
    UNITED STATES of America, v. Charles PALMER, et al., Defendants.
    No. 11CR202S.
    United States District Court, W.D. New York.
    July 19, 2012.
    Order on Reconsideration in Part Sept. 6, 2012.
    
      Michael L. McCabe, U.S. Attorney’s Office, Buffalo, NY, for United States of America.
   Order

HUGH B. SCOTT, United States Magistrate Judge.

Before the Court are several moving defendants’ separate omnibus motions (Docket Nos. 74, Charles Palmer, Sr.; 75, 76, George Krajas; 84, Michael Smerka; 72, Aleathea Stone; and 85, 86, Charles Palmer, Jr.) seeking various forms of relief. Some of the other defendants joined in these motions (Docket Nos. 81 (William Bart Alexander); 80, 96 (Timothy Borkowski); 82 (Christopher Carluccio); 77 (James Simmons)), with some of the moving defendants also joined in codefendants’ motions, Docket Nos. 84 (Smerka), 85 (Charles Palmer, Jr.), 86 (Charles Palmer, Jr., amended motion), 78 (Charles Palmer, Jr.). This Order considers the common requests by defendants for non-dispositive discovery relief. A separate Report & Recommendation will consider the various suppression motions made by some of these moving defendants.

Responses to these motions were duly filed (Docket Nos. 90 (Government response to Palmer, Sr., motion), 87 (response to Krajas’s motion), 95 (supplemental response to Krajas’s motion), 91 (response to Smerka motion), 89 (response to Stone motion), 88 (response to Palmer, Jr., motion)) and the Government also moved for reciprocal discovery from these defendants (Docket Nos. 90 ¶ 32; 87 ¶ 31; 91, ¶ 15; 89, ¶ 13; 88, ¶31). These motions were argued on March 28, 2012 (text minute entry, Mar. 28, 2012), with further briefing ordered on the Franks hearing issue by April 10, 2012, and Government response by April 20, 2012. That briefing was filed (see Docket Nos. 93 (Krajas Memo, of Law), 95 (Government supplemental response to Krajas)) and the motions were initially deemed submitted as of April 20, 2012. Meanwhile, on March 30, 2012, this Court had to recuse as to one defendant, Gregory Miller (Docket No. 92) and Chief Judge Skretny referred the entire case to Magistrate Judge Schroeder (Docket No. 98). This referral was modified, however, on June 13, 2012, to refer this case (save Miller) back to the undersigned (text Order, June 13, 2012). At a status conference held on June 19, 2012, this Court deemed the motions fully submitted as of that date and calculated the time remaining on the Speedy Trial Act clock (text of minute entry, June 19, 2012).

Charles Palmer, Sr., moved, on April 10, 2012, for a two-week extension of the supplemental motion date (Docket No. 94) and Krajas separately moved on April 18, 2012, for extension of time (to May 4, 2012) to file his supplemental motion (Docket No. 97). These motions were never formally decided, although Krajas filed his memorandum on May 8, 2012 (see Docket No. 99) and Palmer, Sr., did not file any supplemental papers. Upon further consideration, the preliminary Speedy Trial Act calculation made on June 19, 2012, is amended; the Speedy Trial Act has not expended any time given this pending motion for extension of time, see 18 U.S.C. § 3161(h)(1)(D). Those motions (Docket Nos. 94, 97) are now denied as moot given Krajas’ filing and this Court’s determination of the underlying motions.

BACKGROUND

Defendants were indicted in a multiple count Indictment for conspiracy by all eleven defendants to possess with intent to distribute cocaine, cocaine base, marijuana, and hydrocodone from at least November 2010 to the date of the Indictment (Docket No. 1, Indict., Count 1). Two defendants also were charged with seven individual counts of possession of cocaine, cocaine base or marijuana by George Krajas or Charles Palmer, Sr., or by both Krajas and Palmer, Sr., together (id. Counts 2-8). The Indictment also charges a forfeiture allegation against premises on Broadway in Buffalo, New York (id. at pages 7-8). The alleged possessions occurred in November of 2010, May and June of 2011 (id., Counts 2-8).

DISCUSSION

I. Informant Information

Defendants seek the pre-trial disclosure of the identity of any informants in this case (e.g., Docket No. 72, Stone Atty. Affirm. ¶ ¶ 7-11; Docket No. 74, Palmer, Sr., Atty. Affirm. ¶¶ 11-16). In general, the Government objects to defendants’ expansive discovery requests (e.g., Docket No. 90, Gov’t Response re Palmer Sr. ¶ 10).

The Government is not required to furnish the identities of informants unless it is essential to the defense. Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); United States v. Saa, 859 F.2d 1067, 1073 (2d Cir.1988), cert. denied, 489 U.S. 1089, 109 S.Ct. 1555, 103 L.Ed.2d 858 (1989). Nor does Rule 16 require the Government to disclose the names of witnesses prior to trial. United States v. Bejasa, 904 F.2d 137, 139 (2d Cir.), cert. denied, 498 U.S. 921, 111 S.Ct. 299, 112 L.Ed.2d 252 (1990).

