Opinion
1:18-CR-00004 EAW
2020-10-20
UNITED STATES of America, v. Jaron RUTH, Defendant.
Joseph M. Tripi, Michael Paul Felicetta, United States Attorney's Office, Buffalo, NY, for United States of America.
Joseph M. Tripi, Michael Paul Felicetta, United States Attorney's Office, Buffalo, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
Presently before the Court is the motion of defendant Jaron Ruth ("Ruth") to enforce a subpoena served on the Cattaraugus County District Attorney's Office ("the CCDA"). (Dkt. 168). For the following reasons, Ruth's motion is granted.
BACKGROUND
On January 15, 2019, Ruth pleaded guilty to Counts 1 and 4 of the Indictment, charging him with conspiracy to possess with intent to distribute, and distribute, 28 grams or more of cocaine base, a quantity of cocaine, and a quantity of marijuana in violation of 21 U.S.C. § 846 (Count 1), and possession of firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4). (Dkt. 56; Dkt. 57). Thereafter, the Court held a sentencing hearing, which took place on August 17, 2020 through 21, 2020, continued on August 24, 2020, and concluded on September 17, 2020. (Dkt. 150; Dkt. 151; Dkt. 152; Dkt. 153; Dkt. 154; Dkt. 156; Dkt. 167). The purpose of the hearing was for the Court to receive evidence relating to the applicability of U.S.S.G. § 2D1.1(d)(1), cross-referencing U.S.S.G. § 2A1.1, for Ruth's alleged role in the murder of Henry Ackley in September 2012. (See Dkt. 56 at ¶ 4(e)).
By way of background, before he was charged in federal court, in 2016 Ruth was charged with the Ackley murder by the state; however, those charges were subsequently dismissed. (Dkt. 168 at ¶¶ 6, 8; Dkt. 169 at 7). At the sentencing hearing, the government offered evidence in the form of pre-recorded video testimony of Amber Crouse (see Dkt. 169 at 5), who implicated Ruth in the Ackley homicide. Amber Crouse is deceased and therefore did not testify at the hearing.
On September 17, 2020, the final day of the hearing, Ruth's attorneys informed the Court that they had issued a subpoena to the CCDA, seeking discovery of certain information. (See Dkt. 167). The subpoena was issued on September 8, 2020 and served on September 9, 2020. (Dkt. 168 at ¶¶ 12-13). The subpoena sought the following information:
Any and all records, documents and information, in any format (including electronic mail messages and text messages), that have not previously been provided to the United States Attorney's Office for the Western District of New York, relating to or regarding: a) the reasons for dismissal of People v. Jaron Ruth , Indictment No. 16-121; and/or, b) the credibility of Amber Crouse; c) exculpatory information as to the charged defendant, Jaron Ruth, in Indictment No. 16-121; and, d) a tattoo photo array conducted with [redacted] on or about August 23, 2017 ("array"), including requests for, communications regarding, and discussions relating to the array.
(Id. at ¶ 12). The subpoena did not require personal appearance, so long as a certified response was provided. (Id. ). The original subpoena was issued and sealed by the Clerk of Court and returnable by September 14, 2020 at 9:30 a.m. at the United States Courthouse in Buffalo, New York. (Id. ). The CCDA did not respond to the subpoena or appear before the Court, nor was there any effort made to contact defense counsel to explain the non-response. (Id. at ¶ 14). On September 22, 2020, Ruth filed the instant motion to enforce the subpoena. (Dkt. 168). The government filed a response on September 28, 2020 (Dkt. 171), and Ruth replied on October 6, 2020 (Dkt. 173).
ANALYSIS
I. Arguments Advanced by Ruth and the Government
Ruth contends that he is entitled to enforcement of the subpoena for several reasons, including: the subpoena was properly issued and served; Ruth's state court public defender never received certain Brady material in connection with the state prosecution; the lack of emails from the CCDA disclosed in discovery; compliance with the subpoena would not be unreasonable or oppressive; the late disclosure of discovery material by the government during the August and September 2020 sentencing hearing, including grand jury transcripts and a third unsuccessful dive of the Allegheny River, despite the government's assurance that all records had been disclosed; and the materials sought by the subpoena are relevant. (Dkt. 168 at ¶¶ 15-20).
