WL 5272933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-urena-nysd-2013.