Defendants each have not established that the pre-trial disclosure of the identities of any informants is essential to their respective defenses. This request is denied.

II. Discovery

Defendants next seek various forms of discovery. The Government responds that in general it has complied fully with its discovery obligations to each defendant (e.g., Docket No. 90, Gov’t Response to Palmer, Sr., Motion ¶ 1).

Although there is no general constitutional right to pretrial discovery in a federal criminal case, a defendant does have a pretrial discovery right with respect to certain matters. For example, under the Fifth Amendment’s due process clause, a defendant is entitled to specific exculpatory evidence which is material either to guilt or punishment. In addition, the government has certain disclosure obligations under Rule 16 of the Federal Rules of Criminal Procedure and the Jencks Act, 18 U.S.C. § 3500.

III.Brady

each have requested that the Government disclose all materials potentially favorable to them, including in-into be used for the impeachment of the Government’s witnesses, as required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and their progeny. Brady material, as those cases have come to define it, includes all evidence which may be favorable to the defendant and material to the issue of guilt or punishpunishSuch evidence includes “[a]ny and all records and/or information which might be helpful or useful to the defense in imim... [and] [a]ny and all records and information revealing prior misconduct ... attributed to the [Government’s] witwitUnited States v. Kiszewski, 877 F.2d 210 (2d Cir.1989).

Defendants’ motions identify numerous specific categories of documents encompassing both exculpatory and impeachment Brady materials which they seek to obtain. The Government’s written response is that it acknowledged its obligations and declared that it was not in possession of any Brady material (e.g., Docket No. 90, Gov’t Response to Palmer, Sr., ¶¶ 4-5, 8-9).

[6] instant case does not appear to be unusually complex. Balancing all of the above, the Court concludes that disclosure of such impeachment material, if any ex-exin accordance with the common pracpracin this District (prior to trial so long as it is disclosed in sufficient time for the defendant to have a fair opportunity to utilize the information at trial) is suffisuffiin this case.

IV. Federal Rules of Evidence 404(b), 608, 609

In response to defendants’ motions for disclosure of Federal Rules of Evidence 404(b), 608, and 609 materials regarding defendants’ respective prior crimes and other bad acts, the Government offers to provide reasonable notice of these prior acts in advance of trial (e.g., Docket No. 89, Gov’t Response to Stone Motion ¶ 11). This is sufficient.

V. Jencks Act

[7] seek immediate disclodiscloof material subject to the Jencks Act, 18 U.S.C. § 3500. The Jencks Act govgovthe disclosure of information and statements relating to the Government’s witnesses. Generally, according to the Jencks Act, the Government need not disdissuch information regarding its witwituntil after the witness has testified at trial. In this case, the Government has agreed to disclose this information at the time set by the District Court (e.g., Docket No. 90, Gov’t Response to Palmer, Sr. ¶ 3). This is acceptable; the Government shall disclose Jencks Act information prior to trial as ordered in the District Court’s final pretrial Order.

VI. Preservation of Evidence

Defendants next seek preservation of agents’ rough notes and other evidence. Generally, the Government does not address this issue, but declares generally that it has and will comply with discovery and disclosure rules (e.g., Docket No. 89, Gov’t Response to Stone ¶¶ 6, 7). If it has not done so already, the Government is to preserve agents’ rough notes.

VII. Bills of Particulars

Each defendant next moves for a Bill of Particulars. Rule 7(f) of the Federal Rules of Criminal Procedure provides that the Court may direct the filing of a Bill of Particulars. The Government opposes these requests because most of the information sought particularized is presented in voluntary discovery and in the criminal Complaint or is information beyond the scope of a Bill of Particulars (e.cj., Docket No. 88, Gov’t Response to Stone ¶ 12).

Bills of Particulars are to be used only to protect a defendant from double jeopardy, to enable adequate preparation of a defense and to avoid surprise at trial. United States v. Torres, 901 F.2d 205 (2d Cir.1990). The Government is not obligated to “preview its case or expose its legal theory,” United States v. LaMorte, 744 F.Supp. 573 (S.D.N.Y.1990); United States v. Leonelli, 428 F.Supp. 880 (S.D.N.Y.1977); nor must it disclose the precise “manner in which the crime charged is alleged to have been committed,” United States v. Andrews, 381 F.2d 377 (2d Cir.1967). Notwithstanding the above, there is a special concern for particularization in conspiracy cases, United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988), but the Government need not prove overt acts in furtherance of the conspiracy, United States v. Knuckles, 581 F.2d 305, 311 (2d Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659 (1978), or particularize on the facts surrounding the formation of the conspiracy or when a given defendant joins it, United States v. Iannelli, 53 F.R.D. 482 (S.D.N.Y.1971) (id. ¶ 29). While it is within this Court’s sound discretion to order the filing of a Bill of Particulars, Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545 (1927), 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, id. (Docket No. 55, Gov’t Atty. Aff. ¶ 24). Any particularization confines the Government’s proof to the particulars furnished, United States v. Glaze, 313 F.2d 757, 759 (2d Cir.1963); United States v. Murray, 297 F.2d 812, 819 (2d Cir.), cert. denied, 369 U.S. 828, 82 S.Ct. 845, 7 L.Ed.2d 794 (1962) (id. ¶ 27).

