Krug Complaint

Case 1:15-cr-00157-RJA-HKS Document 17 Filed 01/14/16 Page 1 of 37
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK
THE UNITED STATES OF AMERICA,
v.
15-CR-157-A
COREY KRUG,
Defendant.
GOVERNMENT'S RESPONSE TO DEFENDANT=S

PRETRIAL MOTIONS AND GOVERNMENT=S
CROSS MOTION FOR DISCOVERY
THE UNITED STATES OF AMERICA, by and through its attorneys, William J.
Hochul, Jr., United States Attorney for the Western District of New York, and John E.
Rogowski, Assistant United States Attorney, hereby responds to the pretrial motions of
defendant COREY KRUG (Dk. # 14 filed December 7, 2015) for various forms of relief.
PRELIMINARY STATEMENT
The defendant, employed as a police officer by the City of Buffalo, is charged in a
four-count Superseding Indictment with violations of Title 18, United States Code, Sections
242 and 1519. Counts 1, 3, and 4 allege violations of Section 242 in that the defendant,
while acting under color of law, deprived certain individuals of their constitutional rights to
be free from the use of unreasonable and excessive force and to due process, and in doing so
caused physical injuries to those individuals. Count 2 alleges that the defendant knowingly
concealed, covered up, and falsified and made a false entry in a Buffalo Police Department
Use of Force Report P-1374, reflecting his actions in relation to the use of physical force
described in Count 1 of Indictment, with the intent to impede, obstruct, and influence the
investigation and proper administration of a matter within the jurisdiction of a department
and agency of the United States.
The government submits this Memorandum in opposition to the defendants motions

and presents a cross motion for discovery. For the reasons stated in this memorandum the
motions of the defendants have no merit and should be denied.
PROCEDURAL BACKGROUND
The defendant was first charged in a Criminal Complaint filed on August 12, 2015.
The complaint alleged a violation of Title 18, United States Code, Section 242, relating to
events which took place on November 27, 2014. Thereafter, on August 27, 2014, a Grand
Jury returned a two-count Indictment which alleged violations of Title 18, United States
Code, Sections 242 and 1519, relating to events which took place on August 29, 2010.
Finally, on September 3, 2015, the same Grand Jury returned the Superseding Indictment
which is now before the Court. The Superseding Indict relates to the events of August 29,
2010 (Counts 1 and 2) that were the basis of the original Indictment; events of February 4,
2011 (Count 3); and the events of November 27, 2014 (Count 4) that were the basis of the
Criminal Complaint .
FACTUAL BACKGROUND
At all times relevant to the Indictment, the defendant was employed as a police officer
by the City of Buffalo, having been appointed to the force in July 2002. At the time of the
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incidents alleged in the Superseding Indictment, the defendant was assigned to the Buffalo
Municipal Housing Authority Unit (BMHAU). The officers assigned to the BMHAU
respond to calls throughout the City of Buffalo as needed.
Events of August 29, 2010 (Counts 1 and 2)

On August 29, 2010, at approximately 10:30 pm, BPD broadcast a radio call of a
possible domestic disturbance involving a male (tee shirt and shorts) waving a gun at a female
(white shirt and skirt) in the vicinity of 52 Langmeyer. Several BPD police cars responded to
the call and proceeded to Langmeyer. When the BPD officers arrived on the scene, M.W., a
male matching the description of the male described in the radio call, was standing in front of
46 Langmeyer conversing with a female. At the time, M.W. was working two jobs (ECMC
and BryLin Hospitals), possessed a firearms license, and had no criminal record. M.W.
legally possessed a gun which was concealed under his shirt.
One of the first BPD officers on the scene, Officer Melinda Jones, approached M.W.
with her gun drawn and yelling words to the effect that M.W. put his hands up in the air. As
other BPD officers approached M.W., Officers Thomas Herbert and Joseph Paszkiewicz
grabbed M.W. and placed against a car. Officer Herbert saw the gun on M.W. person and,
after announcing he saw the gun, he took possession of the gun. M.W. was handcuffed. At
some point during the encounter, KRUG struck M.W. in the head with his flashlight. Some
of the officers on the scene observed KRUG strike M.W. and observed that Worthy was
bleeding. At least two civilians observed KRUG strike M.W.
KRUG and his partner, BPD Officer William Macy then took M.W. to ECMC where
M.W. received 3 staples in his scalp. Worthy was charged with Criminal Possession of a
Weapon 2nd, Menacing of a Police Officer, Menacing 2nd, and Obstructing Governmental
Administration 2nd.
The charges were dismissed in Buffalo City Court for direct
presentation to a Grand Jury. The Grand Jury issued a no bill on February 5, 2011. M.W.
has a civil suit pending against the City of Buffalo.
KRUG filed a Use of Force Report P-1374 with the BPD. However, KRUG claimed
on the form to only having made physical contact with M.F., and checked no in the
question asking if used an impact weapon to strike the individual.
Following the filing of a complaint by M.W with the BPD, BPD conducted a 50-h
hearing at which M.W. testified. In addition, members of the BPD who were present at the
sight of M.W. incident also testified.
Events of February 4, 2011 (Count 3)

On February 4, 2011, at approximately 11:04 pm, BPD broadcast a radio call of a
suspicious person in the vicinity of 68 Bissell in the City of Buffalo. Several police units
responded. After the police units arrived and were located on Bissell avenue, D.R. was
walking north on Bissell, from Walden, towards his residence at 79 Bissell. D.R. had
completed his work shift at a local steak shop. D.R., who was listening to music with ear
buds, observed police cars in the area as he continued walking towards his residence. After
observing two police cars pass by him, one car backed up and KRUG, the sole police officer
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in the car, called out to D.R. KRUG then got out of the vehicle and approached D.R.
KRUG placed D.R. against the patrol car, patted him down, and found a diet pill on D.R.
KRUG then kicked D.R.s legs out from under D.R. and D.R. fell to the ground. While
D.R. was on the ground, the KRUG put his knee in D.R.s chest and hit D.R. once with his
flashlight in the area of D.R.s right eye which caused him to bleed. (There is a scar).
Officer KRUG handcuffed D.R. and placed D.R. in the patrol car. There were no other
witnesses to the event.
BPD Officer William Rezabek, KRUGS partner who KRUG had dropped off a few
blocks away prior to Krugs encounter with D.R., arrived on the scene of the encounter after
D.R. had been hand-cuffed and placed in the police vehicle.
KRUG told Officer Rezabek
that D.R. had been combative and that he, KRUG, had hit D.R. on the head. KRUG and
Officer Rezabek transported D.R. downtown to police headquarters where D.R. was charged
with criminal offenses, processed and held overnight. After D.R. was released the following
morning, he went to the emergency room for treatment. He was given pain meds but did not
receive any stiches.
Despite admitting to having struck D.R. in the head, KRUG did not file a Use of
Force Report P-1374 with the BPD. D.R. was charged with criminal possession of a
controlled substance and obstructing governmental administration.
The charges were
dismissed at the defendants first court appearance. D.R. filed a lawsuit against the city and
received a settlement.
Following the filing of a complaint by D.R. with the BPD, BPD conducted a 50-h
hearing at which D.R. testified.
Events of November 27, 2015 (Count 4)