In its response, the government agrees that the CCDA should have responded to the subpoena. (Dkt. 171 at 2). However, the government opposes production of two categories of information sought by the subpoena: (1) records pertaining to the reasons for the dismissal of the state prosecution against Ruth, because such information is irrelevant and protected by the attorney work-product privilege; and (2) records pertaining to the credibility of Amber Crouse, because that information is outside the scope of a Rule 17 subpoena and the Court is already familiar with impeachment material relating to Amber Crouse. (See id. at 171 at 2-6). The government also represents that it has endeavored to obtain all exculpatory evidence and impeachment material from the CCDA and that "as required by [Brady ], the United States Attorney's Office has provided to the defendant all exculpatory and impeachment material in its possession and under its control." (Id. at 6-7).
Ruth replies that the government does not have standing to challenge the subpoena and the information he seeks is relevant to the issues raised at the sentencing hearing. (Dkt. 173).
II. The Subpoena Should be Enforced
The Court will not address Ruth's argument relating to the government's standing to challenge the subpoena because, even if the government has standing to oppose the subpoena, the Court is not persuaded by the government's arguments that the material sought by Ruth is not relevant. The government first contends that the materials requested by Ruth are irrelevant and inadmissible because Rule 17 is designed to seek admissible evidence and not impeachment information. (Dkt. 171 at 2-3; citing Fed. R. Crim. P. 17(c)(1) and United States v. Nixon , 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) ). While a defendant must demonstrate the admissibility of evidence sought by subpoena if he is requesting the evidence for trial, the strict evidentiary limitations that apply at a criminal trial do not apply at a sentencing hearing. See United States v. Cofield , No. 17 Cr. 610(LGS), 2019 WL 4879331, at *2 (S.D.N.Y. Oct. 3, 2019) ("The Federal Rules of Evidence do not apply at sentencing proceedings ... and a court may consider any relevant information, provided that the information has sufficient indicia of reliability to support its probable accuracy[.]") (internal quotation marks and citations omitted). In other words, sentencing proceedings are not "second trials," United States v. Fatico , 603 F.2d 1053, 1057 (2d Cir. 1979), and "[t]he sentencing court's discretion is ‘largely unlimited either as to the kind of information he may consider, or the source from which it may come.’ Any information or circumstance shedding light on the defendant's background, history and behavior may properly be factored into the sentencing determination," see United States v. Carmona , 873 F.2d 569, 574 (2d Cir. 1989) (citation omitted) (quoting United States v. Tucker , 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) ).
The relevancy and admissibility of the information sought by Ruth must be viewed in the context of the type of proceeding at hand. In other words, while the evidence sought by Ruth may not meet the standard for admissibility at trial, he is seeking to use this evidence in connection with his sentencing hearing, where the Court can receive a wide range of information in its effort to impose a fair and just sentence. Indeed, the government has fully embraced this relaxed evidentiary standard as demonstrated by the evidence it has sought to admit at the hearing in the form of statements by Amber Crouse through the testimony of its case agent. The government cannot simultaneously benefit from the relaxed evidentiary standards at a sentencing hearing but then to seek to impose a stricter standard on Ruth.
As to the materials sought relating to the credibility of Amber Crouse, defense counsel has articulated why evidence in the CCDA's possession concerning her credibility is relevant to the issues before the Court. (See Dkt. 168 at ¶ 20). Amber Crouse is a key government witness and Ruth cannot confront her. Accordingly, it cannot reasonably be disputed that evidence relating to Amber Crouse's credibility is relevant to whether Ruth committed the Ackley homicide. To the extent this information has not already been produced, it is relevant and properly within the scope of the subpoena, particularly considering the nature of sentencing proceedings.