Count I of the Indictment alleges that “beginning sometime prior to in or about November 2010, the exact date being unknown, and continuing up to the date of the return of this Indictment, in the Western District of New York, and elsewhere, the defendants,” knowingly, willfully, and unlawfully conspired to agree to possess cocaine, cocaine base, marijuana, and hydrocodone with the intent to distribute and to distribute the same (Docket No. 1, Indict., Count 1). Upon review of the Indictment and the extent of discovery produced in this case to defendants, this Court finds that each defendant is not entitled to a Bill of Particulars from the Government here inasmuch as each defendant is sufficiently advised of the charges against him to allow for the proper preparation of a defense, to avoid surprise at trial, and to protect the defendant from double jeopardy.

VIII.Grand Jury Minutes

Palmer, Sr., and Krajas (Docket Nos. 74, Palmer, Sr., Atty. Affirm. ¶¶ 73-74; Docket No. 75, Krajas Motion at 17-18) each seek to review the Grand Jury minutes (as well as Palmer, Jr., and other defendants joining in these motions). Palmer, Sr., states that he has particularized need to be informed of the evidence against him (Docket No. 74, Atty. Affirm. ¶ 74), while Krajas claims that he faces a bare bones Indictment that does not inform him of the witnesses against him (Docket No. 75, Krajas Motion at 18).

Under Federal Rule of Criminal Procedure 6(e)(3)(E)(ii), this Court may authorize the disclosure of a Grand Jury matter at the request of the defense who shows that a ground may exist to dismiss the Indictment because of a matter that occurred before the Grand Jury. The Court may authorize this disclosure “at a time, in a manner, and subject to any other conditions that it directs,” id. Defendants had to show that they have a particularized need for disclosure that outweighs the Government’s interest in maintaining Grand Jury secrecy, United States v. Alexander, 860 F.2d 508, 513 (2d Cir.1988); see United States v. Twersky, No. S2 92 Cr. 1082, 1994 WL 319367, at *5, 1994 U.S. Dist. LEXIS 8744, at *14-16 (S.D.N.Y. June 29, 1994) (granting in camera review of Grand Jury minutes and reserving decision on motion to dismiss Indictment). A defendant must state a particularized need for these transcripts “in order to present a vigorous defense” which outweighs the principle of Grand Jury secrecy, Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959). There are occasions “when the trial judge may in the exercise of his discretion order the minutes of a grand jury witness produced for use on his cross-examination at trial. Certainly ‘disclosure is wholly proper where the ends of justice require it,’ ” Pittsburgh Plate Glass, supra, 360 U.S. at 400, 79 S.Ct. 1237 (quoting United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 84 L.Ed. 1129 (1940)). The burden is upon the defendant to show a particularized need exists that outweighs the policy of Grand Jury secrecy, id. Particularized need includes impeachment of a witness at trial, refreshing recollection, and testing witness credibility, United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). “A review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct,” Torres, supra, 901 F.2d at 233, and (even if disclosed) “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, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988); Torres, supra, 901 F.2d at 233.

As was held in the Pittsburgh Plate Glass case, supra, 360 U.S. at 400, 79 S.Ct. 1237, defendants have not made a showing of particularized need, but cf. Dennis v. United States, 384 U.S. 855, 872-73, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) (Court found that defense did not make out a particularized need, listing the circumstances of particularized need). Merely stating the desire to make a vigorous defense in general or the lack of particularization in the Indictment does not show a particular need for Grand Jury testimony (such as specifying which witness’s testimony is necessary for that vigorous defense) or show whether that Grand Jury testimony is needed for impeachment, refreshing recollection or testing credibility.

The motions on this ground are denied.

IX. Federal Rules of Evidence 702, 703, 705, Expert Disclosure

Charles Palmer, Jr., seeks a list of Government expert witnesses and disclosure of their reports and summaries of their testimony (Docket No. 86, Palmer, Jr., Affirm. ¶ 49). The Government does not expressly consider this motion, but argues generally that discovery has been complied with (Docket No. 88, Gov’t Response to Palmer, Jr., ¶¶ 1, 6). If not already produced, the Government is to furnish expert disclosure, Palmer, Jr.’s, motion for this relief is granted.