November 27, 2015, was Thanksgiving Day.
The evening of the night before
Thanksgiving and the early morning hours of Thanksgiving Day is often referred to as the
busiest party night of the year in Buffalo. This is especially true in the Chippewa area of
downtown Buffalos entertainment district. Because of the high volume of bar customers in
the area, the Buffalo Police Department (BPD) employs officers from other districts to
patrol the entertainment district which is located in the B district. Defendant Corey
KRUG was one of several BPD officers who opted to work that assignment.
In the early morning of November 27, a bar patron identified as D.F. was banished
from the nightclub Indulge following a scuffle with another patron. The other patron was
also escorted out of Indulge. Both individuals were with friends. After exiting Indulge,
several individuals associated with both ejected patrons congregated on Chippewa Street in
the vicinity of Indulge.
Several BPD officers, including KRUG interacted with the
individuals, including D.F., and the crowd dispersed without further altercation after one
officer discharged pepper spray.
The event on the street was recorded by a video
photographer for the WKBW new department.
Shortly thereafter, the same video photographer recorded KRUG as KRUG walked at
fast pace east on Chippewa towards Pearl Street. As KRUG arrived at a parking lot at the
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northwest Corner of Chippewa and Pearl, he encountered D.F., who was leaning against a
vehicle with another individual nearby. KRUG is then video and audio recorded grabbing
D.F., throwing D.F. against a car as D.F. is heard saying "I didn't do nothing." KRUG is
recorded pushing D.F. to the ground and placing one knee on D.F. chest. KRUG is seen
standing up as two other uniformed officers appeared to attempt to intervene. With the two
other officers next to KRUG, KRUG proceeded to strike D.F. four or five times with his
night stick as he was yelling at D.F. to "get the fuck up."
A third officer is recorded arriving next to KRUG and is heard telling KRUG to
"relax." The recording also captures one of the officers alerting KRUG that he was "on
fucking camera." The recording shows KRUG allowing D.F. to get back on his feet and
telling D.F. to "walk." At no time during the recorded incident did D.F. appear to resist or
strike KRUG other than to use his arms to deflect KRUG'S strikes. KRUG did not arrest
D.F. Despite clearly using his night stick to strike D.F., KRUG did not file a Use of Force
Report P-1374 with the BPD.
There were several BPD officers on the scene who witnessed portions of KRUGs
encounter with D.F.
VOLUNTARY DISCOVERY
The government has provided the defendant with significant voluntary discovery.
The government provided a copy of the defendant=s personnel file which includes all reports
and complaints relating to KRUGs use of force throughout his career, including numerous
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Use of Force report forms filed by the defendant 1.
The defendant was provided with all
the paperwork maintained by the BPD concerning the arrests of the three individuals
referenced in the superseding Indictment. In addition, the defense was provided with the
civil complaints and EBTs filed in connection with Counts 1, 2, and 3, along with medical
reports in connection with Counts 1 and 2. The government turned over all the transcripts in
its possession of the 50-h hearings conducted in connection with events in the Superseding
Indictment. The defense was provided with the videos, raw and broadcast, taken of the
events relative to Count 4, as well as photos depicting the injuries to D.F.
THE DEFENDANT=S MOTIONS

The defendant has filed pretrial motions seeking various forms of relief including
dismissal of the Indictment, suppression of statements, and additional discovery (including
disclosure of witness statements, Rule 404(b) evidence, Brady material, preservation of agent
notes). The government=s responses to the defendant=s requests are set forth below.
I. Motion to dismiss the Superseding Indictment

a. Pre-Indictment Delay
The defendant claims that the Superseding Indictment should be dismissed because
Counts 1, 2 and 3 occurred more than 4 years prior to the return of the Superseding
In reviewing the discovery material provided to the defendant, the government observed
that a number of the 2 page Use of Force forms provided included only the first page of the
form. The government is in the process of obtaining a new set of copies containing both
sides and will forward to the defense upon receipt.
8
1
Indictment and that the governments delay in seeking the Indictment was a deliberate
attempt to gain an unfair tactical advantage over the defendant.
Relevant Factual background

The FBI began its investigation of the defendant only after the publicity surrounding
the November 27, 2014, events alleged in Count IV of the Superseding Indictment. The
video footage of KRUG striking D.F. was broadcast on local television newscasts. In
December 2014, the Buffalo Police Department referred the matter to the FBI for possible
investigation. The FBI undertook an investigation of KRUG and presented the matter to
United States Attorneys Office in December 2014. Following review by the USAO, the
Grand Jury investigation commenced with the issuance of subpoenas. In conducting their
investigation, FBI agents reviewed KRUGS BPD personnel file. The investigating agents
found numerous civilian complaints against KRUG which alleged excessive force. While
most of the complaints involved events which took place outside the five year statute of
limitations, the agents reviewed the incidents involving M.W. and D.R., and decided to
conduct further investigation of those two incidents along with the November 2014 incident
with D.F. The investigation involved identifying and interviewing witnesses to all three
events.
The Grand Jury returned the original Indictment on August 28, 2015, just prior to the
expiration of the statute of limitations for the August 29, 2010, incident that was the subject of
the Indictment. Just one week later, on September 3, the Superseding Indictment was
returned.
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The Law
[T]he statute of limitations is the primary guarantee against bringing overly stale
criminal charges.
A set period within which prosecution must be initiated safeguards
citizens from standing trial on charges whose underlying facts have grown dim with age, and
from having to face possible punishment because of acts committed in the distant past.
Accordingly, [the Second Circuit has] held that timely brought criminal prosecutions are only
rarely dismissed. United States v. Cornielle, 171 F.3d 748, 751-52 (2d Cir. 1999) (citations
and internal quotation marks omitted). Prosecutions commenced within the statute of
limitations may be dismissed on Fifth Amendment Due Process grounds when the
defendant can prove that the Government's delay in bringing the indictment was a deliberate
device to gain an advantage over him and that it caused him actual prejudice in presenting his
defense. United States v. Gouveia, 467 U.S. 180, 192, citing United States v. Lovasco, 431
U.S. 783, 788-89 (1977), and United States v. Marion, 404 U.S. at 322, 324. In order to
merit dismissal of an indictment brought within the applicable statute of limitations, the
defendant must demonstrate that pre-indictment delay cause[d] substantial prejudice to the
defendant's ability to present his defense and the delay was an intentional device to gain [a]
tactical advantage over the accused. United States v. Ullah, 2005 WL 629487 at *17
(W.D.N.Y. 2005 ) (Foschio, M.J.).
[W]here delay prejudices the presentation of a defense and is engaged in for an

