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United States v. Massat

United States District Court, D. South Dakota, Western Division

January 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT CHARLES MASSAT, Defendant.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         INTRODUCTION

         Defendant Robert Massat filed a third motion to dismiss the indictment based on duplicity and vagueness, a second motion to compel disclosure of the grand jury transcript and a motion for a bill of particulars. (Dockets 68, 70 & 76). Mr. Massat also filed first and second motions to compel discovery. (Dockets 81 & 102). The government opposed defendant's motions. (Dockets 86-88, 90 & 104).

         The motions were referred to United States Magistrate Judge Daneta Wollmann pursuant to 28 U.S.C. § 636(b)(1)(B) and the standing order of March 9, 2015. Magistrate Judge Wollmann issued a report and recommendation (“R&R”) on defendant's third motion to dismiss, second motion to compel disclosure and motion for a bill of particulars. (Docket 144). The R&R recommended defendant's third motion to dismiss, second motion to compel disclosure and motion for a bill of particulars be denied. Id. at p. 13. The magistrate judge also entered an order denying defendant's two motions to compel discovery (“Discovery Order”). (Docket 145). The Discovery Order denied a number of requests in the first motion to compel discovery as moot, denied another request and denied in full the second motion to compel discovery. Id. at p. 6. Mr. Massat timely filed objections to the R&R and timely filed objections in his appeal of the Discovery Order. (Dockets 146-47).

         Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the magistrate judge's proposed findings and recommendations, the district court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. See also Fed. R. Crim. P. 59(b)(3). The court completed a de novo review of those portions of the R&R to which objections were filed. For the reasons stated below, the court finds the magistrate judge's report and recommendation is an appropriate application of the law to the facts presented by the parties. For the reasons stated below, the defendant's objections are overruled and the report and recommendation of the magistrate judge is adopted in its entirety.

         Under § 636(b)(1)(A), the district court “may reconsider any pretrial matter . . . where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.” For the reasons stated below, the court finds the Discovery Order is neither “clearly erroneous” nor “contrary to law.” Id. Defendant's objections to the Discovery Order are overruled and the Discovery Order is affirmed.

         DEFENDANT'S OBJECTIONS TO THE R&R

         Mr. Massat objects to the R&R asserting the magistrate judge erred in making the following conclusions:

1. The magistrate judge erred when she concluded “no evidence supports Mr. Massat's claim that the government possess [sic] evidence of more than one conspiracy.” (Docket 146 at p. 2).
2. The magistrate judge erred when she concluded “Mr. Massat presents no evidence to overcome the ‘strong presumption of regularity afforded grand jury proceedings.' ” Id. at pp. 2-3.
3. The magistrate judge erred when she concluded “Mr. Massat's argument that the indictment should be dismissed to avoid a variance at trial is meritless.” Id. at p. 3.
4. The magistrate judge erred when she concluded “Mr. Massat seeks to use the bill of particulars as a discovery device.” Id. at p. 4.
5. The magistrate judge erred when she concluded “Mr. Massat misstated the requirements of Federal Rule 26.2 . . . .” Id. at p. 5.
6. The magistrate judge erred when she “incorrectly cited to United States v. Broyles, 37 F.3d 1314, 1315 (8th Cir. 1994) . . . .” Id. at p. 6.

         Each of these objections will be addressed.

         DEFENDANT'S OBJECTIONS TO THE DISCOVERY ORDER

         Mr. Massat appeals from the Discovery Order on the following grounds:

1. The magistrate judge erred when she concluded “Mr. Massat broadly argues-with no specificity or clarification-that the requested information is discoverable under the Jencks Act[1]and Brady v. Maryland, 373 U.S. 83 (1963).” (Docket 147 at p. 2).
2. The magistrate judge's “order ‘denying' Items 1-15 & 17-28 ‘as moot' is clearly erroneous.” Id. at p. 3.
3. The magistrate judge's order as it relates to item 16 “is clearly erroneous when it states that ‘Mr. Massat requests disclosure of communications between local, state, or federal agents involved in this case and government witnesses.” Id.
4. The magistrate judge's order on the second motion to compel discovery is clearly erroneous when she found “that non-disclosure of Mr. Bessman's PSR ‘does not violate Mr. Massat's right.' ” Id. at p. 5.

         Each of these objections will be addressed.

         ANALYSIS

         Mr. Massat was indicted for the offense of conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). (Docket 1). The indictment alleges:

Beginning on or about 2013, and continuing through the date of this Indictment, in the District of South Dakota and elsewhere, the defendant, Robert Charles Massat, did knowingly and intentionally combine, conspire, confederate and agree with others known and unknown to the Grand Jury to knowingly and intentionally distribute and to possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, and salts of its isomers, a Schedule II controlled substance . . . .

Id.

         Mr. Massat filed a third motion to dismiss the indictment based on duplicity and vagueness.[2] (Docket 68). He asserts the indictment is defective because “the Government has alleged one large conspiracy by the single count indictment . . . where in fact, several separate conspiracies may exist from the discovery . . . provided to the Defendant so far.” (Docket 69 at p. 2). Mr. Massat claims he “has always understood that the conspiracy he is defending against is the ‘Trevor Ray Conspiracy.' ” Id. at p. 3. He argues the government changed that perception of the conspiracy when it asserted:

The defendant has correctly identified some of his coconspirators . . . . The defendant is wrong in supposing that the evidence advanced at his trial will be limited to that involving Trevor Ray and those individuals identified in the proceedings against Ray. The defendant has multiple sources of methamphetamine and distributed through individuals not directly related to Ray.

Id. (citing Docket 44 at pp. 4-5). Mr. Massat contends he “no longer understands what conspiracy is alleged against him.” Id.

         The magistrate judge concluded the indictment was neither vague nor duplicitous.

The fact that a variety of known and unknown individuals may have joined in the drug distribution scheme does not mean that Mr. Massat participated in multiple conspiracies. . . . The indictment additionally provides Mr. Massat with a timeframe in which the conspiracy allegedly took place. No evidence supports Mr. Massat's claim that the government possesses evidence of more than one conspiracy.

         (Docket 144 at p. 6) (referencing United States v. Roach, 164 F.3d 403, 412 (8th Cir. 1998)). The magistrate judge rejected Mr. Massat's argument that the evidence at trial may be at variance with the evidence presented to the grand jury.

The indictment fully and fairly notifies Mr. Massat that he is charged with conspiracy to distribute methamphetamine between 2013 and July 21, 2015. The indictment includes the elements of the offense, provides adequate notice of the issues to be litigated, and enables Mr. Massat to plead double jeopardy as a bar to further prosecution. . . . The simple fact that some of the co-conspirators changed over time, or remain unknown, does not mean that the government's evidence will produce a variance at trial.

Id. at p. 7 (referencing Roach, 164 F.3d at 412, and United States v. Buchanan, 574 F.3d 554, 556 (8th Cir. 2009)). For these reasons, the R&R recommended defendant's third motion to dismiss ...


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