X. District Court Motions

Defendants seeks various forms of relief that are best determined by the District Judge that would hear the trial of this case. These include their request for an audibility hearing, exclusion of hearsay under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), production of the Government’s Summaries, defense participation in voir dire, and Smerka’s severance motion (Docket No. 84, Atty. Affirm. ¶¶ 64-69). These issues are better considered by the District Judge prior to trial and are deferred for that consideration.

XI. Franks Hearing

A. Palmer, Sr., and Palmer, Jr.

Palmer, Sr., (and those joining as it applies to them, including Palmer, Jr., Docket No. 78, Palmer, Jr., Atty. Affirm. ¶3; Docket No. 86, Palmer, Jr., Atty. Affirm. ¶ 109) next seeks a Franks hearing contending that the issuing judge was not informed that boilerplate text was used in the supporting affidavit and that more surveillance occurred than was stated in that affidavit to justify the (wiretap) warrant (Docket No. 74, Palmer, Sr., Atty. Affirm. ¶¶ 103-08), seeking prehearing disclosure on the Franks issues (id. ¶¶ 109-12). The Government opposes a Franks hearing for its wiretap applications, arguing that defendants failed to plead a proper basis for that hearing (Docket No. 90, Gov’t Response to Palmer, Sr., Motion ¶ 28; see also Docket No. 88, Gov’t Response to Palmer, Jr., Motion ¶ 27). Defendant only points to the use of boilerplate text and that alone does not sufficiently raise the issue for a Franks hearing (Docket No. 90, Gov’t Response to Palmer, Sr., Motion ¶¶ 28-31; see also Docket No. 88, Gov’t Response to Palmer, Jr., Motion ¶¶ 28-30).

A defendant is entitled to a hearing under Franks if a substantial showing is made that the warrant affidavit contains a false or omitted statement; that the statement was included intentionally or recklessly; and that the statement was an integral to the probable cause finding, Franks, supra, 438 U.S. 154, 98 S.Ct. 2674 (see, e.g., Docket No. 88, Gov’t Response to Palmer, Jr., Motion ¶ 27). Palmer, Sr., and Palmer, Jr., each fail to show that any false or omitted statement was in the warrant affidavit and that the falsity or omission was integral to the probable cause finding. Thus, their respective motions for a Franks hearing are denied.

B. Krajas

Krajas also moves for a Franks hearing regarding omissions from the record for issuance of the wiretap Order, complaining that the agent’s affidavit contains boilerplate allegations that have been rejected in other courts (Docket No. 76, Krajas Atty. Affirm. ¶¶ 29-35, 34). Krajas argues that there were material omissions in the wiretap application by not disclosing the criminal background of CS-1, the confidential source relied upon as the basis for seeking the wiretap, as well as purported personal bias of CS-1 (Docket No. 93, Krajas Memo, at 2-3). Looking at whether probable cause was established, Krajas points out that the affiant agent relied upon information provided by confidential sources (id. at 7; Docket No. 83, Ex. A, Aff. of Marcello Falconetti at 4-5). Krajas complains that it is not clear from the affidavit whether one or multiple confidential sources were relied upon (Docket No. 93, Krajas Memo, at 7). As for CS-1, Krajas argues that the omissions on the reliability of CS-1 materially affected the application (id. at 8). As-for CS-2, Krajas argues alternatively that CS-2 rejects the necessity argument for wiretap (since it is believed that CS-1 lived in Krajas’ household, see Docket No. 76, Krajas Atty. Aff. ¶ 21) and that CS-2 was unreliable (Docket No. 93, Krajas Memo, at 8-12). In anticipation of a Franks hearing, Krajas also seeks pre-hearing disclosure of all documents which might tend to show that the Government had failed to disclose all of the information required by statute (Docket No. 76, Krajas Atty. Aff. ¶¶ 36-38), listing specific categories of documents (id. ¶ 39).

The Government responds that Krajas’ allegations about the facts not disclosed to the issuing judge (about CS-1 living with defendant, his theft of $6,000, and pending criminal charges against him) did not affect the Court’s probable cause decision in issuing the wiretap Order (Docket No. 87, Gov’t Response to Krajas Motion ¶ 28). The Government concludes that sufficient probable cause was shown for issuance of the wiretap Order (id. ¶ 30). In its supplement, the Government points out that the affiant agent, Marcello Falconetti, was not aware of CS-l’s criminal charges before or during the wiretaps (Docket No. 95, Gov’t Supp’al Response at 3-4; id., Ex. A, Falconetti Aff. of Apr. 9, 2012, ¶¶ 3-4). The omission of CS-l’s criminal record was not necessary for the probable cause determination that Krajas was committing drug trafficking crimes over his cellular telephone and Krajas failed to show that this omission was intentional or reckless (Docket No. 95, Gov’t Supp’al Response at 4-5, Ex. B (wiretap Order)). Even if CS-1 is excluded from consideration, the Government concludes that this Court had ample information to support probable cause from CS-2, from prior purchases of cocaine by CS-2 from Krajas and controlled purchases from Krajas by CS-2 and CS-2 stating that Krajas used the telephone to conduct drug trafficking (id. at 5-6).