improper purpose it violates the Due Process Clause because such conduct departs from
fundamental notions of fair play. Cornielle, 171 F.3d at 752, quoting United States v.
10
Lovasco, 431 U.S. at 795. A defendant bears a heavy burden of proving that he suffered
actual prejudice because of the alleged pre-indictment delay and that such delay was a course
intentionally pursued by the government for an improper purpose. Cornielle, 171 F.3d at
752, citing United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir. 1990) and United States v.
Hoo, 825 F.2d 667,671 (2d Cir. 1987).
Argument
In the instant case, the government did not deliberately delay in bringing an
Indictment against the defendant. While two of the events being investigated were over four
years old, the actual FBI and Grand Jury investigations were completed in approximately 8
months after being initiated. The government was not responsible for the time period
between the 2010 and 2011 events and the commencement of the investigations. Until the
matter was referred to the USAO in December 2014, the government had no knowledge of
the events. Thus, the government did not intentionally delay the return of the indictment as
to the in order to gain an unfair tactical advantage. While the defense claims that evidence,
including possible eye witnesses may have been lost, and witness recollection diminished, the
government suffered the same, if not greater, loss. The defendant, because of the BPD 50-h
hearings resulting from the complaints filed as to both the 2010 and 2011 incidents, as well as
the filing of civil law suits, was aware of the seriousness of the matters and in a position to
investigate and preserve evidence long before the government even knew of the incidents.
The defendant has failed to meet his heavy burden of proving that he suffered actual
prejudice because of the alleged pre-indictment delay and that such delay was a course
11
intentionally pursued by the government for an improper purpose. Thus, the defendants
motion to dismiss must be denied.
b. Grand Jury taint.

The defendant asserts that filing of the August 12, 2015, complaint against the
defendant improperly tainted the Grand Jury as the Grand Jury conducted its investigation of
the defendant. The defendants claim is unsubstantiated, lacks merit and should be denied.
The Law
Grand jury proceedings carry a presumption of regularity. Hamling v. United States,
418 U.S. 87, 139 n. 23 (1974); see also United States v. Ciambrone, 601 F.2d 616, 623 (2d
Cir.1979) (quoting Costello v. United States, 350 U.S. 359, 363 (1956); United States v.
Torres, 901 F.2d 205, 232 (2d Cir. 1990). Furthermore, as a general matter, a district court
may not dismiss an indictment for errors in grand jury proceedings unless such errors
prejudiced the defendants. Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988).
The high profile case of United States v. Silver, 103 F.Supp.3d 370 (S.D.N.Y. 2015) is
almost identical to case at bar. During the period immediately prior to defendant Silver
being indicted, the USAO for the Southern District of New York was conducting a much
publicized investigation into public corruption within the highest level of New York State
government. Silver, the long-time Speaker of the New York State Assembly, was charged
with corruption offenses in a Criminal Complaint on January 21, 2015. Following Silvers
surrender on the complaint, the Unites States Attorney not only held a press conference and
12
issued a press release, but over the next few days also published messages on Twitter, gave a
much publicized speech at a New York City law school, and was interviewed on national
television news programs. On February 19, 2015, less than a month after the Criminal
Complaint, a Grand Jury returned an indictment against Silver.
Shortly after the Silver indictment was returned, the defendant claimed the publicity in
the case caused by the filing of the Complaint and subsequent press activity unfairly tainted
the grand jury, and moved to dismiss the indictment, or at least have the Court make an
inquiry of the grand jury as to the possibility it had been improperly influenced. The District
Court characterized the defendants argument as follows:
The Defendant argues that the U.S. Attorney improperly and substantially
influenced the grand jury in several ways. First, the Defendant complains that the
Government improperly initiated this case by means of its 35page Complaint, rather
than by indictment, and claims the Government did so solely for the purpose of
maximiz[ing] exposure and prejudicing the Defendant before the grand jury. See
Mot. at 18. Second, the Defendant asserts that the Government improperly leaked
news of the Defendant's arrest to the press hours before the Complaint was unsealed or
the arrest was made. Id. Third, the Defendant claims that the Government
orchestrated the arrest and arraignment to maximize the opportunity for a photo
op to enhance the perp walk effect. Id. at 4, 18. Finally, the Defendant argues
that the U.S. Attorney created a media circus around Silver's arrest through his
improper and prejudicial comments during the press conference, New York Law
School speech and MSNBC interview. Id. at 11.
Silver at 377-78.
The District Court quickly disposed of the issue surrounding the filing of a complaint
prior to indictment, holding that
the Government has discretion to proceed via complaint pursuant to the Federal Rules
of Criminal Procedure; although the Complaint filed against Silver may have included
more information than was absolutely necessary to establish probable cause the
Defendant does not argue that the Complaint itself was improper or the source of any
prejudice.
13
Silver, at 377.
Although the District Court was somewhat more troubled by the United States
Attorneys speech and press interviews, it nevertheless denied the defendants motion. The
Court first noted that dismissal of an indictment because of a defect in the grand jury
proceedings is a drastic remedy that is rarely used. Silver at 376, citing United States v.
Martinez, No. 10CR233S (1)(2)(4), 2014 WL 1794934, at *2 (W.D.N.Y. May 6, 2014)
(citing United States v. Dyman, 739 F.2d 762, 768 (2d Cir.1984)); see also United States v.
Fields, 592 F.2d 638, 647 (2d Cir.1978) (noting that dismissal of an indictment is an extreme
sanction).
The Court went on to find:
Significantly, while the Defendant seeks to distinguish the relevant precedent, he is
unable to cite a single case where a court has taken the extreme step of dismissing an
indictment solely based on pre-indictment publicity, whether instigated by the
prosecutor or simply derived from the media at large. See Myers, 510 F.Supp. at 325
([W]hile the issue has been raised innumerable times, defendants have been unable to
point to a final decision in a single case where an indictment has been dismissed upon
the ground that the grand jury was prejudiced by pre-trial publicity. (citing cases)); see
also In re Grand Jury Investigation, No. 87CV0163, 1987 WL 8073, at *7 n. 4
(E.D.N.Y. Feb. 23, 1987) (noting the absence of any case in which a court exercised
its supervisory powers to dismiss an indictment solely due to pre-indictment publicity
(citation omitted)). While dismissal might be appropriate in instances where the
defendant can show a history of prosecutorial misconduct, spanning several cases,
that is so systematic and pervasive as to raise a substantial and serious question about
the fundamental fairness of the process which resulted in the indictment, the Court
finds that standard has not been met here. See Bank of Nova Scotia, 487 U.S. at 259, 108
S.Ct. 2369.
Silver, at 380-81.
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Argument
The governments filing of a criminal complaint prior to seeking an indictment is a
most common occurrence. The defendants argument concerning grand jury taint in this
case suggests that the government be prohibited from filing a criminal complaint whenever it
contemplates seeking an indictment down the road. As noted above, the Silver case makes
clear that the [g]overnment has discretion to proceed via complaint pursuant to the Federal
Rules of Criminal Procedure. Silver at 377. The defendant merely makes the unsupported
claim that the filing of a complaint in this case influenced the grand jury. (Defense Motion
p. 11). Based on the law cited above, the defendants motion to dismiss based on grand jury
taint should be denied.
c.
Count 2 is not facially insufficient
The defendant argues that Count 2 of Superseding Indictment is facially insufficient