In support of its argument that the CCDA's reasons for dismissing its prosecution against Ruth are irrelevant, the government cites to "the doctrine of dual sovereignty," which gives both the United States and the state of New York the power to "independently ... determine what shall be an offense against its authority and to punish such offenses," and therefore "the outcome in a state proceeding is not binding upon the later [federal prosecution]." (Dkt. 171 at 3-4 (quoting United States v. Davis , 906 F.2d 829 (1990) ).) The government further contends that it and the CCDA "did not work together jointly in this investigation or prosecution, rather, the government charged and prosecuted this case wholly independently from the District Attorney," and the government has disclosed all Brady material under its control. (Id. at 7).
Putting aside the issue of whether there was overlap in the investigation between the government and the CCDA, cf. United States v. Connolly , No. 1:16-CR-00370 (CM), 2017 WL 945934, at *6 (S.D.N.Y. Mar. 2, 2017) ("[J]oint fact-gathering is part of what is often referred to as joint investigation, triggering a Brady obligation, even if it is not a joint prosecution. Facts that the Government ... emphasizes, such as the independence of the two agencies’ charging decisions and trial strategy, may show that this is not a joint prosecution but they have no bearing on joint collection of exculpatory information that Brady compels the prosecutor to disclose." (internal quotations omitted) (quoting United States v. Shakur , 543 F. Supp. 1059, 1060 (S.D.N.Y. 1982) )), to the extent the CCDA's reasons for dismissing the state prosecution against Ruth constitute exculpatory or impeachment material, that information is relevant to the sentencing issues before the Court, i.e. , whether the government has proven by a preponderance of the evidence that Ruth murdered Henry Ackley. Regardless of whether the government and the CCDA conducted a joint investigation or prosecution, if these materials are not within the possession of the government, Ruth may seek to obtain them by subpoena. See United States v. Upton , 856 F. Supp. 727, 750 (E.D.N.Y. 1994) (holding that the government was not required to search the files of the Federal Aviation Administration and produce material responsive to defendants’ Brady and Rule 16 requests because "the United States Attorney's Office did not conduct a joint investigation with the other agencies whose records defendants seek," but noting that "[t]his ... does not leave defendants without recourse to relevant documents which these agencies may have; they are free to subpoena the agencies pursuant to the Federal Rules of Criminal Procedure."); United States v. Guerrerio , 670 F. Supp. 1215, 1220 (S.D.N.Y. 1987) (declining to order production of grand jury material from the Bronx District Attorney's Office, and explaining that "Brady does not require the government to search for exculpatory material not within its possession or control," and "even if the Bronx materials were indeed exculpatory and indeed within the control of the government, it does not necessarily follow that such material would fall within the ambit of Brady ," but also noting that "the defendants are well aware of the existence of the Bronx grand jury materials. If they seek to obtain such material, they may apply for an order of the Bronx County Supreme Court allowing them access to the material in question."); Shakur , 543 F. Supp. at 1060 (where there was "cooperative activity" between the United States Attorney's Office and the Rockland County District Attorney with respect to the alleged crime charged in the indictment, rejecting as "hypertechnical and unrealistic" the government's argument that it was not required to discover or ascertain evidence favorable to the defendants in the possession of the District Attorney, and explaining that "[t]he government is required to make available all Brady material, including any that may be in the possession of the District Attorney of Rockland County," but noting that "should there be any difficulty encountered by the United States Attorney in obtaining the production of such material in this district, the subpoena power of the court is available to compel its production.").