Again, Krajas needs to make a substantial showing that the warrant affidavit contains a false or omitted statement; that the statement was included intentionally or recklessly; and that the statement was an integral to the probable cause finding in order to be entitled to a Franks hearing, Franks, supra, 438 U.S. 154, 98 S.Ct. 2674. A review of the wiretap application shows that probable cause was established through CS-2 activities and interactions with Krajas. According to Agent Falconetti, CS-2 had made drug transactions with Krajas by calling Krajas on the cellular telephone that was to be monitored (Docket No. 83, Krajas Ex. A, Wiretap Application, Ex. C, Falconetti Aff. ¶¶ 17(a)(i), (ii), 20-34). CS-1, who Krajas now identifies and objects to omissions about his background, connects Palmer, Jr., as the supplier of cocaine to Krajas (id. ¶¶ 34(a), 16, 16(a)(i)-(ii)). CS-1 states that Krajas uses his cellular telephone to then sell these drugs (id. ¶ 16(a)(v)). But Krajas points to instances where CS-2 controlled when consensual conversations were recorded and, when not recorded, how Government agents had to rely upon CS-2’s version of the conversations (Docket No. 93, Krajas Memo, at 11-12).

Krajas has established that facts were omitted from Chief Judge Skretny in applying for the wiretap and that these statements (and the credibility findings that could be drawn from them) were integral to finding probable cause for the wiretap. Therefore, a Franks hearing will be held; a separate Order will notice that hearing.

XII. Reciprocal Discovery

As noted above, the Government in responding to these defendants seeks reciprocal discovery from them (Docket Nos. 90 ¶ 32; 87 ¶ 31; 91, ¶ 15; 89, ¶ 13; 88, ¶ 31). Although some of the defendants joined in the moving defendants’ motions, the Government responded to the individual motions and sought reciprocal discovery expressly in those responses; the Government did not file either a further motion for discovery from the joining defendants or file an omnibus response that presumably would include the joining defendants’ motions. Defendants (movants and those joining) apparently have no opposition to the reciprocal motions. Under Rule 16, the Government is entitled to production of documents in a defendant’s possession that the defendant intends to use in his case-in-chief. Each defendant is reminded of his or her obligations under Rule 16 and Federal Rules of Evidence 803(24) and 804(b)(5) to produce pursuant to the Government’s notice for reciprocal discovery. The Government’s motions are therefore granted. The issue, then, is whether this grant includes the joining defendants as well as the movants. Borkowski joined as to particular relief asserted by some of the defendants, including discovery as sought by Palmer, Sr. (Docket No. 80), as has Alexander (Docket No. 81, Alexander Atty. Affirm. ¶ 3a.), Simmons (Docket No. 77, Simmons Atty. Affirm. ¶ 3), and Carluccio joined in the motions filed by Krajas and Palmer, Sr. (Docket No. 82, Carluccio Atty. Affirm. ¶ 3; see also Docket Nos. 84, 78, 85-86 (moving defendants’ joinder motions)). If the moving defendants are bound to provide reciprocal discovery to the Government, those joining them for their discovery relief are also bound to produce reciprocal discovery. Since the joining defendants did not qualify their joinder or exclude seeking discovery relief, they are bound by the Government’s reciprocal discovery motion. Therefore, all moving and joining defendants are to produce reciprocal discovery.

CONCLUSION

For the reasons stated above, certain defendants’ motions joining in omnibus motions filed by codefendants (Docket Nos. 81 (Alexander); 80, 96 (Borkowski); 82 (Carluccio); 77 (Simmons); 84 (Smerka); 85, 86, 78 (Palmer, Jr.)) are granted; defendants’ omnibus motions (Docket Nos. 74, Palmer, Sr.; 75, 76, Krajas; 84, Smerka; 72, Stone; and 85, 86, Palmer, Jr.) and are granted in part, denied in part or deferred for consideration by the District Judge as discussed in detail above. In particular, as for defendants’ motions for a Franks hearing, it is denied as to Palmer, Sr. (Docket No. 74) and those defendants joining him, and granted as to Krajas (Docket No. 76). That Franks hearing as to Krajas will be set in a separate Order.

The Government’s motions for reciprocal discovery (Docket Nos. 90 ¶32; 87 ¶ 31; 91, ¶ 15; 89, ¶ 13; 88, ¶ 31) is granted as to all moving and joining defendants.

The motions by Palmer, Sr. (Docket No. 94), and Krajas (Docket No. 97) for extension of time to supplement their earlier motions are denied as moot.