because it fails to allege that the defendants actions (1) related only to the BPD and not
impede a matter within the jurisdiction of any department or agency of the United States; and
(2) that the defendants denial of the use of an impact weapon on the Use of Force Report
P-1374 was not a false statement insofar as a flashlight is not an impact weapon. For the
reasons set forth below, the defendants arguments lack merit and should be denied.
The Law
Pursuant to Fed.R.Crim.P. 7(c)(1), an indictment Amust be a plain, concise, and
definite written statement of the essential facts constituting the offense charged ....@ In order
to comply with the pleading requirements of Fed.R.Crim.P. 7(c)(1), Aan indictment need do
15
little more than to track the language of the statute charged and state the time and place (in
approximate terms) of the alleged crime.@ United States v. Stavroulakis, 952 F.2d 686, 693
(2d Cir. 1992), quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975). An
indictment Amust be read to include facts which are necessarily implied by the specific
allegations made.@ Id., quoting United States v. Silverman, 430 F.2d 106, 111 (2d Cir.
1970). Courts have found that Aan indictment is sufficient if it, first, contains the elements of
the offense charged and fairly informs a defendant of the charge against which he must
defend, and, second, enables him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.@ Hamling v. United States, 418 U.S. 87, 117 (1974).
The elements of 18 U.S.C. 1519 are: (1) that the defendant altered, falsified, destroyed,
mutilated, concealed, covered up, made a false entry in any record, document, or object that
can be used to record or preserve information; (2) the defendant acted knowingly; (3) that the
defendant acted with the intent to impede, obstruct or influence an investigation or a matter
within the jurisdiction of, or in relation to or in contemplation of, a department or agency of
the United States Government. 2 L. Sand, et al., Modern Federal Jury Instructions-Criminal
(2015), 46.13. See also United States v. Kernell, 667 F.3d 746 (6th Cir. 2012).
Using the standard articulated above, there is no question that Count 2 of the
Superseding Indictment satisfies the pleading requirement. A plain reading of the count
unequivocally sets forth the required elements of the charge in that the defendant did: (1)
conceal, cover up, falsify and make a false entry in a record and document, specifically a
Buffalo Police Department Use of Force Report P-1374; (2) knowingly; and (3) in
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relation to and in contemplation of a matter within the jurisdiction of a department and