Ruth is not requesting that the government (i.e. the United States Attorney's Office) provide him with the records sought by the subpoena; indeed, the government represents that it has provided all Brady information of which it is aware to Ruth. (See Dkt. 171 at 6-7). Rather, Ruth requests that the Court issue an order enforcing the subpoena and directing the CCDA to disclose such information. Although Ruth was initially charged by the state, the information gathered during the state's investigative process—to the extent it constitutes Brady /impeachment material—is now plainly relevant to the issues before the Court. While the subpoena seeks all information pertaining to the CCDA's decision to dismiss the state court indictment—regardless of whether it constitutes Brady information—in view of the CCDA's wholesale disregard of the subpoena and the reported Brady violations by the CCDA in the state court prosecution (Dkt. 168 at ¶ 16(a)), the Court concludes that the subpoena is proper and the information sought should be produced. In other words, under the circumstances, the Court is not willing to modify this category of documents pertaining to the dismissal of the state court prosecution, to only those materials that fall within the scope of Brady.
The government also argues that the CCDA's reasons for dismissing the state prosecution against Ruth constitute attorney work-product information. (Dkt. 171 at 6). While not resolving whether any privilege objection by the CCDA has been waived by its failure to respond to the subpoena, the Court will require that if the CCDA believes that any records encompassed by the subpoena are privileged, it must produce a privilege log identifying those responsive documents. See Crosby v. City of N.Y. , 269 F.R.D. 267, 276-77 (S.D.N.Y. 2010) (explaining that the work-product doctrine articulated in Hickman v. Taylor may have application to non-party district attorney's office, which had been served with three subpoenas, but explaining that "[e]ven where work-product protection applies, the protection is not absolute."); see also United States v. Humphrey , No. 10CR25A, 2011 WL 2532998, at *3 (W.D.N.Y. June 24, 2011) (indicating that to the extent the government claimed that documents responsive to subpoena were privileged, it should have produced a privilege log stating specific basis for any privilege asserted). The Court will not limit the scope of the subpoena simply because some documents responsive to it may be privileged, particularly where the CCDA has not even bothered to assert the protection of any privilege by responding to the subpoena or moving to quash it.
Finally, the government represents that it has consulted with the CCDA, endeavored to obtain all exculpatory evidence and impeachment material, and has produced any Brady material in its possession. (Dkt. 171 at 6-7). However, despite its representations to defense counsel that all discovery had been turned over, mid-hearing, the government produced several pieces of evidence arguably constituting Brady and/or impeachment material. In other words, the government has not established that further responsive documents do not exist. See Humphrey , 2011 WL 2532998, at *2 ("The government, as the movant, has the burden to establish that responsive documents do not exist, or that if responsive documents do exist, that there is some other basis to preclude enforcement of the subpoenas."). To the extent the CCDA is in possession of information responsive to the subpoena, it must be produced.
It does not appear to the Court, and the government does not argue, that the subpoena was improperly served. Therefore, the CCDA was required to comply with it.
CONCLUSION
Accordingly, it is hereby
ORDERED that the Cattaraugus County District Attorney's Office shall comply with the subpoena issued by defense counsel on September 8, 2020. Any responsive documents must be produced with an appropriate certification as noted in the subpoena, and directed to the undersigned's attention and delivered to the Clerk's Office at the United States Courthouse, Two Niagara Square, Buffalo, New York 14202, on or before October 29, 2020, and it is further
ORDERED that, to the extent the Cattaraugus County District Attorney's Office believes that any responsive documents are privileged, it shall produce a privilege log in accordance with the instructions set forth in the above paragraph and within the same time frame. For any responsive documents withheld under a claim of privilege, the District Attorney shall identify: (1) the type of document (i.e. , "report" or "memorandum"); (2) the general subject matter of the document; (3) the date of the document; and (4) the specific privilege implicated (i.e. , "work product privilege," or "attorney-client privilege"), unless providing this information would cause the disclosure of the allegedly privileged information, and it is further
ORDERED that counsel for Defendant shall arrange to serve a copy of this Decision and Order on the Cattaraugus County District Attorney's Office on or before October 22, 2020, and file proof of service of the same, and the government shall also provide a copy of the subpoena to the Cattaraugus County District Attorney's Office.
SO ORDERED.