So Ordered.

Order

Before the Court is the Government’s motion (Docket No. 108) for reconsideration of the decision to hold a Franks hearing for defendant George Krajas (Docket No. 103, Order of July 19, 2012, at 31-33, 33; of. Docket No. 76, Krajas Motion). Responses to this motion were due by August 8, 2012, and the motion was argued on August 10, 2012 (text minute entry, Aug. 10, 2012), and deemed submitted as of that date (Docket No. 112). As a result of that motion, the Franks hearing scheduled for August 10, 2012 (see Docket No. 106; Docket No. 103, Order of July 19, 2012, at 31-33, 33), was canceled (Docket No. 112). Familiarity with these prior Orders is presumed.

BACKGROUND

Defendants were indicted on June 16, 2011, in a multiple count Indictment for conspiracy by all eleven defendants to possess with intent to distribute cocaine, cocaine base, marijuana, and hydrocodone from at least November 2010, to the date of the Indictment (Docket No. 1, Indict., Count 1). Two defendants also were charged with seven individual counts of possession of cocaine, cocaine base or marijuana by George Krajas or Charles Palmer, Sr., or by both Krajas and Palmer, Sr., together (id. Counts 2-8). The Indictment also charges a forfeiture allegation against premises on Broadway in Buffalo, New York (id. at pages 7-8). The alleged possessions occurred in November of 2010, May and June of 2011 (id., Counts 2-8).

This was a portion of one omnibus motion (among several filed by codefendants), wherein defendant Krajas sought a Franks hearing regarding omissions from the record for issuance of the wiretap Order, complaining that the agent’s affidavit contains boilerplate allegations that have been rejected in other courts (Docket No. 76, Krajas Atty. Affirm. ¶¶ 29-35, 34). Krajas argued that there were material omissions in the wiretap application by not disclosing the criminal background of CS-1, the confidential source relied upon as the basis for seeking the wiretap, as well as purported personal bias of CS-1 (Docket No. 93, Krajas Memo, at 2-3). Looking at whether probable cause was established, Krajas pointed out that the affiant agent relied upon information provided by confidential sources (id. at 7; Docket No. 83, Ex. A, Aff. of Marcello Falconetti at 4-5). Krajas complained that it was not clear from the affidavit whether one or multiple confidential sources were relied upon (Docket No. 93, Krajas Memo, at 7).

The Government relied upon two informants, identified for now as CS-1 and CS-2, to support probable cause for the wiretap Order. As for CS-1, Krajas argued that the omissions on the reliability of CS-1 materially affected the application (id. at 8). As for CS-2, Krajas argued alternatively that with CS-2 the necessity argument for wiretap was removed (since it is believed that CS-1 lived in Krajas’ household, see Docket No. 76, Krajas Atty. Aff. ¶ 21) and that CS-2 was unreliable (Docket No. 93, Krajas Memo, at 8-12). In anticipation of a Franks hearing, Krajas also sought pre-hearing disclosure of all documents which might tend to show that the Government had failed to disclose all of the information required by statute (Docket No. 76, Krajas Atty. Aff. ¶¶ 36-38), listing specific categories of documents to be produced (id. ¶ 39).

The Government responded that Krajas’ allegations about the facts not disclosed to the issuing judge (about CS-1 living with defendant, his theft of $6,000, and pending criminal charges against him) did not affect the Court’s probable cause decision in issuing the wiretap Order (Docket No. 87, Gov’t Response to Krajas Motion ¶28). The Government concludes that sufficient probable cause was shown for issuance of the wiretap Order (id. ¶ 30). In its supplement, the Government pointed out that the affiant agent, Marcello Falconetti, was not aware of CS-l’s criminal charges before or during the wiretaps, in fact learning of the pending local court charges a year later in January 2011 (Docket No. 95, Gov’t Supp’al Response at 3-4; id., Ex. A, Falconetti Aff. of Apr. 9, 2012, ¶¶ 3^). Falconetti did not inquire further about the nature of those pending charges in 2011 because CI-1 was represented by counsel in that matter (id., Ex. A, Falconetti Aff. of Apr. 9, 2012, ¶ 4). The omission of CS-l’s criminal record was not necessary for the probable cause determination that Krajas was committing drug trafficking crimes over his cellular telephone and Krajas failed to show that this omission was intentional or reckless (Docket No. 95, Gov’t Supp’al Response at 4-5, Ex. B (wiretap Order)). Even if CS-1 is excluded from consideration, the Government concludes that this Court had ample information to support probable cause from CS-2, from prior purchases of cocaine by CS-2 from Krajas, from the controlled purchases from Krajas by CS-2, and CS-2 stating that Krajas used the telephone to conduct drug trafficking (id. at 5-6). , (See Docket No. 103, Order of July 19, 2012, at 31-32.)