agency of the United States, and with the intent to impede, obstruct, and influence the
investigation and proper administration of the matter. The Indictment identifies the date
on which the defendant allegedly committed the crime, provides details regarding the
defendants conduct, and specifies that the Federal Bureau of Investigation was an agency of
the United States Department of Justice and responsible for investigating the deprivation of
rights secured and protected by the Constitution and laws of the United States by persons
acting under color of law. As such, the Indictment is facially valid, and states a cognizable
offense.
The defendant claims that a false statement in a Buffalo Police Report cannot
constitute a violation of 18 U.S.C. 1519. The defendant is wrong. In United States v. Gray,
642 F.3d 371 (2nd Cir. 2011), the Second Circuit rejected the proposition championed by
KRUG, holding that:
by the plain terms of 1519, knowledge of a pending federal investigation or
proceeding is not an element of the obstruction crime. See United States v. Ionia Mgmt.
S.A., 526 F.Supp.2d 319, 329 (D.Conn.2007) (In comparison to other obstruction
statutes, 1519 by its terms does not require the defendant to be aware of a federal
proceeding, or even that a proceeding be pending.).
Gray, at 378.
In reaching its decision in Gray, the Second Circuit quoted from the Senate Record:
Section 1519 is meant to apply broadly to any acts to destroy or fabricate physical
evidence so long as they are done with the intent to obstruct, impede or influence the
investigation or proper administration of any matter, and such matter is within the
jurisdiction of an agency of the United States, or such acts done either in relation to or
in contemplation of such a matter or investigation. This statute is specifically meant not to
include any technical requirement, which some courts have read into other obstruction of justice
statutes, to tie the obstructive conduct to a pending or imminent proceeding or matter. It is also
sufficient that the act is done in contemplation of or in relation to a matter or
17
investigation. It is also meant to do away with the distinctions, which some courts have read
into obstruction statutes, between court proceedings, investigations, regulatory or administrative
proceedings (whether formal or not), and less formal government inquiries, regardless of their
title. Destroying or falsifying documents to obstruct any of these types of matters or
investigations, which in fact are proved to be within the jurisdiction of any federal
agency are covered by this statute. S.Rep. No. 107146, at 1415 (2002), 2002 WL
863249, at *1213 (emphases added) (footnotes omitted).
Gray, at 377.
The defendant also argues that language in Count 2 relating to the defendants use of a
flashlight as an impact weapon renders the Count facially insufficient because a flashlight is
not an impact weapon. Again, the defendants argument is without merit. Websters
Dictionary defines a weapon as something (as a club, knife, or gun) used to injure, defeat, or
destroy. A large flashlight, as possessed and used by KRUG to strike M.W., is certainly an
weapon used to impact, or forcibly strike an individual. In any event, whether the
flashlight as wielded by KRUG constituted an impact weapon, is a question of fact for the
jury to determine and does constitute a legal issue sufficient to sustain a motion to dismiss at
this stage of the proceedings.
II. Severance
The defendant seeks to have Counts 3 and 4 severed from each other and from Count
1 and claiming that he would suffer severe prejudice if all the counts were not severed.
The defendant does not contest the joint trial of Counts 1 and 2.
Although the government
believes that the decision to severe is best left to the trial court and would urge such deference
in this case, it will set forth its argument below as to why severance should be denied.
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The Law
Federal Rule of Criminal Procedure 8(a) provides: The indictment or information
may charge a defendant in separate counts with two or more offenses if the offenses charged
whether felonies or misdemeanors or both are of the same or similar character or are based
on the same act or transaction or are connected with or constitute parts of a common scheme
or plan. A>Similar= charges include those that are >somewhat alike,= or those >having a general
likeness= to each other. United States v. Riviera, 546 F.3d 245, 253 (2d Cir. 2008), quoting
United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980). Additionally, counts Athat have a
>sufficient logical connection= to each other can be tried together, as can those >where the same
evidence may be used to prove each count.=@ Riviera, 546 F.3d at 253 (internal citations
omitted).
The Second Circuit has recognized the important policy underlying Rule 8(a),
namely, that of trial convenience and economy of judicial and prosecutorial
resourcesconsiderations of particular weight when the Government and the courts have
been placed under strict mandate to expedite criminal trials.... United States v. Werner, 620
F.2d 922, 928 (2d Cir.1980) (citations omitted); see also United States v. Turoff, 853 F.2d
1037, 1043 (2d Cir.1988) (Congress authorized consolidation in the belief that public
considerations of economy and speed outweigh possible unfairness to the accused).
Although properly joined, the Court may order separate trials or grant a severance
under Rule 14 of the Federal Rules of Criminal Procedure if it appears that the defendant is
19
prejudiced by the joinder. Werner, 620 F.2d at 928. However, Ain order to prevail, the
defendant must show not simply some prejudice but substantial prejudice.@ (emphasis added)
United States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004), citing Werner, 620 F.2d at 928.
Granting a severance under Rule 14 requires more than a showing of some adverse effect. A
defendant who seeks separate trials under Rule 14 carries a heavy burden of showing that
joinder will result in substantial prejudice. Sampson, 385 F.3d at 190, citing United States v.
Amato, 15 F.3d 230, 237 (2d Cir. 1994). Severance is not warranted merely because [the
defendant] may have a better chance of acquittal in separate trials. Zafiro v. United States,
506 U.S. 534, 540 (1993). Moreover, less drastic measures [than severance], such as
limiting instructions, often will suffice to cure any risk of prejudice and permit joinder.
United States v. Page 657 F.3d 126, 129 (2nd Cir. 2011), quoting Zafiro at 539. The Court
may presume that the jury is capable of understanding and following limiting instructions
provided during the course of and at the conclusion of the trial with regard to the manner in
which it may use evidence. Richardson v. Marsh, 481 U.S. 200, 211 (1987).
Argument
In the instant case, the three incidents charged are of similar nature. In each
instance, the Superseding Indictment alleges that defendant, while on duty and in uniform,
used excessive force on an individual by striking that individual with a nightstick or flashlight.
The government would call witnesses from the Buffalo Police Department to explain the
training and standards regarding use of force within the department. The government is also
contemplating calling an expert witness regarding use of force. Thus, there would be
20
significant inefficiency in conducting multiple trials when the explanation of the government
witness(es) would explain the force used in each count of the Superseding Indictment.
The defendant quotes extensively from United States v. Halper, 590 F. 2d 442 (2nd Cir.
1978). In Halper, the Court ruled that severance was necessary because the crimes tried
together, tax fraud and Medicare fraud, were not of similar nature. The Court rejected the
governments argument that the cases were of similar nature in that they were both crimes of
dishonesty for personal profit. Instead, the Court ruled that the Medicare and tax frauds
were two separate schemes and did not involve any common evidence. Here, the three
instances of excessive force are of similar nature and involve common evidence and therefore
are properly joined.
The defendants reliance on United States v. Alverado, 1994 U.S. Dist. LEXIS 17062
(S.D.N.Y. 1994) also is misplaced. In Alverado, the defendant was indicted on 2 separate
robberies. In the first robbery, there was very weak identification of the defendant as one of
the perpetrators while the identification in the second robbery was much stronger. The
Court sanctioned severance because the identification in the first case was unfairly buttressed
by the subsequent event.
The same rationale applies to another case cited by the defense, United States v. Ernle,
2012 U.S. Dist. LEXIS 48630 (W.D.N.Y. 2012). In Ernle, the Court severed three bank
robberies because there was no physical evidence linking the defendant to the first two
robberies while the defendant was caught with dye-stained money taken during the third
21
robbery. The only evidence linking the defendant to the first two robberies was that of modus
operendi.
Here, there is no issue of unfairly buttressing one unlawful use of force with any of the
others in the Superseding Indictment, nor is there an issue of identification of the defendant.
The acts of the defendant in each count be judged separately by the jury for that particular
count. In addition, the court can provide a limiting instruction if necessary. As such the
motion for severance should be denied.
The defendant also claims that he is entitled to severance because he may wish to
testify as to Counts 1 and 3, but not as to Count 4. Such a claim does not meet the
defendants heavy burden to justify severance. The case cited by the defendant, United
States v. Sampson, 385 F. 3d 183 (2nd Cir. 2004) reinforces that point:
We stated in United States v. Werner, however, that a mere unexplicated assertion of
the desire to testify on only one count is not enough to require severance. Werner, 620
F.2d at 930. In Werner, we pointed to the D.C. Circuit's statements in Baker that no
need for a severance exists until the defendant makes a convincing showing that he
has both important testimony to give concerning one count and strong need to refrain
from testifying on the other. Id. at 930 (quoting Baker, 401 F.2d at 977). The court in
Baker said further:
In making such a showing, it is essential that the defendant present enough
informationregarding the nature of the testimony he wishes to give on one
count and his reasons for not wishing to testify on the otherto satisfy the
court that the claim of prejudice is genuine and to enable it intelligently to
weigh the considerations of economy and expedition in judicial
administration against the defendant's interest in having a free choice with
respect to testifying.
Baker, 401 F.2d at 977 (footnote omitted); see also United States ex rel. Tarallo v. LaVallee,
433 F.2d 4, 6 (2d Cir.1970) (Moreover, in order for a defendant to be granted a
22
severance, he must make a convincing showing that he has both important testimony to
give concerning one count and strong need to refrain from testifying on the other. )
(quoting Baker, 401 F.2d at 977), cert. denied, 403 U.S. 919, 91 S.Ct. 2235, 29 L.Ed.2d
697 (1971). Footnote omitted.
Sampson, at 191. In Sampson, the Court ruled that severance of certain counts should have
been granted by the trial court based on a detailed presentation by the defense explaining why
the defendant would testify as to certain counts and not others.
Here, the defendant makes a weak assertion that he may wish to testify regarding
certain counts and not others. However, the defendant has failed to meet the burden set
forth in Sampson. The defendant has failed to provide a detailed presentation regarding
such testimony and, therefore his motion to must be denied.
Based on the foregoing, the defendants motion for severance based on Rule 8(a), Rule
14, and his assertion that he may testify should be denied.
III.
Garrity Statements
The government recognizes that statements made by persons under compulsion to
speak or, alternatively, lose their jobs, cannot be used in a criminal prosecution. Garrity v.
New Jersey, 385 U.S. 493 (1967).
The government has not had access to any such
statements that may have made by the defendant in a Garrity situation. The FBI, or any
other federal investigative or law enforcement agency, did not supervise, monitor, or
otherwise participate in the internal affairs investigation conducted by the Professional
Standards Division (PSD) of the BPD. Although the FBI did obtain the files of the BPD, the
23
FBI employed a taint agent to review the BPD file to ensure that any such statements would
not be disclosed to the criminal investigative team.
There is, consequently, no basis for the
Court to suppress such statements, nor to hold a hearing on this subject.
VI.
Discovery
a. Bill of Particulars
In his request for a Bill of Particulars, the defendant set forth five specific requests for
each Count. Essentially, the defendant requests the exact time, date and manner in which
the defendant committed the crimes alleged in the Indictment, the names of all witnesses, and
specification as to how the government will prove each allegation in the Indictment.
The Indictment is this case is very straightforward. The defendant has been provided
with significant discovery materials.
In addition, the Criminal Complaint provides
significant information concerning the government=s case against the defendant as to Count
4.
For the reasons set forth below, the government refuses the requests for further
particularization, except to the extent agreed to below.
a. Legal foundation for a Bill of Particulars

Federal Rule of Criminal Procedure 7(f) authorizes a Court to direct a bill of
particulars only in certain limited circumstances. According to settled law, a defendant may
only obtain a bill of particulars if such facts are Anecessary to apprise the defendants of the
charges against him [or her] with sufficient precision so as: (i) to enable him [or her] to
prepare his defense; (ii) to avoid unfair surprise at trial; and (iii) to preclude a second
24
prosecution for the same offense.@ 2
United States V. Persico, 621 F. Supp. 842, 868
(S.D.N.Y. 1985) (citing Wong Tai V. United States, 273 U.S. 77, 82 (1927); United States v.
Bortnovsky, 820 F.2d 572 (2d Cir. 1987)).
The rationale most frequently cited by Courts in refusing to order particularization

consists of the fundamental distinction between criminal and civil matters, and the
recognition that most bills of particulars are Aill-disguised attempts@ at discovery not
contemplated by the Constitution or Federal Rules of Criminal Procedure. United States v.
Torres, 901 F.2d 205, 234 (2d Cir. 1990). See also, United States v. Lavin, 504 F. Supp.
1356 (N.D. Ill. 1981) (defendants= requests nothing more than Aimproper attempts to discover
the evidentiary details of the prosecution=s case@); Shoher, 555 F. Supp. at 350 (requests
Aborder on frivolous@ and Aprobe too deeply into the Government=s theory of the case@). In
Persico, the Court explained its denial A[b]ecause of the nature of the issues, the danger of
intimidation of witnesses, and the greater danger of perjury and subornation of perjury
caused by disclosure of particulars of the Government=s case.@ 621 F. Supp. at 868 (quoting
United States v. Malinsky, 19 F.R.D. 426, 428 (S.D.N.Y. 1956) and United States v. Salazar,
485 F.2d 1272 (2d Cir. 1973)).
The Adouble jeopardy@ justification for awarding particularization appears to have limited
vitality in this Circuit given judicial recognition that the factor Adoes not >add anything to the
functions previously described.=@ United States v. Payden, 613 F. Supp. 800, 816 n.14, aff=d,
768 F.2d 487 (2d Cir. 1985) (quoting 1 C. Wright, Federal Practice and Procedure (Criminal)
' 129, at 436-37 (2d Ed. 1982)). Concern over this factor has also been described as
Aunfounded@ given that following trial, defendants have available the entire record of
proceeding, not simply the indictment, in the event they are later put in jeopardy for some
aspect of a previously charged offense. United States v. Shoher, 555 F. Supp. 346, 351
(S.D.N.Y. 1983) (citing Russell v. United States, 369 U.S. 749, 764 (1962)).
2
25
Cognizant of these principles, Courts have recognized their inherent discretion to award
particularization:
[M]ust be informed, however, by certain well established considerations: whether
the requested particularization is necessary to a defendant=s preparations for trial and
to the avoidance of unfair surprise at trial ... It is not enough that the information
would be useful to the defendant; if the defendant has been given adequate notice of
the charges against him, the Government is not required to disclose additional details
about the case. The court must be cognizant of the fact that a bill of particulars
confines the Government=s evidence at trial to the particulars furnished.
Payden, 613 F. Supp. at 816. See also, Bortnovsky, supra, at 574 (court will not order
particularization where the government has provided the information requested either Ain the
indictment or some acceptable alternative form.@); Torres, 901 F.2d at 234; United States v.
Desantis, 802 F. Supp. 794, 797-798 (E.D.N.Y. 1992) (Aas a general rule if the information
that the defendant seeks is to be found in the indictment or in some acceptable alternative
form, no bill of particulars is required@); United States v. Feola, 651 F. Supp. 1068, 1133
(S.D.N.Y. 1987)(whether the information sought has been provided elsewhere, such as in
other items provided by discovery, responses made to unobjected requests for particulars,
prior proceedings, and the indictment itself may be considered in deciding whether to order
particularization), aff'd, 875 F.2d 857 (2d Cir. 1989).
A bill of particulars Ais not a discovery tool and is not intended to allow defendants a
preview of the evidence or the theory of the government=s case.@ United States v. Guerrerio,
670 F.Supp. 1215, 1225 (S.D.N.Y. 1987) (citing United States v. Andrews, 381 F.2d 377,
377B78 (2d Cir. 1967) (per curiam); United States v. Remy, 658 F.Supp. 661, 670 (S.D.N.Y.
26
1987)). The United States is not obligated to disclose either the manner in which it will
attempt to prove the charges or the precise manner in which the defendant committed the
crime charged. See id. While it is within this Court's sound discretion to order the filing of a
Bill of Particulars, the burden is upon defendants to show that non-disclosure of the requested
particulars would lead to prejudicial surprise at trial or would adversely affect defendants'
rights. Any particularization confines the Government's proof to the particulars furnished.
United States v. Anguiera, No. 11CR116S, 2012 WL 1232096, at *2 Further, Aacquisition of
evidentiary detail is not the function of a bill of particulars,@ Torres, 901 F. Supp. at 234
(quoting Hemphill v. United States, 392 F.2d 45, 49 (8th Cir. 1968)), and A[a]n application for
a bill of particulars seeking, in effect, to obtain evidence must be rejected.@ United States v.
Facciola, 753 F. Supp. 449, 451 (S.D.N.Y. 1990), aff=d sub nom., United States v.
Skowronski, 968 F.2d 242 (2d Cir. 1992).
A Court also may not compel the Government to disclose its legal theory. Persico,
supra; United States v. Biaggi, 675 F. Supp. 790, 809 (S.D.N.Y. 1987). The Government
need not reveal Athe precise manner in which the crime charged in the indictment is alleged to
have been committed ... nor the exact time and place and persons present at each overt act
named in the indictment.@
Biaggi, 675 F. Supp. at 809 (internal citations omitted). See
also, United States v. Ferrarini, 9 F. Supp. 2d 284, 299-300 (S.D.N.Y. 1998) (rejecting
demand for bill of particulars outlining defendant's specific role in the charged conduct and
actions taken with respect to mail and insurance fraud counts). Nor may particularization be
used to Aforce detailed disclosure of acts underlying a charge,@ United States v. Mannino,
480 F. Supp. 1182, 1185 (S.D.N.Y. 1979), or as Aa means to lock the government into its
27
proof.@ United States v. Rigas, 258 F. Supp. 2d 299, 304 (S.D.N.Y. 2003)(citing United
States v. Fruchter, 104 F. Supp. 2d 289, 311-12 (S.D.N.Y. 2000); United States v. Perez, 940
F. Supp. 540, 550 (S.D.N.Y. 1996); United States v. Strawberry, 892 F. Supp. 519, 526
(S.D.N.Y. 1995). Indeed, because a defendant Ais only entitled to know those central facts
which will enable him to conduct his own investigation of the transactions that resulted in the
charges against him,@ a bill of particulars may not be employed Ato give a defendant the
benefits of the Government=s investigative efforts.@ United States v. Stroop, 121 F.R.D. 269,
272 (E.D.N.C. 1988) (citations omitted).
With these limitations in mind, and because bills of particulars are confined to those
instances where information is Aneeded@ to prepare for trial, defendants seeking particular
information have the burden of articulating specific facts relating to the need for the
information, rather than only referring the Court to other cases in which similar information
has been provided. Payden, 613 F. Supp. at 817. 3
b.
Most of the requests in this case do not meet the legal threshold
In the instant case, for the most part, counsel fails to articulate any facts upon which
the Court could conclude that the defendant had met his burden of establishing need,
Payden provides valuable insight on a number of particularization issues, including A[a]s a