This Court granted Krajas’ motion (id. at 32-33), stating

“Again, Krajas needs to make a substantial showing that the warrant affidavit contains a false or omitted statement; that the statement was included intentionally or recklessly; and that the statement was an integral to the probable cause finding in order to be entitled to a Franks hearing, Franks, supra, 438 U.S. 154, 98 S.Ct. 2674. A review of the wiretap application shows that probable cause was established through CS-2 activities and interactions with Krajas. According to Agent Falconetti, CS-2 had made drug transactions with Krajas by calling Krajas on the cellular telephone that was to be monitored (Docket No. 83, Krajas Ex. A, Wiretap Application, Ex. C, Falconetti Aff. ¶¶ 17(a)(i), (ii), 20-34). CS-1, who Krajas now identifies and objects to omissions about his background, connects Palmer, Jr., as the supplier of cocaine to Krajas (id. ¶¶ 34(a), 16, 16(a)(i)-(ii)). CS-1 states that Krajas uses his cellular telephone to then sell these drugs (id. ¶ 16(a)(v)). But Krajas points to instances where CS-2 controlled when consensual conversations were recorded and, when not recorded, how Government agents had to rely upon CS-2’s version of the conversations (Docket No. 93, Krajas Memo, at 11-12).”
“Krajas has established that facts were omitted from Chief Judge Skretny in applying for the wiretap and that these statements (and the credibility findings that could be drawn from them) were integral to finding probable cause for the wiretap. Therefore, a Franks hearing will be held; a separate Order will notice that hearing.”

(Id.)

The Government now moves for reconsideration, arguing that this Court failed to indicate which specific facts were omitted from Chief Judge Skretny in his consideration of the wiretap application and whether those facts were integral to the finding of probable cause (Docket No. 108, Gov’t Motion at 1-2). The Government also faults the Order for not addressing whether defendant made a “substantial preliminary showing” that the affiant, Federal Bureau of Investigation agent Marcello Falconetti, made omissions knowingly and intentionally- or with reckless disregard for the truth, as required for a Franks hearing (id. at 2). The Government concludes that this Court did not demonstrate that Krajas had established any of the elements necessary for a Franks hearing — a false statement or material omission; made knowingly, intentionally, recklessly; and was necessary for finding probable cause (id.).

The Government contends that Falconetti was not aware of the omission Krajas points to, the fact that CS-1 lived with Krajas.

DISCUSSION

I. Applicable Standards

A. Reconsideration Standard in Criminal Prosecutions

Unlike the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure have no express provision for reconsideration of Orders. In this District, Judge Larimer in another case has held that a Magistrate Judge had the “discretion to reconsider or reopen prior proceedings which precipitated” the Magistrate Judge’s decision, United States v. Florack, 155 F.R.D. 49, 51 (W.D.N.Y.1994). In Flo-rack, the Government sought reconsideration (pursuant to then Federal Rule of Criminal Procedure 12(f)) by Magistrate Judge Fisher of his refusal to allow the Government to argue an otherwise defaulted suppression motion, id. at 50-51; see id. at 51-52 (Report & Rec. of Fisher, Mag. J.). Judge Siragusa of this Court held in United States v. Amanuel, No. 05CR6075, 2006 WL 266560, at *1 (W.D.N.Y. Jan. 31, 2006), that the civil standard for reconsideration is applicable in criminal cases, that the standard for reconsideration is “strict” and reconsideration “will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court,” id. (internal quotations and citations omitted).

B. Franks v. Delaware

Under Franks a defendant may challenge whether false or material omission of material was presented to the judge considering a warrant or wiretap application. Where “a defendant has made a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request,” 438 U.S. at 155-56, 98 S.Ct. 2674; see id. at 171, 98 S.Ct. 2674. As held in Franks,

To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. ... Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing.

Id. at 171-72, 98 S.Ct. 2674 (footnote omitted). There is a presumption of validity with respect to the supporting affidavit for warrant and wiretap applications, id. at 171, 98 S.Ct. 2674.

II. Application

A. Reconsideration

Here, the Government points to elements of the standard for granting a Franks hearing that were overlooked. The initial Order did not clearly indicate the false statement or omission at issue for a hearing. The issues that warranted a hearing were (a) whether CS-l’s connection with Krajas was disclosed to Chief Judge Skretny and (b) whether the fact the CS-2 controlled whether or not his conversations were being recorded. Therefore, reconsideration is granted.

B. Defendant Preliminary Showing

The Government contends that Krajas has not made a sufficient “substantial preliminary showing” to warrant a Franks hearing (Docket No. 108, Gov’t Motion at 1-2). As previously found (Docket No. 103, Order of July 19, 2012, at 32-33), Krajas has met that substantial preliminary showing. First, Krajas faults reliance upon CS-1 since he lived with him and committed offenses against him. Second, Krajas questions how controlled the transactions that allegedly occurred with CS-2 since CS-2 controlled when consensual conversations with defendant were recorded or not recorded {id.; see also Docket No. 93, Krajas Memo, at 11-12). Having met that threshold, this Court must examine whether there were false statements or material omissions from the application for the wiretap, whether these falsehoods or omissions were knowing, and whether the statements at issue were necessary to show probable cause.