general rule, the defendant does not >need= detailed evidence about the conspiracy in order to
prepare for trial properly@, and A[b]ecause the government is entitled to prove a conspiracy
through the use of circumstantial evidence, disclosure ... would unduly limit the
government's proof at trial.@ 613 F. Supp. at 817. A Judge in this District has made similar
observations regarding particularization in a conspiracy case. United States v. Mullen, 243
F.R.D. 54, 62 (W.D.N.Y. 2006) (citing Feola, supra).
28
especially in light of the talking Indictment, voluminous discovery and the detailed
information contained in Criminal Complaint as to Count 4.
As set forth above, the discovery production eliminates the need for a bill of
particulars. Torres, 901 F.2d at 234; Payden, 613 F. Supp. at 817. Accordingly, for all of
the foregoing reasons, defendant=s requests for a bill of particulars should be denied except as
follows:
1. a. August 29, 2010, at approximately between 10:30 pm and 11:00 pm, in the
vicinity of 46-52 Langmeyer, Buffalo, New York.
e. Details of the injuries to M.W. are contained in the medical records provided in
discovery.
2. a. The form was provided to the defense as part of discovery. The form was
completed by the defendant in the City of Buffalo on or about August 29 or August
30, 2010.
b. As set forth in the Superseding Indictment the FBI was, and is, empowered to
investigate all matters of civil rights violations included use of excessive force
under color of law.
3 a. February 4, 2011, at approximately between 11:00 am and 11:30 pm, on Bissell
Avenue between Walden Avenue and Genesee St., Buffalo, New York.
e. D.R. suffered pain and an injury to his head.
4. a. November 27, 2014, at approximately between 3:00 am and 4:00 am, in the
vicinity of Pearl and Chippewa, Buffalo, New York.
e. D.F. suffered pain, swelling and bruising of his left leg.
VII.
Discovery
As set forth above, the government has provided the defendant with significant
discovery, including the defendants BPD personnel file relating to his use of force, the video
29
recording of the events of November 27, 2015, transcripts of rule 50-h hearings, medical
records of M.W., and documents from the civil proceedings relating to Counts 1, 2, and 3.
The government is expecting to receive the audio tapes of the BPD radio calls leading up to
the events of August 29, 2010, and February 4, 2011, and will provide same to the defense
upon receipt. The government has provided all the materials from its file except reports of
FBI interviews of witnesses and the Grand Jury testimony of witnesses. This so called
Jencks Act material will be provided prior to trial as directed by the trial court.
Many of the defendants Rule 16 requests are inapplicable to this case. For example,
there have been no search warrants; no wiretaps, no sound recordings (except radio calls that
will be provided by the government and the video/audio recordings of the events of
November 27, 2014, that have been provided to the defense).
Nor have there been any
corporeal or photo identification procedures. There also have been no custodial statements
taken from the defendant. Any additional discoverable evidence the government finds shall
be disclosed pursuant to the Rule.
The government has complied with the Rule and will continue to do so. However, to
the extent the defendants request more, the Court must deny the requests. In particular, the
defendants request must be denied to the extent they ask for reports, memoranda, or other
internal government documents made by an attorney for the government or other
government agent in connection with investigating or prosecuting the case. Fed.R.Crim.P.
16(a)(2). Several requested items, either in whole or in part, clearly fall within this category
of non-discoverable material. To note only some examples, see, e.g., Dkt. No. 23, p. 27
30
6-8, 10.
Finally, the Court must deny the defendants motions to the extent they apply
to materials obtainable only pursuant to the Jencks Act.

a. Brady/Giglio Material
The defendants seek production of materials under the authority of Brady v.
Maryland, 373 U.S. 83 (1963). In the present case, the government is not aware of any
material that is exculpatory. The government acknowledges its affirmative duty to provide
the defendants with exculpatory evidence, as well as evidence the defense might use to
impeach the government's witnesses at trial. United States v. Bagley, 473 U.S. 667 (1985);
Giglio v. United States, 405 U.S. 150 (1972). Given this, and the governments
acknowledgment of its Brady obligations, no order from the Court is required. United States
v. Washington, 2014 WL 793320, *7 (W.D.N.Y. 2014).
Brady and Giglio, however, do not create a constitutional right of pretrial discovery in
a criminal proceeding. Neither case requires the prosecution to reveal before trial such
things as the names of its witnesses. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977);
United States ex rel. Lucas v. Regan, 503 F.2d 1, 3 n. 1 (2d Cir. 1974). Evidence that is not
exculpatory but is relevant for the purposes of impeachment, must be produced to the
defense, but need not be turned over in advance of trial. See United States v. Nixon, 418
U.S. 683, 701 (1974); see also United States v. Dotel, 1994 WL 25787, slip op. at *3
(S.D.N.Y. 1994). Brady impeachment material as to governments witnesses -- i.e., Giglio
material -- is properly disclosed when the witness testifies at trial). United States v. Feldman,
731 F. Supp. 1189, 1200 (S.D.N.Y. 1990).
31
Typical impeachment material, such as a
witnesss beneficial treatment by the government, is normally disclosed at the time Jencks Act
(3500) material is turned over, i.e. after the government witness has testified on direct
examination. 18 U.S.C. 3500(b); United States v. Payden, 613 F. Supp. 800, 821 (S.D.N.Y.
1963). The law in the Second Circuit is that Giglio material, like standard Brady material,
must be disclosed in time for its effective use at trial." United States v. Coppa, 267 F.3d
132, 142 (2d Cir. 2001). The immediate disclosure of Brady and Giglio material upon a
defendant's request, or at any time prior to trial, is not required. Coppa, at 140.
Brady also does not require the government to do defense counsel's pretrial
preparation, nor develop defense strategy, nor does it require the government to point out the
obvious. United States v. Larson, 567 F. Supp. 500, 503 (S.D.N.Y. 1983); United States v.
Ruggerio, 472 F.2d 599, 604 (2d Cir. 1973) (A purpose of the Brady rule is not to provide a
defendant with a complete disclosure of all evidence in the government's file which might
conceivably assist him in the preparation of his defense, but to assure that he will not be
denied access to exculpatory evidence known to the government but unknown to him).
As noted above, the government is not aware of any facts tending to exculpate a
defendant. If the government discovers such evidence, it will be disclosed promptly. The
government will provide impeachment Brady material in accordance with the schedule set by
the District Court prior to trial and not later than when the government produces and delivers
the Jencks Act material in this case. Brady impeachment material, if any should arise here,
would include promises of leniency or immunity agreements with government witnesses,
plea and/or non-prosecution agreements and letters or memorandum of understanding
32
regarding such, criminal arrest records of all prosecution witnesses, immoral, vicious or
criminal acts committed by witnesses, prior inconsistent statements.
A prosecutor=s
compliance with the disclosure of material under the Jencks Act is timely disclosure under
Brady. United States v. Martino, 648 F.2d 367, 384 (5th Cir. 1981) ( when alleged Brady
material is contained in Jencks Act material, disclosure is generally timely if the government
complies with the Jencks Act. ); United States v. Anderson, 574 F.2d 1347, 1352 (5th Cir.
1978); United States v. Persico, 621 F. Supp. 842, 870 n.3 (S.D.N.Y. 1985).
For the reasons stated above, no court-ordered relief regarding Brady/Giglio material
is required. The defendants motions should be denied.
b. Jencks Act Material

Disclosure of a witness statement is governed by the Jencks Act, 18 U.S.C. 3500.
The statute requires disclosure of the prior statement of a witness only after the witness has
testified on direct examination at trial. United States v. Coppa, 267 F.3d 132, 145 (2d Cir.
2001). District courts may not compel the government to disclose such material earlier.
Coppa, at 145; In Re United States, 834 F.2d 283, 286-87 (2d Cir. 1987).
The Jencks Act provides that no statement of a government witness shall be the subject
of a discovery demand, until said witness has testified on direct examination in the trial of
the case. A statement is defined to include a statement made by a witness to a grand jury.
18 U.S.C. 3500(e)(3). The defendants request for earlier disclosure of Jencks material
33
generally and grand jury material in particular seeks to circumvent the Jencks Act. The
motion for such disclosure must be denied.
The government recognizes the practical difficulties that would arise upon precise
application of the timing prescribed by the statute.
As a matter of discretion and
accommodation, the government will disclose Jencks material a reasonable amount of time
prior to trial. The defendants motions, however, demand more, and therefore they must be
denied. Moreover, it also must be noted that the Jencks Act applies only to statements. A
statement is defined by the Jencks Act as follows:
The term statement, as used in subsections (b), (c), and (d) of this section in relation
to any witness called by the United States, means-(1) a written statement made by said witness and signed or otherwise adopted or
approved by him;
(2) a stenographic, mechanical, electrical, or other recording, or a transcription
thereof, which is a substantially verbatim recital of an oral statement made by said witness
and recorded contemporaneously with the making of such oral statement; or
(3) a statement, however taken or recorded, or a transcription thereof, if any, made by
said witness to a grand jury.
18 U.S.C. 3500(e).
The meaning of statement is thus restricted to what the testifying witness states or
adopts as true. This would not extend, for example, to a government attorneys
memorandum as described by Krug, except insofar as such a memorandum otherwise met
the statutory definition of statement. Decisions such as United States v. Goldberg, 425
34
U.S. 94 (1976), therefore, while not narrowing the definition to exempt certain items,
expressly do not expand the definition to apply to things not within it. Goldberg, at 101-106.
To the extent the defendants request materials that are not statements as defined in the
statute, their requests also must be denied.
c. Preservation of agents notes

The government has notified the agents to preserve notes generated during the
investigation and will disclose same pursuant to Jencks.
d. Disclosure of expert witnesses

The government recognizes the obligations imposed by the applicable rules. If the
government retains an expert witness for use at trial, the disclosure prescribed by the rules will
be made. No such expert has been retained to date.
e. Rule 807 disclosure

If the government offers intends to offer evidence subject to the residual hearsay
exception, the notice required by FRE 807(b) shall be provided.
f. Hearsay declarant disclosure

The government views this request for relief as an offshoot of its Brady obligations.
The government will continue to comply with its obligations under Brady. No court order of
the sort requested here is justified.
35
g. Hearing pursuant to Rules 404(b) and 609

The issues raised pursuant to Rules 404(b) and 609 are matters that should be
addressed by the trial judge. The government will provide reasonable advance notice of any
404(b) evidence. There is no basis, however, for this matter to be ruled upon at the present
juncture. The government does not have information that would fall under the provisions of
Rule 609.
h. Leave to make further motions

The government defers to the discretion of the Court whether the defendants request
for leave to file further motions is appropriate.
THE GOVERNMENT=S REQUEST FOR DISCOVERY PURSUANT

TO FEDERAL RULE OF CRIMINAL PROCEDURE 16(B)(1)
Pursuant to Rule 16(b) of the Federal Rules of Criminal Procedure, the government
hereby requests reciprocal discovery.
Specifically, the government requests that it be
allowed to inspect and copy books, papers, documents, photographs, tangible objects, or
copies or portions thereof which are within the possession, custody or control of a defendant
and which a defendant intends to introduce as evidence-in-chief at the trial. Additionally,
the government requests to inspect and copy any results or reports of physical or mental
examinations and/or of scientific tests or experiments made in connection with this case
within the possession or control of a defendant which a defendant intends to introduce as
evidence-in-chief at the trial or which was prepared by a witness whom a defendant intends to
36
call at the trial when the results or reports relate to that witness=s testimony. As of this date,
defendant has not provided any reciprocal discovery to the government.
CONCLUSION
WHEREFORE, for all of the foregoing reasons, the defendant=s motions should be
denied except where consented to by the government.
DATED:
Buffalo, New York, January 14, 2016.

WILLIAM J. HOCHUL, JR.
United States Attorney
BY:
s/JOHN E. ROGOWSKI
Assistant United States Attorney
United States Attorney=s Office
Western District of New York
138 Delaware Avenue
Buffalo, New York 14202
(716) 843-5873
John.E.Rogowski@usdoj.gov
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Case 1:15-cr-00157-RJA-HKS Document 17 Filed 01/14/16 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT

GOVERNMENT'S RESPONSE TO DEFENDANT=S

Case 1:15-cr-00157-RJA-HKS Document 17 Filed 01/14/16 Page 2 of 37

The government submits this Memorandum in opposition to the defendants motions

Case 1:15-cr-00157-RJA-HKS Document 17 Filed 01/14/16 Page 3 of 37

Events of August 29, 2010 (Counts 1 and 2)

Case 1:15-cr-00157-RJA-HKS Document 17 Filed 01/14/16 Page 4 of 37

The charges were dismissed in Buffalo City Court for direct

Events of February 4, 2011 (Count 3)

Case 1:15-cr-00157-RJA-HKS Document 17 Filed 01/14/16 Page 5 of 37

KRUG told Officer Rezabek

The charges were

Case 1:15-cr-00157-RJA-HKS Document 17 Filed 01/14/16 Page 6 of 37

Events of November 27, 2015 (Count 4)

The evening of the night before

Several BPD officers, including KRUG interacted with the

The event on the street was recorded by a video

photographer for the WKBW new department.

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Use of Force report forms filed by the defendant 1.

The defendant was provided with all

THE DEFENDANT=S MOTIONS

I. Motion to dismiss the Superseding Indictment

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Relevant Factual background

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A set period within which prosecution must be initiated safeguards

[W]here delay prejudices the presentation of a defense and is engaged in for an

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b. Grand Jury taint.

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Count 2 is not facially insufficient

The defendant argues that Count 2 of Superseding Indictment is facially insufficient

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relation to and in contemplation of a matter within the jurisdiction of a department and

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Although the government

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The government has not had access to any such

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There is, consequently, no basis for the

Court to suppress such statements, nor to hold a hearing on this subject.

In addition, the Criminal Complaint provides

particularization, except to the extent agreed to below.

a. Legal foundation for a Bill of Particulars

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prosecution for the same offense.@ 2

United States V. Persico, 621 F. Supp. 842, 868

The rationale most frequently cited by Courts in refusing to order particularization

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Biaggi, 675 F. Supp. at 809 (internal citations omitted). See

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Payden provides valuable insight on a number of particularization issues, including A[a]s a