C. Whether False Statement or Material Omission Was Made?

issue here are material omisomisabout CS-l’s criminal history (in(inthe alleged robbery from Krajas) and how CS-2 conducted his consensual monitoring to justify issuance of the wirewireno one claims that false statements were made. The Government claims that agent Falconetti did not know CS-l’s criminal history. As for CS-2, the GovGovstates that most of the conversaconversawere consensually recorded by CS-2 (Docket No. 108, Gov’t Motion at 3-4) but does not address the issue of CS-2’s conconover the recording process.

D. Knowing, Intentional or Reckless Statement or Omission?

The Government claims that agent Falconetti did not know of CS-l’s criminal history and, later argued, that Falconetti could not (consistent with Justice Department policy) contact a represented party (here CS-1) to learn that history. Other sources, such as the District Attorney’s office or Town Court, were identified that Falconetti could have checked.

Affiant Falconetti should have learned the criminal history of CS-1 before producing him as a source for probable cause for a wiretap, even if this due diligence required him to contact the District Attorney or other law enforcement (or run a state arrest record report) to learn if there were anything that would taint the informant’s credibility. He did not need to violate Justice Department regulations and make a direct inquiry of the represented informant outside the presence of counsel; Falconetti could have had CS-l’s counsel present when asking. But, Falconetti did not do this and relied upon the agent’s limited knowledge of the criminal history of CS-1. At worst, this was negligence on the agent’s part and not sufficient grounds for a Franks hearing, cf. Franks, supra, 438 U.S. at 171, 98 S.Ct. 2674.

But keeping the material arising from CS-1, there is a sufficient basis to support a finding of probable cause and, despite any misgivings regarding CS-2, there is no basis for a Franks hearing.

E. Statement Necessary for Probable Cause?

Finally, the Government points to the statements of two other informants, CS-3 and CS^4, as further support for issuance of the wiretap Order (Docket No. 108, Gov’t Motion at 4). But these are regarding the activities of Charles Palmer, Sr., which might support a wiretap as to Palmer but cannot be used as probable cause as to Krajas. The only connection between the criminal activity and Krajas are CS-1 and CS-2. Thus, their statements were necessary to establish probable cause to warrant a wiretap as to Krajas.

F. In Summary

Upon reconsideration, this Court finds that Krajas made a substantial preliminary showing for inquiry whether a Franks hearing should be held. The statements of CS-1 and CS-2 were necessary to establish probable cause to monitor Krajas’ telephone. There was an omission from the facts presented to Chief Judge Skretny in CS-l’s recent criminal history, but that omission was only due to the negligence of the affiant agent as to CS-1. That is not a sufficient basis for a Franks hearing. Given that there was probable cause from CS-l’s statements, the fact that CS-2 controlled the consensual recording process (rather than Government agents) and that this may be a material omission not told to the Chief Judge, if putting CS-2’s material to one side “there remains sufficient content in the warrant affidavit to support a finding of probable cause, no [Franks ] hearing is required,” Franks, supra, 438 U.S. at 172, 98 S.Ct. 2674.

CONCLUSION

For the reasons stated above, the Government’s motion (Docket No. 108) for reconsideration of the Order for a Franks hearing for defendant George Krajas is granted and upon that reconsideration Krajas’ motion for a Franks hearing (Docket No. 76, Krajas Atty. Affirm. ¶¶ 29-35) is denied.

So Ordered. 
      
      . Eleven defendants were named in this Indictment, nine of them have moved or joined in motions; Vunnal Blair has not moved and, as discussed below, Gregory Miller has not moved.
     
      
      . At a status conference before Magistrate Judge Schroeder, Miller and the Government reported that a plea agreement was reached and plea date set before Chief Judge Skretny, text of minute entry, June 13, 2012.
     
      
      . See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
     
      
      . The Government declines to identify CS-1 or confirm Krajas’ identification, Docket No. 87, Gov't Response to Krajas, at 14 n. 1.
      
     
      
      .In support of its motion, the Government submits its Motion, Docket No. 108. In opposition, defendant Krajas submits his Reply Memorandum to Government's Motion for Reconsideration, Docket No. 116.
     
      
      . See Franks v. Delaware, 438 U.S. 154, 98 S.Ct 2674, 57 L.Ed.2d 667 (1978).
     
      
      . The Government declined to identify CS-1 or confirm Krajas’ identification, Docket No. 87, Gov't Response to Krajas, at 14 n. 1.
     
      
      . Now, in part, Federal Rule of Criminal Procedure 12(e).
     